vs.
THE
CITY
OF KANKAKEE,
ILLINOIS,
CITY
COUNCIL,
TOWN
AND COUNTRY
UTILITIES,
NC.
and KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
Respondents,
vs.
THE
CITY
OF KANKAKEE,
ILLINOIS,
CITY
COUNCIL,
TOWN
AND COUNTRY
UTILITIES,
INC. and KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
Respondents,
)
)
)
WASTE
MANAGEMENT
OF ILLINOIS,
INC.,
Petitioner,
)
)
vs.
)
)
THE CITY
OF KANKAKEE,
ILLINOIS,
CITY
)
COUNCIL, TOWN
AND
COUNTRY
)
UTILITIES, NC.
and KANKAKEE REGIONAL)
LANDFILL,
L.L.C.
)
)
Respondents.
)
)
)
PCB 03-33
(Third-Party Pollution
Control Facility
Siting
Appeal)
PCB
03-35
)
(Third-Party
Pollution
Control Facility
)
Siting
Appeal)
(Consolidated)
COUNTY OF
KANKAKEE
and EDWARD
D.
SMITH, STATE’S
ATTORNEY
OF
KANKAKEE
COUNTY,
Petitioners,
£
CE
IV
£
D
rrFC
OF.C
.
jr
No.
PCB
03-3 1
pollutIon
control
Board
(Third-Party
Pollution
Control
Facility Siting
Appeal)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
BYRON
SANDBERG
Petitioner,
RESPONSE
OF
THE
COuNTY
OF
KANKAKEE
AND STATE’S
ATTORNEY
EDWARD
D.
SMITH
TO
POST-HEARING
BRIEFS
OF
APPLICANT
AND
CITY
OF
KANKAKEE
NOW
COME Defendants,
COUNTY
OF
KANKAKEE
and
STATE’S
ATTORNEY
EDWARD
D.
SMITH,
and
in
response
to
the Post-Hearing
Briefs
of Applicant
and
City
of
Kankakee,
state
as
follows:
I. INTRODUCTION
The
Applicant
admits
that “there
is no
question in
the record
that
the County
wanted
an
expansion
of
the
Waste
Management
facility”
rather
than additional
non-contiguous
landfills
being cited
within
the County.
(Applicant’s
Brief,
38).
Therefore,
the
Applicant
has admitted
that
the application
is
inconsistent
with
the
intent
of
the
Solid
Waste
Management
Plan
as
amended.
The
Applicant
is correct
that
the Kankakee
County
Board
passed
by
overwhelming
majority
the
October
9,
2001
and
March 12,
2002 amendments
to the
Solid
Waste
Management
Plan.
These amendments
removed
any question
that it
was the County’s
Plan
to answer
the need
for additional
landfilling
capacity
in the County
that
is expected
to arise
around 2005,
while
avoiding
a
proliferation
of
non-contiguous
landfills
in the
County,
by
planning
that
the
present
Kankakee
County landfill
be
expanded,
rather
than an entire
new
landfill
being
erected.
The
owner of
the present
landfill
has
expeditiously
sought
that expansion
and
Section 39.2
hearings
have
now taken
place
on the expansion
application.
The Town
and
Country
application
is
obviously
inconsistent
with
the County
Plan
and,
therefore,
the City
Council
finding
as to
Criterion
viii
should
be
reversed.
As to the
fundamental
fairness
issues,
the briefs
of the
Applicant
and the
City
fail to
mention
the fact
that individuals,
who had
standing
to appear
at the
City
hearings,
such
as Mr.
Darrell
Bruck,
were
erroneously
informed
by
the
City Clerk
that they
could
not appear
as
a party
2
in the landfill
siting
proceedings
after June 12,
2002. These same
individuals
were
then
barred
from entering
the room
on June 17, 2002
by the
City Police to hear
the announcement
that
the
actual deadline
for signing up
to
appear as
a
party was
that evening
and even if the
public
could
have
heard
the announcement
they could
not
get
past the
police and into the hearing
room
to
sign
up.
The
City and
the
Applicant
have also
failed
to address
the fact that numerous
appearances
were
filed
with the City
Clerk by June
12, 2002,
such as those
filed
by Ms.
Patricia O’Dell,
but
these
people
were
not
recognized
as
parties.
Therefore,
the Applicant
and the
City
have
completely failed
to address the fact
that members
of the public
were
refused
the opportunity
to
appear
as
parties in this
siting hearing. This
brief will
address
these
issues
and respond
to many
of the assertions
made in the Applicant’s
and
City’s
briefs.
II.
MOTION
TO STRIKE
BRIEF
OF CITY OF KANKAKEE
On November
27, 2002,
the
undersigned
counsel
received by telefax
a copy of
the
Applicant’s brief which
was received
by hard
copy in the Hinshaw
& Culbertson
Rockford
Office on
December 2, 2002.
However,
the
brief of the
City of
Kankakee
was not received
by
the undersigned counsel
until December
2, 2002.
Proof of service for
the
City
of
Kankakee
brief
indicates
that it was
deposited in regular
mail
by 5:00 p.m.
on
November
27, 2002 though
it was
hand delivered
to the Illinois
Pollution
Control
Board.
(IPCB). (See Respondent
City
of
Kankakee’s brief,
Proof of Service).
The Hearing
Officer
made
it abundantly clear that
the
mail
box
rule
did not apply and
that each
party had
to
receive the briefs by
November 27, 2002
in
light
of the abbreviated
time
for filing a response
brief which
was due just eight (8)
days after the
initial brief
was to be filed, so
that the
parties could receive
the pleadings before
the
Thanksgiving
holiday
weekend.
The City
of Kankakee did not file
a
Motion for
Leave
to File its
brief
late and, therefore,
the brief
should be stricken.
3
III. IN
ITS
INTRODUCTION
THE
APPLICANT
IMPROPERLY
SUGGESTS
THE
COUNTY
OF
KANKAKEE
DOES
NOT
HAVE
STANDING
TO
APPEAL
THE
CITY
OF
KANKAKEE
DECISION.
With
very little
explanation,
the
Applicant
quotes language
in its
introduction
from
the
case
of The
City of
Elgin
v. County
of
Cook,
Village
of Bartlett
v. Solid
Waste
Agency
of
Northern
Cook
County,
169 I1l.2d
53,
70,
660
N.E.2d
875 (1996),
which
held
that
“extraterritorial
third-party
challenges
to
the
siting
decisions
to the courts
of this
State
are
incompatible
with
the purposes
of
this Act.”
(See Applicant’s
Brief, 2).
The
City
ofElgin
case
is
wholly
inapposite
to the case
at
bar as the
County
of Kankakee
is certainly
not
an
“extraterritorial
third-party”
challenger
to
the
City
of
Kankakee
proceedings.
The
very landfill
at
issue
will
be
placed
within
Kankakee
County.
The IPCB
(IPCB)
landfill
siting
hearing
rules
explicitly
provide
that
“any
person
who
has
participated
in the
public
hearing
conducted
by
a unit
of local
government
and is
so
located
as to
be
affected by
the
proposed
facility
may file
a
petition for
review
of the
decision
to grant
siting.”
35
Ill.Adm.Code
§107.200(b)
(2002).
Obviously,
the
County of
Kankakee
is affected
by the
proposed
facility
and the County
not
only
participated
as defined
by
the IPCB’,
but
was
a
registered
party
to
the Section
39.2 hearing.
Furthermore,
anyone who
filed a petition
for
review
is
a
party
to the
proceeding.
35
Ill.Adm.Code
107.202(a)(1)(2002). Finally,
the IPCB
rules
provide
that
“where
the
interest of
the public
would
be served,
the Board
or
Hearing
Officer
may
allow
the
intervention
by..
.the State’s
attorney
of the County
in which
the facility
would
be
located.”
35
IIl.Adm.Code
107.202(b)(2002).
Therefore,
even
if
the County
had not
been a
The IPCB
distinguishes
between
mere participation
and acting
as a party.
107.404. A
participant
may offer
comment
at a
specifically
determined
time, but may
not cross-examine
witnesses
for either
party. Whereas
a
party
will have
all
rights of
examination
and cross-examination
relevant
in any
judicial proceeding.
35
I11.Adrn.Code
107.404.
4
participant
or a party
in the
underlying
case,
and
even if the
County had
not filed
a petition
for
review,
which
it did,
it could
still
intervene
in the instant
proceedings.
The Applicant’s
quotation
and
citation
to the Elgin
v. County
of
Cook
case is completely
irrelevant
to the
case
at bar
and was
apparently
done
merely to confuse
and
suggest
to
the
IPCB
that it is
inappropriate
for a County
to
oppose the
decision
of a city within
the county
to approve
a siting application.
In no way
does
the Elgin
case contain
such
a
ruling.
On the contrary,
in
Elgin
the landfill
was sought
to
be sited
in unincorporated
lands
of
Cook
County
(which 39.2(h)
explicitly
exempts
from the
statute),
and
the
objectors
were incorporated
cities
near
the
proposed
landfill.
In this case,
the County
is
not an
“extraterritorial”
objector
and instead
the landfill
is
proposed
to be
erected
within
the
County’s
territory
of
which
the
County
has
the
primary
responsibility
for planning
for solid
waste
disposal.
IV. THE
STANDARD
OF REVIEW
FOR CONSISTENCY
WITH
THE
SOLID
WASTE
MANAGEMENT
PLAN
IS DENOVO.
In
this Introduction
the
Applicant
concedes
that
“with
regard
to the
application’s
consistency
to the County’s
Solid
Waste
Management
Plan..
.the issue
does
arguably
present
a
mixed
question
of fact
and
law.”
