BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC,

Petitioner,

v.

UNITED CITY OF YORKVILLE, CITY

COUNCIL,

Respondent.

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PCB No. PCB 07-146

NOTICE OF FILING

TO:

All counsel of Record (see attached Service List)

Please take notice that on June 12, 2009, the uodersigned filed with the Illinois Pollution Control

Board, 100 West Randolph Street, Chicagn, Illinois 60601, Petitioner's Post Hearing Brief..

Dated:

June 12,2009

Charles F. Helsten

Hinshaw

&

Culbertson LLP

100 Park Aveuue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully submitted,

On behalf of FOX MORAINE, LLC

lsi

Charles F. Helsteu

One ofIts Attorneys

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Petitioner,

v.

United City of Yorkville, City Council,

Respondents.

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PCB No. 07-146

POST.HEARING

BRIEF OF THE PETITIONER, FOX MORAfNE, LLC

Charles F. Helsten

Hinshaw

&

Culbertson LLP

100 Park Avenue

P.O. Sox 1389

Rockford,lL 61105.1389

815-490-4900

George Mueller

Mueller Anderson, P.C.

609 Elna Road

Ottawa, Winois 61350

815-431.1500

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TABLE OF CONTENTS

INTRODUCTION AND OVERVIEW OF THE CASE ................................................. 2

I. The Actions of the City Council and the Procedures Used In This Ca.e Were Not

Fundamentally Fair ...................................................................................................... 4

Standard of Review ............................................................................................................ 4

ARGUMENT ...................................................................................................................... 4

A. Statutory Framework .................................................................................................. 4

B. Factual Overview .......................................................................................................... 5

C. The Deliberative Process Privilege In IllInois ............................................................. 7

D. The Prehearing Meetings

..

~

....................................................

..................................... 9

E .. The Election Campaign ............................................................................................. 1.9

F. The Public Hearing .................................................................................................... 25

G. The Candid ..... ' April 15, 2007 Statement. To The Pre ........................................ 27

B. The Wildman

I~aw

Firm '5 Involvement ................................................................... 28

I. The Deliberations of May 23rd and May 24th, 2006 .............................................. 34

a. The Council

had Insufficient time to revi.w the evidence and Information

presented during the statutory public comment period ................................... 34

b. The

entire COUJIcii improperly relied on the secret Roth R.port. ............. 36

c. Several Aldermen based their decision on information outside the Record

and attempted to prejudice other Aldermen against the Application ............. 38

d. The Four Resolutions ..................................................................................... 41

Summary of the Evidence on Fundamental Fairness ................................................... 47

II. ALDERMAN SPEARS WAS NOT A CREDffiLE WITNESS ............................. 48

III. THE DECISION WAS AGAINST THE MANIFEST WEIGIn'

OF THE EVIDENCE ................................................................................................. 49

A. Standard of Review

.............................................................

~

.

..................................... 49

B. Introduction .................................................................

........

~

...................................... 50

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C. Facts Related to Criterion

(I)

("the facility is necessary to accommodate the

waste needs

of the

area iUs intended to serve") ................................................ 51

D. Criterion

(Ii):

("the facility is so designed, located and proposed to be

operated

that the pnblie health, safety and welfare will be proteeted',) ......... 55

E. Criterion (III): ("the facility is located so .8 to minimize incompatibility

with

the character of the surrounding area and to minUnize the effect

on the value of the surrounding property") ...................................................... 67

F. Criterion (iv): "( (B) ... the facility i. located outside the boundary of the

IOo-year noodplain") ........................................................................................... 81

G Criterion (v) ("the plan of operations for the facility is designed to

minimize the danger to the surrounding area from fire, spills, or other

operational accidents") ........................................................................................ 81

H. Criterion (vi) ("tbe traffic patterns to or from the facility are so designed as

to minimize the impact on existing traffic flows") ............................................ 83

I Criterion

(vii)

(requirements assoclated with facilities that will treat, store,

or dispose

of hazardous

waste) ........................................................................... 90

J. Criterion

(viii)

("if the f •• Uity is to be located in a county where the

county board has adopted a .olid

waste management plan consistent

with the planning requirements of the Local

Solid Wast. Disposal Act

or the Solid Waste Planning and Recycling Act, the facility is

consistent with that plan.") ................................................................................. 90

K.

Criterion (is) (all applicable requirements specified by the Board must

bave been met

If

the facility wUi be located within a regnlated

recharge area) ...................................................................................................... 99

L. So-called "Crlterion 10" ........................................................................................... 99

M. Summary of the Evidence on the Statutory Criteria •••••••••••..••..•..••..••.••••••••••.••••..

101

CONCLUSION .............................................................................................................. 104

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70598237v1 863858 62168

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Fox Moraine, L.L.C.,

Petitioner,

v.

United City of Yorkville, City Council,

Respondents.

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PCB No. 07-146

PETITIONER’S POST-HEARING BRIEF

NOW COMES the Petitioner, FOX MORAINE, L.L.C., by and through its attorneys,

Charles F. Helsten and George Mueller, and for its Post-Hearing Brief, states as follows:

INTRODUCTION AND OVERVIEW OF THE CASE

The Petitioner, Fox Moraine, seeks review of the May 24, 2007 decision by the City

Council of Yorkville, denying Fox Moraine’s application for local siting approval of a new

pollution control facility, a solid municipal waste landfill.

On September 26, 2006, the subject property, which had been located in an

unincorporated area of Kendall County, was annexed into the City and the City approved a Host

Agreement with Fox Moraine. On December 1, 2006, pursuant to Section 39.2 of the Act, the

Petitioner filed a 5,062 page application for siting approval for the development of a solid waste

landfill with the City of Yorkville. The landfill was proposed to be located in a rural area

adjacent to State Highway 71, near its interchange with the proposed Prairie Parkway interstate

highway. A lengthy public hearing commenced on March 7, 2007, during which the Applicant

established, through eight expert witnesses, that all of the Section 39.2 siting criteria were met.

There was, as is often the case, substantial opposition to the idea of a landfill among area

residents, with the principal opposition coming from Friends of Greater Yorkville (“FOGY”), a

citizens’ group, and Kendall County, which was considering a siting application from a

competitor. To complicate matters, April 17, 2007 would be election day, on which aldermen, as

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well as a mayor, were due to be elected. The laodfill hearings were near completion at the time

of the election, aod with anti-landfill sentiment running rampant in the community, the landfill

took center-stage during the campaign.

An

aoti-Iandfill slate of candidates was elected, including

Valerie Burd, who became the new mayor.

The Applicant presented a host of highly experieoced experts to testifY concerning the

proposed

site', exceptionally favorable geology, and the Applicant's state of the

art

landfill

design, while objectors presented testimony

by those with marginal, if any, landfill, eogineering,

some simply called "common sense," to oppose the request for siting.

Both the Hearing Officer, who has worked on over 30 landfill siting hearings in the past,

and the City's

Special Environmental Connsel (also an individnal with substantial siting

experience), who was hired to coordinate with the City's technical consultants to evaluate the

evidence, produced reports that found the Applicant met all of the statutory siting criteria, with

certain minimal conditions. Nevertheless, on May 24, 2007. staying true to their campaign

promises, the newly-seated City Conncil voted to deny siting. Realizing that reversal was likely

because

of the strong, unrebutted evidence presented by the Applicant, the Conncil focused most

of its attention on coming up with conditions to be applied if its siting denial was later reversed.

However,

in its haste to come up with conditions to attach to the denial, lhe City Council

neglected to come op with reasons to explain how it could deny approval for a site that landfill

experts had deseribed

as the best they had ever seen, espccially where both the Hearing Officer

and the Special Couosel had recommended approval.

Because

the City Conne;l's decision was clearly against the manifest weight of the

evidence, and because the process here was corrupted by local politics, and failed to comport

with the requirements of fundamental faimess, the Board should reverse the City Connell's

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decision and, based on the strength of the Record, find that the Applicant has met all statutory

criteria and that siting should

be granted.

I.

The Actions of the City Connell and the Procedure. Used

in

This Case Were No

Fnndamentally Fair.

A. StandardofR<lview

When a local siting decision is appealed to the Board, section 40.1 of the Act requires the

Board to consider the fundamental

fairness of the procedures used by the loeal governing body.

415

ILCS

5/40.1.

Where fundamental unfairness occurs, tainting the outcome, the loeal siting

decision must

be reversed.

E&E Hauling,

116 Ill.App. 3d 586, 451 N.E.2d 555 (2.

d

Dis!. 1993),

affd

107 Ill.2d 33 (1985). The standard of review for fundamental fairness is objective, and asks

whether a disinterested observer might conclude that unfairness or the appearance of impropriety

has tainted the

deCision-making process.

ld.

Unfairness will be fowld to occur if a disinterested

observer might conclude that the local decisionmaker has

in

some measure made a decision

based

on matters outside the record.

See Concerned Adjoining Owners v. PCB,

288 Ill.App.3d

565,680 N.E.2d 810 (3

m

Dis!. 1997).

ARGUMENT

A.

Statutory Framework

This appeal concerns review of the intctim siting decision of the Yorkville City Council

on May 24, 2007, which denied Fox Moraine's Application for siting approval. Pursuant to

§40.I(a) of the Act, the Board is vested with the responsibility to review the fundamental

fairness of a proceeding for local siting approval:

In

making its orders and deteRuinations under this section, the

Board shall include

in

its consideration ... the fundamental fairness

used

by the County Board or the governing body of the

municipality in

reaChing its decision ... (415 ILCS

5/40.1(a»)

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In making a decision on an application for siting approval, a local siting authority is

called upon

to

act

in • quasi judicial rather than a legislative manner.

City of Rocliford v.

Winnebago COWlty Bd.,

PCB 87-92 (November 19, 1987). Accordingly, City COWlcil members

must make their decisions regarding a siting application

based solely on the evidence before

them in the record, and may not

be biased in favor of or against the application. While the law

presumes that public officials act without bias, the presumption can be overcome when

"'a

disinterested observer might conclude that the administrative body or its members had in some

manner adjudged the facts as well as the law

of the

case

in

advance

of hearing

it."

Concerned

Adjoining Owners

v.

PCB,

28801. App. 3d 565, 680 N.E. 2d 810 (5

th

Dis!. 1997);

see also Waste

Mgmt. of Illinois, Inc.

v.

PCB,

175 lll. App. 3d 1023, 520 N.E. 2d 682 (2'" Dis!. 1988). Of equal

importance is the principle that collusion between

an applicant (or, presumably, an opponent)

and the

actual

decisionmaker, resulting in the pre-judgment of adjudicative facts, is

fundamentally unfair.

Land and Lakes Co. v. PCB,

319 Ill. App. 3d 41,743 N.E. 2d 188 (3"'

Dis!. 2000).

Urdike

many past cases which focus primarily on ex parte contacts, this is a case of pre-

judgment and collusion, in which an organized and bold opposition group, working in consort

with a highly ambitious politician, hijacked the decision-making process.

B. Factual Overview

AJ3 will be demonstrated in the text which follows, using citations to the Record, the City

of Yarkville had begun, as early as Spring 2006, to consider annexing property owned by Fox

Moraine so as to acquire jurisdiction over the landfill siting application which Fox Moraine wa,

expeeted to file. At approximately the same time, Kendall Land and Cattle Company, an affiliate

of Waste Management of Illinois, Inc., was negotiating a landfill Host Agreement with Kendall

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County, a competition that would eventually lead the County to actively campaign against the

Fox Moraine Application.

In September 2006, the Yorkville City Council held a meeting which was attended by a

substantial number of boisterous landfill opponents, at which the City aunexed the Fox Moraine

property (previously located in unincorporated Kendall County), approved an aunexation

agreement, and approved a Host Benefit Agreement

with

Fox Moraine. The meeting occurred

more than two months before Fox Moraine filed its siting application, and in the two months that

followed, the City Council would conduct a number of meetings to address prelimioary matters

relating to the anticipated landfill siting application, including the introduction

of the City's

technical experts to the public, as well as an explanation of the upcoming siting process. 'Those

meetings would also address more controversial subjects, such as vacating a road that transected

the proposed landfill site; the re-annexation of the subject property due to a previous notice

defect; and, perhaps most controversial. the City's defense of its Host Agreement tenns in the

wake of opponents' criticism that the County had reached a more favorable Host Agreement with

Kendall Land and Cattle Co.

Opposition attendance at these

meetings was both loud and boisterous. Two Aldermen,

Rose Spears and Valerie Burd, who had initially endorsed the concept of the City hosting a

landfill, began presenting themselves as highly eritical

of Fox Moraine and the "process," and

quickly emerged as

~'champions"

of the opposition. Aldennan Burd soon announced her

candidacy for mayor of Yorkville. At the same time, the more strident and vocal opponents

funned a citizen's group, Friends of Greater Yorkville, (hereinafter "FOGY") with intent to

mobilize opposition to the landfill. Unbeknownst to Fox Moraine, Alderman Burd's mayoral

campaign committee featured a number of FOGY founders and officers.

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Thereafter, Fox Moraine filed its siting application on December 1,2006, but by the time

the statutory public siting

hearing commenced on March 7, 2007, the opponents' erasade to

defeat Fox Moraine's Application was well underway. Valerie Burd

and her slate of

three

anti-

landfill aldermanic candidates were elected on April 17,

2007, shortly before the end of the

public

hearings. By then, the campaign of intintidation by the landfill opposition had caused one

alderman to resign, and several others to report threats made against them to law entorcement

officials. Mayor-elect Burd would eveutually crown her achievement by hiring a new law firm

before she was even sworn in as mayor, and would direct the new lawyers, without any

authorization from the City Conncil, to begin orchestrating a legal justification for the denial of

the Fox Moraine siting Application, so that by the time the Council was ready to begin

"deliberations" on the Application, its denial would be

a/ait accompli.

As

will

be demom;trated below, again utilizing detailed references to the Record, most of

the foregoing is undisputed, and, in fact, much of it comes directly from the mouths of the

participants themselves. The smoking gun in this case is an invoice from the Wildman law firm,

which dctails dozeos of hours spent on research to facilitate denial of the siting application, prior

to

Valerie Burd even being sworn in as mayor.! Ms. Burd's conduct in orchestrating the defeat

of the Fox Moraine application to advance her own political career is rivaled only by the

outrageousness

of her testimony, which is so patently false that the Board should feel completely

justified

in resolving all credibility questions against Burd and her allies.

C. The Deliberative Process Privilege

in

IIUnois

The Board has never reversed a local siting denial based on a finding that it was against

the manifest weight

of the evidence, although the Appellate Court reversed on that ground in

1 As discussed

in detail below, Burd located the Wildman firm and had them begie work on

defeating Fox Moraine's Application at least

11 days before she was sworn in as Mayor.

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Industrial Fuels and Resources

v.

PCB,

227 Ill. App. 3d 533, 592 N. E. 2d 148 (l"o;s!. 1992).

Moreover, the Board

has

not reversed a local deoi.l based upon a finding that the proceedings

were fundameotally unfair in almost 22 years, since

City 0/ Rocliford v. Winnebago County Bd,

PCB 87-92 (November 19, 1987).

In

reversing the local siting denial in

City qf Rocliford

.s

fundamentally unfair, this Board held,

inter alia,

that the County Board members in that case

made little real distinction

between their quasi-judicial functions and their legislative functions.

(Slip opinion at p. 19). fit so holding, the Board noted that the testimony of County Board

members indicated a lack

of familiarity with the statotory critaria, and with the siting committee

recommendations.

In

the two decades since

City 0/ Rocliford,

the deliberative process privilege, as that

concept is applied in Board decisions, has expanded considerably, to the point where there is

now litt1e doubt that questions regarding a

decision-maker~s

familiarity with the statutory

criteria, or familiarity with the contents of a committee recommendation, would be disallowed as

invasive of the debberative precess privilege. This is a highly problematic tread, inasmuch as

one cannot determine whether a decision-maker relied on information outside the record if one

cannot even ask the question in the first place, and is inherently unfair, inasmuch as the

deliberative process privilege has become a shield behind which decision makers hide to avoid

disclosure

ofthe fact that their deeision was not based on the evidence presented.

Fiually, while distinguishable on its facts, the principle announced

by our Supreme Court

in

People.

ex

rei Birkett v. City o/Chicago,

1841L 2d 521 (1999), that the deliberative process

privilege does not exist in Illinois, is completely applicable here, where bad faith and

govenunent misconduct pervade, and indeed lie at the very heart of the

decision~making

process.

At the public hearing conducted by the Board in this appeal, duriug April of this year,

Fox Moraine filed a Hearing Brief and Offer of Proof regarding deliberative process privilege,

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and the contents of said Brief and Offer are incOIporated herein by reference, in their entirety.

Because this is, at its core, a case that is suffused

with

bad

faith,

the Board is urged to revisit its

previous holdings on debber.live process. Additionally, the Board is asked to consider some of

the most damaging testimony and admissions by Mayor Burd and various Council Members at

the recent Board hearing, which were elicited in the fonn of offers of proof. Fox Moraine urges

the Board to find that this testimony should be properly admitted as evidence, and that it should

be considered alongside all the other evidence of fundamental unfairness.

In recent landfill siting appeals, there appeared to

be ample evidence presented by the

petitioners that at least some local decision-makers based their denial on legislative rather

than

quasi-judicial considerations, and in each of those cases, the deliberative process privilege was

allowed to remain intact:

Rochelle Waste Disposal

v.

City of Rochelle,

PCB 03-218 (Apr. I:;,

2004); Peoria Disposal Co.

v.

Peoria County Board,

PCB 06-184 (June 21, 2007). What

distinguishes those cases from the instant case is that

in

each of them, the evidence could be

construed to conclude that while the decision-makers may have been at times misguided and

mistaken, they acted, by and large, with good intentions and in good faith. Where good faith has

been in evidence, the Appellate

Court

has

declined to hold local adjudicative decision makers to

the same

standards as a judicial bedy.

Southwest Energy

v.

PCB,

275 Ill. App. 3d 84, 655 N.E.

2d 304 (4

th

Dist 1995).

What sets this case apart, however, is that the evidence here does not reflect good

intentions. Rather, it show the very worst of intentions, including evidence of an organized intent

to put personal, political aspirations ahead of official responsibilities.

D. The Prehearlng

Meetings

It

is vimtaIly axiomatic that pollution control facility proposals, especially landfillS,

generate loud, often virulent, public opposition. This is particularly true with green field

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landfills, where nearby residents frequently coalesce into a natural opposition constituency. It is,

therefore, not surprising that no new landfill has been built in lllinois since the Prairie View

Landfill

in Will County received siting approval more than a decade ago, and even Prairie View

was exceptional in that its location within the old Joliet Arsenal complex meant there was no

natural N.I.M.B.Y. constituency.

Compounding the problem, the internet has transformed

retirees and homemakers into

self styled anti-landfill experts, aod has allowed landfill opponents to become better organized

and more able to track and build upon each others' activities. Some have become semi-

professional itinerants, traveling from hearing to hearing to share their anti-landfill gospel.

2

In

this case, the landfill siting saga effectively began in the spring of 2006, when City

Attorney John Wyeth authored a series of confidential memos for the City Council, discussing

the City's strategy for annexing a number

of properties

in order to facilitate the City's acquisition

of jurisdiction over Fox Moraine's property, and, accordingly, the much-anticipated laodfill

siting application.

(pCB 07-146 Traoscript of 4-21-09 (hereinafter: "PCB Tr.") at p. 198). In late

August

2006, Charlie Murphy, Fox Moraine's project mao.ger, and James Burnharn, another

Fax Moraine representative, met with the City Council members to advise them of Fox

Moraine's intention to be annexed into the City for the purpose of filing a laadfill siting

application.

(PCB Tr. 4-22-09, pp. 177, 178, 206) Thus, Fox Moraine's intentions and

subsequent actions were no swprise to any

of the

aldennen.

At the hearing in the instant appeal, Fox Moraine entered into evidence as FM Exhibits

1-

9, the traoscripts of nine City Plamting Commission and City Council meetings that took place

between September 25,

2006 aod January 23,2007. All but the January 23, 2007 meeting (which

2 For example, Carolyn Gerwin from Pontiac and Keith Runyon of the many Kankakee landfill

siting hearings

both graced the Yorkville hearings with their participation. C7585-C7644,

CIl125-C1Il77.

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dealt with re-annexation of the subject property) took place prior to Fox Moraine', filing of its

siting application on December

1, 2006.

It

was during these meetings in the Fall of 2006 that

Aldermen Burd and Spears became the champions of the objectors' cause, and it was at this time

that the incessant and intimidating clamor

of tile objectors began to wear down the will of the

other Aldermen to act fairly.

On

September 25, 2006, tile Yorkville Planning Commission coaducted a public hearing

on the propused annexations. The transcript

of that hearing is 200 pages, consisting almost

entirely of public statements opposing annexation and the anticipated landfill it would make

possible. (FM

Ex. 1)3. One of the first to speak was Arden Plocher, tIlen a County Board

candidate aod subsequently a member of Burd's anti-landfill slate, who was later elected as a

Yorkville Alderman and ultimately voted no on the application. Plocher stated,

Since we already bit the bullet and we opened up the landfill

question, I just wanted to make a statement

to everybody out there.

You understood if this alleged proposal for a laodfill goes 1Ilrough,

the counsels on both sides which represent you, the tax payer, will

be using your tax money witlliegal ways to fight your tax money.

This is a way for Hanunan4 and anybody else to get what they

want on

your

dime. (FM Exhibit I pp. 36, 37).

Later

in

tile same meeting, Plocher spoke again, this time more directly stating his anti-

landfill feelings, explairdng that he does not want Yorkville to smell "worse than it already

does." (FM Ex. I p. 109).

Another frequent anti-landfill speaker at the Planning Commission meeting was TO<Id

Miliron, who would later emerge as the most strident landfill opponent. Miliron spoke seven

times during the meeting. (FM Ex. I pp. 18, 37, 45, 73, 77, 105, 132) The meeting was

interrupted by applause for

anti-annexation, anti-landfill questions or statements 32 times. (FM

3 Exhibits entered into evidence by Fox Moraine in the Board proceedings are referenced as

"FM" followed by the exhibit number.

4 The reference to Hamman is to Donald Hamman, majority owner

of Fox

Moraine.

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Ex.1 pp. 19,34,34,35,35,35,36,37,43,51,66,68,70,72,73,78,85, 85, 107, 108, 110, 112,

115,115,147,151,154,157,157,162,168,169).

The following night (September 26, 2006) the City Council met to consider the Fox

Moraine and related annexations, an annexation agreement with Fox Moraine, approval of a Host

Agreement, and an amendment to the pollution control facility siting ordinance. The transcript of

this meeting is 267 pages, and this meeting was interrupted by applause for anti-landfill, anti-

annexation sentiments

18 times. (PM Ex. 2 pp. 16,22,25,26,26,26,27,28,34,34,60,95,115,

150, 179,206,212, and 230). Again, a frequent speaker and recipient of applause was Todd

Mi1iron, whose remarks included the declaration that,

"[tlhe only emergency is

Mr.

Hanunan has

lost out

in the bidding competition to the current county landfill site process." (pM Ex. 2 pp. 24,

25) Additional excerpts from Miliron's comments

on September 26, 2006 appear in the

Amended Motion of Petitioner Fox Moraine, LLC for a Finding That Valerie Burd Was Not a

Credible

Witness~

previously filed with the Board; to avoid repetition, the motion, with its

quotations, is incorporated by reference herein and made a part hereof.

Also attending the

September 26, 2006 City Council Meeting was Kendall County

special environmental counsel, Michael Blazer, who opined at length concerning his opinion that

the County Solid Waste Management Plan prohibited siting of a landfill in Yorkville, and that

the proposed Host Agreement between Fox Moraine and Yorkville was inferior to the Host

Agreement contemplated between Kendall County and Kendall Land and

Cattle Co. (which he

himself, of course, had negotiated). Blazer also announced that the County intended to work to

oppose any attempt

to develop a landfill in Yorkville. (PM Ex. 2 pp 174-179) Blazer concluded

by telling the City Council to stop the landfill

by

voting against the annexation, urging the

Aldermen to "stop this runaway

train

now." (FM Ex. 2, pp. 178, 179).

