~j~CEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

JUL

7

2003

CITIZENS

AGAINST LANDFILL EXPANSION,

)

)

STATE OF IWNOIS

Petitioners,

PollutIon

Control

Bocrrd

)

vs.

)

Case NO.: PCB 03-236

)

AMERICAN

DISPOSAL SERVICES OF ILLINOIS,

)

INC. and LIVINGSTON COUNTY BOARD,

)

LIVINGSTON COUNTY, ILLINOIS,

)

)

Respondents.

)

MOTION TO DISMISS

Now comes American Disposal Services OfIllinois,

Inc., Respondent, by its

attorneys,

Douglas Lee and George Mueller, and moves this Board to dismiss the Petition To Review

Pollution Control Facility Siting Decision filed by Citizens Against Landfill Expansion (CALE),

and in support thereofstates as follows:

1.

415

ILCS 5/40.1(b)

states in pertinent part that, “a third party other than the applicant

who participated in the public hearing conducted by the countyboard or governing body ofthe

municipality may petition the Board within

35

days for a hearing to contest the approval ofthe

county board or governing body of the municipality.”

2.

There is no question that Carolyn Gerwin, as an individual objector, participated in the

siting hearings before the Livingston County Board and would be entitled to bring a Petition To

Review the siting decision in her own name.

However, Citizens Against Landfill Expansion

(CALE), an unincorporated voluntary association ofresidents as referred to in the Petition To

Review, did not participate in the siting hearings before the County Board.

---

3.

Attached hereto and made a part hereof as Exhibit “A” is the Entry ofAppearance

filed by Carolyn K. Gerwin on February 21,2003, wherein she indicates that she will be

participating as both a witness and as an objector.

No mention is made ofher representation of

any other persons or groups.

4.

During the local siting hearings, Carolyn K. Gerwin never mentioned or otherwise

indicated that she was representing a citizens’ group in general, or the Citizens Against Landfill

Expansion in particular.

While Ms. Gerwin did vaguely indicate that she was acting as the

attorney for some other objectors, she declined to name those individuals or to be more specific

as evidenced in the transcript.

Attached hereto and made a part hereofas Exhibit “B” is page

14

ofthe transcript ofthe local

siting hearings where, when Ms. Gerwin was initially asked by the

Hearing Officerto identif~’

herselfstated, “Carolyn Gerwin on behalfofmyselfand several

private citizens.”

At the outset ofher opening

statement, Carolyn Gerwin stated, “My name is

Carolyn Gerwin, and I am here today officially as an

objector and

as objectors’ counsel.”

(Siting

Hearing Transcript Page 19 attached hereto and made a part hereofas Exhibit “C”).

Ms.

Gerwin

also made an unsworn public comment where she stated in pertinent part, “You will hear from

me in two different modes today, public comment and closing arguments.

Public comment as a

citizen, closing arguments as an objector’s representative attorney.”

(Siting Hearing Transcript

Page

1410 attached hereto and made a part hereofas Exhibit “D”).

5.

There are only two references in the entire siting hearing record to Citizens Against

Landfill Expansion, the first a reference in an unsworn public comment by a citizen named Julie

Russow, (Siting Hearing Transcript Page

641

attachedhereto and made a part hereof as Exhibit

“E”), and a reference in a question by Ms. Gerwin to

one ofthe applicant’s witnesses, (Siting

Hearing Transcript Page

1169 attached hereto and made a part hereof as Exhibit “F”).

---

6.

Whether a citizens’ group opposed to the siting application existed at any time prior to

the hearings is irrelevant.

The record is clear that Carolyn Gerwin was more ofan active

objector than a representative of objectors.

Due to the fact that she is an attorney, she was able

to avail herselfofthe right to give opening and closing statements and to present and cross-

examine witnesses.

However, there is no indication in the record that she represented anyone

other than herself.

WHEREFORE,

forthe foregoing reasons, the Petition To Review Pollution Control

Facility Siting Decision filed by Citizens Against Landfill Expansion should be dismissed.

