65448-FOB
JUN
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22
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__________________________________BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARDSTATE
MICHAEL WATSON,
On
Controj 8Oard
Petitioner,
No. PCB 03-134
vs.
(Pollution Control Facility Siting Appeal)
COUNTY BOARD OF KANKAKEE COUNTY, Consolidated With PCB 03-125, 03-133,
ILLINOIS, and WASTE MANAGEMENT OF
03-135)
ILLINOIS, INC.,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on June 2, 2003, we filed with the Illinois Pollution
Control Board, the attached Petitioner, Michael Watson’s, Brief Contesting the January 31,
2003 Decision of the Kankakee County Board, Conditionally Approving WMII’s
Application to Expand the Kankakee County Landfill, a copy of which is attached hereto
and served upon you.
QUERREY & HARROW, LTD.
J~J.Sacke~
Jennifer J. Sackett Pohlenz
QUERREY & HARROW, LTD.
175 West Jackson Boulevard
Suite 1600
Chicago, Illinois 60604
(312) 540-7000
Attorney Registration No. 6225990
Attorneys for Petitioner Michael Watson
Document #: 830542
Printed on Recycled Paper
PROOF OF SERVICE
Alesia Mansfield, a non-attorney, on oath states that she served the foregoing Notice of Filing, along
with copies of document(s) set forth in this Notice, on the following parties and persons at their respective
addresses and/or fax numbers, this
2E,d
day of June, 2003, by or before the hour of 4:30 p.m. in the manners
stated below:
Via Facsimile
Donald
Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago,
IL
60601-3242
Fax: (312) 261-1149
Attorney for Waste Management of Illinois, Inc.
Via Facsimile
Kenneth A.
Leshen
One
Dearborn Square
Suite 550
Kankakee, IL 6090!
Fax: (815)
933-3397
Representing Petitioner in PCB 03-125
Via Facsimile
George Mueller
George Mueller, PC.
501 State Street
Ottawa, IL 61350
Fax: (815) 433-4913
Representing Petitioner
Via U. S. Mail
Leland Milk
6903 5. Route 45-52
Chebanse, IL 60922-5153
Interested Party
Via Facsimile
Charles Helston
Richard Porter
Hinshaw & Culbertson
100
Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
Fax: (815) 490-4901
Representing Kankakee County Board
Via U. S. Mail
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
Interested Party
Via Facsimile
Keith Runyon
1165 Plum Creek Drive
Bourbonnaise, IL 60914
Fax: (815)
937-9164
Petitioner in PCB 03-135
Via Facsimile
L. Patrick Power
956
North
Fifth Avenue
Kankakee,
IL 60901
Fax: (815) 937-0056
Representing Petitioner in PCB 03-125
Via Facsimile
Elizabeth S. Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
Fax: (312) 321-0990
Representing Kankakee County Board
Via Hand Delivery
Bradley P.
Halloran
Illinois Pollution Control Board
James R. Thompson
Center, Ste. 11-500
100
W.
Randolph
Street
Chicago,
IL
60601
Hearing Officer
in PCB
03-133
Alesia
Mansfield (I
Printed on Recycled Paper
RECEIVED
CiFPR’~
nmnr:
JUN
22003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SlATE
OF ILLINOIS
MICHAEL WATSON,
Pollution Control Board
Petitioner,
No.
PCB 03-134
‘.5-
(Pollution Control Facility Siting
COUNTY
BOARD OF KANKAKEE COUNTY,
Appeal)
ILLINOIS,
and WASTE MANAGEMENT OF
ILLINOIS, INC.,
Consolidated With PCB 03-125, 03-
Respondent.
133,
03-135)
PETITIONER MICHAEL WATSON’S BRIEF CONTESTING THE JANUARY 31, 2003
DECISION OF THE
KANKAKEE
COUNTY BOARD CONDITIONALLY APPROVING,
WMII’S APPLICATION TO
EXPAND THE
KANKAKEE
COUNTY LANDFILL
Jennifer
J.
Sackett
Pohlenz
QUERREY & HARROW, LTD.
175 W.
Jackson, Suite 1600, Chicago, Illinois
60604
(312) 540-7000
TABLE OF CONTENTS
INTRODUCTION
2
II.
STANDARD OF REVIEW
3
III.
ARGUMENT
4
A.
The IPCB Should Find Kankakee County’s Decision Null and Void,
Due to a Lack of Jurisdiction Arising From WMII’s Failure to Serve,
Pursuant to Section 39.2(b) Two Owners ofProperty Within 250’ of
The Property Boundary of the Proposed Site
4
1.
The undisputed evidence is that neither Brenda nor Robert Keller
ever received pre-filing notice of WMII’s August 16,
2002, Application
7
2.
WMIJ’s attempts at persona! service beginning a mere four days prior
to the j4th day before filing, were unreasonable
10
3.
WMII’s belatedly produced and unserved certified letter to Robert
Keller should not have been admitted into evidence, as no foundation
for its authenticity was presented and, even if it is considered, it fails
to prove either receipt or recalcitrance
11
4.
There is no evidence to show that either Brenda or Robert Keller were
recalcitrant, thus, WMJI’s alleged attempt to “post” service is not valid
12
5.
WMII’s alleged attempt at service via regular, U.S. Mail. allegedly
sent on August 1, 2002, the day prior to its pre-filing notice deadline,
is not compliant with the notice requirements of Section 39.2(b)
of the Act
14
B.
The Siting
Process and Resulting Kankakee County Board Decision
Were Fundamentally Unfair and This Matter Should be Remanded
for a New Hearing
14-15
I.
WMII’s complete application was not provided to the participants or
properly made available for public review in violation of4l 5 ILCA
5/39.2(c) and rendered the proceedings fundamentally unfair
15
2.
The decision of the Kankakee County Board and the public
hearings were fundamentally unfair, as they relied on the perjured
testimony of WMII’s Criterion 3 witness, Patricia Beaver-McGarr
and WMII failed to produce Ms. Beaver-McGarr’s diploma and
failed to produce Ms. Beaver-McGarr for further questioning
21
a.
Kankakee County’s decision is fundamentally unfair, since
it was allowed to consider and relied on perjured testimony
23
b.
The public hearings were fundamentally
unfair,
as Watson
was denied the opportunity to finish his examination of
Ms. Beaver-McGarr and, as a result, denied due process
25
3.
The Kankakee County Board predetermined and prejudged its
approval of WMII’s proposed landfill expansion, essentially
treating it as a formality in furtherance of the Kankakee County
Solid Waste Management Plan and I-lost Agreement
26
4.
Improper ex
parte
communications between WMII and the
County prior to the decision of the Kankakee County Board
violated fundamental fairness
28
C.
The Kankakee
County Board’s Decision to Conditionally Approve
the Proposed Landfill Expansion is
Against
the Manifest Weight
of the Evidence
31
I.
The Kankakee County Board’s decision as respects Criterion I (Need)
was against the manifest weight ofthe evidence
31
a.
WMII overstated waste generation totals for the service area
by utilizing inconsistent and incorrect recycling data and,
thus, did not present
apriinafacie
case in support ofneed
for the capacity it sought
35
b.
WMII also understated available capacity for the service area,
arbitrarily overstating need for the expansion
36
2.
The Kankakee County Board’s decision as respects Criteria 2 and
5 was against the manifest weight of the evidence
38
3.
The Kankakee County Board’s decision as respects Criterion 3
(compatibility with the surrounding area and minimize impact on)
was against the manifest weight of the evidence
42
4.
The Kankakee County Board’s decision as respects Criterion 6
(traffic) was against the manifest weight ofthe evidence
45
5.
The Kankakee County Board’s decision as respects Criterion 7
was against the manifest weight of the evidence
46
6.
The Kankakee County Board’s decision as respects Criterion 8
(Consistency with the SWMP) was against the manifest weight
of the evidence
47
D.
If the IPCB Determines Not to Reverse or Remand the Kankakee County
Board
Decision, the IPCB Proceeding on Fundamental Fairness Should
be
Remanded for Further Discovery/Hearings
49
V.
CONCLUSION
50
11
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MICHAEL WATSON,
Petitioner,
No. PCB 03-134
vs.
(Pollution Control Facility Siting
COUNTY BOARD OF
KANKAKEE
COUNTY,
Appeal)
ILLINOIS, and WASTE MANAGEMENT OF
ILLINOIS, INC.,
Consolidated With PCB 03-125, 03-
Respondent.
133, 03-135)
PETITIONER MICHAEL WATSON’S BRIEF
CONTESTING THE JANUARY 31, 2003
DECISION OF THE
KANKAKEE
COUNTY BOARD CONDITIONALLY APPROVING,
WMII’S APPLICATION TO EXPAND THE
KANKAKEE COUNTY LANDFILL
Pursuant to Section 40.1(b) of the Illinois Environmental Protection Act (Act), Petitioner
Michael Watson (Watson) has filed a petition requesting the Illinois Pollution Control Board (IPCB)
review the January 31, 2003, decision of the Kankakee County Board, conditionally approving
Waste Management of Illinois, Inc.’s (WMII) Site Location Application for the Kankakee County
Landfill Expansion (Application). (415 ILCS 5/40.1(b)). Mr. Watson’s Section 40.1(b) TPCB
Petition seeks review of Kankakee County’s conditional siting of W~vIILslandfill expansion request
for, essentially, three reasons:
(A) Kankakee County did not have jurisdiction to
hear and decide on WMII’s
Application, due to WMII’s failure to serve Section
39.2(b) pre-filing notice on Brenda and
Robert Keller, who are property owners within 250 feet of the property boundary of the proposed
landfill expansion. (B) The local siting proceedings in Kankakee County were fundamentally
unfair, individually and collectively, due to: (I) the unavailability of WMII’s operating record,
required to be filed with the Kankakee County Clerk pursuant to Section 39.2(c); (2) perjured
testimony of one of WMII’s Criterion 3 witnesses and the unavailability of that witness for
complete cross-examination; (3) prejudgment; and (4)
exparte
communications. And, (C), the
decision of the Kankakee County Board was against the manifest weight of the evidence with
respect to Criteria (i), (ii), (iii), (v), (vi), (vii), and (viii) of Section 39.2 of the Act.
As a result of lack ofjurisdiction, as discussed below in Section lIlA., the JPCB should
vacate the Kankakee County Board’s decision and find it null and void. As a result of the
individual and/or collective fundamentally unfair public hearings and local siting procedure. as
discussed in Section IIl.B., below,
if the IPCB does not vacate the Kankakee County Board’s
decision for jurisdictional reasons, the decision should be remanded for new public hearings to
cure the fundamentally unfair hearings and unavailability of records. In the alternative, as
discussed in Section III.C., below, if the IPCB does
not vacate the Kankakee County Board’s
decision for jurisdictional reasons, that decision should be
reversed on the basis that it is against
the manifest weight of the evidence. Finally, also in the alternative, and discussed below
in
Section III.D., should the IPCB deny vacation, remand and reversal of the Kankakee County
Board’s siting decision as described above, Petitioner respectfully requests and reserves its rights
to seek remand of the IPCB appeal process on fundamental fairness, for additional discovery and
public hearings to cure evidentiary bars and rulings which are respectfully submitted to have
caused the proceeding before the IPCB to be unfair, and prevented Petitioner from developing a
more complete record concerning fundamental fairness issues it identified.
I.
INTRODUCTION
On March 29, 2002, \VMII made its first attempt to file the Application with the
Kankakee County Board.
On July 22, 2002. WMII, before local Hearing Officer John
McCarthy, withdrew the first attempted filing of the Application, as WMII had not adequately
served pre-fihing notice, pursuant to Section 39.2(b) of the Act. (11/18/02 1:30 pm Tr. 29-30).
Subsequently, on August 16, 2002, WMII again filed, in some fashion, the Application.
(11/18/02 9:00 am Tr. 3). The Application seeks a proposed new pollution control site, namely
a significant expansion of the Kankakee County Landfill. The proposed Kankakee County
2
Landfill expansion has a total landmass of 664 acres, of which 302 acres, WMII proposes to be
landfill with 30,000,000 tons of waste. (11/18/02 6:00 pm Tr. 6). The existing Kankakee
County Landfill is 179 acres of property, of which Si acres are or will he landfilled prior to its
closure. Id. Thus, the total horizontal expansion sought by \V~~1Il,beyond the existing site, is 485
acres of land and 252 acres of landfill, which translates into a landfill expansion that is more than
5 times larger horizontally (not accounting for increase in volume of waste) than the existing site.
II.
STANDARD OF REVIEW
There are three standards of review to be considered in this appeal. First, with respect to
the jurisdictional and fundamental fairness issues, the standard applied is
de novo.
Land &
Lakes Co. v. Illinois Pollution Control Board, 319 Ill. App. 3d 41, 48, 743 N.E.2d 188, 193-194
(3d Dist. 2000)(de
novo
standard of review for fundamental fairness). Unfair practices or
procedures such as the unavailability of the record,
ex pane
contacts, introduction of evidence,
and prejudgment or impartiality of rulings on the evidence, and others, may individually, or
cumulatively, render siting proceedings fundamentally unfair. American Bottom Conservancy v.
Village of Fairmont City, PCB 00-200 (October 19, 2000):
see,
Hediger v. D& Landfill. Inc.,
PCB 90-163 (December 20, 1990); Daly v. Pollution Control Board, 462 Ill. App. 3d 968, 637
N.E.2d 1153, 1155 (1st Dist. 1994).
Second, with respect to that portion of this appeal related to the review of the decision on
the nine criteria enumerated in Section 39.2 of the Act, the standard of review is manifest weight
of the evidence. E & E Hauling, Inc. v. Pollution Control Board, 116 Ill.App.3d 451, N.E.2d
555
(2d Dist. 1983), aff’d 107 Ill. 2d 33, 481 N.E.2d 664 (S.Ct. 1985); McLean County Disposal. Inc.
v. County of McClean, 207 Ill.App.3d 477, 480-481, 566 N.E.2d 26, 28-29
(4th
Dist. 1991).
