8
ILLINOIS POLLUTION CONTROL BOARD
June 26, 2009
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent
KENDALL COUNTY,
Intervenor.
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PCB 07-146
(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.
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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.
1
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.
2
1
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
2
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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
8
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.
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3
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:
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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.
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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.
4
Yorkville states that Parish did not attend any of the landfill siting hearings. Response
at 5.
8
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.
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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?
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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
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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
Sixth Floor
Chicago, IL 60603
PCB 2007-146
Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
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
2455 Glenwood Avenue
Joliet, IL 60435
PCB 2007-146
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, IL 61350
PCB 2007-146
Ms Valierie Burd, Mayor
City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
PCB 2007-146
Michael Roth, Interim City Attorney
City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
PCB 2007-146
Eric C. Weis
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, IL 60560
10
PCB 2007-146
James Knippen
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