(4.. ~

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEWWCLERK’S OF~E

MAR 30 2005

WASTE MANAGEMENT OF ILLINOIS, INC.)

)

STATE OF

ILLiNOIS

Petitioner,

)

Pollution Contro’ Board

)

VS•

Case No. PCB 04-186

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLINOIS,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See attached Affidavit of Service

PLEASE TAKE NOTICE THAT on March 29,

2005,

I filed with the Illinois Pollution Control

Board, an original and nine copies of the Response to Petitioner’s Motion to Compel (copies

previously served upon the parties).

Respectfully Submitted,

COUNTY BOARD OF KANKAKEE COUNTY,

ILLiNOIS, Respondent

By: Hinshaw & Culbertson LLP

F~eather

~ex~tI~o

K. Lloyd

/(

~

One of its Attorneys

HNSHAW & CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

815/490-4900

815/490-4901 (fax)

70445370v1 840423

---

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD R

CLERK’S

E C E

OFF’CE

~V~

WASTE MANAGEMENT OF ILLINOIS, INC.)

)

MAR302005

Petitioner,

)

STATE OF

ILUNOIS

)

Pollution Control Board

vs.

Case No. PCB 04-186

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLINOIS,

)

)

Respondent.

RESPONSE TO PETITIONER’S MOTION TO COMPEL

NOW COMES

Respondent, COUNTY BOARD OF

KANKAKEE COUNTY,

ILLINOIS, by and through its Attorneys, HINSHAW & CULBERTSON

LLP,

and for its

Response to Petitioner’s Motion to Compel, states as follows:

I.

PETITIONER’S MOTION TO COMPEL SHOULD BE DENIED BECAUSE IT IS

UNTIMELY.

Petitioner began deposing members ofthe Kankakee County Board on June 22, 2004 and

concluded deposing the Kankakee County Board members on November 12, 2004. During those

depositions, Kankakee County Board members were questioned about their reasons for

disapproving Waste Management’s application for expansion filed on September 26, 2003. On

the advice ofcounsel, the Kankakee County Board members refused to answer those questions.

Therefore, as ofNovember 12, 2004, Petitioner knew that the Kankakee County Board members

refused to answer questions regarding the reasons andlor bases of their decision to deny approval

to Waste Management’s Application for expansion filed on September. 26, 2003. Despite this

knowledge, Petitioner waited over four months, until March 15, 2005, to file its Motion to

Compel, requesting that this Board permit discovery as to why certain members of the County

Board to answer questions regarding their reasons for rejecting Waste Management’s

application.

1

70444348v1 840423

---

Petitioner’s untimely motion will have a detrimental effect on this proceeding because

Petitioner filed its Motion to Compel only three weeks prior to the Illinois Pollution Control

Board hearing, currently scheduled for April 6, 2005. Assuming

arguendo

that this Board

decides to grant Petitioner’s Motion to Compel, the Board hearing will undoubtedly have to be

rescheduled because the depositions of fifteen individuals cannot be taken over the course of a

few days. If, on the other hand, Petitioner had timely filed its Motion to Compel months ago,

immediately after Petitioner became aware that the County Board members were refusing to

answer certain questions, there would have been ample time to schedule the depositions of the

Kankakee County Board members over the course of several months so as not to disturb the

scheduled Board hearing if this Board found that the questioning requested by Petitioner should

be allowed. Furthermore, if this Board grants Petitioner’s untimely Motion and allows

questioning ofthe County Board members at the Board hearing, the County Board members will

have inadequate time to prepare for such questioning. It would place an onerous burden on the

County Board members to require them, with little to no notice, to recreate in their minds the

deliberative process that they underwent over one year ago. It is undoubtedly because of this

burden that courts and this Board have refused requests to delve into the mental processes of

clecisionmakers, like the Kankakee County Board.

Because Petitioner waited an unreasonable amount of time before filing its Motion to

Compel and because Petitioner’s unreasonable delay will affect the scheduled Board hearing,

this Board should deny Petitioner’s Motion as untimely.

II.

THE MENTAL PROCESS DOCTRINE PROHIBITS INQUIRY INTO THE REASONS

FOR THE COUNTY BOARD’S DENIAL OF WASTE MANAGEMENT’S SITING

APPLICATION.

Petitioner requests that this Board require Kankakee County Board members to explain

the reasoning behind their decisions to deny Waste Management’s siting application filed with

2

70444348v1 840423

---

the Kankakee County Board on September 26, 2003. However, Petitioner’s request is directly

contrary to well-settled precedent from this Board, establishing that it is generally impermissible

to inquire into the mental processes of decisionmakers.

See West Suburban Recycling and

Energy Center, L.P. v. Illinois Environmental Protection Agency,

PCB

95-119,

125 (Oct. 17,

1996);

Village ofLaGrange v. McCook Cogeneration Station, L.L.C.,

PCB 96-41 (Dec. 7,

1995);

Land and Lakes Co. v. Village of Romeoville,

PCB

92-25

(June 4, 1992);

DiMaggio v. Solid

Waste Agency of Northern Cook County,

PCB 89-138 (Oct. 27, 1989);

City of Rockford v.

Winnebago County Board,

PCB 87-92 (Nov. 19, 1987);

A.R.F. Landfill, Inc. v. Lake County,

PCB

87-51

(Oct. 1,

1987);

Ash v. Iroquois County Board,

PCB 87-29 (July 16, 1987);

Town of

St. Charles v. Kane County Board,

PCB

83-228, 229, 230 (May 19, 1984). In fact, this Board in

A.R.F.

explained that “a party’s probing of the mind of an adjudicator on the adjudicator’s

deliberation process is improper.” 1987 WL

56293,

slip op. at *2.

As. explained by this Board in

DiMaggio,

the mental process doctrine has its roots in the

United States Supreme Court case of

United States v. Morgan,

313 U.S. 409 (1941). In

Morgan,

the Supreme Court ruled that the Secretary of Agriculture could not be questioned regarding the

bases for his decision regarding minimum rates to be charged by market agencies at the Kansas

City Stockyards.

Morgan,

313 U.S. at 422. In so holding, the Supreme Court in

Morgan

explained:

The proceeding before the Secretary ‘has a quality resembling that of a judicial

proceeding’. Such an examination of a judge would be destructive of judicial

responsibility. We have explicitly held in this very litigation that ‘it was not the

function of the court to probe the mental processes of the Secretary’. Just as a

judge cannot be subjected to such a scrutiny, so the integrity of the administrative

process must be equally protected. It will bear repeating that although the

administrative process has had a different development and pursues somewhat

different ways from those of courts, they are to be deemed collaborative

instrumentalities of justice and the appropriate independence of each should be

respected by the other.

3

70444348v1 840423

---

313 U.S. at 422 (internal citations omitted).

Based on the United States Supreme Court’s holding in

Morgan,

this Board has

recognized that that the mental processes of decision makers acting in an adjudicatory role, like

the County Board in this case, shall not be examined regarding the bases for their decisions. In

fact, this Board in

Ash

stated: “One cannot invade the mind of the decision-maker. Just as a

judge camiot be subjected to such scrutiny, so the integrity of the administrative process is

equally respected.”

Ash v. Iroquois County Board,

1987 WL 56144, slip op. at *8,

citing United

States v. Morgan,

313 U.S. 409 (1941);

Citizens to Preserve Overton Park, Inc. v. Volpe,

401

U.S. 402, 420 (1971);

San Luis Obispo Mothersfor Peace v. United States Nuclear Regulatory

Commission,

789 F.2d 26, 44 (D.C. Cir. 1986);

Time, Inc. v. United States Postal Service,

667

F.2d 329, 335 (2d Cir. 1981);

United Steelworkers ofAmerica, AFL-CIO-CLC v. Marshall,

647

F.2d 1189, 1217

(D.C. Cir. 1980).

The decision to grant or deny siting approval is an adjudicative function. See

Southwest

Energy Corp. v. Illinois Pollution Control Board,

275 Ill.App.3d 84, 91,

655

N.E.2d 304, 309

(4th Dist.

1995); Waste Management of Illinois, Inc. v. Illinois Pollution Control Board,

123

Ill.App.3d 1075, 1080, 463 N.E.2d

969,

973 (2d Dist. 1984);

DiMaggio,

1989

WL 137358, slip

op. at *6. As such, county board members “don the hat” ofa judge to decide whether to grant or

deny a siting application. Like judges, the mental processes of county board members should be

protected from disclosure in order to uphold the sanctity and impartiality of the landfill siting

decision-making process. As a result, Petitioner’s request to compel the depositions of

Kankakee County Board members in order to invade their mental processes should be denied.

4

70444348v1 840423

---

III. THERE IS NO

VALID

REASON NOT TO APPLY THE MENTAL PROCESS

DOCTRINE

IN THIS CASE.

Petitioner asserts several purported reasons for ignoring the well-settled proscription from

invading a decisionmaker’s deliberative process

and

mental impressions. Specifically, Petitioner

alleges that 1) the Kankakee County Board did not

make administrative findings; 2) the County

Board’s reversal of its previous decision implies bad faith or

improper

behavior sufficient to

overcome the doctrine, and 3) the doctrine does not

protect post-decision communications. As

set forth fully below, each of Petitioner’s arguments

must fail based on precedent from this

Board, as well as persuasive

authority from federal courts, including the United States Supreme

Court. As

such, the mental process doctrine is clearly applicable in this case, and Petitioner’s

Motion to Compel should be denied.

A. THE

KANXAKEE

COUNTY BOARD MADE FORMAL

AND

CONCLUSIVE

ADMINISTRATIVE FINDINGS THAT WASTE MANAGEMENT’S

APPLICATION DID NOT MEET THE STATUTORY CRITERIA.

Petitioner’s first argument is that the mental process doctrine should not apply because

the Kankakee County Board did not

make formal administrative findings. However, Petitioner’s

assertion is clearly untrue. In fact, in denying Waste Management’s application for expansion,

the Kankakee County Board made explicit written findings, containing the vote of the County

Board as to each ofthe nine statutory criteria that the Board was required to consider pursuant to

Section 39.2 of the Illinois Environmental Protection Act. See “Kankakee County Board

Decision Regarding the Application of Waste Management of Illinois, Inc. For Local Siting

Approval of an Expansion of the Existing Kankakee Landfill,” attached hereto as Exhibit A.

These findings by the Kankakee County Board are final administrative findings that are

sufficient under Section 39.2 to provide for meaningful judicial review. See

E&E

Hauling, Inc.

v. Illinois Pollution control Board,

116

Ill.App.3d 586, 451 N.E.2d

555

(2d

Dist. 1983)

5

70444348v1 840423

---

(explaining that “the County Board need only indicate which of the criteria, in its view, have or

have not been met, and this will be sufficient if the record supports these conclusion so that an

adequate review of the county Board’s decision may be made”). Because the County Board

made final administrative findings that the application

for expansion did not fulfill the statutory

criteria, it would be unlawful for Waste Management to be

allowed to conduct discovery and

admit evidence

concerning the deliberative process or mental impressions of the Kankakee

County Board.