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Alde:rman Rose Spears voted "no" on the annexation, "no" on the annexation agreement,

'''nol> on the Host Agreement, and "present" on amending the City's pollution control facility

Siting ordinance. When she testified at the Board hearing, she claimed she did not remember the

meeting, or whether the noisy crowd

at the meeting was opposed to annexation and a landfilL

(pCB Tr. 4-21-09, p. 45). Spears also claimed she could not remember voting on the annexation

issue.

(PCB Tr. 4-21-09, p. 44). Ms. Spears' testimony became even more incredible when she

testified under oath that she did not know that the annexation

of the Fox Moraine property was

connected to a possible landfill.

(PCB Tr. 4-21-09, p. 141). After extensive questioning, Spears

finally admitted

that she remembered the general subject matter of the annexation, but then

stated that she thought the annexation agreement

was illegal, and voted "no" on the Host

Agreement because it would require that

Sleepy Hollow Road be vacated. (PCB Tr. 4-21-09 pp.

71,69). However, Ms. Spears' testimony is entirely at odds with the transcript of that meeting,

which reveals that the

main thrust of the public speakers at the meeting (including Todd Miliron

and

County attorney Mike Blazer) was that voting no on the annexation would stop the Fox

Moraine

landfill project in its tracks.

By the end

of the September 26, 2006 mecting, the cards were on the table. The fact that

the

City would have to vacate a road to accommodate the landfill, as well as the fact that the

County felt it had a favorable Host Agreement with its proposed developer and would fight any

attempt by the City

to develop a landfill, were obvious to all concerned, including the poblic.

Alderman Valerie Burd, who also voted "no" on annexing the Fox Moraine property,

''no'' on the annexation agreement; and "no" on the Host Agreement on September 26; like Rose

Spears, testified under oath that she had no idea any of these items were related to a possible

landfill

(PCB 4-21-09 pp. 175, 178), although she, too (like Rose Spears), was able to remember

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meeting with Fox Moraine representative, Charlie Murphy, a month before casting her

September 26th votes.

Burd's failure

to connect the annexation process with a possible landfill is not only

contradicted by

the written record itself, including the language in the annexation agreement, but

is

also contradicted by the testimony of another Alderman, Joe Besco, who testified that he first

hecame

aware of the possibility of annexation when Valerie Burd called him to advocate for the

possibility

of obtaining landfill revenue for the City. (PCB 4-22-09 p. 154) Besco recalled that

Burd called

him

numerous times thereafter to talk about annexation, so that the City could realize

tipping

fee revenues from the landfill. (pCB 4-22-09, p. 156). However, Besco further testified

that

on the night of September 26, Alderman Burd was sitting next to him, and upon seeing the

large public turnout turned

to him and said, "Look at the large -- look at the crowd. What should

I

do?" (pCB 4-22-09 p. 158) He observed that from that momcot forward, Valerie Burd did.

180 degree switch from her prior position. Her political aspirations had found a way to take

flight.

What followed was a seemingly codleos series of meetings to debate the merits of the

City's Host Agreement vs. the County's Host Agreemcot, the vacating of Sleepy Hollow Road,

and the ultimate re-annexation of the Fox Moraine property due to an apparent technical defect

in

notice. As evidenced by the transcnpts, Mayor Prochaska allowed anyone to talk at virtually

any time, which allowed

the m.eetings to become a streaming, real-time forum for any and all

landfill opponents to attack Fox Moraine.

Six such meetings occurred betweeo October 10, 2006 and November 30, 2006, with the

transeripts adntitted at the hearing in this appeal as PM Exhibits 3-8, inclusive. The public

comments at the meetings generally constituted a relentless and continuing

ad hominem

attack

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00 the Mayor and the Aldermen fur having moved ahead with the annexation of the Fox Moraine

property in the

first place.

During the meetings, Rose

Spears and Valerie Burd rapidly emerged as the darlings of

the opposition speakers and crowd. As an anonymous audieoce member put it, during the

October

30, 2006 meeting, "Let me tell you something, the mayor and this Council has done so

many things deceitfully, how could we ever begin to trust this except for two of the Council

members." (FM Ex. 5 p. 49). To appease their new adoring tims, Aldermen Spears and Burd

embraced the idea that Fox Moraine

had

negotiated a Host Agreement that was unfavorable to

the City. More significantly, because vacating a road requires a super majority and approving an

annexation agreement only requires an ordinary majority, Spears and Burd suggested that Fox

Moraine had surreptitiously included the requirement to vacate Sleepy Hollow Road in the

annexation agreement, and that this rendered the annexation agreement void.

Such talk quickly

turned to threats oflitigation. Despite her other numerous memory lapses, Alderman

Spears was

clear in her recollectioo at the hearing in this appeal that the City felt it was at risk fur being sued

because it allegedly did not follow state statute pmcedures

in vacating Sleepy Hollow Road.

(pCB Tr. 4-21-09 p. 90)

On

the subject of that threat, at the October 24, 2006 City Council

Meeting, Spears stated,

I

just would like to add one thing. What I am hearing here is

regardless we are going to have a lawsuit against us.

The

petitioner may sue us or other people may sue is. I, I would take

the chance of having, if we were so threatened the petitioner sue

us, because clearly, I don't

think

this would stand up in Court

because again, it is against state statute. So

if we

have a choice of

two lawsuits, why don't we take what the best alternative is'! Vote

no. Protect our City. (FM Ex. 4 pp. 18S, 186)

At the previous meeting, Spears had stated,

~II

would just like to add that with our past

votes and our special meetings and everything, that it is still questionahle whether what we did

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was legal, even though we were directed that it was correct and legal.

I

still have questions about

that

and I am still researching that.,,5 (PM Ex. 3 p.).

Spears opined at the October 24, 2006 meeting that she had concerns about the Host

Agreement,

and further opined that, "I would like to add that I have found out that it is illegal to

put that in an annexation agreement, vacation of a road." (FM Ex. 3 p. 67). She later added,

"Whatis in the publicinterest? I really want to know. None of this." (FM Ex. 3 P 170)

After she voted no on vacating Sleepy Hollow Road, Alderman Spears' feelings about

Fox

Moraine were absolutely clear. At the October 30, 2006 meeting, she stated (referring to the

annexation agreement),

"We did have vacating Sleepy Hollow Road in there, and I believe that

really should not have been in the annexation agreement and I have stated this several times .. ,"

(FM Ex. 5 p. 161).

Alderman Bnrd joined with Spears in opposing the vacation of Sleepy Hollow Road and

in insinuating that the Council had been somehow tricked. At the

October 24,2006 meeting she

stated,

"And it's just logic to know that there is a problem here aad some bells should have gone

off.

We shouldn't just listen to advice of the attorney and follow like sheep down the road. I

mean

we have brains and we should think about this, and that's why I have no problem voting

against

this." (FM Ex. 4 p. ISS). Alderman Burd continued, "And I would like to point out, I

voted against every

sitlgle annexation that was leading up to this whole thing, all 6 of them and

then the

4. I voted against every single one of them and I reel that I have a clear line ton, of

defense why I am doing what I am doing." (PM Ex. 4 p. 168-69). While former Alderman (now

Mayor) Burd testified at the Board hearing that she never made

an anti-landfill statement before

the

final vote on the siting application, she did admit that when she voted against the Sleepy

5 Alderman

Spears was an avid ''independent researcher," as is discussed in the sections follow.

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Hollow Road vacation, she knew that vaeating the road was necessary to facilitate the laodfill.

(pCB Tr. 4-21-09 pp. 173, 175)

On January 23,2007, at the City Council meeting to re-annex the Fox Moraine property,

Alderman

Burd passed out writteo information explaining how Fox Moraine allegedly breached

the annexation agreement,

and why it should be required to renegotiate. (PM Ex. 9 p. 120).

Notably, when she testified at the Board hearing herein, Ms. Burd had absolutely no recollection

of either passing out the infonnation or of wanting to renegotiate any issue

with

Fox Moraine.

(PCB Tr. 4-21-09pp. 180,181)

One of the most outspokeo landfill opponents during this series of meetings prior to the

commeocement of the official siting hearing, was Ron Parrish, an officer of FOGY (PCB 4-21-

09 p. 154). Nine of Mr. Parrish's more noteworthy aoti-laodfill statements, made between

September

26, 2006 aod November

30,

2006 are detailed in Fox Moraine's Amended Motion for

A Finding that Valerle Burd was a Credible Witness, and need not be reiterated herein) except to

note that at the very first meeting of the City Council on the annexation issue, Parrish decried the

fact that

nothing had been done "to help tbis or any of us out on that road to stop this landfill

from going." (FM Ex. 2 p. 85).

It

cannot be over-emphasized how loud, strident and disruptive the opposition speakers

(particularly Miliron and Parrish) were during the nine meetings that preceded the start of public

hearings on Fox Moraine's siting application Devin Moose, the senior engineer for development

of the Fox Moraine application and director of the 81. Charles office of Shaw Enviromnental,

testified that he

has developed 60-70 siting applications and attended approximately 100 public

hearings.

(PCB Tr. 4-22-09 pp. 99-108). He described the opposition crowd he observed at the

Council meetings

and public hearings as the very worst he

has

ever seen. (pCB Tr.

4-22-09

pp.

111, 127). He observed, first-baed, the palpable effect that the disruptive behavior had on

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Council members, which was reflected in both their body language and their demeanor. (PCB Tr.

4-22-09 p. 130) He noted that Todd Miliron and Ron Parrish were particularly ill.behaved. (PCB

Tr. 4.22.09 p. 147). His observation was confirmed by Alderman Bosco, who commented on the

regular and forceful

attacks leveled by Miliron and Parrish. (pCB Tr. 4.21-09 p. 162). Similarly,

Fox Moraine project manager, Charlie Murphy, recalled that the annexation, Host Agreement

and

Sleepy Hollow Road meetings were constantly interrupted by anti-landfill dia1ribes. (PCB

Tr.4-22-09 p. 179). He also recalled the taunting and cackling of audience members directed

toward

some of the elected officials, while objectors regularly cheered and lauded certain

Council members, parricularly Rose Spears and Valerie Burd. (PCB Tr. 4-22-09 pp. 181-184).

Murphy recalled that police intervention was required duting at least one Council meeting. (PCB

4-22-09

p. 194). Mr. Murphy concluded that Mayor Prochaska attempted to keep control ofthe

meetings, but only suffered additional abuse for his efforts. (pCB 4-22-09 p. 186).

It

is telling to note the reaction of various Council members to this sordid behavior.

Aldennan Spears (for reasons that have now become obvious) had no problem with the unruly

opponents. (pCB

4-21.09 p. 106) Similarly, Wally Werderich, who admitted that he was one of

the co.founders of FOGY, and who did the legal work to get FOGY incorporated, testified at the

Board hearing that the public at the City Council meetings never acted inappropriately.

(pCB 4-

21-09 pp. 301, 303, 309) (Werdericb was elected as an Aldennan on Aprill7, 2007 aud voted

against the Application)

Valerie Burd

at least conceded in her testimony at the Board hearing that during the

aflnexation

aud the landfill hearings, her friend, Todd Miliron was periodically threatened with

."ction for his improper and unruly conduct. She acknowledged his disruptive

conduc~

but also,

tellingly, noted it did not embarrass her. (pCB 4.21.09 pp. 187, 188)

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While boisterous and disruptive conduct at public meetings is bad enougb, Ibe conduct of

Ibll opponents in Ibis case went far beyond being simply disruptive, It also took Ibe form of

tbreats and personal intimidation, Aldermen Bock and James, who were subsequently defeated in

thdr reelection bids, bolb received anonymous telephone !breats, (PCB 4-21-09 pp, 82, 83)

Alderman Munns, who ultimately voted against

Ibe application, and Alderman Besco, Ibe only

alderman who voted in favor, were also tbteatened via

telephone, (pCB 4-22-09 p, 159)

Aldermen Munns and Besco bolb testified

Ibey were subjected to 1UIltle-calling during Ibe

meetings,

(pCB 4-22-09 pp. 75, 163)

Mr,

Murphy recalled Alderman Leslie, who also ended up

voting against

Ibe application, had to file a police report at one point. (pCB 4-22-09 p, 198) The

tumultuous uproar culminated on March

9, 2007, Ibe Ibird nigbt of Ibe public heartng on Ibe

siting application, when City environmental attorney, Derke Price felt constrained to announce

publicly Ibat members of the City Council had received threatening phone calls at thdr homes

the previous

evening, (C0860) Clearly, the situation in Yorkville had spun out of control, and, to

their ultimate detriment, virtually the only ones who remained restrained during all

of this were

th" representatives of the Applicant, Fox Moraine LandfilL

E.

The Election Campaign ,

kJ

acknowledged by Yorkville City Administrator, Brendan McLaugblin, in a verified

pl"ading filed wilb Ibe Board in PCB 08-95, United City of Yorkville v, lllinoi. Enviromnental

Protection Agency and Hamman Farms, the 2007 municipal elections

in

Yorkville focused

almost exclusively on

lb. landfilL Mclaughlin verified Ibat:

The actions of Hamman relating to envirornnental concerns and its application for

landfill pennitting are the biggest issues

in

Yorkville in the Past 20 years.

Hamman has been Ibe subject of numerous public meetings and was the primary

issue in the City election and change in administration."

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(FM.

Ex. pp. 29, 30, PCB 4-22-09 pp. 51, 52)6 (emphasis added).

Despite

the foregoing admission by the City in a verified pleading, Valerie Burd

nevertheless testified iliat she was not an anti-landfill candidate for mayor. (PCB 4-21-09 p. 174)

This assertion

by Ms. Bnrd was initially corroborated by Alderman Munns, who originally

dooied Burd was associated with anti-landfill groups. (pCB 4-22-09 p. 77). Munns, however,

later acknowledged

that in his discovery deposition

in

this case he testified that Burd's open

association

with anti-landfill groups was ''public knowledge." (PCB 4-22-09 p. 78).

The most compelling evidence, however, lies in Valerie Burd's personal and political

associations, which are permeated

with landfill opponents. Ms. Burd acknowledged that Todd

M!liron, Ron

Parrish, and Wally Werderich were members of her campaign committee. (PCB 4-

21-09 p. 181). Alderman Plocher confirmed the involvement of these three individuals, and also

added

that he was a member ofBnrd's campaign committee, as was Ed Sleezer. (pCB 4-22-09 p.

18)

It

is not surprising Sleezer was never disclosed by Burd, because he testified as an "expert"

for FOGY concerning Criterion (iii). (CI3480).

FOGY,

as mentioned above, was the lead opposition group.

It

appeared by counsel,

cross-examined witnesses and

presented self-styled "expert" witnesses. (C08095) As an example

of the depth of FOGY's commitment to opposing the landfill, it filed over 1,100 pages of pre-

hearing "evidence," mostly generic material off the internet. (C. 6473-C. 7584).

Mayor Burd's campaign committee is

the heart of the organized effort to defeat Fox

Moraine's Application. Ron Parrish's frequent and vocal opposition statements at

the pre-public

hearing meetings have already been detailed in Fox Moraine's separate motion regarding Surd's

cr,edibility.

An

original officer of FOGY, Parrish also donated thousands of dollars to Ms. Bnrd's

6

'This information was received by the hearing officer at the Board hearing as an offer of proof,

but should be accepted as substantive evidence since it constitutes a damaging admission against

interest by the City ofYorkvillc.

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campaign in cash and kind, which she conveniently chose not to disclose in her campaign

contribution reports. (PCB 4-21-09 pp. 159, 196)

Wally Werderich acknowledged that

he spoke out in the meetings against anoexation and

th"t

he knew the way to stop the landfill was to stop the annexation. (PCB 4-21-09 pp. 302, 304)

He admitted mobilizing opposition through an email campaign, and acknowledged that with his

help,

FOGY was founded shortly after the aonexation hearing. (PCB 4-21-09 pp. 301, 308, 313).

Werderich also acknowledged there were many anti-landfill people

at the anoexation and related

meetings,

and that he decided to run for Alderman because he felt the Conncil was not listening

to

its constituents regarding their opposition to the idea of a landfill. (pCB 4-21-09 p. 316) He

admitted that

daring his campaign, he handed out literature th.t informed would-be voters that he

was the very first to question the City's annexation of the landfill property. (FM Ex. 28)

Alderman Plocher, as previously described, decried the smell oflandfills at the original

Planning Commission hearing on September 25, 2006. Like Werderich, his campaign was

funded with the help of contributions from Todd Miliron and Ron Parrish. (PCB 4-21-09 p. 311,

PCB 4-22-09 p. 18)

Todd Miliron's

striden~

anti-landfill vocalizing, both at the pre-hearing meetings and at

the public hearing, have already been discussed, and are detailed at length in Fox Moraine's

motion regarding Valerie

Burd', credibility. Parrish identified Miliron as one of FOGY's three

charier

members. (PCB 4-21-09 p. ISS) While he presented merely as an obstreperous and rude

loudmouth at the meetings, Miliron was actually a political insider, sitting on Valerie Bund's

mayoral campaign committee and assisting with the campaigns of anti-landfill candidates

Plocher and Werderich. Some of Miliron's statements were truly beyond the pale, such as his

statement that saying a landfill can be safe is akin

to telling a Jew that Auschwitz is snnrnler

camp. (CI3339). While Miliron relentlessly attacked Mayor Prochaska at the meetings, he took

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special care, at the October 30, 2006 meeting, to pay homage and extend his thanks to "Rose and

M:,. Burd." (PM Ex. 5 p. 146).

A tipoff that there was more to Todd Miliron than met the eye (or ear), was the

fu.ct

that

at the March 26, 2007 session of

the

public hearing on the landfill application, Miliron read into

the record a

previously confidential and undisclosed memo from City Attorney, John Wyeth,

dated April

6, 2006, regarding the City's strategy for annexing the Fox Moraine property.

(C133l6) Alderman Burd acknowledged releasing these memos

to the press a short

lime

later,

but denied giving them

to Miliron. (pCB Tr. 4-21-09 pp. 196-198). Notably, these confidential

m,:mos were released approximately three (3) weeks before the mayoral election.

It

is indisputable from the record that the most steadfast, vocal members of the laodfill

opposition joined forces

in

Valerie Burd's campaign committee. Ms. Burd's responses to

questions on this subject during the hearing in this appeal defy comprehension. She testified

uoder oath,

and unequivocally, that she did not know that Todd Miliron and Ron Parrish were

lal1dfill opponents. (pCB Tr. 4-21-09 p. 182). She asserted that she could not recall whether she

had ever heard Ron

Parrish speak out against the landfill. (pCB Tr. 4-21-09 p. 183). She stated

she

was never aware that Miliron opposed the landfill. (pCB Tr. 4-21-09 p. 184). She further

testified that

she did not know Wally Werderich was a founding member ofFOGY. (PCB Tr. 4-

21-09 p. 185). Such testimony truly mocks the Oath.

The most that Ms. Burd would admit was that she was opposed to the way the laodfill

P"DcesS was handled, and that she had campaign signs in close proximity to anti-landfill signs.

(pCB 4-21-09

pp. 191, 197). Interestingly, as the reigning mayor, she acknowledged the

presence

of ao anti-landfill sign on City property durillg the Board hearing in April 2009. (pCB

4-21-09 p. 239). One of Burd's committee members, Alderman Plocher, denied having his signs

in

close proximity to anti-landfill signs, but, on further examination, acknowledged he had

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admitted it during his deposition. (PCB 4-22-09 pp. 19,20) Plocher at least recalled the obvious:

that his

campaign contributors, Ron Parrish and Todd Miliron, publicly opposed the landfill at

the pre-siting hearing meetings. (pCB

4-22-09 p. 21)

Another

of Valerie

Burd's connections to the opposition groups was her relationship with

Dan Kramer, a local Yorkville attorney who appeared and participated actively throughout the

siting hearing on behalf

of Virginia Wells, a neighbor to the Fox Moraine property and opponent

of the landfill. (C08096). Valerie Burd acknowledged Kramer was her family attorney, but

testified she did not reruember that he represented an opponent at the public hearing, despite the

fact that he

Was present and cross-examining Fox Moraine witnesses almost every day. (PCB 4-

21-09 p. 188). Arden Plocher acknowledged Kramer was also his personal attorney, based,

in1lerestingly enough, on a recommendation

from

Valerie Burd. (pCB 4-22-09 p. i9).

While not a member of Burd's campaign committee, Alderman Robyn Sutcliffe did,

according to Rose Spears, run on a slate with Burd, Wally Werderich and Arden Plocher. (PCB

4-21-09

p. 84) Sutcliffe denied running on this siate, stating she did not know any of the other

candidates. (pCB 4-2i-09

p. 293).

In

her case, however, the evidence of pre-judgment comes

from her own web site, the

"Third Word Advisor," and published campaign materials for the

]llU'pOse of facilitating her election as Alderman. (PCB 4-21-09 p. 259, 260) Ms. Sutcliffe

produced four documents that she authored

aad published on ber web site, which were admitted

as PM

Ex.s 20-23. These documents reveal her ciear bias, pre-judgment, and political agenda:

"Yorkville citizens have become aware of the proposed iandfill

that is to be situated close to our city. An organization. Friends of

Greater Yorkville (F.Q.G'y.) was formed to, "fight City Hall" on

this particular

issue." (FM Ex. 20)

"A standing room only crowd toted ''no landfill" signs and

applauded on cue when their

hero, Rose Spears, poked boies into

the Fox Moraine's threatening

statements." (FM Ex. 2i)

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'''It

seems clear that Prochaska and several other Aldennen are

bending to the will or hidden financial incentives offered by Fox

Moraine." (FM Ex. 21).

"According

to

the Beacon News, both Aldennen from Ward 3

voted in favor of the first annexation after meeting privately

with

lawyers from the landfill owners. This, in my opinion, is unethical

and is cause for

new leadership." (FM Ex. 21).

"I am asking you to take action.

If

you want to stop the landfill you

can do several simple things

to make a difference. Vote for new

leadership

by voting for Robyn Sutcliffe on April 17, 2007! I will

vote against the annexation oflandfill

property." (FM Ex. 21).

"TItis is the big one. The annexing

of the

property that, ob we cantt

talk about its end use, may house a landfill. Many residents shared

their comments

with the Council and the erowd." (FM Ex. 23).

"Aldennan Burd said she had talked to a representative from the

Library. They

had met with the petitioner and they were now

satisfied with the agreement they had come to with the petitioner.

I

think we all know what this means. Cha Ching, Ch. Ching. Look

for a new library

in Newark?" (FM Ex. 23).

"A Record newspaper was given to all Aldermen and the mayor.

It

had a photo of the mayor with Don Hamman next to him. This is

before the vote

on the landfill.

I

have posted these photos and dates

for your analysis." (FM Ex. 23)

"There is a huge cut in Yorkville. This cut is bleeding. Lies,

deception and rumors. The Council has done wrong.

You h.ve

been caught doing wrong.

Do

the right thing. This is your

community talking to you. Please listen." (FM Ex. 23)

"We live in a republic. We elected you to represent us. We are

telling ynu to vote no.

It

is the voice of the people. You have to

abide

by the voice of the people." (FM Ex. 23).

"This is regarding the vacationing (giving away) of Sleepy Hollow

Road. Giving

this road to the petitioner was part of the first

annexation agreement Thafs right Giving

them

a road, no money

to change hands. This allows for road .ccess to the landfill." (FM

Ex. 23)

"The vacationing of the road is for the eventual purpose of making

money. What's a human's life worth?" (FM Ex. 23)

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Based on the foregoing, Aldennan Sutcliffe's agenda and pre-judgment are clearly

established. Although §39.2(d) provides that "The fact that a member of the County Board or

governing body

of the municipality has 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," the statements of Aldennan Sutcliffe while she was a candidate for office go far

beyond a mere expression of opinion. Those statements are inflammatory, and more importantly,

announce her explicit, unconditional promise to vote "no" on Fox Moraine's siting Application.

Sutcliffe further acknowledged in her testimony before the Board that her web site was

linked to the

FOGY website. (PCB 4-21-09 p. 264). Moreover, her refereoce to Rose Spears as

tho "hero" of the anti-landfill contingent is telling. As Sutcliffe acknowledged, opponents

cheered when

Spears spoke at meetings. (PCB 4-21-09 p. 273).

F.

The Public

Hearing

The public hearing on the siting application commenced on March, 7, 2007. While it is

obvious from the foregoing that many

of the candidates and aldennen had already decided how

th.ey would vote on the application, Valerie Burd and Wally Werderich did all they could to

undennine the statutory public hearing before it even began. Wederich stated as early as the

November 30, 2006 meeting of the City Council, that, ''TIle hearing process presents only one

side

of the story. That's the side of the people who want to put in the landfilL" (FM Ex. 9 p.