(Applicant’s
Brief,
p
2).
However,
immediately
after
the
introduction
in
the Standard
of Review
section,
the Applicant
argues
that the
manifest
weight
of
the evidence
standard
applies
to all nine
criteria.
(Applicant’s
Brief,
p
4). Indeed,
the Applicant
then goes
on to
argue
that the IPCB
may
not employ
its own
interpretation
of the
Solid Waste
Management
Plan
and
that the
City’s interpretation
is not against
the
manifest
weight
of the
evidence.
(Applicant’s
Brief,
p
38).
The Applicant
is
wrong.
As explained
in the Petitioner’s
Brief,
if the
Applicant is
correct
that
the determination
of
whether the
application
is consistent
with
the
Solid Waste
Management
Plan
is a mixed
question
of
law
and fact then
the
“clearly
erroneous”
standard
should
be applied
which
is a middle
ground
5
between
the deferential
manifest
weight
of the evidence
standard
and
the de novo
standard.
(See
Respondent’s
Brief,
p
61, (citing
Land
and Lakes
v. Illinois
Pollution
Control
Board,
319
Il1.App.3d
41,
48;
743 N.E.2d
188,
193
(3rd Dist.
2000)).
However,
as explained
in
Respondent’s
Brief, there
is no factual
issue
as to
what language
is contained
in the
Solid
Waste
Management
Plan
as the
Applicant
does not
dispute that
amendments
were
made
to the Plan
in
October
of 2001 and
March of
2002.
Furthermore,
the decision
of
the City
Council
explicitly
acknowledges
that
the
County’s
Solid
Waste
Management
Plan
was
amended
on
October
9,
2001
and March
12,
2002.
(C3283-3284).
The
City
Council’s
findings
also
acknowledge
that
Dr.
Schoenberger’s
testimony
regarding
the alleged
illegality
of
the
Kankakee
County
Solid
Waste
Management
Plan
as amended
was
stricken
and not
considered
by the City
Council.
(C3284).
Therefore,
the only issue
that
is to be
decided
by
the IPCB
is whether
the
application
is
consistent
with
the
Kankakee
County Waste
Management
Plan
as
amended.
This
is a pure
legal
question
of
statutory
interpretation
of the
Plan.
When
an issue
is
a
pure
question
of law
it is
subjected
to de
novo
review.
Land
and
Lakes,
319
Ill.App.3d
at
48
(citing
Branson
v.
Department
of
Revenue,
168
Ill.2d 247,
659
N.E.2d
961
(1995)).
Therefore,
the standard
of
review as
to the
issue of
Criterion
viii in this
case should
be de
novo.
V.
THE
RECORD
IS CLEAR
THAT
THE CITY
OF KANKAKEE
DID NOT
HAVE
JURISDICTION
TO
HEAR THE
SITING
APPLICATION.
The
Applicant
acknowledges
that
“the
only evidence
of notice
in
the local
siting
hearing
record
is the
affidavit
with
attachments
of Tom
Volini,
President of
Town
and Country
Utilities,
Inc.
and
Kankakee
Regional
Landfill,
LLC offered
and admitted
as
Applicant’s
Exhibit
2.”
(Applicant’s
Brief,
p
4).
Though
the Applicant
makes
this concession
it
also makes
the
erroneous
statement
that
the
County
never “offered
evidence
or
raised
any
notice
or
6
jurisdictional
issues
during the siting
hearing process.”
First, it is undeniable
that
it is the
burden
of the Applicant
to establish
jurisdiction.
(Ogle County
Board
v. Pollution
Control
Board, 272
Ill.app.3d
184, 649
N.E.2d
545
(2d Dist.
1985);
ESG Watts
v. Sangamon
County Board, PCB
98-
2 (June
17, 1999). Second,
the
record
clearly indicates
that the
County fully
briefed the issue
in
the Proposed Finding
of Facts and
Conclusions
of Law which
was the first
opportunity
to make
any argument or propose
findings.
Paradoxically,
the Applicant
admits that
Kankakee
County made
a detailed
argument
alleging
lack
of jurisdiction
in
its
Proposed
Findings
of
Fact to the Kankakee
City Counsel.
(Applicant’s Brief,
5). Obviously,
its assertion
that the
issue
was
never brought up during
the
siting hearing process
is
irreconcilable
with
the record and
by its admission
that
a detailed
argument
was raised
in the proposed
findings
of fact and conclusions
of law
A.
The
Applicant
has Admitted
that Every
Owner of Parcel
13-16-23-400-001
was not
Served Notice
as Required
by Section
39.2(d).
2
The Applicant
admits that
Mr. Tom Volini
identified
the
owners of Parcel
13-16-23-400-
001 as Gary
L. Bradshaw,
James R.
Bradshaw,
J.D.
Bradshaw, Ted A. Bradshaw,
Denice
Fogel
and Ms. Judith Skates
at
22802
Prophet
Road,
Rock Falls,
Illinois. However,
the
only return
receipt
for
this
property
was one
addressed to
a Judith A. Skates at
203
South Locust,
Onarga,
Illinois.
(Applicant’s Brief,
p
7-8). The
only
explanation
that
the Applicant
offers
for failing
to
serve each owner
is their citation
to Wabash
and Lawrence
Counties Taxpapers
and
Water
Drinkers
Association v.
Pollution Control
Board,
198 Ill.App.3d
388, 555 N.E.2d
1081,
(5th
2
The County’s initial
brief contains a detailed
argument
that
the Applicant should
not have been allowed
to
attempt
to
correct its failure to establish
jurisdiction
at the
City
of Kankakee proceedings
during the Pollution
Control Board hearing
and that
the Hearing Officer’s
allowance of additional
evidence on jurisdiction
was
erroneous. The Applicant’s
brief
contains
no argument
concerning that Hearing
Officer’s ruling
and,
therefore, the
County will
make no further
comment
on that issue and
stand by the arguments
raised in its
initial
brief.
7
Dist.
1990). However,
if the
Wabash case
is followed
this matter should
be disposed in
favor of
Kankakee
County
and
the Applicant.
The
Wabash case explicitly
held
that “[i]t
is true that only
one heir received
notice, but
only that heir was listed
by name
and
address
in the tax records
to receive
the tax
statement
on
behalf
of all of the heirs.
As [the
Applicant]
notified the
owner
of the property
appearing
from
the
authentic
tax records, the
PCB
properly
found
the
notice complied
with
Section
39.2(b)
of
the Act even though
all of the
heirs did not
receive
personal
notice.” Wabash,
555 N.E.2d
1081,
1084
(5th Dist.
1990).
Therefore, following
the
very precedent
cited
by
the
Applicant, it
is clear
that
jurisdiction did not vest
in
the City
of
Kankakee.
In this case,
the Applicant’s own
affidavit
establishes
that six individuals
were
identified
by
the authentic tax records
as owners
of the
property at
issue.
(Applicant’s
Ex. 2,
para 5).
Wabash
establishes that
each
owner
identified
within
the authentic tax
records
must
be served
with
Section
39.2(b)
notices.
The
Applicant
failed to provide
any evidence
that each
owner of this parcel
received
notice,
and therefore,
the
City had jurisdiction
and
its decision
should
be
reversed.
The
Applicant
makes a last
ditch desperate
argument to avoid
the clear
failure
to establish
that
each
landowner received
the 39.2(b) notices
by arguing
that Ogle
County Board v. Pollution
Control
Board, 272 Ill.App. 184,
649
N.E.2d
545 (2d Dist.
1995) and the litany
of cases that
have
followed
it have
been “effectively overruled”
by People
ex
rel Devine
v.
$30,
700 United
States
Currency, 199
Ill.2d 142,
766 N.E.2d 1084
(2002). Nonetheless,
even
a cursory reading of
the
Devine case
establishes
that it did
not
overrule
Ogle County or its
progeny
and
instead was
limited
to
the remedial
statute at
issue in that
case. At issue in Devine
was whether individuals
who had
been accused of being
involved
in drug trafficking
received
notice
concerning
the
forfeiture of seized
currency
under
the Drug
Asset Forfeiture
Procedure Act.
The Illinois
8
Supreme
Court
explicitly noted
that
Act is
designed
to serve a remedial
purpose,
and therefore,
is
to
be “liberally construed
to
achieve that
purpose.”
Id.
at 1089, 1091. The
Court also noted
that
the Act would
be interpreted
in
light of the
federal forfeiture
provisions
of 21
U.S.C.
881. Id.
at
1089. The
Court noted that in
order
to determine
when
mail notice
was
perfected under
the Act
the
Court
was bound
by
long
standing
principles
of
statutory
construction.
Id.
at 1091.
One of
these
principles concluded
that
the Court
“must
also consider that
the
Act is
remedial in
nature;
therefore, the
act warrants
liberal
construction
to achieve
the
overall
purpose of
the statute.” Id.
The Court went
on to discuss
that
requiring
actual
receipt of the
notice
would
create an
obstacle
to the enforcement
of the Drug
Asset Forfeiture
Procedure
Act because
individuals
that
were entitled
to
the notice
were
the
very
individuals
whose
assets were
sought to be seized
and
had no interest in
accepting
service. Id.
at 1091-92. In
other words, the government
was
the
entity
that would receive
the benefit
of the forfeiture
to the detriment
of the
person receiving
notice.
In this case, the
notice that is
to be issued is
for the benefit
of the recipient
landowners
to
have
a full and complete
opportunity
to review, examine,
and
challenge the application,
and
is
not
to benefit the sender
Applicant.
In
this case, unlike
Devine,
the
individual receiving
notice
is
the
individual that is sought
to
be protected
by Section
39.2(b).
