BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY

)

RECEIVED

Petitioner,

)

GZC

1 2006

STATE OF ILLINOIS

V .

C

QflO6-184ution

Contrd?glkttll

Appeal)

~

Board

PEORIA COUNTY BOARD,

)

Respondent.

)

MEMORANDUM OF FACTS AND LAW

IN SUPPORT OF RESPONSE TO MOTION

FOR PARTIAL SUMMARY JUDGMENT (415 ILCS §5/39 .2(e))

NOW COMES

Respondent, Peoria County Board, (hereinafter "County Board")

by and through its attorneys, and as and for its Memorandum in support of its Response

to Petitioner's Motion for Summary Judgment on 415 ILCS § 5/39

.2(e), states as follows :

INTRODUCTION

Peoria Disposal Company's

("PDC") Motion for Summary Judgment concerning

415 ILCS §5/39

.2(e) is merely an attempt to create confusion where none exists . After

an extensive and exhaustive public hearing where everyone, PDC and concerned citizens

alike, had a full and fair opportunity to present all of their evidence, their witnesses and

their arguments and comments, and after the thirty (30) day public comment period

following the hearings, the County Board met and voted overwhelmingly against PDC's

application .

There is no dispute that the May 3, 2006, County Board meeting at which the

final vote on PDC's application occurred, took place within the statutory 180 days

. The

vote to deny approval of the application was the "final action" required by the statute .

There also is no dispute that at the same May 3, 2006, meeting, the County Board

adopted detailed, written findings of fact regarding each of the nine (9) statutory criteria .

Those findings of fact are in the Record on this appeal and clearly satisfy the decision in

writing requirement of 39 .2(e)

. In addition, there is no dispute that a court reporter

1

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transcribed the May 3, 2006, County Board meeting, and a transcript of the meeting was

prepared, posted on the County website and included in the Peoria County Clerk's files

.

The transcript and the detailed, written findings of fact leave no doubt that the application

was denied, and that the denial took place within the 180 day deadline

. In other words,

PDC's motion is without merit and should be denied

.

STATEMENT OF

FACTS

Many of the facts associated with PDC's motion do not appear to be in dispute .

However, there do appear to be disputes regarding some of the facts and certain legal

consequences relating to the facts.

A.

Submission of the Application .

The County contests PDC's position that the application filing date was

November 9, 2006

. The County does not dispute the basic recitation of facts set forth in

this section of PDC's memorandum that it delivered the application to the County Clerk's

office on November 9, 2006

. However, as set forth in PDC's brief, the County Clerk did

not accept the application for filing until November 14, 2005

. At various times during

the application review proceedings, the County referred the filing date as November 14,

2005

. At no point during the proceedings before the County Board did PDC ever contest,

dispute or object to the County's reference to the filing date as November 14, 2005

. In

fact, throughout the proceedings before the County Board, PDC filed documents which

contained the caption : "Application deemed filed

: November 14, 2005 ." The failure to

contest, dispute or object to the County's use of the November 14, 2005, date as the date

of filing constitutes a waiver by PDC of its argument that the actual filing date was

November 9, 2005, or PDC should now be estopped from arguing the point

.

B.

April 6, 2006 Meeting.

PDC's motion spends approximately 10 pages reviewing portions of the

transcripts of the April 6, 2006, committee meeting

. While the discussion and analysis is

2

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interesting, the transcript of the April 6, 2006, meeting speaks for itself, and requires no

characterization by PDC

. To the extent PDC characterizes the transcripts, the County

objects to those characterizations .

One thing is clear and not subject to dispute

. The April 6, 2006, meeting was a

committee meeting, and not a meeting of the Peoria County Board

. PDC does not appear

to dispute this fact, and in facts states the same

. Any actions taken at the April 6, 2006,

committee meeting, at best, were recommendations to the County Board, were not

binding on the County Board, and as a result have no real significance to PDC's motion

.

Pursuant to state statute, the decision regarding the application had to be made by the

County Board, not a committee of the County Board

.

C.

Filings Subsequent to the April 6, 2006, Meeting

.

As set forth in the County's Reply relating to the Motion to Supplement the

Record, the proposed findings of fact were, in fact, made available to the public during

the course of the proceedings, although not in the colored paper versions which the

County Board members used

. Whether the colored paper version was made available to

PDC or the public is really irrelevant to the motion before the Board, as the County

Board did not take action on or adopt the colored paper versions discussed at the April 6 `h

committee meeting

. The County Board did, however, take action on and adopted the

findings of fact that were before it at the May 3, 2006, County Board meeting

. As set

forth in Peoria County Clerk, JoAnn Thomas' affidavit, attached hereto as Exhibit "1"

and incorporated herein, the Recommended Findings of Fact filed with the County Clerk

on April 27, 2006, were the findings of fact that the County Board Members had before

them at the May 3, 2006, County Board Meetings

. Whether those Recommended

Findings of fact accurately set forth what was discussed and/or decided for purposes of

the committee's recommendation is not important

. The record of the May 3, 2006,

County Board meeting makes clear the motion was for the Findings of Fact they had

before them at that time, and not some other version previously discussed or

recommended.

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D.

May 3, 2006 Meeting of the County Board

.

At the County Board meeting, the County Board took two (2) separate and

distinct actions

. First, it voted on a resolution to approve PDC's application . Before the

vote on that resolution, the Peoria County States Attorney's Office advised the County

Board, on the record, that:

"If you vote [the motion to approve] 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 ."

May 3, 2006, County Board Meeting Transcript, p . 17; C13715

. After receiving that

advice, a motion to approve the application with special conditions was made, voted on,

and failed . The motion failed by a vote of 12 against to 6 in favor . Pursuant to the advice

of counsel, the Board took no further action on that motion or resolution .

Despite PDC's claims and arguments to the contrary, all of the documents relating

to the May 3, 2006, County Board meeting were located in the Clerk's office and were

available for inspection by the public. See Affidavit of JoAnn Thomas' at paragraphs 14

and 15

. The County admits the documents were not kept with the other landfill related

documents

. However, there is no requirement in the statute or otherwise that requires the

County to maintain the record of documents in one specific place or location . Even if

there were such a requirement, the County Clerk's failure to maintain the records as such

was at worst inadvertent, and certainly caused no prejudice to any party to the

proceedings before the County Board, and did not hinder PDC's ability to articulate its

contentions in this appeal.

As cited in PDC's brief, Board Member Mayer at the May 3, 2006, County Board

meeting made a motion to adopt "the findings of fact as presented this evening ." May 3,

2006, County Board Meeting Transcript, p

. 42; C13722 . The County Clerk's affidavit

makes it clear the only "findings of fact" before the Board Members at the May 3, 2006,

County Board meeting were the Recommended Findings of Fact which had been filed

with the Clerk's office on April 27, 2006, and which were kept with the landfill

application related documents, and which are found at C 13627 through C 13640 .

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The findings of fact "presented" at the May 3, 2006, County Board meeting were

detailed and in writing

. Each criterion was addressed individually and in detail

. For

instance, the findings for Criterion 1 start off by stating, "The facility is not necessary to

accommodate the waste needs of the area it is intended to serve

." (C 13627) The findings

under Criterion 1 then go into detail as to why the Board found that criterion had not been

met

. Likewise, the findings for Criterion 2 start off by stating, "The facility is not so

designed, located and proposed to be operated that the public health, safety and welfare

will be protected

." (C13629) The findings under Criterion 2 then go into detail as to why

the Board found that criterions had not been met

. Each criterion is addressed in the same

fashion

. While the pages of the Findings of Fact which are in the Record on appeal are

out of order, they nonetheless are detailed and in writing

.

During the meeting, one change was made to the Findings of Fact which were

filed in the record on April 27, 2006, and that change was reflected in the one (1) page

contained in the Clerk's files and which was clearly set forth in the transcript of the May

3, 2006, County Board meeting

. See, Affidavit of JoArm Thomas, at paragraphs 12-13

.

D.

Documents in the Record after May 3, 2006

.

As set forth in the affidavit of JoAnn Thomas, the Peoria County Clerk, in lieu of

minutes of the meeting, the County Clerk utilized the services of a court reporter to

provide a transcript of the entire May 3, 2006, County Board meeting

. The transcript of

the May 3, 2006, meeting was included in the County Board records in the County

Clerk's office, and those documents were available for inspection by the public

. In

addition, the transcripts were posted on the Peoria County website for inspection and

copying by the public, including PDC, for no charge

.

