NOTICE OF FILING
BEFORE THE ILINOIS POLLUTION CONTROL BOARD
I. Introduction
E. Operating Record
IV. Conclusion
ATTORNEY’S CERTIFICATE OF SERVICE

BEFORE THE ILINOIS POLLUTION CONTROL BOAR)

RECE~VE~

CLERK’S OFFICE

ROCHELLE WASTE

DISPOSAL, L.L.C.

)

FE3172004

Petitioner,

)

No. PCB 03- 218

STATE OF ILLINOIS

PoJ1ut~onControl Board

)

(Pollution Control Facility

)

Siting Appeal)

)

CITY COUNCIL OF THE CITY OF

)

ROCHELLE, ILLiNOIS,

)

Respondent.

)

NOTICE OF FILING

TO:

Counsel or Parties on attached Certificate ofService.

YOU ARE HEREBY NOTIFIED, that onFebruary

13, 2004, we filed an original

and nine copies ofthe attached Petitioner’s.Reply Briefwith the Illinois Pollution Control

Board by Federal Express delivery,

a copy ofwhich is herewith served on you.

ROCHELLE WASTE DISPOSAL,

L.L.C.

ByT1~2~?

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735

Vistagreen Way

P.O.

Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER.

ATTORNEY’S CERTIFICATE OF SERVICE

The undersigned, being first duly sworn on oath, depose and say that I am an

attorney and served the foregoing instrument upon the within named:

Brad Halloran

Illinois Pollution

Control Board

100 West Randolph Street

11th Floor

Chicago, IL 60601

Alan Cooper, Esq.

Rochelle City Attorney

400 May Mart Drive

P.O. Box 194

Rochelle, IL 61068

Richard Porter, Esq.

Charles Helsten, Esq.

Hinshaw &

Culbertson

100 Park Avenue

Rockford, IL 61101

George Mueller, P.C.

501

State Street

Ottawa, IL 61350

by sealing a true and correct copy ofthe same in an envelope, addressed as shown above,

with sufficient United States postage and by depositing said envelope, so sealed and

stamped, in the United States Mail at Rockford,

Illinois, at or about the hour off

o’clock p.m., on the /J~dayofFebruary, 2004.

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735 Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

00348296.DOC

Michael F.

O’Brien

RECE~VED

CLERK’S OFFICE

BEFORE

THE ILINOIS POLLUTION CONTROL BOARD

FEB

172004

ROCHELLE WASTE DISPOSAL, L.L.C.

)

Petitioner,

)

No. PCB 03- 218

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

CITY COUNCIL OF THE CITY OF

)

ROCHELLE, ILLiNOIS,

)

Respondent.

)

PETITIONER’S REPLY BRIEF

Introduction

The briefs filed by the City ofRochelle (“the City”) and the Concerned Citizens

of Ogle County (“the CCOC”) underscore the essentially political nature of the decision

made in this case and why the Board

and the courts should require that local siting

authorities act in an unequivocally “quasi-judicial” capacity unswayed by “public

clamor.”

See, e.g., People ex rel.Wangelin v.

St. Louis Bridge Co., 357 Iii. 245, 254,191

N.E. 300, 304 (1934).

On each of the criteria the City and the CCOC make arguments

that

could be made in essentially

any

landfill siting case, confident that the legislative

actions ofthe City will be upheld under the “manifest weight ofthe evidence” standard of

review as long as any colorable defense ofthat action can be mounted.

Thus, on need,

design, location and operation,

incompatibility and

effect on property value and traffic,

the City and the CCOC simply trot out the generic

objections always raised

—

objections

which the Board and the courts usually recognize as valid whenever siting is denied and

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

unfounded whenever siting is approved.

Thus, as long

as the siting process is permitted

to be

legislative rather than adjudicatory, the process provides no true safeguard for the

environment because of all ofthe reasons set forth in the Petitioner’s initial Post-Hearing

Brief.

Fundamental Fairness

Both the CCOC and the City contend that People ex

rel. Klaeren v. Village of

202 Ill.2d 164,

781 N.E.2d 223, 269 Ill.Dec. 426 (2002), does not require any

change in how local siting hearings are conducted and that local legislators are free to

base such decisions

on legislative considerations and even “claim theirpolitical reward”

(CCOC Brief

& 3) where they succumb

to “public clamor and outcry.”

People ex rel.

Wangelin v.

St. Louis Bridge Co., 357 Ill. 245, 254,

191 N.E. 300,

304 (1934).

Respondent’s Brief47-48.

Although Klaeren left undefinedthe

exact

contours ofthe

process due parties to quasi-judicial proceedings before municipal bodies, it certainly

made clear that they have a right of due process which precludes local decisionmakers

from engaging in

exparte

communications

or announcing their decision is based upon

“the expressed public will.”

CCOC Brief 1.

The reasons for classifying zoning hearings that deal with special use

applications as administrative or quasi-judicial are manifest.

In these

hearings, the property rights of the interested parties are at issue.

The

municipal body acts in a fact-finding capacity to decide disputed

adjudicative facts based upon

evidence adduced at the hearing and

ultimately determines the relative rights ofthe interested parties.

As a

result, those parties must be afforded the due process rights normally

granted to individuals whose property rights

are at stake.

Klaeren 202

Ill.2d at

183,

781 N.E.2d at 234,

269 Ill.Dec. at 437.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

Where, as in this proceeding, decisionmakers announce immediately after their decision

that they have voted in

accordance with the public clamor, that creates an

obvious

appearance of impropriety which cannot be dispelled by the decisionmakers’ self-serving

assertions that they were uninfluenced by matters outside the record or by the

exparte

political pressures brought to bear upon them.

“The right to trial by an impartial

decisionmaker is

a basic requirement of due process.”

Keith v. Massanari,

17 Fed.Appx.

478, 2001

965106

(7th

Cir.).

“At the heart of due process

is the right to a fair hearing

conducted by an impartial tribunal.”

Bakalis

v. Golembeski,

35 F.3d 318,

323

(7t~~

Cir.

1994).

“Due process oflaw, by necessity, requires an impartial decision maker..

