Stop the Mega-Dump Brief Filed

Editor’s note: Mac McIntyre is a member of Stop the Mega Dump. The following is an abbreviated version of the full document which can be viewed here (Stop the Megadump Brief). Must read material.

The brief has been filed in the appeal filed with the Illinois Appellate Courts Second Judicial District from an Order of the Pollution Control Board (“PCB”) affirming the decision of the DeKalb County Board (“County”) granting the application of Waste Management of Illinois, Inc. (“WMII”) for local siting approval of vertical and horizontal expansion of the DeKalb County landfill. Stop the Mega Dump (“STMD”), a citizens’ group, claimed that the siting proceedings before the County Board were fundamentally unfair and that the decision of the County Board was against the manifest weight of the evidence. The PCB denied STMD’s Motion for Reconsideration.

The issues presented for review of the Appellate Courts are:

1. Did the PCB err in finding that the rules and procedures of the DeKalb County pollution control facility siting ordinance, which prohibited participation in the siting hearing by the general public, were not fundamentally unfair?
2. Did the PCB err in finding that WMII’s private tours for county board members to another similar landfill did not render the proceeding fundamentally unfair?
3. Did the PCB err when it found that the County Board did not actually prejudge the application?
4. Were the fundamentally unfair aspects of the siting proceedings harmless error?

WMII seeks to expand the DeKalb County landfill. The existing landfill is located northeast of the intersection of Somonauk and Girler Roads in unincorporated DeKalb County. The existing landfill consists of three sections, an active area, an old area, and the north area. The old area consists of twenty-four acres which are believed to have operated between 1958 and 1974. The north area is immediately to the north of the old area and consists of approximately thirty-eight acres. It was permitted in 1974 and filling was accomplished by the trench fill method up to the ground surface. The north area was constructed using the in-situ clay liner. The active area was permitted in 1989 and continues to receive waste. The existing landfill is immediately west of Union ditch, which drains an agricultural area of approximately thirty-two square miles in east central DeKalb County and west central Kane County. The Union Ditch system eventually flows into the Kishwaukee River.

There are two areas near the existing landfill where groundwater has been negatively impacted by the landfill, and which are undergoing remedial/corrective action. As a result, two ground water management zones (GMZ) have been established.

Between July 2009 and November 2009, WMII conducted five private tours, during which fifteen of the twenty-four county board members visited WMII’s Prairie View landfill in Will County. In all cases, transportation to and from the DeKalb County government offices in Sycamore, Illinois was either provided by WMII or reimbursed by them. WMII representatives accompanied county board members from door to door, lunch was provided, questions were answered, and the public was excluded.

County Board by WMII during the host agreement negotiations and the private tours of WMII’s Prairie View facility 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, this Court 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. While the receipt of host fee revenues is not in and of itself a disqualifying bias, the fact that the County Board had, months before the public hearing on the siting application, committed to fund its desperately needed jail expansion with those revenues is persuasive evidence of prejudgment.

The County Board 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 $600,000.00 per year to house its jail inmates in other counties due to its own inadequate jail. The February 2, 2010 Minutes of the County Law and Justice Committee contemplated authorizing the bonds for the jail expansion shortly after conclusion of the siting hearing. Clearly the landfill siting proceeding and the expansion of the jail were connected projects, proceeding on tandem timelines, with the jail expansion driving the outcome of the siting proceeding.

The comments of County Board members in the summer of 2009, after the Host Agreement had been approved, while the WMII private tours were going on and while the issue of the jail expansion was already on the table, that they had no choice but to approve a landfill expansion and that the expansion was a “done deal” are completely consistent with a conclusion that prejudgment had occurred.

Whether that prejudgment resulted from a sense of financial desperation, fear of the consequences of not approving expansion, or County Board members being won over during their private tours, is irrelevant. It is still prejudgment regardless of the motive behind it.

The final County Board vote on the siting application was sixteen for and eight against the net result is that almost half of the votes in favor of approval have documented expressions of prejudgment or bias against the opposition.

The PCB concluded, “It was more than reasonable for the County Board to find that the expansion was designed, located, and proposed to be operated so that the public health, safety, and welfare will be protected.” This falls a far cry short of the Supreme Court’s mandate to the technically qualified PCB to conduct a hearing and to use that technical expertise to examine the record to determine whether the same actually supports the local decision.

A second public health, safety, and welfare issue dealt with hydrogen sulfide. What is known is that the proposed facility is very close to the Village of Cortland and to the elementary school in Cortland. WMII acknowledges previous hydrogen sulfide problems at the site but indicates the same have been resolved.

Nonetheless, multiple citizens and Dr. Serewicz testified that hydrogen sulfide odors in the vicinity of the existing landfill remain pervasive. It is interesting that while the County Board dismissed the citizens’ hydrogen sulfide complaints and seemed to accept WMII’s explanation, siting approval was conditioned upon WMII maintaining an ongoing and continuing monitoring program for hydrogen sulfide emissions around the perimeter of the landfill.

Lastly, it is undisputed that the seismic safety factors relied upon by the design engineer were increased by government regulators due to an earthquake after the siting application had been written. Even the County Staff report acknowledges that whether or not the design still maintains an adequate seismic safety factor with the new regulatory standards is speculative.

Given the close and contested issues in this case and the lack of definitive understanding with respect to three critical public health, safety and welfare issues, a problem compounded by the PCB’s refusal to apply any technical expertise, the prejudgment in this case, can hardly be considered a no harm, no foul situation.

It must be emphasized that WMII aided and encouraged the County Board’s prejudgment. For that reason, WMII hardly has cause to complain about unfairness or harmless error if the local decision is reversed.

For the foregoing reasons, Stop the Mega Dump prays that the Decision of the Pollution Control Board affirming the local approval of the siting request be reversed.