BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
RE
CE
!V
ED
CLERK’S
OFFT(F.
MAY
2
2003
STATE
OF
IWNOIS
)
(Pollution
Control
FjJgon
Con
tral
Board
)
Siting
Application)
©IIIIA
TO:
See
Attached
Service
List
PLEASE
TAKE
NOTICE
thaton
May
19,
2003,
we
filed
with
the
Illinois
Pollution
Control
Board,
the
attached
MOTION
FOR
LEAVE
TO
FILE
REPLY
BRIEF
INSTANTER,
in
the
above
entitled
matter.
W
Donald
J.
Moran
PEDERSEN
&
HOLTPT
161
North
Clark
Street,
Suite
3100
Chicago,
Illinois
60601
(312)
641-6888
Attorney
Registration
No.
1953923
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.,
)
)
Petitioner,
)
vs.
COUNTY
BOARD
OF
KANE
COUNTY,
ILLINOIS,
Respondent.
No.
PCB
03-104
NOTICE
OF
FILING
By:
of
Its
Attorneys
‘1
361469
v2
May
19,2003
This
Document
is
Printed
on
Recycled
Paper.
PROOF
OF SERVICE
Nadia I.
Mirza, a non-attorney,
on
oath states
that she served the foregoing
MOTION
FOR
LEAVE
TO FILE
REPLY
BRIEF INSTANTER
by
facsimile
on this 19th
day of May, 2003:
Ms. Dorothy
Gunn, Clerk
Illinois
Pollution
Control Board
100
W.
Randolph St., Suite 11-500
Chicago, IL 60601
Jennifer
J. Sackett
Pohlenz
Querrey
&
Harrow,
Ltd.
175
W.
Jackson,
Suite 1600
Chicago, IL 60604
Via Facsimile - (312)
540-0578
Mr. Brad Halloran
Assistant Attorney
General
Environmental
Division
100 West Randolph,
11th Floor
Chicago, Illinois
60601
I
-7 //_
J
2-
--
Nadia I. Mirza
DIM 361469 v2
May 19,
2003
This Document
is Printed
on Recycled
Paper.
CLERIcs
OFFICE
BEFORE
ONTROL
BOARI)
ML\Y
2
t)
rj
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.,
STATE
OF
ILLINOIS
Pollution
Control
Board
Petitioner,
)
No.
PCB
03-104
)
vs.
)
(Pollution
Control
Facility
)
Siting
Application)
COUNTY
BOARD
OF
KANE
COUNTY,
)
ILLINOIS,
)
Respondent.
)
MOTION
FOR
LEAVE
TO
FILE
REPLY
BRIEF
INSTANTER
Petitioner,
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.
(“WMII”),
by
its
attorneys
Pedersen
&
Houpt,
requests
leave
to
file
its
Reply
Brief
in
Support
of
its
Petition
for
Review
in
the
above-captioned
matter
Q’Reply
Brief”)
instanter.
In
support
of
this
Motion,
WMII
states
as
follows:
1.
WMII’s
Reply
Brief
was
due
to
be
filed
today,
May
19,
2003.
2.
Due
to
a
word-processing
error,
WMTI
was
unable
to
file
its
Reply
Brief
by
4:30
p.m.
on
May
19,
2003.
3.
WMII
intends
to
file
its
Reply
Brief
first
thing
in
the
morning
on
May
20,
2003,
and
to
serve
copies
via
facsimile
to
all
counsel
of
record
immediately
thereafter.
4.
Counsel
for
Kane
County
has
been
contacted
about
the
delay
and
has
no
objection
to
WMII
filing
its
Reply
Brief
on
May
20,
2003.
5.
The
decision
deadline
is
June
19,
2003
and
the
one-day
extension
in
filing
the
Reply
Brief
should
not
unduly
delay
these
proceedings.
)
WHEREFORE,
WMII
requests
that
it
be
given
leave
to
file
its Reply
Brief Instanter
and
for
any
such further
and
other relief
deemed
appropriate.
Donald
J. Moran
Lauren
Blair
PEDERSEN
&
HOUPT,
P.C.
161
North Clark
Street
Suite 3100
Chicago, Illinois
60601
Telephone:
(312) 641-6888
Respectfully
Submitted,
WASTE
MANAGEMENT
OF ILLINOIS,
INC.
of Its
Attorneys
BEFORE
THE
IL
J8pLLUTION
CONTROL
BOARlEjED
jul
<1\
5
;\r
WASTE MANAGEMENT
OF ILL
.,
L
MY
2
2003
STATE
OF
IWNOIS
)
No.
PCB 03-104
Pollution
Control
Board
vs.
)
(Pollution Control Facility
)
Siting Application)
COUNTY
BOARD OF KANE
COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See
Attached Service
List
PLEASE
TAKE
NOTICE that
at 8:15 a.m. on May 20, 2003,
we filed with the
Illinois
Pollution Control Board,
the attached REPLY BRIEF
OF WASTE MANAGEMENT
OF
ILLINOIS, INC. IN SUPPORT
OF THE SITING APPEAL
TO CONTEST
THE KANE
COUNTY BOARD SITE
LOCATION
DENIAL in the above
entitled matter.
WA
By
Donald
J.
Moran
PEDERSEN
&
HOUPT
161 North Clark Street, Suite
3100
Chicago,
Illinois 60601
(312) 641-6888
Attorney
Registration No. 1953923
Petitioner,
)
)
MANAGEMENT
OF ILLINOIS,
INC.
One of Its Ayornes
366181
This document was printed
on
recycled
paper.
PROOF
OF
SERVICE
Victoria
L. Kennedy,
a
non-attorney,
on
oath
states
that
she
served
the foregoing
REPLY
BRIEF
OF
WASTE
MANAGEMENT OF
ILLINOIS,
INC.
IN
SUPPORT
OF
THE
SITING
APPEAL
TO
CONTEST
THE
KANE
COUNTY
BOARD
SITE
LOCATION
DENIAL
by
hand
delivery
to
the
parties
listed
below
on or before
9:00
a.m.
on this
20th
day
of
May,
2003:
Ms. Dorothy
Gunn,
Clerk
Illinois
Pollution
Control
Board
100W.
Randolph
St.,
Suite
11-500
Chicago,
IL
60601
Derke
J. Price
Ancel,
Glink,
Diamond,
Bush,
DiCianni
&
Rolek,
P.C.
140 South
Dearborn
Street,
Sixth
Floor
Chicago,
IL 60603
Jennifer
J.
Sackett
Pohlenz
Querrey
&
Harrow,
Ltd.
175
W.
Jackson,
Suite
1600
Chicago,
IL
60604
Mr. Brad
Halloran
Assistant
Attorney
General
Environmental
Division
100
West
Randolph,
11th
Floor
Chicago,
Illinois
60601
/
‘\
Victoria
L.
Kennedy
)
366181
This
document
was printed
on
re
cycled
paper.
WASTE
MANAGEMENT
OF ILLINOIS,
NC.,
Petitioner,
COUNTY
BOARD
OF KANE
COUNTY,
ILLINOIS,
Respondent.
BOAR3RR
OPFi
MIW
‘02003
STATE
OF
ILLINOIS
Pollutjo,,
Control
Board
)
(Pollution
Control
Facility
)
Siting
Appeal)
)
)
)
)
)
)
)
No.
PCB 03-104
REPLY
BRIEF
OF
WASTE MANAGEMENT
OF
ILLINOIS,
INC.
IN SUPPORT
OF
THE
SITING
APPEAL
TO
CONTEST
THE
KANE COUNTY
BOARD
SITE
LOCATION
DENIAL
Attorney
for Waste
Management
of Illinois,
Inc.
161 North
Clark
Street
Suite
3100
Chicago,
Illinois
60601
312-641-6888
312-641-6895
(Fax)
BEFORE
)
vs.
PEDERSEN
& HOUPT
By:
Donald
J. Moran
This
document was
printed on recycled
paper.
364687, 1
TABLE OF
CONTENTS
Introduction
1
II.
Argument
3
A.
The
County
May Not
Deprive
WMII of Its
Right to Present
Its
Case By
Basing
The
Siting
Decision
On The Wrong
Legal
Standards
3
B.
WMII
Did Not Waive
Its
Right to
Object
to The Walter
Memorandum
5
C.
The
Walter
Memorandum
Contains
Numerous
Misapplications
of the Law
8
D.
The
Walter
Memorandum
Contains
Numerous
Factual Inaccuracies
10
1.
Criterion
6 — Traffic
Volumes
10
2.
Criterion
6 — Traffic
Signal
Phasing
12
3.
Criterion
6 — Traffic
Signal
Warrants
12
4.
Criteria 2
and
8
— Schools
14
5.
Criteria
2 and
3
— Woodland
Landfill
End Use
Plan
15
E.
The
Walter Memorandum
Improperly
Considered
Information
Outside
the Record
18
1.
Criterion
6 - Inbound
Collector
Trucks
18
2.
Criterion
6 - Over-Burdened
Bridges
18
3.
Criterion
6 - Rail Lines
19
4.
Criteria
2 and
3
-
Comprehensive
Plan
of
South Elgin
20
5.
Criteria
2 and
3
- Request
for Relief
23
F.
WMII
Complied
with
Section
39.2(c)
23
G.
The County
Board’s Failure
to Find
That
Criteria 2,
3, 6 and
8
Were
Met is Against
the
Manifest
Weight
of the
Evidence
25
1.
The
County Board’s
Failure
to
Find That Criterion
2
Was
Met
is Against
The
Manifest
Weight
of the Evidence
26
2.
The
County Board’s
Failure
to
Find
That
Criterion
3
Was
Met
is
Against the
Manifest Weight
of the
Evidence
28
3.
The
County
Board’s
Failure
to Find That
Criterion
6
Was Met
is
Against the
Manifest
Weight
of the
Evidence
30
4.
The County
Board’s Failure
to Find
That Criterion
8
Was Met
is Against
the Manifest
Weight
of the
Evidence
31
5.
Strict
Compliance
with
the Kane
County
Siting Ordinance
is Not
Required
to Satisfy
the Statutory
Criteria
31
III.
Conclusion
35
This
document was
printed
on recycled
paper.
364687.1
BEFORE THE ILLINOIS
POLLUTION
CONTROL
BOARD
WASTE
MANAGEMENT
OF ILLINOIS, INC.,
)
)
Petitioner,
)
No.
PCB 03-104
)
)
(Pollution
Control Facility
vs.
)
Siting Appeal)
)
COUNTY BOARD OF KANE
COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
REPLY
BRIEF OF
WASTE MANAGEMENT
OF ILLINOIS,
INC.
IN
SUPPORT OF THE
SITING APPEAL
TO CONTEST
THE
KANE COUNTY BOARD
SITE
LOCATION
DENIAL
I.
