ILLINOIS POLLUTION CONTROL BOARD.

RECE&VtD

CLERKS ~

CITY OFKANKAKEE,

JUN

2 2003

Petitioner

STATE OF ILLINOIS

PCB

03-125

PollutiOn

Control Board

Vs.

(Third Party Pollution Control

Facility Siting Appeal)

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS,INC.

Respondents

MERLIN KARLOCK,

Petitioner

PCB 03-133

Vs.

(Third Partu Pollution Control

Facility Siting Appeal

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE,

and

WASTE

MANAGEMENT OF ILLINOIS,INC.

Respondents

MICHAEL WATSON

Petitioner

PCB 03-134

Vs.

(Third Party Pollution Conttrol

Facility)

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS ,INC.

Respondents

KEITH RUNYON

Petitioner

PCB 03-135

Vs.

Third Party Pollution Control Facility

Siting Appeal

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS

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TABLE OF CONTENTS

1. Procedural History

1

2. Statement of Fact Relevant to Applicant’s Failure to Comply With The

County Solid Waste Management Plan

2

3. Requirements of the Solid Waste Management Plan Ignored By

the Applicant

3

4.

Applicant Failed To Comply With Plan Condition Prohibiting Siting A Landfill

Above or Near a Groundwater Recharge Zone or a Heavily Used Water Supply

Aquifer

S

S. Norris Testimony That Proposed Landfill is to be Built Over a Heavily

Used Water Supply Aquifer

7

6. Conclusion that Criterion S Was Not Met on Aquifer Condition

9

7. Applicants Failure to Comply With Solid Waste Management Plan Condition

Requiring Public Involvement From Initial Stages ofthe Landfill Process

Inciuding Site Selection

9

8. Conclusion That Applicant Failed to Comply With Plan Condition

Requiring Public Involvement Including Site Selection, Criterion 8 Violation... 10

9. Applicant’s Failure to Comply With Plan Condition Requiring a

Valid Host Fee Agreement be Established Before Granting Siting

Approval

15

10. Conclusion That Absent A Valid Host Fee Agreement, Appliccation Does Not

Meet Criterion 8 Standard of Plan Consistency

20

11. Applicant’ Failure to Comply With Plan Condition Requiring an

Independently Prepared Property Value Guarantee Program

20

12. Summary Conclusion

22

13. Procedural Issue

23

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1 BRIEF IN SUPPORT OF KANKAKEE COUNTY RESIDENT AND PETITIONER

KEITH RUNYON’S THIRD PARTY APPEAL

Petitioner Keith Runyon ,resident of Kankakee County, represented by himself,

hereby submits this brief in support of his third party appeal of the January 31, 2003

decision (“Decision”) of the County ofKankakee, Illinois, Board ofthe County of

Kankakee (“County”) granting application ofWaste Management of Illinois, Inc. and

Kankakee Landfill (Kankakee Recycling and Disposal Facility) and for siting approval of

a new pollution control facility.

PROCEDURAL HISTORY

On March 29, 2002 Waste Management of Illinois filed an Application for a local

siting approval with the County of Kankakee pursuant to Section 39.2 of the Illinois

Environmental Protection Act for a new 302 acre sanitary landfill on a property with a

land mass of 664 acres located in Otto Township, at

6259

South U.S. Route

45-52.

On

July 22, 2002 a Sitng Hearing was convened and quickly terminated as a result of a

notification deficiency. The Application was withdrawn.

On August 16, 2002, Waste Management of Illinois Inc. filed an application for local

siting approval with the County ofKankakee pursuant to Section 39.2 of the Illinois

Environmental Protection Act (“Act”) for a new 302 acre- sanitary landfill located in

Otto Township at the 6259 South Route

45-52A.

A public hearing on the on Siting

Application was conducted over 11 days from November 18, 2002 through December 6,

The hearing was conducted before the Kankakee County Regional Planning

Commission.

Waste Management presented eight witnesses who testified in support of the Siting

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Application. One witness testified in opposition. Seven objectors opposed siting the

facility. There were numerous parties who presented public comment during the

proceedings. The record was closed on January 6~’.2003. The Regional Planning

Commission forwarded its recommendation for siting to the County Board. On January

3l~.2003, the County Board rendered its decision granting Waste Management of

Illinois,Inc. local siting approval.

Keith Runyon filed his petition for a review of the Decision with the Illinois Pollution

Control Board (“Board”) on February 28, 2003 in accordance with Section 40.1(b) ofthe

Act. The Board consolidated petitions for review of the County’s

siting decision from the City of Kankakee, Merlin Karlock, Mike Watson and Keith

Runyon along with Waste Managements petition for review of County imposed siting

stipulations. Subsequently, Waste Management’s petition for review was severed from

the consolidated hearing by the Board and made a part of a separate hearing which was

conducted on May 6, 2003 after the conclusion of the consolidated hearing

ofpetitioners Watson, Karlock, Runyon and the City of Kankalcee.

1.

Statement ofFact Relevant to Applicants

Failure to Comply With the

County

Solid Waste Management

Plan.

This case is not about what the Applicant presented during the Siting Hearing it is

about what the Applicant failed to present which would demonstrate compliance with the

Kankakee County Solid Waste Management Plan. It is too late for the for the Applicant

to meet the conditions of compliance or to even suggest compliance beyond what is in the

hearing record.

7

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Respondent’s case is very simple and straight forward. Respondent will

highlight the hearing record to prove that the County and Waste Management, in their

rush to riches, chose to ignore the major conditions of the Kankakee County Solid Waste

Plan,: therefore, the application fails to comply with that plan. For this reason the Siting

should overturned on the basis that under Criterion VIII

.

the Applicant failed to

present a plan “Consistent with the requirements of the Local Solid Waste Disposal Act

or the Solid Waste Planning and Recycling Act. 2 Vol.1, pg. 7,2213471, txt 11-18-02

Ms. Sheryl Smith Presented Applicant’s testimony only on three conditions from this

comprehensive plan County Solid Waste Management Plan.