170). At the sarne meeting, Valerie Burd asked whether the City could pay for legal

representation for the "citizens groups," When told this would not be possible, she remarked, "So

it's kind of an unfair bias already against the anti people." (FM Ex. 9 pp. 27, 28).

The objectors' behavior at the public hearing continued

to be disruptive. (PCB 4-22-09 p.

164).

On

the first day, the record reflects laughter by the crowd when counsel for Fox Moraine,

in his opening statement, noted that an experienced appraiser would testify that the facility will

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not negatively impact sWTOunding property values. (C08112-13). Subsequently, the hearing

officer

had to interrupt connael's opening statement to admonish the audience to show some

courtesy. C08116; C08118).

Shortly after the

public hearings began, one of the aldermen, Dean Wolfer, resigned his

position.

Fox Moraine's project manager, Charlie Murphy was not allowed to testify as to why

Wolfer resigned precipitously, but the totality

of the circumstances clearly support the inference

that he quit because

of intimidation, the unruly behavior of the opponents, and threats received

by

Council members. (pCB 4-22-09 p. 195) Wolfer was replaced by acting Alderman Gary

Golinski, who first appeared

at the public hearings on March 14, 2007. (C09759)

Devin Moose, in his testimony before the Board, noted that in his professional and

experienced opinion, the public hearings were being intentionally dragged out and prolonged by

the opponents.

(PCB 4-22-09 pp. 105-110) This tactic appeared to be designed to ensure that a

fblal vote on the Application would not take place until after the opposition group's anti-landfill

candidates could be seated as aldermen. The f"ds bear Mr. Moose ont, and demonstrate that the

opposition's tactics were effective. Although the

hearing officer took frequent public comment

by citizens throughout the

hearing, including in the early stages, Fox Moraine was able to

conclude its case early 011 March 24, 2007. (CI290l) Thereafter, the public hearings continued

almost four more weeks, through April 20th. Hearings were suspended from April 4 through

Apri119

1h

,

in clear violation of the City" own Pollution Control Facility Siting Ordinance, which

requires that

"No recess may extend past five (5) days except due to the unavailability of a

suitable

forum for the hearing" (C 00748).

In

total, there were 24 sessions of public hearings

spread

over a period of 45 days. As anyone experienced

in

pollution control fucility siting

hc:arings can recognize

l

this was an extraordinarily long. drawn-out schedule. The delay,

m;casioned by the opponents and by the City itself, resulted in the post hearing public comment

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period not closing until after the spring elections, and approximately one week before the 180

day deeision deadline.

Ai;

painstakingly detailed in the argument below concerning manifest weight, the

evidence supporting the Application

could not have been more powerful and compelling. FOGY

aod the other objectors continued to baouner home, mostly in lengthy, repetitive, unsworn public

comment, the obvious:

that there were some homes within a mile of the site, and that it would be

visible

from a state highway. They also baounered home outdated myths and cliches,

e.g.,

that all

landfills leak, even though the unbrebutted expert testimony was that the proposed site offered

a

virtually perfect geologic setting. For example, Fox Moraine's hydrogeologist testified that the

site passed the

EPA's rigorous groundwater impact assessment without the liner system even

being constructed. (C09893). Apparently,

no one was listening except the Hearing Officer and

th" City's expert staff, all of whose findings were utterly disregarded by the City Council.

G .. The Candidates' April 15, 2007 Statements To The Pre ••

On Sunday, April 15, 2007, two days before the municipal election, the local newspaper,

the Beacon

News, ran a front page story entitled "The Landfill Lowdown - Yorkville Candidates

Weigh

In

on Touchy Trash Issue" (PM Ex. 13, taken as offer of proof to assist witoess

testimony). According

to the author of the article, each of the candidates was asked the same

question) "Would a safe, state compliant landfill be a positive, negative or neutral addition to

Yorkville?U 'The purported answer of Rose Spears was,

IIlf

it had nothing surrounding it for acres

and if it was proven to be safe as far as leakage and if it would have no impact on traffic, that

would be a

perfect scenario." Spears denied making the statement, and said she was misquoted,

allhough she never requested that the reporter made a correction or issue a retraction. (PCB 4-2 1-

09 pp. 100, 101).

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Valerie Burd was quoted as referring to the idea of a safe and compliant landfill .s an

Ollymoron, and has since admitted she made the statement. (PCB 4-21-09 p. 200). Robyn

Sutcliffe allegedly said,

"It

would be a negative addition to the city. I have no question about

that." Sutcliffe clahued not to recall making the statement. (pCB 4-21-09 p. 294). Wally

Werderich was quoted as saying that he didn't

think

the landfill was a good thing for Yorkville;

h" later acknowledged making the statement, but alleged it was taken out of context. (pCB 4-21-

09 p.319) Arden Plocher was reported as saying that he didn't

think

there was any such thing as

a safe and compliant landfill, but like Spears, also claimed he was ntisquoted. (PCB

4/22/09

p.

24).

8.. The Wildman Law Firm's Involvement

On April 17,2007, Valerie Burd was elected mayor. Her campaign committee members,

Wally Werderich and Arden Plocher, were elected Aldermen, as was Robyn Sutcliffe. Rose

S:pears was also successful in her bid for re-election.

On

the day of the election, the City

Attorney was John Wyeth, and the special independent counsel, who had represented and

worked with the City's expert staff throughout the landfill sitiug process, was Derke Price. Price,

who possessed extensive sitiug experience, had

been specifically brought in to assist the City in

the landfill projec'l, and, according to Alderman Besco, Price was initially located and

I'<,commended by Valerie Burd. (pCB 4-22-09 p. 159)

It

is ironic that while Burd, in the face of

overwhehning evidence to the contrary, maintained she had no bias against Fox Moraine, she

testified that she felt prior to the start of the sitiug hearing that Price was biased

in

favor of Fox

Moraiue. (pCB

4-21-09 p. 192)

Because Mayor Burd was present at the siting hearings, heard the evidence, and could see

that the evidence was overwhelmingly contrary to her predisposition, it was clear that to achieve

her objective she would have to find a way to counter the uruebutted testimony of two experts

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that this was the best geologic and hydrogeologic setting they had ever seen. (C09874; CI1544).

She

had

four committed "no" votes, no matter what the evidence showed, but she clearly needed

someone who could appear credible, and petbaps even neutral, while recommending a uno" vote

by the Council. For that she turned to the attorneys at Wildman.

Valerie

Burd was sworn in as Mayor on May 8, 2006, three weeks after her election, but

she has acknowledged that

after her election and before being sworn in, she contacted the

Wildman law finn about representing the City. Burd, however, has adamantly maintained, in

sworn testimony, that the Wildman firm was not hired to do any work for the City prior to May

8,2006. (pCB 4-21-09 p. 204) She insisted she never gave the Wildman finn any direction

regarding the scope or direction

of their work before May 8

th

, and that she never authorized any

charges

by the firm prior to May 8th. (PCB 4.21.09 pp. 205.209).

In

fact, Burd freely

acknowledged she had no authority to engage the

Wildman finn before sbe was sworn in on May

8,2006.

The minutes of the City Coonci! meeting of May 8, 2006 were adntitted as PM Ex. 17.

They succinctly tell the stary of the City Council's appointtnent of a new city .ttorney:

"Mayor Burd reported that she would like to appoint Mike Roth

from

Wildman, Harrold, Allen and Dixon to be the interim City

Attorney.

She entertained a motion to accept this firm. She

indicated that the City Council had information before them and

this will be the short term. She explained that she interviewed

several finns and felt this one would best suit

Y

arkville's short

term needs. She noted that Attorney Roth was the former city

attorney for the City

of Naperville, and she asked for the City

Council's vote

of confidence. So moved by Alderman Munns,

seeended

by Alderman Plocher.

Alderman Munns questioned

if Attorney Roth's fees would be

comparable to the previous city attorney. Attorney Roth explained

that the proposal is

for

a fixed number

of hours

starting at 50 hours

per month for a fixed fee." (pM Ex. 17 p. 3)

The motion carried.

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Subsequently, the City presented Fox Moraine with an invoi .. from Wildman, Harrold,

,Allen and Dixon, demanding payment of the invoice, but, interestingly enough, the invoice tells

a contradictory story concerning the date and scope of the fimt's engagement, and squarely

refutes the testimony

of Valerie Burd, The Wildman invoice was admitted as FM Ex. 16, and has

heen the subject of considerable controversy between the parties in pre-hearing motions before

this Board.

A!J a threshold matter, the May 8th minutes reflect that the City Council's action was

lintited

to the appointment of Michael Roth as interim City Attorney, for a fixed number of

hours, starting at 50 hours per month for a fixed fee.

7

However, the invoice from Wildman in

the amount of$96,119.73, for the period April 27, 2007 through May 29,2007, is not limited to

50 hours.

It

is, in fact, for 251 hours oflegal services, commencing 11 days before Burd was

sworn in

and Roth was even appointed as City Attorney. Mr. Roth stayed under his 50 hour

allotment, with his component representing only

26.5 hours, but the three (3) other attorneys,

who were never appointed, combined for the balance, with Leo Dombrowski and Anthony Hopp

each billing

for almost 100 hours oftime. The inescapable inference is that the amount and scope

ofthe work performed by lawyers

at Wildman for the period in question is far beyond what was

authorized by the City Council,

and what was represented to the City Council by Mayor Burd.

The second,

and equally troubling aspeet of this invoice, is that it reflects several dozen

hours

of legal services performed by lawyers at the Wildman firm, primarily Anthony Hopp and

Leo Dombrowski, prior even to the City Council's appointment of Michael Roth as interim City

Attorney

and prior to Burd's swearing-in. Notwithstanding Mayor Burd's protestation to the

contrary, it seems incomprehensible that a law firm such as Wildman, Harrold, Allen

&

Dixon

would dive headfirst into a project committing dozens

of hours, reflecting thousands of dollars

7 The amount of that fixed fee is unknown.

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worth of attorney time and resources, before ever being retamed by the client.

It

is equally

incomprehensible that that law firm would know exaedy the direction its efforts should take

without receiving

any prior guidance from the client. Moreover, although the City Council

merely appointed Michael Roth to act

as

interim City Attorney, none of the work reflected on the

S96,119.73 invoice represents the kind of work or tasks usually associated with the role of a City

Attomey. Rather, the work listed on the invoice

was

directed solely toward the landfill proposal,

with the majority of the work being directed toward preparation of a report analyzing the

{:vidence. Most importantly, the work delineated on the invoice demonstrates that it is clearly

directed toward denial of the application. For example:

• On

April 28, one day alIer the work started and before any evidence had been

reviewed, an attorney was reviewing and analyzing case

law

to detennine the

standard of review to be applied by the PCB, and to detennine what may be

considered improper contacts. This

signals the beginning of the new

administration's strategy for defending against an appeal from a siting denial.

• The next item on the invoice is a review of objections to the siting petitions

and exhibits in support of objections, demonstrating that the attorneys were

building a case for denial. rather than reviewing the evidence from a neutral

• The next item on the invoice includes work for a memorandum on the scope

of improper contacts.

• The review of

actua1

evidence began on April 30

th

,

with attorney Dombrowski

looking at evidence presented in opposition to landfill Application. At this

point there is no indication the Application itself had ever been reviewed, or

that evidence in support of the Application had been reviewed. Since §39.2

places the burden

of proof on an Applicant, the logical first step in an

impartial review begins

with

an examination of the Application, and moves

onto a review of the Applicant's evidence

in

support of the application.

In

this

case, the Wildman attorneys were doing just the oppOSite, focusing on

objections, evidence in opposition, and Appellate issues that would likely be

raised by the Applicant upon denial.

• The next invoice item deals

with

discussion and deliberations regarding

recommended findings and a decision. The Yorkville siting ordinance in this

case called for the preparation

of recommended findings by both the hearing

officer (Larry Clark) and the special environmental counsel (Derke

Price).

There was no legitimate reason to prepare an additional set of proposed

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findings unless it was contemplated they would be needed to contradict the

anticipated recommendations

of approval from Clark and Price .. Notably, the

report from Special Environmental Counsel

Price would contain the input of

the City's technical staf!; who had been retained for their expertise in the

substantive subject matter

of the siting application.

It

is unclear what the

Wildman attorneys could add

to this analyais, inasmuch as they possessed no

particular expertise in the area and did not participate in the siting hearings.

• On May 8th, Attorney Roth billed for work on strategies concerning finality of

decision, disconnection of

tenitory

and development of the City's decision.

Disconnection of territory, as a matter of law, would

only

become an issue if

the Application was denied. Accordingly, the reference to finality of decision

in this billing item is, in reality, a reference to finality of denial.

Shockingly, all of the foregoing described work was perfonned and iteroized prior to

Valerie Burd ever being sworn in as mayor, and prior to the City Council's limited appointment

of anyone at Wildman to perform work for the City. The Wildman lawyers clearly knew exactly

what they were supposed

to accomplish before they were ever hired, and by the time Attorney

Roth

was formally appointed, albeit for a much more limited scope of work, the firm's efforts to

orchestrate Burd's goal of a siting denial were well underway.

Because Ms. Burd denied giving the Wildman lawyers any direction on the scope of their

work prior to their actual appointment by the City, it is hardly surprising that she has,

conveniently,

no recollection of her meeting with them on April 30, 2006, although Anthony

Hopp billed five hours

($2,175.00) for preparation and conduct ofa meeting with the Mayor and

City Administrators that day, and also for post-meeting work based on results

of the meeting.

Mr. Hopp's description

of the time clearly implies he received direction from the City, or from

Ms. Hurd) that day, more than a week before his partner was hlred on an interim basis.

For the next several weeks, the Wildman lawyers, as evidenced by FM Ex. 16, worked on

reviewing the evidence and preparing a report reviewing and analyzing the same. Again, it is

curious that such a report was being prepared at a time when, pursuant to the ordinance, two

others reports were being prepared - pursuant to the City ordinance - by individuals with 50

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years of collective siting experience who actually attended the siting hearings, namely the

Hearing

Officer and Special Environmental Counsel. The invoice contains regular references

to

work related to appeals from siting decisions,

and

as early as May 14th, a full week before the

record was even closed,

and

well before the Wildman lawyers had reviewed all the evidence,

Attorney Roth was already preparing the Resolution on the siting decision.

The Wildman attorneys spent considerable time

analyzing and reviewing the

memorandum

of Mr. Price and the City's expert staff. References to analysis ofth. staff report

'"" contained in attorney Dombrowski's billing for 8.25 hours on May 21st, Mr. Roth's billing of

2.7 hours on the same date and Mr. Hopp's billing of 7.0 hours on May 22'd. Mr. Dombrowki

then billed

10.50 hours for work on May 23"', for review

and

analysis of the Hearing Officer's

findings and recommendations,

It

is curious to see such extensive legal effort spent on review

and analysis of the recommendations prepared by the City staff and the Hearing Officer.

In

light

c,f the overwhelming evidence presented by the Applicant, including the massive clay layer

present under the site, a proposed operator who had perhaps the best environmental compliance

record in the state, and the state-of-the-art design components of the Applicant's proposal, Burd

could clearly anticipate that the Hearing Officer, who had been through thirty siting hearings,

and Special Counsel, who had an expert staff that would reeogulze the quality

and thoroughness

of the Application and evidence, would recommend approval. Such recommendations would

have to be

undemrined to defeat the Application, and Burd almost certainly realized she would

need a massive, hnpressive-sounding report (which ended up costing almost $100,000 to

prepare) to counter the strong recommendations

of the Hearing Officer and the City's technical

.'perts to approve the Application.

Whether one looks to the individual billing items in the Wildman invoice, or the

Wildman report as a whole, the conclusion is obvious: the Wildman attorneys were working

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under clear direction as to the desired outcome, and the invoice documents the attorneys' step-

by-step construction

of a case for denial and defense of the inevitable subsequent appeal.

I.

The Deliberation. of May 23rd and May 24th, 2006

Eventually, it was time for the (new) City Council to meet and deliberate. The City

Council met in open session on May 23, 2006, in sessions that were, fortunately, transcribed.

Those transcripts reveal that

it was Valerie Hurd's show, and she was very obviously in charge.

Neither the hearing officer,

Larry Clark, nor special environmental counsel to the expert staff,

Derke Price, were present for the deliberations, much to the consternation

of some of the

Aldermeo. When pressed

by several Aldermen to explain why Clark and Price were not there to

assist the

Council in deliberations, Burd snapped, "The hearing officer is no longer

in

charge.

That

is why he is not needed tonight.

It

is back under the Mayor and the Mayor is the one who is

back and running the

meeting." (C18541).

BW'd would later testify that she couldn't remember whether Clark or Price had been

invited to the deliberations. (pCB 4-21-09 pp. 227, 228).

It

is, however, Oalve to believe BW'd did

oot

take steps to cosW'e that Clark and Price would not be present to assist. Once she was sworn

in

as Mayor, neither Clark nor Price was effectively ever heard from again, except for submittal

of their reports and recommendations, which were mandated by the local ordinance.

With the two seasoned, knowledgeable experts out

of the way, Burd no longer had to

worry that someone with expertise might point out that what FOGY called "expert" evidence

was actually nothing more than unqnalified conjecture. What followed dW'iug the rest of the

deliberations that night and during their conclusion

on the following night, May 24, 2007, is so

fraught with error that it is most easily broken down into individual categories.

a. The Counell had insufficient time to review the evidence and information

presented during the statntory public comment period.

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The City Council received the Hearing Officer's Report, Price's Report, and Fox

Moraine's post-hearing submittal, on the night

of their deliberations. As noted above, the City

Conncil had

to begin deliberating just two days after the close of the public comment period

because of the impending decision deadline, which was fast approaching due to the numerous

delays occasioned by the opposition and the City, which were used to drag out the proceedings to

ensure that the decision would be made by the incoming administration, elected on April 17.

Alderman Munns opined that the statutory siting process was unfair to municipalities,

because average citizens must make decisions about technical subject matter in which they have

no expertise, and he also complained about the unfortunate absence of the Hearing Officer,

whose experience could have helped the Council in its deliberations, stating, that "[i]t seemed

ludicrous that the person with the most experience in landfill hearings, over

30 sitings as

testified, isn't here to give his opinion orally." (CI2904). Mayor Burd chided him, suggesting, in

response to his concern over the lack of time to review the

newly~received

reports and the

absence of expert guidance in working through them, that he should just "have a little confidence

in

[his] own opinions." (CI8560). He would soon deery the night's proceedings, which featured

regular outbursts

from the crowd that had gathered, deseribing the proceedings as ". circus" and

bemoaning the fact that, "TIris is not deliberations." (CI8560).

In

all, five aldermen, Besco, Spears, Leslie, Golinski and Munns all expressed serious

concern about their inability to review the recently-received material and to therefure make it a

part

of their deliberations, and all expressed a desire to continue the meeting. (C18538-40). As

Munns put it, why had the City paid Derke Price and Larry Clark $50,000.00 each for their

services, only

to have their findings disregarded during deliberations? (CI8538). When a motion

was made and seconded to continue the deliberations, Mayor Burd refused to allow debate. The

vote on the motion was

4

to

4,

with Spears voting "00/' notwithstanding her prior expressions of

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concern over having insufficient time to

review

the recently-received material. Burd, of' course,

broke the tie by voting "no," so the deliberations would proceed. (CI8541)

While

it

is clear that decision-makers may not consider matters outside the evidence in

reaching their decision, logic suggests that the converse, namely, a failure (or in this case

inability) to cnnsider the evidence similarly renders proceedings fimdarnentally unfair.

In

this

case, a majority of the City Council members indicated they needed time to read and consider all

of the evidence. Failure to grant that time, which resulted from Mayor Burd's tie-breaking "no"

vote, rendered the final decision fimdarnentally unfair.

b. The entire Council improperly relied on the secret Roth Report

The Wildman invoice makes clear that Mayor Burd had directed the Wildman attorneys

to prepare a report and a set

of recnmmend.tions to cnunter the Hearing Officer and City staff

technical reports, which Burd could clearly anticipate would recommend that siting be granted.

(FM Ex. 16).

Mr. Roth's billing on May 23, 2007, the night the deliberations began, referenced

his preparation

of the "final version of legal memorandum analyzing evidence and findings and

recommendations." This has come to be known in pre-hearing motions as the

"Roth Report," and

the Hearing Officer previously ruled that the secret Roth Report is not subjeet to disclosure, due

to attorney-client privilege.

The existence of the Roth Report was confirmed by the Aldermen on the night of May

23,

2006. In addreasing Michael Roth, Alderman Munns referred to "Derke Price's and your

stuff and

Clark's." (CI8538) The fact that Alderman Munns considered the Roth Report when

making his decision is evidenced

by his further statement to Mr. Roth, as follows: "Lets say my

decision was to go one way, but then I read your comments, Derke Price's and Larry Clark's

cnmments and it changes my criteria ... " (C18540). Alderman Munns further stated, "To start

with, just glancing at the memos we got today from

Mr. Roth and Mr. Ptio. and Mr. Clark, there

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is highly conflicting opinions on a couple criteria, two attorneys say yes approve

with

conditions.

and one says no." (CI8550)(emphasis added). Munns' statement is critical. It shows that the

Roth Report was clearly elevated above mere legal edvice, and was viewed instead as

substantive analysis of the evidence, being given the same weight and reviewed on the same

basis as the Price and Clark Reports.

What Alderman Munns' statement confirms is consistent with what can be readily

inferred from the Wildman invoice. The Board has long held that local decision-makers are

entitled to rely on reports and proposed findings of fact prepared by their consultants. However,

these reports and proposed findings have always been made available to the public and

to all the

parties. Here, the Wildman invoice makes clear that preparation of the Roth Report involved

extensive effort by the Wildman attorneys

in

reviewing the evidence and drafting written

findings regarding th.t evidence

(see, e.g.,

FX 16, entry of

5114/07:

"Continue review of

materials related to analysis of "Need" criterion";

5114/07:

"Review and analyze applicant's

traffic studies"; 5/15/07: "Continue to review materials related to incompatability and property

values ... "; 5/18/07: "Continue to work on incompatability section of submission"; 5/20/07:

'IContinue work on incompatability section of written submission''), The Roth Report was

researched and

drafted

as a substantive review and critique of the evidence, and was relied upon

by the Alderman in much the same way they considered (or should have considered) the Clark

and Price Reports. However,

the

Roth Report has been maintained as a closely-gnarded secret,

and no one will ever know whether it misstated tacts, made references to matters outside the

record, or included other prejudicial and unfair material. Notably, the resolution drafted afinr-

the-fact by the Wildman lawyers is completely misleading here, in that it reflects tbat the Council

received and considered the Clark and Price Reports, which were completely ignored, but makes

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no mention of the secret Roth Report, which was Burd's counterpoint

to

the recommendations of

Clark and Price.

'The City has argued that the Roth Report is privileged atlmney client communication,

however

this is true only in the most superficial sense, and it is functionally no different than the

Price Report and the Clark Report, which might also be referred to as attorney client

oomm1lllication8. As such, the Roth Report represents not legal advice, but rather,

it

represents,

or purports to represent, a substantive review and critique

of the evidence presented at the

hearing, albeit with a hidden agenda.

It

should, therefore, have been disclosed, and the City

Council's reliance on this secret document when making its siting decision renders the

proceedings fundamentally unfair.

Not surprisingly, Mayor Burd, who commissioned tbe Roth Report, testified that she

didn't recall that there was a

third report (in addition to the Clark and Price Reports), but that she

"hoped" there was. (PCB 4-21-09 p. 229) Likewise, Alderman Spears conveniently could not

recall any reports other than the Clark and Price Reports. (pCB 4-21-09 p. 114)

c, Several Aldermen based their decision on information outside the Record and

attempted to prejudice other Aldermen against the Application

A decision based on information outside the record and never received into evidence is a

classic example

of fundamental wlfaimess. Mayor Bard summed it up nicely at the end of the

deliberations on May 23, 3007 when she said to the Aldermen, "Several of you haven't made a

decision

yet, several of the other Aldermen have already appeared to make a determination based

on their own research and information they

have gotten." (CI8560)(ernphasis added). Reliance

on independent

research

l

then, rather than on evidence in the record was,

by

Mayor Burd's own

admission~

a hallmark of the City Council's decision-making process.

