70532569v1 871956
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C.,
Petit ioner,
v.
THE CITY OF ROCHELLE, an ILLINOIS
MUNICIPAL CORPORATION and THE
ROCHELLE CITY COUNCIL,
Respondents.
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PCB No. 07-113
NOTICE OF FILING
TO:
All Counsel of Record (see attached Service List)
PLEASE TAKE NOTICE
that on August 1, 2007, the undersigned filed electronically
with the Illinois Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, the
Opening Brief of Rochelle Waste Disposal LLC
, a copy o f which is attached hereto.
Dated:
August 1, 2007
Respectfully submitted,
ROCHELLE WASTE DISPOSAL, L.L.C.
s/Charles F. Helsten
Charles F. Helsten
One of Its Attorneys
Charles F. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Electronic Filing, Received, Clerk's Office, August 1, 2007
2
70532569v1 871956
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisio ns o f Section 1-109 o f t he Illino is Code of Civil
Procedure, hereby under penalt y of perjury under the laws o f the United States of America,
certifies that on August 1, 2007, she served a copy of the foregoing upon:
Hon. John McCarthy
45 East Side Square, Suite 301
Canton, IL 61520
jjmccarthy@winco.net
Donald J. Moran
Pedersen & Houpt
161 N. Clark St., Suite 3100
Chicago, IL 60601-3142
dmoran@pedersenhoupt.com
Glenn Sechen, Esq.
Schain Burney Ross & Citro n Ltd
222 N. LaSalle St., Suite 1910
Chicago, IL 60601
gsechen@schainlaw.com
David Tess, Esq.
Tess & Redington
1090 N. Seventh St.
P.O. Box 68
Rochelle, IL 61068
dtess@oglecom.com
Alan Cooper, Esq.
Attorney at Law
233 E. Route 38, Ste. 202
P.O. Box 194
Rochelle, IL 61068
cooplaw@rochelle.net
Emily Vivian
David Wentworth II
Hasselberg, Williams, Grebe, Snodgrass & Birdsall
125 SW Adams St., Ste. 360
Peoria, IL 61602-1320
evivian@hwgsb.com
dwentworth@hwgsb.com
Bradley Hallora n
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
hallorab@ipcb.state.il.us
Mr. Bruce W. McKinney
Rochelle Cit y Clerk
Rochelle Cit y Hall
420 North 6
th
Street
Rochelle, IL 61068
bmckinney@rochelle.net
via electronic mail before the hour of 5:00 p.m., at the addresses listed above.
/s Nicola Nelson___________
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
This document utilized 100% recycled paper products.
Electronic Filing, Received, Clerk's Office, August 1, 2007
70530357v1 871956
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C.,
Petit ioner,
v.
THE CITY OF ROCHELLE, an ILLINOIS
MUNICIPAL CORPORATION and the
ROCHELLE CITY COUNCIL,
Respondents.
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PCB No. 07-113
OPENING BRIEF OF ROCHELLE WASTE DISPOSAL L.L.C.
For the reasons set forth herein, the Petitioner, Rochelle Waste Disposal, L.L.C.
³RWD´),
respectfully requests that this Honorable Board refuse to affirm the challenged Special
Conditions imposed by the Rochelle City Council (
³City
Council´) in conjunction with its grant
of local sit ing ap pr oval for expansio n of t he R ochelle M unicipal Landfill. Sp eci al Condit io ns 8,
13, 22, 23, 26, 28, 33 and 34, which are at issue in this appeal, are purportedly related to Criter ia
(ii) and (vi). The evidence, however, shows that the challenged condit io ns are not reasonable
and necessary to accomplish the purposes of Section 39.2 of the Illinois Environmental
Protection Act
³(the
Act´), and are inconsistent with the regulat ions promulgated by this
Honorable Board. Moreover, the challenged Special Conditions are not supported by the
under lying record and run contrary to the t erms of t he Host Agreement executed by and between
RWD and the Cit y.
I.
BACKGROUND
The Pet itioner, RWD, is the current Operator of t he Rochelle Municipa l Landfill, located
in Rochelle, Illinois. On March 3, 2006, the City Manager submitted a report concerning his
inv es tigat ion into th e pos s ible expan sio n of th e L andfill. (Appl ic a t ion , Vol. II, App endi x A). In
that report, the City Manager concluded that expansion of the Landfill offered a number o f
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70530357v1 871956
potential benefits to the City including the opportunity to exhume Unit I of the existing Landfill ,
an unlined area which dates back to the 1970¶s. Thereafter, the City engaged in negotiations
with RWD, and on or about September 26, 2006, the Cit y and RWD entered into a Restatement
of Host Agreement and Agreement for Operation/Develop ment of Cit y of Rochelle Landfill No.
2 (³Host Agreemen´t). The Host Agreement sets forth the terms a nd condit io ns for the operatio n
of the facility and a proposed expansion of the existing facility. (
See generally
, Host
Agreement).
The Host Agreement provides that RWD will cooperate with the Cit y in planning and
designing the expansio n, and will cont inue as the Operator of the expansi
Id.
o n).
. (In addit ion ,
the Host Agreement specifies that RWD will pay the Cit y annual base fees, as well as per ton
fees, and that RWD will pay additional specified sums if the siting authority grants approval for
the expansio n consiste nt with t he t erms of the Host Agreem
Id.
en). t. T(he Host Agreement
further provides that RWD will donate certain real property to the Cit y to facilitate the expa nsio n
and accommodate re-disposal of waste from Unit 1 of the existing landfill. (
Id.
). Finally, the
Host Agreement provides that
³[t]he
Cit y and its officers, council members and employees will
not take any act ion which has the intended or probable effect of interfering unreasonably wit h
th e ope ration o r e xpan sio n o f the f a cil it y or th e E xpande d
´
Fa(
Id.
cilaitt y¶ . 5 .2 .) Th e t e rms o f
the Host Agreement were the product of extensive invest igat ion, study, and negot iation between
the parties, and the terms memorialize the part¶
iesrespective willingness to shoulder certain
specific costs, make certain specific payments, undertake certain specific duties and assume
certain specific responsibilities.
On or about October 16, 2006, the City filed its Application with the Rochelle Cit y
Council seeking local siting approval for the proposed expansion. Five days of hearings on the
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70530357v1 871956
Application ensued, commencing on January 22, 2007 and concluding on February 8, 2007.
Thereafter, the Cit y Council met to consider action on the Applicat ion, pursuant to Section
39.2(e) of the Act and pursuant to the Ci¶ts y local siting ordinance. The local siting ordinance
sets forth procedures and requirements consistent with the Act, and specifies that an Applicat ion
must meet the nine siting criteria set forth at Section 39.2 of the Act. Those criteria are:
(i) the proposed facility is necessary to accommodate the waste needs of the area it is
intended to serve;
(ii) the facility is so designed, located and proposed to be operated that public health
safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the
surrounding area and to minimize the effect on the value of the surrounding property;
(iv) (A) for a facilit y other than a sanitary landfill or waste disposal site, the facilit y is
located outside the boundary o f the 100 year floo d plain or t he site is floo d-proofed; (B)
for a facilit y that is a sanitary landfill or waste disposal site, the facilit y is located o utside
the boundary of the 100 year flood plain, or if the facility is a facility described in
subsection (b)(3) of Section 22.19a, the site is flood-proofed;
(v) t he plan o f operations for the facilit y is designed to minimize t he danger t o the
surrounding area from fires, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact
on existing traffic flows;
(vii) if the facilit y will be treating, storing or disposing o f hazardous waste, an emergency
response p lan exists for the facilit y w hich inc ludes not ification, conta inment and
evacuation procedures to be used in case of an accidental release;
(viii) if the facility is to be located in a county where the county board has adopted a solid
waste management plan consistent with t he p lanning requirements of the Local So lid
Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is
consistent with that plan; and
(ix) if the facility will be located within a regulated recharge area, any applicable
requirements specified by the Board for such areas have been met.
In addit ion, the Cit¶ys S it ing Ordinance requires that the landfill sit ing decisio n must be:
by resolution in writing, specifying the reasons for the decision, such reasons to
be in confor mit y wit h section 39.2(a) of the act. In grant ing site locatio n
approval, the city council may impose such conditions as may be reasonable and
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70530357v1 871956
necessary to accomplish the purposes of the act to the extent that said conditions
are not inconsistent with act and the regulations promulgated by the state
pollut ion control board.
