ILLINOIS POLLUTION CONTROL BOARD
January 24, 2008
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Petitioner,
v.
COUNTY BOARD OF KANKAKEE
COUNTY,
Respondent.
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PCB 04-186
(Pollution Control Facility
Siting Appeal)
DONALD J. MORAN AND NANCY RICHARDSON OF PEDERSEN & HOUPT APPEARED
ON BEHALF OF WASTE MANAGEMENT OF ILLINOIS, INC; and
RICHARD S. PORTER AND CHARLES F. HELSTEN OF HINSHAW & CULBERTSON
APPEARED ON BEHALF OF THE COUNTY BOARD OF KANKAKEE COUNTY.
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
Waste Management of Illinois, Inc. (Waste Management) appealed a 2004 decision of the
County Board of Kankakee County (County) denying siting for expansion of a pollution control
facility, known as the Kankakee Landfill. Waste Management challenges the decision asserting
that the proceedings were fundamentally unfair and that the decision was against the manifest
weight of the evidence on three of the nine criteria found in Section 39.2(a) of the Environmental
Protection Act (Act) (415 ILCS 5/39.2(a) (2006)). The Board finds that the proceedings before
the County were fundamentally fair. The Board further finds that the County’s decision relating
to the need for the facility (415 ILCS 5/39.2(a)(i) (2006)), the facility’s design to minimize the
impact on surrounding property (415 ILCS 5/39.2(a)(iii) (2006)), and the traffic patterns (415
ILCS 5/39.2(a)(vi) (2006)) is not against the manifest weight of the evidence. The Board
therefore affirms the County’s decision to deny siting.
The opinion that follows will first delineate the history of this case and then discuss and
summarize the facts. The next portion of the opinion will set forth the statutory and case law
relevant to the Board’s review of a landfill siting appeal. Then, the Board will set forth the
issues. The Board will proceed with a discussion of the parties’ arguments on each issue and
then make the Board’s findings.
PROCEDURAL BACKGROUND
On April 22, 2004, Waste Management timely filed a petition (Pet.) asking the Board to
review a March 25, 2004 decision of the County denying siting approval. Pet. at 1-3. The
County voted to deny the application for failure to establish that criteria (i), (iii), and (vi) of
2
Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (i), (iii), and (vi) (2006)) were met. The County
found that Waste Management failed to establish that the facility was necessary to accommodate
the waste needs of the area it is intended to serve (415 ILCS 5/39.2(a)(i) (2006)). The County
also found that Waste Management failed to establish that the facility is located so as to
minimize incompatibility with the character of the surrounding area and to minimize the effect
on the value of the surrounding property (415 ILCS 5/39.2(a)(iii) (2006)). Finally, the County
found that Waste Management failed to establish that the traffic patterns to and from the facility
are so designed as to minimize the impacts on existing traffic flow (415 ILCS 5/39.2(a)(vi)
(2006)).
On June 30, 2004, the County timely filed the record (C) in this proceeding. At that time,
the County also filed a motion seeking to provide only a single copy of two items in the record
and that motion is granted.
After Waste Management filed the petition for review, on June 22, 2004, Michael Watson
(Watson) filed a motion to intervene in the proceeding and on July 1, 2004, Merlin Karlock
(Karlock) also filed a motion to intervene. On July 22, 2004, the Board denied those motions.
Also, on July 23, 2004, Keith Runyon (Runyon) filed a motion to intervene in the proceeding.
On August 19, 2004, the Board denied Runyon’s motion to intervene. Runyon filed a second
motion to intervene on June 24, 2005, which the Board also denied on July 21, 2005. All the
parties were granted leave to file
amicus curiae
briefs.
Hearings were held on April 6 (4/6 Tr.) and April 7, 2005 (4/7 Tr.) before Board Hearing
Officer Bradley Halloran. The hearings were held in Kankakee, Kankakee County. The hearing
officer found all witnesses credible.
See
Hearing Officer Order at 1 (May 4, 2005).
On May 13, 2005, Waste Management filed the opening brief (WMI Br.). On May 20,
2005, Watson filed his
amicus curiae
brief (W.Br.) and on May 23, 2005, Runyon filed his
amicus curiae
brief (R.Br.). Karlock filed his
amicus curiae
brief on May 24, 2005 (K.Br.).
There were several motions regarding the briefs and the briefing schedule, which will not be set
forth here. The hearing officer has addressed all the outstanding motions regarding the briefs.
Pursuant to the revised briefing schedule, on November 20, 2007, the County filed the response
brief (C. Br.) and on December 13, 2007, Waste Management filed the reply brief (Reply).
FACTS
On September 26, 2003, Waste Management filed an application seeking approval for
expansion of a pollution control facility known as the Kankakee Landfill located in Kankakee
County (2003 Application) with the County. C1-C10. The application was “essentially the same
as the siting request” filed by Waste Management on August 16, 2002 (2002 Application). C1 at
1. The County approved the 2002 Application; however, the Board reversed that decision due to
lack of jurisdiction. City of Kankakee v. County of Kankakee and Waste Management of
Illinois, Inc., PCB 03-125, 03-133, 03-134, and 03-135 (consol.) (Aug. 7, 2007),
aff’d sub nom.
Waste Management of Illinois, Inc. v. PCB
, 356 Ill. App. 3d 229, 826 N.E.2d 586 (3rd Dist.
2005).
3
Waste Management seeks approval to expand the existing landfill located at 6259 South
U.S. Route 45/52, Kankakee County. C1 at Criterion 2, 1-1. The existing facility consists of a
total area of approximately 179 acres, 51 acres of which is solid waste landfill.
Id
. The
remaining 128 acres are used for buffer, surface water management, borrow sources, support
facilities and access areas.
Id
. The 2003 Application proposes horizontal expansion of
approximately 296 acres, an approximate 6-acre overlay to the existing facility.
Id
.
In accordance with the Kankakee County ordinances, the 2003 Application was referred
to the “Regional Planning Commission” (RPC). Public hearings were conducted from
January 12, 2004 through January 21, 2004. C2604-2616. At those hearings, the testimony and
documentary evidence from the 2002 Application were admitted as Waste Management Exhibits.
See
C1898-2603
1
. Waste Management provided testimony from eight witnesses, all of who
testified concerning the 2002 Application as well. C2604-2616; C2576-2603.
Watson, Karlock, and Keller participated in the county siting hearings as opponents to the
landfill. 4/6 Tr. at 109-10; 114. In addition, Mr. Bruce Harrison appeared in opposition to the
landfills.
Id
. Mr. Harrison did not give his address to the County during the hearings.
See
C2613 at 86; C2616 at 250. For at least a portion of time during the landfill siting proceedings,
Mr. Harrison lived on Mr. Keller’s property and then Mr. Watson’s property.
See
4/6 Tr. at 111.
On March 9, 2004, the RPC filed recommendations on the siting application. C4100-
4125. The RPC found that all nine statutory criteria had been met and recommended several
conditions for each of the criteria.
Id
. On March 14, 2004, the County voted to deny the siting
application on the following votes: criterion (i), 12 in favor and 16 opposed; criterion (ii), 22 in
favor and six opposed; criterion (iii), 10 in favor and 18 opposed; criterion (iv), passed on a
voice vote; criterion (v) 20 in favor and six opposed; criterion (vi), 12 in favor and 16 opposed;
criterion (vii) was found inapplicable; criterion (viii), 25 in favor and 3 opposed; criterion (ix) 27
in favor and one opposed. C4115-25
Criterion (i) - Need
Ms. Sheryl Smith testified and prepared a report on behalf of Waste Management
concerning criterion (i). C1 at Criterion 1 p. 36; C2607-08; 2583-85. The report in the 2003
Application was the same report as the one prepared for the 2002 Application except the report
“was updated for additional information on waste receipts and landfills [sic] disposal capacity
and other information that might impact waste generation.” C2607 at 49. The service area for
both applications was identical and included Kankakee, Cook, DuPage, Kane, Kendall, Grundy,
and Will counties in Illinois and Lake, Newton, Porter, and Jasper counties in Indiana. C1 at
Criterion 1 p. 4; C2583 at 12. The capacity for the expansion is 30 million tons. C2607 at 90.
1
The Board notes that Waste Management in its brief cites to the 2002 application on numerous
occasions; however, a review of the County record and the Board’s proceedings nowhere
indicate that the 2002 Application was incorporated into this record. Therefore, the Board relies
on its opinion and order in City of Kankakee, PCB 03-125, 03-133, 03-134, and 03- 135
(consol.), where necessary.
4
Ms. Smith described her methodology in evaluating the need for the expansion. Ms.
Smith began with the defined service area and collected information on the population for each
county over the 27-year operating life of the proposed facility. C2583 at 10;
see also
C2607 at
49-51. Ms. Smith reviewed solid waste management plans for counties in the service area to
identify individual or per person waste generation rates and then estimated net waste requiring
disposal over the 27 years. C2583 at 10-11;
see also
C2607 at 49-51. Ms. Smith also applied
recycling goals from county solid waste plans. C2583 at 12;
see also
C2607 at 49-51. These
steps allowed her to develop total waste generation from the service area and estimate that net
disposal requirements totaled between 123.6 to 219.8 million tons. C2583 at 12-13. During the
2003 Application process, Ms. Smith testified the net disposal requirements are projected
between 105 million tons and 188 million tons. C2607 at 49-51; C1 at Criterion 1 p. 30.
After identifying net disposal requirements, Ms. Smith identified solid waste facilities
providing disposal to the service area and determined whether there was sufficient capacity for
disposal. C2583 at 11;
see also
C2607 at 49-51. Ms. Smith collected information on waste
disposal facilities in Wisconsin, Indiana, Michigan, and Illinois to identify: 1) facilities that were
currently permitted; 2) how much waste each facility receives each year; 3) the remaining
capacity at each facility; and 4) whether each facility received waste from the service area.
C2483 at 14. Based on the information gathered, Ms. Smith estimated the available disposal
capacity to the service area to be 56 million tons. C1 at Criterion 1 p. 30; C2607 at 74-75. Ms.
Smith opined that this available capacity will run out in 2009. C2607 at 74.
In performing her calculations, Ms. Smith used recycling rates from the county solid
waste management plans she reviewed. C2607 at 55. However, Ms. Smith admitted that those
rates are substantially below the current recycling rates for many communities. C2607 at 55-56.
Ms. Smith agreed that if the recycling goals of several communities were met in the service area,
landfill capacity would be sufficient until 2015. C2607 at 76.
Ms. Smith also testified that her report did not include capacity from facilities in or near
the service area that were in the siting or permitting process, including the proposed facility in
the city of Kankakee. C2607 at 58. Ms. Smith did not consider certain permitted facilities for a
variety of reasons including the fact that the Spoon Ridge landfill is currently not accepting
waste. C2607 at 76-87.
Ms. Smith further opined that the expansion is necessary to accommodate the waste
needs of the service area because there is a substantial shortfall in capacity. C2607 at 51. Ms.
Smith testified that there would be a 49 million ton minimum capacity shortfall over the 27-year
operating life of the proposed facility. C2607 at 71. Ms. Smith had calculated the minimum
capacity shortfall when testifying on the 2002 Application as 59 million tons over the 27-year
operating life of the proposed facility. C2607 70-72. Ms. Smith also testified to errors in certain
calculations.
Id
. Ms. Smith noted that the expansion will give Kankakee County another 20
years of disposal capacity.
Id
.
5
Criterion (iii) - Minimize Effect on Surrounding Property
Compatibility
Mr. J. Christopher Lannert testified on behalf of Waste Management concerning criterion
(iii). C1 at Criterion 3 (land use planning); C2607; 2577 and 2578. Mr. Lannert’s group
prepared the report on criterion (iii) for Waste Management.
Id
. Mr. Lannert testified that the
reports prepared for the 2002 Application and the 2003 Application were identical. C2607 at 10.
Mr. Lannert stated that he had driven around and checked the area and also refreshed his
memory by looking at his prior testimony.
Id
.
Mr. Lannert’s group evaluated the compatibility of the existing land uses within one and
one-half miles of the existing landfill site. C1 at Criterion 3 (land use planning) p. 6. The
supporting documentation for the report includes aerial photographs, the local development
codes, zoning map, and comprehensive land use plan. C1 at Criterion 3 (land use planning) p. 4.
The documentation includes the Kankakee County zoning ordinance and map and the Kankakee
County comprehensive plan and map.
Id
. Field surveys were also performed during January and
March 2002.
Id
.
According to Mr. Lannert, the predominant land use within the one and one half mile
study area is agricultural and/or open spaces with some scattered homes. C2577 at 60; C1 at
Criterion 3 (land use planning) p. 6. Immediately north of the site is a KOA campground and
adjacent residential uses while the area to the east is dominated by agricultural use and the
Iroquois River Valley. C1 at Criterion 3 (land use planning) p. 6. South and west of the site
agriculture and open space dominate, with scattered single-family homes and a small grouping of
residences to the west.
Id
. Mr. Lannert testified that agricultural fields and/or open spaces,
along with the Iroquois River and the drainage creeks, account for approximately 94% of the
land uses. C2577 at 60; C1 at Criterion 3 (land use planning) p. 7.
The remaining 6% of the area around the site is residential, industrial, or commercial. C1
at Criterion 3 (land use planning) p. 7. Residential uses constitute 3.8% of the land uses and
have coexisted with the current landfill.
Id
. The immediately adjacent land uses and physical
improvements serve as land use buffers or transitions to the surrounding land uses in the area.
C1 at Criterion 3 (land use planning) p. 6. The site is within Kankakee County’s jurisdiction and
is zoned agricultural, which allows sanitary landfills as a special use with the zoning district. C1
at Criterion 3 (land use planning) p. 10.
A landscape-screening plan is proposed for the expansion. C2577 at 69; C1 at Criterion 3
(land use planning) p. 12. The landscape-screening plan will use existing in-place vegetation
next to existing homes and will add additional screening berms around the expansion. C2577 at
69-70. The screening berms will be a variety of heights between 16 and 18 feet and will include
ornamental and deciduous trees planted along the top.
Id
.
Mr. Lannert did not consider a new convention center and aquatic center under
construction near the expansion when considering compatibility. C2607 at 11-12. Mr. Lannert
6
also did not review the City of Kankakee’s comprehensive plan or talk to developers and bankers
in the area. C 2607 at 12. Mr. Lannert agreed that additional growth could occur around the
Iroquois River, but he did not perform any numerical analysis to determine if the expansion
would retard growth. C2607 at 18.
Mr. Lannert opined that the expansion is compatible with the surrounding area. C2607 at
21; C2577 at 72.
Property Values
General.
Ms. Patricia McGarr from Integra Realty Resources testified on behalf of
Waste Management concerning property values. C2580-82; C2605-06. Integra Realty
Resources prepared the Real Estate Impact Study included in the application. C1 at Criterion 3
(real estate). Ms. McGarr testified that she received a diploma from Richard J. Daley College
(C2580 at 6-7; C1907-12); however, Ms. McGarr was unable to provide a copy of that diploma.
The degree was not necessary to receive her real estate appraiser’s license or the MAI
designation
2
. C2605 at 43-44. Richard J. Daley College did issue a degree to Ms. McGarr in
January 2004. C2605 at 100-03.
Ms. McGarr performed a comparable property analysis and prepared the written report
included in both the 2002 Application and the 2003 Application. C2580 at 10; C2605 at 32-33.
The fundamental principal of comparable property analysis is that, if there is an impact on
surrounding property values, the impact will be reflected by a comparison of sale prices and
appreciation. C2580 at 10-11. Ms. McGarr accomplished the analysis by comparing a target
area with a control area.
Id
. The control area is generally an area located in a similar location or
general location but removed from the landfill. The target area is the area closest to the landfill.
Id
.
The target area chosen was one mile around the existing facility. C2580 at 12, 49. The
control area was an area one mile away from the existing facility.
Id
. The control area is in
Kankakee County to ensure that the tax rate is the same and also is located in the same school
district. C2580 at 51. Both areas do include different townships.
Id
. The control area includes
features that could also negatively impact property values such as an interstate highway and a
railway. C2606 at 48, 50. In addition, the target area has more river frontage. C2606 at 52-53,
66.
The 2003 Application contains additional data that is reflected in that report. C2605 at
33. Specifically, there was a new farmland sale in the target area and residential sales in both the
target and control areas.
Id
. Ms. McGarr collected data for her study from the township
assessment offices and reviewed information for the Multiple Listings Service of Northern
Illinois (MLS). C2580 at 11. Using this information she developed the analysis and findings
filed with the application. C1 at Criterion 3 (real estate). For this expansion, Ms. McGarr
2
MAI designation is a Member of the Appraisal Institute that is earned after completing a
graduate-level curriculum, a two-day comprehensive exam, a written demonstration appraisal
report and obtaining 3,000 hours of certified experience. C2580 at 9.
7
examined 472 agricultural sales over 13 years and 225 single-family home sales over five years.
C1 at Criterion 3 (real estate) p. 4. Ms. McGarr did not interview homeowners specifically, nor
did she perform any actual appraisals in developing her findings. C2605 at 114-15.
In addition to the study for this expansion, Ms. McGarr has performed a study for the
existing Settler’s Hill Recycling and Disposal Facility located in Kane County. C1 at Criterion 3
(real estate) p. 4. For that study, 922 sales were reviewed.
Id
.
Residential Sales.
The study indicates that the trend over the past ten years is to divide
large farmsteads into one-to-ten acre home sites. C1 at Criterion 3 (real estate) p. 6. In the target
area over a four-year period (1999 to 2003) 13 homes were sold with an average home site of
3.62 acres.
Id
. The sales prices ranged from $40,000 to $260,000.
Id
. Two homes within 5,000
feet of the existing facility were sold and the prices were $223,000 and $260,000.
Id
.
In the control area, during that same period of time, 12 homes have been sold. C1 at
Criterion 3 (real estate) p. 6. The lot sizes in the control period were smaller, ranging from 0.10
acres to 2.65 acres and averaging 0.77 acres.
Id
. The sale prices ranged from $660,000 to
$139,000.
Id
.
In order to compare the prices between the target and control areas, the prices were
adjusted to compensate for the different lot sizes. C1 at Criterion 3 (real estate) p. 8. This
resulted in a negative adjustment for the target area and the resulting average price for home sale
became $95,890.
