Chicago city officials have illegally ignored a legal order by continuing to withhold a permit sought by the company seeking to operate a new metal recycling facility on Chicago’s South Side, and should be held in contempt of court, that company has alleged in a new court filing.
On July 18, the company known as General III LLC filed a motion in Cook County Circuit Court, asking the court to enforce the order issued by a Chicago administrative law judge, who had ruled the city had violated its own ordinances and the law by improperly using “environmental justice” criteria at the behest of activists and the Biden administration to deny a crucial permit to the owners of the Southside Recycling facility.
The city “has repeatedly refused to follow the law and issue the Permit, and is now refusing to comply with an Order requiring it to do so,” the company wrote in a memorandum filed in support of its motion.
“To be sure, this is a case about whether the City of Chicago is above the law – whether the City and its departments can ignore the Municipal Code and duly enacted rules whenever it suits them or whether the City is bound by the rule of law – just like everyone else.”
The motion comes as part of the proceedings in Cook County court over City Hall’s appeal of the ruling from ALJ Mitchell C. Ex, and as yet another step in a years-long effort by the company to secure the permit and open the $80 million plant it has already constructed, allegedly at the urging of city officials.
In that decision, ALJ Ex concluded Chicago Public Health Commissioner Allison Arwady essentially engaged in illegal rulemaking by using an “environmental justice” review, known as a “health impact assessment," seemingly at the behest of the administration of President Joe Biden, to side with left-wing community activists, and abruptly reverse course to deny the permit request.
The company, which is legally known as General III LLC, but does business as Southside Recycling, has sought since 2018 to open the metal recycling center on 175 acres in Chicago’s South Deering neighborhood.
The company had operated a recycling plant for decades on the city’s North Side, until the city under former Mayor Lori Lightfoot pressed the company to close that plant over pollution concerns.
The company said the city then supported its alternative plan to build a new “state-of-the-art” facility on the South Deering site.
However, even though the company allegedly acted at the direction of the city, the administration of former Mayor Lori Lightfoot rejected the company’s request for a so-called Large Recycling Facility permit in early 2022.
At the time, Chicago Public Health Commissioner Allison Arwady said the decision was based on the results of the HIA, which allegedly showed “potential adverse changes in air quality and quality of life that would be caused by operations, and health vulnerabilities in the surrounding communities.”
The company, however, appealed that decision to the city’s Department of Administrative Hearings, where it landed before ALJ Ex.
In that appeal, Southside Recycling argued the permit denial was illegal because city ordinances don’t allow the Chicago Department of Public Health to use such HIAs when evaluating LRF permit requests.
Further, Southside Recycling said the years of delay in issuing a decision and the ultimate denial were based on political considerations, to appease local left-wing activists and their allies in the federal government opposed to the project.
The company said it had cleared every regulatory hurdle and satisfied every written rule, and was now owed its permit, by law.
Judge Ex agreed, and said the city had improperly relied upon the environmental analysis to deny the permit.
In that appeal, the city asserted Ex overstepped his authority, and city ordinances empower Arwady to use environmental standards to reject permits, if she wishes, even if the standards she uses are not spelled out in properly enacted ordinances and regulations.
Southside Recycling has yet to formally respond to the city’s appeal.
However, the company has accused the city of further lawless behavior.
In the July 18 filing, Southside Recycling said the city has refused multiple requests from the company for the city to issue the permit. In the filing, the company asserts Ex’s ruling should compel the city to issue the permit.
The city, however, has said it believes the ruling merely “vacated” Arwady’s denial of the permit, and did not order the city to do anything further.
“That is the only effect of the Decision,” wrote Chicago city attorney Bradley G. Wilson, in a July 10 letter, responding to the latest attempt by Southside Recycling to obtain the permit.
The letter was included with others as an exhibit attached to Southside Recyling’s July 18 motion.
“Because the Decision vacated the previous denial without ordering issuance of the permit, Southside Recycling has no grounds for ‘enforcing’ anything — in Circuit Court or anywhere else,” Wilson wrote.
In its motion, however, Southside Recycling called this position “adsurd,” saying it would render the decision “hollow” and the city’s “entire (administrative hearing) process meaningless.”
“CDPH’s position would render this entire administrative process as well as CDPH’s current complaint for review of that Order futile as the Court would simply be putting SSR back at the beginning of the years-long process, while its constructed $80+-million facility remains dormant and CDPH concocts yet another reason to deny the LRF Permit,” Southside Recycling wrote.
“… The ALJ’s Order both found that SSR met all permitting requirements and vacated CDPH’s permit denial. These two rulings together can only mean that CDPH now must issue SSR the LRF Permit.”
The company further noted that the city neglected to ask ALJ Ex to stay the order, pending review. According to Southside Recycling’s motion, the deadline to request such a stay was July 6, so Judge Ex’s order should now be in effect, they argued.
By refusing to issue the permit, the company said the city’s actions amount to refusal to abide by a legal order of the court, and so, they said, the city is acting in contempt of court.
Southside Recycling asked the court to order the city to issue its LRF permit, and to hold the city in contempt of court, ordering the city to reimburse their legal fees associated with filing the motion, as well as a “daily monetary penalty” until the permit is issued.
While the company is continuing its efforts to compel the city to issue the permit, it has placed a hold on a separate lawsuit against the city over its treatment of the company in the development of its metal recycling facility.
In that lawsuit, Southside Recycling says the city owes them $100 million if the company is ultimately blocked from opening and operating the recycling center.
The lawsuit would resume if the court overturns Ex's ruling and allows Arwady's actions to stand.
Southside Recycling is represented by attorneys Jeffrey A. Rossman, Terrence J. Sheahan and Gia F. Colunga, of the firm of Smith Gambrell & Russell, of Chicago.