BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS,
INC.
and KENDALL COUNTY LAND
AND CATTLE, LLC,
Petitioner
v.
COUNTY BOARD OF KENDALL
COUNTY,
ILLINOIS,
Respondent
)
)
)
PCB 09-43
)
)
(Pollution Control Board Facility
)
Siting
)
Appeal)
)
)
)
)
)
)
NOTICE OF FILING
To: All Counsel of Record, See Attached Service List
PLEASE TAKE NOTICE that the undersigned has, on this 5th day of May, 2009,
caused to be filed with the Clerk of the Illinois Pollution Control Board, via electronic
filing,
the attached
County Board's Reply in Support
of
Its Motion
to
Dismiss
Portions
of
Amended Petition
on behalf of the County Board of Kendall County,
Illinois, a copy of which is herewith served on you.
James
F. McCluskey
James S. Harkness
Jennifer
L. Friedland
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL
60532
Tel: (630) 434-0400
Fax: (630) 434-0444
jfmccluskey@momlaw.com
jharkness@momlaw.com
jfriedland@momlaw.com
W:\26 _59\4587 .080523\Pleadings\NOF 5.5.09 .doc
Respectfully submitted,
County Board
of Kendall County, Illinois
By:
Is/James
S. Harkness
Electronic Filing - Received, Clerk's Office, May 5, 2009
PROOF OF SERVICE
Under penalties as provided
by law, pursuant to Section 1-109 of the Code of Civil
Procedure,
Sabrina Sanders, the undersigned non-attorney certifies that she served a true and
correct copy
of the foregoing Notice of Filing and all referenced enclosures, by (1) e-mail
transmission and
(2) U.S. Mail to all respective addresses as listed on the Service List from Lisle,
Illinois 60532 on May 5,
2009.
James F. McCluskey
James
S. Harkness
Jennifer
L. Friedland
Momkus McCluskey, LLC
100 1 Warrenville Road, Suite 500
Lisle, IL 60532
Tel: (630)
434-0400
Fax: (630) 434-0444
jfmccluskey@momlaw.com
jharkness@momlaw.com
jfriedland@momlaw.com
W:\26_59\4S87.080523\Pleadings\NOF 5.S.09.doc
lsI
Sabrina Sanders
Electronic Filing - Received, Clerk's Office, May 5, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS,
INC.~dKENDALLCOUNTYLAND
AND CATTLE, LLC,
Petitioner
v.
COUNTY BOARD OF KENDALL
COUNTY, ILLINOIS,
Respondent
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 09-43
(Pollution Control Board Facility Siting
Appeal)
SERVICE LIST
Waste Management of Illinois, Inc. and
Kendall County Land and Cattle, LLC
Donald
J.
Moran
Pedersen
&
Houpt
161 North Clark Street, Suite 3100
Chicago, IL 60601
312-261-2149
312-261-1149 - Fax
Email: dmoran@pedersenhoupt.com
Eric C. Weis
Kendall County State's Attorney
807 West John Street
Yorkville,
IL 60560
Email: eweis@co.kendaILiLus
Village of Minooka
Daniel
J.
Kramer
Law Office of Daniel J. Kramer
1107 A S. Bridge Street
Yorkville,
IL 60560
Email: dkramer@dankramerlaw.com
Interested Party
-
City
of
Morris
Scott M. Belt
Belt, Bates
&
Associates
105 E. Main Street, Suite 206
Morris, IL 60450
E-Mail:
scottbelt@msn.com
Bradley P. Halloran
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
Email: haliorab@ipcb.state.iLus
Debbie Gillette
Kendall County Clerk
111 Fox Street
Yorkville,
IL 60560
Kankakee Regional Landfill, LLC
George Mueller
Mueller Anderson, P.C.
609
East Etna Road
Ottawa, IL 61350
Email: george@muelleranderson.com
Interested Party
-
Grundy County
Charles F. Helsten
Richard S. Porter
Hinshaw & Culbertson, LLP
100 Park
Avenue
P.O. Box 1389
Rockford,
IL 61105-1389
Email: chelsten@hinshawlaw.com
rporter@hinshawlaw.com
Electronic Filing - Received, Clerk's Office, May 5, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE
MANAGEMENT OF ILLINOIS, INC.)
and KENDALL COUNTY LAND AND
)
CATTLE,
LLC,
)
PCB
09-43
)
Petitioners,
)
)
vs.
