BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDCLER!S
OFr1’~
M/~Y
1
9
2003
VILLAGE OF SOUTH ELG1N,
)
STATE OF
ILLINOIS
P~ll~tjo~
Control Board
Complainant,
)
No. PCB 03-106
)
vs.
)
(Enforcement)
)
WASTE MANAGEMENT OF ILLINOIS, iNC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Mr. Derke J. Price
ANCEL, GUNK, DIAMOND,BUSH, DICANNI
&
ROLEK, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois
60603
PLEASE TAKE NOTICE that on May 19, 2003, wefiledwith the Illinois Pollution Control
Board,
the
attached,
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.’S
ANSWER
AND
AFFIRMATIVE DEFENSES
TO
COMPLAINT, in the above entitled matter.
WASTE MANAGEMENT OF ILLNOIS,
INC.
Donald
J.
Moran
Lauren Blair
PEDERSEN
&
HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois
60601
(312) 641-6888
Attorney Registration No. 1953923
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366225
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May 19,
2003
PROOF OF SERVICE
Nadia
I. Mirza,
a non-attorney,
on
oath states
that
she served
the
foregoing, WASTE
MANAGEMENT OF ILLINOIS,
INC.’S ANSWER AND AFFIRMATIVE DEFENSES
TO
COMPLAIN,
on the following parties by depositing same in the U.S.
mail at
161
N. Clark St.,
Chicago, Illinois 60601, at 5:00 p.m.
on this
19th dayofMay, 2003:
Mr. Derke J. Price
ANCEL,
GL1NK,
DIAMOND, BUSH,
DICANNI
&
ROLEK, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois
60603
C,
Nadia I. Mirza
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~
366225
vi
May
19,
2003
2
RECE~vED
CL~R~~S
QFPT’P
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
M~Y1
92003
VILLAGE OF SOUTH ELGIN
)
STATE OF ILLINOIS
a Municipal corporation,
)
Pollution
Control Board
)
Complainant,
)
)
No. PCB 03-106
V.
)
)
(Enforcement)
WASTE MANAGEMENT OF ILLINOIS, INC.
)
)
Respondent.
)
ANSWER & AFFIRMATIVE DEFENSES
TO COMPLAINT
Respondent Waste Management of Illinois,
Inc.
(“WIvIII”), by
and through its
attorneys,
Pedersen
& Houpt, P.C., for its answer and affirmative defenses to the Complaint of Complainant
Village ofSouth Elgin
(“Village”), states as follows:
(Preamble)
Complainant, Village of South Elgin
(“Villaget’), by
its
attorneys,
ANCEL, GUNK, DIAMOND,BUSH, DICIANNI & ROLEK, P.C.,
pursuant to Section 5/31(d) ofthe Environmental Protection Act, 415
ILCS
5/31(d),
seeks
a
determination
that
respondent
Waste
Management
of
Illinois,
Inc.
is
in
violation
of
the
terms
and
conditions ofthe sitingpermit for the Woodland ifi expansion on the
Woodland Site, granted September
13,
1988
by
the
Kane
County
Board
through
Resolution
No.88-155
(attached
as
Exhibit
1
and
incorporated herein),insofar as Respondent’s present application and
appeal
(PCB
03-104)
seeking
to
add
a
second
pollution
control
facility (a transfer station)
to the Woodland Site constitutes:
(1)
a violation of the terms of Condition 4 of Resolution 88-155
providing:
“The site, commonly known as the Woodland site, shall
not be
expanded further;
(2)
a
violation
of
WMII’s
representation
incorporated
in
Condition
2
of Resolution
88-155
that:
“Waste
Management
of
Illinois, Inc., agrees and stipulates that this expansion will be the last
expansion that we will attempt to do on this site which is commonly
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known as the Woodland Landfill site”; and
(3)
a violation ofthe Condition--imposedby Kane County and by
35
Ill. Admin.
Code
807.206--to
implement the promised end-use
plan designating the area now proposed forthe transfer station
to be
reéonstructed as a passive recreation park.
ANSWER (to Preamble):
To
the extent
the
preamble to
the
Complaint asserts legal
conclusions, WPvHT states that
an
answer is neither necessary nor appropriate.
WMTI denies the
remainder of the preamble to
the Complaint.
1.