Despite the fact that Illinois case law specifically provides that “nothing in Section 39.2

would require

. . .

a thorough going exposition of the County Board’s mental processes,”

Petitioner would have this Board require that county boards, in fact, provide specific reasons for

finding whether each criteria was or was not met.

E & E Hauling,

116 Ill.App.3d at 616, 451

N.E.2d at 578. Such a requirement, however, is directly contrary to precedent from Illinois

courts and

this Board, expressly holding that a county board must only indicate which

statutory

criteria have or have not been met, as the Kankakee County Board did in this

case.

See E & E

Hauling,

116 Ill.App.3d at 616, 451 N.E.2d at

578-79;

Waste Management of Illinois, Inc. v.

McHenry County Board,

PCB 86-109 (Dec.

5,

1986);

Waste Management of Illinois, Inc. v.

McHenry County Board,

PCB 88-39 (Aug.

4, 1988). Because the decision of the Kankakee

County Board is in strict compliance with Section 39.2, it is clearly a formal administrative

finding, as contemplated by this Board in

City of Rockford v. Winnebago County,

PCB 87-92

(Nov. 19, 1987).

It is absolutely clear that the decision of the Kankakee County Board on Waste

Management’s second siting application is a “contemporaneous formal finding” based on this

Board’s decision in

Land and Lakes Co. v. Village ofRomeoville,

PCB

92-25

(June 4, 1992). Tn

6

70444348v1 840423

---

Land and Lakes,

the court noted “the wealth of case law establishing that before an inquiry can

be made into the decisionmaker’s mental process when a contemporaneous formal finding exists,

there must be a strong showing ofbad faith or improper behavior.” 1992 WL 142725, slip op. at

*3~Based on that case law, this Board held that “an applicant cannot elicit testimony from the

decisionmaker which probes the mental processes behind a decision where, as here, a formal

written decision exists.”

Id.

at

*5•

The written decision in

Land and Lakes

merely provided that

“the facility is not necessary to accommodate the waste needs of the intended service area and

that no conditions are attached to the denial of criterion 1.”

Id.

at

*

1. This Board found that

such a decision was a final and formal administrative decision, refusing to allow inquiry into the

basis for that decision.

Id.

at *3

Because this Board concluded that the decision in

Land and

Lakes

was a “formal written decision”, so must this Board concluded that the decision of the

Kankakee

County Board is a “formal

written

decision”

because, like the decision in

Land and

Lakes,

the Kankakee County Board’s written decision identifies which criteriahave and have not

been met.

The cases cited by Petitioner in support of its assertion that there should be inquiry into

the mental processes of the County Board members because there were no final administrative

findings by the Kankakee County Board not only do not support Petitioner’s assertion but are

directly contrary

to it. For example, the court in

Abbott Laboratories v. Harris,

481 F.Supp. 74

(N.D.Ill. 1979), allowed an exception to the mental process doctrine only because the

administrative agency had not entered an order upon which the plaintiff could seek judicial

review after six years ofdeliberation.

Id.

at 78. Because there was not a final decision after such

a period oftime, the plaintiff was allowed to pursue discovery ofthe decisionmakers.

Id.

In this

case, on the other hand, the Kankakee County

Board entered a final decision denying Petitioner’s

7

70444348v1 840423

---

application for expansion.

See

Exhibit A. Because a final decision was made, Petitioner cannot

now delve into the minds of the decisionmakers, no matter how much it dislikes that decision.

Furthermore,

Abbott

as well as the additional cases cited by Petitioner do not support

Petitioner’s attempt to inquire into the thought processes of the County Board because, as

explained by the courts in each ofthose cases, the proper remedy for an administrative agency’s

failure to provide an adequate statement ofits decision is a remand to the administrative agency.

See Abbott,

481 F.Supp. at 78;

Community for Creative Non-Violence v. Lujan,

908 F.2d 992,

998 (D.C. Cir.

1990);

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 420

(1971). Tn this case, there has been no finding that the Kankakee

County Board’s decision was

somehow insufficient, as the decision clearly complies with the Act. Nevertheless, as set forth in

the cases cited by Petitioner itself, even if the County Board’s decision were somehow unclear or

incomplete, the proper remedy would be a remand to the County Board to clarify its decision, not

inquiry into the thought processes of the County Board members.

See Land and Lakes v. Village

of Romeoville,

PCB

92-25

(June

4, 1992) (requiring Village Board to clarify its decision on

criterion one where Village Board’s decision was unclear as to whether that criterion was met).

The formal written decision of the Kankakee County Board denying siting approval to

Waste Management because ofWaste Management’s failure to fulfill criterion one, three and six

is a final administrative finding. As such, this Board should reject Petitioner’s attempt to invade

the thought processes of the County Board members in reaching their conclusion.

B.

THERE IS NO

INFERENCE

OF

IMPROPRIETY

BASED ON THE COUNTY

BOARD’S DENIAL OF WASTE MANAGEMENT’S SECOND REQUEST

FOR SITING APPROVAL.

Petitioner suggests that there can be an inference of bad faith or improper behavior ofthe

Kankakee County Board for two

main reasons. First and foremost, Petitioner suggests that there

8

70444348v1 840423

---

is an appearance of impropriety because the County Board voted to approve Waste

Management’s previous application approximately one year before the County Board voted to

deny Waste Management’s subsequent application. Second, Petitioner suggests that the County

Board’s decision was impliedly improper because the County Board rejected the “lengthy and

considered staff recommendations” in choosing to deny the application. However, as set forth

below, the County Board’s change in opinion and its disagreement with the Regional Planning

Commission’s recommendations are insufficient to infer bad faith or improper behavior on the

part ofthe County Board. Therefore, Petitioner’s Motion to Compel should be denied.

As explained several times by this Board, there must be a strong showing ofbad faith or

improper behavior to justify inquiry into a decisionmaker’s mental processes.

See West

Suburban Recycling and Energy Center, L.P. v. illinois Environmental Protection Agency,

PCB

95-119, 125 (Oct. 17, 1996);

Village ofLaGrange v. McCook Cogeneration Station,

PCB 96-41

(Dec.

7,

1995); City of Rockford v. Winnebago County Board,

PCB 87-92 (Nov. 19, 1987).

“Without

adequate facts warranting an inference that fundamental unfairness may have

occurred in the hearing process, the Board will not necessarily invade the proper realm of the

decisionmakers.

Village of LaGrange,1995

WL 747729, slip op. at *11 (Dec. 7,

1995).

As

explained by Board Member Forcade in his concurring opinion in

A.R.F. Landfill,

“the county

board proceeding is entitled to a strong presumption of propriety that must be overcome before

there can be a ‘fishing expedition’ into the personal lives and mental processes of the county

board members.” 1987 WL 56293, slip op. at *27.

The fact that some county board members voted in favor ofWaste Management’s request

for expansion in 2003 but voted against an entirely new application for expansion over a year

later in 2004 does not imply the strong showing of bad faith or improper behavior required to

9

70444348v1 840423

---

overcome the mental process doctrine. Rather, the evidence clearly establishes that not only

were the applications filed by Waste Management on August 16, 2002 and September 26, 2003

different, but so were the siting hearings regarding those applications, the evidence admitted, the

public comments and the testimony provided at the hearings. As a result, there can be no

implication of bad faith or improper behavior by the Kankakee County Board simply because it

voted to deny Waste Management’s application in 2004.

Additionally, there can be no

implication of bad faith simply because the Kankakee County Board chose not to follow the

recommendations of the Regional Planning Commission and grant siting approval to Waste

Management because as the local siting authority, it was the duty of the County Board, not the

Regional Planning Commission, to decide whether the application would be approved or not.

1.

Not the Same as the First Application and Siting Hearings.

Although Petitioner makes much ofthe fact that several County Board Members testified

that Waste Management’s application was substantially the same as its previous application, the

evidence clearly shows that there were major differences between the two

applications. In fact,

Waste Management itself acknowledged that its 2003 Application contained new information

regarding criteria one, three and eight. See correspondence from Don Moran, dated September

26, 2003, attached hereto as Exhibit B. It was two of these three very criteria, one and three, that

the County Board found were not satisfied with respect to Waste Management’s second

application. Because Waste Management’s second application contained new information

regarding those criteria, it was reasonable for the County Board to conclude that those criteria

were not met with respect to the second application even though it found those criteria were

satisfied by Waste Management’s first application.

10

70444348v1 840423

---

Even assuming

arguendo

that the two

applications were completely identical, that does

not establish wrongdoing or improper conduct by the County Board because the County Board’s

decision to grant or deny siting approval is not based soely on a siting application, but is based

on additional information presented during the siting hearing as well as public comments

presented during and after the hearing. In this case, there were major differences between the

public hearings held on the two siting applications, which is significant because while the

application begins the siting process, the public hearing is the most critical stage of the siting

process.

See Land and Lakes Co. v. Illinois Pollution Control Board,

245 I1l.App.3d 631, 642,

616 N.E.2d 349,

356

(3d Dist. 1993);

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

207

Il1.App.3d 477, 480,

566

N.E.2d 26, 28 (4th Dist. 1991);

Kane County Defenders, Inc. v.

Pollution Control Board,

139 Ill.App.3d 588,

593,

487 N.E.2d 743, 746 (2d Dist. 1985).

In this case, there is no question that the evidence and testimony presented at the public

hearing was not the same with respect to both applications. In fact, at the 2003 hearing, new and

additional testimony was provided by an objector’s witness, Brent Coulter, who testified

regarding criterion six. There was also substantially more evidence concerning criterion three,

compatibility with the surrounding area, during the siting hearing on the second application. The

fact that new and additional evidence was provided on these criteria justifies the Kankakee

County Board’s conclusion that criterion three and six were not met by Waste Management in

2004 even though the County Board concluded that those criteria were met over one year earlier

based on the evidence presented during the previous siting hearing.

Furthermore, there were drastically different circumstances at the time the County Board

voted on the first and~second applications, specifically regarding the need for the facility,

justifying the County Board’s vote on January 31, 2003 to approve the application and its vote

11

70444348v1 840423

---

on March 17, 2004 to deny the application. When the County Board voted on January 31, 2003

to approve the expansion, there were no other landfills approved in Kankakee County because

although the City of Kankakee had previously approved a landfill to be located in the City of

Kankakee, this Board reversed that approval on January

9,

2003.

See County ofKankakee v. City

of Kankakee,

PCB 03-31, 33, 35

(Jan.

9,

2003). However, when the County Board voted to

disapprove Waste Management’s expansion on March 17, 2004, a landfill had been approved by

the City of Kankakee, only two miles from the proposed expansion, and that approval was

upheld by this Board on March 18, 2004.

See Sandberg v. City ofKankakee,

PCB 04-33, 34, 35

(March 18, 2004). Based on the City ofKankakee’s approval of a landfill in close vicinity to the

proposed expansion, it was more than reasonable for the Kankakee County Board to find that

there was no longer a need for the proposed expansion and

that criterion one, therefore, had not

been satisfied.

Changed Votes Do Not Establish Impropriety.

Even assuming

arguendo

that the evidence presented in Waste Management’s 2003

application and siting hearings was substantially the same as the evidence presented in the 2002

application and accompanying siting hearings, this still does not establish any impropriety by the

County Board.

