1. NOTICE OF FILING
C C) P~i7
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JP~N
9
2004
~
U~-
~w~kauS
BYRON SANDBERG,
)
OLLtJ11ON
CONTROL ~OARt~
Petitioner,
)
)
vs.
)
)
Case No. PCB 04-33
CITY OF KANKAKEE, ILLINOIS,
THE
)
CITY OF KANXAKEE, ILLINOIS CITY
)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES,
INC., and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
WASTE MANAGEMENT OF ILLiNOIS,
)
INC.,
)
Petitioner,
)
)
vs.
)
)
THE CITY OF KANKAKEE, ILLiNOIS
)
Case No. PCB 04-34
CITY COUNCIL, TOWN AND COUNTRY)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
COUNTY OF KANKAKEE, ILLINOIS
)
And EDWARD D. SMITH, KANKAKEE
)
COUNTY STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
CITY OF KANKAKEE, ILLINOIS, THE
)
Case No. PCB 04-35
CITY OF KANXAKEE,
ILLINOTS CITY
)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on January
8, 2004 there caused to be filed via Federal
Express-Overnight Delivery with the Illinois Pollution Control Board an original and 9 copies of
the following document, a copy ofwhich is attached hereto:
BRIEF
OF THE CITY OF
KANKAKEE,
ILLINOIS
IN
RESPONSE TO THE BRIEFS OF THE COUNTY OF
KANKAKEE AND
WASTE MANAGEMENT OF ILLINIOS, INC. OPPOSING THE
DECISION
OF THE CITY OF
KANKAKEE
GRANTING SITE LOCATION APPROVAL FOR THE
KANKAKEE
REGIONAL LANDFILL
Respectfully submitted,
The City ofKankakee
By:_____
Attorney fo
City ofK
akee
Prepared by:
L. Patrick Power #2244357
CorporateCounsel
956
North Fifth Ave.
Kankakee, IL
60901
(815)937-6937
2
AFFIDAVIT
OF SERVICE
The undersigned, pursuant to the provisions of Section
1-109 ofthe Illinois Code of Civil Procedure,
hereby under penalty of peijury under the laws of the United Statesof America, certifies that on January 8, 2004, a
copy of the foregoingCity of Kankakee’s
Response Brief was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James Thompson Center
100
W. RandolphSt., Suite 11-500
Chicago, IL
60601-3218
Richard S. Porter
Attorney at Law
P.O. Box 1389
Rockford, IL 61105-1389
Fax:
(815)
963-9989
Kenneth Leshen
One Dearborn Square, Suite
550
Kankakee, IL
60901
(815)
933-3385
(815)
933-3397 Fax
George Mueller
Attorney at Law
501
State Street
Ottawa,
IL 61350
(815)
261-2149
(815)
433-4913
Fax
Brad Halloran, Hearing
Officer
Illinois Pollution ControlBoard
100 W. Randolph St., Suite 11-500
Chicago, IL 60601-3218
Fax: (312) 814-3669
Donald
J. Moran
Attorney at Law
161
N. Clark, Suite 3100
Chicago, IL 60601
(312) 261-2149
(312)261-1149 Fax
Elizabeth Harvey,
Esq.
OneIBM Plaza, Suite 2900
330 N. Wabash
Chicago, IL 60611
(312) 321-9100
(312)
321-0990 Fax
ChristopherBohien
Barmann,
Kramer& Bohien,PC
200 E. Court St., Suite 602
P. 0. Box 1787
Kankakee, IL 60901
Edward Smith
Kankakee County Administration Bldg.
189 E. Court St.
Kankakee, IL 60901
(815)
937-3932 Fax
Byron
Sandberg
109 Raub St.
Donovan, IL 60931
byronsandberg~starband.net
By
depositing
a
copy
thereof,
enclosed
in an
envelope
in
the
United
States
Mail
at
Kankakee,
Illinois,
proper
postage prepaid, before the hour of 6:00 p.m., on 8th
day o~a~2004~ddr~7bove.
2004.
3
REC~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BO~J~
9
2004
BYRON SANDBERG,
)
Ul~IW~U~$
POLLUT~
CONTROL ~OAR~~
Petitioner,
)
)
vs.
)
)
Case No. PCB 04-33
CITY OF KANKAKEE, ILLINOIS, THE
)
CITY OF KANKAXEE, ILLINOIS CITY
)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Petitioner,
)
)
vs.