Kraut v. Rachford,

51 Ill.App.3d 206, 216,

366 N.E.2d 497,

504,

9 Ill.Dec. 240,

247

(1st

Dist.

1977).

Both the CCOC and the City repeatedlyrely upon the decisionmakers’ self-

serving statements as a basis for suggesting that they were not “influenced” by those

political pressures and

exparte

communications (CCOC Brief4), that those contacts

supposedly “had no impact” on their decision (Respondent’s Brief 3, n. 2) and that they

did not consider the various

exparte

contacts to be “evidence.”

Respondent’s Brief 3,

35.

Supposedly,

although the Petitioner was precluded from inquiring as to what

exparte

communications were considered (Tr.

73-75),

the decisionmakers were

permitted to testify that they maintained “an open mind throughout the hearing process”

(Tr.

120), that the

exparte

communications were no different than what they heard

during the hearing (Respondent’s Brief 31

& 35) and that they did not consider what they

heard through

exparte

communications

to be

“evidence.”

Respondent’s Brief 4-7.

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Compounding this problem, the Petitioner was restricted in its

effort to show the

fact

ofsuch

exparte

communications.

For example, the City contends that Councilman

Bubik was “only” approached by three people after the application was filed and before a

decision was rendered (Respondent’s Brief 3), but he admitted that during his deposition

he had testified that he did not remember how many people had contacted him to express

their opposition to

the landfill after the hearing began, and Mr. Bubik had testified that he

didn’t recall if it had been as many as 20 people or even as many as 100 people.

Tr. 67-

72.

Mr. Bubik doubted that it would have been as many as 1,000 people, but his

deposition testimony clearly impeached his

statement during the hearing that he had

not

been contacted by other landfill opponents after the hearing began.

Nevertheless, the

PCB Hearing Officer suggested that there had been no impeachment and would not allow

Councilman Bubik to be asked how manytimes he had been so approached after he had

conceded that his denial of any such approach was inconsistent with his deposition

answers.

Tr. 7 1-72.

Similarly, although the Petitioner could not inquire as to what parts

ofthe hearing the decisionmakers actually attended or what evidence they considered, the

decisionmakers were permitted to testify that they did not consider the

exparte

communications to

be evidence (Tr. 87,

123-24, 13 3-34 &

142) and that the

exparte

communications merely expressed the same opposition they supposedly heard during the

hearing itself.

Respondent’s Brief 31.

Even though the City had admitted that

Councilman Kissick was contacted approximately six times by CCOC President Frank

Beardin after the application was filed, Mr. Kissick and Mr. Bubik attempted to retract

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

that admission by claiming that neither any longer recalled whether such communications

had taken place.

Tr.

116-117 &

197-98.

Although the City claims there is no evidence that Councilman Bubik actually

read the Florida newspaper article

which asserted, contrary to the record in this

case,

that landfill liners

always

leak (Respondent’s Brief 4)

the Petitioner’s offer ofproof

established that Mr. Bubik had in fact read the article

and

that it did indeed influence his

decision.

Tr.

72-79.

As far as the reconsideration meeting on April 28,

2004, is concerned, the Board

should clearly determine that RWD‘s attorney, John Holmstrom, was informed by the

City’s attorney, Charles Helsten, that no

action would be taken by the City Council that

evening and that any reconsideration would have take place on the following Wednesday.

Mr. Holmstrom testified to that and, more significantly,

prepared a contemporaneous

memorandum ofthe conversation which set forth precisely that description ofthe

conversation.

Petitioner’s Exhibit 22.

Mr. Helsten, on the other hand, in

his

initial

description ofthe communication, described it as merely leaving a “phone message” for

Mr. Holmstrom.

That description is set forth in Respondent’s Request to

Admit to

Petitioner signed by Mr. Helsten.

Petitioner’s Exhibit 23.

Although Mr. Helsten

attempted to suggest that attorney Richard Porter had prepared the request to

admit and

that there had simply been a miscommunication between him and Mr. Porter, the

contemporaneous documentary evidence supports Mr. Holmstrom’s version of the

conversation (which was a conversation, not

a phone message as Mr. Helsten had initially

contended) and is much more consistent with RWD‘s failure to have counsel at the

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PAPER

meeting

—

a meeting which RWD had been informed would involve no action or decision

by the Council.

Both the CCOC

and the City contend that the Board is bound by existing

precedent to disregard the Petitioner’s suggestion that siting hearings should be treated as

purely quasi-judicial proceedings.

The Petitioner disagrees with that contention

and

suggests that Klaeren has changed the law in this

area and that the Petitioner is properly

contending for a revision ofthe “prejudice” standard in order that local

siting hearings

are

conducted with fairness and due process.

III.

The

Criteria

Criterion (i)

—

Need

The City and the CCOC use a series ofgeneric, nitpicking objections to suggest

that the City’s decision on Criterion (i) was not against the manifest weight of the

evidence.

They are aided in that effort by both the vagueness ofthe statutory criterion

itself and the uncertain precedent interpreting the need requirement.

The CCOC in effect

concedes that RWD established need because obviously

everyone, including the Board, knows that regional facilities such as proposed in this case

are necessary.

The CCOC effectively concedes that issue and argues, contrary to

precedent (See, e.g., Metropolitan Waste Systems,

Inc. v.

Illinois Pollution Control

Board, 201

Ill.App.3d

51, 55, 558

N.E.2d 785, 787,

146 Ill.Dec. 822,

824

(3~’DjSt.

1990)), that the applicant is not

entitled to define a service areawhich quite obviously has

need ofdisposal capacity.

The CCOC argues that it is not surprising that RWD’s need

expert, Sheryl Smith, determined that the proposed service areahad need for the facility:

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PAPER

since by including metropolitan Chicagoland in the service area and

excluding those counties where there is substantial sited capacity, one can

always guarantee

the outcome of this computation.

CCOC Brief

(emphasis added).

Both the City and the CCOC, relying on the vagaries ofthe law

in this area, argue that

Ms.

Smith should have considered proposed facilities which have not yet received an

IEPA permit even though both the Board and court decisions have suggested that such

unpermitted capacity is too speculative to be considered in a need analysis.

