1. RECEIVEUj,
      1. BEFORE THETHE ILLINOIS POLLUTION
      2. BYRON SANDBERG,
      3. Respondents.
      4. WASTE MANAGEMENT OF ILLINOISINC.,
      5. vs.Petitioner,
      6. Respondents.
      7. MOTION FOR LEAVE TO FILE BRIEF iN EXCESS OF 50 PAGE LIMIT
      8. Now comes the Respondents. Kankakee Regional Landfill. L.L,C. and Town &
      9. Petitioners,
      10. Respondents.
      11. B. Standard Of Review
      12. H. THE CITY COUNCIL HAS JURISDICTION TO CONDUCT THESITING HEARING
      13. C. The Siting Application Was Complete For Jurisdictional Purposes
      14. A. Overview
      15. The Proceedings Fundamentally Unfair
      16. The Proceedings Fundamentally Unfair
      17. D. The City’s Council’s Actions Did Not Demonstrate Prejudgment Or Bias
      18. Public Health, Safety, And Welfare Will Be Protected
      19. L Statement of Facts
      20. Kankakee County’s Is Not
      21. Evidence And Should Be Affirmed.
      22. Improper Infringement And Limitation Upon The Home Rule Powers Of An
      23. Independent Local Government Jurisdiction.
      24. VI. CONCLUSION
      25. GEOR GEMUELLER, P.C.Attorney at Law
      26. 501 State StreetOttawa, IL 61350Phone: (815) 433-4705
RECEIVEUj,
ILLINOIS
POLLUTION CONTROL BOARD
BYRON SANDBERG,
)
~,o~c~Qitl,U*)I8
Petittoner,
RflJJflIñS4
GQff°QbJOM~Ø
vs.
)
PCBO4-33
THE CITY OF KANKAKEE, ILLINOIS
)
(Third
Party
Pollution Control Facility
CITY COUNCIL, TOWN
& COUNTRY
)
Siting
Appeal)
UTILITIES, INC.,
and KANKAKEE
)
REGIONAL LANDFILL,
L.L.C.
Respondents.
)
WASTE
MANAGEMENT OF ILLINOIS)
INC.,
Petitioner,
vs.
)
PCB 04-34
THE
CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution Control Facility
CITY
COUNCIL,
TOWN
&
COUNTRY
)
Siting
Appeal)
UTILITIES,
INC., and
KANKAKEE
)
REGIONAL
LANDFILL,
L.LC.,
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS,
and
EDWARD 0. SMITH, KANKAKEE
COUNTY STATE’S ATTORNEY,
Petitioners,
)
vs.
)
PCB 04-35
THE CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution
Control Facility
CITY COUNCIL, TOWN & COUNTRY
)
Siting
Appeal)
UTILITIES, INC., and KANKAKEE
)
(Consolidated)
REGIONAL LANDFILL, L.L.C.,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on January 9,2004 there caused
to be filed via U.S. Mail with the Illinois
Pollution Control
Board an original
and 9 copies of the following document, a
copy of which is
attached
hereto:
Motion For Leave To File Brief In Exc
s0(50
P
~mit
BY:
o
eyat
a~
**************************************************
*****************************************
PROOF OF SERVICE
STATEOF ILLINOIS
)SS.
COUNTY OF LASALLE
The undersigned, being first duly
sworn, state that
I
served a true and correct copy of the foregoing Notice,
together with a bopy of each document referred
to
therein, upo
he
person(s)
indicated via U.S.
Mailas indicated in
the Service List
on the 9th Day of January, 2004.
SUBSCRIBED and SWORN TO ~
Notary Public
r6~FJc~Ari~L”
1
?~‘~p
FOX
1
NOTARY PUP~.C.
STATE
OF ILLINOIS
MY
ct:)MM~:oN
EXPIRES 1/3/08
SERVICE LIST
Dorothy
M.
Cuni. Clerk
Illinois Pollution Control Board
James
R
Thompson Center, Suite
11-500
100W
Randolph
St.
Chicago,
IL 60601
Donald L Moran
Pedersen
& Houpt
161
North
Clark
St.
Suite
3100
Chicago,
IL
60601
Fax:
(3
12) 26 1-1149
Kenneth A. Leshen
Christopher W
Bohlen
Pat
Power
City of Kankakee Corporate Counsel
385
East Oak
St.
Kankakee.
IL
6090 1-1787
Fax:
(815) 933-3397
Bradley
P. Ilalloran. Hearing Officer
Illinois
Pollution Control
Board
James
R. Thompson Center. Suite
11-500
100
W.
Randolph
St.
Chicago. IL
60601
Fax:
(312) 814-3669
Edward I). Smith, State’s Attorney
Charles F.
Heisten, Esq.
Richard
S.
Porter, Esq.
Hinshaw and Cuibertson
P.O.
Box
1389
Rockfbrd,
IL
Fax: (815)4
61105-1389
90-4901
Elizabeth
Harvey,
Esq.
Swanson,
Martin &
Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago,IL
60611
Fax: (312) 321-0990
Byron Sandberg
109
Raub St.
Donovan,IL
60931
~net
BEFORE
THE
THE ILLINOIS POLLUTION
BYRON SANDBERG,
vs.
Petitioner,
THE CITY OF
KANKAKEE,
ILLINOIS
CITY COUNCIL, TOWN & COUNTRY
UTILITIES, INC., and
KANKAKEE
REGIONAL
LANDFILL, L.L.C.
Respondents.
CONTROL BOARD
-
~
)
)
~JflJL
‘.S
OLLUT~
CONTROL 804ff)
)
PCB 04-33
)
(Third Party
Pollution Control
)
Facility Siting Appeal)
)
)
)
WASTE
MANAGEMENT OF ILLINOIS
INC.,
vs.
Petitioner,
THE CITY OF
KANKAKEE,
ILLINOIS
CITY COUNCIL, TOWN & COUNTRY
UTILITIES,
INC., and
KANKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
)
)
)
)
)
PCB 04-34
)
(Third
Party Pollution Control
)
Facility Siting Appeal)
)
)
)
COUNTY OF
KANKAKEE,
ILLINOIS,
and EDWARD D.
SMITH,
KANKAKEE
COUNTY STATE’S
ATTORNEY,
vs.
THE CITY OF KANKAKEE, ILLINOIS
CITY COUNCIL, TOWN
& COUNTRY
UTILITIES,
INC., and
KANKAKEE
REGIONAL LANDFILL, LLC.,
)
)
)
)
)
)
PCB 04-35
)
(Third
Party
Pollution Control
)
Facility Siting Appeal)
)
(Consolidated)
)
)
MOTION FOR LEAVE TO FILE
BRIEF iN EXCESS OF 50 PAGE
LIMIT
Now comes the Respondents.
Kankakee Regional
Landfill.
L.L,C.
and
Town &
Country
Utilities,
Inc.
(hereinafter “Town
& Country”),
and move for leave
to file a Brief
Petitioners,
Respondents.
in excess of the Board’s 50
page limit.
In support thereof, Respondents
state as follows:
ILLINOIS POLLUTION CONTROL BOARD
BYRON
SANDBERG,
Petitioner,
)
vs.
)
PCB 04-33
THE
CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution Control Facility
H
CITY COUNCIL, TOWN & COUNTRY
)
Siting
Appeal)
UTILITIES,
INC., and KANKAKEE
)
~
REGIONAL LANDFILL,LLC
)
)I
Respondents.
)
WASTE
MANAGEMENT OF ILLINOIS)
INC.,
)
Petitioner,
)
vs.
)
PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution
Control Facility
CITY COUNCIL, TOWN & COUNTRY
)
Siting
Appeal)
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.
)
PCH
04-35
THE CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution Control Facility
CITY COUNCIL, TOWN & COUNTRY
)
Siting Appeal)
UTILITIES, INC., and ICANKAKEE
)
(Consolidated)
REGIONAL LANDFILL, L.L.C.,
Respondents.
)
NOTICE OF FILING
TO:
See
Attached Service List
PLEASE TAKE NOTICE that
on
January 9,2004 there caused
to
be filed via
U.S. Mail with the Illinois
Poliution Control
Board
an
original
and
9 copies of the
following document,
a
copy of which
is
attached hereto:
BrielOf Respondents, Town &
Country Utilities,
Inc. aid Kankakye_Rj~ionaILandfill, L.L.C.
BY:
t1~’~~
~
~tt9l4ey
atTaw
PROOF
OF SERVICE
STATE OF ILLINOIS
)SS.
COUNTY OF LASALLE
The undersigned, being first duly sworn, state that
I
served
a
true
and
correct copy
of the foregoing Notice,
together with
a copy of each
document referred
to therein,
upon
the person(s)
indicated via U.S. Mailas
indicated
in
the Service List
on the
9th Day of
January,
2004.
SUBSCRIBED
and SWORN
TO Before ~
~
otary
&E.
SEAL”
ox
N0TAp~,
~‘.
.~
~,
*~TE
OF
ILLINOIS
MY
U.
~
EXPiRES
1/3/08
RECE,WEO
BEFORE THE
—
C.
104
THE ILLINOIS POLLUTION CONTROL BOARD~E~
~t
FOLLUTD4
cONTROL
BOARI)
BYRON SANDBERG,
)
Petitioner,
)
vs.
)
PCB 04-33
THE CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution
Control
CITY COUNCIL, TOWN & COUNTRY
)
Facility Siting Appeal)
UT1LITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.
)
Respondents.
)
WASTE MANAGEMENT
OF ILLINOIS, INC.,)
)
Petitioner,
)
vs.
)
)
PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS
)
(Third Party Pollution
Control
CITY COUNCIL,
TOWN &
COUNTRY
)
Facility Siting Appeal)
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.
)
)
PCB 04-35
THE
CITY
OF KANKAKEE, ILLINOIS
)
(Third Party
Pollution
Control
CITY COUNCIL, TOWN &
COUNTRY
)
Facility Siting Appeal)
UTILITIES,
INC., and KANKAKEE
)
(Consolidated)
REGIONAL LANDFILL, L.L.C.,
)
Respondents.
)
BRIEF OF
RESPONDENTS, TOWN &
COUNTY UTILiTIES, INC. AND
KANKAKEE
REGIONA LANDFILL, L.L.C
TABLE OF
CONTENTS
Page
L
INTRODUCTION
.
I
A.
Nature Of The Case
2
B.
Standard Of Review
5
H. THE CITY COUNCIL HAS JURISDICTION TO CONDUCT
THE SITING HEARING
8
A.
All Property
Owners Entitled To Service Of Pre-tiling
Notice Were Properly Served
8
B.
Notice To
The Owners Of All Other
Parcels Was
Effected
Regardless Of Who
Signed The Return Receipts
16
C.
The Siting Application Was Complete ForJurisdictional
Purposes
17
D.
The Application For Siting Aprroval
Is Not Subject To The
Two Year Prohibition On
Re-Filing In Section 39.2(m)
OfThe Act
19
III.
THE PROCEEDINGS WERE FUNDAMENTALLY FAIR
26
A.
Overview
26
A.
The Role Played By The City Attorney And The Hearing
Officer
Did Not
Render The Proceedings Fundamentally
Unfair
28
C
.The Hiring Of Dr. Ronald Yarbrough As
The City’s Consultant
And The Receipt And Consideration Of His Reports
Did Not
Render The Proceedings Fundamentally
Unfair
38
D. The City’s
Council’s Actions
Did Not Demonstrate Prejudgment
Or Bias
44
TABLE OF
CONTENTS
-
PAGE
2
Page
E.
Town & Country
Did Not Have Improper Ex Parte
CommunicationsWith The Decision Makers
48
IV.THE CITY COUNCIL’S DECISION ON THE SUBSTANTIVE
SITING CRITERIA WAS NOT AGAINST THE MANIFEST
WEIGHT OF THE
EVIDENCE
49
A.
There Is Ample Evidence To Support The
City
Council’s
Finding That The Facility Is So Designed, Located, And
Proposed To
Be Operated That The Public Health, Safety,
And Welfare Will Be Protected
49
I.
Statement Of Facts
49
2.
The County’s Arguments
Regarding The Evidence On
Criterion
ii Are Unsupported By The Evidence And Show
A Lack Of Understanding Of the Facts
57
a.
The Appliant Did
Not Mischaracterize The Bedrock..
-
57
3.
The Opposition
Witnesses Were Not Credible
69
4.
Siting A Landfill In
A Bedrock Aquifer
Is Not
Inherently
Unsafe
73
5.The City’s
Findings Were Thorough And Well Reasoned....
76
B.
The Manifest Weight of the Evidence Supports the City’s
Findings
Regarding Criterion
viii
80
1. Standard Of Review
80
2. Criterion viii
First Requires That A County’s Solid Waste
Management Plan
Be Consistent With The State’s Statutory
Planning Requirements And Process;
Kankakee County’s
Is Not
83
TABLE OF CONTENTS
-
PAGE 3
Page
3.
The Cifrs
Decision That Town And Country’s
Application
Is Consistent With
A Relevant Local
Waste Planning Is Not Against The Manifest Weight
OfThe Evidence And Should Be
Affirmed
91
4.
The County’s
Position In This
Proceeding, And The
County’s Proffered “Solid Waste Management Plan”
Violates The Illinois Constitution
As It
Is An Improper
Infringement And Limitation Upon The Home Rule Powers
Of An Independent Local Government Jurisdiction
95
IV.
NONE OF THE ISSUES
RAISED
BY BYRON SANDBERG
REQUIRE
REMAND OR REVERSAL
98
VI.
CONCLUSION
99
BEFORE THE
THE ILLINOIS POLLUTION
BYRON SANDBERG,
vs.
Petitioner!
THE
CiTY OF KANKAKEE, ILLINOIS
CITY COUNCIL, TOWN &
COUNTRY
UTILITIES, INC., and
KANKAKEE
REGIONAL LANDFILL, L.L.C.
Respondents.
CONTROL BOARD
)
)
)
PCB 04-33
)
(Third Party
Pollution
Control
)
Facility Siting Appeal)
)
)
)
WASTE MANAGEMENT OF ILLINOIS
INC.,
vs.
Petitioner,
THE CITY OF
KANKAKEE,
ILLINOIS
CITY COUNCIL, TOWN &
COUNTRY
UTILITIES,
INC., and KANKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
)
)
)
)
)
PCB 04-34
)
(Third Party
Pollution
Control
)
Facility Siting Appeal)
)
)
)
COUNTY OF
KANKAKEE, ILLINOIS,
and
EDWARD D. SMITH, KANKAKEE
COUNTY STATE’S ATTORNEY,
vs.
THE CITY OF
KANKAKEE, ILLINOIS
CITY COUNCIL,
TOWN & COUNTRY
UTILITIES,
INC., and KANKAKEE
REGIONAL LANDFILL, L.L.C.,
)
)
)
)
)
PCB 04-35
)
(Third Party
Pollution Control
)
Facility Siting Appeal)
)
(Consolidated)
)
)
BRIEF OF RESPONDENTS, TOWN &
COUNTRY UTILITIES, INC. AND
KANKAKEE REGIONAL
LANDFILL, L.L.C.
Petitioners,
Respondents.
I.
INTRODUCTION
A.
Nature Of The Case
On
March
7.
2003,
the
Respondents,
Town
&
Country,
Inc.,
and
Kankakee
Regional
Landfill,
L.L.C.
(hereinafter “Town
&
Country”)
filed
an
Application
with the
City of
Kankakee
for
local
siting approval
of
a
new regional
pollution
control facility.
That
Application proposed
a
new municipal
solid
waste
landfill
of approximately
400
acres
with
a
waste
disposal
footprint of 236
acres
and an estimated service
life of 30
years.
Town &
Country
Utilities
had previously filed an
Application
for siting approval
for
the same described
real estate
on
March
10,
2002.
On
August
19,
2002,
the
City
Council
of
Kankakee,
Illinois
unanimously
approved
the
first
Application
for
siting
approval.
On review filed by
Kankakee
County
and
Waste
Management of Illinois,
the
Illinois
Pollution
Board
(Board)
reversed
the
City
Council,
holding
in
its
decision
of
January
9,
2003
that
the
City
Council’s
unanimous decision on
siting
criterion
ii
was
against
the
manifest
weight
of the evidence.
Further
review
of the
Board’s decision,
including
the cross-appeals
by
Kankakee County and
Waste
Management of Illinois.
Inc..
is
pending
in
the
Third
District
Appellate
Court.
While
Town & Country has
appealed
the
Board’s
previous
decision,
it
is
also
mindful
of
its
contents.
The
substantial
additional
hydrogeologic investigation included
in the
second
investigation
addresses the
shortcomings
identified
by
this
Board.
The
Board’s
decision,
then,
has
become
the
catalyst
for a
more
thorough, different, and better
application.
As
was
the
case
with
the
first
Application,
the
County
of
Kankakee,
Waste
Management of Illinois,
Inc.,
and
Byron Sandberg once against registered as Objectors to
the instant
siting request.
None
of the other Objectors
from
the
initial
hearing appeared
or
participated
in
the
hearing
on
the
instant
Application.
Kankakee
County’s
Brief
7
suggests,
without
reference
to
any
fact
or citation
to
the record,
that
the
resources
and
will ofother former Objectors have been depleted.
(County Brief, Page 8).
The
Town
&
Country
siting
Application
consisted
of
the
five
large
bound
volumes previously
filed
and three new volumes as well as supplemental drawings, core
samples,
core sample observation
logs,
and
modeling
data,
totaling
over
2300
pages of
new hydrogeological data.
(C-1860).
The
public
hearing on
the Application
was
conducted
over five consecutive
days
commencing
on
June
24,
2003
and
concluding
on
June
28,
2003.
The
hearing
was
presided over by
Robert
Boyd,
a licensed
attorney
who
was
not
otherwise employed
by,
nor connected
with, any of the parties to
the hearing.
(C-l86l).
Public
comments
were
received
through
July
29,
2003.
During
the
public
hearing,
Town &
Country
called
seven
expert
witnesses who
testified
and
were
cross-
examined regarding various
aspects of the Application.
Kankakee County
called
Jeffrey
Schuh,
an
engineer whose
firm
had been
retained
by the
County
to
review
both the Town
&
Country
Application
and
Waste Management’s
Application
for
siting
approval of an
expansion
by the County,
and
Waste Management of Illinois,
Inc.
called
Stuart
Cravens,
a geologist.
The City Council
also received input from
its own consultant,
Ronald
Yarbrough,
a
geologist.
On
August
18,
2003,
the
City
Council
adopted
Findings
of
Fact
and
Conclusions of Law and approved the Application of Town
& Country with
a number of
conditions
by
a
12
to
I
vote with
I
person abstaining.
(C-1890)
I
The
City also
reviewd
I
Retbrenees to the
transcript of
the siting
hearing will be by volume and page number as this
is consistent will, the rcI~rences
used
itt
the
C oonty
Brief.
Other
references to
the
record generated
in
the
hearings
hefore the City ~vil
I
have a “C” designation as set
forth
itt
the Certificate of Record
tiled by the City.
References to
the
PCB hearing and depositions
admitted at that hearing wilt be as such.
The record of the
first proceeding belbre
this
Board in
I’CB
03—31
have
been itteorporated herein by stipulation
by the
parties,
and
the
occasional
citations to
portions of that
first record will be clearly identitied as
such.
3
the previous Board decision.
All
three ofthe Objectors
filed timely Petitions For Review by
this
Board.
Those
Petitions
were
consolidated
and these proceedings ensued.
The parties have agreed to
incorporate
the
entire
record
of
the
previous
case
(PCB
03-31)
into
this
record.
Kankakee
County
filed
a
rambling,
repetitive
109
page
Brief which
contained
scant
summaries of the
facts
and reargued many of the issues decided against the County by
this
Board
in
PCB
03-3 1.
Some of the County’s
arguments are
obviously
advanced
in
bad faith as they
have no arguable
basis in
the law.
These
include,
but are not limited to,
the County’s argument that
receipt of certified mail
by household members other than the
addressee
renders
the
mailing
invalid,
and
that
because
this
Board
reversed thc City’s
approval in the
first Application as being against the
manifest weight ofthe evidence,
that
approval,
itself,
by
the
City
is
in
need
of
evidence
of
prejudgment
and
bias.
The
County’s
Brief
is
also
particularly
difficult
becausc many
of the
Board
decisions
and
Appellate cases
cited
do not
support
the
propositions
for which
they are
cited.
Town &
Country
is
confident
that
the
Board
will
carefully
review the
County’s
legal
authorities
and see them for what
they are.
Lastly, the County’s
Brief is difficult
because
it contains
an unending
series of factual exaggerations and
hyperbole which
are
not justified
by
the
underlying record.
Waste Management of Illinois adopted the Briefof Kankakee County
while many ofthe
issues
raised by the County are the
same or similar as issues
previously
raised
by
them.
The right
and
ability
of the
public
to
participate
is
not
an
issue
in
the
instant appeal.
This
is
the
third
case
within
one
year
before
this
Board
involving
Kankakee
County and the City of Kankakee, unfortunately, as antagonists.
Again, Town &
Country
4
is
confident
that the
Pollution
Control
Board can
set aside the rancor
and
hyperbole and
focus on
the
merits of the
its
position.
The Board
is asked
to
keep
the arguments raised
by
those
antagonists
and
its
rulings
in
those
previous
cases
in
mind
in
considering this
appeal.
A
fair summary of those
previous cases
is that
Kankakee County
has taken the
position
that
it,
alone,
has
the
right
to
site
a
landfill
under
its
sole jurisdiction.
The
Board,
in
reviewing the arguments
of the County in
this
case,
is asked
to
remember
that
Kankakee County has gone on
record in all
three of the cases before the Board
in the last
year as well
as
in
its
three recent
amendments of its
Solid
Waste Management
Plan
with
the
unequivocal
statement
that
the
only
landfill
siting
legally
possible
in
Kankakee
County
is expansion of the existing Waste Management facility due to close
in 2004.
B.
Standard
Of Review
Section
40.1
of the
Act
requires
the Board
to
review the proceedings before the
local
decision maker
to
assure
fundamental
fairness.
In £
&
F
Hauling,
the Appellate
Court
found that
although
citizens
before
a
local
decision maker are not
entitled
to
a
fair
hearing
by
constitutional
guarantees of due
process,
procedures at
the
local
level
must
comport
with
due
process
standards
of
fundamental
fairness.
The
Court
held
that
standards of adjudicative
due
process must
be
applied.
(F
&
F
Hauling,
451
N.E.2d at
564:
see
also
Fairview
Area
Citizens
Task
Force
(FACT)
vs.
Pollution
Control
Board,
144
111 Dec.
659,
555
N.E.
2d
1178
113rd
Dist.
/990,1,).
Due
process
requirements
are
determined by
balancing
the
weight of the individual’s
interest
against society’s
interest
in effective and efficient governmental operation.
Waste
Management of Illinois,
Inc.
vs.
Pollution
Control Board,
1 75 Il1.App. 3d 1023,
530 N.E. 2d 682,
693 (2”” Dist.
1988).
The
manner
in
which
the
hearing
is
conducted,
the
opportunity
to
be
heard,
the existence of
cx
parte contacts,
prejudgment of adjudicative
facts,
and the introduction ofevidence are
important,
but
not
rigid, elements
in assessing
ifindamental fairness.
Hediger
vs.
D &
L
Landfill, Inc.
(PCB 90-1 63,
December
20,
1990).
The above standard of review had been frequently repeated in the decisions of this
Board.
However,
recent
decisions
of
the
Illinois
Appellate
Courts
suggest
that
the
fundamental
fairness
standard
be
viewed
in
the context of the
siting
authority’s role as
both
a
quasi-legislative
and
quasi-adjudicative
body,
and
that
by
reason
thereof
the
standard
should
be
restricted
rather
than
expanded.
For
example,
the
Third
District
Appellate
Court
has
stated
in
Land
&
Lakes
Co.
vs.
Pollution
Control
Board,
309
Ill.App.3d 41,
743 1’/.E.2d 188 (‘3d Dist.
2000,):
“A nonapplicant who participates
in
a local
pollution control facility siting
hearing has no property interest at stake entitling him to the protection
afforded
by the constitutional
guarantee of due
process.
Southwest
Energy
Corp
vs.
Pollution Control Board,
275 IlLApp.3d 84,
211
Jl/.Dec.
401,
655
N.E. 2d 304
(1995).
However, under
Section
401.1
of the
Act
(4/5
ILCLS’
5/40.1
(West
/998),
such
a
party
has
a
statutory
right
to
“fundamental
fairness”
in
the
proceedings before
the
local
siting
authority.
Southwest
Energy Corp, 75 IlLApp.3d 84,
211
IlL Dec.
401,
655
N.E.2d
304.
A
local
siting
authority’s
role
in
the
siting
approval
process
is
both
quasi-
legislative
and
quasi-adjudicative.
See
Southwest
Energy
Corp.
275
IlLApp. 3d 84,
2/1
IlL Dec~401,
655
N.E.
2d 304.
In recognition of this dual
role,
courts
have
interpreted
the
right
to
fundamental
fairness
as
incorporating minimal
standards of procedural
due process, including
the opportunity
to
be
heard, the
right to
cross-examine adverse
witnesses.
and
impartial
rulings on
the evidence.
Daly
vs.
Pollution Control Board,
264
IlLApp.3d 968,
202 Ill. Dec. 4/7,
637 ~V
E. 2d / 153 (1994).”
It
is
obvious
from the
bregoing
therefore
that
fundamental
fairness
is a
standard
derived from
and
interpreted
in context.
As such, fundamental
fairness
violations should
not
be found
based
on
isolated
incidents, inadvertent problems, or harmless error so long
as the “minimal” requirements are satisfied.
6
While
the determination of fundamental fairness
is made
on
a
tie
novo
basis,
the
Board
acts in
an
appellate
capacity regarding the
9
substantive
siting
criteria,
confining
its review to the record made before the local siting
authority.
It
is has
long
been established
that
the decision of the
local
siting authority
in
a
landfill
siting
appeal
should
not
be
overruled unless
it
is
against the manifest
weight of
the evidence.
McLean County
Disposal,
Inc.
vs.
County of McLean,
207 iLApp.3d 477~
566
N.E.
2d
26
(4”
Dist.
1991).
The Pollution
Control
Board,
in
reviewing
the
factual
findings
of the
local
decision
maker,
is
not
to
reweigh
the
evidence
or
make
new
credibility
determinations.
Waste
Management
of Illinois,
Inc.
vs.
Pollution
Control
Board,
160
IlLApp.3d
434,
513
N.E.2d
592
~
Dist.
1987,).
The
determination
of
whether a proposed
facility
is
so designed,
located, and proposed
to
be
operated that
the
public
health,
safety,
and
welfare will
be
protected
is
purely
a
matter of assessing
the
credibility of expert witnesses.
