CLERJc5
OFFICE
J/~1
0
2003
STATE
OF
ILLINOIS
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOARD
P0h1’UtIOfl
Control Board
LANDFILL 33,
LTD.,
)
Petitioner
)
PCB No. 03-43
vs.
EFFINGHAM COUNTY BOARD
)
& SUTTER SANITATION SERVICES
)
)
Respondents
)
)
AND
STOCK & CO.,
)
Petitioner
)
)
vs.
)
PCB No. 03-52
)
(Cases Consolidated)
EFFINGHAM COUNTY BOARD and
)
SUTTER
SANITATION SERVICES,
)
)
Respondents
)
EFFINGHAM COUNTY BOARD’S
INITIAL POST-HEARING BRIEF
Now comes
Respondent, Effingham County
Board, by and through
its
attorney,
Edward C.
Deters, State’s Attorney for Effingham County, and pursuant to
the December
19,
2002 Order of the Hearing Officer in this matter, hereby submits
its
Initial Post-Hearing Brief.
I.
INTRODUCTION AND PROCEDURAL HISTORY
On
December
19,
2002,
a
hearing was conducted on the above-referenced
appeals
in front of the
Pollution Control Board (PCB),
in
Effingham County.
This
brief is
in
response to the
Hearing Officer’s order for simultaneous briefs of all
parties, to be filed with the
PCB on January
10,
2003.
This matter was initiated
in
Effingham County by Sutter Sanitation,
Incorporated’s (Sutter) filing
an application with the
Effingham County Board for local
siting approval of a
proposed solid waste transfer station.
A public hearing was held
by the
Effingham County Board,
with
notices as required by statute, on August
14,
2002.
Sutter Sanitation presented witnesses, who were questioned by the Board, as
well as by Landfill 33,
Ltd.
(Landfill 33).
Landfill
33 also presented witnesses, who
were
questioned by the
Board and by Sutter.
After the hearing, the statutory period
was open for written public comment, and several written comments were
received,
including
by Petitioner Stock and Company, LLC (Stock).
On September
16, 2002, the
Effingham County
Board held its
regularly
scheduled meeting.
On the agenda that evening was the
Sutter application for
approval.
At the appropriate point in the meeting, Chairman Leon Gobczynski called
the Sutter matter for discussion.
Discussion was
held on each of the
nine statutory
criteria, and a vote was held on each
criteria before the discussion of the next
criteria began.
Vice Chairman
Bill Grunloh of the
Board voted “nay” on
two
of the
criteria and proposed
a
condition
to a third criteria,
a
bond requirement for Sutter
that was voted on
by the
Board.
After votes on each of the 9 criteria, the
County
Board voted to approve Sutter’s application.
On or about October 8, 2002, Landfill 33 filed an initial
Petition appealing the
County Board’s decision granting approval to Sutter’s application.
On October
17Th
Landfill 33 filed the Amended
Petition, now before the
PCB.
On or about October
16,
2002, Stock filed its
Petition
appealing the County
Board’s decision approving
the application.
2
The two petitions before the
PCB have been consolidated for appeal.
A
hearing date of December 19,
2002 was established by the PCB, and
a hearing was
held
in Effingham County on that date before Hearing Officer Brad Halloran.
II.
ARGUMENT
Petitioners Landfill
33,
Ltd. and Stock and Company, LLC have alleged in
their Petitions two
main
points.
First, that the
Effingham County
Board’s decisions
on certain
siting criteria were against the manifest weight of the evidence.
Second,
that the
Board’s proceedings were fundamentally unfair.
The Effingham County
Board will
address both issues
in the
petitions
in turn.
A.
THE
EFFINGHAM COUNTY BOARD’S DECISIONS
ON THE
STATUTORY CRITERIA FOR APPROVAL OF
SITING WAS NOT
AGAINST THE
MANIFEST WEIGHT OF
THE
EVIDENCE.
The Landfill 33 amended petition of October 18, 2002 cited four criteria that
the
Effingham County Board incorrectly found were
met by Sutter Sanitation:
1)
the
“necessity” of the
proposed facility; 2)
that the facility design, location, and operation
will
protect the public safety, health,
and welfare of our citizens; 3)
that the facility’s
operational plan will
minimize danger from fire, spill, and other operational accidents
to the area;
and 4)
that the
Board’s decision was consistent with
the solid waste
management plan of the county.
