PCB 03-43
5T~TE
OF ILUNO~
(Third-Party P
1~flV~
Control Board
control Facility
ltmg
Appeal)
V.
EFFINGHAM
COUNTY BOARD
and
SU1TER SANITATION SERVICES,
Respondents.
NOTICE OF FILING
)
)
)
)
)
PCB
03-52
)
(Third-Party Pollution
Control Facility
)
Siting Appeal)
AND
PROOF OF SERVICE
To:
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center
Suite 11-500
Chicago, IL 60601-3218
Christine Zeman
Hodge, Dwyer & Zeman
P.O.
Box
5776
Springfield, IL
62705-5776
fax:
217/523-4948
Edward C. Deters
Effmgham County State’s Attorney
101 North Fort, Suite 400
Effingham, IL 62401
Charlie Northrup
Attorney for Sutter Sanitation Services
Sorling, Northrup, Hanna, Cullen & Cochran
Illinois Bldg.,
Suite 800
P.O.
Box 5131
Springfield, IL 62705
PLEASE
TAKE NOTICE that on the
/
ó2/~(Øay
ofJanuary, 2003, we sent via
Federal
Express to the Clerk of the Pollution
Control Board the original and nine copies ofthe
RESPONSE BRIEF OF PETITIONER LANDFILL33, LTD. for filing
in the above entitled
cause.
The
undersigned certifies
that
a
true
and
correct
copy
of the RESPONSE
BRIEF
OF
PETITIONER LANDFILL 33, LTD. was served upon each of the
above-identified
individuals via
hand delivery (or, as to Edward
C. Deters, via Federal Express, by enclosing the same
in
envelopes
properly addressed, with postage fully prepaid, and by
depositing said
envelopes before 5:30
p.m.
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD~T
-~
~‘
CLERKb~
~
1 7
Z~U3
LANDFILL 33, LTD.,
)
)
Petitioner,
v.
)
~
)
EFFINGHAM COUNTY BOARD and
)
)
SUYFER SANITATION SERVICES,
)
)
Respondents.
)
STOCK &
CO.,
Petitioner,
16
in
a FedEx
drop box,
on
the
/t~
day of January,
2003,
for delivery)
on
the
/~4L
day
of
January, 2003.
Hedinger Law Office
1225 S.
Sixth St.
-
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
THIS
FILING IS SUBMIT1’ED ON
RECYCLED PAPER.
17
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
CLJAK’5
~
LANDFILL 33, LTD.,
)
~7
2r~rr~
)
3
r\
4
Petitioner,
)
STATE OF ~LL1NO~S
)
PCB 03-43
pol1~~tio~i
Control floard
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD and
)
Control Facility
)
Siting Appeal)
SUTFER SANITATION SERVICES,
)
)
Respondents.
)
STOCK & CO.,
)
Petitioner,
)
)
)
PCB 03-52
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD
and
)
Control Facility
)
Siting Appeal)
SUTI’ER SANITATION SERVICES,
)
)
Respondents.
)
RESPONSE BRIEF
OF PETITIONER LANDFILL
33, LTD.
NOW COMES Petitioner, LANDFILL 33, LTD.
(hereinafter “Landfill 33”), through its
undersigned attorney, and for its response briefin this landfill siting review case, states as follows:
Response to Motions to Strike
In their
closing briefs
filed with this Board, both
Sutter Sanitation Services (hereinafter
“Sutter Sanitation”) and the Effingham County Board (hereinafter “County Board”) asked that
this Board strike from Landfill 33’s closing brief any discussion offailure of the County Board to
provide fundamentally fair proceedings.
According to Sutter Sanitation and the County Board,
justification for
this
harsh penalty was that
Landfill 33 had not pled with detail all
of the facts and
circumstancessupporting the fundamental fairness challenge in Landfill 33’s petition for review
filed with this Board.
The motions to strike ofSutter Sanitation and the County Board
are themselves untimely,
and improper, and should be stricken.
Pursuant to Section
101.506 ofthis Board’s procedural rules, 35 Ill. Adm.