Fairview
Area
Citizens
Task
Force
vs.
Illinois Pollution
(‘on/mI Board,
/98 1/LAp~3d
541,
555 N.E2d 1/78
(3P~~
DisL
1990).
Pile
vs.
D &
L
Landfill,
Inc.,
219
I/LA pp. 3d 897,
579
N. E.2d 1228 (5”
Dist.
199 I).
It
is
not
the
duty
of
the
Board
to
reweigh
the
evidence,
to
judge
the
credibility
of
the
witnesses,
or
to
substitute
its
opinion
for that
of the
local
decision maker.
The
Appellate Court
decision
in
Poirview Area
Citizens
Task Force
can
fairly be
read as mandating that
if there
is
any
evidence to support the
local siting authority’s decision, that decision must stand.
The
fact that
a different decision might
be
reasonable
is
insufficient
for
reversal.
The opposite conclusion must be clear and indisputable.
Wil/owbrook
Motel vs.
Pollution
Control Board,
135 IlLApp.3d 343,
41
N.E. 2”~~
1032
(JSt
Dist.
/985).
7
H.
THE CITY COUNCIL HAS JURISDICTION TO CONDUCT THE
SITING HEARING
A.
All Property Owners Entitled To Service Of Pre-Filing Notice
Were
Properly
Served
The County
argues
that
Town &
Country
failed
to
give
notice
to
all
owners of
Parcel
No.
31-16-23-400-001
(the
Skates
Parcel).
They
base
their
argument
on
the
testimony
of Sheila
Donahoe,
the
Chief County
Assessment
Officer,
that
the
property
index
record card maintained
in her
office for this
Parcel
shows
the address of
all
of the
owners except
Judith
Skates
as 22802
Prophet
Road,
Rock Falls,
Illinois.
The property
index
card which
one
would
first
access
in
the
County’s
computer
data
base,
in
fact,
shows
the
Rock
Falls
address
as
being
the
address
of the
property
owners.
(Board
Hearing, Pages
52,
71).
As
indicated
in
the Affidavit of Service contained in the
Siting
Application
as
well
as
the
testimony of Town
&
Country
President Tom
Volini
in
his
deposition, which
deposition was
admitted as
substantive testimony at the Board
Hearing
(Petitioner’s
Exhibit
23),
Town
&
Country
sent
certified
mail
notice
on
this
Parcel
to
.ludith
Skates at 203
S.
Locust St.,
Onarga.
IL
60955
and
to
the other five record owners.
(as identified on
the property index cards
only).c/o of Judith Skates, at the
samc address.
These notices were
all received
and signed
for
in a timely manner.
The
facts
of
service
regarding
the
Skates
Parcel
are
not
in
dispute,
and
the
arguments
raised
by
Petitioners
are
nothing
more
than
a
refined and
enhanced
version of
the
arguments
previously
rejected
by
this
Board
in
the
appeal
of
tile
first
siting
proceeding
involving
these
same parties.
In
PCB
03-31,
this
Board
specifically
found
that
service
on
Judith
Skates
alone
was
sufficient
to
satisfy
the
statutory
service
requirement,
given
the conflict
between
the various
authentic
tax records of Kankakee
S
County.
(County
of Kankakee
vs.
City of Kankakee,
PCB
03-31,
January
9,
2003,
Slip
Opinion at
16,
17).
The
testimony
of
the
County’s
Chief
Assessment
Officer,
Sheila
Donahoe.
revealed
that
there
are
three distinct
and
different
authentic
tax records
relating
to
the
Skates
Parcel.
The
first of these
is
the property
index
record
card
which
is
generated
when the parcel
number
is
input
into the Assessor’s
shared computer
database,
(Board
Hearing,
Page
61).
The
first
card
which
comes
up
is
the
name
card which
shows
the
names of six
owners,
including
Judith
Skates,
and
shows
the address for
all
of them
as
being
in Rock Falls, Illinois.
The second tax record
is the change of address form for this
Parcel
filed by Judith Skates, also
an authentic tax record of the County.
(Board
Hearing,
Page
73).
This
record, included
in
the attachments
to
Petitioner’s
Exhibit
9
is
entitled
“Name and
Address Change Only.”
It
identifies the Parcel number
as 13-16-23-400-001,
and
indicates
in
the
line
immediately
below
the
Parcel
number,
“Skates,
Judith
and
Bradshaw.”
2
The
third tax record applicable to
this Parcel
is the
real estate
tax
bill sent
out
from
the Treasurer’s
Office, which
bili
is addressed
and sent to
Judith
Skates
only
at
her
Onarga,
Illinois
address.
(Respondents’
Exhibit
#1).
This
tax
bill
is
also
identified
by
Ms.
Donahoe as
an
authentic tax record of the
County.
(Board
Hearing,
Page 78).
In
contradiction
to
Ms.
Donahoe’s
inference
that
the
property
index
card
is
the
master
record.
Tom Volini testified that shortly
before sending out
the required notices of intent
to
file
this
Application,
he
was
told
by
a
Deputy
Assessor
and
two
Clerks
in
the
Assessor’s
Office that
the real estate tax
bill
for the subject parcel,
showing Judith Skates
2.
There
is an
apparent
error on
Page 74, Line
6 of the Transcript of the
Board Hearing of
December 2,
2003.
Reference
at that location
to “Judith
Ann Bradshaw” should,
in fact, have
been
transcribed as
“Judith
and
Bradshaw.”
This
is made
clear
by
the context to
the question which
refers to the change of
address card for this
Parce! and
reference
to
the card,
itself, which clearly
shows the owners
identified as
“Skates, Judith
and Bradshaw.”
9
as the
sole
recipient and
tax payer,
is
the
most up
to
date record available.
He indicated
this was confirmed by a call from the Assessor’s Office
to the Treasurer’s Office and was
personally confirmed
to
him by
the Kankakee County Clerk.
(Volini Deposition,
Pages
66-70).
The foregoing
3
distinct, but
authentic, tax records of the County
were part of the
record
in
the previous
siting proceedings
and
appeal, and
the testimony of Ms.
Donahoe
is
the
only
new twist
by
Petitioners.
They rely
on
her
conclusion
that
the
change of
address
form
submitted
by
Judith
Skates
applied
only
to
her
and
not
to
the
other
five
owners.
(Board Hearing, Page 63).
Accordingly,
Ms.
Donahoe concluded
that
as far
as
she
is
concerned,
the
correct
address
for
the
other
five
owners
of the
Skates
Parcel
remained
in
Rock
Falls, Illinois.
She did,
however,
acknowledge
that
she did
not
know
whether
any of those
other
five
owners
actually
lived
at the
Rock Falls
address.
(Board
Hearing,
Page
72).
She
also
acknowledged
that
the
change of address
form
does
not
show,
on
its
face,
that
it
is
limited
to
only
one
owner,
and
acknowledged
that
the
identifying
number
on
the
form
is
for
the
entire
Parcel.
(Board
I learing.
Page
77).
Moreover,
a closer
look at the document itself suggests that
Ms.
Donahoe’s conclusion is
unreasonable,
and
that
the
document
is
best
understood
as
evidencing
an
intent
on
the
part of Judith Skates to
change the
address and mailing
information
for
all
the owners of
the Parcel.
A
review of the change
of name and
address document,
which
is
one of the
attachments
to
Petitioners’
Exhibit
#9,
shows
that
Judith
Skates
actually
filed
changes
for two different parcels.
The
first is for the parcel
previously discussed,
and the second
is for
an
unrelated
parcel
where
the
owners are identified
as
“Bradshaw,
Sara
Jane
and
Skates,
Judith.”
This
combined
with
the
fact
that
the
identifying
information
for
the
10
change
of
address
form
on
the
subject
Parcel
includes
the
words
“and
Bradshaw”
unequivocally demonstrates
that Judith
Skates
was
intending
to
file
a change of address
for more than just herself
There
is
little
logic
in
Ms.
Donahoe’s explanation,
but
her
potential
bias as an employee of the Petitioner should not be overlooked.
The absurdity of Petitioner’s argument that the owners of the Skates Parcel should
have been served
at the Rock
Falls,
Illinois address is underscored by the fact that
in the
first
siting
proceeding
involving
these
parties,
Patricia vonPerbandt,
a
private
process
server hired by
Town &
Country, testified
that she,
in fact, attempted
personal service on
all
of the
listed
owners at
22802
Prophet
Road,
Rock
FaIls,
Illinois,
and
encountered an
individual there who identified herselfas the daughter ofJudith Skates
and indicated that
none of the
listed
owners
lived
at the
Rock
Falls address,
and that all
matters
relating
to
the Parcel were
being handled by Judith
Skates who lived
in
Onarga,
Illinois.
(PCB 03-
31, Board
Hearing
11/6/02, pages
285-188).
This is consistent with the real estate tax
bill
which
identifies Judith
Skates
at
her
Onarga,
Illinois
address as
the
sole
addressee
and
recipient,
In
an
apparent
attempt
to
confuse
the
issue,
the
County
submitted
the Affidavits
of the owners of the subject Parcel, the Affidavit ofJudith
Skates stating that
she was not
authorized
by
the other owners
to
receive
notices concerning
the
property, and
that
she
did
not
forward
to
those
owners
the
notices which
she received.
The
Affidavits of the
other fiv~owners
in
essence
state
that
they
did
not
authorize
Judith
Skates
to
receive
notices on
their behalf,
that Judith
Skates
did
not
forward any
notices
to
them,
and
that
they might
have objected
to the siting
of
the proposed facility had they been
aware of the
proceedings.
II
By
way of response, Town &
Country
points
out
that
these
so-called
Affidavits
were
submitted
as public
comment
by
the County of Kankakee, and,
as
such, were
not
subject
to
cross-examination.
They,
accordingly,
have
no
more
value than hearsay and,
because
not
subject
to
cross,
it
is
exceedingly
unfair
to
rely
upon
them.
What
is,
however,
striking about the Affidavits themselves is that none ofthe Affiants provides his
or her
address,
if any of the Affiants
had,
in fact, resided in Rock Falls,
Illinois, one
can
be
certain
that
this
fact
would
have
been
included
in
that
person’s
Affidavit.
Accordingly,
the
Affidavits,
themselves,
support
the
testimony
of
the
private
process
server,
Patricia
vonPerbandt,
that none of the
listed
owners were
found or resided
at
the
Rock Falls, Illinois address.
Most importantly,
however,
the Affidavits,
themselves,
are irrelevant in
that they
are
an
improper
attempt
to
go
behind
the
authentic
tax
records.
Owners
entitled
to
notices are, ~such persons or entities
which
appear from
the authentic tax
records of the
county.”
4/5
IIX’S
5/39.2
(h).
The authentic
tax
records
of the
County
provide
two
conflicting
addresses
for the
owners
as
well
as
conflicting
information
as
to
who
the
owners
are.
Based
upon the testimony of Ms.
vonPerbandt.
the
change of address form
filed
for
the
Parcel,
and
the
fact
that
the
Treasurer’s
tax
bill
goes
to
Judith
Skates
in
Onarga,
Illinois.
the address
in
Rock
Falls
is
clearly
an
incorrect and
obsolete address.
Moreover,
Ms.
Donahoc
testified
that
the
property
index
cards
have “mail
and
notice
flags”
which
specify
that the tax bill
and
all notices regarding the property are
to
be
sent
to
Judith
Skates
at the Onarga address where
both the
Skates and
other notices were
sent
and
signed
for..
(Board
Hearing, Page
80-83).
The
tax records,
therefore,
all
uniformly
12
indicate
where
and
to
whom
notices
are
to
be
sent,
and
these
are
dispositive,
the
Affidavits ofthe owners to
the contrary notwithstanding.
Town &
Country
also
points
out
that
unlike
in
the
first
siting proceeding
when
notice was only sent
to Judith Skates, in this
proceeding notice was actually sent to
all
six
of the owners
of the subject Parcel,
albeit
to
the
Onarga,
Illinois
address.
Two
of the
thsee relevant authentic
tax
records,
the change of name and
address
form
and
the
real
estate
tax
bill,
as
well as
the
information
gleaned
from
County
Officers
by
Mr.
Volini,
suggest
that
only
Judith
Skates
was
entitled
to
receive
notice.
The
“mail
and
notice
flags”
in the County’s tax
records
confirm
this.
Town
&
Country has, therefore,
actually
done
more
by
way
of notice
than
is
required
in
the
statute
and
than
is
required
in
the
Board’s precedent in
its decision in
PCB 03-31.
Service of registered mail on only one of
a
number of heirs,
when that
one
person
appears
to
be
the designee for receipt of mail,
has been
approved by both
the
Board and
the Appellate Court with
the holding that,
“It is
true
that
only
one
heir
received
notice,
but only
that
heir
was
listed
by
namc and
address
in
the
tax
records
to
receive
that
tax
statement on
behalf of
‘all
the
heirs.”
Wabash
&
Lawrence
Counties
Tax
Payers
and
Wa/er
Drinkers’ Association
vs.
Pollution
Control
Board,
198 Il/.App.3t~i
38c~554 N.E.2d
1081
(5m
Dist.
I990~.
This
is particularly
true
in
a
case
such as
this
where
(a) the record demonstrated
none of the other
heirs lives at the
address stated
in
the
superceding County
tax
records,
and
(b)
the
“notice
and
mailing
flags”
in
those
records
direct
notice
to
Judith
Skates
in
Onarga.
Additionally,
the
fact
that notice
may not
actually have been received
by one
or more of the property owners
is
irrelevant
in
light
of this
Board’s
recent
holding
in
City
of
Kankakee
vs.
County
of
Kankakee
aml
Waste
I’Janagement qf Illinois,
inc.,
PUB
03-125,
August
7,
2003,
that
13
service of notice is complete upon mailing.
The
County’s
argument
regarding
service on
the owners
of the
Skates
Parcel
is
representative of the tone of its
entire
Brief
In essence,
the
County is
rearguing its
own
position regarding service which
a post
Board
rejected.
The
County
urges
the Board
to
reverse the
City Council
based upon
a fiction,
namely
Town &
Country’s
failure to
send
notice
to
an
address where
all
of the parties knew that
~
of the
owners
lived.
The
other fiction which
the County
urges is
that notice
was not
sent to the five owners other
than
Judith
Skates
although
such notice
was
not
required
in
this
case.
The Affidavit of
Mr.
Volini and
his
testimony are clear
that notice
was
sent to
~ch
of them
albeit “do oF’
Judith
Skates.
This
point
is
actually
admitted
in
the
County
Brief (County
Brief,
Pagel 1).
This
fact distinguishes the instant case from the
City of
Kankakee
vs.
County of
Kanka/cee
case where no notice was ever addressed or sent to
Mrs. Keller.
3
Is the County
arguing
that
certified mail
notice
to
the
other
five
property owners
would
have
been
more
effective
if the
words “do
Judith
Skates”
had
been
left off the
envelope
containing the
notices addressed and
sent
to
them?
Alternatively,
the
County
suggests
that
the
Board
read
into
the
statute
regarding
service the
requirement
that
an
applicant actually locate
each
owner before attempting
service.
The
County
argues
that
Town
&
Country
was
not
diligent
in
trying
to
ascertain
the
true
address
of all
of the
owners other than Judith Skates.
However,
the statute
does not
require an
applicant to
go
beyond
the
tax
records.
Aside from
the fact that
in
this
case
two
of the three relevant
authentic tax
records
did
not
even
identify the
five individuals
other
than
Mrs.
Skates
as
owners:
Town
&
Country
identified
all
of the
owners;
Town
&
Country
physically
3
here
was
also no
issue
in
the Waste Management
ease about the
theE that
Brenda Keller was
a
listed owner on all
lhc
authentic
lax records o(the County, and
that there
was no
contliel
in such records.
14
determined that none ofthem resided at the Rock Falls address;
Town &
Country
learned
from the authentic tax
records
that
all
notices to
these owners
were being
sent
to
Judith
Skates in
Onarga,
Illinois;
and
Town &
Country then sent
certified mail
notice to
all
the
owners at the Onarga,
Illinois address.
For the Board to
require Town &
Country, or any
other applicant,
to
go
behind
tax
records
to
resolve
discrepancies
between
conflicting
records,
to
find
missing owners or to
locate
the
actual
whereabouts of those
owners
who
have deferred their right to
receive
legal
notices
regarding the property
to
other owners
imposes an impossible burden.
Under the
County’s
reasoning,
certified mail
notice
sent
to
the
five
owners
other
than
Skates
at
the
Rock
Falls
address
would
have
satisfied
the
statutory
notice
requirement even
though
the Applicant
knew none of the owners
resided at
that address.
Such an
approach
is consistent
with this Board’s holding
in
City ofKankakee
vs.
County
of
Kankakee regarding when certified mail
notice
is complete,
and the Board’s ruling
in
that
regard
promises
to
ease
in
the
future
what
had
become
a draconian,
and
sometimes
absurd, burden
on
applicants regarding service ofnotice.
However,
(‘it;’ of Kankakee
vs.
County of
Kanka/cee
had
not
yet been decided
at
the
time
that
Town
&
Country
served
pre-filing
notice
in this
case, and
sending
all
ofthe notices to
alt
of the owners do
Judith
Skates
at
her
known
Onarga
address
clearly
seemed
like
the
best
way,
short
of hiring
detectives
to
search
out
the addresses of the
other
five
owners,
to
insure
that
all
of the
owners got actual
notice ofthe
filing.
The
public comment statements ofall
the owners to
the contrary notwithstanding.
Judith
Skates
was
pursuant
to
the
tax records
the
apparent
agent
for all
the
owners.
She
was the
only
one
listed
to
receive the tax
bill,
and
the Applicant
was entitled
to
rely
on
15
that
authentic
tax record.
Accordingly,
testimony
of Sheila
Donahoe
that
there
is
no
conflict
among
the various
authentic
tax records
of the
County
is
contradicted
by
the
content of
those
records
themselves
as
well
as
the
testimony
of
Mr.
Volini,
and
the
records
remain
as
inconsistent
as
they
were
at
the
time
the
Board
decided
this
same
service question in January of 2003.
This
designation of Judith Skates
on the tax
records
as the
only person
to
receive the
real estate
tax bills
and all
other
legal
notices regarding
the
property
further
distinguishes
these
facts
from
the
facts
relating
to
Waste
Management’s
failure
to serve
Mrs.
Keller
in
City of Kankakee
vs.
County of Kankakee,
which are argued by the County
as being controlling.
B.
Notice To The Owners Of
All
Other
Parcels Was
Effected Rei~ardless
Of Who Signed The
Return Receipts
The County
devotes
almost
4
pages
of its
109
page
Brief
(actually
115
pages
when one considers
Appendix
B
which
is
substantive
argument)
to an
argument
made
in
bad
faith and
in complete disregard of existing
precedent; namely, that
return
receipts
for
certified or
registered
mail
signed
by
an
individual
other
than
addressee
renders
notice
ineffective.
The
County
justifies
the
argument
by
stating
that
it
is
relevant
if
the
Appellate
Court
overrules
the
Board
in
City
of
Kankakee
vs.
Waste
Management
cf
Illinois,
Inc.
This
identical
argument
was
considered
by
the
Board
and
dismissed
in
(‘ouifly
of Kan/cakee
vs.
City
of Kankakee,
ci
a?,
J’CB
03-3 /
(January
9,
2003,
Slip
Opinion
at
pages
/7,
I8~.
The
Board
at
that
time
declined
the
County’s
request
to
abandon
the
well
established
precedent
set
in
DiMaggio
vs.
Solid
Waste
Agency
of
Northern Cook County
PCB 89-138,
(Slip Opinion at
10,
/990)
and
City of Columbia
vs.
County of St.
Claire
and
Browning
—Ferris
Industries of Illinois,
Inc.,
PCB 85-177,
(Slip
Opinion at
13-14,
1986,),
that
someone other than the addressee may
sign for and
accept
16
the notices required
in
Section
39.2(b) of the
Act.
The
County
acknowledges this
point
in
a
footnote
in
its
Brief,
but
argues
that
if
County of Kankakee
vs.
City
of Kankakee,
PCB 03-3,
is overturned by
the Appellate
Court,
then
Ogle
County Board
vs.
PCB,
272
Ill.App.3d
/84,
649
N.E.2d
545
requires
that
the
actual
addressees
must
sign
for
the
notice.
This
is
simply not true or correct as the
Ogle
County Board
case dealt with
the
timing of the sending
and
receipt of notices and
has never
been
construed as overruling
DiMaggio
or
City ofColumbia.
C.
The Siting Application Was Complete For Jurisdictional Purposes
In
an
argument
better
related
to
whether
the
City’s
decision
in
criterion
ii
was
against the manifest
weight
of the evidence,
the
County
argues
that
Town
&
Country’s
failure
to
include
in the Application additional
sensitivity
runs of its groundwater impact
model
rendered
the
Application
incomplete
and
therefore
deprived
the
City Council
of
jurisdiction.
The cases cited by
the County in
support of its
argument are all
irrelevant
in
that
they
deal
with
fttilurc
to
make flj~documents
available
to
the
public
rather than
with
the
issue
of what
documents are required
to
be
filed
in
the
first
instance.
Here
the
County
argues that
Town &
Country
failed
to
file
required information.
Neither Section
39.2
of the
Act,
nor the
City
Siting
Ordinance
specify
what,
if anything,
must
be
filed
regarding
groundwater
modeling,
so
the
County’s
argument
has
no
basis
in
statutory
requirements.
Instead,
the
County
bases
its
argument
on
the
testimony
of
its
only
witness,
Jeffrey
Schuh,
who
apparently found the
8
volume,
4,000
page
Application of
Town &
Country
insufficient
to
concur
with
its
conclusion.
The
City
Council
in
its
Findings of Fact noted
that
Mr.
Schuh
“did
not
testify that
the facility was
not
protective
17
of
the
public
health,
safety,
and
welfare,
but
only
that
he
felt
there
was
insufficient
information to
conclude that the
issue of public
safety was proven.”
(C-I 869).
Regardless of whether
they
are
required,
Mr.
Schuh’s
testimony
that
Town
&
Country
failed
to
include
multiple
sensitivity
analyses
in
the
Application
is
simply
mistaken.
An
original
baseline
model
run
of the
groundwater
impact
evaluation
was
submitted
with
the
March
,
2002
Application.
(Appendix.
P-2
of
2002
Siting
Application).
A new and
different
baseline
model
run was
submitted
with
the
March,
2003
instant
siting
Application.
(Appendix
P-2
of
2003
Siting
Application).
A
sensitivity
run
done
to
evaluate
the
effect
of increasing
the
modeled
thickness
of the
Uppermost
Aquifer
from
10
feet
to
50
feet
is
included
in
Appendix
P-5
of the current
siting Application.
An additional
sensitivity run done to
evaluate the effect of the addition
of
a
geo-composite
liner
to
the
liner
system
on
the
baseline
model
is
contained
in
Appendix
6
of the current
siting
Application.
Accordingly,
the
materials
filed
by
the
Applicant prior to the hearing contained four iterations of the groundwater
model.
Mr.
Schuh’s blatantly
erroneous testimony
is not surprising and
is
consistent with
other problems
in
his
testimony.
For example,
the
City Council
was concerned
that
Mr.
Schuh
had no knowledge of the findings of two employees
he supervised
in review of the
adjacent Waste Management Application for Kankakee County, and
that this
undermined
his
credibility.
(C-1871).
Mr.
Schuh’s
forgetfulness
as
to
what
his
subordinates
approved on
behalfof the County
in the Waste
Management siting Application
is perhaps
explained
by
the
fact
that
no
sensitivity
analysis,
whatsoever,
were
contained
in
Waste
Management’s
Application.
(C-
1895).
18
D.
The
Application For Siting Aprroval
Is Not Subject To The Two Year
Prohibition
On
Re-Filing In
Section 39.2(m) Of The Act
415
ILCS
5/39.2(m)
states
in
pertinent
part
that,
“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
criterion
(i)
through
(ix) of Subsection (a) of this
Section within the preceding
two years.”
Town &
Country
previously
filed
an
Application
for
local
siting
approval
which
received
unanimous
approval from the
City
Council ofthe
City of Kankakee on August
19,
2002.
This Board
reversed
the
City
Council’s
decision,
holding
that
the
City
Council’s
finding
that
the
facility
is so designed, located, and proposed to
be
operated that the public
health, safety,
and
welfare will
be
protected
was against the manifest
weight of the evidence.
(County
of
Kankakee
vs.
City
of
Kankakee,
ci
at,
PCB
03-31,
,January
9,
2O03~.
Town
&
Country’s
appeal
of that
decision
and
the other
parties’
cross-appeals
are
still
pending
before
the
Third
District
Appellate
Court
(Case
No.
3-03-0025).
Meanwhile, Town
&
Country
has
had
an
opportunity
to
review
the
Board’s
decision
in
the
first
case
and
correct
the perceived deficiencies.
Town
&
Country
initially
argues
that
the
previous
Application
was
not
“disapproved”
within
the
meaning
of that
term
in
Section
39.2(m)
of the
Act.
This
conclusion
is
shared
by
the
City
Council
which
found
in
its
decision
“that
the
prior
Application
was
not,
in
fact, disapproved by the
local siting authority.”
( C-1863).
There
are
no
reported cases
which
address the question of whether
reversal
by
the
Pollution
Control
Board
is
legally equivalent
to
“disapproval”
as
that
term
is
used in
the
Act,
so
this
is
a
question
of first
impression.
The
concepts
of approval
and
disapproval
are
19
generally applied to
the
local
siting authority’s
decision-making process.
On the
other
hand,
these terms are not generally used to describe the Board’s review process.
Instead,
the Board’s review
of the
local
decision on
the
substantive
siting criteria
results
in that
decision being “affirmed” or “reversed.”
The mere choice of the
word “disapproved” by
the legislature
in this Section implies a legislative
intent to apply the two-year prohibition
on re-tiling only after local disapproval.
The
foregoing inference
of legislative
intent
is
supported
by
an
obvious
public
policy
consideration,
namely
that
a
local
municipality
should
be
protected
from
unwelcome
re-filings
which
can
potentially
strain
its
resources.
Such
a
public
pOlicy
consideration
would
obviously
not
be
applicable
to
a
case
where
there
is
initial
local
approval
which
was
reversed
by
the
Pollution
Control
Board
due
to
some
error
by
the
local siting authority.
Some
guidance
is
found
in
the Court’s
decision
in
Turleck
v.
Pollution Control
Board
274
JlLAppJd
244,
653
N.E.2d
1288
(P’
Dist
/995).
That
case
involved
a
second
application
ibr
siting
approval
filed
after
local
approval of the
first
application
was
reversed
by
this
Board
on
fundamental
fairness
grounds.
Therefore,
the
case
is
clearly outside the
language of Section 39.2(m).
