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VIA FACSIMILE (815I49O-4~O1)

AND FIRST CLASS MAIL

j~rd,

LL60~4&

(630) 572-8800

(630)

9~6.

6280 Fax

Mr.

Charles

F. Helstefl

Hinshaw

&

Culbertsofl

-

100

Park

Ave.

Rockford,

IL

61101

Re:

Waste

Management of Illinois

V.

Kankakee County Board. PCB 04-i.~

-

near Mr. Helstefl

-

The

purpose

of this

Letter

is

to

make

a

settlement

proposal

to

Kankakee

County

regarding

the

pending

litigation

before

the Illinois

Pollution

Control

Board (‘P68”).

Waste Management believes that

a

settlement

pursuant to the terms set forth below

provides

both

parties

with a myriad

of benefits,

while~

both

parties avoid

a worst case

scenario.

The

proposed

settlement

is

simple

and

straightforward

and

can

be

consummated

within

a

vary

short

period

of

time,

assuming

both

parties

are

amenable.

1.

Settlement

of

Pending

Pollution

Control

Board

Case

(No.

04-1 8~1.

Kankakee

County

and

Waste

Management

are

the

only

parties

to

the

pending

PCB case.

Like any other contested legal matter,,

the parties to this case may settle their dispute

pursuant to an appropriate Stipulation filed with the

PCB.

Here Waste Management

and

the County

would

enter Into

a

Stipulation

in

Which

the

County

agrees not

to

•

contest Waste Management’s

appeal

and acknowledges

that the

underlying record

contains evidence

supporting

Waste Management’s

contention that siting

approval

should

have

been

granted.

The Order

issued

by

the

PCB

as

a

result

of

this

Stipulation would be the same as the

Order the PCB would issue if it found in

Waste

Management’s favor in the

pending appeal.

-

--

2.

Amendment

of

Host

Community

Aqreen~flt.

Simultaneously

With

Waste

~

to

settle

the

panding

____________

PCB

case,

Waste

Management

and

the

County

would

enter

into

a

further

-

--

Amendment to the Host Community Agreement,-cOr~ditiOfledon Waste Management

achieving

final

and

non-appealable

siting

pursuant

to

the

settlement

described

above.

The

Amendment

would

provide

for

the

following,

as

well

as

any

other

conforming

changes

identified by either of us.

a.

Siting

ConditiOO~.

Waste

Management would

agree to

all

of the

conditions set

forth

in

the

March

9,

2004

Kankakee County

Regional

Planning Commission report entitled uReco,.nmefldattons Relating tGthe

Application

of WMU for

Local

Siting

Approval

of an

Expansion of the

Ecisting

Kankakee

Landfill.”

Among

other things,

this

will

insure that

the expansion will be deve~opec1

with

a

double composite liner system.

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b.

Reduction

in Ouof-County~Wa~ste.

The

annual cumulative amount

of out-of-county

waste

Waste Management would be able to accept

fri

the

expansion

area

would

be

reduced

by

one—third

(a

reduction of

328,967 tons per year).

C.

host Fee Payments.

The one-time expansion fee would be

reduced

-

-

by

one-third

(to

$1,166,725)

and the

minimum

guaranteed

host fees

would be similarly reduced by one-third.

However, the per

ton

host fee

paid to the

County would not decrease.

d.

Environ~nentelErih8nCementFund.

In

addition to the

existing

per

ton host

fee,

Waste

Management will -pay

an additional ten

cents

per

ton

In

order

to

fund

a

new

Environmental

Enhancement

Fund

to

be

managed

by the

County

and

used,

in

the

County’s discretion, to fund

environmental

projects,

including

clean

up

projects,

throughout

the

County.

.

•

-

e.

SuDport of -New Technolooles.

In order to support the development

of

new

technologies

for

the

management

of

solid

waste,

Waste

Management will

make available to

the County,

or its

designee, a flve-

acre

parcel of property adjacent to the

Kankakee Landfill or at another

location

acceptable

to

the

County.

This

site

can

be

used,

at

the

County’s

discretion,

as a

location

on

which

new waste

management

technologies

can

be

tested and

refined.

3.

Benefits

ofsettlement.

Obviously,

both

the

County

and

Waste

Management

-

would

avoid the

uncertainties

of continued

litigation with

respect to siting.