1)One landfill in the county,

2) A host fee agreement and,

3)landfill as the preferred method of waste disposal.

The host fee agreement provision is the only one relevant to respondent’s case.

Ms. Smith chose to exclude:

1)Required public involvement in the site selection process.

2)Prohibition of siting a landfill above or near a groundwater recharge tone or a heavily

used aquifer.

3)Existence of a valid host fee agreement prior to the siting hearing.

4)A Property Value Guarantee Program prepared by an independent entity acceptable to

the County.

1)No siting of a landfill on or near a major aquifer.2)public involvement in the

initial stages of

site

independent entity acceptable to the County.

3

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The plain language of the Solid Waste Management Plan establishes that the County

desired the aforementioned conditions to be met in the siting of a pollution control

facility. The previously cited provisions were included in the original County Solid

Waste Management Plan and lived as substantial plan provisions throughout the life of

the plan including amendments to the Kankakee Solid Waste Management Plan from

1993

,

1995, 2000, 2001, and March 20002. PC #16 c1837-c2204 pg 28, Michael

Watson’s Summary.

The continuing life of these requirements, through the several

amendments to the plan, prove the absolute intent of the these conditions.

1)Groundwater Hydrogeology. The protection of the groundwater is one of the

primary concerns of siting a landfill. A site should not be located above or near a

groundwater recharge zone or a heavily utilized water supply aquifer.

Pg 330 County

Solid Waste Management Plan.

2$~dditionalSiting Criteria. Public involvement is crucial throughout the landfill

site selection process and should be solicited from the initial stages of the process.

Through solid waste advisory committees, public hearings, etc., local criteria should be

developed to identify a site which reflects the concerns of the public.

Pg 334 County

Solid

Waste Management Plan.

3)Prior to granting of a siting approval pursuant to Section of 39.2 of the Illinois

Environmental Act, a host-benefit fee shall be established with the applicant.

Pg 344

County Solid Management Waste Plan.

“Any applicant requesting site location approval for a landfill expansion or a new

sanitary landfill within the County should agree, in a Host Community Agreement

negotiated with the County, to pay an appropriate host fee. The Host Community

Agreement should be signed prior to submitting a siting application pursuant to Section

39.2 of the Illinois Environment Protection Act. The host fee will be negotiated on a per

ton basis and the landfill must install a scale. The final host fee per ton will be escalated

4

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based on the appropriate Consumer Price Index for the Host County.

Pg. 354 County

Solid Waste Management Plan

4)The owner or operator of a proposed new landfill or landfill expansion in the County

shall be required to establish a Property Value Guarantee Program for all households

within a site specific distance from the proposed landfill site. Such Property Value

Guarantee Program to be prepared by an independent entity satisfactory to the County.

Paragraph 7, pg. 345. County Solid Waste Plan

The following is a review of the testimony, on the record, regarding each of the four

conditions of the Solid Waste Management Plan with which the Applicant comply.

aquifer.

l)Groundwater Hydrogeology. The protection of the groundwater is one

of

the

primary concerns of siting a landfill. A site should not be located above or near a

groundwater recharge zone or a heavily utilized water supply aquifer.

Pg 330 County

Solid Waste Management Plan.

The applicant not only failed to comply with this condition ofthe Solid Waste

Plan

but in fact supported this in testimony. Applicant’s attorney testified that “what we

found at the cite (sic) is between the base of this proposed expansion and the silurian

dolomite bedrock or the aquifer there is a significant layerof low permeability materials,

in situ materials meaning soils present at the site which will extend across the base of this

landfill and provide additional protection beneath the base of the landfill to that dolomite

aquifer”.

Tr. Vol. 3 221354 IlL txt 11-18-02, pg 7. lines 5-13

5

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Applicant’s attorney reinforced that the proposed site is in non-compliance with the

solid waste plan in his closing statement. He also purposely deceived the Regional

Planning Commission by misstating the content ofthe prohibition condition ofthe solid

waste plan. Mr Moran stated: “But the plan doesn’t prohibit the siting or location a

facility above any aquifer within the county because if that were the case, the plan would

have been simple because we’ve all heard silurian dolomite, which is an a major aquifer

in this county, underlies this entire county. There wouldn’t be a site ever located. The

plan would have had said no landfills in the county, none.”

Tr, Vol. 29 222445 XXIX. txt

12-06-02 pg. 131

Mr. Moran’s statement is an admission that the proposed site is above an aquifer. It

is also a distortion of the wording and intent of the solid waste plan which prohibits

siting a landfill above or near a groundwater recharge zone or a heavily utilized water

supply aquifer. Mr. Moran omitted the qualifier,

“

a heavily utilized water supply

aquifer” from his closing remarks. Distortion would obviously confuse an audience

which had not read the applicable condition of the Solid Waste Management Plan.

Proof that the proposed facility is located above a heavily used aquifer is clear and

abundant.

Applicant witness Nicodem used a regional report on aquifer patterns when profiling

the proposed site. The withess did not present site specific information. When asked if

he was aware that the State Geological Survey classified the proposed site “probably one

of the least desirable sites to have a landfill”? A. “No I’m not aware of that”.

Tr. Vol. 15

221390 XV. txt 11-22-02, pg

74. This fact was reiterated in petitioner Runyon’s closing

statement: “And no.2, the geological setting, the Illinois Geological Survey tells us

that’s one of the least suitable sites in the county forthe landfill, one of the very least

suitable.

