BEFORE THE ILLINOIS POLLUTION CONTROL BOAR1~ECEIVEDCLERK’S OFFfCE

WASTE MANAGEMENT OF ILLINOIS,

Petitioner,

vs.

)

)

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLINOIS

)

)

Respondent.

)

)

)

)

)

)

STATE

~4UG

OF

1

IWNOIS

2003

OllUtIOfl Control Board

)

Case No. PCB 03-144

TO:

All Counsel ofRecord

NOTICE

OF FILING

PLEASE TAKE NOTICE

that on July

_______,

2003, the undersigned filed with the

Illinois Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, an original

and nine copies of the Response of County Board of Kankakee County, copies of which are

attached hereto.

HINSHAW AND

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

2003

Respectfully Submitted,

This document utilized 100

recycled paper products

INC.,

On behalf ofthe

70371175v1 826549

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

WASTE MANAGEMENT OF ILLINOIS,

)

CLERK’S

OF!rT~

INC.,

)

AUG

12003

Petitioner,

)

STATE OF ILLiNOIS

)

Pollution Control

Board

vs.

)

)

Case No. PCB 03-144

COUNTY BOARD OF KANKAKEE

)

COUNTY, ILLiNOIS

)

)

Respondent.

)

)

)

RESPONSE OF COUNTY BOARD OF

KANKAKEE

COUNTY

NOW COMES the County Board of Kankakee County, Respondent in the above matter,

and in response to Petitioner Waste Management of Illinois (WMI) Motion to Dismiss Appeal of

Siting Conditions, states as follows:

1.

That the Respondent admits the allegations set forth in paragraph 1 of Petitioner’s

Motion to Dismiss.

2.

That the Respondent admits the allegations set forth in paragraph 2 of the

Petitioner’s Motion to Dismiss.

3.

That the Respondent admits the allegations set forth in paragraph 3 of the

Petitioner’s Motion to Dismiss.

4.

That the Respondent admits the allegations set forth in paragraph 4 of the

Petitioner’s Motion to Dismiss. The Respondent further affirmatively attaches hereto as

Exhibit A and incorporates by this reference a fully executed copy of the Resolution of

the Kankakee County Board approving the Agreement Regarding Conditions.

---

5.

That the Respondent admits the allegations set forth in paragraph 5 of the

Petitioner’s Motion to Dismiss.

6.

That the Respondent admits the allegations set forth in paragraph 6 of the

Petitioner’s Motion to Dismiss.

7.

That the Respondent admits the allegations set forth in paragraph 7 of the

Petitioner’s Motion to Dismiss.

8.

That the Respondent admits the allegations set forth in paragraph 8 of the

Petitioner’s Motion to Dismiss.

9.

That the Respondent admits the allegations set forth in paragraph 9 of the

Petitioner’s Motion to Dismiss.

WHEREFORE, the Respondent respectfully request that this Board dismiss Appeal No.

PCB 03-144, and provide such other relief as may be appropriate.

Dated:

______________________,

2003

Respectfully Submitted,

(

/~\

I~

On behalfofthe

HINSHAW AND CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

70371175v1 826549

This document utilized 100

recycled paper products

2

One of Attorneys

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07/29/2003 16:25 FAX

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RE:

LANDFILL

EXPANSION SITING

Whereas,

the Legislature of the State of Illinois has enacted the

Illinois Environr~ienta!

Protection Act,

§ 415 ILCS 5/39.2(e) which provides, in pertinent part and substance, as

follows:

“In granting approval for a site the county board or governing body of the

municipality may impose such conditions as may be reasonable and necessary

to accomplish the purposes of this Section and as are not inconsistent with

regulations promulgated by the Board”, and

Whereas, the

County and Waste Management of Illinois, Inc., (‘Waste Management”)

prior to the County’s having made a final local siting decision, had heretofore enlered

into a certain written host agreement, as provided under 415 ILCS 5/39.2; and

Whereas, the County Board of the County of Kankakee has heretofore approved Waste

Management’s application for local siting of an expansion to its existing poHution~control

facility, and at the time of said approval imposed certain conditions, over and above the

conditions and terms negotiated in the original host agreement; and

Whereas, by resolution No: 2003-03-11-743 adopted on the

11th

day of March, 2003

the County Board of Kankakee County formed a sub-committee of the Planning-Zoning-

Agriculture Committee, known as the Implementation Committee, for the purposes of

implementing the siting conditions placed upon Waste Management; and

Whereas, differences in interpretation ofthe aforesaid statute, and in the imposition of

said conditions, relating to the legitimacy and authority ofthe County to impose ~aid

conditions, have resulted in certain litigation arising which now remain pending I~etween

Waste Management and the County of Kankakee; and

Whereas, that sub-committee, in seeking to implement the special conditions, r~solve

said differences, end said litigation, and yet insist on the protection of its citizens~has

negotiated a proposed amendment to the Host Agreement, which it recommends be

approved, so as to provide for the special conditions becoming partof the siting

approval, amend the Host Agreement, and put an end to the litigation between the

County Board and Waste Management; and

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07/29/2003

16:25 FAX

i~J004

Whereas, the County Board finds that these differences have been negotiated ir~good

faith, and an agreement reached, which will be in the best interests and protectidn of the

public; and

Whereas, said Agreement has been reduced to written expression, is attached ~ereto

and incorporated herein, satisfies all conditions imposed by both the Regional Plén

Commission and the County Board, follows the recommendations of the negotialing

“Implementation” Committee, and will put to rest all pending litigation between th~

County and

Waste

Management.