The Village of South
Elgin,
a municipal
corporation,
is
in
Kane County, Illinois.
ANSWER:
WIvifi admits the allegations contained in paragraph
1.
2.
The WoodlandLandfill siteis located in unincorporated Kane
County,
adjacent to the municipal
boundary of the Village,
next to residential neighborhoods of the Village. The site--a
formerquarry--was initially established as apollution control
facility in
1976 and consists of a total of213 acres.
In 1976,
IEPA permitted the use of 55 acres for landfill (“Woodland
I”).
In
1982,
the
site
was
expanded by
adding
48
acres
(“Woodland
II”).
ANSWER:
W~1\’ffl
admits the allegations contained in paragraph 2.
3.
In 1988, Waste Management ofIllinois, Inc.
(“‘WMII”) filed
an application with Kane County to furtherprolong the life of
the landfill for an
additional
15
years
by
working the area
between Woodland I and II
(this
application
is
commonly
referred to
as the
“Woodland
ifi”
application).
The
Kane
County
Board
adopted Resolution
88-155
approving, with
conditions,
the Woodland ifi application
(Certified copy of
the
Resolution
is
attached
and
incorporated
herein
by
referenceas Exhibit 1), including conditions that requiredthe
Site be developed as a passive recreation park once itwas full
and closed.
ANSWER:
WTvffl
admits that WIVIlT filed an
application with Kane County in
1988 to
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expandthe WoodlandLandfillby a vertical expansion of20 acres oftheWoodlandII waste footprint
and a horizontal expansion of 28 acres between Woodland I and Woodland II (“Woodland
ifi”).
WMIII further admits that Woodland ifi was granted local siting approval pursuant to County Board
Resolution
88-155 (“Resolution”),
which
is
the best evidence of the Resolution’s contents
and,
therefore, W1VflI refers to theResolution fora complete and accuraterecitation-ofits contents. WIvffl
denies the remaining allegations contained in paragraph 3.
4.
In June, 2002, WMJTre-filed a SiteLocation Application for
Woodland
Transfer Facility
(originally filed
in
February,
2002)
with
the Kane
County
Board.
In
this
application,
WMTI
proposed
to
locate a
transfer station
facility
on
the
Woodland
Site
(although
the
entire
application
is
too
voluminous to
attach hereto, a portion of the application is
attached as Exhibit
2).
A map showing the location of the
proposed transfer station
on the Woodland Landfill site is
attached as Exhibit 3.
ANSWER:
WMIT admits that WIVIH fileda SiteLocation Application (“Application”) on
June 14, 2002
seeking to
site an 8.9-acre parcel of the Woodland Landfill site for use as a waste
transferstation.
W~vffl
furtheradmits that documents entitled Exhibit 2 and Exhibit 3 were attached
to
the
Complaint,
but
states
that
the
June
14,
2002
Application
is
the
best
evidence
of the
Application’s contents and, therefore, refers to theApplicationfora complete and accurate recitation
of its contents.
5.
Following months ofpublic hearings, theKane County Board
overwhelmingly denied WIvffl’s
application for the transfer
station.
On or aboutJanuary 14,2003, however, W~vffl
filed
its Petition forHearing To Contest SiteLocation Denial with
this Board, No. PCB 03-104, requesting a hearing to contest
the
decision
of the
Kane
County
Board.
A
copy
of the
Petition (without exhibits)
is attached hereto as Exhibit 4.
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ANSWER:
WMII admits that, following a public hearing, WMLI’sApplicationwas denied
by the Kane
County Board on December
10, 2002,
and that on January
14, 2003,
W1’vffl filed its
Petition for Hearing To
Contest Site Location Denial with this Board, No. PCB 03-104 (“Petition
forReview”), requesting a hearingto contestthe decision of the Kane County Board.
W1Vififurther
admits that a document entitled Exhibit 4 was attached to the Complaint, but states that Petition for
Review is the best evidence ofthe PetitionforReview’s contents and, therefore, refers to thePetition
for Review for a
complete and
accurate recitation
of its
contents.
WIvffl denies the remaining
allegations contained in paragraph
5.
6.
WlVffl’s persistent
attempt
to
site a
transfer
station
at
the
WoodlandSite constitutes abreach ofthe Conditionsimposed
by
Kane
County
when
approving
the
Woodland
ifi
application.