COde 101.506,
any motion attacking the sufficiency of a pleading filed with this Board must be filedwithin 30
days ofservice ofthe pleading.
Obviously the purpose ofthis rule is to provide both the
opportunity to closely consider the basis for a motion attacking the
sufficiency of the pleading, and
to allow ample time to replead, in the interests ofjustice, if the challenge is one that can be cured
through a new pleading.
Landfill 33 filed its petition before this Board on October 8, 2002.
This Board reviewed
that initial petition, and ordered Landfill 33 to file an amended petition, setting forth additional facts
to establish that Landfill 33
is a proper petitioner in this proceeding.
Landfill 33 filed its amended petition on October 17, 2002.
Thereafter,
at least two
telephonic status conference calls were conducted by the hearing officer, and a hearing was held by
this Board on December 19, 2002.
At no time during any of those conference calls or during the
hearingdid either Sutter Sanitation or the County Board raise any objection or complaint
about the
sufficiency ofLandfill 33’s amended petition.
Similarly, neither Sutter Sanitation northe County
Board has ever filed any written pleading with this Board or the hearing officer challenging or
objecting in any way to the sufficiency ofLandfill 33’s amended petition, until their closing
argument, filed after the hearing and at the ~
hour, on January
9, 2003.
Clearly the motions directed to Landfill 33’s complaint were timed so as to prejudice
Landfill 33, and to deprive this Board of the opportunity to consider the positions of the parties with
respect to the motions.
The motions were made some 75 days after the amended petition was filed,
and neither Sutter Sanitation nor the County Board have tendered any explanation for the delay.
Moreover, Sutter Sanitation
and the County Board are wrong in their interpretation of this
Board’s procedural rules.
Section 107.208 of this Board’s procedural rules, 35 Ill. Adm. Code
107.208,
sets forth the petition content requirements for landfill siting review cases such as this.
That section, in pertinent part, requires “specification of the grounds for the appeal, including any
allegations for fundamental unfairness or any manner in which the decision as to particular criteria
is against the manifest weight of the evidence.”
2
Landfill 33 followed precisely the requirements of Section 107.208, and provided, in its
petition, the specification that both fundamental fairness and manifest weight of the evidence issues
were being raised.
Moreover, as required by Section 107.208, Landfill 33 provided identification of
the particular criteria which it claimed were decided by the County Board againstthe manifest
weight of the evidence.
To any extent Section 107.208 can be interpreted as requiring more, that
interpretation had not previously been made.
Sutter Sanitation and the County Board waited until
there was insufficient time to either meaningfully debate the meaning of Section 107.208, or to
allow Landfill 33 the opportunity to replead following that debate, if necessary.
Sutter Sanitation also claims that the fundamental fairness issues should be stricken for
failure ofLandfill 33 to have supplied Sutter Sanitation with all theories offundamental unfairness
in response to a discovery request.
Sutter Sanitation did not include a copy ofits discovery requests, orof Landfill 33’s
response, with its answer.
Hence, even if this were a legitimate issue, Sutter Sanitation has waived
it.
In addition, the discovery request relied upon by Sutter Sanitation did not obligate Landfill
33 to set forth its theories offundamental unfairness.
To the contrary, the discovery request merely
asked for identification ofthe facts relating to fundamental unfairness claims, and Landfill 33
truthfully and accurately stated that all such factsknown to it were included in the record.
Indeed,
to any extent Sutter Sanitation sought, through its discovery, any information beyond facts known
to Landfill 33 relevant to
issues pertaining to the siting appeal, clearly such discovery requests were
improper and beyond the scope of proper discovery, and Landfill 33 objected to the requests to that
extent.
Moreover,
again the timing of Sutter Sanitation’s motion is improper and supports the
striking ofits
motion.
Pursuant to
this Board’s procedural rule section 101.616,
“all
discovery
disputes will be handled by the assigned hearing officer.” 35 Ill. Adm. Code Section 101.616.
Despite that rule, Sutter Sanitation waited until after the hearing, until it filed its closing brief, to
3
raise its purported discovery dispute.
