BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROCHELLE WASTE DISPOSAL, L.L.C.,

Petitioner,

THE CITY OF ROCHELLE, an ll.LINOIS

MUNICIPAL CORPORATION and THE

ROCHELLE CITY COUNCIL,

Respondents.

)

PCB No. 07-113

NOTICE OF PROVISIONAL FlLING OF MOTION FOR SUMMARY

.nJDGMENT AND MEMORANDUM IN SUPPORT OF MOTION FOR

PARTIAL SUMMARY JUDGMENT

TO:

All Counsel ofRecord (see attached Service List)

PLEASE

TAKE

NOTICE that on November 30, 2007, the undersigned provisionally

filed electronically

with

the Dlinois Pollution Control Board, 100 West Randolph Street,

Chicago, Illinois 60601, the Petitioner's Motion for Summary Judgment and Memorandum

Support of Motion for Partial Summary Judgment, (all in accord

with

Petitioner's previously

filed Motion for Leave to File Partial Motion for Summary Judgment), copies

of which are

attached hereto.

Dated:

November 30, 2007

Charles

F. Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

P.O.

Box 1389

Rockford,

IL 61105-1389

815-490-4900

Respectfully submitted,

ROCHELLE

WASTE DISPOSAL, L.L.C.

Is/Charles

F. Helsten

Charles F. Helsten

One ofIts Attorneys

70545049v1 871956

Electronic Filing: Received, Clerk's Office, November 30, 2007

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil

Procedure> hereby under penalty of perjury under the laws of the United States of America,

certifies that on November 30,2007, she served a copy ofthe foregoing upon:

Hon. John McCarthy

Donald

J. Moran

45 East Side Square, Suite 301

Pedersen

Houpt

Canton,

61520

161 N. Clark St., Suite 3100

jirnccarthy@winco.net

Chicago,IL 60601-3142

dmoran@J>edersenhoupt.com

Glenn Sechen, Esq.

David Tess, Esq.

Schain Burney Ross

& Citron Ltd

Tess

Redington

222 N. LaSalle St., Suite 1910

1090 N. Seventh St.

Chicago,

60601

P.O. Box 68

gsechen@schainlaw.com

Rochelle,IL 61068

dtess@oglecom.com

Alan

Cooper> Esq.

Emily Vivian

Attorney at Law

David Wentworth

233 E. Route 38, Ste. 202

Hasselberg, Williams, Grebe, Snodgrass

Birdsall

P.O. Box 194

125

SW Adams St., Ste. 360

Rochelle,IL 61068

Peoria,

61602-1320

cooplaw@rocheUe.net

evivian@hwgsb.com

dwentworth@hwgsb.com

Bradley Halloran

Mr. Bruce W. McKinney

Illinois Pollution Control Board

Rochelle City Clerk

100 West Randolph Street

Rochelle

CiZ Hall

Suite

11-500

420

North 6 Street

Chicago,

60601

Rochelle, IL 61068

hallorab@ipcb.state.il.us

bmckinney@rochelle.net

Via electronic mail before the hour of 5:00 p.m., at the addresses listed above and by depositing a

copy thereof, enclosed

an envelope in the United States Mail at Rockford" lllinois, proper postage

prepaid, before

the hour of 5:00 P.M., addressed

above.

lsi

Danita Heaney

HINSHAW

CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Rockford, IT- 61105-1389

(815) 490-4900

This document utilized 100io recycled paper products.

70545049v1 871956

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROCHELLE WASTE DISPOSAL, L.L.C.,

PCB No. 07-113

Respondents.

Petitioner,

)

THE CITY OF ROCHELLE,

ILLINOIS )

MUNICIPAL

CORPORATION and the )

ROCHELLE CITY COUNCIL,

)

MOTION FOR PARTIAL SUMl\1ARY JUDGMENT

NOW COMES the Petitioner. Rochelle Waste Disposal, L.L.C. ("RWD"), by and

through its attorneys, and moves this Honorable Board, pursuant to 35 Ill. Adm. Code 101.516

for partial summary judgment

in its favor.

support of its Motion for Partial Sununary

Judgment, Petitioner states as follows:

415 ILCS 39.2 (ii) and (vi) require that an applicant for local siting approval for a

pollution control facility prove that the facility is so designed, located and proposed to be

operated that public health safety and welfare will be protected and that the traffic patterns to or

from the facility are so designed as to minimize the impact on existing traffic flows.

The City of Rochelle, as Applicant, submitted an application to the Rochelle City

Council for siting approval for expansion

of a landfill operated by RWD. on October 16,2006.

The City presented extensive material in its written Application for Siting Approval, as well as

substantial expert testimony during hearings, establishing compliance with the aforementioned

criterion.

No evidence was presented which either rebutted, qualified, or impeached the

finding that Criterion ii and vi were complied with and fully supported

by the record made

this

proceeding.

70543S27v1871956

Pursuant to Section 78-76(n) of the City of Rochelle's Siting Ordinance, the

Hearing Officer appointed

by the City Council issued proposed Findings of Fact and

Conclusions

of Law and Recommendations on April 2, 2007. The Hearing Officer found that

the Applicant met the aforementioned criterion. However, the Hearing Officer imposed thirty

seven (37) Special Conditions upon Applicant'ssiting approval.

more fully set forth in its Memorandum filed contemporaneously herewith,

Petitioner will establish that there is no logical relationship between the imposition

of Special

Conditions

13,22,23,33 and 34

their present fonn and furtherance of the intended goals and

purposes

of the Act. These Special Conditions as now set forth are not supported by the record,

and are in part an improper attempt to ex post facto shift certain financial burdens onto

Petitioner.

Special Conditions 13, 22, 23, 33 and 34 as presently structured are against the

manifest weight of the evidence, are unsupported by any expert testimony and were arbitrarily

imposed.

As a matter of law, no genuine issue of material fact exists regarding the impropriety

of these conditions

their present form. At most, these Special Conditions are only sustainable

if amended in the manner discussed in the attached Brief

Support of Motion for Partial

Summary Judgment

conform with the record made in this proceeding. Resultantly, summary

judgment in favor of Petitioner is appropriate.

WHEREFORE, Petitioner, Rochelle Waste Disposal, L.L.C. respectfully requests that

this Honorable Board, pursuant

35 TIl. Adm. Code 101.516 grant partial summary judgment in

its favor

the manner and form set forth in detail

Petitioner's Supporting Brief.

70543527v! 87\956

Dated: November 30, 2007

Charles F. Helsten

Richard S. Porter

Hinshaw

Culbertson LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully submitted,

ROCHELLE WASTE DISPOSAL

By:

Charles

Helsten

Charles

F. Helsten

One

of Its Attorneys

This document utilized 100jo recycled paper products.

70543527vl 871956

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROCHELLE WASTE DISPOSAL, L.L.C.,

PCB No. 07-113

Respondents.