)
)
THE CITY OF KANKAKEE, ILLINOIS
)
Case No. PCB 04-34
CITY COUNCIL, TOWN AND COUNTRY)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
COUNTY OF KANKAKEE, ILLINOIS
)
And
EDWARD D.
SMITH, KANKAKEE
)
COUNTY STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
CITY OF KANKAKEE, ILLINOIS, THE
)
Case No. PCB 04-3
5
CITY OF KANKAKEE, ILLiNOIS CITY
)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, LLC.,
)
)
Respondents
)
BRIEF OF THE CITY OF KANKAKEE, ILLINOIS
IN
RESPONSE TO THE BRIEFS OF THE COUNTY OF
KANKAKEE
AND
WASTE MANAGEMENT OF ILLINIOS. INC. OPPOSING THE DECISION
OF THE CITY OF
KANKAKEE
GRANTING SITE
LOCATION APPROVAL
FOR THE
KANKAKEE
REGIONAL LANDFILL
Respondent,
CITY
OF
KANKAKEE,
Illinois,
a
municipal
corporation,
(hereinafter,
City) by its
attorneys,
Christopher Bohien,
Kenneth
Leshen and L.
Patrick
Power, submits
the following as and for its response
to
the brief filed by
the County of
Kankakee (hereinafter,
County)
and
Waste
Management of Illinois,
Inc.
opposing
the
decision of the City granting site location approval for the Kankakee Regional Landfill on
August
18, 2003.
On December 23,
2003, Petitioners,
County,
and
Edward D.
Smith as Kankakee
County
State’s Attorney,
filed a brief in the above
captioned matter seeking a reversal of
the
August
18,
2003
decision granting
site location
approval.
Waste
Management
of
Illinois,
Inc.,
adopted
the
brief of the
County
and
all
of the
arguments
and analyses
contained therein
as
its own.
Since the briefs
of the
two parties
are identical, this reply
brief will make reference to
the brief filed by the County and any reference made thereto
should be
considered
as
relating
to
the brief of
Waste
Management
of
Illinois, Inc.
as
well.
I.
The County
argues
in its
brief in paragraph
I.
that the
City
did not
have
jurisdiction to
hold a landfill siting hearing.
It sets
forth specific arguments in support of
its
opposition
to
the
City’s jurisdiction
to
hear
the
application.
The
City
adopts
and
incorporates
by
reference
the reply brief
filed
by
Town
&
County
Utilities,
Inc.
and
Kankakee Regional Landfill, L.L.C., by and through its attorney, George Mueller, and the
2
arguments and analyses contained therein, for its own, as well as all ofthe arguments and
analyses therein.
II.
The
County
argues
in
its
brief that
the
City
Council
decision that
the
Applicant met the Section
39.2(A) criteria, is against the manifest weight of the evidence.
The brief specifically argues
that
the City Council’s
findings
that the proposed
landfill
met Criterion ii is
against the manifest weight ofthe evidence and that the City Council’s
finding that the proposed landfill met Criterion
viii is
against
the manifest weight of the
evidence.
The County further argues that there is no
evidence that an independent entity
prepared the proper value protection program contained within the application or that the
County
approved
it.
Further,
the
County
argues
that
there
is
no
evidence
that
any
environmental
damage fund or insurance was accepted, or even offered to the County,
for
approval, nor was a domestic water well protection program submitted to
be approved by
the County.
In response to
these arguments, the City adopts
and incorporates by reference the
reply brief filed
by
Town
&
County
Utilities,
Inc.
and
Kankakee
Regional
Landfill,
L.L.C., by
and
through
its
attorney,
George
Mueller,
and
the
arguments
and
analyses
contained therein,
for its
own.
III.
The County argues that the City Council’s proceedings conducted
as part
of the site approval procedure was fundamentally unfair.
The County’s attorneys weave a
tangled
web
of
character
assassination,
innuendo,
paranoia
and
half
truths
in
their
continuing
two
year
quest
to
convince
this
Board of the
existence of
an
unholy
cabal
consisting of the City and Town & Country plotting to cheat the County out of its right to
a fair
and open
hearing.
The
County’s
distortion
of the
facts poisons
the
roots
of its
3
position.
The County
and
its
attorneys
avert their gaze from
the
fact that
this Board
in
PCB
case
#
03-3 1,
03-33,
and
03-35
has
already
determined
that
the
earlier
contacts
between the City and the applicant were permissible and did not contravene the tenets of
fundamental fairness and due process.
