BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
Petitioner,
V .
PEORIA COUNTY BOARD,
Respondent .
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 - Telephone
(815) 431-1501 - Facsimile
BRIEF OF
PETITIONER PEORIA DISPOSAL COMPANY
(Pollution Control Facility Siting Appeal)
RECEIVED
CLERK'S OFFICE
FEB 1 6 2007
Pollution
STATE OFControl
ILLINOISBoard
Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, RC
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(309) 637-6000 -Telephone
(309) 637-8514- Facsimile
TABLE OF CONTENTS
Page Nos
.
TABLE OF CONTENTS
i-v
INTRODUCTION
1-2
ISSUES PRESENTED FOR REVIEW
2
STATEMENT OF FACTS
2-57
I.
BACKGROUND .
2-4
II.
FACTS SUPPORTING ARGUMENT THAT THE APPLICATION IS
5-6
DEEMED APPROVED PURSUANT TO 415 ILCS §5/39 .2(e).
III. FACTS SUPPORTING ARGUMENT THAT THE PROCEDURES
6-25
USED BY THE COUNTY BOARD IN THIS CASE WERE NOT
FUNDAMENTALLY FAIR .
A.
The County Board members did not understand their functions to
6-10
be quasi-judicial, did not understand the meaning or import of
ex
parte contacts, and did not disclose such contacts .
B.
The County Board members who voted against approval of the
11-19
Application received more than 1,000 ex parte contacts from
opponents of the Application during the pendency of the
Application .
PDC's First Set of Requests to Admit: 309 Emails, Letters 11-12
and other Documents Not Placed in the Record
.
2.
County Board member admissions .
12-13
3.
The campaign by the opponent groups .
13-19
C.
The votes of eight (8) of the County Board members who voted
20-25
against approval of the Application must be stricken .
I & 2 . G
. Allen Mayer and James Thomas
20-21
3.
Eldon Polhemus 21-22
4.
Tom O'Neill
22-23
I
ii
5.
Brian Elsasser
23
6.
Michael Phelan
24
7.
Philip Salzer
24
8.
Lynn Scott Pearson
24-25
IV
. FACTS SUPPORTING ARGUMENT THAT THE PURPORTED
25-57
DECISION OF THE COUNTY WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND WAS OTHERWISE IMPROPER
UNDER THE LAW
.
A.
Criterion is
the facility is necessary to accommodate the waste 25-28
needs of the area that it is intended to serve .
1 .
26
Hazardous waste service area .
2.
Manufactured gas plant remediation waste service area .
26-27
3 .
Non-hazardous process waste service area .
27-28
B.
Criterion ii: the facility is so designed, located and proposed to be
28-53
operated that the public health, safety and welfare will be
protected .
I .
28-31
Facility overview .
2.
Geologic and hydrogeologic setting .
31-33
3 .
Facility design .
33-34
4.
Performance evaluation and groundwater impact
35-37
assessment .
5 .
Peer review by Dr
. Daniel.
37-40
6.
Groundwater monitoring and monitoring history .
40-43
7 .
Operating plan .
43-47
8 .
The opposition witnesses .
47-53
C.
Criterion iii
: the facility is so located as to minimize
53-56
incompatibility with the character of the surrounding area, and to
minimize the effect on the value of surrounding property
.
D.
Criterion v : the plan of operations for the facility is designed to 56-57
minimize the danger to the surrounding area from fire, spills or
other operational accidents .
STANDARD OF REVIEW AND APPLICABLE LAW
57-59
ARGUMENT
59-113
I .
THE APPLICATION IS DEEMED APPROVED PURSUANT TO 415
59
ILCS §5/39 .2(e).
II.
THE PROCEDURES USED BY THE COUNTY BOARD IN THIS
59-86
CASE WERE NOT FUNDAMENTALLY FAIR .
A.
The entire County Board was irrevocably tainted by the volume of 60-71
ex parte contacts in this case.
1 .
The County Board members did not understand their roles
63-66
and obligations as quasi-judicial decision-makers .
2.
The sheer volume of ex parte contacts in this case creates a 67-71
presumption of prejudice
.
B .
Eight (8) County Board members actually considered evidence
71-83
outside the Record rather than evidence in the Record, or were
biased.
C.
I & 2. G. Allen Mayer & James Thomas
3 .
Eldon Polhemus
4.
Tom O'Neill
5 .
Brian Elsasser
6.
Michael Phelan
7.
Philip Salzer
8.
Lynn Scott Pearson
iii
72-73
73-75
75-77
77-78
78-80
80-82
82-83
The proper remedy for the gross unfairness of the proceedings on
83-86
the Application is approval of the Application or, if the Application
is remanded, payment of PDC's costs incurred in the previous
proceedings on the Application .
III .
THE PURPORTED DECISION OF THE COUNTY WAS AGAINST
86-113
THE MANIFEST WEIGHT OF THE EVIDENCE, AND WAS
OTHERWISE IMPROPER UNDER THE LAW .
A.
The causes for the County Board's failure to weigh the evidence 88-92
properly.
1 .
The County imposed an impossible burden of proof .
89-90
2 .
The County elevated speculation to the level of fact .
91-92
B .
Criterion is The facility is necessary to accommodate the waste
92-95
needs of the area that it is intended to serve .
C.
Criterion ii: The facility is so designed, located and proposed to be 96-110
operated that the public health, safety and welfare will be
protected .
1 .
The theories of Charles Norris are not credible or supported 97-99
by facts
.
2.
No other competent evidence was presented by the
99-102
opponents.
3.
PDC's Perpetual Care Fund proposal guarantees long-term 102-104
safety.
4 .
The County's findings of fact .
104-110
D.
Criterion iii : The proposed facility is located so as to minimize
111-112
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property .
E.
Criterion v: The imposition of a $5 .00 per ton surcharge as a
113
condition of approval of siting Criterion v is against the manifest
weight of the evidence .
AFFIDAVIT OF SERVICE
114
AFFIDAVIT OF FILING
115
iv
APPENDIX
Excerpts : Brief of the Illinois Pollution Control Board prepared by the Attorney
A
General in Case Nos . 101619 and 101652, Town & Country Utilities, Inc,and
Kankakee Regional Landfill, LLC, Petitioners/Cross-Respondents-Appellees, v .
Illinois Pollution Control Board, Respondent/Cross-Respondent-Appellant, and
County of Kankakee and Edward D. Smith, State's Attorney of Kankakee County,
Respondents/Cross-Petitioners-Appellants, pending before the Illinois Supreme
Court
EXHIBITS
Exhibit 1 : County invoice no . CoAdm06282006, dated June 28, 2006, with
1
supporting documents
Exhibit 2 : County invoice no . CoAdm08012006, dated August 1, 2006, with
2
supporting documents
Exhibit 3 : Accounting of PDC's expert costs from the hearings
3
v
Tab
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
)
Petitioner,
)
PCB 06-184
v .
)
(Pollution Control Facility Siting Appeal)
PEORIA COUNTY BOARD,
)
Respondent .
)
BRIEF OF
PETITIONER PEORIA DISPOSAL COMPANY
NOW COMES Petitioner, Peoria Disposal Company,
(hereinafter "PDC" or
"Petitioner") by its attorneys, Brian J . Meginnes and George Mueller, and as and for its Brief,
states as follows :
INTRODUCTION
The County failed to render a final decision in this matter within the statutory timeframe
.
Even if the County's vote had been an effective denial of the Application, the County failed to
memorialize its decision in writing within (or even after) the statutory deadline passed
.
Therefore, the Application was deemed approved as filed, without any conditions, pursuant to
415 ILCS §5/39 .2(e)
. In any case, regardless of the failure of the County to render a decision on
the Application, the proceedings on the Application were so dramatically violative of PDC's due
process guarantees as to nullify any purported decision .
Finally, the supposed bases for the
County Board's alleged denial of the Application flew in the face of the evidence, and reveal a
significant failure of the County Board to apply the legal standards and evidentiary practices
crucial to a proper determination of siting criteria i, ii, iii and v, set forth in 415 ILCS §5/39
.2(a).
1
For any and all of these reasons, the Application should be approved by the Pollution Control
Board, as set forth herein.
ISSUES PRESENTED FOR REVIEW
l .
Whether the County rendered a final decision in this matter and, if so, whether the
final decision was in writing and was timely pursuant to 415 ILCS §5/39 .2(e).
2 .
Whether the proceedings pertaining to the Application were fundamentally fair
.
3 .
Whether the County's purported decisions as to siting criteria i, ii, iii and v, set
forth in 415 ILCS §5/39 .2(a), were against the manifest weight of the evidence .
STATEMENT OF FACTS
I. BACKGROUND
.
On November 9, 2005, PDC filed an Application for expansion of its hazardous waste
facility located west of the City of Peoria, in Peoria County, Illinois (the "Application") . The
existing facility, known as Area C, is approximately 32 acres
; in the Application, PDC sought a
horizontal expansion of eight acres and a vertical expansion over the existing unit of up to 45
feet. (Clearly, the PDC No . 1 Landfill, even with the expansion requested in the Application, is a
very small landfill by modem standards). The landfill is tucked away into heavily wooded,
rolling terrain, and is surrounded on three sides by undeveloped land also owned by PDC
.
The proposed expansion sought to extend the facility's operating life by an additional 15
years, to 2023 . The facility currently receives, and plans to continue to receive, approximately
150,000 tons of solid waste per year, consisting mainly of non-hazardous special waste and metal
bearing listed hazardous waste, which is treated onsite to below the Land Disposal Restriction
(LDR) standards before ultimate disposal .
2
Peoria Families Against Toxic Waste ("PFATW"), a voluntary association and the Heart
of Illinois Chapter of the Sierra Club ("HOT Sierra"), registered and participated in the
proceedings on the Application as objectors
. Both groups were represented by counsel .
A public hearing on the Application was conducted by the County, commencing on
February 21, 2006, and continuing for six days . PDC called nine expert witnesses who gave
direct testimony and were cross-examined at length on all of the statutory siting criteria
. The
opposition groups collectively called four witnesses, only one of whom was qualified as an
expert. Many people gave unsworn public comment
. Both PDC and the opposition groups made
post-hearing unsworn written submissions to the County .
The County Staff issued a 103-page, detailed report analyzing the evidence properly
submitted in the Record, and issued a 36-page supplemental report after the close of the public
comment period. Both reports recommended siting
approval, subject to conditions, with which
PDC had agreed during the public hearing
. The County Staff also provided the County Board
with three sets of alternative proposed findings of fact .
On April 6, 2006, the County Board met as a Committee of the Whole to consider and
recommend findings of fact .
What action, if any, the County Board took at that meeting is
unclear, as discussed in great detail in a Motion for Summary Judgment (415 ILCS §5/39
.2(e))
and Memorandum of Law in support thereof, filed on November 20, 2006, by PDC with this
Board.
On May 3, 2006, the County Board met again for the purported purpose of making a final
decision.
The County Board had before it a resolution recommending unconditional siting
approval, and a set of proposed findings of fact consistent with outright disapproval
. A motion
for approval of the Application with conditions failed, and no other motions or resolutions with
3
regard to approval or denial of the Application were brought before the County Board. The
findings of fact before the County Board were orally amended, and then adopted as amended.
No written decision issued.
The legal implications and consequences of what occurred and did not occur on May 3,
2006, and in the weeks thereafter, have been argued in detail in the Applicant's Motion for
Summary Judgment (415 ILCS §5/39 .2(e)) which is pending before this Board . PDC takes the
position that there was no final action or written decision as those terms are used in §39 .2 of the
Illinois Environmental Protection Act and in the Illinois Administrative Code . However, in the
alternative and without waiver of that argument, PDC also argues that, if there was a decision
denying the Application, it was against the manifest weight of the evidence . PDC had
considerable difficulty identifying any writing that could arguably be a decision for the purposes
of its manifest weight argument . The County has identified the transcript of the May 3, 2006
meeting as the written decision, but the transcript does not "specify[] the reasons for the
decision" as required by law . 415 ILCS §5/39 .2(e) . (Notably, as is set forth in PDC's Reply in
Support of its Motion for Summary Judgment (415 ILCS §5/39 .2(e)), filed on December 28,
2006, the transcript of the May 3, 2006 meeting was not actually approved and adopted by the
County Board until its meeting on June 8, 2006, the day after PDC filed its Petition for Review
in this case and the 36th day after the May 3, 2006 meeting)
. The proposed findings of fact filed
by the County Staff in the County Clerk's office on April 27, 2006, were not adopted as written
by the County Board, but at least provide an approximation of the County Board's reasons for its
purported denial of the Application .
Accordingly, this Brief will reference those proposed
findings as though they represent the written reasons for a denial of siting
.
4
II
. FACTS SUPPORTING ARGUMENT THAT THE APPLICATION IS
DEEMED APPROVED PURSUANT TO 415 ILCS 45/39.2(e).
As and for its Statement of Facts regarding the first question presented for review by the
Pollution Control Board, PDC adopts and incorporates the statements of fact made in PDC's
Motion for Summary Judgment (415 ILCS §5/39
.2(e)) and the Memorandum in Support thereof,
filed on November 20, 2006, and in PDC's Reply in Support of its Motion for Summary
Judgment (415 ILCS §5/39 .2(e)), filed on December 28, 2006
. In addition, PDC submits the
following excerpt from the testimony of Patrick Urich, Peoria County Administrator, at the
hearing held by the Pollution Control Board on January 8, 2007, regarding the County internet
website, the only location where a transcript of the May 3, 2006 hearing could ever be found
prior to this appeal :
• [by Mr
. Mueller] Now are there any County ordinances which
designate this website that you refer to as the official repository of
County records?
A No.
•
Is it the official repository of County records?
A No .
•
Were there any ordinances adopted in connection with this
landfill application indicating that notices to the public and to the
parties and other official
information would be officially
transmitted via the County's website?
A No.
• So the County's website was really an informal way of getting
information out to those members of the public who wanted to
utilize it, right?
A Yes
.
5
(Tr. 1/8/07, 43/10-44/16)
.'
Q And efforts were made to keep the information accurate, but
nobody ever pretended that the website was the official repository
of landfill application information ; is that true?
A That is true .
Q And your understanding is that the County Clerk's Office was
the official repository of landfill related information?
A By our ordinance the County Clerk's Office is the keeper of the
official record.
Q And so, actually, the County Clerk, who at that time was JoAnn
Thomas, was the keeper of the official record?
A Yes.
III. FACTS SUPPORTING ARGUMENT THAT THE PROCEDURES USED
BY THE COUNTY BOARD IN THIS CASE WERE NOT
FUNDAMENTALLY FAIR .
A. The County Board members did not understand their functions to be
quasi-judicial, did not understand the meaning or import of ex parte
contacts, and did not disclose such contacts
.
The facts clearly support the conclusion that the County Board members
who voted
against approval of the Application did not understand their function to be quasi-judicial, rather
than legislative, did not understand the meaning or import of ex parte contacts, and did not know
that they were to disclose such contacts .
Board member Brian Elsasser stated that he was not aware that he was to avoid
ex parse
communications, and in fact, "welcome[d] anybody's phone calls at any time if they have
something they want to say to me ." (Elsasser, Dep . 1, 11/16-12/5). Elsasser contended that he
1 Citations to the various transcripts of hearings filed in the record with the Pollution
Control Board will
generally be in this format : "Tr. [date of hearing], [page/line]-[page/line]
; C " or "Tr. [date of
hearing], [page]/[line-line] ; C ."
Citations to transcripts of depositions filed at the hearing before
the Pollution Control Board's hearing officer will reference the name of the deponent and the "number"
of the deposition (correlating with the indices and tabs in the bound volumes of depositions
submitted to
the hearing officer) .
6
was permitted to receive information from any member of the public throughout the proceedings,
but was not permitted to respond to same . (Id., 12/9-19) . He further stated that he read all the
emails he received, to the extent possible, and that he was to consider emails and letters in
conjunction with the information gathered at the hearing . (Id 14/15-24, 12/20-13/8) . Elsasser
testified that he first disclosed the documents he received during the proceedings on the
Application in discovery . (Id., 16/24-17/8)
.
Board member Joyce stated that he put emails received during the proceedings "straight
into a folder, and then that folder has since been emptied." (Joyce, Dep
. 2, 10/15-24) . Joyce
further testified that the County did not ask him to disclose the "couple of dozen" letters he
received during the proceedings on the Application . (Id., 24/13-21).
Board member Thomas O'Neill also testified he was told (or at least understood) that
while he was not to express his opinions about the Application to members of the public, he was
free to listen to and consider the opinions of the public regardless of whether or not same were in
the Record
. (O'Neill, Dep. 4, 15/16-16/6) . O'Neill shredded all the letters he received . (Id.,
19/3-12)
.
Board member Lynn Scott Pearson stated that she was to consider "[e]verything that was
presented to [her]" in rendering her decision on the Application, including the emails she
received outside of the Record . (Pearson, Dep . 5, 23/21-24/9)
. She also testified that while she
was not to express her opinions about the Application to members of the public, she was free to
accept communications from the public regardless of whether or not same were in the Record,
and that she never discouraged anyone from delivering their opinions to her
. (Id.,
24/16-25/14) .
Pearson testified that she was never told to file the letters she received during the proceedings on
the Application with the Clerk. (Id., 13/1-7) .
7
Board member Michael Phelan also testified that, while he was not to express his
opinions about the Application to members of the public, he was free to listen to communications
from the public regardless of whether or not same were in the Record, and that "the public was
allowed to weigh in on this" in public and in private . (Phelan, Dep . 6, 7/3-16, 7/21-8/7) . Phelan
testified that he destroyed the communications he received during the proceedings on the
Application ("shortly after the vote was concluded like I do with most of my county things I get
rid of it, just throw it out"), and that he was never told to, and did not, file any of such materials
with the County Clerk. (Id., 22/21-23/12) .
Board member Eldon Polhemus stated that while he was allowed to, and did, receive
communications from registered opponent groups, he was not
allowed to receive
communications from representatives of PDC during the proceedings on the Application
.
(Polhemus, Dep . 7, 10/8-15, 9/9-10/1)
. Polhemus "stacked up" the letters he received, and then
"threw everything away" after the May 3, 2006 meeting, without ever filing same with the Clerk
.
(Id., 11/2-9)
.
Board member Phil Salzer also testified that, while he was not to express his opinions
about the Application to members of the public, he was free to listen to communications from the
public regardless of whether or not same were in the Record . (Salzer, Dep
. 8, 14/20-15/4). He
further stated that he actually considered the communications he received at his home in forming
his decision on the Application, after weeding out the "crackpot" communications
. (Id. 12/9-
13/12, 17/1-18/1). Salzer testified that he first disclosed documents he received during the
proceedings on the Application in discovery, and that he had "pitched" a number of letters so
received during the proceedings . (Id.,
46/24-47/8) .
8
Board member James Thomas stated that "[the Board members] were instructed that
while we could not discuss in the sense of giving opinions that it was all right to listen to
constituents" regardless of whether or not such communications were in the Record
. (James
Thomas, Dep . 9, 20/24-21/20)
. However, Thomas did not believe that he was free to listen to
communications from representatives of PDC concerning the Application outside the Record .
(Id., 17/13-18/3).
Furthermore, upon receiving communications from the heads of the two
registered opponent groups, Thomas failed to advise them to cease and desist such
communications. (Id., 25/17-26/6) . Thomas testified that he discarded most of the
communications he received during the proceedings on the Application, and that he was not
aware that it was necessary to file letters with the County Clerk (his wife, JoAnn Thomas) .
(Id.,
14/8-18, 15/4-10, 32/18-33/5)
.
Board member Carol Trumpe stated that while she was not supposed to communicate her
opinions about the Application, it was appropriate for her to receive opinions from the public
regardless of whether or not such communications were in the Record
. (Trumpe, Dep
. 10, 9/7-
17, 9/24-10/4) . Trumpe did not believe that she was free to listen to communications from
representatives of PDC concerning the Application outside the Record, "because they were really
the litigants" and she "did not see these other people who were in opposition here as individuals
as litigants." (Id., 38/24-39/5, 39/21-40/7)
. Trumpe testified that she first disclosed emails she
received during the proceedings on the Application in discovery . (Id., 16/21-17/4)
.
Board member Junior Watkins testified that at some point in the proceedings, he was
instructed not to give his opinion to members of the public, but that he was free to listen to
communications from the public regardless of whether or not same were in the Record
.
(Watkins, Dep
. 11, 11/10-18, 13/4-14/2) . Watkins specifically testified regarding a conversation
9
with Mary Harkrader, a former Peoria County Clerk, who opposed the Application
.
(ld.,
22/2-
14) . Watkins did not testify regarding filing of documents with the County Clerk or production
of same in discovery, but also apparently did not produce any documents during proceedings on
the Application or in discovery
. (Watkins, Dep. 11).
Board Chairman David Williams testified that he and his fellow Board members "don't
have a choice whether he calls, you call . We've got to -- you know, we're going to take the call ."
(Williams, Dep . 12, 13/12-13 ; see
id., 12/20-14/8) . Williams did not specifically testify
regarding filing of documents with the County Clerk or production of same in discovery
. (Id.)
Williams testified that he did receive numerous letters during the proceedings on the Application
(id., 18/10-22),
though he apparently produced none of these during such proceedings or in
discovery
.
In conclusion, eleven (11) of the twelve
(12) County Board members who voted against
approval of the Application clearly did not understand their functions to be quasi judicial, rather
than legislative, and did not understand the meaning or import of
ex parte contacts . The same
eleven (11) out of the twelve (12)
County Board members who voted against approval of the
Application did not disclose some or all of the
ex parte contacts they received during the
pendency of the Application . In fact,
every Board member voting against approval of the
Application other than G
. Allen Mayer (a practicing attorney) failed utterly to comprehend his or
her duties in the local siting process .
10
B.
The County Board members who voted against approval of the
Application received more than 1,000
ex parte contacts from
opponents of the Application during the pendency of the Application .
1 . PDC's First Set of Requests to Admit
: 309 Emails, Letters and other
Documents Not Placed in the Record.
In its First Set of Requests to Admit, PDC asked that the County
admit that certain
documents were received by one or more County Board members, and were never filed with the
County Clerk or otherwise made available to PDC . 2 These documents were received from
various County Board members subsequent to the May 3, 2006 meeting, and in the course of
discovery. However, as is set forth in Section II(C), below, eleven of the twelve County Board
members who voted against approval of the Application discarded some or all of the documents
they received during the proceedings on the Application (namely, every Board member other
than G. Allen Mayer, who is a practicing attorney) . In fact, five (5) of the twelve (12) County
Board members who voted against approval of the Application produced no documents
whatsoever in the course of discovery (namely, Joyce, O'Neill, Polhemus, Thomas and
Watkins).
Of the 379 documents presented by PDC, the County admitted that 309 were not filed
with the Peoria County Clerk, namely, documents 2, 3, 11, 12, 19, 23, 49, 50, 51, 52, 54, 57, 64,
65, 66, 68, 70, 72, 73, 74, 76, 77, 78, 82, 83, 84, 85, 86, 92, 93, 94, 95, and
103 through 379 .
These documents represent 1,139 contacts by opponents with County Board members who voted
against approval of the Application (or 998 such contacts if County Board
Chairman Williams
failed to check his email, as he has claimed) . Of those documents, 263 were dated after the
2 The First Set of Requests to Admit of PDC was filed with the Pollution Control Board on
September 25,
2006. The binder of ex parse documents referenced therein was not sent to the Clerk of the Pollution
Control Board, but was contemporaneously tendered to the hearing officer, Carol
Webb. If the Pollution
Control Board would like access to the binder and is unable to procure same from Ms . Webb, PDC is
more than willing to tender a copy of same for the Board's review at its request .
11
public comment period closed (947 contacts, or 821 without Williams) . Moreover, 201 of the
un-filed documents were received from April 7, 2006, through May 3, 2006 (610 contacts, or
517 without Williams) .
2. County Board member admissions .
The County Board members who voted against approval of the Application all admitted
receiving a substantial volume of ex parte contacts during the pendency of the Application . The
following chart summarizes the points in these County Board members' depositions at which ex
pane contacts were discussed :
12
Yard Signs
Emails
Letters
Phone calls
In-person
contacts
Dep. 1-
Elsasser
32/5-15
13/9-21 ;
38/3-5
12-13 ; 16-17 17/19-22 ;
29/15-30/19;
38/3-5
n/a
Dep.
2 -
Joyce
26/3-8
10/15-18
9/20-10/4
25/1-5
n/a
Dep. 3 -
Mayer
n/a
9/9-10/6
(Deposition
Exhibit 27)
8/3-9/8
n/a
n/a
Dep. 4-
O'Neill
21/8-18
16/23-18/1 18/21-19/2
20/5-18
n/a
Dep. 5-
Pearson
13/19-24
9/21-10/4
11/5-7
16/9-18
n/a
Dep. 6-
Phelan
19/6-13
13/8-15
10/22-11/6
13/19-21
n/a
Dep. 7-
Polhemus
17/4-9
11/10-13/18 10/20-11/1
13/19-14/7
16/16-20;
24/1-5
Dep. 8 -
Salzer
24/12-21
22/3-24
23/13-15
23/20-24/1
51/8-20
Dep
. 9-
James
Thomas
37/5-13 ; 38/1-4 23/18-24/8 23/18-24/8 ;
25/17-26/6,
26/16-24
32/8-17
39/3-40/4
For example, without limitation, Joyce viewed "[t]wo or three dozen" yard signs in his
district. (Joyce, Dep . 2, 26/3-8). Elsasser received emails (20 or 30 of which he deleted), letters,
flyers and "many phone calls" from opponents, including opponents registered in the
proceedings and represented by counsel
. (Elsasser, Dep . 1, 15/5-16/19, 17/19-22, 20/14-20 (calls
from Blumenshine and K . Converse))
. Polhemus received "15 to 20" telephone calls and
"between 100 and 125" letters at his home (Polhemus, Dep
. 7, 13/19-14/7, 10/20-11/1)
. James
Thomas received letters from Blumenshine, head of HOI Sierra, and "[t]hree or four" letters
from Kim Converse, head of PFATW, which he destroyed
. (James Thomas, Dep . 9, 25/17-26/6,
26/16-24) . Phelan received dozens of letters, emails and telephone calls
. (Phelan, Dep . 6, 10/22-
11/6, 13/8-15, 13/19-21) . Pearson received "75 or 80" emails (all of which she read), "around
50" letters, and "maybe 40-plus" telephone calls . (Pearson, Dep . 5, 9/21-10/4, 11/5-7, 16/9-18) .
The County Board members who voted against approval of the Application admitted that
they received few or no contacts from PDC or its representatives during the pendency of the
Application . (See, e.g. Elsasser, Dep . 1, 15/1-4, 20/21-21/3 ; Trumpe, Dep . 10, 40/8-41/6) .
3 . The
campaign by the opponent groups .
Two opposition groups were registered as opponents during the proceedings on the
Application : Peoria Families Against Toxic Waste ("PFATW"), and the Heart of Illinois Sierra
Club ("HOI Sierra")
. Both these groups were represented by counsel . PFATW and HOI Sierra
13
Dep . 10-
Trumpe
28/16-22
15/14-16/8 21/12-21
30-38, 42-43 43/17-22
Dep. 11-
Watkins
n/a
n/a
n/a
16/19-21
12/2-5
; 18/6-11
Dep. 12 -
Williams
23/13-24/3
15/14-16/18 18/10-19/6 ;
20/24-21/6
19/10-20/12 ;
20/18-23
18/1-2; 21/6-10 ;
22/6-8
readily admitted that they contacted County Board members directly throughout the proceedings
on the Application, including after the public comment cutoff date (March 29, 2006)
. County
Board Chairman David Williams testified that he was threatened by Kim and Ted Converse, the
heads of PFATW, in March of 2006 . (Williams, Dep. 12, 19/10-20/12) . In addition to PFATW
and HOI Sierra and their members, other members of the public who were "primary" opponents
of the Application included Diane Storey (under the name "Citizens for Our Environment"),
Tom Edwards (under the name "River Rescue"), and Cathy Stevenson .
PDC deposed Joyce Blumenshine, Chair of HOI Sierra during the proceedings on the
Application . Ms. Blumenshine testified that she did not believe that members of the public
should be restrained from freely contacting County Board members during the proceedings on
the Application . (Blumenshine, Dep . 17, 29/7-30/11)
. Nonetheless, Ms. Blumenshine clearly
understood the meaning of the term "ex parse". (Id., 36/7-10).
Blumenshine claimed in her
deposition that a communication was not
"ex parse" as long as it discussed and highlighted only
factual information already in the Record that she thought was important . (Id.,
39/5-40/14) .
Blumenshine rationalized such ex parse
communications on the grounds that she "thought it was
appropriate under the circumstances that PDC had spent over a million dollars on the application
and was a large corporation to make an effort to highlight the facts as we saw it ." (Id., 67/13-
68/8).
As the chairperson of HOI Sierra, Blumenshine wrote in HOI Sierra's bimonthly
newsletter, the Tallgrass Sierran,
that members of the public should "contact as many board
members as you can", and provided contact information for each Board member
. (Deposition
Exhibits Volume II, Ex . 36) . Regarding this directive, Blumenshine testified that she was never
advised by anyone (including, presumably, her attorney and the County) that members of the
14
public and opposition groups were not to communicate freely with the Board members during
the pendency of the Application . (Blumenshine, Dep . 17, 33/20-34/15) . Blumenshine's emails
admitted as Group Exhibit 37 (Dep . Exhibits Vol. II) include discussions amongst members of
HOI Sierra, PFATW and other opponents concerning the need for and occurrence of numerous
contacts with County Board members outside the hearing process . (See also, Blumenshine, Dep.