If Waste

Management prevails in

the

pending

case,

the result would be an expanded

landfill

that could

accept

more than

tM tons of

waste

per year.

If it does not, the Kankakee

Landfill

will

likely

close

permanently.

The settlement

would

result

in

the

County

assuring

disposal

capacity for its

residents and

businesses for

an extended

period

and would significantly reduce perceived

traffic

and other impacts identified by landfill

opponents.

Assuming

the

expanded

Kankakee

Landfill

accepts

650,000

tons

of

waste annually,

the County would receive payments

exceeding

$2,500,000

per

year.

~

Jfthere appears to be a desire

on the part of the

County

to

consider

a

settlement

of this

dT

e-piis

t1othe=terms--seLfotth~abo~re,

--

-~

we should move

forward

quickly to

finalize

the required

documentation

so that the full

County

eoard

can

consider

the

documented:

settlement

at

its

May

10

meeting.

In order to

expedite the

County’s consideration

of this

proposal,

I have

provided

a

copy

of this letter to Ed Smith, the County State’s Attorney.

I trust that either you or

Mr.

Smith

will

provide

a

copy

to

the

County

Board

Chairperson,

Karl

Kruse,

for

distribution to Board members.

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05/23/05

MON 11:04

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UNITED DISPOSAL

3

I look forward to hearing fro.m you.

Very

truly yours,

Dennis M. Wilt

Vice President and General Counsel

—

Midwest Group

DMW/LK

cc:

Lee Addleman

Dale Hoekstra

Don Moran

Chris Rubak

Ed Smith

---

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May

11,

2005

-

Mr.

Merlin Karlock

Municipal Trust and Savings Bank

720

West Main Street

P. 0. Box

146

Bourbonnais,

IL

60914

RE:

WASTE MANAGEMENT OF ILLINOIS,

INC.

v.

KANKAKEE

COUNTY BOARD

Pollution Control Board No.

04-1 86

Dear Mr. Karlock:

-

At

your

request,

I

have

reviewed

Dennis

Wilt’s

letter

on

behalf

of

Waste

Management of-Illinois to

Charles Helsten, dated

May 2,

2005,

suggesting

a

possible

settlement of the referenced

Pollution Control Board appeal.

That letter is

nothing but a

shameless attempt to avoid the

jurisdiction

of the Pollution Control

Board, to undermine

the responsibility of the Kankakee County Board to defend its

previous majority decision

denying the

siting

request, and to achieve

an

improper

and

illegal reconsideration and

repeal ofthat previous decision.

-

Particularly,

I would like to address

some of the points

raised

in

Mr. Wilt’s

letter.

In

his

first

paragraph,

he

suggests

that

a

settlement provides

a

“myriad

of benefits”

while both

parties

“avoid

a

worst

case scenario.”

The

will

of the

Kankaicee

County

Board,

as

expressed

in

its

March

17,

2004,

decision

denying

the

siting

application

which

decision was

duly

arid

legally set

forth

in

a

Board

resolution of the

same date,

was

that

there

should

not

be

sri

expansion

of

the

Waste

Management

facility.

Therefore, the

“worst

case

scenario”

from the

County

Board’s

perspective

is

that

the

facility will now be

buitt

in contravention

of

the

Board’s

previously

expressed majority

decision.

Since

Mr.

Wilt’s

settlement

proposal

contemplates

that

the

facility

will

be

~constructed1=itis4pfacLtheCountvs

wocasescenanp—

—--

—-

-

-

This is not mitigated by

the so-called

benefit of

Waste Management agreeing to

all

of the

special conditions

suggested in

the

Regional

Planning Commission’s

report

since

Waste Management

did

not appeal from the special conditions that were

attached

to the

County Board’s previous finding that siting criterion ii was

satisfied. The other so-

called

benefit

promised

in

Waste

Management’s

settlement

proposal

is

that

Waste

$ubiirba~i.

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HOFFMc~N; MUELLER;

CREEDON

P.02/SB

Mr.

Merlin Karlock

WASTE

MANAGEMENT OF ILLINOIS,

INC.

v.

KANK.AKEE

COUNTY BOARD

May11, 2005

PageNo.2

-

Management will

reduce by one-third

(1/3), the amount of out-of-County waste received.