)
)
(Pollution Control Board Facility
Siting Appeal)
COUNTY BOARD OF
KENDALL COUNTY, )
ILLINOIS, et. a/.,
)
)
Respondent.
)
COUNTY BOARD'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
PORTIONS OF
AMENDED PETITION
NOW COMES Respondent, COUNTY BOARD OF KENDALL COUNTY,
ILLINOIS ("County
Board"), by its attorneys MOMKUS McCLUSKEY, LLC, and as its
Reply
in Support of its Motion to Dismiss Portions of Amended Petition, states as
follows:
INTRODUCTION
The County Board's 735 ILCS
5/2-619
Motion to Dismiss Portions of Amended
Petition for Hearing to Contest
Site Location Denial ("Motion to Dismiss") should be
granted because the fundamental fairness claims at issue in the Motion to Dismiss are
determinable
solely from the record of the underlying proceedings and application of the
law.
Here, the County Board has moved to dismiss only those allegations-more
correctly, claims-related to the hearing officer's
rulings to strike late-filed evidence. If
the hearing officer had authority to, and correctly reached the decision to, strike the late-
filed evidence, Petitioners have no claim related thereto. The terminal questions are:
did the record contain the information sought to
be submitted prior, or was it, in fact late-
filed
evidence?
Electronic Filing - Received, Clerk's Office, May 5, 2009
The record affirmatively negates Petitioners' claims and this limited issue should
be summarily dismissed.
DISCUSSION
I.
In This Case, Seeking Dismissal Of Allegations, As Opposed To Claims, Is
Proper.
In this appeal, the Petitioners' assert the following grounds (or, better stated,
claims) for appeal:
"10.
The hearing officer improperly struck the public comment
filed October 28, 2008 by WMII, in violation of Section 39.2(c) of the Act
and of
Articles 6 and 7 of the Amended and Restated Kendall County Site
Approval Ordinance for Pollution Control Facilities ("Ordinance No. 08-
15").
11.
The hearing
• I •
officer improperly struck
.
a portion of the
written findings of the County Board's legal counsel, in violation of
Sections 8.4 and 9.2 of Ordinance
No. 08-15." (Exhibit A, Amended
Petition).
The County Board seeks
to narrow the issues, or permissible claims, as a matter
of
law.
The County Board filed a §2-619 Motion to Dismiss that seeks to dismiss
allegations of fundamental unfairness made by Petitioners in their Amended Petition for
Hearing
to Contest Site Location Denial ("Amended Petition"). In their response to the
Motion to Dismiss, Petitioners argue that
"the purpose and scope of Section 2-619 of the
Code is to dismiss "claims" based on defects of [sic] defenses that defeat the claim, and
thus does not authorize the dismissal of
'allegations' ... " (Petitioners' Response, p. 2).
However, Petitioners cite no statutes or case law that specifically support this position,
and, indeed, Petitioners' argument is belied by the Amended Petition.
2
Electronic Filing - Received, Clerk's Office, May 5, 2009
Further, the reason th'at. the County Board is seeking to dismiss certain
allegations, as opposed to claims, is because the Amended Petition does not articulate
any causes
of actions or claims, but simply lists allegations and then seeks reversal of
the County Board's siting denial. (Ex. A). In the Amended Petition, the Petitioners do
not separate their allegations into cause
of actions, claims, or even counts. (Ex. A).
However, as stated above, the Amended Petition's
allegations fall into two categories:
(i) fundamental unfairness and (ii) whether the County Board's denial was
or was not
supported by the record, against the manifest weight
of the evidence and contrary to
law.
Pursuant to 735
ILCS 5/2:":613(a), "[p]arties may plead as many causes of action,
counterclaims, defenses, and matters
in reply as they may have,
and each shall be
separately designated and
numbered."
(Emphasis added). While multiple causes of
action may be joined, each cause of action must be separately designated and
numbered. Herman
v. Hamblet, 81 III.App.3d 1050, 1056 (1
st
Dist. 1980) (affirming
dismissal
of complaint because it improperly purported to allege multiple causes of
action in a single count).
