BEFORE THE ILLINOIS POLLUTION CONTROL
~
WASTE MANAGEMENT OF
)
MAY 13 2005
ILLINOIS, INC.,
)
STATE OF ILLINOIS
)
Pollution Control Board
Petitioner,
)
)
v.
)
PCBO4-186
)
(Pollution Control Facility Siting Appeal)
~
COUNTY, ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on May 13, 2005, we filed with the Illinois Pollution Control
Board, WASTE MANAGEMENT
OF ILLINOIS, INC.’S MOTION FOR LEAVE TO FILE
OPENING BRIEF IN EXCESS
OF PAGE LIMIT
INSTANTER
(copy attached), in the above
entitled matter.
Donald J. Moran
Lauren Blair
Pedersen & Houpt, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
OF ILLINOIS, INC.
One ofI~fttomeys
PROOF OF SERVICE
Bridget Killing, a non-attorney, on oath states that he served the foregoing WASTE
MANAGEMENT
OF ILLINOIS, INC.’s MOTION
FORLEAVE
TO
FILE OPENING BRIEF
IN EXCESS OF PAGE LIMIT
INSTANTER
on the following parties via facsimile on this 1 3th
day ofMay, 2005.
Edward Smith
Richard S. Porter
Kankakee County State’s Attorney
Charles F. Heisten
Kankakee County Administration Building
HeatherK. Lloyd
189 East Court Street
Hinshaw & Culbertson
Kankakee, Illinois 60901
100 ParkAvenue, P.O. Box 1389
(815) 937-2930
Rockford, Illinois 61105-1389
(815) 937-3932 (fax)
(815) 490-4920
(815)
490-4901 (fax)
Bridget ~
~Jk~
C)
BEFORE THE ILLINOIS POLLUTION CONTROL BO~Q~K’SRECEIVEDOFFICE
MAY 132005
WASTE MANAGEMENT
OF
)
STATE OF ILLINOIS
ILLiNOIS, INC.,
Pollution Control Board
)
Petitioner,
)
)
v.
)
PCB04-186
)
(Pollution Control Facility
COUNTY BOARD OF KANKAKEE
)
Siting Appeal)
COUNTY, ILLINOIS,
)
)
Respondent.
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION FOR LEAVE TO FILE
OPENING BRIEF IN EXCESS OF PAGE LIMIT
INSTANTER
Petitioner, WASTE MANAGEMENT
OF
ILLINOIS, INC.
(“WMII”),
by its attorneys,
Pedersen & Houpt, moves the Illinois Pollution Control Board (“IPCB”) for leave, pursuant to
Section 10 1.302(k) ofthe Board’s Procedural Rules, to file,
instanter,
its Opening Brief in excess
of50 pages. In support of this motion, WMII states as follows:
1.
Pursuant to Section 40.1(a) ofthe Illinois Environmental Protection Act (“Act”),
WMII appeals the March 17, 2004 decision ofthe County Board of Kankakee County, Illinois
(“County Board”) denying WMII’s second Site Location Application for Expansion ofthe
Kankakee Landfill filed on September 26, 2003 (“2003 Application”). 415 ILCS
5/40.1(a)(2002). The County Board denied local siting approval ofthe 2003 Application on the
grounds that Criteria (i), (iii) and (vi) ofSection 39.2(a) ofthe Act were not met. 415 ILCS
5/39.2 (2002).
2.
WMII contends in this appeal that the County Board’s denial ofCriteria (i), (iii)
and (vi) is against the manifest weight ofthe evidence because those same criteria were
overwhelmingly approved in connection with WMII’s prior Site Location Application filed on
August 16, 2002 (“2002 Application” or “First Application”). There is no evidence in the record
that would support a reversal ofthe County Board’s prior approval ofCriteria (i), (iii) and (vi) in
the 2002 Application, and the denial ofthese criteria in the 2003 Application, particularly given
that the County Board members who reversed theirvotes acknowledged that 2003 Application
was essentially the same as the 2002 Application. Thus, the reversal can only be explained by
the improper
exparte
advocacy efforts of Mr. Bruce Harrison and other landfill opponents which
sought to persuade County Board members, through threats and harassment, to change their prior
approval and vote to deny the 2003 Application. Because such considerations are improper and
do not provide a legitimate or sufficient basis to decide a site location application in accordance
with the Act, WMII seeks a ruling that the County Board’s denial ofCriteria (i), (iii) and (vi) is
against the manifest weight ofthe evidence, and a reversal of the decision denying local siting
approval.
3.
As indicated in the preceding paragraph, the factual and legal issues presented in
this appeal are extensive and complex. In order to adequatelypresent those issues, W1\411 must
describe in sufficient detail the siting proceedings for the proposed expansion and the substantial
ex parte communications that influenced the March 17, 2004 Decision.
4.
WivIll has presented the relevant facts and legal arguments as concisely as
possible in its Opening Briefby summarizing the salient facts in the body ofthe Opening Brief
(which is under 50 pages), and attaching a detailed summary ofthe improper
exparte
contacts as
Appendices. However, the Opening Brief and attached Appendices exceed 50 pages.
5.
WMII seeks leave to exceed the 50-page limit because it is unable to adequately
present the factual and legal issues in this appeal in 50 pages or less.
2
6.
The County Board has been granted additional time to prepare its Response Brief.
Hence, the County Board will not be prejudiced by the granting ofthis motion.
7.
The amicus curiae have already been granted leave to file briefs in excess ofthe
prescribed page limit.
WHEREFORE, Petitioner, WASTE MANAGEMENT OF ILLINOIS, INC., respectfully
requests that the IPCB grant it leave to file its Opening Brief in excess of50 pages
instanter,
and
providing suchother and further relief as the IPCB deems appropriate.
Respectfully submitted,
WAKE MANAGEMENT OF ILLINOIS, INC.
By
One
L~&
ofItsAt
/
rneys
L
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
3
RECE~V~D
CLERK’S OFFJC~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
MAY 13 2005
WASTE MANAGEMENT OF
)
STATE
OF ILLINOIS
ILLINOIS, iNC.,
)
pollution Control Board
)
Petitioner,
)
)
v.
)
PCBO4-186
)
(Pollution Control Facility Siting Appeal)
COUNTY BOARD OF KANKAKEE
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that on May 13, 2005, we filed with the Illinois Pollution Control
Board, the attached BRIEF IN
SUPPORT OF PETITIONER WASTE MANAGEMENT OF
ILLINOIS, INC.’S APPEAL
in the above entitled matter.
W
MANAGEMENT
OF ILLINOIS, INC.
BY~LOne
ofIts Ay~tomeys
/~
Donald J. Moran
LaurenBlair
Pedersen & Houpt, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
PROOF OF SERVICE
Bridget Killing, a non-attorney, on oath states that he served the foregoing BRIEF IN
SUPPORT OF PETITIONER WASTE MANAGEMENT OF ILLINOIS, INC.’S APPEAL
on the following parties via facsimile on this 13th day ofMay, 2005.
Edward Smith
Richard S. Porter
Kankakee County State’s Attorney
Charles F. Helsten
Kankakee County Administration Building
Heather K. Lloyd
189 East Court Street
Hinshaw & Culbertson
Kankakee, Illinois 60901
100 Park Avenue, P.O. Box 1389
(815)
937-2930
Rockford, Illinois 61105-1389
(815) 937-3932 (fax)
(815) 490-4920
(815)
490-4901 (fax)
Bridget Killing1
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~4AY
132005
WASTE
MANAGEMENT
OF
)
P~t1~)EnControlBoard
ILLINOIS, INC.,
)
)
Petitioner,
)
)
v.
)
PCBO4-186
)
(Pollution Control Facility Siting Appeal)
COUNTYBOARD OF KAMKAKEE
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
BRIEF IN SUPPORT OF PETITIONER
WASTE MANAGEMENT OF ILLINOIS, INC.’S APPEAL
PEDERSEN & HOUPT
By: Donald J. Moran
Attorney for Waste Management ofIllinois, Inc.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
312.641.6888
312.641.6895 (facsimile)
TABLE OF CONTENTS
INTRODUCTION
1
A. History ofSite Location Application Filings
2
1.
Size and Capacity ofthe Expansion
3
2.
2002 Application
3
3.
2003 Application
5
II. STATEMENT
OF FACTS
8
A. Summary ofEvidence in the Record Demonstrating that Criteria (i), (iii)
and
(vi) Were
Established
8
1.
Criterion (i): The Expansion is Necessary to Accommodate the Waste Needs ofthe
Area that it is Intended to Serve
8
2.
Criterion (iii): The Expansion Is Located so as to Minimize Incompatibility with the
Character ofthe Surrounding Area and to Minimize the Effect on the Value ofthe
Surrounding Property
10
(a)
Compatibility
10
(b)
Property Value
12
3.
Criterion (vi): The Traffic Patters to or from the Expansion are Designed to Minimize
Impact
on Existing Traffic Flows
15
(a) Mr. StephenCorcoran
15
(b)
Mr. BrentCoulter
19
B. Mr. Harrison’s
Improper
Ex Parte
Communications with County Board Members
21
1.
The Harrison-Watson-Keller Connection
22
2.
Harrison’s
Ex Parte
Contacts with County Board Members
24
C.
Ex Parte
Letters and Telephone Calls to County Board Members
27
III.
ARGUMENT
28
A. THE COUNTY BOARD’S DENIAL OF THE 2003 APPLICATION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE
28
1.
Criterion (i) Was Established
31
2.
Criterion (iii) Was Established
31
3.
Criterion (vi) Was Established
34
B. THE COUNTY BOARD’S DENIAL WAS BASED ON
EXPARTE
COMMUNICATIONS AND OTHER CONSIDERATIONS OUTSIDE
THE
RECORD
37
IV.
CONCLUSION
40
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT
OF
)
ILLINOIS,
INC.,
)
)
Petitioner,
)
)
v.
)
PCBO4-186
)
(Pollution Control Facility Siting Appeal)
COUNTY BOARD OF KANKAKEE
)
COUNTY, ILLiNOIS,
)
)
Respondent.
)
BRIEF IN SUPPORT OF PETITIONER
WASTE MANAGEMENT OF ILLINOIS, INC.’S APPEAL
Petitioner, WASTE MANAGEMENT OF ILLiNOIS, iNC. (“WMII”),
by
and through its
attorneys, Pedersen & Houpt, hereby submits this brief in support ofits appeal ofthe decision of
Respondent, County Board ofKankakee County, Illinois (“County Board”), denying WMII’s
2003 Site Location Application for Expansion of the existing Kankakee Recycling and Disposal
Facility (“Kankakee Landfill”).
I.
INTRODUCTION
Pursuant to Section 40.1(a) ofthe Illinois Environmental Protection Act (“Act”) 415
ILCS
5/40.1(a),
WMII appeals the County Board’s decision denying WIVIII’s second Site
Location Application for Expansion ofthe Kankakee Landfill filed on September 26, 2003
(“2003 Application” or “Second Application”). 415 ILCS 5/40.1(a) (2002). On March 17, 2004,
the County Board denied local siting approval of the 2003 Application on the grounds that
Criteria (i), (iii) and (vi) of Section 39.2(a) ofthe Act were not met (“March 17 Decision”). 415
ILCS 5/39.2 (2002). However, the 2003 Application was essentially the same as WMII’s prior
Site Location Application, which was filed
on August 16, 2002
(“2002 Application” or “First
Application”), and overwhelmingly approved by the County Board on January 31, 2003.
The County Board’s denial ofCriteria (i), (iii) and (vi) here is againstthe manifest weight
ofthe evidence. There is no evidence in this record that would support a reversal ofthe County
Board’s prior approval ofCriteria (i), (iii) and (vi), and denial of these criteria in the 2003
Application. The reversal is explained by the only substantive fact that differs from the County
Board’s consideration ofthe 2002 Application: the planned and targeted
exparte
advocacy
efforts by Mr. Bruce Harrison and other landfill opponents to present and argue their case to
County Board members outside ofthe siting process. Their efforts included not only providing
information opposing Criteria (i), (iii) and (vi), but also harassing and threatening individual
County Board members.
While it maybe understandable that County Board members might change their decision
based on political pressure and public opposition, such considerations are improper and do not
provide a legitimate or sufficient basis to decide a site location application. Thus, the County
Board’s denial ofCriteria (i), (iii) and (vi) was fundamentally unfair and against the manifest
weight ofthe evidence, and must be reversed by the Illinois Pollution Control Board (“IPCB”).
A.
History of Site Location Application Filings
The
efforts to obtain local siting approval for the expansion ofthe Kankakee Landfill
(“Expansion”), is a long and complex story involving conspiracy, deceit,
perjury and political
intimidation. The full story cannot be succinctly told. Wivill will make its best effort to present
the relevant facts here as clearly and concisely as possible.
2
1.
Size and Capacity of the Expansion
The Expansion will be constructed on a 664-acre site located in unincorporated Kankakee
County. It includes a 302-acre waste disposal area, with a disposal capacity ofapproximately 30
million tons. (2002 App. at Crit. 2, p. 1-1, 3-1; Crit. 1, p. 1.)’ The Expansion will receive 500
tons per day (“tpd”) of solid waste from Kankakee County and 3,500 tpd of out-of-county waste.
(11/20/02 Tr. Vol. 9 at 88.) In accordance with the Amended and Restated Host Community
Agreement (“Host Agreement”), the Expansion may not accept more than 987,000 tons ofout-
of-county waste in any year. (11/20/02 Tr. Vol. 9 at 88-90; 2002 App. at Additional
Information, Tab C, Host Agreement, p. 7.) This amount will proportionately decrease as the
amount ofKankakee County waste increases to ensure disposal ofthe latter. (2002 App. at
Additional Information, Tab C, Host Agreement, p. 7.) There is no daily or annual limit on the
disposal ofwaste generated in Kankakee County. The Expansion will provide disposal capacity
for 27 years. (2002 App. at Executive Summary, p. ES-i.)
2.
2002 Application
WMII initially filed its Site Location Application with the County Board pursuant to
Section 39.2 ofthe Act on March 29, 2002, requesting local siting approval for the Expansion.
415 ILCS
5/39.2
(2002). This initial application was never considered by the County Board due
to the first motion to dismiss filed by Objector Michael Watson (“Objector Watson”) two
References to materials containedin the 2002 Application and the 2003 Application will be cited herein as “(2002 App. at
.)“,
and ‘(2003 App. at
_.)“
References to the transcripts of the public hearings conducted from November 18 through December
6, 2002 on the 2002 Application will be cited as “Lj_/02 Tr. Vol.
at
.)“
References to the transcripts ofthe public
hearings conducted from January 12 to January 21, 2004 on the 2003 Application will be cited as “(l/_/04 Tr. Vol.
at.)”
References to the 2002 or 2003 public hearing exhibits will be cited as
“(~
Ex.
—,
2002.)” and
“(~
Ex.
,
2003.)” References
to the transcripts of the IPCB’s review hearingwill be cited as “(IPCB
41_/05
Tr. at
_.)“
References to the IPCI3 review
hearing exhibits will be cited as “(IPCB
—
Ex. No.
_.)“
References to the evidence deposition transcripts of the IPCB’s review
hearing will be cited as “(last name
_/_/05
Tr. at
.)“
3
business days prior to the start of
the public hearing, which claimed lack ofnotice on certain
property owners. Consequently, WMII resubmitted the 2002 Application, which became the
first application considered by the County Board. The 2002 Application contained “the
previously filed Site Location Application dated March 29, 2002” with additional notice
materials. (2002 App. at Cover Letter.)
In accordance with Kankakee County Resolution No. 00-09-12-156, entitled “Kankakee
County, Illinois Siting Ordinance for Pollution Control Facilities” (“Ordinance”), the County
Board Chairman referred the matter to the Solid Waste Sub-Committee ofthe Kankakee County
Regional Planning Commission (“RPC”). The RPC conducted the public hearings on the 2002
Application. Two members ofthe County Board were members ofthe RPC, including the RPC
Chairman, Mr. George Washington, Jr.
Public hearings were conducted on the 2002 Application for 11 days between
November 18 through December 6, 2002. For a second time, Objector Watson filed a motion to
dismiss alleging lack ofnotice on certain property owners, this time waiting until the end ofthe
public hearing on December 4, 2002. The Hearing Officer denied the motion.
After careful consideration, the RPC issued its report titled “Recommendations Relating
to the Application of Waste Management ofIllinois, Inc. for Local Siting Approval ofan
Expansion ofthe Existing Kankakee Landfill” (“RPC 2003 Approval”) to the County Board on
January 22, 2003. In its Approval, the RPC found that: (i) all jurisdictional requirements had
been met; (ii) the proceedings were conducted in a fundamentally fair manner; and (iii) all
applicable statutory criteria were met. (2003 RPC Approval, p. 1-7.) The RPC recommended
that the County Board grant local siting approval for the 2002 Application, subject to certain
recommended conditions. (2003 RPC Approval, p. 7.)
