BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFF~C~
IN
THE
MATTER
OF:
.
)
I U 2004
STATE OF ILUNOJS
PROPOSED
SITE
SPECIFIC
REGULATION
)
R0411
POll~tf~~
Control
APPLICABLE TO
AMEREN ENERGY
)
(Site
Specific
GENERATING
COMPANY,
ELGIN,
ILLINOIS)
Rulemaking
-
Noise).
AMENDING
35
ILL.
ADM.
CODE 901
NOTICE
PLEASE TAKE NOTICE that
I have today filed with the Office
of the Clerk of the Pollution Control Board the Post-Hearing
Comments of Howard Chinn,
P.E.,
of. the Office of the Illinois
Attorney
General,
and
an
Amended
Resume for Howard Chinn,
•P.E.,
copies of which are hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the State
of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement!
Asbestos Litigation Division
ROSEMARIE
CAZEAIJ,
Chief
Environmental Bureau
Assistant Attorney General
BY:
~
JOEL J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street,
20th Floor
Chicago,
IL
60601
(312)
814-6986
Dated: March 10,
2004
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
M~.Dorothy Gunn
Clerk of the Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph,
Suite 11-500
Chicago,
IL 60601
(312)
814-3620
Mr. John Knittle,
Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield,
Illinois
62794
(217)
278-3111
Mr.
Scott Phillips,
Esq.
Illinois
Environmental
Protection
Agency
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois
62794-9276
(217)
782-5544
Office of Legal Services
Illinois Department of Natural Resources
One Natural Resources Way
Springfield,
IL 62702-1271
(217)
782-6302
Ms. Marili
McFawn,
Esq.
Schiff,
Hardin
&
Waite
6600 Sears Tower
Chicago,
Illinois
60606
(312)
258-5519
Realen Homes
Attn: Al Erickson
1628 Colonial Parkway
Inverness,
Illinois 60047
Village of Bartlett
Attn:
Bryan Mraz, Attorney
228
5. Main St.
Bartlett, Illinois 60103
RE
c~
r~
t~
y ~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’SOFFICE
IN
THE
MATTER
OF:
)
.
~
2004
STATE OF ~LUNOJS
PROPOSED SITE SPECIFIC REGULATION
)
R041l
Pollution Control Board
APPLICABLE TO ANEREN ENERGY
)
(Site Specific
GENERATING COMPANY,
ELGIN,
ILLINOIS)
Rulemaking
-
Noise)
AMENDING 35
ILL. ADM. CODE 901
POST-HEARING COMMENTS OF HOWARD CHINN,
P.E.,
OFFICE OF THE ILLINOIS ATTORNEY GENERAL,
OPPOSING THE PROPOSED SITE SPECIFIC REGULATION APPLICABLE TO
AMEREN ENERGY GENERATING COMPANY, ELGIN,
ILLINOIS
AMENDING 35
ILL. ADM.
CODE 901
Howard Chinn,
P.E.,
of the Office of the Illinois Attorney
General submits the following comments in opposition to Ameren
Energy Generating Company’s
(“Ameren”)
proposal
for, a site-
specific rulemaking
(‘~‘proposal”) for its peaker power plant
facility in Elgin Illinois
(“facility”)
1.
The Attorney General’s Office has been unable to
confirm Ameren’s claims that
a 12-foot long inlet silencer as
opposed to an 8-foot long silencer maximizes sound abatement at
its facility.
Ameren provided no manufacturer’s specifications
or design criteria to the Board to indicate the extent of sound
attenuation for either of the inlet silencers.
In addition,
Ameren provided no manufacturer’s specifications or design
criteria regarding their claims that the lagging and duct
structural stiffening is of
a quality to maximize noise reduction
at
its facility.
The claims regarding the silencers,
lagging,
1
and duct structural stiffening are unsubstantiated and vague.1
2.
Ameren’s claim that the facility’s exhaust outlet
is
equipped with “state of the art” noise abatement
is unverifiable
because,
again, they have not provided any information to the
Board in support of this position.2
The American Heritage
Dictionary’s definitionof “state of the art”
is “the highest
level of development,
as of a device,
technique,
or scientific
field, achieved at any particular time.”
Ameren falls far short
of demonstrating that they meet this definition.
3.
Further, Ameren claims that the silencer panels on the
exhaust outlet were designed specifically to attenuate the low
frequency of 31.5 Hertz and 63 Hertz octave bands while also
providing substantial mid and high frequency noise attenuation.3
If this
is true then Ameren should have included copies of the
design specifications to the Board for verification.
It chose
not to.
4.
