)

Petitioner,

)

)

vs.

)

)

CITY OF KANKAKEE~

ILLiNOIS, THE CITY)

OF KANKAKEE, ILLINOIS CITY COUNCIL,)

TOWNAND COUNTRY UTILITIES, INC.,

)

and

ANTKAKEE REGIONAL LANDFILL,

)

L.L.C.,

)

)

)

Respondents.

WASTE MANAGEMENT OF ILL~OIS,

iNC.,

Petitioner,

)

vs.

THE CITY OF KANKAKEE, ILLINOIS CITY

COUNCIL, TOWN AND COUNTRY

UTILITIES, INC.,

and KANKAKEE

REGIONAL LANDFILL, L.L.C.,

)

)

)

)

Respondents.

)

COUNTY OF KANKAKEE, ILLINOIS gnd

)

EDWARD D. SMITH, KANK~~KBE

COUNTY)

STATE’S ATTOR±’~BY,

)

Petitioners,

vs.

)

)

)

)

CITY OF KANKAKEE, ILLINOIS, THE CITY)

OF KANKAKBE~ILLINOIS CITY COUNCIL,)

TOWN AND COUNTRY UTILITIES, INC.,

)

and KANKAKEE REGIONAL LANDFILL,

)

L.L.C.,

)

)

Case No.

PCB 04-35

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JAN2n2004

STAT

PoIIutio

Case No.

PCB 04-33

Controj

Boafd

Case No.

PCB 04-34

)

)

)

)

)

Respondents.

---

-I

REPLY TO REBUTALS TO

BRIEF

OF BYRON SANDBERG THIRI) PART APPEAL TO PCB.

Petitioner BYRON

SANDBERG

submits

this

reply to rebuttals of

his

third

party appeal

based

on the

100 year Flood Plain and Public

Health,

Welfare and

Safety

Criteria of the August

18th,

2003

decision of

the

City

of

Kankakee,

Illinois

City

Council

(City)

granting

the

application of

Mr.

Tom Volini

who

operates as

town & Countiy Utilities,

Inc

and Kankakee

Regional Landfill

LLC (T&C

or

Mr. Volini) for

siting approval ofa new pollution facility

NO

REBIJTAL

OF

MY

BRIEF

WAS

RECEWED

FROM

CITY

OF

KANKAKEE

DESPITE

PHONE

CALLS

ASKiNG

FOR

IT.

ACCORDiNGLY,

THE

CITY

DII)

NOT

REFUTE

MY

ARGUMENTS

THAT

THEY

DII)

NOT

WEIGH

THE

MANIFEST

WEIGHT

OF

EVIDENCE

APPROPRIATELY

IN

REGARD

TO

THE

FLOOD

PLAIN

CRITERIA

AND

MISLEADING

TESTS.

I

received

no

critique of

my brief from the

City

of

Kankakee despite

telephone

calls to the

city

askingfor such a critique.

They were simplyunable to refute

my

brief

including the following points.

1.

The pictures and detaileddescription offlooding

and

the

flood

plain in my brief.

2.

My

reference to the record

of

the

movie

and

detailed

descriptions of previous flooding

in the

transcript of the previous hearing which was madea

part

ofthe

record

of this heaiing.

3.

That

they proceeded with

two

expensive hearings despite

their

city

planner Mr.

Sawyer

being

notified

by

a copy of

a letter from Illinois

Department of Natural Resources (DNR) to the applicant,

(Mr.

Volini) stating that Mr. Volini

~mustreceive a permit from this office (DNR)

prior

to the initiation

of

construction~

and

directing

that

his

finn

~sub4nitinformation

providing

specific

details

of

the

proposed

work

and

an

analysis

demonstrating

that

your

proposed

project

will

meet

the

applicable

standards of the Part 3700

Rules.

DNR

stated they had a copy of the plan from

the

application and stated

~the project does include work within the floodway and requires a permit from this office prior to

the

initiation of constniction”

Based on this letter, it

was obligation of

the

City

of

Kaithakee to

not

begin hearings until an application was submitted that met

the

DNR

Rules

was

submitted and approved.

Even a city

planner without any

landfill credentials should have

been

able

to determine from the

---

4

bare contents of the

letter that this landfill could not be constructed hereunless:

(1)

There was no

work

in

the

floodway

and

(2)

An

application

was

submitted

and

permit

granted

prior

to

construction.

Therefore

the

responsibility

of the city was

to

require

the DNR application to be

submitted

and

approved

before proceeding with any

healing.

