COUNTY
OF
KANKAKEE,
ILLINOIS,
and ED
SMITH,
KANKAKEE
COUNTY
STATES
ATTORNEY,
V.
Petitioner,
THE CITY
OF KANKAKEE,
ILLINOIS
)
CITY COUNCIL,
TOWN AND
COUNTRY)
UTILITIES,
INC. and KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
Respondents.
)
)
)
)
)
)
)
)
)
bVED
p5
OFFrc
DEC
42OO2
STATE
OF
ILLiNOIS
PolluttOn
Control
Board
)
No.:
PCB
03-3 1
)
(Third-Party
Pollution
Control Facility
Siting
Appeal)
BYRON
SANDBERG,
V.
Petitioner,
THE CITY
OF KANKAKEE,
ILLINOIS
)
CITY COUNCIL,
TOWN
AND COUNTRY)
UTILITIES,
INC. and KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.,
)
Respondents.
)
)
)
)
)
)
)
No.: PCB 03-33
)
(Third-Party
Pollution
Control
Facility
Siting
Appeal)
WASTE
MANAGEMENT
OF ILLINOIS,
)
INC.,
)
Petitioners,
THE CITY
OF KANKAKEE,
ILLINOIS
)
CITY COUNCIL,
TOWN
AND
COUNTRY)
UTILITIES,
INC.
and
KANKAKEE
)
REGIONAL
LANDFILL,
L.L.C.
)
)
Respondents.
)
)
)
No.
PCB
03-35
)
(Third-Party Pollution
Control
Facility
)
Siting Appeal)
)
)
)
)
V.
This
Document
is Printed
on Recycled Paper
NOTICE
OF
FILING
TO:
See Attached
Service List
PLEASE
TAKE
NOTICE that
on
December
4,
2002, we filed
with
the Illinois
Pollution
Control
Board,
the
attached
WASTE
MANAGEMENT
OF ILLINOIS,
INC.’S
REPLY
BRIEF
in the above
entitled
matter.
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.
By://L
One
of
Its ttorneys
Donald
J. Moran
PEDERSEN
& HOUPT
161 North
Clark Street,
Suite 3100
Chicago,
Illinois 60601
(312) 641-6888
Attorney Registration
No. 1953923
This Document
Is Printed
on Recycled Paper
PROOF
OF SERVICE
Victoria L. Kennedy,
a
non-attorney,
on oath
states that
she
served
the
foregoing
Waste
Management
of Illinois,
Inc.’s Reply Brief
on the
following
parties
by hand
delivery
to Ms.
Dorothy
M. Gunn,
Clerk of the
Illinois
Pollution
Control
Board and Brad
Halloran at
the
addresses
indicated
below on the
4th day
of December,
2002, by U.
S.
Express
Mail
delivery
to
Mr.
Byron Sandberg
and by Federal Express
delivery
to all other parties
at their addresses
indicated
below
on this 3rd day of December,
2002:
Ms. Dorothy M. Gunn,
Clerk
Illinois Pollution Control
Board
James R. Thompson
Center
100 West Randolph
Street, Suite 11-500
Chicago, Illinois
60601
Town and Country
Utilities, Inc. and
Kankakee
Regional
Landfill LLC
do
Mr. George
Mueller
Attorney at Law
501 State Street
Ottawa, Illinois 61350
Via Facsimile: (815)
433-4913
Brad
Halloran
Assistant Attorney
General
Environmental
Division
100 West Randolph,
11th
Floor
Chicago, Illinois
(312) 814-36698
Byron
Sandberg
P.O. Box 220
Donovan, IL 60931
Mr.
Charles
F.
Helsten
Hinshaw
& Culbertson
100 Park
Avenue
P.O.
Box 1389
Rockford,
Illinois
61105-1389
Via Facsimile:
(815) 963-9989
Edward Smith
Kankakee County State’s
Attorney
Kankakee County Administration
Building
189 East Court Street
Kankakee,
Illinois
60901
Via Facsimile:
(815)
963-9989
Kenneth
A.
