BEFORE THE
CITY OF KANKAKEE,
Petitioner
vs.
COUNTY OF KANKAKEE,
COUNTY BOARD
OF KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS, INC.
Respondents.
K F.CE 1~
ED
CLERK’S 0çflC
BOARdU~
2
2003
STATEO? iLLINOIS
poliuttOfl
COMM Board
PCB 03-125
(Third-Party Pollution Control Facility
Siting Appeal)
MERLIN KARLOCK,
)
vs.
Petitioner,
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
MICHAEL WATSON,
vs.
Petitioner,
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and
WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 03-133
(Third-Party Pollution Control Facility
Siting Appeal)
PCB 03-134
(Third-Party Pollution
Control Facility
Siting Appeal)
KEITH RUNYON,
)
vs.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
Petitioner
)
)
)
)
)
)
NOTICE OF FILING
PCR 03-135
(Third-Party Pollution Control Facility
Siting Appeal)
TO:
See Attached Service List
PLEASE TAKE NOTICE that on June 2, 2003
there has caused to be filed with the
Clerk ofthe Illinois Pollution Control Board located at the James it
Thompson Center, Suite
11-
500, 100W.
Randolph St., Chicago, Illinois,
via hand-delivery an original and 9 copies of the
following documents, a copy ofwhich is attached hereto:
BriefAnd Argument Of Petitioners
)
)
)
)
)
)
)
)
GE9~G/MUEI4IER,Attorney at Law
PROOF OF SERVICE
I, Pat Wheeler, a
non-attorney, on oath state that I served
a copy ofthe above listed
documents by sending the same to each of the parties listed on the attached Service List via U.S.
Mail from Ottawa, Illinois, at
5:00 P.M. on June 2, 2003,
with proper postagepre-paid.
Pat Wheeler
SUBSCRIBED AND SWORN TO before
me this 2nd
day ofJune, 2003.
GEORGE MUELLER,
P.C.
Attorney at Law
501 State Street
Ottawa, IL
61350
Phone: (815) 433-4705
SERVICE LIST
Bradley P. Holloran, Hearing Officer
Illinois Pollution Control
Board
James R. Thompson Center, Suite
11-500
100
W.
Randolph St.
Chicago, IL
60601
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL
60901
Donald J. Moran
Pedersen & Houpt
161 N. Clark St.,
Suite 3100
Chicago, IL
60601-3244
Kenneth
A. Leshen
One Dearborn
Square
Suite 550
Kankakee, IL
60901
Richard
S. Porter
Charles F. Heisten
Hinshaw &
Culbertson
100 Park Ave., P.O. Box
1389
Rockford,
IL
61105-1389
Keith Runyon
1165 Plum Creek Drive
Bourbonnais,
IL
60914
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
Chicago,IL
60611
Jennifer J.
Sackett Pohlenz
175
W. Jackson Blvd.
Suite
1600
Chicago, IL
60604
K
&.
C
El V
ED
‘“‘C’S
OFFICF
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
2
Z003
CITY OF
KANKAKEE,
)
STATE OF
ILLINOIS
Petitioner,
)
Pollution
Control Board
vs.
)
PCB 03-125
COUNTY OF KANKAKEE,
)
(Third-Party
Pollution Control Facility
COUNTY BOARD OF
KANKAKEE,
)
Siting Appeal)
and WASTE MANAGEMENT OF
)
ILLINOIS, INC.
)
Respondents.
)
MERLIN KARLOCK,
)
Petitioner,
)
vs.
)
PCB 03-133
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCB 03-134
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD
OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
KEITH RUNYON,
)
Petitioner,
)
vs.
)
PCB 03-135
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD
OF KANKAXEE, and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
BRIEF AND ARGUMENT OF PETITIONER, MERLIN KARLOCK
George Mueller, Attorney at
Law
501 State Street
Ottawa, IL
61350
Phone: (815) 433-4705
TABLE OF CONTENTS
Page
I.
Introduction
I
II. Standard ofReview
4
III. County Board Lacked Jurisdiction Due To The Fact That The Applicant
Failed To Satisfy The Notice Requirements Of Section 39.2(b) OfThe Act
6
IV.
Filing Irregularities Prejudiced the Public And Rendered The Proceedings
Fundamentally Unfair
7
A.
WMI’s Operating Record was Unavailable to
the Public,
Rendering the Proceedings Fundamentally Unfair
9
B.
Failure ofthe Application to Contain Required Information Rendered the
Siting Hearing Fundamentally Unfair
11
V.
The County And WMI’s Actions, Both Before And After The Filing Of The
Siting Application, Demonstrated Collusion And Pre-Determination Of The
Issues
13
VI. The County’s Decision That The Proposed Facility Is So Located, Designed,
And Proposed
To Be Operated As To Protect The Public Health, Safety And
Welfare Was Against The Manifest Weight Of The Evidence
16
A.
Statement of Facts
16
B.
Argument
22
(1) The in situ materials do not provide an effective barrier between
the waste and the silurian
dolomite aquifer
21
(2) The inward hydraulic
gradient is not sufficiently established
or understood
25
(3) The groundwater monitoring program is based upon
an
incomplete and flawed understanding of groundwater flow
at the site
28
(4) The Groundwater
impact assessment is based on
such erroneous
assumptions that it is of no value
31
Page -2-
(5)
WMI’s non-conservative approach to monitoring well
exceedances at the existing
facility negatively impacts
its
credibility
33
(6)
WMI’s proposed location is functionally the same as the one found
unsafe in this Board’s Decision in County of Kankakee vs
City of Kankakee
34
VII.
The Application For Siting Approval Is Not Consistent With The Kankakee
County Solid Waste Management Plan
36
VIII.
Conclusion
37
40
BRIEF AND ARGUMENT OF PETITIONER. MERLIN KARLOCK
I.
Introduction
Before the year 2002,
Waste Management ofIllinois
(hereinafter “WMI”) owned and
operated a
179-acre, pre-Subtitle D landfill in rural Kankakee County south ofthe corporate
limits ofthe City of Kankakee,
Portions ofthis
facility did not, and
still do not, have an
engineered liner.
Pursuant to the Kankakee County Solid Waste Management Plan
requirements, the facility did not accept waste from outside Kankakee County.
(Board Hearing,
Watson Exhibit #7)’
On October 9, 2001,
the Kankakee County Solid Waste Management Plan
was amended
to remove the preclusion on acceptance of out-of-county waste.
(C-701, 702).
On March
12,
2002, the Kankakee County Board
once again amended it’s Solid Waste Management Plan, this
time incorporating some new technical and substantive requirements to be met in any application
for local siting approval.
(C-703-706).
The following day, March 13, 2002, Town & County,
Inc., and Kankakee Regional Landfill, L.L.C. filed an Application with the Cily ofKankakee for
siting approval ofa new regional pollution control facility (landfill) at the southern edge of the
City and
near the existing WMI facility.
On March 29, 2002, WMI filed an Application with the
County ofKankakee for siting approval ofexpansion of its existing facility into a 664-acre
regional landfill.
The City Council of the City ofKankakee, after a lengthy and
contested
hearing at which both the County ofKankakee and WMI participated as objectors, unanimously
granted siting approval to Town & Country.
That decision was appealed to this
Board in cases:
References to the record will
distinguish between references to the County Hearing
conducted in November and December of2002 and the Pollution Control Board Fundamental
Fairness Hearing, referred to as BD. HRG., conducted on
May
5Ih
&
61h
2003.
The transcript of
the multi-day County Hearing has numbered volumes and will be referred to as such.
PCB
03-3 1,
33, and 35, and this Board is asked to takejudicial notice ofthe arguments and
record in those cases, particularly as they pertain to the procedural history and to fundamental
fairness issues raised herein.
On July 22, 2002 the County ofKankakee conducted a hearing on the Application of
WMI for siting approval.
At that time, counsel for WMI, citing WMI’s
failure to
provide the
required pre-filing service on some adjoining property owners, moved that the hearing be
continued and rescheduled
in November. (C-682).
The siting hearing was then concluded
without any evidence being taken.
On July 29, 2002, WMI published a new Notice of
Application for local
siting approval, and on August
16, 2002,
WMI submitted to Karl Kruse,
Kankakee County Board Chairman,
the “previously filed site location application” and other
documents.
(C-2372, 2372).
WMI did not submit a new filing fee pursuant to the letter of
transmittal
referenced hereinabove.
The siting hearing on WMI’s resubmitted Application commenced on November
18,
2002 and continued until December 6, 2002.
After the close ofthe local siting hearing but
before the County Board made its decision, this Board on January 9, 2003 reversed the
unanimous siting approval previously granted by the Kankakee City Council in the Town &
Country case, finding that the Applicant had failed to establish that the hydro-geologic
setting
(which is essentially similar to
the WMI hydro-geologic setting) protected the public health,
safety and welfare. (PCB
03-31, January
9, 2003).