See,

e.g.,

Tate v. Pollution Control Board,

188

Ill.App.3d 994,

1019-20, 544 N.E.2d 1176,

1193-

94,

136 Ill.Dec. 401, 418-19

(4th

Dist.

1989) (unpermitted capacity “was not a fact, but

merely an expectancy...

and

such a capacity should not be considered in determining”

need).

The CCOC and the City are nevertheless confident that the decision will be

upheld because the Board has both upheld the denial of siting where proposed, but

unpermitted, facilities were

not

considered in an

applicant’s need analysis (See,

e.g.,

CDT

Landfill Corp v. City ofJoliet, PCB 98-60, **9 (1998)) as well as upheld siting

approvals where

objectors have suggested that need had not been established on the basis

ofproposed landfills which had not yet “been granted an

operationalpermit.”

Gere

Properties, Inc.

v. Jackson County Board, PCB 02-201,

**1516

(2002).

Thus,

authority can be dredged up

for either position, which means that the City’s

political decision in this case could be upheld regardless ofthe evidence and in the face

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

ofan obvious need for such a regional facility.

Ms.

Smith properly did not consider

unpermitted capacity.

Making claims that could be made with respect to essentially

any

need analysis,

the City and the CCOC inaccurately characterize and nitpick Ms.

Smith’s need analysis:

Ms.

Smith was paid to testify (Respondent’s Brief 13);

Ms.

Smith has determined that there was need in connection with each of

the

13 landfill reports she

hasprepared

(Ibid.);2

Ms.

Smith did not calculate the precise dimensions and “geographic

center”

—

whatever that

—

ofthe service area (CCOC Brief 8; Tr. 2/25

88);

Ms. Smith supposedly “understated” the projected waste receipts at the

facility (Ibid. Tr. 2/25 59-60), which would ofcourse only increase, not

decrease, the need for the facility and might slightly extend its

operating

life;

Ms.

Smith’s conclusions regarding “the historical waste stream.

were

not verified by her data” (CCOC Brief 8)

—

an ominous-sounding

accusation, which really only means that Ms. Smith obviously relied on

information provided by RWD as to the historical source ofwaste

disposed of at the facility (Tr. 2/25

69);

Ms. Smith supposedly concluded “that

100

ofthe waste generated in the

service area originated in Rochelle” (CCOC Brief 8), a claim which is

simply not true and not supported by the transcript (Tr.

2/25

73-75);

Ms.

Smith’s report supposedly stated that the Will County Landfill would

be restricted to waste from within that county, and Ms.

Smith supposedly

“admitted on cross-examination” that Will County could also take waste

from “communities that overlap the countyboarders”

—

a fact plainly set

The CCOC’s counsel,

George Mueller,

is well aware that unpermitted capacity should notbe considered

because that is precisely the position that he and his expert (the same consulting firm advising the City in

these proceedings, Envirogen) took in recent siting proceedings in Livingston County Illinois

—

that “it

not a sound or even appropriate practice to consider speculative capacity fromlandfills which are not yet

permitted in doing a needs analysis.”

See ttanscript excerpt attached hereto as Exhibit

The City fails

to mention that Ms. Smith declined to participate in connectionwith two landfill siting

applications as to which she was of course not asked to prepare a report.

Obviously, expertwitnesses

are

rarely asked to prepare formal reports where their preliminary conclusions

are unhelpful to the retaining

party.

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PAPER

forth in Ms.

Smith’s report

(Needs Report C000l, p.

152) and hardly

something dragged out of her on cross (Tr. 2/25 96);

Ms. Smith supposedly failed to consider Livingston landfill

—

a facility

which is projected to be depleted by 2004 (App. for Siting Approval, Vol.

I, C0001,

165);

Ms. Smith should have considered the Spoon Ridge capacity even though

her testimony that it is inactive and unavailable (Tr. 2/25 98-100) is

fully

supported by the Agency and clearlywell understood by this Board

(Sixteenth Annual Landfill Capacity Report, p. R 3.3); and

Ms. Smith supposedly claimed 60

of the proposed facility’s waste would

come “from the Chicago Metro area” (Respondent’s Brief 14), something

Ms. Smith never said (Tr. 2/25 92

& 99-100).

Similarly, Ms.

Smith did a somewhat collateral

analysis ofthe distances to

alternative disposal sites, and the City suggests that Ms.

Smith manipulated data

(Respondent’s Brief 55-56) because the distances shown on MapQuest (which the CCOC

chose to use) were slightly less than the distances provided by Ms.

Smith’s computer

program, Street Atlas (Tr. 2/25 7).

There was utterly no evidence offered to show that

MapQuest was more reliable than Street Atlas, and, more importantly, the minor

differences

in those distances would not have affected Ms. Smith’s conclusion that:

Without

the expansion of the Facility, haulers will

face increased hauling

costs to

direct haul waste to

alternative landfill locations.

Need Report

—

App. for Siting Approval, Vol. I, C0001, p.

176.

That conclusion is self-evident, and the relevance ofMs.

Smith’s analysis is the alternate

landfill locations, not the exact distances from Rochelle, which is hardly critical.

Also, a

program like MapQuest has the ability to itself “manipulate the data” by changing

parameters, such as the use ofinterstates or the shortest, as opposed to

the fastest, route.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

Several ofthe City’s arguments are particularly disingenuous.

For example, the

City suggests that Ms. Smith’s

conclusions are “questionable” because she supposedly

“asserted that as much as

123

million tons ofwaste in the service area may require

disposal,” a figure “based on a zero percent recycling rate even though all the counties

are recycling above zero percent and some counties, including Ogle County, are actually

exceeding their recycling goals.”

Respondent’s Brief56.

That ofcourse was precisely

Ms.

Smith’s point, and her charts, exhibits and testimony made clear that she was

projecting a

range

ofcapacity shortfall depending on whether there was no recycling or,

an equally unlikely occurrence, that the recycling goals were actuallymet.

Tr. 2/25

56-

& Need Report

—

App. for Siting Approval, Vol. I, C0001,

173.

See

also Tr.

