BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX
MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on November 4,
2009, the undersigned filed with the Illinois Pollution
Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Petitioner Fox Moraine's
Motion for Reconsideration ..
Dated:
November
4, 2009
Charles
F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf of FOX MORAINE, LLC
/s/ Charles F. Helsten
One of Its Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, November 4, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
)
Petitioner,
)
)
~
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL,
)
)
Respondent.
)
PCB No. 07-146
PETITIONER FOX MORAINE'S MOTION FOR RECONSIDERATION
NOW COMES the Petitioner, Fox Moraine Landfill, LLC ("Petitioner" or "Fox
Moraine"),
by its attorneys, George Mueller and Charles Helsten, and for its Motion for
Reconsideration
of the Board's October 1, 2009 Final Order, pursuant to 35 Ill.Adm.Code
101.520, states as follows:
1.
The Petitioner, Fox Moraine, appealed in the aftermath of the Respondent City of
Yorkville's denial of Fox Moraine's application for siting approval. The appeal was based on the
lack
of fundamental fairness in the proceedings below, erroneous rulings by the Hearing Officer,
and because the City's denial
of siting approval was against the manifest weight of the evidence
and contrary
to law.
2.
The denial of fundamental fairness in the siting approval proceedings included the
bias
of Mayor Burd, and Aldermen Spears, Werderich, Plocher and Sutcliff, based on
overwhelming evidence that they prejudged the siting application against Fox Moraine.
3.
In its Final Order, the Board erred in holding that Fox Moraine waived its right to
challenge the bias of Aldermen Werderich and Plocher because it did not assert its objection to
their bias during the siting proceedings. (Final
Order at 60). In that regard, the Board erroneously
~pplied
the law on waiver, which requires a timely objection where there is knowledge of bias.
E&E Hauling, Inc.
v.
PCB,
107 Ill.2d 33, 481 N.E.2d 694 (1985). Here, prior to the discovery
conducted in this appeal, Fox Moraine merely suspected these two individuals were biased
against Fox Moraine. Suspicion is not the same
as knowledge. The holding that Fox Moraine
waived its right to object by, instead
of acting on mere suspicion, waiting until it had actual
"knowledge" to raise its objection, misconstrues the law.
Id.; see also ARF Landfill, Inc.,
v.
PCB,
174 Ill.App.3d 82, 528 N.E.2d 390 (1988), and
Waste Mgmt of Illinois, Inc.
v.
PCB, 175
IlLApp.3d 1023, 530 N.E.2d 682 (1988).
4.
Additionally, the Board's holding is squarely at odds with 415 ILCS
5/39.2(d)
(incorrectly cited as subsection(e)) (Final Order at 54), which states, in pertinent part, that "the
fact that a member of the county board or governing body of the municipality has publicly
expressed an opinion on an issue related
to a site review proceeding shall not preclude the
member from taking part in the proceeding and voting on the
issue." The record is undisputed
that
as of the time of the final decision, Fox Moraine's only evidence of bias relating to
Werderich and Plocher was their public statements. Only later, during discovery in this case, did
Fox Moraine become aware ofWerderich and
Plocher's close ties with each other, with Valerie
Burd, and with the objector group, FOGY.
5.
The Board's holding further overlooks the fact that Plocher and Werderich did not
participate in the proceedings until the Council began its deliberations. At that point, the City
Attorney announced that Fox Moraine was prohibited from providing any input, thereby
foreclosing any opportunity for Fox Moraine
to object to their participation. (C18537).
6.
The Board's opinion thus created a "Catch 22" situation for Fox Moraine.
It
holds
that the prior public statements
of Werderich and Plocher were sufficient to constitute actual
~owledge
of bias, giving rise to a duty to object, yet, at the same time, the Board holds that the
I
70619932v1 863858 62168
2
public statements made by Aldennen Spears and Sutcliff, and by Mayor Burd, were not evidence
of bias, despite the fact that those statements demonstrated far more bias than the statements of
Werderich and Plocher. In other words, if Wederich and Plocher's public statements were
sufficient to cause Fox Moraine to have actual, actionable knowledge
of their bias, then, as a
matter oflaw, the Board should have found that Spears, Sutcliff and Burd were biased.
7.