American Disposal Services of Illinois, Inc.

BY:

~

41~

Q

One Of~Its

Attorneys

GEORGEMUELLER, P.C.

501 State Street

Ottawa, IL

61350

Phone:

(815) 433-4705

Fax:

(815) 433-4913

---

Carolyn K. Gerwin

705 South

Locust Street

Pontiac,

Illinois

61764

815-842-2486

F’lL4E~D

February

21, 2003

FEB

2

1

2003

Judith K. MeGlasson

Livingston

County

Clerk & Recorder

~~)ITHj~

McGLASSON

112 West Madisov

COUN~C~~

Pontiac IL

61764

Re:

~ub1icHearings

on

Sit~gofE?rpansion

ofLivingston Landfill

Dear

Mrs.

MeGlasson,,

This

is to notify you

that

I would

like

to participate

in

the

hearings

on

expansion of

the

Livingston Landfill.

I

will

be

participating as both a witx~ss

and

an “objector,” i.e., a

person who

may

ask questions.

I ama registered attorney,

Illinois

RegistrationNumber

6197167.

Exhibits:

I

plan

to

present tb~

exhibits attached hereto.

Witness List:

Doris &

Archie

Burnside; Julie Russow; Bett Schmidt; Dr. Joseph Gerwin

Sondra

Sixberry and Keith Runyon..

Yours tnily,

c*t7~1~

yn

Getwin

Eiic.

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13

than 180 days from the date the request was

filed.

Now at this time I would like the

members of the Agricultural Committee of the

Livingston County Board who are present to

stand and identify themselves for the record.

I believe they are seated behind the counsel

tables here.

Members of the board?

MR.

GOEMBEL:

I’m Jon Goeinbel.

I’m

the chairman of the Ag

& Zoning Committee.

MRS.

NOODBURN:

I’m

Delores

Woodburn.

MR.

KIRKTON:

I’m

Roger Kirkton.

MR.

FLOTT:

Bill Flott.

MR. NATZKE:

Arnold Natzke.

HEARING OFFICER:

And I would like

the members of the Livingston County Board

who are present to stand and identify

themselves for the record.

MRS. RAPP:

Jeanne Rapp,

chair of

the board.

MS. KUDRICK:

Catherine Kudrick,

board member.

MR. FLESSNER:

Ronald

Flessner.

14

MR. SPAFFORD:

John Spafford.

MR. HOGAN:

Dan Hogan.

MR.

FAIRFIELD:

Bill Fairfield.

MR. KNUDSEN:

George Knudsen.

MR. WAHLS:

Roger Nahls.

MS.

HOLZ:

Helen Holz.

MR. BORNGASSER:

Carl Borngasser.

HEARING OFFICER:

Thank you.

Now

I

would like counsel

for the respective parties

to stand and identify themselves for the

record starting with Mr.

Lee.

MR.

LEE:

Doug Lee.

MR. MUELLER:

George Mueller.

MR. CLARK:

Larry Clark on behalf of

the Agricultural Committee.

MR. BLAKEMAN:

Tom Blakeman, advisor

for the Ag Committee and the Livingston

County Board.

MRS. GERNIN:

Carolyn Gerwin on

behalfof myself and several private

citizens.

HEARING OFFICER:

Are there any

preliminary motions or matters that should be

taken up at this time?

Hearing none,

are

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15

1

there any stipulations with regard to the

2

hearing notices or any other matters?

3

MR.

LEE:

Mr. Hearing Officer,

I

4

believe there is a stipulation among counsel

5

that the Applicant’s Exhibit

1 be and is

6

identified as the application as supplemented

7

including the drawings and the operating

8

record which is at the County Clerk’s office,

9

and we thought it would be easiest not to

10

clutter this room even further with that

11

exhibit.

I believe it’s stipulated that that

12

exhibit be admitted.

13

HEARING OFFICER:

And that would

14

include the seven volumes, the drawings, and

15

also the supplemental volume.

