ELGIN – After months of delays, the 2nd District Appellate Court heard oral arguments Thursday for and against the public hearing process that led to the pending decision to expand the DeKalb County Landfill.
Since the DeKalb County Board’s May 2010 vote to allow the landfill expansion after a public hearing, the residents’ group Stop the Mega-Dump has contended the process was unfair.
The Illinois Pollution Control Board ruled there was no wrongdoing in the public hearing process, so the Stop the Mega-Dump group appealed to the courts.
Dan Kenney, who spearheads the Stop the Mega-Dump group, said he expects a decision to be rendered in one to three months.
“It’s obviously a complicated issue, and I look forward to see what they have to say,” Kenney said of the ruling. “It’s a justice issue. We want people to be on equal footing with the landfill companies.”
George Mueller, who represented the group, argued the public hearing process was unfair because “chilling” ordinance language that made it seem as though only residents living near the landfill could fully participate deterred other concerned residents from attending.
The hearing officer later waived restrictions and allowed everyone to participate, but Mueller said the ordinance on face value was unfair.
Attorneys representing the County Board, Waste Management and the Illinois Pollution Control Board countered that the public hearing procedure went above and beyond state requirements by allowing those in attendance to cross-examine experts by submitting written questions to the hearing officer and evidence for consideration.
The three-judge panel questioned both sides, asking Mueller for evidence that showed the Pollution Control Board erred in validating the county’s process. They also asked the defending attorneys what they believed public hearings are supposed to accomplish.
The second point of contention argued dealt with the private tours some County Board members received from Waste Management officials before the public hearing. Mueller argued those tours gave Waste Management the chance to present information away from public scrutiny and shape board members’ opinions before a public hearing ever took place.
The defending attorneys said because the tours were provided before a request to expand the landfill was ever filed, it could not be considered inappropriate. Clifford Berlow, with the Illinois Pollution Control Board, said ruling against pre-filing contact such as those tours between applicants and the agencies they seek approval from would mean Waste Management would have to meet every request for a tour or have no discussions before making a filing, which is not feasible.
But Mueller said situations such as the tours are a gray area that should be dealt with on a case-by-case basis.
“The trend has been to see how we can push the limit of fairness,” Mueller told the judges. “How much are we going to let the window open?”
Mueller also argued board members made up their minds before the public hearing, as evidenced by their approval of a report that identified the tipping fees from a landfill expansion as the revenue source to expand the county jail.
But John Farrell, who represented the DeKalb County State’s Attorney’s Office, said other revenue options such as bond sales and tax increases were being weighed and no funding source has been officially approved even now.
Despite no formal approval of a revenue source, the County Board has progressed with jail expansion plans and members have mentioned the need for a landfill expansion to complete the jail project.
Don Moran, who represented Waste Management, said the bottom line was there was no inappropriate communication, no exclusion of public input and no faulty procedure. The county even received and recorded more than 90 written public comments in a 30-day window after the hearing.