ILLINOIS POLLUTION CONTROL BOARD

October 1, 2009

FOX MORAINE, LLC,

Petitioner,

v.

UNITED CITY OF YORKVILLE, CITY

COUNCIL,

Respondent,

KENDALL COUNTY,

Intervenor.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

PCB 07-146

(Pollution Control Facility

Siting Appeal)

RICHARD S. PORTER OF HINSHAW & CULBERTSON, LLP AND GEORGE MUELLER

OF MUELLER ANDERSON PC APPEARED ON BEHALF OF PETITIONER;

JIM MCCLUSKEY OF MOMKUS MCCLUSKEY LLC, APPEARED ON BEHALF OF THE

INTERVENOR;

LEO P. DOMBROWSKI AND ANTHONY G. HOPP OF WILDMAN, HARROLD, ALLEN &

DIXON APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

SUMMARY OF THE OPINION

Fox Moraine, LLC (Fox Moraine) petitioned the Board seeking review of a 2007 decision

of United City of Yorkville City Council (Yorkville) denying siting of a pollution control facility

requested by Fox Moraine in Yorkville, Kendall County. Yorkville’s decision denies siting

finding that the application did not meet the statutory criteria i, ii, iii, v, vi, and viii, of Section

39.2(a) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(a) (2008)) and that the prior

operating history of the operator was considered against Fox Moraine

1

1

Yorkville and Fox Moraine refer to the operator qualification consideration as the “tenth

criterion” and Yorkville’s resolution denying siting refers to criterion ix as not being met.

However, in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2008)), the language that allows a

decisionmaker to consider operating experience is an unnumbered, unlettered paragraph

following criterion ix.

when considering criteria

ii and v (

see

415 ILCS 5/39.2(a)(ii) and (v) (2008)). Fox Moraine challenges the decision by

arguing that the proceedings were fundamentally unfair and the findings on criteria were against

the manifest weight of the evidence.

---

2

Kendall County has intervened in the proceeding and Friends of Greater Yorkville

(FOGY) and the Village of Plainfield (Plainfield) filed

amicus curiae

briefs. Each filed a brief in

support of Yorkville’s decision that Fox Moraine failed to establish that the facility would meet

the criteria of Section 39.2 of the Act (415 ILCS 5/39.2 (2008)).

The record developed in this proceeding before Yorkville is over 18,000 pages. Before

the Board, hearing was held on three separate days and the parties filed substantial briefs. A

careful review of the record and the arguments leads the Board to conclude that the Yorkville

proceedings were fundamentally fair. The Board also concludes that the record supports

Yorkville’s findings on the six challenged criteria and Yorkville’s decision on the operating

history of the applicant. Therefore the Board affirms Yorkville’s decision denying siting of a

pollution control facility

The Board begins the opinion by setting forth the relevant procedural and legal

backgrounds. The Board will next summarize the facts beginning with facts related to the

challenge of fundamental unfairness (

see

pages 6-15) and then the facts relevant to the criteria

(

see

pages 16-34). Before proceeding to the merits, the Board will address an argument on the

issue of credibility of Ms. Rose Ann Spears (

see

page 34). The Board will then present the

arguments on fundamental fairness by Fox Moraine (

see

pages 35-44), Yorkville (

see

pages 44-

52), FOGY (

see

pages 52-53), and then Fox Moraine’s reply (

see

pages 53-59). The Board will

frame the issues on fundamental fairness (

see

pages 59) followed by the Board’s discussion and

findings on fundamental fairness (

see

pages 59-64).

The Board will then summarize the briefs of Plainfield and Kendall County (

see

pages

64). The Board will present the arguments on the challenged criteria beginning with arguments

made generally on the criteria (

see

pages 64-68). Next the Board will address arguments and

findings on criteria i (

see

pages 68-70), iii (

see

pages 70-74), vi (

see

pages 74-76), and viii (

see

pages 76-78), individually. The Board will discuss criteria ii, v, and operator history together

(

see

pages 78-82).

PROCEDURAL BACKGROUND

On June 27, 2007, Fox Moraine timely filed a petition asking the Board to review a May

24, 2007 decision by Yorkville that denied siting approval for petitioner’s proposed pollution

control facility in Yorkville, Kendall County. On July 12, 2007, the Board accepted the petition

for hearing. On August 30, 2007, Yorkville filed the record (C).

On July 25, 2007, Kendall County filed a motion to intervene in this proceeding, which

the Board granted on August 23, 2007. On November 16, 2007, FOGY filed a motion to

intervene in this proceeding. On November 20, 2007, Fox Moraine filed an objection to FOGY’s

motion to intervene. Also on November 2, 2007, Plainfield filed a motion seeking leave to file

an

amicus curiae

brief. On December 7, 2007, the Board denied FOGY’s motion to intervene;

however the Board allowed FOGY to file an

amicus curiae

brief. On December 7, 2007, the

Board granted Plainfield’s request to file an

amicus curiae

brief.

---

3

On September 23, 2008, Fox Moraine filed a “First Amended Petition for Review” and

on September 26, 2008, a “Second Amended Petition for Review”. On November 20, 2008, the

Board accepted the amended petitions.

On April 21, 22, and 23, 2009, hearing was held before Board Hearing Officer Bradley

Halloran (4/21Tr., 4/22Tr., 4/23Tr.). After the close of hearings, on April 24, 2009, Fox Moraine

filed a motion for a finding that Valerie Burd was not a credible witness. After allowing for

responses, on May 21, 2009, Hearing Officer Halloran declined to make a finding that Ms. Burd

was not credible.

On June 12, 2009, Fox Moraine filed a brief (FMBr.) and a supplement (FMBr2) along

with a motion for leave to file a brief of over 50 pages in length. On July 17, 2009, Yorkville

filed a brief (YBr.) along with a motion for leave to file a brief over 50 pages. Also on July 17,

2009, Plainfield (VBr.) and Kendall County filed briefs (KCBr.). On July 20, 2009, FOGY filed

the

amicus curiae

brief (FOGYBr.) On July 31, 2009, Fox Moraine filed a reply brief (Reply).

The Board grants the motion to file the supplement to the brief and the motions to file

briefs in excess of the Board’s page limit.

LEGAL BACKGROUND

The following section delineates the specific statutory provisions at issue in this

proceeding and then discusses the legal standards to be applied by the Board when deciding the

issues.

Statutory Provisions

Section 3.330(a) of the Act defines a pollution control facility as “any waste storage site,

sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste

incinerator.” 415 ILCS 5/3.330(a) (2008). Section 3.330(b) defines a new pollution control

facility to include “the area of expansion beyond the boundary of a currently permitted pollution

control facility. 415 ILCS 5/330(b) (2008).

Section 39.2(a) of the Act requires that an applicant seeking approval for siting a

pollution control facility must provide evidence demonstrating that the nine criteria listed in

subsections (i) through (ix) are met. 415 ILCS 5/39.2(a) (2008). The specific criteria at issue in

this proceeding are criteria (i), (ii), (iii), (v), (vi), (viii), (ix) and the provision regarding operator

experience, which provide:

(i)

the facility is necessary to accommodate the waste needs of the area it is

intended to serve;

(ii)

the facility is so designed, located and proposed to be operated that the

public health, safety and welfare will be protected;

---

4

(iii)

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;

* * *

(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;

(vi)

the traffic patterns to and from the facility are so designed to minimize the

impacts on existing traffic flow;

* * *

(viii) if the facility 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 Solid Waste Disposal Act or the Solid Waste

Planning and Recycling Act, the facility is consistent with that plan; for

purposes of this criterion (viii), the "solid waste management plan" means

the plan that is in effect as of the date the application for siting approval is

filed;

(ix)

if the facility will be located within a regulated recharge area, any

applicable requirements specified by the Board for such areas have been

met.

The county board or the governing body of the municipality may also consider as

evidence the previous operating experience and past record of convictions or

admissions of violations of the applicant (and any subsidiary or parent

corporation) in the field of solid waste management when considering criteria (ii)

and (v) under this Section. 415 ILCS 5/39.2(a)(i), (ii), (iii), (v), (vi), (viii), (ix)

(2008).

Section 40.1(a) of the Act provides:

If the county board . . . refuses to grant or grants with conditions approval under

section 39.2 of this Act, the applicant may, within 35 days after the date on which

the local siting authority disapproved . . . siting, petition for a hearing before the

Board to contest the decision of the county board or the governing body of the

municipality *** In making its orders and determinations under this Section the

Board shall include in its consideration the written decision and reasons for the

decision of the county board or the governing body of the municipality, the

transcribed record of the hearing held pursuant to subsection (d) of Section 39.2,

and the fundamental fairness of the procedures used by the county board or the

governing body of the municipality in reaching its decision. 415 ILCS 5/40.1(a)

(2008).

---

5

Siting approval is to be granted only if a proposed facility meets all nine of the criteria set

forth in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2008)).

See

Town & Country Utilities,

Inc. v. PCB, 225 Ill. 2d 103, 117, 866 N.E.2d 227, 235 (2007);

see also

Concerned Adjoining

Owners v. PCB, 288 Ill. App. 3d 565, 576, 680 N.E.2d 810, 818 (5th Dist. 1997); Land and

Lakes Co. v. PCB, 319 Ill. App. 3d 41, 48, 743 N.E.2d 188, 194 (3rd Dist. 2000).

Fundamental Fairness

The Board must review the proceedings before the local siting authority to determine if

the proceedings were fundamentally fair. The courts have given the Board some guidance on

this issue. In E & E Hauling v. PCB, 116 Ill. App. 3d 586, 451 N.E.2d 555 (2nd Dist. 1983)

aff’d,

107 Ill. 2d 33, 481 N.E.2d 664 (1985), the court indicated that fundamental fairness refers

to the principles of adjudicative due process and a conflict of interest itself could be a

disqualifying factor in a local siting proceeding if the bias violates standards of adjudicative due

process. E & E Hauling, 116 Ill. App. 3d at 596, 451 N.E.2d at 564. Further, in E & E Hauling,

the appellate court found that although citizens before a local decisionmaker are not entitled to a

fair hearing by constitutional guarantees of due process, procedures at the local level must

comport with due process standards of fundamental fairness. The court held that standards of

adjudicative due process must be applied.

See also

Industrial Fuels & Resources v. PCB, 227 Ill.

App. 3d 533, 592 N.E.2d 148 (1st Dist. 1992); Tate v. Macon County Board, 188 Ill. App. 3d

994, 544 N.E.2d 1176 (4th Dist. 1989). Due process requirements are determined by balancing

the weight of the individual’s interest against society’s interest in effective and efficient

governmental operation. Waste Management of Illinois Inc. v. PCB, 175 Ill. App. 3d 1023, 530

N.E.2d 682 (2nd Dist. 1988).

The courts have indicated that the public hearing before the local governing body is the

most critical stage of the site approval process. Land and Lakes Co. v. PCB

, 245 Ill. App. 3d

631, 616 N.E.2d 349, 356 (3rd Dist. 1993). The manner in which the hearing is conducted, the

opportunity to be heard, the existence of

ex parte

contacts, prejudgment of adjudicative facts,

and the introduction of evidence are important, but not rigid, elements in assessing fundamental

fairness. Hediger v. D & L Landfill, Inc.

, PCB 90-163 (Dec. 20, 1990). The courts have also

indicated that fundamental fairness must include the opportunity to be heard and impartial

rulings on evidence. Daly v. PCB

, 264 Ill. App. 3d 968, 637 N.E.2d 1153, 1155 (1st Dist. 1994).

Legal Standards for Board Review of Criteria

In reviewing the decision of a local government disapproving siting based on the nine

statutory criteria, the Board must apply the “manifest weight of the evidence” standard of review.

Land and Lakes Co. v. PCB, 319 Ill. App. 3d at 48, 743 N.E. 2d at 197; Waste Management of

Illinois, Inc. v. PCB, 160 Ill. App. 3d 434, 513 N.E.2d 592 (2nd Dist. 1987); City of Rockford v.

PCB, 125 Ill. App. 3d 384, 465 N.E.2d 996 (2nd Dist. 1984). A decision is against the manifest

weight of the evidence if the opposite result is clearly evident, plain, or indisputable from a

review of the evidence. Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Harris v.

Day, 115 Ill. App. 3d 762, 451 N.E.2d 262 (4th Dist. 1983). The province of the hearing body is

to weigh the evidence, resolve conflicts in testimony, and assess the credibility of the witnesses.

---

6

Merely because the Board could reach a different conclusion is not sufficient to warrant reversal.

City of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996; Waste Management of Illinois, Inc. v.

PCB, 122 Ill. App. 3d 639, 461 N.E.2d 542 (3rd Dist. 1984); Steinberg v. Petta, 139 Ill. App. 3d

503, 487 N.E.2d 1064 (1st Dist. 1985); Willowbrook Motel Partnership v. PCB, 135 Ill. App. 3d

343, 481 N.E.2d 1032 (1st Dist. 1985).

The Board will not disturb a local siting authority’s decision regarding the applicant’s

compliance with the statutory siting criteria unless the decision is contrary to the manifest weight

of the evidence.

See

Concerned Adjoining Owners, 288 Ill. App. 3d at 576; 680 N.E.2d at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197. “That a different conclusion

may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or

indisputable.” Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818,

quoting Turlek v. PCB, 274 Ill. App. 3rd 244, 249, 653 N.E.2d 1288, 1292 (1st Dist. 1995). The

Board may not reweigh the evidence on the siting criteria to substitute its judgment for that of

the local siting authority.

See

Fairview Area Citizens Taskforce v. PCB, 198 Ill. App. 3d 541,

550, 555 N.E.2d 1178, 1184 (3rd Dist. 1990); Waste Management of Illinois, Inc. v. PCB, 187

Ill. App. 3d 79, 81-82, 543 N.E.2d 505, 507 (2nd Dist. 1989); Tate v. PCB, 188 Ill. App. 3d 994,

1022, 544 N.E.2d 1176, 1195 (4th Dist. 1989). “[T]he manifest weight of the evidence standard

is to be applied to each and every criteria on review.”

See

Concerned Adjoining Owners, 288 Ill.

App. 3d at 576, 680 N.E.2d at 818.

The local siting authority weighs the evidence, assesses witness credibility, and resolves

conflicts in the evidence.

See

Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d

at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Fairview, 198 Ill.

App. 3d at 550, 555 N.E.2d at 1184; Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195. Where

there is conflicting evidence, the Board is not free to reverse merely because the local siting

authority credits one group of witnesses and does not credit the other.

See

Waste Management

,

187 Ill. App. 3d at 82, 543 N.E.2d at 507. “[M]erely because the [local siting authority] could

have drawn different inferences and conclusions from conflicting testimony is not a basis for this

Board to reverse the [local siting authority’s] finding.” File v. D & L Landfill, Inc.

, 219 Ill. App.

3d 897, 905-906, 579 N.E.2d 1228, 1235 (5th Dist. 1991).

FACTS

The Board begins the recitation of facts by summarizing the activities which took place

prior to the filing of the application which are relevant to the claims that the proceedings were

fundamentally unfair. The Board will next elaborate on the facts which occurred after the filing

of the application which also relate to charges that the proceedings were fundamentally unfair.

The Board will then summarize the facts in evidence on each of the criteria and the operating

history of the operator.

Pre-application Activities

Fox Moraine’s landfill activities began in the Spring of 2006 with the Yorkville city

attorney, John Wyeth, authoring confidential memos for the city council concerning the

annexation of property to Yorkville to facilitate jurisdiction over landfill siting. 4/21Tr. at 198.

---

7

In late August 2006, representatives of Fox Moraine, Charles Murphy and James Burnham, held

a series of meetings with city council members to advise them of Fox Moraine’s intentions.

4/22Tr. at 177-178, 206.

On September 25, 2006, Yorkville’s City Planning Commission (Commission) met to

discuss the annexation of property owned by Donald Hamman; the property that the Fox

Moraine landfill was ultimately proposed to be sited upon. C00056-273; FM Exh. 1. The

meeting occurred over two months before the filing of the landfill siting application. C000889-

5953. At that meeting numerous members of the public spoke in opposition to the annexation

including Arden Plocher. C00097-98, 170; FM Exh. 1 at 109. Todd Milliron also spoke in

opposition of the annexation numerous times. C00079-81, 98, 106, 134, 138-39, 166, 193-194;

FM Exh. 1 at 18, 37, 45, 73, 77, 105, and 132. During the meeting, applause for anti-landfill,

anti-annexation statements occurred 32 times.

See generally i.e.

C00080, 95, 96, 97, 104; FM

Exh. 1 at 19, 34, 35, 36, 37, 43.

On September 26, 2006, the Yorkville city council met to consider annexation of the

property and the meeting was again attended by many opponents. C00274-568; FM Exh. 2.

Yorkville was also considering vacating a road, approving a host agreement and amending the

landfill siting ordinance.

Id

. Mr. Milliron again spoke several times to the applause of the

audience.

See generally i.e.

C00314-18; FM Exh. 2 at 22-26. This meeting also had several

outbreaks of applause for anti-landfill, anti-annexation sentiments.

See generally i.e.

C00308,

314, 317-20, 326, 352, 387; FM Exh. 2 at 16, 22, 25-28, 34, 60, 95. Another opponent who

spoke against the annexation was Ron Parrish, an officer in FOGY.

See generally i.e.

C00374-

381; 4/21Tr. at 161.

On September 26, 2006, Kendall County’s special environmental counsel, Michael

Blazer spoke. C00456-475. Mr. Blazer presented the opinion of the Kendall County State’s

Attorney that the Kendall County Solid Waste Management Plan prohibited siting of a landfill in

Yorkville. C00460-471; FM Exh. 2 at 168-179. Mr. Blazer also opined that the host agreement

between Yorkville and Fox Moraine was inferior to the host agreement between Kendall County

and a competing landfill operator. C00467-470. Mr. Blazer informed Yorkville that Kendall

County would oppose any attempt to develop the landfill near Yorkville and told the city council

to vote no on annexation to stop the siting. C00469-71; FM Exh. 2 at 177-179.

Mr. Wally Werderich spoke against annexation at the hearings and characterized the tone

of the public comments regarding annexation as being opposed. 4/21Tr. at 302-303. Mr.

Werderich indicated that Mr. Gilson vehemently made the point that annexation was intended to

facilitate a landfill siting and the best way to stop siting was to oppose annexation.

Id

.

During the course of the two days of hearing on annexation, Ms. Valerie Burd appears to

have changed her position from support of annexation and the landfill to opposition. 4/22Tr. at

158-159.

After the vote to annex the property on September 26, 2006, a series of meetings of both

the Commission and the city council were held to discuss the host agreement, vacating Sleepy

Hollow Road and re-annexation of the property due to technical issues.

See

C00794-870, 876-

---

8

888; FM Exh. 3-8. Meetings that took place between October 10, 2006 and November 30, 2006

included several verbal attacks on the mayor and aldermen of Yorkville for the approval of the

annexation.

Id

. Ms. Spears and Ms. Burd were vocal opponents to annexation and the vacating

of Sleepy Hollow Road.

Id

. At the January 23, 2007 meeting of the city council, Ms. Burd

passed out “substantiating information on why the annexation agreement could be seen as being

breached” and supporting Ms. Spears’ position that Yorkville should be able to renegotiate.

C06282-06283.

Charles Murphy, the project manager for Fox Moraine, testified that he has been involved

in five or six landfills in Illinois. 4/22Tr. at 171, 173. He testified that in this case he was

involved in the annexation hearings as well as subsequent meetings, and the annexation meetings

were unusual because interruptions by opponents were intended to connect action on annexation

with the landfill project. 4/22Tr. at 178-179. Mr. Murphy indicated that the host agreement

continued to be brought up at subsequent meetings.

Id

. Mr. Murphy observed that members of

the public were aggressive and taunting of and cackling at the elected officials was occurring.

4/22Tr. at 181. Mr. Murphy observed opponents of the annexation cheering Ms. Spears and Ms.

Burd. 4/22Tr. at 183-185. Mr. Murphy believed in his experience this was one of the worst

hearings he attended. 4/22Tr. at 187.

Actions After Filing of Application

On December 1, 2006, Fox Moraine filed an application seeking siting approval for a

landfill to be sited in Yorkville, Kendall County. C00891-5953. Attorney Larry Clark was

appointed hearing officer to preside over the hearings held by Yorkville on the siting application.

C08092. Hearings were held on 24 days beginning March 7, 2007 (C08090) and ending on April

20, 2007 (C15628). Derek Price was the special counsel for Yorkville at the hearings. C08095.

Testimony Concerning Alleged Bias of Council Members

Rose Ann Spears.

Ms. Spears has served 13 years as aldermen and was re-elected two

years ago, but did not run her campaign on an anti-landfill platform. 4/21Tr. at 42, 124.

Although Ms. Spears did not recall the specific September 26, 2006 council meeting to consider

“the annexation of the Fox Moraine property, the execution of a host agreement, the execution of

an annexation agreement, and the adoption of an amended pollution control facility siting

ordinance,” she did state that she voted against the annexation resolution. 4/21Tr. at 43-44.

However, she denied knowing that “the annexation was to start the process that would end in the

landfill if everything went right for Fox Moraine[.]” 4/21Tr. at 142. After checking her voting

records, Ms. Spears disagreed with her deposition statements that she was opposed to new

development involving “Route 47 until the road was widened and improved.” 4/21Tr. at 78.

Concerning public comments regarding the landfill proposal, Ms. Spears could not recall

whether she had received one or a thousand emails on the landfill proposal, but that it was “quite

a span.” 4/21Tr. at 79. She also received four letters about the proposal that were addressed to

the mayor and all council members. 4/21Tr. at 79-80. Ms. Spears stated she received some

letters personally, but again could not recall how many. 4/21Tr. at 80. Similarly, she did not

remember how many personal communications from community members she had received.

---

9

However, she testified that when a person approached her to discuss the proposal, she would tell

them that she was not allowed to discuss the topic with them because she was acting as a judge.

4/21Tr. at 132.

During the local siting hearings, Ms. Spears had more concerns with the “demeanor and

conduct” of the attorneys involved in the siting than the landfill opponents. 4/21Tr. at 81. She

testified that she heard Jim Bock telling another member, (who she believed may have been Paul

James), about receiving a phone call at 2:00 or 4:00 in the morning threatening him. 4/21Tr. at

82-83. Mr. Hamman also approached Ms. Spears during the hearings and, off the record, asked

her if he could take her to a landfill he was involved with in Will County. 4/21Tr. at 125-26. He

indicated that the homes “were[valued at ]half a million dollars up to $1 million homes

surrounding the area, and [Ms. Spears] told him [she] could not do that, it would be illegal, and

he kind of shrugged his shoulders and laughed and said, ‘I promise we won’t be talking about the

landfill.”’ 4/21Tr. at 126.

In the last week of August, Ms. Spears received a memorandum from John Wyeth, a

Yorkville city attorney. Mr. Wyeth’s memorandum asked to meet with the council by ward to

discuss a development; the memo also “did mention a landfill.” 4/21Tr. at 127-28. Also at the

meeting were Charlie Murphy, a developer, and Jim Burns, both of whom represented Fox

Moraine, and Mr. Joseph Besco. 4/21Tr. at128. During the meeting, “Mr. Murphy presented a

very pretty sketch of a landscaped area with a road in front of it. There was nothing in there

about a landfill or a hole or whatever, and he was presenting us that and just saying what a

wonderful thing that this could be for Yorkville.” 4/21Tr. at 129. Each of the next three days

after the meeting, Mr. Murphy left a phone message for Ms. Spears on her answering machine

telling her to call him if she had any questions. 4/21Tr. at 129-30. Ms. Spears stated that she did

not approve of this meeting and did not think the meeting was ethically “above board” since she

had not ever and has never since met with a developer on any issue regarding the city; “so [the

meeting] was a red flag to me.” 4/21Tr. at 143.

While at the council meeting on October 24, 2006, Ms. Spears stated that she had

concerns about the host agreement because Yorkville had approved Fox Moraine’s host

agreement near the same time as the Kendall County had approved the host agreement with

Waste Management and Kendall Land and Cattle Company. 4/21Tr. at 84-86. She was aware

that there were two possible lawsuits; the first was “because [council] did not follow the state

statute procedures and [the second was for] vacating Sleep Hollow Road.” 4/21Tr. at 90. Given

these options, she stated, “if we have a choice of two lawsuits, why don’t we take what the best

alternative is? Vote no. Protect our city.” 4/21Tr. at 91. Ms. Spears also stated at a meeting on

January 23, 2007, that Fox Moraine “performed a breach of contract with this annexation

agreement.” 4/21Tr. at 93.

Later, on April 3, 2007, Ms. Spears refused to sign a resolution “stating essentially that

the city council members would vote fairly[.]” 4/21Tr. at 93-94. She refused because “some

[Council] members were grandstanding, and [she] didn’t want to be a part of that. [She] took this

very seriously. It wasn’t a joke to [her].” 4/21Tr. at 94. Ms. Spears denied saying to the

Beacon

News

, as was printed on April 15, 2007, that, “[i]f [the landfill] 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,

---

10

that would be a perfect scenario.” 4/21Tr. at 100. Despite her assertion that she had been

misquoted, she admitted not having called the author of the article, Heather Gillers, to complain,

stating that “nothing is ever done” to correct such misquotes. 4/21Tr. at 101.

In the May 23, 2007 meeting, Ms. Spears noted that she was shocked at the motion to

disqualify her, but that she did vote to deny her disqualification after being assured by Mr.

Michael Roth, the city attorney, that she was allowed to vote on the matter. 4/21Tr. at 104. In

her testimony, Ms. Spears clarified a statement she made during that meeting; one of the reasons

she believed that Fox Moraine had moved to disqualify her is because they knew of her track

record for researching. 4/21Tr. at 105. She noted that in using the term “researching, she was

referring to taking good notes and researching them.”

Id

. During the same meeting, when Ms.

Burd thanked her for researching her presentation, Ms. Spears did not correct her because she

“didn’t think it would come to that.” 4/21Tr. at 124. Ms. Spears also asserted that her statement

at the meeting that Fox Moraine “failed to meet criterion 1 due to EPA records, indicated there is

adequate land availability for at least nine to fifteen years” was based on a PowerPoint

presentation given to the council. 4/21Tr. at 121-22. Contrary to the transcript of the May 24,

2007, meeting, Ms. Spears did not recall stating that the opponents of the landfill were getting

“pretty dirty,” meaning that they were “unruly and disruptive.” 4/21Tr. at 106.

Ms. Spears admitted that she proposed additional conditions for the landfill, including (1)

limiting the service area to Kendall County, (2) requiring two layers of HDPE in the liner of the

landfill, and (3) requiring proper tanks made of welded steel built to the AWWAD-100 or API

650 standard. 4/21Tr. at 107-108. She asserted that the second condition was based on evidence

presented in a PowerPoint presentation about such double composite liner systems. 4/21Tr. at

108.

Ms. Spears recalled seeing the resolution denying the siting application from Fox

Moraine. 4/21Tr. at 110. However, she could not remember whether the reports referred to in

the resolution recommended approval of the application with conditions. 4/21Tr. at 113. She

admitted that the third condition she proposed on May 24, 2007, concerning the applicable

standards for the aboveground storage tanks, was the same condition put into the resolution.

4/21Tr. at 114. She was unsure whether she had discussed the condition with the city’s attorneys

before that meeting or whether the resolution was changed to include those proposals, but she did

indicate that all of the meetings with city attorneys were open and so there should be minutes of

each meeting. 4/21Tr. at 115-116.

Valerie Burd.

Ms. Burd ran for mayor of Yorkville and was elected in April 2007.

4/21Tr. at 172. She was sworn into office on May 8, 2007, and had served as an aldermen for

nine years.

Id

. Ms. Burd’s election campaign committee included Mr. Milliron, Mr. Parrish,

Wally Werderich, and Dan Nicholson. 4/21Tr. at 181, 317-18; 4/22Tr. at 17. In addition, Mr.

Plocher and Ed Sleezer were a part of the campaign committee. 4/22Tr. at 18. Ms. Burd

testified that she did not know that Mr. Milliron and Mr. Parrish opposed the landfill and could

not recall hearing them speak out against the landfill. 4/21Tr. at 182-185. Ms. Burd did not

know that Mr. Parrish was a member of FOGY.

Id

. Ms. Burd did not know that Wally

Werderich was a founding member of FOGY, but was aware that he was a member. 4/21Tr. at

185.

---

11

Ms. Burd testified that she believed Derek Price, the attorney hired to represent Yorkville

during the siting process, was biased in favor of Fox Moraine. 4/21Tr. at 192. Ms. Burd

inquired of Mr. Price at a November 30, 2006 meeting if Yorkville could help pay for an

attorney to represent the citizen’s group. FMExh. 8 at 27. Ms. Burd testified that she had never

made any comment in public against the siting application during her campaign and she did not

run as an anti-landfill candidate. 4/21Tr. at 173-174.

Wally Werderich.

Mr. Werderich was elected to the city council on April 17, 2007.

4/21Tr. at 300. Mr. Werderich was a founding member of FOGY, which was organized at the

end of 2006 or beginning of 2007. 4/21Tr. at 300-01. The other co-founders include George

Gilson, Ron Parrish, and Tom Gilmore.

Id

. Mr. Werderich performed legal services for the

group and resigned at the end of 2006. 4/21Tr. at 302. Mr. Milliron is a friend and contributed

in-kind contributions to Mr. Werderich’s campaign. 4/21Tr. at 311. Mr. Werderich in

newspaper articles prior to his election expressed his concerns about the handling of the siting

and used email lists and internet messaging boards to garner support for a question and answer

session with Yorkville. 4/21Tr. at 313. Mr. Werderich decided to run for aldermen because of

the handling of the landfill siting. 4/21Tr. at 316.

In statements made at a November 30, 2006 meeting, Mr. Werderich noted that the siting

hearing process was not adversarial and presents only one side of the story. FMExh. 8 at 169-

170.

Arden Plocher.

Mr. Plocher was elected to the city council on April 17, 2007. 4/22Tr.

at 12. Mr. Plocher received campaign contributions from Mr. Milliron and Mr. Parish. 4/22Tr.

at 18.