Although the IPCB is not to “reweigh” the evidence on review, the IPCB must determine if
3
sufficient evidence was presented by a credible witness. Metropolitan Waste Systems, Inc. v.
City of Marseilles, PCB No. 89-121 (1989); Metropolitan Waste Systems, Inc. v. Pollution
Control Bd., 201 III. App. 3d 51, 558 N.E.2d 785 (3d Dist. 1990). This includes the IPCB’s
review of credibility of witnesses, as, according to the Illinois Supreme Court, a court should
defer credibility determinations to the trier of fact unless such determinations ~ç_~g~jnsta
manifest weight of the evidence. Eychaner v. Gross.
et aL,
202 Ill.2d 208, 779 N.E.2d 1115,
1130 (S.Ct. 2002). A decision is reversed as against the manifest weight of evidence if the
opposite result is clearly evident, plain or indisputable from a review of the evidence. Slates v.
Illinois Landfills, Inc.. PCB No. 93-106 (1993),
citing
Harris
v. Day, 115 Ill.App.3d 762. 451
N.E.2d 262 (4th Dist. 1983).
Ill.
ARGUMENT
Mr. Watson’s Section 40.1(b) 1PCB Petition seeks review of Kankakee County’s
conditional siting of WMII’s landfill expansion request for, essentially, three reasons: (A) lack
of jurisdiction, due to WMII’s failure to serve pie-filing notices pursuant to Section 39.2(b) of
the Act; (B) on an individual and collective basis, a number of issues rendering the local siting
proceedings fundamentally unfair; and (C) that the decision of the Kankakee County Board was
against the manifest weight of the evidence.
Additionally and in the alternative, should the IPCB deny vacation, remand and reversal
of the Kankakee County Board’s siting decision as sought for the above reasons, it is respectfully
requested that (D) the IPCB remand for additional discovery and public hearings to cure
evidentiary bars and erroneous rulings, for the reasons discussed in Section JII.D., below.
A.
THE IPCB SHOULD FIND
KANKAKEE
COUNTY’S DECISION NULL AND VOID,
DUE TO A LACK OF JURISDICTION ARISING FROM WMII’S FAILURE TO SERVE,
PURSUANT TO SECTION 39.2(b) TWO OWNERS OF PROPERTY WITHIN 250’ OF
THE PROPERTY BOUNDARY OF THE PROPOSED SITE
4
Pursuant to the requirements of Section 39.2(b), \VMII claims to have provided service to
all owners ofproperty within 1,000 feet in each direction ofthe lot line of the subject site before
the deadline of August 2, 2002. (Application Tab A, Affidavit of Donald J. Moran). Although,
Kankakee County’s Siting Ordinance requires notice within 1,000 feet of the proposed facility,
Section 39.2(b)’s requirements for pre-filing notice on property owners within 250 feet
excluding roadways, no more than 400 feet are jurisdictional. WMII failed to serve two property
owners, named on the authentic tax records of Kankakee County, and who own property across
the street from and within 250 feet of the proposed site’s property boundary: Brenda Keller and
Robert Keller.
Mr. Watson, through his attorneys, filed, during the local public hearings, a motion to
declare WMII’s pre-fihing notice insufficient and to find that the Kankakee County Board did not
have jurisdiction in this matter. In response to this motion. WMII sought the testimony of the
subject property owners who signed affidavits (Watson Exhibit 4, and Petitioner Exhibits 20 and
21), and presented testimony from Ryan Jones, the process server who failed to serve Brenda
and
Robert Keller with pre-filing notice. (12/05/02 6:00 p.m. Tr. 5-58).
Robert and Brenda Keller, property owner’s whose service is required by Section
39.2(b),
were not served by registered (or certified) mail, were not served
personally,
and did
not receive pre-filing notice from WMII with respect to WMII’s August 16, 2002, filing. Mr.
and Mrs. Keller’s home, located at 765 East 6000 South Road, Chebanse, Illinois, is located
across the street from the Northeast corner of WMII’s property boundary, and is shown in
Exhibit A, attached to Watson’s Motion filed at the public hearings (Watson Exhibit 4, C614-
5
625).’ Therefore, as WMII did not comply with the jurisdictional prerequisites of Section
39.2(b), the Kankakee County Board was without jurisdiction to proceed with the siting
process in this matter, and the IPCB should find the Kankakee County Board’s decision to be
null and void.
Section 39.2 (b) of the Illinois Environmental Protection Act (415 ILCS
39.2(b))C Act”), provides the notice requirements for applicants involved in landfill siting
applications. Section 39.2(b) of the Act provides, in pertinent part:
No later than 14 days prior to a request for location approval
the applicant shall
cause written notice of such request to be served either
in person or by registered
wait, return receipt requested.
on
the
owners oJ alt property
within the subject
area not solely owned by the applicant, and on the owners ofall property within
250 feet in each direction of the lot line of the subject property,
said owners
being such persons or entities which appear from the authentic tax records of the
County
in which such facilit\ is to be located: provided, that the number of all
feet occupied by all public roads, streets, alleys and oilier public ways shall be
excluded in
computing the 250 feet requirement; provided further, that
in no
event shall
this
requirement
exceed 400
feet, including
public
streets,
alleys and
other public ways.” 415 ILCS
39.2(b),
~pli~sis added.
Illinois Courts have consistently held that the notice requirements of this section of the Act are
jurisdictional and, accordingly, a failure to comply with this section will render the County
Board without the authority to approve a landfill-siting request. Ogle County Bd.
ex rd.
County
of Ogle v. Pollution Control Board, 272 lll.App.3d 184, 649 N.E.2d
545 (1995), appeal denied,
163 Ill.2d 563,
657
N.E.2d 625 (1995): Kane County Defenders, Inc. v. Pollution Control Bd..
139 Ill.App.3d 588, 487 N.E.2d 743 (2~Dist. 1985). Thus, the question of whether Robert and
Brenda Keller received proper notice is a threshold issue in considering WMII’s Application.
There is no dispute as to whether Brenda and Robert Keller’s property is located within the 250’ requirement.
The proximity of the Keller’s property is clear from Exhibit A to Watson Exhibit 4 (C614-625), Robert Keller
testified his property is located across the street from the proposed expansion property boundary (12/05/02 6:00
p.m. Tr. 130-131), and although additional proof, such as survey, was offered by Watson should WMII have
objected to Watson’s jurisdiction motion on that basis, WMII did not object to or contest this notice issue on the
basis of the distance between the Keller’s
property and
the property boundary for
the site.
6
Pursuant to Section 39.2(b), WMII was required to serve both Brenda and Robert Keller,
“either in person or by registered mail, return receipt requested.”
(415 ILCS 5/39.2(b)). WMII
admits that Brenda Keller and Robert Keller both appear as the property owners of 765 East
6000 South Road, Chebanse, Illinois, on the County’s official tax records. (12/05/02 6:00 pm Tr.
144). Failure to timely serve notice on ~
party entitled to statutory notice “will divest the
County Board of jurisdiction over the landfill application.” Ogle County Bd. 272 Ill.App.3d at
195, 649 N.E.2d at
553.
WMII, starting a mere 4 days in advance of the 14-day pre-filing notice
deadline, began attempting personal service on either one or both of the Kellers at
765
East 6000
South Road. Chehanse, Illinois. Prior to WMJI’s attempts at personal service, WMII alleges it
sent one certified mail letter to Robert Keller, which was unclaimed. (Petitioner’s Exhibit 22,
C39-517).
WMII admits
it never attempted to send pre-filing notice to Brenda Keller, and never
attempted to send it certified mail. (12/05/02 6:00 pm Tr. 144).
WMII failed to provide pre-filing notice on Brenda and Robert Keller, as (I) the
undisputed evidence is that neither Brenda nor Robert Keller ever received pre-uiling notice of
WMII’s August 16, 2002, Application; (2) WMIJ’s attempts at personal service beginning a
mere four days prior to the 14th day before filing, were unreasonable; (3)
WMIl’s belatedly
produced and unserved certified letter to Robert Keller should not have been admitted into
evidence, as no foundation for its authenticity was presented and, even if it is considered, it fails
to prove either receipt or recalcitrance; and (4) there is no evidence to show that either Brenda or
Robert Keller were recalcitrant, thus, WMIJ’s alleged attempt
to “post” service
is not valid.
(1)
The undisputed evidence is that neither Brenda nor Robert Keller ever
received pre-filing notice of WMH’s August 16, 2002, Application
Personal service is complete when notice is delivered to the intended recipient
in person.
See,
Ogle Co~yBd. 272 Ill.App.3d at 195-196. The Illinois Code of Civil Procedure, provides
7
an alternative to personal service for a summons, namely substituted service, which allows for a
copy of the document being served be left at the usual place of abode with a person in the family
of the person being served, as long as three, strictly construed requirements are met.
(See.
735
ILCS 5/2-203(a)(2)(requires copy of the document being served be left at the usual place of
abode, that a family member is informed of the document being served, and that the person
their
affidavit and their testimony that neither of them received notice of any kind in any form
(even if not proper form pursuant to Section 39.2(b)). Neither of them received pre-filing notice
for the August 16, 2002, Application by any
of
the
following methods; certified mail, regular
mail, registered mail, personal service, newspaper, or “posting.” (Exhibit A to Watson Exhibit 4;
12/05/02 6:00 pm Tr.
61-63.
85, 93, 103, 125). In fact, the first time Robert Keller found out
that WMII had tiled its August 16, 2002, Application was two Saturdays prior to the first day
of the public hearings (November 9, 2002), when Mr. Watson asked for Robert Keller’s help at
Mr. Watson’s work so that Mr. Watson could attend the public hearings. (12/05/02 6:00 pm Tr.
104-105). This was approximately three months after both Brenda and Robert Keller,
individually, should have received pre-filing notice from WMII.
making service sent
usual place ofabode
1156 (S.Ct. 1986)).
forms of service are
is an analogous rule
By the plain
ll1.App.3d at 195-I
“received” notice.
a copy of the document being served, postage prepaid, to the person at their
); State
Bank of Lake Zurich,
et at
v. Thill,
eta!,
113 lll.2d 294,
487 N.E.2d
Although pre-filing notice in a siting proceeding is not a summons, both
intended to be proven by the “receipt” of the served document, and, thus, it
to Section 39.2(b).
language
of
the
statute, service clearly means receipt. Ogle Counts’ Bd. 272
96.
WMII presented no evidence that either Brenda or Robert Keller
In fact, both Brenda and Robert Keller were absolutely consistent both
in
8
WMIT
presented testimony from the process server, Ryan Jones, who attempted and
failed personal service on Brenda and Robert Keller. Mr. Jones claims he spent 5-10 minutes at
the Keller’s property on the following dates at the following times: Monday, July 29, 2002 at
6:13 pm; Tuesday, July 30, 2002, 1:03 pm Wednesday. July 31, 2002 at 2:34 pm and 8:40 pm
(12/05/02 6:00 pm Tr. 8, 9, 10. 11, 23, 24-25). Mr. Jones testified that he “posted” notice on
August 1, 2002 at 12:19 pm. after knocking on the doors of the home, however, his affidavit
does not reflect he attempted service before he allegedly
posted service (12/05/02 6:00 pm Tr.
12; Petitioner’s Exhibit 7B (C39-517)). Regardless, Mr. Ryan did not find anyone home on all
of his attempts of service, except he allegedly encountered an unidentified woman on July 31,
2002 at 2:34 pm. (12/05/02 6:00 pm Tr. 10-1 I). Mr. Ryan did not attempt to serve this
unidentified ~Dman,aLegedl~
because she would not give her name to Mr. Ryan. (12/05/02
6:00 pm Tr. 22-23). The unidentified woman was not Brenda Keller (12/05/02 6:00 pm Tr. 60-
61). The unidentified woman was not someone who lived with the Kellers who ~‘ould be able
to
accept abode service, even if Ryan attempted service on her, which he did not. (12/05/02 6:00
pm Tr. 10, 34-35,
55-56).
Further Ryan’s credibility in encountering this woman niust be questioned. as Ryan did
not lake any notes concerning this encounter, the encounter is not recorded in his affidavit of
attempted service, and Ryan has served at least one person a day from July 31, 2002, when he
had the alleged encounter with the unidentified woman to the date of the hearing where he
testified, totaling over 88 business days and, thus, at least 88 other attempts at service. (12/05/02
6:00 pm Tr. 44). Further, Ryan’s recollection, as a general matter, was not accurate, as
9
evidenced by his inability to recall inaccurate and overestimates of time he spent during each
alleged
Therefore.attempt
at servicethe
undisputedat
the Kellerevidenceproperty.is
that2 neither Brenda nor Robert Keller were served
or received WMII’s pre-filing notice and, thus, the Kankakee County Board lacked jurisdiction
and its decision should be vacated and declared null and void.
(2)
WMII’s attempts at personal service beginning a mere four days prior to
i!~
14th
day before filing, were unreasonable
Notice must be initiated “sufficiently far in advance to reasonably expect receipt of notice
14 days in advance of filing of a notice.” Waste Management of Illinois, inc. v. Village of
Bensenville, PCB 89-28 (1989),
rev’d on other grounds,
201 Ill 3d 614, 558 N.E.2d 1295 (1st
Dist. 1990). The IPCB has found that attempted service a mere four days in advance of the pre-
tiling notice deadline is not reasonable. ESG Watts, Inc. v. Sangamon County Board, PCB No.
98-2, p. 19-20 (1999). Thus, WMII’s personal service attempts on Brenda and Robert Keller,
began only four days in advance of the pre-filing notice deadline and, like in ESG Watts were
not reasonable.
