RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROLBOARD.

CLERK’S

OFFV’E

CITY OF KANKAKEE,

JUL.

22003

Petitioner

STATE OF ILLINOIS

PCB 03- 125

PollutIon

Control Board

Vs.

(Third Party Pollution Control

Facility

Siting Appeal)

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS,INC.

Respondents

MERLIN KARLOCK,

Petitioner

PCBO3-133

Vs.

(Third Partu Pollution

Control

Facility Siting Appeal

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS,INC.

Respondents

MICHAEL WATSON

Petitioner

PCB 03-134

Vs.

(Third Party Pollution Conttrol

Facility)

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS,INC.

Respondents

KEITH RUNYON

Petitioner

PCB 03-135

Vs.

Third Party Pollution Control Facility

Siting Appeal

COUNTY OF KANKAKEE, COUNTY

BOARD OF KANKAKEE, and WASTE

MANAGEMENT OF ILLINOIS

---

TABLE OF CONTENT

Petitioner Runyon’s Response to Waste Management’s Response Brief

1-

2

Petioner Runyon’s

Response to Moran arguments based upon misreading of

County

Plan

Based upon misreading of the County Plan.

2-3-

4

Moran argument prohibiting a landfill over a heavily utilized

water supply aquifer

3-4

Moran argument that a valid HostAgreement was in effect on August 16, 2003

is

groundless.

4-5

Moran Argument that attempts to deny Applicant failed to

comply with the Solid Waste

Management Plan, from the the beginning of the Process.

5-

6

Conclusion:

6-

7

Petitioner Runyon’s Response to County ofKankakee’s Response to petitioner’s prelimin

aryBrief

----7-9

Argument that Applicant had a valid Host Agreement prior to

siting application.

--9

County Argument to support the claim the Applicamt provided an independently

prepared property Value Guranatee Program.

9

Failure of County and Applicant to

deny that proposed facility is located over a heavily

used

water supply aquifer.

10

Failure of County to demonstrate that the County and Applicant provided Crucial public

involvement throughout the landfill site selection process.

10

Conclusion:

----11

---

Petitioner Keith Runyon’s Final Briefand Response to Briefs of Waste

Management and

County

ofKankakee Before the Illinois Pollution Control Board.

Both the County and the Applicant have opted to answer obvious non-compliance with

the County’s

Solid Waste Management Plan by either the arguing outside the record, by

resorting to

selective

relativism

or by

attempting

to

shift

the burden

of proof to the

petitioner.

The burden clearly rests with the Applicant and the County which they chose

not to

accept in their Rush For Riches.

Compliance would

have

delayed

anticipated

revenues.

The four

conditions

of the

County’s

Solid

Wast.e

Management

Plan

were

pillar

conditions

in the

original

plan

and

have

remained

in

tact

through

five subsequent

amendments to the plan:

(Runyon Br. at 4-5)

1)A site should not be located above or near a groundwater recharge zone or a heavily

utilized

water supply aquifer.

(Pg 330

County Solid Waste Management Plan)(Runyon

Br.

at4)

2)Public involvement is

crucial throughout the landfill selection process and

should

solicited from the. initial

stages of the process.. Through solid waste advisory committees,

public hearings, etc., local

criteria should be developed to

identify a site that reflects the

concerns of the public.

(Pg. 334 County Solid Waste ManagementPlnn)(Runyon Br.at4)

3)Prior

to

granting

of

a

siting

approval

pursuran

to

Section

39.2

of

the

Illinois

Environmental Act,

a host-benefit fee shall be established

with the Applicant.

(Pg.

344

County Solid Waste ManagementPlan(- Runyon at 4)

4)The owner or operator of a proposed new landfill or landfill expansion in the County

shall

be required to

establish

a

Property

Value Guarantee

Program for

all

households

within

a

site

specific

distance

from

the

proposed landfill

site.

Such

Property

Value

---

Guarantee Program to

be prepared

by

an independent entity satisfactory to

the County.

1)Petitioner

Runyon’s

response

to

Waste

Management

Brief.

7.

Criterion 8:

The Expansion Is Consistent With The Kankakee County Solid Waste

Management Plan.

