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BEFORE
THE ILL
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BOARD
MAY
122003
WASTE MANAGEMENT
OF ILLINOIS,
INC.
STATE
OF
ILLINOIS
Pollution
Control
Board
Petitioner,
No. PCB
03-104
vs.
(Pollution
Control
Facility Siting
Application)
COUNTY BOARD
OF KANE COUNTY,
ILLINOIS,
Respondent.
NOTICE
OF FILING
TO:
See Attached
Service List
PLEASE
TAKE NOTICE that
on May 12, 2003,
we filed with
the Illinois Pollution
Control
Board, the
attached Respondent
County Board
of Kane County,
Illinois’
Response
Brief
in
Support
of its
December
10, 2002, Siting
Decision and Opposing
Petitioner’s
Contest
of that Decision, a copy
of which is attached
hereto
and
served upon you.
RESPONDENT,
COUNTY
BOARD OF
KANE
COUNTY, ILLINOIS
Jennifer
J. Sackett Pohlenz
Querrey
& Harrow, Ltd.
175
West Jackson Boulevard
Suite
1600
Chicago,
Illinois
60604
(312) 540-7000
Attorney Registration
No.
6225990
Document #: 825897
Printed on Recycled
Paper
PROOF
OF
SERVICE
Alesia Mansfield, a non-attorney, on oath states that she served the foregoing
Notice of
Filing along the document(s) set
forth
in said Notice, on the following individuals in
the
manner(s) stated below this
12
th
day of May, 2003, except as otherwise stated below.
Via U.S.
Mail
Mr. Michael W.
McCoy
Chairman - Kane
County
Board
Kane County
Government Center
719 S. Batavia Avenue, Building A
Geneva, IL 60134
Via Facsimile & U.S.
Mail
Donald J.
Moran
Pedersen & Houpt
161 North Clark
Street
Suite 3100
Chicago, IL 60601
Attorney for Petitioner
Via Hand
Delivery
Bradley P.
Halloran
Illinois Pollution Control
Board
James
R. Thompson Center, Ste. 11-500
100 W.
Randolph Street
Chicago,
IL 60601
Hearing Officer
Via
U.S.
Mail
John A. Cunningham
Kane
County Clerk
Kane
County
Government
Center
719
S. Batavia Avenue, Building A
Geneva, IL 60134
Via
U.S.
Mail
Carol Hecht
754 E. Middle Street
South Elgin, IL 61077
Interested
Party
Via
U.S.
Mail
Derke J. Price
Ancel, Glink, Diamond,
Bush, DiGianni &
Rolek, P.C.
140 South Dearborn Street
Sixth Floor
Chicago, IL
60603
Representing Village of
South
Elgin
i2
Alesia Mansfield
(}
Printed
on Recycled Paper
BEFORE THE
WASTE
MANAGEMENT OF ILLINOIS, iNC.
V.
Petitioner,
COUNTY
BOARD OF KANE COUNTY,
ILLiNOIS,
BO1’$IWj
2
STATE
OF
ILLINoIS
Po1!tj
0
Control
Board
(Pollution Control Facility
Siting
RESPONDENT COUNTY BOARD OF KANE COUNTY,
ILLINOIS’
RESPONSE
BRIEF IN SUPPORT
OF
IT’S DECEMBER
10,
2002,
SITING DECISION AND
OPPOSING PETITIONER’S
CONTEST OF THAT DECISION
Jennifer J. Sackett
Pohlenz
QUERREY & HARROW, LTD.
175 W.
Jackson, Suite 1600
Chicago, Illinois 60604
(312) 540-7000
Attorneys
for Respondent,
County
Board of Kane County, Illinois
No. PCBO3-104
Application)
Respondent.
Illinois Attorney
No. 6225990
TABLE OF CONTENTS
INTRODUCTION
1
IL STANDARD
OF REVIEW
3
III. ARGUMENT
4
A.
The Kane County
Board’s Decision and the Process Resulting in that
Decision was
Fundamentally Fair
and
Should
be
Affirmed
4
1. WMII has no right to
respond
to the
decision of local government
prior
to that decision being finalized and approved by vote
6
2. If the IPCB determines that WMII has a right to object to or respond
to the written document prepared by a decision-maker for
deliberative
purposes, WMII waived that right when
it failed to raise the
objection
or request to respond at the time it was
presented during deliberations
10
3.
WMII’s
fundamental fairness argument amounts to no more than a
manifest weight argument cloaked under
fundamental fairness in
an
attempt
to apply a different standard of review
11
4. There
are no “inaccuracies” or “misapplications of law” or facts from
outside
the record within the four-page Walter document which warrant
a “reversal” of the
Kane County Board decision
14
(a)
The legal
standards
considered by
the Kane County Board were correct 14
(b)
Evidence referenced in the four-page Walter
document
is
accurate
16
5.
Even if the
IPCB finds in WMII’s favor concerning its allegations of
unfairness, the remedy is not “reversal” of the Kane
County Board
decision as sought by
WMII, rather it is to return the decision to the
Kane
County Board to cure any alleged unfairness and take another
vote of the Kane County Board
27
B. The
Kane County Board’s Decision is Supported
by
the Evidence in the
Record, is not against the Manifest Weight of the Evidence, and Should
be
Upheld
29
1.
The
Kane
County Board’s
decision
denying WMII’s
site
location
request
on the basis of Criterion 2 should be upheld, as that decision was not
against the manifest weight of the evidence
30
2. The Kane County Board’s decision denying WMII’s site location request
on the basis of Criterion 3 should be upheld, as that decision was not
against the manifest weight of the evidence
35
3. The Kane County
Board’s
decision denying WMII’s site location request
on
the basis of Criterion 6 should be upheld, as that decision
was not
against the manifest weight
of the evidence
38
Printed on
Recycled Paper
4. The Kane County
Board’s
decision denying WMII’s
site location
request
on the basis of
Criterion
8
should be
upheld,
as
that decision was
not
against the manifest
weight
of the evidence
44
5.
The
Kane
County
Board’s
decision denying WMII’s
site location
request
should
be upheld, regardless
of WMII’s compliance
or non-compliance
of
the local
siting ordinance
45
6.
WMII
failed to contest
two Section 39.2
Criteria found
by the Kane
County Board to have
not
been
met and, thus, WMII’s
Petition must
fail on its face
47
IV.
CONCLUSION
48
H
Printed
on Recycled Paper
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE
MANAGEMENT
OF ILLINOIS, INC.
Petitioner,
No. PCB 03-104
v.
(Pollution Control Facility Siting
Application)
COUNTY BOARD
OF KANE COUNTY,
ILLINOIS,
Respondent.
RESPONDENT COUNTY BOARD OF KANE COUNTY, ILLINOIS’
RESPONSE
BRIEF IN SUPPORT OF
IT’S
DECEMBER 10, 2002, SITING DECISION AND
OPPOSING PETITIONER’S CONTEST OF THAT DECISION
I.
INTRODUCTION
On
June 14, 2002, Petitioner Waste Management of Illinois, Inc. (WMII) filed
an
application with
Kane County, seeking site location approval of a new pollution control
facility,
namely a solid
waste transfer station. (C000001-C001159). WMII proposed to locate
the
transfer station in
unincorporated Kane County, on the same site and within the boundaries of the
existing
Woodland Landfill. (C000 145, Application Criterion
2
— Figure
2).
On
September 12, 2002, a public
informational meeting was held and, on
September 17,
19, 24, 26 and 30,
and October 1, 3, 9, and
10, a public hearing was held concerning
WMII’s
siting
application.
(C003136-C004545).
On November 19, 2002, the Kane County Board called
a
Special
Meeting to begin its discussions concerning
Wivill’s subject
siting application.
(C004546-C004639).
No vote was taken at the
November 19, 2002, meeting. Id. On December
10,
2002, the Kane
County Board, at a regularly scheduled
Board Meeting,
deliberated
and voted
on WMII’s
siting application,
determining to deny that application. (C004642, C004826-4883).
Printed On Recycled Paper
The
written decision
of the Kane County Board
is comprised of
Resolution 02-431,
the
local hearing
officer’s
findings of fact and
law, and a County Board
Member, Dan Walter’s,
four
page written
summary.
(C004826-C004883).
Contrary
to WMII’s assertion,
the local hearing
offiQer’s
findings
were
not
that the statutory criteria
were met.
(WMII Memorandum
p.
1, 4, 24).
Rather, the
local hearing
officer found that Criteria
1, 2, 3, 5, 6 and
8, were only “met”
when
subject
to the
imposition
of conditions.
(C004842,
C004846,
C004848,
C004850,
C004854,
C004855).
Interestingly,
WMII only argues
that the decision of
the County Board
was against
the manifest
weight of the evidence
on Criteria
2,
3, 6
and
8. Thus, even on
the face of WMII’s
arguments,
the decision of the
Kane
County Board
must be affirmed,
as WMII
does
not contest
the County Board’s
denial
on Criteria 1 and 5’.
WMII
appeals the
denial of its siting application
by the Kane
County Board, pursuant
to
Section
40.1(a)
of the Illinois
Environmental
Protection
Act (415 ILCS
5/40.1(a)),
on what
WMII
alleges to
be
two grounds:
fundamental fairness
and manifest weight.
However, WMII’s
fundamental fairness
argument
is nothing more than
an attempt by it to
seek a different standard
of review
and to
remove
the deference shown
by a reviewing Court
or Board to Kane
County’s
decision.
Throughout its
Memorandum,
WMII misstates facts
and references allegations
(proposed
by
WMII to be
facts)
that are
not in evidence, and
for which WMII
provides
no
citation
to the
record.
In response,
the Kane County Board
requests
certain
“facts” and allegations
be
stricken
as
detailed
in its
Motion
to Strike, filed
contemporaneously
with
this Response
Brief.
1
Evidence
concerning
WMII’ s failure to
meet Criteria 1 and
5 can be found in a written
comment prepared by
the
2
Printed on Recycled
Paper
II.
STANDARD
OF
REVIEW
There
are
two standards
of review
to
be
considered
in this
appeal.
The first,
is
the
standard
applied
to
actual fundamental
fairness
issues
raised
on appeal,
namely,
de
novo. Land
&
Lakes
Co. v.
Illinois Pollution
Control
Board,
319
Ill.App.3d
41, 48, 743
N.E.2d
188,
193-194
(
3
rd
Dist.
2000).
This
standard
is truly
not
applicable
to this
matter,
as
WMII
has
failed
to raise
a
legitimate
fundamental
fairness issue,
as further
discussed
below.
The
second standard
of review
to be
considered
by
the IPCB
is
whether
the
Kane
County
Board’s
decision
denying
WMII’
s proposed
transfer
station
was against
the
manifest
weight
of
the evidence.
McLean
County Disposal,
Inc.
v.
County of
McClean,
207
Ill.App.3d
477, 480-
481,
566
N.E.2d
26,
28-29
(
4
th
Dist.
1991).
Under
a manifest
weight
of the
evidence
review,
the
decision
of the
Kane
County
Board
should be
affirmed,
unless
the findings
and conclusions
of
the Kane
County
Board
are found
to be contrary
to
the manifest
weight
of the
evidence.
Central
Illinois
Public
Service
Co.
v. Department
of Revenue,
158 Ill.
App. 3d 763,
767,
511 N.E.2d
222, 110
Ill. Dec.