Petitioner,

)

THE CITY OF ROCHELLE, an ILLINOIS )

MUNICIPAL

CORPORATION and the )

ROCHELLE CITY COUNCIL,

)

MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL

SUMMARY

JUDGMENT

NOW COMES the Petitioner, Rochelle Waste Disposal, L.L.C. ("RWD'j, by and

through its attorneys, and moves this Honorable Board, pursuant

to 35 Ill. Adm. Code 101.516

for summary judgment in that there exists herein no genuine issues

of material fact, and that

Petitioner is entitled to judgment

as a matter of law. In support of its Motion for Partial

Summary Judgment, Petitioner states as follows:

BACKGROUND

The Petitioner, RWD, is the current Operator

of the Rochelle Municipal Landfill, located

in Rochelle, lllinois. On or about September 26, 2006, the City and RWD entered into a

Restatement

of Host Agreement and Agreement for Operation/Development of City of Rochelle

Landfill

No.2 ("Host Agreement"). The Host Agreement sets forth the tenns and conditions for

the operation

of the facility and a proposed expansion of the existing facility.

(See generally,

Host Agreement).

The Host Agreement provides that RWD will cooperate with the City

in planning and

designing the expansion, and will continue as the Operator

of the expansion.

(Id.).

In addition,

the Host Agreement specifies that RWD will pay the City annual base fees,

as well as per ton

fees, and that RWD will pay additional specified sums

if the siting authority grants approval for

70543114v1871956

the expansion consistent with the tenus of the Host Agreement.

(ld.).

The Host Agreement

further provides that

RWD will donate certain real property to the City to facilitate the expansion

and acconunodate Ie-disposal

of waste from Unit 1 of the existing landfill.

(ld.).

Finally, the

Host Agreement provides that "[t]he City and its officers, council members and employees will

not take any action which

has

the intended or probable effect of interfering umeasonably with

the operation

or expansion of the facility or the Expanded Facility."

(ld.

5.2.) The tenus of

the Host Agreement were the product of extensive investigation, study, and negotiation between

the parties, and the

tenns memorialize the parties' respective willingness to shoulder certain

specific costs, make certain specific payments, undertake certain specific duties and assume

certain specific responsibilities.

On or about October 16, 2006, the City filed its Application with the Rochelle City

Council seeking local siting approval for the proposed expansion. Five days

of hearings on the

Application ensued, commencing on January 22, 2007 and concluding

on February 8, 2007. The

Concerned Citizens

of Ogle County ("CCOC"), an objector's group, made their objections to the

expansion

mown for the record and hired a consultant to testify at the hearings. Thereafter, the

City Council met to consider action

on the Application, pursuant to Section 39.2(e) of the lllinois

Pollution Control Act and pursuant to the

City'slocal siting ordinance.

On April 2, 2007 the Hearing Officer issued Proposed Findings of Fact, Conclusions of

Law and Reconunendations that, '....the application meets the criteria set forth in Section 39.2 of

the Act and

recommend that the City Council approve the request for local siting approval

subject to the special conditions which are set forth hereinafter." (Hearing Officer'sFindings

Fact, Conclusions of Law and Recommendations, at p. 5).

With respect to Criterion (i), the Hearing Officer concluded that the Applicant met the

requirements, having shown that the facility is necessary to accommodate the waste needs

of the

70543114v1871956

area it is intended to serve. (Hearing Officer's Findings of Fact, Conclusions of Law and

Recommendations, at p. 10). The Hearing Officer similarly found that Criteria (iii), (iv), (v),

(vi), (vii), (viii) and (ix) were met.

(Id.

at p. 25, 27,34,36,37).

As to Criterion (ii), the Hearing Officer concluded that the Applicant's expert testimony

was more credible than that provided by the consultant retained by CCOC, and he opined, "I

agree with the opinions expressed by Mr. Drommerhausen and

Mr,

Moose. Their testimony

appears to be uncontradicted and unrebutted,"

(Id.

at p. 20). (Emphasis Added). He accordingly

found that the requirements

of Criterion (ii) were met.

With respect to Criterion (vi), the hearing officer observed that the only testimony

concerning that criterion was provided

the applicant's expert, Mr. Werthmann, and after

reciting the evidence presented, the Hearing Officer concluded that Criterion (vi) was met.

(Id.

p.34).

Although he found that all the statutory criteria were met on the face of the evidentiary

showing made by the Applicant, the Hearing Officer nevertheless recommended imposing

numerous Special Conditions. which he proposed

in order to "encourage compliance by the

operator and assist in minimizing the concerns of CCOC."

(ld.

at 38) (emphasis added).

or about April 11, 2007, the City Council passed Resolution R07-10, in which the

Council rendered its findings. The Resolution includes the fmding that every siting criterion was

met, and, accordingly, grants approval

of the site expansion. However, the Resolution imposes

thirty-seven (37) Special Conditions, some of which echo the conditions proposed by the

Hearing Officer.

Thereafter, RWD filed a Motion for Reconsideration

which it objected

Conditions 8,

13, 22, 23, 26, 28, 33 and 34. On May 14, 2007, the City Council passed Resolution R07-18,

705431l4V1871956

which afftrmed the siting pennit approval and the imposition of all of the conditions, but

modified Condition 34.

The Special Conditions at issue in this Motion are not necessary

accomplish the

purposes of the Act, are inconsistent with the Board's regulations, and are not supported by the

evidence, testimony of experts, or any other portion of the record. The Special Conditions would

significantly alter the tenns negotiated by the City and RWD in the Restatement of the Host

Agreement, would dramatically increase the costs of operation and would unreasonably interfere

with operation

of the proposed expansion and the economic feasibility ofthe project. Moreover,

their imposition is against the manifest weight

of the evidence, is arbitrary in nature, and is

derived largely from the Council Members' eagerness to politically minimize concerns asserted

by the CCOC.

sum, Petitioner will establish

this Motion that there is no genuine issue of

material fact as to the invalidity and lack of evidentiary support for the impositions of conditions

13, 22, 23, 33 and 34, and they should be modified as a matter of law to comport with the

undisputed evidence contained in the record made in this proceeding.

The Criteria at Issue in this Appeal

No Special Conditions were imposed

conjunction with the Council's findings

concerning Criteria (iv), (v), (vii), (viii) and (ix). The conditions imposed

in R07-10 are

associated with: Criterion

(i)

(Condition 36, not at issue in this motion); Criterion (ii)

(Conditions 1-32, some of which are at issue); Criterion (iii) (Condition 37, not at issue

this

motion); and Criterion (vi) (Conditions 33-35,

of which 33 and 34 are at issue). As a result, the

Special Conditions at issue in this Motion relate only to Criteria (ii) and (vi).

The law is clear that imposing certain conditions

order to "minimize the concerns" of a

citizens' group (CCOC) are not legitimate legal reasons for imposing Special Conditions

pursuant to a grant

of siting approval. Further, the Council's imposition of the challenged

70S43114v' &71956

conditions is not reasonable and necessary to accomplish the purposes afthe Act, is unsupported

by the record of the proceedings, and contravenes the tenus of the Host Agreement. The

conditions imposed are arbitrary in nature and designed

large part simply to shift,

ex post

facto,

the City's previously agreed-upon fmancial obligations onto RWD. There is no genuine

issue of material fact present with regards to the fact that the Special Conditions are wholly

unsupported by the record and against the manifest weight of the evidence. Therefore, the

conditions are improper as a matter of law, and,

agai~

should be modified to comport with the

undisputed evidence contained in the record made in this proceeding.

II.