2/25

(likelihood ofcounty recycling

goals being met “is not very high”).

Thus,

Ms. Smith

was simply attempting to explain the parameters ofher opinion and the factors that would

affect whether the capacity shortfall was at the high end or the low end ofthe range.

Turning that forthright approach on its head, the City suggests that Ms. Smith was

attempting to manipulate

data and that she was somehow suggesting that need could be

predicated upon a complete absence ofrecycling.

Similarly disingenuous is

the City’s

argument that Ms.

Smith did not know how

much of Ogle County’s waste was being transported to

Onyx facility.

Respondent’s

Brief

56.

The City’s conclusion that

Ms.

Smith therefore

“did not fully consider the fact

that the Onyx facility could providewaste disposal to a great deal ofthe area intended to

served by the proposed facility”

is completely erroneous.

The Onyx Orchard Hills

Landfill was specifically considered in the Need Report (App. for Siting Approval, Vol.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

I, C0001,

150), and the provincial question of how much of Ogle County’s waste is

disposed ofat that facility is neither particularly relevant nor even very likely

determinable.

Again, the issue

is the needs ofthe service area, not the needs ofjust the

county where the siting authority is located, and it is the applicant who determines the

service area, not the local decisionmakers.

The City makes a similarly unsupported

argument in contending that Ms.

Smith is

somehow wrong in concluding that it is

“typically more expensive to transfer waste out

ofa county than rely on in-county disposal” because the existing facility will rely on

approximately 80 percent of its waste coming from counties other than Ogle County.

Respondent’s Brief 57.

Certainly, the City is not

seriously suggesting that long-distance

transport ofwaste is somehow less expensive than in-county disposal or that the trend

towards regional landfills disproves any such economy.

In other words, these are

kibitzing arguments simply thrown up in order to suggest some colorable basis for

criticizing an obviously well-founded needs analysis by Ms. Smith.

Not one ofthe

criticisms leveled by either the CCOC or the City is valid or compelling, and these

weightless arguments are made merely to create the illusion that there was some defect in

Ms.

Smith’s obviously well-supported analysis.

The need for this facility was evident

from Ms.

Smith’s report and testimony, and none of the picayune objections leveled by,

the CCOC or the City can deny what the CCOC has admitted to

be evident

—

that any

regional facility such as that involved in this case is necessary to serve RWD’s service

area, which includes “metropolitan Chicagoland.”

CCOC Brief 7.

set forth in Ms.

Smith’s report, that entire area has determined to

ship waste out-of-county via either

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direct haul or transfer stations.

App. for Siting Approval, Vol.

I, C0001, pp.141-42 (City

ofChicago); pp.

142-43 (Cook County); p.

144 (DuPage County); p.

146 (Kane County);

147 (Kendall County).

The Board knows that the CCOC and the City are completely offtrack in arguing

that such need is somehow negated by the fact that Region

capacity increased in 2001.

Respondent’s Brief 13.

The EPA reports are a matter ofpublic record,

and, as the Board

well knows,

a slight increase in Region l’s total capacity (1.4)

Fifteenth Annual

Landfill Capacity Report —2001) was more than offset by the 1.8

capacity

decrease

the

following year.

See Sixteenth Annual Landfill Capacity Report

—

2002.

The stark reality

is set forth in the Sixteenth Annual Report:

The Chicago Metropolitan Region had only five years of landfill capacity

remaining at the end of 2002....

Sixteenth Annual Landfill Capacity

Report

—

2002.~

The need for a facility such as proposed by RWD is evident, Ms. Smith’s testimony and

report were compelling and the effort by the City and the CCOC to suggest the opposite

is disingenuous.

The City’s decision on Criterion (i) should be reversed as a simple

matter ofintellectual honesty.

Criterion (ii)

—

Design, Location and Operation

The CCOC and the City follow essentially the.same strategy with respect to

Criterion (ii) that the CCOC used during the hearing.

In essence, because there are

always ambiguities and anomalies in any hydrogeological investigation and because this

site was so thoroughly investigated that there are literally thousands ofpages of

The report also states that no

new capacity had beenaddedin Region 2 from 1999-200 1.

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documents containing many more thousands of pieces ofdata, the City and the CCOC

ignore

the larger picture and use outright misrepresentations and isolated examples of

data anomalies to

suggest that the site characterization is incorrect.

For example, the CCOC argues that sand lenses in the Till should have been

drawn as continuous rather than “as being ofdiamond shape with the thickest portion

encountered at the boring.”

CCOC Brief 10.

As RWD’s hydrogeologist,

Steven M.

Stanford, testified, those sand lenses were drawn in accordance with “convention,” and

theywere shown as discontinuous because sand lenses at other locations were of different

“textures.”

Tr. 3/3

160-61.

Also, the cross sections are drawn in accordance with

interpretation, and Mr. Stanford testified that the way they were drawn was “partially

based on observation during the excavation ofthe site, and it’s

also based on literature

information that indicates these bodies are discontinuous.”

Tr.

3/3

161-62.

Accusing Mr. Stanford of“intentionally minimizing negative features,” the

CCOC argues that he classified “wells with virtually identical elevations and identical

depths into bedrock as being in different geologic units based on thepermeability

determined in

slug testing ofthose wells.”

CCOC Brief 10.

The CCOC then purports to

cite “examples,”

which are actually the singular example the CCOC could find out of

the dozens of wells analyzed by Mr. Stanford.

Mr. Stanford explained, Well G-34-D

was screened more deeply in the bedrock than Well G-106-D, and therefore Well G-34-D

was categorized as being in the lower Dolomite, whereas the otherwell was characterized

as being in the Upper Dolomite.

Tr.

3/3

209-10.

In other words, there was one piece of

ambiguous data which required that Mr. Stanford make a judgment call.

If the judgment

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had been made the other way, that would not have made any material difference to the

overall analysis.

Similarly, the CCOC suggests that Well G-68-I is screened in the Tiskilwa Till

and yet it “behaves like an aquifer” (CCOC Brief 10), which supposedly shows

that Mr.