On January 31,
2003
the Kankakee County
Board conditionally approved WMI’s Application, and this appeal resulted.
Although the PCB
Hearing Officer in this case ruled that evidence regarding the adoption
and amendment of the
Kankakee County Solid Waste Plan is not relevant to the fundamental fairness of the
proceedings, the Plan and its amendments are
in the record.
Town & Country Utilities argued in
2
its brief before this Board in PCB 03-3lthat the County’s hasty amendments of its
Solid Waste
Management Plan in October, 2001
and March, 2002 were solely
intended to pave the way for
WMI to seek an expansion of its existing facility while simultaneously precluding the City of
Kankakee from exercising its siting jurisdiction.
(PCB 03-31).
Petitioner Karlock respectfully argues that the PCB Hearing Officer in this
case, in
excluding evidence relating to the timing and reasons for the two Solid Waste Plan amendments
before the Town & Country and WMI Applications for siting approval were
filed, misinterpreted
this Board’s ruling in Residents Against a Polluted Environment vs. County of LaSalle and
Landcomp Corporation, PCB 96-243.
In the Landoomp case, this Board found that evidence of a
siting applicant’s previous presence and
input into the development of the county’s Solid Waste
Management Plan was not an improper ~
parte contact, and was
therefore not relevant
to the
fundamental fairness of the subsequent siting proceedings.
What distinguishes Landcomp from
the instant case, however, is that
in Landcomp the applicant’s previous
involvement with
the
county on planning
issues was both innocuous in nature and remote in
time from the filing ofthe
application for site location approval.
In the instant case, the plain
language of the Plan
amendments themselves indicate an intent on the part ofthe County to approve the already
contemplated WMI expansion and to oppose any
siting application conducted under any other
jurisdiction.
Timing of the amendments in the instant case is also ominous in that the second
Plan
amendment was adopted the
day before Town & County filed its Application for site
location approval with the City of Kankakee and a little over two weeks before WMI filed its
Application with the County.
In light of the subsequent, obvious joint effort between Kankakee
County and WMI in appealing the City ofKankakee’s decision in
the Town & Country case, all
of which took place while
WMI’s competing Application waspending before the County
3
(creating a per se ~
pafle contact), the Board is asked to reconsider its Hearing Officer’s ruling
and recognize that
in this case the County’s Solid Waste Plan amendments were
the vehicle for
implementation ofits joint venture with
WMI.
This Board should be mindful ofthe long history
ofdisputes between neighboring political jurisdictions regarding landfill development; “As
evidenced in
the instant case no matter where a landfill is sited, neighboring units of local
government not participating in the landfill’s developmentwill typically employ their
considerable legal arsenal to prevent indefinitely thedevelopment ofsuch facilities.”
(City of
Elgin
v. County ofCook. Villageof Bartlett v. Solid Waste Agency ofNorthern Cook County.
169 111.2nd
53
at 70(1996)).
II.
Standard Of Review
Section 40.1
ofthe Act requires the Board to review the proceedings before the
local
decision maker to assure fundamental fairness.
In B & B Hauling, the Appellate Court found
that although citizens before a local decision maker are not entitled
to
a
fair hearing by
constitutional guarantees of due process, procedures at the local level must comport with due
process standards offundamental fairness.
The Court held
that standards of adjudicative due
process must be applied.
(E & B Hauling, 451, N.E.2d at
564;
see also
Fairview Area
Citizens
Task Force (FACT) v. Pollution Control
Board,
144 lll.Dec.
659,
555 N.B.2d
1178 (3~
Dist.
1990)).
Due process requires that parties have an opportunity
to cross-examine witnesses, but
that requirement is not without
limits.
Due process requirements are determined by balancing
the weight of the individual’s interest against society’s interest in effective and
efficient
governmental operation.
Waste Management of Illinois. Inc.
vs. Pollution Control Board,
175
Ill.App.3d
1023,
530
N.E.2d 682,
693
(20d
Dist.
1988).
The manner in which the hearing is
4
conducted, the opportunity to be heard, the existence of cx parte contacts, prejudgment of
adjudicative facts, and the introduction of evidence are important, but not
rigid, elements in
assessing fundamental fairness.
Hediger v. D & L Landfill. Inc. (PCB 900163, December 20,
1990)
While the determination offundamental fairness is made on a ~
novo basis, the Board
acts as an
appellate body regarding the nine substantive criteria, confining its review to the
record made before the local siting authority.
When examining a local decision on the nine criteria under Section
39.2 ofthe Act, the
Board must determine whether the local decision is against the manifest weight of the evidence.
McLean County Disposal. Inc.
v. County ofMcLean, 207 IlI.App.3d 477, 482,
566
N.E.2d 26,
29
(4th
Dist.
1991); Fairview Area Citizens Task Force v, PCB,
198 Ill.App.3d 541, 550,
555
N.E. 2d
1178,
1184 (3~
Dist.
1990); Harris v.
Day,
115 Ill.App.3d 762, 769, 45t
N.E.2d 262,
265.
The party seeking siting approval for a pollution control facility must submit sufficient
details of the proposed facility to meet each ofthe nine statutory criteria.
(Land and Lakes
Company v. PCB, 319 IILApp.3d 41,
743 N.E.2d
188 (3” Dist. 2000)).
All of the statutory
criteria must be satisfied before siting can be granted.
(Concerned Adjoining Owners
v. PCB,
288 Ill.App.3d
565,
680 N.E.2d 810(5111 Dist.
1997)).
This
Board for the first time reversed an affirmative local
decision on the basis
that the
local finding on the public health,
safety, and welfare criterion was against the manifest weight
of evidence in County of Kankakee v.
The City of Kankakee, PCB 03-31, January 9, 2003).
In
that case, the Board carefully scrutinized the evidence on both
sides ofthe issue and seemed to
give particular weight to the fact that the bedrock in close proximity to the proposed facility was
S
silurian dolomite, which is a major regional aquifer in Illinois.
This decision would seem to
raise the bar for all applicants regarding the sufficiency of their evidence regarding the safety of
a proposed facility, but especially for applicants such as WMI in this case where they, too, plan
to build a facility in direct proximity to the silurian dolomite aquifer.
III.
County Board Lacked Jurisdiction Due To The Fact That The Applicant Failed
To
Satisfy The Notice ReQuirements Of Section 39.2(b~
OfThe Act.
415 ILCS 39.2(b) provides in relevant part that, “no later than
14 days prior to a request
for local approval the applicant
~jj~Jj
cause written notice of such request to be
served either in
person or by registered mail, return receipt requested, on the owners of all property within the
subject area not
solely owned by the applicant, and on the owners of all property within 250 feet
in
each direction ofthe lot lines of the subject property
...“
(Emphasis added).
This requirement
is mandatory.
The record reflects and all parties are in agreement that Brenda Keller is
a
landowner entitled to
notice under the aforesaid Section, and that she was not served.
The issue
was fully developed at the County siting hearing by Objector, Michael Watson, and Petitioner
Karlock hereby adopts as his own the arguments on this issue in the Briefof Michael Watson.
By way ofadditional argument, Petitioner Karlock notes that it is ofcritical importance
that no attempt was made to serve Brenda Keller either by registered or certified mail.
(Cy.
Hrg.
Volume 28, Page 44).
Instead, WMI argued that they unsuccessfully attempted personal service
on several occasions, and presented in support thereofthe testimony of theirprivate process
server,
Ryan Jones.
(Cy.
Hrg. Volume 28, Page 5-56).
The fact that Jones’ attempts at service
were unsuccessful is of no consequence and does not support the intended inference by WMI
that Mrs. Keller was evading service.
The testimony of both Brenda Keller and her husband,
6
Robert Keller, is unequivocal that the Kellers did not evade service, that they were home and
available for service during the general time period when Jones allegedly attempted
service, and
that they were engaging in their normal routines
during that time.
(Cy. Hrg. Volume 28, Pages
58-99, 101-135).
This
is supported by the fact that the Kellers readily accepted certified mail
service by WMI when it was attempted upon them in the earlier March, 2002
filing.
(Cy. Hrg.
Volume 28, Pages 62,
131).
Service as outlined in the statute
is mandatory.
The Appellate Courts have strictly
construed this requirement.
Ogle County Board v. Pollution Control Board. 272 Ill.App.3rd
184,
649 N.E.2d
545,
(2’~
Dist.
1995).
While the Ogle County case leaves the door slightly ajar for
those situations where the service requirement might
be excused in
the case ofa property owner
found to be evading service, no such evidence exists
in this case.
The failure ofthe Applicant to
even attempt certified or registered mail service on Brenda Keller should conclusively answer
the question of whether the Applicant did all it reasonably could
do under the circumstances.
All
we have in this case is WMI’s desire for a mandatory jurisdictional requirement to
be excused
because of the ineptness ofits process server.