While Petitioners seek one remedy, that is reversal
of the County Board's siting
decision, they offer several different legal bases for a reversal, including fundamental
'.'
unfairness of the siting proceedings and that the County Board's decision was
unsupported by the record and against the manifest weight
of the evidence. (Ex. A, pp.
2-3). Therefore, the Amended Petition inappropriately combines several causes
of
action into a list of allegations in violation of 735 ILCS 5/2-613(a), which requires that
causes
of actions, or claims, be separately designated and numbered into counts. 735
ILCS 5/2-613(a); Herman, 81 III.App.3d at 1056.
Because the Amended Petition improperly offers no separate counts, claims or
causes of action, the County Board is forced to seek dismissal of individual allegations,
3
Electronic Filing - Received, Clerk's Office, May 5, 2009
which, in actuality, are claims disguised as allegations. Indeed, in their response to the
Motion
to Dismiss, Petitioners apparently inadvertently refer to their "claim" of
fundamental unfairness
in a sentence that reads as follows: "Moreover, the County
Board has not presented any
"affirmative matter" that negates Petitioners'
claim
of
fundamental
unfairness." (Emphasis added). (Ex. A, p. 2). Clearly, the Petitioners
themselves view their
"allegations" as claims.
Pursuant to
735 ILCS
5/2-619,
a Defendant may "file a motion for dismissal of
the action
or for other appropriate relief
upon any of the following grounds."
(Emphasis added). Here, it is procedurally appropriate for the County Board to seek
dismissal of the fundamental unfairness
allegations in Petitioners' Amended Petition
because those allegations
are, in reality. claims that are dismissible under §2-619 for the
reasons set forth
in the County Board's Motion to Dismiss.
II.
Respondent Presents Affirmative Matters That Negate Petitioners'
Allegations
And Claims of Fundamental Unfairness.
In arguing that the County Board does not present an affirmative matter that
negates Petitioners' claims, Petitioners cite Waterford Executive Group,
Ltd. v.
ClarklBardes, Inc., 261 III.App.3d 338, 343 (2
nd
Dist. 1994) for the proposition that a
Motion to Dismiss brought under §2-619
is proper only when an affirmative matter is
raised that completely negates the plaintiff's cause of action or
refutes critical
conclusions
of
law
or unsupported conclusions of material fact. The County Board
agrees with this interpretation of §2-619
and reiterates that the fundamental fairness
claims at issue present a question of law that should
be determined solely from the
record of the underlying proceedings.
No set of facts can be proven to contradict the
record and, therefore, the County Board
is entitled to judgment as a matter of law
pursuant to §2-619.
In its Motion to Dismiss, the County Board presents the affirmative
4
Electronic Filing - Received, Clerk's Office, May 5, 2009
matter that Petitioners' allegations are legal conclusions affirmatively negated by the
record.
Further, Petitioners posit that
"the County Board has mistaken the application of
~,
Section 2-619(a) for Section 2-615 of the Code ... " (Petitioner's Response, p. 4). This is
undoubtedly not the case. The Motion to Dismiss does not seek dismissal based on the
defective portions of the Amended Petition
or for failure to provide sufficient factual
allegations,
as is essential to a §2-615 motion. Rather, the Motion to Dismiss seeks
summary
dismissal of the fundamental unfairness allegations in the Amended Petition
on the basis that those allegations are completely negated and disposed of, as a matter
of
law, by the underlying record.
III.
The Hearing Officer Had Authority To Strike Waste Management's Late-
Filed Evidence And Portions Of The County Board's Counsel's Written
Findings.
Petitioners claim that "nothing in the plain language of the Act or the Ordinance
grants the hearing officer the authority
to strike the WMII Public Comment or portions of
the
County Counsel's written findings." (Petitioners' Response, p. 5). This statement is
directly controverted by Section 7.1 (2)(a) of the Ordinance, which empowers the hearing
officer to
rule on all evidentiary issues. Simply because the Petitioners take the position
that the
"public comment" and "written findings" at issue contained no evidence does not
mean that it is so.
In reality, the record demonstrates that these filings were indeed
inadmissible late-filed evidence.
