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

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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

This Document is Printed on Recycled Paper

~

366225

vi

May

19,

2003

2

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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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