17, 42/2-45/21) . Blumenshine sent letters to the County Board members directly on HOI Sierra
letterhead (Dep . Exhibits Vol. II, Ex. 40; Blumenshine, Dep . 17, 58/12-59/5), and, after the April
6, 2006 vote of the Committee of the Whole, permitted distribution of flyers through HOI Sierra
to the public, urging people to contact County Board members voting in favor of the Application
and tell the members to "vote NO!" (Dep . Exhibits Vol . III, Ex. 43).
In addition to her activities with HOI Sierra and PFATW, Blumenshine testified that she
personally paid for fifteen (15) billboards opposing the Application
. (Blumenshine, Dep . 17,
20/14-22). Photographs of the billboards were submitted to the Pollution Control Board at the
hearing on this matter as Exhibit 17 (in Dep
. Exhibits Vol . II) pursuant to Stipulation (Ex
. 105).
The billboards pictured in the photographs in Exhibit 17 state as follows
:
PEORIA COUNTY
TOXIC Waste from 10 states!
SAY NO!
www.notoxicwaste
.org
PEORIA COUNTY
Say no to 15 more years of TOXIC Waste!
SAY NO! www.notoxiewaste .org
(Ex. 17) . (The website " www.notoxicwaste .org" was created and is run by PFATW . See K
.
Converse, Dep . 20, 17/19-20) . Blumenshine testified that she spent an additional $2,000 of her
own money on yard signs . (Blumenshine, Dep
. 17, 47/14-16 ; see Dep . Exhibits Vol . II, Ex. 38) .
Blumenshine herself "did call board members and leave messages mostly on answering
15
machines" and "did write some letters and . . . sent them thank you cards ." (Blumenshine, Dep.
17, 32/15-17) . (See Dep. Exhibits Vol . II & III, Ex. 37C-G, 37J-K, 37M-R, 42; see
Blumenshine, Dep. 17, 50/20-52/6)
.
PDC deposed a number of members of PFATW, including Kim Converse, the apparent
leader of the organization . Exhibit 58 is a printout from PFATW's website, dated January 31,
2006. (Dep. Exhibits Vol . III; K. Converse, Dep . 20, 22/7-17) . Immediately below the name of
the organization on the first page of the website is the following phrase : "tell the county board
no toxic waste in peoria" . (Ex. 58). This tagline remained on the website throughout the
proceedings on the Application . (See
Dep
. Exhibits Vol . III, Ex . 59; K. Converse, Dep . 20,
27/13-22). In addition to the website, PFATW distributed fliers urging members of the public to
contact County Board members and tell the Board members to vote against the Application (see
Dep. Exhibits Vol
. III, Ex
. 61, 64, 65), based on PFATW's alleged belief that such contacts were
permissible under the law (K . Converse, Dep . 20, 48/22-49/14) .
Ms
. Converse, like Blumenshine, claimed that she believed that she was permitted to
contact County Board members regarding the Application, and to highlight and emphasize
portions of the Record favorable to PFATW's position . (K. Converse, Dep. 20, 30/13-17, 31/2-
3, 31/11-23, 24/23-26/2) . However, the PFATW website included the following discussion of
restrictions on ex parse communications :
County Board Restrictions : The County Board's legal counsel
(States Attorneys Office) has advised members not to share their
view on the issue since it could open them up to lawsuits . They
argue that Board members will be acting as "judges" in this matter
and therefore sharing any viewpoint would be pre-judging .
This presents a Catch 22 for citizens trying to engage in the public
process.
County Board members are legally "gagged" from
communicating in a free and open way with concern[ed]
constituents since they may act as judges, but if they do not vote up
16
or down vote on the measure, the permit will be automatically
approved. The pre - hearing silence could result in a total failure
of accountability on the part of Board Members to the concerned
public since their views might always be left in the dark - hidden
under the cloak of a pre-judgment silence .
This is unacceptable to us . It is undemocratic and thwarts our
power as citizens to make elected officials accountable on election
day
.
(Dep. Exhibits Vol . III, Ex. 58, pg
. 3
; emphasis added) . Clearly, PFATW did understand the
restrictions on communications with Board members, and deliberately chose to ignore such
restrictions. Regardless of the restrictions on ex parte contacts, Ms. Converse herself
corresponded extensively with the County Board members
.
(See
Dep. Exhibits Vol . III, Ex. 60,
61, 63, 67). Another member of PFATW testified that "it's part of [the County Board members']
job to know my opinion", and that "[i]t's their job to figure out what they take into
consideration." (Rosson, Dep. 25, 12/4-22) .
Other opponents of the Application communicated with Board members through
ignorance (engendered by the County), rather than malice as in the case of PFATW and HOI
Sierra. PDC deposed Cathy Stevenson, an opponent of the Application who was not specifically
allied with PFATW or HOI Sierra
. Like PFATW and HOI Sierra, Stevenson claimed that she
was permitted to communicate directly with Board members . (Stevenson, Dep . 27, 8/23-9/15).
Stevenson sent several emails to County Board members
. (See Dep. Exhibits Vol . III, Ex. 90A-
F, 92) . In fact, as late as April 18, 2006, Peoria County Administrator Patrick Urich
recommended to Stevenson that she ask questions regarding the Application of her County
Board member, Michael Phelan
. (Dep. Exhibits Vol . III, Ex. 92; Tr. 1/8/07, 47/24-48/18) .
PDC deposed Tom Edwards, the head of the organization named "River Rescue
."
Edwards did not believe that he was prohibited from communicating with County Board
17
members outside the Record . (Edwards, Dep . 22, 33/12-34/3) . In fact, Edwards thought all
written communications with County Board members were permissible, throughout the
Application process. (Id., 35/17-20) . Edwards brought documents with him to his deposition,
including letters dated February 9, 2006, and May 1, 2006, which he stated were mailed to
County Board members . (Id., 30/4-9) . (Edwards refused to leave copies of the letters with PDC
and failed to mail copies of same to counsel, in spite of his promise to do so) . Edwards
additionally authenticated Exhibits 47, 48, 59, 51, 52, 53, 54, 56 and 57, various letters and
fliers, and stated that he mailed or hand-delivered same to the County Board members .
(Id. ;
Dep. Exhibits Vol . III) . Several of the County Board members who voted against approval of
the Application testified that Edwards actually visited them at their homes to distribute
documents . (See Polhemus, Dep . 7, 24/1-5 ; Salzer, Dep . 8, 51/8-20 ; Watkins, Dep . 11, 18/6-11 ;
Williams, Dep . 12, 21/6-10) .
In addition to the foregoing, PDC deposed nine other opponents, who testified to various
and sundry ex parte contacts with County Board members, namely:
•
Tessie Bucklar, Dep . 18 ; Ex . 70-77
•
Tom Bucklar, Dep . 19; Ex. 78
•
Ted Converse, Dep. 21 ; Ex. 96-96
•
John McLean, Dep. 23 ; Ex. 94
•
Jean Roach, Dep. 24; Ex . 86-89
•
Cara Rosson, Dep . 25 ; Ex. 79-85 (briefly quoted above)
•
Amy Schlicksup, Dep . 26
•
Diane Storey, Dep . 28 ; Ex. 44-46
•
Mayvis Young, Dep. 29
Opponents of the Application appeared and spoke at each and every regular County
Board meeting from November, 2005, when the Application was filed, through May, 2006, after
the decision on the Application
. (Hearing Exhibits 97-103) . At the November, 2005, meeting,
Tom Edwards and Sarah Beth Horton spoke . (Ex . 97; Ex. 104, pgs . 1-2) . At the December,
18
2005, meeting, Tom Edwards spoke . (Ex. 98; Ex. 104, pgs . 3-4). At the January, 2006, meeting,
Tom Edwards, Carol Ann Purcell and Mayvis Young spoke . (Ex . 99; Ex . 104, pgs . 5-8). At the
February, 2006, meeting, Tom Edwards, Jean Roach, Janet Kelly, Mayvis Young, Diane Storey,
Nancy Lawless, Kim Converse and Annie Kirchgessner spoke . (Ex . 100; Ex. 104, pgs . 9-14).
During that meeting, Tom Edwards stated as follows regarding the basis for the County Board's
decision on the Application :
And I'm saying I disagree with a lot of the people here . You have
the power to totally say "NO" on this . You don't have to-those 9
criteria-you have to use those,
yes-but you can set as many
more criteria as you want . And if this expansion were put to a
referendum, it would be resoundingly defeated
. I mean by 90 to 95
percent of the voters . Probably the most overwhelmingly majority
in Illinois history
.
(Ex. 104, pg . 9 ; emphasis added) . At the March, 2006, regular County Board meeting, Tom
Edwards and Mayvis Young spoke
. (Ex. 101 ; Ex. 104, pg. 15). Tom Edwards stated as follows
regarding ex parse
communications with the County Board :
Starting [inaudible] by Mr
. Meginnes [counsel for PDC] I cannot
talk ex parte about the hazardous waste landfill and, um, of course
I do everything he tells me to do it, so I won't. Look at him
. He's
smiling. I would rather see him smile . He's a good guy
. I did pass
out this thing to all of you -
this thing I wrote. I think it is one of
my better efforts and shares a message and understanding
- it is
okay to hand out printed material this month and next month, and I
would also like to tell you guys you did a -
I was amazed at the
good job you did -
[inaudible] you carried through very well, and I
think everybody that talked felt gratified and all got a chance to
speak with those that [inaudible] .
(Ex. 104, pg . 15)
. At the April, 2006, meeting, Tom Edwards, Mayvis Young and Diane Storey
spoke . (Ex. 102 ; Ex . 104, pg. 16) .
At the May, 2006, meeting, Tom Edwards and Joyce
Blumenshine spoke . (Ex. 103 ; Ex. 104, pgs
. 17-18) .
19
C.
The votes of eight (8) of the County Board members who voted
against approval of the Application must be stricken
.
Based on their testimony during the depositions, it is clear that the votes of at least eight
(8) of the County Board members who voted against approval of the Application must be
stricken, namely, the votes of G . Allen Mayer (Dep . 3), James Thomas (Dep . 9), Eldon Polhemus
(Dep. 7), Tom O'Neill (Dep . 4), Brian Elsasser (Dep . 1), Michael Phelan (Dep . 6), Phil Salzer
(Dep
. 8) and Lynn Scott Pearson (Dep
. 5).
1 & 2. G. Allen Mayer and James Thomas
Board members Mayer and Thomas concealed their membership with the Sierra Club (a
registered opponent group represented by counsel during the proceedings on the Application)
until directly asked about such membership at the last County Board meeting, on May 3, 2006
.
Prior to the May 3, 2006 meeting, PFATW and HOI Sierra filed a motion seeking to bar Board
member William Prather from voting on the Application, because he had previously sold
property to an affiliate of PDC in Chillicothe, Illinois .
The County denied the Motion of
PFATW and HOI Sierra, and made a general inquiry into the bias of the Board members . In
fact, it was the Chair of the Siting Hearing Subcommittee, Board member Patricia Hidden, who
asked whether any County Board members were members of the Sierra Club
:
MR. ATKINS : And at this point I have a question that I'm going to
direct to all of the Board members . Since there has been a question,
directly an objection regarding Mr
. Prather and there have been
some allegations regarding some contacts that other Board
members have had with other individuals, I'm going to ask all of
you whether you can be fair and impartial and make your decision
based solely on the evidence that has been presented in the hearing
process and in the documents that have been submitted for public
comment or in the public comment period .
So is there anyone here who thinks, any of the Board
members who think that there is anything that would bias your
decision? If any of you feel that there is any reason that you would
20
be unable to decide based solely on the evidence presented to you,
then I'd ask for you to point that out at this time .
CHAIRMAN WILLIAMS : Pat?
MS. HIDDEN: Can I ask you a question first?
MR. ATKINS : Sure .
MS. HIDDEN
: How many of the County Board members are also
members of the Sierra Club?
MR. ATKINS
: I don't know that, but if you think that that's
something that would sway a member, then we can certainly ask
that .
MS . HIDDEN : I think it would be pertinent to find out how many
are .
CHAIRMAN WILLIAMS : Is there any members of the County
Board a member of the Sierra Club?
(Show of hands.)
CHAIRMAN WILLIAMS : We have two.
(See Tr
. 5/3/06, 23/12-25/4, C13717) . Those two covert Sierra Club members were Mayer and
Thomas . (See Tr . 5/3/06, 25/10-12, 29/9-10, C13717-18) .
3
. Eldon Polhemus
Eldon Polhemus admitted that he considered none of the evidence submitted during the
proceedings on the Application, or the Application itself
. (Polhemus, Dep. 7, 19/2-21/8).
Instead, Polhemus made his decision based on contacts with opponents and his straw poll of the
community's opinion regarding the Application :
Q [by Ms
. Nair] Did you believe you were to rely on those
findings of fact in coming up with your decision?
A No. I believed if they met what my reasons were because the
findings of fact really never meant anything to me until after the
21
vote
. After the vote was over, then I was -- I was satisfied that the
findings of fact would match the reason to deny.
Q So you had independent reasons?
A Yes.
• What was your understanding for what information you should
gather to come up with that decision, your independent reasons for
denial?
A I will tell you I make a lot of my decisions yes and no on
important votes like that by the, what do you say, the information I
acquire from these letters and things like that because I don't go
out and go to parties and stuff like that .
•
So by those letters, do you mean the letters that you were
getting at your home from members of the public?
A Yes.
•
So it was your -- so you considered the information that you
received at your home?
A No. I -- the only way I considered the letters and that I got
was I used it like a tally sheet . If I got 100 letters and 80 or 90 of
them were against it, I felt that's the way the public felt, that's the
way
-- I was supposed to represent the public, too .
We've had many decisions on different things, and my decision
hasn't been wholly on letter count, but I consider that a good part
of my reasoning.
(Id., 36/16-38/1 ; see also id., 10/16-19, 15/9-17, 22/16-22
; Exhibit 104, pg . 18, Peoria County
Board Meeting : May, 2006).
4. Tom O'Neill
Tom O'Neill first voted in favor of the Application on April 6, 2006, with the Committee
of the Whole, and on May 3, 2006, voted against approval of the Application
. (O'Neill, Dep . 4,
24/8-21). O'Neill admitted to the local newspaper that his vote against approval of the
Application was based on the opinion of his constituents (Dep . Exhibits Vol . II, Ex
. 30),
22
however, during his deposition, O'Neill alleged that he was misquoted, and that he did not say
that he changed his mind based on the wishes of his constituents (O'Neill, Dep
. 4, 23/15-23)
.
O'Neill admitted that he considered none of the evidence submitted during the proceedings on
the Application, or the Application itself
(id
., 26/13-27/5, 37/21-38/2), and that he had received
communications from opponents between the April 6 and May 3 votes
(id., 24/22-25/2, 25/17-
26/3)
. Nevertheless, O'Neill baldly denied that any communications he received between the
meetings caused the change in his vote
. (Id., 27/10-23) . His protests to the contrary, it is crystal
clear to a neutral third party that O'Neill's vote on May 3, 2006, was based on information
outside the Record in this case, between April 6, 2006, and May 3, 2006
.
5 . Brian Elsasser
Brian Elsasser predetermined his position regarding the Application
. (Elsasser, Dep . I,
22/18-21, 23/8-12 (communication with Board member Trumpe), 27/11-28/4 (father's illness) ;
Tr. 4/6/06, 104/10-105/15, C13436) .
Elsasser performed his own research during the
proceedings on the Application
: (1) Elsasser contacted Dean Faulkner of the Illinois American
Water Company in March of 2006, "just trying to get an idea of what his opinion was on where
the aquifer was really located at" (Elsasser, Dep
. 1, 25/6-26/7) ; (2) Elsasser called the Illinois
Environmental Protection Agency, because he "was still confused about the PM and the PMIO
test, and they finally clarified the fact that your license does not require you to be a specific level
for the PM10 test but only for the particula[te] matter" (id., 26/13-22) .
Finally, while Elsasser did not testify regarding same, Kim Converse, leader of the
opposition group PFATW, testified that Elsasser phoned her immediately before or after the
April 6, 2006 vote of the Committee of the Whole, in order to get the telephone number of Cindy
Herman, another opponent to the Application. (K . Converse, Dep . 20, 36/4-37/12) .
23
6. Michael
Phelan
Michael Phelan clearly did not understand his role in the proceedings, or that he was not
to consider ex pane
communications in reaching his decision
. (Phelan, Dep . 6, 7/3-16)
. Phelan
testified that the public was permitted to "weigh in" publicly and privately
(id., 7/21-8/7), and
that he could consider "facts" from outside the record
(id., 8/23-9/20)
. Phelan's vote against
approval of the Application was clearly based on information outside the Record in this case
.
7. Philip Salzer
Phil Salzer also did not understand his role in the proceedings, or that he was not to
consider ex pane
communications in reaching his decision
. (Salzer, Dep . 8, 14/20-15/4)
. He
further stated that he actually considered the communications he received at his home in forming
his decision on the Application, after weeding out the "crackpot" communications
. (Id. 12/9-
13/12, 17/1-18/1)
. Moreover, Salzer considered information digested and conveyed outside the
Record
; in particular, he sought factual analysis and scientific opinion from his fellow Board
member G
. Allen Mayer (a member of the opponent group, the Sierra Club)
: "I had a question
about the hydraulically connected, hydraulically connected the
-- to the Sankoty [aquifer]
." (Id.,
25/18-26/12, 27/3-7, 28/13-18 ; see also
id., 29/18-30/13) .
Salzer's decision to vote against
approval of the Application was clearly based on information outside the Record in this case
.
Also, Salzer appears to have predetermined his position regarding the Application, without
regard to the evidence
. (Pearson, Dep
. 5, 21/3-11 ; see also Dep
. Exhibits Vol
. II, Ex. 25, pg. 5,
"I'm 67
. Do I want to Be Remembered as one Who Caused this?")
.
8. Lynn
Scott Pearson
Lynn Scott Pearson clearly did not understand that she was not to consider
ex pane
communications in reaching her decision, admitting that she thought she was supposed to
24
consider information gleaned from ex parte communications. (Pearson, Dep . 5, 23/21-24/9,
24/16-25/14) . Moreover, Pearson admitted that she placed special value on the opinion of Joyce
Blumenshine, then Chair of opponent group HOI Sierra, specifically because of Ms.
Blumenshine's affiliation with that organization
. (Id.,
32/7-9) . Pearson's decision to vote
against approval of the Application was clearly based on information outside the Record in this
case.
IV.
FACTS SUPPORTING ARGUMENT THAT THE PURPORTED
DECISION OF THE COUNTY WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, ANDWAS OTHERWISE IMPROPER
UNDER THE LAW .
A.
Criterion is the facility is necessary to accommodate the waste needs
of the area that it is intended to serve .
Testimony on the need for the proposed expansion was provided by Sheryl Smith, a
Senior Project Manager with Golder Associates of Columbus, Ohio
. (Tr. 2/21/06, 112, C7295;
hearing exhibit A-1, C7937). Ms . Smith has a Master's Degree in Engineering from Cornell
University and 23 years of experience in the waste management industry, both as a consultant
and for waste management companies . (Hearing exhibit A-1, C7937) . She has participated in
the preparation of needs assessments in 23 siting applications
. (Tr. 2/21/06, 113, C7295).
Ms. Smith indicated that the existing PDC landfill is projected to close in 2008
. (Tr.
2/21/06, 114, C7296) . The proposed expansion anticipates receipt of an average of 150,000 tons
of waste per year, of which 90,000 tons are hazardous wastes, 20,000 tons are non-hazardous
manufactured gas plant remediation waste and 40,000 tons are non-hazardous process waste
(special waste) .
(Id.) The expansion would extend the facility's life for another 15 years, from
2009 to 2023 . (Id.)
25
Because of the three distinct waste types received at the facility, there are three distinct
service areas designated.
1 . Hazardous waste service area .
The hazardous waste service area consists of Illinois and nine surrounding states, from
Nebraska on the West, to Minnesota on the North and Tennessee on the South . (Tr. 2/21/06,
117, C7296)
. With regard to hazardous waste generation, the most current, complete data set
available at the time that Ms
. Smith prepared her report was the 2001 data set . (Tr. 2/21/06, 120,
C7297)
. The service area is projected to generate 9 .9 million tons of hazardous waste over the
15 year service life of the expanded landfill . (Tr. 2/21/06, 121, C7297) . PDC is the only active
hazardous waste landfill in the designated service area
. (Tr. 2/21/06, 122, C7298) . Ms. Smith
computed that 14 other hazardous waste landfills outside the service area provided about 3
.49
million tons of capacity for the service area
. (Tr. 2/21/06, 123, C7298) . She also looked at
hazardous waste incinerators, which would provide minimal additional capacity, as well as
treatment and recycling facilities, which also would provide some additional capacity
. (Tr.
2/21/06, 123-124, C7298)
.
Taking into consideration the hazardous waste generation of the proposed service area
during the operating life of the expansion and subtracting capacity from all other facilities
available to the service area (i.e ., incineration, treatment, recycling and diversion to non-
hazardous waste landfills), Ms
. Smith concluded that the hazardous waste service area has a
projected capacity shortfall of 2 .2 million tons . (Tr
. 2/21/06, 127/22-128/3, C7299) .
2. Manufactured pas plant remediation waste service area
.
Ms
. Smith identified the service area for the manufactured gas plant
("MGP")
remediation waste as the State of Illinois
. (Tr. 2/21/06, 117, C7296) . The State of Illinois, as of
26
2003, had identified 132 manufactured gas plant sites that required remediation and cleanup
.
(Tr. 2/21/06, 117, C7296)
. These facilities typically operated from the late 1880's to the mid-
1950's. (Tr
. 2/21/06, 116, C7296) .
Based upon a historic average of 12,000 tons of waste
generated per MGP site cleanup, Ms
. Smith projected the future need for disposal capacity of
1,090,000 tons of manufactured gas plant waste . (Tr
. 2/2106, 121, C7297)
. Ms. Smith explained
that this waste stream is technically non-hazardous, but in Illinois, is required to be disposed of
in a hazardous waste facility . (Tr
. 2/21/06, 115,116, C7296)
. Hence, the PDC No
. 1 Landfill is
the only facility in the State of Illinois which can receive manufactured gas plant remediation
waste. (Tr
. 2/21/06, 115, C7296)
. Without the proposed expansion of the facility, the disposal
capacity shortfall for manufactured gas plant remediation waste is, therefore, equal to the amount
of waste expected to be generated .
3. Non-hazardous
process waste service area
.
The third service area identified by Ms
. Smith is for non-hazardous process waste, an
area consisting of Peoria County and five surrounding counties in Central Illinois
. (Tr. 2/21/06,
118, C7297) .
To project waste generation within this service area, Ms
. Smith looked at the
population projections for the service area for the time period 2009 through 2023, and the solid
waste management plans for the counties in the service area (to determine past special waste
generation rates), as well as the recycling goals within those counties
. (Tr. 2/21/06, 120, 121,
C7297)
. The results of that analysis demonstrated that non-hazardous process waste generation
within the service area over the life of the proposed expansion, taking recycling into account,
would be 2 .3 million tons
. (Tr
. 2/21/06, 128/10-12, C7297)
. To calculate the disposal capacity
available to the six-county non-hazardous process waste service area, Ms
. Smith looked at all of
the landfills within the service area and all other landfills within 100 miles of the service area
.
27
(Tr. 2/21/06, 125, C7298)
. The resulting difference between projected generation and available
disposal capacity showed a net shortfall in the service area of 995,000 tons . (Tr
. 2/21/06, 125,
C7298).
Ms
. Smith concluded that, even with the proposed expansion, there will still be a
significant disposal capacity shortfall for all three types of waste received by PDC
. The most
significant impact of this shortfall will be on Peoria County generators, including Keystone Steel
and Wire, which generates electric arc furnace dust (RCRA hazardous waste code K061)
disposed of at PDC, and Caterpillar, which generates non-hazardous process waste disposed of at
PDC . (Tr. 2/21/06, 129, C7299) . For the foregoing reason, Ms . Smith concluded that the
proposed expansion is necessary to accommodate the waste needs of the areas it is intended to
serve.
No other witnesses testified under oath regarding the need for the proposed facility,
although many members of the public made unsworn statements that Peoria County does not
need and they did not want waste from other counties and other states .
B.
Criterion ii
: the facility is so designed, located and proposed to the
operated that the public health, safety and welfare will be protected .
1 . Facility overview .
Ron Edwards, Vice-President of Development and Operations, was the first witness for
PDC . Mr. Edwards has 23 years of experience in the management of solid and hazardous waste
;
he is the past chairman of the technical committee of the Illinois Chapter of the National Solid
Waste Management Association . (Hearing exhibit A-1, C7936)
. He has served on the Illinois
Environmental Protection Agency ("IEPA") and Illinois Pollution Control Board committees to
develop solid waste landfill regulations and he is a licensed landfill operator
. (Tr. 2/21/06, 31,
C7275) .
28
PDC was founded in 1928 and has operated continuously in Peoria County through 4
generations since that time
. (Tr. 2/21/06, 32, C7275) . PDC's first solid waste landfill was
permitted in 1968, and began operations in the management and disposal of hazardous waste in
1980. (Tr. 2/21/06, 32-33, C7275) . Today, PDC operates multiple companies in Peoria County
including PDC Laboratories, PDC Transportation, PDC Technical Services and the PDC No . 1
Landfill . (Tr. 2/21/06, 34, C7276) . The existing hazardous waste landfill services many local
businesses, including Caterpillar, Keystone, and John Deere . (Tr. 2/21/06, 37, C7276) .
The PDC No. 1 Landfill consists of multiple units, some of which are closed and not the
subject of the Application . Area C is the active portion of the facility. (Tr. 2/21/06, 38, C7277) .
In its Application, PDC seeks to vertically expand over trenches Cl through C4
. (Tr. 2/21/06,
38-39, C7277)
. PDC also seeks a lateral expansion of 8 .2 acres in the form of the new trench :
C5 . (Tr. 2/21/06, 39, C7277) . The expansion would extend the facility's operating life by an
additional 15 years . (Tr. 2/21/06, 39-40, C7277) .
George Armstrong, Vice-President of PDC Technical Services, a professional engineer
with a Master's Degree in Geo-Technical Services from the University of Illinois, testified in
greater detail regarding the site location and the dimensions of the proposed expansion
. (Tr .
2/21/06, 188, C7314 ; see hearing exhibit A-1, 7949-53)
. The proposed site is approximately 1 .3
miles from the boundary of the Pleasant Valley Public Water District regulated recharge area
.
(Tr
. 2/21/06, 192, C7315). The existing facility consisting of trenches Cl through C4 is only
32
.4 acres in area, with a design capacity of 2 .6 million cubic yards . (Tr
. 2/21/06, 199, C7317) .
The proposed expansion would add an additional 2 .47 million cubic yards of air space
. (Tr.
2/21/06, 200, C7317).
29
Both the existing site and proposed expansion area are extensively buffered on all sides,
insulating it from surrounding neighbors . (Tr. 2/21/06, 196, C7316) . These buffers include
steep, heavily wooded and vegetated natural relief on both the East and West sides, as well as
300 acres of surrounding property owned by PDC, which property is not planned to be
developed. (Tr. 2/21/06, 196, C7316) . Mr. Armstrong pointed out that, in pre-filing meetings
with local homeowners' groups in the area, many of PDC's neighbors replied that they did not
even know that the facility existed. (Tr
. 2/21/06, 197, C7316) .
The proposed expansion only seeks to continue the existing operation for an additional 15
years.
(Tr. 2/21/06, 39-40, C7277) . The facility receives permitted, solid hazardous waste,
consisting primarily of certain metal-bearing materials
. (Tr. 2/21/06, 46, C7279) . The facility
does not receive wastes which are ignitable, reactive or corrosive
. (Tr. 2/21/06, 63, C7283) .
PDC only accepts 8 of the 40 types of wastes exhibiting the characteristic of toxicity . (Tr
.
2/21/06, 48, C7279). These metal bearing wastes are treated by chemical stabilization so that the
toxicity characteristic is removed and only a non-hazardous waste residue is disposed in the
landfill . (Tr. 2/21/06, 48, C7279) .
PDC is also permitted to and accepts certain listed hazardous wastes such as electric arc
furnace dust. (Tr. 2/21/06, 49, C7279) . All of this waste must be treated to meet Federal and
State land disposal restrictions ("LDRs"). (Tr. 2/21/06, 53, C7280) . Most of the LDRs that are
applicable to the PDC No
. 1 Landfill are more stringent than the concentrations allowed in
wastes characterized as "non-hazardous ." (Tr
. 2/21/06, 54, C7281) . PDC's existing operating
permit as well as State and Federal land disposal restrictions require that characteristic waste
must be rendered non-hazardous prior to disposal and listed waste must be treated to ensure no
migration into the environment . (Tr
. 2/21/06, 53, C7280). As a result, the toxicity of all waste
30
placed into the PDC landfill after treatment has been reduced to less than non-hazardous waste
toxicity levels . (Tr
. 2/21/06, 54, C7281)
. As a result, leachate generated at PDC, based upon
years of analysis approved by the IEPA, is not significantly different and, in many cases, is less
toxic than the leachate generated at municipal solid waste landfills
. (Tr
. 2/22/06 (Liss), 38,
C7369) .
Kenneth Liss, a licensed professional geologist, with twenty-two (22) years of
experience, including fourteen (14) years working for the IEPA and now Director of
Environmental Services at Andrews Environmental Engineering, explained that past testing has
demonstrated that leachate generated at PDC was particularly low in organic compounds
. (Id. ;
see also
hearing exhibit A-1, C7954-56)
.
