1

GEORGE MUELLER, P.C.

Ottawa, IL 61350

(815) 433-4705 - Telephone

(815) 433-4913 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS,

INC., a Delaware Corporation,

Petitioner,

v.

COUNTY BOARD OF KANKAKEE,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

Docket No. PCB 04-186

(Pollution Control Facility Siting

Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

TO:

See attached Service List

PLEASE TAKE NOTICE THAT

on this 24

th

day of May, 2005, I filed,

electronically, with the Illinois Pollution Control Board, the attached document entitled

Amicus Curiae Brief of Merlin Karlock and Motion for Leave to File Amicus Curiae Brief

of Merlin Karlock Instanter, as well as a copy hereof, which is hereby served upon you.

Respectfully submitted,

Merlin Karlock

BY: ________________________________

GEORGE MUELLER, P.C.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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2

GEORGE MUELLER, P.C.

Ottawa, IL 61350

(815) 433-4705 - Telephone

(815) 433-4913 - Facsimile

SERVICE LIST

Illinois Pollution Control Board

Clerk’s Office

James R. Thompson Center

Suite #11-500

100 West Randolph Street

Chicago, Illinois 60601

Electronically Filed

Donald Moran

Pedersen & Houpt

161 North Clark Street, Suite #3100

Chicago, Illinois 60601-3242

(312) 261-1149 - Facsimile

Attorney for Waste Management of Illinois,

Inc. - Via United States Mail

Charles Helsten

Richard Porter

Hinshaw & Culbertson

100 Park Avenue

P. O. Box 1389

Rockford, Illinois 61105-1389

(815) 490-4901 - Facsimile

Attorney for County Board of Kankakee

Via United States Mail

Keith Runyon

1165 Plum Street

Bourbonnais, Illinois 60914

Amicus Curiae

Via United States Mail

Brenda Gorski

Kankakee County State’s Attorney’s Office

950 East Court Street

Kankakee, Illinois 60901

Via United States Mail

Christopher W. Bohlen

Barmann, Kramer & Bohlen, P.C.

200 East Court Street, Suite #502

P. O. Box 1787

Kankakee, Illinois 60901

Attorney for City of Kankakee

Via United States Mail

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Boulevard, Suite #1600

Chicago, Illinois 60604

(312) 540-7000

Attorney for Michael Watson

Via United States Mail

________________________________

GEORGE MUELLER, P. C.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS,

INC., a Delaware Corporation,

Petitioner,

v.

COUNTY BOARD OF KANKAKEE,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

Docket No. PCB 04-186

(Pollution Control Facility Siting

Appeal)

MOTION TO FILE

AMICUS CURIAE

BRIEF OF MERLIN KARLOCK INSTANTER

NOW COMES

Merlin Karlock, by his attorney George Mueller, P.C., and moves

for leave to file his

Amicus Curiae

Brief instanter and, in support thereof, states that:

1.

By order of July 22, 2004, this Court granted Merlin Karlock leave to file an

Amicus Curiae

Brief herein.

2.

The due date for the aforesaid Brief was May 20, 2005. This

Amicus

Curiae

Brief is filed two business days late, on Tuesday, May 24, 2005.

3.

The opening brief of Waste Management of Illinois, Inc., the petitioner in

this matter, was scheduled to be filed on May 13, 2005. Waste Management of Illinois,

Inc. did not serve a copy of its opening brief on Karlock and, as a result, the only access

that Karlock had to said brief was on the Pollution Control Board’s website. The brief

did not appear on the website until the week of May 16, 2005, thereby delaying

completion of the

Amicus Curiae

Brief.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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GEORGE MUELLER, P.C.

Ottawa, IL 61350

(815) 433-4705 - Telephone

(815) 433-4913 - Facsimile

4.

