BEFORIk
1d1FON
CONTROL
U
ED
CLRK’SOFFTCE
COUNTY
OF
KANKAK
and
ED
SMITH,
KANKA
(\IW
j
NOV
2
7
STATE’S
ATTORNEY,
)
STATE
OF
IWNOIS
)
Pollution
Control
Board
Petitioner,
)
)
v.
)
No.:PCB
03-3
1
)
(Third-Party
Pollution
Control
Facility
THE CITY
OF
KANKAKEE,
ILLINOIS
)
Siting
Appeal)
CITY
COUNCIL,
TOWN
AND COUNTRY)
)
UTILITIES,
INC.
and
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
)
Respondents.
)
BYRON
SANDBERG,
)
)
Petitioner,
)
)
v.
)
No.: PCB
03-33
)
(Third-Party
Pollution
Control
Facility
THE
CITY
OF
KANKAKEE,
ILLINOIS
)
Siting Appeal)
CITY
COUNCIL,
TOWN
AND
COUNTRY)
UTILITIES,
INC.
and
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
)
Respondents.
)
WASTE
MANAGEMENT
OF ILLINOIS,
)
INC.,
)
)
Petitioners,
)
No.
PCB
03-3 5
)
(Third-Party
Pollution
Control Facility
V.
)
Siting
Appeal)
)
)
THE
CITY OF
KANKAKEE,
ILLINOIS
)
CITY
COUNCIL,
TOWN
AND
COUNTRY)
UTILITIES,
INC.
and
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.
)
)
Respondents.
)
This Document
is
Printed
on
Recycled
Paper
NOTICE OF
FILING
TO:
See Attached
Service List
PLEASE TAKE
NOTICE
that
on November
27, 2002, we filed
with the
Illinois
Pollution
Control Board, the attached
Waste
Management
of Illinois, Inc.’s BRIEF
IN
SUPPORT
OF
PETITIONER WASTE
MANAGEMENT
OF
ILLINOIS,
INC.’S THIRD
PARTY
APPEAL in
the
above
entitled
matter.
WASTE
MANAGEMENT
OF ILLINOIS,
INC.
By:L
//
One of
Its A/itomeys
/
Donald
J. Moran
PEDERSEN
& HOUPT
161 North
Clark Street,
Suite 3100
Chicago,
Illinois 60601
(312)
641-6888
Attorney
Registration No.
1953923
This Document
Is Printed
on Recycled Paper
PROOF
OF SERVICE
Victoria
L. Kennedy,
a non-attorney,
on oath
states that she served
the foregoing
Waste
Management
of Illinois,
Inc.’s
Disclosure
of Witnesses
on the following
parties
by
hand
delivery
to Ms.
Dorothy M. Gunn,
Clerk of the
Illinois
Pollution
Control Board
and Brad Halloran
at the
addresses
indicated
below,
by
U. S.
Express
Mail delivery
to Mr.
Byron Sandberg
and by
Federal
Express
delivery
to
all
other parties at
their
addresses
indicated
below on this 26th
day of
November,
2002:
Ms. Dorothy
M. Gunn,
Clerk
Illinois
Pollution Control
Board
James
R. Thompson
Center
100
West Randolph
Street,
Suite
11-500
Chicago,
Illinois 60601
Town and
Country
Utilities, Inc.
and
Kankakee Regional
Landfill LLC
do Mr. George
Mueller
Attorney at Law
501 State Street
Ottawa, Illinois 61350
Via Facsimile:
(815)
433-4913
Brad Halloran
Assistant Attorney
General
Environmental
Division
100 West Randolph,
11th
Floor
Chicago, Illinois
(312) 814-36698
Byron Sandberg
P.O. Box
220
Donovan, IL 60931
Mr. Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois
61105-1389
Via
Facsimile:
(815)
963-9989
Edward Smith
Kankakee
County
Stat&s Attorney
Kankakee County
Administration
Building
189 East Court Street
Kankakee, Illinois
60901
Via Facsimile: (815)
963-9989
Kenneth
A. Leshen
One Dearborn
Square, Suite
550
Kankakee,IL
60901
Via Facsimile:
(815)
933-3397
Victoria
L.
This Document
is Printed
on Recycled
Paper
COUNTY OF
KANKAKEE;
and EDWARD
D. SMITH,
STATE’S ATTORNEY
OF
KANKAKEE
COUNTY,
Petitioners,
THE
CITY OF KANKAKEE,
ILLINOIS;
THE CITY
OF
KANKAKEE,
ILLINOIS
CITY
COUNCIL;
TOwN
&
COUNTRY
UTILITIES,
INC.;
and
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
THE
CITY
OF
KANKAKEE,
ILLINOIS;
THE
CITY OF
KANKAKEE,
ILLINOIS
CITY
COUNCIL;
TowN
&
COUNTRY
UTILITIES,
INC.;
and KANKAKEE
REGIONAL LANDFILL,
L.L.C.,
THE CITY OF
KANKAKEE,
ILLINOIS; THE
CITY OF
KANKAKEE,
ILLINOIS CITY
COUNCIL;
TOWN
&
COUNTRY UTILITIES,
INC.;
and KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
CLERKS
O!F1CE
CONTROL
1xW2
7
ZUO2
STATE
OF
ILLINOIS
PoIluton
Control
Board
)
PCBO3-31
)
(Third Party
Pollution
Control
Facility
)
Siting Appeal)
)
)
)
)
)
)
)
)
)
PCB
03-33
(Third Party
Pollution
Control
Facility
Siting Appeal)
PCB 03-35
(Third Party
Pollution
Control
Facility
Siting
Appeal)
(Consolidated)
THIS
DOCUMENT
IS
PRINTED
ON
RECYCLED
PAPER
)
V.
Respondents.
BYRON
SANDBERG,
V.
Petitioner,
Respondents.
WASTE MANAGEMENT
OF ILLINOIS,
INC.,
Petitioners,
V.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Respondents.
)
353426
BRIEF IN
SUPPORT OF
PETITIONER
WASTE MANAGEMENT
OF
ILLINOIS,
INC.’S
THIRD
PARTY APPEAL
Petitioner
WASTE
MANAGEMENT
OF ILLINOIS,
INC.
(“WMIF’),
by
and
through
its
attorneys
Pedersen
&
Houpt,
hereby
submits
this
brief
in
support of
its third
party
appeal
of the
August
19, 2002 decision
(“Decision”)
of
the
City
of Kankakee, Illinois
City Council
(“City”)
granting the application
of Town
&
Country Utilities,
Inc. and Kankakee
Regional
Landfill,
L.L.C.
