BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
BYRON
SANDBERG,
)
JAN
20200k
Petitioner,
)
No.
PCB
04-33
)
(Third-Party
Pollution
Control
)
Facility Siting Appeal)
)
THE
CITY OF KANKAKEE,
ILLiNOIS CITY
)
COUNCIL,
TOWN AND COUNTRY
UTILITIES,
)
INC.
and
KANKAKEE
REGIONAL
LANDFILL,
)
LL.C.
)
)
Respondents.
)
___________________________________________________________________________
)
WASTE MANAGEMENT
OF ILLINOIS,
INC.,
)
)
Petitioner,
)
No.
PCB 04-34
)
)
(Third-Party
Pollution
Control
)
Facility
Siting Appeal)
)
THE
CITY OF
KANKAKEE,
ILLINOIS
CITY
)
COUNCIL,
TOWN AND COUNTRY
UTILITIES,
)
INC. and
KANKAKEE
REGIONAL LANDFILL,
)
L.L.C.
)
)
Respondents.
)
_________________________________________________________________________________
)
COUNTY
OF
KANKAKEE,
ILLINOIS
and
)
EDWARD
D. SMITH,
KANKAKEE
COUNTY
)
STATE’S
ATTORNEY,
)
)
Petitioner,
)
No.
PCB
04-3
5
)
)
(Third-Party
Pollution
Control
)
Facility
Siting Appeal)
)
(Consolidated)
THE
CITY OF
KANKAKEE,
ILLiNOIS
CITY
)
COUNCIL,
TOWN AND COUNTRY
UTILITIES,
)
INC. and
KANKAKEE
REGIONAL LANDFILL,
)
L.L.C.
)
)
Respondents.
)
NOTICE OF FILING
DJM
380744
vi
January
19, 2004
TO:
See Attached Service List
PLEASE TAKE NOTICE that on January 20,2004, we will file with the Illinois
Pollution Control Board, the attached REPLY BRIEF OF WASTE MANAGEMENT
OF
ILLINOIS, INC. in the above entitled matter.
WASTE MANAGEMENT OF
ILLiNOIS, INC.
By:__
One ofIts A
orneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney Registration No.
1953923
DJM
380744
vi
January
19,2004
RECEIVED
BEFORE
THE
iLLiNOIS
POLLUTION
CONTROL
BOAR~LERIcS
OFFICE
BYRON SANDBERG,
)
JAN
202004
Petitioner,
)
No. PCB 04-33
STATE OF ILLINOIS
)
Pollution Control Board
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
)
THE CITY OF KANKAKEE, ILLINOIS CITY
)
COUNCIL, TOWN AND COUNTRY
UTILITIES,
)
INC. and KANKAKEE REGIONAL
LANDFILL,
)
L.L.C.
)
Respondents.
)
_____________________________________________________________________________________
)
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
Petitioner,
)
No. PCB
04-34
)
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
)
THE CITY OF KANKAKEE, ILLINOIS CITY
)
COUNCIL, TOWN AND COUNTRY UTILITIES,
)
INC.
and
KANKAKEE REGIONAL LANDFILL,
)
L.L.C.
)
Respondents.
)
______________________________________________________________________________
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE COUNTY
)
STATE’S ATTORNEY,
)
Petitioner,
)
No. PCB
04-35
)
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
)
(Consolidated)
THE CITY OF KANKAKEE, ILLINOIS CITY
)
COUNCIL, TOWN AND COUNTRY UTILITIES,
)
INC. and KANKAKEE REGIONAL
LANDFILL,
)
L.L.C.
)
Respondents.
)
REPLY BRIEF OF PETITIONER, WASTE MANAGEMENT OF ILLINOIS. INC.
Petitioner, WASTE MANAGEMENT OF ILLINOIS, INC. (“WMII”), by and
through its
attorneys,
Pedersen
& Houpt, submits this briefin reply to the following matters raised in the
briefofRespondents, TOWN & COUNTRY UTILITIES, INC. and
KANKAKEE
REGIONAL
LANDFILL, LLC (“Town & Country”).
381926
I.
