RECE~VE~

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JAN

2 (~

200’t

EYRONSANDBERG,

)

STATE OF

ILLINOIS

)

Pollution

Control

Board

Petitioner,

)

)

VS•

Case No.

PCB

04-33

CITY OF KANKAKEE, ILLiNOIS, et. al.

)

)

Respondents.

)

)

WASTE MANAGEMENT

OF ILLINOIS,

)

INC.,

)

-

)

Petitioner,

)

)

VS•

Case No.

PCB 04-34

THE CITY OF KANKAKEE, ILLINOIS CITY)

COUNCIL, et

a1.

)

)

Respondents.

)

)

COUNTY OF KANKAKEE, ILLINOIS, et al.,

)

)

Petitioners,

)

)

vs.

)

Case No.

PCB

04-3

5

)

CITY OF KANKAKEE, ILLiNOIS, et

a1.

)

)

Respondents.

)

REPLY BRIEF OF PETITIONERS, COUNTY OF

KANKAKEE

AND EDWARD D. SMITH

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box

1389

Rockford, Illinois

61105-1389

81 5/490-4900

---

TABLE OF CONTENTS

INTRODUCTION

.~.

..

..

2

A1~GUMENT

~.

2.

THE

CITY OF KANKAKEE

LACKED JURISDICTION

TO CONSIDER

THE

LANDFILL SITING APPLICATION

A.

T&C’S 2003

APPLICATION WAS SUBSTANTIALLY THE SAME AS

T&C’S 2002 APPLICATION, WHICH WAS DISAPPROVED BY THE

IPCB

.

2

B.

T&C FAILED TO SEND PROPER 39.2(B) NOTICES TO ALL

OWNERS OF THE SKATES PARCEL

6

C.

THE APPLICATION FILED BY T&C WAS iNCOMPLETE

10

II.

THE

MANIFEST WEIGHT

OF

THE

EVIDENCE ESTABLISHES THAT THE

FACILITY IS NOT PROTECTWE OF

THE PUBLIC HEALTH, SAFETY AND

WELFARE

A.

T&C HAS CONTINUED TO MISCHARACTERIZE THE SITE BY

CREATING AN UNRELIABLE GROUNI)WATER IMPACT MODEL

11

B.

T&C HAS FAILED TO ADEQUATELY ESTABLISH THAT AN

INWARD FLOW AND INWARD

GRADIENT WILL EXIST ON THE

SITE

1.3

C.

T&C CONTINUES TO FAIL TO ACCOUNT FOR FRACTURES IN

THE BEDROCK,

THE VERTICAL GRADIENT ON THE SITE AND

AN INSUFFICIENT MONITORING SYSTEM

17

D.

THE ALLEGED “SENSITWITY ANALYSES” WERE GROSSLY

INADEQUATE

19

E.

THE PETITIONERS’ WITNESSES WERE CREDIBLEAND

COMPETENT

19

F.

THIS BOARD AN) THE LOCAL SITING AUTHORITY CANNOT

SIMPLY DEFER TO THE IEPA

21

III.

T&C’S

APPLICATION IS NOT CONSISTENT

WITH

THE

COUNTY

SOLID

WASTB MANAGEMENT PLAN

.~~.

...

.22

A.

T&C’S APPLICATION IS iNCONSISTENT WITH THE COUNTY’S

PLAN, WHICH SPECIFICALLY PROVIDES THAT ONLY

EXPANSION OF THE EXISTING FACILITY BE ALLOWED

22

B.

THE COUNTY PLAN WAS PROPERLY ENACTED AND IS

CONSISTENT

WITH ALL APPLICABLE STATUTES

23

C.

T&C’S APPLICATION IS INCONSISTENT WITH THE COUNTY’S

PLAN BECAUSE

IT DOES NOT INCLUDE AN APPROPRIATE

PROPERTY VALUE PROTECTION PROGRAM

OR CONTINGENCY

FUND

26

D.

THE

CITY’S OWN WASTE MANAGEMENT PLAN IS IRRELEVANT

26

70391262v1

827167

---

B.

THIS BOARD SHOULD NOT FIND THAT THE COUNTY PLAN IS

UNCONSTITUTIONAL

.

.

..28

1Y.

THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR

29

A.

RESPONDENTS SERIOUSLY DOWNPLAYED THE

FUNDAMENTALLY UNFAIR PROCEDURES

EMPLOYED IN THE

PROCEEDINGS

.~

30

B.

THE ROLE PLAYED BY THE

CITY ATTORNEY RENDERED THE

PROCEEDINGS FUNDAMENTALLY UNFAIR

32

C.

THE CITY COUNCIL’S ACTIONS DEMONSTRATED

PREJUDGMENT OF THE APPLICATION

35

D.

T&C HAD IMPROPER EX PARTE COMMUNICATIONS WITH THE

DECISIONMAKERS

36

CONCLUSION

.~.

~

38

11

70391 262v1 827167

---

RECE~V•ED

CLERK’S OFFICE

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD

JAN

20

20O1~

BYRON SANDBERG,

)

STATE

OF ILLINOIS

)

Pollution

Control

Board

Petitioner,

)

)

vs.

)

)

CITY OF KANKAKEE, ILLINOIS, THE CITY)

Case No.

PCB

04-33

OF KANKAKEE, ILLINOIS CITY COUNCIL,)

TOWNAND COUNTRY UTILITIES, INC.,

)

and KANKAKEE REGIONAL LANDFILL,

)

L.L.C.,

)

)

Respondents.

)

WASTE MANAGEMENT OF ILLINOIS,

)

INC.,

)

)

Petitioner,

)

)

vs.

.

)

)

Case No.

PCB 04-34

THE CITY OF KANKAKEE, ILLINOIS CITY)

COUNCIL, TOWN AND COUNTRY

)

UTILITIES,

INC., and KANKAKEE

)

REGIONAL

LANDFILL, L.L.C.,

)

)

Respondents.

)

COUNTY OF KANKAKEE, ILLINOIS and

)

EDWARD D. SMITH, KANKAKEE COUNTY)

STATE’S ATTORNEY,

)

)

Petitioners,

)

)

vs.

).

)

Case No.

PCB 04-3

5

CITY OF KANKAKEE, ILLiNOIS, THE CITY)

OF KANKAKEE, ILLINOIS CITY COUNCIL,)

TOWN AND COUNTRY UTILITIES, INC.,

)

and KANKAKEE REGIONAL LANDFILL,

)

L.L.C.,

)

Respondents.

)

70391262v1

827167

---

REPLY BRIEF OF PETITIONERS, COUNTY OF

KANKAKEE

AND

EDWARD D. SMITH

NOW COMES

Petitioners, COUNTY OF KANKAKEE

and EDWARD

D.

SMITH,

and

as

and for their Reply Brief, responding to

the briefs

filed by Town and

Country Utilities,

Inc.

and City ofKankakee, state as follows:

INTRODUCTION

On January

9,

2004,

Respondents,

Town and

Country Utilities,

Inc.

(T&C)

and City of

Kankakee (City)

filed briefs

in

response

to

the

initial

brief filed by

the

County of Kankakee

(County),

which was adopted in its

entirety by Waste Management of Illinois,

Inc.

In its brief,

the City adopted and incorporated the portions ofT&C’s briefrelated to the

City’s jurisdiction to

hear the application and the City’s

findings with respect to

criteria ii and

viii.

Therefore,

where

the County makes reference to T&C’s brief on those issues, those references

are also

relating to

the

City’s

brief,

which

adopted

and

incorporated

such

arguments.

With

respect

to

the

fundamental fairness

issue, the City drafted its

own argument,

and the County responds to both

T&C’s brief and the City’s brief on that issue, as set forth more fully below.

ARGUMENT

I.

THE

CITY

OF

KANKAKEE

LACKED

JURISDICTION

TO

CONSIDER

THE

LANDFILL SITING APPLICATION.

A.

T&C’S

2003

APPLICATION

WAS

SUBSTANTIALLY

THE

SAME

AS

T&C’S

2002

APPLICATION,

WHICH

WAS

DISAPPROVED

BY

IPCB.

As

set

forth

in section 39.2(m)

ofthe Illinois

Environmental Protection Act

(Act):

“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 of criteria

(i)

through

(ix)

of subsection

(a)

of this

Section

within

the

preceding

2

years.”

415

ILCS

5/39.2(m).

Despite

this

provision,

T&C

filed

an

application

on

March

7,

2003

that

was

2

70391262v1 827167

---

substantially the same

as an

application

it filed on March

13,

2002,

which

was disapproved by

the Illinois Pollution Control Board for failing to satisfy criterion ii.

T&C attempts to

argue that

section 39.2(m)

does not preclude

its

2003

Application for

two

reasons.

First,

T&C

contends

that

a

“disapproved”

application

can

only

be

one

that

is

disapproved by the local

siting authority.

Second, T&C contends that its 2003 application is not

substantially the same

as its

2002

application.

For the reasons set

forth below,

both

of these

arguments lack merit.

Turning to T&C’s

first argument,

it is clear that

section 39.2(m) precludes the filing

of a

subsequent application if any body

or court disapproves of the application

for failing to

satisfy

the criteria set forth

in

3 9.2(a) of the

Act.

This

is

true based on

the plain

language of section

39.2(m), which

refers to

an

application that was “disapproved pursuant to

a finding against the

applicant under any ofthe criteria (i)

through

(ix) of subsection

(a) of this Section.”

415

ILCS

5/39.2(m).

Nothing in section 39.2(m) provides that the application must be disapproved by the

local

siting

authority,

as T&C contends.

If the

legislature had

intended

that to

be

the

case,

it

surely would have specified

as much and specifically provided that only disapproval froni a local

siting authority would preclude the

filing of a new application.

However, the legislature clearly

did not

so provide and,

instead,

set

forth

that

any

disapproval based

on

“a finding against the

applicant” that any ofthe criteria contained in 39.2(a) ofthe Act was not met would preclude the

filing of a new application that was substantiallythe same within 2 years.

It

is

clear

that

in

Town

&

Country I,

PCB

03-31,

33,

35

(Jan.

9,

2003), the

Illinois

Pollution

Control Board

(Board)

disapproved

T&C’s

application pursuant

to

its

finding against

T&C that

criterion ii of section 39.2(a) was not met.

Based on that finding, T&C was precluded,

pursuant

to

section

39.2(m),

from

filing

its

application

in

2003.

In

fact,

this

Board

has

3

70391262v1 827167

---

previously

implied

that

disapproval

by

the

Board

of a

siting

application

will

trigger

section

39.2(m) of the Act.

