BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

)

)

Petitioner,

)

)

PCB 06-184

v.

)

) (Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See attached service list

PLEASE TAKE NOTICE THAT

on the 6th day of April, 2007, HASSELBERG, WILLIAMS,

GREBE, SNODGRASS & BIRDSALL, attorneys for Opposition Groups, PEORIA FAMILIES AGAINST

TOXIC WASTE and HEART OF ILLINOIS SIERRA CLUB, filed their Motion for Leave to File an Amicus

Brief in Excess of 20 Pages, via electronic filing as authorized by the Clerk of the Illinois Pollution Control

Board.

Respectfully submitted,

PEORIA FAMILIES AGAINST TOXIC WASTE

and

HEART OF ILLINOIS SIERRA CLUB

By:____________________________

One of Their Attorneys

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams, Suite 360

Peoria, IL 61602

Telephone: (309) 637-1400

Facsimile: (309) 637-1500

Electronic Filing, Received, Clerk's Office, April 6, 2007

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2

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

)

)

Petitioner,

)

)

PCB 06-184

v.

)

) (Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

)

Respondent.

)

MOTION FOR LEAVE TO FILE AN AMICUS BRIEF IN EXCESS OF 20 PAGES

NOW COMES

, PEORIA FAMILIES AGAINST TOXIC WASTE and HEART OF ILLINOIS SIERRA

CLUB (“Opposition Groups”), by and through their attorneys, HASSELBERG, WILLIAMS, GREBE,

SNODGRASS & BIRDSALL, having previously been given leave to file an amicus brief, and move for

leave to file said brief in excess of 20 pages, and in support thereof, state that:

1.

The Illinois Administrative Code limits amicus curiae briefs filed with the Pollution Control

Board (the “Board”) to 20 pages, unless the Board or hearing officer grants leave to exceed this limit. 35

Ill. Adm. Code 101.302(k) (2007).

2.

That the Response Brief of Respondent and any amicus curiae groups are due on Friday,

April 6, 2007.

3.

There are multiple issues before the Board, including whether the proceedings were

fundamentally fair and whether the Peoria County Board’s decision on four of the nine siting criteria was

against the manifest weight of the evidence.

4.

Petitioner, Peoria Disposal Company, filed an opening brief consisting of 113 pages, and

sought leave to exceed the page limitation; such motion was granted by order of the Board dated March

1, 2007.

6.

Respondent, Peoria County Board, has filed a Motion to Exceed Page Limitation seeking

75 pages.

7.

For the same reasons Petitioner and Respondent found it necessary to exceed the page

limitation, the Opposition Groups also find it necessary to exceed the page limit.

8.

The Opposition Groups anticipate that their Amicus Brief will be approximately 25 pages.

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3

WHEREFORE,

PEORIA FAMILIES AGAINST TOXIC WASTE and HEART OF ILLINOIS

SIERRA CLUB, pray for leave to exceed the 20 page limit for their Opening Brief, and for such other and

further relief as the Hearing Officer deems just and proper.

Respectfully submitted,

PEORIA FAMILIES AGAINST TOXIC WASTE

and

HEART OF ILLINOIS SIERRA CLUB

By:____________________________

One of Their Attorneys

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams, Suite 360

Peoria, IL 61602

Telephone: (309) 637-1400

Facsimile: (309) 637-1500

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the Motion for Leave to File an Amicus Brief in Excess of

20 pages was served upon the following persons by the methods indicated below on the 6th day of April,

2007, before 5:00 pm, with all fees thereon fully prepaid and addressed as follows:

Service List

Ms. Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, Illinois 62794-9274

Mr. David A. Brown

Black, Black & Brown

101 South Main Street

P.O. Box 381

Morton, Illinois 61550

Mr. Kevin Lyons

Peoria County State’s Attorney

324 Main Street, Room #111

Peoria, Illinois 61602

Mr. George Mueller

Law Offices of George Mueller, P.C.

628 Columbus Street, Suite 204

Ottawa, Illinois 61350

Mr. Brian J. Meginnes

Elias, Meginnes, Riffle & Seghetti, P.C.

416 Main Street, Suite 1400

Peoria, Illinois 61602-1611

By: ____________________________

One of their attorneys

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

)

)

Petitioner,

)

)

PCB 06-184

v.

)

) (Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

)

Respondent.

)

HEART OF ILLINOIS SIERRA CLUB

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams Street, Suite 360

Peoria, Illinois 61602-1320

Telephone: (309) 637-1400

Facsimile: (309) 637-1500

Electronic Filing, Received, Clerk's Office, April 6, 2007

---

1

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

)

)

Petitioner,

)

)

PCB 06-184

v.

)

) (Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

)

Respondent.

)

HEART OF ILLINOIS SIERRA CLUB

NOW COME Peoria Families Against Toxic Waste, and Heart of Illinois Sierra Club, by and

through their attorneys, David L. Wentworth II and Emily R. Vivian of Hasselberg, Williams, Grebe,

Snodgrass & Birdsall, and as and for their Amicus Brief, respectfully state and submit as follows:

INTRODUCTION

On November 9, 2005, Petitioner, Peoria Disposal Company ("PDC") filed an Application with the

Peoria County Board (the “County Board”) for site location approval pursuant to § 39.2 of the

Environmental Protection Act (the “Act”) for a vertical and horizontal expansion of Petitioner’s hazardous

waste facility located in Peoria, Illinois (the “Application”). Despite its long history of operations at this

location, this was the first time the PDC ever had to seek local siting authority under § 39.2 for the instant

pollution control facility. The PDC facility is the only one of its kind in Illinois, and is located adjacent to

the only regulated recharge area in Illinois. The existing PDC facility, not even counting the proposed

expansion, towers over residences a mere 200 feet away, is adjacent to the City of Peoria, and has

53,190 people living within 3 miles of its site. Peoria Families Against Toxic Waste (“PFATW”), and the

Heart of Illinois Sierra Club (“Sierra Club”), (collectively the "Opposition Groups") participated as objectors

at the local siting hearing. As participants in the siting attempt, PFATW and the Sierra Club believe that

their views in the form of an Amicus Brief would be beneficial to the Illinois Pollution Control Board (the

“Board”).

On May 3, 2006, well within the180-day statutory deadline, the County Board convened to make

a final determination of Petitioner’s Application. At that meeting, the County Board voted to deny the

Electronic Filing, Received, Clerk's Office, April 6, 2007

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2

Application based on criterion 1, 2 and 3. This final, written decision of the County Board constitutes the

entire transcript of the May 3, 2006 meeting.

The process employed by Peoria County in conducting the hearings was very transparent and

fundamentally fair, a true example of absolute access to information in modern times by virtue of

websites. PDC was afforded and actually utilized every opportunity to present its case and to address all

issues raised by the Opposition Groups and others. PDC's attempts before the County Board during the

hearing to marginalize the opposition as uninformed and irrational backfired. PDC's attempts before this

Board on appeal on fundamental fairness grounds similarly ring hollow where PDC cannot point to even

one specific way it was prejudiced by any ex parte communication. The decision of the County Board on

the substantive siting criteria for criteria 1, 2 and 3 was not against the manifest weight of the evidence.

I.

THE SITING PROCEEDINGS WERE FUNDAMENTALLY FAIR

The parties in a siting proceeding under §39.2 of the Act are not entitled to the same procedural

and substantive due process safeguards as they would receive in a trial. Although parties before a

county board may insist on procedures that comport with standards of fundamental fairness, they are not

entitled to a fair hearing by reason of the constitutional guarantees of due process. Tate v. Pollution

Control Bd., 188 Ill.App.3d 994, 1019, 544 N.E.2d 1176, 1193 (4

th

Dist. 1989).