387
(
4
th
Dist.
1987). A
decision
is contrary
to the
manifest
weight
of the
evidence
only
when, after
viewing
the evidence
in
the
light
most
favorable
to the
Kane
County
Board,
the
IPCB determines
that
no rational
trier
of fact could
have
agreed
with the
Kane
County
Board’s
decision.
American
Federation
of
State, County
& Municipal
Employees
v.
Illinois
Educational
Labor
Relations
Board, 197
Ill.
App.
3d 521, 525,
554
N.E.2d
476, 143 Ill.
Dec.
541
(
4
th
Dist. 1990).
In
bringing
this appeal,
WMII,
as the Petitioner,
has
the burden
of proof. (415
ILCS
5/40.1(a)).
County
staff.
(See, C002786-002790,
C002804-002806).
3
Printed on
Recycled Paper
III.
ARGUMENT
Although the
Kane County Board
submits that
WMII’s fundamental
fairness
arguments
are without
merit; are
raised as
an
attempt to change the
standard of review
for the same subject
matter WMII
raises under the
manifest weight
of the evidence argument
and are not within
the
category or
characterization
of
procedural
due process issues
to be raised, WMII’
s arguments
are
fuiiy
responded
to,
without waiver
of these objections,
herein. WMII attempts
to attack the Kane
County
Board’s
decision
based on manifest
weight of the
evidence.
However,
based
on the
evidence contained
in this record,
it is clear that
the decision
of
the
Kane
County
Board should
be
affirmed
as it is
not against
the manifest weight
of
the evidence.
A.
THE KANE
COUNTY BOARD’S
DECISION
AND THE PROCESS
RESULTING
IN THAT
DECISION
WAS FUNDAMENTALLY
FAIR
AND
SHOULD
BE AFFIRMED
WMII makes
no argument
that
the siting process
itself was unfair.
WMII’ s unfairness
argument solely
concerns the
Kane
County Board’s
written decision
and, specifically,
the four
pages
of
it which were prepared
by
County
Board Member Dan
Walter. (C004880-C004883).
WMII
appears to argue
that the
four
page
portion of the
Kane County Board
decision prepared
by
Mr. Walter
was an extra-judicial
consideration
which
included
facts
not in
the record
or
misstated
facts,
to which
WMII
was
not given an
opportunity to respond,
thereby allegedly,
rendering the
process legislative
rather
than
adjudicatory. While
WMII does not identify
how
the four-page
portion
of the County
Board’s decision written
by
Mr. Walter
changes
the quasi
adjudicative and
quasi-legislative
function
and character
of the local siting
process,
WMs
contentions
are
focused on
its claimed
right to respond and
alleged inaccuracies
or out-of-record
evidence,
all of
which
are responded
to, below.
4
Printed on Recycled
Paper
First,
Mr.
Walter is a member of the quasi-adjudicatory and quasi-legislative
body,
namely the Kane
County Board, and the document
he prepared represents
and
is
a product of his
deliberations and is
not evidence. It is simply his summary and his conclusions and opinions
about the
evidence,
which he has a right to present to the other members of the
Kane County
Board. WMII
has no
right
to
inject itself into or respond to the thought
process
or written
decision of a
decision-maker in a quasi-adjudicatory process, such as a local
government’s
decision on site
location. WMII’s
“right
to respond” to a decision arises during
its statutory
to appeal the
decision of the local government. There is no right to respond prior to the
Kane
County Board’s
decision being rendered.
Second, even if
the Illinois Pollution Control Board (IPCB)
were
to characterize the four-
page Walter
document
as “evidence” to which WMII had a right to respond, WMII waived
any
such right
when
it failed to
object
to
the utilization of the four page document
prepared
by
County
Board Member Dan Walter in the Kane County
Board’s written
decision, particularly
when WMII
spoke during the deliberations of the December 10, 2002, Kane County Board
Meeting.
Third, the IPCB
should reject WMII’s attempt to have arguments
concerning the
accuracy and basis
for the Kane County Board’s decision reviewed under a fundamental fairness,
de novo, standard of
review, as it is only appropriately reviewed based on the manifest weight
of
the
evidence.
Fourth, even if the IPCB reviews Dan
Walter’s four-page memorandum
on a de novo
basis, there are no
inaccuracies of fact or misapplications of law which support a “reversal”
as
requested by WMII.
5
Printed on Recycled Paper
Fifth,
even if the IPCB found unfairness in the four-page Walter
document,
the remedy
would be to send
the decision back to the Kane County Board
to correct whatever alleged
unfairness
occurred
and have the Kane County Board vote
again concerning WMII’s
siting
application;
WMII is not entitled to a “reversal” of the decision
as
it
seeks.
1.
WMII has no right to respond to the decision
of a local government
prior to
that
decision
being finalized and approved by vote
WJ\411 argues,
without citation
to a
single
applicable or analogous authority
for
support,
that the Kane
County Board’s decision was fundamentally unfair, because
WMII was not given
an opportunity
to respond to that portion of the Kane County Board’s written
decision comprised
of the four-page
document prepared
by
Dan Walter. (WMII
Memorandum
p,
24).
WMII’s
argument
hopes to persuade the IPCB to declare that a party before a quasi-legislative and
quasi-
adjudicatory2,
or administrative body has a procedural due process right to review
and apparently
comment on the
written decision
of
that
body,
prior
to
it
being voted on and becoming final.
In
other words, WMII is essentially asserting that it has the right to review and comment
on the
fact-finder’s or
decision-maker’s decision, prior to the fact-finder
or decision-maker finalizing
that decision.
WMIIs argument is completely without merit.
The
concept of fundamental fairness during the local level siting process and
hearings is
based on procedural due
process. In the case of the local siting
procedure, the authority for the
IPCB to
review complaints related to fundamental fairness is derived from Section 40.1 of
the
Illinois
Environmental Protection Act which, specifically, provides that the IPCB review the
2
WMII
incorrectly references the local siting process as
only quasi-adjudicative
(See, Memorandum
p.
2),
when
it is a
quasi-legislative and
quasi-adjudicative process: “A local siting authority’s role in the siting
approval
process
is
lth
quasi-legislative and quasi-adjudicative.”
Land
and
Lakes
Company v. Illinois Pollution Control
6
Printed on Recycled Paper
“fundamental
fairness
of the
procedures used”
by,
in
this case, the Kane
County Board, “in
reaching its
decision.” (415 ILCS
40.1(a))(emphasis added). WMII is not complaining
about
the procedures
and, in fact, other
than its meritless claim,
that it has a right to comment on
a
written decision
before it is issued by a local decision-maker, its sole focus is its complaint
of
inaccuracy of
law and fact within the written decision of the Kane County Board, which
complaints
concern
manifest weight rather than fairness.
Illinois
Courts have related the procedural due process requirements of a local
site
location
proceeding
to that of an administrative hearing. See, City of Rockford v.
The
County
of
Winnebago,
186
Ill.App.3d
303,
311,
542 N.E.2d 423, 429 (2’’ Dist. 1989),
quoting, Waste
Management
of Illinois,
Inc.
v.
Pollution Control Board, 175 Ill.App.3d 1021,
1036-1037, 530
N.E.2d 682,
693-694 (2’ Dist. 1988). The basic premise of procedural due process is that
“the
procedures be
tailored, in light of the decision to be
made, to
the
capacities
and circumstance
of
those who are
to
be heard, to insure that they are given a
meaningful
opportunity to present their
case.” Petersen,
et at. v. Chicago Plan Commission of the
City
of
Chicago,
et at., 302 Ill.App.
3d
461, 466, 707
N.E.2d 150,
154
(1st
Dist. 1998),
quoting, Telcser
v.
Holzman,
31 Ill.2d 332, 339,
201 N.E.2d 370
(S.Ct. 1964). Thus, having a right to comment on the written decision, or even
the oral
deliberation, of a County Board in its role as a local siting decision-maker falls outside
the concept
and law concerning procedural fundamental fairness.
Further, any
alleged right to comment on written or oral deliberations or decisions
of a
local siting
decision-maker is illogical and inconsistent
with
the general concept
of
administrative
and adjudicative proceedings.
Additionally,
it is inconsistent with
the specific
Board. et al.,
319 I11.App.3d 41,
47, 743 N.E.2d
188,
193
(3
Dist. 2000)(citation omitted; emphasis added).
7
Printed
on Recycled
Paper
legislative
provisions
relating
to a siting proceeding
and not otherwise
authorized by
Section
39.2- of the
Illinois
Environmental
Protection
Act. For
example, although
Section 3 9.2(c)
provides
that the
local
siting
authority can consider
any written comment
filed within 30-days
of
the last day
of public
hearing, there is no
right of the siting
applicant or other participant
to
respond
to
those written
comments
and, obviously,
the
written comments
cannot
be cross-
examined.
(415 ILCS
39.2(c);
see also, Southwest
Energy
Corporation
v. The Illinois Pollution
Control
Board, et
al., 275 Ill.App.3d
84, 93, 655 N.E.2d
304,
310
(
4
th
Dist. 1995).
If it is not
fundamentally
unfair
to be precluded
from
responding
to a written
comment, why
would it be
fundamentally
unfair
to have
no right to respond to
the written decision of
the siting authority?
WMII’s claim of a right
to respond
makes less sense when
it is considered in
light of
the
fact that
“[d]ue process
of law does
not encompass the
right to appeal an administrative
decision,
and affording
that right
is the
exclusive prerogative
of
the
legislature.”
McHenry
County
Landfill, Inc.
v. The
Environmental
Protection
Agency, et al., 154 Ill.App.3d
89, 94, 506
N.E.2d
372,
376
(2’ Dist.
1987). If an applicant
would not
have the right to
appeal
the
decision
of a
local siting
authority,
absent
such right being embodied
in
statute,
it
follows
that there is no basis
to assert
that a right
exists to
comment
on a local siting
authority’s written
or oral deliberations
or
decisions,
absent
such
right
being enumerated
in statute.
Section
39.2 of the
Illinois
Environmental
Protection
Act does not provide
WMII with the right
to comment on
a local
decision-maker’s
deliberations and/or
written decision, other
than to take an appeal.
WMII
contends
that Southwest
Energy
Corporation,
supra, and
City of Rockford
v.
Winnebago
County, PCB 87-92
(November 19,
1987), legally
support
its proposition
that
the
four-page
document
prepared
by
County
Board Member
Walter was
fundamentally
unfair,
8
Printed
on Recycled Paper
because WMII
had
no opportunity to respond. However, neither of these cases ruled
in that
manner. In fact,
Southwest Energy Corporation, was not
even an appeal initiated
by an
applicant, rather
it was initiated by a citizen’s group that correctly asserted that
a trip paid for by
the applicant to
which the public was not invited and contacts between the
hearing officer and
the applicant were
fundamentally unfair. Southwest Energy
Corporation,
275 Ill.App.3d
at 84,
96-97, 655
N.E.2d at
304, 312. Likewise, the IPCB decision
in City of Rockford, (prior
to the
case
being
remanded and then appealed to the IPCB and Appellate
Court), concerns bias
and
ex
parte contacts,
and an admission by county board members that they considered
evidence outside
the record in
making their decision.