This is an improper attempt to circumvent this Board’s
procedural rules.
-
-
-
Further, if Sutter Sanitation had been sincere in its desire forthe information, and sincere in
claiming the right to that information, it should have sought hearing officer review prior to the
hearing, rather thanwaiting until the
11th
hour, at which time it could surprise Landfill 33 with its
motion.
No pre-hearing discovery motions were filed, and neither did Sutter Sanitation raise any
objection during status
conference calls or the hearing.
Sutter Sanitation’s motion also fails to
acknowledge that Landfill 33’s answer to the
discovery request was made subject to Landfill 33’s objection to that discovery request; Sutter
Sanitation has never sought the hearing officer’s review of that objection, and so has waived it at
this time.
Finally, even if there were any legitimacy to Sutter Sanitation’s argument, the proper remedy
is not to strike the allegations of the complaint.
Pursuant
to this Board’s rule 101.616(f), 35 Ill.
Adm. Code 101.616(f), sanctions for such matters are only available in the event ofa failure to
comply with “any order regarding discovery.”
Because Sutter Sanitation never raised these issues
previously with the Board or the hearingofficer, no order has been entered with which Landfill 33
is not in compliance.
Sanctions are therefore unavailable.
And, even if sanctions were somehow available, this Board’s Rule
101.800, 35 Ill. Adm.
Code Section 101.800, establishes a sliding scale, and the “death penalty” sanction ofthe striking
of pleadings is considerednot to be the first choice ofappropriate sanctions, but rather is
a last
-
choice.
Again, an appropriate sanction would be to order that the discovery request be responded
to, but Sutter Sanitation’s timing has precluded that as a possibility.
It is Sutter Sanitation, not
-
Landfill 33, which should bear the consequences ofthat.
-
-
4
Fundamental
Unfairness
Unavailable Transcript
-
In its opening brief, Stock and Co. (PCB 03-52) complained that it had sought the transcript
of proceedings from the County Board, but that transcript was never made available by the County
Board until long after the time came to file an appeal, let alone prior to the close ofthe public
comment period.
Obviously it would impossible
to “prove the negative” and identify every other
citizen who was prejudiced by the mysteriously missing transcript, but public comments filed with
this Board identify at least three otherpeople who complain ofthe situation (Bridie Knierim (P.C.
#1), Raleigh A. Wharton (P.C. #3), and
Susan K. Stock (P.C. #7)).
The missing transcript would
appearto be a facial violation of the County Board’s procedural obligations, and as such warrant
this Board’s reversal on that basis alone.
In responding to the issue, Sutter Sanitationbelligerently claimed that the prejudice of the
missing transcript somehow was Stock’s own fault (and no doubt the fault ofthe oth~er
citizens who
sought the transcript).
Curiously absent from Sutter Sanitation’s analysis, though, was any
explanation as to why it, rather than the County,
served as the caretaker for that transcript,
apparently throughout the entirety ofthe public comment period, and even after that.
Sutter
Sanitation’s initial briefbefore
this Board admits that the Effingham County Clerk told Stock “that
Effingham County did not have a copy ofthe transcript, but that he should contact Sutter’s
attorneys (PCB tr. 52).
However, at no time did Petitioner Stock make such a request (PCB tr.
52).”
(Sutter Sanitation brief, at 7).
What in the world was Sutter Sanitation doing with the official
transcript, at a time when the record was supposed to be available for public viewing, and in fact
wasn’t even complete yet?
This is no less fundamentally improper than would be, say, this Board
allowing a Petitioner to safeguard the record during the pendancy of a proceeding, or a circuit clerk
doing the same thingwith trial exhibits before the close ofa case.
5
That SutterSanitation would be made the County Board’s delegate custodian ofthe official
County record is outrageous, and a clear violation of the requirements that siting proceedings be
fundamentally fair.
A clean remand for new proceedings is required to rectify this situation.