'The worst offender (in terms of relying on ''independent research") was Rose Spears,

who by her own admission during the prehearing meetings and public hearings was a diligent

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"I~searcher"

of the matters at issue.

In

expounding on her reasons for finding that none of the

substantive siting criteria had been met,

Spears made reference to a number of supposed facts

that were never part

of the evidence

in

the record. Spears stated that criterion (i) was not met

because EPA records indicated adequate landfill availability for at least 9-15 years. (C18544).

No such evidence is in the Reoord, and particularly not with regard

to the service area proposed

by the applicant.

Spears also proposed detailed teclmical standards for leachate storage tanks,

suggesting that they should be

built to the A WW A D-IOO or the API-650 standard. (CI8546)

There is nothing about alternative leachate storage

tank

design and material standards in the

evidence, and the fact that Aldennan Spears opined upon such arcane, technical information

indicates conclusively that she had been doing more than a little of her

own

research. Alderman

Spears also suggested that vinyl chloride, found in several landfills, has no known safe level for

humans. (CI8547) Again, there is no evidence

in the rcoord to this effect, and, rather, the

unsworn statement offered by some objector public commentators

l

such

as

Keith Runyon. was

that a closed landfill had vinyl chloride exceedances in some mouitoring wells, thereby implying

tilat there is a safe and acceptable level. (CI0976).

Lastly, Spears opined that the landfill design was unsafe because it did not contain a

double composite liner system with a leak detection component. (CI8S46).

In

fact, the only

evidence at the public

hearing was in direct opposition to what Alderman Spears asserted, that

evidence being that double composite liner systems

with. leak detection system are inferior to

the proposed design. (C11346;

CI15l2;13; C11520). Notably, Alderman Spears .Iso

misunderstood the burden of proof with respect to at least one substantive eriterion, traffic.

An

applicant is only required to "minimize" the impact on existing traffic flows but Ms, Spears

""knowledged in her testimony before the Board that she believed any impact on traffic is

enough to defeat the criterion, and any additional traffic generated

by a landfill is unacceptable.

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(PCB 4-21-09 pp. 72, 75). Again, this "conclusion" was not based on evidence at the hearing,

and would, of course, impose an impossible burden on an applicant. Clearly, then) no proposal

could meet the Spears standard on the traffic criterion, which conflicts directly with the statutory

requirement of minimization.

Alderman Werderich also relied on infonnation outside the Record, alleging there had

been citizen complaints regarding Don Hamman's "composling" operation. C18557). Such

alleged complaints were not part of the Record. More importantly, Werderich, himself an

attorney, tried to prejudice other members of the Council against Fox Moraine's application

by

misstating the law. Section 39.2(e) of the Act specifically provides that,

"In

granling approval

for a site, the County Board or governing body of the municipality may impose such conditions

as may he reasonable aod necessary to accomplish the purposes of this section ... " (415 ILCS

5/39.2(0)). Showing utter disdain for this legislative mandate, Werderich told his fellow council

members on May 23rd, ''What should be taken into consideration is the fact that the application

must be judged on its

face, not based upon the conditions which are suggested to be included by

either Dorke Price or the hearing officer. Accordingly, when reading through that, please take

that into consideration." (CI8557-58)

Since Fox Moraine was not entitled to inquire into what the City Council members took

into consideration in making their decision, we will never know how many council members

incorrectly followed Wederich's admonishment We do, however, know that Aldermao Munos

knew that the Clark aod

Price Reports recommended approval with conditions, that these reports

confirmed what he had heard

in the evideoce, aod that they contained nothing he disagreed with.

(PCB

4-22-09 p. 82, offer of proof during examination of Alderman Muons). Although he

equivocated somewhat, and appeared to have joined the Burd

team in his testimony at the Board

hearing (initially attempting to deoy his deposition testimony that

Valerie Burd's association

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with opposition groups was a matter of public knowledge), Aldeman Munns' previous good

f,dth and honesty have not been questioned by Fox Moraine.

In

hls public statements during the

d"liberations on May 23,

2006, Munns never stated that any of the siting criteria had not been

met, and affinnatively stated that a number of them were met with conditions. (CI8550-51). On

the following night, immeddately before the final vote, Alderman Munn declined to add anything

to hls previous comments. C18607)

In

this context, the incorrect admonition of Alderman

\Verderich to vote 'no' if a siting criterion could only be met with conditions, combined with

Alderman Munns'

"no" vote despite his testimony that he disagreed with nothing contained in

the Price

and Clark Reports, is distorbing, and throws the entire decision making process into

question.

Alderman Plocher also relied on infonnation outside the Record. In his case, the outside

information related

to the unfortunate illness of his brother.

In

Plocher's comments during the

deliberations on May 23rd, he incorrectly recalled that,

"The applicant said that the landfill

leaked," and then went on to say,

"And, secondly,

I

could also never personally jeopardize my

friends

and the residents of this community on any health issues as

someone has done to my family.

N.

you all - as all probably

know,

I

live with my brother, Jimmy Plocher, we call him Kiki.

He is 21 years of age with cerebral palsy, and there is no way that

I

could sleep at night knowing that

I

voted yes and can do this to

someone

else." (CI8549-50).

It

goes without saying that there was no evidence in this record that modem Subtitle D

landfills are linked with or the cause of any disease or birth defect. Alderman Plocher's statement

of May 23rd, is, at best, uninfunned, and likely much worse.

d. The Four Resoludons

On

May 24, 2007, the City Council deliberations reconvened. Attorney Micbael Roth

indicated that he had prepared two

different resolutions.

In

the denial resolution, be included the

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conditions he had decided should be imposed upon reversal of the City's denial. C18612-13).

'Nhile this Board

has

frequently held that conditions attached to • denial are a nullity, they are

r"levant here not only to help onderstand the tainted decision-maldng process, but more

importantly, as guideposts that clearly signal

the City's onderstanding, even then, that the

manifest weight of the evidence showed approval was the only appropriate response to the

exceptionally strong Application. The intense focns placed on the erafting of conditions

'~o

be

inevitable.

Moreover, the clock was ticking,

with

the decision deadline just two

days

away, and as a

result all attention turned to the question of which conditions should be imposed, sending the

Council careening

off on a sidetrack that left the formulation of a rationale to support denial to

fan, forgotten, by the wayside. All eyes were focnsed on crafting the conditions the City planned,

albeit erroneously, to impose when the inevitable occurred and their denial was later reversed.

Rose Spears proposed additional conditioos, seeking to add to those already contained in

the draft resolution. (C18613-19). Other Aldermen proposed their own additional conditions. 10

the wake of the additional conditions proposed by the Aldermen that

nigh~

Attorney Roth noted

that he would have to revise the resolutions he bad prepared for the meeting. Alderman Plocher

then moved "To approve the denial resolution

with

restrictions. including all new restrictions."

(R. $-24-07 p. 33)(emphasis added). Attorney Roth confinned to Aldennan Munns that there

were actually three draft resolutions.

(CI8624) Roth went on to caution the City Council about

including conditions not permitted

by law, and Mayor Burd asked for an amendment to Plocher's

motion to allow the attorney to draft the final resolution to include only conditions that he

believed were allowable under the law. (CI8628-630). Mayor Burd explained

to Alderman

Beseo, "The amendment is to allow our attorney to remove any illegal conditions, any of them

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that pertain to the host agreement, the annexation agreement, anything that we can not legally

ask for." (CJ8629-630). The motion as amended then passed by a vote of7 to 1.

The City of Yorkville tendered to Fox Moraine a copy ofR.solution No. 2007-36, which

is dated May 24, 2007. This is a dccial resolution with conditions to be imposed in the event of a

reversal or remand.

Some of the conditions proposed by Council members on the night of May

24,

2007

were

included, while others were not. For example, Alderman Spears' technical

specification for the above ground leachate storage tanks are included (Condition

0).

On the

other hand, the proposed

$10,000,000 annual flat fee proposed by Alderman Plocher is not

included, and he testified that

he was told by the lawyer that he decided not to include it because

he thought it was unconstitotional. (pCB

4-22-09 p. 31) The record indicates and Mayor Burd

acknowledged that her attorneys ultimately decided which conditions to include in the resolution

and which conditions

to leave out. (PCB 4-21-09 p. 239).

An

unsigned and unnumbered copy of Resolution 2007-36 was admitted as FM Ex. 33.

This Resolution was obviously not before the Council members at the time they voted on May

24,2007, and the May 24, 2007 date affixed to it is obviously incorrect. Based upon the record

and admissions

of Mayor Burd and Alderman Plocher, this Resolution was prepared at some

point after the May 24th

meeting. This is confumed by further review of the Wildman invoice

(FM Ex. 16), which documents an attorney conference with assistant city administrator Bart

Olson on May 29, 2007 regarding Resolution rovision and work on legal requirements for

service

of the Resolution. Whether the actoal Resolution teudered to Fox Moraine was ac1ua11y

finished by May 29, 2007 is, therefore, highly questionable. The May 29th time entry regarding

resolution revisions is the last entry on the invoice, and Fox Moraine has not seen the Wildman

firm's subsequent invoice.

In

any case, it is clear that the City improperly backdated, and Valerie

Burd improperly signed, Resolution 2007-36. Presumably, this was intended to avoid approval of

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the Application by operation of law pursuant to §39.2(e) of the Act. May 29, 2007 was the 179th

day after filing of the application, and the written decision of the City was due no I.ter than the

following day.

The point here is not that Fox Moraine's application was approved by operation

of law (Fox Moraine is fully aware of the Board's holding in

Peoria Disposal Co. v. Peoria

County Bd.,

PCB 2006-184), but rather to illustrate yet another example of Mayor Burd's

extreme deception and bad faith.

Although a mayor is not necessarily a decision maker, this Board has, in the past,

considered the misconduct of mayors in its fundamental fairness rulings.

See Concerned Citizens

for a Better Env't

v.

City of Havana and Southwest Energy Corp.,

PCB 94-44 (May 19, 1994). In

that case, the Board reversed local siting approval because the proceedings were fundamentally

unfair. The Board noted that it was "dismayed at the actions of the maYOII when presiding over

the actual council meeting where the actual vote occurred, the mayor clearly showed bias." (Slip

Op. p. 8) The Board has therefore recogoized the important role a mayor plays in the decision

making process, even when that mayor doesn't necessarily vote.

It

is indisputable that Resolution 2007-36, in the form presented to Fox Moraine, was

never voted on by the City CounciL The resolution, therefore, represents the final decision of

Michael Roth and his team of lawyers at the Wildman law finm, rather than the final decision of

the City Council. The City Council's improper delegation of authority to Roth to decide what

conditions to impose makes the proceedings fundamentally unfair. Section 39.2(d) requires a

written decision specifYing the reasons for the decision, and to this

date~

Fox Moraine has not

received the same. The Wildman attorneys

I

written decision is not an adequate substitute.

Moreover, at the hearing before the Board in this appeal, the City presented four draft

resolutions, FM

Ex. 33, 34, 35 and 36. Exhibit 33 is a copy of the Resolution ultimately

presented as the purported decision of the City CounciL Exhibit 34 is the draft of an approval

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with conditions resolution. Exhibit 35 is actually 2 resolutions, the fitst being a denial with a

single condition, and the second being an unconditional denial. Exhibit 36 is a multiple choice

resolution called approval/denial. No one has identified which

of these draft resolutions were

actually betore the City Council on the night

of May 24,2007, and it is therefore difficult, ifnot

impossible~

to detennine exactly what the City decided. Moreover, what is known for certain is

that the City Council did not determine the ultimate contents of Resolution 2007.36. Therefore,

Sec. 39.2(e) has clearly been violated, and for this reason the application should be deemed

approved

by operation oflaw.

Additionally, there was apparently never a consensus

of the City Council as to which

siting criteria were met. The Resolution tendered to Fox Moraine indicates, in Paragraph 2, that

critcria (i), (ii), (iii), (v), (vi), (viii), (ix) and "(x)" were not met (the reference to criterion x being

shorthand for the previous operating experience and past record of the Applicant). This

Resolution purports to

be • consensus of the City Council reached during its public deliberations

on May 23, 2006. However, a review

of the

transcript

of those

deliberations reveals there was no

consensus with respect to these siting criteria. Not all of the aldennen expressed opinions on all

criteria, and with respect to those that were discussed by individual aldermen, their statements

were often equivocal and even contradictory. Thus, although the Resolution purports to represent

a fincling

by the aldermen that the Applicant failed to meet certain criteria, the transcript reveal.

that a majority

of the aldennen did not express negative views regarding each of those criteria

It is clear, in any event, that there was no consensus

or will of the Council to find that all

c'l'iteri. except (iv) and (vii) were not met. Since we don't know (and the City has not explained)

which draft resolution or resolutions the Council members had before them when

they

voted,

there is no evidence that the majority of the City Council reached the findings reflected in the

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ultimate Resolution, which was drafted ahuost a week after the vote, by an attorney who had

been directed to include only those findings that would stand up on appeaL

If the City tlIkes the position that the findings contained in Resolution 2007-36 actually

represent the will

of the majority as to their findings on individual criteria, then the Resolution

offerS

clear proof of bias by all of the Aldennen who voted no, inasmuch as a "no" vote on

criterion (ix) (regulated recharge), when that criterion is not even applicable and was not

contested, is a conclusive indication of bias.

The final and perhaps most serious problem with Resolution 2007-36 is that it does not

comply with the bedrock requirement

of Section 39.2(0) of the Act that the written decision

specify the reasons for the decision. Paragraph 2

of the resolution states, "The United City of

Yorkville finds, for the reasons set out in the record of these proceedings, including but not

limited to the reasons stated at the special meetings

of the Yorkville City Council held on May

23 and May 24, 2007 that the following criteria, as set forth in Sec. 39.2 of the Act, were not

met.,," This is nothing more than lawyer-speak for "we're not going to tell you the reasons,

because

we don't know what they are." Cettainly the record of the siting proceedings provided

no reasons for denial;

instead, it provided compelHng reasons for approval, as reflected In the

comprehensive review

of the evidence contained in the Clark and Price Reports. That leaves only

the statements of the Aldermen during the public deliberations. Aside ftom the obvious faci that

no individual alderman's statement represented the consensus of the entire Coundl, the

statements themselves are liberally peppered

(as previously documented) with references to

matterS outside the record and to legal misstatements. There is an explanation for why the City

did

not provide the usual findings of fact or other concise statement of reasons for denial: those

reasons did not exist. There are no findings

to support denial that would withstand the scrufiny of

a careful review of the Record. Accordingly, the City had to settle for a cursory conclusion that

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the eriteria were not met, which obviously does not satisfy the statutory requirement for

"specifying the reasons."

Summary of the Evidence

on Fundamental

Fairness

Rose

Spears, as evidenced by the transeripts of her st.teroents at the time, was opposed to

Fox Moraine from the outset. Although she claimed not

to know that there was any landfill

opposition, she became the hero

of the anti-landfill crowd, according to Aldennan Sutcliffe. She

did her own independent research,

On

which she relied in reaching her decision. Moreover, she

was patently untruthful in her testimony at the hearing on fundamental fairness

in

the Board

proceedings.

Robyn Sutcliffe's campaign for alderman centered around her opposition to Fox Moraine

and the proposed landfill. Her published promise

to vote "no" offers conclusive proof of her

pervasive bias aod pre-judgment.

She kept her promise.

Wally Werderich and Arden

Plocher, were, together with other FOGY founders and

officers, and "expert" witnesses, members

of Valerie

Burd's mayoral campaign committee. The

committee members were friends, and helped each other. While Plocher benefited from his bias

by getting elected Alderman, his bias was essentially personal and emotional, as indicated by his

relating the landfill proposal

to his brother's cerebral palsy. Werderich, on the other hand, freely

admitted to organizing landfill opposition in the beginning, doing the legal work to incolporat.

FOGY

and ultimately parleying those efforts into a seat on the City Council. His gross

misstatements about the law concerning conditional approval on the night

of deliberations very

likely

pushed an admittedly confused Marty Mmms into a "no" vote.

Valerie Burd was initially enthusiastic about the idea

of receiving host fees from a

landfill. However, when she saw the large, hostile crowd at the

initial

annexation meeting, she

suddenly realized she had an opportunity to use the landfill issue to become mayor. Her

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insistence under oath that she never knew that any of the members of her campaign committee

were

landfill opponents is nothing short of disgraceful. Fox Moraine was as embarrassed to hear

it as she should have been to offer it.

Marty Munns spoke like someone who voted "yes, with conditions." He also vocalized

COncerns about not having enough time to go through the material filed at the end of the public

comment period. Munns

observed that he felt technically unqualified to make the decision, and

as a result, complained bitterly about not having the Hearing Officer present at deliberations to

help him reach a decision.

In

the end, Munns testified that the Clark and Price reports confinned

what he himself had

heard in the evidence, and he could not disagree with anything in those

reports. That

being the case, his "no" vote was obviously not based on the evidence, or even his

perception

of the evidence, but must instead have been based on other considerations.

II.

ALDERMAN SPEARS WAS NOT A CREDIBLE WITNESS

Fox Moraine's Motion for a Finding that Valerie Burd Was Not a Credible Witness is

extensively documented

and supplemented in this Brief. Although no motion for a similar

finding regarding

Rose Spears was filed, the conflict between Ms. Spears' previous statements at

Council meetings,

as documented herein, and her testimony at the Board hearing on April 21,

2009, clearly warrant the same finding.

In

the City Council meetings where annexation, vacation

of the road, and the Host Agreement were endlessly discussed, Spears was an even more vocal

opponent than Valerie

Burd. Her testimony that abe did not know that the Fox Moraine

annexation

was related to a coming landfill proposal, that she did not know the loud crowds who

cheered her at these meeting were opposed to a landfill,

as well as her initial statement that she

did not even remember the annexation meeting or voting on the annexation issue, are so

unbelievable that her recent protestations of fairness abould clearly be disregarded. Spears did

acknowledge that she voted "no" on all the statutory siting criteria. This would include criteria

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(iv) (flood plain), vii (hazardous waste preclusion), and ix (regulated recharge area), which were

not even at issue.

Ms. Spears was also extremely evasive about the ex parte communications she received.

She

testified that she received

ex parte

emails, but said she could not remember whether she

received

one or one thousand. (PCB 4-21-09 p. 79). Similarly,

with

regard to the

ex parle

letters

she received, she could not recall whether she received one or a thousand, and concerning the

personal contacts she received, she again could not recall whether it was one or one thousand.

(PCB 4-21-09 p. 80). However, on the other hand, her memory improved dramatically and

remarkably when asked about pre-filing contacts

by

Fox Moraine general manager Charlie

Murphy.

She recalled that she got precisely three phone calls from him in August 2006, one of

them being on a Sunday. (PCB 4-21-09 pp. 129, 130).

Alderman Spears denied doing outside research regarding the landfill proposal, but in

light

of her other unbelievable answers, and the absence

in

the record of evidence regarding

several specific points

she raised as alleged facts on May 23, 2007, her denial is not credible.

Even Mayor Burd, at

the

conclusion of the May 23rd deliberations, singled out Aldennan Spears

for her "great" research. (CI8563). Again, being a true team player, Spears swore at the Board

hearing that

she saw the final version of Resolution 2007-36 on the night of May 24th, although,

again, that

is clearly impossible. (PCB 4-21-09 pliO).

For someone who claims to have carefully and objectively weighed the evidence, it is

distorbing that

Spears now testifies she did not know what the Price and the Clark reports

recommended,

and that she did not even know there was a third report. (pCB 4-21-09 pp

112,113).

III.

THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

A.

Standard of Review

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In

addition to ensuring that the process was fundamentally fair, the Board's review must

also assess whether the local siting decision was against the manifest weight

of the evidence,

Land

&

Lakes Co, v, PCB,

319 DLApp.3d 41,48743 NE2d 188, 194 (3'" Dis!. 2000). A decision

is against the manifest weight of the evidence

if

an opposite conclusion is apparent or the

decision-maker's findings "appear to be unreasonable, arbitrary, or not based upon the

evidence."

Webb

v.

Mount Sinai Hasp.,

347 11l.App.3d 817, 807 NE.2d 1026 (1" Dist. 2004),

Therefore, the decision-maker's findings must rest upon competent evidence and be supported

by substantial proof.

Gumma

v,

White,

345 DLApp.3d 610, 803 N.E.2d 130 (I" Dis!. 2003),

Moreover, the mere existence of some evidence that conflicts

with

the Applicant's proof is not

sufficient to support a denial of siting.

See A.R,F. Landfill

v.

Lake County,

PCB 87-051, slip op.

at 21-24

(Oct. I, 1987).

Where, as here, there is no competent or relevant evidence that fairly supports the

decision-maker's denial of siting, the denial is against the manifest weight of the evidence and

must be reversed.

See Gumma,

345 m.App.3d at 614-615 (affirming reversal

of administrative

agency's suspension order based on a determination that there was insufficient evidence to

support the order).

B.

Introduc1ion

The Applicant, Fox Moraine, presented

prima facie

proof for each of the statutory

criteria,

as is fully documented in the recitation of the evidence set forth below. Because the City

Council's "findings" regarding an alleged failure to meet the statutory criteria were not

supported by any competent or substantial evidence, and were in fact contrary to the competent

and relevant evidence presented at the hearing, the City's denial was against the manifest weight

of the evidence! and should accordingly be reversed, inasmuch as there is no evidence to

substantiate risk or to contradict the Applicant's

prima facie

showing.

See Industr. Fuels

&

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Resources/minois. Inc,

v,

PCB,

227 m,App,3d 533,592 N,E,2d 148 (1" Dis!. 1992) (reversing

siting

denial because there was no evidence to substantiate risk or contradict applicant's

pri11Ul

facie

showing), The fact that the City found against Fox Moraine on two criteria where there was

no sworn evidence in opposition, and one criterion which wa,;; not even applicable, should cause

the Board to treat the City's decision and so-called findings with extreme skepticiSltl,

In making a manifest weight determination, the Board must determine whether there is

any technically soood basis for concluding that a particular criterion has not been met. The

mandate of the Supreme Court in

Town

&

Country Utilities. Inc,

v,

PCB,

225

Hl.2d

103, 866

N,E,2d 227

(2007) requires that the Board conduct a critical and technical review of the record

developed during the local siting hearing ''to determine whether the record supported the local

authority's conclusions,"

(ld,

at 123), The Supreme Court in

Town

&

Country

pointed out that

the legislature intended

to ereate a unified, statewide approach to pollution control facility

approval, where the primary responsibility lies with the technically qualified

PCB. Units oflotal

government have "concurreot jurisdiction" in siting

(ld"

225 lIl.2d at 108), but they render only

an "interim decision,"

(ld.

at 116), which can then be contested before the PCB pursuant to

Section 40,1 of the Act, Section 40.1 requires the PCB's technically qualified members to utilize

their technical expertise in conducting a

"hearing" to review the record developed below

(id,

at

120), places the burden of proof on the Petitioner

(!d,

at 123), and requires that the PCB "make

factual and legal determinations on evidence"

(Jd,

at 120,237, 426)(ernpbasis added),

C.

Facts Related to Criterion (i) ("the facility

i.

ne.,., •• ary to accommodate the waste

needs of the area it is intended to serve")

Need is established where the proposed facility is reasonably required by the waste needs

of the service area ideotified by the applicant.

File

v,

D&L Landfill,

219 III.App.3d 897, 597

N,E,2d

1228 (5

th

Dis!. 1991), Opposition to the service area size, or to accepting out-of-county

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waste, are not proper reasons to deny criterion (i).

See Metropolitan Waste Systems

v.

PCB, 201

1l1.App.3d 51, 558 N.E.2d 785 (2'" Dist. 1990).

Mr. Philip Kowalski testified for Fox Moraine eonceroing Critcrion (i). Mr. Kowalski,

who has

a Baehelor's degree in physics and a Master's of Finance degree from the University of

Chicago, was

well~qua1ified

to undertake the "need" analysis" having worked as a solid waste

consultant fur 19 years, and haviog written (as principal author Or contributor) 29 need

assessments for solid waste facilities in Illinois. (C09382).

He has al,o actively participated in

the preparation of need assessments for solid waste management plans for 35 lllinois counties.

(C09382).

Mr. Kowalski explained that in assessing the solid waste disposal needs of the service

area relevant to this siting application, he examined demographics projections, various county

solid waste management plans and need assessment studies, the current solid waste disposal

capacity data, and the amount

of waste presently being deposited in landfills based on data from

the !EPA and its eounterparts

in Indiana, Michigan, and Wisconsin. (C09383-384).