In this
case, WMII has made no allegation concerning bias or ex parte
communications
rendering the process
fundamentally unfair, nor is there any evidence in
the record that
County
Board
Members considered evidence outside the record. Additionally, City of Rockford
which
primarily
concerned bias and ex parte communications from a citizen or citizen
group, was
decided
prior to the amendment to Section 39.2, providing: “The fact that a member
of the
county board .
.
.
had publicly expressed an opinion on an issue related
to a site review
proceeding shall not
preclude the member from taking part in the proceeding
and voting on the
issue.” Thus,
it is not clear that if faced with a similar fact scenario post-amendment
(a fact
scenario which is
not analogous to this matter), whether the IPCB would hold
consistently
with
City
of
Rockford. Therefore, neither Southwest Energy Corporation nor City of Rockford
is
applicable to this case, and neither case
is applicable to WMII’s
proposition that an applicant has
a
right to respond to
a decision-maker’s deliberations and/or written decision, prior
to that
decision being
finalized and voted on (other than the applicant’s right to appeal, pursuant
to
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Section 40.1 of
the Act).
Therefore,
WMII’ s assertion that the decision (rather than the procedure)
of the Kane
County Board
was fundamentally unfair, based on WMII’ s inability to comment on a four-page
document prepared by
County Board Member Dan Walter as a part of deliberations,
must be
denied, as no
such right exists.
2.
If
the IPCB determines that WMII has a right to object to or respond
to the
written document prepared by a decision-maker for deliberative
purposes,
WMII
waived that right when it failed to raise the objection or
request to
respond at the time it was
presented during
deliberations
If
the IPCB determines that
WMII had a right to comment on
or respond to that portion
of the Kane
County Board’s written siting decision prepared by County Board Member Dan
Walter,
the
IPCB should find WMII waived that right. WMII was in attendance at the December
10,
2002, Kane
County Board Meeting at which the Kane County Board denied WMII’s
siting
application and approved
a resolution and written decision supporting that
denial. (C003 126).
Additionally, Dale
Hoekstra, a representative of WMII and one of its witnesses during the
course
of the public
hearings, spoke to the Kane County Board concerning its pending decision
and
deliberations.
Id.
On the
issue of waiver, the Illinois Appellate
Court, quoting the Illinois
Supreme Court
has stated:
Generally, of course, a failure to
object at the original proceeding
constitutes a waiver of the right to raise the issue on appeal.
People v. Carlson, 79
Ill.
2d 564, 576-77, 404 N.E.2d 233, 238-39
(1980). ‘A
claim
of
disqualifying bias or partiality on the part of a
member of the judiciary
or an administrative agency must be
asserted promptly after knowledge of the
alleged disqualification.’
Duffield v. Charleston Area Medical
Center, Inc.,
503
F.2d 512,
515
(
4
th
Dist. 1974). The basis
for this can readily be seen. To
allow a party to first seek a ruling in a
matter and,
upon
obtaining
10
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an
unfavorable one, permit him to assert a claim of bias would
be
improper. Fairview
Area Citizens
Taskforce v. The Pollution
Control
Board. et al., 198
Iii.
App. 3d
541, 546,
555 N.E.2d 1178,
1181
(3rdDj
5t
1990).
Although
WMII does not allege
bias of County Board
Member Dan Walter, its argument
should be
considered
waived in the same manner as referenced above, since the same
reasoning
applies. WMII
was present at
the Kane County Board’s December
10,
2002,
deliberations and
decision on
WMII’s siting
application;
WMII heard County Board
Member Walter
read
substantial
portions of his four-page written document which was ultimately incorporated as
part
of the
written decision of the Kane
County
Board; WMII actually
spoke to and addressed the
Kane
County Board
during the December 10, 2002 meeting and prior to the Kane
County Board
voting
on
Resolution
02-431,
and
made no objection; WMII was present when
the Kane County
Board
adopted Resolution
02-431, and made no objection; and WMII does not assert
that it had
no
knowledge of
the four-page Walter document, such that it was unable to object to it.
(C003
126; Petitioner’s
Hearing Exh. 1, Respondent’s Supplemental Response to Petitioner’s
Request to Admit No.
4).
Therefore, even
if the IPCB determines that WMII has a right to object or respond to the
written
document prepared by
a decision-maker for deliberative purposes, the IPCB should find
WMII
waived the right to
respond.
3.
WMII’s
fundamental fairness argument amounts to no more than a manifest
weight argument cloaked
under fundamental fairness in an attempt
to apply
a
different standard of review
Other
than its alleged right to
comment on or respond to the deliberative process of the
Kane
County Board
and, specifically, to that portion of Resolution
02-431 (i.e., the
written
11
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decision of
the Kane
County Board) prepared
by
County Board
Member
Walter,
Wivill
contends
that the Kane County
Board’s decision was unfair, due to alleged factual and legal
inaccuracies
in Mr.
Walter’s
four-page document. As an initial matter,
WMII’s
mischaracterization
of
County Board
Member Walter’s four-page document, Hearing Officer Kinnally’s
report,
Resolution
02-431, and
the testimony at the public hearings is,
unfortunately, prevalent
throughout its
Memorandum. However,
without addressing
the specifics of allegations by WMII
of
misstatement of fact or misapplication of law, neither of these allegations relates
to
fundamental fairness
and, instead, relate to whether the decision by the Kane County Board
is
against the manifest
weight of the evidence (which it is not).
In
fact, of those cases
cited
by
WMII in support of the proposition
where a local
government relies on erroneous facts
or conclusions, the applicant’s
right
to a fundamentally fair
hearing has been
denied, none are analogous or applicable to WMII’s
theory of fundamental
unfairness
in this case. Besides the Southwest Energy Corporation, supra, and 1987
IPCB
decision in City of
Rockford, supra, WMII incorrectly cites two Land and Lakes
Co. decisions as
supporting authority. Land
and Lakes Company v. Illinois Pollution Control Board, et
al., 319
Ill.App.3d 31,
743 N.E.2d 188 (3’’ Dist. 2000) and Land and Lakes Company, et al. v. Illinois
Pollution Control
Board, et al., 245 Ill.App.3d 631, 616 N.E.2d 349
(
3
rd
Dist. 1993).
In the 2000
Land and Lakes
Co.
decision, the Court held that a report prepared
by the
local government’s
staff in conjunction with WMII (who was the applicant in that case) and
submitted
after the close of public comment
did not render the proceedings unfair.
WMII
misstates
and mischaracterizes the
holding of this case (Memorandum
p.
7), which had
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absolutely no bearing
on whether the applicant’s right to a fair hearing
had been
violated.3This
case is not an
applicable authority for the holding WMII seeks. Likewise, the
1993 Land and
Lakes Co. decision
is inapplicable.
In the 1993 Land
and Lakes
Co.
decision, the
Appellate Court found that the
applicant
was
not “given a
full and complete opportunity to
present evidence in support
of their
application,” given that
the local government
made its decision based on the inability
of the
applicant to meet
Criterion 1 (need), which relied on evidence
presented at the public
hearing by
a
participant, (Will County’ s),
incorrectly asserted
availability of Wheatland Landfill.
The Court
held that the IPCB
should have remanded for
a
new
hearing
as a result of Will
County’s
gamesmanship and
misrepresentations during the first public
hearings, as, at the time
of the
public hearings,
Will County knew that Wheatland Landfill would
not, necessarily, be available,
due to
the fact that it had filed an injunction action against it. The incorrect fact at issue in
Land
and Lakes Co.,
was pivotal to the local
government’s
decision on siting, as the local
government
only
denied on
Criterion 1. Further, the gamesmanship of Will County
played a crucial role in
the Court’s
determination.
Land and Lakes Co., 245 Ill.App.3d at 643.
Unlike the inaccuracy
asserted in Land and Lakes
Co., no alleged inaccuracy of fact
or
misapplication
of law asserted by WMII is pivotal to the Criteria on which its application
was
denied.
Further, WMII
neither alleges, nor
does
the record
show any misrepresentations
or
inaccuracies at the public hearings, like those in Land and Lakes Co. which was a critical
WMII ironically asserts that the
2000 Land and Lakes
Co.
decision (which concerned a report that WMII
helped
prepare) stands for the proposition
that “where a local government relies upon inaccurate facts or erroneous
conclusions in
denying a siting request, the applicant’s right to a fundamentally fair hearing has been violated.”
(Memorandum
p.
7).
Instead, this referenced portion of
this case actually states “we cannot conclude
that the
County Board failed to
confine itself to the record developed during the public hearing and public comment period”
based on a
couple of vague references in the Olsen report to “other documents.” Land and Lakes, 319 Ill.App.3d at
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feature of the Court’s
holding in that case.
Therefore, the
IPCB
should
deny WMII’s
claims of fundamental unfairness
and affirm
the December
10, 2002, decision of the Kane County Board.
4.
There are no “inaccuracies” or “misapplications
of law” or facts
from
outside
the
record within the
four-page Walter document which
warrant a
“reversal” of the Kane County Board decision
If the
IPCB agrees
with
WMII’ s
fundamental
fairness argument, it results in the
Kane
County Board’s
decision being reviewed de novo rather than pursuant
to the manifest weight
of
the evidence
standard. Without waiving its objection to such a holding, even under
a de novo
review,
WMII’s alleged inaccuracies of fact and misapplication of law fail to require
the
“reversal” of the
Kane
County Board’s decision. Further, as discussed below,
a reversal is not the
proper remedy
under
a fundamental fairness argument.
WMII
agues
the Kane County Board applied the wrong legal standard to,
and considered
inaccurate facts
concerning Criteria 2, 3, 6 and 8. WMII is incorrect on both counts
and, in fact,
misrepresents
the appropriate legal standards in its own Memorandum.
(a)
The legal
standards considered by the Kane County Board were
correct
Notwithstanding
the fact that the local Hearing Officer educated and informed the
Kane
County Board
orally
and in writing that WMII had the burden of proving each of the statutory
criteria,
as written;
WivilI wants the IPCB to rely on WMII’s paraphrased and out-of-context
reiteration
of portions of that portion of
Resolution 02-431 comprised of County
Board
Member
Dan Walter’s
four-page document. (C004880-004883).
In actuality,
WMII either fails to
reference a legal
standard or incorrectly cites the one used by the Kane County Board in
51,
743 N.E.2d at 196.
14
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presenting this
argument.
With
respect to Criteria
2 and 3,
WIV11I
alleges that untrue
or irrelevant facts
(which the
Kane
County
Board
denies WMII correctly
references
or repeats in its Memorandum)
were
referenced
in County
Board Member
Walter’s
four-page document concerning
WMII’
s
failure
to
meet Criterion
2 (Memorandum
pp.
8-10). However,
WMII fails to
allege any misapplication
of
a
“legal
standard,” as
respects this Criterion,
thus, its argument
should
be denied.
4
As respects
Criterion
6,
WMII
alleges the
four-page Walter document
misapplies
standards of “adequacy”
for
one of
“minimization,”
since the Walter
document
makes
reference to all existing
routes
having been
shown to be inadequate
by
expert
testimony. (Memorandum
p.
11). WMII
is
splitting
hairs
in an
effort
to create an
inaccuracy where one
does
not exist.
The
four-page
Walter document
correctly
references
Criterion
6 as “require[ing]
the
applicant
to
prove
that they had
minimized impact
of existing traffic flows.”