Recycling
The minutes ofthe County Board’s September 16, 2002 meeting, at which the County
Board discussed and voted upon Sutter Sanitation’s siting proposal, reveal
that at least one County
Board member, C. Voelker, expressly voted in favor of Sutter Sanitation’s proposal because Sutter
Sanitation claimed it would also operate a recycling center, but not without the transfer station.
(C.432).
Somehow, curiously, Sutter Sanitation attempts to turn this record evidence in its own
favor, with the claim that this evidence reveals that the County Board had no pre-existing bias in
favor of Sutter Sanitation’s proposal.
Sutter Sanitation has completely missed the point.
The prejudice to Landfill 33 came not so
much because the County Board was biased in favor ofSutter Sanitation (in fact, one could say
Sutter Sanitation forced its facility on the County Board through its intimidating threats), but
rather
because Landfill 33 was not given the same and equal opportunity as others (including, ofcourse,
Sutter Sanitation itself, as well as one or more commenters) to address the recycling issue.
Landfill
33 was specifically told by the County Board Chairman not to worry, because the County Board
would not consider the recycling issue in deciding the merits ofSutter Sanitation’s application, and
rather than argue the point, Landfill 33 was pleased that the County Board would take that position.
Sutter Sanitation claims that this constitutes “waiver” ofthe recycling issue, and perhaps that
would be so, except for the fact, conveniently overlooked-hy-Sutter Sanitation, that the County
Board
~llc~
consider the recycling issue
in reaching its decision on Sutter Sanitation’s application!
Finally, Sutter Sanitation attempts to portray the County Board’s decision as constituting a
lone county board member concerning himself with recycling issues, while the others went a
different way.
Ofcourse, Nancy Deters, the most vocal proponent of Sutter Sanitation’s proposal,
felt that the issue
~
recycling, both for herself, for the County Board, and for everyone else
(except, ofcourse, Landfill 33) present at the hearing!
Moreover, the County Board did not include
6
a
transcription ofthe September 16 meetingwith the official record it has filed in this case, and so it
cannot be said, one way or another, as to whether only one, or more than one, of the Coi~nty
Board
members might have commented on the recycling issue.
The fact that the majority voted for this
facility on all criteria (and particularly the “need” criterion) is stark evidence that the County Board
was swayed by the one-sided recycling evidence.
The matter must be remanded to
allow Landfill 33 to place ofrecord the recycling
considerations it wished to raise during the hearing.1
Visits -by the County Board
At the hearing before this Board, it came out that the County Board had made one
trip to
Sutter Sanitation’s proposed facility in July, 2002, without providingnotice to any interested
citizens whomay have desired to accompany them.
Moreover, Sutter Sanitation has also admitted
that just prior to filing the application,
several County Board members came and visited the
“recycling center,” at which the transfer station is supposed to also operate, and got a red carpet
tour.
Curiously, though, Sutter Sanitation had nothing to say about these ex parte visits in its
closing brief.
Hence, there is little to respond to in this response.
However, Landfill 33 will point
out that, having had opportunity
to address the issue but not taking it, Sutter Sanitation should be
considered to havewaived any argument respecting this issue, and to have conceded the impropriety
of the site visits by the County Board.
-
-
Challenged
Criteria
The very first sentence of the “Criteria 1” discussion of Sutter Sanitation’s application for
siting approval says:
“The service area for the proposed transfer station is expected to include an
approximate 30 to 50 mile radius from the transfer station.” (C.14).
Although the application fails
to identify anticipated waste generation within that “service area,” Sutter Sanitation did identify
eight separate landfills, with disposal capacities ranging from 59,000 gate-cubic yards to over 30
1
To any extent SutterSanitation may claim public comment accomplished Landfill
33’s purpose, that comment
was submitted not under oath,
and
this Board itself has noted that such materials are
given far less weight than
record,
sworn evidence.
This “second class citizen” approach to Landfill
33’s evidence in no way sufficed
to rectify
the fundamental unfairness of having precluded Landfill 33 from making its case.
7
million gate cubic yards within or in close proximity to the “service
area.” (C.14; ~
~isi~C.17).