Nonetheless,
in dicta the
Court pointed
out that the first
application “was approved,
not disapproved by
Summit.
The prohibition
upon
which
Petitioners
rely
relates
to
subsequent
applications
following
a
disapproved
application.”
(210 IlL Dec.
at
829,).
In
addition,
the
pending
Application
is
not
“substantially
the
same”
as
the
previous
AppLication.
The
Appellate
Court
has
held that
merely
because
an
application
proposes
the
same
facility
at
the
same
location
as
previously,
it
is
not
necessarily
20
“substantially
the same.”
Instead,
the trier of fact needs to consider the
actual differences
between
the
contents
of the
two
applications.
Laidlaw
Waste
Systems
vs.
Pollution
Control Board,
230 Ill.App.3d /32,
595
1V.E.2d 600
(51h
01st.
/992,).
On remand from
the Appellate Court’s
decision in
Laidlaw,
the Pollution Control
Board
further remanded to
the
siting municipality,
the Village
of Roxanna, for a factual
determination of whether the application filed within
two years of Roxanna’s
disapproval
of an earlier application was “substantially the same” as the earlier application.
The
PCB
then reviewed the Village’s findings
that
the
two
applications were
not
substantially
the
same on
six of the nine substantive siting criteria.
The PCB found that there do not need
to
he
differences
in
all
of the criteria
in order
for the applications
to
not
be
substantially
the
same.
The
Board
actually
suggested
that
differences
in
the
proposed
service
area
alone
would
be
sufficient
to
render
the
two
applications
not
substantially
the
same.
(IVorthen
v.
Village of Roxanna and Lciidlaw
Waste
Systems,
PCB
90-13 2,
September
9,
1993).
Town &
Country
would note
also
that the Appellate
Court
in
Turlek
suggested
in
dicta
that merely changing the daily intake volume at a proposed facility might
be
enough
to
render
two
applications
not
substantially
the
same:
“There
is
additionaL
doubt as
to
whether the two
applications are “substantially similar”
since
WSREC’s
first
application
proposed a
facility capable ofdisposing
1,000
tons of waste
per day while
its
subsequent
proposal
envisioned an
1800 ton per
day. facility.”
(653
N.E.
2d at
1291).
l’he standard of review for the Board on
this
issue
is to
determine whether or not
the City’s
decision that
the first and
second
Application
are
not
substantially the same
is
against the manifest weight of the evidence.
Worthen
v.
Village oJ’Roxanna and Laidlaw
21
Waste
Systems
(PCB 90-13 7,
September
9,
1993,).
The
City
Council
made
specific
factual
findings
regarding
the
differences
between the two siting Applications.
These are as follows:
“(a)
Specifically,
the service area described by the Applicant is
substantially smaller in
the current Applicationthan in the prior
Application.
(b) The current Application contains substantial,
additional hydro-geological information including three additional
volumes not previously included
in the
prior Application.
(c)
The
current Application further proposes alternate designs not included
in the prior Application
including a geo-composite liner, a double
60 ml. liner ofthe sumps and
the v-notches, incorporation ofthe
updated Flood
Plain Map, new studies regarding endangered species,
biology, fish, and
muscles and mammology and archaeological
investigations, substantial
amounts ofgroundwater
impact monitoring
using a two-dimensional model and substantial
additional groundwater
monitoring data.”
(C-1863)
Applicant’s Exhibit
#16
from
the
local
siting
hearing
graphically
illustrates the
differences between the two Applications as to
hydrogeologic
data, alone.
A copy ofthat
Exhibit
is
appended to this Brief for the Board’s convenience and to
facilitate comparison
of the Applications.
The
City
Council’s
specific
findings
regarding
the
differences
between
the
two
Applications
are,
in
fact,
supported
by
the record.
Devin
Moose,
the
Applicant’s chief
engineer,
testified
that
there
is
a substantial difference
in the degree and thoroughness of
the hydrogeologic
investigation
between the
first
and
the second
Application.
(Hrg.
Tr.
VoLume
3
B,
Page
28).
These
differences
are
graphically
summarized
in
Applicant’s
Exhibit
#16.
In
addition,
Mr.
Moose testified
regarding engineering
changes
including
the
addition of double
60
ml.
liners
in
all
sumps
and
v-notches.
(Hrg. Ti.
Volume
3B,
Page 32).
Dry
hydrants were
added at the
storm
detention basins.
(Hrg.
Tr.
Volume 3D,
Page 34).
Additionally,
as pointed out
previously,
the
reEled
Application
contained four
22
iterations ofthe groundwater model
whereas the original Application contained
only one.
Additionally,
the
two
Applications
are
substantially
different with
respect
to
the
proofs
regarding their consistency with
the Kankakee County
Solid
Waste Management
Plan.
This
is
so
because
of
Kankakee
County
Board
Resolution
03-02-11-725
significantly
amending
County
Solid
Waste
Management
Plan
on
February
11,
2003.
Mr.
Moose testified
at
length
describing
the Application’s
consistency
with
this
most
recent amendment.
(I-hg. Ti. Volume 3C, Pages 46-97)
It
is
noteworthy
that
the
Applications
are
substantially
different
in
the
areas
identified
by
the
Pollution
Control
Board
as being
of primary
concern
in
its
decision
reversing the previous
local
siting
approval.
Additional
hydrogeologic
investigation was
perfonried
to
address the
factual deficiencies
cited
by
this
Board
in
its
January
9,
2003
decision.
Town
&
Country
argued
to
the City
Council
and
continues
to
argue
to
this
Board
that the second
Application with
its
new and
additional
hydrogeological evidence
addresses
every
factual deficiency
cited
by
the
Board
in
its
previous
reversal.
To
the
extent
that
the Applications
are therefore
obviously and
signiiieantly dii erent
in
the area
of
previous
concern
to
this
Board,
they
cannot
conceivably
be
thought
of
as
being
“substantially the same” within the meaning of that term in Section 39.2(m) of the
Act.
The degree
of the
differences
on
points
of previous
concern
to
this
Board
are
illustrative.
For example,
the
Board was
previously concerned
that
only
one deep
boring
had
been
conducted
in
the
Bedrock
in
the
initial
site
investigation.
The
second
Application
presents
the
results
of twenty-one
continuously
logged
soil
borings
that
penetrate ten
feet or more
into the
Bedrock.
In addition, Applicant’s Exhibit #16
shows a
170
increase
in the number ofsoil
borings
within or near the waste
disposal
boundary.
23
The second
Application contains a five-fold increase
in
the amount of rock
cored
during
the drilling.
To
ascertain whether
the Bedrock at the
site functioned as an
aquifer or an
aquitard. Town
&
Country
increased the original
10 field permeability tests conducted
in
the
Bedrock
to
a
total
of
78
such
tests.
Ten
of these
were
conducted
in
competent
Bedrock whereas none had originally been conducted in this
unit.
Petitioners
do not
challenge the accuracy of the
City Council’s specific
findings
regarding
the
differences
between
the
two
Applications.
The
facts
regarding
the
differences,
and
the
facts
regarding
the
similarities
between
the
two
Applications
are
really
not
in
dispute.
Petitioners,
instead,
argue
that
the
number
of
the
differences
between the
two
Applications
are
so
small
in
light
of the number of similarities that
the
Applications
shouLd
be
considered substantially
similar
as
a
matter
of law.
However,
they
provide
no
legal
support
for
this
contention,
nor
do
they
propose
an
objective
standard by which one
canjudge when the number oidifferences
is sufficient and
when it
is not.
If there is
any
factual evidence
to support the local
siting authority’s decision, that
decision
must
stand.
Fafrview
A rca
(‘itizens
Task
Force
vs.
Illinois
Pollution
Control
Board.
/98
111.4pp. 3d
541,
555
N.E. 2d
11
78
(3’~fist.
/990,).
The fact that
a
di lierent
decision might
be
reasonable
is
insufficient
for reversal.
The
opposite conclusion must
be
clear
and
indisputable.
Willowbrook
Motel
vs.
Pollution
Control
Board~ 135
J/lApp.3d 343,
4/
N.E.2d /032 (1” fist.
/98S~.
With this judicially determined
standard
in
mind
and
the
Petitioners
unable
to
ahiculate
a
reason
as
to
why
the
undisputed
differences
between
the
Application
are
insufficient,
this
Board
must
find
that
the
two
Applications are not
substantially the
same.
Consistent
with
the
misleading
statements
and
half
truths
which
permeate
the
24
County’s
Brief,
the County
erroneously
misstates
the
statutory
requirement
by
arguing
that
the
evidence
at
the
siting
hearing
showed
that
the
two
Applications
were
“substantially
similar”
rather than
substantially
the
same.
(County
Brief;
Page
2).
In
support
of
its
argument
regarding
the
evidence,
the
County
cites
eleven
specific
similarities
between
the
two
Applications.
Actually,
there
are
thousands,
but
those
similarities,
regardless
of their number,
are of no consequence when one considers the
differences.
The County Brief
summarizes
those
differences in exactly one
sentence, “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.”
(County
Brief,
Page 4).
This
characterization of
the
three full
volumes of additional
data
filed
by
the Applicant
as
well as
the quantum
increase in
the investigation of the Bedrock Till Interface is so misleading as to
be
simply
untrue.
Interestingly,
the County
dismisses
the differences
in
the
service area
as having
no
positive
impact
on
the operation of the
landflhl
and
therefore
being irrelevant
to
the
reasons why the
Board disapproved
the
first Application.
Aside
from the fact previously
discussed
that
the
term
disapproval
is
inappropriate
to
describe
the
Board’s
action
in
reversing the City Council, this argument suggests some recognition that differences in
the second
Application directly
related
to the reasons for the
Board’s action ofJanuary
9.
2003
would be
inherently significant, and by implication, substantial.
25
HI.
THE
PROCEEDINGS WERE
FUNDAMENTALLY FAIR
A.
Overview
The County’s
entire
fundamental
fairness
argument
is
summarized
in
a
4
page
overview contained at the begirming
of the 28
page
argument.
The
County’s
argument
dissects
the relationship
between Town &
Country
and
the
City of Kankakee
as
well as
the City’s
decision-making process in
excruciating
detail.
In fact,
in
such
detail
that
the
big
picture
is
often
lost.
The
County
alleges
that
the
conduct
of the
City
with
the
Applicant and
the conduct of the
City
in
deciding
this
case cumulatively
show
a
pattern
of
bias
and
prejudgment.
To
reach
this
conclusion,
the
County
makes
many
sub-
arguments which
have all been
rejected by this
Board
or the Appellate Courts
in the
past.
For
example,
the
County
cites
to
the
pre-filing
discussions
on
administrative
and
unrelated matters
between the Applicant
and
the
City.
The
County
cites to
the fact that
the City’s consultant and
the Applicant
had a remote
and
isolated
business contact
many
years
prior
to
the Application.
The County
cites to
the
fact
that
the
Hearing
Officer
has
assistance
from
other
City
staff
in
drafting
proposed
Findings
Of
Fact
for the City
Council.
The County
cites to the fact that the City received and considered a report
from
its consultant
after the public comment period was closed.
All of these arguments have
been previously
been
rejected
as evidence of bias
or
prejudgment.
The
County,
however,
urges that
these various acts,
while
not
individually
evidence of prejudgment,
cumulatively show
prior
bias
and
prejudgment
by
the
City.
In
support, the County cites
American Bottom Conservancy
vs.
Village of
Fairmont,
PCB
00-200 (October
19,
2000,).
Few of the cases
cited
in thc County’s
Brief actually support
the proposition for which
they are
cited,
and
ABC’
is
no
exception.
ABC
dealt
primarily
26
with fundamental fairness issues involving public
access and participation, and this
Board
ultimately found that
failure to
make the Application and
hearing transcripts available to
the
public
were
fundamentally
unfair.
ABC
is,
however,
of significance
in
this
case
because
the
Board,
in
ABC,
rejected
Petitioner’s
claim
that
the
fact
that
the
hearing
officer and city attorney
were brothers-in-law who shared
office space created some bias
or conflict of interest on the part of the hearing officer.
(PCB 00-2000, October
19,
2000,
Slip Opinion at Page
13).
Such well known precedent notwithstanding, the County urges
this
Board
to
infer
from the fact that
the hearing officer’s law
firm had interviewed, but
not
hired, the
attorney when he
first came out of law school that there
is some grand
conspiracy.
The County’s
argument
consists
entirely of smoke
and
mirrors.
They
want
the
Board
to
infer that
the
City Attorney hid
or destroyed damaging documents,
but
there is
not
a
scintilla
of
evidence
to
refute
the
City
Attorney’s
claim
that
a
number
of
the
documents which
the
County
sought
were
lost
when there
was a
wide
spread
computer
crash
in
his
law
office.
What
is
missing
from
the
County’s
argument
is
any hard
or real
evidence
of prejudgment
or
bias.
There are
no
statements
in
the record
by
any
of the
decision makers
evidencing or even
suggesting
bias.
There
is
evidence that
Tom
Volini
frequently
talked
to
the
Mayor
before
the
Application
was
filed,
mainly
about
an
industrial
park.
(Volini
Deposition,
Pages
11,
19).
There
is
evidence
that
the
City’s
consultant
geologist
talked
to
the
Applicant’s
geologist,
hut
only
to
obtain
a
report
authored by
a
witness
hostile
to
the
Applicant.
(Yarbrough Deposition,
Pages
24,
25).
There
is evidence that the City Attorney made some
changes and additions
to
the Ilearing
Officer’s
proposed
Findings
of
Fact,
but
the
Hearing
Officer
reviewed
and
approved
27
them.
(Boyd Deposition, Page 20).
What all ofthese individuals
have in common
is that
none of them
are decision makers.
What
is
missing
in
this
record
is
that
any of these
individuals had
inappropriate contacts
with the decision makers.
There is
nothing
in this
record
to
overcome
the
presumption
that
the
City
Council,
the
decision
makers,
performed their duty diligently and
without bias.
The County’s Statement of Facts in
support of its fundamental fairness
arguments
is
so selective and
biased
as
to
border on
gross misrepresentation.
Rather than restating
the
facts
applicable
to
fundamental
fairness
comprehensively,
Town
&
Country
will
incorporate appropriate
facts with relevant citations as to each of the
County’s arguments.
B.
The
Role Played By
The
City
Attorney And The
Hearing Officer
Did Not Render
The Proceedings Fundamentally Unfair
The
County
alleges
in
fundamental
fairness
arguments
2d
and
2e
that
the City
Attorney and
the
City.
itsell~respectively,
had
improper ex
parte communications
with
the Hearing
Officer.
(County
Brief,
Pages 90,
92).
The
two
arguments appear to
be the
same as they
both
deal
with
communications
between Chris
Bohlen,
the
City Attorney.
and
Robert
Boyd,
the
Hearing
Officer.
Factually,
the
arguments
are
premised
on
the
assertion,
unsupported
anywhere
in
the
record,
that
the
City
Attorney
acted
both
on
behalf of the
City Council
and
the
City
staff.
While
it
is
true
that
Mr.
Bohien testified
that as the City Attorney he generally
represented and
gave advice to all
of its employees,
the Mayor, and
the Aldermen,
Mr.
Bohien was
careful
to point out that
in
this proceeding
he
never advised
the
City Council, and he
provided
legal
assistance only
to
the City staff
(Bd.
Hrg.
Pages
133,
135,
136).
The
first
factual foundation of the
County’s argument
is
therefore lacking.
28
The
County
argues
also
that
Mr.
Bohien
“advocated”
on
behalf
of
Town
&
Country.
This
is
based
primarily upon
the fact that
he
asked questions
on
behalf of the
City staff during the
siting
hearing.
The fact that
the
County
didn’t
like
the tone
of the
questions
hardly means
that
the City Attorney was
advocating.
In fact, Mr.
Bohlen,
by
his
own
previous testimony,
is personally opposed to the Town & Country project.
(PCB
03-31,
Bd.
Tr.
11-6-02,
Page
355).
The
County
adds
that
Mr.
Bohlen
“substantially
advised City decision makers
while advocating
in
favor of the Application,” noting
that
“even
a
cursory
review
of
the
August
18,
2003
meeting
clearly
establishes
that
Mr.
Bohlen
advised
and addressed the
City
Council
on no
less
than
50
occasions
on
that one
evening alone.”
(County Briefat Page 92).
A careful,
rather than cursory,
reading of the
Council
Minutes
contained at
Pages C-1891
through
C-1939
of the record reveals
that
while
Mr.
Bohlen
spoke on
more than
50
occasions that evening, he was merely
the staff
member leading
the City Council through
the decision making process.
As
such, he acted
like
a
Master of Ceremonies
explaining
the
procedure,
answering
a
few questions,
and
moving
from
point
to
point.
He
offered
no
opinions,
nor did
he
tell
the Council
how to
vote.
It
is
noteworthy that
in
the packet
presented to
the
City
Council
that
evening,
Mr.
Bohlen included not only
Mr.
Boyd’s
findings,
but also the proposed findings
from
all
of
the parties.
(Bohien
Deposition,
Page 34).
Additionally,
the
County
relies on
Mr.
Bohlen’s
assistance
in
the
preparation of
the
Hearing
Officer’s
findings
as
evidence
that
he
advocated
for the
Application.
The
County
Brief alleges that:
~‘TheCity Attorney actually drafted,
in large part, the Findings
And
Conclusions Of Law for the Hearing Officer.
Obviously
there could never be
a more severe or prejudicial contact than
drafting the
very findings of the Hearing Officer.”
(County
29
Brief,
Page 94).
This statement in the County
Brief goes beyond
fair argument justified by the
facts.
It
is
simply untrue.
Chris
Bohien, the City
Attorney, testified that
at the request ofMr.
Boyd
he
provided
him
a
copy
with
the City’s
Findings
on
the
2002
Application
to
use
as a
“template.”
(Bohien
Deposition,
Page
24).
These
were
e-mailed
to
Mr.
Boyd
who
subsequently
made appropriate
changes
based
on the
2003
testimony and
e-mailed them
back
to
Mr.
Bohlen.
(Bohlen
Deposition,
Page
19).
Bohlen
then
incorporated
the
references to Dr.
Yarbrough’s reports and the one
special
condition for grouting
based on
his
reports,
and
returned the document to
Mr.
Boyd.
Mr.
Boyd then
faxed
back
a couple
of additional
pages
of changes
which
were
incorporated
into
a
final
version.
(Bohlen
Deposition,
Page
20).
Mr.
Bohlen does not
remember whether
he
drafted
the sentence
finding
that
the
County’s
Solid
Waste Management
Plan’s
prohibition
of any
landfills
other
than Waste Management’s
is
an
unconstitutional
infringement on
the City’s
home
rule powers,
but he
was
clear that this
had
long been
the
expressed
will and
feeling of the
City Council.
(Bohlcn
Deposition,
Page 22).
Robert
Boyd
confirmed
that
he
drafted
the
proposed
Findings
Of
Fact.
(Boyd
Deposition,
Pages
19,
22).
He added
that he
reviewed the changes
made to his draft
and
approved
them.
(Boyd
Deposition,
Page
20).
He approved these changes
made
to
his
drafts
because “they
reflected a
position
that
was
consistent
with
mine
based
on
what
I
heard
and what
I
had
read.”
(Boyd
Deposition, Page
32).
Regarding the language
in
the
Findings about
the County’s Solid
Waste Management Plan
unconstitutionally infringing
on
the City’s
home rule authority,
Mr. Boyd
didn’t recall whether
he drafted that specific
language,
but
stated,
“I
don’t
recall
whether
I
did
or
whether
I
didn’t,
but
that
is
n
consistent with what I feel.”
(Boyd Deposition, Page 31).
The
County
bases
its
argument
that
the
contacts
between
Mr.
Bohien
and
Mr.
Boyd
were
improper
cx
parte
contact
on
the
legally
and
factually
unjustified
assertion
that they
represented contacts
between a “party” and a hearing officer.
A decision maker
and a
decision maker’s
technical
and legal staff are not, and
have never
been, a
“party”
within the meaning of that
term as used
in
all
of the
cases decided on
ex
parte contacts.
A review of the four cases cited
by
the County in
support
of its
argument
is
illustrative.
The
County first cites
Gal/atm
National Company vs.
The
Eu/ton County Board,
PCB 91-
256 (June
15,
1992).
In that case, Fulton County was both the applicant and the decision
maker
where
the
County
Board
actually
designated
a
team
to
act
on
behalf
of the
application
which it was required
to consider.
The PCB was critical of that team’s lawyer
who
was
assigned
specifically
to
represent
the
“applicant”
because of
his
frequent
cx
parte contacts
with
both the
Hearing
Officer and
the
County
Board
members
who
made
up
the
siting
hearing committee,
However,
this
Board
did
not
find
that
these contacts
rendered
the
hearings
fundamentally
unfair because
they
did
nut
reach
the
level
where
“as
a
result of improper cx
parte communications, the agency’s decision making
process
was irrevocably tainted
so as to
make the
ultimate judgment of the agency unfair, either
to
an
innocent
party
or to
the
public
interest
that
the
agency
was
obliged
to
protect.”
(Citing
E
&
E
hauling,
/2/S
A/.E.2d at
603,).
In so
finding,
the
Board
emphasized
that
neither
the committee of County
Board
members
assigned
as the
“hearing
committee”
nor the hearing officer represented
the decision maker, and that the
only
function of this
committee was
to
preside at the
hearing and
make
a
recommendation to
the
flu!
County
Board.
(PCB
91-256,
Slip Opinion at Page
13).
31
The County next cites to
Concerned Citizens
For A Better Environment vs.
City of
Havanna and Southwest Energy
Corporation,
PCB 94-44 (May
19,
1994).
In that
case,
in
addition
to
cx
pane
contacts
between
the
applicant
and
the
hearing
officer,
the
applicant participated
in
interviewing
the hearing officer
prior
to
her
appointment,
the
applicant was a
signatory
to
the hearing officer’s
fee agreement,
the
applicant retained
contractually the right to terminate the hearing officer,
the hearing officer’s invoices went
directly
to the applicant, and the hearing officer wrote
a letter to the applicant describing
him as “the primary beneficiary” of her services.
The PCB
correctly found that this
close
relationship between the Hearing Officer and
the applicant created inherent
bias,
but
that
has nothing
to
do with
the instant case
where
Town &
Country
was
not
involved,
in any
way, with
the selection
of Mr.
Boyd
as
the Hearing
Officer.
(Volini
Deposition,
Page
54).
Interestingly, although Mr.
Boyd, who was, as Hearing Officer, nothing more than a
City
employee,
had
contact
with
Mr.
Bohien
in
the
preparation
of
his
findings,
he
testified
that
he
realized
that
he
had
to
minimize
his
contacts
with
the
City
in
order
to
achieve
and maintain
independence.
(Boyd
Deposition, Page 36).
The
County
notes
that
one
of
the
primary
issues
in
assessing
cx
parte
communications
with
a
Hearing
Officer
is
“whether
the
1-learing
Officer
provided
any
recommended
findings
to
the
siting authority,”
(County Brief at page 98), and
in
support
of that
proposition cites
Citizens Against Regional Landfill
vs.
Illinois
Pollwion
Control
Board,
ci aL,
255 !lLApp.3d
903
(3” DEs!.
1993).
Again,
the cited
case doesnt
support
the proposition.
In
Citizens Against Regional
Landfill,
the Appellate Court
approved of
the
County
Environmental
Attorney, who also
negotiated
the
Host
Agreement
with
the
applicant
acting
as
the
Hearing
Officer.
noting
that
he
was
not
a
decision
maker
and
32
adding
as an
afterthought that
he
did
not
make
any
recommended findings.
The
Court
also
pointed
out
that
Petitioners
on
appeal
in
that
case
failed
to
identify
any
conduct
on
the part of the Hearing
Officer
which
affected
the
outcome of the
case
(194
111 Dec.
at
348).
It
is
noteworthy
here
that
the
County’s
Brief is
silent
as
to
Hearing
Officer’s
Boyd’s conduct during the siting
hearing.
Lastly, for the proposition
that it is
fundamentally unfair for the siting authority’s
attorney
to
advocate
a
position
in
favor
of an
application
at
the
same time as he
is
representing
the purportedly impartial
decision maker, the County
cites
Sierra
Club,
ci al.
vs.
Will County Board,
ci
al,
PfJB
99-136 (August
5,
1999,),
a case in
which the attorneys
in
this
case represented
the
siting
authority,
Will
County.
Curiously,
that
decision
has
nothing
to
do
with
a
siting
authority’s
attorney
advocating
in
favor
of
a
position.
Actually,
Sierra
Club
is
the
case
which
established
the
proposition
that
there
is
a
distinction
between a
decision maker and
a
decision maker’s
staff,
and
that
a
decision
maker can receive recommendations
and proposed findings
from
its staff (including
staff
attorneys)
after the
public
comment period
is closed.
In
Sierra
(‘lab,
the County
Board
received,
some
two
weeks after the public comment
period expired,
a document entitled
‘~FinalReport
And Recommendations Of Will
County
To
The Pollution
Control
Facility
Committee
Concerning
The Prairie View
RDF
Siting
Application”
authored
by
County
staff,
the
Will
County
Special
Assistant
State’s
Attorney,
and
Engineering
Solutions,
a
hired
consultant.
The
Report recommended 52
special
conditions
of siting.
Except
for
some
modifications
in
the
conditions,
the
Will
County
Board
explicity
adopted
this
Report as the
basis and
reasoning for its decision to approve
the siting application.
(PC’B
99-136, Slip Opinion at
Page 4).
33
In arguments uncannily similar to those advanced by the County
here,
Sierra
Club
contended
unsuccessfully
that
the
siting
proceeding
process was
fundamentally
unfair
because
the County
Board
unfairly
considered
evidence outside
the record,
the
County
Staff
Report
was
filed
after
the
record
closed,
the
County
Staff
Report
referenced
evidence
and
documents
that
were
not
properly
placed
in
the
record,
and
the
Report
contained
uncross-examined
expert
testimony.
Sierra
Club
further
contended
unsuccessfully
that
the
Will
County
Board’s reliance
on
the
County
Staff Report was
improper because of the
bias of the authors of that Report
in
favor of the applicant.
The
PCB
in
Sierra
Club
specifically
pointed
out
that
a
consultant
report
or
staff
recommendation
is not
binding on
the decision maker and, therefore, “even if the County
staff
and
consultants
did
not
review
the
application
with
objectivity,
the
Will
County
Board
did
not
have
to
accept the Olson
Report findings.”
(PCB
99-136, Slip
Opinion at
Page12).
The
County
gives
great
weight
to
the
fact
that
Chris
Bohlen
is
Corporation
Counsel
for
the
City
of Kankakec.
There
is,
however,
not
a
shred
of evidence
in
that
record that he
ever conferred with
or advised
any of the City Council
members regarding
the
merits of the
pending
siting
AppLication,
and
his
testimony
that
he
did
not
remains
unrebutted.
if
anything,
the
facts
in
Gal/a/in
v.
