ILLINOIS

POLLUTION CONTROL BOARD

R~CEtVED

CLERKS

OFFiCE

JUN

2

2003

STATE OF

ILLINOIS

Pollution

Control Board

CITY OF KANKAKEE,

vs.

Petitioner,

PCB 03—125

(Third-Party Pollution Control

COUNTY OF KANKAKEE,

KANKAKEE,

and WASTE

ILLINOIS,

INC.

Facility Siting Appeal)

MICHAEL

WATSON,

vs.

Petitioner,

PCB 03—134

(Third—Party Pollution Control

COUNTY OF

KANKAKEE,

ILLINOIS,

KANKAKEE,

and WASTE

INC.

COUNTY BOARD OF

MANAGEMENT

OF

Respondents.

Facility Siting Appeal)

KEITH RUNYON,

vs.

COUNTY OF KANKAKEE,

Petitioner,

COUNTY BOARD OF

PCB

03—135

(Third-Party

Poi lutiori Coritiol

Facility Siting Appeal)

KANKAKEE,

and WASTE MANAGEMENT

OF

ILLINOIS,

INC.

COUNTY BOARD OF

MANAGEMENT OF

Respondents.

MERLIN

KARLOCK,

Petitioner,

vs.

COUNTY

OF KANKAKEE,

COUNTY BOARD OF

KANKAKEE,

and WASTE MANAGEMENT OF

ILLINOIS,

INC.

Respondents.

PCB 03—133

(Third-Party Pollution Control

Facility Siting Appeal)

Respondents

---

NOTICE OF FILING

TO:

Dorothy

N.

Gunn,

Clerk

Illinois

Pollution

Control

Board

James

R.

Thompson

Center

100

West

Randolph

Street,

Suite

11-500

Chicago,

IL

60601—3218

Bradley

Halloran

Hearing

Officer

Illinois

Pollution

Control

Board

100

West

Randolph,

~

Floor

Chicago,

IL

60601

FAX

312/814—3669

Donald

J.

Moran,

Esq.

Pederson

&

Houpt

161

North

Clark,

Suite

3100

Chicago,

IL

60601—3242

FAX

312/261—1149

Charles

F.

Helsten,

Esq.

Richard

S.

Porter,

Esq.

Hinshaw

& Culbertson

P.

0.

Box

1389

Rockford,

IL

61105—1389

FAX

815/963—9989

Jennifer

J.

Sackett

Pohlenz,

Esq.

175

W.

Jackson

Blvd.,

Ste.

1600

Chicago,

IL

60604

FAX

312/540—0578

Leland

Milk

6903

South

Route

45—52

Chebanse,

IL

60922

George

Mueller,

Esq.

501

State

Street

Ottawa,

IL

61350

FAX

815/433—4913

Keith

L.

Runyon

1165

Plum

Creek

Drive,

Unit

D

Bourbonnais,

IL

60914

FAX

815/937—9164

Elizabeth

Harvey,

Esq.

Swanson,

Martin

&

BeJI

One

IBM

Plaza,

Suite

2900

330 North Wabash

Chicago,

IL

6061

FAX

3)2/321—0990

---

PLEASE

TAKE

NOTICE

that

I

have

on

the

2j~d

day

of

June,

2003,

filed

the

original

and

nine

(9)

copies

of

the

following

document:

BRIEF IN SUPPORT

OF CITY OF KANKAKEE’S OPPOSITION

TO DECISION

OF KANKAKEE

COUNTY CONCERNING SITING OF A

SECTION

39.2 AND 40.1

OF THE ILLINOIS

ENVIRONMENTAL

PROTECTION ACT

with

Dorothy

N.

Gunn,

Clerk,

Illinois

Pollution

Control

Board,

James

R.

Thompson

Center,

100

West

Randolph

Street,

Suite

11-500,

Chicago,

IL

60601—3218,

and a true and correct copy thereof was served upon you on

June

2,

2003,

by

depositing

a

copy

thereof,

enclosed

in

an

envelope

in

the

U.

S.

Mail

at

Kankakee,

Illinois,

proper

postage

prepaid,

before

the

hour

of

5:00

p.m.,

addressed

as

above

(excluding

Donald

Moran

of

Pederson

and

Houpt),

and

by

facsimile

to

those

parties

with

facsimile

numbers

listed

above,

and

by

personal

service

to

the

law

m

of

Pederson

and

Houpt.

Kenneth

A.

Leshen

Assistant

City

Attorney

City

of

Kankakee

Kenneth

A.

Leshen

Assistant

City

Attorney

One

Dearborn

Square,

Suite

550

Kankakee,

IL

60901

815/933—3385

Req.

No.

03127454

---

RkLC

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

CLERK’S

OFFICE

THE CITY OF KANKAKEE,

an

Illinois

)

JUN

2

2003

Municipal Corporation

)

STATE OF ILLINOIS

Pollution

Control Board

Petitioner

v.

)

No.

PCB 03-125

COUNTY OF KANKAKEE,

a body politic

and

)

(Third-Party

Pollution Control Facility

Corporate;

MAN

KAKEE COUNTY BOARD;

)

Siting Appeal)

And WASTE

MANAGEMENT OF ILLINOIS,

)

INC.,

)

Respondent

)

MERLIN KARLOCK,

Petitioner

)

)

v.

)

No.

PCB 03-133

COUNTY OF KANKAKEE,

a body politic and

)

(Third-Party

Pollution Control Facility

Corporate;

KANKAKEE COUNTY BOARD;

)

Siting Appeal)

And WASTE MANAGEMENT OF

ILLINOIS,

)

INC.,

Respondent

)

MICHAEL WATSON,

)

Petitioner

)

)

v.

)

No.

PCB 03-134

COUNTY OF

KANKAKEE,

a body politic and

)

(Third-Party Pollution Control Facility

Corporate;

KANKAKEE

COUNTY BOARD;

)

Siting Appeal)

And WASTE MANAGEMENT

OF

ILLINOIS,

)

INC.,

)

Respondent

)

KEITH RUNYON,

Petitioner

)

)

v.

)

No.

PCB 03-135

COUNTY OF KANKAKEE,

a body politic

and

)

(Third-Party Pollution Control Facility

Corporate;

KANKAKEE COUNTY BOARD;

)

Siting Appeal)

And

WASTE

MANAGEMENT OF

ILLINOIS,

INC.,

)

(Consolidated)

Respondent

---

BRIEF

IN SUPPORT OF CITY OF

KANKAKEE’S

OPPOSITION TO DECISION OF

KANKAKEE

COUNTY CONCERNING SITING OF A NEW

LANDFILL

FACILITY, PURSUANT TO SECTION

39.2 AND 40.1

OF THE

ILLINOIS

ENVIRONMENTAL

PROTECTION ACT

Petitioner,

CITY

OF

KANKAKEE,

by

and through

its

attorneys,

Kenneth

A.

Leshen and

L.

Patrick

Power,

Assistant City

Attorneys for the City of Kankakee,

hereby present this Brief in

support of its request to overturn the decision of the County

Board of Kankakee County,

siting

a

new

Landfill

Facility,

under

Sections

39.2

and

40.!

of

the

Illinois

Environmental

Agency, and

argues as follows:

I.

THE

KANKAKEE

COUNTY

BOARD

LACKS

THE

JURISDICTION

TO

CONDUCT

HEARINGS

OR

MAKE THE

DECISIONS

WITH

REGARD TO

THE

SITING

APPLICATION

OF WASTE

MANAGEMENT

OF ILLINOIS,

INC. (WMII) BECAUSE OF

ITS

FAILURE TO

COMPLY

WITH SECTION

39.2(B) OF THE ILLINOIS

POLLUTION

CONTROL ACT.

Section 39.2(b)

requires that:

“No

later

than

14

days

prior

to

a

request

for

location

approval

the

Applicant

shall

cause written notice of such request be served

either

in

person or

by

registered

mail,

return

receipt requested, on

the owners of all

property within

the

subject

area

not

solely

owned

by

the

Applicant,

and

on

the

owners

of all

property within

250

feet

in

each direction of the

lot

line

of the subject property,

said

owners

being

such

persons

or entities

which

appear

from

the

authentic

tax

records

of

the

County

in

which

such

facility

is

relocated;

provided,

that

the

number

of all

feet

occupied

by

all

public

roads,

streets

alleys

and

other public

ways

shall be

excluded

in

computing the 250

feet requirement;

provided further,

that

in

no

event

shall

this

requirement exceed

400

feet, including public

streets,

alleys and public ways.”

Pre-filing notice

requirements of this

Section

are jurisdictional

and

have

been

held

to

be

so

by

the

State

Supreme

and

Appellate

Courts.

Ogle

County

Bd.

Ex

rd.

County

of Ogle

v.

Pollution

Control

Bd.,

272

III.