Section
39.2(b) is
not
a remedial
statute
and, therefore, is not
entitled to
the
liberal
construction that was
afforded to
the
service
requirements
of the statute at issue
in
the Devine
case.
Devine
does not
even
mention the
Ogle County
decision, nor
any landfill
siting
cases.
Ogle
County, which
does address
Section 39.2, explicitly
found
that “Section 3 9.2(b)
of the
Act
reflects
the intent
of the legislature to
require
actual
receipt of the notice,
as evidenced
by the
signing
of the
return
receipt.”
Ogle County,
649 N.E.2d at 554.
9
The
Devine
case also
noted
that the statute
at issue
in
that
case
was not
conditioned
upon
the investigation
of
the
entity
sending
the
notice,
rather
the person
who was supposed
to receive
the
notice
was
obligated
to
notify the
seizing
agency of
his
or
her
change
of
address.
Devine,
766 N.E.2d
at 1092.
The Court
held
that
in
regard
to
the
Drug
Asset
Forfeiture
Procedure
Act
requiring
the
notice
to be actually
received
would
render
the requirement
that
the individual
notify
the
State
of a
change
in
address
superfluous
and,
therefore,
the
Court
employed
the
liberal
interpretation
in
regard
to
service
requirements
of the
Statute.
Id. In
this
case, the
notice
is
conditioned
upon
the
investigation
done
by
the
Applicant
to determine
the
address and
identity
of the owners
of the
property
by the
authentic tax
records.
It is not
the burden
of the
owners to
keep
the
Applicant
informed
of their
addresses.
Therefore,
imploying
a strict reading
Section
39.2(b)
as requiring
actual
notice,
as was
done in
the Ogle
County
case,
and
has
been done
in
a
litany
of IPCB
cases,
does not render
any
portion
of Section
39.2(b) superfluous.
(See e.g.
ESG
Watts,
PCB
98-2
June 17,
1999;
Environmentally
Concerned
Citizens
v. Saline
County
Board,
PCB
98-98
(May 7,
1998)).
Finally,
in
reviewing
Section
39.2(b)
as
a
whole,
it
is clear
that the
intent
of the
legislature
was
to
require
receipt
of actual
notice
to assure
landowners
the opportunity
to review
and object
to a siting
application.
Whereas,
the Drug
Asset
Forfeiture
Procedure
Act reviewed
in
toto
establishes
that
the
purpose
was only
to
require
the government
to
send the
notice
to the
address of
which
it
was
aware
or to
any address
provided
by the
individual
entitled
to
notice.
In
other
words, the
State
was only
required
to show
its good
faith effort
before
enforcing
its
remedy
against
the drug
traffickers.
But
in
regard
to a
landfill
siting
hearing,
a
landowner
has
committed
no
wrongdoing
subjecting
itself to
a remedy,
and
therefore,
the
burden
should
clearly
be upon
the
Applicant
to
establish
that
the
notice
has actually
been served
on an
individual.
In this case,
10
it
is
indisputable
that
at least
five
of the
six
owners
of
the above-referenced
parcel
never received
notice
of the
intent
to file
the
application
(even
the
one
owner
for
which
a
return
receipt
is
contained
is
actually
not signed
by
the owner
herself),
therefore,
the
long held
rule
that
there
must
be
evidence
that
the notice
was
received
should
be followed
and
the
City of
Kankakee
decision
reversed.
B.
There
is
No Evidence
in the
Record
that
“ICC Railroad”
is the
Same
Entity
as
the
“Illinois
Central
Railroad
Co.”
The
Applicant
argues
that
service
upon
the
“Illinois
Central
Railroad
Co.”
was
effective
despite
the fact
that
the return
receipt
is dated
March
6, 2002,
which
is
not
at least
14
days
before
the
filing
of the
application.
(Applicant’s
Brief,
p
7).
The Applicant
argues
that
the return
receipt
for
“ICC
Railroad”
which
was sent
to 17641
South
Ashland
Avenue,
Homewood,
Illinois
and signed
on
February
20,
2002
was
effective
service
upon
“Illinois
Central
Railroad
Co.”
However,
there
is
no
evidence
in the
record
that Illinois
Central
Railroad
Co.,
do
CTS
Corp.,
is
the same
legal
entity
as
“ICC
Railroad”.
The
Applicant
has admitted
that the
only
evidence
regarding
the owners
that
were
entitled
to
notice
is contained
in Tom
Volini’s
affidavit
and the
exhibits
thereto.
One
of
these
exhibits
is
a
returned
receipt
from
Illinois
Central
Railroad
Co.,
do
CTS
Corp.,
which
is signed
and
dated
March
6,
2002.
We
can only
assume
that
Illinois
Central
Railroad
Co., do
CTS
Corp.,
was
an
entity
that was
entitled
to notice.
The
record
is
completely devoid
of any
evidence
or
testimony
that
“ICC
Railroad”
is the
same
legal
entity
as
Illinois
Central
Railroad
Co. Therefore,
the
evidence
on its
face
establishes
that
the Illinois
Central
Railroad
Co.
did
not receive
notice
14 days
before
the
application
was
filed.
11
C.
The
Return Receipts
of
Several
Parcels
were Signed by Individuals
who
Refused
to
Indicate
that they
were
the
Agent
of the
Landowner,
and Therefore,
Service
was
Improper.
The Applicant
has “acknowledge[d]
that the return
receipts
(green
cards)
on some
registered
mail were
signed
by individuals
other
than
the
addressee
of the mail.”
(Applicant’s
Brief,
p
5). The
Applicant attempts
to distinguish
JEPA
v. RCS,
Inc.
and Michael
Duvall,
AC
96.42
(Dec.
7, 1995),
by
arguing
that case
does not
apply
because
it involved
an administration
citation
proceeding
which
according
to the
Respondent
entailed a “more
stringent
service
standard”.
This
is either an intentional
or negligent
misstatement
of the
Duvall
case
by the
Applicant.
The Duvall case
itself
established
that
there
was
no more
of a stringent
standard for
service of process
in an administrative
citation
hearing than
a PCB Enforcement
Action
and
rather
both actions
could
be accomplished
by certified or registered
mail return
receipt requested,
which is the exact same
service
standard
at issue
on
this case. JEPA
v. RCS, Inc.
and
Michael
Duvall,
AC
96-12,
p
4.
Duvall went
on to conclude
that service
of an individual
by certified
mail to an employer,
which
was
then signed
and received
by someone at his
employer’s
office,
was
improper because the
record
was
devoid
of any
evidence that the individual
who
signed the
receipt was the
authorized
agent of the addressee
for
service
of process.
Id. at 4-5.
The
Duvall decision
has been affirmed
in regard to
a general PCB
enforcement action.
Trepanier v.
Board of Trustees
of the University
of Chicago,
PCB
97-40
(Nov.
21, 1996).
In
Trepanier the
Court held that
a complaint
filed in the IPCB
could “either
be served
personally.. .or shall
be served
by
registered
or certified
mail...”. Id. at 3. Trepanier
noted
that
a
public corporation
(such as the
University
of Chicago) could
be
served through
its president,
clerk or
other officer pursuant
to 735
ILCS
5/2-2
11.
Id. In Trepanier service
was
attempted
to
be obtained
by sending the
complaint
to the secretary
of
the
president
of
the University
and the
12
IPCB found
that
such
service
was
improper
because
the secretary
who
signed the
receipt was
not
the legally
authorized
agent
for service
of process.
Therefore,
the
Trepanier
case establishes
that
the requirement
that
the
individual
be the
authorized
agent
as announced
in Duvall
is not
only for
administrative
citation
actions, but
for
any
action
where
registered
mail
is recognized
as an
appropriate
method
of service.
It
is simply
impossible
to
reconcile
Duvall and
Trepanier
with DiMaggio
v. Northern
Cook
County,
89-138
(Jan. 11,
1990)
and
City
of
Columbia
v.
City
of
St. Claire
and
Browning-
Ferris
Industries
of
Illinois,
PCB
85-223,
85-177 and
85-20,
(April 3,
1996).
The DiMaggio
case
merely
cites
the City
of Columbia
as the
IPCB precedent,
but
a
review
of City
of Columbia
indicates
that
no
analysis
was
done
concerning
the propriety
of
an
individual
signing
the
return
receipt
when
there
is
no evidence
that
individual
is an authorized
agent
for service
of
process.
At
a
minimum
the Duvall
and Trepanier
cases
establish:
(1) that
registered
mail service
is
improper
when
the
receipt
is signed
by
a
third
party at the
intended
recipient’s
place
of
employment;
and (2)
that
a business
may
not
be served except
through
a
legally
recognized
agent
for the
purpose of
service
of
process,
which would
be a president,
clerk
or other
officer
of the
business.
In this case,
there are
several business
identified
in Mr.
Volini’s
affidavit
including
parcel
13-16-24-300-019
wherein
the business
owner
is identified
as
“Skeen
Farms”.
Likewise,
13-16-24-400-001
the business
owner
is
identified
as
“Skeen
Farms”.
13-16-25-100-002
the
owner
is
identified
as “AT&T
Property
Tax”.
Also
Parcels
13-16-25-500-001,
002,
and
003
the
owner is
identified
as “ICC
Railroad”.
The
return receipt
for “Skeen
Farms”
is
signed
by one
“C.
Skeen” and
the
agent box
is not checked.
The
record is
completely
devoid
of any
evidence
that
C.
Skeen was
the
president,
officer
or legally
recognized
authorized
agent
of Skeen
Farms.
