RECEIVED
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERKS OFFICE
FEB
-
92004
ROCHELLE WASTE
DISPOSAL, L.L.C.
)
Petitioner,
)
)
VS•
Case No.
PCB
03-218
CITY COUNCIL OF
THE CITY OF
ROCHELLE, ILLINOIS
)
Respondent.
)
AGREED MOTiON TO EXCEED PAGE LIMIT FOR POST HEARING BRIEF
NOW
COMES
the
Respondent,
CITY
COUNCIL
OF
THE
CITY
OF
ROCHELLE,
ILLINOIS, by
and through
its
undersigned counsel of record, and
for
its
Motion to Exceed
Page
Limit for Post Hearing Brief,
state as follows:
1.
35
Il.Adm.Code
101.302(k) states
as follows:
Page
Limitation.
No
motion,
brief in
support
of motion,
or
brief may
exceed
50
pages,
and
no
amicus
curiae
brief
may
exceed
20
pages,
without prior
approval of the
Board
or hearing officer.
These
limits
do
not include
appendices containing relevant material.
2.
In
order
to
fully
and
fairly present Respondent’s
case before
this
Board,
Respondent’s
brief must exceed
50 pages as
is
allowed by 35
i1.Adm.Code
101.302(k).
3.
Respondent previously agreed to
allow Petitioner
to
exceed
50 pages
in
its
Post Hearing
Brief because of the
many
issues
raised
in
this
Appeal,
and
in
fact, Petitioner’s
brief was
76
pages in length.
4.
Respondents
are now responding to Petitioner’s
76 page
Post Hearing Brief, which asserts
that
the
landfill siting hearing was
fundamentally
unfair
and
that Respondent’s
denial
of landfill
70389305v1
827~o7
siting was
against
the
manifest
weight
of
the
evidence
based
on
the
Respondent’s
findings
regarding criteria i, ii,
iii,
vi and ix.
5.
Because
of the
numerous
issues
involved
in
this
Appeal
and
Respondent’s
need
to
set
forth
substantial
factual
and
technical
information
relating
to
fundamental
fairness
and
the
contested statutory criteria,
it will be necessary for Respondent’s Post Hearing Brief to
exceed
50
pages.
6.
The Petitioner’s Qounsel has agreed to allow Respondent to exceed page limits, but no
contact has yet been made with Petitioner’s counsel.
7.
Therefore,
Respondent requests
this Board
grant authority to
exceed
the
50
page
limit in
its Post Hearing Brief to approximately
75 pages.
WHEREFORE,
the
Petitioners
herein
respectfully
request
that
the
Pollution
Control
Board
grant
Petitioners
authority
to
exceed
the
50
page
limit
set
forth
by
35
I1.Adrn.Code
101.302(k).
Dated: February
6,
2004
Respectfully submitted,
CITY COUNCIL OF THE
CITY OF
ROCHELLE,
ILLINOIS,
By: HINSHAW & CULBERTSON
Richard’?.
Porter
One of Its Attorneys
HINSHAW &
CULBERTSON LLP
100
Park Avenue
P.O. Box
1389
Rockford, IL61105-1389
815-963-8488
This document utilized 100
recycled paper products
20389305v1
827167
AFFIDAVIT
OF SERVICE
The
undersigned,
pursuant
to
the
provisions
of
Section
1-109
of
the
Illinois
Code
of
Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America, certifies that
on February 6, 2004, a copy of the foregoing was served upon:
Michael F. O’Brien
McGreevy, Johnson
& Williams, P.C.
6735
Vistagreen Way
P.O. Box
2903
Rockford, IL
61132-2903
George Mueller, P.C.
Attorney atLaw
501 State Street
Ottawa, IL 61350-3578
Mr. Alan Cooper
Attorney at Law
400 May Mart Drive
P.O. Box
194
Rochelle, IL
61068
Bruce McKinney
Rochelle City Clerk
City of Rochelle
6th Street& 5th Ave.
Rochelle, IL 61068
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, 11th Floor
Chicago, Illinois 60601
Ms. Dorothy Gunn, Clerk
Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
By depositing a copy thereof, enclosed in an envelope
in the United States Mail
at Chicago, Illinois,
proper postage prepaid, before the hour of 5:00 P.M., addressed as above.
H1NSHAW &
CULBERTSON
100 Park Avenue
P.O. Box
1369
RockfordjL
61101
(815)
490-4900
703?941(,vI
829983
RECEIVED
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
CLERK’S OFFICE
FEB
-
92004
ROCHELLE
WASTE DISPOSAL,
L.L.C.
)
STATE
OF iLLINOIS
Poflution Control Board
Petitioner,
)
V5~
Case No.
PCBO3-218
CITY COUNCIL OF THE
CITY OF ROCHELLE,
)
ILLINOIS
)
)
Respondent.
RESPONDENT’S POST-HEARING BRIEF
RICHARD S. PORTER
CHARLES F. HELSTEN
HINSHAW &
CULBERTSON LLP
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
(815) 490-4900
This document utilized
100
recycled
paper products
7O394862~)829983
I. INTRODUCTION.
1
II.
STATEMENT OF FACTS
AS
TO FUNDAMENTAL FAIRNESS
2
A.
Testimony
of Donald Bubik
3
B.
Testimony of Ed Kissick
4
C.
Testimony of Wendell “Pal”
Cobvili
6
II.
Testimony ofAlan Hann
6
E.
Testimony of Kenneth Roeglin
7
F.
Testimony ofJohn
O’Brien
7
G.
Testimony
of Frank Beardin
8
El.
Testimony ofJohn
l-Iolmstrom
9
I.
Testimony
of Charles F.
Heisten
11
J.
Testimony of Thomas
Hubert
12
Ill.
STATEMENT OF FACTS AS TO
CRITERIA
12
A.
Criterion
i
12
B.
Criterion ii
14
C.
Criterion iii
23
D.
Criterion vi
26
E.
Criterion ix
27
IV.
ARGUMENT
28
A.
The Siting Process
Was Fundamentally Fair
28
1.
The Applicant was given
ample
opportunity to present its
case
30
2.
The decision
was based
on the record
31
3.
The Applicant has not met its
Burden Showing “Irrevocable Taint”
using the
E&E Hauling
Factors
32
a.
The communications
by the public were not grave
33
b.
The communications
did not influence the decision
35
c.
No Party Benefited From the Alleged
Ex Pane
Communications
37
d.
The Applicant Was Aware of the Public Opposition to its
Application
and Had an Opportunity
to Respond
37
e.
No Useful Purpose Would be Accomplished
by Reversing
or
Remanding the City Council Decision
38
4.
The Hearing Officer did not Allow any Testimony Regarding the
Mental Impressions of the Decision-Makers by Either the Petitioner
or Respondent
38
5.
There is
no evidence of prejudice
39
6.
The Applicant’s claim that the Standard
Should be
Changed from
Requiring an Applicant to show Actual Prejudice to
a mere
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recycled paper products.
70394222v1 829983
Appearance of Impropriety
Should be Disregarded
as
it is not
Supported by Illinois Law
43
7.
The Petitioner has Admitted that it Suffered No Prejudice as
a Result
of the Council’s April
28, 2003 Meeting
48
B.
The City Council’s Findings that Criteria i, ii,
iii and vi were not met are not
Against the Manifest Weight of the Evidence
50
I.
The City Council’s Decision that the Proposed Facility
was not
Necessary was not Against the Manifest Weight of the Evidence
54
2.
The City Council’s Finding that the Proposed
Facility was not
Designed, Located or
Planned to be Operated to Protect
the Public
Health, Safety and Welfare was
not Against the Manifest Weight of
the Evidence
59
3.
The
City Council’s Finding that the Facility was not Located so as to
Minimize Incompatibility with the Character ofthe Surrounding
Area
and to Minimize the Effect
on the Value of the Surrounding
Property is not Against the Manifest Weight of the Evidence
65
4.
The
City Council’s Finding that the Traffic Patterns to or from the
Facility are not so Designed to Minimize the Impact on Existing
Traffic Flow is not against the Manifest Weight of the Evidence
70
V.
CONCLUSION
74
2
70394222v1 829983
I.
INTRODUCTION
The
Applicant,
Rochelle
Waste
Disposal,
L.L.C.,
(hereinafter
“Rochelle
Waste”)
first
flied
an application on January
21,
2000.
That application went to
a hearing in front of the City
Council
and was withdrawn
after the hearing officer
in that
case issued
a
recommendation that
there be
a finding of failure
to meet criteria i, ii,
and vi.
On November 22, 2002, Rochelle Waste
Disposal re-filed its
application.
That application
sought both
horizontal
and vertical expansion
of an
existing pollution control facility in Rochelle, Illinois.
(C0001,
41).
The proposed facility
was
designed
to
expand the
existing
80-acre
facility
to
a
320-acre
facility
and
increase
the
elevation ofthe current facility by
84
feet.
(Id)
The proposed facility is designed to
receive ten
times more waste than the current facility.
(C0001,
103).
The proposed facility is
to be located within the corporate limits of Rochelle, Illinois, but
the Village of Creston,
Illinois
is
located
very
near the
site.
The site
is
physically bounded
by
Mulford Road,
Creston Road,
the Union Pacific Railroad
and Locust Road.
(2/25/03 Tr.
139).’
The current
facility mainly
serves
Ogle
County,
and
also
serves
sonic of the
waste
from
the
surrounding counties ofLee, Kane,
DuPage and
Winnebago.
(C000l,
133).
The service area for
the proposed expansion
is much larger, consisting of 21
counties
in
Northern Illinois.
(2/25103
Tr.
22).
The landfill is proposed to accept
an average of 2,500 tons ofwaste per year, but there is
no yearly or daily tonnage cap, restricting waste to
that amount.
(3/3/03
Tr.
54).
The landfill siting hearing took
place
on
February
24,
2003,
through
March
4,
2003,
at
which
time
approximately
1350 pages of testimony was taken.
The
application
itself consisted
of an
eight volume,
6,122 page application, plus
11,980 pages of additional documents submitted
to
the City Council.
(See
Petitioner’s
Brief,
p.
1).
Following
the
siting hearing, the Hearing
The
City of Rocheile transcript will be cited by the date of the
hearing and page number,
for example,
“2/24/03
Tr.
The IPCB
transcript will be
cited as
“Tr.
“.
The
City
Record will be cited
according
to the
Index of Record as “C”.
This document utilized
100
recycled paper products.
70394122,8 829983
Officer recommended approval
of the application,
as
did
the City staff.
(C8155-8210;
C8049-
8150)
However, the city
staff proposed
that
any
approval be
subject to
49
conditions,
which
related to
a variety oftopics including each of the criteria that were ultimately denied by the City
Council.
(C8049-8150).
Likewise,
the Hearing
Officer’s
recommendation
was
for approval
only if 50 conditions were
imposed.
(CS
155-8210).
Rather than approving the application with
such extensive conditions,
the City Council
found that criterion i,
ii, iii, and vi were not met.
Initially
at the
April
24,
2003,
meeting, the City Council
found that criterion
ix
was not
met, but
it reconvened
on April 28,
2003,
and
found that indeed criterion
ix had been
met.
Also
on
April
28,
2003,
the
City
Council
motioned
and
voted
that
if
for
any
reason
the
Illinois
Pollution Control Board
(IPCB) or an Appellate Court reversed the City’s Council’s decision and
somehow found
that
the
application
is
approved, the
fifty
conditions
proposed
by
the
hearing
officer be imposed.
(C8245).
The applicant filed
a petition to
review, which asserts that the City Council’s
findings as
to
criteria
i,
ii,
iii,
vi,
and
ix
were
against
the
manifest
weight
of the
evidence
and
that
its
decision
was
fundamentally
unfair.
(C8218-8247).
The
applicant provides
no
basis
for
its
assertion offundamental unfairness within the petition.
Id.
II.
STATEMENT OF FACTS AS TO
FUNDAMENTAL FAIRNESS
The
applicant
issued
written Interrogatories,
Production
Requests,
Requests
to
Admit,
and
took
the depositions of eight different
individuals,
including
past
and present
City Council
members, members of the public,
and
the President
of the Concerned
Citizens
of Ogle
County
(hereinafter “CCOC”),
during
discovery for the IPCB
Section 40.1
hearing.
The City took one
deposition,
John Holmstrom,
who
was
the
general
counsel
for the
applicant.
After
all
of this
discovery, a hearing was held by the IPCB wherein the applicant examined the four City Council
members who voted against at least one ofthe criteria;
the current President ofthe CCOC, Frank
2
7O394222~l829983
Bearden;
a
member of the
public
by
the
name
of John
O’Brien;
and
the
Applicant’s general
counsel,
John
Holmstrom.
The
City
of Rochelle
called
only
Attorney
Charles
Helsten
as
a
rebuttal witness.
Pertinent portions of each ofthese individuals’ testimony is summarized below.
A.
Testimony ofDonald Bubik
Ex-City Council member Donald Bubik was the first witness
to
testify.
(Tr.
61).
He was
on the City Council
from 2001
until May
1,
2003, at which time
the new Council was sworn.
Id.
Mr. Bubik
testified
that
after the application
was filed
and before
a decision
was rendered on
April 24, 2003,
he was only approached by three individuals
from the public, Barb Renick, Frank
Kranbuhl,
and
Richard Ohlinger.
Id
at page
63.
Mr.
Bubik
did not
know whether any of these
individuals were members of CCOC which was an objector at
the siting hearing.
(Tr.
63-64).
At
the
IPCB hearing, the Applicant’s attorney
did not
ask what
these individuals
attempted
to
say,
nor how
Mr.
Bubik responded.
Id.
However,
on
cross-examination by
the City of Rochelle’s
counsel,
Mr.
Bubik
testified
that
when
these
individuals
came
up
to
him
and
started
to
express
their
opinion,
he
told
them
that
“I
was
unable
to
discuss
anything
about
the
landfill.
That
was
the end of our conversation.”
(ft.
81).
Rochelle’s
counsel
attempted
to
ask
Mr.
Bubik
whether
or
not
those
unsolicited
statements had any
impact on his
decision; however, the Hearing
Officer sustained the objection
of the
Applicant’s
counsel
on
the
grounds
that
such
would
be
an
improper
delving
into
the
mental impressions of the decision-maker.
(Tr.
82).2
Indeed, the Hearing Officer was consistent
in
disallowing
both
sides
from
asking
questions
that
delved into
the mental
impressions ofthe
decision-makers,
including
whether
or
not
a
specific
out
of
court
statement
prejudiced
or
impacted the decision of a City
Council
member.
(Tr.
73-75, 77-78,
81-82,
120-121,
132-133,
2
An
offer of proof was made
wherein Mr.
Bubik
indicated that his
unsolicited out of court statements had no
impact
on his decision.
(Tr.
82-83).
3
70394222v1
829983
135-137).
Mr. Bubik did
concur
that he
made a statement to
a newspaper reporter after the vote
and
stated “I voted the way the citizens wanted it to
go” and
“the people of this area do not want
a
landfill.
The message I was getting was that we didn’t want it.”
(Tr.
62).
However, Mr. Bubik
stated that
the public
voiced their opposition to the landfill (including
their concerns about need,
compatibility
and traffic) during the hearing.
(Tr.
87).
Mr.
Bubik
testified
that
on
a
Sunday,
while
the
City hearings were
taking
place,
Mr.
Beardin, President of CCOC,
came
to
the
front door of his
house (apparently
Mr. Beardin had
been in
the neighborhood
passing out
signs) at which
time he told Mr. Bubik
“1
have
this
tape I
would
like you
to
see,
Touched by
An Angel.”
(Tr.
64).
He then gave it to
Mr. Bubik
and that
was the extent of the conversation.
Mr. Bubik did
not watch the tape.
(Tr.
64).
The
only
other purported
communication that
was brought
out
by
the Petitioner was a
newspaper
article
that
Mr.
Kenneth
Roeglin
gave
to
Mr.
Bubik
after the
hearing
ended,
but
before the decision was rendered.
(Tr. 72).
Mr.
Bubik did not know whether Mr.
Roeglin was a
member of the CCOC.
The article was put in the public
record on March 28,
2003
as evidenced
by
the
City
Clerk’s
stamp
of that
date.
(Tr.
88;
Respondent’s
Lx.
1).
There was
no
evidence
admitted at hearing that the article was actually reviewed by Mr.
Bubik
as such would have been
an improper delving into the mental impressions and
deliberations ofMr. Bubik.
(See Tr.
75).
Mr. Bubik
testified that the attempted unsoJicited statements (by the three
members
of the public) were
no
different than
what he
heard during the hearing and
that were filed
within the public
comment period.
(Tr.
84, 87).
B.
Testimony ofEd Kissick
Mr.
Kissick
was,
and
is,
a
Rochelle
City
Council
member.
(Tr.
107).
Mr.
Kissick
testified
that
after the application
was
filed he
instructed
his
secretary to
screen
his calls
and
not
to
take any
calls concerning
the landfill
after that
date.
(Tr.
110-ill).
He
knows
that
the City
4
70394222v1 829983
Council answered an
interrogatory
about how many times
he was contacted after the application
was filed and
before the decision, indicating
that Mr. Beardin attempted
to contact
Mr.
Kissick
on
about half a dozen occasions; however,
he
actually does not remember the exact date that
he
received
telephone
calls
from
Mr.
Beardin.
(Tr.
113-116).
He
explicitly
testified
that
in
hindsight
if
his
interrogatory
answer
indicates
that
he
received
the
telephone
calls
after
the
application
was
filed
and
before
decision
such
answer may
be
in
error
because
he
does
not
actually know the dates that he received the telephone calls.
(Tr.
119-120).
Regardless, whenever Mr.
Beardin would
call
(even if it was before the application
was
refiled
in
November of 2002) Mr.
Kissick would
tell
Mr. Beardin that he was
not at
liberty to
discuss
the
application.
(Tr.
117-118).
He
does
recall
that
none
of
those
attempted
conversations took
place
during the hearing.
(Tr.
118).
Mr.
Beardin never offered Mr.
Kissick
the
“Touched
By
An
Angel”
videotape,
and
Mr.
Kissick
never
spoke to
anybody
about
that
videotape.
(Tr.
Its).
At no time
did Mr.
Kissick ever voice to the CCOC that he was going
to
vote one way or
the
other.
(Tr.
121).
At
no
time
did
Mr.
Kissick
ever agree
to
vote one
way or the other
in
exchange
for endorsement by the CCOC.
(Tr.
121-122).
As
to
his
statements
in the newspaper
article after the vote, wherein
he
indicated that it was
his job
to listen
to
the public,
he
explained
that he meant that his job was to
listen
to
all
of the pros
and cons and to keep
an open mind.
(Tr.
123).
He also stated that
at the hearing itself the public
voiced its
opposition.
(Tr.
123).
At no
time
did
Mr. Kissick consider
anything he heard
outside of the hearing
process
as evidence
at the hearing.
(Tr.
123-124)!’
~Inan
offer of proof, Mr. Kissick
testified
that he
kept
an
open mind throughout the siting process
and
did his best
to impartially
weigh the
evidence.
(Ti.
120,
121).
5
70394222v1
829983
C.
Testimony of Wendell “Pal”
Colwill
At the time of the
vote,
Mr.
Colwill
was
a
member of the City Council
for the City of
Rochelle and he continues to be on that council.
(Tr.
127).
Mr.
Colwill
testified that he did
not
recall
Mr.
Beardin contacting him after the application was
filed.
(Tr.
128).
When
Mr. Beardin
attempted
to
talk to
him,
Mr.
CoIwill
told him
that
he could
not speak about the
application
because
he
was
on
the siting
committee.
(Tr.
129).
Mr.
Coiwill
explained
that
all
kinds
of
people attempted
to talk to him about the application because he was campaigning for Mayor and
people would
ask him
where he
stood on
the landfill.
(Tr.
130).
He would
tell the people that
he could not discuss or
comment about the landfill application
because he
was on the siting
committee.
(Tr.
130).
At
no
time
did
Mr.
Beardin offer
him
a
copy
of a
videotape
of the
television
show
“Touched
By
An
Angel”.
He
did
not
believe
that
any of the
statements
(made by members or the public outside for the hearing) were evidence.
(Tr.
133-I34).~
D.
Testimony of Alan Hanu
Mr. Hann is an ex-board member who voted on the application.
(Tr. 137-138).
There
was no evidence that
anyone attempted to
speak to Mr.
Haim about the application
outside of the
hearing.
(Tr.
137-143).
Mr.
