RECEIVED

0198-001

(‘I

-

JUN

FPK’~

232003nm~

ILLINOIS POLLUTION CONTROL BOARD

STATE OF ILLINOIS

CITY OF KANKAKEE,

)

Pollution Control Board

PCB 03-125

Petitioner,

)

PCB 03-1 33

PCBO3-134

V.

)

PCB03-135

(consolidated)

COUNTY OF KANKAKEE, COUNTY

)

(Pollution Control Facility Siting Appeals)

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS, INC.

)

)

Respondents.

NOTICE OF

FILING

To:

(See attached Service List.)

PLEASE TAKE NOTICE that on this

23rd

day of June 2003, the following was filed

with the Illinois Pollution Control Board, attached and herewith served upon you:

Brief and Argument of Respondents County of Kankakee and

County Board of Kankakee

COUNTY OF KANKAKEE and

COUNTY BOARD OF KANKAKEE

( Ell~ethS. Harvq’yT

(3

‘-.-~Oneof Its Attorne9s

Elizabeth S. Harvey

SWANSON, MARTIN & BELL

One IBM Plaza, Suite 2900

330 North Wabash Avenue

Chicago, Illinois 60611

Telephone: (312) 321-9100

Firm I.D. No. 29558

---

CERTIFICATE OF SERVICE

I, the undersigned, state that I served a copy of the described document on June 23, 2003, in

the above-captioned matteras indicated on attached service list.

(~9~tteM. Pocilin

x

Under penalties as provided by law

pursuant to 735 ILCS 5/1-109, I certify

that the statements set forth herein

are true and correct.

---

SERVICE LIST

KANXAKEE

COUNTY/WMII LANDFiLL SITING

Bradley P. Halloran *

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Charles

Richard

Hinshaw & Culbertson

100 Park

Avenue

P.O. Box 1389

Rockford, IL 61105

Facsimile: 815/490-4901

Kenneth A. Leshen **

One Dearborn Square

Suite 550

Kankakee, IL

60901

Facsimile:

815/933-3397

Donald Moran *

Pedersen & Houpt

161

North Clark Street

Suite 3100

Chicago, IL 60601-3242

George Mueller **

George Mueller, P.C.

501 State Street

Ottawa, IL 61350

Facsimile: 815/433-4913

*

Hand Delivery

**

Facsimile

L. Patrick Power **

956 North Fifth Avenue

Kankakee, IL 60901

Facsimile: 815/937-0056

Jennifer J. Sackett Pohlenz *

Querry & Harrow, Ltd.

175 West Jackson Boulevard

Suite 1600

Chicago, IL 60604

Facsimile: 312/540-0578

Keith Runyon **

1165 Plum Creek Drive

Unit 0

Bourbonnais, IL 60914

Facsimile: 815/937-9164

Kenneth A. Bleyer

(U.S. Mail)

Attorney at Law

923 West Gordon Terrace, #3

Chicago, IL 60613-2013

Leland Milk

(U.S.

Mall,)

6903 S. Route 45-52

Chebanse, IL 60922-5 153

Patricia O’Dell

(U.S.

Mai/)

1242 Arrowhead Drive

Bourbonnais, IL 60914

F. Heisten

(Federal Express)

Porter

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARWI.ERK’S OFFICE

CITY OF

KANKAKEE,

)

JUN

232003

Petitioner,

)

STATE OF ILLINOIS

PCB 03-125

Pollution

Control

Board

COUNTY OF

KANKAKEE,

COUNTY )

(Third-Party Pollution Control Facility

BOARD OF

KANKAKEE,

and WASTE

)

Siting Appeal)

MANAGEMENT OF ILLINOIS, INC.,

)

Respondents.

Petitioner,

)

vs.

)

PCB03-133

COUNTY OF

KANKAKEE,

COUNTY )

(Third-Party Pollution Control Facility

BOARD OF

KANKAKEE,

and WASTE )

Siting Appeal)

Respondent.

MICHAEL WATSON,

)

Petitioner,

)

vs.

)

PCB03-134

COUNTY OF

KANKAKEE,

COUNTY )

(Third-Party Pollution Control Facility

BOARD OF

KANKAKEE,

and WASTE )

Siting Appeal)

Respondent.

KEITH RUNYON,

Petitioner,

)

vs.

)

PCB03-135

COUNTY OF

KANKAKEE,

COUNTY )

(Third-Party Pollution Control Facility

BOARD OF

KANKAKEE,

and WASTE )

Siting Appeal)

Respondent.

)

BRIEF AND ARGUMENT OF RESPONDENTS COUNTY OF

KANKAKEE

AND

COUNTY BOARD OF

KANKAKEE

Charles F. ilelsten

Elizabeth S. Harvey

Richard Porter

Swanson, Martin & Bell

Hinshaw & Cnlbertson

One IBM Plaza, Suite 3300

100 Park Avenue

330 North Wabash Avenue

P.O. Box 1389

Chicago, IL 60611

Rocklord, IL 61105-1389

312/321-9100

815/490-4900

70366719vt 824S49

---

INTRODUCTION

1

ARGUMENT

1

THE

COUNTY OF

KANKAKEE

HAD JURISDICTION TO CONDUCT THE

LANDFILL SITING HEARING

1

A.

Environmental Protection Act

B.

therefore, had authority to conduct a siting hearing

II.

THE LANDFILL SITING HEARINGS CONDUCTED BY THE COUNTY OF

KANKAKEE

WERE FUNDAMENTALLY FAIR

A.

Board

11

B.

There were no

exparte

Applicant

C.

Did Not Amount to Fundamental Unfairness

24

unfair

1.

penury

2.

was not re-cross-examined

33

E.

does not result in fundamental unfairness

34

Ill.

THE

KANKAKEE

MANIFEST WEIGHT OF THE EVIDENCE

A.

manifest weight of the evidence

B.

welfare) is supported by the manifest weight of the evidence

42

7O3667l9v~826549

---

1.

The location of the proposed expansion is appropriate, and is

supported by the manifest weight of the evidence

43

2.

The 2eolo2y and hydropeolo~yofthe site are appropriate, and

protect the public health, safety, and welfare

48

3.

The IPCB has not rejected the location of the proposed facility

50

C.

The County Bond’s decision on ritenion three (real estate) is supported by

the manifest weight of the evidence

51

D.

The County Boand’s decision on criterion five (plan of operations) is

supported by the manifest weight of the evidence

53

E.

The County Board’s decision on criterion six (traffic patterns) is

supported by the manifest weight of the evidence

55

F.

The County Board’s decision on criterion seven (hazardous waste) is

supported by the manifest weight of the evidence

56

G.

The County Board’s decision on criterion eight (consistency with the solid

waste management plan) is supported by the manifest weight of the

evidence

57

IV.

THE IPCB HEARING OFFICER RULINGS CHALLENGED BY WATSON

WERE CORRECT, AND THERE IS

NO NEED FOR

FURTHER

PROCEEDINGS

63

CONCLUSION

63

70366?79vt 826549

---

INTRODUCTION

On March 29, 2002 Waste Management of Illinois, Inc. (WMII) filed an application

pursuant to 415 ILCS 5/39.2 (2002) to site a landfill in Kankakee County. The application was

withdrawn on July 22, 2002 and refiled on August 16, 2002. (C.1244 at 3). The Application

primarily consisted of two bound volumes amounting to thousands ofpages ofmaterial.

A public hearing was held from November 18, 2002 through December 6, 2002, during

which hundreds of hours of testimony was taken. Eight objectors appeared at the hearing

including the City of Kankakee, Michael Watson, Merlin Karlock, and Keith Runyon, who are

the petitioners in the instant action. The Application was approved by on January 31, 2003 as

each criterion of section 39.2 was found to be satisfied. C2348-2354. The petitions for review

filedby the petitioners were consolidated, and the proceedings under 415 ILCS 5/40.1 ensued.

During these proceedings, the objectors took 16 depositions, primarily of County Board

Members and personnel. Collectively the petitioners have argued that the Kankakee County

Board (County Board) lacked jurisdiction, that the proceedings were fundamentally unfair and

that the County Board decisions as to criteria 1, 2, 3, 5, 6, 7 and 8 were against the manifest

weight ofthe evidence. However, the record ofthis case clearly establishes that jurisdiction was

proper, the proceedings were fundamentally fair, and the decision of the County Board as to the

criteria was supported by ample evidence.

ARGUMENT

I.

THE COUNTY OF

KANKAKEE HAD

A.

Environmental Protection Act.

As set forth in section 3 9.2(b) of the Environmental Protection Act (Act), an applicant is

required to provide notice by personal service or registered mail to property owners located

70366146v1 M3333

---

within

250

feet of the proposed facility at least 14 days prior to the filing of an application. 415

ILCS 5/39.2(b). The Brief of the City ofKankakee alleges that WMI1 failed to provide adequate

notice to four landowners, Merlin Karlock, Richard Mehrer, and Robert and Brenda Keller.

However, the Briefs of Petitioners Watson and Karlock allege improper service only on Robert

and Brenda Keller, and in fact, in his own Brief, Karlock, represented by Attorney George

Mueller, does not allege that he was improperly served. As explained below, all of the property

owners listed above were properly served with notice pursuant to section 39.2(b) ofthe Act.

The Affidavit and supporting materials provided by WMII set forth that Mr. Karlock

received, signed and returned a certified mail receipt on July 27, 2002.

See

Siting Hearing

Petitioners Ex. 7 and 7A. Obviously, such service is proper under section 39.2(b) of the Act

because the service was accomplished 20 days before the application was filed and, as clearly set

forth in the Illinois Pollution Control Board’s (IPCB’s) decisions of

Environmentally Concerned

Citizens Organization v. Landfill L.L.C.,

PCB 98-98 (May 7, 1998) and

Ash v. iroquois County

Board,

PCB 87-29 (July 16, 1987), certified mail is entirely acceptable under section 39.2(b).

Consequently, any allegation that Mr. Karlock did not receive proper notice must fail.

Next, service to Mr. Mehrer was also clearly appropriate. On July 25, 2002, notice was

sent to Mr. Mehrer, as the registered owner of the property, through regular and certified mail.

See

Petitioner’s Ex. 7 and 7A. The certified mail receipt was signed and returned by someone

other than Mr. Mehrer.

See Id.

After receiving that returned receipt, WMII could have

concluded its attempts at service because a signed return receipt is sufficient even if it is not

signed by the property owner.

See County of Kankakee v. City ofKankakee,

PCB 03-31, 03-33,

03-35 (consolidated), slip op. at 16 (Jan.

9,

2003);

DiMaggio v. Solid Waste Agency ofNorthern

Cook County,

PCB 89-138, slip op. at 10 (Jan. 11, 1990);

City of Columbia v. County of St.

2

1O366l46vS 8~3333

---

C/air,

PCB

85-177,

slip op. at 13-14 (April 3, 1986). However, WMII did not end its attempts

there. Instead, WMII went an extra step and served Mr. Mehrer by posting notice on his

property.

See

Petitioner’s Ex. 7A.

The City of Kankakee contends that WMII should have effectuated service on Mr.

Mehrer’s widow andlor his heirs, but WMII clearly was not required to do so because Mr.

Mehrer was the only owner of the property listed in the Kankakee County tax records.

See

415

ILCS 5/39.2(b) (explaining that notice shall be given to property owners “which appear from the

authentic tax records ofthe County in which such facility is to be located”). Again going above

and beyond its duty, WMII did attempt to serve Mr. Mehrer’s widow by certified mail on July

26, 2002 and regular mail on July

25,

2002 even though she was not listed on the authentic tax

records as an owner of the property.

See

Petitioner’s Lx. 7 and 7A. The certified mail receipt

was returned unclaimed.

See id.

Because WMII met and exceeded the service requirements of

the Act by providing notice to Mr. Mehrer, the only registered owner of the property, such

notice was proper and the County Board had jurisdiction.

Finally, the IPCB should find that service was proper on Mr. and Mrs. Keller. As set

forth by Mr. Moran and the process server, Ryan Jones, WMII attempted to serve the Kellers

notice of the intent to file the Application no fewer than nine times, consisting of five attempts

by personal service (including one attempt where an individual on the Keller property refused to

provide a name and could not be served), one by certified mailing, two by regular mailings and

even posted the notice by firmly taping it to the door commonly used by the Kellers.

See

C1271

at

5-57;

Petitioner’s Ex. 7W

Petitioner Watson claims that WMJI’s service is inadequate because its attempts at

service began four days prior to the deadline for notification, but this is merely a misstatement of

3

70366146v1 S~3333

---

the facts because WMII actually began attempting to serve the Kellers through certified and

regular mail on July

25,

2002, 22 days before the application was to be filed and 8 days before

the deadline for notification. Beginning attempts at service 8 days prior to the notification

deadline was clearly adequate.

See City of Columbia v. County ofSt. Clair, 85

PCB 177, slip op.

at 10 (April 3, 1986) (explaining that an applicant need only initiate service “sufficiently far in

advance to reasonably expect receipt of notice 14 days in advance of the filing of an

Application”);

Waste Management of illinois

v.

Village of Bensenville,

PCB 89-28, slip op. at 4

(Aug. 10, 1989) (“21-day certified mailing certainly constitutes a reasonable expectation”).

Petitioners rely on

Ogle County Board v. Pollution Control Board,

272 Ill.App.3d 184,

649 N.E.2d

545

(2d fist. 1995) to allege that the service provided to the Kellers was improper.

However, as recently asserted by Mr. Karlock’s attorney in another proceeding, to the extent that

Ogle

requires a returned receipt to be signed, that decision is no longer controlling.

(See

IPCB

Post-Hearing Brief of Mr. George Mueller for Town and Country in

County of Kankakee v. City

of Kankakee and Town and Country,

PCB 03-31, 33, 35 (cons.) (Jan. 9, 2003). In

Ogle,

the

Court specifically relied on the Supreme Court’s decision in

Avdich

v.

Kleinert,

69 Ill.2d 1, 370

(1977) in finding that actual timely receipt of pre-filing notice was required.

Ogle,

272

Ill.App.3d at 195-96, 649 N.E.2d at 554. However, the Supreme Court in

People cx reL Devine

v. $30,700 United States Currency,

199 Ill.2d 142, 766 N.E.2d 1084 (2002), effectively

overruled the holding in

Advich

as it relates to statutes requiring notice by “return receipt.!!

Devine

dealt with a forfeiture proceeding in which the required notice provision provided: “If the

owner’s or interest holder’s name and current address are known, then notice or service shall be

given by either personal service or mailing a copy of the notice by certified mail, return receipt

requested to that address.” 725 ILCS 15O/4(a)(l) (2000). The Supreme Court contrasted the

4

70366146v1 $13333

---

“return receipt requested” requirement in

Devine

with the “returned receipt” requirement at issue

in

Advich

and held that certified mail notice is complete when mailed when a statute requires

notice by “return receipt.”

Devine,

199 Ill.2d at 151-53, 766 N.E.2d at 1090-91. Because section

39.2(b), like the statute in

Devine,

requires that the notice be sent “return receipt requested,” the

IPCB should find that notice is complete when mailed.

