BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

HEARING OFFICER ORDER

ILLINOIS POLLUTION CONTROL BOARD

June 26, 2009

FOX MORAINE, LLC,

Petitioner,

UNITED CITY OF YORKVILLE, CITY

(Pollution Control Facility

Siting Appeal)

HEARING OFFICER ORDER

On April 21, 2009, Valerie Burd testified at the three day hearing in the above-

captioned case. As discussed in more detail later, at the time of hearing, Ms. Burd was

the mayor of respondent, United City of Yorkville. (Yorkville) Ms. Burd had previously

served as an alderman, until her swearing in as mayor on May 8, 2007.

On April 23, 2009, Fox Moraine, LLC. (Fox Moraine) tendered a written motion

for a finding that Valerie Burd was not credible as a witness. The motion was marked as

Hearing Officer Exhibit 2. On April 24, 2009, Fox Moraine filed an amended motion for

a finding that Valerie Burd was not credible as a witness. (Amend. Mot.). On May 7,

2009, Yorkville filed its response in opposition to the motion and in support of Ms. Burd.

(Resp.).

For the reasons set forth below, Fox Moraine’s amended motion is denied.

FOX MORAINE’S AMENDED MOTION

Citing the Board’s order in Forest Preserve District of DuPage County v. Mineral

and Land Resources Corporation, et al., PCB 96-84, slip op. at 2 (November 6, 1997),

Fox Moraine argues that under the Board’s present procedural rules the hearing officer is

not required to make a finding regarding the credibility of each testifying witness.

However, Fox Moraine acknowledges that a finding nonetheless assists the Board in its

ultimate determination. (Amend. Mot. at 1). “A hearing officer’s evaluation may also

take into account contradictory statements made by a witness in the course of his or her

testimony. However, the task of the hearing officer is not to weigh conflicting testimony

of different witnesses.” Forest Preserve District of DuPage County, slip op. at 2.

Fox Moraine argues that:

Valerie Burd (an alderman at all relevant times herein until May 8, 2007

when she was sworn in as mayor) was elected mayor on April 17, 2007,

after having run as an anti-landfill candidate, and that she prejudged the

merits of the case along with others controlled and influenced by her, and

that she led a calculated, deliberate, collaborative effort to wrongfully deny

the siting application. (Amend. Mot. at 2).

Fox Moraine opines that the record in the above-captioned matter “demonstrates

conclusively that Valerie Burd was not a credible witness.”

Id.

Specifically, Fox

Moraine first argues that Ms. Burd testified falsely on April 21, 2009, when she denied

knowing that Ron Parish and Todd Miliron were landfill opponents. Amend. Mot. at 2-6.

Mr. Parrish and Mr. Miliron were members of Ms. Burd’s campaign committee for

mayor.

Id.

In support of its argument, Fox Moraine cites to portions of the transcripts

regarding Yorkville’s annexation and landfill siting hearings where Mr. Parish and Mr.

Miliron repeatedly expressed their respective annexation and/or anti-landfill positions.

The remaining allegations set forth in Fox Moraine’s amended motion, including

Ms. Burd’s testimony that she was not a landfill opponent prior to the final vote on the

landfill application, are intended to buttress Fox Moraine’s argument that Ms. Burd was

not a credible witness. Fox Moraine likewise finds troubling a number of other

instances

The cited transcripts in the amended motion include City Council meetings and the

landfill application hearings that Fox Moraine alleges Ms. Burd attended as a City

alderman.

Id.

In addition, Mr. Parish testified that he contributed a total of $2,000 to the Burd

campaign for mayor. Tr. at 159; 4-21-09. The donations are not reflected in the Illinois

State Board of Elections Campaign Disclosure Report. Pet. Exhibit 15.

Fox Moraine notes that Mr. Parish was a member of Ms. Burd’s campaign

committee as well as a member of Friends of Greater Yorkville (FOGY), an anti-landfill

organization. Amend. Mot. at 6-7.

Annexation was required before the landfill siting could go forward. Amend. Mot. 0.

at 7; Tr. at 302; 4-21-09; Tr. at 154-155; 4-22-2009. Ms. Burd testified, however, that she

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ce for services from April 27, 2007

through May 29, 2007, in the amount of over $94,000. This issue was addressed in a

Hearing Officer order dated October 30, 2008.

, including conflicting testimony, that Fox Moraine contends supports their

argument that Ms. Burd’s testimony was not credible.

Yorkville’s Response

Yorkville argues that:

Fox Moraine now feebly attempts to attack [Burd’s] credibility by isolating a few

statements made by two members of the public out of thousands and

thousands of

statements made by numerous people at approximately 200 hours

of Yorkville

meetings and hearings on proposed annexations and the proposed

landfill in 2006

and 2007. Resp. at 1.