The Board further erred by affinning, without analysis or reasoning, the Hearing
Officer's ruling that "the Roth Report" (which apparently offered the author's portrait of what
the evidence at the siting hearing showed, and recommended denial
of siting approval), was
protected by the attorney client privilege. (Final
Order at 63). This holding overlooks the fact
that the City Council considered the Roth Report
as evidence when it deliberated and relied upon
it in reaching its decision, which clearly placed it within the realm
of material that needed to be
disclosed in order to comport with the requirements
of fundamental fairness.
(See e.g.
C18538,
18540, 18550;
see also
Fox Moraine's Post-Hearing Brief at 36-38, 41-47). Illinois law requires
that an administrative agency limit its decision to facts, data, and testimony which appear in the
record.
Seul's
Inc.
v.
Liquor Control Comm 'n,
240 Ill.App.3d 828, 831, 608 N.E.2d 530, 532
(1993). Although administrative decisions must be based on material in the record, the Roth
~eport,
upon which the City Council relied in reaching its decision, was never made a part of the
record.
8.
Although the Board has long held that local decision-makers may rely on reports
and proposed findings
of fact prepared by consultants, such reports are always made available to
the parties. This enables litigants a meaningful opportunity to comment upon or challenge such
reports and proposed findings. For example, in
Residents Against a Polluted Environment
v.
runty of LaSalle ond Landcomp Corp.,
PCB 96-243 (Sept. 19, 1996), the Board held that
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70619932vl 863858 62168
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Electronic Filing - Received, Clerk's Office, November 4, 2009
materials, and in particular a consultant's report which influenced the vote, not shared with all
parties could not be considered
by the local siting authority in reaching its decision.
9.
The Board further erred by declining to conduct a critical and technical review of
the record developed during the local siting hearing to determine whether the evidence in the
record supported the local authority's conclusion.
Town
&
Country Utilities, Inc.
v.
PCB, 225
Ill.2d 103, 123, 866 N.E.2d 227 (2007). Rather than conducting a technical review of the record,
the Board simply assumed the evidence presented by objectors to be competent, and therefore
failed to determine whether it supported the City Council's decision.
10.
This error is especially noticeable in the context of the testimony by the objectors'
"experts." Rather than considering the competence of the so-called "experts," the Board
repeatedly disclaimed its authority to
"weigh the evidence," explaining that it would merely
check to see whether
any
evidence was presented that might possibly support the City Council's
determination. For example, it held that the objectors' evidence on Criterion
(i) (''need''), which
consisted
of testimony by a retired industrial arts teacher about what he had read on the internet
and in newspapers, was sufficient to show there was a glut
of landfill space in Illinois, in contrast
to testimony by Fox Moraine's expert, who has nineteen years
of experience in the solid waste
field, and who presented evidence concerning IEPA's statistical analysis showing the need for
solid waste disposal sites.(Final
Order at 15-16, 70)
(See also
Fox Moraine's Post-Hearing Brief
at 51-55). In making its finding on criterion (i), the Board also disregarded the well-established
principle that a siting applicant has the right to designate a service area, and that the analysis
of
need must be with regard to that designated service area only.
File
v.
D&L Landfill, 219
Ill.App.3d 897, 597 N.E.2d 1228 (1991).
11.
The Board's repeated statement that it could not "reweigh the evidence" resulted
70619932v1 863858 62168
4
in an abdication of its statutory duty to apply its technical expertise in evaluating the evidence in
the record, and a failure to detennine whether the manifest weight
of the evidence supported the
City Council's finding that the §39.2 statutory siting criteria were not met.
In that regard, the
Board misconstrued the holding in
Peoria Disposal Co.
v.
PCB,
385 I11.App.3d 781, 896 N.E.2d
460 (2008), and disregarded the mandate of the Illinois Supreme Court in
Town
&
Country
Utilities
v.
PCB,
225 Ill.2d 103, 118-21 (2007). The Board's refusal to consider the competency
of the evidence ignored the Legislature'S clear directive in §40.1 of the Act that there be a careful
examination
of the evidence by a body with sufficient technical expertise to conduct a truly
meaningful review
of that evidence. 415 ILCS 5/40.1. Where, as here, the Board declines to
utilize its technical expertise, an appeal to the Board in advance
of judicial review is a waste of
resources and an exercise in futility by all concerned.
12.