Although the nine statutory criteria specified in the Act must be satisfied before local siting

approval can be granted, § 39.2 of the Act does not mean that these are the only factors which may be

considered. Southwest Energy Corp. v. Pollution Control Bd., 275 Ill.App.3d 84, 91, 655 N.E.2d 304, 309

(4

th

Dist. 1995); Fairview Area Citizens Taskforce v. Pollution Control Bd., 198 Ill.App.3d 541, 547, 555

N.E.2d 1178, 1182 (3d Dist. 1990). Thus, a local governing body may find that the applicant has satisfied

the statutory criteria, but may, nevertheless, properly deny the application based upon legislative-type

considerations. Southwest Energy Corporation, 275 Ill.App.3d at 91-92, 655 N.E.2d at 309-310.

A.

pursuant to 415 ILCS § 5/39.2(e).

Section 39.2(e) of the Act states, in part, “Decisions of the county board or governing body of the

municipality are to be in writing, specifying the reasons for the decision . . . If there is no final action by the

county board or governing body of the municipality within 180 days after the date on which it received the

---

3

request for site approval, the applicant may deem the request approved.” On March 27, 2006, during the

public comment period, the County Staff issued a report to assist in the County Board’s review and

understanding of the Application. In its report, the County Staff recommended approval of the

Application, subject to certain special conditions. After the public comment period had closed, the County

Staff reviewed the public comment file and highlighted the most relevant issues in its supplemental

response which was filed April 3, 2006. Again, the County Staff recommended approval of the

Application, subject to certain special conditions.

On April 6, 2006, a Committee of the County Board met to discuss proposed findings of fact

(“Preliminary Meeting”). On May 3, 2006, the County Board met to make its final decision on the

Application (“Final Meeting”). The findings of fact referenced at the Final Meeting were the recommended

Findings of Fact (“Findings of Fact”) created at the Preliminary Meeting and subsequently filed with the

Clerk’s office on April 27, 2006. Such Findings of Fact were in writing and sufficiently detailed. At the

Final Meeting, the Application was denied by a vote of 12 nos and 6 ayes. In addition, the County Board

orally amended the Findings of Fact recommended at the April 6, 2006 meeting and adopted the same as

amended. This procedure, as well as the decision, was clearly set forth in the transcript of the Final

Meeting (the “Transcript”).

PDC argues that the County Board did not create a writing that would constitute a formal decision

as required under the Act. However, the entire decision was stated verbatim in the Transcript of the Final

Meeting. In lieu of creating minutes of the Final Meeting, which would have merely been a summary of

the Transcript, the County Board included, in the record at the County Clerk’s office, the entire Transcript

of the Final Meeting, which was available for inspection by the public. In addition, the Transcript of the

Final Meeting was posted on Peoria County’s website for inspection and copying by the public. The

County Board could not have created a written decision that was more accurate and complete than the

Transcript from the Final meeting. By submitting the entire Transcript of the Final Meeting, there can be

no confusion or argument as to what took place at said meeting. Furthermore, it would be impossible for

one to argue that a summary would be more exact than a transcript.

Because May 3, 2006 was within 180 days of the request to approve the Application, and

because the Transcript adequately set forth the County Board’s decision and Findings of Fact, the

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4

Transcript of the Final Meeting sufficiently constitutes a final, written decision of the County Board

pursuant to 415 ILCS 5/39.2(e).

B.

of the County Staff.

As a point of law, the local siting authority is not bound by a consultant report or a staff

recommendation. See Hediger v. D & L Landfill, Inc., PCB 90-163 (December 20, 1990). This Board has

consistently held that a local siting authority is free to reject the findings of its consultants. Sierra Club v.

Will County Bd., PCB 99-136 (August 5, 1999), McLean County Disposal Co., Inc. v. County of McLean,

PCB 89-108 (November 15, 1989).

In this case, the County Staff issued a report recommending approval of the Application, with

numerous, substantive special conditions, including not being allowed to expand over an existing cell,

Cell C-1, due to design, construction and performance concerns. In addition, the County Staff submitted

a supplemental response recommending the approval of the Application, with special conditions. The

County Board was free to, and in fact did, reject the County Staff’s recommendation. Such rejection is

allowable. Nothing prevented the County Board from agreeing with the evidentiary rationale for the

imposition of a condition for approval, and then rejecting the condition (and approval) because the

condition did not sufficiently resolve the underlying problem.

C.

PDC had ample opportunity to present its case and address opposition arguments.

Prior to the commencement of the public hearing before the County Board, pursuant to

Ordinance, any opposition group had to submit all documentary evidence that they planned to use at the

hearing on the application. Peoria County Code ("Ordinance"), §7.5-46(b)(7). PDC even filed a motion to

establish the exact cutoff date. C3548-53.

Both PFATW and Sierra Club tendered literally thousands of pages of relevant materials

organized by topic and containing an index, with each item addressing one or more of the siting criteria

("Pre-Hearing Documents"). C4174-7256 in its entirety; PFATW Index found at C4190-93 and documents

from C4194-5758; Sierra Club Index found at C4174-75 and documents from C5759-7256. PFATW

topics for which documents were produced included in part, by way of examples: Photographs of the PDC

facility and surrounding properties, including photos of a spill at the Dog Obedience Training Club in

Pottstown located at the base of the PDC facility, C4194-4204; Statistics, reports and maps concerning

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5

the PDC landfill, Toxic Release Inventory (TRI) reports, and company information, C4205-97, C4324-91,

C5549-5654, and C5678-96; PDC business practices questioned, C4392-4640; Health, cancer and

illness concerns related to hazardous waste, C4843-4967; Property value information, C5010-22;

Groundwater information, including for the San Koty aquifer, C5362-5548 and C5717--21; HDPE liner and

landfill design information and reports, C5080-5220; and transportation information, C5252-5330. Not to

be outdone, Sierra Club topics included: Peoria climate data; area well data for the Pleasant Valley

Public Water District and Illinois American wells and regional water supply; documentation about San

Koty aquifer's location; drinking water quality reports; and ECHO report showing that 53,190 people

reside within a 3-mile radius of the PDC site, C6452.

In addition, prior to the commencement of the hearing, PFATW established a website under the

name www.notoxicwaste.org. The webpage contents, as of February 10, 2006, were printed out and

submitted as "PFATW 3" in the Pre-Hearing Documents. C4297-4304. The website referenced many of

the documents and information contained in the Pre-Hearing Documents, including the TRI reports and a

list of "the most toxic chemicals" PDC accepts. C4298. It also depicted photographs and maps of the

location of the facility referencing apartments adjacent to the facility and the proximity to the City of Peoria

and its neighborhoods. Two such photos showed the PDC facility rising above the apartments and a

playground, and contained a label "Toxic Waste Stacks" for pipes extending up from the top of the site.

C4298 and 4300.

PDC was complimented on the website as having a sound reputation and being

"respected locals." The website contained a "What can you do?" section with headings: "Write a letter for

the record," and "Write your county board member." C4303. As will be set forth below, PDC was very

familiar with the contents of the website and the Pre-Hearing Documents.

Not only did PDC know the subject topics complete with supporting documentation regarding

issues of concern of the opposition prior to the start of the hearing, PDC attempted to set (and by great

measure was successful in setting) the rules for the hearing itself. PDC attempted, by written motion filed

before the applicable committee of the County Board, to establish a procedure whereby PDC’s entire

case would be done as a “panel,” not each of their witnesses one at a time. C3542-47. Specifically, PDC

wanted “panel cross-examination,” which contemplated having any questions asked on cross-

examination of the PDC witnesses be answered by an individual witness as solely determined by PDC.