Fu/ton
County
Board,
PGB
91-256,
demonstrate
that
it
is
not
the
title
people
carry,
but
the
role
they
play
which
is
determinative
of whether
they
act
properly
in
a
siting
proceeding.
in
that
case,
where
Fulton
County
was
both
applicant
and
decision maker,
the
PCB
found
that
the
County
was
successftilly
able
to
separate
those
functions
and
segregate
the
personnel
who
performed them.
34
The County
also argues
that the City Attorney’s assistance to
the Hearing
Officer
in
drafting the proposed Findings Of Fact
is an
unfair
violation of the City’s own
Siting
Ordinance.
It
is
well established
that
the Board
is
without
statutory authority
to compel
enforcement of a
local ordinance,
and that failure to strictly comply
with local ordinances
does
not
necessarily
render
a
proceeding
fundamentally
unfair.
Sierra
Club
vs.
Will
County,
PCB
99-136
(August
5,
.1999).
Unless
violation
of
the
local
ordinance
contributes
to
fundamental unfairness,
it will
not be considered.
The City Ordinance does call
for the Hearing
Officer to
draft proposed
Findings
Of Fact,
although
it does not
preclude
him
from
receiving
assistance
in
that
endeavor.
The County,
however,
argues
that
the Hearing
Officer’s
receipt
of assistance and
input
from Mr.
Bohien is
a violation ofthe City Ordinance, and that it rendered the proceedings
fundamentally
unfair in
that
it
cause
Mr.
Boyd
and
his
findings
to
be
biased
in
favor of
the Applicant.4
in
support,
the
County
cites cases
announcing
that
a
Hearing
Officer should
he
disqualified
for bias or prejudice
if
a disinterested observer might conclude
that he had.
in
sonic
manner,
prejudged
the
facts
or
the
law
of
the
case
in
advance
of the
hearing.
However, the County
fails to
show that this
1-tearing Officer
was
biased or prejudged the
Application.
On
the contrary, Town &
Country
has already
cited Mr.
Boyd’s testimony
that
he approved the changes and the
additions made to the document which
b~
authored,
and
that
in
each
case
those
changes
and
additions
were
consistent
with
his
views based
4
lown
& Country
will
riot belabor the continuous
unsupported references
in
theCounty’s
Brief to
the City
or tvIr,
Bohlen actually
drafting the proposed Findings.
However,
references on
Page 96 of the County
Brief that
“at
no
time
before the City Council
voted on those purported findings
were any of the parties informed that
those indings
were
actually drafted
by
Attorney liohlen,” and “allowing an active participate and advocate
in
favor of the Application
to
authorthe purported independent and impartial
lindings.’’ and on
Page 97
that “at
no
time was there a disclosure that
the Findings
and Conclusions were
actually drafted
by
a party (The City of Kankakee.)” go
too
far and
need to
be
mentioned as continued exampks of the County’s
chronic distortion
of
the facts.
35
upon
the evidence.
While
the
County
insists
on
portraying
Mr.
Boyd
as
a
tool of the
unproven
collusive alliance
between the
City and the
Applicant,
Mr.
Boyd’s own
words
regarding his understanding of his role belies that entirely:
“I
didn’t know who the players were and who was angry at
whom or who was resisting whose advances.
That’s always sort of important, but it dawned on me that
this was a statutory thing, that nobody wants a landfill or
very few people are
willing to
accept a landfill, but you got to
have them.
And so, what they done
is they cranked up some procedures
and regulations
and standards, and if you
met those, then
you get to operate
a
landfill.
And I thought
it would be
a
pretty straight forward situation
that would not cause me
a lot of angst, and
1 could go up there
and at the risk of sounding a
little mawkish, make some money
and perform some public service.”
(Boyd Deposition,
Page 16)
The
County
next complains
that
the
City
Council
was
misled
by
not
knowing
“that
the
Findings
and
Conclusions
were
actually
drafted
by
the
City’s
attorneys
and
staff.
(County
Briet
Page
98).
Aside
from
the
fact
that
this
characterization
of the
Findings’
authorship
is
untrue,
Town
&
Country
feels
compelled
to
point
out
that
it
doesn’t
matter,
based
upon
existing
law.
‘Fhe
City
was
free
to
accept
or
reject
these
Findings
in
whole
or
in
part.
The
fact
that
the
Findings
of the
Hearing
Officer
did
represent his
best
effort
and
contained
a
balanced,
thoughtful,
and
honest
evaluation
of
the evidence
is
a
bonus,
but under
the standards
set
out in Sierra
Club vs.
Will
County.
it
is
irrelevant.
This
is
even
more
clear
after
the
Board’s
recent
decision
in
Waste
Managenient o/Illinois
vs.
Kane
County Board,
PCB 03-104 (June
19,
2O03~
never even
mentioned
the
County
Brief
In
that
case,
the
Board
considered a
memo
by
one
of the
Board
members
which
contained
a
summary
of
evidence
and
alleged
references
to
matters
not
in
the record.
Waste
Management
argued
that
the
memo
made
inaccurate
legal
conclusions
and
misstated
facts
and,
because
the County
Board
considered
it,
the
siting decision was legislative rather than adjudicative.
In rejecting Waste Management’s
arguments the
Board
noted
that
“the
decision of a
local
siting
authority
is
not
tainted
merely
because it adopts
the
findings
and recommendations of persons who may have
some
bias
concerning
the
merits
of
the
siting
application.”
(Citing
Land
&
Lakes
Company
vs.
PCB,
319 Jll.App.3d
41,
743
N.E.2d
188,
3’S”
LEst
2000,).
The Board
also
affirmed the principle that the
siting approval process
is both quasi-legislative and
quasi-
adjudicative.
The
foregoing
makes
the
County’s
next
argument,
namely
that
the
Hearing
Officer did
not
have
access to
the
entire record before drafting his
proposed Findings Of
Fact equally irrelevant.
Nonetheless, Town &
Country
is constrained
to point out
that the
County’s assertion that
Mr.
Boyd
did not have
the public
comments is contradicted
by
the
record
as
a
whole.
Actually,
Mr.
Boyd
testified
initially
that
he
did
see
the
pubLic
comments
and
then
went
on
to
say
that
while
he
couldn’t
independently
recall
all
the
minutia that
constitutes
the record
in
this
case, if the
City
sent
him
the
public
comments
he
saw them.
(Boyd
Deposition,
Pages 44, 45).
Mr.
Bohlen testified
unequivocally that
the public comments were,
in fact, sent to Mr.
Boyd.
(Bohlen
Deposition,
Page 26).
Lastly, the County argues that the proceedings were
fundamentally unfair because
the
Hearing
Officer’s
Report
was
not
placed
in
the
public
record.
The
basis
for this
argument
is
that
the
Report
submitted
to
the
City
Council
on
August
18,
2003
was
subsequently
edited.
Additionally,
the
County
argues
that
this
edited,
subsequent
document does not
represent the Findings OfFact
And
Conclusions Of Law which were
voted upon
by
the City Council.
Neither argument has merit.
37
During
the Council’s deliberations of August
18,
2003,
which
deliberations
are
recorded verbatim
in
the minutes
of the meeting,
Mr.
Bohlen
was
asked
several
times
to
correct
errors
in
the document
being considered
by the
Council
and,
at their request,
he
told
them
that
he
would
clean
up
the document
and make appropriate corrections.
(C-
1915,
1916,
1922).
Mr.
Bohlen testified that he
felt that
the Council
had
directed him
to
make
corrections
and clarifications, and
that
these
did
not change
the substance of the
document
approved
by
the
City
Council.
(Bohlen
Deposition,
Page
50).
The
City
Plazmer
assisted
in
this
process.
(Bohien
Deposition,
Page
47).
All
of the
changes
are
appended to
the County’s
Brief, and white
one
man’s
substance
is another man’s fluff,
a
fair reading of those
changes indicates that they
did not
change the substance or meaning
of the document
approved.
The
changes are essentially correction of typos,
grammatical
changes, syntax
corrections,
and
clarifications of ambiguities.
Mr.
Bohlen did
point out
that
the
final
corrected
version
was
sent
to
all
City
Council
members.
(Bohlen
Deposition,
Page
51).
Absent complaint
by
those
City
Council
members,
one
can
only
conclude that
the changes conformed
to the Council’s direction.
For the foregoing reasons, neither the conduct of the City Attorney or the Hearing
Officer rendered the proceedings fundamentally
unfair.
C .The
Hiring Of Dr. Ronald Yarbrough As The City’s Consultant And The Receipt
And
Consideration
Of
His Reports Did Not
Render
The Proceedings Fundamentally
Unfair
The
County
makes
four
fundamental
fairness
arguments
regarding
Dr.
Ronald
Yarbrough
and
his
reports.
They
argue
first
that
the
fact
that
he
was
selected
by
Tom
Volini
of
Town
&
Country
to
be
the
City’s
consultant
rendered
the
hearings
fundamentally
unfair.
They
also
argue
that
his
prior
business
relationship
with
Mr.
38
Volini
biased
his
reports.
Thirdly,
they
argue
that
the
receipt
of
his
reports
into
the
record
after the close of the
public
comment
period unfairly
deprived the County of an
opportunity
to
respond.
Lastly,
the County
argues that the City improperly
relied
on Dr.
Yarbrough’s
reports
in
deciding
to
approve
the
Application.
None
of
these
four
arguments have any basis
in fact or law.
With
regard
to
the selection
of Dr.
Yarbrough
as
the City’s
geologic
consultant,
the County,
in an extreme
example of hyperbole, alleges that:
“The collusion between the Applicant
and
the City continued after
January 9, 2003
decision ofthe PCB
and before the re-filingon March
7,
2003, when the Applicant acted
on behalfofthe
City in obtaining
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 claim was
an “independent” consultant.
Unbeknownst to any ofthe Objectors,
the City did,
indeed, retain the individual recommended by
Volini to
draft reports on which
the
City Council
would rely
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 submitted at the hearing.”
(County
Brief, Pages 85,
86)
Every
sentence of the foregoing excerpt
from
the
County’s Brief
is a fabrication,
unsupported
by
the
record.
There
is
no
evidence
whatsoever
in
the
record
about
collusion
between the
Applicant
and
the
City
at
anytime,
let
alone
prior
to
January
9,
2003.
In arguing to
a jury, lawyers
are
restricted
to
arguing only
those
inferences
which
reasonably
flow
from
the
evidence.
The
only
evidence
in
the
record
regarding
communications
between the
Applicant
and
the
City
is
restricted
to
routine and
mostly
unrelated business communications
while
no Application
was
pending
(communications
which
have
been
approved
by
every
Court
which
has
ever
confronted
the
issue).
39
Therefore,
the inference of “collusion”
is not reasonable.
The Applicant did
not hire the City’s geologic consultant.
Dr. Yarbrough recalled
that
Tom
Volini telephoned
him
and
asked
him if he
would
be
interested
in
doing
some
consulting,
but
that
Volini
did
not
even
fully
explain
his
own
role
in
the
process.
(Yarbrough
Deposition,
Pages
9,
Il,
12).
After
Yarbrough
expressed
interest,
he
remembered that Tom
Volini told him he would submit his name to the City.
(Yarbrough
Deposition,
Page
9).
Tom
Volini’s
recollection
is
slightly
different,
but
not
entirely
inconsistent
as
he
believed
he
called
Dr.
Yarbrough
to
verify
that
Yarbrough
had
his
resume
in
with
the
City.
(Volini Deposition,
Page
17).
That only
conversation
which
Tom
Volini
had
with
Dr.
Yarbrough
lasted
less
than
10
minutes.
(Volini
Deposition,
Page
37).
Mr. Volini
further testified
that
he
was
aware that
the
City
was considering
3
or
4
consultants.
(Volini Deposition,
Page
31).
His
only
recommendation
to
the
City
was
that
they
not
hire
a
consultant
who
did
significant
work
for Waste
Management.
(Volini Deposition,
Page
35).
Given
Waste
Management’s posture
as
an
Objector
to the
Application.
Mr.
Volini’s
concern
seems
more
than
reasonable.
Chris
Bohlcn
recalled
that
Dr.
Yarbrough
was
one of group of consultants
whose names
had
been
provided
to
the
City
by
the
JEPA,
and
that
Dr.
Yarbrough
was
ultimately
hired
at
the
request
of
Richard
Simms,
another
City
employee,
who
was
Superintendent
of
the
Kankakee
Municipal Utilities.
(Bohlen
Deposition,
Page
14.
Bd
Hrg. Page 131).
There
is
no
evidence
that
the
February
3,
2003
executive
session
of the
City
Council
was
a
strategy
meeting
between
the
City
and
the
Applicant,
or that
a
decision
was made at
that
meeting
to
hire
a consultant.
The
County’s
assertion is
nothing
more
than prejudicial
speculation,
Mr.
Volini acknowledged
that he
was present
for a portion
40
of the Council’s
executive session on February 3,2003
when there was discussion of an
appeal
of
the
PCB’s
decision
of
January
9,
2003
reversing
the
first
siting
approval.
(Volini
Deposition,
Page
12).
Volini remembers
that
he
advised the Council
during the
meeting
that he
would appeal,
and
that he
also
intended to
refile the
siting Application.
(Volini Deposition, Page 21).
Mr.
Bohlen remembered that Tom
Volini was present
only
for that portion of the executive session
when the City’s participation in the appeal ofthe
PCB
decision
was
discussed.
(Bohlen
Deposition,
Pages
5,
10).
The
City
had
unanimously
granted
the
first
siting
Application,
and
the
City
and
Mr.
Volini
understandably
and
properly shared
a
common interest
in
defending that
decision.
This,
again, goes to
the
legislative
role played by
the
City
Council.
The concept
that
parties
who aligned on the same
side of a lawsuit would
discuss their respective
roles
is neither
surprising
nor
unusual.
The County had no
difficulty
understanding
this when
it
defended
its communications
with
Waste Management regarding their joint opposition to
the
Town
&
Country
siting
Application,
even
while
Waste
Management’s
siting
Application was
pending before Kankakee County.
(PCB 03-25).+
While
the actual
record does not even remotely justify the
County’s statement that
the
February
3,
2003
executive
session
of
the
Kankakee
City
Council
represented
a
strategy
meeting
at
which
a
decision
was
made
to
hire
a
consultant
selected
by
Mr.
Volini.
the
County
attempts
to
further
support
its
conspiracy
and
collusion
fantasy
by
noting
that
Mr.
Bohlen
refused
to
release
the
minutes
of the
executive
session
during
discovery
in this case.
However, the County did
not
press the
issue (presumably because
it
is
well
established
that
the
discussion
of
litigation
is
an
appropriate
subject
for
executive sessions)
and
never
filed a
motion
to
test Mr.
Bohien’s
claim of privilege and
41
compel release of those minutes.
The
County
then
argues
that
the
prior
business
relationship
between
Dr.
Yarbrough
and
Mr.
Volini would have biased
Dr.
Yarbrough and
also proves that he
was
Town
&
Country’s
hand-picked
choice
to
be
the
City’s
consultant.
The
relationship
referenced
is,
however,
too
tenuous
and
remote
to
support
such
an
inference.
Dr.
Yarbrough remembered that he
did
some mine subsidence field work for Mr.
Volini
on
a
landfill
project during the
mid-80’s
(Yarbrough Deposition, Page
13).
He also
believed
that
some
drilling
work
on
a
landfill
owi~edby
Mr.
Volini
in
Southern
Illinois
was
contracted
to
him by
Andrews
Engineering,
and that
he
may or may
not
have
seen
Mr.
Volini
one
time
during
that
work.
(Yarbrough Deposition,
Pages
14,
15).
Other
than
those two
instances, he has had no contact with Mr. Volini.
(Yarbrough Deposition,
Page
15).
He also noted
that he did
not know who would pay him,
He did
not bill
Mr.
Volini,
and
that
ultimately
knowing
that
it was Mr.
Volini’s Application
had nothing
to
do with
his decision making process.
(Yarbrough Deposition, Pages
16, 27).
Tom Volini recalled that he has had one contact
with
Ron
Yarhrough
in
an
IS
year period.
(Volini
Deposition,
Page
31).
and
disputed
Dr.
Yarhrough’s
recollection
regarding his
work for Andrews
Engineering
as Volini
had
not
yet acquired
that
facility
when the work was done.
(Volini Deposition,
Page
85).
The foregoing remote contact between the Applicant and the City’s
consultant can
hardly be thought of as prejudicial, nor is
it surprising given the fact that landfill siting in
Illinois
is
a rather small
and
specialized
business.
The
Board
can
readily
verify
this
by
scanning
its
database
to
see that
at
least one
of the attorneys representing parties
in
this
case
have been
involved
in
almost
every
major landfill
siting
case
to
come
before the
42
Board in the past
10 years.
Thirdly,
the
County
argues
that
the
receipt of Dr.
Yarbrough’s
reports
into
the
record
after
the close
of the public
comment
period
deprived
it of the
right
to
cross-
examine.
They make this
argument despite acknowledging the well established principle
that
a
party
will
not
be
allowed
to
cross-examine
a
person
who
merely
submits written
comments.
Southwest Energy Corp.
vs.
Jllinotv
Pollution Control Board,
275 lilApp.3d
84,
655 N.E.2d 304
(4th
Dist.
1995).
Actually, the PCB went even further in
Sierra Club
vs.
Will
County,
PCB
99-136
(August
5,
1999),
when
it
held
that
with
regard
to
the
consultant
report
tiled
after the
close
of
the public
comment
period
in
that
case,
that
“even if the report
had
been filed during
the public
comment
period,
Sierra
Club
did
not
have a right to
respond to the report or cross-examine
the Olson
Report’s authors.”
(PCB
99-136, Slip Opinion at
Page 9).
The County
attempts
to
avoid these
legal
principles by
arguing
that
Yarhrough’s
reports
were
actually
new expert testimony
and
that
the
proceedings are
fundamentally
unfair
if
the parties are not
allowed
an
adequate opportunity
to
cross-examine
the expert
witness.
In
support,
they
mistakenly
cite
the
Sierra
Club
opinion,
when
the Board,
in
fact,
only
ruled
that
they
did
not
consider the
Olson
Report
in
that
case
to
be
expert
testimony.
(Slip
Opinion
at
Pages
9,
10,).
It is noteworthy
that the
Olson Report
in
the
Sierra
Club
case
was co-authored
by
a
technical
consultant,
Engineering Solutions.
(Slip
Opinion at Page
4,).
The Yarbrough
Reports are no
more expert testimony than
the
Olson
Report.
It
is
a review by
a technical
consultant of the
Application
and
the testimony
for
and
against the Application,
along
with
recommendations regarding siting
approval
and
suggested conditions of the
same.
43
Lastly,
the County argues
that the
City placed
too
much
weight on
the Yarbrough
Reports. Although the County doesn’t exactly specify how placing too much weight on
the
Yarbrough
Reports
is
harmful
or
fundamentally
unfair,
the
fact
remains
that
the
County’s
factual
assertion
is
again
incorrect,
A
review
of
the
City’s
Findings
demonstrates
that
Dr.
Yarbrough’s
conclusions
and recommendations are of minimal
significance.
The
County
would
have
this
Board
believe
that
but
for
the
Yarbrough
Reports, the City would not have granted siting approval.
The City’s
Findings Of Fact on
criterion
ii are composed
of
5
single-spaced
pages,
of which
6
lines
are devoted to
Dr.
Yarbrough’s
reports.
(C-1870).
The
City has
11
Conclusions Of Law
on
criterion
ii, of
which
one
deals
with
Dr.
Yarbrough,
and
even there Dr.
Yarbrough’s
opinions
are
only
found to
be
“supportive”
and
“for
the benefit of corroboration”
.
(C-I 872).
Lastly,
this City’s
approval on criterion
ii
is subject to
21
special
conditions, only
one of which,
the pressure grouting ofthe open joints in the exposed competent Dolomite,
related to Dr.
Yarhrough’s recommendations (C-I 875), and
that
is
not a condition
sought or welcomed
by
the Applicant.
D.
The City’s Council’s Actions
Did Not Demonstrate
Prejudgment Or Bias
The County
argues
that
the
City
Council
demonstrated
bias
by voting
in
favor of
this
siting Application when a previous Application
had
has been
found
to be
against the
manifest
weight
of the
evidence.
This
presumptuous
argument
is
unsupported
by
any
legal
authority,
because
no
such
authority
exists.
Manifest
weight
of
the
evidence
arguments are better considered in
the context of the individual substantive siting criteria
and
have
no
place
as
part of a
fundamental fairness
argument.
It
is
noteworthy
that
the
County
did
not
depose or
call
to
testify
any
City
Council
members, and
that the County
44
could
not
produce
evidence of a
single
statement
or
act by
any
City
Council
member
which would be direct evidence of bias or prejudgment.
Once again, the County
asks this
Board to
draw an inference which is unjustified by the facts and unsupported
by the law.
With
respect
to
criterion
ii,
3
witnesses,
including
the
Dean
of the
College
of
Engineering at the University of Illinois,
a nationally
renowned
and relied
upon expert in
solid
waste
containment,
testified
that
the proposed
facility
is
protective
of the
public
health, safety and welfare.
The witness for the County testified that
he couldn’t conclude
either way, on
public health, safety
and welfare
,
and the witness
for Waste Management,
Stuart
Cravens,
testified that professionally he could
not offer an opinion
on the subject.
5
As
will
be
discussed
later,
the
witnesses
for
the
County
and
Waste
Management
respectively, both had serious problems with credibility
and their own
bias.
The County
also
argues
that
the
City
Council
demonstrated
its
prejudgment
and
bias by
authorizing two
lawsuits against the County.
The
first of these was an attempt
on
the
part
of the
City
to
enjoin
the County
from
using
its
landfill
Host
fees
to
pay
the
astronomical
legal
expenses
related
to
the
County’s
opposition
to
the
City
siting
proceedings.
Again,
the
County
provides
no
legal
support
for this
proposition,
instead
arguing
that
the
very
fact
of this
lawsuit proves
that
the
City was
intent
on
granting the
Applicant
siting approval.
The
logic
is
missing
here.
Residents of the
City of Kankakee
are
also
residents
of the
County.
and
it’
those
Host
lees
received
by
the County
are
not
consumed
by
attorneys, they
could
be spent
on
a myriad of things which
will also
benefit
5
Once again, the County
so grossly
mischaracterizes the f~ictsas
to make
them
untrue.
On
Page 29
of their
Briet~the County states,
‘Mr. Cravens
concluded that
in
his opinion,
‘the landfill
is
unsuitable based
on
the
hydrogeology.”
Actually,
what
he said
is as
follows:
“My personal
opinion
-
professionally
I cannot
oiler an opinion.
I understand
I am not an engineer.
I
will
not offer a new opinion professionatly this
year
this
time
around on
whether
it
is
suitable or not.
I cannot offer an opinion
from
—
as
an engineering
standpoint
since
I am not
an engineer or designer, but from
a personal standpoint
I
believe
(lie landfill
is
unsuitable based
on the hydrogeology.
How that statements relates over to the engineering,
I can’t go there
because
I
am not qualified as
an engineer.”
(Ilrg.
Transcript Volume 4A,
Page
91).
45
the residents of the
City, such
as the development of recycling
programs,
subsidation of
garbage collection
expenses, needed public improvements,
and the
like.
The
City’s
concern about the
way
in
which
the
County was
spending
money
that
would
otherwise benefit residents of the City was heightened by the fact that the principle
basis
for the County’s
objection to the City’s siting activity was that the County has taken
the
position that
its Solid Waste Management Plan,
as amended
3
times
in anticipation of
the
City conducting siting proceedings, precluded
any political jurisdiction other than the
County
from
siting
a landfill.
This
led directly
to
the second
lawsuit authorized
by
the
City Council, where the City argued that the County’s interpretation of its Solid Waste
Management
Plan
as
amended
is
an
unconstitutional
infringement
on
the
City’s
home
rule powers. The County argues that this, alone, proves that the City was predisposed to
grant
Town
&
Country’s
siting
Application,
but
again
the
logic
is
missing.
If the
County’s
interpretation of its
Solid
Waste
Management
Plan
is
correct,
then
the
City’s
siting proceedings are
a
sham
and
a
nullity
because
no
outcome
other
than
a
finding
that
an application is inconsistent with the County’s Solid Waste Management Plan would he
possible.
It makes perfect sense that the City of Kankakee, as a home rule unit, did not
want
to he put
in
a
position
where
it
could
not meaningfully
exercise jurisdiction granted
to
it
by
Section
39.2
of the Environmental
Protection
Act.
The
City’s
wanting
the
right
to
meaningfully
be
able
to
conduct a
single
hearing
is not,
in
any
way. equivalent
to the
City being predisposed to grant siting approval.
The City’s lawsuit
is, therefore, about
thejurisdiction
and authority of two competing
political
subdivisions and
nothing more.
The County’s argument also ignores the long-standing recognition by the Board
and the Courts that political subdivisions charged with siting jurisdiction play both an
46
adjudicatory
and
a
legislative
role.
The
cases
uniformly
hold
that
conduct by
a
city
or
county
in
its
legislative
capacity does not
overcome
the presumption
that
the county
or
city will act without bias in
its adjudicatory capacity.
These cases go
all of the
way back
to
E
&
E Hauling vs.
Pollution
Control Board,
115
JlLApp.3d 898,
451
N.E.2d 555
(20~1
Dist
1983).
The fact that
a
governmental
unit
pre-approved a
landfill by
ordinance
did
not
overcome
the presumption
that
it
would conduct the
subsequent
siting
hearing
in
an
unbiased way, and
continue
uninterrupted through
Concerned Adjoining Landowners
vs.
Pollution
Control
Board,
288
fll.App.3d
565,
680
N.E.2d 8/0
(June,
1997~.
A
good
example
of
this
Board’s
recognition
that
units
of local
government
can
successfully
“wear
different hats” is found
in
Gallatin National
vs.
Fulton County Board,
NiB 91-256
(June
15,
/992,,),
where
Fulton
County
owned
and
operated
its
own
small
landfill.
The
County
Board
commissioned
a
study
to
determine
its
future
course
of action
regarding
that landfill, and the study result recommended an expansion of the existing &eility. The
Fulton
County
Board
then authorized
an
application
on
the
part of the County.
itse!t~to
expand
the
landfill
and
designated
funds and
individuals
to perform
that
task.
When the
group
so
designated
filed the
application
for expansion, the County Board now took on
the
rote
ol’ an
adjudicatory
body
and
voted
on
the evidence presented
at the expansion
hearing.
Perhaps
the
County’s
argument
which
most
appallingly
distorts
and
twists
the
facts
(and
there
were
many contenders
for
this designation)
is
that “the Yarbrough
Reports
were
based
upon
improper cx
parte communication.”