Moreover, the Petitioners note that Sections
8.4, 9.2 and 10.1 of the Ordinance
specifically mandate that the County Board's counsel's written findings be made part of
the record. The
County Board does not disagree. However, it is imperative to note the
difference between the words
"findings" and "evidence." Nowhere in the Act or
Ordinance does it state that the
County Board or its counsel is granted leave to file
evidence whenever it pleases. Certainly, such a rule would circumvent the Illinois
5
Electronic Filing - Received, Clerk's Office, May 5, 2009
Pollution Control Board's rules regarding due process, notice and disclosure.
Additionally, although not defined in the Ordinance, the word "findings" implies that the
County Board's counsel is to provide his opinion, not scientific evidence, to the County
Board and then his opinions, not scientific evidence,
will then be made part of the record.
Tellingly, Petitioners' response does not address Waste Management's attempt
to file late evidence nor does it provide legal support for their position that the hearing
officer lacked authority to strike that evidence. Rather,
Petitioners' response only
attempts to show that the hearing officer lacked authority to strike portions of the County
Board's counsel's written findings.
This determination is a legal one and is
demonstrated by the record ot negate
Petitioners' claims in this regard in their entirety.
WHEREFORE, for the above stated reasons, Respondent,
COUNTY BOARD OF
KENDALL COUNTY, ILLINOIS, respectfully requests that the Illinois Pollution Control
Board dismiss the
Petitioners' allegations set forth in paragraphs 10 and 11 of their
Amended
Petition for Hearing to Contest Site Location Denial, with prejudice, and for
any other or further relief the
Illinois Pollution Control Board deems just and proper.
James
F. McCluskey
James
S. Harkness
Jennifer
L. Friedland
MOMKUS McCLUSKEY, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
(630) 434-0400
(630) 434-0444
FAX
Attorneys for Respondent
Respectfully submitted,
COUNTY BOARD OF KENDALL COUNTY,
ILLINOIS
By:
lsI
James S. Harkness
James
S. Harkness
W:\26 _ 59\4587 .080523\Pleadings\I PCB\ReplyMotDismiss.doc
6
Electronic Filing - Received, Clerk's Office, May 5, 2009
Electronic Filing - Received, Clerk's Office, March 24, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENf OF ILLINOIS, INC.,
)
and KENDALL LAND AND CATTLE, L.L.C.,
)
)
Petitioners,
)
)
vs.
)
)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
No. PCB 09-43
(pollution Control Facility
Siting Appeal)
AMENDED PETITION FOR HEARING
TO CONTEST SITE LOCATION DENIAL
Petitioners Waste Management of fllinois, Inc. ("WMII") and Kendall Land and Cattle,
L.L.C.
("KLC"), by Pedersen
&
Houpt, their attorneys, respectfully request a hearing to contest
the decision
of the County Board of Kendall County, fllinois ("County Board") denying site
location approval for the proposed Willow
Run Recycling and Disposal Facility. In support of
this Petition, WMII and KLC state as follows:
1.
This Petition is filed pursuant to Section 40.1 (a) of the D1inois Environmental
Protection Act (the
"Act") (415 !LCS
5140.1).
2.
On February 5,2007, WMII and KLC filed a Site Location Application for the
Willow Run Recycling
and Disposal
,\ I d
Facility
•
with the County Board ("2007 Application"). As
proposed in the 2007 Application, Willow Run was located on a 669-acre site with a 282-acre
waste footprint. Its waste disposal capacity
was 35 million tons, and it had a site life of 35 years.
Over one-third of the base double composite liner system was to be constructed within the
underlying bedrock aquifer. At its highest point, Willow
Run would be 235 feet above ground
surface.
497576.1
1
EXHIBIT
A
Electronic Filing - Received, Clerk's Office, May 5, 2009
Electronic Filing - Received, Clerk's Office, March 24, 2009
3.
Public hearings on the 2007 Application were held over a three-week period in
May,
2007. Having been made aware of the concerns that the County Board and the public had
regarding the proposal, WMII and KLC withdrew the
2007 Application in July, 2007.
4.
On June 3, 2008, WMII and KLC filed a revised Site Location Application for the
Willow Run Recycling and Disposal Facility with the County Board
("2008 Application")' As
proposed
in the 2008 Application, Willow Run was substantially reduced in size and scope from
the facility proposed in the 2007 Application. The site was reduced
from
669 to 368 acres, the
waste footprint from 282 to
134aci:es, the capacity from 35 to 14.5 years and the high point from
235 to
180 feet.