Additionally, WMII’s attempts at personal service all occurred on weekdays, and all
except for two occurred during typical work hours. Even Ryan Jones admitted the best time for
him to serve people is after
5:00
pm, yet of his alleged attempts at serving the Kellers, only two
times did he attempt service after 5:00 ~m. (12/05/02 6:00 pm Ir. 26). Further, even thought the
2
For example, Ryan who just started working as a process server in April 2002, testified he spent 5-tO minutes
attempting to serve the Kellers each time he made such an attempt and that service attempts take about 5-10
minutes. (12.05’OZ 6:00 pm Tr. 18-19, 36). However, Ryan’s own affidavit proves
that
to be highly unlikely. For
example, on July 31, 2002, Ryan left a home at 43 West 6000 South Road, Chebanse, which Ryan admits is at least
a half mile from the Kellers’ residence at 8:33 pm, drove to the Kellers’ home, allegedly attempted service, left the
Kellers’ home at 8:40 pm, drove to Bernette Benson’s home, served Bernette Benson, and got back into his car
by
8:42 pm (12’05/02 6:00 pm Tr. 38-39, 42-43). So, just on the Keller to Benson end of the service attempt, Ryan
drove out of the Keller’s driveway, drove to Benson’s house, up Benson’s driveway, parked his car, went to the
door,
knocked,
someone answered,
he served
Ms. Benson, talked to Ms. Benson, went back to his car
and recorded
the time, all in two minutes. (12/05/026:00 pm Tr, 41).
10
Kellers are listed in the phone book, they have an answering machine, their neighbor knows at
least where Brenda Keller works, and there was one vehicle parked at the house3 with
Illinois
plates (which Jones could have looked up through the Secretary of State~sOffice), Ryan Jones
made no attempts to locate them except arriving at their house allegedly five times, four days in a
row to see if he could serve
them. Thus, due to WMII’s failure to begin service attempts
sufficiently far in advance to reasonably expect receipt of notice 14 days in advance of filing its
Application, and for its lack of diligence (making no attempts other than coming to the door) in
informing itself as to where and how it could have served Brenda and Robert Keller, WMII’s
attempts to serve the Kellers should be found to be unreasonable, and the IPCB should find that
the Kellers were not served by WMII and, thus the Kankakee County Board lacked jurisdiction
and its decision should be vacated and declared null and void.
(3)
WMJI’s belatedly produced and unserved certified letter to Robert Keller
should not have been admitted into evidence, as
no foundation for its
authenticity was presented and, even
if it is considered, it fails to prove either
receipt
or
recalcitrance
In response to Watson’s Motion concerning defective pre-filing notice, WMII produced
an alleged unclaimed certified letter addressed to Robert Keller (Petitioner’s Exhibit 7B).
Counsel for Watson objected to the admission of Petitioner’s Exhibit 7B, as no foundation was
provided for the alleged certified mailing. (12/05/02 6:00 pm Tr. 155-157). WMII’s affidavit,
tiled as part of its Exhibit 7B, in particular, Paragraph
5,
failed to provide foundation for the
alleged certified mailing, including as simple information as to certification from someone who
says they mailed and from where they allegedly mailed the purported certified letter. Exhibit 7B
is simply a certified mailing that has no actual evidence of ever being actually mailed, and has a
The Kellers have three cars, so one is always parked at the house when Brenda and Robert are at wnrk.
(12/05/02 6:00 pm Tr. 62).
11
checkmark
by “unclaimed” on the green card to indicate that it
was not
picked up by its
addressee.
However, even if the IPCB were to consider Exhibit 73. it is not evidence of pre-filing
notice being received by Brenda or Robert Keller, as it was never received and was allegedly
returned to WMIJ’s counsel. It is not even evidence ofattempted service on Brenda Keller, as it
is addressed only to Robert. And,
it being “unclaimed” is not evidence of either of the Kellers
being recalcitrant, which, as discussed in Section 11I.A(4), below, there is no evidence to support.
Finally, if IPCB concludes that the only date for this mailing referenced by WMII, July 25, 2002.
is the date of mailing (although there is no certification with this information), the timeframe.
approximately 6 days before the deadline for serving pre-filing notice is unreasonable for
arguing “constructive service,” plus, we know the certified mailing in this case was not actually
served. Thus, the ICPB should reverse the local hearing officer’s decision to admit Petitioner’s
Exhibit 7B or, even if the IPCB considers Exhibit 7B, it should find that this Exhibit does not
show and is not evidence of either receipt ofpre-filing notice or recalcitrance.
(4)
There is no evidence to show that either Brenda or Robert Keller
ss’ere
recalcitrant, thus, WMII’s alleged attempt to “post” service is not valid
Although serving pre-filing notice is an absolute requirement, the IPCB appears to have
carved out an exception in the limited circumstance where a recalcitrant property owner attempts
to frustrate a siting process by refusing service prior to the notice deadline, by acknowledging the
possibility of “constructive notice” in those specific circumstances.
See,
ESG Watts, Inc. v.
Sangamon County Board, PCB 98-2 (1999). This possible “exception” to the rule that service
must be through registered/certified mail or in person, is not applicable in this case, as neither
Brenda nor Robert Keller refused service prior to the deadline. Both Brenda and Robert Keller
signed affidavits and testified at he public hearings that they did not refuse service and no one
12
attempted service on them concerning WMII’s August 16, 2002, Application. (12/05/02 6:00 pm
Tr. 60-62,
93,
103; Watson Ex. 5, Aff. Robert Keller (C626)).
Further, Ryan Jones did not present any credible evidence that either Brenda or Robert
Keller refused service. The only thing Mr. Jones mentioned when he was asked this question at
the public hearing, was that he found the unidentified woman to he suspicious. (12/05/02 6:00
pm Tr. 34). However. Jones admitted that he never attempted to serve the unidentified woman.
and, even if he did, it would not be abode or substitute service pursuant to the Illinois Code of
Civil Procedure, as absolutely no woman other than Brenda Keller lived in the Kellers’ home in
2002, and Brenda Keller was not Ryan Jones’ “unidentified woman.” (12/05/02
6:00
pm Tr. 60-
61, 69, 102-103).
Which ever way it is viewed, WMII’s likely claim, that Ryan Jones alleged August 1.
2002, “posting” of service was “in person” service, or that the “posting” was required clue to
alleged (and clearly not shown by the evidence) recalcitrance, must fail. Posting is not only not
“in person” service; it is not compliant with substitute service, which is allowed under the Illinois
Code of Civil Procedure. Further, although there is one IPCB case in which service ~under the
door” is discussed. Waste Management of Illii~pj~jnc.v. Village of Bensenville. PCB 89-28
(August 10, 1989), the IPCB makes no holding as to whether such service is sufficient under
Section 39.2(b), and there is no Illinois Court decision in which “personal service” of a Section
39.2(b) notice was found sufficient by a “posting.”
“Posting” service carries with it no “proof’ that someone received the posting. A
“posting” can be taken with the wind, a person, or some other way, such that the intended
recipient does not receive it. Since a proof of service is the intent (through its plain language) of
Section 39.2(b), “posting” does not meet that requirement. Furthermore, “posting” is not only
13
not “in person” service, and, thus, should not be recognized as a manner for service under
Section 39.2(b) of the Act, particularly since its recognized use in forcible entry and detainer
cases, is provided for, specifically, in statute (Section 10.1 of the Forcible Entry and Detainer
Act). Even if the IPCB,
in arguendo,
were to determine “posting” an acceptable method of
Section 39.2(b) service, the facts in this case do not amount to recalcitrance, which is the only
circumstance wherein posting is allowed. See, Edward Hines Lumber Co. v. Erickson. 29 Ill.
App. 2d 35, 172 N.E.2d 429 (2d Dist. l96l)(service by posting only proper after doing “all that
was possible under the circumstances,” in this case repeated calls and 4 or
5
visits to defendants
home. finally talking to wife of defendant who refused service after she called husband on
telephone). Therefore, WMII’s “posting” should be found to be insufficient under Section
39.2(b).
(5)
WMII’s alleged attempt at service via regular, U.S. Mail, allegedly sent on
August 1, 2002, the day prior to its pre-filing notice deadline, is not
compliant with the notice requirements of Section 39.2(b) of the Act
The IPCB has noted “if mere mailing of...notice were sufficient service, then proof of
mailing would be all that was required to show service and there would be little reason to require
a returned receipt.” ESG Watts, Inc. v. Sangamon County Board, PCB No. 98-2 (1999),
citing
Ogle County Bd. at 196. Thus, any mailing less than certified mailing is not sufficient. Beyond
the plain language of the Act, this further reflects the intent of the legislature to require actual
receipt of notice. Thus, 13.5. Mail is not sufficient for service under 39.2(b), and WMII’s alleged
attempt at such mailing on August 1, only one day prior to its pvc-filing notice deadline, is
woefully inadequate not only in terms of timing, but also in terms of an allowable method to
serve a party under the statute.
B.
THE SITING PROCESS AND RESULTING KANKAKEE COUNTY BOARD DECISION
WERE FUNDAMENTALLY UNFAIR AND THIS MATTER SHOULD BE REMANDED
14
FOR A NEW HEARING
The siting process and decision of the Kankakee County Board approving WMII’s
Application were fundamentally unfair for several reasons, individually and collectively: (1) the
complete Application, most notably WMII’s operating record required to be filed pursuant to Section
39.2(c) and an exhibit (the property value protection plan) to the host agreement, was unavailable for
review at the Kankakee County Clerk’s Office until, at least, the first day of the public hearing.
Next, (2) the decision of the Kankakee County Board and the public hearings were fundamentally
unfair, as they relied on the perjured testimony of WMII’s Criterion 3 witness, Patricia Beaver-
McGarr and the proceedings were rendered fundamentally unfair when WMII failed to produce Ms.
Beaver-McGarr’s diploma (which it could not produce, because Ms. Beaver-McGarr did not have a
diploma) and failed to produce Ms. Beaver-McGarr for further questioning. Third, (3) the Kankakee
County Board predetermined and prejudged its approval of WMII’s proposed landfill expansion.
essentially treating it as a formality in furtherance of the Kankakee County Solid Waste Plan and
I-lost Agreement.
Finally, (4)
exparte
communications between attorneys for WMI! and Kankakee
County prior to the final decision of the Kankakee County Board rendered the proceedings
fundamentally
(I)
unfair.
WMIJ’s Complete Application Was Not Provided To the Participants Or
Properly Made Available For Public Review En Violation of 415 ELCS
5139.2(c)
and rendered the
proceedings fundamentally unfair
Section 39.2(c) of the Act provides an applicant must file a copy of its request and “all
such documents or materials on file with the.. governing body of the municipality shall be
made available for public inspection
(415 ILCS 5/39.2(c))(emphasis added). This explicit
language has been strictly construed by the JPCB and Illinois Courts, in determining that
unavailable documents filed with the governing body of the municipality render the process
15
fundamentally unfair. In this ease, not only was the site’s IEPA operating record unavailable to
the public, an additional section of the Application (namely the property value protection plan
which should have been an exhibit to the host agreement) was not provided to the participants
and the Hearing Officer until after the hearings had started. Because of these errors, the public
and participants did not have the full filing to hearing time (minimum of 90 days) available to
them to review this mass of materials, and were prejudiced such that siting hearings in this
matter were fundamentally unfair.
The IPCB has followed a strict reading of the clear statutory language in Section 39.2(c).
For example, in Residents Against A Polluted Environment v. County of LaSalle, PCB No. 96-
243 (September 19, 1996), a local county ordinance required applicants io disclose financial
information to the county, and provided that such information could remain confidential upon
request. The volume of the application file which contained financial information, was not
provided to the public or County Board members, pursuant to the local hearing officer’s order
requiring it to be kept confidential.Id. As “section
39.2(c) provides no exceptions to its
mandate that
all
documents filed with the county board be available for public inspection.” the
IPCB held that withholding this volume of the application was inconsistent with the Act and
rendered the proceedings fundamentally unfair. Id. (emphasis in original).
Additionally, in American Bottom Conservancy, petitioners were unable to review any
part of the siting application until two weeks prior to the hearing. PCB 00-200 (October 19,
2000). The IPCB again cited Section 39.2(c) ofthe Act and found the fact scenario in American
Bottom Conservancy fundamentally unfair and prejudicial to petitioners. Claims that petitioner
should have “asked around” the Village Hall were dismissed by the IPCB, which stated,
“petitioners and members of the general public should not be forced to inquire of every person
16
in and around the Village Hall in order to examine a siting application.”
W.
Furthermore, the
IPCB noted the “clerk has a full time job” and cannot avoid its statutory obligation to provide the
documents to the public,
Id. Accordingly, the IPCB found this prejudiced the petitioners. Id.
Unavailability of the record is also of great concern, if the decision makers do not have
an opportunity to review the complete record. In Ash v. Iroquois County Board. the standard for
determining if the County Board adequately considered the evidence was articulated. PCB No.
87-29 (July 16, 1987). Although the IPCB can not inquire into the niind of the decision maker,
whether the transcripts and application materials were reasonably available to provide the
decision maker an opportunity to review them and whether the decision maker was sufficiently
exposed to the record to support a finding the evidence is to be considered. Id. Because the
transcripts of the hearings in Ash were not made available to the county board until immediately
before the meeting which the board voted on approval, the IPCB found there was no reasonable
opportunity to consider the record and the proceedings were found to be fundamentally unfair.
Id.
The record and recent hearings in the instant matter are replete with evidence the
complete application was not properly available for public inspection and, pursuant to the
aforementioned IPCB opinions, the hearings should be found fundamentally unfair.
The
following testimony is clear evidence the application was not properly available and the
Kankakee County Clerk did not meet his statutory obligations:
• Kankakee County Clerk Jeffery Bruce Clark testified in his deposition that he was
responsible as keeper of the records for County Records and all records filed with the
County Clerk’s Office. (Clark Tr. 8).
• Mr. Clark’s office was responsible for receiving the Application and making it available to
the public. (Clark Tr. 16, 21).
• Because of the volume of the documents expected to be filed in the local level siting
17
proceeding, Mr. Clark designated ç~~Jythree or four of his ten staff members to accept
WMIJ documents. (Clark Tr.28).
• Mr. Clark noted if someone came
in to review the \VMH documents and asked for all of the
WMII’s application or documents on file, his office should have made the three-ring
binders, maps, and boxes ofdocuments available, (Clark Tr.37-38).