INTRODUCTION
In its Introduction,
Respondent County Board
of Kane County,
Illinois (“County”)
makes
numerous misstatements.
Three
will be addressed here.
First, the County
states
that “WMII proposed
to
locate
the transfer
station in
unincorporated Kane County,
on the same site and
within the boundaries
of the existing
Woodland
Landfill,”
and references the Application
Criterion 2 report,
Figure
2. (County
Response Brief,
p.
1.) There is
no “Figure 2” within the Criterion
2 report. In addition,
the
Facility will not be located within the
boundaries of the existing
Woodland
Landfill,
but
will
be
located on an
approximately
9-acre parcel located
at the southeast
corner
of the “permitted
Woodland Landfill property.”
(Application at Criterion
2,
p.
2-1, and
Figure 2-1.)
This document was printed
on recycled paper.
364687.1
1
Second,
the
County
states
that its
decision
“is
comprised
of
Resolution
02-431,
the local
hearing
officer’s
findings
of
fact and
law, and
a County
Board
Member,
Don
Walter’s four
page
written
summary.”
(County
Response
Brief,
p.
2.)
In fact,
the
Walter
Memorandum
was
a six
page document.
(PCB
Hearing,
Petitioner’s
Exhibit
No.
1.)
Moreover,
it was
not attached
as
an
exhibit
to
Resolution
02-431,
but merely
referred
to in that
Resolution.
(Id.)
Third,
the County
states that,
in
addition
to criteria
2, 3,
6
and
8,
the
County
Board
also
found
criteria
1 and
5 were
not
satisfied.
(County
Response
Brief,
pp.
2,
47.)
Resolution
02-43
1
adopted
the Findings
of
the Hearing
Officer
(“Findings”),
except
to the
extent
they were
inconsistent
with
the Walter
Memorandum.
These Findings
concluded
that
the
criteria
were
met
subject
to conditions.
The
Walter
Memorandum
stated
that
criteria
2, 3,
6 and
8 were
not
met.
Admittedly,
the
Walter
Memorandum
is at times
opaque
and a difficult
document
to
understand.
Nonetheless,
any
fair reading
of that document
would
not
disclose
any
mention
of criteria
1 and
5, much
less the conclusion
that criteria
1 and
5 were
not satisfied.
If
the
County’s
contention
that criteria
1 and
5
were
found
not
met
had any merit,
then
it would have
been uunecessary
to
refer
to
the Walter
Memorandum
at all,
because
the Findings
of the
Hearing
Officer
alone
would
have
established
that
all the subject
criteria
were not satisfied.
The
County’s
contention
is
baseless.
Concerning
Respondents’
legal
arguments,
the
County
further
claims
that
the Walter
Memorandum
was
a
summary
and opinion
about
the evidence
to which
WMII had
no
right
to
respond.
(County
Response
Brief,
pp.
5, 12-13.)
Amicus
Curiae
Village
of
South
Elgin
(“Village”)
claims
that
the
Walter
Memorandum
was no
different
than
the report
prepared
by
county staff
in Land
and
Lakes
Co. v Illinois
Pollution
Control
Board,
319
Ill. App.
3d
41,
743
N.E.2d
188, 195-96
(3d Dist. 2000).
In fact,
the Walter
Memorandum
was
an
advocacy
This document
was
printed
on
recycled
paper.
364687.1
2
document
intended
to persuade
the County
Board
to deny
the
Siting
Application.
Unlike
the
Olson
Report
in
Land
and
Lakes
Co., the
Walter
Memorandum
contained
legal
and
factual
errors
on
which
the
County
Board’s
denial
was
based.
Such
a result
was fundamentally unfair,
and
explains
why
the
County
Board’s
failure
to find
that criteria
2,
3,
6
and 8 were
met
is against
the
manifest
weight
of
the evidence.
In
addition,
the
County
and
Village
attempt
to
support
the
denial
of the
Woodland
Transfer
Facility
(“Facility”)
Site
Location
Application
(“Application”)
request
by
asserting
the
lack of
strict
compliance
with
certain
technical
requirements
of the
Kane
County
Siting
Ordinance
(“Ordinance”)
and
the
Kane
County
Solid
Waste
Management
Plan
(“the
Plan”).
(County
Response
Brief,
pp.
16,
27, 36,
44-47;
Amicus
Brief,
pp.
4-8.)
Their
attempt
is
unavailing
because
those
requirements,
when
they
are
not unreasonable
or
irrelevant
to
a
proper
consideration
of
the
statutory
criteria,
are
both
inconsistent
with
the
Act
and not
probative
of
whether
the
criteria
were
satisfied.
II.
ARGUMENT
A.
The County
Board
May
Not
Deprive
WMII
of
Its Right
to Present
Its
Case
By
Basing
the
Siting Decision
On
The
Wrong
Legal
Standards
The
County
contends
that
WMII
asserts
a
right
to
comment
on the
fact finder’s
or
decision-maker’s decision
prior
to
the
decision
being
finalized.
(County
Response
Brief,
p.
6.)
This
contention
assumes
that
the
Walter
Memorandum
was
the
County
Board
decision.
In fact,
the
Walter
Memorandum
was
not a
decision,
but
an argument
by an
opponent
intended
to
persuade
the
County
Board
to
reach
a decision.
WMII
does
not
claim
a
right
to
comment
on
the
County
Board’s
decision
before
it is
finalized.
WMII
does
not
claim
that
it
must
be
given
an
opportunity
to respond
to the
County
This document
was
printed
on
recycled
paper.
364687.1
3
Board’s
decision
before it
is voted upon.
Rather,
WMII
asserts
that the
County
Board
may
not
base
its
decision
on a memorandum
that misstates
the law
and
facts
relating
to the
statutory
criteria.
It is
fundamentally
unfair for
the County
Board
to
rely
for its
decision
on
incorrect
legal
standards
and
inaccurate
facts supplied
to
it
by
a County
Board member
opposed
to the
Application.
The
resulting
decision
is a
legislative,
not
an adjudicative,
one.
Basing
its
denial on
the
wrong
legal
standard
and erroneous
facts, the
County
Board
has
deprived WMII
of a
full
and fair
opportunity
to present
its case.
By
accepting
and
applying
the
incorrect legal
standard
for determining
whether
criteria
2,
3,
6 and 8
were
satisfied,
the County
Board rendered
WMII
‘ s
factual
presentation
on
those
criteria irrelevant
and
immaterial.
This
nullification
of
WMII’ s evidence
prevented
WMII
from
making
its
evidentiary
showing
that
those
criteria were
met
and
that the Application
should
be
approved.
This preclusion
deprived
WMII
of the opportunity
to
present
its case,
and
was fundamentally
unfair.
Similarly,
the
reliance
on erroneous
facts deprives
Wivill
of its
right
to present
its
case.
It
is well established
that
the decision
maker’s
reliance
on inaccurate
or
erroneous
facts
is
fundamentally
unfair. Land
and
Lakes Co.
v.
Pollution
Control
Board,
245
Ill.App.3d
631,
616
N.E.2d 349,
354 (3d
Dist.
1993);
City of
Rockford
v. Winnebago
County,
No. PCB
87-92,
slip
op.
at
9
(November
19,
1987).
Where, as
here,
those
erroneous
facts are
relied upon
in
denying
that
the
statutory
criteria
have
been
met,
such reliance
is highly
prejudicial.
Where,
as
here,
an
applicant
has been
afforded no
opportunity
to
respond
to or
correct
those
facts,
the applicant’s
right to
present
its
case
has been
fatally
compromised,
and
the procedure
has been
rendered
fundamentally
unfair.
This document
,‘as printed on
recycledpaper.
364687.1
4
B.
WMII Did
Not Waive
Its
Right
to
Object
to the
Walter Memorandum
The
County contends
that
because WMII
was
in
attendance
at
the December
10,
2002
County
Board
meeting
and did not
raise an objection
to
the Walter
Memorandum
or request
an
opportunity
to
respond
thereto, WMII
waived
its right
to
argue in
this
appeal
that the Walter
Memorandum
was
an adversarial
document
that
rendered
the
local
siting
process
fundamentally
unfair.
The County’s
waiver
argument
only
highlights
the fundamental
unfairness
of
introducing
the Walter
Memorandum,
an
inaccurate
advocacy document,
at
the County
Board public
meeting,
a
non-advocacy
proceeding.
Waiver
occurs
by failing
to object
to some known
bias
or impropriety
in any
of the
proceedings
prior to
or
during the
local
hearings.
Miller
v.
Pollution
Control
Board,
267 Iii.
App. 3d
160, 170,
642 N.E.2d
475,
484 (4th
Dist. 1994);
A. R. F. Landfill,
Inc.
v. Pollution
Control
Board,
174
Ill. App.
3d 82,
88, 528
N.E.2d
390,
394 (2d
Dist.
1988).
While true
that
a
party’s
failure
to
object in a
judicial or
administrative
proceeding
generally
results
in
a waiver
of
the
right to
raise
the
issue on
appeal, the
County’s
waiver argument
ignores
the obvious
fact
that
the
December
10,
2002
County
Board
meeting was
not ajudicial
or administrative
proceeding.
The
County
implies
that
by simply
being
present at the
December
10,
2002
County
Board
meeting,
WMII had
the
ability
to object
and
adequately
respond
to all of
the
factual
and legal
inaccuracies
in the
Walter
Memorandum.
However,
county
board
meetings
are not
proceedings
wherein
attendees
have the
ability to raise
objections,
present
evidence,
make arguments
and
obtain
judicial
or
administrative
rulings
to
which
they
can
take
exception
in
order
to preserve
those
issues
for
appeal.
Rather,
a
county board
meeting
is the forum
wherein
county
board
members
gather
to
review, discuss
and vote
on
various
matters
of county
board
business
on
the
This document
was printed
on recycled paper.
364687.1
5
agenda.
While
public comment
may be taken,
attendees
certainly
have
no standing
to object
to
the
deliberations
of county
board members.
Moreover,
had WMII
been
aware
of
the contents
of the Walter
Memorandum
and
attempted
to meaningfully
challenge
it at the
County
Board
meeting,
such action
might
have
been construed
as an
improper
ex
parte contact
between
the
Applicant
and the decision-maker.
See Land and
Lakes Co.
v. Randolph
County
Board
of Commissioners,
No. PCB
99-69,
slip
op.
at
pp.
3-4,
7-8
(September
21, 2000)
(local
siting
proceeding
found
to
be
fundamentally
unfair
where landfill
opponents
spoke
to board
members
at a county
board meeting
about
their
opposition
to the landfill.)
This
is
exactly
why it
was fundamentally
unfair
to have
presented
the
Walter Memorandum
at the County
Board
meeting,
after the
public hearing
had been
concluded
and the public
comment
period
had
closed,
when WMII
was
effectively
powerless
to
take any
meaningful
action
in
response.