App.

3d

184,

208

III.

Dec.

489,

649

N.E.2d

545

(1995),

appeal

denied,

163

Ill.

2d

563,

212

Ill.

Dcc.

424,

657

N.E.2d 625

(1995);

Kane County Defenders,

Inc.

v..Pollution Control

Bd.,

139

III. App. 3d

588,93

Ill.

Dec. 918,

487

N.E.2d

743 (2~

Dist.

1985).

2

---

FACTS

A.

APPLICANT’S PETITION SHOWS

DEFECTIVE

NOTICE ON

ITS

FACE.

Pre-fihing notice of WMII’s

application

for siting approval was

sent

to

Objector,

Merlin

Karlock

by

regular mail

on

July

29,

2002.

The record

is bereft of any

evidence, other

than the

conclusory

and

unsworn

statements

by

Donald

Moran,

WMII’s

attorney,

that

any

efforts

were

made to

personally serve

Merlin

Karlock.

Donald

Moran’s sworn Affidavit

attached to

WMII’s

siting application

in

no

way indicates that

Merlin Karlock was

served

notice by

registered mail,

certified mail

or

personal

service or that

any

efforts were

made

to

effectuate

personal service.

Donald Moran’s

Affidavit on

page 4

indicates that

Merlin Karlock

was sent

regular mail

notice

on

July

29,

2002.

(Hearing

11/08/02

through

12/06/02,

Volume

I,

pgs.

45

-

61).

(The

transcripts from

the hearings commencing

in November,

2002

shall hereinafter be

referred to

as

“Hearing F’

and

the transcripts from the hearings held in May, 2003

shall hereinafter be referred

to as “Hearing II”).

The statute does not

allow proof of service by regular mail

under Section 39.2(b) of the

Environmental

Protection

Act.

Therefore,

proper

notice

pursuant

to

statute

was

not

given

to

Merlin Karlock.

B.

NOTICE TO

RICHARD J. MEHRER.

Pre-fihing notice to

Richard J.

Mehrer was posted on the door of a

residence in Chebanse,

Illinois both

for Mr. Mehrer and his

wife. (Hearing

I,

Volume

I, page 62).

Mr.

Mehrer was the

listed

owner of a

certain

parcel

of land

located

within

250

feet of the

lot

lines of the proposed

facility.

Mr. Mehrer is

deceased

and was

deceased

at the time

notice

was

posted.

Mrs.

Mehrer

was

living

at

the

time

of the

pre-fihing notice.

Again,

the

record

is

bereft

of any

evidence

showing that efforts

were made to

personally serve either,

Mr.

Mehrer or Mrs.

Mehrer.

(Hearing

I,

Volume I, pages

62 through 68).

The

only

notice

given

with

regard

to

that

property was

“posted

service”

(See

Motion

to

Dismis.s-Notice-Mehrer,

filed

by Objector,

Karloek).

No attempt was made

to

secure service on

3

---

the

heirs of Mr.

Mehrer,

although Mr. Mehrer’s wife resided

in

the area.

“Posted

service” is

not

authorized

by

Section

39.2

(b) of the

Environmental

Protection

Act.

Therefore

proper

notice

pursuant to statute was not given to

Richard J.

Mehrer.

C.

NOTICE TO

ROBERT KELLER and

BRENDA

KELLER.

Robert Keller and

Brenda Keller are shown

on

the Kankakee County

Assessor’s

records

as the owners ofthe premises commonly known as 755

East 6000

Road, Chebanse,

Illinois.

(See

Motion

to

Declare

WMII’s

Notice

Insufficient

to

Provide

the

Kankakee

County

Board

with

Jurisdiction

in

the Matter,

filed by

Objector,

Michael

Watson).

The record

is

clear

that

these

individuals

were

entitled to

service of process and

notice in

accordance with the Section 39.2(b)

of the Act.

It

is also

clear

from the record,

based

upon the testimony of both

Robert

and

Brenda

Keller that

they

were

neither

served by

registered

nor certified mail

nor personally

and

did

not

receive

pre-fihing notice from the Petitioner

in this cause.

D.

APPLICANT

FAILED

TO

COMPLY

WITH

THE

REQUIREMENTS

OF

THE

KANKAKEE

COUNTY HOST

AGREEMENT.

The

pending

application

includes

a

host

agreement

with

Kankakee

County.

Said

agreement states

in pertinent part as follows:

“Waste

Management

shall

file

a

siting

application

for

the

Exparided

Facility

on

or before June

1,

2002,

unless

the County

consents

in

writing to

an

extension

of

this

period

for

good

cause

shown.

In

the

event

that

Waste

Management

does

not

file

a

siting

application

for

the Expanded

Facility

on

or

before June

I, 2002, and absent the County’s consent

in writing to an

extension of

the filing deadline for good cause

shown, this Agreement

shall be null

and void.”

The

application

in

question

giving

rise

to

these

proceedings

was

filed

on

August

16,

2002.

This

is

clearly

after

the

June

I,

2002,

deadline

imposed

by

the

above

referred

to

agreement.

(See Motion in

Limine to

Dismiss Pan

B filed by Objector, Richard Murray, through

his attorney,

Kenneth A.

Bleyer).

Since

the

application

contained a

host

agreement which

is

expired

and

is

therefore void

and

further, since there is

no evidence that the agreement has been extended, the County

Board

is

without jurisdiction

to hear the Petition.

4

---

E.

ALL DOCUMENTS

REQUIRED

BY

SECTION

39.2(C) WERE

NOT

FILED

BY PETITIONER (SEE

PARAGRAPH H

A. BELOW)

F.

NEITHER

KANKAKEE

COUNTY

NOR

APPLICANT

FOLLOWED

THE

LOCAL

SITING

ORDINANCE

REQURESTS

(SEE

PARACARPH

II

BELOW)

Based upon

the foregoing, the County

Board

was

and

is

without jurisdiction

to

hear this

Petition.

II.

THE

FUNDAMENTALLY UNFAIR

LAW:

The proceedings

before

a

Municipal

Body

under

415

ILCS

5/39.2

must

comport

with

the

standard

of

fundamental

fairness.

Southwest

Energy

Corporation

vs.

The

Illinois

Pollution

Control

Board,

275

Ill. App.

3d

84;

Land

and

Lakes Co.

vs.

Illinois

Pollution Control

Board, 319

III. App.3d 41.

FACTS

AND ARGUMENT:

A.

NECESSARY

SUPPORTIVE

DOCUMENTS

WERE

NOT

MADE

AVAILABLE

TO

THE

CITY

OF

KANKAKEE

OR

THE

GENERAL

PUBLIC.

Motions

to

Dismiss

were filed

at the

initial petition

for hearing conducted

in

this

matter

on

November

8,

2002

based

on

the

unavailability

to

the public of certain

portions

of WMII’s

application.

At

that

time,

the

Objectors argued

that certain

portions of the

application

filed by

the

Petitioners

were

unavailable,

namely

all

documents

submitted

to

the

Environmental

Protection

Agency

pertaining

to

the

proposed

facility and

specifically

required

to

be

filed by

Section

39.2(c).

Objector

Karlock

tiled

a

Motion

to

Dismiss

alleging

that

these

documents

(including

previous

operating

records of Petitioner)

had

not been

filed

by

the

Applicant.

This

Motion

was supported by

an

Affidavit of Attorney George

Mueller who indicated that the Chief

Deputy

County Clerk was unable to

locate these documents for inspection

and

reviewing.

Only

the first

day

of

hearing, (11/8/02)

did

Elizabeth

Harvey,

Attorney

for the County

Board,

indicate

5

---

that the documents had been located

and were now available for inspection at the County Clerk’s

office.

In

addition,

neither

the

Kankakee

County

Clerk

nor

the

Kankakee

County

State’s

Attorney’s

office,

in

response

to

a

Freedom

of

Information

Act

Request

filed

by

Objector

Karlock’s

Attorney,

was

able

to

produce

any

letter

of transmittal

or other notice

of filing

by

WMII showing and specifically itemizing what in

fact was included with the Application re-filed

on

August

16,

2002.

(See

Assistant

State’s Attorney

Brenda

Gorski’s

Response to

Freedom of

Information Act Request attached to Objector Karlock’s

Motion to

Dismiss heard on

11/08/02 at

the Siting Hearing).

In his

deposition of April

29,

2003,

Jeffrey Bruce

Clark, the Clerk of Kankakee County,

testified

that

at the time of the

filing of WMII’s

siting application in

March of 2002

the County

Clerk’s office received three ring

binders and some maps.

(Hearing Officer’s

Exhibit No.

8,

pg.

22).

Mr. Clark further testified that at the

time of the

filing of WMII’s

August application,

the

County Clerk’s office received additional

cardboard boxes containing documents

and that

these

boxes bore no identifying marks or writing.