• Mr. Clark does not know if those responsible for accepting documents would know the
boxes containing the operating record were part of the Application, further, the six
employees not specifically assigned to the materials would “probably not” have gotten
instruction that the boxes were part of the application and “quite possible” they
would not know even about the three-ring binders. (Clark Tr. 4I)(emphasis added).
• Mr. Clark admits that his office would not have been doing its job if someone requesting
the Application had received only the three-ring binders. (Clark Tr. 39)(eniphasis added).
•
Ester Fox has been Chief Deputy County Clerk of Kankakee County for 15 years. (Fox Tr.
4).
As Chief Deputy, Mrs. Fox must fill-in for the Clerk when he is absent and is
ultimately responsible for everything in the office. (Fox Tr. 5). As sLich. she ~as one of
the staff designated to handle the WMII documents. (Clark Tr. 28).
• Mrs. Fox testified about the October 9, 2002 visit by Mr. George Mueller, counsel for
Petitioner Merlin Karlock, where he requested review of the Application. (Fox Tr. 7). Mrs.
Fox recalled providing Mr. Mueller the two binders and, after searching the office at Mr.
Mueller’s request, the maps, and represented these were all of the materials on file. (Fox
Tr. 8). Ms. Fox’s representation to Mr. Mueller was
not accurate, as legal boxes filled
with WMII’s operating records at the site were allegedly also filed with the Clerk’s Office.
In fact, Mrs. Fox was not made aware of the additional documents known as the operating
record until the first day of the hearings and, to her knowledge, the operating record was
not made available to anyone prior to the first day ofthe hearing. (Fox Tr. 11).
• Additionally, Michael Watson visited the Kankakee County Clerk’s Office on October 22,
2002 and November 21, 2002, to review the Application, Operating Record and receive
complete copies of the re-filed application. Watson Written Comment Ex. 0 (C 1837-2204).
Mr. Watson specifically requested all documents filed by WMII. Id. The clerk Mr. Watson
spoke with showed him the two volume, bound Application filed by WMII in this matter,
and told him that those two binders were the total extent of the documents available. Id.
• Further, Daniel J. Hartweg. an attorney for petitioner Michael Watson visited the County
Clerk’s Office to review the Application and Operating Record on November 15, 2002. He
requested review of the Application and Operating Record and was given a copy of the
application after being referred through two staff members, eventually to a supervisor.
Watson Written Comment Ex. P (C 1837-2204). Two additional staff members were
questioned regarding the availability of IEPA Operating Records by Mr. Hartweg, however
they were unaware of any additional available documents and Mr. Hartweg was never
given the WMII operating record to review..
18
• Finally, Darrell Bruck was able to see the operating record, when he requested the
entire application, but only on the first day of the public hearings, and after a clerk
who had attended the public hearing and heard the participants raise this issue
returned to the Clerk’s Office.
Mr. Bruck provided public comment during the IPCB
hearing regarding his attempts to review the Application at the County Clerk’s office.
(IPCB Hearing Tr.
5/5
p12-13). On the first day of the hearings. Mr. Bruck asked several
employees, including Deputy Clerk Ester Fox, to review the Application, however it
appeared information on where the Application and operating record were located was not
told to all employees as he waited 10-15 minutes before “Dan” appeared at the office and
was able to show him the Application. (IPCB Hearing Tr. 5’6 p12-13). “Dan” had
attended the public hearings earlier that day, where the issue of unavailability of the
operating record was raised. When he returned to the Clerk’s Office, Mr. Bruck was
coincidentally still there, and “Dan” was able to help the other Clerks locate the
operating record for Mr. Bruck.
Mr. Brick admitted he viewed the Application at this
time, but expressed his concerns that he had to ask numerous employees over the course of
10-15 minutes
before someone with knowledge of the Application finally appeared. (IPCB
Hearing Tr. 5/6 p14).
Based on this extensive testimony. clearly the Kankakee County Clerk did not meet its
obligations required by Section
39.2(c).
In fact, the staff, including County Clerk Jeffery Bruce
Clark, was woefully uninformed regarding the Application materials. This resulted in the
operating record (contained in legal sized boxes) being unavailable to everyone who requested
them, including those people who requested them from multiple people within the Clerk’s
Office, until the first day of the public hearings. Like American Bottom Conservancy, clearly
the Kankakee County Clerk did not meet its duties pursuant to the Act. Unlike American
Bottom Conservancy where the unavailable documents were made available to the petitioner two
weeks prior to the first hearing, in this case, the unavailable documents (which were quite
voluminous) were not made available at the Clerk’s Office until the first day of public hearing,
Participants and members of the public alike were not granted access to various portions of the
Application and properly prepare for the hearings.
Of additional concern is the fact that Exhibits Al and A2 to the Host Community Benefit
Agreement were not included in the “official copies” of the Application presented to the
19
Participants. Jt became apparent during the course of the public hearings that other than the
Applicant and attorneys for the County, none of the participants, including the local Hearing
Officer, had a copy of Exhibits Al and A2. (11/21/02 9:00am Tr. 92-96). These exhibits were
essential to the proceedings. because they contain what is purported to be WMII’s property value
protection plan and, thus, relate not only to the host agreement (which is required by 39.2 to be
disclosed), but also to Criterion 3.
Although the County Board’s attorney represented that the County Clerk had a copy of
those Exhibits in the Application (11/21/02 9am Tr. 96), the participants were seriously
disadvantaged, because the County Clerk had represented to, at least Mr. Watson (and obviously
others, who had incomplete copies of the Application) that “official” copies of the Application
were maintained at Adcraft Printers, Inc. (Watson Summary, Ex. 0 (C 1837-2204)). However.
Adcraft did not have the Exhibits that were missing from everyone’s but the County’s and
Applicant’s copies of the Application. Id. Additionally, although it was represented at the
hearing that these exhibits were included in the re-filing of the Application, and thus, presumably
not in the original Application, when Mr. Watson went to the County Clerk’s office after the
August 16, 2002, filing, and asked what
new documents were filed, he was told
~fflynew proofs
of pre-filing notice were filed in addition to the previously existing and filed Application. Id. As
in Residents Against a Polluted Environment and American Bottom Conservancy, these missing
materials prejudiced the participants as they could not properly review the complete Application
in preparation for the hearings.
Finally, as additional evidence of unavailability of records, in general, County Board
Members Whitten and Wilson testified about the materials made available to them to review
during the local hearing process. Mr. Whitten testified that the only documents made available
20
to him from the time of filing to the time he made his decision. were the Host Agreement and
transcripts. (Whitten Tr. 24-25). Additionally. Mr. Wilson testified he had an opportunity to
review the “two volumes of stuff’ that everyone could pick up and made his decision when he
voted on the Application based on this review. (Wilson Dep. Tr. 18). Finally, neither WMII, nor
the County provide any evidence that the entire record was made available for the Couiuy Board
Members’ consideration.
In this matter, the Petitioners and other were prejudiced by the unavailability of the
operating record, the property value protection plan, and of the entire record to the County
Board. The IEPA operating record and property value protection plan is of the utmost
importance to many of local residents, particularly those like Watson, with property and his
living quarters situated adjacent to the proposed landfill expansion. Accordingly, pursuant to the
Act and the holdings in Residents Against a Polluted Environment and American Bottom
Conservancy, the siting hearings were fundamentally unfair and should be remanded. with
instructions to the Kankakee County Clerk concerning institution of a procedure to assure that
the record (including, but not limited to the Application and operational documents) is available
to everyone who requests it.
(2)
The decision of the Kankakee County Board and the public hearings were
fundamentally unfair, as they relied on the perjured testimony of WMII’s
Criterion 3 witness, Patricia Beaver-McGarr and WMII failed to produce
Ms. Beaver-McCarr’s diploma and failed to produce Ms. Beaver-McGarr
for further questioning
The fundamental fairness issues concerning Ms. Patricia Beaver-McGarr’s testimony not
only concerns the fact that her entire testimony was fundamentally unfair, since she perjured
herself and, thus her testimony should not have been considered and relied on by the Kankakee
County Board; but also, from a hearing procedural perspective, that Petitioner Watson was
21
denied the opportunity to finish his examination of Ms. Beaver-McGarr. As a result of not being
able to complete cross-examination of this
witness,
based on WMII’s representation (that was
later retracted when WMII could not produce a diploma for Ms. Beaver-McGarr) that it would
produce Ms. Beaver-McGarr and/or a certified copy of her degree at a later time during the
hearing, Watson was denied due process.
Ms. Beaver-McGarr swore, under oath, among other things, that she obtained from Daley
Colleges. No subpoena powers are provided for in the local-level siting process, therefore,
However,Petitioner WatsonWatson didwassubpoenanot
able
thoseto
obtainrecordsMs.
inBeaver-McGarr’sthis proceeding,
Daleyand
at
Collegethe
IPCBrecordspublic hearingbelow.4
admitted them into evidence, as an offer of proof, through the testimony of Ms. Mary Ann
Powers of Dalev College. The result is clear and uncontested evidence that Ms. Beaver-McGarr
lied, under oath, concerning
her credentials. The basis of the IPCB Hearing Officer’s ruling to
grant WMII’s Motion in
Limine
and exclude the evidence concerning Ms. Beaver-McGarr’s
perjury, was in error, and thus, should be reversed and the testimony of Ms. Powers and exhibits
admitted during such testimony should be admitted into evidence. The IPCB Hearing officer, in
denying the admission of this evidence, held that the IPCB does not reweigh the credibility of
witnesses. While that is true, it is not a complete articulation of the rule of law. The Illinois
Supreme Court, provides that a court should defer credibility determinations to the trier of fact
unless such determinations are against a manifest weight of the evidence. Eychaner v.
Gross, et
aL.
202 Ill.2d 208, 779 N.E.2d 1115, 1130 (S.Ct. 2002). Therefore, the evidence should have
been admitted, because perjury must render
a determination of credibility against the manifest
weight of the evidence.
Watson
did, however, seek voluntary production of these records from WMII and was denied such production.
(Watson written comment, Exhibit H, C***).
22
a.
Kankakee
County’s decision is fundamentally unfair, since it was
allowed to consider and relied on perjured testimony
Ms. Patricia Beaver-McOarr repetitively swore, under oath, that her qualifications were
accurately represented and that she had a degree from Daley College: her curriculum vitae in the
Application contains a certification that it is true and correct; she testified in this and at least one
other proceeding that her curriculum vitae was true and correct (when they were different
curriculum vitae); and she testified in this proceeding, not only that she had a degree and
diploma from Daley College, but that it was
in her attic. (Application, Criterion 3; Watson
Exhibit 7
(C630);
11/19/02 6:50pm Tr. 5-9, 36-37; Watson Written Comment
(C1854-1857);
Watson IPCB Hearing Exhibit 6; 11/20/02 9:00 am Tr. 13-14). Additionally, Ms. Beaver-
McGarr represented that she could, and ~ouldget a copy of her diploma and present it at the
hearings. (11/19/02 6:50pm Tr. 37). Obviously, this never occurred.
During the course of the public hearings, three curriculum vitae for Ms. Beaver-McGarr,
all representing different qualifications, were admitted. Her curriculum vitae that was part of this
Application represents that Ms. Beaver-McGarr obtained an Associates Degree from Richard
.1.
Daley College in 1981. (Application Criterion 3,
Section Cl). The second, represented that Ms.
Beaver-McGarr obtained that degree in a different year, namely. 1980. (Petitioner’s Exhibit 6).
The third, represented that Ms. Beaver-McGarr obtained an associates degree from DePaul
University (which does not offer such degrees) and is silent in 1980/1 concerning Daley College.
(Watson Exhibit 6, C630).
During the IPCB public hearing, as part of an offer of proof on this
issue, Watson
subpoenaed and called Mary Ann Powers Richard
J. Daley College Supervisor of the
Admissions and Marketing Office to testify. Ms. Power’s confirms Ms. Beaver-McGarr’s
perjury. Ms. Powers has been the Supervisor of Admissions and Marketing Office for
23
approximately ten years and her responsibilities include maintaining records, graduation roster
and everything involved in the records and admissions office. (IPCB Hearing 5/6 Tr. 61).
Approximately one year ago, Mr. Powers was asked by Ms McGarr to research the school’s
records to determine
if she had graduated from Daley College. (IPCB Hearing
5/6
Tr. 61-62).
At this time Ms. Powers informed Ms. Beaver-McGarr that she had not graduated. (IPCB
Hearing
5/6 Tr. 61-62, 68). in 1980, 60 credit hours were required to graduate and Ms. Beaver-
McGarr had acquired
57
hours, thus she was not entitled to a degree. (IPCB Flearing
5/6
Tr. 63-
65). Ms. Powers provided Ms. Beaver-McGarr a copy of her transcript and explained that with
two incomplete classes, she did not graduate.
(IPCB Hearing 5/6 Tr.
68, 83). Ms. Beaver-
McGarr understood this, stating so to Ms. Powers, and asked Ms. Powers to explain to Ms.
Beaver-McGarr how to change her grades to graduate, which Ms. Powers did. (IPCB Hearing
5/6/03 Tr. 68, 73, 76. 85, 87). However, school records indicate no subsequent attempt by Ms.
Beaver-N4cGarr to change her grades or apply for a degree. j4.
It is clear from this testimony that Ms. Beaver-McGarr did not graduate, knew this as of
the time of the hearings, and has perjured herself on numerous occasions concerning her
qualifications. The use of perjured testimony is fundamentally unfair and
it cannot he
relied upon by a trier of fact. People of the State of Illinois v. Moore. 199 III. App. 3d 747.
557 N.E.2d 537 (l~Dist. 1990). Ii is clear from the testimony and evidence presented,
particularly the testimony and records provided by Ms. Powers (which records include a certified
copy of Ms. McGarr’s transcript, Watson IPCB Exhibit 6), that Ms. Powers actually informed
Ms. Beaver-McGarr that Ms. Beaver-McGarr had no degree (prior to Ms. Beaver-McGarr’s
testimony at the subject public hearings). yet Ms. Beaver-McGarr took the stand, under oath, and
testified not only that she had a degree, but that her degree was in her attic. There is an
24
enormous difference between perjury and credibility. While
judgment on credibility of a witness
is deferred to the trier of fact hearing the initial testimony, however, perjury is against the
manifest weight of the evidence on its face, and must be reviewed on appeal. To hold otherwise,
and to allow
Ms.