There have been a number of recent late-breaking developments which

are not even of record yet in this matter but which are clearly relevant to the case and to

the content of the

Amicus Curiae

Brief. As set forth with more particularity in the

Amicus Curiae

Brief itself, on May 2, 2005, counsel for Waste Management of Illinois,

Inc., sent a letter to counsel for Kankakee County, soliciting a settlement of the issues

before this Board, wherein Kankakee County would abandon the defense of its previous

denial of regional pollution control facility siting. Moreover, on May 19, 2005, Karlock’s

attorney received correspondence from counsel for Kankakee County, announcing a

special Kankakee County Board meeting to consider Waste Management’s settlement

proposal and summoning representatives of Waste Management of Illinois, Inc., as well

as representatives of Karlock and other would-be interveners to address the County

Board with their thoughts on May 25, 2005. As it is, the role of an

Amicus Curiae

is to

advise the Board regarding the applicable law and facts so that it might more readily do

justice, the foregoing and the implications to be drawn therefrom are incorporated in the

Amicus Curiae

Brief of Merlin Karlock.

5.

There will be no prejudice to any party from the granting of this motion and

this motion is not brought for the purpose of delay.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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GEORGE MUELLER, P.C.

Ottawa, IL 61350

(815) 433-4705 - Telephone

(815) 433-4913 - Facsimile

WHEREFORE,

Merlin Karlock prays that this Court grant leave for the filing of his

Amicus Curiae

Brief instanter.

Respectfully submitted,

Merlin Karlock

BY: ________________________________

GEORGE MUELLER, P.C.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS,

INC., a Delaware Corporation,

Petitioner,

v.

COUNTY BOARD OF KANKAKEE,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

Docket No. PCB 04-186

(Pollution Control Facility Siting

Appeal)

AMICUS CURIAE

BRIEF OF MERLIN KARLOCK

NOW COMES

Merlin Karlock, (hereinafter “Karlock”) by his attorney GEORGE

MUELLER, P.C., and pursuant to the Order of the Illinois Pollution Control Board

(hereinafter “the Board”) dated July 22, 2004, granting him leave to file an

Amicus

Curiae

Brief and without waiving, by doing so, his ongoing objection to the portion of the

July 22, 2004, Order denying his Petition to Intervene, states that:

I. INTRODUCTION

This is the third and, hopefully, last attempt by Waste Management of Illinois,

Inc., (hereinafter “WMII”) to expand its existing landfill in Kankakee County, Illinois.

WMII currently operates a one hundred seventy-nine (179) acre solid waste landfill in

unincorporated Kankakee County, near the southern boundary of the City of Kankakee.

The landfill predates Subtitle D regulations and portions of it are unlined. This landfill is

nearing capacity and WMII seeks to expand the same into a six hundred sixty-four (664)

acre regional facility.

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On March 29, 2002, WMII filed its first Application for Local Siting Approval with

the Kankakee County Board. The public hearing on said application commenced on

July 22, 2002, at which time WMII withdrew the application because of an

acknowledged failure to serve all adjoining property owners with the required statutory

pre-filing notices. Merlin Karlock, as well as Michael Watson and Keith Runyon,

participated actively in that proceeding.

On August 16, 2002, WMII refilled its application. After a lengthy and contentious

public hearing in which Karlock, Watson and Runyon, once again, actively participated

as objectors, the Kankakee County Board granted siting approval on January 31, 2003.

Karlock, Watson and Runyon as well as the City of Kankakee petitioned to the Pollution

Control Board for review alleging that the County Board lacked jurisdiction, the County

Board prejudged the application and was biased in WMII’s favor and that the decision of

the County Board on the substantive siting criteria was against the manifest weight of

the evidence with respect to criteria i, ii, iii, v, vi, and viii. (415 ILCS 5/39.2(a)).

On August 7, 2003, the Pollution Control Board reversed the siting approval by

the County Board, finding that Kankakee County lacked jurisdiction because, once

again, WMII failed to serve all adjoining property owners with the required pre-filing

notices. The August 7, 2003, decision did not address the fundamental fairness and

manifest weight of the evidence arguments raised by Petitioners in that case. (PCB 03-

125).

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On September 26, 2003, WMII, for the third time in eighteen months, filed an

application with the Kankakee County Board to expand its existing landfill. Once again,

Karlock, Watson, and Runyon, among others, participated actively as objectors in a

lengthy and contentious public hearing. On March 17, 2004, the County Board rejected

the application, finding that siting criteria i, iii, and vi had not been met by the applicant.