More specifically, Condition 4 mandated:
“The site,
commonly known as the Woodland Site,
shall not be expanded fhrther.” (Exhibit 1)
ANSWER:
WN’ffl denies the allegations contained in
paragraph 6.
Further answering,
WJvffl
states that the Resolution
is
the best evidence of the Resolution’s contents and,
therefore,
refers to the Resolution for a complete and accurate recitation of its contents.
7.
Further, Condition
2
of Kane County Board Resolution No.
88-155 required:
“That
the site will be
developed
and
operated in
a
manner consistent
with the representations made
at
the public heanng on this matterheld on July26,
1988
and
to
all
applicable
laws,
statutes,
rules
and
regulations of the Illinois Environmental Protection
Agency, and the Illinois Pollution Control Board, or
their successors, as may be now or hereafter in effect
and which are applicable to this
site.”
(Exhibit 1)
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ANSWER:
WMII states
that
the
Resolution
is
the best
evidence of the Resolution’s
contents and, therefore, refers to the Resolution for a complete and accuraterecitation ofits contents.
8.
Among the representations readinto the recordofthe July 26,
1988
public
hearing--subsequently
incorporated
into
Condition 2--were the representations ofWIV11I set forth in
a
July 8,
1988 letter from
WMH to the Village of South Elgin
in
which
WPvffl
promised
(among
other
things)
that
the
Woodland ifi request “will be the last expansion that we will
attempt
to
do
on
this
site,
which
is
known
as
Woodland
landfill
site.”
(Relevant
portion
of the
transcript
of
the
hearing
in
which
W1\iffl
read
the letter into the
record
is’
attached hereto as Exhibit
5.)
The
July
8,
1988
letter
was
attached
to
and
incorporated
into
Resolution
88-155
as
Exhibit B thereto.
(See Exhibit
1)
ANSWER:
W\411
states
that
the Resolution
and
the hearing transcripts
are the
best
evidence ofthe Resolution and hearing transcript’s contents and, therefore, refers tO the Resolution
and the hearing transcript fora complete and accuraterecitation oftheir contents.
WI’vfll denies the
remaining allegations contained in paragraph
8.
9.
Similarly, in its 1988 siting application forWoodland ifi and
at the public
hearing on the application,
WIvifi detailed its
proposed end-use (closure) plan for the
site.
Such a plan
is
required by
35 Ill. Admin. Code
807.206.
In its
materials,
Wlvffl represented that:
“Upon completion the site
will
be
comprised sic
of a combination of filled land and unfilled
land, which
will be left, essentially, in
a natural
state.
.
.
A
major
component of the
end
use
proposal
is
to
allow for
hiking
and
bicycle riding across
this large
open
space...”
(W1~vffl’s
application
materials concerning the End Use Plan
are attached hereto as Exhibit 6.)
ANSWER:
W~vfflstates
that
the
Application
and
the
hearing transcript
are the best
evidence
of the
Application
and
the
hearing
transcript’s
contents
and,
therefore,
refers
to
the
Application and the hearing transcript for a complete and accurate recitation of theircontents.
The
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second sentence of paragraph 9 contains
a legal conclusion to which an answer is neither necessary
nor appropriate.
10.
Concerning
the
end-use
plan,
\VMII
made
the
following
representations
at the July
26,
1988
public
hearing (again,
these representations are, through Condition 2, conditions of
approval):
“Woodland ifi proposal encompasses
the entire
site
and looks
at a final land use plan
on that
land form
that is a passive recreational use. It incorporates some
ofthe surrounding facilities or surrounding land uses
into the final land use plan. The original Woodland I
and
Woodland II
final
land
use
plans
weren’t
as
comprehensive or as detailed in theirfinal form.”
The
relevant portion
of the
July
26,
1988
hearing
transcript is attached hereto as Exhibit 7.
ANSWER:
WVffl
states that the hearing transcripts are the best evidence ofthe hearing
transcript’scontents and, therefore, refers to theentire -hearingtranscript for a complete and accurate
recitation ofits contents.
To the extent paragraph
10 asserts legal conclusions, WN’ffl states that an
answer is neither necessary nor appropriate.
11.
