RECEIVED

CLERK’S OFFICE

FEB

-4

2004

BEFORE

THE ILLINOIS POLLUTION

CONTROL BOAR~TA~l-E

OF ILLINOIS

_________~P~llutionConti~o1Board

UNflED

DISPOSAL

OF BRADLEY,

INC.,

and

M

~JNICIPALTRUST

&

SAVINGS

BANK, as Trustee Under Trust 0799,

Petitioners,

No.

PCB 03-235

V.

(Permit Appeal

-

Land)

ILLINOIS ENV!RONMFNTAL

PROTECTiON AGENCY,

Respondent.

NOTICE

OF FILING

To:

Please see

attached

Seriice

List

PLEASE

TAKE NOTICE

that

on February

4,

2004,

we

filed with the

Illinois

Pollution

Control

Board,

(1)

PETITIONERS

UNITED

DISPOSAL

OF

BRADLEY,

!NC.

AND

MUNICIPAL

TRUST

&

SAVINGS

BANK’S

MOTION

FOR

LEAVE

TO

FILE

RESPONSE

and

(2)

PETITIONERS

UNITED

DISPOSAL

OF

BRADLEY,

INC.

AN!)

MUNICIPAL

TRUST

&

SAVINGS BANK’S RESPONSE

TO

RESPONDENT

ILLINOLS

ENV~

RONMENTAL

PROTECTION

AGENCY’S

MOTION

FOR

SUMMARY

JUDOMENT, copies of which are attached hereto and served upon you.

Daied: Fehruari 4, 2004

Respectfully submitted,

UNITED DISPOSAL OF BRADLEY, INC.,

and

MtJNICIPAL TRUST &

SAVINGS

BANK, ~ts

Trustee Under Trust

0799

Jennifer J.

Sacketi Poh!enz

~

O~TPPEY&HAPROW

LI

D

By

LQ~t

1

75

W. Jackson Blvd., Suite

1600

One o~

their attorneys

Chicago, Illinois

60604

Phone:

31 2-540.~7000

OF

F SERVICE

I, Ronnie Faith,*

a

non-attorney, certify

that I served the following documents on the above

referenced persons,

by hand delivery or

by d.epos~tinga copy in

the U.S.

mail at

175 W.

Jackson,

Chicago,

JJ.linois

(with

proper

postage prepaid

and

addressed

to

the

address sho~~

above), at or

prior to the hour of5:00 p.m. on

February 4, 2003, as referenced above.

*IJlider pena~ies

as

provided

by

law pursuant to

Ill.

Rev,

Stat.

Chap.l

O-~

~-1O9

I

certi~’

that the statements set

forth

herein

are

true

and

correct.

Printed on Recycled Paper

---

SERVICE

LIST

Dorothy M. Gunn, Clerk

Illinois

Pollution Control Board

James R. Thomspon Center

100 West Randolph

Suite 11-500

Chicago, IL 60601

Via Hand Delivery

9 COPIES WITH ORIGINAL

John J. Kim

Assistant Counsel

Special

Asst. Attorney Get~eral

Division ofLegal

Counsel

1021

North Grand Avenue, East

P.O. Box

19276

Springfield,

IL 62794-9276

V/a US.

Mail

with Exhibits’

Vi~

Facsimile

w/out Exhibits

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue, East

P.O.

Box

19274

Springfield,

IL 62794-9274

Via

U.S.

Mail

with Exhibits

Joel J. Sternstein

Assistant Attorney General

Environmental Bureau

188

W. Randolph St.,

20th

Floor

Chicago, Illinois 60601

Via U.S.

Mail with Exhibits

---

RECEIVED

CLERK’S OFFICE

FEB

-

42004

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

STATE

OF ILLINOIS

Pollution Control Board

UNITED DISPOSAL OF BRADLEY, INC.,

and MUNICIPAL TRUST

& SAVINGS BANK,

as Trustee Under Trust 0799

No.

PCB 03-23 5

Petitioners,

(Permit Appeal

-

Land)

V.

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

PETIT!ONERS

UNITED

DISPOSAL OF BRADLEY, INC’S.

ANO

MUNIC1IPAL

TRUST & SAVINGS BANK’S

MOTION

FOR

LEAVE TO

FILE RESPONSE TO

RESPONDENT

.114L1N015

ENV~RONMENTAL

PROTECTION AGENCY’S

MOTION FOR SUMMARY

JUDGMENT

Petitioners

UNITED

DISPOSAL

OF

BRADLEY,

INC.

and

MUNICIPAL

TRUST

&

SAViNGS

BANK,

as

Trustee

Under

Trust

0799,

by

and

through

their

attorneys, Jcnnil~rJ.

Sacke~t

Pohlenz

and

David

F. Neumeister of QLJERREY

& HARROW,

Ltd., moves the

Illinois

Pollution

Control

Board

and

the

Hearing

Officer

for

leave

to

file

Petitioners’

Response

in

opposrt~onto

Respondent

Illinois

Environmental

Protection

Agency’s

(IEPA)

Motion

thi~

Summary Judgment on February

4,

2004, rather than

February 3, 2004.

No prejudice will result

from this one-day extension and Petitioners have

no objection to extending

the date by which the

parties are to file their reply briefs

one day to accommodate this

filing.

Petitioners’

counsel who

drafted the Response

is

at home on maternity leave

and,

despite her best

efforts,

was unable

to

get the Response to her office electronically on

February

3rd

in tirrce

to get to the Board fbr filing

before it closed.

This

Motion

and

the

Response

were

faxed

to

Respondent’s

counsel with

the

Illinois Environmental Protection Agency prior to noon

on the February

4th~

Ptlnted on Recycled Paper

---

WHEREFORE,

Petitioner,

United

Disposal

of Bradley,

Jnc.

and

Municipal

Trust

&

Savings

Bank

as

Trustee

Under

Trust

0799,

respectfully

request

the

Board

and/or

Hearing

Officer

enter

an

order

allowing

them

leave

to

file

their Response

on

February

4.

2004,

and

amending

the briefing schedule to

add one day to the time for reply briefs.

Dated: February 4, 2004

Jennifer J. Sackett Pohlenz

David E. Neumeister

Querrey &

Harrow,

LTD.

175 W. Jackson Blvd..

Suite

1600

Chicago, Illinois

60604

Phone:

(312) 540-7000

Fax: (312) 540-0578

Respectftully submitted,

UNITED DISPOSAL OF BRADLEY, INC. and

MUNICIPAL TRUST

&

SAVINGS BANK, AS

TRUSTEE UNDER TRUST 0799

2

Printed on Recycled Paper

attorneys

---

RECEIVED

BEFORE THE ILLINOiS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

UNITED DISPOSAL OF BRADLEY, INC.,

FEB

-

42004

and MUNICIPAL TRUST &

SAViNGS BANK,

STATE OF

ILLINOIS

as Trustee Under Trust 0799

No.

PCB 03-235

Pollution Control

Board

Petitioners,

(Permit Appeal

-

Land)

V.

ILLiNOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

PETITIONERS

UNITED DISPOSAL OF BRADLEY~INC’S.

AND MUNICIPAL TRUST

& SAVINGS BANK’S

RESPONSE

TO RESPONDENT

ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY’S

MOTION

FOR

SUMMARY JUDGMENT

Petitioners

UNITED

DlSPOSAL

OF

BRADLEY,

INC.

and

MUNICIPAL

TRUST

&

SAViNGS

BANK,

a~

Trustee

Under

Trust

0799,

by

and

through

their u~torneys,Jennifer

J.

Sackett

Pohlenz

and

David

E.

Neumeister

of

QUERREY

&

HARROW,

Ltd.,

submit

the

t~oilowingResponse

in

opposition

to

Respondent

Illinois

Environmental

Protection

Agency’s

(IEPA) Motion for Summary Judgment.

INTRODUCTION

This

Petition

concerns

the IEPA’s

error

failing

to

allow

the Petitioners

to

modi~’their

permit by

removing an

unlawful

condition.

Specifically,

IEPA

is

wrona

in finding Petitioners’

application to

modil~’an

existing operating permit for a transfer station which has operated

over

the past nine years to be incomplete.

Both the Petitioners and Respondent

LEPA have moved for

summary judgment.

based

on

seemingly

separate theories.

Thus,

this

case

can be

decided

as

~i

Printed

on

Recycled

Paper

---

matter of law, based on their respective arguments.

However, the crux ofboth ofthemotions~is

the undisputed fact that the law on which the permit condition at issue

is based is no longer valid,

having

been declared

unconstitutional.

The

offending

portions

of the

Illinois

Environmental

Protection

Act

(Act) were

removed by the

Illinois

State

Legislature in an

amendment that

took

c~’fect

after Petitioners’ transfer station development and operating permits were issued.

This

Response

opposes

Respondent

IEPA’s

motion

for

~umnmryjudgment,

in

which

IEPA

argues

that

its

notice

of

incompleteness

was

correct

because:

Petitioners’

requested

operating

permit

modification was

actually

a development permit

application

that seeks

a “new

pollution

control

facility”

that

was

not

“grandfathered”

out

of

Section

39.2

of the

Illinois

Environmental

Protection

Act

(Act);

and,

in

the

alternative,

the

Petitioners’

proposed

modification

to their operating permit

“may he” inteipreted

to

be an

“expansion” under

Section

3.330(b)(2)

of the Act.

The IEPA is wrong in both cases.

First,

the IEPA’s

arguments

ignore the

importance of the statute

on

which

the condition

was

based

having

been

found

unconstitutional

and

stricken

by

the

Illinois

Stoic

Legislature.

Since

there

is

no

longer

an

existing

law

which

supports

the

imposition

of a

geographical

restriction on the Petitioners’

business,

there

is no

legal

basis for IEPA to uphold

and ostensibly

require continued performance of that

condition,

The continued

presence of this void

condition

constitutes

an

unlawful

application

of the

Act.

Certainly,

its

removal

will

not

constitute

a

violation of the Act.

Thus, the request to remove the

condition

must

be

granted.

Second, JEPA’s

contention that what was clearly on its face a request for modification of

an

operating

permit,

can

somehow

he

transformed

in

IEPA’s

discretion

to

a

request

for

In

addition

to

the

constitutional

argument,

the

Petitioners’

Motion

for

Summary

Judgment

submits

that

procedurally

Petitioners’

permit

application

was

incorrectly

determined

to

be

“incomplete”

by

JEPA,

as

1EPA

2

Printed

on Recycled Paper

---

modification of a

development

permit

is

unsupported

by

any

law or policy.

Further,

IEP.A’s

attempt to

shoehorn the subject permit application

into an

already

strained, legal

argument

that

Petitioners’

application to

modify their transfer station operating requires siting, after the fact, of

a

~ciiity

which

has been permitted

and

operating

for over nine yems,. is

simply inappropriate.

There

is

simply no

precedent, analogy or legal

basis for arguing

that the

Petitioners’

application

to

remove an

unconstitutional

geographical restriction

on

its

business

from’ its

permit

somehow

results in Petitioners seeking an “initial” permit.

Third, IEPA’s ôontention that Petitioners’

permit modification “may” be an expansion of

the

transfer

station,

triggering

Section

3.330(bX2)

of

the

Act,

is

an

argument

not

only

unsupported

by

the

case

law

on

this

issue,

but

also

a contention that

directly

conflicts

and

is

inconsistent with past Agency action.

Thus,

for the

reasons

outlined

above

and

presented

in

more

detail

below,

the

IF PA’s

Motion for Summary Judgment should

be denied.

as IEPA ShOuld have approved the

Petitioners’

application

for modification of its operating permit.