(Moranpg. 69 Response Brief)

Mr. Moran has brought arguments and case citations which are not a part ofthe original

record.

His references to Lakes v.

Randolph County PCB

99-59

,m slip op at 31-32 and

City of Geneva v. Waste Management if Illinois, Inc.

PCB

94-58,

slip op,

and the

arguments they purport to

support, are not a part of the record and are inadmissible.

a)

Moran Br. at

pg 69) “Their arguments are based on

Plan and therefore without merit”.

“The first contention is that

the County Plan prohibits

a

siting above a heavily utilized

water

supply

aquifer.

(Karlock Br. At 36,: Runyon Br.

5-9)

The County Plan contains

no

such prohibition.

The language of the Plan states that “(a) site should not be located

above or

near a groundwater recharge

zone

or a heavily utilized water supply aquifer.”

(Offer ofproof,

Watson IPCB Hearing exhiblit

7, p.

300.)”

The foregoing argument and

theoffer of proof were not a part of the hearing record.

The Offer of Proof was presented during the Appeal Hearing and is inadmissible.

Moran goes on to

say that” This Board has held that the use of “should” in the County

plan does not establish a mandate or requirement”(

Moran, response briefpg.

70)

This

argument

was

not

presented

during

the

hearing,

is

not

on

the

record

and

inadmissible.

Mr. Moran argues that

“should” is not mandatory

andyet

this

provision of the

plan

has remained though five amendments

to

the County

Solid

Waste Management

Plan.

---

The fact that the County has chosen not to remove this provision from it’s plan indicates

the intent of

the County of this provision to make the provision prohibitive.

The Applicant failed to produce a

single witness

from the County to

indicate that this

provision ofthe plan is meant to be only a recommendation and not absolute.

If the argument is..that “should” cannot be construed to be

a prohibitive term, it then

follows

that

the term “preferred” as used to

describe a

waste

processing facility, as

proposed by

the Applicant for the county,

can only

be

deemed

to be

“recommended”

and not mandated.

In this

case Ms.

Smith’s

analysis of the Application’s compliance

with the

Sold Wasted Plan is open to

serious question since there is nothing mandating a

landfill as the means for processing garbage.

It therefore follows that Ms.

Smith cannot

assume that Applicants proposed landfill complies

with the Solid Waste Plan because the

word “preferred” is not absolute.

a)Mr.

Moran

further agues

that

prohibiting a landfill over an heavily

utilized

water supply aquifer means

that no landfill would be sited

in the County

(Moran

Br. at

70)

This

may very

well be true that is not what the Solid Waste Management Plan

Condition

says.

He produced no witness or testimony during the hearing to dispute the

intent of this

pillar condition.

Failure to produce witnesses or testimony

to refute the

validity of

this plan condition clearly indicates the Applicant’s unwillingness or inability

to assume it’s burden of proof on this issue.

The burden

is

on the Applicant to meet the conditions

of the plan.

However, it was

pointed

out during the testimony that the proposed landfill is planned at a site among the

two worst sites for a landfill in the

County as defined by the Illinois Geological Survey.

Never denied by the applicant.

(Runvon Tr. At

6.)

This site specific analysis says only

that this and the City’s

proposed site are the two worst sites that could be

chosen

in the

County.

It does not rule out other sites in the County.

Witness Norris also. told the. hearing tl~a.t

the. proposed facility is located,right above

the.

aquifer which provides the water supply for the Kankakee Metropolitan Area.

(Rwiyon

Tr. At 7)

Never denied by the Applicant.

3

---

b)Mr.

Moran

argues

that

the

Applicant

complied

with

the

Solid

Management

Plan’s

requirement for an

independently prepared

property

guarantee program because the County

entered into a Host Fee Agreement which

purportedly

contained

a

Property Value

Guarantee Program.

(Moran,

Response

Briefpg 70)

A review of the record

reveals that there was no

suchproperty value program attached

to the Host Fee Agreement.

That program was submitted later,

By Waste Management

to the County Chairman and was never accepted or passed by the Board as a whole.

The

Property Value Program was written by Waste Management-a fact never denied by

the

Applicant.