See Moore v. Wayne County Board,

PCB 86-197 (June 2, 1988);

Land and Lakes

v. Village of Romeoville,

PCB

92-25

(June

4, 1992);

DiMaggio v. Solid Waste Agency of

Northern Cook County,

PCB

89-138 (Oct. 27, 1989). Tn

Moore,

the

Wayne County Board took a

vote on a siting application that resulted in a 7-7 tie. 1988 WL 160275, slip op. at *2. Three

weeks later, the County Board voted again and this time voted to approve the facility by a vote of

10-4.

Id.

In refusing to find that the County Board’s decision was fundamentally unfair simply

12

70444348v1 840423

---

because several board members had changed their votes, this Board explained that the mere

changing of one’s vote is not evidence of an improper decision.

Id.

at *4~

Just as there was no impropriety simply because several members of the county board

changed their votes in

Moore,

the same is

true in this case. In fact, in this case there is even less

reason to believe that the County Board’s decision denying approval to Waste Management was

improper because there was a new and different application filed and new siting hearing held

before the Kankakee County Board, on which the County Board based its second decision. In

Moore,

on the other

hand, the county board’s second vote was not based on any new or

additional evidence at all, but was based on

the same application and siting hearing on which the

county board had

been unable to reach a decision three weeks earlier. Based on the precedent set

forth in

Moore,

this Board should not find that there is an implication of improper conduct or

behavior simply because some county board members voted in favor of

Waste Management’s

first siting application and against its second siting application.

This Board in

Land and Lakes

again determined that it was improper to invade the mind

ofdecisionmaker even when evidence establishes that the decisionmaker changed his orher vote.

See

1992 WL 142725, slip op. at *7• In

Land and Lakes,

the petitioner alleged fundamental

unfairness resulted when a trustee changed her vote from one proceeding to the next.

Id.

However, this Board ruled that “pursuant to the Board’s ruling above regarding impermissible

invasion into the mind of the decisionmaker and lack ofrelevancy, the Board rejects Land and

Lakes’

contention

that Pakula’s vote establishes that the second proceeding was fundamentally

unfair.”

Id.

This Board further ruled that “the principle that one cannot invade the

decisionmaker’s mental processes as well, as the Board’s determination that any inquiry into the

Village’s first vote is irrelevant, prevents any inquiry into allegations of a ‘changed vote.”

Id.

13

70444348v1 840423

---

Therefore, based on this Board’s decision in

Land and Lakes,

it is clearly improper to delve into

the mental processes of Board members, as Petitioner suggests here, simply on the basis of a

“changed vote.”

This Board again refused to find improper conduct and delve into the mental processes of

board members who changed their votes in

DiMaggio.

In

DiMaggio,

the petitioners argued

that

there was a strong inference of

ex parte

contacts where the city council initially voted to deny

site location approval and then, two weeks later and without further meetings, unanimously

approved the siting application. 1989 WL 137358 at *4~This Board refused to find fundamental

unfairness and refused to “unnecessarily invade the proper realm of the city councilmen and

search beyond the record” simply because city council members changed their votes

Id.

at

*5•

This Board explained “that in reasonable deference to the city council, their depositions should

not be required, absent some greater showing of a factual basis for alleged

exparte

contacts.”

Id.

at *6. Just as this Board found in

DiMaggio,

the fact that a local siting authority changes its vote

on a siting application

is insufficient to justify probing the mental processes of county board

members.

Furthermore, the fact that some County Board members changed their opinions regarding

the proposed expansion does not establish impropriety, but is actually a sign of good

decisionmaking. In fact, in a case cited

by Petitioner itself, the court explained:

One set ofpossible justifications for the mental processes privilege flows from the

nature of the testimony which might be sought in the absence of the privilege.

Presumably, a decisionmaker who approaches a problem thoughtfully will find

that his position changes as his thinking matures. Perhaps the change will be

stark; perhaps it will be merely a matter of emphasis. In any event, a healthy

decisionmakingprocess should encourage such change where it is appropriate.

United States v. Hooker Chemicals & Plastics Corp.,

123 F.R.D. 3, 38 (W.D.N.Y. 1988). Tn

direct contrast to Petitioner’s assertion that the County Board’s decision to deny the expansion in

14

70444348v1 840423

---

2004 raises the inference ofimproper conduct, the County Board’s new decision may actually be

the sign of a good decisionmaker who has clearly examined and considered all ofthe options.

Based on the foregoing, it is clear that the County Board’s decision to deny siting

approval in 2004 is insufficient to establish a strong showing of impropriety required to

overcome the mental processes doctrine. Moreover, even if Petitioner had met its burden of

establishing impropriety, Petitioner’s request to delve into the mental processes of only certain

Kankakee County Board members, specifically those who voted against the expansion, is clearly

improper. Out ofthe 28 Kankakee County Board members, Petitioner has requested permission

to question only 13 members regarding their decision to deny Petitioner’s second application for

expansion. As such, Petitioner is requiring only certain County Board members to justify their

decisions on the application for expansion, while those County Board members who voted in

favor ofthe application for expansion are not required to divulge the reasons for their decisions.

This is a completely one-sided and

unfair process

to single out only certain County Board

members whose votes Petitioner does not like. However, the fact that Petitioner is disappointed

with the votes cast by certain County Board members does not justify delving into the thought

processes ofthose County Board members, particularly when other Board members, whose votes

Petitioner apparently likes, are not subject to the same invasive interrogation. Because it is

improper to invade the deliberative process and mental impressions ofa decisionmaker and even

more improper to do so only for certain decisionmakers who vote a certain way, Petitioner’s

Motion to Compel should be denied.

3.

Commission’s Recommendations Does Not Establish Impropriety.

In addition to the alleged “changed vote,” Petitioner alleges that an inference of improper

conduct arises from the County Board’s refusal to accept the recommendations of the Regional

15

70444348v1 840423

---

Planning Commission. In support of this position, Petitioner cites one case from the federal

district court

of

Wisconsin,

Sokaogon Chippewa Community v. Babbitt, 961

F.Supp.

1276

(W.D.Wis. 1997). However, that case is not controlling on this Board and is not in accordance

with the United States Supreme Court’s holding in

Morgan.

In fact, the court in

Sokaogon

did

not even cite to nor rely on the Supreme Court’s holding in

Morgan,

as this Board has repeatedly

done in determining whether to inquire into the mental processes of decisionmakers.

See

DiMaggio v. Solid Waste Agency of Northern Cook County,

PCB 89-13 8 (Oct. 27, 1989);

McLean County Disposal Co. v. County of McLean,

PCB 87-133

(May 25, 1989);

A.R.F.

Landfill, Inc. v. Lake County,

PCB 87-51 (Oct. 1,

1987);

Ash v. Iroquois County Board,

87-29

(July 16, 1987).

Furthermore, the facts presented in

Sokaogon

establish that that the court did not inquire

into the agency’s decision simply because the agency disagreed with a staff report; rather, in

Sokaogon,

there was direct evidence of improper political pressure, including contacts between

the agency decisionmakers and congressional or presidential officials.

Id.

at

128 1-84. In this

case, County Board members were specifically questioned about their contact with the Mayor

and other governmental officials, and despite such questioning, there was no evidence of

political pressure over the decisionmakers like there was in

Sokaogon.

Consequently, Petitioner

in this case has not established the “strong showing” necessary to overcome the mental processes

doctrine that the court foundwas present in

Sokoagon.

Moreover, the United States Supreme Court’s decision in

Morgan

specifically contradicts

Petitioner’s assertion that the County Board’s decision not to following the Regional Planning

Commission’s recommendations justifies inquiry ofthe County Board members. In

Morgan,

the

evidence showed that, like the County Board, the• Secretary chose not to follow the

16

70444348v1 840423

---

recommendations ofone ofhis staff members. 313 U.S. at 422. Nevertheless, the United States

Supreme Court found that no inquiry into the bases of the Secretary’s decision was warranted.

Id.

Specifically, the Court explained:

Much was made of the Secretary’s disregard ofa memorandum from one of his

officials, who on reading the proposed order, urged considerations favorable to

the market agencies. But the short of the business is that the Secretary should

never have been subjected to this examination.

Id.

As the United States Supreme Court specifically found in

Morgan,

the fact that a

decisionmaker chooses to disregard the recommendation of another does not establish strong

evidence of improper conduct sufficient to allow inquiry into the minds of the

decisionmakers.

Furthermore, Petitioner’s contention that the Kankakee County Regional Planning

Commission’s recommendation

should have been controlling on the County Board is directly

contrary to the Illinois Environmental Protection Act. The Act specifically provides: “The

county board of the county or the governing body of the municipality

. . .

shall approve or

disapprove the request for local siting approval for each pollution control facility which is

subject to such review.” 415 ILCS 5/39.2(a). Therefore, pursuant to the Act, the Kankakee

County Board, not the Kankakee County Regional Planning Commission, was obligated to

decide whether the proposed facility met the statutory criteria. The fact that the Kankakee

County Board sought and received the Regional Planning Commission’s recommendation did

not bind the County Board to the Commission’s recommendation, as Petitioner would contend.

It was the province of the County Board and the County Board alone to determine whether the

proposed expansion should be approved or disapproved pursuant to the Act; therefore, the

Regional Planning Commission’s recommendations are irrelevant.

Finally, a review of the County Board’s decision compared to the Regional Planning

Commission’s recommendations establishes that it was entirely proper for the County Board to

17

70444348v1 840423

---

deny Waste Management’s application. In ruling on Waste Management’s application, the

Kankakee County Board found that three of the nine criteria set forth in Section 39.2 were not

met, specifically criteria one, three and six.

See

Exhibit A. While the Regional Planning

Commission, in its recommendations found that all of these criteria were met, the Commission

felt it necessary to impose special conditions on each of those criteria.

In fact, the Commission

found that one special condition should be

imposed to satisfy criterion one,

six special conditions

should be imposed to satisfy criterion three, and fourteen special conditions should be imposed

to satisfy criterion six.

See

Kankakee County Regional Planning Commission’s

“Recommendations Relating to the Application of Waste Management of Ililinois, Inc. For Local

Siting Approval of an Expansion ofthe Existing Kankakee Landfill,” attached hereto as Exhibit

C. Because the Regional Planning Commission found that those criteria were met only subject

to numerous conditions, it was absolutely reasonable

and not inherently improper for the County

Board to find that

even with those special conditions imposed, criteria one, three and six were

not satisfied.

Based on the foregoing, it is clear that a decisionmaker’s choice not to follow the

recommendations of others is

per se

improper. Therefore, Petitioner has failed to establish a

strong showing of improper conduct necessary to

overcome the mental process doctrine.

C. THE MENTAL PROCESS DOCTRINE EXTENDS TO POST-DECISION

COMMUNICATIONS AND CANNOT BE

WAIVED.

Petitioner cites to one case in support of its

position that the mental processes doctrine

ends after the decision is made.