Even if the Board relies on

Ogle,

that case is clearly distinguishable because in that case

the applicant did not mail certified letters until three days prior to the prior to the 14-day deadline

(272 Ill.App.3d at 187, 649 N.E.2d at

548),

compared to eight days in this case. The PCB found

that fact significant, noting that it would not be reasonable for the applicant to believe that the

certified letters would be received and signed within only three days.

Ogle,

272 Ill.App.3d at

188-89, 649 N.E.2d at 549. Additionally,

Ogle

is distinguishable because the property owners in

Ogle

actually signed the returned receipts after the 14-day deadline (272 lll.App.3d at 187, 649

N.E.2d at 548), while the Kellers never signed their notice. The Court in

Ogle

specifically

refused to speculate as to how it would rule if the notice was not signed at all, stating: “we

express no opinion whether a potential recipient who refuses to sign a receipt of notice may be

held to be in constructive receipt of the notice for purposes of the statute.” 272 Ill.App.3d at 196,

649 N.E.2d at 554.

After the Court’s decision in

Ogle,

the IPCB held that “the requirements of section

39.2(b) can be met through constructive notice.”

ESG Watts, Inc. v, Sangamon County Board,

PCB 98-2 (June 17, 1999). The Board explained: “If a property owner does not receive the

notice on time, he or she nonetheless may be deemed to be in constructive receipt of a notice if

the property owner refuses service before the deadline.” PCB 98-2, slip op. at 9. The facts of

this case indeed establish constructive notice because the Kellers were provided a certified notice

5

70366146v1 813333

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on July 25, 2002, two notices sent via regular mail, one on July 25, 2002 and one on August 1,

2002, five attempts at personal service were made from July29 to August 1, 2002, including an

attempt on July 31, 2002 when a woman on the Kellers’ property was present but refused to

identify herself, and, finally, a notice was firmly affixed to the Kellers’ door on August 1, 2002,

15 days prior to the filing of WMII’s application.

See

C1271 at

5-57;

Petitioner’s Lx. 7B.

Therefore, not only was service effective when it was sent by certified mail, at a minimum, all of

the attempts at service and the posting and delivery of the notices beginning 22 days prior to the

filing of the application provided constructive notice to the Kellers, as the hearing officer found

at the local siting hearing. C1271 at 148.

The Petitioners assert that constructive notice on the Kellers could not be had because

there was no evidence that the Kellers “refused” service before the deadline. However, the

evidence presented at the hearing establishes otherwise. The Kellers never attempted to claim

the certified letter that was sent on July 25, 2002, were conveniently not home on five attempts

by the process server to serve them, allegedly never saw the notice firmly affixed to their door

and never saw the two notices that they received by regular mail. All of these circumstances lead

to the inevitable conclusion that the Kellers were in fact recalcitrant, which the hearing officer

found. C1271 at 148. The fact that the certified letter sent to the Kellers was “unclaimed”

instead of “refused” makes no difference because there is no logical distinction between a

property owner that refuses to go to the post office to pick up a registered letter and a property

owner who marks “refused” on the certified mail receipt. Consequently, these property owners

should be treated the same and both should be subject to constructive notice. Otherwise, the

purposes of section 39.2 could be easily frustrated by property owners who simply refuse to act.

It is also important to realize that the Kellers were undoubtedly aware that the notice of the new

6

70366146v1 813333

---

application would be forthcoming because they had received notice of the original application

that was filed in March of 2002 and had to be refiled due to alleged notice defects. If ever a

property owner might seek to avoid service, it would be in a situation where a previous

application had been thwarted due to alleged notice defects.

Finally, the Petitioners contend that the notice provided to Mr. and Mrs. Keller was

inadequate because the notice was sent only to Mr. Keller. This argument too must fail. The

Court in

Wabash and Lawrence Counties Taxpayers and Water Drinkers Association

v.

Pollution Control Board,

198 Ill.App.3d 388, 390, 555 N.E.2d 1081, 1084 (5th Dist. 1990), held

that it was acceptable to provide notice to only one property owner even though there were

several owners listed in the authentic tax records, as heirs of a deceased property owner. The

court found that notifying only one owner “complied with section 39.2(b) of the Act even though

all of the heirs did not receive personal notice,”

Wabash,

198 Ill.App.3d at 390-91, 555 N.E.2d

at 1084. Likewise, in this case, the notice provided to Mr. Keller, as a listed owner of property,

was sufficient under section 39.2(b). Furthermore, the Petitioners’ assertions that Mrs. Keller

should have received notice is disingenuous because the evidence presented at the siting hearing

establishes that if such service was attempted, Mrs. Keller would never have been aware of it

because she does not believe that she or her husband receive any mail in her mailbox at home.

C1271 at 85. Because Mrs. Keller was not even aware that she received mail at her home, she

clearly would not have been aware of any mail that was addressed to her there. Consequently,

the Petitioners’ arguments that Mrs. Keller should have received her own notice should fail.

B.

The County Of Kankakee Satisfied All Jurisdictional Prerequisites And,

Therefore, Had Authority To Conduct A Siting Hearing.

Petitioner City of Kankakee alleges that the Kankakee County Board did not have

jurisdiction to hold a siting hearing because: (1) the applicant did not comply with the Kankakee

7

70366)46v1 813333

---

County Host Agreement, (2) all documents required by section 39,2(c) were not filed by the

applicant and (3) neither Kankakee County nor the applicant followed the requirements of the

ordinance. All of these arguments must fail because, as explained more fully in sections II.C,

II.E. and below, WMII did comply with the Kankakee County Host Agreement, did file all

documents required by section 39.2(c) and did follow the requirements of the ordinance.

However, even if the Petitioners’ assertions were true, these actions or inactions by Kanlcalcee

County andlor WMII do not divest the County Board ofjurisdiction over the siting hearing.

The only clearly jurisdictional prerequisites that have been established for a landfill siting

hearing are those contained in section 39.2(b).

See Tate v. IPCB,

188 Ill.App.3d 994, 1016, 544

N.E.2d 1176, 1191(1989). In fact, courts and the IPCB previously rejected arguments similar to

those made by the City of Kankakee that other factors may affect a local siting authority’s

jurisdiction.

See Tate,

188 Ill.App.3d at 1016, 544 N.E.2d at 1191;

City of Geneva v. Waste

Management ofIllinois, Inc.,

PCB 94-58 (July 21, 1994).

The Court in

Tate

specifically refused to hold that the requirements of 39.2(c) are

jurisdictional in nature. 188 Ill.App. at 1016, 544 N.E.2d at 1191. The Court explained that

“merely because subsection (b) has been held to be jurisdictional does not necessarily mean

that compliance with subsection (c) also must be had before the County Board has jurisdiction.”

Id.

Additionally, the IPCB held that an applicant’s failing to follow the requirements of an

ordinance does not divest a board ofjurisdiction as a siting authority.

City of Geneva v. Waste

Management of Illinois, Inc.,

PCB 94-58, slip op. at 8 (July 21, 1994) (explaining that meeting

statutory requirements contained in the Act is all that is required to vest a local siting authority

with jurisdiction to hear and decide a siting application).

8

70366146v1

813333

---

Finally, the Petitioner’s assertion that the lack of a valid host agreement divested the

County Board ofjurisdiction, must fail. First and foremost, as pointed out by Attorney Helsten

at the siting hearings, there was a valid host agreement in place because an application was filed

by WMII on March 29, 2002, prior to the June 1, 2002 cut-off date in the agreement. C1245 at

13; WMII Application, Cl, Tab C of Additional Materials. Nothing in the host agreement

provides that it would be null and void if the applicant had to continue or withdraw its initial

application and then refiled at a later date. Furthermore, even assuming,

arguendo,

that there

was not a host agreement in place, the absence of such an agreement would have no effect on the

jurisdiction of the County Board. As explained above, the only jurisdiction requirements are

those set forth in section 39,2(b), Because a valid host agreement is not a requirement under

section 39.2(b), the Board cannot declare that the County Board did not have jurisdiction based

on the absence of such an agreement.

See City ofGeneva,

PCB 94-58, slip op. at 8.

Because the only jurisdictional requirements for a landfill siting application are contained

in section 39.2(b) and, as explained above, the requirements of section 3 9.2(b) have been met,

the County Board had jurisdiction to conduct the siting hearing at issue.

H.

THE LANDFILL SITING HEARINGS CONDUCTED BY THE COUNTY OF

KANKAKEE WERE FUNDAMENTALLY FAIR.

Section 40.1 of the Act requires the Board to review the proceedings before the County

Board to determine if they were fundamentally fair.

415

ILCS 5/40.1. A non-applicant who

participates in a local pollution control siting hearing has no property interest at stake entitling

him to the protection afforded by the constitutional guarantees of due process.

Land and Lakes

Company v. Pollution Control Board,

309 I1l.App.3d 41, 743 N.E.2d 188 (3d Dist. 2000) (citing

South Energy Corp.

v.

Pollution Control Board,

275 Ill.App.384,

655

N.E.2d 304 (1995)).

Instead, under Section 40.1, such a party has only a statutory right to fundamental fairness,

9

70366146v1

813333

---

which incorporates “minimal standards of procedural due process, including the opportunity to

be heard, the right to cross-examine adverse witnesses, and impartial rulings on the evidence.”

Id.

(citing

Daly v. Pollution Control Board,

264 1ll.App.3d 968, 637 N.E.2d 1153 (1994)).

In this case, every party was provided the opportunity to be heard, cross-examined

witnesses and received impartial rulings from the hearing officer. The applicant provided

literally thousands of pages of material to support its application and followed all of the notice

procedures required. The County held hearings from November 18, 2002 through December 6,

2002, at which time any member of the public was allowed to present comment and those who

registered were allowed to completely participate in the hearings, which involved literally

hundreds of hours of questioning, leaving no stone unturned as to this Application. In the

discovery associated with this IPCB review, the objectors took depositions ofnine County Board

members, five Kankakee County employees, and two WMII employees, in an attempt to

discoverThefundamentalPetitionersfairnessassert issues.that

the1 hearings are fundamentally unfair under a variety of

equally specious claims. The Petitioners, the City of Kankakee, Merlin Karlock and Michael

Watson, all claim fundamental unfairness based upon an alleged unavailability of the operating

record of WMII, alleged cx

parte

contacts and alleged pre-adjudication of the Application by the

County. Karlock and the City of Kankakee additionally assert fundamental unfairness based

upon an alleged failure of the applicant to comply with local siting ordinances and on the

The depositions of all of these individuals were admitted into the record as evidence; however, any

questioning regarding the County’s Solid Waste Management Plan contained within these depositions was

admitted only as an offer of proof as the hearing officer ruled that such discovery and evidence was beyond

the purview of a Section 40.1 hearing.

IPCB

Ti. 5/5/03 at 46-47. The County also objected to any

questioning or the admission of any evidence regarding pie-filing contacts or negotiations concerning the

host Agreement, however, the hearing officer denied those objections.

IPCB

Tr. 5/5

103

at 35-45. The

County reiterated its objections in a motion to the hearing officer and stands by those objections and

reiterates them here to the IPCI3. Those depositions were entered as IPCB Hearing Officer’s Exhibits 1-IS,

18. IPCI3 Ti.

5/5/03 at

58-62.

10

70366146v1 813333

---

grounds that the Application was not “certified as complete.” Petitioner Runyon makes no

fundamental fairness arguments.

A.

There is no evidence of pre-adjudication of the merits by the County Board.

The decisionmaker in this case was the Kankakee County Board. Depositions were taken

of numerous County Board members, none of whom testified that they had prejudged the merits

of the Application in any.

(See

deps. of Leo Whitten, Michael Quigley, Elmer Wilson, George

Washington, Jr., Douglas Graves, Pamela Lee, Leonard Martin and Karl ICruse). As a matter of

fact, none of these witnesses were specifically asked by any of the Petitioners whether they

prejudged the Application in any way.

Id.

Unlike the

Town and Country

case, which was recently heard by the IPCB, in this case

there is no evidence that a pre-hearing was held in front of the County Board before the

Application was filed.

See County of Kankakee, et aL v, City of Kankakee, Town and Country

Utilities, Inc., et aL,

PCB 03-31, 03-33 and

03-35

(January 9, 2003). In

Town and Country,

the

City Council hosted a “special presentation” by the applicant, less than one month before the

application was filed, at which time the applicant made a presentation through its expert

witnesses concerning the consistency of the application with the 39.2 criteria and impugned the

credibility of objector’s witnesses that might appear at the official hearing.

Id.

There was also

evidence that the applicant in

Town & Country

was involved in the City’s strip annexation ofthe

area where the proposed landfill would be located and was extensively involved in negotiation of

a Host Agreement with the City, and even assisted the City in the creation of its own siting

ordinance.

Id.

In

Town & Country,

a procedure was employed by the City which required

individuals to register to participate in the hearing at the first night of the hearing; however,

numerous members of the public were not allowed into the hearing room that night, thereby

111

7O366~46vl513333

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creating the potential that members of the public were barred from participating in the siting

hearing at all.

Id.

Indeed, two members of the public testified that they were barred from

participating in the hearing when they desired to do so, though one of the members was

eventually allowed to participate several days after the commencement of the hearing.

Id.

The

IPCB ultimately held that even despite the pre-filing contacts, the pre-hearing of the Application,

and the procedural irregularities at the hearing itself, that the proceedings were fundamentally

fair.

Id.

In this case, it is obviously much clearer that the proceedings were fundamentally fair

because here there is none of the evidence of pre-adjudication of the merits of the Application

and collusion between the Applicant and the siting authority, as existed in

Town & Country.

Rather, in this case, the primary argument of the Petitioners is that the language ofthe County’s

Solid Waste Management Plan somehow shows a pre-adjudication of the Section 39.2 landfill

siting hearing. In an attempt to support this argument, the Petitioners are forced to rely upon

evidence that was only submitted as an offer of proof and was never admitted at the IPCB

hearing because the hearing officer appropriately ruled that any evidence concerning passage of

the Solid Waste Management Plan is irrelevant and inadmissible pursuant to

Residents Against

the Polluted Environment v. Illinois Pollution Control Board,

293 Ill.App.3d 219, 687 N.E.2d

552 (Ill.App.3d Dist. 1997). IPCB Tr. 5/5/03 at 48. The Court in

Residents

explicitly held:

We agree that Section 40.1 does not authorize the Board to review the process

involved in the County’s amendment of its Plan. The Appellants do not cite, nor

do we find, any statutory orjudicial authority which would allow evidence to be

presented concerning the County’s amendment of its Plan. Indeed, the express

language of the Act indicates that the purpose of the siting process is to determine

whether the proposed facility

complies

with the County’s Plan,

415 ILCS

5/39.2(a)(8)(West 1994). The Act does not authorize an inquiry into the County’s

prior

Amendment

of the Plan. Rather, the adoption and amendment of a solid

waste management plan is governed by the Local Solid Waste Disposal Act

(415

ILCS 10/1, et seq. (West 1994)) and the Solid Waste Planning and Recycling Act

12

70366146v1 813333

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(415 ILCS

15/1,

et seq. (West 1994)). Neither of these Acts authorizes the Board

in a siting approval appeal to review the procedures used by a county in adopting

its Solid Waste Management Plan.

