BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE,
LLC
Petitioner,
v.
UNITED CITY OF YORKVILLE,
CITY COUNCIL
Respondent.
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PCB 07- 146
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE
NOTICE that on this 12th day of June, 2009, George Mueller,
one
of the attorneys for Petitioner, Fox Moraine, LLC, filed via electronic filing of the
attached
Motioll to File Supplemelltal Brief /Ilstalltor alld Supplemelltal Brief of Fox Moraille
with the Clerk of the Illinois Pollution Control Board, a copy of which is herewith served
upon you.
George Mueller
Mueller Anderson.
P. C.
609 East Etna Road
Ottawa, Illinois 61350
(815) 431-1500
-
Telephone
(815) 431-1501- Facsimile
george@mueJleranderson.com
Respectfully submitted,
FOX MORAINE, LLC
By: /s/ George Mueller
One of its Attorneys
Electronic Filing - Received, Clerk's Office, June 12, 2009
Fox Moraine, LLC v. United City a/Yorkville
PCB No. 07-146
Bradley Halloran
Hearing
Officer
liJinois Pollution Control Board
James R. Thompson Center
1000 West Randolph Street
Suite 1
1-500
Chicago, IL 60601
Charles Helsten
Hinshaw
&
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL
61 105-1389
Leo P. Dombrowski
Wildman, Harrold, Allen
&
Dixon
225 West Wacker Drive
Suite
3000
Chicago, IL 60606-1229
Thomas 1. Matyas
Wildman, Harrold, Allen
&
Dixon
225 West Wacker Drive
Suite
3000
Chicago, IL 60606-1229
James Knippen
Walsh Knippen Knight
&
Pollick
2150 Manchester Road
Suite
200
Wheaton, IL 60187-2476
Eric Weis
Kendall County State's Attorney
Kendall county Courthouse
807 Jolm Street
Yorkville, IL
60560
George Mueller
Mueller Anderson,
P.C.
609 East Etna Road
Oftawa, illinois 61350
(815) 431-1500
-
Te/ephone
(815) 431-1501- Facsimile
george@muelleranderson.com
SERVICE LIST
Derke
J. Price
Ancel, Glink, Diamond, Bush
&
Krafthefer
P.C.
140 South Dearborn Street
Sixth Floor
Chicago, IL
60603
Richard Porter
Hinshaw
&
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL
61 105-1389
Anthony Hopp
Wildman, Harrold, Allen
&
Dixon
225 West Wacker Drive
Suite
3000
Chicago, IL 60606-1229
James B. Harvey
Buck, Hutchison
&
Ruttle
2455 Glenwood Avenue
Joliet, IL
60435
Michael Roth, Interim City Attorney
City
of Yorkville
800 Game Farm Road
Yorkville, IL
60560
James Harkness
MOlnkus McKluskey, LLC
100lWarrenville Road
Suite
500
Lisle, IL 60532
Electronic Filing - Received, Clerk's Office, June 12, 2009
CERTIFICATE OF SERVICE
I, Sharon Twardowski, a non-attorney, certify that I served a copy of the
foregoing
Notice of Filillg, Motioll to File Supplemelltal Brief Illstalltor alld
Supplemelltal Brief of Fox Moraille
to the Hearing Officer and all Counsel of Record
listed on the attached Service list, by sending it via Electronic Mail on June
12, 2009
before 5:00 p.m.
/s/ Sharon Twardowski
[xl
Under penalties as provides by law pursuant to ILL. REV. STAT.
CHAP. llO-SEC 1-109, I certify that the statements set forth
Herein are true and correct
George Mueller
Mueller Anderson, P.
C.
609 East Etna Road
Ottawa, Illinois 61350
(815) 431-1500- Te/ephone
(815) 431-1501- Facsimile
george@muelleranderson.com
Electronic Filing - Received, Clerk's Office, June 12, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
PCB 07- 146
UNITED CITY
OF YORKVILLE,
CITY COUNCIL
Respondent.
MOTION TO FILE SUPPLEMENTAL BRIEF INSTANTOR
Now Comes Fox Moraine, LLC, ("Fox Moraine") by one of its attorneys,
George Mueller, and moves
to file the attached Supplemental Brief, Instantor, and
in support thereof states
as follows:
1.
