NOTICE OF FILINGTO: See Attached Service List
PROOF OF SERVICE
Legal Assistant
SERVICE LIST
Ottawa, IL 61350Phone: (815) 433-4705-
AMICUS BRIEF OF CONCERNED CITIZENS OF OGLE COUNTY
Phone: (815) 433-4705

RECEWEP

CLERK’S OFF~Cc

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FEB

200k

ROCILELLE WASTE DISPOSAL, L.L.C.,

)

Petitioner,

)

vs.

)

PCB 03-218

)

(Pollution Control Facility

CITY COUNCIL OF THE CITY OF

)

Siting Appeal)

ROCHELLE, ILLINOIS,

)

Respondent.

)

NOTICE

OF FILING

TO:

See Attached Service List

PLEASE

TAKE

NOTICE

that on February 6, 2004 there caused to be filed with the

Illinois Pollution Control Board an original and

9 copies of

the following document, a copy of

which is attached hereto:

AMICUS BRIEF OF CONCERNED CITIZENS OF OGLE COUNTY

MOTION FOR

LEAVE TO FILE AN AM~CUSCURI~4J~1EF

BY:_____

~Att~f~-iey

aytaw

* * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * ** * * * * * * * * * * * ** *

l~*

* * * ** * * ** ** * * * ** * * * * ** * **

STATE OF ILLINOIS

)

COUNTY OF LASALLE

)

The undersigned, being first

duly sworn, state that I served a true and correct copy

of the

foregoing Notice, together with a copy ofeach document referred to therein, upon the person(s)

indicated via e-mail and/or regular mail as indicated in the Service List on the 6th Day of

February, 2004.

()~~

SUBSCRIBED and

SWORN

2004.

GENIA

FOX

PROOF OF SERVICE

)SS.

Legal Assistant

GEORGEMUELLER, P.C.

Attorney at Law

501 State Street

Ottawa, IL 61350

Phone: (815) 433-4705

SERVICE LIST

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 W. Randolph St.

Chicago, IL 60601

Richard Porter, Esq.

Charles Heisten, Esq.

Hinshaw &

Culbertson

100 Park Avenue

Rocklord, IL 61101

E-mail:

rporter~liinshawlaw.coni

Bradley P. Halloran, Hearing Officer•

Illinois

Pollution Control Board

James R. Thompson Center, Suite 11-500

100 W. Randolph St.

Chicago,IL

60601

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735

Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

E-mail: mobrien~mjwpc.com

Alan Cooper, Esq.

Rochelle CityAttorney

400 May Mart Drive

P.O. Box

194

Rochelle,IL

61068

RECEF~FED

CLERK’S OFFICE

FEB

200Li

STATE OF ILLINOIS

ROCHELLE WASTE DISPOSAL, L.L.C.,

)

Pollution

Control Board

Petitioner,

)

vs.

)

PCB 03-218

)

(Pollution Control Facility

)

Siting Appeal)

)

MOTION FOR LEAVE TO FILE AN

AMICUS CURIAE BRIEF

Now comes the Concerned Citizens ofOgle County, (hereinafter “CCOC”), by and

through its attorney, George Mueller, P.C., and for its Motion For Leave To

File Amicus Curiae

Brief, states and alleges as follows:

That on June

19, 2003

the CCOC filed a Petition To Intervene in this matter, and on

June 30, 2003 Petitioner, Rochelle Waste Disposal, L.L.C., filed an Objection to said Petition.

The Board, in its July

10, 2003

Order, denied CCOC’s Petition To Intervene and further

indicated that the CCOC could participate in this matter either through statements at hearing,

public comments orthe filing ofan

Amicus

Curiae Brief

That, pursuant to Section

101.110(c), and in accordance with Section

101.628(c) of

the General Rules ofthe Illinois Pollution Control Board,

anAmicus Curiae Brief

can be filed in

any adjudicatory proceeding by any interested person, provided permission is granted by the

Board.

That the CCOC

is an interested party as set forth in Section 101.628(c) ofthe Board

Rules, and, accordingly, permission should be granted allowing it to file an

Amicus Curiae Brief

That in further support ofCCOC’s Motion For Leave To File

Amicus Curiae Brief

CCOC repeats, realleges, and incorporates each and every argument made in its previous Petition

To Intervene as if said arguments had been set forth in their entirety herein.

WHEREFORE,

the Concerned Citizens ofOgle County respectfully pray that the

Illinois Pollution Control Board grant their Motion thereby giving CCOC permission to file an

Amicus Curiae Brief

in this matter.

GEOR GEMUELLER, P.C.

Attorney

Law

_____________________

501 State Street

Ottawa, IL

61350

Phone:

(815) 433-4705-

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CITY COUNCIL OF THE CITY OF

ROCHELLE, ILLINOIS,

Respondent.

Respectfully Submitted,

Concerned Citizens of Ogle County,

BY:

~6At~e~~

RECE~VED

CLERK’S OFFICE

FEB

102004

STATE OF ILLINOIS

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAJUf’ollution Control Board

ROCHELLE WASTE DISPOSAL, L.L.C.,

)

Petitioner,

)

vs.

)

PCB 03-218

)

(Pollution Control Facility

CITY COUNCIL OF THE CITY OF

)

Siting Appeal)

ROCHELLE, ILLINOIS,

Respondent.

)

AMICUS BRIEF OF CONCERNED CITIZENS OF OGLE COUNTY

GEORGE MUELLER, P.C.

Attorney at Law

501 State St.

Ottawa, IL

61350

Phone: (815) 433-4705

INTRODUCTION

In 2000, Rochelle Waste Disposal, (hereinafter “RWD”), filed an

Application seeking local siting

approval for a vertical

and horizontal expansion ofits existing

landfill in Rochelle, Illinois.

Concerned

Citizens OfOgle County, (hereinafter “CCOC”), participated as an Objector atthe local siting hearing and,

the eve ofthe City

Council’s decision, RWD voluntarily withdrew

the Siting Application.

After

intense two-year lobbying and public relations campaign, RWD filed another Application for expansion

seeking a somewhat scaled back

version ofthe expansion sought

in 2000.

Once again, CCOC, which

had

also maintained a presence in the community between the withdrawal ofthe original Application and the

filing ofthe second Application, participated actively as an Objector.

As RWD has pointed out in its Brief, Counsel for the City ofRochelle recommended conditional

siting approval in the “staff’report to the City Council.

Moreover, RWDhas put the City Council on written

notice that its denial ofthe Siting Application constitutes

a material breach ofthe Host Agreement thereby

releasing

RWD

from

its

performance

obligations

regarding

closure,

post-closure

care,

and

potential

remediation ofthe existing facility.’

CCOC believes that as the only consistent opponent of-both RWD’s

siting attempts, its view in the form ofan Amicus Brief would be ofbenefit to this Board.

THE

SITING PROCEEDINGS WERE FUNDAMENTALLY FAIR

RWD

initially argues that the City Council’s denial of the

Siting Application was a politically

motivated,

legislative

decision rather than

an adjudicatory decision.

supports the argument with two

statements of City Council

members allegedly made to the

local newspaper immediately after the vote.