4
The County Board accepted the RPC’s recommendation and granted site location
approval for the Expansion on January 31, 2003, in a seven-page written decision entitled
“Kankakee County Board Decision Regarding the Application ofWaste Management of Illinois,
Inc. For Local Siting Approval ofAn Expansion ofthe Existing Kankakee Landfill” (“2003
Decision”). In its Decision, the County Board unanimously rejected Objector Watson’s claim of
alleged notice deficiency, and found by overwhelming votes that each ofthe nine siting criteria
were met.Appeals2
ofthe County Board approval were filed by three objectors, including Objector
Watson. The IPCB vacated the approval on the technical ground ofinsufficient service ofpre-
filing notice on3.one out2003ofa
Application
total of 76 property owners, Mrs. Brenda Keller.3
As a result ofthe IPCB’s decision, WMII filed the 2003 Application requesting local
siting approval for the same expansion as the 2002 Application. The 2003 Application was
essentially the same as the 2002 Application. (2003 App. at Cover Letter; 1/12/04 Tr. Vol. 1 at
73.) As with the 2002 Application, the County Board referred the 2003 Application to the RPC.
2 The County Boardvoted as follows: Jurisdiction (20 aye-0 nay); Fundamental Fairness (20 aye-0 nay); Criterion (i) (22 aye-0
nay); Criterion (ii) (18 aye-3 nay); Criterion (iii) (21 aye-0 nay); Criterion (iv) (22 aye-0 nay); Criterion (v) (21 aye-0 nay);
Criterion (vi) (19 aye-0 nay); Criterion (vii) (22 aye-0 nay); Criterion (viii) (18 aye-i nay); and Criterion (ix) (20 aye-0 nay).
(IPCB WMII Ex. No. 7.)
The story of the Kellers, Objector Watson and pre-filing notice is a dubious tale ofdeceit and denial. Mrs. Keller and her
husband, Robert Keller, are personal friends of Objector Watson. Mr. Keller performs work for Objector Watson’s company,
United Disposal, without compensation. It was Objector Watson who approached the Kellers and asked them to sign affidavits
claiming that neither of them hadreceived pre-filing noticeof the 2002 Application. City ofKankakee v. County ofKankakee, et
~ Nos. PCB 03-125, 03-133, 03-134 and 03-135 (cons.), slip op. at 17 (August 7, 2003), affirmed Waste Management of
Illinois, Inc. v. Illinois Pollution Control Board, et al., 2005 Ill.App.LEXIS 277, (3rd Dist. 2005); Waste Management of Illinois,
Inc. v. Illinois Pollution Control Board, et al,, No. 100166, Petition for Leave to Appeal to the Illinois Supreme Court filed
February
25,
2005. Mr. Keller later admitted that pre-filing noticewas made to him and his wife at their residence. (Waskosky
3/30/05 Tr. at 28:1-24; 29-34.)
5
Once again, the RPC conducted the public hearings on the 2003 Application, and two County
Board members served on the RPC, including RPC Chairman Mr. Washington.
The public hearings on the 2003 Application were conducted from January 12 through
January 21, 2004. WVIII presented the testimony ofthe same eight expert witnesses who
testified on the 2002 Application. Two witnesses testified at the public hearings in opposition to
the 2003 Application. All ofthe testimony and documentary evidence for the 2002 Application
was admitted and is part ofthe record for the 2003 Application. (1/12/04 Tr. Vol. 2 at 11-15.)
Five motions to dismiss were filed afterthe public hearings commenced. In a third
attempt to thwart the siting process for the Expansion, a motion to dismiss was filed alleging
insufficient notice regarding a property whose beneficiarywas Objector Watson. Although
Objector Watson was represented by counsel at the public hearing, it was Objector Merlin
Karlock (“Objector Karlock”) who presented this motion, which alleged that WMII failed to
serve pre-fihing notice on First American Trust No. 2704 (“Trust”). Objector Watson was the
beneficiary ofthe Trust. (1/12/04 Tr. Vol. 1 at 30.) Evidence ofservice on the Trust via
certified mail (returned unclaimed) was presented (1/12/04 Tr. Vol. 1 at 3 1-32), and the motion
was denied by the Hearing Officer.
Objector Watson and Mr. Keller participated in the public hearings and continued their
opposition to the Expansion. (IPCB
4/6/05
Tr. at 109:20-24; 110:1-3.) They were joined by Mr.
Bruce Harrison. ObjectorWatson, Mr. Keller and Mr. Harrison are long-time friends and are
staunchly opposed to the Expansion. (IPCB
4/6/05
Tr. at 109:20-24; 110:1-3;
114:5-9;
114:10-
13.) Like Mr. Keller, Mr. Harrison worked for Objector Watson and his company, United
Disposal, without compensation. (IPCB Tr. 4/6/05 Tr. at 56:17-24; 57:1-11; 98-99.) The three
men communicate on a continuing basis. (IPCB
4/6/05
Tr. at 102:2-8; 118:18-24; 119:1-8.)
6
Mr. Harrison participated in the public hearings, claiming to be a concerned citizen, but
repeatedly refused to providehis address or residence. (1/16/04 Tr. Vol. 10 at 86; 1/21/04 Tr.
Vol. 13 at 250.) He was in fact residing in a trailer on Mr. Keller’s property. (IPCB 4/6/05 Tr. at
111:2-19.) He later moved his trailer to Objector Watson’s property and resided there. (IPCB
4/6/05
Tr. at 121:19-24; 122:1-19.) During the public hearings on the 2003 Application, Mr.
Harrison continuously cross examined witnesses (1/14/04 Tr. Vol. 6 at 87-93; 1/14/04 Tr. Vol. 8
at
56-58;
66-68; 1/15/04 Tr. Vol. 9 at 91-94,
105-106, 114-117; 1/16/04 Tr. Vol. 10 at
57-59;
1/16/04 Tr. Vol. 11 at 66-72) and offered public comment. (1/16/04 Tr. Vol. 10 at 86-9 1;
1/21/04 Tr. Vol. 13 at
250-251.)
He frequently did so after conferring with Objector Watson, his
lawyer or Mr. Keller. (1/15/04 Tr. Vol.9 at 91:7-14; 94:10-15, 114:3-7; 1/16/04 Tr. Vol. 10, p.
87, 92; 1/16/04 Tr. Vol. 11, p. 86.)
After lengthy and studied deliberation, on March 9, 2004, the RPC issued a 49-page
report titled “Recommendations Relating to the Application of Waste Management ofIllinois,
Inc. for Local Siting Approval ofan Expansion ofthe Existing Kankakee Landfill” (“RPC 2004
Approval”). In its Approval, the RPC again found that: (i) all jurisdictional requirements had
been met; (ii) the proceedings were conducted in a fundamentally fair manner; and (iii) all
applicable statutory criteria were met. The RPC again recommended that the County Board
grant local siting approval for the 2003 Application, subject to recommended conditions. (2004
RPC Approval, p. 13.)
On March 17, 2004, the County Board accepted certain recommendations of the RPC and
voted to approve Criteria (ii), (iv), (v), (vii), (viii) and (ix). However, the County Board reversed
its nearly unanimous decision approving the 2002 Application and voted to deny Criteria (i), (iii)
7
and (vi).4 A written decision denying approval of the 2003 Application was prepared
and
filed
with the County Clerk on March
25,
2004.~
WMII
filed with the
IPCB a
Petition for Hearing to Contest Site Location Denial on April
22, 2004, contesting the March 17 Decision and the County Board’s denial ofCriteria (i), (iii)
and (vi) as unsupported by the record and
against the manifest weight ofthe evidence.
II.
STATEMENT OF FACTS
A.
Summary of Evidence in the Record Demonstrating that Criteria (I), (iii) and
(vi)
Were Established
1.
Criterion (i): The Expansion is Necessary to Accommodate the Waste
Needs of the Area that it
is
Intended to Serve
Ms. Sheryl Smith testified on Criterion (i). (1/13/04 Tr. Vol. 4 at 48.) She prepared a
written report that was included in both the 2002 and 2003 Applications. The report included in
the 2003 Application was the same report included in the 2002 Application, except that it
included data that updated the annual Illinois Environmental Protection Agency (“IEPA”)
information on waste receipts and disposal capacity contained in the 2002 Application. This
information further supported her opinion. (1/12/04 Tr. Vol. 1 at 73; 1/13/04 Tr. Vol. 4 at 48,
51.) The service area for the Expansion is the same in both Applications and include Kankakee,
Cook, DuPage, Kane, Kendall, Grundy
and Will Counties in Illinois,
and Jasper, Lake, Newton
and Porter Counties in Indiana. (2002 App. at p. 4; 11/20/02 Tr. Vol. 9 at 12; 1/13/04 Tr. Vol. 4
at
54.)
The capacity ofthe Expansion is 30 million tons. (1/13/04 Tr. Vol. 4 at 90.)
~‘ The County Board voted to deny Criteria (i), (iii) and (vi)as follows: Criterion (i) (12 aye- 16 nay); Criterion (iii) (10 aye- 18
nay); and Criterion (vi) (12 aye-16 nay). (IPCB WMII Ex. No. 8.) For the 2002 Application, therewas not a single “no” vote on
any of these threecriteria. (IPCB WMII Ex. No. 7.)
~WMII submitted, and the County Board agreed to consider, amotion to renewconsideration ofthe 2003 Application. At the
April 13, 2004 County Board meeting, the County Board deadlocked on the motion in a 13-13 vote. (IPCB WMII Ex. No. 9.)
8
Ms. Smith described her methodology in evaluating need. She collected information on
population for each county in the service area over the proposed 27-year operating life ofthe
Expansion
and obtained
waste generation rates and recycling goals from
the solid waste plans for
each county in the service area. Ms. Smith relied on recycling goals included in each ofthe
county solid waste plans because the recycling rate data reported to the JEPA is generally based
upon municipal waste only, not taking into consideration other waste streams that may be
recycled. She pointed out that if actual recycling rate data is not available from commercial
generators, the counties make an estimate based on population and
submit that estimate to IEPA.
(11/20/02 Tr. Vol. 9 at 10-13,
54-55.)
Ms. Smith estimated the net amount ofwaste requiring disposal from the service area
over the proposed 27-year operating life. (1/13/04 Tr. Vol. 4 at
50-5
1.) This
amount ranged
from 105 to 188 million tons, depending upon the percentage of recycling that each county is
able to achieve. (2003 App. at Crit. 1, p. 30; 11/20/02 Tr. Vol. 9 at 23; 1/13/04 Tr. Vol. 4 at 50,
54-55.)
Next, Ms. Smith identified the available disposal capacity. (11/20/02 Tr. Vol. 9 at 10-1 1;
1/13/04 Tr. Vol. 4 at 51.) She collected information on waste disposal facilities in the states of
Illinois, Indiana, Wisconsin and Michigan
to identify which facilities were currently permitted,
the volume ofwaste received each year, remaining disposal capacity and service area. (11/20/02
Tr. Vol. 9 at 14.) Based on
her evaluation, she estimated the amount ofavailable disposal
capacity to be
56
million tons. (2003 App. at Crit. 1, p. 30; 1/13/04 Tr. Vol.
4 at
74-75.)
If no
new facilities are permitted, this available disposal capacity will run out in 2009. (1/13/04
Tr.
Vol. 4
at 74.)
9
She testified that the amount of
available disposal capacity (56 million tons) was less than
the net amount ofwaste
requiring disposal (105 to 188 million tons), resulting in a capacity
shortfall of49 million to 132 million tons. Based on the datapresented and Ms. Smith’s
evaluation, the Expansion is necessary to accommodate the waste needs ofthe service area it is
intended to serve. (1/13/04 Tr. Vol. 4 at 51.) Ms. Smith was the only witness to present facts,
prepare a report, and evaluate the data regarding Criterion (i). No one else testified orpresented
data that contradicted Ms. Smith’s conclusion that the Expansion is necessary to meet the needs
ofthe service area.
2.
Criterion (iii): The Expansion Is Located so as to Minimize
Incompatibility with the Character ofthe Surrounding Area and to
Minimize the Effect on the Value of the Surrounding Property
(a)
Compatibility
Mr.
J. Christopher Lannert testified regarding compatibility, the first part ofCriterion
(iii). The report prepared by The Lannert Group contained in the 2002 Application is the exact
same report contained in the 2003 Application. (1/13/04 Tr. Vol. 4 at 10.)
The Lannert Group
evaluated the location ofthe Expansion relative to adjacent land uses within 1
V2
miles of the
Expansion by performing a number ofactivities, including review ofan aerial photograph ofthe
surrounding area, field survey ofthe surrounding area, review ofKankakee County and City of
Kankakee comprehensive land use plans, zoning maps and ordinances, and review ofthe
Expansion from key vantage points near the site. (11/18/02 Tr. Vol. 3
at
59;
2002 App. at Crit.
3a, p. 4.) Specifically, the Lannert Group reviewed the County ofKankakee Zoning
Ordinance
and Map, the County of
Kankakee Comprehensive Plan and Map, and other related documents.
(2002 App. at Crit. 3a, p.
4.) The Lannert Group also conducted field surveys, including visits
to
municipalities within the study area and numerous follow-up field investigations of the area
10
surrounding the Expansion and its environs in January and March, 2002. (2002 App. at Crit. 3a,
p.4.)
Mr. Lannert testified that the predominant land uses within the 1
V2
mile study area
surrounding the Expansion
include
agricultural fields
and/or open space and scattered homesites.
The agricultural fields and/or
open space within the study area account for approximately
94
percent ofthe land use. (11/18/02 Tr. Vol. 3 at 60.) The remaining 6 percent ofthe surrounding
area is of an industrial, residential or commercial use. (2002 App. at Crit. 3a, p. 7.)
Residential development accounts for approximately 3.8 percent ofthe study area. (2002
App. at Crit. 3a, p. 7.) Residential uses adjacent to the Kankakee Landfill have coexisted since
its inception. (2002 App. at Crit. 3a, p. 7.)
All ofthe immediately adjacent land uses and physical improvements serve as
appropriate land use buffers or transitions to surrounding land uses. Most ofthe land within the
study area is undeveloped. (2002 App. at Crit. 3a, p. 6.) The Expansion area is presently zoned
Al (agricultural). Sanitary landfills are permitted as a special use within the County zoning
district of Ii (light industrial). (2002 App. at
Crit. 3a, p. 10.)
Mr. Lannert testified that a landscape screening plan had been
prepared for the
Expansion. The landscape screening plan incorporates existing in-place vegetation next to
existing homes, and proposes additional screening berms that will be developed around the
Expansion. The screening berms will vary in height, between approximately 16 and 18 feet.
They will include ornamental and deciduous trees, planted along the top, to further minimize any
impact ofthe Expansion on adjacent properties. (11/18/02 Tr. Vol. 3 at 69-70.)
Mr. Laimert concluded that the Expansion is compatible with the character ofthe
surrounding area. (11/18/02 Tr. Vol. 3 at 72; 1/13/04 Tr. Vol. 4 at 21.)
Mr. Lannert was the
11
only witness to present data, prepare a report and testify regarding the first part of Criterion (iii).
No data, facts or opinion were presented to rebut or refute
his conclusion.
(b)
Property Value
Ms. Patricia McGarr testified on the second part ofCriterion (iii), which relates to
whether the Expansion is located so as to minimize any effect on the value ofsurrounding
property.
She testified that she received an associate’s degree from Richard
J. Daley College.
(11/19/02 Tr. Vol. 6 at 6-7; Pet. Ex. 6, 2002.) While she was not able to produce a copy ofher
diploma, the
unrefuted evidence established that she took the required courses,
with a cumulative
grade point average of 3.75 on a 4.0 scale, to have earned the degree. (Pet. Ex. 26, 2002.)
The
degree was not required to obtain her real estate appraiser license or the MAT designation.
(1/12/04 Tr. Vol. 2 at 43-44.) Nevertheless, Richard J. Daley College awarded her a degree in
January, 2004. (1/12/04 Tr. Vol. 2 at 100-103.)
Ms. McGarr performed a comparable property value analysis for properties surrounding
the Kankakee Landfill
and the Expansion. She explained that if an impact existed as a result of
an existing landfill, that impact would be reflected by a comparison
ofthe range ofsale prices,
annual rates of appreciation,
and other indicators to properties located
outside the landfill’s
potential area ofinfluence. (11/19/02 Tr. Vol. 6 at 10-il.) She stated that a comparable
property analysis is accomplished by comparing a target area and a control area. The target area
would be the residential and agricultural area that is located closest to the Kankakee Landfill.
The control area would be the residential and agricultural areas located outside any area of
influence of the Kankakee Landfill. (11/19/02 Tr. Vol. 6 at 11.)
12
Ms. McGarr selected target and control areas
which are located in the same general area
in the County, and which
have the same tax rates, same school districts and similar amenities.
The only general difference between the two
is the proximity to the Kankakee Landfill.
(11/19/02 Tr. Vol. 6 at 51.) She testified that she collected data for her study from Township
Assessment Offices and reviewed information from the Multiple Listing Service (“MLS”) of
Northern Illinois. (11/19/02 Tr. Vol. 6 at 11.) With this data she determined and compared
annual rates of appreciation, average sale prices and average holding times. (2003 App. at Crit.
3b.)
Ms. McGarr considered two farmland sales and three residential sales that occurred after
November 2002. The additional sales data further supported her opinion. (1/12/04 Tr. Vol. 2 at
33, 35-36.)
Ms. McGarr performed three separate studies as part ofher evaluation, including a
residential study for the Kankakee Landfill, an agricultural (or farmland) study for the Kankakee
Landfill, and a residential study for the Settler’s Hill Landfill located in Kane County. (11/19/02
Tr. Vol. 6 at 12, 16 and 19.)