Even if
WMII had
the ability
to adequately
object
and
respond
to
the
Walter
Memorandum
at the
County
Board meeting,
a
waiver
is only
effective
if
it is a clear
and
knowing
waiver.
Fairview Area
Citizens
Taskforce
v. Pollution
Control
Board,
198 Ill. App.
3d
541,
545,
555
N.E.2d 1178,
1180-81
(3d
Dist.
1990). As
stated in Fairview
Area
Citizens
Taskforce,
the
case
cited
by the
County
in support
of
its
waiver
argument,
a party is
only obligated
to
object
“after
knowledge
of
the alleged
[impropriety].”
Id. (emphasis
added.)
There is
absolutely
no
evidence
in the
record that
WMII
knew
about the
Walter Memorandum
or its contents
prior
to,
or at the
time
of, the
County
Board’s
decision
denying
local siting
approval.
Indeed, the
record
contains no
indication
that the Walter
Memorandum
was
distributed
to
WMII
or any
of the
persons
who attended
the
County
Board
meeting.
This document
,‘as printed
on re cycled
paper.
364687.1
6
The statement
in
the County’s
Response
Brief that
“WMH
heard County
Board
Member
Walter
read substantial
portions
of
his four-page
written
document”
is
simply
false.
(County
Response
Brief,
p.
10.) No
transcript
of the December
10, 2002 meeting
exists.
There
is nothing
in
the
record indicating
exactly what
portions,
if any, Mr.
Walter
read aloud
from
the
Walter
Memorandum
at the County
Board
meeting,
and there is
certainly
no evidence
that WMII
“heard”
any
of
it.
Given
the lack
of any
citation
to
the record to
support such
a proposition,
the
County
apparently
felt
compelled
to make
that statement
based
upon pure
conjecture.
The
portion
of the
record
(C003 126)
to which
the County
cited
in
its Response
Brief
purports
to
be a
synopsis
of
statements
made
at the
meeting
by
Derke Price
and Jim
Hanson
on
behalf
of the
Village,
and
by Dale
Hoekstra,
Director
of
Operations
for
WMII.
(County
Response
Brief,
pp.
10,
19.) No transcript
of
the December
10 meeting
exists.
The
following
is
the
synopsis
of
statements
purported
to
have
been made
by Mr. Hoekstra:
Dale
Hoekstra,
Director
of Operations
for
Waste
Management
stated
that they
would operate
the
Woodland
Transfer Station
with
the same
high standards
that
they
have
Settlers
Hill
Landfill
and
that
they
will
accept the
conditions.
He had two
comments,
one
that
extension of
hours
in
emergency
situations
is approved
and
that
the
Board
take into
consideration
similar
conditions
for any
other
facility located
in
Kane
County.
(C003
126)
(emphasis
added.)
If anything,
the
logical
inference
from
this
synopsis
is that
WMII
was
not
aware
of
the
Walter
Memorandum
(which advocated
denial of
siting approval
and
rejected
approval
with
conditions)
in
light of
the indication
that WMII
“will accept
the
conditions.”
Given
that the
record is devoid
of any
evidence
that WMII
received,
reviewed
or heard
any
portion
of the
Walter
Memorandum
at the
meeting,
the County
cannot,
in good
faith,
allege
This document
was printed
on recycledpaper.
364687.1
7
that
WMII
had any
knowledge
of the Walter
Memorandum
or
its contents.
Therefore,
without
advance
knowledge
of
the
Walter
Memorandum
and
its objectionable
contents,
WivilI
could
not
possibly
have
given a clear,
unequivocal
and unambiguous
waiver
of
its right
to object
to that
document
on appeal.
C.
The
Walter Memorandum
Contains
Numerous
Misapplications
of Law
The
County
argues that
WMII
did not
adequately
or
correctly
show
how
the Walter
Memorandum
misapplied
certain legal
standards,
and
therefore,
WMII’s
arguments
in this
regard
should
be denied.
(County
Response
Brief,
pp.
14-16.)
The
County
first
claims
that,
in
addition
to incorrectly
articulating
the
legal
standard
for
criterion
2, WMII also
failed to
allege
how
the Walter
Memorandum
misapplied
the legal
standard
in reaching
its
conclusion
that
criterion
2
was
not met.
(County
Response Brief,
pp.
14-
15.)
In its
opening
Brief,
WMII cites
Industrial
Fuels
& Resources
v.
Pollution
Control
Board,
227
Ill. App.
3d 533,
592
N.E.2d 148
(1st Dist.
1992), for
the principle
that
criterion
2
requires
a
demonstration
that
the design
or operation
of
the
proposed
facility
does
not pose
an
unacceptable
risk
to the public
health and
safety.
(Petitioner’s
Brief,
p.
8.) It is
unclear why
the
County
believes
that
this is
not the holding
of
Industrial
Fuels,
given
that the
First
District
clearly
held
that
the findings
of
the Board
and the
county
board
that
criterion 2
had
not
been
met in that
case
were
against
the
manifest
weight
of
the
evidence
because
there was
nothing
in
the record
to rebut
or
contradict
the
applicant’s
showing
that
the
facility
was
designed
to
protect the
public
health,
safety, and
welfare.
Industrial
Fuels,
592 N.E.2d
at 157.
In
addition
to
stating
the correct
legal
standard,
WMII clearly
explained
that the
Walter Memorandum
misapplied
this legal
standard
by basing
its
conclusion
that
criterion
2 had not
been
met on
WMII’s
alleged failure
to
identify
certain schools
in
the area
and
to consider
the
end
use
plan for the
Woodland
Landfill,
rather
This
document was
printed
on
recycled
paper.
364687.1
8
than evaluating
how
the design
or
operation
of
the
Facility
would
pose
an unacceptable
risk
to
public health
and safety.
(Petitioner’s
Brief,
pp.
8-9.)
With
respect
to criterion
6,
WIVIII
explained
in its
opening Brief
that it
was legally
erroneous
for
the
Walter
Memorandum
to
conclude
that criterion
6 had
not
been
met on
the
supposed
basis
that
[a]ll
existing routes
have been
shown
to be
inadequate
by expert
testimony”
when
all that is
required
under
the Act
is for
the
applicant
to demonstrate
that
traffic
patterns
to
and
from the facility
are so
designed
as to
minimize
the
impact on
existing traffic
flows.
(Petitioner’s
Brief,
p.
11;
County Response
Brief,
p.
15.)
(emphasis
added.)
In its
Response
Brief,
the
County
attempts
to argue that
there
is
no
basis
for WMII’s
assertion
that
the
County
Board
considered
“adequacy”
rather
than
“minimization.”
(County
Response
Brief,
p.
15.)
In
fact,
that is precisely
what the
Walter Memorandum
stated,
that is,
“a(ll
existing
routes
have
been
shown
to
be
inadequate.”
It is
illogical
to
conclude,
as the
County
invites,
that the
Walter
Memorandum
used
“inadequate”
to refer
to WMII’s
inability
to meet
criterion
6,
when the
plain
language
of the
phrase shows
that
the
word
“inadequate”
modifies
the word
“routes.”
Finally,
with respect
to criterion
8,
the
County
does not
argue that
WMII
inadequately
or
incorrectly
explained
how
the Walter
Memorandum
misapplied
that
legal
standard.
Instead,
the
County argues
that WMII’s
fundamental
fairness
argument
is really
a
manifest
weight
of the
evidence
argument.
However,
WMII’s
fundamental
fairness argument
stands
separate
and
apart
from
WMII’s
manifest weight
of
the evidence
argument,
and is
simply this:
because
the Walter
Memorandum
is an
advocacy
document submitted
to
the County
Board
for
the purpose
of
persuading
it to
deny
local siting
approval,
and
because the
Walter
Memorandum
contains
misstatements
of
facts and
law which
were
relied
upon
by
the
County
Board
in
making
its
decision,
the
local
siting
process
was tainted
and
resulted
in
a legislative
decision.
This
document
was
printed
on
recycledpaper.
364687.1
9
D.
The Walter
Memorandum
Contains
Numerous
Factual
Inaccuracies
The
County
claims
that
“WMII
wants
the
IPCB
to
rely on
WMII’s
paraphrased
and
out-
of-context
reiteration
of portions
of that
portion
of
Resolution
02-431
comprised
of County
Board
Member
Dan Walter’s
four-page
document.”
(County
Response
Brief,
p.
14.)
The
County
further
argues
that
“an
‘inaccuracy,’
if any,
was insignificant
(particularly
in
a
record
that
is
almost
5000
pages
long);
is not
of
a
substantial enough
fact
to
reverse
the decision
of
the
Kane
County
Board
on a
manifest
weight
of the
evidence
argument;
and
did
not
interfere
with
the
procedural
due
process
of
the
hearings
and
WMII’s
right
to be
heard.”
(County
Response
Brief,
p.
17.)
This
argument
is without
merit.
The
County
argues
that
the
quantity
of
evidence
presented
in
this
record
somehow
justifies
the
appropriateness
of
the County
Board’s
decision
and overshadows
the
“insignificant”
inaccuracies.
However,
quantity
does
not
determine
relevance
or overcome
materiality.
The
inaccuracies in
the
Walter
Memorandum
were
significant,
and
provided
the basis
for the
denial
of
the
Application.
Contrary
to
the County’s
claim,
the
erroneous
facts are
significant
because
they were
the
basis for
the
Walter
Memorandum’s argument
that
criteria
2,
3, 6
and
8 were
not met.
The
County’s
response
to the
factual
inaccuracies
in
the
Walter
Memorandum,
was not
to
demonstrate
the
accuracy
of those
facts
but, rather,
to
dismiss
them
summarily
as insignificant
or
not
substantial.
(County
Response
Brief,
p.
17.)
The
County’s
attempt
to
explain
the inaccurate
facts
are now
discussed
in the
order
in
which
they
appear
in the
County
Response
Brief.
1.
Criterion
6:
Traffic
Volumes:
“Under
cross-examination,
their
traffic
expert’s
testimony
confirmed
that
the
traffic
volume
represented
as existing
traffic
at the
time
of their
application should
have
been
about 160,
not
the
five-year
average
of
227
This
document
was
printed
on
recycled
paper.
364687.1
10
as
shown.
They
presented
afive-year
average
traffic volume
when
the
volume of
landfill
related
truck
traffic
was significantly
decreasing.
Their
conclusions,
including
their assertion
that
traffic
would
decrease,
are flawed.
(Pp. 28-29,
9/30/02)”
(Walter
Memorandum,
p.
1.)
This
is the
very
first statement
in
the
Walter
Memorandum
addressing
any
criterion.
Contrary
to the County’s
contention,
it
is
not
paraphrased,
nor
taken
out of context.
(Petitioner’s
Brief,
p.
15.) The
Walter
Memorandum
suggested
that Mr.
Miller relied
upon the
wrong
traffic
volume,
utilizing
an
historical
number
rather than
an actual
number.