Kowalski explained that the proposed service area

for this project consists of Kendall

County and seven

neighboring counties in Northeastern Illinois, and that the proposed site is

centrally located

within that service area (C09385). The proposed facility will have a disposal

capacity

of 23.5 million tons, and with an average throughput of 3,500 tons per day, the facility

would offer a life

of23 - 24 years. (C09386).

In the past, the proposed eight-county service area had 28 operating landfills, but by

January 2006, only ten were still operating. (C09388-389). Even as the number oflandfills in the

area was diminishing, Kendall County experienced a growtll rate

of about 45 percent between

2000 and 2005, and during that same time period, the City of Yorkville ("City") had a growth

rate

of about 75 percent. (C09387). The estimated overall growth rate for the proposed service

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are. over the anticipated life of the landfill is 19 percent. (C09386-387). Moreover, per capita

disposal

rates are actually increasing with time. (C09387).

It

is anticipated that between 2006 and

2031, the service area will need to dispose of a total of approximately 325 million tons of waste,

increasing

from 11.5 million tons

in

2006 to 13.6 million tons in 2031. (C09388).

Of

the 28 landfills that once served the service area, only 10 remain, and of the three

facilities that Kendall

County has historically relied upon, two are now closed; the one remaining

landfill that

Kendall County has relied on in the past has very limited remaining capacity. (3/12

at

103-104). Two other open facilities within the greater service area restrict the areas from

which they receive waste. C09389-90). Between 2031 (by which time the service area is

projected to generate 325 million tons of waste), and 2006 (when total remaining waste capacity

in the area was 29.5 million tons), a capacity shortfall of 296 million tons arises. (C09389-92).

Once the landfills upon which Kendall County has historically relied are closed, the nearest

landfill will be 37 miles away, and the next closest landfill will be 60 miles away. (C09398). The

proposed facility

would be centrally located, being about 40 miles from the "waste centroid" of

the service area, and about 8 miles from the centroid within Kendall County. (C09397-98)

After having compared the cost to transport waste to the proposed, centrally-located

landfill

with the transportation costs associated with utilizing the 40 other regional landfills, Mr.

Kowalski determined that the proposed landfill would result in a savings of over 800,000 gallons

of fuel per year, thereby reducing waste transportation costs by millions of dollars. (C09399). As

a result, the central location of the proposed facility will allow commmities throughout the

service area to better manage the cost of waste transportation, and

win

substantially decrease the

amount of fossil fuels used to transport the waste. (C09399).

Based on the service area's insufficient waste disposal capacity! and the fact that it takes

an average of nine (9) years to go from concept to actual operation of a landfill

in

minois, Mr.

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Kowalski's report concluded that the proposed facility is necessary to accommodate the waste

needs

of the intended service area. (C09397; C09401.02).

Mr. Dartyl Hyink, a retired industrial arts teacher, also testified on behalf of the

objectors.

C14321.22). Hyink opined that, based on his own research, including articles in the

New York Times, that there is a "glut of landfill space," and construction of new landfills is

''unnecessary.'' (C14325).

Hyink opined that the citizens of Kendall County should not have to

provide landfill space for waste generated in Cook Conoty.

(C14330). He further testified that in

his opinion, companies attempting to site landfills are just

in it for the money. (CI4337). He

opined that, rather than developing a new landfill, waste generated

in the area of the proposed

facility could

be moved by rail to the Spoon Ridge landfill about 200 miles away, although he

subsequently arimitted he did not know whether rail lines ran in the vicinity of Spoon Ridge

Landfill.

(CI4339-40; CI4401-02).8 Mr. Hyink's "testimony" is typical of what was apparently

accepted by the City as evidence at this hearing.

Mr. Hyink's remarks bed no relation to the

results of googling Hlandfill" on the internet constitute evidence.

Hearing Officer eed Special Counsel Findings and RecQmmeudalions

Both the Hearing Officer and Special Counsel Derke Price concluded that, with the City

Staff's proposed conditions, Criterion (i) was met.

As the Hearing Officer,

Mr.

Larty Clark,

observed in his "Findings and Recommendations," the evidence showed urgency with respect to

8 Hyink also gave his opinions regarding Criterion (li), although he acknowledged he has no

expertise as an engineer, geologist,

or hydrogeologist. (CI4348-49). He testified that "pollution

leaks will enter the aquifers from under the sitet! and will enter recharge areas along creek beds.

(CI4350-51) He acknowledged, however, that his opinions were personal, and U,.t he did no

scientific evaluation

of the "research" that he did to educate himself about landfills. (CI4389-

90). He further testified that he had no reason to dispute the geologic and hydrogeologic

evidence presented

by the Applicant's witnesses. (CI4407-08). His evidence that landfill liners

leak is based on

an incident he read about that occurred in Arkansas. (C14418-l9).

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need in the service arca, and although objectors asserted that alternative methods to treating

waste bave advantages over landfills,

"there are currently no proven alternative methods of

treating waste so as to avoid landfilling" and therefore, such alternative technologies are purely

speeulative at this point. (CI8522-23).

Special Counsel, Derke Price, shni/arly concluded that

Kowalski's testimony concerning need fur the landfill was credible, and that with the City

staff's

proposed conditions, Criterion

(i)

was met. (CI7l92).

D.

Criterion

(iI):

("the fae111ty is so designed, located and proposed to be operated that

the public health, safety and welfare will be protected")

Mr. Dan Drummerbausen testified for Fox Moraine concerning Criterion

(ii).

Drunnnerbausen is a senior hydrologist with Shaw Enviromnental, and

bas

11 years of

experience

in

the solid waste field; he is licensed as a professional geologist in Dlinois, Indiana,

and Georgia. (C09873). He holds a Bachelor's degree in Geology and a Master's degree in

Hydrogeology with a focus

on groundwater modeling, and he has interpreted the geology and

hydrogeology of more than 20 landfill projects. (C09873-74). He also has 14 years of

groundwater modeling experience ( most of which has involved landfills) and the development

of one-dimensional, two-dimensional, and three-dimensional groundwater models. (C09874).

Drummerhausen designed, supervised, and implemented the geologic and hydrogeologic

characterization

of the proposed site. (C09872). He detennined the relevant objectives, and

conducted a regional and

site~5pecific

hydrogeologic investigation, which included a thorough

examination

of the proposed site's geology and hydrogeology. (C09874-75). He identified

potential migration pathways in order

to

design the groundwater monitoring network and

groundwater impact evaluation, and reviewed all water well logs

within one mile of the site.

(C09875-76).

Mr. Drumrnerhausen's analysis of the proposed site led

him

to conclude the site under

consideration was the best landfill site he had ever worked on from a hydrogeological standpoint.

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C09874; CIOI58-59). He observed that the site features a substaotial amount of clay material

below the site, and below that, sand, gravel and bedrock. (C09877-78). He explained that the

presence

of a high ridge of end moraine near the site will further decrease the already low

potential for

contamination of the shallow aquifers. (C09876-77).

Drummerhausen explained that the uppermost bedrock aquifer below the proposed site is

tl,e upper Galena-Platteville Dolomite and the Ancell group, which consist, mainly of sandstone.

(C09878). The City

of Yorkville draws its water from the Ironton-Galesville sandstone unit, and

there is 300 to 500 feet of confining material between the uppermost bedrock aquifer at the site

and the aquifer from which the City draws its water. (C09878).

Borings and the geological study

of the site reveal approximately 80 feet of low

permeability clay beneath the location

of the liner for the proposed landfill. At the projected

vertical movement rate

of two

inches per year, it would take 480 years for groundwater to move

from the base of the proposed landfill to the bottom of the clay unit. (C09879; C09888).

Drununerhausen testified that his aoalysis revealed that the perfonnance

of the natur.l clay at the

proposed site

by i!self exceeds IEPA penneability requirements for complete liner systems by 83

perceot. (C09888).

Drummerhausen's

investigation involved a drilling program that included 48 boring

locations, with

46 continuous sampled borings aod two continuous sampled angle borings being

advanced to detect fractures; the borings being eveoly spaced from north to south and east to

west.

(C09879-80) The borings were used to gather relevaot geologic information and

hydrogeologic infonnation.

(C09879-881). Forty-eigllt monitoring wells were drilled in all areas

of geological interest, which were then used to collect groundwater elevation data and hydrologic

conductivity data (i.e. slug testing).

(C09879; C09882-85). Packer tests were also performed

(C09884).

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The geological study of the site revealed that the surface area conte Peoria silt, and

beneath that the Lemont formation, which is

predominantly clay. (C09885-86). Within and

below that unit are discontinuous silt, sandi and gravel deposits, and then the Robein or Roxana

silt, an ancient soil (C09885-86). Beneath that is an older drift of clay, silt, sand, and gravel, and

beneath that is bedrock made

up

of Galena-Platteville Dolomite and the Ancell group, which is

largely sandstone. (C09885-86). There is no hydraulic connection between the lower sand and

the uppermost bedrock. (ClOl28). The lllinois State Geological Survey examined the report

prepared by Drnmmerhausen's group and agreed that

their investigation was thorough, and that

the report accurately characterized the site's geology. (C09891).

Drummerhausen's group perfonned a groundwater impact evaluation or groundwater

model of the type approved by the !EPA to evaluate the site. (C09893). Even without a liner

system, the proposed facility easily passed the groundwater model, showing no measurable

impact on groundwater. (C09893). Shaw submitted the groundwater impact evaluation to one

of

the world's top experts on liner design and contaminant transport, Dr. Kerry Rowe, who

reviewed the materials and responded that the site appeared "well-suited for a landfill

development" and that the hydrogeology had been "conservatively interpreted for the purposes

of perfomring calculations to assess potential contaminant impact." (C09895). Dr. Rowe went

on

to observe that use of the minimum thickness of the Lemont Formation as a base was

arguably "over-conservative." (C09895). Dr. Rowe concluded that based on his review of the

groundwater impact evaluation, he believed "it adequately evaluates the potential impact of the

site over the

l30-year period examined." (C09895).

Drummerhausen concluded that based upon his investigation and his experience, the site

is hydrogeologically located so as to protect the public health, safety, and welfare. (C09896).

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Mr. Devin Moose also testified for Fox Moraine regarding Criterion (ii). He is the

Director

of Shaw Environmental's

st.

Charles, minois office, has a Civil Engineering degree, is

a registered Professional Engineer in nine st.le" and is a Diplomat of the American Academy of

Environmental Engineers. (CI0636). Mr. Moo,e explained that as a professional engineer, he

has taken

an oath to protect the public health, safety and welfare. (CI08l2).

Mr. Moose has over twenty years of experience working on landfill projects, and

regularly provides solid waste planning services, landfill desigu services, transfer station desigu

services, and virtually all types of consulting services having to do with solid waste. (CI0635-

37). He

has been involved in over 50 landfill siting, design, pennitting, and due-diligence

projects. (CI0638). He works for government and state agencies, and has assisted approximately

50 counties in minois. (CI0638). He also provides enviromnental engineering services to the

private sector. (CI0638). His testimony revealed that the proposed facility was designed to, in

every way, utilize state of the art teclmology.

Mr. Moose participated in the selection of this site, and chose

it

because of its favorable

geology. (CI0650). He explained that the site is not located in a seismic impact area. (Cl0653-

54). The nearest active fault zone is over 200 miles away, and there are no documented unstable

areas beneath the ,ite. (CI0653, C10656). The Sandwich fault zone is between several hundred

feet and one half mile

from

the ,ite, but even the Sandwich fault zone has experienced no

displacement since the Holocene period. (Cl 0654). Because the area in wlrich the proposed site

is located has experienced no movement in the last 286 million years, it has experienced no

displacement during a time period that well exceeds the regulatory standard. (C10654).

An archeological evaluation was performed, and there are no significant historical or

archeological or arclritectural resources within the project area. (C10656). The Illinois State

Historic Museum has signed off On the site. (C10656)(see also Application, Appendix F.6). Mr.

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Moose also testified that the proposed landfill facility will have no impact on, or pose a potential

threat to, any endangered speeies. (C10656).

The proposed facility

is not governed by any state-wide water quality management plan,

and it meets all required setbacks for water wells. (CI0657). The nearest downgradient water

well lies about 1,680 feet

from the site. (CI0657). The Application provides for a Water Well

Protection Plao for people living within two miles, and all applicable regulations are met.

(eI0657). There are no sole source aquifers within the vicinity of the proposed site. (CI0657)

(see also Application, Appendix F.8).

The landfill meets all required setbacks from roads and highways

(see

Application,

Drawing D-14)1 and also meets the required setbacks for schools, dwellings, retirement homes,

hospitals, etc. (C10657). The nearest residential dwelling is about 1,500 feet from the site.

(C10657).

Mr.

Moose explained that the Application provides a Property Value Protection Plan

for all residences located within one mile of the proposed facility. (C10657).

There is an average

of 78 feet of in situ clay beneath the proposed landfill site. (Cl0663).

Because the clay has an extremely low permeability, a liner system

isn't even technically

necessary because the natural clay protects the aquifer. (C10663). The Application, however,

calls for excavation of three feet of the

in

situ clay and recompacting it in place to ensure no

cracks or fissures are present. (CI0663). The clay will be compacted to one times ten to the

minus seven centimeters

per second or less. (Cl0664). On top of the clay, the desigu calls for a

60-mil, high density polyethelone

(HDPE) liner. (CI0664-65). A leachate collection system of

12 inches of granular material lie, directly above the liner system. (CI0664).

The design calls for the use of four

individual liner

systems in the critical areas around

the leachale collection sumps and perimeter of the landfill facility. (C10668-70). The minimuro

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thickness of clay beneath the critical areas is 67 feet and the maximum thickness is 95 feet; there

would

be an average of75 feet of clay beneath the critical areas. (CI0670).

The desigu plan calls for the liner system beneath the critical areas, the sumps, and the

V-

notches, to consist of two layers of HDPE, with a geo-syothetic clay liner ("GCL") material

sandwiched between the two layers, and a minimum of three feet of recompacted low

permeability clay underoeath that. (Cl0671). The GCL material will consist of bentonite, which,

when hydrated,

is equivalent to three reet of compacted clay. (C\0671).

If

the GCL liner were

to become perforated, the material in the liner would flow in and around the puncture and would

therefore

seal itself. (C10672-74). The Application calls for one hundred percent of every inch

of every seam of the high density polyethelene liner to be tested. (CI0680). Although the life of

the liner is expected to be a thousand or more years, the Application nevertheless contains a

design that assumes a seepage rate through the liner system as an ultra conservative measure.

(CI0782-83).

The Application calls for

the use of fusion welding (the latest development in welding

technology) to fuse all portions of both the nDPE cover and liner. (C11497-98). Fusion welding

results

in intermolecular linkage within the HDPE material, and within each of the welds; the

welds are, in fact, actually stronger than the material itself. (CI1499).

Because

of the desigu grades in the liner system, leachate will only accumulate on

I %

of

the surface of the liner system. From there, it will be removed by the use of a system ofleachate

colleetion pipes

to quickly convey leachate down to the sumps. (CI0669; Cl0672). Mr. Moose

explained that this pipe would be surrounded by a washed gravel envelope, with the envelope to

be surroWlded or encased in a layer of filter fabric which would provide additional protection in

the unlikely event that there was ever a failure associated with the pipe. (C10672-73). Leachate

would then be removed via a leachate collection riser system

j

using an air-driven pump.

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(CI0683-84). The pumps called for are specifically designed for this type of ao environment, and

are level-actuated, so that when

one foot of leachate aecurnulates, they begin to pump. (C I 0684;

CI1496)). Leachate holding

tanks

will be equipped with an alarm system that will sound when a

tank is

80% full, incorporating both visual and audio alarms. (CI1538). If a tank reaches 85%

of capacity, the pump will shut off and the alarm system will stay on so that the tank carulO!

overfill. (C1153S-39).

An accumulation of stann water on the

final

cover is to be prevented by use of a geo-

composite net, above which there would be three feet of protective soil, as well as a vegetative

layer. (CI0686-87). The final cover will have an average slope of 4 to 1, with a minimum of5%.

(CI0687). The slope, working in combination with the synthetic cover and the drainage net, will

cause 99%

of all precipitation that falls on the facility to roo off, thereby minimizing the

likelihood that water could infiltrate

and increase the potential for leachate. (CI0687; C108l6).

Notably, in designing the landfill, it was decided not to make it as high as it could feasibly have

been, but, rather, to mimic the area's topography so as to make it as aesthetically pleasing as

possible. (CI0814-15).

Gas removal is achieved by using suction, creating negative pressure within the landfill.

(CI0691). The design for the gas collection system calls for

208 wells, connected by piping to a

central point, where the

gas

will be treated. (CI0691). Mr. Moose explained that in the early

stages

of the landfill development there might not be sufficient quantity or qnality of gas to

warrant a gas-to-energy system; therefure, in the early stages, gas will be burned using flares.

(CI069l-92). Incineration of tins gas would

take

place in an enclosed flare, thereby eliminating

the potential for odor problems. (CI0692).

Once the landfill generates a sufficient amount of gas,

a waste-to-energy

or gas-to-energy facility will be constructed for generating electricity.

(C I 0692-93). Mr. Moose testified that the Application calls for continuous monitoring around

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the fiJcility for

gas

and leachate. (C 1 0694).

In

addition, there is a system to monitor landfill gas

witlrin the waste footprint itself and around its perimeter to ensure that no gas is migrating

through the vadose zone. (CI069S). The Application also calls for monitoring the ambient air

near the ground surface, since landfill gas is heavier than air. (C10695).

Air

in

onsite buildings

is to be continuously monitored to ensure no methane has migrated into any of the buildings.

(C10695). The area around the perimeter

of the filCility will be monitored using 25 gas

monitoring probes, thereby ensuring no gas is migrating into the surrounding ground. (CI0698).

Mr. Moose deseribed the facility's groundwater monitoring system. (CI0698). He

explained that the system calls for 36 groundwater monitoring wells, to

be located all the way

around the perimeter of the landfill, fifty feet from the edge of the waste. (C10698; CIl271).

The uppermost aquifer will be monitored eompletely around the landfill. (C10699). There will

also be monitoring

of the saturated zones ofthe Henry formation. (C10699).

Because grOlmdw.ter flows to the South and Southeast

of the landfill, wells are spaced

closer together in that area, with the spacing having been determined by use of a computer

program. (CJ0700). Mr. Moose explained that it will ultimately be up to the !EPA to determine

the final spacing of such wel1s, but the groundwater monitoring system as designed will be over

99.5% efficient,

far in excess of the EPA requirement of 95% effieieney. (CI070l; CIlS3!).

Groundwater sampling and testing wiII be done by an outside independent consultant. (C!1493).

The Application calls for a comprehensive

construction quality assurance program that

will oversee every aspect of construction to ensure that construction is in strict compliance with

the design plan. (CI0704). Every aspect of construction will be inspected by an independent,

third

party and certified by a professional engineer registered in the State of lllinois. (Cl0704;

CI1493).

Constrll<ltion oversight includes oversight of the reeompacled low permeability clay

liner system,

and the lesting of every inch of the seams of the high density polyethelene, as well

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as the high-density polyethelene material itself. (C10704-05). In addition, every man-made

component

of the system will be tested. (CI0705). The evidence in the record shows that the

facility will not impact the aquifer within

100 feet of the facility boundary, 100 years after

closure. (C1l432). Mr. Moose also testified that the project is so designed as to avoid any

flooding

downstream as a result of construction activities. (CI 0707).

The stonn water system is designed for a

100~year,

24-hour storm, which is nearly five

times the state requirement for such facilities. (C10708). The stonnwater system includes

naturalized detention basins with emergent wetland shelves.

(CI0709). Prairie grasses on the

banks of the basins are included to dampen or minimize the effect of erosion around the

perimeter, and to serve as filtration or nutrient uptake, so that the plants themselves help clean

the water. (CI071O). The Application includes wet-bottom basins designed to be deeper than

they need to be so that water is in them at all times, thereby causing water entering the basin to

be slowed down. (CI0709-JO). Mr. Moose also explalned that the longer water stays in such

basins, the more sediment settles out.

(CI0709-10).

The Application also calls for the use of bio swales, and various wetlaod aod prairie

vegetation to minimize erosion, and for the rerouting of an existing

fann

ditch which transects a

small portion of the site. (CI0710; CI07l2). The landfill design also incorporates the "Teation of

waterfalls to provide aeration and inlprove the quality of water prior to discharge. (ClO713). Mr.

Moose testified that

the

proposed design exceeds IEP A requirements by 50%, and will allow the

facility

to handle a flood of record (16.9 inches in a 24-hourperiod). (CI0714).

With respect to operational controls,

Mr. Moose testified that the proposed Site will take

municipal solid waste, and will take no hazardous or radioactive waste.

(CI0717). Employees

will be tralned to ideotifY acceptable and unacceptable materials, with unacceptable materials to

be segregated and eitherrccycled or disposed

of properly. (CIOnO).

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The gatehouse will have a radiation detection device, and vehicles will be videotaped as

they enter. (CI072I).

In

addition, at the active face of the landfill, operators, spotters, landfill

compac'ters, and all other employees will be trained to look for unacceptable waste. (CI0722).

The Application calls for random inspections, both at the landfill and at transfer stations that will

use the facility, to determine whether unacceptable waste is present. (CI0722). Haulers who

bring unacceptable materials to the landfill will

be penalized, and chronic offenders will be

barred from using the facility. (C1l515-16).

The Application includes measures designed to control dust and mud. (CI0725-28).

On-

site areas used by trucks will be paved, and Mr. Moose explained that the design provides

adequate distance between the entrance and the scale house to queue incoming vehicles.

(CI0726). During periods of wet weather, landfilling would take place ouly in areas kept under

intermediate cover. (ClO726-27). This minimizes the distance a truck must travel from the paved

road to the point of disposal. (CI072?). Once weather improves, disposal will resume at the

normal active face

in the landfill. (C I 0727). Mr. Moose testified that the Application's best

mud-control measure is use of good,

all~weather

access roads from the facility entrance gate to

and from the active face area, so that most mud will have fallen off a vehicle before it even

reaches the wheel wash area. (CI142I). Dust is to be controlled by use of a water truck, and a

street sweeper is used anywhere mud is created.

(CIOn8; CI1485-86).9

The Applieation calls for us. of 10 to 15 foot high operational screening berms around

the perimeter to shield daily operations from the view

of passersby. (CIOn9). These operational

berms also help suppress noise and control litter.

(CIOn9).

9 Mr. Edwards provided additional details concerning dust and mud control measures, at

CI0580-83).

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The litter control measures include a requirement that waste be covered in a timely

manner, and a process which ensures trucks are cleaned out before they leave the active face of

the landfill. (Cl0729-30). Operations are to be altered during windy conditions. (Cl0730). Mr.

Moose explained that there

WOUld. in addition, be primary, secondary and tertiary portable

fencing, with

20 fuot high primary funeing to be located next to the active face. (Cl0730). These

fences are to be moved every day, or may be moved

mUltiple times per day, as needed.

(C10730).

The Site will be patrolled for litter pickup, and there are strict tarping procedures with

meaningful penalties meant to increase incentive for compliance. (C10732).

Odor control

includes

covering

waste

as

soon as possible throughout the

CO"UfSe

of the

day, and

also use

of the

gas monitoring systems and flaring systems. (C10735-36).

Ifa particularly odiferous load comes

in to the facility, that load is to be handled immediately and buried immediately. (C11486).

Additionally, a professional extenninator will regularly visit the Site to inspect for vermin and

rats, and will use appropriate measures to control them. (C11598-99).

Noise is to be controlled in part by use of setbacks, as well as operational screening

berms. (C10736). Mr. Moose confirmed that the facility will comply with the City'S noise

ordinance. (Cl0744).

Security will be present at the facility from the time it closes at night until the following

morning to ensure that any

tru.cks onsite are pre-approved and are part of the customer list, and

that no one else gains access to the facility.

(Cl0774-75).l0 The proposed facility incorporates a

c-Onvenience center to allow homeowners to dispose of waste

in

a series of roll-offs near the scale

10 The fact that security personnel would be nosite to ensure the safety and security of

operations was confirmed by the testimony of Mr. Ron Edwards. (CI0397-98).

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house, and a recycling drop-off area where the public dispose of recyclable materials. (CI 080 I;

C1I543).