Interestingly,

neither council member

states that

he disregarded the evidence in order to conform

to the

overwhelming

public

opinion against the landfill

siting.

To the

extent that

a “no”

vote based

upon

the

evidence is also consistent with the expressed public will, the Aldermenwho correctlyperformed theirduty

‘The

RWIJ

Notice ofBreach to the City Council dated

_____,

2003

was included as

exhibit with

CCOC’s unsuccessful Petition To

Intervene in this matter.

is included here again as Appendix

for easy

reference by the Board.

are

also entitled

to claim their political reward.

The statements ofthese

two

City Council members to the

press are nothing more than that

and

do not overcome the presumption that they acted without bias

in their

adjudicatorycapacity.

E&E Hauling vs. Pollution Control Board,

115 il.App.3d 898,

451

N.E.2d 555

(2’~”

Dist.

1983).

See also ConcernedAdjoiningLandowners vs. Pollution Control Board, 288 Ill.App.3d

565,

680 N.E.2d 810

(June, 1997).

In further support ofits position that the siting decisionwas

legislative, RWD claims that the City

Council

did not “deliberate,” mistakenly confusing the concept ofpublic

debate with deliberation.

There

is no requirement anywhere that a City Council or County Board must debate a siting decision, and the fact

that this City Council did not publically debate does not justify the inference that the individual Council

members’

votes were not well thought out and deliberated.

Thirdly, RWD argues that the City Council’s decision was legislative becausethat decision rejected

the recommendations ofthe HearingOfficer and the City staff.

This is the opposite ofthetypical argument

that

City Council orCounty Board improperly relied on the biasedor incorrectrecommendationsofits staff

orconsultants.

In cases assessing those arguments, the Board has consistently held that such-reliance-is-not

error because a Board

is free to

reject the findings ofits consultants.

Sierra

Club,

et a!.

vs.

Will County

Board, et al., PCB 99-136 (August 5,

1999, Slip

Opinion at Page 12).

This

an important point because

RWD’s Brief, particularly

its discussion ofthe weight to be given to the testimony ofits hydrogeologist

and CCOC’s hydrogeologist,

incorrectly elevates the City staffs report and the Hearing Officer’s report to

the

level of definitive findings which ought to

be given some weight by the Board.

Without conceding that the City Council’s decision was in any way legislative (and the burden of

proof on

this

issue

lies

squarely

RWD),

is clear

that

legislatively

based

denial of the

Siting

Application

is authorized by existing Illinois

law.

“A local governing body mayfind the applicant has met

the

statutory

criteria

and

properly

deny

the

application

based

upon

legislative

type

considerations.”

Southwest Energy Corp.

vs. Pollution

Control Board, 275 il.App.3d 84,

655 N.E.2d 304

(41h

Dist.

1995).

While RWD acknowledges

Sout

hwest Energy,

it incorrectlyargues that authority on the issue is split, citing

Industrial Fuels and Resources vs. Pollution Control Board,

227 Ill.App. 3d 533, 592 N.E. 2d 148 (1” Dist.

1992).

In fact,

Southwest Energy

post-dated

Industrial Fuels,

and the standard announced therein has been

followed without criticism

by the Board and Appellate Courts

in other Districts.

Land & Lakes Company

vs. PCB,

309 Ill.App.3d 41,

743 NE.2d 188

(3r~~

Dist.

2000).

“A local

siting authority’s role

in the siting

approval process is both quasi-legislative and quasi-adjudicative.”

(Seealso Waste ManagementofIllinois

vs. Kane County Board, PCB 03-1 04

(June 19,

2003)).

RWD argues for a change in the law, suggesting that our Supreme Court’s recent ruling in

People

ex.

rel. Klaeren vs.

VillageofLisle, 202 IL2d 164,

781 NE.2d 223 (2002),

can be interpreted as standing for

the

proposition

that

hearings

involving

property

rights

of interested

parties

should

classified

administrative or quasi-judicial and not legislative.

RWD’s reliance on

Kiaren

is misplaced because the

Supreme Court was very careful to restrict its holding only to proceedings regarding the issuance ofspecial

use

permits.

The Supreme Court left undisturbed the principle that

municipal

bodies act in

a legislative

capacity when they conduct zoning hearings, citing with approval the holding in

LaSalleNationalBank of

Chicago vs. CountyofCook, 12 IL2d40, 145NE.2d 65(1957),

that “it is well established that it is primarily

the province ofthe municipal body to determine the use and purposeto which property may be devoted...”

Moreover, the purpose ofthe Supreme Court’s consideration in

Klaeren

was to determine whetheror not a

proceeding

was adjudicatory or legislative

in the

context ofwhether

minimal due process requirements

attached to the hearing.

The Court was not asked to, nor did it consider, whether a proceeding could have

both quasi-adjudicatory and quasi-legislative characteristics as

Section

39.2 siting proceedings have.

The position ofRWD that a siting proceeding should be strictly adjudicatory and not legislative

inconsistent with its position at the local siting hearing.

Applicant’scounselargued in his opening statement

that the facility will bring $120,000,000 in direct economic benefitsto the community.

(TR. 2-24, Page

20)2

He also presented a Trial Briefarguing that economic benefits are a legislative type consideration which

should be received by the City Council.

(TR.

2-26, Page

114).

All references to the transcript will be only to the local siting hearing transcript, and will be by date and

page number.

In fact, the very language of Section 39.2 ofthe Act

(415 ILCS 5/39.2)

suggests that the drafters

intended CityCouncils and County Boardswith siting jurisdiction to exercise some legislative discretion in

passing

on siting applications.

After listing the substantive siting criteriawhich an applicant must prove

order to

receive siting

approval,

Section

39.2

states,

“The

County Board

or the

governing

body of the

municipality mayalso consideras evidence the previous operating experience-andpast record ofconvictions

or admissions ofviolations ofthe applicant (and any subsidiary or parent corporation) in the field ofsolid

waste management when considering criteria(ii) and (v) under this Section.”

To the extent that the local

decision-maker is not required to, but may consider such evidence, the process changes from adjudicatory

fact-finding to legislative policy making.

Consider for example, an application on

a greenfield site where

opponents do not challenge the soundness ofthe design or geologic conditions, but rather prove that

the

applicant has constructed and operated sites at other locations in an unsafe manner.

Section 39.2(a) clearly

contemplates that a decision-makerin such a situation would be free to reject an application even in light of

uncontradicted evidence on the

substantive siting criteria.

This becomes particularly relevant in this case

where RWD has a deplorable operating record atthe existing facility, and CCOC has arguedthat this record

a compelling

basis

disbelieve

RWD’s

claims regarding

hydrogeologic

conditions

the

proposed

expansion site.3

RWD

next argues that the proceedings were fundamentally unfair because of improper ex parte

contacts.

Acknowledging that

there is

evidence that these contacts

and attempted

contacts actually

influenced anyone’s decision, RWD instead urges a change in existing law to require reversalwhen ex parte

contacts by an affiliate or representative ofa party create

an appearance ofimpropriety without an actual

showing ofprejudice.