(County
Brief,
Page
102).
This argument
is based upon a single telephone call which Dr. Yarbrough made to the
Envirogen
office where
he
spoke with
an
unnamed, unknown
geologist
and
request
that
47
he
be
furnished
with a copy of the Cravens’
Report.
He had
been looking
for that
report,
but
could
not
find
it
in his
local library.
The unnamed individual
he
spoke
to
sent
him
a
copy of the report,
and
that was the
end of the communication.
(Yarbrough Deposition,
Pages 24,
25).
Stuart
Cravens
was
an
Objectors’
witness
at
both
the
first
and
second
hearings,
and
his
“report”
is
a
publication
he
co-authored
while
employed
with
the
Illinois
State Water Survey.
That report was heavily
relied
upon by Objectors
in the first
hearing as
evidence
which
they
believed tended
to
refute
the Applicant’s
conclusions.
What
is
so
appalling
about
the
County’s
statement
that
the
Yarbrough
Reports
were
based
upon
improper cx
parte communications
is
that the
single communication cited
in
support
of the statement
actually represents
an effort on
the part of the City’s
consultant
to seek out
information that would ensure a comprehensive and objective review.
E.
Town & Country Did Not Have Improper
Ex
Parte Communications
With The Decision Makers
The
County
alleges
throughout
its
arguments
on
fundamental
iäirness.
and
specilically
in
arguments
lllB2(h)i
and
lllB2(n)
(which
appear to
he
virtually the
same)
that
own
&
Country,
through
its
President,
Tom
Volini,
had
extensive
improper, pre-
filing contacts with the decision makers.
The County does not allege any cx
parte
contacts
while
the
Application
for
siting
approval
was
pending.
Instead,
the
County
points
initially to all
of the contacts related
to the 2002
Application
which
were
found
not
to
be prejudicial by
this Board
in
PCB 03-31.
Next the
County alleges
extensive improper contacts
between Mr.
Volini
and
the
City subsequent to the
first
siting decision and before the
filing of the second siting
Application.
Mr.
Volini
indicated
that
his
son, Joe Volini,
may have
been
involved
in
48
some
of
these
contacts
which
were
limited
to
trivial
and
clerical
matters.
(Volini
Deposition,
Page
9).
Mr.
Volini
also
indicated
that
he
talked
on
numerous
occasions,
primarily with
the Mayor,
about
an
industrial park
he
hoped
to
develop on
nearby
land.
(Volini
Deposition, Pages
11,
19).
Lastly,
Mr.
Volini
acknowledged
being present
for
part of the City Council’s executive session on February
3,
2003.
An appeal of the
PCB
reversal was discussed.
Pre-fihing
contacts
between an
applicant
and
a
decision
maker even
on
matters
related
to
a
subsequently
proposed
landfill
are
not
improper.
Residents
Against
A
Polluted
Environment
vs.
PER,
293
IlLApp.3d
219,
687
N.E.2d
552
(3’~’Dist.
1997).
Even a closed door pre-fihing meeting between an
applicant and
a decision
maker
is
not
improper.
Beardstown Area
Citizens
For
A
Better Environment
vs.
City
of Beardstown,
PCI?
94-98 (January
1/,
1995).
When
even
pre-fihing reviews of a proposed application
by
the
decision
makers
technical
staff have
been
approved,
(See
Sierra
(‘lul
vs.
Will
County),
the
innocuous
contacts
between
Tom
Volini
and
various
City representatives
prior to
the
tiling of the
siting Application are
not improper in any
way.
IV.
THE
CITY
COUNCIL’S
DECISION ON
THE SUBSTANTIVE SITING
CRITERIA WAS NOT AGAINST THE
MANIFEST WEIGHT
OF
THE
EVIDENCE
A.
There
Is
Ample Evidence To Support The
City
Council’s
Finding That
The
Facility
Is
So
I)esigned,
Located,
And Proposed To Be
Operated That The
Public Health, Safety, And
Welfare Will
Be Protected
L
Statement of Facts
The basic facts regarding the proposed facility location and design
are
well
known
to
the
Board
through
the
Briefs
filed
by
the
parties
in
P03
03-31.
To
summarize those
49
undisputed
facts, Town & Country
proposed
a 400
acre facility with
a waste
footprint of
236
acres
and
projected
site
life of 30
years
on the
South
side of the
City of Kankakee.
The
site
was
investigated and
the
facility
was
designed by
Envirogen under
the
overall
supervision
and
direction of Devin Moose, a professional engineer and Director of the St.
Charles
office
of
that
firm.
Daniel
J.
Drommerhausen,
a
senior
hydrogeologist
at
Envirogen and
a
registered
professional
geologist
in
Illinois,
testified regarding the
site
investigation,
and
Devin
Moose,
with 20
years of experience
in
solid
waste engineering,
testified regarding the design
and
proposed operations.
Both
witnesses presented
their
direct
testimony
with
Power
Point
presentations.
Mr.
Drommerhausen’s
Power
Points
are
Applicant’s
Exhibit
#5.
(C305-C351).
Mr.
Drommerhausen’s
direct
testimony
accompanying the
Power
Points
is
found
at
Volume
IB,
Pages
80-128.
Mr.
Moose’s
Power Points
are identified as
Applicant’s Exhibit #7.
(C353-C418).
Mr. Moose’s
direct
testimony
accompanying
his
Power
Points
is
found
at
Volume
213,
Pages
112-
124
and
Volume
2C,
Pages 4-8!.
All of the
following
basic
background
inibrrnation
is contained
in the Power Points and direct testimony of Mr. Moose and Mr. Drommerhausen and will
not
he
cited by
specific page number.
Devin
Moose testified that he has experience on 45
landfilL projects consulting for
both
industry
and
government
clients.
He has been
involved
in
approximately
30
siting
proceedings in the State of Illinois.
lie is familiar with the levels of required compliance
and
approval needed
to
site
and
permit
a
landfill
as well
as
all
Federal,
State,
and
local
site
location
standards.
‘he
facility
is
immediately
West
of Interstate
57
on
the
South
side
of
Kankakee,
approximately
2
miles
from
the
Kankakee
River.
The
facility
complies
with
all
applicable
location
standards,
including airport setback.
It
lies outside
50
the 100-Year Flood Plain,
is not in
wetlands or waters of the U.S.,
is not
in a fault area or
unstable area, and
is
not
in a seismic
impact zone.
The
facility does not
impact on
wild
and
scenic rivers,
historic
and
natural
areas, or endangered
species.
It
is
not
a regulated
recharge or sole source aquifer area.
The engineered features of the site
include excavation ofthe weathered Dolomite
with
installation of a
composite
liner system
consisting of a
recompacted
cohesive soil
layer
using
on-site
materials,
that
layer
being
recompacted
to
a
maximum
hydraulic
conductivity of
1
x
times
10-7
centimeters
per second.
The
top of the recompacted
soil
liner will
be
a
60
mu.
HOE
liner with
a minimum of two
6Omil.
HOPE
liners
under
the
leachate
lines
and
sumps.
Underneath the
recompacted
cohesive
soil
liner,
Mr.
Moose
proposed
to
place
an
average of 4.5
feet of structural
backfill
to
serve
as the base
of the
landfill.
This
would
also
be
recompacted
to
a
maximum
permeability
of
I
x
10-7
centimeters per
second.
Mr.
Moose
also
proposed
to
incorporate into
the
design
a
state of the art
leachate
management
system,
a
landfill
gas,
collection,
and
monitoring
system
and
a
final
cover
consisting
of
I
foot
thick
recompacted
cohesive
soil
layer,
a
textured,
double-sided,
40
mil.
LLDPE
geomembrane.
a
minimum of
3
feet of protective soil,
and
a top
vegetative
layer.
Mr.
Moose
proposed
a
groundwater
monitoring
system
consisting
of
29
monitoring
well
locations
with
quarterly
monitoring
and
regular
evaluation
of
groundwater quality data.
Mr.
Moose
characterized the
significant differences
in
the degree.
quantity,
and
thoroughness
of the hydrogeologic
investigation
from
the
first
Application
to
the
second
Application.
(I-kg.
Tr.
Volume
3B,
Page
28).
Mr.
Drommerhausen
testified
that
for the
51
second
Application, 24 additional
soil
borings were
done, more than doubling the
19 that
were
included
in
the original
Application.
(Hrg. Ti. Volume
I B,
Page
95).
Twenty-one
of
these
soil
borings
(of
which
20
were
new)
penetrated
10
feet
or
greater
into
the
Bedrock with
410
linear feet of Bedrock was
cored.
Packer
tests were
performed
for 37
intervals
in
23
boring
locations
in
the
Bedrock.
(Hrg.
Tr.
Volume
IB,
Page
99).
Waste
Management’s
witness,
Stuart
Cravens, pointed
out
that
8 of Town &
Country’s
borings
actually penetrated 20
or more feet into the Bedrock.
(Hrg.
Tr.
Volume
4A,
Page
106).
70
of these
tests
resulted
in
“no
take,”
suggesting
the
presence of
low
permeability
rock.
(Hrg. Tr.
Volume
IB, Page
101).
Two angle borings were performed
to
investigate
for the
possibility
of vertical
fractures.
Ten
intervals
in
the
angle
borings
were
Packer
tested with
no
take
in
8
of those
intervals,
suggesting
that there are
no
vertical fractures
which
allow
rapid water movement
at the site.
(Hrg.
Tr.
Volume
lB.
Page
102).
Fifty
slug
tests
were
performed
to
measure
permeability
in
the
Bedrock
system.
(Hrg.
Ti.
Volume
I,
Page
104).
28
of the
43
borings
at the
site
penetrated
beyond the weathered
Bedrock,
(l-lrg.
fr. Volume
IC.
Page
60).
The Landfill
is proposed to
be
built
in the
Dolomite
Bedrock
below
the
weathered
portion
which
will
be
excavated.
The
upper
portion of the
Bedrock
is
low
quality,
but
that
quality
improves
greatly
with
depth.
(Hrg.
Tr.
Volume
13,
Page
98).
‘fhe
determination
of
what
constitutes
“weathered”
Bedrock
is
qualitative,
and
the
Packer
tests
that
did
take
water
were
always
near
the
upper
part
of
the
Bedrock,
thereby
supporting
this
distinction.
(l-lrg.
‘Fr.
Volume
1C,
Page
62,
Volume
2B,
Page
19).
Mr.
Dronimerhausen testified
that the distinction between weathered
and competent Bedrock
is
really
based on
the
permeability
test results
with
the area identified as
the weathered
52
zone
having
an
average
permeability
of
5.3
x
10-4
centimeters
per
second,
and
the
competent zone having a permeability of
1 .13
x
10-5 centimeters
per
second.
(Hrg. Ti.
Volume
IC,
Page
115).
One cannot
visually
identify
the hydrogeologically
weathered
Bedrock.
(Hrg.
Tr.
Volume 3C, Page
108).
Mr.
Drommerhausen indicated that the uppermost aquifer at the site
is the Silurian
Dolomite.
(Hrg.
Tr.
Volume
2A,
Page
43).
Permeabilities
in
the
Silurian
Dolomite
Aquifer
vary
greatly
depending
upon
location.
(Flrg.
Tr.
Volume
ID,
Page
85).
The
Dolomite
is
a confined aquifer under
pressure,
meaning
that
the hydraulic
heads
(water
levels) are
actually
higher than
the
top of the
Bedrock
surface.
(Hrg.
Tr.
Volume
1
B,
Page
113). This
is because the
low
permeability
Yorkville Till
overlaying
the Dolomite
acts as
a
cap,
and
therefore water levels
in
wells
finished
in the Dolomite
are higher than
the
top
of the
Dolomite
surface.
(Hrg.
Ti.
Volume
IB,
Page
113).
While
the
upper
weathered
Dolomite
is
clearly
an
aquifer,
the
competent
Dolomite
hydrogeologically
behaves
as an
aquitard although
permeabilities vary within each zone.
(1-Erg.
Tr.
Volume
3.4.
Pages
17.
18, 20).
Mr.
Drommerhausen acknowledged that all
the
rock materials under the site yield
water,
and
he
characterized
all
of
them
as
an
aquifer
instead
of an
aquitard
to
allay
concerns
regarding
the
classification,
but
the
classification
is
irrelevant
because
the
groundwater
impact
assessment
uses
permeability
values
rather
than
labels.
(Hrg.
Tr.
Volume
IC,
Page
12).
The
environmental
character of a
unit
depends
on
permeability
numbers, not terms
such
as aquifer or aquitard.
(l-lrg.
Tr.
Volume
I
B,
Page
119).
Mr.
Drommerhausen pointed
out
that
the classifications of aquifer
and
aquitard
don’t
represent
ends of a
continuum,
but
rather represent
degrees of permeability,
and
53
that
the boundary between
an
aquifer and
an
aquitard
falls at permeabilities between
I
x
10--i centimeters
per
second
and
I
x
10-s centimeters
per
second.
(1-Irg.
Ti.
Volume
I B,
Page
91).
He
supported
this
by
referencing
Freeze
and
Cherry’s
seminal
textbook,
“Groundwater.”
(Applicant’s
Exhibit
#24,
C466-C468).
He described this
textbook
as
the Bible for hydrogeologists.
(Hrg. Tr. Volume
lB. Page 91).
By constructing the
base of the landfill
well
into the Dolomite, an
inward gradient
is
created.
(Hrg.
Tr.
Volume
I B,
Page
116).
An inward
gradient
is nothing more
than
the difference between
the
potentiometric head
(unconfined
water
level
in
surrounding
Bedrock)
and
the
level
of the
leachate
in
the landfill
where
the
head
in
the Bedrock
is
higher.
The
inward gradient at this site
is typically
10 to
15 feet with some water wells in
the
Dolomite
having
levels up
to
20
feet higher
than
the
base of the landfill.
(FIrg.
Tr.
Volume
18,
Page
114,
127).
Mr.
Drommerhausen
explained
that,
with
an
inward
gradient,
if there
is
a
liner failure
in
the landfill,
water
would
flow into
the
landfill
from
the
Bedrock aquifer rather than leachate
flowing out ofthe
landfill
into the aquifer.
(1-kg.
Tr.
Volume
I B.
Page
115).
Mr.
Moose,
in
discussing
integration of the
design
with
the
natural
geologic setting.
emphasized
that
the
landfill
is being placed
deep into the aquifer
to
create
a strong,
inward
gradient.
(Hrg.
Tr.
Volume
2C.
Page
10).
It
is
the aquifer,
itself,
which
provides the driving pressure to
create the
inward gradient,
therefore
adding
to
the protection offered
by
the engineered features of the
facility.
(I-kg. Tr.
Volume
2C,
Page
IS).
The
greater
the
potentiometric
head
in
the
aquifer, the
stronger
the
inward
gradient will
be and
the more protective of the environment the
landfill
will
be.
~rg.
Tr.
Volume
313.
Page II).
54
The
last
witness
to
testify
on
behalf of
the
Applicant
in
connection
with
the
location and
the design ofthe facility was Professor
David Daniel, Dean of the College of
Engineering
at
the University
of Illinois
at Urbana/Champaign.
His
15
page resume
is
identified as Applicant’s Exhibit
#17
(C420-434).
Dr.
Daniel testified
that he
has spent
almost
all
of his
professional career working
on
waste
containment applications.
He has
work
experience
with
hazardous
waste
landfills,
solid
waste
landfills,
low
level
radioactive
waste
disposal,
high
level
radioactive
waste
disposal,
superfund
and
remediation
sites.
He
most
recently
co-chaired
a
panel
for the
National
Academy
of
Sciences studying the Yucca Mountain Facility which is the proposed national
repository
for spent nuclear
fuel.
(Hrg. Tr.
Volume 38,
Page 43).
1-Ic has performed relevant work
for over
100 different companies or agencies,
including co-authoring the EPA’s
guidance
manual
on
construction
quality
assurance
for
waste
containment
facilities.
He
has
chaired
the
American
Society
of
Civil
Engineers
and
Environmental
Geo-technics
Committee.
lie
has served
as editor and
chief of the
Journal of (leo-technical and
(leo-
environmental
Engineering
fbr
the
American
Society of (‘ivil
Engineers.
1-lis
research
work on
flow through
clay liners significantly
impacted
the
EPAs decision to
designate
2
feet
at
the
minimum
thickness
of compacted
clay
liners.
F-Ic
has
recently
authored
a
comprehensive report
for the
EPA
assessing
the
field performance of landfills.
(Hrg.
Tr.
Volume
3B.
Page
46).
He
has
authored
or co-authored
4
different
books
dealing
with
landfill
design
and
waste
containment
and
written
chapters
in
14
different
textbooks
commonly used
in engineering.
(Hrg.
Tr.
Volume 38, Page 47).
Dr.
Daniel
testified
that
he
was
retained
by
the
Applicant
to
essentially
peer
review
and
comment
on
the
siting
Application.
Professor
Daniel
initially
observed
that
55
the
number
of soil
borings,
the
amount
of
testing,
and
the
degree
of
hydrogeologic
investigation
by
Town
&
Country
was
well
within
reason.
(Hrg.
Tr.
Volume 38,
Page
50).
He
pointed
out
that
there
is
no
question
that
the
Dolomite
is
an
aquifer,
and
he
observed
that
the geology
at
the
site
is
well
known
and
that
the
layering of the
various
geologic strata is
quite consistent.
(I-Irg.
Tr.
Volume 3B,
Pages
54,
56).
Professor
Daniel
noted
that
the
inward
gradient
at
this
site
provides
for
extraordinarily effective
containment.
(Hrg.
Tr.
Volume 38,
Page
58).
in
addition,
he
noted
that
the pen-neability
and
thickness of the proposed
engineered
clay
liner exceed
minimums.
(Hrg. Ti. Volume
3B,
Page
59).
He saw
no
problems
in
building
the
liner.
He
noted that the
12
foot thick
sidewalls add an
additional
margin of safety
and
observed
that the site can easily be monitored.
(Hrg. Tr. Volume 3B,
Page 64).
Professor Daniel observed that
he had enjoyed the testimony prior to
his
regarding
the
differences
in
permeability
within
the
Bedrock,
hut
that
those
differences
in
permeability
are
all
irrelevant
to
the
safety of the
landfill.
(Hrg.
l’r.
Volume
3B,
Page
72).
lIe
noted
that
whether
the
flow
in
the
Bedrock
is
at
the
rate
measured
by
the
Applicant
or
some
faster
rate
really
doesn’t
matter,
and
that
with
-the
strong
inward
gradient
higher
permeability and
faster flow would
actually
be
better
because this
faster
advective
flow inward
would
overcome
outward
diffusion.
(Hrg.
I’r.
Volume
3B,
Page
73).
In
this
regard,
he
noted
that
the
Applicant
made
an
extraordinarily
conservative
assumption which
bordered
on
absurdity
by
modeling
groundwater
flow away
from
the
landfill
when
the
flow
will,
in
fact,
be
inward.
(Hrg.
Tr.
Volume 38,
Pages
73,
74).
Additionally,
Dr.
Daniel
pointed
out
that
the
Applicant
in
its
model
made
a
number of
other
conservative
assumptions
including
ignoring
the
recompacted
structural
fill
-
56
underneath
the
engineered
clay
liner
even
though
that
fill
would
act
as
a
significant
mitigating
layer.
(Hrg.
Tr.
Volume
38,
Page
-82).
Additionally,
the
Applicant
was
conservative
in
modeling
in
assuming no
advective
velocity through
the composite
liner
when,
in
fact, there would be an
upward velocity from the aquifer.
(Hrg.
Tr. Volume 38,
Page
83).
He also noted
that the Applicant used a
positive diffusion
coefficient for heavy
metals
traveling
through
the
geomembrane
when,
in
fact, heavy
metals
do
not
diffuse
through
a
geomembrane.
(Hrg.
Tr.
Volume
3B,
Page
83).
Lastly,
Professor
Daniel
pointed
out
that
the
Applicant
assumed
that
outward
diffusion
would
take
place
over
100
of the liner when,
in
fact, the design provided for a head of leachate
on only
a
tiny
area ofthe landfill, only
a few percent.
(Hrg.
Tr.
Volume 38,
Page 84).
When asked
whether
in
his expert opinion the proposed facility satisfied criterion
ii, Professor Daniel stated,
“Well, (looked at the site,
I guess,
trying to find reasons why
I
might say
that
I
felt
it was
not safe, and
I couldn’t find any
such reasons.
So,
what
I’ve seen and what
I’ve looked at,
all
of my conclusions have been consistent with meeting
that
criterion.”
(I-hg.
Fr.
Volume
38,
Page 92).
2.
The
County’s
Arguments Regarding The
Evidence On Criterion
ii Are
Unsupported
By The
Evidence
And Show
A Lack
01 Understanding
Of
the Facts
a.
The
Appliant
Did
Not
Mischaracterize
The
Bedrock
The
County’s entire argument
is an attempt
to place
the
unique facts of this case
into
the
framework
of
the
Board’s
decision
in
PCB
03-31.
Therefore,
the
County
continuously
argues
that Town
&
Country
has
continued
to
do
this
wrong or that
wrong
referring
to
specific
criticisms
of
the
evidence
of
the
previous
hearing
found
in
the
Board’s decision in
PCB 03-31.
The County continues to criticize
Town & Country
for not acknowledging that the
57
Bedrock
is
an
aquifer.
The
basis
for
this
argument
is
that
some
of
the
Applicant’s
witnesses testified that the
lower Bedrock behaved, at times,
like
an aquitard,
The
County’s
argument
misses
the
entire
point
of
Mr.
Drommerhausen’s
presentation.
The
concepts
of aquifer
and
aquitard
are
not
the
extreme
ends
of
a
continuum.
Rather, everything is either an aquifer or an aquitard, and,
at that point where
those
designations
meet,
(permeabilities
in
the
range
of
I
x
I 0-~to
I
x
10-5)
the
distinctions
are
not
particularly
clear.
More
importantly,
at
that
point
labels
are
not
important when actual
permeability
values
are
available.
Mr.
Drommerhausen was well
aware
before
his
testimony
of
the
controversy
regarding
Envirogen’s
previous
characterization
of
the
Bedrock.
In
his
direct
testimony,
he
attempted
to
put
that
controversy
into perspective:
“This hopefully will clarify the debate over the Silurian Dolomite
Aquifer. As
we mentioned earlier, Freeze and Cherrie say that an
aquifer has a hydraulic conductivity of
I 0-~
centimeters per
second or greater.
An aquitard has
a hydraulic conductivity
10-s
centimeters per second or less, either one or the other, and
that’s
where
we fall.
At
our site,
the weathered
rock
is
10-4 centimeters
per second,
and
the competent Dolomite
is
10-s centimeters per
second.
You can see why there are
so
many opinions.
Nothing
is
right or wrong.
We are falling on the boundary,
this
rough boundary.
and
I
want to point out that this
is where most
of’ the confision came
from.
((-Erg.
‘Fr.
Volume
18,
Page
118).
As
a
result,
Mr.
Drommerhausen
concluded
that
a
geologic
unit
can
be
both
an
aquifer and an
aquitard depending on how it performs
(Hrg. Tr.
Volume 28.
Page
70).
In
terms
of
the
hydrogeologic
performance
of
the
Dolomite,
there
is
no
disagreement between
the experts
for the various
parties that permeability decreases
with
depth.
Even
Waste
Management’s
geologist,
Stuart
Cravens,
acknowledged
that
after
you
go
about
10
feet
below
the
top
of the
Bedrock,
measured
permeability
decreases
58
significantly.
(Hrg.
Tr.
Volume
4A.
Page
128).
This
is
significant because
it
parallels
almost
exactly
Mr.
Drommerhausen’s
testimony
regarding
where
he
found
a
break
in
permeability
(9
feet below
Bedrock
surface).
On behalf of Waste
Management,
Stuart
Cravens
drilled
a few wells
around
the perimeter of the proposed facility
and
conducted
his
own
tests.
Regardless
of Mr.
Cravens’
opinions
regarding
the
quality
of Town
&
Country’s
work,
the
data
generated
in
Mr.
Craveiis’
investigation
is,
according
to
Professor
Daniel, consistent with
Town
&
Country’s
data, and
actually compliments
the
Application.
(Hrg. Tr.
Volume SA, Page
126).
In addition
to
the
local
variability of the Dolomite aquifer, regional
studies,
such
as
that
by
Csallany
and
Walton,
demonstrate
that
the
productivity
of
the
aquifer
regionally decreases as we move
from east to
west.
(Hrg. Tr.
Volume
18,
Page
88).
Mr.
Drommerhausen
pointed
out
that
we
are
toward
the
western
portion
of
the
Dolomite
aquifer as
evidenced
by
the
increasing
amount
of Pennsylvanian
Shale
deposits
found
intermingled
with the
Dolomite.
(1-Erg.
Tr. Volume
1 C,
Page 50).
Based
upon
the
site specific
permeability
findings
by
both
Town
&
Country
and
Mr.
Cravens,
modeling the
upper
10
feet of the
Dolomite
as the aquifer seems
more
than
appropriate.
Additionally,
modeling
the aquifer
in
this
way
turns
out
to
be
the
most
conservative
approach.
Mr.
Drommerhausen
explained that
modeling the aquifer as only
being
10
feet
thick
for purposes of the groundwater
impact assessment
means
that
there
will
he
less
water
to
dilute
the
theoretical contaminants released
from the
facility
in
the
model
run.
(Hrg.
Tr.
Volume
2B,
Page
42).
Accordingly,
this
is
a
more conservative
way
to
model
the aquifer.
Mr. Drommerhausen confirmed this
fact
by
also
modeling the
aquifer
as
being
50
feet
thick
in
a
sensitivity
analysis
reported
in
the
Application.
59
(Appendix
P-S of Application).
The
Board
here
needs
to
distinguish
between
characterization
and
modeling.
While
Mr.
Drommerhausen
readily
admitted
that
he
would
characterize
the
entire
Dolomite as an
aquifer in
order to
be conservative
and to directly address issues raised by
the PCB in
its previous decision, his
modeling of only the
upper
10 feet as the aquifer is
not
inconsistent
with that characterization.
(I-Irg.
Tr.
Volume
IC,
Page
12).
In fact,
in
a
public
comment
received
after
the
2002
siting
hearings,
Joan
Underwood,
the
hydrogeologist
working
for
Waste
Management
on
the
proposed
expansion
of
their
nearby facility, indicated that
modeling the uppermost aquifer as
being only
10 feet thick
is,
in
fact, conservative and an JEPA approved method ofmodeling.
(PCB 03-31, C2276-
C2282).
The
County,
at
Page
34
of their
Briet~mentions
that
the
geometric
mean
of
conductivity
used
in
the
groundwater
impact
assessment
by
Town &
Country
is
almost
500
times
lower
than
the highest
measured
hydraulic
conductivity
in
the
Bedrock,
and
cites to
Volume
2A,
Page
115 of the Hearing
Transcript.