The Stock petition of October 16,
2002 cited five criteria that the
Effingham
County Board
incorrectly found were
met by Sutter Sanitation:
1)
the “necessity” of
the proposed facility;
2)
that the facility design, location, and operation will protect
the public safety,
health, and welfare of our citizens;
3)
that the facility’s location
minimizes incompatibility with
the character of the surrounding area and minimizes
3
the effect on the
value of surrounding property;
4)
that the facility’s operational plan
will
minimize danger from fire, spill,
and other operational accidents to the
area; and
5)
that the
Board’s decision was consistent with
the solid waste management plan
of the county.
The Illinois Environmental
Protection Act cites nine statutory criteria that must
be met for counties to approve a
siting
request for
a waste transfer station.
415 ILCS 5/39.2
(a).
When reviewing the
decision of the respective counties either
granting or denying approval of local siting, the
PCB must determine whether the
County’s decision is against the manifest weight of the evidence.
See, ~
American Bottom
Conservancy et al v.
Village of Fairmont City,
et al.,
PCB
No.
01-159, p.2, (October 18,
2001).
The burden of establishing that the county’s
decision was
in
error is squarely on the
Petitioners.
415 ILCS 5/40.1
(b).
County of
Kankakee et al. v. The City of Kankakee, PCB No. 03-31,
03-33, and 03-35
(consolidated cases), p.
3, (October 3, 2002).
The Effingham County
Board held its public hearing on local siting for the
proposed waste transfer station
on August
14,
2002.
The hearing lasted over three
hours (R.
C290).
Witnesses were presented by Sutter Sanitation, witnesses were
presented by Landfill
33, and questions were allowed by the
public.
Questions were
asked by County Board
members and attorneys for both sides were also given
the
opportunity to ask questions of the other witnesses.
Both sides presented credible
evidence on each of the above-mentioned criteria, which will
not
be rehashed
here
(R.
C125
—
C293).
4
At the
Effingham County Board
meeting on September
16, 2002, the County
Board discussed each of the
nine criteria established by statute for consideration of
siting approval (R.
C437
—
C438).
Substantial discussion was
had and consideration
given to
all of the evidence
put on by both Landfill
33 and Sutter Sanitation. Vice-
Chairman of the
Board,
Bill Grunloh, in particular, accepted certain
parts of the
Landfill
33 argument as noted
in the
minutes
(R. C437).
Grunloh voted “nay” to
criteria involving the “necessity” of the site, and “nay” that the site was consistent
with the County’s Solid Waste Management Plan
(R.
C437
—
C438).
Grunloh also
suggested a modification to the Sutter application requiring the
provision for a
$20,000 bond paid for by Sutter to help in clean-up if there were problems at the
site
(R.
C437).
This suggestion was adopted by the
County Board and
made part of the
County’s approval of the site (R.
C437
—
C438).
Finally, written comments were
received by the
Board,
and those received
in a timely manner were
considered
by
the
Board.
The Effingham County Board properly considered and weighed the evidence
offered
by all
parties before it in
reaching a decision on each criteria.
The Board
voted separately on each criteria, and time was allowed for discussion on each
criteria before a vote was taken on that criteria.
The Board’s careful consideration of
each criteria
is borne out particularly by Vice-Chairman Bill Grunloh’s “nay” votes on
two
criteria, and
his introduction of the
$20,000 bond condition
to a third criteria that
was adopted by the
County Board.
Having considered all
the evidence
before it, the
County Board simply voted that Sutter had
met its
burden
in establishing the nine
statutory criteria.
To
do so was not against the manifest weight of the
evidence
presented at the
public hearing.
5
Landfill
33’s Amended Petition to the Pollution Control
Board raises the notion
that approval of four criteria on local siting was against the manifest weight of the
evidence.
However, Landfill
33 offers no evidence or bases
in its
Petition to support
its
claim that the
County Board’s decision on any one criteria was against the
manifest weight of the evidence.
Landfill 33 has not met its
burden,
either in
its
Petition or at the
PCB hearing, of establishing error in the approval of local siting by
the Efftngham County
Board.
Therefore, the People urge the
Board to reject Landfill
33’s contentions that the Board’s decisions on these 4 criteria were against the
manifest weight of evidence.
The Stock Petition contains the additional argument that the
criteria regarding
the character of the surrounding area and the effect on the value of surrounding
property was not met by Sutter.
Stock presented no evidence at the Public Hearing
of its own on these issues.
Sutter presented James Bitzer, real estate appraiser on
this issue (R.
C178
—
C183).