13
Likewise,
the
receipt for
ICC
Railroad
is
signed
by a Bob
Malenti
who
is identified
as
agent, but
as the
RCS/Duvall
case establishes
a return
receipt
which
merely
indicates
agent
is
insufficient.
The
AT&T
Property
Tax
parcel
is signed
by an E.
Meyers,
and there
is
no
indication
of agency
and
again
the record
is
devoid of
any evidence
that he
was
a legally
recognized
agent
for the
service
of process.
Therefore,
at
a minimum
these business
properties
did not receive
proper
service.
Even
if the
IPCB
decides
to continue
to follow
DiMaggio
and
City
of Columbia
(despite
the lack
of analysis
in those
cases and
the inability
to reconcile
them
with
Duvall
and Trepanier),
those cases
do
not
answer the
question
of first
impression
that
is
raised
by
the
Respondents
in
this action
as to those
properties
where
the individual
signing
the return
receipt
refused
to mark
the “agent”
box.
Neither DiMaggio,
nor City
of Columbia,
addressed
the
specific
issue of
whether
service is
proper
when
the return
receipt has
a
box
to
be
checked
if the
signee
is the
agent
and such
box
is
not
checked.
It is
the position
of the Petitioners
that
the failure
to
check
this
box
is
unrebutted
evidence that
the signee
was
not the
agent of
the
landowner
for
the
purpose
of accepting
service
of process.
The
Applicant
has sited
no
case that
when
there
is
such
unrebutted
evidence
of the lack
of
agency that
jurisdiction
could
be deemed
established.
Therefore,
the
City
of Kankakee
decision
should
be vacated.
D.
Neither
the
Applicant
Nor the
City
has
Addressed
the
Fact
that No
Notice
was Sent
Before the
February
19, 2002
City
Council
Hearing.
One of
the
primary
bases
for
the
petition
for
review filed
by
the County
and
State’s
Attorney
Smith
was
that “the
City
Council
did
not have
jurisdiction
to consider
this matter
because
the
Applicant
first
made its request
for
site location
approval
to
the City
Council
on
February
19, 2002,
without
sending
the notices
required
by
Section
39.2 of
the Act.”
(See
Petition
for Review,
par
8(g)).
During
the IPCB
hearings
the issue
was
addressed
and the
City
14
and
the Applicant
stipulated
that
no Section
39.2 notices
were
sent before
the February
19, 2002
meeting.
(11/6
Tr.
188,
190). Despite
the
Applicant
and the
City’s
awareness
that it
is
the
position
of the County
that Section
39.2 notices
had
to be sent
before
the
February
19,
2002
meeting,
the
Applicant
has not
responded
to this
argument.
Once
again,
a review
of those minutes
establishes
that it was
a hearing
concerning
the
substance
and
content of
the application
by the Applicant’s
expert
witnesses
at
which time
the
County Board
was
allowed
to
question
those witnesses
concerning
their
compliance
with
Section
39.2
criteria.
The
Applicant
presented
its case to
the City Council
that
the proposed
site
met
the
39.2
criteria. Obviously,
that
was
the exact
intent
of
a Section
39.2
hearing.
The
landowners
surrounding
the
landfill as
well
as the known
objectors
had the
right to be
present
to examine
those
same
witnesses
at the time
that
the City
Council heard
this unsworn
testimony.
Since
no
notices
were
sent
before
the
February
19, 2002 hearing,
the
City
of
Kankakee
did not
have
jurisdiction
to
decide
the
case and,
therefore
its
decision
should
be
reversed.
VI. THE
PROCEEDINGS
WERE
FUNDAMENTALLY
UNFAIR.
A.
The Public
was
Denied
the
Opportunity
to Participate
in the
City Hearing.
Surprisingly,
both
the Applicant
and
the City indicate
that there
was
no
evidence
in
the
record
that any
person
was denied
the opportunity
to participate
in the
Section 39.2
proceedings.
(See
Applicant’s
Brief,
p
19; City
of Kankakee
Brief,
p
3).
Both the
Applicant
and the
City
completely
ignore
Mr.
Darryl
William
Bruck,
and
other
persons
like him,
that were
given
misinformation,
either
intentionally
or
negligently,
by the
City Clerk
that
they could
not
appear
as
a party
in the
Section
39.2
proceeding
after June
12,
2002.
(See
Petitioner’s
Brief,
pp
8-10).
Mr.
Bruck
explicitly
testified
that he went
to
the City
Clerk at
some
point after
June
12,
2002
and
before
the hearing
commenced
on June
17,
2002
and was
told it was
“too late”
to register
as
an
objector.
(11/4
Tr.
100-117;
Cl549-1550).
Mr. Bruck
informed
the
City
Clerk that
the
notice
15
published
in
the
newspaper
indicated
he
could
sign up
any
time
up
to and
including
the first
night
of the
hearing,
but
was
told
that that
notice
was
irrelevant
and
it
was
too
late.
(11/4 Tr.
117; C1549-1550).
Mr. Bruck
then
attempted
to
go the
first
night
of the
hearing,
but
could
not
get into
the
hearing
room
due
to the
over
crowding
and
the police
barring
him
from
entering
the
room.
(11/4
Tr. 109).
While
in
the hallway
he
never
heard
any
announcement
that
he
could sign
up
to
register
that
evening.
(11/4
Tr.
109).
Every
member
of the
public
that
testified
at the
IPCB
hearing
said
that
they never
heard
any
announcement
made
in the
hallway
on
June
17,
2002
that
they
could
sign
up
and register
at
any time
that evening.
(11/4
Tr. 77-78,
105,
110-111,
133,
195,
366-167;
11/6 Tr.
55)•3
Neither
the
city nor
the
Applicant
called
any
member
of the
public
to testify
that
they
heard
such
an
announcement.
The 50
to 125
people
standing
in the
hallway
could
not hear
nor
see what
was
occurring
in
the
hearing
room.
Id.
Therefore,
Mr.
Bruck,
and
any
other
person
that
went
to
the City
Clerk’s
office
after
June
12, 2002,
were
denied
the
opportunity
to
participate
in
this
allegedly
public
hearing
because
they
were
erroneously
told it
was
too late
to
enter
their appearances
and
then
they
were
barred
from
entering
the
hearing
room
on the
first night
to appear.
Furthermore,
neither
the
City
nor
the
Applicant
have
addressed
the
fact
that
the
City
Clerk,
Ms.
Anjanita
Dumas,
specifically
informed
people
that
came
to her
office
prior
to
June
12,
2002
that
they
had to
draft a
letter
stating
they wish
“to
speak”
at
the hearing
in
order
to
register
as a
party.
(11/6
Tr. 37).
Indeed
such
forms
were
filled out
by Pat
O’Dell,
Brian
Simms,
The
Applicant
misstates
the record
by
indicating
that
Ms.
Patricia
O’Dell
acknowledged
that
Mr.
Pat Power
made
an
announcement
in
the hallway
that
people
could
register
to
participate.
(Applicant’s
Brief,
25).
The
Applicant
cites 11/6
Tr.
96
for this
proposition.
However
review of
that
testimony
provides
that
in
her
written
statement
she
acknowledged
that
she
heard
names
called
in the
hallway,
but at no
time
indicates
that
she
heard
an
announcement
that
people
could
sign
up
to
register.
On
the
contrary,
Ms.
O’Dell
explicitly
testified
that
there
were
no
announcements
made
in the
hallway
as
to instructions
on
the rules
of
procedure
or admonitions
or
advice
as to rights.
(11/6
Tr. 55-56).
16
Olivia Waggoner,
John
Surprenant,
Thomas Bunosky,
Ruth
Romar,
Ronald Thompson,
David
McAloon,
and
Richard
Howell.
(C2223-2231).
The
Hearing
Officer
admitted
that
there
were
numerous
forms
submitted
to the
City
Clerk
prior to
June 12,
2002 that
indicated
certain
individuals
wanted
to
speak and
that
he did not
recognize
these individuals
as participants
or
parties. (11/4
Tr. 330-333).
He
admitted
that
the
names of
these individuals
are
contained
in
pages 2223-2234
of
the
City of Kankakee
Record.
(11/4 Tr.
332, C2223-2234)).
What
the
Hearing
Officer
failed
to realize
is that the
public
notice
only
required
persons
who
wished
to be
parties at
the
public
hearings
to submit
written
notification
of
said
intent to
the
City Clerk
before
the
first day
of the
public hearing
or register
with
the hearing
officer
on
the
first
day
of the
hearings.
The
notice provided
that
any
person
so
appearing
would
then
have
the
right
to present
testimony
and
witnesses,
be represented
by counsel,
and cross-examine
witnesses.
There
was
no requirement
in
the
public
notice
that an
individual
merely wanting
to
provide
public
comment
needed
to file
a
form
with
the City
Clerk.
(See
Applicant’s
Ex.
6).
Furthermore,
the
City of
Kankakee
Ordinance
2-24 provided
that
only persons
who
wanted
to
present
witnesses
and
cross-examine
witnesses
needed to
file
a
written
appearance
at
least five
days before
the public
hearing
was
scheduled to
commence.
That rule
explicitly
provided
that
“this
rule does
not
apply
to
a person
or entity
who desires
only
to
present an
oral
or written
position
to the
City
Council.”
(C3237).
Therefore,
the
City was
completely
aware
that
if
someone
filed a
written
form
with
the City
Clerk by
June 12, 2002,
the
only
purpose
for doing
so
was
to
identifr
that
person
as wanting
to present
witnesses
and
cross-examine
witnesses.
The
only reason
that
these
forms
have the
word “speak”
in them,
is
because the
City
Clerk
herself
told people
that
such
language
needed
to
put
in
the form to
enter a valid
appearance.