(Runyon Br.

at 21)

Therefore the Applicant failed

to meet

this condition of

the County Solid Waste Management Plan.

The Applicant never denied that an

independently prepared program is

required by the

Solid Waste Management Plan.

(Moran Response Brief, pg

70)

Yet the language of this

condition

is

unmistakable in

it’s intent:

“The

owner or

operator of

a proposed new

landfill or landfill

expansion

in

the

County

SHALL BE

REQUIRED to

establish

a

Property Value Guarantee Program for all households within a site specific distance from

the proposed landfill site.

Such Property Value Guarantee Program to be prepared

by an

independent entity

satisfactory to

the County.

(Runyon

Br.

at 20).

The word “shall”

makes this

provision mandatory.

Applicant failed

to

comply

with this provision

of the

Solid Waste Management Plan.

Applicant never denied nor took issue with this argument during the Hearing, therefore

this is new argumentation outside the record.

c)Mr.

Moran argues that there was

a valid

Host Agreement in

effect on August

16,

2002.

His

argument

is

groundless.

As clearly outlined in petitioner’s preliminary

brief,

the

Host

Fee Agreement

was

withdrawn

when

the

original

application

was

withdrawn on July 22,

2002. The previously signed Host Agreement terminated on that

date and neither a new agreement was signed and approved

,

nor did. the County proffer

an

written extension of the previous

agreement as required in

the expired agreement.

(

Runyon Br.

at 16)

In the interim no agreement was on file after the original

application

was withdrawn as required by the HostAgreement which states

“

“If Waste Management

4

---

does not it siting application and absent the County’s

consent in writing to an extension

ofthe filing deadline for good cause

shown, this agreement shall become null land void.”

for

good

cause the

expanded facility

on

or

before June

1,

2002

unless

the

County

consents in writing to an extension of this period for good cause.

No such extension was

granted.

(Runyon Br. ati 7)

No extension was

ever filed and the neither the Applicant nor the County

denied this

during the hearing.

Mr.

Moran’~laim that

the

County

Solid

waste

plan

does

not require

a

Host

Agreement to be in place prior to a siting hearing, is utterly groundless and an exercise in

semantic

obfuscation.

“The County

Plan

states

that

prior

to “The Host Community

Agreement should be

signed prior to submitting

a

siting application pursuant to 39.2 of

the Illinois Environmental Protection Act.

Further: prior

to

granting a siting approval

pursuant

to 39.2

of the

Illinois

Environmental

Act,

a

host

—benefit fee

agreement

SHALL.

be

established,

with

the

APPLICANT.

(Pg

334

County

S.o.lid

Was.te

Management Plan, Runyon Br.

at 4) -(Runyon Br.

St

15)

The word “Shall

destroy’s Mr. Moran

argument that:

“This

application does not

require the applicant to enter into a host

agreement with the County”

(Moran Br.

at

71)

This

argument

is

outside the record

and therefore

inadmissible but it is ~alsonot

valid.

This

condition of the Solid Waste Plan is unequivocal in it’s

intent.

The Plan requires as

show.n that the. word

SHALL

dictates that a Host Benefit agreement be established prior

to the siting hearing.

the Applicant has failed to accept and to deliver its

burden ofproof that his application

complies

with

the Plan

on

this

clearly defined condition

Furthermore the

argument

brought forward in his brief go beyond the scope ofthe record.

d)Mr.

Moran

denies

the contention

that the applicant

failed to comply with the

Solid

Waste Plan Provision requiring public involvement in the site selection from

the beginning of the

process.

Again

he

argues

“should”

versus the

content of the

---

provision.

His argument here falls to deal with the real issue.

This provision in its plain

language is definitive about the initiation and

progression ofthe site selection process.

The provision

is venerablehaving

remained in tact through five modifications

of the

Solid Waste Management Plan.

(

Runyon Br.

at

4)

Applicant never refuted this

during

the hearing therefore this is argumentation outside the hearing and is inadmissible.

Nonetheless,a

review of this condition of the Plan

reveals that the argument used by

Mr. Moran is obfuscation by omission.

Mr.

Moranchose. to focus on the word “should”,

whereas the more vital and controlling

word of this condition of the Plan is “Crucial”.