The County Board did find that criterion ii (public health, safety and welfare) had been

satisfied, subject to fifty-four (54) enumerated special conditions. WMII appeals from

that decision, alleging that the proceedings are unfair, that the County Board was

biased against WMII and that the County Board’s decision on criteria i, iii, and vi was

against the manifest weight of the evidence.

Karlock, Watson and Runyon separately petitioned to intervene in this case, and

in an Order dated July 22, 2004, this Board denied those petitions, but did grant leave to

the would-be interveners to file Amicus Briefs. That Order is on appeal in the Third

District Appellate Court in a case that is currently pending.

The foregoing are not the only landfill cases coming out of Kankakee County in

the last several years. During the same time frame enumerated herein, Town &

Country Utilities has twice sought and received from the City Council of the City of

Kankakee, siting approval for a solid waste landfill to be located within the city

boundaries, but only approximately two (2) miles from the WMII site. The Pollution

Control Board reversed the City Council’s first grant of siting approval, but affirmed the

second decision by the City Council in favor of Town & Country Utilities. In both of

those cases, Kankakee County and WMII appeared and participated at all stages,

including appeals, presenting a united front in opposition to Town & Country and the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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City of Kankakee. (PCB 03-031, PCB 04-033). This ongoing and unholy alliance

between WMII and Kankakee County in their opposition to Town & Country and the City

of Kankakee, an alliance that has continued even after the March 17, 2004, denial of the

WMII application by the Kankakee County Board, has caused great concern to the

would-be interveners and was raised by Karlock in his Petition to Intervene, wherein he

expressed fear that the County Board would not zealously defend its previous denial of

the WMII application.

As reflected in the written findings of the Kankakee County Board of March 17,

2004, as attached to WMII’s Petition for Review, the vote to deny the application was by

an 18 to 10 majority. WMII points out, in paragraph 6 of its Petition for Review without

explaining its significance, that on April 13, 2004, the County Board deadlocked thirteen

to thirteen (13-13) on WMII’s Motion to Renew Consideration of the application.

The foregoing facts are necessary to understand the unique perspective that

Karlock has on the true nature of these proceedings in general and on the lack of

persuasiveness of WMII’s current arguments in particular. The overwhelming evidence

suggests that the Kankakee County Board has, at all times, been aligned with WMII,

that this alliance is based on continuing improper ex parté contacts, and that the County

Board has had a continuing, unlawful predisposition in favor of WMII. In support,

Karlock incorporates by reference as if fully set forth herein all of the arguments made

and facts cited in his opening Brief in PCB 03-125.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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In this context, WMII’s current argument that the March 17, 2004, denial of siting

was fundamentally unfair to WMII is almost incomprehensible. When the totality of the

facts, including Kankakee County’s opposition to the Petitions to Intervene and even the

requested alternative relief of filing Amicus Briefs, because the interveners “will be

advocating a point of view and urging this Board to find in favor of the County Board and

against WMII” (Respondent’s Objection to Michael Watson’s Motion to Intervene…, July

7, 2004, Page 10), are considered, the March 17, 2004 denial is best understood as the

County Board having a temporary fit of conscience in which they were, for once, guided

by the evidence. While WMII does not hypothesize about the significance of the

subsequent tie vote on reconsideration, it is best understood, in the foregoing context,

as the start of the return to business as usual between the Kankakee County Board and

WMII.

Kankakee County, in its motion opposing Watson’s Petition to Intervene

describes the role of an

Amicus Curiae

stating that he “is an impartial individual who

suggests the interpretation and status of the law, gives information concerning it, and

whose function is to advise in order that justice may be done.” It is with that admonition

in mind that Karlock presents these arguments and facts, hoping that an awareness by

the Pollution Control Board of all of the facts and the complex interconnection between

WMII and Kankakee County will insure that justice will be done.