Volume
2A of the
Transcript
ends at
Page
113,
so
the reference doesn’t exist.
Regardless, adjusting
the
model
for the
highest permeability
value found anywhere
in the Bedrock should
be no
problem because
the
predicted
contaminant
concentrations
at
the
required
point
of compliance
in
the
baseline
model
are
10.000
times
lower
than
the
maximum
allowable
concentrations.
(Hrg.
‘Fr.
Volume
2A.
Page
64).
Although
the
County
is
factually incorrect about Town
&
Country mischaracterizing the permeability
in the
Bedrock
and
also
about the effect of
any
such
miseharacterization,
the
last
word
on
the
subject
was
provided
by
Professor
Daniel,
who pointed
out
that
the County’s
concerns
about permeability
in
the Bedrock
60
would
be of far
more interest
if the
landfill
were
not
an
inward
gradient
landfill.
(1-hg.
Tr.
Volume 5A,
Page
125).
The
County
next
argues
that
Town
&
Country
has
underestimated
the
permeability
of the
competent
Bedrock.
They
point
out
that
some
of the
competent
Bedrock
has
high
permeability,
and
that
this
Bedrock
is
improperly
classified
by
Mr.
Drommerhausen
as
weathered
Bedrock
thereby
skewing
the
permeability
of what
Mr.
Drommerhausen
classifies
as
the
competent
Bedrock
downward.
This
argument
fundamentally
misunderstands the testimony.
Mr.
Drommerhausen testified that because
it
is
universally
agreed
that
permeability
in
the
Dolomite
decreases
with
depth
and
because site specific
data indicated a clear break in permeabilities at approximately
9 feet
below
the
Bedrock surface,
he decided, to
be
conservative,
to
include
all
Bedrock within
the
upper
9
feet
in
the
hydrogeologically
weathered
category
regardless of whether
the
rock
cores
showed
that
it
was
physically
weathered.
(Hrg.
Tr.
Volume
2A.
Page
96.
Volume
213.
Page
50).
Mr.
Cravens’
testimony
that
he
observed
a
rapid
decrease
in
permeability
below
the
upper
10
feet
of
Bedrock
in
his
own
wells
is
important
confirmation here.
While
Professor
Daniel
repeatedly testified that
this entire
debate
is
irrelevant because,
with
an
inward
gradient
higher,
Bedrock permeabilities only
serve
to
increase the driving force of groundwater into the landfill.
Mr.
Drommcrhausen,
in
response
to
being challenged on
classifying the
upper
9
(èet of the
Bedrock as hydrogeologically
weathered,
performed an
additional
sensitivity
analysis
where
lie
used
a
permeability
value
averaging
all
of the
Bedrock
permeability
data.
This
model
passed easily.
(1-kg.
Tr.
Volume
2A,
Page
85.
Applicant’s Exhibit #14,
C4ISA-C418A).
The
County’s argument also ignores the
fact that dividing
the
Dolomite
61
aquifer
into
weathered
and
unweathered
zones
based
upon
the
actual
hydraulic
performance
of
those
zones
as
derived
from
site
specific
data
is
actually
more
conservative
because
it
increases
groundwater
velocities
in
that
portion
of the
aquifer
closest to the base ofthe landfill.
The County
next argues
that Town &
Country
failed
to
account for fracture
flow
in
the
Bedrock.
This
argument
has
no
merit.
Based
solelyon
the
testimony
of
its
engineer,
Jeffrey
Schuh,
the
County
asserts
that
Town
&
Country
did
not
test
for
secondary
porosity.
Professor
Schuh,
in
his
direct
examination,
opined
that
only
secondary
porosity
is
relevant
in
the groundwater impact assessment,
and
that
Town
&
Country’s
failure
to
test
for
secondary
porosity
was
a
major flaw
in
the
Application.
However,
on
cross-examination,
Mr.
Schuh
was
exposed.
When
confronted
with
the
truth,
he
acknowledged
that
secondary
porosity
can’t
be
measured,
that
he
has
never
measured secondary
porosity,
that
Patrick Engineering,
for
whom
he
is an
executive, has
never
measured
secondary
porosity,
and
that
there
is
no
test
to
measure
secondary
porosity.
(I-kg.
Tr.
Volume 43,
Page
30.
31).
Accordingly.
the
‘~majorflaw”
identi lied
by
Mr.
Sehuh
is
Town
&
Country’s
failure
to
do
the
impossible.
Such
a
criticism
evidences
a shocking lack of either knowledge or objectivity.
Mr.
Schuh
also acknowledged
that
in
an
inward
gradient
system
where
diffusion
is the only transport mechanism
for the migration ofcontaminants away
from
the
landfill.
p~jj~a~v
porosity
is
indced
relevant
because
contaminants
also
diffuse
through
the
rock
matrix.
(1-kg. Tr.
Volume 4B.
Page 32).
Mr.
Drommerhausen
confirmed
that there
is
no
test
to
measure secondary
porosity.
He
also
pointed
out
that
in
his
groundwater
impact
assessment,
he
used
an
effective
porosity of
.07,
a
value
approximately
3
times
more
62
conservative than the value of .20 used by
Waste Management in the groundwater impact
assessment
performed
in
connection with
the
siting
Application
for
expansion of their
nearby facility.
(Hrg.
Tr.
Volume
SA, Pages 29-31).
The County
erroneously
suggests
that
Town
&
Country’s
permeability
tests
did
not take into
consideration the
secondary flow characteristics of the
Bedrock represented
by
fractures.
Specifically,
the County argues
that Town
&
Country
failed to
characterize
the
fractures
in
the
lower
Bedrock.
That
vague
concept
is
irrelevant
since
what
is
important
is
assessing
the
performance
of the
entire
fractured
Bedrock
System.
Dr.
Yarbrough,
in
his
reports,
pointed
out
that
Packer
tests
do
precisely
that
in
that
they
“illustrate
the
conductivity
of bedding
plains
and/or
voids.”
(C1598).
To
prove
the
point,
consider the
fact that
Envirogen tested
the permeability
of intact
Dolomite
rock
samples
in
the laboratory
and found the
same
to
be
3.5 time
10-8 centimeters
per
second.
(llrg.
Tr.
Volume
lB.
Page
108).
Since
the
permeabilities
obtained
from
field
scale
measurements
at
the
site are approximately
3
orders of magnitude higher,
one
can
easily
see that the
fractures
in
the Dolomite
increased
the permeability of that
unit
by
a
factor
of
at
least
1,000.
The County
then
points
out
that
the
measured permeability
in
the
angle borings
which
were
intended to
encounter and assess the
affect of vertical
fractures is higher than
in
the
nearby
conventional
borings.
(County
Brief
at
Page
38).
This
arguments
represents nothing more than data manipulation
by
Mr.
Schuh.
who chose to use only
the
values derived from
the
2 Packer tests
out of
10
in the angle borings
which
had
a
take.”
Not
only
do
2
tests
represent
a
statistically
insignificant
sample,
but
Mr.
Schuh
also
ignores
the
big
picture.
100
of the
lineal
extent of the angle borings
was Packer tested,
63
and
in
8
of those
intervals the
formation
absorbed
no
water
whatsoever.
Accordingly,
Mr.
Drommerhausen’s conclusion that the permeability tests
in the angle borings showed
no
increase
in
permeability
over
other permeability
tests
is
more persuasive.
(FIrg.
Tr.
Volume
2B, Page
17).
Lastly,
the County
argues that
Town &
Country
did
not
model
the Bedrock
as
a
fractured
system.
With an inward gradient, the
only relevant
flow is diffusion,
and with
a
diffusion
model
fractures have
no
effect.
(Hrg.
Tr.
Volume
5A,
Page
66).
Although the
inward
gradient
at the
site has
not
been
challenged by
any
of the
Objectors,
Town
&
Country,
nonetheless,
took
what
Dr.
Daniel
characterized
as
the absurdly
conservative
step
of
modeling
for
advective
flow.
Even
with
advective
flow,
however,
Mr.
Drommerhausen used
the appropriate
parameters
in
the groundwater
impact
model.
1-fe
testified
that
he
is
familiar
with
all
modeling
programs
used
by
the
JEPA
(Hrg.
Tr.
Volume
lB,
Page
81).
1-Ic
did,
in
fact,
model
for
advective
flow
to
the
point
of
attenuation.
(I-kg.
Tr.
Volume
IC,
Page
37,
Volume
2A,
Page
46).
He
indicated.
however,
that
the
instructions
for Migrate,
the model
which
he
used, recommend
that
for
low
flow
conditions,
as
exist
at
the
proposed
site,
the
system
should
be
modeled
as
isotropic.
(Hrg.
Tr. Volume 2A,
Page 48).
Mr.
Drommerhausen subsequently
introduced
a portion of the Users’
Guide for the Migrate flow model
to verify his point.
(Applicant’s
Exhibit #26, C471).
The
County
next
argues
that
Town
&
Country
failed
to
account
(hr the
vertical
flow
in
the
Bedrock.
All of Town &
Country’s experts
admitted
that
in
its
natural
state,
there
is
a very
slight
downward vertical gradient
in
the
Dolomite.
Mr.
Drommerhauscn
characterizes
this
gradient
as so
slight
that
it
is
at
the
limit of our ability
to
accurately
64
measure
it.
(Hrg.
Tr.
Volume
213,
Page
50).
He also opined that this downward gradient
will
be
reversed
by
construction of the
landfill.
(Hrg.
Tr.
Volume
2A,
page
96).
He
verified
this
by
performing
water
budget
calculations
which
proved
that
the
landfill,
itself,
would
curt
off recharge
underneath
thereby
reversing
the
very
slight
downward
gradient.
(Hrg.
Tr.
Volume
2A,
Page
97).
Statements
in
the
County
Brief
that
Mr.
Dromnierhausen failed
to provide calculations of the
vertical gradient and
failed
to
show
that
the downward vertical flow will become
upward flow after landfill construction
are,
therefore,
simply not
correct.
(County Brief, Page 27).
Mr.
Schuh
took
issue
with
Mr.
Drommerhausen’s
conclusions
and
essentially
opined
that
in
his
mind
the data was
insufficient
to
show that
the
existing
downward
vertical
flow in
the
Dolomite
would
be
reversed.
Professor
Daniel
explicitly
disagreed
with
Mr.
Schuh.
(Hrg.
Tr.
Volume 5A,
Page
128).
To
prove
his point, Professor
Daniel
compared
post-construction
flow
into the
landfill
with
flow
underneath,
an
exercise
he
called
a
“trivial
calculation.”
(Hrg.
Tr.
Volume
SA.
Page
133).
1-Ic
went
through
this
calculation
step
by step
in his testimony
and
pointed out that
the
landfill
can trap 35
times
more
water
than
flows underneath,
explaining
that
this
illustrates
why
inward
gradient
landfills are properly
called “hydraulic traps.”
(l-lrg.
Ti.
Volume SA.
Page
130).
He then
performed
an
on
the
fly
sensitivity
analysis of his
own
calculations
showing
that
if
he
increased
the
thickness
of the
aquifer
to
30
feet
(a
distance
that
a
contaminant
particle
could
traverse
through
diffusion
in
500
to
1,000
years),
and
even
if
he
increased
permeability
by
an
order of magnitude, there
is
still
in
adequate
margin of safety.
(I-kg.
‘Fr.
Volume SA,
Page
128-133).
Despite the
foregoing and
Dr.
Daniel’s testimony
that downward vertical
flow
is
65
impossible
in
an
inward
gradient
condition,
Town &
Country
did
model
for advective
downward flow through
the
liner.
When
challenged
on
whether
the
Darcy
velocity
of
.008 which he
used for this parameter in his model was appropriate, Mr. Drommerhausen
correctly pointed out that it was quite conservative since,
in reality, this velocity
would be
a negative number.
(Hrg. Tr. Volume
2A, Page
52).
The County’s
unsubstantiated complaint that Town & Country did
not account
for
vertical
flow in
the Dolomite
propagates
itself to
two
additional
arguments.
First,
the
County
notes
that
the proposed
groundwater
monitoring
well
locations
will not
pick
up
downward flow of contaminants
in
the
Dolomite.
This
argument
is
profoundly
wrong.
First of all
the evidence
is overwhelming that the only downward
flow after construction
of the
landtill
will
be
through diffusion,
Professor
Daniel testified
that
it would
take a
contaminant
particle
between
500
and
1,000
years
to
diffuse
downward
even
30
feet.
Secondly,
the
argument
shows
a
complete
lack
of
understanding
of
the
purpose
of
groundwater monitoring.
One neither
can,
nor should,
monitor
all
potential
contaminant
transport
pathways.
Instead,
one
monitors
the
shortest
and
most
direct
pathway.
Regardless of whether
we call
it weathered
Dolomite or not, there seems
to
he consensus
that the
upper portion of the
Bedrock
is the
most
permeable.
This means
that the velocity
of
groundwater
in
the
upper
portion
of the
Bedrock will
be
the
fastest.
In
fact,
Mr.
Drommerhausen
derived
seepage
velocities
from
site
specific
permeability
testing.
pointing
out
that
while
the groundwater
seepage velocity
immediately
below
the
landfill
is
12
feet
per
year,
the seepage velocity
in
the
lower rock
is
approximately
6
inches
per
year.
(Hrg.
Tr,
Volume
lB.
Pages
125,
126).
Since
the horizontal movement/seepage of
groundwater
in
the
Dolomite
is
not
disputed,
it
is
a
matter of common
sense
that
the
66
earliest possibility
of detection of contaminant
migration would
be
horizontally adjacent
to
the
landfill.
Mr.
Moose
showed
a
slide
in
his
Power
Point
presentation
which
illustrated
the
point,
and
visually demonstrated
why Town &
Country
is
monitoring
the
upper portion of the Dolomite aquifer.
He
explained that
with
diffusive flow, movement
is
in
all
directions
at
approximately
the
same
speed,
and,
therefore,
distance
becomes
essential
in
monitoring.
One
needs
to
monitor
where
contamination will
be
seen
first,
and
in this case that
is the weathered zone.
(Hrg.
Tr. Volume 2C,
Page
52-55).
What
is
somewhat
troubling
in
the
County’s
arguments
is
that
they have
taken
some
comments
in
the
Board’s
January
9,
2003
decision
in
PCB
03-31
and
are
attempting
to extend them to
the
point where they
want this
Board
to
become
a technical
reviewer
of the
siting
evidence.
Their
criticism
regarding monitoring
wells
is
a
perfect
example.
The location and
spacing of groundwater monitoring wells
has always been
an
issue
carefully scrutinized
by
the
IEPA
at
the permitting
stage.
Similarly,
the accuracy
and
sensitivity of a groundwater
impact assessment
has always
been
an
issue
left to
the
technical
stall
at
the
IFPA
during
the
permitting
process.
Groundwater
impact
assessments are
not
even
required
for local
siting
approval.
Now
the County
wants the
Board
to
be
a technical
reviewer of matters
heretofore
within
the
sole
province of the
IEPA.
Town
&
Country
is
mindful
of
the
fiict
that
this
Board
in
its
January
9.
2003
decision
found
it
significant
that
the
Applicant
had
no
plan
to
monitor
for
downward
vertical
ulow
of contaminants
in
the
Dolomite.
Whether
or not Town &
Country
agrees
with
that finding, the
Board
should not be
in the
technical
position of having to scrutiniLe
in
every
case the
groundwater
monitoring
program
to
determine
whether
it
is
suitable.
67
Town &
Country
in
this
revised
Application
addressed
the Board’s
concerns
regarding
monitoring by
proving
and explaining
to the
City
in this
Application that there
would be
no
downward
movement
of
contaminants
and
by
explaining
that
the
purpose
of
monitoring is to identify
the shortest, fastest pathway
for migration.
Accordingly, there is
evidence
addressing
the
Board’s
prior
concern,
and
it
becomes
the
job
of
the
local
decision maker, not
this Board, to determine whether
that evidence is persuasive.
Similarly, because the
Board
found in
its January
9,
2003
decision that
there was
no
evidence that
grouting would
work to
prevent downward migration of contaminants,
the imposition by
the City of a condition that visible fractures in the competent Dolomite
be
groutcd
prompts
the
County
once again
to argue
that the
City’s
finding
is against the
manifest
weight of the evidence.
In this
Application,
grouting was
not offered
by
Town
&
Country
as
a
means
to
achieve
additional
protection
of
the
environment.
The
additional
hydrogeologic
investigation
demonstrated
that
grouting
is
not
necessary
because the
inward
gradient
is
completely sufficient
to
prevent downward
migrations
in
the
unlikely event of Liner breach.
(irouting. theretbre,
has nothing to do
with
whether or
not there
is
evidence
that
the facility, as designed,
proposed and
located
will
protect
the
public
health,
safety,
and
welfare.
In
that
context,
grouting
becomes
completely
irrelevant.
While
the
County’s
argument
that
grouting
will
be
ineffective
is
irrelevant,
it
is
also incorrect.
The
fact that there may
not be ASTM standards
for pressure grouting does
not
support
the
conclusion
that
the
grouting
will
be
ineffective.
Since
the
issue
of
‘~cftectiveness” as
discussed
previously
is,
in
this
context,
not
related
to
safety.
effectiveness
can
be assessed only
in
ternis of its
ability to
accomplish the
intended goal.
68
namely
seating of the visible fractures
at the
top of the Bedrock
surface.
Dr.
Yarbrough
did,
in
fact, propose
a standard
ofsorts for this process when he concluded that pressure
grouting
could
be
accomplished
using
a
“hell
for
stout”
approach
(referencing
an
old
Army
Corp
of Engineers’
term
meaning to
do
the maximum
possible
and
then
a
little
extra.)
(C1597).
Frankly,
the
most
significant
thing
about
Dr.
Yarbrough’s
grouting
recommendation in
light of the Applicant’s evidence that
the same
is not
necessary
is that
it tends
to prove his independence.
The
County
feels
so
strongly
that
there
were
insufficient
sensitivity
analyses
in
the groundwater impact assessment that they raised
the argument as a jurisdictional
issue.
Town &
Country
hereby readopts and
realleges
the arguments made
in
the jurisdictional
section
of
this
Brief
where
it
rebutted
Mr.
Schuh’s
testimony
that
there
were
no
sensitivity
analyses
by
pointing
out
that
the
two
Applications
contained
four
different
iterations
of the
groundwater
impact
assessment.
En
addition,
there
is
the
sensitivity
analysis
done
during the
hearings
by
Mr.
Drornmcrhausen to
demonstrate
that
the
point
of the
County’s
and
Waste
Management’s
cross-examination regarding
permeability
in
the Bedrock would
not change the result, and there
is Professor
Daniel’s
flow calculation
done during
his rebuttal
testimony.
Aside
from the
fact that
none of this
is
required at a
local
siting hearing and that the County is once again asking the
Board
to assume
the role
of the
IEPA at the
permitting
stage, the
final word
again belongs
to
Professor
Daniel who
stated
that
with
all
due
respect
to
Mr.
Schuh’s
criticisms,
one
needs
to
know
when
~henough
is enough.” (Hrg. Tr.
Volume 5A. Page
132).
3.
The Opposition Witnesses Were Not
Credible
Stuart
Cravens,
a
licensed
geologist
in
private
practice,
testified
on
behalf of
69
Waste
Management.
During his
testimony
in
this
hearing and
the
previous
hearing,
he
has, at various times,
called himself a licensed engineer,
a
senior hydrogeologist with the
Illinois
State
Water Survey, a professional
scientist with
the Illinois
State
Water
Survey,
and
a senior professional
scientist with the
Illinois
State
Water Survey although
his only
verifiable title
found
in
the
biography appended
to
one of
his
publications
is
“assistant
hydrologist.”
(FIrg.
Tr.
Volume
4A,
Page
21,
Pages
70-75,
PCB
03-31,
Applicant’s
Exhibit
#23
and
Hrg.
Tr.
Pages
1615,
1616).
In another striking
example of taking
a
statement or fact out of context so as to completely change its
meaning,
the County
notes
that
“Mr.
Cravens
concluded
that
in
his
opinion
the
landfill
is
unsuitable
based
on
the
hydrogeology.”
(County
Brief
at
Page
29).
What
Mr.
Cravens
said
immediately
thereafter completely
changes the meaning:
“Flow that statement relates over to the engineering,
I can’t go
there because
I
am not qualified as
an engineer.
That isjust
the
personal
opinion that
I cannot support with engineering
or any
other evidence.”
(I-kg.
Tr.
Volume 4A.
Page 91).
In
fact. Mr.
Cravens
went
out of
his
way
to
emphasize
his
lack of credentials
to
opine regarding landfills.
Some of his other statements arc
illustrative:
“I’m not an
expert in
landfills.
I
will
not opine on
what will
happen with the
landfill
in place at that location.
I can only
comment
on the
natural hydrogeology out there and will
not
comment on engineering or removal of materials. of implacc-
ment of materials or leachatc systems.
I will
not.
I
agree
with Darcy’s
Law, high
head to low head.
How
that affects
a
landfill, or any landfill design.
I am
not an expert in
this
area.
...
(am
not qualified as you
have pointed
out so well,
to deal with
landfill design or what
a landfill
design
~-
how that
will interact with hydrogeology.”
(Hrg.
Tr.
Volume 4A,
Pages 87,93).
70
Mr.
Cravens
supervised
the
drilling
and
testing
of
5
wells
surrounding
the
proposed facility.
The
lack of quality and
precision
in that work
stands
in
sharp contrast
to
Town &
Country’s investigative
efforts.
The
boring
logs
from the
Cravens’
wells
do
not
contain
geologic
classifications.
(Hrg.
Tr.
Volume 48,
Page
12).
Additionally,
the
individual
who
described the
materials
recovered
on
behalf of Mr.
Cravens
was
not
a
licensed
geologist.
(Hrg.
Tr.
Volume
4B,
Page
19).
Elevations
in
Cravens’
boring logs
appear
to
be
rounded
off
to
the
nearest
1
foot
while
Town
&
Country’s
logs
reflect
elevations accurate to within 1JlO°~
of a
foot.
(Hrg. Tr.
Volume 4B,
Page
15,
16).
Every
one
of Cravens’
deep borings
has
I
or
2
feet
of missing
data
at the
critical
weathered
Bedrock competent Bedrock interface.
(Hrg. Tr,
Volume 4B,
Page 29)
This
missing data
problem
is
propagated
in
his
slug
test
computations,
all
of which
miscalculate
the
elevation
at the
top
of the
zone
tested.
Cravens
acknowledged
these errors
on
cross-
examination and agreed that
it
is
appropriate to
consider his slug test rcsults as measuring
both
the
combination
of weathered
Bedrock
and
competent
Bedrock,
a
combination
where
the
higher
condLictivitics
expected
near
the
Bedrock
surface
would
tend
to
dominate the
overall
result.
(FIrg.
Tr.
Volume 48.
Page
22).
With
regard
to
his
Packer
tests.
2
of them
fttiled
because
of leakage
around
the
seal
and
casing,
and
1
of them
actually showed
negative
flow.
(I-kg.
Tr.
Volume 4A.
Pages
131,
132,
Volume 40,
Page
6).
Mr.
Cravcns
was
critical
regarding Town
&
Country’s
failurc
to
rim
geophysical
tests
in
its
borings
comparable
to
the
geophysical
tests
he ran
in
his borings.
Curiously,
however.
Mr.
Cravens
admitted
that
he
didn’t
understand
the
results
of
most
of
the
geophysical
tests
run
in
his
borings.
(Hrg.
‘Fr.
Volume
4A,
Pages
12,121).
In
71
considering
the
criticism
regarding
the
lack
of
geophysical
testing,
Professor
Daniel
noted
that
the
data
in
the
Town
&
Country
Application
is
like
the cake
and
dowahole
geophysics is like the sprinkles
on the icing.
(Hrg. Tr.
Volume 5A,
Page
127).
Mr.
Schuh
offered
among
his
major criticisms the fact that
only
.6
of the rock
samples
recovered
by
Town
&
Country
were
lab tested for primary porosity.
On cross-
examination,
however,
Mr. Schuh acknowledged that the number of samples tested for
primary porosity was
sufficient and then opined that his earlier point that
only .6
of the
samples
had
been
tested
was
really
only
information
and
not
a
criticism.
(Hrg.
Tr.
Volume 40,
Pages
124,
125, Volume
4C,
Page 34).
This statements strains credulity.
If
the amount of rock
tested to
ascertain primary porosity
was sufficient
for that
purpose,
the
only
value
in advising the
City Council
that this amount
represented
only
.6
of the
total rock cored is to
leave the false
impression that not enough testing was done.
Mr.
Schuh
was
Iirther
unable
to
answer
questions
about
the
hydrogeologic
similarities
revealed
in
the
Waste Management
Application
which
had
been
reviewed on
hehalloithe County by Patrick Engineering.
i-Ic
was
also
unable
to
answer
questions
regarding
his
subordinate.
Steve
VanHook’s.
previous
review
and
testimony
regarding
the
first
Tow-n
&
Country
Application.
Mr.
Schuh
also had
a
Power
Point
presentation,
and
Page
II
of that
presentation
suggested that Town &
Country’s
groundwater impact assessment failed.
(C888).
When
first questioned about
the point on cross-examination, Mr.
Schuh,
in answer to
a question
of whether the “groundwater impact evaluation fails,” some constituents answered, “yes.”
(Hrg.
Tr.
Volume
4C,
Page
20).
After
further
cross-examination
indicating
that
the
72
groundwater
impact
evaluation did
not
fail.
Mr.
Schuh
was
asked
about
his
previous
testimony that the model
failed, and he
answered,
“I
don’t recall that.”
(I-hg. Tr.
Volume
4C,Page 26).
Most
troubling
of
all,
however,
is
Mr.
Schuh’ s
professed
lack
of knowledge
regarding
Applicant’s
Exhibit
#14,
the
sensitivity
analysis
prepared
by
Mr.
Drommerhausen during the hearings to
simulate a hypothetical
worst case scenario which
arose
in
his
cross-examination.
While
Mr.
Schuh
acknowledged
the
existence of
the
Exhibit,
he
stated,
“I
knew
that
they handed it
out.
I
don’t
remember
what
the values
were
for porosity.”
When
asked
if he
looked
at the
Exhibit,
he
stated, “There
are
two
pieces
of paper
that
came
out.
I
saw
the
two
pieces of paper.
I
didn’t
look
at
the
numbers.”
When
asked
if he
reviewed
the analysis,
he
stated,
“I
did
not
review
that
analysis.”
(1-kg.
Tr.
Volume 4C,
Pages 90, 91).
That testimony stands
in
stark
contrast to
the
statement
of
the
County
Attorney,
Rick
Porter,
during
argument
regarding
the
admission of Applicant’s
Exhibit
#14.