STANDARDS

The applicable standard for granting a Motion for Summary Judgment is

well~

established. The Dlinois Supreme Court

Chatham Foot Specialists, P.

v. Healthcare

Services Corporation,

216 ll1.2d 366 at 376, 837 N.E.2d 48 at 49 (2000), stated:

"A Motion for Summary Judgment is properly granted when the

pleadings, depositions, admissions, and Affidavits on file establish

that no genuine issue

of material fact exists and, therefore, the

moving party is entitled to judgment as a matter

oflaw:'

Under the standard enunciated by the Dlinois Supreme Court and as is similarly set forth

at Section 101.516 of the Pollution Control Board Rules, this case is clearly appropriate for

summary judgment.

In an appeal seeking review of conditions imposed upon an applicant seeking siting

approval, the Petitioner bears the burden of proving that the Application as submitted, without

the conditions, would not violate the Act

or the Board'sregulations.

Browning-Ferris Industries

fll.,

Inc. v. PCB,

179 Ill.App.3d 598,607,534 N.E.2d 616 (2

Dis1. 1989);

Jersey Sanitation

Corp.

[EPA,

PCB-00-082 at 6 (June 21, 2001). A condition that is not necessary to

accomplish the purposes

of the Act or Board regulations is arbitrary and unnecessary and must

be deleted.

Jersey Sanitation,

at 4-5. When considering whether a condition is necessary

70543114v1871956

accomplish the purpose of a Section 39.2(a) siting criterion, the Board must detennine whether

the local government's decision to impose the condition is against the manifest weight of the

evidence.

Waste Mgmt. ofill.

Will Co. Rd.,

PCB 99-141 at 3 (Sept. 9, 1999)

(affirmed, Will

Co. Bd. v. ill. PCB,

3191l1.App.3d 545 (3

Dist. 2001). Where special conditions imposed on a

siting application are against the manifest weight

of the evidence, the Board is required to

reverse the conditions.

ld.

A decision is against the manifest weight of the evidence if the

opposite result is clearly evident,

plai~

or undisputable from a review of the evidence.

Tate v.

Illinois Pollution Control Bd.,

188 m.App.3d 994,544 N.E.2d 1176(4

Dist. 1989) citing

Harris

v. Day

115 I11.App.3d 762,451 N.E.2d 262. (4th Dist. 1983).

III.

RELEVANT STATUTORY AND REGULATORY PROVISIONS AND

APPLICABLE LAW

The City's local siting ordinance sets forth procedures and requirements consistent with

the Illinois Environmental Protection Act, 415 ILCS 39.2 ("the Act"), and specifies that an

Application must meet the nine siting criteria set forth in the Act. Those criteria are:

(i)

the proposed 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 public health

safety and welfare will

be protected;

(iii)

the facility is located so as to minimize incompatibility with the character

of the

surrounding area and to nrinimize the effect on the value of the surrounding

property;

(iv)

(A) for a facility other than a sanitary landfill

or waste disposal site, the facility is

located outside the boundary of the 100 year flood plain or the site is flood-

proofed; (B) for a facility that is a sanitary landfill or waste disposal site, the

facility is located outside the boundary

of the 100 year flood plain, or if the

facility is a facility described

subsection (b)(3) of Section 22.19a, the site is

flood-proofed;

(v)

the plan

of operations for the facility is designed to minimize the danger to the

surrounding area from fires, spills, or other operational accidents;

705431l4v1871956

(vi)

the traffic patterns to or from the facility are so designed as to minimize the

impact

on existing traffic flows;

(vii)

if the facility will be treating, storing or disposing of hazardous waste, an

emergency response plan exists for the facility which includes notification,

containment and evacuation procedures to

be used in case of an accidental

release;

(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; and

(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.

addition, the City's Siting Ordinance requires that the landfill siting decision must be:

by resolution in writing, specifying the reasons for the decision, such reasons to

be in conformity with section 39.2(a) of the act.

ill

granting site location

approval, the city council may impose such conditions as

may be reasonable and

necessary to accomplish the purposes of the act to the extent that said conditions

are not inconsistent with act and the regulations promulgated

by the state

pollution control board.

(Rochelle Municipal Code, Article

Ill, Division 1, Sec. 78-77(b)).(emphasis added)

The City Council's decision on a siting permit must

be based on the evidence admitted at

the public hearing, the entire siting record and,

to the extent supported by the record,

the

recommendation

ofthe Hearing Officer.

(Id.).

granting approval for a site, the governing body of a municipality may impose only

those conditions that are reasonable and necessary to accomplish the purposes

of Section 39.2,

and are not inconsistent with the regulations promulgated

by the Board.

Waste Mgmt. ofRI.

Will Co. Bd.,

PCB 99-141 at *2 (Sept. 9, 1999). To be pennissible, conditions must be

"reasonable and necessary to meet the waste needs

of the area."

Will Co. Bd.

PCB, 319

Ill.App.3d 545, 548

(3ro

Dist. 2001).

70543114v1871956

IV.

ARGUMENT

In this case, the Applicant satisfied the burden ofproving that criterion ii and iv were met

without imposition of any special conditions. (Hearing Officers Findings of Fact, at 5, 20, 34).

No testimony was offered that Applicant did not satisfy criterion ii and

without imposition of

special conditions.

When considering the grant

of siting approval, the City Council is required to accept

uncontradicted and unrebutted expert testimony.

Industrial Fuels

Resources/Rlinois. Inc.

lllinois Pollution Control Board,

the lllinois Appellate Court overturned the Board's upholding

the denial

of siting approval involving criterion ii on the basis that the expert witnesses presented

by the applicant were never contradicted or rebutted. 227 m.App.3d 533, 546-47, 592 N.E.2d

158, 157

Dist. 1992). The Court explicitly stated "We conclude that Harvey failed to rebut

or contradict Industrial's showing that the facility was designed in light

of the public health,

safety and welfare. Therefore, the Board's affinnance

of Harvey's finding on that criterion is

against the manifest weight

of the evidence." Id. at 547, 157. Also, in

CDr Landfill

City of

Joliet,

the Board found that a City challenging siting approval ''identifieda number of flaws with

the evidence provided

by CDT (applicant), but offered no expert opinion that any particular

design feature

or operating procedure might increase the risk of hann to the public."

eDT

Landfill

City ofJoliet,

PCB 98-60, 1998 WL 112497, 12-13. The Board therefore held that

CDT met the standards

of compliance with criteria ii.

this case, Applicant's expert testimony and evidence regarding the expansion plan was

uncontradicted and unrefuted. Therefore, there is no support for the imposition

of the special

conditions, and their imposition is against the manifest weight

of evidence as a matter oflaw.

The evidence presented in this case confirms that the proposed expansion is designed to

be operated so as to protect public health, safety and welfare, and the Applicant demonstrated

705431 14vl &71956

compliance with all of the siting criteria of Section 39.2(a)

without

the Special Conditions. The

challenged conditions are not necessary to assure compliance with the Act and are inconsistent

with the regulations promulgated

by the Board.