Based upon this information, Sutter Sanitation opined that “the regional waste disposal capacity
appears to be adequate to
accommodate refuse capacities -generated-in Effingham county and the
surrounding area in the near future,”
(C.15);
however, Sutter Sanitation stated that the “need” for
the facility hinged upon something else:
“the current dilemma exists in maintaining a viable out of
county waste disposal source
and
a method
to transfer county generated waste to one or more of
these facilities.”
(C.15).
As Landfill 33 noted, in both its presentation before the County Board and its opening brief
before this
Board, Sutter Sanitation’s approach does not constitute
a typical or-traditional “needs”
analysis. (C.206).
Although in its closing brief Sutter Sanitation disagreed (Sutter brief, at 18-19),
Sutter Sanitation never explains what about its analysis is typical or evenappropriate.
In fact, Sutter
Sanitation appears now to
have abandoned the “needs” analysis it made in its application, and
instead is attempting to modify its service area from that identified at C. 14 ofthe record, to one that
is exclusive to Effingham County.
The argument in its brief, in fact, virtually ignores
all but one of
the landfills located so as to provide capacity for this intended service area, and focusessolely upon
Landfill 33, and an asserted (and manufactured) ambiguity in the capacity ofthat landfill.
In doing
so, Sutter Sanitation confuses the burden ofproof before the County Board, by suggesting that
somehow Landfill 33 was remiss in not presenting its own full “needs” analysis, or providing
specific volumetric calculations of its available airspace as ofthe night ofthe public hearing.
(~
Sutter brief, at 18-19:
“of course, Mr.
Sheffer Landfill
33’s witness
failed to offer any
traditional
needs
analysis either,” and “Mr. Sheffer even admitted that he
had no evidence in the
record to support that Landfill 33 has twenty-nine years worth of capacity left (C.227)”).
Landfill 33, though, had no burden ofproofbefore the County Board; instead, the burden
-
was solely upon Sutter Sanitation, and if, as Sutter Sanitation claims, theexistence ofits proposed
facility hinged upon the specific, current capacity ofLandfill 33, then itwas incumbent upon Sutter
Sanitation, and not Landfill 33, to offer that proof.
And in fact, the unrebutted evidence supplied by
Landfill 33’s engineer, who was responsible for siting and permitting the Landfill 33 expansion,
8
was that there is twenty-nine years’
capacity at thefacility in its current permitted situation. (C.234-
C.235).
(In contrast, Mr.
Sheffer unambiguously informed Sutter Sanitation’s lawyer that he had
no responsibility for the expansion or permitting of the expansion ofLandfill 33, but that he had
relied upon information provided to him by Mr. Johnsrud).
Sutter Sanitation’s attempt
to prove its “needs” analysis through reference to Effingham
County’s
Solid Waste Management Plan and Landfill 33’s capacity was misplaced.
Again, doing
so modifies the service area from that disclosed and discussed by the application (“an approximate
30 to 50 mile radius from the transfer station”) to one inclusive only ofEffingham County, which
at the very least constitutes an amendment of Sutter Sanitation’s siting application.
To be sure, it is
the siting applicant, and no one else, who determines the proposed facility’s intended service area,
but it is equally clear that, once having identified a service area, that
is the service area the applicant
is stuck with.
Hence, although Sutter Sanitation could have limited its proposed service area to Effingham
County alone, it did not do so in its application, and its amendment, made at the last day ofpublic
comments following the hearing, came too late.
And while it is true that manifestly it is absurd to
place a transfer station out in the middle ofnowhere, except close to one ofthe region’s larger
waste facilities, Sutter Sanitation’s contention that this was the only point raised by Landfill 33
is
untrue.
Apparently Sutter Sanitation was not paying attention during Mr. Sheffer’s testimony,
when he utilized Sutter Sanitation’s own methodology to show that, even without the transfer
station, the eight facilities identified by Sutter Sanitation as available for the disposal capacity for the
service area are all easily withinthe range identified by Sutter Sanitation as a reasonable hauling
distance (30 to 50 miles).
(~
Landfill 33’s opening brief, at 10-11).