The briefing schedule set by the hearing officer herein requires Fox
Moraine's brief
to be filed on or before June 12, 2009. Fox Moraine's brief has
been filed this date and this motion
is also being timely brought on June 12,2009.
2.
The record in this case is substantial and includes, but is not
limited to, the record filed by the City
of Yorkville, which is over 19,000 pages.
That includes approximately
5,000 pages of transcripts of the actual public
hearing conducted by the City
of Yorkville. The record developed before this
Board consisted
of three days of testimony with 12 witnesses being called, 39
exhibits being received
and over 1,000 pages of transcripts of City Council
meetings prior to the start
of the actual siting hearing.
Electronic Filing - Received, Clerk's Office, June 12, 2009
3.
Not only is the record in this case massive, but the issues are
complex and voluminous. The City purportedly found against Fox Moraine on
seven
of ten siting criteria, and the decision on all seven of those is challenged as
being against the manifest weight of the evidence. The proceedings before the
City Council are alleged
to be fundamentally unfair for multiple reasons, as
evidenced partly by multiple previous motions before this Board regarding
matters related
to fundamental fairness, said motions including, but not limited to,
the Wildman invoice, the Roth report, and claims of deliberative process
privilege.
4.
Based upon the foregoing, preparation and assembly of the brief
herein within the
35 days allowed has been an enormous task. Additionally, that
task has been complicated by the fact that three attorneys
at two different law
firms have been principally responsible for preparation
of this brief. Coordination
between those attorneys and law firms has been complex.
5.
In the rush to complete preparation and filing of Fox Moraine's
brief on time, a portion
of the argument relating to siting criterion viii was
inadvertently omitted from the brief that
was filed. The supplemental brief herein
represents that portion
of the argument which was inadvertently omitted and
which Fox Moraine seeks
to have this Board consider with all other arguments
previously made.
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500- Te/ephone
(815)
431-1501- Facsimile
george@muelleranderson.com
2
Electronic Filing - Received, Clerk's Office, June 12, 2009
WHEREFORE. Fox Moraine, prays for leave to file the attached
Supplemental Brief instantor, and
to have the Board consider the same as if it had
been filed
as part of the principal brief filed herein earlier this same date.
GEORGE MUELLER
609 Etna
Road
Ottawa, Illinois 61350
(815) 431.1500
-
Te/ephone
(815)
431.1501- Facsimile
george@muelleranderson.com
Respectfully submitted,
FOX MORAINE, LLC
By:
Is/George Mueller
One of its attorneys
3
Electronic Filing - Received, Clerk's Office, June 12, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
PCB 07- 146
UNITED CITY
OF YORKVILLE,
CITY COUNCIL
Respondent.
SUPPLEMENTAL BRIEF OF FOX MORAINE
Now Comes, Fox Moraine, LLC, by George Mueller, one of its attorneys, and submits
this supplemental brief.
The Environmental Protection Act is clear and unambiguons on the authority and
jurisdiction
of mnnicipalities to site pollution control facilities.
The County's misguided insistence that the May 2006 amendment to the Solid Waste
Management
Plan deprived all municipalities of the right to act as local siting authorities is
contrary to law and creates a more fundamental problem for the County. The evidence at the
hearing showed that
if construed to unilaterally and unconditionally deprive local municipalities
of siting jurisdiction, the County Plan is then inconsistent with the Local Solid Waste Disposal
Act and the Solid Waste
Planning and Recycling Act.
With respect
to the Amendatory Act of 1992 to the Solid Waste Planning and Recycling
Act, Mr. Willis explained that the Act states that solid waste planning should
be encouraged to
take place on a multi-county regional basis, and through intergovernmental cooperation
agreements, whereby all affected units
of local government determine the best method and
location for solid waste disposal within their regions. Notably, the Act provides that
"This
amendatory act of 1992
shall not be construed to impact the authority of units of local
Electronic Filing - Received, Clerk's Office, June 12, 2009
government in siting of solid waste disposal facilities."
(March 23rd, page 64-65) (emphasis
added).