Id
. The control areas average price is $93,573.
Id
. Ms. McGarr also used the
MLS database to explore market value of homes in the Kankakee area.
Id
. The prices ranged
from $11,000 to 252,500, with an average sale price of $79,942.
Id
.
Farm Land Sales.
Ms. McGarr researched sale prices for farmland located within the
target area over the past ten years. C1 at Criterion 3 (real estate) p. 9. Between the period of
1990-1994, five sales occurred within the target area with the average sale containing 40 acres
and an average sale price of $1,931 per acre.
Id
. Between 1995 and 2003, there were three sales
containing an average of 23 acres with an average sale price of $3,089 per acre.
Id
.
In the control area there were three sales between 1990-1994, averaging 93 acres and
averaging $2,018 per acre. C1 at Criterion 3 (real estate) p. 9. From 1995-2003, there were
three additional sales.
Id
. The average size was 18 acres and the average price was $2,359 per
acre.
Id
. Ms. McGarr also examined sales in Kankakee County for the same periods.
Id
. For
1990-1994, the average size was 68 acres with an average price of $2,207 per acre. From 1995-
2002, the average size was 76 acres with and average cost of $3,189 per acre.
Id
.
Settler’s Hill.
Ms. McGarr chose Settler’s Hill because of similarities between the
expansion and Settler’s Hill. C2580 at 19-20. For example, Waste Management has operated
the facility for over 20 years; at the inception the landfill was in a rural area and was located near
the Fox River.
Id
. Settler’s Hill is also similar in size and daily volumes of the expansion.
Id
.
8
Ms. McGarr evaluated 922 sales to study the impact of Settler’s Hill on real estate values.
C1 at Criterion 3 (real estate) pp. 12-13. Ms. McGarr opined that the data does not reflect a
negative or measurable discernible impact on property values. C2580 at 22.
Public Comment
Mr. Watson presented a public comment at the close of the hearing which was a report
prepared by Peter E. Hopkins of Hopkins Appraisal Service. C2859-76. The comment takes
issue with the methods used by Waste Management, specifically because the prices for property
were averaged. C2866-67. Another shortcoming in Mr. Hopkins opinion is the failure to
account for the “nature of farmland prices” in making comparison. C2867. Mr. Hopkins opined
that the inclusion of Settler’s Hill was an inappropriate comparison and the property value
guarantee offered by Waste Management was inadequate. C2870-72.
Criterion (vi) - Traffic Patterns
Stephen Corcoran
Mr. Stephen Corcoran, with Metro Transportation Group, Inc., testified on behalf of
Waste Management concerning criterion (vi). C2579; C2610. In addition, Metro Transportation
Group provided a report that was included in the application. C1 at Criterion 6. Mr. Corcoran
testified that the report filed with the 2003 Application is essentially identical to the report filed
with the 2002 Application. C2610 at 8.
Mr. Corcoran testified that a traffic impact study consists of three main components.
C2579 at 19. The first is to identify the existing conditions in the study area including traffic
volume and roadway conditions.
Id
. Second, the proposed changes to the roadway system must
be examined in terms of character, the development, the amount of traffic, and getting in and out
of the site.
Id
. The third step is to combine the first two and see how the changes impact the
existing roadway. C2579 at 20.
In this instance, Mr. Corcoran evaluated the existing road conditions by examining the
road and noting that the roadway is a two-lane north-south highway with a 55 mph speed limit.
C1 at Criterion 6 p. 3. The existing facility access drives are located on US 45/52 with an
inbound lane that is 25 feet in width.
Id
. Under future conditions, these access drives are
proposed to be removed and a single full access drive located on US 45/52.
Id
. Mr. Corcoran
also performed manual traffic counts in January 2002.
Id
; C2579 at 21.
Next, Mr. Corcoran indicated that the traffic from the proposed expansion was examined
to determine where the traffic would come from and go to. C2579 at 22. The number of
vehicles was looked at as well as the volume of traffic and when that traffic volume would be the
highest.
Id
.
9
Finally, the two sets of information were combined and several additional factors were
considered. C2579 at 30-34. The additional factors included an analysis of the roadway
capacity, a gap study
3
and a sight distance analysis. C1 at Criterion 6 pp. 13-14.
Mr. Corcoran’s study indicated that US 45/52 has an existing two-way volume of
approximately 5,200 vehicles per day. C1 at Criterion 6 p. 5. The peak hours of traffic flow are
during the morning between 7:00 a.m. and 8:00 a.m. and the evening between 4:30 p.m. and 5:30
p.m.
Id
. During those peak hours traffic volumes were found to be 368 vehicles and 435
vehicles, respectively. C2579 at 24. Mr. Corcoran testified that based on calculations, there are
approximately 1,200 cars an hour that go by the site and US 45/52 is operating at about 37%
capacity. C2579 at 24-25. Mr. Corcoran further testified that the peak traffic for the expansion
should occur between noon and 1:00 p.m., so that the peak hours of the expansion will not
coincide with the peak hours of the traffic on US 45/52. C2579 at 27-28.
School buses travel along US 45/52, with peak hours between 7:00 and 8:00 in the
morning and between 3:00 and 5:00 p.m. in the mid-afternoon. C2610 at 44-45; C2613 at 12.
Mr. Corcoran counted 12 school buses during the morning hours and approximately six in the
afternoon. C2610 at 44-45.
Mr. Corcoran and Metro Transportation Group, Inc. found that there are adequate gaps to
serve the expansion traffic. C2610 at 57-60. Mr. Corcoran noted that the Illinois Department of
Transportation (IDOT) gap requirement is 11.5 seconds and adjusting for semi-trailers results in
a gap requirement of 15.5 seconds. C2610 at 57. In addition, Mr. Corcoran indicated that the
sight distance exceeded recommended distances. C1 at Criterion 6 p. 14. Mr. Corcoran opined
that the traffic patterns for the expansion have been designed to minimize the impact on existing
traffic patterns. C1 at Criterion 6 p. 18; C2579 at 34.
Brent Coulter
Mr. Brent Coulter testified on behalf of Watson on the issue of criterion (vi). C2613.
Mr. Coulter opined that the expansion had not been designed to minimize the impact on existing
traffic patterns. C2613 at 8. Mr. Coulter arrived at his conclusion based on three categories.
C2613 at 9-10. The first is the impact of the expansion on proposed school bus operations.
Id
.
Second, Mr. Coulter has concerns about the intersection improvements at the site.
Id
. And third,
Mr. Coulter is concerned with what is considered “existing traffic flow” in this context.
Id
.
More specifically concerning school buses, Mr. Coulter contacted the local school
districts and was informed that there are three buses making multiple stops on the section of the
roadway between 6000 South and 5000 South on US 45/52. C2613 at 12. Mr. Coulter indicated
that there was a lot of stopping to pick up and drop off students during the hours of 7:00 a.m. and
7:45 a.m. and 3:00 p.m. and 3:45 p.m.
Id
. Mr. Coulter opined that those times have the potential
to overlap with significant truck traffic on U.S. 45/52.
Id
. Mr. Coulter expressed concerns about
3
A gap study is a measure of the interval between vehicles traveling up and down the roadway,
which allows for a determination of whether sufficient time exists for turning or pulling on to the
roadway. C2579 at 30-31.
10
potentially inattentive truck drivers on the road during those periods when school buses will be
stopping. C2613 at 13.
Mr. Coulter also had concerns with the proposed design of the intersection
improvements. C2613 at 14. Mr. Coulter agreed with the recommendation to add northbound
and southbound turn lanes at the site access.
Id
. However, the proposed design included a 12-
foot median and IDOT guidelines recommend a 14-foot median.
Id
. Further, Mr. Coulter
indicated that the dimensions of the storage and taper for the southbound turn lane do not meet
IDOT guidelines either, according to Mr. Coulter. C2613 at 15. Mr. Coulter also believes that
the shoulder should be improved consistent with IDOT guidelines. C2613 at 15-16. Mr. Coulter
was not aware if the intersection design study prepared by Metro Transportation Group had been
submitted to IDOT and approved. C2613 at 33-34. Mr. Coulter noted that IDOT approval may
not address his concerns. C2613 at 37. Mr. Coulter also expressed concerns about the sight
distance and opines that 570 feet may not be sufficient. C2613 at 17. Mr. Coulter did concede
that the sight distance was over 1,100 feet southbound and even farther northbound while
standing on the expansion access road. C2613 at 36.
Testimony
Mr. Darrel Bruck testified at the hearing before the Board concerning the two
applications. 4/6 Tr. at 29-30. Mr. Bruck is a lifelong resident of Kankakee County and he
testified that he noticed some “inconsistencies” in statements made at the Board’s hearing.
Id
.
Fundamental Fairness Testimony
At the Board’s hearing, testimony was provided by 22 individuals addressing issues
relating to the fundamental fairness of the proceedings before the County. The following
Kankakee County Board Members testified:
Karen Hertzberger
Larry Gibbs
Jamie Romein
Elmer E. Wilson
Bob Scholl
Edwin Meents
Ann Bernard
Leonard Martin
Ralph Marcotte
Jim Stauffenberg
Michael LaGesse
Linda Faber
Stanley James
Culver Vickery
Ruth Barber
Kelley McLaren
Frances P. Jackson
11
George Washington Jr.
In addition, the following individuals testified:
Debbie Jane Bates
Robert Keller
Keith Runyon
John Skimerhorn Jr.
The Board will summarize the testimony below, beginning with the Kankakee County Board
members and then the other individuals.
Karen Hertzberger
Ms. Hertzberger voted on both the 2002 Application and the 2003 Application. 4/6 Tr. at
42, 46. Ms. Hertzberger supported the 2002 Application, but voted to disapprove the 2003
Application on five of the nine criteria. 4/6 Tr. at 42, 46-47. Ms. Hertzberger voted against the
application on criteria (i), (ii), (iii), (v), and (vi). 4/6 Tr. at 46-47. Ms Hertzberger did not attend
any of the hearings on the 2003 Application. 4/6 Tr. at 45.
Ms. Hertzberger acknowledged that she knows who Bruce Harrison is and that she had
met him. 4/6 Tr. at 48. She met Mr. Harrison between the two votes on the two applications.
4/6 Tr. at 49. Ms. Hertzberger testified that Mr. Harrison approached her at her place of
business, prior to March 17, 2004 (the date the vote was taken on the 2003 Application).
Id
. Ms.
Hertzberger allowed him into her place of business as it is open to the public and she “couldn’t
stop him.” 4/6 Tr. at 50. She believed he was a client with a complaint and took him into a
conference room and Mr. Harrison then told her he was there to talk about the siting application.
Id
. Ms. Hertzberger informed Mr. Harrison that she could not speak to him about the siting
application; however, Mr. Harrison made additional attempts and told Ms. Hertzberger he was
opposed to the siting application. 4/6 Tr. at 51. Ms. Hertzberger described the encounter stating:
“I wouldn’t just listen. I would try to just politely tell him that I couldn’t talk to him.”
Id
. The
encounter lasted only a couple minutes and ultimately Mr. Harrison left her office. 4/6 Tr. at 52.
Ms. Hertzberger stated that Mr. Harrison told her he had talked to other board members
and he tried to contact her three or four more times. 4/6 Tr. at 52-53. The additional attempts
were both in person and by phone.
Id
. Ms. Hertzberger has heard rumors that Mr. Harrison
works for United Disposal Company, which is owned by Watson. 4/6 Tr. at 56-57.
Ms. Hertzberger did not invite Mr. Harrison to her office or solicit a conversation with
him. 4/6 Tr. at 74-75. His appearance did make her uncomfortable because anyone wanting to
discuss the siting application would have made her uncomfortable. 4/6 Tr. at 75-76. Ms.
Hertzberger did not consider anything Mr. Harrison said to her as evidence in the siting
proceeding. 4/6 Tr. at 74. Mr. Harrison did not intimidate her. 4/6 Tr. at 79.
Ms. Hertzberger acknowledged the presence of several picketers on March 17, 2004. 4/6
Tr. at 54. She could not recall what the signs said.
Id
. Ms. Hertzberger also saw signs around
12
Kankakee County, with the slogan “no dump, no Chicago garbage” on the signs. 4/6 Tr. at 54-
55.
Ms. Hertzberger indicated that she had not received any phone calls other than those from
Mr. Harrison; however she did receive many letters. 4/6 Tr. at 57-58. She read one of the letters
and determined that the letter was about the siting application; Ms. Hertzberger quit reading the
letter. 4/6 Tr. at 58. Ms Hertzberger believes the letter was in opposition to the siting
application and she does not have any information that any letter she received supported the
landfill. 4/6 Tr. at 57-58. Ms. Hertzberger did not give the letters to anyone. 4/6 Tr. at 60. Ms.
Hertzberger received several letters after the March 17, 2004 vote, one of which she opened and
it was a thank you note for her vote on the siting application. 4/6 Tr. at 62-63.
Larry Gibbs
Mr. Gibbs did not vote on the 2002 Application, as he was ill. 4/6 Tr. at 208. He voted
to disapprove the 2003 Application. 4/6 Tr. at 210-11. Mr. Gibbs attended some of the hearings
on the 2003 Application. 4/6 Tr. at 208.
Mr. Gibbs received a phone call at home from Mr. Harrison before the March 17, 2004
vote. 4/6 Tr. at 212, 213. Mr. Gibbs indicated that Mr. Harrison spoke generally and when it
became clear that Mr. Harrison was going to discuss the landfill, Mr. Gibbs stopped the
conversation.
Id
. The conversation lasted less than a minute. 4/6 Tr. at 213. Mr. Gibbs did not
solicit contact with Mr. Harrison. 4/6 Tr. at 222.
Mr. Gibbs received less than 50 letters at his home and read only one. 4/6 Tr. 214. Mr.
Gibbs opened that one letter, scanned the letter, and when he discovered that the letter concerned
the siting application he resealed the letter.
Id
. Mr. Gibbs gave all the letters to the Clerk.
Id
.
Mr. Gibbs did not know if the letter was in support or opposition of siting, once he determined
the letter was about the landfill he closed the letter. 4/6 Tr. at 214-15.
Mr. Gibbs did have additional residents approach him in passing about the landfill. 4/6
Tr. at 215. Three separate people at three different times approached Mr. Gibbs as a county
board member to express opposition to the landfill. 4/6 Tr. at 216-17. Mr. Gibbs told each of
these people he could not discuss the landfill after they had expressed their opinions. 4/6 Tr. at
222.
Jamie Romein
Mr. Romein voted on both the 2002 Application and the 2003 Application. 4/6 Tr. at
225, 227. Mr. Romein voted to approve the 2002 Application, but voted to disapprove the 2003
Application on three of the nine criteria. 4/6 Tr. at 227. Specifically, Mr. Romein voted to deny
siting on criteria (i), (iii), and (vi).
Id
. Mr. Romein did not attend the hearings on the 2003
Application. 4/6 Tr. at 226.
Mr. Romein indicated that he knows Bruce Harrison and that Mr. Harrison called his
residence prior to the March 17, 2004 vote. 4/6 Tr. at 239. Mr. Romein stated that Mr. Harrison
13
spoke to him about “no dump, no Chicago garbage” and Mr. Romein informed Mr. Harrison that
the conversation would be
ex parte
.
Id
. Mr. Romein told Mr. Harrison that he could not speak
to Mr. Harrison and that Mr. Harrison would have to see how Mr. Romein voted.
Id
. The
conversation lasted no more than two minutes, and based on Mr. Harrison’s statements, Mr.
Romein assumed Mr. Harrison opposed the expansion. 4/6 Tr. at 239-40.
Mr. Romein also had personal encounters with Mr. Harrison at a job site after the
March 17, 2004 vote. 4/6 Tr. at 241-43. Mr. Harrison was with Mr. Watson in a United
Disposal truck.
Id
. Mr. Harrison attempted to speak to Mr. Romein about the reconsideration of
the siting vote and Mr. Romein informed Mr. Harrison he would vote the way he wanted to. 4/6
Tr. at 243. A second encounter occurred at a stoplight when Mr. Harrison came from a truck
driven by Mr. Watson and got into the vehicle. 4/6 Tr. 244-46. Mr. Romein stated that Mr.
Harrison asserted he had the power to run someone against Mr. Romein in the election. 4/6 Tr.
at 246. Mr. Romein again told Mr. Harrison that Mr. Romein would vote the way he wanted to
vote.
Id
. Mr. Romein did not seek out Mr. Harrison and did not feel threatened by Mr.
Harrison’s conduct. 4/6 Tr. at 253-54.
Mr. Romein received between 20 and 25 letters, which he read. 4/6 Tr. at 229-30. Mr.
Romein read all of the letters and took them to the county clerk. 4/6 Tr. at 230; 253. All the
letters were opposed to siting.
Id
. A letter was sent to Mr. Romein that indicated that Mr.
Romein should vote against the siting application or the author would work against Mr.
Romein’s reelection. 4/6 Tr. at 233-36. Mr. Romein did not feel threatened by that letter. 4/6
Tr. at 236-37. That same letter was sent to the county clerk and is in the county record. 4/6 Tr.
at 250-51; C2720. Mr. Harrison received thank you notes for his vote after March 17, 2004. 4/6
Tr. at 233.
Elmer E. Wilson
Mr. Wilson voted on both the 2002 Application and the 2003 Application. 4/6 Tr. at 259-
261. Mr. Wilson supported both applications.
Id
. Mr. Wilson received maybe half a dozen
phone calls from individuals who identified themselves. 4/6 Tr. at 260-61. Mr. Wilson ended
the conversations when they attempted to discuss the expansion.
Id
.
Mr. Wilson was approached by Mr. Harrison at a local restaurant prior to the filing of the
2002 Application about a spiritual matter. 4/6 Tr. at 262-63. Mr. Harrison subsequently
attempted to approach Mr. Wilson about the 2003 Application. 4/6 Tr. at 263. Mr. Harrison
called and scheduled a meeting with Mr. Wilson about spiritual matters; however the
conversation drifted to the proposed expansion. 4/6 Tr. at 264. Mr. Harrison sought Mr.
Wilson’s position and Mr. Wilson told Mr. Harrison he could not talk about the expansion.
Id
.