17
Once
these
forms
were filed
with
the City
Clerk the
City
Attorney/Hearing
Officer
ignored
them because
they
did not use
the
word
“participate”
even
though
no ordinance
nor
notice
ever
indicated
that
people
needed
to
use this
“magic
word”.
Through
sheer
tenacity
Ms.
O’Dell
was finally
able to
correct the
problem
in her
circumstance
and was
allowed
to
act
as a
party
after
the
third
or fourth
day of
the hearing.
Of
course, by
this
time Dr.
Shoenberger
(who
was
the only
witness
identified
and
called
by
the Applicant
testified
as
to
Criterion
viii) was
no
longer
available
and
therefore
Ms.
O’Dell never
had the
opportunity
to personally
hear
his
testimony
nor
cross-examine
that witness.
The other
individuals
who
filed
appearance
forms
with
the City
Clerk
prior
to June
12, 2002 perhaps
also
tried
to attend
the hearing
on June
17,
2002
but
were unsuccessful
in
entering
the hearing
room
due to the
overcrowding
and
the
armed
guards
blocking
the doorways.
Therefore,
the names
of these
people
were
not read
in the
hallway
with
the
recognized
parties and
these people
were never
invited
into the hearing
room.
Obviously,
the procedures
that
were
employed
in this case
were
not only
confusing
but
obtrusive
and
resulted
in two
specific
individuals,
Mr. Darryl
Bruck
and
Ms.
Patricia
O’Dell
not
being able
to fully
participate
as
parties.
(Mr.
Bruck
was never
successful
in being recognized
as
an objector
and
therefore
was
never afforded
the
opportunity
to present
witnesses
or
cross—
examine
the
applicants
witnesses).
It is very
fortunate that
the County
was
able
to discover
these
two
individuals
as
it
is
likely
that other
people found
themselves
in the
same
circumstances
but
were not
discovered
by
the
County.
The
fact
that the
Applicant
and the
City
have ignored
this
testimony
in
the
record
is undoubtedly
because
they
recognize
that
there
is no
defense
to this
clear
violation
of the
Section
3
9.2(d)
requirement
that
the
City
hold a
public
hearing.
Therefore,
the
decision
of
the
City
Council
should
be vacated.
18
B.
The Public
Was Denied
the
Opportunity
to
Attend
the
First
Night
of the
Hearing.
The Applicant
and the
City
have
not
disputed
the fact
that between
50
and 125 people
were
denied
access
to
the hearing
on the
first night.
As
a matter of
fact, the
Applicant
has even
acknowledged
that
“at least
50, and
perhaps
more,
people did
not
get into
the
hearing room
initially.”
(Applicant’s
Brief,
24).
The
only
argument
posed
by
the Applicant
concerning
the
failure to
accommodate
the vast
numbers
of people
that
could
not
hear
nor see
the testimony
on
the
first
night
is a
reference
to the
City of
Columbia
case that the
Board
“appreciated
the
logistical
dilemma”
of
finding
a new
hearing
room when
faced
with overflow
crowds.
As explained
in
the
County’s
brief,
the
City
of Columbia
case
actually
supiorts
the
finding
of fundamental
unfairness
because
the
lack of seating
capacity
was one
of the
factors
that
when
combined
with other
factors
(which
coincidentally
happened
in this
case as
well) resulted
in
a fundamentally
unfair
proceeding.
In other
words,
the City of
Columbia
case did
not hold
that
the lack
of
adequate
seating
was
not a
fundamental
fairness
consideration,
and
on the
contrary
it
held
that
it was one
of the
factors
that
must
be considered.
Furthermore,
in
the City
of
Columbia
case
the City
was surprised
by the
overflow
crowds,
but
here there
was
ample
evidence
that the
City of
Kankakee
was aware
that the chamber
room
would
be of
insufficient
size.
Specifically,
Doris
O’Connor
informed
the City
Clerk
and Hearing
Officer
Bohien of
her
concerns
about seating
capacity
days before
the hearing
commenced.
The
annexation
proceedings
were overcrowded,
the Applicant’s
“expert
witness”
Jamie
Simmon
‘
The Applicant’s
Brief
indicates
that
the
City
Council
chambers
had
chairs
to
accommodate
125
people. There
was
no
evidence
submitted to
this fact at the
IPCB
hearings.
The Applicant
sites
the
“Pat Power
Affidavit”
but
does
not
indicate where
or when
this affidavit
was allegedly
admitted
into the record.
The County
of
Kankakee
does
not
recall that
a Pat Power
Affidavit
was
admitted
as an
exhibit
by the Applicant
at the
City
of
Kankakee
hearing or
the IPCB hearing.
The County
of Kankakee
recalls
that an affidavit
by
Pat
Power
was tendered
to
it
in response
to discovery,
however,
the County
of
Kankakee has
no
recollection
that
the
affidavit
was
ever
offered
or admitted
into the
proceeding
by the Applicant
or the
City. The
IPCB
has
indicated
that
no public
comment
was filed
concerning
the IPCB hearing.
Therefore,
upon information
and
belief the
affidavit
is not
a part of this
record and
should not be
relied upon
or
considered
by the IPCB.
19
informed
the
City
Council
on February
19, 2002
that
the hearings would
be crowded,
and indeed
the
City
acknowledged
that
it
was expecting
large
crowds by putting
additional seats
into the
hearing room.
There was
also insufficient
explanation
as
to
why people who
found space at
the
back of the
room to stand were
expelled from
the
room by
City police when in past
City
Council
meetings people were
allowed
to
stand. The Applicant
and the City
have provided absolutely
no
authority
that
would suggest
barring 50
to
125
people from the
hearing room
on the first night
of
the
hearing,
(which
was the only night
that
the Applicant’s
witness
on plan consistency
testified)
is fundamentally
fair to the public. The
only argument
that the
Applicant and the City
make is
that on the
second night
they
attempted
to rectify the situation
by
providing
speakers in
the
hallway. However,
it did not
correct
the inability
of
people
to hear Dr. Schoenberger’s
testimony
the first night,
nor did it correct
the fact
that
people could not
hear
the Hearing
Officer’s
announcement
that they could sign
up at any time
the first evening
to participate.
Therefore
the
record is clear
that
the
proceedings
were
fundamentally
unfair and
the City
Council
decision
should be vacated.
C.
The Third District
Court
has Held that
Pre-Filing Contacts
are Admissible
to Show
Pre-Adjudication
of the Merits
or Improper
Communications
with the
Decision
Maker.
As the Petitioners
anticipated,
the Applicant’s
counsel has
argued
that there is
a “bright
line” test
as to which communications
are
admissible and relevant
to determining
whether or
not
there was a
pre-adjudication
of the merits
or improper
communications
between the Applicant
and the
decision makers.
(Respondent’s
Brief,
p
15).
It
is
the Applicant’s position
that under
Residents
Against a
Polluted
Environment Against
a Polluted
Environment
v. illinois Pollution
Control
Board,
293
Ill.App.3d
219,
687 N.E.2d
552 (3rd
Dist.
1997)
any
contacts
between
the
Applicant
and the County Board
prior to
the filing of the application
are irrelevant
to the
question
of
whether
the
siting
proceedings were
conducted in a
fundamentally fair manner.
(See
20
Respondent’s
Brief,
p
15).
It
is amazing
that
the Applicant’s
counsel, has
made such an
argument
as he
was
the
very counsel
for the
objector in the Residents
case and
should know
that
the
Third
District
refused
to create
any
such
“bright
line” test. The
Residents Court
never ruled
that pre-filing
contacts were inadmissible
and
irrelevant. On
the
contrary,
the Court
only ruled
that considering
how
the decision maker
amended
its Solid Waste
Management Plan
was beyond
the
scope
of review of a Section
39.2 proceeding.
Residents,
687
N.E.2d at 554
— 556. The
Third District specifically
found
that
the
Appellants
do not cite,
nor do we
find, any statutory
or judicial
authority
which would
allow
evidence
to
be presented
concerning
the County’s amendment
of its Plan. Indeed,
the
express
language
of
the Act indicates
the purpose of
the
siting
process is to determine
whether
the proposed
facility
complies with the
County’s
Plan. 415 ILCS
5139.2(a)(viii)(1994).
The
Act
does
not authorize
an
inquiry in
the
County’s
prior
amendment
of the
Plan,
rather the adoption
and
amendment of
a Solid Waste
Management
Plan
is
governed by the local
Solid
Waste Disposal
Act
(415
ILCS 10/1
et seq. (1994)) and
the Solid
Waste
Planning
and Recycling
Act
(415 ILCS
15/1 et
seq
(West 1994)).
Neither of
these Acts
authorizes
the Board in siting
approval
appeals
to review
the procedures
by the
County
in adopting
its
Solid
Waste
Management
Plan.
Residents, 687
N.E.2d at 555.
In the Residents
case Attorney
George Mueller,
attempted
to argue that
the
County
improperly amended
its Solid Waste
Management
Plan
and
the Third District
merely held that
“the amendment of the
Plan
was
a prior
legislative
function of the
County board.”
Id.
In this
case, the City Council
held a “pre-hearing”
of the merits
of the application
on February 19,
2002.
This meeting
served absolutely
no legislative
function
and was not part of the
amendment
of the
City’s
Solid Waste
Management Plan.
The
only
purpose for the meeting
was
to give the
Applicant
an unfettered
opportunity
to
present
its case
to
the
City Council
without any objectors
or lawyers being
present. The other
undeniable
purpose
of the meeting
was to
inform the City
Council
that the Section 39.2
proceeding
itself
was
untrustworthy because
objectors
would
submit
witnesses
that would
be hired
gun environmentalists
that
would
not tell the
entire truth.