RWD argues that proofofprejudice presents an impossible burden becauseit cannot

inquire into the minds ofthe decision-makers.

The factual centerpiece forthese arguments is the attempt of

Frank Beardin, an officer ofCCOC, to give video tapes ofa dramatic television

show to some of the City

~ RWD’s

operating record with

specific citations to the

hearing transcript

will be discussed in detail in the

Section ofthis Briefdealing with whether the City Council’s decision on criterion

ii was againstthe manifest weight

ofthe evidence.

Council members during the hearings.4

Beside

th-e

obvious

fact that the

Board

required to

existing Appellate

case

law,

to the

contrary RWD’s argument is

not well taken because it incorrectlypresumes that the parties in a Section

39.2

siting proceeding are entitled to the same procedural and substantive clue process safeguards as they would

receive in

a trial. A local siting authority is not held to the same standard ofimpartiality as ajudge.

Land &

Lakes Company vs. PCB, 309 iI.App.3d 41,

743 N.E.2d 188

(3r~~

Dist.

2000).

The participants in the landfill

expansion application could insist that the procedures comport with standards offundamental fairness, but

they are not entitled to the constitutional due process elements ofa

fair trial.

Tate vs. illinois Pollution

Control Board, 188 Ill.App. 3d994, 544 N.E.2d 1176(4th Dist.

1989).

Fundamental fairness incorporates and

requires

only

“minimal”

standards of procedural

due

process.

Daley vs.

Pollution Control Board,

264

Ill.App.3d 968,

637 N.E.2d 1153

(1994).

Even

People ex. rel. Klaeren vs.

Village ofLisle

holds that the

full

array ofdue process protections are not necessarily available to participants in quasi-iudicial proceedings.

Although

RWD d6es not claim that CCOC

engaged in

any

parte contacts which were actually

prejudicial, its inference that the ex parte contacts during thependency oftheApplication were entirely one-

sided is not justified by the record.

CCOC,

in fact, filed a pre-hearing Motion complaining ofRWD’s paid

newspaperadvertising duringthependencyofthe Application,touting the economicbenefits ofthe expansion.

(TR.

2-24, Page

16).

addition, CCOC

complained ofthe Applicant maintaining an Internet web page

describing

the

expansion

and

outlining

its

proposed

economic

benefits

during

the

pendency

the

proceedings.

(TR. 2-24, Pages 13,

14). Whether ornot these electronic and print contacts with the decision-

makers, although not directly addressed to them, constituted ex parte contacts

is probably not as relevant at

this point asthe factthat thesecontacts illustrate that

RWD

was a majorcontributor in creating the “political”

atmosphere which it complains of in

its Brief.

~ RWD’s

argument that showing prejudice presents an impossible

burden

because it cannot inquire into

the decision

making

process is inappropriate in that the City Council members who were approached by Mr.

Beardin all testified that they did not watch the

TouchedBy An Angel

episode.

TIlE

DECISION OF THE CITY COUNCIL ON

THE SUBSTANTIVE

SITING

CRITERIA

WAS NOT AGAINST

THE MANIFEST

WEIGHT OF

THE

EVIDENCE.

STANDARD

REVIEW

AND OVERVIEW

It has

long been established that the decision of the local

siting authority

a landfill

siting appeal

should not

be overruled unless it is against the manifest weightofthe evidence.

McLean County Disposal,

Inc. vs. CountyofMcLean, 207 Ill.App.3d 477, 566NE.2d 26

(4th

Dist.

1991).

The Pollution Control Board,

in reviewing the factual findings of the

local decision-maker, is not to reweigh the evidence or make new

credibility determinations.

WasteManagement ofillinois, Inc. vs. Pollution Control Board,

160 il.App.3d

434,

513 NE.2d 592 (2’~

Dist.

1987).

The determination of whether a proposed facility is so designed,

located, and proposed to be operatedthat the public health, safety, and welfare will be protected is purely a

matter

of assessing the

credibility

of expert

witnesses.

Fairview Area

Citizens

Task Force

vs. illinois

Pollution Control Board,

198 ill.App. 3d541, 555 N.E. 2d 1178 (3” Dist.

1990).

File vs. D& L Landfill, Inc.,

219 Ill.App.3d 897, 579 NE.2d 1228

(5th

Dist.

1991).

It is not the duty ofthe Board to reweigh the evidence,

to judgethe credibility ofthewitnesses, or to substitute its opinion forthat

of the local decision-maker.

The

Appellate Court decision in

FairviewArea Citizens TaskForce

can fairlybe read as mandating that ifthere

is any evidence to support the local siting authority’s decision, that decision must stand.

The

fact that a different decision might be

reasonable

insufficient

for reversal.

The opposite

conclusion must be clear and indisputable.

WillowbrookMotel vs. Pollution Control Board,

135 Ill.App. 3d

343,

41 N.E.2d 1032

(P’ Dist.

1985).

RWD

relies on

Industrial Fuels and Resources vs. Pollution Board,

227 Ill.App. 3d 533, 592 N.E.2d

148

(hi

Dist.

1992)

forthe proposition that if the

conclusions ofthe Applicant’s expert witnesses

are not

contradicted or directly rebutted, the decision-maker

is not

free to reject those conclusions.

This case

is,

however, not like

Industrial Fuels

which the Appellate

Court described

as “not a case in which there is a

conflict

the. evidence

any

material

issue

of fact.”

Instead,

in this

case, there

extensive

cross-

examination exposing weaknesses and inconsistencies inthetestimony ofthe Applicant’s witnesses,and,with

regard

criterion

ii,

opposing

witness

who points out

weaknesses

and

disagreements

with

the

Applicant’s case and who opines that the evidence

insufficient to support the

Applicant’s conclusions.

RWD’s Briefmakes repeated mention ofthe fact that CCOC’shydrogeologist, Charles Norris, does not offer

an ultimate opinion on criterion

ii, but RWD’s Briefcites no authority in support ofthe proposition that such

an opinion is required in order for the decision-maker to reject the conclusions of the Applicant.

This case

is,

in fact, more like

CDT Landfill Corporation

vs. City ofJoliet, PCB 98-60 .(March 5,

1998).

In that

case, like

here, the City Council rejected the recommendations of

its

consultant

voting

againstthe Application, and the Board correctly observed that a consultant report or staff recommendation

is not binding on the decision-maker.

Hediger vs. D & L Landfill, Inc., PCB 90-163

(December 20,

1990).

CDTLandfill Corporation,

there was no evidencepresented contradicting any ofthe Applicant’s experts.

Nonetheless,

the

Board

found

that

the

City

could

find

such

uncontradicted

testimony

deficient

and,

accordingly, the Board found that

the City’s decision rejecting the Application on criteria

i and

iii was not

against the

manifest

weight of the evidence.

This

is particularly relevant here

because CCOC’s

cross-

examination ofseveral oftheApplicant’s witnesses, including those on criteria i, ii, and iii, revealed serious

and disturbing data manipulation, data inconsistencies, and outright errors.

These factors coupled with the

Applicant’s troubling

operating record atthe existing facility provide acompelling basis for the CityCouncil

lose

confidence

the

conclusions

these

compromised

witnesses

regardless

of their

apparent

“qualifications.”