See Turlek

v.

Village ofSummit,

PCB

94-19, 21, 22

(May

5,

1994) (noting

that section 39.2(m)

would have applied if the Board had found that the applicant failed to satisfy

the

statutory

criteria);

Slates

v.

Illinois

Landfills,

Inc.

PCB

93-106

(Sept.

23,

1993)

(dissent)

(noting

that

the

Board’s

reversal of siting

approval

pursuant to

criterion

i

triggered

section

39.2(m)

and

precluded

the

applicant

from

reinstituting

its

application

for

two

years).

Furthermore, T&C has admitted in

its own brief that the Board

can

“disapprove”

an

application

after

it has been

approved by

the

local

siting

authority.

See

T&C’s

Brief,

p.

93

(arguing

that

Waste Management did not

receive

“approval” of its application because the local decision was

reversed by the Board).

It is well-settled that in interpreting statutes,

courts must rely on the plain meaning ofthe

language contained therein.

See Laidlaw

Waste

Systems, Inc.

v.

Pollution

Control Board,

230

Ill.App.3d

132,

135,

595

N.E.2d

600,

602

(5th

Dist.

1992)

(examining the

plain

language of

section 3 9.2(m)

and

finding it to

be

clear

and unambiguous).

The plain

meaning of the word

“disapprove”

is

“to pass unfavorable judgment on;

to refuse approval to; reject.”

Webster’s Ninth

New

Collegiate Dictionary,

359

(1985).

Clearly, the Illinois Pollution Control Board,

as a body

with

expertise

in landfill

siting,

is

given the task of approving or disapproving applications by

reviewing the decisions oflocal hearing bodies to determine if the local decisionmakers properly

granted or

denied

siting

approval

to

a

particular

applicant.

In

its

task

of reviewing

such

applications, the Board is not simply an

appellate reviewer but, rather, holds expertise in the area

oflandfill siting that it uses to

approve or disapprove landfill siting applications.

Pursuant to the

plain

meaning

of “disapproved”,

T&C’s

2002

application

was

“disapproved”

by

the

Illinois

Pollution

Control Board in

Town

&

Country I

because the Board found that the application

did

4

70391262v1

827167

---

not meet the criterion

set forth in section 39.2(a)(ii) and,

therefore, passed unfavorable judgment

on

that

application,

rejected

that

application

and

refused

to

approve

that

application.

That

disapproval prohibited T&C from filing its 2003

application, which was substantially the same as

its disapproved 2002 application.

Turning

to

T&C’s

second

argument,

it

is

clear

that

T&C’s

2003

application

is

substantially the same as its 2002 application.

In fact, T&C’s contention that its 2003

application

is

not

substantially

the

same

as

its

2002

application

is

not

even

supported

by

T&C’s

own

witnesses.

While T&C relies on the testimony ofDevin Moose for support ofits

contention that

its application is

different from its previous

application, T&C fails to point out that Devin Moose

admitted that the 2003

application

proposed a landfill with the same legal

description, the same

size, the same capacity, the same daily tonnage, the same waste footprint, the same storm water

management

plan,

the

same

closure

and

post-closure

care

plan,

the

same

description of the

operating

experience of the operator, the same geotechnical

analysis, the same inward gradient

design,

the

same

composite

liner (with

the

exception of

an

optional

feature),

the

same final

contours and cover configurations, the same excavation and liner grades,

and

the same average

thickness ofthe structural fill

as was contained in the 2002 application.

T&C II, 6/26/03 Tr. Vol.

3-A, 28-33.

The slight

differences

in the

2002

and

2003

applications pointed

out by Mr.

Moose are

overshadowed by Mr.

Moose’s

admission that the design, location

and

operating plan contained

in

the

2003

application

were

either

exactly

the

same

as

or substantially

the

same

as

those

contained in

the

2002

application.

T&C II,

6/26/03

Tr.

Vol.

3-B,

36.

T&C’s

other witness,

David

Daniel,

agreed

with

Mr.

Moose’s

conclusion

that

the

design

of

the

landfill

was

substantially

the

same,

the

location of the

landfill

was

exactly

the

same

and

the

plan

of

5

70391262v1

827167

---

opeTations was substantially the same as the application filed in

2002.

T&C II, 6/26/03

Tr.

Vol.

3-B,

117.

Because T&C’s own witnesses testifiedthat the 2003

application was substantially the

same

as

its 2002

application, it was clearly against the manifest weight ofthe evidence

for the

CityCouncil

to

find otherwise.

Since the undisputed evidence establishes that T&C filed an application in

2003 that was

substantially the same as the application it filed in 2002, pursuant to

section 3 9.2(m) ofthe Act,

the

Kankakee

City

Council

(City

Council)

had

no

jurisdiction

to

consider

T&C’s

2003

application.

B.

T&C FAILED

TO

SEND

PROPER

39.2(b) NOTICES

TO

ALL

OWNERS

OF THE

SKATES PARCEL.

T&C

contends that

service on

only

one

owner, when

several owners were listed

.in

the

authentic tax records,

was somehow consistent with the requirements ofthe

Act.

However, this

is

clearly not the

case.

In support of this contention, T&C relies on this Board’s ruling in

Town

&

Country I,

that notice provided only to

Judith

Skates was appropriate because the tax records

were

in

conflict

between

various

offices

of County

Government.

However,

the

clear

and

unrefuted

evidence presented in

this

case shows

that

no

conflict existed

in

the

tax records

of

Kankakee County because the various County offices actually shares a database and possess

the

same records.

PCB

II, Pet.

Exs.

9,

10,

H.O.

Ex.

1.

Therefore,

this

Board’s finding in

Town

&

Country I

cannot form the basis for this Board to conclude that notice to Judith

Skates alone was

adequate.

Instead,

this

Board

should

find

that

the

uncontradicted

tax

records

of Kankakee

County require that notice be provided to

all of the owners contained in the official tax records,

which T&C failed to

do.

In

this

case,

it

is

undisputed

that

notices

were

not

sent

to

the

address

listed

in

the

authentic tax records for five ofthe

six owners ofthe Skates property.

Rather, two notices were

6

70391262v1

827167

---

sent

to Judith Skates at her Onarga address, one in her name alone and one

in the names ofall of

the

other owners

of the

property,

“c/o of Judith

Skates”,

even though

those

owners

had

not

completed any change ofaddress form establishing the Onarga address as their new address.

T&C attempts to

argue that the change ofaddress card provided by Ms.

Skates somehow

created a conflict in the authentic tax records ofKankakee County.

However, that

is

clearly not

the case because the change of address card completed by Ms.

Skates could only serve to change

her address, not

the addresses of the other owners of the property.

PCB II,

12/2/03

Tr.

62.

As

explained by the Chief County Assessment Officer for Kankakee County, Ms.

Skates

could not

have changed the addresses ofthe other owners ofthe property because Ms.

Skates did

not have

a power ofattorney or actual authority to do so.

Id.

at 62-63.

T&C ignores this point and asserts

that

because

the

change of address

form

contained the identifying

number of the parcel,

this

somehow suggested that the change ofaddress form was effective for all owners ofthe property.

Such

an

argument

is

nonsensical.

Clearly,

the change of address form

had to

indicate a parcel

number, so that it could be filed appropriately.

The listing ofthat parcel number did not in any

way establish that the change ofaddress was effective for anyone but Ms.

Skates, the one owner

listed on the form.

T&C further asserts that the tax records somehow “provide two

conflicting addresses for

the

owners as well

as

conflicting information as

to

who the

owners

are”

of the

Skates

parcel.

T&C

Brief,

p.

12.

T&C’s

contention

that

there were

conflicting

addresses

for the owners

of

property is

completed unfounded.

The fact that the authentic tax records showed that there were

two

different

addresses for the property

owners of the Skates parcel,

one being the Rock Falls

address

and

one being

the

Onarga

address,

does

not

create

a

conflict

in

the

tax

records

of

Kankakee County.

Rather, such a situation is probably quite

common because owners often

do

7

70391262v1

827167

---

not

reside

at

the

same

address.

T&C’s

contention

that

there

was

conflicting

information

regarding the owners ofthe Skates parcel is

also completely untrue because it is uncontested that

there

were

six

owners of that property listed in the tax

records,

and T&C

admitted as much by

writing each owner’s name on a single

envelope that was sent to Judith Skates’ address.

T&C next asserts that it was appropriate to provide notice to

only Judith

Skates because

there

were

flags

specifying that

tax bills

and

certain

specific

notices

were

to

be

sent

to

only

Judith Skates.

This argument, however, ignores the plain language contained in section 39.2(b).

Section 39.2(b) requires that notice be

served

“on

the owners of all property within the

subject

area not

solely owned by

the

applicant

.

.

.

said

owners being such persons

or entities which

appear from the authentic tax records ofthe County in which such facility is to be located.”

415

ILCS

5/39.2(b).

T&C would

have

a new requirement written into this

section,

providing that

notice only has to be

sent to the owner who is to receive the tax bill for the property.

However,

section 39.2(b) does not contain such a requirement.

Rather, section 39.2(b) provides that notice

be

sent to

~jj persons or entities

listed

in the authentic tax records.

Therefore,

the fact that Ms.

Skates was designated to receive the tax bill for the property has no relevance to the notice that

is

required

to

be

provided

in

a

landfill siting hearing.

Pursuant

to

the Act,

such notice

is

to

be

given to all owners, not just those owner or owners receiving the tax bill for the property.

In support of its position that only Ms.

Skates should have received notice, T&C relies on

Wabash

&

Lawrence

Counties

Tax

Payers

and

Water

Drinkers’ Assoc.

v.

Illinois

Pollution

Control Board,

198

Ill.App.3d

388,

554

N.E.2d

1081

(5th

Dist.

1990).

However, that

case

is

clearly distinguishable

because

in

Wabash

only

one

of the

owners

was

listed

by

name

and

address.

In this case, however,

all of the property owners were listed by both name and address.

T&C

simply

chose

not

to

provide

notice

to

the

address provided

for five

of those

property

8

70391262v1 827167

---

owners.

Therefore,

Wabash

is

not

controlling

and

does

not

stand

for

the proposition

that

an

applicant can simply decide not to provide notice to

owners listed in the authentic tax records.

T&C

contends that

it would

have been inappropriate

to

send notice

to

the Rock

Falls

address because a private process server allegedly attempted personal service on the Rock Falls

address

and

was told

that none of the

listed

owners

lived

at that

address.