Electronic Filing, Received, Clerk's Office, April 6, 2007

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6

After the Opposition Groups objected to panel cross-examination, PDC still nonetheless was able to

present its case in chief uninterrupted, with cross-examination of all witnesses for the applicant held until

the final witness of the applicant had testified on direct. C3591-98. In short, PDC was able to present its

entire case in chief on direct examination, complete with PowerPoint presentations and narrative

testimony one after the other, C7975-8095, and a video presentation, C8099, in one package without

periodic cross-examination.

In PDC’s opening statement at the hearing, its counsel acknowledged knowing “that a number of

concerns have been brought up by opponents to the expansion,” and that as a result, PDC offered at the

commencement of the hearing to impose seven (7) voluntary conditions “to alleviate their concerns.” Tr.

2/21/06, p. 25-29; C7273-74; PDC Exhibit A-3, C8096-98

1

. For example, according to PDC, one such

"concern" was apparently raised pre-hearing by Tom Edwards, an opponent of the expansion not

affiliated with the instant Opposition Groups, regarding air pollution. Tr. 2/21/06, p. 20; C7272. In the

opening statement of the hearing, PDC offered, as a condition to siting approval, to implement an ambient

air-monitoring program to check for contaminants. Tr. 2/21/06, p. 26-27, C7274.

The first witness presented by PDC was Ron Edwards, Vice President of Development and

Operations of PDC. In his narrative testimony, he took several opportunities to refute the evidence

presented by the opposition and to answer questions raised thereby. He went trough the corporate and

business history of PDC to answer "Why is the site here?" and "Why is hazardous waste here?", two

questions asked by the opposition. Tr. 2/21/06, p. 35-39, C7275-76. He pointed out that the pipes

extending up to 18 feet above the ground of the landfill were not "toxic waste stacks" as so named on

documents that had "been entered into the record [by PFATW, C4298 and 4300], " but were leachate

sump collection risers. Tr. 2/21/06, p. 69-70; C7284-85. (George Armstrong, Vice President of PDC

Technical Services, also testified as to the "toxic waste stacks." Tr. 2/21/06, 209-10, C7319-20; p. 231,

C7325. )

1

Citations to the various transcripts of hearings filed in the record with the Illinois Pollution Control Board

will generally be in this format: “Tr. [date of hearing], [page number]; C-____.” For example, a citation to

page 187 of a transcript of a hearing on February 22, 2006, that appears on page C-546 of the entire

record would look like: “Tr. 2/22/06, 187; C-546.” Citations to transcripts of depositions filed at the

hearing before the Illinois Pollution Control Board will reference the name of the deponent and the page

number.

Electronic Filing, Received, Clerk's Office, April 6, 2007

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7

Mr. Edwards next addressed the opposition's use of the TRI reports in an attempt to discount

their relevance to the matter on the issues of exposure routes to get into the environment or health

concerns based solely on the TRI reports. Tr. 2/21/06, p. 93-98, C7290-92. These TRI reports were in

the PFATW website and in the Pre-Hearing Documents filed by both PFATW and Sierra Club to quantify

the significant volume of metals being disposed of on the City of Peoria's doorstep. See C4297-4304 and

C4205-97. The clearest example of PDC's anticipatory preemption of opposition arguments was when

Mr. Edwards testified about the Pottstown Obedience Training Club incident, Tr. 2/21/06, p. 85-89,

C7288-89, with the aid of a poster-board, topographic map exhibit not otherwise contained in the

Application. PDC Exhibit A-5, C8100. Thereafter, no member of the Pottstown Obedience Training Club

testified or gave public comment at the hearing.

Other PDC witnesses similarly referenced the opposition evidence in the record as part of their

direct examination presentations and testimony. For example, Chris Lannert of the Lannert Group

testified as to criterion 3, compatibility. Mr. Lannert referenced the pictures of the landfill from specific

views taken by the opponents [See C4298 and 4300] and appearing "on the web site. . . ," indicated "we

have been there also," but acknowledged that the opponent picture "shows a more current picture" of the

general area. Tr. 2/21/06, p. 171-72, C7310. Mr. Lannert took great pains to discredit the images taken

by the opponents as compared to his mechanically produced photo image positioned using aerial

photographs. He testified that the "photographs that are on line (sic) look to be taken with an area

photograph because it moves the landfill much closer to the point of view. And that is, while it's a realistic

picture in terms of it shows relationships, it's not a realistic picture as it relates to the proper portion of

how things sit within the context of their view." Id., see also Tr. 2/23/06, p. 226, C7514 (Lannert cross-

examination). As will be set forth below, Mr. Lannert's attempt to discredit the images on the PFATW

website backfired, for he is the one who proffered distorted and unrealistic testimony on compatibility.

See Section II, D, below.

In short, PDC fully knew all of the arguments and information to be raised by the Opposition

Groups and others before the hearing even began. PDC availed itself of the opportunity to use this

information, and did so by responding to the issues in the hearing and public comment period.

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8

D.

decision makers.

Petitioner argues that the proceedings were fundamentally unfair because of improper ex parte

contacts. (Petitioner’s Brief, p. 59-83). However, the mere existence of ex parte communications does

not make the proceeding per se fundamentally unfair. In fact, the Appellate Court of the Fourth District

has acknowledged that ex parte contacts between the public and its elected representatives are

inevitable. Southwest Energy Corp., 275 Ill.App.3d at 92, 655 N.E.2d at 310. If ex parte contacts occur,

then the Board must decide whether the party complaining of such contacts was prejudiced by those

contacts. Land and Lakes Co. v. Randoph County Bd. of Comm’rs, PCB 99-69 (September 21, 2000).

Thus, the analysis of alleged ex parte communications requires a initial two-step process: (1) determine

whether the contacts that occurred in the proceeding were ex parte contacts, and (2) if the answer to (1)

is yes, decide if the party complaining of such contacts was in fact prejudiced by those contacts. Land

and Lakes Co., PCB 99-69. Additional considerations may also be relevant, including the gravity of the

communication. E & E Hauling, Inc. v. Pollution Control Board, 116 Ill. App. 3d 586, 606, 451 N.E.2d 555

(2d Dist. 1983), affirmed in part, 107 Ill.2d 33, 481 N.E.2d 664 (1985).

Many of the alleged ex parte communications occurred during the public comment period.

Although PDC may not have been carbon copied to such communications, many of the communications

that were addressed to the individual board members were also submitted to the Clerk via the Peoria

County’s website. Because of the use of the Internet by the County, these comments were available on-

line, virtually instantaneously with their submission. Thus, such comments were in the record, and

Petitioner had every opportunity to respond to such comments. In fact, Petitioner did respond to many of

the comments by filing its own public comments. As a result, these subject communications lose their ex

parte status because they are not ex parte.

Petitioner assumes that none of the information transmitted to the County Board members

through ex parte communications was in the Record. However, as aforementioned, the on-line

submissions to the Peoria County website were most of the alleged ex parte communications and

consisted solely of referencing information that was already in the record. They were in balance to the

numerous letters in support of the PDC expansion submitted by vendors and customers of PDC, albeit via

a form letter created by Petitioner. See, Public Comment submitted by Getz Fire Equipment Company on

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9

1/12/06, C711, compared to Public Comment submitted by Schaub Mobile Line Boring Service, Inc. on

1/12/06, C720, evidencing the information each company was to fill-in on Petitioner’s form.