THE CITY

COUNCIL’S

FINDING THAT THE APPLICANT

HAD NOT PROVEN NEED

IS NOT AGAINST

THE MANIFEST

WEIGHT OF TILE

EVIDENCE.

The

evidence ofneed in this case demonstrates the kind ofmathematical manipulation which is so

unrealistic that the City should feel to draw the conclusion that is there is no need for the proposed facility.

RWD’s

Briefemphasizes the credentials and qualifications ofits witnesses in

an apparent attempt to create

the impression that disagreement by the City Councilwith witnesses of such highcaliberandobvious ability

is unreasonable.

In fact, Sheryl Smith does essentially the samereport in every need assessment project she

works on.

She looks atwaste generation

in the service area,

multiplies that amount by the number ofyears

-7

the Host Agreement requires the Applicant to provide disposal capacity to the Host community, and divides

thistotal into the capacitycurrently existingandavailable-to-the-service area.

13 out of 13 occasions when

she has performed this analysis, she found that a need existed.

(TR.

2-25,

Page

45).

This is not surprising

since by including metropolitan Chicagoland in the service area andexcluding those counties where there is

substantial sited

capacity,

one can-always

guarantee the outcome of this computation.

Such a simplistic

analysis would seem to make it irrelevant that the existing Rochelle Landfill actuallyhas more than 20 years

remaining capacity for waste generated in the City of Rochelle.

(TR. 2-25, Page 66).

Similarly, it would be

irrelevant that the

Livingston

Landfill,

by itself, has

annual

disposal capacity almost equal to

the

waste

generated in the Applicant’s entire service area.

(TR. 2-25, Page

101).

The

foregoing

notwithstanding, Ms.

Smith

was

still required

to make

some totally

unrealistic

assumptions

in order to

validate

her conclusion.

These

assumptions are,

in fact,

so unrealistic that they

warrant the City Council finding that her credibility

is undermined.

For example, Ms. Smith

assumed that

of the 123,000,000 tons of waste requiring disposal

in the service area over the projected life ofthe facility,

none ofthat would be recycled.

This condition of zero recycling, however, does not exist anywhere

in the

service area andOgle County, where the City ofRochelle

is located, actuallyrecycled at arate of30

in the

last year, a rate

in excess of its recycling goal.

(TR. 2-25, Page

57,

101).

Additionally, Ms.

Smith

assumed that no additional capacity would ever be available for the disposal

needs ofthe service area other

than the capacity currently permitted.

(TR.

2-25,

Page 72).

Accordingly, she assumed that the

14,000.000

ton

capacity of the

Will

County Landfill

and the

capacity of the

South Streator

expansion would not

available to the service area eventhough both facilities have final siting approval.

(TR. 2-25, Pages 97, 98).

the case of Spoon

Ridge, a permitted landfill

with

39,000,000 tons

of available capacity,

Ms.

Smith

assumed that would not be available.

(TR.

2-25,

Pages 98, 99).

All RWD can say by way ofresponse in its

Brief isthat the Hearing Officer’s report agreed with Ms. Smith that it is appropriateto assume zero capacity

increases in calculating need.

The Hearing Officer’s report is not evidence and is not even persuasive,

creates no presumptions and has no precedential value.

Ms. Smith’s report andtestimony was also fraught

with errors which substantially undermined her credibility.

She understated the projected waste receipts at

the

proposed facility

500 tons

per day as

early as

2005.

(TR.

2-25,

Pages

59, 60).

Her conclusions

regarding the origins of the historical waste stream to the facility were not verified by her data.

(TR. 2-25,

Page

69).

Her conclusion that the expansion would provide economic benefitsto local haulers

in Rochelle

erroneously assumedthat 100

ofthe waste generated in the service area originated in Rochelle.

(TR. 2-25,

Pages 74,

75),5

Actually, Ms. Smith did not know the dimensions of,

or the center of

the proposed service

area.

(TR. 2-25, Page 88).

Ms.

Smith’s report erroneously stated that the Will County facility would be

restricted -to waste

from within that County, but she admitted on cross-examination that the facility would

actually be allowed to take waste

from municipalities in neighboring communities which are contiguous to

Will

County.

(TR. 2-25, Page 96).

Ms. Smith did an analysis ofdrivingdistances andcosts from Rocheileto other facilities in the service

area.

Counsel for CCOC was able to demonstrate, through cross-examination and with CCOC Exhibits 1,2,

3, and 4, that she over estimated hauling costs to these alternate facilities by over estimating and overstating

the distance to the four most nearby facilities.

(TR. 2-25, Pages 105-112, CCOC Exhibits

3, 4).

light of the

foregoing

inconsistencies, errors and totally unrealistic

assumptions,

Ms.

Smith’s

testimony

is not persuasive, and the decision ofthe City Council rejecting her conclusions

is not against the

manifestweight ofthe evidence.

THE

CITY COUNCIL’S

FINDING THAT

THE

FACILITY IS NOT SO DESIGNED.

LOCATED AND PROPOSED TO BE OPERATED THAT

THE

PUBLIC HEALTH,

SAFETY AND

WELFARE WILL BE PROTECTED IS NOT AGAINST THE

MANIFEST WEIGHT OF

THE EVIDENCE

This is the criterion on which there was direct conflicting-evidence, the testimony ofSteve Stanford,

ahydrogeologist forRWD, andthe testimony ofCharles Norris,the hydrogeologist forCCOC.

To the extent

that the City Council weighed this conflicting testimony andchose to credit Mr. Norris and notMr. Stanford,

the Board’sjob in reviewing the City Council’s

decision on this criterion should be over.

The fact that the

~ Ms. Smith opined that she relied on the economic benefit analysis to support her conclusion

that need existed, but also admitted that economic benefit is not one of the Section

39.2 siting criteria.

(TR. 2-25, Page 81).

Hearing Officer may have weighed the testimony differently in his report is irrelevant.

RWD’s Brief with

seven pages devoted to acritique of Mr. Norris’ testimony is clearly an improper attempt to have the Board

reweigh the credibility of these two witnesses.

The foregoing notwithstanding, the testimony of Mr. Stanfordwas not credible, andthe testimony of

Mr. Norris

was

fatally damaging to the Application.

RWD’s Brief mentions at

least twice Mr. Stanford’s

conclusion that the proposed site was the best location he had ever seen from ahydrogeologic

perspective.

This bit of hyperbole by the witness

is central to how he undermined his own credibility.

The Application withdrawn

by RWD in 2000

was full of errors and inconsistencies, and one would

think that in the ensuing two years prior to asecond Applicationbeingfiled, RWD would have gotten its facts

and figures

straight.

That

is not the

case.

Additionally,

RWD’s

assumptions and interpretations

were

decidedly non-conservative.

Mr. Stanford, in his cross-sections, minimized the amount ofsand

located underneath the proposed

site.

Sand bodies in his cross-sections were often depicted as being ofdiamond shape with the thickest portion

encounteredat the boring, andthe sand body pinching out immediately on

either side ofthe boring.