FACTS

The

single

tact

most

important

to

the

Hhinois~Pollution

Control

Board’s

(Board)

deterrnjnation

is

that

the

Petitioners

simply

seek

to’ remove an

unconstitutional

condition

from

their operating

permit.

The

Petitioners

obtained from

JEPA

their development and

operational

permits

for

a

“non-regional”

waste

transfer

station,

prior

to

the

effectiv~date

of the

I1linoir~

General

Assembly’s

amendment

to

delete,

on

the

basis

they

were

unconstitutional,

the

terms

“non-regional”

and

“regional”

from

the

Act.

By

amending

the

Act

to

remove

the

terms

“regional”

and

“non-regional,”

the

General

Assembly

did

away

with

the

prior

distinction

missed

the

regulatory

time

frame

for

making

such

declar~ionand,

thus,

pursuant

to

the

35

IAC

807.205,

Printed on Reci&d Paper

---

between

“regioI~ai:’and

“non-regional”

facilities.

The

question

becomes

whether

removing

language

in

a permit that geographically restricts the movement of waste

(which

is an

article of

commerce) and,

thus,

is

an

unconstitutional

restHction

on

commerce,•can be

denied

by

JEPA

I

without any basis

in

existing

law and without’ any demonstration by JEPA

that a violation of the

I

Act would occurshould the permit application be:granted.

i

The

Petitioners

received a

permit

(No.

1994-306-DE)

to

develop

the subject facility, a

1

waste

transfer station,

in

the Village of Bradley~Kankakee County,

Illinois

on

September

21,

1994.

(AR2

1-7).

That permit

specifically

approved

development

of a

municipal

solid

waste

transfer

station

pursuant

to

Sections

2 1(d) and39(a) of the

Act

and

35

Illinois

Adminstrativc

Code,

Subtitle G

807.201

and

807.207.

Id.

The IEPA received the

application for an operational

I

permit for the facility on December

5,

1994, and JEPA

granted

an

operational permit (No.

1994-

306-OP)

on

January

19,

1995.

(Exhibit

1;

AR

67-73).

The operational

permit

approved

the

operation ‘~f

a

municipal

so1id waste

transfer st~o’purcuant to

Sections

21(a)

and

~9t~i

o~

~

H

Act and

35 Illinois Administrative Code,

Subtitle G ~07.201. 807.202 and 807.207.

Id.

Since the transfer station received

its

operational permit,

it has operated successfully ~nd

with

the

support

of

the

Village

of

Brad1ey~

(A.R

133-135).

Further,

the

subject

permit

L

modification

also

is

supported

by

the neighb~ringcommunities,

namely

the Ci~of Kar~akce

and the Village ofBourbonnais

(SAR3

140-142)...

Resoondent

IEPA

makes

certain

assertions

in

its

Response

which

are

not

aeeurate~

statements

of fact.

For example,

JEPA

asserts that

Petitioners

seek to

“strike

special

condition.

Respondents’ permit application should

be deemed

by the Illinois Pollution Control Board

(Board) to be complete.

2

“AR”

means

the

Administrative

Record,

w’hich

was

filed

by

the

Respondent

on

or

about

August

13,

2003,

and

which

Petitioners’

understand will be supplemented

by Respondent shortly after

this filing to include

documentation

referenced

in Paragraph

12,

below.

~“SAR” references

the

Supplemental

Administrative Record filed by the Respondent

IEPA on

or about December 3,

2003.

4

Prhzted

on

Recycled Paper

---

no.

9”

from

the permit; however,

that

is not

entirely accurate, as Petitioners

only

seek

to

strike

the

portion

ofthe language ofthat condition that provides:

“9.

No waste generated outside the municipal boundaries ofthe

Village ofBradley may be accepted at this facility...”

(See

Exhibit

1;AR69).

The remaining portion of special condjtion no; 9, ~ncerning

special Waste, the Petitioners do not

seek to

change, which fact is clear from the face ofthe ~ubjectoperating permit

application (AR

129..139).

Additionally,

IEPA references that Petitiorfers did

ndt appeal

the

imposition ofthe permit

condition,

which

they now seek to

have

removed, at the

time

it was

imposed.

However, this

is

not relevant, as constitutional

issues cannot be waived.

Further, the IEPAcontends that the Petitioners’ March 27, 2003, application to

modify its

operating

permit

is,

instead,

an

application for a

development permit

modification~despite

the

clear,

concise

and consistent

identification

on

the

application

itself as an

application

to

modify

the

facility’s

operating

permit.

There

is

no

basis

in

the record

for this

assertion

b’i

the

UiPA,

whether asserted

in

fact or

law.

Not

only

does the permit

application

itself state that

it

is

an

application to

modify

an operating permit,

but 1EPA’~response to the permit application

and

its

log

file identi~’the

application as

one

to modi~’an

operathig

permit.

(See,

JEPA

response to

:

permit

application

AR

98-99

and

SAR

143-144,

arid

example of log

file, AR

100).

Therefore

this is not a “fact” asserted by JEPA that

is supported in the record on appeal.

Finally,

IEPA

downplays the

issue

concerning

the

unconstitutionality

of the

Jaw

v~/hic1t

distinguished between regional and non-regional.

As such, IEPA omits

mention ofthe following

facts

which

are

essential

to

this

appeal

and

determination

on

both

the

Petitioners’

and

the

Respondent’s separate

motions for summary judgment.

Waste is

an

article of commerce subject

5

Printed

on

Recycled Paper

---

to

the strict scratiny ofthe Commerce Clause ofthe U.S. Constitution.

Additionally, that portion

of Special

Condition No.

9

stating that “No waste generated outside the municipal boundaries of

the

Village of Bradley may be

accepted at

this

facility”

is

a

geographical prohibition

on

waste

acceptance or a restriction

on waste acceptance based on origin ofwaste.

ARGUMENT

...

.

-.

IEPA’s

arguments

in

support

of its

finding

Petitioners’

permit

application

incomplete,

ignore

the

constitutional

infirmity

present

in

this

case,

and

presents

statutory

construction

arguments which

are contrary

to

precedent

and,

if

accepted, would

constitute

an

inappropriate

-

retroactive application of the law.

Further, IEPA’s statutory construction arguments,

i.e.,

tha.t

the

Petitioners’

permit

application

to

modify their

operating

permit

requires

site

location

approval

through

application

of Sections

3.330(b)(l)

and

(2),

must

fail,

as

they

are

not

supported

by

precedent, the

facts ofthis case, or the actual language ofthe Sections of the Act relied on by the

Agency.

I.

IEPA’S

MOTION

FOR

SUMMARY

JUI)GMENT SHOULD BE DENE~D,AS IT

FAILS TO

ADDRESS

THE

CONSTfFUTION

INFIRMITY

IN

THIS

CASE

AND

JTS

DUTY

TO

hAVE

GRANTED

PETITIONERS’

PERMIT

APPLICATION

,

.

,

AND

REMOVED

AN

UNONSTITUTIONAL

RESTRiCTION

FROM

THE

PERMIT

.

.

.

.

The

statutes,

under

which

JEPA

imposed -Special

Condition No.

9, purporting

to

restrict

the

geographic boundary

in

which

the Petitioners~facility can conduct

business, were

fouud to

be

unconstitutional in

I~n~

in~x~Gade.

The Illinois State Legislature, then amended the Act

by

deleting

the

unconstitutional

language

and

removing

the

concept

of “regional”

and

“aon-

regional”

facilities.

This

amendment

was

effective

after, the

date

of

the

issuance

of

the.

.

Petitioners’

pennits.

JEPA misstates

or misunderstands the relevance of the decision in Tennsv,

Inc.

v.

Gade,

when it

states:

“there

is

nothing

unconstitutional

about

a

pennit

that

limits

the

6

Printed

on

Recycled Paper

---

service

area

of

the

facility.

What

was

deemed

unconstitutional

was

the

State

using

the

distinction

of a

service

area

to

not

require

some

types. of

facilities

to

undergo

local

siting

approval.”

(IEPA Motion p.

.17).

This staten~e~it

by the JEPA is simply not correct.

The holding of unconstitutionality in

J

~

_v.G~de

is based

on the Commerce

Clause,

and. the prohibition on regional or

jun

Wetional restrictions on the

purchase arid sale of

commodities, of which municipal solid waste h~

one.

In Tennsv1 Inc. v~Gade,’the court found

that the

JEPA “offered no proof that municipal ~.oti~d

waste generated outside the boundaries of

any local general purpose unit of government poses any different health risks to the public

than

municipal

solid

waste generated locally” and, aisent

such proof,

that there. existed rio valid

factor

to justify the discriminatory effect ofthe statutory scheme at issue,

Tcnnsv,

Inc.

v.Gad~J

993

~S.

Dist.

LEXIS

10403

(U.S.

Disi.

*

1993)

se:

also,

Fort Graliot Landfill v.

M chig~irt_DepLof

Natural Resources, 504U.S. 353,

112 S.Ct. 2019

(‘1992).

Similarly,

other

courts

have

found

geographical

restrictions

discriminating

based

on

origin of waste

or like

material

to

violate

the

Co~nrnerceClause,

See,

e.g...

~c~~jit~r,y

Landfill. Inc~~Lv.South

Carolina

I2cp~rtivientof Health and EnvLronmerital

Control~

et aL,

843

F.

Supp.

100

(D.

SC

1992)(geographicai ~strictions

discriminating

based

on ‘the

origin of

waste

violates

the U.S.

Commerce

Clause)

and EcQ~pgicalSystems,

inC.

v.

Jh~cJ~yt~.

2002 Ohio

388,

2002

Ohio App. LEXIS

354

(OH

2~’

Dist.

1992),

apv.

denied,

2002

Ohio 2852.

769 N.E.2d

873 (2002)(geographical restriction

on wastewater violates

U.S. Commerce Clause).

Given both the unconstitutionality of

the law

on which the sul~ject

permit condition was

based, and the discriminatory effect of such condition on origin ofwaste (a commodity), the

permit condition should either have been removed by

IEPA

as a ministerial matter, as it is1eg~u11y

—r

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null andvoid4, or, alternatively, the

permit application

should have been granted as the condition

at issue’is unconstitutional and unlawful,

thus, its removal does ‘not result in aviolation

of the

Act.

.

Rather, its continued existence unlawfully perpetuates an unconstitutional restriction.

Instead, the IEPA apparently takes the position that after having been permitted and

operating in

excess of nine years, site location approval is now suddenly necessary for I etitione:cs to accept

waste generated outside the

“municipal boundaries” ofthe Village of Bradley,

IEPA’s position

is incorrect, as the permit condition at issue

is. null and void as’hased’ on an unconstitutional

statute and

is itself unconstitutional and should be stricken.

Therefore,~1EPA”s

Motion fbr

Summary Judgment should be denied, and Petitioners’ Motion for Suininary. Judgment should be

granted.

.

..

.

,

,

H.

IEPA’S

MOTION’

FOR

SUMMARY

JUDGMENT

SHOULD

BE

DENEID,

AS

PETITIONERS’ APPLICATION

WAS CLEARLY A REQUEST TO

MODIFY AN

OPERATING

PERMIT

AND,

EVEN

IF,

IN

ARGUENDO,

IT

WAS

AN

APPLICATION

TO

MODIFY

ITS

DEVELOPMENT

I(~TI’~’

(~f~~Ø

PETITIONERS’ DENY) NO

SITE

LOCATION APPOVAL

IS

REQUIRE!)