Mr. Harrison continued to discuss the expansion, but Mr. Wilson continued to indicate he could
not discuss the matter. 4/6 Tr. at 264-65.
Mr. Harrison indicated that he had talked to people about support and Mr. Wilson took
that to mean Mr. Harrison had other people who opposed the landfill. 4/6 Tr. at 264-65. Mr.
Wilson knew Mr. Harrison opposed the landfill because Mr. Harrison was attempting to get Mr.
Wilson to oppose the landfill. 4/6 Tr. at 265. Mr. Harrison approached Mr. Wilson a few more
14
times and before the vote on March 17, 2004, Mr. Harrison handed Mr. Wilson some petitions.
4/6 Tr. at 266-67. Mr. Wilson threw away the petitions. 4/6 Tr. at 267. Mr. Wilson never
approached Mr. Harrison and at no time did Mr. Wilson feel threatened. 4/6 Tr. at 269-70.
Bob Scholl
Mr. Scholl was not a county board member when the 2002 application was considered.
4/6 Tr. at 4/6 Tr. at 272-73. He did vote on the 2003 Application and voted to disapprove on
three of the nine criteria. 4/6 Tr. at 273-74. Mr. Scholl voted against the siting application on
criteria (i), (iii), and (vi). 4/6 Tr. at 274.
Mr. Scholl was a former teacher of Mr. Harrison’s and Mr. Harrison approached Mr.
Scholl and made statements in opposition to the landfill. 4/6 Tr. at 275. Mr. Harrison made
these statements before the beginning of the siting hearings.
Id
. Mr. Harrison mentioned the
clutter at the current site to Mr. Scholl. 4/6 Tr. at 276. Mr. Scholl’s recollection is that Mr.
Harrison said nothing to him that was not reflected in the record. 4/6 Tr. at 295. Mr. Scholl did
not approach Mr. Harrison and did not feel threatened or intimidated by Mr. Harrison. 4/6 Tr. at
295-96.
Mr. Scholl received several letters that he glanced at and placed in a manila envelope.
4/6 Tr. at 279. Mr. Scholl took the letters to the county clerk.
Id
. The letters that he noticed
were opposed to the expansion.
Id
. Mr. Scholl did not feel threatened or intimidated by the
letters. 4/6 Tr. at 296. Mr. Scholl received thank you notes for his vote on the expansion. 4/6
Tr. at 280.
Mr. Scholl noticed the picketers outside of the public hearing on March 17, 2004. 4/6 Tr.
at 281. He noticed that the picketers were carrying a variety of signs, all opposed to the
expansion.
Id
.
Mr. Scholl indicated that he had seen signs in Kankakee County between January and
March 17, 2004. 4/6 Tr. at 276. The signs said “no dump, no Chicago garbage” and appeared
throughout Kankakee County.
Id
.
Mr. Scholl received one phone call at home. 4/6 Tr. at 275. The phone call was from a
trucking company that supported the siting application.
Id
. Mr. Scholl also received a visitor to
his home; Mr. Scholl informed the visitor he could not discuss the landfill. 4/6 Tr. at 282-83.
The individual returned with literature about landfills generally. 4/6 Tr. at 285-86. Mr. Scholl
assumed the individual opposed the landfill. 4/6 Tr. at 287.
Edwin Meents
Mr. Meents voted on both the 2002 Application and the 2003 Application. 4/6 Tr. at 302.
Mr. Meents voted to approve the 2002 Application; but voted to oppose the 2003 Application on
three of the nine criteria.
Id
. Mr. Meents specifically opposed siting on criteria (i), (iii), and (v).
Id
.
15
Mr. Meents indicated that Mr. Harrison contacted him and invited him to breakfast, prior
to the March 17, 2004 vote. 4/6 Tr. at 312. Mr. Harrison did not say what he wanted to talk
about, but Mr. Meents knew of Mr. Harrison’s interest in the 2003 Application. 4/6 Tr. at 313.
Mr. Meents agreed to go to breakfast because their children had common schooling and
friendships and Mr. Harrison had been a neighbor. 4/6 Tr. at 313. Mr. Meents took Duane
Bertram, another county board member with him to breakfast with Mr. Harrison. 4/6 Tr. at 314.
When Mr. Harrison attempted to discuss the expansion, Mr. Meents cut him off.
Id
. Mr. Meents
told Mr. Harrison he could not discuss the expansion seven or eight times. 4/6 Tr. at 317. The
meeting lasted about 45 minutes and Mr. Meents paid for breakfast. 4/6 Tr. at 315.
Mr. Meents received a number of letters, but did not open any of them. 4/6 Tr. at 310.
Mr. Meents took all the letters to the county clerk.
Id
. Mr. Meents did not open the letters
because he recognized that they were not the type of letters he would normally receive, based on
return addresses. 4/6 Tr. at 311. Mr. Meents had never received this many letters in his 12 years
on the county board.
Id
.
Mr. Meents saw the picketers outside the building before the March 17, 2004 vote. 4/6
Tr. at 306. Mr. Meents believes there were 40 to 50 picketers carrying signs.
Id
. Mr. Meents
determined they opposed the expansion based on the signs. 4/6 Tr. at 307.
Mr. Meents had contact with Mr. Ron Thompson prior to the March 17, 2004 vote. 4/6
Tr. at 318-19. Mr. Thompson offered a public comment on the record at the county hearing and
sought Mr. Meents input on that comment. 4/6 Tr. at 320. Mr. Thompson also approached Mr.
Meents at church to inquire about the date for the vote on the application.
Id
. Mr. Meents and
Mr. Thompson did not discuss the substance of the application. 4/6 Tr. at 323.
Ann Bernard
Ms. Bernard voted on both the 2002 Application and the 2003 Application. 4/6 Tr. at
327, 328. Ms. Bernard voted to deny both applications.
Id
. Ms. Bernard has concerns about the
placement of the expansion over the aquifer. 4/6 Tr. at 336. Mr. Runyon had provided Ms.
Bernard with information on closed loop gasification. 4/6 Tr. at 329-33. Ms. Bernard believes
that the closed loop gasification may be an alternative to landfills. 4/6 Tr. at 333.
Ms. Bernard had conversations with Mr. Runyon prior March 17, 2004; although Ms.
Runyon testified the conversations did not relate to the expansion. 4/6 Tr. at 334-35.
Mr. Harrison also contacted Ms. Bernard prior to the March 17, 2004 voted; however she
indicated her decision was based on the evidence presented at hearing. 4/6 Tr. at 335; 339.
16
Leonard Martin
Mr. Martin voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at 10-
12. Mr. Martin voted to disapprove both applications though he changed votes on the specific
criteria. 4/7 Tr. at 10-12. Mr. Martin attended most of the hearings on the 2003 Application.
4/7 Tr. at 11.
Mr. Martin first met Mr. Harrison in 2003, but has not had any discussions with Mr.
Harrison regarding the siting application. 4/7 Tr. at 20-21. Mr. Martin recalls that he met Mr.
Harrison working primary election campaigns including elections for county board members.
Id
.
Mr. Martin assumed that Mr. Harrison was working for Democratic candidates including Mr.
Watson. 4/7 Tr. at 25-27. Mr. Martin did not however know the specifics of Mr. Harrison’s
activities for the candidates. 4/7 Tr. at 24. Mr. Martin remembers Mr. Harrison at the public
hearing on the siting application and his refusal to give his address, but did not know why Mr.
Harrison was reluctant to give his address. 4/7 Tr. at 25. Mr. Wilson was in contact with Mr.
Harrison until November 2004. 4/7 Tr. at 26. Mr. Martin did not know where Mr. Harrison
might be at the time of the hearing. 4/7 Tr. at 28.
Mr. Martin received less than 20 letters concerning the proposed expansion. 4/7 Tr. at
14. Mr. Martin read the letters and most opposed the landfill expansion.
Id
. Mr. Martin
indicated that a “couple” letters were in support of the expansion.
Id
. Mr. Martin threw the
letters away and did not submit them to the county clerk. 4/7 Tr. at 14-15. Mr. Martin discussed
one letter concerning the Momence Transfer Station with other members of the county board.
4/7 Tr. at 15.
Mr. Martin did receive phone calls concerning the pending siting application at his home.
4/7 Tr. at 12. A majority of the phone calls opposed the application.
Id
. The phone calls were
brief lasting only a couple minutes. 4//7 Tr. at 13. The calls that were opposed to the landfill,
expressed support for Mr. Martin’s vote on the 2002 Application.
Id
.
Ralph Marcotte
Mr. Marcotte voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at
48, 51. Mr. Marcotte supported the 2002 Application, but voted against the 2003 Application on
three of the nine criteria.
Id
. Specifically, Mr. Marcotte voted against the 2003 Application on
criteria (i), (iii), and (vi). 4/7 Tr. at 51.
Mr. Marcotte noticed the picketers outside the meeting on March 17, 2004, carrying signs
with a slogan saying “no Chicago dump.” 4/7 Tr. at 50. Mr. Marcotte did not receive any phone
calls concerning the expansion prior to the March 17, 2004 vote; however he did receive
approximately 55 letters. 4/7 Tr. at 54. Mr. Marcotte threw away the letters. However the
letters were generically addressed to “Kankakee County Board Members” and were in the county
record. 4/7 Tr. at 54-55. Mr. Marcotte conceded he did not compare every letter to the ones in
the record. 4/7 Tr. at 57. Mr. Marcotte was not threatened or intimidated by the letters or
picketers.
Id
.
17
Jim Stauffenberg
Mr. Stauffenberg did not vote on the 2002 Application because he was on vacation. 4/7
Tr. at 62. Mr. Stauffenberg voted against the 2003 Application on three of the nine criteria. 4/7
Tr. at 64. Mr. Stauffenberg voted against criteria (i), (ii), (vi).
Id
. Mr. Stauffenberg attended
some of the hearings on the 2003 Application. 4/7 Tr. at 63.
Mr. Stauffenberg was contacted by Mr. Harrison who pulled into Mr. Stauffenberg’s
parking lot as Mr. Stauffenberg was leaving one afternoon. 4/7 Tr. at 68-69. They spoke
through the window and set a lunch appointment. 4/7 Tr. at 69. Mr. Stauffenberg later asked
someone about Mr. Harrison and was told not to talk to Mr. Harrison about the landfill.
Id
. Mr.
Stauffenberg cancelled the appointment after tracking down a phone number for Mr. Harrison.
Id
. Mr. Harrison did not call Mr. Stauffenberg back.
Id
.
Mr. Stauffenberg received seven or eight letters at his home, which he did not read. 4/7
Tr. at 66-67. Mr. Stauffenberg threw away the letters, which had return addresses in the area of
the landfill. 4/7 Tr. at 67.
Michael LaGesse
Mr. LaGesse voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at 80,
83. Mr. LaGesse supported the 2002 Application; but voted against the 2003 Application on two
of the nine criteria.
Id
. Mr. LaGesse voted against criteria (iii) and (vi). 4/7 Tr. at 83.
Mr. LaGesse received a phone call from Mr. Harrison at Mr. LaGesse’s place of
employment. 4/7 Tr. at 84. Mr. Harrison asked to meet with Mr. LaGesse and indicted that the
State’s Attorney had said the Mr. Harrison could talk to the county board members. 4/7 Tr. at
84-85. Mr. LaGesse assumed, based on the “way he talked,” that Mr. Harrison was opposed to
the landfill expansion. 4/7 Tr. at 85. Mr. LaGesse made an appointment for later the same
afternoon. 4/7 Tr. at 86. Mr. LaGesse discovered before meeting with Mr. Harrison, that Mr.
Harrison had misinformed Mr. LaGesse. 4/7 Tr. at 86-90. Mr. LaGesse discovered the State’s
Attorney had not granted permission to Mr. Harrison to discuss the landfill expansion.
Id
. Mr.
LaGesse cancelled the meeting.
Id
.
Mr. Harrison returned another time to Mr. LaGesse’s place of employment, unannounced
and uninvited. 4/7 Tr. at 91. Mr. LaGesse testified that Mr. Harrison was passing a petition and
gave a copy to Mr. LaGesse who simply passed it back. 4/7 Tr. at 92.
Mr. LaGesse received 10 to 20 letters and read one of those. 4/7 Tr. at 94. The letter
opposed the landfill expansion and the remaining letters were thrown away.
Id
. The one letter
Mr. LaGesse opened was from Karen Mallaney who is a distant relative. 4/7 Tr. at 95.
However, the letter was addressed to the Kankakee county board. 4/7 Tr. at 103.
Mr. LaGesse noted the picketers outside before the March 17, 2004 vote. 4/7 Tr. at 82.
Mr. LaGesse believed there were less than 20 picketers.
Id
. Mr. LaGesse testified that he also
saw lawn signs saying “no dump, no Chicago garbage” in three or four locations.
Id
.
18
Mr. LaGesse was contacted by Doug Flageole at a Knights of Columbus fish fry, prior to
the March 14, 2004 vote. 4/7 Tr. at 95-99. Mr. Flageole lives near the existing facility and Mr.
LaGesse went out to the area.
Id
. Mr. Flageole opposed the expansion.
Id
.
Linda Faber
Ms. Faber voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at 120,
122. Ms. Faber supported the 2002 Application, but voted against the 2003 Application on five
of the nine criteria.
Id
; 4/7 Tr. at 123. Specifically, Ms. Faber voted no on criteria (i), (iii), (v),
(vi), and (viii).
Id
.
Ms. Faber received 15 to 20 letters regarding the landfill expansion; however she only
opened the first one or two. 4/7 Tr. at 128-29. Ms. Faber “got the impression” that the letters
were opposed to the expansion.
Id
. Ms. Faber threw away the letters.
Id
. Ms. Faber noticed the
return addresses and assumed the letters were regarding the landfill.
Id
. Ms. Faber mentioned
the letters to the county clerk’s office and was told the letters were similar to letters being
received by others.
Id
. Ms. Faber was told the letters were already on file, so she just threw
them away. 4/7 Tr. at 134.
Ms. Faber testified that there were 10 to 12 picketers outside on March 17, 2004. 4/7 Tr.
at 122-23. Ms. Faber also testified that she saw lawn signs stating “no dump, no Chicago
garbage” around town. 4/7 Tr. at 130.
Ms. Faber received a phone call at home from a family friend, Mr. Bennoitt, who
mentioned the landfill. 4/7 Tr. at 126-27. Ms. Faber informed Mr. Bennoitt that she could not
discuss the landfill expansion and ended the conversation.
Id
. Before ending the conversation,
Mr. Bennoitt made statements about the expansion, including that the expansion would impact
the quality of life. 4/7 Tr. at 127-28.
Stanley James
Mr. James voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at 149,
153. Mr. James voted against both applications.
Id
. Mr. James attended some of the hearings
on the 2003 Application. 4/7 Tr. at 150.
Mr. James was approached at his office by Mr. Harrison. 4/7 Tr. at 166. Mr. James told
Mr. Harrison “there was nothing I could talk about.”
Id
. Mr. Harrison asked Mr. James what his
position on the expansion was and wrote something in a book. 4/7 Tr. at 165-69. Mr. James did
not feel threatened or intimidated by Mr. Harrison. 4/7 Tr. at 177.
Mr. James received 15 to 20 letters and read every one of them. 4/7 Tr. at 159. Mr.
James’ recollection is that the letters all opposed the landfill.
Id
. Mr. James threw away the
letters because there were preprinted and he assumed everyone got them. 4/7 Tr. at 160-61. Mr.
James received thank you notes after the vote.
Id
.
19
Mr. James received a number of phone calls prior to the March 17, 2004 vote, some
supporting the expansion, some opposed. 4/7 Tr. at 153-55. Mr. James listened to the people
who called and indicated he would take into consideration what they said. 4/7 Tr. at 155-58.
Mr. James saw several picketers on March 17, 2004, with signs. 4/7 Tr. at 152. The
signs were identical to the lawn signs around town, with the slogan “no dump, no Chicago
garbage”.
Id
.
Mr. James had communications about the proposed landfill with Mr. Runyon. 4/7 Tr. at
170-72. Mr. Runyon expressed his opposition to the landfill.
Id
.
Mr. Ron Thompson spoke to Mr. James at a break during one of the hearings. 4/7 Tr. at
161. Mr. Thompson expressed his opposition to the landfill to Mr. James, but Mr. Thompson did
not ask Mr. James to vote against the application.
Id
. Some of Mr. James’ constituents did ask
him to vote against the expansion. 4/7 Tr. at 164.
Culver Vickery
Mr. Vickery voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at
187, 191. Mr. Vickery supported the 2002 Application, but voted against the 2003 Application
on one of the nine criteria.
Id
. Specifically, Mr. Vickery voted not to approve criterion (i). 4/7
Tr. at 191. Mr. Vickery did attend some of the hearings on the 2003 Application. 4/7 Tr. at 188.
Mr. Vickery’s wife passed on a message about a phone call from “Bruce” and Mr.
Vickery assumes that was Mr. Harrison. 4/7 Tr. at 192. Mr. Vickery did not return the call.
Id
.
Mr. Vickery estimates that he received about 25 letters and he opened one or two. 4/7 Tr.
at 193. The opening line indicated opposition to the expansion, so Mr. Vickery kept a file and
turned them over to the county clerk. 4/7 Tr. at 194.
Mr. Vickery noticed picketers on March 17, 2004, carrying signs with the slogan “no
dump, no Chicago garbage”. 4/7 Tr. at 190. Mr. Vickery noticed a similar message on signs
throughout the area.
Id
.
Ruth Barber
Ms. Barber voted on both the 2002 Application and the 2003 Application. 4/7 Tr. at 209,
212. Ms. Barber supported the 2002 Application, but opposed the 2003 Application on three of
the nine criteria.
Id
. Specifically, Ms. Barber voted against the 2003 Application on criteria (i),
(iii), (vi).
Id
.
Mr. Harrison approached Ms. Barber’s office prior to March 17, 2004. 4/7 Tr. at 218.
Ms. Barber escorted Mr. Harrison out of his office, while Mr. Harrison “rambled on” about the
proposed expansion. 4/7 Tr. at 220-21. The encounter was approximately ten minutes long. 4/7
Tr. at 222.
20
Ms. Barber received 30 or 40 letters and she opened the first couple letters. 4/7 Tr. at
214-15. She read a few lines and ascertained who sent the letter and what it was about and threw
away the letters.