Robyn Sutcliff.

Ms. Sutcliff was elected to the city council on April 17, 2007. 4/21Tr.

at 258. Prior to her election, Ms. Sutcliff attended city council meetings and published a web

page known as the “Third Ward Advisor” that summarized and commented on the meetings.

4/21Tr. at 259. On her website, Ms. Sutcliff indicated that if elected she would vote against the

landfill. FM Exh. 21. Ms. Sutcliff’s comments included phrases such as the audience “proudly

displayed no landfill signs” and “50 concerned citizens gathered . . . armed with signs and

concern for the future of their community.” 4/21Tr. at 262-263. Ms. Sutcliff could not recall

ever commenting, posting or writing a positive comment about the landfill. 4/21Tr. at 271. Ms.

Spears informed Ms. Sutcliff that while campaigning Ms. Sutcliff should not discuss the landfill

and Ms. Sutcliff stopped. 4/21Tr. at 278.

Ron Parrish.

Mr. Parrish, a private citizen, testified that he was one of the original

members of FOGY and donated a raffle prize to FOGY. 4/21Tr. at 154-155. Mr. Parrish

donated money to Mr. Werderich’s campaign and had heard Mr. Werderich speak out against

annexation. 4/21Tr. at 156-157. Mr. Parrish also donated to Mr. Plocher and Ms. Burd and

placed a sign for Ms. Burd. 4/21Tr. at 157-158. Mr. Parrish testified that Mr. Devin Moose

threatened him at informational meetings, prior to the beginning of the siting hearing. 4/21Tr. at

162-166.

---

12

Devin Moose.

Mr. Moose, Fox Moraine’s engineer, denied that he had ever threatened

Mr. Parrish. 4/22Tr. at 127.

Donald J. Hamman.

Mr. Hamman is the ultimate person in charge of Fox Moraine,

LLC, and has a fifty-one percent interest in the company. 4/23Tr. at 5, 8. He relies on the

advice of his staff to make major decisions.

Id

. at 7. Mr. Hamman was aware that there was an

aldermanic election in Yorkville that would take place around the same time as the landfill siting

hearings (4/23Tr. at 14), and admitted that he could have filled the application either before or

after December 1, 2006, which was the date he filled the application. 4/23Tr. at 12-14. He also

was aware of the possibility that Yorkville citizens would protest the landfill. 4/23Tr. at 14-15.

On Sunday, April 15, 2007, Mr. Hamman read the Kendall County edition of the Aurora

Beacon News

and noted a particular article where many candidates in the aldermanic election

were quoted concerning their positions on the landfill. 4/23Tr. at 15. Specifically, Mr. Hamman

thought that the article showed that Joe Plocher, Robyn Sutcliffe, Wally Werderich, Jason Leslie,

and Marty Munns were biased against the landfill before having voted on it. 4/23Tr. at 16-18.

Yorkville Public Hearing on Siting

The public hearings on the siting application commenced on March 7, 2007, and

continued until April 20, 2007. C08089, 15628. No hearings were held between April 5, 2007

and April 19, 2007. C15001, 15526. Fox Moraine completed presentation of the application and

witnesses in support on March 24, 2007. C12901. There were a total of 24 sessions of hearings.

Joseph Besco, Jr., an alderman for eight years, testified that he received threatening

phone calls during the public hearing process. 4/22Tr. at 153, 159. Mr. Besco reported the calls

to the police. 4/22Tr. at 159-160. Mr. Besco indicated that Mr. Munns received the same phone

call. 4/22Tr. at 161. Mr. Besco also recalls that Ms. Burke changed her position on the landfill

after seeing the opposition, and that Ms. Burd recommended the attorney who represented

Yorkville in the siting process. 4/22Tr. at 159.

Mr. Besco remembered Mr. Milliron and Mr. Parrish frequently attending council

meetings and speaking regularly and forcefully against the landfill; he understood that both were

landfill opponents. 4/22Tr. at 162. Mr. Milliron was “forceful, aggressive, and very vocal” and

engaged in name calling. 4/22Tr. at 162-163. Mr. Milliron was removed from a meeting for his

behavior.

Id

. This conduct was curtailed by Yorkville’s hearing officer during the public

hearings. 4/22Tr. at 164.

Mr. Murphy testified that the siting hearings were attend by 50 to 250 people, including

individuals who travel from jurisdiction to jurisdiction to oppose landfills. 4/22Tr. at 199. Mr.

Moose, Fox Moraine’s engineer, testified that the hearings were prolonged by opponents.

4/22Tr. at 105-110.

---

13

Press Statements

A newspaper article appeared in the

Beacon News

which included quotes from the

officials seeking election. Ms. Spears denied making the statements in the newspaper. 4/21Tr.

at 100-101. Ms. Burd admitted to making a statement concerning landfills in Illinois. 4/21Tr. at

200. Ms. Sutcliff could not recall making the statement. 4/21Tr. at 294. Mr. Werderich felt his

quote was taken out of context. 4/21Tr. at 319. Mr. Plocher also felt he had been misquoted.

4/22Tr. at 24.

Involvement of City Attorney

The law firm of Wildman, Harrold, Allen & Dixon LLP (Wildman) submitted an invoice

to Yorkville titled “Local Siting Engagement Interim Statement for Professional Services

Rendered through May 31, 2007”. FM Exh. 16. The first entry is dated April 21, 1007, and the

description of “begin review of siting petition and exhibits to same”.

Id

. There are eight

additional entries prior to May 8, 2007, including an entry for five hours on April 30, 2007,

which is described as preparation for and conducting a meeting with the mayor.

Id

.

On May 8, 2007, the new city council for Yorkville was sworn in which included the new

mayor Ms. Burd, new aldermen Mr. Werderich, Mr. Plocher, Ms. Sutcliff and Ms. Spears. FM

Exh. 17 at 1. Ms. Burd indicated that she would like to appoint Mike Roth from the Wildman

law firm to the interim city attorney and this would be for the short-term. FM Exh. 17 at 2. In

response to questions, Mr. Roth indicated that the proposal was for a fixed number of hours of 50

hours a month for a fixed fee.

Id

. Ms. Burd testified that the Wildman firm “handled the landfill

appeal process and all of that” separate from the fixed fee that Mr. Roth performed under.

4/21Tr. at 216-221.

Ms. Burd spoke with representatives of the Wildman law firm prior to being sworn in as

mayor, but testified that she did not retain the attorneys prior to May 8, 2007, when she was

sworn in as mayor. 4/21Tr. at 200. Ms. Burd stated that she did what all mayors do during

transition time, speak with different legal firms before appointing a city attorney. 4/21Tr. at 200-

201. Ms. Burd testified that she did not hire the firm to do any work until after May 8, 2007, but

when speaking with law firms, she discussed the scope of work to include annexation issues and

development issues noting that Yorkville was in the middle of a landfill siting proceeding.

4/21Tr. at 204. Ms. Burd noted that Mr. Price represented the staff; the corporate authorities

were represented by Mr. John Wyeth, and Mr. Wyeth’s term ended when the new mayor was

sworn. 4/21Tr. at 205. Ms. Burd stated that she had not directed the Wildman law firm to

segregate landfill-related charges during the period, but testified that prior to May 9, 2007, the

firm performed no work on legal matters for the city other than the landfill work. 4/21Tr. at 205-

208. Ms. Burd reiterated that the Wildman firm was not solicited or authorized by her to

perform any work prior to May 9, 2007. 4/21Tr. at 209.

---

14

Yorkville Deliberations

On May 23, 2007, Yorkville began deliberations on the landfill siting application.

C18534-591. Those deliberations continued on May 24, 2007, when the council voted seven to

one to deny siting. C18592-185639. Neither Mr. Clark nor Mr. Price was present for the

deliberations. C18537-18538; 4/21Tr. at 228. On May 23, 2007, the council members received

the reports filed by Mr. Clark, Mr. Price, the Wildman law firm, and final materials from Fox

Moraine. C18538-18541. Yorkville did consider postponing discussion on the application to

allow for additional time to review the materials received on May 23, 2007, but that motion did

not pass. C18541.

On May 23, 2007, Yorkville also voted to deny two motions. The first was a motion filed

by Kendall County to dismiss for lack of jurisdiction. C18538-18539. The second was a motion

to disqualify Ms. Burd and Ms. Spears. C18539.

During deliberations on May 23, 2007, each of the aldermen was allowed 20 minutes to

state their positions regarding the landfill siting. C18542. Ms. Sutcliff began and indicated her

belief that the landfill was incompatible with the surrounding area as the landfill will “present an

insurmountable obstacle to development” in the surrounding area. C18543. Ms. Sutcliff was

also concerned that downtown Yorkville was not considered in the study of traffic.

Id

.

Ms. Spears spoke next and indicated that the she felt that the applicant did not meet the

first criterion because “EPA records” indicate adequate landfill capacity for at least nine to 15

years. C18544. Ms. Spears continued to delineate her reasons for believing the criteria had not

been met, including recommending the detailed technical standards for leachate tanks (

id

.),

concerns about vinyl chloride levels (C18547), and concerns that the landfill did not contain a

double composite liner system with leak detection (C18546).

See also

C18544-18549.

Mr. Plocher indicated he had concerns about traffic and he states that “the applicant said

that the landfill leaked” and that presented cross contamination issues to him. C18549. Mr.

Plocher also stated that he would never jeopardize his friends and family and referred to his

brother with cerebral palsy. C18549-18550.

Mr. Leslie followed Mr. Plocher and indicated three criteria he believed had not been

met. C18550. Mr. Leslie expressed concerns on the impact of the landfill on property values,

traffic patterns, and the Kendall County Solid Waste Management Plan.

Id

.

Mr. Munns noted the conflicting opinions of the attorneys and indicted he would read the

material before making his decision. C18550-18551. Mr. Munns did not publicly state whether

or not the siting criteria would be met, but voted to deny siting.

Id

, C18631.

Mr. Werderich indicated that the applicant failed to establish need for the facility given

the disposal capacity still available for the area’s waste. C18551-18552. Mr. Werderich also

expressed concerns about placement of groundwater monitoring wells and the compatibility with

the surrounding area. C18552-18553. Mr. Werderich referred to specific parts of the testimony

---

15

when discussing his concerns. C18553-18554. Mr. Werderich also had concerns regarding

traffic flow and the Kendall County Solid Waste Management Plan. C18555-18556. Mr.

Werderich urged the council to consider the application on its face not based upon any

conditions that may be added. C18557-18578.

Mr. Besco thanked Mr. Werderich for going through the report prepared by Mr. Roth’s

firm and had questions regarding Mr. Clark’s recommendations. C18558. Ms. Burd then

commented that the council was deliberating and several aldermen had not made decisions while

other aldermen “appear to have already made a determination based on their own research and

information they have gotten.” C18560.

On May 24, 2007, deliberations were continued and alderman Gary Golinski began by

stating he had reviewed all the submitted evidence and his decisions were based solely on that

evidence. C18597-18598. Mr. Golinski stated that he had never shown predetermined bias for

or against the applicant. C18598. Mr. Golinski stated that he does not believe the evidence

supports a need for the facility. C18599. Mr. Golinski was also concerned about groundwater

monitoring wells and prior operator history. C18601-18602. Mr. Golinski found the evidence

on compatibility to be lacking credibility and had concerns about the traffic . C18602-18606.

On May 24, 2007, Yorkville was presented with two different resolutions to consider:

one resolution would deny landfill siting and the second resolution would approve landfill siting

with conditions. C18612. In the denial resolution, conditions were included if the decision of

Yorkville were to be overturned by the Pollution Control Board. C18613. Several additional

conditions were suggested, including some conditions which might not be permissible by law.

C18613-18624. The resolution which passed allowed Yorkville’s attorneys to add only those

conditions which were legally acceptable. C18628-18630. The written resolutions required

revision based on the comments made by the council members on May 24, 2007, and Mr. Roth

indicated the revisions would be made and the resolution returned for the mayor’s signature the

next day. C18623. Resolution 2007-36 dated May 24, 2007, formally denied landfill siting to

Fox Moraine. C18640-18643.

Facts on the Criteria

The Board summarizes the facts on each of the contested criteria beginning with criterion

i, and proceeding in order ending with a summary of the facts on the operator’s experience.

Facts on Criterion i (Need)

Phillip Kowalski.

Mr. Kowalski testified for Fox Moraine in support of criterion i, that

the facility is necessary to accommodate the waste needs of the area the facility is intended to

serve. C09380; C09444-9459. Mr. Kowalski has a bachelor’s degree in physics and an MBA in

finance from the University of Chicago and has been employed as a solid waste consultant for

approximately 19 years. C09382. Mr. Kowalski’s specific area of focus is needs assessment

studies.

Id

. Mr. Kowalski studied demographic projections, various county solid waste

management plans and need assessment studies, the current solid waste disposal capacity data

and the amount of waste presently deposited in landfills based on data from the Illinois

---

16

Environmental Protection Agency (IEPA) and state agencies in Indiana, Michigan and

Wisconsin. C09383-84. Mr. Kowalski indicated that this type of information represents much

more current up-to-date information on how much waste is being disposed of and how much

capacity is available. C09384-9385.

The proposed service area includes the counties of DeKalb, Kane, Cook, DuPage, Will,

Grundy, LaSalle and Kendall. The proposed landfill is centrally located within the service area.

C09449, 09385. The facility will have a disposal capacity of approximately 23.5 million tons

and an average daily throughput of 3,500 tons per day, with a projected life of 24 years. C09386.

Mr. Kowalski considered a period of time from 2006 through 2031 in assessing the need for the

facility.

Id

.

Mr. Kowalski found that in the past ten years the amount of waste in the landfill service

area has been growing by about two percent annually with one percent attributable to population

growth and one percent attributable to growth in per capita waste generation. C09387-8. Mr.

Kowalski projects that during the period of 2006 through 2031, the service area will dispose of

325 million tons of waste rising from about 11.5 tons in 2006 to about 13.6 tons in 2031.

C09388. Mr. Kowalski explained that the proposed facility will meet the needs of the service

area for about two years.

Id

.

Mr. Kowalski pointed out that at one point there were as many as 28 landfills operating

meeting the needs of the service area; but as of January 2006, only ten facilities remained.

C09388-9389. Mr. Kowalski stated that Kendall County has relied on three landfills historically;

only one is still operating, and that landfill has limited capacity. C09389. Mr. Kowalski testified

that two other facilities are open in the service area however those facilities have restricted areas

for accepting waste.

Id

. Mr. Kowalski testified that given the limited capacity the service area

will experience a shortfall of disposal capacity of approximately 296 million tons during the

period of 2006 to 2031. C09391-9392.

Mr. Kowalski testified that development of a landfill takes approximately nine years from

concept to actual operation in Illinois. C09397. Mr. Kowalski testified that there are a number

of economic considerations for the Fox Moraine landfill including the central location of the site.

Id

. Mr. Kowalski noted that when the nearby landfills that Kendall County has relied on

historically for disposal are closed the waste will need to be transported 40 to 60 miles away.

C09398. With many companies adding waste-fuel surcharges to bills costs to customers are

increased. C09399. Mr. Kowalski stated that comparing the transportation distances of the

proposed landfill versus the average transportation distance to the other regional landfills, the

siting of Fox Moraine could save 800,000 gallons in fuel per year and approximately $6.5

million in transportation costs.

Id

. Mr. Kowalski opined that based on his studies, the facility

was necessary to meet the waste needs of the service area. C09401-9402.

Darryl Hyink.

Mr. Hyink is a retired school teacher who also worked in administration

at the school. C14322. Mr. Hyink has experience evaluating new construction, writing

proposals for new construction and working in the private sector.

Id

. Mr. Hyink looked at the

application because he lives in close proximity to the proposed site. C14322-14323. Mr. Hyink

performed research concerning two criteria, including criterion i, looking at several documents

---

17

including newspaper articles and

Non-Hazardous Solid Waste Management and Landfill

Capacity Reports

for Illinois in the years 1997 through 2005. C14324-14325. Mr. Hyink opined

that there was a “glut” of landfill space in the nation, with enough space to handle the nation’s

needs for 26 years. C14325-14326. Mr. Hyink expressed the opinion that Kendall County does

not have the responsibility to handle the waste from Chicago, in an area that is planned for

residential use. C14326-14331.

Mr. Hyink examined the Non-Hazardous Solid Waste Management and Landfill Capacity

Reports in Illinois 1997 and offered the opinion that waste capacity in the State had actually

increased by 13.36% from 1997 to 2005. C14333. Mr. Hyink suggests using the Spoon River

Landfill 187 miles away and perhaps transporting by rail. C14338-14341.

Mr. Price’s Report.

Mr. Price found that the record supported a finding that the facility

was necessary to meet the needs of the service area. C18741. Mr. Price noted that the record

was “replete with information about alternative technologies” however Mr. Price found those

technologies are not yet viable.

Id

. Mr. Price also noted that the record contained information

about downstate disposal facilities that are already permitted, but the rebuttal evidence

concerning costs and burdens of transporting waste, “we conclude,” established need for the

facility.

Id

. Mr. Price recommended two conditions: one relating to price and one allowing

acceptance of waste from transfer stations which are located only in the service area.

Id

.

Mr. Clark’s Report.

Mr. Clark finds that there are currently no proven technologies for

treating waste beyond landfilling and the needs analysis appropriately did not consider these

alternative methods. C18753. Mr. Clark finds the issue of whether other landfills such as Spoon

River could provide sufficient disposal capacity to be speculative.

Id

. Mr. Clark opines that the

necessary updates for hauling waste by rail has not come to fruition and even if Spoon River

were available to the service area, the capacity would add only an additional two years.

Id

.

Facts on Criterion ii (Designed to protect public health, safety and welfare)

Daniel Drommerhausen.

Mr. Drommerhausen testified on behalf of Fox Moraine

concerning criterion ii, the facility is so designed, located and proposed to be operated that the

public health, safety and welfare will be protected. C09873; C09977-10016. Mr.

Drommerhausen testified more specifically concerning the hydrology of the site.

Id

. Mr.

Drommerhausen is a senior hydrogeologist with Shaw Environmental and a professional

geologist in Illinois, Indiana, and Georgia. C09873. Mr. Drommerhausen has a bachelor’s

degree in geology from Augustana College and a master’s degree in hydrogeology from the

University of Georgia with a focus on groundwater.

Id

. Mr. Drommerhausen has 11 years of

experience in the solid waste industry and has worked on over 20 landfill projects where he

interpreted the geology and hydrogeology of the site. C09874. He has 14 years of experience in

groundwater modeling, mostly dealing with landfills and developing dimensional groundwater

modeling.

Id

.

Mr. Drommerhausen’s job entails determining the geology and hydrogeology of the site

and working with the engineers on the type of design that is appropriate for the location.

C09874. Mr. Drommerhausen opined that “this site is about as good as it gets. This is the best

---

18

site I’ve worked on hydrogeologically when developing a landfill.”

Id

. Mr. Drommerhausen

determined the relevant objectives and conducted investigations to characterize the geology and

hydrogeology of the site to aid in design and identify potential migration pathways. C09874-

9875. Mr. Drommerhausen identified potential migration pathways to design the groundwater

monitoring network and performed a groundwater impact evaluation. C09875-9876. Mr.

Drommerhausen examined all well logs within one mile of the proposed site.

Id

.

Mr. Drommerhausen’s investigations found that the proposed site has a great deal of

clay-type and fine-type material below the site and then further below some sand and gravel and

bedrock. C09877. Mr. Drommerhausen testified that between the aquifer below the proposed

site and the aquifer that provides Yorkville’s water supply is 300 to 500 feet of confining

retarding material. C09878. Also, of the 74 existing wells within one mile of the site, 12 wells

are downgradient.

Id

. Mr. Drommerhausen testified that the design of the landfill has about 80

feet of clay beneath the liner. The resulting projected vertical movement rate of two inches per

year results in taking over 480 years for groundwater to move from the base of the proposed

landfill to the bottom of the clay unit. C09879, 9888.

Mr. Drommerhausen’s drilling program consisted of 48 boring locations, with 46

continuous boring locations and two continuous sampled angle borings being advanced to detect

fractures. C09879-9880. The borings were evenly spaced from north to south and east to west.

Id

. Mr. Drommerhausen used the information gathered from these boring to put together a

hydrogeologic report. C09879. The boring locations were in all areas of geological interest and

were used to collect groundwater elevation data and hydraulic conductivity. C09882-9885.

Mr. Drommerhausen’s study determined that the site contains Peoria silt (a windblown

sediment) beneath which is a Lemont formation (glacial till), then discontinuous silt, sand, and

gravel deposits, then some areas of the Tiskilwa formation (glacial till) and then Roxana silt

which is an ancient soil. C09885-9886. Following the Roxana silt is older drift made up of clay,

silt, sand, and gravel and then bedrock. C09886. Mr. Drommerhausen noted the presence of the

Sandwich fault approximately a half mile to the north, northeast of the site. C09888-9889. Mr.

Drommerhausen noted that there has been no displacement on the Sandwich fault in over 286

million years. C09890. Mr. Drommerhausen provided the Illinois State Geological Survey his

report and the Illinois State Geological Survey indicated agreement with the characterizations of

the site geography. C09891.

Mr. Drommerhausen next evaluated the impact on groundwater using a groundwater

model approved by the IEPA. C09893. Even assuming no liner on the proposed landfill, the site

passed the modeling.

Id

. Mr. Drommerhausen sent the hydrogeologic and geologic information

to Dr. Kerry Rowe, an expert on liner design. C09895. Dr. Rowe opined that the site seem well

suited for landfill development.

Id

. Mr. Drommerhausen determined that the site is located

hydrogeologically so as to protect the public health, safety and welfare. C09896.

Devin Moose.

Mr. Moose testified on behalf of Fox Moraine concerning criterion ii.

C10633; 10871-10941. Mr. Moose is a civil engineer and has worked on hundreds of solid

waste management projects. C10633. Mr. Moose is a director for Shaw Environmental and is a

registered professional engineer in nine states. C10871. Mr. Moose managed the compilation of

---

19

the application in this case and prepared information for criteria ii, iv, v, vii, and ix. C10633-

106. Mr. Moose participated in the selection of this site and the site was chosen because of the

favorable geology. C10653-10654. Mr. Moose noted the site is not in a seismic impact area and

the nearest active fault is 200 miles away. C10653-10654; 10656.

Mr. Moose indicated that an archeological evaluation was performed on the site and

found there are no significant historical, archeological, or architectural resources with the

projected site. C10656. The Illinois State Historic Museum has “signed off” on the site and the

facility will not impact nor make any threat to endangered species.

Id

. The facility is not

governed under any statewide water quality management plan and meets all required setbacks f

water wells. C10656-10657. The nearest downgradient water well is about 1680 feet away and

there is a water well protection plan for people within two miles of the site. C10657. The

proposed landfill also meets all required setbacks from roads and highways and the required

setbacks from schools, dwellings, retirement homes, and hospitals. C10657. The nearest

residential dwelling is about 1,500 feet from the site.

Id

. Mr. Moose note that the application

provides a Property Value Protection Plan for all residences located within one mile of the

proposed facility.

Id

.

Mr. Moose next discussed the design of the facility, noting that there is an average of 78

feet of

in situ

clay beneath the proposed landfill site. C10663. Mr. Moose opined that because

the clay has an extremely low permeability, a liner system isn’t even technically necessary

because the natural clay protects the aquifer.

Id

. However, Mr. Moose testified that the

application does require excavation of three feet of the

in situ

clay and recompacting the clay in

place to ensure no cracks or fissures are present. C10663. The application calls for the clay to

be compacted to produce a permeability value of one times ten to the minus seven centimeters

per second or less. C10664. On top of the clay, the design calls for a “60-mil, high density

polyethelene liner”. C10664-10665.

A leachate collection system of 12 inches of granular material will lie directly above the

liner system. C10664. Mr. Moose stated that the design calls for the use of four individual liner

systems in the critical areas around the leachate collection sumps and perimeter of the landfill

facility. C10668-10670. In response to previous questions, Mr. Moose indicated that the

minimum thickness of clay beneath the critical areas is 67 feet and the maximum thickness is 95

feet; there would be an average of 75 feet of clay beneath the critical areas. C10670.

Mr. Moose’s design would place the liner system beneath the critical areas, the sumps,

and where the leachate pipes run (V notches), to consist of two layers of polyethelene, with a

geo-synthetic clay liner (GCL) material sandwiched between the two layers, and a minimum of

three feet of recompacted low permeability clay underneath. C10671. The GCL material will

consist of bentonite, which, when hydrated, is equivalent to three feet of compacted clay.

Id

. 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. C10672-10674. The application requires one hundred

percent of every inch of every seam of the high density polyethylene liner to be tested. C10680.

Although the life of the liner is expected to be a thousand or more years, the application

nevertheless is designed to assume a seepage rate through the liner system as an ultra

conservative measure. C10782-10783.

---

20

Mr. Moose explained that the application requires the use of fusion welding to fuse all

portions of both the polyethelene cover and liner. C11497-11498. Fusion welding results in

intermolecular linkage within the polyethelene material, and each of the welded areas is stronger

than the material itself. C11499.

Because of the design grades in the liner system, leachate will only accumulate on one

percent of the surface of the liner system. C10887. From the accumulation points in the landfill,

leachate will be removed by the use of a system of leachate collection pipes to quickly convey

leachate down to the sumps. C10669; C10672. Mr. Moose explained that the pipes would be

surrounded by a washed gravel envelope, with the envelope to be surrounded or encased in a

layer of filter fabric which would provide additional protection in the event that there was ever a

failure associated with the pipe. C10672-10673. Leachate would then be removed via a leachate

collection riser system using an air-driven pump. C10683-10684. The pumps called for in this

system are specifically designed for this type of environment, and are level-actuated, so that

when one foot of leachate accumulates, the pumps will begin pumping the leachate. C10684;

C11496. The design requires leachate holding tanks equipped with an alarm system that will

sound when a tank is 80% full and the system incorporates both visual and audio alarms.

C11538. If a tank reaches 85% of capacity, the pump will shut off and the alarm system will

stay on so that the tank cannot overfill. C11538-11539.

The design for the final cover plans to protect against water entering the landfill and

increasing the potential for leachate by use of a geocomposite net, above which there would be

three feet of protective soil, and a vegetative layer. C10686-10687. The final cover will have an

average slope of 4 to 1, with a minimum of five percent to work in combination with the

synthetic cover and the drainage net, to cause 99% of all precipitation that falls on the facility to

run off. C10687. The landfill mimics the area's topography so as to make the landfill as

aesthetically pleasing as possible. C10814-10815.

To address gas removal the landfill is designed to use suction which creates negative

pressure within the landfill. C10691. The design for the gas collection system calls for 208

wells, connected by piping to a central point, where the gas will be treated. C10691. Mr. Moose

explained that in the early stages of the landfill development there might not be sufficient

quantity or quality of gas to warrant a gas-to-energy system; therefore, in the early stages, gas

will be burned using flares. C10691-10692. Incineration of gas would take place in an enclosed

flare, thereby eliminating the potential for odor problems. C10692. Once the landfill generates a

sufficient amount of gas, a waste-to-energy or gas-to-energy facility will be constructed for

generating electricity. C10692-10693. Mr. Moose testified that the application calls for

continuous monitoring around the facility for gas and leachate. C10694. In addition, there is a

system to monitor landfill gas within the waste footprint and around the perimeter to ensure that

no gas is migrating through the vadose zone. C10695. Mr. Moose testified that the application

requires monitoring the ambient air near the ground surface, since landfill gas is heavier than air.

Id

. Air in onsite buildings will also be continuously monitored to ensure no methane has

migrated into any of the buildings.

Id

. The area around the perimeter of the facility will be

monitored using 25 gas monitoring probes, thereby ensuring no gas is migrating into the

surrounding ground. C10698.

---

21

Mr. Moose described the facility's groundwater monitoring system noting 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; C11271. The uppermost aquifer will be

monitored completely around the landfill. C10699. There will also be monitoring of the

saturated zones of the Henry formation.

Id

.

Because groundwater 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. C10700. Mr. Moose explained that ultimately the IEPA will determine the final

spacing of groundwater monitoring wells, but the groundwater monitoring system as designed

will be over 99.5% efficient. C1070l; C11531. Groundwater sampling and testing will be done

by an outside independent consultant. C11493.

Mr. Moose explained that the application includes 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. C10704. Every aspect of construction will be inspected

by an independent third-party and certified by a professional engineer registered in the State.

Id

.

Construction oversight includes oversight of the recompacted low permeability clay liner system,

and the testing of every inch of the seams of the high density polyethelene, as well as the high-

density polyethelene material. C10704-10705. The quality assurance program requires that

every man-made component of the system will be tested. C10705. Mr. Moose also testified that

the project is so designed as to avoid any flooding downstream as a result of construction

activities. C10707.

The design includes a stormwater system designed for a 100-year, 24-hour storm, with

naturalized detention basins with emergent wetland shelves. C10708-10709. 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. C10710. The design includes wet-bottom basins designed so that water is in them at

all times, thereby causing water entering the basin to be slowed down. C10709-10710. Mr.

Moose also explained that the longer water stays in such basins, the more sediment settles out.

Id

.

The application provides for the use of bio swales, and various wetland and prairie

vegetation to minimize erosion, and for the rerouting of an existing farm ditch which transects a

small portion of the site. C10710; C10712. The landfill design also incorporates waterfalls to

provide aeration and improve the water quality prior to discharge. C10713.

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. C10717. Employees

will be trained to identify acceptable and unacceptable materials, with unacceptable materials to

be segregated and either recycled or disposed of properly. C10720. The gatehouse will have a

radiation detection device, and vehicles will be videotaped as they enter. C10721. In addition, at

the active face of the landfill, operators, spotters, landfill compactors, and all other employees

will be trained to look for unacceptable waste. C10722. The application requires random

---

22

inspections, both at the landfill and at transfer stations that will use the facility, to determine

whether unacceptable waste is present. C10722. Haulers who bring unacceptable materials to

the landfill will be penalized, and chronic offenders will be barred from using the facility.

C11515-11516.

