RE
C E ~V E D
~
BEFORE THE ILL~
OL BOARD
SlATE
OF
ILLiNOIS
Pollution
Control BQard
LANDFILL 33, LTD.,
)
)
Petitioner,
)
)
)
PCB
03-43
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD and
)
Control Facility
)
Siting Appeal)
SU1TER SANITATION SERVICES,
)
)
Respondents.
)
STOCK&CO.,
)
)
Petitioner,
)
)
V.
)
PCB 03-52
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD and
)
ControlFacility
)
Siting Appeal)
SUYFER SANITATION SERVICES,
)
)
Respondents.
)
NOTICE OF
ERRATA--CLOSING BRIEF
OF PETITIONER
LANDFILL 33,
LTD.
NOW COMES Petitioner, LANDFILL 33, LTD. (hereinafter “Landfill 33”), through its
undersigned attorney, and hereby advises of errata identified by Petitionerfollowing the filing ofits
closing brief, which was sent via FedEx to the Pollution Control Board on Thursday, January
9,
2002.
In support of this pleading, Landfill
33 states as follows:
1.
Landfill 33 submitted
its closing briefvia FedEx on Thursday, January
9, 2003, for
filing with this Board, in compliance with hearing officer schedule on Friday, January 10, 2003.
2.
Following the filing of the closing brief, Landfill 33 has identified a number of
mistakes within the document submitted.
These mistakes were inadvertent, in the nature of editing
errors, and are not intended to substantively modify in any way the pleadingearlier submitted by
Landfill 33.
3.
Attached hereto is a red-lined version ofthe closing brief, showing the errata
modifications being made.
This pleading is entitled “Corrected Closing Brief of Petitioner Landfill
33, Ltd.”
Also attached is a non-redlined version.
WHEREFORE, Petitioner, LANDFILL 33, LTD., requests that this Board accept this errata
in
the form of the attached “Corrected Closing BriefofPetitioner Landfill 33, Ltd.”
Respectfully submitted,
LANDFILL 33, LTD.,
Petitioner,
Hedinger Law Office
1225
S. Sixth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
By its attorney,
HEDINGER LA
2
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ifliiDji
((r~
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I
CLERK’S
OFFK~E
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U~t~L
142003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Po1lut~0n
Control
Boc~’rd
LANDFILL33, LTD.,
)
)
Petitioner,
)
)
v.
)
PCB
03-43
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD and
)
Control Facility
)
Siting Appeal)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
STOCK&CO.,
)
)
Petitioner,
)
)
v.
)
PCB 03-52
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD
and
)
Control Facility
)
Siting Appeal)
SUTFER SANITATION SERVICES,
)
)
Respondents.
)
CORRECTED
CLOSING BRIEF OF PETITIONER
LANDFILL 33.
LTD.
NOW COMES Petitioner, LANDFILL 33, LTD. (hereinafter “Landfill 33”), through its
undersigned attorney,
and as allowed by Hearing Officer Order entered at the time ofhearing in this
matter, hereby submits its closing brief.
This brief, consistent with Illinois law and Landfill 33’s petition filed in this case, seeks
reversal ofthe decision ofRespondent EFFINGHAM COUNTY BOARD (hereinafter “County
Board”), which affirmed an application submitted pursuant to
415
ILCS 5/39.2, of the Respondent
SUTTER SANITATION SERVICES, INC. (hereinafter “Sutter Sanitation”), for approval of a
transfer station to be located within Effingham County.
Landfill 33 challenges the decision on the
following grounds:
(1) Sutter Sanitation failed to comply with statutory prerequisites to secure the
jurisdiction ofthe County Board, and accordingly the County Board proceedings were a nullity; (2)
the proceedings before the County
Board deprived Landfill 33, and others, offundamentally fair
proceedings; and (3) the decision ofthe County Board
is against the manifestweight ofevidence
with respect to criteria 1, 2,
5, 6,
and 8,
415
ILCS
5/39.2(a)(i),
(ii), (v), (vi), and (viii).
jurisdictional
Issues
An application for local siting approval pursuant to Section 39.2 of the Illinois
Environmental Protection Act,
415
ILCS
5/39.2(b),
must comply with certain statutory notice
requirements, which have been held to be jurisdictional prerequisites.
In otherwords, failure of a
siting applicant to comply with the mandatory notice requirements results in the local siting body
never obtaining jurisdiction over the proceedings, and thus any subsequent proceedings are null and
void.
~
Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board,
162111. App. 3d
801,
516
N.E. 2d 804
(5th
Dist.
1987); Kane
County Defenders, Inc. v. Pollution Control
Board,
139
111. App. 3d 588, 487 N.E. 2d 743 (2d Dist.
1985);
Concerned Boone Citizens, Inc. v. M.I.G.
Investments, Inc., 144 Ill. App. 3d 334, 494 N.E. 2d 180 (2d Dist.
1986); Ogle County Board v.
Pollution Control Board, 272 Ill. App.
3d 184,
649
N.E. 2d
545
(2d Dist.
1995).
Each ofthese
cases, as well as many others decided by this Board, have construed the notice requirements,
including both the direct service ofnotice requirements and publication ofnotice requirements of
Section 39.2(b),
and
without exception these decisions have held these requirements to constitute
jurisdictional prerequisites.
In Land & Lakes
Co.
v. Pollution Control Board, PCB 91-7 (August 26, 1991), this Board
held that the pre-hearing notice requirements set forth in Section 39.2(d) ofthe Illinois
Environmental Protection Act, 415 ILCS
5/39.2(d),
also constitute jurisdictional prerequisites
applicable to
a siting proceeding.
This Board analogized the Section 39.2(d) requirements with
those
discussed in Illinois Power
Co.
v. Pollution Control Board, 137 Ill. App. 3d 449, 484 N.E.2d
898
(4t1~
Dist.
1985), in which the Court held that the Board’s failure the provide proper hearing
notice pursuant to Section 40 rendered the decision invalid.
Consequently, this Board held that
“the requirements of Section 39.2(d) of the Act are jurisdictional....”
The Section 39.2(d) requirements include the following:
“At least one public hearing is to
be held by the County Board....
No later than 14 days prior to suchhearing notice shall be
published in
a newspaper ofgeneral circulation published in the county of the proposed site, and
2
delivered by certified mail to all members ofthe General Assembly from the district in which the
proposed site is located....”
In the Land & Lakes case, the siting authority, Village of Romeovifie, was determined to be
the party responsible for providing the notice, due to a village ordinance as well as the parties’
actual practice in the case.
In that August 26, 1991 order, this Board found that the Village had
failed to provide required notice ofthe hearing (the Board found that two legislators had not been
provided the statutory notice), and therefore ruled that the hearingwas a nullity.
(Later, upon
a
motion for reconsideration, this Board vacated that order upon revelationby the Village, as well as
the IntervenorWill County, that the notices actually had been delivered to the legislators in
accordance with the statute).
In this case, rather than the notice requirements falling upon the shoulders ofthe county,
Sutter Sanitation undertookthe responsibility to provide the statutory notice.
The mailing notices
are found in the record at C.339-C.350; in each instance, the “Sender” is identified as Sutter
Sanitation.
Moreover, the notices were accompanied by a letter, written on Sutter Sanitation
letterhead and signed by Sutter Sanitation, identifying the date ofthe hearing1
(C.353).
Sec also
C.184-C.186 (hearing testimony concerning notices).
The hearing was held on August
14, and pursuant to Section 39.2(d), delivery ofthese
notices had
to have been accomplished by July 31
(“No later than 14 days prior to
such hearing
notice
shall be.. .delivered by certified mail...”).
~
~o
C.184 C. 186 (hearing testimony
concerning notices).\
Sutter Sanitation failed to comply with its statutory obligation.
Section 39.2(d) unambiguously requires that the notice be “delivered by certified mail to all
members ofthe General Assembly from the district in which the proposed site is located.
.
.
.“
In
otherwords, by July 31, 2002 (14 days before the hearing), Sutter Sanitation was responsible to
have the notice
“delivered by certified mail” to the legislators.
The record, though, reveals that
Sutter Sanitation, while having complied with the statutory requirements in most instances (its letter
1
The hearing had originally been scheduled for July
31, but ~as
rescheduled for August 14.
3
was sent July
26, 2002), failed to assure that the notice was delivered to
SenatorN. Duane Noland
until August 1, 2002.
(C.345).
In an apparent effort to remedy, Sutter Sanitation purports to have
had someone from its lawyers’
office hand-deliver the notice to Senator Noland on July
31, 2002
(C.352),
but obviously that notice is ineffective as failing to have complied with the statute.
(The
statute does not permit hand delivery, but requires certified mail delivery; clearly the legislative
intent is to avoid the necessity ofprobing into the bona fides ofpurported claims of service being
made by the agents. and employees of siting participants).
Because even a single instance of improper notice renders proceedings void, and because
Sutter Sanitation bore responsibility for seeing to it that the notices were sent out in accordance with
the statute2, and because Sutter Sanitation failed to comply, these proceedings are void, and the
County Board ruling must be vacated.
Fundamental Fairness
Pursuant to
Section 40.1 of the Illinois Environmental Protection Act, this Board is
authorized and obligated to consider the fundamental fairness ofthe local proceedings.