The wording of this

condition

is:

‘Public involvement

i~RUCIAL

throughout the

landfill

site

selection process

and

should

be

solicted

from the

initial

stages

of the

process.”

(Runyon Br. at

4)

The New College dictionary defines Crucial as: involving

a final and supreme decision: decisive: critical.

This word” Crucial” controls the intent of this condition of the plan and removes

any

doubt

about

the mandatory nature of this

Plan

Condition.

The Applicant failed to

comply with this crucial condition of the Solid Waste Management Plan.

e)Conclusion:

Applicant has failed to show compliance with the Solid waste plan in it’s response

brief even though Applicant went beyond

the scope of the record

in it’s response.

Applicant presented virtually no evidence during the Hearing to evince compliance

with

the four aforementioned pillars of the Solid Waste Management Plan.

It was the Rush to

Riches

on

the part of

both the

Applicant

and the

drove

both

parties

to

ignore

the

requirements

of

the

County’s

Solid

Management Plan.

This same Rush to Riches caused the Applicant and the

Coun

ty

to cooperatively and secretly work to systematically lock the Public out ofthe site

selection process.

Both parties knew that adherence to the process would

slow

process of approval.

For these

reasons Petitioner Prays

that

the

Pollution

Control Board overturns the

Siting awarded by the County ofKankakee to

new Polution Crotrol Fadity located in Otto Township in the County of Kankakee.

6

---

Petitioner further prays

that the IPCB will order the Applicant and the County to

Solid Waste Managemt Plan.

RUNYON’S

RESPONSE

TO

COUNTY

OF

Response

to brief from

Attorney’s Heisten,

Porter,

Attorney’s

for

the

County

contend

that

the

Ms.

Smith,

the

witness

for

applicant

demonstrated compliance

with the

Solid

Waste

Management Plan

by

opining that “landfilling is the preferred disposal option; that the plan identifies the

existing landfill as

the

preferred landfill.

(Heisten etat Br. at 57)

This petitioner never took issue with this contention.

That Ms. Smith has had

20 years ofreviewing solid waste management plans only

proves that she has a

certain level of comprehension.

It also indicates that

astute

enough

to

pick

the

battles

she

believes

she

can

win.

Witness

Smith’s

selectivity in responding to only three plan conditions,

is

evidence

that

her reading

of

Plan

and

the

Application

made

her

very

aware

of

the

Application’s

deficiencies in terms ofApplication

a)Ms.

Smith addressed

only

one of the four conditions of the Plan

which

petitioner contends were not met by the Applicant Hearing.

That Condition

being

the requirement for a Host Agreement Prior to a siting hearing.

(Runyon Br.

Al 3)

7

---

(

Hesten

et al at 58)

Argue

that

“Petioner

used

the

incorrect standard

of review,

asserting that

the “preponderance ofthe evidence” demonstrates

that the expansion is

not

consistent with the plan.

The proper standard ofreview of the siting criteria is “manifests

weight”

not’

“preponderance of the evidence”.

Petitioner

regrets the incorrectly

selected

“standard of revieW

Petitioner’s

legal

training is conspicuous by its apparent absence.

What I intended to say is that the bulkof the.cross examination, testimony and cites by

the attorney’s in

the hearing far outweighed any

evidence offered by

the Applicant

in

terms of plan compliance.

And further that the Applicant failed to establish it’s

burden of

proof on the compliance issues..

(Heisten et al Br. at 58—59) Argue

that “Further, the bulk of the information cited by

Runyon in support of his claims are cites of statements of attorneys and objectors during

opening and closing remarks, and during cross examination, are not evidence, and cannot

be used to prove a particular position.

The. limitation is applicable to statements made. by

non-attorney

objectors,

such

as

Mr. Runyon,

in

the

context

of opening

and

closing

statements, and

examining witnesses.

The IPCB

should

not consider

any

such non-

evidentiary statements

,

cited by Mr. Runyon, as support for his arguments”.

This

argument is irrelevant.

Heisten et

al,

are fully aware that the Hearing officer

denied

Runyon

access

to

any

materials

which

are

outside

the

record,

during

interrogatories, on the basis that compliance

issues may be argued only from material on

the record.