T&C Brief,

p.

11.

However, that process server was also

told that the owners, other than Ms.

Skates, did not live at

the Onarga address.

PCB I,

11/6/02 Tr. 286-287.

Therefore,

T&C’s

argument must fail because

while

T&C

may have

had

reason

to

believe

that

the

owners

did

not

live

at the

Rock

Falls

address,

T&C

also

knew that

the

owners,

other

than

Ms.

Skates,

did

not

live

at the

Onarga

address.

In

fact, T&C made

no

effort

to

determine the actual addresses of these individuals.

PCB

II, Pet.

Ex.

23,

p.

51.

As

such, T&C should not be

allowed to

willfully ignore the service

requirement.

Finally,

T&C

suggests

that

the

notices

sent

in

this

case

were

consistent

with

the

requirements of

City of Kankakee v.

County of Kankakee,

PCB 03-125, 133,

134

(Aug.

7, 2003)

because notices were

sent to

“~~Jj”

ofthe owners ofthe Skates parcel.

T&C Brief, p.

14.

This

implies

that

six

notices were

sent

to

Ms.

Skates’

address;

however,

that

is

clearly not

the

case.

Actually,

only two

separate

notices were

sent to

Ms.

Skates’

address

—

one

addressed

to

Judith

Skates

and

one

addressed

to

all

of the

other

owners

“do

of Judith

Skates.”

T&C

II

App.,

Append. B, Ex.

C.

Such notices do not

comport with this Board’s requirements

set

forth in

City

of Kankakee

that separate notices be provided

to

each landOwner.

See

sup

op.

at

16-17 (noting

that “Mrs. Keller was not sent a notice by certified mail” even though her husband received one).

As

such,

this

Board

should

find

that

T&C

failed

to

provide

the

appropriate

notices

to

each

landowner as required by section 39.2(b) ofthe

Act.

9

70391262v1

827167

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Sending only one notice to a number of owners is not only inconsistent with

this Board’s

decision in

City ofKankakee,

but it is

also

inconsistent with

section 39.2(b)

of the Act,

which

requires that

all

owners be

sent notice.

Sending

one notice to

multiple

owners does not ensure

that all owners actually receive notice because one

owner could simply sign for the certified mail

notice

and never

show it

to

the

other owners,

as Ms.

Skates

did

in this

case,

thereby,

leaving

multiple

property

owners without notice

that

a

landfill could potentially

be

sited next

to

their

property.

Because it is

clear that T&C was required to

provide notice to

each of the owners of the

Skates

parcel

identified

in

the

County

tax

records

and

not

simply

to

one

owner,

the

notices

provided

by

T&C

were

inadequate.

Therefore,

the

City of Kankakee

lacked jurisdiction

to

consider T&C’s siting application.

C.

THE APPLICATION FILED BY T&C WAS INCOMPLETE.

T&C

contends that

the

application

it

filed was

complete

and

attempts to

lambast

Mr.

Schuh

for

stating

otherwise.

However,

T&C

conveniently

forgets

to

point out

that

its

own

witness

admitted

that

there

were

important

documents

missing

from

the

application.

Mr.

Drommerhausen

specifically

admitted

that

he

did

not

include

his

sensitivity

analyses

in

the

application

and

stated

that

he

should

have

done

so.

T&C

II,

6/28/03

Tr.

Vol.

5-A,

77.

Additionally, Mr. Mueller himself concedes that there were significant documents left out of the

application because he specifically relied on a model

that was not contained in the application to

support his position that the facility would be protective ofthe public health,

safety and welfare.

T&C Brief, p.

61.

The absence of these documents was significant because without those documents T&C’s

application

did

not

contain

“the substance

of the

Applicant’s proposal”

as

required by

section

39.2(c) of the

Act,

415

ILCS

5/39.2(c).

The applicant proposes to

remove in situ material

and

10

70391262v1 827167

---

build the landfill on

and in the aquifer serving many wells of Kankakee County.

Therefore, it is

very

important

that

the

applicant’s

findings

be

tested

in

sensitivity

analyses.

Without

these

analyses, it impossible to

determine if the proposed facility would

be protective of the public

health, safety and

welfare, as specifically found by Mr. Schuh.

T&C II, 6/27/03

Tr.

Vol. 4-C,

p.

18.

Because important documentation was excluded from

the application

and not available for

review by the respondents prior to the siting hearing, the application was incomplete.

Therefore,

the City Council lacked jurisdiction to consider it.

II.

THE

MANIFEST

WEIGHT

OF

THE

EVIDENCE

ESTABLISHES

THAT

THE

FACILITY

IS

NOT

PROTECTIVE

OF

THE

PUBLIC

HEALTH,

SAFETY

AND

WELFARE.

A.

T&C

HAS

CONTINUED

TO

MISCHARACTERLZE

THE

SITE

BY

CREATING AN UNRELIABLE GROUNDWATER IMPACT MODEL.

The

opinions

by

T&C’s

witnesses

on

criterion ii

are dependent

upon

the

groundwater

model

created with

respect

to

this

site.

If that

groundwater

model

is

incorrect

in

any

way, it

affects the safety ofthe site.

In this case,

the groundwater impact model was unreliable and was

not based

on

“conservative assumptions”

as suggested by T&C.

As

a result, T&C has failed to

establish that its facilitywill be protective ofthe public health, safety and welfare.

T&C

contends that

it adequately characterized the hydrogeology of the site

and

made a

“number of conservative assumptions”

in

groundwater modeling.

T&C

Brief,

p.

56.

However,

that

is

clearly not

the case because T&C failed to examine how changes in permeability, which

definitely exist at the site, would impact the groundwater model.

Mr. Drommerhausen testified

that the distinction between weathered and competent bedrock is really based on the permeability

test results with the area identified as the weathered zone having an average permeability of 5.3

x

1

x

10~

cm/sec,

and the competent zone having a permeability of 1.13 x

1

x

10~

cmlsec. T&C II,

6/24/03

Tr.

Vol.

1-C,

p.

115.

Mr. Drommerhausen also testified that the penneabilities

in the

11

70391262v1 827167

---

Silurian Dolomite Aquifer vary greatly depending upon

location. T&C II, 6/24/03

Tr. Vol.

1-B,

~.

g~.In fact, the data in the application demonstrates that the permeability in the bedrock varies

by over 60,000

times.

T&C II,

6/27/03

Tr.

Vol.

4-B,

p.

115.

Because the permeability of the

aquifer varies greatly, T&C should have performed a sensitivity analysis to

assess the impact of

changes

in

permeability

on

groundwater

impact.

The

fact

is

that

the

groundwater

model

contained

in

the application

was run only for a bedrock permeability of 1.13

x

1

x

10~

cm!sec,

and

no

variations

were

made

in

the

application

to

assess

the

impact

of

permeability

on

groundwater impact.

As

such, that groundwater model was inherently unreliable.

T&C

also

failed to provide

an

adequate sensitivity

analysis

on the groundwater model.

Mr. Dronimerhausen testified that modeling the aquifer as only being

10 feet thick for purposes

of the groundwater impact assessment means that there will be less water to dilute the theoretical

contaminants released from

the facility in

the model run.

T&C II,

6/25/03

Tr.

Vol.

2-B,

p.

42.

However, reducing, the aquifer thickness, as well

as reducing the effective

and total

porosities,

results

in

less

water available

to

dilute

contaminants

that

diffuse

from

the landfill,

and

that

is

precisely why a sensitivity analysis should

have been run on the parameters used in

the model.

Reducing the porosity ofthe bedrock by 25

and leaving the aquifer thickness as

10 feet reduces

the

water

available for dilution

by 25.

This,

coupled with the fact.that the Application

states

that T&C will remove all

weathered bedrock (and thereby leave only the unweathered bedrock

which by Dronimerhausen’s testimony has a lower permeability)

clearly demonstrates

that T&C

did

not

perform

due

diligence

for the

assessment

of groundwater impact.

The Applicant

is

merely saying “Trust us,” which is especially problematic because T&C’s last application did not

propose a landfill that was protective of the public health,

safety and welfare, as

found by this

Board.

12

70391262’vl 827167

---

T&C

missed

the

point

of Mr.

Schuh’s

testimony

regarding

primary

and

secondary

porosity.

Mr.

Schuh

testified that

the

Applicant

did, not

measure

the secondary porosity,

and

testified that

there

is

no

simple

test that can be performed

to

measure secondary porosity.

Mr.

Schuh criticized T&C’s use ofthe incorrect porosity and not running a sensitivity analysis

on the

possible ranges in porosity.

T&C II, 6/27/03

Tr.

Vol.

4-C,

p.

31.

Because ofthis,

and the fact

that the “Hydrogeolgist’s Bible” states that porosity can vary for dolomite, it was the Applicant’s

duty to

evaluate the sensitivity of the model to

porosity,

because the Applicant

does not know

what actual variations

exist below the landfill and what the fracture spacing and sizes

are.

Mr.

Schuh

was not

criticizing the Applicant for not performing field

tests

to

determine secondary

porosity, but was criticizing the Applicant for not considering the impact of secondary porosity

on the model results.

Because the actual value is

unknown, it was incumbent on the Applicant to

address the impacts of porosity on model results, which T&C did not do.

B.

T&C HAS FAILED TO

ADEQUATELY ESTABLISH THAT

AN

INWARD

FLOW AND INWARD GRADIENT WILL EXIST ON THE SITE.

As

is

made

clear

from

T&C’s

brief,

the

safety

and

operation

of T&C’s

landfill

is

dependent

upon

its

inward

gradient

design.

T&C Brief,

pp.

61,

64

and

68

(explaining that

certain features are irrelevant based on the inward

gradient of the facility).

In fact, T&C’s star

witness admitted that all of his

opinions were premised on the maintenance of an inward gradient

at the facility.

T&C II, 6/28/03

Tr.

Vol.

5-A,

p.

137.

However, T&C has failed to

adequately

establish

that

an

inward

flow

and

inward

gradient will

exist

and

be

maintained.

This

is

true

because

T&C’s

witnesses

used

miscalculations

and

mischaracterizations

to

support

their

conclusions that the inward flow and inward gradient would exist.

T&C goes so far as to

even mischaracterize what an inward gradient is.

In its brief, T&C

states

that

an inward

gradient

is

nothing more than the difference between the potenitiometric

13

70391262v1 127167

---

head

and the level of the leachate

in the landfill where the head in the bedrock is

higher.

T&C

Brief p.

54.

