CLERK1S OFFfCE

BEFORE TIlE

ILLINOIS POLLUTION CONTROL BOARDJUL

3 2003

STATE OF ILLINOIS

CITY OF

KANKAKEE,

)

Pollution Control Board

Petitioner,

)

vs.

)

PCB03-125

COUNTY OF

KANKAKEE,

)

(Third-Party Pollution Control Facility

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.

)

INTRODUCTION

Little reply is necessary to the Briefs filed by Waste Management and the County. The

Board is urged to review the record to determine whose arguments and whose assertions offacts

are supported by the evidence. The County, in its Brief, makes much ofthe fact that different

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arguments have been made by various attorneys for various parties in different cases. This is

nothing more than a diversion since the arguments in the Briefs ought to be judged on their

merit, and not on their consistency with arguments made by the same attorneys in other cases.

For example, footnote 9 on page

50

ofthe County’s Brief is particularly troubling as it

introduces matters outside the record in an attempt to undermine the credibility ofPetitioner

Karlock’s attorney. Such unwarranted attacks can only be construed as a tacit admission that the

arguments, themselves, cannot be undermined.

DUE TO A FAILURE TO GIVE REQUIRED JURISDICTIONAL NOTICES

The County’s Brief glosses over the failure to give required notice to BrendaKeller.

Waste Management’s Brief treats the issue in detail, but misses the crucial points which lead to

the inescapable conclusion that required notice was not given. Waste Management initially and

erroneously states that certified mail notice was attempted on both Robert and Brenda Keller

(Waste Management Brief, Page 11). The Brief subsequently corrects the point acknowledging

that certified mail notice was never attempted on Brenda Keller. (Waste Management Brief,

Pages 13, 22).

Waste Management now argues that regular mail service on BrendaKeller is sufficient to

satisf~’the jurisdictional requirements ofthe statute. This is not the language ofSection 39.2 of

the Act, nor is it the law in any reported case ofthe Board or the Appellate Courts. Waste

Management alternatively argues that posted service is sufficient to satisf~’the notice

requirement, and cites in support ofthis argument the United States Supreme Court case of

Greene v. Lindsey,

456

U.S. 444 (1982). Not only does this case deal with the limited issue of

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notices involving continued possession by the owner ofthe property on which the notice is

posted, but the Court in Greene found the posted notice to actually be insufficient. That leaves

the Board with the existing law that posted notice is not authorized in Section 39.2 ofthe Act,

nor in any case construing those notice requirements.

Waste Management next argues that this Board should conclude that Brenda Keller was

somehow avoiding service ofnotice. While the legal effect Of the avoidance of service by a

property ownerhas not been clearly decided by this Board, the line ofBoard decisions cited in

the Waste Management Brief suggesting that under certain circumstances the notice requirement

ofthe statute may be excused, seems to have been effectively overruled in Ogle County Board v.

Pollution Control Board, 272 I11.App.3d 184, 649 N.E.2d

545

(2’~’Dist. 1995), which decision

seems to much more strictly construe the notice requirement. More importantly, however, there

is no evidence that Brenda Keller was avoiding service ofnotice, or that she was otherwise

unavailable to be served. In fact, the evidence is to the contrary as Brenda Keller acknowledged

accepting certified mail notice when the March, 2002 notice on the first Waste Management

application was mailed to her. The only evidence Waste Management has to support its position

is the uncorroborated testimony ofits process server that during one service attempt a woman

who was admittedly not Brenda Keller declined to accept notice on Mrs. Keller’s behalf. This

evidence, alone, does not support the inferences which the Applicant asks the Board to draw.

Lastly, Waste Management’s reliance on People ex rd. $30,700 U.S. Currency, 1999

Ill.2d 142, 766 N.E.2d 1084 (2002), for the proposition that certified mail notice is complete

upon mailing is inapplicable to Mrs. Keller as the record is undisputed that no such certified mail

notice was ever attempted on Mrs. Keller.

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It is interesting to note that neither the County nor Waste deny Waste Management’s

failure to serve Brenda Keller with the required statutory notice. They make numerous excuses

for non-service and argue that the Board should accept service alternatives not set forth in the

statute or approved by the courts. Finally, Waste Management argues that Brenda Keller did

have notice because she knew Petitioner Watson and was aware of the proceedings. Inthis

argument, Waste Management mistakenly misconstrues knowledge with notice. The Court

rejected such a misconstruction in the Ogle County case, pointing out that failure to satisf~’the

mandatory service ofnotice requirement is an argument available to all potential objectors so

that even waiver ofservice ofnotice is not legally possible.