(“T&C”)
for
siting approval
of a new pollution
control facility.
PROCEDURAL
HISTORY
On
March 13,
2002, T&C filed
an application for
local
siting
approval with the
City
pursuant
to Section 39.2
of the Illinois Environmental
Protection
Act
(“Act”) for a new
400-acre
sanitary
landfill located in Otto
Township
at the southernmost
limit
of the City
of Kankakee
(“Siting Application”).
A public
hearing
on
the Siting Application
was conducted
over
11
days
from June 17
to
June 28, 2002.
T&C
presented
six witnesses who
testified in
support
of the
Siting Application.
Ten
witnesses
testified
in opposition. In addition,
numerous
persons
presented public
comment
opposing
the
proposed
facility. The
record
was closed
as of
July
29,
2002.’ On August
19, 2002, the
City rendered
its decision granting
T&C local
siting approval.
1
The transcripts
of
the
June 2002
public
hearing
will be cited as
“6/_/02 Tr.
at_”.
THIS DOCUMENT
IS PRINTED
ON RECYCLED
PAPER
353426
-2-
WMII
filed its petition
for a review of
the Decision
with
the Illinois Pollution
Control
Board
(“Board)
on September 23,
2002 in accordance
with
Section 40.1(b) of the
Act. On
October
3, 2002,
the Board
consolidated
WMII’s
petition
for
review with the separate
petitions
filed
by Byron
Sandberg
(“Sandberg’) and by
the County
of
Kankakee and Edward
D. Smith,
State’s
Attorney
of Kankakee
County (“County).
‘VMII
brings
this
petition for
review of the City’s Decision
on two
grounds.
First,
the
procedures
used
by the City
in
the
siting
process were fundamentally
unfair.
Second,
the City’s
findings that
T&C satisfied
Criterion
Two and Criterion Eight
of Section
39.2 of the
Act were
against the manifest
weight
of the evidence.
The
Board conducted
a public hearing
on the petitions
for review on November
4 and
6,
2002.2
The
members of the public
who testified
at the review hearing
were Mr. Darrell
Bruck
Jr., Ms. Pam Grosso,
Ms.
Barbara
Miller, Mrs. Betty
Elliott, Mr. Keith
Elliott,
Mr.
Keith
Runyon,
Mr. Ronald
Thompsen,
Ms.
Doris O’Connor,
Ms.
Patricia
O’Dell, Ms. Cheryl
Blume
and Mr.
Charles
Murray.
Other
witnesses
who provided
sworn testimony
were Mr. Leonard
Martin
and Mr. Karl
Kruse,
members
of
the
Kankakee
County Board, Mr. Christopher
Bohlen,
corporation
counsel for the
City
of Kankakee
and
the
Hearing
Officer for the
June
2002
public
hearing,
Mr. Donald Green,
Mayor of Kankakee,
Anjanita
Dumas, Kankakee
City
Clerk,
Ms.
2
The
transcripts
of the Board’s review
hearing
will
be cited as “IPCB 11/4/02
Tr. at
and
!!IPCB
11/6/02
Tr. at
THIS DOCUMENT
IS PRINTED ON RECYCLED
PAPER
353426
-3-
Patricia Vonperbandt,
George
Mueller’s secretary,
Mr.
Tom Volini,
and Mr. Al Patrick
Power,
assistant attorney
for the
City
of Kankakee.
STATEMENT
OF FACTS
I.
Facts Relevant To Fundamental
Fairness
Review
A.
Prejudgment
of the Merits
of T&C’s Siting
Application
On February 19, 2002,
the City held
a pre-filing meeting
wherein T&C
presented
and
the
City
reviewed
the substantive
merits
of the
Siting
Application.
3
City Council
Mtg. 2/19/02,
Tr.
at 5-27;
IPCB 11/4/02 Tr. at
272-275,
294,
296-297;
IPCB
11/6/02
Tr. at 175-180.
The February
19 meeting
was a regularly scheduled
City Council
meeting at which
the public
was not allowed
to speak. City Council
Mtg.
2/19/02 Tr. at 5; IPCB
11/6/02
Tr.
at 176. However, as
a
“special
indulgence”
to T&C,
the City allowed
T&C to
make
its “special presentation”
concerning
whether
the Siting Application
satisfied
the nine criteria
of Section 39.2
of the Act.
City
Council
Mtg.
2/19/02 Tr. at 5,
7;
IPCB
11/6/02
Tr. at 176, 180. The
City
gave
T&C
special
indulgence
because
it perceived that
the proposed
landfill would correct
the City’s financial
dilemma.
IPCB
11/6/02
Tr. at 180.
During the meeting,
T&C presented several
experts,
including Mr. Devin
Moose
and
Ms.
Jaymie
Simmon, who provided
information
on
the Siting Application
and the
siting process.
The transcripts of the
February
19,
2002
City
Council
meeting will be
cited as “City
Council Mtg. 2/19/02
Tr. at_”.
THIS
DOCUMENT IS
PRINTED
ON
RECYCLED PAPER
353426
-4-
City
Council
Mtg.
2/19/02
Tr.
at
5-8;
IPCB
11/4/02
Tr. at 272-275;
IPCB
11/6/02 Tr.
at
180,
182.
Mr.
Moose
gave expert
opinion
discussing
each
of the nine
statutory
criteria and
detailing
how
T&C
believed
its proposal
satisfied
those
criteria.
City
Council
Mtg. 2/19/02
Tr.
at
11-14;
IPCB
11/4/02
Tr. at
273-275,
294. Ms. Simmon,
who
was introduced
as
an expert
on how
the
organized
environmental
community
involves
itself
in
the
hearing
process,
warned
the City
to
expect
that
representatives
of the organized
environmental
community
would
be
present
at the
public
hearing
simply
because
“that’s
their job
is
[sic]
to go
around and
oppose
landfills
wherever
they
are
proposed”
and that
they
cannot
be trusted
to tell the
truth.
City
Council
Mtg.
2/19/02
Tr. at
15;
IPCB
11/4/02
Tr.
at
288,
290-291;
IPCB 11/6/02
Tr. at
198-199.
Ms. Simmon
further warned
that
the environmentalist’s
goal is to
make the
hearing
an
“emotional”
issue
and
“create controversy
and
cause
confusion.”
City Council
Mtg.
2/19/02
Tr. at
15; IPCB
11/4/02
Tr.
at
288-291.
In addition
to listening
to and
questioning
T&C’s
experts, the
City
was
also provided
with
documentary
evidence
to review.