Tr. Vol. 29222445 XXIX. in 12-06-02. pg. 107, lines 8-11.

The fact that the chosen site is one of the least sites desirable in the County for a

landfill was never challenged by the Applicant or the County.

6

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Witness Norris, testifying for objector Karlock stated authoritatively that the proposed

facility is located above a heavily used aquifer. “A. The Silurian bedrock, Silurian

dolomite aquifer certainly is the principal aquifer that’s used by most ofthe small

communities, most of the ranchers, the reported investigation that I cited discussing the

water balance issues gives a pretty good description of both community development,

individual wells as well as irrigation pumping, so it certainly is used for all of those. I

think there also is an alluvial aquifer in places along the major steams that may be used

but for the most part I think the highest percentage of the population are using the

Silurian dolomite aquifer.”

“Q,

Is the proposed landfill juxtaposed above or near that

regional aquifer”? A. “NO it is being constructed, installed directly over it”.

Tr. Vol. 24

221425 XXIV.

bct

12-03-02, lines 1-17

Lines 1-17

No testimony was presented by the Applicant or the County to refute this site location.

Witness Norris testified that the proposed facility is to be built above the major

aquifer that supplies the water to the Kankakee metropolitan area. He also opined that

the solid waste plan prohibition of placing a facility above the heavily used aquifer was a

legitimate prohibition. Mr. Norris testified that: “place, but it’s being installed over that

aquifer, and in fact over a local recharge area of that aquifer”.

Q.

Are you aware of

where the metropolitan area, Kankakee metropolitan including Bradley, Bourbonnais,

Kankakee and so on get their water”? A. “No I’m not”.

Q.”Would you be shocked to learn that is comes from the Kankakee River”? A.

“

It

would not surprise me. I would guess that that would be a more efficient way to get a

municipal water supply for that size of population

as opposed to using the Silurian

aquifer”?

Q.”Since the County solid waste management plan stated that a site should not be located

above or near a ground water recharge zone or a heavily utilized water supply aquifer,

would you think that that would be a legitimate prohibition for the solid waste plan

management plan to make”? A. “I think that there is a great deal of inherent wisdom in

7

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that kind ofa regulation”.

Tr. Vol. 24 221425 XXIV. lxi

12-03-02 pg

104 lines

18-22,

pg

105, lines 1-17

None of the preceding testimony was challenged by either the Applicant or the County.

Witness Norris reinforced that the aquifer above which the proposed facility is to be

located is a heavily used water supply aquifer under cross examination from objector

Murray: Mr. Murray:

Q.

The aquifer that we’re dealing with or the portion of the

aquifer that we’re dealing with in this particular subject, does this serve, you know a

great number of people? Or are there a large number of people, or is this heavily used”?

A, “Well, throughout this area, is the principal aquifer that people are using, with the

exception of municipal—the larger water supply may use the rivers for their water. And

actually, discharge from this aquifer provides a base load of those rivers. So, even in a

way,

they’re using this aquifer for water. It’s the principal aquifer of the area. This site

is surrounded on all sides by people using the aquifer. So I would say it is heavily used.”

Neither the Applicant nor the County refuted this evidence.

Tr. Vol. 25

221429

XXV. txt 12-04-02, Ppg. 66 14-22, Ppg. 67. lines

1-8.

Objecting attorneys agreed that the proposed facility is situated above a heavily used

aquifer and is non-compliant with the County Solid Waste Management Plan.:

Attorney Mueller stated that” have heard testimony that the solid waste Management

Plan precludes siting a landfill above an aquifer and above a recharge area. You have

heard that the facility is sited above and, in fact, immediately on top of a heavily used

Silurian dolomite aquifer.

Tr. Vol. 28221441 XKVIII.

txt

12-05-02, pg 169 line 17-2. pg.

169 line I

Attorney Power concluded that the Applicants application failed to meet the plan

consistency test. He stated: “Finally

,

with regard to the consistency with the County

Solid Waste Management Plan, ladies and gentlemen, it’s your plan. And I’m only going

to indicate one particular point that it fails totally, There was some question

,

again, from

S

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County Board Members as to whether or not this was a,, quote heavily used aquifer that

was under this proposed site. And the testimony was yes, it’s a heavily used aquifer.

Your plan, your own Waste Management Plan says no building ofa landfill on a heavily

used aquifer. That should be enough for the Petitioner to fail that issue. And I think it

has failed on that issue”.

Tr. Vol. 29 222445 XK!X. lxi 12-06-02 pgSS lineslo-22

Neither the Applicant nor the County challenged the evidence that proves the

proposed facility is located above a heavily used water supply aquifer.

Conclusion

The Preponderance ofthe evidence clearly proves

that

the Applicant has

proposed a facility

above

a heavily used

water supply aquifer

in violation

of the

County Solid Waste

Management Plan which prohibits such placement. Applicant

has failed to

meet

theconditions of Criterion VIII which requires the Application to

be “Consistent with the requirements of the Local Solid Waste Disposal Act or the

Solid Waste Planning and Recycling Act”. For

this

the proposed facility should be overturned.

llI)The Applicant failed to conduct and

facilitate

Plan.

Additional Siting Criteria, Public involvement is crucial throughout the landfill site

selection process and should be solicited from the initial stages of the process, Through

solid waste advisory committees, public hearings, etc. local criteria should identify a site

which reflects the concerns of the public.

