BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Ct1~
COUNTYCITYOFKANKAKEE,OFPetitioner,KANKAKEE,
)
)))
(Third-PartyPCB
03-125
Pollution Control
pollutIon
Facifity
smTE°~
‘tiL
Contro
~3
ZOOS
~oard
COUNTY BOARD OF KANKAKEE,
)
Siting Appeal)
and WASTE MANAGEMENT OF
)
ILLINOIS, INC.
)
Respondents.
)
MERLIN KARLOCK~
)
Petitioner,
)
vs.
)
PCB03-133
COUNTY OF KANKAKEE, COUNTY )
(Third-Party Pollution Control Facility
BOARD OF KANKAKEE, and WASTE )
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCB03-134
COUNTY OF KANKAKEE, COUNTY )
(Third-Party Pollution Control Facility
BOARD OF KANKAKEE, and WASTE )
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
KEITH RUNYON,
)
Petitioner,
)
vs.
)
PCB03-135
COUNTY OF KANKAKEE, COUNTY )
(Third-Party Pollution Control Facility
BOARD OF KANKAKEE, and WASTE )
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
RESPONSE TO COUNTY BOARD’S MOTION TO STRIKE
THE BRIEF OF PETITIONER KARLOCK
Now comes Merlin Karlock, by his attorney, George Mueller, P.C., and for his Response
to the County Board’s Motion To Strike his Brief states as follows:
1. Petitioner Merlin Karlock filed his Brief as required on June 2, 2003 and served
copies ofthe same by regular mail on other counsel on the same date. This is not disputed by the
County Board in their Motion and, in fact, is the basis oftheir request that the Brief be stricken.
2. The County Board relies on oral statements ofthe Hearing Officer at the hearing of
May 6, 2003 in support of its Motion. With all due respect, those oral statements do not rise to
the level ofan Order. The Hearing Officer’s written Order received in the Clerk of the Pollution
Control Board’s Office on May 20, 2003 states, “A briefing schedule was discussed and agreed
to at the hearing. The petitioners opening post-hearing briefs are due to be filed on or before
June 2, 2003. The respondents post-hearing briefs are due to be filed on or before June 23, 2003.
Petitioners reply brief shall be filed on or before July 3, 2002. Mail box rule does not apply to
briefing schedule. Public comment is due to be filed on or before May 23, 2003.” This Order
makes no provision for when briefs are to be received by opposing counsel.
3. The record ofthe Pollution Control Board hearing on May 6, 2003 further reflects that
the attorney for Petitioner Karlock was not present at the time the Hearing Officer made his oral
pronouncement. (PCB Hearing Transcript May 6, 2003 at 127).
4. The attorney forPetitioner Karlock relief in good faith upon the written Order of the
Hearing Officer and was unaware ofthe oral pronouncements ofthe Hearing Officer regardless
ofwhether those pronouncements arose to the level of an enforceable Order. Moreover, the
County does not claim any prejudice by reason ofreceiving the Brief one day after it was filed.
In fact, a reading ofthe County’s Brief indicates that they have comprehensively and with great
skill addressed the arguments raised by Petitioner Karlock.
5.
In light ofthe County’s Motion, it is somewhat ironic that the County likewise failed
to serve Petitioner Karlock in a timely fashion with its Brief in chief. The County’s Brief was
faxed to Petitioner Karlock’s attorney from the office of Swanson, Martin and Bell, phone
number (312) 321-0990, at 3:46 p.m. on June 23, 2003. However, said fax was not complete as
only the first
45
pages ofthe County’s Brief were faxed. The County’s total Brief is 64 pages in
length. Subsequently, at 4:48 p.m. on June 23~,after the office ofPetitioner Karlock’s attorney
was closed for the day, the County faxed all but 1 of the remaining pages ofits Brief. As ofthis
date, Petitioner Karlockhas still never received page 46 ofthe County’s Brief. In support of this
argument, attached hereto is a copy of page 66 of 66 ofthe County’s original fax transmittal, that
being page 45 oftheir Brief, and a copy ofpage 1 of 18 ofthe County’s after hour transmittal,
that being page 47 of its Brief.
For the foregoing reasons, Petitioner Karlock prays that the Motion ofthe County to
strike his Brief be denied.