Yorkville also states the then-Alderman Burd “consistently testified at her

deposition and the hearing [April 21, 2009] would not discuss the proposed landfill at

meetings of her campaign committee, nor would she allow anyone at those meetings to

discuss it.” Resp. at 2. Yorkville also responds to a number of additional arguments

advanced by Fox Moraine.

Discussion

Fox Moraine is correct that pursuant to the Board’s current applicable procedural

rules, the hearing officer is not required to make a credibility determination. 35 Ill. Adm.

Code 101 effective January 1, 2001. However, adhering to the Board’s long-standing

practice of credibility determinations by the hearing officers, I will address Fox Moraine’s

amended motion to make a narrow credibility determination. The credibility

determination relates to Ms. Burd’s testimony and her knowledge or lack of knowledge of

two of her campaign committee members, Mr. Parish and Mr. Miliron, and their

respective anti-landfill positions.

In Forest Preserve District of DuPage County, Illinois, v. Mineral and Land

Resources Corporation, et al., PCB 96-84, (November 6, 1997), the Board discussed the

role of the hearing officer credibility determination in the context of a motion for mistrial.

The motion was made after the Board staff hearing officer resigned his position after

beginning a hearing, which was then to be presided over by another Board staff hearing

officer. The Board stated that:

In evaluating credibility, a hearing officer assesses qualities such as demeanor,

tone of voice, and various intangible characteristics that a transcript does

not

reflect. A hearing officer’s evaluation may also take into account

contradictory

statements made by a witness in the course of his or her

testimony. However, the

task of the hearing officer is not to weigh

conflicting testimony of different

witnesses. The Board makes findings

of fact based upon consideration of the

entire record. 415 ILCS 5/33

(1996). PCB 96-84, slip op. at 2.

At that time, 35 Ill. Adm. Code 103.203(d) required that the hearing officer make a

statement as to the credibility of witnesses. The rule provided:

Mayor Valerie Burd testified at the Board’s siting appeal hearing on April 21,

2009. Among other things, she testified that she had decided to run for mayor in late

summer of 2006. (Tr. At 181; 4-21-09). She also testified that Mr. Parish and Mr. Miliron

were regular members of her campaign committee that attended her campaign meetings

every week. Tr. 182; 4-21-09. The campaign committee was in place up to at least the

election on April 17, 2009. Tr. at 185; 4-21-09. She testified that she was not aware that

Mr. Parish and Mr. Miliron were landfill opponents. Tr. at 182-184.

In Fox Moraine’s amended motion, Fox Moraine sets forth at least five instances

that took place in the annexation hearings (September 26, 2006 through November 30,

2006) where Mr. Parish clearly and unequivocally expresses his anti-landfill position.

Amend. Mot. at 2. Similarly, Fox Moraine sets forth at least seven instances in the

annexation and landfill hearings (September 26, 2006 through March 26, 2007) where

Mr. Miliron speaks out against the landfill. Amend. Mot. at 3-5. At a City Council

landfill siting hearing on March 26, 2007, and in one of his more vociferous opposition

statements, Mr. Miliron stated that “I feel like a Jew being told Auschwitz is a summer

camp. I had garbage storm troopers visit my home and take pictures.” Record at

C13339; Tr. at 122; 4-22-09. Yorkville does not refute Fox Moraine’s allegation that

Ms. Burd was present at all cited to meetings or hearings where Mr. Parish and Ms.

Miliron voiced their respective opposition.

Upon the conclusion of the hearing, the Hearing Officer shall make a statement

At the hearing on April 21, 2009, Ms. Burd testified that she listens at the City

Council meetings, but has never heard, or does not recall, any statements by Mr. Parish or

Mr. Miliron opposing the landfill. She further testified that Mr. Miliron was disruptive

and spoke out a lot, but she did not know he was affiliated with any group. Tr. At 188: 4-

21-09. A portion of the April 21, 2009 Board hearing transcript reads as follows, with

questions being asked by petitioner’s attorney Mr. Mueller, and questions being answered

by Ms. Burd:

Q. Were you aware that Todd Miliron was a landfill opponent?

A. Was I aware of it, no.

as to the credibility of witnesses. This statement shall be based on his legal

judgment and experience and shall indicate whether he finds credibility to be

at issue in the case and, if so, the reasons why. This statement shall become

a part of the official record and shall be transmitted by the Hearing Officer to

each of the parties in the case. No other statement shall be made or be

appropriate unless otherwise ordered by the Board. 35 Ill. Adm. Code 103.203(d),

as cited in PCB 96-84, slip op. at 2.

