George Mueller

GEORGE MUELLER, P.C.

Attorney at Law

628 Columbus Street, Suite #204

Ottawa, Illinois 61350

(815) 431-1500-Telephone

(815) 431-1501 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERK'S OFFICE

PEORIA DISPOSAL COMPANY,

Petitioner,

V.

PEORIA COUNTY BOARD,

Respondent.

MOTION FOR SUMMARY JUDGMENT

and

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

(415 ILCS §5/39.2(e))

Brian J

. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C

.

Attorneys at Law

416 Main Street, Suite #1400

Peoria, IL 61602-1153

(309) 637-6000-Telephone

(309) 637-8514 -Facsimile

NOD

21

2006

Pollution

STATE OF

Control

ILLINOISBoard

(Pollution Control Facility Siting Appeal)

---

TABLE OF CONTENTS

MOTION FOR SUMMARY JUDGMENT (415 ILCS

§5/39 .2(e))

RECEIVED

CLERK'S OFFICE

NOV 2 U 2006

Pollution

STATE OF

Control

ILLINOISBoard

MEMORANDUM OF LAW

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

(415 ILCS

§5/39 .2(e))

Page Nos.

INTRODUCTION

1

OVERVIEW OF EXHIBITS

3

STANDARDS OF REVIEW AND LAW

5

STATEMENT OF FACTS

6

ARGUMENT

26

I .

THE COUNTY BOARD DID NOT VOTE

To

DENY THE APPLICATION, AND 26

THEREFORE, THE APPLICATION

Is DEEMED APPROVED .

II .

No

WRITTEN DECISION WAS EVER CREATED BY THE COUNTY BOARD, AND

31

THEREFORE, THE APPLICATION Is DEEMED APPROVED

.

III.

THE FILING OF THE TRANSCRIPT AND OTHER DOCUMENTS IN THE RECORD

39

WAS NOT TIMELY, AND THEREFORE, THE APPLICATION

Is DEEMED APPROVED

.

CONCLUSION

43

Tab

APPENDDX

Excerpts from the Peoria County Code of Ordinances

Appx. A

Excerpts from the Peoria County Board Rules of Order

Appx. B

EXHIBITS

Exhibit 1

: Petitioner's First Set of Requests to Admit, Pages 1-6, filed September Ex

. 1

25, 2006

---

ii

Exhibit 2 : Cover letter and check, Exhibit A to Petitioner's First Set of Requests

to Admit

Ex. 2

Exhibit 3 : Receipt, Exhibit B to Petitioner's First Set of Requests to Admit

Exhibit 4 : Respondent, Peoria County Board's Partial Response to First Set of

Ex. 3

Requests to Admit of Petitioner, Peoria Disposal Company (Requests I through

81), filed November 13, 2006 .

Ex. 4

Exhibit 5: Transcript of April 6, 2006 Meeting of the Peoria County Pollution

Control Siting Committee (C 13410-13458)

Ex. 5

Exhibit 6 : Petitioner's Second Set of Requests to Admit, filed October 16, 2006

(without Exhibit D thereto, which is Exhibit 14 to this Memorandum)

Ex

. 6

Exhibit 7 : Respondent Peoria County Board's Response to Second Set of

Requests to Admit of Petitioner, Peoria Disposal Company, filed November 13,

Ex. 7

2006

Exhibit 8 : Memorandum from State's Attorney's Office, dated April 26, 2006

Ex

. 8

(C13459-13460)

Exhibit 9 : Recommended Findings of Fact, filed April 27, 2006 (C13735-13748) Ex. 9

Exhibit 10: Resolution (proposed), filed April 27, 2006 (C13710)

Ex. 10

Exhibit 11 : Agenda for May 3, 2006 Meeting of the Peoria County Board

Ex. 11

(C13613)

Exhibit 12: Transcript of May 3, 2006 Meeting of the Peoria County Board

Ex. 12

(C13711-13730)

Exhibit 13: Transcript of the Discovery Deposition of Karen Raithel

Ex. 13

Exhibit 14: "Final Findings of Fact," Exhibit D to Petitioner's Second Set of

Requests to Admit

Ex. 14

Exhibit 15: Transcript of the Discovery Deposition of Russell Haupert

Ex. 15

Exhibit 16: Transcript of the Discovery Deposition of Megan Fulara

Ex. 16

Exhibit 17: Affidavit of Brian J . Meginnes, Esq . (original filed separately)

Ex. 17

Exhibit 18

: Peoria County Clerk's Notes from May 3, 2006 Meeting (C13731-34) Ex. 18

---

AFFIDAVIT OF SERVICE

AFFIDAVIT OF FILING

ill

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR&

C

C

~+= 6 if o-rn

CLERK'S OFFICE

PEORIA DISPOSAL COMPANY,

fv';,

2 0 2006

)

Pol uSTATE

Petitioner, Petitioner,

ion Control

nBo~d

)

PCB 06-184

v.

)

(Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

Respondent .

)

MOTION FOR SUMMARY JUDGMENT

(415 ILCS §5/39 .2(e))

NOW COMES Peoria Disposal Company

("PDC"), by its attorneys, Brian J . Meginnes

and George Mueller, and moves for Summary Judgment on its Petition for Review of the

purported decision of the Peoria County Board (the "County Board") denying siting approval for

expansion of PDC's hazardous waste landfill and, in support thereof, submits the accompanying

Memorandum of Law in Support of Motion for Summary Judgment, incorporated herein by this

reference, and further states as follows :

This matter concerns a Petition for Review brought pursuant to Section 40 .1 of

the Illinois Environmental Protection Act (the

"Act"), 415 ILCS §5/40 .1, of a vote of the County

Board on May 3, 2006, purportedly denying the application of PDC for local siting approval of

an expansion of its hazardous waste landfill located in Peoria County, Illinois (the

"Application")

. The Application was submitted to the County Board pursuant to §39

.2 of the

Act.

2.

Summary judgment is an appropriate remedy when there is no genuine issue of

fact in dispute and the only issues to be decided by the reviewing tribunal are issues of law

.

1

---

3.

Section 39 .2(e) of the Act requires, in pertinent part, that "decisions of the County

Board or governing body of the municipality are to be in writing, specifying the reasons for the

decision, such reasons to be in conformity with subsection a of this section . . . If there is no final

action by the County Board or governing body of the municipality within one hundred eighty

(180) days after the date on which it received the request for site approval, the applicant may

deem the request approved ." 415 ILCS §5/39 .2(e) .

4.

The Illinois Administrative Code requires, in pertinent part, "A Petition for

Review must be filed within thirty-five (35) days after the local siting authorities action to

approve or disapprove siting . Action means the local government's official written decision

granting or denying local siting approval . Pursuant to §39.2(e) of the Act, action includes failure

of the governing body to act within one hundred eighty (180) days after receiving a request for

siting approval

." 35 111

. Adm. Code §107 .204.

5 .

Peoria County has previously adopted a pollution control facility siting ordinance

codified in Chapter 7 .5 of the Peoria County Code . This ordinance specifies, among other

things, the filing fee for a siting application, the number of copies to be filed, the minimum

required contents of the siting application, hearing procedures and the elements of the decision

making process .

6.

On November 9, 2005, PDC delivered the Application to the County Clerk

. The

County Clerk received the Application and filing fee and, in return, gave PDC a receipt for the

Application and the required filing fee . §7.5-41

of the Peoria County Code states, in pertinent

part, that "the County Clerk shall not give a receipt or other indication of filing until such time as

it is determined that the Application complies with the requirements of this resolution

." Staff

members of Peoria County subsequently certified the Application as being administratively

2

---

complete and complying with all local filing requirements, and "deemed" the Application to

have been filed on November 14, 2005 . Under the law and regulations, however, PDC's

delivery of the Application on November 9, 2005, was the controlling event for triggering of the

180-day deadline under Section 39 .2(e) of the Act.

7.

On April 6, 2006, the Peoria County Pollution Control Facility Site Hearing

Committee (the "Committee"), being a committee of the whole of the County Board, met to

consider and recommend proposed Findings of Fact on the Application for final action at a later

meeting of the County Board . At that meeting, the Committee failed to take binding or clear

action on findings pertaining to criteria v, iii, ii or i under the Act (415 ILCS §39 .2(a)) . No

minutes of the April 6, 2006, meeting of the Committee have ever been approved or filed with

the County Clerk or with the Pollution Control Board.

8.

On April 27, 2006, Karen Raithel, the Peoria County Recycling and Resource

Conservation Director, caused to be filed in the County Clerk's office certain, "Recommended

Findings of Fact" which she had prepared and which she believed were representative of the

siting committee's actions on April 6, 2006, though the "Recommended Findings of Fact"

prepared by her did not, in fact, correspond exactly with the official actions, if any, taken by the

Committee at the April 6, 2006 meeting

.

9 .

On May 3, 2006, the County Board met for the purported purpose of making a

final decision on the Application of PDC . At that meeting, an oral motion to

approve the

Application with certain unspecified conditions failed by a vote of 6 in favor and 12 against

. No

vote was taken to deny the Application, or to approve the Application with different or no

conditions . Therefore, no final action was taken on the Application, as neither an affirmative

vote approving without conditions (or with different conditions) nor an affirmative vote denying

3

---

the Application was taken . The Application in this case is deemed approved pursuant to 415

ILCS §39 .2(e) .

10. On May 3, 2006, the County Board purportedly voted to adopt certain amended

findings of fact, though no written record exists of what these are, or might have been

. (It was

recently discovered that County Staff member Karen Rathiel may have prepared a written

summary of the Findings of Fact purportedly adopted by the County Board on May 3, 2006,

which summary remained in Ms. Raithel's desk until shortly before her deposition) . The

amended findings of fact adopted by the County Board on May 3, 2006, do not appear to

conform either to the actions of the Peoria County Pollution Control Facility Siting Committee

on April 6, 2006, or the Recommended Findings of Fact filed by County Staff on April 27, 2006

.

11 . Also, no written decision or other writing of any kind, specifying reasons for the

decision of the County Board, was created pertaining to the May 3, 2006 meeting . There are no

written resolutions reflecting any actions of the County Board on May 3, 2006

. No minutes of

the May 3, 2006, meeting of the County Board have ever been approved or filed with the County

Clerk or with the Pollution Control Board. No written record of any actions of the County Board

exists (and therefore, obviously, no written record was ever tendered to PDC or placed in the

Record maintained in the County Clerk's office)

. In its Record filed with the Pollution Control

Board, the County Board identifies page C13710-48

as the "record and transcript of Peoria

County Board's Decision and Findings ." In fact, the "record and transcript" consists of a copy of

a Resolution that was not considered by the County Board on May 3, 2006, the Court Reporter's

undated transcript of the May 3, 2006 meeting, a copy of the "Recommended Findings of Fact"

filed on April 27, 2006, and four pages with handwritten notes appearing to record the

attendance and votes (though not the substance of the motions) of the County Board on May 3,

4

---

2006. These documents do not satisfy the requirement of the law and regulations that the County

Board creates a written decision recording its actions on the Application and specifying its

reasons for same . For this additional reason, the County Board failed to take "final action" on

the Application within one hundred eighty (180) days after delivery of the Application, and the

Application in this case is deemed approved pursuant to 415 ILCS §39 .2(e) .