IEPA makes two arguments to support

its incorrect finding

that Petitioners’, application to

modif~’their

operating

permit

was

incomplete

and

requires

site

location

approval:

that

the

application

triggers site

location approval under Section

3.330(b)(l)

as it

is a “pollution control

facil.ity initially permitted for development or construction after July

1

,

1 981”;

and, alternatively,

that

it triggers

Section

3.330(h)(2) ~s

it

is

an

“expansion

beyond

the

boundary cf

a

currently

permitted pollution control facility.”

Even without consideration ofthe unconstitutionality of the

subject permit condition, these arguments must ihil for three reasons.

(A) The penmit application

~An

unconstitutional

state

enactment

is

void,

and

any

action

taken

by

a

state

official

that

is

authorized

by

that

enactment

cannot

be taken

in

an official capacity, since the

state authorization for such action is

a nullity. ~pasan

v.

All~in,

478

U.S.

265,

276,

92

L.Ed.2d

209,

106

S.CI.

2932, 2939

(1986)

(citing ~

rtc_XQun~,

209

U.S.

123

(1908)).

8

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Paper

---

at issue

was for modification of an operating

permit and,

even

if, /n

arguendo,

for modification

of

a development permit,

Section 3.330(b)(l) does

not apply, as the

facility

is

already

“initially”

permitted.

(B) The

permit

does riot

seek

an

“expansion beyond

the boundary”

ofthe currently

permitted facility, consistent

with

the well-established precedent

applying

that

section and

tlie

Agency’s own previous

applications of that

section. Thus,

Section

3~33O(b)(2)does not

apply.

Finally, (C), IEPA’s attempt

to force this facility through site location approval, if deteimined by

the Board

to

he

supported

by

the existing

law,

rcsults

in

an

improper retroactive

application of

the

law.

A.

JEPA

is

incorrect

that

Section

3.330(b)(I)

requires

site

location

approval

prior to the removal of

that

portion of Special Condition

No.

9

purporting to

~

of waste th~abeacce~tedattl~efa~t’

Section

3.330(b)(l)

provides

that

a “new pollution

control facility is

a

pollution

control

facility initially permitted for development or construction after July

1,

1981

.“

This

Section

is

relevant

to

IEPA’s

rather

convoluted

argument,

as

IEPA

found

the

subject

operating

permit

application incomplete, based

on

the requirement

in Section 39(c) of the Act

which requires

that

“no

permit for the

development or construction

of

a

new

pollutioii

controlfacility

may he

granted by the Agency unless

the applicant submits proof to

the Agency

that the location of the

facility abs

been

approved.

.inaccoTdance

with

Section

39.2

of this

Act.”

(415

1LCS

39(c))

(emphasis

added).

Section

39.2

sets

forth

the

criteria (and

other procedure)

that

an

applicant

must meet to obtain site location approval from

the local government

in which its

proposed new

pollution control facility is located.

Although TEPA goes to some

length in its Motion to

state that

it is not arguing that every

permit modification

after July

1,

1981

is an “initial permit,” in the end,

it wishes

to

convince the

Board

that

the

operating

permit

application

seeks

an

“initial”

development

permit,

for

the

9

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on

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---

Petitioners’

transfer:staiion even though

it has be;~n

fully permitted and

operating for over nine

years.

The argument must

fail as the Agency

~

no authority to

now revise Petitioners’ permit

application to he

a development permit applic~t~,

when it is clearly an application

to modif~’

an

operating

permit;

and,

even

if,

in

arguendo,

it

were

an

application

to

modify

its

development

permit, itis not an “initial” permit and Section

3.. 330(b)(1) does not apply.

The

JEPA,

as anadministrative

agency.

“possesses

only

that

authority

conferred upon

it.

.

.by

statute.” Pulitzer~~munity_N~~

nc..v,ilhinois

EPA,

PCI3

90—142

at

15

(12/20/90),

citing,

~jjj~ge

of Lomba~

V.

P(~.363

N.E~2d814

(1977).

Although

there

are

many legal

and

logical hurdles the Agency’s art~ment

must clear to

make sense, the first

is that

the Agency has to be able to

transform

the Petii~:nersapplication to

modify its

operating penn/I

p

to

one

that

seeks modification

of a developmcnt permit...

Without

being able

to

translbrm

the

Petitioners’

permit

application

from operating

1~

development, IEP,A’s

arguirient fails as Section

b

39(c) of the Act

requires

site

location approva~asrelevant

to

the Agency’s

argunient~.only

in

circumstances in circumstances where there

is

application for “development or construction of

a new pollution control facility”. (415 ILCS 39~&:~).

However, to

accomplish

this

“transfonn~iion~

in permits,

IEPA has to

show

that

it has

the

authority

to

essentially

relabel

an

applie~.tionto

best

suit

its

reasons

for.

denying

an

.

application.

There

is

no

law

or regulation

wi~ichprovides

that

IEPA.

can deem

~n operating

permit

application

to

be

a

development

perird~application.

The

application,

on

its

face,

is

perfectly clear and

consistent

that

it

is an ope~it2permit

application.

(AR

1 29-139),

~EPA’s

response, in

fact, states

in

its very first sentence. i~a~

h ~respon.dsto the application

for permit to

modify the operating

permit.

.

.“

(AR 98).

Firt~liy.even the IEPA permit

log appears

to

be

one

that

is

designed

for

operating

permit

applic:itions.

as

it

specifies

that

if

a

determination

of

10

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PQper

---

incompleteness

is

made

that the

denial, letter should

be

sent

by the

30th

day

(as required if the

‘application

is for an operating permit pursuant to 35

IAC

807.205),

whereas, development permit

applications are allowed

a

45-day

review by

the

JEPA

(AR

10.1).

Although JEPA

actually sent

its response, having missed the 30-day deadline, on The

45th

day, this failure of the Agency is not

evidence of its

claimed

ability to

“deem~’a permittapplication

transformed from operational

to

development.

Rather, that

timing

failure

is another,

procedural

reason,

why the

Board

should

find

that

the

Petitioners’

application

was

complete

and

should

have

been

granted by

IEPA.5.

Thus,

JEPA’s

argument

must

fail

on

this

ground

alone,

as

it

has

no

power to

transfbrm

an

operating permit application into a development permit application.

Additionally,

IEPA’s

argument

must

fail,

as,

even,

in

arguendo,

if

the

Petitioners’

application

was for modification of a development permit and

removal of the subject condition,

no site location approval

is required.

Section 39(a)of the Act

requires proofoflocal site location

approval only where the development permit application is for.a “new pollution control thciiity.”

The definitions of a “new pollution

control facility”

and a “pollution control

faciJity” ar~

fbund

in

Section

3.330

of the

Act.

Pursuant

to

Section

3.330(a),

a

“pollution control

facility”

is,

among other things,

a

waste

transfer

station.

Pursuant

to

Section

3.330(a)(1),

a waste

transfer

station

is a

“new

pollution

control

facility”

if it

was

“initially”

permitted for development after

July

1,

1981.

The

Agency

admits. that

“initially”

means,

permitted

fbr

the first

time.

(1EPA

Motion pp.

10-1 1).

The

Agency also

admits

that the

Petitioners’

waste

transfer

station

already

had

a

development

(and

operating)

permit

when

it

submitted

the

subject

operating

permit

modification.

(AR

1-7,

67-73).

Specifically,

the Petitioners

development permit,

Permit

No.

I

994-306-DE states

that it “approves

the development ofa municipal solid waste transfer station

~This

timing

argument is

based

on

35

1AC807.205

and

the argument

is set

forth

in Petitioners’

Motion for Summary

11

tl

Printed on Recycled Paper

---

pursuant

to

Sections

21(d)

and

39(a) of the

Illinois

Environmental

Protection

Act.

.

.“

(AR

l).

Thus, even

if

the subject permit application were for modification ofa development permit, since

it

is

not an “initial

permit,” proof of site location approval under

Section

39.2

of the Act

is

not

required by Sections 39(a) and 3.330(b)(1) ofthe Act.

,

Further,

the

Agency

incorrectly

contenci~thatthe

permit

application.. submitted

by

tile

Petitioners

is analogous

in

its’ alleged triggering of Section 3.330(b)(1), to

a facility which

seeks

to

accept hazardous waste

for the

first time.

Thh~

i.s clearly not an

accurate. analogy, as Section

3.330(b)(3) specifically provides that an already permitted pollution

control facility that seeks to

accept

hazardous

waste,

is

a

“new

pollution

control

facility.”

Additionally,

this

is

not

an

appropriate

comparison,

as the

subject permit

application

does not

seek

to

change

the

type

of

waste

managed

by

the transfer station~ Thus,

the

Agency’s correlation of the requested permit

modification to

a change in

type of waste facility is wholly misplaced.

Finally,

IEPA attempts

to

bootstrap

its

denial

on a rather unclear

exchange hetwe~tntwo

Senators,

Welch

and

Karpiel.

This

portion

of

IEPA’s

argument

is

irrelevant

to

the

actual

language

of Sections

39(c)

and

3.330(b)(1)

and

an

incorrect reliance of the

Agency

on., those

Sections, as described above.

Additionally,

this

is not

a circumstance where a facility is seeking

‘to

‘be

“grandfathered” into a statute.

Black’s

Law Dictionary defines

a

grandfather clause as

‘an

exception to

a restriction that allows all

those

already doing something to

continue doing

it even

if they would

be

stopped

by

the

new. restriction.”

(Black’s

Law

Dictionary

699

(6th ed.

1990).

There

is

nothing

about the amendments

to

the

Act,

deleting

the distinction

between “regions I”

and

“non-regional” pollution

control

facilities

that

can be

interpreted

as

a

~‘newrestriction” or

that can be

interpreted as “stopping” the Petitioners’

transfer

station from

operating,

Lastly,

to

Judgment, pages

17-19).

12

Fruited on

Recycled Paper

---

the

extent

any

of the

exchange

between’ Senators

Karpie!

and

Welch

is

clear,

it relates

to

a

different

paragraph

in

Section

39(c)

than

is

relevant

here,

as

obvious

by

Senator

Welch’s

reference

to

the

change

in

the

applicable

date

in

that

section

from

1993

to

January

1,

1994.

Specifically, the paragraph being referenced provides;

After

January

1,

1994,

if

a

solid

waste

disposal

facility~any

portion

of

which

an

operating

permit

ails

been

issued

by

the

Agency,

has

not

accepted

waste

disposal

for

5

or

more

consecutive

calendar

years,

before

that

facility may

accept

any

new or additional waste for disposal, the owner and

operator must

obtain a new operating permit under this Act.

.

.

The Agency may

not

issue

a new operating

permit

under

this

Act

for the

facility

unless

the applicant

has submitted

proo’f to

the Agency

that

tile

location of the facility abs been

approved

or re-approved

by

the

Lt

appropriate

county

board

or

municipal

governing

body

under

Section 39.2 ofthis

Act after the facility ceased accepting waste.

Thus,

IEPA’s

argument

concerning

grandfathering

is

not

applicable

and’

not

relevant

to

the

subject

permit

modification

request,

as

the

Petitioners’

transfer

station

is

not

a

“solid

waste

disposal

facility” and it did not cease Waste acceptance as described in the above

section.

Therefore,

IEPA’s Motion

for Summary Judgment should be denied,’as the Agency e~ed

when it

found

the

Petitioners’

operating

permit

modification

request to

be

incomplete,

and

the

Petitioners’ Motion for Summary Judgment should be granted.

‘

B.

IEPA

is

incorrect

That

Section

‘3.330(b)(2)

requires

site

location

approval

prior to the

removal of that portion of Special Condition No.

9 purporting to

~

thatm~bea~e~t’thefacili~

JEPA

argues

that

Section

3.330(b)(2),

“rriay”

apply

to

the

Petitioners’

application

to

modify its

operational permit.