Records concerning quality control and quality assurance are to be maintained onsite,

along with recorda regarding operation, construction and self audits. (CI0806).

Mr. Moose, like Mr. Drummerhausen, testified that from a geological and

hydrogeological standpoint, this is among the best sites he has ever seen for a landfill. (CI1544).

Based on over

20 years of experience in the field as well as the design and operational aspects of

the Application,

Mr.

Moose concluded that this facility is so designed and located, and is

proposed to be operated so as to protect the public health, safety and welfare. (C10744-45).

The objector groups presented testimony

by a Mr. William Schmanski, who claimed the

Application does not meet Criterion

ii

with respect to stormwater management. Schmanski,

however, admitted that he has never previously been involved

in

storm water management

design for a landfill, and that he has never done a stonnwater management review in connection

with a landfill siting application. (CI4111-14112). He admitted that the three drainage sections

(A-I, B-1, and

Col) an drain to the Fox River, and that in the aggregate, they meet the 0.15

standard under the law. (CI4114). Schmanski claimed, however, that each individual drainage

way must individually meet the

0.15 standard, and that the standard was not based on the

aggregate drainage into a single waterway. However, he could not provide any authority to back

up this assertion. (CI4114-17). Sc\unanski was aware that the EPA's ,tonnwater management

regulations for landfills are

diflerent than local regulations for other land uses, because the goal

in stonnw.ter management

of • landfill includes ntinintizing infiltration into the landfill.

(CI4112-13).

The only other sworn opposition -witness was the ubiquitous Mr. Hyink, whose expertise

is based on his having located the web site and writings ofG. Fred Lee. (C14376; CI4432).

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Hearing Officer and Special Counsel Findings and Recommendations

Once more, both the Hearing Officer and the Special Connsel fonnd that, with conditions,

Criterion (ii) was met. The Hearing Officer observed that Drommerbausen's testimony showed

that the clay beneath the site

"exceeds all lEP A requirements for liner soils in regard to

acceptable permeability."

(CI8524). He further credited Drommerbausen's testimony that "thls

site is the best site from a geological!hydrogeologica\ [basis] that he bas ever worked on."

(CI8524).

He did note that based on public input, Devin Moose had agreed to slightly modifY the

fill sequence to operate from east to west rather than west to east, allowing for earlier installation

of downgradient wells, to provide earlier assurance that the liner system was not breached.

11

(CI8525).

The Special Counsel and City staff also credited the testimony of Drommerbausen and

Moose, and concluded that with the proposed conditions,

Criterion (ii) was met. (CI7192).

E.

Criterion

(ill):

("the facility is located so as to minimize incompatibility with the

character of the surrounding area and to minimize the effect on the value of the

surrounding property")

Mr. Chris Lanner! testified for Fox Moraine, conceruing Criterion (iii). Mr. Lanner! bas

substantial experience in Criterion (iii) planning and analysis, baving provided testimony

regarding approximately 29 solid waste landfill proposals aod approximately 17 traosfer station

sites.(C08l44) He personally viewed the area on multiple occasions, both on foot and by car, to

confirm

aetnalland uses

in

the area. (C08l44; C08l50-51) He then prepared a landscape plan,

created 3-D images, and worked with a model maker to prepare a 3-D model

of the landform.

11 This was in response to the public comment of Stan Ludwikowski, a local resident

with

a

lapsed engineering license, who admitted he had no expertise in geology or hydrology, but who

questioned the sequencing of construction and the placement of groundwater monitoring wells.

Mr. Moose strongly disagreed with the content of this unsworn, unqualified conuuent, but

accommodating the concern was a minor point.

(Cl0952-54; CI1254-57.)

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(C08 I 45-46) His planning work for the facility incorporated a variety of design elements ro

minimize incompatibility with the surrounding area. (C0853!).

Mr. Lannert detennined that the holdings of one of Fox Moraine's principals (Mr. Don

Hamman, who owns 2,000 acres in the area) represent 51% of the land area sitoated within a

one-mile circumference

of the site. (COSI47). Hamman', land extends out in three directions

from

the proposed site. (C0854!). Concluding that Hanunan's substantial holdings in the area

could skew the results if a 1

~mile

radius was used,

Mr.

Lannert utilized a 2-mile radius

in

his

analysis (C08l47; C08l86-88; C08472). The 2 mile radius includes 13,083 acres, of which 84%

are agricultural, 7% are open space, 6% are residential, and 2% comprise the CornEd right of

way area. Fractional uses make up the remaining! %. (C08!49-50).

In choosing this site, the Applicant took into consideration its frontage on highway 71, its

contiguity to the Com Ed corridor, and its proximity ro the proposed Prairie Parkway. (COS533).

The landform for the facility

WllB

designed to have undulating contours, like the

surrounding farmland, with drifts

of wild flowers planted on top (C081S9-60; C08 1 67-68).

Because there are substantial clev.tional variations in the area around the facility,

the

undulating

landform will

be minimally obtrusive. (C08524). The colors of the vegetation to be planted at

the site coincide with the seasonal color change

in

the vegetation in the surrounding area

(C08529). Teo to twclve fuot tall berms featore vegetation that will, at the time of planting, add

an additional twelve

to fifteen feet as natoral screening, which, when, coupled with the design of

the entry drive, will shield the landfill operations from view. (C08l62-63; C08214; C08522,

C08551-52; C08554). The benning and screening also act to block noise from operations, and

minimize impact

on those near the landfill (C085!7" 18).

The landscape plan for the site featores three layers of vegetation, an additionall.yer of a

solid

berm, plus the operational berro, along Highway 71.(C085S1-52). All operational screening

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benns are designed to b. higher than the equipment working in that area. The plan incorporates a

naturally planted wetland,

to act as a stormwater pond for the site (COSJ63), as well as

stonnwater ponds at each comer) along

with

other features that address stonnwater drainage

requirements. (COSSI9). The design of these fe,tures was the result of a coll.bor,tion between

the site engineer

(Shaw) and ENCAP, an environmental firm that specializes in plant material.

(C08546-47). The site

is to be planted with natural, indigenous plant material, inclnding native

species

of grasses and ornamental trees, as well as taller trees and evergreens (COSI66).

The entrance to the facility is swept back, and an area is provided inside the entrance for

queuing or stacking within the facility itself, so that trnck traffic will not build up on the road.

(C08520). In Mr. Lannert's professional opinion, the proposed facility is so designed as to

minimize incompatibility with the surrounding area (C08l68).

Mr.

Prank Harrison also testified for the Applicant concerning eriterion (iii), testifying

with

respect to impact on property values. He is an appraiser and land use consultant who has

worked in this field for 36 years. (C08S7!). He holds the MAl and SRA designations from the

Appraisal Institute, has taught appraisal for

29 years, and

has

written a book on the valuation of

complex properties. (C08571-73). He is the past chairman of the TIlinois Real Estate Appraisal

Board, and was appointed

by

Governor Thompson to help create the criteria and standards that

govern the licensure, certification, and accreditation

of real estate appraisers in Illinois. (C08S73-

74).

Mr. Harrison evaluated and prepared a real estate impact study for the Applicant

concerning the potential impact

of the proposed site on property values in the area. (C08575-76).

In so doing,

he analyzed the market, looked at sales activity in that

m.rke~

and analyzed the

meaningfulliter.ture

concerning other landfills throughout Northern TIlinnis, including historical

case studies relating to those landfills. (C08S75-78). He

did not accept the findings of those

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studies at face value, but, instead, reviewed the data and perfotmed his own analysis, which

included spot-checking

to detennine the accuracy of reported sales data. (C08579-80). Mr.

Harrison pointed out that

the

construction standards for older landfills are unlike those that apply

to modern landfills,

and that older landfills are associated with. number of problems that limit

the value of impact studies associated with them. (C08591-92).

Mr. Harrison identified two landfills with characteristics similar to the proposed site in

this case, and conducted

an in depth study of those landfills. (C08591-92). He also carefully

reviewed the Applicant's proposed Residential

Property Value Protection Plan. (C08582). He

limited his examination of the data regarding other landfills to those built in accordance with the

modern, updated (Subtitle

D)

design standards. (C08997-C0900). Harrison spent a substantial

amount of time engaging in a first-hand examination of the area, including driving around the

area on a number of occasions

in

order to familiarize himself with the actual land use, activity,

and growth in the area. (C08576; C08583). He also examined soil and topography maps, and

reviewed the municipal boundaries

of properties in the area. (C08725). He examined sales data

obtained from the Illinois Land

Sale Bulletin (which collects fann1and sales in every county in

Illinois and is published every two months). (C08585) He also reviewed historical real estate

impact studies identified with the Wionebago Landfill,

Orchard Hills Landfill in Ogle County,

Lee County Landfill, Livingston Landfill, Prairie View, Settler's Hill, and Countryside, as well

as data related

to

several landfills in Kankakee County. (C08585; C08590). Harrison concluded

that the characteristics

of the area surrounding the proposed landfill support • finding it is a

"transitional agric'Ultural area" that is changing

from

one use to another. (C08588).

He found that the Countryside Landfill in Lake County bears a number

of similarities to

the proposed site in this case, including its proximity to

a state highway, the presence of a

CornEd corridor, and plans for a nearby interstate highway interchange. (C08595-97; C08602).

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Harrison noted that in Lake County, the Prairie Crossing development, a highly successful

corrununity

of national prominence featuring high.end homes, was built within a couple hundred

feet of the north end of the Countryside landfill, which demonstrates that the Countryside

Landfill has not impeded development in the area that surrounds it. (C08596.99; C08602).

With respect to the Settler's Hill landfill, Mr. Harrison explained that his research

showed it has not

hindered or impeded the growth of surrounding communities, and has not

diminished the type

or quality of development in those communities. (C08693.94).

In

examining the Property Value Protection Plan associated with the Application in this

case, Harrison observed that while most such plans extend out 1000 feet from a site (or

sometimes up

to a quarter mile), here, the Plan extends a full mile from the proposed site.

(C08695). Additioually, instead of the property protection beginning at the time that the permit

to accept waste is issued,

here the property protection begins with the filing date of the

application (i.e. December

I, 2006). (C08695.96).

Harrison

noted that tile specific location of the proposed facility on Mr. Hannnan's

acreage would have less impact on surrounding property than if the facility was sited elsewhere,

because the proposed location is near a planned major intersection of a state highway and an

interstate highway, making it unlikely

that any adjacent property would be developed as single.

family residential housing even if there was no landfill. (C08699.8701). Rather, this type of

busy interseetion is likely to be developed for commercial, industrial, and business park use.

(C08700). Additionally, Mr. Hannnan's ownership of much of the surrounding land acts as a

buffer on the proposed facility's impact in the area. (C08709.10).

Like Lanuert, Mr. Harrison concluded that the proposed facility is located so as to

ntinimize the effect on the value of surrounding property (C087l8).

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Opposition groups attempted to sbow the Application does not meet Criterion

(iii)

by

presenting witnesses wbo lacked appropriate relevant experience, failed to conduct legitimate,

verifiable investigations and analysis, and largely misonderstood the standards under

Criterion

(iii).

For example, Ed Sleezer, a self-described real estate broker and farmer, and former

township assessor,

as well as an undisclosed member of Alderman Burd's mayoral campaign

committee, evaluated the Residential Propetty Value Protection Plan. (C13481-84; C 13487; 13,

PCB 4-22-09 p. 18). Although he characterized himself as a real estate broker, he testified that in

2006 be brokered approximately four transactions, and in 2005, he brokered three or four

transactions.(CI3516-17).

Of those transactions, 5-10% were actna11y his own transactions.

(C13516-l7). He is not now, and

has never been a licensed appraiser. (C135l7-18). Before

looking at the Applicant's Propetty Value Protection Plan, he had never seen one before.

(C13525-27). He testified

th.t he concluded the proposed facility would have a negative impact

on surrounding property based solely upon hearsay. (CI3529-31).

Sleezer testified

a.,<;

to his pecuniary interest with respect to the Protection Plan, observing

that it would not cover his own property, which is located north of the proposed facility.

(CI3514-15).

Sleezer testified that when he first learned of the proposed use of the Hamman

property, he approached

Mr. H.mman to see if Hammao would sell his property to Sleezer for

$15,000 an .cre. (CI3512-22). When Mr. Hamman declined, and offered to instead buy

Sle.zer's property for $15,000 an .cre, it marked the end of the conversation. (CI3522-23).

Sleezer testified that in his personal opinion, the Protection Plan was insufficient because

it protected only residential propetty within a mile of the facility, and would not apply to

agricultural property, business property, or commercial property. (CI3489-90).

Opponents also presented Bud Wormley,

an insurance and real estate broker. (C\3564).

Wormley is not a certified appraiser, but nevertheless undertook to create his own opinion of

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sUITOunding property values, and projected future growth. (C13566-67; C13569-71). Like

Sloezer, Wonnley had a personal interest in the outcome of the siting hearing, inasmuch as he

own, property about a mile from the proposed site. (CI3585). Wormley opined that there would

he depreciation

of nearby land if the landfill was constructed, hut offered no data to support his

opinion. (CI3593-96). He admitted that this constituted a

"subjective" issue. (C136l9).

Wormley testified that his

"investigation" consisted solely of talking to certain property

owners in the area, although

he could only remember the names of two of the people he spoke to.

(CI3596-97). Wormley's conclusion that the Applicant

failed to meet Criterion (iii) was based

on the site's location, specifically, its location within what he believed was "a plan, committed,

and invested growth corridor." (C!3583; C13611-12). However, he also testified that any land

use other than agriculture would have a negative impact on land values in the area. (C13618). He

further opined that

all landfills leak eventually, and that it is just a matter of when. (C13622).

When asked to

suggest minimization techniques he thought should have boen

incorporated into the Application, he replied that "\ think further studies need to be made by

professionals in the field, traffic

engineers~

chemical engineers, geologists" but also stated he

was not an espert in any of those fields, and gave no reason why these additional studies might

be

helpful. (CI3620-21).

On

cross~examination,

Mr.

Wonnley's testimony was revealed to be laced with

inconsistencies and arguably misleading statements. For esample, when questioned about his

initial testimony that he had testified in Federal Court

regarding property valuation in a pipeline

case, he admitted that his testimony in the pipeline

ease solely related to his family's attempts to

recover compensation for pipelines that traveled through his mod,er's farm. (CI3630-3l).

In

addition, when asked during cross-examination to explain his initial testimony that there had

been a decline in land prices in the previous six months related to the proposed

landfill~

he

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admitted that there had been a nationwide decline in land prices during the same time period.

(C13637-38). With respect to his claim of land depreciation, he admitted he conducted no

investigation or analysis to detennine what the percentage or rate of this alleged depreciation

was, and knew of no information or sales data that would support his conclusion. (C13602-03).

When asked to explain his testimony that Section 1031 real estate exchanges had affccted

reported real estate values,

he acknowledged that he did not know how many Section 1031

exchanges there had been within five miles

of the proposed site in the prior year, and further

adnaitted he did not look at such data, and did not even know whether such data was in fact even

available. (C13591-93). He also revealed on cross-examination that the prior Criterion (iii)

wituess,

Mr. Sleezer, was one of his former employees. (C13599).

Opponents also presented

Mr. red Schneller as to Criterion (iii), another self-interested,

self-proclaimed

"expert" who lives near the proposed facility. (C13703). Schneller first testified

that the facility would pose an environmental risk (C13652), would be a danger to the shallow

aqnifer

from which residents draw their water, and would cause traffic problems (CI3656-59).

However, he thereafter admitted he had no expertise in any of these areas, and that his opinion

was not based on scieotific data or evidence. (C\3683; C13685-89; CI3700-01).

Schneller

testified that his opinion that the application did not comply with Critetion (iii)

was based on his "highest and best use analysis," and that the only way to

'~minimize"

the

landfill's incompatibility was to move it somewhere else. (CI3646; CI3683). He further opined

that the

"vast majority of residential developers would not seek to develop properties for

residential purposes next

to a landfill." (C\3693). However, he later admitted he was not

familiar with the Fox Run subdivision near Settlers HilL where the average home price was over

$750,000, and did not know there were naillion dollar homes withiu ready view of the Wheatland

Prairie LandfilL (CI3693-94). He acknowledged that he did not review any of this

kind

of

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infonnation in perfonning his so-called analysis, and admitted he did not do any match

compared analysis, explaining that he did not know

of "many other landfills that are in a location

like

this." (C13695). He conceded that if one excludes the opinions oflocal developers and other

people he questioned concerning their personal opinions on the impact of a landfill, there was no

empirical data to support his so-called analysis. (C13699). He noted that his opinion was based

on the general

"stigma" associated with a landfill, and claimed (again without support) that the

proposed facility would create a stigma

On the entire city of Yorkville. (C13687-13690; C13709-

01).

Opponents also presented Doug Adams, an appraiser. Notably, Adams' report was not

presented to the Applicant until after the Applicant had already rested its case, and was revealed

only one day before the witness testified, and indeed, three and a half weeks into the hearing.

(CI3888-89; C13891). The Applicant accordingly objected

to the testimony as unfair because of

the untimely tendering

of the

report (which denied the Applicant an opportunity to review it and

assess the validity ofits contents). (C13888-89; C13891). The Hearing Officer agreed with the

Applicant that

if this hearing had progressed in the maener most siting hearings do, it would

already have concluded, but

he nevertheless denied the objection and allowed Adams to testif'y

concerning his report (C13891).

Adams admitted

this was his first impact study or analysis, and represented his first

landfill study. (CI3977-78).

He acknowledged that he did no statistical analysis to verif'y his

findings (C13978). He testified that be chose two landfills to study in order to determine impact

on property values, and his choice

of those two landfills arose from the fact that they were in

different kinds

of settings (one urban and one rnral), and because he was already fantiliar with

both

of them. (C13980).

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One of the "comparator" landfills Adams looked at (Hillside Landfill) is located in a

highly urbanized area, close enough to Chicago that one can observe the Chicago skyline from

the site.

(C13990-91; C14002). With respect to the buffer around the Hillside Landfill, Adams

acknowledged that residences are located

extremely close to the landfill, with some residences

located

within a block of the landfill. (CI3991). He acknowledged that the Hillside landfill is not

a modern era landfill built under current standards, and that

it

has

a long history of compliance

problems, including uncontrolled releases

of leachate and landfill gas. (CI4008). He further

testified that the Hillside Landfill exudes a very strong odor. (C13905). Nevertheless, he opined

that data he obtained from the multiple listing service, which reportedly showed that one house

within three blocks of the Hillside landfill sold for $12,000 less than a house that was a mile

away, established that proximity

to

a landfill causes a decrease in property values. (C1391O-l1).

Adams further testified that he found another pair

of listings in the multiple listing service

that showed there was a $20,000 difference between the sale price of two houses, where one was

located closer to the Hillside landfill thOI' the other. (C\3909-11) However, AdOlDS admitted he

wasn't sure whether the price difference was attributable to differences in the terms

of the sale,

the financing, or the interior condition

of the two homes. (C14010-12). Ad01lls testified that the

price difference

"suggests" that property closer to a landfill is worth less than property farther

from

a landfill, but acknowledged the price difference might be due to something else. (C14013-

14). Notably, the Hearing Officer observud that the higher priced home sales included more

personal property, including appliances, than the lower priced homes, and Adams admitted

this

was true. (CI4040-41) The Hearing Officer further pointed out that the higher prices were

obtained in spring and summer) and the lower prices were obtained in the winter) which is

in

keeping with typical sale trends. (CI4042-43). The Hearing Officer also pointed out that the

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lower priced properties were

in

the Hillside School District, whereas the higher priced properties

were

in School District 87; again, the witness admitted this was true. (CI4043-44).

Adams also acknowledged that included in the data from which he selected the two

paired sales that served as the sole basis for his opinion were two homes located on the same

block, where one of the homes sold for $8,500 more than the other. (CI40l8-l9). Adams didn't

know what differences between the two homes might explain the price differential, because,

again, he relied only on the two paired sales he selected from a total

of 53 sales in the area

reported

in the multiple listing service. (CI4019-21; C14023; C13906).

Adams testified that did not know how near to the landfill residences would be in the

present case, and did not know how much buffer area

Mr.

Hamman owns

in

and around the

proposed landfill site. (C13992-93). (He did, however, testifY that he

has

no criticism of the

buffers proposed for the proposed facility.) (C13993).

Adams testified that with respect to the other

"comparator" landfill (near Clinton,

Illinois) that landfill represents a ''predeveloprnent''

example of what is proposed for the Fox

Moraine site.

(C13900). The Clinton Landfill is rural, located outside the city limits of a small

town in central Illinois. (C\3895). Adams opined that the Clinton Landfill and the proposed

facility in this case compare closely to the extent there is vacantI raw land around the site.

(C13895). The ownerloperator of the Clinton Landfill is also the same as the proposed operator

in this case. (C13897). However, Adams

fOWld that with respect to the Clinton Landfill, there

was no correlation between proximity to the landfill and sale prices. (CI4027-28; CI3904).

In

formulating his Criterion (iii) opinion, Adams testified that

h.

did not look at the

Kandall County Land Resooree Management

Plan, and further admitted he is Wlfarn1liar with

Land Resource Management

Plans. (CI3994; CI3996). He also acknowledged he did not know

what percentage

of the land in Fox Township, where the site is located, is agricultural. (C13997).

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He nevertheless testified that the way to minimize the incompatibility of the proposed facility

would be to make it smaller, because it is "too big," or to locate it "in a more rural setting than

where it is." (C\3912-13; C13920; CI4025). However, he had no opinion as to how much

smaller the landfill should be.

(CI4030).

Opponents further presented Joe Abel, a consultant on planning, zoning, and economic

development. (CI4562). Abel testified that Criterion (iii) had not been satisfied based largely on

the Comprehensive Land Use Plan Update for Yorkville, beeause the Comprehensive Plan does

not include landfills as a contemplated use. (CI4575). He described landfills as a nuisance type

land use,

observing that in the past they bave always been restrieted to heavy industry zoning

classifications. (CI4580-81).

The Applicant's objections to this witness's opinion being based on

zoning principles was overruled by the Hearing Officer. (C 14575-78) 12. The witness opined that

Criterion (iii) was not met because the proposed siting would

be inconsistent with the

Comprehensive Plan,

because the proposed facility was in an area that is "part of what they call

an estate neighborhood, which is intended to provide areas for low-density, detached

single-

family residences." (CI4582-85).

Notably,

he conceded, however, that the proposed area is actually outside of the boundary

of the Comprehensive Plan's planning area, (CI4584-85, He stated that when determining the

compatibility

of a proposed land use, "you must look at existing and proposed land uses to

determine how

an area is going to develop and, therefore, its total compatibility." (CI4594). This

is, he opined, because the subject property takes its charaeter

from the existing uses and the

"proposed

uses."

(C14594).

He stated that there is

Uno

way from a planning standpoint" to

characterize the area near the subject property as an agricultural area because when he refers to

12 Section 39.2(g) states, in pertinent part,

"Local

zoning or other land use requirements shall

not be applicable to such siting decisions."

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an agricultural area, he means "an area where you have square mile upon square mile" of

fannland, such that, for example, in a 36-square mile township, there might be only 36 homes,

(C 14598-99), Abel further testified to his belief that to be "lruly agricultural," an area must have

"very, very little residential intrusion," (CI4599-600). In his opinion, looking at a three mile

radius outside the property, he felt the area could not be classified as anything other than an

"estate area," (CI4603). He did admit, however, that section 7,6 of the Comprehensive Study

states that "Fox and Kendall Townships are fairly similar in terms of their predominantly rural

character" aud testified that he had no reason to doubt the validity of Kendall County's Study.

(C14649-50),

In Abel's opinion, when detennining incompatibility, one should look at "general welfare

from a planning standpoint" as "a sense

of well

being, a sense of feeling

~

feeling safe, healthy,

and being in an environment that was part of your lifestyle," (CI4609), His conclusion that

Criterion (iii)

was not met was based on the fact that a landfill would purportedly create traffic

problems and would not be "an economic development tool to encourage or retain existing land

uses," as well as his interpretation of the import of the Comprehensive Plan upon the siting

proceedings. (C1461l-12).

Notably, Abel

has

never assisted an applicant in filing an application for siting approval

for a landfill or transfer station, and has llever assisted in the submission of a landfill pem,it to

!EPA. (CI4614.15). He also acknowledged that the Comprehensive Land Use Plan provides for

non-residentiallaod use along the proposed Prairie Parkway, and admitted that Objective 2,1 of

the 2004 Plan inclodes the goal of "explor[ingJ economic development opportunities" which

would include "industrial uses." (C14634-35).