(Hearing Officer’s Exhibit No.

8,

pgs.

25-26).

Mr.

Clark designated

four deputy clerks,

including

his

chief deputy

clerk,

Esther

Fox,

as the sole

clerks

authorized

to

receive documents

from

WMII

relating

to

its

siting application.

(Hearing

Officer’s Exhibit No.

8

,

pgs. 28-29).

Ifsome of the documents received were on microfiche, the

County Clerk’s

office apparently did

not

have the ability

to

provide

to

the public

the ability

to

read the microfiche.

(Hearing Officer’s

Exhibit No.

8, pg..

30).

Robert Norris,

an

expert consultant retained

by

objector

Merlin Karlock,

confirmed

the

unavailability and disarray of the records and his inability to access a microfiche reader or printer

at the County Clerk’s

office,

(

Hearing

II, Volume 2,,

pgs.

21

through

27).

The testimonies of

Janet Andrzejewski

(

Hearing

11 Volume

2, pgs., 48-53

)

and Darrel Bruck,

(

Hearing

11, Volume

2,

pgs.

12

through

13) support the conclusion

to

be drawn from the testimony of Robert Morris

that

the

full

siting application was

unavailable to the public.

Assuming, arguendo,

that

the documents required

by

39.2(e)

were

in

fact filed

with

the

Application, the

issue remains that the documents were

not

available for inspection

or review by

the

public

prior

to

the

first

day

of the

hearing.

Therefore,

not

only

is

this

a

jurisdictional

argument

but

an

argument that goes to

the fundamental

fairness of the way the hearing has been

conducted

and

not

allowing

the

public

access

to

all

of the

records

necessary

to

prepare

its

objections.

(Rc~identsAg~ffistPolluted

Environment and

the Edmund

B.

Thornton

Foundation

6

---

vs.

County

of

LaSalle

and

Landcomp

Corporation,

PCB

96-243,

American

Bottoms

Conservancy

vs. Village of Fairmont City,

PCB 00-200.)

The unavailability of these documents

affected the ability of the Objectors

to

adequately

prepare

in

this

case.

Much of

the

substantive

testimony

at

the

siting

hearing

concerned

the

hydro-geologic

characterization

and

monitoring of the existing

facility as

well

as groundwater

contamination originating in the existing facility.

The record

is fairly summarized

by stating that

the

question of whether

or not

monitoring

well

exceedances

at

the existing

facility

constitute

groundwater

contamination

resulting

from

leachate

migration

has been

hotly debated

between

WMII

and

the

Environmental

Protection

Agency.

Having

the

entire

record

of that

debate

available would

therefore have been

completely

essential

for a

thu

and fair hearing on the issue.

Objector Karlock’s expert geologist,

Charles

Norris,

who

had

some of these documents

made available to

him by other sources, complained during his testimony that the possibility of a

complete

review on

his

part

was

impaired due

to

the

fact

that

the quarterly

monitoring

records

for the

existing

facility were

on

microfiche which

he

could

not

access. (Hearing

I,

Volume

23,

pg.

18).

Even after the siting hearings had begun

and the County had

announced that the Waste

Management

documents

previously

filed

with

the

Agency

were

now

finally

available

for

inspection in

the County Clerk’s

office,

the County

Clerk’s

office did

not

have available

to

the

public

a

microfiche

reader

so

that

the

public

could

access

the

entirety

of said

documents.

Although

some of these documents were

ultimately available

to

Objector Karlock’s

geologist,

this information was not

available to the City of Kankakee or other Objectors in this

matter.

B.

PETITIONER’S

APPLICATION

WAS

INCOMPLETE

AND

NEITHER

COUNTY

NOR

APPLICANT

FOLLOWED

TUE

LOCAL

ORDINANCE REQIJIRMENTS.

The

fact that

the siting Application was

not

complete or ever certified as such, and

that

the Application failed to contain

material information

required in the County’s regional

Pollution

Control

Facility Hearing Site Ordinance, also makes this

proceeding fundamentally unfair.

The

County

Siting

Ordinance

is

reproduced

at

the

beginning

of Volume

I

of

Waste

Management’s

Application,

but

Subsection

E

entitled,

“Date of Filing”

has been

omitted

from

the text

reproduced

in the Application.

Subsection F ofthe Ordinance states

in pertinent part,

“No

application

for

site

approval

shall

be

deemed

to

have been

filed or

accepted

for

filing

unless

all

of

the

requirements

of

this

Ordinance

7

---

applicable

thereto shall have been

given

and no receipt or other indication

of filing shall

be given, until

such time

as

it has been determined

that the

application

complies

with

the requirements

of this

Resolution.

Within

a

reasonable

period of time

after delivery of

an

application,

the applicant

shall

be

advised:

(a) either

that

it

is a complete application, and

that it has

been

accepted

for

filing,

designating

the

date

of

tiling;

or

(b)

that

the

application is not complete specifying wherein

it is deficient.”

Christopher

Rubak,

the Waste Management

representative responsible for

making

sure

that

WMII’s

application

fully complied

with

the County’s

filing

requirements, testified

that

he

never

received

any

certification of completeness

or notice of incompleteness

from

any

County

representative in connection with the Application.

(Hearing

I,

Volume

18,

pg.

110).

He further

testified

that

to

his

knowledge

the

Siting

Ordinance

had

not

been

waived

by

WMII

for any

reason

or

purpose.

(Hearing

1,

Volume

18,

pg.

lOS).

Furthermore,

Subsection

H

(2)(c)

and

Subsection

H(2)(d) of

the County

Siting

Ordinance

requires

substantial

detail

with

regard

to

closed facilities owned or operated by the applicant.

These details

were reviewed by Mr.

Rubak

during his testimony,

and

he acknowledged

that the information required was not included with

the Application

and

stated that

Waste Management simply chose not to include this information

because it would be

too voluminous. (Hearing

I, Volume

18, pgs.

100-

101).

WMII’s

knowing and

intentional deletion ofrequired materials from its

siting application

prejudices

the

City of

Kankakee

and

other

Objectors,

and

therefore

renders

the

proceedings

fundamentally

unfair.

Since the Applicant’s previous

operating record

was

a

filing requirement

pursuant to

Kankakee County’s

Siting Ordinance,

a complete record of the Applicant’s activities

at other closed facilities was required for a fundamentally fair hearing procedure and

also to

vest

the County

Board with jurisdiction

to hear this matter.

In ~p!4hwes~L~o

vs.

Illinois

Pollution

Control

Bd.,

supra, the

Court

stated:

“Although

the statutory

Criteria must

be

satisfied before

local

siting

approval can

be

granted,

Section

39.2

of the

Act

does not

state these are the

only

factors

which

may

be

considered”.

This

Court

further

stated

that

other

“legislative

type

considerations” may he

considered.

C.

APPLICANT’S

PRESENTED

PERJURED

TESTIMONY

(N

SUPPORT

OF

CRITERION

3.

(SEE

PARAGRAPH

III

B.

BELOW,

ARGUMENT

RE:

CRITERION

3)

8

---

9.

APPLICANT’S

EX PARTE

POST-FILING CONTACTS

WITH

THE

APPLICATION FUNDAMENTALLY

UNFAIR

The County of Kankakee determined

at the time of its

entry

into

a

host

agreement

with

WMII that

it

would

approve

WMII’s siting

application.

The

County’s

Solid

Waste

Management Plan

as well as the terms of its host agreement designates WMII as the sole

permitted operator of a

solid

waste disposal

facility

in

Kankakee County.

(See,

Watson’s

Group Exhibit 7).

In fact, according to Leonard “Shakey” Martin, a 30 year member and

a past

chairman of the

Board,

the approval by

the Kankakee County

Board of “WMII’s

application for siting approval was a “foregone conclusion”.

Mr.

Martin repeatedly

testified

in

his

deposition

taken on

April

29,

2003

that

the

County had

determined

in

the latter

part of 200!

that

WMII

was

to

be

its

sole

waste

provider and that it was a foregone conclusion that WMII’s landfill would be sited.

(See,

Hearing

Officer

Exhibit

No.

16,

pgs.

10-12,

15).

Mr.

Martin

ftirther

testified that

he

believed

that

Charles

Helston,

the

attorney

for

the

staff

of

Kankakee

County,

had

informed members of the County

Board

at

meetings

and

discussions that

he

had

contact

with

WMII during

the period subsequent

to

the filing of the application

for siting dated

August

16,

2002

and before the decision date of January 31,

2003.

(See,

Hearing Officer

Exhibit No.16,

pgs.

23-24).

The

testimony

of

Kankakee

County

Board

Vice-Chairman

Pamela

Lee

in

her

deposition

of April

30,

2003,

corroborates

the

stated belief of Leonard

Martin

that

the

siting

decision was

a

foregone conclusion.