CREATES A PRESUMPTION OF UNFAIRNESS

Initially Waste Management argues that the siting application was for expansion of an

existing facility and since there were no documents on file with the IEPA related to the

expansion, the documents on file with the JEPA related to the existing facility were not required

to be included with the application. To the extent that the existing facility is included within the

boundaries of the newproposed expanded facility, this argument is a clear attempt to avoid the

requirement of Section 39.2(c) ofthe Act which requires that the request for siting approval

“shall include (i) the substance of the applicant’s proposal and (ii) all documents, if any

submitted as ofthat date to the Agency pertaining to the proposed facility

...“

(415 ILCS

5/39.2(c)).

The question also has been settled against the applicant in Tate v. Pollution Control

Board, 188 I11.App.3d. 994,

554

N.E.2d 1176 (4th Dist. 1989). Interestingly, Waste Management

in an apparent abandonment of its initial argument that the IEPA record was not required to be

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filed, cites the j~ decision for the proposition that the Section 39.2(c) filing requirements are

procedural rather than jurisdictional. (Waste Management Brief, Page 24). In fact, the Court in

~

stated, “This court need not consider whether subsection (c) ofSection 39.2 is

jurisdictional.”

(I~~

at 136 Ill. Dec 416). To the extent that the Act specifies that an applicant

“shall file,” it is submitted this unresolved legal question should be settled in favor of Petitioners

since the word “shall” is mandatory.

Both the County and Waste Management devote considerable time to the discussion in

the

I~

decision that an applicant’s failure to include with an application documents readily

available from other sources such as the IEPA does not necessarily render siting proceedings

flmdamentally unfair. What both parties miss in the discussion is that these are precisely the

documents which the Court in T~ found to not be a required part ofthe filing due to the fact

that an earlier version of Section 39.2(c) ofthe Act did not explicitly require them. This is not

the same as saying that the unavailability of documents required to be filed is not necessarily

fundamentally unfair. This Board held in American Bottom Conservancy, PCB 00-200 (October

19, 2000), a case in which Waste Management was coincidentally the offending party, that the

unavailability of the application to the public created a presumption ofprejudice. Since Waste

Management’s prior filings to the IEPA in connection with the existing facility were required to

be filed pursuant to Section 39.2(c), those filings are most appropriately treated as part ofthe

application.

Both parties assert that the IEPA filings were available at various local libraries, but this

assertion does not rebut the testimony ofCharles Norris that in the library he checked the filings

were not complete in that the microfiche was not included. Moreover, the statute would suggest

that these filings are to be available at the County along with the application, and the evidence is

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language of the County’s Solid Waste Plan Amendments enacted in close proximity to the filing

of Waste Management’s application, which Amendments evidence the explicit desire ofthe

County to approve the Waste Management expansion. Petitioner Karlock here reiterates and

adopts the arguments made by Petitioners Watson and the City of Kankakee regarding ex parte

contacts and all the other indicia ofprejudgment by the County in this case. The cumulative

effect of the Plan Amendments, the ex parte contacts, the County and Waste Management

working together to oppose Town & Country, and the County’s disregard ofits own siting

ordinance requirements has to be considered. All ofthese irregularities, taken as a whole, can

support no other conclusion but that the hearings were fundamentally unfair.

THE COUNTY’S DECISION THAT THE PROPOSED FACILITY WAS SO DESIGNED,

LOCATED

AND

PROPOSED TO BE OPERATED SO THAT THE PUBLIC HEALTH,

SAFETY

AND

WEIGHT OF THE EVIDENCE.

The fact that both the County and Waste Management defend Waste’s characterization of

the existing site should not be construed to mean that the site is safe. Waste Management argues

that Petitioner Karlock’s Brief, which points out at least four boring locations where there is at

most three feet of claybetween the aquifer and the bottom liner grade, is selective. Of course it

is selective since the facility cannot perform any better than its weakest component. The

undisputed fact remains that the amount of clay separating the aquifer from the bottom liner

grade is minimal at a number oflocations. (Siting Hearing Transcript, Volume 20, Pages 85,

95,

96). The Waste Management Brief acknowledges its chiefengineer’s assumption that the “least

amount” ofin situ clay that he believed was beneath the bottom ofthe liner was eight feet, but

attempts to explain this by saying that he and Ms. Underwood were talking about different

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thickness ofin situ material and not the same thickness. (Waste Management Brief, Page

45).