Is that

16

correct?

17

MR.

LEE:

Plus the operating record.

18

HEARING OFFICER:

Any objection to

19

that being admitted as Applicant’s Exhibit 1?

20

MRS. GERNIN:

Do we need to use

21

these all the time?

22

HEARING OFFICER:

You know,

I think

23

it would be helpful.

I think there are

24

people in the back that may have difficulty

16

hearing us without them.

MRS.

GERWIN:

On behalf of the

citizens,

we were not able to access parts of

the operating record.

It wasn’t

filed along

with the rest of

it right away, and we just

want to note that that,

you know,

we don’t

stipulate that that was timely.

I just want

to preserve that issue.

HEARING OFFICER:

Mr.

Lee?

MR.

LEE:

Nell,

I don’t think that’s

quite

correct.

It was all filed at

the

courthouse at

the same time.

There was an

additional

copy made available at the

library.

The volumes of the application were

made available before we learned that there

was a desire for the operating record compact

disks, but it was all filed officially at one

time.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Including the

HEARING OFFICER:

operating record?

MR.

LEE:

Yes.

HEARING OFFICER:

to allow the application

record to be admitted as

Okay.

I’m going

and the operating

Applicant’s Exhibit

---

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~

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LNLTh~iJ-~i-~

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Fi~A1(.LN(.1

17

1.

Would the Applicant like to make an

opening statement?

MR.

LEE:

Yes.

Thank you.

As Mr.

McCarthy said and as

I identified myself

earlier, my name

is Doug Lee, and I’m

privileged to be one of the attorneys

representing the Applicant, American Disposal

Services of Illinois, this morning.

I am

a

partner in

a small

firm in Dixon and

sometimes

——

which is about two hours north

of here.

And sometimes people think that if

somebody comes

from some distance away,

he

must be very smart or must really know

something that’s relevant to the proceedings.

Maybe when we are done, you’ll think that.

fear,

however, that I’ll always be remembered

in Livingston County as the dope who forgot

to notify the Leonards the first time

through.

So that’s on me.

That’s why we’re

here now,

and

I apologize for the

inconvenience that caused everybody.

With us this morning is our

co—counsel,

George. Mueller.

Mr. Mueller

probably knows more about hydrogeology than

y other lawyer and I’m pleased to have him

ere today.

Representing the Applicant are

‘hn McDonnell and Dave Bryant whom most of

.~

know.

The lead engineer on the

lication is Devin Moose who is also here,

i, there are

a number of other folks and

that you will hear from as the

~ring

progresses.

I won’t

-—

I’ll try not to speak

g here, but

I think everybody realizes

t

this

is a large project for American

posal

Services, for its parent company,

Waste,

for Livingston County Board,

for

the

residents of

Livingston

County.

e’s

a lot at stake

here for everybody.

lerefore, anticipate and expect that you

give the application and this hearing

riousness and the attention that it

res

and

deserves.

Mr.

McCarthy

referenced briefly

the

situation the County Board finds

in, not as legislators,

but as members

~Jury.

And he also mentioned the

i

of proof that has with the criteria,

18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

the nine and ten criteria that he talked

about.

It is

a burden of proof that we

have.

It is a burden of proof that we welcome.

It’s an opportunity we welcome.

We’re

anxious to start telling our story.

We are

very proud of this project.

And we’re confident that after

you’ve heard all the evidence, you’ll

find

that not only did we satisfy. the criteria but

also that we demonstrated that the project is

a good one for Allied Waste,

for American

Disposal, for Livingston County,

for the

citizens of Livingston County.

And we

appreciate your attention.

Thank you.

HEARING OFFICER:

Mr. Mueller, do

you desire to make any cornment~?

MR. MUELLER:

We do not,

Mr.

McCarthy.

HEARING OFFICER:

Mrs. Gerwin?

MS.

GERWIN:

Good morning.

My name

is Carolyn Gerwin, and

I am here today

officially as an Objector and as Objectors’

counsel.