Ms.

Lee testified

that County

Chairman

Karl

Kruse

designated

an

“informal

group”

early

in 2001

to

negotiate

a

host

agreement with

WMII.

This

group,

consisting

of

four

members of

the

County

Board

and

Planning

Department employees Efraim Gill

and

Mike Van Mill, met repeatedly in 2001

with Dale

9

---

Hoekstra,

a

WMII vice president

and

Lee Addleman,

a

WMII

employee at

a

series

of

secret meetings.

(See,

Hearing Officer

Exhibit

No.

7,

pgs.

11-13,

18-19 &23-24).

This

group

of

four

members

of

the

County

Board

was

fonnalized

into

a

committee

in

November, 2001.

(See,

Hearing Officer

Exhibit

No.

II, pg.

16).

At the same time as the

County

and

WMII

entered

into

a

host

agreement

with

WMII

for

the existing

and

new

landfill,

WMII paid

$500,000 to

the

County.

(See,

Hearing

Officer Exhibit

No.

II,

pg.

18).

At

the

same

time

as WMII

negotiated

the

host

agreement with

the County,

Dale

Hoekstra made

it

clear to

the County

that WMII’s

entry

into

a

host

agreement with

the

County and the resultant payment of $500,000 to the County was inextricably intertwined

with

the

County’s

continuing

designation of WMII as the sole

permitted provider in

the

County’s

Solid

Waste

Management

Plan.

(See,

Hearing

Officer

Exhibits

Nos.

17&l8

and

Watson

Group

Exhibit

7).

In

fact, WMII

found this

condition

to

be

so

significant

that

it

offered

to

provide

counsel

and

pay

legal

fees

to

defend

the

Solid

Waste

Management

Plan

in

the

event

the same

was

challenged

in

court.

(See

Hearing

Officer

Exhibits Nos.

I 7&18

and Hearing Officer

Exhibit 7, pg. 20).

Hearing

Officer Bradley Halloran sustained the objections of the County and

WMII

to

discovery or

proof relating

to

the

Solid

Waste

Management

Plan.

However,

it

is

respectfully

submitted

that

the

terms

of

the

host

agreement

and

the

Solid

Waste

management

Plan,

coupled with WMII’s

and the County’s

cooperative opposition

to

the

to

the

siting

of

a

Town

and

County

facility

in

the

City

of

Kankakee

establish

the

fundamental unfairness of the instant proceedings.

I

C)

---

III.

APPLICANT WMII

FAILED

TO

DEMONSTRATE

COMPLIANCE

WITh

ALL OF THE

CRITERIA REQUIRED

BY 415

ILCS 5/39.2

LAW:

Section

5/39.2

requires

that

any

Applicant

must

demonstrate compliance

with

the nine

listed

Criteria

before

a

County

Board

can grant siting approval.

If a

County Board

grants

siting

approval, an

Objector must

establish

that the Board’s decision

is

against the manifest weight of

the

evidence.

Wabash

&

Lawrence

Counties

Taxpayers

&

Water

Drinks

Association

vs.

Pollution Control

Bd.,

198

III. App. 3d

388.

The City of Kankakee contends

that the decision of Kankakee County

Board

is

against

the manifest weight of the evidence and the following Criteria under 39.2(a). to wit:

FACTS AND

ARGUMENT:

A.

The

Board

finding

of

compliance

with

Criterion

2

that

the

facility

is

so

designed,

located and proposed to

be operated

that

the public

health,

safety

and welfare will be protected is against the manifest weight

of the evidence.

A

fair

summary

of the

evidence

is

that

the

Applicant,

with

respect

to

the

horizontal

expansion, proposes a

conventional

Subtitle

D

municipal

waste

landfill

with

a

composite

liner

that meets but does not

exceed the minimum specifications of the

State of Illinois.

In support of

the

argument

that

this

minimal

conventional

design

is

sufficient

to

protect

the

public

health,

safety

and

welfare,

Applicant

offers

two

explanations.

Applicant

has

identified

certain

fine

gained

glacial till

materials which

according

to

the

Applicant

offer

an

effective natural

barrier

between the proposed facility and

the major regional

aquifer over

which

the facility

is proposed

to

be

built.

Secondly,

Applicant

relies

on

an

inward

hydraulic

gradient

to

conclude

that

no

contaminants

would

leave

the

facility

even if the

minimal

composite

liner system

is

breached.

Applicant’s engineer,

Andrew

Niekodem,

conceded

that

a

three foot

recompacted

clay and

60

ml. polyethylene liner represent the minimum specifications for a composite

liner in

a municipal

waste landfill

in Illinois.

(Hcaring I, Volume

22, pgs.

10-12).

II

---

I.

In

Situ

Materials

Do Not Provide

an

Effective

Barrier

Between

the

Waste

and

the Regional Aquifer.

The Applicant’s argument

is

flawed

in

a number of regards

and

has been, through

cross-

examination

and

the

testimony

of other

experts,

disproven

in

its

entirety.

First

of

all,

with

respect

to

the

fine grained glacial till

materials

which

are to

provide

an

effective natural

barrier

between

the

landfill

and

the

major

regional

aquifer,

the

Applicant

has

underestimated

the

permeability of these materials, based

upon

its

own data, by

a

factor of up

to

10,000.

The fine

grained materials relied upon by the Applicant are generally described as the Wedron Till.

First

of all, these materials are not

homogeneous, as the soil

borings

consistently demonstrate that

the

layers

or

deposits

of

these

materials

are

irregular,

the

same

being

interspersed

with

many

discontinuities and, most importantly, with

a substantial

amount of sand identified in the borings.

This sand can obviously act as a preferred pathway for contaminant migration, thereby rendering

the permeability ofthe till material, itself,

irrelevant.

Secondly, the Applicant’s own tests

show the Wedron Till to

be quite permeable.

The only

field

permeability

tests

conducted

on

the

Wedron

Till

were

slug

tests,

and

these

showed

permeabilities

generally

in

the

range

of

10

to

the

minus

4

and

10

to

the

minus

5,

figures

consistent with

what one would expect

from an

unconsolidated discontinuous and

heterogeneous

glacial till.

(Hearing

I,

Volume

20,

pg.

70).

In

characterizing the Wedron

Till

for

purpose of

assessing

its

ability to

act

as

a

barrier between the

waste and

the aquifer, Applicant disregarded

the

slug

tests

and

chose

to

use instead the

matrix

permeabilities taken from

laboratory

tests

of

very small

intact

samples of pure

Wedron Till.

This

approach, as described by

Karlock’s expert

geologist

Charles

Norris,

is

unsound because of scale of measurement problems.

When

one

is

attempting to measure real permeability in

the

field where secondary permeability pathways such

as

fractures and

sand

bodies

contribute

to

the

total

permeability

of a

particular zone,

it

is

not

appropriate

to

use

the

matrix

permeability

measurements

derived

in

the

laboratory

on

small

intact samples.

(Hearing

I, Volume 23,

pgs.

50-57).

In

response,

the

Applicant

has

argued

that

slug

tests

measure horizontal

permeability

while laboratory

tests

measure

vertical

permeability,

and

the

differences

in

the

results

can

be

explained on this

basis.

Geologist Norris, however,

pointed out that the Applicant’s own tests

in

the

laboratory

in

connection

with

permit

modification

applications

previously

filed

fbr

the

existing

facility

showed

that

the

appropriate

difference

bctwcen

vertical

and

horizontal

permeability

is a

factor somewhere between

10

and

thirty,

and

not

the factor of 3000

which

is

12

---

contained

in

the

siting

Application.

Accordingly,

if

we

use

the

Applicant’s

own

data,

the

permeability of the Wedron Till

has been underestimated by

a

factor of 100

to 300.

Thirdly,

the

Applicant

seriously

overstates

the

thickness

of

the

protective

till

barrier

between the

waste

and

the aquifer.

Joan

Underwood, the

Applicant’s

resident hydro-geologist,

testified that there was an average of 16 feet of fine grained impermeable material underneath

the

proposed excavation.

Addressing

this

issue

in

terms

of the average

thickness of the protective

till

barrier is dangerous

and misleading since the facility can only perform

as well as its

weakest

component. Therefore averages are completely irrelevant in terms of assessing safety.

Andrew

Niekodeni,

the designer ofthe proposed facility,

testified that

he

believed

there

was

a

minimum

of eight

feet

of “in

situ”

clay

underneath

the proposed

facility.

(Hearing

I,

Volume

12,

Page

54).

Geologist Joan Underwood acknowledged

that Nickodem’s assumption of

a minimum clay barrier ofeight feet was not true.

(Hearing

I ,Volume 20,

pg.

65).

In

fact, Joan

Underwood

on

cross-examination

conceded

that

in

a

number of locations

the bedrock aquifer

was only

two

to

three feet from the bottom ofthe proposed

excavation.