Id
. Ms. Barber did not read the letters carefully and she was able to tell by
return addresses that the unopened letters were about the landfill. 4/7 Tr. at 215-16.
Ms. Barber testified that a telephone voice message was left on her home phone. 4/7 Tr.
at 213. Her husband played the message then erased it.
Id
. Ms. Barber’s husband told her about
the message, but no details about the content of the message. 4/7 Tr. at 213-14.
Kelley McLaren
Mr. McLaren did not vote on the 2002 Application as he was on vacation. 4/7 Tr. at 230.
Mr. McLaren opposed the 2003 Application on a single criterion, (vi). 4/7 Tr. at 233-34.
Mr. McLaren was approached by Mr. Harrison while working as a bartender. 4/7 Tr. at
236. Mr. Harrison indicated his opposition to the expansion, but not in great detail. 4/7 Tr. at
236-37. Mr. Harrison commented on Mr. McLaren’s re-election status and indicated that Mr.
Harrison could “work it to where” Mr. McLaren would not have an opponent. 4/7 Tr. at 237.
Mr. McLaren understood Mr. Harrison’s comment to be a threat, but Mr. McLaren was not
threatened; instead he was angered by the comment. 4/7 Tr. at 237, 248.
Mr. Harrison returned to see Mr. McLaren at a later date and showed Mr. McLaren
petitions. 4/7 Tr. at 240-41. Mr. Harrison told Mr. McLaren he hoped to see Mr. McLaren at the
county board meeting.
Id
.
Mr. McLaren noticed both the picketers and the signs in the area. 4/7 Tr. at 233.
Frances P. Jackson
Ms. Jackson is a county board member who opposed the 2003 Application. 4/7 Tr. at
268. Ms. Jackson noticed the picketers on March 17, 2004, and received phone calls and letters
about the expansion. 4/7 Tr. at 268-281.
George Washington Jr.
Mr. Washington voted to approve both the 2002 Application and the 2003 Application.
4/7 Tr. at 301, 304. Mr. Washington attended the hearings on the 2003 Application and is
chairman of the RPC. 4/7 Tr. at 301.
Mr. Harrison attempted to discuss the landfill with Mr. Washington at the county
building, but Mr. Washington declined to discuss the matter with him. 4/7 Tr. at 306-07. Mr.
Washington “got from Mr. Harrison was that there would be active participation in the election
to try and influence whomever voted in support of the landfill.” 4/7 Tr. at 307. Mr. Washington
was not threatened or intimidated by Mr. Harrison’s comments. 4/7 Tr. at 308.
21
Mr. Washington noticed the picketer and saw the yard signs. 4/7 Tr. at 302. Mr.
Washington received letters, which he did not open and turned over to the county clerk. 4/7 Tr.
at 303
Debbie Jane Bates
Ms. Bates was subpoenaed to appear at the hearing. 4/6 Tr. at 80. Ms. Bates is a friend
of Bruce Harrison. 4/6 Tr. at 81. Ms. Bates does not know what Mr. Harrison’s position on the
landfill expansion. 4/6 Tr. at 83. Ms. Bates does not know where Mr. Harrison is located. Tr. at
85. Ms. Bates did attend a meeting about the expansion because she was opposed to the
expansion. 4/6 Tr. at 88-89.
Robert Keller
Mr. Keller became aware of the proposed expansion and received notice of the expansion
for both the 2002 Application and the 2003 Application. 4/6 Tr. at 95-97, 109. Mr. Keller
testified about his relationship with both Mr. Watson and Mr. Harrison. Mr. Keller considers
Mr. Watson a friend and Mr. Watson provided an affidavit to Mr. Keller concerning service of a
prior application for expansion. 4/6 Tr. at 97, 107. Mr. Keller has driven trucks for Mr. Watson
and not received any compensation. 4/6 Tr. at 98-99. Mr. Keller and Mr. Watson speak three to
four times a week. 4/6 Tr. at 101. Mr. Keller and Mr. Watson discussed the service of the 2003
Application and the hearings. 4/6 Tr. at 109-10. Mr. Keller indicated that he knows Mr. Watson
opposes the landfill and Mr. Watson knows he does too.
Id
.
Mr. Harrison moved a trailer on to Mr. Keller’s property and stayed for a period of time.
4/6 Tr. at 110-12. Mr. Keller eventually told Mr. Harrison to move and Mr. Harrison moved the
trailer across the street to Mr. Watson’s property.
Id
; 4/6 Tr. at 130. Mr. Harrison occasionally
used Mr. Keller’s phone and Mr. Keller and Mr. Harrison spoke three to four times a week until
Mr. Harrison moved. 4/6 Tr. at 118-19. Mr. Harrison had been with Mr. Keller when Mr. Keller
assisted Mr. Watson, but Mr. Keller does not know if Mr. Harrison has performed work for Mr.
Watson. 4/6 Tr. at 113. Mr. Keller testified that Mr. Harrison did not discuss his actions and
efforts in opposing the expansion with Mr. Keller. 4/6 Tr. at 116. Mr. Keller did see Mr.
Harrison at the hearings so Mr. Keller was aware Mr. Harrison opposed the expansion. 4/6 Tr. at
112-13.
Mr. Keller testified that within three or four days of the Board hearing he had a
conversation with Mr. Harrison. 4/6 Tr. at 120. Mr. Keller stated that Mr. Harrison believed he
was in danger so he left. 4/6 Tr. at 121. Mr. Keller asserts he too has concerns about his safety.
4/6 Tr. at 124.
Mr. Keller received a list of county board members; however he could not recall if the list
came from Mr. Harrison, Mr. Watson or someone else. 4/6 Tr. at 132-33. Mr. Keller used the
list during the siting process.
Id
. Mr. Keller prepared a letter to send to the county board
members and Mr. Watson proofread the letter. 4/6 Tr. at 133-35. Mr. Keller sent the letter to the
county board members both at home and sent a copy to the County.
Id
; C2743. Mr. Keller also
22
prepared thank you notes for county board members who voted in opposition to the expansion.
4/6 Tr. at 147-48.
Keith Runyon
Mr. Runyon testified that he lives about seven miles upgradient from the proposed
expansion. 4/6 Tr. at 165. He attended the hearings on the 2002 Application and the 2003
Application and first became aware of the potential for a siting application in 2001. 4/6 Tr. at
165-66. Mr. Runyon was informed that he could not participate in the proceeding that began in
2001 to amend the Kankakee County solid waste management plan. 4/6 Tr. at 166-67. The
amendment of the solid waste management plan to allow for a site to accept out-of-county waste
“alarmed” several people, including some county board members and Mr. Runyon. 4/6 Tr. at
168.
Mr. Runyon is a proponent of closed loop gasification and other technologies that are
alternatives to landfilling. 4/6 Tr. at 169-71. Mr. Runyon has talked about closed loop
gasification at public meetings but Mr. Runyon does not recall providing documentation to
county board members. 4/6 Tr. at 172. Mr. Runyon did not have communications with county
board members concerning closed loop gasification or the siting application prior to the
March 17, 2004 vote. 4/6 Tr. at 173-74.
Mr. Runyon knows Mr. Harrison and that he opposes the expansion based on public
hearings. 4/6 Tr. at 176-77. Mr. Runyon did not hear of Mr. Harrison contacting county board
members; however he was aware that Mr. Harrison was circulating petitions and putting up
signs. 4/6 Tr. at 177-81. Mr. Runyon signed the petition that opposed accepting out-of-county
waste. 4/6 Tr. at 183.
John Skimerhorn Jr.
Mr. Skimerhorn is a private investigator hired by Waste Management to serve subpoenas
for depositions and the Board’s hearing on Mr. Harrison. 4/7 Tr. at 199-200. Mr. Skimerhorn
described his attempts to find and serve Mr. Harrison. 4/7 Tr. 200-06. Mr. Skimerhorn was
unable to locate Mr. Harrison.
Id
.
ISSUES
Waste Management presents three issues for the Board’s consideration. Waste
Management asserts that:
1.
The decision by the Board’s hearing officer not to allow questions of the county
board members about their deliberative process was incorrect;
2.
Ex parte
contacts with county board members and actions taken by participants in
the proceeding outside the record rendered the proceedings fundamentally unfair;
23
3.
The County’s decision that criteria (i), (iii), and (vi) of Section 39.2(a) of the Act
(415 ILCS 5/39.2(a) (i), (iii), (vi) (2006)) have not been met is against the
manifest weight of the evidence.
LEGAL BACKGROUND
The following section delineates the specific statutory provisions at issue in this
proceeding and then discusses the legal standards to be applied by the Board when deciding the
issues.
Statutory Provisions
Section 3.330(a) of the Act defines a “pollution control facility” as “any waste storage
site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste
incinerator.” 415 ILCS 5/3.330(a) (2006). Section 3.330(b) defines a new pollution control
facility to include “the area of expansion beyond the boundary of a currently permitted pollution
control facility. 415 ILCS 5/330(b) (2006).
Section 39.2(a) of the Act requires that an applicant seeking approval for siting a
pollution control facility must provide evidence demonstrating that the nine criteria listed in
subsections (i) through (ix) are met. 415 ILCS 5/39.2(a) (2006). The specific criteria at issue in
this proceeding are criteria (i), (iii), and (vi), which provide:
(i)
the facility is necessary to accommodate the waste needs of the area it is
intended to serve;
* * *
(iii)
the facility is located so as to minimize incompatibility with the character
of the surrounding area and to minimize the effect on the value of the
surrounding property;
* * *
(vi)
the traffic patterns to and from the facility are so designed to minimize the
impacts on existing traffic flow. 415 ILCS 5/39.2(a)(i), (iii), (vi) (2006).
Section 40.1(a) of the Act provides:
If the county board . . . refuses to grant or grants with conditions approval under
section 39.2 of this Act, the applicant may, within 35 days after the date on which
the local siting authority disapproved . . . petition for a hearing before the Board
to contest the decision of the county board . . . . In making its orders and
determinations under this Section the Board shall include in its consideration the
written decision and reasons for the decision of the county board or the governing
body of the municipality, the transcribed record of the hearing held pursuant to
subsection (d) of Section 39.2, and 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) (2006).
24
Siting approval is to be granted only if a proposed facility meets all nine of the criteria set
forth in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2006)).
See
Town & Country Utilities,
Inc. v. PCB, 225 Ill. 2d 103, 117, 866 N.E.2d 227, 235 (2007);
see also
Concerned Adjoining
Owners v. PCB, 288 Ill. App. 3d 565, 680 N.E.2d 810 (5th Dist. 1997); Land and Lakes Co. v.
PCB, 319 Ill. App. 3d 41, 48, 743 N.E.2d 188, 194 (3rd Dist. 2000).
Fundamental Fairness
The Board must review the proceedings before the local siting authority to determine if
the proceedings were fundamentally fair. The courts have given the Board some guidance on
this issue. In E & E Hauling v. PCB, 116 Ill. App. 3d 586, 451 N.E.2d 555 (2nd Dist. 1983)
aff’d,
107 Ill.2d 33, 481 N.E.2d 664 (1985), the court indicated that fundamental fairness refers
to the principles of adjudicative due process and a conflict of interest itself could be a
disqualifying factor in a local siting proceeding if the bias violates standards of adjudicative due
process. E & E Hauling, 116 Ill. App. 3d at 596, 451 N.E.2d at 564. Further, in E & E Hauling,
the appellate court found that although citizens before a local decisionmaker are not entitled to a
fair hearing by constitutional guarantees of due process, procedures at the local level must
comport with due process standards of fundamental fairness. The court held that standards of
adjudicative due process must be applied.
See also
Industrial Fuels & Resources v. PCB, 227 Ill.
App. 3d 533, 592 N.E.2d 148 (1st Dist. 1992); Tate v. Macon County Board, 188 Ill. App. 3d
994, 544 N.E.2d 1176 (4th Dist. 1989). Due process requirements are determined by balancing
the weight of the individual’s interest against society’s interest in effective and efficient
governmental operation. Waste Management of Illinois Inc. v. PCB, 175 Ill. App. 3d 1023, 530
N.E.2d 682 (2nd Dist. 1989).
The courts have indicated that the public hearing before the local governing body is the
most critical stage of the site approval process. Land and Lakes Co. v. PCB, 245 Ill. App. 3d
631, 616 N.E.2d 349, 356 (3rd Dist. 1993). The manner in which the hearing is conducted, the
opportunity to be heard, the existence of
ex parte
contacts, prejudgment of adjudicative facts,
and the introduction of evidence are important, but not rigid, elements in assessing fundamental
fairness. Hediger v. D & L Landfill, Inc.
, PCB 90-163 (Dec. 20, 1990). The courts have also
indicated that fundamental fairness must include the opportunity to be heard and impartial
rulings on evidence. Daly v. PCB, 264 Ill. App. 3d 968, 637 N.E.2d 1153, 1155 (1st Dist. 1994).
Legal Standards for Review of Criteria
In reviewing the decision of a local government disapproving siting based on the nine
statutory criteria, the Board must apply the “manifest weight of the evidence” standard of review.
Land and Lakes, 319 Ill. App. 3d at 48, 743 N.E. 2d at 194; Waste Management of Illinois, Inc.
v. PCB, 160 Ill. App. 3d 434, 513 N.E.2d 592 (2nd Dist. 1987); City of Rockford v. PCB, 125
Ill. App. 3d 384, 465 N.E.2d 996 (2nd Dist. 1984). 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. Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Harris v. Day, 115 Ill.
App. 3d 762, 451 N.E.2d 262 (4th Dist. 1983). The province of the hearing body is to weigh the
evidence, resolve conflicts in testimony, and assess the credibility of the witnesses. Merely
25
because the Board could reach a different conclusion, is not sufficient to warrant reversal. City
of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996; Waste Management of Illinois, Inc. v. PCB,
122 Ill. App. 3d 639, 461 N.E.2d 542 (3rd Dist. 1984); Steinberg v. Petta, 139 Ill. App. 3d 503,
487 N.E.2d 1064 (1st Dist. 1985); Willowbrook Motel v. PCB
, 135 Ill. App. 3d 343, 481 N.E.2d
1032 (1st Dist. 1985).
The Board will not disturb a local siting authority’s decision regarding the applicant’s
compliance with the statutory siting criteria unless the decision is contrary to the manifest weight
of the evidence.
See
Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818;
see also
Land and Lakes
, 319 Ill. App. 3d at 53, 743 N.E.2d at 197. “That a different conclusion
may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or
indisputable.” Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818,
quoting Turlek v. PCB, 274 Ill. App. 3d 244, 249, 653 N.E.2d 1288, 1292 (1st Dist. 1995). The
Board may not reweigh the evidence on the siting criteria to substitute its judgment for that of
the local siting authority.
See
Fairview Area Citizens Taskforce v. PCB, 198 Ill. App. 3d 541,
550, 555 N.E.2d 1178, 1184 (3d Dist. 1990); Waste Management of Illinois, Inc. v. PCB, 187 Ill.
App. 3d 79, 81-82, 543 N.E.2d 505, 507 (2d Dist. 1989); Tate v. PCB, 188 Ill. App. 3d 994,
1022, 544 N.E.2d 1176, 1195 (4th Dist. 1989). “[T]he manifest weight of the evidence standard
is to be applied to each and every criteria on review.”
See
Concerned Adjoining Owners, 288 Ill.
App. 3d at 576, 680 N.E.2d at 818.
It is for the local siting authority to weigh the evidence, assess witness credibility, and
resolve conflicts in the evidence.
See
Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680
N.E.2d at 818;
see also
Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Fairview, 198
Ill. App. 3d at 550, 555 N.E.2d at 1184; Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195.
Where there is conflicting evidence, the Board is not free to reverse merely because the local
siting authority credits one group of witnesses and does not credit the other.
See
Waste
Management, 187 Ill. App. 3d at 82, 543 N.E.2d at 507. “[M]erely because the [local siting
authority] could have drawn different inferences and conclusions from conflicting testimony is
not a basis for this Board to reverse the [local siting authority’s] finding.” File v. D & L
Landfill, Inc., 219 Ill. App. 3d 897, 905-906, 579 N.E.2d 1228, 1235 (5th Dist. 1991).
DISCUSSION
The Board’s discussion will begin by addressing Waste Management’s allegation that the
Board’s hearing officer erred in not allowing Waste Management to question the decision
making process of the County. Next, the Board will discuss whether the proceedings were
fundamentally fair. Then, the Board will discuss whether the County’s decision was against the
manifest weight of the evidence.
Decision Making Process
The Board will summarize the opening arguments by Waste Management and then the
arguments by the County and conclude with Waste Management’s reply on this issue. There
were no arguments made in the
amici
briefs on this issue. The Board will conclude this section
with an analysis and findings by the Board.
26
Waste Management
Waste Management asserts that eight county board members who voted to approve the
2002 Application voted to deny the 2003 Application and did not explain their votes. WMI Br.
at 27. Waste Management sought to discover reasons for this change by some members of the
county board and the County opposed this discovery.
Id
. The County opposed this discovery on
the grounds that Waste Management was seeking to invade the mental processes of the decision
maker.
Id
. Waste Management argues that the inquiry is appropriate here as there are no factual
findings to explain the decision.
Id
. Waste Management cites Citizens to Preserve Overton
Park, Inc. v. Volpe, 41 U.S. 402, 420 (1971) to support this proposition.
Id
.
Waste Management maintains that the Board’s hearing officer’s ruling to deny Waste
Management’s motion to compel and precluding Waste Management from pursuing the line
questioning was erroneous. WMI Br. at 28. Waste Management relies on City of Rockford v.
Winnebago County, PCB 87-92 (Nov. 19, 1987) and argues that the hearing officer’s rulings
prevented a determination whether the March 17, 2004 decision was proper.
Id
. Waste
Management placed on the record at hearing the questions Waste Management would ask each
of the eight county board members as an offer of proof.
See
4/6 Tr. at 65-73. However, those
questions were not answered by any of the testifiers.
Waste Management argues that because the County objected to providing a basis for the
March 17, 2004 decision and in the absence of competent evidence to support the decision, “one
may reasonably conclude” that the County’s decision was affected by the
ex parte
contacts of
Mr. Harrison and others. 4/6 Tr. at 65-73.