21
The
Residents
case is
in no
way relevant
to the
determination
of whether
it is appropriate
for
a
local siting
authority
to hold
a
“pre-hearing”
immediately
before
the notices
of intent
to
file the
application
are
sent
out.
It is
blatantly
obvious
that the
Applicant
and
its
counsel
either
misinterpreted
the
ruling
against
Mr.
Mueller’s
client
in
Residents
or intentionally
wanted
to
test
the
limits
of
that
ruling
by conducting
a hearing
in
front
of
the
City
Council
concerning
the
merits
of
the
application
before
the
application
was formally
filed.
The
Residents
case
was
clear
that the
Court
was
not
ruling
that
any and
all pre-filing
contacts
are
irrelevant
and inadmissible,
when
it ruled
that
the objector’s
argument
that
they
were
improperly
prevented
from
presenting
evidence
of “other”
pre-application
contacts
was
not
possible
to
be
ruled upon
because
the
objector
did
not make
an
offer of
proof
in that
case. Id.
at
556-557.
The
Court
cited
to
the IPCB
record
wherein
the
Hearing
Officer
informed
the
objector’s
counsel
that
if he wished
he
was free
to
make
an
offer of
proof
as to the
specific
pre
filing
ex-parte
contacts.
Id. The
Third
District
refused
to
send the
cause
back for
a
third
set of
public
hearings
because
the
objector’s
counsel
failed
to
make
such
an
offer
of proof.
It held
“at
least
a minimal
showing
of
bias, if
not
a
formal
offer of
proof,
must
therefore
be made
to
warrant
a
remand.”
Id.
at 557.
In
otherwords,
the
Third
District
recognized
that
it
must
review
the
pre
filing
contacts
themselves
to
determine
if
they
are relevant
to
an
allegation
of pre-adjudication.
Indeed,
the Third
District
has
confirmed
that
it will
review
pre-filing
communication
and
if those
communications are
directly
with
the
decision
makers
and
likely
to
lead
to bias,
they
are
highly
relevant
and grounds
for
reversal
of a
siting
approval.
Land
and
Lakes
Company
v. IPCB,
319
Ill.App.3d
41,
743
N.E.2d
188
(3rd Dist.
2000).
In
this case,
there
has been
more
than
a
“minimal
showing
of
bias”.
Instead,
there
is explicit
evidence
that
there
were numerous
pre
22
filing
contacts
with
the
City
and
the
Applicant,
the
Hearing
Officer
and
the
Applicant,
and
culminating
with
a
direct
pre-hearing
of
the application
to
the
decision
makers,
the
City
Council.
The
Applicant
argues
on
numerous
occasions
that
no
City Council
member
testified
that
he was
biased
by
the
February
19, 2002
meeting.
However,
the
Respondent’s
counsel
fails
to
mention
that
under
Illinois
law
is
improper
to
inquire
into
the
deliberative
process
of a
decision
maker
at a
Section
39.2
hearing.
Village
of
LaGrange,
City
of
Countryside,
Christine
Radogno,
Laureen
Dunne
Silver,
Michael
Turlek,
and
Donald
Younker
v.
McCook
Co
generation
Station,
L.L.
C.
and the
Board
of
Trustees
of
the
Village
of
McCook,
PCB
96-4
1 (December
7, 1995);
DiMaggio
v. Solid
Waste
Agency
of
Northern
Illinois,
PCB
89-138
at 5
(January
11, 1990).
Therefore, one
must
prove
improper
communications
and
pre-adjudication
of the
merits
by
objective
evidence
such
as
the
minutes
to
the February
19,
2002
meeting,
the
March
12,
2002
correspondence
from
Mr.
Mueller
to
Hearing
Officer
Bohien
wherein
it
is acknowledged
that
Mr.
Mueller
drafted
the
rules
and
procedures
for
the
hearing,
and
the
Mayor
and
several
alderman
(the
decision
makers)
interviewed
witnesses
for
a vacant
City
Council
position
wherein
those
potential
applicants
were
asked
whether
they
favor
siting
a
landfill
within
the
City.
When
this
evidence
of pre-adjudication
is considered
along
with
the
other
unfair
practices
that occurred
in
this
case,
it is
clear
that
the
combined
result
of
these
practices
was
a fundamentally
unfair
proceeding. American
Bottom
Conservancy
v. Village
of
Fairmont
and
Waste
Management
of
Illinois,
PCB
00-200
(October
19, 2000).
D.
Kankakee
County
was
Prejudiced
by the
City’s
Failure
to
Provide
the
Required
Copies
of the
Application
to
the
County.
The
Applicant concedes
that
the
City of
Kankakee violated
its
own
siting
ordinance
by
failing
to
immediately provide
copies
of
the
application
to
Kankakee
County.
(The
City
does not
even
address
the
issue
in
its brief).
The
only
argument
that
the
Applicant
makes
is
that
the
23
County’s
outside
expert
consultant,
Mr. Chris
Burger, eventually
obtained
a
copy
of
the siting
application.
(Applicant’s
Brief
p
18).
The
Applicant
states that
Mr. Burger
received
it
almost
two
months
before
the siting
hearing
commenced.
In
reality, he
acquired it
approximately
six
weeks
before the
hearing commenced
which
was still
over two months
after
the Solid
Waste
Director
and
the
Chairman
of the
County
Board were
supposed
to receive
copies
of the
application.
First,
in
regard
to the allegation
of
prejudice
the ABC
case
establishes
that
a failure
to
timely
provide
the
application
is
prejudice
as
a matter
of
law
because
an
objector
does not
have
as much
time
to
review
the
application
as it
was entitled.
American
Bottom
Conservancy
v.
Village
of
Fairmont,
PCB 00-200,
p
16 (October
19, 2000).
Second,
the issue
is not whether
an
expert hired
by the
county
acquired
a copy
of
the application,
but
rather
whether
Mr.
Karl
Kruse,
the
County Board
Chairman,
and
Mr. Efraim
Gil, the County’s
Solid
Waste
Director,
received
the copies
that were
supposed
to be provided
to them
by
the City
Council.
They never
received
a
copy
from
the City Council.
The
Applicant
even concedes
that
the
Board is
free to remand
this cause
for the
failure
of
the
City Council
to
follow
its ordinance
and provide
copies of
the
application.
(Applicant’s
Brief,
p
19). On
this
issue
alone,
the
Applicant
argues that
no
purpose
would
be served
by a
remand.
The Applicant
is simply
wrong.
First, after
remand Kankakee
County
would
no
longer
be
prejudiced
by
the failure
to timely
provide the
application
because
it
will have
had the
application
for
over
the
four
months
that it was
entitled
to
review
and
test
the application
before
the
commencement
of the
39.2 hearing.
Second,
a
remand
could
resolve
many
of the
fundamental
fairness
problems
that
resulted
from
the misinformation
supplied by
the City
Clerk
and
the
barring
of
people
from entering
the chamber
room
on the first
night,
which
resulted
in
24
members
of the
public
not
being able
to
participate
or attend
the
Section
39.2
hearings.
Regardless,
the
decision
of the
City
Council
should
simply
be reversed,
rather
than remanded,
because
the
City
Council
has been
irrevocably
tainted
by
the
improper
pre-hearing
of the
application
on
February
19,
2002 and
because
the
lack of compliance
with
Criterion
viii
is
dispositive
of this
case
as
the
County’s
Solid
Waste
Management
Plan
clearly plans
only
for
the
expansion
of
the
existing landfill.
VII.
IT IS
UNDENIABLE
THAT
THE APPLICATION
IS
INCONSISTENT
WITH
THE
COUNTY
SOLID
WASTE
MANAGEMENT
PLAN.
A.
The Plain
Language
of the
Plan Precludes
the
Erection
of a
New Landfill
Unless
and
Until the
Expansion
of the
Existing
Landfill
is Disapproved.
The
Applicant
has
admitted
that
“there
is
no
question in
this
record
that
the
County
wanted
expansion
of
the
Waste
Management
facility”
and attempted
to
accomplish
this
by their
Plan
amendments.
(Applicant’s
Brief,
38).
This concession,
in
and of itself,
establishes
that
the
decision
of the City
Council should
be
overturned.
It
is
elementary
that
the
primary
objective
in construing
a statute
is to
give
effect
to the
intention
of the
legislature.
In Re
C. W.,
766 N.E.2d
1105, 199
Ill.2d 198
(111.2002);
MA.K
v.
Rush Presbyterian-St. Luke’s
Medical
Center, 764
N.E.
1, 198
Ill.2d
249
(Ill. 2001).
The
cardinal
principle
of
statutory
construction,
to
which all
other cannons
and
rules
are
subordinate,
is
to ascertain
and
give effect
to
the intention
of the legislature.
People
v.
Savory,
197
Ill.2d 203,
756 N.E.2d
804,
810
(Ill. 2001);
Coal
v. State Department
ofPublic
Health,
329
Ill.App.3d
261,
767
N.E.2d
909
(3d
Dist.
2002).
A statute
must
be considered
in its
entirety
keeping
in mind
the
subject
it
addresses
and
the legislature’s
apparent
objective
in
enacting
it. People
v.
Davis, 766
N.E.2d 641,
199
I1l.2d 130
(111.2002).
The
statute
must
not
be
read
so
as to render
any
part of
it
inoperative,
superfluous
or insignificant
and one
must not
depart
from
the
statute’s
plain
language
by
reading
into
it exceptions,
limitations
or
conditions
the
legislature
did not
express.
25
People
v.
Ellis,
765 N.E.2d 991,
199 Il1.2d
28 (Ill. 2002).