The
County
attacks
Corporation
Counsel
Christopher
W.
Bohlen,
asking
this
Board to
infer improper conduct based on his claims ofprivilege and his
innocuous
and
limited contacts with Ronald Yarborough, Tom Vollini and Hearing Officer Robert Boyd.
The evidence, in fact, establishes the
following:
a.
The City, a home rule unit, filed a lawsuit against the County to
enjoin
the illegal expenditure ofits solid waste funds;
b.
The City, a home rule unit, filed a lawsuit against the County seeking a
declaration
that
the
County’s
solid
waste
plan
is
an
illegal
and
unconstitutional infringement upon the City’s home rule powers.
c.
The
City
never
sought
to
bar
the
County
from
participation
at
the
City’s
siting
hearing.
(Bohlen
Deposition
of
12/1/03,
hereinafter,
Bohien Dep., pgs, 11-12).
d.
Richard
Simms,
Superintendent
of the
Kankakee
Municipal
Utility
obtained a list ofconsulting experts to help him in providing assistance
to
the
City
Council.
He
obtained
the
list
from
the
Illinois
Environmental
Protection
Agency
and
others
and
reviewed
the
list
with Bohlen.
(Bohlen Dep., p.14)
e.
Bohien and
the City Council
had no
knowledge that
Volini had
ever
spoken with
Yarborough regarding
this
potential
assignment
or that
4
Yarborough had worked on a project
with Vollini
nearly two
decades
prior.
(Bohlen’s
Dep.pgs.15-16 and Yarborough’s Dep. pgs. 9-15).
f.
Yarborough billed
the City for his
consulting
and
did not
bill
Volini
for his work. (Yarborough Dep. p.16.)
g.
In the City Council meeting of February,
2003,
the Council went
into
executive session
to
discuss litigation.
Corporation
Counsel
Bohlen
refused
to
testify
at
his
deposition
regarding
the
substance
of that
meeting,
being
constrained
from
doing
so
by
the
mandates
of the
attorney-
client privilege
and by
the
mandates
of
5
ILCS
120/2
(c)
(21)
which
provides
that
the
minutes
of executive
sessions
are
not
public
record
and
therefore
not
disclosable under
the
Open Meetings
Act.
(Bohlen Dep.,
p.
6.)
That the
County’s
attorneys seek
to
draw
negative
inferences
from
the
assertion
of
these
privileges
is
reprehensible.
h.
Hearing Office Robert Boyd prepared proposed findings of fact based
upon
what he
heard at the hearing, his
review of the
transcripts, his
notes and
his review of the proposed findings of facts by all parties to
this
siting hearing.
He
asked
for
and
received
the
findings
of fact
prepared in
connection with
the prior hearings, made the changes he
felt appropriate based on what he heard and sent his
proposed findings
back
to
the
City.
(Boyd
Deposition
of
November
14,
2003,
hereinafter, Boyd Dep. pgs
20-21
&
35.
and
Bohien’s
dep.,
pgs.
19-
20).
Bohien
drafted
the
additional
condition
recommended
by
5
Yarborough
concerning
grouting,
a
condition
not
present
in
the
original application of Town &
Country.
(Bohlen Dep., p.
21).
Once
again,
contrary
to
the
County’s
Machiavellian
view
of
these
proceedings, the facts are simpler
and less
tangled.
All of the parties
submitted proposed facts.
The hearing officer asked for a template to
assist
in
crafting
his
document
and
reviewed
all
of
the
proposed
findings
from
whatever
source
prior
to
making
his
recommended
findings.
Corporation
Counsel Bohien further acknowledged that
he
may have
drafted the paragraph of the proposed findings
relating to the
attempt
ofKankakee County to
deny the City ofKankakee the ability
to
site a
solid waste
facility in the City of Kankakee. (Bohlen Dep.p.22.)
It is
instructive
to
note
how the
County
through
its
attorney
distorts
this
testimony
in
its
brief.
The
County
distorts
Bohien’s
testimony
by
stating in its brief that Bohien admitted that he may have drafted other
sections
of
the
report,
including
the
references
to
the
improper
infringement of the home rule authority of the
City of Kankakee.
In
fact
Bohlen’s
deposition
contains
no
such
testimony.
Bohlen
is
absolutely
clear
that
he
drafted the
portion of the proposed
findings
relating
to
the
grouting
requirement
to
be
imposed
on
Town
&
Country
and
that
he
may
have
drafted
the
portion
concerning
the
County’s illegal
activities, although
he had no
specific recollection of
having done
so.