Hence,
the
Walter
Memorandum
argues
that
WMII’s
conclusions
regarding criterion
6
“are flawed”
and,
for
this
reason,
should
be
rejected.
(Walter Memorandum,
p.
1.)
However,
this
is an incorrect
representation
of
Mr.
Miller’s
testimony.
(Petitioner’s
Brief,
pp.
1
4-15.)
Mr.
Miller testified
that
the number
of
vehicles
at the Facility
initially
would
be less,
even at 1,000
tpd,
due
to the mix
of the types
of trucks
used at
the Facility.
(9/30/02
Tr.
at
34-
35.) The
County
fails to
acknowledge
all
of
the
actual
traffic-count
data
contained in
the
Application,
supporting
the traffic
volumes
utilized
by Mr.
Miller
to
develop
his opinion
regarding
the
appropriate
traffic volumes.
The
County claims
that
Mr.
Miller’s
testimony
is
flawed
and that
he is
inconsistent.
The objection
is groundless.
Mr.
Miller testified
that
the
vehicle
count
per day
increases
at
the time of
the Facility
opening due
to
the addition
of transfer
trailers.
However,
he does
not state
that truck
volumes will
increase
over existing,
but
that
the
mix of trucks
will
be
different
and
still result
in a lower
volume
over
existing.
(9/30/02
Tr.
at
35.)
The Walter
Memorandum
mischaracterizes
Mr.
Miller’s
testimony
and,
in so doing,
stated that
WMII’s
conclusions
regarding
criterion
6
were
flawed
and must
be rejected.
This
mischaracterization
was
one of the
bases
for
the County
Board’s
denial
of criterion
6.
This
document
was
printed
on recycled
paper.
364687.1
11
2.
Criterion
6 — Traffic
Signal
Phasing:
“The
traffic expert
for the applicant
asserted
that
the use
of Rt. 25
to
Bartlett
Road
would
not
work
for multiple
reasons.
Among
these
reasons,
the
intersection
would require
a
change
in
the traffic
signal phasing
which IDOT
has informed
them would
not
be
granted.
(pp.
32-34,
9/30/02).”
(Walter
Memorandum,
p.
2.)
Contrary
to
the
County’s
claim,
this
statement
is not paraphrased
or
taken out of
context.
(Walter
Memorandum,
p.
2.) The
statement
is
erroneous
and misleading
because
it
suggests
that
a request
made
to
IDOT for
a signal
change
at the Rt.
25/Dunham
Road
intersection
“would
not
be granted.”
(Petitioner’s
Brief,
p.
15.) In
fact,
the
record
established
that
Mr.
Miller
had a
conversation
with
IDOT regarding
a
traffic
signal
phase
change
at the Rt. 25/Dunham
Road
intersection.
IDOT
did not
reject a request
for
a signal change.
It
indicated
its knowledge
of
the
intersection
and
its
reluctance
to make
a change
at a time when
the Stearns
Road
realignment
was already
scheduled
for construction.
(Petitioner’s
Brief,
pp.
15, 16;
9/30/02
Tr. at 32,
33.)
In
addition
to its
falsity,
the Walter
Memorandum’s
statement
that
a request
for
a signal
change
“would
not
be granted,”
suggested
to
the
County
Board
that WMII
was unable
to
demonstrate
that
criterion
6 could
be met.
This
was
an unfair characterization
that was
considered
by the
County
Board in
deciding whether
criterion
6 was satisfied.
3.
Criterion
6 — Traffic
Signal
Warrants:
“A
traffic signal
would
ultimately
result
in three traffic
signals
within
a
half-mile.
Mr. Miller,
for the applicant,
indicated
that warrants
“.
. would
not
even
be remotely
close”
to meeting
criteria
for
a
signal.
(p.
29-30,
10/01/02)
It is entirely
inappropriate
to
offer
this
as a “remedy”
to
address
one
of
the many
deficiencies
based
on
expert testimony
and
our
inability
to
guarantee
this
condition.”
(Walter
Memorandum,
p.
2.)
This
document
,I’as
printed on re cycled
paper.
364687.1
12
Contrary to the
County’s
claim, this
statement
is not paraphrased.
It is taken
from
a
paragraph
in the Walter
Memorandum
describing left
turns out of the
Facility and
the addition
of
a
traffic
signal at that
location.
Nothing
has been
taken
out of context.
The Walter
Memorandum indicates
that
it “is
entirely inappropriate
to offer this
as a ‘remedy’
to
address
one
of the many
deficiencies....” at the
Facility
entrance.
(Walter
Memorandum,
p.
2.)
The
suggestion
that
WMII offered
a
traffic
signal to
remedy
a deficiency
at the Facility
entrance,
when there
is no warrant for
a signal, is a key
consideration
in the County’s
consideration
of
criterion 6 because
it implies
that WMII acknowledged
a deficiency
and
attempted to correct
it
with a traffic
signal that could not
be justified.
However,
WMII
did neither. (10/01/02
Tr.
at
29.)
First, there is
no
evidence
presented
in
the Application that
WMII recommended
or
offered to install a traffic
signal
at
the Facility entrance.
(Petitioner’s
Brief,
p.
16;
Application
at
Criterion 6.) To the
contrary,
it was
Kane County ‘s own
expert,
Mr.
Brent Coulter, who
recommended
the addition
of a traffic signal
at the Facility
entrance. (emphasis
added)
(Petitioner’s
Brief,
pp.
16, 17;
10/03/02 Tr.
at
79-8
1,
89.)
Mr. Coulter even
admitted
that
“if the
site is approved
and volumes
are
monitored,
operating
conditions
are monitored,
signals
may
not
be warranted...”
(Petitioner’s
Brief,
pp.
16,
17; 10/03/02
Tr. at 141.)
The County fails to recognize
the inherent
error
in Mr. Walter having
ascribed
the
recommendation
of a
traffic signal to Mr.
Miller and not
to its own expert,
Mr. Coulter. This
error misled the County
Board
such
that it might presume
that it was
WMII who
recommended
this “entirely
inappropriate”
remedy,
protecting
the testimony
of the County’s witness,
and
protecting
Mr.
Walter’s
opinion,
which clearly
disagreed with
the
County’s
own expert.
This document was
printed
on recycled
paper.
364687.1
13
Second,
the County
misrepresented
the proposed
condition of the
Hearing
Officer
in
its
Response
Brief,
stating
“that
a traffic
signal
was
included
in
a
proposed
condition
for
the
transfer
facility
and
WMII’s
representative,
Dale
Hoekstra,
agreed
to
the
conditions.”
(County
Response
Brief,
p.
19.)
This
statement
is an
incomplete recitation
of
the
Hearing
Officer’s
proposed
condition,
leaving
out
a
vital
term.
The
Hearing
Officer
actually
recommended
“(t)he
Applicant
shall
install
or
provide
the
funds
to
the
applicable
highway
authority
to
install
a
traffic
signal
control
at the
site driveway
and
access
to
Ii.
Rt.
25,
f
warranted
or required
by
Kane
County
Division
of
Transportation
or
the Illinois
Department
of Transportation.”
(emphasis
added)
(Findings,
p.
33.)
Further,
the
County
claims
that
the
acceptance
of this
condition
is
part of
the
evidence
in this
record,
but
fails
to
indicate
that Mr.
Hoekstra
agreed
to
this
condition
during
a
public
statement made
at
the
December
10,
2002
County
Board
meeting.
Prior
to that
statement
on
December
10,
2002
(the
County
Board
decision
date),
the
only
evidence
in
this
record
that
the
County
Board
and
Mr.
Walter
could
have
relied
upon
was
the
recommendation
of a traffic
signal
by
the
County’s
own
witness.
4.
Criteria
2 and
8
—
Schools:
“Criteria
2
required
that they
protect
the health,
safety
and
welfare
of
the
public.
While
agreeing
that it
would
be
important
to
the
“. . .health
and
safety
and
welfare
of those
students”
to
have
traffic
studies
reflecting
the
routes
of these
students,
their
traffic
expert
admitted
none
were
considered.
(pp.
4 1-42,
09/03/02.)
Had
they complied
with
Section
28(a)(4)
of our
Ord.
01-281,
they
would
have
identtfied
the
schools
as
well
as
subsurface
mining
activities
to
the
north
already
generating
large
volumes
of
trucks.”
(Walter
Memorandum,
p.
3.)
Contrary
to
the
County’s
claims,
this
is not
a
paraphrase,
but a
direct
quote
from
the
Walter
Memorandum regarding
development
of
two
new
schools
to
be
located
“approximately
1.5
miles
north
of
the site.”
(Walter
Memorandum,
p.
3.)
In
its
Response
Brief,
the
County
This
document
was printed
on
recycled
paper.
364687.1
14
simply
omits
all
of the testimony
presented
by Petitioner’s
regarding
the
efforts
taken
by Mr.
Miller
to obtain
bus
routing
information
and his
knowledge
of the
schools.
In
fact,
Mr.
Miller
and
Mr. Lannert
considered
the
two new
schools
in
evaluating
the
Facility
relative
to
traffic
and
minimizing
incompatibility
with
the surrounding
area.
(Petitioner’s
Brief,
pp.
17-19;
9/30/02
Tr.
at
41,
42;
10/01/02
Tr.
at 85,
86,
122.)
The Walter
Memorandum
incorrectly
asserted
that
WMII
did not
consider
the
public
health,
safety and
welfare
of
the students
at
the two
new
schools.
Mr.
Miller
and
Mr. Lannert
testified
to their
knowledge
of
the schools,
the location
of the
schools,
discussion
with
the
school
districts,
and attempts
to obtain
bus
routing
information,
and concluded
that
at a distance
of 1
/2
miles, the
Facility
did
not pose
any
threat to
the public
health,
safety
and
welfare
of
the
students.
The
County
Board’s
consideration
of the
Walter
Memorandum
statements
regarding
school
bus
routes
was
a
factor
in its
decision
regarding
criterion
2.
5.
Criteria
2 and 3—
Woodland
Landfill
End
Use Plan:
• .the end
use plan
submitted
with that
application
[1988
siting
application]
makes
it clear
that
the
intended
use
for
this site
is passive
recreation.”
“These
conditions
were
not
taken
into
consideration
in Criteria
2,
or in
that portion
of
Criterion
3
that deals
with
incompatibility
with
the
surrounding
area. They
propose
to use
the site
drive
that was
to
become
the
access
drive
to
the park
for hundreds
of
trucks
weighing
up
to
80,000
pounds
each,
traveling
in
and
out
of the
proposed
facility
96
hours
per
week.
This
will directly
conflict
with
the
planned/promised
use as
a
park.”
(Walter
Memorandum,
p.
3,
4.)
