1

GEORGE MUELLER

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

Petitioner,

v.

PEORIA COUNTY BOARD,

Respondent.

)

)

)

)

)

)

)

)

)

(Pollution Control Facility Siting Appeal)

NOTICE OF FILING

PLEASE TAKE NOTICE THAT

on the 8th day of September, 2006, George

Mueller, one of the attorneys for Petitioner, Peoria Disposal Company, filed the original

Motion for Partial Summary Judgment and Memorandum of Law In Support of Motion

for Partial Summary Judgment, with the Clerk of the Illinois Pollution Control Board, via

electronic filing as authorized by the Clerk of the Illinois Pollution Control Board.

Respectfully submitted,

PEORIA DISPOSAL COMPANY

BY: ________________________________

GEORGE MUELLER,

One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

1

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

sitingBEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

Petitioner,

v.

PEORIA COUNTY BOARD,

Respondent.

)

)

)

)

)

)

)

)

)

PCB 06-184

(Pollution Control Facility Siting Appeal)

MOTION FOR PARTIAL SUMMARY JUDGMENT

NOW COMES

Petitioner, Peoria Disposal Company, (hereinafter “PDC”) by its

attorneys, Brian J. Meginnes and George Mueller, and moves for partial Summary

Judgment only as to its alternative claim that the Peoria County Board’s Findings of

Fact, with respect to substantive siting criterion v, were against the manifest weight of

the evidence and, in support thereof, states that:

1.

415 ILCS 39.2(a)(v) requires that an applicant for local siting approval for

a new regional pollution control facility prove that the plan of operation for the facility is

designed to minimize the danger to the surrounding area from fire, spills or other

operational accidents.

2.

PDC presented extensive material in its written Application for Siting

Approval, establishing its compliance with the aforesaid criterion. Additionally, PDC

presented the testimony of its Vice-President of Development and Operations, Ron L.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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2

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Edwards, on February 21, 2006, on this criterion. In addition to discussion and

explanation of the actual operational plans to satisfy this criterion, Mr. Edwards

indicated that PDC merely sought an expansion of its existing solid hazardous waste

disposal facility for the purpose of continuing operations at existing levels for

approximately an additional fifteen (15) years. He described that, during the previous

operating history of the facility, there had been no significant fires, spills or other

operational accidents. Mr. Edwards’ testimony was neither impeached nor rebutted.

No evidence was presented by any opposition witness with respect to this criterion.

3.

Although no final written decision was made by the Peoria County Board

within one hundred eighty (180) days from the date of the filing of PDC’s Application for

Siting Approval, PDC acknowledges, for purposes of this motion, that the Peoria County

Board believes that it may have adopted certain findings of fact with regard to siting

criterion v. In ¶10 of its Petition for Review before this Board, PDC has alleged that the

purported finding of the Peoria County Board that PDC has only proven siting criterion v

if certain special conditions were imposed was against the manifest weight of the

evidence and was not supported by the evidence.

4.

On April 6, 2006, the Peoria County Pollution Control Facility Siting

Committee, which was in fact a committee of the whole of the Peoria County Board,

conducted a meeting at which a motion was made to find that PDC had satisfied siting

criterion v. Subsequently, an amendment was proposed to said motion to find that

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

3

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

Peoria, IL 61602-1153

(309) 637-8514 - Facsimile

siting criterion v was only satisfied upon the condition that PDC pay to Peoria County

the sum of five dollars ($5.00) per ton of waste received during the life of the proposed

expansion to establish a so-called perpetual care fund. This amendment was never

seconded, but PDC acknowledges, for purposes of this motion only, that the Peoria

County Board may believe that it passed this motion as amended.

5.

No minutes, resolutions, ordinances or other written evidence of what

transpired at the aforesaid meeting of April 6, 2006, exists. However, a transcript of the

oral proceedings at that meeting was created and, while the same was never made a

part of the record available to the public in this matter, the same was posted in a timely

fashion on the Peoria County Government internet website. Portions of said transcript,

relating to the actions of the Peoria County Pollution Control Facility Siting Committee

on criterion v on April 6, 2006, are attached hereto and made a part hereof as Exhibit

“A”.

6.

On April 27, 2006, certain proposed findings of fact with regard to criterion

v were filed in the Peoria County Clerk’s office. These were presumably prepared by

Peoria County staff members. While these proposed findings of fact do not conform to

the actions of the Peoria County Pollution Control Facility Siting Committee of April 6,

2006, they purport to be findings approved by the committee on that date. These

proposed findings do include a finding that PDC only satisfies criterion v on the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

4

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

condition that it pay to Peoria County the sum of five dollars ($5.00) per ton of waste

received during the expanded life of the facility.

7.

On May 3, 2006, the Peoria County Board met and voted on some

findings of fact for the PDC application. The original movant at that meeting stated, “I

move to adopt the findings of fact as presented this evening…” Things then became

complicated because the movant proposed additional oral amendments and because

an Assistant State’s Attorney incorrectly explained immediately before the vote began

that “you’re voting to support the finding of fact previously decided.” Immediately after

said explanation, the motion passed.

8.

Contrary to the allegations of the movant regarding findings of fact as set

forth hereinabove, no findings of fact were presented at the Peoria County Board

meeting of May 3, 2006. Contrary to the advice of the Assistant State’s Attorney to the

Peoria County Board, the proposed findings of fact, file stamped April 27, 2006, were

not what was “previously decided.”

9.

No minutes, resolutions or ordinances exist to provide a written record of

what actually transpired at the Peoria County Board meeting of May 3, 2006.

Accordingly, no final written decision of the Peoria County Board, with respect to its

actions of May 3, 2006, exists. However, the Peoria County Board has indicated, in its

amended index of the record it filed with the Pollution Control Board in this appeal, that

the Court Reporter’s Transcript of the oral proceedings on May 3, 2006, constitutes the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

5

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

“record and transcript of Peoria County Board’s decision and findings.” (C13710-

C13748). While this entry on Peoria County’s Amended Index of the Record on Appeal

filed with this Board is dated May 3, 2006, no transcript of the oral proceedings at the

Peoria County Board meeting existed on that date. Moreover, this Transcript was

never, prior to PDC’s Petition for Review, part of the record available to the public in this

case. Said transcript filed by Peoria County is not file stamped as having been received

by the Peoria County Clerk. However, said Transcript was posted on the Peoria County

Government Internet Website on May 12, 2006, more than one hundred eighty (180)

days after PDC filed its Siting Application.

10.

The foregoing notwithstanding, PDC acknowledges, for purposes of this

motion only, that the Peoria County Board believes it adopted the proposed findings file

stamped April 27, 2006, at its meeting of May 3, 2006.

11.

There is no material issue of fact with regard to whether or not PDC

unconditionally satisfied criterion v with its Application and evidence and this Board

should rule that, as a matter of law, a finding that criterion v is only satisfied on the

condition that PDC pay to Peoria County five dollars ($5.00) per ton of waste received

during the life of the expansion is unlawful, invalid and unsupported by any evidence,

whatsoever. Such finding is defective for one or more of the following reasons:

A)

PDC’s evidence that criterion v is unconditionally satisfied was neither

rebutted nor impeached with no evidence on this criterion, other than

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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6

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

PDC’s evidence. In such situation, the County Board is not free to

disregard the evidence.

Industrial Fuels and Resources v. PCB,

227 Ill.

App. 3

rd

553, 592 N.E.2d 148 (1

st

Dist. 1991).

B)

No evidence exists in the record to support the need for or the

appropriateness of a County charge to PDC of five dollars ($5.00) per ton

of waste received, either as to the amount of said charge, or the duration

during which it must be paid. Such charge violates the principals

announced in

County of Lake v. PCB,

120 Ill. App. 3

rd

89, (2

nd

Dist.

1983).

C)

A County Board has no authority to impose additional fees on an applicant

for siting approval as a condition of said approval.

County of Lake v.

PCB,

120 Ill. App. 3

rd

89, (2

nd

Dist. 1983).

D)

The charge of five dollars ($5.00) per ton charge represents an improper

attempt by the County Board to require a demonstration of financial

responsibility by PDC.

E)

Affirming the condition imposed by the County Board allows a county to

accomplish what the EPA cannot with respect to fees and financial

assurances.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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7

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

F)

There is no logical relationship, whatsoever, between operational plans to

limit spills, fires and other accidents and an additional fee to be paid by the

facility operator to the County. Said fee was not intended to defray the

cost of developing additional or better operational plans to minimize the

potential of fires spills and other operational accidents. Instead the $5 fee

was intended to be invested by the County to pay for some future care at

a time when the facility would no longer be operational.

12.

The multiplicity and complexity of issues in this appeal makes the grant of

partial Summary Judgment appropriate as a way of reducing the number of issues

promoting judicial economy and expediting resolution of the remainder of the issues

herein.

WHEREFORE,

Petitioner, Peoria Disposal Company, prays that this Board issue

a partial Summary Judgment as set forth in more detail hereinabove.

Respectfully submitted,

PEORIA DISPOSAL COMPANY

BY: ________________________________

GEORGE MUELLER,

One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

1

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

Petitioner,

v.

PEORIA COUNTY BOARD,

Respondent.

)

)

)

)

)

)

)

)

)

PCB 06-184

(Pollution Control Facility Siting Appeal)

MEMORANDUM OF LAW IN SUPPORT OF

(Criterion v)

NOW COMES

Petitioner, Peoria Disposal Company, (hereinafter “PDC”) by its

attorneys, Brian J. Meginnes and George Mueller, and as and for its Memorandum of

Law in support of its Motion for Partial Summary Judgment on siting criterion v, states

as follows:

INTRODUCTION

“Criterion v” (415 ILCS 5/39.2(a)(v)) requires that an applicant for local siting

approval for a new regional pollution control facility demonstrate that “the plan of

operations for the facility is designed to minimize the danger to the surrounding area

from fire, spills, or other operational accidents.” The Peoria County Board (the

“County”) purportedly approved PDC’s application for siting approval as to Criterion v,

and imposed certain special conditions, including the following:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

2

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

Attorneys at Law

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Effective upon PDC’s receipt of a permit from Illinois EPA to

operate the proposed expanded landfill, PDC shall pay

additional sums into a perpetual care fund, on at least a

quarterly basis equal to $5.00 per ton of the Expanded

Volume of Waste deposited in the PDC Landfill, but if the

volume of waste disposed of at the landfill facility in any

calendar year is less than 150,000 tons, PDC shall pay into

the fund a minimum of $750,000 for 15 years.