Stanford is incorrect in stating that the Till is an impermeable barrier between the bottom

ofthe landfill liner and the uppermost aquifer.

That is

a misrepresentation ofthe

testimony.

Although the well is

screened in the Till, Mr. Stanford testifiedthat it was

“connected with the sand layer above there.”

Tr.

3/3

167.

Thus, it was entirely

appropriate for Mr. Stanford to not treat that well as an indication of the permeability of,

the Tiskilwa Till.

The CCOC

is also offbase

in suggesting “Mr. Stanford’s gross inability to even

identify and classify the top ofthe bedrock which

renders his conclusion about the

quality ofthe geologic setting completely meaningless.” CCOC Brief 11.

Again, that

assertion is based on a few selected data points, which Mr. Stanford fully explained.

For

example, all ofMr. Stanford’s cross sections bear detailed notes stating that

“interpolation ofstrata between borings is in accordance with the geologic principles

and

that

subsurface conditions between the borings may vary from those indicated.”

Cross Section K-K’, App. for Siting Approval, Vol. IV, C0004, p. 2158, n.

They

also contain the notation that the upper surface ofthebedrock has been “interpolated on a

site-wide basis between borings ofsufficient depth using Autodesk software.”

at p.

2158,

n. 3.

Thus,

contrary to what the CCOC asserts, Mr. Stanford did not depict Boring

EB-31

“as encountering bedrock,” and clearlytestified that bedrock was not encountered

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at the base ofEB-3 1

and that the depth of bedrock at that location is not known.

Tr.

3/3

189.

How the computer program happens to contour a surface which is not known

and clearly setforth

the report as being unknown

is not something that

calls Mr.

Stanford’s overall interpretation into question.

Obviously, in no hydrogeological

characterization can every point ofthe bedrock

surface be known.

Clearly, that is

something determined, as the notes indicate, on a site-wide basis.

The cross sections are

designed to generally describe what is beneath the surface, but where the depth of

bedrock is unknown, the cross sections arejust illustrative.

Therefore, for data points

which are actually unknown, there is nothingunusual about illustrating at least 40 feet of

bedrockbelow a boring in one cross section and illustrating the sameboring as having

over 60 feet in another cross section.

Tr. 3/3

192.

There was utterly no showing by the

CCOC that the bedrock surface had been drawn improperly on a site-wide basis, and the

few “examples” cited by the CCOC in its brief are the inevitable ambiguities and minor

errors that would necessarily be encountered in

any hydrogeological investigation.

Both the City and the CCOC criticize Mr. Stanford on the grounds his

Groundwater Impact Assessment (GIA) was supposedly flawed because “he did not

determine the permeability of the Tiskilwa layer through which the contaminants would

move but instead simply assumed that contaminants would move at the same speed as

they did in the liner system.”

Respondent’s Brief 19-20 & CCOC Brief 12.

As Mr.

Stanford explained both in the Application and in his testimony, he determined that the

geometric mean permeability of the Tiskilwa layer lower

Till

1.4 x

centimeters

per second.

App. for Siting Approval,

Vol. VI, C0006,

4065.

As explained in the

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

Application (Id. at p. 3974), construction of the proposed landfill, which is

laterally

extensive relative to the thickness ofthe Till and the Platteville Group, would produce a

shadow effect because recharge will be dramatically reduced by the low permeability

composite liner system.

Beneath the landfill the water, and hence the contaminants, can

only move at the rate allowedby leakage through the composite liner system.

To assume

that contaminants move through the Tiskilwa layer at a rate different than through the

composite liner system would require the materialization ofadditional water from

nowhere.

Tr.

3/3

15 1-54.

In other words,

“the vertical velocities will likewise because

of reduction in recharge

be reduced to a rate approximately equal to the landfill leakage

rate as computed in Section

2.5.5.3.”

App. for Siting Approval, Vol. VI, C0006,

3974.

Both the City and the CCOC rely upon numerous, unsubstantiated claims to

criticize Mr. Stanford’s GIA.

For example, the City claims that Mr. Stanford “assumed

only two pinhole defects

in the HDPE per acre even though Mr. Zinnen assumed twice as

many in his model.”

Respondent’s Brief 19.

That assertion is both incorrect and a red

herring.

Mr. Stanford did not assume the presence oftwo pinhole defects in the HDPE.

Apinhole

defect is by definition an opening in the HDPE with

a diameter smaller than its

thickness.

With the 60-mu

HDPE liner designed into the proposed landfill, the area of

such

a defect would be no larger than 0.0182 square centimeters.

As Mr. Stanford

testified, he specifically assumed the presence oftwo installation defects per acre, each

with an open area of 1.0

square centimeter, which is

times the open area ofthe

supposed pinhole defects.

The issue

is also a red herringbecause the number ofdefects

per acre is not an input parameter to the model used by Mr.

Stanford.

The actual input

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ON RECYCLED PAPER

parameter is

the leakage rate through the composite liner system, not the number of

installation defects or pinholes.

Considering not only the number ofinstallation defects

but the head atop the liner system as well, the leakage rate assumed by Mr. Stanford was

0.0005682 meters per annum.

App. for Siting Approval, Vol. VI, C0006,

3971.

This

value is far more conservative than the figure of 0.0002979 meters per annum published

in the Agency’s 1992 Instructional Notes to Practitioners ofGIA’s.

See also Tr. 3/3

154-58.

Regardless ofwhether factoring in the background value

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

determined at a monitoring well located several hundred feet away indicates a higher than

allowable concentration ofammonia, the intra-till granular unit included in

Conceptual

Model Section 0-0’ is only 1.3 feet thick and therefore does not meet the definition of an

aquifer, let alone the uppermost aquifer for which compliance with the groundwater

protection standard must be demonstrated.

App. for Siting Approval, Vol. VI, C0006,

3977.

As stated in the Application, the uppermost aquifer, where the groundwater

protection standard would apply, is the weathered upper surface ofthe bedrock along

with any overlying silt and/or gravel to which it is hydraulically connected.

at 3950.

Clearly the

1.3 feet thick unit does not indicate direct hydraulic connection and is

therefore not subject to the groundwater protection standard.

