RtCL~1VED

Due to the volume of this pleading,
please contact the Clerk’s Office
312/814—3629

RtCL~1VED

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

CLERIcS orncr

DEC 2 4 2003

BYRoN

SANDBERG,

)

STATE OF

ILLINOIS

Petitioner,

)

Pollution Control Board

)

vs.

)

CITY

OF KANKAKEE, ILLINOIS,

THE CITY) Case No. PCB 04-33

OF KANKAK.EE,

ILLINOIS

CITY COUNCIL,)

TOWN AND COUNTRY

UTILITIES, INC.,

)

and KANKAKEE

REGIONAL LANDFILL,

)

L.L.C.,

)

Respondents.

)

WASTE MANAGEMENT OF ILLINOIS,

)

Petitioner,

)

vs.

)

Case No. PCB 04-34

THE CITY OF

KANKAKEE,

ILLINOIS CITY)

COUNCIL, TOWN AND

COUNTRY

)

UTILITIES, INC.,

and KANKAKEE

REGIONAL LANDFILL, L.L.C.,

)

Respondents.

)

COUNTY OF KANKAKEE, ILLINOIS

and

)

EDWARD

D. SMITH,

KANKAKEE

COUNTY)

STATE’S ATTORNEY,

)

Petitioners,

)

vs.

)

Case No. PCB 04-3

TY OF

KANKAKEE,

ILLINOIS, THE CITY)

‘KANKAKEE, ILLINOIS CITY COUNCIL,)

WN AND

COUNTRY UTILITIES,

INC.,

)

KANKAKEE

REGIONAL LANDFILL,

)

C.,

)

Respondents.

)

TABLE OF CONTENTS

THE

CITY OF

KANKAKEE DID NOT HAVE JURISDICTION TO HEAR

THE LANDFILL SITING APPLICATION

The March 7, 2003 Application was Substantially the Same as the

Application Filed on March 13, 2002, Which was Disapproved by the

Illinois Pollution Control Board for Failing to Meet Criterion ii

The City ofKankakee Did Not Have Jurisdiction Because the Applicant

Failed to Send Proper 39.2(b) Notices

Facts

Argument

The Applicant Failed to Send Notices to Each of the

Owners ofParcel No. 13-16-23-400-001

The Applicant Did Not Effectuate Actual Service Upon

Numerous Owners ofProperty Entitled to Service

Return Receipts of Numerous Parcels Were Signed

by Individuals Other Than the Owner of the

Property

The City Council Did Not Have Jurisdiction Because the Applicant Failed

to Submit a Complete Application

II.

THE CITY COUNCIL’S DECISION THAT THE APPLICATION MET

THE SECTION 39.2(A) CRITERIA IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE

Standard ofReview

Statement of Facts Regarding Criterion

and viii

The City Council’s Finding that the Proposed Landfill Met Criterion ii is

Against the Manifest Weight of the Evidence

T&C Once Again Failed to Properly Characterize the Bedrock

Below the Site

T&C Again Failed to Adequately Consider the Impact ofVertical

Flow ofContaminants on the Site

T&C Has Failed to Protect Against the Vertical Flow of

Contaminants on the Site, and the City’s Condition Requiring

Grouting ofAll Fractures Does Not Alleviate That Deficiency

The Design and Location ofthis Landfill is Not Protective of the

Public Health, Safety and Welfare Because it is Located Directly

Within the Fractured Aquifer Which Will Not Be Adequately

Monitored

T&C Failed to Include Sensitivity Analyses in its Application and

Failed to Adequately Establish Inward Flow

The Kankakee City Council Again ImproperlyDeferred to the

IEPA Because ofthe Lack of Evidence Presented by T&C in its

Application

The City Council’s Finding that the Proposed Landfill Met

Criterion viii is

Against the Manifest Weight of the Evidence

The City Council Improperly and Erroneously Concluded that the

Solid Waste Management Plan Adopted by Kankakee County was

Invalid

The City Council’s Finding that the County Plan was Consistent

with the Proposed Facility was Against the Manifest Weight of the

Evidence

T&C’s Proposed Facility is Not Contiguous to the

Kankakee County Landfill

The “Existing Facility” Referred to in the Amendments is

Clearly the Kankakee County Landfill Owned by Waste

Management

The Kankakee County Waste Management Plan is Clearly

Unambiguous

There Is No Evidence That An Independent Entity Prepared The

Property Value Protection Program Contained Within The

Application Or That The County Approved It

There Was No Evidence That Any Environmental Damage Fund

Or Insurance Was Accepted, Or Even Offered To The County, For

Approval, Nor Was A Domestic Water Well Protection Program

Submitted To Be Approved By The County

III.

THE CITY COUNCIL PROCEEDINGS WERE FUNDAMENTALLY

UNFAIR

Facts

Improper Communications Of The Applicant And Collusion With

The City Council That Occurred After The Last Application Was

Approved And Before It Was Refiled On March 7, 2003

Testimony Of Hearing Officer Boyd Re: Improper Procedures And

Ex Parte Communications

Testimony of Attorney Bohlen Regarding Substantive and

Prejudicial Ex Parte Connnunications, Pre-adjudication of the

Merits and Improper Procedures

Testimony Of Ronald Yarborough Re: His Communications With

Applicant And The Secret Opinion Testimony He Provided To The

City

Stipulated Testimony Of City Clerk Anjanita Dumas

Improper Communications And Evidence Of Pre-Adjudication

That Occurred Before The Filing Of The March 13, 2002

Application

Argument

Overview

The City Council PreJudged The Merits Of The Application, Had

Improper Communications and Employed Unfair Proceedings

The City’s Prior Refusal To Follow The Evidence At The

2002 Hearing Is In Itself Evidence Of Pre-Adjudication Of

The Merits

The City And The Applicant Continued Their Course Of

Improper Conduct After The August 19, 2002 Approval By

The City And Before The Applicant Refiled On March 7,

2003

Improper Communications

ii.

The Applicant Acted On BehalfOf The City

Attorneys And Staff In Retaining A Consulting

Expert

iii.

The City Of Kankakee Sued The County In An

Effort To Keep The County From Continuing Its

Opposition To The City’s Attempts To Site A

Landfill

111

iv.

The City Filed A Civil Action Against The County

Seeking To Enjoin The County From Defending Its

Solid Waste Management Plan At The City’s Siting

Hearing

The City Attorneys ImproperlyRepresented The City

Council While At The Same Time Representing The City

StaffAnd Advocating In Favor Of The Application

The City Attorney Had Improper Ex Parte Communications

With The Hearing Officer

The City ofKankakee had Improper Ex-Parte

Communications with the Hearing Officer

The City Attorneys and the Hearing Officer Improperly

Misled the Decision Makers and the Parties into Believing

that the Hearing Officer’s Proposed Findings ofFact and

Conclusions of Law was his own Independent Work

Product

The Proposed Findings of the Hearing Officer were Never

Put Into the Public Record

The Hearing Officer did not Have Access to the Entire

Record for Drafting his Proposed Findings ofFact that

were Relied upon by the City Council

The Proposed Findings ofFact ofthe Hearing Officer were

Fundamentally Unfair as it Heavily Relied Upon an

Opinion Report ofDr. Ronald Yarborough, which the

Hearing Officer Never Saw

100

The City Council Improperly Relied upon the Reports of

Dr. Ronald Yarborough which were not put in the Record

Before it Closed

100

The Certificate ofRecord prepared by the Circuit Clerk for

the City ofKankakee Erroneously Indicates that the

Additional Public Comment Filed by Kankakee County

was “Filed After the Record Closed Without Leave”

103

The Findings of Fact and Conclusions of Law which were

Signed by the Mayor were Never Duly Considered or

Properly Voted Upon by the City Council

103

City of Kankakee’s Failure to Follow its own Siting

Ordinance was Fundamentally Unfair

107

There were Extensive Improper Communications Between

the Applicant and the Decision Maker Before the Original

Application was filed on March 13, 2002

108

The Proceedings were Fundamentally Unfair Because the

City Council Once Again Ignored Irrefutable Evidence that

Criteria ii and viii Were Not Met

108

IV.

CONCLUSION

109

POST HEARING BRIEF OF PETITIONERS, COUNTY OF

KANKAKEE

AND

EDWARD IL SMITH

NOW COMES Petitioners, COUNTY OF KANKAKEE and EDWARD D. SMITH, and

as and for their Post-Hearing Brief, states as follows:

I. THE CITY OF

KANKAKEE

DID NOT HAVE

JURISDICTION TO HEAR THE LANDFILL SITING APPLICATION.

The March 7, 2003 Application was Substantially the Same as the Application Filed

on March 13, 2002, Which was Disapproved by the Illinois Pollution Control Board

for Failing to Meet Criterion ii.

The authority ofthe City of Kankakee (“City”) to hear the request of the applicant, Town

and Country Utilities, Inc. (“T&C”) is derived solely by a legislative grant set forth in Section

39.2 of the Illinois Environmental Protection Act (“the Act”).

415

ILCS

5/39.2

(2002);

Turlek v.

Village of Summit,

PCB 94-19, 94-21, 94-22, Slip op. at 3 (May 5, 1994);

Daniels v. Industrial

Commission,

201 Tll.2d 160, 165 (2002);

City ofElgin v. County of Cook,

169 Ill.2d

53,

61, 64-

(1995). Section 39.2(m) ofthe Act prohibits the City

from

hearing a siting application, which

is substantially the same as one that was disapproved within the preceding two years. 415 ILCS

5/39.2(m).

Section 39.2(m) ofthe Act provides:

An Applicant may not file a request for local siting approval which is

substantially the same as a request which was disapproved pursuant to a finding

against the Applicant under any criteria (i) through (ix) of subsection (a) of this

Section within the preceding two years.

415 ILCS 5/39.2(m).

Furthermore, Section 7(c) of the City of Kankakee Pollution Control Facility Siting

Ordinance 2003-11 provides:

An Applicant may not file an application for site location approval which is

substantially the same as a request which was disapproved, pursuant to a finding

against the Applicant under any criteria (1) through (9) of Section 6(e), above and

with Section 39.2(a) of the Act, within two years.

See City of Kankakee Siting Ordinance attached hereto as Appendix A. The

ordinance has also been filed with the PCB as public comment.

The two year prohibition against refihing a substantially similar application begins to run

on the date that the prior application is disapproved by the local governing body or the PCB.

Laidlaw Waste Systems v. Pollution Control Board,

230 Ill.App.3d 132, 136, 595 N.E.2d 600,

602-603 (5th Dist. 1992; see also

Turlek,

Slip Op at 6 (noted that Section 39.2(m) would have

applied if the PCB had remanded based on failure to satisfy criterion). An application does not

have to be identical to a prior application to be disallowed under Section 39.2(m); rather, it need

only be substantially the same.

Worthen v. Village of Roxana,

PCB 90-137, Slip op. at 5 (Sept.

9, 1993). The question ofwhether an application is substantially the same is to be determined by

reviewing the two applications and assessing whether there are sufficiently significant

differences between the applications.

Laidlaw Waste Systems Inc. v. Pollution Control Board,

230 Il1,App.3d 132, 136,

595

N.E.2d 600, 602-03 (5th Dist. 1992).

The application filed on March 7, 2003, by Town & Country was substantially the same

as the application filed on March 13, 2002 with the City ofKankakee, which was disapproved by

the PCB on January 9, 2003 for failing to meet criterion ii.

County of Kankakee v. City of

Kankakee,

PCB 03-31, 03-33, 03-35, Slip. op at 27-28 (Jan. 9, 2003), (hereinafter,

“Town and

Country”).’

The evidence presented at the Section 39.2 hearing clearly established that the

applications were substantially similar and, therefore, the City of Kankakee did not have

jurisdiction to hear the application filed on March 7, 2003. During the pendency of the hearing,

The County of Kankakee incorporates by reference as though stated verbatim hereinthe motion to dismiss

the application for local siting filed by Waste Management, Inc. at the Section 39.2 hearing and which was

adopted orally by the County of Kankakee during the Section 39.2 siting hearing. The County further

adopts any and all arguments it raised concerning this issue in the post hearing brief of the County of

Kankakee and its proposed findings of facts and conclusions of law. (PCB II, 0626-1666).

two of T&C’s own witnesses, Devin Moose and David Daniel, conceded that the design of the

landfill was substantially the same, the location of the landfill is exactly the same, and the

operating plan of the landfill is substantially the same. T&C II, 6/26/03

Tr.

Vol. 3-A, 41, T&C

11,6/26/03 Vol. 3-B, 117.

The 2002 application, the public hearing transcripts and exhibits developed for the

application are included verbatim in the 2003 application. See T&C II, App., cover letter to A.

Dumas, dated March 7,2003; PCB II, Pet. Ex. 22)? At the commencement ofthe siting hearing,

Waste Management and the County moved to dismiss the application because the 2003

application was substantially the same as the 2002 application. The Hearing Officer, Robert

Boyd, denied the motion, but made it clear that “at this stage I am not prepared based on what I

have read and what I have heard to find the current application is substantially the same as the

previously filed application.” T&C II, 6/24/03 Tr. Vol. 1-A, 51(emphasis added). During the

siting hearing itself, it became blatantly obvious that indeed the applications were substantially

the same. Specifically, in addition to the admission by the Applicant’s own expert witness that

the design, location and operating plan of the landfill were all substantially the same, additional

evidence was admitted by the parties establishing that the design was the same in all material

respects and in particular, as follows:

The inward hydraulic gradient was the same T&C II, 6/26/03 Tr. Vol. 3-A, 30.

The Capacity of the landfill proposals are the same.

(50.9

million cubic yards).

Id,

at 28.

The waste footprint of both proposals are the same at 236.3 acres.

Id.

at 29.

The transcripts to the Section 39,2 siting hearings in front of the City Council or the City of Kankakee will

be cited as T&C I or T&C II, by the date of the hearing, the volume of the transcript; and the page of the

testimony. For example, “T&C 11, 6/26/03 Tr. Vol. 30-A, 33”. The transcripts for the Section 40.1 Illinois

Pollution Control Board hearings will be cited as PCB I or PCB II and by the date of the hearing and the

page number of the testimony. The Exhibits to the City of Kankakee siting hearings will be referenced

T&C I or T&C II and the exhibit number. The exhibits to the IPCB hearing will reference PCB I for the

2002 hearing and PCB 11 for the 2003 hearing.

The composite liner of three foot compacted soil and 60 millimeter geomembrane was

the same for both proposals.

Id.

at 30-31.

The liner system keyed into the bedrock was the same.

Id.

at 33.

The excavation of liner grades were the same.

Id.

The leachate collection system was the same.

Jd.

at 32;

The landfill gas management and monitoring system was the same.

Id.

The final contours and cover configuration were the same.

Id.

10.

The storm water management system was the same.

.at 29.

11.

And the groundwater monitoring system was the same. T&C II, 6/25/03 Tr. VoL 2-A,

54-59.

The location of the landfill was exactly the same as proposed in the 2002 application.

T&C II, 6/26/03 Tr. Vol. 3-A. 28. The legal description and size of the property was exactly the

same.

Id.

The proposed operation with the receipt of3500 tons of waste per day was the same.

Id.

at 29-33, 64. Even the reports that were included with the re-filed application were exactly

the same as the 2002 application with regard to Criteria iii, iv, vi, vii, and ix. T&C II, 6/24/03

Tr. Vol. 1-B, 15-15, 24-25, 36.

As to criterion i and ii, the Applicant included some additional text in its reports which

referenced some minor additional data regarding hydrogeologic conditions, service area waste

capacity and waste generation. However, this information was merely offered to support the

very conclusions, which were reached in the 2002 Application and did not alter the application in

any significant way. To the contrary, the only differences between the 2003 application

compared with the 2002 application is that the refiled application contained an “optional”

geosynthetic clay liner (CCL) and it involved a slight reduction in the service area.

First, the “optional” GCL composite was not even recommended by the Applicant. That

CCL composite was not a double composite liner as described in Representative Novak’s

proposed legislation. T&C IL 6/26/03 Tr. Vol. 3-A, 42-46. Further, T&C’s experts testified that

the CCL composite was neither necessary nor appropriate for the facility. T&C II, 6/26/03 Tr.

Vol. 3-A, 38-42. In fact, the four mil. geomembrane which was mentioned by the Applicant

(while at the same time indicating that it was uimecessary) is not even being manufactured.

T&C II, 6/26/03 Tr. Vol. 3-A, 48. The CCL composite was simply offered as an alternative to a

double composite liner in the event the City felt inclined to impose a condition requiring some

additional protection beyond the linerproposed by T&C. T&C II, 6/26/03 Tr. Vol. 3-A, 39-42.

As it turned out, the City followed T&C’s recommendation and did not impose a

condition that the four mil. CCL be utilized, nor any condition relating to a double composite

liner. Therefore, any reference in the application concerning the optional CCL is mere

surplusage, as it is not included in any design that was approved by the City of Kankakee.

Obviously, a design feature which is not proposed or recommended by the Applicant, is not

imposed as a condition by a siting authority, and will not be included in the final landfill design

does not constitute a substantial change in the application.

Similarly, the reduction in the size of the service area is not a significant change in the

2002 application. While the Applicant touted the change as a 40 reduction in the geographic

size of the service area, it actually only represents a 4

reduction in the amount of waste

generated in the service area. T&C II, 6/24/03 Tr. Vol. 1-B, 48. Furthermore, the reduction in

the volume of waste generated in the service area does

in any way affect the amount of waste

that T&C intends to accept each day, or the capacity of the landfill or its operating life. The

change in the geographic size of the service area will have absolutely no positive impact upon

the landfill. Therefore, the change in the service area in no way affects the fact that the landfill

was disapproved by the PCB for failing to meet Criterion ii. The Applicant still intends to accept

3,500 tons of waste per day, with a facility capacity of 50.9 million cubic yards and a site life of

30 years. Therefore, it is obvious that this very minor change in the service area does not affect

the fact that the Application is substantially the same.

Although T&C did make slight changes to the section of its Application concerning

criterion viii, those changes were merely necessitated by the County of Kankakee’s amendment

to its Solid Waste Management Plan (“Plan”). Merely responding to a change in the County’s

Solid Waste Management Plan does not render an application sufficiently different so as to avoid

the effect of Section 39.2(m). Tn fact, T&C is arguing, just as it did in its 2002 application that

somehow the language in the Plan is ambiguous, such that it is unclear whether the County

wanted to limit the landfilling within its borders to the expansion of the existing landfill. This is

the exact same tactic that was taken in regard to the March 7, 2003 application and, thus, the

applications are substantially the same.

The Applicant’s own chief engineer, Devin Moose, admitted that the location, operating

plan and design are substantially the same. T&C II, 6/26/03 Tr. 3-A, 41. The Applicant has only

added some additional soil borings taken at the site in an attempt to bolster its 2002 application.

However, as discussed

infra

in regard to criterion ii, these additional borings do not in any way

change the fact that this particular site is not designed to protect the health, safety and welfare

and, indeed, these borings did not address the deficiencies that were raised by the PCB in

reversing the City Council’s prior approval of the application. In fact, the Applicant once again

attempts to mischaracterize the results of these borings by indicating that the dolomite below the

landfill will act as an aquitard. A close review of the boring results establishes that such a

conclusion cannot be reached, and the Applicant skewed its findings as to the hydraulic

conductivity ofthe bedrock. (See criterion ii discussion below). Merely adding some additional

underlying data in support of an application does not result in any substantial difference between

the two applications. If such could be the result, then an applicant could always avoid the import

of Section 39.2(m) merely by running additional repetitive soil borings at a site or re-running

tests on borings that were already done, or performing some other meaningless task in an effort

to mask the fact that an application is substantially the same.

The

Worthen

ease establishes what is necessary for an Applicant to prove that its

application is different from a previous application.

Worthen v. Village ofRoxana,

PCB 90-137

(Sept. 9, 1983). In

Worthen,

the PCB upheld the Village of Roxana’s finding that a 1987

application for

154

acre landfill expansion filed by GSX Corporation was not substantially the

same as a 1990 application for a 94 acre landfill expansion filed by Laidlaw Waste Systems.

Worthen,

Slip op. at 6. In

Worthen

significant differences were involved, including the fact that

the Applicant was different, the size of the expansion was substantially different (159 acres

versus 94 acres), the liners were different (10 foot clay versus composite liner), the location of

the facility was different (in that the new facility was proposed to be a horizontal and vertical

expansion as opposed to just a horizontal expansion), and the design of the facility would be

substantially different (in that the latter application incorporated ground water drainage systems,

gas flaring system, a monitoring plan, and a recycling eomposting facility, all of which were not

included in the first application).

Id.; Village of Roxana

resolution dated March 1, 1993 at 3-5.

Furthermore, the

Laidlaw

application contained numerous analyses that were not part of the first

GSX application, including a needs analysis with data on population increases; a solid waste

needs assessment; an earthquake analysis; a real estate evaluation study and a description of the

characteristics ofthe surrounding area.

Id.

Unlike the application at issue in

Worthen,

the 2003 application here is proposed by the

exact same Applicant, and it is for the exact same location, size, design and operation as

proposed in the 2002 application. Though there are some very minor differences between the

2003 and 2002 applications, these are in no way material or substantive differences. Section

39.2(m) does not require that the two applications be exactly the same. It is difficult to conceive

of a situation where the two applications could be more substantially the same than those at issue

in this case other than an applicant merely refiling the exact same application.

Obviously, the purpose of Section 39.2(m) is to avoid the unnecessary financial and

personal drain upon the resources of the public, as well as the siting authority. This case is a

perfect example of why the 39.2(m) must be followed. At the first Section 39.2 siting hearing

there were literally hundreds ofpeople that wanted to attend or participate, such that scores of

people were unable to hear the first night of the proceedings due to a lack of seating capacity of

the hearing room. However, after the lengthy appellate process of

Town & Country I

and the re-

filing of

Town & Country II,

at the second hearing, only a handful of the most diligent objectors

were able to take the time out oftheir lives to attcnd the renewed siting hearings. An Applicant

should not be allowed to obfuscate the testing of its application merely by turning the process

into a marathon whereby a well heeled applicant continues to chum the process until all of the

objectors fall from exhaustion.