Id.

at 555.

The

Residents

case also noted that the Illinois Supreme Court in

E&E Hauling

held that

even if a county previously approved the landfill by ordinance, such did not render the siting

proceeding fundamentally unfair and was not indicative of prejudgment ofthe adjudicated facts.

Id.

(citing

E&E Hauling v. Pollution Control Board,

107 Ill.2d 33, 43, 481 N.E.2d 664, 668

(1985)). Simply stated, the amendment of the Solid Waste Management Plan is beyond Section

40.1 review of a Section 392 hearing and rather the only issue that must be decided is whether or

not the application is consistent with the Plan.

Nonetheless, if somehow the IPCB decides that the amendment of the Plan may be

considered, in this case there is absolutely no evidence that the amendment of that Plan resulted

in bias upon the decisionmakers at the siting hearing. The Plan as amended was never even

admitted into evidence at the County Board hearing and was only put into the record at the IPCB

hearing as an offer of proof IPCB Tr. 5/6/03 at 96-98. Therefore, if the petitioners are

somehow relying on the language of the Plan as evidence of the pre-adjudication of the merits,

their claim fails as that Plan was never admitted into evidence.

Furthermore, the Kankakee County Solid Waste Management Plan at issue in no way

provides that an application by WMII would be approved by the County Board at a Section 39.2

hearing. Rather, the Plan as amended only provides that “the only exception to this restriction

(on landfilling in the County) is that an expansion of the existing landfill on the real property that

is contiguous to the existing landfill would be allowed under this Plan.” IPCB Hrg. Watson Ex.

7. There is nothing in this language that indicates an obligation, agreement or even bias toward

siting the landfill. Rather, the language makes it clear that landfilling is not favored by

Kankakee County except that an expansion of the existing landfill is consistent with the County

13

70366146v1 M3333

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Plan because it limits the impacts to the County to the area that is already affected by a landfill

while assuring sufficient capacity for the next 20 years.

Petitioner Watson suggests that somehow the Host Agreement, which was negotiated

well before the application was ever filed, displays a pre-adjudication of the merits. However,

the Petitioner provides no explanation for this conclusion and indeed the document on its face

explicitly provides that “nothing in this

Agreement

shall affect or obviate the County’s obligation

under 415 ILCS 5/39.2 to fairly and objectively review and decide the Siting Application to be

filed by Waste Management.” Host Agreement p.2 (Cl at Tab C of Additional Information).

The Host Agreement further provides that “Waste Management conclusively acknowledges that

no representations, promises, or assurance, of any kind or nature, have been made by Kankakee

County, its officials, officers, employees or servants, to any of the Waste Management’s

directors, officers, and employees as to the outcome of any such Siting Application

proceedings.’ Cl at Tab C ofAdditional information, p. 2.

It is well established that an adoption of a Host Agreement between an applicant and a

decisionmaker is a legislative function, which is not an indication of pre-judgment or bias.

See

Residents Against a Polluted Environment v. County of LaSalle and Land Comp.,

PCB 96-243

(Sept. 16, 1996). In the

Residents

case, the IPCB upheld a hearing officer’s refusal to allow

petitioners to introduce evidence regarding the adoption of a Host Agreement between the

applicant and the decisionmaker.2

Id.

1

In a pleading filed with the IPCB hearing

officer,

the County objected to the admission of any evidence

concerning the adoption of the Host Agreement; however, said objection

was

overruled. The

County

reiterates its objection noting that the only time that evidence of prefihing contacts is discoverable is when

there is evidence of specific instances of fundamentally unfair communications occurring before an

application is filed.

See Land and Lakes Co. v. Village of Rorneoville,

PCB 92-25, Slip 0p. at 4 (June 4,

1992);

DiMaggio v. So/id Waste Agency of Northern Cook County,

PCB 89-138, Slip Op. at 7 (Oct. 27,

1989). Furthermore, the Third District established that elected officials are presumed

to act

objectively and

unless

there is a showing of bias and specific instances of fundamental unfairness, discovery on such

prefiling communications will not be allowed,

Residents,

687 N.E.2d

556-557.

14

7036646,,I

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Watson makes the unsupported conclusion that the City had “actual obligations to

approve the application” but fails to identify any evidence to support such a bald-faced and

incorrect statement. Apparently, Watson is suggesting that the payment made by WMII to the

County at the time of the execution of the Host Agreement obligated the County to accept

WMII’s siting application. Watson ignores the plain language of the Host Agreement, which

explicitly provides that the Agreement in no way affects the County’s obligations to conduct an

impartial 39.2 hearing. Furthermore, the payment that was made was in consideration of

removing a restriction on the existing landfill from accepting out-of-county waste.

See

Host

Agreement, p.3 (Cl at Tab C of Additional Information). There is no indication in the Host

Agreement that this payment was in any way contingent upon approval of a subsequent

application for expansion, nor was the payment to be returned if siting approval was not granted.

Therefore, Watson’s assertion that there was an obligation on behalf of the County to site the

landfill is simply false.

Another argument of the Petitioners of alleged evidence of pre-adjudication of the merits,

surrounds the testimony of one Board member, Leonard “Shakey” Martin. According to the City

and Mr. Karlock, Mr. Martin allegedly testified that siting approval was a “foregone conclusion.”

See

City Br. at 9, Watson Br. at 28. However, a review of Mr. Martin’s testimony clearly shows

that he never testified that there was any pre-adjudication of the merits of the Application. As a

matter of fact, Mr. Martin never even used the words “foregone conclusion” and, rather, that was

a statement made by counsel for the City of Kankakee. (Martin, 15). Indeed, the fact that Mr.

Martin himself voted against the Application is evidence that there was no pre-adjudication of

the merits of the Application.

15

70366146v 813333

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Mr. Martin did not testify that he ever heard a Board member indicate that he would not

give the Application fill and impartial consideration. Nowhere within Mr. Martin’s testimony is

there a description of pre-adjudicatory bias on behalf of a County Board member. None of the

County Board members were even asked by any of the Petitioners, whether they pre-adjudicated

the merits or believed they were not impartial. There is absolutely no evidence gleaned from any

of the depositions that a meeting took place between County Board members wherein the

Application was pre-adjudicated or a decision was made before the 39.2 hearing, as occurred in

the

Town and Country

case. Regardless, even in

Town and Country,

the proceedings were still

found fundamentally fair.

On the contrary, the Board members testified that they did not even discuss the

Application amongst themselves until the conclusion of the evidence.

(See

Deps. of Weisman at

12, 25;

Washington at 20; Wilson at 9). No decision was made before a vote was taken.

(Wilson, 17). After the Application was flied, the County Board members did not communicate

with Charles Helsten, Richard Porter or any Hinshaw & Culbertson attorneys who represented

County staff at that time. (Dep. ofPam Lee, 62). Additionally, there is no evidence any Board

member communicated with the applicant in any way after the Application was filed, and, on the

contrary, there is explicit evidence that no such communications took place. (Dep. of Kruse, 33-

34; Graves, Pg. 21-22). There is no evidence that the Planning and Zoning Committee or the

Planning Commissioner spoke with the Applicant after filing (Graves, 21). There is also no

evidence of County staff or its attorneys communicating with the applicant after filing and before

decision.

(See

Martin, 39; Graves, 21). Furthermore, there is absolutely no evidence that any

member of the County Board even spoke with County staff or Planning Committee members

about the Application after it was filed and before decision. (Kruse, 33-34; Graves, 21-22). As a

16

)0366146v1 813333

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matter of fact, Mr. Martin also testified that he is not aware of any conversations between the

attorneys for the County Board with the attorneys for the County staff after the filing of the

Application for the decision. (Martin, 38-39). Finally, the testimony that the City relies upon of

Mr. Martin concerning “foregone conclusion” actually was as follows:

“Q.

From March of 2002 until August of 2002, only looking at that time period, in

those time periods did you share your belief that the site had been pre-selected with other

members of the County Board?

(Objection by County attorney) The witness never testified to that.

A.

When you say share, what do you mean?

Q.

Talk. Communicate in any way.

A.

I would sayno.

Q.

At that point in your mind was that a foregone conclusion?

A.

It seemed that way so there was no use talking about it.” (Martin,

15)

Therefore, Mr. Martin testified that he actually never had any communication with

another Board member wherein that Board member indicated an intention to vote in favor of the

Application. On the contrary, Mr. Martin admitted that he never had any actual communication

with any Board members about that topic. The record is not clear that Mr. Martin had any

opinion at that time that any Board members were biased in favor of the landfill. Furthermore,

even if he had that opinion, it is not based on any factual evidence which was admitted in the

record at the IPCB hearing and, accordingly, is not a sufficient basis for a finding of pre-

adjudication.

An example of the desperation of the Petitioner’s arguments is an additional argument

made by Defendant Karlock that somehow language used in the invoices of Hinshaw &

Culbertson is evidence of pre-adjudication of the merits or bias. Mr. Karlock points out that

certain invoices from Hinshaw & Culbertson to the State’s attorney of Kankakee County, Ed

17

70366146v1 813333

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Smith, reference “Kankakee County Landfill.” These invoices were addressed appropriately to

Ed Smith at 450 East Court Street, Kankakee, Illinois, 60901-3992 (which is the State’s

Attorney’s office); however, the invoices also reference Kankakee County Landfill.

The affidavit of Joan Lane, Secretary to Attorney Charles Helsten, explains that when

Hinshaw & Culbertson and Mr. Heisten were first hired by Kankakee County State’s Attorney,

Ms. Lane drafted the file intake sheet and the matter was referred to as “Kankakee County

Landfill.” However, Ms. Lane testified in her public comment, via affidavit, that at no time has

Hinshaw & Culbertson represented the Kankakee County Landfill or its operator, WMII, and

rather it has always been retained by either the Kankakee County State’s Attorney, Kankakee

County, or Kankakee County staff

See

Public Comment No. 3. Furthermore, Mike VanMill,

Kankakee County Planning Director, testified by affidavit that “at no time did the State’s

Attorney, Kankakee County or Kankakee County staff retain Hinshaw & Culbertson or Mr.

Helsten to represent WMII, the operator of the Kankakee County Landfill.”

See

Public

Comment No. 4, Par. 6. All of Hinshaw & Culbertson’s invoices have been paid by the County

of Kankakee.

Mr. Karlock asks the IPCB to apply the reasoning of

Concerned Citizens for a Better

Environment v. City ofHavana,

PCB 94-44 (May 19, 1994) by making a ruling of fundamental

unfairness as a result of the mere clerical error referencing “Kankakee County Landfill” on the

invoices ofHinshaw & Culbertson, The

Concerned Citizens

case is in no way analogous to the

case at bar.

Concerned Citizens

involved alleged bias of the hearing officer, rather than an

attorney for County staff. In

Concerned Citizens,

the IPCB held that the same standard for

determining bias of a decisionmaker can be applied to a hearing officer. PCB 94-44, slip op. at

8. That standard requires a determination that a disinterested observer might conclude that the

18

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813333

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hearing officer had adjudged the facts, as well as the law of the case, in advance of the hearing.

Id.

In this case, there is no allegation that the hearing officer or the decisionmakers were biased

by the Hinshaw invoices referring to “Kankakee County Landfill.” Rather, at the time of the

siting process, Attorney Heisten represented County staff and did not even represent the

decisionmaker and was certainly not the hearing officer. C1244-1272, identifying Helsten as the

attorney for the County ofKankakee Staff.

Furthermore, in the

concerned Citizens

case, the hearing officer was actually employed

by the applicant, the applicant had the power to terminate her at will, and the applicant paid the

hearing officer’s invoices directly. In this case, there is no evidence that Attorney Helsten was

ever paid by WMII, that WMII in any way hired Mr. Helsten, or that that WMII could ever

tenninate Mr. Heisten’s employment. On the contrary, the County Board members, Mr. Mike

VanMil, and Ms. Lane all indicated that the County hired Attorney Helsten, who represented

County staff during the siting process.

Finally, in the

Concerned Citizens

case, the applicant exercised editorial control over the

documents prepared by the hearing officer. There is absolutely no evidence that any documents

prepared by Attorney Helsten were controlled, edited or drafted by WMII. Once again, even if

such evidence existed, it would be irrelevant as Mr. Heisten did not have any decision-making

authority, was not the hearing officer, did not represent the decisionmaker, and did not even have

any communications with the decisionmaker once the Application was filed.

Finally, even if the reference to Kankakee County Landfill’ had not been a mere clerical

mistake, it would still be innocuous as it is merely a file identifier and indeed all of the work that

Hinshaw & Culbertson has done on behalf of Kankakee County in some way related to the

Kankakee County Landfill or the law concerning Solid Waste Management. At no place within

19

70366146v1 8)3333

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the invoices of Hinshaw & Culbertson is there any indication that WMII was the client of

Hinshaw & Culbertson concerning the Kankakee County Landfill or the law concerning solid

waste management. Accordingly, the Petitioner’s argument that somehow there was collusion

between WMII and Kankakee County is an obvious fabrication on the part of the Petitioners, and

the claim ofpre-adjudication on the merits is unfounded.

B.

There Were

No

Kr Park

Communications

Between The Decisionmaker And

The Applicant.

Pursuant to the aforementioned testimony, there is no evidence in this case of any

communications between the Applicant and the County Board after the filing and before

decision. As a matter of fact, the Planning Commission, the Planning and Zoning Committee,

the staff attorneys and the staff had no communications with the Applicant after filing and before

decision, even though they were not decisionmakers,

(See

VanMill, 34, previously cited

testimony of County Board members). Nonetheless, the City of Kankakee and Petitioner Watson

misconstrue the facts of this case in an attempt to argue that there was some type of improper cx

pane

communication. Specifically, these Petitioners refer to testimony of Leonard Martin at

pages 23-24 concerning communications of Charles Helsten with WMII about the special

conditions which were imposed by the County Board on January 31, 2003. Mr. Martin was

asked whether Mr. Heisten had any contact with WMII regarding those conditions. to which Mr.

Martin replied that he believed Mr. Helsten did. (Martin, 23). He was specifically asked “when

do you believe he had contact with WMII regarding those conditions” to which he responded “I

think shortly after the conditions were set into effect.” (Martin, 23)(emphasis added). The

record establishes that those conditions were put into effect on January 31, 2003, the date that the

County Board approved the Application with conditions. The communications about the

20

70366)46v) 813333

---

meaning of the conditions, therefore, must have occurred after the decision and were, thus, not

improper in any way.

Despite this clear testimony ofMr. Martin, the Petitioners attempt to deceive the IPCB by

using testimony of Mr. Martin at a time when he was obviously confused as to the chronology of

events. Specifically, he was later asked “before January 31st,

- -

let’s focus on a time before

January 31st. Do you know whether Mr. Helsten had contact with Waste Management?” And

the answer was “1 believe he was.” The attorney for the City followed up “you believe he did

have?” And the answer was “yes.” Mr. Martin however clarified two questions later that that

communication happened at a Board meeting and when Mr. Martin was asked if that time period

was before January 31, 2003, he testified “I can’t be sure of that.