Rather, it simply comprises

part ofthe package ofsediments that would attenuate a release from the proposed landfill

should one occur.

The attack on Mr. Stanford’s credentials is also unwarranted.

The City’s claim

that he has only been the responsible geologist for one other landfill (Respondent’s Brief

19) is incorrect.

There was no

such testimony.

Although Mr. Stanford does not hold

himself out as a “professional witness” traveling from hearing to

hearing and has only

been involved in two 39.2

siting hearings (Tr. 3/3

141), Mr. Stanford has been an

environmental hydrogeologist for more than

17 years, logging over

15,000 feet of

exploratory borings, personally supervising the installation ofmore than 300 monitoring

wells and investigating the hydrogeology at dozens offacilities, including landfills,

hazardous waste facilities ofall kinds, factories, steel mills, former manufacturing gas

plants sites and petroleum storage facilities.

Tr. 2/3 57-58.

Unlike the CCOC’s

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

hydrogeologist, Charles Norris, Mr. Stanford has conducted three GIAs involving

groundwater flow modeling and transport modeling.

Tr. 3/3

58.

The testimony ofCharles Norris has been fully described in the Petitioner’s

opening brief, and the CCOC and the City do little more then

to restate all ofthe same

“concerns” Mr. Norris expressed during the hearing without ever stating any definitive

opinion as to whether ornot Criterion (ii) had been met.

Although the CCOC has nothing to say about the design ofthis

obviously well

designed facility, the City makes a series ofgeneric objections.

For example, they assert

that “Mr.

Zmnnen admitted that that IIDPE can be compromised by certain chemicals

under certain conditions.”

Obviously that is true in concentrations vastly beyond that

found in landfill leachate (Tr. 2/25 200-06), but the Application includes actual

laboratory test data showing, as this Board clearly knows, that in the actual

concentrations found in leachate

from a landfill, those chemicals have no deleterious on

HDPE membrane.

App. for Siting Approval, Vol. II, C0002, pp.

908-3 1.

A similarly generic complaint by the City is the claim that the leachate collection

pipes and their surrounding granular layer are wrapped in a geotextile, “which Mr.

Zinnen admitted could become clogged.”

Respondent’s Brief

15..

As Mr. Zinnen

testified, the design intent ofthe geotextile filter is to have some ofthe pores clog but that

not all of the pores will

clog.

Obviously, this would happen in any landfill, and it would

be impossible to monitor the clogging ofin-place geotextiles as that would

obviously

require the destruction ofthe leachate collection system.

This is simply another generic

objection that could be leveled at any landfill, including those proposed by the clients of

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

the City’s and the CCOC’s counsel when they are proposing

an expansion rather than

opposing one.

The claim that Mr. Zmnnen did not know “what amount ofdeformation the

recompacted clay and the final cover could withstand before it cracked” (Respondent’s

Brief 16) is another red herring.

Mr. Zmnnen did an analysis to

determine what

deformation would be expected and to show that the expected deformation would not

result in a failure ofthe system.

Tr.

2/25 225-27.

It is correct that Mr. Zinnen initiallyused a slightly improper calculation for the

final cover slope, but he corrected the calculations during the hearing.

Respondent’s

Brief 16 & 61.

Although there was a minor error, it was entirely immaterial.

The 25

percent side slope area actually accounts for approximately 43 percent of the disposal

unit, and the 6 percent top

accounts for 57 percent.

The flow through the drainage layer

is inconsequential in either case, increasing from 0.00041

inches to 0.00 194 inches per

year.

That is the equivalent to

increasing from 1/10 the width ofa sheet ofpaper to

1/2

the width ofa sheet of paper, which

is entirely immaterial to the slope of the final cover.

The criticism is nothing more than a “gotcha,” and both the City and the CCOC know

that.

Tr. 2/25 23 1-33

180-85 & App. Ex.

123.

The Petitioner clearly established compliance with Criterion (ii) and the City’s

decision on that criterion should be reversed.

Criterion (iii)

—

Minimizing Incompatibility and Property Value Impact

The CCOC and the City make some oftheir most picayune objections with

respect to the testimony ofthe land use planner, Chris Lannert, who testified that the

proposed landfill would be compatible with the surrounding area, which is largely

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

industrial and agricultural.

For example, a very substantial screening berm, much of

which has already been built,

is proposed for the easterly side ofthe facility, and the City

makes the completely unsupported statement that it “is planned to be constructed on land

that

is not owned or controlled by the Applicant.”

Respondent’s Brief 23.

That assertion

flatly wrong.

The land was purchased from the Village of Creston in a Real Estate

Purchase Agreement dated April

16,

1999, which is

specifically included in the

Application.

App. for Siting Approval, Vol. VIII, C0008, pp.

5708-5727.

As Mr.

Lannert clearlytestified, although that property is not specifically within the facility

boundary,

it is

subject to that land purchase agreement, which includes a Restrictive

Covenant requiring the berm as a visual screen between the facility and the Village of

Creston.

App. for Siting Approval,

Vol. VIII, C0008, pp.

5718-5727.

Obviously, the

Petitioner could not include the proposal of such a berm in its Application and not

comply with that requirement, and the suggestion that RWD does not own the land or

need not comply with the purchase agreement requirements is ridiculous.

Both the City and the CCOC resort to the empty accusation that Mr. Lannert’s

very complete report does not happen to include

any photographs from the backyards of

homes in Creston.

CCOC Brief 17

& Respondent’s Brief24.

As Mr. Lannert pointed

out,

because

the undulation ofthe topography within the community, and if

you are not on the edge ofthe community, which is where those

photographs were taken from, very few ofthe homes along Woodlawn or

along Main or Kendall would have any particular impact, because the

homes within the community buffer those views from the existing landfill

as well as the proposed landfill, so those are not a consideration.

Tr. 2/24

94.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

Obviously, if photographs from Creston backyards were of any real significance, either

the CCOC or the City could have produced such evidence.

The criticism is thus as

irrelevant as would be a claim that Mr. Lannert did not

include

a photograph from the

Rochelle City Hall front door.

