BEFORE
THE
ILLINOIS
POLLUTION
COUNTY
OF
KANKAE
AND
EDWD
D
)
SMITH,
STATE’S
ATTORNEY
OF
)
J
U
U
KANKAKEE
COUNTY,
)
Pollution
Control
Board
Petitioners,
)
No.
PCB
03-31
)
(Third-Party
Pollution
Control
)
Facility
Siting
Appeal)
vs.
)
)
THE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY)
COUNCIL, TOWN
AND
COUNTRY
)
UTILITIES,INC.
and
KANKAKEE
REGIONAL)
LANDFILL,
L.L.C.
)
)
Respondents.
)
)
)
BYRON SANDBERG,
)
)
Petitioner,
)
No.
PCB
03-33
)
(Third-Party
Pollution
Control
)
Facility
Siting
Appeal)
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.)
No.
PCB
03-35
)
(Third-Party
Pollution
Control
Petitioner,
)
Facility
Siting
Appeal)
)
(Consolidated)
vs.
)
)
THE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY)
COUNCIL, TOWN
AND
COUNTRY
)
UTILITIES,
INC.,
AND
KANKAKEE
)
REGIONAL LANDFILL,
L.L.C.,
)
)
Respondents.
)
NOTICE
OF
FILING
SERVICE
LIST
Dorothy
M.
Gunu,
Clerk
Illinois
Pellution
Control Hoard
James
R.
Thompson Center
100 West Randolph
Street,
Suite
11-500
Chicago,
IL
60601-3218
City
of
Kankakee
Clerk
Anjanita
Dumas
385
E.
Oak
Street
Kankakee, IL 60901
Fax:
(815)9334482
Attorney
Christopher
Boblen
Barmann,
Kramer,
and Boblen,
P.C.
200
East Court St., Suite
502
Kaukak.ee,
IL
60901
Fax:
(815)
939-0994
Donald
J,
Moran
Pederson
& Houpt
161 N. Clark
St., Suite 3100
Chicago, IL
50501-3242
Fax:
(312)
2614149
Kenneth
A.
Leshen
One
Dearborn
Square, Suite
550
Kaukekee, IL
60901
Fax; (815) 933-3397
Byron
Sandberg
P.O.
Box
220
Donovan,
IL
60931
Fax
do
Sandberg
815—486--7327
Richard
S.
Porter
lilushaw &
Culbertson
P.O.
Box
1389
Rockford,
IL 61105448
Fez:
(815)
963-9989
Mr.
Brad
HaUaran
100 West
Randolph,
IVb
Floor
Chicago,
IL
60601
Paz:
(312)
814-3669
PLEASE
TAKE
NOTICE
that
on November
27,
2002,
there was
caused
to be
filed with the
Illinois
Pollution
Control
Board, an
original
and nine
(9)
copies
of the
following
documents,
copies of which
are
attached
hereto:
Respondent’s
Brief to
the Pollution
Control
Board
//
GEE
MUELLER,
Attorney
at Ltw
PROOF
OF SERVICE
I,
Joseph A.
Volini, a
non-attorney,
on
oath state
that I served
a
copy
of
the above
listed
documents
by sending
the same
to each of
the parties
listed
on the
attached
Service List
via
facsimile
and via
U.S. mail
from Chicago,
Illinois,
prior
to
5:00
p.m. on
November
27, 2002,
with
proper
postage
pre-paid.
/1
7/
JOSEI4I
A.
VOLINI
SUBSCRIBED
AND
SWORN
TO
before
“OFTIClAL
SEAL”
methis dayof
,2002.
BETH
GRAUNKE
MYCOmSOn
ExpmsO126
NOTARY
P1IBLIC
GEORGE
MUELLER,
P.C.
Attorney
at
Law
501
State Street
Ottawa,
IL 61350
Phone:
(815)
433-4705
O/2_/
RECEIVED
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD CLERKS
OFFT
COUNTY
OF
KANKAKEE
AND
EDWARD
D.)
NOV
27
2002
SMITH,
STATE’S
ATTORNEY
OF
)
STAfE
OF
ILLINOIS
KANKAKEE
COUNTY,
)
Pollution
Control
Board
)
Petitioners,
)
No.
PCB
03-3 1
)
(Third-Party
Pollution
Control
)
Facility
Siting
Appeal)
vs.
)
)
THE
CITY
OF KANKAKEE,
ILLINOIS, CITY)
UTILITIES,INC.
COUNCIL, TOWN
and
AND
KANKAKEECOUNTRYREGIONAL)
)
f\
D
LANDFILL, L.L.C.
Respondents.
)
)
J
[
)
)
BYRON
SANDBERG,
)
)
Petitioner,
)
No. PCB
03-33
)
(Third-Party
Pollution
Control
)
Facility
Siting
Appeal)
vs.
)
)
TIlE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY)
COUNCIL,
TOWN
AND
COUNTRY
)
UTILITIES, INC.,
and
KANKAKEE
)
REGIONAL
LANDFILL, L.L.C.,
)
)
Respondents.
)
)
)
WASTE MANAGEMENT
OF
ILLINOIS,
INC.)
No.
PCB
03-35
)
(Third-Party
Pollution
Control
Petitioner,
)
Facifity
Siting
Appeal)
)
(Consolidated)
vs.
)
)
THE
CITY
OF
KANKAICEE, ILLINOIS, CITY)
COUNCIL,
TOWN
AND
COUNTRY
)
UTILITIES, INC.,
AND
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
)
Respondents.
)
APPLICANTS’
BRIEF
TABLE
OF CONTENTS
Title
Page
1N’I’I.ODLJTION
1
STi.ND4.1I) OF R/’IEVi7
2
I. THE CITY OF KANKAKEE
HAD JURISDICTION
PURSUANT TO THE NOTICE REQUIREMENTS
OF
SECTION 39.2(b) OF TIIF
.
.
4
A.
Receipt of Registered Mail Notice
by
Someone
Other
Than the Addressee
Was Proper
5
B. The Applicant Determined
the
Identities And
Addresses Of All Owners Of
Record
From the
Authentic Tax Records of Kankakee County
6
C. All
Notices
Were Received In A Timely Manner
.
7
D. All
Property
Owners
Entitled To Service Were
Served
7
II.
THE
PROCEEDINGS WERE
FUNDAMENTALLY
F.
1
41R.
.
10
A.
There
Were No Improper
Pre-filing Contacts
Between the
Applicant
And
the City
11
B, The
Failure Of the City to
Provide Copies Of the
Application To
the State’s Attorney and
County
Board Was
An Oversight By
the City Clerk
With
No
Resulting
Prejudice To Any Person
17
C.
The
City Of Kankakee
Did
Not
Deny
Information,
Documents,
Or the Right To
Participate, To
Any
Person
.
19
D.
No
Person Was Prejudiced Because
Of Limited
Seating Capacity In
the Hearing Room
On the First
Night
Of The Proceedings
21
Title
Page
III.
THE DECISION OF
THE CITY COUNCIL
WAS
SUPPORTED
BY
TIlE
WEIGHT
OF THE EVIDENCE
26
A. The
Proposed Facility
Is Located,
Designed, And
Proposed To Be
Operated So
As To Protect the
Public
health,
Safety-,
.i.nd
‘1elfare
26
B. The
Plan
Of
Operations
For the Facility Is
Designed
To
Minimize
the
Danger
To the Surrounding
Area
From
Fire, Spills Or Other
Operational
Accidents
34
C.
The
Applicant’s
Proposal
Is Consistent
With the
County Solid
Waste
Management Plan
35
IV.
TUE COUNTY
DOES
NOT
HAVE
THE
RIGHT
TO
PRECLUDE
THE
CITY FROM
EXERCISING ITS
PROPER
PLANNING
AND SITING
JURISDICTION
38
A. Any
Action
By
Kankakee County
To
Limit
the
Powers
Of
the City
Of Kankakee
Within Its
Corporate
Boundaries Is
Unconstitutional
40
B.
The
Solid
Waste
Planning
And
Recycling
Act
(“SWPRA”)
Expressly
Preserves
Siting
Authority
To
tjnits
Of
Local
Government
0
41
C.
The
City Of
Kankakee’s
Solid
Waste
Plan
Prevails
Over the
County
Plan
42
D. The
Amendments
To
the
Kankakee
County Solid
Waste
Management
Plan Relied
Upon
by
the
Objectors
Were
Not Adopted
Pursuant To the
Requirements
Of
the
S7RI.A
*00
43
V.
CONCLUSION
44
ii
INTRODUCTION
On March 13,
2002, the
Respondents, Town
& Country Utilities,
Inc. and
Kankakee Regional
Landfill
L.L.C.
(hereinafter
“Town
& Country”) filed
an Application with
the City of
Kankakee for local
siting
approval
of a new
regional
pollution
control facility.
The Application
consisted of five volumes
totaling
approximately
2,500
pages. The
Application proposed
a new municipal
solid waste landfill
of
approximately
400
acres
with a
waste footprint
of 236 acres and an estimated
capacity
of 30
years
(TR
261). A
nearby
small
landfill
owned
and operated
by Waste Management is
scheduled to close in 2004.
(C3265).
Prior
to the public
hearing
on
the Request For Siting
Approval,
appearances
were received
from
sixteen
Objectors
including
Waste Management
Of Illinois,
Inc.,
Kankakee County,
and a citizens’ group
(CRIME)
by their spokesperson,
Doris Jean O’Connor
(C2028-2058).
The
siting hearing commenced
on June 17,
2002 and continued
for eleven
days and nights
until
concluding on June
28,
2002. Public
comments were received
through
July 29, 2002. During
the public
hearing,
Town
& Country called six
expert
witnesses
who testified regarding
various
aspects of the
Application.
Kankakee
County
called
Steven VanHook,
a geologist. Waste Management
Of Illinois called
no
witnesses.
The citizens’
group called Stuart
Cravens,
a geologist.
A number of citizen
Objectors
also
offered
their own testimony.
On August
19,
2002,
the City Council
of Kankakee adopted Findings
of
Fact and Conclusions
of
Law and approved
the Application
of Town & Country
with
a
number
of
conditions
by a
13
to
0
vote
with
one abstention.
(C3261-3292).
Three
of the Objectors,
Kankakee
County,
Waste Management Of
Illinois, and Byron Sandberg
filed timely
Petitions for review
by
the
Board. Those Petitions
were
consolidated
and these
proceedings
ensued.
Although Sandberg
has confmed his objection
on review to the
City
Council’s fmding on
Criterion
2 (Public health,
safety
and
welfare), Town
& Country understands
the issues
collectively
raised
1
by
Petitioners
to
be
that
the
hearings
were
not
fundamentally
fair,
and that
the decision
of the City
Council
was against
the
manifest
weight
of
the evidence
on Criteria
2,
5 and
8. (415
LLCS 5/39.2(a)).
With
regard
to
the Application’s
consistency
with the
County
Solid
Waste
Management
Plan,
Petitioners,
particularly
Kankakee
County,
have
argued
that since
the intent
of
that Plan,
as
hastily
amended
twice
before
the
City’s
siting
hearing,
was
to
pave
the way
for Waste
Management
Of
Illinois
to
seek an
expansion
of
its
existing
facility
from
the
County
while
simultaneously
precluding
the
City frOm
exercising
its
siting jurisdiction,
the
City
was
legally
incapable
of
approving
any request
for
siting
approval.
While
Town
and Country
disagrees,
the
issue
does arguably
present
a mixed
question
of
fact
and
law. The
legal
portion
of this
issue
needs to
be
resolved
within the
context
of our
Supreme
Court’s
holding
in another
case
involving
a
contentious
battle
between
units
of
local
government:
“As
evidenced
in the
instant
case, no
matter
where
a
landfill
is
sited,
neighboring
units
of local
government,
not
participating
in
the landfill’s
development,
will
typically
employ
their
considerable
legal
arsenals
to
prevent
indefinitely
the
development
of
such
facilities.
Thus,
where
the appropriate
unit
of local
government
approves
the
siting of
a pollution
control
facility
pursuant
to
Section
39(c),
and
that
facility
is contained
solely
within that
unit’s
own
geographic
boundaries,
we
hold
that
extraterritorial
third-party
challenges
to
the
siting
decisions
to
the courts
of this
State
are incompatible
with the
purposes
of the
Act.”
City
of
Elgin
v.
County
of
Cook , Village
of
Bartlett
v.
Solid
Waste
Agency
of Northern
Cook
County,
169
Ill.2d 53,
70, 660
N.E.2d
875 (1996).
STANDARD
OF
REVIEW
Section
40.1
of
the Act
requires
the
Board
to
review
the
proceedings
before
the
local
decision
maker
to
assure fundamental
fairness.
In
E & E
Hauling,
the
Appellate
Court
found
that, although
citizens
before
a local
decision
maker
are not
entitled
to a
fair
hearing
by
constitutional
guarantees
of
due
process,
procedures
at the local
level
must
comport
with
due
process
standards
of fundamental fairness.
The
Court
held that
standards
of
adjudicative
due
process
must
be
applied.
(E
& E
Hauling,
451
N.E.2d
at
564;
see
also
Fairview
Area
Citizens
Task
Force
(FACT)
v.
Pollution
Control
Board,
144 Ill.Dec.
659,
555 N.E.2d
2
1178
(
3
rd
Dist.
1990)).
Due
process
requires
that parties
have an
opportunity
to
cross-examine
witnesses,
but
that
requirement
is not without
limits.
Due
process requirements
are determined
by balancing
the
weight
of the
individual’s
interest
against
society’s
interest
in
effective and
efficient governmental
operation.
Waste
Management
of
Illinois, Inc.
vs. Pollution
Control
Board,
175
Ill.App.3d
1023,
530
N.E.2d
682, 693
(2’ Dist. 1988).
The
manner
in which the
hearing
is
conducted,
the opportunity
to be
heard,
the existence
of
ex parte
contacts,
the prejudgment
of adjudicative
facts,
and the
introduction
of
evidence
are
important,
but not rigid,
elements
in
assessing
fundamental
fairness.
Hediger v.
D
& L
Landfill,
Inc.,
(PCB
900163,
December
20, 1990).
The above
standard
for
review
has been
frequently
repeated
in the
decisions
of this Board.