Hann testified
that
he received
the unsolicited
form
letters
which
were marked as Petitioner’s Exhibit No.
4.
(Tr.
138).
He
did not
read
all
of those
letters.
(Tr.
138).
He received
those
letters after the application was
filed, and
before, during
and
after the
hearing.
(Tr.
139).
He did
not
know
whether
the senders
of the
letters
were
members of the
CCOC.
(Tr.
139~l40). He did not consider those
letters sent
to his
house
to be
evidence at
the hearing.
(Tr.
142).
In an offer of proof Mr. Cotwill
testified
that
no
statement
made
to him out of the
hearing influenced his decision.
(Tr.
132).
In another offer
of proof he testified that his decision
was
based on
the
Section
39.2 criteria
and
nothing outside of the record.
(Tr.
135.137).
6
70394222v1
829983
Mr. Hann also was
offered a
videotape of the “Touched By An Angel” program by Frank
Beardin,
but
he
did
not
take
it.
(Tr.
140,
142).
Mr.
Beardin did
not
say
anything
about the
television program or the landfill hearings.
(Tr.
141).
He never watched the television program
and never took the tape from Mr. Beardin.
(Tr.
143).
E.
Testimony of Kenneth Roeglin
Mr.
Roeglin
is a member ofthe public who was called by the Petitioner.
He was not, and
has never been,
a member of the CCOC.
(Ti.
95).
He did
give a
Bradenton, Florida newspaper
article to
Donald
Bubik
sometime between March
25,
2003
and
April
24,
2003.
(Tr.
96).
Mr.
Bubik was the only City Council member to whom Mr. Roeglin recalled handing the article.
(Tr.
96).
Mr.
Roeglin simply gave it to Mr. Bubik and turned around and left.
(Tr.
104).
He filed the
newspaper
article with
the
City Clerk
for the
City of Roehelle on
March
28,
2003.
(Tr.
104-
105);
Respondent’s Ex.
1.
At no
time
did Mr.
Bubik discuss the landfill
with Mr.
Roeglin.
(Tr.
106).
At
no
time
did
a City
Council
member
indicate his
opinion regarding the
application.
(Tr.
104).
At no time did any City Council member discuss the application with him after
it
was filed on November
22, 2002.
(Tr.
104).
F.
Testimony ofJohn
O’Brien
Mr.
O’Brien
is
a
member of the public who
was
called
by
the applicant.
(Tr.
145).
He
believes
he
expressed
his
opinion
after
the application
was
filed
and
before the
City Council
rendered its decision to City Council members Coiwill,
Bubik and possibly Hann.
(Tr.
145).
He
telephoned
Mr.
Bubik to
offer to allow him
to post his
election
signs in
Mr. O’Brien’s business
window.
.
(Tr.
153-54).
During
that
conversation,
he
informed
Mr.
Bubik
of his
opinions
regarding the landfill,
but
at no
time did
Mr. Bubik
ever solicit
those opinions.
(Tr.
154).
At
no
time did Mr.
Bubik ever offer his own opinions regarding the landfill application.
(Tr.
154).
At
7
70394222’il 829983
no time did Mr.
Bubik
ever indicate he
had made up
his mind in any way.
(Tr.
154).
As a matter
of fact, Mr.
Bubik did not
respond at all when Mr.
O’Brien voiced his opinion.
(Tr.
154).
Though Mr.
O’Brien
made a statement to
Mr.
Bubik that
Bubik could find himself in
the
back ofthe church,
he was not
in any way trying to
threaten Mr.
Bubik
and,
instead, was merely
trying
to
impress
upon
him
that
he
understood
that
Mr.
Bubik
had
a
difficult decision
to
make
and that if he had
to
find in favor of the landfill
it might be unpopular.
(Tr.
155).
He is not even
a member of the same church as Mr.
Bubik.
(Tr.
155).
To
his
knowledge,
Mr. Bubik
did
not
believe he
was being threatened.
(Tr.
155).
The unsolicited
comments
he
made to
city
council
members were
no different than
what
Mr. O’Brien
heard
made by
other
members
of the public
at the hearing.
(Tr.
156).
Mr. O’Brien claimed that he made the comments to his public officials because “we
feel as
though we’re living
in
a free country
with the ability for free speech.”
(Tr.
157).
C.
Testimony of Frank Beardin
Mr. Beardin is the current president of the CCOC. The CCOC participated in the siting
hearing
in
front of the City Council.
(Tr.
172).
Mr.
Beardin was present (apparently at a public
meeting) when Charles Helsten informed the City Council members that if the public
approached
them to
ask
questions
about the siting application
that the City Council
should not communicate
with
them
concerning
the
pending
application.
(Tr.
1 73).
Mr. Beardin testified
that he
did
not
recall contacting Edward Kissick after the application was filed.
(Tr.
174).
The Petitioner’s
counsel
inquired of Mr. Beardin about the content of various
letters
that
he
sent
to
the
editor of
the
local
newspaper.
(Tr.
175-183).
Counsel
for
City
of Rochelle
objected
to
this
entire
line
of questioning
on
the grounds
that
it
was
irrelevant, as
there was
no
evidence that
any
of the City Council
members reviewed
the letters
to
the editor
or that
they
were
ever
sent
to
the
City
Council
members.
(Tr.
175-183).
Mr.
Beardin
explained
that
a
8
70394222v1 829983
majority
of the letters were written in
response to
the letters
to
the editor which were issued by
the Applicant,
Rochelle Waste Disposal.
(Tr.
175).
Mr.
Beardin
admitted
that
he
did
approach Mr.
Bubik
and
give him
a
videotape.
(Tr.
184).
The Petitioner’s counsel attempted to
ask Mr. Beardin about the content of the videotape;
however,
the
Hearing
Officer
appropriately
sustained
the
City
of Roehelle’s
objection
as
to
relevancy
because
there
was
no
evidence
that
any
City
Council
member
ever
viewed
the
videotape or the episode.
(Tr.
186).
(In an
offer of proof, the attorney
for the applicant actually
showed
substantial portions of that
episode of “Touched
By An Angel” despite the fact that the
testimony was clear that no City
Council member ever saw the episode).
The videotape does not
even
involve
a
landfill.
(Tr.
202).
To
his
knowledge
no
City
Council member
ever based
his
decision on the episode of“Touched By An Angel.”
(Tr.
202).
Mr. Beardin
again reiterated
that
he
had
no
recollection
of contacting Mr.
Kissick
after
the application was
filed.
(Tr.
197.198).
He also
did
not
recall
ever attempting
to
contact
Mr.
CoIwill.
(Tr.
198).
He explained that the CCOC
did have form
letters
available for members of
the public to
send to
their council
members, if they so desired.
(Tr.
199).
Mr.
Beardin has no
recollection of ever attempting
to
contact the City Council
members
after the application
was filed and before
a decision was
made.
(Tr.
201).
lIe does recall City
Council
members indicating
that they
could not discuss
the application.
(Tr.
201).
At
no
time
did
Mr.
Coiwill
or Mr.
Kissick
ever indicate
to
anyone at the CCOC
that
they
would vote
against the landfill.
Id.
H.
Testimony of John Holmstrom
Mr.
Holmstrom was the general
counsel for one of the partners of Rochelle Waste.
(Tr.
158).
He
admitted
that
he
received
a
telephone
call
from
Charles
Heisten
before
the
City
Council
met
on
April 28,
2003.
(Tr.
158).
He also
admitted
that
Mr. Helsten,
who represented
9
70394222v1
829983
the staff for the City of Rochelle, informed Mr.
Holmstrom that
he intended to appear before the
Rochelle
City Council
to
request
that
the
council
take
some
action
to
incorporate the
hearing
officer’s proposed
conditions,
so
that
if the
City
Council
decision was reversed
on
appeal,
the
conditions
which
were
recommended would
be
incorporated.
(Tr.
159).
Mr.
Holmstrom
also
recalled
that
Mr.
Helsten was concerned
about
the finding on
criterion
ix
and
would
urge
the
Council
to
find that that the criterion had
been met.
(Tr.
159).
Mr. Holrnstrom’s recollection is
that Mr.
Heisten informed him that “nothing would happen that evening, that if anything it would
be
necessary to
have
a
special
hearing on
Wednesday.”
(Tr.
159).
However, at his
deposition,
Mr. Holmstrom testified that he did not recall if Mr. Helsten simply said that he did not know if
the
City Council would
take
action that
evening.
(Tr.
160).
He did
know
that
consideration of
criterion
ix
and
the imposition
of conditions
if there was a
reversal were
going
to
be
topics
of
conversation that evening.
(Tr.
161).
He informed the attorney that handled the siting hearing
for the Applicant, Attorney
Michael
O’Brien,
that
the
issues were
going
to
be
topics at the meeting
that
night.
(Tr.
161).
Mr. Holmstrom himselfhad no scheduling conflicts that would have kept him from being able to
attend
that
evening.
(Tr.
161).
Mr. Tom Hilbert, a representative of the applicant, was present
that evening.
(Tr.
161).
At no time did Mr. Holmstrom voice any objection to Mr. Helsten about
the meeting
taking place
concerning criterion ix or the
conditions.
(Tr.
162).
He never informed
Mr.
Heisten
he
could
not
make
it
to
the
meeting,
and
indeed he
could have made it if he had
desired.
(Tr.
162).
Mr. Holmstrom
also admitted
that he
was
aware there was
going to be
a city
council meeting that
evening, even before Mr. Heisten telephoned.
(Tr.
163).
Mr. Holrnstrom also admitted he had no objection to the City Council finding that the
application met
criterion ix
and
that his only
reason
for now bringing up the issue
is because he
10
70394222vJ
829983
did
not feel there was
any basis
for the original
finding that the criterion was not
met,
(Tr.
164).
He also admitted that
at the Section 39.2 hearing in front of the City Council, “recharge areas”
were topics of discussion and he does not know ifthe recharge areas thatwere discussed at that
hearing were confused by the City Council with a regulated recharge area as a referenced
in
criterion ix.
(Tr. 165-166).
Mr. Holmstrom also admitted that his company
is perfectly able ~~yjllin to comply
with the conditions, had approval been granted subjected to those conditions.
(Tr.
164).
Mr.
Holmstrom
also admitted
that
at deposition
he
testified
that
as
to
the
imposition
of the
conditions, “in a practical sense, it was
Lp~judici~i.”
(Tr.
167) (emphasis added).
I.
Testimony
of Charles F. Helsten
Mr. Heisten
is partner at the law firm of Hinshaw & Culbertson LLP and represented
staff of the City of Rochelle.
(Tr. 231).
Mr. Hclsten
testified that on April
25, 2003, he
contacted City staff and indicated that he would like to approach the City Council in a public
meeting (so that therewere no
expw’te
problems)
and point out
to
them
that there was only
one
regulated recharge
zone
in
the
State of Illinois
as
a
matter of law, which
is
located
in
Tazwell
County outside East Peoria and, therefore, the decision of the City Council on criterion ix was
not supported
by
the evidence.
(Tr.
232).
In the interest of caution,
he
also
wanted to
ask the
City Council to consider adopting the conditions in the event there wasa reversal.
(Tr. 232). He
asked
the City staff to
put both of those
items
on the agenda, and
to
send notice
to
the parties.
(Tr. 233).
On Monday, April
28,
2003,
Mr. Heisten
wasin the Chicago areawhen he called the City
staff by
mobile
telephone
and
learned
that
the matters
were
on
the agenda but
separate
written
notices
had
not
been
sent
to
the parties
and
participants, including Rochelle Waste and the
CCOC.
(Tr.
233).
Mr.
Helsten wanted to be sure that the applicant and objectors had actual
11
70394222v1
829983
notice
of the meeting,
and,
therefore,
he
telephoned
the applicant’s
general
counsel
Mr.
John
Holmstrom.
(Tr.
234).
(Mr.
Heisten had
Mr. Holmstrom’s
phone number memorized, but
did
not
have
Mr.
O’Brien’s
phone
number
memorized).
(Tr.
234).
Mr.
Helsten
informed
Mr.
Holmstrom of the matters
that would be discussed at the City Council meeting that evening.
(Tr.
234).
Mr.
Helsten
informed
Mr.
Holmstrom,
“I’m
not
sure
that
the
City
Council
will
even
entertain
it
tonight.
They may entertain it,
they may
not.”
(Tr.
234-35).
Mr.
Heisten
told
Mr.
Holmstrom
that
it was possible that
the City Council will continue the matter
until
Wednesday
night in
light
of the
notice
issues.
(Tr.
235).
However, Mr.
Helsten
also
told Mr.
Holmstrom
that the council would have to
take action before May
1,
2003
as a new City Council, which did
not
hear the
siting application,
would
be
empaneled
at
that time.
(Tr.
235).
At no
time
did
Mr.
Helsten inform Mr. Holmstroni
that no
action would be taken on
April
28,
2003.
(Tr.
235).
To
the
contrary,
Mr.
Helsten
informed
him
that
he
was
going
in
front
of
the
City
Council
specifically to
put
the
issues
before the Council
and
whether they considered them
or not was
another matter.
(Tr.
235).
He then asked
Mr. Holmstrom
to
contact Mr.
O’Brien
(Tr.
235).
Mr.
Heisten
then provided
notice
to
the objectors’
counsel
as
well.
(Tr.
235-36).
The
applicant
attended the meeting through its
agent, Tom Hilbert.
(Tr.
236).
.1.
Testimony of Thomas Hubert
Mr. Hubert testified that hewas employed by the applicant.
(Tr. 244). He admitted that
he
attended the
April
28, 2003
City Council
meeting, wherein
criterion
ix
and the imposition of
conditions were discussed.
(Tr.
244).
III.
STATEMENT
OF FACTS
AS TO CRITERIA
A.
Criterion i
With respect to
criterion
i,
the
Applicant
provided
the
testimony
of Ms.
Smith.
Ms.
Smith
prepared
the
need
report
for
the
application,
and
she
concluded
that
the
facility
was
12
7O394222~’i829983
necessary to
meet
the waste needs of the service area.
(2/25/03
Tr.
34).
Ms.
Smith
based
her
conclusion on the following factors:
1) that the existing site is projected to be
depleted by
2006;
2) that
a
capacity
shortfall will
exist in
the
service
area;
3)
that
the expansion
will
create
an
additional 20
years of capacity
to Ogle
County, 4)
that alternate landfilJs will
be more
costly for
the City of Rochelle; and
5)
that
the expansion
will provide
economic benefits
to
Ogle
County.
Id.
Ms.
Smith
concluded that there would be
as much as
123
million tons
of waste
in the service
area that would need to be disposed of,
assuming a zero percent recycling rate.
(Id.
at
57).
On cross-examination, Ms.
Smith
admitted
that
she had
been paid $35,000
to
$40,000
to
prepare her needs
report
and
testify
on
behalf of the Applicant.
(2/25/03
Tr.
43).
She
also
admitted
that
out
of the
thirteen
needs
reports
she
has
prepared
for
landfills,
she
has
always
found that
a
need
existed.
(Id.
at
45).
Ms.
Smith
also
admitted
on
cross-examination that
a
nearby facility, Onyx,
had
capacity for an
additional
16
years
and
is
currently
receiving waste
from Ogle County.
(Id.
at 64).
Ms.
Smith’s
conclusion that
a
need existed was
also
based on
the premise that
landfill
capacity in
Illinois
is
decreasing, but
she admitted
that
landfill capacity in~RegionI, where Ogle
County is
located, actually increased
from 2001
to
2002.
(2/25/03
Tr.
68).
Her conclusion also
assumed that no
additional capacity would
become available to the service area, but she admitted
that
siting approval had been granted to
facilities
in the service area, including
a facilities in
Will
County
and
Streator
and
Bartlette
(Id.
at
72,
96-97, 98,
123).
Furthermore,
she admitted
that
Livingston
Landfill, which serves
approximately
55
of the proposed facility’s service area has
an
application for expansion pending, as does Kankakee.
(Id.
at
103,
126)~
In her testimony,
Ms.
Smith indicated that it is typically more expensive to transfer waste
out of a
county than rely on in-county disposal; however,
she admitted that
the proposed facility
13
7O394222v~829983
will
rely
on
approximately
80
of its
waste
coming
from
counties
other than
Ogle
county,
including
60
coming from
the
Chicago Metro area.
(2/25/03
Tr.
99-100). Ms.
Smith
testified
to
the fact that the proposed
facility would be beneficial economically
to Ogle
County and would
be good for competition.
(id.
at 76-78).
13.
Criterion
ii
Four witnesses testified regarding criterion ii, three on behalf of the applicant and one on
behalf of CCOC.
The
first
witness
to
testify
regarding criterion
ii
was
Mr.
Daniel
Zinnen,
a
licensed professional engineer
and
land surveyor.
(2/25/03
Tr.
132-33).
Mr.
Zinnen explained
that
he
believed the landfill was designed,
located
and
proposed
to
be
operated
to
protect
the
public
health
safety
and
welfare based on location standards, engineering and environmental
control systems, operating procedures, closure and post-closure plans and monitoring ofthe site.
(Id.
at
141-42).
Mr. Zinnen testified that the liner was engineered to protect the public health, safety and
welfare because the liner was designed to prevent leachate from leaking out of the landfill.
(2/25/03 Tr. 147). The liner to be installed on the site was to be a three foot liner constructed of
silt clay till
soil
underlying the site, ovcrlined by 60 mils HDPE membrane.
(Id.
at
147-48,
155).
Mr. Zinnen stated that althoughhe had experience with HDPE forapproximately 15 to 16 years,
he
did
not
know what the typical warranty
on
those
types
of liners
typically
was.
(Id.
atl99-
200).
Mr.
Zinnen
admitted
that
that
HDPE
can
be
compromised
by
certain
chemicals under
certain conditions.
(Id.
at 202-205).
After testifying about the liner system, Mr. Zinnen testified about the leachate collection
system beneath the bottom of the landfill.
(2/25/03 Tr.
162). The purpose of that system
is to
collect leachate percolated through the waste material inside the landfill.
(Id.
at 162-63).
The
liquid leachate from the collection system is sent to collection sumps, which are then pumped
14
7O394222~’I829983
into large
storage tanks
in the southwest corner of the
facility.
(Id.
at
164).
Mr. Zinnen testified
that the leachate collection pipe
is surrounded by a granular layer and then wrapped
in
a
geotextile, which Mr. Zinnen admitted
could become
clogged.
(Id.
at 210-11).
Despite such
anticipated
clogging,
Mr.
Zinnen
did
not
determine
if
the
geotextile
could
be
effectively
unclogged and there wasnothing in place to monitor the percentage of clogging in any particular
location at
any given
time.
(Id.
at 211-212). Mr. Zinnen admitted
that
the same would
be
true of
the geotextile proposed to be installed in the final cover,
(Id.
at 215).
Mr. Zinnen testified that
the
leachate
collection
holding tank will
hold
126,000
gallons of leachate,
which
Mr.
Zinnen
testified
was
more
than
adequate, but
he
admitted
that
he
did
not
know
the
current
leachate
production
at the facility and his calculations did not take into account leachate from cover
runoff.
(Id.
at 219-23).
Mr. Zinnen next testified regarding the final cover system.
(2/25/03
Tr.
168).
According
to
Mr.
Zinnen,
the purpose
of that
system
is
to
keep water
from
seeping into the landfill
and
keeping leachates
from
escaping from the
top of the
landfill.
(Id.)
The cover consists
a of one
foot thick
compacted soil
liner and
a 40
mil
LLPDE membrane.
(Id.
at 169-70). On top of the
membrane
is
a one
foot
sand drainage
blanket and
perforated tile
pipes
that collect water.
(Id.
at
170).
Mr. Zinnen also testified that the site is equipped with a gas management system that
works
in conjunction with the final cover and bottom liner systems and is designed to prevent the
release oflandfill gas.
(2/25/03
Tr.
171-72).
The main components ofthe landfill gas system are
a series of extraction wells in
the disposal
unit itself.
(Id.
at 172).
Mr.
Zinnen also testified that
the landfill is
equipped with
a storm water management system.
(Id.
at 173-74).
15
70394222v1 829983
Mr.
Zinnen
also
provided
testimony
regarding the operating
plan
and
the post-closure
care plan.
(2/25/03 Tr.
178.82).
Specifically, he
explained
that
the facility has a litter
control
plan,
dust
control plan
and
noise
control plan.
(Id.
at
178).
He also
testified that
the
hours of
operation
for the facility were proposed to be 4:30 am,
to
7 p.m.
on
weekdays
and 4:30 am. to
12:00 p.m.
on
Saturdays.