PDC complains that there were no "minutes" of the meeting because the County

Clerk did not create some type of summary of the events at the May 3, 2006, County

Board meeting

. In other words, PDC wants to argue instead of using the exact transcript

of the County Board meeting, the County should have prepared and relied upon some

summary of the meeting

. Presumably, had the County Clerk produced summary minutes

of the meeting, PDC would be complaining that they were not accurate or complete,

similar to its arguments about the April 27, 2006, Recommended Findings of Fact

. In

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any event, in lieu of some type of summary of the May 3, 2006, Board meeting, the

County Clerk elected to have the meeting transcribed by a court reporter so there would

be no confusion or argument about what took place at the meeting

. There can be little

argument that an exact transcript of the meeting is better for the Board than a summary .

All of the documents filed with the Peoria County Clerk throughout the

application review process were made available to PDC and the public through the

County's website, starting with PDC's application and continuing on to the transcripts of

the May 3, 2006, County Board meeting at which the application was denied . The

proceedings before the Peoria County Board were perhaps the most open and accessible

of any siting applications proceedings in the state . The application filed with the County

Clerk, the transcripts of the public hearing along with the exhibits, handouts and

PowerPoint presentations presented at the public hearing, the filings by counsel for the

parties, the factual submittals of the parties after the public hearing, the transcripts of the

public hearings, the Peoria County Staff Report and the Supplemental Staff report, the

transcripts of the April 3, 2006, reconvened meeting, and the April 6, 2006, committee

meeting, and all of the letters and e-mails received by the County Clerk as public

comment prior to the cutoff 30 days after the close of the public hearing, were posted to

the County's website and available to everyone, PDC included, on-line and at no charge .

The availability on-line no doubt facilitated all parties in keep appraised of the

filings and the course of the proceedings. It was Peoria County's intent to provide the

most open, fair, and transparent siting application proceedings ever conducted, and the

County believes it accomplished that goal

.

ARGUMENT

A.

PDC's Application Was Denied Within the 180-Day Deadline .

PDC first argues the County Board did not take "final action" on its application

because, in PDC's words, the County Board did not "affirmatively deny the Application ."

PDC admits that the motion for approval was voted on and failed to pass on a vote of

twelve (12) members voting against the motion and only six (6) in favor of the motion .

However, PDC claims the County Board was somehow required, after already having

voted against approval of the application, to pass another motion specifically denying the

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application

. PDC's claims are contrary to the advice of the Peoria County States

Attorney's office on the record at the May 3,

2006, County Board meeting

. The County

Board admits that pursuant to the advice of counsel, after first overwhelmingly denying

the motion to approve the application, it took no subsequent motion to then deny the

application, and therefore no vote on such a motion was taken

. However, the County

Board contends that no such motion and vote was necessary

.

The cases cited by PDC do not support its position that an affirmative vote to

deny the application was required. In

Hoesman, et al . v. City Council of the City of

Urbana, Illinois, et al. PCB 84-162, 1985 WL 21156,

the first case PDC cites for its

argument, the issue related to the Pollution Control Board's rule requiring an affirmative

vote of at least four (4)

members in order for the Board to take action. In that case, two

(2)

motions were offered

. The first motion was to reverse the determination of the City

Council

. That motion failed to garner the necessary four (4)

votes and by a vote of 2 to 3 .

The second motion to uphold the City Council's decision also failed to receive the

necessary four (4)

votes, but this time by a vote of 3 to 2.

As a result of the failure of any

motion to garner at least the four (4)

required votes under the Board's rules, there was no

formal action taken by the Board within the statutorily mandated deadline

.

Two (2) points make the

Hoesman

case inapplicable to the facts and

circumstances in the case before the Board

. First, the Hoesman case dealt with different

rules and a different statutory provision than are implicated by this case

. Hoesman dealt

only with the Pollution Control Board's internal rules which require an affirmative vote

of four (4) members

. Without four (4) members voting for a motion, the Board was

unable to take any action

. No such rule is applicable to the Peoria County Board

. In

addition, the Hoesman

case dealt with a different statutory "final action" deadline

(i .e.,

the Board's own deadline, not the siting authority's deadline)

. Finally, it must be noted

that in the instant case, the Peoria County Board had a full quorum at the meeting, and an

overwhelming majority of the County Board voted against the application

.

The one thing that can be taken from Hoesman

is that in order to determine

whether a "final action" was taken by the appropriate authority, the Board or the courts

look to the rules of procedure for that specific decision making body

. In the instant case,

the authority on the County Board's rules and procedures is the Peoria County States

7

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Attorney's office

. The States Attorney's authority concerning the procedures for the

County Board derives from the 2005-2006 Rules of Order of the Peoria County Board,

Art. III, Sec

. 4, which provides that the State's Attorney or an Assistant State's Attorney

selected by the State's Attorney is the Parliamentarian of the County Board

. See, Exhibit

"2" attached hereto and incorporated herein

. That section further provides that the

Parliamentarian "shall render opinion and advise on questions of parliamentary law and

procedures applicable to matters arising before the Board ." Acting as Parliamentarian,

Chief Civil Assistant State's Attorney William Atkins specifically stated on the record

that if the County Board voted against the motion to approve the application, that would

be considered a denial, and there would be no need to make a subsequent motion to deny

and to vote on such a motion

.

In the second case cited by PDC, Smith et al

. v. City of Champaign, et al ., PCB

92-55, 1992 WL 207560, the issue, once again, revolved around the decision maker's

rules and procedures

. In that case, the City Council's rules of order required an

affirmative vote of no less than five (5) members in order for the council to take action .

At the council meeting at which the application was to be acted upon, the vote was one

(1) vote in favor and two (2) votes against, and six (6) members abstained

. As a result of

the six (6) abstentions, the Mayor declared a temporary loss of quorum . Pursuant to the

City Council's rules, a temporary lack of quorum resulted in postponement of the mater

under consideration until the next regular meeting

. The next meeting was after the 180

day deadline had expired

. Under the City Council's rules, due to a lack of quorum, there

was no "action" on the application within the statutorily mandated timeframe, and as a

result, there could be no "final action"

.

Once again, the case does not stand for the proposition that an affirmative vote to

deny is required by the statute

. The case merely stands for the proposition that the City

Council, pursuant to its own rules, failed to take any action, let alone "final action",

because it lacked a quorum at the meeting at which the application was voted upon

.

There is no dispute that a quorum of the Peoria County Board was present and

voted at the May 3, 2006, meeting

. In fact, every member of the County Board, all

eighteen (18), was present and all voted on the motion, and the motion overwhelmingly

failed

. The instant case is not one of the lack of a quorum or the lack of a statutorily

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required number of votes

. The requisite quorum was present and the requisite number of

members voted against the application

. There was clearly a final action by the County

Board at the May 3, 2006, meeting

.

The Board has previously addressed the issue raised by PDC regarding whether a

vote to deny is required, and concluded, in a concurring opinion, that a vote denying a

motion to approve is equivalent to a vote approving denial

.

See,

Guerrattaz, et al . v.

Jasper County, et al .,

PCB 8-76. In the Guerrattaz case, the Jasper County Board met to

consider their action

. At that meeting, a motion to deny the application was made and

seconded, and the vote resulted in a tie

. At a subsequent County Board meeting, the

application was again considered, but the county board elected not to vote again, and let

the first vote stand

. On appeal, one of the parties argued that the vote was a "final action"

under the statute, and it should be deemed a denial . The Board resolved the matter on a

jurisdictional issue, and therefore did not address the "final action" issue raised during the

appeal

. However, a concurring opinion was submitted addressing the "final action"

issue

. While the analysis is clearly and admittedly dicta, is informative nonetheless . The

two (2) Board members who authored the concurring opinion thought it was appropriate

to comment on the "final action" issue so as to provide guidance for future similar

situations .

The opinion states, in part, as follows :

"It is clear that the Jasper County Board's action on April 28, and May 13,

(1) were within the statutory deadlines for action, (2) concluded the County

Board's adjudicative process such that an appeal would not be disruptive, and (3)

that legal consequences would result

. Therefore, the County Board took "final

action" within the statutorily mandated timeframe and the landfill approval does

not issue by operation of law

.

Simply because the County Board took final action, does not mean the

County Board reached a decision

."

P . 4 of concurring opinion

. The opinion went on to state as follows:

" . . .

the landfill applicant has the burden of convincing a statutorily determined

majority of the county board members that its application should be granted

.

Where, as a result of a timely and proper vote, the applicant fails to convince a

statutorily established majority of the county board that it is entitled to approval,

its application is denied

. It would make no difference whether the motion before

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the county board was a motion to grant approval or a motion to deny approval .