Initially, the same leap in IEPA’s argument giving

it the authoily

to

“deem”

the

Petitioners’

application

for

modification

o’f its

operational

permit

to

be

an

application to modify its development permit is necessary to present this argument.

Like Section

3.330(b)(l),

Section

3,330(b)(2)

is

triggered

by

Section

39(c)

which

requires

an

applicant

to

Printed

on

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---

present proofto IEPA of Section

39.2 site location approval, when submitting an application for

a

development permit

for

a

new pollution

control

facility.

(415

ILCS

5/39(c)).

In

the

first

instance,

since

the

subject application

was

for ‘modification

of an

operating

permit,

Sections

39(c)

and

3.330(b~(2)

are

not

applicable.

Furthçr,

the

.Agency

has no

authority

to

“deem” the

fT

Petitioners’

permit application tohe

something other than what it is:

an application to

modify an

existing operating permit to remove an unconstitutional condition.

Finally, not

only is there no legal

precedent for IEP.A’s argument that Section

3.330(b)(2)

I

applies, the argument

IEPA

makes opposes

its

own prior

actions.

Section

3.330(b)(2) provides

that

a

“new

pollution

control

facility”

is

“the

area

of expansion

beyond

the

boundary

of

a

currently

permitted pollution

control facility.”

There are

a

number of cases

in

which

the Board

fT

and

Courts

have

considered

and

ruled

on

the

meaning

of “the

area of expansion

beyond the

r

boundary.”

As

a

backdrop

to

those

cases,

however,

the courts

have

interpreted

Sections

39.2

and

39(c)

requiring

site

location

approval,

as

provisions

that

“protects

the

public

interest

~n

fT

having

sign~ca1itchanges

in

land

use

subject

to

sc~tinyby

its

elected

representaLives~”

fT

Browning-Ferris

Industries,

Inc.

v.

Illinoi

Pollution

Control

Board,

etaL,

127

Ill.App.3d

509,

468 N.E.2d

1016,

1018-1019 (3~’

Dist.

l984)(emnphasis added).

L

The

emphasis

on

“significant

changes

in

land

use”

becomes

more

apparent

with

the

development of the

cases

applying

Section

3.330(b)(2),

in

which

the

Board

and

Courts

have

consistently

held

that

Section

39.2

siting

is

required and

a

facility

is

a

“new

pollution

control

facility”

pursuant to

Section

3.330(b)(2),when

the

“area of expansion beyond

the

boundary”

s

both

an increase

in waste capacity

and

an increase in permitted physical dimensions.

Concei-ried

Neighbors for a Better Environment,

et aL

v.cpunty

Qf

Rock Island,

eLat,

PCB 85-124 (January

9,

1 986)(applicant

sought

siting

approval

of

a

“new”

regional

pollution

control

facility,

14

Printed on Recycled Paper

---

‘notwithstanding the fact that it already operated

~ facility on the same site. “This occurs because

the

Board

has

construed

§

3(x) of the

Iliinoi~Environmental

Protection

i\ct

(“Act”),

which

r

defines

a new regional

pollution

control

facility, ‘as

applying

to

increases

the waste

disposal

capacity of a site

in

any direction beyond

the dimensions

contemplated by the current permit.”);

r

MIG Inve~tment~~Jnc.,

et

aL

v.

The Environn

~

122

Ill.

2d

392,

r

‘

523

N.E.2d

I

(S.Ct.

1988)(a vertical expansion of a

landfill, increasing

amount of waste

in the

site

and

the physical dimensions of the site,

is

~fl

“area of expansion beyond

the boundary of a

currently

permitted

pollution

control

facility~);’j~j-StateDisposal

v.

Th~Environmental

Protection

Agency,

ci

al.,

203

111.

App.

3d

1023;

561

N.E.2d

423

(5tI~

Dist.

1990)(Court

held

siting required because application

increased lar~d~iil

footprint and

capacity,

as applicant sought

L

to landfill a minecut which bisected a previously perriiitted landfill).

fT

There are no facts presented in this

case

~()

SupPort

the

Petitioners’

application as

seeking

either an increase in capacity or

an

increase in th~ hysical dimensions ofthe facility.

In fact, the,:

IEPA

expressly

admits

that

Petitioners

sought

~:bsolutelyno

physical

change

to their

facility,

p

(IEPA

Motion p.

15).

Further,

there

is nothing

that

ties a

facility’s

geographic

service area to.

capacity

-

a

facility

can accept the

same

anto~itof waste

despite

increases

or

decreases

its

geographic span, because its business is depen.:~u

on customer base and waste generation which

fluctuates for reasons other that and despite their location.

The

Agency’s reliance on Waste Mana

,~jentof Illinois~Jnc.v.

ilhinoisEPA, PCB 94-

153

(July

21,

1994) and

Saline

County

Landflj ~J~LC

v.

Illinois

EPA,

PCB

02-108

(May

16,.

2002), to

support

its

argument

is misplaced.

The

Board

found

that

siting

was not

required h~

Waste

Management,

as

the

change

in

contor~Fingof the

landfill

for

purposes

of

!eachate

production did

not

result

in

an

increased

capacity and there

was no

evidence

that the

proposal

I ~

Printed on

R’cyc!ed

Paper

---

substantially altered

what

was

approved

by

the

local

government,

particularly

since the

IOCSI

government did not

limit the

waste

footprint in its

siting approval. ..W~ste_Manag~j~~t

is, thus,

not precedent for TEPA’s

proposed expanded interpretation of Section

3.33 O(b)(2), as there was

evidence that

capacity would

not be increased and

the local

government placed on restriction on

the physical dimensions of the

facility.

In the

instant matter,

there

is

no

evidence

in

the reco;d

concerning

capacity of the

Petitioners’

facility;

capacity is

not

related

to

geographic

boundaries

of waste acceptance, rather, it relates

to

the sizeof the facility itself

and,

no

physical change

in

the permitted structure is proposed to occur.

Saline

County

is

likewise

distinguishable

from

the

instant

matter

and

the

Agency’s

reliance on it is misplaced. In Saiin~~Quflfl,

the landfill owner operator changed its design, after

having received siting approval of a

landfill

expansion

with a specific footprint.

This change in

design,

resulted

in

a

landfill

expansion

that

was

different

in

size,

design,

and

capacity,

since

waste

was proposed

to

be

placed

during

permitting

in

airspace

designated

during

siting

as

a

waste-free interior separation hermit

None ofthose factors

are

present in this case.

Addition~illy:

nothing

about

this

simple

request to

modify a permit

and remove

an unconstitutional

condition

call

into question any ofthe factors a local government

is called on to

review during

the Section

39.2

site location

approval process.

Further,

siting “afier

tile

fact,”

as

the

Agency

proposes

in

this

case, without any proposed change

to f~ili1ydesign

or operation (the only change being

to

the

geographic

area,

off-facility

property,

from

which

fhcility

can

accept

waste),

is

simply

inappropriate and unsupported by the Act.

Thus,

the

only

precedent

interpreting

and

applying

Section

3.330(b)(2),

requires’ both

capacity

increase

and

physical

dimension

change

for a

“expansion”

to

be

a

“new

pollution

control facility,” neither of which

exists in

the circumstances of this permit application.

Further,

16

Printed

on

Recycled Paper

---

JEPA’s

own

previous

action

on

applications

to

modify

permits

for

transfer

stations

is

inconsistent

with

the argument it makes

in this

matter.

For example,

on

March

7,

2002.

IEPA

approved

an application for a transfer station located in West Chicago, to

modify a development

and

operating

permit,

to

increase

the

capacity of a transfer

station

from

1,950

tons

per

day

to

3,000

tons per day.

(IEPA Supp1emeut~Permit No.200l~432-SP).Copies ofthe IE1~A’soriginal

p

operating permit

and

its

supplemental permit which

approved

this

described expanded capacity

are

attached

hereto

as

Exhibit

A.

For

the

Agency

who

approved

an

increase

in

throughput

P

capacity

(where

such

capacity

was

specifically

limited

in

tile

original

permit)

in

the

above

referenced

West

Chicago

transfer

station’s permit

application,

without

requiring

site

location

approval

for

this

change

and

not

asserting

that

the

applicant’s

request

amounted

to

an

P

“expansion”

under

Section

3.330(b)(2),

it

is

an

illogical

leap

now

to

argue

that

site

location

approval is

necessary to

remove an

unconstitutional geographic

restriction

on

the area of waste

b

acceptance fbr the

Petitioners’

facility.

Ther~fore,IEPA’s

argument

should

fail and

its Motion

for Summary Judgment

be

denied,

as

the

removal of the

unconstitutional

geographic

restriction

on

commerce

is

not

an

“expansion

beyond

the

boundary

of

a

currently

permitted

pollution

control facility.”

C.

IEPA’s position that to remove the

unconstitutional geographic restriction on

the

area

from

which

the

facility

can

accept

waste

requires

site

location

~pj~rovaI,amounts to an

~

JEPA’s

attempt to

squeeze the subject pennit application into either Sections

3.330(b)( i)

or 3.330(h)(2) of the

Act

runs

afoul of the legal

precedent protecting

vested rghts

from

a change

in the

law.

The

BOARD

is

well

versed

on this

precedent, since much of the case law derives

from

BOARD decisions.

See,

st ofAmerica Tt

Company v.

Armstead,

171

I11.2d.282,

664

N.E.2d

36

(S.Ct.

1966);

Chernrex

Inc.

v.

PollmLon

Control

Board,

257

Ill.App.3d

274,

628

17

Printed

on

Recycled Paper

---

N.E.2d

963

(1994);

United

States

of America

V.

Illinois

Pollution

Control

Board,

et a~,

17

F.Supp.

2d

800

~N.D.

IL

1998).

This

well

established

rule of law provides

that

“Illinois

courts

are to apply

the law

that applies by its

terms

at the time of appeal unless

doing so interferes with

a

vested

right.”

United

S~tesof America

v.

Illinois

Pollution

‘Control

Board,

et

aL,

17

F.

Supp.2c1

at

807,

citing,

~

IEPA

formulates

existing

law

in

a

manner

which,

first,

ignores current law by misstating the

legal basis ofthe

removal ofand

the unconstitutionality of

the permit

condition

at

issue.

Second,

IEPA

applies

the

current

law

retroactively

in

a manner

which

ignores

Petitioners’

vested

right

in

its

permits

by

arguing

Petitioner

has

no

pollution

control facility permits or that an unconstitutional

geographic

restriction on

its

pollution control

facility permit

should

be enforced

to require it to go

through siting as

a’ “new” pollution ‘control

facility if Petitioners’

seek

to

have such restriction

removed.

Both

arguments

are inappropriate

constructions of the

law

and,

as a result,

the

IEPA’s

Motion

for Summary Judgment should

he

denied.

CONCLUSION

Upon

the

determination

that

Sections

39.2,

3.32

and

22.14

were

unconstitutional

as

applied

to

facilities

—

such

as Petitioners’

—

that

were

prohibited

from

accepting waste

beyond

certain

geographic

limits,

any

existing restrictions

imposed upon those

facilities based

on those

statutes

because null,

void and

unenforceable

as a matter of law.

Alternatively,

that portion of

Special

Condition No.

9

at issue in this

case

should be deleted

from

tile

Petitioners’

permit and

found

to

be

unconstitutional

for

tile

reasons

stated

above.

Thus,

the

contested

language

of

Special

Condition

No.

9

is either effectively eliminated from the Petitioners’ operating permit as

null

and

void,

or

is

affirmatively

deleted as being unconstitutional.