Although we acknowledge that contacts made by nonparties outside the public hearing, to a

board member, concerning a pollution control facility siting proceeding is an ex parte contact, most of the

alleged ex parte communications occurred during the public comment period, and thus, were not outside

the public hearing. See Land and Lakes Co., PCB 99-69.

Moreover, intense public opposition does not necessarily render a hearing fundamentally unfair.

“The various telephone calls, letters, and personal contacts were merely expressions of public sentiment

to county board members on the issue of Waste Management’s landfill application.” Waste Management

of Illinois, Inc. v. Pollution Control Bd., 175 Ill.App.3d 1023, 1043, 530 N.E.2d 682, 697 (2

nd

Dist.

1988)(“Existence of strong public opposition does not render a hearing fundamentally unfair where, as

here, the hearing committee provides a full and complete opportunity for the applicant to offer evidence

and support its application.") In this case, Petitioner had a full and fair opportunity to plead its case, and

did so even after the hearing had ended and the public comment period had ended by submitting a

Response to Committee of the Whole. See, Peoria Disposal Company’s “Response to Committee of the

Whole Vote.” C13461-13522.

Before filing its Brief before this Board, at no time did Petitioner allege bias by any members of

the County Board. However, in its Brief, for the first time, Petitioner alleges that the County Board

members who voted against its application were “biased” against PDC. Where an administrative agency

or local government acts in an adjudicatory capacity, bias or prejudice may be shown if a disinterested

observer might conclude that the adjudicatory body, or one of its members, had in some measure

adjudged the facts as well as the law of the case in advance of hearing the case

.

Concerned Adjoining

Owners v. Pollution Control Bd., 288 Ill. App. 3d 565, 573 (5

th

Dist. 1997); Waste Management, 175 Ill.

App. 3d at 1040. During the May 3, 2006 final vote hearing, PFATW and Sierra Club filed a motion

objecting to County Board member William Prather voting on the siting application. C13574-94. This

motion was essentially denied by the local siting authority after Mr. Prather gave a detailed explanation of

his relationship with a PDC affiliate company. Mr. Prather made representations that he had not

prejudged the Application but was basing his vote on the testimony and record. Tr. 5/03/06, C13710-48.

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10

PFATW and Sierra Club made the objection to Mr. Prather right after they obtained the information

forming the basis of the objection because a claim of disqualifying bias or partiality on the part of a

member of the judiciary or an administrative agency must be asserted promptly after knowledge of the

alleged disqualification, or it is deemed waived. E & E Hauling, Inc. v. Pollution Control Bd., 107 Ill. 2d 33,

38, 481 N.E.2d 664, 666 (1985). To allow a party to first seek a ruling in a matter and, upon obtaining an

unfavorable one, permit him to assert a claim of bias would be improper. E & E Hauling, 107 Ill.2d at 38-

39, 481 N.E.2d at 666. Petitioner has waived any right to raise allegations of bias for two reasons. First,

Petitioner had knowledge of the allegations and claims of bias it now asserts during the hearing on May 3,

2006, but failed to object. Second, Petitioner made a calculated decision not to object at that time.

PFATW and Sierra Club had just raised a similar claim, unsuccessfully, and Petitioner chose to avoid

such treatment. Thus, Petitioner has waived any rights it had to raise the issue of bias on appeal.

Even if members of the public participate in ex parte communications, a court will not reverse an

agency’s decision because of ex parte contacts with members of that agency absent a showing that

prejudice to the complaining party resulted from these contacts. Rochelle Waste Disposal v. City of

Rochelle, PCB 03-218 (April 15, 2004); Fairview Area Citizens Task Force, 198 Ill.App.3d at 548, 555

N.E.2d at 1183; Waste Management of Illinois, 160 Ill.App.3d 434, 513 N.E.2d 592; E & E Hauling v.

Pollution Control Bd., 116 Ill.App.3d 586, 607, 451 N.E.2d 555 (1985). In its Brief, Petitioner details a

plethora of alleged ex parte communications by opponents of the Application, and Petitioner requests that

the votes of 8 of the County Board members who voted against approval of the Application be stricken.

(Petitioner’s Brief, p. 71-72). In its argument, Petitioner describes statements made by various members

of the County Board, claiming that such members relied solely on information outside the Record in

making their decisions.

However, Petitioner fails to allege, let alone prove, that any of the ex parte contacts prejudicially

influenced the decision makers. Just the opposite conclusion is warranted. While PDC certainly knew of

the contents of the PFATW website, there is not evidence that any County Board member ever visited

and site or otherwise viewed content. The mere fact that a member of the governing body of the

municipality has publicly expressed an opinion on an issue related to a site review proceeding does not

preclude the member from taking part in the proceeding and voting on the issue. See 415 ILCS 5/39.2(d)

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11

(2007). But in fact, in this case, there is not even any evidence of any member of the County Board

publicly expressing an opinion regarding the proposed expansion. Thus, the County Board members

were even more conservative in partaking in communications than the Act allows, and did not prejudge

the case.

Petitioner filed a "Response to Committee of the Whole Vote" after said committee voted to deny

the Application. C13461-13522. The filing was highly improper because it was after the public comment

period had ended. In its Response to Committee of the Whole Vote, Petitioner unilaterally took it upon

itself to purportedly set the record straight. Thus, it is virtually impossible for Petitioner to claim that it

suffered any actual prejudice from any alleged improprieties in the hearing process because it got to

“correct” any misperceptions or issues before final action was taken. In fact, in the instant case, the

County Board members were forced to endure political pressure by Petitioner. See, Tr. 04/03/06, p. 119,

(“. . . this is what some people call the deal you can’t refuse, then.”). Nevertheless, the County Board

overcame the political pressure and denied the Application.

In addition, many of the alleged ex parte communications that were not originally part of the

record were subsequently placed in the public record. Such inclusion in the public record removed any

danger of prejudice, even when the tone of the contacts was adverse to the granting of the site

application. City of Rockford v. County of Winnebago, 186 Ill.App.3d 303, 313-314, 542 N.E.2d 423, 431

(2

nd

Dist. 1989).

Petitioner argues that the fact it lost the vote should be sufficient proof of the prejudice it suffered.

If this was true, then there would be no need to impose a specific requirement of demonstrating prejudice.

Rather, the finding of prejudice would be presumed. Furthermore, the mere fact that County Board

members voted against the Application does not necessarily infer that Petitioner was prejudiced. See E &

E Hauling, 116 Ill.App.3d at 599, 451 N.E.2d at 566.

In addition, Petitioner argues that the sheer volume of ex parte contacts creates a presumption of

prejudice. (Petitioner’s Brief, p. 70). However, even an extensive number of ex parte contacts is not

enough to infer prejudice. See Land and Lakes Co., PCB 99-69. In Land and Lakes, members of both

the County Board and Planning Commission Board were contacted concerning the siting application

outside the record of the proceedings. Each member received at least one phone call concerning the

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12

siting application, and most of the members received several phone calls, with one member testifying that

he had received about 30 messages on his home answering machine. Several of the members also

received information and letters in the mail regarding the landfill siting proceeding. In addition, many of

the members were approached in person regarding the landfill siting. In fact, one member testified that

he had been approached in person about 8-10 times. Even in light of the extensive ex parte contacts

involved in this case, the Board found the applicant was not prejudiced. Land and Lakes, PCB 99-69.

Petitioner is incorrect that the sheer volume of ex parte contacts creates a presumption of prejudice.