Referring to
Mr.
Schuh
who
was
seated next
to
him
at the
time
Mr.
Porter said.
“The engineer to
my
left has reviewed
the document
and
does
not
believe
it,
in
any
way,
addresses
the
problems that
have
been
pointed
out
in
cross-examination.”
(Hrg.
Tr.
Volume
3A,
Page
117).
Mr.
Schuh’s
statement
is
inconsistent with
Mr.
Porter’s.
Someone’s
credibility is undermined.
4.
Siting A
Landfill In A
Bedrock
Aquifer Is
Not
Inherently Unsafe
While
the County never
squarely makes the statement, they argue all
around
the
inference
that
a
Bedrock aquifer
is inherently
an
unsuitable
location
for a
landfill.
They
also
imply
that
the
Board’s prior
decision
in
the
first
case supports this
inference.
It
is
undeniable that the proposed facility’s proximity to the aquifer was
a cause ofconcern
to
73
this Board
in
its January 9, 2003 decision.
However, decisions regarding the inherent
suitability
or
unsuitability of certain
geologic
environments
are
outside the
province of
the Board’s responsibility,
and,
accordingly Town &
Country
does not
read
the Board’s
previous
decision
a
finding
on
what
is
ultimately
a
regulatory
and
legislative
issue.
Instead, Town & Country
understands the Board’s decision as a mandate to more clearly
and
persuasively explain
how
siting
in
an
aquifer can protect
the public
health,
safety,
and
welfare.
The
County’s
inference
that
siting in an
aquifer
is
inherently unsafe
is
an
adoption of the
admittedly
unqualified
personal opinion of Stuart
Cravens.
Mr.
Cravens
may or may
not
understand
the hydrogeologic setting at
the site,
but to
the extent
that he
admits
having
no
knowledge about
how a
highly
engineered
facility
will
interact with
that
hydrogeologic
setting,
his
opinions
about
suitability
have
no
value and
are
nothing
more than expressions of personal fear.
The
County
plays on
and
exploits that
fear
by
citing Mr.
Cravens as the authority
for its statement that “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
ol’ arid
within
an
aquifer
is
a poor design that presents
a
significant risk
to
the public
health, safety
and
welfare.”
(County
Brief at Page 41).
Aside
from the fact that Mr.
Cravcns didn’t say this
and that
he admitted that
he
isn’t qualified
to say this,
the County has to
know
that
this
is
not
the
law,
and
that
for the
PCB
to
draw
such a
conclusion
is
outside
the
scope of the
siting review process.
In
yet
another
statement
taken
out
of
context,
the
County
continues
its
fear
mongering
by
stating
any
release
or leak
from
a landfill
built
on
the aquifer,
“would
go
right
into
the
aquifer that
is
utilized”
with
a
citation
that
references
the
testimony
of
74
Steven VanHook at
the
first siting
hearing.
(County
Brief,
Page
41).
While
it
had
been
Town &
Country’s
intention not to
reargue evidence
from
the
first hearing, the
County’s
quoting a
witness
from
that
heating
out of context
demands a response.
Mr.
Vani-look
also
testified
at the
first
hearing
that
the proposed liner meets
State
EPA
requirements,
and
the system
is,
over
designed
to
account
for the
geologic
conditions.
(PCB
03-31,
Siting
Hearing
Transcipt
1216).
He
acknowledged
that
based
on
the
hydrogeologic
investigation at the site, there
is a substantial inward gradient and
felt that if the landfill
is
operated correctly, the
inward
gradient would protect the surrounding area from leachate.
He noted
that an
inward gradient
effectively prevents
leachate
migration from
a
landfill.
(PCB
03-31,
Siting Hearing Transcript
1227,
1236-38).
Mr.
VanHook concluded
that the
hydraulic
head
of the uppermost aquifer
was
so
high
that
the
possibility
of the
inward
gradient at the site
being
lost or reversed and
flow
going outward from
the landfill
is
not
realistic, even in
a drought.
(PCB 03-3!, Siting
Hearing Transcript
1261).
Devin
Moose,
with
extensive experience
in
landfill
design
and
siting
throughout
the State of Illinois.
noted that other landfill
in
Illinois which
have been
permitted and are
operating,
have
more
permeable
Bedrock
aquifers
underneath
than
the
proposed facility
and
mentioned
the
Lee County
Landfill
as
a
specific
example.
(l-lrg.
Tr.
Volume
3B,
Page
13).
Professor
Daniel, who reviewed the
Board’s decision of January
9,2003.
also
inferred
from
that
decision that
the
Board
was moving
in
the direction
of saying
that
a
landfill
should
not be
placed
on
or in an
aquifer.
With
all
of his vast personal knowledge
on
the subject, he
concluded
that
the
Board
would
be
wrong
in
saying
that,
because
in
fact
a
landfill can
be
placed
on
or
in
an
aquifer
in
a
completely
safe
way.
(kg.
Tr.
Volume
313.
Page
89).
He
reiterated in
his
rebuttal
testimony
that
this particular landfill
75
can be
constructed and
operated
safely
in
a fractured
Bedrock aquifer.
(Hrg.
Tr.
Volume
SA, Page
136).
5.
The City’s
Findin2s Were Thorou2h And
Well Reasoned
The
31
pages
of Findings
And Conclusions
adopted
by
the
City
Council
on
August
18,
2003
are
exceptionally
thorough
with
regard
to
its
Findings Of Fact
on
criterion
ii.
The Board
is
asked
to
remember that this
is not
an
exercise
in
reweighing the evidence,
or an
argument
about
whose
evidence was
more
persuasive.
The
issue
for this
Board
is
to
determine
whether
the
City’s
affirmative
decision
on
criterion
ii
was
against
the
manifest weight of the evidence.
In
a case like this where there is conflicting evidence on
both
sides,
a
large
part of the
City
Council’s
function
is
to
weigh
the
credibility of the
competing experts.
While
cases
like
Fairview Area
Citizens
Task
Force
may
very
well
stand
for the
proposition
that
if there
is
any
evidence
to
support
an
affirmative
finding,
that
finding
is
not against the nianifest weight of the evidence, the detailed findings of the
City
Council
make
it
obvious
that
the
hulk of the evidence
here
favored
an
affirmative
decision on
the Application.
It
is
obvious
from
the
fact
that
a
full
20
of the
City’s
Findings
Of
Fact
on
criterion
ii
were
devoted
to
a
summary of the
testimony of Professor
David
Daniel
that
the
City
Council
held
his
testimony in
high regard
and gave
it special
weight.
Ironically.
Professor Daniel’s testimony
is
hardly mentioned
in the County’s
Brief
Professor
Daniel
unequivocally
made
four
points
which
apparently
impressed
the
City
Council.
These
were
that
the
debate
regarding
permeability
of
the
Bedrock
aquifer
was
irrelevant,
because
with
the
strong
inward
gradient
that
exists
at
this
site,
a
higher
permeability
aquifer
would
actually
increase
the
driving
velocity
of
groundwater
inward
thereby
76
tending
to
overcome
diffusion.
Secondly,
Professor
Daniel
was
unequivocal
that
whatever slight downward
flow existed in the
Dolomite now would
be reversed when the
landfill was constructed.
He squarely took
issue
with
Mr.
Schuh
on
this
point
and
even
performed a calculation during his rebuttal
testimony
to demonstrate
mathematically the
large
margin
of safety
that
exists
in
the
Applicant’s
conclusion regarding
the
upward
flow.
Thirdly,
Professor
Daniel
evaluated
the
groundwater
impact
modeling
of
the
Applicant and found it to be extremely conservative in its assumptions.
Lastly. Professor
Daniel
directly
addressed
the
unspoken
issue
which
hovered
like
a
specter
over
these
proceedings, namely
whether an aquifer
is an inherently unsuitable geologic
environment
for
a
landfiu.
He
concluded
that
this
landfill,
as designed,
could
be
constructed
and
operated
in
a
fractured
Bedrock
aquifer so
as
to
protect
the public
health,
safety,
and
welfare.
Given
the
fact that
Professor
Daniel
is
the
Dean of the
College
of Engineering
at
our
State
University
and,
based
upon
his
other
achievements
and
credentials,
and
is
undoubtedly
one
of
the
world’s
Ibremost
experts
in
waste
containment,
it
is
hard!y
surprising that the City Council chose
to value his opinions over those of Mr. Cravens,
who
had
difficulty
remembering
his
own
credentials
and
who
emphasized
in
his
testiniony
that he
knew nothing about how the geologic
environment would
interact with
the
landfill
design.
The
City
Council
noted
in
its
summary
of the
evidence
that
Mr.
Cravens
own
investigative
work was
somewhat
flawed
and
incomplete.
It
is
also
not
surprising that the City Council valued the testimony of Professor
Daniel over that of Mr.
Sehuh,
who
railed
against
the
Applicant
in
his
direct
testimony
for
not
conducting
secondary
porosity
tests,
but
admitted
on
cross-examination that
no
such tests
exist
and
77
that secondary porosity cannot be measured.
After summarizing the evidence, the City Council actually made a specific finding
that Jeffrey
Schuh’s
lack of knowledge regarding the conclusions of employees under his
direct supervision on similar issues undermined his credibility.
The City’s
summary
of the
testimony of Professor
Daniel
is
so
powerful
that
it
merits
being
included in
its entirety
in
this
Brief because
it,
alone,
should
put
an
end
to
the entire County argument on
criterion ii.
“Dr. David
Daniel was called for his opinions by
the applicant.
Dr.
Daniel is
the Dean of the College of Engineering of the
University of Illinois.
He has extensive experience in research
And consulting regarding pollution control facility sites including
Nuclear waste sites and several
federal “superfund” sites.
Dr.
Daniel testified that he had conducted a peer
review of the
hydro-geologic investigation,
the site’s
proposed design and
the
groundwater
impact evaluation.
He opined that the inward gradient
design was “state ofthe art” and
would assure the protection of the
public
safety, health
and welfare and environment.
He testified
that
the construction of the facility, as designed, would be consistent with
the protection of the public health safety
and welfare.
1-Ic
found that the groundwater impact study
was extremely conservative
and
further underscored the
protection which the design of the landlill
would
provide.
He further testified that
the characterization of the
bedrock as an aquifer or an aquitard was not essential
to determine
the safety of the landfill.
Rather the design
included the use of the
inward
gradient assuming and
incorporating
the assumption
that the
bedrock was an aquifer.
Dr.
Daniel further testified
regarding the
use of“double liners”.
He
testified that the use of double liners can
be counter-productive due to
the possibility
ofdamage to
the
liner during the installation of the
secondary liner and further the
lack of proof ofany benefit
to he derived
from a double
liner.
He testified that the use of a double liner was of no
benefit
in the design of the
fhcility.
Addressing the concerns of the
Pollution Control
Board,
in its
decision
regarding the previous
siting application, that the effectiveness of the
inward gradient “is
compromised when the aquifer lies below
the
78
foundation of the landfill”, Dr. Daniel testified
that the proper analysis
required that the
Dolomite be considered in its entirety.
Once that analysis
is
accomplished,
he
said,
the
data
resulting
from
that
analysis
discloses
that
the
permeabilities
of
the
Dolomite
are
high
enough
to
actually
increase
the upward driving
force
of the inward
gradient.
Thus,
there
is
not
issue
regarding downward vertical
migration and
the
issues
raised
by
the Pollution Control Board are not applicable to this site with this design.
Questioned
on the issue ofdownward flow in the Dolomite to which Mr.
Schuh had alluded, Professor Daniel referred to flow calculations which
He had
performed for the site.
Because these calculations were made to
Directly
address the merit of the issues raised
by Schuh,
they incorporated
those
contentions.
Relying
on those
calculations,
Professor Daniels stated
that
the “gradient is
inward even in the
rock,
and the flow is
inward in the
rock.”
Explaining
why
that
result occurred,
Dr. Daniel
referred back
to
the higher pcrmeabilities shown to be present when the dolomite was
considered
in its entirety,
emphasizing that those higher permeabilities
actually increase the upward driving
force of the inward
gradient.”
(C1869,
1870).
In another apparent attempt
to
graft the unique
facts of this case onto
the
findings
of the
Board
in
PCB
03-31,
the County
argues
that
the
City
has improperly
deferred its
decision making
responsibility to
the JEPA
because of the
lack of evidence
presented by
Town & Country.
The City Council
conditioned
its approval
on criterion
ii
on
21
special
conditions,
the majority of which
are
detailed and technical.
ihe
County
complains that
Special
Condition
9
proves that
the
City
believed that
Town
&
Country
didn’t
provide
sufficient
evidence.
That
is
not
a
fair
reading
of Condition
9
given
the
tone
of the
remainder of the
findings.
The
Condition
mandating compliance with
IEPA
permitting
requirements
and
adopting
those as
the City’s
is
merely
boiler-plate,
and
simply
means
that
the
City
prudently
has
decided
that
it
wants
to
be
included,
and
become
the
beneficiary, of any
additional
requirements that
the
IEPA
may
impose at the
permitting
stage.
This
is
really
no
different
than
the
City’s
Special
Condition
21
where
the
City
finds
that
a
double
composite
liner
is
not
required,
but
adds
that
if,
as
a
result
of
79
subsequent
statutory
or regulatory
changes, such
a
liner does
become
required, the
City
will adopt
that requirement as its own.
The County
cites
no
legal
authority
in
support
of its
argument
regarding Special
Condition 9.
For the
foregoing
reasons,
it
is
clear
that
the
City
Council’s decision
was
not
against the manifest weight of the evidence.
B.
The Manifest
Weight of the Evidence
Supports the City’s
Findings Regarding Criterion viii
I. Standard
Of
Review
While
the
County
suggests that
the Board
should
apply
a
tie
novo
standard
to
its
review of criterion viii
because it
involves a question of law (County Briet
p.48), there is
absolutely
no
Board
or
court
precedent
justifying
that
request.
In
fact,
prior
Board
decisions and
Illinois
case law clearly establish
that the correct standard lbr reviewing the
local
government
body’s decision
on
all
statutory criterion,
including
criterion
viii,
is
the
manifest weight of the evidence standard.
See
C
oncerned Adjoining
Owners
s’.
Pollieturn
Control
Board.
288
Ill.
App.
3d
565,
680
N.
Ed.
2d
8/0,
8/8,
223
Ill.
Dcc.
860
(5”
District,
/997,)
citing
Tate
v.
Illinois Pollution Control Board,
188
111.
App.
3d 994,
/022,
/36
Iii.
Dcc.
40/.
544
N.E.
2d
1176
(/989,)
(“the
manifest
weight
of
the
evidence
standard is to be
applied to
each and
every criterion
on review.”)
The
County’s
assertion
that
the
Board
should
change
this
weU-estahlished
standard
is based
upon the
County’s citation of irrelevant case
law and
should be rejected,
just
as
the
Board
rejected the County’s
similar attempt to
argue for a
c/c
novo
standard
in
the
PCB
03-31,
03-33
and
03-35
proceeding.
In
support
of its
assertion,
the County
80
offers two cases,
Fairview Area Citizens
Task Force
v.
Illinois Pollution Control
Board,
198
IlL
App.
3d
541,
552,
555
N.E.
2d
1/78
(3d
Dist.
1990)
and
Land and
Lakes
v.
Illinois
Pollution Control
Board,
319
IlL
App.
3d
41,
743
N.E.
2d
188
193
(3d District,
2000).
Neither
of
these
cases
stands
for
the
proposition
advanced
by
the
County,
however.
In
Fairview,
the
Third
District
appellate
court does
not even mention the c/c
novo
standard.
Rather,
it
upholds
the Board
on
its determination
on
all
reviewed criterion, to
which
review the Board
applied the manifest weight
standard.
See
Fairview,
at
555
N.E.
2d
/ 178
citing
Waste
Management of Illinois,
Inc.
v.
Pollution
Control Board,
/ 60
Ill.
App.
3d.
434,
513
N.E.
2d
592,
1)2
Ill
Dec.
178
(1987)
and
Tate
v.
Pollution
Control
Board,
188111
App.
3d 994,
544 N.E.
2d1176,
1361/1
Dec
401
(7989,~.
Similarly, the appellate court’s decision in
Land and
Lakes
does
not
offer
any
support to change the standard of review that should be applied to Board review of a local
government’s decision on the statutory criterion
in a
landfill
siting case.
Rather.
Land
tint!
Lakes
involved the appropriate standard
for
judicial review of Pollution
Control
Board decisions, where the Board’s decision involves a pure question of law.
In fact, the
court
in
Land and Lakes
reiterated the appropriateness of the Board’s application of the
manifest weight standard: “(A) decision of the
local siting authority with respect to an
applicant’s compliance with the statutory siting criterion will not he disturbed unless the
decision
is against the manifest weight of the evidence.”
Land and Lakes,
743
N.E.2d
188,
at
197,
citing
Concerned Adjoining
Owners
v.
Pollution
Control
Board,
288
Ill.
App.
3d565,
223
IlL
Dec.
860,
680 N.E.
2d810 (1997).
While
the
courts
have
adopted
a
de
nova
standard
when
reviewing
Board
81
decisions that involve pure questions of law, such a standard
is not applicable to Board
review of local
government’s
decision
for good reason.
First, the well-established
legislative
scheme under
Section
39.2
landfill
siting
clearly calls for the decision, on
the
criterion to
be
the
local
government
siting
authority’s,
not the Pollution Control
Board’s.
The Pollution Control
Board’s role
is
merely one of review; the application of a
de novo
standard would change that scheme in
a way that the legislature did not
envision and
that
would
take
control
away
from
the
local
decision
maker.
Second,
a
determination
pursuant to
criterion viii,
even here,
is not purely a question of law, but involves findings
of fact.
Indeed, the City ofKankakee made 31 separate findings of fact on criterion viii
alone.
For the County to suggest that the issue before the Board
is purely one of law is
disingenuous.
Thus, the manifest weight of the evidence standard
clearly should be
applied in
the
Board’s review of the City’s
decision on criterion viii.
In
applying
the manifest
weight standard the
Board
cannot reweigh
the
evidence
or substitute
its
judgment
for that
of the
City.
Instead, the
Board
must
review
the
facts
and rationale
for the
City’s decision and,
if the decision
is supported by the
manikst
weight
of the information
and evidence that
the
City considered, the
Board
should
affirm
the City’s decision on criterion viii.
(“That a different conclusion may be reasonable is
insufficient~ the opposite
conclusion must be clearly evident,
plain
or indisputable.”
(‘oncerned Adfoining
Owners,
itt,
citing
Turlek
v
Pollution
Control Board.
274
IlL
App.
3d244~
249,
2/0
IlL
Dcc826,
653
N.E.
2d /288 (/995)).
The Board’s long history ofapplying the manifest weight standard to criterion
viii
should not be disturbed.
Indeed, since the passage of this local planning criterion, the
Board has applied
the
manifest
weight
standard to this specific criterion in each of the
82
following
cases:
Waste
Hauling
Inc.
v.
Macon
County
Board,
PCB
91-233
(May
7,
1992)
(siting denial affirmed);
Worthen
v.
Village ofRoxana,
PCB 90-137,
September
9,
1993, affIrmed on appeal
at
253
IlL App.
Ed 378,
623 N.E.
2d 1058,
191
IlL
Dec.
468
(5”
Dist.
1993)
(siting
decision
affirmed);
Geneva
v.
Waste
Management
and
County
of
Kane,
PCB 94-58 (July 1,
1994)
(siting decision affirmed);
TOTAL
v.
City ofSalem and
Concerned Owners
v.
City
ofSalem, PCB 96-82 and PCB 96-79 (cons.),
(March
7,
1996)
affirmed
on appeal
at
288
Ill.
App.
3d
565,
680 N.E.
2d
810,
223
III.
Dec.
860
(‘5”
Dist.,
1997)
(siting
decision
affirmed);
Land and
Lakes
v.
Randolph
County,
PCB
99-69
(‘September
21,
2000)
(siting denial affirmed);
Landfill
33
v.
Effingham
County, PC’B
13-
43,
03-52
~‘C’on,s’.)
(February
20,
2003)
(siting denial affirmed);
Waste
Management
of
Illinois,
Inc.
v.
Kane County, PCB 03-104 (June
19,
2003) (siting denial
cu/firmed,).
2. Criterion viii First Requires That A County’s Solid Waste Management Plan
Be
Consistent With The State’s Statutory
Planning Requirements And
Process;
Kankakee
County’s Is
Not
Criterion viii was not an original criterion under Section
39.2. but was added
to
the Act in the late 1980’s, along with a statutory planning process designed to deal with
municipal solid waste.
The
criterion clearly calls for consistency with that process:
If the facility
is to he located in the County where the County Board has adopted a
Solid Waste Management Plan
consistent
with
the planning requirements
oft/ic
Local
Solid
Waste
Disposal Act or the Solid
Waste
Planning
and
Recycling Act.
the facility is consistent with that plan (emphasis added).
415 IL(755/3 9.2(a,) (viii,)
‘Fhe City’s
findings of fact concerning the County Board’s
failure
to follow the
clear mandates of these
legislative enactments find support
in
the
record
(See,
City
Findings). The relevant evidence is set forth at numbered paragraphs
I
-
18
of the
City’s
Findings of Fact concerning criterion viii (City Findings, p. 24
-
27).
In sum, the City has
83
found that the county’s planning process has not been in conformity with the legislative
enactments upon which criterion
viii
is based, the Local
Solid Waste Disposal Act
(“Disposal
Act”),
415 ILCS
10/1.1
et.
seq.,
and the
Solid
Waste Planning
and
Recycling
Act (“SWPRA”),
415
ILL’S
/51
eL
seq.
Each of those Acts envision that local planning
will be done with the collaboration
and
agreement among
the units ofgovernment in the
relevant area,
with
public
participation and comment, as
well as
state
review and
approval for consistency with statutory requirements. See
415
ILCS
10/1.1
and
415
ILL’S
15/2(q) (5,).
See also
85th
Gen, Assembly, S.B. 1616, Record of Debates, June 17, 1988.
In
order
to
ensure
that
such
collaboration
takes
place,
the
SWPRA
sets
forth
a
planning scheme that provides:
(T)hat solid waste planning should be encouraged to take place on
a multi-county,
regional
basis
and
through
inter-governmental cooperation
agreements
whereby
various units of local government within
a region
determine the best methods and
locations
for disposal of solid
waste.
This amendatory Act of 1992
shall
not
he
construed to impact the authority of units o/ local governmenl
in tile siting 0/solid
waste
disposal facilities.
4/S I/A ~
15/2(a,)(S)
Emphasis added.
In order
to ensure that
this planning occurs as the legislature
envisioned,
on
a
regional
basis, through inter-governmental cooperation, the
legislature wisely
set
forth
certain planning requirements.
It required that all counties submit, to the Illinois EPA. a
plan that “shall conform with the waste management hierarchy established as State policy
in subsection (h) of this
Act.”
4/5
ILL’S
15/4~’a,).
Subsection (b) then provides that the
Illinois
EPA
“shall
review
each
county
waste management plan
to ensure consistency
with the requirements of this Act.”
415 JLCS 15/4(k).
Those
requirements
set
forth
a
planning
process
in
which
the
county
has
“primary” but by no means “exclusive” responsibility. Rather, the SWPRA provides that
84
the Solid Waste Management Plan
is to developed every five years and, prior to
its
adoption, the county is required to hold public hearings, provide a regulatory-like review
and comment period, and seek the specific input and participation of “all municipalities
within the county.”
415
iLL’S
l5/S~’a,)~’c,).
Legislative history
is clear that the Solid
Waste Management
Plan that
is referred to
in the SWPRA
is the same plan that
is
referred to in criterion viii.
Importantly, after this local planning process takes place, the
county is required to submit the plan, as well as “any necessary or appropriate revisions”
to
the
Illinois
EPA
for “review
and
comment.”
415
ILL’S
15/5(e).
The
Illinois
EPA’s
review is required “to ensure consistency with the requirements of this Act.”
4/5
iLL’S
IS/4(h).
As the siting authority, the City must first determine the entirety of the criterion
viii
requirement.
Thus,
it
must
first
determine
that
the
plan
is
consistent
with
state
requirements. The siting authority’s finding that the county’s Solid Waste Management
Plan
is not consistent with the statutory planning requirements. as required
in
criterion
viii,
is
not
against
the
manifest
weight
of
the
evidence.
Clearly,
the
amendments
of
October 9, 2001. March
12, 2002, and February
11, 2003 have not been reviewed and
approved
for consistency by the EPA and, moreover, the record facts demonstrate that
these amendments did not follow
the
statutorily prescribed process for the development
of county solid waste plans. The County’s position, that these amendments, particularly
the February Il, 2003 amendment, constitute a “county solid waste plan” that forecloses
any
landfill
but the expansion
of the County’s own Waste Management
landfill,
is
ludicrous and makes a mockery of the carefully crafted legislative scheme concerning
local government waste planning. (“The language of this February
II, 2003 Amendment
85
superseded and
clarified
the previous amendments to the Plan
to make clear
that the
Kanicakee County Plan was to exclude all landfilling except for a possible expansion of
the existing facility in
ourjurisdiction.”
County Brief at p.
52)
Regarding the issue of the county Solid Waste Management Plan’s consistency
with
the
statutory
planning
process,
the
County
offers really
only
two
arguments.
Both
miss
the
mark.
First,
the County
suggests that
since the Mayor of
Kankakee “served on
the intergovernmental task force responsible for drafting the Plan” the plan
is somehow
properly promulgated. (County Brief at. 49).
The County’s suggestion simply ignores
the “consistency”
language of criterion viii, as well
as the
clear language
of the
Disposal
Act and theSWPRA.
Certainly, the Mayor’s service on this taskforce does not make the amendment, or
the
plan
it
is
amending,
“consistent”
with
the
SWPRA
process
or
the
Disposal
Act.
Rather,
given the statutorily proscribed process. the County
is dead
wrong
to
consider its
hastily adopted February
II. 2003 amendment, adopted
in
the wake of the
Board’s
decision in PCB 03-3!. 33 and 35, to be part of the official Solid Waste Management
Plan,
The City’s position
is, and has always been, clear:
the County’s “Plan”
as the
County
portrays
it
(with
its
recent amendments)
is
not
consistent
with
the
SWPRA
and
the
Disposal
Act.
Town and
County would also
argue that,
for purposes of criterion
viii,
a county’s Solid Waste Management Plan
is not cognizable (“consistent”) until
it has
been, as
the
legislature envisioned,
submitted to
the
Illinois EPA and deemed
to he
“consistent” with the statutory planning process.
Obviously,
the
legislature envisioned
a planning process that would take place
every
five
years,
and
would
involve
the
substantive
participation
of
all
local
86
governments,
industries and the public within
the
county.
