BEFORE THE ILLINOIS POLLUTION CONTROL BOA
JERK’S O1~JCE
LANDFILL
33, LTD.,
)
JAN
1 7
2003
STATE
OF
ILLLNOIS
Petitioner,
)
Pollution Control
Board
)
v.
)
PCB No.
03-43
)
EFFNGHAM
COUNTY BOARD and
)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
STOCK & COMPANY, LLC,
)
)
Petitioner,
)
)
v.
)
PCB No.
03-52
)
EFFINGHAM COUNTY BOARD and
)
SUTTER SANITATION SERVICES,
)
)
RESPONDENT
SUTTER SANITATION SERVICE, INC’S
RESPONSE BRIEF
NOW COMES Respondent, SUTTER SANITATION SERVICE, iNC., by and through
its
attorneys, Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Charles J.
Northrup and David
A.
Rolf, ofcounsel, and pursuant to the December
19,
2002 Order ofthe Hearing Officer in this
matter hereby submits its Response Brief.
I.
INTRODUCTION
This matter went to hearing before a hearing officer ofthe Pollution Control Board
(“PCB”) on December 19, 2002.
At the conclusion ofthe hearing the PCB Hearing Officer
ordered simultaneous initial briefs to be
filed on January
10,
2003.
All parties filed suchbriefs.
Many ofthe issues raised by Petitioners in their briefs were addressed in Sutter Sanitation
Service, Inc.’s (“Sutter”) Initial Post-Hearing Brief.
As noted below, those issues and arguments
1
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will not be revisited in
this Response Brief.
Accordingly, this Response Brief may not
specifically address all issues raised by Petitioners.
II.
ARGUMENT
A.
Jurisdiction
As an initial matter, Petitoner Landfill 33
raises an issue contesting
the Effingham
County Board’s jurisdiction to have heard this matter.
Section 39.2(d) of the Illinois
Environmental Protection Act (“Act”) requires that “no
later than 14 days prior to
such hearing
the
hearing before the local siting authority
notice shall be published.
.
.
and delivered by
certifiedp~gjj,
to all members ofthe General Assembly from the district in which the proposed
site is located.
.
.“
(Emphasis added.) 415 ILCS
5/39.2(d)
(West 2002).
The record irrefutably
demonstrates
that Senator Duane N. Noland received notice of the hearing by personal service
14
days prior to
the hearing (C.
352).~
Petitioner Landfill 33 nevertheless asserts that the Effingham
County Board
lacked jurisdiction to
grant local siting approval to Sutter because Sutter failed to
comply with statutory notice requirements.
In short, Petitioner Landfill 33
argues that the timely
notice ofhearing the Senator received by personal service is either insufficient orprohibited
under the Act, because §39.2(d) only allows
service by certified mail.
The Board must decided,
therefore,
whether §39.2(d) prohibits notice ofhearing by personal service.
This is not the
first time this Board has been presented with a “form over substance”
argument relating
to methods ofservice under this section ofthe Act.
In Environmentally
Concerned Citizens Organization v. Landfill L.L.C, PCB 98-98, 1998 Ill. Env.
Lexis
195
(May
The record also reveals that even though Respondents
sent out notice of the hearings by certified mail on
July 26, 2002, Senator Noland did not receive his notice by certified mail until August
1, 2002.
© 345)(See also
Petitioners’
_______
at 4)(acknowledging that Senator Noland received notice ofhearing by personal service
on
July 31, 2002, and by certified mail on August
1, 2002).
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7,
1998), the Board was asked to determine whether “certified mail” could~beused to perfect
notice under §39.2(b), even though the plain statutory language ofthe Act expressly required that
service be “in person or by registered mail.”
IcL, Ill. Env. Lexis
195,
at *8.9.
The petitioner in
that case, not unlike the Petitioner in this case, argued “the legislature ‘commanded’ that notice
be given by either personal service or registered mail and made no allowance for any substitute.”
j~.at *9~The Board responded, however, that it “could not
ascertain any, substantive difference
in the functions
provided by registered and certified mail except that registered mail is insured.
Id. at *12.
The Board also noted that Illinois appellate courts have found in various factual
settings that certified mail will serve the purpose of registered mail.
~4.
at *13.
The Board
concluded by finding that certified mail met thejurisdictional notice requirements under the Act.