The results ofher first study showed that there were 13 sales in the Target Area during
the 4-year period. (2003 App. at Crit. 3b, p. 4, 6.) The homes had an average sale price of
$117,265, and an average lot size of3.62 acres. There were 12 homes sold in the Control Area
during the 4-year period. The homes had an average lot size of 0.77 acres, and an average sale
price of $93,573. (2003 App. at Crit. 3b, p. 6.) She testified that there were two sales that
occurred in the Target Area that were very proximate to the Kankakee Landfill and sold for
higher than the average price in the area: one built in 1997 and sold in 2000 for $223,000 on six
13
acres ofland, and one built in 1993 and sold in 2000 for $260,000 on two acres ofland.
(11/19/02 Tr. Vol. 6 at 13-14.)
To compare the Target and Control Area site sizes for her first study, Ms. McGarr
adjusted the sale price for the variation in lot sizes, which resulted in a negative adjustment of
$24,064, and then an adjusted average sale price of $95,890. (2003 App. at Crit. 3b, p. 8.) She
also testified that she looked at the entire Kankakee market from the MLS since January 2000,
which showed 200 single-familyhome sales, ranging in sale price from $11,000 to $252,500,
with an average sale price of$79,942. (2003 App. at Crit. 3b, p. 8.) Ms. McGarr testified that
the data from the first residential study ofthe Kankakee Landfill indicated that the average sale
price in the Target Area was higher than in the Control Area and the general Kankakee area. It
also reflected that the Kankakee Landfill had not kept new residential development from
occurring. (11/19/02 Tr. Vol. 6 at 16.)
In Ms. McGarr’s second study, she testified that she evaluated the effect ofthe Kankakee
Landfill on surrounding farmland property values. (11/19/02 Tr. Vol. 6 at 16.) During the first
5-year period, the average sale price for farmland in the Target Area was $1,931 per acre, with
an average acreage of40 acres per sale. The average sale price in the Control Area was $2,018
per acre, with an average acreage of 93 acres per sale. In the second 5-year period, Ms. McGarr
stated that the average price for farmland in the Target Area increased to $3,089 per acre, with an
average of23 acres per sale. In the Control Area, the average sale price was $2,359 per acre,
with an average of 18 acres per sale. (2003 App. at Crit. 3b, p. 9.) The data indicated that
farmland properties surrounding the Kankakee Landfill experienced a greater increase in average
property value than property in the Control Area. (11/19/02 Tr. Vol. 6 at 18; 2003 App. at Crit.
3b,p.9.)
14
Ms. McGarr also testified about her study ofthe Settler’s Hill Landfill in Kane County,
Illinois. She selected Settler’s Hill because it: (i) has been operated by WMII for 20 years; (ii)
was located directly adjacent to an existing landfill; (iii) was located, at its inception, in a rural
area ofKane County; and (iv) was located near the Fox River, where recreational facilities
existed. Ms. McGarr testified that Settler’s Hill was similar in size (approximately 300 acres)
and daily volumes to that of the Expansion. (11/19/02 Tr. Vol. 6 at 19-20.)
In total, Ms. McGarr evaluated 922 sales in her residential study ofthe impact on
property values ofthe existing Settler’s Hill Landfill over the 20-year development period ofthe
facility. She testified “the data doesn’t reflect any negative or measurable discernible impact on
property values as a result ofproximity to the landfill. And
. .
.there’s no measurable impact in
annual rates ofappreciation.” (11/19/02 Tr. Vol. 6 at 22.)
Ms. McGarr testified that her evaluation ofsales in the three studies indicated that the
existing landfills had no negative impact on property values. (11/19/02 Tr. Vol. 6 at 24.)
Ms. McGarr was the only witness to present data, prepare a report and testify regarding
the second part ofCriterion (iii). No data, facts or opinion were presented to rebut her
conclusion that the Expansion was located so as to minimize the effect on the value of
surrounding property.
3.
Criterion (vi): The Traffic Patters to or from the Expansion are
Designed to Minimize Impact on Existing Traffic Flows
(a)
Mr. Stephen Corcoran
Mr. Stephen Corcoran testified regarding Criterion (vi) and the written report that sets out
the analysis and conclusions ofthe traffic study. (11/19/02 Tr. Vol.
5
at 21.)
Mr. Corcoran’s analysis of the traffic impact first consisted of an evaluation ofexisting
roadways and actual field conditions. This included performing a number oftraffic counts along
15
the surrounding roadways. (11/19/02 Tr. Vol.
5
at 21.) An inventory ofexisting roadways was
performed to determine number of lanes, traffic controls, speed limits and jurisdiction. (11/19/02
Tr. Vol.
5
at 2 1-22.) As part ofthe second phase of his analysis, Mr. Corcoran determined
projected traffic from the Expansion, including number ofvehicles and anticipated directional
distribution. (11/19/02 Tr. Vol.
5
at 22.) Mr. Corcoran combined the projected traffic from the
Expansion with existing roadway traffic and conditions to evaluate how the roadway system
would operate. (11/19/02 Tr. Vol.
5
at 22.) As part ofthe last phase ofthe study of existing
traffic flows and projected Expansion traffic, a gap study was performed, sight distance was
evaluated, access drive (entrance) geometrics were reviewed, on-site stacking conditions were
considered, and recommended improvements to the design ofthe Expansion access drive were
identified. (11/19/02 Tr. Vol. Sat 30-34; 1/14/04 Tr. Vol. 7 at
50-65.)
The Expansion will be served via a single access drive offofU.S. Route 45/52, which is
under the jurisdiction ofthe Illinois Department ofTransportation (“DOT”). The Kankakee
Landfill has separate inbound and outbound lanes. As part ofthe Expansion, the existing access
drives will be replaced by any upgraded, single access drive that will be located at the
approximate crest ofa hill. (11/19/02 Tr. Vol.
5
at 29-30, 33; 2002 App. at Crit. 6, p. 3.)
In the vicinity ofthe Expansion, the speed limit on U.S. Route 45/52 is 55 miles per hour
(mph). U.S. Route 45/52 is a two-lane north-south highway, providing regional access from the
Interstate 57 interchange located approximately 3.2 miles to the north, and carrying an
approximate existing two-way volume of 5,200 vehicles per day. (2002 App. at Crit. 6, p. 3,
5;
11/19/02 Tr. Vol.
5
at 24.) Existing traffic traveling along U.S. Route 45/52 during the morning
(7:00-8:00 a.m.) and evening (4:30-5:30 p.m.) peak hours was 368 vehicles and 435 vehicles,
respectively. Along 6000 South Road at its intersection with U.S. Route 45/52, it was
16
determined that there were approximately
5
to 15 vehicles traveling during the morning and
evening peak hours. (11/19/02 Tr. Vol.
5
at 24.)
Mr. Corcoran testified that the capacity ofU.S. Route 45/52 is approximately 1,200
vehicles per hour in both the northbound and southbound directions. Based on this information
and the existing traffic count data, Mr. Corcoran testified that U.S. Route 45/52 is operating at
approximately 37 percent of its capacity. (11/19/02 Tr. Vol.
5
at 25.)
Mr. Corcoran testifiedthat the Expansion will have an estimated total of600 trips per
day, or 300 vehicles into and 300 vehicles out of the site.6 Approximately 95-100 percent ofthe
Expansion traffic will be traveling to and from the north on U.S. Route 45/52, utilizing the
Interstate 57 (“1-57”) interchange. (11/19/02 Tr. Vol.
5
at 26.) With the addition ofExpansion
generated traffic, it is estimated that the capacity on U.S. Route 45/52 will be operating at 41
percent ofits capacity. (11/19/02 Tr. Vol.
5
at 28.)
Peak traffic from the Expansion is expected to occur between 12:00 noon and 1:00 p.m.
The Expansion peak hours do not coincide with the street peak hours on U.S. Route 45/52, which
occur from 7:00
-
8:00 a.m. and 4:30
-
5:30 p.m. (11/19/02 Tr. Vol.
5
at 27-28.) This is
significant because it minimizes any impact from the Expansion during street peak hours.
(11/19/02 Tr. Vol.5 at 28.)
School buses use U.S. Route 45/52 between 1-57 and 6000 South Road during the
morning peak hour (7:00-8:00 a.m.) and mid-afternoon period (3:00-3 :45 p.m.) for U.S. Route
45/52. (1/16/04 Tr. Vol. 10 at 12.) They do not coincide with the Expansion peak hour, 12:00
6
The projected number of trips to be generated by the Expansion does not include any traffic already generated by the Kankakee
Landfill. As such, the analysis evaluates the traffic impact as ifthe Expansion were an entirely new operation, without taking
into account the fact that Expansion generated traffic actually reflects an incremental increase over existing facility traffic, In
this manner, the analysis is conservative, in that it overstates any impact by assuming that all Expansion traffic is new traffic.
(2002 App. at Crit. 6, p. 7.)
17
noon-1:00 p.m. (11/19/02 Tr. Vol.
5
at 28.) School buses using U.S. Route 45/52 counted in
January 2002 were considered in Mr. Corcoran’s review, and he determined that there were no
potential conflicts betweenthe bus schedules and the anticipated traffic patterns from the
Expansion. (11/19/02 Tr. Vol.
5
at 27, 102-103; 1/14/04 Tr. Vol. 7 at 23-25, 44-46.) The school
bus count data was included in the 2003 Application. (2003 App. at Crit. 6.)
In accordance with Ordinance requirements defined in Section 4(2)-Design Standards,
Mr. Corcoran testified that there were more than adequate gaps to serve the Expansion traffic.
(11/19/02 Tr. Vol.
5
at 30; 1/14/04 Tr. Vol. 7 at 57-60.) Mr. Corcoran testified that the minimum
gap required was based first on the DOT minimum requirement of 11.5 seconds, and then that
number was adjusted for a semi-trailer pulling out onto a roadway and accelerating to 80 percent
ofthe posted speed, resulting in a gap requirement of 15.5 seconds. The 15.5 seconds is greater
than the minimum required by DOT. (1/14/04 Tr. Vol. 7 at 57.)
In addition, the upgraded Expansion access drive will include a separate southbound left
turn lane and a separate northbound right turn lane, to accommodate slowing vehicles. Wider
radii will be provided at the entrance. The plan ofoperations provides for sufficient and safe
vehicular movement in and around the site. (11/19/02 Tr. Vol.
5
at 33-34; 1/14/04 Tr. Vol. 7 at
50-55.)
Even though the existing entrance configuration operates at a Level ofService of A or B
(“LOS A” or “LOS B”) with Expansion generated traffic considered, the upgraded Expansion
access drive configuration will function almost exclusively at a LOS A during the street peak
hours. One movement will operate at a LOS B. The minimum LOS accepted by DOT is LOS
D. (2002App.atCrit.6,p.13.)
A sight distance analysis was performed at the Expansion access drive. (11/19/02 Tr.
Vol.
5
at 22.) The site distance evaluation was based on the guidelines published by the
18
American Association ofState Highway and Transportation Officials (“A.ASHTO”) for stopping
site distance criteria, based upon a maximum posted speed limit of
55
mph and a higher travel
speed of60 mph. According to the AASHTO guidelines, the stopping sight distance required
along U.S. Route 45/52 for speeds of60 mph is 570 feet. The actual field conditions were
measured and it was determined that the available site distance from the Expansion access drive
exceeds 570 feet in both directions. (2002 App. at Crit. 6 at 14.)
Based upon existing traffic volumes, Expansion peak hour traffic occurring during street
non-peak hours, ample capacity on U.S. Route 45/52, adequate traffic gaps to accommodate
turning vehicles and sight distance that exceeds regulatory standards, Mr. Corcoran concluded
that the traffic patterns to and from the Expansion have been designed to minimize impact on
existing traffic flows. (11/19/02 Tr. Vol.
5
at 34.)
(b)
Mr. Brent Coulter
Objector Watson presented one witness, Mr. Brent Coulter, to testify concerning
Criterion (vi). Mr. Coulter is a self-employed traffic engineer. (1/16/04 Tr. Vol. 10 at
5.)
Mr.
Coulter opined that the Expansion does not “minimize traffic impact on the surrounding area.”
(1/16/04 Tr. Vol. 10 at 7-8.)
Mr. Coulter gave three reasons for his opinion. The first was the impact of the Expansion
on school bus operations on U.S. Route 45/52. The second was the actual design of the
intersection improvements at the Expansion access drive. The third was “a sort ofgeneral
comment or concern with the criterion itself which restricts our evaluation only to impact on
existing traffic flow and the interpretation of what is existing.” (1/16/04 Tr. Vol. 10 at 10.)
Mr. Coulter expressed a concern about the possibility that an inattentive driver may run
his vehicle into the back of a slow or stopped school bus along U.S. Route
45/52.
(1/16/04 Tr.
19
Vol. 10 at 12-13, 30-3 1.) He explained that “my concern is not specifically pointing a finger at
truck drivers in general and saying that they’re all inattentive, but that certainly is a reality of
anybody driving a vehicle on a highway...” (1/16/04 Tr. Vol. 10 at 30-31.)
Mr. Coulter also expressed “criticisms and concerns” with the design ofthe
improvements at the Expansion access drive. (1/16/04 Tr. Vol. 10 at 14.) He agreed that the
“schematic” provided in the Criterion (vi) report was a “conceptual as opposed to a specific
construction design with appropriate details,” and he concurred with WMII’s recommendation
for adding northbound and southbound turn lanes at the entrance to the Expansion, which include
turn lane storage and tapers, acceleration and deceleration lanes. (1/16/04 Tr. Vol. 10 at 14, 33.)
His “criticisms and concerns” are with design dimensions. (1/16/04 Tr. Vol. 10 at 14-21.)
However, Mr. Coulter was not aware that an intersection design study had been provided
to DOT and approved, detailing each ofthe construction details ofthe proposed intersection,
including dimensions. (1/16/04 Tr. Vol. 10 at 33-34, 36-37; 1/14/04 Tr. Vol. 7 at 61.) He
admitted that DOT’s approval is often not acceptable to him. (1/16/04 Tr. Vol. 10 at 37.)
Mr. Coulter’s other concern about the access drive and Expansion entrance design related
to the selection of the sight distance standard to be applied. (1/16/04 Tr. Vol. 10 at 17.) Mr.
Coulter states that the Criterion (vi) analysis utilized a minimum stopping sight distance of570
feet, which he concurs is correct based on the design speed ofthe road, but opines that the
minimum site distance required is inadequate for the conditions. Mr. Coulter failed to recognize
that the sight distance analysis concluded that according to “AASHTO standards, the stopping
sight distance along US
45/52
for speeds of 6.0 mph is to be 570 feet. Field observations and
measurements conclude that the sight distance exceeds 570 feet in either direction ofthe
proposed Subject Site access drive.” (2002 App. at Crit. 6, p. 14) (emphasis supplied.)
20
In fact, Mr. Coulter acknowledged that, while standing at the location ofthe Expansion
access drive and looking northbound on U.S. Route 45/52, he could almost see to 1-57, over three
miles away. (1/16/04 Tr. Vol. 10 at 36.) (2002 App. at Crit. 6, p. 3.) Mr. Coulter did not verify
the exact site distance looking southbound on U.S. Route 45/52 from the Expansion access road,
but did not deny that it was at least 1,100 feet. (1/16/04 Tr. Vol. 10 at 36.)
Finally, Mr. Coulter believed that WMII should look ahead and consider future traffic
which was expected to be generated in the area. (1/16/04 Tr. Vol. 10 at 21-22.) He did not agree
to the specific wording ofCriterion (vi), which limits the evaluation to existing traffic flows.
(1/16/04 Tr. Vol. 10 at 22.) He believes in “a more liberal interpretation” of the statute, and
believes WIMII should have considered future traffic in its analysis, upwards of5-20 years, and
that its report was insufficient for failing to do so. (1/16/04 Tr. Vol. 10 at 22-23, 38-41.)
B.
Mr. Harrison’s Improper
~rPar/eCommunications
with County
Board
Members
In an unprecedented lobbying effort to influence and determine the local siting decision,
Mr. Harrison7 conducted a calculated and aggressive campaign intended to pressure and
persuade County Board members to vote against the 2003 Application. He was determined not
to go “back to work” until his mission was “resolved.” (4/7/05 Tr. at 221:16-18.) As discussed
herein, Mr. Harrison engaged in a variety ofimproper tactics to sway the decision of County
Board members prior to the March 17 Decision, including harassment and false claims that the
State’s Attorney, Edward Smith, authorized his
exparte
contacts. Mr. Harrison applied direct
political pressure by threatening to prevent the re-election ofCounty Board members who
~Although the record before the IPCB demonstrates that Mr. Harrison was the most aggressive opponent of the Expansion to
engage in improper
exparte
communications with County Board members, this brief includes significant improper
exparte
contacts by persons other than Mr. Harrison. ~ Summary ofEx
Parte
Communications to County BoardMembers by Persons
Other Than Bruce Harrison, attached as Appendix B.
21
refused to vote against the Expansion. In addition to harassment, false statements and threats,
Mr. Harrison provided County Board members with information, both orally and in writing, in
support ofhis opposition to the Expansion. The negative information that Mr. Harrison
discussed with and disseminated to County Board members directly related to the statutory
criteriathat were denied. In fact, the petitions he circulated for signature and presented to
County Board members were expressly to oppose out-of-county garbage and the landfill. (TPCB
4/6/05
Tr. at 182:17-24; 183:1-8.)