It is also for the same reason that this Board needs to be advised of recent

developments which are not yet part of the record in this matter. On May 2, 2005,

Dennis Wilt, general counsel for WMII, wrote a letter to Charles Helsten, who represents

Kankakee County in this matter, soliciting a so-called “agreement” by which the County

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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Board would abandon its defense of the siting denial and stipulate to the allegations in

WMII’s Petition for Review. (A copy of the letter is attached hereto as Exhibit “A”).

Whether or not by coincidence, WMII, on the very same day, filed in the Third District

Appellate Court, its Respondent’s Brief in the denial of intervention appeal, alleging that

there was absolutely no reason to believe that Kankakee County would not zealously

defend its denial of siting approval (a copy of a portion of WMII’s Brief in Third District

Appellate Case No. 3-04-0649 is attached hereto as Exhibit “B”).

WMII’s disingenuous letter and shameless attempt to subvert the review process

would have been of no consequence if the County of Kankakee had flatly and

immediately rejected WMII’s overture on the basis that it owed a duty to the general

public to defend its previous siting decision. Such would have been consistent with the

statement in its July 7, 2004, objection to Watson’s Motion to Intervene that “because it

is clear that the County Board will adequately represent itself and vigorously defend its

denial of site location approval, Mr. Watson’s intervention is neither necessary or

appropriate.” (Respondent’s Objection…, July 7, 2004, Page 9). Instead, however,

Kankakee County has scheduled a special County Board meeting on May 25, 2005, to

consider WMII’s proposal. The letter announcing that meeting and summoning WMII’s

attorney to present his case is signed by Charles Helsten, the same attorney who

signed the July 7, 2004, pleading to this Board in which the County of Kankakee

promised to represent the interests of the would-be interveners and the general public

and to vigorously defend its siting denial. (A copy of Helsten correspondence is

attached hereto as Exhibit “C”). It is well settled that one must be a party in a Pollution

Control Board proceeding in order to have standing to appeal to the Appellate Court

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from an adverse decision of the Pollution Control Board (

McHenry County Landfill, Inc.

v. IEPA

, 151 Ill.App.3rd 89, 506 N.E.2d 372 (2

nd

.Dist. 1987). The stark impact of that

decision is that, if the County Board now abandons its defense of the siting denial and

that denial is reversed based upon the County Board’s stipulation that it should be

reversed, the objectors who have participated actively at every stage of the

proceedings, including WMII’s two prior, unsuccessful attempts at siting, will not have

standing to further appeal. It appears, therefore, that WMII and the County Board may

be in the process of creating a method for granting site location approval while

precluding all appeals by objectors.

II. Fundamental Fairness

Having been prevented from participating in the extensive discovery conducted

by WMII in developing its fundamental fairness arguments, Karlock is unable to

comment, in detail, on the meaning and significance of the facts developed. However, it

is clear that no County Board member admitted that he or she was improperly

influenced and the evidence of “political pressure” as WMII repeatedly uses that term in

its Brief is circumstantial at best and non-existent, at worst.

Moreover, the

circumstantial case is undermined by WMII’s fundamental misconception regarding the

significance of Kankakee County’s 2003 siting approval on the previous application.

WMII’s entire argument can, in fact, by distilled down to a few sentences as

follows:

1.

The County Board’s approval of the prior siting application on January 31,

2003, was proper.

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2.

The Application denied on March 17, 2004, and the evidence in support of

that application, were identical to the 2003 application and evidence.

3.

Based solely upon the foregoing, the March 17, 2004, denial must be

either fundamentally unfair, against the manifest weight of the evidence, or

both.

WMII’s first premise, that the previous siting approval was proper, is

unwarranted. The arguments by Karlock and others, in PCB 03-125, that the January

31, 2003, siting approval was both fundamentally unfair and against the manifest weight

of the evidence were extensively developed but never ruled upon in that case because

the County Board’s lack of jurisdiction made further rulings unnecessary. In that

context, whether or not the 2003 approval by the County Board was “overwhelming” as

suggested by WMII or not is really irrelevant. Since, however, the fundamental fairness

and manifest weight of the evidence issues raised in PCB 03-125 were never decided,

this Board cannot know, at this time, whether the 2003 approval was proper.