It was wrongful for the

city

to hold

two

hearings

for

a landfill

application

and

plan

contrary

to

DNR

rules

that cannot be

constructed

without

a

permit

from DNR.

4.

As

a

result of

holding a hearing for a

landfill application that

they were informed could not

be

constructed

according

to

DNR part

3700

Rules.

the

City

of

Kankakee

caused

the

Pollution

Control Board the expense of

Iwo

hearings and

the research upon which their decision was

based.

The

City

caused the

Citizen

group CRIME

to expend $17,000 for

expert Stuart

Cravens,

Minnie

Creek

Drainage District

to

expend

$5000

for a lawyer, Waste Management to expend a larger amount

for

a

lawyer and witnesses,

and myself to expend 7 weeks

of research,

attending hearings,

writing

briefs,

etc

for the

two

hearings

and

appeals.

350 hours of work if compensated at

the

modest rate of

$100 an

hour

is

$35000.

In

addition,

Mark

Benoit

and

Larry

O’Connor

expended

considerable

time

organizing,

collecting and accounting for the

funds

raised

for the

crime

group and doing

research that supported my

brief.

I

was paid

$390 for expenses which I expended for the first hearing

by

CRIME.

They had no

money to pay my expenses for the second hearing.

The City of

Kankakee

should be required to reimburse

Larry

O’Connor,

Mark

Benoit

and

myself who

served

pro

bono

without

any

pay

except

part

of

my

expenses first.

Next in order of compensation should be the citizens who contributed:the$ 17,000 and the

Drainage District $5000.

5,

Since

the

city

did

not file a critique regarding my facts andarguments of

misleading testimony,

they did

not refute my

argument

that they

did

not properly weigh the Manifest Weight of the Evidence on

that issue.

---

4

TOWN

AND

COUNTRY

UTILITIES

WAS

UNABLE

TO

REFUTE

MY

EVIDENCE

AND

ARGUMENT

ON

THE

FLOOD

PLAIN

CRITERIA

OR

THE

ARGUMENT REGARDING

THE

MISREPRESENTED TESTS.

Mr.

Mueller’s critique contained no

substance,. Mr. Mueller should spend more time reading and

less time writing and raising pointless and inappropriate questions.

It is

not true that I ignored citations

and references to transcripts except in

the

first

few

explanatory

paragraphs.

I referred in my brief to Mr.

Moran’s brieffor references to the misrepresented tests, but now I find

they are

in the

brief

of Mr. Porter

of

the

Helston Firm that represented

Kankakee

County..

His

numbers differ a bit from mine, but

the)’

support my

conclusion that the tests were in six cases faked and in the rest misrepresented..

The numbers

differed because I referred to

the

number of wells and Mr. Porter refers

to the number of tests.

Mr. Porter

also refers

to a number of tests that were done and should have been included in the report, but were not.

I

did

not

know about this serious problem of the applicant picking

out

only the tests that supported the

point he

wanted to make and

disregarding the

others or I would have included it.

I saw

no

point in

extending

my

analysis to

duplicate the

work of

Mr.

Moran

and Mr.

Porter

so I

went

no

further

than

counting the number ofwells as they appeared on the application.

Mi. Mueller said the landfill site was

not in a floodplain because it

was not a NEMA determined

floodplain.

It may be news to Mr.

Mueller,

but

floods

are

determined

by

excess

rainfall

which is an

natural event or an Act of

God, not

by

NEMA..

The letter from the Illinois

DNR

was part of my brief

that Mr. Mueller commented on.

~Theletter states

DNR

rules apply ~whetheror not the stream has been

included in the typical mapping from the FederalEmergency Management Agency

(FEMA)”

There is no

requirement in

the Pollution Control

Board rules that

require a flood

plain

to be designated

by FEMA.

Regarding Mr. Mueller’s allegations that the

landfill is protected from the

flood plain.

Mr.

Moose first

testified

in

reply

to my

questions

stating that the ditch

spoil banks protected the

landfill.

Then It was

brought

out later that afternoon after I had left the hearingthat they will going to fill to the

628

level.

This

is

on page 80, volume 5A of 6/28/03 transcript.

I enclose a copy ofthat pageof my brief.

Briefly, it states

---

4

that

the

DNR

rules

do

allow fill to be placed in the

floodway and questions that fill will

protect from

flooding.

An embankment of

fine grainedmaterial that met specifications forthe liner would be required

instead of fill, but neither would be permitted by

the DNR in the

floodway.