(Hearing Officer Ralloran ‘s Order, April 17,

2003

at 3)

In denying Runyon’s interrogatoriea

The Hearing office said:”

Waste Management’s

objections

to Runyon’s interrogatories nos. 2,

3,

4,

5,

6, 7,

8 and

9

are sustained where

the interrogatories appear

to

seek information

outside of the record and

therefoTe not

relevant to Runyon’s petition for review.

To the extent that some of the requests involve

information in the record, Runyon has

access to

that information.” Further Helston

and

Porter filed a motion to deny Runyon access

to all materials not in the original record, to

the IPCB to

(Heisten

& Porter Interrogatory Denial Request ofApril 07,

200

at

2-5,1.

Their Motion Was Sustained.

2

---

The objection raises

the flag on all

respondent attorneys who are attempting

to now

bring in evidence

and

argumentation not in the original record. They failed to

argue the

points during the Hearing that they are not trying to argue in their briefs.

To this

extent,

all

such arguments and

evidence is

inadmissible by respondent attorneys.

Furthermore

the cites of Attorneys

and objector are about all that is

in the record because Applicant

and County

attorneys largely

failed to

defend against the charges of opposing

attorneys

and objectors.

b)Argument that the Applicant had a valid Host Agreement is

Place prior to the

siting

application

is

not

an

argument brought

forth by the

County

during

the

Hearing.

The argument is not now admissible.

(Heisten et al

Br. at 60.)

This

argument was dealt with in previous response

to Waste Management at

4-5 in

this

brief)

However it is

very important to note that

the County was uncertain it has a

Valid

host Fee Agreement

by

stipulating

as

a

condition

of siting

that:

“The landfill

operator must comply

with

all obligations and responsibilities of

the. December

2001

Host Agreement between the

County

and

Waste Management.”

Confidence that

the

County has valid Host Agreement would have rendered this action redundant.

(Heisten

c)Argument

advanced

to

support

the

claim

that

the

applicant

provided

a

Property

was

not presented

during the

hearings

by

attorney’s and therefore their post hearing argumentis

Property

Value

Guarantee

Program fails

to

meet

the Plan

requirement for

an

independently prepared

Program.

(Runyon

Br.

at

3)

The

inadmissible

straw

argument used by Helsen et al, fails to

deal

with

the

issue

that the

Program must

be

established

by

an independent

party

acceptable

to the County.

Instead Helsten et

al

argue

that

“

Further

the

County

Board

again imposed

a

condition

on

siting,

which

requiresthat

the. landfill operator must employ independent appraisers acceptable. to the.

County as part of the property value guarantee program”.

9

---

This

inadmissible argument

only

substantiates the Applicants non-compliance with

this

Condition of the Solid Waste Plan.

The fact that Waste Management provided it’s

in house program instead of an independently prepared plan, was never challenged nor

denied by Heisten et al during the Hearing.

(Runyon Br. at

20-21)

Further,

the argument

advanced that independent appraisers be used as “part”

of the

property value program does not satisfy the requirement for an independently prepared

program.

Conclusion: Helsten et al argue an inadmissible

off the record argument in an attempt

to

show

plan

compliance and

were

still

unable

to the refute

the contention that

the

Applicant has failed to comply with this requirement of the solid waste plan.

d)Helsten et al,

failed to deny that the proposed facility is to be located above or

near a heavily used water supply aquifer.

(Heisten et al Br. at 61)

This argument was

never carried forward

by

Heisten

et al,

during

the hearing

although

they had

ample

opportunity to

do

so.

Runyon’s response to this

argument has

already be

advanced

in

petitioners Answer to Waste Management’s Argument on this

same Plan condition.

(See

Runyon at 3-4 his Brief).

But in summary, the Solid Waste Management Plan has been

amended five. times. This requirement has remained in tact through al-i the. ameudmenta

which makes a clear case for the prohibitive nature of this condition.

(Runyon Br. at4)

e)Helsten

et

al,

Failed

to

demonstrate

that

Crucial

public

involvement

as required by the Solid Waste Management Plan.

(Helsten et a! Br at61)

Helsten et al

never entered testimony or argumentation

during the hearing to dispute

this issue..~f

A

licant.non.~com.pl4ance..

