BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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LANDFILL 33, LTD.,
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C1
~‘
~
)
~L~’
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)
Petitioner
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PCB
No. 03-43
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,~
COfl~
vs.
)
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EFFINGHAM COUNTY BOARD
)
& SUTTER SANITATION SERVICES
)
)
Respondents
)
)
AND
STOCK & CO.,
)
)
Petitioner
)
)
vs.
)
PCB No. 03-52
)
(Cases Consolidated)
EFFINGHAM COUNTY BOARD
and
)
SUTTER SANITATION SERVICES,
)
)
Respondents
)
EFFINGHAM COUNTY BOARD’S REPLY BRIEF TO BRIEFS
OF LANDFILL
33, LTD., STOCK
AND
COMPANY,LLC
AND SUTTER SANITATION, INC.
Now comes the Respondent, Effmgham County Board, by and through its
attorney, Edward C. Deters, State’s Attorney for Effingham County,
and hereby submits
its replyto the other parties’ briefs in this matter.
1.
IINTRODUCTION
This matter went to
a hearing before a hearing officer ofthe Illinois Pollution
Control Board on December
19, 2002.
The parties were ordered to submit simultaneous
opening briefs by January 10, 2003, which was done by the parties.
The parties were
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ordered to prepare and file replybriefs by January 17, 2003.
This briefis Efflngham
County’s reply brief.
2.
ARGUMENT
A.
Sutter Sanitation, Inc. Brief
The Effingham County Board adopts and approves the legal reasoning, arguments
and factual representations made in the Sutter Sanitation, Inc.
(Sutter) brief filed with the
Pollution Control Board (PCB) on January 10, 2003.
B.
Fundamental Fairness Issues
1.
Landfill 33 Petition and Brief
Effingham County continues to maintain that Landfill 33, by its failure to
specifically allege any issues offundamental fairness in its Amended Petition of October
18,
2002, has waived these issues offundamental fairness and the PCB should properly
bar their argument now. Ifthe PCB rejects our argument for waiver, Effingham County
shall briefly address the issues raised as to
fundamental fairness by Landfill 33.
a.
Recycling Issue
Landfill 33
alleges that the proceedings were unfair to them as they were
instructed to not proceed with their evidence on the recycling issue
(Landfill 33 Brief p.
5).
Tn reality, when advised by the County Board chairman that the
Board understood that recycling had nothing to
do with the Board’s work, the attorney
for Landfill 33 indicated satisfaction with the reply (R.
C290).
No objection was made to
theruling, no offer ofproofmade, and the issue
is waived.
The brief further alleges that the County Board ruled in favor ofSutter on the
basis ofthe recycling program offered by Sutter (Landfill 33 Briefp.
5).
They cite for
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this proposition only to Board member Charles Voelker’s comment as reflected in
County Board minutes that “recycling atthis location is
a valuable asset and needed in
Effingham County.”
(R. C432).
Landfill 33’s conclusory statement that this comment, apparently standing alone,
is sufficient to show that the Effmgham County Board ruled in Suffer’s favor due to
recycling is without merit.
The County Board’s minutes are not a verbatim transcript of
all discussion held at the September 16, 2002 Board meeting. This was apparentlyjust a
prefatory commentmade by Voelker, and was not addressed to any criteria, which the
minutes reflect were discussed individually subsequent to Voelker’ s comment (R. C432).
Landfill 33
has done nothing more than take a single comment out ofhundreds of pages
ofthe record, and claims from that Landfill
33 was treated unfairly.
This
inference or
conclusion is simplynot supported by evidence in the record.
b.
Alleged Improper Contacts
Landfill 33
suggests that improper contacts, without proper notice to other parties,
were made by the Effingham County Board with Suffer.
To
establish this, again Landfill
33
isolates one
sentence from the record, from the July County Board meeting minutes,
that indicates a time was established to view the site on July 31, 2002 (R.
C 109).
Landfill
33 has presentedno evidence that such a meeting took place.
In fact, Landfill 33, at the
PCB hearing on December 19, 2002, attempted to
establish this.