Mr. Moose explained the application includes measures designed to control dust and

mud, including requirements that onsite areas used by trucks will be paved, and that there be an

adequate distance between the entrance and the scale house to queue incoming vehicles.

C10726. During periods of wet weather, landfilling would take place only in areas kept under

intermediate cover. C10726-10727. This minimizes the distance a truck must travel from the

paved road to the point of disposal. C10727. Once weather improves, disposal will resume at

the normal active face in the landfill.

Id

. Mr. Moose testified that the 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 the vehicle even reaches the

wheel wash area. C11421. Dust is to be controlled by use of a water truck, and a street sweeper

is to be used anywhere mud is created. C10728; C11485-11486.

The application provides for use of 10 to 15 foot high operational screening berms around

the perimeter to shield daily operations from the view of passersby and these berms also help

suppress noise and control litter. C10729. 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.

Id

. Operations are to be altered during windy

conditions and Mr. Moose explained that there would be primary, secondary and tertiary portable

fencing, with 20 foot high primary fencing to be located next to the active face. C10730. These

fences are to be moved every day, or may be moved multiple times per day, as needed.

Id

.

The site will be patrolled for litter pickup, and there are strict tarping procedures with

meaningful penalties meant to increase incentives for compliance. C10732. Odor control

includes covering waste as soon as possible throughout the course of the day, and also use of the

gas monitoring systems and flaring systems. C10735-10736. A professional exterminator will

regularly visit the site to inspect for vermin and rats, and will use appropriate measures to control

them. C11598-11599. 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 Yorkville’s

noise ordinance. C10744.

Security will be present at the facility from the time it closes at night until the following

morning to ensure that any trucks onsite are pre-approved and are part of the customer list, and

that no one else gains access to the facility. C10774-10775. The proposed facility incorporates a

convenience center to allow homeowners to dispose of waste in a series of roll-offs near the scale

house, and a recycling drop-off area where the public may dispose of recyclable materials.

C10801; C11543. Records concerning quality control and quality assurance are to be maintained

onsite, along with records regarding operation, construction and self-audits. C10806.

William Schmanski.

Mr. Schmanski is a civil engineer testified on behalf of FOGY

C14099-14100. Mr. Schmanski testified that the application does not meet Criterion ii with

respect to stormwater management. C14102-14103. Mr. Schmanski testified that the allowable

---

23

release rate set by Yorkville’s stormwater management ordinance is 0.15 cubic feet per second

(cfs) per acre and this was given in the application as the level the landfill was designed to meet.

C14105-14106. Mr. Schmanski testified that his review of the design is that the landfill will not

meet the 0.15 cfs for all drainage ways. C14108.

Mr. Schmanski has never previously been involved in stormwater management design for

a landfill, and he has never done a stormwater management review in connection with a landfill

siting application. C14111-14112. He admitted that the three drainage sections all drain to the

Fox River, and that in the aggregate, they meet the 0.15 cfs standard under the ordinance.

C14114. Mr. Schmanski was aware that the IEPA’s stormwater management regulations for

landfills are different than local regulations for other land uses, because the goal in stormwater

management of landfill includes minimizing infiltration into the landfill. C14112-14113.

Mr. Hyink.

Mr. Hyink offered testified on criterion ii and noted that more problems

could occur if the pollution leaks and enters the aquifers. C14351-14352. Mr. Hyink believes

that additional geologic investigation is needed and until that is done the best information is not

available. C14352.

Stan Ludwikowski.

2

Mr. Ludwikowski offered a public comment at the siting hearing.

C10952. Mr. Ludwikowski has a bachelor’s degree from the Illinois Institute of Technology and

is a professional engineer.

Id

. Mr. Ludwikowski noted that the plans for the first five years call

for wells that will be upgradient and no wells will be on the south end for 24 years. C10952-

10960.

Mr. Price’s Report.

Mr. Price found Mr. Drommerhausen and Mr. Moose credible and

found that with conditions, the planned facility will meet criterion ii. C18741. Mr. Price then

recommended 39 conditions including very specific technical requirements. C18741-18746.

Mr. Clark’s Report.

Mr. Clark notes that the “sheer number of conditions causes one to

carefully consider them to determine if Fox Moraine’s applications is deficient to the point that it

should be denied.” C18755. Mr. Clark also noted that “I do not find that any one of them [the

conditions] are particularly significant individually, but rather are added so that there will be no

question at a later date of what the design, construction and operations shall be.” C18755-18756.

Mr. Clark observed that all the conditions came from the testimony during the course of the

public hearing. C18756. Mr. Clark found that with the addition of the conditions, Fox

Moraine’s application met criterion ii.

Id

.

Facts on Criterion iii (Minimize Incompatibility and Impact on Property Values)

Chris Lannert.

Mr. Lannert testified on behalf of Fox Moraine concerning criterion iii,

which states that the facility is located so as to minimize incompatibility with the character of the

2

The Board has reviewed all of the public comments presented during the siting hearings. Space

does not allow the Board to summarize all of those public comments. However, because

Yorkville cites Mr. Ludwikowski’s public comment in the argument, so the Board will briefly

summarize his comment.

---

24

surrounding area and to minimize the effect on the value of the surrounding property. C08139,

C08281-8304. Mr. Lannert is president of the Lannert Group and has a degree from Michigan

State University majoring in landscape architecture and regional and urban planning. C08139.

Mr. Lannert has worked on a number of solid waste siting and transfer stations throughout the

Midwest. C08140.

Mr. Lannert prepared the section of the application on criterion iii and in preparation he

personally viewed the area on multiple occasions, using aerial photographs, touring on foot and

by car, to confirm actual land uses in the area. C08144; C08150-8151. After viewing the area,

Mr. Lannert prepared a landscape plan, created 3-D images, and worked with a model maker to

prepare a 3-D model of the landform. C08145-8146. His planning work for the facility

incorporated a variety of design elements to minimize incompatibility with the surrounding area.

C08531.

Mr. Lannert noted that the holdings of Mr. Hamman, who owns 2,000 acres in the area,

represent 51% of the land area situated within a one-mile circumference of the site. C08147.

Mr. Hamman’s land extends out in three directions from the proposed site. C08541. Mr.

Lannert determined that Mr. Hamman’s substantial holdings in the area could skew the results if

a one mile radius was used as the study area; therefore, Mr. Lannert utilized a two mile radius in

his analysis. C08147; C08186-8188; C08472. That two mile radius includes 13,083 acres,

which is 84% agricultural, 7% open space, 6% residential, and 2% Commonwealth Edison right

of way area. C08149-8150.

Mr. Lannert testified that the landfill is designed to minimize the incompatibility with the

surrounding area. C08168. Fox Moraine took into consideration the site’s frontage on highway

71, the contiguity to the Commonwealth Edison corridor, and the proximity to the proposed

Prairie Parkway. C08533. The natural undulations of the area were also considered in relation

to the final landform, so that the landform will be minimally intrusive. C08159-8160.

Vegetation planted will also match the seasonal colors of the area. C08529. The application

plans for berms that are ten to 12 feet high and feature vegetation that will add an additional ten

to 12 feet as natural screening. C08162-8163. This berming will also block noise from the

operations. C08517-8518.

Frank Harrison.

Mr. Harrison also testified on behalf of Fox Moraine concerning

criterion iii, specifically with respect to property values. C08571, C08648-8668. Mr. Harrison is

a real estate appraiser and land use consultant and has been in the business for 36 years.

Id

. Mr.

Harrison holds the MAI and SRA designations from the Appraisal Institute and has been

teaching throughout the United States for 29 years. C08571-8572.

In performing his real estate impact study, Mr. Harrison states that the analyst “creates a

familiarity with the location of the property and the type of property that is being . . . analyzed,

as well as the area in which the property is located.” C08575. Mr. Harrison explained that a

series of comparisons are done searching for similar types of properties and similar types of

locations.

Id

. Mr. Harrison drove through the area (C08576), looked at recent land sales

---

25

(C08578), and performed a historical case study by looking at other landfills throughout

Northern Illinois (

Id

). Mr. Harrison examined more closely the case studies, looking to the

public records and actual data from the studies to form his own perspective. C08578-8579. Mr.

Harrison performed an in-depth study of two landfills, Countryside in Lake County and Settler’s

Hill in Kane County. C08580. Mr. Harrison also reviewed the Residential Property Protection

Plan (Plan) included in the application for siting. C08582.

Mr. Harrison found that the Countryside landfill bears a number of similarities to the

proposed site and he was able to use several sales to do some comparative analysis. C08591.

Mr. Harrison noted that the area around the Countryside landfill is growing towards the landfill

and the Prairie Crossing development is in close proximity to the Countryside landfill. C08597.

Mr. Harrison opined that the Countryside landfill did not prevent municipal growth. C08599.

Mr. Harrison offered the same opinion concerning Settler’s Hill landfill. C08688.

Mr. Harrison testified that the Plan ensures that property owners will not see the value of

their property diminish because of development of the landfill. C08694. Mr. Harrison testified

that the one mile radius in the application is larger than most, which tend to be set in feet or a

quarter of a mile. C08695. Mr. Harrison also noted that the application has the Plan become

effective upon of filing the application while most are effective upon the permitting of the site.

C08695-8696.

Mr. Harrison testified that the type of development that typically occurs around an

interstate exchange, such as the one planned for the Prairie Parkway, is not high-end single-

family residential. C08700. Typically commercial, industrial and business park properties

develop in that type of area. C08701. Mr. Harrison stated that in his opinion the facility is

located so as to minimize the effect on the value of the surrounding property. C08718.

Edward Sleezer.

Mr. Sleezer testified on behalf of FOGY on criterion iii, specifically

regarding the Residential Property Protection Plan. C13481; 13484. Mr. Sleezer is a licensed

real estate broker and a farmer.

Id

. Mr. Sleezer has a bachelor’s degree from the University of

Illinois in agriculture. C13483. He is self-employed at Sleezer Real Estate. C13481-13482.

Mr. Sleezer has been a licensed real estate broker for eight years with five years as a sales person

in real estate and for ten years, Mr. Sleezer was Fox Township Assessor. C13482.

Mr. Sleezer opined that the Plan fails to minimize impacts because the Plan applies in a

very limited manner to a fraction of the properties in the surrounding area. C13487. Mr. Sleezer

states that the Plan does not cover agricultural property, business property, or business losses.

C13489. Also, the Plan does not protect subsequent buyers who wish to resell. C13490. The

Plan does not protect residences located after the application was filed and the property must be

enrolled within one year. C13491. Mr. Sleezer points out that the property must be on the

market continuously for one year before the Plan kicks in and that time frame is very long.

C13492-13493. The Plan allows for Fox Moraine to hire an appraiser to appraise the property

and Mr. Sleezer believes the appraiser should be independent. C13493-13494. Mr. Sleezer also

believes that funding for the Plan should be in an escrow account or somehow guaranteed.

C13495.

---

26

Mr. Sleezer acknowledged that he attempted to sell his property to Mr. Hamman and that

his property is not covered by the Plan. C13514-13522. Mr. Sleezer testified that he had

brokered less than five transactions a year in the previous two years and some of those were his

own transactions. C13516-13518. Mr. Sleezer had never reviewed a Residential Property

Protection Plan before the one included in the siting application. C13526.

R. Bud Wormley.

Mr. Wormley also testified on behalf of FOGY on criterion iii.

C13564. Mr. Wormley is a real estate and insurance broker, who owns the business called

Wormley Real Estate in Oswego.

Id

. Mr. Wormley has testified in his professional capacity

three or four times in condemnation and pipeline issues.

Id

. Mr. Wormley has a bachelor’s

degree from the University of Illinois in agricultural economics.

Id

. Mr. Wormley owns

property a little over a mile from the proposed site. C13585.

Mr. Wormley personally investigated and performed an analysis concerning the potential

impact of the landfill on property values. C13566-13567. Mr. Wormley opined that Fox

Moraine failed to minimize the impact on property values. C13575. Mr. Wormley specifically

takes issue with Mr. Harrison’s sales data that indicated the surrounding area was dominated by

“1031” exchanges

3

.

Id

. Mr. Wormley indicates that the growth that has occurred in the area is

residential.

Id

. Mr. Wormley further testified that developers had annexed land next to the

proposed site for residential use without knowing the landfill was proposed.

Id

. Mr. Wormley

testified that “1031” sales are likely to diminish exponentially as a result of loss of land value

due to the depreciation because of the proposed landfill as “1031” sales are looking for land that

will appreciate. C13575-13576.

Mr. Wormley expressed concerns that Fox Moraine did not consider the full impact of

loss including the long-term tax assessment, deterrent to growth in the area and loss of

employment opportunities. C13576-13582. Mr. Wormley talked to property owners in the area

about these concerns as a part of his investigation.

Id

.

Ted Schneller.

Mr. Schneller was the third witness presented by FOGY on criterion iii,

and he is a real estate appraiser, holding the general certification. C13642-13643. Mr. Schneller

has taken several courses and attended the College of DuPage.

Id

. Mr. Schneller has worked for

government entities including the Illinois Department of Transportation (IDOT), the DuPage

County Highway Department and the Kane County Department of Transportation, Division of

Land Acquisition as an approved fee appraiser. C13644-13645.

Mr. Schneller performed a highest and best use analysis which determines the use that

will yield the property the greatest net return in dollars. C13646. Mr. Schneller expressed

several concerns about the proposed landfill and the impact the landfill will have on the uses

around the facility. C13646-13657.

Douglas Adams.

Mr. Adams was the fourth witness by FOGY on criterion iii and he is a

licensed real estate appraiser in Illinois. C13885. He has master’s degree from University of

Chicago in finance and business school and he has been an appraiser for 30 years. C13886. Mr.

3

These are a type of real estate transaction with tax implications.

---

27

Adams performed a paired sales study, which is a study where you take two properties that are

identical as possible expect for the variable you are trying to measure. C13888. Mr. Adams

compared a landfill in rural Dewitt County, the Clinton landfill and in the Chicago area Hillside

landfill. C13894. Mr. Adams chose these two landfills because one was raw farmland and the

other a developed area.

Id

. Mr. Adams found that the landfill in Clinton had no noticeable

impact on the land values. C13904. Mr. Adams found that in his analysis, the properties closer

to the Hillside landfill sold for less. C13911. Mr. Adams believes that the landfill would be

more appropriately sited where the land was farmland and would remain farmland. C13920.

Joseph Abel.

Mr. Abel testified on behalf of FOGY and is a planning, zoning, and

economic development consultant and has been for approximately 45 years. C14562. Mr. Abel

holds a bachelor’s degree in city and regional planning from the University of Illinois. C14563.

Mr. Abel testified regarding the landfill’s compatibility with the surrounding area. C14570-

14572. As a land use planner, he said, “eighty percent of [his] work” deals with compatibility or

incompatibility and he opined that “the proposed landfill facility is not located so as to minimize

incompatibility with the character of the surrounding area.” C14572-14573. Mr. Abel reviewed

Yorkville’s comprehensive development plan in performing his review. C14574-14578. Mr.

Abel does not believe that the landfill will stimulate economic or residential development in the

area. C14579. Instead, Mr. Abel, expressed concern that the proposed landfill is in the

development corridor. C14691.

Mr. Abel disagreed with Mr. Lannert’s methodology, as there is “nothing magic” about a

one- or a two-mile radius around a particular facility. C14583. Mr. Abel does not perform his

analysis in the same way.

Id

. Rather, he determines compatibility by doing a very detailed land

use investigation and then determines what other uses are in the vicinity of the land use.

Id

. Mr.

Abel looks at the land use and decides how the uses “get to where they want to go.”

Id

. Mr.

Abel stated that his approach determines the area of influence in terms of compatibility.

Id

. Mr.

Abel’s methodology involves driving through the area surrounding the proposed landfill and

examining maps. C14598.

Mr. Abel also disagreed with the conclusions Mr. Lannert drew regarding the character of

the surrounding area. From a planning standpoint, Mr. Abel would not characterize the area

north of Walker Road, between Route 47 and the Fox River, as an agricultural area. C14598. In

Mr. Able’s opinion, areas are characterized as agricultural where there is square mile upon

square mile of agricultural land, with perhaps no more than one house per square mile. C14599.

Mr. Abel found that “there is the creeping of residential development” even south of Walker

road, “the southern limit of the subject property.” C14599. Mr. Abel, therefore, characterized

the “entire area . . . as a low-density residential development, [that] still has some agricultural or

farmsteads waiting to be developed.” C14573. Mr. Abel stated that the properties are waiting to

be developed, but they are not truly agricultural properties. C14600. Mr. Abel concluded that

the landfill as proposed was not compatible with its surroundings. C14608.

Mr. Price’s Report.

Mr. Price notes that the statute assumes the proposed landfill in not

compatible with the surrounding area so the first part of Mr. Harrison’s and Mr. Lannert’s

testimony that there will be no negative impact is not credible. C18746-18747. This is also true

with Mr. Abel’s testimony shifting the analysis to whether the siting will be compatible with an

---

28

area.

Id

. Mr. Price also “discounts” Mr. Harrison’s analysis of other reports where he did not

perform the underlying analysis. C18747. Mr. Price offers nine conditions and indicates that the

criterion could be met with those conditions.

Id

.

Mr. Clark’s Report.

Mr. Clark indicated his belief that the criterion had been met

subject to the addition of the conditions recommended in Mr. Price’s report. C18758.

Facts on Criterion v (Designed to Minimize Danger of Accidents, Fires and Spills)

Mr. Moose.

Mr. Moose also testified concerning measures incorporated in the

application to prevent accidental spills, as well as leak detection methods including visual

observation. C11350-11351. In addition, Mr. Moose testified that trucks receiving pumped

leachate 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 will cause leachate to drain from one

receptacle to the other, thereby severely limiting the quantity of any possible spill.

Id

. Mr.

Moose also testified concerning visual and audio alarms designed to immediately alert personnel

if a spill developed (C11538-11539), and testified that security personnel will be present onsite

when the facility is closed. C10774-10775. Additional testimony by Mr. Moose regarding

operational controls to avoid fire, spills, or other operational accidents is discussed in detail

above in the facts concerning criterion ii. Mr. Moose testified that based on his experience, the

application, and the materials he referred to during his testimony, his professional opinion is that

the plan of operations for the proposed facility is designed to minimize the danger to the

surrounding area from fires, spills, and other operational accidents. C10746.

Ron Edwards.

Mr. Edwards testified as a representative of Fox Valley Landfill

Services, which would be the operator of the proposed facility. C10173-10174. Mr. Edwards

has over 23 years of experience in the management of solid waste and is currently the vice-

president of Peoria Disposal Company (PDC), an owner/member of Fox Valley Landfill

Services. C10174-10175. Mr. Edwards has served as vice president of landfill operations for

five landfills in Illinois. C10173-10174. Mr. Edwards testified concerning the oversight that

would 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

Fox Valley Landfill Services with personnel who would be fully trained in the management of

solid waste, and who would perform routine daily and weekly inspections. PDC’s environmental

compliance department also would routinely audit personnel and operations. C10188. PDC’s

compliance coordinator typically visits each facility every week, the health and safety

coordinator visits each month, the compliance manager visits every three months, and Mr.

Edwards, as vice-president of landfill operations for PDC, visits each facility every six months.

C10212.

Mr. Edwards testified that the operator will have the necessary heavy equipment and

trained and experienced personnel onsite who can respond quickly to contain any fire that might

occur. C10488-10490. Employees at PDC facilities receive annual training, as well as monthly

‘tool box” meetings that are conducted by the health and safety coordinator. C10518. In

addition, monthly training sessions would be conducted by the environmental coordinator at the

landfill.

Id

.

---

29

Mr. Price’s Report.

Mr. Price found Mr. Moose’s testimony credible and indicated that

with the conditions imposed under criterion ii and v, criterion v is met. C18748.

Mr. Clark’s Report.

Mr. Clark believed that criterion v should be approved subject to

the conditions set forth under criterion ii. C18758.

Facts on Criterion vi (Minimize Impact on Traffic)

Michael Werthman.

Mr. Werthman, a traffic and transportation engineer with 17 years

of experience testified for Fox Moraine. C09038-9039. Mr. Werthman’s testimony concerns

criterion vi, whether the traffic patterns to and from the facility are so designed as to minimize

the impacts on existing traffic flow. He has worked on approximately 750 different projects,

including residential, commercial, and retail, and involving distribution, manufacturing, and

industrial facilities.

Id

. Mr. Werthman is a registered professional engineer in Illinois,

Pennsylvania and Wisconsin. C09041. He holds a bachelor’s degree in civil engineering from

Michigan State University, as well as a master's degree from Northwestern University.

Id

. 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. Werthman works throughout the greater Chicago area, on behalf of both private

entities and units of local government. C0941-09043. He testified that due to Yorkville’s rapid

growth rate and the limitations associated with having only one bridge across the Fox River,

traffic has become a primary concern for Yorkville, with or without a landfill. C09044-9045. In

the case of this project, he conducted a three-phase traffic impact study using the accepted

methodology within the industry and with transportation planning officials. C09046. Mr.

Werthman explained that traffic delays are typically expressed on an “A to F” scale, with “A”

representing the least amount of typical delay, and “F” representing the greatest delays. C09049-

9050. Under existing conditions, the intersections that would be most impacted by the proposed

landfill facility are currently operating at “B” and “C” levels. C09081. Even with the additional

landfill-generated traffic, Mr. Werthman testified that they would continue to still operate at the

same levels. C09081.

Mr. Werthman’s first phase of the traffic study looked at existing conditions by doing

field studies. C09051-9052. Mr. Werthman next held discussions with various transportation

officials including IDOT, the Kendall County Highway Department, the City of Yorkville, and

other public agencies. C09051. Mr. Werthman then collected and reviewed transportation-

related data, including existing traffic volumes, approved and proposed developments, planned

and proposed roadway improvements, and existing accident data. C09051-9052.

Peak period and daily traffic counts were conducted at critical intersections near the

proposed site. C09052. And finally, Mr. Werthman and his group conducted a gap study along

Route 71 at the location of the site access drive.

Id

. Route 71 is a northeast to southwest arterial

roadway a two-lane, undivided cross-section, and is considered a Class 2 truck route.

Id

. At

Route 71’s intersection with Route 47, there are separate left turn lanes.

Id

. Routes 47 and 126

are also Class 2 truck routes, with two-lane undivided cross-sections. C09053. All three of these

---

30

roadways are under the jurisdiction of IDOT and all are designated arterial truck routes that

connect important areas. C09054-9055. All of the routes carry both passenger and commercial

truck traffic.

Id

.

Mr. Werthman explained that IDOT has already received funding to build the first section

of the Prairie Parkway between Illinois 71 over the Fox River to Route 34, and construction is

scheduled to begin in 2009. C09064-9065. In addition, he testified that IDOT proposes to widen

Illinois 47 to a five-lane cross-section with additional intersection improvements between

Kennedy Road and Illinois. 71. C09066. Mr. Werthman also explained that the contract has

been awarded for significant improvements to the intersection of Illinois 71 and Illinois 126, and

that construction was scheduled to begin in the spring of 2007. C09066-9067.

The landfill traffic plan envisions use of the arterial roadways of Illinois Routes 71, 126,

and 47. C09069-9070; C09085. In assessing the potential impact the landfill may have on

traffic in the area, Mr. Werthman determined that the increase in traffic will be limited, as much

of the same 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. C09073-9074.

Mr. 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 trips per day, rather than the 494 trips per

day predicted for the landfill. C09075-9076. In the alternative, if the property was developed as

a warehouse facility, there would be an estimated 57 trips per acre, per day, rather than the 494

trips per day per acre, estimated for the proposed landfill facility. C09077. An office

development could be expected to generate 110 trips per acre per day. C09077. 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. C09077-9080.

Mr. Werthman concluded that the proposed design of the access drive would be more

than adequate to ensure that traffic demands can be accommodated efficiently. C09085. In Mr.

Werthman's opinion, based on his study of the proposed plan and the nature of existing traffic

flow, is that the traffic patterns to and from the facility were so designed as to minimize the

impact on the existing traffic flows. C09085. Mr. Werthman did not rely upon the planned

roadway improvements for the area. C09086.

Brent Coulter.

Mr. Coulter testified on behalf of Kendall County, and has a bachelor’s

degree in civil engineering from Vanderbilt University and a master’s degree in urban planning

from the University of Iowa. C12984-12985; 12991. Mr. Coulter is a certified professional

traffic engineer (C12986). He first came to the area in 1978 and since 2002 has had his own

business, Coulter Transportation Consulting. C12987-12988. Mr. Coulter has had recent

experience in the Route 47 corridor and done signal plans and intersection design studies on

Routes 30 and 34 in Oswego. C12989.

Mr. Coulter reviewed the siting application in the context of criterion vi (C12991-12992)

and opined that the impact of the landfill site on exiting traffic is not minimized. C12992. Mr.

---

31

Coulter first reviewed the traffic analysis prepared by Mr. Werthman. C12993. Mr. Coulter

noted the proposed truck traffic indicated in Mr. Werthman’s study and, in his opinion such truck

traffic was more appropriately served by regional expressways. C12995-12996. Mr. Coulter

noted that there is roughly 18 to 20 miles of two lane road between the proposed site and the

expressways. C12998.

Mr. Coulter agrees that Routes 126 and 47 are Class II truck routes but states that this

does not mean that there are not places where transportation by truck might be difficult or

conflict with the area. C12999. Mr. Coulter opines that there is a difference between legal

requirements versus a representation that Class II means that there are no defects on the roadway

which could compromise the operation of heavy trucks.

Id

.

Mr. Coulter also opined that the proposed truck traffic will worsen the impact of traffic

on Routes 47, 71 and 126. C13004. Specifically, Mr. Coulter testified that an intersection that is

already rated “F” is not a good location for additional heavy truck traffic. C13016. Mr. Coulter

stated that Mr. Werthman should have examined additional areas to be included based on local or

site-specific areas and he should have looked at the potential impact on residential areas.

C13012-13013.

Stephan Corcoran.

Mr. Corcoran testified on behalf of the Village of Plainfield on

criterion vi. C13805-13806; 13807. Mr. Corcoran is a traffic engineer and vice-president of

Land Strategies.

Id

. Mr. Corcoran has been practicing for approximately 22 years as a traffic

engineer doing traffic impact studies. C13806. Mr. Corcoran’s testimony concerned the impact

from the traffic at the proposed site as the traffic will impact Plainfield. C13810.

Mr. Corcoran reviewed the application and the traffic studies as well as studies already

performed for Plainfield regarding both the downtown and surrounding areas. C13810. Mr.

Corcoran testified that Plainfield currently faces a substantial transportation problem and

Plainfield is trying to decrease thru truck traffic in the downtown and through some of

Plainfield’s subdivisions. C13817-13879.

Mr. Corcoran noted that Will, DuPage, and Cook Counties will generate 90% of the

waste tonnage throughout the service area and the main route will be interstate 55 to Route 126.

C13824. Mr. Corcoran believes that the application underestimates the number of trucks that

will pass through Plainfield to the proposed site.

Id

. Mr. Corcoran opines that criteria vi is not

met because the landfill will generate a significant amount of truck traffic through Plainfield

downtown area as well as increasing delays at intersections in Plainfield. C13832.

Mr. Price’s Report.

Mr. Price found Mr. Werthman credible and found that the expert

presented by Kendall County used assumptions not recognized as valid for this type of

development. C18748. Mr. Price further found that additional conditions are necessary to

further minimize the impact on traffic and recommends four conditions. C18748-18749.

Mr. Clark’s Report.

Mr. Clark concluded that Fox Moraine had done what could be

done to minimize the impact on traffic given the current roadway system. C18760. Mr. Clark

stated that he also believed that as future roadway improvements are constructed further

---

32

minimization of impacts may be possible.

Id

. Mr. Clark recommended two additional

conditions for the approval of criterion vi.

Facts on Criterion viii (Consistency with the Solid Waste Management Plan)

Walter S. Willis.

Mr. Willis testified for Fox Moraine on criterion viii, whether the

facility is consistent with the Solid Waste Management Plan (SWMP) adopted by Kendall

County. C11715. Mr. Willis has 20 years experience doing solid waste planning in Illinois and

throughout the country. C11716. Mr. Willis developed 38 plans for 38 counties in Illinois.

C11734. Mr. Willis began his career working for the IEPA in the Solid Waste Management

Section, and worked on the first available solid waste disposal capacity report. C11744. Mr.

Willis originated the database for the landfill sites in Illinois.

Id

. He was involved when the

Solid Waste Planning and Recycling Act (415 ILCS 15/1

et seq.

(2008)) was first being

considered.

Id

.

Mr. Willis testified that the SWMP adopted in 1995 was adopted after several meetings

and outreach with communities. C11728. The 2000 update had several meetings though fewer

than the 1995 plan. C11729. Mr. Willis testified that in 2005 only one public hearing was held

and the adoption of the 2006 resolutions was accomplished with very little input. C11730. On

May 4, 2006 Kendall County adopted a resolution to the SWMP and Mr. Willis opined that the

resolution was adopted contrary to the principles set forth by Kendall County in 1995. C11737;

C12147.

Mr. Willis testified to the sequence of events regarding the SWMP beginning in July of

2000, when the first Five Year Update was completed. C11748-11749. In February 2005, the

Ten Year Update to was completed. C11749. Mr. Willis opined that the SWMP consists of the

1995 Plan and the 2000 and 2005 updates. The earlier SWMP has not been superseded by later

amending documents. C11750. Rather, the Five Year Update, Ten Year Update, and all later

amendments supplemented the existing SWMP substance; they did not repeal previously-

adopted portions of the SWMP. C11763-11764. The 2005 Plan Update expressly provides for

intergovernmental cooperation between Kendall County and the municipalities in addressing

solid waste issues. C11986.

Mr. Willis went on to opine that the SWMP clearly contemplates municipal siting of

landfills, as the SWMP states: “if the County is not the appropriate siting authority, a Host

Community Agreement must be made with the siting authority.” C11756; C12003. As Mr.

Willis noted, the Kendall County has never removed this language from the SWMP. C11757.

Mr. Willis believes that the SWMP therefore requires that if an applicant sites a landfill in an

incorporated area of Kendall County, the applicant must have a Host Agreement with the

municipality wherein the proposed landfill is sited. C11758.