TOWN
& COUNTRY’S FAILURE TO SERVE NOTICE ON ALL INDIVIDUALS
LISTED AS OWNERS OF THE BRADSHAW/SKATES PARCEL DIVESTED
THE CITY OF JURISDICTION TO HEAR AND DECIDE
THE
APPLICATION
Town &
Country failed to comply with Section
3 9.2(b) ofthe Illinois Environmental
Protection Act (“Act”) by failing to individually serve each of six record owners ofParcel No.
13-16-23-400-001
(“Bradshaw/Skates Parcel”) at their respective addresses as identified in the
authentic tax records of
Kankakee County.
Section
39.2(b) requires Town & Country to serve
notice of its request for site approval “on the owners ofall property within 250
feet in each
direction ofthe lot line ofthe subject property,
said owners being suchpersons or entities which
appearfrom
the authentic tax records ofthe County in which suchfacility
is to
be located.”
415
ILCS 5/39.2(b) (2000) (Emphasis added).
In its
Brief1, Town & Country concedes that the property index record card maintained at
the Kankakee County assessor’s office lists the following six owners ofthe Bradshaw/Skates
Parcel:
Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw, Denise Fogle and
Judith Skates.
(T&C Br. at 8).
Town & Country further concedes that the single address listed
for all record owners, except Judith
Skates, is 22802 Prophet Road, Rock Falls, Illinois.
(T&C
Br. at
8).
However, rather than serve Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted
Bradshaw
and Denise Fogle at their Rock Falls address, Town & Country attempted to serve
them by mailing a single group notice
“in care of’ Judith Skates at her separate address of 203
S.
Locust Street, Onarga, Illinois.
The Bradshaws and Ms. Fogle did not receive the notice.
Town & Country contends that its
attempt to serve the owners ofthe Bradshaw/Skates
Parcel complied with Section
3 9.2(b).
Town & Country argues that it was not required to give
the Bradshaws and Ms. Fogle notice because they were not consistently identified as owners in
References to Town & Country’s Briefwill be cited as “(T&C Br. at
J.”
381926
2
Kankakee
County’s authentic
tax records.
Town &
Country argues furtherthat, even if it were
required to give those five owners notice, it was sufficient to mail it to them in care ofthe sixth
owner, Ms. Skates, at her Onarga address because (i) their address was changed from the Rock
Falls address to the Onarga address;
and (ii) upon information and belief, they did not actually
reside at the Rock Falls address.
Based upon the Board’s recent holding in
City ofKankakee
v.
County ofKankakee,
PCB 03-125, 03-133, 03-134, 03-135 (consol.) (August 7, 2003) (referred
to herein as
“City ofKan/cakee”),
Town & Country’s arguments fail.
A.
Town &
Country is obligated to comply with the plain language ofthe notice
requirements ofSection 39.2(b)
In the
City ofKankakee,
the Board made clear that the notice requirements ofSection
39.2(b) ofthe Act are to be strictly construed.
Id.,
slip op. at 17.
When an applicant for local
siting approval fails to comply with the plain language ofSection 39.2(b), the local
siting
authority lacksjurisdiction to review the siting application.
Id.
In
City ofKankakee,
the Board identified three distinct requirements of Section 3 9.2(b):
First,
property owners listed on the authentic tax records must be
served notice.
Second, property owners who own property within
250 feet ofthe lot line ofthe proposed facility must be notified.
Third,
service on
those property owners must be
effectuatedusing
certifiedmail return receipt requested orpersonal service.
Id.,
slip op.
at 15
(emphasis added).
Ifeach ofthese requirements has not been satisfied, the
Board must find that the local siting authority lacked jurisdiction.
In
City ofKankakee,
the Board held that Kankakee County lacked jurisdiction based upon
the Board’s finding that the wife ofa record property owner was not properly served via personal
service or certified mail service.
Both Robert Keller and BrendaKeller were identified in the
authentic tax records ofKankakee County as the owners ofthe property located at 765 East 6000
South Road, Chebanse, Illinois.
While Mr. Keller was found to have been properly served via
381926
3
certified mail at that address, the Board found that Mrs. Keller was not properly served.