The Board further erred in holding that the inclusion of recommended conditions
in the report prepared
by Attorney Derke Price constituted evidence of "deficiencies" in the
landfill design, thereby justifying a finding that criterion (ii) was not met. (Final
Order at 81).
However, the Environmental
Protection Act expressly authorizes the imposition of such
conditions
"as may be reasonable and necessary to accomplish the purposes of this section,"
clearly showing that, as a matter of law, a recommendation of conditions is not the equivalent of
evidence that the §39.2 siting criteria were not met.
See
415 ILCS 5/39.2(e).
13.
Moreover, although the conclusions of Mr. Price offered helpful guidance to the
decision-maker, the
Price Report was not, itself, "evidence" that could support a finding that the
Section 39.2 siting criteria were not met. The Board is urged to take judicial notice of the
Appellate Court's recent reversal
of the Board's decision in
City of Rochelle
v.
Rochelle Waste
Disposal and the Rochelle City Council,
PCB No. 07-113. In
City of Rochelle,
this Board held
70619932v1 863858 62168
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that a consultant's report submitted after the close of evidence, which first raised the idea of
requiring erection of a 14-foot berm (which was adopted as a condition, but challenged on appeal
as unsupported by the record), provided evidence to support the imposition of the challenged
condition.
(PCB Order, January 24, 2008, at 52). The Appellate Court reversed this holding,
finding there
was nothing in the record to support the challenged condition.
City of Rochelle
v.
PCB, et al.,
Cons. Nos. 2-02-0427 and 2-08-0433 (Ill.App.Ct. Sept. 4, 2009) (Rule 23
Order)( emphasis added). Although a Rule 23 Order has no precedential value, a tribunal may
nevertheless take judicial notice
of prior administrative decisions
(see Lynch
v.
City of
Waukegan,
363 Ill.App.3d 1078 (2006), citing
Colvett
v.
L. Karp
&
Sons, Inc.,
211 Ill. App. 3d
731, 734 (1991)),
as well as court proceedings
(Walsh
v.
Union Oil Co. of Calif.,
53 Il1.2d 295,
299-300 291 N.E.2d 644, 647 (1973)). This Board can and should take judicial notice of the
Appellate Court's reversal
of the Board's erroneous holding in
City of Rochelle
that an
ex parte
consultant's report was evidence that could support a local siting authority's decision. In this
case,
as in
City of Rochelle,
a consultant's report submitted after the close of evidence did not
constitute
"evidence" that can be used to support the City's decision.
14.
The Board also erred in holding that the City Council properly delegated to its
attorney the authority
to craft a denial-of-siting resolution making the findings needed to support
a denial that could withstand appeal.
(See
Final Order at 64; Fox Moraine Post Hearing Brief at
42-43, citing relevant pages
of the transcript of the deliberations). In so holding, the Board
disregarded the City Council's abrogation
of its legal duty to make its own findings.
(Compare
Fox Moraine's Post Hearing Brief at 36-38, 41-47
with
Final Order at 64). Notably, the City
Attorney who was charged with creating findings that would withstand an appeal was also the
juthor
of the above-referenced Roth Report, which had advocated for denial of siting approval
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70619932vl 863858 62168
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(in sharp contrast with the recommendations of the independent Hearing Officer and the City's
Special Environmental Council, both
of whom recommended that siting be approved).
15.
Moreover, the Board erred by affirming a siting decision that offers no
explanation or reasons for the deniaL The Act requires the
PCB to consider the "written decision
and reasons for the decision
of the county board or the governing municipality." 415 ILCS
5/40.1.
Here, the City Council's reasoning, such as it was, is contained solely in the transcript of
the deliberations. However, the transcript fails to provide any reasons for the Council's final
vote, thereby providing no reasons to review on appeal. The Act gives the parties the right to
appeal. 415 ILCS
5/42(a).
But review is only meaningful where the deciding tribunal's reasons
are expressed. In the present case, the report
of proceedings is devoid of any explanation for the
City Council's vote, and the Board therefore erred in upholding the City's decision to deny
siting.
16.
The Board erroneously construed Fox Moraine's argument concerning the lack of
reasoning in the City's decision, stating that "Fox Moraine does not challenge the sufficiency of
the written decision." (Final Board at 58). This misconstrues Fox Moraine's argument. In its Post
Hearing Brief, Fox Moraine explained that the problem with the City Council's decision was
that:
it does not comply with the bedrock requirement
of Section 39 .2( e)
of the Act that the written decision specify the reasons for the
decision.