However,
recent
decisions
of the
Illinois Appellate
Courts
suggest
that
the
fundamental
fairness
standard
be
viewed in
the context
of the siting
authority’s
role as both
a quasi-legislative
and
quasi-adjudicative
body,
and that
by
reason
thereof the
standard should
be restricted
rather
than
expanded.
For example,
the
Third District
Appellate
Court
has stated
in Land
& Lakes Co.
v. Pollution
Control
Board,
309 Ill.App.3d
41, 743 N.E.2d
188
(
3
td
Dist.
2000):
“A
nonapplicant
who participates
in a
local pollution
control
facility
siting
hearing has
no property
interest
at
stake
entitling
him
to
the
protection
afforded
by the constitutional
guarantee of
due process.
South
Energy
Corp
v.
Pollution
Control Board,
275
Ill.App.3d
84,
211
Il1.Dec.
401,
655 N.E.2d
304
(1995). However,
under
Section
40.1
of the Act
(415
ILCS
5/40.1
(West
1998)),
such
a
party
has a statutory
right
to
“fundamental
fairness”
in the
proceedings
before
the local
siting authority.
Southwest
Energy
Corp,
275 Ill.App.3d
84, 211
Ill.Dec. 401,
655 N.E.2d
304. A
local
siting authority’s
role
in
the siting
approval
process
is both
quasi-legislative
and
quasi-adjudicative.
See Southwest
Energy Corp,
275 Ill.App.3d
84,
211 Ill.Dec.401,
655
N.E.2d
304.
In
recognition
of
this dual role,
courts
have interpreted
the
right to fundamental
fairness
as incorporating
minimal
standards
of procedural
due
process,
including
the
opportunity
to be
heard,
the
right
to cross-examine
adverse
witnesses,
and
impartial
rulings
on the evidence.
Daly
v.
Pollution
Control
Board,
264
Ill.App.3d
968,
202 Ill.Dec.
417,
637 N.E.2d
1153
(1994).”
It is obvious
from the
foregoing,
therefore, that
fundamental
fairness
is
a
standard derived
from
and
interpreted
in context.
As such, fundamental
fairness violations
should
not be
found
based
on
isolated
3
incidents,
inadvertent
problems,
or
harmless
errors
so
long
as the
“minimal”
requirements
are
satisfied.
While
the
determination
of
fundamental
fairness
is
made
on
a
de
novo
basis,
the
Board
acts
as
an
appellate
type
body
regarding
the
nine
substantive
criteria,
confining
its
review
to
the
record
made
before
the local
siting
authority.
When
examining
local
decision
on the
nine
criteria
under
Section
39.2
of
the
Act,
the
Board
must
determine
whether
the
local
decision
is
against
the
manifest
weight
of
the
evidence.
McLean
County
Disposal.
Inc.
v.
County
of
McLean,
207
Ill.App.3d
477,
482,
566
N.E.2d
26,
29
(4t
Dist.
1991);
Fairview
Area
Citizens
Task
Force
v.
PCB,
198
Ill.App.3d
541,
550,
555
N.E.
2d
1178,
1184
(
3
1d
Dist.
1990).
A
decision
is
against
the
manifest
weight
of
the
evidence
if
the
opposite
result
is
clearly
evident,
plain,
or
indisputable
from
a
review
of
the
evidence.
CDT
Landfill,
PCB
98-60,
slip
op.
At
4;
Harris
v.
Day,
115
Ill.App.3d
762,
769,
451
N.E.2d
262,
265
(
4
th
Dist.
1983).
It
is
not
the
duty
of
the
Board
to
reweigh
the
evidence,
to
judge
the
credibility
of
the
witnesses,
or to
substitute
its
opinion
for
that
of
the
local
decision
maker.
I.
THE
CITY
OF
KANKAKEE
HAD
JURISDICTION
PURSUANT
TO
THE
NOTICE REQUIREMENTS
OF SECTION
39.2(b)
OF
THE
ACT.
Petitioners
argue
that
the
City
Council
lacked
jurisdiction
to
conduct
a
siting
hearing
because
the
Applicant
failed
to
meet
the
pre-filing
notice
requirements
of
Section
39.2
of
the
Act.
They
raise
a
number
of
different
notice
issues,
including:
failure
to
give
notice
to
all
required
landowners,
notice
not
being
received
by
landowners
or
their
authorized
agents,
and
that
notices
were
not
timely.
The
only
evidence
of
notice
in
the
local
siting
hearing
record
is
the
Affidavit
with
attachments
of
Tom
Volini,
President
of
Town
&
Country
Utilities,
Inc.
and
Kankakee
Regional
Landfill,
L.L.C.
offered
and
admitted
as
Applicant’s
Exhibit
#2.
Neither
Petitioners
herein
nor
any
other
Objectors
offered
evidence
or
raised
any
notice
or
jurisdictional
issues
during
the
siting
hearing
process.
4
However,
Petitioner, Kankakee County, made
a detailed
and
layered
argument alleging lack of
jurisdiction
due to notice
defects in its Proposed Findings
to the Kankakee City
Council.
Since
the Board
ordered that the
fundamental fairness hearing, which
commenced
on November 4,
2002, would also
consider
jurisdiction, the Hearing
Officer, over objection
from the Petitioners, received at that hearing
additional evidence
regarding notice from both Tom
Volini and Patricia VonPerbandt, who was involved
in preparation
of the pre-filing notices and personally served
some of them.
The
County makes all of its notice objections in summary form in its Petition For Review by this
Board, and, since the parties herein are required to
file simultaneous briefs, Town &
Country will respond
to the more detailed arguments set forth in the County’s
Proposed Findings
of Fact
submitted at the
local
siting hearing.
A.
Receipt of Registered Mail Notice
by
Someone Other Than The
Addressee Was Proper.
The
County initially argues
that, “The
return
receipts
of numerous
parcels
were signed by
individuals other than the owners of the property, and the authority
to
accept service of process on behalf
of the owners
was
not established by
the Applicant.” (C2690).
Town
&
Country acknowledges that
the
return receipts (green cards) on some registered mail were signed
by
individuals other than the addressee.
of the mail. The County in support of its proposition that when the signor of
registered mail is not the
addressee, there must be defmitive evidence that the signor is the agent for service of process,
cites
the
Board’s decision in IEPA vs. RCS,
Inc. and Michael Duvall, AC96-12 (Dec.
7,
1995). First of all, that
case is an adhiinistrative citation
case where
the
Agency
was operating
under
a
different service standard.
Secondly,
even with the more stringent service standard
in
administrative citation
proceedings, the Board
pointed out that had
the
registered mail been sent to Duvall’s home rather than
his place of work, there
would have been no
problem with someone else signing for the receipt. Curiously,
the
County
supports
the proposition that signature of a return receipt by a
non-addressee voids service
by
citing the
Board’s decision in
DiMaggio
vs Solid Waste Agency ofNorthern Cook
County, PCB 89-13
8
(January
5
11,
1990).
In
fact,
the
Board
in
DiMaggio
reached
the
opposite
conclusion
when
it
held:
“The
Board
has
previously
addressed
this
issue.
In
City
of
Columbia
et
a!.
vs.
County
of
St.
Clair
and
Browning
Ferris
Industries
of
Illinois,
Inc.,
69
PCB
1
(PCB
85-223,
85-177,
85-220
Consolidate,
April
3,
1986),
affirmed,
162
Ill.App.3d
801,
516
N.E.2d
804
(
5
th
Dist.
1987),
the
Board
specifically
found
that
service
was
not
defective
when
someone
other
than
the
addressee
signed
for
and
accepted
the
notice.
The
Board
feels
that
this
case
is
dispositive
of
Petitioners’
argument.
The
notices
were
timely
mailed,
26
days
in
advance
of
filing
the
request,
and
the
City’s
jurisdiction
is
not
affected
by
who
acknowledged
receipt
of
the
notice.”
(DiMaggio
at
page
7).
In
the
instant
case,
the
Affidavit
of
Tom
Volini
regarding
notice
indicates
that
pre-fihing
notices
were
mailed
by
him
23
days
prior
to
the
filing
of
the
siting
Application.
(Applicant’s
Exhibit
#2,
paragraph
6).
B.
The
Applicant
Determined
the
Identities
and
Addresses
Of
All
Owners
Of
Record
From
the
Authentic
Tax
Records
Of
Kankakee
County.
The
County
also
argues
that,
“There
is
no
jurisdiction
because
the
Applicant
failed
to
present
evidence
that
the
authentic
County
tax
records
were
used
to
determine
the
identities
and
addresses
of
the
owners,”
and
attaches
in
support
of
the
argument
the
Affidavit
of
the
Treasurer
of
Kankakee
County.
(C2694,
C2715).
The
County’s
argument
is
directed
at
the
statement
in
Tom
Volini’s
Affidavit
that,
“To
determine
which
Kankakee
County
records
are
the
‘authentic
tax
records
of
the
County’,
I
spoke
with
employees
in
the
Office
of
the
Kankakee
County
Recorder
and
the
Kankakee
County
Supervisor
of
Assessments.
During
these
conversations,
I
was
told
that
the
most
accurate
and
up-to-date
records
of
ownership
were
maintained
in
the
Office
of
the
Kankakee
County
Supervisor
of
Assessments.”
(Applicant’s
Exhibit
#2,
paragraph
4).
The
Affidavit
of
the
County
Treasurer
does
not
state
or
even
imply
that
he
maintains
the
çJy
authentic
tax
records
of
Kankakee
County.
Maintaining
a
tax
record
is
apparently
a
somewhat
complex
task,
and
it
appears,
one
that
is
frequently
shared
among
various
County
offices.
This
situation
was
described
and
discussed
in
Bishop
vs.
Pollution
Control
Board,
235
I1l.App.3rd
925,
601
N.E.2d
310
(5th
Dist.
1992),
where
the
Court
held
that
the
County
Clerk’s
Office,
the
Assessor’s
6
Office,
and
the
Treasurer’s
Office,
by
each
playing
a
role
in the
property
tax
cycle,
all
maintained
“authentic
tax
records”
within
the
statutory
meaning
of
that
term.
In
fact,
Patricia
VonPerbandt
offered
uncontradicted
testimony
at
the
fundamental
fairness
hearing
that
her
inquiry
revealed
that
the
Kankakee
County
Treasurer
and
Kankakee
County
Supervisor
of
Assessments
share
a common
computer
database
which
contains
the
County’s
most
up-to-date
authentic
tax
records.
(Bd.
TR
11-6
293).
C.
All
Notices
Were
Received
In a
Timely
Manner
The
County
also argued
that Applicant
failed
to timely
serve
the
Illinois
Central
Railroad
because
registered
mail sent
to
the Railroad’s
Registered
Agent
for service
of
process
at
208 N.
LaSalle
Street,
Chicago,
IL
was
not signed
for
until
March
6, 2002.
The
County
conveniently
neglects
the
fact
that
two
(2)
notices
were
sent
to the
Railroad
at two
(2)
alternative
addresses
including
the Railroad’s
business
office
at
17641
S.
Ashland
Avenue,
Homewood,
IL,
and that
registered
mail
sent
to
the
Illinois
Central
Railroad
at this
address
was
signed
for
on
February
20,
2002,
that
date
being
21
days
prior
to the
date
on
which
the
Siting
Application
was
filed.
1).
All
Property
Owners
Entitled
To
Service
Were
Served
The
County
lastly
alleges
that
the
Applicant
failed
to serve
all of
the
owners
of
Parcel
13-16-23
-
400-001.
Tom
Volini’s
uncontradicted
Affidavit
of Service
actually
had
this
parcel
listed
twice
with
different
owners
and
addresses
for each
listing.
The first
listing
shows
the
owners
as
Gary
L.
Bradshaw,
James
R.
Bradshaw,
J.D.
Bradshaw,
Ted
A.
Bradshaw,
Denise
Fogle,
and
Judith
A.
Skates
all
located
at
22802
Prophet
Road,
Rock
Falls,
IL 61071.
The
second
listing
of the
same
parcel
shows
the owner
as
only
Judith
A.
Skates,
203
S.
Locust,
Onarga,
IL
60955.
The
uncontradicted
Affidavit
of
Tom
Volini
indicates
that
registered
mail
was
sent
to all
of
these
owners
on February
18,
2002.
(Applicant’s
Exhibit
#2,
paragraph
6).
Paragraph
7
of
the same
Affidavit
lists
the owners
who
did
not accept
delivery
of their
7
registered
mail,
but omits
from
that
listing
the group
of owners
at
the
Rock
Falls
address.
Tom
Volini
explained
this
apparent
contradiction
in his
testimony
during
the
fundamental
fairness
hearing
when he
said
that
he deemed
the
registered
mail
service
on Judith
Skates
at the Onarga
address
which
was timely
accepted
on February
20, 2002
to
satisfy
the
service
requirement
for that
parcel.
(Bd.
TR. 11-6
377).
Patricia
vonPerbandt
further
testified
that
she attempted
personal
service
on
all
of
the individuals
listed
at
the
Rock
Falls
address
and
encountered
an
individual
there
who
identified
herself as
the
daughter
of
Judith
Skates,
and who
indicated
that
none
of the listed
individuals
lived at
the Rock
Falls address,
some of
those
individuals
lived
out of
state, some
of
those individuals
were
dead,
and
that all
matters
relating
to that
parcel
were
being
handled
by
Judith
Skates
who
lived
in
Onarga,
at the
address
where she
was served,
(Applicant’s
Exhibit
#2),
(Bd.TR.
11-6 285-288).
It appears
that
Town
& Country
has
created
an issue
where
none previously
existed
by
attempting
to
do
too much.
There
was
conflicting
information
in
the
authentic
tax
records
of
Kankakee
County
regarding
the ownership
of
Parcel
13-16-23-400-001.
In retrospect,
Town
& Country
should
have
just
listed the
parcel
as owned
by
Judith
Skates as
that listing
was
also
supported
by the authentic
tax
records.
However,
in an
effort
to cover
all bases,
Town
& Country
listed
and served
both
alternate
owners.
Patricia
VonPerbandt,
in
her testimony
at
the fundamental
fairness
hearing,
explained
the
conflicting
ownership
information
regarding
this
parcel
when
she
introduced
three
documents
secured
from
the
Kankakee
County
Assessor’s
and
Treasurer’s
Office:
the
Assessor’s
property
owners’
card
showing
the
group
in Rock
Falls
(including
Judith
Skates)
as owners,
the Treasurer’s
tax
bill
which
was sent
to Judith
Skates
in
Onarga,
and a name
and
address
change
form for
the parcel
received
by
the Assessor’s
Office.
