)
)
)
)
)
)
)
)
No.
PCB
03-33
)
(Third-Party
Pollution
Control Facility
)
Appeal)
)
No.
PCB
03-35
)
(Third-Party
Pollution Control
Facility
)
Siting
Appeal)
)
(Consolidated)
)
)
)
)
)
)
)
)
)
DEC
5
COUNTY
OF KANKAKEE
and
EDWARD
D.
SMITH,
STATE’S ATTORNEY
OF
)
SIATh
OF
iLwo1s
KANKAKEE
COUNTY,
)
Pollution
ontrol
Board
)
Petitioners,
)
No. PCB
03-3
1
)
(Third-Party Pollution
Control
Facility
vs.
)
Appeal)
)
THE
CITY
OF KANKAKEE,
ILLINOIS,
CITY)
COUNCIL, TOWN
AND COUNTRY
)
UTILITIES,INC. and
KANKAKEE
REGIONAL)
LANDFILL, L.L.C.
Respondents.
BYRON
SANDBERG,
Petitioner,
vs.
THE CITY
OF KANKAKEE,
ILLINOIS, CITY)
COUNCIL,
TOWN AND COUNTRY
)
UTILITIES,
INC.,
and
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
)
Respondents.
)
)
)
WASTE MANAGEMENT
OF ILLINOIS,
INC.)
Petitioner,
vs.
THE CITY
OF KANKAKEE,
ILLINOIS,
CITY
COUNCIL,
TOWN AND
COUNTRY
UTILITIES,
INC., and KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
Respondents.
NOTICE
OF FILING
TO:
See Attached
Service
List
PLEASE
TAKE NOTICE
that on
December 4, 2002
there has caused
to be filed
with
Dorothy
M. Gunn, Clerk
of the Illinois
Pollution Control Board,
an
original
and
9
copies
of the
following document,
a copy
of which is
attached hereto:
Reply Brief of Town
& Country Utilities,
Inc.
QW
GEORGE MiJELLER,
Attorney
at Law
PROOF OF
SERVICE
I,
Pat vonPerbandt, a non-attorney,
on
oath state that I served
a copy of the
above
listed
document
by sending the
same to each of the parties
listed on
the attached Service
List via
United Parcel
Service from Ottawa,
Illinois,
on December4, 2002.
4
Th
Pat vonPebandt
-
GEORGE MUELLER,
P.C.
Attorney at Law
501 State
Street
Ottawa,
IL 61350
Phone: (815)
433-4705
AND SWORN
TO
before
of December,
2002.
OFFICIAL
SEAL
NOTARY
PUBLIC
GENIA
STATE
FOX
OF
ILLINOIS
My
Commission
Expires
01-03-2004
AFFIDAVIT
OF
SERVICE
The undersigned,
pursuant
tot he provisions
of
Section
1-109
of the Illinois
Code
of Civil
Procedure,
hereby under
penalty
of perjury
under
the laws of
the United States
of
America,
certifies that
on December
4, 2002, a copy
of the foregoing
Reply
Brief Of Town
&
Country
Utilities,
Inc.
and Kankakee
Regional
Landfill,
L.L.C. was
served
upon:
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control Board
James
R.
Thompson
Center
100 West
Randolph
Street,
Suite
11-500
Chicago,
IL
606012-3218
Via U.S.
Mail
City of
Kankakee Clerk
Anjanita Dumas
385
E.
Oak
Street
Kanicakee,
IL 60901
Via
Facsimile:
(815)
933-0482
& U.S. Mail
Attorney Christopher
Bohlen
Barmann, Kramer,
and Bohlen,
P.C.
200
East
Court
Street, Suite
502
P.O.
Box 1787
Kankakee, IL
60901
Via Facsimile:
(815)
939-0994
&
Regular
Mail
Edward
D. Smith, Kankakee
County
State’s
Attorney
County
of Kankakee
do
Hinshaw &
Culbertson
Attorneys
at Law
100
Park Avenue
P.O.
Box 1389
Rockford,
IL
61105-1389
Via Facsimile:
(815)
963-9989
&
Regular Mail
Donald
J.
Moran
Pederson
& Houpt
161 N. Clark
Street, Suite
3100
Chicago,
IL 60601-3242
Via Facsimile:
(312)261-1149
& Regular
Mail
Kenneth
A. Leshen
One Dearborn
Square, Suite
550
Kankakee,IL
60901
Via Facsimile:
(815)
933-3397 &
Regular. Mail
Byron
Sandberg
P.O.
Box
220
Donovan,IL
60931
Via Facsimile:
(815) 486-7327
Brad
Halloran
Illinois
Pollution
Control Board
100
West Randolph,
Suite 11-500
Chicago,
IL 60601
Via Facsimile:
(312)814-3669
‘,‘
,.-..
BEFORE THE ILLINOIS POLLUTION
CONTROLRv;
COUNTY OF KANKAKEE and EDWARD D.
)
SMITH, STATE’S ATTORNEY OF
)
° 2002
KANKAKEE COUNTY,
)
Sf
OF
ILLINOIS
Petitioners,
))
No. PCB 03-3 1
PoIItj,,,
Control
Board
)
(Third-Party
Pollution Control
Facility
vs.
)
Appeal)
)
THE CITY OF KANKAKEE, ILLINOIS, CITY)
COUNCIL, TOWN
AND
COUNTRY
)
UTILITIES,INC. and KANKAKEE REGIONAL)
LANDFILL,
L.L.C.
)
)
Respondents.
)
)
)
BYRON SANDBERG,
)
)
Petitioner,
)
No. PCB
03-33
)
(Third-Party Pollution Control Facility
vs.
) Appeal)
)
THE CITY OF KANKAKEE, ILLINOIS, CITY)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC.,
and
KANKAKEE
)
REGIONAL LANDFILL,
L.L.C.,
)
)
Respondents.
)
)
)
WASTE
MANAGEMENT OF ILLINOIS, INC.)
No.
PCB
03-35
)
(Third-Party Pollution Control Facility
Petitioner,
)
Siting Appeal)
)
(Consolidated)
vs.
)
)
THE CITY OF
KANKAKEE, ILLINOIS, CITY)
COUNCIL,
TOWN AND COUNTRY
)
UTILITIES,
INC., and KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
)
Respondents.
)
TABLE
OF CONTENTS
Title
Page
I. INTRODUCTION.
1
II
PROPER SERVICE WAS MADE
ON THE OWNERS
OF
PARCEL 13-16-23-400-001
1-4
III.
COUNTY’S ARGUMENT THAT TIMELY
SERVICE WAS
NOT
HAD
UPON THE ILLINOIS CENTRAL RAILROAD
COMPANY IS BROUGHT IN BAD
FAITH
4
IV
THE ARGUMENT THAT RETURN
RECEIPTS WERE SIGNED
BY INDIVIDUALS OTHER THAN THE
OWNERS OF THE
PROPERTY IS NOT BROUGHT
IN GOOD FAITH
4
V.
THE ACTIONS OF THE CITY CLERK DID NOT
PREVENT
ANYONE FROM FULLY PARTICIPATING
5-9
VI.
FAILURE TO ADMIT ALL MEMBERS
OF THE PUBLIC TO
THE HEARING ROOM ON THE FIRST NIGHT
WAS NOT
FUNDAMENTALLY
UNFAIR IN
LIGHT OF THE TOTALITY
OF THE CIRCUMSTANCES
9-17
VII. GOING BEYOND THE ENDING
SCHEDULED TIME ONCE IN•
ELEVEN DAYS DOES NOT RENDER THE PROCEEDINGS
FUNDAMENTALLY UNFAIR
17
VIII. THE CITY’S FAILURE TO FOLLOW ITS
OWN SITING
ORDINANCE NOT TRANSMITTING COPIES OF THE
SITING APPLICATION TO THE
COUNTY DID NOT RENDER
THE PROCEEDINGS FUNDAMENTALLY UNFAIR AND
WAS HARMLESS ERROR
18-19
IX
PRE-FILING CONTACTS BETWEEN TOWN
& COUNTRY
AND THE CITY
WERE
NOT IMPROPER
19-22
X.