Yorkville states that Parish did not attend any of the landfill siting hearings. Response

at 5.

Q. Were you aware that Ronald Parish, who just testified, was a landfill

opponent?

A. No.

Q. He was described, in fact, by Mr. Dombrowski not ten minutes ago as

speaking

out against the landfill at the meeting at the high school, which

was a City

sponsored meeting. That didn’t cause you to become

aware that he was a

landfill opponent?

A. I don’t recall when he said what. So no, we didn’t—like I said, we never

discussed it personally.

Q. You never listened to what he had to say at meetings?

A. I did listen to him, during the meetings when he spoke out against annexation,

but I - - I did not discuss it with him personally.

Q. You never heard him speak out against the landfill?

A. I don’t recall.

Q. And you never heard Todd Miliron speak out against the landfill at any city

council meetings?

A. I don’t recall who said what and when.

Q. Well at any meeting did you ever hear Todd Miliron speak out against the

landfill?

A. I heard him speak out very passionately about issues, but if it was about the

annexation, if it was about Sleepy Hollow Road, at this time I can’t tell

you

exactly what he said.

Q. My question is: Did you ever hear Todd Miliron, at any city council meeting,

speak out against the landfill?

A. I don’t recall.

****************

Q. And you never became aware that he was against the landfill?

A. We never discussed it.

Q. I’m asking you if you ever became aware that he was opposed to the landfill.

A. I can’t comment. I don’t recall what he said.

Mr. Mueller: Mr. Halloran, I’d ask you to direct the witness to answer the

question. I think she’s being intentionally evasive.

Mr. Halloran: I think that’s either a yes or no, Mayor Burd, what Mr. Mueller was

asking. If you could ask the question one more time and see what happens.

Q. Were you ever aware that Todd Miliron was an opponent of the landfill?

A. I don’t know what to say to that. I don’t - - no, I’m not aware of it.

Q. And Mr. Milliron was on your campaign committee, right?

A. Yes, he was.

Q. Mr. Parrish was on your campaign committee?

A. Yes.

************

Q. And also, did it embarrass you that a member of your campaign committee

[Miliron] was being threatened with eviction of city council meetings

when you

were running for mayor?

A. Do you want me to answer that again?

Q. I’m just asking you. Did it embarrass you that he was being threatened with

eviction?

A. No.

Q. And also, were the opposition groups and their members somewhat disruptive

at the city council meetings dealing with annexation and the like, were

they

disruptive?

A. I - - yes. You could say they were disruptive, interrupting some of the

discussions.

Q. Would you say Mr. Milliron was one of the most disruptive members of the

opposition groups?

A. I can’t say that he was affiliated with any group, so I don’t know. He was

disruptive. He spoke out a lot. Tr. At 182-184; 4-21-09.

While observing Ms. Burd testify, I did not observe or perceive any body

language, difference in demeanor, vocal inflections or varied paralinguistic cues that

would impeach her credibility. Since “the task of the hearing officer is not to weigh

conflicting testimony of different witnesses,” PCB 96-84, slip op. at 2, I make no finding

as to the ultimate plausibility of any of Ms. Burd’s statements. Such findings are within

the province of the Board, based on its evaluation of the totality of the record and the

testimony of all witnesses.

Conclusion

For all of these reasons, Fox Moraine’s amended motion for a hearing officer

finding that Valerie Burd was not a credible witness is denied.

IT IS SO ORDERED.

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, Illinois 60601

312.814.8917

CERTIFICATE OF SERVICE

It is hereby certified that true copies of the foregoing order was mailed, first class,

on June 26, 2009, to each of the persons on the attached service list.

It is hereby certified that a true copy of the foregoing order was hand delivered to

the following on June 26, 2009:

John T. Therriault

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph St., Ste. 11-500

Chicago, Illinois 60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

312.814.8917

PCB 2007-146

Derke J. Price

Ancel, Glink, Diamond, Bush & Krafthefer, P. C.

140 South Dearborn Street

Rockford, IL 61105-1389

PCB 2007-146

Leo P. Dombrowski

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Anthony G. Hopp

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Thomas I. Matyas

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

James B. Harvey

Buck, Hutchison & Ruttle

Mueller Anderson, P.C.

609 Etna Road

Ottawa, IL 61350

PCB 2007-146

Ms Valierie Burd, Mayor

Michael Roth, Interim City Attorney

Kendall County State's Attorney

Kendall County Courthouse

Walsh Knippen Knight & Pollick

2150 Manchester Road

Suite 200

Wheaton, IL 60187-2476

PCB 2007-146

James S. Harkness

Momkus McCluskey, LLC

1001 Warrenville Road

Suite 500

Lisle, IL 60532