Said

payments shall be calculated based upon the same

information and figures used to calculate the Host Benefit

Fee pursuant to Section 9 of the Host Community

Agreement, and shall be subject to the same documentation

and verification requirement of the Host Benefit Fee. Said

Perpetual Care Fund shall be used exclusively for the care

and maintenance of the entire PDC site after the period of

post-closure care for the expanded landfill has been

terminated by IEPA.

(the “Fee Condition”; C13743 (C13743 and C13744 are attached hereto, and

incorporated herein by this reference, as Exhibit B)).

1

As a matter of law, the County lacks the power to impose a fee as a condition for

siting approval. Similarly, the County cannot mandate a demonstration of financial

responsibility as a condition for siting approval. Moreover, PDC’s evidence that

Criterion v is unconditionally satisfied was neither rebutted nor impeached with no

1

Although no final written decision was made by the Peoria County Board within one hundred

eighty (180) days from the date of the filing of PDC’s Application for Siting Approval, as stated in

the Motion for Summary Judgment on Criterion v, PDC acknowledges, for purposes of this

Motion and Memorandum of Law, that the County believes that it may have adopted certain

findings of fact with regard to Criterion v. In ¶10 of its Petition for Review before this Board,

PDC has alleged that the purported finding of the Peoria County Board that PDC has only

proven siting Criterion v if certain special conditions were imposed was against the manifest

weight of the evidence and was not supported by the evidence. This Motion and Memorandum

of Law assume,

arguendo

, that the County’s incorrect belief that it imposed conditions on

approval of Criterion v is accurate. Excerpts from the April 6, 2006 meeting of the Peoria

County Pollution Control Facility Siting Committee are attached hereto as Exhibit A, and are

incorporated herein by this reference.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

3

628 Columbus Street, Suite #204

Ottawa, Illinois 61350

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

evidence offered as to this criterion, other than PDC’s evidence. In such situation, the

County Board is not free to disregard the evidence. Industrial Fuels and Resources v.

PCB, 227 Ill. App. 3d 553, 592 N.E.2d 148 (1

st

Dist. 1991). Finally, there is no logical

relationship, whatsoever, between operational plans to limit spills, fires and other

accidents and an additional fee to be paid by the facility operator to the County.

For all the foregoing reasons, PDC respectfully requests that partial summary

judgment be entered in its favor as to the special condition imposed on Criterion v.

STANDARDS OF REVIEW AND LAW

Where the County’s decisions on PDC’s application for siting approval were

against the manifest weight of the evidence, the Board is required to reverse same:

In

Tate,

the standard of review in a regional pollution-control

facility site-location-suitability case was stated:

“

Waste Management of Illinois, Inc. v. Pollution Control

Board

(1987), 160 Ill.App.3d 434 [112 Ill.Dec. 178], 513

N.E.2d 592, decided that all of the statutory criteria must

be satisfied in order for approval and that the proper

standard of review for the County Board's decision is

whether the decision is against the manifest weight of the

evidence, with the manifest weight standard being

applied to each and every criterion. See also

City of

Rockford v. Pollution Control Board

(1984), 125 Ill.App.3d

384 [80 Ill.Dec. 650], 465 N.E.2d 996.

A decision is against the manifest weight of the evidence

if the opposite result is clearly evident, plain, or

indisputable from a review of the evidence. (

Harris v. Day

(1983), 115 Ill.App.3d 762 [71 Ill.Dec. 547], 451 N.E.2d

262.) * * *”

Tate

[

v. Illinois Pollution Control Bd.

]

,

188

Ill.App.3d [994] at 1022, 136 Ill.Dec. [401] at 420, 544

N.E.2d [1176] at 1195 [(4

Dist. 1989),

appeal denied

, 129

Ill.2d 572, 550 N.E.2d 565, 140 Ill.Dec. 680 (1990)]

.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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George Mueller

4

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

Attorneys at Law

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Fairview Area Citizens Taskforce v. Illinois Pollution Control Bd., 198 Ill.App.3d 541,

550, 555 N.E.2d 1178, 1184, 144 Ill.Dec. 659, 665 (3 Dist. 1990),

appeal denied

, 133

Ill.2d 554, 561 N.E.2d 689, 149 Ill.Dec. 319 (1990);

see also

CDT Landfill Corporation v.

City of Joliet, PCB No. 98-60, 1998 WL 112497, *4, 1998 Ill. ENV LEXIS 105, *9-10

(March 5, 1998).

Pursuant to the Illinois Administrative Code, in hearings before the Pollution

Control Board, “[i]f the record, including pleadings, depositions and admissions on file,

together with any affidavits, shows that there is no genuine issue of material fact, and

that the moving party is entitled to judgment as a matter of law, the Board will enter

summary judgment.” 35 Ill. Adm. Code §101.516(b).

The multiplicity and complexity of issues in this appeal makes the grant of partial

Summary Judgment appropriate as a way of reducing the number of issues promoting

judicial economy and expediting resolution of the remainder of the issues herein.

ARGUMENT

A.

A County Board has no authority to impose additional fees on an applicant

for siting approval as a condition of said approval.

A County Board has no authority to impose additional fees on an applicant for

siting approval as a condition of said approval:

Section 39.2 does not specifically grant the power to assess

fees against an applicant. The County Board argues that

such authority is implied by the authority to inspect. No

finding was made that section 39.2 grants the County Board

the authority to inspect in the instant case because B.F.I.

agreed to inspections and the county health department has

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

5

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

inspection authority already. Ill.Rev.Stat.1981, ch. 111 1/2,

par. 20c13.

Regardless of a power to inspect, the imposition of a fee is

not a reasonable and necessary condition in order to

accomplish the purposes of section 39.2. (Ill.Rev.Stat., 1982

Supp., ch. 111 1/2, par. 1039.2(e).) Any relationship these

have toward carrying out the purposes of this section are too

remote to come under the provision for conditions. If the

legislature intended such a power, it could have been more

specific. To extend section 39.2 to allow Condition V would

go beyond the confines of the statute.

Lake County v. Illinois Pollution Control Bd., 120 Ill.App.3d 89, 101 (2 Dist. 1983).

One of the most extreme illustrations of application of the foregoing rule is

Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc., 144 Ill.App.3d 334, 494

N.E.2d 180, 98 Ill.Dec. 253 (2 Dist. 1986),

appeal allowed

(Oct 02, 1986),

appeal

dismissed

(Nov 03, 1986). Therein, the Appellate Court found that a $10,000.00 filing

fee for a siting application imposed by a non-home rule unit was invalid: “section 39.2

does not give Boone County the authority to assess a filing fee.” Id. at 342, 184, 257.

After the Boone County case, the Legislature amended Section 39.2 to provide

expressly for the imposition of a reasonable filing fee by non-home rule units.

Imposition of the Fee Condition usurps the authority of the Illinois Environmental

Protection Agency (the “IEPA”). PDC in this case sought expansion of an existing,

permitted facility.

A condition of the existing permit is the establishment and

maintenance of a $5,000,000 fund to guarantee post-closure care for a period of 30

years. As above, the County found that PDC was not only in compliance with the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

6

Attorney at Law

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

IEPA’s requirement regarding the post-closure fund, but had actually funded a trust in

an amount higher than that required by the IEPA:

The testimony and documents submitted by Applicant [PDC]

demonstrate it is fully in compliance with its regulatory

requirements for financial assurance for closure and post-

closure care, and in fact has more funding in its trust than is

presently required by the IEPA * * *

(C13744).

2

Establishing the requirements for post closure care, its duration and the

amount needed to fund the same is the exclusive responsibility of the IEPA. The

imposition of a charge in any amount for the stated purpose of “perpetual care” is an

improper attempt to modify the post closure care period established by the IEPA and to

supplement the post closure care fund established by the IEPA.

It is clear that the County could not impose the Fee Condition on PDC under

Criterion v, under any circumstances.

B.

The Fee Condition is an improper attempt on the part of the County to

require a demonstration of financial responsibility by PDC.

Even if the County had the power to impose a fee as a special condition for siting

approval, the Fee Condition constitutes an impermissible attempt on the part of the

County to require a demonstration of financial responsibility on the part of PDC.

Local siting authorities are not permitted to inquire into an applicant’s financial

status, or to require financial responsibility on the part of an applicant:

Section 39.2 does not specifically grant the County Board

the authority to require financial responsibility. Nor does it

specifically prohibit the County Board from doing so.

2

See footnote 1,

supra

.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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George Mueller

7

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

However, other considerations indicate that the authority

cannot be implied.

Financial responsibility is not part of the six criteria to be

considered in granting approval. It is only indirectly related to

(v) but not sufficiently to find that it is implied. Ill.Rev.Stat.,

1982 Supp., ch. 111 1/2, par. 1039.2(a)(v).

The Agency is prohibited from requiring a bond or other

security as a condition for a permit. (Ill.Rev.Stat., 1982

Supp., ch. 111 1/2, par. 1039(a).) This provision indicates

the legislative intent that bonds or other financial security are

not allowed. The legislature has specifically provided an

exception for RCRA permits in section 39(d). (Ill.Rev.Stat.,

1982 Supp., ch. 111 1/2, par. 1039(d).) Absent a clear intent

to the contrary, no exception has been made for a county

under section 39.2.

Lake County v. Illinois Pollution Control Bd., 120 Ill.App.3d 89, 102 (2 Dist. 1983).