When interpreting
a statute
a court
must
give affect to the
entire
statutory
scheme
rather than looking
at words
and
phrases
in
isolation from
other
relevant
portions
of the
statute.
Carroll v.
Paddock, 764 N.E.2d
1118, 199
I1l.2d
16 (Ill.
2002). As the
Applicant
concedes, when
one reviews the
Plan
as amended
there is
no question
that
it
was
the
County Board
Plan
that the existing landfill
be expanded
to
meet
the
County’s
needs rather than additional
non-contiguous landfills
being
erected
in the
County.
In
this
case, the City Council
took
the
two words
“if approved”
and read them in
isolation
resulting in a strained
reading
that ignored
the
obvious
intent of
the legislature of Kankakee
County.
As mentioned
earlier,
the
Residents
case clearly
held that how
a Solid
Waste
Management
Plan
is amended
is not
appropriately
reviewed
at
a Section
39.2 hearing nor
an
appeal thereafter.
Therefore,
the only
question is
whether or not the
application
is
consistent
with the County’s
Solid Waste
Management
Plan as amended
which involves
a
pure
question
of
legal interpretation
of the Plan.
Dr. Schoenberger’s
entire
testimony
was
grounded
on his assertion
that the Plan
amendments
were illegal
or unconstitutional
and
that entire testimony
was
stricken. The
Applicant sites only
pages
65
and 69 of
the
record as containing
Schoenberger’s
testimony,
but a
review
of his testimony
clearly showed
that it was
not the
basis
of Dr. Schoenberger’s
opinion
that
the expansion of the
Waste
Management
facility
had
to acquire
final approval before
other
facilities
would
be inconsistent
with
the
Plan; rather
the basis for his opinion
of consistency
was
his
opinion that the amendments
were
illegal
or
unconstitutional.
(As to the testimony
of Devin
Moose,
the City Council
decision in no
way relied upon
Mr. Moose’s testimony,
undoubtedly
because Mr. Moose
was not a disclosed
witness
on the issue of
compliance with the Solid
Waste
Management
Plan. Furthermore,
his
testimony
again
was not based upon
any expertise
as an
26
engineer,
but
rather
his interpretation
of
the
language
of the Solid
Waste
Management
Plan
which
is a
pure
legal question
to be left to
the City
Council
as the
adjudicative
body and
the
IPCB
in its review
of that
decision.
In
other
words, Mr.
Moose’s
testimony
was not
based upon
his
expertise
and
rather
was simply
an
improper
lay opinion).
The
only
substantive
evidence
that
was
admitted
at the hearing,
other
than
the plain
language
of the Plan
as amended,
was the sworn
affidavit
testimony
of
Kankakee
County
Board
Chairman,
Karl
Kruse.
(See
Petitioner’s
Brief
pp
67-79).
Mr. Kruse
confirmed
that it
was the
intent
of the
Kankakee
County
Board when
it passed
the
Solid
Waste Management
Plan as
amended
to limit
the
impacts
upon the
County
to the
expansion
of the existing
landfill
to meet
any future
waste
disposal
needs,
rather than
erecting
one or
more entirely
new
landfills.
The
decision
of the City
of
Kankakee
completely
rested upon
the isolation
of
the two
words “if
approved”
contained
in the March
12, 2002
amendment
for
its
finding
of consistency.
(C3285).
The City
Council has
completely
ignored
the fact
that the
October
9,
2001 and
March
12,
2002 amendments
did not
in any way
provide
that
the erection
of
a new
non-contiguous
landfill
would
be
consistent
with the
County’s
Plan
as long as
it
received
siting
approval
before
the existing
landfill’s
application
for expansion
was
heard.
Indeed, there
is no reference
within
the
Plan that
it was
the intention
of the
County
that
its
solid
waste
planning
would
be decided
by
a
race to
siting
approval.
On the
contrary,
the October
9, 2001
resolution
to
the County
Solid
Waste Management
Plan
provided
the
“present
landfill
and its owner
have served
the
County
and
residents
well for
27
years, its
capacity
will
be exhausted
at
present
rates
within
approximately
3-1/2 years.”
(Kanicakee
County
Ex
1,
p
1; attached
to
Petitioner’s
Brief as
Appendix
E). The
resolution
further
noted
that
“the expansion
of
the present
landfill
will
meet
the
needs of
the residents
of
27
this
County
for
waste
disposal
generated
within
the County
for
many
years”
and
“the
expansion
of the
current
landfill
would
serve
all
of the
residents
of
the County
at
a reasonable
cost”.
Id.
The resolution
also
provided
“a
second
landfill
would
have
negative
impacts
on
County
residents
near the
facility”.
Furthermore,
the
resolution
provided
“the
Kankakee
County
Board
affirms
it
is in the
best
interest
to all
residents
of
Kankakee
County
that
one
landfill
be maintained
in
its
current
location.”
Therefore,
the
County
amended
the
language
of
the
Solid
Waste
Management
Plan
to
make it
absolutely
clear
that
it
was
the
Kankakee
County’s
Plan
for
solid
waste
management
that the
existing
landfill
be
expanded
rather
than
new
landfills
being
erected
within
the
County
and
that
the
County
would
oppose
any
attempt
to
erect
a
new
landfill.
The
March
12,
2002
resolution
and
amendment
also
provided
that
“a
second,
non
contiguous
landfill
would
have
impacts
upon
County
residents
located
near
any
such proposed
new facility.”
(C2678;
County
of
Kankakee
Ex.
2,
p
1).
The
Plan as
presently
amended
now
provides:
Kankakee
County
has
a single
landfill
owned
and
operated
by
Waste
Management
of
Illinois,
Inc.
This
landfill
has provided
sufficient
capacity
to
dispose
of waste
generated
in
Kankakee
County
and its
owners
advised
the
County
that
it plans
to
apply
for local
siting
approval
to
expand
the
facility
to
provide
additional
disposal
capacity
for the
County.
Operation
of
the
landfill
has
been
conducted
pursuant
to the
landfill
agreement
signed
by the
County
and
Waste
Management
in 1974,
and
subsequently
amended
from
time to
time.
In the
event
siting
approval
for
expansion
is
obtained,
the
landfill
would
provide
a
minimum
of 20
years
of
long
term
disposal
capacity
through
expansion
of
the
existing
landfill.
An
expansion
of the
existing
landfill,
if
approved,
would
then
satisfy
the
County’s
waste
disposal
needs
for
at least
an
additional
20 years.
In
an accord
with
the
Kankakee
County
Solid
Waste
Plan
(as
amended),
as well
as
relevant
provisions
of
the local
Solid
Waste
Disposal
Act and
the
local
Solid
Waste
Planning
and
Recycling
Act,
no
new
facilities
would
be
necessary.
It has
come
to
the attention
of
the County
that
there
is a
photocopying
error
in regard
to
Appendix
D of the
Petitioner’s
Brief,
such
that
page
two
of the ordinance
was omitted.
The
entire
ordinance
was
admitted
into
the record
as
County
Ex.
2 as well
as attached
to
the
Affidavit
of
Karl
Kruse
and by
the
Applicant
at
C2678-268
1.
Nonetheless
a new
Appendix
D is
attached
hereto
for
the
convenience
of the Board.
28
(County
Exhibit
2; C2679).
If the
City’s
interpretation
of
the
Plan
is
used then
all
of the
language
other
than
the
words
“if approved”
would
be
rendered
superfluous
and
meaningless.
The
Plan
explicitly
contemplated
that
the
expansion
of
Waste
Management’s
facility
had
not
yet
been
approved,
but
it
was
nonetheless
the
Plan
of
the
County
that
the
existing
landfill
should
be
expanded
and
no
other
facilities
would
be necessary
nor
desired
because
of
the
combined
impacts
of multiple
landfills
in
the County.
The language
could
not be
clearer
that
it
is
the
County’s
Plan
to limit
the
impacts
from
landfilling
in Kankakee
County
to
the existing
landfill
as expanded.
The
hearings
on
the proposed
expansion
are
taking
place
and
such expansion
has
not
been
disapproved.
The
City
Council
should
not
have ignored
the plain
language
and regardless
it is clear
that
the City
Council’s
decision
that
the
application
was
consistent
with the
Plan was
erroneous.
Even if
the
Court
employees
the manifest
weight
of the evidence
standard,
it is
absolutely
clear
that
the manifest
weight
of
the evidence
was
that
it
was the
Plan
of the
County
that
only
the
existing
landfill
be
expanded
rather
than
new
landfills
erected.
Therefore,
the application
is
obviously
inconsistent
with
Criterion
viii and
the
City
of Kankakee
decision
should
be reversed.
B.
The
County
of
Kankakee
is
not Precluding
the
City’s
Right
to Conduct
a
Siting
Hearing
Under
Section
39.2.
The
Applicant
argues
that Kankakee
County
“improperly
attempted
to
use two
hastily
adopted
amendments
to
its Solid
Waste
Management
Plan
in an
attempt
to strip
the
City of
Kankakee
of the
siting
jurisdiction
granted
to
it by
the legislature”.
(Applicant’s Brief,
38).
As
explained
in the
Residents
case, it
is
beyond
the
purview
of
this
proceeding
for
the
IPCB to
review
whether
the adoption
of the County’s
Solid
Waste
Management
Plan
was
appropriate.
Rather,
the
only
question
is whether
or
not
the
application
is
consistent
with
the
Plan.
Regardless,
at
no
time
has
the
County
of Kankakee
infringed
upon
the right
of
the City
of
29
Kankakee
to
hold
a
siting hearing
under
Section
39.2.