Beaver-McGarr’s testimony to stand, would set forth a
policy that lying is
allowed in siting proceedings and an applicant does not have to present appropriately
credentialed witnesses to
be considered, as, so tong as the Local government is accepting of the
perjury, the testimony should be allowed to stand, unchallenged. This is hardly the rule of law in
Illinois.
As a result of Ms. Beaver-McGarr’s perjun. her testimony should have been stricken
during the local public hearings (the motion made by Watson was denied), and since it was not
stricken, and instead was considered and relied on by the Kankakee County Board, the Kankakee
County Board’s decision should be reversed. Without Ms. Beaver-McGarr’s testimony, WMII
simply does not meet Criterion 3 and, therefore, since Ms. Beaver-McOarr lied about her
qualifications (which forms the basis for admission of an expert’s testimony). her testimony
should be stricken and the Board’s decision reversed as against the manifest weight of the
evidence.
b.
The public hearings were fundamentally unfair, as Watson was denied the
opportunity
to finish his
examination of Ms. Beaver-McGarr and, as a
resalt, denied due process
Petitioner Watson
was denied the opportunity to finish his examination of Ms. Beaver-
McGarr and, as a result, denied due process, based on WMII’s representation, that was later
retracted when WMII could not produce a diploma for Ms. Beaver-McGarr, that it would
produce Ms. Beaver-McOarr and her
diploma at a later time during the hearing. Upon Ms.
Beaver-McGarr representing that she could not find her degree, WMII responded that it would
25
produce a certified copy of Ms. Beaver-McGarr’s degree. (11/20/02 9am Tr. 13-14). The local
hearing officer further directed counsel for WMII to obtain a certified copy of Ms. Beaver-
McGarr’s degree, or in the alternative recall Ms. Beaver-McGarr for additionaL cross-
examination. (11/20/02 9am Tr. 14-1
5).
Despite Watson’s repetitive requests during the course
of the public hearings for the production of the certified degree or Ms. Beaver-McGarr for
further cross-examination, neither was produced.
(E.g.,
11/20/02 9:00 am Tv. 15; 12/04/02
6:00pm Tr. 52-53; 12/05/02 6:00pm Tr. 164; 11/19/02 6:50pm Tv. 37) Additionally, at the end of
the hearings, when it became apparent that WMII was retracting its promise to produce the
certified degree and ignoring the local hearing officer’s direction to produce such certification or
Ms. Beaver-McGarr, Watson asked for Ms. Beaver-McGarr to take the stand. The hearing
officer denied Watson’s request. (12 05/02 6:00 pm ‘Fr. 164-165).
This denial, and WMII’s
retraction of its representation that it would provide either the certified degree or Ms. Beaver-
McGarr, resulted in the cross-examination of Ms. Beaver-McGarr being prematurely terminated
and deprived Watson of his right to cross-examine this witness concerning her qualifications, an
issue at the crux of whether her testimony is credible and whether she is qualified to testify as the
expert she purported to be.
(3)
The Kankakee County Board predetermined and prejudged its approval of
WMIL’s proposed landfill expansion, essentially treating it as a formality in
furtherance of the Kankakee County Solid Waste Management Plan and
Host Agreement
The Kankakee County Solid \Vaste Management Plan (SWMP) and Host Agreement
evidence a clear understanding that \VMII’s proposed expansion was identified as the only
landfill in Kankakee County and WMJI was identified as its only operator, prior to siting ever
being approved and, in fact, prior to the Application being filed. The IPCB Hearing Officer
barred all discovery and testimony concerning the SWMP (not the Host Agreement), and its
26
amendment. However, evidence was presented as an offer of proof All evidence concerning the
SWMP discussed and cited to below was presented as an offer of proof Petitioner seeks the
IPCB Hearing Officer’s
ruling barring this evidence to be reversed and for this evidence to be
considered.
The standard in evaluating whether a siting authority’s hearing and decision should be
vacated due to bias or prejudice is if a “disinterested observer might conclude” that the County
Board had “in some measure adjudged the facts as well as the
law of the case in advance of
hearing it.” F & F Hauling, Inc. v. Pollution Control Board, 116 III. App. 3d 586, 451 N.E.2d
555 (2d Dist. 1983),
citing,
Cinderella Career & Finishing Schools. Inc. v. F.T.C., 425 F.2d 583
(D.C. Cir. 1970),
qff’a’.
107 Ill. 2d
33, 481 N.E.2d 664
(1985).
The facts in this case however show not only a “mere disposition” and prejudgment of
the Kankakee County Board, but actual obligations to approve the Application and a lack of
evidence in support of the statutory criteria. The October 200! Amendment to the SWMP
identified the County’s desire to expand the Kankakee Landfill. Resolution No. 01-10-09-393.
This Amendment provided further language that the County would not support, and in fact
would affirmatively contest, any other proposed landfill in the County. The 2002 Amendment to
the SWMP further limited the scope of the County’s planned activities citing WMII as the
current, and assumed future operator ofthis single landfill. Resolution No. 02-13-12-481.
The SWMP clearly identifies the County s intention to expand the Kankakee Landfill and
maintain WMJI as its sole provider of landfill services, The County Board has gone beyond
public pronouncements regarding
its acceptance ofthe landfill expansion, however, and with the
Host Agreement, accepted accelerated payments for the expansion which was not yet approved
at the time ofthe Host Agreement or the time at least one of the advance payments were made.
27
Financial concerns of the County were clearly and admittedly the primary concern in negotiating
the Host-Fee Agreement with WMII. (Whitten Tr. 20; Lee Ti. 67-69; Graves Tr. 14; Wiseman
Tr. 7, 21). Additionally, unlike other host agreements considered in JPCB or Court decisions
concerning pre-judgment or bias, the time of the hearings, the County had already received
$500,000.00 and additional considerations, such as payments for squad cars, and were to receive
an additional $500,000.00 in 2003 pursuant to the Host Agreement. (Lee Tr. 67). These were
“accelerated payments” for approval ofthe expansion and/or landfill expansion fees. (Lee Tr. 67-
68).
Further, in this case, one County Board Member admitted his understanding that WMIT
and its expansion was already a “foregone conclusion.” (Martin Tr. p.IO-l2, 15). Mr. Martin
stated that he shared this understanding with other Board Members around this time and that they
agreed with him. Id. at 12.
Thus, in consideration of the combination of: the SWMP’s pronouncement that WMII’s
proposed expansion,
i.e,
the expansion of the Kankakee County Landfill would be the
cnii
landfill in the County (which is pre-approval of the site location, at a minimum, and thus.
prcjudgment of the location portion of Criterion 2 and of Criterion 3); the SWMP’s
announcement that WMII would be the only operator of that landfill (prejudgment of the
operation portion of Criterion 2, and Criterion 5); and payment of over $500,000 pre-siting
decision, as part of a host agreement, at a minimum, shows that the Kankakec County Board pre-
judged the location and operation related Criteria of Section 39.2 and, thus, rendered the
proceedings and its decision fundamentally unfair.
(4)
Improper
Ex Fade
Communications Between WMH and the County Prior to
the Decision of the Kankakee County Board Violated Fundamental Fairness
28
Finally,
ex
pane
comments between attorneys for the County and WMIJ rendered the
proceedings fundamentally unfair. An
ex pane
communication occurs without notice and
outside the record between a decision maker and an interested party for the benefit or on behalf
of one party only. Waste Management v. Pollution Control Board, 175 Ill. App. 3d 1023. 1043.
530 N.E.2d 682 (2d Dist. 1988). Tn determining
if
cx pane
contacts violated fundamental
fairness, however, a court must consider whether the ultimate decision making process was
tainted. E&E HaulinQ. 116 III. App. 3d
586,
606-607. A number of considerations may be
relevant in this determination; “whether the contacts may have influenced the agency’s ultimate
decision; whether the party making the improper contacts benefited from the agency’s ultimate
decision; whether the contents of the communications were unknown to opposing parties, who
therefore had no opportunity to respond; and whether vacation of the agency’s decision and
remand for new proceedings would serve a useful purpose.” j4,
citing,
PATCO v. Federal
kg~pLAuthorit,685 F.2d 547, 564-65 (D.C. Cir. 1982).
The IPCB has held that communications between attorneys, and not the parties
themselves, can rise to the level of improper
exparie
contacts. Citizens Opposed to Additional
Landfills v. Greater E~vptRegional Environmental Complex, PCB No. 97-29 (December 5.
l996)(C.O.A.L.). The scenario in this case is strikingly similar to the instant matter. In
C.O.A.L., after the public hearing, before the governing body’s siting decision, without public
notice, and outside the record, the attorney for the governing body and the attorney for the
applicant discussed potential conditions to siting. Like C.O.A.L,, in this case, after the public
hearings, in January 2003 prior to the decision by the Kankakee County Board, without public
notice, and outside the record, the attorney for the Kankakee County Board (Elizabeth Harvey)
and the attorney for \VMII (Donald Moran) communicated regarding conditions that the
29
Kankakee County Regional Planning Commission proposed to the County Board. (WMII’s
Answers to Interrogatory No. 15 propounded by Michael Watson, submitted at hearing pursuant
to an offer of proof which it is requested that the IPCB reverse and admit this document into
evidence’).
County Board Member Whitten substantiated this communication between Ms. Harvey
and Mr. Moran, when he testified that it was his understanding that “all give and take” between
the County and VIM!! occurred before the date of the County’s decision on siting, and that he
understood that Ms. Harvey was the source of the information that WMII was in favor of the
Planning Commission’s proposed conditions. (Whitten Tr. 17, 24-25). Mr. Whitten. however,
did not have a specific recollection of Ms. Harvey telling him WMII agreed to the conditions,
and other than his understanding was not able to point to specific facts to support his testimony.
(Whitten Tr. 32).
In addition, subject to an offer of proof~Kankakee County Board Chairman Karl Kruse
testified that he communicated with the attorney for the County (Charles Helston), between
March 2002 and January 31, 2003 regarding the Amendment to the SWMP. (Kruse Dep. Tr..
40). Although an amendment to the SWMP is not, necessarily, related to anything to do with the
proposed site, in this case, the amendment was intended that the County only wanted WMII’s
Kankakee Landfill to be the only expansion or new landfill in the County. Additionally, County
Board Member Martin testified regarding communications of Mr. Helston with WMII regarding
the proposed conditions prior to January 31, 2003. (Martin Dep. Tr. p.23-24). These contacts are
of particularly heightened concern when
considering improper contacts, especially in light of
Copies
of both
the WMII
and Kankakee County Answers to Interrogatories were entered
as
offers of proof at
the
IPCR Hearing as Watson Exhibit
3.
(Tr. 5/5 p140-141).
30
Dale Hoekstra of \VMII’s reference to Mr. Helston as “our attorney” when discussing the
negotiation of the Host Agreement. (Hoekstra Tr. p. 47).
Therefore. as a result of the individual and collective issues presented above, the IPCB
should find that the Kankakee County Board’s decision and the local public hearings werer
fundamentally unfair, and remand this proceeding for new hearings and decision by the
Kankakee County Board.
C.
THE KANAKAKEE COUNTY BOARD’S DECISION TO CONDITIONALLY
APPROVE THE PROPOSED LANDFILL EXPANSION IS AGAINST THE
MANIFEST WEIGFIT OF THE EVIDENCE
WMII failed to meet its burden of proof with respect to Criteria 1, 2, 3,
5,
6, 7 and 8.
Although Kankakee County’s decision approved the proposed site, with conditions, presumably
an applicant has to meet the statutory Criteria, without the necessity of the conditions being
imposed. In other words, conditions certainly can be imposed to assure that an applicant who
has met its evidentiary burden of proof continues to meet it throughout the development and
operation of the proposed facility, however, what about the applicant who doesn’t meet its
evidentiary burden of proof, can the governing body impose conditions so thrn the statutory
criteria or preconditions have been met? In either case, the evidence presented by WMII does
not meet the aforementioned Criteria and, even if the Kankakee County Board is allowed to
~‘patch”the evidentiary holes to meet the Criteria, it’s patches do not cover the evidentiary gap
needed to be filled in order for WMII to met the criteria.
(1)
The Kankakee Count’v Board’s Decision as respects Criterion
I (Need) was
Against the Manifest Weight of the Evidence
The
first listed
Criterion under section 39.2 requires
the applicant demonstrate “the
facility is necessary to accommodate the waste needs of the area it is intended to serve.” (415
ILCS 5/39.2(a)(i)). In this case, WMII did not provide sufficient, clear evidence to establish a
31
prima facie showing that a 30 million ton expansion of the Kankakee Landfill was necessary.
The evidence presented by WMII was inconsistent, speculative, biased, such that the Kankakee
County Board’s was against the manifest weight of the evidence.
At least one Illinois Court has meeting the need Criterion does not require the applicant
to demonstrate absolute necessity, but rather, must requires a demonstration of expediency,
indicating some urgency in need, Clutt’s v. Beasley, 185 Ill.App.3d
543,
546, 541
N.E.2d 844.
846 (5th Dist. 1989). To show that a proposed site is reasonably required by the waste needs of
the area, an applicant must take into consideration the waste production and disposal capabilities
of the proposed service area. Waste Management of Illinois, Inc. v. Pollution Control Board,
175 Ill. App. 3d 1023. 1031, 530 N.E.2d 682, 691 (2d Dist. 1988): Waste Management of
Illinois. Inc. v. Pollution Control Board, 122 III. App. 3d 639, 645, 461 N.E.2d 542, 546 (1984).
Furthermore, it has been found appropriate to consider facilities outside of the service area and
proposed facilities that would be capable of handling a portion of the waste disposal needs of the
service area in determining need. Waste Management (1988), 175 III. App. 3d at 1032.