The statute places the burden of proof upon the applicant and the county board

cannot change that statutorily established burden no matter how the "motion" is

phrased."

p

. 7 of concurring opinion

. Finally, the opinion reads, in part, as follows :

"In summary, the [sic] we believe that a timely and proper vote on a Section 39 .2

landfill approval application, that does not secure a statutorily established

majority, constitutes a denial of the application

."

p. 10 of concurring opinion

. The concurring opinion is well reasoned, and is not in

conflict with the opinions cited by PDC or any other decisions of the Board, and should

be followed in this case .

Admittedly, in some cases, there may be some confusion whether a vote by a

majority of a county board against a motion to approve a siting application was intended

as a denial

. In the instant case, there can be no confusion . As set forth in PDC's brief,

the Peoria County Board, before it voted, was advised by counsel, on the record at the

public meeting, that a "no" vote on the motion to approve the application constituted a

denial of the application, and no

further or subsequent motion to deny was necessary . At

the May 3, 2006, County Board meeting, Chief Civil Assistant States Attorney, William

Atkins stated as follows

:

. . we have two items on the agenda tonight

. One of them is a motion for

approval of the PDC Application

. The reason that 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 .

Because of the fact that the findings of fact that have been recommended

to you support a denial, if you vote down that motion, the motion to approve, then

in your second motion you could simply accept the findings of fact that have been

presented to you by the Site Hearing Committee,

. . . .

So if there is a denial, you do not need to amend the findings of fact for

the most part. . . .

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May 3, 2006, Peoria County Board Meeting transcript at p . 16-17, C13715 .

The advice of counsel was clear

. A failure of the motion to approve the

application was in effect a denial of the application . Therefore, it is clear that the County

Board members understood and intended their "no" vote to be a denial of PDC's

application. Counsel's statement that "the only action that is being sought tonight is on

the part of PDC" is actually a referenced to the fact that the Board could not consider a

motion to deny because no party, and no committee, had brought forward a motion to

deny the application . At the meeting, the application being reviewed was a request by

PDC for approval of the proposed expansion of the landfill, not a request for denial

.

Pursuant to state law, the burden was on PDC to demonstrate to the County Board that it

was entitled approval . To make the burden of persuasion clear, the motion needed to be

addressed by a motion to approve. The failure by PDC to meet the burden of persuasion

resulted in denial of the application due to the failure of the motion to approve .

If the Board were to accept PDC's contention that after vote against the motion to

approve the County Board should have then voted on a motion to deny, such a ruling

would open a whole series of issues . Would siting authorities have to take a roll call for

all those absent, after first having taken one for those present? Would the siting authority

have to take votes not to find facts after having voted on findings of fact? After having

voted affirmatively to deny an application, would the siting authority have to then bring a

motion to approve the application and vote that down? At what point would a local siting

authority have to stop? One clear cut vote should be enough .

Finally, as a result of the advice of counsel, the County Board understood there

was no need for any further motion or motions after it had denied the motion to approve

the application. Therefore, there can be no confusion as to what the County Board

intended as a result of its vote on the motion to approve

. Although PDC apparently does

not agree with the advice of the Peoria County States Attorney's office, that does not

change what the Peoria County Board thought it was doing or what it intended to do at

the May 3, 2006, meeting. Even if, with hindsight, the advice is found to be incorrect,

the intent of the County Board is clear, and as a result, the County Board's action was

final for purposes of the statute .

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Finally, this is not a case where the purpose of the 180 day deadline is implicated

.

The Board set forth the purpose of the 180 day "final action" deadline in

Casner

Township,

PCB 84-175 & PCB 84-176 Consolidated, Order, January 10, 1985, pp . 6-7,

wherein in it stated :

"Without a deadline, the local body could frustrate the entire permitting

process by simply not acting, and the legislative history shows that the General

Assembly believed that many local bodies would be under pressure to do just that .

The "deemed approved" mechanism functions to move the case along without

penalizing any of the parties to the process . . . ."

Casner Township Order at pp . 6-7 . In the instant case, there can be no dispute that the

County Board took action

. There is no indication the County Board was attempting to

frustrate the permitting process by not acting. In fact, the Record clearly demonstrates an

incredible amount of time, energy and action on behalf of the County and the County

Board to directly address PDC's application . The County Board took a vote on the

application, and everybody understood that vote to be a denial

.

II.

The Decision Was In Writing.

PDC's motion argues that the County Board's decision must be in writing within

the 180-day statutorily mandated deadline . In order to make this argument, PDC

attempts to combine that statutory language relating to the deadline with administrative

rules relating to appeals . Not surprisingly, PDC is unable to cite any case law to support

its position

. In fact, PDC's arguments under section II of its brief are contrary to the

clear language of the statute, as well as controlling Board case law . Even so, the County

Board's decision was rendered in writing within the statutorily mandated 180-day

deadline when it adopted the detailed, written findings of fact at the May 3, 2006, County

Board meeting .

The governing statutory provision is cited in PDC's brief (with extraneous

emphasis), and will not be repeated

. When reviewing the statute, it is important to note

that the legislature used two (2) different and distinct phrases or terms in Section 39 .2(e) .

In the first sentence of the section references "decisions" of the county board, and

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requires that they be in writing

. The last sentence, and the only one that imposes the 180-

day deadline, references "final action" of the county board

. The use of two (2) separate

terms suggests or implies that the legislature made and intended a distinction between a

"final action," and a "decision

." See, Guerretaz concurring opinion at p . 5 . To read

Section 39

.2(e) as proposed by PDC would effectively eliminate the first two sentences

of that section .

The distinction between "final action" and "decision" was made very clear by the

Board in its Opinion and Order Clean Quality Resources, Inc

. v . Marion County Board,

PCB 91-72 dated August 26, 1991 . In Clean Quality Resources,

the Marion County

Board voted to deny the siting application two (2) days before the expiration of the 180

day statutory deadline

. Then, sixteen days after the deadline for "final action" expired,

the county board issued a written "Notice of Decision"

. The applicant appealed the

denial contending the application was approved by operation of law because the county

board did not issue its decision in written form within the statutory 180-day deadline .

The Board rejected the applicant's argument that a written decision had to be rendered

within the 180-day statutorily mandated deadline for a "final action

." The Board's

Opinion and Order clearly articulated the distinction between the 180-day deadline for

final action and the requirement that the decision be in writing when it stated :

"The Board does not agree with the interpretation of Section 39

.2(e)

proposed by CQR

. CQR has combined two separate and distinct phrases which

are used in this section

; "decision in writing" and "final action" . The distinction

denotes two related but different functions . The separation is further

deemphasized by the placement of these functions into different sentences

. Only

a "final action" is required to fulfill the statutory time limit

. The language of

Section 39

.2(e) allows a county board 180 days after the filing of an application to

consider the completeness of the application, conduct the necessary hearings and

to consider the merits and evidence of the record

. Final action, whether approval,

disapproval or inaction, must be taken within that 180-day period and can be

made in the final hour of that time period . The Act does not require the

circulation of the written decision of the county board specifying the reasons for

the decision be accomplished within the 180 days ."

Clean Quality Resources, at p

. 8 of Opinion and Order. The Board's decision is Clean

Quality Resources

is consistent with the Illinois Supreme Court's opinion in Waste

13

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Management of Illinois v

. Illinois Pollution Control Board

(1991 as modified on Denial

of Rehearing) 145 I11 .2d 345, 585 NE.2d 606, 165 II1

.Dec. 875 ("Waste Management") .

In the Waste Management

case, the Board issued an order within the statutorily

mandated time frame for a Board decision on an appeal, but issued its written opinion

after the close of the time frame

. The applicant took the position that the failure to issue

the written opinion within the statutorily mandated time period resulted in the application

being deemed approved because there was no "final action

." The Illinois Supreme Court

rejected that position finding the use of the term "final action" and "written opinion"

were two (2) separate and distinct items

. The Supreme Court notes that there may be a

"final action" as contemplated by the legislature that is not final and appealable for

purposes of review .

Waste Management, 145 I11 .2d at 352.

PDC's reference to the administrative rule relating to the filing of an appeal of the

decision on the siting application is similar to, if not identical to, the argument raised in

the Waste Management

case. The Supreme Court stated in that case

:

"Although we find that the Board's . . . order was "final action" as

contemplated by the legislature, we do not necessarily conclude that it was final

and appealable for purposes of review

. However, a conclusion that the order was

not final and appealable would not invalidate the action taken by the Board ."