This

“benefir

is,

of course,

accompanied

by

a

commensurate

reduction

in

host

fees

paid by Waste Management,

including

a

one-third

(1/3) reduction

in

the

initial

fee to be

paid.

However,

because this

reduction in

intake volume will

not reduce the overall size

of

the

facility,

the

negative

impact

on

property

values

and

the

character

of

the

surrounding area,

will

not

be reduced.

The County

Board

previously

found,

on

March

17,

2004,

that there was

no need for the

facility, that the facility

is not

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 and

that the

traffic patterns to/from the

facility

are

not

designed

to

minimize

the

impact

on

existing

traffic

flows.

Nothing

in

Waste Management’s settlement proposal addresses these deficiencies.

Mr.

Wilt’s

letter

erroneously

.

states

that,

since

Kankakee

County

and

Waste

Management are the only parties

in

the

pending

Pollution Control Board

case, they can,

like

the

parties

in

any

other

litigation,

settle

their

dispute.

This

is

a

complete

misstatement of the facts and the

law.

At

the

initial siting

hearing,

Kankakee County

was not

a

party,

but rather was

the decision maker.

Waste Management has appeaJed

from

Kankakee County’s

lawful decision.

Settlement

at this time

is,

therefore,

not

like

two

litigants

in

an

ordinary lawsuit deciding

to

settle

their

dispute,

but

rather

is

like

a

-

litigant

who

has

appealed

a

Trial

Judge’s

decision,

convincing

that

Trial

Judge

to

change that decision while the

appeal

is

pending.

The

law is well-settled

that a

Trial

Judge

loses jurisdiction of a

case,

once

it has been appealed

by an unhappy litigant to

the

next

level.

The fact that Kankakee

County

is

now a

“party’

within the

meaning of

that term

in

the

Pollution

Control

Board

appeal does

not

change the

County’s previous

status

as the

decision maker

and

reflects

the public policy that the

County

now has an

obligation

to- defend

its decision on behalf of all of those who opposed the original siting

application.

-

Frankly,

I

believe

that in

this

context the County

Board and Waste Management

are

legally and ethically prohibited

from settling the matter at this time.

Settling

the case

is,

effectively an

illegal

backdoor repeal

of the

March

17,

2004,

resolution denying

the

siting

application.

You

will

recall

that

there

were

previously

serious

doubts

raised

(including

by the

State’s Attorney himself)

regarding whether

or not the

County

Board

even

had jurisdiction to

reconsider its siting decision.

Certainly, whatever jurisdiction

it

-

rr~a~h—ha’W~ecor-~Id

ébeeñ~fr~iócabl~~iast

once

thirty

days

had

elapsed

and

the

matter had

been

appealed

to

the

Pollution

Control

Board.

In

legal

terms,

the

majority decision

of March

17,

2004,

is now,

and has for

a

long time,

been-

“final.’

Waste

Management’s

l~roposaIrepresents

nothing

more

than

a

clumsy

and

thinly-veiled attempt to get around that

finality,

an attempt that will

expand

the

existing

litigation,

exponentially.

L~wc~ffl~zsaf

GEORGE~

MUILLERJ

P.C.

~O1St~tc$tntt

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IL

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Mny—12—2e~5 18:~2

HOFFMR1N;

MUELLER; CREEDON

.

P.e3’~s

Mr.

Merlin Karlock

WASTE MANAGEMENT OF ILLINOIS,

INC.

v.

KANKAKEE COUNTY BOARD

May

11,

2005

‘

.

.

-

PageNo.3

-

Alternatively,

in the unlikely event that

anyone

attempts

to

argue that the County

Board’s

previous

decision

is

not final

and

can

still

be,

somehow,

altered,

then

the

previous prohibition

on ex

parté

contact between

Waste

Management

and

the

County

Board

would

seem

to

remain

in

affect.

Mr.

Wilt’s

letter and

the

discussions

which.

undoubtedly, preceded it and

may follow it,

represent the worst and most

prohibited kind

of ax parté

contacts.

-

.

-

-

While

Waste

Management

refers

to

its

-

contemplated

action

as

a

‘settlement”

what

is

really

being asked

is

that the

County

Board abandon

its

previous

decision

and

the

public which

has

a

right

to

rely

on

the

finality

of

the

same.