Landfill 33’s attorney
asked Tracy Sutter several times about the possibility of a July trip by the County Board
to
the site (PCB Tr. p. 73).
Tracy Suffer testified the only meeting with the County Board
he recalled was prior to the filing ofhis application in April (PCB Tr. p. 73).
He
specifically denied any knowledge ofany July tour ofthe proposed waste transfer site
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(PCB Tr. p.
73).
Landfill 33
has presented no credible evidence on this issue, and their
attempt to
do so by inference or innuendo should be rejected by the Board.
2.
Stock Petition and Brief
Stock and Company (Stock) has also
alleged that the Effingham County
proceedings on Suffer’s application were “fundamentally unfair.”
Stock raises four issues
as to
fundamental fairness:
1)
the unavailability ofa transcript; 2)
the recycling issue;
3)
the non-disclosure oftwo familial relationships and their alleged impact on the
Board’s decision, and 4) the alleged ~
parte contacts ofBoard members in July with
Suffer atthe proposed waste transfer site.
These issues will be addressed in turn.
a.
Transcript Unavailablity
The first issue raised by
Stock on the fairness of the proceedings relates to the
unavailability ofa transcript until October 24, 2002.
Stock complains in its brief that the
“transcript was not available through the county until after its deadline for appeal.”
(Stock Brief, p. 31).
However, Stock did file its Petition for Review with this Board in a
timelyfashion, on October 18, 2002.
The Petition alleges essentially the same issues that
are still raised by Stock in its initial brief ofJanuary 10, 2003.
Other than its conclusory
claim ofprejudice as stated in their January
10th
filing, Stock has failed to
specifically
establish how itwas prejudiced by the unavailability ofthe transcript.
Finally, Duane
Stock ofStock and Company, LLC has conceded that after his initial request for a
transcript on October 2, 2002, he did not again request to view or copy a transcript from
Bfflngham County until November
25,
2002
(PCB Tr.
~.
47-48).
Because Stock never
requested a transcript until after the Board’s vote on September
16, 2002, and because
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Stock has not established prejudice in some specific way, due to its unavailability, the
proceedings were fair to Stock on this issue.
b.
Recycling Issue
The second issue raised by Stock on “fundamental fairness” relates to the
recycling issue.
As noted above with respect to this argument as briefed by Landfill 33,
Stock too has done nothing more thanjump to this conclusion based on inference and
innuendo. Stock, like Landfill 33, offers little more than Board member Charlie
Voelker’s single comment regardingrecycling being an asset to the County.
As noted
above, this lone comment rings hollow as reason for this Board to reject the work ofthe
Effmgham County Board on the merits ofthis issue.
Stock also
attempts to suggest that the comments ofNancy Deters show that the
Board’s decisionwas based only on recycling. However, Mrs. Deters is not a decision-
maker.
Her own opinions as to it being “the elephant in the room” were not shared by the
County Board.
Chairman Leon Gobczynski repeatedly refocused the Board to the issues
of the statutory criteria rather than recycling issues
(~,
~g., R.
C 225-226; R. C290).
Stock’s suggestion that a resident of another county, Mrs. Deters, has greater insightto
the Board’s own perspectives on the issues properly before it are totallywithout merit,
and should be rejected by the Board.
c.
Familial Relationship Issue
The third issue of unfairness raised by Stock involves the non-disclosure oftwo
familial relationships, that.of Carolyn Willenburg to Duane Stock and State’s Attorney
Edward Deters to
advocate and maker ofpublic comment, Nancy Deters.
The mere
existence of a familial relationship between a hearing officer and an attorney for a party
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has been found by the Board to be insufficient to
constitute a disqualifying bias.
American Bottom Conservacy, et al v. Village of Fairmont City et
al, 2000 Ill. Env.
665
at *41..42
(IPCB, Oct.
19, 2000).
Tn essence, Petitioners are required to
establish that
prejudice or bias exists.
Stock asks the Board to do so on nothing more than the
existence ofthe two relationships, rather than showing any actual bias or prejudice.
With respect to the relationship between County Board member Carolyn
Willenburg and Duane Stock ofStock and Company, LLC, the Stock briefbarely
addresses this issue.