IPCB
11/4/02
Tr.
at 297. T&C’s
principal,
Mr. Tom
Volini,
presented
the packet
of documents
and
described
each item.
The
evidence
included
(City
Council
Mtg.
2/19/02
Tr. at
15-18):
•
Meeting
agenda
•
Notice
of
Intent to File
Siting
Application
•
List of
nine
statutory
criteria
•
Section
39 of
the
Act
•
Aerial
photograph
identifying:
•
Facility boundary
•
Identification
of
landfill
footprint
THIS DOCUMENT
IS PRINTED
ON RECYCLED
PAPER
353426
-5-
•
Storm water management
facilities including
swales, letdown
structures and
ponds
•
Location of scale houses, truck
parking area and citizen drop-off area
•
Alternate traffic patterns
•
Landfill
cross sections
•
Operational screening
diagram
•
Property value protection
program
•
Schedule for landfill
siting and development
The T&C
presentation provided design information and methodologies
for (City
Council
Mtg.
2/19/02 Tr.
at 11-15):
•
Need
(Criterion 1)
•
Location,
Design and Operation (Criterion
2)
•
Incompatibility
and Surrounding Property Value (Criterion
3)
•
Flood Plain
(Criterion 4)
•
Plan of Operation
(Criterion 5)
•
Traffic (Criterion
6)
•
Hazardous Waste (Criterion
7)
•
Plan
Consistency (Criterion
8)
•
Regulated
Recharge Area (Criterion
9)
Neither the public,
interested citizens, the County of Kankakee, nor
any of their
respective
legal representatives, were given notice
or permitted to attend and participate
in the
February 19 meeting. None of the expert opinions
were
subjected
to public comment, cross
examination or
scrutiny. In fact, Mr. Volini explained to the City that
the purpose for the
closed
door
meeting was
so that T&C could discuss “the concepts we’ve
proved and environmental
protection
we’ve
achieved” “without the filter of lawyers, without
the rancor and back and
forth
that, unfortunately, the lawyers bring
to
the
process.” City Council Mtg. 2/19/02 Tr.
at 7; IPCB
11/4/02 Tr.
at 282,
296.
THIS DOCUMENT
IS PRINTED ON RECYCLED
PAPER
-6-
At
no time
after the
February
19 meeting
was
the
City
instructed
to
disregard T&C’s
Section
39.2 presentation.
IPCB 11/6/02
Tr.
at
191-192.
In fact,
Mr. Christopher
Bohien,
the
City’s
corporation
counsel
and
the
Hearing
Officer
for
the
June
2002
hearing,
thought
that
it
was
appropriate
that T&C
was
attempting
to present
to the
City what
it hoped to
prove at the
hearing.
IPCB
11/4/02
Tr. at 301.
Mayor
Donald Green,
who
participated
in the
February
19
meeting,
actually advocated
for
the proposed
landfill
that night.
IPCB
11/6/02
Tr.
at
193.
B.
Denial
of Public
Access
to
Attend
and
Participate
in
Public Hearing
The
public
hearing
on T&C’s
Siting
Application
commenced
on
June
17,
2002
at
City
Hall. Prior
to the
hearing,
the City
knew
that
there was
a substantial
public
interest in
the siting
hearing and
expected
a large public
turnout.
IPCB 11/4/02
Tr. at
3
19-321,
357-359. In
fact,
days
before
the
hearing began,
Ms.
Doris
O’Connor,
as a concerned
citizen,
personally
contacted
Mr.
Bohlen
to
inquire if the
City had
arranged for
adequate
acoustics
and seating
for the
elderly.
IPCB
11/4/02 Tr.
at
320,
357-359.
Even
though
it anticipated
substantial
public
participation,
the City
failed
to
provide
adequate
accommodations
on the
first night
of
the
hearing
to allow
all
interested
persons
to
attend and
participate
in
the hearing.
IPCB
11/4/02
Tr. at 319-321,
335.
Over an
hour
before the
hearing
began,
every
seat in the
City
Hall
Chambers,
the hearing
room
selected
by
the
City, had
been
filled.
IPCB
11/4/02
Tr. at
60,
62-63,
65, 122-123,
143.
On
the orders
of Mr.
Bohien,
in his
capacity
as
the Hearing
Officer,
armed
and
uniformed
police
officers
stood at
the entrance
of the hearing
room
and barred
the public’s
access.
IPCB
11/4/02
Tr. at 65-66,
102-103,
156-157,
170-172, 180-186,
324,
361-364;
IPCB 11/6/02
Tr. at
48-50,
THIS DOCUMENT
IS PRINTED
ON RECYCLED
PAPER
353426
-7-
112.
Although the
City
has allowed people
to
stand
at the back of
the City Hall Chambers
during
other
public hearings, Mr. Bohlen
refused
to permit standing
room
on this
occasion and ordered
the
police officers to direct
anyone standing to leave
the
room at the start
of the hearing. IPCB
11/4/02
Tr.
at
143-147,
156-160; IPCB 11/6/02
Tr. at 41-44, 112, 211-213.
As a result, crowds of
people were squeezed together
starting from the first floor
of the
City
Hall
building and continuing
up two flights of stairs
to the second floor hallway
outside
of
the hearing room. IPCB 11/4/02
Tr. at 60-64, 101-102, 123-125,
147, 158-159,
171,179-183,
360-363; IPCB 11/6/02 Tr.
at 39-41. Although the crowd
outside
the hearing room
was not
disruptive
or unruly, on several
occasions the police officers threatened
to clear the hallway
unless
those
outside the hearing room remained quiet.
IPCB 11/4/02 Tr.
at 69, 72, 103, 106,
128-134, 161; IPCB 11/6/02
Tr. at 58, 3 15-317.
Over the course of that evening,
between 50 and 125 people
were not permitted
into the
hearing room
and were forced to remain standing in the
hot and crowded hallway
and
stairways
of the first and second floors
of City Hall. IPCB 11/4/02 Tr.
at 64, 78-79, 102, 105-106,
117,
127, 179-183, 322-323; IPCB 11/6/02
Tr. at 41. Many people
who were forced to stand
outside
the
hearing room were elderly. IPCB 11/4/02
Tr. at 78-79, 102, 143-144,
171-172,
361-363;
IPCB 11/6/02 Tr. at 59. From outside
the hearing room, the public
could not hear or see
what
was transpiring. IPCB 11/4/02
Tr. at 71, 75, 77-78, 104-107, 125,
184, 323,
364;
IPCB
11/6/02
Tr. at 45. The City
did
not inform the crowd at any time
as to what was occurring
during
the
hearing or
provide sound amplifiers
or video monitors in the
hallway or stairways.