That is not
and should not
be the
law.
IV.
Filing Irregularities Prejudiced the Public And Rendered The Proceedings
Fundamentally Unfair.
While there is no Board requirement that an applicant comply with
applicable local siting
ordinances or that siting jurisdictions enforce their own ordinances, the failure ofapplicants to
comply with
local siting ordinances and the acquiesces ofsitingjurisdictions in
that
noncompliance can lead to far reaching problems.
Local siting ordinances exist presumably to
provide the outline ofan
orderly process for siting proceedings and, more importantly,
to insure
7
public participation by putting the public as well as applicants on notice ofthe manner in which
the proceedings are to be conducted.
Local
siting ordinances not inconsistent with
Section 39.2
of the Environmental Protection Act areboth contemplated and approved by the courts.
(Waste
Management ofIllinois
v.
PCB,
175 Ill.App.3d
1023, 530 N.E.2d 682 (2~
Dist.
1988)).
Failure
ofa local siting jurisdiction to follow its own ordinance, particularly with regard to filing
requirements is also powerful circumstantial evidence ofpredisposition and prejudgment by the
local decision makers in favor of the applicant.
That is certainly the case here.
Contrary to
its originally expressed position ofJuly
22, 2002, that its
failure to notify all
required property owners
merely necessitated a continuance of the siting hearing, WMI now
argues that it withdrew its first Application and refiled a second Application on August
16,
2002.
It is clear, however,
from the letter of transmittal with the second Application that it is merely a
refihing of the original Application
with updated notice information.
(C-2371, 2372).
WMI
delivered its reified
Application to
the County Board Chairman rather than to the County Clerk.
They did not pay the required $250,000 filing fee upon said delivery, but rather asked that the
filing fee from the withdrawn March 29th Application be accepted instead.
Ofcourse some of
that initial $250,000 had been spent down, and WMI subsequently tendered an additional
$108,000 to the County as a supplemental filing fee.
(Cy. Hrg.
Volume 2, Pages
18,
26; Also C-
693-694).
One gets the sense from the informality of the filing and
tender of fees that things
were being done between WMI and the County on a more private than public basis.
This
is
supported by the fact that
WMT’s counsel’s August
16th
letterof transmittal
did not come to light
until after the siting hearings had begun in November.
In response to
a Freedom OfInformation
Act
request for information regarding WMI’s re-filing, specifically
a request for any letters of
transmittal or other evidence ofthe refiling, Brenda
Gorski, an Assistant State’s Attorney in
8
Kankakee County, indicated that no such information existed orcould be found.
(C-691-692).
The public, therefore, had no idea what had occurred regarding the refiling until the
actual siting
hearings began, objectors started making motions regarding the irregularities, and responsive
documents began to magically appear.
A.
WMI’s Operating Record was Unavailable to the Public.
Rendering the Proceedinus Fundamentally
Unfair.
Whether the documents required by the Act to be included with an application,
particularly the Applicant’s prior JEPA filings pertaining to the facility as required by 415 ILCS
5/39.2
(c), found their way to
the County Clerk’s Office for public inspection prior to the first
day ofthe siting hearing is a matter ofsome debate between the parties.
What is not debatable is
that these IEPA
filings (also referred to as the “operating record”) were
not available to the
public
prior to the beginning ofthe siting hearing.
The Attorney for Petitioner Karlock tendered
an Affidavit on the first day ofthe siting hearing indicating that the operating record had not
been available to him in
the County Clerk’s Office despite a diligent inquiry and
search.
(C-659,
660).
At her evidence deposition, the surprisingly forgetful Chief Deputy County Clerk, Esther
Fox, who had participated with Attorney Mueller in the earlier fruitless search for the operating
record, acknowledged that she could not dispute any of the statements in his
Affidavit.
(Bd. Hrg.
Evidence Deposition ofEsther Fox, Page
13).
Mrs.
Fox did, however, recall that there was a
sign in the Clerk’s Office advising the public of other locations where the Application and
presumably the operating record could be viewed, but no such sign or copy thereofwas ever
offered into evidence in
these proceedings.
9
While the operating record was
“located” on the first day ofthe public siting hearing,
public access
to the same continued to be restricted.
Charles Norris testified at the Board
Hearing that he visited the County Clerk’s Office during the second day ofthe siting hearings
to
examine the operating record and found that it contained a substantial amount ofmicrofiche.
However, no microfiche reader was available with which to view
this portion of the record, nor
was one made available to
himupon his request.
(Ed. Hrg. May 6, 2003, Pages 24-26).
Norris
testified that he then visited another location where the operating record was allegedly available,
namely the Public Library in Bradley, and at that location the microfiche portions of the
operating record were not present.
(Bd. Hrg. May 6, 2003, Page
27).
WMI does not dispute
any ofthe foregoing.
Instead, they argue that Petitioner Karlock’s
Attorney and his expert consultant, Charles
Norris, are sophisticated landfill siting hearing
participants who knew how to, and in fact got, the operating record through other sources, and
that therefore no prejudice resulted.
This
entirely misses the point since the public
availability
requirements so painstakingly carved out by the Board over the years are intended to protect the
entire public, particularly those who are not experienced and sophisticated in
landfill siting.
This
Board has held that there is
a presumption ofprejudice when the Application and other required
filings are not available to the public.
(American Bottom Conservancy v.
Village ofFairmount
and Waste Management of Illinois.
Inc.,
PCBOO-200, October
19, 2000).
The unavailability
to
the public of materials required to be
filed as part ofthe siting application
is
fundamentally
unfair.
(Residents Against A Polluted Environment and The Edmund B Thornton Foundation
vs. County ofLaSalle and Landcomp Corp. PCB96-243).
However, in this case, the County’s failure to make available to the public prior to the
commencement of the siting hearing copies ofthe Applicant’s IEPA filings was material and
10
more than a technical oversight.
A great deal of the substantive testimony at the siting hearing
concerned the hydrogeologic characterization and monitoring of the existing
facility at the site as
well as groundwater contamination believed
by some to be originating from the existing facility.
Those JEPA
filings can be
fairly summarized as, at a minimum, evidencing an on-going dialogue
between WMI and the Environmental Protection Agency regarding whether ornot monitoring
well exceedances at the existing facility constituted evidence of groundwater contamination
resulting from leachate migration.
Having the entire record of that dialogue available prior to
the hearing would have been completely essential
for a full and fair hearing on the issue.
Contrary to WMI’s assertion that there was no prejudice because Charles Norris obtained the
operating record prior to the beginning of the hearings, Norris in fact testified
that he could not
do
a complete review of that record, in that quarterly groundwater monitoring reports to
the
Agency from the existing facility were on microfiche which he never obtained.
(Cy. Hrg.
Volume
23, Page
18).
Without all of the required documents being available to all of the public
prior to the
commencement of the public hearing, a fundamentally fair hearing could not occur and
any
decision on substantive
criteria covered in those documents, particularly
as they relate to public,
health,
safety and welfare is flawed and cannot be
allowed to
stand.
B.
Failure of the Application
to Contain Required Information Rendered the
Siting Hearing Fundamentally Unfair.
The siting hearing was further rendered fundamentally unfair by the fact that the
siting
Application was not administratively complete nor ever certified as such, and that they
11
Application, in fact, failed to contain material
information required in the County’s Regional
Pollution Control Facility Siting Hearing Ordinance.
While the Ordinance is reproduced in
Volume I ofWMI’s siting Application,
Subsection E entitled “Date ofFiling”
is omitted from
the text.
(Cy.
Hrg. Volume
18, Page
109).
This Subsection requires a certification on the part of
the County that the Application is administratively complete before it can be deemed to
have
been filed,
Christopher Rubak, the WMI representative responsible for making sure that the
County’s filing requirements were
complied with, testified that he never received any
certification ofcompleteness nor notice of incompleteness from any County representative in
connection with the Application filing (Cy. Hrg. Volume
18,
Page 110).
The foregoing becomes more than a mere technical oversight when one realizes
that
WMI’s siting Application was,
in fact, incomplete, failing to
contain significant required
information.
Subsections H(2)(c) and (d) ofthe County Siting Ordinance require substantial
detail with regard to closed facilities owned or operated by any Applicant.
These requirements
were reviewed with Mr. Rubak during his testimony, and he acknowledged that the information
required was not included with the Application
and by way of explanation, opined that WMI
simply chose not to include the same because it would have been too voluminous.
(Cy. Hrg.
Volume
18,
Page 100,
101).
Not only did the absence ofrequired information
in the Application
effectively prevent
the public from being able to inquire regarding the same, but the County’s
acquiesce in this
omission
suggests a
lack of interest that could only result
from the fact that the ultimate issue
was
pre-decided.
WMI’s refusal and, in some cases, overt unwillingness to comply with the
12
requirements of the local siting ordinance and the decision maker’s refusal
to enforce that siting
ordinance demonstrate collusion between the County and WMI and rendered the proceedings
fundamentally unfair.