Id. at *13
The Board’s reasoning in Environmentally Concerned Citizens Organization is analogous
to the reasoning usedby the Illinois Supreme Court in Johnson v. Pautler, 22 Ill.2d 299,
174
N.E.2d
675
(1961).
InJohnson,
the Illinois Supreme Court was asked to
address whether
personal service was acceptable under the Election Code, even though the plain language ofthe
statute expressly stated that the petition and complaint “shall be delivered by mail.”
Johnson, 22
Ill.2d at 302,174 N.E.2d at 677.
The Court, while debating whether the method ofservice in the
statute was “mandatory” or “directory”, explained that “personal
service has uniformly been
regarded by courts of all jurisdictions as the best and most satisfactory service.
Johnson, 22
Ill.2d
at 304,174 N.E.2d at 678.
The Court concluded,
therefore, that personal service answered
the
legislative intent that the clerk receive notice because even though it was essential that the
county clerk be notified of the pendency of an election contest proceeding,
it was not essential
that the clerk receive such notice by mail.
Johnson, 22 Ill.2d at 303,174 N.E.2d at 677.
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In summary, Petitioner asks this
Board to ignore reality
and pretend that Senator Noland
did not actually receive timely notice ofthe hearing because he had been served with the notice
personally.
Despite Petitioners’
assertions to the contrary2, the clear intent ofthe statute is to
ensure that members ofthe General Assembly are provided with notice
14 days prior to hearing~
The record irrefutably demonstrates that Senator Noland had been provided with notice
14 days
prior to the hearing using “the best and most satisfactory service” available.
There is no basis in
fact or law, therefore, to find that the Effingham County Board lacked jurisdiction to grant local
siting approval pursuant to
§39.2 ofthe Environmental
Protection Act because SenatorNoland
received notice by being personally served, because Respondents are not precluded from
providing notice by personal service by statute.
C.f. Johnson,
22 Ill.2d at 304,
174 N.E.2d at 678
(citing Ziffv. Sandra Frocks, Inc.,
333 Ill.App. 353 to note that even though the plaintiffin that
case had notified defendant by registered mail, a mode ofservice not provided for in the statute,
the “statute does not purport to restrict the making of a demand or the service ofnotice to the
particular method stated in the statute”).
In addition to the above argument that notice was appropriate, a precise calculation of the
14 day notice requirement reveals that it has in fact been met in this case.
Assuming that
the certified mail was delivered to
Senator Noland no later than 5:00 p.m. on August
1st,
the
14th
day (calculated as a 24 hour period) began at 5:01
on August
14th
The hearing, scheduled
for 6:30 p.m.
was therefore on the
14th
day from 5:00 p.m.
on August
1st.
Receipt of the certified
mail before 5:00 p.m.
on the August
1st
was therefore l4days prior to the day of the hearing.
2
Petitioner asserts, without citation to
any legislative history or case law, that the clear
“legislative intent is to avoid the necessity of probing into the bond fides ofpurported claims of
service being made by agents and employees of siting participants” (Petitioners’
______
at 4).
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Accordingly, Senator Nolan did in fact receive the certified mailing ofnotice
14 days prior to the
hearing.
B.
Fundamental Fairness
1.
Recycling Issues
As
anticipated, both Petitioners raised the purported influence ofSutter’s
existing
recycling operation on the deliberations of the Effingham County Board.
As noted in
Sutter’s
Initial Post-Hearing Brief, to
demonstrate such fundamental unfairness, the Petitioners must
establish that a
decision maker
has prejudged the facts
and law.
Waste Management of Illinois
v.
Pollution Control Board,
175 Ill.App.3d 1023,
125 Ill.Dec.524 (2” Dist.
1988).
Neither
Petitioner argues this point, but rather simply comments on the (unsubstantiated) “threats” by
Sutter to cease its
recycling operation and the comments by a citizen and non-decision maker,
Nancy Deters.
Not a scintilla ofevidence was presented, or even alleged by Petitioners, that
somehow issues ofrecycling resulted in any Effingham County Board Member having prejudged
the law or facts ofthis
case.
These arguments are fully addressed in
Sutter’s Initial Post-Hearing
Briefand will not be repeated here.
Petitioner Stock further attempts to argue that somehow the Effingham County Board
was “confused” as to what its purpose was, namely to review the Application in light of the nine
statutory criteria.
However, no evidence of such confusion is presented.
Petitioner Stock
merely recites the comment ofone Effmgham County Board Member as to what issues might be
submitted
to the County during the public comment period and (again) the comments ofthe
non-decision maker Nancy Deters.