This description is inaccurate because the gradient is actually the difference in head

divided

by the thickness of soil

between the measured heads.

Therefore, if there is

a massive

flaw

in

the liner system,

water would

tend

to

flow

into the landfill.

However, T&C

has not

performed adequate analyses to

demonstrate that a properly constructed liner system will reverse

the flow ofwater in the aquifer and provide the necessary protection from leachate impact due

to

diffusion.

Because T&C failed

to

adequately establish

that the flow at the site will be reversed,

T&C

cannot

establish

that

the

groundwater will

not

be

contaminated

and,

therefore,

cannot

establish that the facility is protective ofthe public health, safety and welfare.

T&C

asserts

that

Dr.

Daniel

established

that

the

existing

downward

flow

would

be

reversed.

However, when Dr. Daniels’

created his “trivial”

calculation and

subsequent

“on the

fly” analysis (T&C Brief, p.

65),

he used information in the application that is not consistent with

this testimony.

Dr.

Daniel used information that suited his

intended outcome,

rather than using

data

that

would

demonstrate

that

a

competent

liner

system

will

not

cause

a

reversal

of

groundwater flow in the aquifer.

Therefore, that “analysis” is not reliable.

Dr.

Daniel

compared

post-construction’ flow

into the

landfill

with

flow

underneath

to

create his

“trivial calculation.”

T&C

II, 6/28/03

Tr. Vol.

5-A, p.

133.

Dr. Daniel purported that

this

analysis

resulted

in

the

landfill being

able

to

trap

35

times

more

flow

than

what

flows

underneath

the

landfill.

Id.

at

130.

However,

there

are

many

deficiencies

with

this

“trivial

calculation.”

First,

Dr. Daniel used the inflow rate provided in Appendix K of the application.

This

inflow rate assumes

the

liner is

severeJy

flawed

and

was performed by

the Applicant

to

design

the leachate

collection

system,

not

to

evaluate the impact

of the landfill

on

the aquifer.

The application even states that “the Construction

Quality Assurance Program

assures

that

this

14

70391262v1 827167

---

will not occur” (Application Page 2.3-12) and, therefore,

this calculated rate offlow is irrelevant

to the calculation performed by Dr. Daniel. (Using this percentage ofliner flaw, there would be a

hole 20

square feet in

size for each acre of liner.)

The inflow rate used by Dr.

Daniel

in

his

“trivial

calculation”

is

not

associated

with

the

proposed

liner

system,

and

specifically

the

properties testified to

by Moose.

The value significantly overestimates the seepage rate, leading

to

his

incorrect conclusion.

Secondly, the compacted backfill and clay liner components will

inherently be

compacted

to permeabilities significantly lower that

the maximum specified.

This

will

result

in

significantly

lower

inward

flow

velocities,

which

will minimize

the

seepage of

water

into the landfill.

Thirdly,

if Dr.

Daniel were

correct

in his

presumption

that the gradient

will be reversed and inflow to

the landfill is

significantly greater than the ability ofthe aquifer to

supply

groundwater,

then

he

is

admitting

that

the landfill will be

withdrawing water

from

the

aquifer

faster than

it

can be

replenished,

which

will

ultimately result in

the

lowering

of the

potentiometric

surface,

which,

over

time,

could

result

in

an

outward

gradient

condition.

Therefore,

regardless

of the position taken, the

Applicant

cannot

assume

that

the aquifer will

reverse flow

and

that

there

is

no

potential

for advective

flow

in

the

aquifer away

from

the

landfill.

Dr. Daniel testified 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.”

T&C II, 6/26/03

Tr.

Vol.

3-B,

pp.

73,

74.

However, Dr. Daniel

confused the inward

gradient in the compacted backfill with the gradient in the aquifer.

While

there will be

an inward gradient in the compacted backfill and the compacted clay located below

the HDPE

liner,

inward

gradient

does

not

translate to

inward

flow.

Inward

seepage,

at

an

extremely slow

rate, may occur,

but

no

data provided by

the Applicant

supports

Dr.

Daniel’s

15

70391262v1 827167

---

hastily made conclusion that this rate will essentially deplete the aquifer.

There

is

inadequate

evidence

to

suggest

that

the

gradient

in

the

aquifer will

reverse,

which

is

the

basis

for

the

Applicant concluding that groundwater will not be impacted.

As

further evidence ofT&C’s mischaracterizations of the site, Dr. Daniel testified that the

permeability ofbedrock at the site 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

tending

to

overcome

diffusion.

This

statement

is

false,

and

demonstrates

that

Dr.

Daniel

did

not

fully

evaluate

and

appreciate

the

site conditions.

The

velocity

in

the bedrock

has nothing

to

do

with

the

velocity of water into

the

landfill.

The

velocity ofwater into the landfill depends solely

on the hydraulic

conductivity of the complete

liner system,

the inward gradient,

and the effective porosity ofthe liner system.

The confusion

by

Dr.

Daniel,

and

his

misuse

of information

in’ the

application

to

perform

his

“on

the

fly”

calculations

led

to

his

incorrect

conclusions.

Furthermore,

Dr.

Daniel

testified that

bedrock

permeabilities.only serve

to increase the driving force of groundwater into the landfill; however,

this

is

also

untrue.

The

permeability

of bedrock

has

no

relationship

with

the

velocity of

groundwater moving up and into the landfill, unless the permeability ofbedrock is lower than the

permeability ofthe liner system, which, by the Applicant’s own testimony, is

not the case.

The

driving force of water into the landfill is the difference between the head in the aquifer and the

head in the landfill, and has nothing to do with the permeability ofthe aquifer.

Further, T&C relies on incorrect features ofthe liner to

establish that the downward flow

presently existing on

the site will be reversed.

In its brief, T&C asserts that the composite liner

system of the proposed facility will consist ofa 60 mil HDPE liner, 3

feet ofcompacted clay, and

an

average

of 4.5

feet of structural

backfill, with

the clay and backfill compacted to

achieve

a

16

70391262v1

827167

---

coefficient ofhydraulic

conductivity ofno more than

1

x

1 0~

cmlsec.

T&C Brief, p.

51.

While

this

information is consistent with the application, it is not consistent with the data used by Mr.

Moose, Mr. Drommerhausen, and

Mr.

Daniel to

determine the effectiveness ofthe liner system

to

prevent the movement of contaminants out of the landfill

and into the aquifer.

Specifically,

this data was not used in their determination of the ability ofthe landfill to reverse the flow in the

bedrock

aquifer.

This

is

significant because if the inward

gradient

is

not

created or properly

maintained by reverse flow, all ofthe opinions presented by T&C’s witnesses are invalid.

C.

T&C

CONTINUES

TO

FAIL TO

ACCOUNT

FOR FRACTURES IN

THE

BEDROCK,

THE

VERTICAL

GRADIENT

ON

THE

SITE

AND

INSUFFICIENT MONITORING SYSTEM.

T&C

has

failed

to

establish

that

contamination

will not

flow

through

fractures in

the

bedrock.

Mr.

Drommerhausen testified that

since

the permeabilities obtained

from

field scale

measurements

at the

site are approximately 3

orders of magnitudes higher (than the laboratory,

tests),

the fractures in the Dolomite increased the permeability of that unit by a factor ofat least

1,000.

T&C Brief, p.

63.

However, such testimony shows that Drommerhausen is confusing

the

vertical

permeability

(permeability

vertically

through

bedding

planes)

with

the

permeability

along bedding planes.

There

is

no

data in

the

application providing

the permeability through

fractures, which is a significant concern, as was noted by this Board in

Town

& Country I..

Additionally, just

as it did at the

siting hearing, T&C again erroneously

alleges

that the

downward gradient present at the site

is

“very

slight.”

T&C Brief,

p.

64.

However, this

is

not

supported by the evidence.

Although Mr. Drommerhausen characterized the downward gradient

as so

slight that it cannot be measured (T&C II, 6/25/03

Tr. Vol. 2-B,

p.

50), this is only because

Mr.

Drommerhausen

conveniently

used

only

one

value

that

was

measured.

If

Mr.

Dronirnerhausen had used the November 8,

2002

readings, there is no conceivable way he could

make

this

statement

because

the

difference

in

head

was

0.27

feet,

or

over

3

inches.

17

70391262v1 827167

---

Conventional surveying techniques

can measure to

the nearest 0.01

feet.

Therefore,’ his assertion

that such a gradient was so slight that it could not be measured was completely untrue.

T&C

also

fails

to

establish

that its

groundwater monitoring

system is

adequate.

While

Dr.

Daniel

testified

that

it

would take

a

contaminant particle between

500

and

1,000

years

to

diffuse

downward

even

30

feet

(T&C

Brief,

p.

66),

Dr.

Daniel

provided

no

basis

for

this

statement, nor any information on the conditions for which this statement pertains. Contaminant

concentration,

contaminant

type,

and

other factors

impact the

diffusion

rate.

The

Applicant’s

own Exhibit

14

shows

that

25

of a contaminant

concentration

can move completely through

the liner system

in

130 years.

Therefore, T&C’s assertion that it will take 500

to

1,000

years for

contamination to

flow beneath the site is unreliable.

T&C’s

brief

takes

Mr.

Schuh’s

testimony

regarding

groundwater

monitoring

out

of

context.

T&C

Brief,

p.

72.

Mr.

Schuh

testified

that

the

computer

model

by

the Applicant

indicated

that

groundwater

will

be

impacted

at

the

monitoring

wells

such

that

additional

monitoring and

assessment would be required.

T&C II, 6/27/03

Tr. Vol. 4-C,

p. 21.

This was in

response

to

Mr.

Mueller’s

question

if

the

groundwater

impact

assessment

failed

fOr

some

constituents.

Mr.

Schuh

provided

his

opinion

that

the assessment

failed

to

demonstrate

that

groundwater will be protected because the model

predicted that groundwater will be impacted at

the

monitoring

well

locations

such that

the

Maximum

Applicable Predicted

Concentration

is

exceeded.

If this

were

to

occur,

additional

monitoring

and

assessment

could be

required

to

demonstrate

compliance with

regulatory requirements.

Again,

additional

analyses should

have

been performed, and

the analyses in the application were insufficient to verify that grol4ndwater

will not be impacted.

18

70391262v1 827167

---

D.

THE

ALLEGED

“SENSITIVITY

ANALYSES”

WERE

INADEQUATE.

T&C

tries to

argue that performing two model runs using different bedrock thicknesses is

a

sensitivity

analysis.

T&C Brief,

p.

69.