Of the five (5) Special Conditions at issue

this Motion, the Council's Resolution

associates Conditions 13, 22, and 23 with Criterion (ii). (Resolution R07-1O). Conditions 33

and 34 were associated with Criterion

(vi). In

each case, however, the Special Conditions

imposed by the City Council are not reasonable, are not based upon evidence

the record and

are not necessary to achieve compliance with the Act. The Special Conditions are not supported

by the testimony ofthe experts, or by any portion of the record.

There is no genuine issue of material fact present in the record that the conditions

imposed are unnecessary, arbitrary and against the manifest weight

of evidence. Therefore

summary judgment must

be granted in favor of Petitioner.

A. Conditions 13, 22, 23, purportedly imposed pursuant to Criterion

(ii)

The Applicant, by its own admission, submitted an exhaustive, comprehensive

Application whose data establishes that the proposed expansion complies fully with Criterion

(ii).

addition, expert witness testimony concerning Criterion (ii) was provided at the public

hearings

by Daniel Drommerhausen, Devin Moose, Christopher Lannert and Charles Norris.

Drommerhausen, Lannert and Moose testified that the Application for the proposed expansion

complies with the requirements

of Criterion (ii). Norris had no opinion as to whether the

Application complies with Criterion (ii).

Application data

The Locale/GeologylWater Safety

Application data shows that the site complies with all requirements relevant

Criterion

(ii) and that Special Conditions

13,22 and 23 are not necessary or supported by the evidence.

70S43114vI871956

The facility's operations will be screened from view along South Mulford Road, East

Creston Road. South Locust Road, and lllinois Route 38

by a vegetated earthen benn or fence

with a total height

of no less than 8 feet. (Application, Table 2.1-1(UM). The proposed

expansion will

be located more than 500 feet from aU occupied dwellings, schools, retirement

homes, hospitals,

or like institutions unless written pennission for a closer distance from the

owner is provided prior to permit approval. (Table 2.1-1(N)).

The hydrogeologic analysis conducted

by Shaw Environmental continned that the

proposed expansion is located and designed so as to protect the public health. safety. and

welfare. (Application, Section 2.2-1). The geology

of the site will supplement the proposed

expansion design and will provide a high level of environmental safety.

(Id.).

ii.

Litter Control

The Application establishes that the site win feature a number of operating procedures to

minimize and control litter. (Application, Section 2.6-6). Incoming refuse vehicles will

required to be fully-enclosed or to have covers or tarps to prevent waste from blowing out of the

vehicles.

(Id.).

The active disposal area will be kept as small as possible and will be covered at

the end of each day with daily cover materials including soil, synthetic covers, and alternate

daily cover materials as approved by the FDA. (Application, Section 2.6-6) (but see Condition

13, which, paradoxically enough, would dramatically increase the size

of the working face). The

entire facility will be surrounded with a perimeter fence and exterior benn to collect litter that

may escape beyond the active face.

(Id.)

Daily activity will be modified during periods of high

winds.

(Id.)

Temporary litter fences will be used near the active face to provide additional

protection against blowing litter.

(Id.).

Operations will be suspended whenever sustained winds

reach 35 mph, in times of tornado alert, or if the City detennines the Operator

has

not or is not

able to adequately prevent or control blowing litter from leaving the facility.

(Id.)

Laborers will

70543

4vl 871956

patrol the facility and the surrounding property to collect any litter that escapes the active fill

area, including litter caught

by the portable and perimeter fencing, with collected litter being

placed either directly into the landfill and covered,

or placed

a secure, covered container for

later disposal.

(Id.).

Laborers will conduct daily inspection of Mulford Road from the landfill facility entrance

gate extending north to Illinois Route 38. (Application, Section 2.6-7). They will also inspect

Illinois Route

38 from the intersection of Mulford Road extending west to the Interstate 39

interchange.

(Id.).

Expert Testimony

Mr. Daniel Drummerhausen

Mr. Drommerhausen is a professional geologist at Shaw Environmental who holds a

master's degree in hydrogeology. (Tr.

1123/07

at 199). He testified concerning the process of

conducting a geologiclhydrogeologic site analysis.

His testimony included a detailed

explanation of the geology of the landfill site and the role of geology in the landfill's design,

including the importance

of predicting potential migration pathways and the accompanying need

for designing appropriate monitoring systems to ensure safety. (Tr.

1123/07 at 200-205; 214-15).

He described the extensive testing that was done to detennine conductivity at the site. (Tr.

1123/07

at 216-226).

Mr. Devin Moose

Mr. Moose is a civil engineer with more than twenty years

of experience

landfill

design, who is the director

of the St. Charles, Illinois office of Shaw Environmental. He

explained that the Application in this case complies with the relevant regulations pertaining to

seismic impact zones, flood plains, wetlands, endangered species and setback requirements. (Tr.

1124/07 at

146-150~

PowerPoint 21 to 25;

see also

Application 2.1-1 to 14). For example,

705431I4v1871956

although the required setback from community water supply wells is 2,500 feet,

this case the

proposed facility is more than 6,000 feet from the nearest such well. (Tr.

1124/07

at 149-150).

Mr. Moose testified that the proposed expansion will include exhumation of the old unlined

landfill, Unit

1, which will occur as quickly as possible, with the waste from Unit 1 being placed

into Cell One

of the expansion area. (Tr. 1/24/07 at 177-79). This process will involve

removing the accumulated waste from an area that

is currently unlined, and placing it into a

modem, lined area, thereby providing substantial enviromnental benefits.

(ld.)

He explained

that a construction quality assurance

e'CQA'')officer will be

on~site

to oversee the exhumation,

and that the exhumation activities will be reviewed and permitted

by IEPA. (Tr. 1/24/07 at 178-

179).

Mr. Charles Norris

Mr. Charles Norris, a consultant and professional geologist retained by an objector, the

Concerned Citizens

of Ogle County ("CeOC"), is not an engineer, and had no opinion

concerning the engineered components

of the proposed expansion. (Tr. 1/25/07 at

25S~56;

259).

Most importantly,

Mr. Norris testified that he would not render an opinion as to whether the

proposed expansion satisfies Criterion (ii). (Tr.

1126/07

at 156). He did, however, opine that if

the City Council granted siting approval, the Application would likely be routinely approved by

the IEPA. (Tr. 1/25/07 at 262). He further opined that Unit 1 could probably be managed even

without any exhumation, and he encouraged the City Council

to consider alternatives to

exhumation

of Unit 1. (Tr.

1/25/07

at 324-25). Mr. Norris went on to explain that he would

make no recommendation to the City Council concerning Dnit

1. (Tr.

1/26/07

at 195).

Mr. Christopher Lannert

Mr. Christopher Lannert is president of the Lannert Group, is a registered landscape

architect

Illinois, and offered his expertise with regards to the areas of planning, community

70543114v1871956

consulting and landscape architecture. (Tr.

1122107

at 80,81). Mr. Lannert testified that the

proposed facility is compatible with the general character and agriculture

of the surrounding

area and found no incompatibility at all with the proposed landscape plan. (Tr. 1/22/07 at 96,

97). Mr. Lannert testified that the proposed berm on Creston Road would be compatible

to the

character

of the landscape at 8 to 10 feet tall. (Tr.

1122107

at 92, 100, 153). Nowhere

his

testimony or evidence submitted resulting from his observation or testing

of the character of the

surrounding area did

Mr. Lannert find that a berm height of 14 feet was necessary, or that a

secondary operational berm was necessary.