In

response

to

our

previous Petition to

Intervene

in

the Pollution Control

Board appeal (intervention

desired

in

significant

part

to

guard

against

this type of

collusion

and

chicanery)

the

Pollution

Control

Board

has

taken

the

position

that

§40.1

of

the

Environmental

Protection

Act

does not allow objectors to

intervene

in

an

unsuccessful

siting

apphcant’s appeal.

The

reason

expressed

by

the

Pollution

Control

Board

is

that

local

decision

maker,

in

defending its

decision,

will safeguard the interest of the public generally and of objectors

at

the

local

siting

hearing,

specifically.

This

is

also

the

position

taken

by the

County

Board in objecting

to oUr previous attempt at intervention.

The Pollution

Control Board’s

decision

denying our

previous Petition to

Intervene is now on appeal in the Third District

Appellate Court.

Kankakee County’s attorneys have consistently

taken

the position that

they

will,

in fact, zealously

defend the

denial

of siting.

-

Similarly,

the

Pollution

Control

Board,

in

its

Brief

to

the

Appellate

Court,

has

argued

that the

interests

of

the

public

generally and objectors specifically will be well-represented by Karikakee

County.

Accordingly,

I

believe

that

the

County1s

obligation

to

-

defend

its

siting

decision

rises

to

the

level

of a fiduciary

obligation

and

that

its

refusal

to

do

so would

justify

a

lawsuit for breach of that fiduciary

duty.

Moreover,

the

fact

of the County

abandoning its

previous decision and

breaching

its duty to the public would, of course,

be made

known

to

the

Appellate

Court

and

provide

the

very

proof

we

needed

that

we

should

have

previously

been

allowed

to

intervene.

If the Appellate

Court,

or the Illinois

Supreme

Court

on further appeal,

finds that we

should

have

been allowed to

intervene,

that

will

send

the

entire

Pollution

Control

Board

appeal

back

to

square

one

and

it

will

also

represent

a

new

precedent

in

Illinois

that

elected

officials

cannot

be

counted

on

or

-

trusted

to

protect the interest opuc

even

to

act

consistently

with

their

own

-

previous final decisions.

Mr. WiIt~Mr.

Helsten and

I, as

attarneys,

will undoubted~y

profit

by

all

of

this while

the

County

Board

remains,

for

years,

in a

legal

limbo

where

the

-

integrity ofCounty

Board

Members is litigated and argued in

multiple

Courts.

Aside

from

the

legal

cons~equences,

I

am

certain

‘that there

would

be

political

consequences and’ fallout from the

County

Board

acquiescing

to

Waste

Management’s

L~wOffiwof

GEORGE

MUELLER,

P.C.

501

State Sevr3et

O’ttaw~t,it.

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1E:02

-

HOFFM~N; MUELLER;

CREEDON

P.~4/O6

Mr. Merlin Karlock

WASTE MANAGEMENT OF ILLINOIS, INC.

v.

KANKAKEE

COUNTY

BOARD

May

11,

2005

Page

No. 4

-

last desperate attempt to

salvage their landfill expansion.

The Pollution

Control

Board

and

the

Courts

will obviously

not allow

sri action that completely shuts out the pubUc,

nor would .the voters stand for such

heavy-handed

arrogance.

If

the County

Board had

originally

granted

siting

approval,

we,

as

well

as

other

objectors,

would

have

been

allowed to appeal that approval to

the Pollution

Control Board and then,

if

necessary,

to

the Appellate

Court..

Waste

Management’s contemplated

action

is

an

attempt to

gain

siting approval,

while preventing legitimate

participants from

being able to

appeal.

This

action

will fail at every level.

-

Lastly,

1

hope that the County Board would

understand that

they

are

at little

risk

if

the current

Pollution

Control

Board

appeal

is

concluded.

Waste

Management’s

first

attempt

at siting

approval,

even though granted by the

County

Board,

failed

at

both

the

Pollution

Control

Board

and

the

Appellate

Court.

On

its

second

-

attempt,

Waste

Management

failed

because

new

and

additional

evidence

showed

that

they failed

to

meet

three

of

the

nine -siting

criteria.

In

that

second

hearing,

there

were

serious

questions

raised

about

the

qualifications

and

veracity

of

Waste

Management’s

real

estate

expert.

It

is

clear

that

the

County

Board

found

her

testimony

not

to

be

compelling,

I

might

add

that

based

upon those

concerns,

neither

Waste

Management

nor anyone else

in the industry

has

used

that so-called

expert

in. any other subsequent

siting

case.