However,

this

is

not

true

because

changing one

parameter, one

time,

is not

considered a

sensitivity

analysis, and

is

not

adequate

to

determine

with confidence that the landfill will not impact groundwater quality.

Mr. Drommerhausen claims that Exhibit 14

represents a sensitivity analysis for the worst-

case scenario.

T&C Brief, p.

73.

This

is absurd.

The analysis performed in Exhibit

14 had only

one

parameter

different

than the

base

case provided

in

the

application.

The

only parameter

changed was the horizontal velocity in the bedrock,

and the value was set to zero.

No analyses

were performed for changes in porosity, changes in permeability, and changes

in gradient.

These

analyses are needed to

demonstrate that the landfill will protect groundwater

quality.

(Hrg.

Tr.

Volume C, Pages 14,

15).

E.

THE

PETITIONERS’

WITNESSES

WERE

CREDIBLE

AND

COMPETENT.

T&C

glorifies its

own witnesses and questions the credibility ofthe Petitioners’ witness

in

an attempt to undercut the convincing testimony from the County’s expert.

In fact, T&C fails to

point out that two of its

own witnesses, Dr. Daniel and

Mr. Drommerhausen have never before

submitted applications for new landfills or been personally involved in the design’ or engineering

oflandfills.

T&C II, 6/24/03

Tr.

Vol.

1-C,

p.

56-58;

6/26/03 Tr. Vol.

3-B,

p.

114.

Furthermore,

T&C fails to point out that the Petitioners’ witnesses at the siting hearing each have over 20 years

of experience in their respective professions, as a professional engineer and hydrologist.

T&C II,

6/27/03 Tr.

Vol. 4-A, pp.

20-21; 4-B,

p.

105.

T&C

also mischaracterizes

and misrepresents the testimony ofthe

County’s witnesses in

order to

support their position.

For example,

T&C asserts that Steven Van Hook, who testified

19

70391262v1 827167

---

in

Town

&

Country I,

somehow supported T&C’s

application

with his testimony.

However, this

is

clearly not the case.

Rather, Mr. Van Hook’s

comments were greatly taken out ofcontext.

For

example, while Mr. Van Hook indicated that the facility was “over-designed,” he was referring to

the fact that

it had

to be

because it was located directly

on

top of an

aquifer that was used by

adjacent property

owners

for

drinking

water.

Mr.

Van

Hook

never asserted that

the

“over-

design”

of the

facility

was

good

or

somehow was protective of the public

health,

safety

and

welfare.

This is just one

example of a statement taken out of context so that it could be used by

T&C to support its position.

The

fact

of the

matter

is

that it

is

the

credibility

of T&C’s

witnesses

that

should

be

questioned in this proceeding because it appears that no matter how unsafe a proposed facility is,

T&C’s

witnesses will testif~’

that

it is

designed to protect the public

health,

safety

and

welfare.

This is true because Mr. Moose testified in

Town

& Country I,

asserting that the proposed facility

was

safe

at that

time.

However,

that

was clearly not

the

case because this

Board

found

that

criterion ii was not met.

Furthermore, at the siting hearing in

this case,

Mr. Moose asserted that

he

believed this Board was incorrect to

disapprove T&C’s first application.

T&C II, 6/26/03 Tr.

Vol.

3-A,

p.

17.

Because

T&C’s witness

has previously testified that

an

unsafe

facility is

safe,

and

continues

to

assert

that

a

facility

meets

criterion

ii

even

though

this

Board

has

found

otherwise, the testimony of that witness should not be trusted.

Furthermore,

this

Board

should

completely

disregard

T&C’s

assertion

that

Professor

Daniel

is

“one

of the world’s foremost experts in waste

containment.”

T&C Brief, p.

77.

This

assertion is

unfounded because Professor

Daniel has never even been involved in the design or

engineering of a

landfill.

T&C

II,

6/27/03

Tr.

Vol.

3-B,

p.

114.

Furthermore, T&C’s

assertion

that it was

appropriate

for

the

City

Council

to

rely

heavily

on

Professor

Daniel’s

testimony

20

70391262v1 827167

---

should

also be disregarded because, rather than reflecting the Council’s confidence in Mr. Daniel,

the numerous references to

Professor Daniel in the Findings of Fact merely establish the inherent

bias ofthe City Council and the author of the Findings ofFact.

F.

THIS

BOARD

AND

THE

LOCAL

SITING

AUTHORITY

CANNOT

SIMPLY DEFER TO THE

IEPA.

Apparently because T&C did not

like

this

Board’s decision in

Town

&

Country I,

T&C

now asserts that it is inappropriate for this Board to

“become a technical review ofthe evidence.”

T&C

Brief,

p.

67.

However,

T&C

fails

to

acknowledge

that

it

is

this

Board’s

role

and

responsibility to

review

the

evidence presented at the siting hearing to

determine

whether the

evidence

presented adequately establishes that

the criteria

set

forth

in

section

39.2

of the Act

have been met.

Therefore, T&C’s

assertion that the issues raised by the County are matters that

should

be

left to

the

IEPA

is

completely

unfounded.

Rather,

it

is

the

duty

of this

Board

to

examine the

evidence presented at the hearing, just

as this

Board did

in

Town

&

Country I,

to

determine that the manifest weight ofthe evidence establishes that

criterion ii was not met.

As

such, this

Board

cannot simply turn

a blind eye to

deficiencies

in an application,

relying on the

IEPA to correct those deficiencies.

Just

as this

Board

cannot defer

to the IEPA,

neither

can a

local

siting

authority.

The

procedure for granting approval of a pollution control facility is

clearly created to

give authority

to

local governments and the Pollution Control Board to

first determine whether a facility meets

certain requirements contained in section 39.2 ofthe Act.

It is only after those requirements are

met

that

the

EPA

becomes

involved.

Therefore,

it

was

simply

inappropriate

for

the

City

Council to do

as it did in this case, through its imposition of Condition 9,

and defer to the IEPA

to

determine if the facility is

safe.

Such deference was explicitly

rejected by this Board in

Town

&

Country

land

should again be rejected by this Board.

21

70391262v1 827167

---

III.

T&C’S

APPLICATION

IS

NOT

CONSISTENT

THE

COUNTY

A.

T&C’S

APPLICATION

IS

INCONSISTENT

WITH

THE

PLAN, WHICH

SPECIFICALLY

PROVIDES

THAT

OF THE EXISTING FACILITY BE ALLOWED.

As

set

forth

in

Petitioners’

initial

brief,

it

is

clear

that

T&C’s

application

was

not

consistent

with the Kánkakee County

Solid

Waste Management Plan (Plan).

The City Council

employed

a

strained and

unconvincing

reading ofthe

County’s unambiguous Plan to

find it did

not

specifically prohibit the siting of the proposed landfill even though the language in the Plan

clearly indicated:

“It is the intent ofKankakee County that no

landfills or landfill operations be

sited, located,

developed

or operated

within

Kankakee

County

other than the

existing

landfill

located

southeast

of

the

Intersection

of U.S.

Route

45/52

and

6000

South

Road

in

Otto

Township, Kankakee County,

Illinois.”

See

Append. C

to County’s

initial Brief.

Based

on this

provision

and

others

contained in

the Plan,

it was

clear

that T&C application was

inconsistent

with the County Plan.

The City Council’s finding that the proposed facility was consistent with the County Plan

is also not supported by the evidence because, in the injunctive case filed by the City, the City of

Kankakee

admitted that

the

Plan

intended for no

landfills,

other than

expansion of the

Waste

Management facility.

T&C

II, Pet.

Ex.

5.

Therefore,

the City

of Kankakee

had

no

problem

understanding the County Plan when it‘filed its injunctive action against the County.

As

a result,

the

City’s

finding that T&C’s

facility

is

consistent with that plan is clearly against the manifest

weight of the evidence.

Probably because T&C recognized

that the

City’s

conclusion was not

supported

by the

evidence presented at the hearing, T&C did not even respond to

the County’s

arguments that the

Plan

was clear

in

evincing its

intent

that

no

landfills,

other than

an

expansion of the

existing

22

70391262v1

827167

---

facility, be

allowed.

T&C’s lack ofargument on the subject establishes that a clear reading ofthe

County Plan

precludes siting of T&C’s proposed landfill and establishes that T&C’s Application

is

not consistent with the County Plan.

While there is no existing landfill siting approval for the expansion ofthe existing facility

in Kankakee, that should not in any way affect the County Plan’s clear intent that only expansion

ofthat landfill is appropriate in Karikakee County.

This is particularly true because expansion of

the existing

facility is

inevitable.

In fact,

the

local

siting authority

had

actually granted siting

approval to

the expansion at the time ofthe hearing on T&C’s application;

however,

on review,

this

Board

disapproved the

expansion based

on notice

issues.

See

City of Kankakee,

PCB

03-

125,

133,

134,

slip

op.

at 17.

Currently, the Kankakee County Board is now engaged in a siting

hearing with respect to

the

proposed expansion.

As

a

result, it

is

clear that

expansion

of the

existing

facility is

forthcoming

and,

therefore,

Kankakee County’s

intent

should be

fulfilled by

concluding that T&C’s application is

inconsistent with the County Plan.

B.

THE

COUNTY

PLAN

WAS

PROPERLY

ENACTED

AND

IS

CONSISTENT WITH ALL APPLICABLE STATUTES.

Apparently because T&C cannot genuinely

assert that

its Application

is

consistent with

the

County’s

Plan,

T&C instead argues

that the Plan was not property

enacted.

However, this

contention is completely

untrue, as was specifically found by

this Board

in

Town

&

Country I.

T&C

contends

that

the

County’s

Plan

is

not

consistent

with

the

Solid

Waste

Planning

and

Recycling

Act

(SWPRA)

and

the

Local

Solid

Waste

Disposal

Act

(Disposal

Act)

because

following the County’s

adoption of the plan in 2000, the County enacted three amendments, one

on October 9, 2001, one on March 12,

2002

and one on February

11, 2003.

However, this Board

has

already

found that two

of those

amendments (October

9,

2001

and

March

12,

2002) were

properly enacted and consistent with the SWPRA and Disposal Act.

Town &

Country I,

PCB 03-

23

70391262v1 827167

---

31, 33,

35,

slip op. at 29.

Because the February

11, 2003

amendment was not enacted until after

this Board’s decision in that

case,

this

Board has

not ruled

on the

legality of that

amendment;

however, based

on this

Board’s ruling with

respect to

the other amendments,

this

Board

should

also rule that the February

11,

2003

amendment was properly

enacted

and

consistent

with

the

applicable

statutes.