Neither Mr. Harrison, nor anyone else, had engaged in such tactics in connection with the
2002 Application.8 Not surprisingly, while the 2002 Application obtained overwhelming County
Board approval, the 2003 Application was denied. Most ofthe County Board members who
voted to approve the 2002 Application were contacted by Mr. Harrison in connection with the
2003 Application, and manyreversed their vote on the criteria that Mr. Harrison and other
opponents focused on in their campaign to defeat the 2003 Application.
1.
The Harrison-Watson-Keller Connection
Mr. Harrison has a significant relationship with Objector Watson and Mr. Keller. Mr.
Harrison is not only friends with Objector Watson and Mr. Keller (IPCB 4/6/05 Tr. at 114:2-9),
he lived on both oftheir respective properties. (IPCB 4/6/05 Tr. at 110:7-24; 111-112:1; 121:14-
24; 122:1-24; 123:1-2.) Mr. Harrison, like Mr. Keller, worked for United Disposal without
compensation. (IPCB
4/6/05
Tr. at 56:17-24; 57:1-11; 97:10-24; 98-104:1-19; 109:20-24; 113:8-
24; 114:1.) Mr. Harrison also worked in support of Objector Watson’s candidacy for County
Board member in November 2004. (IPCB 4/7/05 Tr. at 26:21-24; 27:1-10.) Mr. Harrison, Mr.
8
See, ~ (IPCB
4/6/05
Tr. at 44:1-22; 63:16-17; 65:7-11; 79:6-12; 225:13-20;
250:4-7);
(IPCB 4/7/05 Tr. at 48:4-13; 80:19-24;
81:1-3; 100:19-24; 120:5-l5;230:I3-24;231:l-ll.)
22
Keller and Objector Watson are in continuous communication with each other.9 (IPCB 4/6/05
Tr. at 102:6-8; 118:18-24; 119:1-8.)
Mr. Harrison, Mr. Keller and Objector Watson actively and jointly worked to oppose the
2003 Application, discussing their opposition with each other. (IPCB 4/6/05 Tr. at 109:20-22;
114:10-13.) Mr. Keller and Objector Watson discussed notice. (IPCB 4/6/OS Tr. at 109:6-14.)
Mr. Keller let Mr. Harrison use his telephone to contact County Board members, (Waskosky
3/30/05 Tr. at 23.)
As part oftheir campaign, a list ofCounty Board members was obtained. (IPCB 4/6/05
Tr. at 132:21-24; 133:1-21.) Mr. Harrison initiated contact with at least 18 ofthe members on
the list. Mr. Harrison also distributed the “No dump. No Chicago garbage” signs that were
located throughout the community prior to the March 17 Decision, and that were used by the
picketers outside ofthe County building on the day ofthe vote. Mr. Keller placed this sign in his
yard. (IPCB 4/6/05 Tr. at 144:17-24; 145:1-22; 179:6-24; 180:1-6.) All three ofthem appeared
at the County Board meeting on March 17, 2004. (IPCB 4/6/05 Tr. at 142:1-17; 144:3-5;
144:10-16.) They also appeared together at the County Board meeting the day on which the
Motion to Renew Consideration was voted on. (IPCB
4/6/05
Tr. at 149:9-23.)
After the March 17 Decision, Mr. Keller sent thank you notes to County Board members
who voted to deny the 2003 Application. Objector Watson and Mr. Harrison encouraged
neighbors to also send thank you notes to County Board members who voted to deny the 2003
Application. (IPCB 4/6/05 Tr. at 147:20-24.)
~See, infra, Note 12,
23
Mr. Harrison’s interests were aligned with Objector Watson and Mr. Keller to defeat the
2003 Application. As evidenced below, Mr. Harrison worked aggressively to further those
interests and persuade County Board members to oppose the Expansion.
2.
Harrison’s
~&I’arIe
Contacts with County Board Members
Mr. Harrison initiated contact with at least 18 County Board members to discuss and
advocate his opposition to the Expansion.’°His methods were deceitful and heavy-handed.
They included (a) physically appearing without notice at the County Board member’s place of
work, home or vehicle and demanding theirpersonal attention, (b) ignoring County Board
member concerns that they should not talk to him by lying about the State’s Attorney having
approved such communications, (c) persisting in his efforts to talk to and confront County Board
members despite being told that the discussion should end, and (d) making express and implied
threats directed to County Board members who did not vote against the Expansion. While these
contacts were not solicited by County Board members, they contained enough information and
arguments on the merits ofthe 2003 Application to have influenced orprejudiced the County
Board members on a pending adjudicative matter.
In his zeal to get votes, Mr. Harrison displayed no regard forpersonal safety or privacy.
For example, Mr. Harrison approached County Board member Jamie Romein in a United
Disposal vehicle driven by Objector Watson, coming up to him unannounced during his lunch
break at a construction site. Mr. Harrison began discussing the Expansion. On a separate
attempt, Mr. Romein was followed by Mr. Harrison in a vehicle driven by Objector Watson. At
a stoplight, Mr. Harrison came up to
~ Summary of
Ex Parte
Communications by Bruce Harrison with Kankakee County Boardmembers, Appendix A.
24
Mr. Romein’s vehicle and asked to get in. Under these unexpected and intimidating
circumstances, and fearing an accident, Mr. Romein let Mr. Harrison into his vehicle. Mr.
Harrison began discussing the Expansion and threatening that he had the power to run someone
against Romein in the election. (TPCB
4/6/05
Tr. at 241 :3-15; 242:3-16; 243:4-7; 245; 246; 247.)
In another instance, Mr. Harrison called County Board Lisa Latham Waskosky around
9:00 a.m. and awakened her. She works at night and sleeps during the day. (Waskosky 3/30/05
Tr. at 15:14-19; 19:11.) Knowing that Ms. Waskosky would be sleeping, Mr. Harrison appeared
at her home two days later, unannounced, and without identifying himself, told her husband that
he was there to talk to Ms. Waskosky “on official County business.” (Waskosky 3/30/05 Tr. at
20:1-19.) After being awakened by her husband and going to the door, Mr. Harrison then
announced himself and stated “here’s the documents I promised you.” (Waskosky 3/30/05 Tr. at
21:6-12.)
Mr. Harrison communicated with the following County Board members who voted to
approve the 2002 Application: Ruth Barber, Karen Hertzberger, Mike LaGesse, Ed Meents,
William Olthoff, Jamie Romein, Ralph Marcotte and Lisa Latham Waskosky. Mr. Harrison’s
principal contentions were that the County should not accept out-of-county waste, and that the
Expansion was unsafe. (IPCB 4/6/05 Tr. at 181:20-24; 183:3-8; 317:6-11.) (Bertrand 4/14/05 Tr.
at 15:4-24.) These arguments went to the very essence ofCriteria (i), (ii), (iii) and (vi): the
Expansion was not needed because the County should not be the “dumping ground” for Chicago
waste, the Expansion was not safe and would depress property values, and the additional truck
traffic from Chicago would create congestion and cause safety hazards.1’
~ These arguments were also the subject of
ax parte
communications between other Expansion opponents and various County
Board members. ~ Summary ofEx Parte Communications to County BoardMembers by Persons Other Than Bruce Harrison,
Appendix B.
25
These eight County Board members considered the 2002 Application and the 2003
Application to be substantially the same. (IPCB 4/6/OS Tr. at 308:11-13; 309:5-10), (IPCB
4/7/05 Tr. at 49:17-18; 50:4; 81:13-16), (Waskosky3/30/05 Tr. at 7:6-10; 8:1-11.) Without the
actions ofMr. Harrison, theyhad voted to approve the 2002 Application. After being contacted
by Mr. Harrison, they voted to deny the 2003 Application. They did so by rejecting the very
criteria that Mr. Harrison had argued against: Criteria (i), (ii), (iii) or (vi), or a combination
thereof. (IPCB 4/6/05 Tr. at 41:16-24; 42:1-5; 45:23-24; 46:1-24; 47:1-10; 225:21-24; 226:19-
24;227:1-24;309:11-19),(IPCB4/7/O5Tr.at48:17-23;51:1-11;8O:ll-14;83:6-23; 120:16-24;
122:11-13; 123:16-24; 124:1-4; 209:17-24; 212:2-14), (Waskosky 3/30/05 Tr. at 6:8-20; 8:16-24;
9:1-4.)
Mr. Harrison also contacted four County Board members who did not vote on the 2002
Application, namely, KellyMcLaren, Robert Scholl, Larry Gibbs and James Stauffenberg. He
expressed his opposition to the Expansion and presented signed petitions of constituents who
were allegedly opposed to the 2003 Application. Each ofthese County Board members voted to
deny the 2003 Application, basing their denial on a rejection of Criteria (i), (iii) or (vi), or a
combination thereof. (IPCB 4/6/OS Tr. at 208:7-12; 210:15-24; 211:1-11; 273:13-24; 274:1-9),
(IPCB 4/7/06 Tr. at 62:5-17; 64:8-24; 65:1-2; 230:8-12; 233:22-24; 234:1)
Mr. Harrison’s advocacy was not limited to persuading County Board members to vote
against the Expansion based on his beliefs and arguments. In the more egregious contacts, Mr.
Harrison made direct threats to several County Board members that if theydid not vote against
the 2003 Application, they would face severe opposition to re-election.
12
12
The evidence of these communications and threats were provided by the County Boardmembers themselves. Mr. Harrison
“disappeared” during the pendency of this appeal, and evaded service ofdeposition and hearingsubpoenas so that he could avoid
having to testi~’about his improper actions. During his disappearance, however, he monitored this appeal and continued his
communications with Objector Watson, Mr. Keller and Mr. Runyon. (IPCB
4/6/05
Tr. at 119:6-24; 120-121:1-9; 124:11-24;
26
C.
ExParte Letters and Telephone Calls to County Board Members
In addition to the efforts ofMr. Harrison, other opponents ofthe Expansion inundated
County Board members with letters and telephone calls opposing the 2003 Application. As with
in-person communications, the letters urged the County Board members to vote against the
Expansion because there was no need to accept out-of-county waste, it was unsafe, it would
negatively affect property values, and the increase in truck traffic would be dangerous.’3 Almost
all ofthe letters contained explicit threats against the re-election ofany County Board member
that voted in favor ofthe 2003 Application. These
ex parte
communications were directly
related to Criteria (i), (iii) and (vi), the three rejected criteria on which the County Board based
its 2003 Decision.
D.
County Board Members Refused to Explain the Reasons for Their Denial
County Board members who approved the 2002 Application denied, without explanation,
the 2003 Application. There was no competent orrelevant evidence presented in this record that
supports their denial. As a result, WMII sought to discover the reasons orbasis for the change.
The County resisted this request on the ground that it invaded the mental processes of the
decisionmaker. However, such inquiry is appropriate where, as here, there were no factual
findings explaining the decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 41 U.S. 402,
420, 92 S.Ct. 814 (1971).
125-131:1-19; 192:16-24; 193-194:1-9.) The detailed description of Mr. Harrison’s communications with County Board
members is set forth in the attached Summary ofEx
Parte
Communications by Bruce Harrison With Kankakee County Board
Members. ~
Appendix A.
13
Summary ofEx
Parte
Communications to County Board Members by Persons Other Than by Bruce Harrison attached as
Appendix B.
27
The IPCB Hearing Officer denied WMII’s Motion to Compel (Hearing Officer Order, slip
op. at 4-5 (April
5,
2005)), and precluded WMII from inquiring into the basis forthe denial at the
IPCB hearing, even through an offer ofproof.14 (IPCB 4/5/OS Tr. 19-20:1-23.) The Hearing
Officer’s rulings were erroneous. ~ City ofRockford v. Winnebago County, No. PCB 87-92,
slip op. at 9 (November 19, 1987) citing Citizens to Preserve Overton Park, Inc. v. Volpe, 41
U.S. 402,91 S.Ct. 814 (1971); 35111. Adm. Code §101.616 (a), (b). Theypreventeda
determination ofwhether the March 17 Decision was properly and validly made, and thus
whether the proceedings were fundamentally fair. Sokaogan Chippewa Community v. Babbitt,
961 F.Supp. 1276, 1279-81 (W.D. Wis. 1997). By virtue ofthe County’s objection to providing
the basis for the March 17 Decision, and in the absence of any competent evidence supporting
that Decision, one may only reasonably conclude that the County’s reversal ofthe 2003 Decision
was determined by the
exparte
advocacy ofMr. Harrison and other objectors. Indeed, the 2003
Decision was not supported by any credible evidence in the record.
III.
ARGUMENT
A.
THE COUNTY BOARD’S DENIAL OF THE 2003 APPLICATION IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
The County Board denied the 2003 Application by determining that compliance with
Criterion (i) (need), Criterion (iii) (incompatibility and effect on property value) and Criterion
(vi) (traffic) had not been shown. These findings were made 14 months after the County Board
determined that WMII had proved compliance with each ofthe statutory criteria for the same
facility at the same location. There was no evidence presented in the 2003 Application record
that would support a reversal of the County Board’s findings on Criteria (i), (iii) and (vi). The
14
WMII was allowed to put into the record the questions it sought to ask County Boardmembers. (IPCB 4/6/05 Tr. 65:18-20;
66:6-8; 71:4-24; 72-73:1-8.)
28
only facts that explain the County Board’s reversal relate to the improper advocacy and political
pressure directed by Mr. Harrison and other objectors to members ofthe County Board, which
actions did not occur in the 2002 Application. As such facts are not a proper basis for deciding a
local siting request, the County Board’s findings that Criteria (i), (iii) and (vi) were not met are
against the manifest weight ofthe evidence.
In reviewing a local siting decision, this Board determines whetherthat decision is
against the manifest weight ofthe evidence. Land and Lakes Co. v. Pollution Control Board,
319 Ill.App.3d 41, 48, 743 N.E.2d 188, 193 (3d Dist. 2000). A decision is against the manifest
weight ofthe evidence if an opposite conclusion is apparent or the decision maker’s findings
“appear to be unreasonable, arbitrary, or not based upon the evidence.” Webb v. Mount Sinai
Hospital, 347 Ill.App.3d 817, 807 N.E.2d 1026, 1034 (1st Dist. 2004) (citing Freese v. Buoy, 217
Ill.App.3d 234, 244, 576 N.E.2d 1176 (1991)). The findings ofthe County Board must rest upon
competent evidence and be supported by substantial proof. Gumma v. White, 345 Ill.App.3d
610, 803 N.E.2d 130, 135 (1st Dist. 2003). While it may not reweigh the evidence, this Board
must accept uncontradicted facts as true “notwithstanding the existence ofcontrary unsupported
allegations.” Webb, 347 Ill.App.3d at 826, 807 N.E.2d at 1034 (citing Flannery v. Lin, 176
Ill.App.3d
652,
658, 531 N.E.2d 403 (1988)). This Board’s sole function is to determine whether
the County Board’s decision is just and reasonable based on the evidence presented. Gumma,
345 Ill.App.3d at 615, 803 N.E.2d at 135.
Ifthere is competent evidence that fairly supports the County Board’s action, the decision
is not against the manifest weight ofthe evidence. Gumma, 345 Ill.App.3d at 615, 803 N.E.2d
at 135. However, the mere existence ofsome evidence that conflicts with applicant’s proofis not
sufficient to support the County Board’s denial. ~ A.R.F. Landfill v. Lake County, No. PCB
29
87-51, slip op. at 21-24 (October 1, 1987) (County Board’s denial ofCriterion (iii) was against
the manifest weight ofthe evidence despite testimony in the record asserting that proposed
expansion would negatively impact property value.) The evidence necessary to support a county
board decision must be probative, credible and relevant to the criteria at issue.
Where, as here, there is no competent orrelevant evidence that fairly supports the County
Board’s denial ofCriteria (i), (iii) and (vi), the County Board’s denial is against the manifest
weight ofthe evidence and must be reversed. $~Gumma, 345 Ill.App.3d at 614-615, 618-619,
803 N.B.2d at 134-35, 137-38 (evidence presented to support suspension ofplaintiff’s driver’s
license held insufficient, and reversal of administrator agency’s suspension order as against
manifest weight ofthe evidence affirmed).
Wivill presented prima facie proof for each ofthe statutory criterion, The RPC and the
County Board found the proof sufficient and that compliance with all ofthe criteriawas
established. (2003 Recommendation for Approval, p. 7; 2003 Decision, p. 7) WMII presented
the same prima facie proof in the 2003 Application. This proofwas neither rebutted nor
contradicted by any competent or substantial evidence. The RPC found the proofsufficient and
that compliance with the statutory criterion was established. However, the County Board
determined that Criteria (i), (iii) and (vi) were not met.
These findings denying Criteria (i), (iii) and (vi) are against the manifest weight ofthe
evidence. See Industrial Fuels & Resources/Illinois, Inc. v. Pollution Control Board,
227 I11.App.3d 533,
549,
592 N.B.2d 148, 157-159 (1st Dist. 1992) (siting denial reversed where
no evidence substantiating risk or contradicting applicant’s prima facie showing was presented).
The County Board’s decision ignored V~4II’sprima facie proof, was contrary to the findings of
the RPC, and was against the manifest weight ofthe evidence.