TOWN & COUNTRY’S PRESENTATION AT
THE FEBRUARY
19,
2002 CITY COUNCIL
MEETING WAS NOT IMPROPER
OR PREJUDICIAL
22-24
XL
THE
CITY’S
REQUIREMENT
OF FOIA REQUESTS TO
SECURE COPIES OF PUBLIC
DOCUMENTS WAS NOT
FUNDAMENTALLY UNFAIR
25
TABLE
OF
CONTENTS
- Page
2
Title
Page
XII.
THE
HEARING OFFICER
WAS NOT
BIASED
25
XIII.
THE
CROSS-EXAMINATION
FORMAT
WAS
NOT UNFAIR
26
XIV.
THE CITY COUNCIL’S
FINDING
THAT THE
PROPOSED
FACILITY IS SO
LOCATED, DESIGNED,
AND
PROPOSED
TO
BE OPERATED
THAT THE
PUBLIC
HEALTH,
SAFETY,
AND
WELFARE
WILL
BE
PROTECTED
IS NOT AGAINST
THE MANIFEST
WEIGHT
OF THE EVIDENCE
26-28
XV.
THE
PROPOSAL IS CONSISTENT
WITH ALL RATIONAL
REQUIREMENTS
OF THE
COUNTY SOLID
WASTE
MANAGEMENT
PLAN
28-29
XVI. CONCLUSION
30-31
REPLY
BRIEF
OF
TOWN
&
COUNTRY
UTILITIES.
INC.
AND
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.
I.
INTRODUCTION
Because the
parties
filed
simultaneous
briefs,
many
of
the arguments
in the
Petitioners’
Briefs
have already
been
addressed,
and
for
some
of
those arguments,
no
additional
comment
is
necessary.
However,
to the extent
that Petitioners’
Briefs
make
unanticipated
arguments,
cite
new
authority
or
make
factual
or
legal
statements
which
are simply
wrong,
further comment
is
necessary,
and
this
Reply Brief
will
be
limited
to those
situations.
This
notwithstanding,
almost
everything
in Petitioners’
Briefs
has
already been
discussed
to some
extent
in
Town
& Country’s
Brief in chief,
so
that at a
minimum,
repetition
of
the basic
facts is unnecessary
at
this time.
II. PROPER
SERVICE
WAS MADE
ON
THE OWNERS
OF
PARCEL
13-16-23-400-001
Neither
of
Petitioners’
Briefs
addresses
the fact that
the
authentic
tax records
of
Kankakee
County had
two conflicting
listings
of the
owners of
this parcel
(known
also
as the
Skates/Bradshaw
Parcel).
In fact,
the
testimony
of Patricia
vonPerbandt
regarding
her
research
at
the County
Assessor’s
and
Treasurer’s
Offices
as well as
Town
&
Country
Exhibits
1, 2
and 3
admitted
at the
Board
fundamental
fairness
hearing,
make
it
clear
that
the
more current
and
up-
to- date
record
is the
one listing
Judith
Skates
at
the Onarga,
Illinois address
as the
owner.
Judith Skates
was
served
in a timely
fashion.
Instead,
Kankakee
County
argues
that
the Board
should reconsider
its
Hearing Officer’s
decision
to allow
testimony
by
Town
&
Country
regarding
jurisdiction.
This
is somewhat
curious
in light
of the
fact
that the
Board’s Order
in this
case
on
October
3,
2002
specifically
1
held
that, “The record before the City will be the exclusive basis
for all hearings except
when
considering issues of fundamental fairness or jurisdiction”
(PCB Order 10/3/02,
Page 3,
emphasis
added).
The
County apparently
does understand that jurisdictional
defects cannot
be
waived
and may be raised at any
time,
because it cites Ogle County Board
On Behalf of the
County
of Ogle
v.
Pollution Control Board, 272 Ill.App.3d
184, 649 N.E.2d 545
(
2
fld
Dist.
1995).
In that case,
extensive evidence
was received at the PCB hearing from
both sides on
jurisdiction.
The County
argues, however, that
the receipt of evidence on jurisdiction
at a PCB
hearing should only be allowed if initiated by a party claiming lack
ofjurisdiction. This
would
seem
to create a situation where the party needing
to establish jurisdiction can
be
blind-sided
at
any time
by
another party claiming lack of
jurisdiction after the evidentiary
portion of a hearing
has been concluded, precisely what happened
to Town & Country when the
County first alleged
lack ofjurisdiction
in
its
Proposed
Findings of Fact to the City Council.
To the
extent that Kankakee
County argues that evidence ofjurisdiction
should be
restricted to what was presented at the initial local siting hearing, Town
& Country would point
out once again that Paragraph
6
of Tom Volini
‘ s
Affidavit
submitted as Applicant’s Exhibit
#2 at
the local siting hearing states, “On February
18,
2002
I caused a Notice Of Request For
Location
Approval For
Pollution Control Facility
attached as Exhibit A (the Notice)
to be
mailed,
by
registered mail, return receipt requested, to all of the owners identified
above.” This includes
all
of the
owners listed in Rock Falls, Illinois,
on
the
outdated property index card for the
Skates/Bradshaw
parcel. The same
statement was subsequently made
by
Mr. Volini in
sworn
testimony subject to
cross-examination
at the
Board
Hearing.
Patricia
vonPerbandt’
s testimony at the Board Hearing is factually misstated at pages
37
and 38 of
Kankakee County’s Brief where
the County states, “Five of the owners as identified
by
2
the tax records
were
never
sent
notice
as there is no return receipt for the
Prophet Road property
contained
in the Applicant’s Exhibit
#7.
This fact was even confirmed
by a witness called
by the
Applicant, Patricia vonPerbandt, who testified that receipts
indicated to who notices were
sent...”
This
is misleading since the Affidavit of Service and
the testimony of Ms. vonPerbandt
indicate
that notices were sent to
owners as confirmed in the following exchange
between
the County
Attorney and Ms. vonPerbandt:
Q.
(By Mr. Porter) Now you did not send out any notices that aren’t
reflected
by
those receipts; is that correct?
A. (By Ms. vonPerbandt) I sent
out
notices that
were
reflected on
the list that was
given
to
me.
Q.
(By Mr. Porter) And for each of those notices,
we have a
receipt...
strike that. For every notice
you
sent
out,
there
is a receipt attached; is that
right?
A.(By Ms. vonPerbandt) I’m not sure if there is a receipt for
every notice.
I’m
not sure. If it matches my list, then there is.
(Bd. Tr 11-6
296,297)
The list referred to by
the witness
is, of course, the complete list of all the parcels set forth
in the
original affidavit of service.
In
its
argument the County also conveniently forgets the fact that Tom Volini
‘s
testimony
at
the Board Hearing explained the apparent
discrepancy
between Paragraphs 6 and
7
in his
Affidavit Of Service, namely that the non-acceptors of the registered mail on this parcel were
not
identified since
service on Skates
was
correctly deemed
to be acceptance by the
correct
owner.
3
The County’s reference on Page 5 of its Brief
to Ms. vonPerbandt’s
obvious “biases”
is
unwarranted and not supported
by
anything
in
the
record.
III. COUNTY’S ARGUMENT THAT TIMELY
SERVICE WAS
NOT
HAD
UPON THE
ILLINOIS CENTRAL RAILROAD COMPANY
IS BROUGHT IN BAD FAITH
The
County
originally brought
this argument in its proposed Findings
Of Fact to the
Kankakee City Council. In response, the City Council made
a special Finding Of Fact that
the
Railroad
was
timely served on February
20, 2002 (C3289). In fact, registered
mail sent to the
railroad’s agent was not promptly claimed, but the authentic
address for the Railroad’s
parcels as
shown is in Tom Volini’s Affidavit Of Service is actually 17641
Ashland Avenue,
Homewood,
Illinois, and service at this address was timely received
(Applicant’s
Exhibit #2). These
facts are
simply ignored in the County’s Brief.
IV. THE ARGUMENT THAT RETURN RECEIPTS
WERE SIGNED BY
INDIVIDUALS
OTHER
THAN
THE OWNERS OF THE PROPERTY
IS NOT BROUGHT IN
GOOD FAITH.
Experienced
counsel for the
County knows that the law is well settled on this issue.
To
the extent that the County now attempts to argue that Sam DiMaggio
v. Solid Waste Agency
Of
Northern Cook
County,
PCB 89-138 (January 11, 1990)
was wrongly decided, is it also arguing
that City of Columbia, et al. v. County of
St.