Therefore,

T&C’s

contentions,

and

the

City

Council’s

findings,

that

these

amendments were inconsistent with the SWPRA and Disposal Act

are erroneous

and against the

manifest weight ofthe evidence.

T&C

first

contends that these amendments are improper because they were not reviewed

and approved for consistency by the EPA.

T&C Brief, p.

85.

However, it is uncontested that all

of these amendments were

submitted to

the Illinois

EPA for its review,

as required by

section

4(b) ofthe Act, 415

ILCS

15/4(b).

PCB II,

C. 1626-1776.

Furthermore, nothing in the SWPRA

requires

that

the

amendments

actually

be

approved

by

the

Illinois

EPA

before

they

are

implemented.

See

415

ILCS

15/1

et seq.

Rather, once the amendments are submitted,

they are

presumed

to

be

acceptable

and

approved

unless

returned

to

the

county

with

specific

recommendations for improving them.

See

415

ILCS

15/4(b).

Because the amendments in this

case

were

accepted by

the

IEPA

and

not

returned with

recommendations,

those

amendments

were

effective upon submission.

As

such,

Kankakee

County clearly followed the appropriate

statutory

guidelines

in amending its

Plan and timely submitting

those amendments

to the EPA.

Consequently,

the

City

Council’s

finding that

the

amendments

were

not

properly

enacted

is

against the manifest weight of the evidence.

Further,

T&C

suggests

that

the

amendments

at

issue

were

not

consistent

with

the

SWPRA and the Disposal Act because of the timing ofthose

amendments.

In making

such an

argument,

T&C seems

to

assert that

a solid waste management plan can never be

amended but

24

70391262v1 827167

---

that such a plan can only be submitted and reviewed every five years.

However, section 5(e) of

the SWPRA specifically allows

for amendments

and revisions

to a

county plan.

See

415

ILCS

1515(e).

Therefore,

T&C’s

assertion

that

the

scheme

created

by

the

SWPRA

precludes

amendments

to

solid

waste

management

plans

is

simply

erroneous.

Furthermore,

T&C’s

contention that

the timing of the

County’s

amendments

was

improper is

not

supported

by

any

provision

in

the

applicable

Acts

because

neither

the

SWRPA

or

the

Disposal

Act

place

limitations on the number or timing ofamendments to a solid waste management plan.

T&C

also

asserts

that

the

amendments

to

the

County’s

Plan

are

inconsistent

with

the

SWPRA and

Disposal

Act

because

the

amendments

at issue

serve

to

establish

that only

one

landfill

should

be

located in

Kankakee

County.

In

support

of this

argument,

T&C

cites

the

SWPRA’s

provision that the Act “shall not be construed

to

impact the authority of units oflocal

government

in

the siting

of solid waste

disposal

facilities.”

415

ILCS

15/2(a)(5).

While

the

legislature made clear in the SWPRA itself and. in public comments

to the SWPRA that the Act

would not

affect the ability ofunits

of local

government to hold

siting hearings for solid waste

disposal facilities, nothing in the Act provides that the plans created by counties may not

impact

landfilling, which

might affect a unit of local government or a home rule unit.

Furthermore, the

County has the primary authority for solid waste planning.

See

415

ILCS

15/2.

Therefore,

the

amendments

to

the

County

Plan

are

entirely

appropriate

and

are

not

in

conflict

with

the

applicable statutes.

.

Because it is clear that neither the SWPRA nor the Disposal Act prohibit the amendments

passed by the County of Kankakee, the Plan is clearly consistent with the SWPRA and

Disposal

Act.

25

70391262v1 827167

---

C.

T&C’S

APPLICATION

IS

INCONSISTENT

WITH

THE

PLAN

BECAUSE

IT

DOES

NOT

INCLUDE

AN

PROPERTY

VALUE

PROTECTION

PROGRAM

OR

FUND.

T&C

does

not

even

dispute

that

their

application

does

not

contain

a

Property

Value

Guarantee

Program

“prepared

by

an

independent

entity

satisfactory

to

the

County”

or

an

environmental

contingency

escrow

fund

with

a

minimum

deposit

of

one

million

dollars

($1,000,000)

or some

other type of payment or a performance bond

or policy approved by the

County, as explicitly required by the County Plan.

PCB II, C1626-1776, Public Comment ofthe

County of Kankakee.

As such, the

City Council’s

decision that

the application was

consistent

with the County Plan was against the manifest weight ofthe evidence and cannot be upheld.

D.

THE

CITY’S OWN WASTE MANAGEMENT PLAN IS

IRRELEVANT.

T&C

next contends that because the

County’s plan was not

appropriately developed and

established, this Board should

consider whether the Application is consistent with the City’s

own

solid

waste

management plan

adopted pursuant

to

the Disposal

Act,

415

ILCS

10/1.1.

This

contention

is

unsupported

because,

as

set

forth

above, the

County Plan was properly

enacted.

Furthermore,

there

is

no

support

or authority

setting

forth

that

it

is

appropriate to

examine a

City’s Waste Management Plan in a section 39.2

siting hearing.

Although the Disposal

Act

does

allow municipalities

to

create their

own

solid

waste

management

plans,

such plans

are irrelevant in

a

landfill

siting hearing.

This

is

true because

section

39.2(a)(viii)

requires

that

an

application

be

consistent

with

a

county

solid

waste’

management plan, if one exists.

See 415

ILCS

5/39.2(a)(viii).

There is

no provision in

section

39.2

that

requires,

or

even

allows,

a

local

siting

authority

to

consider

any

solid

waste

management

plan

other than

a

county plan when determining whether

to

grant or

deny

siting

approval to

a facility.

Further,

T&C

‘s assertion that the County Plan is

not effective or binding

26

70391262v1

827167

---

on the City because the City has created its own solid waste management plan is entirely without

support.

Nothing in section 39.2(a)(viii)

suggests that an

application has to be consistent with a

County

plan

only

if

no

City

Plan

exists.

Rather,

section

39.2(a)(viii)

provides

that

all

applications must

be

consistent with

a

County Plan with no

exceptions

and

no

mention

of any

other type ofsolid waste management plan.

Therefore, the City’s adoption ofits

own solid waste

management plan is

irrelevant in determining whether T&C’s

application should be approved or

disapproved by a local siting authority or this Board.

Finally, T&C has no

support for its

assertion that the City’s

solid waste management plan

should

control over the County Plan to

the extent that there are conflicts between them because

section 39.2(a)(viii) does not provide that

any solid waste management plan other than a County

Plan

should

be

considered.

Therefore,

it is

unnecessary to

determine whether

any other plan

contradicts a County Plan.

As

set forth in section 39.2(a)(viii), it is the County Plan that should

prevail

over

all

others

because

it

is

the

only

plan

considered

in

a

local

siting

hearing.

Furthermore, T&C’s

assertion that the

County’s plan is

subordinate to the

City’s Plan is

directly

contradicted by the SWPRA, which

specifically provides that “counties should have the primary

responsibility

to plan

for the management of municipal waste

in their boundaries

to

insure the

timely

development

of

needed

waste

management

facilities

and

programs.”

415

ILCS

1 5/2(a)(2).

Therefore,

the legislature, through

section 3 9.2(a) of the Act

and

the SWPRA,

has

already

determined that

a

County’s

Plan

is

primary and

a Plan

created by

any

other political

subdivision should be secondary

Because it

is

clear

under

section 39.2(a)(viii)

that the

only relevant Waste management

plan

is

the

County

Plan,

T&C’s

assertion

that

this

Board

should

look

to

the

City’s

plan

is

completely without support.

27

70391262v1 827167

---

E.

THIS

BOARD

SHOULD

NOT

FIND

THAT

THE

COUNTY

PLAN

UNCONSTITUTIONAL.

T&C

urges this

Board to

look beyond the procedures set forth in section 39.2 of the Act

and somehow find that the Plan adopted by the County is unconstitutional because it was created

in

violation of the

City’s

home rule power.

However, it is

clearly not the role of this Board

to

make such a determination.

As

an administrative agency, the Board possesses only the powers

granted

to

it

by

statute.

See

WF.

Hall

Priting

Co.

v.

Environmental

Protection

Agency,

16

Ill.App.3d

864,

869, 306 N.E.2d

595,

599 (1st

Dist.

1974) (explaining that the Pollution Control

Board “must proceed strictly within the authority defined by the Act”).

Pursuant

to

section

40.1(a)

of the

Act,

the

Board

has

authority

to

review

a

local

governing body’s grant or denial of a request for local siting approval.

See

415

ILCS

5/40.1(a).

That review is

limited to

the procedures and considerations

set forth

in section 39.2, and no new

or additional evidence can be presented to the Board.

Id.

Section 39.2

sets forth specific criteria

that a local siting authority and, on review, the Illinois Pollution Control Board are to

examine in

determining whether

an

application

for local

siting authority

should be

granted or denied.

See

415

ILCS

5/39.2.

None of the criteria

in

that

section requires, or

even allows,

a

local

siting

authority

or the Board

to

examine the

contents

of a

county solid

waste

management plan

to

determine if the Plan is

constitutional.

Rather, the examination of such a Plan by the

local siting

authority and

the Board is

expressly limited

to

determining whether an application is

consistent

with the Plan.

See

415

ILCS 5/39.2(a)(viii).

The

hearing

officer

at

the

local

siting

hearing

correctly

concluded

that

the

constitutionality of the Plan was beyond the

scope of the siting hearing and specifically refused

to consider that subject even though he was urged to do so by T&C.

T&C II, 6/26/03 Tr. Vol.

3-

C,

pp.

4-6.

Specifically,

the hearing officer found that

he had

no jurisdiction to

determine the

28

.

70391262v1 827167

---

constitutionality of the County Plan because a

siting hearing is

“limited

in

the matters

is

may

address.”

Id.

at 6.

Likewise, this Board should expressly refuse to

consider the constitutionality

ofthe County Plan because it is beyond the scope

and jurisdiction of this Board to

examine solid

waste management plans for constitutionality or legality.

If this Board were to

examine the constitutionality ofthe County’s Plan, this Board would

find that the Plan is constitutional because it was enacted in

accordance with the SWPRA.

The

authority

to

create

county

solid

waste

management

plans

is

explicitly

provided

for

in

the

SWPRA,

which

provides

that

“counties

should have the primary responsibility

to

plan for the

management

of ‘municipal’ waste

within

their

boundaries.”

415

ILCS

15/2.