County
The County maintains that the Board’s hearing officer properly denied the motion by
Waste Management to inquire into the deliberative process of the County. C. Br. at 50. The
County asserts that the County properly examined and voted on each and every one of the
Section 39.2 criteria.
Id
. The County argues that before an inquiry into the decisionmaker’s
mental process would be allowed the applicant must “present a strong showing of bad faith or
improper behavior.” C. Br. at 50, citing Land and Lakes v. Village of Romeoville
, PCB 92-25
(June 4, 1992). Thus, the County claims that Waste Management’s argument is misplaced that
the hearing officer’s decision prevented a determination of whether the decision was properly
made and fundamentally fair.
Id
.
Waste Management’s Reply
Waste Management argues that county board members were allowed to answer questions
by the County’s attorneys about the decision in connection with the 2003 Application but were
not allowed to answer the questions by Waste Management. Reply at 10. Waste Management
argues that the hearing officer’s ruling was incorrect and prevented a determination on whether
the decision was properly made. Reply at 10, citing Rockford, PCB 87-92. Waste Management
asserts that the record is completely devoid of any competent evidence to support the denial of
27
siting on criteria (i), (iii), and (vi) and these were the criteria on which Mr. Harrison focused his
ex parte
comments. Reply at 10. Waste Management maintains that under the facts of this
proceeding, allowing access to the mental process of the decisionmaker was appropriate.
Id
.
Board Analysis and Findings
On appeal of a county’s decision to grant or deny a siting application, the Board is
generally confined to the record developed by the county. 415 ILCS 5/40.1(a) (2006). However,
the Board will hear new evidence relevant to the fundamental fairness of the proceedings where
such evidence lies outside the record. Land and Lakes Co. v. PCB, 319 Ill. App. 3d at 48, 743
N.E.2d at 194. The Board has previously held that the integrity of the decision making process
requires that the mental processes of the decisionmakers be safeguarded, and that a strong
showing of bad faith or improper behavior is required before any inquiry into the decision
making process can be made. Rochelle Waste Disposal L.L.C. v. City Council of the City of
Rochelle, Illinois, PCB 03-218 (Apr. 15, 2004). Public officials, however, should be considered
to act without bias. E & E Hauling, 107 Ill 2d at 42, 481 N.E.2d at 688. The presumption of the
impartiality of the actions of a public official will be overcome only where it is shown by clear
and convincing evidence that the official has an unalterably closed mind in critical matters.
See
A.R.F. Landfill, Inc. v. Lake County, PCB 87-51 (Oct. 1, 1987).
The Board has reviewed the hearing officer’s order and the arguments presented in this
proceeding. The Board has consistently held that decisionmakers are entitled to protection of
their internal thought processes in their adjudicative roles. DiMaggio v. Solid Waste Agency of
Northern Illinois, PCB 89-138 (Oct. 27, 1989). The Board is convinced that the hearing officer’s
ruling was correct. Waste Management has provided testimony to indicate that there were
ex
parte
contacts in this proceeding and that at least one opponent to expansion was forceful and
persistent in his attempts to generate
ex parte
contacts. The record is also clear that the county
board members generally tried to limit those
ex parte
contacts when it became apparent that the
subject of the discussion would be the proposed landfill expansion. However, nothing in this
record, either now or when the hearing officer ruled, constitutes a showing of bad faith or
improper behavior strong enough to allow the invasion of the decision making deliberative
process in this case. Therefore, the Board affirms the hearing officer’s order and finds that
Waste Management was properly denied the opportunity to inquire into the decisionmakers
thought processes.
Fundamental Fairness
The Board will first summarize the opening arguments by Waste Management and the
County on the fundamental fairness issue. Then, the Board will delineate the arguments made in
the
amici
brief. Next, the Board will summarize Waste Management’s reply. Finally, the Board
will conclude this section with analysis and findings by the Board.
Waste Management
Waste Management asserts that the County denied the 2003 Application because the
proceedings before the County were tainted by improper
ex parte
communications between Mr.
28
Harrison and county board members. WMI Br. at 37. Waste Management maintains that Mr.
Harrison and other opponents to the expansion initiated
ex parte
communications with county
board members urging the county board members to deny the application.
Id
. Waste
Management claims that the opponents communicated three specific concerns to county board
members.
Id
. Those three concerns were: 1) Kankakee County did not need a landfill for
Chicago’s waste; 2) the expansion would contaminate the environment and depress property
values; and 3) the additional truck traffic bringing Chicago waste would create congestion and
increase the risk of accidents.
Id
. Waste Management argues that these concerns relate directly
to the three criteria on which the County voted to deny siting.
Id
.
Waste Management argues that reversal of a local siting decision is required where
fundamental fairness has tainted the outcome. WMI Br. at 37, citing E & E Hauling 116 Ill.
App. 3d at 598, 606, 451 N.E.2d at 566, 571. Waste Management asserts that a proceeding is
fundamentally unfair if a disinterested observer might conclude that the decisionmaker had made
a decision based on matters outside the record or where
ex parte
contacts have influenced a
decision. WMI Br. at 37, citing Concerned Adjoining Owners 288 Ill. App. 3d at 573, 680
N.E.2d at 816; and Fairview Area Citizens Task Force, 198 Ill. App. 3d 541, 555 N.E. 2d 1178.
Waste Management argues that the standard is an objective one and asks whether a
disinterested observer can conclude that unfairness or the appearance of impropriety tainted the
process. WMI Br. at 37-38 (citations omitted). Furthermore, Waste Management points out that
the appearance of impropriety may be inherently unfair because of the possibilities of actual
prejudice. WMI Br. at 38, citing Southwest Energy Corporation v. PCB, 275 Ill. App. 3d 84, 96,
655 N.E.2d 304 (4th Dist. 1995). Waste Management asserts that the siting process requires
both the facts and the appearance of improper influence be proscribed because the actual or
potential prejudice caused by either taints the process.
Id
.
Waste Management asserts that the
ex parte
advocacy of Mr. Harrison was intended to
“persuade, threaten, and cajole” county board members into voting against the 2003 Application.
WMI Br. at 38. Waste Management maintains that the contacts were improper attempts to
secure the vote of a decisionmaker on a pending adjudicative matter by “wielding threat and
bombast in face-to-face unannounced meetings.”
Id
. Waste Management claims the advocacy
included lies, misrepresentations, misinformation and threats, outside the hearing process and the
sole purpose was to obtain a vote to deny siting.
Id
.
Waste Management argues that eight county board members who supported the 2002
Application did not support the 2003 Application a mere one-year later. WMI Br. at 38. Waste
Management asserts that the 2003 Application was for the same facility, same location and the
information on the nine criteria was the same.
Id
. The only difference between the two
applications was the advocacy by Mr. Harrison, according to Waste Management.
Id
.
Waste Management notes that the advocacy was also directed to county board members
who did not vote on the first application. WMI Br. at 38. Waste Management opines that this
advocacy was particularly effective as the new county board members voted to deny siting on the
criteria argued by Mr. Harrison. WMI Br. at 38-39.
29
Waste Management maintains that by any objective standard, the actions of Mr. Harrison
were improper and prejudicial and at a minimum created an appearance of impropriety. WMI
Br. at 39. Waste Management asserts that in addition his actions had a direct effect as county
board members with no evidence reversed their positions on expansion.
Id
. Waste Management
argues these actions tainted the process and caused actual prejudice resulting in a fundamentally
unfair proceeding.
Id
.
County
The County argues that the proceedings were fundamentally fair and that there is a
presumption that county board members engaged in landfill siting hearings are objective and
capable of fairly judging the controversy. C. Br. at 34, citing Waste Management, 175 Ill. App.
3d at 1040, 530 N.E.2d at 695. The County maintains that the presumption may only be
overcome if a disinterested observer could find some prejudgment.
Id
. The County asserts that
ex parte
contacts alone do not require reversal; rather, the complaining party must show that the
ex parte
contacts caused harm. C. Br. at 34, citing Residents Against a Polluted Environment v.
County of LaSalle, PCB 96-243 (Sept. 19, 1996). The County argues that a decision will only be
reversed due to
ex parte
contacts if the contacts “irrevocably tainted so as to make the ultimate
judgment of the agency unfair, either to an innocent party or the public interest that the agency
was obliged to protect.” C. Br. at 34-35, citing E & E Hauling, 116 Ill. App. 3d at 606, 451
N.E.2d at 571.
The County notes that to determine if the
ex parte
contacts warrant reversal, the Board
should consider:
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 benefited from the
agency’s ultimate decision;
4.
whether the contents of the communications were unknown to the
opposing parties, who therefore had no opportunity to respond; and
5.
whether vacation of the agency’s decision and remand for new
proceedings would serve a useful purpose. C. Br. at 35, citing E & E
Hauling, 116 Ill. App. 3d at 607, 541 N.E.2d at 571.
Gravity of Communications.
The County argues that the
ex parte
communications in
this case were nonsubstantive contacts consisting of members of the public expressing opinions
about the expansion to county board members. C. Br. at 35. The County notes that the Board
has previously ruled that nonsubstantive contacts are not grave, citing Gallatin National Bank v.
Fulton County, PCB 91-256 (June 15, 1992).
Id
. The County asserts that Waste Management
has failed to demonstrate that Waste Management was prejudiced by the contacts because the
contacts were nonsubstantive. C. Br. at 36. The County argues that the
ex parte
contacts
30
consisted of members of the public and in particular Mr. Harrison expressing opinions but not
discussing the substance or merits of the application.
Id
. The County relies on the county board
members’ testimony that they did not consider anything said as evidence. C. Br. at 34, citing 4/6
Tr. at 74, 322; 4/7 Tr. at 178.
The County argues that Waste Management exaggerates the contacts the county board
members had with Mr. Harrison and claims that they had little to no contact with Mr. Harrison.
C. Br. at 36. Furthermore, the County maintains that the county board members did not initiate
the contacts with Mr. Harrison and advised him that the county board members could not speak
about the expansion. C. Br. at 37. The County asserts that based on the testimony, the
ex parte
communications do not warrant reversal; and that Waste Management “greatly overestimates”
the nature of Mr. Harrison’s contacts to justify Waste Management’s position. C. Br. at 38.
The County argues that the county board members unanimously agreed that they were
not threatened or intimidated by Mr. Harrison. C. Br. at 38, citing 4/6 Tr. at 79, 253-54, 269-70,
295-96; 4/7 Tr. at 105, 177, 246-48. The County points out that in Land and Lakes Co. v.
Randolph County Board of Commissioners, PCB 99-69 (Sept. 21, 2000), the
ex parte
contacts
were much more egregious than the contacts in this proceeding. C. Br. at 38. The County notes
that in that case the county board chairman was subjected to numerous “pranks” that included
tires being flattened on construction equipment, receiving packages of what appeared to be
garbage and having food, flower, and furniture orders placed in his or his wife’s names.
Id
. In
that case, the County notes the Board found that the contacts did not warrant reversal.
Id
.
Influence on Ultimate Decision.
The County concedes that through the motion in
limine, the county board members were not able to discuss what factor influenced their votes;
however, their testimony reveals that Mr. Harrison did not influence the county board members.
C. Br. at 40. The County argues that the county board members unanimously testified that they
were not intimidated or threatened by Mr. Harrison and they did not consider anything he said as
evidence.
Id
. Based on this testimony, the County asserts that Waste Management’s claim that
the county board members were threatened into voting against the 2003 Application is “wholly
untrue and must be disregarded.”
Id
.
The County maintains that Waste Management’s argument that county board members
who supported the 2002 Application and then did not support the 2003 Application were
influenced by Mr. Harrison is not supported by the facts. C. Br. at 41. However, of the eight
members who changed their votes, four denied having any contact with Mr. Harrison, according
to the County. C. Br. at 41, citing 4/7 Tr. at 53-54, 126-28, 191, 280. Furthermore, the County
argues several county board members contacted by Mr. Harrison supported the siting application.
C. Br. at 41.
The County takes issue with Waste Management’s argument that the 2002 Application
and 2003 Application were nearly identical and that the only significant difference were the
contacts by Mr. Harrison. C. Br. at 41. The County argues that the 2002 Application and 2003
Application were different and the testimony and evidence presented at the siting hearing was
also different.
Id
. The County claims that Waste Management admitted differences existed and
several witnesses for Waste Management updated materials for the 2003 Application.
Id
. The
31
County maintains that because the two applications were different, the decision of the County
was reasonable. C. Br. at 42.
The County maintains that even if the 2002 Application and the 2003 Application were
completely identical, that does not establish that the County’s decision was against the manifest
weight of the evidence. C. Br. at 42. The County argues that the courts have repeatedly stated
that the public hearing is the most critical stage of the siting process. C. Br. at 42, citing Land
and Lakes, 245 Ill. App. 3d at 642, 616 N.E.2d at 356; McLean County Disposal v. County of
McLean, 207 Ill. App. 3d 477, 480, 566 N.E.2d 26, 28 (4th Dist. 1991); Kane County Defenders,
Inc. v. PCB, 139 Ill. App. 3d 588, 593, 487 N.E.2d 743, 746 (2nd Dist. 1985). The County
asserts that one county board member specifically indicated that he believed there was new
information at the hearing. C. Br. at 42.
The County argues that the evidence and the testimony at the siting hearing on the 2003
Application was not the same as the information presented during the hearings on the 2002
Application. C. Br. at 43. As a result the County properly relied on information provided at the
hearing, which included new and additional testimony.
Id
. The County points out that Mr.
Coulter did not testify on the 2002 Application and additional public comment was filed.
Id
.
The County claims that the circumstances in Kankakee had changed “drastically” between the
filing of the two applications.
Id
. The County relies on the fact that the City of Kankakee had
already approved another applicant’s landfill siting application when the County voted on the
2003 Application. C. Br. at 43-44. Thus, the County maintains that the finding that there was no
longer a need for a landfill is more than reasonable. C. Br. at 44.
The County argues that, even if the two applications were identical and the hearings were
substantially the same, Waste Management has failed to establish that Mr. Harrison’s activities
influenced the county board members to vote against the 2003 Application so as to render the
proceedings fundamentally unfair. C. Br. at 44. The County relies on three Board cases to
support this argument, Moore v. Wayne County Board, PCB 86-197 (June 2, 1986), Land and
Lakes, PCB 92-25 and DiMaggio v. Solid Waste Agency of Northern Cook County, PCB 89-138
(Oct. 27, 1989).
Id
. The County maintains that in Moore
, the Board indicated that the mere
changing of one’s vote is not evidence of an improper decision.
Id
. The County argues that
there is even less reason in this proceeding to find fundamental unfairness because there was a
new and different application under consideration. C. Br. at 45.
The County notes that in Land and Lakes, the Board again determined that a
decisionmaker changing his or her mind does not establish that the proceeding was
fundamentally unfair. C. Br. at 45. And in DiMaggio
, the County asserts that the Board refused
to find the proceedings fundamentally unfair when there was a strong inference of
ex parte
contacts and the vote changed.
Id
.
Benefits to “Party” Making Contacts.
The County argues that because the contacts did
not influence the county board members, the
ex parte
contacts did not benefit anyone. C. Br. at
46. The County claims that the contacts were not made by a “party” to the proceeding; rather,
the communications were unsolicited and made by various members of the general public.
Id
.
The County asserts that the contacts are exactly those types, which Illinois courts have
32
acknowledged are inevitable given the perceived legislative positions of the county board
members. C. Br. at 46, citing Waste Management, 175 Ill. App. 3d at 1043, 530 N.E.2d at 697.
The County maintains since there is no evidence of any benefit to any “party”, this factor should
be weighed in favor of the County. C. Br. at 46.
The County claims that Waste Management “asserts” a Harrison-Watson-Keller
connection in an attempt to allege that a party benefited from the
ex parte
contacts. C. Br. at 47.
The County maintains that Waste Management repeatedly misstates Mr. Keller’s testimony at
the hearing before the Board.
Id
. The County concedes that Mr. Keller admits there is a
friendship between the three men; however, Mr. Keller never indicated that he was in
“continuous communication” with either Mr. Watson or Mr. Harrison.
Id
. The County also
claims that, contrary to Waste Management’s characterization, Mr. Keller never testified that he
worked together with Mr. Watson and Mr. Harrison in opposition to the expansion.
Id
. The
County also points out that Mr. Keller did not know of Mr. Harrison’s contact with county board
members, that he did not know where he got his yard sign, and finally, that Mr. Keller did not
testify that the three men appeared together at the county board siting hearing.
Id
.
The County argues that whether Mr. Harrison is somehow “affiliated” with a party, there
is no evidence that an attempted communication by Mr. Harrison benefited any party. C. Br. at
47. Therefore, the County maintains that the proceedings were fundamentally fair.
Id
.
Waste Management was aware of contacts.
The County states that in determining if
the applicant has been prejudiced by
ex parte
communications the courts are particularly
concerned with whether or not the applicant had notice of the communications. C. Br. at 48,
citing Rockford, PCB 87-92. The County argues that in this case, the letters were made a part of
the record as public comments and encompasses over 600 pages of the record. C. Br. at 48,
citing C2618-2807, 3408-3721, 3277-3384. The County asserts that the comments made by Mr.
Harrison and other members of the public were known by Waste Management because the
county board members testified that the comments from Mr. Harrison were no different than
those being heard at the public hearings. C. Br. at 48. The County maintains that as a result,
Waste Management had plenty of opportunity to respond.
Id
.
No need to vacate and remand.
The County argues that remand would serve no useful
purpose because the
ex parte
comments were placed in the record and are no longer
ex parte
but
rather public comment. C. Br. at 48. Furthermore, the County maintains that Waste
Management has shown no prejudice and therefore reversing and remanding would be neither
appropriate nor productive. C. Br. at 48-49. Also, the County argues that there has been no
alleged wrongdoing by any member of the county board; rather, all the alleged contacts were
unsolicited and when approached the county board members refused to discuss the application.
C. Br. at 49.
Watson
Watson asserts that Waste Management makes claims of conspiracies, perjury and
intimidation that never occurred in this proceeding. W.Br. at 21. Specifically, Watson maintains
that Waste Management alludes to a conspiracy between Watson, Keller, and Harrison; however
33
there is no evidence in the record of such a conspiracy.