30
1,
Criterion (I) Was Established
Need is established where it is shown that a proposed facility is reasonably required by
the waste needs ofthe service area identifiedby the applicant, taking into account the area’s
waste production and waste disposal capability. File v. D&L Landfill, 219 Ill.App.3d 897, 597
N.E.2d 1228 (5th Dist. 1991). Objections to the size ofthe service area or opposition to the
receipt ofout-of-county waste are not proper reasons to deny the need criteria. See Metropolitan
Waste Systems v. Pollution Control Board, 201 Ill.App.3d 51,
558
N.E.2d 785, 787 (2d Dist.
1990) (applicant determines service area).
Ms. Smith was the only witness to testify regarding Criterion (i). No conflicting or
contrary data was presented. Her methodology was not challenged, much less impeached. Her
opinion was neither contradicted nor disproved. Thus, her conclusion that the service areahas a
disposal capacity shortfall ranging from 49 million to 132 milliontons was unrebutted.
The County Board’s denial ofCriterion (i) was based on no competent evidence. It
appears to have been based on the expressed opposition to the receipt ofout-of-county waste.
This is not a relevant or proper basis to determine that a facility is not needed. The County
Board’s decisionwas contrary to the unrebutted expert testimony establishing need. A result
opposite the County Board’s decision is plain and indisputable, and that decision should be
reversed. Rochelle Waste Disposal v. City Council ofthe City ofRochelle, No. PCB 03-218,
slip op. at 25 (April 15, 2004).
2.
Criterion (iii) Was Established
Criterion (iii) is met when the applicant demonstrates that it has done or will do what is
reasonably feasible to minimize incompatibility or effect on surrounding property values. File,
579
N.E.2d at 1236. Criterion (iii) does not require that the effects ofthe Expansion on the
31
character and value ofsurrounding property be eliminated, only that those effects be minimized.
Clean Quality Resources, Inc. v. Marion County Board, No. PCB 9 1-72, slip op. at 13 (August
26, 1991) (citing Clutts v. Beasley, 185 Ill.App.3d 543, 541 N.E.2d 844 (5th Dist. 1989)).
Criterion (iii) calls for a proposal to minimize effects
—
but it does not allow for rejection simply
because there might be some reduction in value. Watts Trucking Service, Inc. v. City of Rock
Island, No. PCB 83-167, slip op. at 7 (March 8, 1984). The proposal called forby Criterion (iii)
is satisfied by a plan to install screening berms, utilize setbacks and provide landscaping at the
site. A.R.F. Landfill, Inc. v. Lake County, No. PCB 87-51, slip op. at 24 (October 1, 1987);
Waste Management ofIllinois, Inc. v. McHenry County Board, No. PCB 86-109, slip op. at 23
(December 5, 1986).
Mr. Lannert conducted a comprehensive study ofthe surrounding area. Agricultural
fields and open space comprise 94 ofthat area. (11/18/02 Tr. Vol. 3 at 60.) Scattered
homesites are situated on properties comprising less than 4 ofthat area. (2002 App. at Crit. 3a,
p. 7.) A landfill mayreasonably be located in such an area. Mdllenry County Board, slip op. at
23.
In addition, WMH has proposed an exterior landscape screening plan. (2002 App. at Crit.
3a, p. 19-20, Sheets 11-12.) The plan proposes the (1) installation ofearth screening berms on
the Expansion’s western boundary to provide optimum benefit for the scattered residences along
U.S. Route 45/52; (2) preservation ofexisting trees and vegetation to enhance screening and the
visual transition ofthe landform into existing landscape; (3) installation ofplant material on
earth berms to enhance screening; and (4) landscaping ofthe Expansion entrance with
ornamental shrubs, native plant materials and other plantings to emulate natural ecosystems and
provide screening and buffer. (2002 App. at Crit. 3a, p. 19-20, Sheets 11-12.) A similar plan has
32
been determined to satisfy Criterion (iii), despite the introduction ofconflicting and contrary
testimony. McHenry County Board, slip op. at 22-23.
In her study ofthe Kankakee Landfill, Ms. McGarr evaluated 225 single family home
sales and 472 agricultural sales. (2003 App. at Crit. 3b, p. 4.) She determined that the Kankakee
Landfill has not had a negative impact on the value ofsurrounding property. (2003 App. at Crit.
3b, p. 8-11.) She also determined that the Kankakee Landfill has not deterred new residential
development in the immediate vicinity. (2003 App. at Crit. 3b, p. 8.) Moreover, her study ofthe
Settler’s Hill Landfill in Kane County found no detrimental influence on surroundingproperty
values. (2003 App. at Crit. 3b, p. 16-17.)
Ms. McGarr’s testimony was not rebutted. In addition, it established more than Criterion
(iii) requires. While Criterion (iii) requires only that effect on property value be minimized, Ms.
McGarr demonstrated that the Expansion will have no measurable negative effect. (2003 App. at
Crit. 3b, p. 8, 11, 16-17.) Where, as here, a showing ofno adverse effect has been made, the
criteria has been satisfied and any finding to the contrary is against the manifest weight ofthe
evidence. ~ Clean quality Resources, slip op. at 14 (where applicant’s expert testified that
property values would remain unchanged and facility would be landscaped, County Board’s
denial of Criterion (iii) was against manifest weight ofthe evidence, notwithstanding testimony
that surrounding property value would substantially decrease); A.R.F. Landfill, slip op. at 2 1-24
(where applicant’s expert stated that proposed expansion would have minimal (0-5) effect on
values of surrounding properties, and that landscaping plan would be implemented, county
board’s denial ofCriterion (iii) was against the manifest weight ofthe evidence, notwithstanding
testimony that facility would have negative impact on surrounding property value).
33
There is no evidence in this record to support the County Board’s denial ofCriterion (iii).
Specifically, there was no evidence presented that a landfill could not reasonably orproperly be
located in this area. A.R.F. Landfill, slip op. at 24. Tn fact, WMII presented a comprehensive
study ofthe area and potential impact on property values which established that there would be
no detrimental influence. A.R.F. Landfill, slip op. at 24. Moreover, WMII has proposed an
extensive landscaping plan to minimize any effect. McHenry County Board, slip op. at 23.
This record demonstrates that WMII has done or will do what is reasonably feasible to
minimize any incompatibility or effect on surrounding property value. ~
579 N.E.2d at 1236.
The County Board’s finding to the contrary is wholly unsupported in this record and against the
manifest weight of the evidence. A.R.F. Landfill, slip op at 24; McHenry County Board, slip op.
at 23.
3.
Criterion (vi) Was Established
Criteria (vi) is satisfied where traffic patterns to or from the Expansion have been
proposed so as to minimize impact on existing traffic flows. CDT Landfill Corporation v. City
ofJoliet, No. PCB 98-60, slip op. at 19 (March
5,
1998). Hence, if the traffic patterns or vehicle
routing proposed are shown to minimize impact on existing traffic flows when compared to other
available routes, the criterion is met.
The issue is not whether there will be negative impact, increased traffic volumes, traffic
noise, dust or driver negligence. Fairview Area Citizens
555
N.E.2d at 1187. The issue is not
whether there will be future traffic flows or development that might be affected by the
Expansion. Waste Hauling, Inc. v. Macon County Board, No. PCB
9
1-223, slip op. at 16-17
(May 7, 1992). The issue is not whether the evidence establishing Criterion (vi) was unopposed
oruncontradicted. ~ Waste Hauling, slip op. at 16-17 (County’s denial ofCriterion (vi)
34
reversed despite opposing testimony presented by township road district); A.R.F. Landfill, slip
op. at 21-24 (County’s denial ofCriterion (iii) reversed notwithstanding testimony that proposed
facility would negatively impact property value). The issue is whether the traffic patterns
proposed minimized impact on existing traffic movements.
The writtenreport submitted by Metro Transportation and the testimony ofMr. Corcoran
established that the traffic patterns designed for the Expansion will minimize impact on existing
traffic flows. (2002 App. at Crit. 6; 11/19/02 Tr. Vol. S at 16-148; 1/14/04 Tr. Vol. 7 at 9-89.)
Indeed, the RPC so found. (2004 Recommendation for Approval, p. 5-6)
The County Board’s denial ofCriterion (iii) was based on no relevant or sufficient
evidence. It appears to have been based on a concern about an increased volume oftraffic due to
out-of-countywaste. Such concerns are not proper considerations in deciding whether Criterion
(vi) was met. Metropolitan Waste Systems,
558
N.E.2d at 787; Fairview Area Citizens,
555
N.E.2d at 1187; Waste Hauling, slip op. at 16-17.
Similarly, the testimony ofMr. Coulter is also insufficient to support the County Board’s
denial. Mr. Coulter’s principal concerns did not properly address the standards relevant to an
evaluation ofCriterion (vi). He stated his concern about the impact of the Expansion on school
bus operations, pointing out that inattentive truck drivers might run their vehicles into the back
end ofa school bus. (1/16/04 Tr. Vol. 10 at 12-13, 30-31.) Concerns about driver negligence are
not relevant to Criterion (vi). Fairview Area Citizens,
555
N.E.2d at 1187.
Mr. Coulter also took issue with Criterion (vi) itself. (1/16/04 Tr. Vol. 10 at 22-23.) He
believed that WMII should have considered future traffic (5-20 years) in its analysis and found
WMII’s written traffic evaluation insufficient for failing to do so. (1/16/04 Tr. Vol. 10 at 22-23.)
35
However, the Criterion (vi) does not refer to future traffic; it requires that the minimization of
impact relate to existing, not future, traffic flows. 415 ILCS 5/39.2(a)(vi) (2002).
Mr. Coulter’s third concernwas with the proposed improvements to the access ofthe
Expansion. However, his testimony on the facility access was neither accurate nor reliable. In
providing his opinion on this issue, he considered a schematic design, not the actual intersection
design prepared and submitted by Metro Transportation to the Illinois Department of
Transportation. (1/16/04 Tr. Vol. 10 at 33-34.) The intersection design study included specific
construction details including median width, length ofdeceleration lanes and shoulder
dimensions. (1/16/04 Tr. Vol. 10 at 33-34.) Mr. Coulter stated that he was not aware that DOT
approved the design study, and added that it would not affect his concerns, because he often
disagrees with DOT. (1/16/04 Tr. Vol. 10 at 37.)
Mr. Coulter was also unaware ofthe actual sight distances from the Expansion access
drive. While stating that this distance should be at least 1100 feet, he was unable or unwilling to
confirm that these sight distances exceed 1100 feet in both directions on U.S. Route 45/52 at the
Expansion access. (1/16/04 Tr. Vol. 10 at
35-36.)
The County Board’s denial ofCriterion (vi) is not supported by any relevant or credible
evidence. A result opposite the County Board’s decision is plain, and compelled by the prima
facie showing of WMII. (2003 Recommendation forApproval, p. 9) The County Board’s denial
ofCriterion (vi) is against the manifest weight ofthe evidence, and should be reversed. See
CDT Landfill, slip op. at 19-20; Waste Hauling, slip op. at 16-17; Watts Trucking, slip op. at 7-
8; Waste Management of Illinois, Inc. v. Village ofBensenville, No. PCB 89-28, slip op. at 14
(August 10, 1989) (village denial ofCriterion (vi) reversed as against manifest weight ofthe
36
evidence where there was no evidence in record to contradict showing that impact on existing
traffic was negligible).
B.
THE COUNTY BOARD’S DENIAL WAS BASED ON
PA’~f?E
COMMUNICATIONS
AND
OTHER CONSIDERATIONS OUTSIDE THE
RECORD
The County Board denied the 2003 Application because the decision-making process was
tainted by the improper
exparte
communications between Mr. Harrison and County Board
members. Mr. Harrison, together with other Expansion opponents, initiated
exparte
communications in which they urged County Board members to deny the 2003 Application
because (a) the County did not need a landfill for Chicago waste, (b) the Expansion would
contaminate the enviromnent and depress property values, and (c) the additional truck traffic
bringing Chicago waste would create congestion and increase the risk ofaccidents. These
communications, which were not made during the 2002 Application, resulted in the denial of
Criteria (i), (iii) and (vi) ofthe 2003 Application.
Reversal ofa local siting decision is required where fundamental unfairness has tainted
the outcome. E&E Hauling, Inc. v. Pollution Control Board, 116 Ill.App.3d 586,
598,
606, 451
N.E.2d
555,
566, 571 (2d Dist. 1983), gfi’~4107 Ill. 2d 33, 41 N.E.2d 664 (1985). Fundamental
unfairness occurs if a disinterested observer might conclude that the local decisionmaker had in
some measure made a decision based on matters outside the record (s,~Concerned Adjoining
Owners v. Pollution Control Board, et a!., 288 Ill.App.3d
565,
573, 680 N.B.2d 810, 816 (3d
Dist. 1997)), or where ex parte contacts have influenced a decision. Fairview Area Citizens Task
Force v. Illinois Pollution Control Board, 198 Ill.App.3d 541,
555
N.E.2d 1178 (3d Dist. 1990).
The standard is an objective one, and asks whether a disinterested observer might
conclude that unfairness or the appearance ofimpropriety has tainted the decision-making
37
process. E&E Hauling, 116 I!l.App.3d at 598; Concerned Adjoining Owners, 288 Ill.App.3d at
573; see Rochelle Waste Disposal, slip op. at 25 (where comments do not create appearance of
impropriety, there was no prejudgment). The appearance ofimpropriety maybe inherently
unfair because it is “fraught with possibilities for actual prejudice.” Southwest Energy
Corporation v. Illinois Pollution Control Board, 275 Ill.App.3d 84,
96, 655
N.E.2d 304 (4th Dist.
1995). The integrity and fairness ofthe siting process requires that both the fact and the
appearance ofimproper influence be proscribed, as the actual or potential prejudice caused by
each taints the decisionmaking process. ~
The
exparte
advocacy actions ofMr. Harrison were intended to persuade, threaten and
cajole County Board members to vote against the 2003 Application. They were improper
attempts to secure the vote of a decisionmaker on a pending adjudicative matter by wielding
threat and bombast in face-to-face unannounced meetings. The advocacy included lies,
misrepresentation, misinformation and threats. The advocacy occurred outside the hearing
process. The sole purpose ofthe advocacy was to obtain a “no” vote by any available means.
And it worked.
Bight County Board members who voted to approve the 2002 Application voted to deny
the same application filed one year later. The site location request was for the same facility at
the same location. The information submitted to establish the nine criteria was the same; the
evidence presented in support of the nine criteria was the same. The only significant difference
between the two applications was the aggressive and threatening
exparte
advocacy ofMr.
Harrison.
This advocacy was also directed to four County Board members who did not vote on the
2002 Application. These communications appear to have been particularly effective. County
38
Board members Gibbs, McLaren, Scholl and Stauffenberg voted against the 2003 Application by
rejecting the criteria argued by Mr. Harrison: Criteria (i), (ii), (iii) and (vi).
The prejudice to WMII from this
exparte
advocacy was actual and undeniable. The vote
on Criterion (i) changed from 22-0 in favor to 16-12 against; the vote on Criterion (iii) changed
from 21-0 in favor to 18-10 against; and the vote on Criterion (vi) changed from 19-0 in favor to
16-12 against. (IPCB WMII Ex. Nos. 7 and 8.)
By any objective standard, the actions ofMr. Harrison were improper and prejudicial. At
a minimum, they created an appearance ofimpropriety which subverted the siting process. But
in addition, his actions had a direct, though perhaps unacknowledged, effect on the 2003
Decision. County Board members who had no competent evidence in the record on which to
reverse their approval ofthe 2002 Application did so anyway. The only reason that appears in
this record is the
exparte
advocacy ofMr. Harrison.
These communications, and the
exparte
contacts initiated by other objectors, both
created the appearance ofimpropriety, and caused actual prejudice. As such, they tainted the
siting process, and made the proceedings fundamentally unfair. Southwest Energy, 275
Il1.App.3d at 96; Rochelle Waste Disposal, slip op. at 25; Concerned Citizens ofWilliamson
County v. Bill Kibler Development Corp., No. PCB 94-262, slip op. at 14 (January 19, 1995);
City ofRockford v. Winnebago County Board, No. PCB 87-92, slip op. at 29-31 (November 19,
1987).
39
IV.
CONCLUSION
The County Board decision reversing its prior determination that Criteria (i), (iii) and (vi)
were met is not supported by any relevant orreliable evidence in the record. The County Board’s
reversal was the result ofimproper
ex parte
advocacy, not evidence. Accordingly, the County
Board’s denial ofCriteria (i), (iii) and (vi) was against the manifest weight ofthe evidence, and
should be reversed. In the alternative, this Board should reverse the County Board decision
because the proceedings were fundamentally unfair, and remand this matter to the County Board
forproper consideration and decision.
Respectfully Submitted,
Donald J. Moran
Lauren Blair
Pedersen & Houpt, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
OF ILLiNOIS, NC.
One
40
APPENDIXA
SUMMARY OF
EXPARTE
COMMUNICATIONS BY BRUCE HARRISON WITH
KANKAKEE
COUNTY
BOARD MEMBERS
A.
County Board Members Who Changed Their Decision from Approval ofthe 2002
Application to Disapproval of the 2003 Application
Ruth Barber
Ms. Ruth Barber was elected to the County Board in November 2002. (IPCB 4/7/05 Tr.
at 207:9-13.) Ms. Barber voted to approve the 2002 Application. (IPCB 4/7/05 Tr. at 209:17-
24.)