See United States v. Hooker Chemicals & Plastics Corp.,

123

F.R.D. 3 (W.D.N.Y. 1988). However, that case is clearly distinguishable and should not be

relied upon to invade the mind of a decisionmaker because the court in that case was determining

the scope ofthe mental process doctrine in a context where judicial review of an administrative

18

70444348v1 840423

---

decision was not at issue.

Id.

at 27. It was only in that context that the court found it appropriate

to depart from the Supreme Court’s ruling in

Morgan

and allow inquiry into a decisionmaker’s

post-decisional views.

Id.

However, in this case, unlike

Hooker,

there is review of the County

Board’s decision to grant or deny siting approval, first through the Illinois Pollution Control

Board pursuant to Section 40.1 of the Act, and, thereafter, through the appellate court pursuant to

Section 41 ofthe Act. See 415 ILCS 40.1; 415 ILCS 41. Because there is both administrative

and judicial review of the County Board’s decision, this Board should follow the precedent set

forth

in

Morgan

and disregard the decision ofthe Western District of New York in

Hooker,

as

that case is inapplicable.

As explained by the Court in

Hooker,

the mental process doctrine first identified in

Morgan

is justified on two grounds:

First, in those cases where an administrative decisionmaker does act like a judge

or jury (that is, where he or she acts, in a presumably neutral way, to decide a

controversy or to promulgate a rule), it is not ‘in role’ for that official to become a

witness in the reviewing court. To become a witness is to move from the model

of neutral decisionmaker. Second, and

more important, it would be highly

inefficient for reviewing courts

to retrace the mental processes of administrative

decisionmakers

—

so inefficient that it might undermine a purpose for which the

agency was established. In administrative law, agency decisions enjoy a

presumption of regularity precisely because we do not want reviewing courts

acting as for a de novo. Conceivably, it was these two considerations which

Justice Frankfurter had in mind when he asserted that the

Morgan

privilege (or

doctrine) would preserve the ‘integrity of the administrative process.’

Hooker,

123 F.R.D. at 24. In order to fulfill the purposes of the mental process

doctrine, as

explained above, it is necessary for the doctrine to extend to post-decisional discussions of a

decisionmaker’s mental processes. The Supreme Court in

Morgan

clearly agreed, finding that it

was inappropriate for the Secretary to be questioned after he made a decision regarding the bases

and reasons for that decision. This Board should likewise find that in order to ‘preserve the

19

70444348v1 840423

---

integrity ofthe administrative process,’ the doctrine must apply to post-decisional discussions of

a decisionmaker.

Petitioner’s contention that the privilege should

be lost if post-decision discussions occur

should also be rejected by this Board, as this Board has previously found that post-decision

discussions do not waive the privilege.

See Land and Lakes Co. v. Village ofRomeoville,

PCB

92-25 (June 4, 1992). In fact, this Board in

Land and Lakes

specifically stated: “The Board does

not believe that the decisionmaker can ‘waive’ the privilege that the thought process ofone in an

adjudicate capacity is not to be invaded.” 1992 WL 142725, slip op. at

*5~

Therefore, even if a

County Board member has previously explained his or her mental processes to someone else,

that does not authorize unfettered inquiry into the thought processes of that County Board

member.

Not only should this Board refuse to compel the depositions of Kankakee County Board

members, but this Court should also

refuse

to compel the deposition

of Michael Van Mill, an

employee of the County

because, as set forth above, the County Board members who discussed

their decisions with Mr. Van Mill did not “waive” their privilege by doing so. Furthermore, as

this Board has specifically found, such statements are protected and not discoverable because

they were made by County Board members to a member of the County staff.

See Town of St.

Charles v. Kane County Board,

PCB 83-228, 229, 230, 1984 WL

37631, slip op. at *7 (March

21, 1984) (finding that inquiry about conversations between County Board member and

Director

of the Environmental Department, who is considered staff of

the County Board, “is clearly

impressible as infringing on the mental processes of the County”). As

such, the additional

deposition of Michael Van Mill to discuss the mental impressions of County Board members, in

20

70444348v1 840423

---

addition to those of all Kankakee County Board members, should not be compelled by this

Board.

WHEREFORE, Respondent, COUNTY BOARD OF

KANKAKEE COUNTY,

ILLINOIS, respectfully requests that

this Board deny Petitioner’s Motion to Compel.

Respectfully Submitted,

COUNTY BOARD OF

KANKAKEE

COUNTY,

ILLINOIS, Respondent

By: Hinshaw & Culbertson LLP

~

(H/L)

Richard S.

Porter

One of Attorneys

HINSHAW & CULBERTSON LLP

222 N. LaSalle Street

Suite 300

Chicago, IL 60601-1081

312-704-3000

This document utilized 100

recycled paper products

70444348v1 840423

---

Ph

---

KANKAKEE COUNTY BOARD

ft r!’~)

3

U

•

Decision Regarding the Application of Waste Management of Illinois, Inc.

• ForLocal Sitinq Approval of an Expansion of the Existiflg Kankakee Landfill

Whereas, on September 26, 2003,

Waste

Management of Illinois, Inc. ~WlV~(l)

~““

-

filed an application for

local

siting

approval for an expansion of

its existing Kankakee

Landfill; and

Whereas public hearings have been held on the application, before Hearing

Officer John McCarthy, and public comments filed or postmarked by February 20, 2004

have been received; and

Whereas the Kankakee County Regional Planning Commission (KCRPC) has,

pursuant to the Kankakee County Siting Ordinance for Pollution Control Facilities (Siting

Ordinance), considered the application and the siting record, and has made findings

and recommendations to the Kankakee County Board (Board) (see attached Exhibit A);

and

Whereas, the KCRPC voted, pursuant to state law and the Siting Ordinance to

also consider two comments filed after February 20, 2004, but no comments filed after

March 2, 2004; and

• Whereas the Board has considered the record of the ~ltingproceeding, including,

but not limited to, the testimony, exhibits, and comment given at the public hearings, the

application, and the public comments; and

Whereas, the Board has also received and considered the recommendations of

the KCRPC; and

Whereas, pursuant to state statute (415 ILCS 5/39.2) and the Siting Ordinance,

the Board is to determine compliance ornoncompliance with the statutory criteria of

Section 39.2 ofthe Environmental Protection Act;

IT IS HEREBY DETERMINED:

Jurisdiction

The Board finds that all jurisdictional requirements have been satisfied. Thus,

the Board has jurisdiction to consider WMII’s application.

~u~d.~~.mentalFairness

~

•

The Board finds that the proceedings have been conducted In

a fundamentally

fair manner.

C4115

---

Statutory

Ciiteria

Section .39.2(a) of the Illinois Environmental Protection Act requires that an

applicant for local siting approval demonstrate compliance with nine critena

Whether the facility is necessary to accommodate the waste needs of the area

it

is intended to serve. The KCRPC recommended that criterion one be found to

be satisfied, subject to a special condition. A motion that the Board adopt the

KCRPC’s recommendation failed on a vote of 12 in favor and 16 opposed.

Having no additional motions, the Board finds that criterion one is not satisfied.

2.

Whether the facility Is so designed, located, and proposed to be operated that the

public healthy safety, and welfare ~.....!.!,.,,b,..eprotected. The KCRPC found criterion

two is satisfied, subject to special conditions. A motion that the Board adopt the

•

KCRPC recommendation passed on a vote of 22 in favor and 6 opposed. The

Board finds that the proposed facility is so designed, located, and proposed to be

•

operated that the public health, safety, and welfare will be protected. However,

that finding is based upon the imposition of the following special conditions~

a.

There shall be no vertical expansion of the existing facility.

b.

The lateral expansion must be considered a separate unit from the

existing landfill, as defined in 35 llLAdm.Codo 810.103, and separate

groundwater monitoring networks shall be maintained for the expansion

and for the existing landfill.

c.

A field verification must be performed to locate all private wells and

community wells, currently used as a source of potable water, located

within I ,.000 feet of all boundaries of the property.

ci.

Downgradient monitoring well spacing in the uppermost aquifer

(regardless of gradient) must be provided, where adjacent potable water

supply wells are located in the Doiomite~

a.

Any and all sand deposits that are one foot thick, twenty feet wide, and/or

yield water for

a

period of more than 24 hours must be monitored as

•

potential contaminant migration pathways.

f.

Leachate shall not be recirculated for a period of at least five years after

the receipt of the operating permit. Following this period, the landfill

•

• operator may petition. the County Board. to recirculate leachate. The

•

County staff shall review the operational record of the site. and consult with

an independent technical expert to determine if the . operator has

demonstrated that leachate recirculation is a safe and appropriate method

•

to handle the leachate at this facility.

Reasonable expenses~of the

2

C4116

.

---

technical expert shall be reimbursed by the landfill operator. Leachate

may not be recirculated without the express approval of the County Board.

g.

Soil bioremediation and solidification of waste is prohibited at the

facility, unless expressly approved in writing by the County Board.

h.

Composting ofwaste is prohibited at the facility, unless expressly

approved in writing by the County Board.

An

annual topographic survey of existing waste grades and elevations, of

final permitted waste grades and elevations, and final permitted contours

shall be conducted by the operator. Results of each annual survey must

be submitted to the County Planning Director within thirty days thereafter

to ensure ongoing compliance with permit conditions at the facility.

j. .

The construction quality assurance (CQA) officer shall be physically

present on the landfill site a minimum of once per week during each stage

of critical liner construction including: I) preparation of sub-grade; 2) low

permeability soil liner construction; 3) geomembrane installation; 4)

geotextile placement; 5) granular drainage layer construction; 6) leachate

system and associated piping installatIon; 7) final cover construction; and

8) gas system installation~ Documents signed and dated by the CQA

officer must be maintained evidencing his or her physical presence, and

must be made available to the County upon request. Technicians utilized

-shall have at least five years experience and shall be approved by the

County Planning Director.

k.

The aôtive face must not exceed an area approved by the County

Planning Director, If the operator believes the approved area is not

adequate for operations, the operator may petition the County Board for

allowance ofa larger active face area.

An

independent professional engineer (approved by the County Planning

Director) shall be on-site to observe placement of the sand drainage layer

and the initial lift of waste placed in any new cell. The engineer shall

report directly to the County. Planning Director, and shall have the

authority to stop placement of sand or waste during this initial operation if

he or she observes any condition that would or could damage the bottom

liner.

m.

Trucks, trailers, or any other vehicle holding waste shall not be parked or

stored overnight at the facility, or staged on Route 45/52, or on the right-

of-way outside of the landfill facility.

.

n.

Fencing around the entire facility is required to prevent unauthorized

access, An eight-foot high wooden or other view-obstructing, County

3

C41 17

---

acceptable fence shall be constructed on the east side of the property to

help block the view of the site. As cells are developed, the fence shall be

extended to encompass, at a minimum, the waste footprint, with the fence

eventually encompassing the entire facility.

o.

Video recordings of all traffic entering the site shall be retained for a period

of at least six months. The County shall have the right to review the

recordings within two days of requesting to review a tape.

p.