In

its

appeal to the Pollution Control

Board,

Waste Management argued that the

County

Board’s

“decision

and

its

denial

of criteria

i,

iii

and

vi

as

fundamentally unfair,

unsupported by the

record and

against the manifest weight of the evidence.”

However,

the

recent

Pollution Control Board

I-tearing, months of exhausting depositions and other

discovery

conducted

by

Waste

Management,

did

-

not

provide

any

evidence

of

unfairness.

-

In

conclusion,

I would hope that

the County

does the nght thing

here and

rejects

Waste

Management’s

desperate

overture.

I

am

also

confident

however,

that

if the

wrong

thing

happens,

neither the Pollution

Control

Board

nor the Courts

will allow the

purpose

and policy behind the statutes governing

landfill siting

to be evaded through ex

parté contacts, collusion

and breach of fiduciary duty.

-

Lwojfiwof

GEORGE

MUELLER,

EC4

501

St~t~

$treet

On~wo,

IL 6L350.3578

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NIINSHAW

&

CULBERTSON

LLP

-

co~4,

ATTORNEYS

AT

LAW

100

Park Avenue

-

May 17, 2005,

-

P.O.

Box 1389

-

Rockford,

IL 61105-1389

Mr. Dennis ‘Wilt

Vice

President

and

General Counsel

815-490-4900

r\4idwest

Group

-

-

815-490-4901

(fax)

Waste Management

www,hjnshawlaw.com

720

B, Butterfield Road

-

-

Lombard, IL

60148

-

Re:

Waste Management ofIllinois,

Inc.

v. County Board of

Kankakee,

Illinois (PCB 04-186)

-

Dear Mr. Wilt:

Thank

you for-your letter ofMay 2, 2005

addressed to me as attorney ofrecord for the County.

I

have

transmitted copies of your letter to Mr.

Kruse,

who in turn disseminated copies to members

ofthe County Board in executive session at its meeting ofMay 10, 2005.

Under

state statue

and

local

rules,

one-third of the Board

members must

request the

Clerk

in

writing to hold a special meeting.

Such a written request has been circulated

and

tendered to the

Clerk, and the Clerk has now set

a special

meeting to considerthis matter at the following time

and date:

Special Meeting

Wednesday, May

25,

2005 at the hour of 10:00

a.m.

Kankakee County Board Room,

4th

Floor

Administration Building

189

B. Court Street

Kankakee, IL

60901

-

-

Mr.

Smith, to~therwith

Uhai~an~se

and~Vice

“C~thià~

~

~

—

request you

to

be in personal attendance at this session, ofthe Board

so that you

can

answer any

questions

the Board

members may have,

as well

as provide

any

requested first-hand elaboration

on the contents ofyour letter.

Please

also

find

enclosed

a

copy

of a partially redacted letter which

has been

sent

to

various

County

Board members (who, in turn,

delivered a copy of the letter to

Mr. Smith).

You

should

be

prepared

to

answer

the

issues

raised

by

this

transmittal,

as

well

as

any

other

questions

-

members ofthe County Board may ask concerning

this

document.

-

Arizona

California

‘Florida

Illinois

Indiana

Minnesota

Missouri

New York

Oregon

Wisconsin

---

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Mr. Dennis Wilt

-

May

17,

2005

-

Page2

I am providing those parties which

are

involyed in one

fashion or another in this pending appeal

-

with

a copy ofthis letter and the enclosure noted above.

In

addition, I am indicating to

those parties that they

should

be present at the time

and

place

of

the

special

meeting of the

County

Board

noted

above to make

any

presentation

that

they may

desire to

make.

Please confirm your attendance

at this meeting.

-

Sincerely,

-

-

T-IJNHAW

&

CIJLBERTSON LLP

‘

-

Direct

815-490-4906

-

-

chelsten@hinshawlaw.com

-

CFH:jml

Enclosure

‘

-

cc:

Karl Kruse

-

Ed Smith

George

Mueller

Jennifer Sackett-Pohlenz

-

Keith Runyon

-

-

Don Moran

-

70151O83~i842014

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MA~1&(3EMENT

OF

IWNOIS,

1NC1,

V.

KANXAK~COUNTY

8OARD

Poflution Control Boacd No. 04-186

.