Moreover, for good measure,
Mr. Sheffer did exactly what Sutter Sanitation is now suggesting as necessary for its “needs” case,
and he hypothesized the non-existence ofLandfill 33--even then, Sutter Sanitation’s service area is
well-served by the other facilities identified by Sutter Sanitation as having available disposal
-
capacity for the service area, with the entire service area located within 50 miles of-one or more
landfills.
That Sutter Sanitation would claim that the “only argument offered at the hearing in
9
opposition to the demonstrated need by Sutter” concerned the life expectancy ofLandfill 33 is
completely baseless,
and sheer fantasy.
The long and the short of it is that Sutter Sanitation
admitted no
“need” exists for this
transfer station, but that it might be convenient for Sutter Sanitation’s own business purposes.
As
expressed in Landfill 33’s opening brief, though, convenience to the operator is not the standard by
which the first criterion is measured, but rather the criterion is only satisfied if the facility is
“necessary to accommodate the waste needs ofthe area it is intended to
serve.”
The circular
service area identified by Sutter Sanitation has many options available to it to fulfill its waste
disposal needs, and even if, for some reason, Landfill 33 were not considered to be a part ofthat
(although clearly the evidence would not support any such hypothesis), Sutter Sanitation’s transfer
station is unnecessary.
(It is notable, in fact, that although we know Sutter Sanitation intends to run
six to eights trucks a day through this transfer station facility, never does it identify the size of those
loads, or what impact those loads might have on the waste within the service area needing disposal).
As it did in its application, Sutter Sanitation lumps its consideration ofthe County’s Solid
Waste Management Plan with its discussion of the “need” criterion.
Ofcourse,
this is improper
since the service area extends far beyond the boundaries of Effingham County.
Moreover, Sutter
Sanitation must also meet the eighth siting criteria (establishing this facility as consistent with
Effingham County’s Solid Waste Management Plan),
and its novel approach to the issue fails to
accomplish that.
Again, “need” .is different than solid waste management plan consistency, and
even if through some stretch Sutter Sanitation were to have shown a “need” for its facility, that
does not, in
and of itself, prove that the facility is consistent with Effingham County’s Solid Waste
Management Plan.
And yet, that
is the very justification given by Sutter Sanitation.
The discussion
of this issue in
its initial brief again focuses upon the asserted imminent closure ofLandfill 33
(as
though 29 years’ capacity isn’t
enough) as a basis for Sutter
Sanitation’s proposed transfer station.
The County Solid Waste Management Plan, though, makes no such leap.
Sutter Sanitation’s plan consistency argument focuses upon a table in chapter 4 of the
Effingham County’s Planning document, which provided several alternatives to address solid waste
10
management.
One ofthose included as apossible waste management strategywas the siting ofa
waste
transferstation to export county waste to out-of-county landfills. (Page 4-8; see Sutter brief,
at 19).
Unfortunately, though, chapter 4 ofthe Planning document is, by its own terms, a
preliminary step ofthe planning process, in which alternatives are set forth:
“After the list of
potential waste management components for each county had been compiled and evaluated by the
respective county-level solid waste advisory committee, the next step in the planning process
involved assembling such components into ‘alternative waste management systems’.” (Planning
document, at 4-1).
After that step, chapter
5
provided for the evaluation ofthose alternatives:
“After the various program and facility options were assembled into three alternative waste
management systems, the next logical step in the planning process focused upon ‘an evaluation’ of
the relative benefits and limitations of each of the three alternative systems.” (Planning document, at
5-1).
Finally, chapter 6 contains the “Recommended Waste Management Plan,” following the
previous steps ofthe process:
“Following the development and evaluation ofindividual program
and facility options and the further evaluation of these options after assembly into alternative waste
management systems, the final step in the selection process was to choose the program and facility
options that would be included in the recommended waste management plan (Plan).” (Plan, at 6-1).
The recommended waste management plan for Effingham County supported continued disposal of
Effingham County waste at in-county and out-of-county landfills, as discussed in the
“Components” section of the planning document (see~page
3-25).