He explained that this is the result of (1) PDC's
decision not to accept liquids and organics, (2) the fact that PDC's waste streams are primarily
metal-bearing wastes and contain only low concentrations of organic compounds, and (3) the fact
that PDC treats all of its hazardous wastes to meet non-hazardous or LDR standards
. (Tr.
2/22/06, 39, C7369).
2. Geologic
and hydrogeologic setting.
George Armstrong testified regarding the geologic setting in which the site is located
. He
pointed out, initially, that because of the multiple past expansions and permitting procedures, the
site has been extensively studied
. (Tr
. 2/22/06, 19-21, C7364) .
There have been 259 soil
borings and monitoring wells at the site, 55 of which were drilled proximate to the expansion
area. (Tr
. 2/22/06, 20, C7364)
. Hundreds of samples of soil materials have been tested in a
laboratory for hydrogeologic and geotechnical properties
. (Id.)
This has included permeability
testing and strength testing .
(Id.)
Sixty piezometers have been installed, 27 of which continue to
be actively monitored . (Tr
. 2/22/06, 20-21, C7364) .
PDC conducted more than 30 field
31
hydraulic conductivity tests in the form of both packer tests and slug tests in the geologic
materials underlying the site. (Tr. 2/22/06, 21, C7364) . PDC, in preparing its Application,
analyzed more than 21 years of water level measurements at the site and over 21 years of water
quality measurements .
(Id.) Over 2,000 groundwater samples were previously analyzed . (Tr.
2/22/06, 21-22, C7364-65) .
The geologic materials at the site consist of silty clay with occasional discontinuous sand
lenses, immediately underneath the facility
. (Tr. 2/22/06, 23, C7365). The clay is unweathered
beneath the landfill invert and can be described as competent and massive
. (Id.) There is no
evidence of fractures or joints in the clay (also known as the upper till)
. (Id.) The minimum
thickness of the upper till, beneath the existing and proposed landfill floor is 34 feet and the
average thickness is 55 feet . (Tr. 2/22/06, 22-24, C7365)
. The till is unsaturated and, most
significantly, exhibits a permeability three times lower
than the minimum standard for
recompacted engineered clay landfill liners . (Tr. 2/22/06, 24, C7365) .
Beneath the upper till is the lower sand, a unit between 90 and 100 feet thick, which lies
atop the Pennsylvanian shale bedrock . (Tr. 2/22/06, 25-26, C7365-66)
. This unit is different
from the Sankoty aquifer, lacking the distinctive pink quartz grains and being 15 to 800 times
less permeable than the Sankoty sand. (Tr. 2/22/06, 26, C7366)
. The upper 50 feet of the sand
unit is dry
; the lower 40 to 50 feet is saturated and constitutes the uppermost aquifer
. (Tr.
2/22/06, 24, C7365).
Beneath the site, the average groundwater flow velocity is less than 10 feet per year
. (Tr.
2/22/06, 27 & 29, C7366)
. Groundwater flow is from the northwest to the southeast
. (Id.)
The PDC property line is 500 feet down-gradient from the proposed waste boundary
.
(Tr. 2/22/06, 27, C7366)
. The nearest down-gradient water well is 3,000 feet away from the
32
landfill boundary . (Tr. 2/27/06, 80, 81, C7796) . The nearest active community water supply
well that is down gradient of the site is 1 .6 miles away . (Tr. 2/22/06, 17-18, C7363-64) . This
well is operated by the Pleasant Valley Public Water District which, in the early 1990's,
conducted an extensive engineering study to assess potential threats to their water supply . (Tr.
2/22/06, 18-19, C7364) . The study was part of the establishment of the Pleasant Valley Public
Water District as the only regulated recharge area in Illinois . (Tr. 2/22/06, 19, C7364). The
study identified 25 facilities as potential hazards to groundwater quality within the regulated
recharge area. The PDC landfill was not one of those facilities identified and was given a hazard
ranking of zero . (Id.)
3. Facility design .
George Armstrong also detailed the facility design, pointing out that all elements of the
existing facility and proposed expansion meet the strict RCRA Subtitle C standards for
hazardous waste containment
. (Tr . 2/21/06, 204 C7318) . The basic liner system consists of
three (3) feet of recompacted clay, overlain by an 80 mil HDPE geomembrane, overlain by a
drainage layer, overlain by a second HDPE geomembrane, overlain by the primary leachate
collection system which is finally overlain by a filter layer . (Tr. 2/21/06, 204-206, C7318-19) .
(This is commonly known as a double-composite liner system) . Mr. Armstrong pointed out that
the 80 mil HDPE geomembranes exceed
minimum State and Federal standards by one-third
(1/3). (Tr
. 2/21/06, 204-05, C7318) . Trenches C2 through C4 and the proposed C5 add a
geocomposite clay liner sandwiched between the upper 80 mil geomembrane and a third HDPE
geomembrane in the liner system with a thickness of 60 mil. (Tr
. 2/21/06, 207, C7319).
Additionally, the design incorporates both primary and secondary leachate collection
systems, which are isolated from each other
. (Tr. 2/21/06, 209, C7319) .
33
The final cover will consist of 18 inches of recompacted clay overlain by a 60 mil HDPE
geomembrane, overlain by a drainage system, and topped by three (3) feet of vegetative soil .
(Tr. 2/21/06, 225, C7323). The final cover will have drainage terraces as part of an extensive
storm water runoff system, designed to keep precipitation from infiltrating the waste . (Tr.
2/21/06, 226-27, C7324) .
Additional features of the storm water control system include
perimeter channels, fabric form concrete letdown channels, mild slopes and a large, over-
designed sedimentation basin to prevent erosion . (Tr. 2/21/06, 220-227, C7322-24) .
Because the facility does not accept putrescible waste and organic waste, a landfill gas
management system is not necessary . (Tr. 2/21/06, 230, C7325)
. Testing at the existing gas
vents detected negligible amounts of gas, and demonstrated that no air pollution comes from the
landfill
. (Tr. 2/21/06, 231, C7325) .
Mr. Armstrong described, in great detail, the extensive construction quality assurance
program, ("CQAP") which regulates the construction and development of the facility
. (Tr.
2/21/06, 213-18, C7320-22) . The CQAP developed by PDC must conform to the stringent
standards of the IEPA and United States Environmental Protection Agency ("USEPA") . (Tr.
2/21/06, 213, C7320) .
The CQAP requires the presence of an independent, licensed,
professional engineer onsite, who monitors construction progress and tests various elements of
the engineered liner system
. (Tr. 2/21/06, 214, C7321) . A "practice" recompacted liner must be
constructed with a large scale permeability test performed thereon
. (Tr. 2/21/06, 215-16,
C7321)
. 100% of the HDPE geomembranes' welded seams must be tested to ensure integrity
.
(Tr. 2/21/06, 219, C7322)
.
34
4. Performance
evaluation and groundwater impact assessment .
Mr. Armstrong emphasized that the Federal RCRA regulations have been established for
hazardous
waste landfill liner and final cover design to essentially ensure safe waste containment
at virtually any location with stable geologic conditions . (Tr. 2/22/06, 10, C7362). Despite the
Federal government's exacting specifications, the specific design proposed for the expansion was
itself subjected to extensive computer simulation to model its performance in the specific
geolologic setting where the site is located . (Tr. 2/22/06, 11-12, C7362). He emphasized that
both past experience in the existing disposal cells and computer modeling demonstrate that the
maximum accumulation of leachate on the bottom liner would be less than one-tenth (1/10) of
one inch . (Tr. 2/22/06, 10-11, C7362) . This is significantly less than the maximum head of
leachate allowed by regulations : twelve (12) inches .
The performance of the final cover system was also modeled and demonstrated that only
0.025 inches of precipitation will infiltrate through the final cover in the 100 year post-closure
period. (Tr. 2/22/06, 11, C7362) . Geotechnical analysis of the landfill and its components
demonstrates that the facility will be stable, even during extreme, very rare earthquake loading .
(Tr. 2/22/06, 12, C7362)
.
A complete groundwater impact evaluation (the kind required by the IEPA for
permitting, but not required for local siting approval, pursuant to 35 II1 .Adm .Code §811 .317) was
performed by Dr. Larry Barrows . (Tr. 2/22/06, 72, C7377) . Dr. Barrows has his doctoral degree
in geophysics ; he has engaged for over 30 years in various types of environmental studies ; he has
worked for the Department of Energy ; he has performed a study of geophysical surveying of
hazardous waste sites for the USEPA and he has taught graduate courses in hydrogeology at
Illinois State University . (Tr. 2/22/06, 72, C7377; see also hearing exhibit A-1, C7957-58) . He
35
is currently employed at
Andrews Environmental Engineering,
and has conducted
nine
groundwater impact assessments in his six years there
. (Id.)
He is an Illinois licensed
professional geologist . (Id.)
The purpose of Dr
. Barrows' study was to determine the likely impact, if any, that the
proposed expansion would have on groundwater quality
. He started by using the abundant site-
specific data to develop a conceptual model of groundwater flow at the proposed site
. (Tr.
2/22/06, 73, C7377). Dr
. Barrows described the hydrogeology at the site as "simple
." (Tr.
2/22/06, 75, C7378)
. Dr
. Barrows identified the lower sand underneath the site as side valley
outwash facies of the Sankoty formation, distinct from the Sankoty sand and one or two orders of
magnitude less conductive than the Sankoty sand
. (Tr
. 2/22/06, 75-76, C7378)
. Dr. Barrows
confirmed the fact that the upper clay till and the top half of the lower sand are unsaturated and
that groundwater flow in the uppermost aquifer is to the southeast
. (Tr
. 2/22/06, 76, C7378) .
For purposes of his groundwater impact assessment, Dr
. Barrows identified the compliance
boundary as being only 50 feet down gradient from the landfill
. (Tr. 2/22/06, 77, C7378) .
Using approved computer modeling techniques, Dr
. Barrows generated a solute
prediction factor at the compliance boundary . (Tr
. 2/22/06, 77, C7378)
. He explained that, even
though the regulations require a demonstration of no groundwater impact for 100 years, he,
arbitrarily, decided to run the model out to 500 years
. (Tr
. 2/22/06, 77, C7378) .
Dr
. Barrows made a number of conservative assumptions in his groundwater impact
assessment, perhaps the most conservative being that the system only had a
single
liner, rather
than a double-
and in some places
triple-composite liner system
. (Tr
. 2/22/06, 79-80, C7379).
The various computer models used in the assessment included the H
.E .L.P
. Model, used to
predict leachate flux through the liner system, VS2DT (developed by the U
. S
. Geologic Survey)
36
to model solute travel in the unsaturated zones, and MODFLOW/MT3D (a three-dimensional
flow and contaminant transport model) to simulate solute travel once it reaches the water table .
(Tr. 2/22/06, 79-83, C7379-80)
.
Dr. Barrows concluded that, even after 500 years, the proposed expansion would have no
negative impact on groundwater quality and that the concentration of all leachate constituents at
the compliance boundary would be within drinking water standards . (Tr. 2/22/06, 89-90, C7381-
82). Dr. Barrows also performed extensive sensitivity analyses where he varied the values of
different input parameters to see if that would change the model outcomes . (Tr. 2/22/06, 85,
C7380)
. Using all possible, reasonable values for input parameters, Dr. Barrows was unable to
demonstrate any negative impact on groundwater quality 50 feet from the landfill boundary, 500
years after facility closure . (Tr. 2/22/06, 85-86, C7380-81) . Dr. Barrows concluded that the
naturally occurring processes of biochemical decay, sorption, and partitioning would further
reduce contaminant concentrations in groundwater (though he, conservatively, did not even
consider these factors in his analysis). (Tr. 2/22/06, 89, C7381)
.
5. Peer
review by Dr. Daniel.
The extensive site characterization and proposed design analyses described above were
peer-reviewed by Dr . David Daniel, former Dean of the College of Engineering at the University
of Illinois, now President of the University of Texas, at Dallas . (See hearing exhibit A-1, C7959-
74). Dr
. Daniel has authored 5 or 6 textbooks, nearly all of them dealing with waste disposal
design, remediation, lining and final covers . (I_d_.; Tr
. 2/22/06, 96-97, C7383) . Dr. Daniel was
the first person in the United States to develop a course in landfill design for engineering
students . (Tr
. 2/22/06, 94, C7383). Dr. Daniel has consulted on about 20 hazardous landfill
projects over the years, generally on behalf of government agencies
. (Tr. 2/22/06, 95, C7383) .
37
Dr. Daniel's specialty is the containment of waste and the design of engineering systems oriented
toward containment . (Tr. 2/22/06, 95, C7383) . Dr. Daniel performed the definitive study for the
EPA on the actual field performance of landfills and waste containment systems . (Tr. 2/22/06,
96, C7383) . Dr. Daniel co-authored the EPA's manual on how to build landfills, as well as the
report on proper procedures for inspection and verification of construction of landfills
. (Tr.
2/22/06, 96, C7383) . At the time of his testimony, Dr . Daniel was Chairman of the Committee
of the American Society of Civil Engineers studying the reasons for the failure of the New
Orleans levee system during Hurricane Katrina, at the request of the U.S . Secretary of Defense .
(Tr. 2/22/06, 93-94, C7382-83) .
Dr. Daniel opined that modem technology has solved the problem of groundwater
contamination and, that to his knowledge,
there has not been a single facility built according to
modem standards and regulations that has caused groundwater contamination . (Tr. 2/22/06, 101,
C7384)
.
Dr
. Daniel added that because of the extensive screening and treatment of waste
disposed of in modern hazardous waste landfills, the leachate from these landfills tends to be less
threatening than leachate from most municipal solid waste landfills . (Tr
. 2/22/06, 101-102,
C7383-84) . Dr. Daniel also pointed out that the standards for liner systems in hazardous waste
landfills are designed to render the facilities fully protective of the environment, regardless of the
geologic setting . (Tr. 2/22/06, 103, C7385)
. At the proposed expansion, the thick layer of clay
separating the landfill from the water table is an important additional protective feature, both
because of its low permeability and because of its ability to chemically attenuate the metals
which form a significant portion of the PDC waste stream
. (Tr. 2/22/06, 103, C7385) . Dr.
Daniel described the underlying clay as being like a metallic sponge .
(Tr. 2/22/06, 103-104,
C7385).
38
Dr. Daniel described the landfill design as using an established technology, one that has
been proven to work . (Tr. 2/22/06, 108, C7386) . Dr. Daniel opined that the geomembranes in
the liner system could be expected to lose one-half of their strength in 300-500 years and slowly
degrade thereafter over periods of hundreds to thousands of years. (Tr. 2/22/06, 110, C7387).
On the other hand, the recompacted clay at the base of the liner is the most stable element of the
system. (Tr. 2/22/06, 111, C7387)
. The weight of the waste above this liner tends to compact
and compress it and make it even less permeable over time . (Tr. 2/22/06, 111, C7387) . The
liquids that move through this clay liner tend to drive permeability down and biodegradation of
leachate in the clay tends to get better over time
. (Tr. 2/22/06, 111, C7387) . In one thousand
years, Dr. Daniel would expect the geomembrane components of the liner system to be
substantially degraded, while the recompacted clay would be present and functional . (Id.)
Dr. Daniel also evaluated the final cover design and concurred that the modeling
projections of one-quarter inch of precipitation infiltration per century are reasonable and
realistic
. (Tr
. 2/22/06, 113, C7387)
. Dr. Daniel likened this amount of infiltration to running a
sprinkler system on a lawn for 15 minutes . (Tr
. 2/22/06, 114, C7388) .
Dr. Daniel pointed out that studies demonstrating the permeability of HDPE
geomembranes to organic chemicals are not applicable because organics are not present in
sufficient concentration in hazardous waste landfill leachate to pose a threat to geomembranes
.
(Tr. 2/22/06, 117, C7388) .
Dr. Daniel concluded that the facility and proposed expansion are so designed, located
and proposed to be operated that the public health, safety and welfare would be protected
. (Tr.
2/22/06, 121, C7389) . Dr
. Daniel would have no concern about the proposed expanded facility if
39
he were a resident of the community, or for future generations of citizens in the community . (Tr.
2/22/06, 122, C7390).
6. Groundwater
monitoring and monitoring history .
Kenneth Liss, one of the first professional geologists licensed in Illinois, testified
regarding the groundwater monitoring program at the facility and analyzed the results of past
groundwater monitoring
. (Tr . 2/22/06, 32, 33, C7367) . Mr. Liss is the Director of
Environmental Services and manager of the Springfield office of Andrews Environmental
Engineering. (Tr. 2/22/06, 32-33, C7367 ; see also hearing exhibit A-1, C7954-56) . Mr. Liss has
14 years of experience in the permit section of the IEPA and was Vice-Chairman of the first
board which licensed professional geologists in Illinois
. (Id.)
Andrews Environmental Engineering performed an independent review of the site data,
including a great deal of information previously submitted to the IEPA and other published
sources. (Tr. 2/22/06, 33, C7367) . Mr
. Liss agreed with PDC's characterization of the site's
geologic and hydrogeologic conditions . (Tr. 2/22/06, 36, C7368) .
Mr
. Liss pointed out that past groundwater monitoring demonstrates that leachate quality
at the facility has improved over time . (Tr. 2/22/06, 43, C7370) .
The leachate is high in
naturally occurring salts, but does not contain high concentrations of toxic hazardous
constituents
. (Tr. 2/22/06, 43-44, C7370). Mr
. Liss explained how groundwater monitoring
involves comparing the quality of samples taken in down gradient monitoring wells with samples
from upgradient wells where the groundwater would not have passed underneath the facility
.
(Tr. 2/22/06, 45, C7370)
. Mr. Liss described the three sequential and increasingly serious
components of groundwater monitoring as being detection monitoring, compliance monitoring
40
and corrective action monitoring. (Tr. 2/22/06, 45, C7370) . Groundwater monitoring at the site
has generated over 10,000 analytical results over the past 21 years
. (Tr. 2/22/06, 47, C7371).
Low level organic compounds have been detected in wells near PDC's northeastern
property corner, more than 1,000 feet upgradient or sidegradient of the proposed expanded
landfill area . The IEPA has agreed that these low level organics do not originate from the PDC
landfill, rather an offsite source is suspected
. (Tr
. 2/22/06, 47, C7371)
. In the case of the other
possible past monitoring exceedences, PDC has always complied with the IEPA rules and
demonstrated through investigation to the satisfaction of the IEPA, that the landfill was not the
cause. (Tr. 2/22/06, 49, C7371). For example, high zinc levels at some monitoring locations in
the past were attributed to the use of galvanized metals in the wells, and the levels dropped to
normal when PDC replaced these with stainless steel wells . (Tr. 2/22/06, 50, C7372). PDC has
never been required to move to the corrective action phase of monitoring and the groundwater at
the site is in full compliance with the IEPA and USEPA standards
. (Tr. 2/22/06, 50, C7372).
The facility remains in detection monitoring mode, "which is the best place to be
." (Id.)
There has been significant controversy regarding chloride levels in a few of the
monitoring wells and whether they possibly represent evidence of leachate releases from the
existing facility
. No one, not even the opposition expert, testified that any chloride level in any
monitoring well represented a release of leachate from the facility
. The evidence was to the
contrary (as is set forth below) . The controversy regarding chloride stems from a comment in
the County Staff Report that "geochemical fingerprinting shows that there is a possibility of
chloride from trench Cl leachate impacting one monitoring well .
Other possible sources, in
reviewing the groundwater flow maps, show that the leachate tank T-4 and older landfill units
are upgradient to the well ." (County Staff Report, p . 15, C12109) .
The Supplemental Staff
41
Report stated that "the leachate fingerprinting provided in the March 22, 2006, submittal rules
out trench C as a possible source of the increases, except for the chloride found in well R138 .
County staff believes that this well could be impacted from manmade offsite sources of chloride,
natural increases in chloride, closed PDC landfills and/or trench C 1 ." (Supp. Staff Report, p .20,
C139575) . The County Staff Reports are not evidence . The County Staff Reports are merely
one analysis by unnamed individuals of the sworn evidence and other unsworn submittals of the
who reviewed chloride levels in monitoring data while employed at the IEPA opined that
variations in chloride levels in monitoring data at the PDC site were due to naturally occurring
differences . (Tr
. 2/22/06, 58, C7374) . The roads in the area of the facility have considerable
grade and require deicing . (Tr
. 2/22/06, 42, C7370) . Interestingly, analysis of a groundwater
sample collected in 1942 (26 years prior to the opening of the landfill) from a well drilled into
shale near the landfill, at the former Pottstown School, indicated a chloride concentration of
1,150 parts per million, significantly higher than the concentrations detected in the groundwater
monitoring wells surrounding the PDC No
. 1 Landfill. (Supp. Groundwater Quality Assessment
Report, pg . 4 ; C11538).
Mr
. Liss also pointed out that the deeper monitoring wells at the site exhibited more
chloride, evidence that naturally occurring chloride in the shale bedrock is moving upward into
42
parties
.
Sworn testimony revealed that the Pennsylvanian age rocks that form the shale bedrock
underlying the lower sand unit have high chloride content . (Tr. 2/22/06, 34, C7368). Chlorides
are used in many applications and are naturally occurring . (Tr. 2/22/06, 41, C7369). Chlorides
in groundwater are frequently due to road deicing salts . (Tr
. 2/22/06, 42, C7370). Chloride
concentrations in groundwater tend to "bounce around ." (Tr. 2/22/06, 57, C7373) . Mr. Liss,
the groundwater. (Tr. 2/22/06, 59, C7374) . Mr. Liss explained that the shale bedrock was
formed in a saltwater sea. (Tr. 2/22/06, 60, C7374) .
Mr. Liss also described a scientifically valid technique whereby comparing the ratio of
bromide to chloride in a sample can help to identify the source of the chloride
. (Tr. 2/22/06, 63,
C7375) . At the PDC facility, the bromide/chloride ratios in the leachate are significantly
different than the bromide/chloride ratios in the monitoring samples with high chloride,
indicating that the landfill is not the source of the chloride . (Tr. 2/22/06, 67, C7376) .
Mr. Liss also explained that TOX levels (Total Organic Halides) in monitoring wells are
unreliable measures of contamination in areas that have high naturally occurring chlorides . (Tr.
2/24/06, 60, C7374) . As a result, while Mr . Liss was still at the IEPA, the analysis of TOX
levels was falling into disfavor as a regulatory parameter
. (Tr. 2/22/06, 69-70, C7376-77) .
On cross-examination, Mr . Liss indicated that it was difficult to find a pattern in the
variation of chloride levels in monitoring wells at the site . (Tr. 2/24/06, 65, C7586) . Mr. Liss
specifically attributed the occasional high chloride levels in well R138 to drainage of road salt
impacted surface water into the ravines in the area . (Tr. 2/24/06, 254, C7634)
. Mr. Liss also
pointed out that, along with chloride, sulfate is a mobile constituent of leachate used as an early
marker for contamination, and that, in the case of well R138, sulfate levels have remained stable
during the period when chloride levels were fluctuating . (Tr
. 2/24/06, 255, C7634). Mr. Liss
also analyzed the monitoring samples for other characteristic constituents of leachate and was
unable to find any . (Tr. 2/24/06, 258-259, C7635) .
7 . Operating plan.
Ron Edwards, the Vice-President of Development and Operations for PDC, detailed the
existing and proposed operating plan of the facility and the proposed expansion, respectively
.
43
(Tr
. 2/21/06, 57-98, C7281-92) . He began by describing the chemical stabilization facility onsite
which uses best-demonstrated available technology to immobilize metals received at the facility .
(Tr. 2/21/06, 57, C7281). Toxicity of these metals is reduced to State and Federal land disposal
restriction standards . (Tr. 2/21/06, 58-60, C7282) . The waste is essentially mixed with cement
and other reagents, and has to be retested after treatment and before disposal . (Tr. 2/21/06, 59,
C7282). Mr
. Edwards identified the treatment and stabilization of waste as a key component of
the operating plan. (Tr. 2/21/06, 62, C7283) .
Mr. Edwards also identified and detailed all of the other components of the operating
plan for the facility. (Tr
. 2/21/06, 57-98, C7281-92) . PDC has detailed acceptance procedures
and a waste acceptance committee to ensure that ignitable, corrosive and reactive wastes, as well
as municipal solid waste, potentially infectious medical waste and regulated radioactive waste
are not received . (Tr. 2/21/06, 63, 7283)
. The waste approval analysis includes physical and
chemical testing of a sample of the waste proposed to be landfilled . (Tr
. 2/21/06, 64, C7283) .
Every load of waste received at the PDC No
. I Landfill is checked and inspected . (Tr.
2/21/06, 66, C7284)
. This includes physical inspection comparison to historical photographs,
analysis of pH values, a paint filter test to determine the presence of liquids, load bearing
analysis, testing for reactivity with water, a volatile organic vapor scan, a radioactivity scan and a
review by the gate control administrator of the required paperwork accompanying each load of
waste. (Tr. 2/21/06, 65-66, C7283-84) .
Roadways within the facility are paved to the edge of the landfill
. All weather gravel
roads provide access to the active waste disposal areas . Waste-hauling trucks are not allowed
onto uncovered waste
. (Tr. 2/21/06, 67, C7284) . Daily cover, consisting of a minimum of 6
inches of soil or other approved synthetic daily cover is applied at the end of each day
. (Tr.
44
2/21/06, 68, C7284) . Intermediate cover consisting of a minimum of 18 inches of soil is placed
over all areas that will not receive waste within 60 days .
(a)
Leachate generated at the landfill is routed to a central collection point and then removed
to the onsite wastewater treatment facility . (Tr. 2/21/06, 70, C7285) . Only after this treatment is
the leachate discharged pursuant to permit to the Greater Peoria Sanitary Sewer System . (Tr.
2/21/06, 71, C7285) . Mr. Edwards pointed out that the current surface impoundment for
wastewater is proposed to be replaced as part of the expansion by leachate storage tanks . (Tr.
2/21/06, 71, C7285)
. (In fact, the Application provides that as part of the expansion, the surface
impoundment would be replaced with a new, 100,000 (minimum) gallon above-ground storage
tank.
See Application, pgs . 2.3-13-14; C245-46, and drawings S-4, S-6 and S-7 ; C263, C265 and
C266). Storm water which contacts waste is treated as leachate
. (Id.) Other non-contact storm
water is routed to a detention basin where it will "silt out" before discharged to the unnamed
tributary to Kickapoo Creek . (Tr. 2/21/06, 72-73, C7285).
Regarding the allegation that PDC is responsible for significant toxic releases as
documented in the Toxic Release Inventory ("TRI"), Mr. Edwards pointed out that this inventory
includes intentional placement of waste into a properly permitted landfill as land releases . (Tr
.
2/21/06, 74, C7286) . The metal compounds which have been treated for safe land disposal are
not volatile and do not present a threat for airborne release . (Tr
. 2/21/06, 75, C7286) . The only
airborne emissions at the site are associated with the waste treatment plant, the operations of
which are indoors and are not a part of the Application . (Id.) Nonetheless, PDC has an air
permit for operation of the waste treatment facility and reports emissions less than two-thirds of
the allowable emissions under the permit. (Tr. 2/21/06, 75, C7286) .
45
PDC has conducted, and will continue to conduct, ambient air monitoring at its facility
boundaries. (Tr. 2/21/06, 75, C7286
; Tr. 2/21/06, 100-01, C7292) . This is a voluntary program
and is conducted by a qualified air quality contractor, who places measurement devices at
roughly each corner of the facility . (Tr. 2/21/06, 76, C7286) .
In 2003, PDC reported zero emissions to the surface waters of the State and 1,533 pounds
as a point-source discharge of six metals from the bag house that services the waste treatment
plant. (Tr. 2/21/06, 95, C7291). The second figure was a calculated estimate of bag house
emissions and, of that amount, 1,170 pounds represent zinc, which is not even a regulated
hazardous waste . (Tr
. 2/21/06, 96, C7291) . However, actual testing suggested that the true
airborne emissions from the waste treatment facility bag house are a mere 160 pounds per year,
rather then the reported 1,533 pounds . (Tr. 2/21/06, 99, C7292) . Ambient air monitoring at the
facility boundary demonstrated no releases and all results of such monitoring have been below
IEPA screening levels. (Tr. 2/21/06, 101, C7292) .
Mr
. Edwards detailed the usual suite of operational procedures and plans, including noise
control, vector and litter control, inspections and maintenance, access control, safety training,
hazard prevention and emergency response plans . (Tr. 2/21/06, 76-80, C7286-87) .
Mr. Edwards discussed fire prevention and spill control at some length
. He pointed out
that fires are not inherently significant risks, because PDC rejects ignitable and explosive wastes
and because the lack of organic content in the waste stream makes methane generation
negligible . (Tr
. 2/21/06, 80, C7287)
. Chemical reactions are controlled by performing a detailed
compatibility determination for each waste stream accepted . I(_d.)
Tanks used on site for treatment or temporary storage of wastes are corrosion resistant
and have secondary containment. (Tr. 2/21/06, 80, 81, C7287)
. Piping at the facility is double-
46
walled
. (Tr
. 2/21/06, 81, C7287)
.
The Application sets forth elaborate and extensive spill
containment and remediation procedures
. (Id.) A contingency plan exists to respond to
emergency conditions . (Id.) PDC has written coordination agreements with all governmental
units that could be summoned to the facility in the event of an emergency . (Tr. 2/21/06, 82,
C7288). Emergency coordinators are in contact with the facility at all times, have 24 hour
communication devices and are authorized to commit company resources in the event of an
emergency. (Tr. 2/21/06, 84, C7288) . Mr. Edwards concluded that PDC's facility is proposed to
be operated so that the public health, safety and welfare will be protected and the Plan of
Operations for the facility is designed to minimize the danger to the surrounding area from fires,
spills and other operational accidents . (Tr. 2/21/06, 82, C7288) .