Nowhere in the record has Petitioner Stock pointed to any
evidence that issues other than the nine statutory criteria were given any weight by the
Effingham County Board.
Nowhere in the record is it reflected that there was “confusion” about
5
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what issues were before the Effingham County Board or what could properly be considered.
Conversely, the record is replete with statements, cited in Sutter’s Initial Post-Hearing Brief,
by
Chairman Gobczynski
and States Attorney Deters, that the County Board’s decision was to be
limited solely to a review ofthe nine statutory criteria.
In light ofthis evidehce, there was clearly
no confusion on the part of the Effingham
County Board.
Petitioner Landfill 33 raises the issue that it was somehow prevented from presenting
testimony on the recycling issue (33 Brf.
5).
This argument is not supportable.
Again, as noted
in Sutter’s Initial Post-Hearing Brief, when issues of recycling were presented, primarily through
the response to questions, Effingham County Board Chairman Gobczynski admonished the
Board that such issues were not to be considered in the Board’s deliberations.
These
admonishments were expressly accepted by Petitioner Landfill 33
as satisfactory, and Petitioner
Landfill 33 chose not to pursue the recycling issue.
Indeed, had Petitioner Landfill 33 wanted to
make a record on any issue with respect to recycling, it could have made an offer ofproofor
submitted such information via a public comment.
It
chose
not to do
so, and as reflected in
Sutter’s Initial Post-Hearing Brief, it has waived the issue.
2.
Purported Visits
to
the Facility by County Board Members
Both Petitioner Landfill 33
and Petitioner Stock take issue with a purported visit/tour to
the location of the proposed facility by certain Effingham County Board Members.
Both
Petitioner’s seriously misrepresent the facts ofthis “visit/tour.”
Petitioners cite the same two references
in the record ofa purported site visit/tour.
First,
there is a notation in the minutes ofthe
April,
2002
County Board proceedings which indicate
that
a tour was scheduled for July 31, 2002 (C 108-109).
Second, there is testimony from Tracey
Sutter that the waste committee (or certain members ofit) had come to the site ofthe proposed
6
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transfer station.
Based upon these references, Petitioners claim the proceedings were
fundamentally unfair.
As noted, Petitioners seriously misrepresent these references.
During the pendency ofthe Application the Effingham County Board (or the waste
committee) did not visit/tour the proposed waste transfer facility.
First, the notation in the
Effingham County Board minutes
is nothing more than that a proposed site visit had been
scheduled
by the County.
Other than this notation, there is no evidence in the record, presented
by any party, including Petitioners, that this proposed visit/tour ever occurred.
Despite the
absence ofany evidence in the record ofa July 31, 2002 visit/tour, Petitioner Landfill 33 makes
the bold pronouncement that “the County Board visited the transfer station
on Wednesday, July
31,
at
6;30 p.m.
(33 Brf 6).
Not only did this visit not take place, but there is simply no evidence
to support that it did.
Petitioner Stock at least acknowledges that there is no evidence ofsuch a
visit/tour taking place, but argues
that there is no evidence that it didn’t take place (Stock Brf.
38).
To the contrary, and as discussed below,
evidence does exist that no site visit occurred
during the pendency ofthe Application.
More importantly, Petitioner Stock
cannot simply raise
an allegation
and then argue it is true because Sutter
and Effingham County have not disproved
it.
The burden lies with Petitioner Stock to
show that the purported visit/tour took place.
It has
not done so.
For these reasons alone, Petitioner Stock’s fanciful arguments on this point must
fail.
Second, the record does reflect a visit by members ofthe waste committee to the site of
the proposed transfer
station.
However, when the record is read as a whole, it is clear that the
visit was to
Sutter’s redycling operation (which does occur at the same site as the proposed
transfer facility) and that,
in any event,
it occurred prior to the Application even being filed with
Effingham County.
In his
testimony, cited by Petitioners, Mr. Sutter makes it clear that
7
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niembers of the waste committee visited the site to see
Sutter’s
recycling
operation
(C.
191).
The fact that this visit occurred before the Application was even filed is further supported by Mr.
Sutter’s testimony, made during an offer ofproofpresented by Petitioner Landfill 33, wherein
the following exchange took place between Tracey Sutter and the attorney ‘for Petitioner Landfill
33:
“Q.