Only
then would
a county’s
Solid
Waste Management
Plan,
which
attempts
to
extent it’s
influence beyond
into own
jurisdiction
and
into
that
of home
rule
communities,
be
valid.
Given
this
legislatively
proscribed process,
it
is
clear
that
the
legislature
did
not
envision
that
a
county
could
hastily
act,
as
Kankakee
County
has
done,
in
a
manner that
ignores
this
process
and
arrogantly forecloses
any
local government jurisdiction,
other than itself,
from
ever siting
a landfill within its jurisdiction.
In fact, such actions of the county run roughshod over the clear proscription in
the
SWPRA
that
it
“shall
not
be
construed
to
impact
the
authority
of
units
of
local
government
in
the
siting of solid
waste
disposal
facilities.”
415
ILCS
15/2(a)(5).
That
such actions
violate the
legislative
intent
behind the
local
planning
process is
clear.
In
debating the
Solid
Waste
Planning
and
Recycling
Act,
its
potential
impact
on
“home
rule”
was
specifically
discussed.
On
June 28,
1988.
just
prior
to
vote
in
the
Illinois
Senate.
the
then
presiding
officer
Senator
Saviekas
stated:
“..
before
we
close,
on
Senator
Macdonald’s
request
on
the.,
ruling
that
this
bill
provides
a
comprehensive
standard statewide
and
in
so doing does not
affect home
rule units.
It
is
a statewide
plan,
it does not
involve
in
any
way destruction of local
authority.”
83111
Gen.
Assembly. S.B.
1616.
June
17.
1988.
(See
discussion of constitutional implications of county’s actions as
they
apply to
a home rule community. found later in this Brief)
Further,
the
County’s
actions
also
wrongfully
foreclose
meaningful
public
participation
as
well
as
legitimate
business
opportunities,
and
results
in
a
improperly
promulgated
plan which
places the
County
in the position of being
the
sole overseer of a
one-waste
industry
town.
Such
position
also
presents
a
myriad
of other
legal
issues,
87
including a violation
of the
special
legislation
clause of the constitution.
111.
Const.
1970,
Art.
IV,
Section
13.
See
also,
Allen
v.
Woodjield
Chevrolet,
Inc.
332
111.
App.
3d
605,
773
N.E.
2d 1145
(Y’Dist.
20O2~
and
Best
v.
Taylor Machine
Works,
179111
2d 367,
689
N.E.
2d 1057 (1997).
The
second
argument
that
the
County
makes
on
the
point
of
“consistency’
is
equally
wrong.
The County
asserts that
the
City, although
it
is the siting authority
here,
has
“no
authority”
to
examine
how
a
Solid
Waste
Management
Plan
is
created
or
adopted.
It
states
that
the
Board
has
ruled
that
such
inquiries
are
inappropriate
in
a
Section
39.2
siting
appeal.
In support
of this
bold
presumption,
the County
cites prior
Board orders
in a proceeding that
involved
issues
wholly dissimilar to
this
one,
Residents
Against
A
Polluted Environment
v.
County ofLaSalle
and Landcomp
Corp,
PCB
97-139
~Septemher19,
/996; June
/7,
1997~.
As counsel
for the County well
knows, the
factual context before the
Board
in
the
Landcom1,
case
was
entirely
different
than
the
one
before
it
now.
ft
did
not
involve
a
local
government
siting
authority’s
review
of
the consistency of the
plan
under
criterion
viii.
Rather,
the
Landcwnp
case
involved
a
citizens’
challenge
to
the
fundamental
fairness
of
LaSalle
County’s
siting
proceeding.
The
Board
did
not
hold
that
a
siting
authority
could
not
examine the
“consistency”
language of criterion
viii;
rather,
it
simply
refused
to
entertain the
citizens’
fundamental
fairness
claim.
The
Board’s
rationale had
nothing
to
do with
criterion
VII.
ft
simply determined that any
alleged communications
that
might
have
been
made
during
the
planning
process
were
not
wrongful
cx
porte
communications
because
those
contacts
occurred
prior
to
the
filing
of the
application.
Accordingly, the
Board
ruled that the contacts were not appropriate to
the Board’s review
88
of
the fairness
of the
proceeding.
The
Landcomp
case
simply
does
not
stand
for
the
proposition
that
it
is
any
way improper
for a siting
authority,
here
the City,
to
examine
legitimate
issues
related
to
criterion viii,
including
the propriety of the planning
process
and
the Plan’s
consistency with the SWPRA and the
Disposal
Act.
For the County to
cite
this case for the proposition that
“the City
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” is, at best,
misleading.
Rather, the City’s authority to
make determinations
concerning the applicability
of
all
of
the
statutory
criterion
is
absolutely
clear
in
law
(4/5
ILLS
5/39.2~’a,))
and
constitution
(Ill.
Const.
Art.
VII,
Sections
6(a)
and
60)).
The
Board
should
not
be
deceived
by
the County’s obvious attempts to
paint
it otherwise.
It is not the County
who
is
the
siting
authority
in
this
proceeding;
it
is
the
City.
The
Board
and
courts
have
previously
entertained
a
myriad
of
questions
concerning
criterion
viii.
For
example.
where there was no
valid county plan. the courts have nonetheless upheld the city’s ability
to
site
a
landill.
See
ftor;hen
v.
Village
of
Roxcmu,
P( ‘I)
90—137,
September
9.
1993.
Also,
absolute
consistency
with
a
Solid
Waste
Management
Plan
is
not
required.
See
City
~t
Geneva
i’.
Waste
Management
and
County
of
Kane,
PU)
94-58
(July
1,
1994)
(Board
affirms siting
authority’s interpretation of Solid
Waste Management
Plan
despite
challenge from neighhoring jurisdiction.) This principle is especially important when the
county
plan
itself
is
not
consistent
with
the
legislatively
established
and
state mandated
planning process.
As
the
Board
wisely
recognized
in
PCB
03-31,
03-33
and
03-35,
while the
plain
language of criterion
viii
presumes
that
the
solid
waste
management
plan
is
consistent
89
with
the
Solid
Waste Planning
and
Recycling
Act
(SWPRA)
or
the
Local
Solid
Waste
Disposal Act (Disposal Act),
“(O)nly when the plan is consistent with the SWPRA or the
Disposal
Act
will
the Board
assess
whether
the application
is
consistent
with
the plan.”
(PCB 03-3/,
03-33 and 03-3S,
January
9,
2003,
51ip
Opinion
at
Page
29).
Obviously,
that
is the City’s position
in this proceeding as well.
In
the
earlier
City
of
Kankakee
appeal,
the
Board
affirmed
the
City’s
determination
on
criterion viii,
finding appropriate
the
City’s
overall
determination
that
the
application
was
consistent
with
the
County
plan,
but
did
not
address
the
City’s
remaining
arguments.
(“Having
found
that
Town
&
Country’s
siting
application
is
consistent
with
the
County
Plan,
the
Board
need
not
address
Town
&
Country’s
remaining
arguments
regarding the legality
of the
March
12,
2002
and
October
9,
2001
amendments
to the
County
Plan.”
PCB
03-31,
33
and
35,
January
9,2003, slip.
op.
at
p.
30.)
The
County’s
self
proclaimed
death
knell
provision,
however,
was
passed
on
February
II. 2003.
in
the
wake of the
Pollution
Control
Board’s decision
on
the
City of
Kankakee’s
earlier
siting
decision.
Thus,
the
Board
has
not
yet
had
an
opportunity
to
review
the
City’s
determination
of its
non-application.
In
this
proceeding,
the
Board
should
uphold
the
City’s
determination
that
the
Solid
Waste
Management
Plan,
as
recently
amended,
is
not
consistent with
the
relevant
statutory
requirements,
as required
by
Section
39.2(a)(viii)
and,
accordingly,
is
not
applicable.
Certainly,
the controversial
amendnients are
not applicable.
3. The City’s Decision That
Town
And Country’s Application
Is Consistent With
A
Relevant
Local Waste Planning Is Not Against The Manifest Weight
Of The
Evidence And Should
Be Affirmed.
The
City
has
also
found that
the
application
is
consistent
with
the County
Plan,
90
even
as it
has been
most recently
amended.
As
to
whether
that decision
is
against the
manifest weight of the evidence, the County only makes the following arguments:
(1)
The
County’s recent amendment
is
crystal
clear.
It meant to establish the
County’s
“intent that no
new landfills
be
sited in
KanJcakee County, other than
the expansion of the
existing
Waste Management
facility.”
(County
Brief’,
p.
51).
The words
“contiguous” and
“existing” can not be read any
other way;
(2) County approval has been granted for an expansion of Waste Management’s
landfill.
Thus,
despite
the
fact that the Board reversed that approval, the
City’s decision that
“no
other siting or expansion has currently
been
approved
for another site within Kankakee County”
is against the manifest
weight of the
evidence;
(3) County
approval
has
not
been
granted
for
the
applicant’s
Property
Value
Protection Program, Environmental Damage Fund, and Domestic Water Fund.
Thus, despite the fact that the applicant
is going to provide them,
as required
by the City’s plan. the City’s decision
is against the manifest weight of the
evidence because County approval has not been
sought or obtained.
The
(‘aunt;’
P/an
as
recently
timended.
The
County
devotes
almost
a
dozen
pages
to a discussion of the words “contiguous” and
“existing” which only become
relevant
if the Board determines that the County’s recent February II, 2003 amendments
are
“consistent”
with
the
legislative
planning
process.
In
any
event,
Town &
Country
suggests that nothing
is quite as clear as the County would make
it.
The plan, even as
recently amended, does not contain a definition of either of these phrases and they are,
quite commonly, used in different ways dependingon the context.
Indeed, the very word
91
“contiguous”
has a whole body
of law defining it,
and the
Webster ‘s Revised
Unabridged
Dictionary,
1996, defines it not
only as “touching” but
also, “adjacent;
near; neighboring;
adjoining.”
(“The two
halves
of the
paper
did
not
appear
fully
divided.
.
.
but
seemed
contiguous
at
one
of
their
angles.”
--
Sir
Issac
Newton;
SOURCE:
Dictionary.com/contiguous.)
While the
only
person to
testify
on the
issue of the application’s consistency with
the
Solid
Waste
Management Plan
was
Town &
Country’s
witness
Devon
Moose,
the
County’s
briefengages
in excruciating hairsplitting
to
explain away his testimony:
“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
(sic)
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
11,
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
S/tiles
v.
Northesastern
Pharmaceutical
&
Chemical
Co.,
810 P
2d
726,
747 (8”
(ir
1986)
(for purposes of statutory construction. “not inconsistent”
is not the
same as
“consistent).
As a
result,
there was no evidence presented
that the
proposed
facility
was
consistent
with
the
County’s
Plan.
Therefore,
this
Board
should
find that the City’s Council’s decision with respect to
criterion eight
is
against the manifest weight of the evidence.” (County Brief, at. p. 60)
First, the Act does not require that someone testiR’ that “the facility is consistent
with
the plan.”
The
Act requires that the siting authority determine that the application
is
consistent
with
a plan
that
has been
developed consistent
with
the planning requirements
of Illinois
law.
The City
has done
that, and
its decision is
indeed supported
by
the record.
Second, if the County wanted to provide testimony concerning “consistency” or, from its
perspective,
“inconsistency” it could
have
done so.
That it did not
leaves the matter open
to greater interpretation.
Finally, regardless of the Eighth Circuit’s statutory construction
of
federal
law
referenced
above,
it
is
ludicrous
for
the
County
to
ask
the
Board
to
92
conclude
that
Devon
Moose’s
testimony
was
something
other
than
his
opinion
that
criterion
viii had
been met.
Other Siting Approval.
Likewise,
it is ludicrous for the
County to
ask the Board to
conclude
that the
City’s
decision on
criterion viii
is
against the manifest
weight of the
evidence
on
the point that
“no
other siting
or expansion has currently
been approved for
any other site within Kankakee County.”
The County argues that, since it voted in
favor
ofan expansion of the County’s
Waste
Management landfill expansion, the City’s finding
of consistency with the plan is against the manifest weight of the evidence. However, as
the Board knows,
the
County’s
“approval”
was voided by
the Board
because
of
inadequate notice, and Waste Management has a second application for expansion now
pending before the County
Board.
Thus, there
is no “approval” of the Waste Management
expansion.
The
City’s
finding is certainly not against the
manifest weight ofthe evidence
and
is
absolutely
consistent
with
prior
Board
and
court
case
law.
In PCB
03-31,
03-33
and
03-35,
when
the
County
made
similar
arguments.
the
Board concluded that
“it
is
unreasonable to interpret the plan to require the City to wait indefinitely
for the approval
or rejection of an
application
(or amended
application) to
expand the
waste
management
landfill.”
~PCB 03-3/, 03-33 and 03,
34, Januwy
9,
2003 Slip Opinion at Page 29~.
County Approval.
Finally, the County argues that the application
is inconsistent
with
the
Solid
Waste Management
Plan because, although
the
application
includes
all
of
the
programs
necessitated
by
the
plan,
there has
been
no
evidence presented that
these
programs have been “approved” by
the County.
This approval process was mandated
with the onset of the recent alleged amendments to the county’s plan, particularly the
March
12. 2002 amendments.
As argued previously, those amendments did not ibllow
93
the
requisite
statutory
process,
have
not
been
approved
by
the
Illinois
EPA
as
being
consistent
with
that
process and,
accordingly,
are
not
valid.
Thus,
county
approval of
these programs is not a valid ‘requirement” of the plan.
City~Solid
Waste Management Plan.
Nonetheless, since the County’s
plan has
not
been appropriately developed
and
established,
the City has
developed
its
own plan.
This
plan
contains
all
the
programmatic
requirements
that
the
County
complains
are
missing
in the Application,
except
that County
approval
is not required.
This
action is
responsible, protective and necessary, given the
County’s unilateral actions.
It is certainly
well within the
City’s authority under the Disposal
Act and
the constitutional authority of
a home rule city:
It is
the purpose ofthis
Act and the policy ofthis
State to protect the public health
and
welfare and
the quality of the environment
by providing local governments
with
the ability
to
properly
dispose
of solid
waste
within their jurisdictions
by
preparing
and
implementing,
either
individually
or
jointly,
solid
waste
management
plans
for
the
disposal
of solid
and,
to
the
extent
technically
and
economically feasible, to
efficiently use products or byproducts
generated during
the disposal
process. (emphasis added).
415 JLGSJO/1.1
Section
2(2)
of
the
Disposal
Act
defines
a
“unit
of
local
government”
to
specifically include a municipality, and
Section 2(4) specifically defines
“jurisdiction” in
the
case
of
a
municipality
to
be
“the
territory
within
the
corporate
limits
of the
municipality.”
415 JLCS 10/2(2)
and 10/2(4).
The Disposal
Act defines the jurisdiction
of a county
to
exclude
“the corporate limits
of any
municipality
which has adopted or is
implementing a plan under this
Act...”
415
ILCS
10/2.
Accordingly, Kankakee County’s
jurisdiction may
not
reach within the boundaries of the
City of Kankakee once
the
City
has adopted a solid waste plan.
When
the
City
of Kankakee
adopted
its
Solid
Waste
Management
Plan,
any
94
provision of the County’s plan in conflict
with the
City’s Plan became invalid with respect
to the
City, based upon the provisions ofthe Disposal
Act and
the Illinois
Constitution.
Ill.
Const.
Art. VII, Section 6(c).
In the prior proceeding,
the objectors
also alleged that
the
City’s
decision was against the manifest weight ofthe evidence based
upon a similar
argument
that the applicant failed to
have a host agreement with the County.
The Board
stated~:“the County Plan oniy indicates that an applicant and the County
woUld agree to
a
host
community
agreement
(citation omitted.).
The
Board
finds
that
the
County Plan
does not require that an
applicant enter a host agreement with the County.”
(PCB 03-31,
33
and
35,
January
9,
2003).
Similarly,
the
Board
should
uphold
the
City’s
determination here. County approval is simply not required.
4. The County’s Position In This Proceeding, And
The County’s Proffered
-
“Solid
Waste Management Plan” Violates The
Illinois Constitution As It Is An
Improper Infringement And Limitation Upon The Home Rule Powers Of An
Independent Local Government Jurisdiction.
The Illinois Pollution Control Board
is responsible for the proper interpretation of
the Illinois Environmental Protection Act.
It is well established that, as an administrative
adjudicatory agency, the Board must
interpret the Act in a way that
is
consistent with the
constitution
and
other
lawful
requirements
upon
which
it’s
provisions
are
based.
It
cannot condone, and accept, interpretations like
that ofthe County’s,
which
constitute an
unlawful
and
unconstitutional
application of a carefully proscribed statutory
process.
It
carmot condone unconstitutional applications of a statutory environmental process.
Section
39.2
of the
Act
clearly
grants
the
City
of
Kankakee
the
sole
siting
responsibility
to
approve
or deny
a
request
for
siting
approval
of a
pollution
control
facility located within
its
corporate boundaries.
Section
39.2(a)(viii) has
been carefully
crafted
so that the siting jurisdiction first
determines the Solid Waste Management Plan’s
95
• consistency with the
statutory process prior to
deciding consistency with
the plan
itself.
This
is
to
ensure
constitutional
correctness.
The
County’s
position
is
constitutionally
infirm.
Before the
1970
Illinois
Constitution,
municipalities
and
counties
only
had
the
authority
to
act that
was expressly
given
to
them
by
the Illinois
legislature.
The prior
theory ofstate legislative
control of local government (the “Dillon’s Rule”) was capsized
with the new constitution’s
development of home
rule.
See
Ives
vs.
City of Chicago,
30
Ill.
2d 582,
198 NE.
2d 518
(1964)
and
City of Clinton
vs.
Cedar Rapids
and Missouri
River Railroad, 24 Iowa 455 (1868).
Now, the corporate and
governmental functions of a
local
government jurisdiction can
be
preempted
by the
state only
in
the narrowest
and
most specific of circumstances.
As
a
home
rule
local
government
jurisdiction,
the
City
of
Kankakee
has
substantial
constitutional
authority
to
enact
ordinances
and
take
other
actions
which
pertain to
its
government and affairs.
The
Illinois
Supreme Court explained the dramatic
constitutional authority of the home rule unit, as follows:
The
concept
of
home
rule
adopted
under
the
provisions
of
the
1970
Constitution
was
designed
to
drastically
alter
the
relationship,
which
previously
existed
between
local
and
State
government.
Formerly,
the
actions
of local
governmental
units
were
limited
to
those
powers which
were
expressly
authorized,
implied
or
essential
in
carrying
out
the
legislature’s
grant of authority.
Under the home
rule
provisions of the
1970
Constitution,
however~the power of the General Assembly
to
limit
the actions ofhome rule units was circumscribedand home rule units have
been constitutionally delegated greater
autonomy
in
the determination of
their
government
and
affairs.
To
accomplish
this
independence,
the
Constitution
conferred
substantial
powers
upon
home-rule
units
subject
only
to
those
restrictions
imposed
or
authorized
therein.
Kannellos
vs.
Cook
County,
53
Ill.
2d
161,
290
N.E.
2d
240,
243
(1972)
(emphasis
added).
96
Neither Section 39.2 ofthe Illinois Environmental Protection Act nor the Disposal
Act nor the
SWPRA impose
any
specific
restrictions
on the authority
of the home rule
municipality
as explained
above.
Rather,
those
statutes
have
been carefully
crafted
to
take
into
account
the
constitutional
authority
of home
rule
units
of
government
and
should
be
so construed.
As a
home rule unit, the City of Kankakee “may
exercise any
power and perform any function pertaining to its
government
and affairs...”
(ILL.
Const.
Art. VII, Section 6(a)), and may also
“.
.
.exercise and perform concurrently with the State
any power function of a home rule unit
to
the extent that
the General Assembly
by law
does not specifically
declare the State’s exercise to be exclusive.
ILL.
CONST.
Art. VII,
Section 6(i).
Nothing in
these statutes even remotely suggests that the legislature intended that
the
authority of local
government
on
the question
of siting
be
usurped by
the state or,
more to the point here, by
a local
government jurisdiction of equal authority.
Nothing in
state law
even remotely suggests that a
county’s
authority
preempts that
of a
home rule
municipality.
Rather, these
laws were
carefully crafted to
avOid
the
very
problem that
the County of Kankakee brings to this Board.
Clearly,
pursuant
to
both
the
Illinois
Constitution
and
the
delegation
by
the
General Assembly of the responsibility for siting approval, the City ofKankakee may not
be prevented,
or in any
way obstructed,
in the exercise ofthis power within its
corporate
boundaries
by
Kankakee County.
Any attempt
to
contend that
Kankakee
County
may,
through the
guise of amendments to
its Solid
Waste Management Plan,
prohibit the
City
of Kankakee from approving the siting of a pollution control facility within its
corporate
jurisdiction is
directly contrary to
the Illinois Constitution
and the authority of
415 JLCS
97
1~’
cm
cm
o
5/39.2(a).
A
Solid
Waste
Maiiagement
Plan
may
not
limit
the powers
of a
unit
of local
0
government conferred by the Illinois Constitution or delegated by the General Assembly.
To the extent that it attempts to do so, the plan is simply not relevant or effective.
Simply
C;
put, the Solid Waste Management Plan cannot be
used by a county to reserve to itself the
C,
c’,
.
sole
and exclusive power to site a pollution control facility within the county.
There is no
C
valid,
recognized
preemption of a
city’s
authority,
by
a county,
in
this
regard.
To
the
cm
cm
extent that an
application of criterion viii
would be
construed to allow Kankakee County
0
this
unlawful
and
unconstitutional
usurpation
of
local
authority,
such
statutory
Q.
0
application
would
render
criterion viii
unconstitutional.
The
City
of Kankakee,
in
its
1~..
siting
decision,
recognized
that.
On
review,
so
should
the
Illinois
Pollution
Control
Board.
V.
NONE
OF
THE ISSUES RAISED
BY BYRON
SANDBERG REQUIRE
L)
REMAND OR REVERSAL
fl
,
Byron
Sandberg, in his single-spaced Brief without citations to
the record or legal
L)
authority raises
no
issues not otherwise addressed
in Town &
Country’s
response
to
the
Kankakee County
Brief except
the landfill poses
a danger to
Minnie Creek, and that the
h
landfill is within the
100-Year Flood Plain.
The unrebutted testimony ofDevin Moose is
that
based
upon
the latest
FEMA
Flood
Plain Maps, the
facility
is
entirely outside the
established
100-Year Flood Plain.
(Hrg. Tr.
Volume 2C, Page
81).
The Exhibit from the
Illinois
Department
of Natural
Resources
attached
to
Mr.
Sandberg’s
Brief does
not
support
a
different
conclusion.
Mr.
Moose
also
described
design
features
to
prevent
•
backflow
onto
the site if Minnie
Creek rises
beyond
its
flood
stage.
(Hrg.
Tr.
Volume
98
2C,
Page
67).
He
reiterated
in
rebuttal
that
the
design
fully
takes
into
account
the
possibility that Minnie Creek may flood.
(Hrg. Tr.
Volume
5A,
Page 80).
For the
foregoing reasons,
none
of the
issues
raised
by
Mr.
Sandberg
mandate
remand or reversal.
VI.
CONCLUSION
fl
For the reasons set forth herein, Kankakée Regional
Landfill, L.L.C. and Town &
Country
Utilities,
Inc.
respectfully
pray
that
this
Board
affirm
the
decision
of
the
D
Kankakee
City
Council
granting
siting
approval
for
a new
regional
pollution
control
D
..
.
0
no’
facility.
Respectfully Submitted,
Kankakee Regional
Landfill, L.L.C. and
Town & Country Utilities, Inc.,
Respondents.
BY:
___________________
Their Attorney, George Mueller
GEOR GEMUELLER, P.C.
Attorney at Law
501 State Street
Ottawa, IL
61350
Phone:
(815) 433-4705
99
Hydrogeo(ogica( Investigation Compliance Chart
-
.
Compared Lssue
Kankakee Regional
Landfill
(Initial
investigation)
Kankalcee
Regional
Landfill
(Complete
Investigation)
irs
Compliance
Wth
IEPA
G~idanca?
Total
Number of Boring Locatlo
ns
Within
or
Near
the
New Waste
Boundary
14.0
3~.0
Yes
(Excluding_Nested Well_Locations)
Total
Number of Acres
(Waste Footprint)
.
•
2060
~
236.0
.
Total Number of Acres per Boring Location
(Within
or Near the
Waste
Footprint)
Total
Number of Borings 10 Fee
Bedrock
t or Greater
into
1.0
•
21.0
•
‘
Yes
Total Amount
of Rock
Cored
or
Drilled with
Roto-
Sonic Technology_(FL)
-____________________________
410.4
Yc~
—
TotalAmountofRockcored(FL)
00.8
410,4
•
Yea
—
Total
Amount
of Rock Core Footage used for Rock
Quality Designation (RQD) MeaeUrcments
66.8
410.4
Yea
Total Number of Boring Locations With Packer
Tests
Performed_In_Bedrock
10
23.0
Yes
Total Number of intervals
Packo
Bedrock
r Tested
within
37.0
Ycs
Total
Footage of Bedrock PackerTested
40.0
283.1
Yea
—
Total
Number
of
Boring
Locations
Performed
In Weathered
With Slug
Tests
Bedrock
20.0
‘
Yea
Total Number ofSlug
Tests
Performed In
WeatheredBedrock
—
Geometric Mean
of
Hydraulic Conductivity
Results
for.
the Weathered
Bedrock
2 595.02
~
S.305.04
Vasa
‘Yea
Total
Number
of Boring Locations
Performed In
Competent
With Slug Tests
Bedrock
•
•~
~
Total
Number of Slug
Tests
Performed
in Competent Bedrock
~o.o
1,iOE.os
i~
Yss
Geometric Mean
of Hydraulic
Conductivity Results
for the Competent Bedrock
.
Average Thickness of Recompacted
Clay and
In-situ Clay Below Liner
7.5
7.5
Minimum
Thickness of Clay (LIn
Between Waste and
Upperm
or and In-Situ)
ost Aquifer
3.0
Yes
Average Thickness af Recorapact
Liner
ad Clay Sidewall
1~
120
2.0
Yes
Total Number ofAnglcd Boring
at Sitc
S Performed
0.0
Y~a
Total Footage of Rock Core Obtain
Borings
ad from Angled
0.0
62.5
‘(es
.••
Total
Number of Arsgied
Boring
L
F’ackerTest.s
Performed In
ocatlons With
Bedrock
0.0
2.0
Ye~
9.0
•
Yea
Yes
Total
Number of Interv~isPacker Tasted within
Bedrock
at Angled Boring
Locations
0.0
.
Total Footage
of Bedrock
Packer
T
Boring Locations
ested at Angled
Complete Inward
GradlentAcrossTop ofLiner
V0~
APPENDIX
“A”

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