Had
the
Applicant
properly
served
the
Section 39.2(b)
notices
(which
it
failed
to do) then
the
City of
Kankakee
would
clearly
have
jurisdiction
because
the property
at issue was
annexed
into
the City.
At no time
has Kankakee
County
argued
otherwise.
C.
The Applicant’s
“Home-Rule”
and Constitutional
Arguments
are
Untimely,
Improper
and Erroneous.
In
its
post-hearing
brief,
the
Applicant
attempts
for
the first
time
to raise
an argument
relating
to
the
validity
of the
Kankakee
County
Solid Waste
Management
Plan
as
amended,
disguising
its
argument
as a
constitutional
challenge
to the
Plan. (Respondent’s
Brief at
Section
IV).
Prior to
the
filing
of
its closing
brief
herein, the
Applicant
did
not
in
any way
challenge
the
Kankakee
County
Plan
nor
the method
by
which it was
drafted
or
adopted
in
any
admitted
testimony.
Rather, the
City has
at
all
times acted
as though
it fully accepted
the
validity
of the
Plan itself,
although
the City has
arrived
at strained
interpretations
of the
Plan.
This
eleventh
hour effort
to
fabricate new
arguments
significantly
prejudices
Petitioner
inasmuch
as
little or
no
time has
been afforded
to respond
to the
new arguments.
Given
the
late
hour
at which
Respondent
raises
its
previously
unstated
arguments,
to the
extent
that
Respondent’s
Post
Hearing
Brief
addresses
its
home rule
status, Constitutional
implications,
or
attacks
on the
validity
of the
County’s
Solid
Waste
Management
Plan,
Petitioners
move
to strike
Section
IV of
petitioner’s
post-hearing
brief as untimely
and
outside
the
scope
of this review.
GERE
Properties,
Inc.
v.
Jackson
County
Board
and Southern
illinois
Regional
Landfill, Inc.,
PCB
02-201
(September
5, 2002)
(GERE’s
belated attempt
to include
a challenge
to Criteria
VIII
was
stricken from
its post-hearing
brief because
the late
attempt
to
challenge
the criteria
prejudiced
the
respondents
in
that
case, who
were not
able to
address
the issue
through
the
pendency
of
the case);
Land &
Lakes
v.
Randolph
County
Board,
PCB 99-69
(September
21,
30
2000),
affirmed
319
Ill.App.3d
41,
48; 743
N.E.2d
188,
193
(3rd
Dist.
2000)
(the IPCB
may
not
undertake
a
review
of
the validity
of
a
solid
waste
management plan
in
a
Section
39.2
appeal
taken
under
415
ILCS 5/40.1);
TOTAL
v.
City of
Salem,
PCB
96-79
(March
7,
1996)
(IPCB
cannot
reweigh
evidence
or enter
new
evidence
regarding
the
validity
of the
Plan.)
Although
the Respondent’s
arguments
in
Section
IV of
its
Post
Hearing
Brief
should
be
stricken
by the
Board
as untimely,
and
beyond
the
scope
of
review
of
the IPCB,
they
are
also
incorrect
both
as
to
their factual
allegations
and
to the
legal
arguments.
The
Illinois
Constitution,
Article
VII,
does
state
that
a
home-rule
governmental
body
may
“exercise
and
perform
concurrently
with
the
state
any
power
or function
of
a home-rule
unit
to
the
extent
that
the
general
assembly
by
law does
not
specjfically
declare
the
state’s
exercise
to be
exclusive.”
Illinois
Constitution,
Article
VII,
Section
6(i) (emphasis
added).
However,
in this
case,
the
general
assembly
has clearly
indicated
its desire
to
subject
local
governmental
units
to
the
solid
waste
management
goals
of
counties,
insomuch
as
the
legislature
enacted
415
ILCS
5/39.2(a)(viii),
which
states
that
“if
[a] facility
is to be
located
in
a county
where
the
county
board
has
adopted
a solid
waste
management
plan
. .
. the
facility
[must be]
consistent
with that
plan.”
Id.
Therefore,
it is
clear that
indeed
the
Illinois
state legislature
has indicated
a preference
for
County
planning,
reflecting
its desire
to
deal
with
solid
waste
primarily
at
the
county
level.
This
is
confirmed
by the
local
Solid
Waste
Disposal
Act
which
provides
that
the County
is
primarily
responsible
for
solid
waste
planning.
415 ILCS
1 5/2(a)(2)(2002).
Of
course
petitioner
is unable
to cite
any
statutory
or judicial
authority
for
its
proposition
that
Criterion
viii is
to be
ignored
when
the City
is
the siting
authority,
inasmuch
as no
such
authority
exists.
In fact,
the only
way
to discuss
respondent’s
home
rule
argument
is
to
resort
to
comparable
cases
in other
areas.
For
example,
in
The County
of
Cook
v.
Village
of
Rosemont,
31
the Village
attempted
by enacting
its own
competing ordinance
to revoke
a county
ordinance
imposing
an amusement
tax
on
county
residents,
by
disallowing
Village
employees
from
collecting the tax.
County of
Cook v. Village
of Rosemont,
303 Ill.App.3d
403,
405 (5th
Dist.
1999).
In
overturning the
Village
ordinance,
the
5th Circuit announced
that
inasmuch
as the
City
ordinance
was
specifically
contradictory
to the
County
ordinance,
the
City
exceeded
its
grant of
home-rule power. Id.
at 409. The
court held
that to the
extent
that
the local
ordinance
had
implications reaching
outside
the
City, the
ordinance was invalid.
Id.
In
this case,
the County’s
Plan is limited
to its own
borders.
However,
the
City’s Plan
attempts
to revoke the County
Plan. It is
therefore clear
that
Respondent’s
unsupported
assertion
that that the County
plan is
preempted
by
the City
plan
is simply legally
incorrect. See Pet.
Br.
at
IV(C).
As is made clear from
the County
ofCook
case,
home-rule
authority
does
not provide
a
local governmental
body
the
authority
to thwart
broader
previously enacted
county planning,
nor
does
a conflict
between
two statutes
result
in
a preemption of the
broader county
statute
by the
city statute.
Id.
Further,
in line with
Respondent’s
general attempt
to create an
argument
where
none
otherwise exists, its
extremely
selective
quotation
of the Solid
Waste Planning
and
Recycling
Act, 415
ILCS 15/1, et
seq., completely
misrepresents
the nature of
that statute.
Although the
Act is not
generally
designed
to “impact
the
authority
of units of local government
in the
siting
of
solid waste disposal
facilities”,
the Act
also specifically states
that counties
should have the
primary
responsibility to
plan
for the
management
of municipal waste
within their
boundaries.
415
ILCS
15/2(a)(2)(2001).
Therefore,
although
the
statute
leaves
open
the ability of a local unit
of
government to site
a
solid
waste
disposal
facility,
it also clearly
states that the
primary burden
for
regional
solid
waste
disposal planning
lands
on the county, identifying
the legislature’s
desire
32
to deal with
solid waste disposal
in a regionally
responsible
manner.
Regardless, if
the City or
the
Applicant takes
issue
with
the
County
Plan it
must seek review
of that Plan
under
Administrative
Review
Law
and cannot
attack the
validity of the
Plan in
a
Section
39.2
hearing
or review. Residents,
687
N.E.2d
at 554-556.
D.
Criterion
ii and v
Were
Not Met.
For the reasons
announced
in the
Petitioner’s
brief it is obvious that
Criterion ii
and v
have not
been met. Though
the Applicant
argues
that there was
substantial
testimony regarding
Criterion
ii
it
has not refuted
the fact
that the application
and the
Applicant’s
witnesses
mischaracterized
the
aquifer that
the landfill
is proposed to
be built into as
an
“aquatard”
(retardant
to water), and
therefore, Criterion
ii has
not been met. Furthermore,
the
Applicant
has
conceded
that its only plan to
respond to
fire, spill or
operational
accidents
was for
the City of
Kankakee
Fire Department
to respond to
such occurrences.
However,
the
Applicant
failed to
coordinate
with the fire department
to determine
if it was
capable
of performing
this function
for
the Applicant. Therefore,
it
is
absolutely
clear that
there
was no basis for
the
City
Council’s
determination
that Criterion
v was met.
VIII.
CONCLUSION
It
is clear from the record
that
the City
Council
did not have
jurisdiction
to render
a
decision in this
matter
as
there
is insufficient
evidence
that the required Section
39.2
notices
were issued
and therefore
the decision
of the City Council
should
be
reversed. Furthermore,
because the
application
is patently
inconsistent
with the County’s
Solid
Waste
Management
Plan, the decision of
the City Council
as to Criterion viii
was erroneous and
should
be reversed.
Likewise,
the
improper
pre-hearing
of the application
on February 19, 2002
has
irreparably
tainted
the process
which
can
only
be adequately
remedied
by
a
complete reversal
with prejudice
33
of
the
City
Council
decision.
In the
alternative,
the proceedings
should
be
remanded
to the
City
of
Kankakee
with
directions
to hold
a fundamentally
fair
proceeding.
Dated:
December
4, 2002
Respectfully
submitted,
EDWARD
D.
SMITH
KANKAKEE
COUNTY
STATE’S
ATTORNEY
AND
THE COUNTY
OF
KANKAKEE
By: HINSHAW
&
CULBERTSON
Edward
D.
Smith
S
e’s Attorney
aries
ne of
Attorneys
Richard
S.
Porter
One
of Its
Attorneys
H1NSHAW
AND
CULBERTSON
100
Park Avenue
P.O.
Box 1389
Rockford,
IL
61105-1389
815-963-8488
Printed
on
100%
Recycled
Paper
70336558v1
815142