The following excerpts are from the Opening Brief, filed with the Illinois Pollution Control Board, by George Mueller, attorney for Stop The Mega-Dump, a grassroots organization of DeKalb County citizens opposed to Waste Management of Illinois’ siting application to expand the landfill in Cortland. The full brief is viewable as a PDF file, here. (54 pages)
This appeal arises out of the DeKalb County Board’s (“the County”) granting of local siting approval for vertical and horizontal expansion of the DeKalb County Landfill. Waste Management of Illinois, Inc. (“WMII”) seeks to expand an existing leaking landfill, the expansion to include a vertical expansion over an unlined, pre-Subtitle D unit. The existing facility is documented as impacting ground water to both the east and south. Even though it has been receiving nominal amounts of waste for the last several years, the landfill has experienced hydrogen sulfite problems, which are a public concern, in large part because of the landfill’s close proximity to an elementary school.
Stop the Mega-Dump (“STMD”) opposes the decision to grant local siting approval for the expansion of this troubled facility as being against the manifest weight of the evidence. Moreover, as discussed below, STMD objects because the proceedings were not fundamentally fair, in that there were numerous prejudicial ex parte contacts between the decision makers and the applicant, including WMII-sponsored private tours of another WMII facility, similar to the proposed expansion, for county board members and other county employees.
Additionally, there was, prior to the actual public hearing in March 2010, a consistent effort to discourage public participation. Those efforts included a siting ordinance which improperly limited public participation, as well as implementation of unnecessary hurdles for the public in accessing and making copies of the siting application.
Lastly, numerous county board members made public and private expressions indicating that the siting issue had been pre-decided prior to the commencement of the public hearing. The reason for this in large part is that the County desperately needed the host fees from an expanded landfill to finance a long overdue jail expansion, and the County actually identified and ear-marked those host fees in advance as the only feasible means for financing the jail expansion, even before the siting application was filed.
Fatally flawed process fundamentally unfair
STMD has only one issue with how the hearing officer conducted the hearing. His belated attempt to interject a modicum of fairness into a process that was already fatally flawed should be applauded. Unfortunately, the real damage was done before the public hearing began. However, the hearing officer did make one error which further rendered the proceedings fundamentally unfair.
At the close of the public hearing on March 11, 2010, the hearing officer directed the parties, including STMD, to file their post hearing briefs within twenty-one days, on or before April 2, thereby depriving them of the benefit of the full thirty days of statutory post hearing public comment time provided at 415 ILCS 5/39.2(c). (C 7513).
Prior to the final decision being made by the County, the “County Staff”, which included among others, Chris Burger, Ray Bockman and Renee Cipriano, issued a report with proposed findings of fact and law. Interestingly, the report did not even acknowledge the participation of STMD, leaving the citizens‟ group entirely out of the recited list of participants. (C 7825).
In defending the hearing officer‟s decision to require briefs by April 2, the county staff report noted that, “all evidence was entered into the record as of the close of the local siting hearings. While the public comment remains open until April 12, 2010, public comments are not given the weight of evidence.” (C 7829)
The report goes on to note that all “relevant evidence” has been entered into the record as of the close of the public hearings. (C 7830)(emphasis added).
The foregoing notwithstanding, the county staff report nevertheless discusses, at length, evidence entered into the record as public comment by WMII on April 9, 2010, consisting of hydrogen sulfide monitoring results at the site, conducted through April 6. (C 7850). It is inexplicable why this one particular public comment was deemed relevant and given “the weight of evidence” when apparently nothing else submitted after March 11, 2010, was considered.
[…] The Articles of Rules and Procedures were published on the County’s website (even though the siting application was not), and we will never know who looked at these, determined that they would not be allowed to participate, and went on to other things. The difficult thing about attempting to quantify the damage caused by a chilling effect is that we are trying to count people who are not present precisely because their participation was discouraged, and in fact, was for all practical intents and purposes, prohibited. Those that initially appeared and attempted to participate in this case did so in spite of the rules barring their participation. We will never know who or how many members of the public failed to participate because of the publicly published rules.
An announcement on the first day of the public hearing that the rules barring participation by most members of the public would not be enforced, is not a cure.
Even those that did find out on the first day of the public hearing that they would be allowed to participate were deprived of any meaningful opportunity to prepare, since they would have believed up until that point that they would not have been allowed to participate except for giving public comment.
[…] What makes all of this unnecessary and troubling is the fact that WMII filed, in addition to hard copies, electronic copies of their siting application on DVDs which were given to all the county board members. After much clamor, two citizens were able to obtain copies of these DVDs, Ray Bockman, testified that it never occurred to him to make electronic copies of the application available to the public in lieu of the more expensive (and more cumbersome) hard copy. (Bockman Dep. Pg 45). Moreover, he never arranged with anyone to provide such copies to the public. (Bockman Dep. Pg. 43, 44). The siting application itself was also not placed on the County‟s website, even though (ironically enough) the rules and regulations containing the improper restriction on participation were. Bockman‟s only explanation was that placing the siting application on the website was not required. (Bockman Dep. Pg. 38).