12. No copy of the May 3, 2006 transcript was ever tendered or delivered to PDC, nor

was the same ever placed into the public record available to the public in the County Clerk's

office

. A copy of same, without page numbers, was posted on the Peoria County website on

May 12, 2006 . As of June 7, 2006, no record of any kind whatsoever of the actions of the

County Board on May 3, 2006, was available for inspection or review by the public in the office

of the County Clerk . The one hundred eightieth (180 th)

day after November 9, 2005, the day the

Application was received by the Peoria County Clerk, is May 8, 2006. While the transcript of

the County Board meeting of May 3, 2006, is not a written decision under Section 39

.2(e) of the

Act or 35 Illinois Administrative Code 107

.204, regardless of same, the transcript of the May 3,

2006, County Board meeting did not appear in any form until May 12, 2006, when it was posted

on the County's website . The four pages of handwritten notes did not appear in any form where

PDC or the public could see them until after PDC filed for review herein . While "Final Findings

of Fact" were apparently prepared by Karen Raithel, the Peoria County Recycling and Resource

Conservation Director, these "Final Findings of Fact" were never filed in the County Clerk's

office, and were first disclosed in discovery during this appeal . No writing containing the

actions or purported decision of the County Board was ever tendered by the County Board to

PDC or any of its representatives

. For this additional reason, the County Board failed to take

5

---

"final action" on the Application within one hundred eighty (180) days after delivery of the

Application, and the Application in this case is deemed approved pursuant to 415 ILCS §39.2(e) .

WHEREFORE, PDC prays for Summary Judgment and a finding that its Application is

deemed approved by operation of law.

Respectfully submitted,

PEORIA DISPOSAL COMPANY

906-1486

George Mueller

GEORGE MUELLER, P.C.

Attorney at Law

628 Columbus Street, Suite #204

Ottawa, Illinois 61350

(815) 431-1500 -Telephone

(815) 431-1501

- Facsimile

BY:

GEORG

BRIAN

ES, Its

eys

Mr. Brian

J

. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

Attorneys at Law

416 Main Street, Suite #1400

Peoria, IL 61602-1153

(309) 637-6000-Telephone

(309) 637-8514- Facsimile

6

---

BEFORE THE ILLINOIS POLLUTION CONTROL Bt

K'S

I

OFFICE

VE

D

N-.-Y)

2 v' 2006

PEORIA DISPOSAL COMPANY,

)

Pollution

STATE

OFControl

ILLINOISBoard

Petitioner,

)

PCB 06-184

v.

)

(Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

Respondent.

)

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

(415 ILCS §5/39

.2(e))

NOW COMES

Petitioner, Peoria Disposal

Company,

(hereinafter "PDC" or

"Petitioner") by its attorneys, Brian J

. Meginnes and George Mueller, and as and for its

Memorandum of Law in support of its Motion for Summary Judgment pursuant to 415 ILCS

§5/39.2(e),

states as follows :

INTRODUCTION

The Illinois Environmental Protection Act (the "Act") provides, in pertinent part, that

"[i]f

there is no final action by the county board or governing body of the municipality within

180 days after the date on which it received the request for site approval, the applicant may deem

the request approved

." 415 ILCS §5/39.2(e)

. "Action" is defined in the relevant regulations as,

" . . .

the local government's official written decision granting or denying local siting approval

."

35 Ill

. Adm . Code §107 .204

. In this case, the County Board never voted to deny or approve

PDC's application for siting approval (the "Application"), or even to approve the Application

with different conditions

. Therefore, the Application is deemed approved

.

1

---

Additionally, Section 39

.2(e) of the Act requires that "decisions of the county board

. . . are

to be in writing, specifying the reasons for the decision

." 415 ILCS §5/39 .2(e) . The only vote

taken by the County Board,

i.e.,

the vote to approve the Application with certain (difficult to

identify) conditions, was never reduced to writing or memorialized in any writing

. Therefore,

even if a vote to deny the Application was not required, the County Board failed to ever create a

decision "in writing, specifying the reasons for the decision" as required by law and regulations,

and therefore, the Application is deemed approved

.

Finally, even if a vote to deny the Application was not required, and the transcript and

other documents in the Record did constitute a written decision under the law and regulations,

such documents were not filed within 180 days after the date on which the County Board

received the Application, and therefore, the Application is deemed approved

. Under any of these

bases, the Application is deemed approved as a matter of law pursuant to Section 39.2(e)

of the

Act. 415 ILCS §5/39.2(e)

.

2

---

OVERVIEW OF EXHIBITS

Exhibit 1 hereto is a true and accurate copy of pages 1 through 6 of Petitioner's First Set

of Requests to Admit, the entirety of which was filed with the Pollution Control Board on

September 25, 2006 . Exhibit 2 hereto is a true and accurate copy of Exhibit A to Petitioner's

First Set of Requests to Admit, namely, copies of a cover letter and check . Exhibit 3 hereto is a

true and accurate copy of Exhibit B to Petitioner's First Set of Requests to Admit, namely, a

copy of a receipt. Exhibit 4 hereto is a true and accurate copy of the County Board's Partial

Response to First Set of Requests to Admit of Petitioner, Peoria Disposal Company (Requests 1

through 81), which was filed with the Pollution Control Board on November 13, 2006

.

Exhibit 5 hereto is a true and accurate copy of the transcript of the April 6, 2006 meeting

of the Peoria County Pollution Control Site Hearing Committee

. Exhibit 6 hereto is a true and

accurate copy of Petitioner's Second Set of Requests to Admit, which was filed with the

Pollution Control Board on October 16, 2006 . Exhibit 7 hereto is a true and accurate copy of the

County Board's Response to Second Set of Requests to Admit of Petitioner, Peoria Disposal

Company, filed November 13, 2006 .

Exhibit 8 is a true and accurate copy of a Memorandum generated by the State's

Attorney's Office, dated April 26, 2006 . (C13459-60)

. Exhibit 9 is a true and accurate copy of

the "Recommended Findings of Fact", filed on April 27, 2006 . (C13735-48)

. Exhibit 10 is a

true and accurate copy of a Resolution, filed on April 27, 2006, which Resolution was never

acted upon by the County Board

. (C13710) . Exhibit 11 is a true and accurate copy of the

Agenda for the May 3, 2006 meeting of the Peoria County Board

. Exhibit 12 hereto is a true and

accurate copy of the transcript of the May 3, 2006 meeting of the County Board

.

3

---

Exhibit 13 hereto is a true and accurate copy of the transcript of the discovery deposition

of Karen Raithel, on September 28, 2006

. Exhibit

14 hereto is a true and accurate copy of

Exhibit D to Petitioner's Second Set of Requests to Admit, namely, a document titled "Final

Findings of Fact

." Exhibit 15 hereto is a true and accurate copy of the transcript of the discovery

deposition of Russell Haupert, on September 13, 2006

. Exhibit 16 hereto is a true and accurate

copy of the transcript of the discovery deposition of Megan Fulara, taken on August

18, 2006.

Exhibit 17

hereto is a true and accurate copy of the Affidavit of Brian J

. Meginnes (the original

of which will be or has been separately filed with the Pollution Control Board)

.

The documents contained in Exhibit 18

hereto are true and accurate copies of four

(4)

pages of notes possibly taken by the County Clerk at the May 3, 2006 County Board meeting

(C13731-34) .

Only Exhibits 9 and 10 were ever part of the "public record" maintained by the County

Clerk throughout the siting process, and therefore, only Exhibits 9 and 10 bear the file-stamp of

the County Clerk

. While Exhibit 12, the transcript of the May

3,

2006 County Board meeting,

was never placed in the official public record in the County Clerk's office, another version of

same (without page numbers, non-condensed) was posted on the County's website on May 12,

2006,

184

days after the Application was delivered to and accepted by the County Clerk

. The

remaining Exhibits were gathered through discovery in this appeal

.

4

---

STANDARDS OF REVIEW AND LAW

Pursuant to the Illinois Administrative Code, in hearings before the Pollution Control

Board, "[i]f the record, including pleadings, depositions and admissions on file, together with

any affidavits, shows that there is no genuine issue of material fact, and that the moving party is

entitled to judgment as a matter of law, the Board will enter summary judgment

." 35 111 . Adm .

Code §101 .516(b).

Summary judgment is proper where, when viewed in the light most

favorable to the nonmoving party, the pleadings, depositions,

admissions, and affidavits on file reveal that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002)

;

Hall v. Henn, 208 I11

.2d 325, 328, 280 III .Dec. 546, 802 N.E.2d

797 (2003)

;

Ragan v. Columbia Mutual Insurance Co ., 183 I11.2d

342, 349, 233 I1l .Dec. 643, 701 N.E.2d 493 (1998)

.

Home Ins . Co. v. Cincinnati Ins . Co., 213 I11.2d

307, 315, 821 N .E.2d 269, 275, 290 I11.Dec. 218,

224 (2004).

5

---

STATEMENT OF FACTS

A.

Submission of the Application

On November 9, 2005, PDC delivered the Application to the County Clerk . (Ex. 1, No.

73 ; Ex. 4, No. 73) . The Application was accompanied by a filing fee in the amount of fifty

thousand dollars ($50,000

.00) as required by the Peoria County Code . (Ex. 1, No. 80; Ex . 4, No.

80) . (Copies of the relevant portions of the Peoria County Code are attached hereto as Appendix

A)

. On November 9, 2005, the County Clerk received the Application and filing fee (Ex . 1, Nos.

74, 81 ; Ex. 4, Nos. 74, 81) and the Deputy County Clerk signed an acknowledgment of same

(Ex. 1, Nos

. 68-72; Ex. 4, Nos . 68-72; Ex. 2). Also on November 9, 2005, the Peoria County

Clerk gave PDC a receipt for the Application and the required filing fee

. (Ex . 1, Nos. 75-77; Ex.

4, Nos. 75-77; Ex. 3).

Staff of the County

Board subsequently certified the Application as being

administratively complete and complying with all local filing requirements and "deemed" the

Application to have been filed on November 14, 2005

. However, the County Board has not

disputed that the Application and filing fee were received on November 9, 2005 . (Ex . 1, Nos .

74, 81

; Ex

. 4, Nos. 74, 81).

B.

The April 6, 2006 Meeting

1 . The Purple, Pink and Yellow Sheets

On April 6, 2006, the Peoria County Pollution Control Facility Site Hearing Committee

(the "Committee"), being a committee of the whole of the County Board, met to consider and

recommend proposed Findings of Fact on the Application for final action at a later meeting of

the County Board. (Ex

. 5) . The Committee had, to assist it in its deliberations, various

alternative proposed Findings of Fact prepared by the County Staff. (Ex . 5, 5/17-6/2

; C13411-

6

---

12).1 These consisted of the "purple sheets," described as Findings of Fact consistent with

unconditional approval, the "yellow sheets," described as findings consistent with conditional

approval, and the "pink sheets," described as findings consistent with denial of the Application .