Landfill 33
challenges the proceedings before the County Board
as having violated rights to fundamental
fairness, for the following reasons:
2
At
this Board’s
hearing,
the hearing officer only allowed Landfill 33
to present additional evidence on
this issue
(the testimony of Tracy
Sutter, president of Sutter Sanitation, who was present in the hearing room) pursuant to an
offer of proof, based upon Sutter Sanitation’s objection.
In the
event Sutter Sanitation argues, in responding to this
jurisdictional issue, that it did not have responsibility for the hearing notices, or that
some other party (such as
the
County Board) did have that
responsibility, then Sutter Sanitation has waived its objection and the offer of proof
should be allowed in substantively.
(Mr. Sutter’s
testimony, Tr. 62-Tr.
66, confirmed that
Sutter Sanitation
assumed and bore the responsibility for providing the hearing notice; compare C.184-C.186).
Moreover,
35
Ill.
Adm. Code 101.616(h)
requires discoveryamendment only when “the party learns that the response is in some
material respect incomplete or incorrect;” counsel for Landfill 33 learned of the
discovery incompleteness after 6:30
p.m. (i.e.,
after business hours),
and the very next day, at hearing, informed
all
parties and the hearing officer.
Finally, Sutter Sanitation was not prejudiced by Landfill
33’s confirmatory questioning regarding a jurisdictional
issue, and certainly not if it seeks to dispute that sworn testimony (again, this offer of proof confirms record evidence
at
C.339-C.350,
C.353,
and testimony at C.184-C.186).
In addition,
even if Sutter Sanitation is able to argue that the Land & Lakes results should apply here,
clearly such
an argument must fail.
The Land &Lakes result occurred due to the
deadlinefor hearing, which is
intended to protect and benefit the
applicant, and it would be completely improperfor this applicant to benefit by its
own wrongdoing.
Hence,
the
Land
& Lakes“automatic approval”
result simply is unavailable here; instead, the
proper
remedyfor the jurisdictional violation is to vacate the proceedings--any other result would result in
fundamentally unfairproceedings.
4
(1)
Recycling Issues.
Landfill 33 was provided fundamentally unfair proceedings through the County Board’s
refusal to allow Landfill 33 to address recycling issues which had been discussed by Sutter
Sanitation and more than one commenter, and were ultimately relied upon by the County Board in
rendering its decision.
Specifically, early in the proceedings on August 14, the County Board chairman instructed
the audience that the proceedings were to concern themselves with Sutter Sanitation’s proposal to
site a transfer station,
and nothing else. (C.132-C.133).
However, during his testimony Tracy
Sutter spoke at length about his recycling center (which is
operated atthe sarne location as the
transfer station), and in fact threatened the County Board that, if he were not granted the transfer
station siting approval, he would
close down the recycling center.
(C.190-C.193).
On the basis of
that testimony, when Landfffl 33 was given the opportunity to present evidence, they offered to
present the testimony ofBrian Hayes to address recycling issues that had been raised by Tracy
Sutter. (C.289).
The County Board chairman,
though, instructed counsel forLandfill 33 to not
proceed with any such testimony, but assured counsel that the County Board would not consider
any aspects ofrecycling in their deliberations, and with that assurance Landfill 33 did not press the
issue. (C.289-C.290).
In point offact, though, in its ruling approving Sutter Sanitation’s proposal
the County Board expressly considered this recycling issue,
and in fact ruled in Sutter Sanitation’s
favor on the basis of the recycling program. (C.432).
Indeed, at the hearing before this Board Ms.
Nancy Daters, a vocal supporter of Sutter Sanitation’s proposal insofar as it resulted in recycling
(see C.4i4~,
indicated that the County Board’s vote was only about the recycling issue--according
to Ms.
Daters, the recycling issue was the “elephant” in the room that everyone knew was present,
but many weren’t talking about.
According to
her, the County Board chairman was ignored by the
otherCounty Board members, whowere present to concern themselves only with the recycling
issue. (Tr. 37- Tr. 38).
Accordingly, the record reveals clearly that Landfill 33 was deprived ofits opportunity to
address an issue which was pivotal in the County Board’s decision to grant approval to
Sutter
5
Sanitation’s proposal.
Although the County Board chairman was correct in his statement that the
recyclingissue
should have been largely irrelevant to the siting issue (save only for the issue ofhow
those operations would effect the safety ofthe proposed facility), the fact that the County Board
was concerned first and foremost with that issue resulted in absolutely unfair proceedings as to
Landfill
33, which requested an opportunity to address the issue but was prevented from doing so,
while at the same time being wrongly assured that no prejudice would occur.
Prejudice clearly did
occur, and Landfill 33 requests that these proceedings be reversed and remanded to the County
Board for wholly new proceedings.
(2)
Visits
by
County and/or
Committee.
The record reveals that the County Board visited the transfer station site on Wednesday,
July 31, at 6:30 p.m. (C.109).
This visit was not publicly announced, and Landfill 33 was given no
opportunity, to attend.
No record ofthat visit has been made at all,
in fact.
Moreover, Tracy Sutter
revealed that the County’s Waste Committee visited the site, and took notice ofthe fabiity’s
operations.iC~~i9i).
Pursuant to
Southwest Energy Corp. v. Pollution Control Board, 275
111. App.
3d
84,
655
N.E. 2d 304
(4th
dist.
1995)
(Garman, J.), even if a site visit is acceptable, it
~
be
accompanied with notice to parties, to allow them to attend as well.
These sitevisits require a
reversal and vacation of the siting decision by the County Boarda.
(3)
Amendment of Application.
As
discussed more fully below, Sutter Sanitation’s application for siting approval contended
that a need existed not because regional disposal capacity was inadequate (in fact, the application
admitted that capacity “appears to be adequate to accommodate refuse capacities generated in
Effingham County and the surrounding area in the near future”), but rather because there was some
need to maintain “a method
to transfer county generated waste to
one or more ofthese facilities.”
(C.15).
Sutter Sanitation also claimed that this needwas supported by Effingham County’s solid
waste management plan. (Id.).
After the hearing, though, and in fact at the end of the public
~
See footnote 2 and the
relief requested
therein, which Landfill 33 requests also with respect
to this issue in the
event Sutter Sanitation challenges the
record evidence on this issue.
6
comment period,
and without giving notice to Landfill 33, Sutter submitted a public comment which
for the first time contended that the proposed transfer station was necessary because Landfill 33
may have insufficient capacity. (S~C.369-C.370; C.376-C.386).
Because this newbasis for need was made at the close of the public comment period,
Landfill 33 had no opportunity to respond, or to probe into Sutter Sanitation’s intentions or
assumptions, norto present contrary evidence or argument.
Section 39.2(e) of the Illinois Environmental Protection Act, 415 ILCS
5/39.2(e),
permits
applicants to make only a single amendment to their application, and that must be made prior to
completion of the applicant’s presentation ofevidence
at hearing, and even then the decision
deadline is to be extended by 90 days.
Here, of course, Sutter Sanitation’s amendment was made
some 30 days ~ft~ the hearing.
This behavior completely deprived Landfill 33 ofthe opportunity to address the scurrilous
allegations made by Sutter Sanitation.
Landfill 33 lost the opportunity to cross examine as well as
to present its own evidence.
This is highly improper; more than that, it was fundamentally unfair.
These proceedings should be started anew, to allow all participants the statutory amount of time to
consider the application which Sutter Sanitation, in the end, presented to the County Board.
Manifest Weight of the Evidence
The County Board’s decision was also against the manifestweight of the evidence with
respect to at least five siting criteria, and for that reason should be reversed, and Sutter Sanitation’s
proposal denied.
(1)
The
“Need”
(Criterion 1) and Solid
Waste Plan
Consistency
(Criterion 8) Criteria
Sutter Sanitation combines its criterion~
analysis (requiring a showing that the proposed
facility “is necessary to accommodate the waste needs ofits intended service area”) with its
discussion ofthe consistency ofits proposal with Effingham County’s
Solid Waste Management
Plan, pursuant to the eighth siting criterion.
415 ILCS
5/39.2(a)(i)
and (viii).
Sutter Sanitation’s
application begins by asserting a service area of approximately 30 to 50 miles from the location of
7
the proposed transfer station--”This radius is based upon the economical distance a refuse
collection vehicle’can travel
on a routine basis, in addition to the location ofrefuse disposal facilities
outside of Effingham County.” (C.14).
Sutter Sanitation provided a map showing this distance,
along with landfills and other solid waste management facilities located within that radius. (C.17).
Sutter Sanitation then acknowledged that two landfills, the Salem Municipal Landfill and Landfill
33, Ltd., are located within 30 miles of the transfer station location (Landfill 33, Ltd., is so close that
Sutter
Sanitation didn’t even identify the distance). (C.17; see
gj~
C.141).
Six additional facilities,
some with substantial capacities, are locatedwithin the 50 mile range, including the Coles County
Landfill, the Wayne County Landfill,
the D & L Landfill, the Litchfield Landfill, and the Five Oaks
Landfill.
(C.18;
C.141-142).
Based upon the Illinois Environmental Protection Agency’s 2000
Annual Report, Sutter Sanitation identified the reported remaining capacities for these eight
facilities. (C.14).
The estimated lifespans ofthe facilities ranged from less than one year, all the
way ‘up to 45 years.