.

-

-

At

your

request,

I

hale

reviewed

Dent-iie

W~It2s

Letter

or~

behalf

of

Waste

Mariag~ment.

of

Illinois t~C~1!(1~.5~~Z~tQd

.~

M~Y:2j,

20a5,

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a

posbie

We~pp~t

ofthe

.mfer~pc

.P.ol~ufh~rL

Con~.Ua~r~.

~p~4

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-Is

th~n9,b~p

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~harne~es~

attempttu

~v~idi~ie:Jur~sdictiçn

ofti

~oIIution

Cqnt~oIBóard,~ounderr~ilne

the

respor~sibWty

af.the Ktkskee

ounty

Board.to defend it~

previous

rnajonty decision

deriying.th~

siting

request. and

to

a~h!eve..~nrlrnproperand

IIle~eir~corisIdarahonand

repeal of that

previous

decision.

-

-

Paiticu

lady,

I would kka to riddra~

annie

of

the

po~nt?~

raIsed

In Mr. W~t’s

letter.

In

hia

flrzt pnra~raph1he suggests

that

e

~etftement-

pruvides

~

~rnyriad of

benefib~

while

both

partIes

wavold

a

Worst

eaSe

ecenwio.”.

The

will

of

the

Karikakee

County

Board,

as

expres~ecI

in

its

Match

17,

2004,

declsfon

denyhig

the

&tt1n~application

whIch

de~s1on

was

dugy

~r2dlegally

set forth

in

~

Board

resclutjoj-i of the same

date,

was

that

there

should

not

be

an

expansion

of

the

Weste

Man~igenientfacility.

Therefore, the

TMworst case

acenarlo’

from th.

County Boerd~aperspecThle r~

that the

-

—

f~iniIitywill

now--be-hultt

in~

ntravnUonof=the-Roerd’~

p~vinii~y_expssed~pjrjIy~

dedsion.

Since

Mr.

Wilt’s

-

settlement

ptoposal

contemplates

thai

the

facility

wIll

be

constructed~it h~

in

fact the Cauntyas

Worst

case

ecenudo.

-

This .ie

not mit~g~itad

by

the so-c~Hedbenefit of Was(e Management agreefri~

to

all

of

(ha, special

conditions

~ugqsated

in

the. )~eglon~I

Pianning

Commission~sreport.

~incaWaste Mun~gerni~ntdid

notappeal.

from

the

~p?~c1~lconditions that were attached

tothe.County

Boards previous finding ttpat1sitlng .crlt

on-il was

satisfied.-

The.

other so-

called

benefit

piomised

in

Waste

M~nagem~rg’s

settlement

prQposat

is

that

Wa5te

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Mari~gement

will reduce

by

one-third

(1/3), ihe amount

of out-of-County waste

received.

This

~benefit~ s,

of

course,

accompanied

by

a

commensurate

reduction

in

host

fees

-

paid

by Waste

Mahagement1 Jhcludlflg a

one—third

(1/3)

reduction

in the initial fee t~

be

paid.

However, because this reduction

in

intake

volume

will

not

reduce

the

cr’erall

size

of

the

facility,

the

negath’a

impact

on

property

values

arid

the

character

of

the

surrounding

area,

will

not

be

reduced.

The

County board

previously found,

on

March

17,

2004,

that there was

no

need for the

facility,

that the facility is

not located

so

as

to

minimize incompatibility

with

the

character

of

the

surrounding area

and

to

minimize the

effect

cr1 the valUe of

the

surrounding

property

and that

tiw~traffic--patterns tolfrom

the

facility

are

not

designed

to

minimize

the

impact

on

eistirig traffic

slows.

Nothing

in

Waste

Managerrient’s settlement

-proposal addresses

these-deficiencies.

-

Mr.

WiltIs

letter

er(oneously

states

that.

s1~iceKankakee

County

and

Waste

Management are the only

parties

in

the

pending

Pq~iu~ion

Control Board case,

they can,

like

the

parties

in

any

other

litigation.

settle

their

dispute.

This

Is

a

complete

misstatement of the facts and

the

law.

At

the

initial

siting

hearing,

$~ankakeeCounty

wa~inot a

party,

but rather was tha decle~on

maker,

Waste

Management has appealed

from

Kankakee County’s

lawful

deiision.