See

also

Residents Against a Polluted Environment and The Edmund B. Thornton

Foundation v. County of LaSalle and Landcomp Corporation, PCB 97-139, 1997 WL

355836, *14 (June 19, 1997); T.O.T.A.L. and Concerned Adjoining Owners v. City of

Salem, Roger Kinney, City Manager and Roger Freidricks, PCB 96-79 and PCB 96-82

(consolidated), 1996 WL 112144, *13 (March 7, 1996) (affirmed in Slip Op. No. 5-96-

0244 (5 Dist., June 2, 1997));

see also

Watts Trucking Service, Inc. V. City of Rock

Island, PCB 83-167, 1984 WL 37609, *11 (March 8, 1984) (“the Second District

Appellate Court has held that proof of the applicant's financial responsibility may not be

considered in granting approval pursuant to Section 39.2”).

Clearly, it was the intention of the County to use the Fee Condition as a

guarantee of financial responsibility on the part of PDC. The following discussion

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

8

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

occurred on April 6, 2006, at the meeting of the Peoria County Pollution Control Facility

Siting Committee, between County Board Member Michael Phelan and Assistant

State’s Attorney William (“Bill”) Atkins:

MR. PHELAN: Bill, what protection do we have in the event

of bankruptcy or sale of the company?

This bothers me, because I would like to remind everybody

we are partners in a cemetery that had a Perpetual Care

Fund as well.

MR. ATKINS: I believe that the way that we have set this up

-- and Mr. Brown would actually be able to give you a better

answer here because he's actually worked more with the

proposal for the Perpetual Care Fund. As I said, Mr. Brown

might be able to give you a better answer, but the way that

we are setting this up is that the money will not be under the

control of PDC.

In other words, the money will be there. So long as PDC is

operating, they will be putting the money into the fund. It's

not a situation where if they go bankrupt that fund

disappears with their bankruptcy.

If you have a situation where whatever entity is holding onto

the money goes bankrupt or is defunct and they have lost

the money, such as the situation they had in Pekin with their

landfill, you know, that is potentially a problem.

AUDIENCE MEMBER: We can't hear.

MR. ATKINS: So we can't -- I don't think that we can provide

a situation where we are assured that there will be an entity

able to hold the money unless we have the state or the

county or some governmental entity that we are relatively

sure will be here 50 years or 100 years from now. But with

any private entity you always have the situation that they

could disappear, regardless of who that entity is.

(Tr. pg. 42, line 12 – pg. 43, line 21; C13421, Exhibit A hereto).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

9

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

The IEPA imposes its own requirements on landfill operators, including post-

closure funding (as described in Section (A), above) and maintenance of insurance,

preempting the field as to the financial responsibility of an applicant.

See

Watts

Trucking Service, Inc.,

supra

. A local siting authority is not permitted to require

assurances of financial responsibility from an applicant as a condition of approval of an

application. Clearly, the Fee Condition is an impermissible attempt on the part of the

County to require an assurance of financial responsibility from PDC as a condition of

approval of the application for siting.

C.

The County lacked the power to impose any special conditions

whatsoever as to Criterion v, because there was no evidence presented

that PDC did not satisfy Criterion v without imposition of any special

conditions.

Even if (a) the County had the power to impose a fee as a special condition for

siting approval, and (b) the Fee Condition did not constitute an impermissible

demonstration of financial responsibility, the imposition of the Fee Condition would still

be improper, as PDC satisfied the burden of proving that Criterion v was satisfied

without imposition of any special conditions. PDC proved that the plan of operation for

the facility is designed to minimize the danger to the surrounding area from fire, spills or

other operational accidents. Summarizing the presentation of PDC’s expert witnesses,

the County found, in pertinent part, as follows:

Applicant presented expert reports and testimony concerning

its plan of operations and its fire, spill and operational

accident plans;

*

*

*

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

10

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

The testimony and documents submitted by Applicant [PDC]

demonstrate it is fully in compliance with its regulatory

requirements for financial assurance for closure and post-

closure care, and in fact has more funding in its trust than is

presently required by the IEPA * * *

(C13744).

3

No evidence was offered that PDC did not satisfy Criterion v without

imposition of special conditions. In fact, the County found that “[t]here was no evidence

presented which demonstrated Applicant’s [PDC’s] plans for fires, spills or accidents

were insufficient....” (C13744; emphasis added).

4

Therefore, the County lacked the

power to impose any special conditions whatsoever as to Criterion v.

The County is required to accept uncontradicted and unrebutted expert

testimony. For example, in the case of Industrial Fuels & Resources/Illinois, Inc. v.

Illinois Pollution Control Bd., the Illinois Appellate Court overturned the decision of the

Pollution Control Board upholding the denial of siting (on siting criterion ii) by a city, on

the basis that the conclusions of the applicant’s expert witnesses were never

contradicted or rebutted. 227 Ill.App.3d 533, 546-47, 592 N.E.2d 148, 157, 169 Ill.Dec.

661, 670 (1 Dist. 1992). The Court held, in pertinent part, as follows:

While we do not wish to denigrate legitimate safety concerns

of Harvey [the city] and its residents, we find virtually nothing

in the record to substantiate the fear of significant risk to the

populace. On the contrary, the undisputed fact is that all

governmental minimum standards have been met and

exceeded and that the facility will employ state-of-the art

technology to ensure safe levels of emissions in the ordinary

operation of the plant. Nothing indicates that Industrial's [the

applicant’s] controls and procedures, safety features, training

4

3

See

See footnote

footnote 1,

1,

suprasupra

.

.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

11

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

of personnel, or security systems are substandard or create

a significant safety hazard.

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

affirmance of Harvey's finding on that criterion is against the

manifest weight of the evidence.

Id. at 547, 157, 670.

Similarly, in CDT Landfill Corporation, this Board found that a city’s decision

contrary to an applicant’s unrebutted expert testimony on siting criterion ii was against

the manifest weight of the evidence:

In the instant case, the evidence before the City was clear

and unrebutted. CDT presented testimony from four qualified

expert witnesses. Expert testimony was given that the

proposed expansion meets the requirements of criterion (ii).

Expert testimony was provided that the proposed expansion

complies with the requirements of the Act and associated

regulations. In its brief, the City identified a number of

alleged flaws with the evidence provided by CDT, but offered

no expert opinion that any particular design feature or

operating procedure might increase the risk of harm to the

public.

The only testimony on record that might possibly pertain to

criterion (ii) are the public comments concerning odor. As

previously discussed, public comments are part of the record

to be considered by the local governing body. The public

comments concerning odor, however, state merely that odor

is present in the area. No analysis of the odor source is

presented. CDT presented testimony regarding the system

set up to address odor complaints. C3372- C3381. In

addition, the area in question is extremely industrial, and

contains, inter alia, an animal rendering facility and a grease

recycling

company.

Unrebutted

expert

testimony

characterizes the area as one containing many companies

performing activities capable of generating odor. CDT notes

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

12

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

it has never received an administrative citation from state or

local officials relating to odor from the existing facility. Pet.

Br. at 21.

A review of the evidence for this criterion reveals that a

result opposite to that of the City's is clearly evident. CDT did

show that the proposed expansion is designed, located, and

proposed to be operated so that the public health, safety and

welfare will be protected. The public comments regarding

odor and the alleged design flaws regarding CDT's proposed

facility are not sufficient to warrant the City's decision.

Therefore, the Board finds that the City's decision on

criterion two is against the manifest weight of the evidence.

CDT Landfill Corporation, 1998 WL 112497, *12-13.

As above, PDC’s expert evidence regarding the plan of operations for the facility

was uncontradicted and unrebutted. The County affirmatively found that PDC “[t]here

was no evidence presented which demonstrated Applicant’s [PDC’s] plans for fires,

spills or accidents were insufficient....” (C13744).

5

Therefore, the County lacked the

ability to require special conditions above and beyond the requirements of Criterion v.

D.

The Fee Condition bears no relation to Criterion v.

Even if (a) the County had the power to impose a fee as a special condition for

siting approval, and (b) the Fee Condition did not constitute an impermissible

demonstration of financial responsibility, and (c) there had been evidence presented

that was contrary to PDC’s evidence that Criterion v was satisfied without imposition of

any special conditions, the Fee Condition would still be improper because it bears no

relation whatsoever to Criterion v.

5

See footnote 1,

supra

.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

13

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Criterion v merely requires that the plan of operations for a proposed facility be

designed so as to minimize the danger to the surrounding area from fire, spills or other

operational accidents. It has

nothing to do with post-closure care of such facility. The

“findings” of the County on which the Fee Condition is based are as follows:

The testimony and documents submitted both in support of

and against the application suggest that long term care and

maintenance of the facility is necessary to fully and

adequately protect the public health, safety and welfare;

*

*

*

Applicant’s plans do not adequately provide for the perpetual

care of the facility after the termination of the post-closure

care period * * *

(C13744).

6

“Protection” of “the public health, safety and welfare” and “perpetual care of

the facility” are not the point of Criterion v.

In the Industrial Fuels & Resources/Illinois, Inc. case, one Illinois Appellate Court

summarized the purpose and requirements of Criterion v as follows:

The issue here, as in the second criterion, is one of safety,

with the emphasis on planning to avoid or minimize the

danger from catastrophic accidents. As in any industrial

setting, there is a potential for harm, both to the environment

and to the residents of the area. We doubt that the legislative

intent behind Criterion 5 was to hold applicants to so high a

standard as to guarantee an accident-proof facility, however.

See

Wabash and Lawrence Counties Taxpayers and Water

Drinkers Association v. Pollution Control Board

(1990), 198

Ill.App.3d 388, 394, 144 Ill.Dec. 562, 567, 555 N.E.2d 1081,

1086 (“The key, here, however is

minimize.

There is no

requirement that the applicant guarantee no accidents will

occur, for it is virtually impossible to eliminate all problems.”)

6

See footnote 1,

supra

.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

14

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

227 Ill.App.3d at 547, 592 N.E.2d at 157-58, 169 Ill.Dec. at 670-71. In the case of

County of Kankakee,

et al.

v. City of Kankakee County, Illinois,

et al.