The Applicant’s own attorney, Mr. George Mueller, provided an astute definition of a

substantive change to an Application. Section 39.2(e) of the Act provides that “at any time prior

to completion by the Applicant of the presentation of the applicant’s factual evidence, the

applicant may file not more than one amended application upon payment of additional fees.”

415

TLCS

5/39.2(e).

During the course of the hearing, the County sought a ruling from the City

Council that certain testimony by an Applicant’s witness relating to sensitivity analyses which

were not included within the application constituted an amendment, as contemplated by Section

39.2(e). The Applicant’s counsel argued that inclusion of the sensitivity analyses in oral

testimony (when they have not been physically included in the application) was not an

amendment to the application on the grounds that “to the extent that it doesn’t change the design,

that it doesn’t change the proposal, it is not an amendment to the application” (T&C II, 6/28/03

Tr. Vol. 5-A, 59). (Emphasis added). Using the Applicant’s own definition, the scant additional

borings that were included in the application by the Applicant did not change its design or its

proposal and, thus, did not even constitute an amendment of the application under Section

39.2(e). Thus, clearly the application filed on March 7, 2003, which in no way changes the

design, operating plan, or location ofthe landfill, is substantially the same as the application filed

on March 13, 2002, and the City Council did not have jurisdiction to hear the landfill application.

Accordingly, the City Council decision should be reversed by the PCB.

The City of Kankakee Did Not Have Jurisdiction Because the

Applicant Failed to

Send

Proper 39.2(b) Notices.

Facts

The Chief County Assessment Officer for Kankakee County, Sheila Donahoe, was called

as a witness at the Section 40.1 Illinois Pollution Control Board (PCB) hearing in this matter.

PCB II, 12/2/03 Tr. 52. Ms. Donahoe performed a search of the authentic tax records for Parcel

13-16-23-400-001 (also referred to as the Bradshaw Farms or the Bradshaw/Skates property) to

determine the identities of the owners of that property.

Id.

53.

She reviewed the property

record card that is contained in the computer database shared between the Assessor’s and

Treasurer’s/Tax Collector’s office.

Id.

53,

62; PCB II, Pet. Ex. 9, and attachments. The

owners of the property which appear in the authentic tax records are Gary Bradshaw, James

Bradshaw, Jay Bradshaw, Ted Bradshaw, Denise Fogle and Judith Skates.

Id.

55,

6 1-62; PCB

II, Pet. Ex. 9.

The authentic tax records show the address of Gary Bradshaw, James Bradshaw, Jay

Bradshaw, Ted Bradshaw and Denise Fogle as 22802 Prophet Road, Rock Falls ,Illinois. The

address of Judith Skates is identified by the authentic tax records as 203 South Locust Street,

Onarga, Illinois. Those addresses have been the same since Mr. Volini performed his search

around February 7, 2003 through today’s date.

Id.

at 56.

Also within the computer database is a scanning of an address change card for Judith

Bradshaw Skates, to the Onarga, Illinois address which was scanned into the system on March 7,

2002.

Id.

at 62. Once an address change card is scanned into the computer, the specific owner’s

address is also changed in the shared database.

Id.

Ms. Skates could ii~have changed the

address of the other owners because the County would not have adjusted any of these addresses

unless Ms. Skates held a power ofattorney or actual authority to do so.

Id.

at 62-63.

The affidavit of Mark Frechette, who is the treasurer ofKanicakee County and

cx officio

tax collector, was filed as public comment. PCB II, H.O. Ex.1, PCB II Pet. Ex. 10. Mr.

Frechette confirmed that he reviewed the authentic tax records for the County which showed that

the property was owned by Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw and

Denise Fogle, who all had a Rock Falls address and Judith A. Skates, who had an Onarga,

Illinois address. He also attached the computer printouts in the shared database which identify

all ofthe owners for that property. Finally, Mr. Frechette indicated that at no time did his office

ever indicate to anyone that the address of Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted

Bradshaw or Denise Fogle was anything other than the Rock Falls address.

Mr. Tom Volini testified that he understood that the Treasurer and Assessor’s Office

shared a database. PCB II, Pet. Ex. 23, p. 48. He never sent any Section 39.2(b) notices to

22802 Prophet Road, Rock Falls, Illinois.

Id.

at 49. The record is also clear that he sent two

notices to Ms. Skates at her Onarga address and one such notice was addressed only to Ms.

Skates and the second notice was referenced the five other owners’ names but was sent

“do

Judith Skates.” T&C II App, Appen. B, Exs.. A&C.

Mr. Volini was specifically asked whether he determined if there were any conflicts

among the records maintained by the Clerk’s office, the Assessor’s office, or the Treasurer’s

office regarding the ownership of the property in the County. He essentially refused to answer

that question, and never identified any specific conflict or inconsistency.

Id,

at 71-76. Mr.

Volini eventually conceded that he had no information that the Kankakee County Assessor

deleted the names of James Bradshaw, Jay Bradshaw, Ted Bradshaw and Denise Fogle as

owners ofthe Skates property.

Id.

at 82.

Judith Skates and each of the other owners of the Bradshaw property filed affidavits in

this case. PCB II, HO. Exs. 2-7. These affidavits establish that Ted Bradshaw, James

Bradshaw, Jay Bradshaw, Gary Bradshaw and Denise Fogel never received any Section 39.2(b)

notices.

Id.

Ms. Skates did not forward the notice to her siblings, and each of them would have

appeared and participated, or at least filed public comment, in opposition to the landfill, if they

had known the proceedings were taking place.

Id.

Argument

Section 39.2(b) requires that:

No later than fourteen days prior to request for location approval, the Applicant

shall cause written notice of such request to be served either in person or by

registered mail, return receipt requested on the owners of all property within the

subject area, not solely owned by the Applicant, and on the owners of all property

within 250 feet in each direction of the lot line of the subject property, said

owners being such persons or entities which appear on the authentic tax records of

the County in which such facility is located, provided, that the number of all feet

occupied by all public roads, streets, alleys, and other public ways shall be

excluded in computing the

250

feet requirement, provided further, that in no event

shall this requirement exceed 400 feet, including public streets, alleys, and public

ways. 415 ILCS 5/39.2(b)(2002).

If an owner is identified on the authentic tax records then that owner must be provided

with the applicable pre-fihing notice.

Wabash and Lawrence County Taxpayers and Water

Drinkers Association

Pollution Control Board,

198 IlLApp.3d 388,

555

N.E.2d 1081(5th Dist.

1990). The notice ofrequirements of Section 39.2(b) are jurisdictional pre-requisites which must

be strictly followed to vest the City with power to hear a landfill proposal.

Kane County

Defenders, Inc. v. Pollution Control Board,

139 Ill.App.3d 588, 593, 487 N.E.2d 743, 746 (2d

Dist. 1985);

Town & Country I,

Slip. Op. 16 (Jan,

2003);

City ofKankakee, et aL v. County of

Kankakee and Waste Management of Illinois,

PCB 3-125, 133, 134, 135, Slip op. 14 (Aug.

2003). The question of whether or not a local siting authority had jurisdiction is a question of

law and is reviewed

de novo

by the PCB.

City of Kankakee v. Waste Management,

PCB 03-125,

133, 134, 135, slip op. 14. Section 39.2(b) has three distinct elements. “First, property owners

listed on the authentic tax records must be served notice. Second, property owners who own

property within 250 feet of the tot line ofthe proposed facility must be notified. Third, service

on those property owners must be effectuated using certified mail return receipt or personal

service.”

Id.

at 14-15.

City ofKankakee v. Waste Management,

the PCB explicitly found, just this year, that

even though an Applicant made nine separate attempts to serve an owner of a parcel of property

and effectuated service through a spouse who lived at the same residence and co-owned the

property, the failure to send a separate notice to each owner resulted in the County of Kankakee

not having jurisdiction to hear Waste Management’s application.

Id.

In that case, the Applicant

attempted to serve Robert and Brenda Keller, who were co-owners of a parcel ofproperty and

entitled to notice. The PCB found that because only Mr. Keller was sent a certified mailing,

Mrs. Keller was not sent a mailing that no service was affected upon her and, therefore, the

County of Kankakee lacked jurisdiction.

id.

at 15-16.

The PCB rejected the argument that under the

Wabash

case service was effective when

accomplished upon only one property owner listed on the authentic tax records. The Court noted

that in

Wabash

only the property owner that was served was listed by name on the tax records.

Id.

at 16, The only exception that the PCB has recognized is where the County’s authentic tax

records are contradictory as to who is an owner of a parcel of property.

Id.

(citing

Town &

Country I)

Therefore, if the authentic tax records clearly indicate that there is more than one

owner ofthe property, each owner must be served.

Id.

T&C submitted its pre-fihing notices as Appendix B to its March 7, 2003 application.

T&C II App., Appen. B. Attached to Appendix B is the affidavit of Mr. Thomas A. Volini

which provides that he used a Sidwell map of the surrounding area to determine the parcel

identification numbers of all parcels within 400 feet of the lot line of the subject property.

Id.

Affidavit, Par. 5. Volini asserts he then consulted the office of the Kankakee County Supervisor

of Assessments, and “obtained the identity and addresses of the owners of each parcel” and the

results of his search are disclosed on Exhibit A, attached to Mr. Volini’s affidavit.

Id.

The Applicant Failed to Send Notices to Each of the Owners of Parcel

No. 13-16-23-400-001.

It is undeniable that the authentic tax records at issue in this case clearly identify six

different owners to Parcel No. 13-16-23-400-001. See T&C II App., Append. B, Ex. A; see also

PCB II, 14.0. Exs. 2-7; see PCB II, Pet. Ex. 9

and attachments; PCB 11, 14.0. Ex. 1, and the

attachments; PCB II, Pet. Ex. 10; PCB II. 12/2/03 Tr. 53-55. Mr. Volini himself identified Gary

Bradshaw, James Bradshaw, J.D. Bradshaw, Ted A. Bradshaw, Denise Fogle and Judith Skates

all as owners of this parcel of property. T&C II App., Append. B, Ex. A. However, for some

reason, Mr. Volini only sent notice to Ms. Judith Skates by way of two mailings to her Onarga,

Illinois address. One mailing was addressed only to Ms. Skates and the other mailing referenced

all of the names of the other owners on the return receipt “c/o

of’

Ms. Skates.

at Ex. C.

Mr. Volini never interviewed Judith Skates to determine if she was indeed the agent for

service ofprocess ofGary Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw, or Denise

Fogle. PCB TI, Pet. Ex. 23, pp. 49-50. He further never determined the actual addresses of any

ofthese people.

Id.

at 51.

The testimony and affidavits of the Supervisor of Assessments for Kankakee County,

Sheila Donahoe, and the Treasurer/Tax Collector, Mark Frechette, clearly provide that the two

offices share a computer database which lists all six owners of the parcel of property. PCB II,

Pet. Exs. 9,10; PCB II, H.O. Ex. 1. Thus there is no “conflict” in the assessor’s records when

compared to the Treasurer/Tax Collector’s records

because they are the same records. Those

records identify six owners of the parcel ofproperty and Mr. Volini only served one owner.

Section 39.2(b) requires that the identity of every owner of the parcel of property be

determined by the authentic tax records. 415 ILCB 5/39.2(b) (2002). In this case, the Applicant

undeniably failed to send a separate notice to each landowner of the Bradshaw/Skates property as

identified in the authentic tax records, as required by

City of Kankakee v. Waste Management

and 39.2(b).

Section 39.2(b) at no time provides that the addresses of an owner are to be

determined by the authentic tax records; rather the requirement is that the identities ofthe owners

be determined by the authentic tax records.

415

ILCS 39.2(b)(2002). In this case, all six owners

were identified by Mr. Volini

—

but he only served one ofthem. Furthermore, the Applicant did

not even send any notice to the Rock Falls address, which was the last known address of Gary,

James, Jay and Ted Bradshaw as well as Denise Fogle, as identified by the authentic tax records

of Kankakee County. Furthermore, the Affidavit of Judith Skates makes it absolutely clear that

she was not the agent for service ofprocess by her siblings and co-owners of the property. PCB

II, H.0. Ex. 3. Ms. Skates did not forward the notice that she received on to her siblings.

Id.

Each of the siblings testified by affidavit that they are an owner of the property and did not

receive any 39.2(b) notice and that they would have liked to have had the opportunity to

comment or participate in the public hearings as each was opposed to the development of the

landfill near the property that they own. PCB II, HO. Exs. 2, 4, 5, 6, and 7.

The Applicant’s only defense to failing to notify all of the owners is Mr. Volini’s

assertion that when T&C was attempting to notify owners regarding its 2002 Application that the

secretary of the attorney representing the Applicant (who also claims to be a process server) went

to the Rock Falls address and was informed by an unnamed individual that none of the owners of

the 13-16-23-400-001 property lived at that residence. PCB II, Pet Ex. 23,

p.50.

This unnamed

person also allegedly told the secretary that tax notices were to be sent to this unnamed person’s

mother, Judith Skates, at her Onarga address.

Id.

It is based upon this single conversation which

took place in connection to the 2002 application, and not the 2003 application, that Mr. Volini

decided to only send the pre-filing notice to Judith Skates at her Onarga address and did not

attempt to find any of the other owners of the parcel of property. Mr. Volini did not even send

certified mail notice to the last known address via the authentic tax records, which was 22802

Prophet Road, Rock Falls, Illinois. PCB II, Pet. Ex. 23, p. 51,

It is likely that the applicant ~.villtry to argue that the PCB has already determined in

Town & Country I

that service upon only Judith Skates of the pre-filing notices is proper.

However, in

Town & Country I,

the Board’s conclusion was based upon the testimony of Mr.

Volini that there was a conflict in the in the records held by the Treasurer and the Supervisor of

Assessments.

Town

Country I,

Slip. op. at 16-17. However at Town & Country II, the

Supervisor of Assessments testified clearly (and the Treasurer/Tax collector agrees) that there

was no conflict when Mr. Volini performed his 2003 search because the Treasurer and Assessor

share a database which clearly identifies that there are six owners to the property. PCB II, Pet.

Ex. 9; PCB 11, Pet. Ex. 10; PCB II, H.O. Ex. 1; PCB 1112/2/03 Tr.

54-55.

Furthermore, there was absolutely no conflict of the records of the Treasurer and the

records of the Supervisor of Assessment as to the last known address of Gary L. Bradshaw,

James R. Bradshaw, Jay D. Bradshaw, Ted A. Bradshaw and Denise Fogle was 22802 Prophet

Road, Rock Falls, Illinois 61071. PCB II Pet. Exs. 9, 10; PCB 1112/2/03 Tr.

55-56,

HO. Ex. I

Section 39.2(b), as well as the

City of Kankakee v. Waste Management

case, clearly

require that each of these owners be served notice by either certified mail or personal service. In

this case the Applicant had no reason to believe any of the five other owners lived with their

sister in Onarga, Illinois. In other words, five out of six of these owners were not sent any notice

whatsoever. The Applicant admits that he has no idea what their addresses were and did not

make any effort whatsoever to determine their actual addresses. PCB II, Pet. Ex. 23, pSi.

Adding insult to injury, the Applicant did not even send certified mail receipts to their last

known addresses as identified by the authentic tax records.

It is anticipated that the Applicant will argue that the authentic tax records somehow

suggest that Section 39.2(b) notices may be sent only to Judith Skates at her Onarga address

because the Supervisor ofAssessment’s computer program has mailing flags indicating that Gary

Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw and Denise Fogle were not to be sent

the tax bill, nor any delinquent notice, exemption notice or change notice. (PCB II, Pet. Ex. 9

attachments). The records do indicate that Judith Skates was to be sent the tax bill, any

delinquent notice, exemption notice and change notice.

The problem with the Applicant’s

argument is that Section 39.2(b) does not in any way provide that if someone has agreed that a

tax bill is to be sent to only one specific owner that somehow negates the responsibility of an

individual attempting to site a landfill from providing Section 39.2(b) notices to all other owners.

The fact that an owner has agreed to have his/her tax bill sent to a certain address does not

establish that the owner does not want to receive notice that someone intends to build a landfill

near the property owned by that individual. Indeed, the authentic tax records only identify that

certain specific notices need not be sent to those owners, and there is no reference that any other

notices, such as Section 39.2(b) pre-filing notices, are in any way being waived by a specific

landowner. PCB II, 12/2/03 Tr. pp. 83, 87. It is perfectly reasonable for the five owners ofthe

property to waive being sent a copy of the tax bill, but still insist on receiving the requisite

statutory notice when someone tries to build a landfill next door to their property. In fact, the

affidavits of each of these landowners clearly indicate they wished to receive pre-filing notices,

and they object to the City of Kankakee and the Applicant to attempting to develop a landfill

neaj their property without providing notice and an opportunity to respond.

It is particulary egregious that the Applicant failed to serve these five owners when this

particular parcel ofproperty was a hotly contested subject of

Town & Country I.

By the time the

application was refiled, the Applicant was well aware of Judith Skates’ address, and could have

sent a process server or an investigator to speak with her to determine the addresses of her

siblings. There could have been a variety of methods employed by the Applicant to determine

the addresses of the other owners, including but not limited to, receiving some type of an

agreement from those owners that Judith Skates could accept pre-fihing notices; At no time did

the Applicant ever attempt to acquire such an agreement and, instead, elected to ignore the fact

that six different people were identified as owning the parcel ofproperty and that notice was only

being sent to one owner. At a minimum, under

City ofKankakee v. Waste Management,

separate

notice should have been sent to each owner ofrecord at the Skates address.

It is clear that

City of Kankakee v. Waste Management,

3-125, 133, 134, 135, (Aug. 7,

2003)

is controlling, as the efforts employed by T&C to serve these owners were far less diligent

than those employed by Waste Management in regard to its application. In

City of Kankakee,

Waste Management not only sent a certified mailing to the very address where Mrs. Keller

resided with her husband, but also sent notices by regular mail directly to Mrs. Keller, attempted

personal service on five occasions and even firmly affixed a notice to the residence of Mrs.

Keller.

Id.

at Slip. op. at 14. In this case, the Applicant never sent notice to the last known

address of Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw or Denise Fogle.

Furthermore, Waste Management knew from the authentic tax records that Mrs. Keller actually

resided with Mr. Keller, and accordingly sent a certified mailing to that address.

Id.

This was

still found to be insufficient because two separate notices were not sent to that residence.

Id.

In this case, T&C had absolutely no evidence that these five owners resided with Ms.

Skates, and, regardless, T&C only sent one notice. Worse yet, Ms. VonPerbandt (T&C’s

purported process server) testified at

Town & Country I

that it was her understanding that these

owners did not reside with Mrs. Skates, and many of them were out of state. PCB I, 11/6/02 Tr.

286-287. Therefore, the Applicant actually knew that its notice would not be received by these

owners, but nonetheless sent it to the Onarga address anyway.

The Applicant cannot argue that somehow the decision in

Town & County I

res

judicata

to this issue. The Applicant has already argued that somehow this application is not

substantially the same as the first application and, therefore, this is a completely different matter

to which notice was required. Furthermore, in the underlying case, the Applicant improperly

suggested that there was some conflict between the Treasurer and the Assessor’s records when

indeed there was no conflict. Finally, the knowledge of the Applicant at the time it was

providing notice of the 2003 application was different than the knowledge that it had at the time

of the 2002 application in that the Applicant was undeniably aware that there were six owners,

and that they did not reside with Judith Skates. Because the Applicant failed to serve each owner

of the Bradshaw/Skates property, the City of Kankakee did not have jurisdiction to hear the

siting application, and the decision should be reversed.

The Applicant Did Not Effectuate Actual Service Upon Numerous

Owners of Property Entitled to Service.

As explained above, the Pollution Control Board has now unequivocally ruled that once

an Applicant identifies the owner of a property, the Applicant need only send that owner a

certified mail receipt at his present address and that service is effective upon sending even

without evidence of actual receipt.

City of Kankakee v. Waste Management,

Slip op. 14.

However, if at some point the appellate court or the PCB overrules the decision in the

City of

Kankakee v. Waste Management,

then the City still does not have jurisdiction because there is no

evidence ofactual receipt by numerous owners.

Return Receipts of Numerous Parcels Were Signed by

Individuals Other Than the Owner ofthe Property.

The Applicant failed to provide sufficient evidence that these owners of record, as

evidenced by the authentic tax records of the County, actually received the notice required by

Section 3 9.2(b). Specifically, notice was improper as to the following parcels:

The following Registered Letters to landowners were not signed by the addresses,

its agent or even an apparent family member:

Registered letter sent to Gary

Bradshaw, James R. Bradshaw, Jay D. Bradshaw, and

Denise Fogle, in care of Judith A. Skates was signed for by Judith Skates as addressee.

Registered Letter addressed to Linda Skeen was signed for by Coralee Skeen, who did

not declare herself as her agent. Coralee Skeen also signed for Registered Letters

addressed to Geraldine M. Cann, Shirley A. Marion, Delmar L. Skeen, Robert S. Skeen,

Norma 3. Stauffenberg, Judith M. Trepanier, and Skeen Farms, but did not declare herself

as agent for any of the above. Robert S. Skeen later signed for a Registered Letter

himself at 1590 W. 3500 5. Rd., Kankakee, IL 60901. Coralee Skeen had previously

signed a Registered Letter for Robert S. Skeen at that same address.

Registered Letter addressed to Willie Walker was signed for by Leslie Wilson, Jr., who

was not declared as an agent.

Paquette signed for Registered Letters addressed to David Ledoux, Rebecca Ledoux,

and Norman L. Paquette, but did not declare herself as an agent of them. E. Paquette did

sign for her own Registered Letter.