Waste Management

at 145 I11 .2d at 352

. Applying that analysis to the instant case, if the

Peoria County Board's decision at its May 3, 2006, meeting was not supported and/or

accompanied by detailed, written findings of fact (which it was), the decision would still

have been "final action

." As stated by the Illinois Supreme Court, the mere fact an

administrative agency's decision is not in writing does not render it void

. Id. Rather, it

might not have been appealable until the decision was rendered in writing

. In which

case, the proper remedy would be to remand the matter back to the County Board to

make proper findings so the Board could properly review the action

. In this case, remand

is unnecessary since the Board has before it the detailed, written findings of fact, as well

as the transcript of the May 3, 2006, County Board meeting

. Therefore, remand would

serve no purpose

.

14

---

The purpose of the requirement that a decision be in writing is so that a party

unhappy with the "final action" of the County Board knows why the County Board ruled

against it, and is thereby able to effectively formulate its appeal

. It is therefore logical for

the administrative rule to require the notice of appeal to be filed within 35 days after the

written decision

. As mentioned above, and highlighted in the

Waste Management case, a

final action which has not yet been rendered in writing, might not be appealable, and

might not start the 35 day period for filing an appeal

. However, that issue is not

implicated in this case.

As in the Clean Quality Resources

case and the Waste Management

case, there is

no dispute the Peoria County Board voted on the motion at the May 3, 2006, County

Board meeting within the 180-day statutory deadline

. Likewise, there is little or no

question the Peoria County Board voted against the application

. PDC and the public

clearly understood PDC's application was denied

. Therefore, there was "final action" on

the application within the statutorily mandated 180-day deadline

.

Furthermore, at the May 3, 2006, County Board meeting at which the vote was

taken, the County Board approved detailed, written Recommended Findings of Fact

which had previously been filed in the record with the County Clerk

. The detailed,

written findings of fact addressed each one of the nine (9) statutory criteria, and clearly

indicated whether each individual criterion had been met

. The detailed, written findings

of fact communicated the reasoning for the Peoria County Board's decision

. To further

demonstrate the County Board's diligence, within days after the May 3, 2006, County

Board meeting, the actual transcripts of the County Board meeting were posted on the

County's website for PDC and the entire public to view, download, copy, etc

. Therefore,

the instant case is even more compelling than the arguments articulated by

Clean Quality

Resources in its appeal

.

Part of PDC's argument that the decision was not in writing appears to be based

upon or related to its contention that the items that were in writing were not located in the

landfill application related files

. As set forth in the County's Motion to Supplement

Record on Appeal, and in its Reply relating to that motion, as well as set forth in the

affidavit of Peoria County Clerk JoAnn Thomas, attached hereto, and in the County's

Responses to Requests to Admit, the April 6, 2006, committee meeting documents and

15

---

the May 3, 2006, County Board meeting documents were located in the County Clerk's

office

. However, the documents were kept with the County Board files, and not also in

the boxes of documents relating to the landfill expansion application

. While the

documents were not all kept in one place within the Clerk's office, all the documents

were located in the Clerk's office and were available for inspection and copying by the

public, including PDC

. Furthermore, as PDC readily admits in its motion, the transcript

of the May 3, 2006, County Board meeting was posted to the County's website, and was

therefore available to the public, including PDC, for viewing, downloading, printing, and

copying, at no charge .

There is no requirement in the statute, or elsewhere, that all the documents be kept

in one repository or location

. Even if there was such a requirement, the failure to do so

by the County Clerk was lessened by the fact that the documents were made available on

the County's website

. Furthermore, the documents were all kept in the same office in the

same building

. Any error in the physical location of the documents within the Clerk's

office was inadvertent and harmless

. As stated by the Second District Court of Appeals

in

McHenry County Landfill, Inc . v. IEPA:

" . . .

the supreme court has recognized the legislature's intent "to place decisions

regarding the sites for landfills with local authorities . [citation omitted] . We conclude

that the legislature could not have intended the . . . inadvertent and apparently harmless

error to result in a deemed site approval

. Such a rule would both eliminate any

consideration of the site's suitability for a landfill and deprive local authorities of the

power given them by the statute ."

McHenry County Landfill, Inc. v

. IEPA, et al . (2nd Dist., 1987), 154 I11.App

.3d 89, 96-97,

506 N.E.2d

372, 106 I11 .Dec. 665

. In that case, the Board failed to give the 21 day notice

required by statute

. Here, the error, if any, is even less significant as there is no statutory

requirement that the documents be kept in one specific location .

III.

The Decision in Writing was Timely .

In the third section of PDC's brief, it contends the application should be deemed

approved because the written decision was not rendered within the 180-day statutorily

16

---

mandated deadline

. For all the reasons articulate by the County in section II of this brief,

that argument should fail

. In the alternative, PDC should be deemed to have either

waived the argument concerning the filing date, or be deemed to have amended its

application, and the County Board had an additional 90 days to render its decision

.

The County does not dispute that PDC presented its application on November 9,

2005

. However, as set forth in PDC's brief, the local ordinance requires a review of the

application for completeness before the County Clerk may accept the application for

filing

. The application was accepted for filing on November 14, 2005

.

The County Board acknowledges the Board's decision in

McLean County

Disposal Company, Inc . v

. County of McLean,

PC 87-133, which is cited in PDC's brief

However, the County contends PDC should be deemed to have waived the 180 day

decision deadline because it acquiesced to the filing date of November 14, 2005

.

Throughout the proceedings before the County Board, PDC filed documents stating

"Application deemed filed

: November 14, 2005 ." See,e.g.,

PDC's Response to

Committee of the Whole Vote (C 13461)

. At no time during the proceedings before the

County Board did PDC ever object to the filing date of November 14, 2005

. At no time

during the proceedings before the County Board did PDC ever contend that the actual

filing date was November 9, 2005

. It was not until well after the final vote on the

application by the County Board did PDC ever contend the actual filing date, and as part

of this appeal, was some date other than November 14, 2005

. Even so, as demonstrated

above, the County Board clearly took final action within the 180-day statutorily

mandated deadline, regardless of which date is utilized

.

If the Board somehow rules the County failed to take final action within the 180

day deadline based upon PDC's arguments about the transcript of the hearing being

posted on the web-site after the deadline, the County argues, in the alternative, argues

that PDC's proposed "restrictions" be deemed an amendment of the application thereby

giving the County Board' an additional period of 90 days to take its final action

.

Section 39

.2(e), provides in relevant part, as follows

:

"At any time prior to completion by the applicant of the presentation of the

applicant's factual evidence and an opportunity for cross-questioning by the

county board . .

. and any participants, the applicant may file not more than one

17

---

amended application

. . . ;

in which case the time limitation for final action set forth

in this subsection (e) shall be extended for an additional period of 90 days

."

On the first day of the public hearing, before PDC presented its witnesses, Brian

Meginnes, an attorney representing PDC at the Public Hearing and in these proceedings,

proposed, on the record, certain restrictions or conditions be placed on the approval of the

application

. The proposals including the following

:

•

Prohibition on sale of the landfill without the County Board's consent

;

•

No construction of a rail spur to the facility ;

•

Implementation of ambient air monitoring

;

•

No further expansions

;

•

Elimination of the surface impoundment

;

•

Secondary containment in leachate collection sumps ; and

•

Guarantee of capacity for Peoria County waste for 15 years

.

See, February 21, 2006, Public Hearing transcript at pages 25 through 29 (C7273-

C7274)

. None of the proposed "restrictions" or "conditions" were contained in PDC's

application

. Many, if not all of them, relate to or are details of the proposed facility and

how it will be designed and/or operated, and should be considered amendments to the

application

. The "restrictions" or "conditions" were presented by PDC to the County

Board, in writing, prior to the close of PDC's presentation

. Thus, the amendment was

timely under Section 39.2(e)

. Pursuant to the terms of Section 39

.2(e), the County Board

was given an additional ninety (90) days to take "final action" before the application

would be deemed approved

. Assuming PDC's claim that the filing date was November

9, 2005, and that the original 180 day period would expire on May 8, 2006, the

amendment of the application extends the "final action" deadline 90 days to August 6,

2006

. As previously demonstrated in this Response, all of the documentation of the

County Board's decision was in place well before August 6, 2006

.

CONCLUSION

The Peoria County Board took "final action" at the May 3, 2006, when it voted

overwhelmingly to deny the motion to approve PDC's application for local siting

18

---

approval

. The vote took place within the 180-day deadline regardless of whether the

filing date was November 9, 2005, or November 14, 2005

. The 180-day statutorily

mandated deadline relates only to "final action ." There is no requirement that a written

decision be made within the 180 days

.