(Rochelle Municipal Code, Article III, Division 1, Sec. 78-77(b)).
The City Council¶s decision on a siting permit must be based on the evidence admitted at
the public hearing, the entire siting record and,
to the extent supported by the record
, the
recommendation of the Hearing Officer. (
Id.
). In this case, the Hearing Officer stated in his
Findings of Fact, Conclusions of Law and Recommendations that,
³«the
application meets the
criteria set fort h in Sect ion 39.2 of the Act and I recommend that t he Cit y Council approve the
request for local sit ing approval subject to the spe cial condit ions which are set fort h h´ereinafter.
(Hearing Officer
¶s
Findings of Fact, Conclusions of Law and Recommendations, at p. 5).
Wit h respect to Criter ion ( i), the Hearing Officer concluded that the Applicant met the
requirements, having s hown that the facilit y is necessary t o accommodate the waste needs o f the
area it is intended to serve. (Hearing Officer
¶s
Findings of Fact, Conclusions of Law and
Recommendations, at p. 10).
As to Criterion ( ii), the Hearing Officer concluded that the Appli¶cans ext pert testimo ny
was more credible than that provided by the expert retained by CCOC, and he opine³I d, agree
with the opinions expressed by Mr. Drommerhausen and Mr. Moose. Their testimony appears to
be uncontradicted and unrebutted.´ (
Id
. at p. 20 ) . He ac c ordi n gl y foun d th a t th e re quiremen ts o f
Cr iterion ( ii) were met.
The Hearing Officer similarly found that Criteria (iii), (iv), (v), (vi), (vii), (viii) and (ix)
were met. (
Id.
at p. 25, 27, 34, 36, 37).
With respect to Criterion (vi), the hearing officer observed that the only testimony
concerning that criterion was provided by the applican¶s texpert, Mr. Werthmann, and after
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70530357v1 871956
recit ing the evidence presented, the Hearing Officer concluded t hat Criterion (vi) was
Id
m. et.
at (
p. 34).
Although he found that all the statutory criteria were met, the Hearing Officer
nevertheless recommended imposing numerous Special Conditions, which he proposed in order
to
³encourage
compliance by the operator and assist in minimizing t he concerns of C´
COC(
Id
.
at 38) (emphasis added).
On or about April 11, 2007, the City Council passed Resolution R07-10, in which the
Council rendered its findings. The Resolut ion includes t he finding t hat every sit ing criter ion was
met, and, accordingly, grants approval o f the site expansion. Notably, the vot ing record
memorialized in the Resolution reveals that the Council membe¶ rsvotes were virtually
unanimous in finding t hat the Applicant demonstrated compliance wit h ever y criter ion.
However, the Resolution imposes thirty-seven (37) Special Conditions, some of which echo the
condit ions proposed by the Hearing Officer.
In the aftermath of the Counci¶s l Reso lut ion, RWD filed a Mot ion for Reconsideration in
which it objected to Conditions 8, 13, 22, 23, 26, 28, 33 and 34. On May 14, 2007, the City
Council passed Reso lut ion R07-18, which affirmed the sit ing permit approval and the imposit ion
of t he condit ions, but mod ified Condit ion 34.
The Special Conditions challenged in this appeal are not necessary to accomplish the
purposes of the Act, are inconsistent with the Board¶s regulations, and would significantly alter
the terms negotiated by the Cit y and RWD in the Restatement of the Host Agreement; many o f
the Special Conditions would dramatically increase the costs of operation and unreasonably
interfere wit h operation of the proposed expansion and the economic feasibilit y of the project.
Moreover, they enjoy no support in the record, and are derived largely from the Council
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70530357v1 871956
Members¶ eagerness to defer to the opinions of their hired experts outside the record, and to
minimize concerns of the CCOC.
The Criteria at issue in this appeal
No Special Conditions were imposed in conjunction with the Council
¶s
findings
concerning Criteria (iv), (v), (vii), (viii) and (ix). The conditions imposed in R07-10 are
assoc iated w it h: Cr iter ion ( i) (Condit ion 36, not at issue in this appeal) ; Criter ion ( ii) (Condit io ns
1-32, some of which are at issue); Criterion (iii) (Condit ion 37, not at issue in this appeal) ; and
Criterion (vi) (Conditions 33-35, of which 33 and 34 are at issue). As a result, the Special
Condit ions at issue in this appeal relate only to Criteria ( ii) and (vi).
The fact that imposing certain condit ions migh³mit nimize the concern´
s o f a cit izen¶s
group (CCOC) is not a legit imate legal basis for imposing Special Condit io ns pursuant to a grant
of siting approval. Because the Council¶s imposition of the challenged conditions is not
reasonable and necessary t o accomplish the purposes o f t he Act, is unsupported by the record of
the proceedings, contravenes the terms of the Host Agreement, and is designed in large part
simply to shift,
ex post facto
, the Cit y¶s previously agreed-upon financial o bligat ions onto RWD,
the conditions are improper and should be str icken.
II.
STANDARD OF REVIEW
In an appeal seeking review o f condit io ns, the Petitioner bears t he burden o f proving that
the Applicat ion as submitted, without the condit ions, would not vio late the Act or the
¶Boards
regulations.
Browning-Ferris Industries of Ill., Inc. v. PCB
, 179 Ill.App.3d 598, 607, 534 N.E.2d
616 (2
nd
Dist. 1989);
Jersey Sanitation Corp. v. IEPA
, PCB-00-082 at *6 (June 21, 2001). A
condition that is not necessary to accomplish the purposes of the Act or Board regulations is
arbitrary and unnecessary and must be deleted.
Jersey Sanitation,
at *4-5.
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70530357v1 871956
When considering whether a condit ion is necessary to accomplish the purpose of a
Section 39.2(a) sit ing criterion, the Board must determine whether the local govern¶msent
decisio n to impose the c ondit ion is a gainst the mani fe st weight of the
W
evi
aste
den
Mgmt.
c e .
of
Ill. v. Will Co. Bd
., PCB 99-141 at *3 (Sept. 9, 1999) (
affirmed
,
Will Co. Bd. v. Ill. PCB
, 319
Ill.App.3d 545 (3
rd
Dist. 2001).
III.
ARGUMENT
In granting approval for a site, t he governing bod y o f a municipalit y may impose only
those conditions that are reasonable and necessary to accomplish the purposes of Section 39.2,
and are not inconsistent with the regulations promulgated by the Board.
Waste Mgmt. of Ill. v.
Will Co. Bd
., PCB 99-141 at *2 (Sept. 9, 1999). To be permissible, a conditions must be
³reasonable
and necessary to meet the waste needs of the are´a.
Will Co. Bd. v. PCB
, 319
Ill.App.3d 545, 548 (3
rd
Dist. 2001).
The evidence presented in this case confirms that the proposed expansio n is designed and
proposed to be operated so as to protect public health, safety and welfare, and the Applicant
demonstrated compliance wit h all o f the sit ing c r iteria of Section 39.2(a
without
)
the Specia l
Conditions. The challenged conditions are not necessary to assure compliance with the Act and
are inconsistent with the regulations promulgated by the Board. They are therefore improper,
and shou ld accordingly be deleted.
A.
The Challenged Conditions are Not Reasonable and Necessary to Accomplish the
Purposes of Section 39.2 and are Inconsistent with the Board
¶
s Regulations
Of the eight (8) Special Condit ions challenged in t his appeal, the Counci¶s Resl o lutio n
associates Conditions 8, 13, 22, 23, 26, and 28 with Criterion (ii). (Resolution R07-10).
Conditions 33 and 34 were associated with Criterion (vi). In each case, however, the Special
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70530357v1 871956
Conditions imposed by the City Council are not reasonable, and are not necessary to achieve
compliance w it h t he Act.
1)
Conditions 8, 13, 22, 23, 26, 28, purportedly imposed pursuant to
Criterion (ii)
A.
Evidence regarding Criterion (ii)
The Applicant, by its own admissio n, submitt ed an exhaustive, co mprehensive
Application whose data establishes that the proposed expansion complies fully with Criterion
(ii). In addit io n, expert witness test imo ny concerning Criterion (ii) was provided at the public
hearings by Daniel Drommerhausen, Devin Moose, and Charles Norris. Both Drommerhausen
and Moose testified that the Applicat ion for the proposed expansio n co mplies wit h the
requirements o f Cr iter ion ( ii). Norris had no opinio n as to whether t he Applicat ion co mplies
wi th C ri teri on (i i ).
i.
