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CONTROÔE

COUNTY OF

KANKA

(

NOV

2002

SMITH, STATE’S ATTOR

/‘4k’\-J

J1J

iLJ

STATE OF ILLINOIS

KANKAKEE COUNTY,

)

Pollution

Control

Board

)

Petitioners,

)

No. PCB 03-3

)

(Third-Party

Pollution

Control Facility

Siting

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,

)

PCB 03-33

vs.

)

(Third-Party

Pollution

Control

Facility

Siting

)

Appeal)

THE

CITY

OF KANKAKEE,

ILLINOIS,

CITY

)

COUNCIL,

TOWN AND

COUNTRY

)

UTILITIES,

INC. and

KANKAKEE REGIONAL)

LANDFILL,

L.L.C.,

)

Respondents,

)

PCBO3-35

WASTE

MANAGEMENT

OF ILLINOIS, INC.,

)

(Third-Party

Pollution Control

Facility

)

Siting

Appeal)

Petitioner,

)

(Consolidated)

)

vs.

)

THE CITY OF

KANKAKEE,

ILL1NOIS, CITY

)

COUNCIL, TOWN

AND COUNTRY

)

UTILITIES,

INC.

and KANKAKEE

REGIONAL)

LANDFILL,

L.L.C.

)

Respondents.

)

Table of Contents

STATEMENT OF FACTS

Facts Concerning the

Failure

of Applicant to Establish the

Jurisdiction

of the City

Karikakee to Hear Request for Landfill Siting Approval

Section 39.2 notices were sent before the City Council held the

February 19, 2002 hearing wherein the request of the

Applicant

to site a

landfill was considered

The owners of Parcel 13-16-23-400-001 were not sent notice

The

notice to

Illinois Central Railroad Company was not sent at least 14

days before application was filed

The return receipts of numerous parcel were not signed by

the owners of

the properties

Facts Concerning Fundamental Fairness

The public was

denied

the

opportunity

participate in the City hearing. . .8

The Public was also denied the opportunity to

attend the first night of the

hearing

The City failed to

the notice that indicated

the June 17, 2002

hearing would cease at 10:00 p.m

The City failed to provide copies of the

application

the County of

Kaiikakee

Pre-filing contacts and evidence of

bias

Improper and prejudicial visit to other

landfill facilities

The

February 19, 2002 meeting was a pre-adjudication of

facts and

impeachment of the Section

39.2

Hearing

The City

required FOIA requests for fundamental

information concerning

the landfill siting hearings

Facts concerning

hearing

officer bias

10.

Facts concerning post-filing ex parte

communication

Facts Concerning Criteria

Table of Contents

(continued)

II. EVIDENTIARY RULINGS WHICH SHOULD BE RECONSIDERED BY THE

ILLINOIS

POLLUTION

CONTROL BOARD

The

Hearing Officer’s Ruling that Evidence of Pre-Filing Contacts was

Inadmissible was Erroneous

All of the evidence of prefihing contacts

should

have been allowed because

the applicant admitted that

the

adjudication of the merits commenced with

these contacts

Any and all evidence concerning the February 19,

2002 meeting should

have been admitted because the meeting minutes were part of the

underlying record and evidence prejudgment of adjudicative facts

The

Hearing

Officer’s ruling as to

the inadmissibility of the March 12,

2002 letter from the Applicant’s counsel to the

City Attorney/Hearing

Officer Bohlen was erroneous

The Applicant’s Attempt to Supplement the Record with Testimony Concerning

Jurisdiction at the Illinois Pollution Control Board Hearing

Should

not have

been

Allowed

III. THE DECISION OF THE CITY

COUNCIL

MUST BE

OVERTURNED BECAUSE

THE APPLICANT FAILED TO ESTABLISH JURISDICTION

The City Council does not have Jurisdiction Because the

Applicant First made

its

Request for Site Location Approval to the City Council on

February 19, 2002

Without any Notice as Required by

Section 39.2

The

Applicant Failed

Establish Jurisdiction Because it Presented No Evidence

that it Served each of the Owners of Parcel

13-16-23-400-001

There is No

Jurisdiction

Because

Service Upon the Illinois Central Railroad

Company

was not Effectuated at

least 14 days Before the Application was Filed.38

The Return Receipts of Numerous Parcels were Signed by Individuals

other

than

the Owner of the Property and the Authority to Accept Service of

Process on

Behalf of the

Owner(s)

was not

Established

the Applicant

IV. THE CITY COUNCIL

PROCEEDINGS

WERE NOT FUNDAMENTALLY

FAIR

The Public was Denied the Opportunity to Participate in the

City hearing

Table of Contents

(continued)

The conflicting notices on registration and the City Police barring

people

from entering the chamber resulted in the public not being allowed

participate

Members

of the public that registered to participate were not allowed to

so by the City of Kankakee

The Public was also Denied the

Opportunity to Attend the First Night of the

Hearing

The

Public was Denied

Access to the Hearing Because the Hearing Officer did

not Follow the Notice that Indicated

the Hearing Would Cease at 10:00 p.m

The City Failed to Follow its own Siting Ordinance

Failing

Provide Copies

of the Application

the County

of Kankakee

The City Council had Improper Communications with the Applicant Including the

Pre-Judgment

the Merits

of the Application

Pre-filing contacts and evidence of bias

The Applicant hosted

improper

and prejudicial visit to

other landfill

facilities

The February 19, 2002 meeting was a pre-adjudication of facts and an

improper impeachment

of the Section 39.2 Hearing

The City Required FOIA Requests to Impede the Dissemination of Fundamental

Information Concerning the Landfill Siting Hearings

The Hearing Officer was Biased

The

Applicant had an

Improper

Post-filing Ex Parte Contact

with the City

Attorney/Hearing Officer Bohlen who was Communicating with the Decision-

Maker

THE COMBINATION OF NUMEROUS UNFAIR PROCEDURES IN THIS

CASE

RESULTED IN A FUNDAMENTALLY UNFAIR LANDFILL SITING

HEARING

VI. THE DECISION OF THE CITY OF KANKAKEE SHOULD BE OVERTURNED

BECAUSE THE APPLICANT FAILED TO MEET THE SECTION 39.2

STATUTORY

CRITERIA

111

Table of Contents

(continued)

The Application was

Inconsistent

with

the County’s

Solid

Waste

Management

Plan

in Violation of Criterion viii

Standard of

review

The plain language of the Solid Waste Management Plan

establishes

that

the County

desired only

one landfill and

that landfill would be the existing

landfill

when expanded

The Applicant

failed

to present any

testimony or

evidence

in regard

Criterion viii

The County presented evidence as to the

lack of consistency with the Solid

Waste Management Plan

The Finding as to Criterion ii was Against the

Manifest

Weight

the Evidence.70

The

Finding

as to

Criterion v was Against the Manifest Weight of the Evidence.73

VII. CONCLUSION

PETITIONERS’ COUNTY OF

KANKAKEE

AND EDWARD D. SMITH POST-

HEARING

BRIEF

NOW COMES Petitioners COUNTY OF KANKAKEE and EDWARD D. SMITH,

STATE’S ATTORNEY OF KANKAKEE COUNTY,

and through their attorneys, HINSHAW

CULBERSON, and as and for their Post-Hearing Brief,

state as

follows:

I. STATEMENT OF FACTS

The facts contained in this section are an attempt to summarize

the most relevant

evidence and testimony of the referenced issues. Attached hereto as Appendix A

is an additional

summary of certain testimony of many of the witnesses that testified at the IPCB

hearings

on this

matter.

Facts

Concerning the Failure

Applicant

Establish

the

Jurisdiction of the City

of Kankakee to Hear Request for

Landfill Siting Approval.

Section 39.2(b) requires that:

No later than 14 days prior to a request for location approval the

Applicant shall

cause

written notice

of such request be served either in

person or

registered

mail, return receipt requested, on the owners of all property within the subject

area not solely owned

the Applicant, and

the owners of

all property within

250 feet in each direction of the lot line of the subject property, said owners being

such persons or entities which appear from the authentic tax records of the County

in which such facility is relocated; provided, that the number of all feet occupied

all public roads, streets, alleys and other public ways

shall be

excluded in

computing the

250

feet

requirement; provided further, that in no event shall this

requirement exceed 400 feet, including public streets, alleys and public ways.

415 ILCS 5/39.2(b)(2000) (emphasis added).

In this case, the only evidence admitted at the local hearing by the Applicant,

Town

and

Country Utilities, Inc. and Kankakee Regional Landfill, LLC, (hereinafter “Applicant”), of the

notice to landowners

was

the affidavit of Mr.

Tom

Volini with Exhibits.

(Applicant’s

Ex.

2)1.

The record of the City

Kankakee shall be cited as (C). The exhibit to the City

record shall

identified

the name of the person or

entity

offering the exhibit

follow (Applicant’s Ex.). The transcript of the

IPCB Hearing of November 4, 2002 shall

cited (11/4 Tr.). The second day of the IPCB hearing on

11/6/02 shall

cited

(11/6 Tr.). The exhibits to the IPCB hearing are

identified

(Petitioners’

Ex.

Mr. Volini, President of the

Applicant,

determined

that the individuals whose names were

identified in Paragraph 5 of the affidavit were the “necessary” owners of all those parcels within

400

feet

of the

subject

property,

which were entitled

to receive service of the “pre-filing” notice

required by 415 ILCS 5/39.2(b). (Applicant’s Ex. 2).

The

Affidavit further provides that the

registered mail receipts attached to the Affidavit evidence the landowners that were served the

required pre-filing notice. (Applicant’s Ex. 2,

Para. 5).

Section 39.2 notices were

sent before the City

Council

held the

February

19,

2002 hearing wherein the

request of the Applicant to site a

landfill

was

considered.

On or

about

February 19, 2002, corporate

representatives of the Applicant,

their

attorney,

the

project engineer

and other

Applicant witnesses met with the entire City Council of the City of

Kankakee. (11/4 Tr. 229). The official minutes

of that meeting,

reflect that

the

Mayor

of the

City of Kankakee told the City Council:

OK, we’ve

got a

special

presentation tonight but before I start

with that

presentation I’m going to ask the City Council for special indulgence on this

particular issue. As you well know, people

from

the

audience

are

not

allowed

speak

at a

regular

City Council meeting. But I believe this issue is of extreme

importance to the City of Kankakee. We are talking

about

the siting of

landfill

within our community. . . As we go through this presentation, we want you to ask

questions, you members of the City Council, you the members of the Planning

Commission, and there are three members of the press over here that we will open

it up if the Council

gives them permission

to do

that.

So,

the members of the

Council, our department heads, the planning commission and the press will have

the

opportunity to ask questions of Town and Country Utilities as we

through

this process . . . We started this process well over two years ago . . . And, we’re

going to continue that process and we’re

going to

have

presentation tonight

Town and Country Utilities . . . so, with that, I am going to ask Mr. Volini to

come forward.

He’s got a

presentation

that they want to make, to talk about .

where we are,

and where we started, to where we are today and what

direction

we’re going. And, at the proper time, giving the members of the City Council,

department heads, Planning Commission members or the press are welcome to

ask questions.

3143-3 144)(emphasis added).

The City and the

Applicant

have stipulated that the minutes to the meeting are

fair

and

accurate and that every

statement that is referenced in those meetings was indeed made on February 19, 2002. (11/6 Tr.

180).

Mr.

Volini

then stated that “with

tonight

we have

our team that

is going to present

our

siting

case to you. .

Eand],

the

reason

that we’re going to

make the presentation

as George

Mueller,

our lawyer,

will explain

you

has to do with the

law.

And, the

reason we want to

able

to have

this

unfettered opportunity

to talk to you without

the filter

of lawyers, without

the

rancor and the

back and

forth

and that, unfortunately,

the

lawyers

bring to the process

want

to be

able to speak with

you person to

person about things

that

believe

in, concepts that

we’ve

proved

and

environmental

protection that we’ve

achieved.” (C

3145)(emphasis

added).

Mr. Volini indicated “at

tonight’s meeting

we will have

an opportunity

to have our

expert

witnesses

meet

with

you, talk to you about

their

fields

of expertise briefly,

talk

you about

the

process that’s

dictated by the

statute

that

George Mueller will

describe, talk

to you about the

proof.

You are called

upon to be judge

and jury.”

3145)(emphasis

added).

Mr.

Volini also

mentioned

that “...I have

some packages

that will be

referred to in this

presentation

for each of

you”.

Id.

At the

conclusion

of the lengthy

presentation,

and before the

Applicant took

questions

from

the

city

council,

Mr.

Volini closed by stating,

“you’ll

hear this without so

much emotion

and with

bunch of

lawyers fighting

with each other

in about

120

days, but we

wanted you to

hear it from

us first.” (C

3155)(emphasis

added).

The

applicant and

its

witnesses

then fielded

numerous

City Council

questions concerning

the application

and

criteria

for the

majority of the

remainder

of the meeting.

3155-3165).

The owners of

Parcel 13-16-23-400-001

were

not sent notice.

The

affidavit of Mr.

Volini indicates that

the

following

owners of

Parcel

13-16-23-400-

001: Gary L.

Bradshaw,

James

Bradshaw,

Jay D. Bradshaw,

Ted a. Bradshaw,

Denise

Fogle,

and

Judith A. Skates

were

entitled

prefihing

notice.

(Applicant’s

Ex.

2). The affidavit

indicates

the

address

for these

individuals

was determined

to be

22802 Prophet

Road, Rock Falls,

IL.

Id. However, there

is no

return

receipt

for Gary

Bradshaw,

James

R. Bradshaw,

Jay D.

Bradshaw, Ted

Bradshaw,

Denise Fogle).

(11/6

Tr. 297). There

is a receipt for

only

Judith

Skates, but it

was sent to an

Onarga, Illinois address,

and was

signed

by one Richard Skates.

Id.

Ms.

VonPerbandt

testified at the IPCB

hearing that she is the

secretary

the applicant’s

counsel and operated

process

serving business and

was the

individual

that coordinated

the

service

of the Section

39.2 notices. (11/6

Tr. 282). She admitted

that

she has

worked for the

Applicant’s

attorney for 3

years and that

she is aware that the

failure to

provide notice is an

important

matter in

landfill siting hearings

and could cause

problems for her

boss’s case. (11/6

Tr. 294-295).

Despite

her obvious biases

she confirmed the

receipts attached

to Mr. Volini’s

affidavit,

(Applicant’s

Ex. 2), “appear”

to reflect all

of the notices that

were

sent out.

(11/6 Tr.

296). Ms.

VonPerbandt

also admitted that there

was no

return receipt for

James Bradshaw.

(11/6 Tr.

297).

She also admitted

that

there

are

no receipts for J.D.

Bradshaw or

Ted Bradshaw.

Id.

Applicant’s

Ex. 2 also shows

such

receipt for Gary

Bradshaw nor

Denis Vogel.

(Applicants

Ex. 2).

Ms.

VonPerbandt

then admitted that

least 14

days before the

application was filed

she

attempted to

personally serve

Gary

Bradshaw,

James Bradshaw,

J.D.

Bradshaw,

Ted

Bradshaw,

and

Denise

Vogel, but was

unsuccessful.

(11/6 Tr. 297-298).

She

also testified

that

during

the

week of

February 18,

2002 she was told that

the property

near

the landfill

was

held in trust

but

Ms. VonPerbandt

never acquired

service

on the trust. Id. at 299.

She never

went to

the

clerk’s

office

to acquire the trustee’s

deed

(which would

have indicated the

trustee’s identity).

Id.

Instead,

all the server did

was speak

with an unnamed

individual at the

Prophet address

who

allegedly

told Mr. VonPerbandt

that

she was the

daughter of Judith

Skates and provided

the

address

of Ms. Skates,

in Onarga, Illinois.

This unnamed

individual

stated that

Ms. Skates was

handling

the

property!?

which

was

held in

trust. Id. at 286. Ms.

VonPerbandt

did not ask this

unnamed

person if she knew

the addresses

of any

the other

owners of the

property such as

Gary, James,

or J.D. Bradshaw.

Id.

300.

She also never asked

this

unnamed

individual if she

had the

legal authority to appoint

anyone

the agent for service

of process

for Gary Bradshaw,

James

Bradshaw, J.D.

Bradshaw, Ted

Bradshaw,

Denise Vogel, or Judith

Skates.

Id. at 301.

Ms.

VonPerbandt admitted

that she assumed

the individual

she spoke with did not

have

the legal

authority to

name an

agent

for the service of process

the

owners

of the parcel at

issue.

Id.

The

notice

Illinois Central Railroad

Company

was

not sent

at least

days

before application

was

filed.

Exhibit B to

Mr. Volini’s

affidavit contains

the only receipt

for the

owner

“Illinois

Central

Railroad

Company”

as identified

Paragraph

of the affidavit. (App.

Ex. 2,

Para.

Ex. B).

The return

receipt for this owner

is dated “3/6/02”.

Id. The Application

was filed on

March 13,

2002. (11/4

Tr. 209).

The

return

receipts of numerous

parcel

were not signed by

the

owners

of the

properties.

Service

was

not

properly effectuated

on the

following properties

evidenced

by Mr.

Volini’

affidavit:

Parcel

13-16-23-400-001.

Mr.

Volini indicates

that the

following

individuals

are

identified

owners

of the property by the

Kankakee County

Supervisor

Assessment:

Gary L.

Bradshaw,

James

R. Bradshaw,

J.D.

Bradshaw, Ted A. Bradshaw,

Denise

Fogel, and Judith

Skates with

an address of 22802

Prophet

Road,

Rock Falls, Illinois

61071.

However,

there

is no

registered

mail

receipt

indicating

that

anyone

at 22802 Prophet Road

was served.

The

same

parcel

number is

listed in the

affidavit with an identification

Judith A. Skates,

203

South

Locust, Onarga, Illinois

60955 as

the owner of record.

However,

the registered

receipt is not

signed

by Judith Skates

instead is signed

by a Richard

Skates, and no

verification

is included

that;

1) he is the authorized

agent

of Judith Skates, or

2) that

Judith

Skates actually

was

given

copy

the Applicant’s

pre-fihing

notice not less than

14 days prior to

filing of the

application in

this matter.

Accordingly, the record

established

in this matter only

reflects at

best

that

non

owner of the property

signed

the

registered

receipt, and there is

evidence

that any, (let

alone

all) of

the actual

owners as

appear on the appropriate

County

tax records

received the notice.

Parcel

Number

13-16-24-300-017.

The affidavit indicates

that the owners

of this

property are Linda

Skeen and

Robert Skeen. However,

the registered mail

receipts are signed

one

Skeen, and

there is no indication

that this individual

the

authorized service agent

Linda or Robert

Skeen.

Parcel

Number

13-16-24-300-019.

The owners are

listed

as Gerald

M. Cann, Shirley

Marion,

Delmar L. Skeen,

Robert

Skeen,

Norma

Staukkenberg, Judith

M. Trampanier and

Skeen Farms.