Leshen
One Dearborn
Square, Suite
550
Kankakee,IL
60901
Via Facsimile:
(815) 933-3397
Victoria L. Kennedy
This Document
is Printed
on Recycled Paper
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BJWW
OIPICE
COUNTY OF
KANKAKEE; and
EDWARD D. SMITH,
)
DEC
4
2002
STATE’S ATTORNEY
OF
KANKAKEE
COUNTY,
)
STATE
OF
ILLINOIS
)
Pollution
control
Board
Petitioners,
)
v.
)
PCB 03-3 1
)
(Third Party
Pollution Control
Facility
THE CITY OF
KANKAKEE,
ILLINOIS; THE
CITY OF
)
Siting Appeal)
KANKAKEE,
ILLINOIS CITY
COUNCIL; TOwN
&
)
COUNTRY
UTILITIES, INC.;
and
KANKAKEE
)
REGIONAL
LANDFILL, L.L.C.,
)
)
Respondents.
)
BYRON
SANDBERG,
)
)
Petitioner,
)
v.
)
PCB 03-33
)
(Third Party
Pollution
Control
Facility
THE CITY OF
KANKAKEE,
ILLINOIS; THE CITY
OF
)
Siting Appeal)
KANKAKEE, ILLINOIS
CITY COUNCIL;
TowN
&
)
COUNTRY UTILITIES,
INC.; and
KANKAKEE
)
REGIONAL LANDFILL,
L.L.C.,
)
)
Respondents.
)
WASTE MANAGEMENT
OF ILLINOIS, INC.,
)
)
Petitioners,
)
v.
)
PCB 03-35
)
(Third Party
Pollution
Control Facility
THE CITY OF KANKAKEE,
ILLINOIS;
THE CITY OF
)
Siting Appeal)
KANKAKEE,
ILLINOIS
CITY COUNCIL;
TowN
&
)
(Consolidated)
COUNTRY UTILITIES,
INC.; and
KANKAKEE
)
REGIONAL LANDFILL,
L.L.C.,
)
)
Respondents.
)
WASTE
MANAGEMENT
OF ILLINOIS, INC.’S
REPLY
BRIEF
Petitioner, WASTE
MANAGEMENT
OF ILLINOIS,
INC. (“WMII”),
by and
through
its
attorneys Pedersen
& Houpt, submits
this
brief
to reply
to the
following
matters raised in
Applicants
Brief.
A.
The February
19,
2002
Meeting
Was
A
Hearing
At Which the
City
Council
Prejudged
Town
& Country’s Siting
Application
On February
19, 2002,
Town &
Country
Utilities,
Inc. and
Kankakee
Regional
Landfill,
L.L.C.
(“T&C”),
through
its
principal,
Thomas
Volini
and Attorney
George
Mueller,
presented
documentary
evidence and expert
witnesses
to the
Kankakee
City Council
in support of
T&C’s
application
for siting approval
of its
proposed
400-acre
sanitary landfill.
The meeting was
referred to
by Mayor Green as
a
“special presentation”
for
which he requested
the City
Council’s
“special indulgence”.
City
Council
2/19/02
Tr. at 5. In fact,
the
meeting
was
conducted
as
a
hearing to consider
the
T&C
application.
The Mayor
presided over the
T&C presentation
as if he
were a hearing
officer. He
introduced
the
T&C
siting
request, stated
that any
member of the
City
Council could
ask
questions,
and turned the
floor
over to
Mr.
Volini.
City
Council 2/19/92
Tr. at 6. Mr.
Volini
discussed
T&C , its qualifications
and
experience. City
Council 2/19/02
Tr. at 7. He
introduced
T&C’s
siting team, including
its lawyer,
Mr. Mueller, and its
expert
witnesses.