Settlement

at

this

time

is,

therefore,

riot like

two

titi~ants

in

an

dithnary

lawauit

deciding to

settle

their thspixte,

but

rather

is

like

a

litigant

who

has

appealed

a

Trial

JudQe’s

decIsion~cohvincing

that

Trial

Judge

to

change

that

decislori

while

the appeal

is

pending.

The law

is

well-settled

that

a

Trial

Judge loses jurisdiction

of a

case,

onca

it

has been ~ppe~led by

an

unhappy

hti~ant

to

the next

level.

The fact that

Karikakee

County is now

a ~party” within the

msan1n~of

that

Lern’i

iii

the

Pollution

Control Board

appeal

does

not ohange the County’s previous

status

as

the decision

maker and

reflects the public policy that the County now has an

obligation to defend

its

decision on

behalf of all of those

who opposed the

original

siting

application.

-

-

Frankly,

I

believe

that in

this

context

the County

Board

and

Waste

Maflagement

are legally

and ethIcally prohibited from settling

the

matter at this time.

Settling the case

Is,

effectively

an ille~a~

backdoor repea~

of

the

March

17.

2004.

resolutIon

denying

the

siting

2ppllc~tion.

You

will

recall

that

there

were

previously

serious

doubts

raIsed

(iricIudin~

by the State’s AttorflE~y

himsefl)

regarding whether or riot the County

Board

-

~

-

~

-

~

may

have

had

to

rex,nsider

would

have

tzeen

Irrevocably

lost,

once

thirty

days

had

elapsed

and

the

matter

had

been

appealed

to

the

Po!i~tlon

Control

Board.

In

legal

terms,

the majority

decision of

March

17,

2004,

Is

noW,

and

has for a

long

tIme,

been

iinaI.~

Waste

Management’s

proposal

represents

nothing

more

than

a

clumsy

and

thinly-veiled attempt

to

get around

thatllriallty,

art

attempt that will expand the

existing

IiligatIon, exporientl~lIy.

coo

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Alternatively, in

the

unlikely event that anyone

attempts

to

argue that The County

Board’s

previous

dec1slon

Is.

not

final

and

can

still

be,

somehow,

altered,

then

the

previoUs

prohibition

on e~part~

contact botween

Waste

Management

and

the County

Board

would

seem

to

remain

in

~it’tect

Mr.

Wilt’s

letter

and

the

discussions

which.

undoubtedly,

preceded

it and may

follow

It.

represent the worst and most prohibited kind

of ex parté

contacts.

-

—

White

Waste

Managemenl

refers

to

Its

contemplated

action as

a

~eflJement”

what is

realty

being asked

~

that

‘the

CoUnty Board abandon

its

previous decision

and

the

public which

has

a

right

to

rely

on the finality

of

the

same.1

In

response

to

our

previouS

Petition

to

Intervene

in

the Pollution

Control Beard appeal

(intervention desired

in

significant

part- to

guard

against

this

type of collusion

arid

chicanery)

the

Pollution

-

Corttrol

Board

has taken

the

position that §40.1 ~cfthe

Environmental

Protection

Act

does

i-iot allow objectors

to

Intervene

in an

upsuccessfusting

applicant’s appeal.

The

reason

expressed

by

the

Pollution

Control

BôdnI is

that

local

deciston

maker,

in

defending

its

decision.

Will

safeguard the

in1ere~t

of

the public generally and

of objectors

at

the

local

siting

hearing,

specifically.

ThIs

Is also

the

position taken

by

the County

Board -in

objecting

to our previous

attempt

at intervention.

The Pollution Control Board’s

decision

denying our-prevIous Petitlori to Intervene

Is now on

-appo~)

in

the

Third District

Appellate

CoUrt

Kankakee County’s attorneys have consistently taken the position that

they will,

in fact, zealously

defend the

denial

of sIting.

Similarly,

the Pollution

Control

~oard.

in

if~Brief to

the Appellate

Court,

h~s

argued

that the

interests

at

the

public

generally and objectors speolficaHy wHl be welt-represented by Kankekee County.

Accordingly,

I

believe that the

County’s

obligation to

defend

its

siting

decjsjo~

nisas

to the

level of

a

fiduciary

obligation and that

Its

refusal

to do

so

would justify a

lawsuit for breach of that fiduciary duty,

Moreover, the fact of the County abandoning Its

-

previous decls~on

arid breaching its

duty

to

the public Would, of

course,

be made known

to

the

Appellate

Court

and

provide

the

very

proof

we

needed

that

we

should

have

previously

been

allowed

to

iritewene.