Similarly, although both the City and the CCOC claim

that Mr. Lannert admitted that this would be the largest landform in Ogle County,

the

transcript belies that

assertion.

Mr. Lannert testified that he did not know whether this

would be the largest landform, and he suggested that the Onyx landfill in Davis Junction

might be larger.

He did not know (Tr. 2/24

108-10), and there was no evidence offered in

that regard.

Although the City and the CCOC are critical ofMr. Lannert because his

testimony in 35

cases has been consistent with whether he was testifying for a proponent

or opponent of siting, neither of them offer any substantive reason that Mr. Lannert’

conclusions are challengeable.

This is an

agricultural and industrial area separated by

roads and a railroad track from the nearest village,

and review ofMr. Lannert’s report

and testimony will indicate to the Board that there was utterly no basis for believing that

the first prong ofCriterion (iii) had not been met.

The CCOC’s and City’s gamesmanship is nowhere more evident than in their

effort to

suggest that Petitioner’s real estate appraiser, Peter Polletti, engaged in “nothing

more than guesses and statistical manipulations.”

CCOC Brief 17.

When Mr. Polletti

prepared to testify for Mr. Mueller in connection with Allied Waste’s Livingston County

siting application, he used the very same approach and determined that the Livingston

County landfill, which will accept approximately

13,000 tons ofwaste per day (as

opposed to the 2,500 tons proposed in this

Application), would not

affect surrounding

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

property values, including that in a nearby village.

Tr. 2/24

177-78.

Thus, Mr. Mueller

advocates forthe approach taken by the very same witness whom he now attacks.

Both the City and the CCOC accuse Mr. Polletti ofusing “selective” data to

show

that there was no

significant difference between propertyvalues or appreciation rates in

areas near the landfill (the target area) and areas further away (the control area).

CCOC

Brief 18

& Respondent’s Brief24 & 68.

Thus,

Mr. Polletti supposedly excluded all the

sales from a town called Lindenwood, but Mr. Polletti actually testified that there were

hardly any sales in that location and that no

square footage information was available for

those sales

from which square footage prices could be derived.

Tr. 2/24

160-61.

Similarly, because there were so few resales within the target area (only 4), Mr. Polletti

included one sale outside his selected time period.

Tr.

2/24 166.

Nevertheless, as

evidenced by Mr. Polletti’s report (which specifically acknowledged the inclusion ofthat

sale), the removal ofthat sale would still have left the average compound appreciation

rate within the target area higher than in the control area.

App. for Siting Approval, Vol.

VII, C0007, pp.

126-5127.

Mr. Polletti conceded that because there were so few resales within the target area

the appreciation rate comparison did not mean too much.

Tr. 2/24

167.

Engaging in the

same sort of gamesmanship evidenced by Mr. Mueller’s use and abuse ofMr. Polletti’s

data and

approach, both the City and the CCOC attempt to suggest that such limited data

does

mean something

—

that because a very few recent sales have been lower since the

first application, it somehow proves that the landfill

impacting propertyvalues.

Tr.

2/24 168-69 &

172.

CCOC Brief 18

& Respondent’s Brief 26 & 68-69.

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Both the City and the CCOC also

accuse Mr. Polletti of being selective about data

in that he excluded sales

involving older homes, bi-levels and tn-levels (CCOC Brief 18

& Respondent’s Brief68), but Mr. Polletti actually gave a complete and reasonable

explanation for why those sales were excluded from the square footage comparisons:

To increase the reliability ofthe study, certain criteria were applied

to all ofthe

sales.

Only houses constructed after the mid

1950s were used

because these homes are more similar in style, construction techniques,

amenities, and utility than homes constructed before this time frame.

Homes located on tracts larger than five acres were not used because of

the possibility ofthe extra land distorting the price per square foot.

Similarly, homes with large outbuildings

were not used because the extra

buildings would tend to distort the price per square foot.

Bi-level and tri-

level homes also were not included in the study because they tend to sell

for less per square foot than do one-story and two-story homes

and

because it is ‘often difficult to accurately estimate the actual amount of

living space.

Consequently, these types of homes would tend to

skew

results in the sample.

All

information concerning the size, age, type, and

other characteristics were obtained from the Dement Township Assessor

or the Flagg Township Assessor property record cards.

App. for Siting

Approval, Vol. VII, C0007,

5129.

Both the City and the CCOC suggest that because Creston has a higher average income

but lower propertyvalues, its proximity to the landfill is affecting property values.

CCOC Brief 17-18 & Respondent’s Brief25.

Mr. Polletti disputed that, testifying that a

variety offactors could reduce property values in Creston, such as its distance from

shopping and secondary education, its sewer impact fees

and its lack ofcurb and gutter,

which could result in higher property values in the city ofRochelle.

Tr.

2/24 153-56

176-77.

Mr. Polletti’s testimony is credible,

his report was complete and there was no

contrary evidence offered to show that the Petitioner had not done what was possible to

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

minimize the impact on property values.

The City Council’s decision on Criterion (iii)

should be reversed.

Criterion (vi)

—

Traffic

Perhaps indicating their concession that there is utterly no basis for challenging

Michael Werthman’s excellent traffic study and testimony, the CCOC has nothing to say

in theirbrief about that aspect ofthe case.

The City, on the other hand, completely

misrepresents Mr. Werthman’ s testimony, contending that he testified that the

intersection ofRoute 38

and Mulford Road would operate “at a D level of service” once

“the new facility is

added.” Respondent’s Brief 27.

The City therefore claims that Mr.

Werthman directly contracted “his opinion that Criterion (vi) was met” because he

supposedly

admitted that the facility will, in fact, have an adverse effect on traffic

the areabecause the presence of landfill traffic and the road improvements

necessary to

accommodate such traffic will downgrade the level of service

at the intersection ofRoute 38

and Mulford from a grade

‘C’ to

a grade

‘D’ the lowest acceptable level of service. Respondent’s Brief71.

Those statements are a complete misrepresentation ofMr. Werthman’s testimony and

report.