The

IEPA

should

not

be

allowed

to

enforce

or

apply

the

progeny

of

unconstitutional

statutes

upon

which

Special

18

Printed on

Recycled

Paper

---

Condition No.

9

and the IEPA’s decision was ultimately based, through

its

tortured application

of Sections 3,330(b)(1) and

(b)(2),

which,

as described

above,

are

not

rel~vantto

the subject

permt

application.

Thus,

IEPA’s

Motion

for

Summary

Judgment

should

be

denied

and

Petitioners’ Motion

for Summary Judgment should be granted.

WHEREFORE,

Petitioner,

United

Disposal

of

Bradley,

Inc.

and

Municipal

Trust

&

Savings

Bank

as

Trustee

Under

Trust

0799,

respectfully

request

the

Board

enter

an

order

denying

the

IEPA’s

Motion

for

Summary

Judgment,

granting

the

Petitioners’

Motion

for

Summary Judgment, and

providing such other and further relief as the Illinois Pollution Control

Board deems appropriate.

Dated: February 4, 2004

Respectfully

submitted,

UNITED DISPOSAL OF BRADLEY, INC.

and

MUNICIPAL TRUST

& SAViNGS

BANK, AS

TRUSTEE UNDER TRUST 0799

~

.~

.‘

By:_~)J~

~iZ~

One of their attorneys

Jennifer J. Sackett Pohlenz

David E. Neumeister

Querrey & Harrow, LTD.

175

W. Jackson Blvd.,

Suite 1600

Chicago, Illinois

60604

Phone: (312) 540-7000

Fax:

(312) 540-0578

19

Printed

on

Recyded Paper

---

m

0~

—1-

J

---

• —~.‘—

-

_____________

-

—‘——--:---~—~-

-—

—~—~

••‘~~-

~.

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

P

1021

NoRTH GRA’.DAVrNU~

EAST,

P.O.5o~

19276.

Sp~t~cf~ttO.

tw~nis

62794-927~,

RENEE

CIPR~ANO,

D~RE~roR

217/524-3:300

Certified_Ma’fl

March 7,

2002

7099

3400

0014

9525 7092

Groot industries, Inc.

Attn:

Mr. Larry

Groot

1759 Elmhurst Road

Elk Grove Village, flhinois

60007

Re:

0430905819

DuPage County

Dukane Transfer Facility

Permit No. 1997~412-DE/OP

Log No. 2001-432

Supplemental

Permit No. 2001-432-SP

Permit File

Dear

Mr. Groot:

Supplemental Permit is hereby granted to Groat industries, l~c.

us

owner and operator pursuant ~e

35

flhinois Adrninisrsative Code (hereinafter 1AC)

Subtitie G, Part

807,

Spcu~ificaIJy,ibis

supplemental permit

approves the

rc~uestfor an increase in

the maximum throughput to

3,000

tons

per

day,

increase the permitted hours of operation.

modify

the

facility~s

cleaning

requirements, modify the

vehicle

sta~ir.g

requirements, and modify the vehicle

tarping

requirements.

Final plans, specifications, application and

supporting

documents

as

suhrrittcd a~

approved shall constitute part

ofthis~

permit and are

idcntified

on the

recordi

of

the Illinois

Environmental Protection Agency,

Bureau

of

Land

by

the permit number(s) and log number(s)

designated. in thc.heading above.

The application approved

by this pehr.it consists of the following documents:

DOCU1~vmNTS

DATED

DATE R~?;CE~VEt)

Original Application

November 2001

November 9.

200).

Log

No. 2001-432

The special conditions listed below

nclude a compilation of

all conditions, which remain in effect

from the previously issued

permits ~orthis facility.

Unmodified non-standard conditions

from

previous

permits are

referenced by th~

(irst permit

in which they appeared.

f~F1~BIT

GEORGE

H.

Rv,~,

GOVERNOR

---

IT

I

Page2

The

permit

is issued subject to the staL2rd conditions attached hereto

and incorporated

herein by

reference, and further subject to the f~llowing

special conditions.

In case of conflict between the

application and plans submitted

and

t~iesc.

special conditions, the

special conditions of

this permit

shall

govern.

A.

DEVELOPMENT AND OPER4tTION

1.

This

permit approves the operation

ofa pollution control facility to

receive and

transfer

municipal solid

waste,

rcsi~entiai

landscape waste,

and

segregated rccyclablcs.

(Permit

No. 199712-OP)

.

•

2.

This

facility shall-only acc4pt-rnunicipai solid waste,

residential lands±ape

waste, and

segregated recyclable-s all of which shall riot exceed 3,000

tOns per

day.

(Permit No.

2001-432--SP)

3.

This permit

is issued

with

~hcexpressed

understanding

that no process discharge to

Waters of the State

or to a

banitary sewer will occur

from

these facilities,cxcept

as

authorized by

a permit

froTh

the Bureau

of

Water (BOW).

(Permit

No.

1997-412-DE)

4.

Pcrrnittce shall notify

the Illinois EPA of

any changcs

from

t~icinformation submitted

to the Illinois EPA in its a~plicationfor a Development and Operating perrmt for this

Cite-.

Petmittee

shall notif))

the

Illinois EPA

of

any

changes in the narnc~

or addresses

of both beneficial and legai

tiilchoders to

the herein-permitted site.

Sucii notiflcatior

shall he made in writing within fifteen (15)

days of such

change and

shall include the

name

or

names of any

parties in

interest

and the

address of their place of abode;

cm,

if

a

corporation,

the name and ~iddrcssof its

registered agent.

(Permit No~

i997-412-DE)

Site surface drainage,

cturit~ig

development, during operation and after the site

is closed,

shall be such that

no adverse effects

are

encountered by adjacent property o~ncrs.

(Perrnit.No. 200 1-432-SP)~

6.

The leachate rank and app~irten2ncesshall be

constructed of materials

that do eut

reart

with

the leachate.

The 1ea~hate

tairk shall

be emptied every $ months or when

the

‘iqutd lev~l

reaches 90

o~the

rank~apacity

whichever comes

ft

at

~

~he~

managed in

accordance

wi~.hall

applicable rules and regulations.

(Per~oitNo.l~97-

412-DE)

7.

The best available

techriol1gy

(mufflers. berms

and

other sound shielding devi~es)s~a.

be employed to

minimize

equipment noise impacts.on property adjacent to

the Stte

during

both

deveioprñent, ~peration

and during arty applicable

post-closure care per~c~

(Permit

No.

1997-412-DE

---

t~OD4

Page3

I

8.

The

facility may receive waste at the site from 4:00 a.ni, on Monday through

12:00

p.m.

(noon) on

Saturday.

~perating hours on Saturday

may be extended

to

i2:0o am.

(midnight)

on

Sunday during

wecks

containing the follov~’ing

holidays:

New

Year’s

Day, Memorial

Day, Thde~ender~ce

Day, I~borDay, Thanksgiving Day

and

Christmas

Day.

(Permit

No.

2001-432-SP)

9.

Fire safety equipment as described

in Application Log

1997-412

and fire

extinguishers

shall be

maintained

in acc~trdance

with

recommended practice.

(Permit No.

1997-412-

DE)

10.

.

T~e

perrnittce. shall rcmovc.ail

waste

and

the~hanically

clean the

.tippin~

flbor.at

least

once aday.

V7aste rnayb~lcftatthe siteovernight;

however, once waste i~

stored it

must be in

a coveted contAiner, covered transfer trailer,

or waste cOllection vehicle.

No

wasteshali

remain

at the facility

when

the

site- is not scheduled to be open

the

following day.

(Permit

Nc1i:

20D1-432-SF)

11.

A vector control specialist

shall inspect the transfer station

buildingat

least

quarterly.

if necessary,

vcctorcontroti measures shall be

taken.

(Permit No.

1997-412-DE)

12.

Management of Unauthorçzed Waste

a.

Landscape

waste shall be removed the same day and transported

to

a facility that

is operating

in accor~.ance

with the Illinois

Environmental Protection

Act (Act),

Title V, Sections

21

~nd~9 415

ILCS

5/21

and 39).

(Permit

No.

I 997-412-DE)

b.

Lead-acid bancde~

r~.ixcd

with municipal

waste will be removed the same day

and

~a.nspor~ed

eith~r

to

acirop-off c~nter

handling

such waste,

or

to a lead-acid

battemy

rctailer.

(Per~mi:No.

1997-4 12-DE)

.

S

c.

S-pccia-wastes

inclu~ing

hazardous

waste, non-hazardous

special waste,

and

potentially infecticu$

r~edical

waste

mixed with municipal

waste

shall be

containerized .scpara~.&v

and removed as soon as possible by a licensed special

waste hauler.

Speci4l

v.astes shall be transported to a licensed special

wasta

management faci)i~y~thz:

has

obtained

allthori?;adoct

to accept

such

waste.

The

operator shall maint4ir.

a

contract

with haulers

so that

the itnmediate removal

is

ensured.

The opcratbr s~alt

develop an

emergency response/action plan

for suc~,

occurrences.

(Permit No.

1997-412-DE)

d.

Asbestos debris froth cr.tsrruction-demolition shall be managed in accordance

with the National Er~iissionStandards for

Hazardous Air Pollutants (NESHAPS)

regulations.

(PermitNe.

1997-412-DE)

---

Tires found to

be

mi~edwith

municipal waste shall be removed and managed

in

accordance with

35

111.

Adm. Code

Part. 748.

(Permit

No.

1997-412-DE)

White. good compon~nts

mixe.d with municipal.was,te shall

be removed and

managed in

accor4ar~ce

with Section 22.28 of the Act 415

ILCS

5/22.28J.

(Permit No.

1997-412-DE)

The operator shall nOt l~owingly

mix liquid used oilwith any

municipal waste

that

is

intended

for cbiiectiôn

and disposal at a landfill.

(Permit No. .1997-412-

DE)

h.

After the unatithoriz~d

waste Jai

been

removed from the transfer station,

a

thorough

cleanup of

the

affected

area ~villbe made according to

the- type of

unauthorized waste

x~nanagcd.Reät~rds

shall

be kept for threc

years and will he

made available to th? Illinois EPA-BOL upon

request.

(Permit

No.

i997.—~12-DE)

The pcrmitt~may stagn

to twenty

(20)

transfer

trailc~,

up

to

ten

(10),

which may

be

loaded

and

tarpcd and

tip to ten (10) empty transfer

trailers.

The

permirtee.

may

oaiy

stage- the twenty (20)

tran~fer

trailers

within

the.

transferbuilding

fur

shipment

by

I 2:00

p.m.

(noon)

of

the

next oj~crating

day.

(Permit

No.

2001 -‘432.SP)

~incoming

roll off waste- collection vehic’k~sthat ~e no~

carping

mc-chanisrns to un-tarp within the designed area on

~lication

dated November2001 for

Log

No.

2001-432,

prior

to

ty.

The

pefmittee shall

only allow vehicles that are

equipped

mechanism to

un-tarp after

entering

the transfer

building.

The

permittee

shall aHow~a)loutbound transfer trailers

to tarp outside of the

transfer

building within

the

area d~esi~iated-on

drawii~g9

of

Gr~ot~s

application dated

November 2001

for

Log ~o.

2001-432.

The

permirtee- shall

provide litter control

in

this designated area.

(i’ei~rnit

No. 200 1-432-SF)

Any modification to the f~cility

shall

be

the

subject

of

an

application for suppler ental

permit

for

site modification submitted to the Illinois EPA.

(Permit No.