Mr. Bitzer indicated there would be zero or minimal
impact to the surrounding properties by granting approval (R.
C183).
Sufficient
evidence was heard for the County Board to find that this criteria was met.
The other criteria cited by Stock in
its Petition as not having
been met were
also argued
by Landfill
33.
While Stock alleged these issues with
more particularity
than
Landfill
33,
Stock has not met its burden
in establishing
how the
Board’s
decision as to any of the criteria was against the manifest weight of the evidence.
Therefore, Stock’s Petition on the
issue of the statutory criteria also must fail.
6
B.
THE
EFFINGHAM COUNTY BOARD’S PROCEEDINGS
ON
SUTTER’S APPLICATION WERE “FUNDAMENTALLY FAIR” TO
PETITIONERS STOCK AND LANDFILL 33.
Both Landfill
33 and Stock also allege that the Effingham Co.
Board
proceedings on Sutter were “fundamentally unfair.”
The burden of proof on a
“fundamental fairness” argument is
on the
Petitioner.
415 ILCS 5/40.1
(b).
Stock
and Company’s
Petition specifically alleges that the
Effingham County
proceedings were “fundamentally unfair” in several
respects. Inference
is made by
Stock, though not established by their Petition or at the
PCB hearing, three factors
that effected the “fairness” of the Effingham County proceedings:
1)
the availability
of a transcript of the August
14th
public hearing; 2)
the existence of a family
relationship between
Duane Stock and County Board
member Carolyn Willenburg;
and
3)
the suggestion that a
recycling
issue was improperly considered by the
Board in granting approval.
Each
issue will
be discussed
in turn.
Finally, Effingham
County will
argue that by failing to specifically allege how the proceedings were
unfair,
Landfill
33 waived this argument.
1.
TRANSCRIPTAVAILABILITY
The first argument on the fundamental fairness issue by Stock is that a
hearing transcript from
the waste transfer site hearing was
not available until
October 24, 2002.
This date
was after the
Effingham County
Board held their vote
on the nine criteria at their September 16,
2002 meeting.
Duane Stock of Stock and
Company, LLC testified at the
Pollution Control
Board hearing in
Effingham on
December 19, 2002.
During that hearing, Mr.
Stock
admitted that he did
not request a transcript of the August
14th
hearing between that
hearing date and the September 16th County Board meeting
(PCB Tr. 50).
Stock
7
also admitted that he made no effort between October 2, 2002 and November 25,
2002 to contact anyone
in
Effingham County to see about getting
a copy of the
transcript (PCB Tr. 47-48).
Stock conceded
he never contacted any Effingham
County officials or public bodies to identify himself as a party or participant to the
proceedings prior to the Board’s vote on September
16,
2002 (PCB Tr. 50-51).
For all of these reasons, Stock can not claim that these proceedings were
fundamentally unfair to the company as it relates to the availability of a transcript.
Only on October 2, 2002 was
a request for a transcript even
made, weeks after the
decisive vote on approval of Sutter’s application was made on September
16,
2002.
No further request was made for
a transcript until November
25th
Stock was not
prejudiced in anyway by the transcript’s unavailability, and that unavailability
did
not
affect the
essential fairness of Effingham County’s proceedings herein.
2.
FAMILIAL RELATIONSHIOP
BETWEEN DUANE STOCK AND
CAROLYN WILLENBURG
Stock’s second suggestion of unfairness is made of the existence of some
bias to Stock and Company by Board Member Carolyn Willenburg’s first cousin
relationship to Duane Slock.
Nowhere
is it established by Stock that this familial
relationship adversely affected the
company, or that the company was prejudiced in
some way.
At the December 19, 2002 PCB hearing, on cross examination
Duane
Stock allowed that Carolyn Willenburg was
a “nice” person,
and
more importantly,
admitted that they got along very well (PCB Tr.
50).
Further,
he acknowledged that
he never asked her to step aside or recuse herself from the Sutter issue due to their
relationship, at any time prior to the filing of the Stock petition (PCB Tr. 51).
8
Surely Stock and
Company should
be required to prove or allege some
actual prejudice to them by the familial relationship between Willenburg and
Duane
Stock.
Instead, they apparently waited for one oftwo
reasons.
First, they perhaps
thought the relationship would be to the company’s benefit as to Willenburg’s vote
on approval ofthe site.
Second,
if things did not work out the way the Company
hoped, they would
have preserved an issue to argue on appeal.