Nonetheless this pillar condition ofthe Plan is

controlled by the word

“Crucial”.

The

wording of this

condition

is

‘Public

involvement

is

CRUCIAL

throughout the

landfill

site

selection process and

should

be

solicited from

the

initial

stages

of the

process.”

(Runyon Br. at

4)

The New College dictionary defines Crucial as: involving

a final and

supreme decision;

decisive: critical.

10

---

This word contrsl and

clearly defines

the intent of this

condition of the plan

and

removes

any doubt about the strict

requirement set forth

in

this

Plan

condition.

The

response to Helsten et al

is the same the response given to Waste Management

(This Br.

at 6)

Helson et a! advanced

arguments outside

the original record.

Conclusioi~Ielstenet

al.

Failed

to uphold

their

burden

applicant

is

incompliance

with

the

four

pillar

provisions

of

Solid

Waste

Management Plan requiring no siting near or above

aquifer,

Public

involvement

from

the

beginning of the

Process

including

selection, A

valid Host Fee Agreement, and

Value Guarantee Program.

It was

the Rush

tG

Riches on the part

ofboth the Applicantand the

County that

drove

both

parties

to

ignore

the

requirements

of

the

County’s

Solid

Management

Plan.

This same Rush to Riches caused the Applicant and the

Coun

ty to cooperatively and

secretly work to systematically lock the Public out of the

initial

site selection process.

For these reasons, Petitioner Prays

that the Pollution Control Board

overturns

-the

Si

g.awarded..by the

County

ofK

nicakee to

WasteManagement.of..ihiiiois-Thr

a

new

Pollution

Control

Facility

located

in

Otto

Township

in

the

County

Kankakee.

Petitioner further prays that the IPCB wifi

order the

Applicant and the County to

comply fully with the conditions of the County’s very effective and

comprehensive

The Foregoing Was

Control Board

in

the volume

of one

original

and

nine copies

via

Priorly Mail

on

11

---

June

30,

2003.

Each of the parties

on the attached Affidavit of Service

sent

a

copy of the foregoing

on the same date via

regular mail

or

had

Petitioner,

Representing Himself

-1.165. Plum.

Creek

Driver

-Unit

.a

Bourbomiais, Il. 60914

Phone

815

Fax 815937 9164

.1,

---

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section

1-109 ofthe Illinois

Code of

Civil Procedure, hereby under penalty perjury under the laws of the United States of

America, certifies that on June

30th

2003 was served a copy ofthe foregoing Brief via

US Mail.

Dorothy M. Gunn, Clerk

Illinois

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Il 60601-3218

Attorney George Mueller

501

State Street

Ottawa, II

61350

815

433 4705

Fax8154224913

Donald J. Moran

Perterson &

Houpt

161 North Clark Street, Suite3100

Chicago, Il 60601-3242

312

261

2149

Fax 312261 1149

Elizabeth Harvey, Esq.

Swanson, Martin,

& Bell

One IBM Plaza, Suite 2900

330 North Wabash

Chicago, 1160611

312321 9100

Fax 312321 0990

Kenneth A Leshen

One Dearborn Square, Suite

550

Kanicakee, Il. 60901

815

933 3385

Fax 9333397

L. Patrick Power

956 North Fifth Avenue

Kankakee, 1160901

815 937 6937

Fax937

0056

---

Jennifer J. Sackett Pohlenz

175 W.

Jackson Boulevard

Suite

1600

Chicago, 11 60604

3125407540

Fax3125400578

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph,

1

1th

Floor

Chicago, Il. 60601

3128148917

Fax8143669

Richard S. Porter

Charles F. Helsten

Hinshaw & Culbertson

100 ParkAvenue, P.O. Box 1389

Rockford, Il. 61105-1389

By depositing a copy thereof, enclosed in an

envelope in the United States Mail at

Bourbonnais,

Illinois, proper postage prepaid, before the hour of 5:00 P.M.,

on June

30th. 2003

addressed as above.

Keith Runyon

i

1165 Plum Creek Dr. Unit D.

Bourbonnais, IL 60914

8159379838

Fax8159379164