At

location

B

132,

the

bedrock

aquifer was

two

to three feet from

the excavation bottom,

at location

B

120 there was a

maximum of three and

one-half feet of clay beneath

the proposed liner, and

at location

B

141

there was a

maximum

of three feet of clay above the bedrock aquifer.

(Hearing

I, Volume

20,

pgs.

85,

95, 99).

The accuracy ofthe measurement ofeven

this

minimal amount of clay barrier

is called into question by virtue of the fact that sampling recoveries tended to

be very poor at the

bedrockltill

interface across the entire

site.

Ms.

Underwood

conceded

that

poor recoveries

can

happen due to

the materials being loose and

discontinuous (Volume 20,

Page 90).

Moreover,

at

a

number

of

soil

boring

locations,

WMII’s

geologic

interpretation

for

a

zone

of

material

immediately above the bedrock aquifer

is clay even though no

material

whatsoever was actually

recovered

from

that zone.

Boring

locations

B123

and B127

would

be just two

examples of this

dangerously non-conservative interpretation by

the Applicant’s geologic team.

(Volume 21, Page

60).

Fourth,

other

data

at

the

site

demonstrates

conclusively

the

excellent

hydraulic

communication

between

the

surticial

water

table

and

the

silurian

dolomite

aquifer.

At

the

southern

portion

of the

site,

the

vertical

gradients

between the

surficial

water

table

and

the

dolomite

aquifer

are

minimal,

and

such

minimal

vertical

gradients

were

conceded

by

Ms.

Underwood

as being

consistent

with

good

flow or good

hydraulic

connection between the

two

units,

(Hearing

I,

Volume

20,

pgs.

78-79).

In

addition,

Underwood

conceded

that

seasonally

13

---

changing

water

levels

in

the

deep

wells

would

be

consistent

with

those

wells

being recharged

from the ground surface.

(Hearing

1,

Volume

20,

pg.

44).

Charles

Norris

pointed

out

that

the

Application

lacked

time

series

water

level

data

in

the new

borings

and

wells,

and

this

would

easily have allowed

a

determination of whether or not deep

wells showed the seasonal variation

which

evidences

their

hydraulic

connection

to

surticial

units.

(Hearing

I,

Volume

23,

pg.

I 8).

Fortunately,

this

data was

available for the existing

facility as

it has been submitted

periodically

to

the

EPA

in

connection

with

permit

modifications.

Karlock’s

Exhibits

7.8,

7.9

and

7.10,

utilizing

data

from

the

existing

facility

deep

monitoring

wells

proved

that

not

only

is

there

seasonal

water

level

variation

in

these

wells,

but

the

variation

is

equal

in

amplitude

to

the

seasonal

variation

in

the corresponding shallow

wells,

thereby confirming

the

direct

hydraulic

communication between the shallow and deeper water

zones.

(Hearing

1, Volume 23, pg.

81).

Fifth,

the

fact

the

regional

bedrock

aquifer

underneath

the

existing

facility

has

been

contaminated and

impacted by the existing facility is conclusive proof that the glacial tills under

the site do not

act as an effective barrier to contaminant migration.

Charles

Norris’ review ofthe

monitoring

well

data from

the

existing

site demonstrated

that

groundwater

has

been

impacted

due

to

releases from

that site (Hearing

I,

Volume

23,

pg.

70).

While

the Applicant has denied

that these impacts are the

result of releases of leachate, they have acknowledged that fugitive gas

from

the existing site may

have caused the problem. (Hearing

1, Volume

23,

pg.

76).

As

Norris

pointed

out,

the existence of contaminated

fugitive

gas

in

the bedrock aquifer deep underneath

the existing

facility

is

bad

in

and

of itself in

that

proves

the gas

has been

driven downward

by

pressure through preferred migration pathways.

(Hearing I, Volume 23,

pg.

78).

The Applicant’s response

to

multiple contaminant

exceedances

in

monitoring

wells

at the

existing facility

is disturbingly non-conservative.

These responses

as detailed in the Application

and

as

repeated

by

the

Applicant’s

witnesses,

most

notably

in-house

hydro-geologist

Terry

Johnson,

include

everything

from

changing

testing

laboratories

to

decommissioning

wells.

Additionally, the Applicant

began

to

use a concept

known

as

“intrawell comparison”,

whereby

contaminant

levels

in

one

well

are

not

compared

to

another

but

rather

are

compared

to

the

previous

history

in

that

well.

Charles

Norris

demonstrated

graphically

in

Karlock

Exhibit

7-27

how the concept of intrawell comparison can

be used to

increase the AGQS (groundwater quality

standards)

in

a

given

well

over

a

period of time,

sometimes

by

as

much

as

a

factor

of’

100.

(Hearing

I, Volume 23,

pgs. 94-95).

14

---

Applicant’s

geologist

Joan

Underwood

admitted

that

she

did

not

do

a

water

balance,

which

would

have been

an

excellent quality

control

check

on

her

assumptions regarding travel

times

and

volumes through

the Wedron Till.

Charles

Norris did

perform a

mass water balance

using

the

data

derived

from

the

Applicant’s

own

testing

and

found

that

conservatively

the

Applicant’s estimate of water moving through

the groundwater flow system

at the proposed site

was off by

a

factor of

52.

This

means

that either

52

times

as much

water

was

moving

through

the system

as the Applicant indicated or that the

water

was

moving

52

times more rapidly than

the Applicant

indicated.

(Hearing

I, Volume

23,

pgs.

66-69).

Norris concluded

that

the totality

of’ the evidence was that

the Applicant had severely underestimated the volume

and

the speed of

groundwater movement at the proposed site. (Hearing I, Volume 23,

pg.

59).

2.

The

Groundwater Impact

Assessment is

Based

on Incorrect Input

Parameters

and is Thus

ofNo Value.

The

Applicant

relies

on

the

results

of a

groundwater

impact

assessment

to

support

its

conclusions

about

the

integrity

of the

Wedron

Till

and

the

ability of

that

Till

to

provide

meaningful

separation

between the

proposed

facility and

the aquifer.

A

groundwater impact

assessment

is

nothing

more

than

a

computer

model

calculating

the

speed

and

volume

of

groundwater

and

potential

contaminant

flow based

upon

various

input parameters provided

by

the

modeler.

Although

Ms.

Underwood

acknowledged

that

she

had

performed

a

worst

case

analysis

assessment,

the

assessment

reported

in

the

Application

was

the

“average”

case.

As

previously indicated,

the public

health, safety,

and

welfare will only

be

protected

to

the extent

that

the weakest

or worst

component of the

landfill

system

can

perform.

Therefore,

an

average

case assessment is essentially worthless.

That notwithstanding,

the parameters

used by

Ms.

Underwood

in

the groundwater impact

assessment

indicate

a

total

disregard for the

actual

site specific data available

to

the

Applicant.

Ms.

Underwood

acknowledged

that

the

assessment

modeled

the

thickness

of the

fine grained

glacial till

materials at

16

feet. (Hearing

1,

Volume 20,

pg.

63).

This

is more than five times

the

thickness

of

approximately

three

feet

encountered

at

least

three

different

locations.

For the

permeability of this

glacial

till

material,

Ms.

Underwood

used

laboratory

matrix

permeability

figures

which

are

about

3000

times

lower than

the

field scale observations

recorded

in

the slug

tests.

In some cases,

the slug

tests

show

permeahilities

10,000

times greater

than

the laboratory

matrix

permeability

tests.

(Hearing

I,

Volume

21,

pg.

30-3).

The

Applicant’s

assumptions

I5

---

regarding

the

Wedron

Till

actually

suggest

that

this

heterogeneous

discontinuous

frequently

sandy

glacial

material

would

be

many

times

less

permeable

than

the

carefully

constructed

recoinpacted

clay

liner

proposed

by

the

Applicant.

If one

believes

the

groundwater

impact

assessments

permeability

parameters

for the Wedron

Till,

construction of a

recompacted

clay

liner

is,

at

best,

superfluous

and,

at

worst,

a

dangerous

over

excavation

of tighter

and

less

permeable materials than any engineer could construct.

Although

the model,

itself, calls for separate parameters to

be input for the permeability of

the

recompacted

clay

and

the

60

ml.

polyethylene

in

the

Applicant’s

composite

liner,

Ms.

Underwood chose to

use

a

figure

averaging both

of these components together

with

the

result

that

the three feet of recompaeted clay

is modeled as being 4500 times less

permeable than

what

the

Applicant’s

engineer

indicated

could

be

achieved.

(Hearing

I,

Volume

21,

pg.

32).

Applicant’s engineer,

Andrew

Nickodem, acknowledged that

an engineered clay liner at the site

could

be

recompacted

to

achieve

one

times

ten

to

the

minus

seven

permeability,

but

not

permeability

in

the ten

to

the

minus

nine

range.