The
Board also found that service ofnotice upon Mr. Kellerwas not sufficient to find notice upon
Mrs. Keller, and the Board ruled that Kankakee County lacked jurisdiction.
Id.,
slip op. at 17.
Based on
City ofKankakee,
and as further discussed below, Town & Country cannot
establish that its attempt to serve record owners Gary Bradshaw, James Bradshaw, Jay Bradshaw,
Ted Bradshaw and Denise Fogle by mailing a single group notice “in care of’ Judith Skates at
her separate Onarga address complied with Section
3 9.2(b).
B.
Kankakee County’s authentic tax records consistently identified the names and
addresses ofall six
owners of
the Bradshaw/Skates parcel
Town &
Country argues that it was not obligated to serve separate notice upon the five
owners of
the Bradshaw/Skates Parcel who maintained the Rock Falls address because of
conflicting authentic tax records.
(T&C Br. at 9-10, 12).
Town & Country contends that the
assessor’s office has “three distinct and different authentic tax records” (namely, a property index
record card, a name and address change card, and a tax bill), and while the property index record
card identifies Ms.
Skates at the Onarga address and the other five owners at the Rock Falls
address, the name and
address change card and tax bill
“suggest that only Judith Skates was
entitled to receive notice” at the Onarga address.
(T&C
Br. at
9,
13).
Hence, Town & Country
argues
that there was “conflicting information as to who the owners are”
(T&C Br. at
13), and
that this purported conflict in the record ofthe assessor’s office permitted it to conclude that only
Ms.
Skates was entitled
to notice.
Town
&
Country is wrong.
There is no conflict among the records maintained at the assessor’s office.
The three tax
records that Town & Country refers to serve distinct and different purposes.
Although these
records may, at times, contain different information, that does not create a conflict among them.
Rather, they are designed to work together.
The property index record card records the names
381926
4
and
addresses
ofproperty
owners.
It
is
the
master record.
At the time Town &
Country
attempted to serve notice in connectionwith its 2003 Application, the property index record card
identified all
six owners ofthe Bradshaw/Skates Parcel and the address listed forthe Bradshaws
and Ms. Fogle was 22802 Prophet Road, Rock Falls, Illinois.
(T&C Br. at 8).
Only Ms. Skates
was listed as maintaining an address at 203
S. Locust Street, Onarga, Illinois.
This record is
determinative ofthe identity and addresses ofproperty owners.
The name and address change card is the form that
is available to property owners who
wish to change their name and/or address.
The property index record card is updated to reflect
any such changes.
However, the name and address change card is kept on file so that there is an
official record of a property owner’s requested changes.
Therefore, at the time Town &Country
searched the records ofthe assessor’s office, the information in the property index record card
would have already been updated to include the information in the name and address change card
filedby Ms.
Skates.2
The most up-to-date property index record card identified the Bradshaws
and Ms. Fogle
as owners under the Rock Falls address and Ms.
Skates at the Onarga address.
The tax bill
is an invoice that
is mailed as directed by the property index record card.
The
property index record card may “flag”
a particular mailing address to receive tax bills and other
notices from the assessor’s office.
However, the “mail and notice
flag” does not alter or trump
the record owner information contained in the property index record card.
Hence, despite Town &
Country’s arguments, there is no conflict among the three
foregoing tax records maintained at the assessor’s office as to the identities and addresses ofthe
record owners.
Those owners were the Bradshaws and Ms. Fogle at the Rock Falls address and
2
See
I.C. ofthis Reply Brief, below, for discussion on why Ms.
Skates’ name and
address change card did not change the address of the other five owners.
381926
5
Ms.
Skates at the Onarga address.
As such,
City ofKankakee
requires Town & Country to serve
notice personally or by certified mail to each of them.
City ofKankakee,
slip op. at 16-17.
C.
Town &
Country was obligated to individually serve all five record owners at
their Rock Falls address, regardless of where they resided, not in care ofJudith
Skates at her Onarga address
Town & Country argues that,
even if the other five owners were entitled to notice, it was
not required to serve them at their Rock Falls address because (i) Judith Skates changed their
address to the Onarga address;
and (ii) they did not reside at the Rock Falls address.