Registered Letters addressed to Frederick Forte and Mary Thompson were signed for by

Lana Forte, who did not declare herself as an agent of either.

Registered Letter addressed to Kankakee Federal Savings Bank was signed for by Karen

Clutz, who did not declare herself as its agent.

Registered Letters addressed to ICC Railroad and Illinois Central Railroad Co. Real

Estate Tax Dept. were signed for by R. Jedlinski, who did not declare himself as agent of

either.

Registered Letter addressed to Leland Milk was signed for by a third person who did not

declare himself as an agent.

Registered Letter addressed to Milo Fleming was signed for by Nancy Davenport, who

did not declare herself as his agent.

10.

Registered Letter addressed to Charles R. Burke was signed for by Mary Grace, who did

not declare herself to be his agent.

The following Registered Letters were sent to government personnel, but not

signed for by agents:

Registered Letter addressed to Pat Welch, State Senator, was signed for by L. Bland, who

did not declare herself agent.

Registered Letter addressed to Debbie Halvorsen, State Representative, was signed for by

Jeanne Mathy, who did not declare herself as her agent.

Registered Letter addressed to Lawrence Walsh, State Senator, was signed for by Beverly

Edman, who did not declare herself as his agent. The Registered Letter to Mr. Walsh was

not on the Notice List but was found in the return receipts.

Registered Letter addressed to John Novak, State Representative, was signed for by

Colleen Priebal, who did not declare herself as his agent.

The following Registered Letters were signed by apparent family relations, and

who were not declared or demonstrated to be agents:

Registered Letter addressed to Michael P. Belluso was signed for by Yolanda M. Belluso,

who did not declare herself as his agent.

Registered Letter addressed to Lawrence L. Horrell by was signed for by Patti Horrell as

addressee.

Registered Letter addressed to William Ohrt was signed for by Marilyn Ohrt, but she did

not declare herself as his agent.

Registered Letters addressed to Jeannine Kinkin and Russell Kinkin were signed for by

Danny Kinkin, who did not declare himself their agent.

Registered Letter addressed to Jill A. Hansen was signed for by Kevin Hansen, but he did

not declare he was her agent. A Registered Letter addressed to Kevin Hansen contained a

different address than it was addressed to: 876 E. 3100 N. Rd., Clifton, IL 60927, but it

was signed for by Kevin Hansen.

Registered Letter addressed to Bessie Jordan was signed for by Jake Jordan, who did not

declare himself as her agent.

Registered Letter addressed to Rose Perkins was signed for by Domesha Perkins, who did

not declare herself as her agent.

Registered Letter addressed to Louise Gutierrez was signed for by Adrian Gutierrez, who

did not declare himself as her agent. This occurred twice.

Registered Letter addressed to Donald Benoit was signed for by Barbara Benoit, who did

not declare herself as his agent.

On each of these parcels the box on the return receipt which indicates that the signor was

the agent of the addressee was not marked. Therefore, each such receipt on its

face,primafacic,

indicates the signor was not the agent of the addressee. No further documentation was submitted

by the Applicant to confirm either: (I) that the individual who did accept service for a specific

parcel was the authorized agent ofthe owners of that parcel; or (2) that the owners that appear in

the authentic tax records of the County actually received the pre-filing notice in a timely fashion.

The following were signed by individuals other than the owner, but the “agent”

box on the receipt was checked:

Registered Letter addressed to Minnie Creek Drainage District was signed for by Bret

Perreautt as agent.

Registered Letter addressed to Ron Thompson, Otto Township Supervisor, was signed

for by Betty Thompson as agent. A new address was indicated: 803 F. Rosanne Cir.,

Kankakee, IL 60901.

Registered Letter addressed to Dr. Shari L. Marshall, Superintendent of Schools for

Central Community Unit District #4, was signed for by Cindy Saxson as agent.

Registered Letter addressed to DOT was signed for by Patrick Woulfe as agent.

Registered Letter addressed to Mary K. O’Brien, State Representative, was signed for by

Mike McGuire as agent.

Registered Letter addressed to Katie Cooper was signed for by Charles Cooper as her

agent.

Registered Letter addressed to Randy Tobenski was signed for by Randy Tobenski as

agent.

Registered Letter addressed to John F. Mullin was signed for by Rita Mullin as agent.

Registered Letter addressed to Bret Perreault was signed for by Margaret Perreault as

agent. Also listed was a different address:

4527

5000

W, Kankakee, IL 60901

10.

Registered Letter addressed to Margie A. lartman was signed for by Gerald Hartman as

agent and addressee.

Though the “agent” box was checked on these return receipts, there was no testimony at

the hearing regarding whether the individual was the legally recognized agent for service of

process. Merely signing the return receipt card is insufficient to establish agency.

IEPA v. RCS,

Inc. and Michael DuVall,

AC 96-12, 1995 WL 747 694 (Dec. 7, 1995);

Trepanier ~ Board of

Trustees of the University of Illinois Chicago,

PCB 97-50

(Nov. 21, 1996)? Therefore, the

The NOB rejected this argument in

Town & Country I

based on

DiMaggio v. Solid Waste Agency of

Kankakee City Council was not vested with jurisdiction as the Applicant failed to show that the

owner or its authorized agent received the required pre-fihing notices and the City Council should

issue a finding that it had no jurisdiction.

The City Council Did Not Have Jurisdiction Because the Applicant Failed to Submit

a Complete Application.

Section 3 9.2(c) requires the Applicant to file a copy of its request with the municipality

and “tjhe proposal shall include the substance ofthe Applicant’s proposal.” 415 ILCS 39.2(c).

All such documents must then be made available for public inspection.

Id.

There is a

presumption of prejudice when an application and other required filings are not available to the

public.

American Bottom Conservancy

Village of Fairmount and Waste Management of

Illinois, Inc..

PCB 00-2000 (Oct. 19, 2000). The unavailability ofpublic materials required to be

filed as part of the siting application is fundamentally unfair.

Residents Against a Polluted

Environment v. County ofLaSalle,

PCB 96-243 (Sept. 19, 1996).

In this case, the Applicant failed to submit the sensitivity analyses which are necessary to

determine the accuracy of the assumptions that the Applicant made to conclude that the landfill

protected the public health, welfare and environment, including failing to file the sensitivity

analyses regarding the hydraulic conductivity of the dolomite beneath the landfill. Sensitivity

analyses were particularly important in this case because, as further discussed in regard to

Criterion ii below, the Applicant erroneously excluded from the calculation of the hydraulic

conductivity any dolomite that was within nine feet of the surface, even if that dolomite was

visually noted as being unweathered and competent. Therefore, the Applicant actually skewed

the hydraulic conductivity results of the dolomite beneath and surrounding the landfill.

Northern Cook County,

PCB

89-138

(Jan. 11, 1990). However, if

Town

Country

for

City ofKankakee v.

Waste

Management

are overturned, the

Ogle County

decision, which was decided by an Appellate Court of

Illinois, clearly establishes that actual service must be acquired.

Ogle

County,

272 Ill.app.3d 184, 649

N.E.2d

545.

As Engineer Schuh pointed out, even the tests performed by the Applicant actually

showed that the hydraulic conductivity of the bedrock on the landfill is highly variable with

variations up to 60,000 times. T&C II, 6/27/03 Tr, Vol. 4-B, 114-115. Mr. Schuh explained that

using a geologic mean without considering the sensitivity of that geologic mean, especially when

the variations are up to 60,000 times, could result in the analysis ofthe safety of the landfill in

“being way off.”

Id.

at 121. Furthermore, the Applicant only ran one specific gravity test on one

rock core to determine the primary porosity ofthe bedrock at the site of the landfill, rather than

considering the secondary porosity (i.e. the porocity through the fractures that the Applicant

determined do exist at the site by its angle borings). Ultimately, Mr. Schuh pointed out that the

porosity figure that was used by the Applicant was simply the wrong number.

Id.

at 125-126.

Furthermore, the Applicant failed to include any sensitivity analyses in regard to the bedrock

porosity.

Id.

at 126.

Mr. Schuh also pointed out that Applicant’s Exhibit G 31, clearly shows that the

groundwater flow is to the east, north and south, in other words it is variable at the site.

Id.

127-128. It is uncontroverted that the vertical gradient is twelve times greater than the horizontal

gradient.

Id.

at 133. However, the Applicant modeled the site as if there was no real vertical

gradient.

Id.

In fact, the lower gradient was not modeled at all, which should have been part of

the sensitivity analysis.

Jd.

at 133-134.

The Applicant did not perform sensitivity analyses for porosity, gradient, dispersion

coefficient, or leachate strength. T&C H 6/27/03 Tr. Vol. 4C, p.

15.

Mr. Schuh noted that even

with the non-conservative hydraulic conductivity assumptions used by the Applicant, the

application “exceed(s) some of the leachate parameters such that they would have to do

additional monitoring.”

Id.

at 16. Mr. Schuh was particularly concerned that if the Applicant

had performed the appropriate sensitivity analyses, the results could have been even worse than

were already found.

Id.

at 17. Mr. Schuh reiterated that “the point was that no sensitivity was

done on porosity and you don’t know what the number is, and you didn’t run any sensitivity

analyses to see what effect the model has by changing the porosity.”

Id.

at 35.

In response to the testimony of Mr. Schuh, the Applicant attempted to have its

hydrogeologic expert testify that certain sensitivity analyses were performed although they were

not included in the application. This testimony was the subject of extensive argument between

counsel on the grounds that if such analyses were so important to determine whether the health,

safety and welfare were protected by this proposal, then this data should have been included in

the application for review by the objectors, the City Council, and the interested public. PCB II,

6/28/03 Tr. Vol. 5-A, 38-62.

The only explanation offered by the Applicant for not providing such vital information

was that it would have involved four or five additional binders to the application.

Id.

at 62.

First, that is not a valid reason for an incomplete application. Second, the Applicant’s expert,

Mr. Drommerhausen, admitted that at a minimum he could have provided a short summary ofhis

results, and “in hindsight now, I think I would include it” in an application.

Id.

at 77. (Emphasis

added). Therefore, the Applicant’s own hydrogeologic expert admitted that the sensitivity

analyses in this case were imperative to the substance of the proposal and should have been

included the application.

Therefore, under Section 39.2(c) the application was incomplete, and the City of

Kankakee did not have jurisdiction.

II. THE CITY COUNCIL’S DECISION THAT THE

APPLICATION MET THE SECTION 39.2(A) CRITERIA

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

All of the statutory criteria set forth in section 39.2(a) of the Illinois Environmental

Protection Act (Act) must be satisfied before siting approval for a regional pollution control

facility may be granted.

Waste Management ofIllinois, Inc. v. Illinois Pollution Control Board,

160

Ill.App.3d 434, 442-43, 513 N.E.2d

592

(2d Dist. 1987);

L4.R.F. Landfill Inc. v. Pollution

Control Board,

174 Ill.App.3d 82, 90, 528 N.E.2d 390, 395 (2d Dist. 1988). If an applicant fails

to establish any one of the criteria, the application must be denied.

See Waste Management of

Illinois, Inc. v. Illinois Pollution Control Board,

175 Ill.App.3d 1023, 520 N.E.2d 682, 689 (2d

Dist. 1988).

Standard of Review

The Pollution Control Board must reverse the decision of a local siting authority if that

decision is against the manifest weight of the evidence.

Land and Lakes Co. v. illinois Pollution

Control Board,

319 Ill.App.3d 41, 743 N.E.2d 188 (3d Dist. 2000);

Industrial Fuels &

Resources/Illinois, Inc. v. Illinois Pollution Control Board,

227 I1l.App.3d

533, 592

N.E.2d 148

(1st Dist. 1992). A decision is against the manifest weight of the evidence if the opposite result

is clearly evident.

Land andLakes, 319

Ill.App.3d at 48, 743 N.E.2d at 191.

The Kankakee City Council’s granting of siting approval to T&C must be reversed

because the City Council’s decision was against the manifest weight of the evidence as T&C

failed to meet criteria (i), (ii) and (viii) set forth in section 39.2(a) of the Act.

Statement of Facts Regarding Criterion

ii and

viii

With respect to Criterion ii, five witnesses testified, three on behalf of T&C, one on

behalf of Waste Management and one on behalf of the County of Kankakee. Daniel

Drommerhausen, a hydrogeologist paid by T&C, was the first to testify with respect to criterion

ii. Mr. Drommerhausen admitted that there were fractures and possibly even joints in the

dolomite located below the proposed site, but he did not depict them on the diagram of the

proposed site contained in the application. T&C U, 6/24/03 Tr. Vol. 1-C, 24-25; T&C 6/25/03

Tr. Vol. 2-B, 21. Mr. Drommerhausen also admitted that the uppermost aquifer is hydraulically

connected to the competent dolomite. T&C II,

6/25/03

Tr. Vol. 2-A, 40. Mr. Drommerhausen

thrther admitted that there was a downward gradient measured at the site; however, he failed to

provide a calculation of vertical hydraulic conductivity in the application.

Id.

at 50, 74, 96; App.

2.2-43. Mr. Drommerhausen admitted that he failed to include any analyses in the Application

establishing that the downward vertical flow would become an upward flow after the landfill is

completed. T&C II, 6/25/03 Tr. Vol. 2-A, 97. He also failed to include any sensitivity analyses

in the Application.

Id.

at 87; T&C II 6/28/03 Vol. 5-A, 39.

Devin Moose, a civil engineer, was also retained by

T&C

to again provide testimony in

support of criterion ii of the Application. Mr. Moose testified that the only monitoring system

for the site would be located in the uppermost portion of the bedrock aquifer. T&C II, 6/25/03

Tr. Vol. 2-C, 11-12, 47-48. Mr. Moose explained that since T&C’s filing of its previous

application in 2002, additional testing showed that vertical fracturing exists in the bedrock below

the site. T&C II, 6/26/03 Tr. Vol. 3-A,

25.

Mr. Moose asserted that even though the dolomite

below the landfill may be considered an aquifer ‘in the big picture,” he testified that based on its

permeabilities at the locations he tested, the dolomite below the site ‘could be considered an

aquitard.’

Id,

at 74.

David Daniel, a professor, also testified on behalf of T&C with respect to criterion ii.

T&C II 6/26/03 Tr. Vol. 3-B, 40-41. Mr. Daniel testified that regionally dolomite is an aquifer,

but that the hydraulic conductivities of the dolomite below the proposed facility fell in gray areas

between an aquifer and aquitard.

Id.

54-55.

Nevertheless, Dr. Daniel stated that he would

probably characterize the area below the site as an aquifer.

Id.

55.

Dr. Daniel also admitted

that therewas presently a downward flow at the site,

Id.

at 116.

The County of Kankakee presented the testimony of a well-qualified engineer with

substantial experience in hydrogeological study and landfills, Mr. Jeffrey C. Schuh, P.E. T&C

II, 6/27/03 Vol. 4-B, 103-138; T&C 116/27/03 Vol. 4-C, 7-131. Mr. Schuh testified that he was

retained by the County to provide an honest and objective opinion regarding the safety of the

proposed landfill that would be presented in a public forum. T&C II, 6/27/03 Tr. Vol. 4-B, 109-

110, 112-113. Mr. Schuh found that T&C failed to adequately characterize the bedrock beneath

the landfill, which he explained is absolutely necessary in order to create a valid conceptual

model.

Id.

at 116. Mr. Schuh testified that in his professional opinion there was simply not

proper analyses performed by T&C for one to responsibly state that the landfill was safe. T&C

II, 6/27/03 Tr. Vol. 4-C, 18. Mr. Schuh explained that because no sensitivity analyses were

contained in application, it was impossible for T&C to establish that the landfill will protect the

public health, safety and welfare.

Id.

at 14-15. Based on the evidence presented, Mr. Schuh

concluded that T&C failed to provide sufficient evidence to demonstrate that the landfill was

safe.

Id.

at 18.

Mr. Stuart Cravens, a certified groundwater professional and licensed professional

geologist, testified on behalfofWaste Management. Mr. Cravens conducted a site-specific study

to characterize the hydrogeology in the immediate vicinity of the proposed landfill. T&C II,

6/27/03 Ti. Vol. 4-A, 25-26. Mr. Cravens criticized the study performed by T&C because T& C

did not perform any downhole geophysic logging, a pump test or an isotopic analysis, which are

all important in obtaining a clear picture ofthe hydrogeology of a site.

Id.

at 32-41. As a result

of his study, Mr. Cravens concluded that there was evidence of factures to a depth ofat least 50

feet and that the fractures connected the weathered zone and the underlying weathered zone,

creating a hydraulic connection between those zones.

Id.

at 59-67. Mr. Cravens explained that

the failure to account for the existence and characteristics of fractured aquifers is a prescription

for serious misinterpretation of the flow dynamics of the entire media because if the fractures

and connection of the fractures are not understood, any type of modeling or monitoring well

construction placement could be incorrect. T&C II 6/27/03 Tr. Vol. 4-B, 73. Mr. Cravens

concluded that in his opinion, “the landfill is unsuitable based on the hydrogeology.”

Id.

at 91.

He also concluded that the additional work performed by T&C following this Board’s denial of

T&C’s 2002 Application “just wasn’t sufficient.

. .

to have the full picture.”

Id.

at 100.

Additionally, Mr. Yarborough, a geologist recommended by Tom Volini, was paid and

hired by the city to review the hydrogeology information in T&C’s 2003 Application and submit

various reports. Mr. Yarborough did not testify at the public hearing, and was not subjected to

cross-examination, but instead, he submitted three separate written reports, dated April 14, 2003,

May 1, 2003 and July 24, 2003. Those reports were not submitted until after the close of the

public comment period. The April 14, 2003 report recommended that all exposed joints be

grouted.

PCB II, Pet. Ex. 3. However, none of his

reports established a method for grouting or

method oftesting its effectiveness.

With respect to criterion viii, the evidence established that the County of Kankakee had

first adopted its Solid Waste Management Plan (“Plan”) in 1993 and readopted it in 1995. PCB

II C 1626-1776, Public Comment of the County of Kankakee. The Illinois Environmental

Protection Agency (IEPA) reviewed the 1995 Plan and found that it was developed in

accordance with the planning process required in the Solid Waste Planning and Recycling Act.

id.,

letter from IEPA dated 10/2/95. Thereafter, in 2000, Kankakee County reviewed and

updated its Plan, and the JEPA concluded that “Kankakee County’s five-year plan update has

been completed in accordance with the provisions required in the SWRPA.”

Id.,

letter from

IEPA dated 10/2/00. Kankakee County made amendments to the Plan on October 9, 2001,

March 12, 2002, and February 11,2003.

Id.

The pertinent March 12, 2002 amendments established a new requirement that the

owner/operator of any new or expanded regional pollution control facility “post and maintain for

the life of such regional pollution control facility either: (1) an environmental contingency

escrow fund of a minimum of $1 million dollars based upon an annual payment not to exceed

five

(5)

years, or (2) some other type ofpayment or performance bond or policy ofonsite/offsite

environmental impairment insurance in a form and amount acceptable to the County.”

Id.,

Resolution 01-10-09-393. The amendment also required the owner or operator of a proposed

new landfill or landfill expansion in the County to “establish a property value guarantee program

to be prepared by an independent entity satisfactory to the County.”

Id.

The February 11,

2003 amendment is quoted in its entirety in the argument below, but it provides in pertinent part:

“It is the intent of Kankakee County that no landfills or landfill operations be sited, located,

developed or operated within Kankakee County other than the existing landfill located southeast

of the Intersection of U.S. Route

45/52

and 6000 South Road in Otto Township, Kankakee

County, Illinois.” See Appendix C.

Devin Moose testified on behalfof T&C on criterion viii. T&C II, 6/26/03 Tr. Vol. 3-C,

12-97). While Mr. Moose testified that the terms “contiguous” contained in the Plan were

ambiguous, he admitted that the proposed facility and the existing Kankakee County facility

would not be contiguous.

Id.

58-59.

Mr. Moose also testified that the phrase “existing

landfill” was ambiguous when read in isolation, but that by looking beyond one clause, the most

logical conclusion was that the phrase “existing landfill” referred to the Waste Management

facility, especially since the Waste Management facility was the only operating facility in the

County.

Id.

57-58,

8 1-82.

The City Council’s Finding that the Proposed Landfill Met Criterion ii is Against

the Manifest Weight of the Evidence.

Section 39.2(a)(ii) requires that

“The

facility be located, designed, and operated to

protect the public health, safety, and welfare.” T&C failed to establish this criterion; therefore,

the City Council’s conclusion that this criterion was met was against the manifest weight of the

evidence.

As explained above, in 2002, T&C filed a substantially similar Application to the one

filed with the siting authority in this case. After reviewing the 2002 Application and testimony

provided by T&C in support of that Application, this Board found that City Council’s decision

that the facility met criterion ii was against the manifest weight of the evidence because of

deficiencies in the design and location ofthe proposed landfill.

See Town & Country 1,

slip op.

at 25-28. Specifically, this Board found that T&C failed to establish that the facility would

protect the public health, safety and welfare because it would be located in an aquifer.

Id.

at 27-

28. Furthermore, the Board found that the design of the landfill failed to account for the impacts

of both the horizontal and vertical flow of contaminants because while “Town & County

indicated it would fill any cracks in the bedrock with grout,”

. . .

“the effectiveness of the grout

to restrict vertical flow was not measured.”

Id.

at 27. Finally, the Board concluded that the City

Council’s condition that “adequate measures shall be taken to assure protection of any and all

aquifers from contamination as required by the EPA through its permitting process” was

insufficient to “cure the lack of evidence” presented by T&C.

Id.

T&C contends that its 2003 Application addresses “each and every one of the perceived

weaknesses which the Pollution Control Board identified in its decision.” T&C II,

6/24/03

Tr.