So if I understand you correctly, even though the county board chairman
set a
date for the county board to tour your facility, you don’t know anything about
that; is
that correct?
A.
Not ofthat
date right there July
31, 2002.
Q.
What date do you know about?
A.
The date that would have been prior to my proposed application ofApril
1
9th~
Q.
Okay.
A.
That’s when the waste committee was there in regards to the recycling facility.
(Hrg tr.
73-74).
Further, even the absence ofquestions or commentary from the County Board Members
such as “when we were at the facility we saw X, Y or
Z”
is instructive.
No such questions
or commentary exists.
In fact, it is clear from the questions ofthe County Board that they were
not familiar with the facility in any way.
The visit/tour by members ofthe waste committee to
review the recycling operation, which predated the submission ofthe Application,
is not
prohibited by PCB precedent nor, in any event, has the fact of such a visit demonstrated
any
prejudice to
the Petitioners.
Accordingly, Petitioners’
claims must fail.
3.
Familial Relationships
Petitioner Stock, as anticipated, raised the issue of
potential
bias due to non disclosure of
certain familial relationships (Stock Brf.
36).
This
issue, including waiver arguments,
was fully
8
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• addressed in Sutter’s Initial Post-Hearing Brief and those arguments will not be repeated here.
Again, however, Petitioner Stock has presented no evidence to meet its burden that any
Effingham County Board Member had prejudged the facts or law in advance ofthe hearing.
Petitioner Stock does raise a new issue in this regard.
In its Petition,
Stock only alleged
the potential bias stemming from the relationship between Duanne Stock and his cousin
Effingham County Board Member Karen Willenburg.
In its Brief, PetitionerStock now raises
the issue of the relationship between Effingham County
State’s Attorney Ed Deters and public
commentator Nancy Deters (Stock Brf.
36).
Indeed, State’s Attorney Ed Deters is the son of
Nancy Deters.
Notwithstanding
the fact ofthis relationship, Petitioner Stock can not meet its
burden on demonstrating bias on the part ofa
decision maker.
As an initial matter, any
argument with respect to
any fundamental unfairness because of
the familial relationship between States Attorney Deters and public commentator Nancy Deters
has been waived by failing to raise it at the Effingham
County Board hearing.
The legal
authority for this argument has been previously set out in Sutter’s Initial Post-Hearing Briefwith
respect to the familial relationship between Stock and Board Member Willenburg.
Second, the
standard necessary to show bias
is that the decision maker had somehow adjudged the facts and
law prior to the hearing.
Waste Management,
125 Ill.Dec. at 538.
Petitioner Stock presents no
evidence or allegation that any
decision maker,
i.e. an
Effingham County Board Member, had
somehow prejudged the law and facts ofthis caseprior to
the hearing.
Third, allegations ofbias
stemming from the participation ofa States Attorney have been routinely rejected by the Board.
Tate et al.
v.
Macon County Board et al., PCB No.
88-126, p.
8 (December
15,
1988).
Fourth,
the innuendo that
somehow State’s Attorney Deters and his mother were conspiring to have the
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Effingham County Board approve the Application without
thorough and
appropriate
consideration was dispelled
during the following colloquy at the PCB hearing:
“Q.
And its fair to say that you and I
-
-
I have never indicated to
you that I
shared your views in this case
-
-
A.
Oh, please.
Q.
-
-
at all; is that correct?
A.
You don’t share my views about anything.
Rarely.
(PCB
tr.
37).
In light of the above arguments, any claim that the relationship between State’s Attorney Deters
and public
commentator Nancy Deters
somehow prejudiced the Petitioners must be rejected.
There has been no evidence ofany bias on the part ofany decision maker, and no prejudicethas
been shown by Petitioner Stock.
4.
Unavailability ofthe Transcript
Petitioner Stock, as anticipated, raised the issue ofthe unavailability ofa transcript ofthe
Effingham County Board hearing.
Here too this issue was filly briefed in Sutter’s Initial Post-
Hearing Brief.
As
noted in the Initial Post-Hearing Brief, no prejudice has been shown by
Petitioner Stock in not having a copy ofthe transcript when it was requested which was
16 days
after Effingham County had made its decision and
18 days
afterthe close ofpublic comment.
Petitioner Stock seeks
to make new law by arguing that its failure to have a copy ofthe transcript
prior to the appeal deadline somehow rendered the proceedings unfair (Stock Brf. 31).