On September 26, 2006, Fox Moraine and Yorkville entered into a Host Agreement.

C11759. Accordingly, Willis noted that such a Host Agreement is entirely consistent with the

requirement of the SWMP.

Id

. On May 4, 2006, Kendall County adopted a resolution that

provides that landfills may only be located in unincorporated areas of the county. C11741;

C12147. Mr. Willis opined that if the resolution bans local municipalities from acting as siting

---

33

authorities, the resolution is contrary to the legislature’s expressed intention to allow both

counties and local governments to act as siting authorities. C11849. Furthermore, Mr. 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. C11755-11756; C11762-11763. Willis

opined that the application was therefore consistent with the “plain and ordinary language of the

plan,” (C11755).

John Church.

Mr. Church testified on behalf of Kendall County concerning criterion

viii. C12903-04. Mr. Church testified in his capacity as the Kendall County Board Chairman.

C12904. Mr. Church testified that after the adoption of the resolution, which provides that any

landfill may only be located in unincorporated areas of the county, the SWMP text was revised

to reflect the amendment. C12906-07; C12147. Mr. Church opined that in light of the resolution

adopted on May 4, 2006, the Fox Moraine application was not consistent with the SWMP.

C12912.

Mr. Price’s Report.

Mr. Price reported that this is a “straight forward judgment call for

you” and left the decision to Yorkville. C18749.

Mr. Clark’s Report.

Mr. Clark agreed that the issue of whether criterion viii was met

was a legal question and depended on interpretation of the word “located” as used in the SWMP.

C18762. Mr. Clark recommended a finding that Fox Moraine met the burden on criterion viii,

although noting that this decision was “headed” for the Board and the appellate court.

Id

.

Facts Concerning Operator Experience

Mr. Edwards.

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. C10176-10180. PDC

operates six solid waste landfills, and affiliates include a number of collection and transportation

companies, as well as PDC Laboratories, Inc., in Peoria. C10179-10180; C10191. PDC

Laboratories, Inc provides local drinking water and waste water testing services to many

municipalities in the State of Illinois.

Id

. Another PDC affiliate (PDC Technical Services) also

services numerous municipal clients. C10180.

Fox Valley Landfill Services is a newly formed company that has contracted to serve as

the operator of the proposed facility. C10190. Upon issuance of a permit by the State, Fox

Valley Landfill Services would be responsible for compliance matters at the facility. C10323-

10325. As a new entity, Fox Valley Landfill Services has no record to examine; PDC’s record

for environmental compliance reveals that during the 90 year history of waste management, PDC

has received only minor violation notices. C10193-10200. 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. C10200. Since 1990, PDC has had 350

inspections of PDC facilities without a violation. C10457.

Mr. Price’s Report.

Mr. Price reported the Mr. Edwards’ testimony was less persuasive

concerning the plan of operations and the obligations of the operators. C18741. Mr. Price noted

---

34

that Mr. Edwards’ testimony highlighted the paradox that the more experienced an operator, the

more of a history of regulation and enforcement there will be to judge an operator on.

Id

.

Mr. Clark’s Report.

Mr. Clark noted that Fox Valley Landfill Services has no history

and the corporate relatives of Fox Valley Landfill Services were examined in depth. C18745.

Mr. Clark noted that none of the companies have exemplary history but there are few violations

in the last 10 years.

Id

.

MS. SPEARS’ CREDIBILITY

As a preliminary matter the Board must address the arguments by Fox that Ms. Spear’s

testimony was not credible.

Arguments of the Parties on Ms. Spears Credibility

Fox Moraine acknowledges that a motion was not filed with the hearing officer

challenging Ms. Spears’ credibility; however, Fox Moraine argues that the conflict between Ms.

Spears’ previous statement and her testimony at the Board’s hearing clearly require such a

finding. FMBr. at 48. Fox Moraine argues that Ms. Spears was a vocal opponent during the

meetings concerning annexation, the host agreement, and vacation of Sleepy Hollow Road.

Id

.

Fox Moraine contends that Ms. Spears’ statements “are so unbelievable that her recent

protestation of fairness should clearly be disregarded.”

Id

. Fox Moraine argues that Ms. Spears

acknowledged voting “no” on all the statutory criteria and asserts that this would include criteria

not even at issue. FMBr. at 48-49.

Fox Moraine maintains that Ms. Spears was evasive about the

ex parte

communications

she received in that she could not remember how many she received. FMBr. at 49, citing 4/21Tr.

at 79-80. Fox Moraine claims that Ms. Spears “memory improved dramatically and remarkably

when asked” about pre-filing contact with the Fox Moraine’s representatives.

Id

, citing 4/21Tr.

at 129-30. Fox Moraine also argues that Ms. Spears claims to not have looked outside the

record, but that several of the points made in her comments lack support in the record so her

denial is not credible. FMBr. at 49. Fox Moraine also finds impossible Ms. Spears claims to

have seen the final version of Resolution 2007-36 on the night of May 24, 2007.

Id

.

Board Finding on Ms. Spears’ Credibility

The Board notes that Yorkville does not specifically respond to Fox Moraine’s argument

that Ms. Spears was not credible. However, Yorkville’s arguments in other portions of the brief

establish Yorkville’s position that Ms. Spears was credible. The Board finds that Ms. Spears is

credible.

The Board has carefully reviewed the record and Ms. Spears’ statements may at times

appear contradictory. However, the Board does not find this unusual in a proceeding which has

had substantial discovery, including depositions, and spanning several years. Therefore, the

Board evaluates Ms. Spears’ testimony, in the context of the rest of the evidence when making

findings of fact.

---

35

ARGUMENTS ON FUNDAMENTAL FAIRNESS

The Board will begin with a summary of Fox Moraine’s arguments followed by a

summary of Yorkville’s arguments. The Board will then summarize FOGY’s arguments and

Fox Moraine’s Reply.

Fox Moraine’s Arguments

Fox Moraine argues that in making a decision on siting, the local authority is called upon

to act in a quasi-judicial role and must make decisions based solely on the evidence in the record.

FMBr. at 5, citing City of Rockford v. Winnebago County Board, PCB 87-92 (Nov. 19, 1987);

Concerned Adjoining Owners v. PCB, 288 Ill. App. 3d 565, 680 N.E.2d 810 (5th Dist. 1997);

and Waste Management of Illinois, Inc. v. PCB, 175 Ill. App. 3d 1023, 530 N.E.2d 682. Fox

Moraine asserts that of equal importance is the principle that collusion between an applicant or

presumably an opponent and the actual decisionmaker resulting in pre-judgment of the facts is

fundamentally unfair. FMBr. at 5, citing Land and Lakes Co. v. PCB, 319 Ill. App. 3d 41, 743

N.E.2d 188.

Deliberative Process

Fox Moraine notes that the Board has never reversed a local siting denial based on a

finding that the decision was against the manifest weight of the evidence; however the Appellate

Court has reversed. FMBr. at 7-8, citing Industrial Fuels Resources v. PCB, 227 Ill. App. 3d

533, 592 N.E.2d 148 (1st Dist. 1992). Fox Moraine further notes that the Board has not reversed

a denial on a finding that the proceedings were fundamentally unfair in almost 22 years. FMBr.

at 8, citing City of Rockford v. Winnebago County Board

, PCB 87-92 (Nov. 19, 1987). Fox

Moraine argues that in Rockford

, the Board found that the decisionmaker made little real

distinction between the quasi-judicial functions of siting and legislative functions.

Id

. Fox

Moraine states that the Board noted that the decisionmaker had a lack of familiarity with the

statutory criteria and the siting committee recommendations.

Id

.

Fox Moraine argues that since the Board’s decision in Rockford, the deliberative process

privilege as that privilege is applied in Board decisions has expanded considerably. FMBr. at 8.

Fox Moraine opines that questions regarding a decisionmaker’s familiarity with the statutory

criteria or contents of the recommendations would be disallowed as invading the deliberative

process.

Id

. Fox Moraine asserts that this is a highly problematic trend because a determination

as to whether or not a decisionmaker relied on information outside the record cannot be made if

the questions cannot be asked.

Id

. Fox Moraine argues that the deliberative process shield has

become a “shield behind which decisionmakers hide to avoid disclosure of the fact that their

decision was not based on evidence presented.”

Id

.

Fox Moraine asserts that the deliberative process privilege does not exist in Illinois where

bad faith and government misconduct pervade. FMBr. at 8, citing People,

ex rel.

Birkett v. City

of Chicago, 184 Ill. 2d 521, 705 N.E.2d 48 (1999). Fox Moraine concedes that the Chicago case

is distinguishable on the facts; however, Fox Moraine maintains that the principle applies in this

---

36

case. FMBr. at 8. Fox Moraine urges the Board to revisit previous holdings on the deliberative

process in this case, because this case is “suffused with bad faith”. FMBr. at 9.

Fox Moraine notes that the Board has recently allowed the deliberative process privilege

to remain in place and cites to Rochelle Waste Disposal v City of Rochelle, PCB 03-218 (Apr.

15, 2004) and Peoria Disposal Co. v. Peoria County Board, PCB 06-184 (June 21, 2007). FMBr.

at 9. Fox Moraine argues that what distinguishes those cases from this one is that in Rochelle

and Peoria Disposal the decisionmakers, though misguided appeared to be acting with good

intentions and good faith.

Id

. Furthermore, Fox Moraine notes that where good faith has been in

evidence, the Appellate Court had declined to hold local decisionmakers to the same standard as

judicial bodies.

Id

, citing Southwest Energy v. PCB, 275 Ill. App. 3d 84, 655 N.E.2d 304 (4th

Dist. 1995). Fox Moraine claims that what sets this case apart is the evidence here does not

demonstrate good faith, but rather the worst intentions. FMBr. at 9.

Pre-application Activities

Fox Moraine states that pollution control facility siting proposals, particularly for

landfills, generate vocal opposition and that is particularly true where the proposed site is a green

field. FMBr. at 9-10. Fox Moraine alleges that the internet has compounded the problem by

allowing members of the general public to become “self styled anti-landfill experts” and has

allowed for better organization of opposition. FMBr. at 10.

Fox Moraine asserts that the intentions and subsequent actions of Fox Moraine were not a

surprise to the city council, given that Fox Moraine had met with council members and the

memorandum prepared by Mr. Wyeth, city attorney at that time. FMBr. at 10. Fox Moraine

maintains that during the council meetings held between September 25, 2006 and January 23,

2007, Ms. Burd and Ms. Spears became the “champions of the objectors’ cause”.

Id

. Fox

Moraine further maintains that during this same time period, the “incessant and intimidating

clamor of the objectors began to wear down the will of” the aldermen to act fairly.

Id

.

Fox Moraine points out that the transcript of the annexation hearing on September 25,

2006 is nearly 200 pages and comprises almost entirely comments in opposition to annexation

and the anticipated landfill. FMBr. at 11. Fox Moraine states that Mr. Plocher, subsequently “ a

member of Burd’s anti-landfill slate,” spoke in opposition to a landfill.

Id

. Fox Moraine brings

to the Board’s attention that Mr. Milliron spoke seven times during the hearing and Mr. Milliron

was “the most strident landfill opponent.”

Id

. Fox Moraine also indicates that the hearing was

interrupted for applause to anti-landfill statements 32 times.

Id

.

Fox Moraine claims that the September 26, 2006 meeting was more of the same. FMBr.

at 12. The meeting was interrupted 18 times for applause for statements expressing anti-landfill

sentiment and Mr. Milliron was a “frequent speaker”.

Id

. Fox Moraine points to Mr. Blazer’s

statements and argues that Mr. Blazer “opined at length” that siting a landfill in Yorkville was

prohibited by the Kendall County Solid Waste Plan.

Id

. Fox Moraine characterizes Mr. Blazer’s

statements as indicating that the Yorkville host agreement with Fox Moraine was inferior to the

Kendall County host agreement with a Fox Moraine competitor.

Id

. Fox Moraine notes that Mr.

---

37

Blazer indicated that Kendall County would oppose siting of a landfill in Yorkville and urged the

council to stop the process.

Id

.

Fox Moraine asserts that because of the statements made and reaction of the audiences at

the September 25 and 26, 2006 meetings, “the cards were on the table” and the fact that

Yorkville would need to vacate a road and Kendall County would oppose the landfill were clear.

FMBr. at 11-13. Fox Moraine maintains that “a seemingly endless series of meetings” were held

after the annexation to debate the merits of the host agreement and the vacating of Sleepy

Hollow Road. FMBr. at 14. Fox Moraine asserts that the meetings became a “streaming, real-

time forum” of landfill opponents to attack Fox Moraine.

Id

.

Fox Moraine refers to six specific meetings occurring between October 10, 2006 and

November 30, 2006 and asserts that the public comments offered at those meetings “constituted

a relentless and continuing

ad hominem

attack” on Yorkville for annexing the property. FMBr.

at 14-15. Fox Moraine claims that during these meetings Ms. Burd and Ms. Spears emerged “as

the darlings of the opposition speakers and crowd” and Ms. Burd and Ms. Spears “embraced” the

idea that the host agreement was unfavorable to Yorkville.

Id

. Fox Moraine argues that Ms.

Burd and Ms. Spears claimed that the annexation agreement was void because the requirement to

vacate Sleepy Hollow Road required a super majority which resulted in talk of litigation.

Id

.

Fox Moraine asserts that Ms. Spears had other memory lapses, but remembered clearly that

Yorkville felt at risk for being sued for failing to properly vacate Sleepy Hollow Road.

Id

.

Fox Moraine argues that one of the most outspoken landfill opponents was Ron Parrish,

an officer in FOGY. FMBr. at 17. Fox Moraine asserts that the opposition speakers were loud,

strident and disruptive, one of the worst crowds ever witnessed by Mr. Moose.

Id

. Fox Moraine

argues that Mr. Moose observed the effect on the aldermen. FMBr. at 18. Fox Moraine’s project

manager, Mr. Murphy recalled the meetings as being constantly interrupted by anti-landfill

“diatribes” and that the audience members were “taunting and cackling” at some of the elected

officials.

Id

. Fox Moraine notes that Mr. Besco testified to regular and forceful attacks leveled

by Mr. Milliron and Mr. Parrish.

Id

.

Fox Moraine asserts that the reactions of various council members is “telling” as Ms.

Spears had no problem with opponents. FMBr. at 18, citing 4/21Tr. at 106. Fox Moraine notes

that Mr. Werderich who was a co-founder of FOGY, testified that the public never acted

inappropriately at council meetings. FMBr. at 18, citing 4/21Tr. at 301, 303, 309. Fox Moraine

further notes that Ms. Burd did concede the Mr. Milliron was threatened with eviction, but

indicated that the conduct did not embarrass her. FMBr. at 18, citing 4/21Tr. at 187-88.

Fox Moraine argues that boisterous and disruptive behavior is bad enough, but in this

case the opposition went further. FMBr. at 19. Fox Moraine claims that the opposition took the

form of threats and personal intimidation.

Id

. Fox Moraine asserts that aldermen were subjected

to name calling at public hearings and that police reports were filed.

Id

. Fox Moraine claims

that ultimately only Fox Moraine remained restrained during the process and this was to Fox

Moraine’s detriment.

Id

.

---

38

Alleged Bias of Council Members

Fox Moraine notes that Ms. Spears voted “no” to annexation, the annexation agreement

and the host agreement. FMBr. at 13. Fox Moraine further notes that Ms. Spears voted present

on the amendment of the ordinance relating to pollution control facility siting.

Id

. Fox Moraine

points to statements made by Ms. Spears at an October 24, 2006 meeting indicating that she had

concerns about the host agreement and the annexation agreement. FMBr. at 16.

Fox Moraine notes that Ms. Burd also voted “no” to annexation, the annexation

agreement and the host agreement. FMBr. at 13. Fox Moraine argues that Ms. Burd’s claims

not to have connected the annexation with the landfill siting process are contradicted by the

record and Mr. Besco. FMBr. at 14, citing 4/22Tr. at 154. Fox Moraine points to Mr. Besco’s

testimony recalling that Ms. Burd called him about annexation so that Yorkville could receive

the tipping fees.

Id

. Mr. Besco further testified that on the night of the annexation hearing, Ms.

Burd changed her mind.

Id

.

Fox Moraine asserts that despite the current Yorkville city administrator’s view that the

landfill siting was a primary issue in the 2007 campaign

4

, Ms. Burd indicated that she was not an

anti-landfill candidate for mayor. FMBr. at 20, citing 4/21Tr. at 174. According to Fox

Moraine, Mr. Munns initially corroborated Ms. Burd, but then agreed that her association with

anti-landfill groups was public knowledge. FMBr. at 20, citing 4/22Tr. at 78. Fox Moraine

claims that the most compelling evidence is Ms. Burd’s personal and political associations with

landfill opponents including members of her campaign committee, Mr. Milliron, Mr. Parrish and

Mr. Werderich. FMBr. at 20, citing 4/21Tr. at 181. In addition, Fox Moraine claims that Mr.

Plocher and Mr. Sleezer were also members of Ms. Burd’s campaign committee and Mr. Sleezer

testified as an expert for FOGY. FMBr. at 20, citing 4/22Tr. at 18, C13480.

Fox Moraine asserts that Ms. Burd’s campaign committee is at the “heart of the

organized effort” to defeat the siting application. FMBr. at 20. Fox Moraine argues that Mr.

Parrish gave frequent statements in opposition to the landfill and donated thousands of dollars to

Ms. Burd’s campaign in cash and in kind. FMBr. at 20-21. According to Fox Moraine, Mr.

Werderich also spoke out in opposition to annexation and organized opposition, including co-

founding FOGY. FMBr. at 21. Furthermore, Fox Moraine claims that Mr. Werderich decided to

run for aldermen because he felt that the council was not listening to constituents regarding

opposition to the landfill and Mr. Werderich passed out literature informing would-be voters that

he was among the first to oppose annexation.

Id

.

Fox Moraine asserts that both Mr. Werderich and Mr. Plocher’s campaigns were funded

by Mr. Milliron and Mr. Parish who were both vocal opponents and Mr. Milliron was a founding

4

In the Board’s proceeding United City of Yorkville v. IEPA and Hamman Farms PCB 08-95,

the city administrator filed a verification which indicated that the landfill siting was “the primary

issue in the last city election and change in administration.” The Board’s hearing officer allowed

the filing as an offer of proof and the Board will take notice of the filing in another of the

Board’s dockets.

---

39

member of FOGY. FMBr. at 21. Fox Moraine argues that some of Mr. Milliron’s statements

were “beyond the pale” and that he “relentlessly attacked” the mayor at the meetings.

Id

.

According to Fox Moraine, Mr. Milliron also was responsible for reading into the record at the

March 26, 2007 siting hearing a previously confidential memorandum from Mr. Wyeth to the

council concerning annexation. FMBr. at 22, citing C13316.

Fox Moraine argues that the record is indisputable that the most steadfast, vocal members

of the landfill opposition joined in Ms. Burd’s campaign committee and Ms. Burd’s responses to

questions during the hearing “defy comprehension”. FMBr. at 22. Fox Moraine points to Ms.

Burd’s testimony that she did not know Mr. Milliron and Mr. Parrish were landfill opponents and

that she did not know Mr. Werderich was a founding member of FOGY.

Id

.

Fox Moraine argues that Ms. Sutcliff prejudged the application and points to Ms.

Sutcliff’s website in support of the argument. FMBr. at 23. Fox Moraine argues that the

materials prepared for and published on the website reveal her clear bias and pre-judgment as

well as a political agenda.

Id

. Fox Moraine maintains that the statements of Ms. Sutcliff go far

beyond a mere expression of opinion and are inflammatory with a clear promise to vote against

siting. FMBr. at 25.

Yorkville Public Hearing on Siting

Fox Moraine asserts that many of the candidates and aldermen had already formed

opinions before the public hearings. Ms. Burd and Mr. Werderich “did all they could to

undermine the statutory public hearing before” the hearing began. FMBr. at 25. In support of

this argument, Fox Moraine points to Ms. Burd’s request that Yorkville pay for legal

representation for citizen’s groups and Mr. Werderich’s statement that the hearing presented only

one side.

Id

. Fox Moraine maintains that that objectors’ behavior at the public hearing was

disruptive with the record indicating on the first day laughter by the crowd during the opening

statement by Fox Moraine.

Id

.

Fox Moraine claims that the hearings were intentionally “dragged out and prolonged” by

opponents to ensure that a final vote on the siting application could not occur before the seating

of the new aldermen. FMBr. at 26. Fox Moraine concluded presenting evidence on the

application on March 24, 2007, and hearings continued for four more weeks.

Id

. Fox Moraine

claims that Yorkville’s siting ordinance was violated when the hearings were suspended from

April 4 through April 19, as the ordinance allowed no more than a five-day recess.

Id,

citing

C00748. Fox Moraine argues that the delay was occasioned by the opponents and Yorkville and

as a result of the delay there was a public comment period which ended one week before the

statutory decision deadline. FMBr. at 26-27.

Involvement of City Attorney

Fox Moraine asserts that Ms. Burd turned to the Wildman law firm to assist in defeating

the Fox Moraine siting proposal. FMBr. at 28-29. Fox Moraine notes that Ms. Burd contacted

Wildman before officially taking office, though she insists that she did not authorize charges and

lacked authority to engage the firm. FMBr. at 29. Fox Moraine maintains that the invoice

---

40

indicates that for the period of April 27, 2007 to May 29, 2007, more than 50 hours were logged

by the Wildman law firm. FMBr. at 30. Fox Moraine notes that Yorkville city council had hired

the firm to perform work totaling 50 hours a month at a fixed rate.

Id

. Furthermore, the invoice

indicates that legal services are charged beginning eleven days before Ms. Burd was sworn in as

mayor.

Id

. In addition to the hours worked, Fox Moraine argues that three attorneys not

appointed as city attorney billed for almost 100 hours.

Id

. Fox Moraine opines that the

“inescapable inference” is that the amount and scope of work was far beyond that authorized by

the city council and represented by Ms. Burd.

Id

.

Fox Moraine continues the argument concerning the attorneys at the Wildman law firm

not retained as city attorney noting that the invoice reflects several dozen hours performed by

those attorneys. FMBr. at 30. Fox Moraine opines that “it seems incomprehensible” that the

Wildman firm would proceed with a project committing dozens of hours before being retained

by a client. FMBr. at 30-31. Fox Moraine argues that none of the work reflected on Fox

Moraine Exhibit 16 represents the kind of work or tasks associated with a city attorney but rather

is directed solely toward the landfill proposal. FMBr. at 31. Fox Moraine asserts that more

importantly the tasks reflected on the invoice are directed toward the denial of the application.

Id

.

Fox Moraine delineates several items listed on the Wildman invoice arguing that these

examples reflect the Ms. Burd’s administration’s “strategy” for defeating the landfill. FMBr. at

31-32. Fox Moraine asserts that the listed examples occurred prior to Ms. Burd being sworn in

as mayor and the appointment of Mr. Roth as city attorney. Fox Moraine offers that given Ms.

Burd’s denial of giving the Wildman firm any direction or scope of work, Ms. Burd’s failed

recollection of a meeting with the firm on April 30, 2007, is not a surprise. FMBr. at 32. Fox

Moraine asserts that the description on the invoice of that meeting “clearly implies” that the firm

received direction from Yorkville more than a week before Mr. Roth was hired.

Id

. Fox

Moraine notes that for the next several weeks the Wildman firm worked on reviewing evidence

and preparing a report, at the same time that two other reports were being prepared for Yorkville

pursuant to city ordinance.

Id

. The reports required by the ordinance were from the hearing

officer Larry Clark and Mr. Price. FMBr. at 33.

Fox Moraine finds curious how much time Wildman spent reviewing Mr. Clark and Mr.

Price’s reports. FMBr. at 33. Fox Moraine asserts that based on the evidence in the record, Ms.

Burd “could clearly anticipate” that Mr. Clark and Mr. Price would recommend siting approval

and such recommendations would “have to be undermined to defeat” siting.

Id

. Fox Moraine

claims that Ms. Burd “realized she would need a massive, impressive-sounding report” to offset

the strong recommendation of Mr. Clark and Mr. Price.

Id

. Fox Moraine maintains that the

conclusion is obvious that the Wildman firm was under clear direction to construct a case for

denial of siting. FMBr. at 33-34.

Yorkville Deliberations

Fox Moraine argues that the deliberations on May 23 and 24, 2007 were the “Valerie

Burd’s show” and the nonappearance by Mr. Clark and Mr. Price upset some of the aldermen.

FMBr. at 34. Fox Moraine concedes that Ms. Burd testified that she could not remember if Mr.

---

41

Clark and Mr. Price had been invited to the deliberations; “[i]t is, however, naïve to believe

[Ms.] Burd did not take steps to ensure that Clark and Price would not be present to assist.”

Id

.

Fox Moraine opines that with Mr. Clark and Mr. Price unavailable, there was no one to point out

that FOGY’s expert evidence was unqualified conjecture.

Id

. Fox Moraine claims that the

Yorkville deliberations are fraught with error in several areas.

Id

.

Council had insufficient time to review the evidence.

Fox Moraine notes that the city

council received the reports from Mr. Clark and Mr. Price as well as Fox Moraine’s final

comments the on May 23, 2007, the night of deliberations. FMBr. at 35. Fox Moraine also

notes that Yorkville began deliberating two days after the close of the comment period.

Id

. Fox

Moraine claims that deliberations were required because of the fast approaching decision

deadline due to numerous delays “occasioned by the opposition and the city, which were used to

drag out the proceedings” to ensure that the vote on siting occurred after the April 17, 2007

election.

Id

. Fox Moraine asserts that Mr. Munns complained about the absence of the hearing

officer, whose experience would have been an asset.

Id

. In addition to Mr. Munns, Fox Moraine

notes that Mr. Besco, Mr. Leslie, Mr. Golinski, and Ms. Spears expressed concerns about the

inability to read all the material.

Id

.

Fox Moraine argues that though the decisionmaker cannot consider matters outside the

record, the inability to consider the evidence in the record renders the proceeding fundamentally

unfair. FMBr. at 36. Fox Moraine asserts that in this case a majority of the council indicated

more time to read the material was necessary in order to be able to consider all the evidence and

failure to grant that time renders the proceeding fundamentally unfair.

Id

.

Reliance on the “Roth Report”.

Fox Moraine asserts that the invoice from the

Wildman firm establishes that Ms. Burd directed the Wildman attorneys to prepare a report and a

set of recommendations to counter the reports from the hearing officer and Yorkville staff.

FMBr. at 36. Fox Moraine notes that the invoice indicates on May 23, 2007 a final version of

legal memorandum analyzing evidence and findings and recommendations was prepared; this

report was the subject of pre-hearing motions and was known as the Roth Report.

Id.

The

hearing officer ruled that the Roth Report was not subject to disclosure due to attorney-client

privilege.

Id

.

Fox Moraine argues that the existence of the Roth Report was confirmed by the aldermen

on May 23, 2007 and was considered by the aldermen in making their decision. FMBr. at 36.

Fox Moraine argues that the statement of Mr. Munns, who indicated that the Roth Report

conflicted with the reports by Mr. Clark and Mr. Price, is critical. FMBr. at 37. Fox Moraine

opines that the Roth Report was elevated by Yorkville from legal advice to substantive evidence

and was given the same weight as the reports prepared by Mr. Clark and Mr. Price.

Id

. Fox

Moraine concedes that the Board has long held that decisionmakers may rely on reports and

proposed findings of fact prepared by consultants; however, those reports have always been

made available to the public.

Id

. In this case, Fox Moraine maintains that the Roth Report was

researched and drafted as a substantive review and critiques of the evidence and that the

aldermen relied on the Roth Report in the same manner as the reports prepared by Mr. Clark and

Mr. Price.

Id

. The contents of the Roth Report were not included in the record, so “no one will

---

42

ever know” if the report misstated facts, made references to matters outside the record, or

included prejudicial or unfair material.

Id

.

Fox Moraine asserts that Yorkville’s claim that the Roth Report is protected by the

attorney client privilege is true only in the most superficial sense. FMBr. at 38. Fox Moraine

claims that the Roth Report is functionally no different than the reports prepared by Mr. Clark

and Mr. Price, which were not protected by the privilege.

Id

. Fox Moraine argues that the Roth

Report should have been disclosed and Yorkville’s reliance on the report renders the proceedings

fundamentally unfair.

Id

.

Reliance on Information not in the Record.

Fox Moraine asserts that a decision based

on information not received into evidence is a classic example of a proceeding that is

fundamentally unfair. FMBr. at 38. Fox Moraine points to a statement of Ms. Burd indicating

that some aldermen had made their decision based on “their own research and information they

have gotten” to support Fox Moraine’s position.

Id

. Fox Moraine asserts that this statement

indicates that independent research was a “hallmark” of the decisionmaking process.

Id

. Fox

Moraine maintains that Ms. Spears made multiple references to information and material not a

part of the record. FMBr. at 38-39. Specifically, Fox Moraine claims that the record does not

include “EPA records” that indicate adequate landfill capacity for nine to 15 years. FMBr. at 39.

Fox Moraine also takes issue with Ms. Spears’ proposal of a specific technical standard for

leachate storage tanks and Ms. Spears’ comments about a vinyl chloride level.

Id

. Fox Moraine

lastly notes that the evidence in the record is directly contrary to Ms. Spears’ suggestions about

the safety of the landfill design without a double composite liner system with a leak detection

component.

Id

.

Fox Moraine asserts that Mr. Werderich also relied on information outside the record.

FMBr. at 40. Fox Moraine claims that Mr. Werderich alleged that there had been citizen

complaints regarding Don Hamman’s composting operations.

Id

. Fox Moraine claims that the

record contains no evidence of complaints.

Id

. Fox Moraine also takes issue with Mr.

Werderich’s comment to take the siting application “on its face”.

Id

. Fox Moraine argues as Mr.

Werderich is an attorney this statement was an attempt to prejudice other members of the

council.

Id

. Fox Moraine maintains that Mr. Werderich’s admonition along with comments

made by Mr. Munns and Mr. Munns’ vote to disapprove siting “is disturbing and throws the

entire decision making process into question.” FMBr. at 40-41.