IPCB 11/4/02
THIS DOCUMENT
IS PRINTED
ON RECYCLED PAPER
353426
-8-
Tr.
at
71,
75,
77-78,
104-107,
125, 184,
190,
323,
364; IPCB
11/6/02 Tr. at 45.
The
City
never
notified
the crowd
of their rights
to participate or the
rules of the
proceedings.
IPCB
11/4/02
Tr.
at
77-78, 105, 110-111,
133,
195,
366-367;
IPCB
11/6/02 Tr. at
55.
Those
who
were
denied
entry
to the
hearing room
were visibly upset
and frustrated
that
(i) they could
not see or hear
what
was going
on; (ii)
those
seeking to register
to participate
were
not given
the chance to do
so; and (iii) adequate
provisions
had not been
made for the
public.
IPCB
11/4/O2Tr.at64,66,
106, 128, 132-133,
146,
162-163,
183,
187,364;IPCB
11/6/O2Tr.at
6 1-63,
68. Approximately
60-75 people left
before
the
hearing was over that
night. IPCB
11/4/02
Tr. at 76, 106, 191-192,
365-366;
IPCB 11/6/02
Tr. at 50-52. Many
did
not return
on
following nights
because they
feared
they
would,
again, be denied
access to the
hearing.
IPCB
11/4/02
Tr. at
76,
132, 135-136,
148, 198; IPCB 11/6/02
Tr. at
65.
C.
Unfair
Procedures
for Cross-Examination
of Witnesses
At the hearing, the
Hearing Officer
ordered
that cross-examination
of T&C’s
witnesses
would
only be permitted
after
the close
of its case-in-chief.
6/18/02 Tr. at
103.
The Hearing
Officer
required that cross-examination
occur in a roundtable
format where
all T&C
witnesses
were
made
available at once.
Persons
interested in questioning
were required
to ask
all
of
their
questions
to all of T&C’s
witnesses
until
that questioner
was finished. Questioners
were
not
permitted
to conduct any
recross-examination
on new issues
raised
by
subsequent
questioners.
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II.
Facts
Relevant
To
The Sufficiency
Of Evidence
Review
A.
Unrefuted
Evidence
That
the
Proposed
Landfill
Was
Not
Located and
Designed
to
Protect
the
Public
Health,
Safety and
Welfare
As described
in the
Siting
Application,
the
design of
T&C’s proposed
landfill
is
based
upon
the geologic
and
hydrogeologic
conditions
at
the
site.
Siting
Application,
pp.
10232,
10130-10131;
6/20/02
Tr.
at
89.
The
premise
for T&C’s
landfill design
is
that
it will be
keyed
into
the
existing
Silurian
Dolomite
bedrock.
Siting
Application,
p.
10137. On
the
basis
of
information
obtained
from
a single
boring
which
penetrated
the underlying
bedrock
to
a depth
of
50 feet,
T&C ‘s
engineer,
Mr. Moose,
concluded
that
the
Silurian Dolomite
on
which the
landfill
would
be
placed
is an aquitard.
4
Siting
Application,
p.
10087,
10121-10122;
6/24/02
Tr.
at 64-
65,
70,
106;
6/25/02
Tr. at
119, 125-126;
6/26/02
Tr. at 141.
By characterizing
the
existing
Silurian
Dolomite
bedrock as
an aquitard,
T&C
designed
the
landfill to
be constructed
directly
on
top of
the bedrock
without
any barrier
or
other protective
layer
between
the
base
liner
of the
landfill
and the
Silurian
Dolomite
so as
to
prevent
contaminant
migration
in
the event
of a
release.
6/18/02
Tr.
at
63,
70;
6/25/02
Tr. at
89;
6/26/02
Tr. at 15,
65-66, 86-94,
134,
151.
T&C
relies upon
the
composite
liner and
its inward
gradient
design to
protect
against
any releases
or
contaminant
migration
from the
landfill.
However,
T&C
did not
evaluate
how
the liner
will
perform
for any
vertical
or downward
flow
of contaminants.
6/25/02
Tr. at
89, 92-94;
6/24/02
Tr.
at 151.
Downward
flow
of contaminants
is an important
public
health and
safety
An
aquitard
is
an
area
of
low
permeability
that acts
as a confining
layer,
and
is not
capable of
supplying
water
to a well.
6/24/02
Tr.
at 63,
102.
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consideration
especially,
when, as here, the
landfill
will
sit directly on and
within the aquifer
and
there
is
no
impermeable barrier
between the
landfill
liner
and the aquifer.
If there is a release,
the
Silurian
Dolomite is immediately
at risk.
6/26/02
Tr. at
151. Because T&C’s
groundwater
monitoring
system
assumes
the Silurian Dolomite
is an
aquitard, it is not
designed
to monitor
the
bedrock
directly under
the landfill
to detect any contaminants
released
from the facility.
Siting
Application,
pp.
10229,
10256,
10257.
Despite Mr.
Moose’s
characterization
of the
bedrock at the proposed
site
as an aquitard,
the uncontroverted evidence
presented
at the hearing,
which consisted
of scientific
reports,
well
water data and testimony
from three
hydrogeologists, conclusively
established
that the
existing
Silurian
Dolomite
is
an aquifer, not an aquitard.
6/25/02
Tr. at 87-88, 106;
111, 125-126;
6/26/02
Tr. at 80, 82-84,
88-90, 145-147.
The regional
scientific publications
and reports
introduced
into evidence consistently
characterize
the Silurian Dolomite
as an
aquifer.
5
6/24/02
Tr.
15
106-110;
6/26/02
Tr. at
86. Even publications
referenced
in the Siting
Application
characterize the
Silurian
Dolomite
as an aquifer. 6/24/02
Tr.
at 106-110.
When
confronted
with
this evidence,
Mr.
Moose admitted
that he could not
cite to any written
geologic study
within
“Meeting
the
Growing
Demand for Water:
An Evaluation
of the Shallow
Ground
Water
Resources
in
Will
and
Southern Cook
Counties, Illinois”,
Illinois State
Water Survey,
Research
Report
123,
1993;
“Regional Assessment
of the Ground-Water
Resources
in
Eastern
Kankakee
and Northern
Iroquois
Counties”, Report
of Investigation
111, Illinois
State
Water Survey, Champaign
1990;
“Potential for Aquifer
Recharge
in
Illinois”, map
prepared
and published
by Illinois State
Geological
Survey, 1990; “Major
Bedrock
Aquifers
within 300 Feet
of Ground Surface”, map
database
produced by Illinois
State Water Survey
and
Illinois State
Geological Survey,
1989; “Potential
for Contamination
of Shallow
Aquifers
in Illinois”,
Illinois
State
Geological
Survey, Circular
532, 1984.