These
arguments are completely without merit.
While Judith Skates filed a name and address change card changing
her
address to the
Onarga address, she did not change the address ofthe other five record owners.
Although the
card contains the Bradshaw/Skates Parcel number and the words “Skates, Judith and Bradshaw,”
those notations are meant to identi1~r
the property, not the owner requesting the change.
The only
owner who specifically requested a change ofaddress was Judith Skates, who signed the card on
her own behalf.
Town & Country’s argument that Ms.
Skates intended to change the address ofthe other
five owners is not only unsupported by the record, but also wholly irrelevant to determining the
identities ofthe official record owners ofthe Bradshaw/Skates Parcel.
Kankakee County’s
Chief
Assessment Officer, Sheila Donahoe, testified before the Board3 that Ms.
Skates could not have
made any changes concerning the other five owners unless they granted her power ofattorney to
do so.
(Bd. Tr.
12/2/03 at 62-63).
Therefore, the key inquiry is whether Ms.
Skates had the
authority
to
change the address ofthe other five owners.
Town & Country presented no
~ References
to the transcripts ofthe hearings before the Board are cited as (“Bd. Tr.
//04
at
“).
381926
6
evidence
that Ms.
Skates had
any authority, actual or apparent, to change
the address ofthe other
record owners.
In fact, Ms. Skates,
in her Affidavit, swore that she had
not been authorized
by
the other owners to receive notices concerning the property.
It
is clear from
the record that the name and address change card filed by Ms.
Skates did
not change the address of the Bradshaws orMs.
Fogle from the Rock Falls address to the Onarga
address.
Therefore, Town &
Country’s attempt to serve those five owners through Ms. Skates at
the Onarga address was ineffective.
See City ofKankakee,
slip op. at 13-17
(service of notice on
husband at couple’s home address not sufficient notice to wife).
Here, none of
the
individual
five owners who maintained
the Rock Falls address per the
authentic tax records were sent notice via certified mail.
Town
& Country’s reliance on
Wabash
and Lawrence Counties Taxpayers and Water Drinkers Assoc.
v. Pollution Control Board,
198
Ill. App. 3d 388,
555
N.E.2d 1081
(5th Dist.
1990) to support its attempt to serve the five owners
collectively in care of
Ms. Skates is misplaced.
Although the Fifth District in
Wabash
held that
it was sufficient for the applicant in that
case to have effected service on one out of several heirs,
there was only one heir listed in the authentic tax records.
Id.,
at
390-91,
555
N.E.2d at
1084.
In
this case, all
six owners and their respective addresses were listed in the authentic tax records.
Town & Country was, therefore, required to serve individual notice on Ms.
Skates at her Onarga
address, and on the remaining five owners at their Rock Falls address in order to satisf~r
Section
39.2(b).
Town &
Country’s final argument, that it was not required to serve notice on the
Bradshaws and Ms. Fogle at their Rock Falls address based upon its information and belief that
they did not reside there, is equally lacking in merit.
Town &
Country cites no authority
for the
381926
7
proposition that record owners need not be served at the address appearing in the authentic tax
records, if
there is some suggestion or fact indicating
that
they
do
not actually reside there.
Such
a proposition would lead to
absurd results given that property owners commonly list post office
boxes as their address in the authentic tax records.
Moreover, Section 39.2(b) specifically
requires that notice be served on property owners at the address appearing in the authentic tax
records, not attheir domicile.
Thus,
it is irrelevant to the notice issue presented as to whether the
Bradshaws and Ms. Fogle actually resided at the Rock Falls address.
Even if residency were
relevant, Town &
Country presented no evidence that the Bradshaws and Ms. Fogle resided with
Ms.
Skates at the Onarga address.
Therefore, based on Town & Country’s own argument, if the
other five owners did not reside at the Onarga address, its attempt to serve them at that address
would have been ineffective.
WMII agrees with Town &
Country that a siting applicant bears a draconian, and at times
absurd, burden regarding service ofnotice under
Section
3 9.2(b) and the decisions construing it.
(T&C Br. at
15).