Id
. Watson claims that even if there had
been a conspiracy, there is nothing illegal in three people joining in opposition to a landfill.
Id
.
Watson asserts the record does not support Waste Management’s claim that the three men were
continually in contact and there is no evidence in the record that Mr. Watson and Mr. Harrison
ever communicated about the expansion. W.Br. at 21-22. Finally, Watson claims that the
contacts were not even
ex parte
contacts as they were made a part of the record.
Id
.
Karlock
Karlock argues that no county board member admitted being improperly influenced by
the
ex parte
contacts, and the arguments of Waste Management are undermined by Waste
Management’s misconception regarding the significance of the County’s approval of siting under
the 2002 Application. K.Br. at 7. Karlock asserts that Waste Management’s arguments rely on
the prior approval and the similarities of the two applications. K.Br. at 7-8. However, Karlock
maintains that the fundamental fairness and manifest weight of the evidence issues were never
addressed under the 2002 Application. K.Br. at 8, citing PCB 03-125. Therefore, Karlock
argues the fundamental fairness arguments issues raised in this case cannot be buttressed by the
prior County approval.
Id
.
Karlock argues that Waste Management must show actual prejudice by the
ex parte
contacts and the decisionmaker can also deny an application based on legislative type
considerations. K.Br. at 9, citing Southwest Energy, 275 Ill. App. 3d 84, 655 N.E.2d 304.
Karlock asserts that there were differences in the two applications including different witnesses
and testimony at the hearing. K.Br. at 10.
Runyon
Runyon argues that the proceedings were fundamentally fair. Runyon maintains that
most county board members did not even speak with Mr. Harrison and those members that did
testified that Mr. Harrison did not influence their vote. RBr. at 1. Runyon also argues that
Waste Management would have this Board believe that Mr. Harrison’s comments were more
persuasive than all of Waste Management’s experts.
Id
. Runyon claims that Waste Management
also communicated with the certain county board members outside the record of the proceedings.
R.Br. at 1-2. Runyon also relies on Land and Lakes
, PCB 99-69 in support his argument. R.Br.
at 6. Runyon points to several places in the record where the county board members testified
that they were not influenced by the letters, signs and contacts with the public. R.Br. at 3-28.
Waste Management’s Reply
In the reply, Waste Management reiterates that the only difference between the 2002
Application and the 2003 Application “was the onslaught of threats, harassment and argument”
by Mr. Harrison. Reply at 1. Waste Management argues that despite the best efforts of county
board members to avoid or rebuff Mr. Harrison the county board members were subject to
harassment, political threats and false claims about the impropriety of
ex parte
communications.
Reply at 2. Waste Management claims that the evidence demonstrates that some county board
members changed their votes as a result of Mr. Harrison’s tactics.
Id
. Waste Management
34
asserts that in the circumstances of this case, the proceedings were fundamentally unfair because
the nature and extent of the
ex parte
contacts created “the unavailing appearance of impropriety.”
Id
.
Similar Applications.
Waste Management maintains that the county does not deny the
two applications were identical in all material respects and there is no question that the 2003
Application contained updated information on criteria (i), (iii), and (vi) and new information
relating to prefiling notice. Reply at 3. Waste Management asserts that the methodology and
analysis for all nine criteria was the same and the updated information did not contradict or
undermine the conclusions that the criteria were met.
Id
. Waste Management claims that the
additional information was not new evidence that rebutted or disproved the conclusions of the
2002 Application.
Id
.
Multitude of Improper Contacts and E& E Hauling.
Waste Management asserts that
the law is clear, where
ex parte
contacts have tainted the outcome, either by actual or potential
prejudice, the proceedings are rendered fundamentally unfair. Reply at 3. Waste Management
maintains that the County’s claims that the contacts were not grave is incorrect as Mr. Harrison
engaged in serious and strategic
ex parte
advocacy. Reply at 4. Waste Management argues that
Mr. Harrison made repeated attempts to secure or influence decisionmakers by means of threats
and harassment, and the short-term nature of the contacts does not determine the gravity of the
comments.
Id
. Waste Management opines that the content of the communication should
dominate a determination on the gravity of the contacts and the method of contact. Reply at 4-5.
Both the content and the method establish these contacts as grave, argues Waste Management.
Id
.
Waste Management maintains that the County, rather than focusing on the content and
manner of the comments, focuses on the fact that the comments were unsolicited. Reply at 5.
Waste Management acknowledges that the comments were unsolicited; nevertheless, the
contacts were repeated and contained sufficient information to have influenced the vote in an
adjudicative matter.
Id
. Furthermore, Waste Management argues that the County’s reliance on
several past cases is misplaced, as the facts in this proceeding are not analogous.
Id
.
Waste Management argues that the County misstates the second factor from E & E
Hauling and the correct analysis is whether the
ex parte
contacts
may
have influenced the
ultimate decision. Reply at 6. Waste Management claims the County argues that the contacts
did not influence the decision.
Id
. Waste Management asserts that it is clear that the E & E
Hauling court intended the analysis to consider the
possibility
of influence rather than the
fact
of
influence.
Id
. Waste Management argues that this is significant given the applicant’s inability to
probe the minds of the decisionmaker.
Id
. In this case, Waste Management claims there is
indirect evidence that the
ex parte
contacts influenced the ultimate decision.
Id
. According to
Waste Management, the evidence is the fact that given the similarities in the two applications,
the County voted to disapprove the expansion on exactly the criteria that Mr. Harrison advocated
for disapproval in his contacts with county board members. Reply at 6-7.
Waste Management argues that the there is no question that the party making the
improper contacts benefited from the ultimate decision. Reply at 7. Waste Management notes
35
that the County argues that Mr. Harrison is not a party and thus a party could not have benefited
from the contacts.
Id
. Waste Management asserts that such a view of “party” is incorrect and
the benefited party need not have an appearance in the proceeding. Reply at 7-8. Waste
Management asserts that clearly Mr. Harrison participated in the hearings and the Board has
found that a nonparty can make an
ex parte
contact. Reply at 8, citing Land and Lakes, PCB 99-
69. Therefore, Waste Management argues that to limit the remedy only to those who file an
appearance is illogical.
Id
.
Waste Management claims that Waste Management had no knowledge of Mr. Harrison’s
actions and communications during the pendency of the 2003 Application. Reply at 8.
Furthermore, Waste Management maintains that not all communications were made a part of the
record.
Id
. As a result, Waste Management asserts that Waste Management could not respond to
the comments. Reply at 8-9.
Waste Management asserts that the Board should reverse and remand not just because
Waste Management is entitled to a fundamentally fair proceeding but doing so would place
landfill opponents on notice that there is a limit to how far one can go in opposition to siting.
Reply at 9. Waste Management argues that before this case there was no precedent for conduct
such as Mr. Harrison’s and if the Board affirms the denial there is nothing to stop opponents
from such behavior in the future.
Id
. Waste Management argues that by any objective standard,
Mr. Harrison’s actions were improper and prejudicial and at a minimum created an appearance
of impropriety.
Id
.
Board Analysis and Findings
The first step in our discussion is to determine whether the contacts that occurred in this
proceeding were
ex parte
contacts. If the answer is yes, then the Board must decide if Waste
Management was prejudiced by those contacts. If the contacts are not
ex parte
then the Board
need not examine the issue of prejudice. In this proceeding the alleged improper contacts fall
into three categories. The first category is the letters received by county board members. The
second is the picketers at the county board meeting on March 17, 2004, and the yard signs
throughout Kankakee County. The third is the oral comments made to county board members
and particularly those by Mr. Harrison. The Board will discuss each of these in turn below.
Letters.
Several county board members received letters concerning the proposed
expansion. However, the testimony and the record establish that the content of those letters, and
in some cases the actual letters were placed in the County record. Furthermore only one county
board member read all the letters and failed to file them with the county clerk. Many of the
county board members glanced at the letters, realized what the letters were about and stopped
reading. Further, many of the letters were generically addressed to “Kankakee County Board
Members” and appeared to be form letters. Therefore, the Board agrees with the arguments by
the parties that the letters are not
ex parte
and the Board will not consider the letters in the
Board’s review of fundamental fairness.
Even if the letters were
ex parte
contacts, the Board finds that these types of letters are
merely expressions of public sentiment to county board members on the issue of Waste
36
Management’s landfill application. Waste Management, 175 Ill. App. 3d at 1041, 530 N.E.2d at
697-698, citing Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592. As the courts have
previously stated,
ex parte
communications from the public to their elected representatives are
perhaps inevitable given a county board member’s perceived legislative position, albeit in these
circumstances, they act in an adjudicative role as well. Thus, although personal
ex parte
communications to county board members in their adjudicative role are improper, there must be
a showing that the complaining party suffered prejudice from these contacts. Waste
Management, 175 Ill. App. 3d at 1041, 530 N.E.2d at 697-698, citing E & E Hauling, 116 Ill.
App. 3d at 607, 451 N.E.3d at 571. In this case, the Board finds that even if the letters were
ex
parte
contacts, the letters did not prejudice Waste Management.
Picketers and Lawn Signs.
The Board agrees that by definition, the signs carried by
those picketing the March 17, 2004 meeting and the lawn signs displayed in the community are
ex parte
. However, like the letters discussed above, yard signs are a common form of
communication used by constituents to express personal views to a county board member, so
there must be a showing of prejudice. Waste Management, 175 Ill. App. 3d at 1041, 530 N.E.2d
at 697-698, citing Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592. The Board can
find no prejudice to Waste Management in this instance. The signs and pickets were not
commenting on the substance of the application, but were an open display of public sentiment.
Waste Management was or should have been aware of the pickets and lawn signs. Therefore, the
Board finds that the presence of the picketers and the lawn signs did not render the proceedings
fundamentally unfair.
Oral Comments to County Board Members.
As indicated above, the first step in this
inquiry is whether the oral comments to county board members by Mr. Harrison and others are in
fact
ex parte
contacts. The Board finds that the comments were
ex parte
contacts as they
occurred outside the record. The law is well settled in siting proceedings, contacts between
nonparties with board members can be
ex parte
communications. Waste Management, 175 Ill.
App. 3d at 1041, 530 N.E.2d at 697-698, citing E & E Hauling, 116 Ill. App. 3d 606-07, 451
N.E.3d at 571; Fairview Area Citizens Taskforce, 198 Ill. App. 3d 541, 555 N.E.2d 1178;
Citizens Opposed to Additional Landfills and Harvey Pitt v. Greater Egypt Regional
Environmental Complex, PCB 97-29 (Dec. 5, 1996); and Residents Against a Polluted
Environment, PCB 96-243. Therefore, the Board next examines the factors delineated in E & E
Hauling to determine if the
ex parte
contacts resulted in a fundamentally unfair proceeding.
Gravity of Communications.
Waste Management characterizes the contact by Mr.
Harrison as intended to “persuade, threaten, and cajole” the county board members into voting
against the 2003 Application. WMI Br. at 38. By contrast, the County characterizes the
comments as nonsubstantive opinions about the expansion made by members of the public. C.
Br. at 35.
The record reflects that Mr. Harrison contacted several county board members; however
he did not contact all the county board members whose votes changed on the two application.
Mr. Harrison’s comments ranged from congenial to veiled threats about elections. However,
testimony by the county board members establishes that except for one or two members, Mr.
Harrison only contacted the county board member once and those encounters were brief. The
37
county board members testified that they did not consider the outside comments to be evidence
and that they were neither threatened nor intimidated by the contacts. None of the county board
members testified that there was a substantive discussion with Mr. Harrison or the other
members of the public during the pendancy of the expansion application. Therefore, although
inappropriate, the Board finds that the contacts were not of sufficient gravity to warrant a finding
of fundamental unfairness. The Board notes that this ruling is consistent with prior
determinations by the Board that even “pranks” perpetrated on county board members do not
render the proceedings fundamentally unfair.
See
Land and Lakes, PCB 99-69 and Daly, 264 Ill.
App. 3d 968, 637 N.E.2d 1153.
Influence Ultimate Decision.
Waste Management argues that the contacts clearly
influenced the outcome as the County voted to deny the application for expansion, which was
substantially similar to the prior application, on precisely the criteria advocated by Mr. Harrison.
Reply at 3. Waste Management also reiterates the argument that Waste Management should
have been allowed to inquire into the county board members’ thought process, especially as the
County was able to ask questions. The County argues that the contacts did not influence the
county board members and the county board members can change their minds without rendering
the proceeding fundamentally unfair. C. Br. at 40, 44.
Board Analysis.
To determine if the ultimate decision was influenced by
ex parte
contacts, the Board will examine several factors. First, the Board will examine the argument that
the 2002 Application and 2003 Application were substantially similar. The Board agrees with
Waste Management and finds that the 2002 Application was substantially similar, although not
identical, to the 2003 Application. However, the courts have held, and the Board agrees, that the
public hearing before the local governing body is the most critical stage of the site approval
process. Rochelle, PCB 03-218, citing Land and Lakes, 245 Ill. App. 3d at 642, 616 N.E.2d at
356. The hearing held before the County on the 2003 Application included cross-examination of
witnesses presented by Waste Management as well as testimony that was not a part of the 2002
Application. Therefore, the Board finds that the two applications may have been substantially
similar, but the overall proceedings included significant differences. Thus, the fact that some
county board members changed their votes on the two applications does not establish that the
ex
parte
contacts influenced the County’s decision.
The next factor the Board will examine is the contacts themselves. As indicated
previously, the contacts by Mr. Harrison were limited and generally the county board members
discouraged his discussion of the expansion. Very few of the encounters lasted more than a
minute and some of those that were longer included discussions of other matters. The county
board members testified that they did not consider the outside comments to be evidence and that
they were neither threatened nor intimidated by the contacts. None of the county board members
testified that there was a substantive discussion with Mr. Harrison or the other members of the
public during the pendancy of the expansion application. Therefore, the Board finds that the
actual content of the contacts also does not establish that the county board members were
influenced by the contacts.
The final factor is the eight county board members who changed their votes. First the
Board notes that the Board has previously found that a decisionmaker changing votes does not
38
render the proceedings fundamentally unfair.
See
Moore, PCB 86-197; Land and Lakes, PCB
92-25; and DiMaggio, PCB 89-138. The Board also finds significant the fact that four of the
eight county board members testified that they did not have contact with Mr. Harrison before the
March 17, 2004 vote on Waste Management’s application, and only one of that four testified to
any contact after the vote. Thus, the record establishes that Mr. Harrison’s contacts did not
influence the votes of the entire county board.
Based on a review of the arguments and the facts in this proceeding, the Board finds that
the ultimate decision was not influenced by the
ex parte
contacts.
Party Making Contacts Benefited.
Waste Management argues that Mr. Harrison, who
opposed siting, clearly benefited from the County’s decision. The County argues that since the
contacts did not influence anyone, there can be no benefit and in any event Mr. Harrison is not a
“party”. Waste Management argues that the County would have the Board read the word “party”
too narrowly.
The record indicates that Mr. Harrison appeared at the siting hearings and asked
questions of the witnesses. The Board disagrees with the County; although in the strictest sense
the only “party” in a local siting proceeding is the applicant, Mr. Harrison was a person involved
in the proceeding.
See Black’s Law Dictionary
(Pocket ed. 1996) (definition of “party”).
Therefore, the Board finds that Mr. Harrison and the opponents to the landfill could have
benefited from the
ex parte
contacts. The Board found previously, however, that the
ex parte
contacts did not influence the proceedings. Therefore, the Board finds that there is no benefit
from the
ex parte
contacts.
Waste Management was Aware of Contacts.
Waste Management asserts that Waste
Management was not aware of the contacts by Mr. Harrison. The County asserts that the letters
were made a part of the record and the comments made by Mr. Harrison and other members of
the public were known to Waste Management.
The Board agrees that the content of the letters were made a part of the record. The
Board also agrees that Waste Management was aware of the opposition to the expansion. Even
if Mr. Harrison’s exact contacts were not known to Waste Management, there was ample
opportunity to address concerns from those opposed to the landfill. Mr. Harrison appeared at the
hearing and expressed concerns about the siting (4/6 Tr. at 109-10; 114; C C2613 at 86; C2616 at
250). Thus, Waste Management knew there was opposition to the landfill expansion application
and could have addressed that opposition either at the hearing or in post-hearing comments.
Furthermore, the substance of the comments and contacts to the county board members is
not significant.
See
Land and Lakes
, PCB 99-69. As discussed above, the county board
members all testified that they indicated their inability to discuss the expansion and that the
substance of the application was not discussed. The Board also notes that the “existence of
strong public opposition does not render a hearing fundamentally unfair” where the hearing
provides a full and complete opportunity for the applicant to offer evidence that supports the
application. Waste Management
, 160 Ill. App. 3d 434, 513 N.E.2d 592. Therefore, the Board
39
finds that even if Waste Management was not aware of the verbatim comments in every contact,
the contacts were not of a substantive nature and Waste Management was not prejudiced.
No Need to Vacate and Remand.
Based on the Board’s rulings on the first four factors
from E & E Hauling
, the Board finds that there is no need to vacate and remand this proceeding.
The Board is unconvinced that the
ex parte
contacts prejudiced Waste Management or rendered
the proceedings fundamentally unfair.
Conclusion.
The Board finds that the existence of
ex parte
contacts through letters,
picketers, lawn signs, and individuals contacting county board members did not prejudice Waste
Management. Therefore, the Board finds that the proceedings were fundamentally fair.
Criteria (i), (iii), and (vi)
The Board will summarize the opening arguments by Waste Management and then the
arguments by the County on this issue. Next, the arguments made in the
amici
brief will be
summarized. Then the Board will summarize Waste Management’s reply. The Board will
conclude this section with analysis and findings by the Board.
Waste Management
Waste Management generally addresses arguments to all three of the challenged criteria
and then specifically addresses each criteria. The Board will first summarize the general
arguments, followed by more specific arguments for each criterion.
General.
Waste Management argues that the County denied siting by determining that
three of the nine criteria had not been demonstrated only 14 months after finding that Waste
Management had established all nine criteria were met in the 2002 Application. WMI Br. at 28.
Waste Management asserts that there is no evidence in the record that supports the County’s
decision that the 2003 Application did not establish that criteria (i), (iii), and (vi) had been met.