Mr. Werthman’s report (App. for Siting Approval, Vol. VIII, C0008,

5513) as

well as his testimony made clear that the Illinois 38/Mulford Road intersection would

remain at a level C level of service for more than 10 years and that it would not drop to a

level D until the year 2022 because ofprojected ambient growth, not because of the

landfill.

Tr. 2/24 241-42.

Also, although the City claims that Mr. Werthman is relying upon certain

improvements to be constructed by the Illinois Department ofTransportation at that

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

intersection and that those improvements are not a certainty (Respondent’s Brief26), Mr.

Werthman contradicted that, testifying that IDOT had said the improvements would be

begun in the year 2003

and were planned for completion

in that year.

Tr.

2/24

188-89.

Mr. Werthman also stated that it was both his opinion and the opinion ofIDOT that a

traffic signal was neither required nor warranted at the intersection of1-38 and Mulford.

Tr.

2/24 207-09.

App. Ex.

40 (1DOT’s letter stating “the installation for traffic signals is

not justified”).

Although the City suggests that Mr. Werthman’s report should have considered

construction traffic, it is not at all clear that off-site soils will be required, and even if the

665,000 tons that might be required were brought onto the site, that would occur over the

year life of the landfill, which obviously is not built in

a single year.

Tr.

2/24 226.

Thus,

simple mathematics will demonstrate that the number oftrucks involved in any

such construction would not be significant.

Tr. 2/24 225-26 & 250 & Tr. 2/25

235-37.

Similarly, Mr. Werthman

did

consider the truck traffic that would be involved in

Rochelle’s intermodal yard (five to six miles away on the other side ofthe city), and he

concluded that it would not affect traffic patterns in proximity to the landfill.

Tr. 2/24

2 15-17.

Mr. Werthman obviously had to rely on the Applicant for an indication ofthe

number oftrucks

expected, theirtraffic patterns and peak hour distributionofthe traffic,

but Mr. Werthman testified that he also balanced that information from the Applicant

against his own study and experience.

Tr.

2/24 223-26, 244

& 250.

That is typical for

such an expert witness and is, once again, simply a generic objection that could be

leveled at any traffic study in any landfill siting proceeding.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

Mr. Werthman’s study

and testimony were compelling,

and the City Council’s

finding that the Petitioner had not met Criterion

(vi) should be reversed.

Operating Record

Asserting that the siting process

should

be legislative, the CCOC contends that

the City Council was entitled to deny siting approval based on the supposed “deplorable

operating record at the existing facility.”

CCOC Brief3-4.

The CCOC then proceeds to

completely misrepresent the actual record in this case, which established that, although

there had been some past violations, particularly prior to

1995 when the City ofRochelle

was the actual owner and permitted operator ofthe existing facility, the record

demonstrated that RWD, the current operator, has been a responsible and safe

operator of

the facility.

Nevertheless, the CCOC, both during the hearing as well as in theirbrief to

the Board, attempts to misrepresent the Petitioner’s operating record.

For example one of

its most blatant misrepresentations

is the claim that “in 41

inspections between February

1999 and November 2001,

deficiencies were noted on 35

occasions,” a claim based upon

an unauthenticated “Compliance

Tracking System” report identified as CCOC Ex.

There was no authentication ofthis record or explanation ofits purpose, but RWD’s

project manager, Thomas Hubert, testified unequivocally and without contradiction that

the document was inaccurate and that, as set forth in the Application in detail,4 since

1995

the existing

facilityhad only received five notices ofviolations and two

~The Application contains all documents pertaining to

all

notices of violation or citations of any type

since

1995

when RWD became the permit

holder for the

existing facility.

App. for Siting Approval, Vol. VIII,

C0008, pp.

5859-6116.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

administrative warnings.

Tr. 2/26

98.~’Although the CCOC suggests that Mr. Hubert

“dismissed” CCOC Ex.

(CCOC Brief 16), Mr. Hubert had actually never seen the

document previously and explained that he did not know what it meant “without

reviewing the document.”

Tr. 2/26

139-40.

Far from

dismissing the document, Mr.

Hilbert asked for a recess to review it and, having reviewed it, testified that the document

appeared to

be nothing more than an internal tracking document for the Agency and that

it set

forth

notices ofviolations and was actuallyless complete than the records RWD

had submitted with the Application in that it did not include any ofthe notices of

violations disclosed in the Application and included records of inspectors who had

nothing to do

with the existing facility.

Tr. 2/26

165-66.

A similarly blatant misrepresentation ofthe record is the CCOC’s claim that the

landfill operator, Clyde Gelderloos, “still denied responsibility” for some administrative

citations issued in the early 1990’s when he was operating the landfill forthe City as a

contractor.

CCOC Brief 15.

That is completely contrary to the record in that Mr.

Gelderloos testified unequivocally that he had always accepted responsibility for those

citations but that appeals were filed at the request of the

City

itselfbecause the City was

named the operator in the permit

and wanted no suggestion that anyone else was the

operator with the right to control design, hours ofoperation or permitting.

Tr. 2/26

13-14

All

of these notices, which typically recited

oniy “apparent” violations, were resolved to the

satisfaction

of the

Ogle County Solid Waste Management Department (OCSWMD),

acting on behalfof the

Agency,

which notinfrequently withdrew apparent violations onceRWD had explainedthe circumstances.

App. for Siting Approval,

Vol. VIII, C0008,

pp. 5870-71

(Agency permit obtained); pp. 5930-34

(violations corrected or withdrawn by OCSWMD); pp. 6002-05 (Compliance Commitment Agreement

approved by OCSWMD); pp. 6042-44;

pp.

087-88

(Compliance Commitment Agreement approved by

OCSWMD); pp. 6112-13.

It should be noted that

iwlie

ofthese notices

ever resulted in any citation

enforcement proceeding because RWD always promptly responded to the Agency’s concerns and took

corrective actions

whenever necessary.

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31.

Indeed, the Agency at one time agreed that the City, not Mr. Gelderloos’ company

which conducted day-to-day operations under its

contract with the City, was the proper

party to such citation proceedings.

See In re Rochelle Disposal Service, Inc., AC 89-68

(EPA Docket No. 9563-AC),

1989 WL

85818 (PCB June 22,

1989).