I am an attorney in the Illinois

bar.

I was admitted in 1987.

I practiced

1

environmental law in the corporate world

for

2

nine of those years on behalf

——

we used to

3

say we represented the polluters,

lust to be

4

real clear about

it, but my area was not in

5

trial

work but was in negotiation and merger

6

and acquisition type work.

So this

is a new

7

and strange milieu for me.

So I apologize if

8

I’m not as smooth as some of the other

9

counsel here today.

10

I see my role as an advocate, an

11

advocate and a champion of the County, the

12

local people,

and the County Board which may

13

surprise, some of you given how things have

14

gone the last few months, but that in fact is

15

our intent and motivation.

16

A preliminary matter that

I just

17

wanted to address this morning is the issue

18

of annexation by the City.

There have been

19

rumors about the City annexing or wanting to

20

annex the landfill, and

I know that would be

21

a concern to the board.

And my fear is that

22

if that concern is not addressed, that the

23

actual factual criteria will take a back seat

24

to the issue of the intergovernmental

Page 17 to Page 20

19

20

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L4.L’~Vr.LLJLJ

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March

10-14,

2003

1409

not the public.t’

And that was as per their

opinion.

And there was also representatives

there that were concerned about the Stauffer

Chemical superfund site, and they did mention

6

that the former EPA omnibusman was forced to

7

resign because he came under fire by the U.S.

8

EPA.

He had to spend all his time defending

9

his actions in helping the citizens with

10

their complaints that he had no time to

11

devote to the job,

so he resi~ned. And I’m

12

sure that there’s somewhere that you can get

13

all that information on that C-Span2

14

presentation.

15

I realize that all the employees at

16

the landfill work very hard and they are

17

conscientious in doing their job, and

I hope

1.8

that the board members came here with an open

19

mind and are going to really consider all the

20

evidence that was presented to them.

21

But I am mostly concerned about the

22

health and welfare of the Livingston County

23

residents, those who use the water sources,

24

and also for the employees of the landfill

1410

~1

who work so closely around the fumes andall

2

the other exposures there.

Money cannot buy

3

health.

4

That’s the conclusion of my talk.

5

HEARING OFFICER:

Thank you.

Miss

6

Gerwin,

you wanted to make a public comment?

7

MS. GERWIN:

If it’s all

right,

I’d

8

like to stand over here by

ray box of papers.

9

Well,

this is

it.

It’s Friday.

You will

10

hear from me in

two different modes today,

11

public comment and closing arguments.

Public

12

comment as

a citizen.

Closing arguments as

13

an Objector’s representative attorney.

I

14

promise to be as brief as

I can and try not

15

to repeat anything.

I do have to maintain a

16

certain pace for the court reporter she tells

17

me.

18

First thing

I want to say is that’

19

yesterday

I decided

I didn’t have to testify

20

because

I don’t think

I need to put into the

21

official record of this proceeding anything22

more than the written versions of the

23

information that

we have collected.

And if

you’ve seen Mr. Mueller’s cross-examination

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1

12

3

1411

1

techniques, you know why I might hesitate

to

2

testify.

He

is one scary dude.

To a trial

3

lawyer, that’s

a very high compliment.

t’m

4

very impressed with his skills.

5

So

I will make a brief statement of

6

some of the facts

we have gathered that

7

relate to the criteria.

I’m going to rapidly

8

describe some of the most helpful info that

9

we found which we will submit as written

10

comments or documents

in our written comment

11

in this 30—day period.

I have extra copies

12

of some of then; and if anyone wants to get a

13

headstart on their homework and would like to

14

look at a particular document, just ask me,

15

and I’ll see

if I’ve got a copy.

I’ve got

16

extra copies of some things but not

17

necessarily everything.

18

My public comment will also deal

19

with what I see as the choices now before

us.

20

Now that we have hopefully absorbed all this

21

various information,; and when I say we,

I

22

mean the County because I believe we are all

23

in this together.

Of course,

only the

24

Board’s vote will determine our future.