Clair and Browning
Ferris Industries of Illinois,
Inc, PCB 85-223,
85-177, 85-220
Consolidated (April 3, 1986) was wrongly decided?
4
V.
THE ACTIONS OF THE CITY CLERK
DID NOT PREVENT
ANYONE
FROM FULLY PARTICIPATING
The County
argues
that Darrell Bruck “was turned away
by
the City Clerk’s Office
which
was
operating
under the understanding that all participants had to register at least five days
before the hearing...” (County
Brief, Page 41). It’s not at all clear from
a
careful
review
of the
record that Mr. Bruck was, or is, a
“victimized citizen.”
The County’s argument is based upon
Bruck’s public comment on June
27
th
that he
was
aware
of
conflicting
registration requirements,
after which he called the City Clerk’s
Office and
was
told that it
was too
late.
(TR 1549). In his
public comment, Mr.
Bruck admitted that he later learned that the Hearing Officer had changed
the sign-up rules of the City’s Amended
Siting Ordinance
to the more lenient requirements in the
Applicant’s published
legal notice,
but
at
the time the Hearing Officer announced it, he
was out
in the hall and had
not
heard. (TR. 1550).
At the
Board Hearing, Bruck did not testify that he was turned away
by
the
Clerk. He did
indicate that even though he had determined
before
the hearings
to participate that he never
signed up,
or attempted to after the hearings had begun (BcLTR 11-4 100). Even though Bruck
got
to
the hearings five to ten minutes late
(the hearing
was
scheduled
to start at 8:00 P.M.) on
the first night when the
room had, according to the County’s Brief, already been full for more
than an
hour, he admitted that he did get into the hearing room by about 10:00 p.m. He attended
thereafter,
and despite this, he never registered as an Objector, nor did he ever talk to anyone
about
registering
as
an Objector. (Bd. TR.11-4 110, 113). Mr. Bruck also never read the
transcript
of the first night’s hearings even though he
knew
the same was available to him. (Bd.
TR. 11-4 114).
5
The
County,
and to some extent Mr. Bruck,
would have
you believe that circumstances
conspired to disenfranchise Mr. Bruck from participating.
It is curious that he never
asked to
participate
after he started attending the hearings even though
the Hearing Officer
actually
approached
Mrs. O’Dell on the third night because word of her
discussing
the possibility
of
participating during a recess had
gotten
back
to
him.
(Bd. TR. 11-6
83, 84). The County’s
Brief erroneously describes this situation where Mrs.
O’Dell’s participation
was,
in fact,
solicited
by
the Hearing Officer. Instead the
County would have the Board
believe that, “It
was
not until the third or fourth day of the hearing until
Mrs. O’Dell was
successful in convincing
Hearing Officer Bohlen that she
should have been recognized as
a
participant.”
(County Brief,
Page
12). In any case, Mr. Bruck’s public comment
of June
27
th
also indicated that he
was the
President of OUTRAGE, an organization described
by
another
OUTRAGE
Officer, Keith
Runyon, as a “citizen’s governmental accountability group.”
(Bd. TR. 11-4 177,
TR 1549).
Mr. Runyon also arrived late,
but
since
he had registered, he was admitted
to the hearing room
upon announcing his identity to a police officer. (Bd.
TR. 11-4 179, 181). Similarly,
Richard
Murray,
another OUTRAGE affiliate, had
registered as an Objector and, in fact,
cross-examined
every witness during the hearings. (Bd. TR.
11-6 115).
In light of the foregoing, it is difficult
to imagine how Mr. Bruck, President
of a
governmental accountability citizens’
group,
failed to get himself included
as a participant when
a
fellow OUTRAGE Officer and another OUTRAGE
affiliate were
two of the most active
participants during the hearing. One cannot help but wonder whether Mr. Bruck
intentionally
exploited
the conflict between the City’s five day registration requirement and the Pre-Hearing
Notice
so
as to create an appealable issue. Certainly Mr. Bruck
was present in the hearing room
at the start of the third night (June 1
9
th)
when the Hearing Officer received
and read into the
6
record
a
Motion
by
his cohorts,
Mr’s Runyon
and Murray, on that
very
subject
and on the further
subject
of the fact that people
out in the hail
on the first night didn’t
all
hear the
Hearing
Officer’s decision to
extend registration to
the first night.
(TR.
354-356).
Appended
to the
Motion from Runyon
and Murray as evidence
of the
confusion
regarding registration
requirements
was
a
copy
of Mrs. O’Dell’s
letter
expressing
the desire
“to speak.” Mr. Bruck,
however, continued
to say
nothing
to
anyone
in the hearing
about
wanting
to participate
even
though it was
later on the same evening
that the Hearing
Officer sought
out Mrs. O’Dell
to
solicit clarification
about her participation.
At
the start of the proceedings
on
the
following
evening (June
2
Oth)
the Hearing Officer
publically
announced that he
had
added
Mrs.
O’Dell
to
the roster of
registered Objectors
and still
Mr. Bruck
said nothing. (TR.
502).
Given
Mr.
Bruck’s organizational
affiliations
and
his numerous
opportunities to
get himself
listed as an
Objector,
no one can seriously
argue that he
was
prevented
from
participating simply
due to a
phone
call to the City Clerk’s
Office.
The County also alleges
that
other
members
of the public
that
attempted
to register
during the week
of
June l2
to June
17
th
were turned away
by
the Clerk’s
Office. However,
there are
no
other
individuals
who came
forward
to
testify that they attempted
to
register
during
this
five
day
period. The County’s
Brief also alleges
that the Clerk knew
that registration
could
occur until
the
time of the hearing
when the record
does not support this.
(County Brief,
Page
41).
The
County’s continuous
references to “armed
guards” don’t make
sense and are
clearly
intended
to be
prejudicial in light
of the fact that no
one
testified
at the Board Hearing
that
the
police did
anything but their
jobs,
or
acted
unprofessionally
in maintaining
the Council
Chambers
at its legal maximum
capacity.
7
The County’s Brief again erroneously alleges
that Mrs. O’Dell
could not
get in the
hearing room the first night, and
that
Mr. Power
ignored her request
to ask questions the first
night. (County Brief, Page 43). First of all, Mrs. O’Dell
admitted asking
a representative at
the
Clerk’s Office what she was “supposed to do to be able to talk”
(Bd. TR. 11-6
33).
It is
difficult
to argue
that the Clerk
gave
misinformation
in response to such
a vague and misleading
request.
Mrs.
O’Dell
was
an Objector sufficiently
motivated and organized
to arrange for
videotaping
on
the first night, and ultimately
she may have excluded herself
from the hearing
room after two or three trips in and out without difficulty
(Bd. TR. 11-6
79).
Mrs. O’Dell
also
admitted under cross-examination that she did
not ask Assistant City Attorney Patrick
Power to
participate on the first
night.
(Bd. TR. 11-6 81). One has to wonder why, if
Mrs. O’Dell was
excluded from the hearing room the first night, she was in fact able
to have conversations
with
the
Assistant City Attorney in the hearing
room. Perhaps she re-entered
the hearing room
during
breaks when she was not busy circulating her Petition in
opposition to the landfill. Mrs.
O’Dell’s testimony
should further
be taken in the context of her apparent
association with the
OUTRAGE members, Keith Runyon and Richard Murray, as her original
letter to the Clerk
was
an exhibit appended to their Motion To Quash on June 1
9
th
As already pointed out regarding her alleged need
to convince the Hearing Officer
of her
right to participate, the County has taken unjustified license with the facts related
to Mrs. O’Dell.
The County states that she asked both the City Clerk and Mr. Bohlen
before
the hearing about
possibly inadequate room size, (County Brief, Page 12),
but there is nothing whatsoever in
the
record to support this untrue statement. The
County’s
Brief
also states that no one in the hallway
on the first night heard any of the City’s announcements regarding
right
to participate. (County
8
Brief, Page
13).
However,
the first time Mrs. O’Dell
was asked about this at the
Board Hearing,
the exchange
went as
follows:
Q.
Part of that
time,
do you remember anybody coming
down from
the
podium and conveying information
to the folks that assembled
outside
telling them what was going on, what the
rules were, whether they
could
sign up and so forth?