Although a “black line” threshold for need has not been established by the statute,
regulations or case law, two of the aforementioned cases highlight a certain range and analysis
that would allow a siting authority to determine that need was reasonably established. In Waste
Map~g~rn_ent(1984), the Third District upheld the local siting authority’s decision that \Vaste
Management had not demonstrated need for the proposed expansion of their existing Will
County ESL Landfill. 122 Ill. App. 3d 639, 645, 461 N.E.2d 542,
546
(3d Dist. 1984). In this
case, the IPCB had accepted the County’s determination that 10-years remaining capacity was
provided by existing facilities in the area, thus the expansion was unnecessary. Id. at 641. The
IPCB found, and the Appellate Court agreed, that the applicant’s arguments were “generalized
32
and incomplete.” Id. at 643. Only some of the potential alternate sites remaining capacity was
included and only general discussions on potential increased hauling cost information was
presented. Id. The applicant failed to include a landfill that had been issued a developmental
permit as well as an experimental operating permit and several special and hazardous waste
facilities outside of the service area. Id. at 641-645. Because it was reasonable to expect these
facilities would remain open and continue to collect from the service area, the Court found these
sites and hard data concerning proposed service areas should have been included in the need
calculations. Id.
Likewise, in Waste Management (1988), the applicant failed to consider landfills located
near the service area. 175 III. App.3d 1023, 530 N.E.2d 682 (2d Dist. 1988). Furthermore,
additional landfills planned for future development which would provide additional capacity
were not included. Id. Although the court noted neither the Act nor the established law
suggested need be determined by application of an arbitrary standard of life expectancy, it
opined “the better approach is to provide for consideration of other relevant factors such as
future development of other sites, projected changes in amounts of refuse generation within the
service area, and expansion of current facilities.”
~.
Both of the prior cases distinguished the finding of need in E & E Hauling, Inc. v.
Pollution Control Board, where even though the service area had an existing nine-year capacity,
the court found need had been established. 116 Ill, App. 3d 451, N.E.2d
555
(2d Dist. 1983),
nff’d
107 III. 2d
33. 481 N.E.2d 664 (S.Ct. 1985). In distinguishing the case, both Waste
Management courts found that a determination of need must be viewed with respect to the facts
in the case. 175 Ill. App. 3d 1023, 1033-1034, 530 N.E.2d 682, 691 (2d Dist. 1988); 122 Ill
.App. 3d 639, 645, 461 N.E.2d 542, 546 (3d Dist. 1984). The major difference between the cases
33
was that in E
& E Hauling,
no other permitted facilities existed and no other facilities were slated
to be opened in the intended service area. 175 Ill.App.3d at 1033, 530 N.E.2d at 691; and 122
Ill. App. 3d at 644-645, 461 N.E.2d at 546,
citing
E & E Hauling, 116 111. App. 3d at 608-609,
451 N.E.2d at 572-573. Thus, the court considered not only the life expectancy of current
facilities, but additional factors and likely disposal options in affirming the denial of the
expansion.
In the instant matter, only one witness testified for WMII in support of the Criterion. Ms.
Sheryl Smith, who also prepared a written report, titled, Need for the Kankakee Landfill
Expansion (Application, C1-2).
Ms. Smith’s testimony and report are replete with
inconsistencies and unfounded claims. Different bases, and within these bases. incorrect rates,
for recycling were utilized for the different counties in the service area resulting in a drastic
overstating of waste generation and need. Additionally, several permitted facilities were left out
of the available capacity calculations without an established basis for doing so. violating the
requirement established in Waste Management (1984) that an applicant must provide a complete
and specific analysis. Further, even if the IPCB found a capacity shortfall before 2028. agreeing
with WMII on the asserted need for the proposed expansion, the numbers do not compute to the
30 million ton capacity sought by WMJI. Accordingly, the IPCB should find that the Kankakec
County Board’s decision, as respects Criterion 1, is against the manifest weight of the evidence
and reverse that decision. Alternatively, even if the IPCB finds that there is some capacity
shortfall adequately shown by the evidence, then the IPCB should find that the Kankakee County
Board’s determination that there is a need for a 30-million ton site is against the manifest weight
of the evidence, and it should reverse the County Board’s decision or adjust the volume of the
proposed site to coincide with the need determined to be shown.
34
a.
WMII overstated waste generation totals for the service area
by utilizing
inconsistent and incorrect recycling data and, thus, did not present a
prima fade case in support ofneed for the capacity it sought
Ms. Smith testified that her methodology for
determining need began with WMII’s
designation of an 11 county service area and proposed operating life of 27 years. (1 l/20~026:00
pm Tr. 10). Ms. Smith calculated the population and waste generation rates in the service area
to arrive at an annual and total 27-year waste generation figure, based on the geographic
boundaries provided by the Applicant and
data provided by the Counties within the service area.
(11/20/02 6:00 pm Tr.12-.13). Her total net waste generation figure, adjusted for recycling, for
the 27-year period. 2004 to 2030, was 186,367,304 tons. (Application, Criterion 1, Table 2).
Ms. Smith determined the service area, with no additional capacity added, has available capacity
for her generation calculations until 2011. (Application, Criterion 1 Report p. 34).
However, Ms. Smith understated actual recycling taking place in the service area, and
thus, overstated the waste generation in the service area. (11/20/02 6:00 pm Tr. 48-52). If the
actual recycling rates are applied to Ms. Smith’s waste generation numbers, even without any
increases in recycling over 27-years, the result is very different and the waste generation
estimates are much less than what Ms. Smith estimated.
For example, although Ms. Smith used a 40
recycling rate for the City of Chicago
(identified as “Cook (City)” waste in Table 2 of her report), she agreed that in 2000 the City had
a recycling rate of 48, which, if 48 rather than 40 was used as the recycling rate. v~Duld
reduce hcjjy~tc,,gei~erationnumbers for the City of Chicago by 8,449,945 tons. (1 1/20’02 6:00
pm Tr. 47). If the same was done for Kankakee County, another County for which she decided
to utilize a smaller recycling percentage than what is being achieved, (11/20/02 6pm Tr. 50-Si),
it reduces her waste generation figures for Kankakee County by 875.117 tons.
35
Additionally, Ms. Smith’s results must be discounted as she utilized incorrect
calculations, resulting in an additionally overstated waste generation for the service area. For
example. in her report, Ms. Smith notes that Suburban Cook County stated recycling goals of
42 in 2000, 49 in 2010 and 56 in 2020. (Application, Criterion I Report, Table 2 Notes p.
1). However, in Table 2, Ms. Smith utilized rates of 44 in 2004, 45 in 2006, 46
in 2007,
47
in 2008, 48 in 2009, and 49 in 2010 and thereafter. Id. at Table 2. Although earlier
year projections with these numbers end up providing lower waste generation totals than
utilizing the correct numbers, the later, higher generation years are drastically understated by Ms.
Smith’s calculations. As this error was made with respect to the second highest generation rates
in her table, the result is an overstatement of 2.570,479 tons.
It is important to note that Suburban Cook County is just an example, and as noted in
Michael Watson’s Summary of The Siting Proceedings, Proposed Findings and Written
Comments, submitted to the Kankakee County Board (C1837-2204).
Ms.
Smith applies
recycling rates inconsistently in other calculations as well.
These inconsistencies and
inaccuracies in
Ms.
Smith’s calculations, her agreement that the long holding trend has been for
increased recycling, and her agreement that the recycling trend in more than 50 of the
Counties
specifically included in her analysis is for recycling to increase, is evidence that that the
calculations and estimates contained in her report are strained, not accurate. and overstated by a
minimum of 8,449,945 tons.
b.
WMJI a/so understated available capacity for the service area,
arbitrarily overstating need for the expansion
Ms. Smith determined the total disposal capacity currently available (permitted) by
considering 28 existing landfills that accept waste from the service area.
(See.
11/20/02 6:00 pm
Tv. 35-36). Ms. Smith then reduced the capacity available at those facilities, per year, from the
36
reported capacity date of January 1, 2001, to January 1, 2004, and additionally reduced the
available capacity by applying a “waste receipt factor.” There is no reference, study or statistical
support provided by Ms. Smith for her reduction of capacity in this manner and it results in a
reduction of
one half of the available capacity
as of January 1, 2001. Additionally. Ms. Smith’s
application and choice of figure to be applied to such a waste receipt factor, like her “waste
capture” figure, is just a number she decided to apply to the estimates she developed. (See,
11/20/02 6:00 pm Tr. 138).
Although an applicant or local siting authority is not required to examine every
possible
scenario in determining capacity, it is not proper to mischaracterize or ignore available capacity.
but as noted in Waste Management (1988), it is proper to consider all relevant factors affecting
capacity. As in both Waste Management cases, and as opposed to E&E Haulin~z,there are
numerous permitted sites in this case that should have been considered, and were
not
completely
or accurately considered in Ms. Smith’s analysis and testimony.
For example. Forest Lawn
Landfill in Berrien County, Michigan, was dismissed as unpermitted, however this facility was
permitted in July 30, 20002, adding 7,700,000 tons of capacity to the mix. (Watson Written
Comment, Cl837-2204, Exhibit A).
Likewise, Pheasant Run RDF is mentioned in Ms. Smith’s
analysis, however ignored
in capacity calculations, as are Brickyard Landfill and Kestrel Hawk
Park Landfill, together, an additional 11,001,830 tons capacity. Id. Spoon Ridge Landfill is
sited and permitted, but not currently being used, thus, Ms. Smith excluded its 39.500,000 ton
capacity. (11/20/02 6:00 pm Tr. 68-69). Spoon Ridge however is targeted to serve much of the
service area, and Ms. Smith even admitted economics may change to make it a viable option,
nonetheless, it was not included. (11/20/02 6:00pm Tr. 68-71).
37
In summation, accepting Ms. Smith’s utilization of only the 29 landfills, the total
available capacity, considering only the 29 landfills chosen by Ms. Smith as of January 1, 2001,
was 126,209,558 tons. Without the “waste receipt factor,” but including Ms. Smith’s reduction
in capacity between 2001-2004, the total available capacity from the 29 landfills considered by
Ms. Smith for the service area is 89,433,450 tons. However, as discussed above, and fully in
Michael Watson’s Written Comments (C 1837-2204), Ms. Smith did not include all the available
capacity in, or available to, the service area in her capacity calculation. If
this additional
capacity is included, (without including Town & Country Landfill) it brings the total available
capacity to 201,219,388 tons.6
Ms. Smith’s understatement of capacity, when considered in
conjunction with her overstated generation totals, results in a “capacity shortfall” that will not
occur until 2028 and that is less than half the requested 30.000,000 tons sought by WMII for its
expansion. Thus, the
Kankakee County Board’s conclusion that WMII presented sufficient
evidence(2)to show
The
a need
Kankakee
for a 30,000,000-ton
County Board’s
site is
Decision
against the
as
manifest
respects
weight
Criteria
ofthe
2 and
evidence.
5
was7
Against the Manifest Weight of the Evidence
Criterion 2 provides that the “facility is so designed, located and proposed to be operated
that the public health, safety and welfare will be protected.” This Criterion contains three
components: design, location and operation. Criterion
5
provides that he plan of operation for
the facility is designed to minimize the danger to the surrounding area from fire, spills, or other
operational accidents.
The decision of the Kankakee County Board was against he manifest
weight of the evidence regarding both Criteria 2 and 5. In this analysis, since the operational
6 126,209,558
tons as determined by Ms. Smith + 75,009,830 tons from Prairie View, Streator Area #3, Forest
Lawn, Brickyard, Spoon Ridge, Pheasant Run and Kestrel Hawk Park.
(See,
table on p. 7 of Watson’s written
comment, C 1843).
in all fairness, a much smaller capacity total may be necessary for ICankakee County’s waste needs, however, that
is not what was proposed or approved in this expansion.
38
evidence related to Criterion
5
is also related to the operational portion of Criterion 2, they are
both addressed in this section ofthe brief, rather than being duplicated in another section.
These Criteria cannot and should not be considered in a vacuum, they must be looked at
in terms of not only what is stated on paper today, but how it will perform centuries from now.
This expansion, once built, will be a resident of Kankakee County forever. The decision being
made by the County Board is one that will effect every generation living in Kankakee,
particularly those residents living near the proposed facility, forever. One overwhelming theme
of WMII’s presentation on Criterion 2, in addition to the fact that V/MI! designed the landfill
expansion to meet only the minimum Illinois State standards for landfills, is that WMII did not
adequately investigate and failed to address the location of the proposed expansion, as discussed
further below.8 Kankakee County’s conclusion that Criterion 2 was met by WMII. is against the
manifest weight of the evidence, as WMII’s primary engineer testifying concerning the design
and operation of the proposed expansion, Andrew Nickodem, admitted that he did not consider
the location of the facility as a factor of the design (11/21/02 1:45pm Tr. 60-61; 11/22 1:30pm
Tr. p. 11-12). and, additionally, for at least the following reasons, in addition to those articulated
by Petitioner Karlock in his brief (concerning the geology and hydrogeology of the location)9:
Mr. Nickodem, an engineer hired by WMII, testified that he included in the
Application only what was required by Kankakee County’s siting ordinance,
however, he failed to include substantive or meaningful responses to many portions
ofthe siting ordinance. (11/22/02 1:30pm Tr. 15; 11/25/02 9:00am Tr. 14-22).
Despite the fact that Mr. Nickodem admitted that in designing landfill, the designer
need to take into consideration the proposed location ofthe design in order to prepare
that design, when asked what factors he considered in designing the proposed
As a backdrop, when the existing landfills at this location were built, they were allegedly designed and constructed
to meet the minimum standards, and
they have historically, currently,
and will likek continue in the future to lia’~e
problems with migration ofchemicals from the site (be it through leachate or gas).
Petitioner Watson joins and adopts that portion of Petitioner Karlock’s brief concerning Kankakec County’s
decision on Criterion 2 being against the manifest weight of the evidence, on the basis of the geological and
hydrogeological evidence or lack thereof.
39
expansion, Mr. Nickodem, interestingly, did not consider
the location of the facility
as a factor of design. (11/21/02 1:45pm Tr. 60-61; 11/22 1:30pm Tr. p. 11-12).