In short, Sutter Sanitation is
focusing upon components ofthe plan that were proposed but not adopted forEffingham County,
which instead adopted the proposals set forth at pages 6-41 to 6-42 of the Plan, and which
-
specifically chose to retain as the waste disposal method direct haul to Landfill 33
and othernearby
landfills. (6-41).
“The basic recommendation for landfill disposal ofEffingham County waste over
the 20 year planning period is to continue to use the two landfills discussed above i.e.,
Landfill 33
and E.R.C. Landfill in Coles County.”
(6-41).
Indeed, the Effingham County specific Plan called
for the development of~
new programs or facilities, and the plan update did not change that; Sutter
Sanitation’s
~y
transfer station is therefore inconsistent.
11
There is no need for this facility, and neither is it Consistent with Effingham County’s Solid
Waste Management Plan.
-
-
,
-
—
-
-
-
-
-
Criteria 2,
5
and 6
The only issue discussed by Sutter Sanitation in its initial brief with respect to criteria
2,5
or
6 was the fact that, until it filed
its public Comment with the County Board, it had no idea howthick
the floor ofthe proposed facility was, or whether the floor would handle the weight ofthe packer
trucks or semi trailers that would utilize the facility.
Astounding as it is that Sutter Sanitation did
not know this basicfact, Sutter Sanitation’s public Comment
did, provide information which, if true,
might establish that
the floors are sufficient.
Of course, that public comment was not under oath,
and could be misrepresentative ofthe entire floor.
Still, it does provide a scintilla ofevidence to
support the County Board’s decision with respect to that particular issue.
However, Sutter Sanitation’s initial brief was virtually silent as to
a string ofother issues
raised during the hearingwhich reveal serious, and unaddressed, design flaws for this facility.
First,
Sutter Sanitation knows that there is
a dwelling on its property, and itknows that another dwelling
is located across the street, and yet Sutter Sanitation failed to address the basic location standard set
forth in Section 22.14 ofthe Illinois Environmental Protection Act, 415 ILCS 5/22.14, which
prohibits the establishment ofthis transfer station facility within 1,000 feet of such dwellings.
Sutter Sanitation’s silence should be interpreted as acquiescence and
agreementthat this is a fatal
flaw.
-
Similarly, Sutter Sanitation is silent about the danger ofthe wood framing on the interior of
this grain storage facility that Sutter Sanitation wants to transform into a transfer station.
Rot,
decay, vectors, and fire hazards all await this proposal, should it ever be brought to life, and Sutter
Sanitation presented virtually no evidence that the wood framing is safe or proper for,this type of
use, even in the fact oftestimony that it is ~
appropriate.
The same is true about Sutter
Sanitation’s failure to address the lack ofpush walls..
12
Sutter Sanitation was also revealingly silent about the fact that it h-ad-admitted, through
Tracy Sutter’s own testimony, that its ceiling heights were so low that common roll-offs would
bang into, catch upon, crash into, and otherwise come into forceful-contact with the rafters, ceiling
beams, or doorways.
Although Mr. Sutter’s small packer trucks will apparently not crash into the
ceilings or doorways, the unrebutted evidence shows that other commonly used packer trucks will,
and nothing in Sutter Sanitation’s application would limit use of the facility to Sutter Sanitation
alone, nor explain how thefacility.wifi be made safe for the public utilizing it.
Landfill 33’s opening briefalso pointed out numerous other deficiencies with
Sutter
Sanitation’s application, including lack ofinformation concerning facility staffing, the amount or
what will be done with leachate generated at the facility, and the specific traffic routes
that will be
utilized
to prevent accidents or injuries.
Sutter Sanitation said nothing about these issues in its
initial brief filed with this Board.
Just one week ago
this Board decided County of Kankakee v.
City ofKankakee, PCB 03-
31,
03-33 and 03-35 (consolidated) (January 9, 2003), reversing the decision ofthe local siting
authority
on its criterion 2 decision, because the siting applicant had
inaccurately
characterized the
geology underlying the proposed landfill as an aquitard rather than an aquifer.