Paragraph 2 of the resolution states, "The United City of
Yorkville finds, for the reasons set out in the record of these
proceedings, including but not limited to the reasons stated at the
special meetings
of the Yorkville City Council held on May 23 and
May
24,2007 that the following criteria, as set forth in Sec. 39.2 of
the Act, were not met ... " ... Certainly the record of the siting
proceedings provided no reasons for denial; instead, it provided
70619932vl 863858 62168
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compelling reasons for approval, as reflected in the comprehensive
review of the evidence contained in the Clark and Price Reports.
That leaves only the statements of the Aldermen during the public
deliberations. (Fox Moraine's Post Hearing Brief at 46).
Although the Board's decision states that Fox Moraine does not challenge the sufficiency
of the
City Council's written decision, citing to Fox Moraine's Reply brief, that Reply brief stated,
perhaps inartfully, that the
"reasons" offered in the Resolution did not reflect the City Council's
findings, but, instead, reflected those
of its attorneys, explaining that with respect to the
resolution drafted by the attorneys, the reasons stated therein might be:
arguably
otherwise sufficient
at least in form
to satisfy the
minimum requirement for a written decision specifying reasons.
Rather, Fox Moraine's
primary argument
is that the written
decision issued is not the decision of the City Council. Although
various Yorkville witnesses stated at various times that the final
resolution presented to Fox Moraine was, in fact, in front of the
council on the night of the vote, the record is clearly to the
contrary, and even Yorkville's responsive brief finally admits the
point. ...
Yorkville now cites
Peoria Disposal Company
for the proposition
that even a transcript can constitute the required written decision .
... Here, the final resolution clearly reflected the substantive work,
and, worse yet, the controlling hand of the city attorneys, and
contained a number of matters that were never voted on by the
council. Therefore, the resolution is not the written decision of the
council, it was the written decision of Attorney Michael Roth and
his colleagues. The council still has not produced its written
decision specifying its reasons for the claimed denial.
(Fox
Moraine Reply at 20-21)(emphasis added).
Contrary
to the Board's assertion, therefore, Fox Moraine has at all times objected to the City
~ouncil's
failure to articulate its reasons for its decision, which made meaningful review of its
70619932v1 863858 62168
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decision impossible.
See Coyne
v.
Milan Police Pension Bd.,
347 Ill.AppJd 713, 724, 807
N.E.2d 1276 (2004).
17.
The Board further erred by ignoring and/or failing to address the arguments and
offers
of proof presented by Fox Moraine on the subject of the deliberative process privilege.
Without analysis or reasoning, the Board declined to revisit its prior holdings on deliberative
process privilege.
(Compare
Fox Moraine's Post Hearing Brief at 7-9
with
Final Order at 59-60).
The Board also overlooked controlling Illinois Supreme Court precedent holding that there is no
deliberative process privilege in Illinois.
See People ex reI. Birkett
v.
City of Chicago,
184 Ill.2d
521,
530, 705 N.E.2d 48 (1998). Even assuming such a privilege may exist (and Fox Moraine
does not concede that it does), the privilege is clearly lost when,
as here, there is evidence of bad
faith by the decision-makers.
Id.;
Final Order at 60, citing
Rochelle Waste Disposal LLC
v.
City
Council of the City of Rochelle, Illinois,
PCB 03-218 (Apr. 15,2004). In this case, the evidence
of bad faith by decision-makers was overwhelming, but the Board disregarded such evidence,
finding, without explanation, no evidence
of bad faith.
18.
The Board further erred by ignoring compelling evidence that the decision-makers
prejudged the application and decided to vote to deny siting approval before the hearings had
even concluded. The Board's
Order effectively created an "election year" privilege to engage in
bias, finding that the candidates' promises to deny siting to Fox Moraine were simply
"the
activities [of] citizens exercising their various rights during the election process."
(Compare
Final Order at 62
with
Fox Moraine's Post Hearing Brief at 15-28).
19.