Id
. Waste Management maintains that the only facts to explain the County’s reversal relate to
the “improper advocacy and political pressure” from Mr. Harrison and other objectors. WMI Br.
at 29. Therefore, Waste Management argues the decision by the County is against the manifest
weight of the evidence.
Id
.
Waste Management notes that in reviewing a local siting decision, the Board determines
whether the decision is against the manifest weight of the evidence. WMI Br. at 29, citing Land
and Lakes, 319 Ill. App. 2d at 48, 743 N.E.2d at 193. Waste Management argues that a decision
is against the manifest weight of the evidence if an opposite conclusion is apparent or the
decision makers’ findings appear to be “unreasonable, arbitrary, or not based upon the evidence.”
WMI Br. at 29, citing Webb v. Mount Sinai Hospital
, 347 Ill. App. 3d 817, 807 N.E.2d 1026,
1034 (1st Dist. 2004). Waste Management continues by noting that the County’s decision must
be based on competent evidence and supported by substantial proof. WMI Br. at 29, citing
Gumma v. White, 345 Ill. App. 3d 610, 803 N.E.2d 130, 135 (1st Dist. 2003). Waste
Management concedes that the Board cannot reweigh the evidence but the Board must accept
uncontradicted facts as true even if there are contrary allegations without support. WMI Br. at
40
29, citing Webb, 347 Ill. App. 3d at 826. Waste Management reminds that the Board’s sole
function is to determine whether the County’s decision is just and reasonable based on the
evidence in the record. WMI Br. at 29, citing Gumma, 345 Ill. App. 3d at 615.
Waste Management maintains that the mere existence of some evidence that conflicts
with the applicant’s proof is not sufficient to support the County’s denial. WMI Br. at 29, citing
A.R.F. Landfill, PCB 87-51 (Oct. 1, 1987). Waste Management argues that the evidence
necessary to support the County’s decisions must be probative, credible and relevant to the
criteria at issue. WMI Br. at 30. Waste Management asserts that here there is no credible
evidence that supports the County’s denial of siting on criteria (i), (iii), and (vi) and the Board
must reverse the decision.
Id
. Waste Management argues that Waste Management presented
prima facie
proof for each of the statutory criteria before the County, and the RPC found the
proof sufficient.
Id
. Waste Management asserts the proof was not rebutted; however the County
found that compliance was not established.
Id
. Therefore, Waste Management asserts the
decision of the County was contrary to the manifest weight of the evidence.
Id
.
Criterion (i) - Need.
Waste Management asserts that need is established if a proposed
facility is reasonably required by the waste needs of the service area identified by the applicant,
taking into account the area’s waste production and waste disposal capacity. WMI Br. at 31,
citing File, 219 Ill. App. 3d 897, 597 N.E.2d 1228. Waste Management argues that objections to
the size of the service area or opposition to receipt of out-of-county waste are not proper reasons
to deny based on criterion (i). WMI Br. at 31, citing Metropolitan Waste Systems v. PCB, 201
Ill. App. 3d 51, 558 N.E.2d 785, 787 (2nd Dist. 1990).
Waste Management states that it presented the only witness on this criterion and no
conflicting data was presented. WMI Br. at 31. Further, Waste Management argues that the
witness’ methodology was not challenged or impeached and the witness’ opinions were not
contradicted or disproved.
Id
. Waste Management asserts the County had no competent
evidence on which to base a denial on criterion (i) and the decision appears to be based on
opposition to the receipt of out-of-county waste.
Id
. Waste Management maintains that such a
basis is not relevant or proper and the County’s decision was contrary to the unrebutted expert
testimony establishing need.
Id
.
Criterion (iii) - Minimize Effect on Surrounding Property.
Waste Management
argues that criterion (iii) is met if the applicant demonstrates that all that is reasonably feasible to
minimize incompatibility or effect on surrounding property values has been or will be done.
WMI Br. at 31, citing File
, 219 Ill. App. 3d at 907, 579 N.E. at 1236. Waste Management asserts
that criterion (iii) does not require the effects of the expansion to be eliminated, only that the
effects be minimized.. WMI Br. at 31-32, citing Clean Quality Resources, Inc. v. Marion County
Board, PCB 91-72 (Aug. 26, 1991). Waste Management maintains that rejection of criterion (iii)
cannot occur simply because there might be some reduction in value, and plans to install
screening berms, utilize setbacks and provide landscaping is sufficient to meet the requirements
of criterion (iii). WMI Br. at 32, citing Watts Trucking Service, Inc. v. City of Rock Island
, PCB
83-167 (Mar. 8, 1984); A. R. F. Landfill
, PCB 87-51 and Waste Management of Illinois, Inc. v.
McHenry County Board, PCB 86-109 (Dec. 5, 1986).
41
Waste Management argues that testimony from one of Waste Management’s witnesses
establishes that the area is 94% agricultural and open space and a landfill may be reasonably
sited in such an area. WMI Br. at 32, citing McHenry County Board, PCB 86-109. Furthermore,
Waste Management maintains that Waste Management has proposed a landscape-screening plan
that includes berms and installation of plant material and similar plans have been found to satisfy
criterion (iii).
Id
.
Waste Management argues that witnesses testified that the existing landfill has not had a
negative impact on property values and has not deterred residential development. WMI Br. at
33. Waste Management asserts that a study of another landfill similarly situated, Settler’s Hill in
Kane County, also establishes no negative impact from the landfill.
Id
. Waste Management
maintains that this testimony was unrebutted and that the findings establish that criterion (iii) is
more than met.
Id
. Waste Management notes that criterion (iii) requires that the effect on
property value be minimized and Waste Management has shown that there is no measurable
negative effect.
Id
. Waste Management argues that where there is no showing of an adverse
effect, the criterion has been satisfied and any finding to the contrary is against the manifest
weight of the evidence. WMI Br. at 33, citing Clean Quality Resources, PCB 91-72.
Waste Management asserts there is no evidence in this record to support the County’s
denial of criterion (iii). WMI Br. at 34. Therefore, Waste Management maintains the County’s
decision is against the manifest weight of the evidence.
Id
.
Criterion (vi) - Traffic.
Waste Management argues that criterion (vi) is satisfied if the
traffic patterns to or from the expansion are proposed to minimize impact on existing traffic
flow. WMI Br. at 34, citing CDT Landfill Corporation v. City of Joliet, PCB 98-60 (Mar. 5,
1998). Waste Management maintains that if the traffic patterns or routing proposed in the
application are shown to minimize the impact on existing traffic flows, criterion (vi) is met.
WMI Br. at 34. Waste Management further maintains that the issue is not whether there will be
a negative impact, increased traffic volumes and noise, dust or driver’s negligence. Nor, argues
Waste Management, is the issue whether there will be future traffic flows or development that
may be affected by the expansion.
Id
. Furthermore, Waste Management states that the evidence
establishing criterion (vi) need not be unopposed or uncontradicted. WMI Br. at 34, citing Waste
Hauling, Inc. v. Macon County Board, PCB 91-223 (May 7, 1992).
Waste Management asserts that the written report by Metro Transportation and the
testimony of Mr. Corcoran establish that the traffic patterns designed for the expansion minimize
the impact on existing traffic flows. WMI Br. at 35. Waste Management opines that the
County’s decision was based on no relevant or sufficient evidence and appears to be based on a
concern about an increased volume of traffic due to out-of-county waste.
Id
. Waste
Management argues such concerns are not proper consideration in determining if criterion (vi)
has been met.
Id
.
Waste Management argues that the testimony of Mr. Coulter is insufficient to support the
County’s denial and his principal concerns do not properly address standards relevant to criterion
(vi). WMI Br. at 35. Waste Management alleges that his concerns about the impact of the
expansion on school bus operations and possibility of inattentive drivers are not relevant to
42
criterion (vi). WMI Br. at 35, citing Fairview Area Citizens Taskforce, 198 Ill. App. 3d 541, 555
N.E.2d 1178. Furthermore, Waste Management asserts that Mr. Coulter took issue with criterion
(vi) and Mr. Coulter believes Waste Management should have considered future traffic. WMI
Br. at 35. Waste Management maintains that criterion (vi) does not refer to future traffic. WMI
Br. at 35-36.
Waste Management also takes issue with Mr. Coulter’s concerns about the proposed
improvements to site access proposed under the application. WMI Br. at 36. Waste
Management asserts that Mr. Coulter’s testimony was inaccurate and unreliable.
Id
. Waste
Management maintains that Mr. Coulter’s testimony was based on a schematic and not the actual
design submitted to IDOT.
Id
. Waste Management also challenges Mr. Coulter’s opinion on
sight distances arguing that Mr. Coulter “was unable or unwilling” to confirm that sight distances
actually exceed 1,100 feet.
Id
.
Waste Management maintains that the County’s decision is not supported by any relevant
or credible evidence and a result opposite to the County’s decision is plain. WMI Br. at 36.
Therefore, Waste Management asserts the County’s decision is against the manifest weight of the
evidence and the Board should reverse the County.
Id
.
County
The County generally addresses arguments to all three of the challenged criteria and then
specifically addresses each criteria. The Board will summarize the general arguments, followed
by the more specific arguments for each criterion.
General.
The County argues that the denial of siting approval should be upheld because
the decision is not against the manifest weight of the evidence. C. Br. at 17. The County notes
that in order to grant siting approval, the decisionmaker must find that all nine of the statutory
criteria of Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2006)) have been met. C. Br. 17,
citing Waste Management, 160 Ill. App. 3d at 443, 513 N.E. 2d at 597. The County argues that
if any one of the criteria is not met, the application must be denied and in this case the County
found that three criteria were not met.
Id
. The County argues that because Waste Management
did not satisfy all nine statutory criteria, the County was required to deny siting approval.
Id
.
The County argues that the manifest weight of the evidence standard must be applied to
each of the nine criteria and the decision can only be overturned if the decision is against the
manifest weight of the evidence. C. Br. at 17. The County asserts that the manifest weight of
the evidence standard is consistent with the legislative intent to give local authorities the power
to determine site location suitability for the proposed facility.
Id
. Further the County asserts that
the hearing body has the sole province to weigh the evidence, resolve conflicts in testimony, and
assess the credibility of witnesses. C. Br. at 17-18, citing Tate
, 188 Ill. App. 3d at 1022, 544
N.E.2d at 1195.
The County asserts that a finding that a different conclusion might be reasonable is not
sufficient to find that the decision is against the manifest weight of the evidence. C. Br. at 18,
citing Wabash and Lawrence Counties Taxpayers and Water Drinkers Association v. PCB, 198
43
Ill. App. 3d 388, 392, 555 N.E.2d 1081, 1085 (5th Dist. 1990). The County maintains that a
decision is against the manifest weight of the evidence only if the opposite conclusion is clearly
evident, plain or indisputable. C. Br. at 18, citing Worthen v. Roxana, 253 Ill. App, 3d 378, 384,
623 N.E.2d 1058, 1063 (5th Dist. 1993). The County further maintains that the Board cannot
reweigh evidence or reassess the credibility of witnesses.
Id
. The County argues that in this case
the record clearly establishes that the County’s decision on criteria (i), (iii), and (vi) was not
against the manifest weight of the evidence. C. Br. at 18.
The County also observes that in the brief, Waste Management gives credence to the fact
that the RPC recommended that the County approve the expansion. C. Br. at 32. The County
asserts that the RPC recommended 79 conditions that the RPC believed were necessary to meet
the nine criteria.
Id
. The County acknowledges the work of the RPC; however, the County
argues that the recommended approval is irrelevant because the decision on whether or not to
approve the expansion is the County’s.
Id
. Furthermore, on the three criteria the County voted
to disapprove, the RPC recommended conditions on each of those criteria.
Id
. Those conditions,
according to the County, included additional berming and barriers and 14 conditions on criterion
(vi) reflecting deficiencies pointed out by Mr. Coulter. C. Br. at 32-33.
Criterion (i) - need.
The County asserts that under criterion (i), the applicant must show
that the facility is reasonably required by the waste needs of the area the facility will serve. C.
Br. at 18, citing Waste Management, 122 Ill. App. 3d at 645, 461 N.E.2d at 546. The County
further asserts that if other facilities are available and sufficient to meet the future needs of the
service area, expansion is not reasonably required.
Id
. Based on the testimony of Waste
Management’s only witness, the County maintains that the decision by the County that Waste
Management failed to meet criterion (i) is clearly correct. C. Br. at 19.
The County states that the decision is correct for several reasons. C. Br. at 19. First, Ms.
Smith “admitted” she did not consider capacity available in the service area from landfills that
currently exist or may be reasonably expected to exist in the future. C. Br. at 19; C2607 at 76-
80. The County asserts that including the capacities of only some of those facilities would result
in more than adequate landfill space for a period of over 20 years. C. Br. at 19. The County
argues that Ms. Smith also failed to “assume” an appropriate recycling rate and if she had done
so there would not be a capacity shortfall for 12 years in the service area. C. Br. at 19; C2607 at
72.
The County argues that not only did Waste Management fail to include facilities such as
Prairie River, Spoon Ridge, and Brickyard, but also Waste Management failed to include
facilities that have received siting approval. C. Br. at 19. The County maintains that based on
case law Waste Management should have appropriately considered proposed facilities. C. Br. at
20, citing Waste Management
, 175 Ill. App. 3d at 1033-34, 530 N.E.2d at 691.
In this case, the County claims that Waste Management’s witness failed to take into
account millions of tons of landfill capacity that is reasonably likely to become available in the
near future. C. Br. at 20. The County argues that, because Waste Management failed to even
consider the available capacity created by these new facilities that have received siting approval,
44
the County decision that Waste Management failed to meet criterion (i) is more than reasonable.
Id
.
The County asserts that the decision to deny siting based on a failure to meet criterion (i)
is further supported by Waste Management’s failure to properly calculate the capacity shortfall.
C. Br. at 21. Specifically, the County claims that Waste Management’s witness used incorrect
recycling rates that were much lower than the actual rates of recycling.
Id
. As a result of using
incorrect recycling rates, the County argues that the need for the facility was over-estimated due
to improper calculation of capacity.
Id
. The County asserts that proper calculations would
demonstrate that there is sufficient capacity for 12 years, so even without the future facilities, the
County asserts there will not be a need for expansion until 2015.
Id
.
The County maintains that several courts have found that where there is landfill capacity
in the service area for ten or more years, criterion (i) is not met. C. Br. at 21, citing Waste
Management, 122 Ill. App. 3d 639, 461 N.E.2d 542; Waste Management of Illinois v. PCB, 123
Ill. App. 3d 1075, 463 N.E.2d 969 (2nd Dist. 1984); Waste Management, 175 Ill. App. 3d 1023,
530 N.E.2d 682. The County cites a Third District Waste Management case from 1984, where
the court affirmed decisions of the Board and Will County that found the decisions were not
against the manifest weight of the evidence where landfill capacity existed for ten years. C. Br.
at 21-22, citing Waste Management, 122 Ill. App. 3d 639, 461 N.E.2d 542. Similarly, in the
Second District, a Waste Management case found that where capacity for nine or ten years
existed, criterion (i) was not met. C. Br. at 21-22, citing Waste Management, 123 Ill. App. 3d
1075, 463 N.E.2d 969. Based on this case law, the County asserts that the County’s decision is
not against the manifest weight of the evidence because using the appropriate recycling rates
there is more than ten years of capacity available for the service area. C. Br. at 23.
The County claims that even if the Board accepts the calculations by Waste Management,
the County’s decision is still not against the manifest weight of the evidence. C. Br. at 23. The
County asserts that in A.R.F. Landfill, Inc. v. PCB, 174 Ill. App. 3d 82, 528 N.E.2d 390 (2nd
Dist. 1988), the court found the decision that criterion (i) had not been met was not against the
manifest weight of the evidence where additional landfill space would not be needed for six
years.
Id
. The County argues that likewise here even if the shortfall is within six or seven years,
the Board must find that the County’s decision was not against the manifest weight of the
evidence.
Id
.
Criterion (iii) - Minimize Effect on Surrounding Property.
The County asserts that
criterion (iii) requires more than minimal efforts to reduce the proposed landfill’s incompatibility
and an applicant must demonstrate that the applicant has done or will do all that is reasonably
feasible to minimize the incompatibility. C. Br. at 24, citing File, 219 Ill. App. 3d at 907, 579
N.E.2d at 1236 and Waste Management 123 Ill. App. 3d at 1090, 463 N.E.2d at 980. The
County concedes that only Waste Management provided testimony on this criterion; however,
the County argues that the County was not required to accept Waste Management’s witnesses’
opinions. C. Br. at 24.
The County argues that as the trier of fact, the County determines what weight should be
accorded to expert testimony. C. Br. at 25,
In re
Glenville, 139 Ill. 2d 242, 251, 565 N.E.2d 623,
45
627 (1990). The County notes that while the trier of fact cannot arbitrarily reject expert
testimony, the trier can disbelieve the testimony.
Id
. In this case, the County asserts that the
testimony of Waste Management’s witnesses was reviewed and the County still found that
criterion (iii) had not been met.
Id
. The County maintains that the decision should be affirmed
as the local siting authority, not the Board, weighs the evidence and assesses the credibility of
witnesses. C. Br. at 25, citing Fairview Area Citizens Taskforce 198 Ill. App. 3d at 550, 555
N.E.2d at 1184.
The County claims that witness credibility is especially relevant in this proceeding where
Ms. McGarr had indicated during the 2002 Application process that she possessed an associate’s
degree, but her updated resume in the 2003 Application did not include that reference. C. Br. at
25. The County states that Ms. McGarr had to take another class to receive her degree.
Id
. The
County argues that furthermore, Ms. McGarr’s credibility and expertise were suspect because
she did not perform any appraisals herself and relied on conversations with homeowners to
determine property values around the landfill and whether those properties were negatively
impacted. C. Br. at 25-26.
The County questions Ms. McGarr’s expertise because she relied on the Poletti study that
was a study for an entirely different landfill with an entirely different target area. C. Br. at 26.
The County takes issue with the number of transactions Ms. McGarr referenced and her use of
the Settler’s Hill landfill information.
Id
. Because of the small number of transactions, the
County notes that Ms. McGarr admitted that the removal of one transaction could impact her
findings.
Id
. The County argues that Ms. McGarr’s comparison of Settler’s Hill to the
expansion was also suspect because Ms. McGarr did not consider the significant differences
between Kane and Kankakee Counties.
