ROCHELLE WASTE
vs.
CITY COUNCIL OF THE
CITY OF
ROCHELLE,
ILLINOIS,
Respondent.
CLERK’S
OFFICE
~LBOARD
JUN
it
92003
STATE OF IWNOIS
Pollution
Control Board
)
(Pollution Control Facility Siting
)
Appeal)
)
)
TO:
See Attached Service List
NOTICE
OF FILING
PLEASE TAKE NOTICE
that on June’16, 2003 there has caused to be filed with the
Clerk ofthe Illinois Pollution Control Board located at the James R. Thompson Center, Suite
11-
500,
100 W. Randolph St., Chicago, Illinois,
60601-3218 via U.S. Mail an original and 9 copies
ofthe following document,
a copy ofwhich is attached hereto:
PETITION TO INTERVENE
(;~Q~
(~Q~\J
GEORGE MQELLER, Attorney at Law
PROOF OF SERVICE
I, Pat Wheeler, a non-attorney, on
oath state that I served a copy of the above
listed
document 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
16, 2003, with proper postage pre-paid.
Pat Wheeler
GEOR GEMUELLER, P.C.
Attorney at Law
501 State Street
Ottawa, IL
61350
Phone: (815) 433-4705
SUBSCRIBED AND SWORN TO
before
BEFORE THE
)
me
2003.
OFFJCIAL
SEAL
KAREN K.DONNELLY
NOTARYPUBLIC
STATE OF ILLINOIS
My Cømmissjo~
Expires
09-20-2005
SERVICE LIST
Bruce McKinney
Rochelle City Clerk
420 N.
Sixth St.
Rochelle,IL
61060
Glenn C.’ Sechen
Hearing Officer
Schain, Burney, Ross & Sitron, Ltd.
222 N.
LaSalle St.,
Suite
1910
Chicago, IL
60601-1102
Charles F. Heisten
Rochelle City Attorney
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61101
Michael F.
O’Brien
Attorney for Applicant
McGreevy, Johnson & Williams
P.O. Box 2903
Rockford, IL
61132-2903
RECE1~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLI~R~S
OFFt’~
JUN
192003
ROCHELLE
WASTE DISPOSAL, L.L.C.,
)
STATE OF
IWNOIS
Pollution
Control Board
Petitioner,
)
)
No.: PCB 03-218
vs.
)
)
(Pollution Control Facility Siting
CITY COUNCIL OF THE CITY OF
)
Appeal)
ROCHELLE, ILLINOIS,
)
)
Respondent.
)
PETITION TO INTERVENE
Now comes the Concerned Citizens OfOgle County, a voluntary association, and
pursuant to 35 Illinois Administrative Code
10 1.402 Petition To Intervene as an Additional Party
Respondent herein, and in support thereofstate as follows:
1.
Concerned Citizens OfOgle
County participated actively as a Party Objector in the
local regional pollution control facility siting hearings which are the subject ofthe Petition To
Review filed by Rochelle Waste Disposal, L.L.C.
In fact, Concerned Citizens Of Ogle
County
was the only Objector at said proceedings represented by counsel, Concerned Citizens Of Ogle
County cross-examined witnesses, and Concerned Citizens OfOgle County presented
affirmative evidence in opposition to the application for siting approval.
2.
Concerned Citizens Of Ogle
County is a voluntary association ofcitizens in the
community ofRochelle, and they would be adversely affected by a decision reversing the correct
finding ofthe Rochelle City Council.
3.
That participation ofConcerned Citizens OfOgle County as an additional Party
Respondent would not materially delay these proceedings, and that this Petition is expeditiously
brought.
4.
That the Board’s Rules provide that intervention may be permitted when the person
seeking to intervene, “may be materially prejudiced absent intervention.”
Attached hereto and
made a part hereof is a letter datedMay 16, 2003
from Michael F. O’Brien, one ofthe attorneys
for Rochelle Waste Disposal, L.L.C. to the Rochelle CityCouncil, which letter in essence
states
that the Rochelle City Council’s denial of the application for siting approval is a breach ofthe
City’s Host Agreement with the Applicant, and that said breach excuses the Applicant’s
performance obligations regarding closure and post-closure of an existing facility.
Rochelle
Waste Disposal, L.L.C. ‘s application for site location approval was an application for vertical
and horizontal expansion ofan existing facility.