. . “

(Martin, 24). He was then

later asked by the attorney for Mr. Watson about the conversations concerning the conditions and

was specifically asked “did those conversations occur before or after the Regional Planning

Commission made the recommendation?” to which Mr. Martin responded “after.” He was then

asked “did those conversations occur before or after the siting application was ruled upon.” Mr.

Martin was confused as to what Watson’s attorney meant by “ruled upon” and Watson’s counsel

explained that there was a Board meeting on January 31, 2003 when the Application was

approved and Mr. Martin explicitly testified “yes it would be after that.” (Martin, 38) (emphasis

added). Thereafter, Mr. Martin testified on two different occasions that the communications Mr.

Helsten had with WMII took place after the conditions were imposed on January 31, 2003.

(Martin, 39 and 49). It is clear that after

Mr.

Martin was given the appropriate reference point,

he unequivocally testified that Mr. Helstens communications concerning the conditions took

place after January 31, 2002. Furthermore, the Affidavit of Attorney Heisten definitively

establishes no communications took place with the Applicant or its counsel about the conditions

21

7O366I46~’I8~3333

---

until after the decision was rendered. (Affidavit of Helsten, attached to the County’s ‘Objection

to Depositions” filed with the IPCB Hearing Officer on 4/23/03).

The attorneys for the City and Mr. Watson failed to inform the IPCB that Mr. Martin

clarified his testimony during the deposition and unequivocally testified that he was unaware of

any communications of Helsten with the applicant before the decision was rendered by the

County Board. Furthermore, even if such communication had taken place (which it did not) that

communication would not have been fundamentally unfair as Mr. Helsten did not represent the

decisionmaker at that time and, instead, represented the County staff as is admitted by the City at

Pg. 9 of its brief. Furthermore, the transcripts at the hearing established that Mr. Helsten

represented County staff and Ms. Elizabeth Harvey represented the County Board which was the

decisionmaker,

(See

Lee, 62).

As further evidence of the Petitioner’s extreme desperation to find fundamental

unfairness in this proceeding and to misconstrue and mischaracterize the record, Petitioner

Watson goes on to argue that this testimony of Mr. Martin is of “particularly heightened

concern” in light of the statement of Dale Hoekstra that Helsten was “our attorney.”

(See

Watson Brief 30-31). At no time did Mr. Hoekstra ever testify that Attorney Charles Heisten

was the attorney for WMII. The reference at Page 47 of Mr. Hoekstra’s deposition is merely a

typographical error made by the court reporter as Mr. Hoekstra was describing the individuals

that were involved in the negotiation of the Host Agreement (before the Application was ever

filed). Those individuals were “Mr. VanMill, Ms. Lee, Mr. Quigley, Mr. Graves, our attorney,

and Mr. Helsten.” The court reporter apparently inadvertently put the word “and” before the

words “our attorney.” Obviously, WMII’s attorney (Dennis Wilt) was involved in the drafting of

a Host Agreement and Mr. Helsten was the attorney for the County at that time. It is undeniable

22

7O366~46vI813333

---

that the reference to “our attorney” is a mere typographical error in the deposition transcript as

there were no follow-up questions by any parties about a reference by Dale Hoekstra of Mr.

Helsten being “our attorney,” which would have been a shocking revelation

This

misrepresentation by Watson is particularly troubling in light of the ample evidence in the

depositions and discovery that Mr. Helsten was hired to represent the County of Kankakee and

the complete lack ofevidence that he had ever represented WMII.

The only other allegation of an improper

exparte

communication is also contained within

Watson’s brief about a purported communication between the attorney for the Kankakee County

Board (Elizabeth Harvey) and the attorney for WMII (Donald Moran). However, the record

contains absolutely no evidence of any such communication ever occurring because the hearing

officer sustained the objection to admitting the answers to interrogatories as evidence and only

allowed them as an offer ofproof. IPCB Tr.

5/5103

at 141. Furthermore, Ms. Elizabeth Harvey,

attorney for the Kankakec County Board submitted an affidavit, which provides that although

she did receive a telephone call from Donald Moran after the January 16, 2003 meeting of the

Regional Planning Commission (which recommended conditions be imposed) but before the

January 31, 2003 meeting of the County Board, the call “consisted only of Mr. Moran’s

questions regarding procedure.”

See

County Ex. 2. Mr. Moran inquired as to whether there

would be an opportunity to address either the Regional Planning Commission or the County

Board regarding the special conditions, and Ms. Harvey informed him that there would be no

such opportunity.

Id.

at Par. 7. “There was no discussion regarding any substantive issue in that

January 3, 2003 phone call with Ms. Moran.”

Id.

at Par. 6. Once again, this is only a

mischaraeterization by Watson of the facts of the case which clearly establish that there were no

23

70366146,rI 813333

---

cx parte

communications between the applicant and the decisionmaker or its attorney after the

application was filed and before the decision was rendered.

Watson attempts to use certain testimony from Mr. Whitten to bolster its specious claims

of

cx pane

contacts by characterizing his testimony to assert that “give and take” occurred

between the County and WMII before the County’s decision on siting. (Watson Brief, 30). A

review of Mr. Whitten’s testimony makes it absolutely clear that the “give and take” he was

referring to was the negotiation concerning the Host Agreement which took place before the

Application was filed as Mr. Whitten references the tipping fee negotiations. (Whitten, 16). Mr.

Whitten was specifically asked “did you hear anything about the negotiations that occurred

between County and WMII between March 1, 2002 and January 31, 2003” to which he

responded “no.” (Whitten, 18). On redirect, Mr. Whitten was asked “you don’t have any

personal knowledge that any Board member ever spoke with WMII after they filed their

application and before the decision” to which he responded “I have no proof of that, no.”

(Whitten, 28). He was then asked “isn’t it true that the Board was counseled not to have any

such communication” to which he responded “yes.” (Whitten, 28).

Therefore, nothing in Whitten’s deposition contradicts the testimony of the other Board

members that there were no

cx par/c

communications with WMII. There simply is no evidence

of any improper

cx par/c

communications, and the Petitioner’s claim of fundamental unfairness

should be rejected and the County Board’s decision affirmed.

C.

The Alleged Unavailability Of Certain Records Prior To The Siting Hearing

Did Not Amount To

Fundamental

Unfairness.

Section 39.2(c) of the Act required that WMII file a copy of its request with the county.

The request was required to include: (i) the substance of the applicant’s proposal, and (ii) all

documents submitted as of that date to the IEPA relating to the proposed facility. 415 ILCS

24

70366146v! 813333

---

5/39.2(c). All documents or other material on file with the county board were to be made

available for public inspection at the office of the county board and copies provided upon

payment ofthe actual cost of reproduction.

Id.

Petitioners City of Kankakee, Karlock and Watson allege that the unavailability of the

operating record of the applicant prior to the siting hearing rendered the proceedings

fundamentally unfair. However, this is clearly not the case. While Petitioners assert that the

operating record was not available for public inspection from the County of Kankakee, it was in

fact available at the County Clerk’s office. Cl244 at 43-44. Additionally, the entire application

was available at four other locations, including the Kankakee Library, Bourbonnais Library,

Hoppel Central Library and Bradley Library.

Id.

In fact, a sign was posted in the County Clerk’s

office listing the other locations where the application was available. (Dep. of Ester Fox, 28-29).

Moreover, even if the entire application was not available prior to the hearings, it was undeniably

available beginning on the first day of the siting hearings and, therefore, did not render the

proceedings fundamentally unfair.

Petitioner Watson also asserts that the property value protection plan was not available;

however, this claim is simply erroneous. The property value protection plan, consisting of

Exhibits A- 1 and A-2 to the Host Agreement, was a part ofthe Application filed by WMII with

the County Board on August 16, 2002. C1253 at 91-96. in fact, the transmittal letter filed with

the application on August 16, 2002 specifically states that the materials filed include Host

Agreement Exhibits A, A-i and A-2, and the record on file with the County Clerk specifically

included those documents. C2371; C1253 at 96, C1254 at 5-6. Therefore, anyone who obtained

a copy of the application filed on August 16, 2002 would have obtained the property value

25

70366146v1 813333

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guarantee plan. It is obvious that the objections merely failed to acquire the reified Application.

Furthermore, copies of that agreement were passed out at the hearing. (C1245 at 4-6).

Even assuming

arguendo,

that the operating record was “unavailable” until the siting

hearing because a county employee did not specifically direct an objector to the place of its

filing, this does not mean that the hearing lacked fundamental fairness. The IPCB has repeatedly

held that the unavailability of some documents in a siting application does not render a

proceeding fundamentally unfair.

See Village of LaGrange v. McCook Cogeneration Station,

L.L.C., PCB 96-41 (Dec. 1995);

Tate v, Macon County Board,

PCB 88-126,

afJ’d Tate v. Illinois

Pollution Control Board,

188 Ill.App.3d 994, 544 N.E.2d 1176;

Town of St. Charles v. Kane

County Board and Elgin Sanitary District,

PCB 83-228, 229, 230 (consolidated) (March 21,

1984),

vacated on other grounds, Kane County Defenders v. Illinois Pollution Control Board,

129 Ill.App.3d 121, 472 N,E.2d 150 (3d Dist. 1984);

Concerned Citizens for a Better

Environment v. City ofHavana,

PCB 94-44 (May 19, 1994).

The IPCB in

Tate

held that “an abbreviated siting application (one without technical

supporting documents) is acceptable where, as here, such materials were available prior to the

close of the hearing process.” PCB 88-126, slip op. at 4. Additionally, the IPCB in

Village of

LaGrange

and

toncerned Citizensfor a Better Environment

held that applications that were not

complete when filed did not render the siting hearing fundamentally unfair because they were

supplemented at the siting hearing. PCB 96-41, slip op. at 9; PCB 94-44, slip op. at 11.

Specifically, the Court in

Concerned Citizens

held that “the application need not contain all

material necessary for the local governing body to make its decision.” PCB 94-44, slip op. at 11.

Finally, the Board in

Town of St. Charles

upheld a siting application that was only two pages in

length when filed and later supplemented a few days prior to the hearing. PCB 83-228-230

26

70366146v1

813333

---

(cons.), slip op. at 3. As set forth above, when an incomplete application is later supplemented at

or before a siting hearing, the lack of completeness prior to the hearing does not render the

hearing fundamentally unfair.

Additionally, Petitioners’ arguments must fail because they have not demonstrated

prejudice. It is well settled that the public’s inability to inspect documents will not result in

fundamentally unfair proceedings unless there has been some prejudice demonstrated as a result

ofthe missing documents.

See Tate,

188 Ill.App.3d at 10t7, 544 N.E.2d at 1191;

see also Sierra

Club

v.

City of Wood River,

PCB 95-174 (1995);

Landfill 33 v. Effingham County Board,

PCB

03-43, 52 (consolidated) (Feb. 20, 2003);

Spill v. City ofMadison,

PCB 96-91 (March 21, 1996).

In

Tate,

the Court considered whether siting proceedings were fundamentally unfair when the

applicant failed to file documents submitted by the applicant to the IEPA. 188 Ill.App.3d at

1016-17, 544 N.E.2d at 1191. In finding that the absence of those documents did not result in a

fundamentally unfair hearing, the Court explained that the record demonstrated that “the

documents were on file with the IEPA and were public record, and that the Committee held

several hearings after the documents became available to petitioners so that petitioners’ witnesses

certainly had an opportunity to review the documents before testifying.” 188 Ill.App.3d at 1017,

544 N.E.2d at 1191. Because the petitioners were unable to show how they were prejudiced by

the applicant’s failure to file the documents, the Court held that any error that might have

occurred would be “harmless at best,”

Id.

Like the documents at issue in

Tate,

the operating record was filed with the IEPA and

was a public record. Therefore, anyone interested in reviewing the operating record would have

been able to obtain those documents through a source other than the application. Additionally,

like the documents in

Tate,

the allegedly unavailable documents in this case were indisputably

27

7O3~6l46vt813333

---

available on the first day ofthe hearing and throughout the three weeks of the hearing, leaving

witnesses ample time to review those documents before testifying. Because no one can

legitimately assert that they were harmed by the alleged absence of the operating agreement, the

petitioners cannot possibly demonstrate that they were prejudiced without these documents, and

any unavailability ofthese documents would be harmless at best.

In their arguments, Petitioners Watson and the City of Kankakee generally allege that the

public and participants were prejudiced but fail to explicitly state how this is true, Even

assuming,

arguendo,

that the public and participants did not have access to the operating record

and property value protection plan prior to the siting hearing at every location, it is uncontested

that when the siting hearing began all of the documents were available. Therefore, the public

had plenty of time to review those documents and submit comments on those documents if they

so desired. In fact, a public comment was provided on November 26, 2002, regarding the

property value protection plan. (C1264 at

6-15).

That comment was presented by Gregory

Deck, an attorney, on behalf of residential property owners, expressing their concerns over the

property value protection plan.

Id.

Therefore, it is clear that these individuals were able to

obtain a copy of the plan in enough time to thoroughly review it and actively participate in the

hearing.

Additionally, Petitioners Karlock and City of Kankakec allege that Mr. Karlock’s

geologist, Charles Norris was prejudiced by not having parts of the operating record available to

him to review, However, Mr. Norris himself admitted that he reviewed the entire operating

record several weeks or months before the siting hearing began, having obtained it from an

independent source. IPCB Tr. 5/6/03 at 35-36, 38-40. Therefore, any unavailability of the

operating agreement could not have caused him any prejudice.

28

70366146v1 813333

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It is clear that the Petitioners have been unable to find anyone who was prejudiced by the

alleged unavailability of the operating record because the only witness to testify about that topic

at the 1PCB hearing was Mr. Norris, who admitted that he was not prejudiced and denied ever

being told that anyone else was prejudiced by being allegedly unable to review the operating

record prior to the hearing. (IPCB Tr. 5/6/03 at 35). The fact of the matter is that even though

several announcements were made at the siting hearing that the entire application, including the

operating record, was available for review at the County Clerk’s office, only Charles Norris, went

to the County Clerk’s Office requesting the operating record. (Fox Dep. Ex. 2). Mr. Norris’ only

purpose in reviewing the record he had already seen, was to verify its completeness for a

possible fundamental fairness claim. He did not need to review it to support his opinions.

(See

IPCB Tr. 5/6/03 at 35-36, 39-40). Mr. Norris was clearly not prejudiced by any alleged inability

to review that document previously from the County Clerk’s office because he had previously

reviewed that document. Therefore, the Petitioners have been unable to identify and demonstrate

that any individual was prejudiced by the alleged unavailability ofthe operating record, and they

cannot, therefore, establish fundamental unfairness.

See generally County of Kankakee v. City of

Kankakee,

PCB 03-31, 03-33, 03-35 (consolidated) (Jan. 9, 2003) (examining whether prejudice

was caused to specifically identified individuals).