Pg. 334 County Solid Waste Management Plan

In their rush to riches, the Applicant and the County chose to ignore this pillar

condition of the solid waste plan for the sake of expediency. Neither the Applicant nor

the County provided one shred of evidence that the actions required under this condition

were performed. In fact, the Applicant’s witnesses all stated that they had not involved

the public even after site selection was agreed to by Applicant and the County in secrecy

9

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and without public involvement. Not one witness admitted to any public involvement

even after the fact. Mr. Lannert did not offer evidence ofpublic involvement before or

after the site selection had been made secretly by the Applicant and the County; nor did

Mr. Corcoran, nor did Ms. Beaver MeGan, nor did Ms Smith, nor did Mr. Nicodem, nor

did Mr. Rubak, nor did Ms Underwood, nor did Mr. Addleman who repeatedly refused,

through his attorney, to testify.

Attorney Bleyer stressed Applicant’s failure to involve the public when he stated:

“We have a record here that shows that not only did all ofWaste’s paid consultants

neglect public involvement —and I said all. Remember they were asked—but Waste Itself

did not involve the public in the site selection process either”,

Tr. Vol. 29 222445 XXJX.

lxi 12-06-02, pg. 76, lines 7-11.

Mrs. Leland Milk, who lives near the proposed site confirmed that there was no public

involvement in he public comment: “We met Mr. Lee Adelman at a County Board

meeting for Waste Management. All conversations were told to us what was going on

but never asked for any input from neighbors or farmers”.

Tr. Vol. 24221425 XXIV. txt

12-03-02, pg24, lines 17-20

The Applicant chose not to include this mandatory condition in it’s review of the

Solid Waste Management Plan for plan consistency. Nonetheless, the plain language of

the plan carefully spells out the requirements under this condition. Attorney Bleyer

highlighted this: “Public Involvement is crucial throughout the landfill site selection

process and should be solicited from the initial stages of the process. Though solid waste

advisory committees, public hearings, et cetera, local criteria should be developed to

identify a site, which reflects the concerns ofthe public. Now you might think these

words came from a contemporary text on how to site a landfill, but, in fact, they do not.

These words are at page 334 of your very own Solid Waste Management Plan and are

listed as additional siting criteria that the applicant, not you, the Members of the County

Board, but that the Applicant must meet in order to comply with the Solid Waste

Management Plan. Take a look. Look it up.”

Tr. Vol. 29 222445 XXIX. lxi 12-06-0,pg.

73, lines 7-21

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Mr. Ron Greenburg, Otto Township Road Commission also confirmed that Waste

Management did not involve the public in the site selection process by his public

comment. Mr. Greenburg stated: “On Wednesday, June 19 of this year Mr. Lee

Adelman from Waste Management met with myself and Bob Marco, who is township

trustee. We had a meeting in our township garage just introducing himself, and he

explained about the expansion of the existing landfill, the proposed expansion of the

existing landfill.

Tr. Vol.21 221402 XKI,txt 11-26-02,pg. 12, lines 1-4

It is obvious that this meeting took place some two years after the Applicant and

County had agreed privately to expand at the present site. There was no public site

selection involvement evidenced here.

Waste Management conducted some informational activities to inform the public of

what it and the County had secretly agreed to do. This obviously is not public

involvement as required and defined in the County Waste Management Plan.

Attorney Bleyer stated clearly documents that there was no public involvement in

siting process; “We did hear Mr. Nicodem testify and suggest tht Mr. Addleman caused

a presentation, or perhaps even two, to be made to some members ofthe public for the

purpose of informing the public about the company’s intentions, Ladies and gentlemen,

please be clear on this point. Informing the public is not the same as involving the public

as involving the public. Public comment is not public involvement. Even if such public

information meetings did occur—And we have no evidence in this record that they did,

information did occur, there is absolutely no evidence in this application or the record

over the past few weeks regarding when such presentations took place, how notice of

them was given, where they were had, what the ground rules were and what materials

were made available. Most importantly, we do not know how the public’s involvement

in these meetings affected the site location or other issues or operation plans. Even

though the obligation to produce this evidence in the application is the sole responsibility

of the applicant, we tried our very best throughout these proceedings to make a record on

these matters since the application is absolutely silent as to this requirement of the Solid

11

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Waste Management Plan”.

Tr. Vol. 29 222445 XXIX. lxi

12-06-02, pg 76,

lines 12-21,

pg.77, lines 1-2

Attorney Bleyer warned of a last minute document or documents which might be

submitted by Waste Management, the purpose of which would be to attempt to

ameliorate this compliance failure on the part of the Applicant. Bleyer: “affidavits—I

tell you now, look for more affidavits from Mr. Moran and his witnesses to creep into the

record in the form of public comment. And when they magically appear, please bear in

mind

,

as to all such affidavits, neither you, norI

,

norany member ofthe public will be

able to question their authenticity. Any uncertainties or doubts that may come about

over the course ofthese proceedings can and probably will. There will be an attempt to

explain them away. It was just some simple hearing”.

Tr. Vol.29222445 XXIX. txt

12-

06-02 pg. 87, lines 20-22

,

pg.

88, lines 1-7.

Like clockwork, as predicted, Lee Addleman ofWaste Management entered a

document into the public comments on Jan 31,2003 at 1:34 p.m. which enumerates a

number of public communications initiated by Waste Management.

The document, however, failed to produce any evidence ofactivities conducted by

Waste Management to involve the public from the initial stages in the site selection

process. The events described were all actions that were informational, telling people

what the Applicant and the County had secretly agreed to do for the siting of a new

landfill.

This document reinforces the contention that Waste Management failed to involve the

public from the beginning of the process including site selection.

Lee Addleman, Public

Comment PC#5 c1283-c285

The Applicant and the County ,acted in secret, to reach an agreement on site

selection for a new facility, resulting in the systematic exclusion of the public from

involvement in the site selection process as required by the County Solid Waste

12

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Management Plan. “Now, the first backdrop is that this plan is in direct contradiction to

the County Solid Waste Management Plan because, because first of all, the public has

been excluded from the process. There’s supposed to be three parties involved here;

Waste Management, the County, and the third party, which is the most important, is the

constituency of this county. That’s the voting public. They have been systematically

eliminated from this process and in contradiction to the County’s own plan.” No.!, the

most important party in this process has been totally left out ofit and that’s the public.