Application data
(a)
The Locale/Geology/Water Safety
Applicat ion data shows t hat t he site complies wit h all requirements relevant to Criterion
(ii). The site is located in an area which is primarily agricultural, planted in row crops.
(Applicat ion, 2.2-3). The nearest airport to the pro posed expansio n is a municipal airport that is
over 10,000 feet from the site. (Applicat ion, Table 2.1-1 (A)). The expansion area is not located
within the FEMA 100- year floo dplain. ( Applicat ion, Table 2.1-1 (B)). A wetland deter minat ion
and delineation has been conducted, and the expansion has been designed and located to
minimize disturbance potential to wetland areas. (Application, Table 2.1-1(C)).
There are no known fault s that have displaced during the Ho locene Epoch within 200 feet
of the site, and t here are no documented unstable areas beneath the excavation. (Application,
Table 2.1-1(D/E). There are no reported karst areas or areas of known underground mining
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70530357v1 871956
within the proposed area. (
Id.
). The proposed expansion site is not located within a seismic
impact zone that has a 10% chance of exceeding .10 g in 250 years, and it has been designed to
achieve a safety factor greater than 1.3 against slope failure under seismic conditions.
(Application, Table 2.1-1(F).
The area does not encompass any rivers designated for protection under the Wild and
Scenic Rivers Act, and Phase I Archaeological Surveys for the existing landfill and the
expansio n area o f found no evidence of materials t hat meet the requirements of Sect ion 4 of the
Illinois State Agency Historic Resources Preservation Act. (Application, Table 2.1-1(G/H).
Development will not proceeding without confirmation from the IHPA that there are no
significant historical, architectural, or archeological resources within the proposed expansion
areas. (
Id
.). The proposed expansion will not impact any potentially endangered or threatened
species. (Application, Table 2.1-1(H/I)).
The proposed expansion will not violate any area-wide or state-wide water quality
management plan, and the extensive sto rmwater management features constructed during landfill
develop ment will reduce t he potential for downstream floo ding and improve the qualit y o f runoff
when compared to existing conditions. (Application, Table 2.1-1 (J)). There are no community
water supply wells within 2,500 feet of the waste boundary, as per the setback zones defined in
Section 14.2 and 14/3 of the Illinois Environmental Protection Act. (Application, Table 2.1-
1(K)). No sole source aquifer or regulated recharge area is located within the proposed
expansion site. (Application, Table 2.1-1(L)).
The facility¶s operations will be screened from view along South Mulford Road, East
Creston Road, South Locus Road, and Illinois route 38 by a vegetated earthen berm or fence with
a total height of no less than 8 feet. (Application, Table 2.1-1(L/M). The proposed expansion
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70530357v1 871956
will be located more than 500 feet from all occupied dwellings, schools, retirement homes,
hospitals, or like inst itutions unless written permissio n for a closer distance from the owner is
provided prior to permit approval. (Table 2.1-1(N)).
The hydrogeolog ic analysis conducted by S haw Environmenta l confir med that the
proposed expansion is located and designed so as to protect the public health, safety, and
welfare. (Application, Sect ion 2.2-1). The geology of the site will supplement the proposed
expansio n design and will provide a high level of environmental safe
Id.
ty. ). (
The site features a low-permeability cohesive soil (Tiskilwa Formation) which is present
across the site and which will separate the proposed landfill from the uppermost aquifer.
Id.
) (
The average thickness of the clay between the base of the liner and the uppermost aquifer is
approximately 25.3 feet across the expansion area. (Application, 2.2-47). Field and laboratory
testing and field observat ions indicate that t his so il will effect ively restr ict vertical and horizonta l
movement of groundwater and will serve as an additional environmental safeguard at the
proposed site. (
Id.
)
The analysis o f the site¶s geo logy and hydrogeology included a total o f 73 cont inuously
sampled boring locations, and installation of 66 monitoring wells. (Application, Section 2.2-1).
The site c ondit io ns will allow a c o mpr ehensive gr oundwa ter monito ring system to be implement
which will adequately verify that groundwater resources are not being impacted by the landfill.
(Applicat ion, Section 2.2-2). The groundwater monitoring system for the site consists o f a
network of groundwater qualit y mo nito ring wells located both upgradient and downgradient of
the proposed expansion. (Applicat ion, Section 2.8-1). The proposed final monitoring network
consists of 34 groundwater monitoring wells located within the uppermost aqui
Id.
fer.
) (
(b)
Litter control
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70530357v1 871956
The Applicat ion establishes that the site will feature a number o f operating procedures to
minimize and control litt er. (Application, Sect ion 2.6-6). Incoming refuse vehicles w ill be
required to be fully-enclosed or to have covers or tarps to prevent waste from blowing out of the
v ehicl es .
Id
(.). The act ive d isposal area will be k ept as small as possible and will be covered at
the end o f each da y wit h daily cover materials including so il, synt het ic covers, and alter nate
daily cover materials as approved by the FDA. (Application, Section 2.6-6) (but see Condition
13, which, paradoxically enough, would dramatically increase the size of the working face). The
ent ire facilit y will be surrounded with a perimeter fence and exterior berm to collect litt er that
may escape beyond the active face. (
Id.
) Daily activit y will be modified during periods of hig h
winds. (
Id
.) Temporary litter fences will be used near the active face to provide additional
protection against blow ing litt er
Id
. .). ( Operations w ill be suspe nded whenever susta ined winds
reach 35 mph, in times of tornado alert, or if the Cit y determines the Operator has not or is not
a ble to a dequa tely pr event or control blowing litt er from le aving t he
Id.
fa) ciliLtaby. orers
(
will
patrol the facility and the surrounding property to collect any litter that escapes the active fill
area, including litter caught by the portable and perimeter fencing, with collected litter being
placed either directly into the landfill and covered, or placed in a secure, covered container for
later disposal.
Id.
( ).
Laborers will conduct daily inspect ion o f Mulford Road from the landfill facilit y entrance
gate extending north to Illinois Route 38. (Application, Section 2.6-7). They will also inspect
Illinois Route 38 from the intersection of Mulford Road extending west to the Interstate 39
interchange. (
Id.
).
ii.
Mr. Daniel Drummerhausen
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70530357v1 871956
Mr. Drommerhausen is a professional geologist at Shaw Environmental who holds a
master¶s degree in hydrogeology. (Tr. 1/23/07 at 199). He testified concerning the process of
conducting a geologic/hydrogeologic site analysis.
His testimony included a detailed
explanat ion o f the geolog y of the landfill site a nd the role o f geolog y in t he
¶ls
andedfillsign,
including t he importance of predict ing potential migrat ion pathways and the accompanying need
for designing appropriate monitoring systems to ensure safety. (Tr. 1/23/07 at 200-205; 214-15).
He discussed the boring sampling and analysis performed to ascertain whether the site is
appropriate for the proposed landfill expansio n. (Tr. 1/23/07 at 205-208). He also explained the
importance of so il and rock core sampling, and the process of determining the qualit y and type of
soil and rock that are present, as well as the presence of fracturing if any. (Tr. 1/23/07 at 209-
213). He described the extensive testing that was done to determine conductivity at the site. (Tr.
1/23/07 at 216-226).
Drommerhausen discussed the potentio metric mo nitoring done for the proposed site. (Tr.
1/23/07, at 235-36). He testified that after the analysis was completed, Shaw Environmental
concluded that the Tiskilwa for mat ion at t he site, approximately 25 feet o f clay, silt y clay and
silt, will effectively restrict vertical and horizontal movement of groundwater and will serve as
an additional safeguard for the proposed facility.
(Tr. 1/23/07 at 227, 237).
Shaw
Environmenta l also found that the geolog y and hydrogeolog y at t he site is u nifor m and
predictable, and is consiste nt with findings t hat have been approved and reviewed by IEPA at t he
existing permitted landfill. (Tr. 1/23/07 at 237-38). Drommerhausen explained that the critical
areas of the proposed site will feature one HDPE liner, then a geosynthetic clay liner, then
another HDPE liner, and finally three (3) feet of clay. (Tr. 1/23/07 at 239-40). He concluded
that even using very conservative parameters, the modeling done for the site showed that the
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70530357v1 871956
proposed design would be in compliance with IEPA standards for groundwater impact. (Tr.
1/23/07 at 241).
iii.