No other sworn testimony was presented regarding the adequacy of PDC's operational
and emergency plans .
8. The
opposition witnesses .
Four witnesses offered sworn testimony on behalf of the opposition groups
. Only one of
these was qualified as an expert . Charles Norris, a self-employed geologist from Denver,
Colorado, testified on behalf of PFATW and HOI Sierra . Mr. Norris previously testified on
behalf of citizens' groups opposing landfill development or expansion at over a dozen hearings
and, on each occasion, he opined that the applicant did not adequately discuss flaws in the
geology and hydrogeology of the site . (Tr
. 2/24/06, 174, C7614) . Despite this history of
opposition to landfills, Norris did not opine in his testimony at the hearing concerning the
Application that the site was not protective of the public health, safety and welfare, nor did he
conclude that the PDC site was not suitable from a geologic and hydrogeologic perspective for
landfill development
. (Tr. 2/24/06, 172-173, C7613) .
47
Mr. Norris's first major contention was that water at the PDC site moves rapidly from the
ground surface to the uppermost aquifer, in a vertical direction . (Tr. 2/24/06, 121-122, C7600-
01) . In support of this conclusion, Mr
. Norris alleged that parts of the site geology and
hydrogeology as described in the application are contradicted by the data (Tr
. 2/24/06, 115,
C7599), but he never provided or even identified the data that he referenced
. In fact, Mr. Norris
acknowledged that the evidence for his theory of rapid downward movement of water at the PDC
site was largely "negative," meaning that he did not visually see much evidence of horizontal
movement of water offsite . (Tr. 2/24/06, 122, C7601) . Mr
. Norris's conclusions were based on
walking around the perimeter of the site and looking for evidence of seepage or springs
. (Tr.
2/24/06, 123-124, C7601) . On cross-examination, Mr
. Norris acknowledged that, in his walk
around the site perimeter, he never got closer than five hundred feet (500') to the site and was
often further away . (Tr
. 2/24/06, 198, C7620) . Other than his visual observations from a great
distance, Mr. Norris collected no other data to support his theory of rapid downward migration of
water at the site.
Mr
. Norris also acknowledged that, on every other occasion when he has testified for
citizens' groups, he theorized that groundwater and contaminant migration through tills would be
significantly faster than described in the siting application and that the mechanism for such
movement would be through fractures or interconnected sands in the tills
. (Tr. 2/24/06, 165,
C761 1). Mr
. Norris hypothesized that, at the PDC site, the primary mechanism for rapid
downward movement of ground water was interconnected sand. (Tr. 2/24/06, 163, C761 1)
. Mr.
Norris has never published any articles to support his theory, although he has expressed this
theory in every case where he has testified on behalf of a citizens' group against a landfill siting
application . (Tr. 2/24/06, 165-66, C7611-12)
.
48
Mr. Norris pointed to large annual, and sometimes seasonal, changes in water levels at
various monitoring wells at the PDC site as evidence of rapid downward movement of
precipitation through the till . (Tr. 2/24/06, 145, C7606). The validity of this conclusion was
specifically contradicted by Dr . Larry Barrows, who explained that seasonal variations in
monitoring well levels are not the result of rainfall infiltration, but rather the result of pressure
changes which can be transmitted throughout an aquifer almost instantaneously . (Tr
. 2/27/06,
76-77, C7795) . These pressure changes would be expected as a result of the close proximity of
the deeply incised Kickapoo Creek . Kickapoo Creek is believed to directly recharge the lower
sand aquifer. (See id.)
Mr . Norris's next point was that contaminants in the vicinity of the site have already
reached the aquifer . (Tr. 2/24/06, 140, C7605) . He did qualify this opinion, however, to state
that he was not alleging any leakage from any disposal unit, either open or closed, at the PDC
facility. (Tr. 2/24/06, 210, C7620) . He also acknowledged that the chlorinated, organic
compounds observed in minute quantities at some monitoring wells were actually observed in
wells that are upgradient of the PDC facility, including R-122 and R-128 . (Tr. 2/24/06, 204-205,
C7621). The only explanation that he could offer for contaminants moving upgradient from the
site is that they might behave like a "leaf fluttering to the ground ." (Tr. 2/24/06, 206, C7622) .
Mr. Norris drew further support for his theories from what he described as elevated TOX
levels in some of the monitoring wells at the site . (Tr
. 2/24/06, 147,148, C7607) . He disagreed
with the testimony of Kenneth Liss that TOX is not a reliable indicator of contamination at a site
with high naturally occurring chlorides such as the PDC site, but did not offer a basis for the
disagreement. (Tr. 2/24/06, 212-213, C7623) .
49
Mr . Norris's last major point was that the groundwater impact assessment performed by
Dr
. Barrows, showing that the facility, even with ultraconservative assumptions, would pose no
threat to groundwater quality for the entire five hundred (500) year study period, was not
properly calibrated . (Tr. 2/24/06, 215, C7624)
. He opined that the multiple sensitivity studies
performed by Dr . Barrows in his modeling are not the same as calibration . (Tr. 2/24/06, 215,
C7624). Mr. Norris, however, did not do any modeling of his own with respect to the site data.
He acknowledged that Dr
. Barrows correctly identified diffusion and dispersion as the driving
forces for groundwater movement . (2/24/06, 216, C7624) . He could not point to any
mathematical errors in Dr
. Barrows' modeling . (Tr. 2/24/06, 217, C7624) . He admitted that he
was not familiar with all of the various government-developed or -approved computer programs
used by Dr. Barrows . (Id.) Most significantly, Mr . Norris' unsupported belief that the
groundwater impact analysis was not calibrated was directly contradicted by Dr . Barrows, who
explained exactly how the groundwater impact model was calibrated
. (Tr. 2/27/06, 43, C7787) .
Mr. Norris readily acknowledged that his theories have been rejected at a number of other
hearings where landfills were successfully sited and ultimately permitted .
Most notably, he
admitted that in the final report and the recommendations of Will County to the pollution control
facility siting committee concerning the Prairie View RDF Siting Application, testimony similar
to what he offered here was specifically rejected as not being supported by any "substantive
evidence ." (Tr. 02/24/06, 185-187, C7616-17)
.
Despite the foregoing, Mr
. Norris did make some important admissions which are
relevant to an evaluation of the safety of the proposed expansion .
He did not dispute the
accuracy of PDC's hydraulic conductivity test results . (Tr. 2/24/06, 193, C7618) .
He also
acknowledged that the PDC facility does not overlie the Sankoty aquifer
. (Tr. 2/24/06, 239,
50
C7629). He also accepted PDC's calculation of the horizontal groundwater flow velocity in the
uppermost aquifer underneath the site as being about ten feet
(10') per year
. (Tr
. 2/24/06, 152,
C7608) . Additionally, Mr. Norris acknowledged that the uppermost aquifer recharges from
precipitation at topographically low points offsite, where it is actually exposed at the ground's
surface, and that this alone could explain the trace amounts of organic chemicals detected in
some upgradient wells. (Tr. 2/24/06, 203, C7621) .
Mr. Norris is not an engineer and, when asked whether he agreed with Dr . Daniel's
estimate of the longevity of the engineered containment systems proposed for the expansion, he
testified that he neither agreed nor disagreed with that estimate . (Tr
. 2/24/06, 223, C7626) . He
did, however, agree with Dr . Daniel that leachate which escapes from a landfill will clean up
over time through reaction and biodegradation
. (Tr. 2/24/06, 224, C7626) .
The opponents called no other witnesses who qualified as experts in any subject .
PFATW and HOI Sierra did offer Timothy Montague as an expert on landfill liners and landfills
in general, but the Hearing Officer found "that he has not been qualified as an expert
." (Tr.
2/27/06, 211, C7829). As a result, the testimony of Mr . Montague proceeded in the nature of
sworn public comment .
Mr
. Montague is a self-described "researcher" and part-time graduate student who works
out of his house . (Tr. 2/27/06, 209, C7622 ; 237, C7629)
. He has a varied job history, mostly in
the fields of advertising and public relations . (Tr
. 2/27/06, 237-240, C7629-30). His
presentation was directed at all landfills in general and not the Application
. (Tr. 2/27/06, 212-
230, C7623-28)
. He had not studied or even seen the Application. (Tr
. 2/27/06, 231, C7834) .
Mr
. Montague compared the PDC facility to Love Canal, even though he was unaware of the
sophisticated containment engineering in a modern hazardous waste landfill
. (Tr. 2/27/06, 232-
51
234, C7628-29) . In fact, Mr. Montague was unaware of what the Federal Subtitle C and Subtitle
D regulations or RCRA even are . (Tr. 2/27/06, 252, C7839) . He could not name a single landfill
built pursuant to RCRA regulations which is leaking or has negatively impacted human health .
(Tr
. 2/27/06, 252-253, C7839)
.
In this case, Mr . Montague's fear was encapsulated in what he expressed as "the second
law of thermodynamics," which he described as the law of entropy, by which everything "will
spontaneously break apart and diffuse into the universe
." (Tr. 2/27/06, 246, C7838)
. Mr
.
Montague's proffered solution to the world's waste disposal problem is above-ground storage
where "you put it in a large seven-story building
. . . ." (Tr. 2/27/06, 263, C7842) .
The third witness offered by the opponents was Gary Zwicky, a local physician who had
been active in rallying the opposition of the medical community. (Tr. 2/27/06, 276-96, C7845-
50). Dr. Zwicky was not qualified as an expert concerning any of the nine statutory criteria . He
was concerned about possible heavy metal leakage from the site, but could not identify a
potential exposure pathway for such leakage. (Tr. 2/27/06, 279, C7846)
. He is not an engineer,
a geologist or a hydrogeologist, and he had not read any substantial portion of the Application
.
(Tr
. 2/27/06, 279-280, C7846) .
Finally, the opponents offered the testimony of Michael Vidas, an ear, nose and throat
doctor, who also had not studied any part of the siting application
. (Tr. 2/27/06, 296-333,
C7850-59)
. Dr
. Vidas was not qualified as an expert concerning any of the nine statutory
criteria. He had no knowledge regarding landfill design or construction
. (Tr. 2/27/06, 297-298,
C7850-51)
. Nonetheless, he was concerned about the possible health effects of the "toxins"
within the landfill, and all the studies he had seen said that property values near landfills go
down. (Tr. 2/27/06, 301-302, C7851-52)
. He did not hear the testimony of any of the other
52
witnesses, and he was unfamiliar with the regional hydrogeology . (Tr. 2/27/06, 312, C7854) .
However, from his "naive" perspective, the location of the landfill was "bothersome ." (Tr
.
2/27/06, 314-15, C7855) .
C.
Criterion iii: the facility is so located as to minimize incompatibility
with the character of the surrounding area, and to minimize the effect
on the value of surrounding property .
Chris Lannert, a landscape architect and land use planner of significant experience
testified that the proposed expansion was designed so as to minimize incompatibility with the
surrounding area. (Tr. 2/21/06, 174, C7311) . President of the Lannert Group in Geneva, Mr .
Lannert offers professional services in the area of planning, landscape architecture and
community consulting . (Tr. 2/21/06, 161, C7307). Mr. Lannert is a registered landscape
architect and sits on the Illinois Department of Professional Regulation for his profession. He
has provided expert testimony regarding the compatibility of solid waste landfill proposals with
the surrounding area in excess of 25 times . (Tr. 2/21/06, 163, C7308) .
Using an aerial photograph, Mr
. Lannert described the PDC site and surrounding areas .
Mr . Lannert pointed out that PDC owns in excess of 350 acres surrounding the site . (Tr
. 2/21/06,
164, C7308) . The site is buffered on one side by railroad tracks, on another by a creek and on
the East, by residential development . (Tr. 2/21/06, 166, 168, C7309) . Within a 1
.5 mile radius
of the proposed expansion, Mr
. Lannert identified approximately 49% of the land as agricultural,
conservation land or park land, all of which he found compatible with the proposed use of the
expansion. (Tr. 2/21/06, 166, C7309)
. Most of the land in proximity to the proposed site is
zoned either industrial or agricultural
. (Tr. 2/21/06, 167, C7309) .
Mr
. Lannert pointed out that PDC's other land holdings provide a significant buffer
between the site and the existing residential uses within Peoria . (Tr
. 2/21/06, 168, C7309) . The
53
site itself represents a transition between the predominantly agricultural uses to the West and the
predominantly residential uses to the East . (Tr. 2/21/06, 169, C7309).
The vertical portion of the expansion proposes to raise the maximum site elevation by 45
feet. (Tr. 2/21/06, 170, C7310) . To demonstrate graphically that this elevation gain will not
have negative impacts (and in most cases will not even be visible) from surrounding areas, Mr .
Lannert took a series of photographs from a number of points circumventing the facility and
superimposed the new land form onto those photographs . (Id.) For example, from the apartment
complex to the southeast of the site, the existing landfill and proposed expansion would still be
below the tree line . (Tr . 2/21/06, 171, C7310). In addition to the dense vegetation surrounding
the site, Mr. Lannert pointed out that the significant land undulation between the landfill and
neighboring residential uses reduces visibility and impact
. (Tr. 2/21/06, 172, C7310) . Another
photograph taken from a single-family home in a cul-de-sac north of the landfill demonstrated
that the facility is not visible
. (Tr
. 2/21/06, 173, C7310)
.
Mr
. Lannert concluded that the subject site is effectively screened from view by the
existing vegetation and topography and that the end use plan of passive open space is compatible
with other land uses in the area
. (Tr
. 2/21/06, 174, C731 1)
.
Gary DeClark, a member of the Appraisal Institute since 1981, testified that the proposed
expansion would have no negative impact on surrounding property values . (Tr. 2/21/06, 187,
C7314). He is a Managing Director of Integra Realty Resources of Chicago, a national real
estate valuation and consulting firm, having 512 offices across the United States
. (Tr. 2/21/06,
175, C731 1). Mr. DeClark has over 28 years of experience in the real estate valuation and
consulting business, is a professional real estate appraiser licensed in Illinois and 10 other states,
and is a past President of the Chicago chapter of the Appraisal Institute . (Tr. 2/21/06, 176,
54
C731 1). Mr. DeClark directed a real estate impact study to ascertain the effect, if any, of the
existing facility and proposed expansion on surrounding property values . (Tr. 2/21/06, 177,
C731 1). The purpose of an impact study, he explained, is to examine the influence of a
particular land use on adjoining properties . (Tr. 2/21/06, 177, C731 1) . The methodology for an
impact study involves comparing real estate appreciation rates in a target area, proximate to the
use being studied with appreciation rates in a control area, located some distance away . (Tr.
2/21/06, 177, C731 1). Typically, residential sales prices are converted to a price-per-square-foot
figure in his analysis
. (Tr. 2/21/06, 178, C7312)
. In this case, Mr
. DeClark analyzed two
separate types of properties, both single-family residential properties and condominium
properties, because both types of properties are proximate to the landfill expansion location . (Tr.
2/21/06, 178, C7312) .
In the study of detached single-family home sales, Mr . DeClark used 206 sales within the
target area and 960 sales in the control area . (Tr. 2/21/06, 180, C7312) . To ensure that the
designated control area was outside any possible influence from the existing landfill, Mr .
DeClark also examined sales in a second, more distant, control area . (Tr
. 2/21/06, 181, C7312) .
The study results demonstrated average annual appreciation in single-family, detached
homes in the target area of 4
.58%, appreciation in control area one, east of the target area, of
4
.29% and appreciation in control area two, two miles north of the target area, of 4
.63%. (Tr.
2/21/06, 182, C7313)
. Mr . DeClark found these appreciation rates to be so similar as to conclude
that the PDC landfill is obviously not impacting appreciation of single-family homes in the area
immediately adjacent to the landfill
. (Tr. 2/21/06, 183, C7313) .
As an additional control and to make sure that the areas being compared were actually
similar, Mr
. DeClark compared the per square foot sales prices of homes in the target and control
55
areas. (Tr. 2/21/06, 182, C7313) . These varied from $65
.35 per square foot in control area two
to $66.66 per square foot in the Lexington Hills subdivision in the target area and, accordingly,
Mr. DeClark concluded that the properties being compared were similar to one another and
regionally homogenous. (Tr. 2/21/06, 182, C7313). The average holding period of properties in
all three areas was also similar. (Tr. 2/21/06, 183, C7313) .
The comparison of appreciation in condominiums used similar methodology and, again,
Mr. DeClark selected two separate control areas . (Tr. 2/21/06, 184, C7313) . The highest rate of
average annual appreciation was found in the target area, the properties closest to the landfill .
(Tr. 2/21/06, 184, C7313)
. Actual prices as well as average holding period were similar in all
three areas. (Tr. 2/21/06, 185, C7313).
Mr. DeClark concluded that the results in his Peoria studies were consistent with results
obtained by him in other studies analyzing the impact of large regional landfills on surrounding
property values . (Tr. 2/21/06, 186, C7314)
. He specifically identified the Winnebago Landfill,
Settlers Hill in Kane County, Riverbend Prairie Landfill in Dolton, and Lake Landfill in
Northbrook as examples . (Tr
. 2/21/06, 186, C7314) . Accordingly, Mr . DeClark concluded that
the proposed facility and expansion are so located as to minimize any effect on the value of
surrounding property . (Tr. 2/21/06, 187, C7314) .
No other witnesses offered sworn testimony regarding property values, and the
conclusions of Mr. Lannert and Mr . DeClark were not rebutted
.
D.
Criterion 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 .
As and for its statement of facts regarding the County's improper imposition of a $5
.00
per ton surcharge as a condition of approval of siting Criterion v, PDC adopts and incorporates
56
the facts set forth
in
PDC's
Motion
for Partial Summary Judgment (Criterion v) and
Memorandum of Law in Support thereof, filed on September 8, 2006, and in PDC's Reply in
Support of Motion for Partial Summary Judgment (Criterion v), filed on October 16, 2006 .
STANDARD OF REVIEW AND APPLICABLE LAW
As to the arguments raised in PDC's Motion for Summary Judgment (415 ILCS
§5/39.2(e)) and the Memorandum in Support thereof, filed on November 20, 2006, and in PDC's
Reply in Support of its Motion for Summary Judgment (415 ILCS §5/39 .2(e)), filed on
December 28, 2006 (incorporated as Argument Section I herein), the proper standard of review is
de novo :
The law is well settled that when reviewing a question of law the
reviewing court should use the de novo standard of review . See
Panhandle Eastern Pipe Line Company v . IEPA, 314 Ill . App. 3d
296, 734 N .E .2d 18, 21 (4th Dist. 2000) .
City of Kankakee v
. County of Kankakee,et al., PCB 03-125, PCB 03-133, 2003 WL 21995876,
* 13 (IPCB, August 7, 2003) .
Similarly, the Pollution Control Board's review of whether the local siting proceedings
were fundamentally fair is de novo pursuant to 415 ILCS §5/40
.1 . The Board has the initial
responsibility for making findings of fact and conclusions of law on this issue, and is to consider
evidence developed in discovery during this appeal :
Generally, the PCB must confine itself to the record developed by
the local siting authority . 415 ILCS 5/40.1(a) (West 1998) .
However, in some cases, such as the one at bar, it is proper for the
PCB to hear new evidence relevant to the fundamental fairness of
the proceedings where such evidence necessarily lies outside of the
record. See E & E Hauling, Inc . v
. Pollution Control Board, 116
II1.App.3d 586, 71 I11 .Dec. 587, 451 N.E.2d 555 (1983), affd, 107
111.2d 33, 89 11l .Dec. 821, 481 N
.E.2d
664 (1985) .
57
Land and Lakes Co . v . Illinois Pollution Control Bd ., 319 I1LApp .3d 41, 48, 743 N
.E.2d 188,194,
252 I11.Dec. 614, 620 (3 Dist. 2000) .
The standard of review with respect to whether or not the local decision is against the
manifest weight of the evidence on the substantive siting criteria is more complex
. The Pollution
Control Board has recently argued before the Illinois Supreme Court that the Pollution Control
Board makes the final agency decision which is subject to review by the Appellate Court,
pursuant to the Administrative Review Act, and that the local siting decision is an
"interim
decision." As such, while the Board is charged with determining whether the local decision is
against the manifest weight of the evidence, the Board must first apply its technical expertise to
determine whether the evidence considered by the local siting authority was competent and
reliable
. For the Board to simply confine its review to a determination of whether there was
some evidence in support of a local decision, without first determining whether that evidence
was competent, reliable and scientifically valid, defeats the legislative intent in investing the
Board with technical expertise . (See Brief of the Illinois Pollution Control Board prepared by the
Attorney General in Case Nos . 101619 and 101652,
Town & Country Utilities, Inc ., and
Kankakee Regional Landfill, LLC,
Petitioners/Cross-Respondents-Appellees, v . Illinois
Pollution Control Board, Respondent/Cross-Respondent-Appellant, and County of Kankakee and
Edward D
. Smith, State's Attorney of Kankakee County, Respondents/Cross-Petitioners-
Appellants, pending before the Illinois Supreme Court
. A copy of the relevant portion of the
Brief is attached as Appendix A hereto .)
Accordingly, on review of an interim local siting decision on the substantive siting
criteria, the Board must first apply its superior technical expertise to determining what evidence
was competent, relevant and scientifically valid .
An interim local decision can then be
58
overturned onl if it is against the manifest weight of that evidence which the Board has
determined to be competent, relevant and scientifically valid .
ARGUMENT
I. THE APPLICATION IS DEEMED APPROVED PURSUANT TO 415 ILCS
&5/39.2(e).,
As and for its argument regarding the first question presented for review by the Pollution
Control Board, PDC adopts and incorporates the arguments made in PDC's Motion for Summary
Judgment (415 ILCS §5/39 .2(e)) and the Memorandum in Support thereof, filed on November
20, 2006, and in PDC's Reply in Support of its Motion for Summary Judgment (415 ILCS
§5/39.2(e)), filed on December 28, 2006, and the relevant portions of the Statement of Facts,
above.
II. THE PROCEDURES USED BY THE COUNTY BOARD IN THIS CASE
WERE NOT FUNDAMENTALLY FAIR
.
Pursuant to Section 40
.1(a) of the Act, the Pollution Control Board is vested with the
power to review the fundamental fairness of a proceeding for local siting approval
:
* * *. In making its orders and determinations under this Section
the Board shall include in its consideration
..
. the fundamental
fairness of the procedures used by the county board or the
governing body of the municipality in reaching its decision
. * * * .
415 ILCS §5/40 .1(a).
In rendering a decision on an application for siting approval, a local siting authority is
called upon to act in a quasi-judicial, rather than legislative, manner :
There is little in this record which indicates that the County Board
Members . ..
made any real distinction between their quasi-judicial
functions and their legislative functions, and much that they did
not.
59
City of Rockford v. Winnebago County Board,
PCB 87-92, 1987 WL 56379, *14 (IPCB,
November 19, 1987)
. Therefore, County Board members are to make their decisions regarding a
siting application based solely on the evidence before them in the Record, and may not be biased
in favor of or against such application.
In this case, the majority of County Board members who voted against the motion for
approval of the Application did not understand their quasi-judicial function, or that they were to
base their decision solely on the evidence, or their obligation to avoid
ex parte contacts .
Moreover, the sheer volume of the ex parte contacts in this case is unprecedented, and reached a
level where no reasonable person could conclude that the purported decision was free of bias and
undue influence. Several of the County Board members have specifically stated that they
considered material outside the record in making up their minds regarding the Application,
and/or were actually biased against PDC and the Application .
A. The entire County Board was irrevocably tainted by the volume of ex
partecontacts
in this case .
Ex parse
contacts between opponents and County Board members are not permitted
during the siting process :
The case law condemns such ex parte contacts because they (1)
violate statutory requirements of public hearings, and concomitant
rights of the public to participate in the hearings, (2) may frustrate
judicial review of agency decisions, and (3) may violate due
process and fundamental fairness rights to a hearing
. The
impropriety of ex parte contact in administrative adjudication is
well established . U.S. Lines v. Federal Maritime Commission,
584
F .2d 519, 536-42 (D.C.Cir.1978)
; PATCO v. Federal Labor
Relations Authority,
685 F.2d 547, 564-66 (D .C.Cir.1982) ;
Sangamon Valley Television Corp. v. United States,
106
U.S .App.D.C. 30, 33, 269 F .2d 221 (D.C.Cir.1959)
; No. Fed Sav .
& Loan Assoc. v
. Becker, 24 I11 .2d 514, 520, 182 N .E.2d 155
(1962); Fender v. School Dist. No. 25, 37 III.App
.3d 736, 745, 347
N.E.2d 270 (1976) .
60
E & E Hauling, Inc . v . Pollution Control Bd ., 116 I11.App.3d 586, 606-07, 451 N
.E.2d 555, 571,
71 I1l
.Dec
. 587, 603 (2 Dist . 1983), affirmed, 107 I11 .2d 33, 481 N .E.2d 664, 89 II1 .Dec . 821
(1985).
It was the obligation of the individual County Board members to avoid
ex parte contacts
and to minimize the impact of any unavoidable ex parte contacts . The County Board members'
failure to do so requires reversal of the County Board's purported decision, and is reminiscent of
(though far more egregious than) the circumstances in City of Rockford v
. Winnebago County
Board, supra, wherein the Pollution Control Board stated as follows:
As well as evidencing an unacceptable blurring by the County of
the issues to be considered, and disinclination to be bound by the
limits of the record before the County, this record also indicates a
basic failure by the majority of County Board Members to
appreciate the significance of the concept of ex parte contacts .
The prohibition against ex parte contacts flows from the
requirement that adjudicatory decisions be made on the basis of a
sworn and transcribed record subject to cross-questioning by all
parties involved . To the extent the SB172 process contains a 30-
day post hearing public comment period without including a
restriction of the
scope of comments to argument about
information already in the record, the ability to rebut all on-record
information is diminished ; nonetheless the principle of prohibiting
informal or special access to decisionmakers remains the same
.
There is no indication that most Board Members did anything
either to
restrict their usual informal contacts with their
constituents or to make such contacts part of the record by e
.g.
routinely forwarding all correspondence to the Clerk, by reducing
the contents of unavoidable phone calls to writing and filing the
memo with the Clerk . * * * .
PCB 87-92, 1987 WL 56379, *15
. In City of Rockford, as in this case, the County Board
members were barraged with inappropriate contacts from members of the public, which contacts
were in keeping with legislative, but not quasi-judicial, functions:
61
Id. at * 16
.
Any natural, if inappropriate, tendencies the County Board
Members may have to confuse their duties and role was
exacerbated by STL's public opinion campaign. STL's flyers
urging the writing and proper filing of written comments as well as
hearing attendance and testimony was perfectly proper and indeed
laudable in an adjudicatory context . Its other activities--the signs,
hearing room refreshment stand, and submittal to the County of
off-record comments during its deliberation of the Committee's
recommendations, and the radio commercial-call in campaign
immediately before the County's vote--are all time honored
lobbying activities which are inappropriate in the quasi-judicial
atmosphere of an SB 172 proceeding . STL's running of its anti-
landfill radio commercials, urging citizens to call the judge/jury,
only served to encourage ex parte contacts . The legislature has
provided for and doubtless and anticipated hot debate in SB172
proceedings, but the forum provided for such debate is the hearing
room, not the cloakroom, the streets, or the airwaves . (The Board
of course notes that, news reportage of the proceeding is to be
expected, as was the case here, where news articles (PCB Tr. 35,
84, 94) as well as radio programs discussed the subject .)
The Courts have adopted a 5-part test to establish improper ex parte contacts :
In considering whether ex parte contacts have 'irrevocably tainted'
a decisionmaking process so as to render it fundamentally unfair,
relevant considerations include
:
1) the gravity of the ex parte communications ;
2) whether the contacts may have influenced the agency's ultimate
decision;
3) whether the party making the improper contacts benefitted from
the agency's ultimate decision
;
4) whether the contents of the communications were unknown to
opposing parties, who therefore had no opportunity to respond ; and
5) whether vacation of the agency's decision and remand for a new
hearing would serve a useful purpose . . . E & E Hauling, 451 N .E.
2d at 571, citing PATCO v
. Federal Labor Authority, 685 F . 2d
547, 564-5 (D.C. Cir. 1982)
.
Id
. The most crucial part of the foregoing test is a finding of prejudice :
62
A court will not reverse an agency's decision because of improper
ex parte contacts without a showing that the complaining party
suffered prejudice from these contacts
. Fender v. School Dist. No.
25, 37 II1.App.3d 736, 745, 347 N .E.2d 270.
Id. ; see also,
Waste Management of Illinois, Inc . v. Pollution Control Bd ., 175 I1l.App.3d 1023,
1043, 530 N .E .2d 682, 697, 125 Ill .Dec. 524, 539 (2 Dist
. 1988), appeal denied, 125 Il1.2d 575,
537 N .E.2d 819, 130 II1 .Dec . 490 (1989); Fairview Area Citizens Taskforce v . Illinois Pollution
Control Bd., 198 I11
.App.3d 541, 549, 555 N .E.2d 1178, 1183, 144 Ill .Dec . 659, 664 (3 Dist .
1990), appeal denied, 133 I11.2d 554, 561 N .E.2d
689, 149 II1 .Dec. 319 (1990).
It is clear that the County Board members in this case did not understand their roles and
obligations as quasi-judicial decision-makers
. Moreover, there is no reported case at the
Pollution Control Board or the Appellate or Supreme Court levels in which anywhere near the
number of ex parte contacts present in this case occurred
.
1 . The County Board members did not understand their roles and obligations
as quasi judicial decision-makers
.