Respectfully Submitted,
Merlin Karlock, Petitioner
BY:
E~irn2
M~iJOø~
Hi~Attorney
GEORGE MUELLER, P.C.
Attorney at Law
501 State Street
Ottawa, IL 61350
Phone: (815) 433-4705
Fax: (815) 433-4913
JUN 23 ‘~3j5:~4
FR SL4ANSON MARTIN BELL 312 321 ~99ø TO 1B154334~13
p~55,155
additional feature of protection, beyond the engineered aspects of Mr. Nickodem’s design.
C1258 at ~5l.This is not somehow afailure ofthe design, but an added benefit
Watson further rnislea.ds the IPCB regarding Mr. Nickodem’s testimony regarding a
potable well which may be located on the property to the east of the proposed expansion.
Watson states that Mr. Nickod.ein failed to investigate whether there was a well on the eastern
property, when in fact Mr. Nickodem testified that he reviewed all available public records
regarding wells ~ the area, and that no well was shown on the eastern property. Although he
was aware that there might be “something” on the eastern property, there was no documentation
to show that aiiy well there was certified. C1257 at 27-28. Additionally, Watson fails to inform
the IPCB that the (bounty Board added a specific condition to its approval on criterion two,
which requires WMII to perform a field verification to locate all potable wells within 1,000 feet
of the proposed expansion. C2349, Condition 2(c). Thus, to any degree that there might be a~
lack of information on. nearby wells, the Co~uniyBoard has already required, as a condition of
siting, thai:
WMU
investigate further.
Watson again misquotes Mr. Nickodeni’s testimony in Watson’s arguments regarding
plans if levels of landfill gas reach five percent ofthe lower explosive limit. Watson implies that
Mi. Nickodem believed that this only need be addressed if raised by the IEPA. However, Mr.
Nickodeni.’s testimony was much more extensive, and iu~uded an explanation that such
occurrenc~sneed to be addressed on a case-by-ease basis, because the appropriate steps to be
taken dep~ndupon the specific situation. C1257 at
56-60.
Likewise, Watson glosses over Mr.
Nickodena’s testimony regarding a schedule thr the installation of gas collection wells. Mr.
Nickodern testified that gas systems for individual cells will be installed when the waste
45
7o36~
46.11 S13.3~3
JUN 23 ‘03 16:4? FR S~JANSONMARTIN BELL 312 321 0990 TO 18154334913
P.01/lB
manifest weight of the evidence, despite the County Board’s condition regarding leachate.8 To
the contrary, the County Board’s condition adds another layer of protection regarding leachatc.
Watson’~bare assertion, without explanation or support, that issues regarding leachate render the
County Board’s decision against the manifest weight ofthe evidence does not make it so.
Next, Watson attacks WMIr’s proposal that leachate be recirculated in the proposed
expansion. However, Watson fails to inforn the IPCB that the County Board imposed a
condition on siting approval disallowing the recircujation of leachate. C2350, Condition 2(m).
The condition prohibits the recirculation ofleachate, under any circumstances for a period of at
least four years after receipt ofan operating permit. After this four year period, leachate may be
recirculated only upon the express approval of the County Board. Thus, issues relating to the
proposed (but prohibited) recirculation ofleachate do not show that the County Board’s decision
is against the manifest weight ofthe evidence.
Another misleading argument made by Watson is the claim that there is insufficient
information on how WIVITt will manage excess soil. Watson states that there will be six million
cubic yards ofexcess soil created by construction, of the facility, and questions what will, be done
with the ~ixcesssoil. Watson fails to note, however, that Mr. Nickodern testified as to uses of the
excess soil (liner construction, berm construction, daily and intennediate cover). C1257 at 48.
Of course, not all ofthat excess soil will be created at once: the construction of the landfill is
done in stages, so that the “excess” soil is created over a number of years. During that time,
much of the soil is used at the facility.
In short, none of the issues raised by Watson demonstrate that the County Board’s
decision is against the manifest weight ofthe evidence. In fact, a review ofthe information cited
~ Thc County Board rcquires WMII to install an automatic monitoring system to
ensure
that’
thc
leachate level does
nc~exceed one foot ofhcad oi~the liner. C2351, Condition 2(u).
47
7Q3661’46v1 ~~33