Petitioner’s argument that it suffered actual prejudice is undercut by its recognition that Thomas

Edwards was constantly participating in ex parte communications, but PDC does not seek any remedy

related to Mr. Edwards' actions in its Brief. As he admitted throughout his entire deposition, Mr. Edwards

was everywhere all the time on the issue of the siting application. It is not a stretch to say he participated

in more alleged ex parte contacts than all other opponents to the siting application, combined. For

example, Mr. Edwards admitted that he phoned at least one County Board member. He also hand-

delivered documents to the County Board members; he spoke at dozens of County Board and Peoria City

Council meetings, which were conducted for purposes other than discussing the siting application. In

addition, he mailed several documents to the County Board members. See Thomas Edwards, 10/24/06.

It is undisputable that Mr. Edwards participated in a plethora of ex parte contacts, and Petitioner

readily acknowledges the same. However, Petitioner fails to allege that Mr. Edwards’s ex parte contacts

resulted in any prejudice to the Petitioner. If Mr. Edwards ex parte contacts did not result in any prejudice

to Petitioner, then certainly none of the other opponents ex parte contacts resulted in any prejudice to

Petitioner. Furthermore, Mr. Edwards’ ex parte contacts were made so public that Petitioner knew

everything Mr. Edwards was doing. In good faith, Petitioner is unable to allege, let alone prove, actual

prejudice related to Mr. Edwards’ actions because Petitioner had perfect knowledge as to those actions

and responded accordingly. For example, at the opening of the hearing, Petitioner quoted a letter written

by Joyce Munee of the Illinois EPA to Tom Edwards, point blank declaring that PDC did not landfill “many

of the most toxic compounds known to man,” Tr. 2/21/06, p. 19; C-7271, and that there is “no evidence of

any health risk from the gas emission tests at the PDC facility,” Id., both directly contrary to statements

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13

Petitioner attributed to Mr. Edwards. By the same token, Petitioner had the same level of knowledge and

responded accordingly as to any perceived communications of any member of the Opposition Groups.

Having come up with no evidence of actual prejudice, Petitioner then attacks the messengers, the

members of the County Board. Petitioner condemns Mr. O’Neill by alleging that Mr. O’Neill admitted that

he did not consider any of the evidence submitted during the proceedings on the Application, or the

Application itself. Mr. O’Neill preliminarily voted in favor of the Application on April 6, 2006, but he voted

against the approval in the final vote on May 3, 2006. Mr. O’Neill testified that when asked by the Peoria

Journal Star if he was contacted by constituents, he answered “yes.” When asked if those contacts

changed his vote, he answered, “no.” PDC Application, Deposition of Thomas O’Neill, 09/27/06, p. 22-23.

At his deposition, Mr. O’Neill was asked, “So, as I understand it, Mr. O’Neill, the only information you had

to base your decision on in this case would have been a partial reading of one staff report and whatever

e-mails, letters, and phone calls you got; is that correct?” Mr. O’Neill answered, “First part’s correct. I

never really read many of the e-mails or the mail.” He was then asked, “Well, was there any other

information that you had which you considered in making your decision besides the one partial staff

report?” Mr. O’Neill answered, “No.” Thomas O’Neill, 09/27/06, p. 27-28. Thus, Mr. O’Neill did not

consider any information outside of the Record, and as such, Petitioner was not prejudiced by any of the

alleged ex parte communications involving Mr. O’Neill.

In addition, Petitioner alleges that Mr. Salzer did not understand his role in the proceedings.

However, when Mr. Salzer was asked if it was his belief that he took into account the content of phone

calls, letter and emails when considering his decision, Mr. Salzer stated, “No, I didn’t.” Phillip Salzer,

09/14/2006, p. 20. Rather, Mr. Salzer believed he should listen to the public, but not that he had to

consider their wishes in his vote. Therefore, Mr. Salzer’s vote did not prejudice Petitioner because he

only listened to the public; he did not take them into account when he made his decision.

Petitioner was not prejudiced by the alleged ex parte comments cited by Petitioner because the

communications relied on by Petitioner were taken out of context. When analyzed in the proper context,

such comments were not prejudicial. Furthermore, at the Final Meeting, each Board member was asked

to state for the Record whether he or she was able to decide the case impartially based solely on the

evidence presented to him or her. Tr. 05/03/06, C13710-48. Each Board member responded that he or

Electronic Filing, Received, Clerk's Office, April 6, 2007

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14

she would be fair and impartial and make a decision based solely on the evidence. Thus, Petitioner was

not prejudiced by any alleged ex parte contacts because the County Board members based their

decisions solely on the evidence.

II.

A.

Standard of Review

A decision by a local siting authority in a landfill siting appeal may not be overruled unless it is

against the manifest weight of the evidence. McLean County Disposal, Inc. v. County of McLean, 207

Ill.App.3d 477, 566 N.E.2d 26 (4

th

Dist. 1991). A decision is against the manifest weight of the evidence if

the opposite result is clearly evident, plain or indisputable from a review of the evidence. Fairview Area

Citizens Task Force, 198 Ill.App.3d at 550, 555 N.E.2d at 1184. A decision is contrary to the manifest

weight of the evidence only when, after reviewing the evidence in the light most favorable to the County

Board, the Board determines that no rational trier of fact could have agreed with the County Board’s

decision. Am. Fed’n of State, County & Mun. Employees v. Illinois Educ. Labor Relations Bd., 197

Ill.App.3d 521, 525, 554 N.E.2d 476 (4

th

Dist. 1990). The hearing body is to weigh the evidence, resolve

conflicts in testimony and assess the credibility of the witnesses. The reviewing court is not in a position

to reweigh the evidence, but can merely determine if the decision is against the manifest weight of the

evidence. Fairview Area Citizens Task Force, 198 Ill.App.3d at 550, 555 N.E.2d at 1184. Under a

manifest weight of the evidence review, the decision of the County Board should be affirmed, unless the

findings and conclusions of the County Board are found to be contrary to the manifest weight of the

evidence. Cent. Illinois Pub. Serv. Co. v. Dep’t of Revenue, 158 Ill.App.3d 763, 767, 511 N.E.2d 222 (4

th

Dist. 1987).

Petitioner argues that it presented unrebutted testimony and called several more witnesses than

did PFATW and Sierra Club. Although Petitioner called more witnesses than PFATW and Sierra Club,

PDC’s witnesses were extensively cross-examined by counsel and by multiple individual participants, and

served to raise questions of credibility and genuineness of facts. Petitioner’s contention that they “win”

because no one testified in opposition to some of the criteria fails to recognize that testimony adverse to

Petitioner’s position was obtained during extensive cross-examination. The purpose of cross-examination

is to discredit a witness before the fact-finder in any of several ways, by bringing out contradictions and

Electronic Filing, Received, Clerk's Office, April 6, 2007

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15

improbabilities in earlier testimony, by suggesting doubts to the witness, and by trapping the witness into

admissions that weaken the testimony. See Black’s Law Dictionary, 7

th

Edition. Thus, witnesses’

testimonies are many times rebutted by simple cross-examination. Moreover, even if the County Board

determined that the Petitioner’s expert testimony was uncontroverted, the County Board, nevertheless,

could have found such testimony deficient and denied the Application. CDT Landfill Corp. v. City of Joliet,

PCB 98-60 (March 5, 1998).

B.

Criterion #1

is Not Against the Manifest Weight of the Evidence.

Based on Sheryl Smith’s testimony, an expert called by PDC, the County Board was certainly

welcome to find Sheryl Smith biased, and thus, question her credibility and the adequacy of her report.