(C004880). After
a
lengthy
recitation
of
evidence
presented, including
evidence
with
respect to each possible
route
for transfer
trailers that WMII
could
not
meet Criterion 6, the
document states “[a]ll
existing
routs
have
been
shown
to be inadequate
by
expert testimony.”
There
is no
basis for WMII’s
assertion
based on this
phrase
that
the Kane County Board
considered
“adequacy” rather
than
“minimization.”
In fact,
taken in
context
with the entire
Criterion 6 discussion
in the Walter
document,
the
“adequacy”
references
WMII’ s
inability
to meet the Criterion.
Therefore, WMII’s
“legal
standard”
argument
with
respect to
Criterion 6 should be
denied.
‘
Ironically,
WMII
misstates
the legal standard as
respects Criterion
2 in its
Memorandum
(p.
8),
wherein
it
alleges
Industrial
Fuels & Resources
v.
Pollution
Control Board, 227
Ill.App.3d,
592
N.E.2d 148
(1St
Dist. 1992)
stands for
the proposition
that Criterion 2 requires
a demonstration
that the “design
or
operation of
the proposed
facility
does not
pose
an
unacceptable
risk
to the public
health and safety.”
This is not the holding
of Industrial
and it
fails to
reference “location”
which is an
integral and specifically
included
aspect
of Criterion 2.
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The final
“legal
standard” complaints by WMII relate to Criterion
8. WMII asserts
that a
determination of
inconsistency with
Solid Waste Management Plan cannot rely
on the failure of
an applicant
to meet specific
requirements
of that Plan; and that a siting
authority cannot
consider an applicant’s
failure to comply with the analysis and
content requirements
for a siting
application contained in a
siting ordinance, in determining
whether the application
meets the
statutory
Criteria.
Neither
of
these complaints
by
WMII
concerns the correct application
of the
Criteria;
both
of these complaints by WMII concern allegations that the decision
of the Kane
County Board
is not supported by the evidence. Not only are these complaints,
individually and
in toto,
concerning “legal standards” not an appropriate fundamental fairness argument
(as they
have nothing to
do with, and WMII alleges no inability of its right
to be heard), none of
them
amount
to allegations of an
actual
“inaccuracy” as asserted by WMII. Therefore,
WMII’s
contentions
concerning incorrect “legal standards” should be denied,
and the Kane
County
Board’s
decision upheld.
(b)
Evidence
referenced
in the
four-page Walter
document is accurate
Prior to
addressing WMII’ s alleged inaccuracies in the Walter document,
there are two
problems
inherent in the IPCB even considering WMII’s inaccuracy argument
under
a
fundamental
fairness review. First, the standard of review is de novo rather than
the manifest
weight of the evidence. If a de novo
review
is
conducted
by
the
IPCB, it would be contrary to
well
established case law requiring a manifest weight of the evidence standard of review,
when
considering whether a local government’s decision is supported by the evidence and should
be
affirmed.
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Second,
when conducting its review under the manifest weight
of
the
evidence standard,
the IPCB does
not consider the written decision of the local government alone, it
considers it in
connection with the
transcribed record of the public hearings.
(415 ILCS 40.1(a)). Thus,
much
like an
appellate court
considering the rulings of a trial court,
the appellate court turns to the
trial
court’s
written rulings as a guideline, but even if the written rulings are incorrect
and the basis
for
the
decision to be affirmed is contained in the testimony or record
of the trial court, the
appellate court
will affirm the rulings of the trial court.
Hux v. Raben, 38 Ill.2d 223, 224-225,
230 N.E.2d
831, 832 (S,Ct. 1967), citing, S.Ct. Rule 366. Therefore, the
Kane County Board
submits that the inquiry WMII seeks
is not consistent
with fundamental fairness, and
is an
attempt
to duck the well-established
law
on
the
standard and scope of review. Thus, WMII’s
argument
should be denied by the IPCB.
Without waiving this position, however, the allegations of WMII of inaccuracies
are
without
merit and individually addressed herein.
Further, an “inaccuracy,” if any,
was
insignificant
(particularly
in a record that is almost 5000 pages long); is not of a
substantial
enough fact to reverse
the
decision of the Kane County Board on a manifest
weight of the
evidence
argument;
and did not interfere with the procedural due process of the hearings
and
V/MIT’s
right to be heard. WMII alleges the following “inaccuracies” in the Walter four-page
memorandum:
•
WMII apparently alleges that Walter’s statements referencing an historical
average
traffic volume at
the landfill
of
227 (in and 227 out)
and existing
traffic
count of 160 (in), and concluding that WMII’ s assertion that truck
traffic would decrease with the proposed transfer station, opposed to the
17
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landfill is
incorrect. WMII is
simply, wrong.
First
of all, Walter cites Miller’s testimony stating that
the 160 was from an
actual count and the
227
was an historical 5-year average he
obtained from
WMII,
and Walter accurately repeats those
numbers in his document.
(C004880;
C003840-3842 (Tr. 9/30, 28-30)). Further,
WMII’s
traffic expert
Miller testified inconsistently on the issue of whether
when the proposed
facility initially opens it would increase or decrease truck
traffic.
The
application states “[a]s shown, when the facility opens, there would
be an
approximately
40 percent drop in the
average daily tonnage to approx.
1000
tpd,” yet Miller testified that even assuming the current landfill
was
1000
tpd
and the
proposed facility would be 1000 tpd, the truck traffic
of the proposed
facility, would be greater, as it adds transfer trailers to a mix of vehicles
and
transfer
trailers that are
part of the truck traffic
which existed to Woodland
Landfill at the time of Miller’s study and the time of the public hearings.
(C000700; C003846-003847(9/30 p.34-35)).
Thus, Walter’s reference
is
accurate.
•
WIvilI contends that Walter’s reference to Miller’s testimony that IDOT
informed
Miller that it would not change the traffic signal phasing at
the Rt.
25 and Dunham
Rd. intersection is incorrect. However, that is specifically
what Miller testified to, as quoted below. WMII attacks Walter’s document
on the basis that,
since no application was pending to IDOT, IDOT could not
18
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have
made such a determination. However, WMII’s
assertion attempts to
skew the focus of what its witness stated, and Walter’s reference
to that
statement
is accurate, despite WMII’ s dislike of that
testimony.
Q:
Has the State of Illinois
or
IDOT or KDOT given approval to
changing
that
to a
two-phase?
(David Miller)
A:
Unfortunately, no.
We had discussions -- or I had discussions with
Illinois
Department of
Transportation.
They
realized that that intersection
does not operate as efficiently as it should. What they had told
me
as to
the reasons they do not want to
change it at this point are
twofold:
Number one, because
they are anticipating this
realignment
of
Stearns Road hopefully
coming in a short period of
time, was one reason; and the second is that there is
a hill or an
incline from both northbound 25 and northbound Dunham.
So
there is some site distance issues right
at
that
intersection, and
they
were concerned with changing
that, unless there was
a
detailed safety study that
was done that could prove to them that
that could be handled without any potential safety issues.
So for those two reasons, they told me that they were reluctant
to
change that, even though they realized that that is an inefficient
way of handling that intersection right now.
(C003844-003845; Tr. 9/30, 32-33).
•
Wivill
twists the context of Walter’s four-page document when it argues that
Walter’s
statements in the document concerning
traffic signal warrants are
erroneous and misrepresent the evidence.
First,
despite the fact that a traffic
signal was included in a proposed condition for the transfer facility
and
Wivill’s
representative, Dale Hoekstra, agreed to the conditions (C003 126),
WMII
contends that there was no evidence that WMII would agree to a traffic
signal.
Second, whether or not WMII would agree to it is not the point of
Walter’s reference.
WI\411
takes the reference to signal warrants on which
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WMII chooses to pick out of context. The
context in the Walter
document
concerns utilizing Rte. 25 north to West Bartlett Rd.
and the testimonial
conflicts concerning whether this particular route
for transfer trailers
would
meet
Criterion
6.
Walter’s point, if you read the entire paragraph from
which WMII’
s pulled
quotation resides, is that a signal
at
the
site entrance will not cure the
inherent
problems associate
with and testified to
by Miller with making a left turn
from
the
facility. (C004881). Thus, Walter’s document is, again,
accurate.
5
•
WMII contends that Walter’s document incorrectly asserts
that WMII did not
consider schools. WMII is, again, wrong. While WMII witnesses
testified
they
were “aware” of the schools, as cited in Walter’s
document, Walter’s
document (if
read
in context) references
WMII’s
failure as specific to the
fact
its traffic expert, Miller, did not consider the bus routes of the
subject schools
and,
in fact, went on to state that he was not familiar
with
the “specifics”
of
what was occurring
with
those schools.
6(C003853-3854 (Tr. 9/30, 41-42)).
Mr. Lannert testified in the same manner: he knew the schools
were in the
It
needs
to be pointed out that WMII’s reference to Coulter’s
testimony is inaccurate.
(Memorandum
p.
17).
Coulter
provided sound technical basis and rational for his opinion concerning a traffic signal warrant. (C004270-
004271,
C004279-004281, C004340).
6
Q: In your traffic studies, did you take
into consideration the new U46 high school and middle school
under
construction off
Kenyon Road?
(Miller) A: Not
directly. I’m aware of those proposed facilities which are located to the north and kind
of west
of the site. I’ve not
seen any traffic studies that were prepared for those, so I’m not aware of where any of that
traffic
would be
going as it relates to this area. But
I am aware of those facilities. (C003853 (Tr. 9/30,
p.
41)).
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area,
but
he did
not take
then into consideration. (C003268 (Tr.
9/17
p.
81)).
Therefore, again, WMII is the one who
is incorrect, not Walter’s document.
Wivill complains that the statement in
Walter’s four-page document
that the
end
use plan for Woodland Landfill was
not considered in Criterion
2 or that
portion of Criterion 3 concerning incompatibility with
the surrounding
area is
false. At best, WMII’s witnesses’ testimony
is inconsistent on this
topic, but
regardless, Walter’s references are
accurately reflected in the
record.
Specifically,
one of
WMII’s
Criterion 2 witnesses, Mr. Nickodem
testified:
Q: South Elgin has referenced
and discussed that there is
an end use plan that they have factored
into their east side
development plans
and
the well-known
end use plan design
that’s been circulated throughout this hearing and discussed
included
a driveway where, I believe, the driveway
currently
is
situated
for the existing facility. In your
design layout, did you give any
consideration to the
possibility
that that end use plan would be as diagrammed
fourteen years ago?
A: No, I did not.
(C003487 (Tr. 9/19
p.
145).
Nickodem testified further, consistent
with Walter’s statements, that he
never
considered having another access point to
the Woodland Landfill or
the
proposed transfer
station.
(C003665). Additionally, Lannert testified that
he
looked at
the
end use plan
(C003282-003283
(Tr. 9/17, 95-96)), however,
no
Further, since the
school
issues
as well as
a number of the other alleged “inaccuracies”
or statements “outside the
record” as
alleged by WMII were made during the public hearing, the IPCB should find WMII waived
its
objections, since it did not object at the time these were raised during the public hearing, and did not object when
the
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reference to
the end
use plan is included in Lannert’s
report. (C00572-
00600).
Further, the hours of operation are proposed to be
96
hours
a week as stated
in Walter’s document and, although waste would not
be accepted for 24 of
the 96 operating hours, transfer trails may still be leaving
the site after having
been loaded. (CC003742-003743 (Tr.9/26,
p.