To the extent that Petitioners claim that parts of the operating record were not able to be

reviewed because they were contained in microfiche, this claim must also fail. The Kankakee

County Clerk, Jeffrey Clark, and the Kankakee County Chief Deputy Clerk, Ester Fox, testified

that there is a microfiche reader in the County Clerk’s office. (Clark, 31; Fox, 35). Ms. Fox

stated that if anyone requested to use a microfiche reader, one would be made available. (Fox,

37). She also believed that all four of the libraries where the application was available had

29

7O366I46~l813333

---

microfiche readers available to the public. (Fox, 37). Because there were clearly microfiche

readers that could have been used, if requested, no prejudice was caused by parts of the

document being available on microfiche only. Again, even assuming,

arguendo,

that microfiche

readers were not available, the Petitioners have failed to demonstrate prejudice because the only

person to testify regarding the alleged unavailability of a microfiche reader was Mr. Norris, who

stated that “the microfiche was not a critical issue because I had previously obtained copies of

the operating record and I had the microfiche.” (IPCB Tr. 6/6/03 at 34).

Petitioners rely on

American Bottom Conservancy,

PCB 00-200 (Oct. 19, 2000) and

Residents Against a Polluted Environment v. County of LaSalle,

PCB 96-243 (Sept. 19, 1996) to

support their allegations that the unavailability of certain documents made the proceedings

fundamentally unfair.

However,

American Bottom

and

Residents Against a Polluted

Environment

are clearly distinguishable from the case at hand. First, in

American Bottom,

none

of the application was available for public view until merely two weeks prior to the siting

hearing, where, in this case nearly the entire application was available for review for an entire 90

days before fore the hearing. Additionally, unlike the petitioner in

American Bottom,

the

Petitioners in this case have not demonstrated that they were prejudiced by the lack of

availability. Furthermore,

Residents Against a Polluted Environment

is clearly distinguishable

because the unavailable documents in that case were never made available to the public, the

opponents or even the board members. As set forth above, all of the allegedly unavailable

documents in this case were available to anyone who wished to see them at the siting hearing at

the very latest; therefore, there was no prejudice like that found in

Residents Against a Polluted

Environment.

30

70366146v1 813333

---

Finally, Petitioner Watson’s assertion that there is no evidence that the County Board ever

received complete copies ofthe record is absolutely flawed. Watson relies on the testimony of

Mr. Wilson to attempt to establish that the entire record was not available. However, Mr. Wilson

was specifically asked if he had access to the entire record, to which he responded “yes.”

(Wilson, 20). In addition to such testimony, the facts demonstrate that the entire application was

available at all times at five different locations. (C1244 at 43-44; C1245, 37-38). Therefore,

even if the Board finds that the entire application was not available until the first day of the siting

hearing, as asserted by Petitioners, this still gave the County Board members plenty of time to

review entire the siting application before making their decisions.

Because it is clear that the vast majority, if not all, of the application was available at all

times and no prejudice was caused by any alleged unavailability, the Petitioners’ arguments must

fail,

D.

I.

There is no competent evidence that Ms. McGarr committed perjury.

Petitioner Watson contends that the testimony of Ms. Patricia McCarr made the hearing

fundamentally unfair.

However, the Petitioner’s argument must fail because there is no

competent evidence in the record to establish perjury on the part of Ms. McGarr. At the IPCB

Hearing, the Hearing Officer explicitly excluded the offer of proof presented from Ms. Mary

Ann Powers of Daley College because he correctly found that the IIPCB does not reweigh the

credibility of witnesses. (IPCB Tr. 5/5/03 at 26-30). While Petitioner Watson claims that this is

an issue of “fundamental fairness,” it is actually an issue of credibility, which the IPCB has no

power to determine.

See Worthen v. Village of Roxana,

253 Ill.App.3d 378, 384, 623 N.E.2d

1058, 1062 (1993) (explaining that the PCB may not reassess the credibility of witnesses);

31

7O366l46v~8)3333

---

McLean County Disposal, Inc. v. County of McLean,

207 IIl.App.3d 477, 480, 566 N.E.2d 26, 28

(4th Dist. 1991) (holding that the PCB is not to make new credibility determinations).

It is well-established that it is for the County Board, as the local siting authority, to

determine the credibility of witnesses,

See Land and Lakes Co. v. Illinois Pollution Control

Board,

319 Ill.App.3d 41, 53, 743 N.B.2d 188, 197 (3d Dist. 2000) In this case, at the County

Board siting hearing there were numerous questions directed at Ms. McGarr about her education

as well as a statement by one of the opponents stating that “Richard J. Daley College to my

knowledge doesn’t have a record of issuing you an Associate’s Degree.” (C1249 at 36-38).

Thereafter, Ms. McGarr stated that she would produce such a degree.

Id.

at 38. However, she

never did so. As a result of that interchange and Ms. McGarr’s failure to provide a diploma, the

County Board was free to conclude that Ms. McGarr was untruthful and it was for them, not this

Board, to so determine.

Furthermore, even if this Court were to overrule the Hearing Officer’s decision and allow

the testimony from Ms. Powers, that testimony does not unequivocally establish that Ms. McGarr

testified untruthfully and, therefore, committed perjury. In order to commit perjury, “the witness

must know that the statements being made are false.”

People v. Moore,

199 Ill.App.3d 747, 557

N.E.2d 537 (1st Dist. 1990). While Ms. Powers stated that Ms. McGarr did not graduate and did

not have enough credits to graduate (IPCB Tr.

5/6/03

at 66-67), the affidavit of Mr. HoIm, Ms.

Powers’ supervisor, states that Ms. McGarr took the required classes to obtain an associate’s

degree. (See Siting Hearing Petitioner’s Ex. 26). If these two school officials cannot decide

whether or not Ms. McGarr met the requirements to graduate, it would not be unreasonable for

Ms. McGarr to believe that she did. Consequently, the testimony presented to the IPCB does not

unequivocally establish perjury, as the Petitioners would have the Board believe.

32

70366)46v

813333

---

Finally, even if this Board finds that the testimony ofMs. McGarr regarding her degree

was erroneous, this does not require that Ms. McGarr’s entire testimony be stricken, as Petitioner

Watson suggests. Petitioners disingenuously argue that if Ms. Beaver McGarr does not have an

associate’s degree, she is not qualified to testify about criterion 3. This is clearly not the case

because it was not her associate’s degree that made her qualified to testify about criterion 3,

rather it was her vast experience, designations and certifications in real estate appraising and

consulting that made her qualified to offer opinions on compatibility of the landfill with the

surrounding area. (C1249 at 7-9). It is entirely possible that the County Board was indifferent as

to whether Ms. McGarr had an associate’s degree but still accepted her testimony as a licensed

and qualified appraiser. Therefore, even if this Board finds that it is necessary to examine the

alleged perjury, there is no basis to exclude all of Ms. McGarr’s testimony and no basis to find

the proceedings fundamentally unfair.

2.

There was no fundamental unfairness because Ms. McGarr was not

re-cross-examined.

Petitioner Watson further contends that he was “denied due process” because he was not

allowed to re-cross-examine Ms. McGarr because his counsel “prematurely terminated” his

questioning of her. (Watson Brief, 26). Not only is this a misstatement of the facts but is a

misstatement of the law because due process does not required continued and repeated cross-

examination of a witness. While Watson seems to imply that he was required to “prematurely”

terminate his cross-examination of Ms. McGarr, that is clearly not the case. After being told by

Ms. McGarr that she would present a copy of her diploma, Watson’s counsel chose to end that

line of inquiry. C1249 at 38. Because Watson did not take full advantage of his cross-

examination of Ms. McGarr, he should not be allowed the opportunity to do so on another

attempt.

33

70366146v1 813333

---

Furthermore, there was no denial of fundamental fairness because of Ms. McGarr’s

alleged inability to be cross-examined, The Appellate Court has explained that citizens in a local

siting hearing are entitled to procedures that comport with due process standards of fundamental

fairness but are not entitled to a fair hearing by constitutional guarantees of due process.

See

Tate,

188 Ill.App.3d at 1019, 544 N.E.2d at 1193. One court has explained that standards of

fundamental fairness require that “parties before a local governing body in a siting proceeding

must be given the opportunity to present evidence and object to evidence presented, but they

need not be given the opportunity to cross-examine opposing parties’ witnesses.”

Southwest

Energy Corp. v. Illinois Pollution Control Board,

275 Ill.App.3d 84, 655 N.E.2d 304 (4th Dist.

1995). Because petitioners did not have an absolute right to cross-examine Ms. Beaver McGarr

in the first place, they clearly did not have a right to re-cross-examine her. Even if this court

finds that fundamental fairness would require Ms. McGarr to be cross-examined in the first

instance

(see Land and Lakes Co. v. Illinois Pollution Control Board,

319 Ill.App.3d 41, 48, 743

N.E.2d 188,

193),

clearly fundamental fairness did not require her to be re-cross-examined when

all ofthe Petitioners clearly had the opportunity to fully examine her the first time on the issue of

her education and, in fact, did so.

E.

Any Alleged Failure

Of The

County

To

Comply

With The Local

Siting

Ordinance

Does Not Result

lii

Fundamental Unfairness.

The IPCB will not review the procedures employed in a siting proceeding to determine if

they are in compliance with a local siting ordinance, nor will the IPCB compel performance of a

local ordinance.

See Residents Against a Polluted Environment,

PCB 96-243, slip op. at 6 (Sept.

19, 1996);

Smith v. City of Champaign,

PCB

92-55,

slip op. at 3 (Aug. 13, 1992). However, that

is exactly what the Petitioners are asking this Board to do. They are asking this Board to

determine that the Board was not in compliance by: (1) failing to properly pay a filing fee, (2)

34

70366146’il 813333

---

failing to file certain documents specified in the ordinance, and (3) failing to certify the

application. Because the Petitioners are asking the Board to determine compliance with a local

ordinance, the Board should refuse to consider the Petitioners’ argument.

See Residents,

PCB

96-243, slip op. at 6.

Even if the Board decides that it will review the arguments by the Petitioners, those

arguments must be rejected because the Petitioners have failed to show a lack of compliance

with the ordinance andor prejudice as a result of any lack of compliance. Turning to the first

issue, that WMII did not pay the required filing fee, this assertion is clearly untrue. It is

undisputed that at the time of its August 16, 2002 filing, WMII paid approximately $108,000 of

the $250,000 application fee required by the ordinance. (C1245 at 18, 26-27). This is the full

amount that WMII was required to pay because WMII had previously paid the entire $250,000 to

the County when it filed its previous application with the County in March of 2002.

Id.

Of that

$250,000 originally paid, approximately $108,000 had been expended.

Id.

Therefore, WMII

was required to pay only an additional $108,000 to replenish its account and fulfill the $250,000

requirement.

Id.

In addition to paying that $108,000, WMII filed a transmittal letter indicating

that WMII’s previous application was being refiled along with a few other documents listed in

the letter that were being filed for the first time. (C1245 at 28-29). That letter specifically

requested that the previously paid filing fee be applied to the new application. (C2371).

Because WMII clearly paid the fee required to be paid pursuant to the ordinance, there was no

violation ofthe ordinance.

Turning to the next issue, that the applicant failed to file certain documents specifically

referenced by the ordinance, particularly those required by sections H(2)(c) and H(2)(d), this

argument does not demonstrate fundamental unfairness because the Petitioners have failed to

35

70366146v1 813333

---

allege or demonstrate that they were in any way prejudiced by these documents allegedly not

being contained in the application. This section provided for the filing of closing plans and

procedures related to other facilities owned by the Applicant. (Sections H(2)(c) and H(2)(d) of

local siting agreement). It is well settled that when a petitioner alleges that an applicant has

failed to follow the requirements of an ordinance, fundamental unfairness cannot be established

unless the petitioner can show prejudice.

See Gallatin National Co. v. Fulton County Board,

PCB 91-256, slip op. at 11-12 (June 15, 1992) (explaining that there was no fundamental

unfairness where petitioner was not shown to be prejudiced by applicant’s failure to follow local

siting ordinance). While Mr. Rubak, of WMII, admitted that he did not include “three or four

feet ofmaterial’ that would have been responsive to sections H(2)(c) and H(2)(d), he did provide

a summary of that infonnation and stated the he was happy to provide additional information

about that subject and did in fact do so in his testimony. (C1261 at 100-106.) There has been no

demonstration of prejudice by anyone because of the unavailability of documents that relate to

completely different facilities than the one at issue, and which Mr. Rubak labeled ‘irrelevant to

this facility.” (C1261 at 100). Furthermore, Petitioners’ argument must fail because a local siting

authority may waive a portion of its siting ordinance, if it so desires.

See Gal/atm National Co.

v. Fulton County Board,

PCB 91-256, slip op. at 12 (June 15, 1992) (holding that county could

waive the siting application fee).

Finally, with respect to the Petitioners’ argument that the application was never certified,

this argument also must fail because the record was, in fact, certified when it was previously

filed. (C2373). As set forth in the transmittal letter of August 16, 2002, only a few documents

were added to the original application and none were deleted. (C2371). Therefore, the

application filed on August 16, 2002 must have been complete, and a new certification was not

36

70366146v1 813333

---

necessary. Even assuming,

arguendo,

that the new application was not appropriately certified,

there is also no showing that the lack of such a certificate in any way prejudiced the public or

participants.

The arguments made by the Petitioners are analogous to those made in

Citizens for

Controlled Landfills,

PCB 91-89, 90 (cons.) (Sept. 26, 1991) in which a petitioner asserted that

the applicant’s failure to include in the application certain materials required by the local siting

ordinance resulted in fundamental unfairness because it deprived opponents “a fair opportunity

to prepare for the public hearing on the application and prevented the possibility for opponents to

fully prepare adequate written comment on the application.” Slip op. at 3. The Board found the

petitioner’s arguments to be factually unconvincing and held that the procedures were

fundamentally fair because: (1) adequate notice was given, (2) “a wealth of substantive

information” was prefiled; (3) three public hearings were held where anyone could cross-

examine witnesses, and (4) a 30-day written comment period was established.

Id.

Because the

citizens were clearly able to, and did, take advantage of the hearings and comment period, the

Court found that it afforded all interested parties due process.

Id.

In this case, as in

Citizens for Controlled Landfills,

it is clear that all parties were granted

due process because they were provided (1) adequate notice, (2) “a wealth of substantive

information,” including thousands of pages filed by WMII, (3) eleven days of public hearings

where anyone could participate, and (4) a 30-day public comment period. While Petitioners

point to a few documents that were unavailable to them, the fact of the matter is that the

applicant’s application was several thousand of pages in length. As such, it is no wonder that a

few documents may have inadvertently been left out. However, the absence of those documents

37

70366146v1 813333

---

does not create a fundamentally unfair hearing. If it did, it would be hard to imagine any hearing

that would be fundamentally fair.

III.

THE KANKAKEE COUNTY

BOARD’S DECISION IS SUPPORTED BY THE

MANIFEST WEIGHT OF THE EVIDENCE.