Contrary
to the terms of its site permit, WMIII has filed with
the Kane County Board a site application for a new transfer
station
on
nine
acres
of
the
Woodland
site,
which
will
“process,
consolidate,
store
and
transfer
non-hazardous
municipal
waste,
including
landscape
waste
and
general
construction
or
demolition
debris
from
residential,
commercial and industrial waste generators,”
which will be
capable of processing 2,640 tons per day. (Exhibit 2.)
ANSWER:
W~vffl
denies that the filing of its Application is
contraryto the terms ofthe
site permit.
Further
answering,
WIvifi states
that
the Application is
the best
evidence
of the
Application’s contents and, therefore, refers to theApplication fora complete and accuraterecitation
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of its contents.
12.
Section
5/39.2(e) of the
Illinois
Environmental
Protection
Act, 415 ILCS 5/39.2(e), provides that “In granting approval
for a site, the county board... may impose such conditions as
may be reasonable and necessary to accomplish the purpose
of this
section...”
The
Kane
County Board
imposed on
the
Woodland ifi permit the condition
that the site
“shall not be
expandedfurther” (Condition 4) and thecondition that WMII
fulfill
all
of the
representations made
at
the July26,
1988
hearing
(Condition
2),
including
the
representation
that
Woodland ifi was the last expansion on the site and that the
relevant
portion
of
Woodland
ifi
would
be
a
passive
recreation area.
ANSWER:
\V’MJT states Section 5/39.2(e) of the Illinois Environmental Protection Act
(“Act”)
and
the Resolution
are the best
evidence
of the
Act
and ‘the
Resolution’s contents and,
therefore, refers
to the Act and Resolution for a complete and accurate recitation oftheir contents.
13.
Pursuant
to
35 Ill. Admin.
Code
807.206, the granting of a
landfill permit is conditioned upon the adoption ofa closure
plan.
W1VllI did include
a closure
plan in its Woodland Ill
application that calls for the specific area now proposedfor a
transfer station-indeed the entire
site-to be redeveloped
as a
passive recreation park.
W1\’ffl recently closedWoodlandIll
and,
therefore,
should
proceed
to
construct
the
passive
recreation facility.
ANSWER:
WMIIstates that 35111. Adniin. Code 807.206 and the Applicationare thebest
evidence of35 Ill. Admin. Code 807.206 and the Application’s contents and, therefore, refers to 35
Ill. Admin.
Code
807.206
and
the
Application for a complete
and
accurate
recitation of their
contents.
Further answering, W~vffl
admits that Woodland ifi has closed recently, but denies the
remaining allegations contained in paragraph
13.
14.
Siting the proposed transfer station
on
the Woodland Site
consitutes
an impermissible expansion on the site and of the
site, in violation ofConditions 2 and 4, in at least each of the
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following ways:
(C)
theproposed transferstation would doublethe
number of pollution
control facilities
on
the
site;
(D)
the transferstation would increase trucktraffic
to the site by more than
145
of the volume
of traffic to the site at the time ofits closure;
(F)
the transfer station would indefinitely expand
the operating life ofthe site from its intended
closing date;
(F)
the
-
transfer
station
would
expand
improvements
on
the Site by
adding
septic,
well, and waste
management systems
where
none exist or are neededpresently;
and
(G)
the
transfer
station
would
increase
the
intensity of the
use of the site for pollution
control purposes.
ANSWER:
WMIT denies the allegations contained in paragraph
14 of the Complaint.
15.
Likewise,
siting
the
proposed
transfer
station
on
the
Woodland Site constitutes
an
impermissible
breach
of the
condition
that
the entire
site be
redeveloped as
a
passive
recreation area.
ANSWER:
W1Vifi denies the allegations contained in paragraph 15 of the Complaint.
16.
Section
5/31(d) of the
Environmental
Protection
Act,
415
ILCS 5/31(d), provides that any person may file a complaint
with the Pollution Control Board forviolations of the Act or
any rule, regulation, permit or term or condition.
ANSWER:
WIvifi states that Section 5/31(d) of the Act speaks for itself.
AFFIRMATIVE DEFENSES
First Affirmative Defense
(The Complaint is Premature)
The
Complaint alleges that WMII’s requestforlocal sitingapproval oftheWoodland
Transfer Facilityon an 8.9-acreportionofthe WoodlandLandfillproperty violates certain termsand
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