The Board also erroneously held that Alderman Spears was credible, disregarding
her undisputed impeachment by prior deposition testimony. The Board rationalized its decision
'0 ignore Alderman Spears' impeachment by noting that impeachment is to be expected in cases
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70619932vl 863858 62168
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that involve discovery, and that take some time to prepare. (Final Order at 34). The Board
appeared to forgive Burd's inconsistent statements because
of the time lag. However, prior
inconsistent statements
go to witness credibility. This Board's holding disregards the fact that
one
of the primary purposes of deposition testimony is to obtain information which may
potentially be used for subsequent impeachment,
as Illinois Supreme Court Rule 212(a)(1)
provides.
20.
The Board also erroneously discounted testimony of bias and improper activities
prior
to the filing of the application, essentially limiting its consideration of fundamental fairness
to what occurred in the siting hearing and the formal decision-making process thereafter. Yet,
pre-filing activities related
to annexation of the property were an essential preliminary part of,
and were inextricably tied to, the siting process. The Board's refusal
to consider statements
showing bias against Fox Moraine in the annexation process (which carried over
as continuing
bias in the siting process) is inexplicable, given the overwhelming evidence that all
of the
annexation proceedings centered squarely on the question
of whether a landfill should be sited in
Yorkville.
21.
Despite extensive arguments in Fox Moraine's brief, the Board summarily
dismissed argument concerning the content
of the Wildman invoice, and the fact that much of the
work described in the invoice (which was clearly focused on and directed toward crafting a case
for denial
of Fox Moraine's request for siting approval), occurred prior to the firm even being
retained by the City
of Yorkville. The Board erroneously concluded that all issues concerning the
illegal and improper retention
of the Wildman firm were cured by the City's payment of the
Wildman invoice, disregarding the fact that this evidence points directly to Mayor Burd's bias
and orchestration
of a plan to defeat the siting application, which included hiring the Wildman
70619932vI 863858 62168
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finn before she was even sworn in.
22.
The Board's decision disregarded evidence showing the Mayor's role in
orchestrating defeat
of the siting application on the basis that she did not cast a vote on the
application. This misapprehends Fox Moraine's central argument: that the Mayor herself
orchestrated the activities
of most of the decision-makers who voted to deny siting. In that
regard, the Board failed to make a finding
as to the "plausibility" of Mayor Burd's testimony,
even though the Hearing Officer invited the Board to make such a finding when he ruled on Fox
Moraine's motion for a finding that the Mayor was not credible. The Board failed to take into
account the Mayor's strong ties
to and connections with FOGY, the main objector group, and the
fact that one
of FOGY'S so-called "expert" opposition witnesses was a member of the Mayor's
campaign committee, a fact which the Mayor conveniently failed
to disclose.
23.
The Board erred by ignoring the opposition witnesses' unifonn misunderstanding
of the burden of proof and the standard required to prove the statutory siting criteria. A prime
example
of this phenomenon was Aldennan Spears' statement that any impact at all on traffic
was sufficient for her
to vote 'no' on the traffic criterion.
(See
Fox Moraine Post Hearing Brief at
39-40). The traffic criterion does not, however, require an absence
of any impact. Rather, it
provides that the traffic patterns are to be designed
so as to "minimize the impact on existing
traffic
flow." 415 ILCS 5/39.2(a)(vi) (emphasis added).
24.
The statutory criteria relating to property values, incompatibility with the
surrounding community, and traffic, which discuss minimizing the impact or effect
of a landfill,
demonstrate the Legislature's recognition
of the fact that, as is the case with most (if not all)
commercial development, some negative impact is inherent in the development
of a landfill.
See
415 ILCS 5/39.2(a)(iii), (v), (vi). As a result, it was improper for the Board to hold that evidence
70619932vl 863858 62168
11
of
any
negative impact justified a finding that these criteria were not met. The Act makes plain
that competent evidence against these criteria must address whether the inherent impact has been
minimized.
Id.; Fairview Area Citizens Taskforce
v.
PCB,
198 Ill.App.3d 541, 554, 555 N.E.2d
1178
(1990) (holding the "operative word in the statute [relating to traffic flow] is 'minimize.'
It
is impossible to eliminate all problems."), abrogated on other grounds,
Town
&
Country Utilities
v
PCB,
225 Il1.2d 103, 866 N.E.2d 227 (2007). Nevertheless, none of the opposition evidence in
this case looked to the degree
of minimization. This is particularly noticeable with respect to the
traffic criterion, where the opposition witnesses uniformly misunderstood the criterion, and felt
that a
"no" vote was justified if
any
impact was present.