, an objector

argued that the plan of operations proposed by the applicant was insufficient because

the applicant had not discussed same with the relevant fire department. PCB 03-31,

PCB 03-33, PCB 03-35, 2003 WL 137451, *27 (January 9, 2003). The Board rejected

the objector’s argument, stating as follows:

The plain language of the criterion simply requires a plan of

operations. Town & Country [the applicant] has presented

that plan. Furthermore, Town & Country would speak to the

fire department upon approval of the application as required

by condition in the siting approval. R. at 3279. The County

[the objector] has presented no evidence that Town &

Country's design and procedures are inadequate; therefore,

the Board finds that that the City's determination that Town &

Country satisfied criterion (v) of the Act is not against the

manifest weight of the evidence.

Id. Clearly, general concerns about the public health, safety and welfare and post-

closure care are not properly part of the analysis of Criterion v.

Moreover, the actual calculation of the Fee Condition was totally arbitrary and not

based on the Record. The following discussion occurred on April 6, 2006, at the

meeting of the Peoria County Pollution Control Facility Siting Committee, between

County Board Member Robert Baietto and Board Member Tim Riggenbach, who

proposed the Fee Condition, when Mr. Baietto requested clarification as to the means

Mr. Riggenbach used in calculating the $5.00 per ton ($750,000 minimum per year)

figure:

MR. BAIETTO: What did you use, Tim?

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

15

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

MR. RIGGENBACH: As I was going over these numbers, it

seemed to me that this whole thing is somewhat, obviously,

an area of great unknown, an area that, God forbid, we ever

need to get into this we don't want to have a situation where

we are going to be shortchanged.

I guess I am just opening this up for negotiations so that we

can make sure that the appropriate funds are available. That

the perpetual care, I think, is the key to this. Even more so

than that, after the 30 years are up, that we are going to be

able to maintain the monitoring, that we are going to be able

to catch anything before it would get to the point that it would

be the disaster that we are all -- obviously, we have been

told about in the past.

So I think this is more -- can you have too much insurance? I

guess that is always the question.

(Tr. pg. 36, line 15 – pg. 37, line 10; C13419, Exhibit A hereto).

The Fee Condition was not intended to defray the cost of developing additional or

better operational plans to minimize the potential of fires spills and other operational

accidents. Instead the $5.00 per ton ($750,000 minimum per year) fee was intended to

be invested by the County to pay for some future care at a time when the facility would

no longer be operational. The Fee Condition does not, therefore, properly relate to

Criterion v, and could not be imposed as a condition on the approval thereof.

CONCLUSION

The County had no power to impose a fee as a special condition for siting

approval.

The Fee Condition was an impermissible demonstration of financial

responsibility. There was no evidence presented that was contrary to PDC’s evidence

that Criterion v was satisfied without imposition of any special conditions. The Fee

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

George Mueller

16

628 Columbus Street, Suite #204

(815) 431-1500 - Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Condition bears no relation to Criterion v. For all these reasons, the County’s decision

to impose the Fee Condition on approval of Criterion v of PDC’s application for siting

approval was against the manifest weight of the evidence before the County.

WHEREFORE,

Petitioner, Peoria Disposal Company, prays that this Board issue

a partial Summary Judgment as set forth hereinabove.

Respectfully submitted,

PEORIA DISPOSAL COMPANY

BY: ___________________________

GEORGE MUELLER,

One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

APPLICATION FOR LOCAL SITING APPROVAL OF A

POLLUTION CONTROL FACILITY

PROPOSED FINDINGS OF FACT

DATE

:

April 6, 2006

TIME

:

5:00 P.M. TO 7:45 P.M.

LOCATION

:

Itoo Society Hall

4909 West Farmington Road

Peoria, Illinois

PEORIA COUNTY BOARD

David T. Williams, Sr., Chairman

Pat Hidden

Merle Widmer

G. Allen Mayer

c

13410

Jeff Joyce

Lynn Scott-Pearson

Bob Baietto

Tim Riggenbach

Phil Salzer

Mike Phelan

Brian Elsasser

Junior Wat kins

Tom

O'Neill

Carol Trumpe

Jim Thomas

Sharon Kennedy

Bill Prather

Bill Atkins, Assistant State's Attorney

JoAnn Thomas, County Clerk

COUNTY STAFF:

Chris Burger

Karen Raithel

Dave Brown

Patrick Urich

Matt Wahl

,

,

,T

\\;I

. !?~~.;(,

Dave Ryan

$ ,::: :;,+::- :::i! .-

Li

W

Don Cavi

ALLIANCE REPORTING SERVICE

309-691-0032

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

---

1 are essentially moving to accept the findings of

2

fact on the approval with conditions and to amend

3 the facts contained within the proposed approval

4 with special conditions.

5

MR. RIGGENBACH: Correct. Thank you.

6

CHAIRMAN WILLIAMS: Allen?

7

MR. MAYER: I had one suggestion for a

8

change in the findings of fact, which is just on

9

that same page that you were on here with Tim, the

10 last finding, due to the types of wastes, to

s~ke

11 that and replace it with

--

if you look on the pink

12 sheet, the third one, just the facility is located

13 close to and could present a danger for residents.

14

MS. KENNEDY: 1 don't follow you here.

15

MR. MAYER: Okay. In the yellow sheets,

16

special conditions, look right above that. There

17 is finding of facts established on that.

18

MS. KENNEDY: Okay.

19

MR. MAYER: The last one, due to the types

20 of waste, there is little risk, to strike that and

21 to replace it with --it's slightly different but

22 the same sentiment, different emphasis

--

the third

23 one on the pink sheet, the facility is located

24 close to residential houses and a fire, spill or

30

1

MR. WATKTNS: Aye.

2

COUNTY CLERK THOMAS:

Widmer?

3

MR. WIDMER: Aye.

4

COUNTY CLERK THOMAS: Williams?

5

CHAIRMAN WILLIAMS: Yes.

6

COUNTY CLERK THOMAS: The vote is

17 ayes.

7

CHAIRMAN WILLIAMS: Thank you.

8

Criterion 5.

9

COUNTY CLERK THOMAS: Criterion

5.

The

10 plan of operation for the facility is designed to

11 minimize the danger to the surrounding areas from

12

fire, spills and other operation accidents.

13

CHAIRMAN WILLIAMS: Any discussion?

14

MR. RIGGENBACH: I would like

--

tell me

15

the correct way to do this.

16

1 would like to amend one of the special

17 conditions.

18

CHAIRMAN WILLIAMS: Which one?

19

MR. RIGGENBACH: Number three.

20

And I would like to change the $1.50 per ton

21

surcharge to

a $5 surcharge, and have the minimum

22 into the fund be raised from 225,000 to 750,000.

23

MR. ATKINS: I think in order for your

24

motion to be proper according to our procedure, you

I

Then the following special conditions are

2 added:

Leachate will be automatically removed from

3 all

leachate manholes to maintain a minimal risk of

4

leachate on the manhole liner. This is intended to

5 minimize risk of

leachate leakage through liner

6 components.

7

Two, the south storm water detention basin

8 shall be tested on a schedule identical to the

9

existing permit requirements for groundwater

10 monitoring wells and for the following indicator

11 constituents: Total dissolved solids, chloride,

12 calcium, bromide, sulfate and sodium. Although

13

stormwater typically has less string water quality

14

parameters, the records shall be kept and analyzed

15 to verify that trends do not increase to levels of

16

concern that would indicate leachate has been

17 accidentally released to stormwater as long as the

18 active landfill operations occur.

PDC

shall notify

19 the County of any statistically significant upward

20

trend in stormwater concentration.

21

Number three, effective upon

PDC's receipt

22 ofa permit from Illinois EPA to operate the

23 proposed expanded landfill,

PDC shall pay

24 additional sums into a Perpetual Care Fund on at

32

I other operations accidents could present a danger

2 for residents.

3

And just in speaking in favor of that, I

4 think with the emergency conditions that we did

5 with the mock disaster drill and all of that, that

6 that is consistent with all of that.

7

CHAIRMAN WILLIAMS: Good point.

8

Any other discussion on it?

9

So the motion is to pass criterion 5 as

10 amended.

11

COUNTY CLERK THOMAS: Do you want me to

12 read the special conditions?

13

CHAIRMAN WILLIAMS: Yes.

14

COUNTY CLERK THOMAS: Criterion

5

is

15 amended by deleting the last statement under the

16 criterion, due to the types of wastes proposed to

17 be handled and disposed of at the facility, there

18 is little risk of fires, spills or accidents

19 impacting surrounding properties other than those

20 inherent with more typical commercial or industrial

21 facilities. That is replaced with the statement,

22 the facility is located close to residential houses

23 and a fire, spill or other operations accident

24 could present

a danger for residents.

Pages 30 to 33

ALLIANCE REPORTING SERVICE 309-691-0032

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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34

1 least a quarterly basis equal to $5 per ton ofthe

2 expanded volume of waste deposited in the PDC

3

Landfill, but if the volume of waste disposed of at

4 the landfill facility in any calendar year is less

5

than 150,000 tons,

PDC shall pay into the fund a

6 minimum of $750,000 for

15 years. Said payments

7

shall be calculated based upon the same information

8 and figures used to calculate the Host Benefit Fee

9

pursuant to Section 9

ofthe Host Community

10 Agreement, and shall be subject to the same

11 documentation and verification requirement of the

12 Host Benefit Fee. Said Perpetual Care Fund shall

13 be used exclusively for the care and maintenance of

14 the entire PDC site after the period of

15 post-closure care for the expanded landfill has

16 been terminated by the IEPA.

17

CHAIRMAN WILLIAMS: Any discussion?

18

MI. Baietto?

19

MR. BAIETTO: Staff, in relationship to

20 your recommendation of a $1.50 and $225,000, what

21

was that based on in relationship to what facts did

22

you have in making that assumption that if

23 something were to happen that that would be enough

24 money to cover it?

35

1

MR. URICH: Well, before I answer that

2 question, let me point out one item in the special

3 conditions.