Accordingly, the Board can impart no significance to the fact that a prior application by

WMII had been approved.

The fundamental fairness issues raised by WMII in this case must therefore

stand on their own feet and cannot be buttressed by the fact of the County Board’s prior

approval.

In support of its smoke and mirrors argument on fundamental fairness, WMII,

perhaps intentionally, does not fully set forth the prevailing standard of review for a

fundamental fairness determination. It has been the law, for more than twenty years,

that the conduct by a City or County, in its legislative capacity, does not overcome the

presumption that the City or County will act without bias in its adjudicatory capacity.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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E&E Hauling v. Pollution Control Board

, 115 Ill.App.3

rd

898, 415 N.E.2d 555 (2

nd

Dist.

1983). Accordingly, the Pollution Control Board has, on several recent occasions,

declined to overrule the longstanding line of cases requiring an actual showing of

prejudice to support the finding that ex parté contacts have caused proceedings to be

fundamentally unfair.

Rochelle Waste Disposal v. City of Rochelle

, PCB 03-218, (Slip

Opinion April 15, 2004),

Waste Management of Illinois, Inc. v. County Board of Kane

County

, PCB 03-104, (Slip Opinion June 19, 2003).

Additionally, the Board has continued to acknowledge that regional pollution

control facility siting proceedings are only quasi adjudicatory and in that regard, the

Pollution Control Board has continued to cite with approval, the language from

Southwest Energy Corporation v. Pollution Control Board

that “a local governing body

may find the applicant has met the statutory criteria and properly deny the application

based upon legislative-type considerations (275 Ill.App. 3

rd

84, 655 N.E.2d 304 (4

th

Dist.)). (See also

Rochelle Waste Disposal v. City of Rochelle, supra

and

Waste

Management v. Kane County Board, supra

). If anything, this standard suggests that a

County Board is free to deny any siting application without fear of reversal by the

Pollution Control Board. WMII’s argument then that, since the County Board had once

previously granted siting approval, the only conclusion now is that some skullduggery by

the absent Mr. Harrison or others must have rendered the subsequent denial

fundamentally unfair must fail. Interestingly, Bruce Harrison was never deposed and

never testified. However, the true standard of review enunciated above, renders WMII’s

rather novel use of the empty chair defense, a nullity.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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WMII’s second premise, that the application and evidence in the 2003 hearings

were the same as in the 2002 hearings is an outright fabrication. In its opening Brief,

WMII actually states with reference to the 2002 application and hearings compared to

the 2003 application and hearings, “the information submitted to establish the nine

criteria was the same; the evidence presented in support of the nine criteria was the

same.” (WMII opening Brief at Page 38). How does WMII reconcile that statement with

the thirteen volume transcript developed over seven days on the second set of

hearings? The undisputed facts are that at the second set of hearings, the witnesses

were different, the cross-examination of those witnesses that were the same was

different, the exhibits admitted into evidence were different. the public comments were

different and the totality of the evidence was different. This is particularly true with

regard to criteria i, iii, and vi, the criteria on which the County Board denied the

application. For a more detailed statement of facts related to these criteria, Karlock

defers to the Amicus Curiae Brief of Michael Watson and adopts as his own the

Statement of Facts found in said brief.

III. The Decision Was Not Against the Manifest Weight of the Evidence

WMII’s statement of the standard of review to determine whether a local siting

decision is against the manifest weight of the evidence seems strangely vague and

incomplete. WMII’s opening brief suggests that a decision is against the manifest

weight of the evidence if the decision maker’s findings “appear to be unreasonable,

arbitrary, or not based upon the evidence.” (WMII opening brief at Page 29). WMII

argues that “this Board’s sole function is to determine whether the County Board’s

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decision is just and reasonable based on the evidence presented.” (WMII opening brief

at Page 29).

