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

    Back to top