(Ex. 5, 5/2-16 ; C13411). Additionally, Board member Mayer had prepared an alternate set of

pink sheets with regard to siting criterion i (415 ILCS 5/39 .2(a)) . (Ex. 5, 127/17-128/15 ;

C13442)

.

None of the color-coded purple, pink and yellow sheets were tendered to PDC, made

available to the public, filed in the County Clerk's office or made a part of the Record filed by

the County Board herein with the Pollution Control Board

. (Ex. 6, Nos . 1987-2013 ; Ex. 7, Nos.

1987-2013). On November 6, 2006 (approximately three and one-half months after initially

filing the Record), the County Board moved to supplement the Record on this appeal with what

appear to be black-and-white copies of the color-coded purple, pink and yellow sheets (and,

possibly, Board member Mayer's alternate set of pink sheets) from the April 6, 2006 Committee

meeting

. PDC has responded to the County Board's Motion for Leave to Supplement Record on

Appeal, and incorporates its Response as if fully set forth herein .

2. Criteria

ix, viii, vii, vi and iv

The Committee voted unanimously to adopt findings of fact supporting approval of the

Application as to criterion ix . (Ex. 5, 14/18-17/5 ; C13414)

. The Committee voted unanimously

to adopt findings of fact supporting approval of the Application as to criterion viii

. (Ex. 5, 17/7-

19/1

; C13414-15). The Committee voted unanimously to adopt findings of fact supporting

approval of the Application with special conditions as to criterion vii

. (Ex. 5, 23/1-7, 25/7-

26/19; C13416-17)

. The Committee voted unanimously to adopt findings of fact supporting

Citations to transcripts will be made in this format throughout this Memorandum

: "Ex. #, [page]/[Iine]-

[page]/[line]", or alternatively, "Ex

. #, [page]/[line]-[line]".

7

---

approval of the Application with special conditions as to criterion vi . (Ex. 5, 27/6-13, 28/19-

30/6; C13417-18)

.

The Committee voted unanimously to adopt findings of fact supporting

approval of the Application as to criterion iv . (Ex. 5, 64/4-65/20 ; C13426) .

3. Criterion v

Regarding criterion v, Board member Riggenbach moved to amend one of the special

conditions, stating as follows

:

MR. RIGGENBACH : I would like -- tell me the correct way to do

this. I would like to amend one of the special conditions .

CHAIRMAN WILLIAMS : Which one?

MR. RIGGENBACH

: Number three .

And I would like to change the $1 .50 per ton surcharge to a $5

surcharge, and have the minimum into the fund be raised from

225,000 to 750,000 .

MR. ATKINS

: I think in order for your motion to be proper

according to our procedure, you are essentially moving to accept

the findings of fact on the approval with conditions and to amend

the facts contained within the proposed approval with special

conditions.

MR. RIGGENBACH: Correct

. Thank you

.

(Ex. 5, 30/14-31/5

; C13418) . Board member Mayer also proposed a change to the findings of

fact:

MR. MAYER: I had one suggestion for a change in the findings of

fact, which is just on that same page that you were on here with

Tim (Riggenbach], the last finding, due to the types of wastes, to

strike that and replace it with --

if you look on the pink sheet, the

third one, just the facility is located close to and could present a

danger for residents .

MS. KENNEDY : I don't follow you here

.

MR. MAYER: Okay. In the yellow sheets, special conditions, look

right above that . There is finding of facts established on that

.

8

---

MS. KENNEDY : Okay.

MR. MAYER

: The last one, due to the types of waste, there is little

risk, to strike that and to replace it with -- it's slightly different but

the same sentiment, different emphasis -- the third one on the pink

sheet, the facility is located close to residential houses and a fire,

spill or other operations accidents could present a danger for

residents.

And just in speaking in favor of that, I think with the emergency

conditions that we did with the mock disaster drill and all of that,

that that is consistent with all of that .

CHAIRMAN WILLIAMS

: Good point .

(Ex. 5, 31/7-32/6 ; C 13418)

. Chairman Williams then opined that "the motion is to pass criterion

5 as amended." (Ex. 5, 32/9-10; C13418)

. Board member Hidden "made the motion to accept

this as amended" (Ex . 5, 55/1-3 ; C13424), and Board member Riggenbach seconded same (Ex

.

5,55/4-6;C13424). The Committee then voted unanimously to adopt findings of fact supporting

approval of the Application with special conditions as to criterion v . (Ex. 5, 62/12-63/20

;

C13426).

4 . Criterion iii

Regarding criterion iii, Chairman Williams opened the matter for discussion, and the

following exchange occurred :

MR. WIDMER

: Make a motion .

CHAIRMAN WILLIAMS : Is there a second there with the special

conditions?

MR O'NEILL: Yes.

CHAIRMAN WILLIAMS : Second by Tom O'Neill

.

(Ex. 5, 66/5-9 ; C13427).

Board member Mayer suggested that he would like to include

additional information "for both Criterion 3 and 2" :

9

---

MR. MAYER: I apologize for not having the figure in front of me,

but Chris Lannert as part of his report had a chart and a map that

showed the population within a mile and five miles and that -- so I

can't say I would like to add those specific numbers, but that's

what I would like to do, is actually for both Criterion 3 and 2, I

think it's important that as a finding of fact we list the population

that the Applicant's expert testified is within a mile, within five

miles. I think those were the increments .

But I think that is very important because -- it doesn't have as

much weight because it was in public comment, but one of the

things that the Opponents did do was they had someone list the

population of the towns that were next to other facilities, which are

very different . And I think that it's important to get in the record,

since the Applicant presented it, what the population is right next

to this.

*r∎

MR. MAYER

: That's about the number I remembered. But I can't

remember exactly, so I just ask Staff to write it up from Lannert's

report so it's -- I don't think anyone contradicted the population

numbers.

(Ex. 5, 73/14-74/9, 74/13-17

; C13428-29). No vote was taken specifically as to the population

figures

. The County Clerk "read the special condition" (Ex . 5, 82/20; C13431) as follows

:

COUNTY CLERK THOMAS

: Criterion 3, with the condition .

Screening Berm . In order to address visual and noise concerns for

the residences to the east of the proposed facility, the development

of the eastern portion of the landfill shall be built in such a manner

that visual barrier berms shall be placed and vegetated to minimize

view of the landfill operations and to assist in minimizing possible

noise from reaching residences to the east

. The County Staff shall

be given the right to approve the berm and barrier design prior to

the design being submitted to IEPA for a permit .

Then we are also adding that all population figures within one mile

and five miles be included in this criterion, correct?

MR. MAYER: Yes . However the

-- I don't know if we found it in

there yet .

MR. BROWN: Not yet . We will get it.

MR. MAYER

: Yes, as presented in the testimony .

10

---

(Ex. 5, 82/22-83/18 ; C13431) .

Board member Salzer requested clarification as to whether the County Board "[was]

going to add, also, criteria that the residents of that area be part of the Perpetual Care Fund like

he suggested?" (Ex . 5, 83/20-22 ; C13431). Assistant State's Attorney William Atkins clarified

Board member Salzer's question

as follows:

MR. ATKINS : Actually, I think what you are getting at is to

include the Perpetual Care Fund as a second special condition.

It would be the exact same language that the Perpetual Care Fund

would -- the way we described it in the prior criteria . I don't

remember which one it was . But I think that was what Tim

[Riggenbach] was actually getting at

.

(Ex. 5, 84/1-8; C13431). The Chairman initiated conversation with the moving Board members,

as follows:

CHAIRMAN WILLIAMS : Do you agree with the Perpetual Fund?

MR. WIDMER: I agree.

MR. THOMAS : Yes .

CHAIRMAN WILLIAMS : Jeff?

MR. JOYCE : I would just like one small wording change there

.

Instead of County Staff giving the right of approval, I would prefer

it come back to the Board since this is something that we are

putting as a condition. Rather than placing that on Staffs

shoulders, it's our responsibility to make sure that this is taken care

of

CHAIRMAN WILLIAMS : Any objections?

MR. WIDMER : No.

CHAIRMAN WILLIAMS : So be.

(Ex. 5, 85/8-22

; C13431) .

11

---

Immediately thereafter, Board member Phelan "move[d] to divide the question ." (Ex . 5,

85/24-86/1 ; C13431-32) . The motion to divide was seconded by Board member Mayer . (Ex . 5,

86/7-8 ; C13432) . Board member Thomas asked for clarification as to what was being divided,

and was advised as follows:

MR. PHELAN: I would like to vote on the conditions first .

CHAIRMAN WILLIAMS

: Okay.

COUNTY CLERK THOMAS : The condition only?

CHAIRMAN WILLIAMS

: Yes .

COUNTY CLERK THOMAS : You want me to read that?

MR. ATKINS : First the motion to divide the question .

(Ex. 5, 86/10-18 ; C 13432) . The motion to divide the question passed unanimously

. (Ex. 5, 87/4-

88/13 ; C13432)

. Thereafter, Board member Phelan stated that he was "speaking in favor of the

conditions." (Ex. 5, 89/17-18 ; C13432) . Board member Mayer "seconded" Board member

Phalen's statement in favor of the conditions, stating "I seconded Mike's motion to divide the

question and I am seconding his motion to pass the special criteria, the berms and the Perpetual

Care Fund." (Ex. 5, 89/19-22 ; C13432) .

A vote was then taken, which vote passed

unanimously . (Ex. 5, 90/1-91/12; C13433).

Next, a second vote was taken, regarding the findings of fact

. Board member Kennedy

may or may not have made the motion (Ex . 5, 91, 15-17

; C13433 ; Chairman Williams said,

"Need a motion to vote on the facts" and Board member Kennedy said, "Okay"), which motion

was not seconded. A roll call vote was taken, with some confusion :

MS . HIDDEN : I don't quite understand what we are voting on .

COUNTY CLERK THOMAS

: We are voting on the facts .

12

---

CHAIRMAN WILLIAMS : The finding of facts .

COUNTY CLERK THOMAS : Finding of fact for 3, and the

motion was to approve the finding of fact .

MR. ATKINS

: You have already voted on the conditions which

are the last -- well, actually the last paragraph on the yellow sheets .

And then also the Perpetual Care Fund was added to that as a

condition. Now you are voting on the rest of the three pages of the

yellow sheets .

MS. HIDDEN : Okay. Aye.

COUNTY CLERK THOMAS

: Joyce?

(Ex. 5, 92/11-93/2; C13433) . The motion failed, with seven votes in favor and ten against

. (Ex.

5, 92/6-94/8 ; C13433-34) .

Board member Trumpe then stated as follows, and was "seconded" by Board member

Salzer:

MS. TRUMPE

: Well, we could offer the motion to accept the

findings of fact on the pink page for Criterion 3, that the facility is

not located so as to minimize incompatibility except those A list of

statements and the B list of statement, and add, as Allen wanted,

the population figures within one and five miles to that list

.

CHAIRMAN WILLIAMS : Okay. You need a second

.

MR

. SALZER : Second .

(Ex. 5, 96/22-97/7; C13434)

. The "motion" passed, with ten votes in favor and seven against

.