Vol. 1-A, 60. However, in fact, the 2003 Application does not cure any of the problems that

plagued the design and location of this same facility in 2002. This is true because T&C has

asserted that the dolomite below the site is a fractured aquifer. T&C II, 6/25/03 Tr. Vol. 3-A, 25,

70. In light of this concession, and the potential for impact to the aquifer and area water supply,

T&C has completely failed to demonstrate that the aquifer will be protected from the impacts of

vertical flow of contaminants on this site. Furthermore, the City Council has once again weakly

(and improperly) attempted to cure these deficiencies through a condition that places the

responsibility of ensuring that the facility is protective of the health, safety and welfare in the

hands of the IEPA, rather than the City Council, where it belongs.

T&C

Once Again Failed to Properly Characterize the Bedrock Below the

Site.

In its most recent application, T&C has characterized the upper nine feet of the Silurian

Dolomite as highly permeable or “weathered.” T&C II, 6/25/03 Tr. Vol. 2-A, 13. T&C

characterized the portion of the Silurian Dolomite below the weathered zone as competent

bedrock, or an aquitard. T&C II, 6/24/03 Tr. Vol. 1-C, 9-10; T&C II, 6/26/03 Tr. Vol. 3-A, 73-

74. However, the manifest weight of the evidence establishes that the competent bedrock is

actually an aquifer, as was specifically found by the City Council. PCB II, Pet. Ex. 1, p. 12,

para. 1. Tn fact, T&C’s own witness even admitted that the landfill will be located in the aquifer.

(T&C II 6/26/03 Tr. Vol. 3-B,

55.

However, instead of simply readily admitting that the proposed landfill is sited on an

aquifer, T&C continued to assert at the siting hearing that the lower zone of the bedrock is

competent, or relatively impermeable, and will therefore provide an additional barrier for the

landfill. T&C II, 6/24/03 Tr. Vol. I-C, 9-10; T&C II 6/26/03 Tr. Vol. 3-A, 73-74. Because of

T&C’s mischaracterization ofthe bedrock beneath the proposed landfill, T&C has again designed

its landfill to be constructed on and within an aquifer, which is not protective of the public

health, safety and welfare.

In attempting to show that the area under the proposed landfill is an aquitard, T&C

dramatically underestimated the hydraulic conductivity of the dolomite that will be left in place

and in contact with the landfill. This underestimation is significant because the design of a

landfill is based on the geologic and hydrogeologic conditions at the site. T&C II App., pp.

10130-10131; T&C 11, App,, pp. 2.3-2, 2.7-1.

Without an accurate hydrogeologic

characterization, the necessary foundation for the development ofan environmentally protective

landfill design does not exist.

T&C grossly underestimated the hydraulic conductivity of the bedrock by

mischaracterizing numerous slug test results as being representative of “weathered” bedrock

when actually the slug tests were performed on unweathered bedrock that will remain below the

landfill. After performing 49 slug tests in the bedrock at 26 well locations T&C II App., p. 2, 7-

T&C then used certain slug test results to determine the hydraulic conductivity of the bedrock

below and surrounding the landfill. However, T&C inexplicably excluded all slug test results for

tests that had a screen interval within nine feet of the surface, even though the field engineers

determined that much of the dolomite was unweathered and competent. T&C II,

6/25/03

Tr.

Vol. 2-A, 82-83. This is particularly troubling because T&C admitted it will only remove the

dolomite within the first nine feet that it visually determines is “weathered.”

Id.

at 89.

Consequently, T&C has excluded the test results of bedrock that may remain in direct

communication with the landfill and, therefore, T&C came to an erroneous conclusion of the

hydraulic conductivity of the bedrock which will interface with the landfill.

Mr. Jeff Schuh testified that by utilizing T&C’s data (Appendix H.3), as well as the

testimony of Mr. Drommerhausen as to those wells constructed in unweathered bedrock that

were erroneously listed in the weathered bedrock table, the bedrock remaining after construction

will actually have a coefficient of hydraulic conductivity ranging from 1 x 1 ci7 cmlsec to

x I o’~

cm/see, for a difference ofover 60,000 times. T&C II, 6/27/03 Tr. Vol.4-B, 115. The geometric

mean used by T&C to computer model contaminant transport in the unweathered dolomite was

1.13 x Io-~cm/sec, or almost 500 times lower than the highest measured hydraulic conductivity

for the rock that will remain below the landfill after construction. T&C II, 6/25/03 Tr. Vol. 2-A,

115. As a result, T&C failed to examine the effect the higher hydraulic conductivity would have

on the movement of contaminants, which is a significant issue, as found by this Board in

Town &

Country I.

T&C also misrepresented its data and conclusions from the slug tests in the bedrock by

assigning test results to the wrong bedrock zones. While T&C considered 20 of these test results

to represent the hydraulic conductivity permeability in the upper weathered bedrock (first nine

feet), only three of those wells were actually constructed entirely within the weathered zone.

Nevertheless, T&C chose to used the results from all 20 wells to characterize the permeability of

the weathered bedrock. T&C II, 6/24/03 Tr. Vol. 1-C, 67-68. Consequently, the interpreted

permeability of the unweathered bedrock was based on a significantly reduced number of tests.

Thus, the penneabilities in the lower unweathered zone were understated, supporting Town and

Country’s theory that the lower zone was not an aquifer, but an aquitard. T&C II, 6/27/03 Tr.

Vol. 4-B 118-20. If the test results were assigned to the appropriate zones that were actually

tested, the reported hydraulic conductivity in the lower unweathered zone would increase

significantly. That higher permeability is comparable to the permeability in the weathered

dolomite, and indicates that the unweathered dolomite is a fractured bedrock aquifer. T&C II,

6/24/03 Tr. Vol. I-C, 76-90.

The overwhelming evidence establishes that the area directly beneath the proposed

landfill is an aquifer. In fact, boreholes that encountered water-bearing fractures had zones with

hydraulic conductivity values of 1 o~cm/sec indicative of a productive fractured bedrock

aquifer. T&C II, Waste Management Ex. 2, p.

5-1.

Additionally, scientific studies and

published research confirm that the dolomite in the area of the proposed landfill is a regionally

significant fractured bedrock aquifer. T&C II, 6/27/03 Tr. Vol. 4-A, 66-67; T&C II Waste

Management Ex. 2, pp. 5-2, 6-1, 6-2; Public Comment, Illinois State Water Survey Letter dated

5/21/03 to Larry O’Connor and Mark Benoit).

It is clear that in this Application, T&C has again failed to properly characterize the

bedrock below the site because even though

T&C’s

own witness admitted that the bedrock is an

aquifer, he qualified that statement by contending it a low-producing area. T&C II, 6/26/03 Tr.

Vol. 3-A, 37-38. However, the water well log information contained in the Siting Application

establishes the presence of over 300 water wells within two miles of the site. T&C I App., pp.

30013-30061. More than half of these wells are drawing water from the lower zone of the

Silurian Dolomite that Town & Country characterized as an aquitard. T&C I App., pp. 30013-

30054; T&C I, 6/24/02 Tv., 112-140; T&C 11, 6/27/03 Tr. Vol. 4-A, 68-69. This evidence clearly

establishes that the aquifer is producing significant amounts of water and that T&C’s

characterizations ofthe bedrock communicating with the site are grossly inaccurate.

Just as the Board found with respect to T&C’s 2002 Application, the evidence presented

in its 2003 Application still ‘overwhelmingly establishes that the landfill is located on an aquifer

and Town & Country’s design does not adequately address that fact.”

Town & Country I,

slip op.

at 25. Because T&C does not accurately characterize the area beneath the landfill, T&C has

once again failed to adequately examine what effect that location has on this facility. As a result,

T&C has not established that this facility is designed and located to protect the public health,

safety and welfare, and the City Council’s finding that criterion (ii) was met is against the

manifest weight ofthe evidence.

T&C Again Failed to Adequately Consider the Impact of Vertical flow of

Contaminants on the Site.

Just as in its 2002 Application, T&C has again failed to account for the vertical flow of

contaminants into the aquifer, which will occur through fractures in the bedrock and the

downward gradient present on the site. T&C has also failed to adequately account for vertical

flow because ofits insufficient study of the porosity of the bedrock.

It is clear that fractures in the dolomite aquifer must be identified in order to understand

groundwater flow and contaminant transport in fractured rock systems.

T&C II, Waste

Management Ex. No. 2, p. 1-2. Failure to account for the existence and characteristics of

fractures in bedrock aquifers leads to a misinterpretation of flow dynamics, which prevents the

development ofreliable models for groundwater impact evaluation and assessment.

Id.

Based upon the data obtained from four deep wells that penetrated over 200 feet of

dolomite, Mr. Cravens determined that the Silurian Dolomite in the area including the proposed

landfill is a fractured bedrock aquifer to a depth of at least 50 feet below the top of the bedrock.

T&C II, 6/27/03 Tr. Vol. 4-A, 66-67. He stated that T&C’s characterization of the unweathered

or “competent” bedrock was not sufficient, in that the weathered and unweathered zones are

hydraulically connected, with vertical movement between them through fractures. T&C II,

6/27/03 Tr. Vol. 4-A, 66, 100; T&C II, Waste Management Ex. 2, p. 5-2. In addition, T&C did

not adequately characterize the location and extent of fractures in the dolomite, resulting in the

mischaracterization ofthe dolomite. T&C II, 6/27/03 Tr. 4-A, 113-114.

T&C’s failure to characterize the fractures in the lower bedrock undemiines its

groundwater impact model and precludes an accurate or reliable groundwater impact evaluation.

As a result of this mischaracterization, T&C has assumed no vertical flow in its groundwater

model, despite the undeniable hydraulic connection in the weathered and unweathered zones and

vertical flow in the dolomite. T&C II, 6/27/03 Tr. Vol. 4-B, 130-133; T&C II, Waste

Management Ex. 2, p.

5-2.

In reaching his conclusion that there will be no vertical flow, Mr.

Drommerhausen ignored data collected on November 8, 2002, which demonstrated a significant

downward gradient at this location. The presence of a downward gradient is also shown in

T&C’s Figure G3 I. T&C II, 6/27/03 Tr. 4-B, 129-130. This exhibit shows piezometric contours

closing on themselves, indicating that there is a vertical downward flow in the southwest portion

of the landfill footprint and within the zone of attenuation.

Id.

at 129. Therefore, it is clear that

T&C deliberately ignored the downward flow direction in the uppermost aquifer in coming to its

conclusions, and it is clear that the City Council relied on this mischaracterization by finding that

there was no “need to model downward movement of contaminants.” T&C II, Pet. Ex. 12, para.

It is also clear that T&C mischaracterized the potential for vertical fracture flow because

Mr. Drommerhausen testified that T&C’ s test data did not indicate any noticeable difference in

flow rates in the areas with and without vertical fractures. T&C II, App., p. 2.7-4. However, this

statement directly conflicts with the results of Packer tests performed in angle boring AB-1 and

Packer tests performed in nearby borings B-27 and B-28. T&C II, 6/27/03 Tr. Vol. 4-B, 117.

The geometric mean of the hydraulic conductivity measured in the angle borings was 16 times

greater that the geometric mean of the horizontal hydraulic conductivity measured in the nearby

vertical borings.

Id.

This data, in conjunction with the data demonstrating downward vertical

flow, indicates that T&C has not adequately characterized the flow at the site or adequately

considered the fractures present at this site. These failures establish that T&C has not met its

burden of proving that its proposed facility is designed and located to protect the public health,

safety and welfare.

Finally, T&C has failed to account for the vertical flow of contaminants because T&C

failed to perform a proper analysis of porosity. Mr. Drommerhausen testified that the porosity

used in the Groundwater Impact Evaluation (GIE) was not the secondary porosity, but was

instead the primary porosity of the uppermost aquifer. Therefore, T&C did not consider the

potential for the porosity to vary with depth and lateral extent, and performed all analyses using

the estimated porosity without regard for natural variation. Secondary porosity was neither

measured nor estimated. T&C II, 6/27/03 Tr. Vol. 4-B,

125.

Because secondary porosity was

never measured, T&C failed to consider that contaminants may be able to flow through cavities

and openings in the dolomite aquifer.

Because of the failures identified above, T&C did not meet its burden of proving that its

proposed facility was designed and located to protect the public health, safety and welfare.

T&C has Failed to Protect Against

the Vertical Flow

of Contaminants on the

Site, and the

City’s

Condition Requiring Grouting of All Fractures Does Not

Alleviate That Deficiency.

In defense of its 2002 application, T&C indicated it would fill

any cracks in the bedrock

with grout, which was insufficient according to this Board because T&C failed to measure if the

grout would be effective in restricting the vertical flow of contaminants.

See Town & Country I,

slip op. at 27. Possibly because of this Board’s criticism of T&C’s failure to determine the

effectiveness of the grouting, T&C did not recommend grouting in its 2003 Application.

However, T&C’s failure to include grouting in its new application not only did not cure the

problem in the earlier Application, but it actually compounded the problem, as the current

Application again contains no protection against the vertical flow of contaminants even though it

is clear that there needs to be some protection against that problem, as emphasized by Mr.

Ronald Yarborough, a geologist retained by the City.

In his April 14, 2003 report, Mr. Yarborough stated that “the Silurian Dolomite has

‘intrinsic permeability’ which is due to primary opcnings formed with the rock, bedding and vugs

and secondary openings created after the rock was formed (joints

solution channels).” T&C

II, Pet. Ex. 3, p. 3; C1595. Mr. Yarborough explained that “tjhe Silurian Dolomite relies on

‘fractures--joints or bedding’ openings to be classified as an aquifer.”

Id.

at p. 4; Cl 596. He

stated further that “it is known that the weathered dolomite and competent dolomite are

aquifers with the greatest variability in the competent dolomite.”

it!.

at p. 5; C1597. Mr.

Yarborough concluded that the proposed landfill would not affect the groundwater in the area

surrounding the landfill so long as exposed joints in the “competent” bedrock invert were

grouted.

Id.

at p. 1; C1612. Although Mr. Yarborough stated that all exposed joints be grouted,

he did not propose a method for doing so,

Id.

at p.

C1597. Moreover, he admitted that “this

writer does not know ofa means to test sealing ofthe joints.”

Id.

at p.

C1597.

As a result of Mr. Yarborough’s conclusions, the City Council imposed a condition that

required T&C to grout. That condition provides: “The applicant shall cause the pressure

grouting of all open joints found in the exposed competent Dolomite on the landfill invert as

those open joints are discovered upon removal of the weathered rock and prior to the installation

any liner consistent with the application previously filed,” T&C II Pet Ex. 1, p. 16, para. 20.

Despite the clear need for some type ofprotection of the exposed joints in the bedrock,

T&C’s application failed to establish

any layer of protection. As a result, T&C’s Application is

fatally deficient. The fact that the City Council imposed a condition that required grouting does

not cure T&C’s deficiency because T&C was required to submit an Application that

demonstrates that the facility meets each of the criteria set forth in section 39.2(a) of the Act.

See Land and Lakes,

319 Ill.App.3d at 45, 743 N.E.2d at 191. Clearly, T&C failed to do so, and

the City Council had to supplement T&C’s design. It is the duty of T&C to design a facility that

is protective of the health, safety and welfare, and not the duty of the siting authority to help

create such a facilitythrough various conditions.

Moreover, the City’s creation of the grouting condition does not necessarily make T&C’s

facility more protective of the health, safety and welfare because, just as in

Town & Country I,

no one has measured or determined the effectiveness of grouting to restrict vertical flow. See

Town & Country L

slip op. at 27. In fact, nothing in Mr. Yarborough’s reports substantiates the

City’s condition that grouting all open joints found in the exposed Silurian Dolomite bedrock

would render T&C’s proposed landfill safe. The record is completely devoid of any facts or

information to establish whether grouting is a practical or effective means of protecting the

groundwater. There is also no evidence that the grouting will support, rather than impair, the

present design ofthe facility because grouting was not considered by T&C. As a result, there is

no competent evidence to establish that the grouting imposed by the City will protect the public

health safety and welfare.

Because T&C has failed to design a facility that adequately protects against the vertical

flow of contaminants, T&C’s facility is not protective of the public health and safety.

Furthermore, the materially deficient design of the facility cannot simply be overcome by an

unsubstantiated condition imposed by the City, especially since there is no testimony or evidence

to establish that such a condition will render the proposed site safe. As such, the City Council’s

decision that the proposed facility met criterion ii was against the manifest weight of the

evidence,

The Design and Location of this Landfill is Not Protective of the Public

Health, Safety and Welfare Because it is Located Directly Within the

Fractured Aquifer Which Will Not Be Adequately Monitored.

Despite T&C’s attempt to argue that the landfIll’s location on top of an aquifer has no

negative impact, it is clear that building a landfill on top of and within an aquifer is a poor design

that presents a significant threat to the public health, safety and welfare. T&C II, 6/27/03 Tr.

Vol. 4-A, p. 91. This is especially true because there is not an adequate buffer between the

facility and the aquifer below. By designing the landfill to be placed directly on and within the

bedrock aquifer, T&C proposed no barrier or other protective layer between the base liner ofthe

landfill and the aquifer. T&C II. App., p. 2.3-2. There is no safety buffer below the landfill to

prevent contaminant migration in the event of a release. T&C II. App., p. 2.3-2. Any release or

leak from the landfill “would go right into the aquifer that’s utilized.” T&C I

6/25/02

Tr., 89.

The City erroneously found that T&C’s reliance on the composite liner and its inward

gradient design was sufficient to protect against any releases or contaminant migration from the

landfill. However, this finding ignores the Board’s concern as pointed out in

County

Kankakee,

slip op. at 27, namely that T&C did not evaluate how the liner will perform for any

vertical or downward flow of contaminants.

Id.

at 92. The liner was not modeled to evaluate

downward flow or to determine the impact of the landfill on the unweathered portion of the

bedrock aquifer. T&C II, 6/27/03 Tr. Vol. 4-B, 130. Downward flow of contaminants is an

extremely important public health and safety consideration especially, when, as here, the landfill

will sit directly on and within the aquifer and there is no impermeable barrier between the

landfill liner and the aquifer. If there is a release, the aquifer within the Silurian Dolomite is

immediately at risk. T&C 1, 6/26/02 Tr., 151.

Moreover, the design and location of this facility are clearly not protective of the public

health, safety and welfare because T&C failed to design an adequate groundwater monitoring

system. A groundwater monitoring system is essential for the protection of the public health and

safety because it is intended to provide assurance that the facility is functioning as designed and

is not having any adverse impact in groundwater quality. T&C II App., p. 2.8-1. T&C’s landfill

is proposed to be constructed on and within what it calls the lower zone of “competent” bedrock.

T&C II App., p. 2.3-2. T&C proposes to monitor only the weathered dolomite in its

groundwater monitoring program. T&C II App., pp. 2.8-1

2.8-5. However, the evidence does

not support T&C’s characterization of the Silurian Dolomite as consisting of an upper zone of

weathered bedrock that functions as an aquifer, and a lower zone of competent bedrock that

functions as an aquitard. Because T&C’s hydrogeologic study mischaracterizes the lower zone

of the Silurian Dolomite bedrock as an aquitard, the groundwater monitoring system is flawed

because it does not propose to monitor the bedrock directly under the landfill. It proposes only

to monitor the upper zone of weathered dolomite. T&C II App., p. 2.8-2. Hence, any

contaminants released from the facility would not be detected before reaching the aquifer. This

is a fundamental deficiency with the groundwater monitoring system.

See A.R.F. Landfill, Inc v.

Pollution Control Board,

174 Ill. App. 3d 82, 528 N.E.2d 390, 397 (2d Dist. 1988) (groundwater

monitoring system did not sufficiently provide “early warning system” for persons with wells

located near the site).

Like the other features of the landfill, the groundwater monitoring system is not designed

to address this Board’s important concerns about vertical and horizontal flow. See

Town &

Country

slip op. at 27. Mr. Drommerhausen implies that because the weathered dolomite has a

mean hydraulic conductivity

times higher than the competent bedrock, the weathered bedrock

is the only material that needs to be monitored. T&C II, 6/24/03 Tr. Vol. 1-B, 126. However,

that assumption is not consistent with the measured downward gradient, which is 12 times the

horizontal gradient. T&C II, 6/27/03 Tr. Vol. 4-B, 132-33. Because of that downward gradient,

there is potential for seepage to move vertically into the competent bedrock before it reaches the

perimeter of the site where it can be detected in the wells.

The design of the proposed facility without an impermeable clay barrier or buffer

between the bottom of the landfill and the bedrock aquifer and with a groundwater monitoring

system that does not monitor the lower zone of the dolomite aquifer is not safe. These design

deficiencies threaten the public health and safety, and establish that Town & Country has not

satisfied Criterion (ii).

McLean County Disposal v. County ofMcLean,

207 Iii. App. 3d 477,

566

N.E.2d 26,32(4th Dist. 1991);

A.R.F. Landfill, Inc. v. Pollution Control Board,

174 Ill. App. 3d

82, 528 N.E.2d 390, 397 (2d Dist. 1988);

McHenry County Landfill, Inc. v. Illinois

Environmental Protection Agency,

154 111. App. 3d 89, 506 N.E.2d 372, 381 (2d Dist. 1987).

Evidence that the design of the facility is flawed from a public safety standpoint is a basis to

deny the application.

Industrial Fuels & Resources/Illinois, Inc. v. Pollution Control Board,

227

Ill. App. 3d 533, 592 N.E.2d 148, 157 (1st Dist. 1992) (local decision that criterion 2 was not

met was reversed where there was no evidence that facility design was flawed from public safety

standpoint);

Tate v. Illinois Pollution Control Board,

188 Ill. App. 3d, 994, 544 N.E.2d 1176,

1196 (4th Dist. 1989) (local siting body may reject site if proposed facility presents a potential

health hazard to the community, even if all tecimical requirements ofthe Illinois Environmental

Protection Agency and the Board are met). Because it is clear that the location and design of this

facility are not protective of the public health and safety, the City Council’s decision that this

facility met criterion (ii) is against the manifest weight ofthe evidence and must be reversed.