Of the twelve (12) County Board members who voted against approval of the
Application, ten (10) Board members
thought that they were permitted to receive
communications regarding the Application from members of the public outside the hearing
process and outside the Record . (See Elsasser, Dep
. 1, 11/16-12/5, 12/9-19, 12/20-13/8, 14/15-
24 ; O'Neill, Dep . 4, 15/16-16/6 ; Pearson, Dep
. 5, 23/21-24/9, 24/16-25/14 ; Phelan, Dep . 6, 7/3-
16, 7/21-8/7 ; Polhemus, Dep. 7, 9/9-10/1 ; Salzer, Dep
. 8, 11/17-24, 12/9-13/12, 14/20-15/4,
17/1-18/1 ; James Thomas, Dep . 9, 20/24-21/20, 42/11-19, 17/13-18/3
; Trumpe, Dep . 10, 9/24-
10/4; Watkins, Dep
. 11, 11/10-18 ; Williams, Dep . 12, 12/20-14/8) .
Several of the ten (10) County Board members who voted against approval of the
Application who thought they could receive communications from the public outside the hearing
63
process and the Record, further believed that they could not receive communications outside the
hearing process and the Record from PDC.
Q [by Mr. Mueller] Well, was it your understanding that the
proponents were not supposed to be contacting County Board
members outside of the hearing?
A
Yes, because they were really the litigants . I did not see these
other people who were in opposition here as individuals as
litigants .
(Trumpe, Dep . 10, 38/24-39/5 ; see also Polhemus, Dep . 7, 9/19-10/1 ; James Thomas, Dep . 9,
17/13-17) .
Of the twelve (12) County Board members who voted against approval of the
Application, nine (9) Board members specifically testified that they did not file the
ex parse
contacts they received during the pendency of the Application with the County Clerk, because
they were not aware that they were required to do so . (Elsasser, Dep
. 1, 16/24-17/8 ; Joyce, Dep.
2, 10/15-24, 24/13-21 ; O'Neill, Dep . 4, 19/3-12 ; Pearson, Dep . 5, 13/1-7
; Phelan, Dep. 6, 22/21-
23/12; Polhemus, Dep . 7, 11/2-9; Salzer, Dep. 8, 46/24-47/8 ; James Thomas, Dep . 9, 14/8-18,
15/4-10, 32/18-33/5 ; Trumpe, Dep . 10, 16/21-17/4)
. Two (2) additional County Board members
who voted against approval of the Application did not specifically testify regarding this point,
though they (a) admitted that they received
ex parse communications during the proceedings of
the Application, and (b) did not disclose same during discovery in this case . (See
Watkins,
Dep.11 ; Williams, Dep .12, 18/10-22) .
Moreover, of the twelve (12) County Board members who voted against approval of the
Application, six (6) Board members admitted that they believed they could consider the
ex parse
contacts they received in rendering their decisions on the Application :
64
• [by Mr. Mueller] And you also said that you waited to make
up your mind until you had read everything that you could get
your
hands on ; is that right?
A Everything that was presented to me, yes .
•
And that would include all of the e-mails that you got?
A Oh, yes.
(Pearson, Dep . 5, 24/3-9).
•
[by Ms
. Nair] So it was your -- so you considered the
information that you received at your home?
A No . I
-- the only way I considered the letters and that I got
was I used it like a tally sheet . If I got 100 letters and 80 or 90 of
them were against it, I felt that's the way the public felt, that's the
way -- I was supposed to represent the public, too .
We've had many decisions on different things, and my decision
hasn't been wholly on letter count, but I consider that a good part
of my reasoning .
(Polhemus, Dep . 7,37/14-38/1) .
Q [by Mr. Mueller] * * * . Is it then fair that you understood that
you should take the content of all of those communications into
consideration in making your decision?
A
I didn't think I could take them all in, if I didn't have time to
read them all .
Q [by Mr . Mueller] But the ones that weren't crackpot letters that
offered substantiative information which wasn't at the hearing
those you felt you were free to consider?
A Yes, but I didn't consider everything
.
(Salzer, Dep. 8, 17/5-10, 17/21-18/1). (See also Watkins, Dep
. 11, 13/15-14/2 ; Phelan, Dep . 6,
7/21-8/7
; Elsasser, Dep
. 1, 13/2-8).
65
The consensus among the County Board members who voted against approval of the
Application, was that the law permitted them to receive communications from members of the
public and opposition groups, though they were not permitted to receive communications
directly from PDC, outside of the hearing process and outside of the Record
. These same
County Board members did not disclose the communications they received outside the hearing
process and the Record, because they did not believe they were required to do so
. Finally, six of
these same Board members believed that they were permitted to consider the communications
they received outside the hearing process and the Record, in whole or in part, in making their
decisions on the Application . It is a fair inference that the other six (6)
County Board members
who voted against approval of the Application believed the same thing, because none of them
made any real attempt to discourage these improper contacts . There is absolutely no point in
listening to, reading and sometimes responding to
ex parte contacts if one knows that such
contacts should not be considered in a final decision .
Taken as a whole, "this record . . . indicates a basic failure by the majority of County
Board Members to appreciate the significance of the concept of ex pane contacts ." City of
Rockford, supra, PCB 87-92, 1987 WL 56379, * 15 .
Moreover, it is clear that, like the case of
City of Rockford:
There is no indication that most Board Members did anything
either to restrict their usual informal
contacts with their
constituents or to make such contacts part of the record by e .g.
routinely forwarding all correspondence to the Clerk, by reducing
the contents of unavoidable phone calls to writing and filing the
memo with the Clerk .
Id.
Therefore, the decision of the County Board (if any such decision was made) should be
reversed, and Application in this case should be approved, as requested below
.
66
2. The sheer volume ofex partecontacts in this case creates a presumption
of prejudice.
There are no reported cases in which a local siting authority received anywhere near the
volume of ex parte contacts received by the Board members in this case.
In its Responses to PDC's First Set of Requests to Admit, the County admitted that 309
documents received by County Board members from opponents of the Application were not filed
with the Peoria County Clerk, namely, documents 2, 3, 11, 12, 19, 23, 49, 50, 51, 52, 54, 57, 64,
65, 66, 68, 70, 72, 73, 74, 76, 77, 78, 82, 83, 84, 85, 86, 92, 93, 94, 95, and 103 through 379 .
Taken together, these documents represent 1,139 contacts in writing by opponents with County
Board members who voted against approval of the Application (or 998 such contacts if County
Board Chairman Williams failed to check his email, as he has claimed in this matter)
. Of those
documents, 263 were dated after the public comment period closed (947 contacts, or 821 without
Chairman Williams). Moreover, 201 of the un-filed documents were received from April 7,
2006 (the day after the vote of the Committee of the Whole), through May 3, 2006 (the date of
the County Board vote against approval of the Application, with conditions) (610 contacts, or
517 without Chairman Williams) .
In reality, there were likely significantly more written ex parte contacts than were
revealed in discovery in this appeal . Eleven (11) of the twelve County Board members who
voted against approval of the Application discarded some or all of the documents they received
during the proceedings on the Application (namely, every Board member other than G . Allen
Mayer, who is a practicing attorney)
. In fact, five (5) of the twelve (12) County Board members
who voted against approval of the Application produced no documents whatsoever in the course
of discovery (namely, Board members Joyce, O'Neill, Polhemus, Thomas and Watkins)
.
67
In addition to written contacts with County Board members, the Board members deposed
by PDC admitted collectively receiving dozens of telephone contacts from opponents :
Moreover, the County Board members were besieged with contacts from opponents at regular
meetings of the County Board (Exhibits 97-103 (tapes), 104 (transcripts)), and were even
contacted at their homes by certain opponents (see Polhemus, Dep. 7, 24/1-5; Salzer, Dep. 8,
51/8-20; Watkins, Dep
. 11, 12/2-5, 18/6-11 ; Williams, Dep . 12, 21/6-10, 22/6-8) .
As in the City of Rockford
case, the Board members in this case were barraged with ex
parte
contacts through the machinations of several opponent groups, which systematically
promulgated incorrect information to the public regarding the propriety of contacts with County
Board members outside the hearing process and outside the Record
. See PCB 87-92, 1987 WL
56379, *16. In particular, HOI Sierra and PFATW urged members of the public to contact
County Board members directly and urge the Board members to "vote no" on the Application,
both prior to the public hearing and after the close of the public comment period
.
In HOI Sierra's bimonthly newsletter, the
Tallgrass Sierran, members of the public were
asked to "contact as many board members as you can", and provided contact information for
each Board member
. (Dep. Exhibits Vol . II, Ex. 36)
. On the PFATW website, there appeared
the tagline, "tell the county board no toxic waste in peoria" . (Ex
. 58). The PFATW website
68
• Elsasser (17/19-22 "many")
• Joyce (25/1-5 "ten or twelve")
• O'Neill (20/5-18, 24/22-25/5)
•
Pearson (16/12-15 "40-plus")
• Phelan (13/19-21 "dozens")
• Polhemus (13/19-24 "15 to 20")
• Salzer (23/23-24/1 "Eight, 10, 12")
• Thomas (32/14-16 "Less than 20")
• Trumpe (30-38, 42-43)
• Watkins (16/19-20)
• Williams (20/18-23 "a dozen")
("www.notoxicwaste .org")
made clear the rationale behind the campaign to encourage ex parte
contacts :
County Board members are legally "gagged" from communicating
in a free and open way with concern[ed] constituents since they
may act as judges, but if they do not vote up or down vote on the
measure, the permit will be automatically approved. * * * .
This is unacceptable to us .
It is undemocratic and thwarts our
power as citizens to make elected officials accountable on election
day .
(Dep. Exhibits Vol . III, Ex
. 58, pg. 3).
In addition to the website, PFATW distributed fliers urging members of the public to
contact County Board members and tell the Board members to vote against the Application (see
Dep. Exhibits Vol . III, Ex . 61, 64, 65) . By way of example, one flier stated as follows :
Tell the
Peoria County Board
VOTE NO
*
*
*
Contact your Peoria County Board member . Write, email and
call you board member and let them know you are opposed to the
landfill expansion . The County Board is elected to serve the
citizens of Peoria County. They need to hear what you think .
Don't wait, contact your board member today!
(Dep. Exhibits Vol . III, Ex . 64) . The flier was distributed at the St . Patrick's Day Parade in
Peoria, on or about March 17, 2006 . (K. Converse, Dep . 20, 58/4-6) . There is no mention of the
public comment cutoff date (March 29, 2006) in the flier .
Joyce Blumenshine directly petitioned the County Board to "vote no" in fifteen (15)
billboards located throughout Peoria County (Blumenshine, Dep . 17, 20/14-22), stating as
follows :
69
PEORIA COUNTY
TOXIC Waste from 10 states!
SAY NO! www.notoxicwaste .org
PEORIA COUNTY
Say no to 15 more years of TOXIC Waste!
SAY NO! www.notoxicwaste .org
(Dep. Exhibits Vol . II, Ex . 17). In addition, the opponents posted yard signs throughout the
community, some of which stated as follows :
STOP Hazardous
TOXIC WASTE
TELL PEORIA COUNTY BOARD :
Say NO to Peoria Disposal Company's
Toxic Landfill Expansion
(Dep. Exhibits Vol . II, Ex. 38 ; see Blumenshine, Dep. 17, 47/14-16)
. All the County Board
members who voted against approval of the Application who were asked about the yard signs
testified that they had seen same in the community . (Elsasser, Dep . 1, 32/5-15
; Joyce, Dep
. 2,
26/3-8; O'Neill, Dep . 4, 21/8-18 ; Pearson, Dep . 5, 13/19-24
; Phelan, Dep. 6, 19/6-13 ; Polhemus,
Dep . 7, 17/4-9 ; Salzer, Dep
. 8, 24/12-21 ; Thomas, Dep . 9, 37/5-13, 38/1-4 ; Trumpe, Dep . 10,
28/16-22; Williams, Dep . 12, 23/13-24/3) .
All told, the sheer volume of the ex parte contacts (written contacts, telephone calls,
personal communications, billboards, yard signs, fliers, websites, association newsletters, and so
on) is absolutely unprecedented . The effect of these contacts is irreparable, and has forever
tainted the County Board regarding the Application . Based on the foregoing, there is no possible
means to eradicate the taint of the thousands of ex parte contacts received by the County Board
in this case.
These voluminous, if not incessant, ex parte
contacts go far beyond what this Board has
tolerated as the inevitable contacts between the public and their elected officials . These contacts
70
were for the most part directly made or sponsored by named party opponents and their leaders .
These were groups represented by counsel, and should have known better. The Sierra Club is
well experienced in landfill sitings, and is presumably well-acquainted with the rules of the
game
. PFATW, by its own admission, found the rules unacceptable and chose to flaunt them .
This aggravates the impact of the improper contacts .
The fact that PDC lost the vote (that is, the vote to approve the Application with
conditions) should be sufficient proof of prejudice suffered by PDC
. Prejudice becomes an
illusive concept to prove when the law bars an aggrieved party from inquiring into the mental
processes of the decision-maker.
Nonetheless, there is some guidance . The standard for
determining whether the presumption that public officials act without bias is overcome if a
disinterested observer would conclude that there has been some prejudgment of adjudicative
facts. E & E Hauling, Inc ., supra. "A finding of disqualifying bias and prejudice on the part of
the County Board will be upheld if it can be said that the Board had in some measure adjudged
the facts of the permit application in advance of hearing it
." (Id., 116 Il1 .App.3d at 599). Given
the volume of the improper contacts in this case, combined with the undisguised intent of named
party opponents to flaunt the rules of fundamental fairness, a disinterested observer could not
reach any conclusion other than the obvious .
Therefore, the decision of the County Board (if any such decision was made) should be
reversed, and Application in this case should be approved, as requested below
.
B . Eight (8) County Board members actually considered evidence outside
the Record rather than evidence in the Record, or were biased .
Based on their testimony during the depositions, it is clear that the votes of at least eight
(8) of the County Board members who voted against approval of the Application must be
stricken, namely, the votes of G . Allen Mayer (Dep . 3), James Thomas (Dep
. 9), Eldon Polhemus
71
(Dep. 7), Tom O'Neill (Dep
. 4), Brian Elsasser (Dep
. 1), Michael Phelan (Dep . 6), Phil Salzer
(Dep
. 8) and Lynn Scott Pearson (Dep . 5).
The law presumes that public officials act without bias
:
Public officials should be considered to act without bias
. Cf.
Memphis Light, Gas & Water Division v
. Craft (1978), 436 U
.S . 1,
95
98
SS.Ct.Ct.
.
729,
1554,
42
56
LL.Ed.Ed.2d
.2d
72530.
; Goss v
. Lopez (1975), 419 U.S
. 565,
E & E Hauling, Inc . v
. Pollution Control Bd .,
107 I11.2d 33, 42, 481 N .E.2d 664, 668, 89 Ill.Dec
.
821, 825 (1985) ; see also
Land and Lakes Company v
. Randolph County Board of
Commissioners,
PCB 99-69, 2000 WL 1456871, *19 (IPCB, September 21, 2000)
. However,
bias may be shown if a "disinterested observer" would conclude that a public official pre judged
an issue :
However, collusion between the applicant and the actual decision-
maker resulting in the prejudgment of adjudicative facts is
fundamentally unfair
. See Land and Lakes, 319 Ill . App. 3d 41, 51,
743 N.E.2d
188, 196 . Where a municipal government "operates in
an adiudicatory capacity, bias or prejudice may only be shown if a
disinterested observer might conclude that the administrative body,
or its members, had in some measure adjudged the facts as well as
the law of the case in advance of hearing it."
Concerned Adjoining
Owners, 288 111 . App
. 3d 565, 573, 680 N .E.2d 810, 816.
Rochelle Waste Disposal, L.L .C. v
. City Council of the City of Rochelle, Illinois, PCB 03-218,
2004 WL 916231, *24 (IPCB, April 15, 2004) (emphasis added)
.
1 & 2. G
. Allen Mayer & James Thomas
Board members Mayer and Thomas concealed
their membership with the Sierra Club (a
registered opponent group represented by counsel during the proceedings on the Application)
until directly asked about such membership at the last County Board meeting, on May 3, 2006
.
Prior to the May 3, 2006 meeting, PFATW and HOI Sierra filed a motion seeking to bar Board
member Prather from voting on the Application, because he had previously sold property to
72
PDC . The County denied the Motion of PFATW and HOI Sierra, and made a general inquiry
into the bias of the Board members . In fact, it was the Chair of the Siting Hearing
Subcommittee, Board member Patricia Hidden, who asked whether any County Board members
were members of the Sierra Club . (See Tr. 5/3/06, 23/12-25/4, C13717 ; 25/10-12, 29/9-10,
C13717-18). Only when forced to reveal their membership in an opponent group (and resulting
representation by HOI Sierra's attorney) did Mayer and Thomas come clean.
Clearly, regardless of the legal effect of their membership in an opponent group, Mayer's
and Thomas's concerted attempts to conceal such membership are sufficient to warrant a finding
of actual bias in this case
. Therefore, the votes of Mayer and Thomas should be stricken, and in
the event this matter is remanded, Mayer and Thomas should be barred from voting on the
Application .
3 . Eldon Polhemus
Eldon Polhemus admitted in his deposition that his decision was based on contacts with
opponents and his straw poll of the community's opinion regarding the Application . Polhemus
admitted that he reviewed none
of the evidence in the Record, and attended none of the hearings
or meetings concerning the Application, other than the final special meeting of the County Board
on May 3, 2006 . (Polhemus, Dep . 7, 19/2-21/8).
Polhemus relied in part on the ex parte communications he received from his friend Tom
Edwards
:
Q [by Ms . Nair]
Do you consider Tom Edwards to be somebody
who knows his way around a landfill, knows what's going on with
landfills?
A Yes.
Q
Do you think he is a knowledgable person when it comes to
landfills?
73
(Id.,
22/16-22) .
A Yes .
County Board member Eldon Polhemus
: Well, I just wanted to
mention that, and I think most of the Board feels the same way, we
kid our friend [Tom Edwards] about his talks, and his speeches and
his letters that he gives to us, but I know for one thing his
information on this landfill deal that I received helped me to
understand more of it and helped me to make a decision . So I
thank you very much for what you have done for me, anyway
.
(Exhibit 104, pg . 18, Transcript of Peoria County Board Meeting
: May, 2006).
Polhemus was honest in his explanation that his decision was based on
ex parte
communications :
•
[by Ms. Nair] Did you believe you were to rely on those
findings of fact in coming up with your decision?
A No . I believed if they met what my reasons were because the
findings of fact really never meant anything to me until after the
vote. After the vote was over, then I was
-- I was satisfied that the
findings of fact would match the reason to deny.
•
So you had independent reasons?
A Yes.
•
What was your understanding for what information you should
gather to come up with that decision, your independent reasons for
denial?
A I will tell you I make a lot of my decisions yes and no on
important votes like that by the, what do you say, the information I
acquire from these letters and things like that because I don't go
out and go to parties and stuff like that.
•
So by those letters, do you mean the letters that you were
getting at your home from members of the public?
A Yes .
74
Q So it was your
-- so you considered the information that you
received at your home?
A No. I --the
only way I considered the letters and that I Rot
was I used it like a tally sheet .
If I got 100 letters and 80 or 90 of
them were against it, I felt that's the way the public felt, that's the
way--I
was supposed to represent the public, too
.
We've had many decisions on different things, and my decision
hasn't been wholly on letter count, but I consider that a good part
of my reasoning
.
(Polhemus, Dep
. 7, 36/16-38/1, emphasis added
; see also
id., 10/16-19, 15/9-17)
. Regarding
these letters and communications, Polhemus admitted that he filed nothing with the County Clerk
during the proceedings on the Application, and threw all the materials away after the May 3,
2006 meeting. (Id.,
11/2-9) .
Based on the foregoing, it is clear that Polhemus was influenced by (and in fact, made his
decision solely based on) the
ex parse
contacts he received during the proceedings on the
Application, all of which he destroyed after the May 3, 2006 meeting
. Therefore, the vote of
Polhemus should be stricken, and in the event this matter is remanded, Polhemus should be
barred from voting on the Application
.
4 . Tom
O'Neill
Tom O'Neill first voted in favor of the Application on April 6, 2006, with the Committee
of the Whole, and on May 3, 2006, voted against approval of the Application
. (O'Neill, Dep . 4,
24/8-21).
O'Neill admitted to the local newspaper that his vote against approval of the
Application was based on the opinion of his constituents and significant public pressure between
the votes
. The article, titled "Constituents changed board member's vote" and published May 5,
2006, in the
Peoria Journal Star,
provides, in pertinent part, as follows:
75
Thomas O'Neill was the only member of the 18-person
Peoria County Board to switch his vote on expansion of the
hazardous waste landfill at Pottstown .
In a preliminary vote on April 6, O'Neill, a Democrat who
represents the 17th District which includes the Bartonville area,
voted to approve the expansion of the landfill, owned by Peoria
Disposal Co.
On Wednesday, he joined the board majority to oppose the
expansion
. It failed 12-6 .
O'Neill said Thursday that his first vote was based on the
county's staff report,
which recommended expansion with
conditions, as well as "what the county had to lose
."
But "after that vote, I had so many phone calls and
neighbors come to me and ask me what I was thinking," he said
.
"I probably would have voted `Yes' again but voted for the
wishes of my constituents that put me in office
."
(Dep
. Exhibits Vol . II, Ex . 30).
During his deposition in this appeal, O'Neill claimed that he did not recall stating that he
"probably would have voted `yes' again but voted for the wishes of my constituents that put
[him] in office," as he was quoted in the
Peoria Journal Star
article. (O'Neill, Dep . 4, 23/15-
23)
. O'Neill admitted
that he had received phone calls and visits from neighbors between the
April 6, 2006, and May 3, 2006, meetings
(id.,
24/22-25/2, 25/17-26/3), but claimed that he did
not consider such contacts in his vote on May 3, 2006
. (Id.,
27/10-23, 24/8-21, 24/22-25/2)
.
O'Neill further admitted that the only evidence
in the Record
he considered wasart
of
one of the County Staffs reports (recommending approval of the Application with conditions)
.
(Id.,
27/20-23, 25/17-26/3, 26/13-27/5)
. Therefore, O'Neill had nothing
on which to base his
vote against approval of the Application, other than the communications received
ex parte
between April 6, 2006, and May 3, 2006 .
76
O'Neill's protests in his deposition are beyond credulity
. It is absolutely clear, based on
the totality of the record, that O'Neill based his vote on the Application entirely on
communications received ex parse
between April 6, 2006, and May 3, 2006 (subsequent,
incidentally, to the March 29, 2006, public comment cutoff)
. Those communications were
primarily verbal, rather than written (though, in any case, O'Neill testified that he destroyed all
documents he received during the proceedings on the Application (id
., 19/3-12)), and therefore,
the defects in the proceedings cannot be cured
. O'Neill's vote should be stricken, and in the
event this matter is remanded, O'Neill should be barred from voting on the Application
.
5 . Brian Elsasser
Brian Elsasser predetermined his position regarding the Application and performed his
own factual research, outside of the Record, during the proceedings on the Application
.
At the April 6, 2006 meeting, Elsasser cited an illness suffered by his father (caused by a
product "totally different than anything that PDC puts in the ground") and his deceased brother's
experiences as a medical doctor as the reasons for his vote recommending denial of the
Application . (Tr
. 4/6/06, 104/10-105/15, C13436
; emphasis added) . At his deposition, Elsasser
again emphasized his father's illness as a major basis for his decision
. (Elsasser, Dep . 1, 27/11-
28/4)
. Also, Elsasser admitted that he expressed a position regarding the Application well prior
to the closing of the Record on March 29, 2006 .
(Id., 22/18-21, 23/8-12)
. In addition, Kim
Converse, leader of the opposition group PFATW, testified that Elsasser phoned her immediately
before or after the April 6, 2006 vote of the Committee of the Whole, in order to get the
telephone number of Cindy Herman, another opponent to the Application
. (K
. Converse, Dep.
20, 36/4-37/12) .
77
Finally, and even
more problematically, Board member Elsasser admitted at his
deposition that he performed independent factual research on crucial factual issues in the case,
outside the Record, during the proceedings on the Application .
Elsasser contacted Dean
Faulkner of the Illinois American Water Company in March of 2006, "just trying to get an idea
of what his opinion was on where the aquifer was really located at
." (Elsasser, Dep . 1, 25/6-
26/7). Elsasser called the Illinois Environmental Protection Agency, because he "was still
confused about the PM and the PM10 test, and they finally clarified the fact that your license
does not require you to be a specific level for the PM10 test but only for the particular matter
."
(Id., 26/13-22) . His rationale for going outside the Record on at least these two occasions was
his purported duty to be self-informed :
Q [by Mr. Mueller]
Am I correct that you believed that it was
appropriate to supplement whatever you heard from your
constituents and at the public hearing with whatever own research
you felt it necessary to do?
A Any time you have to decide on something, I need to have the
full understanding of what's going on .
(Id., 26/1-7).
Based on the foregoing, it is clear that Elsasser considered and relied upon evidence
outside the Record in reaching his decision in this case
. In addition, a disinterested observer
would conclude that Elsasser was biased against PDC and the Application
. Therefore, Elsasser's
vote should be stricken, and in the event this matter is remanded, Elsasser should be barred from
voting on the Application .
6. Michael Phelan
At his deposition, Michael Phelan testified that he considered "the evidence and the
facts" in reaching his decision on the Application
:
78
• [by Mr
. Mueller]
Now, was it your understanding that your
decision was to be based only on the evidence that came in at the
public hearing?
A The evidence and the facts, yes .
•
Well, what's the difference between the evidence and the
facts?
A I don't know . I can't answer that . That was -- the facts were
the term that Mr . Atkins used when explaining the rules of the
Peoria County Board .
We used facts . I guess you're using
evidence
.
•
Could you gather facts from sources other than the public
hearing?
A I don't recall that, that part of what could be used and what
couldn't be used coming up . I don't recall Mr . Atkins and the
State's Attorney's office advising us on that particular item
.
•
Well, was it your belief that you could gather facts from
sources other than the public hearing?
A Yes. In general, yes
.
(Phelan, Dep . 6, 8/23-9/20 ; emphasis added) .
The "facts" gathered by Phelan included
information from "more than 100" letters (id., 10/22-11/6), "dozens" of emails (id., 13/8-15), and
dozens of telephone calls
(id., 13/19-21) . Phelan further testified that he did not file the
communications he received from opponents during the proceedings on the Application, and that
he destroyed the documents so received after the May 3, 2006 meeting
. (Id., 22/21-23/12) .
In addition, Phelan clearly did not understand his role in the proceedings, or that he was
not to consider ex parte
communications in reaching his decision:
• [by Mr
. Mueller] Let me ask it a different way . It was your
understanding that you could listen to members of the public and
get their input and opinions on the siting application?
A
I don't believe I had an understanding that I was to take their
testimony into account on the facts, but I do --
the way I
79
understood the process that the public was allowed to weigh in on
this .
•
That they were allowed to weigh in only at the hearing or
privately to you as well?
A Both.
(Id., 7/21-8/7 ; see also
id., 7/3-16) .
Based on the foregoing, it is clear that Phelan considered
ex parte contacts in his
consideration of the Application (which communications have been destroyed), and that he did
not understand his role in the proceedings
. Therefore, Phelan's vote should be stricken, and in
the event this matter is remanded, Phelan should be barred from voting on the Application
.
7. Philip
Salzer
Philip Salzer considered information conveyed outside the Record
. First, he relied on the
opinion of his fellow County Board member G
. Allen Mayer (a member of the opponent group,
the Sierra Club) as to substantive analyses of the Application
:
•
[by Mr
. Mueller] What was the purpose of your call?
A
I had a question about the hydraulically connected,
hydraulically connected the --
to the Sankoty .
#
4
k
Q [by Mr
. Mueller]
So you wanted to check that piece of
information out, and you called Mr
. Mayer?
A
I wanted to know what was meant by this hydraulically
connected -- how it was hydraulically connected to the landfill
.
• [by Mr. Mueller]
Well, the parts that he [Board member
Mayer] explained that you did understand, can you relate that to
us?
A
Well, that basically the Sankoty aquifer what I understood was
our drinking water was still hydraulically connected, and there
could be a danger to it.
80
(Salzer, Dep
. 8, 26/9-12, 27/3-7, 28/13-18 (regarding a conversation in March of 2006)
; see also
id., 29/18-30/13) . Moreover, Salzer
knew
when he asked Mayer about the aquifer that Mayer
was opposed to the Application :
Q [by Mr . Mueller] * * *
. So my question to you is, didn't you
know that he [Board member Mayer] was by that point strongly
opposed to this expansion?
A I assumed .
Q Then why would he be the guy that you would ask for
technical advice after all he's just a lawyer like me, he doesn't
know much? Why would you ask him for technical advice when
you could have figured that he's going to tell you, of course it will
pose a danger to the drinking water?
A
I asked him probably because I'm closer to him from the
standpoint of the Democrat party and we attend some meetings
together, so forth .
(Salzer, Dep. 8, 29/18-30/6) .
Second, Salzer admitted in his deposition that he
actually
considered opponent
information received
ex parte .
While he distinguished between credible and "crackpot"
communications, Salzer did believe that the information received from members of the public
outside the hearing and the Record could and should be considered in rendering a decision on the
Application . (Id.,
13/5-12, 12/9-13/4, 17/21-18/1, 17/1-20)
. Salzer testified that he destroyed
some of the communications he received
ex parte . (Id .,
46/24-47/8) .
Finally, Salzer appears to have predetermined his position regarding the Application,
without regard to the evidence. (Pearson, Dep
. 5, 21/3-11
; see also Dep. Exhibits Vol
. II, Ex . 25,
pg . 5, "I'm 67
. Do I want to Be Remembered as one Who Caused this?")