A simple
review ofPetitioner Stock’s Petition demonstrates that this is not the case.
Petitioner
Stock’s
Petition was a complete, valid and represented an
appropriate framing ofthe issues on appeal
before the PCB. The failure ofPetitioner Stock to obtain
a copy of the transcript has had no
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effect on its ability to preserve or adequately pursue its appellate rights.
In this regard, it should
also be considered by the PCB that well before the close of the appeal period, Petitioner Stock
was advised it could obtain a copy of the transcript from Sutter’s
attorneys.
Notwithstanding this
advise, and while represented by counsel, Petitioner Stock chose not to even contact
Sutter’s
attorneys to obtain a copy.
This
failure, perhaps part of a conscious litigation strategy, should
not be rewarded by the PCB.
C.
Statutory Criteria
As
set out fully in Sutter’s Initial Post-Hearing Brief, when reviewing a local siting
authority’s decision on the nine statutory criteria, the PCB must
determine whether the local
siting decision is against the manifest weight ofthe evidence.
E.g. American Bottom
Conservancy et al.
v.
Village ofFairmont City et al., PCB No.
01-159 (October
18,
2001).
Underthis standard, a reversal is not warranted ifthe local siting authority gave greater weight to
some but not other, or even conflicting evidence.
Id.
Indeed this is an
important rule in that
much ofthe discussion ofthe nine statutory criteria is a “battle of the experts.”
Nevertheless, the
PCB is guided by the principle that to find
a local siting authority made a decision against the
manifest weight of the evidence, the opposite ofthat decision must be clearly evident, plain or
indisputable from a review of the evidence.
Id.
1.
Criterion
1
Both Petitioner’s attack the findings ofthe Effingham County Board on the “need”
criteria.
These issues were extensively addressed in Sutter’s Initial Post-Hearing Briefand will
not be reiterated here.
Petitioners
raise no new information on this criteria.
In this regard,
the need criteria was clearly met by evidence and testimony ofthe rapidly diminishing capacity
ofEffingham County area landfills and the economic viability of the proposed waste transfer
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station.
In light ofthis evidence, the Effingham County Board’s decision is
clearly
not against the manifest weight ofthe evidence.
2.
Criterion 2 and
5
Both Petitioners contest the Effinghàm County Boards determination that criteria 2 and
5
were satisfied.
These criteria generally address whether the proposed facility will adequately
protect the public health and safety (Criterion 2) and whether the proposed plan of operations
will minimize the danger to
the surrounding area from fire, spills or other operational accidents
(Criterion
5).
Specifically, the Petitioners raise questions concerning a number ofaspects ofthe
proposed facility that might implicate the possibility ofsome sort ofa problem or concern.
However, the discussion ofthese issues
is not whether or not the Petitioners are crafty enough to
pose hypothetical problems or the possibility
ofsome occurrence happening’at the facility.
The
issue
is also not whether Sutter can guarantee that no accidents or problems will occur at the
facility.
Clutts v.
Beasley,
185 Ill.App.3d 543,
541
N.E.2d 844
(5th
Dist.
1989).
The simple
question is whether or not
evidence or testimony exists that
supports the Effingham County
Board’s decision that any such problems will be minimized and that the public is protected.
The
answer to
this question is clearly yes.
The Petitioners seek to raise any many potential concerns as possible in an attempt to
identify an issue that may not have been specifically addressed by Sutter or the Effingham
County Board.
In such a case, the Petitioners canthen say the Effingham County Board
overlooked an issue ofpotential concern.
Such an attempt must fail.
In this case, Sutter
produced witnesses an
expert testimony indicating that each of the nine statutory criteria had
been satisfied.
The simple fact that Petitioners may have produced competing experts is simply
not enough to
meet their burden..
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Nevertheless, Sutter will briefly address the points raised by the Petitioner’s as grounds
for reversing the Effingham County Board’s decision.
First, both Petitioners contend that siting is inappropriate because ofthe presence ofa
house on the site of the proposed waste transfer station.
As
the evidence shows, and as was
demonstrated to the Effingham County Board, this is a non issue.
As required by the Illinois
Environmental Protection Act,
no transfer station can be established within 1000 feet of a
“dwelling.” 415 ILCS 5/22.14.
Sutter fully acknowledged that there is a house on the site (C.
147).
Sutter also fully acknowledged that this
house is going to
be used as an office for the
facility, not a house where someone will live (Id.).