In

fact,

most of the

landfill

falls in the floodway.

.

Mr. Mueller’s comments ignore the

enlargement of the floodplain by

the water

displaced by the landfill.

This is the concernof the DNR and should be that ofthe PCB.

Mr.

Mullerdid not

commenton my

statements regarding that the test wells readings were faked

and misrepresented in the application.

Instead, he againglorifiedthe supposed credentials of his

witnesses whofaked and represented the test well readings and Mr.

Daniels who was naïve enough to

base histestimony on these readings.

A license to practice engineering or hydrology does not

require a

graduate school educationwhich I have.

My graduate school education was

only place I was really taught

to

think and

do research.

At

72, 1 can still do it better thanthese licensed

engineers.

It does not require

a graduate school educationto acquire an engineer degree.

One only has to have an undergraduate

degree andpass an open book

multiple choice test.

II’ one does not pass the test the first

time,

he or she

has another chance to take it.

Apparently,

onedoes not

learn

it is wrong to fake and misrepresent tests

in an undergraduateeducation or by thistest.

.

My cousin who has bothagraduate school education and

an engineering license said we have this kind of problem because we have made it

to easy to become a

licensed engineer and that there are too

many of them.

Due to this surplus of engineers compared to

legitimatejobs,

some find it necessamy to pervert their skills to misrepresent tests to serve the

interest-s of

their employer as in this case.

I plan to file complaints with the Illinois Licensing Board against the

engineer and hydrologist

regarding this incident.

After that I will filea complaint against Mr.

Daniels

for not properly checking the data on whichhe based his testimony.

The EPA tells me that they only

check the output of

the computer programs,

not the inputs so if trash is put in the computer as in this

case, trash

comes out.

MR VOL1NI WASTED

THE

TIME OF THE POLLUTION CONTROL BOARD AND THE

REST OF US

BY NOT OBTAiNiNG PEMISSION TO BUILD iN

A FLOOD PLAIN FROM THE

---

4

ILLINOIS DNR BEFORE SUBMITTING HIS APPLICATION TO THE

CITY OF

KANKAKEE

The same arguments and liability apply here as were stated on the section on the

city.

Byron

Sandberg..

Enclosed:

1.

Letter

fmmDNR

2.

Page ofbrief.

---

Illinois

Department of

Natural Resources

Office of Water Resources

http://dn~siateiWs

One

Natural

Resources Way

Springfield,

Illinois

62702-1271

George

H.

Ryan,

Governor

•

Brent

Manning,

Director

June 18, 2002

SUBJECT:

Kankakee Regional

Landfill

Minnie

Creek

Floodway

Sections 24

& 25, T3ON,

R14W,

.2nd

P.M.

Kankakee County

Town &

Country Utilities,

Inc.

3990 Garfield Street

Gary, indiana

46408

ATTENTION:

Mr. Thomas Volini

Dear Mr. Volini:

It was recently brought to our attention that

fill material is proposed

to be

placed

within the

vicinity of Minnie Creek and its tributary for the construction

ofthe

Kankakee.Regional

Landfill.

It

is our understanding that the Town & Country

Utilities,

Inc. are the developers for this project.

The

Illinois

Department of Natural Resources, Office of Water Resources

exercises jurisdiction over construction

in the floodway of streams with

a drainage

area of greater than

10

square miles

in a rural area or I

square mile

in

an urban

area, whetheror not the stream has been

inclUded in the typical mappin~

from the

Federal Emergency Management Agency (FEMA).

The

floodway is the portion of

the floodplain that must remain open and unobstructed

in order to store and

~onveyflood flows.

Based upon the plans available

to us, the project does include

work within the floodway and

çriusLrec&v~

~

p~rmitfrorn

this~gfficepr~or

to th~

inj~j~tio.~-of

~ogs~yctior~

Enclosed foryour use is a copy of our Part 3700 Rules

entitled “Construction

in

Floodways of Rivers,

Lakes ~nd Streams” and

an

application for permit form.

P~asesubmil Information

prD~1n~s

ecific

details of

th~pr~pos~d

~

n~eet

the aj~p~..c~Je

~tand.ards qfth~Pa.rt

3700 Rule&_

If you have any questions regarding this

information, please feel free

to contact

me at 217/782-3863.

Sincerely,

Robert C.

Giesing,

P.E.

Regional Water Resource

Engineer

RCG:crw

Enclosures

cc:

City of Kankakee, City Planner (Dave Sch~

Envirogen,

lnQ.

bcc:

Mr.