City
Council
2/19/02
Tr. at 7-8. He offered
a set of
documents in support
of
the siting
request, and
later
explained
them. City Council
2/19/02
Tr. at 8, 15-18. He told
the City Council
that
“(w)e’re
on
trial”
and “(y)ou’re on trial.”
City
Council
2/19/02
Tr. at
8. He then had
Mr. Mueller
talk
about
the
legal setting and the siting
process.
City
Council
2/19/02
Tr. at
8-9.
Mr. Mueller
made an opening
statement. He
described
the
siting
process
and
Section
39.2 of
the
Illinois
Environmental
Protection
Act. He told the
City
Council that
they are
the
jury,
This Document
is Printed on
Recycled
Paper.
2
and
perform
a
quasi-judicial
role.
He
stated
that
the evidence
which
will
be
presented
supports
the
10 criteria,
and
that the
decision
must
be
made
on
the evidence.
City Council
2/19/02
Tr.
at
9-10.
He
pointed
out that
if
the
City
Council
finds that
T&C
has established
the statutory
criteria,
the
proposal
still
has
to be reviewed
by
the Illinois
Environmental Protection
Agency.
City
Council
2/19/02
Tr. at 10.
Two expert
witnesses
made
presentations.
Mr. Devin
Moose,
T&C’s
principal
witness
at
the siting
hearings
that
commenced
June 17,
gave
expert
opinion
on
each
of the
nine
statutory
criteria
and explained
how
T&C
satisfied
those
criteria.
City
Council
2/19/02
Tr.
at 11-14.
Ms.
Jamie Simmon
warned
the City
Council
about
“landfill
opponents”
and
“environmentalists”
who
will quote
from
outdated
reports
in an
effort
to show
that
“all
landfill
liners
eventually
will
leak.’
t
City Council
2/19/02
Tr. at 15.
To
defeat
this
controversy
and
confusion,
she
urged
the City
Council
understand
the science
and hear
the
evidence
in
making
its
decision.
City
Council
2/19/02
Tr.
at 15.
After
Mr.
Volini
explained
the
submitted
documents,
Mayor
Green
allowed
the
City
Council
members
to
ask questions.
City Council
2/19/02
Tr. at
18. During
the
course
of the
questioning,
Mayor
Green at
one point
interceded
and
decided
to
answer
a question
himself.
In
response
to
an
inquiry
from
Alderman
Williams,
he
stated
that
“we’re not
just
proposing
a
landfill...”
City
Council
2/19/02
Tr.
at 26
(emphasis
supplied).
Mayor
Green
concluded
the
presentation
made by
T&C
by
thanking
Mr.
Volini
and
T&C,
and
stated that
“it
was very
important
that
we
lay all
these
issues
out
on
the
table...”
City
Council
2/19/02
Tr. at
28.
This Document
is
Printed
on Recycled
Paper.
3
As
demonstrated
by
the
conduct
of the
February
19 meeting,
T&C’s
siting
request
was
presented
and
argued
to the City
Council.
The
purpose
of the
presentation
was
to
inform
the
City Council
about
the
siting process
and
the
merits
of the siting
request.
The
intent
was
to
create a favorable
impression
of T&C
and its
siting
request.
In such circumstances,
one
is
compelled
to
conclude
that
T&C intended
to persuade
the City
Council
of the
application’s
merits.
In
addition,
Mayor Green
not
only
presided
over
the presentation,
but
he also
became
an
advocate
for
the
proposal
before
the
City
Council.
His
power
and
influence as
chief
executive
officer
of the City
was
evident
and
undeniable.
He
encouraged
the
City
Council’s
review
and
consideration
of the
T&C
siting
request
at February
19 meeting.
He
declined
to inform
the
City
Council
that they
should
not
decide
the
request
until
after
all
the evidence
at the
subsequent
public hearings
could
be considered.
He
did
not warn
them
against
prejudging
the
facts.
By his
words and
actions
at the February
19 meeting,
he
left
the
clear impression
that
favorable
consideration
of the
T&C
request
that “we’re
proposing”
would be
appropriate.