You

1412

1

have an unbelievably serious duty here.

2

Then we will have closing arguments

3

in which

I will briefly review the facts that

4

I think are particularly important to the

5

siting criteria.

6

So public comment.

Very quickly,

7

I’m going to go through these documents.

And

8

if I’m going too fast,

flag

rue down.

We have

9

—-

I’m going to show you a copy of the

10

American

-—

or Illinois—American Water

11

Quality Test.

We’ve gotten a lot of

12

questions about that during the past months.

13

You can get this from the water company, and

14

they will indicate what the levels are in the

15

drinking water.

16

Another question I would get quite

17

often is concerns about cancer and other

18

diseases in the community, and I have been

19

hearing that since

I came here.

And I

20

decided,

well,

let’s see if we can really

21

find out what is going on.

And so somebody

22

at the hospital,

I don’t know this person,

23

but they provided some documentation, and

24

then

I followed up on it and found the

EX~H)J3IT

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March

10-14,

2003

641

citizens’ concerns than we are here.

And

this is the kind of activity that Citizens

Against Landfill Expansion would like to see

our own county officials take.

And we

believe it’s their obligation and

responsibility to the local

citizens.

When I phoned the McHenry Solid

Waste Coordinator,

she relayed to me that at

the present time,

there is not a landfill in

McHenry County.

Presently, discussion is

underway to promote a transfer station.

And

when I spoke to their office on Friday of

last week,

I was informed they are involved

in hearings right now regarding the transfer

station.

And she also continued by sharing

the most exciting information of all,

that

being a new technology called closed loop

gasification.

Regarding the closed loop

gasification process, the City of Morris

is

researching the subject

as we speak.

I

discussed this with the Grundy County Solid

Waste Management Coordinator who referred me

to the mayor, Dick Kopczick,

with whom I

.~

642

talked to just last week.

Mr.

Kopczick

2

stated the general feeling there is that

3

Grundy County has done its fair share of

4

collecting waste

from other communities.

5

This parallels with the feeling of many

6

people

here.

There, county board

7

representatives met with city officials

8

together so they could all know what was

9

going on.10

There are also numerous health

11

issues to think about as well as the concern

12

for water supplies.

Unfortunately,

I have no13

data to present.

I feel that we all seem to

14

take

these

two

precious

gifts

for

granted

and

15

may want to admit there

is no evidence that16

living near landfills promotes good health in

17

the long run.

18

The current issues regarding19

expansion have caused me to think about many

20

topics,

and you’ve just heard a couple of

21

them, and I’m thankful for what

I have

22

learned.

However,

I have to say the focus of

23

my comments comes back to

the County Board

for so much responsibility lies within this

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643

1

governing body.

2

It seems odd to me, more like

3

unbelievable, that

the only hope you appear

4

to have for economic development in this area

5

is a landfill.

I’m not always at the

6

meetings, so I’m sure you are working on

7

other topics.

But it seems

like a lot of

8

reliance is placed on the money that’s going

9

to come from this landfill should the

10

expansion go through.

11

Is this all the better you think of

12

the citizens?

Pontiac has so much potential.

13

Look around you.

We are situated in a place

14

that could and would benefit greatly with

15

some creative, positive thinking.

With

16

Chicago only a couple hoursto our north

17

and Bloomington,

Springfield,

and St. Louis

18

to

the south and being situated along a major

19

interstate,

there should be plenty of

20

opportunity for Pontiac.

21

Last fall,

I was drawn to the cover

22

of the current Pontiac phone book the minute

23

I laid eyes on

it, and I brought it here for

24

you to

see.

The historic courthouse,

the

644

1

park.,

the geese in the forefront, and the

2

river bridge.

How could a person not be

3

drawn to it?

It’s very appealing.

4

The citizens of this community

5

deserve the scene presented on this

6

publication,

not one that sits in the shadow

7

of garbage.

Which would you rather be

known

8

for?

I’d be happy to pass these around if

9

anybody is interested.