(Board
Hearing,
Applicant’s
Exhibits
1, 2,
3).
This
form lists
the
owners
as “Skates,
Judith
and
Bradshaw”
and
the address
in Onarga
and
is signed
by
Judith Bradshaw
Skates.
Initially,
Town
&
Country
notes
that
it is
somewhat
disingenuous
for
the County
to
allege
that
Applicant
failed
to
serve
the
owners
of
this
parcel when
the
Treasurer’s
record
shows
that the
tax
bill
was
8
sent to
Judith
Skates
in Onarga,
and the
County
otherwise
argues
that
the
Treasurer’s
records
are
the true
“authentic
tax
records”
of the
County.
Regardless,
a
common
sense
evaluation
of the
Exhibits
introduced
at the
Board
hearing
regarding
this parcel
indicates
that
the
owner
for
service
of
notice
purposes
is
Judith
Skates
in
Onarga,
and
she
was
timely
served with
registered
mail.
Moreover,
service
of registered
mail
on
only
one
of
a
number
of heirs
when
that
one person
appears
to
be
the
designee
for receipt
of
mail has
been
approved
by
both the
Board
and the
Appellate
Court
with
the holding
that,
“It
is true that
only
one
heir
received
notice,
but
only
that
heir was
listed
by name
and address
in the
tax records
to receive
that
tax
statement
on
behalf
of all
the heirs.”
Wabash
and
Lawrence
Counties
Tax
Payers
and
Water
Drinkers’
Association
vs.
Pollution
Control
Board,
198 Ill.App.3rd
388,
555
N.E.2d
1081
(
5
th
Dist.
1990).
The
SkateslBradshaw
situation
here is identical.
Personal
service
was
attempted
on
all of the
listed owners,
including
Judith
Skates
in
Rock Falls,
but
none of
them
lived
at
that address.
The
person
at
that
address
referred
the
process
server
to
Judith
Skates.
Judith
Skates
was listed
on
the Treasurer’s
record as
the
person
who got
the tax
bill at
her
address
in
Onarga
Illinois.
Judith
Skates
was timely
served
in
Onarga.
Although
the previous
argument
demonstrates
that
the
Applicant
successfully
met
the pre-filing
notice
requirements
under
any
legal
standard
which has
heretofore
existed,
the
Board
is
asked
to consider
a
recent
Illinois
Supreme
Court
decision
which
completely
revises
and
significantly
simplifies
the
previous
notice requirement.
Siting
applicants
and
opponents
both have
previously
been
operating
under
the
interpretation
of the
notice
requirement
in
Ogle
County
Board
vs. Pollution
Control
Board,
272
Ill.App.3rd
184,
649 N.E.2d
545
(fld
Dist.
1995) which
held
that actual
timely
receipt
of pre-fihing
notice is
required.
The
Appellate
Court
in the
Ogle Coun’
decision
seemingly
overruled
a
previous
line
of
PCB decisions
construing
the notice
requirement
as
requiring
initiation
of service
sufficiently
far in
advance
to reasonably
expect
receipt
of
notice
by the
addressee
14
days in advance
of
the
filing
of
an
application.
The
Qg]
County
Court
relied
on the
Supreme
Court’s
previous
decision
in
Avdich
v.
Kleinert,
69
Ihl.2d
1, 370
N.E.2d
504 (1977).
9
The Ogle
County Court’s
reliance
in Avdich
was
misplaced,
and
the decision in Ogle
County
has
been
effectively overruled
by
People
ex rel. Devine
vs.
$30,700
United States
Currency, 199 IL2d
142,
766 N.E.2d
1084 (2002).
The
Devine
case
was a forfeiture
proceeding
where the required
notice
provision
is as follows:
“If the
owners
or interest
holders
name and
current address are
known,
then (notice
or service
shall
be
given) by
either
personal
service
or mailing
a copy
of
the notice by certified mail,
return receipt
requested,
to that address.”
(725
-LLCS
150/4(a)(1)).
In Devine,
our Supreme Court held
that
certified
mail
notice was
complete
upon
mailing despite the “return
receipt requested”
requirement in the
notice
provision.
In explaining
its holding,
the
Court engaged
in a lengthy discussion
wherein it distinguished
the
meaning
of the “return
receipt requested”
requirement from
the
notice
requirement in Avdich which
was
“a
returned
receipt
from the addressee.”
(199
Ill.2d 152,
153, 766 N.E.2d 1090,
1091).
The Court concluded
that
the
“return receipt
requested”
language did not require
actual
receipt
by the addressee.
In the instant case,
it
is
undisputed
that Town & Country
sent notices
by registered mail, return
receipt requested,
nine
days
before the deadline for
service
of notice
to all property listed
on the authentic
tax records of
Kankakee County
including all
of
the alternate owners of
Parcel 13-16-23-400-001.
Lastly, the County
argues,
in its Proposed
Findings
to the
City Council, that the pre-filing
notices,
themselves,
were
defective
because they were
mailed
with other
documents including
a
Property
Value
Guarantee
Program
and cites
in
support
the
unsworn public comment
of A. Carol Taylor.
(C2695). This
is
rebutted
by the sworn testimony
of Patricia VonPerbandt
that she personally
placed the notices
in the
envelopes with
no other documents
and sealed the envelopes
before
delivering
them to Tom Volini
for
mailing. (Bd.TR.
11-6 284).
II.
THE
PROCEEDINGS
WERE FUNDAMENTALLY
FAIR
Petitioners allege
that
the
hearings were
fundamentally unfair
because of
four defects in
the
proceedings.
First,
they
allege that pre-filing
contacts between the
Applicant and
City
of
Kankakee
representatives,
particularly
the Applicant’s
presentation at a
City Council meeting some
three weeks
10
before
the
Application
was filed,
fatally
and irrevocably
biased the City Council in favor
of the
Application.
Secondly,
they allege that the City’s failure
to follow its own
Siting
Hearing Ordinance by
not
tendering
copies of the Siting
Application to County representatives
was fundamentally unfair.
Thirdly,
Petitioners argue
that the City’s procedures in requiring
Freedom
Of
Information
Act
forms to be
filled out
were confusing
and oppressive, and that the hearing
registration
requirements were confusing
and contradictory.
Lastly,
they allege that failure to accommodate
everyone
in an unexpected overflow
crowd on the
first night of the hearing violated
the requirement
of
a
public hearing and was fundamentally
unfair.
A.
There
Were No Improper Pre-fihing Contacts Between
the Applicant And the
City.
During
the
fundamental fairness hearing before the Board,
Petitioners elicited
extensive
testimony
from
both
the Mayor of Kankakee and the
City
Attorney
that
Town & Country had frequent pre-filing
contacts with the
City. The testimony was objected to whenever elicited, said objections were sustained
by
the Board’s
Hearing Officer, and the testimony is part of
the record only in the form of
Petitioner
Kankakee
County’s offer of proof. Generally, this testimony consisted
of
admissions that the City had
annexed the property on which the
proposed site is located with a view toward
possible
siting
proceedings,
the
City had received input from Town & Country among
others
in drafting
its
own Solid Waste
Management Plan and Regional Pollution
Control
Facility
Siting Ordinance, and
the
City had engaged
in
extensive negotiations with
Town &
Country regarding
the terms of a host
agreement. Petitioners
point to
no
actual prejudice resulting
from any of these ordinary pre-fihing business contacts between
the
City and
Town & Country.
According to Petitioners, the most egregious pre-fihing contact between the City and
Town
&
Country occurred on February
19,
2002 when
a
number
of
Town & Country
representatives
appeared at
and gave an
informal
presentation
to the City
Council
at one of its regular meetings.
The minutes of that
meeting contain
a
complete transcript
of
what
was
said
(C3 13 9-C3 178). The
Petitioners, particularly
11
Kankakee
County,
argue that the
appearance
of
Town &
Country and some of its
representatives
to speak
to the
City Council
at its regular meeting
on February 19, 2002,
before
the
Application
For Siting
Approval
was
filed,
constitutes
a prejudicial
ex
parte contact,
and,
to a
lesser degree, that it
improperly
biased
the City Council
members in favor
of
the
Applicant.
Objectors essentially
argue that Town
&
Country was
able
to improperly
bolster
its own credibility
and discredit
potential objectors
in
a captive
forum. While
a cynic might
argue that this is the
very purpose of pre-siting
lobbying
in all of its forms,
including
approved and widely
used (including
by
Waste Management)
pre-filing
reviews, the Objectors’
references to
the record
of
the February
19
th
meeting are taken
out of
context
and mis-characterize what
actually
occurred. Since the entire
City Council
meeting was transcribed
and this
transcript
is part of
the
record, the Board
is urged to review
the
entire transcript
in order to verif5 that
Town
&
Country’s
presentation consisted
principally of an explanation
to the City
Council
of
the siting
procedure.
Throughout
this presentation,
the
City
Council members were
reminded that
they had to make their
ultimate
siting
decision based on
the evidence as it
related
to
the statutory
siting criteria.
In fact, each
of
the
speakers
for
Town
& Country on February
19
th
at various
times
correctly reminded
the City
Council
of
its obligation to
make
its
decision based
on the evidence. Tom
Volini, one
of the
principals
of Town
&
Country, stated:
“You are called
upon
to be judge
and jury. Judge and
jury in a
process
that
formally
commences
tomorrow when
there is notices
received
by 60 units
of government
and the property owners
and
legislators
to commence this
process formally
of
landfill site
location
approval
under the
Environmental Protection
Act.
When
that
process starts, we
want you to have your
own copy of
the relevant
pages
of the
statute.
We want you to know
the
proofs you
are called upon to
make sure that
we
make. Or if you are
to
vote no.
That’s
what the
statutes
say
and
the cases
say. So,
if, if
Envirogen can’t convince
you and
Devin Moose can’t
convince you of
the
quality of his
calculations,
the
integrity of his design,
and the compliance
of that
design
with
the Environmental
Act,
you get
to vote no. ...
We
expect your
questions.
We expect
your
scrutiny.
We expect to
be
held
to
the
highest
standard.
We’re
on
trial. The trial
started a long
time ago. We’re on
trial
with you.
You’re
on
trial.
Everyone expects you
to make the
proper informed
decision under the
Environmental
Protection
Act. The
criteria
that
Devon will talk about
in his
presentation.
The fact that you
sit as judge and
jury. The fact
that after
tonight
we can’t
talk to you.” (City
Council
Minutes,
C3146)
12
George
Mueller, Attorney for Town & Country, told the
City Council:
“You,
as City Council members, are the
jury.
And the Pollution Control Board
in looking at these cases when they have
been
appealed in the past, has
said that
local decision makers, whether they
be County Board members or City
Council
members,
adopt a quasi-judicial
role.
Which means that, in effect, you
put on the
mantel ofjury and you have to now make decisions, not based upon your
elected status
but rather based upon the evidence that
you
hear at
a
hearing.
There
are two things
that
the Pollution Control
Board, the Courts, and the LEPA
are
concerned about at these hearings. Number one, that
the evidence
which
will
be presented supports the 10 criteria which an applicant must satisfy in order to
get an affirmative vote. We need to get 10 out of 10. Nine out
of
10 and we lose.
The second thing they look at is that the process is fundamentally fair.
What
that
has been construed to mean
by
the Courts in this
State
is
that
the decisions are
made on the evidence. They are not made on things that are said in
hallways,
they are not made based on newspaper editorials, they are not made based
on
what people tell
you on
the street. Decisions are made
on
the evidence.” (City
Council Meeting Minutes, C3 147)
Devin Moose, Town & Country’s Chief Engineer, stated among other
things, “We need to make
the decision based on the manifest weight of the evidence... We need to
demonstrate. We need to
demonstrate that there is a need for the facility.., and it’s that kind of approach, not
just accepting
our
work, but putting in the data and the proof so that you can check the
validity of our
conclusions
yourself...
And,
what I would urge you to do is remember two things. One, you
make the decision on
the evidence.”
(City Council Minutes, C3149, C3150,
C3152).
Jaymie Simmon,
on
behalf of Town & Country, stated, “The
reason that we are
telling
you this is
just simply to add some more weight to the idea
that this is an important, important
decision and it will
require of you some mental rigors in understanding the
science and hearing the
evidence in making your
decision
based upon it.” (City Council Minutes, C3
153).
Lastly, in answering the question about
the
status
and
rights of
potential objectors, Attorney
Mueller stated, “They can have an
attorney. They can cross-examine
our witnesses. They
can
put on their
own witnesses. And frankly, we welcome that
because it is a truth seeking
process that the
hearing
is
supposed
to
be,
and
if somebody can put up evidence that disputes
ours it is going
to make
the
decision
13
more clear to the
City Council.” (City Council Minutes, C3
166).
The Petitioners’ arguments that an informal, informative
and
accurate
presentation by Town &
Country
to the City Council before filing the siting Application
was tantamount to a hearing,
prejudiced
the City
Council in favor of the Applicant, and was an improper ex parte contact are
unsupported
by the
facts and the law.
First of all, there is not a scintilla of evidence in the
record
that
any City Council
member based his or her decision on anything other than the evidence presented at the siting hearing.
Moreover, both the Board and the Appellate Courts have specifically found that an applicant’s pre
filing presentations to a city council are not fundamentally unfair. In Southwest Energy vs.
Illinois
Pollution
Control Board, 655 N.E.2d 304
(
4
th
Dist. 1995), the Court found no
problem with the pre-filing
luncheon where the applicant
and the
city council members attended, but the general public
was
not
allowed. No one knows
what was said at
the
private luncheon in Southwest
Energy, but the Courts
approved
of
this
luncheon nonetheless. Here, Town & Country made its
presentation at an open and
public City Council meeting where every word was transcribed.
A similar factual situation was considered by the Board in Beardstown
Area
Citizens For A Better
Environment vs.
City
of Beardstown
and Southwest Energy Corporation, (PCB 94-98),
where the
Board
was
asked
to consider the propriety of a
pre-filing luncheon between the City Council
of Beardstown
and
the Applicant followed by a reception at
City Hall where known opponents were not invited. In that case,
the Mayor
was also
designated
as
the Hearing Officer, as was initially the situation
here. The Petitioners
at
Beardstown alleged, “that the behavior of the Mayor and several City
Council members demonstrates that
they prejudged the facts and the law
and
so
should have been disqualified.”