V.
The County And WMI’s Actions, Both Before And After The Filing OfThe
Siting Application, Demonstrated
Collusion And Pre-Determination
OfThe
Issues.
Before the Application for siting approval was ever filed, WMI and Kankakee County
had a joint plan ofaction to grant siting approval for a WMI expansion
and to oppose any
facility sited by the City of Kankakee. This collusive joint plan differs from that alleged in the
Residents Against A Polluted Environment case (PCB
97-139) in that here the evidence of
collusion is
not circumstantial, but exists in the words and deeds ofthe co-conspirators.
The first
amendmentofthe County Solid Waste Plan on October 9, 2001 contains a finding by the County
Board that, “the present landfill and its owner have served the County and its
residents well for
27 years” and that “the expansion of the present landfill would meet the needs ofthe residents of
the County for waste disposal generated within the County for many years.”
(C-701).
Worst of
all, the County Board in
this Resolution went
on to find, without having heard any evidence
regarding the merits ofthe proposed expansion that, “the expansion of the current landfill would
have
positive impacts on the County
...“
This is nothing short of an unequivocal legislative
finding about the merits of a siting application not yet filed.
Moreover, the County Board found
in
this Resolution that, “A second
landfill would have negative impacts on County residents near
the facility
...“
This sentiment was reiterated in the second amendment to the County
Solid Waste
Management
Plan adopted the day before Town & Country filed its siting Application with the
13
City ofKankakee where
the County now
found that, “A second non-contiguous landfill
would
have impacts upon County residents located near any such proposed new facility.”
(C-703).
Kankakee County, in
other words, committed itself legislatively to oppose any new landfill other
than expansion ofthe existing WMI facility.
How did the County Board know before reviewing
siting Applications and hearing evidence that expansion of the WMI facility would be good, and
that any other proposed facility would be
bad?
In the meantime, WMI’s representatives were in the thick ofthis process.
WMI’s
Division Vice-President, Dale Hoekstra,
wrote a letter on January 7, 2002 to
every Kankakee
County Board member stating in pertinent part that, “We have also confirmed our obligation to
provide a full and complete defense for the County in the event its
Solid Waste Management
Plan is legally challenged, and furthermore,
a legal challenge ofthis type will not impede our
ability to expand our existing facility.”
(C-709).
On March
11, 2002,
the day before the
County’s
second amendment of its Solid Waste Management Plan, Hoekstra once again wrote to
every County Board member advisingthem that Waste Management representatives have
informed the Board in the past, “We relief in good faith on the October 9,2001
Resolution
during the final negotiations that led to the amended Host Agreement” and “as
we have informed
the County Board in the past,
Waste Management is prepared to take a leadership role in
defending against any legal challenge to the County’s one
landfill Solid Waste Management Plan
and contesting any other landfill development because it would
be inconsistent with the
County’s
Solid Waste Plan.”
(C-71 1).
Kankakee County then retained both legal and
technical
consultants
to assist it in its
opposition to the Town &
Country Application pending before the
City ofKankakee.
Bills to the County for these services were in excess of $100,000 as of
14
November
18, 2002, well before the bulk of the work in the Town & Country appeal was
performed.
(C-698, 699; Also C-7
17-795).
At some point, WMI and the County and their consultants got so busy working together
for their “common
good” that they apparently
lost sight of who was representing whom.
As a
result, we see all of the invoices for legal services from Hinshaw & Culbertson, the legal
representatives for Kankakee County, from May 20, 2002 through September 30, 2002 being
addressed to:
Kankakee County Landfill
Ed
Smith
450 East Court St.
Kankakee, IL
60901-3992
(C-699)
Ed
Smith is the State’s Attorney of Kankakee County.
The invoices ofHinshaw & Culbertson
further reveal that they worked for the County on solid waste planning issues, the opposition to
Town &
Country’s Application, and the pending WMI Application.
Some of the work
performed by Hinshaw &
Culbertson in opposing
the Town & Country Application pending
before the City ofKankakee was
directly indicated on the invoices as being “chargeable
to waste
siting filing application fee.”
(C-699, 718,
719, 781, 783).
The County can argue that the foregoing is a mistake, but
it is still a fact and mistakes are
often the most telling evidence ofa party’s true
intentions.
The Board is asked to apply the same
reasoning it used in Concerned Citizens for a Better Environment vs. City of Havana and
Southwest Energy Corporation, PCB 94-44, May
19,
1994) where it found great fault with the
hearing officer sending her invoices directly to the siting applicant.
The Board in
that case did
15
not find that the hearing officer was, in fact, biased, but was critical because the extensive
contacts
between the applicant and the hearing officer showed a “continued disregard on the part
ofthe applicant and the City of Havana for adjudicatory due process.”
(94-44 at page 12).
Common sense in this case dictates that neither Kankakee County nor WMI had any real
concern about adjudicatory process, nor that they made any real attempt
to
hide their collusive
behavior.
The amendments of the Solid Waste Plan,
finding even before an application was filed
that the WMI expansion would be
beneficial, theparties’ mutual
disregard for the local siting
ordinance
requirements, the parties’ joint efforts while WMI’s Application was pending to
oppose the Town & Country siting Application, and the County’s Attorneys’
billing practices all
lead to
the inescapable conclusion that the proceedings were fundamentally unfair.
VI.
The County’s Decision That The Proposed Facility Is So Located, Designed.
And Proposed To
Be Operated As To Protect The Public Health. Safety And
Welfare Was Against The Manifest Weight Of The Evidence.
A.
Statement ofFacts
Joan Underwood, a licensed professional geologist employed by WMI’s consultant,
Earthtech, testified regarding the geologic and hydro-geologic investigation at the site.
(Cy. Hrg.
Volume
19, Pages 81, 82).
She described three geologic Myers at the site, the silurian dolomite
bedrock overlain by unconsolidated glacial materials from the Wedron group and the Mason
group.
(Cy. Hrg. Volume
19, Page
101).
She
described the glacial materials as being generally
fine-grained and having lower permeability than a recompacted clay liner.
(Cy.
Hrg. Volume
19,
Page
105).
The silurian dolomite bedrock is considered the uppermost aquifer beneath the site.
(Cy.
Hrg. Volume
19,
Page 93).
She opined that the uppermost aquifer was probably 200 feet
deep, but acknowledged that in past studies and
permit modifications, WMI had
characterized
16
the aquifer as being only ten feet deep and referred to the portion of the bedrock above the top
ten feet as the “lower confining unit.”
(Cy. Hrg. Volume
19, Page
128,
130).
No soil borings
were done that completely penetrated the
entire uppermost aquifer.
(Cy. Hrg. Volume
19, Page
135).
Although Ms.
Underwood identified the geologic materials above the bedrock as being
mainly fine-grained clay, she did identify two major sand bodies at the site which would be
separately monitored along with the uppermost aquifer.
(Cy. Hrg.
Volume
19, Page
111).
She
did not believe that the sand body on the eastern portion of the site extended all the way to the
nearby Iroquois River.
(Cy. Hrg.
Volume
19, Page
104).
Ms. Underwood indicated that the facility would be an
inward gradient facility, but that
the base excavation grades on the southern portion of the site had to be lowered
in order to
maintain the inward gradient.
(Cy.
JHIrg. Volume
19, Page
107).
Andrew Nickodem, an engineer, also employed by Earthtech who has also worked in-
house for WMI for four years, described the design of the facility.
(Cy. Hrg. Volume
11, Pages
56,
57;
Volume
12,
Page 9).
The site consists of an existing facility, portions ofwhich have a
recompacted clay liner and portions of which areentirely unlined.
(Cy. Hrg. Volume
12,
Pages
20, 21).
The expanded facility was proposed to overlay the existing facility although the
engineering drawings with the Application did not contain scaled details showing the liner
system associated with the overlay.
(Cy. Hrg.
Volume 12, Page 69).
Otherwise,
Mr. Nickodem described a fairly standard composite liner system for the new
facility with three feet ofrecompacted clay and a 60 ml. HDPE liner.
(Cy. Hrg. Volume
11,
Page 71).
He acknowledged that this equaled Illinois’ minimum standards for composite
landfill
liners. (Cy. Hrg. Volume
12, Page
11).
He did not know the minimum State standards for
17
composite final covers, so he
couldn’t say whether the designed final cover exceeded those
standards or not.
(Cy. Hrg. Volume
12, Page
55).
Nickodem indicated that the hydrogeologic investigation was performed before his
design, and that he relied
on the low permeability clay underneath the liner.
(Cy. Hrg.
Volume
II, Pages 63, 70).
The facility would have an inward
gradient, but the base grades
in Cells 9
and 10 at the south had to be lowered to maintain that inward gradient.
(Cy. Hrg. Volume
12,
Page 44).