The Application acknowledged that the Landfill 33, Ltd., lifespan was 7 years
(later, though, Sutter Sanitation admitted that Landfill 33, Ltd., had recently received an expansion
and consequent permitting, and that the current lifespan for the facility is 29 years).
Following presentation ofthis information, the application
states:
“As can be noted, the
regional waste disposal capacity appears to be adequate to accommodate refuse capacities gene-rated
in Effingham county sic
and the surrounding area in the near future, however, the current dilemma
exists in maintaining a viable out ofcounty waste disposal source and method to transfer county
generated waste to one or more of these facilities.
Again, it is noted that conventional refuse
collection vehicles cannot routinely travel excessive distances without significant operation and
maintenance costs.
Therefore, it is common and practical for waste to be transferred from collection
vehicles to transfers trailers
sic,
or similar containers, which in turn are transported to the waste
disposal location.
This method ofoperation also allows more productive use ofcollection
vehicles.”
(C.15).
During its testimony, Sutter Sanitation’s “needs” expert reiterated this theory
ofnecessity:
“As can be noted, the regional waste disposal--again, regional waste disposal capacity
appears to be adequate.
In otherwords, that waste capacity within the 50-mile radius appears to be
8
adequate to accommodate the refuse generated in Effingham County and the surrounding area in
the near future.
However, as we see it, the current dilemma is in maintaining a viable, out-of-county
waste disposal
source and a method
to transfer county-generated waste to one ormore of these
facilities.” (C.142-C.143--testimony of David Kimmle).
The “needs” analysis of Sutter Sanitation, from that point, shifted into a discussion of the
Effingham County Solid Waste Management Plan; according to
the application, the County Plan
stated the preference “to support the disposal ofwaste generated in the county at in-county and
out-of-county landfills.
As stated above, to economically access out-of-county landfills, a waste
transfer station is needed.”
(C.15).
Mr. Kimmle’s testimony similarly continued:
“The regional
waste management plan for Effingham that we referenced earlier dated 1995 is a plan, as I said
earlier, developed and adopted by the county board to address the management ofwaste generated
in Effingham County.
Reference to that plan will indicate that
is the county board’s intention to
support the disposal ofwaste generated in the county at in-county and out-of-county landfills.
Economically, access out-of-county landfills, we feel that a waste transfer station is needed.”
(C.143).
Based upon Sutter Sanitation’s own work product, it is clear that there is no
“need” for
this facility; the proposed transfer station is clearly not necessary to accommodate the waste needs
ofits intended service area.
Indeed, Sutter Sanitation’s own evidence acknowledges sufficient
capacity to accommodate the waste needs.
The only justification for the siting proposal is the
purported “dilemma” to maintain “a viable out of county waste disposal source and
a method
to
transfer county generated waste to one or more ofthese facilities.”
(C.15).
Taken separately, this
purported “dilemma” does not even exist, let alone constitute
a basis for finding a “need” for the
proposed facility.
Nothing about Sutter Sanitation’s proposal supports the view that without this
transfer station, the out-of-county disposal facilities might not be “viable.”
Nothing in
Sutter
Sanitation’s materials support the apparent assumption that these out-of-county facilities might fail,
or otherwise become unviable, without this transfer station.
To the contrary, in fact, Mr. Kimmle’s
9
testimony acknowledged both that each ofthese out-of-county facilities have substantial airspace
available, and that each already services a large service area. (C.143-C.144).
More to the point, though, is that Sutter Sanitation’s burden was to prove that the service
area needs the transfer station, not that the out-of-county facilities need it.
Furthermore, Sutter Sanitation’s own evidence refutes its assertion that the transfer station
is needed to provide “a method to transfer county generated waste to one or more of these
facilities.”
Its assumption is that a 30 to 50 mile range is “the economical distance a refuse
collection vehicle can travel on a routine basis.”
Its own evidence shows that these out-of-county
facilities are each located 50 miles or less from the location ofthe transfer station.
Thus, these
facilities can already be economically accessed, without any reason for creating a transfer station.
Utilizing Sutter Sanitation’s own assumptions and materials, Don Sheffer, a professional
engineer
who assisted Effingham County in drafting it Solid Waste Management Plan (see C.202-
C.204), demonstrated that f~effi-.virtuallyany location
within
the service
area
is
within
30 milbs of
the largest of the landfills identified by Sutter Sanitation. (C.210; C.363).
Indeed, even if, for some
reason, Landfill 33, Ltd., was removed from the discussion (which apparently is Sutter Sanitation’s
intention), virtually every location within Sutter Sanitation’s service area is located within less than
50 miles ofone of those landfills. (C.210-C.211; C.364).
(And of course, with Landfill 33, Ltd.,
the distances
are much closer to the nearestlandfill).
Notably, though, even without the work
product of Mr. Sheffer, Sutter Sanitation’s own evidence reveals there is simply no “need” for this
facility--this transfer station is not, by Sutter Sanitation’s own evidence and admissions, necessary
to accommodate the waste needs ofits service area.
Whether it might be convenient or handy for
Sutter Sanitation, or more profitable for Sutter Sanitation,
is not the issue.
The service area simply
does not need this facility.
Similarly, Sutter Sanitation’s analysis ofthe eighth siting criterion is unsupportable.
According to the application and Mr. Kimmle, the proposed transfer station is necessary because
the Solid Waste Management Plan supports disposal ofEffingham County waste at in-county and
10
out-of-county facilities, and Sutter Sanitation contends its transfer station is necessary to cost-
effectively transport waste from Effingham County to these out-of-county facilities.
In the first place, though, Sutter Sanitation’s apparent service area is not co-extensive with
Effingham County, but to the contrary extends in a radius of50 miles surrounding the proposed
location of the transfer station (which is located in the extreme southwest corner ofEffingham
County).
(S~
C.17).
The service area accordingly incorporates portions of around twenty counties
in addition to Effingham County.
Hence, even if Effingham County’s Solid Waste Management
Plan said what Sutter Sanitation contends it says, that issue is not relevant to whether Sutter
Sanitation’s proposed service area needs this facility (and, as discussed above, Sutter Sanitation’s
own evidence reveals that it does not).
Second, Sutter Sanitation’s assertion that the Effingham County Solid Waste Management
Plan infers a need for a transfer station overlooks most ofthe Solid Waste Management Plan, and
does not even focus on any language which clearly suggests a need for a transfer station.
Nowhere
in the plan, in fact, is such a need or desire asserted.
Sutter Sanitation’s analysis consists ofacknowledging the Solid Waste Management
Plan’s recognition that “all waste collection service in Effingham County is provided by private
haulers.
These haulers have the right to choose the landfill(s) at which they dispose ofthe waste
they collect.” (C.71, quoting page 6-41 of the Plan).
Sutter Sanitation makes a leap of logic, and
infers that due to the encouragement of the use ofout-of-county waste facilities, “based on
economics,” to economically utilize an out-of-county facility “a solid waste transfer station is
needed.”
(C.71).
Of course,
this is not true--the 50 mile
“economical transport” radius
established by Sutter Sanitation is easily met, without any transfer station.
With respect to the Plan, though, the more significant point is that Sutter Sanitation’s
analysis completely ignores the fact that the Plan expressly considered the possibility of transfer
stations,
and excluded those; the out-of-county facility recommendation is premised upon direct
haul, not transfer station utilization.
Indeed, the very page ofthe plan cited by Sutter Sanitation
reveals that “all
Effingham County waste
that is disposed of in landfills is currently hauled
11
directly to either Landfill No.
33
in Effingham County or the ERC Landfill in
Coles County,” and
“the
basic recommendation for landfill disposal of Effingham County waste over the twenty year
planning period is to continue to
use the two landfills discussed above.” (Solid Waste Management
Plan, at 6-41; see C.366).
The specific yearly components, noted on the remainder ofthat page of
the Plan as well as the following page, clearly indicate that direct haul to those two facilities is the
County’s preferred method ofwaste disposal, and that “the
Plan does not list any newprograms
or facilities to be developed during the years 2-4 and 5-10 period.” (C.366-C.367)
The meaning of the Plan, in fact, is enhanced by consideration of an earlier portion ofthe
Plan document, in which various Landfill Disposal options were discussed.
Specifically, the Plan
considered four separate mechanisms for Landfill Disposal--(1) “the continued direct hauling of
waste to in-county and out-of-county landfills;”
(2) “expansion ofthe existing in-county and/or
out-of-county landfills;” (3) “construction of a new in-county landfill;
and” (4) “construction of
an in-county transfer station for transport oflocal waste to out-of-county landfills.” (Plan, at 3-25;
see
C.365).
Obviously, the proposal ofSutter Sanitation falls within the category (4) above (an in-
county transfer station to transport waste out-of-county), but as Sutter Sanitation itself is forced to
admit, the Plan rejected that proposal, and opted solely forthe first option, along with ultimate
adoption of the second (i.e., continued utilization through direct haul of both in-county and out-of-
county landfills,
along with expansion ofexisting facilities at the appropriate time).
Again, nothing
in any portion of the Plan in any way or to any
degree supports a contention that the Plan supports
an in-county transfer station to haul to out-of-county landfills.
This was explained by Don Sheffer, who was instrumental in developing the county Solid
Waste Management Plan. (C.213-C.216).
Mr. Sheffer explained, as discussed above, that although
Effingham County considered the possibility ofdeveloping a transfer station to haul waste out of
Effingham County, the Plan as adopted rejected that proposal, and instead proposed only the
continued utilization ofexisting landfills through direct haul, alongwith expansion ofthose
facilities as needed.