4

I think as the Clerk was reading it, the

5 fourth line in the second special condition, the

6 last word should be stringent. Just to reflect

7

that. You read it correctly. It was incorrectly

8 listed there. Should be stringent. That's

9

conect.

10

Now, as to how we came to our determination

11

of a $1 50, really I think that we were looking at

12 bow we could generate what we believe to be

13 sufficient resources in that fund to protect that

14 site into perpetuity, looking at the investment

15 growth, looking at how that would grow over time.

16

As I think we said in our staff report, we

17 took some conservative projections with that to

try

18 to estimate those out, and some conservative

19

projections with regards to the inflation rate, we

20

used four and a half percent inflation. Looking at

21 that on average I think the last 90 years inflation

22 rate has

been somewhere in the area of 4.3 percent.

23

So that has been what we based our criteria on in

24 looking at that in response, really, to

try

to come

3t

1

up with a number that we felt was sufficient.

2

CHAIRMAN WILLIAMS: Did that answer your

3 question, Bob?

4

MR. BAIETTO: I take from your explanation

5

you feel a

$1.50 and 225 is adequate?

6

MR.

URICH: Well, I would

--

that I would

7

say that is Staffs

belief. I mean if the Board

8 has another, you how, feeling on that, I think

9 that that is entirely appropriate as well. I think

I0 that this is an issue, I think, that sentiment has

11 been raised after our report came out about what is

12 the cost and how can you calculate the cost of what

I3 might happen should the aquifer be impacted, and I

14 think that is a legitimate concern.

15

MR. BAIETTO: What did you use, Tim?

16

MR. RIGGENBACH: As I was going over these

17

numbers, it seemed to me that this whole thing is

18 somewhat, obviously, an area of great unknown, an

19 area that, God forbid, we ever need to get into

20 this we don't want to have a situation where we are

21 going to be shortchanged.

22

1 guess I am just opening this up for

23 negotiations so that we can make sure that the

24 appropriate funds are available. That the

37

I

perpetual care, I think, is the key to this. Even

2 more so than that, after the 30 years are up, that

3 we are going to be able to maintain the monitoring,

4 that we are going to be able to catch anything

5 before it would get to the point that it would be

6

the disaster that we are all --obviously, we have

7

been told about in the past.

8

So I think this is more

--

can you have too

9 much insurance? I guess that is always the

I0 question.

11

CHAIRMAN WILLIAMS: Brian?

12

MR. ELSASSER: I just had a comment

13 regarding the $5.00 a ton.

14

I am not advocating it be any higher or

15

anything like that, but ifthe aquifer would become

16 contaminated, you couldn't put a quantitative cost

17 amount on it. So I amnot saying we should raise

18

it to $10 a ton to make sure that you could replace

19 the aquifer because you can't. It's the most

20 valuable natural resource we have there, and you

21 can't put a dollar amount on it. We would be into

22 the super fund area, you how, from the federal

23 government if that ever happened.

24

So, you how, I just want to make sure that

Pages 34 to 37

ALLIANCE REPORTING SERVICE 309-691-0032

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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1

$80 roughly, I think

is the number that's been laid

2

out there

--

you know, I don't have a calculator to

3 run those numbers pretty quick, but that's a

4 sizable revenue stream. And you would be looking

5 at, you know,

$5.00 per ton, that's, you know,

6

about a little over five percent I think of the

7

revenue stream in terms of over the top of that.

8

CHAIRMAN WILLIAMS: Allen, did you have a

9 question?

10

MR. MAYER: I did. It's something of a

11 procedural one for Bill, because my concern with

12

the, with number three as being proposed by Tim is

13

it has a minimum level of waste per year. It's

14 sort of structured

that way if it drops below this.

15

When we get to Criteria 1, as people who

16

have attended the meetings know, I have taken a

17 pretty strong interest in that, and if we have

18 conditions on that that might reduce the amount

19 below the volume accepted below this, this wouldn't

20 make sense. Would we be able to go hack and amend

21 this so that we don't have conflicting special

22 conditions?

23

MR. ATKINS:

You certainly will have the

24

ability to amend any of these conditions at this

38

I we don't feel like that everything is just going to

2 be okay for all of the future, you know, even if we

3 raise this to $5.00 a ton.

4

CHAIRMAN WILLIAMS: Michael, did you have

5 a question?

6

MR. PHELAN:

1 am agreeable to the change,

7

but I do have a question for you, Patrick.

8

I really don't know how we

can

base this fee

9

without knowing what profits have been generated by

10

the Applicant in the past and what type of profits

I I they expect to generate in the future.

12

Do you have any idea what that is going to

13 be?

14

MR. URICH: The short answer would be no.

15

The more longer answer would be that, you

16 know, based on the numbers that I have read and I

17 think have been reported in the records so far,

18 that looking at the revenue stream of the company,

19 the annual revenue's somewhere in the

area

of 55 to

20 58 million dollars annually. At least in the

21 numbers that were reported in Waste Age Magazine

22 most recently. So from that perspective, in terms

23 of if you assume that this landfill has a waste

24 stream of up to 150,000 tons and you

are looking at

1

consistent earning for year after year? I don't

2 understand that at all.

3

MR. URICH: Well, we based it on the

4 Applicant's application, and in terms of

--

and

5 their proposal of the

13 cent per ton Perpetual

6

Care Fund that they had proposed to establish,

7

which was proposed based on 150,000 tons of waste

8 coming into this landfill expansion.

9

So as we were plugging numbers into the

10 spread sheet and looking how that might shake out,

11 that's how we ultimately came to the

$1.50 figure.

12

I just did the quick calculations. This

13

would be, if it's

--

if the tipping fee is $80,

14

this is about

a 6.25 percent fee over and above on

15 top of that to protect the site into perpetuity.

16

So it's six and a quarter percent. And then there

17

would be the $1 for the host fee, should the

18 expansion go forward.

19

But

I agree with you, I don't know how to

20

project what might happen into the future in a way

21 that would be like that.

22

We just simply used the same calculation of

23

the Applicant in terms of coming to the waste

24

stream numbers and based the revenue into the

4C

I

meeting before you leave, and you will also have

2 the ability to revisit this when you sit as the

3 County Board.

4

As you are well aware, tonight you are

5

sitting as the Site Hearing Committee. So what you

6 do tonight is not final. And so you will have a

7

second chance as you look into the special

8

conditions and you see that they actually are

9 contradictory and you shouldn't have the two, you

10 could decide which one to change at the County

11

Board meeting, which

I believe is scheduled right

12 now for May 3rd.

13

MR.

MAYER: Thank you.

14

CHAIRMAN WILLIAMS: Merle?

15

MR. WIDMER: I'll make a statement first.

16

I owned a business for 28 years. I was

17

never able to predict my profit for the coming

18 year.

19

The question, Mr. Urich, is how in the world

20

would you ask PDC to project what their profit is

21 when there are so many variables out there?

22 Everything from wages to new equipment, to disaster

23

of some type. Or how could you possibly know what

24 their earnings are going to be and base this on a

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42

1

Perpetual Care Fund, based upon the projected

2

amount of waste that might be coming in.

3

That's also the reason why we came up with

4 the second special condition about the minimum

5

floor, because there were concems raised by the

6

opponents that should expansion of C-l not occur,

7 that you should have a minimum level of

8 contribution into that Perpetual Care Fund. And

9

that's why we proposed that as a second special

10 condition.

11

CHAIRMAN WILLIAMS: Michael?

12

MR. PHELAN: Bill, what protection do we

13 have in the event of bankruptcy or sale of the

14 company?

15

This bothers me, because I would like to

16 remind everybody we are pamers in a cemetery that

17 had a Perpetual Care Fund as well.

18

MR. ATKINS: I believe that the way that

19 we have set this up

--

and Mr. Brown would actually

20 be able to give you a better answer here because

21 he's actually worked more with the proposal for the

22 Perpetual Care Fund. As I said, Mr. Brown might be

23 able to give you a better answer, but the way that

24 we are setting this up is that the money will not

43

1 be under the control of PDC.

2

In other words, the money will be there. So

3 long as PDC is operating, they will he putting the

4 money into the fund. It's not a situation where if

5

they go

bankrupt that fund disappears with their

6

bankruptcy.

7

If you have a situation where whatever

8

entity is holding onto the money goes

banhupt or

9 is defunct and they have lost the money, such as

10 the situation they had in Pekin with their

11 landfill, you know, that is potentially a problem.

12

AUDIENCE MEMBER: We can't hear.

13

MR. ATKINS: So we can't

--

I don't think

14 that we can provide a situation where we are

15 assured that there will he an entity able to hold

16 the money unless we have the state or the county or

17 some governmental entity that we are relatively

18 sure will be here 50 years or 100 years from now.

19 But with any private entity you always have the

20 situation that they could disappear, regardless of

21 who that entity is.

22

MR. PHELAN: What about the sale of the

23 company?

24

MR.

ATKINS: It should not affect this for

44

1

the same reason the bankruptcy of the company

2 should not affect it.

3

CHAIRMAN WILLIAMS: Junior?

4

MR.

WATKINS: Out of curiosity, has a

5

landfill company ever went bankrupt?

6

MR. URICH: I think as it was reported in

7

the paper this week that IEPA stated that there

8 were several landfills that had gone into

9

bankruptcy. And

I think, you know, I'll pass the

10

mic over to Dave to talk about what might be going

11 on in

Tazewell.

12

MR. BROWN: Well, that always is a

13

possibility with

--I don't know that it's unique

14

for landfill operators or anybody in the

15

environmental control field. So --but in general,

16 the Host Agreement states that

--

maybe this

17 addresses kind ofboth the concerns. It states,

18 one, that it's binding on PDC's successors and

19 assignees. So

ifthey ever sell, okay, this, these

20 obligations that are imposed by the Host Agreement

21 would travel with the assets. Okay.