67-69); C000701 (Table
2 of
Metro’s report showing projection of 4 transfer trailers
leaving
after 6:00
p.m.)). Also, regardless of the
hours of waste acceptance or
operation,
Walter’s statement concerning
hundreds
of trucks per week remains
accurate.
Finally,
the
statement in the Walter document regarding
the conflict between
the proposed transfer station and the
end use for Woodland Landfill
is his
stated opinion, which has been adopted as the Kane County Board’s
opinion,
in Resolution 02-431. There is nothing in the record
to prove, by manifest
weight of the evidence, that this opinion is incorrect,
given
the evidence
presented.
8Again, the references in the Walter memo are accurate.
e WMII takes issue with that portion of Walter’s document
referencing
the
four-page Walter document was presented at
the
December 10, 2003, County Board Meeting (See, C004537
(Tr.
10/10 189)).
8
Lannert’s testimony, whether or not he
was
the only one to testify concerning compatibility, can be weighed
by
the
County Board in
making its decision. Contrary to WMII’s assertion, the local hearing officer made
no specific
finding as to the
credibility
of
Lannert, instead, the hearing officer found Lannert’s testimony
to be “probative.”
(C004847).
Further,
to the extent any finding of credibility is inferred from the local hearing officer’s
findings,
such
finding is off-set by the Walter document, which references inconsistency or unbelievability of the findings on
Criterion
3,
including compatibility of a
transfer
station and the planned Woodland Landfill end-use park. However,
given
that
Lannert testified that he also believes a leaking Superfund space is a compatible use with
open/recreational
space, it is easy to see how Mr. Lannert’s testimony was not given full weight by the Kane
County
Board.
(C003324 (Tr. 9/17,
p.
137)).
22
Printed on Recycled Paper
closure
of Woodland
Landfill and its relationship to a reduction
in in-bound
waste collection trucks, as being a statement
concerning the “state
of the
public in South Elgin, Wayne and St. Charles” (Memorandum
p.
21), which
is
outside of the record. Contrary
to WMII’s reference, Wayne,
South Elgin
and
St.
Charles
commented on the proposed siting application
and their comments
are in the record. (C002740-002742,
C002764-002769,
C002770-2780,
C002890-002894,
C002895-2897). Further, the reduction
in the numbers
of
inbound collection vehicles once Woodland Landfill
closes is, again contrary
to WMII’s assertion and completely illogical, because as
per WMII’s own
sworn
testimony
concerning
the service area, these trucks are
not just coming
from the area immediately surrounding the
proposed facility. (C004074-
004075 (Tr. 10/3,
p.
40-41)). Thus, WMII’s assertion
must be denied.
•
WIVIJI
argues that a reference in the four-page Walter document
that 24 of
29
townships are west of the river, and that the
transfer station’s location requires
hundreds of trucks to cross the river is based
on evidence outside the record.
WMII’ s assertion is not accurate. WMII’ s own maps and diagrams
show
the
location of the Fox River in a manner where it is easily compared
to the
service area
geography and the Walter document
makes no reference
to
“transfer trailers” as alleged by WMII, instead it references “trucks.”
Given
WMII’ s testimony that the Woodland Landfill was, at the time of the public
hearings, accepting approximately• 1,000 tons per day (before the December
23
Printed on Recycled
Paper
10,
2002, decision, however,
Woodland Landfill reached
capacity and stopped
accepting waste), and that the transfer
station was being proposed
to accept
more
than double that amount, it is reasonable and logical
to conclude that
additional
trucks will be
coming into the site from the proposed
service area,
including those portions of the service area west of the Fox
River.
(C003 846-
C003 847 (Tr. 9/30,
p.
34-3
5);
C004057
(Tr. 10/3
p.
23)).
o
WMII asserts that Walter’s accurate statement that
WMII did not consider
use
of a
rail line, combined with the
logical extension that the same
throughput
with use of rail for output would necessarily
reduce transfer trailer
output, is
somehow unfair.
First,
WMII’s lack of consideration
to rail lines
and
Walter’s statement of such is in the record.
(C003736 (Tr. 9/26
p.
62)).
Second, it is not fundamentally unfair to WMII that a County
Board Member
or Members draw conclusions from the evidence presented. For
example,
in
a
negligence trial, no one generally testifies
as to whether the defendant
was
“negligent,” instead, persons testify concerning the elements
and the
conclusion is
left up
to
the trier of fact to determine. The same holds
true in
this instance, even though this proceeding is not
and is not held to the
same
standards as a purely judicial or adjudicatory proceeding.
o WMII’ s next gripe is that the four-page
Walter
document makes reference
to
South Elgin’s comprehensive plan having
been
ignored
by
WMII, and that
Walter references
the 1988 siting approval of Woodland
Landfill. WMII
24
Printed on Recycled Paper
contends that Lannert testified that the proposed
transfer station was
consistent
with
South
Elgin’s
Comprehensive Plan; and,
that the local hearing
officer ruled that the County Board could not consider
its conditions on
the
1988 expansion of Woodland in making
its decision on the proposed
transfer
facility. WMII is wrong on both counts. To what
extent
Lannert considered
South
Elgin’s comprehensive plan
is a matter of the credibility
of and
statements
made during his testimony. This, like the rest
of
the
“inaccuracy”
or “outside the record” allegations brought
by WMII, is an issue
of
whether
the Kane County Board’s decision is against the
manifest weight
of
the
evidence and is not a fundamental fairness issue.
Lannert testified that a transfer station minimizes incompatibility
with
open
space and recreational uses, like a bike path and the
end
use for Woodland.
(C003314, C003321 (Tr. 9/17,
p.
127, 134)). He also testified
that
a leaking
Superfund site is a compatible use with open
space/recreational use, because
it
is an “open space.” If nothing else, this shows that Mr.
Lannert’s study was
surficial and did
not
take into account actual or planned uses only
“spaces.”
Q: So in your expert opinion, you categorize a leaking superfund landfill
as open space;
is that your opinion?
(Lannert)
A: Yes.
(C00324 (Tr. 09/17 p.l3’7)).
Further, WMII mischaracterizes and misstates the local hearing officer’s ruling
on the issue of evidence concerning the 1988 agreement
between
WMII and
25
Printed on Recycled Paper
South Elgin and the 1988 siting of
Woodland Landfill: the hearing
officer
found
that evidence concerning it was admissible
during
the hearings,
but that
the County Board had to consider the Section
39.2 Criteria and could
not base
its decision on whether WMII was violating
either its 1988 agreement
with
South Elgin or the 1988 Woodland
Landfill siting conditions
(C004566-
004567).
Moreover, WMII waived any issue it
may have had with admissibility,
as it
opened the door to the discussion
on both these 1988 topics,
not only from
statements contained in its application,
but
from its opening
statement
and
testimony as
well. (C000015; C003205-003208 (Tr.
9/17 18-21)). Thus,
WMII’
s contention of this information
effecting fundamental fairness
should
be
denied.
• WMII argues that the statement in
Walter’s four-page document that
“[w]e are
being asked to relieve Waste Management of the obligations
already agreed
to
and imposed upon them by the Board” was outside the record.
It was not. It
is a
logical conclusion of what the application requested. Rather
than the entire
Woodland site becoming open space and recreational
use, a portion of it would
be
relieved of that obligation
and become a
transfer
facility under WMII’s proposal.
However, the fact that this statement was made is hardly “fundamentally
unfair”
since WMII
opened the proceedings with the opposite statement, i.e., that
it was
not asking to be relieved of the obligations it agreed to during 1988 concerning
26
Printed on Recycled Paper
the
Woodland
landfill
andlor
site.
(C003205-003208
(Tr.
9/17,
18-21)).
-
Therefore, WMII
not
only
responded
to
it,
WMII
was
the
first
to
bring
it
up.
Finally, the
hearing
officer
instructed
the
Kane
County
Board
on
what
factors
it
should consider
in
making
its
decision
(i.e.,
the
Section
39.2
Criteria)
and
there
is
no
evidence that
the
Kane
County
Board
did
not
follow
those
instructions.
WMII’s
obligations
in
1988
(its
agreement
not
to
“expand”
Woodland
and
its
end-use agreement
for
Woodland)
are
relevant,
as
so
ruled
by
the
hearing
officer,
as pertained,
at
least,
to
Criterion
3
(and
even
if
they
were
not,
WMII
waived
this
issue), and,
therefore,
they
were
properly considered
within
and
as
part
of
the
evidence
concerning
the
Criteria.
(C004566-4567).
Therefore,
WMII’s
stretched
assertions
that
Walter’s
four-page
document
was
‘fundamentally
unfair”
because the
specific
items
\VMII
identifies
are
allegedly
“inaccurate”
or
“outside
the
record”
is
not
only
incorrect
from
a factual
standpoint,
but
far
a
field
from
unfairness,
even
if
Walter’s
statements
were
not
correct.
Walter’s
document
was
correct
and
nothing
about
it,
and
the
remainder
of
the
written
decision
of
the
Kane
County
Board
deprived
WMII
of
its
right
to
be
heard
or
was
fundamentally
unfair.
Therefore,
WMIJ’s
Petition
should
be
denied
and
the
decision
of the
Kane
County
Board
affirmed.
5.
Even
if
the
IPCB
finds
in
WMII’s
favor
concerning
its
allegations
of
unfairness,
the
remedy
is
not
“reversal”
of the
Kane
County
Board
decision
as
sought
by
WMII, rather
it is
to
return
the
decision
to
the
Kane
County
Board
to
cure
any
alleged
unfairness
and
take
another vote
of
the
Kane
County
Board
Even
if
the
IPCB
finds
in
WMII’s
favor
concerning
WMII’s
meritless
allegations
of
unfairness,
WMII’s
requested
relief
of
“reversal”
of
the
Kane
County
Board’s
decision
is
not
an
27
Printed
on
Recycled
Paper
appropriate remedy.
The remedy for a lack of fundamental
fairness
is a remand to
the Kane
County Board to
provide it with an opportunity to correct the
problem. Land and Lakes
Company, et al. v.
Illinois Pollution Control Board, et al., 245
Ill.App.3d 631, 644, 616
N.E.2d
349
(
3
rd
Dist.
1993), City of Rockford v. Winnebago
County
Board,
PCB
87-92
p.
2-3
(November 19, 1987),
McLean County Disposal
Co.
Inc.
v. County of McLean, PCB
89-108
p.
5
(November 15, 1989).
WHEREFORE, Respondent respectfully requests that the Illinois
Pollution Control
Board find that
the proceedings before the Kane County Board
were fundamentally fair,
and
affirm the
December 10, 2002 decision of the Kane County Board. Alternatively,
should
the
Illinois Pollution Control Board find
that either
WMII has a right to respond to
that portion of
Resolution
02-431 comprised of County Board Member Walter’s four-page
memo, or that
facts
or legal standards referenced in that
document
are not accurate and somehow interfere
with
WMII’s
right to be heard (fundamental fairness), that the Illinois Pollution
Control Board
remand the
proceeding, give WMII and any other participant (as defined in the
Kane County
siting
ordinance) 30-days or less to file a written response which will be made available
to the
Kane County Board, and then hold a
meeting
to deliberate and vote, again, on WMII’s
siting
application.
9
WMII has simply
alleged no unfairness or denial of its right to be heard at the public hearings, therefore,
there
is no need, nor is
there alleged to be a need by WMII, for requiring new public hearings be held.