12
Sutter Sanitation’s proposal is neither an expansion of an existing landfill facility, nor a
continuation ofexisting disposal patterns.
It is a brand new effort, one that the Effingham County
planners considered but rejected.
It should have been rejected this time by the Effingham County
Board, for failing to comply with both criterion 1
and criterion 8; it is now up to this Board to rule
that the County Board’s decision on these two criteria was against the manifest weight ofthe
evidence, and cannot stand.
(2) Criteria
2 (Health/Safety/Welfare),
5
(Plan of Operation) and 6
(Traffic Patterns).
A number of points were raised by Landfill 33, Ltd.’s transfer station expert, Bryan
Johnsrud, concerning deficiencies ofthe proposed transfer station facility with respect to criterion 2
(that the facility is so located, designed, and proposed to be operated that the public health, safety
and welfare will be protected), criterion
5
(that the plan of operations will minimize the danger of
fire,
spills, or other operational accidents), and criterion 6 (that the traffic patterns to and from the
facility willminimize impact upon existing traffic patterns).
(~
415 ILCS
5/39.2(a)(ii),
(v),
and
(vi)).
This testimony was virtually unchallenged, unrebutted
and unanswered by Sutter Sanitation,
to the extent discussed below.
Hence, this is not a situation where the County Board chose to
accept certain testimony over other competing or contradictory testimony, but to the contrary this is
a situation in which the County Board, for whatever reason, simply refused to accept unrebutted
testimony.
Their decision on these points, therefore, is unquestionably against the manifest weight
ofthe evidence.
See Industrial Fuels
& Resources/Illinois, Inc. v. Pollution
Co~’itrol
Board, 227 Ill.
App. 3d 533, 592 N.E. 2d
148
(1st
Dist. 1992).
Location Standards--Pursuant to Section 22.14 of the Illinois Environmental Protection Act,
415 ILCS 5/22.14, it is unlawful for anyone to establish
a transfer station within 1,000 feet ofa
dwelling.
Clearly a violation of Section 22.14 is, as a matter oflaw, a violation ofthe second siting
criterion.
Here Sutter Sanitation’s own documentation reveals the existence
of a dwelling less than
200 feet from the building that will house this proposed transfer station!
(C.238).
In fact, the house
even has a swimming pool! (C.239).
Sutter Sanitation has admitted the existence ofthis
dwelling,
but claims that it will not allow anyone to live there, but instead the building will be used as offices.
13
Clearly this is insufficient; the statute (Section 22.14) outlaws transfer stations near a “dwelling,”
and
is silent upon any obligation that the dwelling be occupied.
Indeed, the suggestion is nullified
by the additional statutory prohibition on such transfer stations being located within 1,000 of
property zoned for residential use--the statute clearly, in that instance, does not
require actual
buildings or occupancy, so clearly the legislature did not intend any such limitation with respect to
the
“dwelling” aspect of the setback rule.
The structure was built to be
a house, could at any time
be utilized as a house, and is clearly a “dwelling,” as is emphasized and underscored by the
swimming pool gracing its properties.
This is
a prohibited location for this proposed transfer
station.
(In addition,
it has come to light that a dwelling also exists across the road from this
facility, although the County Board refused to
accept evidence relating to that structure. (See Tr. 39-
Tr. 42)).
This would seem to rise to ajurisdictional level--the statute, after all, does not prohibit
such a structure as a matter of siting, but rather prohibits anyone from establishing suôh a facility.
As
a matter ofjurisdiction, fundamental fairness, and manifest weight ofthe evidence, this proposal
should be disqualified.
Wood Framing.
Sutter Sanitation has admitted that the interior of this building is made of
wood.-
As Mr. Johnsrud testified,
this is improper building materials for the interior of a transfer
station, againstwhich waste will be dumped, scraped and pushed in normal, everyday transfer
station operations.
As
Mr. Johnsrud explained,
this building was built and designed as &grain
storage facility, and Sutter Sanitation’s attempt
to turn it into a transfer station has leftnumerous
unacceptable features, including the wood framing.
In addition, Mr. Johnsrud noted the absence of
any “pushwalls” within the facility (hard walls against which a scraper can pushwaste, in order to
scoop it into the appropriate receptacle). (C.245-C.246),
Although Sutter Sanitation had
opportunity to inform the County Board of either the existence of such push walls or the intention
to install them, or ofthe intention to remedy the woodenmembers ofthe structure, Suffer Sanitation
never did so.
Fire Dangers.
In addition, the wooden interior ofthe structure poses a greater risk offire,
and the rurallocation of this formergrain facility will make it much more difficultfor fire
14
professionals to respond to
any fire emergencies.
In addition, the rural location reveals a lackof
adequate water resources, another point that Sutter Sanitation has conceded.
(C.246-C.247).
Floor Thickness.
Mr. Johnsrud noted the absence of information in the application
concerning the thickness of the floor of the former grain storage facility. (C.246).
Incredibly, Mr.
Sutter, president ofSutter Sanitation, had no idea how thick the floors were. (C.268).
Subsequently, however, Sutter Sanitation submitted a “public comment” that asserts that borings
of the concrete revealed a
9.5
inchthick concrete surface that slopes toward one direction (the
direction
Sutter Sanitation proposes for leachate to head). (C.387).
As
pointed out by Mr.
Johnsrud, however, certain concrete at the facility has already began crumbling, and Sutter
Sanitation never explained why it is crumbling or what it will do
to avoid crumbling in other parts of
this facility.
A crumbling concrete floor at a grain storage facility probably poses little, if any,
environmental hazard.
A crumbling floor in a transfer station, where leachate is a fact ofdaily life
(C.188), is quite another matter, and Mr. Johnsrud’s testimony clearly discusses the environmental
hazards posed by such a condition.
Door and Ceiling Heights.
According to Mr.
Sutter, he can drive one of his little packer
trucks through this proposed facility with the bed fully raised,
and have four or five inches to spare.
(C.263).
As Landfill 33’s evidence shows, though, many other packer trucks would crash into
rafters, ceiling beams, or the doorways ofthe facility. (C.393-C.397).
Mr. Johnsrud explained that
in fact the issue is not whether an accidentwill happen, but when and
h~w
~
it will be. (C.250-
C.251).
Indeed, even Mr. Sutter admitted that this
small building poses a hazard for roll-off
containers!
(C.264).
Again, as Mr. Johnsrud explained, the problem is Sutter Sanitation’s attempt
to “retrofit” the specialized needs of a transfer station facility into a grain storage facility.
The
attempt has failed; someone is going to get hurt.
Facility Staffing.
In response to the significant issue concerning the ceiling and doorway
height, Mr. Sutter blithely remarked that it is important to keep the facility fully staffed at all times.
(C.264).
Conspicuously absent, either from the application or from any testimony from Sutter
Sanitation, is any specific indication ofhow many workers will be on site at what times.
Absent this
15
information, Mr. Suffer’s observation concerning the importance offacility staffing merely
underscores Mr. Johnsrud’~concern
that no commitment has been made to assure the facility is
adequately staffed. (C.252-C.254).
Leachate.
Sutter Sanitation made no efforts to calculate the specific amounts ofleachate it
will generate, norwhat specifically itwill do with that leachate (Mr. Suffer did say he will wash the
floor every day--C.188).
Indeed, Sutter Sanitation is not evenaware of whether, when the time
comes, it will be
able to find someone to accept the leachate and treat it! (C.268; see
~
C.267)
Mr. Johnsrud pointed out that even at a small transfer station, the floorswifi need to be washed
regularly, and washing the remains of small dumpings is no different than large dumpings, and can
generate a significant amount of leachate requiring disposition. (C.254-C.255)
Once again, this
oversight, unanswered and unrebutted in the record, is a serious situation waiting to happen.
Traffic.
Mr. Johnsrud pointed out that this small site, with the scale house in close
proximity to the road, and the tight turning radiuses into ~nd out of the proposed transfer station
facility, will potentially cause problems, and perhaps both traffic disruption and safety hazards.
(C.259).
In the event, for instance, one truck is stopped on the scales at a particular time, another
approaching truck will have no option but to wait on the road until the first truck is finished; there is
simply no place to
stage trucks on the site.
Moreover, Sutter Sanitation did not even provide a
traffic count ofthe anticipated number ofvehicles itwould receive from its recycling business~
to
compare with traffic issues relating to
the transfer station.
~çjLandfill
33, Ltd.’s attempted
inquiries into recycling issues were universally rebuffed by the
County Board.
Another traffic issue unaddressed by Sutter Sanitation’s materials is the impact offacility
traffic during the road restriction months (January through April) for the roadway approaching the
facility. (C.260-C.261).
Sutter Sanitation failed to discuss or identify any means of assuring that
overweight vehicles would not come to or leave from its facility, even during the months when the
roadway is posted as restricted weight limit.
Indeed, Sutter Sanitation’s response to these issues
was to inquire why itwould everwant to weigh outgoing trucks, as though the weight restriction
would not be an issue for the semi-trailers leaving the facility!
-
16
CONCLUSION
For the above reasons, Petitioner Landfill 33, Ltd., requests that this Board take the
following action:
1.
Rule that the Effingham County Board never obtained jurisdiction over the siting
application ofSutter Sanitation Services,
Inc., and so the proceedings before the County Board are
null and void;
2.