The whole landfill process contrary to the Solid Waste Management Plan, requiring

public input has simply been shut out ofthis”

Tr. Vol. 29 222445 XXIX. txt 12-06-02, pg.

94,

lines 7-16

Applicant failed to refute the contention that that he did not meet the Solid Waste

Management plan requirementto involve the public from the beginning of the process

including site selection.

Applicant’s attorney attempted to confuse the Regional Planning Commission by

presenting a false argument. His answer was the public could participate here during the

39.2 hearing. Obviously this is subterfuge intended to divert attention away from

Applicant’s failure to meet the public involvement requirement and his failure to present

any evidence that the Applicant involved the public in the site selection process, by

suggesting that the public could participate in the 39.2 hearing.

Everyone who has any knowledge of the process knows that participation in the 39.2

hearing is commentary on the already developed plan at the end of the process, and not

involvement at the beginning of the process.

Here is what Attorney Moran said: “And the statements that suggest that somehow

the Applicant was less that diligent in involving members of the public in the well, gee,

this application and Mr. Bleyer stated, all of these members of the public want to come in

and they want to participate in reviewing and commenting upon and helping review that

request and that application and that design, that’s been something Waste Management

13

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has encouraged all along. It has been something that has occurred prior to this hearing

with a number of people. Unfortunately, perhaps Mr. Bleyer’s clients or the people he’s

spoken to feel that they have not been able to participate in any event. They could have

participated here. They could have come here and reviewed the application and provided

comment, told us what the liked, what they didn’t like. I didn’t see them. Nobody was

here. Nobody! heard”.

Tr. Vol. 29222445 XXJX. lxi 12-06-02, pg 127 lines 10-22, pg

128, lines 1-5

The Applicant did not offer one shred of evidence that would indicate any actions

taken by the Applicant to involve the public from the beginning ofthe process starting

with site selection. Mr. Moran’s closing is an unmitigated distortion.

He

certainly

understands that public involvement, as defined in the County Solid Waste Management

Plan does not begin at the end of the process at the 39.2 hearing. Perhaps this is all one

can do, when his client has failed, so acutely, it’s responsibility to meet the plan

requirement of public involvement.

It is obvious from the testimony, on the record, that the Applicant has failed to

comply with the County Solid Waste Management plan which calls for public

involvement in the process from the beginning, including site selection.

Restatement of the plan condition:

“Public Involvement is crucial throughout the landfill site selection process and should

be solicited from the initial stages of the process. Through solid waste advisory

committees, public hearings, et cetera, local criteria should be developed to identify a site

which reflects the concerns the public. Now you might think these words came from a

contemporary text on how to site a landfill, but, in fact they do not. These words are at

page 334 of your very own Solid Waste Management Plan and are listed as additional

siting criteria that the applicant

,

not you, the Members of the County Board, but that the

applicant must meet in order to comply with the Solid Waste Management Plan. Take a

look. Look it up.

14

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Conclusion:

The preponderance ofthe evidence

indicates

that the Applicant failed to comply

with the County Solid Waste Management Plan which

requires

public i.nvotvement

from

the

beginning ofthe process and; therefore, fails to meet the conditions of

Criterion

VIII

on plan

consistency.

For

this

reason the

County

siting

decision

should be overturned.

Fee Agreement established before the granting of siting approval.

The plain language of the County solid Waste Management Plan requires a Host Fee

Agreement Must be established with the Applicant. “Prior to granting of a siting

approval pursuant to Section 39.2 of the Illinois Environment Act, a host benefit fee shall

be established with the applicant”.

Page 344 County Solid Waste Plan.

“Any applicant requesting site location approval for a landfill expansion or a new

sanitary landfill within the County should agree, in a Host Community Agreement

negotiated with the County, to pay an appropriate host fee. The Host Community

Agreement should be signed prior to submitting a siting application pursuant to Section

39.2 of the Illinois Environmental Act.”

County Solid

Waste Management Plan page

345.

There

application was filed on Aug. 16, 2002.

An application was previously filed on March 29, 2002. A Host Fee Agreement was

agreed to by the County on December 11, 2001. That application was subsequently

withdrawn on July 22. 2002. because of a notification deficiency.

The application was re-filed on August 16, 2002.

15

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Hearing officer McCarthy states: I think my ruling July 22 is dispositive of this

motion, as well. At that time, I said even though the applicant doesn’t use the word

“withdraw,” it seems to me that in effect, what they’re talking about is withdrawing the

application and refilling it. And giving proper notice under the statute, the hearing

would then be reset for 90 to 120 days from the date of the filing of the application. It is

true that Mr. Moran never did use the word “withdraw”. I’m not sure even this day why

he didn’t ,but it seems to me that is was clear that the application was withdrawn and

refilled August 16.

Tr. Vol. 2 /c3L1118.V1 11-18-02, pg. 29, lines 19-2, pg. 30, lines 1-

Jo.

Mr. McCarthy further states at the severed hearing ofJuly 22, 2002 “Even though

those words were not usedby the applicant, I take it that that’s what’s happening here.

Any other comment? (no response) Hearing none and hearing no further objections, this

public hearing is closed”

Report ofProceedings had during the public hearing before

Mr. McCarthy, Hearing Officer, at the Quality Inn, 800 North Kinzie Avenue, Bradley,

Illinois, on the 22” day of July 2002. pg 15, lines 9-22

Because the original application was withdrawn on July 22, 2002, The Host Fee

agreement automatically terminated on that date, absent a written extension for good

cause, from the County Board. No letter of extension was entered into the record,

Attorney Bleyer entered a motion to dismiss the hearing on the basis that there was no

valid host agreement.