This was

true

even

when

sand was

identified

similar or

identical elevations

adjacent borings

where correct

geologic practice would have been to interpret the same as continuous between the two borings.

Examples

ofthis can be found atBoringsG-4 1, R-1 07, G-1 22,EB-3 1, EB-33, EB-35, EB-32, andRL-8. (TR. 3-3,Pages

159-162, 191,216).

In an equally startling display of intentionally minimizingnegative features, Mr. Stanford classified

observation wells with virtually identical elevations and identical depths into Bedrock as being in different

geologic units based solely upon the permeability determined in slug testing ofthose wells. Examples would

be Wells G-34-D andG-106-D.

(TR. 3-3, Pages 208, 209).

Similarly, Well G-24-D, whose, sand pack is only

4-1/2 feetbelowthe top ofBedrock, is classified as being in the lower Dolomite, otherwise defined as the area

below the top

10 feet of the Bedrock.

(TR. 3-3, Page 212).

As another example, the tested interval of Well

G-68-1 hydrogeologically behaves like an aquifer,the material is geologically classified like the tight Tiskilwa

Till which Mr. Stanford relieson

as an impermeable barrier between the bottom of the liner and uppermost

aquifer,

but

yet

the

high

permeability

results

from

this

well

are

not

included

assessing

the

overall

permeability of the Tiskilwa Till.

(TR. 3-3, Page 167).

As afurther example of Mr. Stanford’s intentionally

under estimating the

permeability of the

Tiskilwa Till, Mr. Norris

pointed

out that

the slug tests

(which

measure field permeability) conducted

in the Tiskilwa Till for the 2003 Application are almost an order of

magnitude

(10

times)

lower

permeability

than

those

reported

the

2000

Application,

but

that this

difference

is not apparent in slug tests measuring the permeabilityof the uppermost aquifer.

(TR. 3-4, Page

107).

During the hearings, therewas significantcontroversyabout the elevation andextentofthe uppermost

aquifer, how it relatedto the Dolomite Bedrock,,and howthis aquifer interacted with the underlying St. Peter

Sandstone aquifer which serves the nearby Creston municipal water wells.

Mr. Stanford’s

gross

inability to

even identify and classify the top ofBedrock renders his conclusion about the quality ofthe geologic setting

completely meaningless.

Mr. Stanford showed the Bedrock to the east of Boring G-68-I as rising when the

next well or control point in that direction actually had a lower top of Bedrock.

(TR.

3-3, Page

164).

Cross-Section K-K’, Mr. Stanford depicted Boring EB-3

1 as encountering Bedrock when the actual boring

log showed that

it did

not.

(TR. 3-3, Page 190, App. Page 2158).

Also on Cross-Section K-K’ Mr.

Stanford

depicts

40 feet of Bedrock encountered in Boring EB-35.

However,

on Cross-Section C-C’, he depicts the

same boring as having over 60 feet of Bedrock. He explains thisanomalyas being “for illustrative purposes.”

(TR. 3-3, Page 192, App. Pages 2151,2158).

BoringEB-33 is depicted in the cross-sections as encountering

silty clay, but in the boring logs is shown as actually encountering Bedrock.

(TR. 3-3, Pages214,215).

This

anomaly is described by Mr. Stanford as a“tracking error.”

On Cross-Section K-K’, Boring EB-33

is shown

as ending in St. Peter Sandstone, yet no rock was recovered for classification purposes from thisboring.

(TR.

3-3, Page 2 1,8, App. Page 2158).

According to the boring log, G-104-I did not hit Bedrock, yet Table 2 in his

report showed it as

encountering Bedrock several feet belowthe actual termination of the boring.

(TR. 3-3,

Page

221).

-This

was

conceded by

Mr.

Stanford to

“an

error.”

Boring

G-109

Cross-Section J-J

terminates atElevation 750, butthe boring log shows it as terminating atElevation 771.

(TR. 3-3, Page 239).

This was characterized by Mr. Stanford as a “drafting error.”

Critical

the

assessment

of the

potential

performance

of the

landfill

understanding

groundwater flow.

This is assessed by developing potentiometric

surface maps for the various water units

encountered under the site.

Mr. Stanford’s efforts here were no better than in the Bedrock.

First of all, Mr.

Stanforddid not include in his potentiometric surface maps the leachate heads ofwells in the existingfacility.

(TR.

3-3,

Pages

197,

198).

The

potentiometric

surface map of the

water table,

when

compared to

the

topography of the

site,

actually shows a portion of the site

being under standing water.

Mr.

Stanford

described this as a “contouring artifact.”

(TR. 3-3, Page 213).

The heads (water levels)

from Well R-107,

a monitoring well for the existing facility although depicted on Cross-Section J-J’, are not even included in

the potentiometric surface maps.

(TR.

3-3, Page

194, App.

Page 2157).

Mr. Norris was troubled by the

omission of this “critical well.”

(TR. 3-4, Page

111).

Although Mr. Stanford discounted the importance of

the potentiometric surface map of the uppermost aquifer, that map shows groundwaterat the north endofthe

site

moving against the known regional

flow direction and actually leaving the site

in the direction of the

Creston municipal wells.

(TR. 3-4, Pages

158-160).

apparent concession

of the

fact

that

Mr.

Stanford’s

groundwater

impact

assessment

was

seriously flawed, RWD argues in its Brief that agroundwater impactassessment (GIA) is not even required

in a siting hearing.

That notwithstanding, ifa GIA is presented, its accuracy and believability becomes an

important consideration in assessingthe credibility ofthe witnesses.

Mr. Stanford acknowledged that he did

not even

use the

site

specific permeability data in performing the

GIA.

(TR.

3-3, Pages

151-153).

Mr.

Stanford acknowledged that the applicable groundwater standard (AGQS) for ammonia is

.390, andthat the

predicted concentration of ammonia at his point of compliance in

the GIA is .385, barely

under the limit.

However,

he assumed a starting concentration of ammonia of zero, when

in fact the known background

concentration at the site is

.243.

This would lead to a final concentration when one adds the contribution

from leachate to the known background concentration of .628.

(TR. 3-3, Pages

154-15 8).

Mr. Norris, on

behalf of CCOC, made the same

observation

and pointed out that with regard

to ammonia, the AGQS

exceeded in the GIA.

(TR. 3-4, Page 55).

Nonetheless, Mr.

Stanfordcontinued to insist that the GIA did not

fail.

Mr. Norris furtherpointed out that since the GIA did not incorporate known site specific permeabilities,

the GIA was, by ignoring this data,

able to eliminate

ofthe known flow underneath the site.

(TR. 3-4,

Pages 59-6 1).

RWD dismisses Mr. Norris as biased and characterizes his extensive criticisms ofthe Application’s

data interpretation as trivial.

Describing Mr. Norris

as “puffing” regarding his credentials, RWD points out

that he has

only been a licensed-geologist

for a few

years, but RWD

fails to point out that

the licensing

requirement has only existed

in Illinois for a few years.

In fact, Mr.