Although Mr. Nickodem later testified that the hydrogeological investigation was
done prior to his design and that he took this into consideration in his design (11/21
1:45pm Tr. p. 63-64), this statement is not accurate, since Mr. Nickodem finished his
design of the depth and liner of this facility in January 2002, before or at the time the
borings for the hydrogeological investigation were taking place and before the
hydrogeological investigation was concluded (11/21 6pm Tr. 10-11; Application, C2,
Appendix B-I). In fact, during questioning by Mr. Moran, WMII’s attorney, in
further support of the fact that the location wasn’t considered as part of this design,
Mr. Nickodem testified that the geology of the site is not necessary to his opinion that
the design meets Criterion 2, and he testified that the basis for his opinion that the
design meets Criterion 2 is the engineered elements of the design. (11/22 6:04pm Tr.
p. 61; 11/21 145pm Tr. 95).
• Further Mr. Nickodem, did not consider key factors regarding this location.
Mr.
Nickodem testified that he did not consider and did not include in the Application,
the
location of nearby nature preserves in designing the site; whether there was
historical importance to the property on which the landfill was going to expand; and
other requirements set as “location standards” by the State of Illinois, since those.
under Mr. Nickodem’s understanding, were not included in Kankakee’s siting
ordinance (11/22/02 1:30pm Tr. 12-17). Apparently, as discussed under Criterion 8,
below, Mr. Nickodem didn’t read the County’s solid waste management plan, which
requires those items and more to be considered
• Additionally, even though Mr. Nickodem admits that public records used to identify
potable water wells in the area of the expansion are not always accurate, and even
though Mr. Nickodem new of the existence of “something over there” on the East of
the Eastern proposed site property line, he did not investigate whether it was a potable
well and whether his design violated the State of Illinois required setback for that
well. (11/22/02 1:30pm Tr. 27-28).
• It is further disturbing that, the limited information Mr. Nickodem did consider
concerning the location of the nearest
municipal water intake is not accurate.
(11/22/02 1:30pm Tr. 31). In fact, the closest water intake is 7 miles downstream of
the proposed facility.
(See,
Exhibit C. documentation from the Illinois Environmental
Protection Agency, to Watson’s written comment, C***). This water source provides
12.8
million gallons of water a day to an estimated population of 70,000 persons
in Kankakce County.
Mr. Nickodem did not know about this information when he
designed the facility and, the information he did locate after his design of the facility,
was not accurate or, at the very least, was not complete.
• Finally, beyond the location issues identified during the course of the public hearings,
the sutability of this location for the existing landfill has previously been seriously
questioned by personal from or working for the State of Illinois and U.S.
Environmental Protection Agency (U.S. EPA).
(See,
Exhibit D to Watson’s written
40
comment,
C***).
In one of the attached reports, U.S. EPA incorrectly refers to the
existing landfill as “CID Landfill,” however, correctly describes its location in the
text and correctly depicts its location on a map attached to the report. In this report. it
was found that “the landfilled wastes constitute a possible source of contamination for
several migration pathways,” and referenced the inspector’s observations of leachate
seeps at the site with concerns that “run-off from the site is captured by an
intermittent stream that flows 0.75 miles to the Iroquois River” and that there are two
water intakes 7.5 miles downstream serving over 50,000 people. Additionally, the
report notes that the Iroquois and Kankakee Rivers are designated as fisheries, and
several sensitive environments and wetlands are located along both rivers.
• One of the “engineered elements” of the design is the leachate collection system. The
depth of leachate that is allowed to collect at the bottom of the landfill needs to be
limited to no more than one foot, as the depth ofleachate creates a force that can push
the leachate through potential defects in the liner. (1/21/02 1:45pm Tr.
65-66,
81-82).
There are a number of problems with the Applicant’s proof as respects its ability to
minimize leachate depth at the proposed expansion under one foot. For example, the
existing landfill has a requirement that the leachate be no more than two feet in depth,
however, according to Illinois Environmental Protection Agency documentation
(Watson Written Comment, Lx. B. p. 2 (C1837-2204), WMII has never been able to
maintain leachate at two feet or under at the existing site. WMII presented no
evidence that, despite its site-specific failures in this regard, it would be able to
maintain an even lower depth, one foot, at the expansion. Additionally, WMII’s
testimony with respect
to depth of leachate is confusing and inconsistent, as the liner
itself has a 12-14 foot difference in height, so from where will the one-foot
depth
of
leachate be measured? Finally, despite a condition to approval imposed by Kankakee
County concerning this 2-foot requirement, the decision of the Kankakee County
Board is against the manifest weight, as the evidence is simply not in the record to
support WMII’s conclusions.
• WMII’s proposed leachate recirculation system,
i.e.,
the bioreactor, it proposes will
be so designed to protect the public health, safety and welfare. WMII proposes to
make the expansion into a bioreactor. (11/21/02 6:00pm Tr. 50). However, the
person who was in charge of the design of this bioreactor, Mr. Nickodem, knows of
no other operational bioreactor in the State of Illinois, admits that the effects of
recirculating leachate on a landfill are not completely understood, admits that the
specifics of when the recirculation will begin are not contained in the Application,
doesn’t know how much settlement or deformation the recirculation will cause and
whether such deformation will cause the landfill’s cover to fracture, and testified that
he doesn’t event know if he would call himself an expert in this subject. (11/21/02
6:00 pm Tr. 50, 51, 54, 60; 11/22/02 9:00am Ii. 17). Further, Mr. Nickodem
admitted that the bioreactor, since it accelerates decomposition of waste, also
accelerates settlement and production of landfill gas. (11/22/02 9:00am Tr. 18-19).
• The testimony was inconsistent and no plan exists in the Application as to how over
six million cubic yards of excess soil from excavating the areas to be filled with
41
waste, will be managed at the site, if daily cover other than soil is utilized. (See,
11/22/02 1:30pm Tr. 42-47). Additionally, since alternative daily cover
(i.e..
non-soil
cover) is preferred to soil cover, as it conserves air space in the landfill and allows
leachate to flow through the landfill, rather than potentially buldge up through the
final cover, there appears to be strong preferences for use of non-soil covers, which
leaves a greater potential ofa six million cubic yards problem at the site.
(J4.).
• Although the Applicant admits that landfill gas, if it reaches
five percent of the lower
explosive limit, is a threat to public health, safety and welfare, there is no plan
contained in the Application as to what will be done to assure the neighboring
residents to the landfill expansion are not so threatened if such a level is found in one
of the gas monitoring probes. In defense of this missing element, Mr. Nickodem
testified that it is something that will be addressed when it is raised by the Illinois
Environmental Protection Agency (11/22 1:30pm Tr. p. 56-59). For something as
dangerous as explosive gas, isn’t it better to have a plan in place ahead of time?
Likewise, there is no schedule for installing the gas collection wells in relation to the
phased construction ofthe proposed landfill expansion. (11/22 1:30pm Tr. p. 72-73).
• Mr. Nickodem testified that it is important to know about the types of operational
problems and alleged or actual violations the existing landfill and the existing
operator, WMII, has had, so that he can develop an operational plan that can
proactively address
those problems and violations and prevent them from possibly
happening again. (11/23/02 9:00am Tr. 17). In developing the operational plan for
the proposed expansion, Mr. Nickodem assumed, based in the material provided to
him by WMII. that WMII had no past notices of or actual violations at the existing
landfill. (11/23 9:00am Tr. p. 16). However, this is simply not accurate and not true.
Mr. Rubak testified that: nothing was given to Mr. Nickodem by WMII
with
respect to compliance
and Mr. Rubak only knew of
3-4 notices of violation from
IEPA for the existing facility which were received by WMH in the 1980’s. after an
allegedly thorough search of records by WMII. (11/25 1:30pm Tr. p. 67. 68-69).
However, there are actually, at least, 21
notice of violation sent to WMII
concerning the existing site (Waston Hearing Exhibit 3; 11/25 1:30pm Tr. p. 70-93).
It is truly an example of either closing your eyes to the past and wishing it would go
away, or severe miscommunieation
in compiling this Application, since these
numerous violations which were important to know about from an operational
planning perspective, and which were unacceptable to WMII, according to Mr. Rubak
had clearly been overlooked. Further, with the three-four notices of violations which
Mr. Rubak testified he knew about, those were not provided to Mr. Nickodem.
Therefore, the IPCB should find that the Kankakee County Board decision as respects
Criterion 2 was against the manifest weight of the evidence.
(3)
The Kankakee County Board’s Decision as
respects Criterion 3
(compatibility with the surrounding area and minimize impact on
)
was
Against the Manifest Weight of the Evidence
42
Pursuant to Criterion 3, an applicant must establish that the facility is located so as to
minimize incapability with the character of the surrounding area and to minimize the affect on
the value surrounding property. (415 ILCS 5/39.2(a)(iii)).
This Criterion contains two
components, character of the surrounding area and value of the surrounding property. For the
reasons articulated in Section Il.B(2), due to Ms. Beaver-McGarr’s perjury, the IPCB should find
that the Kankakee County Board’s decision on Criterion 3 is against the manifest weight of the
evidence. Additionally, even if Beaver-McGarr’s testimony is considered, the following
summary of evidence supports an IPCB’s finding that the Kankakee County Board decision was
is against the manifest weight of the evidence.
• The proposed facility intends to re-circulate the leachate, which will require vertical
leachate re-circulation wells. The design has
the pipes protruding four feet above the
final cover. (11/22/02 1:30pm Tr. 64-65). There will be 25 of these wells protruding
four feet over the cover of the landfill. (11/22/02 1:30pm Tr. 77). There will be 88 gas
wells, which will protrude
5
to 6 feet above the final cover. (11/22/02 1:30pm Tr. 67-68).
In essence, there will be 113 pipes protruding 4 to 6 feet above the final cover. Despite
this, Mr. Lannert opines that the proposed facility is compatible with the character of the
surrounding area as it may be used for a golf course or recreational space at some point in
the future.
However, WMII’s engineer, Andrew Nickodem, contradicts LanncrUs
testimony (and report, neither of which address these 113 pipes) that with 25 leachate re-
circulation wells and 88 gas wells protruding from the cover over the site, a golf course
cannot be built, and furthermore, he is unaware of any facility in the State of Illinois with
these types of protruding wells that has actually been used as open space
with a
recreational use. (11/22/02 1:30pm Tr. 79-80).
• Mr. Lannert’s landscaping plan does not call for any landscaping on the East side of the
proposed facility. If landscaping is necessary on the north, west and south sides of the
proposed facility to minimize incapability, it is logically necessary on the East side as
well.
•
The Kankakee Comprehensive Plan requires that the local plan as well as the County plan
be considered when considering land use for areas within 1.5 miles of a municipal
boundary. Watson local hearing Exhibit No. I is the “County Regional Planning
Department Map dated 2002”. The map depicts a portion of the facility as falling within
the
1.5
mile planning boundary. If a portion of the proposed facility is within the 1.5
mile planning boundary then the City of Kankakee Comprehensive Plan must be
43
considered and evaluated.
Mr. Lannert did not consider the City of Kankakee
Comprehensive Plan.
• Ms. Beaver-McGarr claims that she reviewed 1,292 transactions in performing her
analysis. It is important to note that 922 of the transactions are resale transactions of
residential properties in Kane County related to the Settler’s Hill Landfill. Therefore,
75
of the transaction occurred outside of Kankakee County. Ms.
Beaver-McGarr
claims that 370 transactions that occurred in Kankakee County were considered.
However, it is important to note that most of these transactions were not part of her
analysis. In fact, her residential analysis between the target and control groups near the
existing facility involved a total of 22 transactions.
• Ms. Beaver-McGarr
claims that 263 transactions were reviewed concerning her
agricultural study.
It is important to note that the only agricultural transactions
incorporated into Ms. Beaver-McGarr’s analysis for the target/control areas involved 15
transactions. It is important to note that those 15 transactions span ten years and amount
to 1.5 transactions per year.
• Essentially. Ms. Beaver-McGarr considered a total of 37 transactions in the target and
control areas for both the residential and agricultural analysis. Of those 37 transactions, 8
transactions (5 agricultural and 3 residential) most be excluded as they are clearly
inapplicable.’0 Therefore, when Ms. Beaver-McGarr claims that she reviewed 1,292
transactions, she only considered 37 transactions in the target and control areas for both
agricultural and residential properties 8 of which are inapplicable. Her analysis is based
on 29 transactions over the course of 10 years, which is inadequate for a finding on
Criterion 3, when far more than those few transactions actually occurred over the 10-year
study period.’’
• Once the apparitional transactions are removed, the average price for residential
properties in the target area is $79,556.00 as oppose to the SI 19,954.00. Ms. Beaver-
McGarr’s representation that properties in the target area are approximately $30,000.00
more than in the control area is thus, not only misleading, it is inaccurate.
Ms. Beaver-McGarr did not have a definition or any logic in deciding whether a particular transaction involved
a farm or not. By ordinance, the County of Kankakee defines a farm as consisting of at least 20 acres. Of the IS
agricultural transactions in the target/control areas reviewed/considered by Ms. Beaver-McGarr only 10 of them
involved transactions of 20 acres or more. Essentially, one-third of the transactions labeled agricultural/farm
were not.
If one reviews the individual transactions, they
can easily ascertain that the properties of
less than 20
acres are something other than farms. For example the average price
per acre for all farms in Kankakee
County
sold
between 1995 and 1999 was $2,512.00 per
acre. One
of the transactions listed by Ms. Beaver-McGarr as a
farm sale
involved 11 acres with a cost of $11,045.00 per acre. When the average price of a farm acre in
Kankakee County is S2 ,5 12.00 and one transaction involves a price of $11,045.00 per acre, clearly farmland is
not being compared to farmland.
Watson public hearing Exhibit No. 10 removes the residential transactions that clearly are not relative samplings
of the property in the target area.
44
• Ms. Beaver-McGarr’s conclusion that farm property in the target area has been increasing
at a rate of 201.29
as compared to an increase of 145.89
in the control area is
likewise flawed. When considering farmland in Kankakee County as a whole, there was
an increase of 13.82
when comparing farms sold between 1990 through 1994 with
farms sold between 1995 and 1999. Once the non-farm transactions are excluded from
Beaver-McGarr’s study, the rate of appreciation in the control area is 32
and in the
target area it is actually a 17 decrease.