1997-4i2Di~

The

closure plan dated N~vernbcr

1997 which

was received by the Illinois EPA on

December

8,

1997

is app~oved

in accordance with 35 B!. Adm. Code,

Subtitle

G, Part

807.

(PermitNo.

1997-4a2-DE)

C.

f.

g.

Page 4

A.).

14.

The pcimitr.ee

shall

allow

equipped with

automatic

drawing 9, of Groot’s ap~

entering the

transfer facili

with an automatic

tarping

(Permit No.

2001-432-SF

15.

16

B.

CLOSURE

---

Page

5

2.

The operatorshall notify tF e Illinois EPA

within 30

days

after receiving the

final

volume of

waste.

(Permit No.

1997-412-DE)

3.

The operator ~ha11

initiate Impiement~tion

of the closure plan within

30

days after the

site receives

iLs

final

volurr1ie of waste.

(Permit

No.

1997-412-DE)

4.

The operator shall not

file any

application to modify the

closure

plan less than

180 days

prior to receipt ofthe final ~volume

of waste.

(Permit No.

1997.-412-DE)

5.

Upon completion

of closurp

activities,

the

operator will notify

the Illinois EPA

that the

site. has been cio~nd

in

ac~c?rdaoce

with

the ap~ro.ved

closure

plan

utilizing. iheiJlinoi~s

EPA’s “Affidavit for Certification ofComplction of

Closure of Non-’Hazardous

Waste

Facilities.”

(Permit

No.

19

7-412-DE)

6.

In accordance with 35

UI. ~

Code, Subtitle G,

Part 807, Subpart F, ñrianciai

assurance is not required for this facility.

(Permit No,

1997-412-OP)

The

original

and

two (2) copies of

all

certifications, logs,

reports

and plan sheets which are

required to be

submitted

to the Illinois EPA by the

permittee should be mailed

to the

following

address:

illinois Environrncnt~l

Protection Agency

Permit

Section

l3urcauofLand--#3~

1021

North Grand

A4cnuc

East

Post Office Box

i92~6

Springfield, flhinois

(52794-9276

Except as modified in the above documents, the site shall be

operated in accordance with the

terms

and

conditions ofPermit Nos.

i997-412-DE and 1991412-OP dated

March20,

1998 and

March

5,

1999~

respectively,

and witl~rother permits

issued for this site.

Within

35

days after

the date oi rnail~ngof the Illinois

EPA’s final decision, the applicant may

petition for a hearing

before the fllin~isPollution Control Board lo contest the decision of the

Illinois EPt~.,however, the 35-day peFiod for petitioning for a

hearing

may be

e,-~tencJed

for

a

period of time not to exceed 90

days 1by

written

notice provided to the Board from

the- applicant

and

the Illinois EPA within the 35-day initial appeal period.

Work required by this permit, your application or the regulations may

also be

subject

to other

laws

governing professional services~such as the

illinois

Professional

Land

Surveyor Act of

19E~,

the

Professional Engineering Practice Act of

1989, the Professional Geologist Licensing Act, a~

the Structural Engineering Licensing~

Act of 1989.

This

permit

does not relieve

anyone from

---

iLLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1022

NOTth

Grand

Avenne

East,

P.O.

Box

19276,

Sprin&flt.’!d, illinois

62794-9276

Mary A. G~L’,

Dir~ct~r

217/524-3300

CERTIFIED MAIL

March

5, 1999

P 344335797

P

344

335

798

OWNER

QRERKLQR

Brazos Nationwide Properties,

LP

BFI Waste Systems of North America,

Inc.

Mn: Mr.

Gregory C. Greene

Attn:

Mr. Charlie

Murphy

2911

Turtle Creek Blvd., Suite

1240

325

E. Fullerton

Avenue

Dallas, Texas

75219

Carol

Stream, illinois

60186

Re:

0430905819-~DuPageCoun1y

Dukane Transfer Facility

PermitNo. 1997-412-OP

Log No.

1999-004

Permit File

Gentlemen:

Permit is hereby granted

to Brazos Nationwide Properties, LP

as owner and BFI Waste Systems of

North America, Inc.

as operator to operate a solid

waste

management site

to transfer municipal solid.

waste and

landscape waste consisting of 6.3459 acres in the parcel of land described

in DRAWING

NO.

D3

entitled “Site flat of Survey” contained

:n

Application Log

l997--412.

all

in accc’~-dance

with the application and plans prepared,

signed a::d sealed by Devin

A.

Moose, P.E., of Engineering

Solutions dated January 7,

1999 and received

by t~c

Illinois EPA

on

January

8,

1999.

Also,

additional

information

submitted by

Carol Schul:z of Engineering Solutions dated February

19,

1999 and

February 25,

1999 and received

by the ~iinois EPA on February

22,

1999

and March

1,

1999,

respectively.

Final plans, specificatns, aplication and supporting documents assuhrnitted

and approved shall constitute

part

ofthis permit arid are identified oti the records of the

Illinois

Environmental

Protection Agency, Bureau of Land by

the permit number(s) and

log number(s)

designated

in the heading above.

The permit is issued subject to

the standard condizions attached hereto and

incorporatedherein by

reference,

and further subject to the following special conditions.

In case of conflict

betwren

the~

application and plans submitted

and these speciz2 conditions, the special conditioos

of this

permit

shall govern.

A.

DEVELOPMENT AND OPERATION

1.

This permit approves the operation ofa pollution control facility to receive

and transfer

municipal solid waste,

residential landscape

waste, and segregated recyciables.

~

2.

This facility shall only accept municipal solid

waste, residential landscape waste,

and

segregated recyclables all of which shall ~6t~kc~ed 1,950 ~t6n~

perd~y

3.

This permit

is

issued with the expressed understanding that

no process discharge to

Waters of the State or to a sanitary sewer will occur

from

these facilities, except as

authorized by

a permit from the Bureai of Water (BOW).

---

IT.

Page4

5.

Upon completion

ofclosure activities, the operator pull notify the Illinois

EPA that the

site has been closed

in accordance

with

the

approved closure plan utilizing the Illinois

EPA’s

“Affidavit for Certification of Completion of Closure of Non-Hazardous Waste

Facilities.”

6.

In accordance with

35111.

Adm. Code,

Subtitle

G, Part 807,

Subpart F, financial

assurance

is not required for this facility.

The original

and two (2) copies of all

certifications, Io:s, reports

and

plan sheets which are

required to be submitted to the Illinois EPA by the permittee should be

mailed to the following

address:

Illinois Environmental

Protection Agency

Reporting

and

Financial Assurance Unit

Division of Land Pollution Control

--

~24

1021

North

Grand Avenue East

Post Office Box

19276

Springfield, Illinois

62794-9276

Within

35 days after the date ofmailing of

the

Illinois EPA’s final

decision, the applicant may

petition for a

hearing before the

Illinois Pollution

Control Board

to

contest

the decision

of the

illinois EPA,

however, the 35-day period for petitioning

for a hearing

may

be cxier~dcd

for

a r~eriod

oftime riot to exceed 90 days by

written notice provided to the Board

from the applicant and the

Illinois

EPA within the

35-day initial appeal

period.

Work

required by this

permit,

your application

or the regulations

may also

be

subject to other laws

governing professional services, such

as the

Illinois Professional Land Surveyor Act of i989, the

Professional

Engineering Practice

Act of

1989, the Professional Geologist Licensing Act, amrdthe

Structural

Engineering Licensing

Act of

1989.

This permit does not relieve anyone from

compliance with these laws and

the regulations adopted pursuant to these laws.

All work that falls

within the scope and definitions ofthese

laws must

be performed in compliance with them.

The

Illinois EPA

may refer any

discovered violation ofthese laws to

the appropriate regulating

authority.

Sincerely,

~JoyceL. Mun~,

P.E.

~

Manager, PeHr~it

Section

Bureau ofLand

JLM:CMR:bjh\983093S.WPD

Attachment:

Standard Conditions

cc:

Devin A. Moose,

P.E., Engineering Solutions

Kevin Dixon, Director, DuPage County Department of Solid Waste

Kenneth Dean,

City of West

Chicago

---

STANDARD CONDITIONS

FOR CONSTRUCTION/DEVELOPMENT

PERMITS

ISSUED

BY THE lLL~OlSE~IRONMENTALPROTECTION AGENCY

July

1,

1979

The Illinois Environmental

Protection Act (Il1ino~sRevised Statutes,

Chapter

111-1/2,

Section

1039) grants the Environmental

Protection Ag~cyauthority

to

impose conditions on

permits

which

it issues.

These standard conditions shall

apply

to all perrc~:

s which the Agendy issuesfor construction or

development, projects

which

require permits under the Division of Water Pollution

Control, Air

Pollution Control, Public Water Supplies,

and

Land

and

Noise Pollution Control.

Special

conditions may

also be

imposed by~theseparate

alvisions in

addition to

these standard conditions.

1.

Unless this permit has been extended or it

~ias

been voided by

a newly issued pen~t,this

permit will expire two

years after date of

~:s~ancc

unless construction or development on

this project has started on or prior to

that ca:e.

2.

The construction

or development of facih:.es

covered by

this permit

shall

be done in

compliance

with

applicable provisions of~ederallaws and regulations,

the Illinois

Environmental

Protection Act, and Rules

aid Regulations adopted by

the Illinois Pollution

Control

Board.

3.

There shall

be no deviations from the ap~::~ed

plans and,

specifications

UnI~SS

a written

request

for modification of the

project, a~i:gwith

plans and

specifications as required, shall

have been submitted

to the Agency

and

a

:‘Dlernental

written

permIt issued.

4.

The permittee

shall allow any agent dci:.

a~thonized

by the Agency

upon the presentztion, of

credentials:

a.

to enter at reasonable

times the

pe

~

premises where actual or potential

effluent.

emissions or noise sources

are

loca:ed or where

an.y

activity

is to be conducted pursuant

to

this

permit.

b.

to have access

to

and

copy at rs::~e

times

any

records

required

rc,

he kept under the

terms

and

conditions of thi.s pcnn::

c.

to

inspect at reasonable times, in:eding

during

arty hours

of operation ofequipment

constructed

or operated under this

:ermit,

such equipment or monitoring methodology

or equipment required to he

ker:

used, operated,

calibrated

and

maintained under

this

permit.

d.

to

obtain

and

remove at reasona~e

times

samples of

any

discharge or emission of

pollutants.

---

e.

to enter at reasonable

times and utilize any

photographic,

recording. testing,

monitoring

or other equipment for the purpose of preserving, testing,

monitoring, or recording any

activity, discharge, or emission authorized

by

this

permit.

5.

The issuance of this permit:

a.

shall

not be considered as

in any mnanner’affecting the title of the premises upon which

the pen-nitted facilities are to be located;

b.

does not reIe~se

the

permfttee from

any liability for damage to

person or property

caused

by or resulting from the construction, maintenance, or operation of the proposed

facilities;

c.

does not release the perminee frorti compliance with

other’applicable statutes and

regulations of the United States, ofthe

State of Illinois; Or

with applicable local

laws,

ordinances arid

regulations;

d.

does not

take ~to

consideration on attest to

the structural stabili~of any ur~or

parts

of the project;

e.

in no manner implies or suggests that

the Agency (or its

officers, agents or employees)

assumes any liability, directly’ or indirectly, for any

loss

due to

damage, in~taUation,

maintenance, or operation of the proposed equioment or facility.

6.

Unless a joint constwctio~Voperationpe~it

has been issued, a

t;ermit

for oreratine shall

be

obtained

from

the Agency before

the

facility or equipment covered by

ti-us

permit

is

placed

into Ooeration.

7.

These s~ndardconditions shall prevail

unless

modified

by special conditions~

8.