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northern
Illinois
where
the term aquitard
was
used in describing
the
Silurian
Dolomite.
6/21/02
Tr. at
49-50;
6/24/02
Tr. at
60-61,
69, 106,
111-112;
6/25/02
Tr.
at 134.
In addition
to
the
published
scientific
reports, the
water well
data contained
in
the Siting
Application
confirms the
characterization
of
the Silurian
Dolomite
as an
aquifer.
Siting
Application,
pp.
30013-30061;
6/24/02 Tr.
at 69, 112-138.
The
Siting
Application
contains
information
establishing
the presence
of
over 300 water
wells
within
two
miles of the
proposed
site. Siting
Application,
pp.
30013-30061.
More than
half of
the
300
wells
identified
in the
Siting
Application
are
drawing
water
from
that portion
of the Silurian
Dolomite
that
Mr. Moose
characterized
as an
aquitard.
Siting
Application,
pp.
10127, 30013-30054;
6/24/02 Tr.
at 112-
140;
6/26/02
Tr. at
134.
Finally,
Mr. Moose’s
characterization
of the Silurian
Dolomite
as an aquitard
was refuted
by
the testimony
of
Mr.
Steven Van
Hook,
Mr.
Stuart Cravens
and
Ms. Sondra
Sixberry,
who
are
all hydrogeologists
with extensive
education
and
training in
geology
and
hydrogeology.
6/25/02
Tr. at
84, 157; 6/26/02
Tr. at
8, 21. Mr.
Van Hook
testified that
the groundwater
use and
the
depth
of the private
water
wells
surrounding
the proposed
site
conclusively
establish
that
the
Silurian
Dolomite
is
an
aquifer.
6/25/02
Tr. at 87-88.
Mr. Cravens
also
testified that
the
Silurian
Dolomite
is, in fact,
an
aquifer
and stated
that T&C’s
characterization
of
Silurian Dolomite
as an
aquitard
is
totally
contradicted
by
reliable
scientific
publications.
6/26/02
Tr. at
65-66, 86,
145-
147,
151, 164-165.
Ms. Sixberry
confirmed
that
the Silurian
Dolomite
is an aquifer
and
warned
that the “(t)o
ignore
the
plethora of
water well
logs
available
surrounding
the proposed
landfill
as
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well
as
the published
data
and
solely rely
on one
site
specific
boring
to
determine
the
potential
for the
Silurian Dolomite
to
transmit water
would
be a huge
error.” Sixberry
Exhibit
No.
1;
6/25/02
Tr. at 111,
125-126;
6/26/02 Tr.
at
82-84.
Mr.
Moose
was
the
only
witness
at the hearing
to characterize
the
existing
Silurian
Dolomite
as an aquitard.
T&C
did
not
present any
expert testimony
from
a hydrogeologist
or
geologist
for
the
purpose of
identifying
the
geologic
and
hydrogeologic
conditions
at the
proposed
site,
confirming
Mr.
Moose’s
characterization
of the existing
Silurian
Dolomite
as an
aquitard
or refuting
the published
scientific
reports,
the
water
well
data
in the Siting
Application
and the
testimony
of
Mr. Van
Hook,
Mr.
Craven and
Ms. Sixberry.
B.
The
Proposed
Landfill’s
Inconsistency
with
the
Plain Language
of
the Kankakee
County
Solid
Waste Plan
The
Kankakee
County
Solid
Waste
Management
Plan
(“County
Plan”)
describes
the
existing Kankakee
Landfill
(“Kankakee
Landfill”)
as the
facility
that is managing
the municipal
waste generated
in the
County.
County Plan,
p.
339.
The plain
language
of the
County
Plan
expressly provides
that
the
Kankakee
Landfill
“would
have
positive
impacts
on
the
County,
including ...
the
continued
availability
of
reliable,
convenient
disposal
capacity”,
and
that
an
expansion
of the
Landfill
would “satisfy
the
County’s
waste
disposal
needs for at
least
an
additional 20
years.”
County
Exhibit
2 at
1-2.
In the event
the
Kankakee
Landfill
is
expanded,
“no
new facilities
would
be necessary.”
County
Exhibit
2 at 2. The
Kankakee
Landfill
has
filed
its request
for
approval
to expand
the existing
landfill,
which is
currently
pending.
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The County Plan also
identifies several
prerequisites
that must
be addressed
before
a
proposed
landfill can be considered
to be
consistent
therewith.
First,
the County
Plan
requires
that a
host
community fee
must be negotiated
with
the
County
and that
an agreement
with
respect
to said fee must be
reached
prior to
the
filing of
a
siting application.
County
Exhibit
2
at
6. While
T&C negotiated
a host
agreement with the City
of Kankakee,
that
agreement
makes
no
provisions
for the payment
of a host
fee to the County.
Second, for any
plan
to be
consistent with the
County Plan,
it must provide
for the
reservation
of 20 years
of disposal
capacity for total
waste (i.e.,
municipal waste
and
industrial
waste)
generated
in Kankakee
County.
According to the
February
19,
2002
Agreement
for
Operation
of Landfill in
Kankakee, Illinois
(“Host Agreement”)
between
T&C and
the City
of
Kankakee,
30 years of disposal
capacity will
be provided
for the
City
of Kankakee,
but not to
Kankakee
County. Siting Application,
p.
20117.
Third,
the
County
Plan
requires
that
the
owner/operator
of any new or
expanded
regional
pollution control
facility
post
and maintain for the
life
of such regional
pollution
control
facility
either:
(1) an environmental
contingency
escrow fund
of a minimum
$1
million
dollars
based
upon an annual payment
not to exceed
5 years, or (2)
some other
type of payment
or
performance
bond
or policy of
onsite/offsite
environmental impairment
insurance
in
a
form
and amount
acceptable
to the
County.
County
Exhibit 2 at 3. T&C
has not
established any
such
environmental
escrow
fund.
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STANDARD
OF REVIEW
Section
39.2
of the
Act vests
authority
in local
governments
to
approve
or disapprove
siting
for each
new
pollution
control
facility.
415
ILCS 5/39.2.
A
local
government’s
decision
is
reviewable
by
the
Board
for
jurisdiction,
fundamental
fairness,
and
compliance
with
the
nine
statutory
criteria
for
siting
approval
found
in
Section
39.2 of the
Act.