During the sitinghearings, Concerned Citizens
OfOgle County presented evidence that leachate escapes from the existing facility are
contaminating groundwater, and that Rochelle Waste Disposal, L.L.C. is aware ofthose leachate
escapes.
Ifthe evidence ofConcerned Citizens OfOgle County is correct, the closure and post-
closure responsibilities ofRochelle Waste Disposal, L.L.C with respect to the existing facility
pursuant to its Host Agreement with the City ofRochelle would include significant and
presumably very expensive remediation ofthe existing site.
A threat by Rochelle Waste
Disposal, L.L.C. to walk away from those remediation obligations, and its letter ofMay 16, 2003
is clearly such a threat, may have a chilling and intimidating impact on the Rochelle City
Council.
To the extent that the Rochelle City Council
is concerned that denial ofRochelle
Waste Disposal,
L.L.C.‘s application for siting approval may result in the City ofRochelle being
solely responsible for remediation ofthe existing facility, Concerned Citizens Of Ogle County
feel that they and the other citizens ofRochelle, Illinois may be materially prejudiced by not
being allowed to participate in vigorously, and without reservation, defending the correctness of
the City Council’s decision to deny siting approval.
WHEREFORE, Concerned Citizens Of Ogle County respectfully pray that this Court
grant them leave to
intervene as additional Parties Respondentherein.
Respectfully Submitted,
Concerned Citizens Of Ogle County
BY:
~QQor-i
Th~r
Attorney
GEORGE MUELLER, P.C.
Attorney atLaw
501 State Street
Ottawa, IL
61350
Phone:
(815) 433-4705
May 16, 2003
SENT VIA FAX,
ORIGINALMAIL
Rochelle CityCouncil’
Office oftheCity Clerk
Rochelle CityHall
Sixth Street &‘Fifth Avenue
-
Roehelle, IL 61068-0601
Re:
Notice ofDefault
Dear Council Members:
Rochelle WasteDisposal, L.L.C. (“RWD”~
intends to appeal the recent decision
ofthe City ofRochelle (“the City”) in RWD’s local siting proceeding.
Whilethe PCB
may grantRWD’s local siting application, as a protective measure, RWD herebynotifies
the City that the CityCouncil’s course of conduct in ‘connection with RWD’s application
for siting approval oftheproposed landfill expansion (“the expansion”) constitutes a
default under the Agreement for Operation/DevelopmentofCity ofRochelle Landfill No.
2 entered into on April 26,
1995,
and amended January 21,
1999 (“the Host Agreement”).
Thus, pursuant to Section
12.3 oftheHost Agreement,’RWD ‘hereby demands that the
City cure that default.
The HostAgreement requires RWD to seek the expansion, obligating kWD to
“use its continuing best efforts to
obtain siting approval for an expansion” (Section 7.1)
and obligating the Cityto
“cdoperatewith OPERATOR in its efforts, to obtain siting
approval for an expansion ofthó ~
5200,000 Initiation Fee payable under the HostAgreement was, in part, in
consideration
ofthe City granting RWD the exclusive right to expand the facility.
The Host Agreement also imposes a duty onthe City, “its officers,
board
members and employees, to
not take any action which has the intended or probable
effect of interfering unreasonablywith the operation
or
expansion’
ofthe facility”
(Section
5.2)
(emphasis added).,
Additionally, the City is required to make every
reasonable ‘effort to insure that factual and technically accurate information concerning
the landfill facility is made’available to the public.
Rochelle City Council Members
Page 2
May 16,
2003
In reliance’oti the terms ofthe HostAgreemeut, RWD has acquired the property
known as the Babson Farm as well as theproperty known as the Creston Parcel.
At the
request ofthe City, RWD has annexed both ofthese parcels
to
the City,
in each case
under an AnnexationAgreement, which specifically provides for the useofthe property
as a landfill.
Despite its obligations under the terms ofthe Host Agreement, the City did
not cooperate with RWD in the planning,
development or consideration ofthe expansion
and has completely failed to make accurate information concerning the landfill available
to the public.
Moreover, we believe that the City has, indirectly and without informing
RWD or the public, taken action which has the intended orprobable’effect of interfering
unreasonably with the operation or expansion ofthe facilityby adopting requirements or
conditions that have not been disclosed.