It appears that WMII has unduly relaxed the standard of review for determination

of whether a decision is against the manifest weight of the evidence. For a more

accurate and comprehensive statement of the actual standard, one need only turn to

WMII’s brief in the previous siting appeal herein, when WMII was defending the

Kankakee County Board’s decision. (PCB 03-125). There WMII succinctly stated,

“A decision of a local siting body regarding compliance with the statutory

siting criteria will not be disturbed unless the decision is contrary to the

manifest weight of the evidence. Land and Lakes, 743 N.E.2d at 197. A

decision is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident and indisputable. Turlek v. Pollution Control

Board, 274 Ill.App.3

rd

244, 653 N.E.2d 1288 (1

st

Dist. 1995).

The province of the County Board is to weigh the evidence, resolve

conflicts in testimony and determine the credibility of the witnesses.

Environmentally Concerned Citizens Organization v. Landfill LLC, PCB

98-98, Slip Opinion at 3 (May 7, 1998). Merely because there may be

some evidence which, if accepted, would have supported a contrary

conclusion, does not mean that the Board may reweigh the evidence and

substitute its judgment for that of the County Board. Tate, 544 N.E.2d at

1197. This Board is not free to reverse merely because the County Board

credited WMII’s witnesses and did not credit Mr. Norris. Landfill 33, Ltd.

v. Effingham County Board, PCB 3-43 and 3-52 (Cons.) Slip Opinion at 3

(February 20, 2003).

If there is any evidence which supports the County Board decision and

this Board finds that the County Board could reasonably have reached its

conclusion, the decision must be affirmed. File v. D & L Landfill, PCB 9-

94, Slip Opinion at 3 (August 30, 1990). That a different decision might

also be reasonable is insufficient for reversal. The opposite conclusion

must be clear and indisputable. Willowbrook Motel v. Pollution Control

Board, 135 Ill.App. 3

rd

343, 481 N.E.2d 1032 (1

st

Dist. 1985).”

Additionally, the Pollution Control Board, in reweighing the factual findings of the

local decision maker, is not to reweigh the evidence or make new credibility

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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determinations.

Waste Management of Illinois, Inc. v. Pollution Control Board

, 160

Ill.App.3

rd

434, 513 N.E.2d 592 (2

nd

Dist. 1987). If there is any evidence to support the

local siting authority’s decision, that decision must stand.

In Re Fairview Area Citizens

Task Force v. Illinois Pollution Control Board

, 198 Ill.App. 3

rd

541, 555 N.E.2d 1178 (3

rd

Dist. 1990). The Court in

File

reduced the manifest weight standard to its simplest form

by holding that the determination of the substantive siting criteria “is purely a matter of

assessing the credibility of expert witnesses.” At 219 Ill.App. 3

rd

897.

With regard to criterion vi, (minimizing impact on traffic) there actually was

conflicting evidence in that objector Watson called a traffic engineer to testify in

opposition to WMII’s traffic engineer. The County Board’s decision to assign more

credibility to the testimony and conclusions of the objector’s witness, Mr. Coulter, cannot

be disturbed by this tribunal.

WMII does not directly argue but certainly suggests that the fact that the

Kankakee County Regional Planning Commission recommended siting approval should

be considered in determining whether the decision was fundamentally unfair and

whether it was against the manifest weight of the evidence. Such an inference is

inappropriate, since the Pollution Control Board has repeatedly held that a local

decision maker is free to reject the findings or recommendations of its consultants.

Sierra Club, et al. v. Will County Board, et al.

, PCB 99-136 (August 5, 1999), Slip

Opinion at Page 12.

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Lastly, WMII suggests that, with regard to criteria i (need) and iii (land use

compatibility and property values), the County Board’s decision is against the manifest

weight of the evidence because the testimony was unrebutted and the County Board

was not free to disregard the same. WMII suggests that the County Board must accept

as true uncontradicted facts not withstanding the existence of contrary unsupported

allegations. The authority sited by WMII for this statement is

Flannery v. Lin

, a medical

malpractice case in which one of the parties appealed from a contempt finding related to

a discovery violation. The specific issue dealt with motions supported by affidavits and

the exact language of the Court in that context is, “when the facts within an affidavit are

not contradicted with a counteraffidavit, they must be taken as true, not withstanding the

existence of contrary unsupported allegations.”