Nickodem acknowledged that he had not previously designed an inward gradient
landfill, but pointed out that he had worked in construction on one.
(Cy. Hrg. Volume
12, Page
82).
Nickodem’s design proposed to re-circulate leachate at the facility, turning it into a bio-
reactor.
(Cy. Hrg. Volume
12, Page 50).
He acknowledged, however, that leachate re-
circulation was not yet completely understood.
(Cy.
Hrg. Volume
12,
Page 53).
Charles Norris testified on behalf ofMerlin Karlock that he is a professional licensed
geologist in the State of Illinois who has evaluated numerous landfill siting applications.
(Cy.
Hrg. Volume 24, Page 21).
He pointed out that the Application contained insufficient data for
permitting with
the principal deficiency being that head data (observation well water levels)
needed to
be obtained for all
four seasons rather thanjust for a single time period.
(Cy. Hrg.
Volume 23, Pages
18,
19).
He opined that attempts to assess
siteperformance without seeing the
variations in four quarters of data are useless.
(Cy. Hrg. Volume 23, Page 20).
Norris found the geology at the site not unexpected and typical of the northern quarter of
the Illinois silurian dolomite bedrock group.
(Cy. Hrg. Volume 23, Page 27).
Silurian dolomite
is a heavily used aquifer.
(Cy.
Hrg.
Volume
25,
Page 67).
A high
percentage ofthe population
in the area uses the silurian dolomite aquifer.
(Cy. Hrg. Volume 24, Page
104).
He pointed out
18
that the proposed WMI site and the nearby Town & Country site sit on top of the same aquifer,
and he
would expect a
great number ofgeologic similarities between the two.
(Cy. Hrg. Volume
25,
Pages
59,
60, 88).
Mr. Norris observed that
the geometries
and geologic data at the site suggest the presence
of sink holes
or solution cavities underneath the site, which need to be taken into consideration
in all engineering calculations.
(Cy. Hrg.
Volume 23, Page 37).
He pointed out
a number of
examples including Boring B-150 which shows wash-out or voids consistent with dissolution
activity, the existence ofresidual Pennsylvaniandeposits in the topographic bedrock lows at the
site, and
the highly channelized groundwater flow which is a-typical of most aquifers.
(Cy. Hrg.
Volume 23, Pages 32, 40, 44).
Mr.
Norris was highly critical ofJoan Underwood’s use of laboratory permeability data
rather than field data in the groundwater impact assessment.
He pointed out that the lab data
suggested permeabilities thousands oftimes
lower than the field data, that fracture flow is not
represented in intact cores tested in
the lab, and that laboratory permeability testing does not
consider the
effect ofsecondary system flow from small scale fractures and sand lenses.
(Cy.
Hrg. Volume
23, Pages 50-59).
Norris concluded that the slug test permeability data reported by
the Applicant is far more representative ofthe true permeability of the till than the laboratory test
results used in the groundwater impact assessment.
Mr. Norris suggested that a water balance calculation be done as a reality check on the
assumptions a hydro-geologist uses.
(Cy. Hrg.
Volume 23, Page 26).
Norris performed such a
water balance and calculated that WMI’s Application severely underestimated the volume and
the rate ofwater
movement through the so-called
fine-grained materials to the aquifer, and
that it
severely overestimated the time for water to move downward to the silurian
dolomite.
(Cy. Hrg.
19
Volume 23, Page
59).
This is verified by the similar amplitudes in seasonal head changes
between deep and shallow observation wells
in the old part ofthe site which are indicative ofa
highly connected system.
(Cy. Hrg. Volume 23, Page 96).
This is further verified by the fact
that at least two deep monitoring wells at the existing site have shown agricultural chemicals in
the uppermost aquifer, and that these chemicals could not possibly have reached the aquifer yet
if the glacial materials were as impermeable as described and modeled by Ms.
Underwood.
(Cy.
Hrg. Volume 23, Page 69).
Mr. Norris’ review of the data, particularly the portion of the operating record data to
which he had access, led himto conclude that leachate from the existing site has for some time
beencontaminating surrounding groundwater.
He cited a
1990 review ofmonitoring
databy
Hydrosearch which ruled out landfill gas as the source of contamination.
(Cy.Hrg. Volume 23,
Page 71; Karlock Exhibit #16; C-856-860).
While the occurrence of landfill gas in
deep
monitoring wells suggests a large, interconnected flow system and is consistent with preferred
pathways that will
let leachate migrate away from the site, the amount ofcontamination is so
great that only leachate, and not gas, can be the cause of contamination in monitoring wells such
as I3-D and
14-D.
(Cy. Hrg. Volume 23, Pages 70-78;
Karlock Exhibit #1 5;C-85 1-855).
In rebuttal, Terry Johnson, an
in-house hydro-geologist employed by WMI and not
licensed in Illinois, testified
that
15 monitoring wells at the existing site are sampled four times
per year as required, and
that these results are
submitted to the IEPA.
(Cy. Hrg. Volume 26,
Pages
58,
63, 69, 86).
He complained
that Illinois statistical ranges
for monitoring exceedances
are too tight and don’t reflect normal ranges, and that as
a result landfills in Illinois typically
have very high false positive rates. (Cy. Hrg. Volume 26, Pages 66, 71).
He concluded that the
increases in groundwater contamination observed at the site are not attributable
to leachate, and
20
that the presence of landfill gas in
monitoring wells
does not threaten
the surrounding
environment.
(Cy. Hrg.
Volume 26,
Pages 76,
84).
On further rebuttal, Joan Underwood stated she did not believe that solution formations
exist underneath the site.
(Cy.
Hrg. Volume 27, Page 17).
She also
calculated groundwater
velocity in the aquifer at .01
feet per year, but acknowledged that in her equation she used a
permeability one thousand times lower than the actual permeabilities measured at the site by the
slug tests.
(Cy. Hrg.
Volume 27, Pages 31, 41).
B.
Argument
(1) The in situ materials do not provide an effective barrier between the waste and
the silurian dolomite aquifer.
The fine-grained glacial materials on which the Applicant relies to provide an effective
natural barrier between the waste and the major regional aquifer do not have the quality and do
not exist in the quantity which the Applicant’s represents.
By using the result from tightly
controlled laboratory permeability
tests rather than their own field scale slug tests, WMI
underestimates the permeability ofthese materials by a factor ofup to ten thousand.
The fine-
grained materials described by Ms.
Underwood are generally
described as the Wedron Till.
However, a close examination of the soil boring logs consistently demonstrates that the Wedron
Till
is not homogenous, that the deposits
and thickness of this Till are irregular, and that the
same is interspersed with many discontinuities and sand.
More importantly, the discontinuities
and sand bodies
increase with depth, meaning they increase at the very point where this Till is
relied upon as a natural barrier between the waste and the aquifer.
21
The siting Application has some good and valuable data, namely the slug test results
which typically show permeabilities in the Wedron Till in the range of 1
x
10 -4 cm/second and
I
x
10
-5 cm/seconds, figures consistent with what one would
expect from an unconsolidated,
discontinuous and heterogenous glacial till.
(Cy. Hrg. Volume 20, Page 70).
While conceding
the point, Ms.
Underwood, however, continued to use the much
lower matrix permeabilities
derived from laboratory tests of very small
intact samples ofpure Wedron Till in her calculations
and models.
Moreover, the slug test permeabilities, while
far more accurate than the laboratory test
results, probably also significantly underestimate actual permeability
in the areas that are of
relevant concern, because halfof the slug tests performed in the Till were in areas identified as
pure clay.
(Cy.
Hrg.
Volume 21, Page 82).
Little, if any, pure
clay exists
in
the lower portion of
the Till.
(Cy. Hrg. Volume 21, Pages 81,
82).
This is compoundedby the fact that the soil
boring logs uniformly reflect less material recovery closer to the bedrock interface.
(Cy. Hrg.
Volume 21, Page 87).
Poor recoveries can only be associated with less
cohesive material such
as sand or gravel or with less reliable soil classifications.
If WMI argues that the use of laboratory permeability results are more appropriate than
the field scale slug test results because of inherent differences between vertical and horizontal
permeability in the material, one need only point out that unlike rock which is deposited in strata
or layers, churned up glacial materials are too heterogeneous to have inherent differences
between horizontal and vertical permeability.
Mr. Norris pointed out this was specifically true
for materials such as the Wedron Till
identified at the site.
(Cy. Hrg. Volume 23, Page 54).
22
That notwithstanding, Ms. Underwood presented and modeled the Wedron Till
as being
significantly less permeable that the proposed recompacted clay linerproposed
in the design and
required by the State.
(Cy. Hrg. Volume
23, Page 28).
Compounding their error, WMI’s experts
grossly overestimated the amount ofthis
so-
called “fine-grained material” at the site.