(Id.
at
178-89).
After providing his testimony,
Mr. Zinnen concluded
that criterion ii was met based on all ofthe features he described.
(Id.
at
182-83).
On cross-examination, Mr. Zinnen admitted that waste located on the site would settle
and compact, but he
did not know what
amount of deformation the recompacted clay in the final
cover
could withstand before
it cracked.
(2/25/03 Tr. 228).
Mr. Zinnen also admitted that the
model
he
used
improperly
calculated the
slope
for the
final
cover because Mr. Zinnen
used
a
33
figure for the
slope ofthe cover
even
though no
part of the cover has
a
33
slope.
(Id.
at
231-33).
Modeling the cover at the appropriate slope
increased the depth ofwater sitting on top
of the
final cover
and
increase
the amount
of leakage
into the landfill.
(Id.
at 291).
Although
Mr.
Ziimen
did
create
a
new model
using
a
25
slope
instead of the
33
slope, Mr. Zinnen
admitted
that
only
a
fraction of the facility would be
at a
25
slope.
(2/26/03
Tr.
185).
Using
the
minimum design
slope
for the
facility,
which
is
6,
resulted
in
4.6
times
as
much
water
percolating through
the drainage layer.
(Id.
at
186).
Mr.
Zinnen explained
that
the landfill
design
calls for
exhumation of Unit
1;
however,
Mr.
Zinnen
admitted
that
the
vertical
extent
of leachate
seepage into
the
underlying
soils
is
unknown
and
that
there
is
no
method
identified in
the application
for determining whether
soil
below
the
unit has
been impacted
by
leachate.
(2/25/03
Tr.
244).
Furthermore, Mr.
Zinnen
testified that his conclusion that criterion
ii
was met was based on
the exhumation of Unit
1.
(Id.
at 267).
However, the IEPA has to provide a permit before
that exhumation can take place.
(Id.)
16
70394222v1
829983
Mr. Zinnen agreed that his opinion that the facility is designed to protect the public
health, safety
and
welfare
is
reliant
on
the
functioning
of
the
groundwater
monitoring
system
in
detecting
leaks.
(Id.
at 212).
The next witness
to
testify regarding criterion ii was
Clyde
Gelderloos,
who is the owner
of Rochelle Disposal
Service.
(2/26/03 Tr.
9).
He testified regarding the operating
plan of the
facility.
(Id.
at
36).
He testified that
the facility has
a
litter control program
and
order control
plan.
(id),
He also testified that the current facility was equipped with
a water wagon to
control
dust, which would be increased, and
a sweeper would be used to help control dust as well.
(Id.
at
37-38).
He stated that
there would not be
a problem with
vectors because rodents
“don’t do well
in modern landfills” and because birds would be controlled
by
the
daily
cover.
(Id.
at
38).
According
to
Mr.
Gelderloos,
the vegetation along
Mulford Road
serves
as the
facility’s
noise
control plan.
(id.
at 39).
The hours of operation of the current facility are 6:00 am.
to 4:00 p.m.
on weekdays,
and
11:00
a.m. to
3:30 p.m. on
Saturdays, but the new facility
is requesting to
have
hours
of
operation
from
4:30
ant
to
7:00
p.m.
weekdays
and
4:30
am.
to
3:00
p.m.
on
Saturdays.
(Id.
at
39-40).
Mr.
Gelderloos has
closed
the
current facility
due
to
inclement
weather in the past, but there are no formal guidelines
for doing so.
(Id.
at
55).
According to Mr. Gelderloos, the facility
also
has two
types of load checking
programs,
an accident prevention plan and a spill control plan.
(2/26/03 Tr. 40-41).
Based on the load
checking program, less than a dozen loads havebeen turned away because ofimproper contents.
(Id.
at 46).
The only safety equipment required of employees are safety toe boots, hard hats
and
safety glasses.
(Id.
at
42).
Mr. Gelderloos testified that
there
are
fire
extinguishers and
fire-
suppressing materials on the site.
(Id.
at 42-43). He also testified that the current facility
has
experienced a
fire in the past.
(Id.
at
43).
According
to
the
facility’s
spill control plan, when a
17
70394222v1 829983
spill occurs, the area where the spill occurred should be immediately roped off.
(Id,
at 43).
Mr.
Geldcrloos concluded that the facility was proposed to be operated so that the public health,
safety
and welfare would
be protected.
(Id.
at 44).
During
his
testimony,
Mr.
Gelderloos
admitted
that
the
Rochelle
facility
had
many
violations or deficiencies in its past.
(2/26/03 Tr.
23). Many of those incidents related to blowing
litter
and
an
inadequate daily
cover.
(Id.
at
26).
Mr.
Gelderloos
also
testified
about
other
operating
problems
that
had
occurred,
including
repeated
failures to cover exhumed waste,
leachate
spills
and
seepages,
receiving
unpermitted
solids and having waste in standing water
(Id.
at
52-53, 64-67).
Based
on
environmental
deficiencies
occurring while
Mr. Gelderloos was
running the
facility, Mr. Gelderloos received several administrative citations and was required to
pay fines.
(Id.
at 67-68).
The next witness
to
testify regarding criterion
ii
was Steven
Stanford,
a
hydrogeologist.
(3/3/04
Tr.
56).
Mr.
Stanford
testified
that
a
hydrogeologic
investigation
is
necessary
for
a
landfill
in
order
to
assess
the
performance
of the
proposed
landfill
with
regard
to
potential
impacts
on
groundwater
quality.
(Id.
at
59).
Based on his hydrogeologic investigation, Mr.
Stanford
concluded
that
the
site
was
good
for
a
proposed
landfill
and
stated
that
the
site
characterization of
the facility was themost extensivehe had everseen for a landfill.
(Id.
at
79-
81).
On
cross-examination, Mr.
Stanford
admitted
that
he
has only
been the
lead
geologist on
one other landfill.
(Id.
at 140-41).
Mr.
Stanford
reached
the
conclusion
that
the
facility
is
located
to
protect
the
public
health,
safety
and welfare
from
a geologic
and hydrogeologic standpoint because: 1) the site
is
underlined
by
thick
and
continuous depositions
in
the
Tiskilwa
formation,
which
serves
as
an
aquitard
and
separates
the
based
of the
landfill
and
the
top
of the
uppermost
aquifer,
2)
the
18
70394222v1
829983
uppermost aquifer is
separated
from the sandstone aquifer by the
lower dolomite
aquitard
or the
fine grain
fills
in
the
valley,
3)
the development of the landfill
will
reduce the already low rates
of vertical recharge
and
further slow the rates of groundwater movement,
and
4) the
landfill
is
separated
form the sandstone aquifer by
several confining units, which can be monitored before
potential releases reach the sandstone aquifer.
(3/3/03 Tr.
1t6-17).
Mr.
Stanford performed a groundwater
impact assessment on
the site, in
which
he
stated
he
used
“conservative
assumptions.
(3/3/03
Tr.
118,
120-24).
Based
on
that
assessment,
Mr.
Stanford found no
impact
on
the groundwater 100
feet from
the waste boundary
100
years
after
closure
of the facility.
(Id.
at
124-35).
Mr.
Stanford
also performed
a
sensitivity
analysis
and
found that
all
of the water-bearing
units
will comply
with
the required
groundwater protection
standards.
(Id.
at
127).
Next,
Mr. Stanford explained the groundwater monitoring plan, which is
designed
to
have
monitoring
and
opinioned
that
the
proposed
groundwater
monitoring
plan
would provide for reliable protection of potential
releases from
the proposed expansion.
(Id.
at
13 0-3 1).
On cross-examination, Mr. Stanford
admitted that he had previously only
testified at
one
siting hearing and has only
been the responsible geologist for one other landfill.
(3/3/03
Tr.
140-
41).
He also
admitted that
he
had only
performed three groundwater impact assessments
on his
own.
(Id.
at 242-43).
He also
admitted that
in performing his
groundwater impact assessment,
he
assumed
only
two
pinhole
defects
in
the HDPE
per acre,
even though Mr.
Zinnen assumed
twice
as many
in
his model.
(Id.
at
150).
Mr.
Stanford
admitted that changing the inputs
to the
groundwater impact
model changes the results.
(Id.
at
151).
Mr.
Stanford
also
admitted that he
did
not
consider
any
leaks
in
the
clay
liner
when
he
performed
the
groundwater
impact
assessment,
(Id.
at
151).
Furthermore, Mr.
Stanford
admitted
that
he
did
not
determine
the
19
70394222vt
829983
permeability of the Tiskilwa layer through which the contaminants would move but instead
simply assumed that contaminants would move at the same speed as they did in the liner system.
(Id.
at
152-53).
In performing
his
groundwater
impact
analysis,
Mr.
Stanford
admitted
that
he
did
not
take
into account
an
initial
concentration
of a measured constituent as a
background
level
and
instead
assumed
all
concentrations
to
be
zero.
(3/3/03
Tr.
154-55).
Factoring
in
the
actual
background
level
of ammonia,
instead
of
assuming
a
zero
concentration
level,
resulted
in
a
concentration
level of ammonia higher than
what
is
allowable based
on
applicable groundwater
quality
standards.
(Id.
at
154).
Mr.
Stanford
admitted
that
he
was
not
familiar
with
the
details
of the
leachate
wells
located
in
Unit
I
even
though those
wells
could be
relevant to
the conditions
and configurations
of that
unit.
(3/3/03
Tr.
197-98).
Mr.
Stanford
also
admitted that
he
did
not
know
the
actual
potentiometric surface
of flow direction at
the site below
the upper portions of the
site.
(Id.
at
198-99).
Because
the
data
was
insufficient
to
determine
the
flow
in
the
St.
Peter
layer,
a
potentiometric surface
map could not be created.
(Id.
at
199).
Despite Mr.
Stanfords opinion
that the movement of contaminants was
only a fraction of
an
inch per
year,
he
agreed that
a
well
located
approximately
100
feet
away
from
the waste
boundary may have been impacted by
leachate withdrawals in Unit
1.
(3/3/03
Tr.
229).
In fact,
that well was found to
be full of methane, which Mr. Stanford concluded
could
only reasonably
come from Unit
1.
(Id.)
The
final
witness
to
testify
regarding
criterion
ii was
Charles Norris, who
testified
on
behalf of CCOC.
Mr.
Norris
is
a licensed professional geologist,
who has worked
in
the area of
geology
for 30
years
and
specializes
in
hydrogeology.
(3/4/03
Tr.
36,
39).
Mr.
Norris
has
20
70394222v1
829983
bachelor’s
and
master’s
degrees
in
geology
and
has
completed
all
of
the
requirements
for
a
doctorate except
for his
dissertation.
(Id.
at
39).
He
is
a
member of a
number of professional
associations,
including the National Groundwater Association and
the
Illinois Groundwater
Association.
(Id)
Mr.
Norris
has a great deal of experience in reviewing landfill applications
and has reviewed approximately eleven of them.
(Id.
at 41-42).
Mr.
Norris
readily
admitted
that
he
has not
specifically
used
the
‘Migrate”
model
to
model groundwater impact; however, he has worked with analogous programs and has worked
with
computer
modeling
for many
years.
(3/4/03
Tr,
40-41).
He
has used
the “Help’
model,
which was
also
used by the Applicant to model
the site.
(Id.
at 41).
Based on
his
review of the
Applicant’s
groundwater
model,
he
concluded
that
“the
calculations
made
in
the
GIA
demonstrate that this facility built on this site in this geologic
and hydrogeologic
setting will not
always
meet
the performance
criteria.”
(Id.
at
55).
He
found this
to
be
the
case because
the
amount
of ammonia
in
the intra-well
till
sand
aquifer will
exceed
the applicable
groundwater
quality
standards
when the background
concentration
is
calculated into the
final
concentration.
(Id.
at
56).
Mr.
Norris found that it was necessary to
include the background concentration
for
ammonia into
the model to achieve the correct final concentration ofthat substance.
(Id.)
Mr.
Norris
also
found that
the
groundwater impact model was inappropriate because
it
did not fully incorporate site-specific data regarding stratigraphy and gradients.
(3/4/03 Tr.
59).
According to Mr. Norris, instead of using the actual permeabilities contained in the zones below
the
site, the Applicant
simply substituted
a
flow number that
he calculated representing leakage
fromthe bottom ofthe landfill and assumed water would continue to move down at the same rate
through
the
entire
system.
(Id.
at
60).
Mr.
Norris
explained
that
it
was
necessary
for
the
Applicant
to
model
the
site
using
a
three-dimensional
groundwater
model
to
determine
the
21
70394222v1
829983
magnitude ofrecharge and what flow conditions will exist after the site is in place.
(Id.
at
65-66).
Because of its deficiencies, Mr. Norris concluded that
the groundwater impact model assessment
did not accuratelymodel the existing site conditions.
(Id.
at 66).
Mr.
Norris
also
disagreed with
Mr.
Stanford
that
the Tiskilwa till
was an
impermeable
layer because he
found groundwater contained in
an interceptor trench on the facility as well as a
monitoring well
in Unit
1, were impacted by
contaminants.
(3/4/03 Tr.
70-71,
74).
According to
Mr.
Stanford,
the
fact
that
there
were
impacts
in
the
interceptor
trench
and
monitoring
well
establishes that the Tiskilwa
till
was improperly characterized
in
the Applicant.
(Id.
at 77).
In
fact,
Mr.
Norris
disagreed
with
the
Applicant’s
characterization of the Tiskilwa
till
as being
a
major geologic
component
that
enhances the protection
of the public
health,
safety
and
welfare
because
the
Tiskilwa
is
not
capable
of retarding
the
flow
to
the
extent
that
the
Applicant
suggested.
(Id.
at
77-78).
Mr.
Norris also
explained
that the flow system
under the site is much more complex than
the Applicant
appreciated and required more investigation.
(3/4/03
Tr.
85-86).
Specifically, Mr.
Norris concluded that the
flow systems were
more interconnected that the Application showed in
terms of vertical flow and efficiency ofvertical connections.
(Id.
at
90).
He also
concluded that
it was
inappropriate
for
the
Applicant
to
use an
average
vertical
gradient
for
the site because
multiple changing gradients actually exist.
(Id.
at 90-92).
According to
Mr. Norris, the presence
of the changing gradients establishes that the conceptual model
and interpretation ofthe geology
and
hydrogeology
contained
in
the
application
is
“absolutely
contradicted.”
(Id.
at
92-93).
Based
on the actual hydrogeology of the site,
Mr.
Norris concluded
that travel
times
through
the
Tiskilwa till
are much quicker than Mr.
Stanford calculated.
(Id.
at
153).
22
70394222v1
829983
Mr. Norris also suggested
that the modeling performed by the Mr. Stanford was not
conservative,
in
part because the
sand lens
was
modeled
as being continuous.
(3/4/03
Tr.
211).
Mr.
Norris also
had problems with the data set at the site and cross sections, potentiometric and
contour
maps
because he
thought they contained
inaccurate
information.
(Id.
at 98-102).
He
further
found other irregularities
and
problems with the Application, including
its omission of
important
leachate
levels.
(Id.
at
103-Il).
Mr.
Norris
explained that while some of those data
irregularities were not very significant,
others were critical
and presented an
inaccurate picture of
the site.
(Id.
at
112).
Finally, Mr.
Norris concluded that the monitoring program proposed by the
Applicant
does
not
adequately
monitor
potential
escapes
of contaminants
from
the
proposed
facility.
(Id.
at
113).
C.
Criterion
iii
With respect
to
criterion
iii,
two
witnesses
testified, both
in
support of the Application.
The
first
witness
to
testify
was
Christopher
Lannert,
a
landscape
architect
and
urban
planner.
(2/24/03
Tr.
65).
Mr.
Lannert
concluded
that
the
proposed
facility
is
compatible
with
the
character of the surrounding area because:
1) more than 80
of the surrounding land use is either
agricultural or open
space,
2) the nearest residential unit is
over 520
feet from
the boundaries of
the
site, 3) the railroad
to
the
north
and surrounding roadways provide setback and buffer,
4) the
is
located
in
the
1-2
district,
which
allows
landfills
as
a
special
use;
and
5)
the
facility
is
adequately screened.
(Id.
at
84-85).
One of the
screens
Mr.
Lannert
relied
upon
to
reach his
conclusion that the facility was compatible
with the surrounding area was a screen
on the east of
the
site,
which
is
planned
to
be
constructed
on
land
that
is
not
owned
or
controlled
by
the
Applicant.
(Id.
at
110-12).
On
cross-examination,
Mr.
Lannert
admitted
that
out
of
35
landfill
siting
hearings
in
which
he
has testified,
in
34 ofthose
hearings, he has testified
that
the facility was compatible
23
70394222v1
829983
with
the surrounding
area.
(2/24/03
Tr.
86).
He
also
admitted
that
he
was
hoping
to
do
the
landscaping for the site if it was sited.
(Id.
at 97-98).
Mr. Lannert also admitted that while the while the area immediately surrounding the site
is industrial and
open land, approximately
100 residential properties within a
mile of the facility,
which was the distance that he used to examine the compatibility ofthe landfill.
(2/24/03
Tr. 93,
101).
Mr.
Lannert
provided
photos
to
the
City
Council
depicting
what
the
proposed
facility
would
look
like
after
development,
but
he
admitted
that
he
did
not
provide
photos
from
the
backyards
of any
homes
within a
mile
of the facility
and
did
not provide
a
photo
to
the
City
Council
from
the home nearest the landfill.
(Id.
at 88, 92, 94).
Next,
Peter Poletti
testified
on behalf of the Applicant
regarding criterion iii.
Mr.
Poletti
is
a
real
estate
appraiser.
(2/24/03
Tr.
120).
Mr.
Poletti
concluded
that
the
facility was
so
located to minimize any effect on the value of surrounding property.
(Id.
at
144).
In determining
whether there was a negative effect on the value ofsurrounding property, Mr.
Poletti created
two
groups
of properties,
a
target
group,
consisting of homes
located
within
a
one
and
a
half mile
radius
from
the
site,
including
those
located
in
the
Village
of
Creston,
and
a
control
group,
consisting of homes,
located
beyond
one
and
a half miles, including
homes
mainly in
Rochelle.
(Id.
at
128-29).
Thereafter,
Mr.
Polctti
excluded
many
various
properties,
including
older
homes,
homes
on
large lots,
outlots,
bi-levels,
tn-levels
and
split-levels,
and
was
left
with
10
sales in the target area and
80
sales in the control area.
(Id.
at
134-36).
After performing further
analysis
and
removing two
more properties
from
the
target
area based
on
their size,
Mr.
Poletti
concluded that price per square foot
in
the
target
area was
$77.19,
and
the price per
square foot
in the target area was $78.59 per
square foot.
(Id.
at 137-38). Based on those prices, Mr. Poletti
concluded that there “was no statistical
difference between those
two
averages.”
(Id.
at
138).
24
70394222v1
829983
Mr.
Poletti
admitted
that
he
did
not
examine the
lot
sizes
to
determine if that
made a
difference
in
the analysis.
(2/24/03
Tn.
161).
Mr.
Poletti
also
did
not perform
any
studies or
research regarding what percentage of their asking price homeowners received in the control area
versus the target area.
(Id.
at
158).
Mr. Poletti also performed an appreciation rate analysis comparing the target group and
control
group properties.
(2/24/03
Tr.
132).
Using
the
prices
from 27
properties
in
the control
group
and
4
properties
in
the
target
group,
Mr.
Poletti
found
that
the
control
group
houses
appreciated
at
a nate of 4.2,
and
the target group houses appreciated
at a 7.2
rate.
(Id.).
On
cross-examination, Mr.
Poletti
admitted that because the study
analyzed so few properties
in the
target group, no real conclusion could be drawn from that
study.
(Id.
at
167).
On cross-examination, Mr.
Poletti admitted that out ofthe twenty to twenty-five
times, he
has testified in
a landfill siting
hearing,
he has always
found that
a facility is
located to
minimize
the effect
on
the value of the surrounding property.
(2/24/03 Tr.
146),
Mr.
Poletti
stated that
he
did not believe that
the vast
expansion of the facility would
adversely affect
property values
and
cited
Livingston Landfill as an example of a large facility where property values had not dropped
significantly, but he admitted that therewas not a
village the size ofCreston in close proximity to
Livingston Landfill.
(Id.
at
164-65).
Mr.