(See e.g.
Fox Moraine Post Hearing
Brief at 39-40).
25.
The Board further erred
by failing to consider whether Kendall County's solid
waste plan was consistent with the planning requirements
of the Local Solid Waste Disposal Act
or the
Solid Waste Planning and Recycling Act, as required under Section 39.2(a)(viii) of the
Act. Criterion (viii) requires not only a consideration
of consistency between a county plan and
a siting application, but also a threshold consideration
of consistency between that county plan
and the Local
Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act. 415
ILCS 5/39.2(a)(viii).
26.
The Board also erred by treating criterion (v)
as a "tagalong" with criterion(ii).
These are separate and distinct criteria and should therefore have been addressed separately.
27.
Again, this Board has created a classic
"Catch 22" scenario with respect to
operator history.
It
held that because the proposed operating entity was legally a new entity, and
therefore had no official operating experience, the City could properly find this to be a negative
1actor in terms of the "operator history" criterion. (Final Order at 82). However, it then in tum
70619932vl 863858 62168
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Electronic Filing - Received, Clerk's Office, November 4, 2009
inconsistently held that to the extent the operating entity will be controlled by Peoria Disposal
Company
e'PDC"), which
does
have an operating history, the City could view PDC's history of
violations as a negative factor. (Final Order at 82). The Board accordingly erred by affirming the
City's consideration
ofPDC's history of violations as a negative, while simultaneously viewing
the newly-formed operating entity's lack
of an operating history as also constituting a negative
factor.
28.
Moreover, and more importantly, the Board's analysis in this case demonstrates
its failure to employ its technical expertise,
as mandated by
Town
&
Country.
The record is
undisputed that
Peoria Disposal operates multiple pollution control facilities and has a lengthy
operating history, and that its overall history
of compliance is outstanding, as evidenced by the
company's receipt
of numerous environmental compliance awards.
(See
Fox Moraine Post
Hearing Brief at 100-101). Like all companies with large and diverse pollution control
operations, some violations are inevitable.
Peoria Disposal Company therefore has some history
of minor violations. However, its violations are minimal, both in terms of the number and the
seriousness
of those violations, demonstrating that its overall compliance record is outstanding.
It
is perhaps plausible to believe that an inexperienced City Council might mistakenly conclude
that a few minor violations arising from multiple facilities over many years constitutes a negative
operating history. But this Board, which possesses technical expertise in this area and deals with
this subject on a day-to-day basis, erred in reaching the same conclusion.
WHEREFORE, for the reasons set forth above,
Petitioner Fox Moraine respectfully
requests that the Board reconsider and modify its Final
Order to hold that the local siting
application proceedings were not fundamentally fair, that the rulings by the Hearing Officer
yhallenged by Petitioner, Fox Moraine in its Post-Hearing briefs should be overruled, and that
70619932v1 863858 62168
13
the City Council's decision to deny siting was against the manifest weight of the evidence.
Dated:
November 4,
2009
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
George Mueller
MUELLER
ANDERSON, P.C.
609 East Etna Road
Ottawa,IL 61350
815-431-1500
Respectfully submitted,
On behalf of FOX MORAINE, LLC
/s/ Charles
F. Helsten
One
of Its Attorneys
70619932vl 863858 62168
14
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty
ofpeIjury under the laws of the United States of America,
certifies that on November
4, 2009, she served a copy ofthe foregoing upon:
Via
E-Mail- hallorab@ipcb.state.il.usl
Bradley
P. Halloran
Hearing
Officer
Illinois Pollution Control Board
James
R.
Thompson Center
1000 W. Randolph St., Ste. 11-500
Chicago,IL 60601
Via E-Mail- jharkness@momlaw.com
James
S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
Via E-mail.
HINSHAW
&
CULBERTSON LLP
100 Park
Avenue
P.O. Box 1389
Rockford,IL 61105-1389
(815)
490-4900
Via E-Mail- dombrowski@wildman.com
Leo
P. Dombrowski
Wildman, Harrold, Allen
&
Dixon
225 West Wacker Dr.
Suite
3000
Chicago,IL 60606-1229
Via
E-Mail- eweis@co.kendall.il.us
Eric
C. Weiss
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville,IL
60560
70535408v1 863858 62168
Electronic Filing - Received, Clerk's Office, November 4, 2009