Although the city
had addressed the issue by including a condition requiring protection of aquifers from
contamination.through the permitting process, this Board held such a condition to be insufficient,
because it is the siting authority which must determinewhether the second siting criterion--is the
facility so located, designed and proposed to be operated so as to protect the public health, safety
and welfare--has been met; the siting authority “cannot simply defer to the Agency when there is
insufficient evidence to support an applicant’s siting request.” (Slip op. at 28).
Here that precise situation exists.
Rather thanpresent evidence on the multitude ofdesign
features one would expect in a transfer station, such as floor thickness, leachate control, ceiling
heights, compliance with location standards, interior framing and other fire dangers, push walls,
floor slopes and gutters, facility staffing, and traffic control details, Sutter Sanitation took the
approach that the County Board need not be
bothered with these details.
Mr. Deters, Effingham
-
13
County’s State’s Attorney, asked Sutter Sanitation’s engineer, with respect to the unknown
thickness ofthe facility’s floors, whetherthat
is “an issue that the IEPA would follow up on to
make sure that you’re in some sort of a compliance, or is--or is that not something that theywould
do?”
Mr. Kimmel responded, “Yes.
The reality is that a majority of the items that Mr. Johnsrud
has presented are items--technical items that the agency reviews as part ofthe application process
and generally are not considered when considering the nine criteria that the board is utilizing to
evaluate the facility.
Again, all ofthose issueswill have to be addressed with the agency during the
permit application process.” (C.269).
Sutter Sanitation’s attorney attempted to get Landfill 33’s
engineer, Bryan Johnsrud, to admit the same thing, but Mr. Johnsrud refused to go down that path:
“Q:
You agree that the IEPA--and I think you already said this,
but I want to make sure--looks at
some ofthese technical requirements.
You’re--yes or no?
They do, right?”
Mr. Johnsrud
responded:
“Yeah, IEPA would look at it in a more technical nature than--they’re expected to do
that as part oftheir responsibility more than--than that’s given to the State or the County Board.
However--and my experience has been that they do not always have the time or the qualifications to
really answer those
questions or to--or to ask the right questions without preventing problems.
You
know, I mean, that.. .probably 60 percent ofmy business is trying to fix problems that somebody
else created, rather than building something new and building it right the first time.” (C.286-
C.287).
Sutter Sanitation attempted to retrofit an old abandoned grain storage facility into a modern
pollution control facility, a transfer station, and Landfill 33 pointed out numerous design defects
that rendered the facility incapable of protecting the public health, safety and welfare, or of
implementing safe traffic patterns or operating plans.
Sutter Sanitation never provided missing
information or other evidence to support its bare claim that this facility meets the statutory siting
criteria, but instead convinced the County Board not to worry about performing its statutory duties,
because it could rely upon (it could defer to) the Illinois Environmental Protection Agency to do the
job for it.
As this Board stated only
a week ago, that is improper.
This siting approval should be
reversed outright.
14
-
WHEREFORE, Petitioner LANDFILL33, LTD., requests that this Board find that the
Effingham County Board’s decision granting local siting approval to the proposed transfer station
ofSutter Sanitation Services is againstthe manifest weight ofthe evidence, and therefore reverse
that approval.
Alternatively, Landfill 33, Ltd. asks that this Board dismiss this proceeding as a
consequence of the failure of Sutter Sanitation Service to establish jurisdiction over this proceeding.
Finally, alternatively, Landfill 33, Ltd. requests that this Board reverse these proceedings and
dismiss, for failure to provide fundamentally fair proceedings, or in the alternative reverse and
remand to the Effingham County Board for further proceedings calculated to eliminate the
fundamentally unfair circumstances.
-
Respectfully submitted,
LANDFILL33, LTD.,
Petitioner,
-
By its attorney,
HEDINGE
AW OFFICE
By
~hen
F.
Hedinger Law Office
1225 S. Sixth St.
Springfield, IL 62703
-
(217) 523-2753 phone
(217) 523-4366 fax
15