(PCB 94-98 at 9). The Board,
however, rejected these arguments
finding that there are no ex parte restrictions
prior
to the filing of an
application for siting approval. The Board also
rejected
the fundamental
fairness
claims
of
bias arising
out
of the
alleged
favoritism of
the Mayor and certain City Council
members toward the
Applicant.
In Residents
Against
A
Polluted Environment vs.
County
of LaSalle and
Landcomp Corporation.
14
(PCB 96-243), the Board went even further than it had
in the Beardstown ease and created a bright
line test
whereby
evidence of pre-fihing contacts between
an
applicant and
a
decision
maker would not even be
considered
for purposes of evaluating the fundamental fairness
of
the proceedings.
The Board affirmed
this ruling in the second
Landcomp
case,
(Residents
Against
A Polluted
Environment
vs.
County
of
LaSalle and Landcomp
Corporation,
PCB 97-139), where, in discussing its decision to not even receive
evidence regarding pre-fihing contacts between the applicant and decision makers, the Board stated, “We
held
that
because evidence of
these
contacts is not
relevant
to
the siting
criteria and
is not
indicative
of
impermissible pre-decisional bias of the siting authority, we fmd that the County
Hearing
Officer’s
failure
to
allow testimony
concerning the allegations did
not
render the proceedings fundamentally unfair.
Similarly,
the
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,
themselves,
were conducted in a
fundamentally fair
manner.” (PCB 97-139 at 7). This decision was affirmed by the Appellate Court
(Residents
Against
A
Polluted Environment
vs.
Illinois Pollution Control Board, 687 N.E.2d 552
(3’ Dist.
1997)).
Petitioners argue
that bias and prejudgment are to be inferred as the result of the Applicant
appearing
before the
City
Council on February 19, 2002.
The
record, however, is totally devoid of any
evidence of actual bias or
prejudgment. The record is also totally devoid of any evidence that any City
Council
member based his or her
decision
on anything other than the evidence presented at the siting
hearing.
No City Council
members were
called to
testi1’
at the
fundamental fairness
hearing,
and those
City representatives
who
did testii,’ on the subject opined that they were certain that the
City
Council
disregarded what they heard on February
19
th
and the
Council based its
decision exclusively on the
evidence at
the siting hearing.
Contrary
to
Petitioners’ assertion regarding
the
inference
of bias,
there is a’well established.
principle
that elected officials are presumed to act objectively, and there must
be at
least
a
minimal
15
showing
of actual
bias
to
overcome
that presumption.
Residents
Against A Polluted
Environment vs.
Illinois
Pollution Control
Board, 293
Ill.App.3d 219, 687
N.E.2d 552
(3 Dist. 1997).
Petitioners have
argued that
the cumulative
effect of
pre-filing contacts
should be deemed to
constitute
bias
and
prejudgment
on the
part
of the City
Council.
They
point
to
the
involvement
of the
City
and
the
Applicants
in
the initial
annexation
proceedings,
the
parties negotiating a Host
Agreement,
and the
fact that
economic
benefit
will be derived
by the
City.
All of these arguments
have
been previously
raised
and dismissed
in other siting
cases.
A city’s
participation in and
even support of
the annexation process
as
a precursor
to an applicant
filing for siting approval
on the annexed
land is not evidence
that
the decision
makers
are
biased or have prejudged
the
application.
Concerned
Adjoining
Owners
vs.
Pollution
Control
Board,
288
Ill.App.3d
565, 680 N.E.2d 810
(
5
th
Dist.
1997).
A portion of the Court’s
decision
is
instructive in
this
case:
“The facts of the
instant case do not reveal
that the Council
had made any
prejudgments
about the criteria
for siting
approval. On the contrary,
the
records
shows
that the Council asked
relevant questions
of all of
the
witnesses
about each
of the criteria. The questions
did not demonstrate
any bias for or against
siting approval.
The objectors
did
not present any
evidence
to show how the
Council was
biased, other than the
generic
argument that
it must have been biased
because it had already
taken on
the preliminary
actions necessary
to get to
the
siting hearing stage. We
do
not
find this argument
sufficient
to overcome
the presumption that
the
Council acted
fairly and objectively
where the record
does
not
indicate any
prejudgment of the statutory
criteria for
making the siting
decision.”
(Concerned
Adjoining
Owners
at 288 Ill.App.3rd
573,
574).
Likewise, the fact that
economic benefit is
likely
to result
to the City from
successful
siting is
irrelevant
on the issue of bias or
prejudgment. Appellate
Courts have
even
gone
on to
say that
municipalities
may actually consider
such economic benefit in
their siting
decisions
so
long as they
find
that the
other
statutory
criteria have been met.
Fairview Area Citizens
Task Force vs.
Illinois Pollution
Control Board, 198
Ill.App.3rd 541, 555
N.E.2d 1178
(
3d
Dist. 1990).
Christopher
Bohlen, the Kankakee
City Corporation
Counsel who later became
the Hearing
Officer,
summed
it up best when he explained
at the Board fundamental
fairness hearing
why he did not
16
object
to
anything
said
by the
Town
&
Country
representatives
at the
February
19
th
City
Council
Meeting:
“Again,
as I indicated,
this was
part
of the give
and
take process.
I
didn’t...
It
made
no difference
to me
what
they said
as long
as
there
was
something
not
patently
illegal
or even
latently
illegal
at what
they
said,
and
I heard
nothing
other
than
what I
consider
the
normal
give
and
take.
They
were
trying
to
say
what
they
were
going
to
prove.
I had
heard
a
number
of
times
what
Waste Management
was going
to do
to them
in
the process
of
this
hearing,
and
what the
County
was
going to
do
with them
and
so
did
the
Aldermen.
I was
not concerned
by
the
statements
or
any
of the
people
who
talked
that
night
said
... made.
Those
did
not
give
me
rise
to
believe
there was
anything
improper
going
on.” (BD.
TR.
11-4-02
293,
294).
B.
The
Failure
Of
the
City
To
Provide
Copies
of the
Application
To
the
State’s
Attorney
and
County
Board
Was an
Oversight
By the
City
Clerk With
No
Resulting
Prejudice
To any
Person.
On the first
night
of the
siting
hearing,
Kankakee
County,
by
Motion,
pointed
out that
the
City
of Kankakee
Siting
Ordinance
(No. 65)
provides
at
Section
4-D-1
that
upon receipt
of
a proper
and
complete
application
and payment
of
the applicable
filing fee
deposit,
the City
Clerk
shall date
stamp
all
copies
and
immediately
deliver
one
copy
to the
Chairman
of the County
Board
and
one
copy
to
the
Kankakee
County
Solid
Waste
Director.
(TR.
29)
The
City
acknowledged
that
it failed
to
follow its
own
Siting
Hearing
Ordinance
in this
regard,
and
offered
no
explanation
other
than
mere
oversight,
with the
City
Clerk testifying
that
she
was
unaware
of
the
requirement
until
it was brought
to her
attention
after
the
siting
hearing.
(Bd.TR
11-6
251-257).
The
City Clerk’s
failure
to give
copies
of the Application
to
the
County
is nothing
more
than an
oversight.
(Bd.
TR. 11-6
218)..
Kankakee
County
never
argued,
either at
the
original
siting
hearing
or at
the Board
fundamental
fairness
hearing,
that
it
was prejudiced
by not
immediately
receiving
two
copies of
the Siting
Application.
The
record
is clear
from
the transcript
of
the siting
proceedings
that
County
legal
representatives
cross
examined
Town
&
Country’s
witnesses
vigorously
and
extensively,
that
the
cross-examination was
based
on detailed
knowledge
of
the
contents
of
the Siting
Application,
and
that
the County
even
presented
its
own geologist
who had
reviewed
the
portions
of
the Application
pertaining
to
his area
of
expertise
in
17
detail.
(TR. 1210)
At the Board fundamental fairness hearing, the
City presented documentation showing
that the
County’s expert consultant,
Chris
Berger,
had obtained a copy
of the
Siting Application almost
two
months prior
to commencement of the public hearing. (Bd. Hearing
City
Exhibit 1). Waste
Management
Of Illinois had secured their copy
of
the
Application even earlier.
(Bd. Hearing City Exhibit
2).
The County
objected at the fundamental fairness hearing to questions asking the
County
Board
Chairman
whether
the County was prejudiced
by
not being given copies
of the
Application.
(Bd.
TR. 11-6
132,
133).
The
sole question on this issue then is whether the City’s failure to
follow a provision of its own
Siting
Hearing Ordinance, without even a hint of actual prejudice, is
fundamentally unfair. The
City’s
oversight is certainly understandable given the fact that this was its first
Section
39.2 siting hearing. (Bd.
TR 11-4 312). Petitioners
will
undoubtedly rely
in
support
of
their argument on the Board’s
decision in
American Bottom
Conservancy
vs. Village of Fairmount and Waste
Management Of Illinois, Inc. (PCB
00-200,
October
19, 2000). That
decision is distinguishable from the instant facts in
that in
A,
a citizen
objector was deprived of the
Application until two weeks prior to commencement of
the public hearing.
The Board correctly found that
this
did
prejudice her as she was less able to prepare
for the siting hearing.
The issue in ABC was not directly
failure
to
give
a
copy
of
an application to another party
or an objector,
but
rather
placing
impediments on the disclosure of and the availability of the
application for copying and
public inspection. In that case, the
Applicant, Waste Management, attempted to cure
the error by giving
the objector a copy of the Application two weeks prior to the start of
the siting hearing, but by
that point
it
was too late and the damage had been
done.
There is no law stating
that a city council must follow all of the
requirements of its own
siting
ordinance in order for
the siting proceedings to be conducted in a fair
manner.
Petitioners
confuse the
requirements of Section 39.2 of the Act with the requirements
of
the local
siting
hearing ordinance. A
local siting hearing ordinance is not even required. The result might be
otherwise if a city’s
failure to
18
follow
its
own
siting
hearing
ordinance
is
evidence
of
some
systematic
attempt
to
bolster
the
applicant
or
prejudice
an
objector.
This
is
simply
not
the
case
here
as
the
testimony
of
the
City
Clerk
that
she
simply
didn’t
know
about
the
requirement
is
believable
and
unrebutted.
The
Board,
of
course,
has
the
right,
when
fundamental
fairness
requires
supplemental
proceedings
before
the
local
governing
body,
to
remand
the
cause
to
that
body
for
additional
proceedings,
Land
&
Lakes
Company
vs.
Pollution
Control
Board,
245
Ill.App.3d
631,
616
N.E.2d
349
(3k’
Dist.
1993),
but
no
legitimate
purpose
would
be
served
by
such
an
action
here
since
the
ability
of
Kankakee
County
to
prepare
for
and
participate
fully
in
the
siting
hearing
is
not
disputed.
C.
The
City
Of
Kankakee
Did
Not
Deny
Information,
Documents,
Or
the
Right
To
Participate,
To
any
Person.
The
City
Council
amended
its
Siting
Hearing
Ordinance
during
April,
2002,
while
the
Applicationfor
local
siting
approval
was
pending.
(C3179-C3
191).
The
Amended
Siting
Hearing
Ordinance
required
five-day
advance
registration
for
those
who
wanted
to
participate
in
the
local
siting
hearing.
Due
to
the
ban
on
ex
parte
communications
while
the
Applicationwas
pending,
the
Cityfailed
to
communicate
to
Town
&
Country
the
fact
of
this
Amendment.
(Bd.
Tr
11-6
319,
320)
Accordingly,
Town
&
Country
caused
to
be
published
a
Pre-Hearing
Notice
based
on
the
old
version
of
the
Ordinance
which
required
participants
in
the
siting
hearing
to
register
no
later
than
the
first
day
of
the
hearings.
(App.
Exhibit
9,
TR
9).
Petitioners
argue
that
this
discrepancy
somehow
rendered
the
proceedings
fundamentally
unfair.
However,
they
point
to
no
person
who
was
denied
full
participation
as
a
result
of
this
discrepancy.
At
the
Board
fundamental
fairness
hearing
there
was
testimony
from
citizens
such
as
Doris
O’Connor,
the
spokesperson
for
CRIME,
that
they
were
confused
by
the
conflict
between
the
published
Notice
and
the
City’s
Ordinance
(Bd.TR
11-4
348-350),
but
it
appears
that
these
people
resolved
their
confusion
and
uncertainty
by
adhering
to
the
stricter
five
day
registration
standard.
(Bd.TR
11-4
348-350)
When
the
19
issue
was
raised by motion of Kankakee
County
on
the
first night of the local siting
hearing,
the
Hearing
Officer
indicated that he would
waive the five day
registration requirement
and allow
registrations
through
the first
night of the hearing
by anyone who wished
to
participate. (TR
12). He even sent an assistant
corporation
counsel
for the City of Kankakee
into the hallway outside
the
hearing where
the unexpected
overflow
crowd
was located
to inquire
whether any of
them
wished
to
register
as
participants.
(Bd. TR 11-
6 313, 386). In fact,
an assistant
to the
individual
videotaping
the proceedings
for the
public,
who was
apparently confused
about
what was required to register
as a participant,
was allowed by
the Hearing
Officer to be included
as a full participant with
right of cross-examination
on
the third
night of the hearing
despite
the fact that her initial written
communication to
the City
had only indicated
a desire to
speak. (Bd.
TR
11-6 105, 337).
Generally,
Petitioners argue
that the proceedings were
rendered
fundamentally
unfair by reason
of
the fact that some
members of the public
got vague or confusing answers
from the
City Clerk’s Office on
questions regarding how
to
participate. Moreover,
they suggest that it
was
improper
for the City Clerk to
require
everyone
who wanted
copies
of
documents
or records to fill
out a Freedom
Of Information
Act
Request Form. Petitioners
do not allege that
anyone was prevented
from
participating,
nor do they
offer
evidence that anyone
was
denied access to
requested
records
or
information.
The
City Clerk testified at the
Board fundamental
fairness hearing
indicating it
had
always been
her
practice
to require anyone who
requested
copies
of any City records
to fill out a
Freedom
Of
Information
Act form
(Bd.