Ifthe City’s breach ofthe Host Agreement is not cured by the action ofthe PCB
or otherwise, the City’s course ofconduct violates the City’s obligations under the Host
Agreement as well as the implied obligation of“good faith” which is imposed on
the City
under Illinois law, thereby relieving RWD from further monetary and other obligations
under the Host Agreement.
Wenote that the City’s course of conduct also constitutes
“Uncontrollable Circumstances” under Section
13.4 ofthe Hbst Agreement in that denial
ofthe expansion constitutes an “act, event or óondition..
.
that has had.,
.
a material
adverse effect on” RWD’s rights under the Host Agreement and was “beyond the
reasonable contiol of’ RWD.
Those circumstances, ifnot cured, thus further excuse
RWD’s obligationto perfomi. various non-monetary obligatioris under the Host
Agreement, including providing the City with disposal capacity for 20 years under.
Section 2.2, providing free waste disposal under Section 3.1~rese~~g’’such
capacity
under Section 3.9 and assuming the closure and post-closure costs for the existing
facility, including Unit I (Section 3.12).
‘
Because these issues are quite serious and involve substantial damages, we want
to make sure that the’City is on notice at the earliest opportunity and will summarize the
legal bases for our claim in order that the City Council may carefullyconsider its
obligations.
‘
‘
When the Host Agreement was executed, the‘City was not the siting authority in
that the land had not yet been annexed to the City.
The City was the lessor ofthe
existing
-fheflfty~dassumedi!~dutyto
cooperate~
sitirrg
approval for an expansion ofthe existing landfill facility” in its
proprietary
capacity as
lessor.
Thus, ifRWD had’ applied for‘an ‘expansion with Ogle County as the siting
authority, the City clearly could nOt have voted to obj,ect to the expansion consistent with
its “Cooperative Guarantee~”AlthQugh the City subsequently became the siting
authority
for the expansion, its duties under the landfill lease remained unchanged, arid itwas
obligated to communicate effectively with RWD and, the public before, during and
after
the proceeding regarding the City’s requirements,
standards and conditions associated
with the landfill and to approve a reasonable expansion recommended by the City’staffs
independent consultants
and attorneys as’well as by the Hearing Officer.
r
Rochelle City Council Members
Page3
May 16, 2003
‘
‘Itithe event of litigation, the questionwill be whether the City’s action in,
rejecting such a reasonable proposal had “the intended orprobable”effect ofinterfering
unreasonabl~with
the:opeiation or expansion ofthefacility”
(SectiOn’5.2).
Thus,
although RWD’s difflcuit’burden in an -Illinois Pollution Control Board
appeal may be to
show that the City’s
legislative
decision
was “contrary to the manifest weight ofthe
evidence,” which could be established “only ifthe opposite result is clearly evident,
plain, or indisputable from
a review ofthe evidence”(File v.
D
& L
Landfill, Inc., 219
Ill.App.3d 897,
901,
579
N.E.’2d
1228,
1232, 162 Ill.Dec. 414, 418
(5*h
fist.
1991)), the
standard for reviewing the City’s
proprietary
-obligation under the “Cooperative
Guarantee” ofthe landfill lease is quite different.
RWD can establish that the Cityhas
violated its
proprietary
duty to
cooperatemerely by showing that the
application
proposed a reasonable expansion, that it ‘was recommended by the City’s independent
consultants and attorneys as well as by the Hearing Officerand that the City Council’s
denial ofsitingwas an unreasonableinterference with the expansion that is at the heart of
theHost Agreement landfill lease arrangement.
-
The CityCouncil’s decision to deny sitingwas quite obviously based
on public
clamor rather than the evidence adduced at the hàaring.
The’ City Council made no
inquiries ofits’ independent consultants and attorneysduring the hearing and did not
communicate with RWD or the‘public withrespeetto any standards, requirements or-
conditions that it-w&u’ld’ apply to the facility~
‘RWD believes that the evidence will
ultimatelyestablish
that the City Council’completelyfailecl to consult with’its,
independent consultants
and ‘attorneys retained by the City to advise it and also failed to
advise RWD regarding the City’s requirements prior to the filing.
RWD further believes
a lack ofcooperation willbe shown in that the Citygave no consideration to what special
conditions might have been imposed in order to approve the expansion.