Whereas, the Implementation has recommended adoption ofthe Agreement attached

hereto as Exhibit A.

Now, therefore, be

it resolved that the attached Amendment to Host Agreement,

Exhibit A, be and is hereby approved and adopted by the County Board of Kankakee

County; and further, that the County Board Chairman be and is hereby directed and

authorized to execute said Agreement upon passage ofthis Resolution, so that the Host

Agreement may be amended, the conditions of siting be approved and ratified, th~right

ofthe parties be articulated and preserved, and all pending litigation between Waste

Management and the County put to rest.

ADO PTED and PASSED this 231h day of July, 2003.

Karl A. ruse, County Board Chairman

Attest:

Bruce

b~

Clark, County

c~t

Clerk

Resolution #2003-07-23-&46

---

STATE OF ILLINOIS,

County of

Kankakee,

5

SS.

I,

Bruce

Clark, Cou:nty Clerk of said County, and custodian of he Records and Files

of said

office do hereby certify

that

the annexed

is

a true and correct copy of

adopted and passed by the, Kankakee County Board,

~M

~

.°~

~

003~oj~c~ei4~~ ~

•f~,~ •~ppd~tiç~sp~Waste

~~

~~

as appears

from

the

Files

and

Records now in my c~tody.

iN

TESTIMONY WHEREOF, I

have hereuntoset my

offical seal,

at

Karikakee,

in said County,

this

- .

~

day of

JP,1Y

A.D. ~

2003

(~iUi~JCJCL&I

By....~

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07/29/2003 16:25 FAX

r~oo5

EXHIBIT

AGREEMENT

REGARDING

CONDITIONS

This Agreement Regarding Conditions is

entered

into

this

~

day ofJuly 2003~,by

and between Waste Management

of Illinois, Inc., a Delaware corporation

authorized

to do

business in Illinois and

having an

office at 720

East

Butterfield Road, Lombard,

illinois

60148

(“Waste Management”)

and

the

Coi.~ntyofKankakee (the “County”).

Recitals

A.

Waste Management

owns

and

operates

the

Kankakee Landfill (“Landfill”) located

on property commonly known as 180 E. 6000 South Road, Chebanse, Illinois 60922.

B.

Waste Management

and the County

are

parties

to an

Amended

and Restated

Host

Community

Agreement

dated December 21, 2001 (“Host

Ag

eesnent”) pursuant to which

cert~in

benefits

and protections are

provided to the County if the Landfill is expanded.

C.

Waste Management filed an application for local

siting

approval ofan expansion

ofthe Landfill on orabout August 16,

2002

D.

The County granted local

siting

approval for the

expansion

of the Landfill on

January 31,

2003,

subject to certain conditions

which it

deemed necessary to include as part! of

such siting approval.

E.

One of the

conditions

imposed by the

County

is that Waste Management “sh~1l

install and

maintain

a double

composite liner.”

F.

Waste Management has filed an appeal of the double composite

liner

condition

with

the

Pollution Control

Board

(PCB 03-144).

G.

Waste Management

contends

that the regulations promulgated by the Pollution

Control Board which pertain to landfill units such as that proposed by Waste Management in

its

application

and

pertinent provisions of

the Illinois Environmental

Protection

Act

do i~ot

specifically require that the

expansion

ofthe

Kankakee Landfill be designed

or

constructed with

a double composite liner. The

County asserts

that the

imposition

of the condition relating to

installation

and

maintaining of a double composite liner is allowed by the provisions of

Section 392(e) ofthe Act.

H.

Patrick Engineering, the environmental

engineering firm retained

by the Coim~y

in

connection

with the

Lax~dfiIl expansion, has

confirmed that the additional

design and

construction

costs associated

with

a double

composite

liner will be approximately $11,286,018

(see

Attachment A) and that this

will add approximately 38

cents in

costs for

each

ton ofwaste

expectedto be disposed ofin the expansion ofthe Landfill.

I

I.

Another condition

imposed

by the

County

is that the “active face shall be a

maximum

of 180 feet by 120 feet, excepting the area allowed for

random

inspections,

unless an

alternative minimum

size

is specifically approved by the

County Board”

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07/29/2003

16:25 FAX

I~j006

2

J.