22

The other thing is the Host Agreement says

23 it runs with the land. Which means it's attached

24 to the real estate. So if they sell the real

1

1

estate hut PDC continues to exist as a corporate

2

entity, the obligations would also go with the

3

operations.

4

That addresses, I think, some of the

5

concems as to how you get the funding in there.

6

Okay. Because the funding is

--

as it's set

up

7

right now on the special criteria or special

8

condition, is to be spread out during the period of

9

operation of the proposed expansion. Okay.

10

So what happens after that period of time,

11 once the money is in that escrow account, where PDC

12 goes and what happens is of less of a concern. At

13 least it would be to me, because once the money is

14

in the account, you know, in my mind the question

15 is, you know, what happens if they walk away from

16 the site while it's still operating?

17

CHAIRMAN WILLIAMS: Okay.

18

MR. BROWN: That's where Illinois EPA

19 oversight comes in. And ifwe have got the

20 Perpetual Care Fund, we have got some oversight

as

21 well.

22

CHAIRMAN WILLIAMS: Does that answer your

23 question?

24

MR.

WATKINS: Yes.

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48

only keep people off of it but to do additional

things.

And they are laid out in the appendix to

that Perpetual Care Fund Escrow Agreement.

So

I think I

--

I hope that 1 answered your

question.

While they are in the post-closure care

period, they are still subject to IEPA regulations

and requirements.

After that is over

--

and it's

not necessarily in 30 years. It can go on beyond

that if

lEPA sees anything at the site that gives

them concern, such as continued

leachate generation

in any of the waste cells. If there is some sort

of groundwater contamination that is going on,

IEPA

can extend that 30 year post-closure care period

out longer than 30 years.

But once the post-closure care period is

terminated, they

--

I mean, they would still be the

property owners.

CHAIRMAN WILLIAMS: Tim?

MR. RIGGENBACH: I think this discussion

highlights exactly my

concerns and why I feel this

is such a critical element of the conditions here,

because Mr. Phelan made reference to the cemetery

1

CHAIRMAN WILLIAMS: Mr. Thomas?

2

MR. THOMAS: In the listing here it talks

3 about the facility. The expansion is only

pan of

4 it.

5

Does this facility include the barrel

6 trench?

7

MR. BROWN: As these criteria are laid out

8 here, the way I believe Staff intended them to be,

9 is when it says "facility," it's the proposed

10 facility.

11

MR. THOMAS: Just

--

12

MR. BROWN: That's right. So you know,

13 there would not be any findings of fact as to

14 operational accidents, fires or spills at any of

15

the inactive portions of the larger site.

16

But now that being said, the proposed

17 amendment to the Host Agreement expanded the

18 coverage

ofthe Host Agreement to the entire PDC

19 property out there, not just the proposed facility.

20

MR. THOMAS: So the Perpetual Care Fund

21 covers the barrel trench also?

22

MR. BROWN: That's correct. That's the

23 intent.

24

CHAIRMAN WILLIAMS: Mr. Baietto?

47

1

MR. BAIETTO: I know you probably have not

2

had time to look at the

Pevetual Care Fund and the

3 operation of who is going to take over when PDC and

4 EPA has released them in their 30 year obligation.

5 They own the property.

l am looking at the

6 municipal dump which we own and we are the

7

custodians. Hopefully by our third meeting you

8 will have some idea how this is all going to come

9 about. They own the property. Are they void of

10 any responsibility

ofwhat is there? Are we going

11 to take over as the custodians? And, you know, if

12 you have got the information, fine, tonight, but if

13 you don't, that needs to be cleared up.

14

MR. BROWN: That is a good question.

15

The regulatory obligations that are imposed

16 upon PDC would continue on until the Illinois EPA

17 terminates their post-closure care period.

18

At that point in time their technical

19 regulatory obligations would cease, hut they would

20 still continue to own the property.

21

They would

--

as long as they own the

22 property, they have got some obligations to

23 maintain it. And under the Perpetual Care Fund,

24 that squarely places that obligation on them to not

1

2

3

4

5

6

7

8

9

10

I I

12

13

14

15

16

17

18

19

20

2

1

22

23

24

1 and the situation in Tazewell County. While those

2

are distinct, and perhaps you could argue

3 unrelated, that still is something that has

4 happened.

5

So I would direct Staff as this is put into

6 place

--

and I almost said fortunately I am not an

7

attorney, excuse me, Allen --I amnot an attorney,

8 so I would leave that to those that are to put that

9 in an ironclad format that this fund would be

10 secure for the citizens of Peoria County in

I I perpetuity, because that is obviously the key for a

12 lot of what we are going to be talking about later,

13

I believe.

14

And in reference to Mr.

Elsasser's concern

15 about the aquifer,

I think that also gives credence

16 to the fact, that the critical nature of this fund

17 itself, because that would allow us to make sure

18 that the maintenance and that the care is there

19 beyond the 30 years and beyond 50 years. And we

20 all have heard great things about the way PDC has

21 operated this in the past and the character of the

22 employees and the ownership, and if we

could

23 guarantee them being there in perpetuity, I think

24 you would all --it would be different. But we

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1

don't know what will happen in 50 years,

I00 years.

2

So that's why I think this is a critical component

3 of what we are discussing tonight.

4

CHAIRMAN WILLIAMS: Brian?

5

MR. ELSASSER: I wanted to ask Mr. Atkins

6 a question regarding when could or should we

7 consider, if we have a question regarding the

8 restrictions on transfer, which one of these

9 criteria? Or should I tell you why

1

am concerned

10 about it?

11

MR. ATKINS: Are you talking about

12 transfer of the ownership of PDC or transfer of

13

this facility or transfer of

--

14

MR. ELSASSER: Regarding page number 82

15 where it talks about restriction on transfer.

16

1'11 tell you why I am concerned.

17

The second sentence there

--

I mean the

18 first sentence basically says that the County Board

19

would vote, you know, if they are going to sell it

20 or change control and have a transfer of

21

controlling interest. The second sentence

--

I

22 mean, you and Allen Mayer I am sure would do much

23

better than myself

--

sounds like we have to have

24

all different kinds of reasons or have to come up

Board feel is appropriate. I would encourage you

to do so.

That second sentence that is in there,

I

inserted that. And the reason for that in

--

the

reason

1 inserted that in there was it comes pretty

much word-for-word out of the statute on what the

County Board can consider as kind of the tenth

criteria, the operating history.

And my thought on that was that it doesn't

restnct the County Board, but my thought on that

sentence was that the reason

I thought it was

important to have it in there was if

1 am the

County Board,

I don't want somebody taking over

that has a bad operating history. Particularly

when we have, you know, heard so much testimony

about

PDC's good operating history and compliance

record.

So the statute 39.2 has the

9 criteria, and

then after that it says, And the County Board may

consider the past operating record and history of

compliance.

So that is why

I included that sentence in

there.

If we are making that call today, I want to

1 with something to determine, you know, why they

2 can't sell it.

3

And I am not comfortable with that second

4

sentence, because if this would pass, I would --I

5 hope PDC would be out there running it and not

6

Exxon Mobile. And that is my concern.

7

That second sentence I am not comfortable

8

with at all on page 82 of the Staff report.

9

MR. ATKINS: Are you saying that you want

10 to add that as a special condition, the limitation

11 on transfer as a special condition for this

12 particular criterion?

13

MR. ELSASSER: I

am

asking which criterion

14 should we consider that under?

15

MR.

ATKINS: Well, I think I

am

going to

16

have to defer to either Patrick or Dave Brown

17 regarding that. They have much greater familiarity

18 with these documents than

I do.

19

MR. BROWN:

I'll try to answer.

20

The direct question

--

and I am going to try

21 to also answer your comments on sentence number

22 two. I think you can address any of the provisions

23 or proposed amendments to the Host Agreement. You

24 can discuss them under any of the criteria you as a

1 be able to make that call again later if they want

2

to transfer an interest in the property.

3

CHAIRMAN WILLIAMS: Does that answer your

4 question?

5

MR. ELSASSER:

Yes,

for now.

6

1 am going to read it again and we could

7 always revisit on May 3rd.

8

CHAIRMAN

WLLLIAMS: Allen?

9

MR. MAYER: Couple of quick points.

10

One, since Brian raised that, I have

11 always

--

in the first sentence it's a

12 reasonableness test. And I would feel a lot more

13 comfortable if it said arbitrary and capricious. I

14 mean, work on the language, but that standard.

1

15 think that would match up with --that's subject to

16 negotiation. It's a nitpick.

17

The other two quick points I wanted to make

18 is, one, if

Pabick says, you know, if the 6.25

19 percent is roughly equivalent to the state sales

20 tax,

so

it seems, you know, not unreasonable an

21 amount.

22

And the second thing, since we talked about

23

the cemetery that I am fairly intimately familiar

24 with,

part of the big problem there was the fact

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1 that it escaped regulation for about 30 years. It

2 got out from under the state and we no longer had

3

oversight or

conhol of those care funds, which is

4

the big thing, which would be different in this

5 case.

6

CHAIRMAN WILLIAMS: Mr. Joyce?

7

MR. JOYCE: I just have one question that

8 Brian kind of brought to mind.

9

Not wishing any ill will on the Coulter

10

family, but if they were to sell or divest

11 themselves of that, would this board have any

12

control over the purchaser or the

--

13

MR. BROWN: I'll

try

to address that in

14 two ways.

15

One is the amendment to the Host Agreement

16 that was included in the Staff report, paragraph

--

17 would include a new paragraph, 28

--

addresses if

18

PDC wants to transfer the facility they would have

19 to first come to the County Board and get approval

20

of whoever they are going to be hansfemng it to.

21 Okay.

22

The other side of that is that if they do

23 transfer it, these obligations go with the

--

to

24 the transferee.

1 through you were talking to somebody else

--

did I

2 hear you say something about contaminated water?

3

CHAIRMAN WILLIAMS: Mr. Brown?

4

MR. BROWN:

I think my comment was if

5

there is in the future, then you know

--

I'm not

6 sure. I mean, we can have the court reporter read

7 it back, but I am not sure exactly in which

8 question and answer that was related to.