However, the

registered mail receipts

are all signed by

one

Skeen,

and there is

no indication that

this

individual

is the authorized

agent of

any

of the known owners

of the

property. None of

the first names

of the

known

owners

the property

begin

with the

letter

Parcel

Number 13-16-24-400-001.

The owner

indicated as

being Skeen Farms

and the

registered mail

receipt is

signed

Skeen; however,

there is

again no indication

that this

individual is

the authorized service

agent

for service

of process.

Parcel Number

13-16-24-400-003.

The designated

owner

is listed as

William Ohrt,

however,

the

registered

receipt

is not

signed

William

Ohrt

and is

instead signed by

one

Marilyn

Ohrt and there is no

indication that

she is the authorized

service agent

of William Ohrt.

Parcel Number

13-16-24-400-009.

Robert

Skeen is

identified

as the owner,

however,

once

again the return

receipt

is signed

Skeen with

indication

that

he is the

service agent

of Robert

Skeen.

Parcel Number

13-16-25-100-002.

The property

owner is identified

AT&T

Property

Tax,

however, it is signed

by one E.

Myers. There is no

indication that

he is the service agent

the identified

owner.

Parcel

Number 13-16-25-100-003.

The

owner is identified

Benson

M. Hansen,

however,

the

receipt

is signed by one

Kevin Hansen

with no

indication

that

he is the

authorized

service agent

of the

owner for purposes

of service of

process.

Parcel

Number 13-16-25-200-001.

The

affidavit indicates

the

owner

is one Willie

Walker, however,

the

receipt

was signed

a Leslie

Wilson, Jr.

and there is no

indication that

individual was the

authorized agent

of the

owner

for service of process.

10.

Parcel

Number

13-16-25-400-001.

The owner

is identified

as Frederick Forte

and Mary

Thompson,

however,

the

receipt is signed by

someone whose

name

appears

to be Oscar

Solvang

and

there is no

declaration that

Mr.

Solvang

was the service agent

of the identified

owners

for

purposes of

service of process.

11.

Parcel

Number

13-16-26-200-012.

The

identified

owners are

Adrien Guiterrez

and

Louise

Guiterrez,

however, the

receipt is

signed by a Candie

Martens with

declaration

that

individual was

the

authorized

service agent of

the identified

owners.

12.

Parcel

Number

13-16-26-200-013.

The

identified

owners

are

Adrien

Guiterrez

and

Louise Guiterrez,

however,

the receipt

again

signed

a Candie

Martens

with no declaration

that individual

was

the

authorized

service

agent

the

identified

owners.

13.

Parcel

Number

13-17-19-301-002.

The

affidavit

indicates

the owner

this

parcel

was

Charles

Burke,

however,

the mail

receipt

was

signed

one Mary

Grace with

indication

that

she was

the authorized

service

agent

of the owner.

14.

Parcel Number

13-17-19-100-003.

The

owner

is identified

William

Ohrt,

however,

the

mail

receipt is

signed

one

Marilyn

Ohrt with

indication

that

she

the agent

William

Ohrt for

service of process.

(Applicant’s

Ex. 2).

Facts

Concerning

Fundamental

Fairness

The

public was

denied the

opportunity

participate

the City hearing.

It is

undisputed

that conflicting

notices

the Section

39.2

hearing

were

published

the

public.

(11/4

Tr. 306-307).

Specifically,

the

siting

ordinance

(which

was

also

published

the

paper) required

“any

person or

attorney representing

such person,

or entity

wishing

to testify,

present

witnesses

and

cross-examine

witnesses

must

file a

written

appearance

the

Office

of the

City Clerk

not less

than

five

(5)

days prior

the to [sic]

first date

set for

public

hearings

pursuant

the

Siting

Ordinance.

3237).

However,

the applicant

published

a notice

that provided

that

people could

up until the

day

of the

hearing.

(Applicant’s

Ex. 6).

the first

night

the hearing,

the

County

Kankakee

motioned

quash the

proceedings

partly on the

grounds

that

the

notice

the

proceeding

was improper.

2191-

2197).

Oral argument

was had

on that

motion

wherein

counsel for

the County

warned

the

hearing officer

that

the

improper

notice

would

create

a chilling

effect

upon the

public

participating

in the

hearing.

0036).

The hearing

officer

inquired

counsel was

aware of

any

specific

individual

that

did

not

participate

the

hearing because

the conflicting

notices.

0036).

that time,

counsel

was

unaware

any specific

individual

that

was unable

participate

due to

the conflicting notice but again warned that it was possible that such

individuals existed.

0036).

Indeed, at the

Illinois Pollution Control Board hearings, it became absolutely clear that

people were denied an

opportunity

participate in

part

because of the improper notices and in

part because

the

City

police barred people from entering the hearing room on the first night of

the

hearing and people could not hear an announcement made by the

hearing officer that

they

could have

registered at any

time that evening.

(11/4

Tr. 109,

306-307).

For example, Mr.

Darrell William Bruck

testified

the IPCB hearing that before the City

hearings commenced, he saw a legal notice that stated one set

of rules and a newspaper article

that

stated a different set of rules. (11/4 Tr. 100). He

recalled that the notice in the newspaper

indicated that people

wishing

sign

up to object

had until the day of the hearing, however, he

had seen

article in the same paper stating that the Kankakee City

Council

had set a

rule that

one

had to sign up five days

before the proceeding. (11/4 Tr. 100). The week before

the

hearing

(between June 12 and June 17), Mr. Bruck

telephoned the Kankakee City Clerk,

Anjanita

Dumas.

(11/4 Tr. 113). Mr. Bruck explained that the

reason he contacted the City Clerk was to

“attempt to sign up as an objector” (11/4

Tr. 117). The City Clerk told Mr.

Bruck

that the

advertisement that had been placed

in the newspaper

the applicant was

irrelevant

and rather

the

City Council rules applied. (11/4 Tr. 117). He was

told it was “too late” to register as an

objector with the

City Clerk.

1549-1550).

Mr. Bruck did attempt to go to the

siting hearing on June 17, 2000, however, when he

arrived at

shortly after 8:00 p.m. (the time the hearing was

scheduled to commence), he was

unable

enter the hearing room due to the extreme crowd. (11/4

Tr. 109). He could not

get

into the

Council Chamber until after

10:00

p.m. and at

no time while he was in the hallway did

ever hear any announcement

that he

could sign up

and

(11/4 Tr. 109).

While

Mr. Bruck was in

the hallway,

he could not hear any

of the witnesses nor

the lawyers’

arguments nor

any announcements

regarding

the rules of the proceeding,

nor

any

declarations

regarding the rights

of the citizens.

(11/4

Tr. 105). At

no time did he see anyone

come

into the

hallway

from the City

Council

chambers

to make an

announcement to the

people

the

hail

about signing up to

participate. (11/4

Tr. 106). As a matter

of fact, at

no time on June 17th

did

he ever

hear an

announcement

that he

could sign in and

(11/4 Tr. 107).

The Kankakee

City Clerk,

Anjanita Dumas

explicitly

testified that she

never read the

siting

ordinance before

the siting hearing

and at no time did

anyone

discuss

or instruct her

that

ordinance.

(11/6 Tr.

231).

Nonetheless,

she was the individual

the

City of Kankakee that,

pursuant

to the ordinance,

was left

with the responsibility

accepting

the appearances

individuals

who wished

to participate

in the hearing. (11/6

Tr. 239).

Ms.

Dumas

testified

that

she “didn’t know”

if anyone in her

office ever

informed the members

of the

public

that

they had

to use the

word “participate”

in their

appearance forms

in order to effectuate

an appearance

as an

objector. (11/6 Tr.

248). The City

Clerk

maintains she

never had

any conversations with

any

member of the public

explaining

them what needed

appear in

their letter

which

they were

required

to file in order to

show that they

wanted to

participate

in the hearing.

(11/6 Tr.

248).

Her

only excuse

for not having

those conversations

was an

assertion

that “we

don’t give legal

advice

in the

office

and I can’t write a

letter

for someone.”

(11/6 Tr. 248).

Hearing Officer

Bohien admitted

that unless

someone

used the

word

participate

in their

appearance

form,

that the form was

simply filed in

the record as

indicating someone

who

wished

to give

public

statement. (11/4 Tr.

332). What Mr.

Bohlen failed to

recognize is that

the siting

ordinance

requiring

five (5) days notice

explicitly

stated

“this rule does

not

apply to

a person or

entity who

desires

only

present an oral

or written

position

statement

the

City

Council.”

3237).

Ms.

Patricia

O’Dell testified

that she was

aware that the legal notice

that was sent

said

anyone

could sign up until

the

day

the hearing, Monday,

June 17th, but she

read,

and heard,

another

statement that said

that anybody

who

wanted to

participate

had to sign

up five (5) days

before the hearing.

(11/6

Tr.

30-3

1). She, like

Mr. Bruck, attempted

clarify the

confusion by

telephoning

the City Clerk’s office.

Her confusion

was not cleared

during the

telephone call,

so she

went to the City

Clerk’s office

on June 12, 2002.

(11/6 Tr. 31).

that

time, she

asked

the City

Clerk

if there

was a form or document

that she

needed to sign in order

to be

able

to ask

questions and make

comments

at the public

hearing.

(11/6

Tr. 36-37). She

was

told “there

was

no document

and no

form and I was to write

letter saying

I wish to speak.”

(11/6 Tr. 37).

Ms.

O’Dell then asked

whether her

time for submitting

her appearance

was

the day of

the hearing or

five (5)

days before and

was told “if

[she] wanted to go by

the legal notice,

[she] was

welcome

to.” Id.

She then asked

Ms. Dumas who had the

final authority

on making

the deadline decision

and was told

the City Clerk

had

such authority.

(11/6

Tr.

37).

She asked the City

Clerk

if they

had

the

final

authority “then

what

did they say

was the final day

that I could file

document

participate.” (11/6

Tr.

37).

She was

finally told it

was five days ahead

and

therefore

she had to

file it by

June 12th.

(11/6 Tr. 37). She

then drafted a letter

pursuant to

the City Clerk’s direction

and

gave it

the City

Clerk on June

12, 2002.

2230).

This letter

provided “I would

like to

Ms.

O’Dell’s

appearance form is

found at two places

in the

City

of Kankakee

record.

First

at Pg. 2230, which is

not date stamped, an

again at Pg.

2233,

and at

this time date stamped

June 19,

2002

6:27

p.m. For some

reason, a Ms. Olivia

Wagner

and

Ms. Ruth Romer find themselves

in a

similar

circumstance

as Ms.

O’Dell

as to the appearance

form

which

is found in two different

locations within the

record. The first

location not

dated

stamped and the

second location date stamped

June 19 at

6:27 p.m. This is

particularly troubling

since Ms. O’Dell

explicitly

testified

that she filed her appearance

on June

12, 2002 at around noon.

speak at the

landfill

public

hearing being

held

on June 17, 18, 19,

20,

2002

and it was

signed and addressed

Ms. O’Dell

with her telephone

number. (C226).

Despite the fact

that she was told by

the City Clerk that

she had to

file

a letter saying she

wanted

to “speak” in

order to participate

and that she indeed

filed

that

letter, she was not

recognized

as an

objector

on June 17, 2002,

and was not

allowed into the

public hearing room

due to

the

overcrowding.

(11/6 Tr. 49).

It was not until the third

fourth

day of the hearing

that

Ms.

O’Dell

was successful

in convincing Hearing

Officer Bohlen

that

she

should

have been

recognized

as a participant

and at that

point, she was then

allowed to

ask questions and fully

participate.

Id. However,

that

time,

one of the witnesses

was

no longer

available

for cross-

examination,

Dr. Schoenberger,

the only

witness

called by

the applicant as to

Criterion viii.

Id.

He testified

and was

cross-examined

on June 17,

2002 during

which time Ms. O’Dell

was forced

stand in the hallway

where

she

could not hear or see

the

proceedings.

Id. Hearing

Officer

Bohlen

acknowledged

that all of the forms

that did

not

use

the word “participate”

were

simply

filed in

the City record

at Pgs. 2223-2235

and

referenced

in the table of

contents

as “written

requests

make public

comments.”

(11/4 Tr.

330).

The Public was

also denied

the opportunity to

attend the first

night

the

hearing.

Hearing Officer

Bohien admitted

that he was

aware that the

crowds would be

substantial.

(11/4

Tr.

320). As

a matter of fact, the

applicant’s

representative,

Ms. Jaymie

Simmon,

informed

the

City

Council

at the February 19,

2002 meeting

that the hearings would

crowded.

3154).

Furthermore,

the week before

the hearings

Ms. O’Dell explicitly

inquired

of both the City Clerk

and Hearing

Officer Bohlen

whether

there was

going

any backup plan

if the hearings were

overcrowded.

(11/4

Tr.

336).

Ms.

O’Dell had

viewed

the

room and knew that

a citizen’s group

she

was involved in alone

would

take

up the vast majority of

the seats

available

to the

public.

Id.

The City evidenced its expectation of substantial crowds

putting additional chairs in the City

Council chambers. (11/4 Tr. 321).

Explicit

objections

were

even

made before

any

opening

statement or

witness to the hearing proceeding on the grounds that the public was not being

allowed into the

hearing room and that of the public

could

not hear the announcement

the

hearing officer that

they could sign in to register

to participate. (C 0039). That

motion

was

joined by the

Kankakee County state’s attorney, Edward Smith

(C 0039).

Additionally, the

evidence was that the annexation hearings for the landfill, which

took place several months

before the landfill siting hearings, were also overcrowded. (11/6 Tr. 110). At those hearings,

people were allowed to stand in the back of the room, but for some reason the people that

attempted to stand in the back of the room of the Section 39.2

hearing were told

leave. Id.

On June 17, 2002, the seats to the Council chamber room

were

completely occupied well

before the meeting was scheduled to start at 8:00 p.m. (11/4

Tr.

63,

109, 123-124, 143). People

were

told they could not stand in the back of the hearing room. (11/4 Tr. 66, 143).

People filled

the

foyer outside the chamber room and the two stairwells and landing leading from the first

floor door. (11/4 Tr. 66). There were even people standing outside.

(11/4

Tr.

78).

From the hall

no one could see, nor hear, the proceedings. (11/4 Tr. 67, 75-76, 105,

125).

There were only six

chairs in the hall and the majority of people were forced to stand.

(11/4 Tr. 144). It was hot and

uncomfortable to people including the many elderly who

attempted to attend. (11/4 Tr. 67, 78,

79). Armed

policemen kept people from entering the building and from entering

the Council

chambers. (11/4 Tr. 68-69, 130, 143). No

one heard anyone from the City or make any

announcement that people could sign up to participate that evening.

(11/4

Tr. 80, 107). Many

people were disappointed in the lack of accommodation and

left after they realized they were not

going to

allowed

attend

the

hearing.

(11/4

Tr.

66,

108).

Many

people

never

returned

due

to their

experiences

on the

first

night.

Id.

the

first

night,

even

elderly

people

that

were

able

find

a seat

such

Ms. Betty

Elliott

were

told

armed

City

policemen

that

they

could

not

sit

in the

seats

that they

were

able

to find.

(11/4

Tr.

158).

This

happened

Ms. Elliott

four

different

occasions

until

she

was

finally

banished

to the

hallway

where

she could

neither

hear

nor

see the

proceedings.

Id. The

room

was

overcrowded

the

second

night

well,

but

that night

speaker

system

was

placed

the hallway.

(11/4

Tr.

323).

The

City

failed

the

notice

that indicated

the June

17,

2002 hearing

would

cease

at 10:00

p.m.

The

public

notice published by

the

Applicant

provided

that

the

first night

the hearings

would

commence at 8:00

p.m. and

conclude

10:00

p.m.

(Applicant’s

Ex. 6).

Members

the

public

that

were banished

to the

hallway

left the

hearing

shortly

before

10:00

p.m.

because

they

understandably

believed

that the

hearing

was going

conclude

at 10:00

p.m. and

they

had been

unsuccessful

in getting

into

the

room

that

time and

therefore

determined

that there

was

need

stay any

later.

(11/4

Tr. 133).

Obviously,

the

people

in the

hallway

could

not hear

the

statements

made

the

hearing

officer

that

the

hearing

would

continue

regardless

of the

hour

until

the

completion

of the

Applicant’s

witness

on Criterion

Dr.

Schoenberger.

(C 0013).

Indeed,

the County’s

cross-examination

of Dr.

Schoenberger

did not

even

commence

until

around

11:00

p.m.

and

the

hearing

did

not

conclude

until

12:30

a.m.

June

18, 2002.

0013).

The

City

failed

provide

copies

the

application

the County

Kankakee.

The

City

Kankakee

ordinance

number

01-65

was

adopted

October

15,

2001,

and

provides

at Section

4(d)(1):

Upon

receipt of a

proper and

complete application

and payment of the

applicable

filing fee

deposit,

the

City Clerk shall date

stamp

all

copies and immediately

deliver

one

copy

the

Chairman of the County

Board

and one copy to

the

Kankakee

Solid Waste

Director.

Kankakee

County Siting

Ordinance,

01-65,

4(d)(l)

(October 15, 2001).

The

City

has

admitted that the

ordinance was not

followed

and copies of the

application were

not

provided

the County.

(11/4

Tr. 305;

11/6 Tr.

237-238).

The

City

has also

admitted that the ordinance’s

requirement

that

the application

be turned over

immediately

provide the County

with

every

possible

opportunity

review, analyze,

test and

comment

upon the

application before

the

39.2

proceeding

began.. (11/4

Tr. 305).

The City Clerk

Anj anita Dumas

admitted

that she

never

even read the

siting ordinance

before

her deposition

October 25,

2002 in discovery of

these proceedings.

(11/6

Tr. 232).

She

further admitted

that

no one

from

the

City, including

Mayor Green and

City Attorney

Bohien,

ever informed

her that

she was

supposed

send

copies of the

application to

the

Chairman

of the County

Board and

the County

Solid

Waste

Director.

(11/6 Tr.

234-235).

The

Mayor

and Mr.

Bohlen

both

admitted

that

in their

opinion the siting

ordinance

should have been

followed

but was

not.

(11/4

Tr. 305; 11/6,

237).

Furthermore,

the City

admitted that

the

reason

that

the copies were

supposed

to be

turned over

immediately

was to

provide

the County

with

every

opportunity to

review, analyze

and test

the

application of

a landfill that

was proposed to be

erected

in Kankakee

County. Id.

Not only did the

City

Clerk

fail

provide

copies

of the

application

but she

required

the

County’s

outside

engineering

expert to

issue an FOIA

request

for

the

application

and pay

approximately

$1,000.00

for the

application.

Id. It

was not

until over six

weeks after the

application

was

filed that an outside

engineering

consultant

hired

the County

was

finally

able

acquire

the application

and

was sometime

after

that

it was

able

to acquire

the drawings

that

came

with

the

application.

(11/6

Tr. 239).