In granting the proposed siting, the
Effingham County Board necessarily judged this
to be
a credible statement.
The Petitioner’s
seek to persuade the PCB that somehow this statement is not true.
However, they have presented
no evidence to
the contrary, nor can they.
In addition,
as an
office for the facility, the house is
not a “dwelling” and therefore
does not fall within the prohibitions ofSection 22.14
ofthe Act.
People v.
Bonner, 221
Ill.App.3d 887,
164 Ill.Dec.
502
(1st
Dist.
1991).
Both Petitioners also raise the specter of a home across the street from the proposed
transfer
station thus precluding ultimate approval by the Illinois EPA (Stock Brf.
19, ftnte 6;
Landfill 33
Brf.
14).
First,
no evidence ofthe existence ofthis “home” is
in the record. In fact,
no home has been across the street from the proposed siting location for several years (PCB tr.
49).
Just recently, however, Petitioner Stock moved a mobile home onto the property in
an effort
to defeat required Illinois EPA approval.
Such a back door, and belated, attempt
to
undue the
decision of the Effingham
County Board will not succeed under Section 22.14(b) ofthe Act.
More importantly,
it is not an issue properly before the PCB.
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Second, Petitioner’s raise concerns with the thickness ofthe concrete floor and potential
cracking.
The thickness ofthe floor was addressed in Sutter’s public comment (this particular
agruement was addressed in more detail in Sutter’s
Initial Post-Hearing Brief)
(C.
387).
Also,
the issue of cracks was addressed during the hearing when it was made clear that any cracks
would be promptly sealed (C.
268-269).
Third, Petitioner’s raise an issue with respect to the
ability of the existing buildings to accommodate the waste trucks.
Here too, this issue was given
a full airing by the Effingham County Board,
discussed,
and Mr. Sutter testified that the existing
buildings do indeed provide adequate clearance (C.
263
-
265).
Fourth,
an issue was raised with
respect to the wooden construction ofthe buildings.
However, it was also made clear that these
structures are not solely wooden but are made of steel as well (C.
265).
In addition, expert
testimony
exists as to
the development of a continegncy plan in the event of fire (C.
158
-159).
Fifth,
an
issue of staffing was raised.
Here too the issue ofappropriate staffing was addressed
by Mr.
Sutter during the hearing (C.
264-265).
Sixth, leachate was raised as an issue.
Again,
this issue was addressed
in the Application itself
as well as the expert testimony from Sutter (C.
149 -152, 154).
Seventh, the issue ofdanger from fire was also adressed and discussed (C.
158
-
159).
Finally, issues were raised concerning traffic to
and from the facility.
Here too, Sutter’s
experts prepared a traffic impact study and ultimately opined that the proposed transfer station
will minimize impact on existing traffic flow (C.
176).
In all these instances, evidence was
introduced that demonstrated compliance with the criteria at
issue.
In light of this evidence, it
was not against the manifest weight ofthe evidence for the Effingham County Board to perhaps
weigh the testimony of Sutter and its
experts greater than that ofthe Petitioners and find the
criteria satisfied.
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3.
Criterion 3
Petitioner Stock contests Effingham County Board’s finding with respect to
criterion
three.
The sole basis ofPetitioner’s argument is that Sutter failed to provide any evidence that
the proposed facility will minimize incompatibility with the character ofthe surrounding area
(Stock Brf.
22).
This argument
cannot stand.
At hearing, Sutter’s expert witness (Mr.
James
Bitzer) on this issue specifically testified that
in his opinion the proposed facility, within a
reasonable
degree ofhis profession as a real estate appraiser, satisfied criterion
3
including
minimizing
any incomparability with the surrounding area (C.
182).
This opinion was based
upon the experts experience in the field, which included familiarity with other waste transfer
sites, and a review ofthe property in question (including its use as a former commercial gain
elevator).
Based upon this foundation, the expert was fully capable ofrendering an
expert
opinion.
Accordingly, to say that no evidence was presented on this criteria is not correct.
Furthermore, the Courts have upheld the sufficiency ofexpert testimony to satisfy this criterion.
Moore v.
IPCB, 203
Ill.App.3d
855,
148 Ill.Dec.
864
(5th
Dist.
1990).
Also it should noted that
Petitioner Stock had the opportunity, and
in fact did,
cross examine this expert.
These facts clearly show that the Effingham County Board appropriately decided this
issue.