9

MR.

WATKINS: 1 thought you said something

I0 about contaminated water. That's why I was asking

11

again so 1 could get a better clarification.

12

MR. BROWN: I don't know if it's possible

13

--

it will take her a little while to go back and

14

find that conversation, but ifyou want her to go

15

back, she can go hack and read it back. Because I

16 apologize, I don't recall exactly what question 1

17 would have said that in reference to.

18

MR. WATKlNS: If it's in there, could it

19 be in for the next meeting?

20

MR. BROWN: Sure.

2

1

CHAIRMAN WILLIAMS: Mr. Thomas?

22

MR. THOMAS: Just in support of Tim's idea

23 here, let me just ask a question I asked several

24 meetings ago. And one of the criteria for the

55

1

CHAIRMAN WILLIAMS: Pat, you made the

2 motion to accept this as amended?

3

MS. HIDDEN: Yes.

4

MR. RIGGENBACH: Second.

5

CHAIRMAN WILLIAMS: Tim, you were the

6

second.

7

Any other questions?

8

MR.

BAIETTO: My question is around my

9

$5.00 and the

--

you have recommended $1 50. And I

10

am not comfortable. Maybe $1.50 is not enough and

l l maybe $5.00 is too much, and maybe $100 is not

12 enough. But I don't have enough facts sitting in

13 front of me, and I know this hasn't been presented

14 to PDC, as Merle alluded to, in relationship to

15 what is fair. Maybe it isn't fair, but I am

16 uncomfortable with tonight, after we have had this

17 for two weeks and have looked at it, and assuming

18 you did your research and that cost would be

19 adequate for maybe not a major catastrophe, but now

20 we have attached on as to whether we want to pass

21 this whole Criterion 5 based on that, and I am not

22 comfortable with it.

23

MR. WATKINS: My question was

--

1 think

24 after 1 had asked you a question and when 1 got

57

1 Peoria County's Perpetual Care Fund is replacing

2

the domestic water supply. And I asked at the

3 time

--

and I don't remember if l got a

4

satisfactory answer

--

how do you do that?

5

That is a lot of battled water.

6

CHAIRMAN WILLIAMS: Who are you directing

7 the question to?

8

MR. THOMAS: To the Staff.

9

CHAIRMAN WILLIAMS: Mr. Brown or whoever

10 handles this area?

I I

MR. BROWN: Let me make sure I understand

12 the question.

13

The question was if there is groundwater

14 contamination, what do you do?

15

MR. THOMAS: Yes. How do you replace it?

16

It's listed here under the time line, it

17 says replacing domestic water supply as one of the

18 things that the Perpetual Care Fund would be

19 charged with.

20

MR. BROWN: My experience is that most of

21 the time that is to provide an

alternative to a

22 contaminated well.

23

There are some private wells that are

24

behveen the facility and the public drinking water

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58

1 wells that are, you know, quite a ways away from

2 the facility. So I have seen it at other sites,

3 not necessarily

--

I am not saying there is

4 contamination here. But what I am saying is

5

assuming you have got a contaminated well,

6

typically you close that well and you

--

whoever is

7 responsible for the contamination provides them an

8 alternative source of drinking water.

9

MR. THOMAS: Again, because we are talking

10 about a couple of different things

--

there is more

11 than just the expansion area that is out there.

12 And is this

Perpehlal Care Fund going to cover

13 contaminations that can be attributed to the other

14 parts? In fact, the other landfill part that isn't

15 even hazardous waste and, of course, the

banel

16 trench and the other places?

17

MR. BROWN: Yes.

18

MR. THOMAS: Thank you.

19

CHAIRMAN WILLIAMS: Junior?

20

MR. WATKINS: Since you are a lawyer, is

21 anybody here

from the health deparhnent that maybe

22 they can enlighten us?

23

MR. CAVI: As far as replacing the water

24 supply, is that what you are talking about?

6C

1

system, for which the government paid all of the

2

expansion. The homeowner did not have to pay.

3

MR. WATKINS: State or Federal?

4

MS. KENNEDY: State.

5

CHAIRMAN WILLIAMS: Brian?

6

MR. ELSASSER: Mr. Atkins, did you say we

7

could reconsider any of these findings in May? Is

8 that right?

9

The reason I ask that is because I am just

10 uncomfortable voting on this $5 a ton tonight.

11 Because like I said, this wouldn't replace the

12 domestic water supply if there was ever a major

13 breach. I don't like to vote when I feel

14 uncomfortable.

15

MR.

ATKINS: With regards to any decision

16 made tonight, it is simply a recommendation. You

17 are not finally deciding any issues tonight, so

18

anything that you decide tonight can be revisited.

19

In fact, it will be necessary in May for you

20 to review everything that you have done. You might

21 not take a vote on each separate condition again

22 but you will he reviewing everything that you have

23 decided tonight at the May meeting.

24

CHAIRMAN WILLIAMS: Any more questions?

1

The only alternative I am aware of

--

I know

2 there is public water supply that could be run out,

3 which would be an alternative, or hauled water.

4

Othenvise, I really don't have any other

5 explanation.

6

CHAIRMAN WILLIAMS: Any more questions?

7

MS. KENNEDY: Dave, in answer to that, we

8 actually had a situation about

18 or 20 years ago

9 on Famlington Road on a sheet that had several

10 residences with private wells, and those wells were

I1 contaminated by a locally owned company that also

12 sat along Farmington Road. And I worked with those

13 people to get the EPA to come in and do all of the

14 testing and that. And when it was determined that

15 their wells had been contaminated and what it was

16 and all of that, I wasn't real happy with the

17 responses that I got from the EPA in the way of

18 jumping right on this. But once that was

19 determined, they did pay for all of those

20 residences to have bottled water for drinking and

21 huge storage tanks full of water for bathing,

22 whatever else they needed to do, for a period of

23 about eight or nine months until those people could

24 then be connected to the Pleasant Valley Water

~

~~p-

61

I

MR. THOMAS: Procedurally here, did we

2 ever get a second on Tim's motion?

3

CHAIRMAN WILLIAMS: It was Pat's motion

4 and Tim was the second.

5

MR. THOMAS: The amendment is on the

6 floor?

7

CHAIRMAN WILLIAMS: Yes,

as amended with

8 special conditions, Criterion

5.

9

MR. ATKINS: I think to clarify what we

10 are doing here, if the maker of the motion and the

11 second would agree to include all of the amendments

12 discussed as part of the motion, then I think that

13 as a matter of parliamentary procedure we wouldn't

14 have to vote on the amendments, we could simply

15 vote on the motion.

16

You are both shaking your head, so I am

17 going to ask the Chairman to recognize that you are

18

amending your motion. You

are including, rather,

19 all of the amendments discussed in your motion.

20

CHAIRMAN WILLIAMS: I am glad you didn't

21 put words in my mouth.

22

Brian, go ahead.

23

MR. ELSASSER: If someone wanted to vote

24 against the amendment though and vote for the

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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62

Number 5 criterion, that wouldn't be possible,

right?

MR.

ATKR'IS: Right.

CHAIRMAN WILLIAMS: Okay. Madam Clerk,

roll call.

COUNTY CLERK THOMAS:

Baiena?

MR. BAIETTO: Before 1 vote, I want the

record to show that

I want this revisited at the

May meeting in relationship to some mare accurate

figures.

Aye.

COUNTY CLERK THOMAS:

Elsasser?

MR. ELSASSER: Aye.

COUNTY CLERK THOMAS: Hidden?

MS. HIDDEN: Yes.

COUNTY CLERK THOMAS: Joyce?

MR. JOYCE: Aye.

COUNTY CLERK THOMAS: Kennedy?

MS. KENNEDY: Aye.

COUNTY CLERK THOMAS:

Mayer?

MR. MAYER: Aye.

COUNTY CLERK THOMAS:

O'Neill?

MR. O'NEILL: Aye.

COUNTY CLERK THOMAS:

Pearson?

64

year floodplain.

CHAIRMAN WILLIAMS: Any discussion?

Mr. Prather?

MR. PRATHER: Move for approval.

MR. JOYCE: Second.

CHAIRMAN WILLIAMS: Second by Mr. Joyce.

Any

questions? No special conditions in this

one.

Roll call, Madam Clerk.

COUNTY CLERK THOMAS: Baietto?

MR. BAIETTO: Aye.

COUNTY CLERK THOMAS:

Elsasser?

MR. ELSASSER: Aye.

COUNTY CLERK THOMAS: Hidden?

MS. HIDDEN: Aye.

COUNTY CLERK THOMAS: Joyce?

MR. JOYCE: Aye.

COUNTY CLERK THOMAS: Kennedy?

MS. KENNEDY: Aye.

COUNTY CLERK THOMAS: Mayer?

MR. MAYER: Aye.

COUNTY CLERK THOMAS:

O'Neill?

MR. ONEILL: Aye.

COUNTY CLERK THOMAS:

Pearson?

Pages 62 to

65

ALLIANCE REPORTING SERVICE 309-691-0032

63

I

MS. PEARSON: Aye, and dino Bob.

2

COUNTY CLERK THOMAS: Phelan?

3

MR. PHELAN: Aye.

4

COUNTY CLERK THOMAS:

Prather?

5

MR. PRATHER: Aye.

6

COUNTY CLERK THOMAS: Riggenbach?

7

MR. RIGGENBACH: Aye.

8

COUNTY CLERK THOMAS:

Salzer?

9

MR. SALZER: Aye.

10

COUNTY CLERK THOMAS: Thomas?

11

MR. THOMAS: Aye.

12

COUNTY CLERK THOMAS: Tmmpe?

13

MS. TRUMPE: Aye.

14

COUNTY CLERK THOMAS:

Watkins?

15

MR. WATKINS: Aye.

16

COUNTY CLERK THOMAS: Widmer?

17

MR. WIDMER: Aye.

18

COUNTY CLERK THOMAS: Williams?

19

CHAIRMAN WILLIAMS: Yes.