The minimum number of random load inspections shall be three per week

as specified in state regulations. For arty amount oftonnage received

above an average of

500

tons per day, the number of Inspections shall be

•

increased on the following basis:

For each 500 ton per day average increase, the number of

random weekly inspections shall be increased by two. For

example, if up to 1000 tons per day average is accepted the

previous week, the week shall have five inspections (three

inspections for the first 500 tons, and two for the next 500),

If the weekly rate is 2000 tons per day, the inspection rate is

three plus two plus two plus two, to equal nine random

inspections.

After five years of operation, the landfill operator may

request a review and reconsideration of this random

inspection requirement by the County Board. An authorized

County official shall have the right to inspect and to be

present at any random load inspection.

q.

The landfill operator shall pick up litter on a daily basis along Route 45/52

between the landfill and the i~57interchange, as well as at least one~

quarter mile south of the landfill along Route 45/52. If allowed by adjacent

property owners, the landfill operator shall remove any litter attributable to

the landfill on those adjacent properties on a weekly basis. Perimeter

picking on site shall be performed daily to remove litter from trees, fencing,

and berms.

r.

The landfill operator shall install a radiation detector at the scale house.

The landfill operator shall record any alarm, and notify the County of each

occurrence, the level of radiation detected, and the manner of response.

s.

The maxlmum height of the landfill, and the lateral extent of the landfill,

shall not exceed the height and lateral extent shown on the plans provided

in the application.

t.

A Groundwater Impact Assessment (GIA) must be submitted to the

4

C4118

---

County and its consultants prior to the submittal of a development permit

application to IEPA. The landfill owner/operator shall reimburse the

County for reasonable and necessary costs incurred in review of the GIA.

u.

Copies of the development permit application and all subsequent permit

applications and required submittals to IEPA shall be submitted to the

County Planning Director at the same time the applications are submitted

to IEPA, at no cost to the County. Alt permits issued for the facility shall

be copied and submitted to the County Planning Director within 30 days

after any such permit is received by the landfill owner/operator...

v.

The landfill operator shall build the berms On the west side of the property

at least 1,000 feet in advance of any cell construction, measured from the

southernmost coordinate of the . ôell.

For example, if the cell’s

southernmost coordinate is S 3500, then the berm shall extend to S 4500

or further south. The only exception to this condition is during the

construction of Phase I..

w.

The gas line that is to be relocated shall be fully sealed from any potential

migration from the landfill. Only fine-grained material shall be used as

backfill in the trench,

The construction shall be certified by an

independent professional engineer, such engineer to be approved by the

County Planning Director.

.

L

x.

Proof of each equipment operator’s training shall be provided to the

County Planning Director prior to that operator’s.work at the site.

y.

The landfill operator shall notify the County Planning Director seven days

prior to collecting any required sampling or resampling. The landfill

operator shall provide the County with split samples for chemical analysis.

The County shall select the laboratory to which its sample(s) are sent for

chemical analysis. The landfill operator shall reimburse the County for the

L

reasonable and necessary costs of such testihg and analyses, provided,

however, that such reimbursement shall not exceed $10,000 per calendar

year, adjust annually for the Chicago/Gary Metropolitan Area Consumer

Price Index.

z.

The landfill operator shall not request the use of sewage sludge as a

component of final cover in its IEPA permit application without first

obtaining County Board approval of such use.

sa.

An automatic monitoring system shall be installed to monitor the. level of

leachate from each leachate sump area. The system shall.record the

head in the sump such that at no time will the leachate level be allowed to

rise above the level that corresponds to one foot of head on the liner. The

landfill operator shall maintain the records from the automatic monitoring

5

C4119

---

system, and make those records accessible to the County.

bb. • The leachate containment area surrounding the leachate holding tanks

shall be sized appropriately to handle a potential spill volume equal to all

tanks present, unless the operator can demonstrate to IEPA that such a

• requirement promotes operational safety hazards. •

•

-

cc,

The landfill operator shall provide, as part of its development permit

application to EPA, a demonstration (water balance) that the watershed

•north of 7500 S Road will not be negatively impacted by the facility. A

copy of this demonstration shall be submitted to the County Planning

Director.

dd.

The County Planning Director shall be notified at least fourteen days in

advance of construction of the stormwater control planned for each phase

of landfill development. The operator shall provide the County Planning

Director with a copy of all correspondence to or from IEPA related to

stormwater detention and runoff control operations.

ee.

The landfill operator shall implement the complaint procedure outlined in

the application, Including a hot line phone number, to address complaints.

if.

The landfill operator shall locate any farm drainage tiles on the property,

and cooperate and coordinate with the County and appropriate drainage

districts concerning possible and/or necessary removal or relocation of

those tiles. Any removed tiles shall be sealed from any potential migration

from the landfill. Only fine-grained material shall be used as backfill in the

trench. The constructiori shall be certified by an independent professional

engineer, such engineer approved by the County Planning Director.

gg.

A textured geomembrane shall be used when constructing the interior

sideslope drainage layer, unless otherwise permitted by IEPA.

hh.

A textured geomembrane shall be used on the final cover layer, unless

otherwise permitted by IEPA.

ii.

Final cover over a filled area is to be placed not later than 60 days after

placement of the final lift of solid waste, unless otherwise permitted by

IEPA. At no time shall the area exceed 10 acres, unless otherwise

permitted by IEPA.

jj•.

Leachate storage tanks shall be coated with a corrosive-resistant material

prior to use, unless otherwise permitted by IEPA. •

kk.

The leachate containment area is to be inspected for leaks or spills on a

daily basis with all results recorded in a log. The log shall be made

6

C4120

---

available to the County for review. Any stormwater suspected of being

contaminated in the leachate containment area shall be handled as

leachate, unless a sample is collected and tested for the annual leachate

parameter list, and it is demonstrated that all organic compounds are

below detection limits, and all inorganic compounds are detected at

concentrations below NPDES discharge limits.

All

stormwater detention basins and stormwater drainage ways/ditches

shall be inspected weekly during the operating life of the facility. A written

log shall be kept of the inspections and made available to the County for

review. The inspections shall be conducted on .a quarterly basis for five

years after certified closure of the facility. After.five years of closure, the

frequency of these inspections may be decreased to annually with IEPA

approval. At the time of inspection, all debris shall be removed from the

inlet/outlet structures. If the sediment buildup in a basin or ditch is within

six inches below the invert of the outlet structure, the basis shall be

dredged and all sediments removed.

All stormwater drainage

ways/ditches on property adjacent to the facility shall be inspected on the

same schedule (weekly during the operating life, quarterly during the first

five years of certified closure, then as approved by IEPA), if located on

publicly-owed land,

If located on privately owned land, the same

inspections shall be performed if allowed by the property owner.

mm. An independent professional engineer (approved by the County Planning

Director) must re-certify any final cover disturbed as a result of installation

of the gas management system, unless otherwise permitted byIEPA.

nn.

Due to the number of adjacent private potable water wells and the

unknown impact of the landfill on groundwater flow within the bedrock

aquifer, the maximum spacing between bedrock monitoring wells around

the entire landfill footprint shall be 250 feet,. unless otherwise approved by

IEPA. No later than five years after the start of landfill operation at the

expansion, the operator shall install two additional deep dolomite aquifer

monitoring wells at locations and depths specified by the County, unless

otherwise permitted by IEPA.

.

00.

Leachate generation data will be recorded weekly per phase. The volume

of leachate pumped/shipped per week shall be recorded in a written log

for each phase of the landfill. A monthly written summary comparing the

actual leachate generation data to the theoretical volume expected must

be submitted to the County Planning Director,

pp.

To provide additional hydrogeologic data on the southwest side of the

facility, two additional piezometers must be installed. The first piezometer

shall be installed midway between GII9A and G137A. The second

piezorneter shall be installed midway between G137A and GI4OA. The

7

r~t121

---

two new piezometers shall be developed, then single well aquifer tested.

A minimum of one round of static water levels shall be collected from all

the bedrock monitoring wells and piezometers, and the potentiometric

surface contour map ofthe bedrock aquifer shall be updated, The boring

logs, as-built diagrams, single well aquifer test data, and test reduction for

the two additional piezometers shall be included in the development~

permit application to IEPA. The two additional piezometers shall be

proposed by the operator for the groundwater monitoring network in the

development permit application to IEPA.

qq.

Burning of any type (Including vegetative prescribed burning) is prohibited

at the facility, unless expressly approved by the County Board.

rr.

When collecting groundwater samples, a well must be purged a minimum

of 3 well volumes, and two consecutive field measurements with a

+1-

0.3

S.U. for pH and within 5 for specific conductivity must be conducted,

unless otherwise permitted by IEPA. All field measurements must be

performed in the field at the time of sampling, and not at the laboratory,

unless otherwise permitted by IEPA...

as.

The temperature. of the constructed soil liner that has not yet been

covered by waste shall be monitored continuously and documented in

sub-freezing temperatures. Liner soils exposed to freezing temperatures

must be retested for permeability by lab (tube) or in-situ testing. Any soil.

not meeting the - I x 10 E ~07 cm/sec requirements shall be

reconstructed/recompacted and then retested by permitted methods.

tt.

. Citizen refuse boxes shalt,be emptied daily if refuse is deposited in them.

uu,

Results of any initial test performed to determine the level of noise from~

the gas flare or generator systems shall be submitted to the County

Planning Director. If the gas flare or generator systems are materially

changed after initial noise level testing, those systems shall be promptly

retested.

w.

The citizen-use recycling opportunities at the facility shall include,, at a

minimum, mixed paper, glass (green, brown, and clear),, at least two

plastic types (numbers 1 and 2 plastics), ferrous metals, aluminum, and

cardboard. The operator shall submit, to the County Planning Director,

quarterly reports on the’tonnage/weight of all material received.

ww.

The hours of operation at the facility are limited to one-half hour before

and two hours. after waste acceptance hours. Thus, operations are limited

to 5:30 a.m. to 8:00 p.m., Monday through Saturday.

xx.

An operable valve shall be installed and continually maintained at each

B

C4122

---

sedimentation outlet basin. Proper operation of any and all such valves

shall be verified by no less than quarterly inspection, with the results of all

inspections documented and provided to the County upon request.

yy.

Because the model indicates the thickness of in-situ clay is critical for the

diffusion of contaminants, the operator shall verify that clay soil with at

least three feet of continuous thickness is located between the bottom of

the constructed clay liner and the top of the uppermost aquifer (dolomite

bedrock and basal sand unit). If the clay soil is found not to be three feet

thick, the underlying three feet of material shall be over-excavated and

recompacted so that a minimum of six feet of lowpemieability material is

in place immediately below the HDPE liner, and that th!s material has a

maximum’ hydraulic conductivity of I x I

o~’

cm/sec.

zz.

All conditions must be stated in the development permit application

submitted to IEPA. The operator shall provide specific notation to the

County Planning Director, with the location of each condition in the

development permit application by section, page, and condition numbers.

aaa. The operator shall reimburse the County for reasonable expenses for

services of professionals reviewing and analyzing the groundwater

corrective action and assessment monitoring activities.

bbb. The operator shall install and maintain a double composite liner.

3.

Whether.the faci!ity is Iocated.so as to minimize incompatibilitywith the character’

of the surrounding area and to minimize the,•• effect on the value of th~

surrounding property. The KCRPC recommended that criterion three be found

to be satisfied, subject .to special conditions. A motion that the Board adopt the

KCRPC’s recommendation failed on a vote of 10 in favor and 18 opposed.