Norris

is licensed

in multiple states; he

has over 30 years of experience in the area; he is apastPresident of the Colorado Groundwater Association,

and he was fora numberof years the Manager of the Industrial Relations Consortium ofthe’ Laboratory for

Supercomputing in Hydrogeology at the University of Illinois.

(TR. 3-4, Pages 36, 37, 39, 40).

Mr. Norris

pointed out that he limited his testimony, particularly with regard to the migration of contaminants from the

existing facility due to the fact that the Applicant had not included all ofthe required documents previously

filed with the Environmental Protection Agency.

(TR, 3-4, Pages

45~50).6

Mr. Norris confirmed that RWD’s groundwater impact assessmentdid not model the site conditions

accurately.

(TR. 3-4, Page 66).

He also pointed out that Mr. Stanford’s introducing a continuous sand layer

into the model, which he claimed to be avery conservative

assumption,

actuallyhad the opposite effect in that

the sand layer in the model was configured in such a way as to introduce horizontal flow from outside the

facility boundaries in order to dilute anycontaminantsthat would passthrough the sand layer.

(TR. 3-4, Page

63).

Mr. Norris emphasized that RWD’s conclusions regarding the abilities ofthe Tiskilwa Till to act as

a barrier between the bottom of the landfill and the

uppermost aquifer are totally unwarranted and, in fact,

contradicted by the site specific data.

He pointed out that contamination leaving the existing facility in the

form ofeither gas or leachate and observed in ‘Monitoring Well

R-107 proves that there are rapid flow paths

through

the Tiskilwa Till.

(TR. 3-4, Pages 74-76).

These impacts in Well

R-107 indicate the presence of

preferred pathways for migration

in the

Tiskilwa Till,

thereby undermining

its

ability

act

as a major

Section 39.2(c) of the Act requires that a siting application shall include “all documents, if any,

submitted as ofthat date to the Agency pertaining to the proposed facility

...“

component that

enhances the

public health,

safety and welfare.

(TR.

3-4, Pages

77-78).

Mr. Norris also

observed that hydrographs for numerous wells atthe site with similar amplitude of seasonal head variations

at differentdepths demonstrate that there is an extensive fracture flow network in the Tiskilwa Till, allowing

rapid

movement of water through that

Till.

(TR.

3-4,

Pages

8 1-83).

He, also pointed

out that the

sand

observed in the Tiskilwa Till, contrary to the interpretation ofMr. Stanford, is highly connected.

(TR. 3-4,

Pages 89-90).

Lastly,

he noted that the declining vertical gradients as one moves

downward through the

Tiskiiwa Till toward the top of Bedrock absolutely contradict the Applicant’s interpretation ofthe Tiskilwa

Till as tight and massive.

(TR. 3-4, Pages

9 1-95).

Mr. Norris was also disturbedby the numerous errors, inconsistencies, and data manipulations in the

Application and Mr.

Stanford’s testimony.

He pointed-outthat monitoring well head data contained in the

Application is inconsistent with data from the same monitoring wells on file with the IEPA.

(TR. 3-4, Pages

99-100).

He was troubled by the differing and contradictory interpretations of the same

data points in the

east/west and the north/south cross-sections.

(TR. 3-4, Page 101).

Although RWD’s Brief describes Mr. Norris’ criticisms of the Application as “trivial,” Mr. Norris

was deeply troubled by the fact that the Application and Mr.

Stanfor,d have failed

to correctly identify and

describe the uppermost aquifer immediately under the site.

He pointed out that Mr. Stanford has chosen the

wrong well heads (water levels) to draw his potentiometric map of the uppermost aquifer, and that this error

is propagated to the design ofthe groundwater monitoring system.

(TR. 3-4, Page

112).

He referredto these

as critical data irregularities and observedthat ifthe uppermost aquifer hadbeen correctly mapped, it would

show a clear flow path in the direction of the Creston municipal water wells.

(TR. 3-4, Page

103-lOS).

The significance ofthe foregoingis that Mr. Norris identified anearbymunicipal water supply which

is at immediate risk of contamination from landfill leachate releases.

‘On cross-examination, he performed

some calculations

assess this risk.

He first of all pointed out that

despite the Applicant’s claim of an

impermeable Tiskilwa Till, water will travel from the ground surface at the site to the uppermost aquifer in

less than 50 years.

(TR. 3-4, Page 154).

He also calculated that water will travel from the uppermost aquifer

into the regional

St. Peter Sandstone

aquifer in 3.8

years.

(TR. 3-4,

Pages

173-175).

concluded

computing that water will travel

from the ground surface at the site to the Creston

municipal wells

169

years.

(TR. 3-4, Pages 183,

184,

186-187).

CCOC was, and

is, very critical of the Applicant’s handling of the groundwater interceptor trench

between existing Units

1 and 2,

described by the Applicant and its witnesses

as a French Drain designed to

trap and divert contamination from Unit

before

it impacts Unit 2 of the existing facility.

RWD’s

Brief

misses the point by arguing that Unit

1 is apre-SubtitleD Landfill, andtherefore contamination from the same

is not surprising.

The real

issue is that RWD’s actions

with regard to the groundwater interceptor trench

demonstrate a callous

disregard

for the

groundwater

contamination

leaving

the

existing landfill

and a

conscious decision to avoid addressing a serious existing problem.

Mr. Norris observed that the groundwater interceptor trench, an engineered underground gravel layer,

is,

fact,

a French

Drain installed and designed

to trap

and extract any contamination releases into the

groundwater from Unit

(TR. 3-4, Page

69).

Data reported to the IEPA verify

that groundwater in the

interceptor trench is impacted with organics andchlorinated compounds. (TR. 3-4, Pages 72-73). Mr. Zinnen,

the Applicant’s designengineer, confirmed that

while water in the interceptortrench would appropriately be

considered as

leachate. (TR. 2-25, Page 192).

Even though Mr. Zinnen has been involved with the existing

facilityfor 10 years, he did not know the

volume ofcontaminated water moving through the interceptor trench

and did

not know

if that

water was

even being analyzed

anymore.

(TR. 2-25, Pages

189,

192).

Clyde

Gelderlous, the person

in charge of daily operations at the existing facility, did not know anythingabout the

groundwater interceptortrench other thanwater was no longer beingpumped from the same.

(TR. 2-26,Pages

60, 61).

Tom Hilbert, the Vice-President ofEngineering for Winnebago Reclamation, one of the co-owners

ofRWD,

indicated that they do not keep a record of how much

leachate is generated in Unit

1, the unlined

disposal area. (TR. 2-26,Page 124). He recalledthat the groundwater interceptortrench was installed in 1995

1996 and was pumped for a year with the extracted groundwater discharged into a sedimentation basin.

When RWDrealizedthat thiswater was too impacted to discharge into the waters ofthe State ofIllinois,they

stopped pumping the trench altogether.

Monitoring shows the groundwater in the

interceptortrench

is still

contaminated, andMr. Hilbert indicated that whiletheyhaveconsidered, andare still considering,de-watering

the trench, they have not done so in approximately 6 years.

(TR. 2-26,

Pages

127-130).

The sum

and substance of the

foregoing

is that

Unit 3, the

groundwater interceptor trench, was,

installed for the sole purposeofidentifying and removing groundwater contaminated by Unit 1.