The Agency

may file

a compliant with the Board for modification, suspension or revocation

ofa permit:

a.

upon discovery

that the permit application

contained misrepresentations,

n~isinformation

or false

statements or that all

relevant facts were

not disclosed;

01

b.

upon finding

that any

standard

or special

conditions

have been violated;

or

c.

upon any violation of the

Enviror_rnental Protection Act

or any

Rule or Regulation

effective thereunder as

a result of the construction or development authorized by this

permit.

TA:bjh\9831 IS.WPD

---

APPLICATION

FOR AN

OPERATING

PERMIT

FOR THE

DuKANE

‘TRANSFER

FACIU1Y

SOLID WASTE

TRANSFER

STATION

SUBMI1TED

TO THE

ILLINOIS

JANUARY,

199

Submitted

by:

BH WASTE SYSTEMS

OF

NORTH AMER~CA~

~NC.

En

gineering Solutions

A

DMdon of

Flufd

Mana~entand

4)

9,iV1AOG~

~.

‘4

---

ATTACHMENT’ B

FACILITY

OPERATING

PLAN

~

---

O

Regulated arid Manifested Special

Wastes

O

Radioactive Wastes

O

Lead-Acid (automotive) Batteries

No salvaging will be conducted atthefacility, with the exception ofcardboard, and

the.removal

of tires, white goods

and

lead-acid batteri~from

the waste

stream

for

proper recycling

or

disposal.

The

recycling

of white

goods

will

be

conducted’ in

accordance with

the

CFC

regulations of 40 CFR part

82.

BFI will reject other materials and/or loads that are not compatible with the operations ofthe

transfer

fad

lity.

Anyvehicle known or reasonablysuspected to be carryingunauthorized waste,

or any

vehicle that appears likely to leak, spill or allow waste to be blown or scattered will be

denied access to the facility.

Any vehicle that

is

not in

a safe, clean,

and repaired condition will

also be denied admittance

to the facility.

Waste Quantity Accepted

The facility has Ieen designed to transfer an average

of

1,500 tons per day

of waste. and

wi~i

not accept more than

1~9SOtons ofwaste during any single day.

Waste Transfer Operations

Incomingwaste collection vehicles w~fl

enterthe J)uKaneTransler

facilitythrou~thcentrance

along Powis Road and proceed to the m~und

weigh

station.

lathe

event that ahackuj~

occurs

at the scale;

incoming

vehicles wifl

fln~

up within the queuing area bctw~enthc entrance and

the scalehouse, as shown on

Drawing

~o. D6.

All

waste

o11e~tion.vehicles wilt be weighed

on the inbound scale before proceedin~

to

the transfer bufldirig.

After weighing, the loaded collection vehicles will proceed to the transfer building.

Vehicles

will

leave the scale and drive eastward

until entering the paved area on the east side (behind)

the transfer building.

Once within the taved maneuvering area, the trucks will

back into one

of the five tipping

bays, depending

o:i

which bays

are

currently

unoccupied

and

how the

incoming vehicles are directed by the traffic controllers.

After tipping their loadon ~hetipping

floor, the waste collection vehicles ~

then drive cut of the building and proceed around~

the

southern limits of the transfer buiIdi~

towards the outbound scale.

if the tare weight ofthe

vehicli~

is on file within

the

computer~zeLi

scale system,

the waste collection v~hic1e

may by-

pass the outbound scale before 1eavin~

the facility.

‘

Once tipped on the tipping floor, waste will be temporarily stockpiled or directly loaded i~ito

waiting transfer trailers within the loading bays.

Two wheel loaders will be used to stockpile

waste

against the pushwalls,

and

t±ie~i

to

scoop the waste

and

load it

into

waiting

transfer

trailers.

Note

that the loaders

will ~e required to

lift the waste over the four

~4)

foot

high

parapet wall which surrounds the edge

of

the loading bay.

Thewestern halfofthe tipping floor

fI:~OOJ!C1OOJjtReporis~op.jIan.wpd

2

DuKane

Transfer Fadilhiy~Opera(iflgPet7~

January

1999

---

n

I

D

arrive at the facility.

Note that

this distribution

is

approximate, and

may vary depending on

seasonal

fluctuations and the

day

of the week.

TABLE

2.4-1.

COLLECTION VEHICLE

PROCESSING TIMES

•

Activity

~

Minimum Time

Required

Maximum Tirnc

Required

EnterSite

(Approx.

370

feet at

10

miles per

hour)

30

seconds

.

I

minute

Weigh-In at Inbound

Scale

30

seconds

2 minutes

Proceed to

tipping floor

and maneuver position

(Approx.

675 feet at

10

miles per

hour)

1

minute

2

minutes

Detarp Load or Unfasten Locking Mechanisms

30

seconds

5

mihutes

Discharge Waste

3

minutes

5

minutes

Lower Hopper orHoist

1

minute

3 minutes

Procccd to

exit, pausing at outbound scale (if

ncccssary)

(Approx.

1000

feet at

10 miles per hour)

1

minutc

3 minutes

lime On-Site

7

minutes,

30

seconds.

21

minu?cs

Knowing that up to

17 collection vehicles

may arrivc

at

the facility on

an

hourly basis (within

the

1,500 tpd average),

it is necessary to verify that the facility can process

17 vehicles within

an

hour.

The

first

area which

must be

evaluated

is

the inbound

scale,

where

all

incoming

~

the

maximum

proj

ect~~d

time

period to enter the siteand

cross the scale

(3 minutes,

as

~

be

ut~Hzed

for:

(17 vehicles) X

(3 minutes per vehicle)

51

minutes

per hour

Therefore, the scale can process all

of the incoming

collection vehicles

even

‘if all

vehicles

require the maximum processing time

(assuming an

even

arrival

rate

during the hour).

In the

event

that the tmcks do

not

arrive

at

art

even

rate, stacking space has

been provided

at

the

inbound scale.

The next areawhich must be evaluated is

the

tipping fibor.

Drawing Na. D7 demonstrates that

tipping

lanes w~lI

be provided forfive

(5) collection vehicles to disch~rge

onto the tipping floor

simultaneously.

Assuming

that all of the collection vehicles

requir~

the maximum

length

of

time to

discharge (conservatively estimated at

15

minutes, which includes indoor ~etarping):

17 vehicles x

15 minutes per vehic1e

255

minutes ofuse of the tipping floois

Ff:\OO!IC~OOfj’.ReporL~opji1wtwpd

DuKwm’

Transfer Facility

-

Operating Perirt

it

Janua’y

1999

---

may arrive at the facility than can be removed within the same hour, arid this excess waste will

be stockpiled on the tipping floor.

The tipping floor

has

been designed to provide temporary

storage space for waste during these peak periods, and thewaste will he stockpiled against the

pushwalls

located along the western side ofthe tipping floor.

As the incoming waste volumes

decrease,

the loaders can continueto load the transfer vehicles and reduce the stockpiled waste,

removing

all stockpiled waste from the tipping

floor

by the end of the d•ay or earlier.

Appendix J provides a detailed analysis which demonstrates that during the

1,500 ton

per day

processing scenario, the tipping floor storage capacity will not be

exceeded.

The appendb~

documents that the tipping floor can temporarily stockpile up to

1,480 tons of

waste

without

interfering with

the transfer operation.

During normal operation

with a~

1,500

ton

per day

scenario, a

maximum ofapproximately

104 tons of waste

will

be stockpiled on the floor at any

time~

less than

10 percent ofthe 1,480 ton storagecapacity.

The calculation also shows that all

waste

will be removed from the floor at the end ofeach day, allowing the

floor

to

be cleaned

and swept.

Therefore,

BFI proposes that within

two

hours of the designated

closing time, all

waste

will be removed from

the facility or properly stored,

the tipping floor cleaned,

and

the

facility closed.

Note that for the analysis, the maximum

loading

rate fortransfer vehicles was conservatively

estimated to be approximately 66 tons per hour(3

trucks at

22

tons each) per Joading hay.

Two

(2) transfer trailer loading bays

are

proposed, resulting in a facility loading rateof 132 tons per

hour(6 trucks at22 tons each).

This rate allows a generous 20 minutes

to perform

the

following

tasks:

O

Position

an

empty trailec in

the loading

bay;

O

Load the trailer;

O

Cover the trailer;

U

Remove the trailer from the loading

bay.

Stacking space will be provided to

store empty trailers waiting

to

be loaded,

and the stacking

areas will be located to

avoid interference with theflow of vehicles entering

and

exiting the

transfer facility building.

A stacking area for the south loading bay is provided to the east of

the transfer fa~i1ity

building, as shown on Drawing No. D6.

Stacking

for

the

north loading bay

is provided along thenorth side ofthe loading bay ramp, with additional stacking areaprovided

to theeast ofthe loading bay ramp.

Together, these stackingareas prQvid~

soac~

~~:c

13. waiting

transfervehicles.

In addition to this

stackir~g

area, additional storage space may be developed

within the parking area on

the west side of the transfer facility building,

as sbown

on

the

drawing.

As a further conservative analysis, Appendix

J

also demonstrates that the entire 1~5OOton per

day volume

can

be

transferred

through a single

loading bay.

The

calculations

within

the

appendix document that

a single bay can be used to

transfer all

1,500 tons from the facility,

assuming the waste transfer vehicles

can

be loaded at a rateoffour veh~c1es

per hour.

Although

!f:~OOIf~OOIjpor~s~op.plan.wpd

6

DuKane Transfer Faci1i~’

-

Orj

erating

Permit

Jartualy 199

---

TABLE 2.4-2.

EQUIPMENT REQUIRED

Equipment

Number

Required

Purpo~e

Wheel

Loader

2

Loadingwastefrorn tipping

floor to

transfer

vehicles,

Street Sweeper

-

1

Facility CIcan~ng

Load

Checking

BFJ

will

implement

a random load checking

program at this

facility, similar

to

the landfill

inspection

requirements outlined within

35

III. Admin. Code,

Section 811.323

An inspector

designated

by

the facility will examine at least three random loads ofsolid waste delivered to

thetransfer facility on a random day eachweek.

The drivers randomly selected ~ti1Ibe directed

to discha~rge

their loads at a separate, designated

location within the facflity.

The facility will

conduct

a detailed inspection ofthe discharged material for any regulated hazardous or

other

unacceptable

wastes that may be present.

Furthermore, continuous inspection of all waste tipping operations shall be provided by spotters

stationed

on the tipping floor for the purpose of ideiit~fyingpotentially non-complying wacte.

At

a m~nirnum,the number ofspotters will equal the number of transfer trailers being loadcd

at any one time.

Any non-permitted

waste

will be

promptly

isolated

from

the

waste

stream,

containerized

and

removed from the transfer facility as soon as practicabie

in

the manner as

re~uircd

by

all applicable laws and

regulations.

Such removal shall be performed by

a licensed

special wastc or hazardous waste hau!cr and disposed of at a facility permitted to accept such

waste.

in addition to the checking proccdures ernp~oyed

at the transferfacility,

all

of the hauk~s

which

usethis facility will be required

to instruct their drivers not to accept wiauthorizecl w~tesfrom

the

curbside.

BFI collection

vehicle operators will be

instructed to

recognize un~uWorized

waste as part oftheirorientation and ongoing training programs, and third-party haulers will be

notified of the waste acceptance procedures on or before their

Lust

visit to

the

facility.

Third-

party

haulers

who

regularly

use the

facility

will

receive

copies

of the

waste

acceptance

procedures

and

rules when they establish

accounts with BFI.

Smaller haulers, who

may be

using the facilityonce oron

an infrequent basis, will be provided

with

a copy ofthe

rules upon

entry

to the facility.