Unlike

the

Rules

and Procedures

Ordinance

number

02-24,

which

provides

that

“in

order

to ensure

fundamental

fairness,

compliance

with

the

Act,

and to

protect the

pubic interest,

the hearing

officer

may waive

any

these Rules

and

Regulations”,

3239),

Siting

Ordinance

number

01-65

does

not

contain

any

reference

that

any City

official

may

waive

any portion

of the

siting

ordinance.

See Kankakee

City

Siting

Ordinance,

01-65. On

the contrary,

the Kankakee

County

siting

ordinance

0-65 provides

“it

is apparent

the

Kankakee

City

Council that

due to

the

necessarily

technical

nature of

the

information

provided

to it relative

to the

above-mentioned

criteria, a

valuation

such

information

will require

the

analysis and

opinions

of qualified

professionals,

without

which

the

Council

will be unable

to properly

and

effectively

fulfill the

mandate

proposed

upon it

the General

Assembly.”

3212).

The ordinance

further

provides

that

“deciding approval

procedures

and

criteria

provided for

in the Act

and

in this

ordinance

for

the

new

[Pollution

Control

Facilities]

shall be

the exclusive

siting

procedures

and

rules

and

approval

procedures.”

3220).

Finally,

the Act

provides at

Section

10:

“this

ordinance

and

the

attached

rules and

procedures

(Ex. A)

shall

take effect

immediately

upon

its

passage and

approval

by the

Kankakee

City Council

provided

by law.”

3220).

Pre-fihing

contacts

and evidence

bias.

The Mayor

Kankakee,

Donald

Green,

testified

that

realized at

some point

that funds

could be

generated

for the City

negotiating

lucrative

Host

Agreement

with

a landfill

operator.

(11/6

Tr.

169). Mayor

Green

had

numerous

conversations

with

Tom

Volini and

other

representatives

Town

and

Country,

even before

a request

for proposal

was

made for

the

landfill to

constructed

in the

City

of Kankakee.

(11/6

Tr. 158-160).

Eventually,

Town and

Country

made a

request

for proposal

which

was

accepted

the City

of Kankakee.

Id.

However, the

land that Town

and Country

proposed

to build a landfill

upon

was not

within the

City of Kankakee

and instead

was located

in the

unincorporated

County lands over a

mile from the city streets

of the City

of Kankakee. (11/4

Tr.

229).

Therefore, the City,

through

Mayor

Green

and Christopher

Bohlen,

assisted Town

and Country in seeking

the

annexation

the property which

was not contiguous

to the City

Kankakee

except for a narrow

railway strip

that

extended from

the

City out into

County property.

(11/4 Tr. 225).

The Mayor and

Mr.

Bohien

both

admitted

that the proposed

area of the

landfill is actually surrounded

properties

that

are not annexed

into the City. (11/4

Tr.

224-227;

11/6

Tr. 153).

The

City

Attorney

Bohlen and Mayor

Green

both

acknowledged that

the time

the

annexation process was

going forward,

they

were aware

that once the

property was

annexed into

the

City that the City

would be

the

siting authority instead

the County.

(11/6 Tr. 153;

11/4

Tr.

224). No other

explanation for the

annexation has been

provided.

The

Applicant does

not

own

the land at issue and

was evidenced

by the

testimony

the underlying

hearing,

the landfill

will

actually

be placed into

an aquifer which

will

require

an unusual

“over-engineering

of the

landfill”.

With the

City’s

assistance,

the Applicant

was

successful

in annexing the

property into

the

City thereby

establishing

the City

as the

siting authority.

(11/4 Tr.

227).

the time

Mr. Bohlen was

assisting the

Applicant in

the annexation process,

Mr.

Bohlen

had reviewed

the county solid

management

plan and “believed by

then

it did

call for only

one landfill”.

(11/4

Tr. 222).

Mr. Bohlen knew

that

there already

was

landfill operating within

the County.

(11/4

Tr. 222-223).

At the

same time

that the City was assisting

and

hearing

the

annexation

petitions, Mayor

Green

and City Attorney

Bohlen were

also in the process

of negotiating

lucrative

Host

Agreement

with

Town and Country.

(11/4 Tr. 227-229).

Mr.

Bohlen admitted that

under

the

agreement the

City would receive

certain compensation

for every ton

of waste that

was accepted

by the

landfill.

(11/4

Tr. 232).

This agreement,

which is referenced

in the table of

contents

the City

of Kankakee

as an “Agreement

for Siting”

provided an estimate

that in the first

ten years

operation the landfill

would

generate

approximately

$42

million for the

City of Kankakee.

(11/4

Tr. 232).

Mr.

Bohien

was aware that the estimated

compensation

would

be between

million and

million

per year

for the life of the facility

which

was

estimated to be

open for 25

to 30 years. (11/4

Tr. 236).

Individual aldermen

were aware

that Mr. Bohlen was

negotiating,

drafting

and

communicating

with Town and Country

about the

Agreement for

Siting.

(11/4 Tr.

237,

238).

Mr.

Bohlen admitted that

he spoke

with agents of the

Applicant on

numerous

occasions regarding

the Host

Agreement and

personally

performed rewrites

on at

least seven

occasions.

(11/4

Tr. 241).

further

evidence

of the cooperative

effort

between

the City of

Kankakee and Town

and Country in

attempting to site

this

landfill,

the Applicant

even assisted the City

in drafting

its

Solid

Waste

Management

Plan. (11/4 Tr.

256).

Mr. Bohien

admitted

that

he received

examples

of such plans from

the Applicant.

Id.

Not only

did the Applicant

assist in

drafting the Solid

Waste Management

Plan,

but it is

also

apparent

from a

correspondence dated

March

12,

2002, that the

Applicant’s counsel

drafted

the

Rules and Procedures

for

the very landfill

siting hearing at issue.

(Petitioner’s

Ex. 2 attached

hereto

Petitioner’s

Appendix

C).

That

letter

explicitly

provides

that

Mr.

Mueller “previously

drafted

for Tom Volini

proposed

Facility

Siting

Ordinance and

Accompanying

Rules and

Regulations

which

believe have

been adopted.”

(11/4 Tr.

249). The letter

is sent to Mr.

Christopher

Bohlen

and says

“if you want to defer

cross-examination

until

after the

of the

applicant’s

case, and

then if

cross-examination is

conducted as

a “round table”

format

where

all

the witnesses are available at once, the City Council will need to amend Section 6(e)(14) of the

existing Ordinance

found on page 10 of my draft copy”.

Id.

Mr. Mueller then

explained how the rules and procedures should be amended to read as

follows:

Cross-examination of any party’s witnesses shall be deferred

until completion of

the direct testimony

of all of that party’s witnesses. Thereafter, all witnesses shall

simultaneously available for cross-examination so the

questions

are

directed

the witness most

qualified

answer. Any dispute between the parties as to which

witness

should

answer a question of cross-examination shall be resolved by

the

Hearing Officer.” (Petitioner’s Ex. 2, attached hereto as

Petitioner’s Appendix

C).

A review of

Section

5(e)

of the Rules and Procedures

3236) establishes

that some of

this language

was adopted verbatim by the City Council.

Specifically, the reference to “cross

examination of any party’s witnesses shall be deferred until the

completion of the direct

testimony of all that party’s

witnesses” appears in the ordinance itself. Id.

Likewise,

the

language that “all witnesses

shall

simultaneously available for

cross-examination [so that]

questions [shall be] directed to the

witness most qualified to answer.. .“ appears

in the city

ordinance as

well. Id. Finally, the discussion that the

Hearing Officer shall resolve

any

dispute

is also contained within the

city ordinance. Id.

Improper and

prejudicial visit

other landfill facilities.

Mr. Bohlen admitted

that the Applicant took the City Council on a

bus trip to an example

landfill,

before the application

was filed. (11/4 Tr. 270). He did not

recall any objectors being

invited. Id.

The February 19, 2002 meeting was a

pre-adjudication of

facts

and

impeachment of the Section

39.2 Hearing.

At some

point before

the day

of February 19, 2002, a

meeting was held between

Mayor

Green, City Attorney Bohlen, Tom

Volini, and other agents of Town and

Country at which time

the idea was

suggested

of making

presentation

to the City Council

before the

required 39.2

notices would

sent out

on February 20, 2002.

(11/4 Tr.

210). The Mayor and

City

Attorney

Bohlen agreed

that the presentation

would be made. Id.

Specifically,

the

Mayor

agreed that he

would provide

“special

indulgence” to the

applicant to speak

on February

19,

2002, because

believed Town

and Country

could solve the financial

dilemma

of the City

of Kankakee.

(C3143). The City

did not place

any restrictions on

the

Applicant

as to

who could

speak

the

February

19 City Council meeting.

(11/4

Tr. 184). During this

initial

meeting,

the City never

told

the

Applicant

not

to attempt to

present its case

to the City Council

outside

the hearing

process. (11/4

Tr. 277).

No one at the City

ever

told Town

and Country that

they could

not

present expert

opinion statements

at the February

19,

2002 meeting.

(11/6 Tr. 186).

Prior

February

19,

2002,

the City

was aware that

the County of

Kankakee was opposed

to any new

landfill

being

erected in the City of

Kankakee.

(11/6 Tr. 186). No

notices were sent

potential objectors,

nor

individuals

within 250 feet of

the

landfill,

about the

February

19, 2002

meeting as

required by Section

39.2. Though

Mr. Bohlen

would not admit

that

before

2/19/02

he was aware that

Town and

Country was going to

give a

presentation

to discuss

how the Section

39.2 criteria

were

met, he acknowledged

that “I

certainly heard

it during the

meeting.” (11/4 Tr.

273).

review

of the City Council

minutes

indicates

the Mayor

described what

he believed

was the

financial problems

the City

of Kankakee and

the

benefits

that he

believed

the

application

brought.

3143-3144).

Indeed, the

Mayor admitted that

on that

night

he made

public

statements

in favor of the

landfill. (11/6 Tr.

175). He

informed the City

Council

that

The Applicant

stipulated

that

39.2

notices were sent

with respect to the

February 19,

2002 City Council

meeting.

(11/6 Tr. 188, 190).

He also acknowledged

making other

biased

statements

the media (11/6 Tr.

175).

“we started this

process well over

two years ago”

(C 3143)

and that “I think

we’re on the right

track and

going

down the

right path.”

3144). He

then introduced Mr.

Volini of Town and

Country

“having a

presentation they want

to make, to talk about

theirs and where we

are from

where we

started to where we

are today and what

direction we’re going.”

(C 3144).

He then

invited that, at

the proper time,

the City Council

and the City staff could

ask

questions

of the

Applicant

3144).

Mr. Volini

then addressed

the City Council

and indicated that he

had

been

working for

the last 10

months with

City Attorney Chris Bohlen

negotiating

an agreement.

3145). Mr.

Volini also

indicated his partner

who

was the

operator of a landfill

in Morris that

some of the

members of the

City Council came

to see. Id. Mr.

Volini then

made

the earlier referenced

statement about the

“unfettered opportunity

to talk to you

without

the

filter of lawyers” and

also

stated,

“we

want to be

able to

speak

with

you

person

to person about

things that we believe

in,

concepts

that

we’ve proved and

environmental

protection that we’ve

achieved.”

3145).

Immediately

after stating

that he intended to

preserve the

Council from the

“rancor” and

“back and forth”

of lawyers,

Mr. Volini then

promptly introduced

his own

lawyer,

George

Mueller, to the

City Council

as “the dean of landfill

siting in Illinois.”

Id. He

also introduced

individuals

described

as “the best

experts we

can

find”, including,

Devin Moose,

P.E., Eric

Dippon, Mike

Donahue,

Mike Gingrich, Ph.D.,

Jaymie

Simmon

and JoAnne

Powers and these

people spoke

on (and

apparently

off)

the record

as to the

merits of the application

and in Ms.

Simmon’s case,

about the

untrustworthiness

of the Section

39.2 hearing. Id.

Mr. Volini

indicated “at

tonight’s

meeting

will have

opportunity

have our expert

witnesses meet

with you, to

talk to you about

their fields of

expertise briefly,

to talk to you about

the process

that’s

dictated

the statute that

George

Mueller

will describe, to

talk to you

about the

proof.

You are called upon to

judge

and jury.”

3146). Therefore, it

clear that the intention of

the

meeting was

present “expert witness” testimony to the City Council.

Mr.

Volini then indicated that “we want you to know the proofs you’re called

upon

make sure that we make. Or you’re to vote no. That’s what the statutes say

and

the cases say.

So,

if, if Envirogen can’t convince you and Devin Moose can’t convince you of the

quality of his

calculations,

the integrity of his design and the compliance of that design the with

Environmental

Protection Act, you

get to vote no”. Id. He then indicated “I have some packages

that will be

referred

in this presentation for each of you. . .“ Id. Volini also stated

“So, that’s the

introduction to a

process that is really ten months old. In a sense, Mayor and

members

of the

counsel, and you who must vote on this, it’s ten months and 23 or 25 years

old because of our

involvement

in it.

expect

your questions, we expect your scrutiny, we expect

to be held to

the highest

standard. We’re on trial. The trial started a long time ago.

We’re on trial with you.

You’re on trial.” Id.

Mr. Volini then indicated “after tonight, we can’t talk to you.”

Id.

Then he introduced his attorney, George

Mueller, who explained that in his opinion

“once an application for local siting approval is filed, and

that will be three weeks from

tomorrow, I believe,

there

is, in effect,

ban on decision makers communicating

on substantive

issues

within any of the parties in the proceeding.”

3148).

Mr. Devin Moose, the project

engineer

for the Applicant, then

addressed the City

Council.

3149-3152).

He described his

company and the pride that they took

in preparing

applications based

upon the facts and data and then he began to describe the

siting criteria.

3149).

Review of his testimony makes it clear that he

not only described the

criteria but also

how the Applicant believed it met that criteria. For

example,

Criterion 1, Mr. Moose

Surprisingly, at the IPCB hearings, the applicant and the City

objected to

the term “witness” being used to

describe the individuals that spoke on February 19, 2002.

explained the procedures

that

uses including doing

Freedom of Information

requests of

every

landfill

in Illinois and most

landfills

in Indiana, Michigan

and Wisconsin in order

“prove

you how much

garbage is

generated, to prove

to you how much is

recycled

and

how much, yet

needs to be

disposed of.”

3150).

then

moved

Criterion

2 and explained

that

engineer, it

his oath

“not

return a profit

to my client, not to return

a profit to

my business,

my professional

oath is to protect

the public health,

safety

and welfare.”

3150). He then

explained

his

procedures

for

determining

whether

the

protection of health,

safety

and

welfare

was met,

including doing drillings,

wells,

lab tests, in situ field

tests

and then

“marry

the design

into the hydro

geological setting”.

3150). He

explained that

it is his firm’s

policy to “respect

nature and use

nature for the

design of the facility.”

Id. He

then explained

that

his designs

include

a clay

liner

which the City Council

could “rely

that when you bury

clay below

grade, it’s

going to be

there.”

Id.

He explained that

his

systems

include

plastic

liners and leachate

collection systems.

Id. He then

explained

how

leachate

monitored in his designs

and how

the

containment

system is included to

hold leachate

into the

system.

3151). He

explained that

his

design involves

keeping

no more than one

foot

of leachate

in the bottom of the

landfill at

any

given time and that the

rest is pumped

out and

taken to a waste

water treatment

plant.

3151)

continued

explain

how they deal with

surface water,

storm

water

and air

pollution.

Id. He

explained

that there are 50 to

70 gas

withdrawal

points

within their

application

that he puts

under

negative

pressure and a

vacuum will

applied

to the

landfill.

Id. The gas

would then be

routed

for

positive

energy use. Id.

Mr. Devin

Moose

told

the City

Council

that “there are

group of people

this

country

that

go around

fighting

landfills and

put

stuff on

the internet

with

no basis in fact.

And those

people earn a living

by going

around fighting landfills”.

3152).

Even worse,

the

Applicant

introduced another

“expert

witness” by

the name of

Jaymie Simmon as

someone who

“will have

some

things to say tonight

about the

process

and

how

the

organized environmental

community

involves

itself in the process.”

3146). Mr.

Volini

said

that Town and Country

would have

“Jaymie

Simmon

tell you

some of the

things she’s learned

about the community

side and

the

organizing

environmental

community side of the

these

hearings.”

3153).

Ms.

Simmon then told the

City Council “we’ve

talked to some

people who

are experts

and who’ve

been

through

this process many

times. And based

on what they’re

telling

us, the

hearings

can

expected to be

crowded,

lively,

somewhat emotional.”

3153).

She

explained

that there

would be

people upset about

the issue “some

of them, many

them from

Otto

Township,

from the

vicinity near the landfill.”

Id.

She

also said that

and then

there will be

those from outside the

community,

who don’t live

here, that

Devin eluded

to, who are

simply landfill opponents.

That’s

their passion.

That’s

their

job,

is go around

and oppose

landfills

wherever they are

proposed.

And,

these

people

are likely to come in,

not as

fist waiving

fanatics,

but as people

who

are

very

calm, appear

to be

very

professional, and

appear to be very

educated

and

very well

informed

on the issues.

Ah, one of the

things we need

to watch out

for,

and I’ll be the third

tell you

tonight, to

remember

make

decisions

based

science. This

should not, and must

not, be

allowed

to become

an emotional issue.

But,

there are

those

who will want to

make it that.

And,

they

will

tell stories,

for

example,

they

will

quote

an EPA report

from 1988 that

says that

all

landfill

liners

eventually will

leak. What

they won’t tell you,

that that report

was

based

upon

research of landfills

that

were

built

before 1979.

And, as you

well know,

the

standards changed

very dramatically

from 1979 to

the present day,

and that report

goes

on to say

that

indeed, leachate

collection systems

and

plastic

liners

and

clay

liners and treatment

of leachate

are, indeed

the best way to

protect

the

environment. They

won’t

tell

you

that part. Urn,

partial quotes and

out of

context

quotes

are

a pretty potent

tool that we

can expect

to be used by

the

environmentalists.

All

of it geared

to get

all involved to doubt

what they

know.

Urn, It is a concerted

effort, really,

create controversy

and

cause

confusion.

3153).

Mr. Volini closed by

stating

“you’ll

hear this

without

so much

emotion

and with

bunch

of lawyers

fighting

with

each other

in about 120 days,

but we

wanted

you to

hear it from us

first.”

3156). The City Council

then

posed

substantive questions

to the Applicant’s

witnesses.

(C3

156-66).

Both the Mayor and

Mr.

Bohlen

testified

that during

the February 19, 2002

meeting, they

were

not concerned about

statements

made

applicant

and

at no time voiced

any

objection

any

of those

statements

nor

did they at

any time that evening

direct the City

Council to disregard

any statements

made by

the

applicant and its agents.

(11/4

Tr. 310;

11/6

Tr. 184).

The

City required

FOIA requests for

fundamental

information concerning

the

landfill siting hearings.

The

Kankakee City Clerk

required the County

Kankakee

and other objectors

to file

freedom of

information requests

to acquire basic

information concerning

the landfill

siting

hearings.