One sentence is the grand total of this relationship’s mention in their
brief, which is as much attention as it deserves.
Instead, Stock
suggests that the
relationship p~~
and
a failure to disclose the relationship alone made the proceedings
unfair.
This is the type of lazy logic expressly rejected by the Board in American
Conservancy.
Stock now raises the new suggestion that because Effingham County State’s
Attorney Edward Deters is related to an advocate and giver of comment, Nancy Deters,
that the proceedings were unfair.
In American Conservancy, the Board did not even find
bias when the Hearing Officer himselfwas related by marriage to
the attorney for the
municipality.
The Board specifically noted that the hearing officer was not a
decisionmaker.
American Conservancy, at *42.
Here,
as someone simply making
comment on the cause ofrecycling, Mrs. Deters is clearly not a decisionmaker.
Further, the State’s Attorney is not a decisionmaker, and has no vote.
Stock
erroneously alleges in its briefthat the State’s Attorney “suggested that he might even
have a role in the decision-making process.”
(Stock Br. p. 38, citing R.
C130).
A review
ofpage 130 ofthe record does not support this falsehood.
Ifthis leap is made by the
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State’s Attorney act ofmisspeaking, “if we—if the county Board decided to vote on it at
the October meeting,” then Stock is being grossly unfair in its legal analysis and
representations to this Board.
No fair reading ofthe transcript,
at that page or any page
ofthis record properly allows for Stock’s innuendo that the State’s Attorney “suggested”
he might have a role in the County Board’s decision.
d.
Alleged Improper Contacts
The fourth point raised by Stock on fundamental fairness is again the claim that
Suffer conducted ex parte contacts or tours with the County Board.
This issue has been
addressed above.
Stock’s claim that the Board viewed the facility prior to the Suffer
application being filed is irrelevant.
The County Board was apparently there in March or
April reviewing the site as it applied to recycling.
(PCB Tr. p.
67-68).
As to a July tour
of the facility, once again, only inference and innuendo support this
claim ofStock, rather
than evidence offered to this Board in support ofthe claim.
Between the two Petitions forReview, there is no
single, credible claim that
establishes the Efflngham County proceedingswere
fundamentally unfair.
The totality of
the circumstances ofthe various claims ofunfairness raised by Stock and Landfill 33
do
not add up to a fundamentally unfair proceeding.
For these reasons, the Board should
find the Efflngham
County proceedings on the Sutter application were fair, and affirm the
County Board’s approval oflocal
siting.
A.
Statutory Criteria Issues
Both Landfill 33
and Stock have raised numerous issues regarding Suffer’s
evidence on the nine statutory criteria to be considered in granting siting approval for a
waste transfer site.
415 ILCS
5/39.2.
At the public hearing on August
14th
the County
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Board heard numerous witnesses in a three-hour hearing.
Specific aspects ofthe
arguments ofboth petitioners will be addressed in rebuttal.
1.
Landfill 33 Petition and Brief
Landfill 33’s Petition alleges that the Effingham County Board’s decision with
respectto
the 1, 2,
5,
6 and 8 criteria pursuant to 415 ILCS
5/39.2
were against the
manifest weight ofthe evidence.
It is the Petitioner’s burden to
establish the County
Board’s error.
415 ILCS 5/40.1
(b).
As there was essentiallyno evidence presented by
any party at the PCB hearing on December
19, 2002 regarding the criteria, the effort of
Landfill 33
to show that the Board’s decision was against the manifest weight of the
evidence has been done
solelyby their review ofthe evidence from the August public
hearing.
Sufficient
credible evidence was presented by Suffer to
support the County
Board’s decision.
Rather than address point by point each argument in Landfill 33’s
brief, the county will address several main points.
a.
Criterion
1
and
8
Landfill 33
argues at great length that the waste transfer station is not a necessity,
and thus fails the first criteria.
However, Suffer’s witness, David Kinimle, offered his
opinion that the facility was necessary to accommodate the waste needs ofEffingham
County (R. C 144).