Fox Moraine argues that Mr. Plocher also relied on evidence not in the record to make his

decision. FMBr. at 41. Fox Moraine opines that Mr. Plocher’s statements regarding his brother

and the statement about the landfill leaking were not supported by the record.

Id

.

Resolutions.

Fox Moraine notes that Mr. Roth had prepared two different resolutions,

one of which was a denial with conditions. FMBr. at 41-42. Fox Moraine further notes that the

Board has frequently held that conditions attached to a denial are a nullity. However in this case,

Fox Moraine believes the conditions are relevant. FMBr. at 42. Fox Moraine believes that the

conditions help to demonstrate the tainted nature of the decisionmaking process and that

Yorkville understood that the manifest weight of the evidence showed approval was appropriate.

Id

. Fox Moraine argues that the imposition of conditions on the denial left Yorkville with no

---

43

rationale to support the denial.

Id

. The suggested conditions included conditions not allowed by

law and resulted in a motion to allow the attorney to draft a resolution including only those

which were legal.

Id

. The final resolution included some but not all the conditions proposed by

the aldermen. FMBr. at 43.

Fox Moraine argues that the final resolution was not before Yorkville at the time the

council voted on the resolution. FMBr. at 43. Fox Moraine maintains that the invoice from the

Wildman firm substantiates that the resolution was prepared after the council meeting.

Id

. The

invoice indicates that work was performed as late as May 29, 2007, the decision deadline.

Id

.

Fox Moraine argues that the resolution was improperly back dated and this is further proof of

Ms. Burd’s deception and bad faith. FMBr. at 43-44.

Fox Moraine concedes that the mayor is not necessarily a decisionmaker, but that the

Board has considered the actions of a mayor in ruling on fundamental fairness. FMBr. at 44,

citing Concerned Citizens for a Better Environment v. City of Havana and Southwest Energy

Corp., PCB 94-44 (May 19, 1994). The Board found the proceedings fundamentally unfair

noting that the actions of the mayor showed bias.

Id

. Fox Moraine argues that the Board has

recognized the important role the mayor plays in the siting process. FMBr. at 44.

Fox Moraine argues that Resolution 2007-36, as that resolution was signed and presented

to Fox Moraine, was never before the council for a vote. FMBr. at 44. Fox Moraine claims that

the resolution represents the final decision of the Wildman law firm rather than the council and

the council improperly delegated authority to Mr. Roth to develop conditions.

Id

. Fox Moraine

argues that this delegation renders the proceeding fundamentally unfair.

Id

.

Fox Moraine next argues that the four draft resolutions were presented at hearing before

the Board and no one has identified which of the draft resolutions was before the council for a

vote; although one of the four is Resolution 2007-36. FMBr. at 44-45. Because of this, Fox

Moraine argues that ultimately determining what Yorkville decided is difficult and clearly

Yorkville did not determine the contents of Resolution 2007-36. FMBr. at 45. Fox Moraine

asserts that this violates Section 39.2(e) of the Act (415 ILCS 5/39.2(e) (2008)) and the

application should be deemed approved by operation of law.

Id

.

Fox Moraine maintains that there was never a consensus on which siting criteria were not

met. FMBr. at 45. Fox Moraine notes that Resolution 2007-36 indicates that criteria (i), (ii),

(iii), (v), (vi), (viii), (ix), and (x) were not met with the reference to criterion (x) being shorthand

for previous operating experience.

Id

. However, Fox Moraine argues that a review of the

transcript reveals no consensus on the criteria.

Id

. Fox Moraine maintains that not all the

aldermen spoke on each criterion and even those who did were at times equivocal and even

contradictory.

Id

.

Fox Moraine also argues that the criterion ix regulated recharge, was not applicable in

this case and if Yorkville maintains that Resolution 2007-36 represents the will of the council,

then the vote demonstrates bias. FMBr. at 46.

---

44

Fox Moraine asserts that Resolution 2007-36 violates Section 39.2(e) of the Act (415

ILCS 5/39.2(e) (2008)) because there is no reasoning for the decision. FMBr. at 46. Fox

Moraine argues that the record provides no reason for denial and Yorkville settled for a cursory

conclusion that the criteria were not met. FMBr. at 46-47.

Yorkville’s Arguments

Yorkville asserts that in reviewing a local siting decision the Board is to consider “the

fundamental fairness of the

procedures

used” by the local decisionmaker. YBr. at 15, emphasis

in the original. In a local siting proceeding, Yorkville notes that fundamental fairness

incorporates only minimal standards of procedural due process, like the right to be heard, the

right to cross-examine witnesses, and the right to impartial rulings on evidence. YBr. at 15,

citing Peoria Disposal Co. v. PCB, 385 Ill. App. 3d 781, 797, 896 N.E.2d 460, 475 (3rd Dist.

2008); Land & Lakes Co. v. PCB, 319 Ill. App. 3d at48, 743 N.E.2d at 193; E &E Hauling, 107

Ill. 2d at 42, 481 N.E.2d at 667-68; Waste Management of Illinois, Inc. v. PCB, 175 Ill. App. 3d

at 1040, 530 N.E.2d at 695.

Yorkville argues that courts have recognized that the local decisionmaker’s role in the

process is both quasi-legislative and quasi-adjudicative and the courts have recognized that the

local decisionmaker is not held to the same standard of impartiality as a judge. YBr. at 15-16,

citing Land & Lakes, 319 Ill. App. 3d at 47, 50, 743 N.E.2d at 193, 195. Yorkville points out

that the legislature amended the Act to provide that a local decisionmaker who expresses

publicly an opinion on an issue related to siting is not precluded from voting on the application.

YBr. at 16; 415 ILCS 5/39.2(d) (2008). Yorkville claims this confirms that even though the

siting process more closely resembles an adjudicatory proceeding than a legislative one, the local

decisionmaker is not held to the same standards as a judicial body. YBr. at 16, citing Southwest

Energy Corp. 275 Ill. App. 3d at 91, 655 N.E.2d at 309.

Yorkville maintains that Fox Moraine would have the Board consider more than just the

procedures used by Yorkville in evaluating the application. YBr. at 16. Yorkville argues that

Fox Moraine would have the Board consider the possible effect of “every alleged comment made

by the public, even before the application was filed, that Fox Moraine considers to be hostile,

strident, or rude.”

Id

. Yorkville opines that for the Board to consider such things “would have

the Board adopt a role that is not authorized by the siting statute and that is beyond the review

the Board has traditionally applied.”

Id

.

Yorkville argues that over 20 public hearings were held and the mayor and council

members, including those running for office attended almost all of the hearings. YBr. at 3.

Yorkville states that the hearing generated approximately 125 hours of testimony and that the

record totals almost 20,000 pages. YBr. at 2. Yorkville asserts that complicating the process

was the decision by Fox Moraine to file the siting application during a time when an election

would be held.

Id

. Yorkville maintains that Fox Moraine seeks to “profit” from filing the

application at this time by claiming “this confluence of events resulted in ‘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.’” YBr. at 2-3.

---

45

Alleged Bias of Council Members

Waiver.

Yorkville argues that by not raising issues of bias as to Mr. Leslie, Mr. Munns,

Mr. Plocher, Mr. Werderich, and Ms. Sutcliff, Fox Moraine has waived the argument. YBr. at 4.

Yorkville notes that seven aldermen voted against siting with only Mr. Besco voting for siting

and Ms. Burd, as mayor, not voting. YBr. at 4. Yorkville contends that Fox Moraine claims that

the mayor and six of eight aldermen were biased against Fox Moraine.

Id

. Yorkville notes that

Fox Moraine does not argue that the bias was discovered too late to object to the aldermen voting

on the siting application. YBr. at 5. Yorkville asserts that the evidence is undisputed that Fox

Moraine believed several council members were biased throughout the landfill hearings and in

fact Mr. Hamman testified that six weeks before the vote he believed Mr. Leslie, Mr. Munns, Mr.

Plocher, Mr. Werderich and Ms. Sutcliff were biased. YBr. at 5, citing 4/23Tr. at 15, 18.

Further, Yorkville notes that Mr. Hamman shared his view with Mr. Murphy and Mr. Burnham,

who agreed with him. YBr. at 5, citing 4/22Tr. at 168, 218-219, 234-235; 4/23Tr. at 16-17.

Yorkville concedes that Fox Moraine filed a motion to disqualify Ms. Burd and Ms.

Spears, and Yorkville notes Fox Moraine indicated the failure to bring the motion could result in

waiver of the issue. YBr. at 5, citing C08104-5. Yorkville asserts that Fox Moraine made no

other objections to any other council member until raising the issue before the Board. YBr. at 5-

6. Yorkville argues that the law on waiver of unfairness and bias allegations in landfill siting

proceedings is well settled that if a party believes the decisionmaker is biased, the party must

raise the issue promptly at hearing. YBr. at 6. Yorkville notes that the Illinois Supreme Court

held that allowing a party to sit on a belief of bias without promptly raising the issue would be

improper.

Id,

citing E &E Hauling, 107 Ill. 2d at 38-39, 481 N.E.2d at 666-67,

see also

Peoria

Disposal, 385 Ill. App. 3d at 798, 896 N.E.2d at 474 (3rd Dist. 2008); Waste Management, 175

Ill. App. 3d at 1039-40, 530 N.E.2d at 695; A.R.F. Landfill, Inc. v. PCB, 174 Ill. App. 3d 82, 88-

89, 528 N.E.2d 390, 394 (2nd Dist. 1988); Land and Lakes Co. v. Village of Romeoville

, PCB

92-25 (June 4, 1992),

rev’d on other grounds

, 245 Ill. App. 3d 631, 616 N.E.2d 349 (3rd Dist.

1993). YBr. at 6-7.

Yorkville argues that Peoria Disposal is particularly applicable as in that case the

applicant learned the day the county board voted on the application that two members were also

members of the Sierra Club, a group opposing siting. YBr. at 7. Yorkville points out that on

appeal the applicant argued that the Board’s decision that the proceeding was fundamentally fair

should be reversed as the county board members should have been disqualified.

Id

. Yorkville

notes that the appellate court disagreed, finding that even though the alleged bias was not

discovered until the day of the vote, the applicant could have objected before the vote was taken

and the appellate court agreed that the applicant waived the right to raise bias.

Id,

citing Peoria

Disposal, 385 Ill. App. 3d at 799, 896 N.E.2d at 476.

Yorkville argues that Waste Management is also instructive in that the applicant claimed

eight members of the county board were biased and should have been disqualified. YBr. at 7.

However, Yorkville notes that the motion to disqualify at the local siting proceedings alleged

only four were biased and the court held that by not alleging bias or prejudice as to the remaining

four members, the applicant waived the claims and the issue could not be raised on appeal. YBr.

at 7-8, citing Waste Management, 175 Ill. App. 3d 1039-40, 530 N.E.2d at 695.

---

46

Yorkville claims that Fox Moraine believed that Mr. Leslie, Mr. Munns, Mr. Plocher, Mr.

Werderich and Ms. Sutcliff were biased well before a vote was taken by Yorkville. YBr. at 8.

Furthermore, Yorkville notes that Fox Moraine was aware of the potential that the issue could be

waived and Yorkville argues that Fox Moraine was right.

Id

. Yorkville asserts that Fox Moraine

has waived claims of bias and prejudice and the Board should not consider the claims.

Id

.

Yorkville acknowledges that a motion to disqualify Ms. Burd and Ms. Spears was filed

by Fox Moraine, which the hearing officer made no recommendation on as no evidence had been

adduced. YBr. at 8, citing C08317-19. Yorkville argues that a litigant must support contentions

that are made and failure to do so waives the argument. YBr. at 8, citing Waste Management of

Illinois v. PCB, 160 Ill. App. 3d 434,443, 513 N.E.2d 592, 598 (2nd Dist. 1987); Wolfe v.

Menard, Inc., 364 Ill. App. 3d 338, 348, 846 N.E.2d 605, 613 (2nd Dist. 2006); People v.

Rockey, 322 Ill. App. 3d 832, 839, 752 N.E.2d 576, 583 (2nd Dist. 2001). Yorkville asserts that

the requirement of factual and legal support is particularly critical with a claim of bias or

prejudice because if any claim were enough to disqualify all litigants would claim bias when a

ruling is made against them. YBr. at 9.

Yorkville maintains that Fox Moraine’s motion seeking to disqualify Ms. Burd and Ms.

Spears did no more than raise conclusory allegations of bias without factual support and thus the

motion was insufficient. YBr. at 9. Yorkville urges the Board not to consider Fox Moraine’s

claims that Ms. Burd and Ms. Spears were biased against Fox Moraine.

Id

.

Ms. Burd.

Yorkville asserts that Fox Moraine’s theory that Ms. Burd was responsible

for a “plot” of prejudgment and collusion is just a theory and because there is no factual support,

the theory fails. YBr. at 17. Yorkville claims that Fox Moraine speculations include an attempt

to link a filing in a different case before the Board to the “plot”; however Yorkville maintains

that the statements made in the other case are not related to this case.

Id

. Yorkville opines that

Fox Moraine appears to be arguing the doctrine of judicial estoppel and that doctrine is not

applicable. YBr. at 18-19. Yorkville argues that the statements made by Yorkville’s city

administrator and the statements made by Ms. Burd are not inconsistent.

Id

.

Yorkville asserts that the record is clear that Ms. Burd was not an anti-landfill candidate

and that Ms. Burd did not discuss the proposed landfill at any of her appearances. YBr. at 19.

Furthermore, Yorkville contends that Ms. Burd refused to discuss the landfill siting with

Yorkville voters even though the refusal made some voters angry.

Id,

citing 4/21Tr. at 182-187,

188-189. Yorkville also claims that Ms. Burd’s statements to the

Beacon News

also disprove

Fox Moraine’s theory as Ms. Burd did not answer the question but rather avoided the question.

YBr. at 20.

Yorkville claims that Fox Moraine misstates the record concerning several statements of

Ms. Burd. YBr. at 20-21. For example, Yorkville argues that Ms. Burd testified that Mr.

Milliron had been threatened with eviction from a proceeding one time after she became mayor.

YBr. at 20. Another example is that Ms. Burd knew that Mr. Werderich was involved with

FOGY, but simply did not know that he had helped found the organization. YBr. at 21. Finally

---

47

Yorkville notes that the Board’s hearing officer found Ms. Burd to be a credible witness. YBr. at

20.

Ms. Spears.

Yorkville asserts that Ms. Spears’ statement that she did not definitely

know that when voting on annexation Fox Moraine would be filing a siting application is

credible, as the record demonstrates that Fox Moraine did not definitely know an application

would be filed. YBr. at 21. Yorkville points out that Fox Moraine’s annexation attorney told the

council on September 26, 2006, that Fox Moraine was not sure of a particular use and that the

Hamman operation would continue for now. YBR. at 21-22, citing FM Exh. 2 at 156-157.

Yorkville contends then that how can Fox Moraine assert that the “cards were on the table” after

the annexation vote. YBr. at 22.

As to Ms. Spears’ statements in the

Beacon News

, Yorkville argues that Ms. Spears

stated she had been misquoted. YBr. at 22-23. Yorkville disagrees that Ms. Spears was a “vocal

opponent” of siting in that like other candidates, Ms. Spears was “diligent” in not talking about

the landfill. YBr. at 23. Yorkville notes that the council members were given a card, indicating

that the council members could not discuss the landfill siting application and explaining the

landfill siting process.

Id,

citing 4/21Tr. at 132-133, 136, 130; 4/22Tr. at 89; 4/23Tr. at 37.

Yorkville contends that the remainder of Fox Moraine’s claims regarding Ms. Spears is

that by voting against annexation, host agreement, and road vacation, Ms. Spears was biased.

YBr. at 23. Yorkville asserts that Fox Moraine “sees unfairness” if an elected official examines

an issue on the merits and then votes as the official deems appropriate. YBR. at 24.

Yorkville further claims that there was an incidence of fundamental unfairness. YBr. at

24. Yorkville contends that Mr. Hamman offered to take Ms. Spears to a landfill in Will County

and this was an obvious attempt to influence Ms. Spears.

Id

.

Mr. Werderich.

Yorkville concedes that Mr. Werderich attended council meetings and

decided to run for city council because he did not approve of the council’s handling of the

annexation process. YBr. at 24. Yorkville also concedes that Mr. Werderich was a member of

FOGY; however, he resigned when he decided to run for city council.

Id

. Yorkville claims that

Fox Moraine’s arguments that Mr. Werderich prejudged the application are based on comments

made two months before the application was filed and six months before he was elected to the

council.

Id

.

Yorkville argues that local decisionmakers are presumed to be objective and capable of

impartially judging a landfill application and to overcome that presumption a decisionmaker

must have taken a public position or expressed strong views. YBr. at 25, citing A.R.F. Landfill,

174 Ill. App. 3d at 89, 528 N.E.2d at 394. Yorkville claims that other than a comment to the

Beacon News

, Mr. Werderich’s comments concerned annexation and ceased when he decided to

run for office. YBr. at 25. Yorkville argues that if strong statements by an elected official do not

overcome the presumption, then statements made by a town resident certainly do not overcome

the presumption.

Id

Yorkville notes that Mr. Werderich testified that his comments to the

Beacon News

were taken out of context. YBr. at 25, citing 4/21Tr. at 318-319.

---

48

Ms. Sutcliff.

Yorkville notes that Ms. Sutcliff decided to run for office because she

believed that the city council was trying to rush approval of the annexation. Ms. Sutcliff was a

political newcomer, and established a web site. YBr. at 25. Yorkville asserts that the web site

merely summarized what other people were saying at public meetings and Fox Moraine does not

claim the statements are by Ms. Sutcliff. YBr. at 26. Yorkville contends that Fox Moraine is

attempting to find bias where no evidence of bias exists.

Id

.

Yorkville claims that Ms. Sutcliff was informed that she should not discuss the landfill

siting and she removed anything from her website that referenced either annexation or the

proposed landfill. YBr. at 26. Yorkville notes that Ms. Sutcliff informed residents, when

campaigning, that she could not talk about the landfill.

Id,

citing 4/21Tr. at 274-276.

Yorkville argues that the statements made by Ms. Sutcliff were concerning annexation,

not the landfill. YBr. at 26. According to Yorkville, this includes statements that she would

have voted no on annexation, but Ms. Sutcliff never gave an indication on how she would vote

on the siting application.

Id

. Yorkville argues that Fox Moraine misrepresents the record as

there was not a “link” to FOGY’s web site, merely the address. YBr. at 27.

Mr. Plocher.

Yorkville argues that like Mr. Werderich, Fox Moraine sees bias in

statements made by Mr. Plocher at annexation hearings which took place two months before the

landfill siting application was filed. YBr. at 27. Yorkville reiterates that local decisionmakers

are presumed to be objective and Mr. Plocher’s statements are innocuous and do not overcome

the presumption. YBr. at 27-28. As with others, Mr. Plocher believed he had been misquoted by

the

Beacon News

. YBr. at 28. Yorkville contends that Mr. Plocher’s statements about his

brother also do not indicate bias or prejudgment and Yorkville notes that in Peoria Disposal, the

court found that consideration of personal experience did not show prejudgment.

Id,

citing

Peoria Disposal

, 385 Ill. App. 3d at 799, 896 N.E.2d at 476.

Election Campaign

Yorkville argues that Fox Moraine “makes much” of the allegations of boisterous landfill

opponents appearing at hearings, the clamor of opponents that influenced the council members,

and the mayor’s practice to let anyone talk at any time. YBr. at 10. Yorkville claims that public

participation is a clear purpose of the local hearing requirements and throughout Fox Moraine’s

brief, Fox Moraine “disparages and disregards the public’s right to be heard.” YBr. at 10.

Yorkville asserts that a landfill siting proceeding is always controversial and Fox Moraine

generated significant additional interest by filing the application four and a half months before a

municipal election. YBr. at 10-11. Yorkville maintains that Fox Moraine knew the election was

occurring and that the mayor and four council seats would be up for election during the

campaigns. YBr. at 11, citing 4/23Tr. at 11-12.

Yorkville takes issue with Fox Moraine’s statement at the close of siting hearings that

Fox Moraine had taken the high road. YBr. at 11. Yorkville asserts that Mr. Parrish was

threatened by Mr. Moose and did not attend the siting hearings; although Mr. Parrish was an

outspoken opponent to annexation. YBr. at 11-12, citing 4/21Tr. at 161, 163-164, 166-167.

Yorkville notes that Mr. Parrish became so appalled by Mr. Moose’s tactics that he stopped

---

49

attending the hearings. YBr. at 12, citing 4/21 at 170. Yorkville opines that if Fox Moraine

intended to silence an opponent, Fox Moraine succeeded. YBr. at 12.

Yorkville asserts that Fox Moraine attempted to intimidate the public by threats of

physical harm. YBr. at 12. Yorkville maintains that Fox Moraine’s contempt for Yorkville

residents who opposed siting is “evident in [Mr.] Moose’s condescending depiction” of the

opponents.

Id

. Yorkville claims that Fox Moraine is seeking to profit from the atmosphere Fox

Moraine created by filing the application on December 1, 2006.

Id

. Yorkville argues that

nonetheless, Fox Moraine received a fair hearing.

Id

.

Public Hearing on Siting

Length of Hearings.

Yorkville takes issue with Fox Moraine’s claim that opponents and

Yorkville were responsible for the public hearings extending such that the public comment

period ended one week before the decision deadline. YBr. at 13. Yorkville notes the Fox

Moraine “calculatedly filed” the application on December 1, 2006, so that the hearings would

take place during an election campaign.

Id

. Yorkville asserts that Fox Moraine also fails to

explain how the siting process could have been completed before the seating of the new council

on May 8, 2007, and Fox Moraine fails to explain how the length of the process caused Fox

Moraine prejudice.

Id

.

Yorkville argues that statutorily, Fox Moraine knew that the earliest the hearing could

commence was March 1, 2007 and the hearing began on March 7, 2007. YBr. at 13. Yorkville

claims that Fox Moraine “monopolized” the first 13 plus days of hearing with presentations from

eight witnesses. YBr. at 13-14. Yorkville further argues that by statute a 30 day public comment

period after the close of hearing is required, so out of the 180 days Yorkville is allowed to make

a decision, 120 days are not available for hearing. YBr. at 14. Yorkville asserts that because of

the lengthy presentations by Fox Moraine, Yorkville should be commended for completing the

statutorily required proceedings in 180 days.

Id

. Yorkville further asserts that only Fox Moraine

would profit from a decision not being made in 180 days as the application would be deemed

accepted.

Id

.

Fox Moraine Full and Complete Opportunity.

Yorkville maintains that Fox Moraine

had a full and complete opportunity to present evidence in support of the application. YBr. at 28.

Yorkville argues that the examples of problems at the annexation and landfill hearings amount to

nothing more than a few, occasional shouts from the public and those outbursts happen at all

kinds of city council meetings.

Id

. Yorkville contends that Fox Moraine misjudged or was

simply unaware of the size of the public opposition as FOGY consisted of only five members

and Mr. Milliron was not a member. YBr. at 28-29.

Yorkville argues that Fox Moraine “wildly exaggerates the tone of the landfill hearings”

and that several Yorkville residents commented that the hearings were orderly, controlled, and

well run. YBr. at 29,

see e.g.

4/21Tr. at 144-145. Yorkville argues that no one other than Fox

Moraine’s “paid witnesses” testified that the siting hearings were disorderly, unruly, or hostile.

YBr. at 30.

---

50

Yorkville maintains that whether the public opposition would qualify as “strong” is not

relevant. YBr. at 30. Yorkville asserts that the case law is clear that the existence of strong

public opposition does not render landfill siting proceedings fundamentally unfair as long as the

applicant is provided with a full opportunity to present the support for the application.

Id,

citing

Peoria Disposal, 385 Ill. App. 3d at 798, 896 N.E.2d at 476; Waste Management 175 Ill. App. 3d

at 1043, 530 N.E.2d at 697-98.

Yorkville argues that the 20 plus days of hearings, 125 hours of hearing testimony and

20,000 page record demonstrate that Fox Moraine was afforded an ample opportunity to present

evidence in support of the application. YBr. at 30. Furthermore, Yorkville contends that Fox

Moraine’s employees agreed that Fox Moraine had sufficient opportunity to present evidence

regarding the application.

Id

. Yorkville maintains that this alone shows the proceedings were

fundamentally fair.

Id

.

Yorkville Deliberations

Mayor Presiding Over Council Meeting.

Yorkville asserts that there was nothing

improper in Ms. Burd, as mayor, presiding over the city council meeting. YBr. at 14. Yorkville

argues that the landfill siting hearings had ended and Mr. Price’s work was complete with the

submission of his report on May 18, 2007.

Id,

citing C17191. Yorkville maintains that Mr.

Clark’s report had also been filed and no provisions were made for him to attend the council

meeting. YBr. at 15. Furthermore, Yorkville claims that Fox Moraine did not identify any

provisions which required Mr. Clark’s presence.

Id

.

Decision Based on the Record.

Yorkville takes issue with Fox Moraine’s claim that

“several” council members relied on information outside the record and then only names two of

the council members. YBr. at 32. Yorkville argues that Fox Moraine relies on Ms. Burd making

a statement about council members doing research and that must necessarily mean research

outside the record.

Id

. However, Yorkville contends there is no support in the record that the

research was any more than researching the substantial record before the council on siting.

Id

.

Yorkville contends that, contrary to Fox Moraine’s claims that Ms. Spears statement about

capacity is not supported by the record, Fox Moraine’s own application indicates that landfill

capacity will be exhausted in 2016 or 2017 (C01000) which is 10 or 11 years from when the

application was filed.

Id

. Furthermore, according to Yorkville, the application references IEPA

Landfill Capacity Reports.

Id,

citing C01013-1014. Yorkville also points to testimony that

underutilized landfill capacity is available to meet the disposal needs of the region. YBr. at 33,

citing C14321, 14324, 14344.

Yorkville argues that the record also supports Ms. Spears’ statements regarding technical

standards for leachate storage tanks and a double liner leak detection system. YBr. at 33, citing

C15919-15920, 16819, 16824-16825, 18456, 19555-19557. And contrary to Fox Moraine’s

claims that the record does not discuss safe levels for vinyl chloride, Yorkville contends that

there are numerous references in the record to vinyl chloride being detected at unsafe levels near

landfills.

Id,

citing C10972, 10976-10978, 11049, 15781, 15785, 15787, 19542-19545. Finally,

Yorkville argues that Ms. Spears did not misunderstand the requirements of criterion vi. YBr. at

34.

---

51

As to Mr. Werderich, Yorkville argues that Fox Moraine is again incorrect as the record

contains numerous complaints regarding odor and litter, registered with different government

agencies, concerning Mr. Hamman’s operations. YBr. at 34, citing C07822-7849, 13305-13306,

14461-14462, 14496-14497, 15100-15102, 15107, 16408, 16441-16484, 16517-16540, 16658-

16663, 16669, 16886. In addition, Mr. Moose testified as to an odor issue and the record

contains evidence of a settlement agreement after operational violations were alleged against the

operation. YBr. at 35, citing C10772-10773, 11394, 18557, 1634-16340, 16523-16526, 16658-

16663.

Sufficient Time to Review the Record.

Yorkville contends that Fox Moraine “dumped”

a 1,319 page post-hearing submittal into the record on the last day of the public comment period

“in an effort to postpone the proceedings and push the vote beyond the 180-day deadline.” YBr.

at 35. Yorkville asserts that Fox Moraine could have submitted some if not all of the information

sooner and now Fox Moraine complains of “a problem” Fox Moraine “deliberately created” by

waiting until the last day to file the comment. YBr. at 36. Yorkville contends that in any event,

the members of the siting authority need not have reviewed every page of the record as long as

the record was available to them.

Id,

citing Waste Management of Illinois v. PCB, 123 Ill. App.

3d 1075, 1080-81, 463 N.E.2d 969, 974 (2nd Dist. 1984).

Written Decision was Proper.

Yorkville asserts that the decision of the local authority

must be in writing and need only indicate which of the criteria have or have not been met. YBr.

at 37, citing E & E Hauling, Inc. v. PCB, 116 Ill. App. 3d 586, 616, 451 N.E.2d 555, 577-78 (2nd

Dist. 1983),

affd on other grounds,

107 Ill. 2d 33, 481 N.E.2d 664. Yorkville argues that the

local authority need not vote on individual criteria, as the Board reviews the local decision on all

of the criteria. YBr. at 37, citing City of Rockford v. Winnebago County Board, PCB 88-107

(Nov. 17, 1988). Furthermore, Yorkville argues that the decision need not include specific

findings of fact or law on each criterion nor must the city council deliberate on each criterion as

long as the members have had the opportunity to review the record before voting. YBr. at 37-38,

citing Clutts v. Beasley, 185 Ill. App. 3d 543, 544, 541 N.E.2d 844, 845-46 (5th Dist. 1989);

Slates v. Illinois Landfills, Inc., PCB 93-106, slip op. at 17-18 (Sept. 23, 1993);

see also

Waste

Management, 123 Ill. App. 3d at 1080-81, 463 N.E.2d at 974. Yorkville contends that a siting

authority may meet the requirements of Section 39.2(e) of the Act (415 ILCS 5/39.2(e) (2008) in

several different ways including adopting an unofficial transcript of deliberations as the written

decision. YBr. at 38, citing Peoria Disposal

, 385 Ill. App. 3d at 796, 896 N.E.2d at 474.

Yorkville asserts that the record was available to the city council before the vote and the

City’s written resolution indicates that Fox Moraine failed to meet seven of the ten criteria. YBr.

at 38. Yorkville notes that Fox Moraine cites to no cases to support Fox Moraine’s argument

that a finding of fact or statement of reason for denial was not provided as numerous courts have

rejected similar arguments.

Id,

citing E & E Hauling, Inc., 116 Ill. App. 3d at 616, 451 N.E.2d at

577-78; Clutts, 185 Ill. App. 3d at 544, 541 N.E.2d at 845-46; Slates, PCB 93-106, slip op. at 17-

18 (Sept. 23, 1993); City of Rockford, PCB No. 88-107, slip op. at 6 (Nov. 17, 1988).