T&C
argues
that the
record
is totally
devoid
of
any evidence
of
actual
prejudgment.
Applicant
Brief
at
15. It states
that
there is
no
evidence
that any
City
Council member
based
his
or her
decision
or
anything
other
than the
evidence
presented
at the
siting
hearing.
Applicant
Brief at 15.
T&C’s
argument
is unavailing.
It is
true that
there
is no
evidence
in
this
record
of a City
Council
member
admitting
that
he or she favorably
decided
the siting
request
on February
19, 2002,
or
at any
time
prior to
the
submission
of
evidence.
WMII
is unaware
of
any reported
instance
in local
siting
act
This
Document
is
Printed on
Recycled
Paper.
4
jurisprudence
where
a
decisionmaker
made
such
an
admission.
However,
the lack
of such
an
express admission
does
not
foreclose
the
inquiry
on prejudgment
of
the
application.
Circumstantial
or
indirect
evidence
of prejudgment
is allowed.
In the absence
of
an
express
admission,
a party should
be permitted
to
present evidence
from
which
the existence
of
prejudgment
can
be inferred.
See
E & E
Hauling
v. Pollution
Control
Board,
116 Ill.App.3d
586,
451 N.E.2d
555,
565 (2d
Dist. 1983),
affd 107
Ill.2d
33
(1985) (standard
for
determining
prejudgment
is
whether
a disinterested
observer
might conclude
that
decisionmaker
had in
some
measure
adjudged
the facts
and the
law before
hearing the
case) (emphasis
supplied);
Residents
Against
A
Polluted
Environment
v.
Illinois
Pollution
Control
Board,
293
Ill.App.3d
219,
687
N.E.2d
552, 555
(3d
Dist.
1997)
(allowing
inference
of
bias as an
appropriate
standard
to
evaluate
fundamental
fairness);
see also
In Re High
Fructose
Corn
Syrup
Antitrust
Litigation,
295
F.3d
651,
654-55
(7th Cir. 2002)
(in
action
alleging
illegal
agreement
to
fix prices,
plaintiff
may present
circumstantial
or indirect
evidence
from which
existence of
such
agreement
may
be
inferred).
The
evidence
supporting
the
conclusion
that
the
City Council
members
favorably
prejudged
the siting
request
is
substantial:
1.
The
February
19
meeting is
directed
by
Mayor Green,
who serves
as both
presiding
officer and
advocate
by telling
the
City
Council
that
“we’re
not just
proposing
a
landfill,
“but
“(w)e’re
proposing
a
landfill
and
an industrial
park.” City
Council
2/19/02
Tr.
at 26.
This
Document
is
Printed
on
Recycled
Paper.
5
2.
T&C presents
its siting
request
at
the
February
19
meeting through
(a)
its
principal,
Mr.
Volini,
(b)
its
attorney, Mr.
Mueller,
(c) two
expert witnesses
and
(d) a
document
package
and related
exhibits.
City
Council
2/19/02
Tr. at
6-28.
3.
T&C answered
questions
from
City
Council
members
at the
February
19 meeting,
including
a
question
asked
by
Alderman
Williams
and answered
by
Mayor
Green.
City
Council
2/19/02
Tr. at 26.
4.
T&C presented,
explained
and
answered
questions
about
its
siting
request
at the
February
19 meeting
without
participation
or objection
from the
public or
interested
parties.
5.
The
City
Council,
in its August
19 decision,
chose
to agree with
Mr.
Moose,
a
civil engineer,
who
spoke
at the
February
19 meeting
and
has no training
or
credentials
as
a hydrogeologist,
that
the Silurian
dolomite
under
the
proposed
site is
an aquitard,
when
the
overwhelming
evidence presented
at
the hearing,
including
scientific
reports,
well
water
data and
statements
from four
hydrogeologists,
conclusively
established
that
the
Silurian
dolomite
under
the proposed
site is
an
aquifer.