.
Based on the foregoing, it is clear that Salzer considered
ex parte contacts in his
consideration of the Application, and that he did not understand his role in the proceedings
.
81
Moreover, Salzer appears to have prejudged the Application
. Therefore, Salzer's vote should be
stricken, and in the event this matter is remanded, Salzer should be barred from voting on the
Application .
8 . Lynn Scott Pearson
Lynn Scott Pearson admitted that she thought she was supposed to consider information
gleaned from
ex parte communications :
Q [by Mr . Mueller] And you also said that you waited to make
up your mind until you had read everything that you could get your
hands on ; is that right?
A Everything that was presented to me, yes .
Q And that would include all of the e-mails that you got?
A Oh, yes
.
(Pearson, Dep . 5, 24/2-9 ; emphasis added; see also id., 24/16-25/14) . Pearson admitted
receiving "75 or 80" emails (id., 9/21-10/4), "[p]robably somewhere around 50" letters (id., 11/5-
7), and "around maybe 40-plus" telephone calls (id., 16/9-18) during the proceedings on the
Application
. Pearson destroyed the letters she received (id., 13/1-7), and disclosed no documents
in discovery in this appeal .
Pearson further testified that she received communications from Joyce Blumenshine, the
Chair of HOI Sierra, in person, during the proceedings on the Application, and that she credited
Ms. Blumenshine's opinion regarding the Application because of her affiliation with HOI Sierra .
(Id., 32/7-9, 31/22-32/6) .
Based on the foregoing, it is clear that Pearson considered ex parse contacts in her
consideration of the Application, and that she did not understand her role in the proceedings
.
82
Therefore, Pearson's vote should be stricken, and in the event this matter is remanded, Pearson
should be barred from voting on the Application .
What sets this case apart from some others where bias and prejudice are alleged is that in
this case, the bias and prejudice of six (6) County Board members is proven directly through
their own admissions. The evidence in this case is not circumstantial, and PDC is not asking that
any "inferences" be drawn
. Six (6) County Board members, by their own words, did not perform
their statutory duty to make an impartial decision based only on the evidence . The only
explanation is that the systematic barrage of ex parse contacts, initiated and sponsored by
PFATW and HOI Sierra, was so pervasive that County Board members came to believe that it
was a legitimate part of the process .
C. The proper remedy for the gross unfairness of the proceedings on the
Application is approval of the Application or, if the Application is
remanded, payment of PDC's costs incurred in the previous
proceedings on the Application .
Once the Pollution Control Board inevitably determines that the proceedings on the
Application were fundamentally unfair, the Board will be made to determine whether remand or
reversal of the County's decision is appropriate under the circumstances
. It is clear in this case
that reversal is mandated . If these proceedings are, however, remanded, the Board should
require the County to pay PDC's costs incurred in the previous proceedings on the Application,
as PDC should not be compelled to pay twice for one fair hearing.
Based on the relevant case law, the purported decision of the County must be reversed
.
In Southwest Energy Corp
. v. Illinois Pollution Control Bd ., the Fourth District Appellate Court
affirmed the ruling of the Pollution Control Board finding that a tour of the relevant facility by
some City Councilors during the proceedings on a siting application mandated reversal on
fundamental fairness grounds, "because the incinerator opponents
were not given equal access to
83
information obtained by the council members ." 275 III.App.3d
84, 95, 655 N .E.2d
304, 311, 211
Ill .Dec . 401, 108 (4 Dist
. 1995) (emphasis added) .
Therefore, the Court found that "[i]t is
irrelevant to that decision whether the tour caused the council members to prejudge the siting
application ." Id. ; see also SPILL,et al.
v. City of Madison, PCB 96-91, 1996 WL 154321
(IPCB, March 21, 1996)
. In this case, PDC was given no access to the information given by
opponents to Board members
ex parse .
This case is the "perfect storm" of fundamental unfairness
. The gravity of the
ex parte
communications (the content, the sheer volume, the unrelenting frequency, and the premeditated
nature of same) is absolutely mind-boggling
. There are no reported cases reflecting anything
like the magnitude of the ex parte
communications in this case . The ex parte contacts
in fact
influenced the County's decision
-
half the Board members who voted against approval of the
Application admitted that they considered
ex parte
communications in making up their minds on
the Application
. The parties making the improper contacts, namely, PFATW, HOI Sierra and
other opponents, got precisely what they wanted from the County
. While PDC was
contemporaneously aware that some
ex parse communications had occurred during the
proceedings on the Application, PDC had no idea of the volume of the communications, had no
way of knowing the content of same, and had no opportunity to respond to same (especially as to
the hundreds of contacts that occurred after the public comment cutoff on March 29, 2006)
. See
City of Rockford, supra, 1987 WL 56379, *16
; see also,
Waste Management of Illinois, supra ;
Fairview Area Citizens Taskforce, supra
.
Clearly, given (1) the degree of unfairness in this case, (2) the total failure of the County
Board to understand its role or the importance of avoiding and disclosing
ex parte
communications, and (3) the persistent failure of the County Board to disclose
ex parse
84
communications and the destruction of documents subsequent to the May 3, 2006 meeting,
vacation of the County's purported decision and remand for new proceedings would not serve a
useful purpose
. In this case, the County's "action was so patently not quasi judicial that the
limited first aid available under remand is incapable of rehabilitating the record to the point
where the record can support a proper decision ."
Concerned Citizens for a Better Environment
v. City of Havana and Southwest Energy Corporation,
PCB 94-44, 1994 WL 394683, * 1 (IPCB,
July 21, 1994) (Order on motion for reconsideration) . The County claims to have exercised its
best efforts to ensure the fairness of the proceedings on the Application previously, yet the
County permitted over 1,000 (provable) written
ex parse contacts to occur with County Board
members, and failed utterly to instruct the County Board members as
to their proper roles in the
process. The rampant destruction of ex parte
documents since the May 3, 2006 hearing would,
in any case, make it impossible to cure or negate the impact of such documents .
In the event that this matter is remanded for new proceedings on the Application, PDC
requests that it be awarded its costs incurred in the previous proceedings on the Application, and
in this appeal
. The County created a process for adjudication of the Application that was
manifestly inadequate to prevent
ex parte communications . PDC has prove n
that more than
1,000
written
communications were received by Board members and not disclosed to PDC
during the pendency of the proceedings on the Application
. In addition, PDC has proven that of
the twelve (12) County Board members who voted against approval of the Application, six (6)
believed they could consider the
ex parte contacts they received in rendering their decisions on
the Application, as set forth above
. Finally, two (2) of the County Board members failed to
disclose their membership in a registered opponent organization until the County Board meeting
on May 3, 2006
. Based on the foregoing, it would be a miscarriage of justice to require PDC to
85
pay the cost of two hearings regarding the Application, when it would be entirely the fault of the
County that the second hearing be required .
The costs incurred by PDC in the first hearing that would be duplicative of costs incurred
in a hearing on remand are reasonably estimated to be $505,865
.95. On June 28, 2006, the
County billed PDC $242,092 .66 (after crediting PDC the $50,000 filing fee previously paid), for
County Staff review reimbursement for 2005, engineer and legal expenses incurred from
November 14, 2005, through June 28, 2006, and other hearing-related expenditures
. A copy of
County invoice no . CoAdm06282006, dated June 28, 2006, is attached herewith as Exhibit 1
.
On August 1, 2006, the County billed PDC $41,534
.03, for County Staff review reimbursement
for 2006 and other miscellaneous expenses
. A copy of County invoice no . CoAdm08012006,
dated August 1, 2006, is attached herewith as Exhibit 2 . PDC incurred $222,239
.26 in expert
and other costs related specifically to the hearing (i.e., not including preparation of reports
submitted with the Application) .
An accounting prepared by PDC is attached herewith as
Exhibit 3 . Therefore, the total amount that should be paid to PDC by the County if this case is
remanded for a new hearing is $505,865
.95 .
III.
THE PURPORTED DECISION OF THE COUNTY WASAGAINST
THE
MANIFEST WEIGHT OF THE EVIDENCE, AND WAS OTHERWISE
IMPROPER UNDER THE LAW .
As detailed in PDC's Motion for Summary Judgment (415 ILCS §5/39
.2(e)) and the
Memorandum in Support thereof, filed on November 20, 2006, and in PDC's Reply in Support
of its Motion for Summary Judgment (415 ILCS §5/39
.2(e)), filed on December 28, 2006, the
County Board
did not take final action
on the Request for Local Siting Approval, neither
approving nor denying the Application
. Additionally, the County never issued, to this day, a
decision "in writing, specifying the reasons for the decision" as required by law and regulations
.
86
Instead, the County offers, in this appeal, what it calls the "Record and Transcript of
Peoria County Board's Decision and Findings" (C13710-48), consisting of (1) a recommended
Resolution for approval of the Application (not acted upon by the County Board), (2) an undated
transcript of the May 3, 2006 County Board meeting, (3) four pages bearing handwritten notes,
possibly taken by the County Clerk during the May 3, 2006 County Board meeting, and (4) the
"Recommended Findings of Fact" filed with the County Clerk on April 27, 2006, which were not
adopted as written . The transcript of the May 3, 2006 meeting was not actually approved and
adopted by the County Board until its meeting on June 8, 2006, the day after PDC filed its
Petition for Review in this case and the 36th day after the May 3, 2006 meeting ; the minutes of
the June 8, 2006 meeting were not submitted by the County to the Pollution Control Board in this
appeal
. Nonetheless, and without waiver of the arguments in its Motion for Summary Judgment
(415 ILCS §5/39.2(e)), supra, PDC will for purposes of this argument, treat those
"Recommended Findings of Fact" as actual findings made by the County Board in support of its
purported denial of the Application on substantive siting Criteria i, ii and iii, and its imposition of
special conditions as to Criterion v, with one caveat
: the Recommended Findings of Fact as to
Criterion ii were amended by oral motion at the May 3, 2006 meeting
. The "amended"
Recommended Findings of Fact will form the basis for PDC's analysis, below
.
The findings for Criteria ii and iii, with the exception noted above, were prepared by the
County Staff and represent essentially one of three sets of alternative proposed findings prepared
by the staff
. The County Staff, which has the only technically qualified people involved in the
process at the County's end, actually recommended approval with certain conditions and
prepared a set of findings consistent with that recommendation
. Accordingly, the findings
87
ultimately used by the County Board do not represent the recommendation of its technically
qualified staff.
The findings of fact on Criterion i are the handiwork of Board member G
. Allen Mayer,
the secret, undisclosed member of the Sierra Club, a registered party opponent during the siting
proceedings . (See Tr. 4/6/06, 127-33, C????).
A. The causes for the County Board's failure to weigh the evidence
properly
With respect to all three of the disputed criteria, PDC's conclusions were unrebutted by
other sworn testimony . In the case of Criteria i and iii, no witnesses other than PDC's experts
testified . The opposition groups did offer Charles Norris, a geologist, to testify on Criterion ii,
but as will be explained in detail in the specific argument on that Criterion, Norris' testimony, in
anticipation of vigorous cross-examination, was cautious and restrained
. He questioned a few of
the specific findings in PDC's comprehensive site investigation, but he never challenged the
conclusions of any of PDC's experts that the facility was so designed, located and proposed to be
operated that the public health, safety and welfare would be protected
. Interestingly, in post-
hearing written comment, Norris, no longer under oath or subject to cross-examination, did a
"one-eighty," disavowed his previous sworn testimony, and replaced it instead with reckless
allegations about contaminants from even the highly-engineered portion of the facility leaking
into the environment
. Therefore, the expert conclusions of all of PDC's expert witnesses on these
three disputed Criteria were unrebutted by competent, sworn evidence .
The County Board is not free to disregard the absence of credible evidence in making its
decision
. The County Board is not free to base its decision on speculation or unreliable or
incompetent evidence
. In order to rule against the Applicant on any of the substantive siting
criteria, the County Board must find competent rebuttal or impeachment evidence in the record
.
88
Industrial Fuels & Resources, Inc . v
. Illinois Pollution Control Board, 227 Ill.App.3d 533, 592
N.E.2d 148, 169 I11.Dec. 661 (1 Dist. 1992)
. Once the Applicant makes a prima facie case on a
Criterion, the burden falls to opponents to rebut that case . Claims by the opponents, contrary to
the Applicant's conclusions, are insufficient if not supported by competent evidence .
In addition to its systematic program of improper political influence, the opposition
groups substituted speculation, hysteria and generic anti-landfill rhetoric for site-specific
scientific evidence
. The opposition case truly is described as a tale "full of sound and fury,
signifying nothing."
The obvious next question then becomes why the County Board purports to have denied
PDC's Application in the absence of competent evidence rebutting PDC's conclusions? In
addition to the obvious answer that the County Board was driven by an overwhelming barrage of
improper prejudicial ex parse contacts, an additional explanation can be gleaned from the
findings of the County Board itself, findings which suggest that the County adopted speculation,
rhetorical questions and unsubstantiated fears as evidence, with far-reaching ramifications
.
1 . The County imposed an impossible burden of proof.
First of all, the County Board held PDC to an impossible burden of perfect proof and
absolute assurances . For example, on Criterion i (the "need" Criterion), the first three somewhat
redundant findings in support of the conclusion that the facility is not necessary to accommodate
the waste needs of the area it is intended to serve, criticize PDC's expert witness, Sheryl Smith,
for using 2001 hazardous waste generation data rather than 2003 data, which allegedly shows a
"significant decline" in hazardous waste generation rates from 2001 to 2003
. The facts
are that
the 2001 data was the most recently available data at the time Ms
. Smith prepared her report, and
that the 2003 data was not released until November or December of 2005 (Tr
. 2/23/06, 187
;
89
C7504), while the Application was filed on November 9, 2005
. The "significant decline" in
reported hazardous waste generation is 16,000 tons, and represents only about
0 .73% of the 2
.2
million ton capacity shortfall painstakingly documented by Ms
. Smith
.
With regard to Criterion ii, a major finding in support of the conclusion that the facility is
not so designed, located and proposed to be operated that the public health, safety and welfare
will be protected is that "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
." This finding is so vague that it is almost impossible to rebut, but it is also not true
. Dr.
David Daniel testified that the HDPE component of the liner system would slowly degrade over
hundreds to thousands of years, but that the recompacted clay liner would actually improve in
function over that time and would be present and functional even a thousand years from now
.
(Tr. 2/22/06, 111 ; C7387) .
Combining this with the testimony of Charles Norris, the
opposition's only expert, that leachate from a landfill substantially cleans up over time to the
point where it is no longer harmful, leads to the inescapable conclusion that there is no long-term
threat regardless
of the more fundamental concern of whether it is even appropriate for the
County to require a 100% assurance of safety into perpetuity
.
The IEPA requires demonstration through appropriate modeling that releases from a
facility will not impact groundwater for an additional one hundred years after the post-closure
care period
. PDC's groundwater impact assessment conclusively demonstrated the absence of a
negative impact for 500 years after post-closure care .
Somehow this number was still
insufficient for the County, and somewhere along the way, the relevant timeframe for the
County's evaluation of the safety of PDC's design and engineering became eternity
. This is an
impossible requirement .
90
2. The
County elevated speculation to the level of fact
.
In addition to requiring PDC to meet impossible and unreasonable burdens of proof, the
County Board also unfairly and improperly elevated unsupported speculation regarding future
harm and future impacts to the level of competent evidence that rebutted PDC's conclusions .
For example, with regard to Criterion ii, the County found that 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."
Again, this statement is so vague as to be almost incapable of rebuttal, but by far the
more important observation is that these statements are factually untrue and unsupported by any
evidence
. The two local doctors who testified did indicate that Peoria had relatively high cancer
rates, but refused
to link the same to PDC or any other specific cause or activity . They also
testified that some of the substances disposed of by PDC pose known health risks when ingested
by humans
. None of this testimony, however, provides any support for the County's findings,
because these two doctors (who were admittedly completely unfamiliar with even the general
principles of PDC's design and operation) were unable to identify an exposure pathway by which
materials disposed of at the PDC landfill are ingested by people
. Nonetheless, the doctors, and
the unsophisticated County Board, found this unspecified, undocumented risk unacceptable
.
In Criterion iii, the County Board's findings are all either speculative or irrelevant and are
generally characterized by the completely unsubstantiated and undocumented assumption that
proximity alone equates to impact
. Additionally, the County Board seems to assume that any
impact equals a failure of proof on the part of PDC when, in fact, the statute only requires PDC
to prove that its facility is so designed and located as to minimize impact .
91
The last common thread in the County's purported negative decision on Criteria i, ii and
iii is that the County frequently responded to unrebutted expert testimony with its own analysis,
analysis that generally did not address any testimony or evidence and, worst of all, analysis that
was so vague that it could not justify the conclusion reached
. A specific discussion of the
evidence and the County's findings on each Criterion will further demonstrate this pattern
.
B. Criterion is The facility is necessary to accommodate the waste needs
of the area that it is intended to serve .
Because PDC receives three separately identifiable waste streams, it presented three
unique needs analyses to the County Board
. These identified a service area for each waste
stream (hazardous waste, manufactured gas plant remediation waste and non-hazardous process
waste) and documented a capacity shortfall during the proposed service life of the expansion for
each waste stream
. PDC has an absolute right to define its own service areas . Metropolitan
Waste Systems, Inc
. v. Illinois Pollution Control Board, 201 I1I.App.3d
51, 558 N .E .2d 785, 146
II1 .Dec. 822 (3 Dist . 1990),
appeal denied, 135 II1 .2d 558, 564 N .E .2d 839, 151 I1I
.Dec. 384
(1990)
. This single point of law renders all of the extensive public comment that Peoria should
not receive hazardous waste from remote areas irrelevant .
PDC's approach to documenting significant need in the form of disposal capacity
shortfalls in each of its three waste streams was fairly conventional
.
Sheryl Smith, a waste
planner of significant experience, testified that she used past waste generation data to project
future generation volumes and that she subtracted from these volumes the existing disposal
capacity reasonably available
. This included both disposal capacity within the respective service
areas and disposal capacity outside the service areas, but still deemed reasonably available
. She
also factored in source reduction, recycling, incineration and other technologies which had the
capability of reducing shortfalls
. In the areas of hazardous waste and non-hazardous process
92
waste, the analysis demonstrated significant shortfalls, even with the proposed expansion
. In the
case of manufactured gas plant remediation waste, the analysis was even easier
; the service area
for this waste stream is the State of Illinois and PDC is the only facility within the state that
receives this waste . As of June, 2005, ninety-two (92) manufactured gas plants throughout
Illinois remain to be remediated (Tr . 2/21/06, 120 ; C7297), and none of that waste has anywhere
to go if PDC's expansion is not granted.
Other than the usual and expected public comments about Chicago garbage and out-of-
state waste, there was no other testimony on this issue . Nonetheless, the County made 14
separate findings in support of a conclusion that the facility is not necessary to accommodate the
waste needs of the area it is intended to serve . These are listed below, with PDC's response after
each:
1 .
Applicant failed to use the most recent USEPA data on hazardous waste
generation
.
Response : This is untrue
. Sheryl Smith's report contained the 2001 data which was
the most recent available at the time the report was prepared
. The 2003 data was released in
November or December of 2005, while the Application was filed on November 9, 2005
.
2 .
USEPA data from 2003 reported in 2005 shows a significant decline in hazardous
waste generation rates in their hazardous waste service area .
Response :
A 16,000 ton decline can hardly be considered significant when the total
projected hazardous waste shortfall is 2 .2 million tons (a decline of 0
.73%).
3 .
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
.
Response :
That is the same 16,000 ton reduction that represents 0
.73% of the total
projected shortfall, in only the hazardous waste component of the total
.
4.
Applicant's expert Smith testified that there are a decreasing number of hazardous
waste landfills in both the service area and the nation
.
Response :
Common sense suggests that this would
increase the need for the PDC
expansion.
93
5 . 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
.00 per ton to an average of $80-85 .00 per ton.
Response :
This is irrelevant . Absent additional evidence, the relationship between
price and need is totally speculative .
6 .
While not subject to cross-examination, Applicant's statement about price is
deemed reliable as a statement against interest
.
Response :
Absent evidence of what market forces are acting on price, this conclusion
is completely unjustified .
7.
A decrease in price during a time period when the number of hazardous waste
landfills is decreasing suggests decreasing demand for disposal capacity
.
Response :
This is the third finding on the same hearsay newspaper article on which
PDC's Vice-President, Ron Edwards, was never cross-examined . The relationship between the
statement and the issue of need remains speculative and unexplained .
8.
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 .
Response :
Agreed. Ms
. Smith took this into account in projecting her 2 .2 million ton
shortfall
. "Gradual" as used in this finding is more accurately thought of as "minimal ."
9
.
Daniel was qualified by Applicant as a national expert on hazardous waste and
landfill design and technology .
Response:
Agreed (though the County Board seemed to forget this when completely
disregarding Dr
. Daniel's testimony in ruling on Criterion ii) .
10.
In her report, Applicant's expert Smith assumed a constant rate of hazardous
waste generation in the service area from 2001 until 2029
.
Response :
Absent evidence of whether there will be a further gradual decline or an
increase, this would seem the most prudent assumption
. The most recently documented decline
in generation has a
less than minimal effect on the total projected capacity shortfall
. This finding
also addresses only one of the waste streams disposed of at PDC, and the capacity shortfall in
each of them .
11 .
However, the evidence provided by USEPA 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
.
94
Response :
It indicates a minimal reduction that does not impact the end result of the
analysis and does not even address the two other waste streams which PDC receives
.
12 . An annual reduction in hazardous waste generation in the service area of between
one and two percent and therefore, consistent with the USEPA data, would reduce the capacity
shortfall that Applicant's expert Smith estimated in her report for hazardous waste by hundreds
of thousands or even millions of tons .
Response :
The finding itself admits that there will still be a shortfall, which means
that there is a need for the facility . Nothing in the Record supports the speculation that
hazardous waste reduction could reduce the shortfall by millions of tons .
13 . 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.
Response :
She did supply her 20+ years of experience and expertise, her professional
credentials and her knowledge in the area, which is more than any other witness supplied
. The
fact that the County refers to unrebutted testimony by a qualified, credible expert witness
subjected to cross-examination an "assumption" is typical of the County's unscientific method of
analyzing the evidence
. This type of finding, which is seen over and over, is why the County's
decision is against the manifest weight of the evidence.
14. The 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 of the service area
.
Response : Ms
. Smith testified that she considered all of these factors to the extent
that she deemed them, based upon her expertise, relevant or necessary
. In the absence of actual
evidence to the contrary, who is to say that this is not full consideration and, even if it is not full
consideration, who is to say that a more full consideration would change the outcome
. The
capacity shortfall over the next 20+ years for hazardous waste is enormous, and that fact remains
undisputed.
The County Board made no findings of fact whatsoever with regard to the need for the
expansion to accommodate the capacity shortfalls in the other two waste streams which PDC
presently receives, manufactured gas plant remediation waste and non-hazardous process waste
.
Based upon this alone, the County's finding that the facility is not necessary is against the
manifest weight of the evidence .
95
C. Criterion ii :
The facility is so designed, located and proposed to be
operated that the public health, safety and welfare will be protected
.
It is not necessary to restate and resummarize the extensive evidence presented by PDC
in support of this Criterion
. The Statement of Facts earlier herein only scratches the surface in
identifying the wealth of evidence presented by PDC
. The Application consists of thousands of
pages, the majority of which are devoted to this Criterion
. PDC called five expert witnesses who
testified regarding various aspects of this Criterion
. The total of their testimony is well over 700
pages
. Each of these witnesses was compelling in his own way, but perhaps the most persuasive
and compelling was Dr. David Daniel
. He is currently a University President, formerly Dean of
the College of Engineering at the University of Illinois, and now Chairman of the specially
appointed committee of civil engineers studying the reasons for the levee failure in New Orleans
.
Dr
. Daniel is, without question, the foremost expert in the United States on solid waste disposal
technology and engineering. Dr
. Daniel is not a company employee
. Dr. Daniel is not a "hired
gun." Dr
. Daniel peer-reviewed the engineering and geologic aspects of the proposal and
concluded, without reservation, that the facility is so designed, located and proposed to be
operated that the public health, safety and welfare will be protected
. (Tr . 2/22/06, 121, 122 ;
C7487-88) .
Perhaps the most important factor ignored by the County in its consideration of this
Criterion is that the facility has been operating continuously, and has not had a
single
violation of
a State or Federal law or regulation in
thirteen (13) years . (Tr
. 2/21/06, 78 ; C7287) . In fact, the
PDC No
. 1 Landfill has the best record in the hazardous waste disposal industry, nationwide
.
(Id.) In the case of
Industrial Fuels & Resources/Illinois, Inc
., supra, mere compliance with
minimum governmental regulations, coupled with a good plan of operations, was held to show
satisfaction of Criterion ii:
96
[T]he undisputed fact is that all governmental minimum standards
have been met and exceeded and that the facility will employ state-
of-the art technology to ensure safe levels of emissions in the
ordinary operation of the plant
. Nothing indicates that Industrial's
controls and procedures, safety features, training of personnel, or
security systems are substandard or create a significant safety
hazard.
227 I11.App.3d at 547, 592 N .E.2d at 157, 169 II1 .Dec. at 670. Therefore, PDC may be said to
have proven its case on Criterion ii, even without regard to the hundreds of pages of analysis
submitted by PDC's various expert witnesses .
1 . The theories of Charles Norris are not credible or supported by facts .
The credibility and expertise of Dr
. Daniel stand in sharp contrast to the testimony of
Charles Norris, an itinerant, self-employed geologist who admitted that he has given essentially
the same stereotypical testimony about rapid preferred pathway migration of contaminants out of
landfills at more than a dozen siting hearings in Illinois .
Mr
. Norris' credibility is undermined by his obvious bias . He has expressed the same
theories on behalf of citizens' groups opposed to landfill development or expansion over and
over
. However, on the only occasion when Mr . Norris was retained by a County conducting a
siting hearing to be an "independent expert," he found that the proposed landfill site was
geologically and hydrogeologically suitable for landfill development
. In that case, in Wayne
County, Mr . Norris endorsed the siting application and the proposed site, in spite of the facts that
the application consisted of only one volume, and that the section in the application on
hydrogeology was only two and one-half (2-1/2) pages, and that there were only five soil borings
conducted, and that there were no hydraulic conductivity tests performed . (Tr
. 2/24/06, 187-190;
C7617-18) .
97
Additionally, Mr
. Norris' theories about rapid water flow through fractures and inter-
connected sands are entirely unsupported by evidence
.
He conceded that the geologic
characterization by PDC's expert team was "reasonably close
." (Tr
. 2/24/06, 228 ; C7627)
. His
belief that the occasional sand stringers and lenses underneath the site are inter-connected is,
therefore, pure speculation
. His reliance upon the fact that the clay till is weathered as support
for rapid water movement through the till ignores the fact that the weathered portion of the till is
generally above the proposed bottom elevation of the landfill expansion
.
On cross-examination, Mr
. Norris was explicitly asked whether he was saying that
any
disposal unit at the PDC site, including closed units which are not the subject of the Application,
are leaking
. His unequivocal answer was, "no, I'm not."
(Tr . 2/24/06, 209 ; C7622) . What is
truly shocking then is Mr
. Norris' about-face on this issue, once he was no longer under oath and
no longer subject to cross-examination
.
Anyone can spew reckless, untrue and unsupported
garbage into the Record under the guise of public comment when they are not under oath, and
that is exactly what Chuck Norris did
. After he repudiated virtually all of his sworn testimony in
his written public comment submission, he is the poster boy for why public comment should be
given little, if any weight, compared to sworn testimony subject to cross-examination
.
35 Il1 .Adm.Code
§101
.628(b) mandates that public comment must be received and
considered at this type of hearing, but cautions that,
Written statements submitted without the availability of cross-
examination, will be treated as public comment in accordance with
sub-section (c) of this section and will be afforded less weight than
evidence subject to cross-examination
.
The principle that public comments are not entitled to the same weight as expert
testimony submitted under oath and subject to cross-examination, and should instead receive a
lesser weight, has been consistently endorsed by this Board
. See, e.g., City of Geneva v. Waste
98
Management of Illinois, Inc.,et al.,
PCB 94-58, 1994 WL 394691, *12 (IPCB, July 21, 1994) ;
Donald McCarrell and Ann McCarrell v. Air Distribution Associates, Inc .,
PCB 98-55, 2003 WL
1386319, *3 (IPCB, March 6, 2003) ; Landfill 33, Ltd . v
. Effingham County Board and Sutter
Sanitation Services, Stock & Co. v. Effingham County Board and Sutter Sanitation Services,
PCB 03-43 & PCB 03-52, 2003 WL 913440, *8 (IPCB, February 20, 2003)
.PDC filed a critique
of Mr
. Norris' written public comment in which it pointed out the numerous places where Mr .
Norris, in order to support his new and wild allegations of leakage from the facility, decided to
abandon the truth altogether
. For example, Mr . Norris incorrectly identified a large volume of
leachate as having been removed from the unit CI secondary leachate collection system, when
the volume that he referenced is actually the total of the leachate removed from both the primary
and secondary leachate collection systems . It serves no further purpose in this Brief to identify
all of the other places in his written public comment where Mr
. Norris was either intentionally,
or otherwise, "mistaken" on the facts
. His written statement is impeached in its entirety by his
sworn testimony
. Nothing in the sworn testimony supports the County's finding that the facility
is not so designed, located or proposed to be operated that the public health, safety and welfare
will not be protected .
2. No
other competent evidence was presented by the opponents
.