The County Board’s decision, finding that WMII had demonstrated compliance with all

applicable criteria of Section 39.2, is supported by the manifest weight of the evidence, and

should be affirmed by the IPCB. It is well-settled that, when reviewing the decision of a local

decisionniaker on the statutory criteria, the IPCB’s review is limited to the inquiry of whether the

local decision is supported by the manifest weight of the evidence presented to that local

decisionmaker.

McLean County Disposal, Inc. v. County of McLean,

207 Ill.App.3d 352, 566

N.E.2d 26, 29 (4~Dist. 1991);

1?

& E Hauling, Inc. v. Pollution Control Board,

116 Ill.App.3d

586, 451 N.E.2d

555

(2d Dist. 1983),

aff’d in part

107 Ill.2d 33, 481 N.E.2d 262, 265 (1985). A

decision is against the manifest weight of the evidence if the opposite result is clearly evident or

indisputable.

Will County Board v. Pollution Control Board,,

319 Ill.App.3d

545,

747 N.E.2d 5,

6 (3d Dist. 2001). “That a different conclusion may be reasonable is insufficient; the opposite

conclusion must be clearly evident, plain or indisputable.”

Concerned Adjoining Owners v.

Pollution Control Board,

288 Ill.App.3d 565, 680 N,E.2d 810, 818 (SUiDist. 1997),

citing Turlek

v. Pollution Control Board,

274 Ill.App.3d 244, 653 N.E.2d 1288 (Vt Dist. 1995).

Although petitioners pay lip service to the “manifest weight ofthe evidence” standard of

review, they gloss over the meaning and effect ofthat standard.3 In most cases, the arguments

raised by petitioners as to the statutory criteria are rehashing of the arguments made to the

County Board: petitioners are, in essence, asking the IPCB to review the evidence and to

For example, petitioner Watson makes the unsupported claim that an applicant must meet the criteria without the

imposition of conditions, in spite of the fact that Watson recognizes that conditions can be imposed on

siting approvals. 415 ILCS 5/39.2(e). Watson cites no authority for his claim.

38

70366)46v) 8)3333

---

substitute its judgment for the judgment of the County Board. Such substitution is specifically

prohibited by the “manifest weight” standard of review.

Where there is conflicting evidence, the 1PCB is not free to reverse merely because the

lower tribunal credits one group of witnesses and does not credit the other.

Fairview Area

Citizens Taskforce v. Pollution Control Board,

198 Ill.App.3d 541,

555

N.E.2d 1178, 1184 (3d

Dist. 1990);

Tate v. Pollution Control Board,

188 lll.App.3d 994, 544 N.E.2d 1176, 1195

(4th

Dist. 1989);

Waste Management of Illinois, Inc. v. Pollution Control Board,

187 Il1.App.3d 79,

543 N.E.2d 505, 507 (2d Dist. 1989). Merely because the local government might have drawn

different inferences and conclusions from testimony is not a basis for the IPCB to reverse the

local government’s findings.

File v. D & L Landfill, Inc.,

PCB 90-94 (August 30, 1990),

aff’d

File

‘i’.

D & L Landfill, Inc.,

219 Ill.Aat3d 897, 579 N.E.2d 1228

(5th

Dist. 1991). The burden of

proof in an appeal to the JPCB is on the petitioners. 415 ILCS 5/40.1(b).

Petitioners repeatedly misstate testimony and evidence, fail to provide citations for their

claims, and in some cases cite testimony for the exact opposite proposition of what that

testimony actually says. The County Board will point to examples of such misstatement and

misleading citations, but discusses the issue here to highlight the fact that petitioners state things,

as if they are unquestionably true, when in fact in many cases those statements are unsupported

by any evidence in the record. Perhaps petitioners, in their attempt to overturn a well-supported

decision by the County Board, hope that “if they say it, it will be true.”

A review of the record, applying the manifest weight standard, demonstrates that the

County Board’s decision on all criteria is supported by the manifest weight ofthe evidence.

39

70366146v1 813333

---

A.

manifest weight of the evidence.

The first criterion to be considered by the local decisionmaker is whether the proposed

expansion is necessary to accommodate the waste needs of the area it is intended to serve. 415

ILCS

5/39.2(a)(i).

Petitioner Watson claims that the County Board’s decision on criterion one is

against the manifest weight of the evidence. However, a review of the record belies Watson’s

contention.

C1252 atWMII4-24;presentedCl at Criterionthe

testimonyOne

tab.ofMs.SherylSmithSmithhasonextensivethe

issueexperienceof the needin

theforfieldthe

facility.of

solid4

Waste plamiing, and in reviewing service areas and solid waste nrnnagement plans in connection

with landfill siting applications. Ms. Smith reviewed waste generation and recycling rates, waste

capture rates, and the available capacity of other solid waste disposal facilities serving the

designated service area. Based upon that review, Ms. Smith concluded that there was a capacity

shortfall in the proposed service area which ranges from 59 million to 155 million tons. C1252

at 23. The capacity ofthe proposed expansion is 30 million tons. 0252 at 23. Thus, Ms. Smith

opined that the proposed expansion is necessary to accommodate the waste needs of the service

area. C1252at24.

Watson attacks Ms. Smith’s methodology, and asserts that Ms. Smith understated the

capacity of the service area, while overstating waste generation rates. However, this argument

was presented to the County Board (Cl252 at

25-59),

which chose to accept Ms. Smith’s

testimony. The hallmark of a “manifest weight” review is that questions of credibility and the

acceptance of testimony are left to the local decisionmaker.

Concerned Adjoining Owners,

680

The service area proposed by WMI1 consists of Kankakee, Cook, DuPage, Kane, Kendall, Grundy, and Will

Counties

in

Illinois, and of the Indiana counties of Jasper, Lake, Newton, and Porter, C1252 at 12.

40

70366146vi 813333

---

N.E.2d at 818. The County Board was well within its authority to accept Ms. Smith’s extensive

study of the service area, and her explanation of her methodology. Addressing several areas of

Watson’s argument demonstrates that the County Board’s decision is supported by the manifest

weight of the evidence.

Watson asserts that Ms. Smith underestimated the disposal capacity in the service area by

excluding disposal facilities which should have been considered. For example, Watson attacks

Ms. Smith’s decision not to include the Spoon Ridge Landfill’s 39.5 million tons of disposal

capacity in her calculations. However, as Ms. Smith testified, she excluded Spoon Ridge

because it has been inactive since June 1998, with no certainty if or when the facility will reopen.

Additionally, Spoon Ridge’s identified service area is waste from outside Illinois, including New

York City, and does not include the counties identified as the service area for the proposed

expansion. 0252 at 21-22. Likewise, Ms. Smith excluded other disposal facilities because they

Ms.do

notSmithaccepttestified,waste fromhowever,the servicethat

evenarea,includingand

excludedthe

projecteddisposal capacityfacilitiesofwhichrecentlylacksitedpermits.(but5

unpermitted) facilities, there is still a capacity shortfall in the service area. C 1252 at 39-43.

The County Board is free to reject consideration of facilities which are not permitted, and

to reject consideration of facilities which do not accept waste from the defined service area.

Tate,

544 N.E.2d at 1196. There must be some reasonable expectation that the disposal capacity

of a particular facility will be actually available to the service area. Indeed, it would be poor

planning to rely on disposal capacity which may never be available. Ms. Smith explained her

reasoning for including certain facilities and in excluding others, and the County Board is

Watson asserts that the Forest Lawn facility in Michigan was permitted in July 2002, and implies that this landfill

should have been considered by Ms. Smith. However, a review of the permitting document submitted by

Watson demonstrates that the Forest Lawn permit is a construction permit, not an operating permit. Cl 875.

Thus, there is no certainty, or even necessarily a reasonable expectation, that any disposal capacity at Forest

Lawn wilt be available to the service area.

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entitled to accept that explanation. In fact, in both of the two cases which Watson cites for

support for his claim that there is no need for this facility, the TPCB and the appellate court

upheld the local deeisionmaker’s decision regarding the consideration of some facilities and not

others.

Waste

Management of Illinois, Inc. v. Pollution Control Board,

175 ffl.App.3d 1023, 530

N.E.2d 682 (2d Dist. 1988);

Waste Management of Illinois, Inc. v. Pollution Control Board,

122

IIl.App.3d 639, 461 N.E.2d

542

(3d Dist. 1984).

Finally, there was no testimony presented by any witness that the proposed facility does

not satisfy criterion one. Applying the manifest weight of the evidence standard to the evidence

presented regarding need, it is clear that the County Board’s decision is supported by the

manifest weight.

B.

The County Board’s decision on criterion two (health, safety, and welfare) is

supported by the manifest weight of the evidence.

The second criterion to be considered by the local decisionmaker is whether the proposed

facility is designed, located, and proposed to be operated so that the public health, safety, and

welfare will be protected. 415 ILCS

5/39.2(a)(ii).

Extensive evidence and testimony was presented on the issue of whether the proposed

facility meets criterion two. WMII presented four witnesses, and petitioner Karlock presented

one witness. Those witnesses testified, and were cross-examined, for hours at the local hearings.

See,

e.g.,

C1254 at 56-96; C1255; C1256; C1257; C1258; C1259. WMII and the petitioners

submitted exhibits regarding compliance with criterion two, and the issue was the subject of

extensive public comment, both oral and written. One of the public comments was submitted by

County staff, in conjunction with Patrick Engineering, which was retained to assist the County

staff in its review of the application. C1318-C1373. The staff’s report and recommendation

summarized the evidence, made recommendations, suggested special conditions, and drew

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conclusions on whether the application met the statutory criteria. The County Board had

exhaustive testimony and evidence upon which to base its decision as to criterion two. The

County Board determined that WMII had demonstrated compliance with criterion two: however,

the County Board imposed twenty-five conditions on its approval of criterion two. C2349-

C235 1. Those conditions provide extra measures of insurance for the public health, safety, and

welfare.

Despite the extensive evidence presented to the County Board, and despite the “manifest

weight” deference given to the County Board’s decision, petitioners Watson, Karlock, and the

City challenge the County Board’s decision on criterion two. The majority of the arguments

raised by petitioners are not new: their claims on this criterion are simply a rehashing of the

arguments made during the local proceeding.6 Petitioners raise three categories of claims on

criterion two: I) that the location of the proposed expansion is inappropriate; 2) that there are

hydrogeological and geological concerns with the proposed expansion; and 3) that the location of

the proposed expansion has been rejected by the IPCB in a prior 1PCB decision. Petitioners

cannot prevail on any of these claims.

1.

The location of the proposed expansion is appropriate, and is

supported by the manifest weight of the evidence.

Petitioner Watson attacks testimony given by Mr. Andrew Nickodem on behalf of

WMII7, and alleges that flaws in Mr. Niekodem’s testimony demonstrate that WMII failed to

adequately investigate the location of the proposed expansion. However, Watson’s argument

regarding Mr. Nickodem’s testimony is filled with misleading citations, and outright

The County Board notes that the arguments made by Karlock and the City on criterion two are essentially

identical, down to the phrasing and order of paragraphs.

Mr. Nickodem, a licensed professional engineer who specializes in the design of landfills, was the lead designer

of the proposed expansion, and provided expert testimony regarding design issues on WMII’s behalf.

C1254 at 56-61.

43

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misrepresentations of Mr. Nickodem’s testimony. None of Watson’s claims regarding the

location of the expansion demonstrate that the County Board’s decision is against the manifest

weight of the evidence.

One example of Watson’s misleading statements regarding Mr. Nickodem’s testimony is

Watson’s statement that Mr. Niekodem “admitted” that he did not consider the location of the

facility as a factor of the design. However, the testimony cited by Watson does not support his

claim: in fact, the cited testimony contains Mr. Niekodem’s statement that he does indeed take

the location of the proposed facility into account in creating the design. In response to cross-

examination bY Watson’s attorney, wherein she asks Mr. Nickodem if he had testified that he

needs to take the location of the landfill into account in preparing the design, he answered “Yes”.

C1257 at 11. It is unclear why Watson would mislead the JPCB in this way.

Another example ofWatson’s misleading citations include Watson’s allegation that Mr.

Nickodem did not know the location of the nearest municipal water intake when designing the

facility. In fact, Mr. Nickodem testified that he took that fact into consideration in designing the

facility, but simply did not remember the location during his hearing testimony (“We looked at

that information, but I do not recall,”). (C 1257 at 30.)

Watson also twists Mr. Nickodem’s testimony that the geology of the site is not

necessary to his opinion that the design meets criterion two. Watson implies that this testimony

somehow translates into the failure WMII to appropriately consider the geology of the location.

However, when reviewing Mr. Nickodem’s cited testimony, he clearly states that the design of

the proposed facility, in and of itself, is protective of the public health, safety and welfare, even

without the geology of the site as described by WMII. The geology of the site provides an

44

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additional feature of protection, beyond the engineered aspects of Mr. Nickodem’s design.

C 1258 at 61. This is not somehow a failure of the design, but an added benefit.

Watson further misleads the IPCB regarding Mr. Niekodem’s testimony regarding a

potable well which may be located on the property to the east of the proposed expansion.

Watson states that Mr. Nickodem failed to investigate whether there was a well on the eastern

property, when in fact Mr. Nickodem testified that he reviewed all available public records

regarding wells in the area, and that no well was shown on the eastern property. Although he

was aware that there might be “something” on the eastern property, there was no documentation

to show that any well there was certified. C 1257 at 27-28. Additionally, Watson fails to inform

the IPCB that the County Board added a specific condition to its approval on criterion two,

which requires WMII to perform a field verification to locate all potable wells within 1,000 feet

of the proposed expansion. C2349, Condition 2(c). Thus, to any degree that there might be a

lack of information on nearby wells, the County Board has already required, as a condition of

siting, that WMII investigate further.

Watson again misquotes Mr. Nickodem’s testimony in Watson’s arguments regarding

plans if levels of landfill gas reach five percent of the lower explosive limit. Watson implies that

Mr. Nickodem believed that this only need be addressed if raised by the JEPA. However, Mr.

Niekodem’s testimony was much more extensive, and included an explanation that such

occurrences need to be addressed on a case-by-case basis, because the appropriate steps to be

taken depend upon the specific situation. C1257 at 56-60. Likewise, Watson glosses over Mr.

Niekodem’s testimony regarding a schedule for the installation of gas collection wells. Mr.

Nickodem testified that gas systems for individual cells will be installed when the waste

45

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thickness reaches a sufficient height. Installing the wells too early, when the waste is still

shallow, decreases the efficiency of the wells. Cl257 at 70-72.

In addition to attacking Mr. Nickodem’s testimony, Watson makes several other

misleading claims relating to the location of the proposed expansion. For example, Watson

asserts that state and federal agencies have questioned the suitability of the location for the

existing facility. In support of this contention, Watson submitted a

1995

report that stated that

the landfilled wastes are a possible source of contamination for migration pathways. However,

Watson fails to include the very next sentences ofthe report:

However, according to the IEPA, the landfill is regularly inspected, if leachate or

erosion problems occur, landfill operators are responsive with resolving problems and

mitigating contaminant migration. Based upon this information, no reconnaissance was

conducted and no samples were collected during the.. investigation. Cl889.