In
addition, no part of the double composite liner would be constructed in the
,
bedrock aquifer, but would be completely out of, and above, the bedrock aquifer. In fact, the
'v
bottom of the double composite liner and the top of the bedrock aquifer would be separated by a
low permeability soil layer ranging in thickness from 5.2 to 24 feet providing further
environmental protection.
5.
Public hearings on the
2008 Application were conducted by the County Board and
were held from September
11 to October 1 , 2008.
6.
On November 20, 2008, the County Board considered the 2008 Application, and
voted to approve each
of the statutory criteria except criteria (ii) and
(iii).
A true and correct
copy
of the Resolution Denying the Application, No. 08-34, is attached as Exhibit A.
7.
WMII
and KLC contest and object to this decision and its denial of criteria (ii)
and
(iii)
as fundamentally unfair.
8.
On information and belief, County Board members had improper
ex parte
communications with
third
persons both before and after the filing of the Application that
prejudiced or otherwise influenced their vote to deny.
497576.1
2
Electronic Filing - Received, Clerk's Office, May 5, 2009
Electronic Filing - Received, Clerk's Office, March 24, 2009
9.
County Board members considered and relied upon matters outside the record in
voting to deny.
10.
The hearing officer improperly struck the public comment filed October 28, 2008
by WMll, in violation of Section 39.2(c) of the Act and of Articles 6 and 7 of the Amended and
Restated Kendall County
Site Approval Ordinance for Pollution Control Facilities ("Ordinance
No. 08-15").
11.
The hearing officer improperly struck a portion of the written findings of the
County Board's legal counsel, in violation
of Sections 8.4 and 9.2 of Ordinance No. 08-1 S.
12.
The County Board's denial of criterion (ii) is unsupported by the record and
against the manifest weight
of the evidence.
13.
The County Board's denial
of criterion
(iii)
is unsupported by the record, against
the manifest weight
of the evidence and contmry to law.
WHEREFORE, WMII and KLC respectfully request that this Board enter an order (1)
setting for hearing this contest
of Resolution No 08-34, and (2) reversing the County Board siting
denial.
Donald
J. Moran
PEDERSEN & HOUPT
Attorney for Petitioners
161 N. Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
497576.1
Respectfully submitted,
WASTE MANAGEMENT OF ILLINOIS, INC. and
KENDALL LAND AND CATTLE, L.L.C.
By
slDonald J. Moran
One of Their Attorneys
3
Electronic Filing - Received, Clerk's Office, May 5, 2009
·.;~F
." . "
;.',
'.: '. <.;; :,"
Electronic Filing - RecEjiye<b Clerk's Ojffice, March 24, 2009
EX rrl I:) I T
JiA'
No.
Q8--JL{
A RESOLUTION DENYING THE APPLlCA"ON OF
KENDALL LAND & CATTLE, LLC AND WASTE MANAGEMENT OF ILLINOIS, INC.
FOR SITING APPROVAL OF A POLLUTION CONTROL FACILITY
LOCATED
IN
UNINCORPORATED KENDALL COUNTY, ILLINOIS
WHEReAS, pursuant to §39.2 of the Illinois Environmental Protection Act (the
"Act"),415 ILCS
5/39.2,
Kendall County, illinois {the I'Countyj has the authority
to
approve
or deny requests for local siting approval for new pollution control facilities, such as
landfills: and
WHEREAS. the General Assembly of the State of Illinois has provided in the
Illinois Environmental Protection Act,
415
ILCS
511,
et seq.
(the 1IAct"). that the IllinOis
Environmental Protection Agency may not grant a permit for the development or
construction of a new pollution control facility which is to be located in an unincorporated
area without proof that the location of said facility has been approved by the County Board
of the County in which said new pollution control facility Is proposed
to
be located; and
WHEREAS, Section 39.2
of
the Act provides that an applicant for local siting
approval shall submit sufficient details describing the proposed facility to demonstrate
compliance with. and the County Board approval shall be granted only if. the proposed
facility meets the following criteria (the "criteria"):
(i)
the facility is necessary
to
accommodate the waste needs of the area that it
is intended to serve;
{iQ
the facility is so designed. located and proposed to be operated that the
pubOc health, safetY and welfare will be protected;
{iiQ
the facility is located so as to minimize incompatibility with the character of
the surrounding area and to minimize the effect on the value of the
surrounding property;
Electronic Filing - Received, Clerk's Office, May 5, 2009
. .