(11/6

Tr. 239).

For example, the

City Clerk refused to

inform the

County

the names of

the people who had

registered

participate absent

submission

of a Freedom

Information

Act

(FOIA)

request and

payment of certain

costs.

(C003

1). The

City Clerk also

refused to provide

the

identities of the witnesses

that

had been

disclosed

the

Applicant and other

parties, though

the

City

Clerk

was

in possession of such

information, unless

and

until

FOIA request was made.

Id.

Furthermore, the City

Clerk

refused to waive

costs as to

the request for the

names of

the

witnesses and

parties, even though

the request was from

another

public body, the County

Kankakee. Id.

The

result of the

refusal

provide the

information absent a

FOJA request

and payment

of costs

was

that counsel for the

County did

know

what witnesses

had been

disclosed

until the

very

day the

39.2 hearings

were scheduled

to commence.

Id.

Facts

concerning hearing

officer

bias.

On the first night

of the

hearing,

in response

Motion to

Disqualify

filed by Waste

Management, Mayor

Green recused himself

and at that

time recommended

that the

City

Council

appoint City

Attorney

Bohien,

as the Hearing

Officer.

(11/4

Tr. 308). The

Motion immediately

carried

and the

hearings commenced.

Id.

During

discovery

in this IPCB

case, it has

become obvious

that

Hearing

Officer Bohien

was also

biased

by not only

his direct superior

being the City Mayor,

but

also

because

he had

extensive

substantive

contacts with

the

Applicant

before

and during

the

RFP

process, the

annexation

process, drafting

the County’s

Solid Waste

Management Plan, drafting

the Rules

and

Ordinances for the

County, negotiating

the Host

Agreement, and

attending other

meetings with

the

Applicant. (11/4

Tr. 210,

212, 229, 255). The

depth of his

involvement with the

Applicant

and

its

attorneys

was

not

completely

discovered

until October 31,

2002, when the

March 12,

2002

correspondence

from George

Mueller

City

Attorney Bohlen

was found by

the

County.

(11/4

Tr. 242).

That

correspondence

makes it

clear that George

Mueller

was not only actively

communicating

with Attorney

Bohlen

but

actually

directing

the

course of the

Section

39.2

hearings

drafting the Rules

and Procedures

for those hearings

for Mr. Bohien

and

the City and

suggestions

that

discussions

could continue between

the

Applicant

and the City

after March

13,

2002. (11/4 Tr. 249).

10.

Facts

concerning post-filing

ex pane

communication.

The

March 12,

2002,

correspondence

from the

Applicant’s

attorney to

City Attorney

Bohlen

indicated

further

communications could

continue after the

filing of the

Application

March 13,

2002.

(Petitioner’s Ex.

Appendix

C).

The letter

also attached Mr.

Mueller’s draft

of the Proposed Rules

for the hearing.

Id. The

letter was received by

regular mail

after the date

of filing

the application

(though it had

been received by

fax the day

before filing).

The letter is

described in more detail

infra

and

is attached hereto as

Appendix

(11/4 Tr.

253).

Facts

Concerning

Criteria.

The facts

concerning

the failure to meet Criteria

viii, ii, and v

are contained

in the body

of the argument

infra.

II.

EVIDENTIARY RULINGS

WHICH SHOULD

RECONSIDERED

THE

ILLINOIS

POLLUTION CONTROL

BOARD

The Hearing

Officer’s Ruling

that Evidence of Pre-Filing

Contacts

was Inadmissible

was Erroneous

All of

the

evidence of prefihing

contacts should have

been

allowed

because the

applicant admitted

that the adjudication

of the

merits

commenced

with these

contacts.

On the first day of

the IPCB hearings

testimony was

offered concerning

numerous

contacts that City

officials had

with

the Applicant

before the

filing

of the

application

on March

13, 2002. The

County described

these prefihing

contacts in

detail in its

opening statement. (11/4

Tr.

11-19).

The Applicant in

its opening also

referenced numerous

prefiling contacts

including

discussions

concerning the

annexation of the

property,

discussions

with

Applicant

concerning

financial

benefits

to the City, and

discussions

concerning

the

adoption

of a

City

Solid Waste

Management Plan.

(11/4 Tr. 50).

The City of Kankakee

Corporate

Counsel,

Christopher

Bohlen,

(who was also the

Hearing officer

for the City Council

Hearing)

testified

as to

the

nature

and

content

of several pre-filing

communications

with the

applicant before

any objection was

raised by

Counsel.

(11/4

Tr. 209-219).

The

Applicant

eventually objected

one

of the

questions

concerning

pre-filing contacts on

the grounds of

relevancy which was

sustained.

(11/4

Tr. 213). (The city

did not object to

any such questions

until after

the Hearing

Officer sustained

the

specific

objection

raised

the Applicant).

The hearing

officer made

clear that the

Applicant’s

objection would not

ongoing.

(11/4 Tr. 240).

There were

numerous other questions

about

pre-filing

contacts

to which no

objections

were

raised.

to the

questions

that

were objected

to, the

objections

were

sustained

and

the

witness

was allowed

answer

offer

of proof.

None

of the objections

should

have

been

sustained

because

the Applicant

“opened

the

door” to the

evidence

of prefihing

contacts

referencing

them

in his opening.

(11/4

Tr. 49).

Furthermore,

the

questions

were relevant

because

the

manner

in which

the

hearing

is conducted,

the opportunity

to be

heard, the

existence

of ex parte

contacts,

prejudgment

adjudicative

facts

and

the

introduction

evidence,

are

important

elements

establishing

and

assessing

fundamental

fairness.

See Hediger

v. D&L

Landfill, Inc.

(December

20,

1990),

PCB

90-163.

Furthermore,

evidence

bias on

the part

of the decision-maker

or a landfill

siting

hearing

officer is

relevant.

See American

Bottom

Conservancy

(ABC) v.

Fairmont,

PCB 00-200

(October 19,

2000).

The

sustaining

of the

relevancy

objections

Hearing Officer

Halloran

was based

on an

interpretation

Residents

Against

a Polluted

Environment

the

Illinois

Pollution

Control

Board,

293

Ill.App.3d

219,

687

N.E.2d

552

(3d Dist.

1997),

proffered

the Applicant’s

attorney.

Residents,

the appellants

argued

that

the

applicant’s

involvement

in the County’s

amendment

of its solid

waste

management

plan constituted

impermissible

parte contact

that

resulted

in pre-adjudication.

The

Third

District held

that such

contact

was

not

impermissible,

and

Section

40.1 only

allowed review

the fairness

of the

“procedures

employed

the County

during

the

siting process”.

Id. Notwithstanding

the

foregoing,

the

Residents

case does

not contain

a “bright-line”

test

that any

contacts that

occur

before the

filing

of the

application

are allowable

and not

relevant.

In this case,

the Petitioner’s

assertion

the

“siting

process”

actually

began before

the Application

was

filed on

March

13,

2002.

This siting

process

culminated

in a

City Council

hearing

on 2/19/02

which the

City

Council

gave

the

applicant

unfettered

opportunity

present its

expert

witness

testimony

without any

notice to

landowners

objectors.

The Mayor

of the

City

Kankakee,

explicitly

informed

the

City

Council

that

the siting

“process”

had actually

begun

two years

before

2/19/02

meeting.

3144).

The Applicant

then

provided

substantive

expert

opinions

on the criteria

which

was heard

by the

City

Council

and

City Staff

who

then questioned

these

witnesses.

objector

was provided

chance

to cross-

examine

these witnesses

February

19, 2002.

The applicant

then

offered “expert

witness”

testimony

that the

section

39.2 hearing

that

would be

forthcoming

would be

a crowded,

confusing,

emotional

process

where people

who may

not

“appear”

to be fist waiving

fanatics

but would

offer

testimony

for environmental

groups

that

was

misleading

and untrue.

The relationship

that developed

between

the applicant

and

the City

Council

that

led up to the

City holding

the obvious

“pre-hearing”

of the application

not only

relevant

but

important

and

crucial

for the IPCB

to review

determine

whether

the

ultimate

proceeding

was tainted

by the pre-filing

biases,

contacts

and

pre-adjudication.

In effect

the Applicant

made

its first substantive

presentation

on the application

before

the

decision-makers

on February

19,

2002. The

Applicant

stated that

the

trial

had

actually

begun

when

the

Applicant

and

the City started

this cooperative

project.

3146).

Moreover,

the

Applicant

characterized

potential objectors

and

the Section

39.2 hearing

itself

in a most

inflammatory

and derogatory

manner,

thereby

conveying

the clear

and

unequivocal

message

that

the

Section

39.2 hearing

should

viewed

with

doubt,

skepticism,

and

suspicion,

and that the

decision-makers

should

rely on

what they

heard

from

the Applicant

on and

before

February

19,

2002.

Therefore,

not only

is it clear

that the siting

process

began before

filing,

but the

2/12/02

presentation

the Applicant

caused

a ripple

effect which

spread

through

the

legally

recognized hearing

June 17, 2002 and caused the decision-makers to

pre-judge the

Application

the statutory hearing.

This is not a situation, as was the case in Residents Against a Polluted

Environment, in

which the Applicant

was

merely a participant in the amendment of a solid waste

management

plan review process. Rather, in this case the Applicant made a substantive presentation on its

completed Application before the City Council in a “dry run.” Nor is this merely a situation

which Board members

held

formed

personal

opinions

prior to the Application date, see, e.g.,

Waste Management ofIllinois, Inc. v. Pollution Control Board, 175 Ill.App.3d 1023, 530 N.E.2d

682 (2d Dist. 1988), but a situation in which the application process

admission of the

Applicant and the City themselves itself actually began before February 19, 2002. Residents

Against a Polluted Environment does not stand for the proposition that evidence of such

prejudicial

contact

may not

be admitted,

and the

holding

in that case

should

limited to its

facts.

The most instructive precedent on this issue is Land and Lakes Co. v. Illinois

Pollution

Control Board, 319 Ill.App.3d 41, 743

N.E.2d 188

(3l

Dist. 2000), where the court clearly

allowed

evidence of and reviewed allegations of pre-judgment of

siting application, where it

came to the conclusion that the contacts were not fatal because the communications by the

applicant were not with the decision-makers. In that case, Will County staff

members reviewed

and commented upon the application prior to its filing. Following the grant of siting

authority,

challengers appealed the decision of the local board and the IPCB. The

Third District found the

proceedings

fair

because

the

special assistant state’s attorney, Mr. Charles

Helsten, established a

procedure

that

avoided any contact between the applicant and the

decision-makers, which was

the County

Board,

not

County

staff See Land and Lakes Co. at 47. The court

stated

as follows:

Generally the PCB must confine itself to the record developed by the local siting

authority.

However, in some cases, such as the one at bar, it is proper for the PCB

to hear new

evidence

relevant

to the fundamental fairness of the

proceedings

where such evidence necessarily lies outside the record.

Id.

at48.

Given the

foregoing, this Board should allow

and

closely examine the evidence relating

to the pre-filing contacts in this siting proceeding. For the foregoing reasons the

Petitioners,

County

of Kankakee and Edward D. Smith, State’s Attorney of Kankakee County, pray that this

Honorable Board allow and admit the evidence adduced by Petitioner relating to

prejudgment

the Application and the prefiling contents.

Any and all evidence concerning the February 19,

2002 meeting should have

been admitted because the meeting minutes were part of the underlying

record and evidence prejudgment of adjudicative

facts.

In addition to the reasons set forth in the preceding section

concerning the admissibility

of all the prefiling contacts offered in

this

case,

the

February 19, 2002 minutes and any questions

concerning that

specific meeting are obviously relevant because the minutes

are part of the local

siting record. The City of Kankakee admitted the City Council

minutes

from seven City Council

meetings that occurred

from October

15, 2002 through August 19, 2002, including

the February

19, 2002 minutes. (C

2949-3209). The City even supplemented the record during

the

IPCB

hearing with the minutes from June 3,

2002. (11/4 Tr. 281). Christopher Bohlen

explained that

the minutes of these

various

meetings were included in the section 39.2

record

the City

because

he understood that the inclusion of them was required as a

matter of law. (11/4 Tr. 281).

The minutes were also

included in the City record

an exhibit to the Motion of

Kankakee

County to Quash Proceeding

Because

of the Improper Meeting Between the City

Council and the

Applicant on February 19,

2002.

2104-2190). Therefore, the minutes to the meeting were

clearly made a part of the underlying record on two occasions.

Furthermore, the Applicant and

the City stipulated

that

the minutes were

part of the record. (11/6 Tr. 177). Since the

minutes

were

admitted into the

record

by the City itself the questions by the Petitioners

concerning the

communications which led up to and included the 2/19/02 meeting, should have been admitted.

Furthermore,

the only objection raised to the testimony concerning the meeting (or the other pre

filing contacts) which was

sustained

was

“relevancy”.

Clearly

pre-fihing contacts of the nature of the 2/19/02 meeting are

relevant

the

question of whether

there was a pre-adjudication, particularly when the applicant

spoke directly

the decision maker and told the decision-maker that the

purpose of the meeting was to have an

“unfettered opportunity” to “speak directly” with the

decision-makers

about

the “proofs” and the

“environmental compliance.., achieved” without the “filter of lawyers”. The

Applicant then

indeed called its

expert witness (Engineer Devin Moose) to present the Applicant’s

case

that each

of the Criteria were met and the City Council

and its staff then questioned the expert

witnesses

for the Applicant. Again, the Applicant even

explicitly acknowledged the same in

its conclusory

statement

to the City

Council as follows:

that “[y]ou’ll hear

this without

much emotion and with a bunch of

lawyers

fighting

in about 120 days, but we wanted you to

hear it from us first” (C3156)

(emphasis added).

Therefore,

it is difficult to conceive of a more

relevant piece of evidence

and thus the

Hearing Officer

ruling of the inadmissibility of the questions

concerning the

2/19/02 meeting

was in error.

The Hearing Officer’s ruling as to

the inadmissibility of the

March 12, 2002

letter from the Applicant’s counsel to the City

Attorney/Hearing Officer

Bohlen was

erroneous.

During

the Illinois Pollution Control Board Hearing, Mr. Christopher

Bohlen

was

shown

a copy of the aforementioned

correspondence

dated

March 12, 2002 which

was marked as

Petitioner’s Ex.

This correspondence contained explicit, irrefutable

evidence that the

Applicant and its attorney were intimately involved in establishing the Rules and Procedures for

the

City

Kankakee landfill siting hearing. The correspondence explicitly provides that

Attorney Mueller drafted the Rules

and

Procedures for the City of Kankakee for the

Applicant

(Mr. Tom Volini) and

that

his

Rules and Procedures

were adopted.

(See Petitioner’s Ex. 2,

attached hereto as Petitioner’s Appendix

C).

It is fundamentally unfair to objectors for the Applicant to be involved in the review and

drafting of landfill siting procedures on behalf of the siting authority. Concerned

Citizens

for a

Better Environment vs. City ofHavana, page 10 (May 19, 1994). (The conduct

of the Applicant

and its counsel, George Mueller, is particularly troubling since Mr. Mueller was the objectors’

counsel in the City ofHavana case). Nonetheless, it is apparent that Mr. Mueller drafted the City

Kankakee’s Rules and Procedures. Furthermore, Hearing Officer Bohlen admitted that the

correspondence dated March 12, 2002 was received by regular mail on or after

the application

was

file March 13, 2002. Therefore, even if an erroneous “bright-line”

rule is applied, the letter

should have been admitted as evidence of an

improper post-filing ex parte communication.

The Applicant’s Attempt to Supplement

the

Record

with Testimony Concerning

Jurisdiction at the Illinois Pollution Control Board Hearing Should not have been

Allowed.

The Kankakee City

Council lacked jurisdiction over the Application filed in

this matter

because

Town

and Country Utilities, Inc. and Kankakee Regional Landfill,

L.L.C. (collectively

the “Applicant”) failed to affirmatively demonstrate and prove that

it had satisfied the

jurisdictional requirement that proper notice was given to all

landowners located within a

statutorily prescribed

distance

the proposed pollution control facility pursuant to

415 ILCS

5/39.2. In

an eleventh hour, last ditch, attempt to cure that crucial failing, the

Applicant sought

introduce new evidence at the IPCB review proceedings in an attempt to

retroactively

perfect

its failed efforts

regarding

notice

calling

the Applicant’s attorney’s

secretary

and process

server, Ms.

Patricia VonPerbandt.7

Pursuant

to 415 ILCS 5/40.1(b),

the

hearing

on a petition for

review

appealing

the grant

of siting

approval

is to be based “exclusively

on the

record before the

county

board.

. .“ and no

new evidence

may

admitted except as

it relates to

issues

of fundamental

fairness.

See

Land

and

Lakes

Co.

v. Illinois Pollution

Control

Board,

252 Ill.Dec.

614, 319

Ill.App.3d

41, 743

N.E.2d

188 (3 Dist.

2000). Establishing

jurisdiction was the

burden of the

applicant

and its

failure to

do so at the

39.2 hearing may not

be cured

in a subsequent appeal.

The

Applicant’s

attempt to bootstrap

evidence

clearly

relating to

jurisdiction into

this

proceeding

impermissibly

extends ad

infinitum a process

which

is intended by

Illinois

law to begin

and

end

at the local

board siting

hearing.

The

Applicant has a duty

present

before the

local board a

complete

application,

either by the

application itself or

conjunction

with

evidence

adduced at

the local

hearing, and

to comply

with

the notice requirements

of the

statute. See

Spill v. City of

Madison

(March 21, 1996)

PCB 96-91. An

application

that

does not

adequately present

compliance with

all jurisdictional

pre-requisites,

is obviously

incomplete.

Since the

evidence of

notice was not

complete

at the time of the

hearing,

the decision

of the

City counsel

should

be vacated.

In Ogle

County

Board on behalf of

the County

of Ogle

v. Pollution

Control

Board,

272

Ill.App.3d

184,

649

N.E.2d 545, 208

Ill.Dec. 489

(

Dist. 1995),

the court

held

that

the failure

the applicant

comply with

notice

requirements

could

be raised at the

IPCB

hearing.

Id. at

187-188.

However,

an applicant has

never been allowed

prove-up

jurisdiction

at the

IPCB

such

would only

provide the incentive

withhold

any

such information

the

39.2 hearing

avoid

the

scrutiny

of objectors.

Even

though

the testimony was

erroneously

allowed Ms.

VonPerbandt

actually

confirmed

that several

landowners

were

never

served. (11/6 Tr. 289,

298).

this case,

the

Applicant had

ample

opportunity

introduce

evidence regarding

its

alleged

compliance

with the notice

requirements

Section 39.2. The Applicant

failed to

present

this evidence.

Attempts to cure

at the appellate

are in

contravention

of the statutory

scope of

review

set forth

in section 40.1 This

Board should

not

allow such lackadaisical

disregard

for a

jurisdictional

pre-requisite

to a Section 39.2 siting

hearing,

because then obviously

it would no

longer be a

“pre-requisite” as intended

by the legislature.