Yorkville contends that Resolution 2007-36 clearly indicates that Fox Moraine’s

application did not meet criteria (i), (ii), (iii), (v), (vi), (viii), and the tenth [previous operating

---

52

experience]. YBr. at 39, citing C18640-18643. The resolution attaches the transcripts of the

deliberations as well as the reports prepared by Mr. Clark and Mr. Price.

Id

. Yorkville

maintains that the written decision conforms to Section 39.2(e) of the Act (415 ILCS 5/39.2(e)

(2008) and Fox Moraine has no legal or factual basis to argue otherwise. YBr. at 39.

Yorkville asserts that the city council need not have the final form of the resolution

before them when voting. YBr. at 39. Yorkville maintains that the city council could vote and

then prepare a written memorial of the decision.

Id,

citing Slates, PCB 93-106, slip op. at 3, 17

and Peoria Disposal Co. v. Peoria County Board, PCB 06-184 (June 21, 2007). Furthermore,

Yorkville contends that the multiple resolutions did not lead to fundamental unfairness as this

procedure nearly mirrors the facts of Slates. YBr. at 40.

Roth Report.

Yorkville asserts that no fundamental unfairness resulted from the hiring

of, or work done by, the Wildman law firm. YBr. at 40-41. Yorkville first contends that Fox

Moraine has no standing to challenge the city council’s hiring of a city attorney . YBr. at 41.

Secondly, Yorkville maintains that the invoice prepared by the Wildman firm does not show

prejudgment but rather shows that the city attorneys undertook a thorough review of the landfill

siting criteria and fundamental fairness issues.

Id

. Yorkville claims that the draft resolutions

included two resolutions to approve siting and this too demonstrates that there was no

prejudgment. YBR. at 42. Yorkville claims that Ms. Burd explained at hearing that the

Wildman firm was hired for work on the landfill siting and that there were two separate

engagements. YBr. at 41 f.n. 19.

Friends of Greater Yorkville

Amicus Curiae

Arguments

FOGY submitted an

amicus curiae

brief to the Board in support of Yorkville’s decision

to reject the landfill siting application. FOGY asserts that the Board does not have the power to

review the actions of Yorkville for anything other than procedural sufficiency. FOGYBr. at 1.

FOGY maintains that if the Board were to examine the substance of the comments made and

actions taken by the citizens of Yorkville in opposition to the landfill, the Board would be

considering substantive due process, which is beyond the scope of the statute. FOGYBr. at 1-2.

Therefore, FOGY urges that the Board should base its review on the procedures of the hearings

and find that the decision to reject the siting application was not against the manifest weight of

the evidence. FOGYBr. at 12.

FOGY continues that Section 40.1(a) of the Act, 415 ILCS 5/40.1(a), instructs the Board

to consider “‘the fundamental fairness of the

procedures

used by . . . the governing body of the

municipality in making its decision.’” FOGYBr. at 1 quoting Act, emphasis in brief. FOGY

argues that the plain language of that section restricts the Board to considering procedures only

and not the substance of the hearing. FOGYBr. at 2. FOGY supports this assertion by citing to

Residents Against a Polluted Environment v. PCB, 293 Ill. App. 3d 219, 222-23, 687 N.E.2d

552, 554-555 (3rd Dist. 1997), where Board refused to allow opponents of a landfill to present

evidence that the applicant was involved in helping La Salle County amend the Solid Waste

Management Plan before the applicant applied for landfill siting. FOGYBr. at 4, citing

Residents Against, 293 Ill. App. 3d at 222-23, 687 N.E.2d at 554-555. FOGY argues that First

Amendment issues are “far more unwieldy and complex than the amendment of the solid waste

---

53

management plan in Residents . . . [and so] this Board should not attempt to review citizens’

public comments made at the annexation hearings.”

Id

.

FOGY asserts that the public comments themselves are substantive and cannot be

evaluated; however, the procedures used in obtaining the comments can be. FOGYBr. at 5.

FOGY relies on Waste Management, 123 Ill. App. 3d at 1081, 463 N.E.2d at 974, to argue that

when public officials recognize and act on strong public opposition, they do not inherently make

the siting process fundamentally unfair.

Id

. FOGY asserts that the converse is also true: since

Section 39.2 of the Act requires that public hearings be held and written comments be accepted,

the expression of citizens’ opinions to public officials also does not make the process unfair.

FOGYBr. at 5. FOGY contends that this statutory right to public comment cannot deprive Fox

Moraine of procedural due process. FOGYBr. at 6. FOGY further contends that same right also

“distinguishes the siting application process from a more traditional judicial or adjudicatory

proceeding,”

id,

further supporting the idea that Yorkville had to consider its public comments

on the landfill. FOGY maintains that considering statutorily-allowed comments does not render

the process fundamentally unfair. FOGYBr. at 7.

FOGY opines that the public hearings also give citizens a place to exercise their First

Amendment rights. FOGYBr. at 8. FOGY asserts that citizens should be allowed both to elect

the representatives that they choose and to voice their opinions to those representatives on issues

at hand. FOGYBr. at 9. FOGY urges the Board to affirm citizens’ rights to express those

opinions or the Board will encourage other landfill owners to schedule siting applications at the

same time as local elections so that they can ask the Board to overturn the decision because of

the negative influence of the election.

Id

. FOGY argues that Fox Moraine also had the chance

to exercise its First Amendment rights and that Fox Moraine chose to submit its siting

application close to the election, when citizens were more likely to discuss the application

publicly does not violate the procedures. FOGYBr. at 10. FOGY reiterates the argument that

the Board cannot consider the political action of citizens in the Board’s consideration of the

fairness of the procedures.

Id

. citing Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964

F.2d 32, 45-47 (1st Cir. 1992). FOGY maintains that attempting to do so would “seriously

embroil the Board in unpromising and unwarranted efforts to tailor the democratic process.”

FOGYBr. at 11. Finally, FOGY urged the Board to decide the issue on non-constitutional

grounds by finding for Yorkville by agreeing with the criteria that Yorkville cited for rejection of

the proposed landfill. FOGYBr. at 12.

Fox Moraine’s Reply

Waiver

Fox Moraine maintains that the right to challenge council members on the basis of bias

and prejudgment was not waived. Reply at 3. Fox Moraine notes that prior to the siting hearings

beginning, Fox Moraine filed a motion to disqualify Ms. Burd and Ms. Spears based largely on

“overtly hostile comments” made by Ms. Burd and Ms. Spears at prehearing meetings of the city

council dealing with ancillary issues such as annexation.

Id

. Fox Moraine asserts that at the

time the siting hearings began, Fox Moraine was unaware that Ms. Burd had organized a

movement to defeat the application, centered around her mayoral campaign.

Id

. Fox Moraine

---

54

claims that Fox Moraine was unaware of the interconnections between Ms. Burd, Mr. Werderich

and Ms. Sutcliff, the campaign committee and FOGY.

Id

. Fox Moraine maintains that this

information and the nature of Ms. Sutcliff’s web site were not known until discovery was

undertaken in this proceeding before the Board.

Id

.

Fox Moraine maintains that Yorkville’s argument is flawed because Yorkville misstates

the law in that a mere belief that a decisionmaker is biased is not sufficient; Fox Moraine argues

that actual knowledge is required. Reply at 4. Fox Moraine asserts the standard is clearly

enunciated in E & E Hauling where the Illinois Supreme Court indicated that an allegation of

disqualifying bias must be asserted promptly after “knowledge” of the alleged disqualification.

Reply at 4, citing E & E Hauling, 107 Ill. 2d at 38-39, 481 N.E.2d at 666 (emphasis in original).

Fox Moraine contends that both A.R.F Landfill (174 Ill. App. 3d 82, 528 N.E.2d 390) and Waste

Management, 175 Ill. App. 3d 1023, 530 N.E.2d 682, also require actual knowledge of

disqualifying bias as opposed to mere supposition for waiver to occur. Reply at 4.

Fox Moraine notes that at the time of the siting hearings, Mr. Werderich, Mr. Plocher and

Ms. Sutcliff had not even been elected to the city council. Reply at 5. Fox Moraine concedes

that after they were elected, Fox Moraine had concerns and suspicions about the impartiality of

Mr. Werderich, Mr. Plocher and Ms. Sutcliff.

Id

. Fox Moraine contends however, that absent

knowledge such as that Mr. Werderich was a founding member of FOGY, Fox Moraine’s

suspicions did not rise to actual knowledge of disqualifying bias.

Id

. Fox Moraine asserts that

this is particularly true as the depth of Ms. Burd’s opposition was not clear until discovery was

undertaken in the Board’s proceeding.

Id

. Fox Moraine claims that during discovery, Fox

Moraine learned: 1) that the Wildman law firm was contacted before Ms. Burd was sworn in as

mayor, and 2) the composition of Ms. Burd’s campaign committee, that included an individual

who testified as an expert for FOGY.

Id

. Fox Moraine agrees that had Fox Moraine known

these things prior to the vote on the application, Yorkville’s argument of waiver might be valid;

however the information came to light after the vote on the applications and after the appeal was

filed.

Id

.

Fox Moraine argues that all the cases cited by Yorkville, except Peoria Disposal were

decided prior to the 1993 amendments to the Act which added the following provision 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. 415 ILCS 5/39.2(e) (2008).

According to Fox Moraine, Mr. Hamman testified that he believed that a number of the

candidates were prejudiced based on the article in the

Beacon News

, but the statutory language

allows decisionmakers to make such statements. Reply at 5-6. Fox Moraine asserts that the

statements made in the

Beacon News

are not by themselves conclusive evidence of bias or

prejudgment; rather Fox Moraine relies on those statements as additional evidence of bias or

prejudgment. Reply at 6.

---

55

Fox Moraine argues that Peoria Disposal is distinguishable from this case in that the

applicant had actual knowledge of the disqualifying bias and an actual opportunity to object.

Reply at 6. Fox Moraine reasserts that Fox Moraine did not have actual knowledge and further,

Fox Moraine contends that there was no opportunity to object to Mr. Werderich, Mr. Plocher and

Ms. Sutcliff.

Id

. Fox Moraine notes that the three aldermen were not seated until the close of

public hearings and their first official participation was in the deliberations on May 23 and 24,

2007.

Id

. Fox Moraine claims that even if there had been actual knowledge of bias or

prejudgment, no procedural opportunity or mechanism for objecting was available on May 23

and 24, 2007. Reply at 6-7. Fox Moraine points out that the city attorney stated that no further

evidence or input from the applicant or the public would be allowed and the proceeding was

under council rules. Reply at 7, citing C18537, 18540. Fox Moraine notes that the court in

Peoria Disposal, after finding the argument had been waived elected to consider the argument on

the merits. Reply at 7. The court found that bias had not been established.

Id

.

Fox Moraine takes issue with Yorkville’s claim that the motion to disqualify Ms. Burd

and Ms. Spears lacked factual and legal support. Reply at 8. Fox Moraine asserts that even a

cursory review of the motion to disqualify establishes that the motion contains allegations with

citation to appropriate precedent.

Id

. Fox Moraine argues that the motion is also factually

specific, referencing communications.

Alleged Bias of Council Members

Fox Moraine responds to the arguments of both Yorkville and FOGY regarding the

language of the Act which allows the Board to determine that the “procedures” were

fundamentally fair. Reply at 13. Fox Moraine opines that this argument would seem to indicate

that if an ordinance is on the face fundamentally fair, the Board cannot inquire into whether the

ordinance was actually followed.

Id

. According to Fox Moraine, FOGY expands this argument

and asserts that the Board cannot limit the public’s exercise of free speech in these matters.

Reply at 14. Fox Moraine argues that the difficulty arises from the fact that the public does have

the right to express opinions, but the decisionmakers are expected to base their decisions on the

evidence.

Id

. Fox Moraine maintains that the public’s exercise of free speech does not render

the proceeding fundamentally unfair, rather the decisionmakers “succumbing to the public

clamor and giving up their role of adjudicator” that renders the proceedings fundamentally

unfair.

Id

.

Fox Moraine argues that FOGY’s reliance on Residents Against a Polluted Environment,

293 Ill. App. 3d 219, 687 N.E.2d 552, and Southwest Energy, 275 Ill. App. 3d 84, 655 N.E.2d

304, is misplaced. Reply at 14. In Land & Lakes, 319 Ill. App. 3d 41, 743 N.E.2d 188, the court

did consider whether pre-filing contacts could render the proceeding fundamentally unfair, thus

overruling Residents Against a Polluted Environment, 293 Ill. App. 3d 219, 687 N.E.2d 552.

Id

.

Fox Moraine further states that the reference to Southwest Energy, 275 Ill. App. 3d 84, 655

N.E.2d 304, allowing the decisionmaker to disregard the evidence and deny siting based on

constituents' desires is clearly dicta and not supported by any other case law.

Id

.

Fox Moraine argues that the more appropriate way to view “procedures” as used in

Section 40.1(a) of the Act (415 ILCS 5/40.1(a) (2008)) is to consider what actually occurred and

---

56

the entire decisionmaking process. Reply at 14. Fox Moraine claims that in Land & Lakes (319

Ill. App. 3d 41, 743 N.E.2d 188), the focus of the inquiry was whether the proceedings were fair

and in that context the procedures used were “fatally flawed and horribly unfair”.

Id

. Fox

Moraine contends that FOGY’s discussion of procedural fairness and substantive fairness is a

distinction without a difference.

Id

.

Fox Moraine maintains that the Yorkville brief offers a “cursory examination of tiny

snippets of evidence” for each council member to demonstrate that the council member acted

appropriately. Reply at 15. With Ms. Burd, Fox Moraine asserts that Yorkville attempts to

rehabilitate her though Fox Moraine impeached her testimony.

Id

. Fox Moraine notes that

Yorkville begins by referencing the statements made by the city administrator in another case

and noting that the statements do not trigger judicial estoppel.

Id

. Fox Moraine maintains that

judicial estoppel was not argued by Fox Moraine, but that the statements are a party admission

against interest that appear to directly contradict Ms. Burd’s insistence that she did not run as an

anti-landfill candidate.

Id

.

Fox Moraine also takes issue with Yorkville’s claim that the Board’s hearing officer

found Ms. Burd’s testimony credible. Reply at 15. Fox Moraine argues that the hearing officer

found no overt physical signs of lying but made no finding on the plausibility of Ms. Burd’s

statements.

Id

. One statement Fox Moraine finds particularly implausible is Ms. Burd’s

testimony that she would not allow FOGY members on her committee, yet Ron Parrish, a

founding member of FOGY was on the campaign committee. Reply at 16.

Fox Moraine argues that Yorkville’s defense of Ms. Spears regarding her lack of

knowledge about the potential landfill application at the annexation hearing is contradicted by

the fact that six months prior to annexation, the city attorney provided a confidential

memorandum to the council members explaining the annexation strategy and purpose. Reply at

16. Furthermore, Ms. Spears recalls meeting with Fox Moraine’s representatives, which

included a discussion of the landfill plan.

Id

. Fox Moraine asserts that a thorough review of Ms.

Spears’ testimony indicates that Ms. Spears “really had no memory of much of anything, which

is strangely at odds with her remarkable ability to remember minute details from thousands of

pages of unsworn anti-landfill material submitted by landfill opponents.”

Id

.

Fox Moraine concedes the point that Mr. Werderich resigned as a member of FOGY

when he announced his candidacy for aldermen; however, Fox Moraine asserts that this does not

explain his

pro bono

work to incorporate FOGY, as well as his campaign literature and

membership on Ms. Burd’s campaign committee with Mr. Milliron. Reply at 16-17. Fox

Moraine asserts that Mr. Werderich’s statement that he ran for aldermen because he did not like

the handling of the annexation “has, throughout the proceedings” been shorthand for opposition

to the landfill. Reply at 17.

Fox Moraine contends that Yorkville’s theory that Ms. Sutcliff’s web site was simply

relaying information is “utter nonsense” as the “reporting” was clearly editorial reporting. Reply

at 17. Fox Moraine asserts that by placing the material on the web site she acquired ownership

and urges the Board to examine the quotations from her web site.

Id

. Fox Moraine contends that

the fact that Ms. Sutcliff was promising to vote against annexation long after annexation

---

57

occurred demonstrates that annexation and the landfill proposal had become intertwined and

interchangeable.

Id

.

Timing of Application

Fox Moraine argues that the timing of the filing of the application is irrelevant to

considerations of fundamental fairness and Yorkville’s argument that Fox Moraine’s filing of the

application during an election cycle invited or created many of the problems is not valid. Reply

at 9-10. Fox Moraine maintains that the application was filed as soon as the application was

completed and ready to file and Fox Moraine’s right to an impartial decision was not abridged by

the fact that an election campaign was occurring during the hearings. Reply at 10. Fox Moraine

also argues that the right to an impartial decision was not abridged by “loud public opposition”.

Id

.

Fox Moraine maintains that public participation is a critical element of the process and

some public expression is emotional rather than based on facts; however, in this case, Fox

Moraine argues that the opposition went beyond emotional and became disruptive and

intimidating. Reply at 10. Fox Moraine argues that the point is not that there is public

opposition, but rather the impact on the decisionmakers and potential impact on their votes.

Id

.

Fox Moraine challenges the argument by Yorkville that Fox Moraine’s representatives

allegedly intimidated some anti-landfill protestors, noting that Mr. Moose emphatically denied

threatening Mr. Parrish. Reply at 11-12. In addition, Fox Moraine argues that a cursory review

of the transcripts from the landfill siting hearing demonstrates that, contrary to Yorkville’s claim,

Fox Moraine’s witnesses did not monopolize the hearings. Reply at 12. Fox Moraine cites to

the transcripts to demonstrate that direct examination was often very short with cross-

examination taking much more time.

Id

.

Opportunity to Present Evidence on the Application

Fox Moraine notes that Yorkville argues the “undisputed point” that Fox Moraine had a

full and complete opportunity to present evidence on the application. Reply at 18. However,

Fox Moraine contends that this opportunity is meaningless if the decisionmakers made up their

minds how to vote in advance, disregarded the evidence, or voted based on matters outside the

record.

Id

. Fox Moraine argues that Mr. Clark, with thirty years of landfill experience wrote a

report based on the evidence recommending approval of the siting application.

Id

. Fox Moraine

contends that the fact that seven council members voted no, suggests that the council members

either “didn’t listen to the evidence, didn’t care about the evidence, or didn’t consider the

evidence in reaching their decision.”

Id

. Fox Moraine asserts that a full and complete

opportunity to present evidence was thus a pointless endeavor.

Id

Fox Moraine challenges Yorkville’s portrayal of the siting hearings, arguing that

Yorkville relies on unsworn statements of objectors, FOGY members, and friends and relatives

of the unruly. Reply at 18. Fox Moraine asserts that Yorkville misunderstands the argument

being made by Fox Moraine.

Id

. Fox Moraine is arguing that the behavior was “quietly

encouraged” by Ms. Burd and Ms. Spears and created an atmosphere of hostility and

---

58

intimidation that all of the aldermen had to deal with.

Id

. Fox Moraine offers Mr. Munns as an

example of this, arguing that his statements indicate agreement with Mr. Clark and Mr. Price’s

recommendations, but ultimately he voted against siting.

Id

Materials Outside the Record

Fox Moraine asserts that Yorkville attempts to rebut Fox Moraine’s argument that the

council relied on information outside the record “through mincing words and pointing to

minutia”. Reply at 19. Fox Moraine asserts that Ms. Spears statement that there is no known

safe level for vinyl chloride is not supported by the record as the references to vinyl chloride in

the record are irrelevant and the IEPA recognizes a safe drinking water standard of two parts per

billion. Reply at 19, citing 35 Ill. Adm. Code 611.311.

As to the issue of criterion vi, Fox Moraine urges the Board to look at Ms. Spears

testimony as the testimony makes clear that Ms. Spears felt all along that any impact on traffic

flows was bad and sufficient to defeat criterion vi. Reply at 19.

Fox Moraine argues that Yorkville resorts to semantics in attempting to show that Mr.

Werderich’s statements are in the record. Reply at 19. Fox Moraine argues that Mr.

Werderich’s statement about complaints to various agencies is not the same as citizens’

comments in the siting hearing.

Id

. Fox Moraine argues that in any event these complaints are

not proper evidence in a landfill siting proceeding and Mr. Werderich’s comments were an

attempt to prejudice other council members. Reply at 20.

Written Decision

Fox Moraine does not challenge the sufficiency of the written decision, though Fox

Moraine argues the decision is wrong. Reply at 20. Rather, Fox Moraine argues that the

decision issued is not the decision of Yorkville.

Id

. Fox Moraine notes that Yorkville concedes

in the brief, that the final resolution was not before the council and Yorkville argues this is

routine.

Id

. Fox Moraine argues that the “formality” of putting the spoken words and votes from

deliberations into writing is “far different” than what happened in this case. Reply at 20-21. Fox

Moraine contends that in this case Ms. Burd “delegated to her team of attorneys the discretionary

task of actually deciding themselves what the substantive content

of the final resolution should

be.” Reply at 21 (emphasis in original).

Fox Moraine argues that Peoria Disposal does not support Yorkville’s position as there is

no issue that the written decision represented the substantive action of the decisionmaker. Reply

at 21. Fox Moraine contends that in this instance, the final resolution contained a number of

matters that were never voted on and clearly reflected substantive work done on the resolution.

Id

.

Fox Moraine argues that Resolution 2007-36 makes a finding that Fox Moraine did not

meet criterion ix. Reply at 22. Fox Moraine contends that this finding demonstrates that the bias

against Fox Moraine was so strong that a finding was made on criterion ix that is not even

applicable to Fox Moraine.

Id

.

---

59

Roth Report

Fox Moraine argues that the Wildman firm was never hired to perform the tasks reflected

in the invoice filed in this record. Reply at 21. Furthermore, Fox Moraine asserts that Ms. Burd

specifically disavowed hiring the Wildman firm prior to her being sworn in as mayor.

Id

. Fox

Moraine argues that no evidence has been provided to demonstrate that the Wildman firm was

hired by Yorkville to do any more than the fifty hours a month of ordinary municipal work.

Reply at 21-22.

ISSUES ON FUNDAMENTAL FAIRNESS

The multiple arguments of the parties on the issue of fundamental fairness can be

grouped in three main issues. The first issue involves the argument regarding the deliberative

process. The second issue concerns bias and prejudgment, and whether the pre-application

process, elections, newspaper and websites, behavior and speech of the public, and behavior and

speech of the council members, rendered the proceedings fundamentally unfair. The third issue

involves the actual decision on siting and includes whether the length of the public hearings and

resulting limited time to consider comments, the so-called “Roth Report” and other information

outside the record, and the resolutions and vote rendered the proceedings fundamentally unfair.

In addition, the

amicus

brief by FOGY raises a preliminary issue by seeming to assert that the

Board cannot review statements made by the public in determining whether or not the

proceedings were fundamentally unfair.

DISCUSSION ON FUNDAMENTAL UNFAIRNESS

The Board will first address the preliminary argument in the

amicus

brief by FOGY that

seems to argue that the Board cannot review the statements made by the public. The Board

disagrees and has substantial case law which supports the Board. The Board often reviews

statements made by the public, to ensure that statements are not made

ex parte

.

See e.g.

Waste

Management of Illinois v. Kankakee County Board, PCB 04-186 (Jan. 24, 2008); Peoria

Disposal PCB 06-184. The Board has repeatedly stated that:

The manner in which the hearing is conducted, the opportunity to be heard, the

existence of

ex parte

contacts, prejudgment of adjudicative facts, and the

introduction of evidence are important, but not rigid, elements in assessing

fundamental fairness. Hediger v. D & L Landfill, Inc., PCB 90-163 (Dec. 20,

1990). Waste Management PCB 04-186, slip op at 24.

Thus, the Board will review the speech and activities of the public as well as the elected officials

to determine whether the proceedings were fundamentally fair.

Deliberative Process

The Board next revisits the issue of the deliberative process privilege as the issue was

raised by Fox Moraine. Fox Moraine has asked the Board to reconsider the Board’s long held

---

60

position protecting the deliberative process of decisionmakers because of alleged bad faith in this

case. The Board has previously held that the integrity of the decision making process requires

that the mental processes of the decisionmakers be safeguarded, and that a strong showing of bad

faith or improper behavior is required before any inquiry into the decision making process can be

made. Rochelle Waste Disposal L.L.C. v. City Council of the City of Rochelle, Illinois, PCB 03-

218 (Apr. 15, 2004); Waste Management, PCB 04-186. Public officials, however, should be

considered to act without bias. E & E Hauling, 107 Ill. 2d at 42, 481 N.E.2d at 688. The

presumption of the impartiality of the actions of a public official will be overcome only where it

is shown by clear and convincing evidence that the official has an unalterably closed mind in

critical matters.

See

A.R.F. Landfill, Inc. v. Lake County, PCB 87-51 (Oct. 1, 1987). Fox

Moraine argues that in this case the decisionmaking process was fraught with bad faith and

closed minds. However, the Board finds that the evidence is insufficient to demonstrate bad

faith or unalterably closed minds. As will be discussed below in more detail, some of the

decisionmakers may have expressed an opinion on annexation, but the record contains no such

statements about the landfill siting application. In addition, the actions of the council members

running for election do not rise to the level of bad faith. The Board will not depart from the past

decisions protecting the deliberative process privilege.

Bias and Prejudgment

Waiver

Fox Moraine argues that the bias of council members, Mr. Werderich, Mr. Plocher and

Ms. Sutcliff contributed to the fundamental unfairness of the Yorkville landfill siting process.

Yorkville argues that Fox Moraine waived the right to challenge Mr. Werderich, Mr. Plocher and

Ms. Sutcliff by failing to challenge them before Yorkville. Fox Moraine maintains that until the

discovery process during the appeal, Fox Moraine did not have actual knowledge of the

disqualifying bias. Fox Moraine also argues that there was no opportunity to challenge the new

council members before the vote.

The law is well-settled that issues of bias or prejudice on the part of the local siting

authority are generally considered forfeited unless they are raised promptly in the original siting

proceeding “because it would be improper to allow the complainant to knowingly withhold such

a claim and to raise the claim after obtaining an unfavorable ruling.” E & E Hauling. 107 Ill. 2d

at 38-39, 481 N.E.2d at 666. Fox Moraine concedes that if Fox Moraine had knowledge of the

disqualifying bias, then Fox Moraine would have waived the objection.

The Board finds that Fox Moraine did have “knowledge” of alleged bias as to Mr.

Werderich and Mr. Plocher and therefore has waived the right to bring the objection. Fox

Moraine attempts to differentiate between “knowledge” and “belief” and argues that they

believed there was bias but did not know. This argument fails with Mr. Werderich and Mr.

Plocher, given that much of Fox Moraine’s argument concerning their alleged bias is based on

membership in FOGY and their activities at council meetings on annexation. Also, the Board is

unconvinced that an objection to the new council members could not have been made at the May

23, 2007 council meeting. Although no mechanism for objection was formally available, no

attempt was made by Fox Moraine. Therefore, the Board finds that Fox Moraine has waived

---

61

objection to Mr. Werderich and Mr. Plocher. The Board will however consider some of the

arguments made concerning the alleged bias of these council members as those arguments relate

to the remaining issues of fundamental fairness.

As to Ms. Sutcliff, the Board finds that Fox Moraine did not waive their objection. The

Board is convinced that Fox Moraine only discovered alleged bias of Ms. Sutcliff during the

discovery process of the appeal.

Bias and Prejudgment of Council Members

Fox Moraine has presented argument that many factors lead to and establish the bias and

prejudgment of Yorkville on the issue of siting. Fox Moraine points to annexation and road

vacation hearings, decisions to run for office, campaign committees, newspaper articles, web

sites, and intimidation by the public and council members. As discussed above, the allegations

of bias against Mr. Werderich and Mr. Plocher are waived, but the allegations of Ms. Sutcliff’s

potential bias is not. In addition, Yorkville denied a motion to disqualify Ms. Spears and Ms.

Burd and the Board will consider that decision.

The Board and the courts have repeatedly held that the members of a local siting

authority are presumed to have made their decision in a fair and objective manner.

See

E & E

Hauling, 107 Ill. 2d at 42, 481 N.E.2d at 667-68; Waste Management, 175 Ill. App. 3d at 1040,

530 N.E.2d at 695; Peoria Disposal 385 Ill. App. 3d at 797; 896 N.E.2d at 475. That

presumption is not overcome merely because a member of the authority has previously taken a

public position or expressed strong views on a related issue.

See

415 ILCS 5/39.2(d) (2008);

Waste Management, 175 Ill. App. 3d at 1040, 530 N.E.2d at 695; Peoria Disposal 385 Ill. App.

3d at 798; 896 N.E.2d at 475. Rather, to show bias or prejudice in a siting proceeding, the

challenger must show that a disinterested observer might conclude that the local siting authority,

or the members, had prejudged the facts or law of the case. Waste Management, 175 Ill. App. 3d

at 1040, 530 N.E.2d at 696; Peoria Disposal 385 Ill. App. 3d at 798; 896 N.E.2d at 475.

The Board has examined the record carefully and reviewed the transcripts of the council

meeting both from the annexation hearings and the siting decision. The Board has closely

reviewed the transcripts from the siting hearings. The Board cannot find support for Fox

Moraine’s arguments. Did Ms. Sutcliff, Ms. Spears and Ms. Burd oppose annexation, yes. Did

Ms. Burd have landfill opponents on her campaign committee, yes. However, the record

contains no evidence of statements opposing the landfill being made by the council members

voting on the application. At hearing before the Board, Fox Moraine was unable to even

establish that campaign signs were located in proximity to anti-landfill signs.

Fox Moraine has attempted to argue that the annexation and landfill siting decision are

one and the same. However, they are not. Fox Moraine admits that confidential memorandums

circulated concerning the connection between annexation and siting. Fox Moraine also admits to

holding meetings with council members before filing the application for siting. Annexation may

have been conducive to a potential landfill siting application, but at the annexation hearings

themselves, Fox Moraine’s attorneys stated Fox Moraine had not decided what to do with the

property. Thus, the Board will not equate the two different legal proceedings and “strong views

---

62

on a related issue” does not establish bias in this siting proceeding. The Board finds support in

this conclusion in E & E Hauling wherein the Illinois Supreme Court found that the local

decisionmaker had not prejudged the application even though prior ordinances supporting

expansion of the landfill had been passed. E & E Hauling, 107 Ill. 2d at 43, 481 N.E.2d at 668.