The opposition groups called no witness to comment on the facility design, a critical and
complex component of a modem hazardous waste facility
. PDC proposed what is essentially a
triple composite liner system for the horizontal expansion
. The only sworn testimony that even
arguably addressed the design was that of Timothy Montague, a graduate student and anti-
landfill "researcher" who gave a generic presentation comparing the disposal of treated and
stabilized solid waste at PDC to the open dumping of bulk liquid toxins at Love Canal
. Even
99
though Mr. Montague was unfamiliar with the design components of the PDC facility, or even
the design standards for a hazardous waste landfill, he did "opine" that all engineered systems
would eventually fail because of the second law of thermodynamics by which everything will
eventually "spontaneously break apart and diffuse into the universe ." (Tr
. 2/27/06, 246 ; C7837) .
(Mr. Montague was, however, unable to name the scientist who discovered the second law of
thermodynamics (primarily, Sir Isaac Newton) on cross-examination . Tr. 2/27/06, 246 ; C7838 .)
The testimony of Mr. Montague represents everything that is wrong with the opposition
presentation in this case. Mr. Montague's comments were generic in nature, they were based
upon problems and health impacts resulting from open dumping prior to government regulation
of waste disposal, and they were made without knowledge of PDC's engineering and without
knowledge of PDC's waste receipt and disposal practices
. They were comments based upon
fear, and irrational fear at that
.
The same fear was expressed by Dr . Vitas and Dr . Zwicky, the two local doctors who
also could not articulate a single scenario in which such fear might become reality
. However,
combined with the relentless ex parse
lobbying of the organized citizens' groups, these fears rose
in the estimation of the County Board to the level of evidence sufficient to find against PDC
.
Heavily relied upon by the opposition groups and apparently heavily credited by the
County Board was the unsworn, written public comment of G . Fred Lee, a well-known, internet-
based, landfill opponent .
Lee's comments lack the reliability of sworn testimony subject to
cross-examination
. They are also for the most part generic rather than site-specific, representing
a recycling of the four themes that characterize all of his presentations and commentaries
.
Lee's first theme is that State and Federal landfill regulations are inadequate to protect
the public. Of course, Lee failed to identify any
specific regulation that is inadequate or to
1 00
otherwise detail this allegation
. Any decision by the County Board that accepts this proposition
is inherently against the manifest weight of the evidence, and against the entire regulatory
structure in this state.
In making his argument, Lee demonstrated his ignorance of the Application by repeatedly
referring to the inadequacy of subtitle D regulations
. These regulations address non-hazardous
solid waste disposal while subtitle C regulations, which are much more stringent, regulate
hazardous waste disposal
. Mr
. Lee, obviously, did not read PDC's Application
. Equally
disturbing, Lee referenced other articles as some sort of substantive support for his conclusions,
but these articles are not learned treatises or peer-reviewed journal articles by other authors
.
Instead, they are nothing more than his and his wife's earlier written presentations
.
Lee's second theme is that all containment systems will eventually fail
. Again, he
provided no support, other than his own other earlier writings
. Mr
. Lee again sited no scientific
evidence but instead referenced two of his previous articles,
Flawed Technology of Subtitle D
Landfilling of Municipal Solid Waste,
(Lee and Jones-Lee, p.9)
and Superfund Site Remediation
by Landfilling
(Lee and Jones-Lee, p
.5)
.
His expressed opinion in those articles that clay liners
have a "finite period of time over which they can be effective" is directly contradicted by the
sworn testimony of Dr
. David Daniel, an eminent engineer and recognized expert in the field
.
Mr
. Lee's third point is that a thirty year period of post-closure care for a landfill is
inherently inadequate
.
Again, he failed to explain why he takes issue with the regulatory
agencies that have set this standard and, again, he failed to provide any scientific evidence in
support of his assertion .
Mr
. Lee's last theme, again stated as an article of faith rather than as a scientifically
provable conclusion, is that leachate that leaves a landfill will pose a threat forever
.
This
101
unsupported and unsworn assertion by Lee was certainly a factor in the decision of the County
Staff and PDC to develop a workable Perpetual Care Fund that would protect the facility for as
long as the wastes conceivably pose a threat, and theoretically, until the end of the earth
.
Nonetheless, Mr
. Lee's assertion is incorrect and contradicted by all of the sworn evidence in the
record
. Both Dr. Daniel and Dr
. Barrows discussed at length the process by which sorption or
attenuation will remove any metals from leachate as fluids pass through the thick layer of clay
underlying the site, as well as the processes of biodegradation as leachate travels through soil and
groundwater, breaking down complex organics into simple, benign molecules
. Even Mr. Norris
acknowledged that this process will occur, so that in time, leachate from the facility no longer
poses a threat .
3 . PDC's
Perpetual Care Fund proposal guarantees long-term safety
.
When confronted with the realization that the County Board wanted a guarantee that the
expanded PDC landfill would be safe for all eternity, PDC offered and the County Staff accepted
the concept of a Perpetual Care Fund which would pay for maintenance, repairs and monitoring
from the end of the statutory post-closure care period into perpetuity
. This answers the question
at page 10 of Mr
. Lee's report of, "who will be responsible for the ad-infinitam post-closure care
that will be needed for this landfill?" Once again, Mr
. Lee's report demonstrates that he had no
knowledge of the facts of this particular case
.
In one of its post-hearing submittals, PDC advised the County that guaranteeing that the
expanded facility would not pose a threat "forever" exceeded the scope of a reasonable
timeframe during which the safety of the proposed facility should be judged
. The County Staff
correctly pointed out that, "the County Board cannot impose conditions upon approval or make a
1 02
decision on the Application which is inconsistent with applicable laws and regulations ." (Supp .
Staff Report, p . 8 ; C139563) .
PDC's confidence that the site will not pose a future threat within any relatively
foreseeable timeframe is based upon the extensive site characterization which makes the site
understandable and predictable, the state-of-the-art engineering in the design and the
groundwater impact assessment, which shows no impact whatsoever for the 500 year period
during which potential impact was modeled . None of these facts was rebutted by any of the
opposition witnesses and even Charles Norris, the opposition's only technically qualified expert,
did not challenge any of these conclusions while he was still under oath and subject to cross-
examination
. PDC acquires further confidence from the fact that this facility has been permitted
at multiple levels on multiple occasions, signifying regulatory approval and agreement with its
site characterization and engineering concepts .
If Dr . Barrows' groundwater impact assessment showed no measurable impact on
groundwater quality 50 feet from the facility boundary 500 years after closure, one can be more
than reasonably confident that there will be no impact at the nearest municipal water supply well,
which is some 8,000 feet down-gradient, in the foreseeable future
. PDC acknowledged that the
uppermost aquifer, approximately 100 feet under the bottom of the proposed excavation, is
hydraulically connected to the Sankoty aquifer, which serves as a major regional source of
drinking water . However, the fact of the hydraulic connection alone does not support the bare
conclusion by opposition groups that expansion of the facility threatens the Sankoty aquifer
.
Given the fact that the groundwater impact assessment showed no measurable impact 50 feet
from the facility at 500 years, combined with the fact that groundwater at the site moves at 10
feet per year, combined with the further fact that the nearest domestic down-gradient well in the
103
Sankoty aquifer is 3,000 feet distant and the nearest municipal well down-gradient in the
Sankoty is 8,000 feet distant, any conclusion that the Sankoty aquifer is threatened by the
expansion is against the manifest weight of the evidence .
In light of the foregoing, a Perpetual Care Fund at this site is unnecessary and redundant .
Nonetheless, to calm the hysteria generated by the opposition group's ex parte pressure on
County Board members, PDC agreed to the County Staffs recommendation of a $3,375,000
perpetual care fund and suggested that the same be funded over a proposed 12 year service life
on a slightly scaled down expansion where there would be no vertical expansion over existing
trench CI . This equates to approximately $1 .88 per ton of waste expected to be received at the
facility, a figure actually higher than the $1 .50 per ton calculated as necessary by the County
Staff. The $5 .00 per ton funding figure imposed by the County Board as a special condition on
Criterion v has no basis anywhere in the evidence or the Record, and its sudden genesis at the
April 6, 2006, meeting of the County Board represents nothing more than intent to impose a
confiscatory tax .
4 . The County's findings of fact.
A review of the specific so-called findings of the County Board on Criterion ii
demonstrates that the best of them are based on pseudo-science and the worst are based upon
irrational fear and speculation .
1 .
There is evidence that the existing landfill may already be leaking into the aquifer
.
Response:
This is contradicted by the testimony of all of PDC's witnesses, by the
County Staff report and also by the sworn testimony of Charles Norris
. This statement is true
only to the extent that anyone considers Norris' about-face during the public comment period to
be evidence
. Moreover, the finding is further rebutted by the fact that the IEPA has only ever
required "detection" monitoring at the PDC No
. 1 Landfill, rather than "compliance" or
"corrective action" monitoring, and the "groundwater is in full compliance with the IEPA and
U.S . EPA permit standards ." (Tr . 2/22/06, 50 (Liss), C7372)
.
104
2 .
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 .
Response: The existing facility is not leaking ; there was an issue as to chloride levels
in one well, down-gradient of closed unit C 1 . PDC's explanation regarding these chloride levels
and the fact that they were naturally occurring is unrebutted and is based upon sound scientific
principles. The bromide/chloride ratio, according to expert witness Kenneth Liss, ruled out
leachate as the source of high chloride levels in any monitoring well . Moreover, PDC was
prepared to accept as a condition of approval the County Staffs recommendation that there be no
vertical expansion over unit C1 which had a double composite rather than a triple composite
liner system and which is the unit upgradieut of the only monitoring well at which the County
Staff was unwilling to conclusively rule out the facility as a possible source of chloride . The
County Staff, to its credit, realized that their conclusion was not evidence and that their ultra-
conservative approach placed an impossible burden on PDC as reflected in the comments of staff
attorney, David Brown, on April 3, 2006, when he said, "the IEPA has concluded that these
things haven't come from the facility . And I think that the County staff has applied a higher
standard for that determination ." (Tr. 4/3/06, 78 ; C13373) . In any event, abandonment of
vertical expansion over unit C 1 renders the point moot from a public health, safety and welfare
perspective.
3 .
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
.
Response : This statement is only true as to the HDPE component of the liner system,
and really represents the County Board members' expression that they want a guarantee of no
liner failure for all eternity, and the County Board's complete disregard for the fact that natural
processes will render leachate harmless at "some time in the future ."
4 .
When those liners fail, leachate will begin migrating through the site, and will
eventually reach the groundwater under the site .
Response:
If this happens 10,000 years from now, the leachate will undoubtedly be
harmless . Again, this is nothing but the vaguest speculation .
5 .
The groundwater aquifer located under the site is, by the Applicant's own expert's
testimony, hydraulically connected to the Sankoty aquifer which is the primary drinking water
aquifer for the area.
Response :
This type of statement, once again, demonstrates the County Board's
pattern of completely unsupported speculation that there will be a threat or an impact . Proximity
to a drinking water aquifer (in this case, not that close a proximity at all) is not inherently bad .
6 .
If the drinking water wells for the area are contaminated, the cost of replacing the
water supply will be enormous .
105
Response :
This again assumes that drinking water wells will be contaminated when
there is absolutely no evidence to that effect .
7 .
The risk of contamination of the area's drinking water is not worth the short-term
economic benefits of allowing the expansion of the landfill .
Response
: The statement fails to quantify the risk because there is certainly no
evidence which quantifies or even positively identifies such risk . Denial of an application, based
upon a negligible and unquantified risk is against the manifest weight of the evidence
.
8.
The old areas of the site are not constructed to modem regulatory standards and
present unreasonable risks to the public .
Response :
The old areas of the site are not part of the Application . Nonetheless, PDC
offered, with its Perpetual Care Fund, to use those monies also for care of closed units which are
not part of the siting process
. Additionally, Dr . Daniel suggested that even these units pose no
threat .
9 .
The location of a hazardous waste disposal site over the aquifer is against the
stated policy of the Peoria County Board .
Response :
This is a non-evidentiary consideration and provides further proof that the
decision is against the manifest weight of the evidence.
10.
The design of trench C1 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 .
Response :
There is no evidence that the double composite liner system under trench
C1 is inferior . Dr . Daniel pointed out that modem disposal technology has not changed much
over the past 20 years because it is a demonstrated, proven technology but occasionally there will
be minor advances as people figure out how to "build a better mousetrap
." (Tr . 2/22/06, 100 ;
C7384) . This finding also ignores the fact that the County staff and PDC were in agreement that
there would be no vertical expansion over unit C1
.
11
. The testimony of opponent's 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 of other contaminants migrating into the groundwater from the glacial till
.
Response
: Fissures, weathering and sand seams are the mantra chanted by Mr
. Norris
at every landfill hearing where he testifies
. In this case, he was unable to identify any
of these
features in any of the soil borings, and he also did not take issue with the accuracy of the
Applicant's site characterization from a technical perspective
. More importantly, Norris did not
testify that there were leachate releases, carefully avoiding that statement while he was under
1 06
oath and subject to cross-examination
. He only speculated about releases when he mailed in his
public comment from a thousand miles away .
12.
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 direct conflict with the testimony of
applicant's experts, and in support of Mr . Norris' testimony.
Response : These wells are up-gradient of the facility so the subject contaminant is
not from the facility . There is no evidence how long the contaminant had been at either location,
so it is impossible to estimate contaminant travel time based upon these monitoring results
.
13 .
The increased levels of chlorides in the monitoring well down-gradient of trench
C1 also suggest the same conclusions.
Response: The PDC facility is located on what is essentially an uneroded mound and
the witnesses all agreed that, while it is substantially separated from the uppermost aquifer by a
thick unit of impermeable clay till and by a thick unit of unsaturated sand, at multiple locations
near the facility (including up-gradient locations), this uppermost aquifer recharges from and is
actually exposed to the ground surface
. Therefore, other manmade sources of chloride such as
road salt have easy access to the aquifer . Additionally, no one disputed the natural presence of
chlorides in the brackish groundwater above the Pennsylvanian bedrock .
14
.
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 .
Response :
Again, this is pure speculation as the finding fails to enlighten what these
questions are . Obviously, once again the County Board assumes that proximity equals impact
.
15 .
The facility, at its closest location, is a mere 300 feet from the nearest residential
property .
Response:
Again, proximity does not equal impact. .
16.
The close proximity of the residences raises serious concerns regarding the
potential adverse health effects the proposed landfill may cause to these residents
.
Response :
This is more of the same speculation driven by fear rather than by science
.
No pathway is identified by which these adverse health affects might occur
.
17.
The medical community has spoken out against the proposed expansion due to the
potential health risks posed by placing large volumes of hazardous waste so close to the residents
of the County .
107
Response :
Since the medical community could not identify a pathway for exposure
and since the two doctors who testified were unaware of the details of the siting application, a
statement such as this proves that the County Board caved into political pressure in making its
decision.
18.
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 .
Response : PDC's witnesses testified that there would be no pathways of potential
exposure and, thus, no adverse health effects on the citizens of the community
. In a sense, this
finding chastises PDC for being unable to disprove a negative
. Nonetheless, the thousands of
pages of results of soil borings, laboratory tests, permeability testing and all of the other testing
performed at this site by PDC represent the data, studies and reports to which this finding might
be referring .
19.
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 .
Response :
This finding is pure speculation and totally disregards the evidence that
waste will remain contained and will not have any impact on groundwater .
Moreover, this
finding disregards the testimony that the treatment of hazardous waste to land disposal regulatory
standards generally makes it less potentially harmful than municipal solid waste, as evidenced by
a comparison of hazardous waste facility leachate with municipal solid waste facility leachate
.
20.
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
.
Response :
This has already been fully addressed in the response to other findings
.
21 .
Applicant and opponents agree that protection of the groundwater is the primary
concern at the proposed facility.
Response :
If this statement is really true, the Application would not have been
denied
. As evidenced by its strong compliance record and history of employing liner systems
that exceed regulatory standards, PDC is committed to the protection of groundwater quality
.
PDC cannot, however, affirm whether the opponents truly understand actual versus mythical
threats to groundwater quality .
22.
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
.
Response :
This is not true
. The opponents offered assumption and speculation, while
PDC offered unrebutted scientifically-valid conclusions .
108
23 .
One area of concern for the County Staff was the groundwater impact assessment
conducted by PDC's experts Dr . Barrows and Ken Liss .
Response
: Kenneth Liss did not prepare a groundwater impact assessment . The
County Staff did not quarrel with the results of Dr . Barrows' work, although they had some
difficulty understanding all of his methodology .
24 . 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 .
Response :
Actually, the groundwater impact assessment conducted by Dr . Barrows
far exceeds that historically required by the IEPA for landfill permit applications .
25 .
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 .
Response :
That is not a bad thing .
26 . 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 .
Response : Actually, the flux through the liner system that was predicted by the
H .E.L.P
. Model (which conservatively assumed significant deterioration of the geomembrane)
was so small that Dr . Barrows based his modeling on only a single composite liner
conservatively disregarding the fact that the facility has a triple
composite liner .
27 . 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 .
Response : Dr. Barrows' conclusion that the facility would not have any impact for at
least 500 years on groundwater 50
feet from its boundary was unchanged . To the extent that Dr.
Barrows' conclusion are unrebutted they do not require verification by anyone .
It is also
disingenuous that the County Board would make a finding relative to the County Staffs inability
to verify a conclusion due to time constraints, but disregard entirely the County Staff's
recommendation that the facility be approved with conditions
.
28 .
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
.
109
Response: This is a perversion of the County Staffs report, which clearly states that
it was concerned only with unit Cl and that conditioning approval to preclude expansion over
that unit completely addresses the issue .
29.
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 .
Response:
That testimony is unrebutted .
30.
Mr. Norris disputed that conclusion by pointing to TOX sampling data .
Response: Mr
. Norris is incorrect, as Mr . Liss pointed out that, while he worked at
the IEPA in a regulatory capacity, the agency had abandoned TOX levels as a reliable
monitoring parameter, particularly in the areas with high naturally occurring chlorides .
31 . 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 .
Response : PDC had suggested and the County Staff had agreed to removal of the
surface impoundment, and replacement of same with free-standing leachate storage tanks, as a
condition of approval
. (See Tr. 2/21/06, 89; C7289) . Moreover, the Application clearly states
that, upon approval of the expansion, PDC would replace the surface impoundment with a
double-wall aboveground storage tank
. (Application, pgs . 2.3-13-14; C245-46, and drawings S-
4, S-6 and S-7 ; C263, C265 and C266). Inclusion of this "finding" suggests a lack of
understanding of PDC's proposed design .
32 .
A number of the opponents and their witnesses call into question the safety of the
inactive portions of the site .
Response :
It is easy to question anything . No evidence exists that these units are not
safe. Moreover, these inactive units are not part of the Application
.
33 . "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 that only with the imposition of numerous special conditions could criterion two be
satisfied." 3
Response: This is in effect a finding that PDC
hadproven its case, because PDC had
agreed to accept the conditions in the County Staff report. (In fact, PDC had proposed most of
the conditions itself during the hearing)
. With this finding by the County, a vote against siting
approval subject to these conditions is conclusively against the manifest weight of the evidence
.
' Tr. 5/3/06, 42/16-23 ; C13722
. This finding was added by oral motion at the May 3, 2006 meeting
.
110
D. Criterion iii :
The proposed 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.
As pointed out in the introduction to this section of the brief, there were no witnesses
presented by the opponents to rebut the expert testimony offered by Gary DeClark, a licensed
real estate appraiser and Chris Lannert, a landscape architect and land use planner of vast
experience
. Even the findings made by the County Board on this Criterion offer no clue as to
why there was a purported denial, other than the County's blind, unsupported assumption that
proximity of any kind alone equates to impact
. A look at the handful of findings made by the
County Board is illustrative
.
1 .
Surrounding land uses are a mix of open space, agriculture, industrial and
residential .
Response :
Agreed.
2.
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 .
Response : Unfortunately, the County did not quantify this statement
. The evidence is
that the site is virtually invisible to surrounding land uses now, and that it will be virtually
invisible to surrounding land uses after expansion as well .
3 .
A significant portion of the residential property is in relative close proximity to
the proposed facility .
Response :
This was true before the proposed expansion
. PDC is only required to
minimize
incompatibility .
Proximity does not equate to incompatibility .
This finding
completely ignores PDC's agreement to the proposed condition requiring berms on the eastern
side of the property to provide additional sound and visual screening
.
4 .
A 45 foot increase in vertical height of this landfill will have a noticeable and
demonstrable effect on surrounding residential properties
.
Response :
There is no such evidence in the record
. The evidence is that the site will
still be virtually invisible
from most residential areas
. Additionally, the visibility of a portion of
a vegetated slope does not equate to incompatibility
. Lastly, the absence of vertical expansion
over unit Cl means that the overall height increase of the facility occurs in the areas furthest
111
removed from residential properties . The County Staff correctly concluded that, "If C-I is not
vertically expanded, then the impact of the expansion should largely be mitigated ." (Supp . Staff
Report, 26 ; C139581) .
5.
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 .
Response : This statement does not necessarily equate to incompatibility, given the
proposed end use plan of passive open space
. Nonetheless, the visible impact is admittedly
minimal and further mitigated by not expanding over unit Cl and PDC's agreement to accept
berming as a condition of approval .
6 .
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
.
Response :
This finding suggests that the facility is not particularly visible and has
minimal, if not zero impact on the surrounding areas . An eight (8) acre expansion, given the
existence of the substantial buffers around the facility, is negligible in terms of increasing any
impact. In fact, it was apparent from the testimony at the public hearing that the neighbors of the
facility are not bothered by the proposed expansion : "It should be noted that few owners or
occupants of the residences within close proximity to the east boundary of the proposed facility
commented during the public comment portion of the public hearing . Most of the commentary
and questions regarding compatibility was from individuals living a mile or more away from the
facility ." (Staff Report, pg
. 44; C12138).
7.
A 45 foot increase in vertical height of this landfill will have a noticeable visual
impact on surrounding residential properties
.
Response :
See finding 4, supra . Making essentially the same finding a second time
does not change the fact that there is no evidence in the Record to support the finding
.
The foregoing review of the County Board's speculations about impact, phrased in the
guise of findings of fact, conclusively demonstrates that there is no evidence which rebuts the
conclusions of PDC's witnesses, Gary DeClark and Chris Lannert, the only two experts to offer
any testimony on this Criterion
. The decision of the County Board on Criterion iii is clearly
against the manifest weight of the evidence .
112
E. Criterion v : The imposition of a $5 .00 per ton surcharge as a
condition of approval of siting Criterion v is against the manifest
weight of the evidence .
As and for its argument regarding County's improper imposition of a $5 .00 per ton
surcharge as a condition of approval of siting Criterion v, PDC adopts and incorporates the
arguments made in PDC's Motion for Partial Summary Judgment (Criterion v) and
Memorandum of Law in Support thereof, filed on September 8, 2006, and in PDC's Reply in
Support of Motion for Partial Summary Judgment (Criterion v), filed on October 16, 2006 .
PRAYER FOR RELIEF
WHEREFORE, Petitioner, Peoria Disposal Company, prays that this Board approve the
Application, or award the alternative relief described herein, and award Petitioner, Peoria
Disposal Company, such other and further relief as is deemed appropriate under the
circumstances .
Respectfully submitted,
PEORIA DISPOSAL COMPANY
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 - Telephone
(815) 431-1501 -
Facsimile
907-0020.4
113
By: I ~--
One its attorn s
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
AFFIDAVIT OF SERVICE
The undersigned, being first duly sworn upon oath, states that copies of the Brief of
Petitioner, Peoria Disposal Company, will be served upon the following persons by enclosing
same in separate envelopes, addressed as follows, and sending same via Federal Express,
overnight delivery, from Peoria, Illinois, on the 15th day of February, 2007, before 5
:00 p.m
.,
with all fees thereon fully prepaid and addressed as follows
:
Mr. William Atkins
Assistant State's Attorney
Peoria County
324 Main Street, Room #I 11
Peoria, IL 61602
Mr
. David A . Brown
Black, Black & Brown
Attorneys at Law
101 South Main Street
P . O
. Box 381
Morton, IL 61550
(309) 266-9680
- Telephone
(309) 266-8301 - Facsimile
dbrown(i~ blackblackbrown
.com
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 -Telephone
(815) 431-1501 - Facsimile
OFFICIAL
SEAL
NOTARY
JESSICA
PUBLIC
.
M
STATE
ROCKEYOF
ILLINOIS
MY COMMISSION EXPIRES
: 0613-07
Ms . Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P. 0 . Box 19274
Springfield, IL 62794-9274
(217) 524-8509 - Telephone
webbc@ipcb .state.il.us
Subscribed and sworn to before me, a Notary Public, in the County and State as
aforesaid, this 14th day of February, 2007
.
Notary Public
Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, AC
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(309) 637-6000-Telephone
(309) 637-8514 -Facsimile
AFFIDAVIT OF FILING
The undersigned, being first duly sworn upon oath, states that
ten (10) copies of the Brief
of Petitioner, Peoria Disposal Company, will be filed with the Illinois Pollution Control Board
pvia .m.
Federal Express, overnight delivery, sent on the 15th day of February, 2007, sent before 5
:00
OFFKMISEAI
JESSICA M ROCKEY
NOTARY PUSUC
• STATE OF
IWNOIS
MY COMMISSION
EXPIRES
: 0613-07
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 - Telephone
(815) 431-1501 -
Facsimile
Subscribed and sworn to before me, a Notary Public, in the Peoria County, Illinois, this
14th day of February, 2007 .
Notary Public
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
A : Excerpts : Brief of the Illinois Pollution Control Board prepared by the Attorney General in
Case Nos . 101619 and 101652,
Town & Country Utilities, Inc ., and Kankakee Regional Landfill,
LLC, Petitioners/Cross-Respondents-Appellees, v . Illinois Pollution Control Board,
Respondent/Cross-Respondent-Appellant, and County of Kankakee and Edward D
. Smith,
State's Attorney of Kankakee County, Respondents/Cross-Petitioners-Appellants, pending
before the Illinois Supreme Court.
George Mueller
GEORGE MUELLER, P.C.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500-Telephone
(815) 431-1501 -
Facsimile
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
TOWN & COUNTRY UTILITIES, INC
. and
KANKAKEE REGIONAL LANDFILL, INC .,
BRETT E. LEGNER
Assistant Attorney General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-2146
Nos. 101619 & 101652 (consolidated)
IN THE
SUPREME COURT OF ILLINOIS
Petitioners/Cross-Respondents -
Appellees,
V .
ILLINOIS POLLUTION CONTROL BOARD,
Respondent/Cross-Respondent-
Appellant,
and
COUNTY OF KANKAKEE and EDWARD D .
SMITH, STATE'S ATTORNEY OF
KANKAKEE COUNTY,
Respondents/Cross-Petitioners-
Appellants .
ORAL ARGUMENT REQUESTED
Appeal from the Appellate Court of
Illinois, Third Judicial District,
No. 3-03-0025
.
There heard on direct
administrative review of a decision
of the Illinois Pollution Control
Board, Nos . 03-31, 03-33, 03-35.
BRIEF OF ILLINOIS POLLUTION CONTROL BOARD
LISA MADIGAN
Attorney General
State of Illinois
GARY FEINERMAN
Solicitor General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3312
Attorneys for Illinois Pollution Control
Board.
II. The plain language of the Act requires the court to review the
Board's final administrative decision, not the interim decision
of the local siting authority .
The appellate court erroneously held that, on judicial review, it was to review
the City's decision, not the Board's decision, under the manifest weight of the
evidence standard . Order at 11 (All) . That holding is contrary to both the plain
statutory language of the Act requiring that the Board's decision be reviewed under
the manifest weight of the evidence standard and the rationale requiring the
Board's participation in the landfill siting process . Indeed, as the foregoing
Statement of Facts demonstrates, there are a number of very technical issues raised
by Town & Country's application that require the analysis of the technically-
qualified Board, and the court on review must accord deference to the Board's
technical expertise .
It is a fundamental aspect of statutory construction that the court will give
effect to the plain, unambiguous language of a statute .
In re Christopher K, 217 Ill .
2d 348, 364, 841 N .E.2d 945 (2005)
. By its plain language, the Act establishes that,
on judicial review, the appellate court reviews the final decision of the Board to
determine whether that decision was against the manifest weight of the evidence . .
415 ILCS 5/41(a) (2004) (A104) ("Any party . . .
may obtain judicial reviewU by
filing a petition for review within 35 days from the date that a copy of the order or
other final action sought to be reviewed was served upon the party affected by the
order or other final Board action complained of . . . .") ; 415 ILCS 5/41(b) (2004)
(A104) ("Any final order of the Board under this Act shall be based solely on the
-24-
evidence in the record of the particular proceeding involved, and any such final
order for permit appeals, enforcement actions and variance proceedings, shall be
invalid if it is against the manifest weight of the evidence . . . ."). Under the clear
statutory scheme, the court does not review the decision of the local siting
authority .
Title X of the Act governs the issuance of permits . 415 ILCS 5/39 - 5/40.2
(2004) . Among other things, the permitting process encompasses the issuance of
permits for the development and construction of new pollution control facilities,
such as the one proposed by Town & Country in the instant case . 415 ILCS 5/39(c)
(2004). Pursuant to the Act, no permit for the development or construction of a new
pollution control facility may issue unless the applicant has received siting approval
from the governing body of the county or municipality where the facility will be
located. Id . ;
35
ILL . ADMIN . CODE § 107
.106.
Section 39 .2 sets forth the procedures and criteria for siting approval by the
local siting authority
. 415 ILCS 5/39
.2 (2004) (A95-A96) . That section requires the
local siting authority to hold a public hearing and issue a written decision . 415
ILCS 5/39.2(d), (e) (2004) (A97-A98) . If all of the criteria are satisfied, the authority
may grant the siting application . 415 ILCS 5/39 .2(a) (2004) (A95-A96) .