Therefore,

the

plain

language of

Section 40.1 should

be followed and

the applicant barred

from admitting

evidence of

compliance

with the

jurisdictional

pre-requisite

of notice for the first

time

on appeal.

III. THE

DECISION

OF THE CITY COUNCIL

MUST

OVERTURNED

BECAUSE

THE APPLICANT

FAILED TO

ESTABLISH

JURISDICTION

Section

39.2(b)

makes

it absolutely clear that

service must

be obtained

“on the owners of

all property”, (which

appear

from the authentic tax

records of the

County in

which the facility is

to be located”)

“either in person

or by

registered

mail”. 415 ILCS

5/39.2(b).

Illinois case law

clearly

establishes

that

if an

owner is listed on the

authentic

tax records that

owner must be

provided with

the

applicable

notice.

Wabash

and Lawrence

County

Taxpayers

and Water

Drinkers

Association

v. Pollution

Control

Board,

198 Ill.App.3d 388,

555

N.E.2d

1081 (5thDist.

1990).

Furthermore,

“the civil

‘return

receipt’

provision of Section

39.2(b)

of the

Illinois

Environmental

Protection Act (“the

Act”)

reflects

the intent of the

legislature to

require actual

receipt

the notice,

evidenced

the signing of the

return

receipt.”

Ogle

County

Board v.

Pollution

Control

Board,

272 Ill.App.3d

184, 649

N.E.2d

545 (Ill.App.2d Dist.

1995).

Finally,

the

return

receipt

must be

signed

the

actual owner,

it should be

evidenced that

the

individual

signing

was

the

authorized

agent

of the

owner

for

service process.

Illinois

Environmental

Protection Agency

v. RCS, Inc. and

Michael Duvall,

AC 96-12

(Dec. 7,

1995).

But

see Sam Dimaggio

Solid Waste

Agency

Northern

Cook County, PCB 89-138

(June

11,

1990

held that merely

sending notice was

sufficient).

The failure to acquire

service results

in the

local

siting authority

failing to

have

jurisdiction.

Ogle County Board,

272 Il1.App.3d at 193;

ESG Watts

v. Sangamon County

Board,

PCB

98-2, 1999 WL

43620

(June 17,

1999)(”Notice Requirements

contained

Section

39.2(b)

are

jurisdictional prerequisites

which must

followed

in order to vest the

siting

authority

with

the

power to hear a landfill

proposal.”).

this case, jurisdiction

was not acquired

because

notice

was

not

sent before the

February 19, 2002

hearing, five of the

owners of a parcel

were

never

sent

notice, and the return

receipts

of numerous parcels

were

signed

non-owners.

The

City

Council does not have

Jurisdiction

Because the

Applicant First made

its

Request

for

Site Location

Approval

the City

Council on

February 19, 2002

Without any

Notice

Required

by Section

39.2.

Review of the

February 19,

2002 City Council

minutes reflect

that an unabashed,

unequivocal

intent

of the Applicant

was to

having a hearing in

front

of the

decision

makers

(the

City

Council) in this

matter on the

merits of the

application. It is

impossible to

review

his

testimony

without coming

the conclusion

that the

Applicant was putting

its case

before any

notice

was provided to

the public or the

landowners

in the vicinity of the

landfill.

Section

39.2

provides

that notice

must

be given prior

to a request

for location

approval

an applicant.

The

Mayor acknowledged

the February 19,

2002 meeting that

at a

normal

City Council

meeting

the public is not

allowed to speak.

Nonetheless,

the applicant was

allowed to

speak and present

evidence to the City

Council on the

Section

39.2

Criterion. (Just like

Section 39.2

hearing).

is,

therefore,

obvious that the February

19, 2002

meeting was not a

normal City Council

hearing,

but

rather it

was a

hearing

on whether the Section

39.2 criteria

were met. This

was not a

meeting

to discuss

the

general logistics and

procedures that

would follow. To

the contrary,

the

Applicant

presented its expert

witnesses,

presented

its evidence

on the

specific

criteria,

argued that

objectors

should

ignored, and argued that

it had proved

compliance with the criteria. At the

conclusion of the formal presentation, and before receiving and responding to the City Council’s

questions, the Applicant explicitly

admitted

that

its purpose

was

to present

its

case to

the

City

Council without the

involvement

the emotional

public or the

argument

lawyers.

Section 39.2(b)

requires 14

days notice to all landowners prior to a request

for location

approval. The

evidence

clear,

and stipulated

to by the Applicant, that no section

39.2 notices

to the landowners were issued before the February 19, 2002 hearing. Furthermore, 3

9.2(d)

requires notice in a newspaper published to the public and notice

certified mail to all members

of the general assembly before the hearing on the Section 39.2 criteria commences. 415 ILCS

5/39/2(b).

notices were issued before the siting hearing commenced on 2/19/02.

Furthermore, the objectors were not given a chance to cross-examine the witnesses who spoke on

2/19/02 as required under Illinois law. Because notice was not adequately provided, the City

Council lacked jurisdiction to consider this matter and the decision of the City Council should be

vacated.

The Applicant Failed to Establish Jurisdiction Because it Presented No

Evidence

that it Served each of the Owners of Parcel 13-16-23-400-001.

It is also undeniable that jurisdiction was not established in this case because the

Applicant failed to provide evidence that each of the owners of Parcel

13-16-23-400-001 were

ever sent the

39.2(b) notice. Every owner listed in the authentic tax records must be served to

establish

jurisdiction.

Wabash and Lawrence Counties

Taxpayers and Water Drinkers

Association v. Pollution Control Board, 198 Ill.App.3d 388, 555. N.E.2d 1081 (5th Dist. 1990).

Five of the owners as identified

the

tax records were never sent notice as there is no return

receipt

for

the Prophet Road

property

contained

in the Applicants’

Ex.

No. 7.

This fact was even

confirmed

by a

witness called

the

Applicant, Patricia VonPerbandt who testified that the

receipts indicated

whom

notices were sent and

that she was unsuccessful

personally

serving

any

owner of

this

property.

(11/6

Tr. 297-298).

Therefore, it

is absolutely

clear from the record

that there was no service

upon

five

of the

identified

owners of Parcel 13-16-23-400-001.

Furthermore, it

is clear that the

Applicant’s agent

had no reason to

believe that

Mr. Richard Skates (who

signed the

receipt for Judith Skates

at the

Onarga

address) was the legally

authorized agent

for the

purpose

of serving Ms. Skates.

Since

there is no

evidence that each

of the owners of the

property were

sent a notice at the

address of

the

authentic tax records

the County

and the evidence

is clear

that personal

service was

not

obtained,

the

City Council

did not have

jurisdiction

hear the request for

siting approval.

Therefore,

the decision of

the City

should

reversed and the

application

denied.

There is No

Jurisdiction

Because Service Upon

the

Illinois

Central

Railroad

Company

was not Effectuated

least

14 days Before

the

Application

was

Filed.

The

Kankakee

City Council

lacks jurisdiction as

a matter of

law because

service was not

effectuated at

least 14 days before

the filing

of the application.

The

affidavit

of Mr.

Volini

itself

confirms there is

jurisdiction,

as he determined

that

the Illinois

Central

Railroad

Co, c/o CTS

Corp., 208

LaSalle, Chicago,

IL, was an

owner

of property entitled

notice

as evidenced by

the

return receipt

which is attached

to the

affidavit.

The return receipt

is dated

“3/6/02”,

therefore

service

was not effectuated

on this owner

at least 14

days before the

application was

filed on

March 13,

2002. (The return

receipt

also

fails to indicate it

was

accepted

by an

agent

for service

of process).

(See App. Ex.

2, Ex. B).

Once

again,

obtaining timely

service

of the

39.2

notices is a

jurisdictional

requirement.

Ogle

County

Board

v. Pollution Control

Board, 272

Ill.App.3d 184,

649 N.E.2d 545

(Ill.App.2d

Dist. 1995).

Because service

was not

obtained 14 days

before

the

filing

of the

Notice

of Intent to

Request Site Location Approval, the City Council had no jurisdiction and therefore its decision

should be

vacated.

The

Return Receipts of Numerous Parcels were Signed

Individuals other than

the

Owner of the Property and the Authority

Accept Service of Process on Behalf

of the Owner(s) was not

Established

by the Applicant.

In the

present case, the Kankakee City Council lacks jurisdiction in this matter because

the

Applicant has failed to provide sufficient evidence that those

owners of record, as evidenced

by the

authentic tax records of the County, actually received the

notice required by Section

39.2(b).

Specifically, notice was improper as to the parcels identified in the Statement

of Facts

because

on each of these parcels the box on the return

receipt which indicates that the signer was

the agent

of the addressee was not marked. Therefore, each

such

receipt, on its face, indicates

the signer was

not the agent of the addressee. No further

documentation was submitted by

Applicant to confirm either: 1) that the

individuals who did accept service

were the authorized

agents of the owners in question; or

that the owners that appear in the

authentic tax records of

the County

actually received the pre-filing notice

in timely fashion.

Merely signing

the return receipt card is insufficient to

establish agency. IEPA v. RCS,

Inc. and

Michael Duvall, AC

96-12,

1995

WL 747694 (Dec. 7, 1995); but

see Sam Dimaggio v.

Solid Waste Agency of

Northern Cook County, PCB

89-138, (Jan. 11, 1990). In

the RCS, Inc. the

Pollution

Control Board agreed that even if a

signer marked “agent” on the

return receipt card,

this is

insufficient to establish agency. Rather, there must be

definitive evidence

when

the signer

is not the

addressee that the signer is the agent

for service of process. (To the

extent that the Sam

DiMaggio

case provides that merely

placing

the envelope in the

mail is sufficient, it

the

Petitioners’ position that case was wrongly decided).

In this case, the agency box was not

checked

and, therefore,

it is absolutely clear

that

there

is insufficient evidence of agency.

Pursuant to Section

39.2(b)

the owner must receive

notice and the actual owner identified

on the tax

record must be served either in person or

registered mail in order to

establish

jurisdiction.

It is the burden of the Applicant to establish this jurisdiction by proper

evidence. In

this case, the evidence on its

face indicates

that

each

of the above-named owners did not receive

notice

that a request

for a landfill location approval was going to be made by the

Applicant

because the

signers refused to mark agent on the receipt. Therefore, the City

Council

Kankakee did

not have jurisdiction to hear this matter and its decision should be vacated.

IV. THE CITY COUNCIL PROCEEDINGS

WERE

NOT

FUNDAMENTALLY FAIR

The Public was Denied the Opportunity to

Participate in the City hearing.

The City of Kankakee instituted a

procedure, either

negligence or malfeasance,

which

virtually assured that

certain members

of the

public would not be able to participate in the

hearing.

Section 39.2(d) of the Act explicitly requires that “at

least one public hearing is to be

held

the County Board or governing body of the

municipality . . .“ 415 ILCS 5/39.2(d)

(2001). A non-applicant

who

participates

local pollution control facility siting

hearing has a

statutory

right

“fundamental fairness” in the proceedings before the

local

siting authority.

Land and Lakes Company v. Illinois Pollution Control

Board,

319 Ill.App.3d 41, 47, 743

N.E.2d

188, 193 (3d

Dist., 2000).

The local siting authority’s role is quasi-adjudicative and thus at a

minimum the

procedural due process

for Section 39.2 hearing requires that there be an

opportunity to be heard,

Pursuant to the RCS, Inc. case there is also insufficient evidence of service even if the

signer indicated he or she

was

the agent. Therefore, service is also insufficient as to owners Lawrence C.

Horrell, Yolanda M.

Belluso, Kevin Hansen, Vincent Hansen, ICC Railroad, Jill Hansen, Katie Cooper, Donald

Binoit, Barbara

Benoit, Randy Tobenski, Willi Walker, Bret Perreault, and Donald

Harenberg.

cross-examine

adverse

witnesses,

and receive

impartial rulings

on evidence.

Id. at 48 (citing

Daly v. Pollution

Control

Board,

264 Ill.App.3d 968,

637

N.E.2d

1153 (1994)); Abrahamson

Illinois Department

Professional

Regulation, 153

Ill. 2d 76

(1992)). The American

Bottom

Conservancy (ABC)

vs.

Village

Fairmont City,

PCB 00-200

(October 19,

2000); case

acknowledged that

the

“public

hearing before

the

local

governing body

the most critical

stage

the

site

approval

process.” ABC

at page 5 (citing Land

Lakes

Company vs.

Pollution

Control

Board,

245 Ill.App.3d

631, 616

N.E.2d 349,

356

(3rd Dist. 1993)).

The

manner

which the

hearing

is conducted,

the

opportunity

to be

heard,

existence

of ex

parte contacts,

prejudgment

of adjudicative facts,

and

the introduction

of evidence

are important,

but not rigid,

elements in assessing

fundamental

fairness. Id.

The

City of

Kankakee

failed to

allow certain

members

of the public to enter

their appearances

as parties and

failed

allow

certain

members

of the public the

opportunity

participate in the

hearing

conduct

cross-examination,

and

failed

provide

a fair

ruling

on the motions to continue

the

hearing.

The

conflicting

notices on registration

and

the City Police

barring people

from entering the

chamber

resulted in the public

not

being

allowed to

participate.

Mr.

Bruck,

and

any other member

of the

public

that attempted to

week

of June

12th

June 17th, was

turned

away

the City Clerk’s

office

which

was

operating

under

the understanding

that all participants

had to register

least

five (5) days

before the

hearing

(despite

the fact

that the Clerk

knew

the

legal

notice said registration

could

occur until

the

time

of the

hearing).

When the Hearing

Officer announced

June

17, 2002 that

they should be

allowed to

time on

June

17, 2002, due to the

confusion created

the

conflicting

notices,

the

to 100

people

standing

in the hallway

could

not

hear

such announcement.

Furthermore,

these

people were barred

from

entering

the

hearing

room anyway

armed

policemen. No

member of the public

testified

that he

heard anyone make

announcement

the

hallway that people

could come in and

participants.

The City

Council

was even made

aware of this inequity

before

it rendered

its decision

because

Mr. Bruck

made a public comment

wherein he

informed the City

Council that he

“wished

to be an

objector

but

was

not allowed

to,

because of misinformation

the City Clerk’s

office.”

1549-1550).

He was told

by the City

Clerk that “it was too

late” for

him

to sign up

Id. When he

arrived at the

first night of the

meeting, he was

not allowed

into

the

hearing room

and was

never informed

that he could

have

signed up assuming,

could even get into

the

hearing

room to do so. (C

1549-15

50).

It is

fortunate that

Mr. Bruck took the

initiative

inform the City

of Kankakee and

the

Illinois

Pollution Control

Board

of the inequities of

this situation

because

it can now be

corrected.

is unclear

how many

people found themselves

in the

same situation as

Mr. Bruck,

but it is

clear that the

conflicting

notices, the misinformation

the

City Clerk,

in conjunction

with the

armed

guards

at the City Council

doors, resulted

members

of the

public

not being

able to participate.

Therefore,

the

proceedings

were

fundamentally unfair

because

the

City

Kankakee

failed to

provide

public

hearing, failed to

allow people

wanting to participate

the

opportunity

to cross examine

witnesses,

and conducted

exparte communications

(since

members

the

public who

wanted should have

been

recognized

parties were not

allowed to be

present

June

17,

2002).

only Mr.

Power testified he

personally that he spoke

people in the

hail about this but

he could not identify

any

individual

that

spoke to

and

he was vague in his description

his alleged

conversations.

(11/6 Tr. 388-

390).

Members of the public that registered to participate were not

allowed

to do

so by

the City of Kankakee.

If Mr. Bruck’s testimony alone was not enough. Ms. O’Dell testified

that she followed

the newspaper notice and went to the City

Clerk

to sign-up to

participate. She was told she had

so in writing by indicating she

wanted

to “speak”.

She drafted the memorandum requested

and gave it to the Clerk before

the end of the day June 12, 2002.

Despite Ms.

O’Dell’s efforts she was not recognized as an objector until the

third or

fourth night of the

hearing, because

she could not get into the hearing room the

first night and

could not

hear any of the announcements made by the hearing officer.

Furthermore, Assistant

City Attorney, Mr. Power ignored her request to ask questions the

first night.

A public

hearing before

the local unit of government charged

with decision-making

responsibilities

critical component in the siting process. Kane County

Defenders v. Illinois

Pollution Control

Board, 487 N.E.2d 743 (2d Dist. 1985). Obviously, no

public hearing

occurred

here

and the City Council decision should be vacated.

The Public was

also

Denied the Opportunity to Attend the

First Night of the

Hearing.

The

IPCB has previously has ruled that a lack of adequate

seating

can lead to a

finding

fundamental unfairness in a public hearing. Daly v. Village of

Robbins, PCB 93-52,

PCB 93-54

(July 1, 1993). In Daly, the

Board held that taking public comment in a

second room, separated

from the

main hearing room, would render a hearing

fundamentally unfair if the

public was

compelled or coerced

into public comment room (thereby

requiring people to be outside of the

hearing room while the hearing was

going forward).

Id.

In City of Columbia v. County of St.

Clair, PCB 85-177 (April 3,

1986) the IPCB

considered the lack of seating a “dampening

prejudicial effect on the hearing

attendees.” Id.

Also, the IPCB looked to the

cumulative effect of the unfair procedures that

occurred, including

improper

notice

and

continuing the hearing

until the early

hours of the

morning to find a

fundamentally unfair

proceeding. Coincidentally,

those exact

same

unfair

procedures

occurred

in this case. The facts

in this case

are absolutely clear

that

to over 100 members

the

public

were

denied access to

the “public”

hearing

on the first

night.

This case

is even

worse

that City

Columbia,

because the Kankakee

City officials

were

aware

before June 17,

2002 that the crowds

would be substantial

but

still

failed to schedule

the

hearing at

an appropriate

venue.

Furthermore,

the

armed officials

of the

siting authority barred

people

from entering the

room or

expelled

people that were

able to find seats.

Ms. Barbara

Miller

indicated in her direct

testimony,

this

not what

one would expect

society which

cherishes its

freedoms and the ability

of the

public

participate in government.

Obviously, the

constellation

of facts at issue in

this case far exceeds

those referenced

the City

Columbia,

which the

IPCB found a lack of

fundamental

fairness. Unfortunately

the

very conduct that

Daly warned would

fundamentally

unfair occurred

here

when the public

was compelled

and

coerced

out of the hearing

room

and

into the crowded

hallway and stairwell

where

they

could

not hear nor see the

proceedings.

This

coercion

and

compulsion

cannot be

obvious than

the posting of armed

City

police at

the bottom of the

stairwell as

one entered

the

building

informing

people that they

could not

enter

and posting a second

police officer

at the

door

of the

chamber

room

inform people

that they

could not enter that

room. Therefore,

it is

obvious

that

the public was

indeed

compelled

to exit the

hearing room, which

pursuant

to Daly is

violation of

fundamental

fairness.