A. (Mrs.
O’Dell) At
two different points, I heard someone in
the
hall
give that
information.
(Bd. TR 11-6 52).
Only after a lengthy series of subsequent leading
questions did Mrs. O’Dell
“rehabilitate”
her testimony by remembering that she didn’t hear what
was said. In contrast, the testimony
of
Pat Power,
Assistant City
Attorney, is consistent with Mrs.
O’Dell’s first recollection
on this
point.
VI.
FAILURE TO ADMIT ALL
MEMBERS
OF THE PUBLIC
TO
THE HEARING
ROOM ON THE FIRST NIGHT WAS
NOT FUNDAMENTALLY
UNFAIR
IN LIGHT OF THE TOTALITY OF THE
CIRCUMSTANCES
Neither Town & Country nor the City has ever disputed that
the scheduled hearing
room
was
inadequate in
size
to seat
everyone
who wanted to attend on the first night
of the hearings.
The County Brief alleges that “the PCB has previously ruled that
a lack of adequate seating
can
lead to a finding
of fundamental
unfairness in the public hearing” and
cites in support of that
proposition Daly v. Village of Robbins, PCB 93-52, PCB
93-54 (July 1, 1993) (County Brief,
Page 43). In fact,
Daly
does
not
support
that proposition. The County then
argues that in
Jjty
Of Columbia v.
County
Of St.
Clair,
PCB 85-177 (April 3, 1986), the Board
considered the lack
of seating a
“dampening prejudicial
effect on the hearing attendees.”
(County
Brief, Page 43).
In fact, that is a misstatement of the holding in City
of Columbia where the Board
found that the
County in that case did not act unreasonably in
commencing a hearing with an overflow
crowd.
9
In addition to the hearing room being too small, however,
the Board also found
that the hearing
lasted oniy
one night, concluding between 2:00 a.m. and 2:30
a.m.,
and that
during said hearing
there were restrictions on cross-examination and public comment time.
The Board found
that it
was
the
combination of these factors which had
a “dampening prejudicial effect
on the hearing
attendees.”
The distinction between the instant case and City
Of Columbia is that
by
only
starting the
hearing with an overflow crowd, the City Council here was able to cure the
error in subsequent
nights. Only the testimony of one witness was missed, that testimony
was made available
to
everyone two days later, and that witness’s testimony
was essentially duplicated
by
another
witness (Devin Moose). Moreover, in deciding who
to
let in
and who to leave out, the City
Council made a good faith attempt to admit all attendees who had made known
their
desire to
be
participants prior to the first night. The hearings in this case continued over
eleven
days and
nights
mostly because of lengthy cross-examination
by
all who cared
to do so.
The County of Kankakee argues that the factual scenario in
the instant case is even worse
than
in
City Of Columbia, because the City knew that their hearing
room would
not be large
enough
to
accommodate all of the attendees. This assertion is not supported
by
the record.
Hearing Officer,
Christopher Bohien, testified that he did not
recall being confronted at his
office
by
CRIME
Spokesperson, Doris
O’Connor,
about whether he had a back-up plan for
a
hearing area (Bd.
TR 11-4 320). Bohien
testified that there were 105 spectator chairs in
addition
to
room for all registered participants, and that he knew of no other alternative
facility
with
air-conditioning. He also testified that
at
the Town
&
Country
Annexation Hearings which
had been just as controversial, there had still been room for everyone and therefore he didn’t
expect that the City
Council Chambers
would
not
be large enough. (Bd. TR. 11-4
3
20-322).
10
Frankly, both Waste
Management
and the County
have
over dramatized
what
occurred
on
the first night of the hearing.
Aside
from
the fact that the
most vocal
complainers
about lack
of public participation
were the officers
and spokes-people
of the well
organized and
effectively
represented
citizens’ groups joined
by the four Attorney’s
for Kankakee
County sitting
in the
front of
the hearing room, the
City did what it
could under the circumstances
to assure full
participation.
The assertion in
the
Waste Management
Brief that
the City never
notified
the
crowd outside the
room
of
its
rights is rebutted
by
the
fact
that written
rules
of
conduct were
handed
out on the first night both
inside
and
outside the
Council
Chambers.
(TR 361).
Town
&
Country does not take
issue
with the fact that
between 50
and 125 people
didn’t get into the
room, but does take issue
with
Waste Management’s
representation
that
this group included
“many of whom had
pre-registered.”
(Waste Management
Brief,
Page
18). The only
even
arguably pre-registered
person
who
didn’t get in on night
one
was Mrs.
O’Dell whose
testimonial
inconsistencies
and biases
have already
been
extensively
discussed. It
is also
of note
that
this appeal is not brought
by
any citizen or
citizens’
group
which claims
that their rights
were
violated, but
by
the
County and its
landfill operator who
are publicly
committed
to
stopping
the City from siting
a landfill
at
all
costs.
The
Board has previously
found
that chaotic hearing
conditions
including
threats
to
members of the public
did not have
a sufficiently chilling
effect to render
proceedings
fundamentally
unfair.
Daly
v.
Village
of Robbins,
PCB 93-52, PCB
93-54 (July 1, 1993),
Affirmed 264 Ill.App.3d
968,
637
N.E.2d
1153
(1st
Dist. 1994). The County’s
Brief cavalierly
speaks about members
of the public being
“banished
to the hallway” citing
Mrs. Elliott
as an
example.
(County
Brief,
page
13), when in fact her
testimony
at
the
Board Hearing indicates
11
that she may have left the
room
on her own, certainly out of frustration
but not necessarily out of
compulsion. (Ba. TR. 1 1-4 61).
Town
&
Country regrets that members of the public were frustrated,
hot, and unhappy,
but urges the Board to remember that this is not the same as members
of the public being denied
their
fundamental right to participate. One also has
to
wonder
what
more members of the
public
could have done to make the best out of a bad situation and to insure their
personal participatory
rights. In weighing the reasonableness of the City’s reaction
to
the
June 1
7
th
overcrowding, the
Board is asked to compare the City’s options versus the public’s options,
and to do so keeping in
mind the
recent pronouncement of the Third District Appellate
Court that “a non-applicant
who
participates in a local pollution control facility siting hearing has no property interest
at stake
enabling him to the protection afforded
by
the constitutional guarantee
of due process,” Land
&
Lakes Company v.
Illinois Pollution
Control Board, 319 Ill.App.3d 41, 743 N.E.2d
188
(3(
Dist.
2000). At the Board
Fundamental
Fairness Hearing, the City’s Hearing
Officer, Christopher
Bohlen,
was
grilled at length
by
the County’s Attorneys
about
how he responded to the
overcrowding on June
th
17
and also
what he did to insure the right of people
to
participate.
A
review of that portion of the transcript probably says more than any argument
about the
reasonableness of the City’s reaction in light of the totality of the circumstances:
Q.
Isn’t it true that
you
made
an announcement
from the
bench that people could sign-in throughout the night
to appear?
A.
Yes.
Q.
And isn’t it true that that announcement
could not be
heard
from the hallway?
A.
That announcement was repeated
by
Mr. Power
in the
hallway.
12
Q.
How do you know that that announcement
was repeated
by Mr. Power
in the hallway?
A.
I asked him
to go
out to make
that announcement. I was
also informed by the police officers that that announcement
was
made by Mr.
Power
so
that’s how
I believed it was made.
Q.
When did
you
ask Mr.
Power to go make that announcement?
A.
It was pretty
early
on because I note in the — I believe there’s
an indication in the transcript that I said
to
sign-up with
Mr. Power or
that somebody indicated that that’s what they were told is
to
sign-up
with Mr.
Power.
Q.
Was your direction to Mr. Power made before or after my
motions
to
quash?
A.
I believe it was before because I believe Officer Kato
was
asked to read off the names of those persons who had already signed
up out
in the hallway and
I
believe
it was at that same time that I asked
Mr. Power to
go out
and check in the hallway
because
I didn’t want to
rely on just the police officer reading the names.
Q.
You
do
not know whether the people in the
hallway heard Mr.
Power make such announcement, do you?
A.
I don’t know whether they did or didn’t.
Q.
You
do
not know how many people had simply
turned around
and left after being denied access
by
the police before Mr. Power
ever
made it out to the hallway assuming that he actually did?
A.