T&C Failed to Include Sensitivity Analyses in its Application and Failed to

Adequately Establish Inward Flow.

In addition to the deficiencies provided above, in its 2003 Application T&C has failed to

establish that the proposed facility will protect the public health, safety and welfare because

T&C failed to include sensitivity analyses in its Application and failed to adequately establish

inward flow at the site. These deficiencies establish that once again “the evidence Town &

Country did present was unreliable.”

Town & Country I,

slip op. at 28.

T&C’s Application is dependent upon its assumption of inward flow at the proposed

facility, an assumption that was relied upon by T&C in performing the Groundwater Impact

Evaluation (GTE). T&C

App.

2.7-15.

However, T&C’s conclusion of flow reversal under the

landfill was not analyzed or corroborated. T&C’s expert testified that the site will have inward

gradient conditions and that groundwater flow in bedrock will be reversed after the landfill is

constructed. T&C II, 6/25/03 Tr. Vol. 2-A,

50.

However, the analyses used to reach that

conclusion are flawed because they are based on the worst case scenario, assuming the clay liner

is only 3 feet thick (when on average, the combined clay liner will be 7.5 feet thick), there are

holes in the HDPE liner equal to 0.05 of the total surface area (with a hole of over 4,000 square

feet) and an inward gradient is the maximum measured over the entire site. T&C II App.,

Append. K. The analyses provided in Appendix K of the Application were prepared for the sole

purpose of sizing the leachate collection system for all sources of water, not for the assessment

of actual seepage from the bedrock aquifer into the landfill. As such, those analyses were

improperly used to determine if inward flow of water through the composite liner system will

cause the existing downward gradient to be reversed and, therefore, there is no competent

evidence establishing that the natural flow of groundwater will be reversed by landfill

construction. T&C II, 6/27/03 Tr. Vol. 4-C, 13.

In addition, T&C failed to support its conclusion that diffusion will be pushed back to the

landfill. T&C portrays that diffusion will be arrestedby the inward gradient into the landfill. Dr.

Daniel testified that a velocity of I x io~

cm/sec or more is adequate to push-back the diffusion

of chemicals into the landfill. T&C II, 6/26/03 Tr. Vol. 3-B, 70. However, Dr. Daniel’s

testimony that the inward seepage rate is adequate to push back contamination directly and

irreconcilably conflicts with the Application. The Application provides that the seepage rate into

the landfill through the clay and HDPE liner system is 5.84 x 10~ft/sec. or 1.78-9, or more than

times lower than the velocity needed to push back the diffusion. T&C II App., Append. K).

However, the analyses in Appendix K of the Application are for the highest hydraulic

conductivity and the highest inward gradient. If the liner is compacted to provide a lower

hydraulic conductivity, and the clay liner is thicker than 3 feet (of which both will more than

likely be true) and if a double liner is used, the seepage rate into the landfill will be significantly

lower than 1 .78 x 10-9 cnt’sec., thereby making it questionable whether diffusion into the landfill

will actually exist.

Finally, the Groundwater Impact Evaluation did not include a sensitivity analysis on the

major parameters incorporated into the GIE. As Mr. Schuh testified, the application did not

include sensitivity analysis of the hydraulic conductivity of the uppermost aquifer, even though

the site-specific values varied by over 60,000 times. T&C II 6/27/03 Tr. Vol. 4-B, 126. The

application did not consider the potential for fracture flow to govern contaminant transport. The

application also did not include sensitivity analyses to consider the variation in hydraulic

gradient across the site or changes due to normal water level fluctuations caused by draught and

precipitation. Furthermore, the application contained no sensitivity analyses to consider changes

in dispersion coefficient, leachate quality, and other parameters that could affect the ability ofthe

landfill design to protect public health, safety, and welfare. The absence of these sensitivity

analyses makes it absolutely impossible to establish that the facility is designed and located to

protect the public health and safety. T&C II, 6/27/03 Tr. Vol. 4-C, pp. 14-15.

Because T&C failed to present adequate data and evidence to establish that its facility

was designed and located to protect the public health and welfare, the City Council’s decision

that criterion (ii) was met is against the manifest weight of the evidence and must be reversed.

The Kankakee City Council Again Improperly Deferred to the IEPA Because

of the Lack of Evidence Presented by T&C in its Application.

After reviewing the Application and testimony provided in the local siting hearing, the

City Council of Kankakee again deferred to the IEPA to determine if the facility at issue is

protective of the public health, safety and welfare. In fact, the City Council added exactly the

same condition as it did with respect to the 2002 Application, stating: “Adequate measures shall

be taken to assure the protection of any and all aquifers from any contamination as required by

the TEPA through its permitting process. Upon the determination of the necessary measures, said

measures shall be also approved by the City of Kankakee.” T&C IT, Pet. Ex. 1, p. 15, para. 9.

Clearly, the City Council found that this criterion was necessary because T&C failed to present

sufficient evidence to establish that the facility was designed and located to protect the public

health, safety and welfare because the landfill was located on the aquifer.

Just as was the case in 2002, “the City’s additional condition regarding criterion ii does

not cure the lack of evidence in the record showing that the landfill is designed to protect the

public health, safety and welfare.”

Town & Country I,

slip op. at 27. As set forth by this Board

in that decision, the City is not allowed to simply defer to the IEPA when there is insufficient

evidence to support the siting request because it is the duty of the siting authority to address

tecimical information assess the effect of the proposed facility on the public health, safety and

welfare.

Town & Country I,

slip op. at 27,

citing Waste Management of Illinois v. PCB,

160

Ill.App.3d 434, 438, 513 N.E.2d 592,

594-95

(2d Dist. 1987).

The City Council not only deferred to the IEPA in the condition provided above, but it

also deferred to the IEPA in other portions of its Findings of Fact and Conclusions of Law, in

that the City Council stated: “In the event that additional borings determine that additional

protection of any aquifer that may exist, it is the understanding and expectation of the City that

the technical expertise of the Tllinois Environmental Protection Agency make such additional

requirements of the applicant, as said technical expertise shall determine is necessary.” T&C II,

Pet. Ex. 1, p. 13. This statement also clearly establishes that the City was simply deferring to the

IEPA because there was insufficient evidence presented by T&C to establish that the location

and design ofthe facility were protective of the public health, safety and welfare.

It was the duty and obligation of T&C to present sufficient details to establish that all of

the criteria set forth in 39.2(a) are met.

See Land and Lakes,

319 Tll.App.3d at

45,

252 N.E.2d at

191. However, T&C clearly failed to present evidence to establish that criteria (ii) was met,

necessitating the conditions imposed by the City Council. Because T&C failed to carry its

burden of proving that criterion (ii) was met, the City Council’s siting of the facility must be

reversed.

The City Council’s Finding that the Proposed Landfill Met Criterion viii is Against

the Manifest Weight ofthe Evidence.

Section 39.2(a)(viii) provides that an applicant for local siting approval of a pollution

control facility must demonstrate that:

Ifthe facility is to be located in the County where the County Board has adopted a

Solid Waste Management Plan consistent with the planning requirements of the

Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act,

the facility is consistent with that plan.

415 ILCS 39.2(a)(viii)(2002).

In evaluating whether a proposed facility is consistent with a solid waste management

plan, the City Council must look to the language of the plan.

TO. T.A.L. v. City of Salem,

PCB

96-79 and 96-82 (cons.), slip op. at 24 (March 7, 1996). If the proposed facility is inapposite of

the plan, the proposed facility is not consistent and has not satisfied criterion eight.

See City of

Geneva v. Waste Management of Illinois, Inc.,

PCB 94-58, slip op. at 22 (July 21, 1994).

Although this Board usually uses a manifest weight ofthe evidence standard to review decisions

of a local siting authority, compliance with criterion viii should be reviewed de novo because it

involves a purely legal interpretation. See 415 ILCS 5/41(b);

Fairview Area Citizens Task Force

v. Illinois Pollution Control Board,

198 Ill.App.3d 541, 552,

555

N.E.2d 1178 (3d Dist. 1990);

Land and Lakes,

319 Ill.App.3d at 48, 743 N.E.2d at 193. However, even under a manifest

weight ofthe evidence standard, the City Council’s decision should be reversed.

In its Findings of Fact and Conclusions of Law, the Kaukakee City Council concluded

with respect to criterion viii: “T&C has established that Kankakee County has not adopted a solid

waste plan which is consistent with the planning requirements of the Local Sold sic Waste

Disposal Act or the Solid Waste Planning and Recycling Act. Alternatively if such a plan does

exist, T&C has established that the application is consistent with the plan.” T&C II, Pet. Ex. 1,

p. 24. These conclusions are improper and contrary to the manifest weight of the evidence.

Based on the undisputed facts presented at the hearing, it is clearly evident that T&C failed to

satisfy the requirements of criterion viii, Therefore, this Board should reverse the City of

Kankakee’s siting approval.

The City Council Improperly and Erroneously Concluded that the Solid

Waste Management Plan Adopted by Kaukakee County was Invalid.

Tn its Findings ofFact and Conclusions of Law, the City Council of Kankakee improperly

found that “Kankakee County has not adopted a solid waste plan which is consistent with the

planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and

Recycling Act.”

ld.

However, the City Council had no authority to make such a determination

because it is improper to examine how a Plan is created or adopted in a Section 39.2 proceeding.

Residents Against a Polluted Environment v. County of LaSalle and Landcomp

Corp, PCB 97-

139 (June 19, 1997) (citing

Residents Against a Polluted Environment v. County ofLaSalle and

Landcomp

Corp, PCB 96-243 (July 18, 1996)).

Even if the City Council could reach such a conclusion the City Council failed to explain

why the Plan was inconsistent with the Acts. While the City Council asserts that Kankakee

County failed to provide notice to municipalities when it drafted its plan, this is patently untrue

as documents presented by the County of Kankakee unequivocally establish that the City of

Kankakee not only had knowledge of the County’s plan, but that the City of Kankakee’s own

mayor actually served on the intergovernmental task force responsible for drafting the Plan.

PCB IT, C1626-1776, Public Comment of the County of Kankakee,

Therefore, the City

Council’s conclusion that amendments to the County of Kankakee’s Solid Waste Management

Plan were not properly enacted is against the manifest weight of the evidence.

The City Council’s conclusion that Kankakee County’s Waste Management Plan was not

consistent with the planning requirements of the Local Solid Waste Disposal Act (Disposal Act)

or the Solid Waste Planning and Recycling Act (SWPRA) is also against the manifest weight of

the evidence based on this Board’s decision in

County of Kankakee.

County of Kankakee,

T&C argued that the County Plan, as amended on October 9, 2001 and March 12, 2002, was

invalid because it violated the SWPRA and was in conflict with the Disposal Act.

Id.

at 29.

However, this Board held that “ajfter considering the language of the County Plan in

conjunction with the requirements of the SWRPA and the Disposal Act, the Board finds no

disagreement between the plan and the statutes.”

Id.

Because this Board has already concluded

that the County’s Plan is consistent with the SWPRA and Disposal Act, the City Council’s

finding is against the manifest weight ofthe evidence and must be reversed.

Furthermore, it is beyond the scope of this Board to even consider if the Plan is consistent

with the SWPRA or the Disposal Act because that would require this Board to examine how the

plan was adopted, and this Board has held that it is not within the scope ofits review to consider

how a Plan is adopted.

Residents Against a Polluted Environment v. County of LaSalle and

Landcomp

Corp, PCB 97-139 (June 19, 1997) (citing

Residents Against a Polluted Environment

v. County ofLaSalle and Landcomp

Corp. PCB 96-243 (July 18, 1996)). As a result, this Board

should refuse to even consider whether the County’s Plan is consistent with the applicable Acts

and find that the City Council’s consideration on that matter was inappropriate.

Just as it is improper for this Board to examine how the Plan was adopted, it was clearly

improper for the City Council to consider the legality ofKanicakee County’s Waste Management

Plan because that is beyond the scope of a 39.2 hearing, as was expressly decided by the hearing

officer in this case. T&C II, 6/26/03 Tr. Vol. 3-C, pp. 4-6. During the local siting hearing,

T&C’s attorney filed a Motion, seeking to have Kankakee County’s Solid Waste Management

Plan declared invalid, illegal, void, unconstitutional and unenforceable.

Id.

4-5.

In denying

the Motion, the hearing officer refused to consider whether Kankakee County’s Solid Waste

Management Plan was valid because “whether it is or not is a question that I don’t think is

properly before us at this time in this proceeding” because “this hybrid type of a hearing is by the

statute that created it limited in the matters it may address and, as a result, I think that this motion

is to be denied because we have no jurisdiction to hear it.”

Id.

at 6.

As the hearing officer in this case properly found, whether the County’s Solid Waste

Management Plan is valid or not is not something that can be decided in a 39.2 hearing, as such a

proceeding is restricted to only the issues expressly provided for in 39.2 of the Act. Clearly, the

legality or validity of a County’s Solid Waste Management Plan are not issues that are to be

addressed by a siting authority, pursuant to 39.2. Therefore, like the hearing officer in this case,

the City Council was without authority and jurisdiction to consider the legality or validity of the

County’s Waste Management Plan, and the City Council’s decision that the County’s Waste

Management Plan was invalid cannot be upheld.

The City Council’s Finding that the County Plan was Consistent with the

Proposed Facility was Against the Manifest Weight of the Evidence.

The City Council’s alternative finding that the Application was consistent with Kankakee

County’s Solid Waste Management Plan (“Plan”) is also against the manifest weight of the

evidence because the County’s Plan clearly establishes the County’s intent that no new landfills

be sited in Kankakee County, other than expansion of the existing Waste Management facility.

At hearing, on this matter, a copy of the Solid Waste Management Plan and most recent

amendment to that plan, created on February 11, 2003, were admitted into evidence by Kankakee

County. The Plan, as amended, provides:

Tt is the intent ofKankakee County that no landfills or landfill operations be sited,

located, developed or operated within Kankakee County other than the existing

landfill located southeast of the intersection of U.S. Route 45/52 and 6000 South

Road in Otto Township, Kankakee County, Illinois. The only exception to this

restriction on landfilling is that an expansion of the existing landfill would be

allowed under this Plan. The expansion or development of a landfill on the real

property contiguous to the existing landfill would limit the impacts of landfilling

activity in the County. According, the development of any other landfills in the

County on land that is not contiguous to the existing landfill is inconsistent with

this County’s Solid Waste Management Plan.

A noncontiguous landfill is

inconsistent with this Plan regardless of whether it is, or to be, situated upon,

unincorporated County land, incorporated municipal land, village land, township

land, or any other land, within the County borders that is not contiguous and

adjacent to the existing landfill.

PCB II, C472-871; see also Appendix C.

The language of this February 11, 2003 Amendment superseded and clarified the

previous amendments to the Plan to make clear that the Kankakee County Plan was to exclude

all landfiuing except for a possible expansion of the existing facility being operated at U.S.

Route

45/52

at 6000 South Road.

The “Whereas” clauses of the February 11, 2003 Amendment explain the intent of

Kankakee County in drafting the amendment and provide:

Whereas, the County hereby seeks to avoid a second non-contiguous landfill

being developed;

Whereas, the County wishes to limit the impacts of landfilling within the County,

while at the same time providing the benefit of additional landfill capacity within

the County, the County hereby amends its Solid Waste Management Plan such

that no other landfills should be developed in the County with the limited

exception that the existing landfill may be expanded;

Whereas, the County Board has reviewed the decision of the Illinois Pollution

Control Board in PCB-03-31 dated January 9, 2003 and the County Board seeks

to dispel any question or ambiguity, and further affirm that it is its intention to

limit the landfilling within the County only to the existing landfill, and any

expansion of that landfill in an area contiguous to the existing landfill, as well as

affirm that no other landfills are plaimed for or desired within the County, and the

siting or development of any other non-contiguous landfill within the County is

inconsistent with this plan.

Id.

It is obvious from the Amended Plan that the County intends for only one landfill to be

operating within its borders, and that no additional landfill space should be developed in the

County, save a possible expansion of the existing operating Kankakee County landfill. Despite

the plain language of the Amendment and the clear intent of the County to limit landfilling in

Karikakee County to an expansion of the existing landfill, the City Council employed a strained

and disingenuous reading of the Plan to find that T&C’s proposed facility was somehow

consistent with the Plan. Such a finding is clearly nonsensical and against the manifest weight of

the evidence because Waste Management’s own witnesses admitted that the proposed facility

was not contiguous to the existing and operating Waste Management facility, the location of

which was specifically identified in the Plan.

Mr. Devin Moose was the only witness ofT&C to testify on Criterion viii. However, his

testimony should be given absolutely no weight whatsoever, as it was strictly an attempt at

statutory interpretation, which constituted improper legal opinion.

See Brennan v. Wisconsin

Control, Ltd.,

727 Ill.App.3d 1070, 1082,

591

N.E.2d 502 (2d Dist 1992). Mr. Moose admitted

that he did not have the training to provide legal opinions about the Plan and testified “I am not

attorney, I do not intend to give legal opinions, I don’t know what the law is.” T&C H, 6/26/03

Tr. Vol. 3-C, 52. Nonetheless, Mr. Moose provided unqualified legal opinions by offering his

own statutory interpretation that certain isolated words or phrases in the Plan and its

Amendments could somehow be construed in such a way as to render the application consistent

with the County Plan. Such legal conclusions are clearly improper. However, even if Mr.

Moose’s testimony could be relied upon, his testimony does not support the City Council’s

conclusions.

T&C’s Proposed Facility

is Not Contiguous to the Kankakee County

Landfill.

The City Council, in its Findings of Fact, concluded: “The site proposed by this

application is contiguous to an existing landfill and the Waste Management, Inc. operating

landfill, in that it is in close proximity as the proposed site is within two miles ofthe operating

and an existing landfill.” T&C II, Pet. Ex. 1, p. 28, ¶30. This finding is clearly against the

manifest weight of the evidence because the testimony at the hearing conclusively establishes

that the proposed facility was about two miles from the existing facility and, thus, not

contiguous.

Mr. Moose argued that the word “contiguous” is ambiguous because one dictionary he

consulted included a secondary definition of the word of “in close proximity without touching.”

However, the primary definition in that dictionary was “touching; in contact,” and the synonyms

were identified as “bordering, adjoining, abutting.” See Webster’s New Universal Unabridged

Dictionary, p. 316 (1994); T&C II, 6/26/03 Tr. Vol. 3-C,

25;

C872-74. The other dictionary used

by T&C only defined contiguous as “neighboring” and “touching.” See The New Shorter

Oxford English dictionary, p. 493 (1993); T&C II 6/26/03 Tr. Vol. 3-C, 28. Furthermore,

reading the word “contiguous” in context clearly establishes that only an expansion of the

existing landfill on real property adjacent to that landfill is intended.

The Illinois Supreme Court has explained that when construing a legislative enactment, it

is necessary to first look at the language contained in the legislative enactment, giving the terms

their “plain and ordinary meaning.”

Vicencio v. Lincoln-Way Builders, Inc.

204 IlI.2d 295, 789

N.E.2d 290 (2003);

Paris v. Feder,

179 Ill.2d 173, 177, 688 N.E.2d 137 (1997). Illinois Courts

hold that the plain and ordinary meaning of the word “contiguity” is “having a substantial

common boundary” or “touching or adjoining in a reasonably substantial physical sense.”

Orals

City of Chicago,

151 Ill.2d 197, 220, 601 N.E.2d 745, 756 (1992);

In rePetition

Disconnect

Certain Territory from the Franlcfort Fire Protection District,

275 Ill.App.3d 500, 501-02,

656

N.E.2d 434, 435 (3d Dist. 1995). Mr. Moose conceded that the proposed landfill does not touch

or share any existing boundary with the existing Waste Management facility. T&C II 6/27/03

Tr. Vol. 3-C, 87, 89.

Furthermore, T&C’s own land planning expert, Michael T. Donahue, testified that he

deals with contiguity all the time in the area of zoning and planning, and a recognized definition

of “contiguous” is “adjacency.” T&C II, 6/24/03 Tr. Vol. 1-B, pp. 16-37. He further testified

“adjacency” means “abutting” and that the proposed landfill does not physically abut the Waste

Management facility.

Id.

at 17. Therefore, giving the word “contiguous” its plain and ordinary

meaning as provided by the dictionary definitions of the term that have been accepted by the

Illinois Courts, and as recognized by T&C’s own land planner, the landfill proposed by T&C is

not “contiguous” to the existing landfill and cannot be consistent with the County’s Solid Waste

Management Plan.

Even using Mr. Moose’s ridiculously strained definition of “contiguous,” as “close to but

not touching,” the proposed facility is clearly not in any way, shape, manner, or form

“contiguous” to the Waste Management facility. Mr. Moose testified that the proposed facility is

one and three-quarter miles from the Waste Management facility, rather than nearly touching the

existing facility. T&C II, 6/27/03 Tr. Vol. 3-C, p. 57. Mr. Moose further testified that neither

he, nor any other planner, has referred to property one and three-quarter miles apart as being

“contiguous.”

Id.

58-59.

Therefore, even if one were to improperly ignore the context of the

word “contiguous”, ignore the Illinois Court rulings as to the meaning of contiguity, and ignore

the plain and ordinarily understood meaning of the term (i.e., touching, directly next to,

adjoining) and instead employ Mr. Moose’s convenient and myopic definition, the evidence at

the hearing establishes that the proposed landfill is still not contiguous. Therefore, the City

Council’s finding that the proposed landfill is consistent with the Plan because it is contiguous to

the Waste Management facility is against the manifest weight ofthe evidence.