(Ex. 5, 97/23-99/17

; C13434-35) .

5 . Criterion

ii

Board member Phelan moved as follows regarding criterion ii

: "May I make a motion? I

would say that the facility is not so designed, located and proposed to be operated that the public

health, safety and welfare will be protected ." (Ex

. 5, 99/21-24 ; C13435) . The motion was not

13

---

seconded.

Board member Mayer suggested a litany of changes to the findings of fact, stating as

follows :

MR

. MAYER: Some of the findings of facts that were put together

by the County Staff on the yellow section, the approve with

conditions, I think are actually still applicable and we ought to try

to incorporate them here tonight

. And I'll try to go through the

ones that I think are, and then if it's amenable to the mover and the

seconder, we can do it like we have been doing

.

But starting not on the first yellow page but moving to the second

yellow page, the fourth comment, Opponent's primary comments

were that the liner system would fail at some point in the future

.

The major difference, when the liner system begin to degrade

.

Skip the next one .

Then the one following that, Applicant and Opponents agree that

protection of the groundwater is the primary concern at the

proposed facility .

Could even put in the next one, considerable difference of opinion

as

to the magnitude and likelihood of a risk.

Skip the next one

.

And then there is a whole section here dealing with Dr

. Barrows

and having to redo the modeling and even in the Staff not being

able to get anything out of it .

So starting there with, One area of concern for the County Staff

was the groundwater impact assessment, and take the next one,

next one, next one, flip to the next page, and then the first two on

the next page

. So ending with Because County Staff was not able

to independently verify correct conclusions, the County is

unwilling to accept the results of the modeling as a method of

ruling out the possibility that the C trenches are or have released

contaminants at the site .

Then skipping down until the

--

on that same page until you get to

Mr

. Liss testified for the Applicant that the groundwater

monitoring data demonstrates that the existing facility is not

contributing contamination to the groundwater at the site

. But then

the next one, add it as well

. Mr

. Norris disputed that conclusion by

pointing to TOX sampling data . Keep going

.

14

---

Nothing on the next page .

So the page after that, scan down until you get to the finding of

fact about the surface impoundment. The County finds the surface

impoundment presently located at the facility

-- I am going to read

this

: The County finds the surface impoundment presently located

at the facility and used for the collection and storage of leachate is

less protective of the public health than other areas of the facility

because it is only double lined and has no effective means of leak

detection . Strike the rest of it .

Next page . The second item . A number of the opponents, their

witness Charles Norris, and Dr . Lee who submitted comments into

the public record call into question the safety of the inactive

portions of the site .

COUNTY CLERK THOMAS

: Excuse me, where are you? Which

one?

MR. MAYER: So you got the surface impoundment --

COUNTY CLERK THOMAS : Okay.

MR

. MAYER: Next page, the second one . A number of the

opponents --

COUNTY CLERK THOMAS : Right

. And the third one also?

MR. MAYER

: No, not the third one .

COUNTY CLERK THOMAS : Okay.

MR. MAYER: Just the second one .

(Ex. 5, 109/9-112/10

; C13437-38). A vote was taken "on the pink sheets" which passed, ten in

favor, seven against . (Ex

. 5, 126/1-127/14 ; C13442).

6. Criterion i

Regarding criterion i, Board member Mayer "move[d] to substitute the pink sheet that

[he] passed out to Board members and to Staff before with the

- and move[d] that the facility is

not necessary to accommodate the waste needs of the area it is intended to serve, and to use the

15

---

findings that [he] distributed to the Committee ." (Ex

. 5, 127/17-23 ; C13442) .

Board member

Phelan seconded the motion (Ex . 5, 128/7-9 ; C13442),

and the matter was put to discussion . The

Chairman refused Board member Riggenbach's request for a brief delay for reading of the

substitute pages :

MR. RIGGENBACH: Since we were just given this at the start of

the hearing, can we have a five minute recess to give us a chance

to review this?

CHAIRMAN WILLIAMS

: A second to a five minute recess?

I don't think it's necessary

. We will continue on .

Any other discussion?

MR. RIGGENBACH

: Can we have time to read at least together?

This goes right to the heart of what Mr Thomas has --

CHAIRMAN WILLIAMS

: Do you want to hold hands while we

read together? We are all adults

. I think we can read pretty good.

MR. RIGGENBACH

: I would like the time to read it .

I would like to --

MR. MAYER

: I would like to respect Tim, especially since

members of the audience might not have it, if we could read it out

loud.

COUNTY CLERK THOMAS

: Want me to read it?

MR

. MAYER

: It's going to take time, I realize, but I think it would

COUNTY CLERK THOMAS

: Whatever you decide .

CHAIRMAN WILLIAMS

: I don't think it should be read

.

We need to move on with this

.

He's had time to read it .

16

---

MR

. MAYER: You are the Chairman .

(Ex. 5, 130/2-131/8 ; C13443) . Thereafter, the findings were approved, with ten voting in favor

and seven against. (Ex. 5, 131/10-133/10 ; C13443) .

Following the actions of the Committee members as one painfully winds through the

transcript of this meeting, keeping a flow chart as to which motions were seconded, which

amendments were accepted by the movants and what actually happened, it becomes clear that

during the April 6, 2006, meeting of the Committee, what was supposed to be a quasi judicial

process degenerated into chaos . When one applies even the basic rules of order and procedure in

analyzing this transcript, it is an inescapable conclusion that nothing binding or final happened

with regard to criteria i, ii, iii and v

.

C. Filings Subsequent to the April 6, 2006 Meeting

As set forth at greater length above, the purple sheets, the yellow sheets, and the pink

sheets were never tendered to PDC, made available to the public, filed in the County Clerk's

office or made a part of the Record filed by the County Board with the Pollution Control Board

.

(Ex. 6, Nos. 1987-2013

; Ex. 7, Nos. 1987-2013) . Moreover, even Board member Mayer at the

April 6, 2006 Committee meeting acknowledged that his alternative "pink sheets" were not

distributed to the public . (Ex. 5, 130/21-23 ; C13443) .

The State's Attorney's Office prepared a Memorandum for the County Board, the County

Clerk and the County Administrator, dated April 26, 2006 . (Ex. 8).

Therein, the State's

Attorney set forth guidelines for the May 3, 2006 meeting of the County Board stating, in

pertinent part, as follows

:

[Y]ou will vote on findings of fact, which may be the

recommended findings from your previous meeting or may be

different findings developed through amendments of those

findings. * * * .

17

---

[T]his application comes before you seeking approval . Although

the Peoria County Pollution Control Site Hearing Committee found

facts supporting a denial, no vote was ever taken to actually

recommend a denial, approval, or approval with conditions . Even

if there had been such a vote, you would still be sitting to decide an

application seeking approval and having this proceed on a motion

to approve will avoid the confusion of a yes vote being a no .

(Ex. 8, C13459 ; emphasis added) .

The next day, April 27, 2006, "Recommended Findings of Fact" (Ex

. 9) and a Resolution

representing the County Staffs apparent interpretation of the Committee's actions on April 6,

2006 (Ex

. 10), were filed with the County Clerk, along with other documents . Karen Raithel, the

Peoria County Recycling and Resource Conservation Director, actually compiled the

Recommended Findings of Fact which she believed were representative of the Committee's

actions on April 6, 2006 . (Ex .

9;

see

Ex . 13, 38/11-15 et seq.) .

The Resolution filed on April 27, 2006, purported to be a recommendation by the

Committee to approve the Application, contingent on PDC's acceptance of certain special

conditions (contrary to the statement of the Assistant State's Attorney)

. (Ex. 10; see Ex. 8,

C13459). The proposed Resolution begins with a statement of its intent

: "Your Regional

Pollution Control Site Hearing Committee does hereby recommend passage of the following

Resolution

... ." (Ex. 10) . The Resolution provided, in pertinent part, as follows

:

WHEREAS, on April 6, 2006 your Committee deliberated

concerning the evidence presented at the hearing and found certain

facts relevant to these statutory criteria to have been proven in

these hearings ; and

WHEREAS, on April 6, 2006 your Committee did not

recommend either approval or denial of the proposed site location

of said facility .

NOW THEREFORE BE IT RESOLVED, by the Peoria

County Board, after due consideration of all of the evidence from

18

---

the public hearing and public comment documents submitted, that

the Peoria County Board approves local siting for the Peoria

Disposal Company expansion of an existing hazardous waste

facility ; and

BE IT FURTHER RESOLVED, approval of the application

is subject to acceptance by Peoria Disposal Company of all special

conditions identified in the Findings of Fact separately voted upon

immediately following passage of this resolution

.

(Ex. 10) .

(The Resolution was included with the Record filed by the County Board in this

appeal, stamped C13710, though the Resolution was never the subject of a vote by the County

Board).

D.

The May 3, 2006 Meeting of the County Board

A page titled "Agenda" was included with the Record filed by the County Board in this

appeal, pertaining to the May 3, 2006 meeting of the County Board

. (Ex. 11 ; C13613)

. The first

item listed on the Agenda related to a determination concerning the Application

. (Id .)

At the

May 3, 2006 meeting, Assistant State's Attorney William Atkins explained the item as follows

:

One of [the items on the Agenda] is a motion for approval of the

PDC Application

. The reason that it is up for a motion for

approval, there was no recommendation made for approval or

denial by the Site Hearing Committee

. There was certainly a

recommendation made with regards to finding of fact and those

findings

of fact do

certainly recommend

or support a

recommendation of

denial, but

there was no

actual

recommendation of denial

. So the only action being sought tonight

is on the part of PDC, which has filed an Application seeking

approval

. So this should come before you on a motion to approve

.

If you vote it down, that will be the end of the motion to approve

.

You would not have to have a second motion to deny the

application

. You either vote it up or down based on the motion to

approve .

(Ex. 12, 16/10-17/4

; C13715 ; emphasis added)

.

The Clerk announced the first item on the Agenda as follows

:

19

---

Item number one is an Application for Peoria Disposal Company

for local siting approval of a pollution control facility that was

filed with the Peoria County Clerk on November 14th, 2005

.

(Ex. 12, 31/18-22 ; C13719)

. Board member Hidden moved for approval of the Application (Ex

.

12, 32/1

; C13719), which Motion was seconded by Board member Baietto (Ex

. 12, 32/4 ;

C13719)

. Board member Hidden's motion was not a motion for adoption of the Resolution

attached as Exhibit

10 (which Resolution purports to memorialize the Committee's

recommendation of approval of the Application subject to PDC's acceptance of certain

conditions).

Board member Riggenbach moved as follows

:

I'd like to propose an amendment to the question

. I would like it to

include all of the special conditions proposed by the Applicant at

the public hearings on February 22nd through 27th, the special

conditions proposed by the County Staff in their initial Staff

Report dated March 27th, the Supplemental Staff Report dated

April 3rd, and in addition the special conditions adopted by this

Regional Pollution Control Site Hearing Committee on April 6th,

specifically I would like to point out the special conditions that no

expansion occur over trench C-1, and I would like to encourage

any additional conditions that we discuss tonight based upon our

deliberations be offered as amendments at the appropriate time

.