TR 11-6
226,
267). This
practice
pre-dated
Town
&
Country’s filing
and was
uniformly
applied
to
everyone,
including Town
&
Country representatives
who
sought
information.
(Bd.
TR 11-6 225,261)
Moreover, the form
required to
be filled out was a simple
form where
a
few blanks
such
as
name, date,
and information requested
had to be
filled in. (Bd. TR 11-6
267, City
Exhibit 4).
As to allegedly
confusing
information
regarding
the
rules of
participation
given
out
by the City
Clerk’s Office, it
is clear that no one was
prevented from
full
participation.
Moreover,
it is not the job of
20
the
City
Clerk to give legal advice,
to
construe
City Ordinances, or to educate people in
the
Section
39.2
hearing
process.
The
unfortunate inconsistency
between the five day registration requirement in the
Amended
City Ordinance
and the hearing registration
requirement in the Applicant’s published hearing
Notice
was fortunately resolved in
favor of greater
and fuller public participation by
the Hearing Officer
electing to apply
the more liberal requirement. It
is
more
than a little ironic
that this fundamental fairness
issue grows
directly out of the fact that the City
was not communicating with Town &
Country while
the
Application
was pending, strong circumstantial
evidence of how serious the parties were about avoiding
ex
parte contacts.
It is well established
that the local siting authority may
develop its
own siting procedures, if
those
procedures
are consistent with the Act and
supplement,
rather than supplant those requirements. (Waste
Management
of Illinois
v.
PCB, 175 Ill.App.3rd
1023, 530 N.E. 2d 682, 2’
Dist.
1988).
Therefore,
to the
extent
that
the Kankakee City Council did not
faithfully follow the Siting
Ordinance
it
had enacted,
even
though such Siting
Ordinance was not required, no fundamental fairness violation occurs in the absence
of
prejudice
or, alternatively, in the absence of proof
that the
decision-maker was systematically attempting
to
impair a party’s participation. There is no evidence
of wrongful intent on the
part
of
the City of Kankakee
in this record.
There is nothing
inherently
wrong with the City Clerk’s
procedures for access
to
records;
they
pre-dated the filing of this Application, and they were applied uniformly to
everyone.
The
City
Clerk’s failure to give copies of the Application to the County is nothing more than an
oversight.
(Bd. TR
11-6218)
D.
No Person Was Prejudiced Because Of
Limited Seating Capacity
In the
Hearing
Room On the First Night Of
the Proceedings.
It is undisputed that the City Council Chambers where the siting
hearings were held could
not
accommodate all of the
members of the public who wished to attend on the first night of the
hearing.
This
21
had
already been
the
subject
of a Motion For Summary
Judgment filed by Kankakee County and denied
by
the Board.
Extensive
evidence
on this issue was elicited
at the Board fundamental fairness
hearing.
Town & Country’s position
is
that
the City Council was faced with
a difficult
situation on the first
night of the
hearings, and that the City acted
more than reasonably
to
cure the problem and to assure that
everyone
was allowed the right to participate.
A careful review of the testimony of the witnesses at the
fundamental
fairness hearing establishes this
conclusion.
Leonard Martin,
a County Board member, did not get
in on the
first
night of the
hearings.
He
admitted that he was
oniy going as “a spectator” and did
not
wish
to
participate. It should be pointed
out
that
to the extent that Kankakee
County
had four legal representatives in the hearing room on the
first
night,
Mr. Martin’s interests were
more than
capably represented.
Darrell Bruck, Jr. testified that he arrived
at
8:05
p.m. and was
ultimately able to get into the
hearing room at approximately
10:00 p.m. (Bd.TR. 11-4 103). He also
conceded that there was no
problem
with public access to the hearings after 10:00 p.m. on the first night of the eleven day hearing.
(Bd.TR. 11-4 114). Bruck never registered as
a
participant,
but was
able
to
give
a public comment on
June
27
th
(Bd. TR
11-4
110,113). He also knew that the City made a transcript of the
first night’s
proceedings available
to everyone, but chose not to read the same. (Bd. TR 11-4 114).
Pam
Grosso also
did
not register as
a
participant.
(Bd. TR
11-4
139).
She was aware of her right
to subsequently give public comment, but
chose
not to do so,
electing instead to submit a written statement
which became
part of the
record. (Bd. TR 11-4
138).
Barbara Miller, who complained about the over-crowding did, in fact, get
in the hearing room
on
the first night. (Bd. TR 11-4 146). Similarly, Betty Elliott, an elderly lady,
also got into the hearing room
on the first night, but apparently left on her own and never got back in. (Bd. TR
11-4 154, 160, 161,
164,
165). She also made a public
comment on
June
27.
(Bd. TR
11-4
166).
Mrs. Elliott’s
testimony
illustrates part of the problem on June
17
th1,
the first night. She apparently
did not understand that the siting
22
hearing
was
in
the
nature of
a trial
where
lengthy
evidence
would
be taken,
and
the opportunity
of the
public
to
speak
or
otherwise
comment
would
be deferred
until later
in the hearings.
It is
clear
from
her
testimony
at
the
Board Hearing
that
she thought
she
would
get
a chance
to
express
her
views
on the first
night
of the
hearing,
and
was disappointed
that
this didn’t
occur.
However,
she
ultimately
did express
her
views
at the
appropriate
time.
Keith
Runyon’s
testimony
demonstrates
that
no
one
who expressed
a desire
to participate
was
excluded.
At
the
fundamental
fairness
hearing,
Mr. Runyon
complained
about
the crowding
on the
first
night
and
the
fact
that a significant
number of
people did
not
get
into the hearing
room.
Runyon was
an
officer
of a citizen’s
group,
OUTRAGE,
and
he
indicated
that
even
though
he
arrived
late,
space
was
made
for him
in the
hearing
room
once he indicated
that
he
had
registered
to
participate.
(Bd. TR 11-4
177,
180,
181).
Similarly,
Doris O’Connnor,
the spokesperson
for
another citizen’s
group,
CRIME,
also was
admitted
to
the
hearing
because
she had preregistered.
(Bd.
TR
11-4
368, 370).
She was
also aware
of the
HearingOfficer’s
decision
to
waive the pre-hearing
registration
requirement
by
allowing
anyone
who
wished
to register during
the
first
night’s
hearings
(Bd. TR. 11-4
370).
Pat
O’Dell
is
the
only
witness presented
by
the
County
at the
fundamental
fairness
hearing
who
even arguably
wanted
to
participate
on the
first
night and
was
excluded. Her
situation,
however,
was
significantly
more
equivocal
than
the County
would assert.
O’Dell
testified
that she
believed
she
had
registered,
but
her
registration
consisted
of
a letter
previously
turned
into the City
Clerk
indicating
that
she
wanted
to
“speak.”
(Bd.
TR. 11-6
80). On
June
19
th,
the
third
night
of the
hearings,
the Hearing
Officer
explained
on the record
how
he
had construed
Mrs.
O’Dell
letter
when he
stated,
“Because
there was
no
indication
of these appearances
when they
were
filed that
any of
these persons
desired
to cross-examine
or
present testimony,
I
construed these
as persons
who wanted
to make
statements.”
(TR.
357).
Moreover,
it
is not at all
clear
that Mrs. O’Dell
was actually
excluded
from the
hearings.
She had arranged
to have
the
hearings
videotaped
and brought
a friend
with her
who
was admitted
for that
purpose.
(Bd. TR 11-6
91,
23
92). Tn
connection with setting
up the
videotaping, she
was in and out
of the hearing room at
least
three
times before
the hearings started. (Bd. TR. 11-6 78, 79). While she was not in
the room after the
hearings
began, it appears that she may have excluded herself. (Bd. TR. 11-6 95,
96). Instead of
remaining
in the council chambers after the hearings commenced, she
busied herself by
circulating
petitions regarding the proposal with her signature first
on
the petition of
those opposed
even though she
did not claim
to be
an
objector. (Bd. TR. 11-6 100). Upon further
inquiry
to the
Hearing Officer on the
third night of the hearings, her status was changed to that of registered
participant, and
she thereafter fully
participated in cross-examination of
witnesses.
(Bd. TR.
11-6 105).
By having arranged for the
videotaping on the first night, Mrs. O’Dell
was in a perfect position to
catch
up on what she had missed while
she was circulating petitions, but she
indicated that she chose
never
to watch the videotape. (Bd. TR. 11-6 93). Moreover, there is a
curious conflict
between Mrs. O’Dell’s
written public comment at the siting hearing and her testimony
at the Board
fundamental fairness hearing.
Although she testified at the
fundamental fairness hearing that as many as
150
people
were excluded on
the first night of the hearings, she admitted that in her
public comment protesting
the events of the first
night she had that number as 60
people being excluded. (Bd. TR. 11-6 98).
It is clear from the
record
that
the overcrowding problem only
occurred on the
first night, and only,
according to the County’s own
witnesses,
for the first two or two and
a
half hours of
the lengthy hearing
session. The City Council
Chambers accommodated
125 people. (Pat Power
Affidavit). At
least
fifty,
and perhaps
more,
people
did
not get into the hearing
room initially. Some
citizens
complained at the
fundamental fairness hearing that
they were not given an
opportunity to stand at
the back of the
room,
but
Mayor
Green testified that
because of the extra chairs
placed into the Council
Chambers,
there was no
room
to stand in the back. (Bd.
TR. 11-6 216). Petitioners
suggest that the
City
should have foreseen
the
problem and
scheduled the hearings in a larger venue.
Both
the Hearing
Officer and
Mayor Green
testified at the fundamental fairness
hearing
that the existence of larger
venues within
the
City
was not at
24
all
clear,
and that
these
may
not
have
been
available.
(Bd.
TR.
11-6
209,
210).
Hearing
Officer
Bohien
testified
that
he
rejected
schools
and
outdoor
venues
as inappropriate
because
of
the lack
of
air-
conditioning
and the
Summer
heat.
(Ba.
TR.
11-4
334, 335).
The City
Council
Chambers
were
obviously
the
customary
venue
for
normal
City
Council
business.
Having
no alternative
venue
on June
1
7
ih,
the
City
had to
find
a way
to make
the best
out of
a bad
situation.
This was
accomplished
in two
ways.
Initially,
the
Hearing
Officer
attempted
to
distinguish
between
spectators
and
those
who
wished
to
participate.
Initially,
he
sent
a
police
officer
into
the
hall
outside
the Chambers
to
make
sure that
no
one
who
had preregistered
was unable
to
enter.
(TR.
12).
He
also
sent
an Assistant
City
Attorney,
Pat
Power,
into the
hallway
to
inquire
whether
anyone
there
wished
to
register
to
participate.
(Pat Power
Affidavit,
Bd.
TR.
11-6
313,
386).
While
it
is
not
clear
that
everyone
heard
the
City representatives
in
the hallway,
Pat O’Dell
at
least
acknowledged
that
she
did.
(Bd.
TR.
11-6
96).
Accordingly,
no
one
who
truly
wanted
to
participate
on June
17
th
was
deprived
of
that right.
In
addition,
two
nights
later,
the
City made
available
to everyone
a transcript
of the
June
17
th
proceedings,
and
the
Hearing
Officer
announced
that
fact.
(TR.
357).
Of additional
significance
is
the fact
that
the
bulk of
Professor
Shoenberger’
s
testimony
on
June
1
7
th
(he
was
the
only
witness
that
night)
consisted
of legal
analysis.
The
County
subsequently
moved
to
strike
the
testimony
and pursuant
to the
Hearing
Officer’s
ruling,
the
City
Council
did
not
consider
any
of
Professor
Shoenberger’s
legal
analysis
or conclusions.
(C3284).
With
that
ruling
precious
little
remained
of
Professor
Shoenberger’s
testimony,
and
that
portion
which
did
remain
was
duplicated
in
Devin
Moose’s
testimony
some
days
later.
At the
fundamental
fairness
hearing,
the
County
elicited
testimony
from
all of
their
witnesses
that
uniform
and
armed
police
officers
were
used
to control
the
crowd.
Presumably
this
testimony
was
elicited
to
support
the
inference
that
the
presence’
of police
officers
somehow
intimidated
the public
or
created
some
type
of chilling
effect
on the
right
of expression.
However, none
of the
County’s
witnesses
25
testified
that the police
acted
improperly
or that
they did anything
other
than perform
their duties.
The
only
Board
decision
on seating
capacity
as it relates
to fundamental
fairness
is
City
of
Columbia
v.
County of St.
Clair,
PCB 85-177,
PCB 85-220,
PCB
85-223
(April
3, 1986).
In
City
of
Columbia,
the
County was
confronted
with an
overflow crowd,
and
the
Board found
that, “The
Board
appreciates
the County’s
logistical
dilemma
in
finding
a new
room for
a
hearing when
faced
with
overflow
crowds
and does
not
find it unreasonable
that hearing
was commenced.”
(City of
Columbia Decision
at
page 14).
The
totality
of
the
record reveals
a
lengthy,
contentious
and
difficult
siting hearing.
The
Application
was opposed
not
only
by
many
members
of the public
as well
as
Kankakee
County
but also
Waste
Management
of
Illinois,
Inc.
The fact
that Town &
Country rested
on day
three,
and the remaining
eight
days
were
taken up
with cross-examination
of
Town &
Country’s witnesses
and
presentation
of the
Objectors’
cases
provides the
most compelling
evidence
that everyone
who
desired to
do so had a
full
opportunity
to participate.
In
their totality,
the proceedings
were
fundamentally
fair.
III.
THE
DECISION
OF THE
CITY
COUNCIL
WAS SUPPORTED
BY
THE
WEIGHT
OF THE
EVIDENCE.
A.
The
Proposed
Facility
Is Located,
Designed,
and Proposed
To
Be
Operated
So
As
To
Protect
the Public
Health,
Safety,
And
Welfare.
The only
argument
advanced
by
any of the
Petitioners
with
regard
to
this
Criterion
is that Town
&
Country has
failed
to
properly characterize
the
Silurain Dolomite
and,
consequently,
that
locating the
facility in close
proximity
to the Dolomite
Aquifer
is not protective
of the
public
health,
safety,
and
welfare.
This
argument displays
a
profound
misunderstanding
of the overwhelming
evidence
that
the
specific geologic
characteristics
of the
site are well
understood,
and
that the design
contains
unique
engineering
features
which
not
only account
for,
but actually
take
advantage
of the geologic
conditions.