Furthermore, in reaching his conclusion that the proposal is contiguous because it is

allegedly “near” the existing facility, the City Council ignored the context of the word

“contiguous.” The amendment itself provides that “a non-contiguous landfill is inconsistent with

this Plan regardless of whether it is, or to be situated upon

. . .

any other land within the County

borders that is not contiguous and adjacent to the existing landfill.” The City Council completely

failed to consider that an expansion is only allowable if it is upon land that is not only contiguous

but also adjacent to the existing landfill in Kankakee County. The words “contiguous” and

“adjacent” both have primary definitions which provide that a condition of “adjoining” is

necessary to be contiguous or adjacent. See Webster’s p. 18; Oxford, p. 27; PCB II, County Ex.

2. Because the landfill proposed by T&C was clearly not contiguous and adjacent to the

existing Waste Management facility, the City Council’s finding that the proposed facility was

consistent with the County’s Plan was against the manifest weight ofthe evidence.

The fact that the word “contiguous” is not ambiguous is bolstered by the fact that Section

39.2 of the Act contains the word “contiguous,” and no definition of that term is provided.

See

415 ILCS 5/39.2(d). Section 39.2(d) of the Act provides that notice shall be provided to “every

municipality contiguous to the proposed site or contiguous to the municipality in which the

proposed site is to be located.” 415 ILCS

5/39.2(d).

Clearly, the General Assembly would not

have used an ambiguous term without defining what that term meant. Therefore, it is clear that

the General Assembly intended for that word to have its usually understood meaning of

“touching.” It is well settled that section 39.2(d) requires that municipalities only be given notice

if they are directly adjacent to a proposed site or a municipality where a proposed site is located.

(Cite) Section 39.2(d) clearly does not require notice to be given to every “nearby” municipality

within a few miles ofthe proposed site or the municipality in which the proposed site is located.

Because the legislature saw fit to use the term “contiguous” in a statute without defining it, it is

clear that “contiguous” is not ambiguous but is readily understood to mean “adjacent.”

The “Existing Facility” Referred to in the Amendments is Clearly the

Kankakee County Landfill Owned by Waste Management.

The City Council’s additional findings of fact with respect to criterion eight are also

against the manifest weight of the evidence. After finding that the proposed facility was

somehow consistent with the County’s Plan, the City Council went on to find that the Plan was

“ambiguous on its face” because it stated that the County’s desire was to avoid a “second non-

contiguous landfill” and allowed for “the expansion of ‘the existing landfill’ when in fact the

undisputed evidence establishes that more than 20 landfills exist within Kankakee County.”

PCB H, Pet. Ex. 1, p. 28, para. 31. As explained above, it is clear, based on the entirety of the

Plan and its most recent amendment, that the County of Kankakee intended that there be no

landfills developed that were not contiguous to the existing and operating Waste Management

facility. Furthennore, it is clear that the Plan’s reference to “the existing landfill” was not

ambiguous because it clearly referred to the Waste Management Facility.

After reading only one “Whereas” clause, Mr. Moose stated that it was not clear what

“existing landfill” meant; however, the exact location of the existing landfill (at the intersection

ofRoute 45/52 and 6000 South Road, Otto Township) was identified in the Amendment itself.

T&C II, 6/27/03 Tr. Vol. 3-C, 34. In fact, later in his testimony, Mr. Moose conceded that by

looking beyond that one clause, the most logical conclusion was that the phrase “existing

landfill” referred to the Waste Management facility.

Id.

at 81-82. Despite this self-damning

admission, the City Council still found that the phrase “existing landfill” was ambiguous because

there was more than one landfill existing in Kankakee County even though the evidence

established that the Kankakee County landfill was the only operating landfill in the County and

its location was specifically referred to in the Amendment.

It is well settled that when ascertaining the meaning of a legislative enactment, such as

the Amendment at issue, it must be read as a whole with all relevant parts considered.

See Kraft,

Inc. v, Edgar,

138 Ill.2d 178, 189, 561 N.E.2d 656, 661 (1990). Instead ofexamining the entire

document and determining the meaning of the amendment as a whole, the City Council focused

on isolated words and phrases that they found caused ambiguity. If the City Council had

examined the entire amendment as a whole, it would have seen that no ambiguity existed in the

phrase “existing landfill” which was the facility at U.S. Route

45/52

and south Road (“Kankakee

County Landfill”) and that only expansion of that facility would be consistent with the intentions

of the County. This is true because the Amendment specifically provided:

It is the intent ofKankakee County that no landfills or landfill operations be sited,

located, developed or operated within Kankakee County other than the existing

landfill located southeast of the Intersection of U.S. Route 45/52 and 6000 South

Road in Otto Township, Kankakee County, Illinois. The only exception to this

restriction on landfilling is that an expansion of the existing landfill would be

allowed under this Plan.

Although T&C argued that there were more than 20 landfills within Kankakee County,

Mr. Moose had to concede that only the Waste Management landfill was operating. T&C II,

6/26/03 Tr. Vol. 3-C, pp. 57-58. He was also forced to concede that the Amendment clearly

defines the existing landfill by identifying its exact location at the intersection of U.S. Route

45/52 and 6000 South Road.

Id,

at 81-82. Mr. Moose also conceded that he was unaware of

whether the proposed landfill will be located next to any landfill (whether open or closed), let

alone the current operating landfill.

Id.

at 87. Therefore, even if the “existing landfill” had not

been identified by its exact location, the application would still be directly inconsistent with the

Plan. Because the Plan clearly identifies what is meant by “existing landfill,” the City Council’s

finding that the Plan was ambiguous is against the manifest weight of the evidence.

The Kankakec County Waste Management Plan is Clearly

Unambiguous.

The City of Kankakee has already admitted that it understands that the meaning ofthe

February 11, 2003 Amendment is to exclude all landfills in Kankakee County, other than an

expansion of the Waste Management facility based on its Findings of Fact and Conclusions of

Law. The City Council’s conclusion that the facility at issue is consistent with the County’s Plan

is directly contrary to the City Council’s conclusion that “the plan, as repeatedly amended by

Kankakee County constitutes an illegal and unconstitutional infringement upon its statutory

authority to site a solid waste disposal facility and upon its constitutional authority as a Home

Rule Unit of Government.” T&C II, Pet. Ex. 1, para.5. In order to find that the Plan was illegal

and unconstitutional, the City Council must have concluded that the Plan explicitly and clearly

prohibited the siting of any landfill other than an expansion of the Waste Management Facility.

Therefore, the City Council’s conclusion that the T&C facility is somehow consistent with that

plan is entirely disingenuous.

In another proceeding, the City of Kankakee has also admitted that it understands that the

Plan intends forno landfills other than expansion ofthe Waste Management facility. This is true

because the City filed an injunctive case, wherein it made the judicial admission that no landfills

can be sited in the County “anywhere but adjacent to the County’s landfill.” T&C II, Pet. Ex. 12,

Furthermore, the City acknowledged that “the Kankakee County Solid Waste Management

Plan prohibits siting and development of a landfill within Kankakee County unless it is

contiguous with the currently operated landfill in Kankakee County.” T&C II, Pet. Ex. 5. The

City of Kankakee further admitted that “Waste Management also owns andlor controls all of the

land contiguous to the current site.”

Id.

Therefore, the City of Kankakee had no problem

understanding the County Plan when it filed its injunctive action against the County. It would be

disingenuous, and evidence of extreme bias, for the City to now hold some few weeks later that

the County Plan is ambiguous or capable of any reading that would allow the siting of a new

landfill.

Finally, the City Council’s conclusion that the Application was consistent with the Plan

because “no other siting or expansion has currently been approved for any other site within

Kankakee County” T&C II, Pet. Ex. 1, p. 29, para. 4 is also against the manifest weight of the

evidence. In fact, at the time ofthe hearing, the expansion of the Waste Management facility had

been approved by the local siting authority. Although that siting was later reversed by the IPCB

for lack of jurisdiction, that does not negate the fact that there was local approval for the

expansion ofthat facility. Furthermore, the fact that there was no current approval of the Waste

Management expansion at the time the City’s decision was made does not negate the clear intent

of the plan, which is to have no new landfills other than an expansion of the existing Waste

Management facility.

It is clear that the City Council’s conclusion that the Application was somehow consistent

with the County’s Solid Waste Management Plan is illogical and unsupportable. It also not based

on the evidence or testimony presented because no one ever testified that the proposed facility

was consistent with the Plan. Rather, Mr. Moose testified that as he understood the County Plan,

“we are not inconsistent with that plan.” T&C II, 6/26/03 Tr. Vol. 3-C, 52. He did not testify, as

the Act requires, that “the facility is consistent with that plan.”

415

ILCS

5/39.2(a)(viii).

The

two standards are logically and factually distinct.

United States v. Northeastern Pharmaceutical

& Chemical Co.,

810 F.2d 726, 747 (8th Cir. 1986) (for purposes of statutory construction, “not

inconsistent” is not the same as ‘consistent”). As a result, there was no evidence even presented

that the proposed facility was consistent with the County’s Plan. Therefore, this Board should

find that the City Council’s decision with respect to criterion eight is against the manifest weight

of the evidence.

There Is No Evidence That An Independent Entity Prepared The Property

Value Protection Program Contained Within The Application Or That The

County Approved It.

Pursuant to the March 12, 2002 Amendment, any application for a proposed facility must

include a Property Value Guarantee Program “prepared by an independent entity satisfactory to

the County.” PCB II, C1626-1776, Public Comment ofthe County of Kankakee. However, no

evidence was contained in the application or presented by T&C in the hearing that such a

program was established by an independent entity. Furthermore, no evidence was introduced by

T&C that the County ever approved the independent entity that was to develop the program. No

expert testimony was offered by T&C that these Plan requirements were met.

To the contrary, Mr. Karl Kruse, the Kankakee County Board Chairman, filed an

affidavit which explicitly provides that “at no time has T&C sought the County’s review and

approval of an independent entity to prepare a property value guarantee program.” T&C I,

Affidavit of Karl Kruse, pan.

Because T&C failed to present expert testimony of consistency

with this requirement, and because the evidence is irrefutable that T&C failed to meet this

requirement of the Plan, the City Council’s conclusion that the application is consistent with the

County Solid Waste Management Plan is against the manifest weight of the evidence.

There Was No Evidence That Any Environmental Damage Fund Or

Insurance Was Accepted, Or Even Offered To The County, For Approval,

Nor Was A Domestic Water Well Protection Program Submitted To Be

Approved By The County.

The Solid Waste Management Plan explicitly required that any entity that intended to

operate a landfill within its borders provide either an environmental contingency escrow fund

with a minimum deposit ofone million dollars ($1,000,000) or some other type of payment or a

performance bond or policy approved by the County. PCB II, C1626-1776, Public Comment of

the County of Kankakee, The application entirely fails to address the requirement of County

approval, and T&C offered no expert testimony on the issue.

Furthermore, Mr. K.ruse’s affidavit affirmatively establishes that “at no time has T&C

submitted a performance bond or policy of onsite/offsite environmental impairment insurance to

the County for its review and approval”. T&C I, Affidavit ofKarl Kruse, para. 3. Likewise, “at

no time has the County reviewed or approved any environmental contingency escrow fund or

other type of payment, performance bond or insurance policy.”

Id.

at para. 4. The Plan required

any applicant to submit to the County a domestic water well protection program for review and

approval. However, T&C presented no evidence that this occurred, and Mr. Knise testified by

affidavit it did not occur. Id. at para. 6. Therefore, the City Council’s decision that Criterion viii

was met is against the manifest weight of the evidence because the Application is inconsistent

with the County Solid Waste Management Plan.

III. THE CITY COUNCIL PROCEEDINGS WERE FUNDAMENTALLY UNFAIR

Facts

Improper Communications Of The Applicant And Collusion With The City

Council That Occurred After The Last Application Was Approved And

Before It Was ReViled On March 7, 2003.

Mr. Thomas Volini admitted that since August 19, 2002, agents of T&C have had

numerous communications with the City. PCB II, Pet. Ex. 23, p. 8. These communications

included discussions regarding the refihing of the Application, the transmission of a revised siting

ordinance, and numerous communications regarding the industrial park that is proposed to be

attached to the landfill.

Id.

at 9-12, 17-18. Mr. Volini met with the City Council on February 3,

2003, in an “executive session” meeting to discuss an appeal of the PCB decision disapproving

the application.

Id.

at 12, 19. In the middle of February 2003, he also communicated with the

Mayor and the City Attorney again about refihing the application and the notices that would be

filed.

Id.

at 12-13. He also admitted to communications in January of 2003 with the City about

the City hiring a geological consultant.

Id.

at 16. Mr. Volini even telephoned several companies

on behalf of the City of Kankakee to determine their interest and qualifications in acting as a

consultant for the City.

Id.

at 16-17. Mr. Volini also had numerous communications with the

Mayor regarding the industrial park.

Id.

at 17-18.

Mr. Volini was invited to the February 3, 2003 meeting by the Mayor’s secretary. Mr.

Volini had already told the City that he intended to refile the application and, therefore, the

purpose of the February 3 meeting was to discuss appealing the PCB decision.

Id.

at 19.

Newspaper reporters and members of the public were expelled from the City Council Chambers

and City Attorneys Mr. Bohien, Mr. Power, the Mayor and the City Council then met with Mr.

Volini in closed session.

Id.

at 19-20. Mr. Volini discussed with the City Council his intention

to appeal the PCB decision and at the same time file a renewed application for site location

approval “on the same property as the first case.”

Id.

at 21. He also recalled several of the

councilmen being “incensed at the County’s action and Waste Management’s action.”

Id.

at 21.

Mr. Volini admitted that Mr. Yarborough had worked for Mr. Vohini in the mid-1980’s.

Id.

at 31. Mr. Volini admitted that he personally spoke to Mr. Yarborough on behalfof the City.

Id.

at 33. He also contacted several other individuals on behalf of the City, including Andrews

Engineering, George Litwinishen, and several individuals from Harza Engineering.

Id.

at 34-35.

Mr. Volini dissuaded the City from hiring any consultant who had ever done significant work for

Waste Management, Inc.

Id.

35.

Mr. Vohini told Mr. Yarborough that Envirogen was the

engineer on the project and had done the boring work in two or three phases. He told Mr.

Yarborough if he needed to get further information he could get it from Envirogen and he

mentioned Devin Moose as a contact person.

Id.

at 36. Mr. Volini does not know if Mr.

Yarborough contacted Envirogen.

Id.

at 38.

Testimony

Hearing

Officer

Boyd Re:

Improper

Procedures

And

Ex Pane

Communications

The deposition of Hearing Officer Robert Boyd was taken and admitted at the PCB

hearing as substantive evidence. PCB II, Pet. Ex. 15. That deposition is very telling as to the

improper contacts between the attorney for City staff (who also represented the City Council)

and the hearing officer. When Mr. Boyd was retained to act as the hearing officer in this case, he

actually resided in Florida.

Id.

at p.

Mr. Boyd explained that he had practiced in Kankakee

for decades and he has known the Mayor ofKankakee for over 25 years, and has known the City

Attorneys, Christopher Bohlen, Pat Power, and Kenneth Leshen that long as well.

Id.

at 5-7. In

fact, City Attorney Bohlen interviewed with Hearing Officer Boyd’s law firm when Mr. Bohlen

first caine to Kankakee.

Id.

at 9.

When Mr. Boyd was hired by Mr. Bohlen to be the Hearing Officer for T&C’s refiled

application, Mr. Boyd “knew that they the City had been trying to get a new landfill.”

Id.

at 11.

Mr. Boyd also admitted that before he was hired by City Attorney Bohien, he had “absolutely no

familiarity” with landfill siting law,

Id.

at 12. At no time was Mr. Boyd ever provided a copy of

the PCB decision reversing the prior siting approval of the City of Kankakee.

Id.

at 13. Mr.

Boyd was asked “When you were initially hired you were aware that the City was in favor of

siting, correct?” to which he first responded, “Yeah I guess so.”

Id.

at 15. Mr. Boyd later

changed his answer, indicating that he was not sure when he first became aware that the City of

Kankakee was in favor of it, but he nonetheless acknowledged that by the time the hearing

started he was aware that Mayor and the City in general were in favor ofsiting.

Id.

at 16-17.

Before the hearings commenced, Mr. Boyd reviewed the City siting ordinance and was

aware that it called for him to draft proposed findings of fact and conclusions at law.

Id.

18-19. Mr. Boyd did not draft the proposed findings of fact and conclusions of law, but instead

relied upon 28-29 pages of the document were the work product of the City attorneys and staff

and perhaps two to three pages of his own work product. Mr. Boyd initially testified that he

drafted the proposed findings of fact and conclusions of law. However, Mr. Boyd later explained

that Mr. Bohlen sent him the findings of fact and conclusions of law that were issued in regard to

the 2002 application (drafted by Attorney Bohlen), and then Mr. Boyd “made the changes that I

thought were appropriate based on what I had heard and sent them back to them” (the city).

Id.

at 19-20. They made some changes, as I remember, and sent it back and, you know, I reviewed

the changes and they seemed okay to me and I said okay.”

Id.

at 20.

Mr. Boyd believed that the initial findings of fact and conclusions of law were sent to

him by Mr. Bohien or a secretary in the law department for the City ofKanicakee.

Id.

at 20. Mr.

Boyd could not recall whether the 2002 Findings of Fact and Conclusions of Law sent to him

had been amended to reflect the evidence introduced at the 2003 hearing.

Id.

at 22. Mr. Boyd’s

best recollection is that he reviewed the 2002 findings of fact, typed up 2-3 pages of additional

changes and sent them back to Mr. Bohlen or someone at his office.

Id.

at 25-26, 29. However,

Mr. Boyd denied that he still possessed any copies of the Findings and Conclusions that Bohien

sent him. He also denies having any copy of his two to three page additions and changes. He

examined his computer, and testified he could not find any of his proposed changes to the

Findings of Fact or Conclusions of Law, nor could he find any reference to the document on the

computer.

Id.

at 27-28.

Mr. Boyd got the document back from the City of Kankakee, at which time the City had

changed it. Mr. Boyd testified the City had “a consultant or somebody up there that added some

things they thought were appropriate or modified them and then sent them back.”

Id.

at 32. Mr.

Boyd had “no earthly idea” who the consultant was.

at 36. Mr. Boyd believed that he signed

the document, but eventually conceded he may never have signed it.

Id.

at 32.

At no time did Mr. Boyd provide an opportunity to any parties, other than the City of

Kankakee, to review and amend Mr. Boyd’s Findings of Fact and Conclusions ofLaw. The City

actually never filed any proposed findings of fact with the City Clerk, and, rather, the only

document that was provided to the City Council was the document which was purported to be the

work product of Hearing Officer Boyd. PCB II, Pet. Ex. 14, p.20.

Mr. Boyd does not know if the copy that he eventually approved was the copy that was

actually presented to the City Council for review.

PCB II, Pet. Ex. 15, p. 38. Boyd does

not

know if the copy that was ultimately signed by the Mayor was the copy that he had in fact

approved.

Id.

38. Mr. Boyd did not attend the meeting of the City Council where the vote was

taken concerning the landfill application.

Id.

at 46.

Mr. Boyd had no explanation as to why his computer did not contain any reference to the

Findings ofFact and Conclusions of Law.

Id.

at 28, Interestingly, his computer only contained

notes of the summarized evidence recap, which was sent by the Attorney for the Applicant,

George Mueller.

ld.

Mr. Boyd did not know if the proposed Findings of Fact and Conclusions

of Law that he approved were part of the record, though he assumed so.

Id.

at 39. In fact, that

document (T&C II, Pet. Ex. 2) was never made part of the public record, and rather, only the

Findings ofFact and Conclusions of Law that were ultimately signed by the Mayor were put into

the record. T&C II, Pet. Ex. 1. The evidence is also clear that those Findings of Fact and

Conclusions of Law were substantially amended by Mr. Bohlen after the City Council vote. See

Appendix B.

The only documents that Hearing Officer Boyd recalled being sent to him for review by

the City after the hearing and before the drafting ofhis findings were the transcripts of the 39.2

hearing, the proposed findings offact of the parties, and the findings ofthe 2002 hearing.

Id.

43. Mr. Boyd had no recollection ofthe public comments being sent to him for review before he

approved the Findings of Fact and Conclusions of Law that were drafted on his behalf.

Id.

at 45.

Mr. Boyd also does not recall ever seeing any of the Yarborough reports, despite the fact that the

Findings of Fact and Conclusions ofLaw rely heavily upon those reports.

Id.

at 39, 40, 45. Mr.

Boyd testified that other than reviewing statutes and annotations, he limited his review of

documents at the time he made his additions to the Findings ofFact to the documents that were

in the public record as of July 28, 2003.

Id.

42-43. The City of Kankakee has admitted that the

Yarborough reports were not in the public record at the time it closed on July 28, 2003. PCB II,

Pet. Ex. 24; PCB II, 12/2/03 Tr. 141.

Testimony of Attorney Bolilen Regarding Substantive and Prejudicial

Pane

Communications, Pre-adjudication of the Merits and Improper

Procedures.

The City Attorney, Christopher Bohlen, was deposed on December 1, 2003, and his

deposition was admitted at the PCB hearing as substantive evidence. PCB II, Pet. Ex. 14. Mr.

Bohien testified that on February 3, 2003, Thomas Volini attended a portion of the executive

session ofthe City Council.

Id.

at 3. Mr. Bohien refused to produce the minutes of the executive

session meeting based upon an unspecified privilege even though Mr. Bohien acknowledged that

Mr. Volini was not a client of the City Attorney’s.

Id.

The executive session meeting was

attended by the alderman, the Mayor, the City Clerk, possibly Richard Simms of the City

Engineering Department, as well as Mr. Volini.

ld.

The only individual present who was

not an employee or agent of the City was Mr. Volini.

Id.

Mr. Bohlen refused to answer whether the City discussed suing the County at that

meeting on February 3, 2003.

Id.