When viewed together, the Application and the testimony

of the experts at the hearing

showed conclusively that the Applicant has met the requirements

of Criterion (ii) without the

need for imposition

of the Special Conditions at issue

this Motion.

Condition 13. There is no genuine issue of material fact present that imposing a 6

year deadline to exhume waste from Unit

is not supported

the record, is against

the manifest weight of the evidence, and therefore must be stricken as

a matter of

law.

Condition 13 requires that:

The Operator shall complete the exhumation and redisposal

of waste from Unit I

as soon as practicable, but in no event later than six (6) years from the date an

IEPA permit

is issued for the expansion, except as otherwise provided by the City

Council for good cause shown. The waste exhumation and redisposal shall be

restricted to the months

of November, December, January, February and March

unless it

is demonstrated to the City Council that the process can occur in other

months without off-site odor migration or other impacts associated with the

process.

(Resolution R07-10, at Attachment

A" 13).

The Application makes clear that the waste proposed to be exhumed from Unit 1 was

continuously deposited at the site year-round, over a twenty-three year period, from 1972-1995.

This represents a substantial amount

of waste in terms of weight and volume. Condition 13 not

only requires that all

ofthe waste be exhumed within six years, it also limits exhumation work to

70543114vl 871956

the months of November through March, thus effectively requiring the Operator to remove 276

months (23 years x 12 months) of accumulated waste within, at most, and under optimal

conditions, 30 months (6 years x 5 months). Notably, the months during which exhumation is

permissible under this Condition are those most likely to include substantial periods of inclement

weather. There is no evidence in the record to support the proposition that the exhumation must

be completed within six years in order to protect the public health, safety and welfare.

fact,

special condition

13 imposes such unnecessary time constraints upon the exhumation that it may

in fact jeopardize the safety of the exhumation process.

The Application includes Shaw Environmental's discussion of the proposed exhumation,

and provides detailed plans and procedures, including the equipment to be used, the method of

excavation of cover, the proposed hours and times of year for the exhumation, the nature and

quantity of cover to be used, the procedures to be used in addressing any hazardous waste that

may be encountered, an air monitoring program, stormwater management requirements, and

other safety procedures. Shaw Environmental generally estimates that relocation

ofUnit 1 could

be accomplished over a 5.10 year period. (Application, Section 2.6, page 2.6-24).

The only other empirical evidence concerning the exhumation

ofUnit 1 was provided by

Devin Moose, of Shaw Environmental, who explained that the full exhumation process would

take

"on the order of about 10 years" to complete. (Tr. 1/25/07, pp. 321-23) (emphasis added).

Moreover, the Host Agreement negotiated between the City and RWD provides at Section 7.4

that the exhumation is to be "commenced and completed within a commercially reasonable

time," with the City to bear the first $850,000.00

ofthe cost and the Operator to bear the balance

of the cost. This cost apportionment was based on the parties' clear and unequivocal agreement

that exhumation would be performed in a

commercially reasonable

timeframe. Moreover, the

70543114vl 871956

Host Agreement clearly provides that the timing, sequence, and manner of exhumation will be

determined by the IEPA, and by the mutual agreement of the City and the Operator.

There is no scientific or professional analysis establishing the necessity, or even the

feasibility, of performing such an accelerated exhumation. The record and the expert testimony

do not establish that the acceleration is necessary to protect the public health, safety and welfare.

The timeframe proposed in Condition

13 was not established as a result of a risk assessment,

feasibility study,

or health and safety analysis, and did not arise pursuant to any investigation

into the nature, quality, and quantity of waste

Unit 1. Notably, the expert for Concerned

Citizens

of Ogle County

("ceoc"),

Mr. Norris, testified that he did not even believe

exhumation

of Unit 1 was necessarily required

at all

to protect public safety. (Tr. 1/25/07 at 324-

26).

fact, he specifically urged the Council to consider

not

exhuming Unit 1.

(Id.).

During the meeting that led up to passage ofResolution R07-10 and the imposition ofthe

Special Conditions, the Attorney for the City Council explained that it could be assumed that

between two and two and a

half million yards would need

be exhumed. (Tr. 4/11/07 at 87).

He opined that,

"It

would be difficult to certainly complete it within six years" and noted that

"testimony at the hearing indicated that the applicant, the operator believed that a 10 year period

was the appropriate period over which this waste could

be exhumed and later then redisposed."

(Tr. 4/11107 at 85) (emphasis added).

When the City Council met

on May 8, 2007 to discuss the Motion for Reconsideration,

Council Member Berg appeared to have second thoughts, and expressed concern that forcing a

rushed exhumation could lead to problems, noting that ''whenyou start putting arbitrary time

periods on things - there'snot one person out here that has a clue how long this is going to take.

. .

We're sitting here trying to make a decision that frankly we don'thave the knowledge to make

as far as how long it's going to take." (Tr. 5/8/07 at 23) (emphasis added).

70543114vl 871956

Berg further noted that "when you start hurrying people on things that's when things

happen when you put those arbitrary time lines. deadlines on people." (Tr.

5/8/07

at 24-25)

(emphasis added). COWlcil Member Hayes echoed that concern, observing that:

I don'thave the expertise to make this decision, but the fact

of the

matter is we

don't need it to be done any faster to make it more

risky to the health, safety and welfare of the people. . . .I'm sure

that the Applicant and the operator would like to have it out of

there and into a land facility as soon and as practically fmancially

as possible

....[W]hat's in the best interest of the community is

get it out of there - like you said, get it out of there as soon as we

can but don'trace to get it out of there to where we can't get the -

where the blowing factor is connected, the smell is an issue, and

the safety is issue and the inspections are impractical. . . So in my

opinion we have to - we can't restrict it, shorten up the time any

or anything. We have to allow some flexibility, because no

one knows what we're getting into when we get there.

(Tr.

5/8/07

at 27-28) (emphasis added).

was pointed out during the COWlcil's deliberations that the Host Agreement calls for

exhumation to

be completed within a commercially reasonable time, as did the Application. The

Council Members, however, were clearly uncomfortable with the concept of something being

"commercially reasonable," calling that concept "too big

of a gray area" and an "undefined

standard." (Tr.

5/8/07

at 29,30).

Of even greater significance is the fact that this Condition seeks to wrest from the IEPA

its regulatory authority to determine the permit conditions under which exhumation and

relocation

of the waste will occur. Thus, the Condition is not only inconsistent with the Board's

regulations, it is in direct contravention

of the regulations.

is the IEPA, not the City Council,

that should decide the methodology and timeframe for the exhumation.

Finally, the Applicant agrees that Condition

13 "very likely does not meet the applicable

legal standards, and would invite a successful appeal because it is not supported by the record."

(Applicant Response to Operator Motion for Reconsideration at 4 and 7).

70543114vl 871956

Electronic Filing: Received, Clerk's Office, November 30, 2007

summary, requiring completion of the full exhumation process within the compressed

timeframe dictated by Condition 13 would drastically increase the cost of operations, and

severely undermine the Operator's ability to go forward with the proposed expansion.