Ms. Underwood testified that there was
an average of
sixteen feet of this material underneath this site,
(Cy. Hrg. Volume 20, Page 63), but that
is
complete misleading.
On cross-examination, she admitted that at boring
locations B-l
11
and B-
141, there was only three feet ofclay between the bottom of the proposed liner and the bedrock
aquifer.
(Cy.
Hrg. Volume 20, Page 96).
At boring location B-120, there was only three and
one-half feet ofclay separating the liner and the aquifer.
(Cy. Hrg.
Volume 20, Page
95).
At
boring location B-l32, the bedrock aquifer was within two
to three feet ofthe bottom of the
proposed excavation.
(Cy. Hrg. Volume 20, Page 85).
Even that
two
to three feet of supposed
clay
is illusory because a closer look at the soil boring log forB-3
12 shows that there was no
recovery at all for the last two feet sampled before the auger hit bedrock.
In other words,
there
was no material recovered to classify, yet Ms.
Underwood admitted that she chose, nonetheless,
to call this two feet ofnothing “clay.”
(Cy.
Hrg. Volume 20, Page
86).
Ms. Underwood also
ultimately conceded that poor recoveries can occur due to the materials being loose
and
discontinuous.
(Cy. Hrg. Volume 20, Page 90).
The implications ofthe paucity of good quality clay between the bottom of the proposed
liner and the top of the aquifer are staggering.
To the extent that Ms. Underwood admitted using
sixteen feet ofclay in her groundwater impact assessment model, (Cy. Hrg. Volume 20, Page
63), she has not modeled
a worst case scenario or even the worst case conditions found
at a
number of locations on the site.
In addition, Andrew Nickodem, the design engineer, testified
23
that he assumed in his design a minimum of eight feet ofimpermeable clay between the bottom
ofthe liner and the aquifer.
(Cy.
Hrg.
Volume
12, Page
54).
Even a cursory review of other readily available site data belies WMI’s conclusions
about the quantity and quality ofimpermeable Till at the site to protect the environment.
At the
southern portion ofthe site,
the vertical gradients between the surface water table
and the
dolomite aquifer are minimal, and such minimal vertical gradients were conceded by Ms.
Underwood as being consistent with good flow or good hydraulic connection between the two
units.
(Cy.
Hrg. Volume 20, Pages 78,
79).
In addition, Ms. Underwood
conceded that
seasonally changing water levels in the
deep observation wells would be consistent with those
wells being recharged from
the ground surface.
(Cy.
Hrg. Volume 20, Page 44).
Mr. Norris
pointed out that the Application lacked time series head data in the new soil borings and
observation wells, and that this data would
easilyhave allowed a determination of whether or not
deep wells show the seasonal variation which evidences their hydraulic connection to
surficial
units.
(Cy. Hrg.
Volume 23, Page
18).
Seasonal head data was, however, available
for the
existing facility, as that data has been submitted periodically to the IEPA
in connection with
various permit modifications.
Karlock’s
Exhibits #7.8,7.9
and 7.10, utilizing data from the
existing facility deep monitoring wells, prove that not only is there seasonal water level variation
in these wells, but the variation is similar in amplitude to the seasonal variation in the
corresponding shallow wells, thereby confirming the direct and rapid hydraulic communication
between the shallow and deeper water zones.
(Cy.
Hrg.
Volume 23,
Page 81; C-821-825).
Because some ofthe groundwater monitoring results
from the existing facility are stored
on microfiche, not all of this data was available to Mr. Norris.
However, the available data leads
to the inescapable conclusion that the regional
bedrock aquifer underneath the existing facility
24
has been impacted and contaminated by releases from that facility.
This further serves to
demonstrate that the glacial tills underneath the site do not
act as an effective barrier to
contaminant migration.
While WMI disputes Mr. Norris’ conclusion that groundwater has been
contaminated by leachate from the existing facility, they have acknowledged that fugitive gas
from the existing facility may have caused the problem.
(Cy. Hrg.
Volume 23, Page 76).
Regardless ofwhether one believes Mr. Norris’
conclusions regarding leachate releases, no one
disputes his perhaps more important conclusion that the existence ofcontaminated fugitive gas
in the bedrock aquifer deep underneath the existing facility is a
serious problem in and of itself
proving that the gas has been drive downward by pressure through preferred migration pathways.
(Cy. 1kg. Volume 23, Page
78).
The existence of landfill gas
in monitoring
wells significantly
below the bottom ofwaste in the existing facility stands in sharp contrast to Mr. Nickodem’s
testimony that landfill gas will not typically move into deeper groundwater. (Cy. Hrg. Volume
14, Page 60).
As outlined in the Statement ofFacts, Charles Norris proposed a mass water balance
calculation as a way of checking the quality and reality ofpermeability assumptions.
Ms.
Underwood did not do a water balance.
(Cy. Hrg. Volume 22,
Page 45).
Norris concluded that,
at a minimum, fifty-two times
more water is leaving the flow system than the Application
describes.
(Cy. 1kg.
Volume 23, Pages 66-69).
(2) The inward hydraulic gradient is not sufficiently established or understood.
In her groundwater impact assessment, Ms. Underwood modeled only for diffusion as the
leachate transport mechanism, and
did not even consider the possibility of outward advective
flow from
the facility.
(Cy. Hrg. Volume 21, Page 33).
This was premised upon her belief that
25
the facility has an
inward hydraulic gradient where there is no possibility ofoutward leachate
flow from
the facility, only the possibility of groundwater flow into the facility.
While the
evidence suggests that there is an inward gradient at some parts of the proposed facility, the
degree of that gradient is not well understood and the assumption that the gradient can be
maintained on
a long term basis
is entirely dubious, at best.
Andrew Nickodem, the design engineer, testified that
to ascertain the inward gradient and
forengineering calculations and design purposes, he used the water levels in the silurian
dolomite aquifer as depicted on the potentiometric surface map of the dolomite well
heads in the
Applicant’s engineering drawing
17
in the Application.
(Cy. Hrg. Volume
12, Pages 41,42).
Based upon this, the base grades for the top of the liner were significantly lowered
in the two
southernmost cells.
(Cy. Hrg. Volume
12, Page 40).
Nickodem further used the dolomite water
levels to compute the potential for hydrostratic uplift pressure during
and after construction.
(Cy. Hrg.
Volume
12, Pages 41-43).
Since the proposed landfill is to
be built
in the Till
rather
than in the dolomite aquifer, Nickodem’s use of the dolomite aquifer water levels to compute
hydrostratic uplift and other engineering requirements is somewhat counter-intuitive.
This
Board recently rejected similar analysis involving the same regional aquifer when it found in
County ofKankakee vs. The City of Kankakee, et al that “the effectiveness of the inward
gradient is compromised
when the aquifer lies below the foundation of the landfill.”
(PCB 03-.
31, January
9,
2003
at Page 27).
Not surprisingly, Nickodem’s understanding of the inward gradient was contradicted by
Ms. Underwood who testified
that the inward
gradient is based upon the water levels in the water
table.
(Cy. Hrg. Volume 20, Page
13).
Aside from the troubling questions this contradiction
raises about the efficacy ofNickodem’s design, an inward gradient based upon water table heads
26
would require an understanding of the flow directions
in the water table.
However, Ms.
Underwood never did prepare, nor does the Application contain, potentiometric surface maps for
the water table, or for the Wedron Till, the actual geologic unit in which the base of the landfill
will sit.
Nickodem did acknowledge that comparing and contrasting the potentiometric surfaces
in the water table and in the Wedron Till to that in the dolomite aquifer would enhance
understanding of the hydraulic inter-relationship between the respective units.
(Cy. Hrg.
Volume 20, Pages 14-16).
Joan Underwood further contradicted Mr. Nickodem by pointing out
that although
she didn’t prepare a potentiometric map ofthe clay unit at the base ofthe liner, the
correct water levels or heads to use for engineering calculations are the ones in the Wedron clay
unit.
(Cy. Hrg.
Volume 20, Pages
15,
16).
To make matters worse, she went on to point out that
if one used the water levels in the dolomite wells to establish the inward gradient, there would be
no inward gradient at landfill linercontours above the 626 elevation in the northeast portion of
the proposed site.
(Cy. Hrg. Volume 20, Page
66).
Given the troubling fact that WMI’s two principle experts don’t agree on what the inward
gradient is or how it is to be measured, evaluation of whether that gradient can be maintained
seems premature and altogether speculative.
That notwithstanding, the groundwater high in the
upper most aquifer is located at boring B-I 15 which is in the approximate geographic center of
the proposed site.
(Cy Hrg. Volume 20, Page
56).
Ms.
Underwood could not identify a higher
elevation off-site from which the dolomite at B- 115
could be recharging and
did ultimately
concede that the bedrock at this point appeared to be recharged from the ground surface.
(Cy.