Mr. Bleyer stated: “I am taking up part B of the motion to dismiss entitled host

agreement of record. Referencing back to you the comments made, Mr. McCarthy this

morning when we all convened, that in fact, The applicant had filed a record the host

agreement, which purports to be the agreement between it and the County regarding

hosting the expanded facility. 1 feel it’s important to point out

,

as I have in this motion,

that the host agreement specifically states, that in pertinent part Waste Management shall

file a siting application

Tr. Vol.

2

k3L1J18.S/J 11-18-02, P85k lines 11-22.

16

---

Bleyer continued: “for the expanded facility on or before June 1, 2002 unless the

County consents in writing to an extension ofthis period for good cause shown. If Waste

Management does not file its siting application for the expanded facility on or before

June 1, 2002 and absent the County’s consent in writing to an extension of the filing

deadline for good cause shown, this agreement shall become null and void

Tr. Vol. 2

k3L1J18.V1 11-18-02 pg.6, lines 1-10

There was no attempt on the part of the County to carry the process forward.

Consequently the Host Fee Agreement was null and void at the commencement of’ the

hearing. Bleyer Continued: Now what we have here is a situation where the application,

the underlying application that we are assembled for today was filed on August 16 of this

year. The prior application which they previously filed prior to June 1, of this year

was—there was no process taken forward on that after a preliminary problem with notice

and the matter was then dropped.

Tr. Vol. 2 lc3L1118.V1 11-18-02, pg. & lines 11-19

Neither the Applicant nor the County offered proof that a letter of extension had been

granted. In fact Applicant’s witness Sheryl Smith who was responsible for plan

compliance,, could not offer proof of the County, extending in writing, the deadline for

the expiration ofthe Host Fee Agreement.

Under questioning from Attorney Bleyer:

“Q.

Okay, But I’m asking you if you are aware if there was any written extension

made by the County to—Mr. McCarthy: I think she’s answered that question, Mr.

Bleyer. Mr. Bleyer: Well I’m sorry, sir I didn’t hear her answer. I don’t recall.

BY MR

BLEYER:

Q.

Have you answered that question? A. I did answer that question.

Q.

And you’re saying yes, you do know of such an extension or no, you don’t ? Mr.

Moran: Objection. Mr. McCarthy: On what basis? Mr. Moran: It’s cumulative. Asking

the same question. Mr. Mc Carthy: Well, he says he didn’t hear the answer. So. I will

allow her to answer at again. BY MR. BLEYER: A. I’m not aware. Mr. Bleyer:

Okay, I have now further” Tr. Vol. 2 k3Ll 1 18.V1 11-18-02

17

---

Attorney Bleyer opined that the Host Fee Agreement was not valid when he stated:

“And I submit, as a matter of law on it’s face, is void. Clearly stating that this

application would have had to have been filed by June 1 ofthis year. This application

was not filed June 1 of this year. It was filed August 16 ofthis year; and so therefore,

that is not the host agreement between these two parties. “Tr. Vol. 2 k3LI 1 18.V 1 11-18-

02, pg. 8. lines 2-9.

The validity ofthe condition of self -nullification contained within the Host Fee

Agreement was eloquently argued by Waste Management’s attorney Moran: “this

agreement was appropriate, whether the County or Waste Management should have

entered into it. The document is here. It speaksfor itself. It is clear in all of its details.

It seems to me it would be inefficient, inappropriate and not helpful in any way to

evaluate and explore that agreement as part of this hearing. That’s really what the basis

of my concern is by allowing an inquiry into the host agreement”.

Tr. Vol. 18

221394X VIII.

txt

11-25-02, pg. 21. lines 1-8

In further support of the contention that the Applicant and County did not have a

valid Host Fee Agreement, Attorney Mueller stated: “Very briefly, I interpret Mr.

Bleyer’s motion really as being one for summaryjudgment since the Eight Criterion is

that the County Board must make a finding that the application is consistent with the

local Solid Waste Management Plan”.

Tr. Vol. 2 kJLJlI8.V1 11-18-02 pg 10, lines 15-

22

Mueller Continued: I recall Mr. Moran arguing this morning that only those nine

siting criteria should be considered and if each one of them is met, the board must

approve the application. Well, to the extent that there is a County Solid Waste

Management plan here, which calls for a host agreement, and Mr. Bleyer argued most

eloquently that the host agreement on the face is void, expired or no longer in effect, it

would

seem

to

become a factual impossibility that Criterion Eight can be proven and

therefore, the chair should grant summaiy judgment in favor of the objectors and dismiss

the application.

Tr. Vol.

2 k3L1118.V1

11-18-0 ,pg.11, lines 1-12.

12

---

Applicant failed to directly refute ordeny the argument that the absence ofa Host Fee

Agreement constitutes non-compliance with the County Solid Waste Management Plan.

Instead, Mr. Moran again attempted to confuse the Regional Planning Commission by

through obfuscation, by arguing a different point. He contended that the 39.2 rules don

not require a host fee agreementto be in place in advance of a siting hearing. In so

doing he avoided confronting the legitimate argument that the Solid Waste Management

Plan requires a valid host fee agreement prior to a siting hearing.

The real argument is that the application is not consistent with the County Solid Waste

Plan. Mr. Moran failed to address the plan consistency with his argumentation: “And if

we do look at the host agreements that’s contained in Section 39.2 and the subsection if

F, I believe, which

talks about a host agreement. I’m sorry it’s not in F. It’s actually in

D. Is says at any time prior to making a final local siting hearing decision, in other

words, before the County Board Ultimately decides the siting application, if there is an

agreement that is reached between the local governing body and the applicant, by way of

a host agreement, that must be disclosed. That must be included as part of the

proceedings. So even if one were to grant that the contract in place now is a void

contract, that has absolutely no effect on whether this proceeding ought to go forward or

whether the board hasjurisdiction to consider it.