This Board’s decision in
City ofKankakee
nullified three weeks ofpublic
hearing and a substantive review and decision by Kankakee County on a two-volume siting
application because the wife ofa property owner who was served notice claimed that she did not
receive notice.
City ofKankakee,
slip op.
at 13-17.
As unfair as it might appear to a siting
applicant,
City ofKankakee
is the law and it must be applied here.
City ofKankakee
strictly
construes Section 39.2(b), and requires that each property owner listed in the authentic tax
records must be served notice by personal service or certified mail.
Id.,
slip op. at
15.
The
evidence is undisputed that notice was not sent to or served on Gary Bradshaw, James Bradshaw,
Jay Bradshaw, Ted Bradshaw or Denise Fogle by certified mail orpersonal service.
A certified
381926
8
mailing to Judith Skates is not notice to any ofthe Bradshaws or Denise Fogle.
Id.,
slip op. at
17.
Thus, proper service on the Bradshaws and Ms. Fogle was not effectuated and the City
lacked jurisdiction to hear and decide the Application.
II.
TOWN & COUNTRY
HAS
FAILED
TO DEMONSTRATE THAT
THE
2003
APPLICATION IS
NOT SUBSTANTIALLY THE
SAME
AS THE 2002
APPLICATION
Town & Country’s 2003 Application is substantially the same as its 2002 Application.
The City lacksjurisdiction to review and decide a siting application that
is substantially the same
as an application that was disapproved within the preceding two years.
415
ILCS
5/39.2(m).
Town &
Country seeks to avoid Section 39.2(m)’s prohibition by claiming that (i) that section
does not apply in this case; and (ii) even if it applies, the two applications are different.
Town &
Country’s arguments are unsupported by the record.
A.
Section 39.2(m) ofthe Act prohibits the re-filing ofthe substantially same
application within
two
years,
regardless ofwhich administrative orjudicial body
denies a grant oflocal siting approval
Town & Country initially argues that Section
3 9.2(m) ofthe Act does not apply in cases
like this one where a local siting authority’s grant oflocal
siting approval
is reversed on appeal to
the Board.
(T&C Br. at 19-20).
Town & Country concedes that no legal
authority exists in
support ofits position, but nonetheless contends that the concepts ofdisapproval and approval
are limited to the local
siting authority’s decision, and therefore, the use ofthe word
“disapproved” in Section
3 9.2(m) is evidence ofthe legislature’s intent that the section only
applies when the local siting authority denies an application for local siting approval.
(T&C Br.
at 19-20).
381926
9
Town & Country’s argument ignores the practical reality that the Board, in effect,
disapproves local siting approval when
it reverses a grant oflocal siting approval based on a
finding that any ofthe nine statutory criteria in Section 39.2(a) has not been satisfied.
Town &
Country’s argument also
runs counter to the stated goal ofSection 39.2(m), which is
“to prevent
the duplicitous and repetitive filings ofapplications for siting approval to conserve
administrative and judicial resources.”
Laidlaw
Waste Systems v. Pollution Control Board,
230
Ill. App. 3d 132,
136,
595
N.E.2d 600, 603
(5th Dist.
1992).
Regardless ofthe stage at which an
application for local
siting approval is denied for failure to meet the statutory criteria
—
whether
at the local or Board level
--
the re-filing withintwo years ofthe denial ofan application that
contains substantially the same information that was unable to satisfy the nine statutory criteria
in the first place will result in the unnecessary expenditure ofsignificant administrative,judicial
and public resources.
Town & Country cites to
Turlek v. Illinois Pollution Control Board,
274 Ill. App. 3d 244,
653
N.E.2d 1288 (1st Dist.
1995)
for “guidance.”
In
Turlek,
the initial
application was approved
by the local siting authority, but reversed by the Board due to the
local siting authority’s failure to
make the application available to the public.
Id.,
at 247,
653
N.E.2d at 1290.
However, the issue
in
Turlek
was not whether Section 39.2(m) applies only when the local
siting authority
disapproves an application.
The issue in
Turlek
was whetherthe applicant.filed a new
application when a substantially similar application was still pending, and whether that scenario
violated Section 39.2(m).