Ms. Smith admitted that in the 18 or 19 times she has participated in siting hearings, she only determined

two times that there was no need, and on those two occasions, she was retained by a group or

community who opposed the permitting. Tr. 2/23/06, p. 151-152; C-7495.

Petitioner receives waste from 27 Indiana generators (PDC Application, Table 1-2, pages 11 and

12 of 16 (as determined by hazardous listing codes)), even though hazardous waste facilities in Indiana

recently received expansion permits. PDC Application, Volume 1, page 1-22. The County Board could

have reasonably considered this fact as evidence that there is no need for an expansion at this facility.

Without the expansion, the lifespan of the current landfill is four years. If the landfill were to only

accept local waste, its lifespan would reach about 33 years, without the expansion. This fact alone could

have created doubt as to whether the expansion is necessary to accommodate the waste needs of the

area it is intended to serve. With the expansion, the landfill is expected to reach capacity in about 19

years. Thus, local business will lose roughly 14 years if the expansion is granted.

Furthermore, the receipt of local hazardous waste is declining. It appears that local businesses,

including Caterpillar Inc., are trying to keep the environment clean by reducing hazardous waste

production. Petitioner is responding to this by reaching out to new markets to increase the amount of

hazardous material that it imports into Peoria county. The fact that PDC is making effort to attract more

waste directly contradicts the requirement of Criterion 1.

Throughout Petitioner’s Brief, Petitioner responded to various conclusions made by the County

Board. In its conclusions, the County Board stated that Smith testified that there are a decreasing

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16

number of hazardous waste landfills in both the service area and the nation. Petitioner’s responds by

stating, “Common sense suggests that this would increase the need for the PDC expansion.” This is not

necessarily true - the County Board also concluded that the need for hazardous waste facilities is

declining. Thus, the fact that there is a decreasing number of such facilities may relate to the decrease in

demand for such facilities. While Petitioner’s response is one justification for the decrease in the number

of facilities, there are other, equally viable reasons for the decrease in the number of facilities.

In addition, Petitioner attempted to justify its use of a constant rate of hazardous waste generation

in the service area from 2001 until 2009 by explaining that such was “the most prudent assumption,”

absent evidence of whether there will be a further decline of hazardous waste generation. (Petitioner’s

Brief, p. 94). Given the suggested evidence that hazardous waste generation is declining, the more

conservative assumption would have been a gradual decrease in such waste generation. Rather than

being conservative, Petitioner chose to use an assumption that may very well have affected its credibility

with the County Board.

Petitioner and Sheryl Smith excluded Indiana from the intended service area, even though

Petitioner accepted significant quantities of hazardous waste, non-hazardous waste and specials wastes

from Indiana during the same 1999-2004 study period. Petitioner also accepts waste from Ohio, another

state with its own facility. Both Indiana and Ohio recently received expansion permits, and no testimony

was given that Indiana and Ohio facilities would be incapable of providing disposal services for Peoria

County generators. The County Board could have reasonably determined that PDC was intentionally

trying to manipulate such data by failing to include Indiana and Ohio from the intended service area.

Thus, it was reasonable for the County Board to find that there is no need to expand Petitioner’s facility.

In CDT Landfill Corp., PCB 98-60, the Board upheld the City’s decision that Criterion 1 had not

been satisfied. Although the Board acknowledged that CDT had presented expert testimony on Criterion

1, the Board also recognized that the City showed that the testimony was deficient. See, CDT Landfill

Corp. For example, the City identified a number of purported flaws in CDT’s testimony, including the fact

that the need report analyzed the disposal needs for the intended service area until the year 2020 despite

the fact that the proposed expansion was only intended to operate for period of 7-8 years. Furthermore,

the City asserted that CDT failed to properly consider existing and planned alternative available disposal

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17

capacity. The Board found enough merit in the City’s arguments that it could not reverse the City’s

decision.

In the present case, like the CDT Landfill case, the County Board found that Criterion 1 was not

met because of the deficiency of the need analysis. In its Application and at the hearing, Petitioner failed

to establish that there is a need to expand the PDC facility when other hazardous waste landfills exist in

the Midwest. Because of the foregoing inconsistencies and manipulations, the decision of the County

Board to reject Sheryl Smith’s conclusions is not against the manifest weight of the evidence. Thus, this

Board should not reverse the County Board’s decision that Criterion 1 was not satisfied.

C.

Criterion #2:

The County Board’s Finding that the Facility is Not so Designed,

Located and Proposed to be Operated that the Public Health, Safety and Welfare

will be Protected is Not Against the Manifest Weight of the Evidence.

Determination of Criterion 2 depends solely on the assessment of the credibility of testifying

experts. Fairview Area Citizens Taskforce, 198 Ill.App.3d at 553, 555 N.E.2d at 1185. During the

hearing, there was direct, conflicting evidence between the testimony of Charles Norris for PFATW and

the Sierra Club, and Dr. Larry Barrows for PDC. In weighing the evidence, the County Board chose to

accept Mr. Norris’ testimony over that of Dr. Barrows. Such conclusion is not against the manifest weight

of the evidence. In other cases, the testimony of Mr. Norris was found to be credible and determinative of

Criterion 2. See Rochelle Waste Disposal, PCB 03-218, Slip op. at 43. The County Board is the body

delegated the task of assessing witness credibility. It is not the function of the reviewing court to reweigh

evidence or reassess credibility. Fairview Area Citizens Taskforce, 198 Ill.App.3d at 553, 555 N.E.2d at

1185. Furthermore, Petitioner emphasizes that it had a total of five experts testify on this criterion and

that such testimony comprises more than 700 pages. Such emphasis is misplaced as it is the quality, not

the volume, of testimony that the County Board was to evaluate. Thus, the fact that Petitioner had more

resources available to present evidence than did voluntary, not-for-profit organizations should not have

impacted the County Board’s ultimate decision.

Petitioner cites Industrial Fuels for the proposition that mere compliance with minimum

governmental regulations, coupled with a good plan of operations, demonstrates compliance with

Criterion 2. The last sentence of the supporting text states, “Nothing indicates that Industrial’s controls

and procedures, safety features, training of personnel, or security systems are substandard or create a

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18

significant safety hazard.” (Petitioner’s Brief, p. 97). Although, in our case, Petitioner has been in

compliance with governmental regulations, there was a plethora of testimony that indicated safety

hazards would be created with such expansion over the aquifer. Thus, Industrial Fuels is not directly on

point with our case because in our case, there is evidence of substandard controls, procedures, and

safety features.

In addition, throughout the hearings, representatives of PDC as well as their retained industry

consultants testified that the liner system of the entire landfill was state of the art and met or exceeded

any standards that existed even today. However, the County Staff did not recommend any expansion

over Trench C-1 because of its minimum technology liner design which is not protective of the

groundwater. Peoria County Staff Report, 03/27/06, p. 2-3, C-12096-12097. Petitioner clearly

overreached in declaring that the entire landfill was designed in a manner that met or exceeded any

standards existing today. Such overreaching in this criterion could reasonably allow the County Board to

question Petitioner’s credibility when analyzing other data.

One of Petitioner’s experts, Mr. Kenneth Liss, testified that both chloride and suflate are common

constituents found in the leachate of the landfill. Tr. 2/24/06, p. 246; C-7632. He also testified that

chloride and sulfate are generally used as indicator parameters to determine if a waste disposal facility

has impacted groundwater. Tr. 2/24/06, p. 246; C-7632. Chloride and sulfate concentrations in

downgradient wells from C-1 indicate just that – that the groundwater quality in the sand aquifer has been

impacted. Charts SR-2.5 and 2.6. Because chloride and sulfate concentrations in downgradient wells

from Trench C-1 indicate that the landfill’s leachate has gotten down into the groundwater, the County

Board was reasonably concerned that chloride and sulfate parameters were not statistically compared

with background for any sort of compliance. Tr. 2/24/06, p. 248; C-7632.