Notwithstanding the Act's deference
to the right of local governments with respect to
siting, on May 4, 2006, the County Board passed Resolution No. 06-11, which purports to deny
municipalities the right to act
as local siting authorities, which Mr. Willis noted was in direct
conflict with the Act and with the planning principles that have guided the County since at least
1995. (March 23rd, page
67). The May 4th Resolution constituted a completely unilateral action
by the County which was undertaken without any input from any municipalities. (March 23rd,
page 67). Mr. Willis went on to note that the County interprets the May
4th Resolution as
effectively stripping municipalities
of their right to act as local siting authorities, notwithstanding
the fact that the legislature has clearly and expressly authorized both counties and municipalities
to act as local siting authorities for solid waste facilities.
(See
March 23rd, page 179; see also
415 ILCS 5/39.2(a)). As
Mr. Willis explained, the May 4, 2006 meeting at which the County
Board passed the Resolution was a hastily-called, ten minute special meeting held for solely that
purpose, and was expressly designed
to cut off any opportunity for the City (or indeed any
municipality) to obtain revenue from hosting a landfill and to instead seize and channel that
revenue stream, in perpetuity, into the County's coffers.
(See
March 23rd, page 180, 184, and
testimony
of Church below).
Section 39.2
of the Act reqUIres that an applicant for local siting approval must
demonstrate compliance with nine siting criteria. Criterion viii is,
"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
GEORGE MUELLER
609 Erna Road
Ottawa. Illinois 61350
(815) 431-1500
-
Telephone
(815) 431-1501-
Facsimile
george@muelleranderson.com
2
Electronic Filing - Received, Clerk's Office, June 12, 2009
Planning and Recycling Act, the facility is consistent with that plan." (415 ILCS 5/39.2(a)(viii)).
With respect to this criterion the City finding completely ignores the controlling fact that Kendall
County had not adopted a Solid Waste Management Plan which is consistent with the planning
requirements
of the Solid Waste Planning and Recycling Act, therefore making compliance with
this criterion inapplicable.
Counties do not have the primary overall responsibility for
management
of municipal solid waste, since the legislature has unambiguously decided that
question in the context
of pollution control facility siting by designating shared responsibility.
Kendall
County appeared at the siting hearing and essentially argued that the City of
Yorkville did not have the authority to site a landfill within its jurisdiction, when the County had
amended its
Solid Waste Management Plan for the express purpose of depriving all
municipalities within the county
of such authority. This argument seems to fly in the face of the
policy expressed by the
Supreme Court in
City of Elgin v. County of Cook,
169 1112d 53, 660
NE2d 875 (1995), condemning the attempts of municipalities to interfere with the siting
authority
of their neighbors, "Where the appropriate unit of local government approves the
siting of a pollution control facility pursuant to §39(c) and that facility is contained solely within
that unit's own geographic boundaries, we hold that extraterritorial third party challenges
to
these siting decisions to the Courts of this state are incompatible with the purposes of the Act"
(at 169 I112d 70)
415 ILCS
5/39(c)
vests jurisdiction to conduct a pollution control facility siting hearing
on either a county or a municipality based upon where the facility
"is to be located." Section
39.2 of the Act sets forth the procedures for local siting and again consistently makes clear that
these are available to both counties and municipalities.
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500
-
Telephone
(815)
431-1501. Facsimile
george@muelJeranderson.com
3
Electronic Filing - Received, Clerk's Office, June 12, 2009
The Solid Waste Planning and Recycling Act mandates the adoption by counties of solid
waste management plans and admittedly does give to counties
"The primary responsibility to
plan for the management of municipal waste within their boundaries." 415 ILCS 15/2(a)(2)
This primary responsibility is, however, to plan
and not necessarily to manage.
It
is also subject
to a critical and controlling caveat contained
in the same statute, "This Amendatory Act of 1992
shall not be construed
to impact the authority of units of local government in the siting of solid
waste disposal
facilities." (415 ILCS 15/2(a)(5), emphasis added) Therefore, the ability of
municipalities to site pollution control facilities within their boundaries is expressly
acknowledged and reserved by the legislature,
and the lead given to counties in planning only
cannot be the basis for a county infiinging on
or limiting that municipal jurisdiction. Kendall
County has made
no secret of arguing that it amended its Solid Waste Management Plan for the
sole purpose
of preventing the City of Yorkville from siting a landfill. Even though the
amendment was so inartful that it failed
to achieve its purpose, allowing Fox Moraine to
establish consistency anyway, the fact
of Fox Moraine's consistency with that Plan is purely
academic, because the County's Solid Waste Management
Plan is rightfully deemed as not being
consistent with the planning requirements
of the Solid Waste Planning and Recycling Act.