Devin
Moose,
a professional
engineer,
testified
that he
was
the Director
of the St. Charles,
Illinois,
26
office of
Envirogen, Inc., a national
firm
which
focuses exclusively on environmental engineering, and he
has designed
or participated
in the design of approximately
thirty
landfills.
(TR
254-257).
Mr.
Moose described
the
facility as located
on
the South side
of the City
of Kankakee with a
facility
boundary
of
400
acres, a waste footprint of 236 acres, and an estimated
projected site life of thirty
years. (TR
261). He testified that he was
familiar
with all applicable State and
Federal Location
Standards,
and that the facility satisfied all of these. (TR. 263-267, Application
10075-10083).
Envirogen conducted a hydro-geologic evaluation of the site consisting of evaluation of published
literature on the regional geologic
setting,
evaluation of an initial series
of
soil borings
done
by
the
engineering
firm of Weaver, Boos and Gordon, Ltd., an additional series of
soil borings
performed
under
the direction
of Envirogen, bringing the
total borings
to
nineteen, as well as lab and
field
permeability
testing of the geologic materials encountered. (TR. 265-272). The site specific
geologic conditions
consisted of a fairly thin layer of unconsolidated materials, relatively
impermeable Yorkville Till on top of
weathered
and fractured Dolomite
which in turn is underlain
by
massive competent
Dolomite Bedrock.
(TR. 267-269). At the site, the
weathered uppermost
portion of
the Dolomite is
approximately five feet
thick
and
constitutes the Uppermost Aquifer. (TR. 268-269). Field
permeability testing at the
site
included slug tests and five Packer Tests in the
Deep
Boring which
penetrated
approximately fifty feet
of
the Dolomite Bedrock. All of the Packer Tests
had
no take
indicating a low
permeability material. (TR
272). Laboratory testing
of
a Dolomite sample confirmed
its low permeability. (TR.
272). On cross-
examination, Mr. Moose confirmed that the results of
four additional laboratory
permeability
tests
on the
Dolomite had been received since
the Application was published,
and these confirmed
very low
permeability
of the
massive Dolomite. (TR.
1002,
Applicant’s
Exhibit 21).
Mr. Moose’s summary regarding
site specific geologic conditions was,
“Well, I
thought the geology was
relatively
straight forward. It consisted of three or
four layers over Bedrock,
it was
fairly
predictable,
fairly
easy to
monitor, and it was easy to identify the
Uppermost Aquifer, the
cracked or
weathered Bedrock
27
Zone
is an
easily
monitored
unit.”
(YR.
273).
Mr.
Moose
then
described
the
design
of
the proposed
landfill.
He
proposed
to
excavate
below
all
of
the
unconsolidated
materials,
and
to
also excavate
all
of
the
weathered
Dolomite.
The landfill
liner will
actually
be built
on
approximately
four and
one-half
feet
of
structural
fill
recompacted
to
the
same
standards
as the
clay
liner.
(TR.
274-276).
Mr.
Moose
described
how
the
pizometers
in the
Uppermost
Aquifer
showed
water
levels
significantly
higher
than
the
bottom
of the
landfill
thereby
indicating
that
the
facility
would
have
an
inward
hydraulic
gradient.
(TR.
277,
278).
He
explained
how
an
inward
gradient
prevents
water
from
leaking
out
of
a landfill,
noting
that in
the event
of
liner
failure,
ground
water
would
leak
into
the
landfill.
(TR.
278).
Mr.
Moose
then
described
the
composite
liner
system
proposed
for the
landfill
consisting
of
three
feet
of recompacted
clay
on top
of
the
engineered
structural
fill,
a
high-density polyethylene
liner,
and
a
leachate
collection
system.
(TR.
280).
On
the
side
of
the
landfill,
the
recompacted
clay
will
be
twelve
feet
thick
rather
than
the
State
minimum
requirement
of three
feet. (YR.
282).
Mr.
Moose
also
explained
the results
of
the groundwater
impact
evaluation
using
the
Model
Pollute,
which
is
readily
accepted
and widely
used
by
the
LEPA.
The
Model
showed
no
measurable
impact
on
the groundwater
for
the
life of
the facility
(30 years)
plus
an
additional
100
years.
(TR.
293).
On
later
examination
by City
Council
members,
Mr.
Moose
pointed
out
that
the
groundwater
impact
model
continued
to show
no measurable
impact
on
groundwater
even
after
1,700
years.
(YR.
1194).
The Siting
Application
describes,
and
Mr.
Moose
testified
about,
numerous other
aspects
of
the
proposed
landfill
design
including
gas
management,
construction
sequencing,
daily
and
intermediate
cover,
groundwater
monitoring,
leachate
management,
storm
water
management,
final
cover,
and
post-closure
care.
To
the
extent
that
these
design
features
and
operational components
are typical
of
a modem
Subtitle
D
Landfill,
and
because
they
are
not
directly
relevant
to
the
issues
raised
by
Petitioners
herein,
they
will
not be
further
elaborated.
28
Petitioners
responded
with
indignant
cross-examination
of
Mr.
Moose’s
conclusions
regarding
the
Uppermost
Aquifer
based
upon
their
belief
that
the
Dolomite
represented
a
major
Regional
Bedrock
Aquifer
System.
Moose
never
took
issue
with
the
regional
characterization
by
the
Objectors
pointing
out
only
that
his
site
specific
characterization
for
the
specific
location
where
the
facility
is
proposed
to
be
located
is
more
accurate.
Even
Stuart
Cravens,
the
opposition
witness
whose
views
were
most
diametrically
opposed
to
those
of
Mr.
Moose,
admitted
that
the
productivity
of
the
Shallow
Dolomite
Aquifer
is
very
inconsistent
and
impossible
to
predict.
(TR.
1718).
None
of
the
Objectors’
witnesses
challenged
the
validity
of
the
Packer
Tests
verifying
the
integrity
of
the
Massive
Dolomite.
Cravens
could
not
question
these
results,
nor
did
Sandra
Sixberry,
a
college
geology
professor,
whose
testimony
was
not
qualified
as
expert
testimony
because
she
lacked
a
professional
geology
license.
(TR
1282,
1298).
Devin
Moose
was
extensively
cross-examined
about
what
other
studies
corroborated
his
conclusion
that
only
the
weathered
uppermost
portion
of
the
Dolomite
constituted
an
aquifer,
and
that
the
lower
Dolomite
was
massive
and
acted
as
an
aquitard.
In
response
to
questioning
by
counsel
for
Waste
Management,
Moose
referred
specifically
to
a
study
performed
by
Waste
Management
in
connection
with
a
permit
application
at
their
nearby
landfill,
where
the
Uppermost
Aquifer
was
described
as
being
approximately
ten
feet
in
thickness,
and
the
lower
Dolomite
was
described
as
massive.
(TR.
1004,
1005).
Moose
actually
produced
portions
of
Waste
Management’s
old
permit
application
verifying
their
concurrence
with
his
conclusions.
(Applicant
Exhibit
21).
Moose
quoted
from
a
portion
of
Waste
Management’s
report:
“Based
on
hydraulic
conductivity
measurements
of
the
weathered
Bedrock,
RQD
values
from
borings
into
the
weathered
Bedrock,
visual
observation
of
Bedrock
core
samples,
permeability
was
found
to
decrease
with
depth.
For
modeling,
the
maximum
depth
of
significant
Bedrock
weathering
was
no
more
than
ten
feet.
At
this
depth,
the
Dolomite
becomes
increasingly
competent
and
acts
as
a
confming
layer
to
vertical
groundwater
flow.”
(TR.
1004,
1005).
Various
Objectors
called
witnesses
in
an
attempt
to
rebut
the
conclusions
of
Devin
Moose.
29
Kankakee
County
called
their consultant,
Steven
VanHook, a geologist with Patrick Engineering, the
engineering firm
at which Moose was previously employed,
which firm sued Mr.
Moose when
he left to
join Envirogen.
(TR. 1234).
VanHook
admitted that
he was hired by the County to
critique Town
&
Country’s
Application, and that he did not agree with Envirogen’s description of the
Dolomite.
(TR.
1211,
1212). He opined
that because of the
proposed
landfill’s proximity to the
Uppermost Aquifer, “There
definitely are some
concerns with
suitability”,
but that, “Envirogen did a good job of
engineering around
some
of
these deficiencies.”
(TR.
1212). He felt
that the design would have to be
very carefully followed,
and that
there was little margin for error,
and although
he admitted he was
not an
engineer qualified
to
comment
on design features he could “see
the liner
system is
significantly beyond the
minimum required
for the
EPA.” (TR. 1214-1216). He
acknowledge that if the site were properly
constructed and the gas
system operates properly, the designed liner would be sufficient to
protect the sand in the
Henry
Formation.
(TR.
1229).
He did,
however, not review the Construction Quality
Assurance Plan in Town &
Country’s Application. (TR.
1226).
VanHook based his conclusion
that Moose had mis-characterized the
thickness of the
Aquifer
on
the fact that many of the reported drinking
water wells in the vicinity of the
site drew their
water from
deep
in the Dolomite. These wells were actually
reported in Town & Country’s
Siting Application, and Mr.
Moose had explained in
detail during his cross-examination why
it
was
difficult to draw
scientific
conclusions from
wells whose
construction details had not been
scientifically recorded.
Moose had
pointed out that
water
in a
well can be drawn from any
area below the seal and
absent reported
information
on where the well is sealed, it can
be drawing water from
anywhere in its entire depth.
(TR. 1078-1024).
VanHook acknowledged that commercial
well-drillers were not geologists,
that they
often mistook
geologic classifications,
and that water well
drillers’
logs
were inherently
unreliable if they
contained
contradictory
or incomplete information. (TR. 1239,
1240).
He ultimately
admitted
that
without knowing
where wells are sealed, saying
what formation the water comes
from is speculation.
(TR. 1142).
30
VanHook acknowledged
that the best way
to learn
the
true
nature
of the
Dolomite in the
area of
the site is
through
visual inspection. (TR.
1243). This is consistent
with Moose’s testimony
that after
excavation
of
the weathered Dolomite
and before placement of
the structural
fill, the engineers would
inspect the
surface
of the competent
Dolomite
and grout
any visible
fractures
as needed. (TR.
1102,
1103).
Moose
had
indicated to the City
Council that because
there was not much
clay underneath the
site,
he
intended to take
it all out and construct
a highly
engineered
landfill
that relied
on an
inward
gradient
to
protect
the environment.
(TR.
1156,
1157). VanHook acknowledged
that
the
hydro-geologic
characteristics
of the site created
an inward gradient. (TR.
1237).
He
agreed that
the
inward gradient
would
protect the
environment
from
leachate
releases. (TR. 1138).
In
summary,
VanHook,
who
started
out as
a
critic,
appreciated the additional
engineering
at the site, and
acknowledged the
environmental
protection
afforded
by
the inward
gradient,
the
key
feature of the site.
His only
difference with the
opinions offered
by
Mr.
Moose
relates to the thickness
of the Uppermost
Aquifer,
and
that difference
results
from
flawed
conclusions
developed
by
his
reliance
upon
the
inherently
flawed
water
well drillers’
logs,
which did not contain
the essential seal
information.
Likewise,
Sandra Sixberry, who
also
expressed
concern about
the
site’s
proximity
to the Aquifer,
was
fourth
in cross-examination
to acknowledge the
inward gradient as
an effective
barrier
to advective
flow.
(TR. 1294).
She
acknowledged
the
value of modeling,
but admitted that
she
had not
reviewed
the
Applicant’s
model inputs
although she
acknowledged
that she had been
privately
provided
with
the
diffusion coefficient
information
used in the model
by
one of
Mr. Moose’s
assistants.
(TR.
1293).
The last
and
most interesting
of
the
opposition
witnesses
to testify
about
hydro-geo
logy was Stuart
Cravens,
a former
employee
of the
Illinois State
Water
Survey.
He initially
testified
that
he
had been a
“senior hydro-geologist”
at
the Illinois State
Water Survey who
carried the title
of “Senior
Professional
Scientist.”
(TR.
1311).
During his
time
at the Water Survey,
he
had
coauthored a study
entitled Regional
31
Assessment
of the
Groundwater Resources
of Eastern
Kankakee
and
Northern
Iroquois
Counties
(Benoit
Exhibit
29,
TR.
13 19-1321).
On
cross-examination,
Cravens
admitted
that
he
had not
been
a senior
hydro
geologist
at
the
Water
Survey,
but had
actually
been
a
“Professional
Scientist.”
(TR.
1615, 1616).
A
short
biolography
of
Cravens
in
one
of his other
publications
revealed,
however,
that
his
title
at the
Water
Survey
was “Assistant
Hydrologist.”
(Applicant’s
Exhibit
23).
Cravens
readily
admitted
that
he was
not an engineer
and not
qualified
to design
landfill
liners,
and
that
he could
not
speak
as to
whether
the
Applicant’s
liner
was
a barrier
to
the
environment.
(TR.
1641,
1643).
He had
never
developed
a
groundwater
monitoring
program.
This
was
his
first experience
with
a
Subtitle
D
Landfill.
He
had
never
done a
Section
39.2
Hearing
Review,
he had
never
done a
permit
review
for
a
municipal
solid
waste landfill,
and he
had
never
drafted
any part
of a
siting
application.
(TR.
1624,
1661,
1674).
Cravens
felt
that
based
upon
its
proximity
to
the
Dolomite
Aquifer
as verified
by
regional
studies,
no
site
specific
investigation
should
ever have
been
done
at
the site.
(TR.
1648).
He acknowledged
the
statement
in his
Executive
Summary
that
no design
can
adequately
protect
the
public
health,
safety, and
welfare
at the
Applicant’s
site,
but
stated
that
this was
not
correct.
(TR. 1647).
He subsequently
changed
his
mind
and
stated
that,
in fact,
no
design
at this
site could
protect
the
public
health,
safety
and welfare,
but
then
again
changed
his mind
stating
that
some designs
might
work.
(TR.
1653,
1654).
Cravens
corroborated Moose’s
conclusion
that
intact
primary
Dolomite
has
very
low
permeability
(TR.
1725).
He
also
acknowledged that the
Applicant’s
data
showed
an
inward
gradient
at the
site. (TR.
1827).