As to Fox Moraine’s arguments about the election campaign committees, candidate web

sites, and decisions to run for office, the Board finds that the activities were citizens exercising

their various rights during the election process. Ms. Sutcliff did have a web site and she

adamantly maintained she was merely reporting the proceedings. Upon learning that she should

not discuss the landfill as she might be a decisionmaker, Ms. Sutcliff removed the materials.

Dissatisfaction with the performance of elected officials is a common reason to run for office and

Mr. Werderich, Mr. Plocher, and Ms. Sutcliff were well within their rights to run. Likewise, the

formation of and participation on Ms. Burd’s campaign committee are exactly the types of

activities associated with elections. The Board finds these activities do not establish bias.

Fox Moraine also deplores the behavior of opponents at the public hearings on

annexation and siting. Specifically, Fox Moraine notes that a number of times opponents

applauded anti-annexation sentiment and the “attacks” on Yorkville for annexing the property.

See

FMBr. at 14-15. Although, the activities of the opponents at the landfill siting hearings may

have been offensive to some, there is no indication in the record that Fox Moraine’s ability to

present evidence concerning the siting application was inhibited. Allegations of threats were

made by both sides, but the record contains no indication that these threats impacted the

decision.

See

Waste Management, PCB 04-186. Furthermore, the Board notes that Yorkville’s

hearing officer, Mr. Clark did exercise control and on at least one occasion chastised the

audience.

See

C08116-8119. Thus, the Board finds that the behavior of the public did not create

a bias.

Therefore, based on a careful review of the arguments and the record in this case, the

Board finds that the record does not support a finding that bias or prejudgment rendered the

proceedings fundamentally unfair.

Deliberations

Fox Moraine argues that the submission of a substantial amount of information to the

council members on May 23, 2007, rendered the proceeding fundamentally unfair. Yorkville

asserts that over 1,000 pages of that material was Fox Moraine’s final comment and some of the

information could have been provided sooner. Section 39.2 of the Act (415 ILCS 5/39.2 (2008))

sets forth strict timeframes for action to be taken by both the local decisionmaker and the Board,

with only the applicant able to waive those strict timeframes.

see

35 Ill. Adm. Code 107.504; 35

Ill. Adm. Code 101.308. The case law is also clear that as long as the record is made available to

the decisionmaker for review prior to making a decision, the proceeding is fundamentally fair.

Waste Management, 123 Ill. App. 3d at 1081, 463 N.E.2d at 974, citing E & E Hauling, 116 Ill.

App. 3d at 604, 451 N.E.2d at 569.

In this instance, Fox Moraine is arguing that the record was available but the

decisionmaker was unable to review the record. The Board is unpersuaded by this argument. A

---

63

vote was taken by the council to continue the meeting and that vote was defeated.

See

C18541.

At least one council member affirmatively stated that he reviewed all the evidence before the

vote on May 24, 2007.

See

C18597-98. Furthermore, although the council members had the

notebooks before them, Mr. Price’s report was actually submitted May 18, 2007, five days before

the May 23, 2007 meeting.

See

C18740. Mr. Price and Mr. Clark’s filings together were only

23 pages.

See

C18740-18763. Thus, the bulk of the material supplied on May 23, 2007 was the

over 1,000 pages of material submitted by Fox Moraine. Therefore, the Board finds that the late

submission of materials did not render the proceedings fundamentally unfair.

Hand in hand with the arguments about late submission of the materials, are Fox

Moraine’s arguments that the public hearings were lengthened by the behavior of the opponents.

The Board finds that the length of the public hearings, which were completed in sufficient time

to allow for the statutory public comment period also did not render the proceedings

fundamentally unfair.

Materials Outside the Record

The Board will now turn to the “Roth Report” and the activities of the Wildman law firm.

The Board has carefully reviewed the invoice provided and the testimony of Ms. Burd.

Likewise, the Board notes statements from the May 23, 2007 Yorkville meeting which offer

insight into the content of the Roth Report (

see

C18558). The Board finds nothing which

convinces the Board to overrule the Board’s hearing officer’s decision that the materials in the

Roth Report are protected by the attorney-client privilege. Fox Moraine relies heavily on the fact

that Yorkville has no specific record that the Wildman firm was hired to perform work on the

landfill siting, other than the testimony of Ms. Burd. However, the invoice is stamped paid and

thus Yorkville paid Wildman for these services. Therefore, the Board finds that the Roth Report

is protected by the attorney-client privilege and did not result in the proceeding being

fundamentally unfair.

Fox Moraine argues that Ms. Spears and Mr. Werderich performed “research” outside the

record and relied on that information in determining that the landfill siting application should be

denied. The Board disagrees and Yorkville has provided citations to the record which could

form the basis for the statements. Therefore, the Board finds that Ms. Spears and Mr. Werderich

did not rely on or pass on information that is not within or supported by the record.

Resolutions

Fox Moraine argues that Yorkville illegally delegated the authority to make a final

decision to the city attorney. Yorkville argues that the city attorney merely prepared a written

document to reflect Yorkville’s decision. As recently as Peoria Disposal the Board has faced a

challenge to the decisionmakers’ final action. In Peoria Disposal, the Board found that a vote

and the transcript of the vote were sufficient. Peoria Disposal, PCB 06-184, slip op. at 13,

aff’d

Peoria Disposal, 385 Ill. App. 3d 781, 896 N.E.2d 460. The Board and the courts have also held

that “so long as the decision is in writing, and a record has been made showing the basis for the

decision, neither a detailed statement finding specific facts, nor a detailed explanation of the

relationship between the facts, the criteria, and the conclusions is necessary, and the decision can

---

64

be framed in the language of the criteria set out in the statute.” Clutts v. Beasley, 185 Ill. App.

3d 543; 541 N.E.2d 844. Thus, the decisionmaker has wide latitude in memorializing the

decision made.

In this case, the city attorney prepared several potential resolutions and the council

members considered them.

See

C18612. During the meeting on May 24, 2007, several council

members suggested additional conditions to be added to the denial. The council gave leave to

the city attorney to finalize a resolution consistent with the discussion and the law. The

resolution submitted and dated May 24, 2007 is Resolution 2007-36. Criterion ix is listed prior

to a parenthetical about previous operating experience.

See

C18641.

The Board finds that Yorkville did not impermissibly delegate the decisionmaking to the

city attorney. The resolution signed by the mayor reflects Yorkville’s deliberations of May 24,

2007, and reflects the will of the council as voted on that night. The Board views the reference

to criterion ix as a scrivener’s error, as the record is clear that Yorkville was referring to the

operating history of the operator. Therefore, the Board finds that the existence of multiple draft

resolutions did not render the proceeding fundamentally unfair; nor should Fox Moraine’s siting

be granted by operation of law.

VILLAGE OF PLAINFIELD

AMICUS CURIE

BRIEF

Plainfield strongly supports the decision of Yorkville and joins and adopts the brief filed

by Yorkville. VBr. at 1.

KENDALL COUNTY BRIEF

Kendall County adopts and incorporates Yorkville’s brief on the issue of traffic and

consistency with the county’s solid waste management plant. KCBr. at 1. Kendall County also

incorporates a stipulation between Kendall County and Fox Moraine.

Id

.

DISCUSSION ON CRITERIA

The Board will address the arguments made generally on the criteria. Next the Board

will address arguments and findings on criteria i, iii, vi, and viii, individually. The Board will

discuss criteria ii, v, and operator history together because the facts and arguments are

connected.

General Arguments

Fox Moraine’s Arguments

Fox Moraine argues that this case is controlled by Industrial Fuels, 227 Ill. App. 3d 533,

592 N.E.2d 148 because there was “simply no competent evidence presented by the objectors on

any criterion.” FMBr. at 101. Fox Moraine argues that

prima facie

proof for each of the

statutory criteria was presented and Yorkville’s findings that Fox Moraine did not meet the

---

65

statutory criteria are not supported by the record. FMBr. at 50. Fox Moraine opines that

Yorkville’s decision is against the manifest weight of the evidence and should be reversed.

Id

.

As further proof of the lack of record, Fox Moraine asserts that Yorkville actually found that two

criteria were not met, which don’t even apply in this case. FMBr. at 51.

Fox Moraine asserts that the Board is not free to disregard an applicant’s expert evidence.

FMBr. at 103. Further the Board cannot disregard the lack of credible opposition evidence.

Id

.

Fox Moraine opines that the Board must base the decision on competent evidence and not merely

speculation or unreliable or incompetent evidence.

Id

. Fox Moraine claims that once the

applicant makes a

prima facie

case the burden shifts to the opponents.

Id

. Fox Moraine reminds

the Board that public comments are not entitled to the same weight as expert testimony. FMBr.

at 103.

Fox Moraine claims that in making a manifest weight determination, the Board must

decide if there is any technically sound basis for concluding that a criterion has not been met.

FMBr. at 51. Fox Moraine argues that in Town & Country, 225 Ill. 2d 103, 866 N.E.2d 227, the

Illinois Supreme Court pointed out that the legislature intended a unified statewide approach to

pollution control facility approval “where the primary responsibility lies with the technically

qualified PCB [Board].” FMBr. at 51. Fox Moraine also argues that in Town & Country, units

of local government have concurrent jurisdiction and render an interim decision, which can be

challenged in an appeal to the Board wherein the Board’s technically qualified members make

factual and legal determinations on the evidence. FMBr. at 51, citing Town & Country, 225 Ill.

2d at 117, 866 N.E.2d at 235.

Fox Moraine maintains that the “mandate of our Supreme Court” in Town & Country,

“suggests that the Board take a more proactive and aggressive role in landfill siting decision

process.” FMBr. at 105. Fox Moraine argues that the Illinois Supreme Court has made clear that

the local decision is merely an interim decision and that ultimately the Board determines when

an applicant has met the siting criteria.

Id

. Fox Moraine notes that the Illinois Supreme Court

acknowledged that the Board has the knowledge and expertise to determine whether the local

interim decision requires correction or reversal.

Id

.

Yorkville’s Arguments

Yorkville argues that prior to 1981, Yorkville would have had no opportunity or input on

whether a landfill could be sited in Yorkville as that authority formerly rested with the IEPA.

YBr. at 43. The legislature added Section 39.2 of the Act (415 ILCS 5/39.2 (2008)) to allow for

local input and the intent was to transfer to municipalities and counties the authority that rested

with IEPA. YBr. 43, citing CDT Landfill Corp. v. City of Joliet, PCB 98-60 (Mar. 5, 1998).

Yorkville asserts that to grant siting approval the local decisionmaker must find that all statutory

criteria have been met and if the applicant fails to meet even one of the criteria, the application

fails. YBr. at 43, citing Town & Country 225 Ill. 2d at 109, 866 N.E.2d at 231; Waste

Management, 160 Ill. App. 3d at 443, 513 N.E.2d at 597.

Yorkville asserts that the Board will not overturn the local authority’s decision unless the

decision is against the manifest weight of the evidence. YBr. at 43-44, citing Land and Lakes

---

66

Co., 319 Ill. App. 3d at 52, 743 N.E.2d at 197; Peoria Disposal, PCB 06-184. Yorkville

maintains that a decision is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident, plain or indisputable or if no rational trier of fact could have agree

with the local siting decision. YBr. at 44, citing

Id

. and Worthern v. Roxana, 253 Ill. App. 3d

378, 384, 623 N.E.2d 1058, 1063 (5th Dist. 1993).

Yorkville maintains that the manifest weight of the evidence standard is consistent with

the legislative intent and merely because the local government could have drawn different

inferences the Board cannot reverse. YBr. at 44, citing Land & Lakes v. Romeoville, PCB 92-25

(June 4, 1992). Yorkville argues that where there is conflicting evidence the Board may not

reverse simply because the local decisionmaker credited one group of witnesses over another.

Id, see

Wabash & Lawrence Counties Taxpayers & Waterdrinkers Ass’n v. PCB, 198 Ill. App.

3d 388, 392, 555 N.E.2d 1081, 1085 (5th Dist. 1990); Tate v. PCB, 188 Ill. App. 3d 994, 1022,

544 N.E.2d 1176, 1195 (4th Dist. 1989).

Yorkville takes issue with the Fox Moraine argument that Town & Country mandates

that the Board somehow modify the manifest weight of the evidence standard. YBr. at 44.

Yorkville claims that this argument is contrary to the well-established line of precedent and a

misreading of Town & Country. YBr. at 44-45. Yorkville maintains that the Illinois Supreme

Court did not alter the standard of review the Board should apply to the local decision, but rather

decided that the appellate court must review the Board’s decision. YBr. at 45. Yorkville

maintains that the Illinois Supreme Court specifically rejected the same argument advanced here

by Fox Moraine indicating that the Board applies the manifest weight of the evidence standard to

the local decision.

Id,

citing Town & Country, 225 Ill. 2d at 106, 120, 117, 866 N.E.2d at 229,

237.

Yorkville maintains that Yorkville weighed the evidence, resolved conflicts in testimony

and assessed witness credibility. YBr. at 45. Yorkville determined the Fox Moraine failed to

establish that the application met criteria i, ii, iii, v, vi, viii, and the operator experience.

Id

.

Yorkville argues that the Board should affirm the decision of Yorkville.

Id

.

Yorkville asserts that Fox Moraine’s reliance on the findings of Mr. Price and Mr. Clark

are largely irrelevant as Yorkville is charged under the Act to make the determination that the

statutory criteria have or have not been met. YBr. at 80. Yorkville contends that a local

government’s consultant or staff report is not binding on the decisionmaker.

Id,

citing Rochelle

,

PCB 03-218. Yorkville maintains that the reports actually support the findings of Yorkville and

prove that the decision was not against the manifest weight of the evidence.

Id

.

Yorkville maintains that Fox Moraine cannot dispute that the applicant must establish

that a proposed landfill meet the statutory criteria. YBr. at 81. Furthermore, Yorkville argues

that the local siting authority is not obligated to correct deficiencies. YBr. at 82.

Fox Moraine’s Reply

Fox Moraine claims that in assessing whether a decision is against the manifest weight of

the evidence, the Board must determine whether there is any sound technical basis for

---

67

concluding that a criterion is not met. Reply at 22. Fox Moraine argues that the Illinois Supreme

Court in Town & Country explained that the Board must conduct a technical review of the record

developed to decide whether the record supports the local siting decision.

Id

. Fox Moraine

argues that a decision is against the manifest weight of the evidence if an opposite conclusion is

apparent or the decisionmaker’s findings appear to be arbitrary, unreasonable or not based on

evidence.

Id,

citing Webb v. Mount Sinai Hospital, 347 Ill. App. 3d 817, 807 N.E.2d 1026 (1st.

Dist. 2004). Fox Moraine argues that the mere existence of some evidence that conflicts with the

applicant’s proof is not sufficient to support a denial of siting. Reply at 23, citing A.R.F.

Landfill, PCB 87-51.

Fox Moraine argues that in this instance the applicant presented thorough, competent and

exhaustive technical and scientific evidence that offered

prima facie

proof that the statutory

criteria had been met. Reply at 23. Fox Moraine argues that Yorkville’s decision is against the

manifest weight of the evidence and the Board should reverse the siting decision. Reply at 23-

24.

Board’s Findings Regarding General Arguments

The Board is not persuaded by Fox Moraine that the Illinois Supreme Court decision in

Town & Country, 225 Ill. 2d 103, 866 N.E.2d 227, is an invitation to the Board to take a more

“proactive and aggressive” (FMBr. at 105) role in landfill siting cases. The decision in Town &

Country made clear that the Board’s decision is reviewed by the appellate court in a siting

appeal; however, the Illinois Supreme Court did not disturb the existing case precedent on siting

appeals. The Board’s position is shared by the appellate court in Peoria Disposal, where the

applicant argued that Town & Country changed the standard by which the Board reviews the

local siting decision. The appellate court rejected that argument. Peoria Disposal, 385 Ill. App.

3d at 800, 896 N.E.2d at 477. The precedent is well-settled that the Board reviews the local

siting decision to determine if that decision is against the manifest weight of the evidence. Land

and Lakes, 319 Ill. App. 3d at 48, 743 N.E. 2d at 194; Waste Management, 160 Ill. App. 3d 434,

513 N.E.2d 592; Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996.

The Board reviews the record using the Board’s technical expertise to determine whether

the decision of the local siting authority is against the manifest weight of the evidence. Town &

Country, 225 Ill. 2d at 122-123, 866 N.E.2d at 238-239. The Board does not reweigh the

evidence. Fairview, 198 Ill. App. 3d 541, 555 N.E.2d 1178. A decision is against the manifest

weight of the evidence if the opposite result is clearly evident, plain, or indisputable from a

review of the evidence. Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197.

As to Yorkville’s challenging of Fox Moraine’s reliance on the opinions of Mr. Price and

Mr. Clark, Yorkville is correct that the decisionmaker is not bound by the opinions of the expert

hired by that decisionmaker. The Board has consistently found that a local government’s

consultant report or staff recommendation is not binding on the decisionmaker. Rochelle, PCB

03-218; CDT Landfill, PCB 98-60; Hediger, PCB 90-163; McLean County Disposal Company v.

County of McLean, PCB 89-108 (Nov. 15, 1989). Therefore, the Board finds that Mr. Price’s

and Mr. Clark’s reports, though relevant to the decision of Yorkville, were not binding on

Yorkville.

---

68

Criterion i (Need)

Fox Moraine’s Arguments

Fox Moraine asserts that need is established where the proposed facility is reasonably

required by the waste needs of the service area as defined by the applicant. FMBr. at 51, citing

File v. D&L Landfill, 219 Ill. App. 3d 897, 597 N.E.2d 1228 (5th Dist. 1991). Fox Moraine

maintains that opposition to the service area size, or to accepting waste from outside the county,

are not proper reasons to deny siting based on criterion i. FMBr. at 51-52, citing Metropolitan

Waste Systems v. PCB, 201 Ill. App. 3d 51, 558 N.E.2d 785 (3rd Dist. 1990). Fox Moraine

delineates the testimony provided in support of the criterion, noting that the eight-county service

area once had 28 landfills but only ten are still operating. FMBr. at 52. Fox Moraine argues that

based on the insufficient remaining disposal capacity for the service area and the time involved

in siting and developing a landfill, Fox Moraine established a need for the facility. FMBr. at 53.

Fox Moraine argues that the only evidence provided by objectors on criterion i was

provided by a “retired industrial arts teacher” who based his research on internet and newspaper

articles. FMBr. at 101. Fox Moraine asserts that no scientific evaluation was performed by the

witness whose opinion seemed to be that waste should be shipped by rail downstate. FMBr. at

102. Fox Moraine asserts that Mr. Hyink’s “‘testimony’ is typical” of what Yorkville

“apparently accepted” as evidence. FMBr. at 54. Fox Moraine claims that Mr. Hyink’s

testimony had no relation to the designated service area.

Yorkville’s Arguments

Yorkville argues that the applicant must prove by a preponderance of the evidence that

the facility is needed to meet the waste needs of the service area defined by the applicant. YBr.

at 45, citing Waste Management

, 123 Ill. App. 3d at 1084, 463 N.E.2d at 976. Yorkville asserts

that the applicant need not show absolute necessity, but instead that the landfill is needed to

serve the area considering waste production and waste disposal capacity. YBr. at 46, citing Land

& Lakes, PCB 92-25; Waste Management, 123 Ill. App. 3d at 1084, 463 N.E.2d at 976.

Yorkville maintains that in considering this criterion, the decisionmaker may consider flaws in

the applicant’s expert’s analysis including inconsistent and unsupported conclusions.

Id,

citing

Peoria Disposal

, 385 Ill. App. 3d at 800-01, 896 N.E.2d at 477-78; Waste Management, 123 Ill.

App. 3d at 1085-87, 463 N.E.2d at 977-78.

Yorkville argues that the evidence provided by Fox Moraine included that the landfills in

Illinois, Indiana, Wisconsin, and Michigan would meet the needs of the larger region for eight to

nine more years and another 1.1 years can be added when including the additional capacity of

three other landfills. YBr. at 47-48. Yorkville notes that Mr. Kowalski conceded that the

proposed facility would constitute a small fraction of the total yearly disposal capacity available

to the service area. YBr. at 48. Yorkville asserts from Mr. Kowalski’s testimony alone that

Yorkville could have determined the proposed landfill was unnecessary.

Id

.

---

69

Yorkville asserts that Fox Moraine merely established that the proposed facility would be

convenient to certain counties in the service area. YBr. at 48. Yorkville asserts that 80% of the

waste from the service area is already exported from the service area and the landfills examined

by Mr. Kowalski have over 10 years of remaining capacity.

Id

. Yorkville maintains that this

evidence alone supports the decision of Yorkville.

Id,

citing Waste Management, 123 Ill. App.

3d at 1084, 463 N.E.2d at 976; Waste Management of Illinois v. Lake County Board, PCB 82-

119 (Dec. 30, 1982). Yorkville adds that Kendall County produces only 0.7% of the waste

generated in the service area, another factor that weighs against need.

Id

.

Yorkville argues that Fox Moraine’s analysis is inconsistent in that Fox Moraine projects

the life of the proposed facility to be 23 years, with all the remaining landfills to close in eight to

nine years. YBr. at 48-49. Yorkville claims that by Fox Moraine’s own estimates if there were

no other landfills accepting waste, the proposed landfill would be open less than two years. YBr.

at 49. Thus, Yorkville maintains that Fox Moraine must be estimating additional landfill space

will be available in the service area.

Id

.

Yorkville argues that even more evidence was presented that the landfill was not needed,

pointing to the testimony of Mr. Hyink. YBr. at 49. Yorkville contends that Fox Moraine

attempts to divert the Board, by challenging the fact that Mr. Hyink is not an expert.

Id

.

However, Yorkville argues that Mr. Hyink’s non-expert status does not discredit otherwise

persuasive evidence.

Id,

citing Waste Management, 123 Ill. App. 3d at 1086, 463 N.E.2d at 977.

Yorkville argues that Mr. Hyink’s testimony is persuasive combined with the capacity estimates

of Fox Moraine.

Id

.

Fox Moraine’s Reply

Fox Moraine argues that the use of “necessary” in the statute does not require the

applicant to show that the proposed facility is necessary in absolute terms, but only that the

proposed facility is “expedient” or “reasonably convenient” for the area’s waste needs. Reply at

24, citing E&E Hauling

, 116 Ill. App. 3d at 609, 451 N.E.2d at 573. Fox Moraine argues that

opposition to the service area size or accepting out of county waste are not sufficient reasons to

deny siting based on criterion i.

Id,

citing Metropolitan Waste Systems

, 201 Ill. App. 3d 51, 558

N.E.2d 785.

Fox Moraine maintains that Yorkville attempts to support the decision that criterion i was

not met by arguing that if all the waste in the eight county area were placed in the proposed

landfill, the landfill would be full in two years. Reply at 24. Fox Moraine is unclear on how

Yorkville finds that this shows no reasonable need for the landfill.

Id

. Equally unclear to Fox

Moraine is Yorkville’s argument concerning the amount of waste Kendall County generates as

opposition to accepting out-of-county waste is irrelevant.

Id

.

Fox Moraine argues that the absence of a present extreme crisis does not mean that

criterion i has not been met; an applicant need only demonstrate that the proposed facility is

reasonably required to meet the waste needs of the service area. Reply at 24-25. Fox Moraine

contends that the fact that there may be ten years of capacity does not negate the need for a

---

70

facility given that siting and permitting of landfills can take an average of nine years. Reply at

25

Fox Moraine argues that Yorkville ignores the evidence regarding the remaining number

of landfills and that the landfills historically relied upon by Kendall County are diminishing.

Reply at 25. Fox Moraine argues that Yorkville also ignores the distance to other landfills once

the nearest landfills are closed given that the proposed landfill will be centrally located.

Id

.

Fox Moraine argues that Yorkville’s misrepresentation of the evidence is glaring and

unmistakable. Reply at 25. Fox Moraine contends that the evidence clearly demonstrates that

Yorkville and Kendall County are experiencing rapid growth and landfill capacity is shrinking,

thus refuting that there is no evidence of need. Reply at 25-26.

Fox Moraine notes that the conditions set forth by Mr. Clark and Mr. Price are a “stark

illustration of the falsity of Yorkville’s oft-reported theory” that Mr. Price found the application

did not meet criterion i. Reply at 26.

Board’s Findings

As stated above, the Board does not reweigh the evidence, but instead uses the Board’s

technical expertise to determine whether the record supports the local siting authority’s decision.

The Board will reverse the local siting authority’s decision on a criterion if that decision is

against the manifest weight of the evidence. Criterion i requires the applicant to demonstrate that

the landfill is necessary to meet the waste needs of the service area as defined by the applicant.

The applicant need not show absolute necessity, but mere convenience is also not sufficient to

meet the criterion.

In this case, evidence in the record demonstrates that landfill capacity is available.

See

C09391-9399. The record demonstrates that landfill disposal, after closure of landfills closer to

Kendall County, will be more costly and require shipment. But alternative capacity has been

demonstrated. Mere convenience is not sufficient to establish need. The Board notes that the

courts have found that need also does not depend only on the life expectancy of the existing

landfills, but the existence of facilities outside the county may also be considered. Waste

Management, 175 Ill. App. 3d at 1033, 530 N.E.2d at 691. Therefore, the Board finds that the

record supports Yorkville’s decision on criterion i, and the Board affirms Yorkville’s decision

that criterion i was not met.

Criterion iii (Minimize Incompatibility and Impact on Property Values)

Fox Moraine’s Arguments

Fox Moraine argues that the objectors’ experts misunderstood the criterion, lacked

relevant expertise, or were motivated by personal interest. FMBr. at 102. Fox Moraine

maintains that the opposition groups presented witnesses who lacked relevant experience, failed

to conduct legitimate, verifiable investigations and analyses, and largely misunderstood the

standards under the criterion. FMBr. at 72.

---

71

Fox Moraine recaps the testimony of Mr. Lannert and Mr. Harrison, noting that both

opine that the facility is designed to minimize the impact on the surrounding area and property

values. FMBr. at 68-71.

Fox Moraine claims that Mr. Sleezer, who evaluated the Residential Property Value

Protection Plan (Plan), is a “self-described real estate broker and farmer . . . as well as an

undisclosed member of” Ms. Burd’s campaign committee,. FMBr. at 72. Fox Moraine notes

that Mr. Sleezer has brokered less than ten real estate deals in the preceding two years and some

of those were personal dealings.

Id

. Fox Moraine argues that Mr. Sleezer had never previously

looked at a Plan and his opinion was based largely on hearsay.

Id

. Fox Moraine also attacks Mr.

Sleezer claiming he has a pecuniary interest because the Plan does not protect Mr. Sleezer’s own

property in the vicinity of the landfill.

Id

.

Fox Moraine also takes issue with Mr. Wormley’s testimony claiming a personal interest

because he owns property in the area. FMBr. at 72-73. Fox Moraine notes that Mr. Wormley is

not a certified appraiser, but offered the opinion that there would be deprecation of the

surrounding property if the landfill was sited.

Id

. Fox Moraine points to alleged inconsistencies

in Mr. Wormley’s testimony and asserts that Mr. Wormley could offer no suggestions for

minimization of the impact. FMBr. at 73.

Fox Moraine argues the Mr. Schneller was also self-motivated and self-interested because

he lives near the facility. FMBr. at 74. Fox Moraine takes issue with the analysis performed by

Mr. Schneller using “highest and best use” comparisons.

Id

. Fox Moraine notes that Mr.

Schneller was unaware of developments occurring around existing landfills.

Id

.

Fox Moraine takes issue with the late submission of Mr. Adams report and the use of

Hillside landfill for comparison given the substantial difference between the proposed landfill

and Hillside. FMBr. at 75-76. Fox Moraine points to several weaknesses in the testimony of

Mr. Adams. FMBr. at 75-78.

As to Mr. Abel, Fox Moraine noted that Mr. Abel’s testimony relied on Yorkville’s

Comprehensive Land Use Plan Update. FMBr. at 78. However, Fox Moraine points out that

Mr. Abel conceded that the landfill was outside the boundaries of the Comprehensive Land Use

Plan Update.

Id

. Fox Moraine asserts that “notably” Mr. Abel never assisted an applicant in

filing an application for siting approval. FMBr. at 79

Yorkville’s Arguments

Yorkville asserts that the Act requires the landfill applicant to minimize the

incompatibility with the surrounding area and minimize the effect on property values. YBr. at

55, citing 415 ILCS 5/39.2(a)(iii) (2008). Yorkville asserts that the applicant must demonstrate

compliance with both portions of the criterion.

Id,

citing Waste Hauling, Inc. v. Macon County,

PCB 91-223 (May 7, 1992). Yorkville argues that as to the first portion, the applicant must

demonstrate that the applicant has done or will do what is reasonably feasible to reduce the

landfill’s incompatibility.

Id,

citing Waste Management, 123 Ill. App. 3d at 1090, 463 N.E.2d at

---

72

980. Yorkville asserts that where the applicant fails to address the entire surrounding area and

inadequacies in the applicant’s minimization efforts are shown, the applicant has not met the

burden.

Id

.

Yorkville argues that the decisionmaker may consider height and visibility and the

application’s failure to consider viewpoints from multiple vantage-points or environmental and

visual impact. YBr. at 56 (citations omitted). Yorkville asserts that the decisionmaker may also

consider whether the proposed landfill is shielded from view on all sides.

Id

.

Yorkville argues that as to the second portion of criterion iii that the decisionmaker may

consider not only expert testimony regarding valuation, but also public statement regarding any

difficulty of selling of property or the decline of nearby business. YBr. at 56, citing Waste

Management, 123 Ill. App. 3d at 1090-92, 463 N.E.2d at 980-81. Yorkville contends that the

decisionmaker may also consider whether property values and residential sales near existing

landfills have decreased even when 80% of the land nearby the landfill is agricultural.