Thus, the report cited by Watson deals only with the existing facility (not the proposed

expansion), does not conclude that there is any actual contamination, and in fact concludes that

WMIJ is responsive to all concerns, such that there was no need to investigate further. This

clearly does not support Watson’s claim that the regulatory agencies have “seriously questioned”

the suitability of the location.

Watson further questions the leachate collection system, asserting that IEPA has found

that WMII has never been able to maintain leaehatc at the existing facility at the allowable depth.

However, the existence of one 1990 JEPA report, regarding the existing facility (C 1876-1877),

cannot, in 2002, be translated to any statement that WMII will be unable to maintain leachate in

the proposed expansion. Watson then makes statements regarding “confusing and inconsistent”

testimony regarding the depth ofthe leachate at the proposed expansion, but fails to provide cites

to any of this allegedly confusing and inconsistent testimony. Finally, on this issue, Watson

avers, without any further explanation or support, that the County Board’s decision is against the

46

?0366l46v! 813333

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manifest weight of the evidence, despite the County Board’s condition regarding leachate.8 To

the contrary, the County Board’s condition adds another layer of protection regarding leachate.

Watson’s bare assertion, without explanation or support, that issues regarding leaehate render the

County Board’s decision against the manifest weight of the evidence does not make it so.

Next, Watson attacks WMII’s proposal that leachate be recirculated in the proposed

expansion. However, Watson fails to inform the IPCB that the County Board imposed a

condition on siting approval disallowing the recirculation of leachate. C2350, Condition 2(m).

The condition prohibits the recirculation of leachate, under any circumstances for a period of at

least four years after receipt of an operating permit. After this four year period, leachate may be

recirculated only upon the express approval of the County Board. Thus, issues relating to the

proposed (but prohibited) recirculation of leachate do not show that the County Board’s decision

is against the manifest weight ofthe evidence.

Another misleading argument made by Watson is the claim that there is insufficient

information on how WMII will manage excess soil. Watson states that there will be six million

cubic yards ofexcess soil created by construction of the facility, and questions what will be done

with the excess soil. Watson fails to note, however, that Mr. Nickodem testified as to uses ofthe

excess soil (liner construction, berm construction, daily and intermediate cover). C1257 at 48.

Of course, not all of that excess soil will be created at once: the construction of the landfill is

done in stages, so that the “excess” soil is created over a number of years. During that time,

much of the soil is used at the facility.

In short, none of the issues raised by Watson demonstrate that the County Board’s

decision is against the manifest weight of the evidence. In fact, a review of the information cited

8

The County Board requires WMII to install an autontitic monitoring system to ensure that the leachate level does

not exceed one foot of head on the liner. C235 1, Condition 2(u).

47

70366146v1 813333

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by Watson actually demonstrates that there is ample evidence in the record to support the County

Board’s decision on criterion two.

2.

The ueolowv and hydrogeology of the site are appropriate, and protect

the public health, safety, and welfare.

Next, petitioners Karlock and the City (joined by Watson) attack the evidence presented

regarding the geology and hydrogeology of the site. Petitioners raise claims related to the in-situ

materials, the proposed inward gradient, the proposed groundwater monitoring program, and the

groundwater impact assessment. However, all of these arguments are based upon differing

testimony given by WMII’s experts and by Karlock’s expert. As has been well-established, the

credibility ofexperts is an issue for the local decisiomnaker. Thus, simply because the County

Board credited the testimony of WMII’s experts over Karlock’s witness does not mean that the

County Board’s decision is against the manifest weight of the evidence.

C’oncerned Adjoining

Owners,

680 N.E.2d at 818.

There is substantial evidence in the record to support the County Board in accepting the

testimony of WMII’s experts over the testimony of Karlock’s witness. Mr. Norris, who testified

on behalf of Mr. Karlock, has no actual experience in performing site characterizations or

hydrogeologic evaluations of solid waste landfills. He has never designed or operated a landfill,

never conducted a site characterization, never performed a hydrogeologic study to evaluate a

proposed landfill site, never conducted a groundwater impact assessment for a proposed landfill,

and never conducted laboratory or field permeability tests for a proposed landfill. C1267 at 32-

33.

In contrast, WMII’s experts have substantial experience in their fields, directly relating to

the development of landfills. For example, Mr. Nickodem is a licensed professional engineer

who has spent the entirety of his career (more than fifteen years) in the field of solid waste

48

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engineering. He has worked on more than 45 landfill projects, including the design of landfills.

Mr. Nickodem’s design experience includes eight landfills which involved the expansion of an

existing facility, as is proposed in this case. Cl254 at 56-60. Ms. Joan Underwood, who

testified on WMII’s behalf regarding the hydrogeological and geological aspects of the proposed

facility, is a licensed professional geologist and hydrogeologist, with twenty-four years of

experience. Ms. Underwood has worked on a number of landfill siting and groundwater

projects, and has extensive experience in performing feasibility studies relating to the siting of

landfills. She has designed monitoring systems for landfills, and has taught in the fields of

hydrogeology and geology in the University of Wisconsin system. C 1262 at 80-86; C264-C27 1.

It is clear that, comparing the qualifications and experience of the expert witnesses, the

County Board had substantial reason to credit the testimony of Mr. Nickodem and Ms.

Underwood over the testimony of Mr. Norris. Both Mr. Niekodem and Ms. Underwood have

years of practical experience in their fields, relating directly to solid waste landfills. In contrast,

Mr. Norris has no such experience. It is up to the County Board, as the siting authority, to

determine the credibility of the witnesses, to resolve conflicts in the evidence, and to weigh all of

the evidence offered.

Concerned Adjoining Owners,

680 N.E.2d at 818,

citing FACT, 555

N.E.2d at 1184. The County Board did so, and accepted the testimony ofMr. Nickodem and Ms.

Underwood.

Additionally, the County Board had the report submitted by County staff during the

public comment period. C 1318-Cl 373. That report summarized the testimony, and drew

conclusions regarding the conflicts in the testimony. Thus, the County Board had evidence from

a third party, who represented neither the applicant nor the objectors. The County staff report

concluded that WMII’s presentation regarding geology and hydrogeology was sufficient to

49

70366146v1 883333

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demonstrate that criterion two was met. C 1349. In some limited areas, the County staff

recommended conditions to remedy areas with less information than others. The County Board

imposed those conditions. Finally, it is important to note that even Mr. Norris, Karlock’s expert

witness, did not testify that the proposed facility did not meet criterion two. Mr. Norris simply

believed that the information was insufficient to make a determination on compliance with

criterion two. C1268 at

51-52.

Thus, there is no expert testimony in the record stating that the

proposed facility does not satisfy criterion two.

3.

The

IPCB

has not rejected the Location of the proposed facility.

Finally, Karlock asserts that the location of the proposed facility is “functionally the

same” as the location found unsafe by the IPCB in

County of Kankakee v. City of Kanka/cee,

First,PCB

03-31the

IIPCB’s(Januaryreversal9,

2003).of

sitingLike

thein

theother

City

argumentscase

wasregardingbased oncriterionfairly narrowtwo,

thisgrounds.claim fails.The9

applicant had performed only a single fifty foot boring in the entire proposed 256 acre waste

footprint, yet asserted that the results from that single boring trumped published regional

geological information and specific well log data for 89 wells in the vicinity of the proposed

facility. The IPCB found that the paucity of the applicant’s evidence regarding the geologic and

hydrogeologic features could not adequately rebut research which demonstrated that the Silurian

dolomite (upon which the proposed landfill would rest) is an aquifer. Under such circumstances,

the IPCB determined that the City’s approval on criterion two was against the manifest weight of

the evidence. The IPCB did not, in any way, indicate that the area in which the WMII facility is

The County Board notes that Karlock’s attorney represented Town and Country Utilities, the applicant in

City of

Kankakee,

during which he argued that the location was safe and protective of the public health

,

safety,

and welfare. In the instant case, Karlock’s attorney argues that the “functionally” same location of the

proposed WMII faculty is unsafe. This is especially ironic because Mr. Karlock’s attorney continues to

represent Town and Country in its refilled application, currently pending before the City of Kankakee after

the IPCB’s reversal ofthe prior siting. In that refilled application before the City of Kankakee, Karlock’s

attorney asserts that the location is protective of the health, safety, and welfare. Apparently, whether the

location is actually unsafe is a function ofwhich client one is repiesenting on a given day.

50

70366146v1 883333

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proposed is unsafe.

Its decision in the

City

case is based upon the applicant’s lack of

information.

City ofKankakee,

slip op. at 26-28.

Second, there are substantial differences between the proposed design of the WMI1

landfill (in this case) and the proposed design of the landfill in the

City

case. In this case, there is

a natural clay barrier between the bottom of the landfill and the Silurian dolomite. In the

City

case, the landfill was proposed to scoop down jj~ the Silurian dolomite, and thus into the

aquifer itself.

City of Kankakee,

slip op. at 13. There is a huge difference between the two

designs, and how they potentially impact the aquifer. In the instant case, the chance of an impact

into the aquifer is very low, because of the natural clay barrier between the aquifer and the

landfill. In the

City

case, there is literally no protective buffer between the landfill and the

aquifer; in fact, the landfill sits in the aquifer.

In sum, none of the claims raised by petitioners demonstrate that the County Board’s

decision on criterion two is against the manifest weight of the evidence. In fully reviewing the

evidence and testimony, and in deferring to the County Board for questions of credibility and

weight to be given, it is apparent that the County Board’s decision on criterion two is indeed

supported by the manifest weight of the evidence.

C.

The County Board’s decision

on criterion three (real estate) is supported by

the manifest weight of

the evidence.

The third criterion to be considered by the local decisionmaker is whether the proposed

facility is located so as to minimize incompatibility with the character of the surrounding area,

and to minimize the effect on the value ofthe surrounding property. 415 ILCS 5/39.2(a)(iii).

Petitioners Watson and the City contend that the County Board’s decision on this

criterion is against the manifest weight of the evidence. First, they assert that the testimony of

Ms. Patricia McGarr, WMII’s expert on valuation, is “perjured” as a result of uncertainty over

51

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whether she actually received an associate degree more than twenty years ago. The County

Board has addressed that issue above, in connection with fundamental fairness, and will not

repeat those arguments here. See Section 11(D), above. However, once again, it must be noted

that determinations as to the credibility of witnesses are left to the County Board.

Concerned

Adjoining

Owners, 680 N.E.2d at 818. Ms. MeGan was thoroughly cross-examined on the issue

ofher degree, and both WMII and the objectors presented additional evidence on the issue in the

form of exhibits and public comments. The County Board was aware of the dispute over Ms.

McGarr’s diploma, and chose to credit her testimony.’° The objectors’ disagreement with this

credit does not render the County Board’s decision against the manifest weight ofthe evidence.

Second, Watson and the City attack the testimony given by Ms. MeGarr and Mr. Larmert,

WMII’s expert on compatibility. Initially, the City raises the specious argument that, because

Mr. Lannert gave his opinion that the proposed expansion is “compatible” with the character of

the surrounding area, rather than stating that the proposed expansion “minimizes” the

incompatibility with the surrounding area, his testimony is not relevant to criterion three. The

City cites no authority for its apparent claim that a testifying expert must use exactly the same

words as used in the statute.

Additionally, the substantive effect of a statement that the

expansion is “compatible” is the functional equivalent of testimony that the expansion

“minimizes” incompatibility. Mr. Lannert clearly testified that the proposed expansion satisfies

the compatibility portion of criterion three. The County Board is entitled to accept that

testimony. The City’s argument should be summarily rejected.

10

The City makes the unsupported assertion that, because the County Board made no reference to Ms. McGarr’s

credibility, the issue of her credibility must never have been considered by the County Board. City Br. at

23. This is absolutely untrue. The issue was discussed during the public sessions of the Regional Planning

Commission and the County Board in considering the application. Further, there is no requirement that the

County Board make a written finding on the credibility of each witness. It is only logical to assume that, if

the local decisioninaker makes a finding consistent with testimony by a given witness, the local

decisionmaker accepted that witness’ testimony. The City’s incorrect and unsupported allegation should be

stricken.

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70366846v8 883333

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Both Watson and the City attack the testimony given by Ms. McGarr relating to her

valuation study.

According to these petitioners, Ms. McGarr either considered too many

transactions (Kane County transactions, transactions that petitioners assert are not properly

characterized as farmland, sales prices that petitioner characterize as aberrations1

I),

or did not

consider enough transactions @etitioners’ complaints that Ms. McGarr did not locate residential

transactions prior to 1998). However, Ms. McGarr’s testimony was straightforward: she located

all available transactions within the target and control areas in Kankakee County, and compared

all of those transactions. C1249 at 11-18. Ms. McGarr also performed a similar study in Kane

County, in order to assess the impact of a larger facility on the real estate values in the area of

that facility. C 1249 at 19-23; Cl at Criterion 3 tab. Petitioners now complain that Ms. McGarr

considered transactions in another county (without realizing, apparently, that those transactions

are used for comparative and illustrative purposes), but also complain that Ms. MeGan did not

use a sufficient number of transactions. This is a classic “Catch 22” argument, and does not

demonstrate that the County Board’s decision was against the manifest weight of the evidence.

Again, the County Board is entitled to choose to accept the testimony of a witness.

(‘oncerned

Adjoining Owners,

680 N.E.2d at 818.

D.

supported by the manifest weight of the evidence.

The fifth criterion to be considered by the local decisionmaker is whether the plan of

operations for the facility is designed to minimize the danger to the surrounding area from fire,

spills, or other operational accidents. 415 ILCS 5/39.2(a)(v).

While Watson characterizes son-ic transactions as “apparitional”, the County Board assumes that Watson intends

to characterize those transactions as “aberrations”.

53

703ö614&v)

883333

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Petitioners Watson and the City purport to challenge the County Board’s decision on this

criterion. However, while Watson states that his arguments concerning operational issues are

contained in his arguments on criterion two, the only operational issues he identifies relate to

plans in the event that landfill gas reaches five percent of the lower explosive limit (addressed

above, regarding criterion two), and to WMII’s operational history at the existing facility.

Neither of these claims can prevail.

The County Board has demonstrated that Watson’s

summation ofthe testimony on landfill gas is incomplete (see Section 111(B) above). The dispute

over how many notices ofviolation WMII may have received regarding the existing facility does

not demonstrate that WMII’s plan of operations is insufficient. Watson raises no other issues

relating to criterion five.

The City raises only one specific complaint regarding WMII’s plan of operations: a

claim that there is no monitoring system to protect against radiation hazards. The City fails to

recognize that the County Board added a special condition to its approval ofcriterion five, which

requires that WMJI install and maintain a radiation detector at the facility. C2352, Condition

5(a).

Thus, any concern regarding non-detection of radiation is addressed by Condition

5(a).

The City does refer to “other shortcomings” in the WMII plan, but fails to identify those

shortcomings.’2 Thus, the City has waived any other claim as to criterion five.

Neither Watson nor the City has identified any issue which demonstrates that the County

Board’s decision on criterion five is against the manifest weight of the evidence.

82

The City makes a reference to its arguments on criteriontwo. However, none of the City’s claims on criterion

two addressed operational issues, City Br. at 11-20, 24.