Kimmle indicated that the transfer station was consistent with the
Effingham County waste management planwhich required both in and out-of-county
options for disposal of our waste (R.
C 143).
While contrary views were expressed by
witnesses called by Landfill 33
at the Public Hearing, Landfill 33
has failed to meet its
burden of establishing to the PCB that the evidence presentedby Suffer was insufficient.
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b.
Criterion 2
Landfill 33
also suggests that because a building that at one time constituted a
residence,
sits within 1000 feet ofthe
site, that the criteriaregarding location cannot be
met by Sutter.
Though Landfill 33
presented no
evidence to
establish that the building
remains a residence, it continues to advance this argument.
The testimony at the public
hearing indicated that Suffer would not use the building as a residence, but rather would
be used as office space
(R. C 147).
Though the County Board could have chosen not to
accept the offer that the building would be used as an office, to
do so was not against the
manifest weight ofthe evidence.
c.
Criterion 5
Landfill 33
called a witness at thepublic hearing, Brian Johnsrud, who testified in
great detail about every imaginable problem that could afflict the waste transfer site.
His
testimony takes up nearly sixty pages oftranscript, largely uninterruptedby questions,
even from Landfill 33’s attorney (R. C230-289).
In all that discussion, Johnsrud did
admit that only a minimization of risk was required by the criteria, not an elimination of
risk
(R. C285-286).
While coy about it, Johnsrud acknowledged that he was a paid
consultant to Landfill 33
(R. C288).
For that reason, his potential bias could have been
considered by the Board.
The Board partially addressed concerns aboutpotential dangers
by requiring a bond to be posted by Sutter on their own initiative (R. C432).
In light of
contradictory opinions on the issue offered by witnesses for Sutter, it was not against the
manifest weight ofthe evidence for the Efflngham County Board to
find these issues
satisfied.
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In summary, Landfill 33 has failed to meet the burden imposed on it by Illinois
law, to establish that the Effingham County Board’s approval oflocal
siting for the waste
transfer station was against the manifest weight ofthe evidence.
1.
Stock Petition and Brief
Stock has also raised several points that it feels shows the County Board’s
determinations on the statutory criteria were against the manifest weight ofthe evidence.
They specifically argue that criteria 1, 2, 3,
5
and
8 ofthe Act were not met.
The
Effingham County Board makes the following arguments
in rebuttal.
a.
Criterion
1
As acknowledged by Stock, there is no requirement that an applicant be able to
show “absolute necessity” to meet criterion one.
~
~g.
American Bottom
Conservancy, at *54~Substantial testimony was offeredby David Kimmle, an engineer
testifying for Suffer, that such a transfer site met the necessity requirement.
Kimmle
stated that to give effect to the County’s stated preference for accessing out-of-county
landfills, the transfer station was necessary (R.
Cl42-143).
Kimmle testified as to the
various out-of-county options in a 30-mile and 50-mile radius ofEfflngham.
He opined
that
to economically access a waste transfer site,
and move waste to out-of-county
landfills, the sitewas necessary.
Stock concedes that for waste haulers such as Suffer, the economic feasibility of
accessing out-of-county landfills is enhanced by the transfer site.
Stock just argues that
economic realities do not create “necessity.”
However, the Board members (all of whom
are Effmgham County residents) heard the testimony about the various sites available to
Suffer in the 50-mile radius.
It was not only permissible, but logical for them to
consider
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the logistics and economics oftrash hauling to Shelbyville or Coles County from some of
the rural outposts of Suffer’s service area.
The County Board’s decision that these
economic realities and the County’s waste management plan made an Effingham County
Waste Transfer site necessary was not against the manifest weight ofthe evidence.
b.
Criterion 2
Stock also alleges that criterion two regarding the location and design ofthe
facility did not properly protect the public health, safety and welfare.
Stock, as did
Landfill 33, claims that the location ofan unoccupied dwelling within 1000 feet ofthe
siteprecludes approval.
Stock also attempts to raise the issue of a new dwelling plopped
on Stock and Company property after the Board’s decision as being relevant to the
Board’s decision here (Stock Briefat p.