Mr. Harrison made an unsolicited appearance at Ms. Barber’s office to discuss the
Expansion. (IPCB 4/7/05 Tr. at 218:6-7, 19-24; 219:1-14.) He claimed to have formerly worked
at the same place as Ms. Barber. (4/7/05 Tr. at 220:16-19.) According to Ms. Barber, she
listened to him ramble on about the Expansion for about 10 minutes. (IPCB 4/7/05 Tr. at 219-
221:1-4; 222:14-23.) Although Ms. Barber tried to get him to leave, Mr. Harrison said “that he
wasn’t going back to work until this was resolved,” referring to his opposition to the Expansion.
(IPCB 4/7/05 Tr. at 221:16-18.) Ms. Barber thought that statement was “pretty powerful.”
(IPCB 4/7/OS Tr. at 221:24.)
Ms. Barber voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application. (IPCB 4/7/05
Tr. at 212:2-14.)
Karen Hertzberger
Ms. Hertzberger was elected to the County Board in November 2002, attended the 2002
public hearings, was sworn in as a County Board member in December 2002, and voted to
approve all nine of the statutory criteria for the 2002 Application. (IIPCB 4/6/05 Tr. at 40:7-16;
41:14-24; 42:1-5.)
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Mr. Harrison contacted Ms. Hertzberger for the first time prior to the March 17 Decision.
(IPCB 4/6/OS Tr. at 48:14-24.) He appeared uninvited at her office and proceeded to talk about
the 2003 Application. (1PCB 4/6/05 Tr. at 49:1-11;
50:6-22.)
He told her that he had spoken to
other County Board members. (IPCB 4/6/05 Tr. at 52:14-20.) Although Ms. Hertzberger told
him several times that she could not talk with him, she listened to enough ofwhat he said to
conclude that he was opposed to the Expansion and wanted her to vote “no.” (IPCB 4/6/05 Tr. at
51:4-22; 52:9-13.)
Mr. Harrison continued his attempts to communicate with Ms. Hertzberger by contacting
her three or fourmore times. He walked uninvited into her office up to two more times and
telephoned her at her office and at home. (IPCB 4/6/05 Tr. at 53:4-24; 54:1-4.) Ms. Hertzberger
said that Mr. Harrison’s appearance and re-appearance was highly unusual and made her
uncomfortable. (IPCB 4/6/05 Tr. at 75:15-17; 76:10-14.)
Subsequent to her encounters with Mr. Harrison, but prior to the March 17 Decision, Ms.
Hertzberger heard Mr. Harrison publicly threaten to oppose the re-election ofCounty Board
Chairman Karl Kruse. (IPCB 4/6/05 Tr. at 56:5-13.)
Ms. Hertzberger voted to deny Criteria (i), (ii), (iii), (v), and (vi) ofthe 2003 Application.
(IPCB 4/6/05 Tr. at 46:5-24; 47:1-10.)
Michael LaGesse
Mr. LaGesse has served as a County Board member since 1990 and voted to approve the
2002 Application. (IPCB 4/7/05 Tr. at 79:3-7; 80:13-14.)
Prior to March 17, 2004, Mr. LaGesse received a telephone call at work from Mr.
Harrison. (IPCB 4/7/05 Tr. at 83:24; 84:1-11.) During that call, Mr. Harrison falsely
represented that State’s Attorney Edward Smith told him that County Board members were
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authorized to discuss his opposition to the Expansion. (IPCB 4/7/OS Tr. at 84:1-24; 85:1; 89:11
-
24; 90:1-3.) At that time, Mr. LaGesse understood from the conversation that Mr. Harrison
opposed the Expansion. (IPCB 4/7/OS Tr. at 85:9-18.) Although Mr. Harrison’s representations
were false, Mr. LaGesse believed them at the time. (IPCB 4/7/05 Tr. at 85:19-24; 86:1.) It was
not until Mr. LaGesse spoke with County Board member Lisa Latham Waskosky that he learned
that Mr. Harrison was lying. (IPCB 4/7/05 Tr. at 87:9-24; 88:1-13.) Ms. Waskoskytold Mr.
LaGesse that he should not meet with Mr. Harrison to discuss the Expansion. (IPCB 4/7/OS Tr.
at 87:9-24; 88:1-13.) Mr. LaGesse telephoned State’s Attorney Mr. Smith at home and
confirmed that Mr. Harrison had lied about speaking with Mr. Smith and obtaining the latter’s
agreement that it was permissible for County Board members to speak with Expansion
opponents. (IPCB 4/7/OS Tr. at 89:11-24; 90:1-3.)
Ms. Waskosky gave Mr. LaGesse a telephone number where Mr. Harrison could be
reached so that he could cancel the meeting. (IPCB 4/7/05 Tr. at 108:4-21.) The telephone
number was the numberthat Ms. Waskoskyread from her caller ID, indicating it to be Mr.
Keller’s home telephone number. (IPCB 4/7/OS Tr. at 108:4-21.) Mr. LaGesse called the
number, and in fact, Mr. Harrison was there. Mr. LaGesse canceled the meeting. (IPCB 4/7/05
Tr. at 90:4-11; 108:10-24;
109:1-5.)
Despite being told that Mr. LaGesse knew he had been lied
to, Mr. Harrison persisted in attempting to convince him that it was okay to meet to discuss the
Expansion. (IPCB 4/7/05 Tr. at 90:24; 91:1-3.)
Mr. Harrison eventuallywent uninvited to Mr. LaGesse’s office. (IPCB 4/7/05 Tr. at
91:14-23.) He stated that he was in Bradley circulating a petition and handed Mr. LaGesse the
petition. (IPCB 4/7/05 Tr. at 92:9-20.) Mr. LaGesse was upset by Mr. Harrison’s presence, but
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looked at the petition and saw that it had signatures opposed to the Expansion. (IPCB 4/7/05 Tr.
at 92:1-20.)
Mr. LaGesse voted to deny Criteria (iii) and (vi) ofthe 2003 Application. (IPCB 4/7/05
Tr. at 83:6-23.)
Edwin Meents
Mr. Meents served as a County Board member for 12 years ending in November 2002.
(IPCB 4/6/05 Tr. at 301:14-21.) Mr. Meents voted to approve the 2002 Application. (IPCB
4/6/05 Tr. at 309:11-13.)
Mr. Meents received a telephone call at home from Mr. Harrison prior to the March 17
Decision, inviting him to meet for breakfast to discuss the Expansion. (IPCB 4/6/05 Tr. at
3 12:8-20.) Mr. Meents accepted Mr. Harrison’s invitation, but said that they were not going to
talk about the Expansion. (IPCB 4/6/05 Tr. at 313:2-7.) Mr. Meents asked County Board
member Duane Bertrand to go with him. (IPCB 4/6/05 Tr. at 314:14-15.) At the breakfast, Mr.
Harrison discussed the Expansion for 45 minutes. (IPCB 4/6/05 Tr. at 315:4-7.) He told them
that it was unsafe. (IPCB 4/6/05 Tr. at 317:6-11.) Despite being told by Mr. Meents and Mr.
Bertrandthat theywere not going to talk about the landfill, Mr. Harrisonpersisted in trying to
discuss the subject at least seven or eight times during the 45-minute meal, while Mr. Meents and
Mr. Bertrand listened. (IPCB 4/6/05 Tr. at 314:17-24;
315:6-7;
317:19-22.)
Mr. Meents voted to deny Criteria (i), (iii) and (v) ofthe 2003 Application. (IPCB 4/6/05
Tr. at 309:14-19.)
William Olthoff
Mr. Olthoff was elected as a County Board member in 2002 and voted to approve the
2002 Application. (Olthoff 4/14/05 Tr. at 3:18-24; IPCB Pet. Ex. No. 7.)
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Prior to the March 17 Decision, Mr. Harrison came to Mr. Olthoffs church, Calvary
Bible Church in Bradley, and requested permission to speak to the congregation about opposing
the Expansion. (Olthoff4/14/OS Tr. at 9:7-24; 10:1-16.) Mr. Harrison was not a member ofthe
Calvary Bible Church. (Olthoff 4/14/OS Tr. at 9:23-24.)
Mr. Olthoff met with Mr. Harrison at the church to discuss his request to speak to the
congregation. (4/14/05 Tr. at 12:1-24; 13:1-5.) Mr. Harrison attempted to persuade Mr. Olthoff
that the Expansion was a spiritual matter, and wanted to speak against the Expansion. (Olthoff
4/14/05 Tr. at 13:6-18; 15:13-15.) He told Mr. Olthoff that it was necessary to oppose the
Expansion because ofits potential threat or harm to the environment. (Olthoff 4/14/OS Tr. at
15:16-20.)
He also explained that one of the reasons he opposed the Expansion is because he did
not believe it should be taking out-of-county waste. (Olthoff 4/14/OS Tr. at 16:12-18; 17:2-5.)
Mr. Olthoff told Mr. Harrison that he did not feel that it was the appropriate venue, but Mr.
Harrison tried to persuade him by making the opposition to the Expansion a spiritual issue.
(Olthoff 4/14/05 Tr. at 14:12-18.) Mr. Harrison claimed that he had spoken at other churches
about his opposition to the Expansion. (Olthoff 4/14/05 Tr. at 20:7-14.) It was clear from the
conversation that Mr. Harrison was opposed to the Expansion, and that Mr. Olthoff listened to
Mr. Harrison speak about his reasons to oppose the Expansion.
Mr. Olthoff voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application. (Olthoff
4/14/05 Tr. at 7:7-15.)
Jamie Romein
Mr. Romein was elected to the County Board in November 2002 and voted to approve
the 2002 Application. (IPCB 4/6/05 Tr. at 224:11-18; 225:21-24; 226:1-6.)
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Mr. Harrison called Mr. Romein at home to talk to him about “no dump, no Chicago
garbage” prior to the March 17 Decision. Mr. Romein listened to enough ofMr. Harrison’s
comments to conclude that he was opposed to the Expansion. (IPCB 4/6/05 Tr. at 239:2-20;
240:20-23.)
Mr. Romein voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application. (IPCB
4/6/05 Tr. at 227:3-22.)
Mr. Harrison was persistent in his attempt to influence Mr. Romein. After the March 17
Decision, but before the April 13 vote on the Motion to Renew Consideration ofthe 2003
Application, Mr. Harrison and Objector Watson approached Mr. Romein in a United Disposal
truck while he was sitting in his truck at a construction site eating his lunch. (IIPCB
4/6/05
Tr. at
241:3-15; 242:3-16.) Mr. Harrisonbegan discussing the April 13 vote on the Motion to Renew
Consideration. (IPCB 4/6/05 Tr. at 243:4-7.) Mr. Romein responded that he was going to vote
the waythat he wanted to vote. (IPCB 4/6/05 Tr. at 243:8-12.)
On a separate occasion, also prior to the April 13 vote on the Motion to Renew
Consideration, Mr. Harrison again followed Mr. Romein in a private vehicle driven by Objector
Watson. While at a stoplight, Mr. Harrison got out of Objector Watson’s vehicle, walked up to
Mr. Romein’s vehicle and asked if he could get in. (IPCB 4/6/05 Tr. at 245:19-24; 245-246.)
Mr. Romein felt compelled to let Mr. Harrison into his vehicle, fearing an accident. (IPCB
4/6/05 Tr. at
245:19-24.)
Once inside, Mr. Harrison again began discussing the April 13 vote on
the Motion to Renew Consideration for the 2003 Application. (IPCB
4/6/05
Tr. at 246:4-7.) He
told Mr. Romein that
“he has the power”
to run someone against Romein in the election. (IPCB
4/6/05 Tr. at 246:7-9.) (emphasis added.)
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Lisa Latham Waskosky
Ms. Waskosky was elected to the County Board in November 2002, and voted to approve
the 2003 Application on January 31, 2003. (Waskosky 3/30/05 Tr. at 4:22-24; 5:1-3; 6:8-20.)
Ms. Waskosky’s first contact with Mr. Harrison was by telephone whenhe called her at
her home on February 14, 2004. (Waskosky 3/30/OS Tr. at
15:8-19.)
He told her that he wanted
to give her a legal opinion explaining that the bar against
exparte
communications was illegal,
and therefore, she could speak to him about the Expansion. (Waskosky 3/30/05 Tr. at 16-17.)
Even though Ms. Waskosky told him that she would not discuss the Expansion, he continued to
urge her to discuss the issue and to provide him with information on how the County Board was
going to vote on the 2003 Application. (Waskosky 3/30/05 Tr. at 17:22-24; 18:1-iS.)
On February 16, 2004, Mr. Harrison showed up unannounced and uninvited at Ms.
Waskosky’s home, claiming that he needed to speak with her about County business. (Waskosky
3/30/05 Tr. at 19:16-24; 20:1-24.) When she appeared at the door, he introduced himself, said
“here’s the documents I promised you,” and handed her a stack ofdocuments. (Waskosky
3/30/OS Tr. at 21:6-12.)
Mr. Harrison contacted Ms. Waskosky againjust before the March 17 Decision when he
telephoned her at home. (Waskosky 3/30/05 Tr. at 22:16-24.) Ms. Waskosky’s Caller
Identification System (“caller ID”) identified the call as Robert Keller’s name and telephone
number. (3/30/05 Tr. at 23:1-12.) Mr. Harrison tried to persuade her to meet with him
indicating to her that he had already met with several County Board members, including Ann
Bernard and Karen Hertzberger, and that he had a lunch appointment with Michael LaGesse.
(Waskosky 3/30/05 Tr. at 23:13-23; 24:4-6.)
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Ms. Waskosky voted to deny Criteria (iii) and (vi) ofthe 2003 Application. (Waskosky
3/30/05 Tr. at 8:12-24; 9:1-4.)
B.
County Board Members Who Did Not Vote on the 2002 Application and Voted to
Disapprove the 2003 Application
Larry Gibbs
Mr. Gibbs was elected to the County Board in November 2002. (IPCB 4/6/05 Tr. at
207:5-16.) He did not vote on the 2002 Application. (IPCB 4/6/05 Tr. at 208:10-12.)
Mr. Harrison telephoned Mr. Gibbs at home prior to the March 17 Decision to discuss his
opposition to the Expansion. (IPCB 4/6/05 Tr. at 212:4-23; 213:1-4.) Mr. Gibbs did not receive
telephone calls from Mr. Harrison or anyone else prior to the vote on the 2002 Application.
(IPCB
4/6/05
Tr. at 213:20-23.)
Mr. Gibbs voted to deny the 2003 Application by rejecting Criteria (i), (iii) and (v).
(4/6/OS Tr. at 211:1-11.)
Kelly McLaren
Mr. McLaren has been a County Board member since 2000. (IPCB 4/7/OS Tr. at 229:14-
16.) He did not attend the January 31, 2003 vote on the 2002 Application. (4/7/05 Tr. at 230:8-
12.)
Prior to the March 17 Decision, Mr. Harrison went unannounced to Mr. McLaren’s pub to
discuss his objections to the Expansion. (IPCB 4/7/OS Tr. at 235:7-24; 236:1-23.) Mr. Harrison
made a threatening comment to Mr. McLaren about his re-election status and attempted to bribe
him by stating that he (Harrison) could work it so that Mr. McLaren would not have an opponent
when running for re-election. (IPCB 4/7/05 Tr. at 237:16-24; 238:1-11.) Mr. McLaren was very
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upset and offended by Mr. Harrison’s remarks and told him to leave. (IPCB 4/7/05 Tr. at 239:1-
9;
246:9-16.)
Undeterred, Mr. Harrison returned to Mr. McLaren’s pub, this time bringing a petition
from Mr. McLaren’s constituents who opposed the Expansion. (PCB 4/7/OS Tr. at 239:13-24;
240:1-21.) Mr. McLaren looked at the petition and confirmed that the signatures appeared to be
from people in his district. (IPCB 4/7/05 Tr. at 250:19-21; 252:8-19.) Mr. McLaren felt that Mr.
Harrison brought the petition to show him how the people in his district felt about the Expansion.
(IPCB 4/7/OS Tr. at 240:24; 241:1-3.)
Mr. McLaren voted to deny Criterion (vi) ofthe 2003 Application. (IPCB 4/7/05 Tr. at
233:23-24; 234:1.)
Bob Scholl
Mr. Scholl was appointed to the County Board in October 2003. (IPCB 4/6/05 Tr. at
272:23-24; 273:1-S.)
Mr. Harrison is a former student ofMr. Scholl. (IPCB 4/6/05 Tr. at 275:13.) Mr.
Harrison came up to Mr. Scholl on the first day of the public hearing, before it began, and made
comments expressing his opposition to the Expansion. (IPCB 4/6/OS Tr. at 275:9-23; 276:1.)
Mr. Scholl listened as Mr. Harrison expressed his opposition to the Expansion, and also
explained that he was opposed to the Expansion because ofthe clutter at the current landfill site.
(IPCB 4/6/OS Tr. at 275:17-20; 276:7-10.)
Mr. Scholl voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application. (4/6/05 Tr. at
274:1-9.)
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Jim Stauffenberg
Mr. Stauffenberg was appointed to the County Board in 1992, and was elected to
continue to serve as a County Board member in November 2004. (IPCB 4/7/05 Tr. at 60:20-24;
61:1, 4-13.) He did not vote on the 2002 Application. (IPCB 4/7/OS Tr. at 62:8-13.)