Mr. Devin Moose
Mr. Moose is a civil engineer with more than twenty years of experience in landfill
design, who is the director of the St. Charles, Illinois office of Shaw Environmental. He
explained that the Application in this case complies with the relevant regulations pertaining to
seismic impact zones, floo d plains, wet lands, endangered species and setback requirements. (Tr.
1/24/07 at 146-150; PowerPoint 21 to 25;
see also
Application 2.1-1 to 14). For example,
although the required setback from community water supply wells is 2,500 feet, in this case the
proposed facility is more than 6,000 feet from the nearest such well. (Tr. 1/24/07 at 149-150).
Mr. Moose testified as to the si¶s tefavorable geo logy for a landfill, which w ill be complemented
by a composite liner system composed of three feet of compacted clay beneath a 60-mil high-
densit y po lyethylene (HDPE) liner. (Tr. 1/24/07 at 154-55; Po werPoint 29; see also Applicatio n
2.3-4). He testified as to the additional engineered clay liner that will be enhanced in areas
where there could be standing leachate. (Tr. 1/24/07 at 161-62). He also testified concerning the
final cover system, as well as the systems to be used for installing wells to remove gas from the
landfill. (Tr. 1/24/07 at 167-172).
Mr. Moose testified that the Groundwater Impact Evaluat ion run by Mr. Drommerhausen
showed that even when utilizing extremely conservat ive assumpt ions, models show there will be
no impact from the landfill development within 100 feet of the waste boundary even 100 years
after closure. (Tr. 1/24/07 at 172-73; PowerPoint 51; see also Application 2.7-1 to 31). He
testified that the appropriate monito r ing wells will be insta lled to detect releases. (Tr. 1/24/07 at
173-75; PowerPoint 52-53). Finally, he testified that the proposed expansion will include
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14
70530357v1 871956
exhumat ion of the o ld unlined landfill, Unit 1, which will occur as quickly as possible, wit h the
waste from Unit 1 being placed into Cell One of the expansion area. (Tr. 1/24/07 at 177-79).
This process will involve removing the accumulated waste from an area that is currently unlined,
and placing it into a modern, lined area, thereby providing substantial environmental benefits.
(
Id.
)
He explained that a construction quality assurance
³CQA(
´)
officer will be on-site to
oversee the exhumat ion, and t hat the exhumat ion activit ies will also be reviewed and p ermitt ed
by IEPA. (Tr. 1/24/07 at 178-179).
iv.
Mr. Charles Norris
Mr. Charles Norris, a consultant and professional geologist retained by an objector, the
Concerned Citizens of Ogle County
³(CCOC´),
is not an engineer, and had no opinion
concerning the engineered co mponents of t he proposed expansio n. (Tr. 1/25/07 at 255-56; 259).
Most importantly, Mr. Norris testified that he would not render an opinion as to whether the
proposed expansion satisfies Criterion (ii). (Tr. 1/26/07 at 156). He did, however, opine that if
the City Council granted siting approval, the Application would likely be routinely approved by
the IEPA. (Tr. 1/25/07 at 262). He further opined that Unit 1 could probably be managed even
without any exhumat ion, and he encouraged the Cit y Council to consider alternatives to
exhumation of Unit 1. (Tr. 1/25/07 at 324-25). Mr. Norris went on to explain that he would
make no recommendation to the City Council concerning Unit 1. (Tr. 1/26/07 at 195).
When viewed together, the Application and the testimony of the experts at the hearing
showed conclusively that the Applicant has met the requirements of Cr iterion ( ii) without the
need for imposit io n of the Special Condit ions at issue in this appeal.
1.
Condition 8
(imposing duties of litter control along a route not authorized for waste
transport) is not necessary to comply with Criterion (ii) and so is not necessary to
achieve the purpose of the Act.
Condit ion 8 requires t hat:
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15
70530357v1 871956
The Operator shall, at a minimum, inspect on a daily basis the public rights of
way, and areas adjacent to t hese r ights o f way, from the landfill facilit y gate North
on Mulford Road and along Route 38 West to the Interstate 39 interchange and
Route 38 East through Cresto n to Woo dlawn Road. Litt er collect ion along these
r ights of way shall be perfor med at least once per week, and more often if the Cit y
Manager determines from review of evidence that the Operator is responsible for
the litt er .
(Resolution R07-10, Attachment A, ¶ 8).
According to Resolution R07-10, Special Condition 8 was imposed pursuant to the
Board¶s considerat ion of Cr iter ion ( ii).
Notably, the City of Rochelle observed in its Response to RW¶s D Motion for
Reconsiderat ion that litt er control was carefully considered in t he for mulat ion o f the Application,
and that the Cit y did not believe the addit io nal lit ter control measures described in Condit ion 8
were necessary. (Applican¶s t Response to Operator¶s Motion for Reconsideration at 10-11).
Most importantly, the Cit y not ed th³that ere was no testimo ny that the requirements [ for litt er
control] set forth in the [A]pplicat ion were inadequate, and no testimony wit h respect to any
necessit y for additional litt er control [ measures]. . .beyond those set forth in the [A]pplicatio n
and testified to by the Cit¶ys witnesses.´
Id.
Thus, the City found there is no support in the
record for this condit io n.
As explained above, the Application delineates numerous, detailed operating procedures
that will minimize and control litt er. (Applicat ion, Section 2.6-6). In addit ion to requiring that
incoming vehicles must be fully-enclosed or be covered wit h tarps, the active waste disposal area
will be kept small and will be covered at t he end of each day. ). (
Id
The entire facility will be
surrounded with a perimeter fence and exterior berm which will catch litter that might otherwise
escape beyond the active face. (
Id.
) Daily activity will be modified during periods of high
winds, and temporary litter fences will be used near the active face, with operations suspended
dur ing per iods o f high, susta ined winds, tornado alert, or if the Cit y finds that the Operator is not
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16
70530357v1 871956
adequately controlling litter.
Id.
() Laborers will patrol the facilit y and surrounding area to
collect any escaping litter, and will conduct daily inspection of Mulford Road from the landfill
facility entrance gate extending north to Illinois Route 38. (Application, Section 2.6-7). They
will also inspect Illino is Route 38 from the intersection o f Mulford Road extending west to the
Interstate 39 interchange. (
Id.
).
Special Condit ion 8 expands the area for litt er contro l to include all public r ights o f wa y
and areas adjacent to those rights of way, along Route 38 East through Creston to Woodlawn
Road. However, Condit ion 35 mandates t hat all transfer t railers traveling t o and fro m the facilit y
are mandated to do so by utilizing Route 38 West of Mulford Road to the Interstate 39
Interchange. (Resolution R07-10, ¶ 35). Thus, waste hauling cannot even occur along the
expanded route required by Condition 8.
In the after math o f the Motion for Reconsideration, the Cit y Council met to consider t he
request that t he Special Condit io ns be mod ified o r deleted. Wit h respect to Condit ion 8, Counci l
Member Hollonbeck stated that she believed it was a good idea to expand the area of required
litt er patrol because it would show that the C it y wanted to
³bgoe
od
a neighbor´ to Creston. (Tr.
5/8/07 at 8-9). Council Member Berg responded that he was in favor of Special Condition 8
because he was unhappy with the Operator
¶s ³history
.
´
(
Id
. at 9). According to Berg,
³The
ope rator¶s his tory of
±
th ey sto od righ t th e re a nd said we h¶avt denon e a ve ry good job o perati ng
this landfill, and t hat was one o f my reasons for sayi¶ng
s exletpand it up to Woodlawn Road. . .I
think we need t o hold t heir feet to the fir e o´
n (i
Id
t. . at 9-10).
Council Member Hayes questioned whether it was appropriate to so expand the area of
litt er monito r ing, and whether it was appropriate to assume that litt er found alo ng area ro adways
was attributable to the landfill. He observed,
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17
70530357v1 871956
We that live in Rochelle have seen the litter across from the
Sullivan¶s store more recently where none of the transfer trailers
go by and i¶ts been worse than
¶Ive
ever seen it before, and it is not
in a route of any of the transfer trailers or any of th± e which is a
problem. My question is how
±
how would one determine that
they¶re respons
±
that the operator or the transfer company is
responsible for any particular route? . . .[Y]ou go o n routes, which
I do on a fairly regular basis, where there is no
±
there are no
trucks, there are no landfills and the trash is still in the trees along
those roads, and who makes that determination?
«I
don¶t know
how all the trash on a certain route can deem to be the
responsibilit ies of the operator of the site.
(Tr. 5/8/07 at 13) (emphasis added).
Notwithstanding Mr. Hayes¶ observations, the Council Members voted to impose
Condit ion 8. The Council¶s vote to retain this condit ion is perhaps unsurprising, given
comments made dur ing t heir init ial consideration of this condit ion at the April 11, 2007 meeting,
when Council Member Berg e xplained t hat the litt er control requirements were not so much
about ensuring that the landfill did not generate litter in the area, as they were designed as a sort
of public relations measure. He explaine³d, It¶s a perception issu
.
e
I me an , anybod y wh o dr ives
38, who¶s the first person you¶re going to think of if you see a bunch of garbage out there?
You¶re going to think of the landfill .
¶re
Ygoouing to think of the trucks that go to that landfill .
That¶s why they indeed have the onus on them to keep it clean.´ (Tr. 4/11/07 at 83) (emphasis
added).
Clearly, the record conta ins no evide ntiar y support for requir ing the expanded litt er
control requirements imposed by Condition 8. There is no evidence to show it is necessary for
compliance wit h Cr iter ion ( ii). Accordingly, Condit io n 8 is not necessary to accomplish the
purposes of Section 39.2 of the Act and is not consistent with this
¶s
Breoardgulat ions. It shou ld
therefore be deleted.
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18
70530357v1 871956
2.
Condition 13
(imposing a 6 year deadline to exhume waste from Unit 1) is not
necessary to comply with Criterion (ii) and is therefore not necessary to accomplish
the purposes of the Act.
Condit ion 13 requires that:
The Operator shall complete the exhumation and redisposal of waste from Unit I
as soon as practicable, but in no event later than six (6) years from the date an
IEPA permit is issued for the expansio n, except as otherwise provided by the Cit y
Council for good cause shown. The waste exhumation and redisposal shall be
restricted to the months of November, December, January, February and March
unless it is demonstrated to the City Council that the process can occur in other
mo nths wit hout off-site odor migrat ion o r other impacts assoc iated wit h the
process.
(Resolution R07-10, at Attachment A, ¶ 13).
In considering Condition 13, it is important to remember that the waste to be exhumed
fro m Unit 1 was cont inuously deposited at the site, year-round, over a twent y-three year period,
from 1972-1995. Clearly, this represents a substantial amount of waste in terms of weight and
vo lume. Condit io n 13 not only requires t hat all o f the waste be exhumed wit hin six years, it also
limits exhumation work to the months of November through March, thus effectively requiring
the Operator to remove 276 months (23 years x 12 months) of accumulated waste within, at
most, and under optimal conditions, 30 months (6 years x 5 months). Notably, the months
dur ing w hich exhumat ion is per missible under this Condit ion are those most likely to include
substantial periods of inclement weather. There is no evidence in the record to support the
proposit ion t hat the exhumat ion must be co mpleted within six years in order to protect the public
health, safety and welfare.
Rather, the Application includes Shaw Environmen¶s taldiscussion o f the proposed
exhumat ion, and provides deta iled plans and procedures, including the equipment to be used, the
method of excavation of cover, the proposed hours and times of year for the exhumation, the
nature and quantity of cover to be used, the procedures to be used in addressing any hazardous
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19
70530357v1 871956
waste that may be encountered, an air monitoring program, stormwater management
requirements, and other safety procedures. Shaw Environmental generally estimates that
relocation of Unit 1 could be accomplished over a 5-10 year period. (Application, Section 2.6,
page 2.6-24).
The only other empirical evidence concerning the exhumation of Unit 1 was provided by
Devin Moo se, of Shaw Environmenta l, who explained that the full exhumat ion process would
take
³on
the order of about 10 years´
to complete. (Tr. 1/25/07, pp. 321-23) (emphasis added).
Moreover, the Host Agreement negotiated between the City and RWD provides at Section 7.4
that the exhumation is to be
³commenced
and completed within a commercially reasonable
time,´ wit h the Cit y to bear the fir st $850,000.00 of the cost and the Operator to bear the balance
of the cost. This cost apportionment was based on the parti¶ esclear and unequivocal agreement
that exhumat ion wou ld be per for med i
commercially
n a
reasonable
timeframe. Moreover, the
Host Agreement clearly provides that the t iming, sequence, and manner o f exhumat ion will be
determined by the IEPA
, and by the mutual agreement of the Cit y and t he Operator.
Public clamor for accelerat ion of the exhumat ion timeframe, u naccompanied by any
scientific or professio nal analysis establishing the necessit y, or even the feasibilit y, of
performing such accelerated exhumation fails to establish that the acceleration is necessary to
protect the public health, safety and welfare. The timeframe proposed in Condition 13 was not
established as a result of a risk assessment, feasibility study, or health and safety analysis, and
did not arise pursuant to any investigation into the nature, qualit y, and quant it y of waste in Unit
1. Notably, the expert for Concerned Citizens of Ogle Coun³tCCy ( OC´), Mr. Norris, testified
that he did not even believe exhumation of Unit 1 was necessarily requi
at
red
all
to protect
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20
70530357v1 871956
public safety. (Tr. 1/25/07 at 324-26). In fact, he specifically urged the Council to consider
not
exhuming Unit 1. (
Id.
).
During t he meet ing t hat led up to passage of Reso lution R07-10 and t he imposit io n of the
Special Condit io ns, the Attorney for the Cit y Council explained that it could be assumed that
between two and two and a half million yards would need to be exhumed. (Tr. 4/11/07 at 87).
He opined that,
³It
would be difficult to certainly complete it within six y´
earsand
not ed that
³test
imony at t he hear ing indicated that t he applicant, the operator believed that a 10 year per iod
was the appropriate period over which this waste could be exhumed and later then redisposed.´
(Tr. 4/11/07 at 85) (emphasis added).
Articulating a sentiment that surfaces repeatedly during the course of the Council¶s
meetings, Council Member Hayden declared,
³Well
our paid
consulta nt and the paiheard ing
Officer said six years, so why don¶t we give them six.
´
(Tr. 4/11/07 at 88) (emphasis added).
Member Berg immediately responded,
³I
like that idea, six years.
´
Id.
( )
When the City Council met on May 8, 2007 to discuss the Motion for Reconsideration,
Council Member Berg appeared to have second thoughts, and expressed concern that forcing a
rushed exhumat ion could lead t o problems, not ing t³hwhat en you start putting arbitrar y t ime
per iods on things
±
there¶s not one person out here t hat has a clue how long t his is go ing .to take
. .We¶re sitt ing here trying t o make a decis io n that frankly we
¶t
hdonave the k now ledge to make
as far as how long i¶s t going to take´
(Tr. 5/8/07 at 23) (emphasis added).
Berg further not ed that
³when
you start hurrying people on things t¶hs atwhen things
happen when you put those arbitrary t ime lines, deadlineson
people.´ (Tr. 5/8/07 at 24-25)
(emphasis added). Council Member Hayes echoed that concern, observing that:
I don¶t have the expertise to make this decisio n, but the fact of the
matter is we don¶t need it to be done any faster to make it more
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21
70530357v1 871956
risky to the health, safety and welfare of the people. .
¶
. m
.I sure
that the Applicant and the operator would like to have it out of
there and into a land facility as soon and as practically financially
as possible. . . .[W]ha¶s t in t he bes t interes t of th e c om munit y i s to
get it out of there
±
like you said, get it out of there as soon as we
can but don¶t race to get it out of there to where we
¶t
gecant the
±
where the blowing factor is connected, the smell is an issue, and
the safety is issue and the inspections are impractical. . . So in my
opinion we have to
±
we can¶t restrict it, shorten up the time any
more or anything. We have to allow some flexibility, because no
one knows what we
¶re
getting into when we get there .
(Tr. 5/8/07 at 27-28) (emphasis added).
It was pointed out during the Council
¶s
deliberations that the Host Agreement calls for
exhumation to be completed within a commercially reasonable time, as did the Application. The
Council Members, however, were clearly uncomfortable wit h the concept of something being
³commercially
reasonable,´ calling that concept
³too
big of a gray area´ and an
³undefined
standard.´ (Tr. 5/8/07 at 29, 30).
Of even greater significance is the fact that this Co ndit ion seeks t o wrest fro m the IEPA
its regulatory authorit y to determine the per mit condit io ns under which exhumation and
relocation o f the waste will occur . Thus, the C ondit ion is not only inconsistent with
¶st
he B oard
regulat ions, it is in d irect contravention of the regulat ions. It is the IEPA, not the Cit y Council,
that should decide the methodology and t imeframe for the exhumat ion. Council Members Berg
and Hayes were right to have second thoughts. The Council clearly lacks the expertise to make
this t ype of determination.
In summary, requiring completion of the full exhumation process within the compressed
timeframe dictated by Condit io n 13 would drastically increase the cost of operations, and
severely undermine the Operator¶s ability to go forward with the proposed expansion.
Moreover, it contravenes the clear and unequivocal agreement of the parties on this specific issue
as reflected in the Host Agreement, which, again, was submitt ed as part of the Applicat ion in this
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22
70530357v1 871956
case. It is also in direct conflict with the Board¶s regulations, inasmuch as it seeks to vest the
Cit y Council with authorit y to determine the per mit condit ions for t he exhumation. Finally, this
condition is unsupported by evidence in the record, and is not required to meet Criterion (ii).
Clearly, Special Condit io n 13 shou ld, and must, be deleted.
3.
Conditions 22 and 23
(imposing expanded berming requirements) is not necessary
to accomplish the purposes of the Act.
Condit ion 22 requires that:
The plan of operations shall include the construction of operational screening
berms of between six (6) and eight (8) feet in height along the Southern edge and
partially along the East and West edges of operating cells to help to block the
operations fro m view fro m Cresto n Road as well as help conta in litt er and reduce
noise impacts. The Operator shall propose, and the City Manager shall consider
for approval, the placement and limits of the o perational berms pr ior to ea¶ch
s cell
develop ment. Final approval must be o bta ined prior to new cell construction.
The City Manager shall consider the height of the active face, the distance from
the site boundary, and the presence of other visual barriers (such as Unit 2) and
the effect iveness of other litt er and no ise control strategies (such as litt er fences
and permanent perimeter berms) in making its determination.
(Resolution R07-10, Attachment A, ¶ 22).
Condition 23 requires:
Per imeter berms shall be built in advance o f the cells in o rder to screen operations
to a reasonable extent. It is recommended to require the berms to be built at least
500 feet in advance of the Ea sternmost edge of the cell being constructed. By wa y
of example, prior to complet ion o f Cell
¶s
3liner, the Southern berm a long Creston
Road shall be constructed fro m E 4,200 to E 6,500, which extends approximatel y
600 feet East o f the cell. The vegetation shall be established (with at least a one-
year growing period) prior to waste being placed within 400 feet of a cell with
active waste placement. The berm shall be at least 14 feet in height, placed
between the waste footprint and Creston Road, and located between E 4,500 and
E 7,500.
(Resolution R07-10, Attachment A, ¶ 23).
As a thresho ld matter, Condition 22 vests excessive, arbitrary discretion in the Cit y
Manager to decide berming requirements on
ad
an
hoc
basis, creating the potential for disruptio n
of operations at the site. In addit ion, Condit ions 22 and 23 call for extended berm heights and
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23
70530357v1 871956
placements for bot h the perimeter berm, which must be fourteen (14) feet high according to
Condition 23, and for the operational screening berms, which must be six (6) to eight (8) feet
high according t o Condit ion 22. Inasmuch as Co ndit ion 23 requires a fourteen (14) foot tall
perimeter berm, it is unnecessarily duplicative and redundant to also require the construction of
six (6) to eight (8) foot tall operational screening berms inside the facilit y.
The Administrative Code provides t hat a facilit y located within 500 feet of a township or
county road or state or interstate highway shall have its operations screened from view by a
barrier no less than 8 feet in height. (Title 35, Section 811.302(c)). In keeping with this, the
Applicant specifically proposed to screen the facili¶ts y operations from view along South
Mulford Road, East Creston Road, South Locus Road, and Illinois Route 38 by a vegetated
earthen berm or fence with a total height of not less than 8 feet. (Application , Table 2.1-1(L/M).
Yet here, without any basis in the record, t he Council seeks to require t hat the per imeter ber m be
fourteen (14) feet high, or seventy-five percent taller than the law requires. This mandate is
excessive, particularly given the fact that the landfill is located in an agricultural area consist ing
primarily of fields of corn and soybeans.
Moreover, testimony by witnesses Shaw
Environmental and Chris Lannert at the hearing established that the proposed berms were
carefully considered by the Cit y in for mulat ing the Applicat ion.
The engineering challenges and additional costs associated with these additional berm
requirements would have a serious, deleterious effect on the econo mic feasibilit y of the project,
while offering no addit ional benefit to the public health, safet y and welfare. Increasing t he ber m
height would necessarily create a much larger base for the berm, not o nly for engineering reasons
but also because the berm must be landscaped and maintained, and worker safety concerns
would limit the degree o f permissible slope. Thus, a higher berm consumes a substant ial amou nt
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24
70530357v1 871956
of footprint area, making that area unavailable for waste disposal. As a result, the additional
berming requir ement contributes t o making the project financially and technically impracticable
and infeasible, and is inconsistent with t he t erms of the Host Agreement.
The discussio n o f the Cit y Council members when t hey met o n May 14, 2007 t o
reconsider the condit ions are illuminat ing, and shed light on the motive behind these condit ions.
At that meeting, Condition 22 only narrowly survived, by a vote of 4 to 3. Council Member
Hollo nbeck observed that the active faces are so high sh¶e t bdielidneve an operational screening
berm, no matter what its height, would do anything to obstruct the view of operations. (Tr.
5/8/07 at 36). She further noted that she had taken another look at the pictures provided by
expert witness Lannert, and that with respect to those pictures:
if you look back at those it di¶dnt seem to me that an operational
berm wou ld do much, so I confess I hadn¶t done that when we
were loo king at special condit io. nJust
s the topography is such that
either t he ro llingness o f the site or whatever you can see t his onsit e
tower really easily but you can¶t really see the operational
±
the
±
active face . So that was my opinion on
±
after rereading and
loo king at t heir Ite m 6, Special Condit io n 22 I would be inclined to
delete i.t
(Tr. 5/8/07 at 36-37) (emphasis added).
The transcript of the May 8, 2007 Council meeting also reveals that Council Members
erroneously believed that grant ing the M¶ots ireonquest concerning Special Condit io n 22 and 23
would leave the landfill with no berms whatsoever. Council Member Hayden stated
³they
say
it¶s tactically and financially impractical to construct a 14-foot berm. If we eliminate bot h of
these we either have a zero foot
±
no berm or 14-foot high, there¶s nothing suggested in
between?
´
(Tr. 5/8/07 at 35). The Council¶s attorney, Mr. Moran, replied,
³Nothing
has been
suggested in between by what
¶s
indicated here, that
¶s
correct.
´
(
Id.
).
However, as to Special Condition 23, Ms. Hollonbeck then responded that:
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70530357v1 871956
Mr. Lannert does propose a berm all the way around the perimeter
and it would mo ve alo ng w ith t he construction of the new cells, but
it was only 8 to 10 feet tall, not 14. . . So th± e t he mot ion to
consider
±
to reconsider didn¶t say go back to 8 to 10 feet, it just
said 14 feet is technically and financially impractical. So I don
¶t
know what we do about that.
(Tr. 5/8/07 at 37).
Mr. Berg opined that the operational berm was
³more
of a punitive measure
to th e
operator than it is an operational advantage to anybody. It
¶s
saying you have done a bad job,
we¶re going to make you put another berm in.´ (Tr. 5/8/07 at 38) (emphasis added). Member
Hollonbeck agreed. (
Id.
). After some discussio n, Attorney Moran then sugges³ted,
Even t hough
the motion hasn¶t specifically requested relief other than the suggestion that the 14-foot berm be
simply deleted, that requirement, you could certainly consider based upon the contents of the
record of mod ifying t he condit ion to reflect what you believe to be t he appropr iate e vide nce
presented and what the evidence would support, and it may be that 8 to 10-foot berm as set out in
the report that Mr. Lannert did.
´
(Tr. 5/8/07 at 39). Ms. Hollonbeck pointed out the testimony
of Lannert concerning the proposed 8 to 10 foot berm, and suggested that the Council approve
that berm height. (
Id.
at 40). She opined again that the proposed 14 foot berm had been intended
merely as a punitive measure. (
Id
. at 41).
Council Member Eckardt then declare³d,
I think the condit io ns were put in there because
of previous per for mance an
I
d
think that
¶
s part of what this is all about, and I think for us to
drop
any
of those would be a big mistake
´
Id
( . at 42) (emphasis added). When others tried to
determine whether there was any evidence in the record to support the heightened berm
requirements, it was observed t hat it was t he Counci¶s conl sulta nt who talked about the so-called
operational berms, and Attorney Moran then observed
³I
don¶t recall if that was specifically
identified by one of the witnesses in their testimony or referred to.
´
(
Id
. at 42). He went on to
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26
70530357v1 871956
confirm that it was the Counci¶s l hired consultant who came up with the idea for a 14 foot
per imeter berm.
Id.
( ).
When Council Member Hayden asked Attorney Moran whether there was any evidence
in the record to support the 14-foot requirement, Moran responded that he would have to
³go
back and look through the record. Frankly, I dont rec¶ all specifically that number being used
either in the applicat ion o r the testimony, alt hough
¶t
I scanay definit ively that
¶s
it not someplace
in the record.´ (
Id
. at 47). He then opined³
, Obviously the consultant determined that was an
appropriate heigh«t [and] they obviously felt on some basis that the 14 feet was appropriate, but
I can¶t point to you a specific part of record where we see that 14 fee´ t(.
Id
. at 47-48).
Ult imately, when it came t ime t o vote on the perimeter berm, Council Member Hayden
declared that he was voting to affirm the Special Condit¶ions requirement of a 14 foot berm,
explaining,
³I
make that vote because of the inconsistencies in the record and
I have to go with
the experts that I hired
(
Id
.
´at
52.) (emphasis added). The rest of the Council Members
followed suit in voting to affirm the Special Condition.
Rather than relying on the evidence in the record, the Council members appear to be
mot ivated by a desire to be punitive an³d hold [RWD¶s] feet to the fire´
, and by an unjustified
reliance on t he o pinio n o f the Coun¶cis l³paid´ consultant. As Council Member Hayden stated at
one point,
³I
listened to the consultant, I think he
¶s
smarter than I am
«´
(Tr. 4/11/07 at 91).
Moreover, at least one Council Member appeared to believe the consultant may have been
influenced by a desire to be punitive as well, as illustrated in the following colloquy:
MR. HAYDEN:
Where did the experts get that information
from when they came up with the conditions, they knew it had to
meet the record?
MS. HOLLONBECK:
I guess I
¶m
going to go along with
Dennis¶ analysis, maybe it was just a punit ive measure to put those
Electronic Filing, Received, Clerk's Office, August 1, 2007
27
70530357v1 871956
operational berms in, because it wasn
¶t
part of Mr. Lannert¶s
presentation.
(Tr. 5/8/07 at 41) (emphasis added).
The transcripts make clear that there was a determined attempt to use RWD¶s past
operational shortcomings as a whipping bo y to just ify the imposit io n of condit ions entirely
unrelated to those shortcomings o r vio lat ions, and this is a prime e xample of that effort.
Because Conditions 22 and 23 enjoy absolutely no support in the record, and offer no
addit ional benefit to t he public healt h, safet y, and welfare, they shou ld be deleted.
4.
Condition 26
(requiring the Operator to pay the City
¶
s costs associated with the
City
¶
s review of plans and permit applications) is not necessary to accomplish the
purposes of the Act.
Condition 26 requires:
The City Manager, and its legal and technical consultants, shall have the right to
be invo lved in the per mitt ing for the hor izonta l and vert ical expansio n of the
Rochelle Municipal Landfill. As part of this involvement, the City Manager and
its consultants may attend meetings between the Operator and its consultants and
the IEPA. The City Manager and its consultants may also review and comment
on the Operator
¶s
applications (provided such technical review and comment is
conducted within 30 days of receipt of the informat ion) prior to t he Ope¶rators
submissio n o f the applicat ions to the IEPA. The technical review co mments shall
be incorporated into the applications or addressed to the satisfaction of the Cit y
Manager.
The Operator agrees to reimburse the City for reasonable costs of its
consultants to review and comment on the Operator
¶
s applications and
submissions
.
(Resolution R07-10, Attachment A) (emphasis added).
C on dit ion 26requires the Operator to pay t he Ci¶s tcyosts of o versight. The Assessment
of costs to a particular party is hardly necessary to establish that the facility is so designed,
located, and proposed to be operated that public health, safety and welfare will be protected, and,
as such, it is not necessary to accomplish the purposes of the Act with respect to Criterion (ii),
the alleged basis for this Condition. Moreover, the Coun¶s cilattempt to impose these costs on
the Operator is manifest ly unfair, inasmuch as the Cit y previou sly negot iated the terms which it
Electronic Filing, Received, Clerk's Office, August 1, 2007
28
70530357v1 871956
felt shou ld apply to t he issue o f Cit y review and oversight; those terms are memor ialized in the
Host Agreement. That Agreement provides that the City shall have the opportunity to review all
plans and permit applications prior to their being submitted, but imposed no obligation on RWD
to reimburse the City for costs incurred in doing so. Moreover, there is simply no basis in the
record for imposing a requirement that the Operator pay the costs o f the oversight the Cit y
wishes t o exercise, and this condit io n is quite simply an att empt to alter the financial t erms o f the
A g re em en t.
Condition 26 is financially burdensome, impracticable, redundant and unnecessarily
duplicat ive, and runs direct ly counter to the Host Agreement, which the Cit y previously
negot iated and expressly inc luded as part of its Applicat ion. Most importantly, this blatant cost-
shifting maneuver is not necessary for public safety, and so is not required to accomplish the
purposes of the Act with respect to Criterion ( ii), as alleged by the Cit y Council.
5
.
Condition 28
(mandating that the Operator incorporate the City Manager
¶
s
comments into the Operator
¶
s Groundwater Impact Assessment prior to submitting
the GIA as a permit application) is not necessary to comply with Criterion (ii) and
so is not necessary to achieve the purposes of the Act.
Condit ion 28 provides that:
The operator shall submit the groundwater impact assessment (GIA) planned to
be submitt ed to t he IEPA as a permit application to t he Cit y Manager for review.
The Cit y Manager and its consultants may provide the Operator comments
(within 30 days o f receipt of t he infor mation) that must be incorporated o r
addressed prior to submitting the GIA to the IEPA as a permit application.
(Resolution R07-10, Attachment A, ¶ 28).
Interestingly enough, the Host Agreement provides that to the extent the Operator must
file
³any
state or federal Supplementa l Permits , Significant Modificat ion Permits, Renewa l
Permits, special waste stream permits, adjusted standards, variances, and other permits or
authorizat ion«necessary or appropriate for the operations, development, expansion, or closure
Electronic Filing, Received, Clerk's Office, August 1, 2007
29
70530357v1 871956
of the landfil´
l the Cit y
³will
cooperate with the Operator in all such applicat ions or petit ions
filed by the Operato´
r. (Host Agreement at 3.13). The Host Agreement further provides t hat the
Operator agrees to provide the City with reasonable notice prior to filing such applications, and
that t he Operator will not seek any permit, variance or standard t hat will have a material adverse
effect on t he City wit hout t he Ci¶s tpry ior writt en approval.
Id.
().
In contrast with the cooperative relationship described in the Host Agreement, which was
the end-result of extensive, previous negotiations between the parties, Special Condition 28
would drastically alter that relationship, and would essent ially vest the Cit y wit h carte blanche,
unilateral authorit y to alter the content of any GIA permit filed by the Operator. This Special
Condit ion would undermine the coo perative arrangement contemplated by the Host Agreement,
and is clearly not necessary to ensure the prot ection o f public healt h, safet y or welfare. As not ed
above, relevant provisions of the Host Agreement, which was included as a part of the Ci¶sty
Application, more than suffice in this regard. This Condition is therefore not necessary to
accomplish the purposes of the Act, and should be deleted.
5.
Conditions 33 and 34 (imposing the cost of additional Mulford Road improvements)
are not necessary to accomplish the purposes of the Act as to Criterion (vi).
Condit ion 33 provides that:
The fo llow ing roadway improvement shall be made to Mulford Road, at the
expense of t he Operator, prior to acceptance o f waste within t he expa nded facilit y
waste footprint:
The reconstruction of Mulford Road between Route 38 and the
exist ing landfill entrance shall be designed to a rural standard w it h
a dust free, all weather surface, provide a design weight limit of
80,000 pounds and shall be at least two lanes wide.
(Resolution 07-10, Attachment A, ¶ 33).
Condition 34, as amended by Resolution R07-18
, requires:
Electronic Filing, Received, Clerk's Office, August 1, 2007
30
70530357v1 871956
The improvement to Mulford Road as described in special
condit ion 33 above shall be completed fro m the exist ing landfill
entrance to Creston Road, no later than the date on which the
proposed new entrance for the expansio n is built and completed as
required in Special Condition 16. The Operator shall pay all costs
of said improvements to the new landfill entrance , and a portion of
the cost o f the improvements from the new landfill entrance to
Creston road proportionate to the ant icipated traffic attributable to
the expanded facility, as determined by a traffic study.
(Resolution R07-18).
Traffic expert Werthmann t estified t hat most of t he traffic that can be expected to use t he
landfill is already using it, since the expansion is simply a continuation of existing operations.
(Tr. 1/23/07 at 23-24, 29, 30-31). Werthmann¶s estimates were extremely cautious, and although
the landfill expansion is expected to eventually process as much 1,000 tons of waste per day,
Werthmann used a substant ially higher figu±
re 1500 tons per day
±
in his calculations. (See Tr.
1/23/07 at 29). Werthmann¶s studies showed that the increased volume of traffic on Mulford
Road would be
³not
significant by any means´
(Tr. 1/23/07 at 34-35) (emphasis added). The
Hearing Officer also noted that the evidence presented at the hearing showed
³the
that major it y
of the traffic generated by the proposed expansio n is already on the roadway syste m. T here will
be little new traffic generated by the expansion´ (Hearing Officer
¶s
Findings of Fact,
Conclusions of Law, and Recommendations at 31) (emphasis added).
Werthmann testified concerning the existing plans to improve Mulford Road to
accommodate transfer trailers, to reconstruct the road as a two-lane road with an 80,000 pound
weight limit. (Tr. 1/23/07 at p. 21). The Hearing Of¶s fFiicerndings o f Fact and Conclusio ns o f
Law reflect that the sole evidence concerning Criterion (vi) was presented by Werthmann.
(Hearing Officer
¶s
Findings of Fact and Conclusions of Law, at 28-34).
An examinat ion of the evidence reveals that the proposals of Special Condit ion 33 are
largely duplicative of upgrades to Mulford Road which are already proposed for this section of
Electronic Filing, Received, Clerk's Office, August 1, 2007
31
70530357v1 871956
road, which will be the primary route to and from the landfill. (
See
Tr. 1/23/07 at 21).
Werthmann test ified that 80% of the landfill traffic would use this route. (Tr. 1/23/07 at 27;
PowerPoint Slide 14). Nevertheless, despite testimony that the increase in traffic wou³lnd otbe
significant by any means´
, Condition 33 requires that the Operator bear t
full
he cost of the road
improvements to the Mulford Road upgrades, and also adds a requirement that the road
improvements must be co mpleted
prior to acceptance of any waste within the expanded facility
waste footprint
.
Condit ion 34 then requires that, in addit ion to the upgrades mandated by Condit ion 33,
the Operator must also provide the same upgrades to Mulford Road heading
south
from the
landfill entrance to Creston Road. There is, however, absolutely no evidence supporting the
need for this expansion of the Mulford Road project, particularly in light of the fact that inbound
transfer trucks can not even use the southbound-to-Creston route, since it is not rated for 80,000
pound trucks. (Tr. 1/23/07 at 170). Among the unusual aspects of this requirement is the fact
that t he C it y Council here seeks to impose a requir ement that RWD pay the costs of improvi
a
ng
township road
.
In addition, the area encompassed in Special Condition 34 is one that is already targeted
for growth as a commercial/industr ial area, and as Council Member Hollo nbeck pointed out, the
new landfill site entrance
³won¶t
be built for several years. . .and by that time there could be
additional industry using Creston Road and Mulford Road.
´
(Tr. 5/8/07 at 70). Council Member
Hayden observed,
³The
person that benefits from the construction of the road, probably across
the street is zoned I2, t hey¶re t he people t hat probably will benefit fro m
´
i(t
Id
. at 72) (emphasis
added). Warehouses and industrial sites generate far more traffic per acre than a landfill, and it
Electronic Filing, Received, Clerk's Office, August 1, 2007
32
70530357v1 871956
is clearly inequita ble t o force t he Operator to make road improvements before it even opens the
new entrance, and to bear the cost of road improvements for the benefit of ot her entit ies.
Nevertheless, the members of the Council were, once again, inclined to defer to their
³paid´
consultants and ignore the evidence. As Mr. Berg declare³d,
I think our City staff gave us
a very good suggestion here and
¶I
m inclined to go with what our Cit y staff told us,
¶s
thmyat
opinion.
´
(Tr. 5/8/07 at 76). Ms. Hollonbeck quickly agreed, and Mr. Berg then added, That
¶s
what we pay these people for is to give us the sound advice, that
¶s
my opinion.
´
(Tr. 5/8/07 at
76-77). In the view o f the Council Member s, it appears t hat t he actual evidence contained in t he
record was irrelevant, or at best superfluous, and all they really needed to decide the siting
application was the unsubstantiated opinion of their hired experts.
Because the evidence does not show that the mandated upgrades to Mulford Road, whic h
are required to be made at the Operator¶s expense, are necessary to comply with Criterion (vi),
they do not further the purposes of the Act and should therefore be deleted.
IV.
CONCLUSION
The Applicat ion submitt ed for t he proposed expansio n of the Rochelle Municipa l
Landfill was exhaust ively thoro ugh in every detail, and reveals that the expansio n meets ever y
one of the Section 39.2 sit ing criteria. As landfill sites go, this is an exceptionally good choice
due to its favorable geolog y and overall locat ion.
The challenged Special Condit ions were clearly not necessary to accomplish the purposes
of Sect ion 39.2 o f the I llino is Environmenta l Prot ection Ac³the
t (Act´), and, as previously
noted, were imposed largely to
³minimize
fears´ of a citizen group rather than to meet the
requirements of the Act. Even more troubling are the many comments by Council Members
during their deliberations on the Motion to Reconsider, in which it became apparent that they
were , at least in part, imposing Special Conditions as a way to punish the Operator for perceived
Electronic Filing, Received, Clerk's Office, August 1, 2007
33
70530357v1 871956
shortcomings in the past, and to n³ow
hold its feet to the f´
ireAl
. though reasonable minds may
differ with respect to the character of the operator¶s record and the significance of past
violations, it is impermissible to cast the record out over the waters as a vast, all-encompassing
net to justify every manner of condition , from imposing the cost of unrelated road improvements
to raising the requirement for the height of the landfill
¶s
berms.
Another disturbing aspect of this case is the decision m¶aks erattempt to unilaterally
reallocate previously agreed-upon costs under the guise of special conditions. Never in the
history of Section 39.2 has the PCB held that special conditions can be used to allocate or shift
costs. Rather, the appropriate place for determining cost allocation is in a Host Agreement.
Section 39.2 recognizes the significance of the role o f a Host Agreement, and accordingly
requires that where there is an exist ing Host Agreement, that Agreement must be included as part
of the record of the proceeding. Moreover, it is no accident that t he statutory requirement for
inclusio n o f the Host Agreement in the record o f proceedings appears in log ical sequence wit hin
the S it ing St atute, in c lose proximit y to the provisio n concer ning imposit ion o f Specia l
Condit ions.
In summary, the Special Conditions imposed by the Rochelle City Council were clearly
not imposed to further the purposes of the Act, and are inconsi±
santend t in at least one instance
in direct contravention wit±
h the regulations promulgated by this Honorable Board. Moreover,
there is no support in the underlying record for these condit io ns, the overwhelming major it y of
which run contrary to the terms of the Host Agreement and, in many cases, are merely being
used to unilaterally shift Cit y costs onto RWD after the parties have already negotiated a
mutually acceptable agreement for the operation of t he landfill s ite.
Electronic Filing, Received, Clerk's Office, August 1, 2007
34
70530357v1 871956
For all of the above-referenced reasons, this Board should order the challenged Special
Condit ions deleted.
Dated:
August 1, 2007
Respectfully submitted,
ROCHELLE WASTE DISPOSAL
By:_s/ Charles F. Helsten
Charles F. Helsten
One of Its Attorneys
Charles F. Helsten
Richard S. Porter
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100% recycled paper products.
Electronic Filing, Received, Clerk's Office, August 1, 2007
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