Even though a written decision was not required within the statutorily mandated

180-day deadline, at that same May 3, 2006, County Board meeting at which the "final

action" was taken, the Peoria County Board also adopted detailed, written findings of fact

which Peoria County Clerk kept in the County Board files

. The detailed, written findings

of fact adopted by the Peoria County Board at the May 3, 2006, meeting were the very

ones previously filed with the County Clerk on April 27, 2006, with one change which

was made during the May 3, 2006, meeting . The only change to the Recommended

Findings of Fact was correctly reflected in the single page of findings of fact which the

County Clerk kept in her County Board files. The detailed, written findings of fact alone

constitute a writing which specified the reasons for the Board's decision, and therefore

satisfied the statutory requirement

. Nonetheless, in addition to the written findings of

fact, a court reported created a written transcript of the May 3, 2006, County Board

meeting

. At no time has PDC contested or complained that the transcript was or is

inaccurate . In fact, the transcript provides an exact record of the May 3, 2006, County

Board meeting, including the vote of each Board Member and the one change to the

previously filed April 27, 2006, Recommended Findings of Fact . The transcript was, and

continues to be, kept in the Peoria County Clerk's office, and was posted on the Peoria

County website for everyone, PDC included, to see, download and copy

.

In other words, the Peoria County Board did take "final action" within the

statutorily mandated 180-day deadline, and the Board's decision was in writing and

specified the reasons for the Board's decision

.

WHEREFORE, Respondent, Peoria County Board, respectfully prays that the

19

---

Board deny Petitioner's motion for partial summary judgment

.

Black, Black & Brown

Attorneys at Law

101 S . Main Street

P .O. Box 381

Morton, IL 61550

Phone

: (309) 266-9680

Fax: (309) 266-8301

Respectfully submitted,

PEORIA COUNTY BOARD

David A. Brown

One of its attorneys

20

---

EXHIBIT "1"

AFFIDAVIT OF JOANN THOMAS

EXHIBIT "1"

---

AFFIDAVIT OF JOANN THOMAS

STATE OF ILLINOIS

)

ss.

COUNTY OF PEORIA

)

I, JoAnn Thomas, having been first duly sworn upon oath, deposes and states as

follows :

1 .

My name is JoAnn Thomas

. I presently am the Peoria County Clerk, and

was so at the time of the May 3, 2006, County Board meeting at which the Peoria

Disposal Company application for site location approval was denied .

2.

As part of my duties as Peoria County Clerk, I personally attended the

May 3, 2006, County Board meeting at which PDC's application was denied

.

3 .

As part of my duties as Peoria County Clerk, I am/was responsible for

maintaining County Board files and records

.

4.

In lieu of creating minutes of the May 3, 2006, County Board meeting, I

elected to use the court reporter transcripts of the meeting as the minutes and official

record of the meeting since the transcripts represent the exact record of what took place,

while any minutes would simply be a summary of what took place

.

5 .

During the May 3, 2006, County Board meeting, County Board Members

had in front of them copies of the "Recommended Findings of Fact" which were filed on

April 27, 2006, with the application related records with my office, a copy of the

"Recommended Findings of Fact" are attached hereto as exhibit "A" to this affidavit

.

6.

No other findings of fact or other documents purporting to be findings of

fact where before any Members of the County Board at the time they voted during the

May 3, 2006, County Board meeting

.

EXHIBIT "1"

---

7.

The Recommended Findings of Fact attached hereto as exhibit "A" are the

findings of fact referred to by Member Mayer when he made his motion "to adopt the

findings of fact as presented this evening" during the May 3, 2006, County Board

meeting, which quote is found at page 42, line 12 through 15 of the transcript of the May

3, 2006, County Board meeting

.

8.

During the May 3, 2006, County Board meeting, Karen Raithel, the Peoria

County Recycling and Conservation Resource director, had a computer set up behind the

County Board table so that she could modify the Recommended Findings of Fact in the

event the Board voted to amend, modify or delete any of the findings contained in the

Recommended Findings of Fact during the course of the meeting .

9.

At the May 3, 2006, County Board meeting, there was one change to the

Recommended Findings of Fact which change was proposed by Member Mayer as part

of his motion to approve the Recommended Findings of Fact.

10.

The one change to the Recommended Findings of Fact was to include the

following statement under criterion ii :

"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."

11 .

County Board Member Mayer's motion to approve the Recommended

Findings of Fact with the single addition of the above referenced finding under criterion ii

was passed by the County Board at the May 3, 2006, meeting by a vote of 12 in favor of

the motion and 6 against the motion .

12 .

After the vote on the Recommended Findings of Fact at the May 3, 2006,

County Board meeting but while we were still at the site of the meeting, Karen Raithel

EXHIBIT "1"

---

added the additional finding to criterion ii pursuant to approved motion, printed out the

last page of the criterion ii findings, and presented the single page to me for my review

.

13.

I reviewed the single printed page showing the added finding of fact under

criterion ii, confirmed that it was consistent with the motion made by Board Member

Mayer, and included it in my County Board file for the May 3, 2006, meeting as part of

the record of that meeting

. A copy of the single page is attached hereto as Exhibit "B" to

this affidavit.

14.

Since the date of the May 3, 2006, County Board meeting, the

Recommended Findings of Fact, the single page containing the additional finding under

criterion ii, as well as the agenda, briefings and other files relating to the May 3, 2006,

County Board meeting have been kept and maintained in the County Board files in the

Peoria County Clerk's Office .

15

.

The County Board file relating to the May 3, 2006, County Board meeting

is available for inspection by the public, and has been since the date of the May 3, 2006,

County Board meeting .

16

.

I am an adult and if called upon to testify in this matter, I could

competently testify to the facts stated herein .

FURTHER AFFIANT SAYETH NOT .

Subscrkbed and sworn to before me

thisthisc -day of November, 2006

.

Thomas, Peoria County Clerk

I

'OFFICIAL SEAL'

MEGAN FULARA

L

MYNOTARY

COMMISSION

PUBLIC,

EXPIRESSTATE

OF

0&02-2009ILLINOIS

EXHIBIT "1"

---

Criterion

I

The facility is not necessary to accommodate the waste needs of the area it is

intended to serve

.

Applicant failed to use the most recent U

.S. EPA data on hazardous waste

generation ;

•

U.S

. EPA data from 2003, reported in 2005, shows a significant decline in

hazardous waste generation rates in the hazardous waste service area

;

•

During cross-examination by County staff, applicant's expert Smith testified that

there was a reduction in hazardous waste generated in the service area from

2001 to 2003 ;

•

Applicant's expert Smith testified that there are a decreasing number of

hazardous waste landfills in both the service area and the nation

;

•

Applicant's employee and expert Ron Edwards is quoted in a newspaper article,

included in the public record, as saying that applicant's tipping fees have

decreased from an average of $100 per ton to an average of $80 to $85 per ton ;

While not subject to cross-examination, applicant's statement about price is

deemed reliable as a statement against interest

;

•

A decreasing price during a time period when the number of hazardous waste

landfills is decreasing suggests decreasing demand for disposal capacity

;

•

On cross-examination applicant's expert Dr

. David Daniel testified that over the

last two decades there has been a gradual reduction in the amount of hazardous

waste generated

;

Daniel was qualified by applicant as a national expert on hazardous waste and

landfill design and technology

;

In her report applicant's expert Smith assumed a constant rate of hazardous

waste generation in the service area from 2001 until 2029

;

However, the evidence provided by U

.S

. EPA data, applicant's public statement

about prices and the testimony of the applicant's own experts indicates a

reduction in the amount of hazardous waste generated in the service area

;

•

An annual reduction in hazardous waste generation in the service area of

between one and two percent, and therefore consistent with the U .S . EPA data,

C 13) 627

FILED

RECOMMENDED FINDINGS OF

FACT

APR 2 7 2006

JOANN THOMAS

PEORIA COUNTY CLERK

EXHIBIT "1-A"

---

C 13`628

ILLINOIS ENVIRONMENTAL PROTECTION ACT 415 ILCS 5/39 .2

LOCAL SITING APPROVAL CRITERIA

(i)

(ii) The facility is designed, located and proposed to be operated such that public

health, safety and welfare will be protected

;

(iii)

The facility is located so as to minimize incompatibility with the character of

the surrounding area and to minimize the effect on the value of the surrounding

property;

(iv)

The facility is located outside the boundary of the 100 year flood plain or the

site is flood-proofed ;

(v) The plan of operations for the facility is designed to minimize the danger to the

surrounding area from fire, spills or other operational accidents ;

The traffic patterns to or from the facility are designed to minimize the impact

on existing traffic flows

;

(vii) If the facility will be treating, storing or disposing of hazardous waste, an

emergency response plan exists for the facility which includes notification,

containment and evacuation procedures to be used in case of an accidental

release;

(viii) The facility is consistent with the County Solid Waste Management plan ; and

(ix)

If the facility will be located within a regulated recharge area, any applicable

requirements specified by the Board for such areas have been met.