Mr. Bohien admitted that the City and Mr. Volini had a

discussion “regarding the strategy” concerning who would file an appeal to the Third District

Appellate Court of the PCB’s decision in

Town & Country I,

and what the City’s role would be in

that action. Mr. Volini discussed his intention to “refile a new application.”

Id.

The City Counsel authorized lawsuit 02-CH-400 in the Kankakee County Circuit Court to

be filed against Kankakee County, seeking to bar the County from using its solid waste funds to

pay its legal fees associated with the City siting hearings and appeals.

Id.

at 11. The City

Council also authorized the filing of the injunctive action 03-CH-166, in that same court, just

two weeks before the City siting hearing was scheduled to commence.

Id.

at 12. That lawsuit

sought to enjoin the County from enforcing its Solid Waste Management Plan. PCB II, Pet. Ex.

12.

Mr. Bohien was involved in retention of Ronald Yarborough, Ph.D., by the City of

Kankakee.

PCB 11, Pet. Ex. t4, p. 13. The City Council was never made aware that Mr.

Yarborough had been employed by Mr. Volini previously.

Id.

Mr. Bohlen discussed with the

alderman the retention of Mr. Yarborough to provide geological consulting to Mr. Simms.

Id.

16.

Mr. Bohlen admitted that he drafted part of the Hearing Officer’s Proposed Findings of

Fact and Conclusions of Law that were voted upon by the City Council.

Id.

at 18. Mr. Simms,

City employee, also had input, conditions he drafted that were contained in the 2002 Findings of

Fact were also incorporated into the 2003 Findings of Fact.

Id.

54-55.

Mr. Bohien initially

maintained that his involvement in drafting the Hearing Officer’s Proposed Findings of Fact and

Conclusions was limited to the references within the document to Mr. Yarborough, the

Yarborough reports, or the condition requiring grouting.

Id. at

18, 21. However, on further

examination Mr. Bohlen admitted that he may have drafted other sections ofthe report including

the references to the purported improper infringement of the City of Kankakee’s home rule

authority found in Paragraph T on Page 3 of the Findings that were ultimately signed by the

Mayor.

Id.

at 22, PCB H, Pet. Ex. 1, Mr. Bohlen maintained that all drafts ofthe Findings of

Fact and Conclusions of Law that were exchanged between Mr. Boyd and Mr. Bohlen’s office

before they were tendered to the City Council were destroyed, including all copies of the

documents that were contained in e-mails, computer programs, telefaxes, and hard copies.

Id.

20, 38, 43-44.

The 2002 Findings of Fact, as well as the proposed findings submitted by the parties,

were sent to Mr. Boyd in early August with a cover letter from Nancy Smithburg, stating that she

hoped he enjoyed his reading.

Id.

at 19. Mr. Bohlen testified that Mr. Boyd then contacted Mr.

Bohlen to ask if there was any way that the 2002 findings could be sent electronically, and the

document was sent to Mr. Boyd by e-mail.

Id.

19.

At that point, Mr. Boyd e-mailed back to

Mr. Bohlen’s office the proposed findings of fact placed into a form appropriate for the 2003

hearing.

Id.

at 19-20. Mr. Bohien’s office created a “hard copy”, and made revisions to Mr.

Boyd’s proposed findings and e-mailed back the entire document (which included references to

Yarborough’s conditions).

Id.

Mr. Bohien denied still having any “hard copies”, the computer

copies or c-mails of that version. Mr. Boyd ultimately faxed back “a couple of pages with

additional changes” to be incorporated into the final document. Those changes were then made

and that document was then given to the City Council.

Id.

19-20.

Mr. Bohlen denied that he now has the e-mails that were sent back and forth to Mr. Boyd,

even though they were requested in this litigation.

Id.

at 20. Mr. Bohlen provided two reasons;

one that he intentionally deleted the e-mails, and second, the computer system in his office went

down, has been subsequently replaced, and the old e-mails (prior to October of 2003) are no

longer available.

ld.

20-21. On further examination. Mr. Bohlen admitted that after he e-

mailed the 2002 findings, Mr. Boyd e-mailed back a document (purported to be proposed

findings for 2003), which included a number of changes.

When he received the e-mail from Mr. Boyd, he opened the document and inserted

references to the Yarborough reports.

Id.

at 39. It made sense to Mr. Bohlen that he would have

saved the document before he would have input changes to it.

Id.

at 40. However, Mr. Bohlen

asserted that he did not save the proposed findings on his company’s office server and, instead,

downloaded it to his own hard drive and then lost all ofthe documents on his hard drive.

Id.

40-41. Mr. Bohien either e-mailed or faxed the document to Mr. Boyd after adding the

references to the Yarborough report. Mr. Boyd then made some additional changes, and it was at

that time that Mr. Bohien believes Mr. Boyd wanted two additional pages of inserts included in

the document. Mr. Bohien recalls those two pages being faxed to him.

Id.

at 42.

That fax was not retained, but was given to one of Mr. Bohieri’s secretaries or legal

assistants to input into the master document.

Id.

at 42. Mr. Bohlen denied that the document

was on his assistant’s computer and instead maintained that she made the changes on his

computer even though she has her own computer.

Id.

at 43. He offered no explanation as to why

his secretary would have used his computer rather than her own.

Id.

Soon after stating that his

secretary made the changes on his computer, Mr. Bohlen admitted that he did not know whether

she made the changes on her or his computer.

Id.

at 44. Mr. Bohlen also testified that the

“virus” that affected his computer also caused her computer to “crash” and wiped out the

documents on those computers.

Id.

at 44. The general documents of his firm that were held on

the server were not lost, but Mr. Bohlen denies that any of the communications he had with

Hearing Officer Boyd or any version of the “Hearing Officer’s” Findings of Fact and

Conclusions of Law were contained on that general server.

Id.

at 40-41. After his secretary

made the two pages of changes from Mr. Boyd, Mr. Bohlen thinks she faxed it back to Mr.

Boyd. No copy of that fax document has been produced either, nor has a fax cover sheet been

produced.

It is Mr. Bohlen’s recollection that at that time Mr. Boyd approved the document,

which was then submitted to the City Council.

Id.

45.

Mr. Bohlen testified that the document submitted to the City Council was Deposition

Exhibit 2 (PCB II, Pet. Ex. 2). At no time did the City draft proposed findings of fact which

were filed with the City Clerk before the close of the public comment period. PCB II, Pet. Ex.

14, p. 30. The City Council was informed that Mr. Boyd had drafted the Findings of Fact and

Conclusions of Law that they were given to vote upon.

Id.

Mr. Boyd supplied a cover letter to

the proposed Findings ofFact that was given to the City Council which provided:

Consistent with my service as hearing officer for the public hearing held to

determine the sufficiency of the application for approval of a new landfill filed

with the City of Kankakee by Town & Country Utilities, Inc. and Kanicakee

Regional Landfill, LLC I have prepared certain findings of fact.

(Id.

at 33; PCB II, Pet. Ex. 7) (emphasis added).

Mr. Bohlen admitted that nowhere within the letter does it indicate that the Findings and

Conclusions were drafted by anyone other than Mr. Boyd. Mr. Boyd’s letter also states that the

findings “incorporate my conclusion resulting from my review of the evidence and testimony

presented at the hearing.”

Id.

The August 18, 2003 City Council minutes indicate that Mr. Bohien and the Mayor

explicitly informed the City Council that the findings of fact that they were to work off of was

drafted by Hearing Officer Boyd. PCB H, C1907. There is no reference within the Finding of

Facts and Conclusions of Law that it was drafted in large part by City staff and Mr. Bohien. The

City Council was not informed on August 18, 2003 that Mr. Bohlen had been communicating

with Mr. Boyd regarding the Findings. PCB II, 0907-1927.

Mayor Green told the City Council “Mr. Boyd, of course, is not here, but Mr. Bohlen is

going to go through the recommendation of the Hearing Officer.” PCB II, C 1907. Mr. Bohlen

also told the City Council “it is basically the document that the Hearing Officer has.. .he is

required to make recommended findings of fact.”

Id.

Mr. Bohlen then solicited a vote upon

every page of the “Hearing Officers” Findings of Fact and Conclusion of Law.

Id.

at 1907-1927.

The City Council subsequently approved and adopted every page of the “Hearing Officer’s”

Findings.

Id.

Throughout the August 18, 2003 meeting, the City Council posed numerous questions to

Mr. Bohlen and City Staff, which were responded to with information outside of the record.

ld.

For example, Mr. Bohien advised the alderman that certain legislation that had been proposed by

Representative Novack had died.

Id.

at C1910. Mr. Simms then advised the City Council that

there was insufficient evidence that a double liner should be required by the EPA.

Id.

at C 1911.

The Mayor also advocated in favor of the Applicant when he indicated: “1 think one thing we

have to remember is if at any time a change is made legislatively, and the Illinois EPA says that

that is what must be done then that is what will be done by the developer. There is not question

in our mind.”

Id.

at C1913. As to criterion viii, Mr. Bohien advocated to the City Council that

the County plan was not appropriately passed. Id. at C 1923.

Mr. Bohien entered an appearance on behalf of the City of Kankakee at the siting

hearings. PCB II, Pet. Lx. 14, p.26. He did not draw any distinction between representing the

City Council or the City Staff or the Mayor and, rather, represented the City as a whole.

Id.

26-27. He had represented the City Staff and the City Council from the date the application was

filed through the date ofhis deposition (though he believed his representation would be curtailed

now thatMr.theBohienCity hadadmitteddisclosedthathimtheascopya witness).of

the document

Id.4

signed by the Mayor as the Findings

ofFact and Conclusions ofLaw of the City Council was actually different than the copy that the

City Council voted upon on August 18,

2003.

Id.

at 46-47. The document marked as Deposition

The fact that Mr. Bohien was representing the City Council at the same time he was representing the City

staff was not discovered until the afternoon of December 1, 2003, and the ‘CR hearing commenced on

December 2, 2003. Therefore, the County of Kankakee did not have the opportunity to further investigate

Mr. Bohien’s communications with the City Council by, for example, taking the depositions of the City

Council.

Exhibit No. 2 (PCB II, Pet. Lx. 2) was the document that was actually tendered to the City

Council as Mr. Boyd’s proposed Findings of Fact and Conclusions of Law.

Id.

at 46. The

document actually was not entitled “proposed” findings and was rather simply entitled Findings

ofFact and Conclusions of Law. PCB II, Pet. Lx. 2.

After the City Council meeting, Mr. Bohlen prepared another draft, which he said was

based upon some comments of minor typographical errors mentioned by the City Council.

Id.

48. However, a comparison of the document signed by the Mayor (PCB II, Pet. Lx. 1) to the

document which was actually adopted by the City Council (PCB II, Pet. Ex. 2) shows numerous

substantive changes. See Appendix B hereto. David Schaeffer, who is the City Planner for the

City of Kankakee, suggested numerous changes and amendments to the new document that had

been drafted by Mr. Bohlen after the City Council meeting. PCB II, Pet. Lx. 8; PCB II, Pet. Lx.

14, p. 48. Mr. incorporated most of the changes suggested by Mr. Schaeffer. PCB II, Pet. Lx.

14, p. 49; see also Appendix B hereto. The document was then signed by the Mayor, and the

City Council was not reconvened to vote on the amended document prepared by Mr. Bohlen and

Mr. Schaffer.

Id.

52.

The new document drafted by Mr. Bohlen after the vote changes the references of

“existing landfill” (referring to the Waste Management facility which is presently operating in

Kankakee County) to “current” or “operating landfill”

Id.

at 51; see also PCB II, Pet. Lx 2, as

compared to PCB II, Pet. Ex. 1, and Appendix B hereto. Furthermore, the document that was

adopted by the City Council did not make any specific individual finding that criteria 3 through 9

were met, but Mr. Bohien nonetheless added that specific finding to each of these criteria,

without being advised by the Council to do so. PCB II, Pet. Lx. 14 at

52.

Testimony Of Ronald Yarborough Re: His Communications With Applicant

And The Secret Opinion Testimony He Provided To The City.

The deposition of Ronald Yarborough, Ph.D., was admitted at the PCB hearing as

substantive evidence. PCB II, Pet. Lx. 16. Mr. Yarborough is a registered geologist in the State

of Illinois, has a Ph.D. in economic geography and economics, but is not an engineer.

Jd.

at 6.

He first became involved in the T&C landfill application after he received a telephone call from

the President of T&C, Tom Volini, on February 3, 2003.

Id.

at 9. Mr. Yarborough had known

Mr. Volini for over 20 years and had worked for him on two different occasions in the past.

12-15.

He also worked for Andrews Environmental Engineering (whom Mr. Volini had hired in

the past) as well as Weaver, Boos and Gordon (the original engineer on this project before

Envirogen took over).

Id.

at 8, 12-15. Mr. Yarborough has also testified on behalfof Mr. Volini

in the past.

Id.

at 14.

On February 3, 2003 (which was the day that Mr. Volini met with the City Council), Mr.

Volini asked Mr. Yarborough if he would be interested in reviewing some information on the

landfill for the City of Kankakee.

at 9. Mr. Yarborough responded that he would do so, and

Mr. Volini submitted Yarborough’s name to the City Council.

Id.

Mr. Yarborough was then

contacted by City Attorney Bohien on February 11, 2003, who requested Mr. Yarborough’s

curriculum vitae, which was then faxed to attorney Bohien.

Id.

at 9-10. In late February to early

March of 2003, Mr. Yarborough received a telephone call from an engineer for the City, Richard

Simms. Mr. Yarborough met with Mr. Simms on March 14, 2003 at which time Mr. Simms

brought boxes ofdocuments for Mr. Yarborough to review.

Id.

at 10.

When Mr. Volini telephoned Mr. Yarborough in February of 2003, Mr. Yarborough

understood that Mr. Volini was affiliated with the Applicant.

Id.

at 11. Mr. Yarborough also

understood that Mr. Volini was in favor of siting being approved.

Id.

at 27. In April of 2003,

Mr. Yarborough telephoned Mr. Simms, who gave him the telephone number of the Applicant’s

experts at Envirogen to contact to obtain a copy of the report ofStuart Cravens.

Id.

at 24.

Mr. Yarborough sent opinion letters to Richard

Simms

of the City on April 14, May 1,

and July 24, 2003. PCB II, Pet. Exs. 3-5. Those correspondences were filed with the City Clerk

after the close of the public record. PCB II, Pet. Lx. 24. Mr. Yarborough also sent an e-mail on

May 2, 2003, which was not produced by the City of Kankakee. The May 2, 2003 e-mail

criticizes the well logs performed by Envirogen. PCB II, Pet. Ex. 16, p 19; PCB II, Pet. Lx. 11.

Mr. Yarborough never sent his correspondences to the City Clerk to be put into the public record

but, rather, sent them to Richard Simms. PCB II, Pet. Lx. 16, p 26.

Mr. Yarborough’s main report is dated April 14, 2003, and he ultimately concluded that

the application should go forward because the Illinois Environmental Protection Agency would

have to take a harder look at it.

at 28. He also “felt very, very strongly” that grouting be

performed on any open joints that were visible in the bedrock before the landfill liner was

constructed.

Id.

at 31. However, no analysis or testing was done as to the feasibility of grouting

or its affect on the liner system or the purported inward gradient. At no time was Mr.

Yarborough ever asked to testify at the siting hearing by the City of Kankakee.

Id.

at 29-30.

Interestingly enough, shortly before his deposition commenced on November 14, 2003 he was

contacted by Mr. Volini and Mr. Volini’s attorney, George Mueller who prepared him for his

deposition.

Id.

at 22. The City ofKankakee did not attend the deposition preparation meeting.

Stipulated Testimony Of City Clerk Anjanita Dumas.

The City stipulated that, if called, the City Clerk would testify that the Yarborough

reports were not put into the record before the public comment period closed. PCB II, Pet. Lx.

24. Instead, the April 14, May 1, and July 24, 2003 correspondence was not filed with the City

Clerk by the City Attorney’s office until July 31, 2003, which was after the public record closed

on July 28, 2003.

Id.

Mr. Bohlen has also admitted that the Yarborough reports were not

available to the public until after the close of the public comment period. PCB II, 12/2/03 Tr.

144. However, Mr. Simms admitted that he spoke with the Applicant about the reports during

the siting hearing. T&C II, 6/28/03 Tr. Vol. 5-A, 21.

It was also stipulated that the public comment filed by the County was timely filed. PCB

II, Pet. Lx. 24. The City had no choice to so stipulate, as the County possessed the file stamped

copies of its public comment dated July 28, 2003. The public comment was filed at the same

time as the County’s Post Hearing Brief and Proposed Findings of Fact and Conclusions of Law.

The Certificate of Record drafted by Mr. Bohien and the City Clerk erroneously indicates that

the Proposed Findings and/or additional public comment were filed after the close ofthe record.

PCB II, Cert. of Record.

Improper Communications And Evidence Of Pre-Adjudication That

Occurred Before The Filing Of The March 13, 2002 Application.

The Mayor ofKankakee, Donald Green, testified that he realized at some point that funds

could be generated for the City by negotiating a Host Agreement with a landfill operator. PCB I,

11/6/02 Tr. 169. However, the land that T&C proposed to build a landfill upon was not within

the City of Kankakee and instead was located in the unincorporated County lands over a mile

from the city streets of the City of Kankakee. PCB I, 11/4/02 Ti. 229. Therefore, the City,

through Mayor Green and Mr. Bohien, assisted T&C in seeking the annexation of the property

which was not contiguous to the City of Kankakee except for a narrow railway strip that

extended from the City out into County property. PCB I, 11/4/02 Tr. 225. The proposed area of

the landfill is actually surrounded by County properties that are not annexed into the City. PCB

1, 11/4/02 Tr. 224-227; PCB 1, 11/6/02 Tr. 153. There were numerous communications between

the City and the Applicant concerning the annexation of the land and renegotiation of the Host

Agreement, PCB 1, 11/4/02 Tr. 158-241. Mr. Bohlen and Mayor Green were aware that once

the property was annexed into the City that the City would be the siting authority instead of the

County. PCB 1, 11/6/02 Tr. 153; PCB I, 11/4/02 Tr. 224. No other explanation for the

annexation has been provided.

At the time Mr. Bohien was assisting the Applicant in the annexation process, he

reviewed the county solid management plan that existed at the time and “believed even that then

it did called for only one landfill.” PCB 1, 11/6/02 Tr. 222. He also knew that there already

was a landfill operating within the County.

Id.

at 222-223.

At the same time, Mayor Green and City Attorney Bohlen were also in the process of

negotiating a Host Agreement with T&C.

Id.

at 227-229. This agreement provided an estimate

that in the first ten years of operation the landfill would generate between $4 million and

million per year for the life of the facility, which was estimated to be 25 to 30 years.

Id.

at 236.

The Applicant also assisted in drafting the City’s Solid Waste Management Plan, and drafted the

City’s Ordinance and Rules and Procedures for the siting hearings.

Id.

at 249; PCB I, Pet. Lx. 2

On or about February 19, 2002, the Applicant, its attorney, the project engineer and other

Applicant witnesses met with the entire City Council. PCB I, 11(4/02 Tr. 229. Mr. Volini

explained that the Applicant wanted an “unfettered opportunity to talk to you without the filter of

lawyers, without the rancor and the back and forth and that, unfortunately, the lawyers bring to

the process is we want to be able to speak with you person to person about things that we believe

in, concepts that we’ve proved and environmental protection that we’ve achieved.” PCB I,

C3 145 (emphasis added) The Applicant then had its experts speak about the purported

compliance of the soon to be filed Application with the section 39.2 criteria.

Id.

at C3149-3152.

The Applicant also provided “expert testimony” that the formal 39.2 hearing and the objectors’

witnesses could not be trusted.

Id.

at C3153. Mr. Volini closed by stating “you’ll hear this

without so much emotion and with a bunch of lawyers fighting with each other in about 120

days, but we wanted you to hear it from us

first.” Id.

at C3

156.

At no time did the City voice any objection to any of those statements, nor did they at any

direct the City Council to disregard any statements made by the applicant and its agents. PCB 1,

11/4/02 Tr. 310; PCB 1, 11/6/02 Tr. 184. No notices were sent to the County or other potential

objectors, nor individuals within 250 feet of the landfill, about the February 19, 2002 meeting, as

required by Section 39.2(b). PCB 1, 11/6/02 Tr. 188, 190.

Argument

Overview.

When one views the totality of the process employed by the City of Kankakee and the

Applicant, it is abundantly clear that the County and the public at large were not provided a

fundamentally fair hearing. The City of Kankakee and the Applicant conspired to create a

completely unfair process whereby the City prejudged the merits of the case before the public

hearings occurred in June of 2003. The record contains ample evidence of improper pre-filing

contacts that occurred before the 2002 application. These contacts included extensive meetings

between the Applicant and the City regarding a host agreement with the City, the Applicant

assisting the City in drafling its own siting ordinances, including the Applicant drafting the rules

and procedures for the City’s siting hearing, and the City Council allowing the Applicant to

make a presentation of its witnesses and evidence concerning the criteria before the first

application was ever filed on March 13, 2002. The applicant went so far that during that 2/19/02

City Council hearing the Applicant informed the City Council that at the “formal” hearing, the

objectors’ witnesses could not be trusted.

At the 2002 hearing, the Mayor, who is a known advocate in favor of the project,

appointed himself as hearing officer and only stepped down after motions to disqualify were

filed. He then appointed his right hand man, City Attorney Christopher Bohien, to act as hearing

officer even though Mr. Bohlen had been communicating with the Applicant for many months

on a variety of issues. At the siting hearing in June of 2002, ample evidence was submitted that

undeniably established the applicant mischaracterized the bedrock, which was in immediate

communication with the landfill liner as being an aquitard when in reality it is a well known

aquifer. In spite of this, the City Council found that all of the criteria were met. This decision

was rightly overturned by the IPCB, which correctly found that the manifest weight of the

evidence established that criterion ii had not been met.