Having no additional motions, the Board finds that criterion three is not satisfied.

4.

Whether the facility is located outside the boundary of the .100 year floodplain, or

the site is flood proofed. The KCRPC recommended that criterion four be found

to be satisfied, A motion that the Board adopt the KCRPC’s recommendation

passed on a voice vote. The Board finds that the proposed facility is located

~outsidethe boundary of the 100 year floodplain.

5.

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. The

KCRPC recommended that criterion five be found to be satisfied. A motion that

the Board adopt the KCF~PC’srecommendation passed on a vote of 20 in favor

and 6 opposed, with 2 absent. The Board finds that the plan of operations for the

facility is designed to minimize the danger to the surrounding ‘ area from fire,

spills, or other operational accidents. However,’ that finding is based upon the

9

---

imposition of the following special conditions:

a.

The landfill operator shall install a radiation detector at the scale house.

The landfill operator shall record any alarm, and ‘notify the County of each

occurrence, the level of radiation detected, and the manner of response’.

b. . The facility’s Emergency Action Plan (EAP) shall include contingencies for

management of incidental hazardOus (including radioactive) waste.

inadvertently received at the facility., The EAP shall specify, at a minimum,

qualified contractor criteria, overpacking, and immediate off-site removal

of the incidental hazardous waste.

6.

Whether the traffic patterns to or from the facility are designed to minimize the

impact on existing traffic flows. The KCRPC recommended thatcriterion six be

found to be satisfied.

A motion that the Board adopt the KCRPC’s

recommendation failed on a vote of 12 in favor and 16 opposed. Having no

additional motions, the Board finds that criterion six is not satisfied.

7,

If the facility will be. tre’at!n~, storing or disposing of hazardous waste, an

erergency response plan exists for the facility which includes notification.

containment and evacuation procedures to be used in case of an accidental

release. The KCRPC recommended that criterion seven be found inapplicable.

A motion that the Board adopt the KCRPC recommendation passed on a voice

vote. The Board finds that the facility will not be treating, storing, or disposing of

hazardous waste. Therefore, the Board finds that this criterion is not applicable,

8.

if the facility is tobe located in a county where the county board has, adopted a

solid waste managernent,:..pIan consistent with the planning requirements of.the

Local Solid Waste Disposal Act or the Solid Waste Planning and,. Recycling Act,

the facility is consistent with that p!an. The KCRPC recommended that criterion

eight be found to be satisfied. A motion that the Board adopt ‘the KCRPC

recommendation passed, on a vote of 25 in favor and 3 opposed. The Board

finds that the facility is consistent with the Kankakee County Solid Waste

Management Plan. However, that finding is based upon the imposition of the

following special conditions:

a.

The landfill operator must comply with all obligations and responsibilities

of the Host Agreement between the County and Waste Management of

Illinois, Inc.

b.

The landfill operator must employ independent appraisers acceptable to

the County as part of the Property Value Guarantee Program.

c.

The Property Value Guarantee Program must be amended to provide that

the Program continues for thirty ‘years after the included Property Owners

10

C4124

---

are notified that waste is no longer being disposed of at the facility.

9.

if the facility wll~be located ,,in a regulated recharge - area, any ap~able

requirements specified by the Illinois Pollution Controll Board for such areas

have been met. The KCRPC recommended that criterion nine be found

inapplicable. A motion that the Board adopt the KCRPC recommendation

passed on a vote of 27 in favor and I opposed. The Board finds ‘that the facility

will not be located in a regulated recharge area. Therefore, the Board finds that

this criterion is not applicable.

Conclusion

The Board finds that all conditions, recommended in this resolution are

reasonable and necessary to accomplish the purposes of Section 39.2 of the

Environmental Protection Act. (415 ILCS 5/39.2~)

Because the Board has found that criteria one, three, and six are not satisfied,

local siting approval for the proposed expansion is denied.

This Decision made and entered on March 17, 2004.

•

~~KRUE,cHAIRMAN

ATTEST:

BRUCE CLARK, COUNTY CLERK ‘

\

11

C4125

---

m

cJJ

4-

---

PEDERSEN&HOUPT

September 26, 2003

Via Hand Delivety

Mr. Karl Kruse

Kankakee County Board Chairman

Kankakee County Administration

Building

189

East Court Street

Kankakee, Illinois 60901

Re:

Expansion ofthe Kanicalcee Landfill

Dear Mr. Kruse:

Donald J. Moran

Attorney at Law

3 12,261.2149

Fax

312.261.1149

dmoran@pedersonhoupt.com

£~- ~&c~

Kankakee County Clerk

,d-ao~

9~

~

Pursuant

to Section 2(2) ofthe

Kankakee County

Siting Ordinance for Pollution Confrol

Facilities (“Ordinance”), Waste Management of Illinois, Inc.

(“WMII”)

hereby submits

50

copies

ofthe Site Location Application for Expansion ofthe Kankakee Landfill (“Application”). The

Application consists oftwo three-ring binders identified as Volumes I and

II. WMH

also

submits a check for the filing fee

pursuant

to Section 2(G) ofthe Ordinance in the

sum

of

$250,000.

This Application is essentially the

same

as the siting request filed by WMII on August 16, 2002,

that was approved by the

Kankakee

County Board on

January

31, 2003, With the exception of

updated information concerning Ordinance requests, criteria 1, 3

and

8 reports,

and

new

information relating to pre-filing notice, this Application is the same as to the one filed August

16, 2002. This Application is filed as a result of the Illinois Pollution Control Board decision

announced August 7, 2003, regarding the sufficiency of~re-filingnotice of the prior siting

request.

As the documents filed with tl~jfIllinois Environmental Protection Agency pertaining to the

existing Kankakee

Landfill were submitted

wltl3 the pnor siting request, WMII again submits

such documents, although not .thquired, with this Application.

Suite 3100 1161 North Clark Street

I

Chicago, IL 60601-3242

I

pedersenhoupt.com I 312

---

PEIJERSEIN&fEOUPT

September 26, 2003

Page 2

WMU restates its agreement to comply with Section 2(G)(1) and.the other applicable provisions

ofthe Ordinance. Wivill

looks

forward to the County’s consideration of this proposed expansion

and responding to any questions or concernsthe County or the public might have concerning this

Application.

Donald J.

oran

DJM:vlk

Enclosures

---

m

n

I

4-

---

•

KANKAKEE

COUNTY REGIONAL PLANNING COMMISSION

Recommendations Relating to the Application of Waste Management of Illinois, Inc.

•For Local

Siting

Approval of an Expansion Of the Existing Kankakee Landfill

Whereas, on September 26, 2003, Waste Management of Illinois, Inc. (WMII)

filed an application for local siting approval for ~anexpansion of its existing Kankakee

Landfill; and

Whereas the Kankakee County, Illinois Siting Ordinance for Pollution Control

Facilities provides that the Solid Waste Sub-committee (SWSC) of the Kankakee

County Regional Planning Commission (KCRPC) shall consider all applications for local

siting approval filed pursuant to the Siting Ordinance and 415 ILCS 5/39.2; and

Whereas the Kankakee County Board Chairman and the Chairman of the

KCRPC have referred the consideration of WMII’s application for local siting approval to

the full KCRPC; and

Whereas public hearings have been held on the application, before Hearing

Officer John McCarthy, and public comments filed or postmarked by February 20, 2004

have been received; and

Whereas, the KCRPC has voted, pursuant to state law and the Siting Ordinance

to also consider two comments filed after February 20, 2004, but no comments filed

after March 2, 2004; and

Whereas the KCRPC has considered the record of the siting proceeding,

Including, but not limited to, the testimony, exhibits, and comment given at the public

hearings, the application, and the public comments; and

Whereas the KCRPC has met, in sessions open to the public, to discuss and

consider WMII’s application;

Whereas, pursuant to the Siting Ordinance, the KCRPC is to determine

compliance or noncompliance with the statutory criteria and to transmit its

recommendations to the County Board;

IT IS HEREBY RESOLVED AND RECOMMENDED:

Jurisdiction

The KCRPC finds, and recommends to the County Board, that all jurisdictional

requirements have been satisfied. Thus, the KCRPC recommends that the County

Board find that the County Board has Jurisdiction to consider WMII’s application.

---

Fundamental. Fairness

The KCRPC

finds, and

recommends to the County Board, that the proceedings

have been conducted in a fundamentally fair manner.

Statutory Criteria

Section 39.2(a) of the Illinois Environmental Protection Act requires that an

applicant for local siting approval demonstrate compliance with nine criteria,

Whether the facility is necessary to accommodate the waste needs of the area it

is intended to serve. The KCRPC finds, and recommends to the County Board,

that the proposed facility is necessary to accommodate the waste needs of the

area it is intended to serve. However, that finding is based upon the KCRPC’S

recommendation that the following special condition be imposed:

a.

The service area for the expanded facility Is limited to the following

counties: Kankakee, Cook, DuPage, Kane, Kendall, Grundy, and Will

Counties in Illinois, and Jasper, Lake, Newton, and Porter Counties in

Indiana,

2.

Whether the facility is so desi~nedjocated,and proposed to be operated that the

public health, safety, and welfare will be protected. The KCRPC finds, and.

recommends to the County Board, that the proposed facility is so designed,

located, and proposed to be operated that the public health, safety, and welfare

will be protected.

However, that finding is based upon the KCRPC’s

recommendation that the following special conditions be imposed:

a.

There shall be no vertical expansion of the existing facility.

b.

The lateral expansion must be considered a separate unit from the

existing landfill, as defined in 35 lll.Adm.Code 810.103, and separate

groundwater monitoring networks shall be maintained for the expansion

and far the existing landfill,

c.

. A field verification must be porfomied to locate all private wells and

community wells, currently used as a source of potable water, located

within 1,000 feet of all boundaries of the property.

d.

Downgradiont monitoring well spacing in the uppermost aquifer

(regardless of gradient) must be provided, where adjacent potable water

supply wells are located in the Dolomite.

e.

Any and all sand deposits that are one foot thick, twenty feet wide, and/or

yield water for a period of more than 24 hours must be monitored as

potential contaminant migration pathways.

2

---

Leachate shall not be recirculated for a period of at least five years after

• the receipt of the •operating permit. • Following this period, the landfill

operator may petition the County Board to recirculate leachate. The

•

County staff shall review the operational record of the site and consult with

•

an independent technical expert to determine if the operator has

demonstrated that leachate recirculation is a safe and appropriate method

to handle the leachate at. this facility. Reasonable expenses of the

technical expert shall be reimbursed by the landfill operator. Leachate

may not be recirculated without the express approval of the County Board.

g.

Soil bioremediation and solidification of waste Is prohibited at the

facility, unless expressly approved In writing by the County Board,

h.

Composting •of waste is prohibited at the facility, unless expressly

approved in writing by the County Board.

An

annual topographic survey of existing waste grades and elevations, of

final permitted waste grades and elevations, and final permitted contours

• shall be conducted by the operator. Results of each annual survey must

be submitted to the County Planning Director within thirty days thereafter

to ensure ongoing compliance with permit conditions at the facility.