CDT
Landfill
Corp.
v.
City
of Joliet,
No.
PCB
98-60
slip
op.
at
8
(March
5,
1998).
Section
40.1
of the
Act requires
the
Board to ensure
that
the
procedures
used
by the
local
authority
in
reaching
a decision
were
fundamentally
fair.
Daly
v.
Pollution
Control
Board,
264
Ill.
App. 3d
968,
970, 637
N.E.2d
1153,
1154-55
(1St
Dist.
1994).
The Board
may
hear
new
evidence
relevant
to the fundamental
fairness
of
the proceedings
where
such
evidence
necessarily
lies
outside of the
record.
Land
& Lakes
Co.
v.
Pollution
Control
Board,
319 Ill.
App.
3d 41,
48-
49, 743
N.E.2d
188,
194
(3d
Dist. 2000).
The
Board
should
review the
issue
of
whether
the
proceedings
in this
matter were
fundamentally
unfair
de novo.
Id.
When
reviewing
a local
government’s
compliance
with
the nine criteria,
the
Board
must
determine
whether
the local
decision
is
against
the
manifest
weight
of
the
evidence.
CDT
Landfill
Corp., No.
PCB
98-60
slip op. at
9-10.
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 &
Lakes
Co.,
319
Iii. App.
3d
at 48,
743 N.E.2d
at 193.
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ARGUMENT
I.
THE
CITY’S
DECISION
APPROVING LOCAL
SITING
SHOULD
BE
REVERSED
BECAUSE
THE
PROCESS
AND
PROCEDURES
USED
IN
REACHING
A
DECISION
ON
T&C’S
SITING
APPLICATION
WERE
FUNDAMENTALLY
UNFAIR
Although
local siting
procedures
are not
required
to comply
with
constitutional
guarantees
of
due
process,
the
procedures
must
comport
with
due
process
standards
of
fundamental
fairness.
Daly,
264
Iii.
App. 3d
at
970,
637
N.E.2d
at
1154-55;
E
& E Hauling,
Inc.
v. Pollution
Control
Board,
116
Ill. App.
3d
586, 596,
451
N.E.2d
555,
564
(2d
Dist.
1983).
A
fundamentally
fair
hearing
must
include
impartial
rulings
on the
evidence,
the opportunity
to
be
heard
and
the
right
to cross-examine
witnesses.
Daly,
264 Ill.
App.
3d at 970-7
1, 637
N.E.2d
at
1155;
Sierra
Club
v. Will
County
Board,
No. PCB
99-136
and
99-139
(cons.),
slip
op.
at
3
(August
5,
1999).
A.
The City’s
Substantive
Review
of
T&C’s
Siting
Application
at
the February
19,
2002
City Council
Meeting
Constituted
an
Impermissible
Prejudgment
of the
Merits
Prior
to the
Public
Hearing
Because
the local
siting
authority’s
role
in
the
siting
approval
process
is quasi-
adjudicative,
prejudgment
of
the
merits
of the
application
in
advance
of the
hearing
is
fundamentally
unfair.
Waste
Management
of
Illinois.
Inc. v.
Pollution
Control
Board,
175
Iii.
App.
3d
1023,
1040,
530 N.E.2d
682,
695-96
(2d Dist.
1988).
The
presumption
that
a
decision
maker
is
unbiased
can
be overcome
upon
a showing
that
members
of the
local
authority
prejudged
the
adjudicative
facts,
i.e.,
the relevant
criteria
of Section
39.2
of the
Act.
Fairview
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Area
Citizens
Taskforce
v.
Pollution
Control Board,
198
Ill. App.
3d 541,
548,
555 N.E.2d
1178,
1182
(3d Dist.
1990).
The February
19, 2002
meeting
between
the
City
and
T&C
occurred
for the direct
purpose
of
having
the
decision
makers
review the
substance
of T&C’s
Siting
Application
against
the
Section 39.2
criteria in
advance
of the hearing.
Indeed,
the stated
purpose
of the meeting
was
to let
the
City
hear
the merits
of
T&C’s request
for local
siting approval
“without
the
filter
of
lawyers,”
“the back
and
forth” of
the process,
and the
“half-truths”
that
would
occur
at the
post-
filing public
hearing.
The
fact that
the City
indulged
in a fact-finding
preview
of
the evidence
supporting
T&C’s
Siting
Application
clearly
suffices
to overcome
the
presumption
that
the
City
acted
fairly and
objectively
in the siting
process.
Given
that the
February 19
meeting
was
specifically
designed
to
take
place outside
of
the
presence
of the
lawyers,
citizens
and
other
interested
persons,
thus depriving
them
of the opportunity
to cross-examine
witnesses
or
question
the
information
presented
therein,
“a disinterested
observer
might
conclude
that
the
administrative
body,
or its members,
had
in some measure
adjudged
the
facts
as
well
as the
law
of the case
in
advance
of the hearing.”
Waste
Management
of
Illinois, Inc.,
175 Ill.
App.
3d
at
1040, 530
N.E.2d at
695-96. Even
if T&C’s
pre-hearing
presentation
did
not actually
influence
the City’s
decision,
it undeniably
gave the
appearance
of an improper
prejudgment
of
the
adjudicative
facts.
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B.
The
City’s
Failure
to Provide
Sufficient
Accommodations
for Public
Attendance
and
Participation
at the
Hearing Resulted
in the
Denial of
the Public’s
Fundamental
Right
to be
Heard
In
its
review of
fundamental
fairness,
the
Board has held
that “the
public hearing
before
the
local
governing
body
is
the most critical
stage
of the site
approval process.”
American
Bottom
Conservancy
v. Village
of Fairrnont
City,
No. PCB
00-200,
slip op.
at
6 (October
19,
2000).
A fundamentally
fair
hearing
places a
premium
on the right
of
the
public
to be heard.
Daly,
264 Ill.
App.
3d at 970-7
1,
973,
637
N.E.2d
at 1155-56.
In
the
instant
case, anywhere
between
50 and
125
interested
persons,
many
of whom
had
preregistered,
were
denied the
opportunity
to
attend
and participate
on
the first night
of the
hearing
as a direct
result
of the
City’s refusal
to provide
adequate
accommodations.
Even
though
it was evident
long
before
the hearing
began
that the accommodations
were
insufficient,
the
Hearing Officer
refused
to permit
members
of
the public
to stand
at
the
back
of the hearing
room
and refused
to
reconvene
the hearing
to
arrange
for alternate
accommodations,
including,
at a
minimum,
placing
extra
seating
and
sound
speakers
in the
hallway outside
the hearing
room.