-
Rulethat the procedures adopted and employed by the Effingham County Board
deprived Landfill 33, Ltd., and other members of thepublic, of fundamental fairness of the
proceedings, and remand for wholly new proceedingsto provide all interested parties with an
opportunity to fully and completely review Sutter Sanitation Services, Inc.’s application, prepare for
the hearing and participate in the proceedings;
3.
Find that the ruling ofthe County Board, affirming the proposal ofSutter Sanitation
Services, Inc., was againstthe manifest weight ofthe evidencewith respect to Siting Criteria (1), (2),
(5),
(6), and (8), 415
ILCS
5/39.2(a)(i),
(ii), (v), (vi), and (viii)
Respectfully submitted,
LANDFILL 33, LTD.,
Petitioner,
By its attorney,
HEDINGER
LAW OF
E
~
~éphen
F.
eding~
Hedinger Law Office
1225 S. Sixth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
17
-
-
©~D
C~
U
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
pollution
Con
trcsl
Board
LANDFILL 33, LTD.,
)
)
Petitioner,
)
)
v.
)
PCB
03-43
)
(Third-Party Pollution
EFFINGHAM COUNTY
BOARD
and
)
Control Facility
)
Siting Appeal)
SU11I’ER SANITATION SERVICES,
)
)
Respondents.
)
STOCK&CO.,
)
)
Petitioner,
)
)
V.
)
PCB
03-52
)
(Third-Party Pollution
EFFINGHAM COUNTY BOARD and
)
Control Facility
)
Siting Appeal)
SU11I’ER SANITATION SERVICES,
)
)
Respondents.
)
CORRECTED
CLOSING BRIEF OF PETITIONER LANDFILL 33, LTD.
NOW COMES Petitioner, LANDFILL 33,
LTD.
(hereinafter “Landfill 33”), through its
undersigned attorney, and as allowed by Hearing Officer Order entered at the time of hearing in this
matter, hereby submits its closing brief.
This brief, consistent with Illinois law and Landfill 33’s petition filed in this case, seeks
reversal ofthe decision ofRespondent EFFINGHAM COUNTY BOARD (hereinafter “County
Board”), which affirmed an application submitted pursuant to 415 ILCS 5/39.2, ofthe Respondent
SUTTER SANITATION SERVICES, INC. (hereinafter “Sutter Sanitation”), for approval of a
transfer station to be located within Effingham County.
Landfill 33 challenges the decision on the
following grounds:
(1) Sutter Sanitation failed to comply with statutory prerequisites to secure the
jurisdiction ofthe County Board, and accordingly the County Board proceedings were
a nullity; (2)
the proceedings before the County Board deprived Landfill 33, and others, offundamentally fair
proceedings; and (3) the decision ofthe County Board is against the manifestweight of evidence
with respect to criteria 1, 2, 5, 6, and 8, 415 ILCS 5/39.2(a)(i), (ii), (v), (vi), and (viii).
Jurisdictional Issues
-
-
-
An application for local siting approval pursuant to Section 39.2 ofthe Illinois
Environmental Protection Act, 415 ILCS 5/39.2(b), must comply with certainstatutory notice
requirements, which have been held to be jurisdictional prerequisites.
In other words, failure of a
siting applicant to comply with the mandatory notice requirements
results in the local siting body
never obtaining jurisdiction over the proceedings, and thus any subsequent proceedings are null and
void.
Browning-Ferris Industries ofIllinois, Inc. v. Pollution Control Board, 162 Ill. App. 3d
801, 516 N.E. 2d 804
(5th
Dist. 1987); Kane County Defenders, Inc. v. Pollution Control Boarç~
139 Ill. App. 3d 588, 487 N.E. 2d 743
(2d Dist. 1985);
Concerned Boone Citizens. Inc. v.
M.I.G.
Investments, Inc., 144 Ill. App. 3d 334, 494 N.E. 2d 180 (2d Dist.
1986); Ogle County Board v.
Pollution Control Board, 272 Ill. App. 3d 184,
649 N.E. 2d 545 (2d Dist. 1995).
Each of these
cases, as well as many others decided by this Board, have construed the notice requirements,
including both the direct service ofnotice requirements and publication ofnotice requirements of
Sectioi~
39.2(b), and without exception these decisions have held these requirements to constitute
jurisdictional prerequisites.
-
-
In Land & Lakes Co.
v. Pollution Control Board,
PCB 91-7 (August 26, 1991), this Board
held that the p-re-hearing notice requirements set forth in Section 39.2(d) ofthe Illinois
Environmental Protection Act, 415
ILCS
5/39.2(d),
also constitutejurisdictional prerequisites
applicable to a siting proceeding.
This Board analogized the Section 39.2(d) requirements with
those discussed in Illinois Power Co.
v. Pollution Control Board, 137 Ill. App. 3d 449, 484 N.E.2d
898
(4th
Dist. 1985), in which the Court held that the Board’s failure the provide proper hearing
notice pursuant to Section
40 rendered the decision invalid.
Consequently, this Board held that
“the requirements of Section 39.2(d) of the Act are jurisdictional,
.
. .“
-
The Section 39.2(d) requirements include the following:
“At least one public hearing is to
be held by the County Board....
No later than 14 days prior to
such hearing notice shall be
published in
a newspaper ofgeneral circulation published in the county ofthe proposed site, and
2
delivered by certified mail to all members ofthe General Assembly from the district in which the
proposed site is located....”
-
In the Land
&
Lakes case, the siting authority, Village ofRomeoville, was determined to be
the party responsible for providing the notice, due to a village ordinance as well as the parties’
actual practice in the case.
In that August 26,
1991 order, this Board found that the Village had
failed to provide required notice ofthe hearing (the Board found that two legislators had not been
provided the statutory notice), and therefore ruled that the hearing was a nullity.
(Later, upon
a
motion for reconsideration, this Board vacated that order upon revelation by the Village,
as well as
the Intervenor‘Will County, that the notices actually had been delivered to the legislators in
accordance with the statute).
In this case, rather than the notice requirements falling upon the shoulders of the county,
Sutter Sanitation undertook the responsibility to provide the statutory notice.
The mailing notices
are found in the record at C.339-C.350;
in each instance, the “Sender” is identified as Sutter
Sanitation.
Moreover, the notices were accompanied by a letter, written on Sutter Sanitation
letterhead and signed by Sutter Sanitation, identifying the date of the hearing1 (C.353). S~~ii~
C.184-C.186 (hearing testimony concerning notices).
The hearing was held on August 14,
and pursuant to Section 39.2(d), delivery ofthese
notices had to have been accomplished by July
31 (“No later than 14
days prior to such hearing
notice shall be... delivered by certified mail...”).
Sutter Sanitation failed to comply with its statutory obligation.
Section 39.2(d) unambiguously requires that the notice be “delivered by certified mail to all
members ofthe General Assembly from the district in which the proposed site
is located....”
In
otherwords, by July
31, 2002 (14 days before the hearing), Sutter Sanitation was responsible to
have thenotice
“delivered by certified mail” to the legislators.
The record, though, reveals that
Suffer Sanitation, while having complied with the statutory requirements in most instances (its letter
was sent July 26, 2002), failed to assure that the notice was delivered to Senator N.
Duane Noland
1
The hearing had originally been scheduled for July 31, but was rescheduled for August 14.
3
until August 1,
2002. (C.345).
In an apparent effort to
remedy, Sutter Sanitation purports to have
had someone from its lawyers’ office hand-deliver the notice to Senator Noland on July 31, 2002
(C352), but obviously that notice is ineffective as failing to have complied with the statute.
(The
statute does not permit hand delivery, but requires certified mail delivery; clearly the legislative
intent is to avoid the necessity of probing into the bona fides ofpurported claims ofservice being
made by the agents and employees of siting participants).
Because even a single instance ofimproper notice renders proceedingsvoid, and because
Sutter Sanitation bore responsibility for seeing to
it that the notices were sent out in accordance with
the statute2, and because Sutter Sanitation failed to comply, these proceedings are void, and the
County Board ruling must be vacated.
Fundamental Fairness
Pursuant to Section
40.1 ofthe Illinois Environmental Protection Act, this Board is
authorized and obligated to consider the fundamental fairness of the local proceedings.
Landfill 33
challenges the proceedings before the County Board as having violated rights to fundamental
fairness, for the following reasons:
(1)
-
Recycling
Issues.
2
At this Board’s hearing, the hearing officer only allowed Landfill 33 to present additional evidence
on
this issue
(the testimony
of
Tracy Sutter, president of Sutter Sanitation, who
was
present in the hearing room) pursuant to an
offer of proof, based upon
Sutter Sanitation’s objection.
In
the
event Sutter Sanitation argues,
in responding to this
jurisdictional issue, that
it did not have responsibility for the hearing notices, or that some other party (such as the
County Board) did have that
responsibility, then Sutter Sanitation has waived its objection and the offer of proof
should be allowed in substantively.
(Mr.
Sutter’s
testimony, Tr. 62-Tr.
66, confirmed that Sutter Sanitation
assumed
and
bore the responsibility for providing the hearing notice; compare C.184-C.186).
Moreover,
35 Ill.
Adm.
