RECE~VED

BEFORE THE

CLERK’S OFFICE

THE ILLINOIS POLLUTION

CONTROL BOARD

JAN

27

2004

STATE

OF ILLINOIS

BYRON SANDBERG,

)

Pollution Contro’ Board

Petitioner,

)

vs.

)

PCB 04-33

THE CITY

OF

KANKAKEE,

ILLINOIS

)

(Third Party Pollution Control

CITY COUNCIL, TOWN &

COUNTRY

)

Facility Siting Appeal)

UTILITIIl~S,

INC., and KANKAKEE

)

REGIONAL LANDFILL, L.L.C.

)

Respondents.

)

WASTE MANAGEMENT OF ILLINOIS

)

INC.,

)

Petitioner,

)

vs.

)

)

PCB 04-34

THE CITY OF KANKAKEE,

ILLINOIS

)

(Third Party Pollution Control

CITY COUNCIL, TOWN &

COUNTRY

)

Facility Siting Appeal)

UTILITIES, INC., and KANKAKEE

)

REGIONAL LANDFILL, L.L.C.,

)

Respondents.

)

COUNTY OF

KANKAKEE,

ILLINOIS,

)

and EDWARD D. SMITH, KANKAKEE

)

COUNTY STATE’S ATTORNEY,

)

Petitioners,

)

vs.

)

)

PCB 04-35

THE CITY OF KANKAKEE, ILLINOIS

)

(Third Party Pollution Control

CITY COUNCIL, TOWN

& COUNTRY

)

Facility SitingAppeal)

UTILITIES,

INC., and KANKAKEE

)

(Consolidated)

REGIONAL LANDFILL, L.L.C.,

)

Respondents.

)

RESPONSE OF TOWN & COUNTRY TO KANKAKEE COUNTY’S MOTION

TO SUPPLEMENT THE

RECORD

Now

come

the

Respondents,

Kankakee

Regional

Landfill, L.L.C.

and Town

&

Country Utilities, Inc. (hereinafter “Town

&

Country”) by their attorney, George

---

Mueller,

P.C., and for their Response to

the Motion ofKankakee County

to

supplement

the record herein state as follows:

1.

The County seeks the unprecedented relief of supplementing the record herein

by

including

the testimony of a witness

from

a different

case with different

parties

for

the

reason

that

the

testimony

of

this

witness

is

allegedly

corroborative of some testimony offered by the County in the instant case.

2.

Town & Country is not

a party in the case from which testimony is

sought to

be admitted, and the witness whose testimony is

sought to be included did not

testify in the instant case.

The County sits

as the decision maker in the case

from which testimony is

sought to be admitted (the Waste Management siting

case).

3.

The

County has previously argued in

its

Brief,

without

citing

any

legal or

regulatory

authority,

that

Town

&

Country’s

failure

to

include

sensitivity

analyses (which are nothing more than variations of the baseline groundwater

impact

model) in

a

siting application

renders

that

application

so incomplete

that

the

local

decision

maker

loses

jurisdiction

to

even

consider

the

application.

Town

&

Country

has

responded

in

its

Brief that

there

are no

rules,

precedents,

or

even

guidelines

suggesting

that

any

groundwater

modeling be

part ofan application for local siting approval.

Town &

Country

has further responded that the County’s argument is

factually incorrect in that

the two Town &

Country siting applications actually contain five variations of

its groundwater model.

---

4.

The

County

has

also

argued

in

its

Brief

that

the

City

approving

a

siting

application

which does not

contain multiple

sensitivity analyses

renders that

decision against the manifest

weight of the evidence.

Town &

Country has

responded that, in addition to the argument being unsupported by the facts, the

County’s

prior

approval

of

a

hydrogeologically

similar

landfill

expansion

described in

a Waste Management

siting application which

contained

only

a

single baseline groundwater model

suggests that the County is

advancing it~

argument in bad faith.

5.

Town &

Country

believes

that

the

summary of the

testimony

sought

to

be

added

to

this

record

is

neither

correct,

complete,

nor

in

context,

but

the

accuracy of the factual

assertions

in

the

County’s

Motion

is

not

material

to

how this Board should dispose ofthat Motion.

6.

In

considering

whether the

decision of the

Kankakee

City

Council

on

the

substantive

siting

criteria is

against the manifest weight of the evidence, the

Board

is

confined

to

reviewing

the

record

of the

siting

proceedings

held

before the

City

Council.

The County Motion

to

supplement

the record, just

like

their Reply Brief in this

case,

overtly seeks to

have the Board

make

its

own independent determination of the credibility ofthe witnesses when, as a

matter

of law,

that determination is

the exclusive

responsibility of the

local

decision maker, and the Board is specifically precluded from re-weighing that

credibility

determination.

Waste

Management

of

illinois,

Inc.

vs.

Pollution

Control Board,

160

JlI.App.3d 434,

513

N.E.2d 592

(2~K1

Dist.

1987).

See

---

also Fairview Area Citizens Task Force

vs. illinois Pollution Control Board,

198 ill.App.3d 541,

555 N.E.2d 1178

(3i~~

Dist.

1990), File vs. D&L Landfill,

Inc., 219 Ill.App.3d

897,

579 N.E.2d 1228

(5th

Dist.

1991).

7.

The

County

points

out

in

its

Motion,

in

an

apparent

attempt

to

embarrass

counsel for Town &

Country, that he presented the witness

whose testimony

they

seek to

add

to

this

record.

The fact that

attorneys represent

different

clients in different cases,

and sometimes advocate different positions on their

respective behalf,

is

neither

surprising

nor relevant.

This

case

is

about the

issues, not the lawyers.

8.

There

is

no

basis

anywhere in

the law for supplementing a record on review

for the purpose of bolstering the testimony of a witness with the testimony of

an

unrelated witness

from

an

unrelated

proceeding.

This

is

so

manifestly

obvious

that one has to

question whether the County’s Motion

is brought for

any

purpose

other

than

to

prejudice

Town

&

Country

and

the

City

of

Kankakee.

WHEREFORE, for the foregoing reasons, Town & Country prays that this

Board deny the Motion ofthe County ofKankakee to supplement the record.

Respectfully Submitted,

Kankakee County Landfill, L.L.C. and

Town & Country Utilities, Inc.

BY:

_______________

The~?r

Attorney

GEORGE MUELLER, P.C.

Attorney at Law

501 State Street

Ottawa, IL

61350

Phone: