BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C., )
Petitioner,
)
)
PCB07-113
)
THE CITY OF ROCHELLE, an ILLINOIS )
MUNICIPAL CORPORATION and THE
)
ROCHELLE CITY COUNCIL,
)
RESPONSE BRIEF OF
)
CITY OF ROCHELLE
Respondents.
)
(AS
APPLICANT)
THE CITY OF ROCHELLE, the applicant for siting in the above-captioned
matter ("City), by its attorney Alan H. Cooper, hereby files its brief in response to the
opening brief filed by petitioner Rochelle Waste Disposal, L.L.C. ("Operator").
For the reasons set forth in this brief, the City believes that the relief sought by the
Operator with respect to all of the conditions in question (Conditions 8, 13, 22, 23, 26,
28, 33 and 34) should be granted. Some of the conditions could have been formulated in
a manner that would have found support in the record and would have addressed the
concerns which prompted them. However, as they were formulated and imposed, the
challenged conditions find no support in the record, are not necessary in order for any of
the required criteria to be met, and should be stricken.
I. BACKGROUND AND STANDARD OF REVIEW
The Operator's brief adequately sets forth the background, facts and standard of
review in this appeal. Additional facts pertinent to the City's analysis will be set forth in
the section of the argument to which they pertain.
Electronic Filing - Received, Clerk's Office, December 10, 2007
II. ARGUMENT
The Operator's petition challenges eight of the 37 conditions imposed by the City
Council on its grant of siting approval. The conditions at issue relate to litter control
(Condition 8), exhumation of unit 1 (Condition 13), operational screening berms
(Condition 22), perimeter berms (Condition 23), City involvement in the permitting of
the expansion (Condition 26), City review of the groundwater impact assessment to be
submitted to the IEPA as a permit application (Condition 28), and improvement of
Mulford Road (Conditions 33 and 34).
These conditions, for the most part, did not have their origin in evidence
presented in the hearings. Rather, they originated in a report from the City Council's
reviewing engineering firm, Patrick Engineering (included in the Record at C-251
through C-270), which was submitted to the City Council after the close of the evidence.
No one from the Patrick firm testified, and there was no opportunity for the City, the
Operator, or any other party to cross-examine a representative from the Patrick firm.
Unfortunately, the conditions proposed in the Patrick Report were adopted by the
Hearing Officer with no analysis as to what evidence in the record supported them. They
were then adopted by the City Council either
verbatim,
or with minor modifications,
again with no analysis as to any evidentiary foundation.
The City believes that its Application, prepared by Shaw Environmental, Inc., and
supported by lengthy, detailed and persuasive testimony, provides a comprehensive,
thorough and wholly adequate plan for a small, environmentally sound and neighbor-
friendly landfill, without the imposition of the challenged conditions. Accordingly,
should the Board see fit to strike all of the challenged conditions as being unsupported by
Electronic Filing - Received, Clerk's Office, December 10, 2007
the evidence, sufficient safeguards would remain in place to ensure that the landfill
expansion would be constructed and operated properly.
A. Condition 8 (Litter Control)
The City's Application contains a litter control plan which imposes specific duties
on the Operator, including the following: (1) requiring incoming refuse vehicles to be
fully-enclosed or to have covers or tarps to prevent waste from blowing out of the
vehicles; (2) keeping the active disposal area as small as possible, while still allowing
safe operation; (3) daily cover; (4) a perimeter fence and exterior berm; (5) special
requirements during high winds, including the suspension of operations when the City
determines the Operator has not or is not able to adequately control blowing litter from
leaving its facility; and (6) patrolling of the facility and surrounding property to collect
any litter escaping the active fill area. (Application, Vol. 1, Sec. 2.6, pages 2.6-6 to 2.6-
7).
Additionally, the litter control plan requires the operator to inspect public rights-
of-way and adjacent areas along Mulford Road from the landfill entrance to Route 38,
and along Route 38 from Mulford Road west to the Interstate 39 exchange, on at least a
daily basis, with litter collection activities along these routes undertaken as needed.
(Application, Vol. 1, Sec. 2.6, pages 2.6-6 to 2.6-7).
Condition 8 (imposed as a condition to a finding on criterion (ii)), requires the
Operator to inspect not only the rights-of-way described in the Application, but also to
conduct a daily inspection of Route 38 from Mulford Road east through Creston to
Woodlawn Road, and to conduct litter collection along all of the foregoing routes at least
Electronic Filing - Received, Clerk's Office, December 10, 2007
weekly, and more often if the City Manager determines from the evidence that the
Operator is responsible for the litter.
While these additional burdens do not seem significant, there is nonetheless
nothing in the record that supports the City Council's finding that they are reasonable and
necessary in order for the requirements of Criterion (ii) to be met.
The final session of the landfill hearing, on February 8, 2007, was devoted almost
exclusively to an analysis of the Operator's operating history, which seems to have been
the concern which prompted Condition 8. During that hearing, Operator's exhibit 2 was
admitted in evidence without objection. It was a document prepared by Steve Rypkema,
the Ogle County Solid Waste Administrator, entitled "Summary of Inspections and
Apparent Violations Noted by Ogle County Solid Waste Management Department during
Inspections at the Rochelle Municipal Landfill #2 Landfill April 1991-December 2006."
Tom Hilbert, the engineering manager for the Operator, was questioned extensively about
the report by all counsel (Tr. Feb. 8, 2007, pp. 8-166). Neither Mr. Rypkema's report nor
any of the testimony about it support the conclusion that there has been a significant litter
problem at the landfill, or that litter from the landfill would not be adequately controlled
by the requirements set forth in the Application.
Mr. Rypkema's summary contains only two references to apparent violations
related to litter during the entire 11-year period that the Operator had operated the
landfill, beginning in 1995 (Tr. Feb 8, 2007, p. 110; Operator's Exhibit 2). There was, to
the best of the City's recollection and review of the record, no evidence that the landfill
had allowed litter to blow onto the rights-of-way anywhere on Route 38, or that refuse
trucks going to and from the landfill had caused a litter problem there. Accordingly, the
Electronic Filing - Received, Clerk's Office, December 10, 2007
requirements contained in the Application would be sufficient to protect the public
health, safety and welfare from any litter problems originating from the landfill.
Condition 8, in imposing additional inspection and collection requirements, is not
supported by the evidence, or alternatively is against the manifest weight of the evidence,
and should be stricken, leaving in place the wholly-adequate litter control requirements of
the Application.
II. CONDITION 13 (EXHUMATION OF UNIT 1)
Unit 1 of the existing landfill is an unlined unit which was in operation from 1972
to 1995, when it was closed. The Host Agreement between the Operator and the City, as
amended and restated on September 26, 2006, provides that in any application for siting
approval for an expansion of the landfill, the City may require the excavation and
redisposal of the waste from Unit 1 into a new Subtitle D unit, and that this process
(referred to in the hearing as "exhumation") must ".. .be commenced and completed
within a commercially reasonable time". (Application, Vol. 2, Ex. C, Sec. 7.4, pp. 19-
21). The City agreed to pay the first $850,000.00 of the exhumation costs and the
Operator agreed to bear the remaining costs. (Application, Vol. 2, Exhibit C, Sec. 7.4(b),
p. 19).
The Host Agreement's "commercially reasonable" standard was intended to take
into account the significant uncertainties associated with exhumation, while still
imposing an obligation on the Operator to proceed as promptly as circumstances allow.
Condition 13, on the other hand, deviates from the flexible standard contained in
the Host Agreement, in favor of a firm deadline. It requires the exhumation to be
completed as soon as practicable, "but in no event later than six (6) years from the date an
Electronic Filing - Received, Clerk's Office, December 10, 2007
IEPA permit is issued for the expansion, except as otherwise provided by the City
Council for good cause shown." The evidence does not support a finding that
exhumation can be completed within six years, or that a firm deadline of six years is
appropriate.
In the City's Application, Shaw Environmental included a detailed plan for the
exhumation, including the equipment to be used, the method of excavation and cover, the
proposed hours and times of the year when exhumation would occur, the nature and
quantity of cover to be used in the event hazardous waste is encountered, the air
monitoring program that would be required to avoid dangers from explosive gases and
VOC's , stormwater management requirements during exhumation, and additional safety
procedures to be implemented and safety equipment to be used during exhumation
(Application, Vol. 1, pp. 2.6-24 to 2.6-28). Waste relocation would be limited to the
months of October through March, in order to minimize odor, absent express written
approval by the City Council (Application, Vol. 1, p. 2.6-25)
Taking into account the requirements imposed by the Application and what is
presently known (and not known) about Unit 1, Shaw Environmental concluded that "[it]
is anticipated that relocation of Unit 1 will be performed over a 5-10 year period."
(Application, Vol. 1, p. 2.6-24).
The only witness who testified regarding the time needed for the exhumation was
Devin Moose of Shaw Environmental. He described the sequencing of exhumation (Tr.
January 24, 2007, pp. 321-323) and concluded that "we think that that's going to take on
the order of about 10 years to accomplish that". (Tr. January 24, 2007, pp. 323). He
testified that, based on his experience, he would expect to find municipal solid waste,
Electronic Filing - Received, Clerk's Office, December 10, 2007
industrial waste from the industrial processes in the City, and possibly small portions of
hazardous waste in Unit 1 (Tr. January 24, 2007, p. 320), and that "you never know what
you're going to find when you embark on these types of projects". (Tr. January 24, 2007,
p. 303).
No one testified that the exhumation could be completed within six years. To the
extent there may have been public comments urging a shorter time period for
exhumation, they were not based on kind of informed, expert analysis that would render
them competent or credible.
Based upon the Application and the testimony of Mr. Moose, the City Council
could possibly have imposed a ten-year requirement for completion, barring unforeseen
and unavoidable delays, but there was nothing to support a six-year limitation. Nor does
the proviso that the Operator may come back and ask for an extension for "good cause"
act as a substitute for the missing evidence, because it does not provide any standards for
the City Council's determination as to what constitutes "good cause". The Operator's
decision to challenge a condition that was unsupported by any evidence and which might
prove impossible (or impossibly costly) to fulfill, and its reluctance to rely on a future
City Council's unguided and unpredictable determination of "good cause", is certainly
understandable.
Condition 13, in imposing a firm six-year deadline for exhumation, is not
supported by the evidence, or alternatively is against the manifest weight of the evidence,
and should be stricken, leaving in place the Host Agreement requirement, negotiated
between the parties and approved by the City Council, that the exhumation "be
commenced and completed within a commercially reasonable time".
Electronic Filing - Received, Clerk's Office, December 10, 2007
C. Condition
22
(Operational Screening Berms)
The Operating Plan included within the Application contains requirements
concerning cell development, waste placement and compaction and placement of cover
materials. (Application, Vol 1, pp. 2.6-17 to 2.6-19). It also requires a perimeter
screening berm with vegetation and trees on top of the berm along Creston Road.
(Application, Sec. 3.1 p. 8; Sheets 5 and 6). However, the Application does not contain
an additional requirement for operational screening berms, and neither does the Host
Agreement.
Condition 22 requires operational screening berms between six and eight feet in
height along the southern edge, and partially along the eastern and western edges, of any
operating cells. This Condition was associated only with criterion (ii). The stated
purpose of the operational screening berms is "to block the operations from view from
Creston Road as well as help contain litter and reduce noise impacts."
No one testified that a condition requiring operational screening berms was
reasonable and necessary in order to ensure compliance with criterion (ii). Indeed, the
only discussion of operational screening berms (as opposed to perimeter screening
berms) in the entire record consists of brief comments by Devin Moose included in his
responses to questions addressed to other topics.
In answer to questions from Creston's attorney concerning whether consideration
had been given to a perimeter berm on the east of the landfill to screen a new subdivision
from the landfill, Mr. Moose indicated that the 100-foot height of the landfill would mean
that it could not be completely screened from the subdivision. He then indicated that
what is normally done is to use an operational screening berm for above-grade portions of
Electronic Filing - Received, Clerk's Office, December 10, 2007
the landfill so that landfilling activities took place in a bermed-in area on top of the
landfill, and that this would be the more appropriate approach for this subdivision (Tr.
January 25, 2007, pp. 201-202).
Mr. Moose also commented on operational screening berms in answer to a
question from the CCOC's attorney concerning the use of daily and intermediate cover.
After responding directly to the question, Mr. Moose added the comment that as a part of
the permit for the exhumation plan, he would include the use of operational screening
berms along the south and east edges of the active. These berms would be about six to
eight feet in height. (Tr. January 25, 2007, pp. 65-68).
Notwithstanding these comments, Mr. Moose testified that, in his opinion, the
design of the landfill expansion included in the Application, which did not include a
requirement of operational screening berms in addition to perimeter screening berms, met
the requirements of criterion (ii). (Tr. January 24, 2007, p. 195). No one testified to the
contrary. While screening berms might be desirable, and might be included in a future
plan or permit application, there is no legal foundation for imposing them as a condition
to siting approval.
Condition 22, in requiring operational screening berms, finds no support in the
evidence, or alternatively is against the manifest weight of the evidence, and should be
stricken.
D. Condition
23
(Perimeter Berm)
The Application calls for a ten to twelve foot undulating screening berm adjacent
to Creston Road to be planted with a variety of plant material, including masses of
conifer trees, canopy trees and ornamental trees. The proposed landscape plan, prepared
Electronic Filing - Received, Clerk's Office, December 10, 2007
by the Lannert Group, is depicted in sheets 5 and 6 included in Section 3.1 of the
Application. The trees and grasses would be installed to provide immediate impact and
mature over time. Deciduous shade trees would reach a mature height of 40 feet to 50
feet. Masses of conifer trees would have a height of 6 feet to ten feet at installation, and
would reach a height of 35 feet to 50 feet. Ornamental trees would have a height of from
six to ten feet at installation, and would reach a height of 15 feet to 25 feet. Ornamental
grass clusters would be massed at the base of the conifer trees to additionally enhance the
screening effect. (Application, Sec. 3.1, p. 8; Sheets 5 and 6).
Chris Lannert testified that the berm and plantings were designed to filter and
screen the existing operations at the landfill from view along Mulford and Creston Roads.
He indicated that there might be places where one would be able to see some of those
operations, but in most cases the entire periphery of the site would be screened from
miscellaneous views into it. (Tr. January 22, 2007, p. 110). He further testified that the
berm would be an undulating berm eight to ten feet in height along Creston Road. (Tr.
January 22, 2007, p. 98). Mr. Lannert gave the opinion that the proposed expansion,
including the landscape plan, complied with the requirements of criterion (iii). No one
testified to the contrary.
Condition 23 imposes the requirement that the perimeter berm be fourteen feet in
height, rather than the 10 to 12 feet set forth in the Application or the eight to ten feet to
which Mr. Lannert testified. Interestingly, that condition is not related to criterion (iii),
but only to criterion (ii). Condition 23 lacks any support in the record in two respects.
First, there was no testimony suggesting that the berm should be fourteen feet in height.
10
Electronic Filing - Received, Clerk's Office, December 10, 2007
Second, there was no testimony that such a berm was necessary to meet the requirements
of criterion (ii) (or, for that matter, to meet the requirements of criterion (hi)).
Condition 23 finds no support in the evidence, or alternatively is against the
manifest weight of the evidence, and should be stricken.
E. Conditions 26 and 28 (City Involvement in
Permitting and Groundwater Impact Assessment)
Condition 26 provides that the City and its legal and technical consultants shall
have the right to be involved in the permitting of the expansion, including the right to be
present at meetings between the Operator and its consultants, and the IEPA, and to
review and comment on the Operator's applications prior to submission, all at the
Operator's cost.
Condition 28 provides that the City shall have the right to review and comment on
any proposed Groundwater Impact Assessment before its submission as part of any
permit application.
Conditions 26 and 28 are associated only with criterion (ii).
Regardless of whether these conditions might be desirable from the City's point
of view, they were not included in the Host Agreement and, to the best of the City's
knowledge, there was simply no evidence presented that would form an evidentiary basis
to support them. Not only did no one testify that these conditions were reasonable or
necessary to meet the requirements of criterion (ii), to the best of the City's knowledge,
no one testified about these matters at all. They seem to have originated with the Patrick
Report in the absence of any evidentiary support, and should therefore be stricken.
Conditions 26 and 28 find no support in the evidence, or alternatively are against
the manifest weight of the evidence, and should be stricken.
11
Electronic Filing - Received, Clerk's Office, December 10, 2007
F. Conditions 33 and 34 (Improvements to Mulford Road)
Mulford Road is a two-lane, north-south road partly under the jurisdiction of the
Township and partly under the jurisdiction of the City of Rochelle. It has a weight limit
of 73,280 pounds. (App., Sec. 6, p. 6). It runs on the west side of the existing landfill.
The City's Application provides that, as part of the proposed expansion, Mulford
Road would be reconstructed and upgraded to a two-lane road with a weight limit of
80,000 pounds from Illinois Route 38 to just south of the site access drive. (App., Sec. 6,
p. 6).
While it was virtually undisputed that Mulford Road should be upgraded as part
of the landfill expansion, there were two associated matters that were not addressed in the
Application or in the Host Agreement. First, there was no agreement as to whether the
improvements would end at the new landfill entrance (to be located about 1,500 feet
south of the existing entrance and 500 feet north of the intersection of Mulford Road and
Creston Road) or would also include the intersection. Second, there was no agreement as
to who was going to pay the cost of the improvements.
The City introduced in evidence a letter from Curtis Cook, the Ogle County
Highway Engineer, which suggested that if Mulford Road were improved, the
improvements should include the Creston Road intersection (Applicant's Exhibit 8).
Michael Werthman of the firm of Kenig, Lindgren, O'Hara, Aboona, Inc., who prepared
the traffic portion of the City's Application, testified that the Application provides for
improvements only to the new landfill entrance because the impact of the expansion on
the portion of Mulford Road south of the new entrance is minimal and that portion of the
12
Electronic Filing - Received, Clerk's Office, December 10, 2007
road would be used only by collection trucks whose weight is below 80,000 pounds. (Tr.
January 23, 2007, p. 48).
With respect to the allocation of costs for the improvements, both Mr. Werthman
and Mr. Moose testified that they did not know who was to pay the costs (Tr. January 23,
2007, p. 110-1 ll;Tr. January 25, 2007, p. 135).
Conditions 33 and 34 require that Mulford Road be improved from Route 38 all
the way south to Creston Road, and that all of the cost of the improvements be borne by
the Operator, except with respect to the portion between the new landfill entrance and
Creston Road. With respect to that portion, the Operator would bear its proportionate
share as determined by a traffic study.
The City Council's allocation of costs is not supported by any evidence in the
record. With all due respect to the City Council, these conditions appear to be an attempt
to impose on the Operator, in the form of a siting condition, costs which should have
been negotiated and included in the Host Agreement.
It is self-evident that the improvements to Mulford Road will benefit both the
Operator and the City, as well as surrounding properties which are anticipated to be
developed for industrial uses in the future. Some form of equitable allocation (perhaps
including rights of recapture against adjacent properties) is clearly called for in this
situation. The evidence certainly would have supported a condition that would have
required the City and the Operator to allocate the costs between themselves in an
equitable fashion, and to further amend the Host Agreement to include that allocation.
However, the specific allocation contained in Conditions 33 and 34 is simply without
foundation in the record.
13
Electronic Filing - Received, Clerk's Office, December 10, 2007
Conditions 33 and 34 are without support in the record, or alternatively are
against the manifest weight of the evidence, and should be stricken, leaving the City and
the Operator to negotiate an agreement between themselves with respect to an appropriate
allocation of costs.
CONCLUSION
For the reasons set forth in this brief, the City, as Applicant, respectfully requests
that the Board strike all of the challenged conditions.
THE CITY OF ROCHELLE
By:
/s/ Alan H. Cooper
ALAN H. COOPER
Its Attorney
ALAN H. COOPER
Attorney at Law
233 East Route 38, Suite 202
P.O. Box 194
Rochelle, IL 61068
(815)562-2677
14
Electronic Filing - Received, Clerk's Office, December 10, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C., )
Petitioner,
)
)
PCB07-113
)
THE CITY OF ROCHELLE, an ILLINOIS )
MUNICIPAL CORPORATION and THE
)
ROCHELLE CITY COUNCIL,
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of
the Illinois Pollution Control Board RESPONSE BRIEF OF CITY OF ROCHELLE
(APPLICANT) on behalf of the City of Rochelle, as applicant, a copy of which is
herewith served upon you.
Is/ Alan H. Cooper
ALAN H. COOPER
Date: December 10,2007
ALAN H. COOPER
Attorney at Law
233 East Route 38, Suite 202
P.O.Box 194
Rochelle, IL 61068
(815)562-2677
Electronic Filing - Received, Clerk's Office, December 10, 2007
STATE OF ILLINOIS
COUNTY OF OGLE
CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of the foregoing RESPONSE BRIEF
OF CITY OF ROCHELLE (APPLICANT) and notice of filing was served upon :
Mr. Bruce McKinney
City Clerk
420 N. 6th Street
Rochelle, IL 61068
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W.Randolph Street
Chicago, IL 60601
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124SW Adams, Suite 360
Peoria, IL 61620
by electronic mail on the 10th day of December, 2007.
Mr. Donald J. Moran
Pedersen & Houpt
161 N.Clark Street
Suite 3100
Chicago, IL 60601
Mr. Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61101
Is/Alan H. Cooper
ALAN H. COOPER
ALAN H. COOPER
Attorney at Law
233 East Route 38, Suite 202
P.O.Box 194
Rochelle, IL 61068
(815)562-2677
Electronic Filing - Received, Clerk's Office, December 10, 2007