Electronic Filing - Received, Clerk's Office, March 24, 2009
\IV)
the facility Is located outside the boundary of the 1 DO-year flood plain or the
site Is flood-proofed;
----
--. .. ,
(V)
the plan of operations for the facility is designed to minimize the danger to
the surrounding area from fire, spills or other operational accidents;
(vQ
the traffic pattems to and from the facility are so designed as to minimize the
Impact on existing traffic
flows;
(vIO
If the facility
WilltJe
treating, storing, or disposing of hazardous waste,
an emergency response plan exists for the facility which Includes
notification, containment and excavation procedures to be used
In
case of an
accidental release;
(vHO
if
the facility Is to be located in a county where the county board has adopted
a solid waste management plan consistent with the planning requirements of
the local Solid Waste Disposal Act or the Solid Waste Planning and
Recycling Act, the facility fs consistent
with
that plan; for purposes of this
criterion (viiO, the "solid waste management plan" means
the
plan that is in
effect as of the date the application for siting approval Is filed; and
(be)
if the facility will be located within a regulated recharge area, any
applicable requirements specified by the [Pollution Control] Board for such
areas have been met; and
WHEREAS, the County Board may also consider as evidence the previous
operating experience and past record of convictions or admissions of violations of the
applicant (and any subsidiary or parent corporation) in the field of solid waste management
when considering criteria
(10
and (v) under §39.2 of the Act; and
WHEREAS, in conjunction with the
Act,
the Kendall County Site Approval Ordinance
For Pollution Control Facilities, as amended (the "Siting Ordinance''), establishes certain
rules and regulations relating to the form
t
content, fees
t
and filing procedures for
iP.)
;l(,
Electronic Filing - Received, Clerk's Office, May 5, 2009
.... '
j\"::
Electronic Filing - Received, Clerk's Office, March 24, 2009
applications and other matters relating to the approval of sites for the location of New
Pollution Control Facilities in the unincorporated areas of the County; and
WHEREAS, on June 3,2008, Kendall Land & Cattle, LLC and Waste Management
of
Illinois, Inc. (collectively the "Applicanr) filed with the County Board an application for
site location approval for
the
Willow Run Recycling and Disposal Facility In unincorporated
Kendall County (the "Appllcation
h
), which Application consists of nine (9) volumes
of
reports and supporting data; and
WHEREAS, the County Board conducted public hearings on
the
Application on
September 11, 12,
13,
15, 16, 17,
18,22,23,24,25.29
and October 1,
2008.
and the
report of proceedings (transcripts) contains the testimony of each witness, the oral
arguments of and cross-examination by the attorneys and participants and oral comments
by citizens; and
WHEREAS, throughout the proceedings, comments and pleadings were filed
by citizens, participants and parties, ineluding but not limited to: (1) the Recommendation
dated November 5,
2008
submitted by Mr. Michael S. Blazer, counsel to the County {the
"Blazer Recommendationj, and (2) the proposed Findings dated November 11,
2008
submitted by Hearing Officer Patrick Kinnally (the "Kinnally Recommendation"); and
WHEREAS, the Siting Ordinance and Act require the County Board to detennine
compliance or non-compliance with the criteria and the County Board approves or denies a
requested site location, which determination by the County Board may include conditions
as permitted by the Act, and
WHEREAS, the Act requires that the County Board take final action on the
Application within
180
days from the date
of
its filing; and
WHEREAS, the. County Board undertook all the nece88ary and legal
steps
required
to review and consider the Application and to develop a written decision consistent with
Electronic Filing - Received, Clerk's Office, May 5, 2009
• I
Electronic Filing - Received, Clerk's Office, March 24, 2009
the requirements of
§39.2
of the Act; and
WHEREAS, the Counl¥ Board has accepted and considered all written