28
Printed on Recycled Paper
B.
THE KANE
COUNTY BOARD’S
DECISION IS SUPPORTED BY THE
EVIDENCE IN
THE RECORD, IS NOT
AGAINST THE MANIFEST WEIGHT
OF THE
EVIDENCE, AND SHOULD BE UPHELD
WMII challenges the Kane
County
Board’s decision on Criteria 2, 3,
6 and 8. In doing
so, WMII
misstates the local hearing officer’s findings, which are attached to
the Resolution
denying
siting
approval,
by
stating
that the local hearing
officer found
that Wivill met the
Criteria.
In fact,
that is not the case. The local hearing officer found
that WMII only met
Criterion 1, 2, 3, 5, 6,
and
8
subject to conditions. This means, without
the conditions being
imposed,
(which they were not, as the four-page Walter document and Resolution 02-431
states
specifically that the
findings
of
the local hearing
officer are adopted except to the extent they
are
incohsistent with
the four-page Walter document), WMII did not
meet its burden of proof with
respect to
the aforementioned Criteria.
Additionally, WMII’s assumption that the Kane County Board
adopted the local hearing
officer’s
findings
of credibility is flawed, as the Resolution embodying the County
Board’s
decision
specifically states that it adopts the local hearing officer’s findings, except
to the extent
they are
inconsistent with the four-page Walter document. (C004828). Therefore, to the
extent
the
Walter document criticizes the credibility of WMII’ s witnesses or the inconsistency of their
testimony
or the testimony as a whole, credibility was at issue and not merely accepted
as
proposed by WMII.
Finally, when the IPCB
reviews the decision of the Kane County Board, its reviews the
record on appeal, particularly
all the sworn testimony from the public hearings, in determining
whether to affirm the
Kane
County Board’s decision. In other words, while the written decision
29
Printed on Recycled Paper
of
the Kane County
Board provides
a guideline as to the basis for the decision, the IPCB can find
other rationale
from
the record to uphold the decision
and
is not limited to looking at only what
is included
in the Kane
County Board’s written decision (Resolution 02-431, with
attachments).
The
Supreme Court
has held that a “reviewing court may, in its discretion, and
on such terms as
it deems
just.. .give any
judgment and make any order that ought to have
been made,” and “it is
the
responsibility of a
reviewing court for a just result and for the maintenance
of a sound and
uniform body
of precedent...”
Hux v. Raben,
38
Ill. 2d 223, 224-225, 230
N.E.2d 831, 832
(S.Ct.
1967), citing, S. Ct. Rule 366.
1.
The
Kane County Board’s decision denying WMII’s site location
request on
the basis of Criterion 2 should be upheld, as that decision was not against
the
manifest weight of the evidence
WMII focuses
on the four-page Walter document and the testimony of only its
own
witnesses.
WMII not only
ignores
the record which supports the Kane County Board’s
decision,
but also
the testimony of: Mr. Lynch, a
professional engineer working with
the Village of
Wayne; Mr. Gary
Deign, an environmental consultant hired by Kane County; Brent
Coulter, a
consultant hired by Kane
County; and Chief Joseph Cluchey, from theSouth Elgin
&
Countryside
Fire Protection District, the agency that
would be an emergency
responder
to the
proposed facility,
all of whom also testified on Criterion 2.
For at
least the following reasons in addition to those touched on in County Board
Member
Walter’s
four-page document, the Kane County
Board had ample reason
to deny on
Criterion 2. Evidence
presented either through testimony of the WMII’ s own witnesses or
other witnesses,
which call into question the reliability or accuracy of the
WMII’s
application
and
testimony in support of
meeting
the
design, location and operation portions of Criterion 2.
30
Printed on Recycled Paper
•
There is no
National Fire Protection Association (NFPA) code or
standard, which
specifically
identifies transfer stations.
(C003617-003618 (Tr. 9/24,
108-109)).
Therefore,
the proposed activities of the transfer station have to be compared
with the
standards
provided in the NFPA to coordinate the best-suited standard with the proposed
activity.
(C004403-C004407 (Tr. 10/10 55-59)).
o
The
air ventilation system and CO
monitoring system,
as presented by WMTI, were at
very early,
conceptual stages of design. (C003519-003521,
C003557-003558
(Tr. 9/24
10-12,
48-49)).
Additionally, WMII provided contradictory evidence concerning
whether
any
mechanical or odor counteractant control measures would be implemented. Finally,
due
to
the 145’ open doorway, any ventilation system installed by WMII as conceptually
designed in the application (i.e., the only portion of it that was apparently designed
was
the fact
that there would be six vents) would “short circuit,” resulting
in it pulling air
from the
outside, rather than from the areas of operation within the
transfer station
building. (C004398-004401 (Tr. 10/10, 50-53)).
• No accommodation
was made for noise attenuation from the building, in
the building
itself
(C003586-003587 (Tr. 9/24, 77-78)). Types of accommodation, such as screening
and landscaping
are also considered under Criterion 3, as the facility’s ability
to control
these items
helps
minimize impact on the character and value of surrounding
properties.
Further,
although WMII did not
believe
insulation for noise attenuation would be needed
inside the building, it also
did not perform any studies to determine whether
the screening
they
propose would diminish noise levels, such as a decibel study. (C003587 (Tr. 9/24
78)).
31
Printed on Recycled Paper
o Although WMII
strenuously,
both in writing and through testimony,
represented its
compliance
with
the Kane County Storrnwater Ordinance, it was not compliant
with that
Ordinance. For example,
under
the Kane County
Stormwater Ordinance, infiltration in
the
detention
basin
does not “afford compliance” with the retention
component
of the
Ordinance (C003615 (Tr.
9/24, 106)) as represented
by the Applicant’s witness,
and,
although
required
by the Ordinance, the Applicant did not address existing
wetlands
either on site
or adjacent to the site/facility. (Kane
County Solid Waste Management
Ordinance,
Art.2, Sec. 203(g)(1); Art. 4, Sec. 414-418).
•
Although
the site/facility was proposed to operate indefinitely, there was no consideration
provided to
the life expectance of basic material components of the proposed
transfer
station structure,
which components
do
not have an “indefinite” life
span.
(C003584-
003585
(Tr. 9/24,75-76)). Further, despite its proposed indefinite lifespan, there
was no,
at least
comprehensive or complete, maintenance plan for the facility presented
by the
Applicant. (C003593-003594 (Tr. 9/24, 84-85)).
• Although a
lighting plan was included in the application, there was no
accommodation
for
natural illumination and WMII did not know whether the lighting plan
considered the
change in lighting
conditions from natural to electrical/artificial, when
a
truck
backs into
the facility.
(C003591-003593 (Tr. 9/24, 82-84)).
•
Contrary
opinions
were provided as to whether there is sufficient room on-site
to
facilitate
the transfer of 2,000 tpd of solid waste. On the one hand, WMII’s witness Mr.
Nickodem testified that the facility was designed to transfer
2,000
tpd (C003516-003517
(Tr. 9/24, 7-8)), but admitted
that
the size
of
the building for that capacity was the
most
32
Printed
on Recycled
Paper
challenging
feature of the site to overcome (C003582 (Tr. 9/24,
73)),
and additionally
was
non-committal concerning the
location of the proposed sand pile and its three-sided
structure,
due to the potential for holding up traffic flow
on site (C003532-003533 (Tr.
9/24, 23-24)).
On the other hand,
Mr. Deigan testified that the proposed throughput for
the facility can
cause operational
issues due to
the
limitations on usable land area
(C004392-004394 (Tr. 10/10, 44-46)).
o Contrary
opinions
were given with respect to whether the
evidence presented
by
the
Applicant meets this Criterion. While
WI\411’s
hired expert stated
that the Criterion was
met, the
County’s consultant
presented
his opinion that the Criterion was not
met.
(C003477-003478
(Tr. 9/19, 135-136);
C003717 (Tr. 9/26, 43); C004391 (Tr. 10/10,
43)).
• WMII did not consider off-site areas, such as Brewster Creek
and wetland areas, in
connection with its design of the stormwater management
system. (C0036147 (Tr. 9/24,
108)).
Further, to the extent the WivIlls 1993 letter from
the Illinois Department of
Conservation (concerning the Woodland Landfill) is considered “evidence” addressing
such proximity, the evidence is outdated. (C000196-000198). In fact, the evidence is
so
old that the agency from where the letter came is no longer in existence (if a to-date letter
was
provided in the application it would have be provide
by
the Department
of Natural
Resources).
Further,
although
WMII references studies having been done with respect to
the hydrogeology of the proposed site, it does not include any detail
of those studies,
either
through attachment or detailed description of them, in
the application or through
testimony.
33
Printed
on Recycled
Paper
•
Given the
ability of plant and animal life to migrate and populate new
areas, the 9-year-
old letter
from Illinois Department of Conservation contained
in WMII’s siting
application and obviously prepared for a different Woodland Landfill
project, is not
reliable or
accurate from a current perspective.
Obtaining an updated letter from the
Illinois Department of
Natural Resources
is rational and reasonable, and there is no
valid
reason why the
Kane County Board could not
reject this
9-year-old document on its
face
and
based
solely on its stated age. Additionally,
it is unclear from WMII’s application
whether the property of
the proposed location,
opposed to the footprint of the landfill,
was
reviewed by the Illinois Department of Conservation in preparation of this
1993
letter.
•
WMII did
not have a written plan that identified day-to-day operations,
opposed to
emergency contingencies, of the site/facility, such as cleaning access roads and other
impervious road and lot areas on site at least daily for water quality purposes; inspection
and cleaning of silt and
debris from drainage areas; measuring or cleaning
sedimentation
accumulation
in the
detention basin; cleaning the floor and walls of the
facility;
regular
rodent
and
vector inspections and controls; odor response planning; litter
picking;
equipment breakdown; and
other potential operational or regular operational issues.
The
Kane County Board
can take the operational history of the applicant into consideration
and testimony by
Mr. Deigan raised concerns with WMII’s housekeeping practices,
based on his observations of two
other facilities operated
by
WMII. (C004375-004389
(Tr. 10/10,
27-4
1)).
34
Printed on Recycled Paper
•
WMII
was inconsistent in its assertions concerning the timing of transferring
waste at
the
proposed
facility and this has a direct impact on the ability of the
facility to manage the
proposed
throughput capacity. Specifically, although WMII provided more
than two
different
estimates in which waste could be transferred at the facility (eight and ten
minutes),
two consultants hired by Kane County observed and timed the Applicant’s
operations
at another facility, finding that the waste was transferred in 10
minutes.
(C003652-003653
(Tr. 9/24, 143-144); C004330 (Tr. 10/9,
130);
C004435-004436
(Tr.
10/10, 87-88);
C003909-003912 (Tr. 10/1, 41-44)). This evidence directly
contradicts
one
of WMII’ s main assertions crucial to its opinions concerning the operation, capacity,
and
on-site traffic flow (back up potential) of this proposed facility.
Therefore based on
the record, in the light
most
favorable to
the Kane County Board, the
County
Board’s
decision is not against the manifest weight of the evidence, WMII’s
appeal
should be denied; and
the Kane County Board’s decision as respects
Criterion 2 should be
affirmed.
2.