6.
The
City
Council
chose
to
accept Mr.
Moose!s
stated
reliance
on
selected
pages
from
a Significant
Modification
Permit
Application,
filed
by
WMII
with the
Illinois
Environmental
Protection
Agency
in 1994 concerning
the existing
Kankakee
Landfill,
as
support
for
his
characterization
of
the
Silurian
dolomite
as an
aquitard, when,
in fact,
This Document
is
Printed
on Recycled
Paper.
6
those
pages
did
not characterize
the bedrock
as an aquitard
but, rather,
included
conservative
assumptions for
the purpose
of
running
the groundwater
model
for
the
existing
landfill
as required
by
the IEPA.
See
infra
p.
9.
7.
The
City
Council
agreed
that
the T&C
proposal
was
consistent
with
the
Kankakee
County
Solid
Waste
Management
Plan,
as
amended,
when
the plain
arid unequivocal
language
in the
County
Plan clearly
provides
for a single
landfill
in the
County
and
that
this
landfill
is the
expanded
Kankakee
Landfill.
Only
in
the event
the
expansion
of the
Kankakee
Landfill
is
not
approved
could
the
T&C proposal
possibly
be
deemed
consistent
with
the County
Plan.
The
expansion
of
the Kankakee
Landfill
has
not,
to
date,
been
disapproved.
8.
The
City
Council
voted
unanimously
(13-0,
with one
abstention)
to
approve
T&C’s
siting
request.
Based
upon these
facts
and
the undisputed
actions
of Mayor
Green
and
the
City
Council,
a disinterested
observer
may
conclude
the
members
of the
City
Council
had
prejudged
the T&C
siting
request
in advance
of
hearing
it. E &
E
Hauling,
451
N.E.2d
at 565.
The
February
19
presentation
was
the
means
and
opportunity
for the
City
Council
to
prejudge
the
request.
The
City’s
August
19 written
decision
confirms
the fact
of
the
Council’s
prejudgment.
T&C
also asserts
that
elected
officials
are
presumed
to act
objectively.
Applicant’s
Brief
at 15-16.
This
is
true,
as is
T&C’s
statement
that
a minimal
showing
of
bias must
be made
to
warrant
a remand.
Applicant’s
Brief
at
15-16.
The
presumption
may
be overcome
by
showing
This
Document
is Printed
on Recycled
Paper.
7
that
the
proceedings
contained
an unacceptable risk
of bias.
Goodwin
v.
McHenry
County
Sheriffs
Office,
306
Il1.App.3d
251,
713
N.E.2d
818, 823
(2d
Dist.
1999).
Here,
the risk
of
prejudgment
permeated
the proceedings.
The
February
19
meeting
set
the
tone
for the
official
siting process
commencing
with
the
filing
of
the
siting
application
on
March
13,
2002.
Indeed,
the circumstances
were
propitious
for favorable
review
and decision.
The
application
was presented
to
and
considered
by
the City
Council
on February
19 under
the
mayor’s
direction
and
without
objection.
The
mayor
conveyed
his
approval
of
the
request
by
aligning
himself
with
T&C
(“we’re
proposing
a
landfill”).
The
City
Council
was
not advised
against
prejudgment
by the
mayor.
The
fact
of prejudgment
became
clear
with
the
City’s
granting
of siting
approval
on
August
19.
In the
face
of
compelling
and
overwhelming
evidence
to
the
contrary,
the
City
Council
unanimously
found
in
T&C’s
favor
on
criteria
two and
eight.
Based
upon the
substantial
evidence
described
above,
it is appropriate
to conclude
that the
City’s
August
19
decision
was
effectively
made
February
19.
Such
prejudgment is fundamentally
unfair
and the
siting
approval
should
be reversed.
B.
The Public
Was
Denied
the
Right
to Attend
and
Participate
in
the Public
Hearing.