These rules will encourage curbside screening

of

waste as

it is collected.

Through this checking program, an additional level ofscrutiny will be

provided at the curbside

to prevent the acceptance ofunauthorized wastes.

BFI has developed an internal training course, “Hazardous Waste 1)

and

Respons~

to train its

employees to recognize and properly

hand1~

unauthorized wastes.

Unacceptable wa~.e

which

does not represent a health

hazard

will be reloaded onto the collection vehic~e

which

delivered

it.

Ifthe unacceptable waste is suspected to be hazardous in nature, the waste will be is~jiated

and

the

driver delivering

the

waste

will

be

questioned

as

to

its

source.

If the

waste

is

subsequently

determined

to

be

hazardous,

BFI

or

another

appropriately

licensed

waste

handler/hauler

will

containerize, remove,

transport,

and

dispose of the waste

in

a

permitted

facility at the cost ofthe responsible party.

Ifthe unacceptablewaste is determinedto be special

~

8

DuKane Transfer Facility

-

Opera1ia~

Ferir.?:

January 1999

---

Employees will be instwcted that an open flame or smoking near any

fuel is prohibited.

Communkafion

Systems

AU equipment operators will be connected with the facility manager and scale house operator

via phone or radio.

Telephones will be located on-site in case of an

emergency, and

will be

located at a minimum within the scalehouse, employee facility areaof

the

transferbuilding, and

the administration

building.

Continuous

communication

betweer1 facility management and

employees will help to prevent accidents orother operating problems from developing and will

facilitate an

effective response to a problem should it occur.

Recordkeeping

BFI will maintain accurate and up to date records

on

the operations of the transfer facility. At

a minimum, the facility viill

maintain the following information for a two year period:

All information submitted to

the ‘~EPA

U

Daily, weekly, monthly, and annual

waste receipts

U

Load checking records

O

Training procedures

U

Employee records

U

Closure and post~c!osure

cost estimates

Litter Control

BFI will control

litter by discharging and loading

all

waste within

an enclosed

building.

All

waste vehicles utilizing

the

facility must be fully containerized, covered, or use other means to

prevent litter from being blown

front vehicles

during travel:

BFIwilI require that all

trucks

using the facility remain covered orclosed until parked within the tr~nsfer

building.

Although

this policy exceeds currentsta.ndardsofpracticeatmany transfer stations

and

will add additional

processing time, the applicant

is

committed

to

implementing the policy to

further reduce the

opportunity forbiowing litter.

Similarly, all transfer trailers will be tarped whilestifl within

the

loading bays, beforepulling

out

of

the

building.

The only allowable deviation

froir~

this

policy

mayoccurwith~n

situations wheredriversafety maybe

compromised.

The applicant, recognizes.

that

this policy will requireadditional processing time within thebuilding, and has provided an

ample numberoftipping and

loadout bays to

accommodate

the

proposed processing vo~urn~s.

If litter does escape the building, several additional safeguards exist to

prevent

the

litter from

migrating off-site.

The sitewill be surrounded by

a chainlink fence, which will intercept

any

blowing litter before

it

leaves

the site.

One employeewill patrol the site several times daily to

collect any blowing litter, as required.

H:OOllCWO1jd?epo~1stopj~kn.

wpd

10

DuKane Transfer Facility

-

Operatir~g

Fermi!

Jani~ary

1f’99

---

r

will also clean the site roadways regularly.

Dust may also

be

created during the tipping and

loading ofwaste within the transfer building, particularly during the transfer of dry mate~iaIslike

construction and

demolition debris.

In order to control this dust, BFI will

install a

misting

system within

the

building.

Note that the restriction ofall transferoperations to the interior of

the enclosed building further limits the amount

of

dust which could potentially travel

off-site.

C

Odor Control

Multiple design and operational features will be incorporated into the facility to

control and

eliminate the potential for odors.

AU vehicles utilizing the facility

must

be tarpeci until located

withinthe transferbuilding, minimizing thepotential forodors from traffic utilizing the facility.

All

exposed

waste

will be

located within the

transfer building

on

the tipping

floor,

which

minimizesthe potential for odors to be blown off-site:

All incoming

waste

will be transferred

or containerized

on the same

day

as

it is received, thereby minimizing odors by

moving the

waste before ithas time to become

particularly offensive.

The facility will also be emptied arid

swepton

a daily basis, eliminating the potential for any residual material which might generate

odors.

As an

added safeguard, BFJ will use an odor neutralization system

within the misting system,

In the event that incoming waste is particularly offensive, an odor neutralizer can be mixed

into

the water providing

the

mist.

As the mist contacts the waste, theneutr~Jizer

will counteract the

odor emanating from the waste.

The odorneutralizer will be non-toxic to protect

the

safety

of

employees

and visitors.

Noise Control

Since all waste tipping and transferring operations will be conducted in an enclosed buildicig,

no

increase in the levels of ambient noise are anticipated within the vicirfity of

the.

site.

The

noise

associated with

this type offacility is generally traffic related noise, and the location of

the transfer facility adjacent to North Avenue, an

airport and within an industrial area renders

the potential noises from the facility no moreoffensive than existing conditions.

Al! eqLJi~ment

utilized

for operations

will

be

equipped with

mufflers or other

sound dissipating

devices

required for compliance with 35111. Admin.

Code 901.101

through 901.103

and 901.121.

Fire Control aiid Prevention

Fire control and prevention at the DuKancTransfer facility willbe pravided by several features

within the building

design and operating plan.

Two exterior

fire hydrauts exist

aloflg the north

property line.

Additional firehydrants may also be developed as required.

The

i

au~fer

facility

building

will

be

equipped with

a

sprin~zlcr

sys~ernthat

is

designed

in

accordanc.e with

the

requirements of the National Fire

Protection Association (NFPA), BOCA,

and th~DuPage

County Buiidin~.Ordinance.

The sprinkler system will be connected to the 1oca~

watersupply.

The sprinkler system will be

activated by heat sensors within the building.

An alarm

system

will be installed to warn facility employees in the eventof a fire.

Thetelephone number forthe

fire department will be posted at all

phones located

in

the building.

The sprinkler syste~nand

ff:~OOIIClOOI)por1.~op,y1crnwpd

/2

DuKane Transfer Facility

-

Operating

Permit

January

1999

---

Accident Prevention

and

Safety

Accident preventidn and safety is a paramount concern, and BFI has taken several steps within

the design ofthe facility

and

the proposed operation to provide a safe facility to all emplOyees

and neighbors.

AU transfer facility personnel will receive training in the performance

oftheir

work duties,

in

the operation of equipment,

and

in facility operations.

The purpose of this

training will beto facilitate thesafe and ef’ficient operation ofthe ~ansfer facility and to prevent

potential

operational problems

from developing.

ifl addition, both

the facility design and the

plan of operations for the proposed DuKaneTransfer facility will help to minimize accidents,

as shown

in Table 2.4-5.

Design Features

Operating Procedures

•

Fire protection

and alarm

system

•

Training in

job performance, equipment

•

Site security system,

including fencing

around

operations,

and

facility

operations

perimeter of facility

•

Operatingprocedures to

limit the number of

a

Safety

signs

and

ixafflc signs

employees

and/or visitors

on the tipping floor

a

Dual scale system to facilitate traffic

a

Employee safety training

movcmcnt

•

Emergency

operating procedures

•

Curbing and pavement markings

throughout

•

Eniergcncy first

aid

u-aining

transfer faciUty yard

•

Training

in identification ofunauthorized

.

Dust

supprcssion system

materials

•

Oversized

tipping floor

•

Regular inspection of

fire

protection system

•

Parapct waJis

around loading bays

•

Coordination

with

emergency management

•

Active and passive building illumination

agencies

•

Floors sloped

to floordrain system

•

Equipment lockoutitagout procedures

•

Concrete-filled bollards to protectbuilding

•

Designated Emcrgcnc~’

Coordinator

corners from

traffic

.

s

Employee

radio

cornrnunic~tion

system

Phones

with

emergency numbers

posted

Lockout-Tagout Procedures

To

ensure

employee safety,

all

machinery or equipment capable of movement must be de-

energized or disengaged and

locked and tagged out

during cleaning, servicing,

adjusting or

setting up operations.

The program will physically lock or tag any defective equipment to

prevent accidental use by an uninformedemployee.

Any defectiveequipment will be rendered

inoperable (unplugged,

disconnected,

etc.) and tagged or locked.

Only authorized person~ie1

will be allowed to remove the locks and/or tags.

In

conjunction

with the locking

and tagging

procedures, a training

program will be implemented

to

ensure that

all

employees

recognize

when equipment has been removed from

service.

Personnel Training

Operating personnel

will

receive training

to

ensure that

the

equipment

is

operated

in

an

environmentally sound manner in accordancewith the provisions contained herein, the laws of

the State ofIllinois,

DuPage County, and the specific require.rnents

ofthe IEPA permit.

This

training is designedto supplement the accidentand fireprevention training by creatinginfonned

.~~OOI

!OOOJj1Repor~stop~ytwtwpd

14

DuKane Transfer Facility

-

Operating Permit

January

1999

TABLE

2.4-4.

SAFETY-ENHANCiNG DESIGN

AND OPE1~ATING

PROCEDURES

---

EquipmentFailure

As the transfer

facility

is not

a highly automated

system,

the only

possible equipment failures

could

be

with the wheel loader, collection vehicles

and transfer vehicles, or the scale.

The

facility will

be

operated

with

two

wheel

loaders,

ensuring

that

one

loader

is

available

to

complete the waste loading operations

in the event of a loader failure.

Additional

loaders can

be obtained from other BFI transfer facilities if necessary, or they can be rented from a local

equipment supplier.

Also, regular wear parts and replacement parts for the loader will be kept

on-site, in

the event that the breakdown is of a minor nature.

A

single vehicle failure

will

not

critically impact the facility’s operation,

since

all

facility

roadways are at least two lanes

wide,

and redundant loading bays are provided

at all

points

within the transfer operation.

Under a worst case scenario, a local tow truck may be contacted

• to pull a stalled vehicle out of the way of operations until

it can be repaired.

Sufficient area is

available at the site to

park a stalled

vehicle.

If a vehicle

is

decommissioned for repairs,

a

sufficient number of additional vehicles

service the facility to prevent any impact to the waste

transferoperations.

The facility will be equipped with two

70 foot long scales at the weigh station and

additional

scales

within the loading bays.

Four scales provide

more than enough system redundancy in

the event of a scale failure.

In the unlikely event that an equipment failure slows the speed of operations, incoming waste

vehicles

can be diverted to

other BFI facilities,

including the transfer facility in Meirose Park,

to

reduce the amount of waste arriving at

the

facility.

Interruption

of Utility Service

Should

electrical

service, water

service

or

telephone

service

be

interrupted

at

the facility,

provisions will be made to safely

continue operation or else operations will be temporarily

suspended until

service is restored.

If operations are

to be discontinued,

all incoming waste

vehicles

will be diverted

to

other

facilities,

and

the amount of waste remaining within the

building will be carefully-loaded

ind

transferred utilizing available.light-and resources.

By

safely emptying the building of the remaining waste, the potential for fire or other incident is

eliminated.

Alternate methods of emergency communication will be provided

if telephone

service

is

internipted.

Cellular

phones or two-way

radios

to

a dispatcher will be

used to

summon emergency assistance if the facility telephones are not operational.

H:~OO!IC~COIj1.Reporu~opplan.wpd

16

DuKane Transfer Faci!Uy

-

Operating Permit

Janua’y

1999