Instead,
the Hearing
Officer directed
police
officers
to
bar
the
public’s entrance
into
the
hearing
room.
The
crowd
of people,
including
elderly
citizens,
who were
clearly
interested
in
the
hearing,
were forced
to stand
in the unairconditioned
and uncomfortable
hallway
and
stairways
where
the
proceedings
could
not be heard
or
seen.
Disgruntled
and
frustrated,
many
people
left
and did not
return.
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The
fact that
adequate
accommodations
were
made
on subsequent
hearing
nights,
or that
a
transcript
of the first
hearing
night
was
eventually
available
for review,
does not
cure the
fundamental
unfairness
that occurred.
Many
people
came
to the first
night of the
hearing for
the
purpose
of
registering
in accordance
with the
public
notice
that indicated
persons
desiring
to
participate
in the
hearing
were
required
to
register
at the start
of
the
hearing.
Those
who
were
turned
away and
never
returned
were
effectively
denied the
opportunity
to participate.
Furthermore,
a
mere
review
of the
transcript
does
not give
the public
the
opportunity
to
question
the witness
who
was only
available
on the
first
night of the
hearing.
Simply
put,
because
a large constituent
of the public
was
denied
access to
the hearing,
the
hearing
process
was
fundamentally
unfair.
The Hearing
Officer
later
acknowledged
at the
review
hearing that
the
City
failed to
adequately
accommodate
the
public on
the
first night
of the hearing
even
though
a large
turnout
was
anticipated.
Under
the circumstances,
the
City’s
flagrant
refusal
to
provide
sufficient
accommodations
for
public
attendance
and
participation
rendered
the
hearing
fundamentally
unfair.
C.
The
Irregular
Procedures
Imposed
by the
Hearing
Officer
Concerning
the
Cross-
Examination
of Witnesses
Were
Unreasonable
and Unfair
In addition
to
the
right
to be
heard, fundamental
fairness
requires
that
parties have
an
adequate
opportunity
to
cross examine
witnesses.
Waste
Management
of Illinois,
Inc.,
175 Ill. App.
3d at
1036,
530 N.E.2d
at 693.
When governmental
agencies
adjudicate
or make
binding determinations which
directly affect
the rights
of individuals,
it
is
imperative
that
those
agencies
use the
procedures
which
have
traditionally
been
associated
with the judicial
process.
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People
ex rel. Klaeren
v. Village
of Lisle, 2002 Ill.
LEXIS 941
at 29 (Ill. Sup. Ct.
October
18,
2002).
However, the
Hearing
Officer
in this case
precluded
participants from effectively
cross-
examining
T&C’s witnesses
by requiring
a roundtable
format
for cross-examination.
In other
words,
participants were
required
to
wait
until
T&C
finished
its case before they
were allowed
to
question
any
of the witnesses.
This
irregular method
of cross-examination
was unfair
to participants
in a number
of
ways.
First,
it placed an unfair
burden on questioners,
particularly
lay
persons,
to prepare
and
ask
all of their
questions
on all of the criteria at
one time. Cross-examination
of one
witness
is
difficult
enough
without imposing
the requirement
that
all witnesses
be examined
simultaneously
as a group.
Second, the method denied
cross-examination
to
those questioners
who were not
available
at the end of
T&C
‘5 case.
Third, it destroyed
the continuity
of the
question-and-answer
process
that occurs when
the normal
cross-examination
format is employed.
Even
if the
Hearing
Officer
believed that
the roundtable format
would
facilitate
cross-examination,
the reality
was
that it severely
impeded
the participants’ attempts
to elicit
information
in a cohesive and
efficient
manner
and, therefore, did
not comport with
due process
notions
of fundamental
fairness.
Because the City prejudged
the adjudicative
merits
of T&C’s Siting
Application,
denied
the
public
access
to the hearing
and impeded
the ability
to effectively cross-examine
T&C’s
witnesses,
the
August
19, 2002 decision should
be reversed
and
remanded
for a new local
siting
hearing in order to permit
an unbiased
review of the siting
request with
sufficient
accommodations
for full public attendance,
participation
and
cross-examination.
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II.
THE
CITY’S DECISION
APPROVING
LOCAL
SITING SHOULD
BE
REVERSED
BECAUSE
THE
FAVORABLE
FINDINGS
ON
CRITERION
TWO
AND
CRITERION
EIGHT
ARE AGAINST
THE MANIFEST
WEIGHT
OF
THE
EVIDENCE
An applicant seeking
local
siting approval
for
a
pollution control facility
must submit
sufficient
evidence that the
proposed facility
meets
the
nine criteria set forth
in Section
39.2 of
the Act.
A review of the record
clearly establishes
that
the City’s findings
that T&C
satisfied
Criterion
Two and Criterion
Eight are against
the manifest
weight
of
the evidence.
A.
The City’s
Finding that The
Proposed
Landfill
Was Located
and Designed
to
Protect the
Public Health,
Safety
and Welfare
Was Satisfied
Is Against the
Manifest
Weight
of the Evidence
Criterion Two requires
that the applicant
show
that: “the facility is
so
designed, located
and proposed
to be operated
that the public health,
safety
and welfare
will be
protected.”
415
ILCS 5/39.2(a)(ii).
Based
upon
the undisputed evidence
in the
record that T&C
mischaracterized
the Silurian Dolomite
as an aquitard,
it is manifestly
evident
that
T&C failed to
establish that
the
proposed
facility was
located and designed
to
protect
the public health,
safety and welfare.
The
entire premise
for T&C’s
landfill design
is that the Silurian Dolomite
on
which
the
landfill
would be placed
is
an aquitard.
However,
the uncontroverted evidence
presented
at the
hearing
conclusively establishes
that the
Silurian
Dolomite
is an aquifer.
In
order for
the
City to
have accepted Mr.
Moose’s characterization
of
the
site, it had
to
ignore numerous regional
studies,
the uncontradicted
testimony
of three hydrogeologic
experts,
data from
hundreds
of
water wells
in the Kankakee area
and the
undisputed
fact that
the Silurian Dolomite
is
providing
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billions
of
gallons
of water
annually
to
residential,
industrial
and
agricultural
users
in
northeastern
Illinois.
Therefore,
no matter
how
Mr.
Moose’s
credibility
on
design
issues
is
assessed,
his testimony
on the
hydrogeologic
characterization
of the
Silurian
Dolomite
is
plainly
and
directly
contradicted
by
all of
the
other evidence
presented,
including
the
well
log data
from
the Siting
Application.