As he did with so manyother County Board members, Mr. Harrison strategically
positioned himself to approach Mr. Stauffenberg. (IPCB 4/7/OS Tr. at 68:14-24; 69:1-13.) He
pulled into Mr. Stauffenberg’s parking lot as Mr. Stauffenberg was attempting to pull out. (IPCB
4/7/05 Tr. at 69:1-13; 70:7-13.) Mr. Stauffenberg agreed to meet Mr. Harrison for a lunch
appointment to discuss “County business.” (IPCB 4/7/OS Tr. at 69:1-13.) Mr. Stauffenberg
subsequently canceled the meeting after discussing it with County Board member Pam Lee, who
told Mr. Stauffenberg that he should not be talking with Mr. Harrison about the Expansion.
(IPCB 4/7/05 Tr. at 69:10-13.)
Mr. Stauffenberg voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application.
(4/7/05
Tr. at 64:15-23.)
C,
Other County Board Members Who Were Contacted by Bruce Harrison
Duane Bertrand
Mr. Bertrand has been a County Board member since 1993. (Bertrand 4/14/05 Tr. at
3:17-23.) He voted to approve the 2002 Application. (Bertrand 4/14/05 Tr. at 5:16-20.)
Mr. Harrison met with Mr. Bertrand before the March 17 Decision at a restaurant, along
with County Board member Ed Meents. (Bertrand 4/14/OS Tr. at 13:21-24; 14:1-24.) For
approximately 30 to 40 minutes, Mr. Bertrand, along with Mr. Meents, listened to Mr. Harrison
talk about the dangers oflandfills, reasons why the Expansion should not be approved and his
opposition to out-of-county garbage. (Bertrand 4/14/05 Tr. at 15-17.) Mr. Harrison described
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himself as an expert in landfills. (Bertrand 4/14/05 Tr. at 21:14-17.) He talked about the
geology and hydrology ofthe Expansion. (Bertrand 4/14/05 Tr. at 27:20-24; 28:1-5.) Mr.
Bertrand felt that Mr. Harrison was trying to persuade him and Mr. Meents to vote against the
2003 Application. (Bertrand 4/14/OS Tr. at 20:12-15.)
Mr. Bertrand’s next encounter with Mr. Harrison was on March 17, 2004, when he
noticed that Mr. Harrison was one ofthe picketers protesting in front ofthe County Building.
(Bertrand 4/14/OS Tr. at 18:7-18.) Mr. Harrison introduced Mr. Bertrand to the picketers as he
entered the County building and announced that he had voted to approve the 2002 Application.
(Bertrand 4/14/05 Tr. at 18:7-18.) Mr. Bertrand voted to approve the 2003 Application.
(Bertrand 4/14/05 Tr. at 6:1-3.)
Stanley James
Mr. James was elected to the County Board in 2000. (IPCB 4/7/05 Tr. at 147:21-24;
148:1-3.) He voted to disapprove the 2002 Application by rejecting Criterion (ii). (IPCB 4/7/05
Tr. at 149:13-19.)
Mr. James had a discussion with Mr. Harrison about the Expansion prior to the March 17
Decision. (IPCB 4/7/05 Tr. at 166:7-24; 167:1-21; 169:6-9.) Mr. Harrison went uninvited to Mr.
James’ office during the public hearings on the 2003 Application. (IPCB 4/7/05 Tr. at 166:7-24.)
Mr. Harrison said that he wanted to discuss the Expansion and wanted to know Mr. James’
position on the Expansion. (IIPCB 4/7/OS Tr. at 167:1-21.) Mr. James knew that Mr. Harrison
was opposed to the Expansion. (IPCB 4/7/OS Tr. at 167:6-21; 169:6-10.) While they were
talking, Mr. Harrison was memorializingparts oftheir conversation in a notebook. (IPCB 4/7/OS
Tr. at 169:11-24.) Mr. James observed Mr. Harrison writing down “Stan James is a good guy.”
(IPCB 4/7/OS Tr. at 169:13-19; 170:1-6.)
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Mr. James voted to deny the 2003 Application by rejecting Criteria (i), (ii), (iii), (v) and
(vi). (IPCB 4/7/05 Tr. at 153:15-19.)
George Washington Jr.
Mr. Washington has served as a County Board member for 18 years. (IPCB 4/7/05 Tr. at
297:24; 298:1-4.) He was Chairman ofthe RPC during the public hearings on both the 2002 and
2003 Applications. (IPCB 4/7/OS Tr. at 298:9-24.) Consistent with the findings ofthe RPC, Mr.
Washington voted to approve the 2002 and 2003 Applications. (IPCB 4/7/OS Tr. at 301:2-4;
304:3-6.)
Prior to the March 17 Decision, Mr. Harrison approached Mr. Washington and made it
clear that he and others would actively work to oppose the re-election ofany County Board
member who voted to approve the 2003 Application. (IPCB 4/7/OS Tr. at 306-307:6-24; 308:1-
S.)
The Reverend Elmer Wilson
Reverend Wilson has been a County Board member since
1995.
(IPCB 4/6/OS Tr. at
258:23-24; 259:1-3.) He voted to approve the 2002 Application. (IPCB 4/6/OS Tr. at 259:17-
22.)
Prior to the March 17 Decision, Mr. Harrison contacted Reverend Wilson at least three
times to discuss his opposition to the Expansion. The first time, Mr. Harrison arranged a
meeting with Reverend Wilson under the false pretenses ofneeding spiritual guidance. (IPCB
4/6/OS Tr. at 263:18-24; 264:1-14.) When they met, Mr. Harrison discussed the Expansion and
stated that he wanted to know Reverend Wilson’s position. (IPCB
4/6/05
Tr. at 264:12-16.) Mr.
Harrison continued to talk about the support he had obtained ofother people who opposed the
Expansion and getting Reverend Wilson’s support to vote against the 2003 Application. (IPCB
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4/6/05 Tr. at 264:16-24; 265:1-24.) Mr. Harrison bought breakfast forReverend Wilson. (IPCB
4/6/OS Tr. at 266:4-S.)
On another occasion, Mr. Harrison approached Reverend Wilson in the hallway after a
County Board meeting to discuss the Expansion, but Reverend Wilson said that he could not talk
about it. Nevertheless, Mr. Harrison followed Reverend Wilson around trying to communicate
with him about whyhe should vote against the 2003 Application. (JPCB 4/6/OS Tr. at 266:10-
22; 267:22-24; 268:1-4.)
Finally, on March 17, 2004, Mr. Harrisonmet Reverend Wilson before he went into the
meeting to vote on the 2003 Application. (IPCB 4/6/05 Tr. at 266:22-24; 267:1-8.) Mr. Harrison
approached Reverend Wilson with a group ofpeople and said “this is Reverend Wilson, he’s a
fair man.” (IPCB 4/6/05 Tr. at 267:1-2.) Mr. Harrison then handed him various materials about
a half inch thick, which included petitions allegedly containing signatures ofpeople who were
opposed to the 2003 Application. (IPCB 4/6/05 Tr. at 267:2-21.) Reverend Wilson voted to
approve the 2003 Application. (IPCB 4/6/05 Tr. at 260:8-10.)
Ann Bernard
Ms. Bernard has been a County Board member since 1996. (IPCB 4/6/05 Tr. at 327:6-
ii.) She voted to disapprove the 2002 Application by rejecting Criteria (iii) and (viii). (IPCB
4/6/05 Tr. at 327:12-24.)
Mr. Harrison contacted Ms. Bernard on at least one occasion prior to the March 17
Decision. (IPCB 4/6/OS Tr. at 335:7-13; 336:3-4.) During that communication, he discussed his
opposition to the Expansion. It was clear to Ms. Bernard that he was an opponent to the
Expansion. (IPCB 4/6/05 Tr. at 335:7-24; 336:3-4.)
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Mr. Harrison provided Ms. Bernard with a yard sign stating “no dump, no Chicago
garbage.” (4/06/OS Tr. at 347:12-19.) Ms. Bernard said Mr. Harrison was placing the signs.
(4/05/05 Tr. at 347:8-11.) She had the sign posted outside ofher office. (4/06/OS Tr. 347:17-19;
349:7-19.) Prior to Mr. Harrison providing the yard sign, Ms. Bernard had already authorized
the placement ofthe words “No outside garbage. No Chicago garbage,” on the elevated stand
sign (marquee sign) located at her office. (4/06/OS Tr. at 348:17-24; 349:1-6.)
She voted to disapprove the 2003 Application by rejecting Criteria (i), (ii), (iii), (v), (vi),
(viii) and (ix). (IPCB 4/6/OS Tr. at 328:16-22.)
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APPENDIX B
SUMMARY OF
EXPARTE
COMMUNICATIONS TO COUNTY BOARD MEMBERS
BY PERSONS OTHER THAN BRUCE HARRISON
A.
County
Board Members Who Changed Their Decision from Approval of the 2002
Application to Disapproval of the 2003 Application
Ruth Barber
Ms. Barber received no telephone calls or letters concerning the 2002 Application.
(IPCB 4/7/OS Tr. at 209:6-15.) She did receive a call and between 30 to 40 letters in connection
with the 2003 Application. (IPCB 4/7/05 Tr. at 212:23-24; 213:1-5; 214:16-23.) One letter was
from Paul Gray, one ofher former employees. (IPCB 4/7/OS Tr. at 223:17-21; 224:1-6.) Ms.
Barber read enough ofthe first few letters to know that they were opposed to the Expansion.
(IPCB 4/7/OS Tr. at 215:1-10.) Rather than submit those letters to the County Clerk, she threw
all ofthem away. (IPCB 4/7/OS Tr. at 215:5-10; 216:19-22.)
Reversing her vote to approve the 2002 Application, Ms. Barber voted to deny Criteria
(i), (iii) and (vi). (IPCB 4/7/OS Tr. at 2 12:2-14.)
Linda Faber
Ms. Faber held the position ofCounty Board member from 2000 to November 2004.
(IPCB 4/7/05 Tr. at 118:21-24; 119:1-8.) On January 31, 2003, Ms. Faber voted to approve the
2002 Application. (IPCB 4/7/05 Tr. at 120:24.)
Ms. Faber did not receive any telephone calls, letters or written material in connection
with the 2002 Application. (IPCB 4/7/05 Tr. at 120:5-15.) By contrast, prior to the March 17
Decision, she received approximately 15-20 letters from Expansion opponents. (IPCB 4/7/OS Tr.
at 128:14-24.) She read enough ofseveral ofthe letters to know that theywere opposed to the
Expansion, and then threw the letters away, “as instructed.” However, she was not instructed to
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throw the letters away, but to turn them into the County Clerk. (IPCB 4/7/05 Tr. at 129:2-4;
129:5-19; 140:18-24.) Even though she brought them to the County Building and was going to
file them with the County Clerk, she was instructed not to do so because similar letters were
already on file. Ms. Faber never confirmed that the unopened letters she received were in fact,
on file and in the public record. She carried them with her in a purse before she actually threw
them away at her office. (IPCB 4/7/05 Tr. at 142:20-24; 143:1-24; 144:1-13.)
Ms. Faber also received a telephone call at her home from Mr. Mark Benoit, a family
friend. (IPCB 4/7/OS Tr. at 126:16-24; 127:1-9.) During the telephone call, Mr. Benoit made
statements in opposition to the Expansion. (IPCB 4/7/OS Tr. at 127:13-24.) He told Ms. Faber
that he lived near the Expansion and that the Expansion would not only negatively affect his
quality oflife, but also his dreams. (IPCB 4/7/OS Tr. at 127:19-23.)
Ms. Faber saw the picketers protesting the 2003 Application carrying signs that said “No
dump.” (IPCB 4/7/OS Tr. at 122:19-24; 123:1-8.) There w~reno picketers protesting when she
voted on the 2002 Application. (IPCB 4/7/05 Tr. at 120:5-7.)
Reversing her vote to approve the 2002 Application, Ms. Faber voted to deny Criteria (i),
(iii), (v), (vi) and (viii) ofthe 2003 Application. (IPCB 4/7/OS Tr. at 123:13-24.)
Karen Hertzberger
Ms. Hertzberger testified that she received “many letters” concerning the 2003
Application, none of which were provided to the County Clerk to be made a part ofthe record.
She still has them at her home. (IPCB 4/6/05 Tr. at 58:1-7; 60:10-18.) She also received letters
after the March 17 Decision, but before the April 13 vote on the Motion to Renew Consideration
for the 2003 Application, at least one ofwhich thanked her for her vote opposing the Expansion.
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(IPCB 4/6/OS Tr. at 62:6-8, 20-24; 63:1-S.) These letters were also nevermade part ofthe public
record. (IPCB 4/6/05 Tr. at 62:17-18.)
Ms. Hertzberger also saw picketers outside ofthe building on the day ofthe Decision.
(IPCB 4/6/OS Tr. at 54:9-13; 55:9-18.) Mr. Harrison was probably among the picketers. (IPCB
4/6/OS Tr. at 54:9-13;
55:9-18.)
There were no picketers outside the County Board building on
January 31, 2003, relating to the 2002 Application. (IPCB 4/6/OS Tr. at 63:16-18.)
She also observed signs that read “No dump. No Chicago garbage” located all throughout
the community prior to the March17 Decision. (IPCB 4/6/OS Tr. at 54:23-24; 55:1-8.)
Reversing her vote to approve the 2002 Application, Ms. Hertzberger voted to deny
Criteria (i), (ii), (iii), (v) and (vi). (IPCB 4/6/05 Tr. at 46:2-24; 47:1-10.)
Frances Jackson
Ms. Jackson has been a County Board member since 1996. (IPCB 4/7/05 Tr. at 258:3-8.)
Ms. Jackson voted to approve the 2002 Application. (1PCB 4/7/05 Tr. at 260:19-24.)
Ms. Jackson received telephone calls opposed to the Expansion prior to the March 17
Decision. (IPCB 4/7/05 Tr. at 269:15-24.) The callers discussed the perceived dangers ofthe
Expansion to their health and property values. They also expressed their concerns about taking
out-of-town garbage. (IPCB 4/7/05 Tr. at 27 1-277.) Ms. Jackson told the callers that she agreed
with their concerns. (IPCB 4/7/OS Tr. at 271-277:16-24.) A few of the callers told Ms. Jackson
that theywould be watching the election to see how County Board members voted on the 2003
Application (IPCB 4/7/05 Tr. at 270:4-15.) Some ofthem also threatened Ms. Jackson that they
would take steps to get those County Board members who did not vote to oppose the Expansion
out ofoffice. (IPCB 4/7/05 Tr. at 270:22-24; 271:1-8.)
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Ms. Jackson received a lot ofletters at her home concerning the Expansion. (IPCB
4/7/05 Tr. at 278:15-24.) She read all of them and determined that each one expressed
opposition to the Expansion. (IPCB 4/7/05 Tr. at 279:1-13.) She did not give any ofthe letters
to the County Clerk, but kept them. (IPCB 4/7/OS Tr. at 277:14-20.)
Reversing her vote to approve the 2002 Application, Ms. Jackson voted to deny Criteria
(i), (ii), (iii), (v) and (vi) forthe 2003 Application. (IPCB Pet. Ex. No. 8.)
Michael LaGesse
Mr. LaGesse did not receive any telephone calls, letters or written materials in connection
with the 2002 Application. (IPCB 4/7/05 Tr. at 80:22-24; 81:1-3.) However, prior to the March
17 Decision, he received 10-20 letters opposing the Expansion. (IPCB 4/7/OS Tr. at 94:9-2 1.)
Among those letters was one from Karen Mallaney, who is an Expansion opponent and one of
his relatives. He read the entire letter from Ms. Mallaney. (IPCB 4/7/OS Tr. at
95:1-18.)
Mr.
LaGesse threw his letters away. (IPCB 4/7/05 Tr. at 94:22-23.)
Mr. LaGesse was approached by Mr. Doug Flageole. Mr. Flageole is a member of the
Knights ofColumbus, the organization that employs Mr. LaGesse. (IPCB 4/7/05 Tr. at 78:23-
24; 79:1-2; 95:19-24; 96:1-3.) Mr. LaGesse was well-aware ofMr. Flageole’s opposition to the
Expansion. (IPCB 4/7/05 Tr. at 96:1-8.) They had discussed Mr. Flageole’s opposition to the
Expansion near the end ofFebruary, at the Knights of Columbus. (IPCB 4/7/05 Tr. at 98:20-24;
99:1-17.) Mr. Flageole explained that he was opposed to the Expansion because the drinking
water from his well was contaminated, and as a result, his family drank bottled water. (IPCB
4/7/05
Tr. at 99:22-24; 100:1-18.) Mr. LaGesse visited the site ofthe Expansion before the
March 17 Decision because Mr. LaGesse wanted to see how close Mr. Flageole lives to it.
(IPCB 4/7/05 Tr. at 98:9-19.)
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Mr. LaGesse did not see any picketers on the day ofthe vote forthe 2002 Application.
(IPCB 4/7/OS Tr. at 80:19-21.) However, on March 17, 2004, Mr. LaGesse saw picketers at the
County building and heard them say “No dump.” (IPCB 4/7/OS Tr. at 82:3-15.) He also saw the
“No dump. No Chicago garbage” signs in the community. (IPCB 4/7/OS Tr. at 82:16-24.)
Reversing his vote to approve the 2002 Application, Mr. LaGesse voted to deny Criteria
(iii) and (vi) ofthe 2003 Application. (IPCB 4/7/OS Tr. at 83:6-23.)