The difficulties in the record with members of the public viewing and copying the siting application might, by themselves, be deemed as harmless error, if the remainder of the record was pristine on fundamental fairness issues. However, in this case, these difficulties demonstrate a continuing pattern on the part of the County of discouraging public participation, and as such, their cumulative effect should be considered. The Board has previously held that fundamental unfairness can be cumulative. American Bottom Conservancy v. Village of Fairmont City, PCB 00-200, slip op. at 10 (October 19, 2000).
[…] The pre-filing review in this case was a further ex parte communication which renders the proceedings fundamentally unfair.
While a pre-filing review between the County technical staff and WMII was authorized in the County Siting Ordinance, this does not render it necessarily appropriate. Although pre-filing reviews have been sanctioned in other cases, the review in this case was unlike those that have been sanctioned. Historically, the pre-filing reviews which have been sanctioned included complete separation between the reviewers and the decision makers. In Residents Against a Polluted Environment v. County of LaSalle, PCB 96-243 (Sept 19, 1996), the county‟s expert consultants conducted a review of the siting application and prepared a report thereon. This review was conducted after the filing of the application, but that distinction is not material for this analysis. In Residents the county’s Environmental Director, Susan Grandone-Schroeder, also participated in the review process. The Board found that because she was an employee of LaSalle County, acted on behalf of the county at the hearing, and was responsible for advising county board members on the merits of the application, she was capable of ex parte contacts and could not acquire information beyond that in the record, or from outside the public hearing process. (PCB 96-243 slip op. at 11).
Contrast that with Sierra Club v. Will County Board, PCB 99-136 (Aug 5, 1999), where this Board approved a pre-filing review, the Board expressly conditioned that approval on the fact that no one directly associated with the decision maker was involved in the review process, noting, “As the Will County Board notes, the County staff and consultants neither voted on the siting approval, nor participated during the Will County Board‟s deliberations.” (PCB 99-136, slip op. at 12). Significantly, in Sierra Club the attorney for the county staff was not the attorney who advised the county board. Here, Ms. Cipriano actively participated in both the pre-filing review, as well as the siting hearing, in contravention of the rule of law announced in Sierra Club.
In the instant case the record reveals that both the County administrator, Ray Bockman, and the County Environmental Attorney, Renee Cipriano, actively participated in the pre-filing review. Moreover, Bockman testified that he reported on a daily basis to the county board chairman. The county board Chairman and Bockman both testified that Renee Cipriano was the county board‟s attorney and her job was to advise the county board throughout the siting process. Since both Mr. Bockman and Ms. Cipriano enjoy at least the same degree of connection to the county board and the decision making process as Susan Grandone-Schroeder did to the LaSalle County Board in Residents Against a Polluted Environment, this pre-filing review is a prejudicial ex parte contact. To the extent that Bockman and Cipriano came into the possession of information not available to the general public during the pre-filing review, the contact is presumptively prejudicial.
The County Board actually prejudged the application.
The cumulative effect of the mini hearings in 2009, the private tours of WMII‟s Prairie View Facility, and the pre-filing review had clearly won the County over before the official siting hearing ever began on March 1, 2010. In weighing the cumulative effect of the improper ex parte contacts previously discussed, the Board should consider those contacts in the context of the County‟s desperate need to obtain expanded landfill host revenues to fund the county jail expansion. The law is well established that the receipt of host revenues and other economic benefits is not, per se, fundamentally unfair. However, in this case, the County was all but spending those host revenues before the siting application was even filed. The County passed a resolution in the fall of 2009 expressing a need for the jail expansion and identifying host revenues from an expanded landfill as the only feasible means of funding that expansion. The County was spending $600,000 per year to house its jail inmates in other counties due to its own inadequate jail. The minutes of the Law and Justice Committee meeting of February 2, 2010, (one week before the start of the landfill siting hearing) are extremely illustrative.
Summarizing the report of the County administrator to the Law and Justice Committee, the minutes state, “Mr. Bockman said that in February 2010, we began the process, in March 2010 we will hold the public hearings, and in April there will be the resolution authorizing the bonds. We will then be in line to issue May 1, 2010, at historically low rates.” (Allen Dep. Ex. 1). These statements were made after Mr. Bockman had advised the committee of the filing of the landfill application. Clearly, the landfill siting proceeding and the expansion of the jail were connected projects, proceeding on tandem timelines.
It is, therefore, not surprising that as early as a year before the start of the actual siting hearing, county board members were making statements that suggest the County had no choice but to approve a landfill expansion. […]
Opening Briefs filed by Stop The Mega Dump; the DeKalb County Board; and Waste Management of Illinois are available for public inspection, here.
The decision of the Illinois Pollution Control Board on the appeal of Stop The Mega-Dump v. County Board of DeKalb County, Illinois and Waste Management, of Illinois Inc. (Case No.: PCB 2010-103) is scheduled for March 17, 2011.
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