The Kane County Board’s decision denying WMII’s site location request on
the
basis of Criterion 3 should be upheld, as that decision was not against the
manifest weight of the evidence
WMII
argues
that the Kane County Board’s decision is against the manifest weight of the
evidence and, in doing so,
again focuses solely on the four-page Walter document, ignoring
the
weight of the entire
record, including the four-page Walter document.
For at least the following
reasons in
addition to those touched on in County Board Member Walter’s four-page
document,
the Kane County Board had ample reason to deny on Criterion 3.
35
Printed on Recycled Paper
As an
initial matter, prior to stating those reasons, two blatant misrepresentations
by
WMII in its
Memorandum must be addressed. First, WMII represents that the
local hearing
officer ruled that
the 1988 Woodland Landfill expansion was not relevant. To the
contrary, the
hearing officer was
consistent in his holding that although he was
not going to decide
relevancy, per Se, that
the Kane County Board could
consider the adjacent property and use,
and, thus,
consider the end-use of Woodland Landfill in terms of Criterion 3 issues.
(C004566-
004567).
Second, WMII incorrectly defers to the local hearing officer’s
determination that
WMII
“substantially” complied with the Kane County siting ordinance (Respondent’s Hearing
Exhibit 1), when
Resolution 02-431 clearly states that such findings of the
local hearing officer
are
not
adopted by
the Kane County Board if they contradict the
four-page Walter
Memorandum.
WMII’s failure to review and present evidence concerning a 5-mile radius as
required by
Kane County’s ordinance,
instead,
determining for itself 1-mile or 1
15
th
of the
required
distance was sufficient. Either this was overlooked by WMII in its preparations of the
siting application or
it intentionally ignored the requirement of the siting ordinance;
in either
case,
however, the Kane County Board would be correct in finding that WMII’s evidence was
insufficient to
meet Criterion 3.
In addition to the above
and the reasons provided in the four-page Walter document,
the
following
evidence provides ample support for the Kane County
Board’s
decision to deny on
Criterion 3:
•
Berming,
landscaping and fencing are all, admittedly by
W1\411,
important factors
in
minimizing the incompatibility or effect of the proposed site/facility, as they
36
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help to buffer the site/facility from view. However,
although WMII proposed
berming and
fencing along
the Illinois Prairie Path side and entranceway
side of
the
proposed site/facility, it proposed no buffer
on
the
other sides of the proposed
facility, including
that portion
of the facility that would be adjacent
to and “face”
the Woodland Landfill recreational end-use. (C004481
(Tr. 10/10, 133).
Additionally, although Mr.
Lannert was aware of the End Use Plan
for Woodland
Landfill, he provided contradictory evidence concerning
his consideration of this
use in
planning the proposed
berming and fencing of the site/facility
(C003284-
003290
(Tr. 9/17, 97-103). While, on the
one hand he recommended
fencing,
berming and landscaping to
buffer the Illinois Prairie Path from the
site/facility,
due to is recreational use,
he
utilized the Woodland Landfill as a
buffer, rather
than buffering the site/facility from the
Woodland Landfill. Id.
Landscaping, berming and fencing is an important tool in
minimization of effect
and incompatibility. Additionally, an undulating
berm, which was not proposed
by
WMII, other than a “little bit,” “just looks better” according
to Mr. Lannert,
and, thus, is a more effective way to screen the site/facility from
the
surrounding
land uses, yet it was not proposed by WMII. (C003308-003309 (Tr. 9/17,
121-
122).
•
Litter,
vector,
odor, and dust, as examples of operational issues, are important
to
compatibility as the site/facility,
and Mr.
Lannert
assumed those issues would be
properly and efficiently addressed by the operator, in reaching his conclusion on
Criterion 3. (C003310-003312 (Tr. 9/17, 123-125).
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Therefore based
on the record, in the light most favorable
to the Kane County Board, the
County Board’s
decision
is not against the manifest weight of the
evidence,
WI\411’s
appeal
should be denied;
and the Kane County Board’s decision
as respects Criterion 3
should be
affirmed.
3.
The Kane County Board’s decision denying WMII’s site
location request
on
the basis of Criterion 6 should be upheld, as that
decision was not against
the
manifest weight of the evidence
Transfer trailers did not (as Woodland Landfill is no longer
open) use Woodland Landfill
at the time
Wivill
filed its transfer station site location application, at the time
of the public
hearings on that
application, and for some time
prior to those events. (C003923-003924
(Tr.
10/1, 55-56).
Thus, transfer trailer routing was not something
already in existence from
Woodland Landfill that WMII could argue was a “carry over” to the proposed
transfer station.
WMfl incorrectly
argues, that its witness David Miller and the
County’s traffic expert, Brent
Coulter, agreed on transfer trailer truck routing to the north on Rte. 25 and east
on West Bartlett
Rd. The only
transfer trailer route which WI\411’s witness,
David
Miller, testified in support
of
meeting
Criterion
6
was Rte. 25 south to Rte. 64 East. Mr. Miller ruled
out Rte. 25 north due to
the
left turn maneuver out of the proposed site driveway and due to the Level F intersection
at
Rte.
25 and Dunham, which would need to be passed by transfer trailers moving north.
Even
when
prodded by the local hearing officer concerning the north Rte. 25 option, Mr. Miller would
only
agree that it would be an option if the intersection of Rte. 25 and Dunham did not exist.
(C003986-003987
(Tr. 10/1, 118-119)).
Mr. Miller ruled out all other existing routes.
(C003963-003967, C003969-003
972 (Tr. 10/1, 95-99, 101-104)).
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Mr. Coulter, a
professional engineer
with a background in urban planning,
who was at
one point in
time the highway superintendent for DuPage County, testified
as to numerous
reasons why
Mr. Miller’s preferred route does not meet Criterion 6, and
expressly did not
provide any
opinion that any
other
route, existing or planned, would meet Criterion
6. Brent
Coulter’°
testified that WMII’s proposed Rte. 25 south, for transfer trailers
did not meet Criterion
6,
due to the curvy,
rolling and hilly alignment of Rte. 25; the residential
street
function of Rte.
25; the very
tight turning radius at Rte. 25 and 64; and the downgrade
slope on the southern
approach to Rte. 25 and
64; and, vehicle
queing at that intersection (particularly
since Mr.
Miller’s firm,
Metro, was working with IDOT to increase the delay on Rte.
25 at the signal that
controls
the intersection of Rtes. 25 and 64). (C004234-00425 1). Mr. Coulter
clarified that Rte.
25, despite being a
State
of Illinois roadway, is
a route that has, essentially, been unchanged
since the 1930’s
to 1950’s; that it is an old highway and does not
meet modern highway
standards relating
to alignment. (C004236). Further, Rte. 25 has very little
superelevation or
banking
(which means that at the speed limit or higher, trucks the size of transfer trailer
trucks
will tend to
“off track” and leave the roadway on curves; that 80% of the part
of Rte 25 proposed
to
be used by WMII is no passing (and one lane with, essentially no shoulder); and, that
a large
portion
of this route has residential homes fronting Rte. 25 with their individual
driveways
entering and exiting directly from Rte 25. (C004238-004239).
‘°
Again, WMII’s
“liberty” with words must be addressed. WMII contends that Mr. Coulter was “not in
opposition”
to its Application.
Although, Mr. Coulter stated he was “neutral,” when asked
by
the local hearing
officer
(who was
authorized by
the siting ordinance to ask each witness their “position” with respect to an application) for his position
on the application,
Mr. Coulter understood that question to mean when he was for, against, or neutral with respect to
the
transfer station proposal. He clearly stated that he was opposed to WMII’s proposed transfer trailer routing
south on Rte. 25.
(C004224, C004334, C004332).
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Mr.
Coulter also testified concerning Rte. 25 north to West
Bartlett Road east as a
transfer trailer route he analyzed. Mr. Coulter did not render an
opinion concerning this
routing option and
whether
it
met Criterion
6. (C004258). Mr. Coulter’s
simply testified
concerning the general
suitability
of Route 25 north and West Bartlett
Rd. east of the proposed
facility,
based on the characteristics of those roadways and acknowledging
the suitability
is
limited by the
level of
service of
intersection
Rte. 25 and Dunham.
(C004258-004262).
Although WMII
testified that it would be sending
the majority of the transfer trailers
out of the
proposed facility
during off-street peak hours, it
failed to provide traffic counts for off-street
peak
at Rte. 25 and Dunham. (C004263). WMII only provided traffic counts
for Rte. 25 and
Dunham for the
morning and evening rush hours. Id.
Rte. 25 and Dunaham is a “F”
rated
intersection
during those times, which means, like a report
card, the intersection fails and it
is not
an
aãceptable design level of service in the State of Illinois.
(See, C004262). However, based
on
traffic counts
WI\411
gathered from Dunham and Stearns (a different,
but nearby intersection),
Mr. Coulter extrapolated that data to obtain “a preliminary estimate or assessment”
of middle of
the day operation at the Rte.
25
and Dunham intersection. (C004263). Mr. Coulter
testified
concerning
his evaluation of all the other existing and available routes from
the proposed transfer
station, and found none of
them to
meet Criterion 6.
(C004252-004257).
Mr. Miller maintained throughout his testimony that the Rte. 25 and Dunham intersection
was a sever limitation to the Rte. 25 north to West Bartlett Road routing option and never took
the stand
in rebuttal to Mr. Coulter to clarify what, if any opinion, Mr. Miller had concerning
off
peak usage of
that intersection.
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Furthermore, it is important to reference
that
the local
hearing officer did not
find either
Miller’s Rte. 25
south or Coulter’s Rte. 25 north
to be
options
that met Criterion
6. (C004856).
The very first condition
referenced in the
local
hearing officer’s findings states
that the facility
“shall not open” until
July
1, 2006,
or the realignment of Steams-Dunham
corridor (with
additional
limitations). Id. The Stearns-Dunham
corridor
realignment, another
routing option
discussed at the
public meetings but not existing
at the time of those hearings,
was believed to
be scheduled for
completion in 2006.
(C004334-C004335).
Therefore, unlike WMII’s contention, the evidence does
not support any single route
for
transfer
trailers, as Coulter’ s testimony is sufficient
for the Kane County Board to
find that Rte.
25
south does
not meet Criterion 6, and Miller’s
and Coulter’s testimony regarding
the
intersection
of Rte. 25 and Dunham (an intersection
necessary
to the Rte. 25 north route),
is
inconclusive concerning the ability of that intersection to handle the
addition of transfer trailer
traffic,
even at off-street peak hours. In addition to the failure of WMII to
meet Criterion 6 with
respect
to its designation of a transfer trailer truck route, there were other
concerns raised at the
hearings by Mr.
Coulter. (See, C04270-004272).
Finally, there are other problems inherent
with
Mr. Miller’s testimony, including but not limited to those listed below:
•
Mr.
Miller testified
numerous times for WMII and once for a municipality,
however,
he has never found that traffic
impact
was not minimized by a proposed pollution
control facility. (C003916-003917, C003956 (Tr. 10/1, 48-49,
88).
•
Rte. 25 is neither a strategic regional arterial (SRA) nor
a designated truck route.
(C003824-003825 (Tr. 9/30, 12-13), C003967 (Tr. 10/1, 99)).
•
Mr. Miller has limited familiarity with the intersection of Rte. 25 and 64, “. . .I’m not
41
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familiar with
25
and 64,” (C003828 (Tr. 9/30, 16), despite
having completed
a
computer
model using
the
geometry of that intersection and riding in
a
transfer trailer
truck (approximately 60 feet long) through that intersection.