In no way did the
relationship between
Duane Stock and Carolyn Willenburg create “fundamentally
unfair” proceedings on the waste transfer site for Sutter’s
benefit.
The mere
suggestion that the
relationship itself created unfairness, without establishing ways
in which
it was
unfair,
is insufficient to support the Petitioner’s claim of bias.
3.
RECYCLING ISSUE
The third
issue raised by Stock is that the
issue of a small consumer recycling
service offered by Sutter at the
proposed site improperly influenced the Board’s vote.
The only offer of proof on that issue seems to be a statement taken from the minutes
by Board member Charles Voelker at the September 16,
2002 Board meeting,
before the vote, that “recycling
is
a valuable asset and needed
in Effingham
County.”
(R.
C437).
However, Chairman
Leon Gobcyznski addressed the proper focus of the
Board as voting on the nine criteria.
At the August 14,
2002 public hearing he
stated:
I think maybe it’s appropriate that
I
make a comment
or two.
What we’re
trying to do here tonight, very
clearly and very narrowly,
is to judge this application
based on the criteria before
it.
I would have to
say that we have to be careful
in the comments in
—
and opinion as to whether this
is a good thing or a
bad thing.
Ourjob
here is to be very narrow and
9
focused, and we will
accept written comments as to
why these criteria are
—
are good or bad, but
I think
we have to be very focused on what we’re
doing here
tonight, or this would indeed
be
a very long night for
all of us because
we can’t just accept comments based
on
—
on business
practices or ethics or routes or even
recycling, as much as those are important issues to all
of us
in our daily life.
So
I would just ask that we
all try and focus on
—
on what’s at hand here and the
work that we have.
And address
the comments
—
or not comments.
Address questions to these criteria
because that’s truly what we’re
here for.
(R.
C225
—
C226)
The County
Board Chairman properly focused the issues to the
Board.
During the discussion on each of the nine criteria, at the September 1
6th
meeting, no
mention of the recycling issue was
again
raised by a
Board member.
Petitioner
Stock has failed to establish that any County Board member’s vote on any ofthe
nine criteria were
affected or changed based on the
recycling issue.
They attempt to
do so only by inference through one Board member’s comment as reflected in the
minutes.
Stock has failed
to meet its burden of establishing that any suggestion of
the
recycling issue made these proceedings “fundamentally unfair.”
4.
LANDFILL 33’S ALLEGATION
OF
FUNDMENTALLY UNFAIR
PROCEEDINGS
The burden of proof on issues of fundamental fairness is on the Petitioner.
Petitioner Landfill 33 has alleged
Effingham County’s proceedings in approving
Sutter’s application were “fundamentally unfair,” yet have not in their Petition or in an
obvious way at the
PCB hearing raised specific issues of fairness.
Failure to
specifically allege
in what ways the proceedings were “fundamentally unfair” should
result
in waiver of that issue before the
PCB.
If the
issue is not waived,
Effingham
County at any rate can not address the
issue further as Landfill
33 has not raised
a
fairness issue with
sufficient specificity to provide for comment by Effingham County.
10
Ill.
CONCLUSION
For the
reasons set forth above,
the Effingham County Board respectfully
moves that this Pollution Control Board affirm the September
16, 2002 decision of
the
Effingham County Board approving
local siting for Suffer Sanitation,
Inc., for
a
waste transfer station
in
Effingham County.
Edward C.
Deters
Effingham County State’s Attorney’s Office
101
North
Fourth Street, Suite 400
Effingham,
IL
62401
(217)347-7741
State’s Attorney
Effingham County
rs
11
PROOF OF
SERVICE
The undersigned certifies that an original
and nine copies of the foregoing
document were served by placing same in
a sealed envelope addressed to:
Dorothy Gunn, Clerk
Pollution
Control Board
100W. Randolph Street
Suite 11-500
Chicago,
IL
60601
And
one copy of the foregoing document was
served by placing same in
a sealed
envelope addressed to:
Stephen F. Hedinger
Hedinger Law Office
1225 S. Sixth
St.
Springfield,
IL
62703
Christine Zeman
Hodge
Dwyer Zeman
P.O.
Box 5776
Springfield,
IL
62705-5776
Charles J.
Northrup
Sorling, Northrup, Hanna, Cullen & Cochran,
Ltd.
P.O.
Box 5131
Springfield,
IL
62705
a~d
by depositin~amein the
United States mail in
Effingham, Illinois, on the
______
day of
..J
,
2003, with
postage fully
prepaid.