The City’s determination to site a landfill regardless of the evidence continued after the

PCB disapproved the original application when the City Council met with Mr. Volini on

February 3, 2003 in “executive session.” The City barred all members of the public from

participating in the meeting with Mr. Volini, and, at that time, discussed an intention to refile the

application. The fact that the City was bound and determined to site this landfill regardless of

the evidence was made abundantly clear when the City decided to take the offensive against the

County of Kankakee by filing two separate civil actions in an effort to bar the County from

participating in the siting process. First, the City filed an injunctive and declaratory action

seeking to bar the County from using its Solid Waste Management Funds to pay legal fees

associated with the City’s siting hearings. Next, just two weeks before the siting hearings were

scheduled to commence, the City filed another frivolous lawsuit against the County this time

seeking to “bar the County from attempting to interfere with the siting by the City.” PCB II, Pet.

Ex. 12. Therefore, since the City formally announced its intention of “siting” the landfill in

pleadings even before the 2003 hearings started, it is undeniable that the City prejudged the

merits ofthe application. Of course, both suits were ultimately dismissed.

More unfair conduct occurred during and after the 2003 siting hearings by the City’s

Attorney, who represented both the City Staff and the decision maker, while advocating strongly

in favor ofthe landfill application. The improper conduct continued when the City Attorney had

exparte

communications with the hearing officer and actually drafted substantial portions of the

hearing officer’s proposed Findings of Fact and Conclusions of Law. Those Findings and

Conclusions were then presented to the City Council and the public and parties as if they were

the sole work product of the allegedly independent, unbiased hearing officer. Those findings

were ruled upon and adopted by the City Council.

This was particularly egregious because the hearing officer’s proposed Findings of Fact

and Conclusions of Law were in large part grounded upon certain reports of a Mr. Ronald

Yarborough (misidentified in the Findings and Conclusions as Ralph Yarborough) when those

reports were never made part of the public record, and the hearing officer admitted in his sworn

testimony that he never saw the reports. Therefore, the City Council was led to believe that the

hearing officer found Mr. Yarborough’s testimony to be very persuasive and in support of the

application when, in reality, the hearing officer, and none of the parties (other than the City

itself) had ever seen the reports.

It was not until the discovery process for the Section 40.1 hearing that the parties learned

that it was the City Attorney who actually drafted much ofthe alleged Hearing Officer’s Report.

Worse yet, all of the communications through e-mail and by written drafts between the City

Attorney and the Hearing Officer were conveniently destroyed, or “misplaced” by the City

Attorney, his office staff, and the Hearing Officer. Coincidentally, the Hearing Officer, the City

Attorney, and his secretaries

lost not only the hard copies of the documents, but all e-mail and

computer copies as well.

Perhaps the most blatant example of the unfair procedures employed throughout this

process occurred after the vote of the City Council. After the City Council voted to adopt every

page of the “Hearing Officer’s” proposed Findings and Conclusions, the City Attorney

substantively amended the approved findings without any authorization from the City Council to

do so, and no new vote was ever taken. It was not until discovery at the 40.1 hearing that the

parties learned that the Findings and Conclusions which were signed by the Mayor and put into

the PCB record (PCB 11 Pet. Ex. 1) were actually never reviewed or voted upon by the City

Council. Shockingly, the very findings of compliance with criteria 3-9 were added by Attorney

Bohlen without ever being voted upon by the City Council.

Even though a specific occurrence or practice may not rise to the level of flmdamental

unfairness, the combination of events may render the whole proceeding fundamentally unfair.

American Bottom Conservancy (ABC) v. Village ofFairmont City,

PCB 00-200 (Oct. 19, 2000);

City of Columbia v. St Claire,

PCB 85-177 (April 3, 1986). In this case, like

ABC

and the

City

of Columbia,

the combined unfair practices resulted in an obviously fundamentally unfair

proceeding. There simply was no way that the County of Kankakee could ever convince the City

of Kankakee to deny the application regardless of the clear evidence presented. The County of

Kankakee relies upon and incorporates all of the arguments it made in regard to the prior 2002

hearing of evidence of the pre-adjudication by the City of Kankakee. Though these arguments

were rejected by the PCB in

Town & Country I,

the conduct of the Applicant and the City since

January

2003, when considered with the prior conduct reveal the inevitable conclusion that the

City of Kankakee prejudged the merits of the applications and the process was wholly unfair.

See PCB II, Pet. Ex. 22 at C452-604 and C747-787.

The City Council Pre-Judged The Merits

Of The Application, Had Improper

Communications and Employed Unfair Proceedings.

A Section 39.2

hearing is required to be fundamentally

fair to all participants. 415 ILCS

5/40.1 (2002);

Indy Hauling, Inc. v. Pollution Control Board,

116 Ill.App.3d 586, 596, 451

N.E.2d 555, 564 (2nd Dist. 1983),

aff’d

107 Ill.2d 33, 481 N.E.2d

664 (1985).

If the siting

authority has an unalterably closed mind in matters critical to the disposition of a siting

proceeding, then such proceeding is fundamentally unfair.

Citizens for a Better Environment

Pollution Control Board,

152 Ill.App.3d 105, 112, 504 N,E.2d 166, 171 (1st Dist. 1987). If the

siting authority is biased or prejudiced such that a disinterested observer might conclude that the

administrative body had in some measure adjudged the facts, as well as the law of the case, in

advance of the hearing, then such a proceeding is fundamentally unfair.

Waste Management of

Illinois, Inc. v. Pollution Control Board,

175 Ill.App.3d 1023, 1040, 530 N.E.2d 682 (1st Dist.

1988).

The City’s Prior Refusal To Follow The Evidence At The 2002

Hearing Is In ItselfEvidence Of Pre-Adjudication Of The Merits.

It is undeniable that the City’s finding that criterion ii was met in

Town & Country I

was

against the manifest weight of the evidence. The fact that the City Council members ignored the

manifest weight of the evidence to find compliance with criterion ii (as well as criterion viii) in

and ofitself is evidence of pre-adjudication of the merits. Every single one ofthose City Council

members that voted in favor of the application at the prior hearing voted in favor at the 2003

hearing. The City again willfully disregarded the evidence admitted at the 2003 hearing as is

evidenced by the discussion of the criteria below. The PCB should not limit its review of

whether or not the City pre-judged the merits of this application to the 2003 evidence as one

must look at the totality of the circumstances here, and it is undeniable that the City Council

previously ignored the manifest weight ofthe evidence in regard to the 2002 application.

The City And The Applicant Continued Their Course Of Improper

Conduct After The August 19, 2002 Approval By The City And

Before The Applicant Reified On March 7, 2003.

Improper Communications

The City approved the prior application on August 19, 2002.

In its answers to

interrogatories, the Applicant admits that it had numerous conversations with the City of

Kankakee after that date and before refihing, which are “too voluminous to recall with the

exception that Thomas A. Volini specifically recalls appearing at the Kankakee City Council

meeting February 3, 2003.” PCB II, Pet, Lx. 21, Answer No. 4. “Tom Volini had numerous

conversations with various City officials after August 19, 2002 and prior to filing the instant

siting application.” PCB II, Pet. Ex. 17, Answer No. 2. “Tom Volini participated in an

executive session of the City Council of Kankakee on February 3, 2003, at which time, he

infonned the City Council the likelihood of the intent to file an application for siting, among

other things.”

Id.

Mr. Volini and T&C produced the minutes for part of the February 3, 2003

meeting. However, the minutes for the executive session were withheld by the City. PCB II,

Pet. Lx. 20.

Attorney Bohien, representing the City Council and City staff, refused to produce the

executive session minutes even though he admits that Mr. Volini was never his client, and,

therefore, the attomey-client privilege cannot be asserted. PCB II, Pet. Ex. 14, pp 12-13, 18-21.

Mr. Volini admits that during the executive session there was a discussion about T&C’s s intent

to refile its application and admits that at no time did the City object to any such refiling. PCB

II, Pet. Lx. 14, p. 14. Prior to even going to the meeting he had already informed the City of his

intent to “refile or file a new application”.

Id.

at 19.

The fact that the Applicant and the decision-maker were collaborating in deciding to

appeal the PCB decision and refile the application is another example of the collusion and pre-

adjudication that occurred in this case. Ifthe City was actually an impartial tribunal, why was it

meeting with the Applicant to discuss the strategy on how to accomplish siting the landfill, and

why would the City Council have been incensed at the County’s actions in merely pursuing its

statutory right to appeal to the PCB, and doing so successfully? Should not the natural reaction,

if it was an unbiased tribunal, to be relieved that the PCB stopped an application which clearly

did not protect the health, safety and welfare?

Mr. Volini also testified that there were several other communications he had with the

Mayor and City Council after the disapproval by the PCB on August 19, 2002 and before the

refihing of the application. Since it is undeniable that the Applicant had already communicated

its intention to refile the application with the City, these communications were obviously

improper. The PCB has found that there is no bright line test as to when it becomes improper to

communicate with the decision maker.

Town & Counüy I,

slip op. at 19-21. Rather, the test

should be that when the siting authority becomes aware that an application is imminent and

knows it will be called upon to be a thbunal rather than just a legislative body, communications

with a party to the forthcoming action should be barred. In this case, the Applicant and City

communicated so many times that they are too numerous to recall.

ii.

The Applicant Acted On Behalf Of The City Attorneys And

Staff In Retaining A Consulting Expert.

The collusion between the Applicant and the City continued after the January

2003

decision of the PCB and before the refihing on March 7, 2003, when the Applicant acted on

behalf of the City in retaining the City’s purportedly impartial consulting expert. Apparently as a

result of the strategy meeting between the City and the Applicant on February 3, 2003, it was

decided that the City should retain a witness who would support the application that the City

could later chaim was an “independent” consultant. Unbeknownst to any of the objectors, the

City did indeed retain an individual recommended by Volini to draft reports upon which the City

Council would rely. This individual (Ronald Yarborough) was first contacted on February 3,

2003, by Mr. Volini on behalfof the City Council (which was the same day Volini met with the

City).

The Applicant’s retention of a consulting expert on behalf of the City is just another

example of the collusion between the Applicant and the City to site this landfill regardless of the

evidence admitted at the hearing.

iii.

The City Of Kankakee Sued The County In An Effort To Keep

The County From Continuing Its Opposition To The City’s

Attempts To Site A Landfill.

While the appeal to PCB on

Town & County I

was being briefed, the City of Kankakee

filed a lawsuit against the County of Kankakee, 2-CH-400, which alleged that the use of certain

funds collected by the County of Kankakee pursuant to 415 ILCS

5122.15(j)

of the Illinois

Environmental Protection Act were being used to “reimburse the general fund of Kankakee

County for expenditures involved in the litigation against the City of Kankakee.” PCB II, Pet.

Ex. 13. The City alleged that “an actual controversy exists in that said funds are currently being

used for reimbursement of legal expenses related to the siting of a landfill by Kankakee County,

as well as in opposition to the siting of a landfill by the City of Kanlcakee.”

Id.

at par 15. The

City sought an injunction prohibiting the County of Kankakee from further expending said sums

for this matter.

Id.

at para. 19.

The Complaint filed by the City of Kankakee in the Circuit Court is evidence that the

City pre-adjudicated the merits of the siting application, which was filed on March 7, 2003. The

City Complaint was filed on November 26, 2002, which was, coincidentally, the very same day

that the County’s initial brief in

Town & Country I

was to be filed with the PCB. The County

was forced to file a motion to dismiss the frivolous complaint of the City of Kankakee at the

same time it was in process of drafting its response briefs in

Town & Country L

Therefore, the

Complaint was not only an improper attempt to infringe upon the efforts of counseh to adequately

respond in the

Town & Country I

appeal, it is also explicit evidence that the City of Kankakee

viewed itself as an advocate in favor of siting the T&C landfill and was pursuing any means it

could to obstruct the County from continuing to object to the City’s siting of the landfill. The

City’s Complaint was dismissed with prejudice.

iv.

The City Filed A Civil Action Against The County Seeking To

Enjoin The County From Defending Its Solid Waste

Management Plan At The City’s Siting Hearing.

The

City’s obvious pre-adjudication of the merits of this application culminated with the

City filing another civil action against the County of Kankakec, 3-CH-66, seeking to enjoin the

County of Kankakee from objecting to T&C’s refiled application. P03 II, Pet. Ex. 12. The

hearing on the T&C II application was scheduled to commence on June 24, 2003. On June 11,

2003, the City ofKankakee filed a Complaint for Injunctive Relief and a Motion for Preliminary

Injunction against the County ofKankakee.

Id.

The Complaint filed by the County ofKankakee asserted that the Kankakee County Solid

Waste Management Plan (the “County Plan”) violated the City of Kankakee’s home rule

authority to site a landfill within its municipal boundaries. The Complaint makes numerous

references to the City’s “authority to site” a landfill.

Id.

atpara. 30, 31, 32, 34, and Prayer

The City of Kankakee petitioned the Court to enjoin the County of Kankakee from “attempting

to interfere with the siting by the City.”

Id.

at Prayer I, page 5. The City of Kankakee stated that

the “Kankakee County Waste Management ordinance does restrict the City’s right to site a

facility within its boundaries.”

Id.

at Points and Authorities, p. 4. This language clearly shows

that the City of Kankakee intended to approve and site the landfill even before any evidence was

admitted at the siting hearing.

In addition, the City of Karikakee, in its Complaint stated that its enforcement of the

County of Kankakee’s Waste Management Plan “would cause the City irreparable harm because

the County Plan “specifically provided for only one landfill.”

Id.

at para. 36, 52. The City of

Kankakee went on to complain that the amendment to the County Plan, providing for only one

landfill site in the County, would ‘irreparably’ harm the City by excluding any other landfill

from being sited within the County.

Id.

at para.

53-56.

The City also asked for a preliminary

injunction preventing the County from enforcing its plan.

Id.

at para. 2. Obviously, the only

way the City could be irreparably harmed by the County Plan is if it had already decided that the

applicationThe shouldCity

ofbeKankakee,approved,in

save

its supportingfor

the CountybriefsPlanin

03-CH-lwhich

called66

explicitlyfor

only

acki~owledgedone

landfill.5

its

pre-determined intent to site the landfill by stating “Kankakee County has no authority ~

prohibit the City of Kankakee from siting a landfill within the City’s territorial boundaries”.

PCB II, Pet. Ex. 12, Points and Authorities, p. 1. (Emphasis added). The injunctive case

explicitly sought an order that “the County be enjoined from attempting to interfere with the

siting by the City.”

Id.

Therefore, not only did the City acknowledge that it was its intent (even

before the hearing commenced) to site the T&C landfill, but it explicitly sought an order

enjoining the Country from “interfering with the siting” barring the County from “enforcing its

Plan.” In other words, the City was actually seeking an order enjoining the County from

participating in a siting hearing which it has an absolute statutory right to do. 415 ILCS

As it turned out, the City of Kankakee ignored the judicial admissions it made in the pleadings concerning

3-CH-166 that Solid Waste Management Plan “restricted the City’s right to site a facility within its

boundaries” because it somehow ultimately found that the County plan was vague or ambiguous as to the

County intention to restrict all landfihling except for the expansion of the existing landfill.

5/39.2(d). Though the complaint filed by the City was rightfully dismissed with prejudice, it is

nonetheless powerful evidence of the undeniable pre-adjudicative intent by the City of

Kankakee.

Though a presumption exists that an administrative official is objective and capable of

judging a particular controversy fairly, the presumption will be overcome when shown by clear

and convincing evidence that the official has an unalterably closed mind in matters critical to the

disposition of the proceeding.

Citizens for a Better Environment v. Illinois Pollution Control

Board,

152 Ill.App.3d 105, 111-112,

504

N.E.2d 166, 171 (1st Dist. 1987), If a local siting

authority is biased against, or for, an application, such necessarily impacts fundamental fairness.

E&E Hauling, Inc. v. Pollution Control Board,

116 1ll.App.3d 586,

596, 451

N.E.2d

554, 564,

(2d Dist. 1983),

aff’d

107 Ill.2d 33, 481 N.E.2d 664 (1985). Landfill siting hearings operate in

an adjudicatory capacity, and bias or prejudice may be shown if a disinterested observer might

conclude that the administrative body had in some measure adjudged the facts as well as the law

of the case in advance of the hearing.

Waste Management ofIllinois v. Pollution Control Board,

175 Ill.App.3d 1023, 1040, 540 N.E.2d 682 (1st Dist. 1988).

Waste Management of Illinois

establishes that there need not be direct testimony from a

City Council member that he prejudged the application but rather, the test is whether a

disinterested observer might conclude such occurred.

Id.

The filing of an injunctive action by

the adjudicatory body against one of the parties, seeking to bar the party from opposing the

application, is the most blatant and bald faced evidence of pre-adjudication of merits that could

possibly be imagined. Obviously, a disinterested observer would conclude that the City of

Kankakee pre-judged the merits of its application and that the proceedings were fundamentally

unfair.

The

City

Attorneys Improperly Represented The City Council While

At The Same Time Representing The City Staff And Advocating In

Favor Of The Application.

Attorney Bohien admitted that throughout the siting process he represented both City

Staff and the City Council.

Waste Management

Sierra Club,

PCB 99-136, 99-139 (Aug.

1999), establishes that it is improper for a siting authority’s attorney to advocate in favor of a

position ofCity Staff, while continuing to represent the decision maker.

Id.

This is necessarily

so; otherwise the agent of the decision maker is advocating a position rather than “donning the

hat” of the judge and impartially determining whether the criteria were met. The fact that the

City Council allowed its attorney to represent the City Staff at the same time that the attorney

was representing the City Council is yet more evidence proving that the City Council pre-judged

the merits ofthis application.

The City Attorney Had Improper

Ex Parte

Communications With

The Hearing Officer.

If a party’s attorney communicates with the local siting hearing officer, outside of the

presence of the other parties, about the substance of an application, such is an improper cx

parte

communication.

Concerned Citizens for a Better Environment v. City Havana,

PCB 94-44,

1994, Illinois Environmental Lexis, 668 at 20-27 (May 19, 1994);

Gallatin v. Fulton County

Board,

PCB

91-256

(June 15, 1992), Slip Op. *g9~If such improper

ex parte

communications

with the hearing officer occurred, the question then becomes whether “as a result of improper cx

parte

communications, the siting authority’s decision making process was irreparably tainted

so as to make the ultimate judgment of the siting authority unfair, either to an innocent party or

to the public interest which the siting authority was obliged to protect.”

Gallatin,

Slip Op. *9,

quoting

E&E Hauling Inc. v. PCB,

116 Ill.App.3d 586,

594, 451

N.E.2d 555, 603 (2nd Dist.

1983),

aff’d.

in part, 107 Ill.2d 33, 481 N.E.2d 664 (1985). To determine if the

cx pane

communications irrevocably taint the decision making process a number of considerations may

be relevant including (1) the gravity of the

ex pane

communications, (2) whether the contacts

may have influenced the ultimate decision, (3) whether the party making the improper contacts

benefited from the ultimate decision, and (4) whether the contents of the communications were

unknown to opposing parties and they, therefore, had no opportunity to respond.

Id.

(quoting

E&EHauling,451

N.E.2d 603).

It is undeniable that improper

cx pane

communications occurred between the City

Attorney Mr. Bohlen (who represented both City staff and the City Council) and the hearing

officer. Mr. Bohien was an active advocate during the hearing process in favor of the

application. Mr. Bohlen has admitted that he appeared at the Section 39.2 hearing on behalf of

the City of Kankakee.

PCB II, Pet. Ex. 14, p. 26; see also T&C II

6/24/03 Tr. Vol. 1-A, 16). He

also personally opposed motions to disqualify a certain City council member and motions to

quash the proceedings (T&C II 6/24/03 Tr. Vol. 1-A, 21-23, 32-35).

Mr. Bohien also questioned witnesses, while obviously advocating in favor of the

application. For example, in regard to the Applicant’s witness on criteria viii, Mr. Bohlen asked

a line of questions which essentially tried to lay out an ambiguity argument against the County

Plan. T&C II, 6/26/03, Vol. 3-C, 90-97. Furthermore, the City ofKankakee filed two causes of

action in the Civil Court attempting to bar the County from enforcing its Solid Waste

Management Plan at the siting hearing. Finally, the City ofKankakee in its decision stated that it

was “supportive of the motion” of the applicant which sought to declare the Solid Waste

Management Plan of the Kankakee County unconstitutional. PCB II, Pet. Ex. 1, p. 4. (Emphasis

added). The City went on to improperly find that it “agree(s) that the attempt of Kankakee

County to deny the City of Kankakee the ability to site a solid waste facility in the City of

Kankakee is an improper infringement of its home rule authority and is inconsistent with the

intent and purpose ofthe Act.”

id.

Therefore, it is absolutely undeniable that the City ofKankakee was an active participant

and advocate in favor of the siting application and in opposition to the County plan (which called

for no new landfills to be erected in Kankakee County other than a possible expansion of the

existing landfill at its present location). The record is also clear that Mr. Boblen substantially

advised City decision makers while advocating in favor of the application. Even a cursory

review ofthe August 18, 2003 meeting clearly establishes that Mr. Bohien advised and addressed

the City Council on no less than 50 occasions on that one evening alone. The record also reflects

that Mr. Bohien represented the City Council on February 3, 2003 in an executive session

meeting with Tom Volini, a meeting to which Mr. Bohlen has refused to provide the minutes,

asserting some sort of privilege which obviously does not exist. PCB II, Pet. Ex. 14, 6-7; sec

also PCB II, Pet. Ex. 19, Answer No. 9.

It is fundamentally unfair for the siting authority’s attorney to advocate a position in

favor ofan application at the same time that he is representing the purportedly impartial decision

maker. See

Sierra Club ci at v. Will County Board, et at

PCB 99-136, 99-1-139 (Aug.

1999);