Ralph Marcotte
Mr. Marcotte has been a County Board member for seven years. (IPCB 4/7/05 Tr. at
46:24; 47:1-S.) On January 31, 2003, Mr. Marcotte voted to approve the 2002 Application.
(IPCB 4/7/05 Tr. at 48:17-19.)
Prior to his vote on the 2002 Application, Mr. Marcotte did not receive any telephone
calls, letters orwritten materials concerning the Expansion. (IPCB 4/7/OS Tr. at 48:4-13.)
However, in connection with the 2003 Application, he received approximately
55
letters
opposing the Expansion. Mr. Marcotte read every one ofthe letters he received. (IPCB 4/7/OS
Tr. at 54:4-16, 22-24.) Mr. Marcotte had never before received so many letters on any County
Board issue. (IPCB 4/7/05 Tr. at 54:17-21.) That notwithstanding, Mr. Marcotte threw away the
letters rather than submitting the letters to the County Clerk. He stated that all 55 letters were in
the public record. (IPCB 4/7/OS Tr. at 54:14-16; 57:18.) However, Mr. Marcotte never made
any attempt to determine whetherthe same letters he received and threw away were made a part
ofthe record. (IPCB 4/7/05 Tr. at 57:19-24; 58:1-2.)
According to Mr. Marcotte, there were no protesters picketing in front ofthe County
Board building on the day the members voted on the 2002 Application. (IPCB 4/7/05 Tr. at
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48:14-16.) He did, however, see picketers on March 17, 2004, carrying signs that said “No
Chicago dump.” (IPCB 4/7/OS Tr. at 50:13-22.)
Reversing his vote to approve the 2002 Application, Mr. Marcotte voted to deny Criteria
(i), (iii) and (vi) ofthe 2003 Application. (IPCB 4/7/OS Tr. at 51:1-11.)
William Olthoff
Mr. Olthoff received between 20 to 30 letters at his home in connection with the 2003
Application. (O!thoff4/14/OS Tr. at 7:20-23; 8:1-24.) Mr. Olthoff reviewed the letters and
determined that some ofthe letters contained written materials that stated “Dump the dump or
we’ll dump you.” Mr. Olthoff explained that the statement meant that Expansion opponents
would engage in efforts to defeat the re-election ofCounty Board members who voted to
approve the 2003 Application, or even resort to physical violence. (Olthoff 4/14/OS Tr. at 27:2-
24; 28:13-24; 29:1-5.)
Reversing his vote to approve the 2002 Application, Mr. Olthoff voted to deny Criteria
(i), (iii) and (vi) ofthe 2003 Application. (Olthoff4/14/OS Tr. at 7:11-15.)
Jamie Romein
Prior to the vote on the 2002 Application, Mr. Romein did not receive any telephone
calls, letters or written materials from anyone. (IPCB 4/6/05 Tr. at 225:13-20.) No one
approached him at his place ofbusiness to talk about the 2002 Application. (IPCB 4/6/05 Tr. at
250:4-7.) In contrast, prior to the vote on the 2003 Application, he received between 20 and 25
letters that were mailed to his home. Mr. Romein read all ofthe letters, concluding that they
were in opposition to the Expansion. The letters threatened to oppose his re-election if he voted
in favor ofthe Expansion. (IPCB 4/6/05 Tr. at 229:20-24; 230:1-9; 256:1-24;
257:1-8.)
One of
the letters stated:
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As an elected official, if you do not speak out against this landfill
expansion then I will have no choice but to work as hard as I can to
make sure you do not get re-elected. The citizens ofthis county
will replace every one of you who vote for this landfill expansion.
We pray ofyou to listen and vote no dump expansion.
(IPCB 4/6/OS Tr. at 238:4-21.) Another letter read:
I was lied to and I feel betrayed by the people who we elected to
look out for ourhealth, safety and welfare ofour community and I
swear I will effortlesslytry to oust any Board member who thinks
they can shove this down our throats. Pay attention to the people
and hear what we are saying. No dump and no Chicago garbage.
(IPCB
4/6/05
Tr. at
256:1-10.)
Reversing his vote to approve the 2002 Application, Mr. Romein voted to deny Criteria
(i), (iii) and (vi). (IPCB 4/7/OS Tr. at 227:1-24.) He received more than ten thank you notes and
ten letters ofcongratulations after the March 17 Decision. (IPCB 4/6/OS Tr. at 231:14-17;
233:15-16; 249:8-15.)
Culver James Vickery
Mr. Vickery did not recall receiving any telephone calls, letters or writtenmaterial prior
to the vote on the 2002 Application. (IPCB 4/7/OS Tr. at 187:12-19.) But in connection with the
2003 Application, he received 25 letters against the Expansion. (IPCB 4/7/05 Tr. at 193:12-24;
194:1-8.) Mr. Vickery opened at least two ofthe letters and noted that the opening line indicated
that the sender was opposed to the Expansion. He kept a file at home for all ofthe letters he
received. (IPCB 4/7/OS Tr. at 193:21-24; 194:1-7.) He had never received that many letters on
any other County Board issue. (IPCB 4/7/OS Tr. at 194:22-24; 195:1-2.) He did not give these
letters to the County Clerk until after the March 17 Decision. (IPCB 4/7/05 Tr. at 194:9-21.)
He also received a telephone call from Mr. Harrison, but did not return the call. (IPCB
4/7/05 Tr. at 192:3-24.)
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In connection with the 2002 Application, Mr. Vickery does not recall seeing any
picketers. However, on the day ofthe vote on the 2003 Application, Mr. Vickeryrecalls that the
sidewalk was full ofpicketers with “No dump. No Chicago garbage” signs. (IPCB 4/7/05 Tr. at
190:4-16.) Reversing his vote to approve the 2002 Application, Mr. Vickery voted to deny
Criterion (i) ofthe 2003 Application. (IPCB 4/7/OS Tr. at 191:3-10.)
Lisa Latham Waskosky
Ms. Waskosky testified that she received over 30 letters at her home regarding the 2003
Application. (Waskosky 3/30/OS Tr. at
35:1-10.)
She read the first ones and determined that
they were from the same senders in Bradley and Bourbonnais. (Waskosky 3/30/OS Tr. at
35:1-
10.) Ms. Waskosky read enough of the letters to determine that they were related to the
Expansion. (Waskosky 3/30/OS Tr. at 35:11-20.) Ms. Waskosky put the letters in an envelope
and gave them to the County Clerk. (Waskosky 3/30/OS Tr. at 35:1-20.)
Reversing her vote to approve the 2002 Application, Ms. Waskosky voted to deny
Criteria (iii) and (vi) ofthe 2003 Application. (Waskosky 3/30/05 Tr. at 8:14-24; 9:1-4.)
B.
County Board Members Who Did Not Vote on the 2002 Application and Voted to
Disapprove the 2003 Application
Kelly McLaren
Mr. McLaren received between 15 and 25 letters concerning the Expansion prior to the
March 17 Decision on the 2003 Application. (IPCB 4/7/OS Tr. at 234:6-24.) He does not recall
having received any letters prior to the vote on the 2002 Application. (IPCB 4/7/OS Tr. at
230:13-24; 231:1-11.)
On his way to vote on March 17, 2004, Mr. McLaren observed picketers in the hallway
outside the County Board room carrying signs. (IPCB 4/7/OS Tr. at 232:22-24; 233:1-4.) He
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also testified that had seen protest signs throughout the area prior to the March 17 Decision,
which read “No dump. No Chicago garbage.” (IPCB 4/7/OS Tr. at 233:12-21.)
Mr. McLaren voted to deny Criteria (vi) ofthe 2003 Application. (IPCB Pet. Ex. No. 8.)
Bob Scholl
Mr. Scholl received “quite a few” letters prior to the March 17 Decision. (IPCB 4/6/OS
Tr. at 279:1-11, 19-23.) Mr. Scholl claims to have not read the letters, but “glanced” at all of
them long enough to determine that they were in opposition to the Expansion. (IPCB 4/6/05 Tr.
at 279:9-23.) He also received “quite a few” thank you notes after he voted to deny Criteria (i),
(iii) and (vi) forthe 2003 Application. (IPCB 4/6/OS Tr. at 273:13-24; 274:1-8; 280:3-13.)
Since January 2004, Mr. Scholl stated that signs were displayed throughout the
community and in and around the area ofthe existing landfill that read “No dump. No Chicago
garbage,” among other anti-Expansion slogans. (IPCB 4/6/OS Tr. at 276:14-24; 277:1, 10-14.)
He assumed that the signs meant “no out ofcounty garbage.” (IPCB 4/6/OS Tr. at 278:20-24.)
Mr. Scholl was contacted by Mr. Mark Benoit. Mr. Benoit stopped by Mr. Scholl’s house
to discuss the Expansion a few days before the March 17 Decision. (IPCB
4/6/05
Tr. at 282:10-
24; 283:1-3.) Mr. Scholl told him that they could not discuss that issue and Mr. Benoit left.
(IPCB 4/6/05 Tr. at 283:15-23.)
Mr. Scholl observed picketing outside of, and inside in the hallways of, the County
Building the day ofthe March 17 Decision. (IPCB 4/6/OS Tr. at 281:2-8.) The picketers were
carrying signs opposing the Expansion. Mr. Scholl talked to some ofthe picketers. (IPCB
4/6/05 Tr. at 281:5-24.) Mr. Harrison was among the picketers that Mr. Schohl waved to. (IPCB
4/6/05 Tr. at 281:23-24; 282:1.)
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Sometime between the March 17 Decision and the April 13 vote on the Motion to Renew
Consideration, Mr. Benoit paid another visit to Mr. Scholl and brought him various literature
pertaining to landfills and problems with capping landfills. (1PCB 4/6/05 Tr. at 285:23-24;
286:1-2; 287:21-24; 288:1-4.) The materials pointed out flaws in the concepts of landfill design.
(IPCB 4/6/OS Tr. at 288:12-16.) Mr. Scholl knew that the materials discussed flaws in landfill
design, because he looked over the materials. During the second visit by Mr. Benoit, they sat
around and had a general discussion about the materials. (IPCB 4/6/05 Tr. at 288:7-9; 293:11-
21.) These materials were not submitted to the County Clerk or otherwise communicated to
anyone at the County or made part ofthe record. (IPCB 4/6/05 Tr. at 290:4-9; 294:19-24.)
Mr. Scholl voted to deny Criteria (i), (ii) and (iii). (IPCB Pet. Ex. No. 8.)
Jim Stauffenberg
While Mr. Stauffenberg did not received any telephone calls, letters or written materials
in connection with the 2002 Application, he did receive approximately eight letters relating to
the 2003 Application. (IPCB 4/7/05 Tr. at 62:18-24; 63:1; 66:21-24; 67:1-3.) He threw away
the letters. (IPCB 4/7/05 Tr. at 67:11-13; 68:1-10.) Mr. Stauffenberg assumed the letters were in
opposition to the Expansion, because each had a return address from the area around the
Kankakee Landfill. (JPCB 4/7/05 Tr. at 67:14-19.)
Mr. Stauffenberg voted to deny Criteria (i), (iii) and (vi). (IPCB Pet. Ex. No. 8.)
Larry Gibbs
Mr. Gibbs received close to SO letters sent to his home opposing the Expansion prior to
the March 17 Decision. He read one letter enough to know that it was in regards to the
Expansion. (IPCB 4/6/OS Tr. at 213:24; 2 14:1-24.) He received no letters prior to the vote on
the 2002 Application. (IPCB 4/6/OS Tr. at 215:1-11.)
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Mr. Gibbs also had discussions with at least three residents who were opposed to the
Expansion because they did not want waste from Chicago. (IPCB 4/6/OS Tr. at 215:16-20;
216:16-24; 217:1-2.)
Mr. Gibbs voted to deny Criteria (i), (iii) and (v). (IPCB 4/6/05 Tr. at 211:1-11.)
C.
Other County Board Members Who Had
Ex Parte
Communications
Duane Bertrand
Mr. Bertrand received written materials that stated “Dump the dump or we’ll dump you.”
(Bertrand 4/14/05 Tr. at 10:24; 11:1-8.) He understood that to mean that opponents ofthe
Expansion would work to defeat the re-election ofCounty Board members who voted to approve
the 2003 Application. (Bertrand 4/14/OS Tr. 11:20-24; 12:1-4.)
Mr. Bertrand had a couple ofmeetings with Otto Township SupervisorRonald
Thompson. (Bertrand 4/14/OS Tr. at 19:7-13; 20:7-15.) During those meetings, Supervisor
Thompson told Mr. Bertrand that he was opposed to the Expansion and actuallytried to get Mr.
Bertrand to change his vote. (Bertrand 4/14/05 Tr. at 19:2-13; 20:7-15.)
Mr. Bertrand also had a confrontational discussion with Mr. Doug Flageole, another
Expansion opponent. After Mr. Bertrandrefused to tell Mr. Flageole how he was going to vote
on the 2003 Application, Mr. Flageole threatened to run against and beat him in the next
election. (Bertrand 4/14/OS Tr. at 6:16-24; 7:1-6, 10-12.)
Stanley James
Mr. James did not recall receiving any telephone calls, letters or writtenmaterials in
connection with the 2002 Application. (IPCB 4/7/OS Tr. at 149:4-12.) He did, however, receive
about a half dozen telephone calls prior to the vote on the 2003 Application, the majority of
which opposed the Expansion. (IPCB 4/7/OS Tr. at 153:20-24; 154:1-3, 21-24; 155:1-3; 157: 12-
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14.) Mr. James told the callers that he heard them and that he would take what they said into
consideration. (IPCB 4/7/05 Tr. at 156:15-18; 158:14-17.)
In addition to the telephone calls, Mr. James received letters prior to the March 17
Decision. (IPCB 4/7/05 Tr. at 158:18-21.) He read all ofthe letters and all ofthem were
opposed to the Expansion. (IPCB 4/7/05 Tr. at 159:11-17.) After he read them, he threw them
away. (IPCB 4/7/05 Tr. at 160:7-8.)
Mr. James also had in-person conversations with various people concerning their
opposition to the Expansion prior to the March 17 Decision. (IPCB 4/7/05 Tr. at 161:6-24;
162:9-24; 163:1-18; 165:2-8.) These people included members ofhis constituency, as well as
Mr. Ron Thompson, the Supervisor ofOtto Township, and Objector Runyon. (IPCB 4/7/05 Tr.
at 161:6-24; 162:9-24; 163:1-18; 165:2-8; 171:17-24; 172:1-4,8-11.) Mr. James listenedto
Supervisor Thompson state that he was not in favor ofthe Expansion. (IPCB 4/7/OS Tr. at
161:20-23.) During his discussion with Objector Runyon, Mr. James listened to him express his
opinions about why he was opposed to the Expansion. (IPCB 4/7/05 Tr. at 172:8-24; 173:1.) Of
the people with whom Mr. James spoke in-person, some ofthem directly told Mr. James to vote
against the 2003 Application. (IPCB 4/7/05 Tr. at 182:11-24.)
Unlike for the 2002 Application, there were picketers protesting the 2003 Application.
(IIPCB 4/7/OS Tr. at 152:3-S.) Mr. James voted to deny Criteria (i), (ii), (iii), (v) and (vi).
Leonard “Shakey” Martin
Mr. Leonard Martin, also known as Shakey Martin, has been a County Board member for
32 years. (IPCB 4/7/05 Tr. at 8:3-7.)
Mr. Martin received and read quite a few letters prior to the March 17 Decision and
determined that they were in opposition to the Expansion. (IPCB 4/7/OS Tr. at 13:24; 14:1-14.)
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Mr. Martin did not file any ofthe letters with the County Clerk, and instead threw them away.
(IPCB 4/7/OS Tr. at 14:23-24; 15:1-3.) Of particular note was a letter that Mr. Martin received
from the Momence Transfer Station prior to the March 17 Decision that addressed the need for
the Expansion. (IPCB 4/7/OS Tr. at 15:10-14; 16:14-16.) That letter stated that Kankakee
County did not have to worry about a place fortheir waste because the Momence Transfer
Station could take care ofit. (IPCB 4/7/05 Tr. at 15:10-14.) Mr. Martin mayhave read this
letter at a County Board meeting, or may have discussed this information with other County
Board members. (IPCB 4/7/OS Tr. at 15:13-24; 16:1-16.)
Prior to the March 17 Decision, Mr. Martin received telephone calls at his home opposing
the Expansion. (IPCB 4/7/OS Tr. at 12:4-10, 19-22.) Some of the callers told Mr. Martin that
they supported his opposition to the 2002 Application. (IPCB 4/7/05 Tr. at 13:12-23.)
Mr. Martin saw the picketers carrying the “No Chicago garbage” signs outside ofthe
County Board building on March 17, 2004. (IPCB 4/7/OS Tr. at 17:5-21.) Mr. Martin saw
similar signs placed around various locations throughout the community prior to the March 17
Decision. (IPCB 4/7/OS Tr. at 17:22-24; 18:1-6.) Mr. Martin took those signs to mean that a
number ofpeople in town were opposed to the Expansion. (IPCB 4/7/05 Tr. at 17:13-17.)
Mr. Martin voted to deny Criteria (i), (iii) and (vi) ofthe 2003 Application. (IPCB 4/7/OS
Tr. at 12:2-3) (IPCB Pet. Ex. No. 8.)
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