Poletti
further admitted that
the house sale prices
in
Creston,
which
is
very
near the
landfill,
are
lower
than
houses
farther from
the landfill
even though
Creston
residents
have a
higher income.
(2/24/03
Tn.
152,
158).
Mr.
Poletti provided possible reasons for the low prices
aside from the location ofthe landfill, but he did not conduct any studies or perform
any research
to determine why that was the case.
(Id.
at
153-58).
25
70394222v1
829983
Based
on
appreciation
statistics,
Mr.
Poletti
agreed that the
two
most
recent sales
in
the
target area had the lowest rate ofappreciation.
(2/24/03
Tr.
167).
He also admitted that
a
review
of the
appreciation
rates of the homes
in
the
target
area revealed
that
each
sale had
a
lower
appreciation than the last.
(Id.
at
168-69).
Furthermore,
he
admitted that
target
area sale prices
for houses
sold
since
the
first application
for expansion was filed were
significantly
lower
than
the average.
(Id.
at
172).
D.
Criterion vi
The only
witness
to
testify
regarding
criterion
vi
was Michael
Werthman,
a
traffic
and
transportation
engineer.
(2/24/03
Tr.
182).
Mr.
Werthman concluded that
the traffic
patterns to
and
from
the facility have been designed
to
minimize
the impact
on
the
existing
traffic
flows.
(Id.
at 211).
Mr. Werthman admitted that his
conclusion was based
on
an
assumption that
there
would be a widening and improvement of Mulford Road and
38, allowing for a left turn and right
turn
lane,
which was planned by the IDOT but
not yet existing at the
time of the siting hearing.
(Id.
at 248).
Mr.
Werthman
explained
that
he
reached
his
conclusion
based
on
a
traffic
study
he
performed
in
which he
analyzed traffic
based on
the
facility taking
3,500
tons ofgarbage
each
day.
(2/24/03
Tr.
199,
220).
Based on
its
receipt of
3,500
tons of garbage each
day, the landfill
would
generate
221
inbound
trips
and
221
outbound
trips,
including
19
to
25
outbound
and
inbound trips each during the morning and evening peak hours.
(Id.
at 199-200).
Mr. Werthman
admitted
that he
relied on
the applicant to
supply him
with information regarding the number of
trucks
exiting
and
leaving
the
facility,
the
traffic
patterns
of
those
trucks,
the
number
of
employees
working
at
the proposed
facility
and
the
peak
hour
distribution
of
traffic
to
the
facility.
(Id.
at 223-25, 244).
26
70394222v1
829983
Mr. Werthman also admitted that he did not consider construction traffic on the site even
though there will be additional truck
traffic due to construction.
(2/24/03 Tr. 225-26, 250). Mr.
Werthman admitted that he did not know if any of his studies were done in snowy or rainy
conditions
even though he is aware that
traffic conditions
usually degrade with
snow and/or rain.
(Id.
at 215).
He
also
admitted that
he did
not
specifically calculate
additional
truck traffic that
will result from the intermodal facility that is being developed in Rochelle.
(Id.
at 216-17).
Mr. Werthman explained that the worst movement oftraffic currently at the intersection
ofRoute 38 and Mulford is currently graded a “C” for level of service, but when thenew facility
is added, the intersections will be operating
at a D
level of service, which
is the lowest
acceptable grade
in the industry.
(2/24/03
‘Fr. 240-42).
Mr. Werthman admitted that a lower
level of service generally means that drivers will have to wait longer at the intersection.
(Id.
at
242-43).
E.
Criterion ix
The City Council concedes that its decision with respect to criterion ix was against the
manifest weight of the evidence because the testimony established that the proposed facility
would not be located in a regulated recharge area.
(2/25/03 Tr. 133).
The City Council found
that this criterion had not been met, likely because
it was confused by the testimony of Ms.
Stanford, who testified about “recharge areas” and, therefore, thought that criterion ix applied.
(3/3/03
‘Fr. 108-09, 145).
However, because it is clear that criterion ix does not apply, the City
Council concedes that its decision with respect to criterion ix was against the manifest weight of
the evidence.
27
70394222v1 829983
IV.
ARGUMENT
A.
The Siting Process
Was Fundamentally Fair
Section 40.1
provides
that if the County Board refuses to
grant
siting approval, an
applicant
may
file
an
appeal
with
the
Illinois
Pollution
Control
Board
(IPCB)
wherein
the
applicant is the petitioner, and the City Council is the respondent.
415 ILCS 5/40.1(a) (2002).
At
such hearing, “the burden of proof shall be
on
the petitioner”.
Id.
The
IPCB shall consider
“the fundamental fairness of the procedures used by the.
.
.municipality
in reaching its
decision.”
Id.
However,
landfill siting
proceedings are not
entitled
to
the
same procedural safeguards as
adjudicatory proceedings.
Southwest Energy
v.
Pollution Control
Board,
275
IlLApp.3d 84, 92,
655
N.E.2d 304, 309 (4th Dist. 1995).
The
basis
of the applicant’s
fundamental
fairness
claims
merely
revolve
around
public
opposition
to the landfill.
Specifically, the applicant argues that this
public
opposition led
to the
City
Council
basing
its
decision
on
“political
considerations
rather
than
the
evidence”.
Similarly, the
applicant argues
that
the
public
opposition
amounted
to
“inappropriate
cx pane
communications
between
council
members
and
opponents
of the
application”.
(Petitioner’s
Brief, p. 2-3).
The leading
case
on
communications
between
a
decision-maker
and
a
party
to
a
siting
hearing
is
E&E Hauling
v.
Pollution
Control Board,
116
Ill.App.3d
586,
607,
451
N.E.2d
555,
571
(2nd Dist.
1983),
aff’d.,
107
Ill.2d
33,
481
N.E.2d 664
(1985).
In
E&E Hauling,
after
a
Section
39.2
hearing
was
held,
but
before
the
County
approved
the
application,
numerous
meetings tookplace between the County Board members and the applicant to negotiate
terms of
an
application.
The Appellate
Court held that these communications were
exparte,
however,
it
affirmed
the
County
Board’s
decision
approving
the
application
as
there
was
insufficient
28
70394222v1
829983
evidence that prejudice resulted from those contacts.
116 1ll.App.3d at 607, 451 N.E.2d at
572.
E&E Hauling
held that the issue
is:
.whether,
as
a
result
of
improper
cx
pane
communications,
the
agency’s
decision making process was
irrevocably
tainted so
as
to make the ultimate
judgment of the agency unfair, either to an innocent party or to the public interest
that the agency was obliged
to protect.
In making this
determination, a number of
considerations may be relevant: 1
the gravity ofthe
exparte
communication;
2
whether
the
contacts
may
have
influenced
the
agency’s
ultimate
decision;
3
whether the
party
making
the
improper
contacts
benefited
from
the
agency’s
ultimate decision; 4
whether the contents of the communications were unknown
to
the opposing
parties,
who,
therefore
had
no
opportunity
to
respond;
and
5
whether vacation ofthe agency’s decision and remand for new proceedings would
serve
a useful purpose..
.
.A
court will not reverse
an
agency’s decision because of
improper exparte contacts without a showing that the complaining panty suffered
prejudice from
these contacts.
Id.
(emphasis added).
The Second
District, where
this
case
resides,
addressed the
issue
of communications by
members of the public with the decision-maker and held that “a court will not reverse an
agency’s decision because of
exparte
contacts to members of that agency absent a showing that
prejudice
to
the complaining party resulted from these
contacts.”
Waste Management of Illinois
v.
PCB,
175 lll.App.3d 1023, 1043, 530 N,E.2d 682, 697 (2d Dist. 1980).
That Court explicitly
held:
The
various
telephone
calls,
letters,
and
personal
contacts
were
merely
expressions of public sentiment to County Board members on the issue ofWaste
Management’s
landfill
application.
Moreover,
existence
of
strong
public
opposition
does
not
render
a
hearing
fundamentally
unfair,
where
as
here,
the
hearing committee provides a full and complete opportunity to offer evidence in
support
of its
application.
(Citation omitted).
Further,
cx parte
communications
from the public to
their elected representatives are perhaps
inevitable, given a
County Board’s perceived legislative position, albeit in these circumstances, they
act
in
an
adjudicative role.
Thus,
although
personal
éx pane
communications to
County
Board members
in
their adjudicative
role
are improper,
there must
be
a
showing that the complaining party suffered prejudice from these contacts.
There
is no showing of prejudice here,
particularly
in
light of the extensive record
developed during the local hearing.
Id.
at 697-698.
29
70394222v1
829983
In
a
case
considering
the
denial
of a
siting
application
in
which
there
was
alleged
pervasive and hostile public opposition to site a landfill, the Second District held:
It
is
true
that
the tone
of these contacts
was
adverse to
the
granting of the
site
application.
However,
the
existence
of
strong
public
opposition
does
not
invalidate the
County
Board’s decision where
the applicant was given an
ample
opportunity to present
its case and where the applicant has not demonstrated
theCountyj
Board’s denial was based upon the public opposition rather than the
record.
City
ofRockford v.
County of Winnebago,
186
Ill.App.3d 303,
542
N.E.2d
423,
431
(2d
Dist.
1989).
1.
The Applicant was given
ample opportunity to present its
case.
The
City of Rockford
and
Waste Management
cases make it clear that the primary issue in
determining whether the proceedings were fundamentally fair is whether an applicant has been
given
ample
opportunity
to
present
its
case.
The
application
itself was
eight
volumes and
over
6,000 pages.
After
the application
was
filed, there was
a
five day
hearing
in
front of the
City
Council
which
resulted
in
1350
pages
of testimony.
The
City
Council
hired
an
independent
hearing officer
to preside
over
the hearing (Mr.
Glen Sechen).
The City Council
staff also hired
engineering
and
environmental
law
consultants
to
review
the application
and
participate
in
the
hearing.
The public,
and
the Applicant,
then
had
30
days to
provide
additional
written material
as public comment.
The Applicant submitted
a 116 page closing argument and proposed
findings
to
the City Council,
and
the objectors
submitted
a
similar
brief.
The City
staff also
prepared a written report as did the hearing officer who made recommendations and proposed
findings.
All of this information was made available to the City Council for review.
Obviously
the applicant was provided every opportunity to present its case, and it has offered no evidence
to the contrary.
30
70394222v1
829983
2.
The decision was
based on the record.
It is clear that the decision was based on
the record rather than public
opposition.
City of
Rockford,
542 N.E.2d at
431.
Each and
every City Council member that voted against a criterion
testified at
the
IPCB
hearing that
he
did
not
consider
any
communication
from
outside of the
hearing process
to
be evidence.
The
City of Rockford,
Waste Management,
and
E&E Hauling
cases establish that if a decision is derived from the evidence in the record, the communications
from
the public
to
the
City
Council
are
not
prejudicial,
and
remand would
serve
no
purpose.
Each
and
every
City
Council
member
testified
that
the very
few
unsolicited
statements
they
heard
from
members of the public,
including
the
form
letters
which
were
sent
to
the Council
members, were no different than the evidence
and
public
comments
that
were
admitted during
the Section 39.2 hearing. Furthermore, Mr. Colwill testified thathe filed some form letters in the
record.
All of the City Council members
testified they did
not
see
the “Touched By
An Angel”
videotape, which
is
so ridiculously and
heavily
relied
upon by
the Applicant.
Furthermore, the
Bradenton Herald article, which was given to Mr. Bubik by Mr. Roegland, was filed with the
City Clerk on
March
28, 2003 and, thus, was part of the public
record.
Therefore,
it
was
obviously appropriate for the City Council members to review the article.
The applicant’s
only
argument that the decision was based upon something other than the
record
are
some
statements made in
a newspaper
article after the vote was taken by
Mr.
Kissick
and Mr.
Bubik that
indicated the City Council decision was consistent with the public’s opinion.
Mr. Kissick explained that the
statements he
made in
the newspaper article were
only to
indicate
that he kept an open mind when considering the evidence.
Furthermore, Mr. Bubik explained
that the public opposition
to
the landfill was voiced during the hearing.
Obviously, the applicant
was
well
aware
of the
public
opposition
that
was
voiced
during
the
hearing
and
had
every
31
70394222v1
829983
opportunity
to
present evidence and
testimony to rebut
that public
opposition.
Furthermore,
the
public opposition that was voiced during the hearing was often grounded upon concerns over
need,
safety,
compatibility,
and
traffic,
which
are the
very
criteria that
the
City Council
found
were
not met.
(C6166-6652,
2/24/03
Tr.
251-740;
2/26/03
Tr.
5-7,
156-63;
3/3/03
Tr.
5-17,
170-
85,
263-267;
3/4/03 Tr.
5-30,
162-73, 244-308).
Therefore,
the record is absolutely
clear that the
City Council decision was based on the record.
3.
The Applicant has not met its
Burden
Showing “Irrevocable Taint” using
the
E&E Hauling
Factors.
Like the
City ofRockford
case,
E&E Hauling
establishes that
there must be evidence that
the alleged
cx pane
communications prejudiced
the City Council decision (in other words the
decision was based upon the communications rather than the record).
E&E
Hauling,
116
Jll.App.3d at 607.
The
E&E Hauling
factors
were
specifically designed
to
consider a variety of
fairness
principles.
Even
the
applicant
acknowledges
that
“the
five part
test
is
a
reasonable
outline of factors to be considered”.
(Petitioner’s Brief,
IS).
The
applicant
argues
that
somehow
the
E&E
Hauling
factors
were
not
applied
appropriately by
the courts
and
the
PCB
in
E&E
Hauling itself and
in
cases
such as
Land
and
Lakes Company
v.
Randolph County Board of Commissioners,
PCB 99-69 (2000), which
found
no
evidence of prejudice.
Undoubtedly,
the applicant is
seeking
to
distinguish
Land and Lakes
Company
because the nature of the
contacts
from
the public
were
much more pervasive
in
that
case,
and
yet the
IPCB
came
to
the conclusion that there was insufficient
evidence ofprejudice.
Specifically,
in
Randolph
County,
of which
the undersigned counsel represented the County, the
IPCB
found that
County
Board
members were
subjected
to
numerous
contacts
outside
of the
proceedings.
Id.
at
Slip.
Op.
23.
In
Randolph
County
there
were
only
three
County
Board
members who
voted
on the
application,
and
one of those
three received several
telephone calls
32
70394222v1
829983
about the hearing (including telephone calls from
the vice-president of a citizens
group opposed
to
the application)
to
the point where
he
placed
a
“trap and
trace”
on
Ins
phone line.
He also
received several written comments regarding the landfill and was approached in person about the
landfill and
told that
it
would not be good
for his business if the landfill were
sited.
He received
threatening telephone calls, and
his
business’
construction equipment was vandalized.
He even
received
a
package in the
mail
full of garbage.
He was
also the target of various pranks related
to
the
landfill.
Id.
Despite
the
fact
that
the
County
Board
member
had
received
numerous
telephone
calls,
threats,
vandalism,
and
pranks,
the
Board
found
that
there
was
insufficient
evidence
of
prejudice
because
the
record
was
clear
that
these
communications
were
not
considered to
be evidence.
Id.5
a.
The
communications by the public were not grave.
Communication
to
a member of a
decision-making
body,
which
relates
to
non-
substantive matters
and
does not
discuss the merits of the
case,
is not
grave.
Gallatin
National
Bank
v.
Pu/ton
County,
PCB
91-256
(June
15,
1992).
In
this
case,
the
Applicant
makes
an
unsupported conclusion that “With respect to the ‘gravity’ of the communication,
it
is
certainly
relevant
that
many
of the
ex
parte communications of this
proceeding
were
via
a
party
to
the
proceedings
—
the
CCOC.”
(Petitioner’s
Brief,
19).
First,
the statement
is
simply erroneous
as
there has been absolutely no evidence submitted in
the record
that there were any cx
parte
communications
between the
CCOC
and
a
decision
maker after
the application
was filed
and
before
decision.
Once
again,
Mr.
Beardin
testified
that
he
did
not
recall
having
any
such
In the
Randolph
County
case,
as
here,
it is the
position
of the
undersigned counsel
that
communications
from members of the
public
cannot by
definition be
ex parte
communications
as
the
public
is
not
a party
before
the
tribunal.
See
Town of Ottawa v
Pollution
Control
Board,
129
Jll.App,3d
121,
126,
472
N.E.2d
150,
154
(3d
Dist,
1984).
However,
the
Pollution
Control
Board has
been
consistent
on
this
issue
and
pursuant
to the
doctrine
of
stare
decis,
the
undersigned counsel understands the
IPCB
will
continue to be
consistent
in its mlings.
33
7O394222v~829983
communications
after the application was
filed and before decision.
All of the City Council
members
testified
that
whenever
someone
would
speak
to
them
about
the
landfill,
the
City
Council
member
would
refuse
to
discuss
the
issue.
Likewise,
when
Mr.
Beardin
gave
the
videotape to
Mr. Bubik,
this was once again merely, at most,
an attempted communication which
was ineffective as Mr. Bubik did not watch the videotape and nothing was said
about the landfill
application.
Finally,
there
is no
evidence that any of the
form
letters were
sent
by a party
to
the
proceeding,
and
rather,
the
evidence
was
they
were
sent
by
the
public
(though
the
form
was
passed
out
by
the
CCOC).
Therefore,
even
a
communication was
from
a
party
could
be
an
element in
determining gravity, which the Applicant provides no authority
for, there simply is no
basis for that claim
in this case.
Furthermore, the fact that a communication took place by
a party cannot be
an element in
determining
whether
or
not
there
is
prejudice
from
an
cx
parte
communication because,
by
definition,
the communication must
have
occurred
by a party (without
an
opposing
party being
present)
in
order
to
be
an
ex pane
communication.
Residents Against Polluted Environment
v.
County
of LaSalle
Land
Comp
Corporation,
PCB
96-243
(September
19,
1996)
provides
the
basis for the Pollution Control
Board’s definition of an
cx
parte
communication.
In that case,
the
JPCB
found that communications between a
decision maker and “constituents” who were
clearly
in
support
of a position held by
various objectors who were
parties
to
the
proceedings,
constituted cx
parte
contacts.
Id.
In essence, the IPCB
stated
that
as long as the communication
is
were made by someone advocating
a position of a party it
can be
considered
cx
parte.
Only
after
a
condition
is
considered
cx parte
does
one
then
employ
the
E&E
Hauling
factors
to
determine
if prejudice
occurred.
Obviously,
the
mere fact that
the communication is by, or on
34
70394222v1
829983
behalf of a party, which
is a necessary element to
a finding of
“ex
parte”communication, cannot
be
a basis for an allegation
that the communication was grave.
Employing
the proper
analysis
of “gravity”
(as
it
is
described
in
Ga/latin)
the
issue
is
whether the communication involved a substantive matter addressed and the merits of the case.
The
only
arguably consummated communications
which
took place
outside of the hearing were
the unsolicited form letters, which contain absolutely no substantive evidence or
a
discussion
of
the merits
but
merely
state that
the sender of the
form does
“not support
the expansion of the
dump”.
Clearly
this
is
mere lay opinion,
which
is
not
grave.
This
is
not
a
situation
where
the
City Council accepted substantive evidence on an
issue without the knowledge ofthe Applicant.
Therefore,
clearly these were no
“grave”
exparte
communications in
this case.
b.
The
communications
did
not influence the decision.
In
this
case,
each and
every
decision-maker testified
that
any statement
that
was made
outside
the public
record, including the
form
letters which may have been received in
the mail,
were not
considered
to
be
evidence.
Furthermore, each of the City
Council
members
testified
that
if
they
heard
or
received
any
statement outside
the
record
it
was
nothing
more
than
a
reiteration of general
opinions of opposition
to
the landfill
that
were
voiced during
the public
hearing.
There
is
simply
no
evidence
that
any
substantive
testimony
was received
by
a
City
Council member outside the hearing process.
The primary emphasis of the
Applicant’s case revolves around
a video tape of “Touched
By
An
Angel”
which
each
and
every
City
Council
member
testified
they
did
not
view.
Obviously the “Touched
By An Angel” video
could not have affected their decision.
The
Applicant
also
argues
that
the
decision
must
have
been
legislative,
rather
than
adjudicative,
partially on the grounds
that the City Council
did not
follow
the recommendations
of its staff and
the hearing officer.
(Petitioner’s
Brief, page 4).
However,
it
is
well
established
35
70394222v1
829983
that a
siting authority’s
consultant report or staff recommendation is
not binding on
the decision
maker.
CDT Landfill
Corporation
v.
City of Joliet,
PCB 98-60
(March
5,
1998);
Hedinger
v.