T&C
admits
at least
fifty (50)
people
did
not
get into
the
hearing
room
on
the
first
night
of the
hearings,
June
17. Applicant
Br. at
24.
These
individuals
did
not
hear
any announcement
that
people
could
sign
up
to
participate.
IPCB
11/4/02
Tr.
at 80,
107.
Many left
because
they
could
not
get
into
the
hearing
room.
IPCB
11/4/02
Tr. at
66,
108.
Most
did
not return
because
of
their
experience
that
evening.
IPCB
Tr.
at 66,
108.
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Document
is Printed
on Recycled
Paper.
8
The
public hearing is
the most critical
stage
of the
site
approval
process.
American
Bottom
Conservancy
v. Village
of Fairmont
City,
No.
PCB 00-200, slip
op. at 6
(October 19,
2000).
The public
hearing
must
include
the
right
to appear
and
the
opportunity to
be heard.
Daly v.
Pollution Control Board,
264 Ill.App.3d
968, 970,
637
N.E.2d
1153, 1155
(1st Dist.
1994).
At least
50 people
were deprived
of their right
to appear and
be
heard on
June
17. Many
left, never
to return,
because
they
were denied access
to the initial
public
hearing.
This
denial
was
fundamentally
unfair,
and
requires
reversal
of the
siting approval
C.
The
City’s
Finding
That T&C Satisfied
Criterion
Two Is
Against
the
Manifest
Weight
of the
Evidence.
T&C
argues that
WMII’s
assertion
that
T&C inaccurately
characterized
the Silurian
dolomite ‘displays
a profound
misunderstanding
of the overwhelming
evidence
that
the
specific
geologic characteristics
of the
site are well understood...”
Applicant’s
Brief
at 26.
T&C’s
argument is
fatuous. Not only
does T&C ignore
all of
the scientific
information,
water
well
data
(including data contained
in its own
siting request)
and the
statements of four
hydrogeologists
regarding the proper
characterization
of
the
bedrock,
it also
purports to rely on
information
contained
in selected
pages
of a Significant
Modification
Permit
Application prepared
in 1994
by
WMII (“Significant Modification”)
for the existing
Kankakee
Landfill.
Such reliance
is
misplaced, because the
selected
portions
of
the
Significant
Modification
were not
intended
to
characterize
the dimensions of the
geologic units
at the
Kankakee
Landfill
site.
As stated
by
its authors,
the Significant
Modification
clearly characterizes
the
bedrock
as
an aquifer,
not an aquitard.
The assumption
that
the
aquifer was
10 feet thick was made
for
This
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on Recycled
Paper.
9
groundwater
modeling
purposes.
JEPA
guidance
states
that 10
feet should
be assumed.
This
input
value
is
conservative
and
represents
a
condition
that
will
most
likely
cause failure
of
the
model.
Public
Comment,
Letter
dated
July
25, 2002
by
Joan
Underwood,
Hydrogeologist.
In
fact, Ms.
Underwood
stated
that
the
Silurian
Dolomite
is
an aquifer
under
the T&C
site.
Mr.
Moose’s
testimony
cannot
overcome,
much
less refute,
the exhaustive
scientific
data
and
evidence
that contradicts
it.
The
City’s favorable
finding on
Criterion
Two,
based
upon this
erroneous
conclusion,
is
clearly, plainly
and
obviously
wrong
and, therefore,
is
against
the
manifest
weight
of
the
evidence.
ft
The
City’s
Finding
that the T&C
Proposal
Was
Consistent
With
the
Kankakee
County Solid
Waste
Management
Plan
Is
Against
the
Manifest
Weight
of the
Evidence.
T&C
cites to
the testimony
of Dr.
Allen Shoenberger
in
support
of its
contention
that
Criterion
Eight
was
satisfied.
Applicant
Brief at 35-37.
However,
the Hearing
Officer
struck
most of
Dr. Shoenberger’s
testimony
regarding
the
validity of
the County
and
City Plans
and
the
City’s
authority
to
exercise
siting
jurisdiction,
and “precious
little
remained.”