When RWD

realizedthat this groundwater which they had been improperly discharging into a storm water run-off pond-

was, in fact, contaminated,

they simply walked away from the problem.

The foregoing attitude of intentionally turning one’s back on serious operational and environmental

problems

is consistent with RWD’s operational history atthe existing site.

The most striking aspect ofthat

operational history is RWD’s continuous, andsometimes confrontational,refusal to acknowledge andaddress

problems.

Mr. Gelderlous

admitted that while

he was operating the facility between

1991

and

1996, he

received 5 administrativecitations which he appealed in every caseto-the Pollution Control Boardand, in one

case to the Appellate Court despite the fact that

each citation carried only a $500 fine.

(TR. 2-26, Pages 67-

69).

When shown the Board’s decision finding him responsible for the violations set forth

in PCB case: 92-

64, Mr. Gelderlous still denied responsibility.

(TR. 2-26, Page 70).

Similarly, when confronted with CCOC

ExhibitS, an inspection report indicating that aspecial waste stream was mostlywater, Mr. Gelderlous denied

that this

had occurred.

(TR. 2-26, Page

52).

He also denied that the inspection report’s reference to the

operator’s failure to cover exhumed waste was aproblem.

(TR. 2-26, Page 52).

Mr. Hilbert, who has been involved with the facility since the mid-90’s, pointed out that there have

only been 5 notices ofviolations and 2 administrativewarnings since 1995.

(TR. 2-26, Page 98).

However,

in 41

inspections between February,

1999 and November, 2001, deficiencies were noted

35 occasions.

(CCOC Exhibit 8).

Mr. Hubert dismissed these as pending notices, meaning problemspreviously identified

which had not yet been corrected.

(TR. 2-26, Page 139).

ViolationsMr. Flilbert admitted did include oneon

November

1, 1999 for leachate flows entering the waters ofthe State.

(TR. 2-26, Page 136).

In addition to refusing to admit

responsibility for violations,

RWD has demonstrated a pattern of

severely late responses to IEPA directives.

Mr. Gelderlous could not recall whether it might have taken as

long as 6 years from the date ofthe initial mandate forRWD to install arequired gas management system at

the existing facility.

(TR.

2-26, Page

59).

The facility was

first cited for

lack of compliance

with

gas

monitoring directives on July 31, 1996.

(TR. 2-26, Page

131).

Mr. Hubert acknowledged that deficiencies

related to the gas monitoring system were noted

10 more times in inspections overthe next 3 years. (TR. 2-

26,

Pages

135,

136).

Lastly, the IEPA directed RWD to

initiate

closure on Unit

in 2000, and informed

RWD

in writing that this closure should have been completed by July 28, 2000.

(CCOC Exhibit 9).

As of

the date ofMr. Hubert’stestimony on February 26, 2003, the closure ofUnit 1 was still not completed.

(TR.

2-26, Page

143).

Given the foregoingpattern ofconduct, RWD

properly characterized as a non-compliant party and

litigious operator who would not be proactive in

ensuringenvironmental safety.

The see- no-evil approach

demonstrated in RWD’s approach to the groundwater interceptortrench should, alone, be sufficient to justify

the City Council in finding that the facility is not so designed, located, and proposed

to- be operated as to

protect the public health, safety, and welfare.

THE

CITY COUNCIL’S

FINDING

THAT THE FACILITY IS NOT

SO LOCATED

AS TO MINIMIZE INCOMPATIBILITY WITH

TILE

CHARACTER OF

THE SIIRROIJNDING AREA AND

MINIMIZE THE

EFFECT ON THE VALUE

OF THE SURROUNDING PROPERTY IS NOT

AGAINST THE

MANIFEST

WEIGHT

OF THE

EVIDENCE.

The testimony ofRWD’ s two witnesses on this criterion was seriously flawed and anything

but persuasive.

ChrisLannert, who testified that the facility would be compatible with surrounding land uses,

has testified at siting hearings

on 35 previous occasions, coming to the conclusion that the facility would be

compatible

of those

occasions.

The

one time Mr. Lannert concluded

that a facility

would not

compatible, he was testifying for a siting opponent.

(TR. 2-24, Page 86).

Despite all the off-site photoviews Mr. Lannert used to demonstrate compatibility, he had none from

the Village of Creston which is the closest urban area and maycontain up to 100 homes.

(TR. 2-24, Page 94).

He acknowledged that the proposed facility would be the largest land form in Ogle County.

(TR. 2-24, Page

109).

Most troubling about

Mr.

Lannert’ s

testimony

that his conclusions were

based

in substantial

reliance on an off-site screening berm between the proposed facility and the Village of Creston.

He did not

know who owns the land on which this berm is located, or how it will be regulated since it is,

in fact, not part

of the facility. (TR. 2-26, Pages 190, 191).

This berm is already 35 feet high in places, but still not vegetated.

(TR. 2-24, Pages 99,112).

Peter Polletti, areal estate appraiser,

is also a regular in- landfill siting hearings having testified 20 to

25 times thata proposed facility will not impact property values.

(TR. 2-24,Page 146).

A limiting condition

forhisconclusions is that there would be 100

compliancewith all regulations, a dubious assumption given

RWD’s operating record.

(TR. 2-24, Page 148).

Although Mr. Polletti’s conclusionsare presented as science, theyare nothing more than guesses and

statistical manipulations.

Mr. Polletti’s approach is to compare various aspects of

property

sales in

atarget

area defined as generallya

1 to 1.5 mile radius around the proposed site and a control area defined generally

as the

remainder of the community.

Mr.

Polletti

is not aware of any

studies that establish the scientific

validity ofthis approach.

(TR. 2-24, Page 159).

The Village of Creston is within his target area.

Mr. Polletti

conceded that Creston

has an

higher household income than the City of.Rochelle, but yet

has lower

property values.

(TR. 2-24, Pages

152-158).

Mr. Polletti admitted that he wouldjust be guessing that the

proximity ofthe railroad and lack of proximity to shopping might account for these differences, and that he

did not have any data to support those guesses.

The analysis also assumesthat the existing landfill operation

which is one-eighth the size ofthe proposed expansion has a similar impact on surrounding property values

and, again, Mr. Polletti was unaware of any studies other than his ownto support that assumption.

(TR. 2-24,

Pages 163,

165).

As was the

case with a number of other witnesses for RWD, Mr. Polletti’s testimony was severely

undermined by the serious and unjustified data manipulation requiredto reach his conclusions.

Mr. PoUetti

analyzed every fifth sale out of370, yet his total of 80 indicates that other sales were added.

He offered no

explanation as to those.

(TR. 2-24,Pages 170,

171).

Heexcluded, withoutjustification or scientific support,

all bi-level and tn-level sales,

all residential

sales which included large lots, all

residential sales involving

construction before

1950, and all residential sales including out buildings.

(TR. 2-24, Page 169).

He also

excluded from his control group all sales in an area called Lindenwood without offering explanation.

(TR.2-

24,

Pages

160-161).