(C003857-003861,
C003865-003866
(Tr.
9/30,
45-49,
53-53)).
•
No
level of service data was
provided by WMII for Rte. 25 and 64
(C003881 (Tr.
10/1, 13)).
Likewise,
Mr. Miller did not analyze what amount of
traffic would reduce
the
level of service at Rt. 25 and 64
(C003906 (Tr. 10/1, 38)), and he
had no
knowledge as to whether there were secondary peaks
in traffic which would conflict
with
the peaks in site/facility generated traffic, at the Rte. 25
and
64
intersection
(C
003961-003962 (Tr. 10/1, 93-94)).
•
In
making the turn from 64 to Rte. 25,
North, during his ride in a transfer trailer,
Mr.
Miller even experienced some difficulty, when a automobile traveling
South on 25,
stopped for the light over the stop line for the intersection with 64.
(C00393 1-003932
(Tr.
10/1,
63-64)).
•
Mr.
Miller had difficulty recalling characteristics
of Rte.
25
which are important to
determining whether utilizing the roadway for transfer trailer trucks
would minimize
impact
on existing traffic flows. For example, Mr. Miller did not know how much of
Rte. 25 was
striped for no passing, even though striping is indicative
of horizontal and
vertical sight
limitations on a roadway,
(C003967
(Tr. 10/1,
99)), he could not recall
whether Rte.
25
had no
shoulder existing in areas and whether there were
steep
embankment
slopes from the roadway on the proposed route, (C003968 (Tr. 10/1,
100)), and he did not obtain any IDOT truck count data for Rte. 25 and 64, although
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he
admitted that IDOT may have such data (C003978 (Tr. 10/1, 110)). Additionally,
Mr. Miller testified
that the slowest
speed limits of any of the potential routes for
transfer trailer trucks leaving or arriving at the proposed site/facility were on Rte. 25.
(C003998-003999
(Tr.
10/1, 130-131)).
•
Mr.
Miller did little to analyze and did not utilize a computer
model
to analyze
queuing of transfer trailers from the proposed site/facility to the intersection
of Rte.
25
and 64. (C003978 (Tr. 10/1, 110)).
The significance of this is even
more
important
with the evidence
that Mr. Miller’s firm, Metro, was working on the re
timing
of signals at Rte. 25 and 64, to make the stop signal longer on
Rte.
25.
(C003995-003996
(Tr. 10/1, 127-128)).
Finally,
contrary to WMII’s assertion in
its
Memorandum,
evidence was presented from
more
than Mr. Miller and Mr. Coulter concerning Criterion 6. Daniel Lynch on behalf
of the
Village of Wayne,
testified and the following
people
provided
written
comment: City of St.
Charles; Village of
South Elgin; Jim W. Hanson,
II,
Mayor of South Elgin;
Joan Korinek; Robert
Morrow; Village of
Bartlett (providing a traffic engineering report concerning
Rte.
25
north to
West Bartlett Rd. not
meeting Criterion 6)(C002770-002780); Barbara
&
James
Bachman;
Jill
Schneeberg & Robert
Hayes; Sandy Lance; Roger Tilbrook; Mary Byrne; Barbara
Ross; Dan
Karais; and
Carol Hecht on behalf of FRESH. (C002533-2534, C002660-002710, C002743-
002754, C002763-00278 1, C002882, C002890-002903).
• Therefore based on the record, in the light most favorable to the Kane County Board, the
County Board’s decision is
not
against the manifest weight of the evidence, WMII’s appeal
should be denied; and the Kane County Board’s decision as respects Criterion 6 should be
43
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affirmed.
4.
The Kane County Board’s decision denying WMH’s site location request
on
the basis of
Criterion
8 should be upheld, as that decision was not against
the
manifest weight of the evidence
WMII argues that the Kane County Board’s decision as respects
Criterion 8 is against the
manifest weight of
the evidence as “[f]ailure
to provide information that is
either not required by
the statutory language,
or arbitrary,
does not cause a siting application
to be inconsistent with
a
plan.”
(Memorandum
p.
40). However,
WMII cites no legal support for its
argument and
WMII ‘ s
failure with respect to Criterion
8
was more than
not providing traffic characteristics
for
future growth.
WI\411
apparently seeks to establish a rule of law through this
case that limits the
consistency
of the Solid Waste Management Plan, but it
does not propose what limits
of
authority
or consistency to impose other than Kane
County’s requirement that an applicant
provide future traffic growth characteristics. Requesting the information
from an applicant is
completely
within a local government’s authority
under
Section 39.2 of the Act. There
is no
limitation and the
case law to date
supports a local government’s establishment
of procedure,
which includes what
information
the applicant should provide in a siting
application, at the local
siting process level. Further, a County’s authority
for
the Solid Waste Management Plan
comes
from State
Law, independent of Section
39.2,11
which also requires that the Plan be submitted
to
the Illinois
Environmental
Protection
Agency review and comment, and WMII has no
standing
in
this proceeding to challenge the authority of the County pursuant
to that law.
44
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Additionally,
even though a requirement for traffic characteristics
for future growth
cannot be relied
upon
by
the Kane County Board as the plain language
of Criterion 6 provides
for “existing”
traffic flows, it does not mean that this information is
not relevant to other Criteria
(such as
Criterion
3).
Finally,
WIvifi’
s
failure to meet its burden
on
proof
and show that the proposed
facility is
consistent
with Kane County’s
Solid
Waste
Management Plan is more extensive
than its failure
to provide
traffic
characteristics for future growth. For example,
WMII failed to provide
accident histories, as
required
by
Chapter
6, Figure 6.2, Item VI.E of the
Solid Waste
Management Plan Five Year Update, of the intersections of Rte. 25 and 64
(a key intersection for
Mr. Miller’s and
WMII’s proposed routing of transfer trailers
on Rte. 25 south of the proposed
facility) and of
Rte. 25 and West Bartlett Road (a key intersection for the routing
of transfer
trailers on Rte.
25 north of the proposed facility).
Therefore based on the record, in the light most favorable to the Kane
County Board, the
County Board’s decision is not against the manifest weight of the evidence, WMII’s
appeal
should be denied; and the Kane County Board’s decision as respects Criterion
8
should
be
affirmed.
5.
The
Kane
County
Board’s decision denying
WMII’s site location request
should be upheld, regardless of WMII’s compliance or non-compliance
of the
local siting ordinance
WI\411’s
last challenge to the Kane County Board’s decision to deny WMH’s site location
request,
is the reference
in
the
four-page
Walter document to provisions of Kane County’s siting
The
Local Solid Waste Disposal Act and the Solid Waste Planning and Recycling Act, 415 ILCS 15/1, etseq.
45
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ordinance, which
were ignored or not complied with by WMII. First, this
challenge by WMII
should be
denied, as it was neither identified in
WI\’ilI’
s Petition or its discovery
in this
proceeding as a
basis for its challenge; WMII has no standing to raise a legal
challenge to the
Kane County siting
ordinance (or Solid Waste Managements
Plan) in this proceeding; and the
IPCB
has no
jurisdiction to hear a challenge
to Kane County’s siting ordinance (or Solid Waste
Management Plan)
in this proceeding.
Second,
WvilI makes
and can make no showing that the references
to WMII’ s non
compliance
of these ordinance requirements somehow invalidates the
evidence supporting the
Kane County Board’s
decision.
Third,
without any legal authority, WMII attempts to limit
a local government’s ability
to require
information be presented in
a siting application through ordinance and argues that
a
requirement in the Kane County siting ordinance that an applicant identify
zoning
and land use 5
miles surrounding the
proposed facility
and a
requirement
that some truck directional distribution
information (entrance
and exit points of the County) are arbitrary.
This is not the appropriate petition for WMII’s challenge to Kane
County’s siting
ordinance.
The IPCB’s review in this proceeding is governed by Section 40.1 and
limited to the
review of the Kane
County Board’s
decision. WMII not only has no standing to raise
a
challenge
to Kane County’s ordinance (or Solid Waste Management
Plan) in this proceeding; the
IPCB does not have
jurisdiction
to entertain such a challenge in this proceeding; and whatever
objections
to the
siting ordinance
(or Solid Waste Management Plan) WMII had, it waived
when
it
filed its siting application purporting to have reviewed and been in applicable compliance with
those
provisions, and not raising any objection to them at that time. Residents Against a Polluted
46
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Environment, et al. v.
County
of
LaSalle,
PCB
96-243,
P.
8-9 (July 18, 1996).
Therefore
based on the record, in the light most favorable
to the Kane County Board, the
County Board’s
decision is not against the manifest weight
of
the
evidence, Wivill’s appeal
should be denied; the
Kane County Board’s
decision should be affirmed; and the
IPCB should
decline to rule on
either
Kane County’s siting ordinance
or its Solid Waste Management
Plan at
this
time, as this is neither the appropriate proceeding for such a challenge
and WMII has no
standing to bring
that challenge at this time.
6.
WMII failed to contest two Section 39.2 Criteria
found by the Kane County
Board to have not been met and, thus, WMII’s Petition must
fail on its face
WMII challenges Criteria
2,
3,
6 and 8. However, the Kane County Board’s
decision,
Resolution No. 02-431, denies on Criteria 1 and 5 in addition to those contested
by WMIL
Specifically, the
local hearing officer’s findings, which is one
of
two attachments
to Resolution
02-431,
finds
that WMII only met Criteria 1 and
5
subject
to
conditions.
Since the conditions are
only relevant from the perspective of identifying WMII ‘5 failures in proof in the situation,
such
as this, where the
County Board has denied the
site location request, and since conditions are
not
placed on a denial, the
“subject to” finding
by the local hearing officer means that the Criteria
are
not met, should the
conditions be rejected. In this case, the conditions
were “rejected” as the
proposed site was denied. Thus, Criteria 1 and 5 were not met by WMII and WMII
fails to
contest that in its appeal. Therefore, on its face, WMII’s appeal must fail, as WMII failed to
challenge two Criteria on which they were denied.
47
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IV.
CONCLUSION
For the
reasons stated above in Section III of this Brief, WMII’s fundamental fairness
arguments
should
be rejected and denied, and the Kane County Board’s proceedings and
decision in this
matter found to be fundamentally fair. Further,
for the reasons stated above in
Section III of this
Brief,
WMII’s appeal on the manifest weight of the evidence
should be denied,
and the Kane
County Board’s decision affirmed. Finally, the IPCB should decline to
take up any
argument raised by
WMII on the validity of or challenge to the Kane
County
siting
ordinance or
the Solid Waste
Management Plan, on the basis of lack of standing
and lack ofjurisdiction in this
proceeding.
WHEREFORE, the Kane County Board respectfully requests the Illinois Pollution
Control Board
to
affirm its decision
and deny the challenges raised by Waste Management of
Illinois, Inc.
Dated: May 12,
2003
Respectfully Submitted,
RESPONDENT, COUNTY
BOARD
OF KANE
COUNTY,
ILLINOIS
By:____
Jennifer J.
Sackett Pohlenz
QUERREY &
HARROW, LTD.
175 W.
Jackson, Suite 1600
Chicago, Illinois
60604
(312) 540-7000
Attorneys for
Respondent
Illinois
Attorney No. 6225990
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