(Hearing

1,

Volume

22,

pg.

86).

However,

averaging

the very

low

permeability ofthe plastic

component of the composite

liner in

with

the

recompacted

clay portion

is extremely

misleading in

that

the permeability

figure for the

60

ml.

plastic

does not

even represent travel

time

through

the plastic,

but

rather

an

estimation of the

total

flux

based

upon

the

assumed

number

of

pinhole

defects

in

that

plastic.

The

true

permeability of the plastic portion of the liner is either zero or one

depending on

whether we are

at a point where

there is a defect or not.

At a point where there

is

a defect,

leachate would travel

through

the plastic liner more or less instantaneously and now

it becomes critical

at

that

point

to

know

the

true

permeability

of

the recompacted

clay.

Through

a

trick

of mathematics,

Ms.

Underwood

has therefore

underestimated

travel

times

through

the recompacted liner by

a

factor

of 4500.

3.

The

Inward

Hydraulic

Gradient

is

Not

Sufficiently

Established

Or

Understood.

Ms.

Underwood

modeled

only

for diffusion

as the mechanism

for

transport of leachate

and not

for advective flow (Hearing

I, Volume 21,

pg.

33).

Based

upon the inward

gradient,

the

Applicant therefhre assumes that

there is

no possibility of leachate

flow from

the facility.

This

is

based

on

the

dubious

assumption

that

the

inward

gradient

can

he

proven,

and

the

even

rnorc

dubious assumption that

the inward gradient can he

perpetually maintained.

16

---

The evidence suggests that the purported

inward

hydraulic gradient at this

site is not well

understood,

and

that

the

Applicant’s

various

experts

have

not

communicated

with

each

other

regarding the same.

Andrew

Nickodeni

was

the designer of the landfill.

He

acknowledges

that

the landfill

would

have an

inward

hydraulic gradient,

which

geologic

feature

he

believed

to

be

beneficial.

To

ascertain

the

inward

gradient,

Nickodem

used

the

water

levels

in

the

silurium

dolomite

aquifer as depicted

on

the potentiometric surface map of the dolomite well

heads

in Drawing

17

in

the Application.

Based

upon

this,

the

base

grades

for the

top of the liner were significantly

lowered

in

the two

southernmost cells (Hearing

I, Volume

12,

pg.

40).

Nickodem

further used

the dolomite water levels to compute the potential for hydrostatic uplift pressure during

and after

construction.

(Hearing

1, Volume

12, pgs. 4 1-43).

Since the proposed landfill

is to be built

in

the

till

rather

than

in

the

dolomite

aquifer,

Mr.

Nickodem’s

use

of

the

aquifer

water

levels

to

compute hydrostatic

uplift and other engineering requirements

is counter-intuitive.

In fact, Mr. Nickoderm’s

understanding of the inward

gradient

was contradicted

by Joan

Underwood who testified

that

the inward

gradient

is

based

upon

the water levels in

the water

table.

(Hearing

1,

Volume

20,

pg.

13).

Ms.

Underwood

never

did

prepare,

nor

does

the

Application

contain,

potentiometric surface

maps

for the water

table

or

the Wedron

Till,

even

though

comparing

and

contrasting those

potentiometric surfaces

to

that

in

the dolomite aquifer

would

enhance

understanding of the

hydraulic

inter-relationship between

the respective

units.

(Hearing

I,

Volume

l2,

pgs.

14-16).

Ms.

Underwood

actually

conceded

that

if one

used

the

water levels

in

the

dolomite

welts

to

establish

the inward

gradient,

there would

be

no

inward

gradient at

liner contours

above

the

626

elevation in

the northeast portion of the proposed site.

(Hearing I, Volume 20,

pg.

66).

The

fact

that

the

landfill

designer

does

not

understand

how

the

inward

gradient

is

achieved

is

especially troubling

because that

gradient,

once

achieved,

needs

to

be

maintained.

Mr.

Niekodeni’s

error

is

not

surprising

since presumably

he

relied

on

his

mistaken

belief that

there was

a

minimum of eight

feet of low

permeability clay underneath

the

entire

proposed site

in

determining not

to

design

a

composite liner that exceeded

State minimum

specifications.

Mr.

Nickodem also

did

not have a

clear understanding of the

Statc requirement that there be

no

more

than

one

foot of leachate

on

the

liner.

Etc

did

not

know

whether this

requirement applied

to

the

highest or lowest

portion

of the

liner,

and

this

is

significant in

light

of the

fact

that

the liner in

each

cell

typically

has

a

drop

in

elevation from

its

high

point

at

the

east

cnd of the

cell

to

the

17

---

sump

at the west end of the

cell of approximately

14 feet. (Hearing

I, Volume

12,

pg.~~8).

Ms.

Underwood,

at

least,

understood

that

the

State

requirement

prohibits

more

than

one

foot

of

leachate being maintained at any point on the liner. (Hearing

1,

Volume 21,

pg. 45).

This

point is

relevant

for more than

demonstrating the

lack

of communication between Applicant’s

engineer

and geologist because the Applicant’s geologist

acknowledged that as little as six

feet ofleachate

at

the

southeast

portion

of the

site would

reverse

the

inward

hydraulic

gradient

in

that

area.

(Hearing

1, Volume 21,

pg.

35).

Of course,

none of the witnesses for Waste Management

could

pinpoint the

time

when

the leachate

pumps

would

be

shut

off or the amount

of leachate

that

would

be

produced

after

closure, when

the engineered

portions of the

final

cover

would

begin

to

fail,

the rate

at

which

precipitation would

infiltrate and become

leachate after the onset of failure in the final cover, and

when the inward

gradient

would

inevitably and

irrevocably be

lost.

Mr.

Nickodem did

not

even

know whether the design of the final cover exceeded

State

minimum specifications.

(Hearing

1,

Volume

12,

pg.

55).

He did, however,

anticipate that settlement of the waste

would range

from

between

10

to

30

percent.

(Hearing

I,

Volume

13,

pgs.

16-17).

There

was

no

testimony

presented, nor

is there data

in the Application, that the final

engineered cover

can withstand the

flexion, stretching,

and

other deformation

which

must

accompany

significant

settlement

in

the

waste mass.

4.

The

Groundwater

Monitoring

Program

is

Based

Upon

an

Incomplete

and

Flawed Understanding of Groundwater flow at the Site.

The

only

groundwater

flow

map

presented

in

the

Application

is

Drawing

17

which

presents

the

potentiometric

surface

of

the

silurian

dolomite

aquifer.

This

map

depicts

a

groundwater high

in

the general

center of the site

at

Boring BuS

with

flow

from this point

to

the

north,

east

and

south.

This

map

also

incorporates

the

existing

facility

and

shows

the

groundwater

flow

thereunder.

Ms.

Underwood

in

developing

this

flow

map

failed

to

include

groundwater

data

from

pre-existing

dolomite

monitoring

wells

GIOD,

GI2D,

and

G26D.

(1-tearing

1,

Volumc

20,

pg.

19).

Her explanation for these

omissions

is

that

these

wells

were

deemed

by her

to

not

be

“representative.” (Hearing

1,

Volume 20,

pgs. 20-23).

However, these

wells

were

deemed

sufficiently

representative

to

be

part

of

the

monitoring

program

at

the

original site,

and

to be

included

in

all

groundwater

flow maps tendered to the

IEPA

in

the past

in

connection

with significant permit

modification applications. (Karlock Exhibit #3).

On the other

Is

---

hand,

because

it apparently suited

her,

Ms.

Underwood

included

water levels from

two

existing

facility monitoring

wells,

(28D

and

29D),

which

were

taken seven

years

prior

to

the

readings

from the newly

developed

wells.

(Hearing

I, Volume

20,

pg.

30).

This

is particularly

troubling

both

because there

is

no

scientific basis

for mixing

water

data from different

time

periods,

and

because

it

has

allowed

Ms.

Underwood

to

hypothesize

for

monitoring

purposes

a

grossly

oversimplified groundwater flow system.

In

connection

with

previous

permit

modifications,

Ms.

Underwood’s

peers

at

Rust

Engineering (now Earthtech) have argued to

the

IEPA that

the groundwater in

the aquifer under

the existing

site was subject to

strong

localized,

channelized

flow.

(Karlock Exhibit

#4).

Ms.

Underwood dismissed

and disagreed with this conclusion.

(Hearing I,

Volume

21,

pg.

39).

It

is

somewhat

ironic and

disingenuous

that

WMII’s

previous,

but

now discredited

and

repudiated,

description of the complexity

of the groundwater

flow

at

the existing

facility was

significantly

relied upon

as justification

for the use of intrawell analysis for the establishment ofgroundwater

quality standards.

Mr.