And I’d like

to just

10

ask when is enough enough?

11

I don’t blame anybody for selling

12

their property to the landfill because who

13

wants to live next to one?

The total and

14

absolute responsibility falls to the County

15

Bo~rdmembers of today and of the recent past

16

for allowing the landfill to grow to such

17

magnificent proportions.

18

And also, this is

one of those

19

what—ifs Mr. Vogel was referring to.

Since

20

closed loop gasification is being considered

21

as near to us as Morris, this might be a

22

worthy what-if.

If this new closed loop

23

gasification process catches on,

and it may

24

take several years, then the financial burden

I

---

1169

1171

I

It’s that that may happen during the peak

•2

time of construction for a month or two—month

3

period of time.

Q.

That figure appeared on some of the

materials that our Objector’s group or CALE

6

had circulated, right?

7

A.

Yes.

8

Q.

And was that the figure that was

9

presented by Mike Friend at Issues

& Eggs at

10

the Elk’s Club?

11

A.

It was.

12

Q.

As a manager,

I take

it that you are

13

probably aware of new studies on the issue of

14

the human health hazards from diesel exhaust,

15

correct?

16

A.

I’m aware

that there has been a

17

study done.

That’s really all

I know about

18

it.

19

Q.

Are you aware that the new

20

regulations greatly burden the sale of diesel

21

engines that don’t meet new standards for the

22

production of pollutants?

23

A.

I’m not aware of that standard.

24

What

I am aware of is that the manufacturers

1170

of heavy equipment are continually building

product to reduce emissions.

Q.

On page 1, you also have information

about weather closures?

A.

Yes.

Q.

And I’d like to ask about gusting

conditions.

Do you also have a limitation on

your operations

if there are intermittent

gusts?

A.

No.

Q.

Isn’t

it true that the facility has

filed for a Title V air permit

in the past

year?

A.

Yes,

it has.

Q.

And that permit was published

sometime

it was either summer or fall of

2002,

right?

A.

I don’t know.

I can’t speak

to

that.

Q.

Who handles

the air permitting

issues

at the facility?

A.

The permitting issues are typically

done by the environmental manager

in

conjunction with consultants that he

has

WATSON REPORTING SERVICE

(800)905-0002

Page 1169 to Page 1172

k~Mi7

f

1

hired in order to do that.

2

Q.

Who is the environmental manager?

3

A.

John McDonnell would be the

4

environmental manager.

5

Q.

And are you aware that a public

6

hearing on that Title V draft permit is going

7

to be held sometime in the near future?

8

A.

I was made aware of that,

I think,

9

the day before yesterday.

10

Q.

Have you been given a date for that

11

hearing?

12

A.

No,

ma’am.

13

Q.

Neither have I.

You indicated that

14

in 1997 was when the facility started to get,

15

quote,

busier, end quote?

16

A.

Yes.

17

Q.

And by that, you mean-that there

18

were more trucks coming in out at the

19

facility, right?

20

A.

Yes.

21

Q.

Is it also true that the facility

22

was becoming substantially more visible to

23

people

from the highway at that time?

24

A.

The site had always been visible

1172

1

from the highway.

I mean the height was

——

2

it was starting to get higher.

There’s no

3

question about that.

4

Q.

On the slide on page

4 entitled

——

I

5

still say slides.

I guess I’m kind of dating

6

myself.

I don’t know what you call them in

7

PowerPoint screens.

8

A.

Slides are fine.

9

0.

Okay.

Start talking about records

10

pretty soon.

I don’t know what that

is

11

anymore.

1—55 litter under your

12

three—strikes-and—it’s-out policy, you note

13

you

began

keeping

score

in

April

2002,

14

correct?

15

A.

Yes.

16

Q.

And

that

was

approximately

one

month

17

before notice was published that American

18

Disposal was going to seek this major

19

expansion,

correct?

20

A.

Yes.

21

Q.

Is the three—strikes—and—you—are-out

22

policy required under our current host

23

agreement?

24

A.

No.