Applicant
Brief
at
25.
T&C
then
attempts
to rely
on the
testimony
of
Mr. Moose
in response
to a
question
on
plan
consistency
from
the City staff.
Mr. Moose
was
not disclosed
or identified
as
a
witness
on
plan
consistency,
nor
was he qualified
to given
an opinion
on
the issue.
Nonetheless,
the
Hearing
Officer
denied
a
motion
to strike and
allowed
the testimony
to
stand,
notwithstanding
the
inability
of any
participant
or
member
of
the
public
to cross
examine
Mr. Moose
because
the
This Document
is
Printed
on Recycled
Paper.
10
answer
was
provided
in response
to
a question
from City
staff.
Based
upon
his lack
of
qualifications
and
the
procedural
unfairness,
Mr.
Moose’s
testimony
is
entitled
to no
weight
and
should
be
disregarded.
The plain
language
of the
County
Plan provides
for one
landfill
in
Kankakee
County.
The expansion
of the
existing
facility
is
the preferred
alternative.
Only
if
and
when
the existing
landfill
is denied
authority
to
expand,
may
it be
possible
to find
that
the T&C
proposal
is
consistent
with
the
County
Plan.
The
mere
fact
that the
siting
request
to expand
the
Kankakee
Landfill
was
not approved
at the
time
the
City
considered
the
T&C
request
is not legally
or
logically
sufficient
to
justify
a
finding
of
plan
consistency
for
the
latter.
At
a minimum,
a
final
disapproval
of
the Kankakee
Landfill
expansion
would
have
been
required
before
any finding
of
consistency
with
the
County
Plan
could
have
been
made.
WMII
agrees
with Petitioner
County
of Kankakee
that
the
proper
standard
of
review
of
the
City’s
finding
on Criterion
Eight
is
de
novo.
Based
upon
the
plain
meaning
of the
County
Plan,
however,
WMII
submits
that, under
either
standard
of
review,
the City’s
finding
on
Criterion
Eight
is
clearly
erroneous
and
against
the manifest
weight
of the
evidence.
T&C
next argues
that the
County
of Kankakee
cannot
preclude
the
City from
exercising
its
siting
jurisdiction,
that
the
Illinois
Constitution
and
statutes
protect
the
City’s siting
authority,
and
that the
County
of
Kankakee’s
amendments
to its
Plan are
invalid.
Applicant
Brief at
38-43.
These
arguments
require
this
Board
to
construe
and
apply the
Illinois
Constitution
and
the cited
statutes
to the
Illinois
Environmental
Protection
Act and
the
Kankakee
County
Solid
Waste
Management
Plan. The
Board
lacks
this authority.
Land
and Lakes
Company
v.
This
Document
is Printed
on Recycled
Paper.
11
Randolph
County
Board
of
Commissioners,
No.
PCB
99-69,
slip
op. at
32 (September
21,
2000).
The
Board may
review
the
City
decision
and
whether the
T&C proposal
is consistent
with
the
County
Plan
as
written
pursuant
to
Section 40.1(a)
of the
Act. 415
ILCS 5/40.1
(2000).
However,
the
Board
is not
authorized
to review
or determine
the
validity
of the
County
Plan.
Land
and
Lakes
Company,
slip
op.
at
32.
CONCLUSION
The
City of
Kankakee’s
August 19,
2002
grant
of local
siting
approval
should
be reversed
on the grounds
that
the
local siting
process
was fundamentally
unfair
and
that the City’s
findings
on Criteria
Two and
Eight
are against
the
manifest
weight
of the
evidence.
Respectfully
submitted,
WASTE
MAAGEMENTPF
ILLINOIS,
INC.
/
By:
L_
thne of
its Attbmeys
/
Donald
J. Moran
Pedersen
& Houpt
161
North Clark
Street
Suite 3100
Chicago,
IL
60601
Telephone:
(312)
641-6888
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12