Id
.
Additional issues for the County from Ms. McGarr’s testimony include the arbitrary size
of Ms. McGarr’s target area and unconsidered negative impacts on the control area from features
such as the interstate and a rail line that were not accounted for by Ms. McGarr. C. Br. at 27.
Finally, the County asserts that Ms. McGarr’s report and testimony were unreliable as objectors’
counsel pointed out many problems.
Id
.
The County argues that the testimony of Waste Management’s other witness, Mr.
Lannert, was also questionable. C. Br. at 28. Specifically, the County notes that Mr. Lannert
admitted he had not reviewed the City of Kankakee Comprehensive Plan A, or speak to banks,
developers, businesses, or residents to determine if the plan did minimize the impact on the area.
Id
. The County takes issue with Mr. Lannert’s compensation and his failure to determine the
impact of the expansion on future growth.
Id
.
The County argues that based on the testimony, the County’s decision that Waste
Management failed to meet criterion (iii) is not against the manifest weight of the evidence. C.
Br. at 28-29.
Criterion (vi) - Traffic.
The County argues that Mr. Coulter had many criticisms of the
testimony by Waste Management’s witness. C. Br. at 29. For example, the County points to Mr.
Coulter’s testimony that Waste Management failed to take into consideration both existing and
46
committed development. C. Br. at 29; C2613 at 39-40. The County argues that if Waste
Management had considered committed development, the traffic from the Town & Country
Landfill and the existing convention center and aquatic park would have been considered. C. Br.
at 29. The County argues that Mr. Coulter’s testimony established that Waste Management
failed to consider the impact on school bus operations. C. Br. at 29; C2613 at 13-14.
The County asserts that Mr. Coulter also found the design of the roadway improper and
that the shoulder was inadequate. C. Br. at 30; C2613 at 14-16, 32. The County maintains that
Mr. Coulter found the southbound turn lane inadequate and the minimum sight distance used was
incorrect. C. Br. at 30-31; C2613 at 17-20. The County also points out that Mr. Coulter opined
that criterion (vi) was also not met because there was no mandatory procedure for cleaning mud
and debris. C. Br. at 31;C2613 at 21.
The County argues that there was conflicting testimony on criterion (vi), and as the trier
of fact, the County assesses witnesses and determines credibility. C. Br. at 31 (citations
omitted). The County argues that the county board members were also free to use their own
knowledge and familiarity with traffic conditions to determine that criterion (vi) was not met.
Id
.
The County argues that the Board should affirm the County’s decision.
Id
.
Watson
Watson argues that the record supports the County’s decision on each of the criteria.
W.Br. at 18. The Board will summarize the arguments on each of the criteria.
Criterion (i) - Need.
Watson agrees that proof of immediate necessity is not required to
meet criterion (i); however a 27-year future estimate with actual need not occurring for ten years
fails to prove criterion (i). W.Br. at 18. Watson argues that Waste Management’s expert did not
include all the available capacity in the service area in calculating the need for the expansion.
W.Br. at 18-19. If only some of that available capacity is added and recycling is added, Watson
claims there is a capacity overage. W.Br. at 19. Watson asserts that considering this example
alone, the County could have found Ms. Smith’s conclusions were not supported by the record.
Id
.
Criterion (iii) - Minimize Effect on Surrounding Property.
Watson argues that Waste
Management’s position that where no contrary evidence was provided, a finding for Waste
Management results does not recognize testimony adverse to Waste Management’s position.
W.Br. at 20. Watson argues that contrary evidence was included in the record through cross-
examination and public comment.
Id
. Watson claims that Ms. McGarr’s credibility was in
question due to the confusion regarding her diploma and this alone is sufficient to find the
County’s decision was not against the manifest weight of the evidence.
Id
.
Criterion (vi) - Traffic.
Watson argues that Waste Management’s criticisms of Mr.
Coulter’s testimony, including his being unaware of a submission to IDOT that is not a part of
this record, ignores many other deficiencies in Waste Management’s submittal on criterion (vi).
W.Br. at 20. Watson claims that Waste Management never submitted documentation that the
access problems along U. S. 45/52 were corrected. W.Br. at 20-21.
47
Karlock
Karlock argues that Waste Management’s articulated standard of review as to what is
against the manifest weight of the evidence is unduly relaxed. K.Br. at 11. Karlock quotes from
PCB 03-125 for the standard of review.
Id
. Karlock maintains that with criterion (vi), there was
conflicting testimony and the County’s decision to assign credibility to Mr. Coulter cannot be
disturbed by the Board. K.Br. at 12. Karlock also asserts that Waste Management’s reliance on
the RPC’s recommendation is misplaced as the Board has consistently found that the local
decisonmaker can reject the finding or recommendations of consultants.
Id
.
Karlock asserts that Waste Management seems to argue that on criterion (i) and (iii), the
County must accept the testimony and evidence of Waste Management as “true uncontradicted
facts not withstanding the existence of contrary unsupported allegations.” K.Br. at 13. Karlock
maintains that Waste Management is wrong as the whole purpose of cross-examination is for an
opposing party to probe testimony for consistency and to determine whether the conclusions are
supported by the underlying facts.
Id
. Karlock points to Waste Management of Illinois v. PCB,
234 Ill. App. 3d 65, 600 N.E.2d 55 (1st Dist. 1992) and notes that in that case, the Board
affirmed a denial of siting on criterion (i), without contradicting evidence with the applicant’s
expert failed to take into consideration sufficient facts and circumstances. K.Br. at 12-14.
Karlock takes issue with Waste Management’s characterization that the vote on the 2003
Application was a reversal of the County’s prior approval. K.Br. at 14. Karlock asserts that this
is a misstatement as Waste Management’s argument attempts to convey the impression that the
evidence at the second hearing was the same and outside forces impacted the decision.
Id
.
Karlock reiterates that the second proceeding was a new, separate and different proceeding, with
substantially similar applications.
Id
.
Runyon
Runyon’s arguments are to the fundamental fairness of the proceedings and not to the
specific criteria.
Waste Management’s Reply
Criterion (i) - Need.
Waste Management argues that the County uses misstatements of
Ms. Smith’s testimony in an attempt to discredit the unrebutted testimony. Reply at 11. Waste
Management concedes that the low end of the range of shortfall capacity testified to by Ms.
Smith did differ between the two applications; however, given the upper limits of the range,
Waste Management asserts the lower limit differences is immaterial. Reply at 12. Waste
Management notes that the County takes issue with the recycling rates used by Ms. Smith;
however, Ms. Smith used the recycling goals in the county solid waste management plans.
Id
.
Furthermore, Waste Management argues that a possible increase in recycling does not invalidate
a finding of need. Reply at 12, citing Turlek v. PCB, 274 Ill. App. 3d 244, 653 N.E.2d 1288 (1st
Dist 1995).
48
Waste Management asserts that even if there is sufficient capacity for the service area
until 2015, that does not prove a lack of need. Reply at 12. Waste Management discounts the
cases relied upon by the County and notes that Illinois courts have also found that need was
shown when remaining capacity was ten years or longer. Reply at 13, citing E & E Hauling
, 116
Ill. App. 3d 586, 451 N.E.2d 555, American Bottom Conservancy v. City of Madison
, PCB 07-
84 (Dec. 6, 2007). Waste Management argues that the County’s argument should therefore be
rejected. Reply at 13.
Waste Management asserts that Illinois case law establishes that the applicant does not
have to consider facilities in the siting or permitting process when determining need. Reply at
13, citing Tate v. PCB, 188 Ill. App. 3d at 1019-20, 544 N.E.2d at 1193; Turlek v. Village of
Summit, PCB 94-19, 94-21, 94-22 (consol.) (May 5, 1994). Therefore, Waste Management
argues that using only currently permitted facilities in her calculations was not improper for Ms.
Smith. Reply at 13. Furthermore, Waste Management asserts that the County’s claim that Ms.
Smith did not consider other permitted facilities is inaccurate because Ms. Smith testified that
she did consider them but did not include them for valid reasons. Reply at 14.
Waste Management argues that despite the criticisms of her testimony, Ms. Smith was
the only witness to prepare a report, present facts, evaluate data and form an opinion. Reply at 4.
Waste Management further argues that Ms. Smith’s testimony did not change from the 2002
Application to the 2003 Application and there is nothing in this record to justify the County’s
decision on criterion (i).
Id
.
Criterion (iii) - Minimize Effect on Surrounding Property.
Waste Management notes
that the County alleges bias on the part of Mr. Lannert due to his compensation; however, the
Board has previously ruled similar generic attacks on expert witnesses are not persuasive. Reply
at 15, citing Rochelle, PCB 03-218. Also, Waste Management asserts that a compatibility
assessment need not consider future development to be reliable. Reply at 15, citing Citizens
Against Regional Landfill (CARL) v. Count Board of Whiteside County, PCB 92-156 (Feb. 25,
1993). Further, Waste Management maintains that opinions from residents and businesses are
not necessarily determinative in an analysis of the impact on the surrounding area. Reply at 15,
citing American Bottom Conservancy v. Village of Fairmont City
, PCB 01-159 (Oct. 18, 2001);
CARL
, PCB 92-156.
Waste Management argues that contrary to the claims by the County, Ms. McGarr
determined property values by performing a standard comparable property value analysis for
properties surrounding the existing site and the proposed expansion. Reply at 16. Waste
Management maintains that Ms. McGarr used the same data for both application in addition to
two farmland sales and three residential sales.
Id
. Waste Management argues that Ms. McGarr’s
findings on property values were unrebutted and Ms. McGarr used her experience to establish
the target and control areas. Reply at 17.
Criterion (vi) - Traffic.
Waste Management first addresses the contention by the
County that Waste Management did not consider school bus traffic. Reply at 19. Waste
Management disagrees and notes that Mr. Corcoran specifically testified that the expansion’s
peak travel times will not coincide with school bus traffic.
Id
. Waste Management claims that
49
“concerns and speculations” are not legitimate basis for a determination that criterion (vi) has not
been satisfied.
Id
.
Waste Management asserts that the County’s other contentions are without merit. Reply
at 19. Specifically Waste Management argues that future traffic considerations are not a part of
the analysis on criterion (vi).
Id
. As to the County’s contention on sight distance, Waste
Management asserts that the record demonstrates that, even applying the sight distance
advocated by the County, the 2003 Application would meet them. Reply at 20.
Board Analysis and Findings
As stated above, the Board reviews the decision of the County on the landfill siting
application by Waste Management to determine if the decision is against the manifest weight of
the evidence. The Board is not in a position to reweigh the evidence, but must determine if the
decision is against the manifest weight of the evidence. Fairview Area Citizens Taskforce, 198
Ill. App. 3d 541, 555 N.E.2d 1178. Therefore, the Board must determine if the record contains
evidence to support the County’s decision that criteria (i), (iii), and (vi) were not satisfied by
Waste Management’s 2003 Application. The Board will discuss each of the criteria below.
Criterion (i) - Need.
Pursuant to Section 39.2(a)(i) of the Act (415 ILCS 5/39.2(a)(i)
(2006)), the applicant must establish that the proposed facility is necessary to accommodate the
waste needs of the area it is intended to serve. Waste Management argues that the only witness
on criterion (i) was provided by Waste Management and the unrebutted testimony establishes
that criterion (i) has been met. The County disagrees and points to testimony by Waste
Management’s expert on cross-examination as evidence that criterion (i) has not been met. The
amici
briefs also assert that criterion (i) has not been met.
The Board agrees that there is no testimony in the record on criterion (i) other than the
testimony from Waste Management. The parties all cite case law from both the Board and the
courts to support their position on criterion (i). The County does not find that the evidence and
case law establishes that the facility is necessary to accommodate the waste needs of the service
area. Waste Management argues that the facility is needed to accommodate the wastes needs of
the service area. Although the County can cite cases wherein landfill capacity for ten or more
years does not establish need, Waste Management can cite to contrary cases.
Well-established case law states that the Board does not reweigh the evidence or reassess
the witnesses’ credibility.
See
City of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996; Waste
Management, 122 Ill. App. 3d 639, 461 N.E.2d 542; Steinberg, 139 Ill. App. 3d 503, 487 N.E.2d
1064; Willowbrook Motel
, 135 Ill. App. 3d 343, 481 N.E.2d 1032. The Board looks only to the
record to find support for the County’s decision. In this case, the Board finds that the record
supports the County’s decision on criterion (i). Waste Management’s witness used recycling
rates from the solid waste management plans, yet evidence in the record indicates that recycling
rates may now be higher than the recycling values used for calculation when the solid waste
management plans were written. Waste Management’s witness did not consider certain
permitted landfills and newly sited landfills in the area. The Board agrees that the applicant does
not have to consider unpermitted landfills; however, there is nothing in the statutory language
50
that prohibits the County from considering that information. “[M]erely because the [local siting
authority] could have drawn different inferences and conclusions from conflicting testimony is
not a basis for this Board to reverse the [local siting authority’s] finding.” File, 219 Ill. App. 3d
at 905-906, 579 N.E.2d at 1235. Thus, the Board finds that there is evidence in the record that
supports the County’s decision on criterion (i). The Board finds that the County’s decision on
criterion (i) is not against the manifest weight of the evidence.
Criterion (iii) - Minimize Effect on Surrounding Property.
Pursuant to Section
39.2(a)(iii) of the Act (415 ILCS 5/39.2(a)(iii) (2006)), the applicant must demonstrate that the
facility is located so as to minimize incompatibility with the character of the surrounding area
and to minimize the effect on the value of the surrounding property. Waste Management argues
that the only evidence in this record is the uncontradicted testimony of Waste Management’s
experts. The County disagrees and points to testimony by Waste Management’s experts on
cross-examination and a public comment filed as evidence that criterion (iii) has not been met.
The
amici
briefs also assert that criterion (iii) has not been met.
The cross-examination of Waste Management’s witnesses, particularly Ms. McGarr,
provides sufficient evidence to support the County’s decision. The confusion over Ms. McGarr’s
academic degree was cited by the County in determining the credibility of Waste Management’s
witness. The County also cited testimony that Ms. McGarr had not performed actual appraisals
as evidence that the County considered when finding that criterion (iii) had not been met. Also,
the record includes a public comment that disagrees with the report prepared by Waste
Management on criterion (iii). Even though this public comment was not subject to cross-
examination, the public comment is in the County record. Further, the public comment supports
some of the concerns raised in cross-examination about whether criterion (iii) was met in Waste
Management’s application.
As stated above, the case law establishes that the Board does not reassess witness
credibility or reweigh the evidence.
See
City of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996;
Waste Management, 122 Ill. App. 3d 639, 461 N.E.2d 542; Steinberg, 139 Ill. App. 3d 503, 487
N.E.2d 1064; Willowbrook Motel
, 135 Ill. App. 3d 343, 481 N.E.2d 1032. Further, where there
is conflicting evidence, the Board is not free to reverse merely because the local siting authority
credits one group of witnesses and does not credit the other.
See
Waste Management
, 187 Ill.
App. 3d at 82, 543 N.E.2d at 507. Thus, the Board finds that there is evidence in the record that
supports the County’s decision on criterion (iii). The Board finds that the County’s decision on
criterion (iii) is not against the manifest weight of the evidence.
Criterion (vi) - Traffic.
Pursuant to Section 39.2(a)(vi) of the Act (415 ILCS
5/39.2(a)(vi) (2006)), the applicant must demonstrate that the traffic patterns to and from the
facility are so designed to minimize the impacts on existing traffic flow. Waste Management
argues that the County’s decision on criterion (vi) is against the manifest weight of the evidence
and challenges the testimony of Watson’s witness, Mr. Coulter, who presented evidence that
Waste Management’s application did not demonstrate that criterion (vi) had been met. The
County argues that the record supports the County’s decision that criterion (vi) was not met and
notes that there were two experts testifying on this criterion.
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The testimony of Mr. Watson’s expert (Mr. Coulter) provided a counter point to Waste
Management’s expert witness (Mr. Corcoran). The Board agrees with Waste Management that
criterion (vi) addresses only existing traffic and there is no need for an applicant to consider
future traffic unrelated to the application. However, there is evidence in the record that school
buses and trucks from the expansion will be sharing the road, even at non-peak hours. Also there
is testimony that minimum sight distances could be insufficient. Finally, although Waste
Management indicated that IDOT had approved planned improvements to the intersection of
U.S. Router 45/52 and the proposed landfill facility entrance, that evidence is not in the record.
Thus, the County could credit the potential problems raised by Mr. Coulter’s testimony.
The Board does not reweigh the evidence or reassess the witnesses’ credibility.
See
City
of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996; Waste Management, 122 Ill. App. 3d 639,
461 N.E.2d 542; Steinberg, 139 Ill. App. 3d 503, 487 N.E.2d 1064; Willowbrook Motel, 135 Ill.
App. 3d 343, 481 N.E.2d 1032. Further, where there is conflicting evidence, the Board is not
free to reverse merely because the local siting authority credits one group of witnesses and does
not credit the other.
See
Waste Management, 187 Ill. App. 3d at 82, 543 N.E.2d at 507. The
Board finds that there is evidence in the record that supports the County’s decision on criterion
(vi). The Board finds that the County’s decision on criterion (vi) is not against the manifest
weight of the evidence.
CONCLUSION
The Board finds that the proceedings before the County were fundamentally fair and
Waste Management was not prejudiced by the proceedings. The Board further finds that the
County’s decision relating to the need for the facility (415 ILCS 5/39.2(a)(i) (2006)), the
facility’s design to minimize the impact on surrounding property (415 ILCS 5/39.2(a)(iii)
(2006)), and the traffic patterns (415 ILCS 5/39.2(a)(vi) (2006)) is not against the manifest
weight of the evidence. The Board therefore affirms the County’s decision to deny siting for the
landfill expansion proposed by Waste Management.
This opinion constitutes the Board's findings of fact and conclusions of law in this matter
ORDER
For the reasons presented in the Board’s opinion, the Board affirms the March 17, 2004
decision by the County Board of Kankakee County denying siting of an expansion of pollution
control facility at the Kankakee Landfill for Waste Management of Illinois, Inc.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board's procedural rules provide that motions for the Board to reconsider or modify its final
52
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above opinion and order on January 24, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