Contrary
to
the County’s
claims,
these
two
statements
are
not paraphrased
and
are
direct
quotes
from
the
Walter
Memorandum
regarding
the
proposed
end
use
of
the
Woodland
Landfill.
These
statements
in the
Walter
Memorandum
imply
that
criterion
2
was
not
met
because
the
site
drive
that
was to
become
the
access
drive
to the
open
space/park
on
the Woodland
Landfill
This
docmnent was
printed
on
re
cycled paper.
364687.1
15
would be used
by “hundreds
of trucks weighing
up to 80,000
pounds each,
traveling
in and
out
of
the
proposed
facility
96 hours
per week.” (Walter
Memorandum,
p.
4.) It also
argued
that
this
traffic on the access
drive justified
a rejection
of criterion
3, because
such traffic
“will
directly conflict with
the planned/promised
use
as
a park.”
(Walter Memorandum,
p.
4.)
Thus,
the assertion
that hundreds
of trucks traveling
in
and
out
of
the facility
96 hours per week
was
a
basis for the
County Board’s
conclusion
that criterion
2 and 3 were not
met.
The
statement
that
the site
drive
was
to become
the access drive
to the park for
hundreds
of 80,000-pound
trucks
traveling
in
and
out of the proposed
facility
96 hours per week
is untrue.
First, a different
entry
location
would
be provided to
the park. (Petitioner’s
Brief,
pp.
19-21;
9/19/02
Tr.
at 146.) Second,
a review of Tables
1 and 2 presented
in the
Metro
report
discloses
the projected
traffic volumes
entering the Facility
each
day:
152 roll-off
trucks, weighing
approximately
39,000 lbs each when
fully
loaded;
142
packer
trucks, weighing
approximately
56,000 lbs each when
fully
loaded;
and 108 transfer
trailers, weighing
approximately
73,280
lbs
each when fully loaded
and leaving,
at current roadway
weight restrictions.
(Petitioner’s
Brief,
pp.
19-21;
Application
at Criterion
6,
pp.
10-11.) None
of the trucks
entering or
leaving
the
Facility
will
weigh 80,000
pounds. Only
approximately
108 transfer
trailers
will
leave the
Facility
weighing
approximately
73,280
pounds.
Third,
trucks
will not
be
traveling
in and out
of the Facility 96
hours
per week.
The
hours ofwaste acceptance
for the
Facility
are
6:00 a.m. to 6:00 p.m.,
Monday
through
Saturday,
which is 72 hours
per week. (Petitioner’s
Brief,
pp.
19-21;
Application at
Criterion 6,
p.
10.)
Mr. Hoekstra
testified
twice
that even though
a facility may
have
specified,
permitted
hours
of
waste
acceptance, in actuality,
the operator
may
choose
to have waste
acceptance
hours
that
are
This
document was printed
on recycled paper.
364687.1
16
shorter
than
the permitted
waste
acceptance
hours.
(Petitioner’s
Brief,
pp.
19-21;
9/26/02
Tr.
at
51;
10/3/02
Tr. at
9, 11.)
The
County
simply
ignored
all of
the
evidence
in
this
record
that
demonstrates
the
erroneous
nature
of
Mr.
Walter’s
summarized
evidence
as
stated above.
There
is no
demonstration
in
the
County
Response
Brief
that
WMII’s
witnesses
were
inconsistent
on
this
issue
and
that
Mr.
Walter’s
“references
are accurately
reflected
in
the record.”
(County
Response
Brief,
p.
21.)
The
conclusion
in the Walter
Memorandum
that
there
was
a “conflict
between
the
proposed
transfer
station
and the
end
use
for
Woodland
Landfill”
is
baseless.
The
County
ignores
all
of the
evidence
in this
record
which
establishes
the
contrary.
The
Woodland
Landfill
property
is
approximately
213
acres
in
size.
The Facility
will
be located
on
a
9-acre
parcel,
south
of the
Woodland
Landfill,
and
will
take
up
approximately
4.2
percent
of the
Woodland
Landfill
property.
(Petitioner’s
Brief,
pp.
19-21;
Application
at Criterion
2,
p.
2-1;
Petitioner’s
Exhibit
No.
11.)
The
Hearing
Officer
noted
in his
Findings
that
“The
area on
which
the transfer
station
is to
be
erected
is
not
part
of
the
Woodland Landfill
as
permitted
by the
Illinois
Environmental
Protection
Agency.”
(Petitioner’s
Brief,
pp.
19-21;
Findings,
p.
9.)
The
Facility
will
utilize
only
4.2
percent
of
the Woodland
Landfill
property.
It
has
been
concluded
by
Mr.
Lannert
to be
compatible
with
the
surrounding
area.
(Petitioner’s
Brief,
pp.
19-21;
9/17/02
Tr.
at 56.)
A
separate
entrance
will
be provided
to the
park, and
the
end use
plan
will
be developed
as
indicated
in
the 1988
Siting
Approval.
The
Walter
Memorandum
ignored
all
of this
evidence
in its
conclusion
that
the
Facility
“will directly
conflict
with
the
planned/promised
use
as a park.”
(Walter
Memorandum,
p.
4.)
This document
was printed
on
recycled
paper.
364687.1
17
The
County
Board’s
consideration
of this
erroneous
conclusion
was
highly
prejudicial
because
it provided
a seemingly
compelling
basis
to deny
that criteria
2 and
3
were met.
However,
as demonstrated
by the
evidence,
the
Facility
would
in
no
way
conflict
with
the
proposed
end
use
for the
Woodland
Landfill.
E.
The
Walter
Memorandum
Improperly
Considered
Information
Outside
the
Record
In addition
to erroneous
facts,
the
Walter
Memorandum
presented
evidence
dehors
the
record.
These
extra-record
matters
are described
below.
1.
Criterion
6 - Inbound
Collector
Trucks:
“South
Elgin,
Wayne
and
St. Charles
will quickly
become
accustomed
to no
more
garbage
trucks.”
“Inbound
collector
trucks
will
prevent
reduction
of the
traffic
burden,
which
was
to occur
with
the closure.”
(Walter
Memorandum,
p.
1.)
There
is
no evidence
to
support
the
claim
that
these
municipalities
will
become
“accustomed
to
no more
garbage
trucks.”
(Walter
Memorandum,
p.
1.) The
comments
filed
by
the
municipalities
do not
even
suggest,
much
less establish,
that they
look
forward
to no
more
garbage
trucks.
Indeed,
even
if
the
Facility
is
never
built,
garbage
trucks
will remain
a part
of
the traffic
volume
in
these
communities
so long
as
waste
is
generated.
(Petitioner’s Brief,
p.
21.)
2.
Criterion
6 - Over-Burdened
Bridges:
“24
of
29 townships
are
entirely
or
partially
west
of
the river,
requiring
hundreds
of truck
per
day
to
cross our
already
over-burdened
bridges.
This
site fails
to reasonably
minimize
impact
on
existing
traffic
as
required
in Criteria
6.”
(Walter
Memorandum,
p.
3.)
The
County
claims
that
“it is
reasonable
and
logical
to conclude
that additional
trucks
will
be coming
into
the
site
from
the proposed
service
area,
including
those
portions
of the
service
area
west
of
the
Fox River.”
(County
Response
Brief,
p.
24.)
While
additional
trucks
This
document
was printed
on recycled
paper.
364687.1
18
will
be
going
into the
site,
it does
not
support
the
contention
that
the
Facility
will
require
“hundreds
of
truck
(sic)
per
day to
cross our
already
over-burdened
bridges.”
(Walter
Memorandum,
p.
3.)
There
was no
evidence
provided
that
demonstrated
that
the
existing
bridges
that
cross
the
river are
“over-burdened.”
Contrary
to the
County’s
argument,
“maps
and
diagrams”
which
show
the
location
of the
Fox River
relative
to
the
Facility
do not
constitute
evidence
supporting
these
statements.
No
such
evidence
exists.
Further,
during
the
November
19, 2002
County
Board
meeting,
the
Hearing
Officer
directed
the County
Board
that
during
its deliberations,
it could
not consider
“wear
and
tear on
roads”
or “whether
the
roads
are falling
apart,”
but
had
to make
its
decisions
based
on “existing
traffic
flows.”
(November
19,
2002
Tr. at
17.) Mr.
Walter
ignored
the
direction
of
the
Hearing
Officer
and
chose
to
include
this
information
from
outside
the
record
in
his Memorandum,
which
the
County
Board
adopted
as its
opinion
in
rendering
its
decision.
(County
Response
Brief,
p.
22.)
By
ignoring
the
Hearing
Officer’s
direction,
and
presenting
these
statements
which
were
not
contained
in
this record,
the
Walter
Memorandum
provided
allegations
of
fact both
significant
and
relevant
to criterion
6.
The
County
Board
adopted
the Walter
Memorandum
in
concluding
that
criterion
6 was
not
met.
3.
Criterion
6 - Rail
Lines:
“The
applicant
admitted
that they
gave no
consideration
to
the
use
of
a
rail line
located
near
the
property
that could
have
eliminated
the
need
for
hundreds
of
transfer
trailer
trips each
day.”
(Walter
Memorandum,
p.
3.)
In
this
statement,
the
Walter
Memorandum asserts
that
a
rail
line was
a practicably
available
alternative
that
could
have eliminated
hundreds
of transfer
trailer
trips
daily.
The
This document
was
printed
on
recycled
paper.
364687.1
19
assertion
is both
unsupported
and
false. Mr.
Miller
and
Mr. Hoekstra
testified
that
they were
not
aware of
the
proposed
use
of a rail line
to
handle
garbage
at the Facility.
(9/26/02
Tr.
at
62;
9/30/02
Tr. at 42.)
No evidence
was
presented
as to
whether
the
rail
line was
suitable
for
the
use
of waste
transfer,
or
if
it was
even
available
for
use
by
WMJI
to
transfer waste.
There
was
no
evidence
adduced
to
establish
that
the use of
a
rail
line
was
a potential
or possible
alternative
for
the
Facility.
Mr.
Walter
created
his
own
evidence
claiming
that
“the
use of
a
rail
line located
near
the
property
that could
have
eliminated
the need
for hundreds
of
transfer
trailer
trips
each
day.”
(Walter
Memorandum,
p.
3.) The
County
Board’s
consideration
of this
extra-record
evidence
relating
to
criterion
6 was
fundamentally
unfair.
4.
Criteria
2
and
3
- Comprehensive
Plan
of South Elgin:
“The
Comprehensive
Plan
of
South
Elgin
relied upon
promises
made
by
Waste
Management
and
conditions
imposed
by
this Board
in
1988.
This
Plan
was ignored
as
it applies
to
Criteria
2 and
Criteria
3.” (Walter
Memorandum,
p.
3.)
The
statement
that
the
Comprehensive
Plan
of South
Elgin
was
ignored
is incorrect.
Mr.
Lannert
specifically
testified
that
he considered
the
Comprehensive
Plan
in his
analysis.