Id,

citing

Rochelle, PCB 03-218.

Yorkville argues that the decision of Yorkville is not against the manifest weight of the

evidence given the conflicting testimony and especially given the conditions recommended by

Mr. Price. YBr. at 57. Further, Yorkville notes that Mr. Price found parts of Mr. Harrison’s

testimony not credible.

Id

.

Yorkville takes issue with many statements made by Mr. Lannert noting that Mr. Lannert

did not count residents or residential units in the area surrounding the landfill while

acknowledging the explosive growth of the area. YBr. at 57. Yorkville contends that Mr.

Lannert conceded that Fox Moraine needed to consider future growth and that growth tended to

residential.

Id

. Yorkville notes that Mr. Lannert opined that the development would occur with

or without the landfill.

Id

.

Yorkville asserts that as designed only three sides of the completed landfill will be

landscaped and Mr. Lannert was unable to testify as to whether or not active cells would be

shielded from view. YBr. at 58. Yorkville maintains that Mr. Lannert’s testimony was that the

landform would be visible and almost 80 feet higher than the next tallest point.

Id

.

Yorkville argues that the Fox Moraine thus failed to provide for proper landscaping and

screening and the landfill would become the highest point in the area. YBr. at 58. Furthermore,

Yorkville argues, the design did not recognize that the recreational needs could change over the

life of the facility or provide a way for Yorkville or the community to have input on appearance

closer to the closure date.

Id

.

Yorkville points to the testimony of Mr. Abel, noting his disagreement with Mr.

Lannert’s methodology and classification of the area. YBr. at 58-60. Yorkville contends that

Mr. Abel’s opinion is that the landfill design did not minimize the impact on the surrounding

area. YBr. at 60.

---

73

Yorkville similarly takes issue with Mr. Harrison’s historical case studies and failure to

perform analysis on the data, rather than merely spot checking the data. YBr. at 60-61.

Yorkville asserts that Mr. Harrison’s conclusions regarding Settler’s Hill industrial growth are in

complete indifference to Yorkville’s residential growth. YBr. at 61.

Yorkville also takes issue with Mr. Harrison’s testimony on the Plan. YBr. at 61.

Yorkville contends that Mr. Harrison did not study property values to note the impact of the

application on property values and he suggested that development in the area would have to be

compatible with industrial uses. YBr. at 61-62.

Yorkville notes that FOGY presented the testimony of four witnesses concerning the

second portion of criterion iii. YBr. at 62-65. Mr. Adams also looked at land sales around two

landfills and determined that in one instance the landfill had no noticeable impact, but at the

other landfill there was an impact. YBr. at 62-63. Yorkville also noted that Mr. Sleezer and Mr.

Wormley also expressed concerns about the impact of the proposed landfill on property values

especially given the Plan’s failure to cover nonresidential areas and potential loss of “1031”

sales. YBr. at 63-65. Yorkville also points to Mr. Schneller’s concerns that the design does not

minimize the impact on surrounding property values. YBr. at 65

Yorkville maintains that given the hearing testimony and the recommendations by Mr.

Price and Mr. Clark, the evidence supports Yorkville’s finding that Fox Moraine failed to satisfy

criterion iii. YBr. at 66. Yorkville cites several additional areas where Mr. Lannert and Mr.

Harrison’s testimony fell short. YBr. at 66-68.

Fox Moraine’s Reply

Fox Moraine reiterates the argument that the fact that Mr. Price recommended special

conditions does not equate with a finding that criterion iii cannot be met. Reply at 34. Fox

Moraine renews the argument that the opposition’s witnesses were lacking in appropriate

experience, failed to conduct legitimate, verifiable investigation, and largely misunderstood the

criterion. Reply at 35. Fox Moraine references Mr. Price’s report for support that the testimony

and evidence for the opposition is pointless. Reply at 35. Fox Moraine attacks the opinions of

witnesses such as Mr. Abel, Mr. Adams, and Mr. Sleezer. Reply at 36-38. Fox Moraine takes

issue with Yorkville’s characterization of Mr. Harrison’s testimony arguing that Yorkville resorts

to gross misrepresentations concerning the testimony. Reply at 41-42.

Board’s Findings

Yorkville was presented with substantial evidence regarding criterion iii. The Board

notes that the hearing body, in this case Yorkville, weighs the evidence, resolves conflicts in

testimony, and assesses the credibility of the witnesses. Merely because the Board could reach a

different conclusion, is not sufficient to warrant reversal. City of Rockford, 125 Ill. App. 3d 384,

465 N.E.2d 996; Waste Management, 122 Ill. App. 3d 639, 461 N.E.2d 542; Steinberg v. Petta,

139 Ill. App. 3d 503, 487 N.E.2d 1064 (1st Dist. 1985); Willowbrook Motel, 135 Ill. App. 3d

343, 481 N.E.2d 1032.

---

74

Fox Moraine argues that the witnesses presented by the opposition have a personal

interest in the outcome and are not qualified to offer opinions. The Board understands that

individuals who live in the area of a landfill may strongly oppose the siting and certainly Section

39.2 of the Act (415 ILCS 5/39.2 (2008)) contemplates participation by such individuals.

However, the Board disagrees with Fox Moraine that the individuals were not qualified to offer

opinions. Although not experienced in landfill siting, each of the individuals was involved and

had been involved in real estate transactions in the area. Also those who live and work locally

often have a unique perspective.

The Board finds that the record supports Yorkville’s decision that the design of the

landfill did not minimize the impact on surrounding properties or the impact on property values.

The Board does not reweigh the evidence or reassess the credibility of witnesses and in this

instance the record contains evidence which Yorkville could have relied upon for denial of

siting. The Board therefore affirms Yorkville’s decision that the applicant did not meet criterion

iii.

Criterion vi (Minimize Impact on Traffic)

Fox Moraine’s Arguments

Fox Moraine argues that the experts presented by the opposition “uniformly

misunderstood that the plain language of the criterion assumes that there will be some associated

increase in traffic.” FMBr. at 102. Fox Moraine asserts that the evidence presented by the

opponents focused solely on the notion that the landfill would generate increased traffic in and

around Yorkville. FMBr. at 83. Fox Moraine claims that the opponents’ witnesses failed to

address whether the design minimized the impact on traffic.

Id

. Fox Moraine opines that the

basis for the opponents’ testimony was that any increase in traffic would be unacceptable.

FMBr. at 83-84.

Fox Moraine recaps the testimony of Mr. Werthman noting his opinion that the facility

was designed to minimize the impact on traffic. FMBr. at 84-87. By contrast, Fox Moraine

argues that Mr. Coulter’s testimony focused not on minimization of impact from traffic but on

the location of the facility. FMBr. at 87. Fox Moraine asserts that Mr. Corcoran’s testimony did

not focus on minimization. FMBr. at 87-89.

Fox Moraine argues that the evidence provided by Fox Moraine was based on an in-depth

analysis using scientific data and proposed improvements as well as traffic patterns. FMBr. at

89. Opponents offered evidence that the landfill should be built somewhere else and that a town

16 to 17 miles away wanted to ensure that trucks associated with the landfill did not pass

through.

Id

.

Yorkville’s Arguments

Yorkville notes that while Mr. Werthman testified that the application met criterion vi,

two other experts, Mr. Coulter and Mr. Corcoran, disagreed. YBr. at 70. Yorkville delineates

several facts from the testimony of Mr. Coulter and Mr. Corcoran and argues that as the trier of

---

75

fact, Yorkville was able to hear and assess the testimony the various witnesses. YBr. at 70-72.

Yorkville contends that Yorkville could determine whether one witness was more credible than

others and the council members were free to use their own knowledge and familiarity with traffic

conditions. YBr. at 72, citing Fairview, 198 Ill. App. 3d at 550, 555 N.E.2d at 1184 and Hediger,

PCB 90-136. Yorkville claims that the council members could use this knowledge to determine

that criterion vi was not met.

Id

.

Yorkville reiterates that the Board may not reweigh the evidence or reassess the

witnesses’ credibility. YBr. at 72, citing Wabash, 198 Ill. App. 3d at 392, 555 N.E.2d at 1085;

Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195. Yorkville asserts that where there is

conflicting evidence, the Board is not free to reverse merely because the local siting authority

credits some witnesses and not others.

Id,

citing Waste Management, 187 Ill. App. 3d at 82, 543

N.E.2d at 507. Yorkville contends that there was significant testimony showing that Fox

Moraine failed to establish that the proposed landfill’s design would minimize the impact on

traffic flow and patterns. Because Yorkville was in the best position to weigh the evidence and

testimony, the Board should affirm Yorkville’s decision that criterion vi was not met. YBr. at

72.

Fox Moraine’s Reply

Fox Moraine argues that the opponents focus on the “notion that a landfill would

generally increase traffic in and around Yorkville and surrounding communities.” Reply at 45.

Fox Moraine reiterates that the opponents seem to argue that any increase in traffic is

unacceptable.

Id

. Fox Moraine relies on the findings of Mr. Price and Mr. Clark to support the

position that criterion vi was met and to challenge the arguments of Yorkville. Reply at 46. Fox

Moraine argues that Yorkville’s reliance on Mr. Coulter and Mr. Corcoran is misplaced as Mr.

Coulter focused on location of the landfill and Mr. Corcoran focused on the impact on Plainfield.

Reply at 47-48.

Board’s Findings

As with criterion iii, Yorkville was presented with substantial evidence regarding

criterion vi. And as noted above, Yorkville weighs the evidence, resolves conflicts in testimony,

and assesses the credibility of the witnesses. Merely because the Board could reach a different

conclusion, does not warrant reversal. City of Rockford

, 125 Ill. App. 3d 384, 465 N.E.2d 996;

Waste Management, 122 Ill. App. 3d 639, 461 N.E.2d 542; Steinberg, 139 Ill. App. 3d 503, 487

N.E.2d 1064; Willowbrook Motel, 135 Ill. App. 3d 343, 481 N.E.2d 1032.

Yorkville relied on the testimony of Mr. Coulter and Mr. Corcoran to decide that criterion

vi was not met. Fox Moraine agreed that Mr. Coulter and Mr. Corcoran may be experts, but

argued that they misunderstood the criterion and testified on location of the facilities and the

impact on the Village of Plainfield. Fox Moraine asserts that the criterion contemplates that

there will be traffic impacts, and the applicant must demonstrate that those impacts are

minimized.

---

76

The Board finds that the record contains evidence which supports Yorkville’s decision

that criterion vi was not met. The evidence to support Yorkville’s decision on criterion vi was

primarily supplied by the testimony of Mr. Coulter and Mr. Corcoran. The Board does not agree

that the criterion was misunderstood by the experts and notes that Mr. Coulter did review the

applicant’s study and took issue with portions of that study. Mr. Coulter specifically testified

that adding additional trucks to routes which are already designated “F” is not a good location

and offered the opinion that the truck traffic for the proposed landfill will worsen the impact on

traffic, and that Mr. Werthman should have examined potential impact on residential areas.

See

C13004; 13016; 13012-13013. The Board does not reweigh the evidence. Therefore, the Board

affirms the decision of Yorkville that criterion vi was not met.

Criterion viii (Consistency with County Solid Waste Management Plan)

Fox Moraine’s Arguments

Fox Moraine argues that Kendall County insists that the application is not consistent with

the SWMP because of the resolution passed on May 4, 2006. FMBr. at 90. Fox Moraine points

out that Kendall County’s position is that any landfill sited within the boundaries of a

municipality is inconsistent with the SWMP.

Id

. Fox Moraine argues that the evidence at

hearing establishes: 1) that the Kendall County Board never adopted the May 2006 amendment

to the SWMP; 2) the application is consistent with the formally adopted SWMP; 3) even if valid

the May amendment did not revoke or repeal prior plan updates; and 4) regardless of the “after

the fact expressions regarding the meaning of the May 2006 amendment” the application is

consistent. FMBr. at 91.

Fox Moraine asserts that the evidence established that when the proposed site was

initially located the SWMP provides for annexation of unincorporated property into a

municipality as was done in this case. FMBr. at 91. Fox Moraine argues that the SWMP

required a host agreement, which was also developed in this case.

Id

. In support of this

argument, Fox Moraine notes that Mr. Willis testified as to the adoption of the SWMP and

subsequent amendments. FMBr. at 91-92. Mr. Willis further opined on the content of the

SWMP.

Id

.

Fox Moraine argues that in September 2006, Fox Moraine entered into a host agreement

with Yorkville and the land was annexed into Yorkville. Fox Moraine asserts that this is

consistent with the SWMP. FMBr. at 94. Fox Moraine argues that using an accepted definition

of “located” the landfill was located when the planning process began and therefore is consistent

even with the May 2006 amendment. FMBr. at 94.

Fox Moraine argues that Kendall County’s resolution deprives municipalities of the right

to act as siting authorities and as such is contrary to the law. FMBr.2 at 1. Fox Moraine asserts

that the resolution is contrary to the Solid Waste Management Planning and Recycling (415

ILCS 15/1

et seq.

(2008)) in that the resolution contemplates unilateral action by Kendall

County. FMBr.2 at 2. Furthermore, Fox Moraine asserts that Kendall County’s position is

inconsistent with City of Elgin v. County of Cook, 169 Ill. 2d 53, 660 N.E.2d 875 (1995),

---

77

wherein the court condemned the attempts of municipalities to interfere with the siting authority

of their neighbors. FMBr.2 at 3.

Yorkville’s Arguments

Yorkville argues that the express language of the Act indicates that the purpose of the

siting process is to determine that the proposed facility complies with the county’s plan. YBr. at

72-73, citing Residents Against, 293 Ill. App. 3d 219, 22, 687 N.E.2d 552, 555. Yorkville argues

that Fox Moraine correctly noted in the application that Kendall County has a SWMP and that

plan was amended on May 4, 2006. YBr. at 73. Yorkville points out that the amendment

occurred well in advance of the siting application being filed.

Id

. Yorkville contends that the

land on which Fox Moraine proposes to build a landfill is property annexed by Yorkville and is

thus not in an unincorporated area of Kendall County.

Id

. Because the landfill was proposed to

be located in a municipality, Yorkville properly found that Fox Moraine had not met criterion

viii.

Id

.

Yorkville assets that contrary to the admission in the application, Fox Moraine “belatedly

and desperately maintains” that the May 2006 amendment was not a proper amendment to the

SWMP. YBr. at 73. Yorkville contends that Mr. Willis’ testimony relating to the passage of the

amendment is “entirely speculative, unfounded, and outside the witnesses knowledge.”

Id

.

Furthermore, Yorkville argues that the testimony is inconsistent with the facts in the record.

Id

.

Yorkville maintains that the Kendall County meeting minutes (C13764), the signed resolution

adopting the amendment (12143) and the amended Kendall County SWMP (C12069) all show

the resolution was passed and the SWMP amended to reflect the resolution. YBr. at 73-74.

Yorkville points to the testimony of Mr. Church who testified that the SWMP had been amended

in support of the argument. YBr. at 74.

Yorkville argues that the resolution is clear and unambiguous and the Board need not

resort to construction aids to interpret the resolution. YBr. at 75. Yorkville argues that Fox

Moraine’s argument that because the proposed landfill was being discussed, the proposed landfill

was located prior to the May 2006 amendment, is a tortured reading that Kendall County could

not have intended. YBr. at 75. Yorkville argues that under a straight forward interpretation, Fox

Moraine’s proposed landfill was located in Yorkville, which is an incorporated area of Kendall

County and therefore, Yorkville properly found that criterion viii was not met.

Fox Moraine’s Reply

Fox Moraine reiterates the arguments and summary of Mr. Willis’ testimony and that the

SWMP was ambiguous and that the application is consistent with the SWMP. Reply at 49-56.

Board’s Findings

Initially, the Board notes that Fox Moraine argues that the May 2006, resolution to the

SWMP usurps the right of a municipality to local siting under Section 39.2 of the Act (415 ILCS

5/39.2 (2008)) and is therefore contrary to the Act and the Solid Waste Management Planning

and Recycling Act (415 ILCS 15/1

et seq.

(2008)). The Board is granted the authority to review

---

78

local decisions on siting by Section 40.1 of the Act (415 ILCS 5/40.1 (2008)) and that authority

limits the Board’s review to the decision made under Section 39.2 of the Act (415 ILCS 5/39.2

(2008)). Therefore, the Board only looks at the record to determine consistency with the solid

waste management plan and if the local decision was against the manifest weight of the

evidence. The Board does not review the contents of the solid waste management plan for

consistency with the law. Land & Lakes PCB 99-69, slip op. at 23.

The Board finds that the record supports Yorkville’s decision on criterion viii. The

resolution adopted by Kendall County to the SWMP clearly prohibits siting of landfills in

incorporated areas of Kendall County. Fox Moraine argues at length that the terms of the

resolution are ambiguous and that the resolution might not have been properly adopted. The

record contains testimony from Mr. Church, chairman of the Kendall County Board as well as

the SWMP and the resolution. This evidence supports Yorkville’s reading of the resolution.

Therefore the Board affirms Yorkville’s decision that criterion viii was not met by the applicant.

Criteria ii (Design), v (Leak and Spill Protection), and Operator History

Fox Moraine’s Arguments

Fox Moraine recaps the testimony offered by Mr. Drommerhausen, Mr. Moose, and Mr.

Edwards. FMBr. at 55-67; 82-83; 99-100. Fox Moraine maintains that based on their years of

experience these experts found that the application met the criteria.

Id

.

Fox Moraine argues that only two witnesses testified under oath in opposition to these

two criteria and one of those is unqualified due to lack of experience. FMBr. at 102. More

specifically, Fox Moraine argues that Mr. Schmanski’s testimony is lacking as he has never been

involved in stormwater management design for a landfill. FMBr. at 66. Fox Moraine also

discounts Mr. Hyink’s testimony as being based on internet research.

Id

Yorkville’s Arguments

Yorkville argues that a determination on this criterion ii is purely a of matter assessing

the credibility of expert witnesses. YBr. 50, citing Fairview

, 198 Ill. App. 3d at 552, 555 N.E.2d

at 1185; File, 219 Ill. App. 3d at 907, 597 N.E.2d at 1236. Yorkville argues that Fox Moraine

“boasts” that Fox Moraine’s experts identified the site as the “best they had ever seen”; however,

Yorkville asserts the evidence casts doubt on that superlative. YBr. at 50. Yorkville contends

that Mr. Price cited the need for 39 conditions before criterion ii could be met and listed a

sampling of those conditions. YBr. at 50-51.

Yorkville noted that the application planned for no groundwater monitoring wells on the

southern border for 24 years after waste was first accepted and Mr. Ludwikowski commented

this was unacceptable. YBr. at 51. Mr. Ludwikowski also recommended beginning cell

construction at the downgradient point and proceeding upgradient.

Id

. Yorkville contends that

Mr. Moose agreed with these comments. YBr. at 51-52.

---

79

Yorkville also notes that the application proposed to reroute an unnamed tributary of

Hollenback Creek and both the Army Corp of Engineers and the Illinois Department of Natural

Resources expressed concerns. YBr. at 52, citing C11287-90; C15372-15374; C11288-11289;

C15373. Yorkville also relies on Mr. Schmanski’s testimony regarding drainage and stormwater

issues. YBr. at 52.

Yorkville challenges the credibility of Mr. Moose noting inconsistencies in his testimony

and findings in Town & Country. YBr. at 53-54.

Regarding criterion v, Yorkville asserts that Mr. Price found that the applicant had not

met the criterion without imposition of conditions. YBr. at 69. Yorkville argues that Fox

Moraine proposes using temporary storage for leachate and may use clay berms for containment.

Id

. Yorkville argues that Fox Moraine should have committed to using concrete secondary

containment enclosures and a different type of leachate storage tank.

Id,

citing C15920; C19552.

Yorkville argues that, as stated above, the Board may not reverse merely because the

local government could draw different inferences and conclusions from conflicting testimony.

YBr. at 69. Further Yorkville reminds the Board that the Board may not reweigh evidence or

reassess witnesses. Yorkville asserts that there was more than sufficient information for

Yorkville to find that criterion v had not been met and the Board should affirm Yorkville’s

decision.

On the issue of operating experience, Yorkville notes that the siting ordinance required

Fox Moraine to provide information on the proposed operator. YBr. at 77. Yorkville argues that

Fox Moraine failed to meet this criterion in several ways.

Id

. Yorkville argues that first Fox

Moraine misrepresented the operating history of the proposed operator, Fox Valley Landfill

Services.

Id

. Yorkville contends that in the application Fox Moraine “boasted” that Fox Valley

Landfill Services was an experienced landfill operator with an outstanding environmental

compliance record, when in reality Fox Valley Landfill Services has no operating history. YBr.

at 77-78. In addition Yorkville maintains that Fox Moraine refused to disclose the names of Fox

Valley Landfill Services managers, members, and ownership and Fox Moraine failed to attach a

certificate of good standing. YBr. at 78. Yorkville concedes that Fox Moraine identified PDC as

having a 20% ownership stake in Fox Valley Landfill Services.

Id

.

Yorkville argues that in Lowe Transfer, Inc. v. County Board of McHenry County, PCB

03-221 (Oct. 2, 2003), the applicants for a waste transfer station argued that McHenry County

inappropriately considered the inexperience of the operator when examining criteria ii and v.

YBr. at 78. Yorkville opines that the Board disagreed and found the lack of experience was

germane to the decision of the local siting authority.

Id

.

Yorkville argues that Fox Moraine also violated the siting ordinance by not providing

information regarding past violations. YBr. at 79-80. Yorkville argues that Yorkville properly

relied on the lack of experience and Fox Moraine’s failure to provide critical information in

finding against Fox Moraine on the issue of operator experience. YBr. at 80.

---

80

Fox Moraine’s Reply

Fox Moraine argues that the evidence presented by Fox Moraine on criterion ii is

“especially powerful” and was presented by highly respected, educated, and experienced experts

in their fields. Reply at 27. Fox Moraine asserts that Yorkville ignores this evidence almost

entirely in the brief and focuses on the number of conditions recommended by Mr. Price as

evidence that the criterion was not met.

Id

. Fox Moraine agrees that the decisionmaker is not

required to search for conditions that will enable an applicant to meet the criteria; however,

adding conditions to an approval is appropriate.

Id

.

Fox Moraine contends that Yorkville is “grasping at straws” in pointing to evidence in

the record to try and support Yorkville’s decision on criterion ii. Reply at 28-30. Fox Moraine

argues that Yorkville also attempts to dismiss Mr. Moose by challenging his credibility. Reply at

30. Fox Moraine opines that Yorkville’s attempt to impugn the credibility of a highly respected

landfill expert “concedes” Yorkville’s “fear of the testimony” presented by Mr. Moose. Reply at

32. Furthermore, Fox Moraine argues that Yorkville completely ignores the testimony by Mr.

Drommerhausen.

Id

.

Fox Moraine maintains that having ignored all the expert testimony and all of the

scientific evidence, Yorkville is left only with “anti-landfill ‘evidence’ presented by persons

possessing absolutely no relevant credentials” who relied on internet research or common sense

in forming opinions. Reply at 33.

Fox Moraine asserts that Yorkville “falsely states” that Mr. Price found that Fox Moraine

had not met criterion v. Reply at 44. Fox Moraine again argues that Mr. Price’s

recommendation of conditions established that the applicant met the burden under criterion v.

Id

. Fox Moraine contends that the arguments regarding the leachate containment system are

based on a public comment made by a lay person. Reply at 44-45. Fox Moraine maintains that

the leachate system in the application was designed by a landfill design engineer and for

Yorkville to declare the application deficient based on the opinion of a laymen is “preposterous”.

Reply at 45.

As to the issue of operator experience, Fox Moraine maintains that information was not

withheld when filing the application and the operating history of Fox Valley Landfill Services

was not misrepresented. Reply at 57. Fox Moraine argues that Fox Valley Landfill Services is a

new entity and as such has no history to examine.

Id

. Fox Moraine asserts that the evidence

establishes that Fox Valley Landfill Services will draw upon the expertise of PDC in the

operation of the landfill and PDC has a strong history of compliance in operating landfills.

Reply at 58.

Board’s Findings on Criteria ii and v

Operating History Considered.

As an initial note, Section 39.2(a) of the Act (415 ILCS

5/39.2(a) (2008)) allows:

---

81

The county board or the governing body of the municipality may also consider as

evidence the previous operating experience and past record of convictions or

admissions of violations of the applicant (and any subsidiary or parent

corporation) in the field of solid waste management when considering criteria (ii)

and (v) under this Section.

The Board notes that this is not an additional criterion, but rather allows for consideration of an

operator’s experience in examining criteria ii and v, which relate to the design of the landfill

including that the landfill is designed to minimize the danger of accidents, fires and spills. The

Board will therefore examine the record and the arguments made concerning operator history in

the context of criteria ii and v.

Criteria ii and v.

As with prior criteria, Yorkville was presented with substantial

evidence regarding criteria ii and v. And as noted above, Yorkville weighs the evidence,

resolves conflicts in testimony, and assesses the credibility of the witnesses and merely because

the Board could reach a different conclusion, is not sufficient to warrant reversal. City of

Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996; Waste Management, 122 Ill. App. 3d 639, 461

N.E.2d 542; Steinberg v. Petta, 139 Ill. App. 3d 503, 487 N.E.2d 1064 (1st Dist. 1985);

Willowbrook Motel, 135 Ill. App. 3d 343, 481 N.E.2d 1032. Yorkville in fact argues that with

criterion ii, the decision is purely a matter of assessing the credibility of expert witnesses. On the

other hand, Fox Moraine argues that there is no credible evidence in the record that disputes the

qualified experts presented by Fox Moraine and that Yorkville is grasping at straws.

The Board disagrees with Fox Moraine. The record contains evidence that supports

Yorkville’s decision. This evidence includes answers by Fox Moraine’s experts during cross-

examination. The Board notes that Yorkville, in the brief, lists a number of deficiencies in Fox

Moraine’s application, including the design deficiencies highlighted by the conditions in the

Price Report, and issues pertaining to the relocation of the unnamed tributary to Hollenback

Creek .

See e.g.

C10650; 10762; 11287. Furthermore, questions were raised concerning not

only the operator but actual operations of the facility.

Design Deficiencies.

The Price Report conditions cited by Yorkville as evidence to

support the denial of siting indicate deficiencies pertaining to liner design and integrity of liner,

design of final cover system and landfill slope stability analysis. YBr. at 50-51 and C18742.

The Price Report conditions 2.1 through 2.3 address additional liner testing requirements, leak

location survey and a stress analysis study to ensure acceptable liner design and integrity.

C11360-66. The Price Report condition 2.4 deals with prevention of clogging of soil cover

above the drainage layer in the final cover system. C11377-78. The Price Report conditions 2.8

through 2.11 add several requirements concerning the landfill slope stability analysis. C11371-

74. While the deficiencies individually may appear to be minor in terms of the overall design,

the Board finds that when the deficiencies are considered together they support Yorkville’s

decision regarding the adequacy of Fox Moraine’s landfill design to protect public health, safety

and welfare.

Relocation of Unnamed Tributary to Hollenback Creek.

The record contains evidence

that Fox Moraine’s design included the relocation of an unnamed tributary to Hollenback Creek.

---

82

Fox Moraine has withdrawn the permit that would allow rerouting the tributary of Hollenback

after the Army Corps of Engineers stated that “practicable alternatives may exist for the

development of this facility that would have less adverse impact on the aquatic ecosystems, such

as reconfiguration of the landfill to avoid or minimize stream and wetlands impacts . . ..”

C15372-374; C11287-90. In response to questions about the tributary relocation and the Army

Corp of Engineers’ statements, Mr. Moose indicated that an alternative analysis “was done” but

Fox Moraine has not yet responded to the Army Corps of Engineers. C11290-11291. Mr.

Moose indicated that Fox Moraine was focusing on siting and then would address the issues with

the Army Corps of Engineers if the landfill is sited. C11291. The Board finds that this evidence

also supports Yorkville’s decision that the landfill design did not protect the public health, safety

and welfare.

Operator History.

At hearing, Mr. Edward testified as to the operating history of Fox

Valley Landfill Services, which would be the operator of the proposed facility. Mr. Price in his

report found Mr. Edwards was less persuasive concerning the plan of operations and the

obligations of the operations. C18741. Mr. Price noted that Mr. Edwards’ testimony highlighted

the paradox that with more experience there is more history of regulation and enforcement to

judge an operator.

Id

. Mr. Clark noted that Fox Valley Landfill Services has no operating

history.

Yorkville argues that the lack of operating history can be considered when reviewing

criteria ii and v. YBr. at 78, citing Lowe Transfer, PCB 03-221, slip op. at 27-28. The Board

agrees with Yorkville that the lack of operating history can be weighed when considering criteria

ii and v. Further, the Board finds that the evidence regarding violations by PDC can also be

considered. Thus, the Board finds evidence in the record on the operating history of the operator

which Yorkville could have relied upon in finding that criteria ii and v were not met when

considered in relation to the history of the proposed operator of the landfill.

Conclusion on Criteria ii and v.

A decision is against the manifest weight of the

evidence if the opposite result is clearly evident, plain, or indisputable from a review of the

evidence. Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Harris, 115 Ill. App. 3d

762, 451 N.E.2d 262. The local decisionmaker is to weigh the evidence, resolve conflicts in

testimony, and assess the credibility of the witnesses. The Board finds that the record contains

support for Yorkville’s decision on criterion ii and v. The opposite conclusion is not clearly

evident, plain, or indisputable. Therefore, the Board affirms Yorkville’s finding that Fox

Moraine’s application failed to meet criteria ii and v.

CONCLUSION

The Board has reviewed the arguments, testimony, and record in this landfill siting

appeal. The record is substantial and represents several weeks of public hearings before the

Board and Yorkville. A careful review of that record demonstrates that the proceedings before

Yorkville were fundamentally fair. More specifically, the Board is not persuaded that the

council members demonstrated a prejudgment or bias on the landfill application. The Board also

finds that the record establishes that the council members had sufficient time to deliberate, made

their decision based on the record, and properly voted to deny siting.

---