Moreover, it contravenes the clear and unequivocal agreement ofthe parties on this specific issue

as reflected in the Host Agreement, which, again, was submitted as part

of the Application in this

case.

is also in direct conflict with the Board's regulations, inasmuch as it seeks to vest the

City Council with authority to determine the permit conditions for the exhumation. Finally, this

condition is unsupported by evidence

the record, and is not required to meet Criterion (ii).

Clearly, Special Condition 13 should, and must, be amended to confonn to the record and

accordingly, as a matter

of law, should require the exhumation to take place within 10 years from

the date an IEPA permit is issued for expansion.

Conditions 22 and 23. There is no genuine issue of material fact present that

imposing expanded berming requirements is not necessary to accomplish the

purposes of the

Act, is against the manifest weight of the evidence, and therefore

must be stricken

as a matter of law.

Condition 22 requires that:

The plan

of operations shall include the construction of operational screening

berms

of between six (6) and eight (8) feet in height along the Southern edge and

partially along the East and West edges of operating cells

help to block the

operations from view from Creston Road as well as help contain litter and reduce

noise impacts. The Operator shall propose, and the City Manager shall consider

for approval, the placement and limits

ofthe operational benns prior to each cell's

development. Final approval must be obtained prior to new cell construction.

The City Manager shall consider the height

of the active face, the distance from

the site boundary, and the presence of other visual barriers (such as Unit 2) and

the effectiveness of other litter and noise control strategies (such as litter fences

and permanent perimeter berms)

making its determination.

(Resolution R07-10, Attachment A,

, 22).

Condition 23 requires:

Perimeter

benns shall be built in advance of the cells in order to screen operations

to a reasonable extent.

is recommended to require the benns to be built at least

500 feet

advance of the Easternmost edge of the cell being constructed. By way

70543114v1871956

Electronic Filing: Received, Clerk's Office, November 30, 2007

of example, prior to completion of Cell 3's liner, the Southern berm along Creston

Road shall

be constructed from E 4,200 to E 6,500, which extends approximately

600 feet East

of the cell. The vegetation shall be established (with at least a one-

year growing period) prior to waste being placed within 400 feet

of a cell with

active waste placement. The

berm shall be at least 14 feet in height, placed

between the waste footprint and Creston Road, and located between

4,500 and

7,500.

(Resolution R07-10, Attachment

A, , 23).

As a threshold matter, Condition 22 vests excessive, arbitrary discretion

in the City

Manager to decide

benning requirements on an

ad hoc

basis, creating the potential for disruption

of operations at the site. In addition, Conditions 22 and 23 call for extended berm heights and

placements for both the perimeter berm, which must be fourteen (14) feet high according to

Condition 23, and for the operational screening berms, which must be six (6) to eight

(8) feet

high according to Condition 22. Inasmuch as Condition 23 requires a fourteen (14) foot tall

perimeter berm, it is unnecessarily duplicative and redundant to also require the construction

six (6) to eight (8) foot tall operational screening berms inside the facility. Further, City Council

Attorney Moran conceded that the

berm required in Condition 22 "is not intended and generally

does not function as a fence

or as a barrier for litter." (Tr.

5/8/07,

p. 33).

is further conceded

that

no testimony from Mr. Lannert supports raising the berm that is the subject of Condition 23

from 8-10 feet to 14 feet. (Tr.

5/8/07,

pp. 37,39,41,42).

The Administrative Code provides that a facility located within 500 feet of a township or

county road or state or interstate highway shall have its operations screened from view by a

barrier no less

than

8 feet in height. (Title 35, Section 811.302(c» (emphasis added).

keeping

with this, the Applicant specifically proposed to screen the facility's operations from view along

South Mulford Road, East Creston Road. South

Locus Road, and Illinois Route 38 by a

vegetated earthen

berm or fence with a total height of not less than 8 feet. (Application, Table

2.1-1

(LIM).

Yet here, without any basis in the record. the Council seeks to require that the

70543114v\ 871956

perimeter berm be fourteen (14) feet high, or seventy-five percent taller than the law requires.

This mandate is excessive, particularly given the fact that the landfill is located

in an agricultural

area consisting primarily

of fields of corn and soybeans. Moreover, testimony by witnesses

Shaw Environmental and Chris Lannert at the hearing established that the proposed

benns were

carefully considered

by the City in formulating the Application.

As explained above, the Application delineates numerous, detailed operating procedures

that will minimize and control litter. (Application, Section 2.6-6). In addition to requiring that

incoming vehicles must

be fully-enclosed or be covered with tarps, the active waste disposal area

will

be kept small and will be covered at the end of each day.

(ld).

The entire facility will be

surrounded with a perimeter fence and exterior berm which will catch litter that might otherwise

escape beyond the active face.

(ld.)

Daily activity will be modified during periods of high

winds, and temporary litter fences will be used near the active face, with operations suspended

during periods

ofhigh, sustained winds, tornado alert, or ifthe City fmds that the Operator is not

adequately controlling litter.

(ld.)

Laborers will patrol the facility and surrounding area to

collect any escaping litter, and will conduct daily inspection

of Mulford Road from the landfill

facility entrance gate extending north to Illinois Route 38. (Application, Section 2.6-7). They

will also inspect Illinois Route 38 from the intersection

of Mulford Road extending west to the

Interstate 39 interchange.

(ld.).

The engineering challenges and additional costs associated with these additional berm

requirements would have a serious, deleterious effect on the economic feasibility of the project,

while offering no additional benefit to the public health, safety and welfare

or litter control.

Increasing the berm height would necessarily create a much larger base for the berm, not only for

engineering reasons but also because the

benn must be landscaped and maintained, and worker

safety concerns would limit the degree

of permissible slope. Thus, a higher berm consumes a

70543114vl 871956

substantial amount of footprint area, making that area unavailable for waste disposal. As a

result, the additional berming requirement contributes

to making the project fmancia1ly and

technically impracticable and infeasible, and is inconsistent with the terms

of the Host

Agreement.

The discussion

of the City Council members when they met on May 14, 2007 to

reconsider the conditions are illuminating, and shed light on the motive behind these conditions.

At that meeting, Condition 22 only narrowly survived,

by a vote of 4 to 3. Council Member

Hollonbeck observed that the active faces are so high she didn'tbelieve an operational screening

berm, no matter what its height, would do anything

to obstruct the view of operations. (Tr.

5/8/07

at 36). She further noted that she

had

taken another look at the pictures provided by

expert witness Lannert, and that with respect to those pictures:

if you look back at those it didn't seem to me that an operational

berm would

do much, so I confess I hadn't done that when we

were looking at special conditions. Just the topography is such that

either the rollingness

of the site or whatever you can see this onsite

tower really easily but you can't really see the operational - the

active face. So that was my opinion on - after rereading and

looking at their Item 6, Special Condition 22 I would

be inclined to

delete

it.

(Tr.

5/8/07

at 36-37) (emphasis added).

The transcript

of the May 8, 2007 Council meeting also reveals that Council Members

erroneously believed that granting the Motion'srequest concerning Special Condition 22 and

would leave the landfill with no berms whatsoever. Council Member Hayden stated "they say

it's tactically and financially impractical to construct a 14-foot berm.

we eliminate both of

these we either have a zero foot - no berm or 14-foot high, there's nothing suggested in

between?" (Tr.