(9/17/02
Tr. at 59,
87-102;
Application
at
Criterion
3, Lannert
Report,
p.
12.)
The County
attempts
to
justify
the
inaccuracy
by arguing
credibility.
The
County
alleges
that “to
what
extent Mr.
Lannert
considered
the
South
Elgin
comprehensive
plan is
a matter
of
credibility.”
(County
Response
Brief,
p.
25.)
However,
Mr.
Lannert’s
credibility
was neither
challenged
nor
impeached.
He testified
that
the Facility
is compatible
with
the
character
of the
surrounding
area
because
of the existing
industrial
and business
uses
adjacent
to the
site, either
zoned
industrial
or B-3,
that the
agricultural
and
open
space
uses
are predominant
in
the study
area,
and
that
screenings
and buffers
will
enhance
compatibility.
(Petitioner’s
Brief,
p.
29;
This
document
was
printed on
recycled
paper.
364687.1
20
9/17/02
Tr. at
56,
57.)
More
specifically,
he
testified
that the
Facility
is surrounded
by
existing
industrial
uses,
including
a
concrete
pipe
plant
to
the south,
the
closed
Tn-County
Landfill,
the
closed
Elgin
Landfill,
the railroad
tracks
embankment,
and
an
asphalt
paving
and
contractor’s
yard.
(Petitioner’s
Brief,
p.
29;
9/17/02
Tr.
at 59,
73,
101, 102.)
He stated
that
the
9-acre
parcel
for
the Facility
is
“very
appropriate
in
the context
of
this
portion
of this
land”
and
that
it is
“a
very
similar,
if
not upgradeable
use
in
this location.”
(9/17/02
Tr.
at 102.)
Mr.
Lannert’s
testimony
and
report
demonstrate
that
he
evaluated
the
Kane
County
20/20
Plan
and
the
South
Elgin
Comprehensive
Plan.
(Petitioner’s
Brief,
p.
30;
9/17/02
Tr.
at 59;
Application
at
Criterion
3,
Lannert
Report,
p.
12.)
The
Facility
is
consistent
with
those
plans
and
the
open
space
designations
for
the
Woodland
Landfill
area,
because
of
the
mixture
of
uses
in
the
surrounding area,
including
“industrial
uses,
the
concrete
pipe
plant
to
the south,
those
uses
on
the
corner,
have
been
there
historically.
. . for
a long
time.
And
I
think
that
the
open
space
uses
with
the
Prairie
Path
and
with
the
reclaimed
end
use
of the
landfill..
.is the
reason
that
it
is
compatible.” (Petitioner’s
Brief,
p.
30;
9/17/02
Tr.
at 59.)
Contrary
to
the County’s
claim,
Mr. Lannert
did
not
testify
that
“a
leaking
Superfund
site
is
a
compatible
use
with
open
space/recreational
use,
because
it is
‘open
space.”
(County
Response Brief,
p.
25.)
He
testified
that
the adjacent
Superfund site,
(former
Tn-County
Landfill)
is
“open
space.”
That
is all
the
question
posed
of him
required.
(09/17/02
Tr. at
137,
138.)
In
no
way
does
the
evidence
suggest
that
Mr.
Lannert’s
study
was
“surficial
and
did
not
take
into
account
actual
or
planned
uses,
only
‘spaces.”
(County
Response
Brief,
p.
25.)
The
evidence demonstrates
the
opposite.
The
assertion
that
the Comprehensive
Plan
was
ignored
as it
applies
to criteria
2 and
3
is
a
statement
that
WMII
ignored
the
“promises
made...
and
conditions
imposed
by
this
Board
in
This
document
t’as printed
on
recycled
paper.
364687.1
21
1988.”
(Walter
Memorandum,
p.
3.)
The
argument
is that
since
WIvflI
ignored
its alleged
promises
and
the
conditions
of
Kane
County’s
1988
siting
approval
for
the
Woodland
Landfill,
WMII
did
not
satisfy
criteria
2
and
3. The
argument,
however,
is
improper
because
whether
the
alleged
promises
were
breached
or
the conditions
violated
were
not
issues
that
could
appropriately
be
considered
here.
(9/24/02
Tr.
at 6;
11/19/02
Tr.
at 14.)
The County
argued
that
the
Hearing
Officer
held
that evidence
concerning
the
1988
siting
approval
for
the
Woodland
Landfill
was
admissible
in
this
siting
proceeding.
(County
Response
Brief,
pp.
25, 26.)
In
fact,
the
Hearing
Officer
precluded
any
such
evidence
with the
exception
of
evidence
relating
to
the
land
and
land
use (including
the
Woodland
Landfill)
around
the
Facility.
(9/19/02
Tr.
at
15;
9/24/02
Tr. at
6;
11/19/02
Tr.
at 14.)
Specifically,
the
Hearing
Officer
instructed
the
County
Board:
“One
of the
things
that
was
talked
about
during
these
hearings
at some
length
was
the
location
of
this facility
and
whether
or not
this
particular
facility
somehow
is not in
compliance
with
a letter
that
was
written
in
1988 and
a County
resolution
with respect
to
what
would
happen
to
the
Woodland
Landfill
when it
closed.
I’m
going
to tell
you
that
that
issue is
not an
issue
that
I
believe
is
to be decided
by you.
There
is
already
a
court
case
that
has
been filed
with
respect
to that.
I
do believe
you
can
consider
in connection
with
this
its
location
in
the
vicinity
of
the
landfill,
but
whether
or not that
resolution
was violated
is
not a
consideration
for
this
body.”
(November
19,
2002
Tr.
at 14.)
The very
content
and
assertions
of the
Walter
Memorandum
disregarded
this
instruction
of the Hearing
Officer
by including
reference
to
the 1988
siting
conditions
for Woodland
Landfill
and the
South
Elgin
Comprehensive
Plan.
The
County
Board
rendered
its
decision
on
criteria
2 and
3,
based
on
information
specJlcally
instructed
by the
Hearing
Officer
not
to
be
considered. (County
Response
Brief,
p.
22.) The
County
Board’s
consideration
of
this untrue,
This document
was printed
on
recycled
paper.
364687.1
22
irrelevant
and
extra-record
evidence
in denying
criteria 2 and
3 was improper
and
fundamentally
unfair.
5.
Criteria 2 and
3 - Request
for
Relief:
“We are
being asked
to
relieve
Waste Management
of
the
obligations
already agreed
to and imposed
upon
them
by
this Board.”
(Walter
Memorandum,
p.
4.)
At
no
time during
these proceedings
did WMII ever
request
to be
relieved of any
obligation
imposed
upon
them by the
County
Board. Not only
is this statement
entirely
unsupported
and false, it is
inflammatory
and highly prejudicial.
It suggests
that WMII
is
attempting
to
avoid or skirt legal
obligations imposed
upon
it. It implies
that criteria 2 and
3
cannot be satisfied
unless the County
Board
relieves
WMII
of these alleged legal
obligations.
These
statements provided
an unfounded
and highly
improper
basis on which the
County
Board
decided
to
deny criteria
2 and
3.
F.
WMII
Complied with
Section 39.2(c)
The Village
contends
that WMII
did not comply
with
Section
39.2(c) of the Act
by
failing to
submit (i) the
December 1993 Significant
Modification
Permit
Application
prepared
for the Woodland
Landfill (“Sig.
Mod. Permit
Application”);
and (ii)
Illinois Environmental
Protection
Agency (“Agency”)
documents
demonstrating
Woodland
Landfill’s compliance
with
the standards
for Surface
Water Drainage
with its Application.
Those
documents were
filed
with
the
Agency
in connection
with the
Woodland Landfill,
not
the proposed
Woodland
Transfer
Facility. The plain language
of Section
3 9.2(c)
requires local siting
applications to
include:
‘(i)
the substance
of the applicant’s
proposal and (ii)
all documents,
if
any, submitted
as of that
date
to the
Agency pertaining
to
the proposed
facility, except
as to trade
secrets as determined
under
This
document
t’as printed
on
recycled
paper.
364687.1
23
Section
7.1 of this Act.’t
415 ILCS
5/39.2(c) (Emphasis
added.) Because
the Sig.
Mod.
Permit
Application
and
the
documents demonstrating
Woodland
Landfill’s
compliance
with
the
standards
for
Surface
Water Drainage
relate
to the Woodland
Landfill,
and
therefore,
do not
pertain
to
the proposed
Woodland
Transfer Facility,
WMII was not
required under
Section
3 9.2(c)
of the Act to
include
them
with its Application.
Even if
WMII were required
to include
those documents
with its Application,
Section
3 9.2(c) of
the
Act
is a procedural,
not a jurisdictional,
requirement
of the Act.
Tate v.
Pollution
Control Board,
188 Ill. App.
3d 994, 1016-17,
544 N.E.2d
1176, 1191(4th Dist.
1989).
Furthermore,
compliance
with
Section 39.2(c)
of the Act
is
not one of the criteria
enumerated
in
Section 3 9.2(a)
of the Act that must
be met in
order to obtain local
siting
approval.
As
such,
failure
to include documents
previously
submitted
to the Agency
pertaining to the
proposed
facility
does not divest
the local
governing
body of its jurisdiction
to
consider
an
application,
nor
does it
force the conclusion,
as suggested
by the Village,
that the
Applicant
“could
not possibly
have satisfied
the statutory criteria.”
(Amicus
Brief,
p.
4.)
The Village’s claim that
WMII’s failure
to comply
with
Section
3
9.2(c)
prejudiced
the
public
and
the
County by preventing
any analysis
of the effects
of the Facility
on the
landfill’s
hydrology,
its stormwater management
system,
or any of
the other safety issues
of the landfill
is
completely
lacking
in merit.
In Tate,
certain
Agency documents
were not attached
to the
application;
however,
they
were
known to
the petitioners
in the early
stages
of the
proceedings,
were on file with the
Agency and
were public record. Id.,
at 1017, 544
N.E.2d at
1191. The
court
found
that, because
the public
had
an opportunity
to review
the documents
in
advance
of
the local hearing,
the petitioners
could not
demonstrate any
prejudice
as
a result of the
applicant’s
non-compliance
with Section
39.2(c)
of the Act. RI. Therefore,
the
court
held that “any
error
This
document was
printed
on recycled
paper.
364687.1
24
which may
have occurred
[as
a result
of the
applicant’s
failure
to file
the Agency
documents
with
the
application]
is
harmless
at
best.”
Id.
In
this case,
the
Sig. Mod
Permit
Application
and
the
other
documents
were
plainly
referenced
in WMII’s
application,
in
accordance
with
Section
11-102(d)
of
the Ordinance’,
and,
as the Village
concedes
in its
Amicus
Curiae
Brief,
they were
“obviously”
on
file
with
the
Agency
and
available
for
public access.
(Amicus
Brief,
pp.