Waste Management

asserts

that

this condition could

hamper

the safe

and

efficient

operation of

the

Landfill,

and

has

filed an appeal ofthe active face condition with

the

Pollution

Control

Board (PCB

03-144).

K~

Both

parties desire

to amicably resolve

these

matters in a

manner

consistent yith

Section 39.2 of theillinois Environmental Protection Act.

NOW,

‘IHEREFORE,

in consideration of the

covenants

set

forth in

this

Agreemcnt,~the

County

and

Waste Management

agree

as follows:

I.

The

County agrees

to pay forty percent (40) of the

costs

of

installation

of~the

double composite liner required by Criterion 2

Special

Condition X

through

a reduction in the

per

ton host fees to be

paid pursuant

to

Paragraph

4 ofthe Host

Agreement

of 150

per ton.

2.

The

County

confirms that Condition 2.p. does not preclude Waste Martagenient

from adjusting the final contours for the expansion,

provided

that (1) the

maximum

height of~he

landfill

and

the lateral extent of

the

landfill do not exceed themaximum height

and lateral

ext~nt

shown on the

plans

provided in

the

siting application

and (2)

the waste airspace

volume

does not

exceed

the design.volume of50,692594 cubic

yards

contained

in the application.

3.

The

County

also

confirms

that

the

double composite

liner design submitted

~by

Waste Management to the

Kankakee

Planning

Department

on or

about February

20, 2003

fi4ly

complies

with

Criterion 2,

Special

Condition X ofthesiting approval.

4.

Waste

Management

agrees

to

withdraw its

appeal ofthe double composite liner

condition,

and

to waive

any rights

it mayhave to

claim

that the double composite liner

conditibn

is a TMChange of Law”

which

could

modify the price

protection afforded

Kankakee municipalities

pursuant

to Paragraph 18 of the

Host Agreement.

Waste

Management also

agrees

to waive

any

rights it may have to claim

that

the double composite liner condition is a “Force

Majeureu

~as

defined in Paragraph 28 oftheHost Agreement.

I

5.

Without further approval from the County, Waste Management mayoperate up

to

three active working faces, which when combined may not

exceed a width

of

750

feet, except

during the placement of the

first

lift or

last

lift in

any aie&

In

the

event

Waste Management

requests

a variance from the above due to

inclement weather

or for

any other reason,

the County

Health

Department is authorized to consider Waste Management’s

request and

to

grant

a

variance in

the event the request

does not adversely impact the safety, health

aud

welfare of

the

County, Lu

the

event the

County Health Department

denies

WasteManagement’s request,

Wa~te

Management may

petition

the

County

Board to consider

its

request.

6.

Waste Management agrees to withdraw

its

appeal ofthe activeface

conditIon.

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07/29/2003 16:26 FAX

1

1~j007

3

rN

WITh~ESS

W~EREOF,the

County

and

Waste Management have executed this

Agreement

as of

the

~3’-

day ofJuly 2003.

KNKAKEE

COUNTY

WASTE

MANAGEME~F

OF ILLINOIS,

iNC.

B~____________________

By:____________________

—

Its County

Board Chairperson

Its Vice

President

ArrEST:

ArrEST:

Clerk of

Karikakee County

Assistant

Secretary

~

7D)$~9J~vI~6S49

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07/29/2O~3 16:26 FAX

008

3

IN WITNESS WHEREOF,

the County

and

Waste Management have executed

this

Agreement as of the

_______

day ofJuly 2003.

KANEAKEE

COUNTY

Its County Board

Chairperson

ATTEST:

Clerk of

Kankakee County

Assistant

Secretary

c\mydzna\docs’4cnnis~j.~~ccments2003\kankcondi~ionsagm1O7O3

7O369~r9v~B26~49

By:

By:

ATTEST:

---

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code of Civil

Procedure, hereby

under

penalty of perjury under the laws of the United States of America,

certifies that on July

~f3c~

,

2003, a copy of the foregoing was served upon:

Dorothy M. Guim, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601-3218

Donald J. Moran

Pederson & Houpt

161 N. Clark Street, Suite 3100

Chicago, IL 60601-3242

(312) 261-2149

(312) 261-1149 FAX

Elizabeth Harvey, Esq.

Swanson,

Martin &

Bell

One

IBM Plaza, Suite

2900

330 North Wabash

Chicago, IL 60611

(312) 321-9100

(312) 321-0990

FAX

Mr. Brad Halloran

Hearing

Officer

Illinois Pollution Control Board

100 West Randolph, 11th Floor

Chicago, IL 60601

(312)814-8917

(3 12) 814-3669 FAX

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,,

Illinois, proper

postage prepaid, before the hour of 5:00 P.M., address~das above

~‘N~

FirmNo.695

7

HINSHAW & CULBERTSON

(

100

Park Avenue

P.O. Box

1389

Rockford, Illinois 61101

(815)

490-4900

70358848v1 826549