Code 101.616(h)
requires discoveryamendment only when “the party learns that the response is in some
material respect incomplete or incorrect;” counsel for Landfill 33
learned of the discovery incompleteness after 6:30
p.m. (i.e.,
after business hours),
and the very next day, at hearing, informed all parties and the hearing officer.
Finally, Sutter Sanitation was not prejudiced by
Landfill 33’s confirmatory questioning regarding a jurisdictional
issue,
and certainly not if it seeks to dispute that sworn testimony (again, this offer of proofconfirms record evidence
at
C.339-C.350,
C.353, and testimony
at
C.184-C.186).
In addition, even if SutterSanitation is able to argue that the
Land
& Lakes results should apply here,
clearly
such an argument must fail.
The Land & Lakesresult occurred due to the deadlinefor hearing, which is
intended to protect and benefit the applicant, and it would be completely improper for this applicant to benefit by its
own wrongdoing.
Hence,
the Land & Lakes “automatic approval” result simply is unavailable here; instead, the
proper remedy for the jurisdictional violation is to vacate the proceedings--any other result would result in
fundamentally unfairproceedings.
4
Landfill 33 wasprovided fundamentally unfair proceedings through the County Board’s
refusal to allow Landfill 33 to address recycling issues which had been discussed by Sutter
Sanitation and more than one commenter, and were ultimately
relied upon by the County Board in
rendering its decision.
-
Specifically, early in the proceedings on August 14, the County Board chairman instructed
the audience that the proceedings were to concern themselves with Sutter Sanitation’s proposal to
site a transfer station, and nothing else. (C.132-C.133).
However, during his testimony Tracy
Sutter spoke at length about his recycling center (which is operated at the same location as the
transfer station), and in fact threatened the County Board that, if he were not granted the transfer
station siting approval, he would close down the recycling center. (C.190-C.193).
On the basis of
that testimony, when Landfill 33 was given the opportunity to present evidence, theyoffered to
present the testimony ofBrian Hayes to
address recycling issues that had been raised by Tracy
Sutter. (C.289).
The County Board chairman, though, instructed counsel for Landfill 33
to not
proceed with any such testimony, but assured counsel that the County Board would not consider
any aspects of recycling in their deliberations, and with that assurance Landfill 33 did not press the
issue. (C.289-C.290).
In point of fact, though, in its ruling approving Sutter Sanitation’s proposal
the County Board expressly considered this recycling issue, and in fact ruled
in Sutter Sanitation’s
favor on the basis ofthe recycling program. (C.432).
Indeed, at the hearing before this Board Ms.
Nancy Daters, a vocal supporter ofSutter Sanitation’s proposal insofar as it resulted in recycling
(sc~
C.414), indicated that the County Board’s vote was only about the recycling issue--according
to Ms. Daters, the recycling issue was the “elephant” in the room that everyone knew was present,
but many weren’t talking about.
According to her, the County Board chairman was ignored by the
other County Board members, who were present to concern themselves only with the recycling
issue. (Tr.
37- Tr. 38).
Accordingly, the record reveals clearly that Landfill 33 was deprived ofits opportunity to
address an issue which was pivotal in the County Board’s decision to grant approval to Sutter
Sanitation’s proposal.
Although the County Board chairman was correct in his statement that the
5
recycling issue should have been largely irrelevant to the siting issue (save only for the issue ofhow
those operations would effect the safety of the proposed facility), the fact that the Càunty Board
was concerned first and foremost with that issue resulted in absolutely unfair proceedings as to
Landfill 33, which requested an opportunity to address the issue but was prevented from doing so,
while at the same time being wrongly assured that no prejudice would occur.
Prejudice clearly did
occur, and Landfill 33 requests that these proceedings be reversed and remanded to the County
Board for wholly new proceedings.
(2)
Visits
by
County
and/or
Committee.
-
The record reveals that the County Board visited the transfer station site on Wednesday,
July
31, at 6:30 p.m. (C.109).
This visit was not publicly announced, and Landfill 33 was given no
opportunity to attend.
No record of that visit has been made at all,
in fact.
Moreover, Tracy Sutter
revealed that the County’s Waste Committee visited the site, and took notice ofthe facility’s
operations. (C.191).
Pursuant to Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App.
3d
84,
655
N.E. 2d 304
(4tI~
dist.
1995)
(Garman, J.), even if a site visit is acceptable, it ~
be
accompanied with notice to parties, to allow them to attend as well.
These site visits require a
reversal and vacation ofthe siting decision by the County Board3.
-
(3)
-
Amendment ofApplication.
-
As discussed more fully below, Sutter Sanitation’s application for siting approval contended
that a need existed not because regional disposal capacity was inadequate (in fact, the application
admitted that capacity “appears to be adequate to accommodate refuse capacities generated in
Effingham County and the surrounding area in the near future”), but rather because there was some
need to maintain “a method to transfer county generated waste to one or more ofthese facilities.”
(C.15).
Sutter Sanitation also claimed that this need was supported by Effingham County’s solid
waste management plan. (Id.).
After the hearing, though, and in fact atthe end ofthe public
comment period, and without giving notice to Landfill 33, Sutter submitted a public comment which
~See footnote
2 and the relief requested therein, which Landfill 33
requests
also
with respect
to
this issue in the
event Sutter Sanitation challenges the record evidence on
this issue.
6
for the first time contended that the proposed transfer station was necessaTy because Landfill 33
may have insufficient capacity.
~
C.369-C.370; C.376-C.386).
Because this new basis for need wasmade at the close ofthe public comment period,
Landfill 33 had no opportunity
to respond, or to probe into Sutter Sanitation’s intentions or
assumptions, nor to present contrary evidence or argument.
Section 39.2(e) ofthe Illinois Environmental Protection Act, 415 ILCS 5/39.2(e), permits
applicants to make only a single amendment to their application, and that must be made prior to
completion of the applicant’s presentation of evidence at hearing, and even then the decision
deadline is to be extended by 90 days.
Here, ofcourse,
Sutter Sanitation’s amendment was made
some 30 days ~
the hearing.
This behavior completely deprived Landfill 33 of the opportunity to address the scurrilous
allegations made by Sutter Sanitation.
Landfill 33 lost the opportunity to cross examine as well as
to present its own evidence.
This is highly improper; more than that, itwas fundamentally unfair.
These proceedings should be started anew, to allow all participants the statutory amount of time to
consider the application which Sutter Sanitation, in the end, presented to the County Board.
Manifest Weight of the Evidence
The County Board’s decision was also against the manifest weight ofthe evidence with
respect to
atleast five siting criteria, and for that reason should be reversed, and Sutter Sanitation’s
proposal denied.
(1)
The “Need” (Criterion 1) and
Solid
Waste
Plan
Consistency (Criterion 8) Criteria
Sutter Sanitation combines its criterion 2 analysis (requiring a showing that the proposed
facility “is necessary to accommodate the waste needs ofits
intended service area”) with its
discussion of the consistency ofits proposal with Effingham County’s Solid Waste Management
Plan, pursuant to the eighth siting criterion.
415 ILCS 5/39.2(a)(i) and (viii).
Sutter Sanitation’s
application begins by asserting a service area of approximately 30 to 50 miles from the location of
the proposed transfer station--”This radius is based upon the economical distance a refuse
7
collection vehicle can travel on a routine basis, in addition to the location ofrefuse disposal facilities
outside ofEffingham County.” (C.14).
Sutter Sanitation provided a map showing this distance,
alongwith landfills and other solid waste management facilities located within that radius. (C.17).
Suffer Sanitation then acknowledged that two landfffls, the Salem Municipal Landfill and Landfill
33, Ltd., are located within 30 miles ofthe transfer station location (Landfill 33, Ltd., is so close that
Suffer Sanitation didn’t even identify the distance). (C.17; see
~
C.141).
Six additional facilities,
some with substantial capacities, are located within the 50 mile range,
including the Coles County
Landfill, the Wayne County Landfill, the D & L Landfffl, the Litchfield Landfill,
and the Five Oaks
Landfill.
(C.18; C.141-142).
Based upon the Illinois Environmental Protection Agency’s 2000
Annual Report,
Sutter Sanitation identified the reported remaining capacities for these’ eight
facilities.
(C. 14).
The estimated lifespans ofthe facilities ranged from less than one year,
all the
way
up to 45 years.
The Application acknowledged that the Landfill 33, Ltd., lifespan was 7 years
(later, though, Sutter Sanitation admitted that Landfill 33, Ltd., had recently received an expansion
and consequent permitting, and that the current lifespan for the facility is 29 years).
Following presentation of this information, the application states:
“As can be noted, the
regional waste disposal capacity appears to be adequate to accommodate refuse capacities generated
in Effingham county
sic
and the surrounding area in the near future, however, the current dilemma
exists in maintaining a viable out of county waste disposal source and method to transfer county
generated waste to one or more ofthese facilities.
Again, it is noted that conventional refuse
collection vehicles cannot routinely travel excessive distances without significant operation and
maintenance costs.
Therefore, it is common and practical for waste to be transferred from collection
vehicles to transfers trailers
sic,
or similar containers, which in turn are transported to the waste
disposal location.
This method of operation also allows more productive use of collection
vehicles.” (C.15).
During its testimony, Sutter Sanitation’s “needs” expert reiterated this theory
of necessity:
“As can be noted, the regional waste disposal--again, regional waste disposal capacity
appears to be adequate.