Lawrence O’Connor

---

of

water displaced by the landfill will raise theflood level and enlarge the area flooded

Mr Milk

estimated it would raise the water level

at least half a foot. Mr Milk is used to estimating from elevation

lines

because he did

that

in order to submit bids in the many years he was an excavating contractor.

5...

Mr Moose answered my

question about flooding by stating the banks o

Minnie Creek

protected the landfill from flooding and that he did not plan any other levee or protection to protect the

landfill.

The ditch embankments are referred to as dredge spoils on page 6,Appendix P.6 -of the

application. A statement from two

members of the Minnie Creek Drainage District attached to my brief

of the hearing for the City Council stated that the spoil banks beside Minnie

Creek have not prevented

flooding in the past and

that they were not intended for that purpose. They are only the dirt from work

on Minnie Creek. Mr Milk in a statement also attached to my brief for the City Council stated he has

been an earthmoving contractor most of his

life which included building embankments. He said the

ditch

banks were only the dirtremoved in constructing the ditch, that they

are not built to

any particular

specification, have not protected from flooding in the past and will not in the future. He also stated he

had built

a levee above the ditch banks on his farm that protected his

farm

only from flooding during the

lessor floods.

The ditch embankments arereferred to as dredge spoils on page 6, Appendix P.6 of the

application.

Mr Moose first testified in reply to my questions that the banks ofMinnie Creek would prevent

flooding, Later

Mr Moose entered into the record

“that the landfill unit itself and all-its principal

support componets to the landfill

gas collection system,

leachate storage and so forth are all going

to be

in post -construction which~is

going to be something we are going to have to make sure we are

clear about.

After the facility is developed they are going to be above the 628 elevation and be

protected from

the overflowing Minnie Creek” (page 80 Volume

5-A

6/28/03

#1499 of the transcript)

This

statement does not establish how the landfill is to be protected in pre -construction. This

landfill will

be in pre-construction for 20 years or so if one cell is opened every year. These cells wlli be open for a

considerable time while the base of the landfill is constructed

and

until enough trash is dumped to bring

them above ground. Fill does nOt describe a material necessarily suitable forprotectionof flooding.

Water moves

freely though sand of which there is

an abundance -at the site. This unusual procedure of

setting a landfill

down in dolomite rock means the dirt has

to be stockpiled and moved rather than

starting from a suitable clay base. I question

if there is enough clay at the site for the place~

that require

clay including a flood protection barrier. I also question ifthe construction contractor can sort out and

place clay in all the locations that require clay. The filling to the 628 level from the

625-626

level in

a

flood way is expressly forbidden in Part 3700 of the Illinois Administrative Code. The code forbids

filling in

a floodway of more than 0.1 foot. Mr Volini was told

to submit specifications of his work

in a

letter dated June 18th 2002 from the Illinois Department of Natural Resources (DNR). A copy of this

letter is enclosed. The letter reads

in part that the

“Office of Water Resources

exercises jurisdiction

over

construction in the floodway of streams

with a drainage area of more than

10 miles or 1 square mile

in

an urban area”

It states

“based upon the plans available to us, the project does include work within

the floodway and must

receive a permit from this office prior to the initiation of construction.

Enclosed

for your use in

a

copy of our Part 3700 rules entitled

“Construction in Floodways of Rivers, Lakes and

Stream” and an application form.

Please submit information providing specific details

of the proposed

work and an analysis demonstrating that yourproposed project will meet the applicable standards of

the Part 3700 Rules. The letter states that DNR has jurisdiction over this filling irregardless if it is on the

FEMA mapor not.

.

Since Mr Volini does not have a permit to fill and build here, he would not be

permitted to begin work on the landfill.

“Flood way” is defined in Part 3700

as: “The channel of a river, lake or stream and that portion of the

~~nt

1~~nr1

~

th~fi.~

ne~d~A

tc-~

c~f~’lv

sfflrA

2nd

c’r~nv~v

flni-v-1

w2t~r.c

Wh~rnflnnci

w~v~

h2v~

h~~p.n

delineated regulatory purposes, the mapped lines

ShOW

the floodway encroachment limits and will be

used. For other areas, flood way limits

will be estimated, using hydrological and hydraulic calculations,

to preserve adequate conveyance and

storage so that stage increases for the 100-year frequency flood

would not exceed 0.1 foot”

Mr Milk estimated that the flood stage was

increased more than

0.5

feet in