The County Board may also consider the previous operating experience and past record

of convictions or admissions of violations of the applicant and any subsidiary or parent

corporation in the field of solid waste management when considering criteria (ii) and (v)

under the Section. The County Board may also impose conditions on its siting approval .

The facility is necessary to accommodate the waste needs of the area it is

intended to serve;

FILED

APR 2 7 2006

PEORIA

JOANN

COUNTY

THOMAS

CLEF'

EXHIBIT "I-A"

---

r~~ yjl

C

13629

APR 2 7 2006

Criterion 2

PEORIANCOUy

s

ctE..r

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

health, safety and welfare will be protected

.

•

There is evidence that the existing landfill may already be leaking into the

aquifer,

•

If the existing landfill is already leaking, the facility and the proposed facility

which relies upon the existing liners and leachate collection systems is not

designed to be protective of the public health, safety and welfare ;

•

The liner systems presently in use at the facility and proposed to be used in the

vertical expansion, by the applicant's own experts' testimony, will fail at some

time in the future;

•

When those liners fail, leachate will begin migrating through the site, and will

eventually reach the groundwater under the site

;

The groundwater aquifer located under the site is, by the applicant's own

experts' testimony, hydraulically connected to the Sankoty aquifer which is the

primary drinking water aquifer for the area

;

If the drinking water wells for the area are contaminated, the costs of replacing

the water supply will be enormous

;

•

The risk of contaminating of the area's drinking water is not worth the short

term economic benefits of allowing the expansion of the landfill

;

•

The old areas of the site are not constructed to modem regulatory standards and

present unreasonable risks to the public

;

•

The location of a hazardous waste disposal site over the aquifer is against the

stated policy of the Peoria County Board

;

•

The design of trench C-1 is inferior to present "state-of-the-art" technology in

the waste field, and allowing the Applicant to remove the existing cover from

that trench presents an unreasonable

risk to the public and the aquifer under the

site;

•

The testimony

. of opponents' expert, Charles Norris, was that fissures in the

clayey till, weathering of the till, and continuous sand seams all contribute to the

rapid transport of liquids through the glacial till underlying the site, and will,

and have, resulted in leachate releases and other contaminants migrating into the

groundwater from the glacial till ;

EXHIBIT "1-A"

---

C

13630

would reduce the capacity shortfall applicant's expert Smith estimated in her

report for hazardous waste by hundreds of thousands or even millions of tons

;

In estimating disposal capacity applicant's expert Smith assumed that hazardous

waste landfills outside the service area would not utilize a greater percentage of

their capacity for hazardous waste generated within the service area than they

did in 2001, but supplied no evidence or data to support this assumption

;

Applicant's expert Smith failed to fully consider potential substitutes for a new

hazardous waste landfill in the service area, including increased recycling of the

type of waste codes accepted by applicant, continued waste reduction in the

service area and increased disposal of hazardous waste generated in the service

area in landfills outside the service area

.

FILED

APR 2 7 2006

PEORIA

JCANN

COUTHOWyMAS

EXHIBIT " 1 -A"

---

Criterion

3

The proposed facility is not located so as to minimize incompatibility with the

character of the surrounding area and to minimize the effect

on the value of the

surrounding property.

A.

Compatibility

Surrounding land uses are a mix of open space, agriculture, industrial and

residential;

•

The testimony and report in the record state the site is separated from

surrounding land uses by natural buffers, vegetative screening, and natural

topography, but with an expansion the natural buffers are not as effective

;

A significant portion of the residential property is in relative close proximity to

the proposed facility;

•

A 45 foot increase in vertical height of this landfill will have a noticeable and

demonstrable effect on surrounding residential properties

;

•

The County did note that during the Applicant's presentation certain before and

after images of what the proposed facility will look like from various positions

in the neighboring residential areas showed that in a few locations the top of the

proposed facility will be visible to neighboring residential properties .

C 13631

B.

Property Values

•

Numerous individuals commented during the public comment period that they

were totally unaware of the facility until the siting process started, but are aware

now;

•

A 45 foot increase in vertical height of this landfill will have a noticeable visual

impact on surrounding residential properties

.

FILED

APR 2 7 2006

JoANN THOMAS

PEORIA COUNTY CLEF

',

EXHIBIT "1-A"

---

Criterion

4

C 13632

The proposed facility

is

located outside the 100-year floodplain

.

•

Applicant presented expert testimony to this effect

;

County Staff confirmed the location of the facility outside of the 100-year flood

plain

;

•

There was no evidence presented that the facility was located in the 100-year

flood plain.

FILED

APR 2 7 2006

JOANN THOMAS

PEOPoA COUNTY CLFF

.

EXHIBIT " 1 -A"

---

C

13633

•

The testimony concerning the organic contaminant found in a shallow

monitoring well located in the upper till in the northeast corner of the facility,

and the subsequent discovery of the same contaminant in a monitoring well

located in the lower sand aquifer in the same area suggests the rapid migration

of contaminants at the site, in directly conflict with the testimony of applicant's

experts, and in support of Mr . Norris' testimony;

•

The increased levels of chlorides in the monitoring well downgradient of trench

C-1 also suggest the same conclusions ;

•

The close proximity of residential neighborhoods to the east of the proposed

facilities raises numerous questions concerning whether the location of the

proposed facility is protective of the public health, safety and welfare

;

•

The facility, at its closest location, is a mere 300 feet from the nearest

residential property ;

The close proximity of the residences raises serious concerns regarding the

potential adverse health effects the proposed landfill may cause to these

residents;

The medical community has spoken out against the proposed expansion due to

the potential health risks posed by place large volumes of hazardous waste so

close to the residents of the County;

•

The Applicant did not present any data, studies, or reports concerning the

potential health affects on the citizens, or any risk assessments or

epidemiological studies or data concerning the proposed facility

;

•

Due to the close proximity and the hazardous nature of the materials being

disposed of and proposed to be disposed of at the facility, the proposed facility

presents an unwarranted risk to the public ;

•

Opponents primary comments were that the liner systems would fail at some

point in the future, and this commentary was largely supported by the testimony

of Applicant's witnesses, the major difference being when the liner systems

would begin to degrade ;

•

Applicant and opponents agree that protection of the groundwater is the primary

concern at the proposed facility ;

However, there is considerable difference of opinion between the parties as to

the magnitude and likelihood of a risk

to the groundwater presented by the

proposed facility;

FILED

One area of concern for the County Staff was the groundwater impact

APR 2 7 2006

JOANN THOMAS

PEORIA t0UMy CLERK

EXHIBIT " 1 •A"

---

assessment conducted by PDC's experts Dr

. Barrows and Ken Liss ;

•

The type of groundwater modeling done by Dr

. Barrows is appropriate for this

type of application and for determining future potential impacts to groundwater

as required by IEPA for

permit applications ;

•

IEPA requires this type of modeling to determine impacts up to 100 years after

closure, but the Applicant did the modeling for 500 years after closure ;

•

At the public hearing, Dr. Barrows was asked about his modeling and his

sensitivity analysis, and he stated in his testimony that the report on his

sensitivity analysis was incorrect, and that the most sensitive parameter was flux

through the liners as opposed to the hydraulic conductivity of the clayey till

underlying the liners;

•

After the public hearing, and before the close of the public comment period, Dr

.

Barrows submitted a supplemental report detailing his corrected findings

regarding the sensitivity analysis, but County Staff was not able to

independently verify his corrected conclusions ;

•

Because County Staff was not able to independently verify his corrected

conclusions, the County is unwilling to accept the results of the modeling as a

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

contaminants at the site ;

Mr. Liss testified for the Applicant that the groundwater monitoring data

demonstrates the existing facility is not contributing contamination to the

groundwater at the site ;

Mr

. Norris disputed that conclusion by pointing to TOX sampling data;

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 ;

A number of the opponents and their witnesses call into question the safety of

the inactive portions of the site

.

C

13634

FILED

APR 2 7 2006

JOANN THOMAS

PEORIA COUNTY CLERK

EXHIBIT

"1-A"

---

Criterion 5

The plan of operations for the facility is designed to minimize the danger to the

surrounding areas from fire, spills, and other operations accidents, if certain special

conditions are met

.