Abel leslified that in his opinion there is no incompatibility between the proposed landfill

facility

and the approximately 2000 acres owued by Mr, H=an, of which it is a part, (C14652-

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53; CI4674). He went on to opine, however, that

in

his view, "[tlhe total acreage

in

that two-

mile area means nothing."(C14652-53).

Mr. Price, attorney for the City, retnmed to this point with Mr. Abel, asking him whether

locating the

subject facility inside land with which it is not incompatible constitutes a

minimization of incompatibility; Abel denied that it would. (C14672-75). He went on to

announce, summarily, that "you can't minimize it and, therefore, it shouldn't go in." (C14679.)

The evidence presented

by Fox Moraine's witnesses clearly showed that the standards of

Criterion (iii) were met, in that it demonstrated that the Applicant's proposal would minimize

incompatibility with the character of the surrounding area, particularly given the fact that the

subject property is buffered

by the substantial land holdings of one of the principles of Fox

Moraine at and around the site, and would minimize the effect on the value of the surrounding

property. The non-scientific testimony presented by self-interested opponents failed to show that

the Applicant did not minimize incompatibility or did not minimize the effect on

nearby

property. Rather, opponents merely demonstrated that their witnesses didn't like the idea of

having a landfill facility in this partie war location, whether because it would be located near their

own property (Sleezer,

Wonn.1ey, and Schneller), because they had objections based on their

zoning and

planning philosophies (Abel), or based on an entirely unscientific "study" that even

the Hearing

Officer easily debunked (Adams).

Hearing Officer and Special Counsel Findings and Recommendations

As with Critetia (i) and

Oil,

the Hearing Officer and Special Counsel both found that,

with minimal conditions, Criterion

(iii)

was met. The Hearing Officer observed that the evidence

showed "[ a Jlmost 85% of the land within the two mile study area is present used for agricultural

purposes" and that "[ m lost of the residential uses located within the study area are greater than

one ntile from the proposed

site." (CI8526). He noted that the "character of the area surrounding

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the ,ite is predominantly agricultural in nature" and that there is no way to know when that use

may change. (CI8527). He noted that the property owned

by Mr. Hamman will serve as a

substantial buffer to the proposed site,

aed that any effect from the landfill would be felt first by

Mr. Hamman. (CI8527). The Hearing Officer observed that the objectors' wimes,es

misunderstood the standard under Criterion (iii), failing to recognize that the statute

acknowledges there will always be some impact to the surrounding area, and that the duty is to

minimize that impact. (CI8527-28). He found the testimony of Adaros to be suspect, and opined

that Sleezer, Wormley, and

Schneller had each provided self-serving, often contradictory

testimony.(CI8528).

Price, Oil behalf of the City's expert staff, conC\U"l"ed that the evidence showed Me.

Hamman's holdings serve as a buffer, and that this, along with the landscaping plan, minimizes

incompatibility. (CI7198).

Price also noted the important role of the property protection plan

in

meeting the criterion. (CI7198)

F.

Criterion (iv): "( (B) ... the facility is located outside the boundary of the IOO-year

floodplain")

In addition to his testimony recited above regarding Criterion (ii), Mr. Moose also

testified that the proposed site lies outside the

100

year flood plain as determined by the Federal

Emergency Management Agency ("FEMA"). (CI0745). Mr. Moose made this determination by

looking at FEMA maps. (C10745-46). No evidence was presented that would show the area was

located

within the 100 year flood plain, therefore this criterion was clearly established.

Hearing Qfficer and Special Counsel Findings and Recommendations

Both the Hearing Officer and Special Counsel found that the evidence was

uncontroverted that Criterion (iv) was met. (CI7199; 18528).

G

Criterion (v) ("the plan of operation, for the facility j, desjgned to minimize the

danger to the surrounding area from fire, spills, or other operational accidents,,)

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Mr. Moose also testified concerning measures incorporated in the Application to prevent

accidental spills, as well as leak detection methods including visual observation. (CI1350-51).

In

addition,

trucks into which leachate will be prnnped will be at a higher elevation so that the hose

either drains into the truck or drains back into the landfill; thus, when a hose is disconnected,

gravity

wilt

cause leachate to drain from one receptacle to the other, thereby severely limiting the

quantity of any possible spilL (Cl1350-51). Moose also testified concerning visual and audio

alanns designed to inunediately alert personnel

if a spill were to develop (C1l538-39), and

testified that security personnel will be present onsite when the facility is closed(Cl0774-75).

Additional testimony

by Mr. Moose regarding operational controls to avoid fire, spills, or

other operational accidents is dis("'Ussed in detail above in the section addressing Criterion

(ii).

Mr. Moose testified that based on rus experience, the Application, and the materials he

referred to during his testimony, it was

rus professional opinion that the plan of operations for the

proposed facility is designed to uriniurize the danger to the surrounding area from fires, spills,

and other operational accidents. (CJ0746).

Mr. Ron Edwards testified

as a representative of Fox Valley Landfill Services, wruch

would be the operator of the proposed facility. (CI0173-74). Edwards is also the vice-president

of Peoria Disposal Company ("PDC''), wruch is an ownerlmember of Fox Valley Landfill

Services ("FVLS"), and he has served as vice president oflandfill operations for five landfills in

Illinois. (C10I73-74).

Edwards testified concerning the oversight that would

be used to minimize the risk of

accidents through vigilant monitoring and proactive inspections to detect potential problems

before they ripen into accidents. He explained that

PDC would provide FVLS with personnel

who would

be fully trained in the management of solid waste, and who would perform routine

daily and weekly inspections;

PDC's own enviromnental compliance department also routinely

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audits personnel and operations. (CIOI88). PDC's compliance coordinator typically visits each

facility every

week, Ihe health and safety coordinator visits each month, the compliance manager

visits every three

monlhs, and Mr. Edwards, as vice-president of landfill operations for PDC,

visits each facility every six monlhs. (C102l2).

Edwards testified that the operator will have the neeessary heavy equipment and trained

and experienced personnel onsite who can respond quickly to contain any fire that might occur.

(Cl0488-490). Employees at PDC facilities receive annual training, as well as monlhly "tool

box"

meetings that are conducted by Ihe beallh and safety coordinator. (Cl05l8).

In

addition,

monthly training sessions would be conducted

by Ihe environmental coordinator at the landfill.

(ClOSI8).

Opponents presented no evidence to show that the Applicant failed to minimize danger to

Ihe surrounding area from fire, spills, or other operationa! accidents.

Hearing Officer and Special Counsel Findings and Recommendations

Once again, both the Hearing Officer and Special Counsel found that,

with

conditions,

the Applicant met the criterion. The Hearing Officer treated Criteria (ii) and (v) together, and

credited the testimony

of Fox

Moraine's witnesses Dronunerhausen and Moose.

Special Counsel Price credited the testimony of Fox Moraine's witnesses as well, and

concluded that wilh the proposed conditions, Criterion (v) was met. (Cl7199).

H.

Criterion (vi) ("the traffic patterns to or from the facility are so designed as to

minimize the impact on existing traffie flows")

Notably, the evidence presented by opponents focused solely on the notion that a landfill

would generally increase traffic in and around Yorkville and surrounding communities, and thus

failed to address the factors important in assessing this criterion (Le., whether the designated

patterns to and from the proposed facility were fonnulated in a way that will minimize the

facility's impact on

existing traffic). The gravamen of the opposition testimony was that any

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increase in traffic, regardless of whether that increase is less than that

from

alternative uses for

the property, would be unacceptable.

Michael Werthman, a traffic and transportation engineer with 17 years of experience who

has worked on approximately 750 different projects, including residential, commercial, and

retail, and involving distribution, manufacturing, and industrial facilities, testified for the

Applicant.(C09038-39). Mr. Wertlunan is a registered professional engineer in lllinois,

Pennsylvania and Wisconsin. (C09041). He holds a Bachelor's of Science degree in civil

engineering

from Michigan State University, as well as a Master's degree from Northwestern

University

(C09041). He has specific experience with solid waste projects, having worked on

30-35 such projects, and has testified in connection with 19 solid waste related projects

(C09042).

Mr. Wertlunan works throughout the greater Chicago area, both on behalf of both private

entities

and units of local government (C09043). Mr. Wertlunan prepared a repor! as well as a

Power Point presentation to summarize his findings. (C09040). He testified that due to its rapid

growth rate and the limitations associated with having only one bridge across the Fox ruver, the

City

of Yorkville can expect to face significant traffic issues, with or without a landfill. (C09044-

45).

In

the case of this project, he conducted a standard, three-phase traffic impact study using

the accepted methodology within the industry and with transportation planning officials.

(C09046). He explained that traffic delays are typically expressed on an "A to P" scale, with A

representing the least amount

of typical delay, and

F

representing the greatest delays. (C09049-

50). Under existing conditions, the intersections that would be most impacted by the proposed

landfill facility are cWTently operating at

"B" and "C" levels (C09081). Even with the additional

landfill-generated traffic, Mr. Wertlunao testified

that they would continue to still operate at the

same levels. (C09081).

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The first phase of his traffic study looked at existing conditions, which was accomplished

by doing field studies.

(C09051-52). Next, he held discussions with various transportation

officials including

mOT, the Kendall County Highway Department, the City of Yorkville, and

other public agencies. (C090SI). He then collected and reviewed transportation-related data,

including existing traffic volumes, approved

and proposed developments, planned and proposed

roadway improvements,

and existing accident data. (C09051-52).

Next, peak period and daily traffic counts were conducted at critical intersections near the

site. (C09052). Finally, he and his group conducted a gap study along Route 71 at the location of

the site access drive. (C09052). Route 71 is a northeast to southwest arterial roadway a two-lane,

undivided cross-section,

and is considered a Class 2 truck route. (C09052). At its intersection

with Route

47, it has separate left tum lanes. (C09052). Routes 47 and 126 are also Class 2 truck

routes, with two-lane undivided cross-sections.

(C09053). All three of these roadways are under

the jurisdiction of IDOT, all are designated arterial truck routes that connect important areas, and

all

carry

both passenger and commercial truck traffic. (C09054-55).

Werthman explained that mOT

has

already received funding to build the first section of

the Prairie Parkway between Dlinois 71 over the Fox River to Route 34, and construction is

scheduled

to begin in 2009. (C09064-65)

In

addition, he testified that mOT proposes to widen

Dlinoi'

47 to a five-lane cross-section with additional intersection improvements between

Kennedy Road

and Dlinoi. 71. (C09066) He also explained that the contract has been awarded

for significant improvements to the intersection of Dlinois 71 and Dlinois 126, and that

construction

was scheduled to begin in the spring of2007. (C09066-67).

The landfill traffic plan calls for use of the arterial roadways of TIlinois Routes 71, 126,

and

47. (C09069-70; C09085).

In

assessing the potential impact the landfill may have on traffic

in the area,

Worthman determined that the increase in traffic will be limited, as much of the same

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volume of traffic that would travel to and from the landfill is already traveling to and from the

landscape waste application facility that currently

operates on the proposed site location.

(C09073.74).

Werthman also explained that if, instead of a landfill, single family homes were built on

the proposed site location, even

if only one home were built per acre, the volume of traffic that

would be generated would

be in excess of 3,300 mps per day, rather than the 494 mps per day

predicted for the landfill.C09075-76).

In

the alternative, if the property

was

developed as a

warehouse

facility, there would be an estimated 57 mps per a"'Ce, per day, rather than the 1 mp

per acre, per day estimated for the proposed landfill facility. (C09077).

An

office development

could

be expected to generate 110 mps per a"'Ce per day. (09077). Moreover, traffic for a landfill

would not be concentrated at a particular time of day, but would instead be expected to occur

throughout the day. (C09077.080).

Under existing conditions, delay times at the intersections in the area are in the

acceptable range. With the landfill.generated traffic, the volume during the peak afternoon travel

period would increase

at, for example, the intersection of TIlinoi, 126 and Illinois 47 by

approximately I percent,

and would increase .t the intersection of Illinois 47 and lliinois 71 by

approximately

2 percent. (C09080.81).

The Application proposes significant improvements in the development of the site access

drive and roadway improvements, including a th.fee..lane access drive

with

two exit lanes.

(C09296). The plan calls for wider radiuses to accommodate trock traffic safely and efficiently,

and for a widening of Illinois 71 to provide separate right and left tum lanes, all at the expense of

the landfill. (C09296; C09314).

Werthmao explained

that the Applicant's development tearn mct with IDOT regarding

the design and location

of the

site access drive on lllinois 71, and received conceptual approval

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for both the design and location. (C09084). He concluded that the ITaffic generated by the

proposed landfill will not have

a significant impact on the existing roadway system, especially

when

compared with the ITaffic that would be generated by the alternative development

possibilities for the IT"",! of land in question. (C09084). Wertlunan also concluded that the

existing roadway system is sufficient to accommodate the

demands of the proposed facility.

(C0908S).

Finally, Werthman concluded that the proposed design of the access drive would be more

than adequate to ensure that traffic demands

can

be accommodated efficiently. (C0908S). In

Werthman's opinion, based

on his study Dfthe proposed plan and the nature of existing ITaffic

flow. the traffic patterns to and from the fadlity were so designed as to minimize the impact on

the existing ITaffic flows. (C09085). His opinion did not rely upon the planned roadway

improvements for the area.

(C09086).

Opponents presented the testimony of Brent Coulter and Steve Corcoran. Coulter's

testimony did not focus on whether the Applicant's traffic design would minimize adverse traffic

impact, as set forth in the aciual statutory eriterion, but, instead, on the physical location of the

landfill

itselt: (CI3124-25). Notably, although Coulter's opinion focused on his belief as to the

purported negative

planning implications associated with the location of the proposed landfill, he

acknowledged that he has no experience or expertise as a planner, and is not a member of the

American Iostilute

of Certified Planners or the American Planning Association. (CI3157-S9;

C13121-22).

In .ttempting

to show that a landfill at the proposed site was just generally a b.d ide.,

Coulter initially testified th.t a landfill would increase area traffic by 20% to 25%, although he

later acknowledged that his conclusion was not supported

by the data gathered. (C13032-3S). He

forther admitted that the

I,SOO trucks per day he listed in his report was at odds with the ITaffic

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study produced by the City of Plainfield, and he aclrnowledged that his claim that the proposed

facility would add a

total of 600 vehicles per day to the road system was incorrect, and

overstated the actual increase in traffic by 20%. (CI3035-37).

Coulter also admitted that although he initially claimed that the proposed routes would

not meet minimum

state truck standards, he never evaluated the routes proposed to be used by

trucks going

to and from the facility to identify the supposed portions of the routes that would

allegedly not meet minimum state truck standards. (CI3079). He further agreed that he had no

data to support his conclusion that truck traffic from the landfill would pose an enhanced or

increased danger to anyone along any portion

of the access routes. (C131 09-1 0).

Coulter agreed that if the subject property were developed into a regional distribution

center, a manufacturing facility, or even a large residential subdivision it would create greater

traffic problems than if developed as a landfill. (CI3088). Again, Coulter's testimony did not

identify a failure to design traffic patterns to minimize the impact on existing traffic flow, but,

instead, simply took the form of a gener.l .tt.ck on the physic.llocation of the proposed facility.

Corcoran was retained by the Village

of Plainfield to comment on Critman (vi) and

foensed his attention almost exclusively on the impact

of the proposed landfill on Plainfield,

which is located 16 or 17 miles from the proposed site. (CI3807, C13810, CI3817). He

acknowledged that accorrllng to Table

2-3 of the Transportation bnpact Analysis for Site

Development, the farthest distance impacts associated with a landfill are recognized was two

miles away, whereas his study regarding the impact on an area 16 to 17 miles

from

the proposed

site. (CI3866-67).

Corcoran testified that the Village

of Plainfield currently faces its

own

substantial

transportation problems, and is trying to decrease the amount

of non-local or through traffic

penetration on a designated truck route in the downtown area. (CI3817-19).

Corcoran

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acknowledged illat in his assessment of Criterion (vi), he did not analyze the potential impacts of

alternate routes. (C13S37). He also testified that he did not study any alternative transport routes

or traffic patterns. (CI3838). He testified that he did not disagree with the conclusion in the

Werthman

Study that the transport routes proposed by the Applicant would have minimal impact

on downtown Yorkville. (CI3819-40). Corcoran also acknowledged that in terms of developed

land use, landfills are one

of the lowest per acre traffic-generating land uses. (C13856).

Fox Moraine's evidence showed that based

On

an in-depth, scientific study of the existing

road, and proposed improvements, traffic patterns to or from the facility were designed to

minimize

ille impact on existing traffic flows (ille standard under Criterion (vi)).

In

contrast, the

opponents' witnesses simply felt that

ille landfill should be built someplace else, and in the case

of Corcoran, showed illat a town located 16 to 17 miles away only wanted to ensure that trocks

associated

wiill ille landfill would not pass Ihrough it, even on designated state troek routes

nmning through it.

Hearing Officer and Special Counsel Findings and Recommendations

Once more, boill ille Hearing Officer and Special Counsel concluded illat, with

conditions, Criterion (vi) was met. The

Hearing Officer remarked on ille number of ways in

which the Applicant's witnesses showed minimization of impact, including numerous safety

improvements to Route 71, as well as design feature, illat minimize the possibility for mud to be

tracked onto ille roadway, and ille plan to allow senti-trailers to enter ille facility outside

normally operating hours for storage so as to minimize trock traffic

on ille roadway dnring peak

traffic hours. (CI8529-30).

He concluded illat the Applicant had done all it could to minimize

traffic under the

current system, but proposed additional conditions to come into playas roadway

improvements are made in the future. (C18530).

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Special Counsel Price observed that the County's expert had made assumptions ''not

recognized

as valid for this or any other development." (CI7199). He further rejected the

objectors' assertion that state trock routes designed for

SO,OOO-pound vehicles would be harmed

if such vehicles actually traveled on them. (CI7199). With conrutions, he, as well as the Hearing

Officer, concurred that Criterion (vi) was met.

I

Criterion (vii) (requirements associated with facilities that

wiD

treat, store, or

dispose

of hazardous

waste)

Mr. Moose testified that the proposed facility will not be treating, storing, or disposing of

hazardous waste. (CI0747). His opinion is based on the Plan of Operations, the Application,

and his testimony.

(C

I

0747). There was no testhnony that bazardous waste would be treated,

stored,

or disposed of at the proposed facility, therefore sullicient evidence to satisfy this

criterion was presented.

Hearing Officer and Special Counsel Findings and Recommendations

The Hearing Officer and Special Counsel both found it was uncontroverted that the

facility will not accept hazardous waste; therefore this criterion was met.

(C I 7200; 18531).

J. Criterion

(viii) ("If

the faoWty is to be located

in

a county where the county board has

adopted a solid waste management plan consistent with the planning requirements of

the Local Solld Waste Disposal Act or the Solid Waste Planning and Recycllug Act, the

facility is consistent with that plan.,,)

As a ihreshold matter, the County has insisted that the Applicaot's Plan does not comport

with Criterion (viii) because the Conoty passed a Resolution on May 4,

2006 which the County

interprets as depriving all municipalities of the right to

act

as local siring authorities. According

to the Conoty, therefore, any Application

to site a laodfill anywhere within Kendall County that

is within the boundaries

of a municipality is automatically inconsistent

with

the County's Plan

and therefore fails under Criterion (viii).

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The evidence at the hearing, however, showed that: (1) the County Board never fonnally

adopted the May

2006 Amendment to the County Solid Waste Plan; (2) the Application is

consistent with the fonna1ly adopted 1995

County Plan and its 2000 and 2005 updates; (3) even

if validly adopted, the May 2006 resolution did not revoke or repeal the prior Plan and Updates,

and (4) regardless of the County's after-the-fact expressions regarding the meaning of the May

2006 resolution, the Applicantion is still consistent with the Plan as amended.

The evidence demonstrated that at the time the subject property was initially located and

identified as a suitable landfill site, it was in unincorporated Kendall

County, and the County

Plan

provides for (and, in fact, expressly contemplates) annexation of unincorporated property

into a municipality, as happened here. Further, the evidence showed that the Application is

consistent with the County Plan because it includes a Host Agreement between the Applicant and

the municipality, which governs the relationship between the two parties and provides

compensation

to the municipality, again, all as required under the County Plan.

Mr. Walter S. Willis, a Senior Planner with Shaw Enviromnental, testified for Fox

Moraine concerning Criterion (viii).

(CII715). Mr. Willis has twenty years of experience doing

solid waste planning, both in Illinois and throughout the country. (C117l6). He holds a Masters

degree in

Public Administration and a Bachelor's degree in Political Science, but more

importantly, he has been a

Project Manager responsible for developing Solid Waste Management

Plans in 38 ofminoi.' 102 counties. (C11745).

Mr. Willis began his career working for the Illinois EPA in the Solid Waste Management

Section, and worked on the first available solid waste disposal capacity report. (CII744). In fact,

he originated the database for the Senate Bill 172 sites. (CII744). He was involved when the

Solid Waste Planning and Recycling Act was first being considered. (CII744). Mr. Willis was

the Lee County Solid Waste Coordinator from 1997 to 2004, and, in that capacity, he helped Lee

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County prepare its Plan. (C1l802).

In

fact, he wrote the document (with input

from

the County

Advisory Committee) that was subsequently adopted by the Board. (CI1802-03).

Mr. Willis testified that in the Fall of 1990, the Kendall Couoty Environmental Task

Force established the Kendall Couoty Solid Waste Management Plan. (C1l748).

In

May of 1992,

a

Solid Waste Needs Assessment was conducted. (CI1748). Mr. Willis explained that the County

Board passed a resolution in 1992 that stated, "Whereas all governmental units have an interest

in and will affect the operation of any waste management system, opportunities for all avenues

and multi-jurisdictional cooperation should be explored and considered."

(CI1738).

In

May

of

1995, the County Board adopted the Phase

II

Solid Waste Management Plan, at which time the

County held extensive public hearings, and received extensive input and involvement from its

Enviromnental Task Force. (CI1748).

In

July of 2000, the first Five Year Update was completed. (CI1748-49).

In

February of

2005, the Ten Year Update to was completed.

(CI1749).

Mr. Willis explained that the County Plan consists of the 1995 Plan and the 2000 and

2005 updates. The earlier Plan has not been superseded by later amending documents. (CII750).

Rather, the Five Year Update, Ten Year Update, and aliistor amendments supplemented the

existing plan substance; they did not repeal previously-adopted portions

of the Plan. (C1l763-

64). Notably, the 2005 Plan Update expressly provides for intergovernmental cooperation

between the

County and municipalities in addressing solid waste issues. (CI1986)

Mr. Willis went on to explain that the County's Plan clearly contemplates municipal

siting of landfills, inasmuch as it states:

Mlf

the County is not the appropriate siting authority, a

Host Community Agreement must be made with the siting authority." (C1l756; CI2003). As

Mr. Willis noled, the County has never removed this language from the Plan. (CI1757). The

Plan therefore requires that if an Applicant sites a landfill in an incorporated area of the County,

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it must have a Host Agreement with the municipality wherein it is sited. (CI1758).

In

this case,

the Applicant

did just that on September 26, 2006. (ClI758-59). The Applicant aod the City

entered into a Host Agreement which provides

that: "Fox Moraine LLC will offer its use of this

fadlity as the host for those residential recycling, reclamation andlor reuse activities as defined

by Section 3.380 of the Act which may from time to time be planned and conducted by the City."

(CI1759) Accordingly, Willis noted that such a Host Agreement is entirely consistent with the

requirement

of the County Plan. (CI1759).

The County Plan further provides that a Host Agreement may be used as an incentive,

compensating the host community and other affected communities for potential environmental,

infrastructure,

economic, aesthetic and other impacts within their jurisdiction. (CI1760).

In

this

case, the Host Agreement provides for the sharing of compensation, providing for the allocation

of all or a portion of the Section 22.l5GJ fees to other entities as deemed appropriate by the City.

(C11760-61).

In

March 2006, when Kendall County was negotiating with Fox Moraine concerning the

potential siting of the landfill Cat a site that was located in unincorporated Kendall County at the

time), the County Board passed a resolution stating that it was appropriate to consider

development

of a solid waste disposal facility within the County. (C1l749; CI297l-72). At that

time,

the County's conduct shows it considered the subject property a feasible site for a landfill.