The Staff has prepared a summary of these conditions

. If it would

be beneficial, we could have the Clerk read them or whatever you-

(Ex . 12, 32/7-33/4 ; C13719)

. The Chairman interrupted Board member Riggenbach, requesting

a second

. (Ex. 12, 33/5-6 ; C13719) .

Board member Kennedy seconded Board member

Riggenbach's Motion to Amend

. (Ex. 12, 33/7 ; C13719)

. Board member Phelan moved to

divide the question (Ex

. 12, 33/10-11

; C13719), which Motion Board member Joyce seconded

(Ex. 12,

Next,

33/14the

; C13719)Chairman

. The

asked

motion

whether

to divide

the

passedBoard

.

members

(Ex.

;C13720).

12,34/2-3"have

a copy for everybody on

these conditions he [Board member Riggenbach] wants to add in?" (Ex

. 12, 34/3-5; C13720)

.

20

---

Mr

. Urich, the County Administrator, stated that "[t]here should be a yellow sheet, a list of 31

special conditions that the Staff put together" in the packets provided to the County Board

members . (Ex. 12, 34/8-10

; C13720).

The Chairman told the County Clerk to "hit the

highlights" from the "yellow sheet ." (Ex

. 12, 34/13 ; C13720)

. The County Clerk listed the 31

conditions as follows

:

These special conditions are, 1, no expansion over trench C-1

; 2,

surface impoundment

; 3, environmental monitoring, leachate

; 4 is

leachate, collection sumps

; 5 is C-1 sump manhole retrofit

; 6,

retain low permeability material over capped portions of cell C-2

;

No . 7 is an alternative manhole retrofit

; No . 8 is an intermediate

liner ; No

. 9, ambient air monitoring

; 10, methane migration

planning

; 11, additional ground water monitoring wells

; 12,

construction quality assurance

; 13, leachate collection system

inspection

; 14, sediment basin energy dissipators

; 15, capacity

guarantee for Peoria County generators

; 16, additional expansions

are prohibited

; 17, minimize visual impact with a screening berm

;

18, leachate removal from sumps

; 19, storm water detention basin

testing

; 20, perpetual care fund effective upon PDC's receipt of a

permit from the Illinois EPA to operate the proposed expanded

landfill

. PDC shall pay additional sums into a perpetual care fund

on at least a quarterly basis equal to $5 per ton of the expanded

volume of waste deposited in the PDC landfill

; 21, minimum

annual contribution to perpetual care fund

; 22, an additional 1

million Post Closure Trust Fund contribution

; No. 23, signage ; No.

24, designated truck route notification

; 25, annual emergency

planning exercise

; 26, annual mock disaster drill

; 27, call back

system

; 28, Waste Review Committee

; 29, restrictions on transfer

;

No

. 30, no rail line spurs

; 31, county involvement in permitting

process

.

(Ex

. 12, 35/6-36/17 ; C13720)

. The "yellow sheet" was not placed in the files of the County

Clerk or otherwise made available to the public or PDC

as part of the Record required to be

maintained by the County Clerk

. (See Ex .

17, ¶¶12-14) .

Even "as amended," the motion before the County Board would fail to synch with the

Resolution filed on April 27, 2006, purporting to be the Committee's recommendation of

approval of the Application subject to PDC's

"acceptance" of certain conditions

. (Ex

. 10;

21

---

emphasis added) .

Essentially, the Resolution would have put the cart before the horse,

impermissibly requiring PDC to acquiesce to conditions (thereby requiring PDC to waive its

rights on appeal) prior to the actual grant of approval of the Application

. (Ex

. 10) . The motion

before the County Board, in contrast, would grant actual approval, subject to PDC's meeting

certain conditions.

Prior to the vote on the motion to amend, the motion to divide, which had already been

passed, was purportedly "withdrawn" by the movant

:

CHAIRMAN WILLIAMS

: Thank you .

Mr. Atkins? We got a

little bit ahead of ourselves, Michael, on your dividing question

.

MR. ATKINS

: Since there hadn't actually been a vote yet on the

motion to amend, at this point there's no question to be divided

. So

I think it would be appropriate first to vote on the amendment,

whether or not to amend the question, and then it can be divided

once it actually has been amended

.

MR

. PHELAN

: I withdraw the motion .

MR

. ATKINS : Thank you.

(Ex. 12, 36/18-37/7

; C13720)

. The motion to amend was then voted on and passed

. (Ex . 12,

37/9-39/3

; C13720-21)

. No subsequent motion to divide was made by any Board member

. The

motion to approve as amended with special conditions was voted on and failed

. (Ex

. 12, 39/11-

/6-36/17

; C13720) .

The County Clerk announced the second item on the Agenda as follows

:

Item number two is a recommendation from your Peoria County

Regional Pollution Control Site Hearing Committee to approve

findings of

fact concerning Peoria

Disposal

Company's

Application for local siting approval of a pollution control facility

that was filed with the County Clerk on November 14th, 2005

.

(Ex

. 12, 41/11-18 ; C13721)

. Board member Mayer moved as follows

:

22

---

I move to adopt the findings of fact as presented this evening

which do not include specific population figures

. I'd also like to

add to criterion number two, County Staff indicated upon

questioning at the April 3, 2006, hearing that it was their opinion

that the Application as submitted did not satisfy criterion two

.

County Staff indicated it was their opinion that only with the

imposition of numerous special conditions could criterion two be

satisfied.

(Ex . 12, 42/12-23 ; C13722)

. Board member Mayer's motion to adopt the findings was seconded

by Board member Elsasser . (Ex. 12, 43/3

; C13722)

. The motion to adopt the findings was voted

on and passed. (Ex

. 12, 44/1-45/15 ; C13722) . Because the findings were not read into the

transcript at the May 3, 2006 meeting (as is required by parliamentary procedure), and no writing

containing the findings was ever approved by the County Board, it is impossible to determine

with certainty what findings were adopted by the County Board

.

No vote was taken to approve the Application without special conditions or with different

special conditions. No vote was taken to deny the Application

.

E.

Documents in the Record after May 3, 2006

No written resolution reflecting any actions of the County Board on May 3, 2006, was

ever approved by the County Board

. No minutes of the May 3, 2006, County Board meeting

have ever been approved by the County Board

. The transcript of the May 3, 2006 meeting of the

County Board was first posted on the County's website on May 12, 2006 (which transcript did

not include page numbers) . (Ex. 1, No . 47

; Ex . 4, No . 47; see also

Ex. 15, 31/22-32/23). The

best recollection of the Peoria County Information Technology Director Russell Haupert is that

he received the transcript directly from the Court Reporter on May 11, 2006

. (Ex

. 15, 28/16-24).

This is consistent with the recollection of Peoria County Recycling and Resource Conservation

Director Karen Raithel. (Ex

. 13, 29/6-18) .

23

---

A hard-copy of the transcript of the May 3, 2006 meeting of the County Board, including

page numbers and an index, was subsequently filed in this appeal

. (Ex. 12; C13711-27) . The

hard copy of the transcript was not tendered to PDC or made available to the public prior to this

appeal . (See Exhibit 17).

On June 7, 2006, thirty-five (35) days after the County Board meeting on May 3, 2006,

and the last day on which PDC could petition the Pollution Control Board for review of whatever

did or did not happen at the May 3, 2006 meeting, PDC's attorney Brian Meginnes met with

Peoria County Deputy Clerk Megan Fulara (Ex

. 16, 7/2-10) at her office for the purpose of

seeing if the Record of the proceedings on the Application contained a copy of the transcript of

the May 3, 2006 meeting . (Ex

. 17)

. The Record available to the public did not contain such a

transcript at that time

. (Ex. 17, ¶¶8-9, 14)

. The Record available to the public also did not

contain the Agenda pertaining to the May 3, 2006 meeting at that time

. (Ex . 17, ¶¶10-11, 14)

.

The Record available to the public also did not contain the "yellow sheets" referenced at the May

3, 2006 meeting at that time . (Ex

. 17, ¶¶12-14)

. In her discovery deposition, Megan Fulara did

not and could not contradict the Affidavit of Brian Meginnes regarding this point

.

(Ex. 16,

56/11-18, 58/9-24)

.

Additionally, the recollection of Peoria County Recycling and Resource

Conservation Director Karen Raithel corroborates the Affidavit of Brian Meginnes

. (Ex . 13, 51-

53).

On appeal, the County Board filed a group of documents, titled "Record and Transcript of

Peoria County Board's Decision and Findings" (C13710-48) consisting of the following

:

•

The Resolution, on which the County Board never voted, approving the Application

subject to PDC's acceptance of certain special conditions, filed with the County Clerk

on April 27, 2006 (Ex .10; C13710)

;

•

The undated transcript of the May 3, 2006 County Board meeting (Ex

. 12; C13711-

27);

24

---

• A page including a printed list of the Board members, and another column labeled

"Comments," with the names Baietto, Elsasser, Hidden, Joyce, Kennedy and Mayer

written in by hand (Ex . 18

; C13731)

;

• A page with check marks next to the Board members' names, seemingly recording

their votes on "amend" (handwritten), "Vote #1" and "Vote #2," and, apparently,

their attendance (Ex . 18; C13732) ;

• Two legal-size sheets divided into seven columns titled "County Board Minutes"

bearing handwritten notes (possibly the County Clerk's), listing citizens' remarks and

the movers and seconding members on the votes (Ex. 18 (reduced)

; Cl 3733-34) ;

•

The "Recommended Findings of Fact" filed with the County Clerk on April 27, 2006

(Ex. 9, C13735-48)

.

During depositions in this case, it was discovered that Peoria County Recycling and

Resource Conservation Director Karen Raithel compiled "Final Findings of Fact" which she

believed were representative of the County Board's actions on May 3, 2006 . (Ex. 14; see Ex. 13,

56/13 et seq.). The "Final Findings of Fact" (Ex

. 14) were, in fact, different than the

"Recommended Findings of Fact" filed on April 27, 2006 (Ex . 9) . (Ex. 13, 58/23-59/13). The

"Final Findings of Fact" (Ex

. 14) were never shown to any member of the County Board . (Ex .

13, 59/17-19) . The "Final Findings of Fact" (Ex

. 14) were never filed in the County Clerk's

office or otherwise made available to PDC or the public, except in discovery in this appeal

. (Ex.

6, Nos. 1978-1986 ; Ex. 7, Nos . 1978-1986)

. The "Final Findings of Fact" (Ex. 14) were not filed

as part of the Record by the County Board in this appeal . (Ex . 6, No. 1982 ; Ex. 7, No

. 1982) .

25

---

ARGUMENT

I.

THE COUNTY BOARD DID NOT VOTE To DENY THE APPLICATION, AND THEREFORE,

THE APPLICATION Is DEEMED APPROVED .

Section 39 .2(e) of the Act provides, in pertinent part, as follows regarding the deadline

for "final action" by a municipal siting authority

:

* * * . If there is no final action by the county board or governing

body of the municipality within 180 days after the date on which it

received the request for site approval, the applicant may deem the

request approved.