Tr. Vol. 2 k3Ll I 18.V1 11-18-02, pg. 9,

lines

1-20.

To the contrary, Criterion VIII is very specific on

t

the issue of where authority

resides in communities which have adopted a Solid Waste Management Plan. “If the

facility is to be located in a county where the county board has adopted a solid waste

management plan consistent with the requirements of the local Solid Waste Disposal Act

or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan.

Tr. Vol. 1, 221347 1, txt 11-18-02

,

pg. 6, lines 20-2 pg 7, lines 1-6.

In his closing argument, Attorney Bleyer made it clear that the plan did not satisfy the

condition of the Solid Waste Management Plan and Siting Ordinance: “One more,

Here’s your duck: the entire Host Agreement is contingent upon Waste filing its

application for siting by June 1~,2002. The Application for siting by June 1,2002. The

---

application for siting that relies upon that Host Agreement, the one we are here for now,

was filed on August 16°’.of this year. According to it, there’s no Host Agreement And

the terms of the County Solid Waste Management Plan and siting ordinance are therefore

unsatisfied.

Tr. Vol. 29222445 XXJX.

ta

12-06-02 pg. 90, lines 6-15.

Waste Management’s Attorney declined to address the absence ofa valid host fee

agreement in his closing arguments. Silence on closing, coupled with the lack of

refutation in the body of the record clearly indicates that the Applicant failed to comply

with this pillar ofthe County Solid Waste Management Plan.

Conclusion:

The County

solid Waste

Management

Plan requires

a Host

Fee

Agreement

prior

to

submitting a Sitting

Application. The preponderance of the evidence proves that

Application Is not Consistent With The Solid Waste Management Plan.

The plain language of Solid Waste Management Plan requires a Property Value

Guarantee Program be established by an independent entity.

Attorney Bleyerposited this argument: “Now I refer you to the March 12°’

amendment to the Solid Waste Management Plan at paragraph 7 on page 345 that

specifically states —~Here’sa copy of it. And I quote, The owner or operator of a

proposed new landfill or landfill expansion in the County shall be required to establish a

Property Value Guarantee Program for all Households within a site-specific distance

from the proposed landfill site. Such Property Value Guarantee Program to be prepared

by an independent entity satisfactory to the County”.

Tr. Vol. 29 222445 XXIX. bi 12-06-

02, pg. 82, line 22, pg. 83, lines 1-13.

2.0

---

The Property Value Guarantee Program submitted by the Applicant is not an

independently prepared program, it is Waste Management’s own In-house Property

Value Guarantee Program. Consequently, the Property Value Guarantee Program of

record is not consistent with the County Solid Waste Management Program. This was

pointed out by attorney Mueller:

“However, it is unequivocal that the County Solid Waste Management Plan calls for

an independently prepared property value guarantee program, and this proper value

guarantee program which has been put in by a number ofpeople is not independently

prepared. It’s Waste Management’s in-house program. Now whether it’s as good or better

or worse than an independently prepared program, I don’t know. The Point is it’s not

consistent with the requirement ofthe Solid Waste Management Plan”.

Tr.Vol.28

221441

.txt

XXVIII 12-05-02, pg. 169, lines 6-16

The Applicant was unable to counter the argument that the Property Value Guarantee

program was not independently prepared. Attorney Bleyer amplified this point when he

said: “Like Mr. Mueller indicated last night, I, too have lots of questions about the

Property Value Guarantee Agreement, and I’m definitely interested in pressing for

answers for them, too. But Waste never called a witness who could explain when the

agreement was promulgated, who drafted it, when it was distributed, what the response

rate to the offers were or other pertinent and still yet unresolved matter. Most

importantly, Waste never disclosed, in the application or through testimony, who the

independent party satisfactory to the County was that drafted the agreement” Tr. Vol. 29

222445

XXIX.

txt 12-06-02, pg. 82,

lines 2-13

The fact that the Applicant did not substantiate that the Property Value Guarantee

Program was independently prepared, renders the application inconsistent the County

Solid Waste Management Plan. Bleyer continued: “We know, of course, Waste cannot

establish that it’s application is consistent with the Solid Waste Management Plan and,

therefore, once again fails to meet the standard called for under Criteria 8, unless they

21

---

did, in fact, have the agreement that was sent to Lee Milk and others like him that live

near the site prepared by an independent third party acceptable to the County”

Tr. Vol. 29

222445

XXIX. txt 12-06-02, pg 82, lines 13-21

The Applicant and the County, in their rush to riches, decided to again ignore the

County Solid Waste Management Plan, this time as it pertains to the Property Value

Guarantee Program.: “Folks let’s not kid ourselves. Everybody has talked about this

anyway. This landfill is about money. The applicant wants to build it for the profits, and

the County is interested in if for the Host Fee Agreement.

Tr. Vol. 29 222445 XXJX. txt

12-06-02,

Pg 86, lines 9-13

Waste management failed, once again to demonstrate compliance with the Solid

Waste Management Plan:

“

there’s not a shred of evidence that the Property Value

Guarantee Agreement filed by Mr. Moran in this hearing was prepared by an independent

this party deemed acceptable to the County. Waste has failed to demonstrate compliance

with Criterion 8, and for that reason, you must deny this request for siting”.

Tr. Vol. 29 222445 XXIX. txt 12-06-02, pg 87, lines 9-15

Applicant made no attempt to establish that it is in compliance with this condition of

the Solid Waste Management Plan.

the siting decision should be overturned.