Nobody ever indicated to me that they did that.
Q.
You don’t know if that occurred, is that correct?
A.
I don’t one way or the other except nobody ever said
to
me that
they did that.
Q.
So you don’t know whether or not your announcement was ever
made to
all
of
the
people in the
hallway that they could sign-in
and
participate, correct?
13
A.
I know
it was made to everybody in the hallway
because Mr.
Power indicated later that it was and the police
officer also verified that
it was,
so
I know that it
was
made
to everybody in the hallway.
Q.
Do you have an explanation to the people
that say they never
heard such announcement?
A.
No.
Q.
The request
you made of Mr. Power as not on
the record,
correct?
A.
That’s correct.
Q.
You
don’t know exactly what was said to each person
in the
hallway regarding
whether
or not they could come in and register
to participate, is that right?
A.
No. But I
do
know that people came
and requested to
participate after
we started the proceedings.
Q.
We know that Mr. Runyon did,
is that correct?
A.
Mr. Runyon actually requested — had indicated
he wanted
to be
an
objector
prior to the proceeding.
Q.
Who exactly
came in after the proceedings
started
and
requested to be an objector?
A.
It’s my recollection that Elizabeth
Fleming-Weber was
originally not going to be an objector and then
came
in in the midst
of the proceedings that night and indicated that she
was. Her name
got
added to
the list,
I do recall, because there was a question
as to
whether she was or
was not. She
did
come
in and indicate — I
do
know that she was late in arriving and she did
come in in the midst
of the proceedings and indicate that she wanted
to be a participant. I
know also that Ms. O’Dell
and
brought
to me
by
Doris O’Connor and
indicated, and that happened on the Wednesday
of the proceeding,
indicating that Ms. O’Dell
wanted then to participate and she commenced
her participation on Thursday.
Q.
Do you know whether Ms. O’Dell had actually previously
indicated
a
desire
to participate
that fell
on deaf ears?
14
A.
I know that she had sent
me a letter saying she wanted
to speak
at
the proceedings. Those who indicated
to
me that
they wanted
to speak
at the
proceedings
were listed as those who were going
to
make
public
statements and based upon that, there
were
a number of people that had
sent me letters saying they wanted
to
speak and
because the rules
Differentiated
between
those that wanted to speak and those who
wanted
to
present evidence and cross-examine witnesses.
I took her and
understood her to be a request
to
speak at the public
comment
session on
the Thursday of the second week.
Q.
What rules are you referring to that drew some type of distinction
between those who wanted
to
speak and those
who wanted to participate?
A.
The rules of the siting — the rules and procedures of
the siting —
part of the siting ordinance.
Q.
That
was
the rule
that wasn’t followed, is that correct?
A.
No.
All
of those rules were followed. There was an allowance
made
in the one instance. All of the rules and
procedures, to my
knowledge, were followed. There was an allowance made
that we
would not bar those
who wanted to
participate
by cross-examining
and presenting evidence even though they hadn’t signed
up by the — on
the fifth day prior to the hearing, but, to my knowledge, those rules
were
followed.
Q.
So
there were a variety of people that had filled
out a
document
with the city
clerk’s
office five days before the hearing but because the
document said they wanted to speak rather than participate their names
were
never called out as being participants, is that correct?
A.
Correct. There were a number who said they wanted
to
participate
who
then changed their minds and said they really
only wanted to speak.
Q.
Are the names
of the
individuals that
actually filled
out a document
with
the city clerk five
days
ahead of time contained
at pages 2223 through
2234 of the record?
A.
Yes. And I believe each of those people did, in fact,
speak at the
public comment session
on that
Thursday
evening.
15
Q.
So if I’m understanding correctly, unless someone
used the magic
word
participate
in that
document
they filed five days ahead of time
they
weren’t
considered
to be
an
objector, a supporter, or a participant, is that
correct?
A.
I don’t consider — I
guess
I’m
a
little
hesitant — the magic word
comment is offensive to me. I don’t consider it
a
magic
word. I think
you’re
in a legal process and a legal proceeding and those rules were
followed and if
you
indicated
you
wanted
to be an objector, present
evidence or cross-examine, we certainly allowed anybody
to do
that
that indicated that was their desire. If you said
you
wanted
to
speak,
we
put you in the public comment session and everybody who wanted to
speak
did, in
fact,
speak and none of those
people, except for
Pat O’Dell,
ever
indicated and almost all of them
— we
heard Mr. Thompsen
here
today,
almost all of them who indicated they wanted to speak, not one
of
them other than Pat O’Dell, ever indicated
they
changed their mind and
most of them were present during many days of the hearing.
Q.
While
Mr.
Power
was apparently making some announcement
in the hallway, the proceedings were continuing
in council chambers,
is that correct?
A.
I think if
you
look in the transcript there’s
a point where I ask
Officer Kato to read the names and I think it
was at that point that I also
asked Pat Power to go out in the hallway.
Q.
Okay. And the proceedings were continuing while these names
were being read
in the hallway and Mr.
Power was allegedly making an
announcement, is that right?
A.
No, that’s not right. We stopped until that portion — until they
read
the
names and Mr.
Power
returned.
(Bd. TR. 11-4
326-334).
The County, in its Brief, argues lastly that “it is particularly egregious in this case
because the people that were banished to the hallway appear to be almost entirely composed
of
people that would be neighbors to the proposed facility ... the citizens that are actually
impacted
most were the
very individuals that the City would not allow enter
the hearing room on June 17,
2002.”
(County Brief,
Page
44,
45).
The
above
statement
is so devoid of support in the record
that it draws the last measure of credibility from the County’s position in this
appeal.
16
Coincidentally or otherwise, the County’s two
principal fairness witnesses,
Pat O’Dell and
Darrell Bruck along with their cohort, Keith Runyon,
are all from Bourbonnais
which is
Northwest
of
the City of Kankakee whereas the
proposed site is on the Southeast
edge of the
City. (Bd. TR. 11-4 98,176 11-6 28). As already mentioned,
none of these “most impacted”
citizens
or citizens’ groups appealed the City
Councils’ unanimous decision other than
Mr.
Sandberg who was a full participant during the
siting
hearing and is really only interested
in the
hydro-geologic characterization. Perhaps the
actual “most impacted” participants
are Kankakee
Count and Waste
Management..
VII. GOING BEYOND THE ENDING SCHEDULED TIME
ONCE IN ELEVEN DAYS
DOES
NOT RENDER
THE PROCEEDINGS FUNDAMENTALLY
UNFAIR
The County cites no law for its argument, but nonetheless
states that failure to end
at
10:00
p.m. on the first night of the hearings is fundamentally unfair.
No matter when hearings
are
held, someone
will
be
inconvenienced.
Evening hearings, which are often more
accessible
to the
working
public
than daytime hearings,
are always at risk of running late, and late nights
sometimes
go
with the territory. In the
instant case, that happened once in eleven
days when the
first night’s hearing went until 12:30 a.m. A transcript of the first night’s
hearing
was made
available
to
all to
review, and no harm
was done.
It should
be noted from a review of the record
that
the bulk of
the time
spent
on the
first night was in cross-examination
by
multiple
Objectors.
17
VIII.
THE
CITY’S FAILURE
TO FOLLOW
ITS OWN SITING
ORDINANCE
NOT
TRANSMITTING
COPIES
OF THE SITING
APPLICATION
TO THE
COUNTY
DID NOT RENDER
THE PROCEEDINGS
FUNDAMENTALLY
UNFAIR
AND WAS HARMLESS
ERROR
Waste Management
Of Illinois
v. Pollution Control Board,
175 I11.App.3d
1023,
530
N.E.2d
682 (2’
Dist.
1988), long ago established
the principle
that a
county or city may
establish
its own siting procedures
to supplement
those contained
in Section
39.2 of the Act
so
long
as
those procedures
are not inconsistent with
fundamental
fairness.
This does not mean that
the
county or city must
follow
those
procedures, or that
failure
to follow
them is necessarily
unfair.
Once
again
the County in its Brief
makes a legal
citation where the
case cited
really has nothing
to do with
the principle enunciated.
In this
case
the County states,
“In
Waste
Management,
the
IPCB
found
that failure
to
provide
access to
the application
was a fatal flaw from
a statutory
perspective
and constituted fundamental
unfairness.