415 ILCS §5/39

.2(e). The Illinois Administrative Code defines "action" as follows for purposes

of triggering the appeal deadlines in siting cases :

* * * . Pursuant to Section 39 .2(e) of the Act, action includes

failure of the governing body to act within 180 days after receiving

a request for siting approval .

35 Ill . Adm. Code §107

.204.

At the May 3, 2006 meeting, the County Board took only the following actions : (a) a

motion to approve the Application with certain special conditions failed, and (b) findings of fact

were adopted (although, as above, the failure to read same into the transcript or approve a writing

containing same makes it impossible to determine with certainty what findings were adopted by

the County Board)

. The County Board did not affirmatively deny the Application . The failure to

pass the motion to approve with special conditions is not the same as the passage of a motion to

deny siting approval

.

In the case of Hoesman,et al

.v. City Council of the City of Urbana, Illinois,et al., the

Pollution Control Board found that it was unable to take a final action in a siting appeal, because

of a "deadlock

." PCB 84-162, 1985 WL 21156, * 1 (Illinois Pollution Control Board, March 7,

1985)

. In order for the Pollution Control Board to take an action, an affirmative vote is required

26

---

of at least four (4) members of the Board . 415 ILCS §5/5(a) . In Hoesman, the five voting

members of the Pollution Control Board split 2-3 on a motion to reverse the City Council's

decision, and split 3-2 on a motion to affirm the City Council's decision, creating a deadlock

.

Therefore, the applicant could consider the application approved pursuant to statute . The Order

entered by the Pollution Control Board provides, in pertinent part, as follows :

On March 7, 1985, at its regularly scheduled Board Meeting, the

Board met to take final action on this appeal . The Board by statute

is composed of seven members and an affirmative vote of four

members is required in order for the Board to take any action . (See

Section 5(a) of the Act .) Two motions were offered. The first

motion moved the Board to reverse the determination of the

Council . That motion failed to carry by a vote of 2-3, with 5

members of the Board present . [FN1] A second motion moved the

Board to uphold the determination of the Council

. That motion

failed to garner the votes of a statutory majority of the Board (4),

and, therefore, also failed by a vote of 3-2 . Therefore, the Board is

unable to take final action on this appeal

.

Pursuant to Section 40 .1(a) and (b) of the Act, if there is no final

action by the Board within 120 days from the date the petition is

filed, the respondent (in a Section 40

.1(b) appeal) may deem the

site location approved . Respondents, by letter, provided a limited

waiver of their right to a decision within 120 days and extended the

decision period through March 7, 1985

.

Due to the failure of separate motions to gain the necessary four

votes to affirm or reverse the Council's action, and the termination

of the statutory decision period, it is the Board's opinion that the

Respondent may deem the site location in question approved by

operation of law . (See Section 40 .1(a) and (b).

Also see Cement

Mfg. Co. v. Pollution Control Board (1980), 84 Ill

. App . 3d 434,

405 N.E. 2d 512) ; Illinois Power Company v . Illinois Pollution

Control Board (1983), 112 Ill . App. 3d 457, 445 N .E

. 2d 820.)

Id. (emphasis added)

.

The Hoesman Order makes two things perfectly clear

: (1) an affirmative motion is

required to take action as a body (in this case, a motion to approve or a motion to deny), and (2)

the failure of a motion to approve to pass with the requisite votes is not the same as an

27

---

affirmative motion to deny. See also, City of Sycamore v

. Illinois Environmental Protection

Agency,

PCB 83-172, 1985 WL 21412, *1 (Illinois Pollution Control Board, July 11, 1985)

("The Agency's Supplemental Motion to Dismiss was taken up at the Board's January 10, 1985

meeting

. However, the motion failed to muster the four affirmative votes required under 35 Ill

.

Adm

. Code 101 .109 [now §101

.108(d)] to become a `final determination

.' Consequently, no

action was taken on the motion and the case proceeded to hearing")

.

The requirement that an application for siting approval be affirmatively denied by the

local siting authority was previously addressed by the Pollution Control Board in

Smith,et al. v .

City of Champaign,et al.,

PCB 92-55, 1992 WL 207560 (Illinois Pollution Control Board,

August 13, 1992)

. In that case, the Champaign City Council failed to vote affirmatively to deny

an application for siting approval within the statutory deadline

:

One council member, Gary Shae, read a letter stating that he had

decided to abstain because of an ex parte communication which

had such an influence on him that he was unable to ignore it and

make a decision based on the record

. (C. 1628.)

The vote on the

proposed ordinance was one vote "yes", two votes

"no", and six

abstentions . (C

. 1634-1635

.) The city council's rules of order

require that all ordinances be passed by affirmative votes of no less

than five members . (Pet.Exh

. 2, § 2.64(c) .)

The mayor, Dannel

McCollum, declared a temporary loss of quorum, based on the six

abstentions . (C. 1635

.) Pursuant to the council's rules of order, a

temporary lack of quorum results in postponement of the matter

under consideration until the next regular meeting

. (Pet.Exh

. 2, §

2.64(j) .)

The next meeting was scheduled for March 17, 1992, two

days after the March 15 decision deadline

. A motion to reconsider

the vote failed, with four "yes" votes, four "no" votes, and one

abstention

. (C. 1638- 1640

.) On March 16, 1992, counsel for

ISWDA and XL advised Champaign that the applicants considered

the application to be approved as of March 15, 1992 "as a result of

the City of Champaign's lack of taking final action within the 180

days allowed by II1 .Rev.Stat

. ch. 111 1/2 , par

. 1039 .2(e) ." (C.

1608.)

Petitioners filed the instant appeal on April 15, 1992

.

28

---

Id. at *2. The Pollution Control Board held that there was no "final action" under the Act within

the statutory deadline, and therefore, the application was "deemed approved"

:

Section 39 .2(e) clearly states that if a local decisionmaker does not

take final action within 180 days, "the applicant may deem the

request approved." (I1I.Rev.Stat.1991,

ch. 111 1/2 , par. 1039.2(e).)

Therefore, the Board rejects petitioners' claim that the application

was denied because the application failed to command a majority

vote. The statutory language also repudiates petitioners' argument

that an approval without an affirmative vote by a majority of

council members would be unconscionable . Section 39 .2 gives

local governments the power and the responsibility to rule upon an

application for siting approval . The statute clearly contemplates a

situation, such as this, where the local decisionmaker fails to take

final action within the statutory deadline . The remedy provided by

the legislature is that the application is deemed approved . This case

fits the statutory scheme perfectly

: Champaign failed to take final

action within 180 days, and therefore the application for siting

approval is deemed approved.

Id. at *6 (emphasis added) .2

Moreover, the Illinois Administrative Code now explicitly defines "action" as including a

failure to act on the part of the local siting authority :

* * * . Pursuant to Section 39

.2(e) of the Act, action includes

failure of the governing body to act within 180 days after receiving

a request for siting approval

.

35 Ill . Adm. Code §107

.204. Surely the regulation contemplates more than a failed oral vote to

approve siting with certain special conditions

. It cannot be said that the clear will of the County

Board, as would be understood by a reasonable person, was to affirmatively deny the

2

The Pollution Control Board also expressly rejected the concurrence in the case of

Guerrettaz,et at v .

Jasper County,et al., PCB

87-76, 1988 WL 160128 (Illinois Pollution Control Board, January 21, 1988) :

The Guerrettaz concurring opinion cited by petitioners is dicta, since that

case was actually decided on the grounds that the required notice of the

filing of the application was deficient

. The majority opinion never

discussed the question of "final action" or the effect of the tie vote in that

case. (Guerrettaz v . Jasper County (January 21, 1988), PCB

87-76

.)

PCB 92-55, 1992 WL 207560, *5 .

29

---

Application

. Even after the vote of the County Board failing to approve the Application with the

listed special conditions, the County Board

could still have approved the Application,

unconditionally or with different or additional special conditions.

A review of the facts at issue herein makes clear that no vote was taken to deny the

Application at the May 3, 2006 meeting of the County Board

. Pursuant to the Rules of Order of

the Peoria County Board,

"[a] majority of the members of the Board shall constitute a quorum

for transaction of business

; and all questions which shall arise at meetings shall be determined by

the votes of the majority of the members present at such meetings

. .. ."

Rules of Order, §7 .

(Copies of the relevant portions of the Rules of Order of the Peoria County Board are attached

hereto as Appendix B)

. Therefore, the affirmative vote of ten (10) of the eighteen (18) Board

members present at the May 3, 2006 meeting was required to pass any motion brought before the

County Board. (See Ex. 12) .

A motion was made for approval of the Application (Ex

. 12, 32/1, 32/4

; C13719), as was

a motion to amend the motion for approval (Ex

. 12, 32/7-33/4, 33/7; C13719)

. A "motion to

divide" passed (without explanation as to what exactly was being divided)

. (Ex

. 12, 33/10-11,

33/14, 34/2-3

; C13719-20) . The motion to amend was voted on and passed

. (Ex

. 12, 37/9-39/3 ;

C13720-21) .

Finally, the motion for approval, as amended (to, presumably, include certain

special conditions), was voted on and failed to pass, as only six of the Board members voted in

favor of the motion

. (Ex . 12, 39/11-/6-36/17 ; C13720).

No vote was taken to deny the

Application, or to approve the Application unconditionally, or to approve the Application with

different special conditions .

Had the County Board been so inclined, the Board could have voted

again to approve the Application unconditionally or with different special conditions, as the

failure of the amended, conditional motion for approval did not "kill" the Application

. Very

30

---

simply, the failure of the amended, conditional motion for approval to pass is not the same as the

passage of a motion for denial of the Application

.

Based on the foregoing, no final action was taken on the Application,

as neither an

affirmative vote approving nor an affirmative vote denying the Application was taken

. Section

39.2(e)

of the Act requires that

"[i]f there is no final action by the county board or governing

body of the municipality within 180 days after the date on which it received the request for site

approval, the applicant may deem the request approved ." 415 ILCS §5/39 .2(e)

. Therefore, the

Application in this case is deemed approved

.

II. No

WRITTEN DECISION WAS EVER CREATED

By THE COUNTY

BOARD, AND

THEREFORE, THE APPLICATION

Is DEEMED APPROVED .

Section 39

.2(e) of the Act further provides that a "decision" constituting "final action"

must be written, and must embody the reasons for such decision

:

(e) Decisions of the county board or governing body of the

municipality are to be

in writing, specifying the reasons for the

decision, such reasons to be in conformance with subsection (a) of

this Section . * * *.

Such decision shall be available for public

inspection at the office of the county board or governing body of

the municipality

and may be copied upon payment of the actual

cost of reproduction

. If there is no final action by the county board

or governing body of the municipality within 180 days after the

date on which it received the request for site approval, the

applicant may deem the request approved

.

415 ILCS §5/39.2(e)

(emphasis added)

. The Illinois Administrative Code defines "action" as

follows for purposes of triggering the appeal deadlines in siting cases

:

* * *. Action means the local government's official written

decision granting or denying local siting approval

. * * * .