T&C’s
proposal
to build
a
landfill
on top
of and
within
the
aquifer
presents
a
significant
threat
to the public
health
and
safety.
The
proposed
landfill
was designed
without
any
barrier
or
other
protective
layer
between
the
base liner
of the
landfill
and
the
aquifer,
which
is necessary
to
prevent
contaminant
migration
in the
event
of a release.
Without
such
protection,
any
release
or
leak from
the
landfill
would
go
right into
the
aquifer
being
utilized,
thereby
presenting
an
increased
risk
to
the aquifer
and
the public
health
of
those who
use
it.
In
addition,
the
proposed
groundwater
monitoring
system
is
not designed
to
monitor
the
bedrock
aquifer,
and
thus
fails to
provide
an
early
warning
for any
release
of contaminants
from
the facility
to
the aquifer.
The
City’s
finding
that Criterion
Two
was
satisfied
is plainly
and evidently
wrong.
With
the
exception
of
Mr.
Moose’s
testimony,
all the
expert
testimony
and scientific
evidence
presented
at the
hearing,
including
data
in
the Siting
Application itself, established
that
the
bedrock
is an
aquifer.
B.
The
City’s
Finding
that The
Proposed
Landfill
Was Consistent
with
Kankakee
County’s
Solid
Waste
Plan
Is Against
the
Manifest
Weight
of
the Evidence
Criterion
Eight
of Section
39.2
of the
Act requires
a
showing
that:
“if the
facility
is to
be
located
in
a
county
where
the
county
board
has
adopted
a solid
waste
management
plan
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consistent
with
the
planning
requirements
of
the Local Solid
Waste
Disposal
Act
or
the Solid
Waste
Planning
and
Recycling
Act,
the facility
is consistent
with
that
plan.”
415 ILCS
5/39.2(a)(viii).
The
plain
language
of the County
Plan clearly
demonstrates
that
the
development
of
T&C’s proposed
landfill
is inconsistent
with
the
County
Plan.
In
evaluating
whether the
proposed
facility
is consistent
with
the
County
Plan, the City
was
required
to look to
the plain
language
of
the plan and
to consider
any
language
indicating
that
the
plan
does
not
support the
proposed
facility.
T.O.T.A.L.
v. City
of Salem,
No. PCB
96-79
and
96-82
(cons.),
slip
op.
at
24
(March
7, 1996).
If the
intent
of the
plan
does
not allow
or
provide
for
the
proposed
facility,
consistency
cannot
be established.
Waste
Hauling,
Inc. v.
Macon
County
Board,
PCB
No.
91-223, slip
op.
at
17-18
(May
7,
1992).
The
County Plan
clearly
provides that
the existing
Kankakee
Landfill
is
the facility
to
manage
the
municipal
waste
generated
in the
County.
No
other
landfills
in
the County
are necessary
or
appropriate.
If the
Kankakee
Landfill
is
expanded,
it will provide
the
necessary
disposal
capacity
for at least
an
additional
20-year
planning
period.
No
other landfills
would
be needed
to
provide
disposal
capacity
for
this
period.
Therefore,
in light
of the provisions
in
the County
Plan,
T&C’s
proposed
landfill
would
be duplicative.
While the
proposed
expansion
of
the
Kankakee
Landfill
has not
yet been approved,
that
does
not
make
the
proposed
facility consistent
with
the County
Plan. The
currently
pending
request
to
expand
the Kankakee
Landfill
must
be
finally denied
before
the T&C
landfill might
be
found to
be necessary
and
appropriate,
and therefore,
consistent
with
the
County
Plan.
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Therefore,
to
comply with
the intent
of
the
County
Plan,
a
determination
as to whether
the
proposed
landfill is consistent
with the
County Plan
may not properly
be made until a
final
decision
is rendered on the
expansion
of the
Kankakee
Landfill.
So long as the expansion
of
the
Kankakee
Landfill
remains
a possibility,
no finding
of consistency
for T&C’s proposed
facility
may
be made,
because
a subsequent
expansion of the
Kankakee
Landfill will
render such
a
finding
baseless
and violative
of the County Plan’s
plain language
and
intent.
In
addition,
the
Siting Application
is not consistent
with
the County
Plan in three
other
significant
respects.
First,
the
Siting Application
does not address
the issue of
a host community
fee which
must
be negotiated
with the County
prior to the Siting
Application.
While T&C negotiated
a
Host
Agreement with the
City
of Kankakee,
there
are
no provisions
for payment of a
host
fee
to
Kankakee
County. Second,
T&C
does
not address the reservation
of 20
years
of disposal
capacity for
waste
generated
in Kankakee
County. According
to the February
19, 2002
Host
Agreement,
30 years of disposal
capacity will
be provided for
the City
of
Kankakee, not
Kankakee
County.
Third,
the
County Plan requires
that
the
owner/operator
of any new
or
expanded regional
pollution
control facility post
and maintain
for the life of such
regional
pollution control
facility
either:
(1) an environmental
contingency
escrow
fund
of a minimum
$1
million dollars
based upon
an annual payment
not to exceed
5 years,
or
(2)
some other
type
of
payment
or performance
bond or policy
of onsite/offsite environmental
impairment
insurance
in
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a form
and
amount
acceptable
to
the County.
T&C
has
not established
this
environmental
escrow
fund.
Because
(1)
the County
Plan
provides
for
a single
landfill;
(2) the County
Plan
identifies
the
expansion
of the
existing
Kamkakee
Landfill
as the
preferred
alternative;
(3) there is
no
evidence in
the record
that an expansion
of
the Kankakee
Landfill
has
been
denied; and
(4) T&C
has not complied
with
three
County
Plan
requirements,
the City’s
finding
of
plan
consistency
is
against the
manifest
weight
of
the evidence.
CONCLUSION
Because
the
local
siting process
and
procedures
used
by the City
in
making its
decision
to
approve local
siting were
fundamentally
unfair,
and because
the
City’s determinations
that
Criterion Two
and
Criterion
Eight
were
satisfied
are against
the manifest
weight
of the
evidence,
the City’s
August
19,
2002
decision
granting local
siting approval
to
T&C for its
proposed
landfill
should
be
reversed.
Donald
J. Moran
Lauren
Blair
PEDERSEN
&
HOUPT,
P.C.
161 North
Clark
Street
Suite
3100
Chicago,
Illinois
60601
(312) 641-6888
Respectfully
Submitted,
Waste Management
of Illinois,
Inc.
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