Waste Management,.
530
N.E.2d
at 693.”
(County Brief, Page 48).
In
fact, in Waste
Management,
the Pollution
Control Board affirmed
the
County Board’s finding
that the
Applicant
had failed
to establish need
for
a
new
regional
pollution control
facility. The case
has nothing
to do with public access
to the siting
application
and actually,
the Appellate Court which
affirmed
the Pollution Control
Board found
that it
was
harmless error
for the hearing
officer
to violate
the express
language
of the local siting
ordinance
by
allowing
a witness to introduce
exhibits
in violation of the
“ten-day
rule.”
(530 N.E.2d
at
694).
In affirming,
the Appellate Court
relied on
Waste
Management’s failure
to
articulate
how it
was prejudiced, meaning
how the outcome
was altered
by
the hearing officer’s
error.
The other
cases that are cited
by
the
County
on this issue also
do
not
support the
proposition for which
they
are cited,
but
they
at least
deal with the general
subject
matter.
Both
Residents Against
A Polluted Environment
v. County
of LaSalle, PCB 96-243
and American
18
Bottom
Conservancy
v. Fairmount, PCB 00-200
deal with denying
the public access
to
the
application. In ABC, that denial was cured, but only
two weeks prior to the start
of the siting
hearing, and the Board found that by that time the right
of an objector to adequately
prepare had
been prejudiced. The unfairness in ABC was compounded
by
the fact that the Village
had
attempted
to charge an Objector a higher price for
a copy of the application than it had charged
someone else.
In the instant case, the City is not accused
of denying anyone access to the Application.
If
the City had no local siting ordinance whatsoever,
there
would be no complaint
because the
County
was
not denied access
to
the Application
and because the County
was
treated
the same as
everyone else requesting a copy. The record of the siting hearings,
itself, does not reveal any lack
of preparation
by
the County, nor
does
the
County even argue in its Brief that it
was prejudiced as
a
matter of fact, instead relying on American
Bottom
Conservancy for
support
of
the proposition
that it
was
prejudiced as a matter of law.
In addition to the fact that in the instant
case the County
requested
and received the Application almost
two months before the hearing whereas in ABC
the Objector got it two weeks before the hearing, what most importantly
distinguishes
the cases is
that the County, here, could have gotten the Application
or viewed it whenever it chose
to do so..
IX. PRE-FILING CONTACTS BETWEEN
TOWN & COUNTRY AND THE
CITY
WERE NOT IMPROPER
Petitioners
arguments
fall into two categories, the pre-filing
contacts between the
Applicant and the City before
the February
19
th
City Council Meeting
and the Applicant’s
presentation to the City Council on February
19, 2002. The first category
of pre-filing contacts,
which consists of contacts during
the annexation process, negotiation
of a
Host
Agreement, and
19
the City Attorney receiving
input
on
Solid
Waste
Management
Plans
and a Local Siting Hearing
Ordinance
from
the
Applicant
as well
as others, are routine
and occur
in virtually every
case. The
County’s argument
that these are prejudicial
is not
made in good faith
because it flies
in the face
of well established
law. In addition
to
E
& E Hauling
v. Pollution
Control Board,
115 Ill.App.3d
898, 451 N.E.2d
555
(
2
fld
Dist. 1983),
Fairview
Area Citizens Task
Force
v. Pollution
Control
Board, 198 Ill.App.3d.
541,
555 N.E.2d 1178
(31(1
Dist. 1990),
and Southwest Energy
Corp.
v.
Illinois
Pollution Control
Board,
275 Ill.App.3d
64, 655 N.E.2d
504
(
4
th
Dist.
1995), which all
grant
approval
to
the various
and
customary
pre-fihing contacts
between the
parties, Town
&
Country
would
also cite
to Concerned Adjoining
Landowners
v. Pollution
Control Board, 288
Ill.App.3d
565, 680
N.E.2d
810 (June,
1997). In Concerned
Adjoining
Landowners,
not only
did
the city annex a piece
of land for the sole
purpose of exercising
siting jurisdiction,
but the
city
actually bought the
land which it annexed.
Repeating
and restating its arguments
three
or four
times as occurs in
the County’s Brief
doesn’t change
the fact
that
what they
are missing
is
any
evidence of collusion,
dishonest dealings
or
actual bias.
Regarding the
Mayor’s advocating
for the project,
Section
39.2
was specifically amended
to
allow decision-makers
to express
opinions
on
a
proposed
application
without becoming
disqualified.
It should also
be
noted
that the
Mayor was not one of
the decision-makers,
and that
he
never advocated
that the City
Council Members
should
do anything but their
duty under the
statute.
Petitioners next
cite to an allegedly
improper
and
prejudicial visit
to
other
landfill
facilities hosted
by
Town
&
Country six
months prior to
the filing of the Application.
The
County acknowledges
in its Brief that all of
the
cases
it
cites
deal with the decision-makers
being
taken
to
another
facility while
an application
is pending. The County,
however,
argues that what
20
is critical is that no
opponents were invited
on
this
bus
trip.
That
fact
is simply not
established.
The
County relies
on the testimony of Christopher
Bohlen,
the Hearing
Officer, whose
testimony
is properly read
as
Mr. Bohien not knowing
who was
invited
because
he didn’t concern
himself
with the
matter (Bd TR 11-6 322).
It is simply
not fair for the County
to equate
this
bus
trip,
about which
little is known, to
a
facility which
was never mentioned
during the
siting
hearings
with
the
extensive post-filing out-of-state
trip in
Concerned Citizens
v.
City
of
Havana, PCB
94-
44 (May
19, 1994), where the
facility visited
by the city council members
represented
the model
in the evidence at the
siting
hearing.
The County refers
to a pre-fihing letter
from
Town
& Country’s Attorney
to the City
Attorney as the
“smoking
gun” proving bias.
(County Brief,
Page 51). This
seems
both
disingenuous
and overly
dramatic, because
the pre-filing
technical contacts
between non-decision
makers in this instance
seems to
be
considerably
more benign
than
the
pre-filing substantive
review
successfully
pioneered
by the
County’s attorneys
when
they represented
Will
County,
which activity
was approved
by
the
Court in Land
& Lakes Company
v. Illinois Pollution
Control
Board, 319 Ill.App.3d
41, 743 N.E.2d
188
(
3
rd
Dist.
2000).
Moreover,
with
regard
to
the
instant
letter, Christopher
Bohlen
testified
that
he received
it
by
fax the
day before the Application
was
filed,
and that there were no
follow-up discussions
on any of
the
subject
matter
of the letter after
filing
of
the Application.
(Bd.
TR. 11-4
243, 247). Bohlen
also testified
that he secured
sample
draft
ordinances from a number
of sources
including the Applicant.
(Bd.
TR. 11-4
303).
This
is
hardly
the same as the situation
in City
of Havana, cited
by
the
County on
this issue,
where
the
siting
applicant
was
a party to the fee agreement
with
the hearing
officer,
and the hearing
officer
sent a draft version
of an ordinance to the
applicant
for his review.
The County
also, in its shotgun
approach
to
the arguments,
cites the
March 12, 2002
letter
21
from Town & Country’s Attorney to the City Attorney as an impermissible
post-filing ex parte
contact. The basis is that although the letter was also sent
by
fax,
it may not have been received
by
regular mail until the day of the filing or the day after. Regardless,
Christopher
Bohlen
testified he recalled receiving the fax before the filing and he never followed-up
on it in any
event. If Town & Country’s Attorney and the City Attorney had been doing more talking
about
the siting ordinance after the Siting Application was filed, Town
&
Country
might have been
made aware of the April Amendment to that Siting Hearing Ordinance which
changed the
registration requirements, and the parties could have avoided all of the unpleasantness arising
out
of the disparity
between the Applicant’s Pre-Hearing Notice
and the City’s Siting Hearing
Ordinance.
X. TOWN &
COUNTRY’S PRESENTATION AT THE
FEBRUARY 19. 2002 CITY
COUNCIL
MEETING WAS NOT IMPROPER OR PREJUDICIAL
Rather than reiterate the obvious argument that once again
both Waste
Management
and
especially the County take
isolated statements from Town
& Country’s presentation at the
February 1
9
th
City Council
Meeting
out of
context, it is
sufficient to point out that the minutes of
that meeting are attached in their entirety to the County’s Brief, and the Board can review them in
their entirety to
determine the complete context. However, a few blatantly false statements in
Petitioners’ Briefs need to be corrected. References on Page 6 of Waste Management’s Brief that
the
public was not given notice or permitted to attend and the further reference to this City
Council Meeting as a
“closed
door
meeting” are simply not
supported by the
record.