35 Ill. Adm. Code §107

.204 (emphasis added)

. Clearly, a writing specifying the reasons for the

decision is required by the law and regulations in order for there to be "final action

."

31

---

The normal "writing" in siting cases is a resolution passed by the local siting authority,

indicating the decision of the body and its supportive findings of fact . For example, in Land and

Lakes Co. v. Illinois Pollution Control Bd., the Village of Romeoville issued a written resolution :

Here, the record shows the Village issued a written resolution

within the statutory time limit required by the Act . The resolution

clearly denied the petitioners' application for site approval based

upon the Village's determination that it did not have jurisdiction to

approve the application .

245 I11 .App.3d 631, 642, 616 N .E.2d 349, 356, 186 I11 .Dec

. 396, 403 (3 Dist. 1993),

appeal

denied, 152 I11.2d 561, 622 N .E.2d 1209, 190 I11 .Dec. 892 (1993) .

See,

e.g.,

Waste Management

of Illinois, Inc . v. County Board of Kane County, PCB 03-104, 2003 WL 21512770, *3 (Illinois

Pollution Control Board, June 19, 2003) ("Twenty-three members of the Kane County Board

voted in favor of Resolution 02-431 denying siting, and two members voted against that

resolution. [Footnote omitted

.] The Kane County Board's written decision includes Resolution

02-431 and adopts the local hearing officer's findings of fact and conclusions of law

....").

The Peoria County Code itself assumes that a resolution is created embodying the final

decision of the County Board, defining the "Record" as including, "[a] copy of the resolution

containing the final decision of the county board ." Peoria County Code, §7.5-45(a)(9)

. The

County Board includes the Resolution recommending approval of the Application (described

above) in its "Record and Transcript of Peoria County Board's Decision and Findings" filed in

this appeal, presumably because there was no other Resolution available for inclusion therein

.

(Ex. 10; C13710). As described above, the County Board never acted on the Resolution in the

Record (Ex

. 10), because (again following the "stream of consciousness" style demonstrated so

graphically at the April 6, 2006 meeting of the Committee) the County Board failed to move for

adoption of the Resolution at the May 3, 2006 meeting, and actually acted on a motion to

32

---

approve with different terms than those recommended in the Resolution

. (See Ex. 12, 32/1-4 ;

C13719) .

In the absence of an actual Resolution embodying the action of a municipal siting

authority, proper minutes of the meeting of such authority have been held to satisfy the writing

requirement in 415 ILCS §5/39

.2(e) and 35 Ill. Adm

. Code §107 .204

. For example, in the case

of

Solid Waste Agency of Northern Cook County (SWANCC) v

. City of Des Plaines, the

Pollution Control Board found that "the Des Plaines city council vote on February 18, 2003 to

approve siting, as reduced to writing in the minutes of that meeting (Mot

. Exh. 5), constituted

final action for the purposes of this appeal

." 2003 WL 21405868, *2, PCB 03-161 (Illinois

Pollution Control Board, June 5, 2003)

.3

The Board also noted that since the Des Plaines city

council had granted unconditional approval, a finding that

all

siting criteria had been proven was

inherent

in the approval itself as reflected in the official minutes of the meeting

. Id. at *3 . In the

SWANCC

case, an opponent or any other member of the public would have been able to learn

everything there was to know in order to perfect an appeal simply by reading the meeting

minutes

.

In this case, unlike in the SWANCC

case, no minutes of the May 3, 2006 County Board

meeting were ever approved or adopted by the County Board

. The County Clerk is required to

maintain minutes by statute :

3

The instant facts are also distinguishable from those in

Waste Management of Illinois, Inc. v. PCB,

145

Ill. 2d 345, 352, 585 N

.E.2d 606, 609, 165 I11

.Dec. 875 (1991)

. In that case, the Court considered whether

an order by the Pollution Control

Board

constituted "final action" under 415 ILCS §5/40

.1, without the

necessity of filing the Board's written opinion

.

Because there is no express statutory requirement

pertaining to the Board

that requires a written decision for "final action", the Court held that the written

"Order" itself was sufficient

. The Court rejected the argument that actual findings were required, because

that requirement is found in an unrelated portion of the Act, and to impose that requirement would be to

improperly tie one statutory provision to another

. (It goes without saying that even a Board "Order" is in

writing)

. In this case, however, both the Act and the administrative regulation require the local governing

body's final decision to be in writing, and 415 ILCS §39

.2(e) also requires that written decision to specify

the reasons for such decision

.

33

---

Subject to the provisions of "The Local Records Act", the duties of

the county clerk shall be-

1st

. To act as clerk of the county board of his county and to keep

an accurate record of the proceedings of said board, file and

preserve all bills of account acted upon by the board * * * .

55 ILCS §5/3-2013 .

The Illinois Attorney General has summarized the requirements of the

County Clerk's statutory duties as follows

:

The county clerk is charged by statute with the duty to keep the

record of the proceedings of the county board, and, because that

duty is one imposed by statute, the county board cannot alter it

.

The record kept by the clerk is the only competent proof of the

official acts of the board . People v

. Cleveland, Cincinnati,

Chicago & St. Louis Ry. Co. (1915), 271111

. 226, 228-29.

**s

Although it might be suggested that the duty to "keep an accurate

record of the proceedings" of the board could be satisfied by the

preservation of records created by others, a mere custodian

generally cannot assure the accuracy of such records

. Section 3-

2013 of the Counties Code clearly contemplates that

the clerk is

not charged merely with the preservation of the records of

proceedings, but is responsible for creating them .

Illinois Attorney General Opinion, No

. 2000-004 (emphasis added)

. (Clearly, the transcript is

not equivalent to minutes of the May 3, 2006 Board meeting,

as

the Clerk did not create such

transcript) .

Moreover, the Rules of Order of the Peoria County Board require that the record of a

County Board meeting maintained by the County Clerk pursuant to the statute be approved and

adopted by the County Board at the subsequent County Board meeting

:

Section 13

: The order of business presented before the Board shall

be

as follows, unless otherwise determined upon by action of the

Board :

(1) The proceedings of the preceding meeting as prepared by the

Clerk of the Board may be

:

34

---

(1) read and corrected, and shall be

(2) approved and adopt[edl * * * .

Rules of Order, §13(1) (emphasis added)

. No such vote to approve and adopt any documents or

record pertaining to the May 3, 2006 County Board meeting occurred at the subsequent meeting

of the County Board .

Having failed to produce a Resolution embodying its "decision," and having failed to

have minutes of the May 3, 2006 County Board meeting prepared by the County Clerk, the

County Board has instead collected a great mass of documents which, all together, purport to

represent the County Board's "final action" on the Application

. The "writings" proffered by the

County as

the written decision required by the law and regulations, titled as a group, "Record and

Transcript of Peoria County Board's Decision and Findings" (C13710-48), consist of the

following :

•

The recommended Resolution for approval of the Application, conditioned on PDC's

acceptance of certain conditions, filed with the County Clerk on April 27, 2006

(Ex.10

; C13710), but never acted upon by the County Board

;

•

The undated transcript of the May 3, 2006 County Board meeting (Ex

. 12 ; C13711-

27);

•

Four pages bearing handwritten notes, possibly taken by the County Clerk during the

May 3, 2006 County Board meeting (Ex. 18

; C13731-34) ; and

•

The "Recommended Findings of Fact" filed with the County Clerk on April 27, 2006

(Ex. 9, C13735-48)

.

Very recently, on November 6, 2006, the County Board filed its Motion for Leave to

Supplement Record on Appeal and File Second Amended Index

. The Supplemental Record

would include, according to the language of the County Board's Motion for Leave, "Proposed

Findings of Fact prepared by County Staff for consideration by and distributed to the County

Board prior to the April 6, 2006, committee meeting at which the Proposed Findings of Fact

were reviewed and discussed" and "[t]he one (1) page sheet of findings of fact generated by

35

---

County Staff at the May 3, 2006, County Board meeting incorporating the one change decided

and made by the County Board at that meeting

." Therefore, with the inclusion of the

Supplemental Record, it seems that the County Board created at least three different documents

purporting to be "Findings of Fact" for the Record, plus

the fourth "Final Findings of Fact"

prepared by Karen Raithel and introduced during her deposition

. (Ex. 13; Ex . 14)

. Moreover,

the "Proposed Findings of Fact prepared by County Staff for consideration by and distributed to

the County Board prior to the April 6, 2006 . .

." sought to be filed with the Supplemental Record

includes multiple versions

of each set of findings on the nine criteria, and is fifty-five (55) pages

long.

The "Recommended Findings of Fact" that were filed in this appeal are merely one

County Staff member's interpretation of the events that occurred at the April 6, 2006 meeting of

the Committee, and do not actually reflect the final findings of fact approved at the May 3, 2006

meeting of the County Board . (Ex

. 9; Ex. 13, 58/23-59/13)

. The "Proposed Findings of Fact

prepared by County Staff for consideration by and distributed to the County Board prior to the

April 6, 2006 ..

." sought to be filed with the Supplemental Record are themselves internally

contradictory, including multiple versions of each set of findings

. The "Final Findings of Fact"

were never shown to any member of the County Board (Ex

. 13, 59/17-19), or filed in the County

Clerk's office or otherwise made available to PDC or the public (Ex

. 6, Nos

.1978-1986 ; Ex. 7,

Nos. 1978-1986)

. Most likely, the same goes for the unauthenticated and un-attributed "one (1)

page sheet of findings of fact generated by County Staff at the May 3, 2006, County Board

meeting" sought to be filed with the Supplemental Record

. The "Final Findings of Fact" (Ex

.

14) were not filed as part of the Record by the County Board in this appeal (Ex

. 6, No . 1982

; Ex.

7, No

. 1982), and are not sought to be filed in the County Board's Motion to Supplement

36

---

(presumably because the County Board has admitted that the "Final Findings of Fact" left Karen

Raithel's office for the first time shortly before her discovery deposition (Ex

. 6, Nos . 1977-1986 ;

Ex . 7, Nos . 1977-1986)) .

The fact of the matter is that there is no document (nor even two or three documents

together) that memorializes the decision of the County Board on May 3, 2006 (assuming,

arguendo,

that a decision was actually made)

. Altogether, it appears that the County Board is

asserting that the following are its "Record and Transcript of Peoria County Board's Decision

and Findings" :

Recommended Resolution (1 page) (Ex

. 10; C13710)

+ May 3, 2006 transcript (49 transcribed pages) (Ex

. 12, C13711-30)

+ "Recommended Findings of Fact" dated April 27, 2006 (13 pages) (Ex

. 9; C13735-48)

+ Clerk's handwritten notes (4 pages) (Ex . 18

; C13731-34)

+ "Proposed Findings of Fact" (55 pages) (seeking to file)

+ "Findings of Fact generated. . .

May 3, 2006" (1 page) (seeking to file)

= 123 pages

It is essentially impossible, given the variety, redundancy and volume of the foregoing, to

determine what, if anything, happened on May 3, 2006

. This pile of paper can hardly satisfy the

written decision requirement of the law and regulations

. More troubling still is the fact that the

documents are contradictory and inconsistent with one another

. Most confusing of all, however,

is the fact that the only Resolution placed in the Record in the County Clerk's office for review

by PDC and the public (which is also the only Resolution in the Record on appeal in this case),

actually recommended

conditional approval

of the Application .