5/8/07

at 35). The Council's attorney, Mr. Moran, replied, ''Nothinghas been

suggested in between

by what'sindicated here, that'scorrect."

(Id.).

However, as to Special Condition 23, Ms. Hollonbeck then responded that:

705431l4v1 871956

Mr. Lannert does propose a berm all the way around the perimeter

and it would move along with the construction

ofthe new cells, but

it was only 8 to 10 feet tall, not 14... So the - the motion

consider - to reconsider didn't say go back to 8 to 10 feet, it just

said 14 feet is technically and fmancially impractical. So

don't

know what we do about that.

(Tr.

5/8/07

at 37).

Mr. Berg opined that the operational berm was «more

of a punitive measure to the

operator than it is an operational advantage to anybody.

It's saying you have done a bad job,

we're going to make you put another berm in." (Tr.

5/8/07

at 38) (emphasis added). Member

Hollonbeck agreed.

(Id.).

After some discussion, Attorney Moran then suggested, "Even though

the motion

hasn'tspecifically requested relief other than the suggestion that the 14-foot berm be

simply deleted, that requirement, you could certainly consider based upon the contents of the

record

of modifying the condition to reflect what you believe to be the appropriate evidence

presented and what the evidence would support, and it may be that 8 to 10-foot berm as set out in

the report that

Mr. Lannert did." (Tr.

5/8/07

at 39). Ms. Hollonbeck pointed out the testimony

of Lannert concerning the proposed 8 to 10 foot benn, and suggested that the Council approve

that berm height.

(Id.

at 40). She opined again that the proposed 14 foot berm had been intended

merely as a punitive measure.

(ld.

at 41).

Council Member Eckardt then declared, "I think the conditions were put in there because

of previous performance and

I think that's part of what this is all about, and I think for us to

drop

any of those would be a big mistake." (Id.

at 42) (emphasis added). When others tried to

determine whether there was any evidence in the record to support the heightened berm

requirements, it was observed that

it was the Council'sconsultant who talked about the so-called

operational berms, and Attorney Moran then observed "I don't recall if that was specifically

identified

one of the witnesses in their testimony or referred to."

(ld.

at 42). He went on to

70543114vl 871956

confirm that it was the Council's hired consultant who came up with the idea for a 14 foot

perimeter berm.

(Id.).

When Council Member Hayden asked Attorney Moran whether there was any evidence

in the record to support the 14-foot requirement, Moran responded that he would have to: "

...go

back and look through the record. Frankly, I don't recall specifically that number being used

either in the application or the testimony, although I can'tsay definitively that it's not someplace

in the record."

(Id.

at 47). He then opined, "Obviously the consultant determined that was an

appropriate height

...[and] they obviously felt on some basis that the 14 feet was appropriate, but

can't point to you a specific part of record where we see that

feet."

(Id.

at 47-48).

(Emphasis added).

Ultimately, when it came time to vote on the perimeter berm, Council Member Hayden

declared that he was voting

to affIrm the Special Condition's requirement of a 14 foot berm,

explaining,

"I make that vote because of the inconsistencies in the record and

I have to go with

the experts that I hired."

(Id.

at 52.) (emphasis added). The rest of the Council Members

followed suit in voting to affinn the Special Condition.

Rather

than

relying on the evidence in the record, the Council members appear to be

motivated by a desire to be punitive and ''hold[RWD's] feet to the fire", and by an unjustified

reliance on the opinion

ofthe Council's"paid" consultant. As Council Member Hayden stated at

one point, "I listened to the consultant, I

think

he's smarter than I am..." (Tr. 4/11/07 at 91).

Moreover, at least one Council Member appeared to believe the consultant may have been

influenced

by a desire to be punitive as well, as illustrated in the following colloquy:

MR.. HAYDEN: Where did the experts get that information from

when they came up with the conditions, they

mew it had to meet

the record?

MS. HOLLONBECK: I guess

I'm going

go along with Demris'

analysis, maybe it was just a punitive measure to put those

70543114vI871956

operational berms in. because it wasn't part of Mr. Lannert's

presentation.

(Tr.

5/8/07

at 41) (emphasis added).

The transcripts make clear that there was a detennined attempt to use RWD's past

operational shortcomings as a whipping boy to justify the imposition

of conditions entirely

unrelated to those shortcomings or violations, and this is a prime example

ofthat effort.

Conditions 22 and

23 enjoy absolutely no support

the record, and offer no additional

benefit to the public health, safety, and welfare. The imposition of Conditions 22 must therefore

be stricken

as a matter of law as being against the manifest weight of the evidence, and

Condition 23 should be amended

conform to the record to require berms between 8 to 10 feet

in height, consistent with the evidence presented

in this proceeding and the application filed in

this matter as follows:

Perimeter benns shall

be built

advance ofthe cells in order to screen operations

to a reasonable extent.

is recommended the berms be built at least 500 feet in

advance

of the Eastern-most edge of the cell being constructed. By way of

example, prior to completion of Cell 3's liner, the Southern berm along Creston

Road shall

be constructed from E 4,200 to E 6,500, which extends approximately

600 feet East

of the cell. Vegetation shall be established (with at least a one-year

growing period) prior to waste being placed within 400 feet

of a cell with active

waste placement. The berm shall be an undulating berm 8 to 10 feet in height,

placed between the waste footprint and Creston Road and located between E

4,500 and E 7,500, with plant material being placed on top

of the berm in

accordance with the landscape plan contained in the Application, including,

without limitation, plant material in excess

of six (6) feet in height as provided for

therein.

Conditions 33

and 34. There is DO genuine issue of material ract that imposing the

cost

of additional Mulford Road improvements solely on Petitioner

not necessary

to accomplish

the purposes of the Act as to Criterion (vi), is not supported by the

record,

and must be amended

conform to the record as a matter of law.

Condition 33 provides that:

The following roadway improvement shall

be made

Mulford Road, at the

expense

ofthe Operator, prior to acceptance of waste within the expanded facility

waste footprint:

70543114vl 871956

The reconstruction of Mulford Road between Route 38 and the

existing landfill entrance shall

be designed to a rural standard with

a dust free, all weather surface, provide a design weight limit

80,000 pounds and shall be at least two lanes wide.

(Resolution 07-10, Attachment A,

1 33).

Condition 34, as amended

by Resolution R07-18, requires:

The improvement to Mulford Road as described

special

condition 33 above shall

be completed from the existing landfill

entrance to Creston Road,

no later than the date on which the

proposed new entrance for the expansion is built and completed as

required in Special Condition 16. The Operator shall

pay all costs

of said improvements to the new landfill entrance, and a portion of

the cost of the improvements from the new landfill entrance to

Creston road proportionate to the anticipated traffic attributable to

the expanded facility, as detennined

by a traffic study.

(Resolution R07-18).

Traffic expert Werthmann testified that most

of the traffic that can be expected to use the

landfill

is already using it, since the expansion is simply a continuation of existing operations.

(Tr.

1123/07

at 23-24, 29, 30-31). Werthmann'sestimates were extremely cautious, and although

the landfill expansion is expected to eventually process as

much 1,000 tons of waste per day,

Werthmann used a substantially higher figure - 1500 tons

per day -

his calculations. (See Tr.