On the other hand, he included one sale

the target area that was outside the time

parameters forhis study, and that sale, coincidentally, had the highestrate ofappreciation ofany sale within

the target area.

(TR. 2-24, page

166).

Despite the selective inclusion and exclusion of sales

information, Mr. Polletti’s numbers, in fact,

suggest that there will

be an impact on property values.

He did not consider rate ofturn-oven in the control

and target study areas, nor percentage of asking price realized, nor lot size other than to exclude large lots.

(TR. 2-24, Pages

157,

158).

He did acknowledge that lot sizes

in Creston

in the target area were larger than

Rochelle in the control area, but disputed that there is a correlation between prices and lot size.

(TR. 2-24,

Page 162).

He also admitted that ifthe residential sales in the target area were looked at sequentially, every

single sale has a lower rate of appreciation than the previous sale.

(TR. 2-24, Page

168,

169).

Lastly, he

acknowledged that the 4 sales in the target area since the firstApplication was filed havea significantly lower

average price than the remainder of the sales prior to filing ofthe first Application.

(TR. 2-24, Page 172).

With

regard to compatibility, Mr. Lannert’s conclusions are substantially based

upon the existence

of a screening berm,

which is outside of the facility’s boundaries and, therefore, beyond the

ability of the

siting authority to control.

Mr. Polletti’s conclusions are based on

highly selective data manipulation, and

even then

Mr. Polletti never disputed that there is no

scientific validation of his

conceptual approach

assessingreal estate valueimpacts.

In fact, the data, as selective as

it is, clearlyshows decreasing ratesofreal

estate appreciation in the area surrounding the existing landfill.

Accordingly, the City Council was justified

in concluding that this criterion had not been met.

CONCLUSION

For the foregoing reasons, Concerned Citizens Of Ogle County respectfully prays that the decision

of the Rochelle City Council denying the Siting Application be affirmed.

Concerned Citize

s Of Ogle Coun

GEORGE MUELLER, P. C.

—

Attorney at Law

BY:

--.,j-

501 State

St.

TheirAtto

Ottawa, IL 61350

Phone:

(815) 433-4705

APPENDIX A

Rochelle City Council Members

Page 2

May 16,

2003

In reliance‘on

theterms of theHost Agreemeiit, RWD has acquired the property

known

as theBabson Farm as well as theproperty known as the Creston Parcel.

At the

request ofthe City, RWD has annexedboth oftheseparcels

the City, in

each case

under an .~A_rmexation

Agreement, which ~peciflca1ly

provides for the use ofthe property

as a landfill.

Despite its obligations under

the

terms oftheHost Agreement, the Citydid

not cooperate with RWD in the planning, development or consideration ofthe expansion

and has completely failed to make accurate information concerning thelandfill available

to the public.

Moreover, we believe that the City has, indirectly and without informing

RWD or the public, taken action which has the intended orprobable’effect ofinterfering

unreasonably with the operation or expansion ofthe facilityby adopting requirements or

conditions that have not been disclosed.

Ifthe City’s breach ofthe Host Agre~ment

is not cured by the action of the PCB

or otherwise, the City’s course ofconduct violates theCity’s obligations under theHost

Agreement as well as the implied obligation of“good faith” which is imposed on the City

under Illinois law, thereby relievingRWD from furthermonetary and other obligations

under the Host Agreement.

We note that the City’s course ofconduct also constitutes

“UncontroUable Circumstances” under Section 13.4 oftheHàst Agreement in that denial

of the expansion constitutes an “act,

event or condition.

that has had.•.

a materiaJ

adverse effect ont’ RWD’s rights under theHost Agreement and was “beyond the

reasonable control of’ RWD.

Those circumstances, ifnot cured,.thud further excuse

RWD’s obligation.to performvarious non-monetary obligations ~inderthe Host

Agreement, including providing the Citywith disposal capacity for20 years under.

Section 2.2, providii~gfree waste disposal under Section

3.1,

reserving such capacity

under Section 3.9

and assuming the closure and post-closure costs for the existing

facility, inc’1udin~

Unit I (Section3.12).

Because these issues are quite serious and involve substantial damages, we want

to make sure that theCity is on notice at the earliest opportunity and will ~ummarizethe

legal bases for ourclaim in order that the City Council maycarefully consider

its

obligations.

When the Host Agreement was executed, the City wasnot the siting authority in

that the land had not yetbeen annexed to ~.he

City.

The Citywas the lessor of the existing

fLlitydttmed

approval for an expansion ofthe existing landfill facility” in its

proprietary

capacity as

lessor.

Thus, ifRWD

hadapplied for an expansion

with Ogle County

as the

siting

authority,

the

City clearly could nôthavevoted to

object to the expansion consistent with

its “Cooperative Guarantee:.”

Mthq~.lgh

the

City subsequently b~came

the siting

authority

forthe expansion, its duties under the 1a~idflh1

lease I~emained

unchanged, and it was

obligated to communicate effectively with RWI) and, thepublic before, during and after

theproceeding regarding the City’s requirements, standards arid conditions associated

with the laiidfill and to

approve a reasonable expansion recommended by the City~

staffs

independent consultants and attorneys as well as by the Hearing Officer.

Rocheile City Council Members

Page 4

May

16, 2003

have

thelegislative

authority to enact

an ordinance or resolution that breaches its

contractual obligations under. a lease ‘ofxñiuiicipál property, but that does not preclude an

action ‘forbreach

contract in connection with a lease entered into in its

proprietary

capacity. ~~In

re Wa-Wa-Yanda, Inc.

Dickerson,

18 A,D.2d

251, 254,

239 N.Y.S .2d

473, 477 (1963).

Under suchcircumstances “use

ofthe ordinance was merely ‘the

City’s way ofbreaching the contract.”

E & E Hauling, Inc. v. Forest Preserve District~f

DuPage

County,

613 F.2d

675,

680

(7th

Cir.

1980).

Iii B & B Hauling a landfill operator leased the Mallard Lake Recreational

Preserve from the DuPageCounty Forest Preserve District with the exclusive right to

operate and maintain a sanitary landfill.

When theForest Preserve District subsequently

adopted new ordinances prohibiting certain waste from being deposited at the landfill

site, the Seventh Circuit found there was a claim against the Forest Preserve District for

violating the Contract Clause of theUnited States Constitution, whichprovides “No State

shall..

pass any.

law impairing the Obligation ofContracts.”

That is somewhat

similar to what had happened in the Wa-Wa-Yanda case where the town had leased land

for a marina and the sale of gasolinebut subsequently enacted an ordinance barring the

sale of gasoline.

Such an

abrogation ofcontract rights is not permissible, arid someone

contractingwith a municipality, such as RWD, has a right to either enforce its contract

against the City or obtain damages for the contract’s unconstitutional impairment.

One

way or the other, RWD is entitled to enforce theCity’s contractual duties under the lease

made in the City~s

proprietary

capacity.

That.ri~ht

enfor~e

the contr~ct

is not the same

as a right to challenge the City’s

legislaiive.aüthority,

and the’City’s exercise,of

legislative authority in violation ofsuch a contract entitles RWD tocontract remedies.