D&L
Landfill
Incorporated,
PCB
90-163
(December
20,
1990);
McClean
County
Disposal
Company
v.
County ofMcClean,
PCB
89-108 (November
15,
1989).
Furthermore, a consultant’s
report
in
a
siting hearing (which would
include the City staff and hearing officer’s reports) need
not
be
part
of the
public
record
or
provided
to
an
applicant,
although
the
reports
were
so
provided in
this
case.
Sierra
Club
v.
Will
County Board,
PCB 99-136, 99-139 (August
5,
1999).
The
Sierra
Club
case
establishes
that
if
a
consultant’s
report
is
primarily
a
summary of the
testimony
and public
comments and
a recommendation of the author of the report, it need not
be
filed during
the public
comment period.
Id.
Therefore,
it is
clear
that
the City Council,
as the
decision-maker,
does
not
have
to
follow
its
consultant’s
recommendations
as
those
recommendations
do
not
even
have
to
be
filed
as
public
comment.
The
City
Council
was
allowed, and
actually required,
to
exercise
its own
independent judgment.
There
is no
evidence
that it
failed
to
do
so
in
this
case.
Fairview Area
Citizens Task Force
v.
JPCB,
198
Jll.App.
3d
460,
555
N.E. 2d
1172
(Ill.App.
3d
Dist.
1990)
establishes
that
even when the decision-makers
have contacts
with constituents of a party
and members of the general public
outside the hearing
process
there
still
must
be
evidence
of
prejudice,
because
“elected
officials
presumed
to
act
objectively.”
Id.
at
1182.
The Plaintiff has presented no evidence
to overcome that presumption.
The IPCB has also
held that
expane
communications
upon
a
minority of board members
which
do
not
affect the vote of the majority of the members, are irrelevant.
Waste Management
of illinois
v.
Lake
County
Board,
PCB
88-190
(April
6,
1989);
National
Company
v.
Fulton
County
Board
and
County
of
Fulton,
PCB
91-256
(June
15,
1992);
Town
of
St.
Charles
v.
Kankakee
County Board
and Elton
Sanitary District,
PCB 83-228, 229,
230
(March
21,
1984).
36
70394222v1
829983
In this
case, it appears
that the Applicant
is primarily complaining
about the communications to
City
Council
member Donald
Bubik,
as
he
is
the
only
City Council
member that
was
given a
tape by
Mr.
Beardin
and
given
a
newspaper
article
by
Kenneth
Roeglin.
(Once
again,
those
communications
were
certainly not
grave,
as
Mr.
Bubik
did
not
view
the
video
tape and
the
newspaper
article
was
made
part
of
the
public
record
during
the
public
comment
period).
Nonetheless,
4
out of
5
ofthe City Council members
found that
criterion
i
and vi were
not
met,
and, therefore,
a majority would still
exist even ifMr.
Bubik’s vote was discarded.
c.
No Party Benefited From
the Alleged
Ex PurEe
Communications.
A third factor
enumerated
in
E&E Hauling
is
“whether the party
making
the
improper
contacts benefited
from the Agency’s ultimate decision.”
E&E Hauling,
116 Ill.App.
3d
607,
415
N.E. 2d
of 572.
Once
again, there
is
no
evidence that
any
party to
the hearing
communicated
with
a
City Council
member.
Mr.
Roeglin
was
not
a
party, there
is
no
evidence
that
the
form
letters
that were sent to
the City Council members were sent
by parties, and there
is no evidence
that
Mr.
Beardin
ever
effectuated
an
actual
communication
with
any
City
Council
member.
Therefore, no party benefited from the alleged communications.
d.
The Applicant Was Aware of the Public Opposition
to
its Application
and Had an Opportunity to Respond.
Once
again, the
only
communication
that
actually occurred
in
this
case, outside of the
hearing,
was the receipt
of unsolicited mailings
by
members
of the public
to
the City
Council
members.
These
mailings
were
form
letters
that
merely
contained
one
sentence
opinions
opposing
the expansion.
There was
no
substantive
evidence contained within these statements
and
similar
statements
were
made
throughout the
hearing
and
filed
in
the
public
comments.
Therefore,
the
Applicant
had
ample
opportunity
to
respond
to
any
public
opposition
to
its
37
70394222v1
829983
proposed application
and
did
so in
the five days of hearings, closing
argument
and post
hearing
briefs.
e.
No
Useful
Purpose
Would
be
Accomplished
by
Reversing
or
Remanding the City Council Decision.
The
fifth
E&F
Hauling
factor
to
be
considered
is
whether
remanding
the
proceedings
back to
the City
Council
would
serve
a
useful
purpose.
The
Applicant
requests a remand if the
Pollution
Control
Board
finds
that
the proceedings
were
fundamentally
unfair.
(Petitioner’s
Brief,
pg.
76).
However,
E&E
Hauling
and
the
C4y
of Rockford
cases
establish
that
the
appropriate
remedy,
if
indeed,
proceedings
were
fundamentally
unfair
based
on
ex
parte
communications,
is merely
to place
the purported
cx
parte
communications
on the record.
That
has
already
been accomplished
in
this
case,
wherein
extensive
discovery has
been
conducted
during the
40.1
IPCB review,
and
it has been discovered that
there were
little to
no
improper
communications.
All of the communications
of which the Applicant complains have been placed
in the record.
Accordingly, there would
be
absolutely no purpose in remanding this matter.
Since there has been no showing ofprejudice or irrevocable taint to the siting hearing as a
result ofany alleged
exparte
communication, and, instead, there has only been evidence that the
communications were the
same inevitable statements of opposition to
a landfill that
occur in each
and every landfill siting
ease.
Therefore,
the decision of the City Council should be affirmed.
4.
The
Hearing
Officer
did
not
Allow
any
Testimony
Regarding
the
Mental
Impressions of the Decision-Makers by Either the Petitioner or Respondent.
The Petitioner argues
that Illinois
case
law “has
led to
the ‘catch 22’.
.
.
that
the victims
of a
pane
communications
have
been
required
to
prove
resulting
‘prejudice’
without being
permitted to
explore the
decision maker’s
internal
thought
processes,
but decision-makers have
been
impropej~ypermittedjçjç~tifjj~a~jhe
ex
parte
communications
did
not
affect
their
decision.”
(Petitioner’s
BrieL
p.
6).
While
this
is
an
interesting
argument
raised
by
the
38
?0394222v1
829983
applicant,
it
is
completely
irrelevant
to
these
proceedings.
Hearing
Officer Halloran
did
not
allow
any
of
the
decision-makers
to
testify
regarding
whether
or
not
an
alleged a
pane
communication affected
their decision.
Therefore,
the Petitioner and Respondent
were on
equal
footing.
The Petitioner was able
to depose all of the City Council members and came to
find that
no substantive evidence was submitted to the City Council outside of the hearing process.
Though the hearing officer did not
allow any testimony by the City Council members that
any
out-of-court
statements
had
no
affect or prejudice
on
their
decisions
as
they indicated
in
offers of proof, that testimony
could have been allowed pursuant
to
E&E Hauling
and
Land and
Lakes
Company
v.
Randolph
County.
In both ofthose
cases,
the decision-makers
were
allowed
to
so
testify,
and,
thus,
the
IPCB
should
find
that
the objections
by
the Applicant
should
have
been overruled.
Regardless, the Applicants have not met their burden ofproving prejudice.
5.
There is no evidence of prejudice.
The
applicant
has
wholly
failed
to
meet
its
burden
in
this
case.
After
extensive
discovery,
it was found that
there were
actually very
limited unsolicited
communications
from
the public
to the City Council members.
Three individuals attempted to talk
to Mr.
Bubik, but he
refused
to discuss the landfill.
Mr.
Kissick could
not recall
exactly when Mr. Beardin attempted
to
make telephone calls to him,
and Mr.
Beardin denied ever speaking to
a City Council member
after the application was filed.
The Applicant
argues
that the statement made
in
the interrogatory
responses
by the City
of
Rochelle
(that
Mr.
Beardin
attempted
to
contact
Mr.
Kissick
on
six
occasions
after
the
application
was
filed and
before
decision)
is
a
binding judicial
admission
against Mr.
Kissick.
Mr.
Kissick
explained at the
IPCB hearing that
to
the extent
the interrogatory
answer indicates
that those communications took
place during that time period, the answer may be
mistaken, as he
actually
does
not
recall when
Mr.
Beardin made
the
telephone
calls.
The
Applicant
did
not
39
70394222v1
829983
object
to
Mr. Kissick’s testimony at trial
or move
to
strike
it, and,
thus, any
objection
is
waived,
and
the IPCB may consider the testimony.
E&E Hauling,
Inc.
v.
Pollution Control Board,
107
Ill.2d 33,
38(1985).
Nonetheless, the Applicant
cites
In Re:
Estate
or Renniclc,
181
Ill.
2d
395,
692
N.E. 2d
1150,
1156
(1998),
and
Van’s Material
Company v.
Department
of Revenue,
173
III.
App.
3d
284, 527
N.E. 2d
515,
518
(1st Dist.
1988) for the proposition
that
an
interrogatory
answer is
a
binding admission,
which
may not
be
contradicted
at
trial
(Petitioner’s
Brief,
pgs.
13
and
14).
However the
Rennick
case
only
provides
that
a
discovery response
“may”
constitute
a judicial
admission
and acknowledges it is within
the discretion of the hearing officer to
allow the witness
to explain his answer.
The
interrogatory
answer also
cannot be
considered
to
be
an
admission of any
cx
parte
communication because it explicitly
provided that
“Mr.
Kissick
informed Mr.
Beardin that Mr.
Kissick
was
not
at
liberty
to
discuss
the
pending
application.”
(Petitioner’s
Ex.
1,
pg.
2).
Therefore
the
Applicant’s
statement
that
Frank Beardin
“contacted
councilman
Ed
Kissick
on
approximately
six
occasions after the
application
was
filed
to
express
the
CCOC’s
opposition”
(Petitioner’s Brief pg.
13)
is not
supported
by the interrogatory answer, nor any of the testimony
at hearing.
The interrogatory answer explicitly
provided
that
no
communication took
place
as
Mr.
Kissick
informed
Mr.
Beardin he
would
not
discuss
the
matter.
Therefore,
even
if the
Applicant
had
not
waived the objection
to
Mr.
Kissick’s testimony,
there
simply
is
no judicial
admission that
Mr. Beardin personally spoke with Councilman Kissick
after the application was
filed about
his
opposition
to
the
landfill
and
Petitioner’s
assertion
to
the contrary
is
a complete
mischaracterization of the evidence and testimony.
40
70394222v1
829983
Therefore, the applicant has
failed to
meet its burden of showing that any
communication
took
place
after
the
application
was
filed,
which
prejudiced
the
decision.
The
City
Council
members
told
anyone who attempted
to
discuss
the application
that
they
would
not
do so.
The
applicant also was unsuccessful
in
establishing the form
letters were
sent by
a party (CCOC) and
instead they were made available by the CCOC for various members ofthe public
to send if they
so desired.
Because there
is
no
evidence that
these
form
letters
were
sent
by
a party
they,
by
definition,
cannot
be
cx parte
communications.
Regardless,
there
is
no
evidence
that
these
communications
prejudiced
the decision of the
City
Council
members.
To
the contrary,
every
witness
testified
that
these
form
letters
were
no
different
than what was
testified
to
at
the
City
Council hearings.
The form letters provided in
toto:
I
appreciate the work you
do
for the
City and the
time
you
spent researching this
expansion project.
I
do
not
support the
expansion of the dump.
Please take my
opinion into
consideration
when you vote on this
issue.
Thank
you
for your time
and
attention.
LSee Petitioner’s Exhibit 4,
form letter; record cite)
Obviously,
these form letters
were “merely expressions of the public
sentiment
.
.
on the
issue of the
landfill application” just like the contacts
at issue in
Waste Management ofIllinois
v.
PEW.
175
Ill.App.3d
at
1043,
530 N.E.2d
at
627.
The
same nature of communications
were
made
at the public hearing and
in
the public comments.
Furthermore, the applicant acknowledged
it
was present at the hearing and was aware
that
there was a strong public sentiment against its
application.
(See 2/24/03
Tr.
25 1-74;
2/26/03 Tr.
5-7;
156-63;
3/3/03
Tr.
5-17,
170-85,
263-71;
3/4/03
Tr,
5-31,
162-73;
244-308,
Public
Comment letters, C6166, C6652; and page
1 ofApplicant’s Closing Argument and Law, C7913).
The Applicant
had
ample
time
and
opportunity
to
respond
to
this
public
opposition,
if
it
so
41
70394222v1 829983
desired.
The Petitioner’s
argument
that
the mere fact that
there was
strong
public
opposition
should lead to overturning the City Council’s decision is ludicrous.
In this
case, the City Council
was
very
concerned
about
the
traffic;
health,
safety
and
welfare;
compatibility
and
need.
Numerous members of the public were
also very concerned
about these considerations
in regard
to
the
mega-landfill
proposed
to
be
built
by
the
Applicant
in
the
city
of Rochelle.
It
is
a
complete non-sequitur to argue that strong public opposition based upon the inappropriateness of
a proposed location should,
in and ofitself, lead to
another chance
for the Applicant to present
its
case.
In
E&E
Hauling,
the
Second
District
actually
found
that
the
decision-maker’s
unequivocal public pronouncements
in favor of the proposed expansion amounted to
a sufficient
pre-judgment on
the merits of the
case to
warrant
a
finding of “disqualifying bias.”
451
N.E.2d
at 566.
Nonetheless, the IPCB
found that because the County Board
was the entity authorized to
hear
the
application,
and
the
petitioner
failed
to
show
that
the
decision-making
process
was
“irrevocably
tainted”
as
to
render
the
proceeding
fundamentally
unfair,
the
County
Board
decision would be affirmed.
In this
case,
the alleged improper communications
amounted
to
no
more than
three attempted
statements
to
Mr.
Bubik,
some
possible
attempted
statements
to
Mr.
Kissick
and
Mr.
Coiwill,
and
receipt
of form
letters
stating
opposition
to
the
landfill.
(Once
again,
the
videotape
and
the Florida
newspaper
articles
should
be
completely
disregarded
as
there
is
no
evidence
that
any
City
Council
member
ever
saw
the
videotape
and
the Florida
newspaper
article
was
part
of
the
public
record).
Obviously,
these
extremely
minor
and
inevitable
contacts
do
not
rise
to
the
level
of “irrevocable
taint”
requiring
a
remand
of the
hearing, and the applicant has failed to meet its burden ofproof.
42
70394222v1
829983
6.
The Applicant’s
claim that the Standard
Should be Changed
from Requiring
an Applicant
to show
Actual Prejudice to a
mere Appearance of Impropriety
Should be Disregarded as it is not Supported
by Illinois Law.
In
an
entirely unique
and
creative
argument,
the
applicant’s counsel
asks
the
IPCB
to
ignore
the
controlling Illinois precedents
and
find
that
actual prejudice need not
be
shown, and,
rather,
there merely needs
to
be
an “appearance of impropriety”.
(Petitioner’s Brief,
4-12).
To
come
to
this
conclusion
the
petitioner sites
a
variety
of completely
irrelevant
non-controlling
precedents
from the District
of Columbia,
the Western District of Wisconsin, the Iowa Supreme
Court, the Second District
ofNew York, the Kentucky Court ofAppeals
and various Federal trial
judge opinions.
This is undoubtedly because the Applicant is aware it has absolutely no legal leg
to stand on under Illinois law.
Rochelle Waste wants the
IPCB
to
ignore the concept of
stare
decisis,
which
provides
that
it
is
the
policy
of the
courts
to
stand
by
precedent
and
leave
settled
points
of
law
undisturbed.
Charles
v.
Seigfried,
651
N.E.2d 154,
165
at Il1.2d 42
(Ill.
1995).
The concept of
stare
decisis
reflects
a
policy
judgment
that
in
most
matters
it
is
more
important
that
the
applicable rule
of law
be
settled,
than
it
be
settled
right.
State
Oil
Company
v.
Kahn,
119
U.S.
275
(1997).
The concept
of
stare
decisis
is
equally
applicable
to
the
IPCB,
which
has
long
recognized
that
Illinois
appellate
decisions
are controlling precedent
over
the Board.
See
Land
and Lakes
Company v. Randolph County Board of Commissioner,
PCB 99-69 (Sept. 21,
2000).
The Applicant
specifically
argues
that
a
“long line
of authority” establishes that no
such
actual prejudice
needs
to
be
established
and that
the
real question
is
whether there has been
an
appearance of impropriety
if
a
local
siting
authority
is
acting
in
a
quasi-judicial
capacity,
as
opposed to
quasi-legislative
capacity.
(Petitioner’s
Brief,
pg.
11).
However the alleged
“long
line
of
authority”
turns
out
to
merely
be
a
Wisconsin
federal
trial
court
order
concerning
a
43
70394222v1
829983
discovery motion
Sokaogon
Chippewa Community
v. Babbit,
929 F.Supp.
1165,
1174
(WD Wis.
1996), reconsidered in
part, 961
F.Sup.
1276 (WD Dis.
1997).
(Petitioner’s Brief,
11).
A
trial court’s
finding on
a specific
motion
is
in
no
way precedential or controlling upon
the Illinois
Pollution
Control
Board,
the Illinois state
courts,
the Illinois
federal
courts,
or even
another district court in the Western District of Wisconsin.
There simply is no
legal obligation to
follow
earlier
trial
court
decisions
even
in
the
same
district.
Moore’s
Federal
Practice,
par.
134.021d~
3rd Ed.
(1999) (a decision of a federal district judge is not binding precedent in the
same judicial
district);
Threadgill v. Armstrong
World Industry, Inc.
928
F.2d
1366,
1371 Note 7
(3rd Cir.
1991)
(there is
no
such thing
as
“the law of the district”);
United States
v.
Articles of
Drug,
Consisting of 203
Paper Bags,
818
F.2d
569,
572
(7th
Cir.
1987)
(a
single
district
court
decision, especially one that
cannot be
appealed, has little precedential
effect).
It
should
also be
noted that
Sokaogon
decision, which is so heavily relied
upon by the Petitioner,
is apparently not
even a
final decision, as
it was never appealed and
a portion of it was even reconsidered by
the
trial judge who
issued
the
decision in
the
first
place.
Sokaogon,
961
F.Sup.
1276
(W.D.
Wis.
1997).
The
Sokaogon
case involved
a
suit
brought
under the Administrative
Procedure
Act
for
violation
of the
Indian
Gaming
Regulatory
Act
and
Indian
Reorganization
Act
and,
thus,
is
clearly
irrelevant
to
an
Illinois
Section
39.2
siting
hearing.
Furthermore,
the
Sokaogon
case
involved alleged congressional or presidential communications with agency decision-makers (i.e.
government
officials
to
government
employees)
and
in
no
way
involved
the general
inevitable
contacts of members of the public to their elected officials.
Even the
Sokoogon
case held that “in
the absence of clear
evidence
to
the contrary, courts
should presume
that
public
officials
have
discharged their
duties properly” and
“it
is
still necessary
to
analyze whether the possibility
of
44
70394222v1
829983
legislative
and
executive contacts
with
the department
so
tainted the decision on
the
plaintiffs’
application
as
to
warrant
extra-record
discovery.”
Id.
at
1176.
Finally,
Sokoogon
is
also
irrelevant because it only
involved the question
of whether or not depositions of public officials
should
have been allowed
(the
Court
found they should
not
be
allowed because
there was
no
strong
showing of bad
faith), and in this
case the applicant was allowed to
depose
all ofthe city
council members.
In
MIG Investments,
Inc.
and the United Bank ofIllinois
v.
IEPA,
PCB
85-60 (Aug.
15,
1985) the IPCB had
the opportunity
to discuss
stare decisis
as it related to circuit court decisions.
The Board
found that “it
is
well
settled Illinois law that
each trial
court is bound by decisions of
all Illinois Appellate Courts (except in
cases of conflict between Appellate districts
in which case
a
trial
court
is
bound
by
decisions
in
its
own district),
and
that
Appellate Courts
are
bound by
decisions of the Supreme Court;
this is the case
even if the inferior tribunal believes the superior
one has made ‘bad
law’.”
Id.
at
Slip.
Op.
pg
5.
The
IPCB found that
a trial
court was
an equal,
rather than
superior tribunal
to
the Pollution
Control
Board.