The local siting authority's decision may be reviewed by the Board upon
request by the siting applicant or third parties meeting statutory requirements
.
415 ILCS 5/40.1 (2004) (A102-A103)
. In undertaking this review, the Board is to
make its decision "based exclusively on the record" before the local siting authority .
-25-
415 ILCS 5/40 .1(a), (b) (2004) (A102-A103)
. The Board is not to reverse the local
siting authority's decision unless that decision is against the manifest weight of the
evidence. File v
.
D & L Landfill, Inc
., 219 Ill . App . 3d 897, 901,579 N .E .2d 1228
(5th Dist . 1991) .
The Board's decision may be judicially reviewed . 415 ILCS 5/41 (2004)
(A104) . As noted above, the Act specifies that the judicial review is of the Board's
decision, not the decision of the local siting authority : it provides that any party
adversely affected "by a final order or determination of the Board" may obtain,
directly in the appellate court, review of the "order or other final action . . . ." 415
ILCS 5/41(a) (2004) (A104) (emphasis supplied) . The Board's administrative
regulations summarize the process : "Pursuant to section 40 .1 of the Act, a decision
of a unit of local government to site or deny siting of a new pollution control facility
is reviewable by the Board . The decision of the Board is appealable to the Illinois
appellate court ." 35 ILL . ADMIN . CODE § 107 .106.
The Act also sets forth the standard of review to be employed in reviewing
the Board's decision
: "Any final order of the Board under this Act shall be based
solely on the evidence in the record of the particular proceeding involved, and any
such final order for permit appeals, enforcement actions and variance proceedings,
shall be invalid if it is against the manifest weight of the evidence ." 415 ILCS
5/41(b) (2004) (A104) (emphasis supplied) . As Justice Barry acknowledged in his
dissent, Order at 12-13 (A12-A13), the plain and unambiguous statutory scheme
limits the scope of the court's review to the Board's final decision
-
not the decision
-26-
of the local siting authority - and requires the Board's decision to be upheld unless
it was against the manifest weight of the evidence . 415 ILCS 5/40 .1, 41 (2004)
(A102-A105) .
This Court has explained that judicial review under section 41 of the Act
requires the appellate court to determine whether the Board's decision is against
the manifest weight of the evidence . Environmental Protection Agency, 115 Ill. 2d
at 70 ("The appellate court properly recognized that its duty under section 41(b) of
the Act was to evaluate all the evidence in the record, and to determine whether the
Board's findings that the evidence did not support the denial of the permits was
against the manifest weight of the evidence .") (internal citation omitted) . And,
appellate court decisions have recognized the nature of judicial review of a siting
decision . For instance, one court explained the system of review of local siting
decisions as follows: "The standard of review to be exercised by both the Pollution
Control Board and this court is whether, respectively, the decisions of the county
board and Pollution Control Board are contrary to the manifest weight of the
evidence ." File, 219 Ill . App . 3d at 901 . Thus, the court on judicial review "must
determine whether the decision of the Pollution Control Board . . . is itself against
the manifest weight of the evidence ." Id. (emphasis supplied) ; see also Turlek V .
Pollution Control Bd., 274 Ill. App . 3d 244, 249, 653 N .E.2d 1288 (1st Dist. 1995)
(holding that
"[o]n
review, we are to determine whether the Board's decision is
against the manifest weight of the evidence") .
This statutorily-mandated standard of review reflects the General Assembly's
-27-
understanding that the Board brings its expertise to bear when reviewing the local
siting authority's decision and, as a result, the Board's decision is entitled to
deference
. Created by the Act, the Board is comprised of 5 "technically qualified"
members . 415 ILCS 5/5(a) (2004)
. The Board is empowered by the General
Assembly to enforce the provisions of the Act and to "determine, define and
implement the environmental control standards applicable in the State of Illinois
. . . ."
415 ILCS 5/5(b), (d) (2004)
. As the appellate court has explained, the Board
"is a statutorily created agency designed to provide expertise in the consideration of
whether a proposed waste disposal site is appropriate in a particular situation
."
Waste Management of Illinois, Inc
. v
. Pollution Control Bd.,
175 Ill. App . 3d 1023,
1034, 530 N
.E.2d 682 (2nd Dist
. 1988)
. Thus, on administrative review, it is
necessary for the court "to have the benefit of the [Board's] expert consideration" of
the siting criteria
. Id. at 1035
. If the Board's decision were not given deference, the
importance of providing its expertise to the court would be completely undermined
.
Considering the Board's role in the context of the siting process as a whole, it
is evident that the Board's decision
- not the local siting authority's decision -
should be reviewed under the manifest weight of the evidence standard
. The initial
decision is made by the local siting authority, but that authority is a lay body and
there is no guarantee that it will have any expertise in the area
. Similarly, there is
no guarantee that the court on judicial review will have expertise in the technical
matters concerning the siting of a pollution control facility
. Therefore, the only
stage in the siting process where technical expertise is guaranteed is the Board's
-28-
review of the local siting authority's decision, and the General Assembly required
the Board's participation in the citing process for a reason . It is the Board's
decision, then, that should be given deference by the court on judicial review .
See
Granite City Div . of Nat'l Steel Co . v. Illinois Pollution Control Bd .,
155 111
. 2d 149,
166-67, 613 N.E .2d 719 (1993) (explaining that the court defers to Board
determinations on matters within its special expertise and judgment) .
Furthermore, administrative review under section 41(a) must conform with
the Administrative Review Law, 415 ILCS 5/41(a) (2004) (A104), and that statute
specifies that only "a final decision of any administrative agency" may be reviewed
under its framework, 735 ILCS 5/3-102 (2004), and that the findings and
conclusions on questions of fact by the agency issuing the final administrative
decision are deemed prima facie true and correct, 735 ILCS 5/3-110 (2004) . In this
case, the final agency decision was issued by the Board . Thus, the scope of the
instant action is circumscribed by the Administrative Review Law, which directs
the court to review not the intermediate decision or findings of the local siting
authority but only the Board's final decision and to deem its findings and
conclusions prima facie true and correct . See Merisant Co . v. Kankakee County Bd .
of Review, 352 Ill . App . 3d 622, 626, 815 N .E.2d 1179 (3rd Dist . 2004) (explaining
that where the Administrative Review Law is adopted, that statute applies to
govern review of a final agency decision) ; Oleszczuk v . Department of Employment
Sec., 336 Ill . App . 3d 46, 50, 782 N .E .2d 808 (1st Dist . 2002) (holding that review
-29-
under the Administrative Review Law is of the final agency decision, not an
intermediate administrative decision or the decision of the circuit court)
.
Based on the plain language of the Administrative Review Law, the court has
jurisdiction to review only the Board's decision - it does not have jurisdiction to
consider the City's decision . A court reviewing the decision of an administrative
agency is exercising special statutory jurisdiction, and where the Administrative
Review Law has been adopted, the court's jurisdiction is defined in its entirety by
the Administrative Review Law . ESG Watts, Inc
. v
. Pollution Control Bd
., 191111,
2d 26, 30, 727 N .E.2d 1022 (2000); see 735 ILCS 5/3-104 (2004) (elaborating on the
court's jurisdiction "to review final administrative decisions") . Here, the Act and
the Administrative Review Law specify that jurisdiction on administrative review
extends only to review of the Board's final decision, not review of the local
authority's decision. That is the jurisdictional limit on the court's power to review
this matter .
Given the clear statutory language, the appellate court's reliance below on
Concerned Adjoining Owners v. Pollution Control Bd., 288 111
. App. 3d 565, 680
N.E.2d 810 (5th Dist. 1997), for the proposition that "[oln review, the court is
limited to a determination of whether the siting authority's decision was contrary to
the manifest weight of the evidence," Order at 7-8 (A7-A8), is misplaced
. Indeed,
the Concerned Adjoining Owners court simply was wrong when it noted that the
focus of the administrative review was the local siting authority's decision
. This is
-30-
so for a number of reasons: (1) the Act states that judicial review is available of a
final Board decision, not the final decision of the local siting authority ; (2) the Act
incorporates the Administrative Review Law, and that statute specifies that only a
final decision of an administrative agency - here, the Board - may be judicially
reviewed; and (3) to hold otherwise would ignore the Board's expertise in reviewing
siting applications and would render meaningless the General Assembly's
requirement that the Board review the local siting decisions, see Cassens Transp .
Co. v . Industrial Comm'n, 218 Ill . 2d 519, 524, 844 N .E
.2d 414 (2006) (explaining
that statutes must not be construed so as to render provisions meaningless or
superfluous).
In reasoning that its review was of the local siting authority's decision and
not the decision of the Board, the appellate court wrote that "[i]f
an appellate court
were to review both the local body and the [Board] under a manifest weight of the
evidence standard, it might have to affirm two contradictory decision[s] ." Order at
8 n . 1 (A8) . But the court on administrative review does not review both
the Board's
decision and that of the local siting authority . Instead, under the Act and the
Administrative Review Law, it reviews only the Board's decision . 415 ILCS 5/41
(2004) (A104) ; 735 ILCS 5/3-110 (2004)
. Therefore, there is no possibility that the
court would be called upon to affirm two contradictory decisions.
The appellate court also wrote
: "The manifest weight of the evidence
standard of review is applicable to a tribunal with an adjudicatory function that is
called upon to weigh evidence
. It is not applicable to a tribunal which reviews the
-31-
decision of an adjudicatory body." Order at 8 n.1 (A8). While that may be true as a
general principle, the general principle is irrelevant in this case because the
General Assembly, through the Act, explicitly provided the standard of review to be
employed in this administrative review context . 415 ILCS 5/41(b) (2004) (A104)
.
While the local siting authority is given a significant role in the siting
process, see Waste Management of Illinois, Inc . u. Illinois Pollution Control Bd
., 160
Ill. App . 3d 434, 441, 513 N .E .2d 592 (2nd Dist . 1987), reviewing the decision of the
Board, as opposed to the local siting authority, on judicial review does not minimize
the importance of the local siting hearing
. Because the local siting authority's
findings of fact are taken as prima facie true and correct by the Board, those
findings likely will be affirmed by the Board and would then be before the court on
review. In other words, the deference the Board must give to the local authority's
decision ensures that the local decision will have a meaningful effect on the outcome
of the process .
Additionally, the local authority is responsible for compiling the record that
will be before the Board and then the court on judicial review . In that way, the
local siting authority plays an important role in the disposition of the matter
because it marshals the evidence that will be used to decide the matter . Therefore,
the role of the local siting authority is preserved in this process even though the
judicial review is of the Board's, and not the siting authority's, decision
.
And, in any event, the General Assembly clearly specified that judicial review
is of the Board's
decision, and that the Board's decision must be upheld unless it is
-32-
against the manifest weight of the evidence . 415 ILCS 5/41(a), (b) (2004) (A104) .
Thus, while the General Assembly gave the local authority an important role, it
also provided the Board with a key role in the process and that role cannot be
ignored on judicial review . But that is what the appellate court's decision did - it
effectively cut the Board out of the process, in contravention of the unambiguous
statutory language .
The statutory framework under the Act is similar to that created by the
Human Rights Act . There, the Human Rights Commission must adopt the findings
of fact of the Administrative Law Judge unless those findings are against the
manifest weight of the evidence . 775 ILCS 518A-102(E)(2) (2004) . However,
pursuant to section 8-111(A)(2) of the Human Rights Act, the Human Rights
Commission's findings are reviewed to determine if they were against the manifest
weight of the evidence . 775 ILCS 5/8-111(A)(2) (2004) . On judicial review, the
court does not "pass upon the propriety of the Commission's determination that the
findings of the ALJ were contrary to the manifest weight of the evidence," and
instead only analyzes the Commission's findings under the manifest weight
standard
. Pinnacle Ltd. Partnership v . Illinois Human Rights Comm'n, 354 Ill.
App. 3d 819, 827-28, 820 N .E.2d 1206 (4th Dist . 2004) . Similarly, under the Act,
the Board reviews the local siting authority's decision to determine if it was against
the manifest weight of the evidence, but the court on judicial review examines only
the final administrative decision of the Board, not the siting authority's decision
that was reviewed by the Board .
-33-
Another similar situation was discussed by this Court in Comprehensive
Community Solutions, Inc
. v. Rockford Sch . Dist. No. 205, 216 111 . 2d 455, 837
N.E.2d 1 (2005). There, this Court reviewed a decision of the Illinois State Board of
Education that had affirmed the decision of a local school board . 216 Ill. 2d at 473,
477-78 . Likewise in this case, this Court should review the decision of the Board
that reversed the City's decision - in both cases, review of is of the final agency
decision, not the initial local decision .
Thus, the appellate court misapplied the law holding that it was to review
the decision of the local siting authority and not the decision of the Board . The
plain language of the Act and the Administrative Review Law establish that
judicial review is of the Board's decision, and that the decision is not to be reversed
unless it is against the manifest weight of the evidence . The rationale behind that
scheme is that the Board brings its expertise to the process with its review of the
local decision, and the Board's expertise is to be given deference on judicial review .
III. The Board's determination that Town & Country did not satisfy
criterion ii was not against the manifest weight of the evidence .
The Board's decision on criterion ii of section 39 .2(a) of the Act is reviewed
under the manifest weight of the evidence standard
. 415 ILCS 5/41(b) (2004)
(A104) . The manifest weight of the evidence standard is deferential
. The Board's
decision is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident . Abrahamson v. Illinois Dept of Professional
Regulation, 153 Ill. 2d 76, 88, 606 N .E .2d 1111 (1992)
. If the record contains
-34-
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 -Telephone
(815) 431-1501 - Facsimile
EXHIBITS
Exhibit 1: County invoice no. CoAdm06282006, dated June 28, 2006, with supporting
documents
Exhibit 2 : County invoice no
. CoAdm08012006, dated August 1, 2006, with supporting
documents
Exhibit 3 : Accounting of PDC's expert costs from the hearings
Brian J
. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P
.C.
Attorneys at Law
416 Main Street, Suite #1400
Peoria, At 61602-1153
(309) 637-6000- Telephone
(309) 637-8514
-
Facsimile
County of Peoria
County Administration Office
324 Main Street, Room 502
Peoria IL 61602
Bill To:
Brian Meginnes
Elias, Meginnes, Riffle & Seghetti
416 Main St, Suite 1400
Peoria IL 61602
For
:
Peoria Disposal Company
Make all checks payable to County of Peoria
If you have any questions concerning this invoice, contact aren Raithel at 672-6932
.
THANK YOU FOR YOUR BUSINESS!
INVOICE
DATA -`
June 28,
CoAdm06282006
DESCRIPTION
AMOUNT
Related expenses to the PDC Landfill Siting Application Review - filed 11/14/05
242,092 .66
Details of Expenses and Revenue are on a separate sheet .
N~`D JUL 13 20Do
h~
/n
TOTAL $
242,092
.66
EXPENSES
Peoria Disposal Company (PDC) Landfill Siting Application Review
Filed November 14, 2005
Outside Contract
'Patrick
and
Engineering
Publication
(engineering
Charges
services)
(11114105- -6128106)
L
Black, Black, and Brown (Legal services)
Auditor's Office
-_postage
Patrick Engineering (engineering services)
[Patrick Engine ering (engineerin g services) - January
Black, Black, and Brown (Legal servi ces) - January
Black, Black, and Brown (Legal services) -
February
Peoria Journal Star Notice of public hearing
-
Peoria Journal Star Legal Notice of public hearing
-
Rapid Print -
copies (leachate collection
data)
Copies/Copier
I Meal for staff - 2/21/06
[too Society (rental and meals)
,Alliance Reporting Service (transcripts)
DHL Express - deliver evidence to cmte members
Rapid Print - copies (evidence for public hearing)
1 .800 .Conference (Conference call on 2/20/06)
Patrick Engineering (engineering services) - Feb-March
Black, Black, and Brown (Legal services)
- March
Itoo Society (rental and meals)
-
I Meal for staff - 3/17/06
I
DHL Express - deliver material s to Patrick Engineering
Postage for postcards - notice of reconvened hearing
PatrickKinko's
-Engineering
copies
(Staff-Report)-(engineering
services)-
- April
Black, Black, and Brown (Legal services) - April
Alliance
[too Society
Reporting(rental -
and
Transcriptsmeals)
-
Patric k Engineering (engineering services) -May
Prospect TV and Sound
Binders and Tabs from Office Max
1
.800
.Conference
-
Total Outside Contract and Publication Charges
Prepared by Peoria County 6/28/2006
I
$5,508 .001-A
$3 ,250 .00
$90 .95
$17,889 .94
$45,766 .88
$1,884 .00
$21,482 .00
$113 .8
$365 .73
$535 .601
$47 .031
$3_1.56
$9,215 .171
$16,026 .20]
$211 .501,
$7,523 .751
$274 .88
$114,923 .86""
$8,298 .00
$1,403 ..00
$57.07
$50.181
$23 .521
$1,898
.56
1
{
$10,728 .931
$15,798 .001
$598 .001
$2,949 .451
$5,847 .00k
$5,425 .001
$130 .581
$1,097 .97,
$299,446 .19
nM
y
Page 1
Peoria Disposal Company (PDC) Landfill Siting Application Review
Prepared by Peoria County 6/28/2006
Page 2
Filed November 14, 2005
EXPENSES
Peoria County Staff Charges (2005 only)
County Administration
$567 .2_01
State's Attorney's Office
$148 .38
County Clerk's Office
$130 .29
Recycling & Resource Conservation
$98 .60
Total Peoria County Staff Charges for 2005
$944 .47
TOTAL SITING CHARGES (To date)
$300,390.66
REVENUE
Receipts
iFiling
Overpayment
Fee from
of March
PDC to
2006
cover
-Black,
related
Black,
expenses
and-Brown(11/9/2005)-invoice-
$50,000$8,298.00].0011
TOTAL REVENUE
$58,298 .00
AMOUNT PAYABLE TO PEORIA COUNTY
Total Siting Charges Less Revenue
$242,092 .66
June 28, 2006
Mr. Brian Meginnes
Elias, Meginnes, Riffle & Seghetti
416 Main Street Suite 1400
Peoria IL 61602
Dear Mr
. Meginnes:
Please find enclosed an invoice for the first installment for payment to Peoria County for
reimbursement for expenses relating to the review of Peoria Disposal Company's pollution
control facility siting application, filed in 2005 . The total amount includes payments to
contractors hired for legal and engineering services, charges to comply with Peoria County Code
Section 7 .5-31-49, venue rental, and staff review reimbursement
. Please note that staff review
hours are only for 2005 . A report of all expenses and revenue is included in addition to copies of
the invoices in the order they appear in the report .
The next installment will include Peoria County's staff review reimbursement for 2006 and any
additional invoices received relating to the siting review
. The third installment will address the
expenses directly relating to certifying the record for the Illinois Pollution Control Board
.
Should you have any questions about any of the documents contained in this packet, please call
me at 672-6932 .
Sincerely,
PEORIA COUNTY
Recycling
&
Resource Conservation
Peoria County Courthouse
324 Main Street, Room 502
Peoria, Illinois 61602
Karen Raithel
Enclosures
: invoice, report, copies of invoices
Karen Raithel
Mary Akors
Recycling Director
Recycling Inspector
I~'nx il . 309/G72-6054
309/672-69323091495
.5091
wn w-pC01
i acou11ty .or g
krmthol
,
~peonacounty .0rg
m akers@peoriacounty .org
Pruned on ,veyrled paper
County of Peoria
County Administration Office
324 Main Street, Room 502
Peoria IL 61602
Bill To :
Brian Meginnes
Elias, Meginnes, Riffle & Seghetti
416 Main St, Suite 1400
Peoria IL 61602
For:
Peoria Disposal Company
Make all checks payable to County of Peoria
If you have any questions concerning this invoice, contact Karen Raithel at 672-6932
.
THANK YOU FOR YOUR BUSINESSI
INVOICE
DATE :
August 1, 2006
INVOICE #
CoAdm08012006
DESCRIPTION
AMOUNT
Previous Balance - from Invoice CoAdm06282006 - received payment 7/31/06
-
Related expenses to the PDC Landfill Siting Application Review-fled 11/14/05
Peoria County Staff charges
41,534 .03
TOTAL $
41,534 .03
August 1, 2006
Mr. Brian Meginnes
Elias, Meginnes, Riffle & Seghetti
416 Main Street Suite 1400
Peoria IL 61602
Dear Mr. Meginnes :
Please find enclosed an invoice for the second installment for payment to Peoria County for
reimbursement for expenses relating to the review of Peoria Disposal Company's pollution
control facility siting application, filed in 2005 . This invoice is for Peoria County staff review
reimbursement. Please note that staff review hours are only for 2006 ; 2005 hours were included
in the invoice dated June 28, 2006 . The monthly expense report submitted to the Health &
Environmental Issues Committee is included.
The amount for this invoice totals $41,534 .03 . We received payment on July 31, 2006 in the
amount of $242,092.66. The third installment will address the expenses directly relating to
certifying the record for the Illinois Pollution Control Board .
Should you have any questions about any of the documents contained in this packet, please call
me at 672-6932 .
Sincerely,
PEORIA COUNTY
Recycling .& Resource Conservation
Peoria County Courthouse
324 Main Street, Room 502
Peoria, Illinois 61602
Karen Raithel
Enclosures: Expense Report originally dated 7/19/06 and revised 7/25/06
Karen Raithel
Mary Mere
Recycling Director
Recycling Inspector
309/6726932
F"# : 30916726054
309/495-5091
w ww.peotiacmmty.org
kraithal@peoriecounty .or g
m aker4ipeoriacounty .org
Printed on recycled poper
STEVE SONNEMAKER
COUNTY AUDITOR
To
Health & Environmental Issues Committee
From
Steve Sonnemaker, County Auditor
Re
Landfill Siting Application Expense Reimbursement
(per section 7 .5-48 Peoria County Code)
Date
July 19, 2006
OFFICE OF THE COUNTY AUDITOR
Revised 7125/06
The following invoices have been submitted to the county auditor for payment since the last
statement
. Peoria Disposal Company (PDC) submitted a filing fee in the amount of $50,000
to cover expenses associated with the landfill siting application review . The filing fee was
appropriated to the Recycling & Resource Conservation's budget to cover these expenses.
~~1;.Lr.~1 t r.4Z Date:
Committee Chal n
Room G-02 Peoria County Courthouse
Peoria, Illinois 61602
2006 Expenses
Submitted between 8/23108 and 7/19108
Peoria County Staff Charges
County Administration
$14,038.83
Recycling & Resource Conservation
$5,987.29
Stats's Attorney's Office
$1,798.58
IT Services
$2,518.37
County Clerk's Office
$1,011
.66
Health Department
$587.15
Supervisor of Assessments
$2,635.15
Planning and Zoning
$9,744.00
Sheriffs Office
$3,213.22
Total Expenses for this month (6123/08 - 7119/06)
$41,634.03
Total 2006 Expenses approved by Cmte prior to 6123106
$272,707 .30
Total 2006 Expenses Incurred
$314,241 .33
Total 2006 Expenses Incurred
$27,683.36
Total PDC siting application expenses Incurred
$341,924.69
Revenue - Filing Fee from PDC to cover related expenses
$50,000.00
Revenue
-
Additional Appropriation approved March 9, 2006
$150,000.00
Revenue -
Additional Appropriation approved May 11, 2006
$100,000.00
Overpayment of March 2006 Black, Black and Brown invoice
$8,298.00
Balance remaining as of 7119/08
($33,626.69)
Approval Signature
August 24, 2006
Mr. Brian Meginnes
Elias, Meginnes, Riffle & Seghetti
416 Main Street Suite 1400
Peoria IL 61602
Dear Mr. Meginnes :
Sincerely,
V) mi
Karen Raithel
Enclosures : Staff Reimbursement report
PEORIA COUNTY
Recycling & Resource Conservation
Peoria County Courthouse
324 Main Street, Room 502
Peoria, Illinois 61602
Pursuant to your request for documentation supporting staff charges stated in Invoice Number
CoAdm08012006, please find enclosed a report detailing Staff Reimbursement for time worked
on the PDC Siting Application review.
Should you have any questions about this report, please call me at 672-6932 .
Korea Raithel
Mary Akers
Recycling Director
Recycling Inspector
Fax # : 909/672-6064
309/672-6932
309/495 .6091
w ww.peoriacomty.org
kraithel®p eoriacounty .org
makere($peoriacounty .org
Printed on recycled paper
Expenses Related to Peoria Disposal
Company's (PDC) landfill siting application
review
Staff Reimbursement for time worked on project
For Year 2006
Sheriffs Office
Jonathan Quest
$322.32
With IMRF & FICA
$377.66
Harry Sweet
$500.50
$586 .44
Ronda Guyton
$575.97
$674.86
Calvin Walden
$806.08
$944.48
Scoff Schraeder
$222.32
$260.49
D Scott Husemann
$315.17
$369.28
Sheriff Total
$2,742 .36
$3,213 .22
Planning & Zoning Office
Matt Wahl
$8,316 .12
$9,744 .00
P & Z Total
$8,316
.12
$9,744 .00
Supervisor of Assessments
Dave Ryan
$2,249 .00
$2,635 .15
Supervisor Total
$2,249.00
$2,635.15
Health Department
Don Cavi
$501 .11
$587 .15
Health Total
$501.11
$587.15
County Clerk's Office
Megan Fulara
$857.61
$1,004 .86
Janice Whitelow
$5.80
$6.80
County Clark Total
$863.41
$1,011 .66
IT Services
Russell Haupert
$1,373 .00
$1,608 .74
Nancy Skillestad
$776.33
$909 .63
IT Total
$2,149
.33
$2,518 .37
State's Attorney's Office
Miranda Floyd
$1,535 .00
$1,798
.56
SAO Total
$1,535 .00
$1,798.56
Recycling & Resource Cons
Karen Raithel
$5,109 .92
$5,987.29
Recycling Total
$5,109.92
$5,987 .29
County Administration
Jennifer Zinkel
$1,001 .86
$1,173 .88
Scott Sorrel
$2,712 .32
$3,178 .03
Patrick Urich
$8,267 .24
$9,686.73
County Admin . Total
$11,981 .42
$14,038 .63
TOTAL Staff Reimbursement
$35,447
.67
$41,534.03
Andrews Environmental Engineering
4575
5/18/2006
Review Supplemental County Staff report and provide $
1,023 .00
comments to PDC
PDC Technical Services
6856
6/2/2006
Attend County Board meeting and project
$
373 .75
management
C
:IDocuments and Settingsyhn .EMRSILocal SewngslTemporary Internet FIIes10LK2Er61Slbng healing costsxls
TOTAL EXPENSES
: $
222,239 .26
SITING HEARING EXPENSES - Technical Consultants
PDC 1 Expansion Siting
Con ultant I Vendor
Invoice No Invoice Date ActIvItles
Ex rise
PDC Technical Services
6776
1/412006
Prepare PowerPoint slides for hearing and project
management.
3,253 .00
PDC Technical Services
6793
2/3/2006
Prepare PowerPoint slides and testimony for hearing.
Assist subconsultants with slides . Meet with
subconsultants and review draft PowerPoint slides,
exhibits and testimony. Conduct mock hearing.
Project management
.
$
16,513 .00
Andrews Environmental Engineering
3848
2/14/2006 Prepare draft PowerPoint slides and testimony for
hearing . Participate in mock hearing .
$
13,396 .00
PDC Technical Services
6807
Vendors:
3/2/2006 Final preparations for siting hearings, including
revisions to PowerPoint slides and mock hearing
.
Attend and provide testimony at siting hearing .
Project management
.
$
32,021 .00
]TOO Society
Building rental for mock hearing
$
500 .00
Corporate Express
Printer paper, color ink, and divider tabs for hard copy
of PowerPoint slides
$
258 .26
Prospect TV and Sound
AIV equipment rental for mock hearing
$
200 .00
Ramada Inn
Room rental for mock hearing
$
247 .68
Reimbursed expenses - LAK & MNC
Dry mount drawings for hearing, and binders for
PowerPoint slide hardcopies .
$
239 .98
Kinkos
Hardcopy of PowerPoint slides
$
2,684 .44
Shaw Environmental, Inc.
34592-R6-00565
3/17/2006 Peer review siting application and draft PowerPoint
slides, and participate in mock hearing
$
19,463.77
Andrews Environmental Engineering
4124
3/28/2006 Prepare final PowerPoint slides and testimony for
hearing . Attend and provide testimony at siting
hearing
.
$
34,096 .37
PDC Technical Services
6828
4/4/2006
Review Supplemental Groundwater Quality
Assessment Report, review and respond to public
comment, review County Staff report, and project
Subconsultants
management
$
11,299
.25
Crawford, Bunte, Brammeier
Traffic consultant hearing preparation and testimony
$
8,902.97
David E . Daniel
Expert witness hearing preparation and testimony
$
10,664 .51
Integra Realty Resources
Real estate consultant hearing preparation and
testimony
$
17,018 .72
Andrews Environmental Engineering
4352
4/19/2006 Review County Staff report, prepare and submit
Supplemental Groundwater Quality Assessment
Report
$
21,917 .26
PDC Technical Services
6843
Subconsultants
5/3/2006 Attend presentation by County Staff of their report,
review Supplemental County Staff Report, review
County's Proposed Findings of Fact and attend Siting
Committee Meeting .
$
5,296 .25
Lannert Group
Land use compatibility consultant hearing preparation
and testimony
$
12,662 .04
Golder Associates
Needs assessment and solid waste plan consistency
consultant hearing preparation and testimony
$
10,208 .01