If the

Appellate Court.

or- the Illinois

Supreme

Court

on lUrther

appeal, tinds that we should

have

been allowed

to

intervene,

that

will

send

the

entire

Pollution

Control

Board

appeal

back

to

square

one a~dIt

will

also

represent

a

new

precedent

In

Illinois

((is! elected

officials

cannot

be ~oonted

on

or

-

---

-

-

to

~ect~th.e

Ant~r~t

~

the pubik or even

to

act

consistently

with

their -own

previous

final decisions.

f.

r

r,

e s

i-as-~tt~rfl-wtH~undoubtedIypr~,

by

all of

this

while

the County

Ucard

ramriin;

for

years,

in

a

legal

limbo where

the

-

integrity of

County Board Mem2ers

is litigated and argued in multiple Courts.

-

Aside

from

the

Ie~gaicorts9qL~rices,I

am

certain

that

there would

be

political

conse~uenc~a

and fallout

from

the County

Board

acquiescing

to Waste M~inagement’s

XVd

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WASTE

MAi’JAGETVlENT

!LLINO~S

tflAflKET

~AREA

-

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400

~

(,r,~’e.

IL 60515

May

19, 2005

-

(650) 7~4-S400

-

6~0)

~4

-1597

F~

Dear Kankakee County Board Member,

We

have

been advised that

attorney Chuck Helsten

has provided you with Waste

Management

of Illinois, Inc.’s offer to settle

the

legal

matter

between

Kankakee County and

our Company that

soon will be decided by the

Illinois Pollution

Control

Board.

The proposal is a very reasonable

way to resolve

this issue and in

a manner that benefits

both the County and Waste

Management.

Most important,

it makes important concessions on the key concerns voiced by

some

Board

members.

-

Under the proposal, the host agreement between Waste Management

and the

County would

be

revised,

and the Company will:

•

Agree to all 85 conditions

requested by the Kankakee County Regional

Planning

Commission when it recommended that the County

approve the landfill expansion early

last year.

Among them was the construction of a

double composite liner to ensure

groundwater protection.

•

Reduce by

33 percent out-of-county waste accepted by the facility, limiting

it

to 667,00

tons a year.

•

Lower

by 33 percent, to approximately $1,167,000, the one-time expansion fee to

be

paid the County and

also lower by 33 percent the minimum guaranteed host

fee.

The per-ton host fee will remain unchanged.

-

•

Add a 10-cents-per-ton fee to

create an environmental alternate technology fund

-

for the County to

be used at its discretion.

•

Provide five

acres adjacent to the landfill for the development of environmental

technologies.

-

Most important,

such a settlement will provide

the County with

disposal capacity for

its residents

and industry for more than

30 years and significantly lessen perceived traffic concerns.

Assuming the facility accepts

approximately 650,000 tons of waste a year, the County would

-

-

re~e-hfeesexeee~di-ng-$2~5=mnflhien-per-year.

This settlefiient-wlll-en

ha-t-the~Cou-nty-------

-~

provides its residents with a safe, well-designed

disposal facility on beneficial

envirOnmental and

financial terms.

-

The settlement offer will endthe costly legal challenges by both the County and Company that

could

continue even beyond

a Pollution

Control Board

decision and remove

the possibility

of an

unsatisfactory

outcome for the County

or Company.

It also offers the County

a legal

mechanism for approval of the

expansion that is

consistent with the County’s Solid Waste

Management

Plan.

We feel strongly that this is a positive development for both

parties

in that

it

provides environmental and

community benefits

to the County and

a satisfactory outcome for

our Company.

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Please find attached

more detailed

information and

background on the Waste Management

settlement proposal to the County.

We plan to contact you

in the next few days to

respond to

any questions you

may have about

it. We believe the

proposal is a positive way for Kankakee

County- and

Waste Management to resolve this matter, and we are

looking forward to discussing

-

it with you.

Ifyou have

questions, please feel free to call Lee Addleman at (630) 816-9732 or

Dale Hoekstra at (630) 334-7820.

Sincerely,

Lee Addleman & Dale Hoekstra