Applicant presented expert reports and testimony concerning its plan of

operations and its fire, spill, and operational accident plans

;

•

The plans set forth details of hours of operation, waste screening and acceptance

procedures, waste handling procedures, daily waste placement and cover

operations, leachate management, air quality controls, dust managements, mud

tracking, noise control, access control, hazard prevent and emergency response

plans;-

•

The testimony and documents submitted by Applicant demonstrate it is fully in

compliance with its regulatory requirements for financial assurance for closure

and post-closure care, and in fact has more funding in its trust than is presently

required by IEPA;

•

The testimony and documents submitted both in support of and against the

application suggest that long term care and maintenance of the facility is

necessary to fully and adequately protect the public health, safety and welfare ;

•

The County ordinance requires the applicant to present calculations of perpetual

care costs for the proposed facility

;

•

The Applicant presented perpetual care cost estimates during the public hearing,

and offered to implement and fund a perpetual care fund for the proposed

expansion as well as inactive waste management areas of the larger facility ;

•

Applicant's plans do not adequately provide for the perpetual care of the facility

after the termination of the post-closure care period

;

•

Applicant's plans do not adequately provide for the proper removal of leachate

from the leachate manholes

;

•

Applicant's plans do not adequately provide for the monitoring of stormwater

discharges to make sure stormwater has not come into contact with either the

waste and/or leachate;

•

Questions and concerns were raised about coordination with fire departments

and emergency service providers, and the proximity to schools

;

•

There was no evidence presented which demonstrated Applicant's plans for

fires, spills or accidents were insufficient

;

C

13635

FILED

APR 2 7 2006

ORA

N,oumSVHIBIT"1-A"

---

C

1 3 6 3 6 FILED

APR 2 7 2006

•

There

coordination

was no

with

evidence

local

presented

fire departments

which demonstrated

and emergency

there

service

was a

provideslack

of

;

JOANNTHOMAS

PEORIA COUNTY OLE"

•

There was no evidence presented which demonstrated there was any risk to

schools from potential fires, spills, or accidents at the facility

;

•

The facility is located close to residential houses, and a fire, spill or other

operations accidents, could present a danger for residents

.

Special Conditions -

Criterion 5 :

1 .

Leachate will be automatically removed from all leachate manholes to maintain

a minimal risk of leachate on the manhole liner

. This is intended to minimize

risk of leachate leakage through liner

components.

2.

The south stormwater detention basin shall be tested on a schedule identical to

the existing permit requirements for groundwater monitoring wells and for the

following indicator constituents

: TDS (total dissolved solids), chloride,

calcium, bromide, sulfate, and sodium . Although stormwater typically has less

stringent water quality parameters, the records shall be kept and analyzed to

verify that trends do not increase to levels of concern that would indicate

leachate has been accidentally released to stormwater as long as the active

landfill operations occur . PDC shall notify the County of any statistically

significant upward trend in stormwater concentrations .

3.

Effective upon PDC's receipt of a permit

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 .00 per ton of the Expanded

Volume of Waste deposited in the PDC Landfill, but if the volume of waste

disposed of at the landfill facility in any calendar year is less than 150,000 tons,

PDC shall pay into the fund a minimum of $750,000 for 15 years . Said

payments shall be calculated based upon the same information and figures used

to calculate the Host Benefit Fee pursuant to Section 9 of the Host Community

Agreement, and shall be subject to the same documentation and verification

requirement of the Host Benefit Fee . Said Perpetual Care Fund shall be used

exclusively for the care and maintenance of the entire PDC site after the period

of post-closure care for the expanded landfill has been terminated by IEPA .

EXHIBIT "1-A"

---

Criterion 6

Traffic patterns to and from the facility are so designed as to minimize the impact

on existing traffic flows provided certain special conditions are met .

•

Applicant presented expert testimony and a report establishing that the facility

will have minimal or no impact on existing traffic flows;

•

No expert testimony, report or other evidence was submitted into the record that

contradicts the conclusions of Applicant's expert ;

•

The expanded facility is proposed to be operated in substantially the same

fashion as the existing facility, and the existing facility is not causing traffic

flow problems according to local and state transportation agencies;

Some concerns regarding the possibility of transportation related accidents were

raised

; however, those concerns were better addressed under other criteria;

•

Applicant's expert report recommends coordinating efforts with the Illinois

Department of Transportation to install advance warning signs along State

Route 8 to warn motorists of possiblee truck turning movements ;

•

Applicant's report indicates it has designated two (2) main haul routes for trucks

coming to and leaving the facility, but does not specify whether or how those

routes are communicated to haulers who are not affiliated with Applicant ;

Special Conditions - Criterion 6

:

C

13637

I .

PDC shall work with DOT to install an advance warning sign along State

Route 8 at this location to alert motorists of possible truck turning movements

.

2 .

PDC shall inform all haulers to and from the facility of the designated truck

routes in writing and PDC shall cooperate with local law enforcement agencies

to enforce the truck routing requirements on the surrounding roads.

FILED

APR 27 2006

JOANN THOMAS

PEORIA COUNTY CLERK

EXHIBIT

"1-A"

---

Criterion 7

The Applicant has an emergency response plan that sufficiently includes

notification, containment and evacuation procedures to be used in case of an

accidental release at the facility, provided special conditions are met

.

•

The application includes Spill Prevention Control and Countermeasure Plan, a

Stormwater Pollution Prevent Plan, and a RCRA Contingency Plan

;

•

Applicant presented testimony of its operational expert concerning the

foregoing plans

;

•

Thete was no evidence or testimony submitted into the record indicating there

were no plans or that any plans were lacking

;

Some questions were raised regarding the degree of emergency preparedness

and coordination with applicable emergency response agencies, but no facts or

evidence was presented to support or validate such questions or concerns ;

•

While the plans generally meet this criterion, additional measures are necessary

to folly coordinate emergency procedures and activities with applicable

emergency responders in the County to adequately prepare for a potential

emergency;

C

13638

Special Conditions - Criterion 7 :

1 .

PDC shall annually host a table-top meeting with appropriate emergency

responders from Peoria County as approved by the Peoria County

Administrator

. This may include, but not be limited to, the Peoria County

Emergency Services and Disaster Agency, Peoria County Highway Department,

Peoria County Sheriff's Office, Limestone Township Fire Protection District,

with invitations to attend forwarded to the City of Peoria Fire Department and

the Illinois Emergency Management Agency for their input .

2.

PDC shall annually have a mock disaster drill, with appropriate emergency

responders from Peoria County as approved by the Peoria County

Administrator . This may include, but not be limited to, the Peoria County

Emergency Services and Disaster Agency, Peoria County Highway Department,

Peoria' County Sheriff's Office, Limestone Township Fire Protection District,

with invitations to attend forwarded to the City of Peoria Fire Department and

the Illinois Emergency Management Agency for their input .

3.

PDC shall coordinate with E-91 I in order to utilize the reverse 911 system and

is responsible for contacting 911 if and when an emergency happens .

FILE[

APR

2 7 2006

PEopCO~NTy

:

.

EXHIBIT

"1-A"

---

Criterion 8

The proposed expansion of the landfill is consistent with the County's integrated

solid waste management plan and the 1996 and 2001 five-year plan updates .

•

Applicant presented a report and testimony by its expert, Sheryl Smith, who

concluded the proposed facility is consistent with the County's solid waste

management plan and the updates thereto

;

•

There was no evidence or testimony that was contrary to the Applicant's expert

testimony or report

;

•

County Staff concluded the proposed facility is consistent with the County's

solid waste management plan;

County Staff is responsible for implementing the County's solid waste

management plan, and is in the best position to make a determination as to

whether the facility is consistent with the plan or not

.

C

1 363

9

Air.

APR 2 7 200h

JOANN rr

PEORIA Coi

.

EXHIBIT "1-A"

---

Criterion 9

The proposed facility is located outside any regulated recharge area

.

C

13640

Applicant presented the testimony of its expert, George Annstrong, that the

proposed facility is not located within a regulated recharge area

;

•

Comments or concerns were raised concerning the proposed facility being

located above an aquifer and that the aquifer is hydraulically connected to a

regulated recharge area ;

•

However, no testimony or evidence was provided that contradicted the

Applicant's witness regarding the location of the recharge area and the location

of the proposed facility

;

County Staff independently confirmed the proposed facility is not located

within the regulated recharge area for the Pleasant Valley Public Water District

or any other regulated recharge area

.

EXHIBIT "1 -A"

---

assessment conducted byPDC's experts Dr . Barrows and Ken Liss;

•

The type of groundwater modeling done by Dr

. Barrows is appropriate for this

type of application and for determining future potential impacts to groundwater

as required by IEPA for permit applications ;

•

IEPA requires this type of modeling to determine impacts up to 100 years after

closure, but the Applicant did the modeling for 500 years after closure ;

•

At the public hearing, Dr

. Barrows was asked about his modeling and his

sensitivity analysis, and he stated in his testimony that the report on his

sensitivity analysis was incorrect, and that the most sensitive parameter was flux

through the liners as opposed to the hydraulic conductivity of the clayey till

underlying the liners ;

•

After the public hearing, and before the close of the public comment period, Dr .