19, fn. 6).
Neitherbuilding precluded siting approval.
The Stock property building was only
put on that location after the Board’s vote, presumably to create another argument for
Petitioners.
The building at the waste transfer station, according to testimony at the
hearing, will only be used as an office (R.
C 147).
While argument is made regarding the
design specifics ofthe
site, conflicting testimony was heard
from the various witnesses
from each side.
Based on all the information before it, the County Board’s determination
was not against the manifest weight ofthe evidence.
c.
Criterion 3
With respect to
criterion three, the Stock argument falls particularly flat.
Suffer
presented a witness, James Bitzer
,
who testified as to his opinion on compatibility ofthe
site to the character ofthe surrounding area and to the values ofreal estate.
The site will
not accept hazardous waste (R.
C160).
The site itself is converting an existing site, a
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grain elevator in a remote location in Efflngham
County, to
a new use.
Stock failed to
meet its burden in showing ‘the board’s decision on this criterionwas erroneous.
d.
Criterion
5
Next, Stock complains that Sutter has not done enough to
minimize dangers at the
site.
The Stock brief cites, even adding emphasis as Petitioner sees fit, to Waste
Management ofIllinois, Inc., v.
IPCB,
123 Iii. App.3d 1075,
1090 (2’~
Dist.
1984), for
this proposition.
The Waste Management decision addresses issues regarding the
incompatibilityofthe site to the area, pursuant to
415
ILCS
5/39.2
(a) (iii), rather than
Section 39.2 (a)
(v).
This Board should reject Stock’s efforts to
expandthe rationale of
Waste Management to criterion five.
Regardless, the County heard substantial evidence from
Suffer’s witness, David
Kimmle, upon which to
conclude the criterion was met.
Kinimle advised the Board that
he had reviewed Suffer’s proposed site for issues such as leachate, fire, spills and traffic
issues.
Suffer proposed a pit and a 1,000 gallon leachate tank (R. C150).
Description
was given on how the facility would dealwith spillage and leaks (R.
C 149-150; Cl58).
Finally, he reassured the Efflngham County Board that the illinois Environmental
Protection Agency would also reviewthe proposed site from a “technical stand point.”
(R. C154).
For these reasons, it was not against the manifest weight of the evidence for
the Board to conclude that this criteria was met.
e.
Criterion
8
Finally, the Stock brief raises criterion eight,
consistency with the County waste
management plan, as not being met.
Stock againraises the availability ofthe Shelbyville
transfer station as proof on this point, that it is
economically viable for Sutter.
However,
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the County Board members may consider their own views on ease ofaccess to
Shelbyville, as well as Mr. Kimmle’s opinion,
on the real economic viability ofwaste
transfer site to waste haulers.
In doing so, the County Board’s determination was not
against the manifest weight ofthe evidence.
CONCLUSION
For the foregoing reasons, and those as stated in Effingham County’s initial brief,
Effingham County respectfully requests that the Pollution Control Board affirm the
September 16, 2002 decision ofEffingham County, approving Suffer Sanitation, Inc.’s
application for local siting of a waste transfer station.
RE
CTFULLY
MITTED
Edward C. Deters
State’s Attorney
Effingham County
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PROOF
OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing
document were
served by placing same
in
a
sealed envelope addressed to:
Dorothy Gunn, Clerk
Pollution Control Board
100W.
Randolph Street
Suite 11-500
Chicago,
IL
60601
And one copy of the foregoing document was
served
by placing same in
a sealed
envelope addressed to:
Stephen
F.
Hedinger
Hedinger Law Office
1225 S. Sixth St.
Springfield,
IL
62703
Christine Zeman
Hodge Dwyer Zeman
P.O. Box 5776
Springfield,
IL
62705-5776
Charles J.
Northrup
Sorling, Northrup, Hanna, Cullen & Cochran, Ltd.
P.O.
Box 5131
Springfield,
IL
62705
an~~(depositin~same
in the
United States mail in
Effingham, Illinois, on the
/(~2
day of
L~JyVURJ2~~
i~,
.
,
2003, with postage fully prepaid.