The
IPCB
also
noted
that Section
41(a)
has vested the Appellate Courts
with
the
authority
to review
the IPCB, which makes
the
appellate
courts
a
superior
tribunal.
Id.
Accordingly, the
IPCB has
acknowledged that Illinois
Appellate Court
decisions must
be
followed, even if the Board
does not consider them
to be well
reasoned,
and trial court decisions are
not precedential.6
Therefore,
even if one would
somehow
conclude that
E&E Hauling,
Waste Management,
City of Rockford,
and
Fairview Area
Citizens
6
The
following cases
cited in the Petitioner’s Brief are not controlling precedents and should
be
disregarded
as
they
are
either from
trial
courts and/or completely different jurisdictions, which do
not interpret the
laws
of Illinois.
U.S.
v. Hooker Chemicals
& Plastics corp.,
123
F.R.D.
3
(W.D.N.Y.
1988);
US.
v Ferguson,
550 F.Supp.
1256
(S.D.N.Y.
1982);
State
v. Mann,
512
N.W.2d 528
(In.
S.Ct.
1994);
Sokaogon Chippewa
Community
v.
Babbitt,
929
F.Supp.1165
(W.D.
Wis. 1996),
reconsidered
961
F.Supp.
1276
(W.D.
Wig.
1997);
D.C.
Federation of Civic
Associations
v.
Volpe,
LI 59
F.2d
1231
(D.C.
Cir.
1971);
Peter Kiewit
Sons.
Co.
v.
(.1.5.
Army Corps ofEngineers,
714
F.2d
163
(D.C. CF.
1983);
Pillsbury
Co.
i’.
Federal Trade
Commission,
354
F.2d
952
(5th
Cir.
1966);
Jarrot
v.
Scrivener,
225
F.Supp.827
(D.D.C.
1964);
Koniag,
Inc.
v. Andros,
580 F.2d
601
(D.C.
Cir.
1978);
ATX Inc.
v. Dept. of Trans.,
41
F.3d
1522
(D.C.
Cir.
1994);
Patco
v. Federal Labor Relations Authority,
685
F.2d
547
(D.C.
Cir.
1982);
Louisville
Gas and
Electric
Co.
v. Commonwealth of Kentucky,
862 S.W.2d
897
(Ky.
Ct. Apps.
1993).
45
70394222v1
829983
Task Force
v.
IPCB,
198
Ill.App.2d
541,
555
N.E.2d
1178
(Ill.App.3d
Dist.
1990)
(which
all
require a
showing
of actual prejudice)
are
ill-reasoned,
they
must
still
be
followed,
and
have
been,
by
the Illinois
Pollution
Control
Board.
See
e.g.
Land and Lakes
Company
v.
Randolph
County,
PCB 99-69 (Sept.
21,
2000).
The Applicant has
all but
acknowledged
that there
is
no
actual
prejudice
in
this
case
and,
therefore,
the decision of the
City of Rochelle
City
Council
should be affirmed.
Finally,
even
if
the
IPCB
could
ignore
the
controlling
precedents
which
require
a
showing of actual prejudice;
there
is not even a “possibility” of prejudice here or an “appearance
of impropriety”.
The
record
is
absolutely
clear
that
all
of the alleged
out-of-court
statements
were non-substantive and
merely repetitive of the opinions
voiced during
the hearing;
therefore,
there is no “possibility” ofprejudice.
Furthermore, each City Council member refused to discuss
the
application
outside
of
the
hearing
process
and,
thus,
there
obviously
cannot
be
any
appearance of impropriety.
The
Applicant
suggests
that
Mr.
Beardin’s
possible
unsuccessful
attempts
to
communicate
with
Mr.
Kissick
and
his
unsuccessful
attempt
to
get
Mr.
Bubik
to
watch
a
videotape
(that
had
nothing
to
do
with
landfills)
somehow
results
in
an
appearance
of
impropriety.
However,
even
if
Mr.
Beardin’s
conduct was
improper,
he
was
not
a decision-
maker.
The City Council
followed the highest
standard ofpropriety by
refusing
to
discuss
the
application.
They were
so diligent
in
dissuading
such communications
that
Mr.
Colwill
even
refused to
discuss the issue while campaigning for Mayor, which was undoubtedly
a detriment to
his
campaign.
Therefore,
even if the standard urged
by
the Applicant
was the
law
(which
it is
not) there is no possibility ofprejudice or any appearance ofimpropriety in this case.
46
70394222v1
$29983
The applicant also
alleges
that the
case of
People ex.
rel.
Klaeren
v.
Village ofLisle,
202
Ill.2d
164,
183,
781
N.E.2d 223,
234
(2002)
is
somehow relevant
to
or controlling
in
a
Section
39.2
hearing
and
that
the
case somehow
suggests
that
“actual
prejudice” need
not
be
shown.
(Petitioner’s
Brief,
8,
17).
First,
Klaeren
is
limited
to
special
use zoning hearings.
Second,
that
case merely held that interested parties should have a right to cross-examine witnesses, and there
is
no
dispute
that
the applicant
in
this
case
had
ample
opportunity
to
cross-examine witnesses.
There
is
no
discussion
in
Kiacren
about
cx parte
contracts,
political
influence
over
decision-
makers, or the necessity ofshowing actual prejudice.
The applicant also
sites
the
Klaeren
case as
authority
for
its
unique
proposition that
the
counsel’s decision should be overturned on the grounds that
the City Council members
allegedly
did not have discussions with each other,
legal counsel, or environmental
consultants concerning
the
application.
(Petitioner’s
Brief,
18).
This
is
the
first time
of which we
are aware
that
an
Applicant
has
argued
the
lack
of
cx
parte
communication
is
fundamentally
unfair.
We
have
scoured
the
Klaeren
case
and
do
not
see
that
it
in
any
way
discusses how
a
public
body
must
deliberate.
Rather,
the only
issue
was whether
a
land owner
whose
property
abuts
a
parcel
subject to
a
proposed
annexation
and
special
use
rezoning can be
wholly
denied
the right
to
cross-examine witnesses.
Klaeren,
781
N.E.2d at 224.
The
Applicant
also
inappropriately
suggests
that
Klaeren
overruled
the
E&E
Hauling
case when it argued “although
some cases in
this area have suggested such procedures allowing
a decision-maker
to
testify
that
his
opinion
was
unaffected
by
ex
parte
comrnunication
pass
muster (see
for example,
E&E Hauling,
116 lll.App.3d at 616,
451
N.E.2d 577-78,
71
Ill.Dec.
at
609-10), these cases
pre-date
Klaeren.”
(Petitioner’s Brief, pg
17).
The
Klaeren
case in no way
overruled
E&E
Hauling,
and,
to
the contrary,
Klaeren
explicitly
acknowledged that
“to what
47
?0394222v1
829983
extent
the
full
panoply
of
due
process
rights
commonly
associated
with
quasi-judicial
proceedings must be afforded to
interested parties depends
upon the purpose of the hearing.”
Id.
at 234.
Klaeren
at no time held that every right afforded at trial must be
afforded
at a
special use
zoning
hearing
and,
rather,
it
only
held
that
there
should
be
a
right of cross-examination
for
parties
in
such cases.
Therefore,
Klaeren
is clearly irrelevant to
the present case
and
in
no
way
changes the
long
standing acknowledgment by the courts that all
of the elements ofdue
process
that
would
be
allowed
at
a
trial
need
not
be
allowed
at
the
Section
39.2
siting
hearing.
Furthermore,
the applicant has
not
cited
even
one
Illinois
case
that
states
that
actual
prejudice
need not be shown to determine if an
cxparte
contact should result in remand
to the trier of fact.
In
conclusion,
the
Applicant’s
assertion
that
actual
prejudice
need
not
be
shown
is
erroneous,
and,
regardless, there
is no
evidence of even
a possibility
of prejudice,
an appearance
ofimpropriety.
7.
The Petitioner has
Admitted
that
it
Suffered No Prejudice
as
a
Result of the
Council’s April 28, 2003 Meeting.
Surprisingly,
the
applicant
takes
issue
with
the
April
28,
2003
meeting
of
the
City
Council, wherein the City Council
changed its
decision of April 24,
2003 that criterion ix had not
been
met,
to
a
finding
that
indeed that
criterion had
been met.
The Petitioner has admitted that
the only reason it takes issue with
this change in decision is because it wanted to use the fact that
the
City
Council
found
against
it
on
criterion
ix
to
somehow
argue
the
proceedings
were
fundamentally
unfair.
(Tr.
164).
First,
the applicant has not
been barred
from making
such
an
argument.
Second,
if
the
Applicant
so
desires,
the
original
decision
on
criterion
ix
can
be
reinstated,
and
the
IPCB
can
issue
a
finding
that
it
was
against
the
manifest
weight
of the
evidence.
Of course,
such
a
finding
should have
no
import because the
IPCB
should affirm the
City Council’s decisions as criterion
i,
ii,
iii,
and vi.
By way of explanation, there was discussion
48
70394222,11
829983
at
the underlying hearing regarding recharge
areas,
which
may be
an
explanation as
to
why the
City Council
members were
confused by the regulated recharge
areas referenced
in
criterion
ix.
(Tr.
165).
As
to conditions if there is ever a reversal, the Applicant has admitted that
it is ready
and
willing
to meet those
conditions
and that the April
28,
2003
contingent imposition
of conditions
caused
them
no
prejudice.
(Tr.
167).
Furthermore,
the
imposition
of the
conditions
only
becomes an issue
if somehow the
IPCB
overturns the City Council
decision, completely
ignores
the
City Council’s
concerns
about
need,
health
and
safety, compatibility
and
traffic,
and
issues
an
unprecedented “automatic
approval”
to
the
applicant.
This
scenario
is
highly unlikely
and,
thus, the
April
28,
2003
meeting
was merely
an extremely cautious measure of the City Council.
The mere fact that the City staff and hearing officer felt that the imposition of 50 conditions was
necessary if the City
Council
found that
the siting
criteria were
met,
evidence that
it
would
be
improper for the
IPCB
to
grant siting approval without
imposing said conditions.
Furthermore,
the only
recognized remedy
for
a violation
of fundamental fairness
is remand.
E&E Hauling v.
Pollution
Control
Board,
116
Ill.App.3d
586,
607,
451
N.E.2d
555,
571
(2nd
Dist.
1983).
Therefore,
if the
IPCB
somehow
finds
that
the
City
Council
decisions as
to
the criteria
were
against the manifest weight of the
evidence,
and
the preceedings
violated
fundamental
fairness,
then the
only appropriate
remedy would be
to
remand for further hearing rather than
automatic
approval without the imposition of the conditions.
Furthermore, the
April
28,
2003
decision of the
City Council
regarding
the
conditions
was not
a “reconsideration” because the matter had never been brought
up before
April 28, 2003.
Therefore,
the
cases
relied
upon
by
the
Applicant
to
suggest
that
the
City
Council’s
reconsideration was
void
do
not
apply
to
the
imposition of conditions.
On
April
24,
2003,
the
49
70394222v1
829983
City Council
merely
voted
on
each of the criteria and
found that
several of them
were
not
met.
At no
time did
the City Council
entertain a
vote that the conditions should be imposed if the City
Council
on April 24,
2003
decision was reversed.
Therefore,
the April
28, 2003
meeting
on this
aspect was an initial consideration and not
a reconsideration.
Finally,
as
to
the
applicant’s assertion
that
the
April
28,
2003
meeting was
“ex parte”
such
a
statement
is
simply
erroneous.
An
cx parte
communication
is
a
communication
of a
tribunal
“with
a
party before
it”
without the presence or knowledge
of another
party.
Town of
Ottawa
v.
PCB,
129 Ill.App.3d
121,
126, 417
N.E.2d 150,
154
(3rd Dist.
1984).
The Applicant
was made aware of the meeting and
they even
attended the meeting, and,
therefore,
the applicant
cannot complain that the communication was
exparte.
B.
The
City
Council’s
Findings
that
Criteria
i,
ii,
iii
and
vi
were
not
met
are
not
Against the Manifest Weight of the Evidence.
The Applicant bears the burden of establishing each and
every criteria set forth
in
section
39.2(a).
Fairview
Area
Citizens
Taskforce
v.
Illinois
Pollution
Control
Board,
198
Ill.App.3d
541,
550,
555
N.E.2d
1178,
1184
(3d
Dist.
1990).
If any
one of the
criteria are
not
met,
the
application must be denied.
See
Waste Management ofIllinois,
Inc.
v.
Pollution Control
Board,
187
Ill.App.3d
79,
81,
543
N.E.2d
505,
507
(2d
Dist.
1989).
In
this
case,
the
City Council
correctly found that not one, but four criteria, namely criteria i,
ii, iii, and vi
were not met.
The PCB
must
review
the City
Council’s
decisions
on each of the
above criteria under a
manifest
weight ofthe evidence standard and
only reverse those
decisions if they are against the
manifest
weight
of the
evidence.
Fairview,
198
Ill.App.3d
at
550,
555
N.E.2d
at
1184.
A
decision
is
against the manifest weight of the evidence
if the opposite
result
is clearly evident,
plain or indisputable from a review of the evidence.
Id.
50
70394222v1
829983
If ~py evidence
supports
the decision of the
local
siting
authority
that
decision
is
not
against
the
manifest
weight
of the
evidence
and
must
be
affirmed.
See
EPA
v.
PCB,
252
Ill.App.3d
828,
830,
624 N.E.2d 402,
404
(3d
Dist.
1993).
It
is the province of the hearing body
to
weigh
the evidence, resolve conflicts
in testimony,
and assess the credibility of witnesses.
Id.
Merely
because
there
is
some
evidence
on
the
record
which,
if
accepted,
would
support
a
contrary
conclusion,
does
not
mean
that
this
Board
can
substitute
its judgment
for that
of the
local
siting authority.
Wabash and Lawrence
Counties Taxpayers and
Water Drinkers Assoc.
v.
Pollution Control Board,
198
Ill.App.3d 388,
393,
555
N.E.2d 1081,
1086 (5th
Dist.
1990).
Although
the Applicant
contends that
it presented a
“prima
facie’
case
on
each
criteria
based
on
“unrebutted
testimony,”
such
an
assertion
is
clearly
untrue.
There
was
not
only
testimony contradicting the Applicant’s testimony
as to criterion
ii, but
the testimony provided by
the Applicant
with
respect
to
criterion
i,
iii
and
vi
was
based
on
erroneous
data and
improper
assumptions,
as specifically
pointed
out
by
the CCOC
in
its
Closing
Argument
and
Proposed
Findings of Fact.
(C7818-7836).
Therefore,
it
is clear that the Applicant did
not present a prima
facie
case,
as it suggests,
and
in
fact,
the
Applicant
failed
to
carry
its
burden of proof on
four
criteria.
The
Applicant
erroneously
contends
that
there
was
no
testimony
contradicting
their
witnesses
with
respect
to
criterion
ii
simply because
CCOC’s
witness,
Charles
Norris,
did
not
specifically conclude
that the facility was not
protective of the public health,
safety and
welfare.
However, Mr. Norris was not required to provide
such testimony because the applicant bears
the
burden of proof in
establishing
all
of the
statutory criteria,
including
criterion
ii,
are
met.
See
Fairview,
198
Ill.App.3d
at
550,
555
N.E.2d at
1184.
Therefore,
Mr. Norris
was
only
required
to
establish that
the applicant did
not meet
its burden of proving that the public health
safety
and
51
70394222v1
829983
welfare would be protected by the proposed facility, which Mr. Norris clearly did by pointing out
deficiencies
in
the
applicant’s
groundwater
impact
assessment
and
inadequate well monitoring
program.
Such
testimony
clearly conflicted
with
the testimony of the
Applicant’s witness
who
specifically
testified
that
the
groundwater
impact
assessment
and
groundwater
monitoring
program were more than adequate,
and the City Council was the appropriate body to
resolve that
conflict.
See Land and Lakes
Co.
v. Illinois
Pollution Control Board,
319
1ll.App.3d 41,
53,
743
N.R2d
188,
197
(3d Dist.
2000)
(explaining that
the County
Board
was
in
the
best
position
to
resolve
a
conflict
in
testimony
about whether
applicant’s
groundwater
assessment
model
and
groundwater monitoring
program were
adequate and
whether
the applicant sustained
its
burden
of proof).
Because there was conflicting
evidence presented
at
the
siting
hearing, this
case
is
not
analogous
to
Industrial Fuels,
227
I1l.App.3d 533,
546,
592
N.F.2d
148,
157
(1st Dist.
1992) as
the Applicant asserts.
It was only because of a complete lack of evidence that the
Court reversed
the County
Board’s decision
in
Industrial Fuels,
finding
that
the County
Board’s
decision was
based on
unsubstantiated fear, rather than facts or evidence.
227
Ill.App.3d
at
547,
592
N.E.2d
at
157.
In this
case, unlike
Industrial Fuels,
the City Council’s
decision was not
based on
fear,
but was based on evidence, in the form oftestimony from Charles Norris with respect to criterion
ii,
and
a
lack of evidence presented by
all
of the other witnesses,
leading
to
the City
Council’s
proper
and
appropriate
conclusion
that
the
Applicant
failed
to
carry
its
burden of proof with
respect
to
criteria
i,
ii,
iii
and
vi.
It was certainly appropriate for the City Council
to find
that
criteria
i,
ii,
Hi
and
vi
were
not
met
because the
Applicant’s
own
experts
admitted
that
their
conclusions
were
based
on
certain
assumptions
that
may
or
may
not
actually
exist,
and
the
credibility of each of the witnesses was questionable.
52
70394222v1 829983
Even where no
conflicting expert testimony was presented, the City Council
was
free
to
find that
the Applicant
failed to
meet the criteria set forth
in
Section
39.2 of the Act because the
trier of fact determines what weight
should be
accorded to
expert testimony.
In re Glenville,
139
Ill.2d 242,
251,
565
N.E.2d
623, 627 (1990).
As
explained by the Illinois Supreme Court:
“Even
if several competent expert
witnesses concur
in their opinion,
and
no
opposing
expert testimony
is
offered, it
is
still within
the province
of the trier of fact to
weigh
the credibility of the expert
evidence
and
decide
the
issue.”
Id.
While
the trier of fact
is
not
allowed
to
arbitrarily
reject
expert testimony, it is within the province ofthe trier offact
to disbelieve such testimony.
Id.
In
this
case,
it
is
clear
that
the City Council
reviewed
the
testimony
and
found that
despite
the
testimony of the Applicant’s witnesses, criteria i, ii,
iii
and vi were not
met.
That decision should
be
affirmed
because
it
is
the province of the local
siting authority,
and not
this
Board,
to
weigh
the evidence
and
assess
the
credibility of the
witnesses.
Fairview,
198
Ill.App.3d
at
550,
555
N.E.2d at 1184.
Finally,
this Board
should
disregard
the
Applicant’s
implication
that
the
City
Council’s
decision was
against the manifest weight of the evidence merely
because
it was contrary to
the
recommendations
of its
environmental
consultants
and
the hearing officer.
Pursuant
to
section
39.2(a) ofthe
Act,
it
is
the City Council that
is granted the authority to
approve
or disapprove
a
request for local siting
approval for a pollution
control facility.
415
ILCS
5/39.2(a).
It
is well-
settled
that
“the
decision-making
authority
rests
solely
with
the
local
government.
A
local
goveniment’s
consultant report or a staff recommendation
is not binding
on the decision maker.”
CDT Landfill
Corp.
v.
City of Joliet,
PCB
98-60,
citing Hediger
v.
D&L Landfill,
Inc.,
PCB 90-
163
(Dec.
20,
1990);
see
also
Sierra
Club
v.
Will
County
Board,
PCB
99-136,
139
(Aug.
5,
1999)
(explaining
that
“a
consultant
report
or
staff
recommendation
is
not
binding
on
the
53
70394222v1
829983
decision-maker”);
McLean
County Disposal
Co
v.
County
of McLean,
207
Il1.App.3d 477,
566
N.E.2d
26
(4th
Dist.
1991)
(holding
that
a
local
siting
authority
is
not
obligated
to
follow
an
expert’s recommendation).
Therefore,
it is only the City Council’s decision that
is relevant and is
to
be
reviewed by
the Board
to
determine if it
is
against the manifest weight
of the
evidence.
Therefore,
any and
all
references
by
the Applicant
to
the recommendations
made by the hearing
officer and environmental consultant should be
disregarded by this Board.
Even if the reports of the staff and hearing officer were
considered, those
reports do
not
establish
that
the Applicant
clearly
met
all
of
the
statutory
criteria.