Mayor
Green testified that
industry
presentations to the City Council were regular occurrences, and that
Town
&
Country was, in fact, on the
meeting agenda of a regularly scheduled, public City
22
Council
Meeting.
(Bd. TR. 1
1-6 176, 177, 182, 184).
This was a public City
Council Meeting
and, in fact, the minutes
of the Meeting
reflect that the Mayor
opened the Meeting after
Town &
Country’s presentation to questions from both the Planning
Commission and the press,
and at
least one reporter asked Tom Volini a question.
(C3 156, 3158). Exaggerating
the facts doesn’t
change them.
It
is the position of Town
&
Country
that
this Board’s previous
Order
in Residents
Against A Polluted Environment v. Landcomp
Corporation and County of LaSalle,
PCB 96-243
(July 18, 1996) closed the door on consideration
of pre-filing contacts
absent some preliminary
showing of collusion or illegal activity. In response,
the County cites Land
& Lakes Company
v.
PCB 319 Ill.App.3d 41, 743 N.E.2d
188 (3 Dist. 2000). At
best, Land & Lakes supports
the
proposition that pre-filing contacts may
be
scrutinized
to determine if there
is pre-filing collusion
between the applicant and the decision-maker.
However,
the Appellants in Land
& Lakes, in
apparent acknowledgment
of
the
bright line test regarding pre-filing
contacts announced in
Residents Against A Polluted Environment did not
argue
that the process complained
of
represented ex parte contacts or pre-judgment
of adjudicative facts. (743 N.E.2d
at 194). In Land
& Lakes, the County’s technical experts conducted a pre-fihing
review of a draft siting application
whereby suggestions for revision were made
to the applicant, some of which
suggestions were
incorporated in the final application.
The Appellants argued that this
gave the applicant an unfair
advantage
at
the siting hearing and virtually
rendered
the siting hearing
meaningless.
The proof
they cited was that the report prepared
by the County’s technical expert was ultimately
adopted
almost
verbatim
by
the County. Here,
unlike in Land & Lakes, the Applicant’s pre-filing
presentation was out in the open rather than
behind
closed
doors, and the Applicant received
no
input or feedback from the decision-maker or the decision-maker’s
representatives. Here, Town
23
&
Country’s
statements
to the City Council
on February
l9tI
are really
in the nature of
“we
think
we have a good proposal,
and we hope
you
will
agree
after
you
hear
the
evidence at the
statutory
siting
hearing.” This
is considerably
more benign than
a detailed pre-fihing
review
between the
parties’ technical representatives
which
actually
results
in a revised application
which
addresses
some
or all of the concerns
that the
decision-maker’s
technical representatives
may
have
expressed.
Waste
Management’s Brief
acknowledges
that there is
a presumption that a
decision-
maker is unbiased,
but argues that
this presumption
can
be overcome
upon a showing
that
members of the
local authority
prejudged
the adjudicative
facts.
However, this presumption
is
overcome with
facts, not with
inferences. Christopher
Bohlen
testified
at the Board
Hearing that
the
City
Aldermen knew exactly
what was going
on at the February
1
9
th
meeting
and that he
understood the
Applicant
as simply attempting
to
let
the
Council
know what
it intended
to prove
at
subsequent
hearings.
(Bd.
TR. 11-4 291, 296).
The record
does
not
reveal
otherwise,
and
accordingly
this Board’s holding
should
be governed
by
the holding
in Land
&
Lakes,
which,
although
cited
by
the
County,
actually
supports Town
& Country:
“Nothing
in the record indicates
that
the county board failed
to
exercise
its own
judgment
when it adopted
the Olson Report.
In
the absence of any pre-filing
collusion
between
the applicant
and the actual decision-maker,
i.e.
the county board, the
pre-filing
contact
between
WM
and Waste Services
could
not
have deprived
LALC or any other
siting approval
opponent of fundamental
fairness.”
(743
N.E.2d at 194).
24
XI. THE CITY’S
REQUIREMENT
OF FOIA
REQUESTS
TO SECURE COPIES
OF
PUBLIC DOCUMENTS WAS
NOT FUNDAMENTALLY UNFAIR
As argued in more detail in Town
&
Country’s
Brief in Chief, the City Clerk’s practice
of
requiring
a
FOIA Request consisting of a simple form to
be
completed
to secure copies of public
records
long predated the filing of the Application and
was applied uniformly to everyone,
including Town
&
Country.
XII. THE HEARING
OFFICER WAS NOT BIASED
The County argues that the Hearing Officer was biased
due to
his
extensive pre-hearing
contacts with the
Applicant in the
context of his participation as City Attorney in the
annexation
proceedings
and
negotiations for
a Host Agreement. Again, the County can only
be bringing this
argument in bad faith because the well established law is
that such contacts are not even relevant
on the issue of bias.
The
County
does
not point to any conduct of the Hearing
Officer evidencing his bias, nor
does the
County suggest that the Hearing Officer treated
any participant unfairly at the hearing.
A review of
the entire hearing transcript, in
fact,
confirms
the even-handedness with which Mr.
Bohlen
approached his responsibility as Hearing Officer. The County finally argues
that a
disinterested observer might conclude that the Hearing Officer was biased because he ruled
against
the County
on its Motions
to Quash. That same observer might also conclude that the
County’s
Motions were not well taken. Ironically, Mr. Bohlen
testified at the Board Hearing that
he was
personally
opposed to
the proposal.
(Bd.TR
11-6 355).
25
XIII.
THE CROSS-EXAMINATION
FORMAT WAS
NOT UNFAIR
Waste Management
alleges
that the round
table cross-examination
format whereby
all
cross-examination of
the Applicant’s
witnesses
was deferred until they
had all completed
their
direct testimony
was fundamentally
unfair.
Waste
Management
does not allege prejudice
or harm
as a result of
this format. The
Hearing Officer explained
his
reasons for using
this format, those
essentially
being that
questions,
particularly
from lay-people,
would be more
efficiently directed
to the
person most qualified
to answer.
(Bd. TR 11-4 251, 252).
It is well
established and
has
been
consistently held that
the right
to
cross-examination is
not unlimited,
and that the
right may
be
modified
without
violating
fundamental
fairness.
“Parties before a local
governing
body in
a
siting proceeding
must
be
given
the
opportunity to present
evidence
and object
to
evidence
presented, but they
need not
be
given the opportunity
to cross-examine
opposing
parties’
witnesses.”
Southwest
Energy Corp. 275
Ill.App.3d
at 92-93,
655
N.E.2d 304
(
4
th
Dist.
1995).
XIV.
THE CITY COUNCIL’S
FINDING
THAT THE
PROPOSED FACILITY
IS
SO
LOCATED,
DESIGNED.
AND PROPOSED
TO BE OPERATED
THAT
THE PUBLIC
HEALTH,
SAFETY,
AND WELFARE
WILL
BE PROTECTED
IS
NOT AGAINST
THE
MANIFEST
WEIGHT
OF THE
EVIDENCE
The one thing
revealed in the
Briefs of the parties
is that
there
is ample evidence in
the
record
for
all of the parties
to cite in
support of their respective
positions.
It is not
necessary here
to argue
that one side’s evidence
is more persuasive
than the
other since the very existence
of
ample
evidence on both sides
of the issues
means, as a matter
of law, that the
City Council’s
determination
cannot
be against
the manifest weight
of
the evidence.
It doesn’t matter
whether
the Board would
choose on balance
to believe the
testimony of Devin
Moose over
that of
Stuart
Cravens. A decision
is against
the manifest weight
of the
evidence
if the opposite
result is
clearly
26
evident, plain, or indisputable from
a
review
of the evidence. Harris
v. Day, 115 Ill.App.3d 762,
451 N.E.2d 262
4(
th
Dist. 1983).
Where there is conflicting evidence,
the Board is not free
to
reverse merely because the lower tribunal credits one
group of witnesses and
does
not credit
the
other. Fairview Area Citizens Task Force
v.