Id.,
at 247-48,
653
N.E.2d 1291.
Although the
Turlek
court, in dicta,
stated that the original application was approved, not disapproved by the local siting authority,
381926
10
the court made the distinction that the reversal by the Board was
“on grounds unrelated to those
contained in Section 39.2(a).”
Id.,
at 249,
653 N.E.2d at
1291. (Emphasis added).
Tune/c
does
not hold that Section 39.2(m) ofthe Act is inapplicable when an original application is approved
by the local
siting authority, and
subsequently reversed
by the Board.
In fact, the dicta indicates
that the distinguishing factor for the court as to whether Section 39.2(m) applies
is not which
administrative agency (local or
the Board) denied the local siting approval, but whether the
denial was based on the applicant’s failure to
satisfy the statutory criteria.
In this case, the Board reversed the City’s original
grant oflocal siting approval on the
grounds that the proposed landfill was not designed and located to protect the public health,
safety and welfare as required by criterion two.
Therefore, if Town &
Country is permitted to re-
file an application that
is
substantially the same as the original application,
Section 39.2(m)
should apply to prevent the unnecessary and wasteful expenditure of administrative,judicial and
public resources.
B.
The 2003 Application and the 2002 Application are substantially the same
Town & Country claims that its 2003
Application is not substantially the same as its
2002
Application because the former contains supplemental information.
However, Section
39.2(m)
does not require that the subsequent application be identical to a prior application to be barred.
Worthen
v.
Village ofRoxana,
PCB 90-137, slip op. at
5
(September
9,
1993).
The question of
whether prior and subsequent applications are substantially the same is determined by reviewing
the two applications in terms ofthe statutory criteria, and assessing whether there are sufficiently
significant differences between them.
Laidlaw,
230 Ill. App.
3d at 139,
595
N.E.2d at 604.
381926
11
In an attempt to show that the two applications are not substantially the same, Town &
Country points to the following differences between them:
(i) the service area; (ii) the
hydrogeologic
data; (iii) the design; and (iv) the proofs regarding its consistency with the
Kankakee County Solid Waste Management Plan (“Plan”).
(T&C Br.
at 22-23).
For the
following reasons, these purported “differences” do not significantly differentiate the 2003
Application from the 2002 Application.
First, the reduction in the service area proposed in the 2003 Application is slight,
representing only a 4
reduction in the overall amount ofwaste generated in the service area.
(6/24/03 Tr. Vol.
1-B, 48).
This reduction in the service area does not change the amount of
waste Town & Country intends to accept each day (3,500 tpd), the
landfill’s waste capacity
(50.9
million cubic yards) or the operating life ofthe landfill (30 years).
The landfill will be serving
essentially the same service area described in the 2002 Application, as measured by the amount
ofwaste generated in the service area and disposed ofatthe landfill.
Likewise, there is no meaningful difference between the hydrogeologic information
contained in the two applications.
Town &
Country points to the three additional volumes that
were filed with the 2003 Application.
However, the material contained in those volumes do not
contain significantly different hydrogeologic datasufficient to render the 2003 Application not
substantially the same as the 2002 Application.
The
data concerning
the additional soil borings
attempts to bolster the same conclusions contained in the 2002 Application that the Siluriän
Dolomite
bedrock is an aquitard, despite the Board’s finding in
County ofKankakee
v.
City of
Kankakee,
PCB 03-31, 03-33, 03-35 (consol.) (January
9, 2003) (referred to herein as
“Town &
381926
12
Country 1”)
that such a conclusion is contrary to prevailing scientific characterization ofthe
Silurian Dolomite bedrock in the area.
Even though the Board in
Town & Country I
raised a concern about the design ofthe
landfill proposed in the 2002 Application, the landfill design proposed in the 2003 Application is
the substantially the same, except that the 2003 Application includes information about an
optional
geosynthethic clay liner (GCL) composite, which Town & Country does not
recommend
and does
not believe is
necessary or appropriate for the proposed landfill.
(June 26,
2003
Tr. Vol. 3A at
3 8-42).
The GCL composite was simply offered as an alternative to a
double composite liner in the event the City felt inclined to impose a condition requiring some
additional protection beyond that provided by the proposed composite liner.