Those
records
actually
establish that the Applicant’s presentation was quite lacking,
as both the staff and hearing officer
recommended
that
49
to
50
conditions
be
placed
on
approval.
(C8155-82l0;
8049-8150)
Instead of imposing all ofthose conditions, the City Council
could have reasonably found as they
did, that the Applicant failed to
sustain
its burden ofproof
As
explained more thoroughly below, the
City
Council’s
decision with
respect to
criteria
i,
ii, iii
and vi
were clearly
not against the manifest weight of the evidence but were
supported by
the
evidence.
As
a result,
the City
Council’s
decision to
deny
siting
approval
to
the proposed
facility must be
affirmed.
1.
The
City
Council’s
Decision
that
the
Proposed
Facility
was
not
Necessary
was
not Against the Manifest Weight of the Evidence.
Section 39.2(a)(i) requires
that an
applicant for local
siting
approval demonstrate that
the
proposed
facility
“is
necessary
to
accommodate
the
waste
needs
of the
area
it
is
intended
to
serve.”
415
ILCS
5/39.2(a)(i).
This
criterion requires that
the applicant
show
that
a
facility
is
“reasonably
required
by
the
waste
needs
of
the
area
intended
to
be
served,
taking
into
consideration the waste production of the area and the
waste disposal capabilities,
along with any
other relevant factors.”
Waste
Management of Illinois,
Inc.
v.
Illinois
Pollution
Control Board,
54
70394222v1
829983
122
Ill.App.3d
639,
645,
461
N.E.2d 542,
546
(3d Dist.
1984).
Where other available
facilities
are
sufficient
to
meet
the
future
waste
needs of the service
area,
expansion
is
not
“reasonably
required.”
Id.
at 546-47.
The Applicant bears
the burden of establishing need.
Waste Management,
123
Ill.App.3d
1075,
1087,
463
N.E.2d 969,
979
(2d Dist.
1984).
Where an applicant establishes nothing more
than that
a landfill
will
be
convenient,
the applicant fails to
establish that
criterion
i
is
met.
See
Waste Management,
123 Ill.App.3d
1075,
1085, 463
N.E.2d 969,
976
(2d Dist.
1984).
While
Ms.
Smith testified
that
the proposed
facility was necessary, her
credibility
was
called
into question during
the
siting hearing.
First,
Ms.
Smith
admitted that
she had
been paid
$35,000
to
$40,000
to
prepare her needs
report
and testify on
behalf ofthe
Applicant.
(2/25/03
Tr.
43).
Based
on
this
testimony,
the
City
Council
could
have
concluded
that
Ms.
Smith’s
testimony
was
simply not
credible
or
should
not
be
given
much,
if any,
weight.
See
Ballin
Drugs,
Inc.
v.
Illinois Dept of Registration and Education,
166 Ill.App.3d
520,
519
N.E.2d
1151
(1st
Dist.
1988)
(explaining
that
a
witness
being
paid
to
testify
goes
to
the
weight
of the
testimony
presented,
which
is
to
be
decided
by
the
fact
finder);
Kiewert
v.
Balaban
&
Katz
Corp.,
2512
I11.App.
342
(holding that
a witness being paid to
testify
may have
a bearing on
the
witness’
credibility).
To
further
diminish
her
credibility,
Ms.
Smith
admitted
that
out of the
thirteen needs reports she has drafled, she has never prepared a report
in which she did not
find
a
need
existed.
(2/25/03 Tr.
45).
Ms.
Smith’s
credibility was further called
into question because
her
computations
on
distances
between
the
proposed
facility
and
other
facilities
were
contradicted by Mapquest,
which
found each of those
facilities
to
be
approximately
7
to
8
miles
closer than what Ms.
Smith indicated in
her needs report.
(2/25/03 Tr.
104-08).
Therefore,
the
City Council
could have understandably
concluded that no
matter whether the proposed facility
55
70394222v1
829983
was
necessary
or
not,
Ms.
Smith
would
determine
that
the
facility
necessary
and
would
manipulate
the data in order to reach such a conclusion.
Furthermore,
the
basis
for
Ms.
Smith’s
conclusion
that
the
proposed
facility
was
necessary was
also
called
into
question because while
Ms.
Smith
asserted
that
as
much
as
123
million
tons
of waste
in
the
service area may require disposal,
that
figure
was
based
on
a
zero
percent
recycling
rate
even
though
all
counties
are
recycling
above
zero
percent
and
some
counties, including
Ogle
county, are actually exceeding their recycling
goals.
(2/25/03
Tr.
57).
Ms.
Smith’s
conclusions
were
also
questionable
because
she did
not
know how much
of Ogle
County’s
waste was
currently
being
transported
to
the
Onyx
facility, which
has capacity for
16
years.
(2/25/03
Tr.
64).
Therefore,
Ms.
Smith clearly
did
not
fully
consider the
fact that
the
Onyx
facility could provide waste disposal
to
a great deal of the area intended to be
served by the
proposed facility.
Ms.
Smith’s
conclusion regarding
criterion
i
is also
questionable because, as pointed
out
by CCOC
in its
Closing Argument and Proposed Findings of Fact, it is based
on
the premise that
landfill capacity
in
Illinois
is
decreasing,
but
in
fact, landfill capacity
in
Region
1,
where
Ogle
County
is
located,
actually
increased
from
2001
to
2002.
(C7821-22).
In
reaching
her
conclusion,
Ms.
Smith
also
made
the
erroneous
assumption
that
no
additional
capacity would
become
available
to
the
service
area despite the
fact that
siting
approval
has
been
granted
to
facilities
in
the
service
area,
including
a
facilities
in
Will
County,
Streator
and
Bartlette.
(2/25/03
Tr.
72, 96-97, 98,
123).
Furthermore, Livingston Landfill, which
serves approximately
55
of
the proposed
facility’s
service
area has
an
application
for expansion pending,
as
does
Kankakee.
(2/25/03
Tr.
103,
126).
56
70394222v1
829983
While
the Applicant
contends that
it
is
not
appropriate
to
consider
facilities
that
are
not
yet permitted,
this
is
not
necessarily
true.
In
fact,
the
appellate
court
in
Waste
Management
explained that it is
appropriate
“to consider proposed facilities,
whether in or out of the county, if
such facilities will be capable of handling a portion of the waste disposal needs ofthe county and
will
be
capable
of doing
so
prior
to
the
projected
expiration
of current
disposal
capabilities
within the county such that the needs ofthe county will continue to be
served.”
175
Ill.App.3d at
1032,
530
N.E.2d at
690.
However, Ms.
Smith
did
not
do
so
in
this
case because she did
not
adequately
consider the
Onyx
facility,
which
is
located just
a
short
distance
from
the proposed
facility, and
she failed to
consider proposed and approved facilities
that could serve
all
or part of
the
service
area.
Because
it
would
have
been
appropriate
for
Ms.
Smith
to
consider
such
facilities
in
determining
whether
a
need
existed
for the
proposed expansion,
the
City
Council
could
have
found
Ms.
Smith’s
analysis was
incomplete
because
she did
not
do
so,
therefore,
establishing that
the Applicant
did not meet its burden of establishing need.
Ms.
Smith’s
conclusion
became
even
more
questionable
because
she
contradicted
her
own opinions.
While Ms.
Smith stated that
it
is typically more expensive to
transfer waste out of
a
county than
rely
on
in-county
disposal,
the proposed
facility will
rely
on
approximately
80
percent of its waste coming from counties other than Ogle county.
(2/25/03
Tr.
99-100).
Moreover,
Ms.
Smith’s
conclusion
was properly rejected by
the City
Council
because
it
was based
on
improper considerations,
including
economics
and
competition.
Although
Ms.
Smith found that
there were
economic advantages
to the landfill (2/25/03 Tr.
72-75,
78), such
a
consideration
is
irrelevant when considering
need.
In fact,
Ms.
Smith
admitted
that
economic
benefit or revenue
is
not
a
criteria that
is to
be
considered at
all
in
a section 39.2 siting
hearing.
(2/25/03
Tr.
81). Another
improper consideration
made by
Ms.
Smith was
that
expansion of the
57
70394222vl
829983
landfill
would
lead
to
competition,
which
she thought was “a
good
thing.”
(2/25/03 Tr.
75-78)
While Ms.
Smith contends that it is
favorable to
have competition among
landfills, this
is clearly
not
the intent of the Act, which
specifically requires that pollution control facilities
be
“necessary
to
accommodate the
waste
needs
of the service
area.”
415
ILCS
5/39.2(a)(i).
If landfills were
meant
to
be competitive,
criterion
i of section 39.2(a) of the
Act
would
not
exist.
Because Ms.
Smith’s
testimony was
based at
least partly on considerations that are
not
relevant or appropriate
under the Act, her testimony was appropriately rejected by the City Council.
Even though there was not
an expert witness contradicting Ms.
Smith’s conclusion, it
was
still
appropriate
for the
City
Council
to
find
that
the
Applicant
to
establish
that
the
proposed
facility was necessary based
on the witness’ insufficient and
inappropriate conclusions.
In
Waste
Management of Illinois,
Inc.
v.
Pollution
Control Board,
234
Ill.App.3d
65,
600
N.E.2d
55
(1st
Dist.
1992), this
Board
and
the
appellate
court upheld
the Villag&s
denial
of the landfill
siting
application
based
on
criterion
i.
Even though
the
only
witness
to
testify
regarding
criterion
i
concluded
that
“the waste
transfer
station
was
necessary,”
the court
and
the Board
found
the
Village’s
contrary
finding
was
not
against
the manifest
of the
evidence
because
the
witness’
testimony
did
not
take
into consideration
sufficient
facts
and
circumstances.
234
IlI.App.3d
at
69,
600 N.E.2d
at
57-58.
Despite
the testimony
provided in
support
of criterion
i,
the appellate
court concluded
that
“the
evidence presented by
Waste Management
was
insufficient
to
show
that the waste transfer station was reasonably required by the waste needs ofthe area and
did not
adequately
address the waste production and disposal
capabilities of the service area.”
Id.
at 69-
70.
The same
is
true in
this
case because Ms.
Smith clearly exaggerated the need for the facility
by overestimating the amount of waste that would be
provided in
the service area and
by
failing
58
70394222v1 829983
to
consider facilities
that
currently
exist or will
exist
that
can handle some or all
of the service
area’s waste.
Likewise,
in
CDT,
only
the
Applicant,
CDT Landfill
Corp.
v.
City ofJoliet,
PCB
98-60
(March
5,
1998),
provided testimony regarding
the need criterion.
Despite the lack of conflicting
expert testimony,
the City
Council
found that
criterion
i
was not met,
and
the PCB affirmed that
decision.
Id,,
slip
op.
at
9-10.
This
Board
held
that
although
CDT
provided expert testimony,
“the
City has shown
that
the
testimony,
and
the RCAA
report
upon
which
the majority of the
testimony
is
based,
is
deficient.”
Id.
at
9.
The
Board
explained
that
although
it
was
not
convinced by
all
of the
City’s
arguments, it
found “enough
merit therein
so that a result opposite
to
the
City’s
decision
is
not
clearly evident,
plain
or
indisputable.”
Id.
Therefore,
the Board
concluded
that
“the
City’s
decision
that
CDT
did
not
meet
its
burden
of proof on
the
need
criterion
is
not
against
the
manifest
weight of the
evidence.”
Id.
Likewise,
in
this
case,
the
Applicant
failed
to
meet
its
burden
of proof, and
the
City
Council’s finding
on
criterion
i
is
not
against the manifest weight of the evidence.
2.
The
City
Council’s
Finding
that
the
Proposed
Facility
was
not
Designed,
Located
or
Planned
to be
Operated to Protect
the Public Health, Safety and
Welfare was
not Against the Manifest Weight of the Evidence.
Section
39.2(a)(ii)
of
the
Act
requires
that
an
applicant
for
local
siting
approval
demonstrate
that “the
facility is
so designed located
and proposed
to
be operated
that
the public
health,
safety
and
welfare will
be
protected.”
415
ILCS
5/39.2(a)(ii).
The
determination
of
whether criterion
ii
is
met
is
“purely
a
matter of assessing the credibility
of expert witnesses.”
Fairview,
198 Ill.App.3d
at
552,
555
N.E.2d at
1185.
As
long as there
is evidence to support the
City Council’s decision,
it
should
be
upheld because
it
is not the function ofthe reviewing court
to reweigh
evidence or reassess credibility.
Id.
59
70394222v1 829983
In
this
case,
there
was
testimony
from
a
geologist,
with
significant
experience
in
hydrogeology, asserting that there were problems with the proposed site, specifically that the
site
had not
been adequately
characterized geologically because of an
improper groundwater impact
assessment
and,
further,
that
the monitoring
system
was
not
adequate
to
monitor
and
protect
against possible contamination.
Although
the Applicant
somehow contends that
such testimony
was not
“contradictory,” it clearly was because it directly refuted the testimony of the Applicant’s
own witness who concluded
that
the site was protective of the public health,
safety
and
welfare
specifically based on his
geologic
hydrogeologic characterization of the site and the groundwater
monitoring system.
(3/3/03
Tr.
116-17).
It
was not
necessary for Mr.
Norris
to
specifically state
that the proposed facility did
not
meet
criterion
ii,
but
it
was
enough
for
him
to
assert
that
the
applicant
failed
to
properly
characterize
the geology
of the
site
and
had
not
created
an
adequate
groundwater
monitoring
system.
In
fact,
in
Land and
Lakes,
the
same
testimony
(that
the
applicant’s
groundwater
assessment
model
and
groundwater
monitoring
program
were
inadequate)
was provided
by
an
expert witness, and the court found that such claims were “based on interpretations and criticisms
of
technical
data
that
conflict
with
interpretations
put
forward
by
the
applicant’s
expert
witnesses.”
319
Ill.App.3d
at
53,
743
N.E.2d at
197.
The Court
held
that
local
siting authority
was
“in a far
better
position than
this
court to
resolve
this
conflict.”
Id.
As
a
result, the
court
upheld
the
county
board’s
decision
because
it
was
not
against
the
manifest
weight
of
the
evidence.
Id.
Likewise,
in
this
case,
the
City
Council
was
faced
with
contradictory
and
conflicting testimony regai’ding
criterion ii,
and it was the role of the City Council
to
resolve that
conflict.
Because there was evidence supporting the City
Council’s
decision, that decision is
not
against the manifest weight of the evidence.
60
70394222v1 829983
The testimony of Mr. Norris was clearly sufficient
to
establish that
the applicant did
not
meet
its
burden ofproof with
respect to
criterion
ii,
as
several courts
have affirmed
decisions of
local
siting
authorities
denying
siting
approval
where
there
is
testimony
that
the
applicant’s
geologic
characterization
of the
site
was
inadequate.
See McLean
County Disposal,
Inc.
v.
County
of McLean,
207
Ill.App.3d
477,
566
N.E.2d
26
(4th
Dist.
1991);
McHenry
County
Landfill,
Inc.
v.
Illinois
Environmental Protection Agency,
154
Ill.App.3d
89,
506
N.E.2d 372
(2d Dist.
1987);
A.R.F. Landfill,
Inc.
v.
Pollution Control Board,
174 Ill.App.3d
82,
528
N.E.2d
390
(2d Dist.
1988).
Consequently,
despite the
Applicant’s contentions
othenvise, the
testimony
of Mr.
Norris was clearly sufficient to establish that criterion ii was
not met.
In
re-hashing
the
testimony
of
the
various
witnesses
who
testified
with
respect
to
criterion
ii,
the
Applicant
is
doing
nothing
more
than
asking
this
Board
to
reweigh
their
credibility,
which this Board has no
authority to do.
See City ofRockford v.
County ofKankakee,
186 Ill.App.3d
303,
542
N.E.2d 423
(2d Dist.
1989).
Rather, it
is
the role of the City Council
to
weigh
the
evidence,
and
the
City
Council
clearly found
that
the Applicant
failed
to
meet
its
burden.
Even
without
Mr.
Norris’
testimony,
the
City
Council
could
have
concluded
that
the
Applicant failed
to meet
its burden of proofwith respect to
criterion ii because the conclusions of
the
Applicant’s witnesses were based
on incorrect data and improper assumptions.
For example,
when calculating the amount of contaminated
water
that would come through the final
cover, he
used an
improper slope,
and when the
appropriate slope was finally used, there was 4.6
times
as
much
water
percolating
through
the
drainage
layer
than
what
Mr.
Zinnen
had
previously
indicated.
(2/25/03 Tr.
23
1-33;
2/26/03
Tr.
186).
Furthermore, Mr.
Zinnen’s conclusion that the
landfill
was
designed
to
protect
the
public
health,
safety
and
welfare
was
based
on
the
61
70394222v1 829983
assumption
of exhumation of Unit
1;
however,
the
IEPA
has
to
provide
a
permit
before
that
exhumation
may
take
place,
which
has
not
yet
been
done.
(2/25/03
Tr.
267).
Finally,
in
reaching
his
conclusion that
the
facility was
designed
to
protect
the public
health,
safety
and
welfare,
Mr.
Zinnen
was
relying
on
the
functioning
of the
groundwater
monitoring
system.
(2/25/03
Tr.
212).
As
set
forth
by
Mr.
Norris,
such an
assumption could not
appropriately be
made because the groundwater monitoring system in place was insufficient.
(3/4/03
Tr.
113).
Furthermore,
the Applicant’s contention
that its
landfill was “designed well beyond what
is
required
by
the minimum
state standard”
(Petitioner’s Brief,
p. 30,
fn.
8) should be
rejected by
this
Board
because
the
Applicant’s
own
witness,
Mr.
Zinnen
admitted
that
several
important
features of the landfill did
not exceed standards.
For example, Mr. Zinnen testified that
the liner
proposed
to
be
used
for the
facility
is
the
most
basic
type
and
does
not
exceed
regulations.
(2/25/03
Tr.
155,
197-98).
Mr. Zinnen further testified
that
the leachate
collection
system was
the
“standard design”
used in Illinois.
(2/25/03
Tr.
167).
Therefore,
it is clear that the Applicant
and
its
witnesses were
simply
exaggerating when they alleged
that
the design
of the proposed
facility was beyond
state
standards.
As
such, the City
Council
was
free
to
reject such testimony
and properly find that the facility was not
adequately designed to
protect the public health, safety
and welfare.
In support
of its
assertion that the facility was
located
to
protect
the public
health
safety
and
welfare,
the
Applicant
repeatedly cites
the testimony of Mr.
Stanford,
who
stated that
the
facility was
an
excellent location
for a landfill
and
that
the site geology
and
hydrogeology were
the
best
he
had
ever
seen.
However,
the Applicant
failed
to
point
out
Mr.
Stanford’s
limited
experience
in reviewing the geology of landfills, which
makes
his
testimony
much
less
reliable.
Furthermore, the
fact that
Mr. Stanford
concluded
that the
site’s
characterization
was
the
“most
62
7O394222~~1
829983
extensive”
he
has
ever
seen
was
refuted
by
Mr.
Norris
who
explained
that
although
the data
available
for characterization
may
have
been
more
than
that
available
for other
sites,
that
does
not mean that the site was well-characterized or properly characterized.
(3/3/03
Tr.
143).
This is
especially true because Mr.
Stanford
did not
even use site-specific data in
the model
at
all
times.
(3/4/03
Tr.
59).
For example, Mr.
Stanford did
not use actual permeabilities in determining how
fast
contaminants would
move
under the site but
instead assumed that
contaminants would move
at the same speed
throughout the entire system.
(3/3/03
Tr.
151; 3/4/03
Tr.
59-60).
Furthennore,
Mr.
Stanford’s
credibility
and
opinions
were
called
into question
because
although
he
testified
that
he
used “conservative assumptions”
in
his
groundwater impact model
(3/3/03
Tr.
120-124),
his
own testimony
revealed
that
to
be
untrue.
In
fact,
Mr.
Stanford’s
assumptions
in
the model
were
less
conservative
than
Mr.
Zinnen’s because
in
the model,
Mr.
Stanford
assumed
only
two
pinhole
defects
in
the
HDPE
liner
per
acre,
while
Mr.
Zinnen
assumed
twice
as
many
in
his
model.
(3/3/03
Tr.
150).
Mr.
Stanford
did
not
supply
any
justifiable
reason
for decreasing
the amount of defects assumed
in
the
liner.
Furthermore, Mr.
Stanford’s model was not
“conservative” because as it pointed out
by CCOC (C7825), (3/3/03
Tr.