In his direct testimony, Mr. Norris stated,

“There exists at this site a complex distribution of strongly differing soil types, soil

materials across the site and with depth. The depth of weathering of these materials

greatly varies from place to place across the site. Water drains readily and rapidly

through the site. Contaminants that are not inside containment structures move with that

water readily and rapidly down through the site.

Such contaminants directly enter the

aquifer system that is used ultimately by the public water supplies of the

community, and the groundwater impact assessment modeling that was done is

inadequate with respect to methodology and the results are inconsistent with site

observations

.”

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19

Tr. 2/24/06, p. 115; C-7599 (emphasis added). The County Board considered such testimony when it

made its final decision, and it was permissible for the County Board to consider this testimony more

credible than that of Petitioner’s experts.

In addition, Mr. Norris testified that the groundwater impact assessment modeling that was

conducted was flawed and that the results were inconsistent with site observations. Tr. 2/24/06, p. 153;

C-7608. Moreover, Mr. Norris testified, “The simple fact is that under the conditions that are in that

model, organic chlorinated contaminants cannot have reached the deep aquifer yet, and they are there . .

. The results are inconsistent with the observed contaminants that are at the site . . ..” Tr. 2/24/06, p. 154-

155; C-7609. Because the County Board is to assess each witness’ credibility, it was reasonable for the

County Board to determine that Criterion 2 was not satisfied because of inconsistencies and unreliability

of Petitioner’s evidence.

Petitioner criticizes Mr. Norris for submitting public comment. (Petitioner’s Brief, p. 98)(“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.”). However, the parties were

well informed during the hearing that Mr. Norris would be submitting public comment:

MR. WENTWORTH

: Yes, thank you, Mr. Brown. As was noticed at the end of

Mr. Norris' presentation, we shortened it considerably on some of the things that he

wanted to say again to accommodate what we understood was the message of the

hearing committee as far as the time limits to give everybody an opportunity to get out of

here by the 8:00, 8:30 hour. It's unfortunate that the timing of his other trial in Denver

necessitated this along with the much longer process that this has become that many of

us envisioned in good faith originally at the beginning of the process, but

I just wanted to

note for the record that there was some testimony that was not given

. Thank you.

MR. BROWN

: Thank you, and I would note that

there is still the opportunity to

submit written items into the record for 30 days after the close of this public

hearing and I noted that Mr. Norris indicated that he intended to do that with at

least some of his materials

.

Tr. 2/24/06, p. 158; C-7610 (Emphasis added). Thus, although we acknowledge that public

comment is not accorded the same weight as facts admitted into evidence, Mr. Norris should not

be penalized for submitting public comment when he was unable to present all of his information

at the siting hearing because of time constraints. City of Geneva v. Waste Management of

Illinois, Inc., PCB 94-58 (July 21, 1994), slip op. at 17. This is especially true in that even if his

testimony is rejected, the County Staff Report still says the same thing. Attacking the messenger

leaves the message intact.

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A county board’s finding of failure to meet the health and safety and traffic flow criteria and

subsequent denial of a landfill site permit is not against the manifest weight of the evidence if it is not met,

in part, because it cannot be established that the facility would provide adequate protection for water

wells in the area. McLean County Disposal, Inc. v. County of McLean, 207 Ill.App.3d 477, 566 N.E.2d 26

(4

th

Dist. 1991). That is precisely the situation here: Petitioner failed to satisfy Criterion 2 because it did

not establish that the facility would provide adequate protection for water wells in the area. Thus, such a

finding by the County Board was not against the manifest weight of the evidence.

Much has been made about the recent Town & Country case. See Town & Country Utilities, Inc.,

v. Illinois Pollution Control Bd., Nos. 101619, 101652 cons., March 22, 2007. As a matter of precedential

value, Town & Country does very little to impact the Board’s review of the instant siting appeal. Town &

Country, however, has enormous factual precedence to the instant case. In Town & Country, the “salient

evidentiary issue” presented by the appeal concerned the potential groundwater impact of the proposed

landfill. In other words, the Board reversed the local siting authority’s decision granting approval on

Criterion 2 based solely on the issue of groundwater.

Even though the Board reversed the local siting authority’s decision based solely on groundwater

issues, Criterion 2 concerns much more than those issues. For example, location, proximity to

population, and presence of toxic substances are also analyzed under Criterion 2. In the instant siting

appeal, not only did the County Board determine that Criterion 2 was not satisfied because of potential

groundwater impacts, but the it also determined that Criterion 2 was not satisfied because of other issues

analyzed under that criterion. In addition, in Town & Country, the local siting authority stated, “There is

evidence in the record that the bedrock may constitute an aquifer as opposed to an aquitard.” Town &

Country. The Board found this evidence, that the bedrock may constitute an aquifer, sufficient to deny

the application based on Criterion 2. In the present siting appeal, experts for the Applicant testified that

the proposed facility was

over the interconnected and interfingered Sankoty aquifer. Tr. 2/27/06, p. 18-

29, C7781-83. Thus, the facts in the instant case, even more so than those in Town & Country, suggest

that Criterion 2 is not satisfied.

Because the facts in the underlying siting appeal, including those concerning location, proximity

to population masses and presence of toxic substances, lead to a conclusion that Criterion 2 is not met,

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21

even more so than those facts in Town & Country, the Board should affirm the County Board’s decision

that the Applicant failed to satisfy Criterion 2. Furthermore, Town & Country stands for the proposition

that the Board can overrule the decision of a local siting authority if the local siting authority approved the

application. Nothing in Town & Country, or any other Pollution Control Board case for that matter,

indicates that the Board can reverse a local siting authority’s decision when the local siting authority

initially denied the application based on credible evidence. In the instant siting appeal, since the County

Board initially denied the application, the Board should not reverse its decision unless the County Board’s

decision was against the manifest weight of the evidence. It was not.

In deciding not to approve a petition to establish a landfill, the Pollution Control Board cannot

review on a de novo basis the public health evidence relied upon by a county board. City of East Peoria

v. Pollution Control Bd., 117 Ill.App.3d 673, 452 N.E.2d 1378 (3

rd

Dist. 1983). In City of East Peoria,

evidence was presented that demonstrated that the proposed landfill site was directly over the Sankoty

Aquifer. Such proximity of landfill wastes and public water was the basis of the County Board’s public

health concern and of the site location denial. The court found that the Board could not review that basis

using a de novo standard. City of East Peoria, 117 Ill.App.3d at 676, 452 N.E.2d at 1380. The same

analysis applies to the instant case. The County Board was entitled to deny the application if it

determined that the proximity of the landfill expansion to the interconnected Sankoty aquifer creates a

present or future public health concern, even if all technical requirements of the application process are

otherwise met. Thus, the finding that Criterion 2 was not satisfied is not against the manifest weight of

the evidence.

D.

Criterion #3

: The County Board’s Finding that the Facility is Not so Located as to

Minimize Incompatibility with the Character of the Surrounding Area and to

Minimize the Effect on the Value of the Surrounding Property is Not Against the

Manifest Weight of the Evidence.