Barrows submitted a supplemental report detailing his corrected findings

regarding the sensitivity analysis, but County Staff was not able to

independently verify his corrected conclusions ;

•

Because County Staff was not able to independently verify his corrected

conclusions, the County is unwilling to accept the results of the modeling as a

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

contaminants at the site ;

•

Mr

. Liss testified for the Applicant that the groundwater monitoring data

demonstrates the existing facility is not contributing contamination to the

groundwater at the site

;

•

Mr

. Norris disputed that conclusion by pointing to TOX sampling data

;

•

The County finds the surface impoundment pretently 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

;

•

A number of the opponents and their witnesses call into question the safety of

the inactive portions of the site

;

•

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 2

.

County staff indicated it was their opinion that only with the imposition of

numerous special conditions could Criterion 2 be satisfied

.

EXHIBIT "1 -B"

---

EXHIBIT "2"

2005-2006 RULES OF ORDER OF

THE PEORIA COUNTY BOARD

EXHIBIT "2"

---

---

CONTENTS

Article I

.

METINGS

2

Article 11,

MEMBERSHIP

4

Article Ill .

OFFICERS OF THE BOARD

4

Article IV.

ORDER OF BUSINESS „,, 6

Article V.

PROCEDURE

8

Article VI,BA

.

STANDING

EXECUTIVE

MANAGEMENT

COMMITTEES

COMMITTEESERVICES OF

COMMITTEETHE

COUNTY

BOARD

.... . .....

181620

GsH

F

S,ED

.

:

.

TRANSPORTATION

FACILITIES

TAX/ECONOMIC

LAND

IUDICIAL

HEALTH

USE

AND

COMMITTEECOMMITTEECOMMITTEEENVIRONMENTAL

DEVELOPMENT

COMMITTEE

.. . . . . . . . . . .

ISSUES

.

.

.

COMMITTEE

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

COMMITTEE

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

..... . . ...

..

2523222124

L

FINANCE/LEGISLATIVE STUDY COMMITTEE

..... . . . .

.

.

.

.

.

.

.

. .

. .

.

.

.

.

.

.

.

.

.26

.27

Article VII.

COMMITTEE MEMBERSHIP

30

Article VIII,

COUNTY BOARD MEMBER PHONE NUMBERS

. . . . . . .

.

. .

. .. . . ...32

1

EXHIBIT "2"

---

Section 2: Vice-Chairperson

A. Selection -

I) The Vice-Chairperson shall be nominated and

selected in the same manner as the Chairper-

son .

B. Duties -

I) The Vice-Chairperson shall act as Chairperson

pro-tempore in the absence or temporary

inability of the Chairperson to preside at a

meeting.

Section 3: The County Clerk of Peoria County, or a

deputy selected by the County Clerk, shall be the Clerk of

the Board, shall be the keeper of the records and the

minutes of the Board and shall be in attendance at all

meetings of the Board .

Section 4: The State's Attorney of Peoria County, or

an Assistant State's Attorney selected by the State's

Attorney, shall be Parliamentarian of the Board and upon

request of the Chairperson shall render opinion and

advise on questions of parliamentary law and procedure

applicable to matters arising before the Board . The rules

of parliamentary practice, as set forth in the latest

published edition of Robert's "Rules of Order, Revised",

govern the proceedings of the Board to the extent the

same are not inconsistent with the Rules of Order of the

Board.

Section 5:, The Sheriff of Peoria County, or a deputy

selected by the Sheriff, shall, at the request of the

Chairperson, be Master-at-Arms during

all meetings of the

Board and shall preserve and maintain order and decorum

in the meeting room of the Board .

Article IV.

ORDER OF BUSINESS

Section 1

: The order of business presented before the

Board shall be as follows, unless otherwise determined

upon by action of the Board .

6

EXHIBIT "2"

---

RECEIVEDCLERK'S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

DEC

]

4 2006

PEORIA DISPOSAL COMPAN0py

(V~(~~)~

STATE OF

ILLINOIS

Pollution Control Board

Petitioner,

)

PCB 06-184

v.

)

(Pollution Control Facility Siting

Appeal)

PEORIA COUNTY BOARD,

)

Respondent.

)

RESPONSE TO MOTION FOR PARTIAL

SUMMARY JUDGMENT (415 ILCS §5/39.2(e))

NOW COMES Respondent, Peoria County Board, (hereinafter the "County

Board") by its attorneys, and as and for its Response in opposition to Petitioner's Motion

for Partial Summary Judgment (415 ILLS §5/39 .2(e)), states as follows :

1 . Section 39 .2(e) of the Act provides, in pertinent part, that "[i]f there is no

final action by the county board . .

. within 180 days after the filing of the request for site

approval the applicant may deem the request approved."

2 .

On May 3, 2006, within the 180 day time period (regardless of whether

the Board uses the date Peoria Disposal Company submitted the application or the date

the County accepted the application for filing), the Peoria County Board took final action

on the application voting against approval of the application by a vote of 12 against and 6

for the application .

3 .

Section 39 .2(e) of the Act also provides, in pertinent part, that the

"decisions of the county board . . . are to be in writing, specifying the reasons for the

decision, . . . .

4.

At the May 3, 2006, the Peoria County Board approved detailed written

findings of fact regarding setting forth the County Board's decision on each of the nine

(9) statutory criteria .

5 .

In addition to the detail written findings of fact approved by the Peoria

County Board, the County also had a court reporter transcribe the May 3, 2006, Peoria

County Board so there is a precise record of the proceedings on that date .

6.

The Act requires only that the local siting authority take "final action"

within the 180 day deadline .

---

7 .

The vote by the Peoria County Board at the May 3, 2006, Board meeting

rejecting the motion to approve the application was "final action" under the statute

.

8 .

The Act does not require the local siting authority to have its decision in

writing within the 180 day deadline .

9.

Even though a written decision was not required within the 180 day

deadline, the Peoria County Board's approval of the detailed written findings of fact at

the May 3, 2006, is most certainly in writing and specifies the reasons for its decision on

each of the statutory criteria .

10.

Both the detailed written findings of fact and the court reporter's transcript

of the May 3, 2006, County Board meeting were kept in the Peoria County Clerk's office

and files, and were available to the public for inspection, copying, and otherwise

.

WHEREFORE, Respondent, the Peoria County Board, respectfully prays that

this Board deny Petitioner's Motion for Partial Summary Judgment

.

Respectfully submitted,

PEORIA COUNTY BOARD

David A . Brown

One of its attorneys

Black, Black & Brown

Attorneys at Law

101 S. Main Street

P.O . Box 381

Morton, IL 61550

Phone

: (309) 266-9680

Fax : (309) 266-8301

---

PEORIA DISPOSAL COMPANY

Petitioner,

V .

PEORIA

COUNTY BOARD,

Respondent.

AFFIDAVIT OF SERVICE

The undersigned, being duly sworn upon oath, states that a copy of the attached

Memorandum of Facts and Law In Support of Response To Motion For Partial Summary

Judgment (415 ILCS §5/39

.2(e)) and Response to Motion For Partial Summary Judgment

(415 ILCS §5/39.2(e)),

was served upon the following persons by enclosing such

documents in separate envelopes, addressed as follows, and depositing said envelopes in

the U.S

. Postal Service mail box at Morton, Illinois on the /t'

day of December, 2006,

before 5 :00 p.m.,

with all fees thereon fully prepaid and addressed as follows

:

Carol Webb

George Mueller, P .C .

Hearing Officer

Attorney at Law

Illinois Pollution Control Board

628 Columbus Street, Suite 204

1021 North Grand Avenue East

Ottawa, IL 61350

P.O

. Box 19274

Springfield, Illinois 62794-9274

Brian J . Meginnes

Elias, Meginnes, Riffle & Seghetti, P

.C .

416 Main Street, Suite 1400

Peoria, IL 61602

Dated : December 12, 2006

.

OFFICIAL SEAL

HEATHER A. FEENEY

No

NOTARY PUBLIC-STATE OF ILLINOIS '

MY COMMISSION EXPIRES 56200'

RECEIVED

CLERK'S OFFICE

DEC 1

u

2006

BEFORE THE ILLINOIS POLLUTION CONTROIPollution

gAWFControl

ILLINOIS

Board

P

PCBY06-184

(Pollution Control Facility Siting

Appeal)

Subscribed and sworn to before me, a Notary Public, in the County and State as

aforesaid, this

/2

day of December 12, 2006 .

a