This entirely misses the argument that the facility designer was working under a completely

erroneous assumption and therebythrows the integrity of the design completely into doubt.

In addition, Waste Management defends their hydrogeologist’s use ofvertical

permeability results for the in situ clay based on laboratory tests ofsmall intact samples because

the glacial materials are laid dowi~horizontally. (Waste Management Brief, Page 43). This

serves as justification for Waste’s hydrogeologist, Ms. Underwood, ignoring the slug test results

in the glacial materials which showed horizontal permeabilities up to 3000 times higher than the

laboratory test permeabilities. Even if this Board chooses to disregard Mr. Norris’ testimony

that field scale slug tests are a better measure ofpermeability because they encompass secondary

permeability from fractures as well as the matrix permeability of intact material, even Ms.

Underwood acknowledged that in glacial materials of this type, horizontal permeabilities would

typically only be ten times higher than vertical permeabilities. (Siting Hearing Transcript,

Volume 19, Page 124). Therefore, Waste’s use ofpermeabilities for the clay in its model 1000

to 3000 times lower than the slug test results is unreasonable.

Likewise, neither Waste Management nor the County have an answer to the undisputed

fact that Waste Management’s groundwater impact evaluation modeled a sixteen foot thickness

of clay between the bottom ofthe liner and the aquifer. Yes, sixteen feet is an average thickness,

but that is simply not an appropriate parameter to use when modeling to determine the likelihood

offacility failure. On average the facility may not leak, but in those places where the underlying

clay is almost nonexistent, the average situation is not at all relevant.

Another inappropriate use of averaging by Ms. Underwood occurred when she averaged

the permeability of the recompacted clay liner with the permeability ofthe plastic liner. The

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argument that this entirely disregards the fact that the permeability ofthe plastic liner is 1.0

wherever that liner is compromised remains unrebutted.

Waste Management attempts to distinguish its characterization ofthe silurian dolomite

from that ofTown & Country found wanting by this Board in PCB 03-31. Waste Management

correctly points out that they did more soil borings and tests than Town & Country to correctly

ascertain the nature ofthe silurian dolomite. They state that this resulted in them referring to the

entire thickness ofthe dolomite as being an aquiferunlike Town & Country, which only

characterized the upper weathered portion ofthe dolomite as an aquifer. However, this

contradicts all prior characterizations ofthe dolomite by Waste Management at the existing

facility, wherein only the upper ten feet was treated as an aquifer.

Ms. Underwood testified for Waste Management that she considered the upper ten feet of

the dolomite as an aquifer ~jy for modeling purposes, but therein lies the crucial similarity

between Waste Management’s understanding ofthe site and Town & Country’s previous

understanding. Waste acknowledges a downward gradient within the aquifer (Waste

Management Brief, Page

50),

but proposes to monitor only the upper fifteen feet ofthe dolomite.

(Waste Management Brief, Page 50). Thereby, Waste Management falls directly within the

holdingofthis Board in the Town & Country case when it stated, “because Town & Country

assumed the competent dolomite bedrock to be an aquitard, the modeling and groundwater

impact evaluation failed to measure vertical flow of contaminants into the silurian dolomite

aquifer.” (PCB 03-31, January 9, 2003, Slip Opinion at 27).

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THE

COUNTY’S FINDING THAT THE PROPOSED FACILITY WAS CONSISTENT

WEIGHT OF THE EVIDENCE.

Waste Management argues in its Brief that an applicant need only comply with the spirit

or intent of a Solid Waste Management Plan. Such a requirement is so vague that no meaningful

evidentiary hearing could then take place. In citing to the Town & Country case in support ofits

argument, Waste Management misconstrues the impossibility ofcomplying with a vague plan

with the illegality ofvague compliance with a specific plan. Waste Management’s similar

contention that only substantial compliance with the solid waste plan is required was recently

rejected by this Board, Waste Management ofIllinois vs. County Board ofKane County, (PCB

03-104 June 19, 2003). In this case, the various specific instances offactual non-compliance

clearly found in the record and unrebutted by Waste Management and the County can only lead

to the conclusion that the County’s decision on this criterion was against the manifest weight of

the evidence.

CONCLUSION

For the foregoing reasons, Petitioner Merlin Karlock respectfully prays that the decision

of the Kankakee County Board granting siting approval be reversed.

Respectfully Submitted,

Merlin Karlock, Petitioner

GEORGE MUELLER, P.C.

BY:

______________

Attorney at Law

His Attorney

501 State Street

~

Phone: (815) 433-4705

Fax: (815) 433-4913

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