In its Brief, Petitioner highlighted the fact that no witnesses were presented by opponents to rebut

DeClark and Lannert’s testimony. (Petitioner’s Brief, p. 111). Although the opponents did not present any

witnesses, the cross-examinations by the opponents were sufficient to rebut and raise doubt as to

DeClark and Lannert’s testimonies and reports. DeClark and Lannert’s testimonies were contradictory

and showed bias in their opinions. The County Board was free to use such contradictions and bias in

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22

determining their credibility and making a decision as to whether Petitioner’s evidence had met its burden

of proof.

The area to the east of Petitioner’s facility is overwhelmingly residential. Nonetheless, Petitioner

has failed to provide adequate PDC-owned buffer lands between places where hazardous wastes have

been, and are proposed to continue to be, deposited and adjacent properties.

Petitioner’s claim that property values will not decrease is fundamentally flawed. Petitioner

presented no evidence that buyers or sellers of property in close proximity to the landfill were even aware

of the existence of the hazardous waste facility. Tr. 2/23/06, Page 291-292; C-7530.

By not analyzing the 52 percent of the land to the west of the site, which is predominantly

agricultural and vacant, DeClark did not conduct a report of the entire surrounding property. Rather, he

only analyzed half of it. PDC Application, Volume 2, p. 3.2-21. DeClark admitted that he did not

investigate the agricultural land on the west half of the site and never even considered doing a study on it.

Tr. 02/23/06, p. 285; C-7528. Thus, the Peoria County Board could have reasonably concluded that

Petitioner and DeClark were only presenting half of the picture.

Furthermore, the Peoria County Board could have questioned the credibility of DeClark by

reasons of his past experience. DeClark has studied valuation and impact issues relating to landfill siting

on four prior occasions and found no affect on value from the location of a landfill on

all

four occasions.

Tr. 02/23/06, p. 275; C-7526. Although DeClark opined that there is no impact on property values, he

declared that every real estate salesperson has a duty to disclose the existence of the landfill to their

clients and customers. Tr. 02/23/06, p. 292; C-7530. It defies reality and common sense to declare that

a real estate salesperson must disclose the existence of a hazardous landfill to potential buyers when

such disclosure allegedly has no impact on valuation.

Although some residences are a mere 200 feet from Petitioner’s site, Petitioner’s consultant,

Chris Lannert, testified that no incompatibility was found. Tr. 02/23/2006, p. 256; C-7521. Mr. Lannert

also concluded that no visual detriment to the landscape would be created by adding 45 feet in elevation

to the site. PDC Application, Volume 2, p. 3.1-13. In addition, Mr. Lannert failed to analyze the size of

the population living in close proximity to the landfill but acknowledged the presence of a large number of

homes and apartment buildings, including some ongoing new construction. Tr. 02/23/06, p. 214-215; C-

Electronic Filing, Received, Clerk's Office, April 6, 2007

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23

7511. Mr. Lannert admitted that he had never seen an operating hazardous landfill this close to a major

residential population center, yet, he concluded that Petitioner’s landfill was found to be compatible with

its surroundings. Tr. 02/23/06, p. 216-217; C-7511. In fact, he acknowledged that there are houses

"within 200 feet" of the edge of the PDC facility within the City of Peoria. Tr. 2/23/06, p. 256.

To distort and minimize the truly massive impact and proximity that another 45 feet vertical

expansion would have on adjacent residential properties, the Lannert Group manipulated Proposed View

3 by taking it from a third-story balcony in a distant apartment (800 feet back) to lessen the modeled

impact, a greater distance away than any other computer modeled photo created by Lannert Group. PDC

Application, Volume 2, p. 3.1-11 and Photo Sheet 3.1-5, 2-23-06 Tr., p. 224-25; C-7513. Mr. Lannert

stated that the initial picture forming the basis for the modeled image was taken on a public access cul-

de-sac at ground level, and that he always stayed on public property, and implied that the computer use

of aerial photos made it look like the picture was taken from a higher vantage point. Tr. 02/23/06, p. 223-

227; C-7513-7514. The correct answer (a third-floor balcony) was in the report itself at page 3.1-11,

which the testifying witness apparently did not know because on two separate occasions, he said the

photograph was taken at ground level on a public street. It was this "Proposed View 3" which Mr. Lannert

used to purportedly discredit the PFATW photos. He was the one who was ultimately discredited by his

overreaching.

Although Mr. Lannert is a member of the American Planning Association (APA), he was

unfamiliar with the APA’s Guide on Solid and Hazardous Waste Management dated April 15, 2002. In

particular, he was not familiar with Policy 6 which recommended that environmental protection and

environmental justice should be ensured in every landfill siting determination. Mr. Lannert agreed with

said policy, just not as it applied to the PDC case. Tr. 02/23/2006, p. 172; C-8817.

Mr. Lannert essentially testified that since the landfill is already in existence, the surrounding uses

must be compatible. However, the Application is treated as if it is a new pollution control facility, and

compatibility standards must be applied as strictly to an expanded facility as to one not yet in existence.

Thus, just because a landfill is already is existence does not automatically ensure that Criterion #3 is

satisfied.

Electronic Filing, Received, Clerk's Office, April 6, 2007

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24

CONCLUSION

WHEREFORE, PEORIA FAMILIES AGAINST TOXIC WASTE and the HEART OF ILLINOIS

SIERRA CLUB, respectfully pray that the Illinois Pollution Control Board deny all of Petitioner’s requests

for relief, affirm the decision of the Peoria County Board denying Petitioner’s landfill expansion

application, and for such other and further relief as is just and proper.

Peoria Families Against Toxic Waste and

Heart of Illinois Sierra Club

By:____________________________

One of Their Attorneys

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams Street, Suite 360

Peoria, Illinois 61602-1320

Telephone: (309) 637-1400

Facsimile: (309) 637-1500

---

25

STATE OF ILLINOIS

)

)

SS

COUNTY OF PEORIA

)

PROOF OF SERVICE

The undersigned hereby certifies that a copy of the Amicus Brief was served upon the following

persons by the methods indicated below on the 6th day of April, 2007, before 5:00 pm, with all fees

thereon fully prepaid and addressed as follows:

Service List

Ms. Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, Illinois 62794-9274

Mr. David A. Brown

Black, Black & Brown

101 South Main Street

P.O. Box 381

Morton, Illinois 61550

Mr. Kevin Lyons

Peoria County State’s Attorney

324 Main Street, Room #111

Peoria, Illinois 61602

Mr. George Mueller

Law Offices of George Mueller, P.C.

628 Columbus Street, Suite 204

Ottawa, Illinois 61350

Mr. Brian J. Meginnes

Elias, Meginnes, Riffle & Seghetti, P.C.

416 Main Street, Suite 1400

Peoria, Illinois 61602-1611

By: ____________________________

David L. Wentworth, II

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams, Suite 360

Peoria, IL 61602

Telephone: (309) 637-1400

Facsimile: (309) 637-1500

---

26

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

)

)

Petitioner,

)

)

PCB 06-184

v.

)

) (Pollution Control Facility Siting Appeal)

PEORIA COUNTY BOARD,

)

)

Respondent.

)

NOTICE OF FILING

The undersigned hereby certifies that the Amicus Brief of Peoria Families Against Toxic Waste

and Heart of Illinois Sierra Club, was filed with the Illinois Pollution Control Board via electronic filing as

authorized by the Clerk of the Illinois Pollution Control Board, on the 6th day of April, 2007.

Peoria Families Against Toxic Waste and

Heart of Illinois Sierra Club

By: __________________________

David L. Wentworth II

One of their attorneys

David L. Wentworth II

Emily R. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams, Suite 360

Peoria, IL 61602

Telephone: (309) 637-1400

Facsimile: (309) 637-1500