2-3.)
Therefore,
the
Village’s
argument
that the
public
and
the
County were
deprived
of
the opportunity
to evaluate
that
information
against
the
statutory
criteria
is
disingenuous,
and should
be
rejected
as meritless.
G.
The
County
Board’s
Failure to
Find That
Criteria
2,
3, 6 and
8 Were
Met
is
Against
the
Manifest
Weight
of the
Evidence
The
County
alleges that
WMII
has
misstated
the
findings
of the
Hearing
Officer.
(County
Response
Brief,
p.
29.)
This
is
false. The
conclusion
of the
Hearing
Officer
was
that
each criterion
was
met subject
to his proposed
conditions
(Findings,
pp.
13-35),
which
was
consistent
with
his instructions.
He stated
that
the County
Board
could
“approve
it (the
Application)
as
filed, you
can
deny
it,
or
you
can approve
it
with
the
conditions
that
you
set
out.”
(November
19,
2002
Tr.
at 7.) At
the December
10, 2002
County
Board
meeting,
Mr.
Dale
Hoekstra
gave
public
comment
that
WMII
would
accept
the
conditions
imposed
by
the County
Board.
(C003
126.)
Section
11-102(d) of
the
Ordinance
provides:
(d)
Content Of
Petitions:
The
determination
of
the
quality and
quantity
of
information to
be included
in a
petition
is, ultimately,
the applicant’s
to make,
as
it is
the applicant’s
burden to demonstrate
that
the siting criteria
set
forth
in
section
39.2 of
the act are
met.
However,
for purposes
of this
article,
a petition
shall contain,
at
a minimum,
the
following
documents
and information
and,
to
the
extent
such documents
and
information
are
based on,
in whole or
in
part,
other
information
or data, citations
to
the primary
source
shall
be
provided,
so
to reasonably
enable a member
of
the public
to locate
such
information.
(Emphasis
added.)
This
document
was
printed
on re cycled
paper.
364687.1
25
1.
The County
Board’s Failure
to Find
That Criterion
2
Was
Met
Is
Against
The Manifest
Weight
of
The
Evidence
The County
seeks to support
its failure
to find
that criterion
2 was
satisfied
by
referring
to
testimony
provided
by Mr.
Gary Deigan concerning
his review
of the Facility.
(County
Response
Brief,
pp.
3
1-35.)
However, this testimony
did not
establish
that
the
design
of
the
Facility was
flawed
from
a public
safety
standpoint,
that its location presented
any threat
to the
public
health or safety, or
that its
proposed
operation
posed any unacceptable
risk to
the
public
health,
safety and welfare.
Industrial
Fuels, 592
N.E.2d
at 157. Instead,
the testimony
merely
offered
the observations
and
concerns
of an environmental
consultant who
lacked
experience
in
the design and
operation
of waste transfer
stations.
2
Mr.
Deigan’
s
concerns
were speculative
and failed
to demonstrate
how a
particular
design or operating
feature increased
a risk of
harm
to the public.
For
example,
he noted
that
no
insulation
for
noise attenuation
was proposed,
but did not
evaluate
whether
off-site
noise
impact
would even occur. (9/24/02
Tr. at
77-79;
9/26/02
Tr. at 18.) He observed
that the
air
ventilation
and carbon monoxide
(CO) monitoring
systems were
presented in the
conceptual
stage
of design,
and then surmised that
the
system
installed
would
“short-circuit.” (9/26/02
Tr. at
24-25;
10/10/02 Tr. at 50-55.)
He
complained
about WMII’s
failure to
accommodate
natural
illumination in its lighting
plan, speculating
that
drivers
will experience
difficulty
in
backing
their trucks
into the Facility with
the change from
natural to artificial
light.
(9/24/02
Tr. at
82-
84.)
His speculation
is baseless
as the lighting
plan
was designed
by an electrical
engineer.
(9/24/02
Tr. at 83-84.) Finally,
he raised
concerns about WMII’s
housekeeping
practices
on the
2
Mr. Deigan was
not a licensed professional
engineer, and
stated that he did not
oppose the Application.
(10/10/02
Tr. at 5, 8-10.)
The Hearing Officer
made no mention
of Mr. Deigan’s
testimony or report in
his Findings.
This
document was printed
on recycled paper.
364687.1
26
basis of
his “windshield”
survey
of
two of
WMII’s
facilities
that are
fundamentally
different
in
size and
scope
than
the
proposed
transfer
station.
(10/10/02
Tr. at
27-41.)
For
all of
his observations
and
concerns, Mr.
Deigan
acknowledged
that
there is
no
specific
set of government
regulations
that
apply
to
waste
transfer
stations. (10/10/02
Tr. at 24-
26.)
Thus,
his concerns
were
conjectural
and
he was unable
to establish
that the
design,
location
or operation
of the
Facility
ignored
or violated
any governmental
regulations.
Industrial
Fuels,
592
N.E.2d at
157.
The County
also
claims that
WMII’s
alleged failure
to
comply with
other legal
requirements
is sufficient
reason
to
deny criterion
2. Specifically,
the
County
asserts
that
WMII
was
not compliant
with the
Kane County
Stormwater
Ordinance
or
with the wetland
provisions
of the
Kane County
Solid
Waste Management
Ordinance.
(County
Response
Brief,
p.
32.)
The
assertion
is specious.
The undisputed
evidence was
that WMII
complied
with
the Kane
County
Stormwater
Ordinance.
(9/24/02
Tr. at
104-106.)
In addition,
there are
no wetlands
on the
Facility. (Application
at Criterion
2,
p.
2-2.)
WMII
must comply
with
any local ordinances
that
apply
to
the
construction
of the Facility.
It
will
do
so.
(9/19/02
Tr. at 135;
9/24/02
Tr. at
62;
9/26/02 Tr.
at 14.) However,
compliance
with
such ordinances
is
necessary
at the
time any
permits or
approvals are
required.
Demonstration
of compliance
is
not
necessary
at the siting
stage. Hence,
such
compliance
is
not properly
made a
condition
of siting
approval.
There
were
no
opinions
presented
that
the
design, location
or proposed
operation
of the
Facility
did not protect
the public
health,
safety and
welfare.
The
County
claims
that there
is
evidence
in this
record
to
supports
its conclusion,
but that
evidence
is irrelevant,
speculative
or
not probative.
This document
was
printed
on
recycled
paper.
364687.1
27
There
is
no evidence indicating
that the design,
location
or proposed
operation of the
Facility
were
flawed
from a public health
standpoint,
presented
any unacceptable
risk to public
safety,
or ignored or
violated any applicable
governmental
regulation.
Hence,
the
failure
to find
criterion
2 met
is
against the manifest
weight of the
evidence.
Industrial
Fuels,
592 N.E.2d
at
157.
2.
The County
Board’s
Failure to Find That
Criterion
3 Was Met
Is
Against The
Manifest
Weight
of
The
Evidence
The
County argues that
its failure
to
find that criterion
3 was met was
justified
by
the
fact
that WMII proposed
no berms
on the
west
and north sides of the
Facility.
(County
Response
Brief,
pp.
36-37.)
The
argument
is groundless.
Criterion
3 requires WMII
to do what is reasonably
feasible
to minimize
incompatibility.
File
v. D&L Landfill,
219 Ill. App.
3d 897, 579 N.E.
2d
1228 (5th Dist.
1991). It does
not
require
that
WMII take all
actions necessary
to
guarantee
that
no impact
or incompatibility
occurs.
See Clutts v. Beasley,
185 Ill.
App. 3d 543, 541 N.E.
2d
844,
846
(5th Dist. 1989).
Indeed,
where
as here, the
undisputed
evidence is that the Facility
is
compatible
with
the
surrounding
area,
there is
no need to propose
measures
to minimize
incompatibility.
Tate
v
Pollution Control
Board,
188 Ill.App.3d 994,
544 N.E.2d 1176,
1197
(4th
Dist. 1989).
Mr.
Lannert
stated
that notwithstanding
the Facility’s
compatibility
with the character
of
the
surrounding area, WMII
proposed
berms and screening
along
the east
and south sides
of
the
Facility.
(9/17/02 Tr.
at 55-57.) He explained
why
benns and screening
were
not proposed
on
the west and north
sides of the Facility.
(9/17/02
Tr. at 99-101.)
No one
contradicted
or refuted
this testimony.
This document
was printed on recycledpaper.
364687.1
28
In
an
attempt
to
argue
that there
is no
evidence
to
support Petitioner’s
claim
of
compatibility,
the
County
attempts
in a footnote
to
discredit the
testimony
of Mr.
Lannert.
(County
Response
Brief,
p.
22.)
The
County
contends
that
despite the
fact
that
Mr. Lannert
was
the
only
witness to
testify
on
Criterion
3, the
County
Board
could weigh
his testimony
in
their
decision
and find him
not credible
based
on one
statement,
taken
out of
context,
that Mr.
Lannert
testified
that
“he
believes
a leaking
Superfund
space is a compatible
use
with
open/recreational
space.”
(County
Response
Brief,
p.
22.)
This
is
wrong.
The
accurate
exchange is
as follows:
Q:
The
only other
question
that I have
is, you
had
stated
earlier that
you categorized
the
Tn-County
facility
as open
space;
is that
correct?
A:
That’s
correct.
Q:
So
in
your expert
opinion,
you
categorize
a leaking
superfund
landfill
as
open
space;
is
that
your
opinion?
A:
Yes
MR.
MORAN:
Objection.
BY
THE WITNESS:
A:
It
is open.
HEARING
OFFICER
KTNNALLY:
I want to
hear the answer.
It’s
open space?
THE
WITNESS:
It is
open
space.
(09/17/02
Tr.
at
137-138.)
Nowhere did
Mr. Lannert
testify
that “he believes
a
leaking
Superfund
space
is
a
compatible
use
with open/recreational
space.”
He simply
states
that it is “open
space.”
Further,
a review of
Lamiert
Exhibit
1, Zoning
/Adjacent
Land
Use, shows
the
adjacent
Tn-County
Landfill as
an open
space.
(Application
at
Criterion 3,
Lannert
Report,
Exhibit
1.) There
is
no
other way
to
answer this
question
- the
Tn-County
Landfill
is
open space.
To discredit
Mr.
Lannert’s
testimony
and suggest
his lack
of
credibility
by
stating the
truth is baseless.
This
document
was
printed
on recycled
paper.
364687.1
29
The undisputed evidence
established
that WMII
will
do what
is reasonably
feasible to
minimize
any impact, and the
County Board’s
rejection
of
criterion
3 is against the
manifest
weight
of the evidence.
3.
The
County Board’s
Failure to Find That
Criterion
6 Was Met
Is Against
The Manifest
Weight
of The Evidence
The
County
Board found
that Criterion
6
was
not met on the
grounds
that
“all
existing
routes
have been shown
to
be
inadequate
by
expert
testimony.”