Norris demonstrated

that

using

all

of the available

monitoring

data from

the existing

facility

confirms

the

strongly

localized

groundwater

flow

at

the

existing

facility,

(Hearing

I,

Volume 23, pg. 45).

He also pointed out that the existence of such other channelized flow under

the much larger expansion is unknown, but

certainly should be suspected.

The evidence raises a

strong

possibility

of a

solution

channel

in

the dolomite at

elevation 575

(approximately

25

feet

below

the

top of bedrock).

Ms.

Underwood

acknowledged

that

residual

shale was present

at

elevation

576

in

Boring

B 103,

and

that

there was

spontaneous borehole widening at elevations

577

and

575

in

Borings

B ISO and

Bl52 respectively (Hearing

1,

Volume 20,

pgs. 49,

52-53).

Mr.

Norris also

reviewed this

data and explained

that

it

most

likely represented

a solution

channel

in

the dolomite

which

needed

to

be

confirmed

or

ruled

out

for

purposes

of establishing

correct

monitoring well

locations.

(Hearing I, Volume 23,

pgs.

37-41).

The

questions

raised

by

the

water

levels

in

Boring

B 115

were

never

satisfactorily

answered.

This piezometer is at the approximate middle of the new site and

with dolomite water

levels

of 632

feet,

represents the groundwater

high

in

the

silurium

dolomite.

Ms.

Underwood

was

questioned

about

this

at

length

and

acknowledged

that

B 115

was

in

fact

the

point of the

groundwater

high,

but

gave

no

adequate explanation as to

where

the

flow

came

from

to

create

this

high

(Hearing

I,

Volume

20,

pgs.

56-61).

Ms.

Underwood

acknowledged

that

there

was

some recharge

from

the

surface.

However, given

the amount

of low

permeability

till

above the

19

---

dolomite

in

the

area of

B 115

recharge

from

the

surface should

be

insignificant

and

certainly

should

not

be

sufficient

to

dominate

the

groundwater

flow

patterns

which

on

Applicant’s

Drawing

17 emanate in

three directions

from

the

B 115

location.

Ms.

Underwood speculated that

the hulk of the recharge had to

come from the west, but

she was unable to identi~’

any dolomite

heads

either on site or off site to the west with elevations above 632

feet.

Of

course,

if

one

accepts

the

Applicant’s

slug

test

data

as

being

representative

of

groundwater

flow

in

the Wedron

Till

in

conjunction

with

the

soil

borings,

the picture becomes

one

of

a

highly

irregular

discontinuous

and

permeable

till

where

surface

water

is

in

easy

hydraulic

communication

with

the

aquifer.

In

this

scenario, recharge

at

BI IS

from

surficial

water

is

entirely

plausible

and

consistent.

However, the question then becomes what the

effect

on

the

inward

gradient

will

be

from

building

a

landfill

directly

above

an

area

where

the

groundwater is apparently recharged.

The logical conclusion is that cutting offthe recharge will

reduce groundwater levels in

all flow directions thereby further imperiling the inward gradient.

The monitoring

plan proposed by the Applicant’s geologist

has

a

1500

foot gap

between

groundwater monitoring

wells

at

the northeastern

and

east central portion of the proposed site.

(Hearing I, Volume 21,

pg.

42).

Given the sudden and unexpected discontinuities in sand bodies

encountered

at

the

site

and

the possibility of solution

channels,

this

is

an

irresponsibly

large

interval,

particularly

since

general

flow from

the groundwater

high

in

the middle of the site

is

toward

this gap in

the monitoring wells.

Moreover, the monitoring program does not account

for

the downward

gradient

observed

in

all

four

locations

where

both

shallow

and

deep wells

were

installed

in

the aquifer.

This

can

only

give

rise

to

the

possibility

of

contaminants

traveling

downward in the aquifer below the monitoring horizon. (Hearing

I, Volume 23, pg. 97).

B.

The

Board

finding

of compliance

with

Criterion

3,

that

the

facility

is

so

located

so

as

to

minimize

its

incompatibility

with

the

character

of

the

surrounding area and

to

minimize

the effect on

the value of the surrounding

I.

Minimize incompatibility

with character of surrounding area.

At

the original

hearings

(11/05/02

through

12/06.02),

the

Petitioner

called

two

expert

witnesses

on

this

issue.

J.

Christopher

Lannert

testified as

a

land

usc

planner and

landscape

architect

employed

by the Lannert

Group

from

Geneva,

Illinois.

(Hearing

I, Volume

3,

pgs.

54-

55).

After

extensive

direct

examination

by

counsel

for

the

Petinoners,

Mr.

Lannert

was

asked

20

---

the following questions, “Mr. Lannert, based

upon

experience,

you

reviewed this

application, do

you have an opinion as to

whether the proposed expansion

is compatible with the character ofthe

surrounding area?”

(Hearing

I, Volume

3,

pgs.

7 1-72).

In

response,

Mr.

Lannert

stated,

“my

opinion

is that

it

is compatible with the character of the surrounding area.”

Mr.

Lannert

further

goes on

to

amplify the reasons why in

his

opinion

the facility

is

“compatible” with

the character

of the surrounding area.

On several occasions during the proceedings this opinion was

reiterated.

The opinion given by Mr.

Lannert

does not

address Criterion

3 at all.

Criterion

3

clearly

requires

an

opinion

as

to

whether

or

not

the

facility

is

located

so

as

to

“minimize”

the

incompatibility

with

the character of the

area.

This would call

for testimony

indicating that

the

proposed

facility has

so

reduced

the

incompatibility as to

be

at

a

minimum.

Mr.

Lannert’s

conclusion

that

the proposed expansion “is

compatible”

fails

to

indicate what

Criterion

3

calls

for,

therefore his opinion

is not relevant to Criterion

3.

2.

Minimize effect on

value ofsurrounding property.

Petitioner called Patricia

McGarr as an expert on that portion of Criterion 3 relating to the

minimization

of the

effect of the facility on

the values of surrounding property.

Her testimony

should

have been stricken and

totally discounted by the County

Board during the siting hearings

for two reasons:

(a)

Her opinions were not based upon

facts that would warrant her conclusions;

(b)

She perjured herself as to her

credentials as

an expert.

a.)

Ms.

McGarr’s analysis of the estimated effect of the proposed facility on

the

value of farmland

and

residential land does not

support

her conclusion.

Her analysis was

based

only

on

values

going

back

to

1998

and

through

2001.

She

stated,

“Sales

information

is

not

available for the

pubic

to review

prior to

1998

without giving a

specific

pin

number or specific

date of sale.”(Hearing

1,

Volume

6,

pgs.

12-13)

Her

analysis

of farmland

fails

to

take

into

account any farm sales

within the last three years.

(Hearing I, Volume 8,

pg.

Ill).

Her analysis

of

residential

values

is

unsupported

by

facts

because

of

the

arbitrary

way

in

which

she

determined

the control

area

and

the

target

area of her

study.

She

used

no

scientific basis

in

determining

those

two

areas

and

this

seriously

jeopardizes

the

accuracy

of

her

conclusion.

(Hearing

I, Volumes

6,

7

and 8).

Ms.

MeGarr and the

Petitioner whom

she represented

recognized the weakness of

this

analysis

and

tried

to

bolster this

by

referring

to

another study

to

a

completely different area

of the

State.

She

testified

about

her

study of the

Settlers

Hill

Landfill

located

in

Kane

County.

21

---

That site

is

separated

from

this

site

by many

miles

and

there is

nothing

in

the testimony of Ms.

McGarr, which would make it of any value

to the Kankakee County area.

When

quizzed

by

Attorney

Flynn

about the

availability of the

records,

Patricia

McGarr was asked,

“Q.

You indicated that the County Assessor’s Office

in

terms of residential

sales

in the County of Kankakee went back for two years?

A.

No.

It

went back

to

1998.

Q.

I’m sorry.

1998.

The

MLS, does it

go back

further than

1998?

A.

It

goes back

two

years,

and

then

you

can

go

into

archives, and

you

might

be

able to

find some information in their archives.

Q.

Did

you

attempt

to

go

into

the

archives

to

determine

what

information

concerning sales existed prior to

1998?

A.

No.

Since the

—

I principally relied

on

the County Records,

and

since

it

went

back four years,

I stayed within that four-year range.

Q.

With

regards

to

the records

you

got

from

the County

Assessor’s

Office,

did

you

actually get the transfer documents or did

you

get a

computer printout of the

sales?

A.

I got

a copy of the transfer document.

Q.

Is it your testimony here today that the transfer documents for residential sales

in the County ofKankakee prior to

1998 do not exist?

A.

No,

sir.

I’m

saying that they’re not available for the public to

review without

asking for a specific

pin number or date of sale.

Q.

Did

you

have maps

which

would

help

you

identify what pin

numbers

were

in

a particular location?