Through

this

legislation,

the

General

Assembly

clearly

gave

counties

the

power

and

right

to

draft

and

implement

county

waste

management

plans.

In

fact, the

legislature

determined that

counties

should have “primary responsibility” for doing so.

As

such, the County had

a right to

draft its solid waste management plan as it so desired

with

the provisions

that

it

chose

to

include,

and

nothing

in

the

SWPRA or any

other

statute

precludes the

County’s

right to

do

so.

In

fact, the SWPRA specifically allows

provisions,

like

the

one

contained

in

the

County’s

plan,

which

restrict

the

development of multiple

landfills

because the Act itself requires a County to

select waste management

sites

to reduce reliance on

landfilling.

See

415

ILCS

15/2.

This

is

exactly what the

County has accomplished by

only

allowing for one

landfill.

Because the

County’s

Plan was created with the explicit

authority of

the legislature, through the SWPRA, that Plan is not unconstitutional or violative of any laws.

IV.

THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR.

Both T&C and the City ofKankakee allege that the County ofKankakee has exaggerated

facts

in

support

of its

fundamental unfairness

arguments.

However, this

is

entirely untrue.

In

fact, the County simply presented the existing facts, which clearly establish that the proceedings

29

70391262v1 827167

---

were fundamentally unfair.

Because those facts are so overwhelming, Petitioners had no

choice

but to

allege that those facts are grossly exaggerated and, in fact, themselves

paint a picture that

grossly misrepresents the truth.

A.

RESPONDENTS SERIOUSLY DOWNPLAYED THE

FUNDAMENTALLY

UNFAIR PROCEDURES EMPLOYED IN THE PROCEEDINGS.

In

its

opening

paragraph

to

its

fundamental

fairness

discussion,

T&C

drastically

mischaracterizes

the

facts

in

an

attempt

to

establish

that

the

County

is

not

painting

the

true

picture for the Board when,

in

fact, it is

T&C that is misrepresenting the truth and downplaying

the fundamental unfairness that occurred at the siting hearing.

For example, T&C asserts that

thefl

City

and

the’

applicant

had

“pre-filing

discussions

on

administrative

and

unrelated

matters

between the Applicant and the City.”

T&C Brief, p.

26.

However, the fact ofthe matter is that

Mr. Volini himself admitted

that:

1)

he

and

the

City engaged

in

a

closed

session meeting

to

discuss

appealing T&C’s

first

application

to

the PCB, 2) he

had

conversations ‘related

to

T&C

refihing its

application,

and

3)

he

had

communications

with

the City

about the

City hiring

a

geological consultant to

review T&C’s newly filed 2003

application.

PCB II, Pet. Ex. 23, pp.

12-

19.

These communications

establish that Mr. Volini had

a great deal ofpre-filing

contacts with

the City

on

matters

directly related

to

the siting application

and

proceedings, which made the

proceedings fundamentally unfair.

Furthermore, T&C

suggests

that

the’

“City’s

consultant

and

the Applicant

had

a remote

and

isolated business contact many years

prior to

the Application.”

T&C Brief,

p.

26.

In fact,

the

Applicant

had

direct

communication with

the

Consultant,

Mr.

Yarborough,

prior

to

the

Consultant’s hiring

and on the same day as the closed session meeting.

PCB II, Pet.

Ex.

16, p.

9.

Mr. Volini also

had discussions with the City about Mr. Yarborough, as Mr. Volini was the one

who recommended that Mr.

Yarborough be

hired and submitted

Mr.

Yarborough’s name

to

the

30

70391262v1

827167

---

City

Council.

Id.

Furthermore,

Mr.

Yarborough

had

previously testified

on

behalf of Mr.

Vclini,

and Mr.

Volini’s

attorney prepared Mr. Yarborough for his

deposition in this

case.

Id.

at

14,

22.

Such contact is

clearly neither “remote” nor “isolated.”

Next,

T&C contends

that

the

“Hearing

Officer has

assistance

from other City staff in

drafting proposed Findings of Fact for the City Council.”

T&C Brief, p.

26.

However, the truth

of the matter

is that the Hearing Officer actually only drafted two

or three pages of the

30 page

document himself,

and the

City Attorney, Mr. Bohlen,

drafted the remainder of the document,

PCB II, Pet.

Ex.

15,

p.

18-22, 25-26, 29.

Although the

City

and T&C

contend that Mr.

Boyd

actually drafted most of the document,

that is

clearly untrue because Mr. Boyd himself admitted

that Mr. Bohien sent him the findings offact and conclusions oflaw that were issued in the prior

proceeding

related

to

the

2002

application

(drafted by

Attorney Bohien),

and

then, Mr.

Boyd

made some

changes

and

sent

them back to the

City.

Id.

at 19-20.

Mr.

Boyd himself admitted

that he only recalled typing up

2 to 3 pages of additional pages after reviewing the

2002 findings

offact.

Id.

at 25-26, 29.

Both

the

City

and

T&C attempt

to

distort the truth by

asserting that

Mr.

Bohlen only

drafted one

or two

portions of the

findings of fact.

However,

this

assertion

ignores

that

the

findings of fact presented

to

the board were based,

in large part,

on

the

2002

findings

of fact,

which were

drafted by Mr. Bohlen

and that Mr. Bohien admitted that he may drafted more than

just

the

Yarborough

references

in

the

2003

document.

The

City

and

T&C

also

fail

to

acknowledge Mr.

Boyd’s own testimony that he only typed up two orthree pages ofthat

30-page

document.

Both the City and

T&C suggest that the County improperly accused Mr. Bohlen and Mr.

Boyd

ofa conspiracybased on the absence ofany documentation of the correspondence between

31

7039

1262v1

827167

---

those two individuals related the findings of fact and conclusions oflaw,

purportedly drafted by

Mr. Boyd.

However, the County stands firm in its assertion that it is highly suspicious that all of

that documentation that was transmitted back and

forth between Mr. Bohlen

and

Mr. Boyd was

destroyed or

is

missing

from

both

Mr.

Bohien’s

and

Mr.

Boyd’s

entire

offices, and the

County

would be remiss not to point that out to

this Board.

Finally,

T&C noted that

“the City received

and

considered a report

from its

consultant

after the public

comment period was closed.”

T&C Brief, p. 26.

However, the City fails to point

out

that

the document

was

created by a

Consultant who had

direct

contact

and

communication

with the Applicant.

T&C

also

failed to mention that the document

presented new evidence to

which

the

Respondents

were

never

able

to

respond.

That

document

was

unlike

the

report

presented

in

Sierra

Club,

which

contained only

a summary of the testimony,

public

comments

and recommendations ofthe authors ofthe report.

Rather, the Yarborough reports presented new

evidence, which specifically influenced the

City’s

approval and caused the City Council

to

add a

grouting requirement, upon which no testimony was provided at the siting hearing.

The misrepresentations noted above are just a few examples of how T&C oversimplified

the arguments presented by the County and

downplayed the fundamental unfairness

that existed

at the siting hearing.

As explained more fully below,

the proceedings were

clearly unfair based

on the actions of the City Attorney, the evidence of prejudgment by the City Council, and the

ex

parte communications between the Applicant and decisionmaker.

B.

THE

ROLE

PLAYED

BY

THE

CITY

ATTORNEY

RENDERED

THE

PROCEEDINGS FUNDAMENTALLY UNFAIR.

.

A

great

deal of evidence

establishes

that

the

City

Attorney’s

role

in

the

proceedings

rendered them

fundamentally

unfair.

The

first

evidence of this

is

that

the

City

attorney was

representing

both

the

City

Council

and

City

staff.

While

T&C argues

that

Mr.

Bohien was

32

70391262v1

827167

---

c1e~rly

representing only the City Staff at the proceeding, this is less than clear based on a review

of the record, which establishes that the Mr. Bohien entered an appearance on behalf ofthe “City

of Kankakee.”

PCB II, Pet.

Ex.

14,

p.

26.

At the siting hearing itself,

Mr.

Bohien announced

that

he

was

appearing

for

“the

City

of Kankakee.”

T&C

II,

6/24/03

Tr.

Vol.

1-A

p.

16.

Therefore, based on Mr.

Bohien’s own statements at the hearing, it appeared that Mr. Bohien was

representing

both

the City

Council

and

the

City

Staff.

Furthermore,

the minutes

of the

City

Council

meeting establish

that Mr.

Bohien

was advising both

the

City Council

and

City

staff.

Such actions were improper and led to a fundamentally unfair hearing.

Furthermore, as

explained above,

Mr.

Bohlen’s

participation in

drafting the

Fndings of

Fact

also

establishes that

the proceeding

was

fundamentally

unfair because those

Findings

of

Fact were,

by ordinance,

to be drafted by the Hearing Officer.

The clear testimony in this case

establishes that the majority of those

findings of fact were

not

actually drafted by

the Hearing

Officer but were drafted by Mr. Bohien.

Adding to the fundamental unfairness ofthe proceeding

is

the fact that the City Council

was never advised of the fact that Attorney Bohlen drafted the

majority ofthe document.

In fact, the City Council was explicitly told that findings of fact were

drafted by Hearing Officer Boyd.

PCB II, C

1907.

T&C relies on

Sierra

Club v.

Will

County Board,

PCB 99-136

(Aug.

5,

1999) to

support

its position that

a county or municipality can have its staff create a report

that

is presented to the

decisionmakers to

review.

However, the report at issue in

Sierra

Club

is vastly different than the

findings of fact drafted in this

case because in

Sierra

Club

the County Board was aware

that the

report was

created by the County staff,

including

attorneys, and~thereport was not a purported

finding of

an

impartial

hearing

officer.

Here,

that

was

clearly

not

the case because the

City

Council was led to believe that the findings of fact were drafted by

the Hearing Officer, not the.

33

70391262v1 827167

---

City’s

staff.

The County

does not

contest that the’ City staff in

this

case could have drafted a

report

for

the City

Council,

but

the City

staff did

not

do

so

and

instead

drafted

the Hearing

Of5cer’s report

for

him,

which

was

fundamentally

unfair.

Nothing

in

Sierra

Club

provides

otherwise.

T&C

also

cites to

Waste Management ofillinois

v.

County Board ofKane

County,

PCB

03-104 (June

19,

2003) to

support its position that the City did not have to rely on the Findings

of Fact purportedly drafted by Hearing

Officer Boyd.

However,

Waste Management

does not

support

T&C’s

position

because

the

memo

at

issue

in

Waste

Management

was

drafted

by

a

county board member,

and that fact was disclosed to the County Board.