(Walter Memorandum,
p.2.)
As
previously
discussed,
this
is
a
legally
insufficient
basis on which
to deny Criterion
6. (See
supra,
pp.8-9.) In addition,
the statement
is against
the
manifest
weight
of
the
evidence.
Mr.
Miller and
Mr. Coulter
were the only expert
witnesses to
testify regarding
Criterion
6.
It is true that
they
did not
agree that the South
Route
preferred
by Mr.
Miller was
the
appropriate
route
to satisfy
Criterion
6.
However,
it is
equally true that
their testimony
did not
conclude
that all existing routes
were inadequate.
Mr. Miller
agreed
with
Mr.
Coulter
that the North Route
was
suitable.
(10/01/02
Tr.
at
101, 104, 118.)
While Mr.
Miller
preferred
the South Route
because
it
presented
the least
impact
on existing traffic
flows, he
at
no point testified that
the North Route
did not
minimize
impact
on
existing traffic or
that the North
Route failed
to
satisfy
Criterion
6.
The experts
did not
disagree
that
the
North Route was a
suitable
route.
Accordingly,
all
routes
were
not
shown to be inadequate,
and
the County’s finding
on Criterion
6
is
against
the
manifest
weight of the evidence.
This document
was
printed on recycledpaper.
364687.1
30
4.
The
County
Board’s
Failure
to Find
That
Criterion
8 Was
Met Is Against
The
Manifest
Weight
of The
Evidence
Contrary
to
the
County’s
claim,
WIvIJI
does
not
seek
to establish
a rule that
limits
the
consistency
of
the
Solid
Waste
Management
Plan
to challenge
the County’s
authority
with
respect
to the Plan.
(County
Response
Brief,
p.
44.)
Consistency
with
the
County
Solid
Waste
Management
Plan
is
shown
by demonstrating
general
agreement
or harmony
with
the
purposes
and
principles
of the
Plan.
Strict
compliance
with each
provision
of the
Plan
is not necessary.
City
of Geneva
v.
Waste Management
of
Illinois,
Inc.,
No.
PCB
94-58,
slip
op.
at 22
(P.C.B. July
21, 1994).
Ms.
Sheryl
Smith
testified
that the
Facility
was
consistent
with
the Plan.
These
was
no
testimony
or
evidence
that
rebutted
Ms. Smith.
The
fact that
information
about
traffic
characteristics
for
future
growth
and
accident
histories
at key
intersections
was
not provided
does
not
make the Facility
inconsistent
with
the
purposes
and
principles
of
the
Plan.
This
conclusion
is
especially
true
where,
as here,
the
information
requested
is
itself
inconsistent
with
or irrelevant
to the
statutory
criteria.
5.
Strict
Compliance
with
the
Kane
County
Siting
Ordinance
Is Not
Required
to
Satisfy
the
Statutory
Criteria
The County
and
the
Village
incorrectly
state that
WMII
is
challenging
the
Ordinance.
(County
Response
Brief,
pp.
45-46.)
WivilI
is
simply
asserting
that
strict compliance
with
every
provision
of
the Ordinance
is
not required
in
order to
demonstrate
compliance
with
the
statutory
criteria.
Strict
compliance
with
the
Ordinance
is the
improper
standard
that the Walter
Memorandum
persuaded
the County
Board to
apply.
The
Walter
Memorandum
stated that
the
Application
was
defective
because
WMII
failed
to
meet
two
requirements
in
the Ordinance.
(Walter
Memorandum,
p.
4.)
However,
compliance
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has
printed
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recycled
paper.
364687.1
31
with the Ordinance
is not
required
to
meet the criteria,
particularly where,
as here, the
relevant
provisions of
the Ordinance
are
inconsistent
with the Act.
See Waste Management
of
Illinois
v.
Illinois Pollution
Control
Board,
175
Ill. App. 3d 1023,
1035-36, 530 N.E.2d
682, 693
(2d
Dist.
1988)
(even
though local
authorities may
develop
their own siting procedures,
those
procedures
must
be consistent with
the Act and supplement,
rather
than supplant,
the Act’s
requirements);
Residents
Against
A Polluted Environment
v. County
of LaSalle,
No. PCB
96-243,
slip
op.
at
p.
18
(September 19,
1996) (local
ordinance provision
that
certain
documents filed
with the
county
board
could
be kept
confidential
was inconsistent with
the requirement
in
Section
39.2(c)
of the
Act
that such
documents
be made
available
to the public);
Daly
v. Village of
Robbins, Nos.
PCB
93-52,
93-54 (cons.), slip
op. at
p.
6
(July
1,
1993)
(compliance with
the local siting
ordinance
may
not be enforced
by
the
PCB, and
is an issue
of
fundamental fairness.)
As
for
the Village’s
argument
that
the public
was
prejudiced
by WMII’s
failure
to
make
the submissions
required
in the Ordinance, that
argument was
raised
by
the petitioners
and
rejected in Citizens
For
Controlled
Landfills v.
Laidlaw
Waste
Systems,
Inc.,
No. PCB
91-89
and
91-90
(September
26, 1991).
In Laidlaw Waste
Systems,
Inc., the applicant
did not meet
all
of the
requirements
of the local ordinance
governing
applications. Id.,
slip
op. at 4. The
petitioners argued
that the absence
of
the
required
information
prejudiced
the county
board,
the
public and the
opponents of the
application, in
that they were
deprived
of a fair
opportunity
to
prepare for the
public hearing
on the application,
prepare
adequate
written
comment on
the
application,
and to
address
all of the issues
in general. Id.,
slip
op. at
p.
7. The
Board
disagreed
and
held
that
it was sufficient
that
the
applicant
had
complied with all
the requirements
under
the
Act. Id.
This
document was printed
on
recycled
paper.
364687.1
32
Therefore,
the
governing
case
law
make
clear
that
an
applicant
is
not
required
to
strictly
comply
with
local
ordinance
requirements
in
order
to
obtain
local
siting
approval.
Such
a
mandate
would
run
counter
to
the
Act
in
cases,
like
the
instant
one,
where
certain
local
requirements
are
unreasonable
or
inconsistent
with
the
criteria
set
forth
in
Section
3
9.2(a)
of
the
Act.
Here,
the
County
and
the
Village
argue
that
denial
was
proper
because
WMII
did
not
strictly
comply
with
three
requirements
of
Section
11-102(d)
of
the
Ordinance,
namely:
(i)
Subsection
28(a)(4),
which
requested
a
study
and
a submission
of
information
from
WMII
on
all
property
within
a
5-mile
radius
of the
proposed
site;
(ii)
Subsection
31(d),
which
requested
a
proposal
from
WMII
of the
traffic
routes
or
plan
for
vehicles
entering
and
exiting
the
proposed
facility from
the
point
where
the
vehicles
enter and
exit
the
county
to
the
point
where
the
vehicles
exit
the
proposed
facility;
and
(iii)
Subsection
34,
which
requested
WMII to
demonstrate
that
its
application
is
consistent
with
the
Plan,
particularly
in this
case
with
the
Plan’s
request
that
WMII
develop
traffic
characteristics
of future
growth.
(County
Response
Brief,
pp.
16,
26-27,
36,
44-47;
Amicus
Brief,
pp.
4-8.) However,
WMII
was
not
required
to
comply with
those
Subsections
because
the
information
and
documentation
requested
therein
are
either
directly
inconsistent
with
the
statutory
criteria
or
so
unreasonable
or
irrelevant
to
the
criteria that
the
requests
are
inherently
inconsistent
with
the
Act.
First,
the
requirement
in
Subsection
28(a)(4)
that
WMII
conduct
a study
on
all
property
within a
5-mile
radius
of
the
proposed
site
is
clearly
inconsistent
with
criterion
3
of
Section
39.2(a) of the
Act,
which
contains
no
such
requirement
and
simply
requires
a
demonstration
that
“the
facility
is
located
so
as
to
minimize
incompatibility
with
the
character
of
the
surrounding
area
and
to
minimize
the
effect
on
the
value
of
the
surrounding
property.”
See
415
ILCS
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document
was
printed
on
recycled
paper.
364687.1
33
5/39.2(a)(iii).
(emphasis
added.)
“Surrounding”
does
not
include
an
area
miles
distant
from
the
Facility.
A local
requirement
that
applicants
survey
all
property
within
a 5-mile
radius
is
not
only
unreasonable,
but
also
unnecessary
to
make
a determination
as to
whether
an
applicant
has
satisfied
criterion
3.
Similarly,
the requirements
in
Subsection
31(d)
that
WMIJ
describe
the
traffic
routes
or plan
for vehicles
entering
and
exiting
Kane
County,
and
identify
all roadways
within
the
County
used
by
vehicles
to
access
the
site,
are
unreasonable
and
unrelated
to
any
of
the
criteria.
(Findings,
p.
24.)
Finally,
the
requirement
in Subsection
34
that
consistency
with
the
Plan
requires
that
WMII
develop
traffic
characteristics
of future
growth
is directly
inconsistent
with
criterion
6.
The
plain
language
of criterion
6
states
that
the
Act is
concerned
only
with
existing,
not
future,
traffic
flows.
Moreover,
criterion
8 simply
allows
counties
to
take their
solid
waste
management
plans
into
account
when
considering
siting
applications,
and
while
a local
siting
approval
must
be consistent
with
the
plan,
the
Act
does
not
state
that
approval
is
contingent
on
the
applicant
satisfying
all
of
the
plan’s
provisions.
Again,
a determination
by the
County
Board
that criterion
8 was
not
met
on
the
basis
that
WMII
did
not
satisfy
Subsection
34
was
unreasonable
and
inconsistent
with
the
Act.
The
County
Board’s
reliance
on
the
failure
of
strict
compliance
with
the
Ordinance
to
reject
criteria
3,
6 and
8
is
legally
improper
and
fundamentally
unfair.
Together
with
its
adoption
of
the
incorrect
legal
standards,
erroneous
facts
and
extra-record
evidence
contained
in
the Walter
Memorandum,
the
County
Board’s
reliance
on
the
lack
of
compliance
with
the
Ordinance
rendered
its
siting
resolution
a legislative
decision,
not
an
adjudicative
one.
This docwnent
was
printed
on
recycled
paper.
364687.1
34
CONCLUSION
For
all
reasons
set
forth
above
and
in its
opening
memorandum,
WMII
respectfully
requests
that
the
Kane
County
decision
denying
site
location
approval
for
the
Woodland
Transfer
Facility
be
reversed.
Respectfully
submitted,
E7LZ01Ez
Donald
J. Moran
One
of
its,
2
orneys
PEDERSEN
& HOUPT
161
North
Clark
Street,
Suite
3100
Chicago,
Illinois
60601
Telephone:
312/641-6888
This document
was
printed
on recycled
paper.
364687.1
35