151) it did
not assume any
leaks in the clay liner.
The
Applicant
spends
a
great deal of time
in
its brief attacking
the
credibility
of Mr.
Norris,
which
is
clearly
inappropriate because
this
Board
is
not
in
a
position
to
reweigh
the
credibility
of
witnesses.
See
City
of
Rockford,
186
Il1.App.3d
303,
542
N.E.2d
423.
Furthermore,
the Applicant
takes
Mr.
Norris’
testimony
out of context
and
twists
it
to
support
their assertions.
For example, the Applicant provides a quotation ofMr.
Norris’ testimony
where
he
adniitted
that
the data
available
for characterization
of the
site was
more than
he
has
ever
seen.
However, the
Applicant
failed
to
point
out
that
Mr.
Norris
stated that
the availability
of
63
?0394222v1
829983
such
evidence
does
not
mean
that
a
site
is
well-characterized
or
properly
characterized
and
specifically found this site was not.
(3/4/03 Tr.
143).
Finally,
the Applicant
attempts
to
downplay
Mr.
Norris’
concems about
the inadequate
characterization
of
the
site
and
inadequate
monitoring
system.
However,
it
is
entirely
disingenuous
for the
Applicant
to
do
so
because Mr.
Stanford
testified
that
a
hydrogeologic
investigation
is
necessary
to
assess
the performance
of
the
proposed
landfill
with
regard
to
potential
impacts
on
groundwater
quality.
(3/3/03
Tr.
59).
Therefore,
it
is
very
important
that
site was not properly characterized.
Furthermore,
Mr.
Norris’
concerns
are significant because
they directly refute the bases
upon
which
Mr.
Stanford
concluded
that
the facility was
located
to
protect
the
public
health,
safety
and
welfare.
This
is
true because Mr. Stanford concluded
that the facility met criterion
ii
because:
1) it
is
underlined by
the Tiskilwa formation,
which
serves as an
aquitard, 2)
the upper
aquifer was separated
from
the
sandstone
aquifer,
3)
the
groundwater moves
slowly
under
the
site, and 4) the monitoring system
is adequate to
monitor for problems.
(3/3/03 Tr.
116-17).
Mr.
Norris found each of these conclusions to be
unfounded because he believed:
1) that
the Tiskilwa
layer was not
impermeable and retardant, 2) that the flow systems were
more interconnected
than
the Application showed,
3) that the
flow was not
as slow as Mr.
Stanford calculated, and
4) that
the
monitoring
program
did
not
adequately
monitored
for potential
escapes
of contaminants.
(3/4/03
Tr.
70-78,
113,
153).
Therefore,
this
is
a
clear
battle
of the
experts,
which
was
appropriately decided
by the
City
Council.
See
Fairview,
198
Ill.App.3d
at
552,
555
N.E.2d
at
1185.
In addition to
finding that the location and
design of the facility was not protective ofthe
public
health,
safety
and welfare,
the City
Council
could
also have appropriately concluded that
64
70394222v1
829983
the plan of operations for the facility was
not
protective ofthe public
health,
safety
and welfare
based on the testimony ofMr. Gelderloos.
Although he testified that
the facility had programs
in
place
to
deal
with
litter,
odor, fire,
dust,
spills,
accidents
and
load-checking
the City
Council
could have found that
these programs
were
inadequate and could have concluded
that
based
on
the substantial problems that the operator has had
in the past
with violations
and deficiencies,
the
facility would not be operated in
a way that would protect the public health, safety
and welfare.
As
set
forth
above, there was more
than
enough
evidence
to
support
the
City
Council’s
conclusion
that
the
location,
design
and
plan of
operations
were
not
protective of the public
health,
safety
and
welfare.
Therefore,
the
City
Council’s
finding
regarding
criterion ii
is
not
against the manifest weight of the evidence.
3.
The
City
Council’s
Finding
that
the
Facility
was
not
Located
so
as
to
Minimize Incompatibility with the Character of the Surrounding Area
and to
Minimize the Effect on the Value of the Surrounding Property
is
not Against
the Manifest Weight of the Evidence.
Section
39.2(a)(iii)
requires
that
an
applicant for local
siting
approval establish
that
“the
facility
is
located
so
as to
minimize
incompatibility
with
the
character of the surrounding area
and
to
minimize
the
effect
on
the value of the surrounding property.”
415
ILCS
5/39.2(a)(iii).
Fulfilling this
condition requires an
applicant to demonstrate more than minimal
efforts
to reduce
the
landfill’s
incompatibility.
Waste
Management,
123
IlI.App.3d
at
1090,
463
N.E.2d
at
980.
Rather, an
applicant must
demonstrate that
it has done
or will
do
what
is reasonably feasible
to
minimize
incompatibility.
Id.
Although
an
applicant
may
introduce
some
evidence
on
minimization
of incompatibility, such evidence may be
insufficient to
establish that
cnterion
iii
is met.
Id.
Two witnesses testified
regarding criterion iii, Christopher Lannert and
Peter Poletti.
Mr.
Lannert’s
credibility,
like
Ms.
Smith’s,
was
questioned
because
he
has
testified
in
35
landfill
65
703942224
829983
siting hearings, and in
34
of those hearings,
he
testified
that the facility was
compatible
with
the
surrounding area.
(2/24/03
Tr.
86).
In the
one case
in
which
he
testified
that
a
facility was
not
compatible,
he was paid by an objector to do so.
(Id.)
He also
admitted that he
was hoping
to do
the landscaping
for the site if it was
sited.
(2/24/03 Tr.
97-98).
Therefore,
Mr. Lannert
had
a
direct interest in providing testimony that would
be supportive of the application.
It
was
entirely
reasonable
for the City Council
to reject
Mr.
Lannert’s conclusion that
the
facility
was
located
to
minimize
incompatibility
with
the
character
of
the
surrounding
area
because as pointed out
by CCOC,
Mr.
Lannert’s conclusion was based on the presence of a berm
to
the east of the site
to
shield
the
site.
(C7829).
In
fact,
Mr.
Lannert
stated that
he
placed
“substantial
reliance
on the berm to
minimize the impacts
and make the facility compatible with
the surrounding area”
and
admitted that
it was a “critical component”
in reaching his
conclusion.
(2/26/03
Tr.
190-9 1).
However, Mr.
Lannert admitted that
the berm was located off-site and not
within
the
facility
boundary;
therefore,
the
City
Council
has
no
ability
to
control
the
size,
maintenance
or completion
of that
berm.
(2/24/03
Tr.
110).
Because Mr.
Lannert
placed
such
reliance on
a
landscaping
structure that
may never even
exist
on
the
site, the City Council was
clearly within its
rights to
find that this
criterion was not met.
Furthermore,
it
is
clear that
Mr.
Lannert
skewed his
testimony to
emphasize the facts that
supported
his
position,
while
de-emphasizing
facts
that
did
not.
For
example,
Mr.
Lannert
testified
that he
believed the landfill was compatible with the surrounding area because much
of
the property immediately
surrounding the facility
is zoned
agricultural
and
industrial.
(2/24/03
Tr.
74).
However, on cross-examination, Mr. Lannert
admitted
that there are approximately
100
residential properties within a mile ofthe facility.
(2/24/03
Tr.
93).
66
70394222v1
829983
It was also
reasonable
for the City Council
to be cautious of Mr. Lannert’s testimony that
there
was minimal
impact
to
the
surrounding area because
the photos
that
he
provided at
the
siting
hearing
did
not
present
an
accurate picture
of the
facility because
they
were
from
one
quarter of a mile
away
from
the
site even
though
there were
houses closer than that
from which
photos could have been taken.
(2/24/03 Tr.
88,
92).
He
also
admitted that
no photos were
taken
from
backyards of homes
in
the Village of Creston.
(Id.
24,
94).
Therefore,
the City Council
may have concluded that the Applicant was presenting a skewed picture ofthe proposed landfill.
Mr.
Lannert
also admitted that he
considered compatibility by
looking only
at a one-mile
radius
surrounding the proposed
facility even
though
other
studies
have
examined compatibility
up to
five
miles
from
a proposed
site.
(2/24/03
Tr.
101).
He also
admitted that the landfill
was
the biggest
landform
in
Ogle
County
and
may
be
the highest ground
elevation
in
the County.
(2/24/03
Tr.
108-10).
Based on the massive
size of the facility,
it was clearly reasonable
for the
City
Council
to
find
that
the
facility
was
not
located
to
minimize
incompatibility
with
the
character
of the
surrounding
property,
especially
based
on
an
inadequate
study
that
did
not
properly examine
a
large
enough
area.
See
Waste
Management,
123
Ill.App.3d
at
1089,
463
N.E.2d at 979.
Furthermore,
the
testimony
of
Mr.
Poletti
was
also
questionable
because
out
of the
twenty to
twenty-five
times that
he
has testified
in
a
landfill
siting hearing, he
has always
found
that
a
facility is
located to minimize
the effect on the value of the surrounding property.
(2/24/03
Tr.
146).
Therefore,
the City Council
could
have
reasonably
found that
Mr.
Poletti’s
testimony
was not
credible
because
no
matter
what
the
property
values
showed,
he
has
testified
that
a
proposal meets criterion iii.
67
70394222v1
829983
In determining whether there was
a
negative effect on the value of surrounding property,
Mr.
Poletti
created
the target
group and
control group but,
as was
noted
by
CCOC, no
reason
or
justification was provided for concluding that the current facility only impacted property within a
mile
and
a
half from the
site.
(C7829).
Mr.
Poletti
also
seemed
to
skew
the data by
removing
various
properties
from his
study
based
on
certain characteristics without explaining why
such
characteristics
would
somehow
adversely
affect
his
results.
Despite
the
skewed
data,
Mr.
Poletti’s
study
revealed
that properties nearest the landfill
were
selling for $1.40
less per square
foot
that those
further away.
(2/24/03
Tr.
137-38).
While Mr.
Poletti
concluded that there
“was
no
statistical
difference between those two
averages” (2/24/03
Tr.
138), a
1500 square
foot home
located
within
a
mile of the facility would
be
worth $2,100
less
than if it were
located
further
away
from
the facility.
Based
on
such evidence, the
City
Council
could have reasonably found
that the facility was not designed to minimize the effect on the value ofthe surrounding property.
Additionally,
Mr.
Poletti’s conclusion that the facility will not
negatively impact property
values
is
questionable
because based
on
appreciation
statistics,
the
two
most
recent
sales
in
the
target
area
had
the
lowest
rate
of appreciation.
(2/24/03
Tr.
167).
In
fact,
a
review
of the
appreciation rates ofthe homes
in the
target area revealed that each sale
had
a lower appreciation
than
the
last.
(2/24/03
Tr.
168-69).
Therefore,
it
was
reasonable
for
the
City
Council
to
conclude
that
the
property
values
in
close
proximity
to
the
landfill
would
continue
to
be
negatively impacted based on the expansion of the facility.
The Applicant points
out positive findings made by
Mr. Poletti regarding property values
to
attempt
to
establish
that
criterion
iii
was
met;
however,
the Applicant
fails
to
provide the
whole
story.
For example,
the Applicant
notes
that Mr.
Poletti
found a
3
higher appreciation
rate in property in
the target
area versus the control area;
however,
the Applicant fails
to mention
68
70394222v1
829983
that Mr.
Poletti
admitted
that no
conclusion could
be
drawn from
that study because the number
of houses
analyzed in
the
target
group
was
insufficient.
(2/24/03
Tr.
167).
Furthermore, the
Applicant
selects specific
properties near the landfill
that
have increased
in
value
to
support
its
conclusion that
such properties
are
not
adversely
affected by
the landfill.
(Petitioner’s.
Brief,
65).
One of the
properties
specifically
mentioned
by
the
Applicant
was the
“Rich
house”
even
though
as pointed
out
by CCOC,
the “Rich house” was specifically excluded
from
Mr.
Poletti’s
study because of its
size (C7830).
Finally,
Mr.
Poletti’s
study
failed
to
take into
account
the
effect of the expansion
of the
facility, which
would
result
in
a
four-fold
increase
in
the
facility’s
size
and
nearly
a
ten-fold
increase in its
capacity.
It
is well
settled
that
an Applicant
cannot establish compatibility
based
on
a
pre-existing
facility.
Waste Management,
123
Ill.App.3d
at
1088,
463
N.E.2d at
979.
In
this
case, the evidence suggested
a
downward
trend
in
property values
since the application
for
expansion
was
filed
because
houses
sold
in
the
target
area
after
the
first
application
for
expansion was filed were
significantly
lower than the average.
(2/24/03 Tr.
172).
By failing to
recognize
and
acknowledge
such a downward
trend, the City Council
may have concluded
that
the
Applicant
failed
to
adequately
analyze
the
impact
on
property
values
and
has
failed
to
establish
that the effect on values ofsurrounding properties will be minimized.
Just as in this
case, in
CDT,
PCB 98-60, there was no expert testimony to contradict
a real
estate
witness’
testimony
that
a
proposed
landfill
expansion
would
not
negatively
impact
property values.
Nonetheless, the
IPCB
upheld the City Council’s finding
that criterion
iii
was
not met.
In doing
so, the IPCB
noted
that although
the difference in
appreciation
in houses near
the landfill and those removed from the landfill were statistically insignificant,
one study showed
69
70394222v1 829983
that
the rate of appreciation
in
houses near the
landfill
was less,
by under
one percent.
Id.,
slip
op.
at
16-17.
Based on such evidence, the Board concluded:
Sufficient
evidence exists
on the record
so that the City could
find incompatibility
with the
surrounding area and
a
negative effect
on property values.
A review of
the record indicates that
the City could
find that
CDT
did
not
demonstrate
it has
done or will do
what is reasonably feasible to minimize
incompatibility
and effect
on
property values.
An opposite conclusion
is not clearly evident
or indisputable
from a review of the evidence.
The Board, thus, concludes that the City’s
decision
on criterion (iii)
is not against the manifest weight of the
evidence.”
Id.
at
17.
As the evidence showed
in
CDT,
the evidence in this case establishes that the property
nearest the
landfill
is
being negatively impacted
and
the Applicant
has done
nothing
to
reduce
such impacts.
Therefore, the City council’s conclusion regarding criterion
iii
was not against the
manifest weight of the evidence.
4.
The
City Council’s Finding
that
the Traffic Patterns
to or
from
the Facility
are
not so Designed to Minimize
the
Impact
on Existing
Traffic Flow
is
not
against the Manifest
Weight ofthe Evidence.
Section 39.2(a)(vi) of the Act requires
that the applicant establish that
“the traffic patterns
to
or
from
the facility
are
so
designed
as to
minimize
the impact
on
traffic
flows.”
415
ILCS
5/39.2(a)(vi).
Mr.
Werthman
admitted that his conclusion
was based
on an assumption that there
would be a widening and improvement of Mulford Road and 38,
allowing for a left turn and right
turn
lane,
which
was
planned
by
the
IDOT,
but
was
not
yet
in
existence
at
the
time
of the
hearing.
(2/24/03 Tr.
248).
Mr. Werthman conducted
a traffic
study
in which
he analyzed traffic based on the facility
taking
3,500
tons of garbage each
day.
(2/25/03 Tr.
199, 220).
However, the facility does not
have
a
yearly or daily tonnage cap and
could possibly
take up
to
5,000
tons
of garbage or more
each day.
(2/25/03
Tr.
220).
Therefore,
the
traffic
analysis was
clearly
not
“conservative”
as
suggested
by
the Applicant.
(Petitioner’s
Brief,
p.
71).
Because the
traffic
analysis
was
not
70
70394222v1 829983
conducted
assuming the highest possible traffic volume, that
analysis
and its
conclusions are not
reliable, as the City Council could have appropriately found.
The
City
Council
was
free
to
conclude
that the
traffic
study was
also
unreliable because
the applicant
supplied
the
information regarding the
number of trucks
exiting
and
leaving
the
facility,
the traffic
patterns of those
trucks,
the number of employees
working at the proposed
facility
and
the
peak
hour
distribution
of traffic
to
the
facility.
(2/24/03
Tr.
223-25,
244).
Because Mr.
Werthman’s
conclusion was based
on
information provided by the applicant,
it was
inherently unreliable.
SeeA.R.F. Landfill,
174 Ill.App,3d 94,
528 N.E.2d at 398.
Furthermore,
as
CCOC
pointed
out,
Mr.
Werthman’s
study
was
arguably
inadequate
because he
did not
consider construction traffic
on the
site even though
there will be
significant
additional
truck
traffic
due
to
construction.
(C783 1).
In
fact,
Mr.
Zinnen
testified
that
approximately
665,000
cubic yards ofmaterial will have to be brought onto
the site.
(2/25/03
Tr.
235-36).
Clearly,
those
trucks
would
add
to
the
traffic
at
the
site
and
should
have
been
considered.
Furthermore,
Mr.
Werthman’s
study
fails
to
specifically
calculate
additional
truck
traffic
that
will
result
from the intermodal
facility that
is being developed
in
Rochelle.
(2/25/03
Tr.
216-17).
Finally,
Mr.
Werthman’s
study
was
insufficient
because
he
purposely
did
not
perform
an
analysis
during
snowy
or
rainy
conditions
even
though
traffic
conditions
usually
degrade with snow and/or rain.
(2/25/03
Tr.
215).
Directly contradicting his
opinion that criterion vi
was met,
Mr. Werthman
admitted
that
the
facility will,
in
fact,
have
an
adverse
effect
on
traffic
in
the
area because
the presence of
landfill traffic and the road improvements necessary to accommodate
such traffic will downgrade
the level ofservice
at the intersection of Route 38
and Mulford from
a grade
“C”
to
a
grade
“D,”
the lowest acceptable level.
(2/25/03
Tr.
240-42).
Mr. Werthman admitted that
a
lower level of
71
70394222v1 829983
service generally means that
drivers will have to
wait longer at the intersection (2/25/03
Tr.
242-
43), which
could
lead
to
more frustrated and
impatient
drivers
and
could,
in
turn,
lead
to
more
accidents and less safe roadways.
While
no
court has
specifically
identified what
is
required
to
“minimize the
impact
on
existing
traffic
flows,”
the
Board
has
found
that
the
criterion
is
met
where
the
evidence
establishes
that traffic
flows will not
increase.
CDT,
slip op.
at
19.
In this case, however, there
was no evidence presented that traffic
flows will not increase, as they clearly will increase based
on the over ten-fold increase in vehicles entering and exiting the proposed facility.
Additionally,
it is clear that traffic will not be minimized because despite Mr.
Werthman’s
belief that
a stoplight
would be
beneficial
at the intersection of Mulford Road
and
Route
38
to
reduce the risk ofaccidents
and
help the flow
of traffic,
no stoplight
will
be
installed.
(2/24/03
Tr.
207-08,
212).
Consequently,
the
impact
on
traffic
is
not
minimized,
See Fairview,
198
Ill.App.3d
at
554-55,
555
N.E.2d
at
1187
(finding
that
criterion
ii
was
satisfied
where
no
testimony was presented suggesting that traffic signals or signs should be
installed).
Finally,
the
City
Council’s
decision
regarding
criterion
vi
was
not
against the manifest
weight
of the
evidence
because,
in
addition
to
the
testimony
from
Mr.
Werthman,
the
City
Council
also
heard
numerous
public
comments
from
community
members
concerned
about
increased
traffic.
According
this
Board
in
CDT,
those
public
comments
could
be
considered.
CDT,
slip
op.
at
6.
Furthermore,
the
City
Council
members
were
free
to
use
their
own
knowledge and familiarity with local traffic conditions to determine that criterion vi was not met.
Hediger
v.
D&L
Landfill,
PCB
90-163
(Dec.
20,
1990).
Based
on
such
evidence
and
the
unreliable
report created
by
Mr.
Werthman,
the
City Council
appropriately concluded
that
the
72
70394222v1 829983
Applicant
failed
to
establish
compliance
with
criterion
vi,
and
that
decision
is
not
against the
manifest weight ofthe evidence.
V.
CONCLUSION
The Respondent, City Council
of the City ofRochelle, Illinois,
respectfully requests
that
this
Board
affirm
the
Respondent’s
denial
of siting
approval
and
find
that
the
hearing
was
fundamentally fair.
Dated:__________________
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, IL
61105-1389
815-490-4900
Respectfully Submitted,
On behalf ofthe City Council
ofthe City of
Rochelle, Illinois, Respondent
By: Hinshaw & Culbertson
~ø~
f/4~
Richard S.
P&ter
One ofIts Attorneys
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