Therefore,

there was no

misrepresentation as to the author of that memo,

as there was in this case.

Because the findings

of fact

in

this

case

are readily

distinguishable from

the memo

at issue

in

Waste

Management,

Waste

‘Management

is

not

controlling,

as

it

does

not

stand

for

the

proposition

that

decisionmakers can be misled about who is

the author ofa report or other document that

is to be

consider in a landfill siting hearing.

T&C contends

that this

Board

should

not

even consider the fact

that

Attorney

Bohlen

violated the

City ordinance by

drafting the majority of the Hearing Officer’s Findings

of Fact.

However,

as

admitted

by

T&C, this

Board

can

consider the violation

of an

ordinance if that

violation

contributes to

fundamental unfairness.

T&C Brief,

p.

35; see

also

Gallatin National

Co.

v.

Fulton

County Board,

PCB 91-256

(June

15,

1992);

Citizensfor

Controlled Landfills

v.

Laidlaw

Waste

Systems,

Inc.,

PCB 91-89, 90

Sept.

26,

1991),

In this

case, it

i,s

clear that the

failure of the Hearing Officer to personally draft the findings of fact contributed to

fundamental

unfairness because

the

City Council

was voting

on

a

document

it believed

was drafted by

an

unbiased hearing officer, when in fact, the document was drafted by the City’s attorney.

34

70391262v1 827167

---

Finally,

T&C makes

light of the fact that Mr.

Bohlen drafted a new version of the City

Council’s Findings

and Fact and Conclusions of Law, which was signed by the Mayor but never

actually voted upon by the City Council.

T&C contends that

is unimportant because the changes

made were not significant; however,

that is

simply not true.

Many of the changes made by Mr.

Bolilen after the City Council met to

approve

the

findings

and conclusions were

substantive,

as

they changed significant words and’ indicated that the City Council made specific

findings when

no

specific

findings

were

made

in

the

original

document.

PCB

II,

Pet.

Ex.

14,

pp.

5

1-52;

Appendix

B

to

County’s

brief.

The

changes

made

by

Mr.

Bohlen

were

so

extensive

that

a

summary of them

covered six

type-written pages.

Appendix

B

‘to

County’s Brief.

Clearly,

the

changes

made

by

Mr.

Bohlen

were

more

than

mere

corrections

to

typos

and

grammatical

changes

as asserted by T&C.

Rather, Mr.

Bohlen’s changes

were substantive

ones, which were

never voted upon by the City Council.

This fact, in and ofitself,

establishes that the proceedings

were fundamentally unfair, as the conclusions ofthe City Council were never even voted upon.

C.

THE

CITY

COUNCIL’S

ACTIONS

DEMONSTRATED

PREJUDGMENT

OF THE APPLICATION.

T&C contends that the lawsuits

filed by the City Council against the County ofKankakee

do

not

demonstrate prejudgment of T&C’s

application.

However,

a

review of the timing

and

substance ofthose

suits

establishes otherwise.

The first

suit,

alleging an

improper use of funds

by Kankakee County, was instituted the same day as the County’s briefin

Town

&

Country I

was

to

be

filed with

this

Board.

That suit

completely

lacked

merit

and

was dismissed

by the trial

court; however, the fact that such a suit

was filed at the same time

Town

&

Country I

was being

briefed raises

quite

an

inference that

the City was

attempting to

disrupt

the

County’s

ability to

adequately represent the County in

Town

& Country I.

Furthermore, the City’s suit for injunctive

relief against the County based on the

County’s

solid waste management plan clearly establishes

35

7039 1262v1

827167

---

that even before a siting hearing on T&C’s application, the City had decided it would grant siting

approval to T&C.

This is

true based on

the explicit language contained in the City’s

complaint,

which all but admits that it intended to site the landfill and did not want any interference in doing

so.

T&C asserts that the issues raised by the County that occurred prior to

this landfill siting

hearing

are irrelevant.

However,

as pointed

out

in

Petitioners’

initial

brief,

those

issues

are

relevant because they establish that the City Council decided over a year before this hearing even

took place

that it was going to

approve T&C’s application before even hearing any evidence.

As

such, this

Board should

examine the facts presented by Petitioners,

which establish that the City

Council

decided long ago to

approve T&C’s

application no matter what the evidence presented at

the hearing showed.

D.

T&C

HAD

IMPROPER

EX

PARTE

COMMUNICATIONS

WITH

THE

DECISIONMAKERS.

Although

T&C

asserts otherwise, it is

clear that

T&C, through its President, Mr. Volini,

had

improper

ex

parte communications

with

the

decisionmakers.

T&C

implies that

the only

communications

Mr.

Volini

had

with

City

officials

were

related

to

an

industrial

park

that

he

hoped

to

develop

on

land

near

his

proposed

landfill.

However,

a

review

of the

evidence

establishes that

Mr.

Volini

had

other contacts

with

City

officials.

Most notably,

Mr.

Volini

participated

in

a

closed session meeting with

the City Council

and City attorney.

The minutes

for that closed session were withheld by the City.

The City asserts in its brief that the contents of

that

meeting were

somehow privileged

even though there was

clearly no

privilege attached to

that meeting because Mr. Volini was never Attorney Bohien’s

client.

Because Mr. Volini was

present

at the

meeting,

he

destroyed

any

attorney-client privilege

that

would

have

otherwise

existed between Attorney Bohlen and

the

City.

As

a result, the City should

have provided the

36

70391262v1 827167

---

miiiutes

to

that

meeting,

but

it

refused

to

do

so,

establishing

that

there

were

discussions

contained within those minutes that the parties did not want the County to

see.

Adding

insult

to

injury,

the

City contends

that

there

is

“no

evidence

to

support

the

conclusion that

any

statements made in

the executive session of the City Council

in

February,

2003

in

anyway

related

to

the

yet

to

be

filed

siting

application

or in

anyway

belittled

the

reputation ofthe objectors or enhanced the reputation ofthe applicant’s witnesses.”

City Brief, p.

8.

This

statement

is

completely untrue because Mr.

Volini

admitted

that

at

that

meeting he

discussed

his

intent

to

file

a

new

landfill

siting

application.

PCB

II,

Pet.

Ex.

23,

p.

21.

Furthermore, there is

strong

circumstantial

evidence that

suggests that Mr. Volini

and

the City

discussed Mr. Volini’s filing of a new application because on the very same day

as that meeting,

Mr. Volini contacted Mr. Yarborough about Mr.

Yarborough potentially acting

as a consultant

for the City with respect to

T&C’s new application.

PCB II, Pet.

Ex. p.

9.

Furthermore, the fact

that

there

is

little

evidence

about the contents

of the

closed session meeting

is

understandable

since

the City refused

to

produce the

minutes

of that

meeting.

Because it was the

City that

refused to

disclose the contents of that meeting, it

is

entirely disingenuous

for the

City to

now

assert that there is no direct

evidence ofwhat occurred during that meeting, especially since there

is

evidence and testimony to

support the County’s assertion that T&C’s application was discussed

at that meeting.

In addition

to

the

closed session meeting,

Mr.

Volini

had’ other conversations with

the

City and

its officials

after the PCB disapproved T&C’s

application

but before T&C filed

a new

application,

including

a

conversation

about

the

City

hiring

a

consultant

geologist.

Such

conversations

were

improper

because

those

conversations

related

specifically

to

the

siting

application that T&C intended to file.

37

70391~262v1827167

---

For the

reasons

set

forth

above and

outlined

more thoroughly in the

County’s

opening

brief,

it

is

abundantly

clear

that

the siting proceedings were

fundamentally ‘unfair,

requiring a

remand.

CONCLUSION

For the foregoing reasons, Petitioners, County ofKankakee and State’s Attorney Edward

D.

Smith, pray that the Illinois

Pollution Control Board issue an Order reversing the decision of

the City of Kankakee which

approved the Landfill

Siting Application of Respondent, Town

&

Country Utilities, Inc. and Kankakee Regional Landfill, L.L.C.

Respectfully Submitted,

On behalfof the COUNTY OF KANKAKEE,

ILLINOIS,

and EDWARD

D. SMITH,

KANKAKEE

COUNTY STATE’S

ATTORNEY,

By: Hinshaw & Culbertson

~SO~

~

(H

KL)

Charles F. Helsten

Richard S. Porter

Heather Lloyd

Its Attorneys

H1NSHAW AND CULBERTSON

100ParkAvenue

P.O.

Box

1389

Rock’ford, IL 61105-1389

815-490-4900

This document

utilized

100

recycledpaper

38

70391262v1 827167

---

AFFIDAVIT OF SERVICE

The

undersigned,

pursuant

to

the

‘provisions

of

Section

1-109

of

the

Illinois

Code

of

Civil

Procedure, hereby under penalty of perjury under the laws of the United

States

of America,

certifies that

on January

16, 2004, a copy of the foregoing was served upon:

Ms. Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite

11-500

Chicago, IL 60601

(312) 814-3620

Attorney George Mueller

501

State Street

Ottawa,

IL 61350

(815) 433-4705

(815) 433-4913

FAX

Donald J. Moran

Pederson & Houpt

161 N.

Clark Street, Suite 3100

Chicago, IL 6060 1-3242

(312) 261-2149

(312) 261-1149

FAX

Kenneth A. Leshen

Leshen & Sliwinski, P.C.

One Dearborn Square, Suite

550

Kankakee, IL 6090 1-3927

(815)933-3385

(815) 933-3397 FAX

ChristopherW. Bohlen

200

B. Court

Street,

Suite 602

P.O.

Box 1787

Kankakee, IL 60901

(815) 939-1133

(815) 939-0994

FAX

L. Patrick Power

956

N. Fifth Avenue

Kankakee, IL 60901

(815) 937-6937

(815) 937-0056 FAX

Byron Sandberg

109 Raub

St.

Donovan,IL 60931

byronsandberg~starband.net

70377853v1

827167

---

Mr. Brad Halloran

Hearing Officer

Illinois

Pollution Control Board

100 West Randolph,

11th Floor

Chicago,

IL 60601

(312) 814-8917

(312)

814-3669 FAX

Via

UPS

Next

Day Air

to

Ms.

Gunn

and

to

the

remainder of those

on

the

Affidavit

of Service

by

depositing a copy thereof, enclosed

in an envelope in the U.S. Mail at Rockford,

Illinois, before

the hour

of

5:00 P.M., addressed as above.

J~Z

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box

1389

Rockford, Illinois 61105-1389

(815) 490-4900

70377853v1

827167