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7O366l46vJ 883333

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E.

The County Board’s decision on criterion six

(traffic

by the manifest weight of the evidence.

The sixth criterion to be considered by the local decisionmaker is whether the traffic

patterns to or from the facility are so designed as to minimize the impact on existing traffic. 415

ILCS 5/39.2(a)(vi).

Both the City and Watson challenge the County Board’s finding on criterion six. Both

base their challenges on allegations that Mr. Corcoran of Metro Transportation Group, Inc.,

WMII’s expert on traffic, used insufficient and unrepresentative data as the basis for his traffic

study. The City’s sole claim is that the amount of data relied on by Mr. Corcoran was

insufficient to carry WMII’s burden of proof However, other than simply quoting Mr.

Corcoran’s testimony regarding the number of days people from Metro were actually on site, the

City makes no further argument or identifies any specific flaw in Mr. Corcoran’s methodology.

In any event, the City fails to demonstrate exactly how Mr. Corcoran’s data is insufficient.

Watson makes similar claims about Mr. Corcoran’s data.

For example, Watson

complains that the traffic counts, performed in February, are not “representative” because traffic

counts in February would not include farming traffic, or traffic from the nearby fairgrounds,

which does not occur in winter. This assertion is just as easily reversed, to say that a traffic

count performed in the summer would not be “representative”, since farm and fairground traffic

do not occur in the winter. Watson also challenges Metro’s use of 4,000 tons per day of waste

accepted at the site, and asserts that the host community agreement between WMII and the

County allows for up to 7,000 tons of waste. Watson fails to note that WMII proposes that the

actual amount of waste accepted on a daily basis will be approximately 4,000 tons per day.

C 1252 at 87-88. There is no evidence in the record that the proposed facility will accept 7,000

55

70366146v1 883333

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tons per day. Thus, if Metro had based its study on 7,000 tons per day, Watson would have most

likely challenged that figure!

The County Board carefully considered the application’s compliance with criterion six.

That careful consideration is evidenced by the County Board’s imposition of nine conditions

regarding traffic. C2352, Conditions 6(a)-(i). It had the benefit of Mr. Corcoran’s report and

testimony (including the objectors’ cross-examination of Mr. Corcoran), as well as questions and

comments from the public and the County staff. There is ample evidence in the record to support

the County Board’s finding that criterion six is satisfied.

F.

The County Board’s decision on criterion seven (hazardous waste) is

supported by the manifest weight of

the evidence.

The seventh criterion to be considered by the local decisionmaker is, if the facility will be

treating, storing, or disposing of hazardous wastes, an emergency response plan exists for the

facility which includes notification, containment, and evacuation procedures to be used in case of

an accidental release. 415 ILCS

5/39.2(a)(vii).

The County Board found that the facility will not be treating, storing, or disposing of

hazardous waste, and thus found criterion seven inapplicable.

C2353.

Watson asserts that,

because it was undetermined whether leachate from the existing facility might be classified as

hazardous’3, criterion seven is indeed applicable. Watson cites no authority for his interpretation

of criterion seven. Watson has misunderstood the meaning of criterion seven. Criterion seven

applies only when an applicant proposes to accept hazardous waste for treatment, storage, or

disposal. It does not apply when there is a possibility that leachate generated at the facility could

become hazardous. If Watson’s interpretation were correct, there would be no need for the

qualifying statement “if the facility will be treating, storing, or disposing ofhazardous waste”.

83

Watson admits that there is no conclusive evidence that the leachate is a hazardous waste. Watson Br. at 47.

56

70366146v1 883333

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The County Board properly interpreted criterion seven to apply only when the applicant

proposes to treat, store, or dispose of hazardous waste, and thus properly found that criterion

seven is not applicable.

G.

The County Board’s decision on criterion eight (consistency with

the solid

waste management plan) is supported by the manifest weight of the evidence.

The eighth criterion to be considered by the local decisionmaker is, if the facility is

located in a county with a solid waste management plan, the facility is consistent with that plan.

415 1LCS 5/39.2(a)(viii).

WMII presented the testimony of Ms. Sheryl Smith as to the consistency of the proposed

facility with the County’s solid waste management plan. Ms. Smith has a great deal of

experience in reviewing county solid waste management plans, and has been doing so for more

than twenty years. C1253 at 44-46. She discussed the requirements of the County plan, applied

those requirements to the details of the proposed expansion, and concluded that the proposed

facility is consistent with the solid waste management plan. C1253 at 47-56. Ms. Smith noted

that the County’s plan identifies landfilling as the preferred disposal option; that the plan

identifies the existing landfill as the preferred landfill; that any expanded facility would provide

at least twenty years of disposal capacity; that the private sector provide disposal and recycling

services for the county; and that the operator of the facility and the County enter into a host

agreement. C1253 at

55-56.

Ms. Smith was subject to cross-examination regarding her

methodology and conclusions. Cl253 at 57-123; Cl254 at 4-55. Ms. Smith was the only expert

witness to testify on criterion eight.

All four petitioners purport to challenge the County Board’s decision on this criterion.

However, the City’s sole claim regarding criterion eight is its reference to its fundamental

fairness claim that the application did not comport with the requirements of the local siting

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ordinance. City Br. at 5, 7-8,

25.

As the County Board demonstrated above (see section 11(E)),

there is no fundamental unfairness resulting from the alleged failure of the application to address

all portions of the local siting ordinance. Further, the City provides no explanation as to how an

alleged failure to meet the requirements of the local siting ordinance somehow translates into

proofthat the County Board’s decision on criterion eight was against the manifest weight of the

evidence. The City’s claim does not demonstrate that the County Board’s decision is against the

manifest weight of the evidence.

Petitioner Runyon raises four claims as to the consistency ofthe proposed expansion with

the solid waste management plan.’4 However, Runyon applies the wrong standard of review,

asserting that the “preponderance of the evidence” demonstrates that the expansion is not

consistent with the plan. The proper standard ofreview ofthe siting criteria is “manifest weight”,

not “preponderance of the evidence.” Thus, Runyon’s arguments must be reviewed on a

“manifest weight” basis, and his claims regarding “preponderance of the evidence” should be

ignored. Further, the bulk of the information cited by Runyon in support of his claims are cites

to statements of attorneys and objectors (including himself), made during opening and closing

arguments, and during direct and cross examination.

See, e.g.,

Runyon Br. at

5,

6, 8, 10, 11, 12,

13, 16, 18, 19, 20, 21, 22. However, the statements made by attorneys during opening and

closing arguments, and during examination, are not evidence, and cannot be used to prove a

particular position. The same limitation is applicable to statements made by non-attorney

objectors, such as Mr. Runyon, in the context of opening and closing statements, and examining

14

Watson and Karlock raise similar claims to those raised by Runyon,

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witnesses.’5 The IPCB should not consider any such non-evidentiary statements, cited by Mr.

Runyon,Runyonassupportarguesforhisthatarguments.’the

proposed6

facility is not consistent with the solid waste

management plan, because the plan requires the existence of a valid host-fee agreement between

the County and the applicant. While Runyon admits that there is indeed a host fee agreement

between the County and the applicant’7, he asserts that the agreement is invalid. That argument

is based on the provision ofthe agreement which states:

Waste Management shall file a siting application for the Expanded Facility on or before

June 1, 2002, unless the County consents in writing to an extension of this period for

good cause shown. In the event that Waste Management does not file its siting

application for the Expanded Facility on or before June 1, 2002, and absent the County’s

consent in writing to an extension of the filing deadline for good cause shown, this

Agreement shall become null and void.

Host Agreement, Recital C (Cl, Additional Information, Tab C).

Runyon asserts that because this siting application was filed on August 16, 2002, the host

agreement is of no effect. However, Runyon ignores the plain wording of the agreement. As

petitioners admit, WMII initially filed its siting application on March 29, 2002. At the first day

of hearing on that application, on July 22, 2002, WMII decided not to go forward, based on

issues regarding pre-filing notices. Less than one month later, on August 16, 2002, WMII refiled

its application. Cl; C2; C2371-C2372. Thus, it is clear that WMII complied with the plain

language of the agreement, which requires WMII to file a siting application on or before June 1,

2002. The initial siting application was filed on March 29, 2002. The fact that WMII chose not

~

Of course, any public comment or testimony made by Mr. Runyon or any other objector as a witness is

appropriately considered as testimony or public comment,

Additionally, Runyon repeatedly cites to specific pages of the solid waste management plan. However, that plan

is not in the record, except as an offer of proof at the 1PCB hearing, as the hearing officer ruled that new

information could not be entered into the record. IPCB Tr. 5/6/03 at 96-98.

‘~

The host agreement is contained in WMII’s application. (Cl, Additional Information, Tab C).

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to proceed with that application does not change the fact that a complete and detailed application

was filed prior to June 1, 2002. The filing of the March 29, 2002 application met the

requirements of the host agreement.

Although the County Board believes that the March 29, 2002 filing met the requirements

ofthe host agreement, such that the host agreement is valid and continues in effect after June 1,

2002, it chose to add a condition clarifying that WMII must follow the host agreement as a

condition of siting. Condition 8(a) states:

The landfill operator must comply with all obligations and responsibilities of the

December 21, 2001 Host Agreement between the County and Waste Management of

Illinois, Inc.

C2352, Condition 8(a).

Thus, to any extent that there is a question as to the validity of the host agreement, the County

Board provided an extra level of assurance that WMII will comply with all obligations of the

host agreement.

Runyon next asserts that the property value guarantee program submitted by WMII,

which is required by the solid waste management plan, is insufficient. Runyon notes that the

plan requires that the required property value guarantee program be prepared by an independent

entity satisfactory to the County. Runyon claims that WMII’s property value guarantee program

(attached to the host agreement,

see

Cl, Additional Information, Tab C) was not prepared by an

independent entity. However, Runyon does not cite any evidence, beyond the above-mentioned

statements by attorneys, that supports his claim that the plan was not independently prepared.

Further, the County Board again imposed a condition on siting, which requires that the landfill

operator must employ independent appraisers acceptable to the County as part of the property

value guarantee program. (C2352, Condition 8(b)). Certainly the County Board has authority, in

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interpreting its own plan, to decide that the use of independent appraisers satisfies the

requirements of the solid waste management plan.

The other two arguments raised by Runyon relate to provisions in the solid waste

management plan which set forth factors to be considered in siting a landfill in Kankakee

County. In addition to the regulatory factors which must, under state and federal law, be

satisfied to site a landfill, the plan includes environmental, community, economic, and other

factors to be considered. Those factors (except for the regulatory factors) are not mandatory, but

are suggested considerations. (See Plan at 330-334, IPCB Hrg. Watson fix. 7.) Two of those

discretionary factors are whether the landfill is located above or near a heavily utilized water

supply aquifer, and the level of public involvement in the landfill site selection process. Runyon

asserts that neither ofthese factors were satisfied.

Initially, the County Board notes that none of the petitioners has demonstrated that these

two factors are mandatory. The clear language of the plan shows that these factors are things to

consider, not hard and fast rules. Thus, absolute compliance with these discretionary factors is

not required in order for a proposed facility to be consistent with the plan. This is illustrated by

the fact that, if the plan absolutely prohibited a landfill above an aquifer, no landfill could be

sited in northern Illinois, since the Silurian dolomite aquifer at issue in this case underlies most

of northern Illinois. (C 1266 at 27). Further, the County Board found that the proposed

expansion protects the public health, safety, and welfare. Clearly the consideration of a facility’s

proximity to an aquifer is most appropriately considered under criterion two, as it was in this

case.

As to public involvement in the site selection process, there have been a myriad of

opportunities for the public to be involved in the process. First, it must be remembered that the

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site itself was selected by WMII, not by the County. Thus, the County had no obligation or

ability to create public input opportunities prior to the Section 39.2 siting hearing. However,

WMII did keep the public informed of its plans, beginning in March 2000. C1283-C1285.

Additionally, contrary to Mr. Runyon’s assertion, the Section 39.2 siting hearing does indeed

provide an opportunity for public involvement in the broad category of landfill site selection.

The Section 39.2 siting process is an integral part ofthe overall process of “site selection”, since

a site cannot be said to be finally “selected” (at least by the County) until siting approval is

granted.

All of these claims by petitioners were raised at the hearings, yet the County Board

determined that the proposed facility is indeed consistent with the County solid waste

management plan. Once again, the County Board is entitled to accept the testimony of Ms.

Smith, who gave her expert opinion that the facility satisfies criterion eight. C1253 at

55-56.

The County Board’s decision on criterion eight, interpreting the consistency of the proposed

expansion with its own solid waste management plan, is supported by the manifest weight ofthe

evidence.

Finally, petitioner Watson attempts to reserve an argument that amendments to the plan,

in 2001 and 2002 are not valid. (Watson Br. at 47-48, footnote 12.) However, there will be no

other opportunity for Watson to make that argument, because the parties’ briefs are to contain the

entirety of their claims. Any attempt by Watson to raise such a claim in the future, either in its

“reply” brief, or through some other type of filing, should be stricken. This brief was Watson’s

opportunity to make his arguments, and he cannot reserve an argument for some later date.

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IV.

THE IPCB HEARING OFFICER RULINGS CHALLENGED BY WATSON

WERE

CORRECT, AND THERE IS NO NEED FOR FURTHER

PROCEEDINGS

Watson makes the final claim that a number of rulings by the IPCB hearing officer were

incorrect, denied him due process, and resulted in prejudice to him. He asks that the proceeding

be “remanded” for further discovery proceedings and hearings. This claim must fail. First, a

non-applicant is not entitled to full due process guarantees, but has only a right to minimal

standards of due process, including the opportunity to be heard, the right to cross-examine

witnesses, and impartial rulings on the evidence.

Land and Lakes Company v. Pollution Control

Board,

309 Ill.App.3d 41, 743 N.E.2d 188 (3d Dist. 2000). Watson received all of these

protections, including the opportunity to conduct discovery (including depositions), and two days

of hearings before the IPCB hearing officer. Second, Watson has failed to specifically identify

exactly how the complained-of rulings prejudiced him, and has failed to demonstrate that those

rulings were in error. The hearing officer rulings were correct, and should be affirmed and there

is no need for additional proceedings.

CONCLUSION

The County Board was vested with jurisdiction ofthis application for siting approval, and

the proceedings it conducted on the application were fundamentally fair. Its decision to grant

siting approval, subject to conditions, was based upon a great deal of evidence in the record and

upon hundreds of hours of testimony, and is supported by the manifest weight of the evidence.

Therefore, the County Board’s January 31, 2003 decision granting siting approval should be

affirmed by the IPCB.

Respectfully submitted,

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COUNTY OF KANKAKEE and

COUNTY BOARD OF KANKAKEE

Charles F. Helsten

Elizabeth S. Harvey

Richard Porter

Swanson, Martin & Bell

1-linshaw & Culbertson

One IBM

Plaza, Suite 2900

100 Park Avenue

330 North Wabash Avenue

P.O. Box 1389

Chicago,

IL 60611

Rockford, IL 61105-1389

312/321-9100

815/490-4900

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