J.

The construction quality assurance (CQA) officer shall be physically

present on the landfill site a minimum of once per week during each stage

of critical liner construction includIng:

1)

preparation of sub-grade; 2)10w

permeability soil liner constructIon; 3) geomembrane installation; 4)

geotextile placement; 5) granular drainage layer construction; 6) leachate

system and associated piping installation; 7) final cover construction; and

8) gas system installation. Documents signed and dated by the CQA

officer must be maintained evidencing his or her physical presence, and

must be made available to the County upon request. Technicians utilized

shall have at least five years experience and shall be approved by the

•County Planning Director.

k.

• The active face must not exceed an area approved by the County

Planning Director. If the operator believes the approved area is not

adequate for operations, the operator may petition the County Board for

allowance of a larger active face area.

An

independent professional engineer (approved by the County Planning

Director) shall be on-site to observe placement of the sand drainage layer

and the initial lift of waste placed in any new cell. The engineer shall

report directly to the County Planning Director, and shall have the

•

authority to stop placement of sand or waste during this initial operation if

he or she observes any condition that would or could damage the bottom

liner.

3

A

I

flfl

---

m.

Trucks, trailers, or any other vehicle holding waste shall not be parked or

stored overnight at the facility, or staged on Route 45/52, or on the right-

of-way outside of the landfill facility.

n.

Fencing around the entire facility is required to prevent unauthorized

access. An eight-foot high wqoden or other view-obstructing, County

acceptable fence shall be constructed on the east side of the property to

help block the view of the site. As cells are developed, the fence shall be

extended to encompass, at a minimum, the waste footprint, with the fence

eventually encompassing the entire facility.

o.

Video recordings of all traffic entering the site shall be retained for a period

of at least six months. The County shall have the right to review the

recordings within two days of requesting to review a tape.

p.

The minimum number of random load inspections shall be three per week

as specified in state regulations. For any amount of tonnage received

above an average of 500 tons per day, the number of inspections shall be

increased on the following basis:

For each 500 ton per d.ay average increase, the number of

random weekly inspections shall be increased by twp. For

example, if up to 1000 tons per day average is accepted the

previous•week, the week shall have five inspections (three

inspections for the first 500 tons, and two for the next 500).

Ifthe weekly rate is 2000 tons per day, the inspection rate is

three plus two plus two plus two, to equal nine random

inspections.

After five years of operation, the landfill operator may

request a review and reconsideration of this random

inspection requirement by the County Board. An authorized

County official shall have the right to inspect and to be

present at any random load inspection.

q.

The landfill operator shall pick up litter on a daily basis along Route 45/52

between the landfill and the 1-57 interchange, as well as at least one-

quarter mile south ofthe landfill along Route 45/52. If allowed by adjacent

property owners, the landfill operator shall remove any litter attributable to

the landfill on those adjacent properties on a weekly basis. Perimeter

picking on site shall be performed daily to remove litter from trees, fencing,

and berms.

r.

The landfill operator shall install a radiation detector at the scale house.

• The landfill operator shall record any alarm, and notify the County of each

4

---

occurrence, thelevel of radiation detected, and the manner of response.

s.

The maximum height of the landfill, and the lateral extent of the landfill,

shall not exceed the height and lateral extent shown on the plans provided

•

in the application.

t.

A Groundwater Impact Assessm~nt(GIA) must be submitted to the

•

County and its consultants prior to the submittal of a development permit

•

application to IEPA. The landfill owner/operator shall reimburse the

County for reasonable and necessary costs incurred In review of the GIA.

U. •

Copies of the development permit application and all subsequent permit

•

applications and required subñiittals to JEPA shall be submitted to the

•

County Planning Director at the same time the applications are submitted

to IEPA, at no cost to the County. All permits Issued for the facility shall

be copied and submitted to the County Planning Director within 30 days

after any such permit is received by the landfill owner/operator.

v.

The landfill operator shall build the berms on the west side of the property

at least 1,000 feet in advance of any coil construction, measured from the

southernmost coordinate of the cell.

For exam pie, if the coil’s

southernmost coordinate is S 3500, then the berm shall extend to $ 4500

or further south. • The only exception to this condition is during the

construction of Phase I.

w.

The gas line that is to be relocated shall be fully sealed from any potential

migration from the landfill. Only fine-grained material shall be used as

backfill in the trench.

The construction shall be • certified by an

independent professional engineer, such engineer to be approved by the

County Planning Director~

x.

Proof of each equipment operator’s training shall be provided to the

•

County Planning Director prior to. that operator’s work at the site.

y.

The landfill operator shall notify the County Planning Director seven days

prior to collecting any required sampling or resampling. The landfill

operator shall provIde the County with split samples for chemical analysis.

• The Countyshall select the laboratory to which its sample(s) are sent for

chemical analysis. The landfill operator shall reimburse the County for the

reasOnable and necessary costs of such testing and analyses, provided,

however, that such reimbursement shall not exceed $10,000 per calendar

year, adjust annually for the Chicago/Gary Metropolitan Area Consumer

Price Index.

z.

The landfill operator shall not request the use of sewage sludge as a

• component of final cover in its IEPA permit application without first

5

---

obtaining County Board approval of such use.

aa.

An automatic monitoring system shall be installed to monitor the level of

leachate from each leachate sump area. The system shall record the

head in the sump such that at no time will the leachate level be allowed to

rise above the level that corresponds to one foot of head on the liner. The

landfill operator shall maintain the records from the automatic monitoring

system, and make those records accessible to the County.

bb.

The leachate containment area surrounding the leachate holding tanks

shaD be sized appropriately to handle a potential spill volume equal to all

tanks present, unless the operator can demonstrateto IEPA that such a

requirement promotes operational safety hazards.

cc,

The landfill operator shall provide, as part of Its development permit

application to IEPA, a demonstration (water balance) that the watershed

north of 7500 S Road will not be negatively impacted by the facility. A

copy of this demonstration shall be submitted to the County Planning

Director.

dd.

The County Planning Director shall be notified at least fourteen days • in

• advance of construction of the stormwater control planned for each phase

•

of landfill de~elopment~The operator shall provide the County Planning

Director with a copy of all correspondence to or from I~PArelated to

stormwater detention and runoff control operations.

oe.

The landfill operator shall implement the complaint procedure outlined in

the application, Including a hot line phone number, to address complaints.

if.

The landfill operator shall locate any farm drainage tiles on the property,

and cooperate and coordinate with the County and appropriate drainage

districts concerning possible and/or necessary removal or relocation of

those tiles. Any removed tiles shall be sealed from any potential migration

• from the landfill. Only fine-grained material shall be used as backfill In the

trench. The construction shall be certified by an independent professional

engineer, such engineer approved by the County Planning Director,

gg.

A textured geomembrane shall be used when constructing the interior

sideslope drainage layer, unless otherwise permitted by IEPA.

hft

A textured geornembrane shall be used on the final cover layer, unless

•

otherwise permitted by IEPA.

Final

cover over a filled area is to be placed not later than 60 days after

placement of the final lift of solid waste, unless otherwise permitted by

IEPA. At no time shall the area exceed 10 acres, unless otherwise

6

---

permitted by JEPA.

Leachate storage tanks shall be coated with a corrosive-resistant material

prior to use, unless otherwise permitted by IEPA.

kk.

The leachate containment area is to be inspected for leaks or spills on a

daily basis with all results recqrded in a log. The log shall be made

available to the Cou~ityfor review. Any stormwater suspected of being

contaminated in the leachate containment area shall be handled as

leachate, unless a sample is collected and tested for the annual leachate

parameter list, and it is demonstrated that all organic compounds are

below detection limits, and all inorganic compounds are detected at

•

concentrations below NPDES’ discharge limits.

All

stormwater detention basins and stormwater drainage ways/ditches

shall be Inspected weekly• during the operating life of the facIlity. A written

log shall be kept of the inspections and made available to the County for

review. The inspections shall be conducted on a quarterly basis for five

years after certified closure of the fááility. After five years of closure, the

frequency of these inspections may be decreased to annually with IEPA

approval. At the time of lnspection, all debris shall be removed from the

Inlet/outlet structures. If the sediment buildup in a basin or ditch is within

six inches below the Invert of the outlet structure, the basis shall be

•

dredged and all • sediments removed.

All stormwater drainage

•

ways/ditches on property adjacent to the facility shall be inspected on the

same schedule (weekly during the operating life, quarterly during the first

five years of certified closure, then as approved by IEPA), if located on

publicly-owed land,

If located on privately owned land, the same

inspections shall be performed if allowed by the property owner.

mm. An independent professional engineer (approved by the County Planning

Director) must re-certify any final cover disturbed as a result of installation

of the gas management system, unless otherwise permitted by IEPA.

nn.

Due to the number of adjacent private potable water wells and the

unknown impact of the landfill on groundwater flow within the bedrock

aquifer, the maximum spacing between bedrock monitoring wells around

the entire landfill footprint shall be 250 feet, unless otherwise approved by

IEPA. No later than five years after the start of landfill operation at the

expansion, the operator shalt install two additional deep dolomite aquifer

• monitoring wells at locations and depths specified by the County, unless

otherwise permitted by IEPA.

00.

Leachate generation data will be. recorded weekly per phase. the volume

of leachate pumped/shipped per week shall be recorded in a written log

for each phase of the landfill. A monthly written summary comparing the

7

---

actual leachate generation data to the theoretical volume expected must

be submitted to the County Planning Director.

• pp.

To provide additional hydrogeologic data on the southwest side ofthe

facility, two additional piezometers must be installed. The first piezometer

shall be installed midway between GII9A and G137A. The second

•

plezometer shall be installed midway between G137A and GI4OA. The

two new piezometers.shall be developed, then single well aquifertested.

A minimum of one round of static water levels shall be collected from all

the bedrock monitoring wells and piezometers, and the potentiometric

surface contour map of the bedrock aquifer shall be updated. The boring

logs, as-built diagrams, single well aquifer test data, and test reduction for

the two additional piezorneters shall be included in the development

permit application to IEPA. The two additional piezometers shall be

• proposed by the operator for the groundwater monitoring network in the

development permit application to IEPA.

qq.

Burning of any type (including vegetative prescribed burning) is prohibited

at the facility1 unless expressly approved by the County Board,

rr.

When collecting groundwater samples, a well must be purged a minimUm

of 3 well volumes, and two consecutive field measurements with a

+/-

0.3

• S.U.

for

pH and within 5

for specific conductivity must be conducted,

unless otherwise permitted by IEPA. All field measurements must be

performed in the field at the time of sampling, and not at the laboratory,

unless oth&wise permitted by IEPA.

as.

The temperature of the constructed soil liner that has not yet been

covered by waste shall be monitored continuously and documented in

sub-freezing temperatures. Liner soils exposed to freezing temperatures

must be retested for permeability by lab (tube) or in-situ testing. Any soil

not meeting the 1 x 10 E -07 cm/sec requirements shall be

reconstwcted/recompacted and then retested by permitted methods,

ft.

Citizen refuse boxes shall be emptied daily if refuse is deposited in them.

uu.