See. e~g.,
County
ofLake v. Illinois Pollution Control Board,
120 Ill.App.3d 89,
457
N.R2d
1309,
79
Ill.Dec.
750
(2d L)ist. 1983) (siting authorityhas authority to impose conditions
on site
approval).
Clearly, the evidence will show that the City Council did not discuss the
evidence, the proposed conditions or any otherconditions orrequirements during the
public meeting at which the‘~ote~was
‘taken~
This c~mplet&failure’to
inform RWD‘of the
City’s position is a failure to act in good faith and a ‘failure to cooperate.
The City‘Council’s vote ~
the evidence, which clearly showed that there is only one regulated recharge area in the
state ofIllinois and that it i’s located near Peoria and is nowherenear the existing facility.
Similarly, the City Council’s failure to
discuss or even consider special conditions until
that was virtually insisted upon by the City’s siting counsel in the subsequent meeting
evinces further disregard for the City’s duty ‘to cooperate with RWD “in its
efforts to
obtain siting approval for an expansion on the existing landfill facility” (Section
5.3).
Thus~although the City ‘COuncil may have broad
legislative
authority in siting
matters, the City also has
propriàrary
duties’under the Host Agreement to cooperate with
RWD and to not interfere unreasonably with such
an expansion.
A municipality may
Rochelle City Council Members
Page4
May
16, 2003
have
theiegislative
authority to enact an ordinance or resolution that breaches its
contractual obligations under. a lease‘ofmunicipal property, but that does not preclude an
action ‘forbreach ofcontract in connectionwith a lease entered into in its
proprietary
capacity.
Seem
re Wa-Wa-Yanda, Inc. v. ‘Dickerson,
18 A.D.2d 251,254,
239 N.Y.S .2d
473,
477 (1963). ‘Under such circun-istan’ces “use
ofthe ordinance was merely the
City’s way ofbreaching the contract.”
B & E Hauling, Inc. v. Forest Preserve District of
DuPage County. 613
F.2d 675, 680
(7th
Cir.
1980).
In B & B Hauling a landfill operator leased the.Mallard Lake Recreational
Preserve from the DuPage County Forest Preserve District with the exclusive right to
operate and maintain a sanitary landfill.
When the Forest Preserve District subsecp.iently
adopted new ordinances prohibiting certain waste from being deposited at the landfill
site, the Seventh Circuit found there was a claim againstthe Forest ‘Preserve District for
violatingthe Contract Clause ofthe United States Constitution, whichprovides “No State
shall..
.
pass any.
.
.
law impairing the Obligation of Contracts.”
That is somewhat
similar to what had happened in the Wa-Wa-Yanda case where the town had leased land
for a marina and the sale ofgasoline but subsequently enacted an ordinance barring the
sale of gasoline.
Such an abrogation ofcontract rights is not permissible,
and someone
contracting with a municipality, such as RWD, has a right to
either enforce its contract
against the City or obtain damages-for the contract’s unconstitutional impairment.
One
way orthe other, RWD
is entitled to
enforce the City’s.cpntractual duties under the lease
made in the City’s
proprietary
capacity.
That-right to
enforcethe contr~ctis not the same
as a right ‘to challenge the City’s
legislative
authority, and the‘City’s exercise,of
legislative authority in violation ofsuch a contract entitles RWD to
contract remedies.
See also Mid-American Waste Systems, Inc. v.
City
ofGary, 49 F.3d 286
(7th
Cir. 1995)
(lessee ofthe Gary landfill couldclaim damages against the ,City under its lease for
interferiun with the oneration ofthe landfilfl.
,
Rochelle
City
Council Members
Page 6
May 16,2003
Host Agre~ementare to be consideredmade “Under Protest.” RWD has expended
millions ofdollars in good faith in reliance on the City’s assurances and on the City’s
express obligation to comply with its cooperation obligations under theHost Agreement.
Thus, RWD expects that theCity will either cure its default or answer in damages or such
other remediès~s
may be appropriate:
‘Very truly yOurs,
ROCHELLE WASTE DISPOSAL, L.L.C.
By MeGreevy, Johnson & Williams, P.C.
-
‘
Its Attorneys.
By
-
Michael F.
O’Brien
One ofits Attorneys’
cc:
Dennis Hewitt,,’Esq.
-
Charles -Heisten, Bsq.-
~
‘~MOB/sffi
00327276.DOC