Flannery v. Lin

, 176 Ill.App. 3

rd

652,

531 N.E.2d 403 (2

nd

Dist. 1988). The other case sited by WMII in support of this

proposition,

Webb v. Mount Sinai Hospital

, 347 Ill.App. 3

rd

817, 807 N.E.2d 1026 (1

st

Dist. 2004) is also a medical malpractice case involving the use of affidavits to support

motions related to discovery.

Clearly, WMII’s statement of the law is wrong. The mere fact that an opposing

party does not call witnesses does not mean that the testimony of the presenting party

is uncontradicted. The whole purpose of cross-examination is for an opposing party to

probe testimony to see if it is consistent, if it is believable, and whether conclusions are

supported by underlying facts. The Pollution Control Board and Appellate Court have

previously affirmed a denial of siting based upon failure to prove criterion i, even when

there was no contradicting expert testimony, because the testimony of the applicant’s

expert did not take into consideration sufficient facts and circumstances.

Waste

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Management v. PCB

, 234 Ill.App. 3

rd

65, 600 N.E.2d 55 (1

st

Dist. 1992). Recently, the

Pollution Control Board found that a local decision that criterion iii had not been

established, even though no witnesses testified in opposition to the applicant’s

witnesses, was not against the manifest weight of the evidence. The Board found,

“because an opposite result is not clearly evident or indisputable from a review of the

evidence, the Board, thus concludes that the city’s decision on criterion iii is not against

the manifest weight of the evidence.”

Rochelle Waste Disposal v. City of Rochelle

,

PCB 03-218 (April 15, 2004, Slip Opinion at 44). In the instant case, a review of the

testimony of WMII’s real estate value expert, Ms. McGarr, reveals that a significant

amount of her cross-examination of dealt with inconsistencies in her Résumé and her

apparent misrepresentation of her credentials. In light of this it is not at all surprising or

unreasonable that the County Board chose to discredit and disbelieve her testimony.

The WMII opening brief continuously refers to the siting denial as a reversal of

the County Board’s prior approval. This misstatement deserves comment because it is

intended to convey the impression that the evidence at the second siting hearing was

the same and, therefore, some outside force must have intervened to cause the County

Board to reverse that which they had previously approved. In fact, the record is

uncontradicted that the second proceeding was a new, separate and different

proceeding, albeit on a substantially similar application. The common law record filed

by the Kankakee County Board of this new and separate, second proceeding consists

of over 4,000 pages. (Record on Appeal, June 30, 2004). The transcript of the public

hearing is in excess of 1,600 pages and the exhibits admitted into evidence by just

objectors Karlock, Watson and Runyon are in excess of 1,800 pages. Interestingly,

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005

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Webb v. Mount Sinai Hospital

sited by WMII for an opposite conclusion actually

qualifies that conclusion by noting that an affidavit may be contradicted by other

documentary evidence. (Webb at 347 Ill.App. 3

rd

826).

IV. Criterion Two (Whether the Facility is So-Designed, Located and Proposed to

be Operated that the Public’s Health, Safety and Welfare Will be Protected) was

Weight of the Evidence

Had Karlock been allowed to intervene, this argument could have been raised by

way of cross-petition for review. This Amicus Brief is not the place to argue why the

County Board’s decision on criterion ii was against the manifest weight of the evidence,

but Karlock merely wishes to make the point so as to preserve the issue and to avoid

future argument by others that the same may have been waived. Given the current

state of the law, if this board were to reverse the decision of the Kankakee County

Board, Karlock and other participants at the original siting hearing would have no

standing to appeal that reversal. What that means is that siting approval would

effectively have been granted without there ever being consideration at any appellate

level of whether the proposed facility actually was so-designed, located and proposed to

be operated that the public health, safety and welfare would be protected.

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V. Conclusion

For the foregoing reasons, your Amicus Curiae respectfully hopes that the facts

and law recited herein will assist the Pollution Control Board in doing justice.

Respectfully submitted,

Merlin Karlock

BY: ________________________________

GEORGE MUELLER, P.C.

GEORGE MUELLER, P.C.

Ottawa, Illinois 61350

(815) 433-4705 - Telephone

(815) 433-4913 - Facsimile

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2005