(June 26, 2003
Tr. Vol. 3A at 39-42).
A design feature which is not proposed or recommended by the applicant,
but only offered as an alternative if the municipality deems it necessary,
does not constitute a
design change that renders an application substantially not the same as a prior one.
Finally, as a result ofthe County’s amendmentto its
Plan on February 11, 2003, Town &
Country submitted a revised report in an effort to comply with criterion eight of Section
3 9.2(a).
However, the revised report contains substantially the same analysis of the landfill’s consistency
with the Plan as was contained in the 2002 Application, and the conclusion on criterion eight is
precisely the same.
A review ofthe two applications clearly demonstrates that the proposal
for the Town &
Country landfill in the 2003 Applicationhas not changed from the 2002 Application.
The
additional information provided to support Town
&
Country’s conclusions concerning criteria
one, two, five and eight do not make the 2003 Application substantially not the same as the 2002
381926
13
Application.
The information concerning criteria three, four, six, seven and nine are the same in
both applications.
Thus, the 2003 Application is substantially the same as the 2002 Application,
and Section 39.2(m) of the Act precluded the City’s ability to reviewand decide it.
III.
ADOPTION AND INCORPORATION OF THE
ARGUMENTS RAISED IN
THE
COUNTY’S REPLY BRIEF
WMII hereby adopts and incorporates the
County’s argument regarding (a) the design and
hydrogeologic characterization ofthe site, (b) criterion eight and (c) fundamental fairness,
contained in pages
13 through 38 ofthe County Reply Brief.
CONCLUSION
The City’s August 18, 2003 grant oflocal
siting approval should be reversed on the
grounds that the City lacked jurisdiction to decide the Town & Country siting application, and
for the other grounds set forth by the County in its
opening and reply briefs.
Respectfully submitted,
W
TE MANAGEMENT OF ILLINOIS, INC.
By~/
(
One of Its ~ttorneys
Donald J. Moran
Lauren Blair
Pedersen &
Houpt
161
North Clark Street, Suite 3100
Chicago, Illinois
60601
(312) 641-6888
381926
14
PROOF OF SERVICE
Victoria L. Kennedy,
a non-attorney, on oath states that she served the foregoing REPLY
BRIEF OF WASTE MANAGEMENT OF ILLINOIS, INC.
on the following parties as set
out below:
BradleyHalloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite
11th Floor
Chicago, Illinois
60601
via hand delivery
Edward Smith
Kankakee County State’s Attorney
Kankakee County Administration Building
189 East Court Street
Kankakee, Illinois 60901
viafacsimile transmission
-
(815) 937-3932
Mr. Byron Sandberg
109 Raub Ave
Donovan IL 60931
via electronic transmission-
byronsandberg~starband
net
Mr. Kenneth Leshen
Assistant City Attorney
One Dearborn Square
Suite
550
Kankakee, IL
60901
viafacsimile
transmission
-
(815) 933-3397
Mr. George Mueller
Attorney at Law
501
State Street
Ottawa,IL
61350
viafacsimile transmission
-
(815) 963-9989
Mr. Charles F. Heisten
Hinshaw &
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois
61105-1389
viafacsimile
transmission
-
(815)
963-9989
L. Patrick Power, Esq.
956
North Fifth Avenue
Kankakee, IL 60901
viafacsimile transmission
-
(815) 937-0056
Christopher Bohlen
Barmann, Kramer and Bohlen, P.C.
300 East Court Street,
Suite 502
P.O. Box
1787
Kankakee,
IL
60901
via
facsimile transmission
-
815/939-0994
by electronic transmission to Mr. Byron Sandberg atthe e-mail address noted above and by facsimile transmission
to the parties with facsimile numbers indicated above,
andby depositing a copy thereof enclosed
in an envelope in
the U.S. mail at 161 N. Clark St., Chicago, Illinois
60601
on the
19th day of
January,
2004
and
by hand delivery to
Mr. Bradley Halloran on the 20th dayof January, 2004.
Victoria L. Kennedy
DiM
380744
vi
January 19,
2004