1-hg. Volume 20, Page
44, 61). Building the landfill over this groundwater high point cuts off
recharge from the surface which will cause down gradient heads to
drop, thereby further
compromising the inward gradient.
27
Although Andrew Nickodem and Joan Underwood work in the same office,
it is apparent
that they failed to communicate effectively on this project.
Did Mr. Nickodem decide not to
design a composite liner that exceeded State minimum specifications because he believed there
was a minimum ofeight feet of low permeability clay underneath the liner?
Are Mr.
Nickodem’s engineeringcalculations
dangerously flawed because he used the wrong water well
levels in those calculations?
Answering these questions is the burden of WMI, and the failure
to
answer these questions is conclusive
on the issue of whether WMI has submitted sufficient
evidence to establish that
the facility is so located and designed as to protect the public health,
safety, and welfare.
What little confidence there is left is Nickodem’s conclusions evaporates
when one realizes
that he had no understanding ofthe
State requirement that there be no more
than one foot of leachate on the liner.
Mr. Nickodem did not know whether this requirement
applied to
the highest or lowest portion of the liner, and this is significant in light of the fact that
the liner in each cell
typically is a drop in elevation from its high point at the East of the cell to
the
sump at the West end of the cell of approximately fourteen feet.
(Cy. Hrg. Volume
12, Page
38).
The point becomes critical since Mr. Underwood acknowledged that as little as six feet of
leachate on the liner at its southeast portion would reverse the inward gradient in that area.
(Cy.
Hrg. Volume 21, Page
35).
(3)
The groundwater monitoring
program is based
upon an incomplete and
flawed understanding of groundwater flow at the site.
The only groundwater flow map presented in the Application is
drawing
17 which
presents the potentiometric surface ofthe silurian dolomite aquifer.
Besides the sand bodies at
the east and south sides ofthe site, this is the only unit proposed to be monitored.
In developing
28
the potentiometric surface ofthe silurian dolomite aquifer, Ms. Underwood intentionally chose
to exclude data from pre-existing dolomite monitoring wells GIOD, GI2D and G26D.
(Cy. Hrg.
Volume 20, Page
19).
She explained her omission by describing the heads in those wells as not
being “representative.”
(Cy.
Hrg.
Volume 20, Pages 20, 23).
However, these wells were
deemed to
be sufficiently “representative” to be part ofthe monitoring program at the existing
site, and to be
included in all groundwater flow maps previously tendered to the TEPA
in
connection with significant permit modification
applications.
(Karlock Exhibit #
3; C-802).
On
the other hand, Ms. Underwood included water levels to existing facility monitoring wells (28D
and 29D which were taken seven years prior to development of the rest ofher data).
(Cy. Hrg.
Volume 20, Page 30),
When pressed, she did acknowledge that using geologic data from
different times and dates is not usually done and is not a good practice.
(Cy. Hrg. Volume 20,
Page
31).
Ms. Underwood also conveniently ignored water level data from one of the new
observation wells (B 103 Comp)
developed in connection with investigation of the proposed
expansion.
(Cy. Hrg. Volume 20,
Page 49).
Charles Norris was highly critical of the proposed groundwater monitoring system
calling it “problematic.”
(Cy. I4rg. Volume 23, Pages 96, 97).
Due to the changes in heads and
flow in the aquifer resulting from the cut-offof recharge in the groundwater high after the site is
developed, the current proposed positioning ofmonitoring wells is in no
way guaranteed to be
correct in the future.
(Cy. Hrg. Volume 23, Page 92).
As previously discussed, lowering of the
aquifer heads
by cutting offrecharge to
the current groundwater high point at the center if the
site would also have the secondary effect ofreducing the already
speculative inward gradient.
Also, despite the fact that potentiometric surface maps of the existing facility previously
submitted
to the IEPA demonstrate a-typical channelized
groundwater flow in the aquifer, Ms.
29
Underwood proposes two of the down gradient monitoring wells in the silurian dolomite aquifer
on
the east side ofthe site to be
fifteen hundred feet apart.
(Cy. Hrg.
Volume
21, Page 42).
Given the sudden and unexpected discontinuities and sand bodies encountered at the site and the
possibility of solution channels, this is an impossibly large interval, particularly since general
flow from the groundwater high in the middle of the site is toward this gap in the
monitoring
wells.
Moreover, the monitoring program does not account for the downward gradient observed
in all
fourlocations
where both shallow and deep wells were
installed in the aquifer.
This
downward gradient could only result in contaminants traveling downward in the aquifer below
the monitoring horizon.
(Cy. Hrg. Volume 23, Page 97).
A similar omission was condemned by
this Board in County ofKankakee vs The City ofKankakee. et al, (PCB 03-31, January 9,2003
at Page 27) when the Board found Town & Country’s
modeling and
groundwater impact
evaluation, “failed
to measure vertical flow ofcontaminants in the silurian dolomite aquifer.”
Ms. Underwood’s exclusion ofdata used in all previous applications to the EPA in
connection with the existing site, and her inclusion of data from completely different time
periods allows her to map the groundwater flow in the aquifer as somewhat more predictable
than her peers at Rust Engineering (now Earthtech) had previously argued to the JEPA.
The
position ofWMI’s former hydrogeologist exactly corroborates Mr. Norris’ conclusion that
groundwater in the aquifer under the existing site
is subject to strong,
localized,
channelized
flow.
(Karlock Exhibit #4;
C-803, 804).
At the siting hearings, Ms. Underwood
dismissed and
disagreed with this conclusion.
(Cy.
Hrg. Volume 21, Page 39).
Mr.
Norris demonstrated that using all of the available monitoring data from the existing
facility confirms
the strong,
localized groundwater flow at the existing facility.
(Cy. Hrg.
30
Volume 23, Page
45).
He also pointed out that the existence of such other channelized flow
under the much larger proposed expansion site is unknown, but certainly should be
suspected.
The evidence raises a strong possibility of solution channels in the dolomite at elevation 575
MSL (approximately twenty-five feet below the top ofbedrock).
Ms. Underwood acknowledged
that residual shale was present at elevation 576
in boring B-103
and that there was spontaneous
bore hole widening observed at elevation 577 and
575
in borings B-iSO and B-152, respectively.
(Cy. Hrg.
Volume 20, Pages 49,
52,
53).
Mr.
Norris also reviewed this data and concluded that
it most likely represented
a
solution channel in the dolomite which needed to be
confirmed or
ruled out for purposes ofestablishing correct monitoring well locations.
(Cy. Hrg. Volume 23,
Pages 37-41).
(4) The Groundwater impact assessment is based on
such erroneous assumptions that it
is of no value.
WMI’s
ultimate conclusion, namely that the facility is
so designed, located and proposed
to be operated so that the public health, safety and welfare will be
protected is based upon the
results ofa groundwater impact assessment conducted under the supervision ofJoan
Underwood.
The groundwater impact assessment is nothing more than a computer simulation,
and like
all
computer simulations, the qualify of the outputs can be no better than the quality of
the inputs.
Ms. Underwood claimed that she had performed a worst case analysis model run, but
the results ofthat run are not reported in the Application.
Instead, the Application contains only
the “average case.”
Whether a “worst case” scenario passes is, therefore, completely
speculative.
The only modeling evidence that the County Board had to
review, and the only
modeling evidence that this Board can look at, is the evidence presented in the Application.
31
The modeling evidence presented in the groundwater impact assessment in the
Application is worthless because it does not,
in any way, represent conditions
actually
encountered at the site.
Ms. Underwood modeled the thickness of the Till underneath the liner
as sixteen feet, when in fact the soil borings demonstrate that at a number of locations the
thickness ofthe Till between the bottom ofthe liner and the aquifer will be three feet or less.
This Brief has also made previous reference to the inappropriateness of modeling the
permeability of the Till based upon laboratory tests
which measure only matrix permeability
rather than the slug test results which would take into account secondary permeability features
actually existing
in the materials tested.
The permeabilities obtained in the laboratory tests for
the Wedron Till are approximately 3000 times lower than the permeabilities actually observed in
the field.
In some cases, the slug
tests show permeabilities 10,000 times greater than the
laboratory matrix permeability results.
(Cy. Hrg. Volume 21, Pages 30,
3 1).
The computer program used for the groundwater impact assessment requires separate
input parameters for the permeability ofthe recompacted clay and
the 60 ml. HDPE liner which
comprise the composite liner.
Ms. Underwood chose to
use a figure averaging both ofthese
components together with the result that the three feet ofrecompacted clay is modeled as being
4500
times less permeable than what WMI’s engineer said could be achieved.
(Cy.
Hrg. Volume
21, Pages 31, 32).
Averaging the very low permeability of the plastic component ofthe
composite liner with
the recompacted clay portion is ektremely misleading and skews
the
calculated result because the lower permeability in the recompacted clay will result in drastically
reduced travel times through the clay.