Moreover, during the time period when Fox Moraine was actively engaged

in

ongoing

negotiations with the County about the possible siting of a landfill on that property, the property

was located

in

an unincorporated area. (C1l755-56).

The

parcel was, however, subsequently

annexed into Yorkville. Again,

and notably, the County Plan does not prohibit a municipality

from annexing land on which a landfill siting has been proposed. (C11743). Rather, it

in

fact

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authorizes the annexation of unincorporated property into a municipality, as occurred in this

case. (C11763).

In

September 2006, the Applicant entered into a Host Agreeroent with the City of

Yorkville, also as envisioned and required by the County Plan, and in December 2006, the

Applicant filed an application for siting approval. (CI1749; CI1763). Thus, the evidence shows

that the subject property on which a landfill facility was proposed to be sited

was located in

unincOlporated Kendall County, was SUbsequently annexed into the City, and became the subject

of a Host Agreement between the Applicant and the City. The evidence therefore showed that

the proposed facility is consistent with the County Plan.

On

May 4, 2006, however, the County Board passed Resolution No. 06.11, which the

County interprets

as denying municipalities the right to act as local siting authorities. Mr. Willis

testified that if the Resolution actually had that effect, it would be in direct conflict with the

planning principles that have guided the County since at least 1995. (C1l737). He went on to

note that although the County interprets the May

4" Resolution as effectively stripping

municipalities

of their right to act as local siting authorities, the legislature has clearly and

expressly authorized both counties and municipalities to act as local siting authorities for solid

waste facilities. (C1l849)

While the County argoes that the May 4,

2006 resolution was intended to prevent Kendall

County's municipalities from exercising their statutory siting jurisdiction, Mr. Willis testified

that the langoago of the resolution was not even effective at accomplishing that. Using an

accepted dictionary definition

of the word "located," Willis concluded that the proposed landfill

was in an unincorporated area of the county at the time it was located and identified as a

potential landfill site. (CI1755.56; Cll762.63). Willis opined that the application was therefore

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consistent with the "plain and ordinary language of the plan," (CI1755)

It

is. well-settled rule of

statutory construction that one cannot look to intent in derogation of plain and ordinary langoage.

As our Supreme Court has explained, where a term is not defined within a

statute)

it must

be assumed that the legislature intended

the

term

to have its ordinary and popularlY understood

meaning,

Landis v, Marc Realty. LLe.,

2009 WL 1416074, *3 (IlL May 21, 2009),

In

such

situations, "[i]t is appropriate to employ a dictionary to ascertain the meaning of an otherwise

undefined word or phrase. n

ld.

Moreover, where it is determined that there are alternative

dictionary definitions of a word in a statute, each

of which

can make sense within the statute, the

statute is deemed ambigoous,

Id.

at 5.

In

construing a statute (which the high court expressly

observed to include municipal ordinances ju

Landis),

an ambiguous tenn is to be given its

broadest. not its narrowest, meaning.

ld.

Here, then,

it

was appropriate for Willis to utilize

a

dictionary to determine the meaning of the undefined term "locate," and to assigo that

term

its

broadest and most ordinary meaning, not its narrowest meaning. This is exactly what Willis did

in his testimony, in construing the Application to be con.,qistent with the County Plan.

It.

is also well established (as observed by the Hearing Officer in his Findings and

Recommendations)

illat ambigoities in langoage are to be resolved against the dmfter. (CI8532).

Finally, since the comments of a county attorney do not constitute evidence, Mr. Willis'

conclusion regarding Fox Moraine's consistency with the plain and ordinary langoago of the

Plan, including the May 4, 2006 Resolution, was unrebutted by any other witness, The testimony

of Willis further showed that the May 2006 Update to the County Plan was never approved by

the County Board, (C11770-72),

Kendall County Board Chairman, John Church, testified that since its inception, the

County's

Plan has been updated every five years, in accordance with State law, and that until the

spring

of 2006, when the County was engaged in negotiations regarding landfill siting, the

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County had never amended its Plan other than on the five-year schedule. (CI2967-68). Church

admitted that in March

2006, the County was approached by Fox Moraine about siting the

proposed facility, at a time

when the subject property wa, located in unincorporated Kendall

County, and that the County then passed an ordinance in order to allow it to consider siting a

landfill. (CI2971-72).

Church testified that at the March 2006 meeting concerning discussions about the

potential siting

of the Fox Moraine landfill, the City asked whether it could be part of the siting

process

if an application was filed, and the County's legal represeotative stated that the siting

authority would whichever entity governed the property where it was located. (CI2976-77).

When asked

by the City's Mayor to confinn that the County and City had in fact discussed, at

the March 2006 meeting, the possibility that the City could enter into its own agreement with the

owner

of the

subject property, Church claimed not to remember the discussion, but qualified his

answer by saying, "now,

I

could be corrected ... " (CI2977-78). However, Church did expressly

acknowledge that after the March 2006 meeting, the County and City "left the meeting in very

general terms talking about the issue that we both knew was coming up, a potential landfill

application ... As we left the meeting, it is my recollection that as we laid those options out,

if the

City wanted to come back to

us to work with us ... they would contact us. They also, of course,

had their options o[working with the applicant directly." (CI2981-82).

Church confirmed that a Host Agreement for

a non-hazardous solid waste facility allows

the

siting authority garner revenue

from

a landfill. (C12924-25). He

further

acknowledged that

the County had entered into such a Host Agreement with Waste Management, a competitor to

Fox Moraine

l

and that the County was also involved in the process of negotiating a second such

agreement with another waste disposal company. (CI2925). Church acknowledged that if the

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County could prevent the City of Yorkville from siting a landfill, the County could, in tum,

effectively ensure that it, alone, could collect revenue for

a landfill, (CI2925-26).

With respect to the contents

of the 2006 Amendment, Church testified that the full and

complete text

of the 2006 Amendment represents the controlling law regarding landfill siting in

Kendall County. (CI2929-30). He further acknowledged that the previously existing langooge of

the Plan (which provides, for example, that if a landfill is to be sited in a municipality, the

applicant should enter into a host agreement with that municipality) was never deleted from the

2006 Amendment. (CI2930-31). He also testified that the May 2006 Resolution provides that

"nothing herein shall be deemed by potential applicants, Kendall County, this Board or other

agencies or the public to indicate that this ... Board has adopted any position on the location of a

non-hazardous waste landfill in Keodall Couuty."(CI2922-23). Notably, Church did not refute

Willis's testimony that the

May 2006 Amendment that purports to amend the Couuty Plan was

never

founally edopted by the Board.

In summary, the proposed fucility is consistent with the County Plan. Both the Plan and

the purported May

2006 Amendmeot expressly provide that siting may be within a municipality:

"If the County is not the appropriate siting authority, a Host Community Agreement must be

made with the siting authority." (C11756). Moreover, the Plan does not prohibit the annexation

of property, as occurred here, and, in fact, allows annexation. (C11743; C1I823).

10 summary, then, testimony by Mr. Willis that the May 2006 Amendment was never

furmally adopted

by the County Board was never refuted by the COlmty, although the Board's

Chairman, Mr. Church, testified at the siting hearing, and had every opportunity to refute it.

There is, therefore, a lack

of evidence that the May 2006 Amendment was ever actually made a

part of the Plan. 10 addition, the 2006 Amendment is internally inconsistent, inasmuch as it both

provides for a municipality to enter into a Host Agreement when

a landfill is located within an

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incorporated area of the County, and simultaneously announces (under the interpretation

propounded by the County) that

nO landfill may be located in an incorporated are. of the County.

Because the

2006 Amendment is ambiguous, it should be construed against the drafter, in this

case

the County.

Finally, if,

in fact, as urged

by

the County, the County Plan strips all municipalities of the

right to act as local siting authorities, then criterion (viii) does not even apply in these

proceedings because the County's Plan is not "consistent with the planning requirements of the

Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act." 415 ILCS

5/39.2(a).

For the reasons set forth above, opponents failed to show that the Applicant did not

meet

any applicable requirements of Criterion (viii).

Hearing Officer and Special Counsel Findings and Recommendations

The Hearing Officer and Special Counsel both observed that Criterion (viii) presents a

legal question. The Hearing Officer observed that the threshold question is whether "located" (in

the context

of the 2006 Resolution) means "located and sited" or whether it means

"found".(CI8532). Hearing Officer Clark opined that the County Board could have avoided the

ambiguity of its resolution by simply drafting the resolution to state Hlocated and sited," if that's

what the County meant; he observed that courts generally interpret ambiguity 'gainst the drafter.

(CI8532). He accordingly recommended that the City Council find that the Applicant met its

burden as

to Criterion (viii), recoguizing that it would likely be up to the Dlinai' Pollution

Control Board

or the courts to make the final legal determination on this question. (CI8532).

Special Counsel Price opined that Willis's testimony set forth a

prima Jacie

interpretation

of the PI .. and also argument for consistency with the Plan as written. (CI7200). He further

observed that the Record contains evidence and testimony to indicate that the County may not

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have adopted the revisions to it<; Solid Waste Management Plan in accordance with st.tutory

requirement<;, which was never countered by opponent<;. (CI7200). He went on to find th.t the

Record "offers no support for the County's closing argument at the hearing: While the Connty

may not agree with the petitioner's argrnnent, the Connty did not come furward with facts or

evidence to support the allegations made in its

attomefs closing argument concerning Mr.

Willis." (CI7200). Ultimately, Special Connsel Price declined to state a recommendation and

instead encouraged the members

of the City Council to undertake their own legal analysis of

whether the Application was consistent with the Plan's requirements. (CI7200).

K.

Criterion

(ix)

(all applicable requirements spedfied by the Board must have been met if

the fadllty

wiJI

be located within. regulated recharge area)

Mr. Moose testified that the proposed facility whlch is the subject of Olis application is

not located within a regulated recharge area as defined by Criterion (ix). (CI0747). There is only

one regulated recharge area in minois, whlch is located near

Pcoria. (CI0747). This facility lies

physically outside the sale regulated recharge area. (CI0747). Because no

evidence was

presented, or could be presented, that would show the subj eet property is located

witllin the

regulated recharge area, the evidence established that Criterion (ix) was met. The City Council's

finding that criteria (ix) was not met offers a truly extraordinary illustration

of the Council's

willingness to utterly disregard the evidence.

Hearing Officer and Special Counsel Findings and Recommendations

Both the

Hearing Officer and Special Counsel fouod it was uncontroverted that this

criterion was met. (CI7201; 18532)

L. So-called "Criterion 10"

Mr. Ron Edwards testified for the Applicant concerning the so-called "Criterion 10." Mr.

Edwards is a certified landfill operator in lllinois with more than 23 years of experience in the

management

of solid waste, and as noted above, is a manager at Fox Valley Landfill Services

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("FVLS"), which has contrru:ted with the Applicant to operate the proposed facility. (ClOI74-

75). Edwards is also the vice-presideot of Peoria Disposal Company ("PDC"), which is an

owner/member

of FVLS. Edwards

has

served as vice president of landfill operations for five

landfills

in minois. (ClOI74-75). Edwards is a past chairman of the National Solid Waste

Management Association, lllinai, Chapter, Landfill Technical Committee to assist the

IEPA and

the minais

Pollution Control Board in the development of solid waste landfill regulations for

Illinois. (ClOl75-76).

Mr. Edwards testified that PDC, an owner/member of Fox Valley Landfill Services, has a

broad range of experience in the field of waste management operations, and has been in the

waste disposal and management business for

90 years. (CI0176-180). PDC operates six solid

waste landfills, and its affiliates include a number of collection and transportation companies, as

well as PDC Laboratories, Inc., in Peoria, which provides local drinking water and waste water

testing services to many municipalities in the State of lllinois. (CIOI79-80; CIOI91). Another

PDC affiliate (PDC Technical Services) also services numerous municipal clients. (CI0l80).

As noted above, PDC is an owner/member of FVLS, a newly formed company that

has

contracted to serve as the operator of the proposed facility. (CI0190). Upon issnance of a permit

by the

State, FVLS would be responsible for compliance matters at the facility. (C10323-25). As

a new entity,

FVLS

has no record to examine, however, its owner/member

PDe

record of environmental compliance.

PDC's record for environmental compliance reveals that doting its 90 year history of

waste management, it

has

received only minor violation notices. (CI0193-CI0200). During that

time, there have been only

six violations that resulted in penalties, and one Supplemental

Environmental

Project that was agreed to without. stipulation of a violation. (CI0200). Since

1990, PDC

has

had 350 inspections of its facilities without a violation. (CI0457).

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Accordingly, the evidence showed that the entity that would be operating the landfill

facility,

FVLS, is a new company with no existing operating record of its own, but which will

draw upon the expertise

of one of its owners, PDC, whicb has demonstrated an excellent, and,

indeed,

award-wimring history of compliance in operating landfills, particularly duting the last

two decades. There was) therefore, no relevant and reliable evidence presented at the hearing

that would justify denial based on "Criterion 10."

Hearing Officer and Special COWlsel Findings and RecoI11Inendations

Both the Hearing Officer and Special Counsel addressed the "Criterion lOil question of

operating history in their discussions of Criterion (ii). The Hearing Officer opined that Fox

Moraine and the proposed operator,

FVLS, have no operating histories, although the operating

history

of the related LLC's was discussed in depth. (CI8524). Although he concluded that none

had exemplary histories, he observed that there had been few violations in the last

ten years.

(CI8524).

Special Counsel Price opined that Edwards' testimony "highlighted the paradox that the

more experienced the operator is, the more of a history of regulation and enforcement there will

be to judge that operator upon." (CI7192). He included in his reeommendations a number of

conditions designed to ensure there would be appropriate oversight by qualified individuals, at

Fox Moraine's expense. (CI7192-97).

M.

Summary of the Evidence on the Statutory Criteria

This case is controlled by

Industrial Fuels

&

Resources,

in that there was simply no

competent evidence presented by the objectors on any criterion.

The

City denied siting based on an alleged failure to meet Criteria (i), (ii), (iii), (v), (vi),

(viii)

and (ix).

In

the case of Criterion (i), objectors presented the testimony of a retired industrial

arts teacher, who admitted that his opinions were based on his internet research and review of

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newspaper articles, concerning which he performed no scientific evaluation. His opinions on

Criterion (i) may be sunnnarized as a wholesale fiat that new landfills aren't needed in TIlinois,

and that the proposed service area should consider shipping its waste by rail to a downstate

landfill, although he was not sure that

rail lines actually pass near enough to that facility to make

it feasible. Clearly, such testimony does not establish that

Criterion (i) was not met.

In

the case of Criterion

(iii),

as discussed above, the objectors' so-called experts either

misunderstood the criterion, lacked relevant expertise, or were motivated by personal pecuniary

interest (or some sordid combination

of the

three).

In

the case

of Criterion

(vi), the objectors'

witnesses were nominally experts, in that they were traffic engineers, but they unifonnly

misunderstood that the plain language

of the

criterion assumes that there will be some associated

increase in traffic, and that this is therefore not inherently unacceptable. the opposition The

Hearing Officer and Special Counsel for the City both recognized that the Applicant's evidence

regarding

Criterion (ix) was uncontested.

Public health, safety and welfare is considered by many to be the most importaot

criterion. Here, on

Criterion (ii) and related Criterion (v), only two people were willing to testify

for the objectors under oath: one,

Mr. Schmanski, was unqualified by virtue of his lack of

experience with the subject matter, and the other, a retired teacher, readily adntitted his

lad

of

teclmical and scientific expertise.

With respect to

Criterion (viii), Fox Moraine presented an eminently qualified witness

with decades

of experience developing Solid Waste Management Plans, who testified that, at

best, the language

of the County Plan was internally inconsistent and ambiguous. To counter this

evidence, objectors presented the Chairman of the County Board, whose testimony was largely

predicated on the County's aspirational goals, i.e., what it hoped to accomplish with the 2006

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Resolution. Notably, the Chainnan never attempted to counter the testimony by Fox Moraine's

expert that the 2006 Amendment was never properly adopted

by the County Board.

That leaves only voluminous public comment to rebut Fox Moraine's overwhelmingly

strong evidence

in

support of its case. While some of the poblic comment was freely

acknowledged

scientific and authoritative.

Under 35 m.Adm.Codc §101 .628(b), public comment must be received and considered

at this type

of hearing, but the rule cautions that, "Written statements submitted without the

availability of cross-examination, will be treated as public comment in accordance with sub-

section (c) of this se"'tion and will be afforded less weight than evidence subject to cross-

examination." The principle that public comments are not entitled to the same weight as expert

testimony submitted under oath and subject to cross-examination, and should accordingly receive

a lesser weight, has been consistently endorsed by this Board.

See, e.g., City

~fGeneva

v.

Waste

Mgmt. of Illinois,

PCB 94-058, 1994 WL 394691, *12 (July 21, 1994);

Donald McCarrell and

Ann McCarrell

v.

Air Distribution Assoc" Inc

., PCB 98-55, 2003 WL 1386319, *3 (March 6,

2003);

Landfill

33,

Ltd

. v .

Effingham County Board and Sutter Sanitation Services, Stock

&

Co.,

PCB 03-043

&

03-052, 2003 WL 913440, *8

(Feb.

20, 2003).

The Board is not free to disregard an applicant's expert evidence or the absence of any

credible opposition evidence in making its decision, and may not base its decision on

speculation, or on unreliable or incompetent evidence. Rather, to rule against the applicant on

any of the substantive siting criteria, the Board must find competent rebuttal or impeacbment

evidence in the

record.

Indus. Fuels

&

Res. Illinois, Inc.

v.

PCB,

227 lll.App.3d 533, 592 N.E.2d

148

(1' Dist. 1992). Once an applicant makes a

prima facie

case on a criterion, the burden of

proof shifts to the opponents to rebut the applicant's case. Claims by opponents that simply

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counter the applicant's conclusions are insufficient and, in fact, prejudicial if not supported by

competent evidence.

People

v.

Nuccio,

43 Ill.2d 375, 253 N.E.2d 353 (1969).

In

this case, the evidence was overwhelming: the Applicant estllblished that it met all the

siting criteria, but the City denied siting anyway. The Board is in a position to correct that

erroneous decision, which was clearly against the manifest weight

of the evidence.

CONCLUSION

Siting a landfill is difficult in the best of circwnstances, and Fox Moraine encountered far

worse than the best of circumstances. Not the least of these was the fact that a business

competitor was seeking to site a landfill in a competing political jurisdiction. The County

attorney (Mike Blazer) who made it

his business to repeatedly appear to oppose the landfill at

City Council meetings,

legitimized and emboldened the opposition group, which originally, as is

often Ime, consisted mostly of nearby residents who didn't want a landfill in the neighborhood.

This Board surely knows,

from the experiences of Waste Management and Town

&

Country in Kankakee County, and the City of Kankakee respectively (well-documented in cases

before this Board), that the existence

of competing proposals seems to cause an exponential

increase in the controversy surrounding a siting application, That increase due to a competitor is

especially unfortunate here, where, unlike the applicants in Kankakee County, Fox Moraine was

not seeking

to build a landfill in or near a dolomite aquifer. Rather, as evidenced in the review of

testimony related to the siting criteria, Fox Moraine's proposed location is among the most

geologically sound and protective of the environment that most of the professionals associated

with the projeet have ever seen.

It is literally an unfortunate case of the perfeet site in the worst

possible political climate.

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The mandate of our Supreme Court in

Town

&

Country Utilities v. PCB,

225 ll1.2d 103

(2007), suggests that the BolIt'd take a more pro.ctive and aggressive role in landfill siting

decision process. The Supreme Court has made clear that the decision of the local siting

authority is simply an interim decision,

and that it is ulthn.tely up to this Board to determine

when an applicant has met the siting

requirements set forth in the Illinois Enviromnental

Protection Act

..

!d.,

225 m.2d at 118-21. The Court in

Town

&

Country

sagely observed that the

members

of this Board possess the kind of technical qualifications City Councils and Counly

Boards lack, and that it is the Board that has the knowledge and expertise to determine whether

the interim decision of a City Council requires correction ot, in some cases, reversal. As Section

39.2 of the Act makes clear, a siting decision must be predicated on more than the ambitions of

local politicians and the unwarranted fears of nearby landowners, and as our Supreme Court

made clear in

Town

&

Country,

the final responsibility for the decision on siting approval lies

with this Board.

Alderman Munns' frustration over the heavy burden

of having to make a decision he felt

unqualified

to make is well taken, particularly in light of the terrible, and in some cases

terrifying, pressure placed upon aldermen in this case. The Board is

urged to remember that kind

of frustration when fashioning a remedy to the fundamental unfairness that occurred here.

Unfortunately, a remand for new proceedings would serve

no useful purpose. The City'S action

here ''was so patently not quasi-judicial that

the limited first aid available under remand is

incapable of rehabilitating the record where the record can support a proper decision. n

Concerned Citizens for a Better Environment

v.

City of Havana and Southwest Energy

Corporation,

PCB 94-44 (July 21, 1994, order on motion for reconsideration).

Given lhe outstanding geology

of this site and the state-of-the-art design presented in the

Application (both factors being acknowledged in the reports

of Mr. Clark and Mr. Price), the

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Board can reverse outright with complete confideuce that there is no danger of a threat to the

environment

In

fact, no other action is plausible, because the Record cannot support a denial.

While the City does not have the power to impose conditions on a denial, Fox Moraine is

unaware of any prohibition on the Board's imposition of conditions if it reverses that denia1.

Since the conditions suggested by the Hearing Officer and Special Counsel represent a judgment

based

on over fifty year.; of collective siting experience by these two gentlemen, aod since Fox

Moraine admittedly would not have appealed from an approval subject to those conditions, Fox

Moraine is willing to accept the conditiona contained in the Clark and Price reports if the Board

reverses the

denial.

These conditions are, quite

frankly,

not necessary, but they are not onerous

and represent only minimal modifications and clarifications of Fox Moraine's Plan.

Accordingly, Fox Moraine understands and appreciates the additional comfort level that its

acceptance

of these

conditions may bring to all concerned.

All of the contributors to this brief have both won and lost cases before the Board

in

the

past, and have even been fierce adversaries at times. Enough case law in siting has developed

since the passage of Senate Bill 172 that almost any legal conclusion can be supported by a

marginally relevant precedent.

In

the final analysis, however, this case isn't about legal research,

selective excerpting

of the record, or any of the other techniques of "good lawyering," This case

is about right and wrong,

At that fundarneetal level, two things stand out: The first is that what happened to Fox

Moraine here doesn't comport

with

basic American values of fairness, much less the

fundamental fairness required by the Act. The second is that the Supreme Court's decision in

TOl1m

&

Country

represents an invitation, if not a mandate, to the Board to take a more active

role in ensuring the appropriateness of siting decisions than it has heretofore.

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This is the

case~

and now is the time, for the Board to accept the Supreme Court's

invitation and place technical expertise, not political ambitions and unbridled paranoia, at the

helm.

Dated:

"

Charles F. Holsten

Hinshaw

&

Culbertson LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 611 05-1389

815-490-4900

George Mueller

Mueller Anderson, P.C.

609 Etn. Road

Ottawa, Illinois 61350

815-431-1500

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AFFIDAVIT OF SERVICE

The undersigned, pursuant to Ihe provisions of Section 1-109 of Ihe Illinois Code of Civil

Procedure, hereby under penalty ofpetjury under

Ihe laws oflhe United States of Ametica,

certifies

Ihat On June 12,2009, sbe served a copy oflhe foregoing upon:

Via E-Mail- ballorab@ipcb.state.il.usl

Bradley

P. Halloran

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center

1000 W. Randolph St., Ste. 11-500

Chicago, 1L 60601

Via E-Mail- jharkness@momlaw.com

James S. Harkness

Momkns McCluskey,

LLC

1001 Warrenville Road, Suite 500

Lisle, 1L 60532

ViaE-mail.

HINSHAW

&

CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Rockford,lL 61105-1389

(815)

490-4900

Via

E-Mail- domhrowski@wildman.com

Leo P. Dombrowski

Wildman, Harrold, Allen

&

Dixon

225 West Wacker Dr.

Snite 3000

Chicago, 1L 60606-1229

Via E-Mail- eweis@co.kendall.il.us

Eric C. Weiss

Kendall County State's Attorney

Kendall County Courthouse

807 Johu Street

Yorkville, 1L 60560

705J5408vl 863858 62168

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