Similarly, the Local Solid Waste Disposal Act makes clear the legislative intent to
empower municipalities
as well as counties to site pollution control facilities free of interference
from their neighbors.
"It
is the purpose of this Act and the policy of this State to protect the
public health, safety and welfare and the quality
of the environment by providing local
governments with the ability to properly dispose
of solid waste within their jurisdictions by
preparing and implementing, either individually or jointly, solid waste management plans ...
"
GEORGE MUELLER
609
Etna
Road
Ottawa, Illinois 61350
(815) 431-1500
-
Telephone
(815) 431-1501
-
Facsimile
peorge@muelleranderson.com
4
Electronic Filing - Received, Clerk's Office, June 12, 2009
(4l5 ILCS 10/1.1). Section 2(2) of the Local Solid Waste Disposal Act defines a unit of local
government to specifically include a municipality and §2( 4) specifically defines jurisdiction in
the case
of a municipality to be "The territory within the corporate limits of the municipality."
To the extent that the County's Solid Waste Management Plan in this case attempts to
limit the City's exercise of siting jurisdiction the County's Solid Waste Management Plan is not
consistent with the planning requirements
of either the Local Solid Waste Disposal Act or the
Solid Waste
Planning and Recycling Act, and siting Criterion viii is therefore inapplicable to Fox
Moraine's application.
It
is somewhat ironic that the County bases its incorrect conclusions on a Plan
amendment centered around the word "located." While Mr. Willis offered a common dictionary
definition for the word which makes the application consistent, the word
"located" is used in the
Act is jurisdictional and would appear
to make criterion viii inapplicable to all siting cases within
municipal boundaries. This siting criterion
is best read as applying only to facilities proposed "to
be located" in a county rather than in a municipality. 415 ILCS 5/39(c), referenced in §39.2(a),
states in pertinent part
"No permit for the development or construction of a new pollution control
facility may be granted by the Agency unless the applicant submits proof
to the Agency that the
location
of the facility has been approved by the County Board of the county if in an
unincorporated area or the governing body of the municipality when in an incorporated area, in
which the facility is
to be located in accordance with §39.2 of this Act. " (emphasis added). 415
ILCS 39.2(a)(viii) requires
"If the facility is to be located in a county where the county has
adopted a Solid Waste
Plan consistent with the planning requirements of the Local Solid Waste
GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500
-
Te/ephone
(815)
431-1501- Facsimile
george@muelleranderson.com
5
Electronic Filing - Received, Clerk's Office, June 12, 2009
Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that
plan." (emphasis added).
The phrase
"is to be located" as used in the foregoing related statutory sections is clearly
jurisdictional, requiring that if a proposed facility is to be located in a county and subject to siting
jurisdiction
by that county, it must be consistent with that county's Solid Waste Management
Plan. Conversely, if a facility "is to be located" in a city, it need not be consistent with a
county's
Solid Waste Management Plan, because it is not to be located in an unincorporated area
ofa county.
This interpretation is harmonious with the quoted statutory language and also with other
provisions of the Solid Waste Planning and Recycling Act as well as the Local Solid Waste
Disposal Act as set forth hereinabove.
It
is also consistent with previous pronouncements by the
Supreme Court that all units of local government have concurrent jurisdiction with the Agency
(IEP A) in approving pollution control facility siting.
City of Elgin v. County of Cook,
169 I112d
53,660 NE2d 875 (1995);
Town
&
CountlY Utilities. Inc. v. Pollution Control Board,
225 I112d
103, 866 NE2d 227 (2007).
GEORGE MUELLER
609
Etna Road
Ottawa. Illinois 61350
(815) 431-1500
-
Telephone
(815) 431-1501- Facsimile
george@muelleranderson.com
By:
Respectfully submitted,
FOX MORAINE, LLC
Is/George Mueller
One of its attorneys
6
Electronic Filing - Received, Clerk's Office, June 12, 2009