(See Ex . 5; Ex . 10 ; Ex

. 11). For

this additional reason, no final action was taken on the Application, and the Application is

deemed approved

.

37

---

The language of the Act is clear and plain . Timely final action in the form of a written

decision specifying the reasons for approval or denial is required in order for there to be "final

action."

This is reinforced by the Illinois Administrative Code's definition of "final action" as

constituting either

the local siting authority's written decision or, more appropriately in this case,

the failure of the local siting authority to act . 35 Ill

. Adm. Code §107 .204. No half measure is

acceptable under the Act or the Illinois Administrative Code

. These provisions are not advisory

;

they are mandatory

. These provisions protect the integrity of the siting process, and protect the

interests of the public, as well as the applicant, in that process

.

The fact in this case is that on the last day to perfect a review to this Board (June 7,

2006), and on every day before that date, it would have been

literally impossible

for a member of

the public to determine what, if anything, happened at the May 3, 2006 meeting of the County

Board, based on a review of the official public record maintained in the County Clerk's office

.

In fact, as of that date, an attorney representing a party to these proceedings was unable to locate

any documents

purportedly constituting a written decision by the County Board

(e.g., the

transcript from the May 3, 2006 County Board meeting, or the "yellow sheets" pertaining to the

Application referenced at the May 3, 2006 County Board meeting) in the office of the County

Clerk, even with the assistance of the Deputy County Clerk vested with the responsibility to

maintain the files pertaining to the Application (Ex

. 16, 11/13-21)

. (See Ex. 17) .

Until the day the Act is amended to allow for parties to a siting application and the public

to get their information regarding the decision of the local siting authority from internet websites,

rather than the Record maintained pursuant to existing law, regulation and ordinance, the

Application must stand

approved by operation of law .

38

---

III. THE FILING OF THE TRANSCRIPT AND OTHER DOCUMENTS IN THE RECORD WAS NOT

TIMELY, AND THEREFORE, THE APPLICATION IS DEEMED APPROVED .

It is indisputable that the County Board actually received the Application in this case on

November 9, 2005

. PDC anticipates that the County Board may allege that it effectively

"received the request for site approval" under Section 39

.2(e) of the Act on November 14, 2005,

the day the County Board purportedly completed its initial review of the Application, which date

the County Board has referenced as the "deemed filed" date throughout these proceedings

. In

fact, under the law, the date of actual, physical receipt of the Application is the starting date for

the 180-day deadline under Section 39 .2(e) of the Act

. 415 ILCS §5/39 .2(e) .

The County Board does not have the power to modify the date of receipt of the

Application under the Act. In the case of McLean County Disposal Company, Inc

. v. County of

McLean,

a county rejected an incomplete application, deeming same "filed" on the date the

amended, complete application was received by the county

. PCB 87-133, 1988 WL 160134, *3

(Illinois Pollution Control Board, January 21, 1988)

. The Board found that for purposes of the

180-day deadline in Section 39

.2 of the Act, "a county or municipality does not have the

authority to extend the 180-day deadline without a waiver by the applicant

. Section 39.2

establishes the exclusive procedures to be used by localities when reviewing siting applications

."

Id. at *4

. The Board based this ruling on the strict construction of Section 39

.2 of the Act :

Section 39.2

establishes the exclusive procedures to be used by

localities when reviewing siting applications

. That section, through

the 180- day deadline placed upon final action by a locality, shows

the legislature's intent to move the regional pollution control

facility siting process at a quick

pace. Such intent is also shown in

section 40.1,

which allows the Board only 120 days to take final

action on a siting appeal . The legislature, in providing that a site

may be deemed approved if either of those deadlines is missed,

reinforced its desire for quick

resolution of siting applications by

setting a somewhat harsh penalty for violation of the deadlines .

Given such a clear expression that time is of the essence, the Board

39

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cannot find that the county board impliedly has the power to

extend the 180-day deadline by determining when an application is

deemed filed . To do so would violate the language of the statute .

Id. (emphasis added) . The Board recognized and disregarded the county's claims of undue

prejudice :

The Board is aware that the finding that a locality may not

unilaterally extend the decision deadline could work hardship on

the locality in cases where an application is deficient and the

applicant refuses to waive the 180-day deadline . However, the

locality could solve such a potential problem by holding the

mandatory public hearing and following the other applicable

procedures of Section 39 .2, and subsequently denying site approval

on grounds of insufficient information .

Id

. The Board affirmed its decision on reconsideration of same, stating that "a unit of local

government has no authority to use local procedures to extend the statutory 180-day deadline for

decision

." 1988 WL 160250, *2 (March 10, 1988).°

The County Board has admitted that PDC delivered the Application and the filing fee to

the County Clerk on November 9, 2005 (Ex . 1, No. 73, 80; Ex

. 4, No. 73, 80), and has admitted

that the County Clerk actually received the Application and the filing fee on November 9, 2005

(Ex. 1, Nos

. 74, 81 ; Ex. 4, Nos . 74, 81)

. The Deputy County Clerk signed an acknowledgment

of same (Ex . 1, Nos . 68-72 ; Ex. 4, Nos . 68-72 ; Ex

. 2), and gave PDC a receipt for the

On appeal of the foregoing case, the Appellate Court made a finding of fact that "[t]he record reflects all

of the parties participated without specific objection in proceedings which were apparently premised on

the assumption that the application was first filed on March 17, 1987

."

Citizens Against the Randolph

Landfill, (CARL) v . Pollution Control Bd ., 178 IlI .App.3d

686, 696, 533 N .E.2d 401, 108, 127 III .Dec.

529, 536 (4 Dist. 1988)

. Therefore, the Appellate Court concluded that "[b]y

participating in public

hearings after the deadline for such hearings had passed on the basis of a January 22, 1987, filing date and

by filing a reply brief after the deadline for county board action had passed on the basis of a January 22,

1987, filing date, the disposal company waived its right to a decision by the county board on or before

that purported deadline ." Id

. The Appellate Court did not address the Board's conclusion that counties

cannot extend the 180-day deadline for decision through local "filing" procedures, instead finding that "if

the McLean County Disposal Company's application for landfill site approval was filed on January 22,

1987, the disposal company waived compliance by the County of McLean with the 180-day deadline for

action on the application ." Id

. at 697, 409, 537 .

40

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Application and the required filing fee (Ex . 1, Nos . 75-77 ; Ex. 4, Nos . 75-77 ; Ex. 3). Section

7

.5-41 of the Peoria County Code states, in pertinent part, that "the County Clerk shall not give a

receipt or other indication of filing until such time as it is determined that the Application

complies with the requirements of this resolution ." (Appx . A). Therefore, the County Board has

actually admitted that the controlling filing date in this case is November 9, 2005, pursuant to

Requests to Admit in this case and pursuant to its own ordinance

.

The County Board lacks the authority to extend the statutory 180-day deadline for

decision through local procedures

. Therefore, November 9, 2005, was "the date on which [the

County Board] received the request for site approval" under Section 39

.2(e) of the Act. The

180th day after November 9, 2005, was May 8, 2006

. PDC took no actions and participated in

no processes after May 8, 2006, other than the filing of a Petition to Review with the Board,

wherein PDC states that the Application was deemed approved pursuant to Section 39

.2(e) of the

Act

. Clearly, there is no argument for waiver in this case .

The transcript of the May 3, 2006 meeting of the Peoria County Board was not posted on

the County's website until May 12, 2006, four (4) days after the statutory deadline

. (Ex. 1, No .

47; Ex. 4, No .

47; see also Ex . 15, 31/22-32/23)

. On June 7, 2006, Brian Meginnes and Peoria

County Deputy Clerk Megan Fulara (Ex

. 16, 7/2-10) could not find a copy of the transcript of the

May 3, 2006 meeting in the County Clerk's office

. (Ex

. 17, ¶¶8-9, 14) . The hard copy of the

transcript was not tendered to PDC or made available to the public prior to this appeal

. (See

Ex.

17)

. Therefore, even if the posting of the transcript on the County's website constituted "filing"

of same, the transcript still was not filed until May 12, 2006, more than 180 days after the

County's receipt of the Application

. (The Record available to the public and PDC on June 7,

2006, also did not contain the "yellow sheets" referenced at the May 3, 2006 meeting, or the

41

---

majority of the documents with which the County Board has subsequently sought to

supplement

the Record pursuant to its Motion for Leave filed on November 6, 2006

. (Ex . 17, ¶¶IO-14)) .

Having been filed outside of the 180-day window from receipt of the Application, the

transcript

cannot constitute part of the "written decision" of the County Board

.5 Without the transcript,

there is no record whatsoever of the actions purportedly taken by the County Board

on May 3,

2006 .

Therefore, pursuant to Section 39 .2(e) of the Act, if the County

Board failed to take

"action" and to memorialize same properly on or before May 8, 2006, the Application is deemed

approved .

5 The transcript cannot and does not constitute minutes or official record of the May 3,

2006 meeting in

any case. See Illinois Attorney General Opinion, No

. 2000-004 and preceding discussion

.

42

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CONCLUSION

PDC acknowledges, in the interests of transparency, that in many cases in Court and

before the Pollution Control Board dealing with approvals based on failures to act within

statutory decision deadlines (both at the local siting authority and Board levels), automatic

approval has not been enforced because the party benefiting from the automatic approval played

a part in inviting or waiving the failures that caused decision deadlines to be missed

. See, e.g.,

Citizens Against the Randolph Landfill, (CARL) v . Pollution Control Bd.,

supra . In this case,

PDC never did anything

that can be even remotely construed as a waiver of or inducement to

error by the County Board . It is not up to PDC or this Board to speculate as to

why the County

Board failed to take final action within the statutory decision deadline

. It is, however, an

indisputable fact in this case that the County Board failed to take any final action whatsoever on

the Application, much less creating a written decision specifying reasons for same within the

statutory decision deadline

.

For all the foregoing reasons, the Motion for Summary Judgment pursuant to 415 ILCS

§5/39 .2(e) filed by PDC should be granted .

WHEREFORE, Petitioner, Peoria Disposal Company, prays that this Board issue

summary judgment in favor of Petitioner, Peoria Disposal Company, and award Petitioner,

Peoria Disposal Company, such other and further relief as is deemed appropriate under the

circumstances .

43

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George Mueller

GEORGE MUELLER, P

. C.

Attorney at Law

628 Columbus Street, Suite #204

Ottawa, Illinois 61350

(815) 431-1500 -Telephone

(815) 431-1501 -

Facsimile

906-1242

.d4

44

Respectfully submitted,

PEORIA DISPOSAL COMPANY

Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

Attorneys at Law

416 Main Street, Suite #1400

Peoria, IL 61602-1153

(309) 637-6000-Telephone

(309) 637-8514 - Facsimile

---

APPENDIX

Appendix A

: Excerpts from the Peoria County Code of Ordinances

Appendix B: Excerpts from the Peoria County Board Rules of Order

1