In otherwords, that waste capacity within the 50-mile radius appears to be
adequate to
accommodate the refuse generated in Effingham County and the surrounding area in
8
the near future,.
However, as we see it, the current dilemma
is in maintaining a viable, out-of-county
waste disposal source and a method to transfer county-generated waste to one
or more ofthese
facilities.” (C. 142-C.143--testimony of David Kimmie).
The “needs” analysis of Sutter Sanitation, from that point, shifted into a discussion of the
Effingham County Solid Waste Management Plan; according to the application, the County
Plan
stated the preference “to support the disposal ofwaste generated in the county at in-county and
out-of-county landfills.
As stated above, to economically access out-of-county landfills, a waste
transfer station is needed.” (C.15).
Mr. Kimmie’s testimony similarly continued:
“The regional
waste management plan for Effingham that we referenced earlier dated 1995 is
a plan, as I said
earlier, developed
and adopted by the county board to address the management ofwaste generated
in Effingham County.
Reference to that plan will indicate that
is the county board’s intention to
support the disposal ofwaste generated in the county at in-county and out-of-county landfills.
Economically, access out-of-county landfills, we feel that
a waste transfer station is needed.”
(C. 143).
Based upon Sutter Sanitation’s own work product, it is clear that there is no “need” for
this facility; the proposed transfer station is clearly not necessary to accommodate the waste needs
of its intended service area.
Indeed, Sutter Sanitation’s own evidence acknowledges sufficient
capacity to accommodate the waste needs.
The only justification for the siting proposal is the
purported “dilemma” to maintain “a viable out ofcounty waste disposal source and a method
to
transfer county generated waste to one or more ofthese facilities.” (C.15).
Taken separately, this
purported “dilemma” does not even exist, let alone constitute a basis for finding a “need” for the
proposed facility.
Nothing about Sutter Sanitation’s proposal supports the view that without this
transfer station, the out-of-county disposal facilities might not be
“viable.”
Nothing in Sutter
Sanitation’s materials support the apparent assumption that these out-of-county facilities might fail,
or otherwise become unviable, without this transfer station.
To the contrary, in fact, Mr. Kimmle’s
testimony acknowledged both that each ofthese out-of-county facilities have substantial airspace
available, and that each already services a large service area. (C.143-C.144).
9
More to the point, though, is that Sutter Sanitation’s burden was to prove that the service
area needs the transfer station, not that the out-of-county facilities need it.
Furthermore, Sutter Sanitation’s
own evidence refutes its assertion that the transfer station
is needed to provide “a method to transfer county generated waste to one or more of these
facilities.”
Its assumption is’ that a 30 to 50 mile range is “the economical distance a refuse
collection vehicle can travel on a routine basis.”
Its own evidence shows that these out-of-county
facilities are each located 50 miles or less from the location ofthe transfer station.
Thus, these
facilities can already be economically accessed, without any reason for creating a transfer station.
Utilizing Sutter Sanitation’s own assumptions and materials, Don Sheffer, a professional
engineer who assisted Effingham County in drafting it Solid Waste Management Plan (see C.202-
C.204), demonstrated that virtually
any
location within the service area is within 30 miles ofthe
largest ofthe landfills identified by Sutter Sanitation. (C.210; C.363).
Indeed, even if, for some
reason, Landfill 33, Ltd., was removed from the discussion (which apparently is Sutter Sanitation’s
intention), virtually every location within Sutter Sanitation’s service area is located within less than
50 miles ofone ofthose landfills. (C.210-C.211; C.364).
(And of course, with Landfill 33, Ltd.,
the distances are much closer to the nearest landfill).
Notably,
though, even without the work
product of Mr.
Sheffer, Sutter Sanitation’s own evidence reveals there is simply no “need” for this
facility--this transfer station is not, by
Sutter Sanitation’s own evidence and admissions, necessary
to accommodate the waste needs ofits service area.
Whether it might be convenient or handy for
Sutter Sanitation, or more profitable for Sutter Sanitation, is not the issue.
The service area simply
does not need this facility.
Similarly, Sutter Sanitation’s analysis ofthe eighth siting criterion is unsupportable.
According to the application and Mr. Kimmie, the proposed transfer station is necessary because
the
Solid Waste Management Plan supports disposal ofEffingham County waste
at in-county and
out-of-county facilities, and Suffer Sanitation contends its transfer station is necessary to cost-
effectively
transportwaste from Effingham County to these out-of-county facilities.
10
In the first place, though, Sutter Sanitation’s apparent service area is not co-extensive with
Effingham County, but to the contrary extends in a radius of 50 miles surrounding the proposed
location of the transfer station (which is located in the extreme southwest corner of Effingham
County).
(~
C.17).
The service area accordingly incorporates portions ofaround twenty counties
in addition to Effingham County.
Hence, even if Effingham County’s Solid Waste Management
Plan said what Sutter Sanitation contends it says, that issue is not relevant to whether Sutter
Sanitation’s proposed service area needs this facility (and, as discussed above, Sutter Sanitation’s
own evidence reveals that it does not).
Second, Sutter Sanitation’s assertion that the Effingham County Solid Waste Management
Plan infers a need for a transfer station overlooks most ofthe Solid Waste Management Plan, and
does not even focus on any language which clearly suggests a need for a transfer station.
Nowhere
in the plan,
in fact, is such a need or desire asserted.
Sutter Sanitation’s analysis consists of acknowledging the Solid Waste Management
Plan’s recognition that “all waste collection service in Effingham County is provided by private
haulers.
These haulers have the right to choose the landfill(s) at which they dispose of the waste
they collect.” (C.71, quoting page 6-41 of the Plan).
Sutter Sanitation makes a leap of logic, and
infers that due to the encouragement of the use ofout-of-county waste facilities, “based on
economics,” to economically utilize
an out-of-county facility “a solid waste transfer station is
needed.”
(C.71).
Ofcourse, this is not true--the 50 mile “economical transport” radius
established by Sutter Sanitation is easily met, without
any
transfer station.
With respectto the Plan, though, the more significant point is that Sutter Sanitation’s
analysis completely ignores the fact that the Plan expressly considered the possibility oftransfer
stations,
and excluded those; the out-of-county facility recommendation is premised upon direct
haul, not transfer station utilization.
Indeed, the very page ofthe plan cited by Sutter Sanitation
reveals that “all
Effingham County waste that
is disposed of in landfills is currently hauled
directly to
either Landfill No.
33 in Effingham County or the ERC Landfill in
Coles County,” and
“the
basic recommendation for landfill disposal ofEffingham County waste over the twenty year
11
planning period is to
continue to use the two landfills discussed above.” (Solid Waste Management
Plan, at 6-41; see C.366).
The specific yearly components, noted on the remainder ofthat page of
the Plan as well as the following page, clearly indicate that direct haul to those two facilities is the
County’s preferred method ofwaste disposal, and that “the
Plan does not list any new programs
or facilities to be developed during the years 2-4 and 5-10 period.” (C.366-C.367)
The meaning ofthe Plan,
in fact, is enhanced by consideration ofan earlier portion ofthe
Plan document, in which various Landfill Disposal options were discussed.
Specifically, the Plan
considered four separate
mechanisms for Landfill Disposal--(1) “the continued direct hauling of
waste to in-county and out-of-county landfills;” (2) “expansion ofthe existing in-county and/or
out-of-county landfills;” (3) “construction ofa new in-county landfill;
and” (4) “construction of
an in-county transfer station for transport of local waste to out-of-county landfills.” (Plan, at 3-25;
see C.365).
Obviously, the proposal of Sutter Sanitation falls within the category (4) above (an in-
county transfer station to transport waste out-of-county), but as Sutter Sanitation itself is forced to
admit, the Plan rejected that proposal, and opted solely for the first option, along with ultimate
adoption ofthe second (i.e., continued utilization through direct haul ofboth in-county and out-of-
county landfills, along with expansion of existing facilities at the appropriate time).
Again, nothing
in any portion ofthe Plan in
any
way or to any degree supports a contention that the Plan supports
an in-county transfer station to haul to out-of-county landfills.
This was explained by Don Sheffer, who was instrumental in developing the county Solid
Waste Management Plan. (C.213-C.216).
Mr. Sheffer explained, as discussed above, that although
Effingham County considered the possibility of developing a transfer station to haul waste out of
Effingham County, the Plan as adopted rejected that proposal, and instead proposed only the
continued utilization ofexisting landfills through direct haul, alongwith expansion ofthose
facilities as needed.
Sutter Sanitation’s proposal is neither an expansion of an existing landfill facility, nor a
continuation of existing disposal patterns.
It is a brand neweffort,
one that the Effingham County
planners considered but
rejected.
It should havebeen rejected this time by the Effingham County
12
Board, for failing to comply with both criterion
1 and criterion 8;
it is now up to this Board to
rule
that the County Board’s decision on these two criteria was against the manifestweight ofthe
evidence, and cannot stand.
(2) Criteria 2
(Health/Safety/Welfare),
5
(Plan of Operation) and 6
(Traffic Patterns).
A number ofpoints were raised by Landfill 33, Ltd.’s transfer station expert, Bryan
Johnsrud,
concerning deficiencies of the proposed transfer station facility with respect to criterion 2
(that the facility is so located, designed, and proposed to be operated that the public health, safety
and welfare will be protected), criterion
5
(that the plan ofoperationswill minimize the danger of
fire, spills, or other operational accidents),
and
criterion 6 (that the traffic patterns to and from the
facility will minimize impact upon existing traffic patterns).