20

COUNTY CLERK THOMAS: The vote is

17 ayes.

21

CHAIRMAN WILLIAMS: Thank you. Criterion

22 4.

23

COUNTY CLERK THOMAS: Criterion 4

reads:

24 The proposed facility is located outside the 100

65

1

MS. PEARSON: Aye.

2

COUNTY CLERK THOMAS: Phelan?

3

MR. PHELAN: Aye.

4

COUNTY CLERK THOMAS: Prather?

5

MR. PRATHER: Aye.

6

COUNTY CLERK THOMAS: Riggenbach?

7

MR. RIGGENBACH: Aye.

8

COUNTY CLERK THOMAS: Salzer?

9

MR. SALZER: Aye.

10

COUNTY CLERK THOMAS: Thomas?

11

MR. THOMAS: Aye.

12

COUNTY CLERK THOMAS: Trumpe?

13

MS. TRUMPE: Aye

14

COUNTY CLERK THOMAS: Watkins?

15

MR. WATKINS: Aye.

16

COUNTY CLERK THOMAS: Widmer?

17

MR. WIDMER: Aye.

18

COUNTY CLERK THOMAS: Williams?

19

CHAIRMAN WILLIAMS: Yes.

20

COUNTY CLERK THOMAS: The vote is

17 ayes.

21

CHAIRMAN WILLIAMS: Thank you.

22

Criterion Number 3.

23

COUNTY CLERK THOMAS: Criterion 3, the

24 proposed facility is located so as to minimize

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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Criterion

5

The

plan of operations for the facility

is

designed to minimize the danger to the

surrounding areas from

fire,

spills, and otber operations accideats, if certain special

conditions are met.

-

Applicant presented expert reports and testimony concerning its plan of

operations and its fire, spill, and operational accident plans;

The plans set forth details ofhours of operation, waste screening and acceptance

procedures, waste handling procedures, daily waste placement and cover

operations,

leachate management, air quality controls, dust managements, mud

tracking, noise control, access control, hazard prevent and emergency response

plans;.

The testimony and documents submitted by Applicant demonstrate it is fully in

compliance with

its regulatory requirements for financial assurance for closure

and post-closure care,

&d in fact has more funding in its trust than is presently

required

by IEPA;

The testimony and documents submitted both in support of and against the

application suggest that long

term care and maintenance of the facility is

necessay to fully and adequately protect the public health, safety and welfare;

The County ordinance requires the applicant to present calculations of perpetual

care costs for the proposed facility;

-

The Applicant presented perpetual'~are cost estimates during the public hearing,

and offered to implement and fnnd a perpetual care

fund

for the proposed

expansion as well

as inactive waste management areas of the larger facility;

Applicant's plans do not adequately provide for the perpetual care of the facility

after the

termination ofthe post-closure care period;

Applicant's plans do not adequately provide for the proper removal of leachate

from the leachate manholes;

Applicant'splans do not adequately provide for the monitoring of stormwater

discharges to make sure

stomwater has not come into contact with either the

waste

andlor leachate;

.

Questions and concerns were raised about coordination with fire departments

and emergency service providers, and the proximity to schools;

There was no evidence presented which demonstrated Applicant's plans for

fires, spills or accidents-were insufficient;

APR

2 7 2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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.:.

-

There was no evidence presented which demonstrated there was a lack of

JoAMN

APR'

2

THOIMA,S

7 2006

coordination with local fire departments and emergency service provides;

?EORIA

COU:~~

C:F?U

a

There was no evidence presented which demonstrated there was any risk to

schools

from potential fires, spills, or accidents at the facility;

The facility is located close to residential houses, anda fire, spill or other

operations accidents,

could present a danger for residents.

Special Conditions

-

Criterion 5:

1.

Leachate will be automatically removed from all leachate manholes to maintain

a minimal risk of

leachate on the manhole liner. This is intended to minimize

risk of

leachate leakage through liner components.

2.

The south stormwater detention basin shall be tested on a schedule identical to

the existing permit requirements for groundwater

monitoringwells and for the

following indicator constituents:

TDS (total dissolved solids), chloride,

calcium, bromide, sulfate,

and sodium. Although stormwater typically has less

stringent water quality parameters, the records shall be kept and analyzed to

verify

that trends do not increase tolevels of concern that would indicate

leachate has been accidentally released to stonnwater as long as the active

landfill operations occur. PDC shall notify the County of any statistically

signjficant upward trend in stonnwater concentrations.

3.

Effective upon PDC's receipt of apermit from Illinois EPA to operate the

proposed expanded landfill,

PDC shall pay additional sums into a perpetual care

hnd, on at least a quarterly basis equal to $5.00 per ton of the Expanded

Volume of Waste deposited in the PDC Landfill, but if the volume of waste

disposed of at the landfill facility

in any calendar year is less than 150,000 tons,

PDC shall pay into the fund a minimum of $750,000 for

15 years. Said

payments shall be calculated based upon the same information

and figures used

to calculate the Host Benefit Fee pursuant to Section

9 of the Host Community

Agreement, and shall be subject to the same documentation and verification

requirement of the Host Benefit Fee. Said Perpetual Care Fund shall be used

exclusively for the care and maintenance of the entire PDC site

aAer the period

of post-closure care for the expanded landfill

has been terminated by IEPA.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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8

George Mueller

GEORGE MUELLER, P.C.

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

Mr. Brian J. Meginnes

ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.

416 Main Street, Suite #1400

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

AFFIDAVIT OF SERVICE

The undersigned, a non-attorney, being first duly sworn upon oath, states that a

copy of the foregoing Motion for Partial Summary Judgment of Petitioner, Peoria

Disposal Company, was served upon the following persons via

facsimile transmission

and by enclosing a copy of same in separate envelopes, addressed as follows, and

depositing said envelopes in a U.S. Postal Service mail box at Ottawa, Illinois, on the

_____ day of August, 2006, before 5:00 p.m., with all fees thereon fully prepaid and

addressed as follows:

Illinois Pollution Control Board

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

(312) 814-3620 - Telephone

(312) 814-3669 - Facsimile

Ms. Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P. O. Box 19274

Springfield, IL 62794-9274

(217) 524-8509 - Telephone

webbc@ipcb.state.il.us

Mr. David A. Brown

Black, Black & Brown

Attorneys at Law

101 South Main Street

P. O. Box 381

Morton, IL 61550

(309) 266-9680 - Telephone

(309) 266-8301 - Facsimile

dbrown@blackblackbrown.com

Mr. David Atkins

Assistant State’s Attorney

Peoria County

324 Main Street, Room #111

Peoria, IL 61602

Mr. Brian J. Meginnes

Elias, Meginnes, Riffle & Seghetti, P.C.

Attorneys at Law

416 Main Street, Suite #1400

Peoria, IL 61602-1153

(309) 637-6000 - Telephone

(309) 637-8514 - Facsimile

Legal Assistant

Subscribed and sworn to before me, a Notary Public, in the County and State as

aforesaid, this ______ day of ____________________, 2006.

________________________________

Notary Public

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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1

GEORGE MUELLER

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

Petitioner,

v.

PEORIA COUNTY BOARD,

Respondent.

)

)

)

)

)

)

)

)

)

(Pollution Control Facility Siting Appeal)

CERTIFICATE OF SERVICE

PLEASE TAKE NOTICE THAT

on the 8th day of September, 2006, Brian J.

Meginnes, one of the attorneys for Petitioner, Peoria Disposal Company, forwarded to

the following persons, a copy of the Motion for Partial Summary Judgment and

Memorandum of Law In Support of Motion for Partial Summary Judgment, as well as a

copy hereof, by depositing the same in a mailbox in Ottawa, Illinois, addressed as

follows and with proper first-class postage affixed thereon:

Respectfully submitted,

PEORIA DISPOSAL COMPANY

BY: ________________________________

GEORGE MUELLER,

One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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2

GEORGE MUELLER

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

Mr. David Williams, Chairman

Peoria County Board

Peoria County Courthouse

324 Main Street, Room #502

Peoria, IL 61602

Ms. Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P. O. Box 19274

Springfield, IL 62794-9274

(217) 524-8509 - Telephone

webbc@ipcb.state.il.us

Mr. David A. Brown

Black, Black & Brown

Attorneys at Law

101 South Main Street

P. O. Box 381

Morton, IL 61550

(309) 266-9680 - Telephone

(309) 266-8301 - Facsimile

dbrown@blackblackbrown.com

Mr. William Atkins

Peoria County State’s Attorney

324 Main Street, Room #111

Peoria, IL 61602

GEORGE MUELLER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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1

GEORGE MUELLER

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

Petitioner,

v.

PEORIA COUNTY BOARD,

Respondent.

)

)

)

)

)

)

)

)

)

(Pollution Control Facility Siting Appeal)

CERTIFICATE OF SERVICE

PLEASE TAKE NOTICE THAT

on the 8th day of September, 2006, Brian J.

Meginnes, one of the attorneys for Petitioner, Peoria Disposal Company, forwarded to

the following persons, a copy of the Motion for Partial Summary Judgment and

Memorandum of Law In Support of Motion for Partial Summary Judgment, as well as a

copy hereof, by depositing the same in a mailbox in Peoria, Illinois, addressed as

follows and with proper first-class postage affixed thereon:

Respectfully submitted,

PEORIA DISPOSAL COMPANY

BY: ________________________________

GEORGE MUELLER,

One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006

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2

GEORGE MUELLER

628 Columbus Street, Suite #204

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

Mr. William Atkins

Peoria County State’s Attorney

324 Main Street, Room #111

Peoria, IL 61602

Ms. Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P. O. Box 19274

Springfield, IL 62794-9274

(217) 524-8509 - Telephone

webbc@ipcb.state.il.us

Mr. David A. Brown

Black, Black & Brown

Attorneys at Law

101 South Main Street

P. O. Box 381

Morton, IL 61550

(309) 266-9680 - Telephone

(309) 266-8301 - Facsimile

dbrown@blackblackbrown.com

GEORGE MUELLER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2006