However,
he
disagreed
with
the
assumptions
in the
groundwater
impact
modeling
even
though
lie
could
not
name
the
model
used,
or identify
the
parameters
that
he would
change,
ultimately
admitting
that
he
was
not
a modeler.
(TR.
1831-1835).
Cravens
could
not
take issue
with
the Applicant’s
conclusion
that the
Model
would have
passed
IEPA
Standards
with
a
three
foot
clay
side-liner
rather
than the
twelve
foot
side-liner
which
was
actually
proposed.
(TR.
1831-1835).
32
Like VanHook, Cravens based his disagreement with
Moose on the depth of water
wells in the
area.
He
too,
admitted that
absent a well
being sealed, water can come from any area of
the length
of
the
well. (TR. 1698). In his own regional study,
however, he
did
not look at or utilize seal
information.
(TR.
1698). Cravens had reviewed
data
from the 307 local water wells in
the vicinity of the
site to support his
conclusion that the Dolomite is a thick regional aquifer in the area of the site.
However, different portions
of his
conclusions use different subsets of data specifically
selected
by
him,
and
ultimately he admitted that
none of these over
300
wells had published seal information. (TR. 1761,
1762).
Cravens’ own regional
study, which did
not
directly include the subject
site, seem to indicate that
as one approached this site from the East, the Dolomite became
increasingly less permeable. In the
observation well
in Cravens’
study closest
to
the Applicant’s site, there was no
response whatsoever to the
aquifer drawdown test. (TR. 1819). This suggested in the area of the
site the thick, lower, competent
Dolomite, indeed, was not functioning as an aquifer, but rather as an
aquitard. Moreover, of
the sixteen
observation wells in Cravens’ 400 square
mile
study
area,
the
two
wells closest to
the Applicant’s site were
finished at depths in excess of 600
feet, indicating that they may not even have
been Dolomite wells. (TR.
1789,
1790). Another of Cravens’ “Dolomite” observation wells
had no recorded depth
information at all.
(TR. 1796).
The
Objectors at the siting hearing and the Petitioners
here misconstrue both
the nature and the
amount of proof
required to establish that a
site is
so located
and
designed as to
protect the
public
health,
safety,
and welfare. Town & Country’s
representatives readily admitted that
not enough
site investigation
was done to satisfy permitting
requirements,
but this is not a
permitting proceeding.
If the standard were
the same as
in permitting, there
would
be no
reason for the local
decision-maker to
even rule on
the issue.
Objectors say that not enough
deep soil borings were done.
This, too, misses
the point as
there is no
minimum or
magic number of borings.
Devin Moose testified that the
borings
were sufficient for him to
understand the site and to develop
a design which took into
account the unique
characteristics of the site.
33
The
design
far
exceeds
minimum
JEPA
specifications.
The fact
that
the Objectors
don’t want
to believe
Mr.
Moose
is
of
no consequence
since
they
are
not
the decision-makers.
They
also
are not in
a position
to
impose
their standard
of what
constitutes
sufficient
proof on
the decision-makers.
All
three Objectors’
witnesses
on
this issue
ended
up
admitting
that
the
depth
of
surrounding
water
wells
is,
absent
seal
information,
not
a reliable
indicator
of the depth
of the Uppermost
Aquifer.
Other
than
that,
VanHook
admitted
the design
would
work,
Sixberry
acknowledged
the
effectiveness
of
an
inward
gradient,
and Cravens
repeatedly
changed
his
mind
and his
testimony
on everything
from his
past
job title
to
whether
any design
could
protect
the
public
health, safety,
and
welfare.
The
testimony
of Stuart
Cravens
emphasizes
an
important
point,
namely,
that it is
the exclusive
province
of the
trial of
fact
to
determine
what
weight
is
to
be given
to
conflicting
testimony.
A
review
of
the
City
Council’s
Findings
of Fact
indicates
not only
that they
considered
all
of the
evidence,
but
also
that
they
properly
weighed
the
evidence
and
arrived
at the
correct
decision.
Those
findings,
in fact,
contain
thirty-one
specific
paragraphs
of
findings
wherein
the conflicting
evidence
relating
to the
thickness
of the
Aquifer
was
acknowledged
and given
its
proper
weight.
(C3267-3271).
The
City
Council’s
finding
was
not against
the
manifest
weight
of
the
evidence.
B.
The Plan
Of Operations
For
the Facility
Is
Designed
To
Minimize
the
Danger
To
the
Surrounding
Area
From
Fire,
Spills
Or
Other
Operational
Accidents.
Devin
Moose,
the Applicant’s
Chief
Engineer
testified
on
this
Criterion.
(TR.
254-257).
He
indicated
that
Envirogen,
under
his
direction,
prepared
an
operational
plan
for the
proposed
facility
which
is set
forth in
detail
in the Application.
(TR.
301).
He
also
indicated
that
the
Application
contains
plans
with
regard
to spill
prevention,
accident
response,
fire response,
and
the like,
and that
the details
of those
plans
are set
forth fully
in the
Appendices
to
the Application.
He opined
that
the
facility
is
designed
so as
to minimize
the
impact
of
fires
as
well
as other
accidents.
(TR. 306).
The
summary
of the
Health
And
Safety
Plan
is found
in
Volume
I
of the
Application,
which
34
summary
sets
forth
the
major
feature
of
that
Plan
including
but
not
limited
to
safety
training
and
emergency
response
procedures.
(10397-10406).
The
detailed
Plan
is
set
forth
in
Appendix
S
of
the
Siting
Application.
Mr.
Moose
was
only
asked
one
question
on
cross-examination
regarding
this
Criterion,
namely
whether
he
had
ever
contacted
the
Fire
Department
in
Kankakee
to
verify
their
ability
to
provide
emergency
assistance
as
described
in
the
Plan.
Mooseconceded
that
he
had
not
contacted
them.
(TR.
516).
No
evidence
was
introduced
indicating
that
any
responding
agency
was
incapable
to
respond
to
any
accident
that
might
occur.
In
its
unanimous
approval
of
the
siting
Application,
the
City
Council
imposed
the
additional
condition,
“That
the
Applicant
prior
to
commencing
of
operations,
shall
work
with
the
City
of
Kankakee
Fire
Department
to
insure
that
the
Operational
Plan
is
consistent
with
the
emergency
response
of
the
City
of
Kankakee
Fire
Department
and
to
insure
that
the
City
of
Kankakee
Fire
Department
shall
be
informed
at
all
times
regarding
any
potential
hazardous
conditions
which
may
exist
and
which
would
increase
the
likely
of
any
accidental
fire,
spill,
or
other
operational
accident.”
(C3279).
Based
on
the
foregoing,
Petitioners
have
argued
that
the
City
Council
decision
with
respect
to
Criterion
v
is
against
the
manifest
weight
of
the
evidence.
This
argument
is
specious.
First
of
all,
Devin
Moose’s
failure
to
confirm
the
Kankakee
City
Fire
Department’s
availability
goes
to
the
weight
to
be
given
to
his
testimony,
a
decision
that
must
be
made
by
the
City
Council.
Moreover,
to
the
extent
that
no
contrary
evidence
was
introduced,
the
City
Council
is
clearly
entitled
to
accept
his
qualified
and
expert
opinion.
Lastly,
the
fact
that
the
City
Council
imposed
a
special
condition
of
approval
specifically
responsive
to
the
issue
indicates
that
the
decision
maker
has
addressed
the
matter
in
a
manner
consistent
with
the
evidence.
C.
The
Applicant’s
Proposal
Is
Consistent
With
the
County
Solid
Waste
Management
Plan.
Allen
Shoenberger,
a
law
professor
at
Loyola
University
of
Chicago
(TR.
48),
offered
Town
&
35
Country’s
initial
testimony
on
Siting
Criterion
viii,
whether
the facility
is
consistent
with
Kankakee
County’s
Solid
Waste
Management
Plan.
Professor
Shoenberger
recounted
his extensive
appellate
experience,
the
fact
that
he
had
been
Hearing
Officer
for
the
Pollution
Control
Board,
has
presided
over
Section
392
local
siting
hearings,
and
in those
capacities
made
proposed
findings
of fact
and
law
to
various
tribunals
regarding
the Section
39.2
Siting
Criteria
(TR.
51).
The
Kankakee
County
Solid
Waste
Plan
was originally
adopted
in
1993,
readopted
in 1995,
and
updated
in
the year
2000
(TR.
52).
At
that
time,
the
Plan
precluded
waste
from
outside
of Kankakee
County
being
disposed
of in
the
existing
facility
within
the
County
(TR
53).
On
October
9, 2001,
the
County’s
Plan was
amended
to remove
the preclusion
on
receiving
out-
of-county
waste
in the
County
Landfill.
That Amendment
also
contained
the
following
language
with
regard
to the
existing
waste
management landfill:
“An expansion
of
the landfill,
if
approved,
will
satisfy
the
County’s
waste
disposal
needs
for an
additional
20 years.
No
new
disposal
facilities
will be
necessary,
or
desired,
in
Kankakee
County
for
purposes
of
implementing the
Plan.
Kankakee
County
will
not
support
and
will contest
the
development
of
any
other
landfill
in
the
County,
unless
the
expansion
of
the existing
landfill
is
not approved.”
(Siting
Hearing,
Kankakee
County
Exhibit
2).
This
is the
version
of
the
County’s
Plan
addressed
in
the
Siting
Application.
The Siting
Application
points
out that
the
proposal
is
consistent
with
the
County
Solid
Waste
Management
Plan
in
that
it represents
a
privately
owned
landfill,
the
preferred
alternative
in the
County
Plan,
and
in that
as of
the date
of
the Town
&
Country
Application,
the
Waste
Management
Landfill
expansion
“is
not
approved.”
(Application
10462-10464).
On March
12, 2002,
the
day
before
Town
& Country’s
Application
was
filed,
Kankakee
County
amended
its Solid
Waste
Management
Plan
once again
(TR.
62).
This
Amendment
slightly
changed
some
of
the
previous
language
regarding
the
contemplated
expansion
of
the
existing
Waste
Management
Landfill
and
also
added
three
new
requirements,
namely
that any
proposal
contain
an Environmental
Contingency
Escrow
Fund,
a
Domestic
Well
Water
Protection
Program,
and
a Real
Property
Protection
36
Plan.
(TR.
63, 64). Specifically, the
Amendment
of March
12, 2002
required that:
“An expansion of the existing
landfill,
if approved,
would
then
satisfy the County’s
waste disposal
needs
for at
least an
additional 20 years,
and in accord
with
the
Kankakee
County
Solid Waste
Management
Plan
(as amended),
as well as
relevant
portions
of
the Local Solid
Waste Disposal Act and
the
Solid Waste
Planning
And
Recycling Act,
no new facilities
would
be
necessary.”
(Siting
Hearing, Kankakee
County
Exhibit
2).
Dr. Shoenberger
opined
that since the Waste Management
expansion
“is not approved”
and since
the Town
&
Country
Application
would
satisfy the County’s
waste
disposal
needs for 20 years and
since
the
Town
& Country
Application
contained
an
Environmental
Contingency
Escrow Fund,
a
Domestic
Well Water Protection
Program, and
a
Real
Property
Protection
Plan,
the proposal
was consistent
with
Kankakee County’s Solid
Waste Management
Plan
(TR. 65,
69).
On cross-examination
by the County’s attorney,
Devin Moose of Envirogen,
Inc.,
a
professional
engineer and the
chief author of the Town
&
Country
siting
Application,
testified
over
objection
by Town
& Country’s
attorney that he had
assisted in the development
of dozens
and dozens of County
Solid
Waste
Management
Plans, and that he considered
himself and his
firm to
be experts
in the area of County
Solid
Waste
Management Plans
(TR 519, 520).
On subsequent questioning
by one of the
City
Council
members,
Mr. Moose, without
objection from any of the
participants,
gave a detailed description
of why
he
concluded that
the Town & Country
Application was consistent
with the Kankakee
County Solid
Waste
Management
Plan. (TR.
1202-1207).
He explained
that even though
the County Solid
Waste Plan,
as
amended, clearly
contemplated Waste Management
filing
an application for expansion
of
their existing
facility, the plain meaning
of the words in that
Amended Plan,
because
Waste
Management’s
expansion
was
“not approved,”
allowed the
Town
& Country
Application
to be consistent.
He
also pointed
out that
the Town & Country
Application met or
exceeded all of
the technical requirements
in
the
County’s
March
12, 2002 Amendment,
which
he detailed in his
testimony.
(Id.).
Kankakee
County
now
argues
that the City’s unanimous
fmding that
the Town & Country
37
Application
is
consistent
with
the
County’s
Solid
Waste
Management
Plan
is against
the manifest
weight
of the evidence.
This
argument
presupposes
that
the Kankakee
City Council
had
to honor
the presumed
intent
ofthe
County’s
Plan
rather
than
give
effect to
the
plain
meaning
of
the
words
therein.
There
is
no
question
in this
record
that
the
County
wanted
an
expansion
of
the Waste
Management
facility
and that
their
Plan Amendments, including
a
second
one
the
very day
prior
to
the
Town
&
Country
filing, were
intended
to
preclude
the City
from
successfully
exercising
its
siting
jurisdiction.
However,
the wording
of
the
Amendments left room
for the
City to
make a
fmding
of Plan
consistency
so long
as a
Waste
Management application
for its
landfill
expansion
was “not
approved.”
The Findings
of Fact
adopted
by
the City
Council
contain
an extensive
discussion
of
this
issue,
proving
conclusively
that the
City Council
did
consider
all
of
the evidence.
The
Council
considered
in detail
all of
the requirements
of the
County’s
Plan and
unanimously
found
that
Town
& Country’s
Application
was
consistent.
(C3283-3286).
Regardless
of
whether
the
Board
may
or may
not have
a different
interpretation
or give
a
different
meaning
to the
words
in
the County’s
Solid
Waste
Plan,
there
is substantial
evidence
to support
the City
Council’s
finding,
and
therefore
that
finding
is not
against
the
manifest
weight of
the evidence.
lv.
THE
COUNTY
DOES
NOT
HAVE
THE
RIGHT
TO
PRECLUDE
THE
CITY
FROM
EXERCISING
ITS
PROPER
PLANNING
AND
SITING
JURISDICTION.