Even though the 60 ml. plastic
sheet is usually assigned a
separate permeability value, in that case the value does not represent travel time
through the
plastic sheet, but rather an estimation ofthe total
flux through the plastic sheet based upon the
32
assumed number ofpin hole defects.
The true permeability of the plastic portion ofthe
composite liner is zero in those places where there areno defects, and 1.0 (meaning
contaminants pass through instantly) in those areas where there are actual defects.
Since
leachate travels through the plastic liner defects more or less instantaneously, it becomes critical
to know the true permeability of the recompacted clay for accurate modeling purposes.
Ms.
Underwood, by averaging the permeability ofthe plastic and
the clay, has effectively played a
mathematical trick which slows down the computed travel time by a factor of4500.
(5)
WMI’s non-conservative approach to monitoring well exceedances at the existing
facility negatively impacts its credibility.
WMI included in the Application a summary of the current groundwater assessment
status for the existing facility.
(Siting Application Volume
1, Table 2-3).
The Table lists
thirteen specific monitoring well exceedances presently at issue.
In each case, WMI argues that
the exeeedance is not attributable to
leachate releases from the existing
facility.
The
conservative approach should be that when there is
a monitoring well exceedance, the operator
should assume the worse until it is disproven.
Instead, the referenced Table as well as the
operating record history testified to by Mr. Norris indicates a pattern
where WMI will do almost
anything to avoid acknowledging any responsibility
for an exceedance.
The testimony of WMI’s in-house hydro-geologist, Terry Johnson,
is illustrative of this
attitude.
He admitted that monitoring wells which showed continuing exceedances such as
1 3D
and
135 were simply decommissioned.
(Cy. Hrg. Volume 26, Page
110).
In the case of other
exceedances, confirmation sampling was simply not performed or, if performed, not performed
on
a timely basis.
(Cy. Hrg. Volume 26, Pages 96,
99).
Mr. Johnson had
the full
litany of
33
excuses for exceedances from contaminated samples to laboratory errors to State standards being
too stringent.
Charles No~is’testimony that monitoring well history demonstrates a long time
pattern ofleachate releases into the groundwater from the
existing facility is much more
persuasive.
In responding to reported monitoring well exceedances, WMI has also
employed the
mathematical trick known as “intra-well comparison,” whereby contaminant levels in one well
are not compared to baseline levels in an up-gradient well but rather are compared to
the
previous monitoring history in that well.
Norris demonstrated graphically
in Karlock Exhibit
#7.27 (C-840, 841) how the concept ofintra-well comparison can be used to increase the AGQS
(applicable groundwater quality standards) in
a given well over a period oftime, sometimes by
as much as a factor ofone hundred.
(Cy. Hrg.
Volume 23, Pages 94,
95).
(6)
WMI’s proposed location is functionally the same as the one found unsafe in this
Board’s Decision in County of Kankakee vs City of Kankakee.
This argument has already alluded to various elements
in WMI’s site investigation
and
characterization which received negative comments in this Board’s decision in
County of
Kankakee vs. City of Kankakee, (PCB
03-31, January 9, 2003).
WMI participated in the City of
Kankakee hearings challenging Town & Country’s hydro-geologic conclusions,
and WMI also
argued the unsuitability of the Town & Country site in its brief to this Board.
Therefore,
it
is not
surprising that Ms. Underwood in her testimony tried to differentiate her conclusions from those
previously offered by Town & Country’s witnesses.
However, in doing so she also repudiated
previous conclusions and interpretations
consistently argued by her colleagues to
the IEPA.
Besides the repudiation of channelized flow already discussed, Ms.
Underwood in
her testimony
34
rejected the established conclusion from previous investigations ofthe existing WMI site that the
uppermost aquifer included the weathered dolomite and basil sand above the dolomite.
(Cy.
Hrg. Volume
19, Page
127).
Her testimony at the siting hearing was that there is no weathered
material above the bedrock.
(Cy. Hrg. Volume 22,
Page 32).
While she opined that the
uppermost aquifer was perhaps two hundred feet thick, she had
no plan to
monitor the lower
portion ofthat aquifer.
She acknowledged WMI’s previous permit applications to
the JEPA
in
which the uppermost aquifer was defined as being ten feet thick, and the dolomite below that
was identified as a confining unit, but added that this was done for modeling purposes only.
Ms.
Underwood acknowledged that the conclusions regarding the nature of the uppermost aquifer
found in WMI‘s previous site investigations and permit applications to the IEPA had, in
fact,
been used by Town & Country to support their virtually identical conclusions about the
hydrogeologic conditions at their closely adjacent site.
(Cy. Hrg. Volume 22, Page 38).
No matter how Ms. Underwood wants to gloss over the fact, it is impossible
to
escape the
conclusion that WMI’s proposed site is hydro-geologically the same as the site rejected by this
Board in County ofKankakee vs. City ofKankakee.
While the Board,
in its decision, in the
County ofKankakee case does not mention the over engineered and enhanced designed features
ofthe proposed Town & Country
site such as the twelve foot thick side liners and the four and
one-halffoot recompacted structural fill underneath the bottom liner, the fact remains that the
WMJ design is a bare bones design not exceeding the State minimum in
any component.
This
Board in County of Kankakee criticized Town &
Country for attempting to
characterize the
bedrock based on only one deep boring, but is that really any different than Ms.
Underwood’s
35
admission that WMI had no borings which completely penetrated what she believed to be the
aquifer?
Accordingly, this Board must reject WMI’s proofs regarding the safety and suitability
of the proposed location and design as insufficient.
VII.
The Application For Siting Approval Is Not Consistent With The Kankakee
County Solid Waste ManaEement Plan.
Petitioner notes
initially that while WMI presented testimonial evidence through Sheryl
Smith that its Application was consistent with the County Solid Waste Management Plan, WMI
declined to offer the Plan or its amendments into evidence, thereby making a meaningful
analysis of Ms. Smith’s testimony somewhat difficult. WMI’s omission notwithstanding, the
October 2001
and March 2002 Plan amendments are in the record as Exhibits
1
and 2
attached to
Objector, Merlin Karlock’s, Motion to Dismiss filed on the first day of the siting hearing.
(C-
70 1-706).
The County Solid Waste Management Plan,
itself, was offered by Objector, Michael
Watson, as his Exhibit #
7 at the Board Hearing on May
6Ih~
The Kankakee County Solid Waste Management Plan states in pertinent part:
“Groundwater Hydrology.
The protection ofthe groundwater is oneof the
primary concerns in siting a landfill.
A
site should not be located above or
near a groundwater recharge zone or a heavily utilized water supply aquifer.”
(Board Hearing, May 6, 2003
Watson Exhibit #7, Page 330)
The testimony ofCharles Norris that the silurian dolomite aquifer is a heavily used drinking
water aquifer is un-rebutted.
(Cy.
Hrg. Volume 24, Page
104; Volume
25, Page
67).
No WMI
witness offered testimony to the contrary, or for that matter, any testimony on this subject.
The
only possible factual finding, therefore, is that because the proposed site is located above a
heavily used drinking water supply, it is not consistent with the County Solid Waste
Management Plan.
36
The March
12,
2002 amendment to the
Solid Waste Management Plan states in pertinent
part:
“The owner or operator of a proposed new landfill or landfill expansion in
the County shall be
required to establish a property value guarantee program
for households within a site specific distance from the proposed landfill site,
such property value guaranteeprogram to be prepared by an independent
entity satisfactory to the County.”
(C-705).
The
only testimony on this subject came from Sheryl Smith who acknowledged that no
independently prepared property value guarantee program existed.
(Cy. Hrg.
Volume
10, Pages
85,
86).
Similarly, the March
12, 2002 Plan amendment called for the owner of a new or
expanded landfill to post either an
environmental contingency escrow fund or some other type of
payment or performance bond or policy of environmental impairment insurance in a form and
amount acceptable to the County.
(C-705).
Once again, Sheryl
Smith, WMI’s expert on Plan
consistency, could not conclude that this requirement had been met.
(Cy. Hrg. Volume
10,
Pages
81,
82).
In addition, Petitioner Karlock adopts as his own the arguments set forth in the Brief of
Petitioner, Keith
Runyon.
Based on the foregoing, it is unequivocally clear that WMJ has failed
to prove consistency with the County Solid Waste Management Plan.
The County
Board finding
to the contrary is against the manifest weight of the evidence.
VIII.
Conclusion
For the foregoing reasons, Petitioner, Merlin Karloek, respectfully prays that the decision
of the Kankakee County Board granting site location approval to WMI for a new regional
37
pollution control facility be reversed or, in
the alternative, that the same
be remanded for a new
hearing consistent with the jurisdictional and
fundamental requirements ofthe Environmental
Protection Act.
GEORGE MUELLER,
P.C.
Attorney at Law
501 State Street
Ottawa, IL
61350
Phone: (815) 433-4705
BY:
Respectfully Submitted,
iey