Pollution
Control Board, 198 Ill.App.3d
541, 555
N.E.2d 1178
(
3
rd
Dist. 1990).
Interestingly, the only dispute between the parties on this Criterion
is on the
characterization of the Dolomite Bedrock. All parties
agree
that there is an aquifer at the top
of
the Bedrock, and the real difference between them
is in their assessment of the thickness
of that
aquifer. This
hydro-geologic debate may
be of academic interest, but it is of no
practical value in
assessing whether or not the Applicant has established
this Criterion. The reason is
that Town
&
Country’s witnesses admitted throughout
the siting hearing that they were
proposing to build
a
facility with unique and enhanced engineering in direct proximity
to the Uppermost Aquifer.
What the Petitioners are really arguing
is that constructing a regional pollution
control
facility in direct proximity
to
an aquifer
underlying most of Northern Illinois
is inherently
a bad
thing to do. There
is,
however, no authority to
support
this argument,
and the argument is, in
fact,
contrary
to
technical requirements of the
Illinois Environmental Protection Agency. Devin
Moose explained
many
times
during
his cross-examination that location and design
are inter
twined, and what the Petitioners have ignored is that the proposed facility
is specifically designed
so
as to
be
compatible with, and take advantage of, the natural
hydro-geologic
conditions. Both
the
inward hydraulic gradient and the additional engineering
(12 foot recompacted sidewalls
and
recompacted
structural fill
at
the base) make
the presence of a thick layer of glacial tills
between
the
facility and the Uppermost Aquifer unnecessary.
The City Council not only heard this testimony,
but review of their special conditions
27
indicates
that
they
understood
the
issues. The
City
Council,
in fact, had
nineteen special
conditions
related
to
its
finding
that
Criterion ii had been
proven.
These
include, among others,
the
condition
that “adequate measures
shall be taken
to
insure
the
protection
of any and all
aquifers from
any
contamination as
required
by
the IEPA through its
permitting
process.
Upon
determination
of the
necessary
measures, said measures
shall also
be approved by
the City of
Kankakee.”
(C3273).
XV. THE
PROPOSAL IS
CONSISTENT
WITH ALL RATIONAL
REOUIREMENTS
OF THE
COUNTY SOLID WASTE
MANAGEMENT
PLAN
Little more needs
to be said on this
subject
in
a
Reply
Brief. The Board
can read the Plan
and
its Amendments and
evaluate
their
applicability
to the
instant proposal. However,
contrary
to
the assertion on Page
14 of Waste Management’s
Brief,
the Applicant did prove
that its
proposal
provides twenty years
of disposal
capacity
for the County.
(TR
64).
The Applicant
has a Host Agreement
with the host
community.
There is no Host
Agreement with
the
County. The Applicant
has
a
Property
Value
Protection
Program. It
was
not
approved
by
the County. The Applicant
has an
Environmental Contingency/Damage
Fund/Guarantee
in excess of the minimums
imposed
by the County,
but
it
was
not approved
by
the County.
Therefore, the
proposal complies with
all the technical
and rational requirements
of
the County
Solid Waste Management
Plan
except the County’s
requirement
to get
its
permission.
That permission has
been, and will continue
to
be, withheld.
The County
Brief distills
its argument
to a succinct essence
when it
states, “The City
Council
decision
should simply
be
reversed,
and the application
denied with prejudice
as the
County is the
primary planning
body for
waste management,
and the application is
not
and
cannot
28
be consistent with
Criterion
viii.” (County Brief, Page
65). The County, therefore,
admits that it
thinks it has
the
power
to
unilaterally and without
justification prevent
the City from ever
exercising its planning and siting jurisdiction. The
patent
illegality
on multiple levels of
such a
position has been discussed fully in Town & Country’s Brief
in Chief.
In
a similar vein, Waste Management has argued
that, “If the intent of the Plan
does not
allow or provide for the
proposed facility,
consistency cannot
be
established,”
(Waste
Management Brief, Page 23), and cited for
that proposition, Waste Hauling,
Inc. v. Macon
County
Board, PCB
9
1-223
(May 7,
1992).
Like many of the
cases cited by Kankakee
County,
this
case
also
does
not support the
proposition for which it is cited.
The Board in Waste Hauling
found that the County’s decision of inconsistency with
its Solid Waste Management Plan
was not
against the manifest weight of the evidence, and
in doing so the Board
gave substantial deference
to the decision-maker’s reading and interpretation
of the language in
the
Plan.
Kankakee County lastly argues
that the testimony of Dr.
Shoenberger, because it
was
based on
erroneous legal
assumptions and because much
of
it
was stricken, is not even
reviewable
and should be disregarded. (County Brief, Page
67).
This raises
an interesting point since if
this
Board finds, as Town & Country would hope, that the
Application need not
be
consistent
with a
County Solid Waste Management Plan which illegally and
unconstitutionally attempts
to restrict
and usurp the siting jurisdiction of the City, the testimony
of Dr. Shoenberger
does, indeed,
become irrelevant. Since he was the
only witness who testified on
June 1
7
th,
(even opening
statements
by
the
parties
were deferred until the next
day),
the
exclusion of some people
from the
hearings on June 1
7
th
because of space limitations now truly
becomes harmless error.
29
XVI.
CONCLUSION
The Petitioners here have apparently taken
their guidance
from
a
misreading
of the
Board’s decision in the
American
Bottoms
Conservancy
case,
a
reading
that
has them believing
that the cumulative affect of a number of small errors, none
of which is individually significant
enough
to alter the
outcome,
can lead to a finding that the proceedings
were,
in
their totality,
fundamentally unfair. Waste Management Of Illinois
was coincidentally the unfortunate losing
party in the ABC case. In an effort to turn some molehills
into a mountain, the County has raised
every conceivable argument. This list includes some that
are contrary to well established law
such as
non-owners signing for registered
mail, some that blatantly ignore
the facts in the record
such as failure to timely serve the Railroad, and some that are
just
silly
such as the argument that
the
statutory Section 39.2 hearing actually commenced on
February
19
th
rather than June
17
thi•
This
type
of shotgun approach, where merit
of
the
argument is never a consideration, offends
both
the
truth and the law, and the Board is asked
to be mindful of this as it evaluates
whether any of
the County’s other arguments have real merit. The truth is that
the totality of the record tells the
story far better than the one-sided, out-of-context witness summaries appended
to
the
County’s
Brief.
The pre-filing contacts between the parties were routine, uneventful
and of a sort that has
been approved since E&E Hauling was originally decided
by
our Supreme
Court. The only thing
unusual about the February 19, 2002 presentation
by
Town
& Country to the City Council
was
that it was transcribed
in
its entirety, and it happened out in the open where everyone could
see
and hear. It certainly had less substantive affect and was less subversive
to a
fair hearing
process
than the practice of “pre-filing application review” pioneered
by
an attorney
in this case when he
had a
similar role in Will
County
and
Waste Management was the Applicant. (A
fact proudly
noted
in the County’s
Brief
at page 30).
30
Not everything went perfectly
immediately
before and on the first day of the eleven days and
nights of public hearings but the Hearing Officer acted decisively to cure the errors, and no one
was
prejudiced other than those who arguably wanted to be for purposes of appeal. The
two
thousand plus page
transcript of the siting hearing reveals that everyone who wanted
to
participate did so
exhaustively with the result that the proposal was thoroughly
tested
and probed.
The hearings
themselves were contentious,
but
conducted
by the
Hearing Officer in
an even
handed manner. The result was that both the strengths and weaknesses of the Application
were
completely
revealed to the City Council. The Findings of the City Council,
as
well
as
the
conditions
imposed,
indicate that the City Council considered all the evidence on both sides.
The
City Council carried out
its responsibility in considering and weighing all
of
the evidence.
The
only thing lacking
from this record is any evidence that any
City Council Member had any actual
bias or prejudgment.
The decision of
the City Council should
be
affirmed.
Respectfully Submitted,
Town
&
Country Utilities, Inc. and
Kankakee
Regional Landfill,
L.L.C.
BY:
(&
I
1IUL)
Their Attomey
GEORGE
MUELLER, P.C.
Attorney at Law
501 State
Street
Ottawa,
IL 61350
Phone: (815) 433-4705
31