It is

particularly

egregious in this case

because the

people that

were banished to

the

hallway

appeared

to be almost entirely

composed

of people that would

neighbors

to the

proposed

facility. It just

happens that these

people

are County

residents

rather than City

residents

the

City

of Kankakee

annexed

the

proposed

real

estate

into

the

City

following

narrow

tentacle

annexed

property

out into

the County

land

and

at the

end

that tentacle

annexing

this property

to be surrounded

County

residents

rather

than the

City

of Kankakee

residents.

Accordingly,

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.

This injury

was

compounded

the

fact

that

the witness

who

testified

June 17,

2002

was

the

Applicant’s

only

witness

consistency

with the

County’s

Solid

Waste

Management

Plan

(which

called

for only

one

existing

landfill

be operated

within

the

County).

Furthermore,

this

one

witness

was

the

only

witness

that

was

allowed

to be

cross-examined

immediately

after

providing

direct

testimony

and

was

not required

to be

recalled

at the

time

that

the “round-table”

cross-examination

would

occur

by the

objectors.

Therefore, the

people

that were

not

allowed

into

the

hearing

room

on the

first

night

did

not

hear any

testimony

from

the

Applicant’s

witnesses

how

the

proposed

landfill

could

consistent

with

the

Waste

Management

Plan

of the

people

of Kankakee

County.

Furthermore,

if those

individuals

had

been

allowed

attend

the

public

hearing

the

first night,

they

could

have then

heard

the

hearing

officer’s

announcement

that

they

were

eligible

to participate

by signing

any

time

that

first

night.

Indeed,

many

these

individuals

might

have

signed

up to

participate

order

to pose

questions

the

sole

witness

who would

testify

that

somehow

was

appropriate

to site

a second

landfill

the County

despite

the

plain

language

the

County

plan

the contrary.

Whether

design

or mistake,

it is

obvious

that

the

result was

the

residents

Otto

Township

in Kankakee

County,

who

are

most

directly

impacted

the

landfill,

were

denied

the

chance

hear or

question

the

one witness

offered

the

applicant

to explain

why

the

plain

language

the people

Kankakee

County’s

Solid

Waste

Management

Plan

did

not

need

to be

followed

the

opinion of the

Applicant.

other words,

the most

crucial

witness of the entire

proceeding,

far

as the people of the

County

Kankakee

were concerned,

was

allowed to

testify on the

very night

that the Kankakee

County

public

was

barred from attending

and

participating

in the proceeding.

Therefore, the

proceedings

were fundamentally

unfair.

The Public was Denied

Access to the

Hearing Because the

Hearing Officer

did

not

Follow the Notice that

Indicated the Hearing

Would Cease at

10:00

p.m.

The Applicant

and the City

published notice that

the hearing on June

17, 2002 would

conclude

at 10:00 p.m. Once

the Applicant and

the

City

voluntarily

undertook

publish the

time that the hearing

would

conclude,

the members

of the public had the

right to rely upon

that

information. We

are aware that at least

two members

of the public left the

building because

they

had not gotten into

the

chamber

room and believed

the hearing would conclude

at 10:00

p.m. It

is likely,

that other

members of the public

who could have

attended after 10:00

p.m. also did

not

because of

the published

notice. (For example,

many people have

second

third shift work

schedules

might

have attended this

public

hearing

that continued into

the early

morning

hours of

June 18,

2002). However,

they were denied an

opportunity to do so

because a

notice had been

issued

indicating

that the hearing

would

conclude at

10:00 p.m.

The

County

acknowledges

that there

is no duty to

publish the ending

time

public

hearing, however,

once

it has

been published, it is

important

that

such

ending time be

honored

avoid the very

situation that

occurred

here. A failure

to honor that

ending time

results in a

fundamentally

unfair proceeding

because the public

was informed

that the proceeding

would not

taking

place

after 10:00

p.m.

when in reality it

was

occurring.

The public

should not have

been

left in the position

of having to

guess whether

a legal notice

actually means what

it says. In

this

case, the legal

notice was erroneous

in not only

the ending time

the first night,

but

also

the

procedures to be followed

for registering as

participant.

Therefore, the approval

by the City

of Kankakee

should

be vacated.

The City Failed

to Follow its

own Siting Ordinance

Failing to Provide

Copies

the Application to

the

County

of Kankakee.

The

City of Kankakee

has admitted

that it failed to

follow the siting

ordinance requiring

the City

Kankakee

to immediately provide

copies of

the application

to the County

Kankakee

Solid Waste Director

and the chairman of

the

Kankakee

County Board. (11/4

Tr. 305;

11/6

Tr.

188, 237).

A motion was filed

by the County to

quash the siting

hearing for

failing

provide

the application

which

was denied

by City

Attorney/Hearing Officer

Bohien.

His only

explanation for that

denial was

his belief that it was

“harmless error”. (11/4

Tr.

305).

However,

acknowledged that

the ordinance

required

that the copies

of the application

turned over

immediately

and acknowledged

that

the

purpose

was

provide

the County

with

every

opportunity to review,

analyze, test and

challenge the

application before the

39.2

hearing.

Id.

Therefore, obviously

the error was not harmless

the

County had half as

much time to

review,

analyze

and test the application

as it should

have.

Waste

Management

Illinois v.

Pollution Control

Board, 175 I11.App.3d

1023,

1036,

530

N.E.2d 682,

692-693 (2d

Dist.

1988) established,

Section 40.1 of

the Illinois

Environmental

Protection Act “recognizes

that the

specific procedures

as to the conduct

of local hearings

may

established

local

siting authority] and

also requires

that those

procedures

fundamentally

fair.” Id. Therefore,

“the Act does

not

prohibit

[a local

siting

authority] from

establishing

its

own rules and procedures

governing

conduct

of a local

siting hearing.”

Id.

Obviously,

such ordinance

is enforceable

not only against

the

public,

but especially the

City.

Unlike

the City of

Kankakee Rules and

Procedures Ordinance

02-24, the

Siting Ordinance

01-65

has

provision

that any of its requirements

may

be waived.

Therefore,

the

hearing

officer had

no authority

waive

the

requirement

that

the City

Clerk immediately

provide

a copy

any

application

the County

Board Chairman

and

another

copy to the

Kankakee

Solid County

Waste

Director.

Waste Management,

the

IPCB

found

that

failure

to provide

access to

the application

was

a fatal

flaw from

statutory

perspective

and

constituted

fundamental

unfairness.

Waste

Management,

530

N.E.2d

at 693.

Likewise,

Attorney

Mueller

successfully

argued

in Residents

Against

a Polluted

Environment

County of

Lasalle, PCB

96-243,

that the

failure to allow

the

public

see

even an

irrelevant

portion of

the Application

was

a violation

fundamental

fairness.

Id.

at 7. Obviously,

the

County

Kankakee

represents

the

people

of Kankakee

County

who were

not

provided

the application

from

the city

as required.

this case,

undoubtedly

the City

and

Applicant

will

argue

that

the County

was

not

prejudiced

because more

than six

weeks after

the application

was

filed the

County’s

expert was

finally

able

acquire

copy

the application

filing

an FOIA

request and

paying

a fee to the

City,

though

he had

a limited amount

of time

to review

it before

the

siting

hearing.

Such

argument

is disingenuous

as the entire

purpose

of the City

Ordinance

was

give the

County a

copy

of the

application

immediately

without

cost

the County.

seems

apparent

that when

became

obvious

to the

City that the

County

wanted to

limit the

impacts

from landfilling

within

its

jurisdictions

only

the existing

Kankakee

County landfill,

the

City was

longer

concerned

about

sending

a copy of

the application

to the

County;

which

is why

Anjanita

Dumas

was never

directed

to do so by

the Mayor

or the City

Attorney

and

never took

the initiate

do so herself.

American

Bottom Conservancy

(ABC) v.

Fairinont,

PCB

00-200 (October

19,

2000)

establishes

that

even a

delay

providing

the

application

is fundamentally

unfair.

ABC,

objector

attempted

acquire

an application

from

the City

Clerk but

was

told that the

cost

would

be between

$600

and

$670,

she then asked to simply view the application but it was not available

the date she requested it. The applicant itself made the application

available

the objector

two

weeks before the hearing commenced and even allowed the objector to use its office and

copy

machine, apparently at no cost. Id at page 6. The objector argued that only having two

weeks to review the application was insufficient and indeed the board found that

even though the

applicant allowed the objector to view the application in its own facility

and use its copy

machine two

weeks before the hearing this “did prejudice petitioner as they were less able to

prepare for the siting hearing” and rendered the proceedings fundamentally unfair. Id.

Obviously, the City’s failure to ever provide the required copies of

the application is

much more egregious than the ABC case.

Furthermore,

the fact

that the County’s expert finally

acquired a copy six to eight weeks after he was supposed to

is prejudicial as a matter of law

under ABC

because the County had substantially less time to prepare

than

it was entitled.

Therefore, the proceedings were fundamentally unfair.

The City

Council had Improper Communications with the

Applicant Including the

Pre-Judgment of the Merits of the Application.

Pre-fihing contacts and evidence of bias.

If a

local siting authority is biased against, or for, an

application, such can impact

fundamental fairness. E

E Hauling v. Pollution

Control Board, 115 Ill.App.3d 899,

451

N.E.2d 555, 565

(2nd Dist. 1983);

aff’d.

on other grounds, 107 Ill.2d 33, 481

N.E.2d 664 (1985).

E &

E Hauling established that the standard that would

apply in landfill siting hearings would be

whether a

“disinterested observer might conclude that he, or it, had

in some measure adjudged

the facts as well as the law

of the case in advance of hearing it.” Id. (See

also Concerned

Citizens

for a Better Environment v. City ofHavanna, PCB

94-44,

page 8

(May 19, 1994).

In this case, there

is ample evidence of

bias

on behalf

of the City of Kanicakee

favor

the application.

As more

fully explained in the

Statement of Facts,

both

the Mayor

and Hearing

Officer

Bohlen had

substantial prefiling

contacts with the Applicant.

The Mayor

even advocated

for

the project. The City

Council

participated in a bus

trip sponsored and

hosted

the

Applicant, participated

in the

annexation process,

and was informed

of the Host

Agreement

negotiations.

The Applicant

assisted

the City in drafting

Siting Ordinance

and

the Rules

and

Procedures for the hearing.

Finally,

the extensive contacts

culminated with

the

City Council

inviting and allowing

the Applicant to

presents its evidence

without notice to

any interested

party

February 19, 2002.

This case

is unlike Fairview

Area Citizens

Task Force v.

Pollution Control

Board,

198

Ill.App.3d

541, 555

N.E.2d 1178 (3rd

Dist.

1990) wherein

petitioner’s argument

centered on

mere

prior approval of

an annexation

agreement. In this case,

the City Council

through its agent,

corporate

City

Attorney Christopher

Bohien

actually

assisted

the

applicant in acquiring

annexation,

was assisted

the

applicant

in drafting the

siting ordinance,

and had extensive

discussions

regarding the Host Agreement.

(Furthermore,

it should

be noted the

FACT case

supports the

petitioner’s assertion

that the evidence of

pre-filing

contacts

of the IPCB

should

have

been

admitted

into evidence

as FACT acknowledges

that

if bias had been proved

evidence of

pre-filing contacts then

the proceedings would

have

been

fundamentally unfair).

Id.

This case is

very similar to Concerned

Citizens

for

Better Environment

vs.

City

Havana, PCB

94-44,

wherein

there was evidence

the City allowed

the

applicant to

“review the

siting ordinance,

which set

forth

procedures

followed throughout

the process.”

Id. The

Pollution

Control Board explained

that

allowing

the applicant to

review the siting

ordinance

was

one of the

elements that

showed that the City

was allowing

the applicant to have

control over

the

hearing process. Id. It is obvious from review of the record that the applicant at issue in this

case had significant control over the hearing process as its attorney not only reviewed but

actually drafted the

Rules

and

Procedures for

the hearing. (though this was

denied

by Hearing

Officer Bohlen, the March 12,

2002 correspondence

is a smoking

gun

the fact that the

applicant drafted the ordinance). Furthermore, the applicant was counseling the

City on how

effectuate its “round-table” examination and it would be futile for the City to

attempt to

deny

that

the

language suggested

the Applicant’s counsel was indeed adopted by the City. These

improper contacts were fundamentally unfair.

The Applicant hosted an improper and prejudicial visit to

other landfill

facilities.

The IPCB has held on numerous occasions that visits to

“example landfills” by the

decision-makers that are hosted by the applicant are improper. Concerned

Citizens vs. City of

Havanna, PCB 94-44, page 5 (May 19, 1994); Spill vs. City of

Madison, PCB 96-6 1 Southwest

Energy vs. IFCB, 655

N.E.2d

304

(4th Dist. 1995); (affirmed the IPCB decision because no

opponents were invited to take the tour); Beardstown Area

Citizens vs. City ofBeardstown, PCB

94-98 (January 11, 1995). Though all of these cases involved

trips that took place after the filing

the application, and before the hearing, none of the cases rested

solely on that fact to find that

the trips hosted by the applicant were

fundamentally unfair. Rather, each case

concerned the

lack of opportunity for an objector to attend such viewings.

Likewise, in this case, the Applicant

and

its counsel, crafted a very specific agenda for pre-filing

adjudication of the merits of this

application

and the creation of pre-filing bias on behalf of the

decision-makers. In accordance

with this agenda,

Mr. Volini and Town and Country hosted the City Council

members on a bus

trip to example landfills. (11/4 Tr,

270). The City Attorney, Mr. Bohlen was

not

aware of any

opponents being invited on the bus trip. (11/6

Tr. 271).

Each of the

aforementioned cases found

improper conduct

when the decision-maker

attended a site viewing

with

an applicant

that

was not

available

objectors. In this case, Mr.

Bohlen and the Mayor

were

well aware that there were

individuals strongly opposed to the

landfill, at the time of the bus trip. It would be disingenuous to establish a

procedure that

encourages

applicants to take the decision-makers on these trips,

without inviting known

objectors, and find that such

is not fundamentally unfair, merely because the trip

occurs before a

filing date. If the only consideration

was the

date of the

trip, then applicants (such as Town and

Country did

here) would be encouraged to develop biases and even seek

pre-hearings of their

evidence all before

filing an application, in an effort to render the Section

39.2 process

meaningless.

The

February 19, 2002 meeting was a pre-adjudication

of facts and an

improper impeachment of the Section

39.2 Hearing.

As evidence that the

Applicant embarked on a procedure designed to

acquire a pre

adjudication of its application, the Applicant

culminated

its pre-fihing contacts with

the decision-

maker by

making a previously described formal

presentation on February 19,

2002, to the City

Council on the

merits of the application. When one reads

the minutes of that meeting in toto

it is

undeniable that it was the purpose of

the meeting to provide an

“unfettered opportunity” for the

applicant

and its “expert witnesses” to have a direct hearing

with

the decision-makers

without the

filter

of any other participant or lawyer. It is

further clear that the purpose of the

Applicant was

present its case to the decision-maker as to the

Section 39.2 criteria through

its expert witness,

Mr. Devon Moose. It is

further clear that the purpose of the meeting was to

inform the City

Council members that the Section 39.2 proceeding

could not be trusted because it

would involve

hired-gun

environmental testifiers, rancorous

lawyers, and

objectors’ witnesses who though they

would

not appear to be fist-waiving fanatics, would tell

partial truths and could not be trusted.

At no time

did the Mayor

City Attorney Bohien

voice

any objection

the statements

that were made at the February 19,

2002

meeting. At no time that evening

did

they

direct the

City Council to

disregard any statements made

the applicant and its witnesses.

Town and Country

obviously

believed

as their counsel put

the IPCB hearing, that

there

was a “bright-line test” as to when the Applicant would

have

to be

sure that it only had

proper

communications with the decision-makers. (11/4 Tr. 216). In other words, it was

Applicant’s

position that “anything goes” until the filing of the application. However, no case

decided by

the IPCB, nor the Appellate Courts, establishes such an irresponsible

procedure.

Third District precedence demonstrate that there is no bright line based

upon the date of

the filing of the

application. As

matter of fact, the most recent Third District case to

address

the issue of

pre-judgment was Land

Lakes Company vs. IPCB, 319 Ill.App.3d

41, 743 N.E.2d

188 (3rd Dist.

200). In that

case,

the court clearly reviewed the prefiling contacts to

determine of

the specific contacts were proper. (Will County staff members had

reviewed and commented

upon the application prior to its filing but the court found

that there was no

improper conduct

because

the Special Assistant State’s Attorney for Will County,

Charles Helsten, cautioned the

County’s staff

members and other Will County departments that they

“should

not communicate

with county board members concerning the...

application”.) 319 Ill.App.3d

42-43. After

reviewing the prefiling contacts,

the

court

ultimately found that those hearings

were not

“virtually meaningless” because there was an “absence

of any pre-filing collusion

between the

applicant and the actual decision-maker.” Land ofLakes

Company

vs. Illinois Pollution

Control

Board, 319 Ill.App.3d 41, 49, 743 N.E.2d 188,

194

(3rd Dist.

2000).

The

court also noted that the County Board was

undoubtedly aware that its staff

might

have

potential bias due to the

pre-fihing contacts but the County Board

was free to accept its

proposed

Finding of Facts just like it would have been free to accept proposed finding of any

other party, including the

applicant itself.

Id at 51, 743 N.E.2d at 195.

Therefore, under Land of

Lakes the

important analysis is whether or not the pre-filing contact was with the

decision-maker

and likely to lead to

bias. In this case, the communications were directly

with

the

decision-

makers

and were highly likely to

lead

to bias.

It is blatantly

obvious that the applicant presented expert testimony to the City Council

regarding the criteria. It

also provided them documentary evidence.

10 Therefore, it is undeniable

that the

applicant indeed used the February 19, 2002 meeting as an opportunity

for the decision

maker to

have a pre-adjudication (i.e. pre-hearing) of the very

opinion testimony that would be

used

at the

siting hearing. Again, this was explicitly admitted by

Mr. Tom Volini at the

conclusion

of the lengthy presentation and before questioning by the City

Council, when Mr.

Volini closed by stating “you’ll hear this without so

much emotion and with a bunch of lawyers

fighting

with each other in about 120 days, but we wanted you to

hear it from us first.”

3156).

Furthermore, not only did the Applicant

seek

have a prejudgment of facts

that were

supposed to only be adjudicated at the Section

39.2 hearing, but it also tainted the

very integrity

of the

hearing itself. The objector’s witnesses did not walk into the

hearing room on equal

footing with the witnesses of the applicant because the

City Council had already been

informed

that such

witnesses could not be trusted.

Likewise, since the applicant had

already hired

the

“best experts” in the field and had the “dean of

landfill” siting for its attorney, the

attorneys

and

experts for any

other participant in the hearing found themselves at an

improper disadvantage.

These

documents

included the Property Value Guarantee

Plan,

document

concerning

the

needs

assessment, and a diagram of the proposed

landfill which is described in detail by Mr.