Results of any initial test performed to determine the level of noise from

the gas flare or generator systems shall be submitted to the County

Planning Director, If the gas flare or generator systems are materially

changed after initial noise level testing, those systems shall be promptly

retested.

• w.

The citizen-use recycling oppOrtunities at the facility shall include, at a

minimum, mixed paper, glass (green, brown, and clear), at least two

plastic types (numbers I and 2 plastics), ferrous metals, aluminum, and

cardboard. The operator shall submit, to the County Planning Director,

8

---

•

quarterly reports on the tonnage/weight of all material received.

ww. The hours of operation at the facility are limited to one-half hour before

•

and two hours after waste acceptance hours. Thus, operations are limited

to 5:30 a.m. to 8:00 p.m., Monday through Saturday.

xx.

An operable valve shall be installed and continually maintained at each

sedimentation outlet i~asin.Proper operation of any and alt such valves

shalt be verified by no less than quarterly inspectiob, with the results of all

•

inspections documented and provIded to the County upon request.

yy.

Because the model indicates the thickness of in-situ clay is critical for the

diffusion of contaminants, the operator shalt verify that clay soil with at

•

•

• least three feet of continuous thickness is located between the bottom of

the constructed clay liner and the top of the uppermost aquifer (dolomite

bedrock and basal sand unit). If the clay soil is found not to be three feet

• thick, the underlying three feet of material shall be over-excavated and

recompacted so that a minimum of six feet of low permeability material is

• In place immediately below the HDPE liner, and that this material has a

maximum hydraulic conductivity of I x 1

o~

cm/sec.

zz.

Alt conditions must be stated in the development permit application

submitted to I EPA. The operator shalt provide specific notation to the

•

County Planning Director, with the location of each condition in the

development permit application by section, page, and condition numbers.

aaa. The operator shall reimburse the County for reasonable expenses for

services of professionals reviewing and analyzing the groundwater

•

corrective action and assessment monitoring activities.

3.

Whether the facility is located so as to minimize incompatibility with the character

of the surrounding area and to minimize the effect on the value of the

•

surrounding property. The KCRPC finds, and recommends to the County Board,

that the proposed facility is tbcated so as to minimize incompatibility with the

character of the surrounding area and to minimize the effect on the value of the

surrounding property.

However, that finding is based upon the KCRPC’s

recommendation that the following special conditions be imposed:

a.

The landfill operator shall build the berms on the west side of the property

at least 1000 feet in advance of any cell construction, measured from the

southernmost coordinate of the cell.

For example, if the cell’s

• southernmost coordinate is S 3500, then the berm shalt extend to S 4500

or further south. The only exception to this condition is during the

construction of Phase I.

b.

The landfill operator shalt implement the complaint procedure outlined in

the application, including a hot line phone number to address complaints.

9

---

All complaints shall be kept in a log made accessible to the County for

review.

c.

The area on the west. side of the landfill that has no proposed berming

shall have trees planted on the exterior slope of the access road to

provide a visual barrier.

d.

Any vegetation plant~don the west side of the landfill as a visual barrier

•

shall be at least ten feet tall, and at a density adequate to provide a visual

barrier.

e.

A visual barrier independent of the landfill cèp shall be placed at least ten

feet in height above grade at or near the east property line to include

vegetation, undulating berms, and fencing.

f.

Final cover over a filled area is to be placed not later than 60 days after

•

placement of the final lift of solid waste, unless otherwise permitted by

IEPA. At no time shall the area exceed 10 acres, unless otherwise

permitted by IEPA.

4.

Whether the facility is••••~p~atodg~tsIdethe boundary of the 100 year flogd~lain,or

the site is floodproofed. The KCRPC finds, and recommends to the County

Board, that the proposed facility Is located outside the boundary of the 100 year

floodplain.

5.

Whether the Plan of operations for the facility is designed to minimize the danger

to the surrounding area_frpm fire, spills, or other operational accidents. The

KCRPC finds, and recommends to the County Board, that the plan of operations

for the facility is designed to minimize the danger to the surrounding area from

•

fire, spills, or other operational accidents. However, that finding is based, upon

the KCRPC’s recommendation that the following special condition be imposed:

a.

The landfill operator shall install a radiation detector at the scale house.

• The landfill operator shall record any alarm, and notify the County of each

occurrence, the level of radiation detected, and the manner ofresponse.

b.

The facility’s Emergency Action Plan (EAP) shall include contingencies for

management of incidental hazardous (including radioactive) waste

•

inadvertently received at the facility. The EAP shall specify, at a minimum,

qualified contractor criteria, overpacking, and immediate off-site removal

• of the incidental hazardous waste.

6.

Whether the traffic patterns to. or from the facility are designed to minimize the

impact on existing traffic flows. The KCRPC finds, and recommends to the

County Board, that the traffic patterns to or from the facility as designed to

minimize the impact on existing traffic flows. However, that finding is based upon

‘10

‘

,~Ai 1(\

---

the KCRPC’s recommendation that the following special conditions be imposed:

a.

All construction plans for the facility entrance shall be provided to the

County Highway Engineer prior to construction. The landfill operator shall

demonstrate to the County that, sight distance of at least 1,015 feet of

•

visibility can be achieved by the final entrance design. All improvements

higher than’ three and a half feet above the elevation of the nearest

pavement edge shall be set back at least 50 feet from Route 45/52.

b.

The traffic site improvements Identified in the application and conditioned

in this resolution must be completed prior to operation of the expansion~

c.

The landfill operator shall comply with all use and weight restrictions

imposed on area roads by the County Highway Engineer and/or the Otto

Township Road Commissioner.

d.

The County Highway Engineer shall be informed of the planned turning

radius of the first orisite curve, and his approval of that turning radius must

be obtained prior, to construction.

e.

The operator shall consult with IDOl and the County Highway Engineer

concerning installation of advance warning signs from both directions In

advance of the proposed entrance to the facility. For example, a “side

road ahead” symbol siçln, or a ~rucksentering roadway” sign should be

pursued. The operator shall also consult with IDOl and the County

Highway Engineer concerning designation of reduced speed zones in

those areas. and at those tlmes of significant school bus activity on Route

45/52 so as to further minimize the impact of the facility on existing traffic

flows, and to protect the public health, safety, and’ welfare. The operator

shall use its best efforts to effectuate these further precautions. The

operator shall consult lOOT and the County Highway Engineer prior to

submitting a development permit application to IEPA.

f.

An adequate wheel wash and speed bumps must be installed near the exit

of the facility in such a way to minimize mud and dirt on Route 45/52, prior

to the receipt ofthe first load of waste.

g.

The operator must clean Route 45/52 between S ~000Road and S 7500

Road of all’ mud and dirt at least once every two weeks during the active

life of the facility, or at a frequency determined necessary by the County

Highway Engineer.

h.

The operator shall meet with the local school districts to discuss safety

issues to minimize the impact of truck traffic on school bus routes.

i.

The landfill operator shall notify IDOT of all criterion six conditions when

11

---

• applying for an ‘Intersection Design Study (IDS), and those conditions shall

be addressed in the operator’s efforts to secure a construction pen-nit.

“The landfill operator shall provide a copy Of its pen-nit application to the

County Planning Director for review and comment not less than thirty days

prior to submission to IDOl.

j.

The landfill operator shall deVelqp recommended twck routes to and from

• the facility, using Interstate 57 and Route 45/52, and shall distribute those

recommended routes to trucks and contractors using the facility, as well

as to County and Township Highway authorities, and the County Planning

Director.

‘

k.

If IDOT has already approved construction details for the proposed traffic

improvements, such application must be revised to address and satisfy

these conditions, and then be resubmitted for approval.

I.

Unless the speed limit governing the Route 45/52 road segment between

6000 S Road and 7500’S Road is reduced, the following modifications to

the proposed road improvements are required: 1) a full 14-foot median

shall be constructed instead of the proposed 12-foot median; and 2) the

southbound deceleration lane shall measure 530 feet instead of the

proposed 430-foot length.

rn.

The onöite traffic route for the customer convenience area (public drop-off)

must be separate from the onsite traffic route designed for the commercial

‘landfill operation.

n.

Trucks shall not be staged outside the gates prior to the opening ofthe’

facility.

‘

7.

lIthe facility will be treating, storing or disposing of hazardous waste. an

emergency response plan exists for the facility, which,. lnclude~notification,

containment and evacuatign procedures to be used in, case,,,,of an accidental

release. The KCRPC finds, and recommends to the County Board, that the

facility will not be treating, storing, or disposing of hazardous waste. Therefore,

this criterion is not applicable.

8.

if thefacllityi,s to be located in a county where the county board has adopted a

solid waste management plan consistent with the planning requirements of the

Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act,

the facility is consistent with that plan. The KCRPC finds, and recommends to

the County Board, that the facility is consistent with the Kankakee County Solid

Waste Management Plan, However, that finding is based upon the KCRPC’s

recommendationthat the following special conditions be imposed:

‘

a.

The landfill operator must comply with all obligations and responsibilities

•

12

d—.A11O

---

4

of the Host Agreement between the County and Waste Management of

Illinois, Inc.

b.

The landfill operator must employ independent appraisers acceptable to

the County as part ofthe Property Value Guarantee Program.

c.

The Property Value Guarantee Program must be amended to provide that

the Program continues for ten years after the included Property Owners

are notified that waste is no longer being disposed of at the facility.

9.

If thQ facility will •be located In a regulated rcharcie area, any appflcable

requirements specific by the Board for such areas have been met. The KCRPC

finds, and recommends to the County Board, that the facility will not be located in

a regulated recharge area. Therefore, this criterion is not applicable.

Conclusion

The KCRPC finds that all conditions recommended in this, resolution are

reasonable and necessary to accomplish the purposes. of Section 39.2 of the

Environmental Protection Act (415

ILCS

5/39 2) The KCRPC further recommends to

the County Board that, as the KCRPC has fpund and recommended that all applicable

statutory criteria have been met,, local siting approval for the proposed expansion be

granted, subject to the recommended conditions.

The remainder

of

this

page Is intentionally

left

blank.

13

---

This resolution was passed by a vote of9 to 3 on March 9

)~~\H

George

W

‘gton,

Jr., Ch an

ATJ’EST:

‘

‘

C41 14

---

AFFIDAVIT OF SERVICE

The

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

Illinois Code ofCivil

Procedure, hereby

under

penalty of

perjury

under the laws of the United States of America,

certifies that on March 29,

2005,

a copy ofthe foregoing Notice ofFiling was served upon:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 6060 1-3218

Donald J. Moran

Pedersen & Houpt

161 N. Clark Street, Suite 3100

Chicago, IL 6060 1-3242

(312) 641-6888

(312)

641-6895

FAX

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, 11th Floor

Chicago, IL 60601

(312) 814-8917

(312) 814-3669 FAX

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

Illinois, proper postage prepaid, before the hour of5:00 P.M., addressed as above.

HINSHAW & CULBERTSON

100 Park Avenue

P.O.

Box 1389

Rockford, Illinois 61101

815/490-4900

815/490-4901

(fax)

70445362v1 840423