(S~
415 ILCS 5/39.2(a)(ii), (v), and
(vi)).
This testimony was virtually unchallenged, unrebutted and unanswered by Sutter Sanitation,
to the extent discussed below.
Hence, this is not a situation where the County Board chose to
accept certain testimony over other competing or contradictory testimony, but to the contrary this is
a situation in which the County Board, for whatever reason, simply refused to accept unrebutted
testimony.
Their decision on these points, therefore, is unquestionably against the manifest weight
ofthe evidence.
See Industrial Fuels
& Resources/Illinois, Inc.
v. Pollution Control Board, 227 Ill.
App.
3d 533, 592 N.E. 2d 148
(1St Dist.
1992).
Location Standards--Pursuant to Section 22.14 ofthe Illinois Environmental Protection Act,
415 ILCS
5/22.14, it is unlawful for anyone to establish a transfer station within
1,000 feet of a
dwelling.
Clearly a violation ofSection 22.14 is, as a matter of law,
a violation of the second siting
criterion.
Here Sutter Sanitation’s own documentation reveals the existence of a dwelling less than
200 feet from. the building that will house this proposed transfer station! (C.238).
In fact, the house
even has a swimming pool!
(C.239).
Sutter Sanitation has admitted the existence ofthis dwelling,
but claims that it will not allow anyone to live there, but instead the building will be
used as offices.
Clearly this is insufficient; the statute (Section 22.14) outlaws’transfer stations near a “dwelling,”
and is silent upon any obligation that the dwelling be occupied.
Indeed, the suggestion is nullified
by the additional statutory prohibition on such transfer stations being located within 1,000 of
13
property zoned for residential use--the statute clearly, in that instance, does not require actual
building’s or occupancy,
so clearly the legislature did not intend
any
such limitation with respect to
the
“dwelling” aspect of the setback rule.
The structure was built to be
a house, could at any time
be utilized as a house, and is clearly a “dwelling,” as is emphasized and underscored by the
swimming pool gracing its properties.
This is a prohibited location for this
proposed transfer
station.
(In addition, it has come to light that a dwelling also exists across the road from this
facility, although the County Board refused to accept evidence relating to that structure. (See Tr. 39-
Tr. 42)).
This would seem to rise to ajurisdictional level--the statute, after all, does not prohibit
sucha structure as a matter ofsiting, but rather prohibits anyone from establishing such a facility.
As a matter ofjurisdiction, fundamental fairness,
and
manifest weight ofthe evidence, this proposal
should be disqualified.
Wood Framing.
Sutter Sanitation has admitted that the interior ofthis building is made of
wood.
As Mr. Johnsrud testified, this is improper building materials for the interior of a transfer
station, againstwhich waste will be dumped,
scraped and pushed in normal, everyday transfer
station operations.
As Mr. Johnsrud explained, this building was built and designed as a grain
storage facility, and Sutter Sanitation’s
attempt to
turn
it into a transfer station has left numerous
unacceptable features, including the wood framing.
In addition, Mr. Johnsrud noted the absence of
any “pushwalls” within the facility (hard walls against which a scraper
can
push waste, in order to
scoop it into the appropriate receptacle). (C.245-C.246),
Although Sutter Sanitation had
opportunity
to inform the County Board of either the existence of such push walls or the intention
to install them, or ofthe intention to remedy the wooden members ofthe structure, Sutter Sanitation
never did so.
Fire Dangers.
In addition, the wooden interior ofthe structure poses a greater risk of fire,
and
the rural location ofthis former grain facility wifi make it much more difficult for fire
professionals to
respond to any fire emergencies.
In addition, the rural location reveals a lack of
adequate water resources,
another point that Sutter Sanitation has conceded.
(C.246-C.247).
14
Floor Thickness.
Mr. Johnsrud noted the absence ofinformation in the application
concerning the thickness of the floor ofthe former grain storage facility. (C.246).
Incredibly, Mr.
Sutter, president of Sutter Sanitation, had no idea how thick the floors were. (C.268).
Subsequently, however, Sutter Sanitation submitted a “public comment” that asserts that borings
ofthe concrete revealed a
9.5
inch thick concrete surface that slopes toward one direction (the
direction Sutter Sanitation proposes for leachate to head). (C.387).
As pointed out by Mr.
Johnsrud, however, certain concrete at the facility has already began crumbling, and Sutter
Sanitation never explained why it is crumbling or what it will do to avoid crumbling in
otherparts of
this facility.
A crumbling concrete floor at a grain storage facility probably poses little, if any,
environmental hazard.
Acrumbling floor in a transfer station, where leachate is a fact of daily life
(C.188), is quite anothermatter,
and Mr. Johnsrud’s testimony clearly discusses the environmental
hazards
posed.by such a condition.
Door and Ceiling Heights.
According to Mr. Sutter, he can drive one ofhis little packer
trucks through this proposed facility with the bed fully raised, and have four or five inches to spare.
(C.263).
As Landfill 33’s evidence shows, though, many other packer trucks would crash into
rafters,
ceiling beams, or the doorways of the facility. (C.393-C.397).
Mr. Johnsrud explained that
in fact the issue is not whether an accident will happen, but when and
h~wi~i
it will be. (C.250-
C.251).
Indeed, even Mr. Sutter admitted that this small building poses a hazard for roll-off
containers! (C.264).
Again, as Mr. Johnsrud explained, the problem is Sutter Sanitation’s attempt
to “retrofit” the specialized needs of a transfer station facility into a grain storage facility.
The
attempt has failed; someone is going to get hurt.
Facility Staffing.
In response to the significant issue concerning the ceiling and doorway
height, Mr. Sutter blithely remarked that it is important to keep the facility fully staffed at all times.
(C.264).
Conspicuously absent, either from the application or from any testimony from Sutter
Sanitation, is any specific indication ofhow many workers will be on site at what times.
Absent this
information, Mr. Sutter’s observation concerning the importance offacility staffing merely
15
underscores Mr. Johnsrud’s concern that no commitment has been made to assure the facility is
adequately staffed. (C.252-C.254).
Leachate.
Sutter Sanitation made no efforts to calculate the specific amounts~
ofleachate it
will generate, nor what specifically itwifi do with that leachate (Mr. Sutter did say he will wash the
floor every day--C.188).
Indeed, Suffer Sanitation is not even aware ofwhether, when the time
comes, it will be able to find someone to accept the leachate and treat it! (C268; see
.ai~
C.267)
Mr. Johnsrud pointed out that even at a small transfer station, the floorswill need to be washed
regularly, and washing the remains of small dumpings
is no different than large dumpings, and can
generate a significant amount of leachate requiring disposition. (C.254-C.255)
Once again, this
oversight, unanswered and unrebutted in the record, is
a serious situation waiting to happen.
Traffic.
Mr. Johnsrud pointed out that this small site, with the scale house in close
proximity to the road, and the tight turning radiuses into and out of the proposed transfer station
facility, will potentially cause problems, and perhaps both traffic disruption and safety hazards.
(C.259).
In the event, for instance, one truck is stopped on the scales at a particular time, another
approaching truckwill have no option but to wait on the road until the first truck is finished; there is
simply no place to stage trucks
on the site.
Moreover, Sutter Sanitation did not even provide a
traffic count ofthe anticipated number of vehicles it would receive from its recycling business to
compare with traffic issues relating to the transfer station.
And Landfill 33, Ltd.’s attempted
inquiries into recycling issues were universally rebuffed by the County Board.
Another traffic issue unaddressed by Suffer Sanitation’s materials is the impact of facility
traffic during the road restriction months (January through April) forthe roadway approaching the
facility. (C.260-C.261).
Sutter Sanitation failed to discuss or identify any means ofassuring that
overweight vehicles would not come to or leave from its facility, even during the months when the
roadway is posted as restricted weight limit.
Indeed, Sutter Sanitation’s response to these issues
was to inquire why it would ever want to weigh outgoing trucks, as though the weight restriction
would not be an issue for the semi-trailers leaving the facility!
16
CONCLUSION
For the above reasons, Petitioner Landfill 33, Ltd., requests that this Board take the
following action:
1.
Rule that the Effingham County Board never obtained jurisdiction over the siting
application of Sutter Sanitation Services, Inc., and so the proceedings before the County Board are
null and void;~
2.
Rule that the procedures adopted and employed by the Effingham County Board
deprived Landfill 33, Ltd., and other members ofthe public, offundamental fairness ofthe
proceedings, and remand for wholly new proceedings to provide all interested parties with an
opportunity to fully and completely review Sutter Sanitation Services, Inc.’s application, prepare for
the hearing and participate in the proceedings;
3.
Find that the ruling ofthe County Board, affirming the proposal of Sutter Sanitation
Services, Inc., was against the manifest weight of the evidence with respect to Siting Criteria (1), (2),
(5),
(6), and (8), 415 ILCS 5/39.2(a)(i), (ii), (v), (vi), and (viii)
Respectfully submitted,
LANDFILL 33, LTD.,
Petitioner,
By its attorney,
HEDING1~R
LAW OFFICE
-
~“I~
~
~‘phen
F. Hê~’ger
/~
,“
Hedinger Law Office
1225 5. Sixth St.
Springfield,
IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
17