The distortion ofthe County is a flat out lie.
6
j.
Bohien testified that his practice was to
delete e-mail communications
on
a
daily
basis.
He
further
testified
that
his
computer
had
been
infected by
a virus
and
ultimately needed
to
be
replaced.
He further
testified that he had
searched computers both at his private office and
at City Hall and that”.
.
.
there is no
reference to
the Boyd documents
on
any
computer
I have.
There
is
also
no
record
of any
proposed
findings of the landfill
on
any
documents I
have, not
even the
2002
landfill proposed findings
that I drafted on that same computer.
Those
documents no
longer, they may exist somewhere, but they don’t exist
anywhere I can find them.”
(Bohlen Dep., p.43.)
The County seeks to
have
this
Board
draw
the
inference
that
these
documents
were
destroyed to
conceal wrongdoing.
Again,
the reality is much simpler.
Pursuant
to
policy
and
practice
Bohlen
deleted
c-mails
on
a
daily
basis.
He suffered
the
inconvenience of a
crashed
computer
system.
The
County
through
its
attorneys
wants
to
persuade
this
Board
that
because documents
are missing
the City has violated the standard of
fundamental fairness.
As
stated by Sigmund Freud, sometimes
a cigar
is just a cigar.
IV.
In addition thereto,
the City of Kankakee states and
argues the following,
to wit:
1.
All of the contacts referred
to by Kankakee County in paragraph III. A.
1.
of its
Brief,
refer
to,
“pre-filing
contacts”.
Such
contacts
are
not
prohibited
by
the
procedural
requirements
of
Section
39.2.
The
Pollution
Control
Board
has
already
7
decided that these contacts did not violate fundamental fairness in its decision in cases no.
PCB 03-3 1, 03-33 and 03-35.
2.
The County’s
argument kicks
up a lot of dust
in an effort to
obfuscate the
issues in this case.
However, the County makes no
claim that hearing Officer Boyd was
unfair in
his
rulings or that
he
did
not
allow
objectors
to
fully
and
fairly present their
case.
Nonetheless, despite the dearth of evidence, the County
plunges
blindly
forward
and
seeks to have this
Board conclude that Boyd
was not
only tainted but
that his taint
somehow reached
into the
City Council,
the ultimate
fact finder and
decision maker in
this
case.
There
is
no
evidence
to
support
that
conclusion.
There
is
no
evidence
to
support
the
conclusion that
any
statements made
in
the
executive
session of the
City
Council in February,
2003 in anyway related to the yet
to be filed siting application or in
anyway
belittled
the
reputation
of the
objectors
or
enhanced
the
reputation
of
the
applicant’s witnesses.
Public
officials should
be
considered to
act without bias.
E&E
Hauling.
Inc.
v.
PCB,
107
Ill.2d
33,
42
(1985).
There
is
no
inherent bias
shown
by
the
City’s
use of
Yarborough
as
an
investigatory
consultant.
(Id
at
43.)
Where
a
municipal
board
“operates
in
an
adjudicatory
capacity,
bias
or
prejudice
may
only
be
shown
if
a
disinterested
observer might conclude
that the administrative body,
or its
members, had
in some
measures adjudged the facts as well as the law ofthe case in advance of hearing
it.”
Concerned Adjoining Owners v.
PCB.
288
Iii. App.
3d
565,
573
(1997).
The facts
of the instant
case
do
not reveal that the
Council had
made any prejudgments
about the
criteria
for
siting
approval.
On
the
contrary,
the
record
shows
that
the
Council
and
Richard Simms,
one of its
advisors, asked relevant questions of all
the witnesses about
8
each
of the
criteria.
The
questions
did
not
demonstrate
any
bias
for
or
against
the
approval.
The
objectors have not
produced any evidence
to
establish
that
the
Council
was biased.
Rather, through
the use of smoke
and
mirrors,
the County
takes innocent
actions and innocuous communications and continues to weave its web.
Wherefore,
the City ofKankakee prays that this Board ratif~’
the decision of the
City Council
granting site approval to the applicant, Town & Country.
Dated: January 8, 2004.
Respectfully submitted,
City
fKankake
By:
~
It’s
Z~
Powerand Kenneth A. Leshen
Prepared
by:
L.
Patrick
Power #2244357
Assistant City Attorney
956 N. Fifth Ave.
Kankakee, IL
60901
(815)
937-6937
9

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