comments receiVed or postmarked within 30 days after the date of the last public hearing
held in this matter: and
WHEREAS, the Counl¥ Board has reviewed and considered the Blazer and Kinnally
Recommendations; and
WHEREAS, the County Board has reviewed the Application in light of the
criteria estabRshed for siting new pollution control facilities in
§39.2
of the Act and the Siting
Ordinance; and
WHEREAS. having reviewed. the hearing record in accordance with the rulings of
the
Hearing Officer, the County Board finds that the application process was fundamentally
fair and efficient and accessible to the County's citizens and the public generally; and
WHEREAS,
after
review of the Appftcation, all relevant testimony, all exhibits, all
public comments, the record made herein In Its entirety and, after further consideration of
all relevant and appncable factors and matters, the County Board finds that it has
jurisdiction to rule on the Application of the Applicant for the Willow Run Recycling
and Disposal Facility based upon the Appllcanfs proper notification as provided
by
the Act;
and
WHEREAS, for the reasons set forth in the Kinnally Recommendation, the County
Board finds that the Applicant has met
its
burden
with
respect to siting criteria 1, 4, 5, 6, 7,
8 and 9; and
WHEREAS, for the reasons set forth in the Kinnally Recommendation, the County
Board finds that the Applicant has failed to meet Its burden with respect
to
criteria 2 and 3;
and
Electronic Filing - Received, Clerk's Office, May 5, 2009
, ,
Electronic Filing -Received, Clerk's Office, March 24,2009
NOW, THEREFORE, BE IT RESOLVED by the Kendall County Board as follows:
SECTION
1.
Recitals.
The facts and statements contained in the preambles to
this Resolution are found to be true and correct and are hereby adopted as part of thfs
Resolution.
SECTION
2.
Decision.
The County Board denies the Application of Kendall
Land &
Cattle,
LLC and Waste Management of Illinois, Inc. for failure to meet criteria
2
and
3.
SECTION
3.
Findings of Fact.
The County Board adopts the findings offact and
recommendations set forth in the Klnnally RecommendatiOn.
SECTION 4. Severability. If any section, subsection, sentence, clause, phrase or
portion of this Resolution is for any reason held invalid or unconstitutional by any court of
competentjurisdiCiion, such portion shall be deemed a separate, distinct. and independent
provision, and such holding shall not affect the validity of the remaining portions of this
Resolution.
SECTION
5.
Prior Resolutions. All prior Ordinances and Resolutions in conflict or
inconsistent herewith are hereby expressly repealed only to the extent of such conflict
ADOPTED and APPROVED by.tha KENDALL COUNTY BOARD on this
20
th
day of November, 2008
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Electronic Filing - Received, Clerk's Office, May 5, 2009
. ,
Electronic Filing - Received, Clerk's Office, March 24,2009
County Clerk
Electronic Filing - Received, Clerk's Office, May 5, 2009
Electronic Filing - Received, Clerk's Office, March 24, 2009
CERTIFICATE OF SERVICE
I, Lauren Blair, an attorney, on oath certify that I caused to be served the foregoing,
PETITIONERS' AMENDED PETlTION FORHEARlNGTO CONTEST SITE LOCATION
DENIAL to be served upon the following parties listed below electronically on this 24th day of
March 2009.
James F. McCluskey
James
S. Harkness
Momkus McCluskey,
LLC
100 1 Warrenville Road, Suite 500
Lisle, IL 60532
E-mail: jfmccluskey@momlaw.com
jharkness@momlaw.com
Eric
C. Weis
Kendall County
State's Attorney
807 West John Street
Yorkville,
IL
60560
E-mail: eweiS@co.kendal1.i1.us
Charles Helsten
HInshaw
&
Culbertson
100 Park Ave.
P.O. Box 1389
Rockford, IL 61105-1389
chelsten@hinshawlaw
.com
497600.1
Bradley P. Halloran
lllinois
Pollution Control Board
James
R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago,
IL
60601
E-mail: hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson,
P .C.
609 E. Etna Rd.
Ottawa,
IL
61350
george@muelleranderson.com
Daniel
J. Kramer
Law Office of Daniel J. Kramer
1107 S. Bridge St.
Yorkville, IL 60560
dkramer@dankramerlaw.com
slDonald
J. Moran
Donald
J. Moran
Electronic Filing - Received, Clerk's Office, May 5, 2009