1123/07

at 29). Werthmann's studies showed that the increased volume of traffic on Mulford

Road would be

~'not

significant by any means." (Tr.

1/23/07

at 34-35) (emphasis added). The

Hearing Officer also noted that the evidence presented

at the hearing showed that "the majority

of the traffic generated by the proposed expansion is already on the roadway system. There will

be little new traffic generated by the expansion." (Hearing Officer's Findings of Fact,

Conclusions

of Law, and Recommendations at 31 ) (emphasis added).

Werthmann testified concerning the existing plans

to improve Mulford Road to

accommodate transfer trailers, to reconstruct the road as a two-lane road with

80,000 pound

weight limit. (Tr.

1123/07

at p. 21). The Hearing Officer'sFindings of Fact and Conclusions of

70543114vl 871956

Law reflect that the sole evidence concerning Criterion (vi) was presented by Werthmann.

(Hearing Officer'sFindings

ofFact and Conclusions of Law, at 28-34).

An examination

of the evidence reveals that the proposals of Special Condition 33 are

largely duplicative

of upgrades to Mulford Road which are already proposed for this section of

road, which will be the primary route to and from the landfill.

(See

Tr.

1123/07

at 21).

Werthmann testified that 80%

of the landfill traffic would use this route. (Tr.

1/23/07

at 27;

PowerPoint Slide 14). Nevertheless, despite testimony that the increase

traffic would be "not

significant by any means," Condition 33 requires that the Operator bear the

full

cost of the road

improvements to the Mulford Road upgrades, and also adds a requirement that the road

improvements must

be completed

prior to acceptance ofany waste within the expandedfacility

waste footprint.

Condition 34 then requires that, in addition to the upgrades mandated

Condition 33,

the Operator must also provide the same upgrades to Mulford Road heading

south

from the

landfill entrance to Creston Road. Among the unusual aspects of this requirement is the fact that

the City Council here seeks to impose a requirement that RWD pay the entire cost of improving

a township road.

addition, the area encompassed in Special Condition 34 is one that is already targeted

for growth as a commerciaVindustrial area, and, as Council Member Hollonbeck pointed out, the

new landfill site entrance "won't be built for several years...and by that time there could be

additional industry using Creston Road and Mulford Road." (Tr.

5/8/07

at 70). Council Member

Hayden additionally observed: 'The person that benefits from the construction of the road,

probably across the street is zoned 12, they'rethe people that probably will benefit from it."

(Id.

at 72) (emphasis added). Warehouses and industrial sites generate far more traffic per acre than

a landfill, and it is clearly inequitable to force the Operator to make road improvements before it

10543114v1 871956

even opens the new entrance, and to bear the cost of road improvements for the benefit of other

entities.

Significantly, City Council Attorney Moran also conceded that there was no testimony or

evidence presented

by any experts regarding cost allocation as related to potential traffic increase

or burdens resulting from the expansion. (Tr.

5/8/07

at 69).

Nevertheless, the members of the Council were, once again, inclined to defer to their

''paid''consultants and ignore the evidence. As Mr. Berg declared, "1 think our City staffgave us

a very good suggestion here and I'm inclined to go with what our City staff told us) that's my

opinion:' (Tr.

5/8/07

at 76). Ms. Hollonbeck quickly agreed, and Mr. Berg then added, ''That's

what we pay these people for is to give us the sound advice, that's my opinion." (Tr.

5/8/07

76-77).

the view of the Council Members, it appears that the actual evidence contained in the

record was irrelevant, or, at best, superfluous, and all they really needed to decide the siting

application was the unsubstantiated opinion

of their "hired" consultants. Accordingly, at most,

only the following Special Condition terms would be supported by the record made in this

proceeding:

The Operator and the City shall share in the cost improvements

of Mulford Road

from Route 38 to Creston Road

on the basis of linear foot frontage, with the

Operator's frontage share being 7,813 feet (representing the footage on both sides

of Mulford Road from Route 38 to the Union Pacific Railroad Tracks, and the

footage on the wast side

of Mulford Road from the railroad tracks to Creston

Road) and the City's share 2,573 feet (representing the footage on the east side of

Mulford Road from the railroad tracks to Creston Road). The Operator shall

advance the entire cost of the improvements, and the City shall contribute its

share upon completion of the improvements. Operator shall have a right of

recapture for its share of the costs against the adjacent benefitting properties, and

an appropriate Recapture Agreement shall be executed and recorded.

70543114v! 871956

CONCLUSION

The Application submitted for the proposed expansion

of the Rochelle Municipal

Landfill was exhaustively thorough in every detail,

arid reveals that the expansion meets every

one

of the Section 39.2 siting criteria.

The challenged Special Conditions as now structured were clearly

not necessary to

accomplish the purposes of Section 39.2 of the Illinois Environmental Protection Act ("the

Act"), and are not supported

by any portion of the record.

previously noted, these conditions

were imposed clearly to "minimize fears"

ofa citizen group rather than to meet the requirements

of the Act. Criterion ii and vi were clearly fully met without the imposition of Special

Conditions.

The unilateral reallocation

of previously agreed-upon costs under the guise of special

conditions is also against the manifest weight

of evidence and unsupported by any evidence on

the record. Never in the history

of Section 39.2

has

the PCB held that special conditions can be

used to allocate or shift costs. Rather, the appropriate place for determining cost allocation is in

a Host Agreement. Section 39.2 recognizes the significance of the role of a Host Agreement,

and accordingly requires that where there is an existing Host Agreement, that Agreement must

be included as part

ofthe record ofthe proceeding.

In summary, the Special Conditions imposed

by the Rochelle City Council in their

present fonn are not supported by any expert testimony, and the Applicant's expert testimony

was completely unrefuted as to the compliance of the Applicant with their evidentiary

obligations under the Act. The Special Conditions as now presented are inconsistent - and, in at

least one instance, in direct contravention with - the regulations promulgated by this Honorable

Board. Moreover, there is no support

the underlying record for these conditions as they now

stand; the overwhelming majority

of which run contrary to the terms ofthe Host Agreement and,

70543114v1 871956

in many cases, are merely being used to unilaterally shift City costs onto RWD after the parties

have already negotiated a mutually acceptable agreement for the operation

of the landfill site.

Accordingly, at a minimum, summary judgment should

be entered as to Special Conditions 13,

22,23,33 and 34 in the manner and form outlined herein.

Special Conditions

13,22,23,33 and 34 are against the manifest weight of the evidence,

are contrary to the record and expert testimony and were arbitrarily imposed. Again, as noted

above, they can only stand in modified form in the manner and fonn suggested herein.

As a

matter

of law, no genuine issue of material fact exists regarding the impropriety of these

conditions

in their present form. Resultantly, summary judgment in favor of Petitioner, as

requested herein is appropriate.

Dated: November

30, 2007

Charles

F. Helsten

Hinshaw & Culbertson

LLP

100 Park Avenue

P.O.

Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully submitted,

ROCHELLE WASTE DISPOSAL

By:

Charles F. Helsten

Charles

F. Helsten

One

of Its Attorneys

This document utilized 100% recycled paper products.

70543114v1 871956