A.

Well,

I was looking at a

square mile, so

there was a

lot of pin

numbers.

And

to have to fill

out

a Freedom of Information Request for each pin

in

every block,

I

could

have

been

looking at

hundreds and

hundreds,

and

than

to

go

back

every

year,

principally,

I

like

to

go

back

ten

years,

the

people

that

worked

in

the

Assessment Office

when

I

was

talking

to

them

didn’t

think

that

was

a

realistic

thing for me to do.”

(Siting Hearings, Transcript Volume VI, pages

45

—47)

It

is clear from

the foregoing,

that Patricia

McGarr realized that more extensive work

was

necessary

and

more

resources

were

available.

However,

she

simply

chose

not

to

use

the

resources

or

do

the work.

22

23

---

b)

Ms.

McGarr’s

opinions are so lacking in

factual support

that

they are of

virtually no value.

An opinion of an expert which has not been adequately supported

does not go

to

the qualification ofthe expert who testified

but rather to the weight

and sufficiency to

be given

the evidence by trier of fact.

(National

Bank

of Monticello

vs.

Doss,

141

III.

App.

3d

1055,

1072).

Illinois Courts

have further held that,

“.

.

.

the weight to be assigned to

an

expert opinion

is

for the jury to

determine

in

light of the expert’s

credentials and

factual

basis of his

opinion.”

(Snelson

vs.

Kamm,

203

WL

1359496

(III.):

Wiegman,

308

Ill.

App.

3d

799;

Treadwell

vs.

Downey, 209

111.

App.

3d 999.)

In the case of Patricia McGarr, the factual basis of her opinion

was seriously

eroded

and

in

addition,

as

argued below,

her

credentials as an

expert have been

comprised.

The

County

Board

made

no

reference

to

the

creditability

of

Ms.

McGarr’s

testimony.

It leads one to

inescapably conclude

that this very important issue was never at any

time considered by the finder offact.

Based upon

the foregoing, Patricia

McGarr’s opinions

should

have been stricken

and totally discounted.

c)

Throughout the

siting hearings,

Patricia McGarr insisted

that

she had

a

degree from

Richard

J. Daley Community

College.

She

also

agreed to

provide

proof of that

representation.

(Hearing

I,

Volume

6,

pgs.

36-37).

Her

counsel,

Don

Moran,

also

made

promises

that he would

provide this proofthroughout the siting hearings.

(Hearing I, Volume 7,

pg.

15).

At

no

time

was any proof forthcoming.

To

the

contrary,

it was

shown by

affidavit

during the siting hearing, as well as, by testimony from the Keeper of the Records of Richard J.

Daley Community College

that Patricia McGarr’s testimony with

regard

to

that

issue had

been

false.

Marianne

Powers,

the

Supervisor of

Admissions

and

Markets

and

the

Keeper

of the

Records at Richard J. Daley Community

College, testified at the Fundamental

Fairness hearing

that

indeed Patricia McGarr never

graduated

and

never had sufficient

credits

to

graduate.

She

further testified

that

Patricia

McGarr knew this

before she

testified

at the siting hearings

as

a

supposed expert in the field of Real

Estate

Appraisal. (Hearing II,

Volume 2,

pgs.

60-95).

Ms.

McGarr’s reliance

on

that

degree

in

her Curriculum

Vitae and

her

insistence

that

she received

that degree and was willing

to

provide it in spite of the obvious fact that she never received one,

destroys

her creditability

as a

witness.

It most

certainly undermines her

proffered credentials,

but more importantly,

it shows her willingness to

falsify in order

to sell her opinion.

The record

23

---

clearly

shows

that

she

was

a

hired

agent

of

the

Petitioners.

This

coupled

with

her

iiiisrepresentation as to

her degree should serve as a basis to

bar all ofher testimony.

During the siting hearings on November 20, 2002,

the hearing directed

Mr. Moran

to

provide Attorney Flynn with

a certified copy of Ms. McGarr’s diploma.

Moran said he would,

but

never did.

Attorney

Flynn

then said, “If that

is not produced,

I would like

an opportunity to

cross-examine this

witness

further”.

The hearing officer replied,

“fine”.

(Hearing

I,

Volume

7,

pg.

16).

The Illinois Appellate Court

in Herington

vs.

Smith,

138

111. App.

3d

28, held has

follows, “The Court, however,

has inherent power and responsibility to safeguard the integrity of

thejudicial

process.

Where perjured testimony so permeates

that process as to constitute

a fraud

upon

the court, false testimony by

a material

witness may alone be

sufficient to

warrant a

new

trial.”

In this case, the City of Kankakee and the other Objectors are entitled to

a full disclosure

of the Petitioner’s

expert’s credentials.

They were never forthcoming

and

in

fact the Petitioner

did

everything

he

could to sidestep the obvious

fact that

Patricia McGarr’s credentials had

been

falsified.

The result is twofold:

(1) Her testimony is inherently incredible and should be stricken

and the finding of the County Board as to

Criterion

3

should be

found to

be against the manifest

weight of

the

evidence;

and

(2)

That

the

perjured

testimony

relied

upon

by

the

Petitioner

completely destroys the fundamental fairness for all Objectors.

C.

That

the

Board’s

finding

of

compliance

with

Criterion

5

that

the

plan

of

operation

for

the

facility

is

designed

the

minimize

the

dangers

to

the

surrounding

area from

fire, spills,

or

other operational accidents,

is

against the

manifest weight ofthe evidence.

The evidence referred to

above which indicates that the proposed operation of the facility

does not include a monitoring system to

protect against radiation hazards and other shortcomings

in Petitioner’s plan does not support a finding called for in Criterion

5.

In addition,

Objector from

the City of Kankakee incorporates

its

arguments

set

forth

in

paragraph III A. above.

D.

The

Board findings of compliance with Criterion 6 that the traffic patterns to

or from

the facility

are

so designed

traffic flow, is against the manifest weight ofthe evidence.

24

---

Petitioner

called

Steven

Corcoran as

its

expert traffic

flow design.

Mr.

Corcoran

is

a

traffic engineer,

employed by Metro Transportation Group,

Inc.

Mr. Corcoran’s

conclusions are based

upon

a

minimal amount ofdata which

brings into

question

the accuracy of his

conclusion.

Mr. Corcoran

specifically

testified, “Our intersection

counts at 6000 we had

people there during the course of one day during the morning period and

the evening period.

So that’s one day

for several hours during that one day.

We placed

another person doing

a

12-hour count at the entrance to

the existing landfill.

So that was

12 hours in

the course of one day.

And what

we actually do there is we don’t have one person sit there for

12 hours.

They

-

-

we break

them up into shifts.

And then we have our

-

-

usually our traffic count supervisor or his

assistants

would

go

out

and

set

up

the tube count.

And so they’d

make three total

trips

during

the

course of that

week:

one to

set it up, at least one to

check on it in the middle of the week, to

see

-

-

I’m sorry

-

-

if a tube got torn

up, and then at least one other trip.

So two or three days they made spot visits

to set up the equipment or check on it or pick

it up.”

(Hearing I, Volume

5,

pgs. 96-98).

It

is

clear

that

the

amount

of

data

relied

upon

by

Mr.

Corcoran

in

reaching

his

conclusions

was

not

sufficient

to

carry

Petitioner’s

burden

of

proof on

Criterion

6

and

is

therefore

against the manifest weight of the evidence.

E.

The Board

finding of compliance with

Criterion

8

that the proposed

facility

is

consistent

with

the

waste

management

plan

adopted

by

the

County

Board, is against the manifest weight ofthe evidence.

City of Kankakee readopts and restates its argument set forth in paragraphs

I.

F

and

II.

B

(Supra)

Not

only

do

these arguments go

to

the

issues ofjurisdiction

and

Fundamental

Fairness,

but

also

clearly establish

that

the proposed

facility

is

not

consistent

with

the County’s

waste

management plan.

Therefore, the Board’s finding that

it

is

so

consistent

is

against the manifest

weight of the evidence.

Conclusion.

Based

upon

the

foregoing

arguments,

the

finding

of

the

Kankakee

County

Board

approving

the

siting

of a

Landfill

facility at

the

location

proposed

in

the

Petition

referred

to

25

---

therein

is

against the manifest

weight of the evidence

and

the finding

of said

Board

should

be

reversed.

Respectfully submitted,

By

_____________

Kenneth A.

Leshen

Assistant

City Attorney

Prepared by:

L.

Patrick Power

Assistant City Attorney

956 N. Fifth Ave.

Kankakee, IL

60901

(815) 937-6937

Reg.

No. 2244357

Kenneth A.

Leshen

Assistant City Attorney

One Dearborn Square,

Suite

550

Kankakee, IL

60901

815/933-3385

Reg. No. 03127454

26