Volini.

(C 3

153-

3156).

This

handout was attempted to be admitted into the

record

petitioner’s counsel, but

was

not

allowed by Hearing Officer Halloran on the

grounds that it was an irrelevant

pre-fihing contact. For the

reasons cited above, petitioners believe that decision was erroneous as

the handout was

part and parcel of

the pre-filing of the facts

the City Council. Petitioner’s

Ex.

is contained in the

record

an offer of

proof.

Despite the applicant’s protestations to the contrary, this was not a meeting to discuss the

general logistics and procedures that would follow in a Section 39.2 hearing. To

the contrary,

the applicant presented its expert witnesses, presented its evidence on the specific

criteria, argued

its witnesses

were highly credible,

argued

that objectors’ witnesses were incredible and should

ignored, and argued that it proved

compliance

with the

criteria.

At the conclusion of the

formal presentation, and before receiving and responding to the

City Council’s questions, the

Applicant explicitly admitted that its purpose was to present its case to the City

Council without

the involvement of the emotional public or

the argument

of rancorous

lawyers.

Therefore, the City Council of the City of Kaiikakee conducted an

improper pre-hearing

of the case

that should have only been adjudicated at the Section 39.2

proceeding. Because this

prejudice is irreparable, and caused by the actions of the

Applicant, the decision of the City of

Kankakee should be

reversed with an order denying site location approval with

prejudice.

The City Required FOIA Requests

Impede the Dissemination of

Fundamental

Information Concerning the Landfill Siting Hearings.

As further evidence of the City’s fundamentally unfair procedures,

confusion and lack of

coordination in handling the Section 39.2 hearing process, the City Clerk,

Anjanita Dumas,

refused to provide the most basic information to the

County

Kankakee and other participants

in the

hearing such

the names of the parties, witnesses and hearing dates,

absent

Freedom of

Information Act request and a payment of copying costs. (11/6 Tr. 249).

Apparently, the City

Clerk failed to

understand that this was a quasi-adjudicative process and

therefore the City Clerk

was no longer just a keeper of records but was also acting as a Court

Clerk in regard to this

proceeding.

The result of the City Clerk requiring the FOJA request for the

names of the parties and

witnesses was that counsel for the County of Kankakee did not

receive this information until

Monday, June

17,

2002,

the very

day of

the

commencement

the

first

night

hearings.

0031).

The

City Clerk also refused

to waive costs to

the county even though

the

County

was a

public

entity and one that

had already been

denied its right to two

immediate copies

of the

application.

0031). Once again,

this procedure was

fundamentally unfair

the County

Kankakee and other

participants who were

subjected

to it.

The Hearing

Officer

was

Biased.

On the first night

of the hearing, Mayor

Green was originally

scheduled

be the Hearing

Officer.

(11/4

Tr. 308).

However, on Friday,

June 14,

2002,

objector,

Waste

Management,

filed

Motion to

Disqualify Mayor Donald

Green from serving

as the Hearing Officer

based primarily

upon the

evidence of

bias displayed at

the February 19, 2002

hearing. (C2059-2067)..

addition

to the 2/19/02 meeting,

the Motion pointed

out that a Kankakee

Daily Journal

article

indicated

that the Mayor had

refused to appoint an

individual to a vacant

seat on the

City

Council

because

of his lack of support

for bringing a landfill

to the City.

(There was evidence

admitted

at the hearing

that

the Mayor and

several City

Council

members

interviewed prospective

Aldermen

on whether they

were in favor of siting

a landfill in

the City, before appointing

him to

the

City Council). (11/6

Tr. 164; Petitioner’s

Ex. 6, attached hereto

Appendix

F).. The

objector

argued that by

Mayor Green’s

conduct

disinterested

observer might conclude

that

had

prejudged the landfill

siting application

in violation

Waste Management

vs. Pollution

Control

Board,

175

Ill.App.3d 1023,

530 N.E.2d 682,

696

(2nd Dist. 1988)

and EYE Hauling

Incorporated vs. Pollution

Control Board,

116 Ill.App.3d 586,

451

N.E.2d

555, 566

(2nd Dist.

1983) aff’d

107

Ill.2d

33,

481

N.E.2d 664

(1985). The Mayor stepped

down and

Mr. Bohlen was

immediately appointed

as hearing officer.

‘

This was

one of the grounds for

the

additional Motion

Quash filed by the

County on

June

17, 2002 and denied

by Hearing

Officer

Bohlen (C21912197).

The biases and predisposition of Mr. Bohien for the Applicant are evidenced not only by

the

extensive pre-fihing contacts that were discovered during

these

IPCB proceedings, but also by

his

admission that he believed the application would be financially beneficial to the City, and by

his rulings on the Motions to Quash of the County that were heard and immediately denied on

June 17,

2002. Obviously,

disinterested observer might understandably conclude that Mr.

Bohlen favored the Applicant. Furthermore, biases of a hearing officer which

could

not have

been discovered at the 39.2 hearing are an appropriate basis for a finding of fundamental

unfairness. American Bottom Conservancy (ABC) v. Fairmont, PCB 00-200

(October

19,

2000)

Mr.

Bohlen admitted that before the hearing commenced he had discussions with the

Mayor (and the Applicant) about

hiring

an individual

unaffiliated with the City to act as the

Hearing Officer. (11/4 Tr. 309). The City was aware that the cost of such a

Hearing Officer

would

have been the responsibility of the Applicant. Regardless, the City

council decided

appoint

only hearing officer’s that

had

substantial pre-fihing contacts with the Applicant. In

reviewing these facts, it is undeniable that the reason the City Council wanted

either the Mayor,

or Attorney

Bohien,

the Hearing Officer was because they both were intimately involved in

facilitating this Applicant’s request for siting

approval.

Therefore, the proceedings were

fundamentally unfair and should

remanded to the City of Kankakee with

direction

that a

fundamentally fair process be conducted.

The Applicant had an Improper Post-filing Ex Parte Contact

with the City

Attorney/Hearing Officer Bohien who

was

Communicating with the Decision

Maker.

The

correspondence from

the

Applicant’s attorney, George Mueller, to

Hearing

Officer

Bohlen dated March 12, 2002 is not only evidence of improper control by

the Applicant over the

hearing process, but it is also an improper post-filing ex parte

communication and is evidence

that those communications were going to continue.

Mr. Bohien

acknowledged that the

correspondence was received by regular mail after the filing of the application

(though it had

been received previously by

tealeaf)(1 1/4

Tr.

253).

When a member of a decision-maker’s staff is acting on

behalf

the City Council,

communications of that staff member with the applicant are ex

parte. Residents Against a

Polluted Environment v. County of LaSalle, PCB

96-243 (Sept. 19, 1996). In the

March 12,

2002 correspondence George

Mueller informed Attorney Bohien that the Applicant

and the City

could continue to converse concerning the terms of the host

agreement even after the

filing

the

application. (11/4 Tr.

249-253). Furthermore, the correspondence directs the

Hearing Officer

how to

amend the Rules and Procedures for the

upcoming 39.2 hearing of the

Applicant.

Therefore,

it was an improper ex parte communication and

fundamentally unfair.

THE COMBINATION OF NUMEROUS

UNFAIR PROCEDURES IN

THIS CASE

RESULTED IN A FUNDAMENTALLY UNFAIR

LANDFILL SITING HEARING.

The IPCB has held that though a specific

occurrence may not rise to the level of

fundamental unfairness, when the various

unfair practices are viewed in

combination, the

proceedings as a

whole may

ruled fundamentally unfair.

American Bottom Conservancy

(ABC) vs. Village of

Fairmont City, PCB 00-200 (October 19,

2000); City

Columbia v. St.

Clair, PCB 85-177 (April 3, 1986)..

In this case,

like ABC and

City

Columbia, the

combined unfair practices resulted in a

fundamentally unfair

proceeding. Numerous members of the

public were not allowed to

hear the

first

night of the testimony. Registered

objectors such as Ms. O’Dell,

were not recognized as

participants

and therefore could not conduct

cross-examination or even hear the

testimony of Dr.

Schoenberg on

the only night he was available, June 17.

Individuals like Mr.

Bruck were given

misinformation by the City

Clerk’s Office that they could not

after June 12,

2002, and then were barred from

entering the chamber room

on June 17, 2002, to

hear the

announcement

that they could

have

signed up that evening.

Participants were

restricted

from

receiving names

of witnesses and

participants and other

fundamental

information

concerning the

hearing

the City Clerk in a timely

fashion. Kankakee

City Police made

people

relinquish

their seats in the

hearing room

that individuals

that came with the

Applicant or

other

“preferred”

persons

would

have

seat as

happened

Ms. Barbara

Miller, an

elderly woman

who found

herself in the unenviable

position of

either having to

disregard an

armed City

policeman

or be banished to

the

hallway

attend this “public”

hearing. (11/4 Tr. 107).

Elderly

people

were forced to stand

for

hours in

crowded hallway and

stairwell. 75-100

people

were

barred

from entering

the City Council

Chambers

at all. Dozens upon

dozens

of people

were

forced to

stand shoulder

to shoulder in a crowded,

hot

corridor

and stairwell where

they could

neither see

nor hear the

proceedings. The first

night of the hearing

continued

long past the

posted cessation

time

resulting

in members of

the public not

attending

because

they thought the

City would

abide by the notice.

The first night

of the hearing was allowed

to proceed

until 12:30

in the a.m. the next

morning prejudicing

the County of

Kankakee and

other objectors who

were

forced to

attempt to

conduct cross-examinations

such

an unreasonable hour.

The

published

notices

of the

hearings

were conflicting, confusing

and

improper. The City

even

failed

its

own siting ordinance

regarding the

procedures

to participate,

and failed to

its own

ordinance

requiring

copies of the

application

be immediately

delivered to the

County

Solid Waste Director

and

Chairman

of Kankakee

County

Board.

Furthermore

the City allowed

the

applicant

take the City Council

on a bus

trip to an “example”

landfill

before

the

application was

filed.

If that is

not enough to

establish fundamental

unfairness,

we also have

the egregious

meeting on February

19, 2002,

where the applicant

explicitly

confessed

that he

wanted to have a

chance

to talk

directly

with the City Council

without the filter

of lawyers to

present his expert

witnesses

how the

criteria were met.

The

applicant,

with

the

City’s

apparent

endorsement

and

approval,

even

went

on to inform the

City

Council that the

Section 39.2 proceedings

could

not

trusted because

objectors’ witnesses

were merely hired

to go

around

and testify against

landfills

and

tell half-truths.

Finally, the refusal

of the City Council

appoint

an unbiased Hearing

Officer

was the

culmination of the fundamentally

unfair

conduct

this case.

Obviously, when

all these factors

are viewed in

combination,

these proceedings were

extremely

tainted

(much

more so than even ABC

or City of

Columbia) and the

decision of

the

City of Kankakee

should obviously

be vacated. When

adding up

these

fundamentally

unfair

procedures, it is clear

that a

remand

of this case

the

same

City

Council

would not correct

the

prejudice that occurred.

Accordingly,

the County of Kankakee

prays

that

the Illinois Pollution

Control

Board issue

order disapproving

the application

with prejudice.

In the

alternative, the

City

Kankakee

decision

should be vacated

and the

matter

remanded with

the mandate

to hold

fundamentally

fair

hearing.

VI.

THE DECISION

OF THE CITY

KANKAKEE

SHOULD

OVERTURNED

BECAUSE

THE APPLICANT

FAILED

MEET

THE

SECTION

39.2 STATUTORY

CRITERIA

The

Application

was Inconsistent

with the County’s

Solid

Waste

Management

Plan

in Violation of Criterion

viii.

Standard of review.

Though

generally the standard

that the

IPCB employees to

review a decision

of a

local

siting authority

is whether the

decision is

against the manifest

weight of

the evidence;

compliance

with Criterion 8

is subject to de novo

review because

involves

pure question

legal

interpretation rather

than

weighing

of factual evidence.

(See, 415

ILCS

5/41(b)(1998);

Fairview

Area Citizens Task

Force

Illinois Pollution Control

Board,

198 Il1.App.3d

541, 552,

555

N.E.2d 1178 (3d

Dist.

1990); Land

and

Lakes v. Illinois

Pollution

Control Board, 319

Ill.App.3d 41, 48; 743

N.E.2d

188, 193 (3d

Dist. 2000)).

Land and Lakes,

the Third District

Court determined

that

not every issue in

regard to a siting appeal

is decided by

the manifest

weight of the evidence

standard. 319

Ill.App.3d at

48.

the contrary,

if an agency

determination is a pure

question

law, it will be subjected

to de

novo review.

Id. (citing Branson

v. Department of

Revenue, 168

Ill.2d 247, 659

N.E.2d

961

(1995). Furthermore,

where an agency

determination

presents a mixed

question

of law and

fact,

it will be set aside if

it is clearly

erroneous which is a middle

ground

between the deferential

manifest weight

of the evidence

standard

and

the de novo standard.

Id.

(citing City

ofBelvidere

v. Illinois State

Labor Relations Board,

181 Ill.2d 191,

692 N.E.2d 295

(1998).

this

case,

the language

of the Solid Waste

Management

Plan and its amendments

undisputed and therefore

the only

issue is to interpret

the

meaning

of that Plan as amended.

Since

this

pure legal interpretation,

should

subjected

to de novo

review. Even if the

Board

employs

the clearly erroneous,

or the

manifest

weight of the evidence

standard,

the City

Council

decision

should still be reversed

because

the

language of the plan

is clear.

The

plain

language

of the Solid Waste

Management

Plan establishes

that the

County desired

only one

landfill

and

that landfill

would be

the existing

landfill

when expanded.

Section 39.2(a)(viii)

provides that

an applicant

for local siting

approval

of a pollution

control

facility must demonstrate

that:

the facility is to be

located in

the

County where the County

Board has

adopted a

Solid

Waste

Management

Plan consistent

with the

planning requirements

the

Local Solid Waste

Disposal Act or

the Solid Waste

Planning and Recycling

Act,

the

facility is consistent

with that plan.

415 ILCS 39.2(a)(viii)(2001).

The Applicant

has acknowledged in its

application that

uKankakee

County adopted its

Solid Waste

Management Plan on October 12,

1993

outlining the recommended Solid Waste

Management System

for the County. This plan was readopted August 18, 1995 and the five

year

update

was approved on July 31, 2000. The Kankakee County

Board

approved

an amendment

the plan on October 9,

2001.”

(Applicant’s Ex. 1, 10464). The

unsigned portion of the three

pages of the application (which is the only portion that addresses

Criterion viii) acknowledges

that the following statement

appeared

the Plan

as amended

on October

2001:

An expansion of the [existing Kankakee County] landfill, if approved,

will satisfy

the County’s waste disposal needs for an additional twenty

years.

new

disposal facilities will be necessary or desired in

Kankakee County for purposes

implementing the Plan.

(Applicant’s Ex.

10464).

The Applicant

further noted that the 10/9/0 1 Plan Amendment provided:

Kankakee County will not support and

will

contest

the development of any

other

landfill

in the County, unless the

expansion of the existing landfill is not

approved.

Id.

Despite the fact that the operator of the Kanicakee

County Landfill is presently seeking an

expansion, the Applicant nonetheless concluded that

the new landfill it proposes is not

inconsistent with the County

Solid

Waste Management Plan. (Applicant’s Ex.

1, 10464).

At hearing, on this matter, a copy of the

Solid Waste Management Plan was

admitted into

evidence by Kankakee County. In

addition,

the

amendments to the plan of October 9,

2001 and

March 12, 2002 were also admitted into

evidence. Though the application makes no

reference

the March 12, 2002 amendment;

resolution was passed by the County

Board of Kankakee on

that date which amended the first two

paragraphs

Section 6: Available

Landfill Capacity in

Kankakee County of the Kankakee County Solid Waste

Management Plan, to read as follows:

Kankakee County has

single landfill owned and operated by Waste

Management, Inc. This

landfill has

provided

sufficient capacity to dispose of

waste

generated in Kankakee County and its owner has advised the County

that it

plans

apply for local siting approval to expand the facility to

provide additional

disposal

capacity for the County. Operation of the landfill has been

conducted

pursuant to a

Landfill Agreement signed

the County and Waste

Management

in 1974, and subsequently

amended from time to time. In the event

siting

approval for expansion is

obtained, the landfill would provide a

minimum of

twenty

(20) years of long term disposal capacity through expansion of

the existing

landfill.

expansion of the existing landfill, if approved, would then

satisfy the County’s

waste

disposal needs

for at

least an additional twenty years and in

accord with the

Kankakee Solid Waste Management Plan (as amended) as

well as relevant

provisions

of the Local Solid Waste Disposal Act and the Solid

Waste Planning

and Recycling

Act, no new facility would be necessary.

Kankakee Solid Waste

Management Plan as Amended March 12,

2002 (Kankakee County Ex.

2).

Additional text

was included in the Solid Waste Management Plan as

of March 12, 2002

that:

[t]he owner/operator of any new

or expanded regional and

pollution control

facility (as that term is defined by

Section 3.32(a) of the Illinois

Environmental

Protection

Act) in the County shall be

required to post and maintain

for the life of

such regional pollution

control facility either: (1) an

environmental contingency

escrow fund of a minimum of

million

dollars

based

upon

an annual

payment

not to exceed (five

years), or (2) some other type of payment or

performance bond

or policy of on-site/off-site

environmental impairment insurance

an amount

acceptable to the

County. This requirement shall be in

addition

the

satisfaction

any and all financial assurance requirements

established by state or

federal law

and/or

regulation.

Kankakee County Solid

Waste

Management Plan Amendment,

March

12, 2002, Pg 3 (Kankakee

County

Ex.

2).

Furthermore, the

March 12, 2002 Amendment explicitly required

that:

[T]he owner or

operator

of a

proposed new landfill or

landfill expansion in the

County shall be

required

to establish a property value

guarantee program

for

households

within

site-specific distance from the

proposed landfill site,

such

property value guarantee program to be

prepared

an independent

entity

satisfactory to the County. Id.

The

language of the October

2001

Amendment was

clarified

the

March

12, 2002

Amendment, which explicitly

provided

that it was the County’s plan that no new facilities

would

be needed within the County borders as long as the existing landfill’s proposed

expansion is

approved. The resolution makes it clear that the owner of the existing Kankakee County Landfill

has “advised the County that it

plans

to apply for local siting approval to

expand the facility to

provide additional disposal

capacity for

the County.” Id.

In fact,

an application for expansion was filed by the Karikakee County

Landfill

operator.’

2It

is obvious from reading the Amended Plan that the County intends

for only one

landfill to be

operating within its borders

(as

long

that landfill is sufficient to provide twenty

years of long term disposal capacity),

and that

the

County prefers that the present landfill simply

expanded rather than a new facility (and its resultant impacts)

be erected within the County

borders. Furthermore, it

clear from the Plan that the Kankakee County landfill

operated

Waste

Management shall

the sole facility unless its explanation is disapproved.