The
Petitioners’
arguments
regarding
Criterion
viii
reveal
the
classic
example
of one
unit
of
local
government
improperly
attempting
to
foreclose
the
efforts
of
another
in the lawful
exercise
of
its power.
Here,
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
(415
ILCS
5/39.2(a)),
and to
prevent
it from
exercising
its
constitutional
powers
within
it
s
corporate
boundaries.
None
of
the
Objectors
presented
any
evidence
that Town
&
Country’s
Application
wa
not
38
consistent
with
the
County
Solid
Waste
Management
Plan,
save
for
the
Board
Chairman’s
affidavit
describing
the
Plan’s
provisions.
None
of
them
offered
any
alternative
interpretation
to
sworn
testimony
of
the
plain
language
of
the
Amended
Plan.
Although
the
County
moved
to
strike
Devin
Moose’s
testimony
that
the
proposal
was
consistent
with
the
Plan,
it
was
the
County’s
attorney,
in
cross-examination,
who
qualified
Moose
as
an
expert
on
the
subject,
and
the
County
failed
to
object
when
Moose
offered
his
conclusions.
The
Petitioners’
argument
that
the
proposed
facility
fails
to
satisfy
Criterion
viii
(415
ILCS
5/39.2(a)(viii),
is
based
upon
the
premise
that
the
facility
is
inconsistent
with
the
amendments
to
the
Kankakee
County
Solid
Waste
Plan
(“KCSWP”)
adopted
on
October
9,
2001
and
March
12,
2002,
which
amendments
were
specifically
intended
to
deny
the
City
of
Kankakee
the
right
to
site
any
facility
within
its
corporate
limits
unless
the
Waste
Management
landfill
was
not
expanded
by
County
Board
action.
Before
the
1970
Illinois
Constitution,
municipalities
and
counties
only
had
that
authority
to
act
expressly
given
them
by
the
General
Assembly.
Without
an
express
statutory
power
to
act,
a
unit
of
local
government
could
not
act.
If
the
statutes
were
silent
on
a
topic
that
was
the
subject
of
a
possible
municipal
or
county
ordinance,
that
topic
was
generally
foreclosed.
This
theory
of
almost
total
state
legislative
control
of
local
government
is
commonly
known
as
“Dillon’s
Rule.”
See
City
of
Clinton
v.
Cedar
Rapids
and
Missouri
River
Railroad,
24
Iowa
455
(1868).
Under
Dillon’s
Rule,
which
still
applies
to
non-home
rule
units,
governmental
powers
will
be
narrowly
construed
by
the
Courts.
See
Ives
v.
City
of
Chicago,
30
IIl.2d
582,
198
N.E.2d
518
(1964).
As
a
home
rule
unit,
the
City
of
Kankakee
has
substantial
constitutional
authority
to
enact
ordinances
and
take
other
actions
which
pertain
to
its
government
and
affairs
such
as
solid
waste
planning
and
siting.
The
Illinois
Supreme
Court
explained
the
dramatic
constitutional
authority
of
the
home
rule
unit,
as
follows:
The
concept
of
home
rule
adopted
under
the
provisions
of
the
1970
Constitution
was
designed
to
drastically
alter
the
relationship
39
which
previously
existed
between
local
and
State
government.
Formerly,
the
actions
of
local
governmental
units
were
limited
to
those
powers
which
were
expressly
authorized,
implied
or
essential
in
carrying
out
the
legislature’s
grant
of
authority.
Under
the
home
rule
provisions
of
the
1970
Constitution,
however,
the
power
of
the
General
Assembly
to
limit
the
actions
of
home
rule
units
was
circumscribed
and
home
rule
units
have
been
constitutionally
delegated
greater
autonomy
in
the
determination
of
their
government
and
affairs.
To
accomplish
this
independence,
the
Constitution
conferred
substantial
powers
upon
home-rule
units
subject
only
to
those
restrictions
imposed
or
authorized
therein.
Kanellos
vs.
Cook
County,
53
Ill.2d
161,
290
N.E.2d,
240,
243
(1972)
(emphasis
added).
A.
Any
Action
By
Kankakee
County
To
Limit
the
Powers
of
The
City
Of
Kankakee
Within
Its
Corporate
Boundaries
Is
Unconstitutional.
415
ILCS
5/39.2(a)
grants
to
the
City
of
Kankakee
the
sole
responsibility
to
approve
or
deny a
request
for
siting
approval
of
a
pollution
control
facility
located
within
its
corporate
boundaries.
As
a
home
rule
unit,
the
City
of
Kankakee
“...
may
exercise
any
power
and
perform
any
function
pertaining
to
its
government
and
affairs...”
(ILL.
CONST.
Art.
VII,
Section
6(a)),
and
may
also
“...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
specifically
declare
the
State’s
exercise
to
be
exclusive.
(ILL.
CONST.
Art.
VII,
Section
6(i)).
Clearly,
pursuant
to
both
the
Illinois
Constitution
and
the
delegation
by
the
General
Assembly
of
the
responsibility
for
siting
approval,
the
City
of
Kankakee
may
not
be
prevented,
or
in
any
way
obstructed,
in
the
exercise
of
this
power
within
its
corporate
boundaries,
by
Kankakee
County.
An
attempt
by
Kankakee
County,
through
the
guise
of
amendments
to
its
Solid
Waste
Management
Plan,
to
prohibit
the
City
of
Kankakee
from
approving
the
siting
of
a
pollution
control
facility
within
its
corporate
boundaries
is
directly
contrary
to
the
Illinois
Constitution
and
the
authority
of
415
ILCS
5/39.2(a).
S
A
solid
waste
management
plan
may
not
limit
the
powers
of
a
unit
of
local
government
conferred
by
the
Illinois
Constitution
or
delegated
by
the
General
Assembly.
To
the
extent
that
it
attempts
to
do
so,
40
the
plan
is
ineffective.
Simply
put,
the
SWPRA
cannot
be
used
by
a
county
to
reserve
to
itself
the
sole
power
to
site
a
pollution
control
facility
based
on
whether
the
county,
on
some
future
date,
might
itself
accept
the
expansion
of
another
site.
To
the
extent
that
Criterion
viii
could
be
construed
to
allow
Kankakee
County
to
limit
the
City
of
Kankakee
of
exercising
its
delegated
or
constitutional
powers,
415
ILCS
5/39.2(a)
(viii)
is
unconstitutional.
B.
The
Solid
Waste
Planning
And
Recycling
Act
(“SWPRA”)
Expressly
Preserves
Siting
Authority
To
Units
Of
Local
Government.
In
recognition
of
the
independence
of
one
unit
of
local
government
from
interference
in
the
exercise
of
its
powers
by
another
unit
of
local
government,
the
SWPRA,
itself,
expressly
preserves
the
siting
authority
of4l
5
ILCS
5/39.2(a)
for
pollution
control
facilities
to
the
governing
body
of
the
municipality
where
the
proposed
facility
is
located:
This
amendatory
Act
of
1992
shall
not
be
construed
to
impact
the
authority
of
units
of
local
government
in
the
siting
of
solid
waste
disposal
facilities.
415
ILCS
1
5/2(a)(5).
Accordingly,
any
county
solid
waste
plan
that
purports
to
in
any
way
limit the
powers
of
the
governing
body
of
a
municipality
to
approve
or
deny
a
siting
request
for
a
proposed
facility
located
within
the
municipality’s
boundaries
is
not
consistent
with
the
planning
requirements
of
the
SWPRA,
as
required
by
415
ILCS
5139.2(a)(viii).
Consequently,
such
a
solid
waste
plan
does
not
trigger
the
requirement
that
an
applicant
satis1’
Criterion
viii,
because
the
County
plan
itself
fails
to
satisfy
the
requirement
to
be
“consistent
with
the
planning
requirements
of
the
Local
Solid
Waste
Disposal
Act
or
the
Solid
Waste
Planning
and
Recycling
Act.
(Id.).
To
the
contrary,
the
County
would,
for
purposes
of
a
siting
hearing,
be
considered
not
to
have
a
solid
waste
plan
because
of
this
conflict
with
the
planning
statutes
on
which
all
such
county
plans
must
be
based
to
be
competent
under
415
ILCS
5/39.2(a)(viii).
In
this case,
the
Kankakee
County
Plan
relied
upon
by
the
Objectors
does
attempt
to
limit
the
powers
of
the
City
of
Kankakee
and
violates
both
415
ILCS
10
and
415
ILCS
15.
Because
of
the
failure
41
of
the
planto
comply
with
the
SWPRA,
Kankakee
County
has
no
solid
waste
plan
consistent
with
the
planning
requirements
of
the
SWPRA,
making
Criterion
viii
inapplicable.
C.
The
City
Of
Kankakee’s
Solid
Waste
Plan
Prevails
Over
the
County
Plan.
The
amendments
to
the
Kankakee
Solid
Waste
Plan
also
directly
conflict
with
the
provisions
of
415
ILCS
10.
Section
1.1
of
the
Local
Solid
Waste
Disposal
Act,
(415
ILCS
10/1.1)
recognizes
a
municipality’s
authority
to
site
a
pollution
control
facility:
It
is
the
purpose
of
this
Act
and
the
policy
of
this
State
to
protect
the
public
health
and
welfare
and
the
quality
of
the
enviromnent
by
providing
local
governments
with
the
ability
to
properly
dispose
of
solid
waste
within
their
jurisdictions
by
preparing
and
implementing,
either
individually
or
jointly,
solid
waste
management
plans
for
the
disposal
of
solid
waste
and,
to
the
extent
technically
and
economically
feasible,
to
efficiently
use
products
or
byproducts
generated
during
the
disposal
process.
(emphasis
added).
Section
2(2)
of
the
Local
Solid
Waste
Disposal
Act
defmes
a
“unit
of
local
government”
to
specifically
include
a
municipality,
and
section
2(4)
specifically
defines
“jurisdiction”
in
the
case
of
a
municipality
to
be
“the
territory
within
the
corporate
limits
of
the
municipality.”
(415
ILCS
10/2(2)
and
10/2(4)).
The
Local
Solid
Waste
Disposal
Act
defines
the
jurisdiction
of
a
county
to
exclude
“the
corporate
limits
of
any
municipality
which
has
adopted
or
is
implementing
a
plan
under
this
Act...”
415
ILCS
10/2.
Accordingly,
Kankakee
County’s
planning
jurisdiction
could
not
reach
within
the
boundaries
of
the
City
of
Kankakee
after
the
City
adopted
its
own
solid
waste
plan.
This
would
be
the
case
under
415
ILCS
10
even
if
the
City
of
Kankakee
was
not
a
home
rule
unit.
When,
however,
the
City
of
Kankakee
adopted
its
Solid
Waste
Management
Plan
pursuant
to
the
Local
Solid
Waste
Disposal
Act,
any
provision
of
the
County’sPlan
in
conflict
with
the
City’s
Plan
became
invalid
with
respect
to
the
City,
based
on
both
the
provisions
of
the
Local
Solid
Waste
Disposal
Act
and
the
Illinois
Constitution.
ILL.
CONST.
Art.
VII,
Section
6(c).
42
D.
The
Amendments
To
the
Kankakee
County
Solid
Waste
Management
Plan
Relied
Upon
By
the
Objectors
Were
Not
Adopted
Pursuant
To
the
Requirements
ofthe
SWPRA.
415
ILCS
15/5
clearly
sets
forth
the
procedural
steps
necessary
to
adopting
a
solid
waste
management
plan
and
for
subsequently
updating
and
amending
that
plan.
Here,
Kankakee
County
first
adopted
its
Solid
Waste
Management
Plan
on
October
12,
1993,
which
Plan
was
readopted
on
August
18,
1995.
As
required
by
415
JLCS
15/5(e),
the
County
adopted
its
first
five-year
update
on
July
31,
2000.
Then,
spurred
on
by
the
actions
of
the
City
of
Kankakee
to
address
the
solid
waste
needs
of
its
own
citizens,
Kankakee
County
on
October
9,
2001,
and
again
on
March
12,
2002,
purported
to
amend
its
Plan.
The
sole
thrust
of
the
County’s
Amendments
were
to
attempt
to
block
any
unit
of
local
government
from
siting
a
solid
waste
landfill
in
Kankakee
County.
In
adopting
these
amendments,
however,
the
County
was
so
desperate
that
it
failed
to
comply
with
any
of
the
procedural
requirements
of
415
JLCS
15/5(a),
(b),
(c)
or
(d).
Since
these
amendments
were
not
properly
adopted,
they
do
not
become
a
part
of
the
County
Plan,
and
are
simply
irrelevant
in
this
case.
Why
would
Kankakee
County
take
the
action
it
did
regarding
these
amendments
when
it
had
to
realize
that
it
was
violating
the
procedures
specified
in
415
ILCS
1
5/5/(a)-(d)?
For
one
simple
reason
-
revenue.
Kankakee
County
wanted
to
be
the
only
government
unit
to
collect
the
$1.27
per
ton
Solid
Waste
Management
Fee
allowed
under
415
ILCS
5/22
1
5(j)(l)
and
other
host
fees.
The
County
would
have
no
revenue
from
a
solid
waste
landfill
located
in
a
municipality
which
elected
to
impose
the
maximum
Solid
Waste
Management
Fee
allowed
by
statute.
Fearing
its
loss
of
revenue,
the
County
attempted
to
improperly
use
the
SWPRA
to
exert
total
control
over
siting
approval
for
pollution
control
facilities
in
Kankakee
County.
Unfortunately
for
the
County,
its
actions
violated
both
the
Illinois
Constitution
and
statutes
as
presented
above.
The
City
of
Kankakee’s
approval
of
the
siting
of
43
Town
& Country’s
landfill
facility,
supported
by the weight
of
the evidence,
should
be affirmed
accordingly.
V.
CONCLUSION
For
the
foregoing
reasons,
Town
&
Country
Utilities,
Inc. and
Kankakee
Regional
Landfill,
L.L.C.
respectfully
pray
that
this Board
affirm
the
decision
of
the
Kankakee
City
Council
granting
siting
approval.
Respectfully
Submitted,
Town
& Country,
Utilities,
Inc. and
Kankakee
Regional
Landfill,
L.L.C.
Respondents,
BY:
O4
ThejfAttorney
GEORGE MUELLER,
P.C.
Attorney
at Law
501 State
Street
Ottawa,
IL
61350
Phone:
(815)
433-4705
44