• Thus, contrary to Ms. Beaver-McGarr’s testimony, her study actually establishes that
property values residential and/or farm is higher in the control area as oppose to the
target area which is the entirely opposite conclusion proper by Ms. Beaver-McGarr.
• Additional flaws in Ms. Beaver-McGarr’s analysis and resulting opinions are listed on
pages 22-24 of Watson’s written comment (C1837-2204),and due to space limitations.
are referenced and incorporated rather than repeated herein.
Therefore, in the first instance, the IPCB should find that the Kankakee County Board’s
decision on Criterion 3 is against the manifest weight of the evidence due to Ms. Beaver-
McGarr’s perjury and, alternatively, if Ms. Beaver-McGarr’s testimony is considered, that the
Board’s decision is against the manifest weight of the evidence, for the reasons stated above and
due to the inconiplete and inaccurate analysis presented by WMII.
(4)
The
Kankakee County Board’s Decision as respects
Criterion 6 (Traffic)
was
Against the Manifest Weight ofthe Evidence
Criterion 6 requires that the applicant show that the traffic patterns to
or
from the
facility
are so designed as to minimize the impact on existing traffic flows. The Kankakee County
Board’s decision concerning this Criterion is against the manifest weight of the evidence for, at
least, the following reasons:
• Mr. Corcoran. WMII’s expert relies on traffic counts taken by his consulting firm, Metro,
in formulating his opinions with respect to Criterion 6. However, these counts are not
representative and not accurate of actual or typical traffic on Rte. 45/52, as they were taken
during February and, thus, do not include tourist, farming, fair ground or other similar
traffic which does not occur in the winter, and do not identify whether the vehicles counted
were cars or trucks or other types of vehicles. (11/19/02 1:38pm Tr. 26, 43). Mr. Corcoran
relied on counts that stated traffic on Rt. 45/52 to be between 252 to 435, “going north or
southbound” and not identifying the type of vehicle. (11/19/02 1:38pm Tr. 24, 26). The
existing landfill is generating 200 vehicle trips per day according to Mr. Corcoran, and the
45
proposed expansion will generate 600 vehicle trips per day, more than three times the
traffic, not taking into consideration type of vehicle, currently experience at and near the
site. (11/19/02
1:38pm Tr. 25-26).
• Mr. Corcoran
admits that the size of the vehicles on the roadway system in addition to
volume, is important in doing a traffic analysis,
and an increase traffic flow of trucks
may be equivalent of three to four times that number of cars. (Id. at p. 46-47). On the day
that Metro did its traffic count, no transfer trailers entered or exited the site. (Id. at p. 47).
The difference between a 30-40 foot long truck and a 60-65 foot truck would require
additional analysis in a traffic study, such as the gap studies as “the larger truck obviously
has different acceleration characteristics when it’s pulling into traffic.” (Id. at p. 48).
However, despite Mr. Corcoran’s admission, the size ofthe vehicles, the addition of at least
320, 60-65 foot transfer trailers to the traffic flow and Rt. 45/52 was not considered.
•
One basis of Mr. Corcoran’s opinion that an increase of three times the exiting amount of
traffic of the site is minimized is that the peak travel times of the roadway system are
different than the peak travel times for the site. However, Mr. Corcoran never analyzed
whether there are any secondary peak travel times on the roadway system and, as discussed
above, the traffic count data on which Mr. Corcoran based his opinions, is faulty and not
representative of typical or average traffic conditions on Rt. 45/52. (11/19/02 1:38pm Tr.
44-45).
•
Mr. Corcoran or Metro performed the traffic analysis contained in Criterion 6 of the
Application on the assumption that the proposed expansion would be accepting no more
than a maximum of 4,000tpd. (11/19/02 1:39pm Tr. 49). The amended and restated Host
Community Agreement between the applicant and the County
of Kankakee allows for up to
7,000 tons of out ofCounty waste to be accepted on any given day. (Amended and restated
Host Community Agreement contained at the end of volume I in the Application, p.
7-8).
The amount of traffic will almost be double for 7,000 tons of garbage per day as oppose to
4.000 tons of garbage per day.
Due to WMII’s failure to perform a complete
and adequate traffic study, and for the other
reasons stated above, the Kankakee County Board’s decision that Criterion 6 is met, is against
the manifest
weight of the evidence,
and should be reversed by the IPCB.
(5)
The Kankakee County Board’s Decision as respects Criterion 7 was against
the Manifest Weight of the Evidence
The Applicant asserted that Criterion 7 is not applicable,
however, the witness who the
Applicant
had testify concerning and in support of this Criterion had not seen the analysis for the
leachate currently generated by the existing landfill and, although he had never seen leachate
46
classified as a hazardous waste before, he could not confirm that the existing leachate was not a
hazardous waste. (11/23 9:00am Tr. 37-39). Additionally, although a hazardous waste would not
be able to be disposed of at a typical POTW, Mr. Nickodem testified that the leachate from the
current site was going to CID for treatment. Although, there is no conclusive evidence that the
leachate of the existing site is a hazardous waste, should it not be the applicant’s burden (in this
case WMII) to reveal that from the start, rather than requiring it to be uncovered by petitioners?
If so, and since WMII did not present evidence whether or not the leachate at the existing site
was hazardous waste (the only evidence is that Nickodem
could not confirm
whether or not it
was hazardous), the Kankakee County’s Board’s decision finding Criterion 7 inapplicable, is
against the manifest weight of the evidence.
(6)
The Kankakee County Board’s Decision as respects Criterion 8 (Consistency
with the SWMP) was Against the Manifest Weight of the Evidence
Criterion (viii) of section 39.2 of the Act provides: “hf 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 415 ILCS 10/1 et seq. or 415 ILCS 15/1 et seq., the facility is consistent with
that plan.” (415 ILCS 5/39.2(a)(viii)) WMII’s Criterion I witness, Ms. Sheryl Smith, also
testified on behalf of the Applicant in support of Criterion 8. Ms. Smith’s analysis, however,
failed to consider a number of substantive requirements of the SWMP, which were neither
discussed nor met by WMII in its Application and
testimonial presentation, thus, Ms. Smith’s
conclusions, and therefore, the Kankakee County Board’s conclusion that Criterion 8 was met, is
against the manifest weight of the evidence.’2
12
There is likely to be some discussion concerning the validity of the 200t and 2002 Amendments to the SWMP,
since those amendments were not submitted to the Illinois Environmental Protection Agency for review and
47
•
Kankakee County solid waste management plan, requires the following items of which no
proof is contained in the Application that they have been provided by the Applicant: (1)
performance bond or off-site environmental impairment insurance in a form and amount
acceptable to the County (11/21/02 9:00 am Tr. 8 1-82); (2) a property value protection plan
prepared by an independent entity satisfactory to the County
(11/21 9:00 am Tr. 86-87, 90).
In fact. Ms. Smith concluded the property value protection plan was satisfactory merely
because it was attached to the host agreement, however she did not know if it
was prepared
by an independent entity, as required. (11/21/02 9:00 am Tr. 85-89).
• Kankakee County’s solid waste
management plan requires an applicant in siting comply
with the siting ordinance, in terms of providing the information sought by that ordinance.
However, the Applicant in this circumstance did not review and provided not testimony
concerning the consistency of the Application with this requirement and, in fact, Ms. Smith
testified that she is not qualified to answer questions concerning and did not review the
County’s siting ordinance for consistency with the Application. (11/21/02 9:00 am Tr. 98).
• Additionally, the SWMP, requires the following be shown in a proposal for a new facility
(this list is not exhaustive, just merely examples). Since the Application complies with
none of
these requirements in substance, and includes none of the information that is
required by the County to be reviewed during siting. the Application is not consistent with
the County’s solid waste management plan.
Accordingly, and for
the reasons summarized
in the chart below, whether or not the October.
2001 and March, 2002 purported amendments to the SWMP are valid, the decision of the
Kankakee County Board with respect to Criterion 8 is against the manifest weight of the
evidence, as WMII did not provided the required and sufficient evidence to support approval.
Solid Waste Management Plan Is information
Discussion
Requirements (Examples)
included in the
Application?
“The facility shalt not jeopardize
No.
The expansion is proposed to be
developed on property
historically
or
archaeologically
that was owned by and the farmstead of Thomas and
significant features, or endangered
Simeon Sanimons, who are historically significant
or threatened species of plant, fish or
persons in Kankakee County.
WMll failed to submit
wildlife” (Watson IPCB Hearing Ex.
any information to the County in its Application
7 (offer of proof) p.329)
concerning the historical background of the property on
which it proposes to develop its expansion. However,
both Mr. Watson and Judith Furia, a researcher from the
Kankakee Historical Society (C1792-1806,Cl8lO-1811)
comment, as required by the Illinois Solid Waste Planning and Recycling Act. (415 ILCS 15/1, ci
seq., see also,
11/21/02 9:00 am Tr. 76-77). Petitioner
Watson is specifically reserving and not waiving that argument
by
addressing other portions of WMII’s failures to meet the SWMP, in this brief.
48
“No part of the landfill shall be
located within
a setback zone for
water
supply wells established
in
accordance with the Illinois
Environmental Protection
Act
which
provides for wellhead setback zones
between
200
and
1,000 feet
depending
upon
the
local
hydrogeological conditions in the
area”
(Watson IPCB Hearing Ex. 7
(offer of proof) p. 329)
Only partially.
The Application only included a survey from the ISGS
and ISWS. Mr. Andrew Nickodem testified on behalfof
WMII that these sources or surveys are not, in his
experience, always accurate and that, he knew of the
existence of a
well on adjacent property to the East of the
proposed expansion
and, although it was not in the ISGS
and ISWS survey, he did not seek to determine whether
the proposed landfill violated the setback requirements to
that well. (11/22/02 1:30pm Tr. 27-28).
‘A landfill site has an extensive
environmental impact and
it is
essential to locate the naturally most
desirable site in order to reduce that
impact.’~(Watson IPCB Hearing Ex.
7 (offer of proof) p.330)
No.
The only reason for this pat-ticular location is that it is an
expansion of an already existing landfill. Just because it
is by an existing landfill, doesn’t mean that the existing
landfill was properly or appropriately located, and
doesn’t mean the expansion is properly or appropriately
located.
The
protection of groundwater is one
of the primary concerns in siting a
landfill. A site should not be located
above or near a groundwater
recharge zone or a heavily utilized
water supply
aquifer.” (Watson
IPCB Hearing Ex. 7 (offer of proof)
p,
330).
Testimony
shows that the
proposed site is
not compliant
with this
requirement.
The proposed expansion is located above a heavily
utilized aquifer and above or in a recharge zone. (“ Tr.
**).
“The site should be located as not to
adversely affect streams, lakes or
other waterways.” (Watson IPCB
Hearing Ex. 7 (offer of proof) p.
330).
D.
IF THE IPCB DETERMINES NOT TO REVERSE OR REMAND THE KANKAKEE
COUNTY BOARD DECISION, THE IPCB PROCEEDING ON FUNDAMENTAL
FAIRNESS SHOULD BE REMANDED FOR FRUTHER DISCOVERYfHEARuiW~S
Petitioner respectfully submits that the following rulings of the IPCB Hearing Officer
were in error, resulted in prejudice to the Petitioner in the IPCB proceedings, and reserves his
rights to raise the error of these rulings (in addition to those discussed above in conjunction with
offers of proof), summarized briefly below, on appeal:
•
The Hearing Officer barred discovery and admission of evidence concerning
communications related to the SWMP;
•
The Hearing Officer barred the discovery depositions of Ms. Harvey and Mr. Moran
concerning their January 2003
exparte
communication concerning siting conditions;
Addressed
in a
conclusory
manner.
The Application fails to address this requirement and
only provides a conclusory statement with respect to this
requirement.
49
•
The Hearing Officer granted WMII’s and the County’s respective motions to quash the
depositions of Lee Addleman and Efraim Gill, based on statements from counsel and, in
Gill’s case a uncertified and unsworn letter from Mr. Gill’s alleged doctor (no sworn
medical provider’s affidavit was presented), and also barred these
individuals from
testifying;
•
The Hearing Officer denied Watson’s motion to present additional sTitten questions to
Efraim Gill;
•
The Hearing Officer’s discovery rulings, including but not limited to his ruling barring
Kruse’s cell phone record (but allowing it from WMII for only one day), barring the ftill
time frame requested for cell phone and other phone records;
•
The statutory deadline (as a violation of due process) for a IPCB decision, including, as
part of the collective issues during this process, the County’s incomplete and delayed
production of discovery, as most dramatically evidenced by the information and
communications referenced in the invoices of Hinshaw & Culbertson and the County~s
belated production of the audio tapes sought in discovery); and
•
The Hearing Officer’s granting of WMII’s motion to quash the subpoenas for records
issued to Metro (including Mr. Corcoran,
et at)
and Integris (including. Ms. McGarr. ci
al).
As a result of these erroneous rulings, the petitioners were deprived of due process in this
proceeding and prejudiced in their ability to obtain evidence related to and in support of the
fundamental fairness issues raised in their Petition’s before the IPCB for review.
V.
CONCLUSION
WHEREFORE, Michael
Watson respectfully requests the Illinois Pollution Control
Board to vacate the decision of the Kankakee County Board approving the Application of Waste
Management
of Illinois, Inc. Alternatively, Michael Watson respectfully requests that the
Illinois Pollution Control Board remand the decision of the Kankakee County Board for further
hearings and proceedings, to cure
the fundamental unfairness of the subject decision and
hearings.
Dated: June 2, 2003
Respectfully Submitted,
PETITIONER MICHAEL WATS
By:_________________________________
Jennifer J. Sackett Pohlenz
C/One of s
rneys
QUERREY & HARROW, LTD.
175 W. Jackson, Suite 1600, Chicago, Illinois 60604
(312) 540-7000, Illinois Attorney No.6225990