The

Waste

Management

application was filed, and at this point has not been disapproved.

Therefore, the

siting

of another facility before the Kankakee County

Extension Facility is disapproved is

blatantly and plainly inconsistent with the

County Plan.

The

unsigned conclusions of the Applicant Town &

Country of consistency are based

solely upon the October 9,

2001 Amendment, and fails to even acknowledge by

the March 12,

2002 amendment. At no time has the

Applicant attempted to amend its

application to explain

how it could possibly be consistent with the

Solid Waste Management Plan as

amended on

March 12, 2002.

The Section

39.2 hearing on

the

application for expansion of the Kankakee County

Landfill

is presently in front

of the Kankakee County Board and began on

November 18, 2002 and is continuing

through the date of the

filing of this brief.

Furthermore,

even the anonymous

conclusion in the

application

(which was adopted

the City Council)

relating

the October

2001

Plan Amendment is

illogical and

unsupportable.

The October 9,

2001 Amendment

made it clear that the

County

wanted

one facility within

its

borders, and that

facility should be

at its present location,

thereby

minimizing

the impacts

to the

County (so long as

an expansion

of that facility is approved).

The

Applicant

and City Council’s

assertion

that there

must

be final approval

of an expansion of the

existing facility

in the County

before a new

siting application

is inconsistent with

the Solid Waste

Management Plan,

simply

disingenuous and

illogical. There

is nothing in the

Solid Waste Management

Plan that

provides

that

the Kankakee

County

Landfill expansion

must

be finally

approved to make

the Plan

restriction on the

number of

landfills located within

the County

effective. On the contrary,

the

County

Solid Waste

Management Plan

is plain and

unambiguous in that

the County

planned

that

the present Kankakee

County

Landfill would be

the only

landfill

within the County

borders,

and

the County

instituted

this

restriction based upon

the anticipated

filing of

application for

extension.

As this extension application

has

now been filed, it is

even more

obvious

that the

Town &

Country

application

is inconsistent

with the County

Solid Waste

Management

Plan

Therefore,

the

finding of the City

Council as to Criterion

was erroneous

the

plain

language

of the Plan establishes

the

application

is inconsistent

with

the

Plan. The obvious

inconsistency

with the County

plan

dispositive issue of

this entire case.

Though the

fundamental

fairness

problems are substantial,

the City Council

decision

should simply be

reversed

and the application

denied

with

prejudice

the County

is the

primary

planning body

for Waste

Management and the

application is not

and cannot be

consistent

with

Criterion viii.

The County

Solid Waste Management

Plan as

amended

requires

that

Property

Value Guarantee Program

be prepared

by an

independent

entity satisfactory

to the County;

however, there is no

evidence that

independent

entity

prepared

the program contained

within the

application or

that the County approved

it.

As indicated

above,

the

March

12, 2002 Amendment

explicitly

provided that

any

application for a proposed

facility must

include

a Property

Value Guarantee

Program

prepared

by an

independent

entity satisfactory

the

County. However,

no evidence was

contained in the

application or presented

the

Applicant in the hearing

that such a program

was established

independent

entity. Furthermore,

no evidence was introduced

the Applicant that

the

County

ever

approved

the independent

entity that was to

develop the

program. No expert

testimony

was offered by

the Applicant that these

Plan requirements

were

met.

To the contrary,

Dr. Schoenberger (whose

testimony

mainly revolved around

the legality

of the

amendments,

and

was, therefore,

stricken)

admitted that he

did

not

know

whether

independent entity

being

approved

the County

had prepared the

Property

Value Guarantee

Program proposed

Applicant. (6/17/02

Tr. 162). Because

the

Applicant

failed to present

expert testimony

consistency

with this

requirement, and because

the

application

fails to even

address the issue,

the

application on its

face is

inconsistent

with the County

Solid

Waste

Management

Plan.

There was no

evidence

that any

environmental

damage

fund or

insurance

was

accepted, or even

offered to

the County,

for approval.

The

Solid

Waste Management

Plan

explicitly

required that any

entity that

intended to

operate

a landfill

within

its

borders

provide

either an

environmental contingency

escrow

fund

with a

minimum

deposit of

million dollars

or some other

type of payment

performance

bond or policy

approved

the County.

The

application

entirely

fails

address

the

requirement

County approval

and the

applicant offered no

expert

testimony

on the issue.

Dr. Schoenberger

admitted

that he did not know

whether

the County had approved

any insurance

policy

offered by

the applicant.

(6/17/02 Tr.

167). Therefore, the Application is inconsistent with the Plan as a

matter

law.

The Applicant failed to present any testimony

or evidence

in regard

Criterion viii.

Though the Applicant attempted to present testimony of consistency with the Solid Waste

Management Plan through Professor Alan Schoenberger (who attempted to attack the validity of

the Amendments as opposed to testifying regarding consistency of the application with the Plan

amended), such testimony was correctly stricken

Hearing

Officer

Bohlen as legal

conclusion and beyond the scope of inquiry in a Section 39.2 hearing. Stricken testimony cannot

be considered by

the City Council

reaching

its decision.

Because Professor Shoe Berger’s entire opinion was based upon an improper assumption

(as a matter of law) that some of the text of the Plan could be ignored

the City Council, none

of his opinions regarding consistency are persuasive. Indeed, the IPCB has already

ruled

that it

not within the scope of its review to consider how a Plan is adopted. Residents

Against

Polluted Environment v.

County of LaSalle and Landeomp Corp,

PCB 97-139 (June 19,

1997)(citing Residents Against a Polluted Environment v. County of LaSalle and Landcomp

Corp, PCB 96-243 (July 18, 1996).

Therefore, Dr. Schoenbergers testimony that the

amendments to the Plan were not properly adopted is not reviewable and rather the

only

issue

whether the Application is consistent with the Plan. Clearly, it is not

consistent and

the

Applicant has failed to present any competent testimony concerning the basis for the

Applicant’s

conclusion that its request is consistent with Criterion viii.

The County presented evidence as to the lack of consistency

with the Solid

Waste Management Plan.

Unlike the Applicant,

the

County did submit

evidence

that Criterion 8 was not met.

Specifically, the Kankakee County Board Chairman Karl Kruse testified by

sworn affidavit that

he had firsthand knowledge about the intent of the Kankakee County Solid Waste Management

Plan and the amendments to

the Plan.

2295-

2305). Mr. Kruse testified

affidavit

that

the Kankakee County Board first adopted its

Solid Waste Management Plan on October 12, 1993

and it was amended on August 8, 1995.

2295).

Chairman Kruse explained that when the

Plan was first

adopted,

a facility was identified

to address the future disposal needs of the County

and that facility was the

Waste

Management

Landfill.

2296).

the summer of 2001, Waste Management

publicly announced its intention to expand

its existing facility

Kankakee County.

Id. At the same time, the County learned of possible

efforts to develop a second landfill within

the County which was the subject of the City of

Kankakee

proceeding.

Id. Because

the existing facility operated by Waste Management

provided

the residents of the County with safe, convenient, reliable disposal capacity, since the

adoption of the County’s Solid

Waste

Management Plan

1993,

resolution

was

brought

October 9, 2001 to continue designation of this facility to meet the long-term needs of Kankakee

County. Id.

That resolution also identified the potential additional impacts that might occur if

second landfill was located within

the County

2296)

and as

explained above, the

plain

language

of that October 9, 2001 amendment made it clear that the County opposed opening its

second landfill within its borders. Id. Mr. Kruse noted that the County Board voiced its

overwhelming support for that October

2001 resolution which received 26 affirmative votes

and only

one

negative

vote. Id.

In early 2002, the County Board became aware of the proposal for location of a third

landfill within Kankakee was forthcoming. Id. On March

12, 2002, another resolution was

passed

before the County

Board which, among

other things, again reiterated that if Waste

Management received siting and permitting approval for its proposed expansion, no further

disposal facilities would

be necessary to meet

the long term needs

of the County. Id.

Mr. Kruse

further

testified that the March

12, 2002 resolution

reflected the County

Board’s concern

over

the additional

impacts

that might

occur if a second

(or even third) landfill

were

sited in

the

County.

Id. Once again, the

Board voiced its overwhelming

support

for

the

resolution

with 21

affirmative

votes (and the negative

votes were

from Board Members

that did not

want

the

restriction

on acceptance

of out of County

waste

removed

and all were opposed

to a second or

third

landfill

in the County).

Id. Mr. Kruse

noted that he

presided over and

witnessed the

deliberations

that took place

concerning both of

the resolutions

and

based

upon

his

role as Chief

Executive

of the County’s

government,

he firmly

believed that unless

and

until

the proposed

expansion

the Waste Management

facility was

disapproved, no

further proposed facilities

were needed

meet

the long-term disposal

needs of the County

and that

those

facilities do not

comport

with the County’s Solid

Waste

Management

Plan.

2297).

Worthen vs. Village

Roxanna,

253 Ill.App.3d 378, 623

N.E.2d 1058,

1063-1064 (5th

Dist.

1993)

establishes

that

Mr. Karl Kruse’s

testimony should

given

great weight. In

Worthen,

the

local siting authority,

employed

an interpretation

of a

county plan which

differed

from

a petitioner’s

witness. The court

noted that

the “petitioner’s

witness

was not a person

authority

in the

county” whose opinion

should be

followed. Id. However,

this

case, the

County

Board Chairman

himself testified

as to

his

understanding of the

intent

the County

Board

in passing the

Solid Waste Management

Plan and

its

overwhelming

support

for the

amendments

passed by

resolution. Therefore,

Mr. Kruse’s testimony

should

given

great

weight

particularly

in light of the

fact that there was

no contrary

testimony

presented

by the

Applicant.

Accordingly, the City

Council decision as

criteria viii

should be

reversed as it is

clear that the

application

is inconsistent with the

County’s

Solid

Waste

Management

Plan.

The Finding

as to Criterion ii was Against the Manifest Weight of the

Evidence.

The

application provides that Thedrock five feet below

the bedrock surface became

competent and serves as an

aquitard.” (Applicant’s Ex. 1,

10122). However, the evidence

was

clear

the hearing that the Niagaran dolomite

immediately

beneath the landfill was not an

aquitard and,

on the contrary, was actually an aquifer. It was

explained at the hearing that

aquitard is an area that

is retardant to water, in other words is impermeable to

such a degree that

water is precluded

from entering or exiting an adjacent area at

any significant velocity, whereas

an aquifer is an area that contains

water

which may

be used

as a source for wells.

The evidence

admitted

at the hearing clearly showed that the

fundamental assumption

and the linchpin of the

application

was that the bedrock was an aquitard.

The Applicant’s

conclusion that the unweathered

portion

the Silurian dolomite was an

aquitard was, at a

minimum, conjectural, and not supported by

appropriate study and clearly

irrational

under the

evidence presented to the

City Council at hearing. The diagram contained

within the application

establishes that the

landfill liner will be located directly

upon Niagaran dolomite. (Applicant’s

Ex. 1, 10237). For some

unpersuasive reason the Applicant did

only one “deep” soil boring

within the landfill footprint.

That one “deep” soil boring demonstrated

that the upper five feet of

the Niagaran dolomite bedrock was weathered,

incompetent,

and fractured to

such an extent that

water would pass

readily through this portion of the

bedrock. Nonetheless, the

Applicant

concluded from this one

soil

boring that after five feet the

dolomite became sufficiently less

permeable such that water

would

not pass through it.

Hydrogeologist Steven

VanHook testified that he did not

believe there was enough

information provided by

Applicant to reach the conclusion that

dolomite is an aquaclude, as only

one boring, was obtained to support

this assumption, and a significant

number of wells in the

area located in this rock

formation were

producing water. (C1230). Stuart

Cravens, also a

hydrogeologist with a Bachelor’s Degree in Geology and Hydrogeology from the University of

Toledo,

and a Master’s of Science Degree in

Geology

from the State University of New York at

Albany with eight years of experience as

professional scientist

with the

Illinois State Water

Survey (with

principal focus on characterizing the ground water resources in Northeastern

Illinois including

Kankakee

County,

within

500 feet

the subject’s site),

personally inspected

three wells

and reviewed well logs near and on the site and concluded that the proposed facility

sat

within

Silurian dolomite aquifer, and that the bedrock was not an aquitard.

1309-1315,

1369, 1391, 1395-1397, 1406-1409). In turn, he testified that the location of

the proposed

facility would be detrimental to the public health, safety and

welfare

because

the landfill was

actually being carved into a regional aquifer with no retardant in situ geology

between the

landfill and the drinking water supplies of tens of thousands of

people.

1452).

The fact that the dolomite beneath the landfill was improperly

characterized

as an

aquitard is emphasized

the evidence that within a two mile radius of the site the

average

well

depth

is 115 feet, with a minimum well depth of 30 feet

and

maximum well depth of

411

feet.

(C1406). Accordingly, the evidence strongly suggests

that the wells in the area are certainly

drawing water from depths deeper than five feet below the top of the

Dolomite layer, and are

indeed drawing water from the dolomite into

which the Applicant proposes to build its landfill.

In other words, the Applicant is proposing the

building of

landfill within the very

aquifer

from

which over 300 wells in the immediate area draw their

water.

The written application itself contains numerous

and explicit admissions that the

unweathered lower dolomite is actually an aquifer rather than an

aquitard. For example, the

Applicant’s project engineer, Devin Moose, conceded

the application acknowledges such at

Volume I

Section 2.2-26 that “Chebanse is the closest community which uses

the Silurian

dolomite aquifer

[for

well

water]”.

(C681: Applicant’s

Ex.

10112).

Furthermore,

well

No.37

(which is immediately

outside

the

proposed facility),

the

application

obtained its

water between

47 feet and

100 feet within

the bedrock. (Applicant’s

Ex. 1,

30021; C672). Mr.

Devin Moose

also conceded

that other than this

application, he

was unaware of

the Silurian

dolomite

ever

being described

in any

geological study as

an aquitard. (C688-689).

Therefore,

the conclusion

that

the

dolomite is an aquitard

(which the design

relies upon)

is not supported by

the evidence

even

the application itself.

This is a

fundamental

concern.

The

hydrogeologist

Mr. Cravens

unequivocally testified

that the Silurian

dolomite

bedrock

simply

not an aquitard, and

the application’s

assertion that it is

an aquitard

“is the first

representation

[of such]

I’ve seen

in 20

years”.

(C1446).

Hydrogeologist

Sondra Sixberry also

unequivocally

testified

“The

Silurian dolomite

is a

known

aquifer

in this area

and should

recognized

as such.”

(C1288-1289).

Mr. Moose admitted

that

the application

acknowledges

“the

groundwater for the

wells is obtained

from the Silurian

dolomite

aquifer”.

(C677).

Hydrogeologist

Steven Van Hook

testified

that the

applicant used

only

one

test boring to

conclude

that the

Niagaran

dolomite was

an aquitard.

(C1212). Professor

Sondra

Sixberry

and

Hydrogeologist

Stuart Cravens

both agreed

that one soil

boring over a 265 acre

site is a

woefully

insufficient

basis to

reach

a conclusion that

a bedrock

formation

which is

(well-recognized

to be

aquifer

in this area) will

somehow act as

an aquitard at this

specific

site.

(C1298, C1442-

1443).

The

Applicant

admitted that further

borings will be

necessary to

confirm its

“theory”

that

the Silurian Dolomite

may

act

as an aquitard, this is

evidence that

the applicant has failed

to meet

its burden

of proving that

the site is an appropriate

location

for

the

landfill.

Given the fact

that

is undisputed

that

tens

of thousands of people

use the

Silurian dolomite

aquifer for their

water

source, and further given that the Applicant proposes to actually carve its landfill into the

aquifer, the lack of

sufficient

study

of the characteristics of the dolomite surrounding the

landfill

requires

the

inescapable conclusion

that

the applicant has failed to show that the landfill will be

designed, operated, and

especially located

so as to protect the

public health and welfare.

Therefore,

the Kankakee City Council’s finding that criterion ii was met

is against the

manifest

weight of the evidence.

The Finding as to Criterion v was Against the Manifest

Weight of the Evidence.

Criterion v requires that there be a showing that “the

plan of operations for the facility is

designed to

minimize the danger to the surrounding area from

fire, spills or other

operational

accident&’. 415 ILCS 5/39.2(a)(viii)(2001). The

application contains a Health

and Safety Plan

to be used by the

landfill which provides that the local City of

Kankakee Fire Department shall

respond to all fire,

spill or operational accidents at the facility.

(Applicant’s Ex. 1,

10404;

C5 16-517).

However, at the hearing the Applicant

admitted

that it has never

spoken with the

City of Kankakee

Fire

Department personnel to determine

if they are equipped,

staffed, and

trained to handle those fires,

spills and operational accidents which

might occur at a landfill site.

(CS

17-5

18).

The

opinion of the Applicant’s project

engineer

that Criterion v is met

was based

squarely upon

the capability of the Kankakee

Fire Department to respond to

accidents at the

facility, but

neither the project engineer nor

the Applicant ever verified that

this local department

could

respond in

the manner outlined in the application.

Therefore, Applicant’s

opinion that

Criterion v was met is based upon pure guess

and speculation. Accordingly,

the Kankakee City

Council’s finding that Criterion v was

met was against the manifest

weight of the evidence

and

the decision of the

City approving the siting application

should

reversed.

VII. CONCLUSION

For the foregoing reasons the County of Kankakee

prays

that

the

Illinois

Pollution

Control

Board order that the decision of the City

of Kankakee reversed, thereby

entering an order

denying site location approval with prejudice. This is particularly appropriate as the application

is not, and cannot be, consistent with Criterion viii. In

the

alternative, the County prays that the

City

of Kankakee decision be vacated and this matter remanded to the City Council of Kankakee

with a mandate to hold a fundamentally fair proceeding.

Dated: September 18, 2002

Respectfully submitted,

EDWARD D. SMITH

KANKAKEE

COUNTY

STATE’S ATTORNEY AND THE COUNTY

OF KANKAKEE

By: HTNSHAW

CULBERTSON

Edward D.

Smith

State’s Attorn

Charles F. Helsten

tsAttne7

Richard S. Porter

One of Its Attorneys

HINSHAW AND CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-963-8488

Printed

on 100% Recycled

Paper

70335769v1 815142

TABLE

CONTENTS

APPENDIX

Appendix

— Summary

of Certain

Testimony

Pollution

Control

Board

Hearings

(11/04/2002

through

11/06/2002);

Appendix

B — Minutes

February

19,

2002

Pre-Application Hearing

Appendix

— Petitioner’s

Exhibit

2 (March

12,

2002 Correspondence

from

Applicant’s

attorney

Christopher

Bohlen.)

Appendix

— Amendment

Kankakee

County

Solid

Waste

Management

Plan,

March 12,

2002

Appendix

— Amendment

to Kankakee

County

Solid Waste

Management

Plan,

June

17,

2002

Appendix

F — Interview

Questions

Fifth

Ward

Alderman

70335772v1 815142