VflSummary

Conclusion:

22

---

The County and the applicant in their rush to riches totally ignored the pillar

conditions of the County Solid Waste Management Plan. A County finding that the

proposed Waste Management waste disposal facility is consistent with the Solid Waste

Management Plan is against the Manifest Weight of the evidence. Criterion Eight of

Section 39.2 of the Act requires a showing that: “if the facility is to be located in a county

where the county board has adopted a solid waste management plan consistent with the

planning requirements of the Local Solid Waste Disposal Act or the Solid Waste

Planning and Recycling Act, the facility is consistent with that plan.” 415 ILCS

5139.2(a)(viii)

The plain language ofthe County Plan clearly demonstrates that the

development of Waste Management’s proposed landfill is inconsistent with the County

Plan.

Evaluation of the consistency of the proposed plan with the County Plan, required the

County to look to the plain language of the plan and to consider any language indicating

that the plan does not support the proposed facility. T.O.T.A.L. v. City of Salem. No.

PCB 96-7 and -82(cons.), slip op. At 24 (March 7, 1996) If the intent of the plan does

not allow or provide for proposed facility, consistency cannot be established. Waste

Hauling, Inc. v~Macon County Board, PCB 91-223, slip op. at 17-18 (May 7, 1992)

The plain language of the County Plan clearly provides that any proposed landfill

must:

1)Not be sited above or near a groundwater recharge zone or a heavily utilized water

supply aquifer, and

2)Have involved the public from the initial stages and throughout the landfill site

selection process, and

3)Have a valid Host Fee Agreement prior to granting a siting approval, and

4)Have a Property Value Guarantee Program independently prepared by an entity

satisfactory to the County.

Because the Applicant failed to meet these pillar conditions of the

Solid

Management Plan and because the local siting process used by the County failed

---

to address the issue of Plan Consistency, the manifest weight of the evidence clearly

indicates

that

the

siting of the proposed landfill should be overturned.

VII)

PROCEDURAL PROBLEM

On May

5th~

during the hearing session, respondent Runyon complained to the Hearing

Officer that he had been left out of three scheduled teleconference calls.

Respondent respectfully apologizes for a misstating one aspect of the complaint.

Respondent said in open session that he had been excluded from three teleconference

calls.

After review of Hearing Officer’s order dated April 17, 2003, respondent discovered

that the scheduled call of April 23, at 11:30 A.M. was moved to 1:30 P.M. on April ~

2003.

In the interim, respondent spoke with County attorney Porter who informed

respondent of the schedule change. Based upon Porter’s input, respondent stayed by his

phone (815 937 9838) from 1 P.M. until approximately

5:15

P.M. on April

24th

Respondent received no teleconference call.

Later, respondent was informed of a call scheduled for May 1, 2003. Respondent

was not made a party to this call either. During open session, the Hearing Officer said

that the County sent a fax to respondent informing him ofa number to call in to complete

this call. Respondent never received said fax. The County alleged that it had received

a fax delivery confirmation notice for a fax delivered to respondent. No hard copy

evidence of said confirmation was presented at the time of the verbal representation.

On April 2D. respondent sent a fax to Hearing Officer Halloran, which said:

“I

waited by my phone on April 23~,until noon and go no conference call. I learned from

another attorney that the their (sic) was a call on the

24th~

I

did not get that call either.”

Respondent’s phone and fax equipment is of professional quality. It has served

respondent flawlessly for several years.

Respondent does not understand why he was excluded from these phone calls.

‘4

---

The Foregoing Was Respectfully Submitted to the Clerk of the Illinois Pollution Control

Board in the volume of one original and nine copies via Prioity Mail on May 29, 2003.

Each of the parties on the attached Affidavit ofService were also sent a copy of the

foregoing on the same date.

Respectfully Submitted

.~

ithLRuny ,Pe~ oner

Keith L. Runyon

Resident of Kankakee County

Petitioner, Represently Himself

1165 Plum Creek Drive, Unit D.

Bourbonnais, Ii 60914

Phone 815 937 9838

Fax 815 937 9164

25

---

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of

Civil Procedure, hereby under penalty perjury under the laws of the United States of

America,

certifies that

on May 29. 2003 was served a copy of the foregoing Brief via

letter:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, 1160601-3218

Attorney George Mueller

501 State Street

Ottawa, II 61350

8154334705

Fax 815 422 4913

Donald J. Moran

Perterson & Houpt

161 North Clark Street, Suite 3100

Chicago, II 60601-3242

312 261 2149

Fax312 261 1149

Elizabeth Harvey, Esq.

Swanson, Martin, & Bell

One IBM Plaza, Suite 2900

330 North Wabash

Chicago, II 60611

3123219100

Fax312321 0990

Kenneth A Leshen

One Dearborn Square, Suite

550

Kankakee, Ii. 60901

8159333385

Fax 933 3397

L. Patrick Power

956

North Fifth Avenue

Kankakee, II 60901

815 937 6937

Fax 937 0056

---

Jennifer J. Sackett Pohlenz

175 W. Jackson Boulevard

Suite 1600

Chicago, II 60604

3125407540

Fax 3 12 540 0578

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, 1

1th

Floor

Chicago, II. 60601

312 814 8917

Fax 814 3669

Richard S. Porter

Charles F. Helsten

Hinshaw & Culbertson

100 Park Avenue, P.O. Box 1389

Rockford, 11.61105-1389

By depositing a copy thereof, enclosed in an envelope in the United States Mail at

Bourbonnais, Illinois, proper postage prepaid, before the hour of

5:00

P.M., on May

29th~

2003 addressed as above.

Keith Runyon

1165 Plum Creek Dr. Unit D.

Bourbonnais, IL 60914

8159379838

Fax 815 937 9164