Under the applicable standard ofreview in siting cases (discussed in
Sutter’s Initial Post-
Hearing Brief), Petitioner Stock has not demonstrated that a result opposite from the one
determined by the Effingham County Board is “clearly evident, plain or indisputable
from a
review of the evidence.”
American Bottom Conservancy, PCB No.
01-159 p.
2 (October
18,
2001).
4.
Criterion 8
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Both Petitioner’s contest the Effingham County Board’s finding with respect to criterion
eight.
In support ofthe satisfaction of this criterion, Sutter presented the testimony ofone of its
experts, David Kinwile.
Mr.
Kimmle was familiar with the Effingham County Solid Waste
Management Plan (C.
160).
Mr.
Kimmle highlighted for the Effingham County Board the
Plan’s preference for allowing waste haulers to choose the landfill at which they dispose oftheir
waste
as well as the encouragement of out of county waste disposal (C. 162).
Ultimately,
Mr.
Kimmie expressed his expert opinion that the Application was consistent
with the Plan (C.
162).
Mr.
Kimmle’s testimony is amply supported by the Plan itself.
In contrast to
Mr.
Kimmie’s testimony,
Petitioner Landfill 33
also presented the opinion
of an expert witness.
Despite the fact that thePetitioner Landfill 33
expert acknowledged that
the Plan adopted in
1995
(and updated in
1999) called for an option oftransfer stations, the
expert opined that it wasn’t included within the specific recommendations ofthe Plan (C.
215).
Even assuming that this argument is correct in that a waste transfer station was not specifically
recommended, the expert would have the County Board disregard those portions ofthe Plan
which call for flexibility and allow for a response to
changing waste needs and economic
circumstances.
Such concepts offlexibility are incorpoarted into the Plan as identified by Mr.
Kimmie.
Indeed, even Petitioner Landfill 33 should not be allowed to complain on the Plan’s
flexibility in that it has reaped the benefit of an acceleration of the Plan’s specific
recommendations that Landfill 33
not be allowed to expand until 2009.
Petitioner Stock simplyrefers back to its arguments on the need criterion and does not
address any specific inconsistency between the Plan and the Application.
Petitioner Stock
does
not refer to
any section ofthe Plan that restricts the development of a transfer station, nor does it
point to
any expert testimony on this
issue.
Accordingly, its arguments must
fail.
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Ultimately, the Petitioners burden is to demonstrate that an inconsistency between the
Plan and the siting ofa waste transfer station was clearly evident,
plain and indisputable from the
evidence.
Petitioners cannot simply hold up a competing expert who has developed
an
alternative theory ofthe Plan to
meet this burden.
Even in the face ofconflicting evidence, the
PCB cannot reverse a county decision merely because the local siting authority credits some
evidence over other evidence.
St.
Clair County
v. Village ofSauget et al., PCB No.
93-5
1, p.
5
(July
1, 1993).
Similiarly, just because a local siting authority could draw different inferences
and conclusions from conflicting testimony does not warrant a reversal of the local authority’s
findings.
Id..
This well settled case law prevents the PCB from reversing the Effingham County
Boards findings on this issue.
III.
Conclusion
For the reasons set forth above, as well as the reasons identified in Respondent Sutter
Sanitation Service, Inc.’s Initial Post-Hearing Brief, Respondent Sutter respectfully requests that
the Pollution Control Board affirm the September 16, 2002 decision ofthe Effingham
County
Board approving Sutter’s Request forLocal Siting Approval for a Proposed Solid Waste Transfer
Station in Effingham County.
Respectfully submitted,
SUTTER
SANITATION SERVICES
By:
~
7’
~
One ofIts Attoruleys
Sorling, Northrup, Hanna, Cullen
and Cochran, Ltd.
DavidA. Rolf and
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PROOF OF SERVICE
The undersigned hereby certifies that
a copy ofthe foregoing document was served by hand
delivery on Friday, January 17, 2003 to:
Stephen F. Hedinger
Christine
G. Zeman
Hedinger Law Office
Hodge Dwyer Zeman
1225 S. Sixth
St.
P.O. Box 5776
Springfield, IL 62703
Springfield, IL 62705-5776
and by Federal Express on Thursday,
January
16,
2003 to:
Edward
C.
Deters
Effingham County State’s Attorney
County Office Building
101 N. Fourth St., Suite 400
‘
Effingham, IL 62401
~
0370279001
1/16/O3CJN
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