Ameren claims that as part of its proposal, they
investigated the technical feasibility and economic
reasonableness of seven additional noise abatement measures.4
Ameren claims that these measures are unproven and would require
See Tr.
at 26-28.
2
Tr. at 28.
Id.
~
Tr. at
31; Ameren Petition at Exhibit E.
2
extensive research,
design or redesigning.
However, Ameren has
not supplied the Board with a copy of a valid technical
feasibility report documenting the technical data upon which they
relied on for their conclusions.
5.
Ameren’s economic reasonableness analysis of those
seven noise abatement measures
is also invalid.
Cost estimates
provided by Ameren in their petition are inaccurate and range
from -25
to ÷75.~ In essence, Ameren is speculating on the
costs of the seven noise abatement measures.
6.
For example, Mr.
Smith of Ameren said that the cost
estimates do not include the cost of down time at the facility
during removal,
reconstruction and installation.6
However,
Ameren provided testimony that their Illinois EPA permit allows
them to operate the facility a maximum of 16
of the time on an
annual basis.7
In other words,
the Ameren facility will be idle
at least 84
of the time on an annual basis.
There will be
plenty of additional time for Ameren to install additional noise
abatement measures without incurring any additional
cost.
7.
Mr. Smith testified that one of its additional noise
abatement measures would require its emissions stack to be
relocated to make room for additional silencers.
Mr.
Smith also
Tr. at 31.
6
Tr.
at
32.
~
Tr.
at 248.
3
claimed that this measure would require re-modeling and securing
a. revised air permit.8
Upon questioning,
however Mr. Smith and
Ameren’s attorney Ms. McFawn said that they weren’t sure
if a
permit revision would be needed.
Ms. McFawn said that Ameren
would have to investigate the possibility of securing a revised
air permit.9
8.
Ameren also proposed an “active noise control system”
as an additional noise abatement measure even though they
considered it to be completely experimental and not technically
feasible.
Ameren estimated that this system would cost
$6
million even though they did not provide any information to
explain how they arrived at this figure.~-°
9.
Ameren claimed that additional inlet silencers would
degrade unit performance by increased pressure drop through the
inlets thus decreasing the economic value of the facility.1’
This claim is unsubstantiated and without merit.
In his
testimony,
Mr. Smith referred to Attachment C of Ameren’s
petition.’2
Attachment C shows a compressor
(even though its not
8
Tr.
at 32-33.
Tr.
at 253-255.
~
Tr.
at 33-34.
Ameren also neglected to provide cost
breakdowns for its other proposed noise control systems.
See
paragraph 15.
~
Tr.
at 35-36.
~2
Tr. at 26.
4
identified)
that precedes the combustor section.
A compressor is
used to raise the pressure of the incoming air to a pressure
level suitable and adequate for the combustor.
This compressor
should be able to compensate for any increase pressure drop
through the silencers.
10.
Ameren’s witness Dave Parzych of Power Acoustics,
Inc.
testified that other prominent noise sources such as the air
cooled generator, heat exchangers and transformers cannot be
completely enclosed because they need air flow for cooling.’3
The Attorney General’s Office,
at the request of Ameren,
has
provided information to the Board regarding an.electric
generating plant located in Hillside,
Illinois where all the
equipment
is located in a building without a roof to block noise
emissions yet allow for the free movement of
air.’4
The walls
were effective in directing the sound upwards and away from
nearby homes and businesses.
At this point,
it does not appear
that Ameren has investigated the noise reduction system at the
Hillside facility.
11.
One of the factors that Ameren considered in
determining the site specific sound pressure level requirements
was information supplied by Siemens Westinghouse that defines the
13
Tr. at
61.
14
See Response to question Raised at Hearing,
filed on
February
9,
2004.
5
equipment sound power levels.’5
This information was not
included in the petition filed with the Board.
This information
is needed to assess the extent of sound attenuation being
achieved by the silencers used at the facility.
12.
Another Ameren witness, Greg Zak of Noise Solutions,
Inc.,
compared Ameren’s proposal with a portion of the Board’s
general noise limitations.
Mr. Zak concluded that the decibel
levels in Ameren’s proposal are not significant due to the
ambient noise present in the surrounding area.
In other words,
the ambient noise masks the noise generated by the facility.
Based on Mr.
Zak’s testimony,
it would appear that Ameren’s
proposal is moot.
13.
Mr.
Zak testified that over the past 30 years Illinois
EPA has not received any complaints regarding peaker noise.
This
claim is somewhat misleading because the proliferation of peaker
plants was virtually non-existent until a few years ago.
This
proliferation prompted then Governor Ryan to request the Board to
hold informational hearings to address issues regarding peaker
power facilities back in 2000.’~
14.
Mr. Zak also testified that although most stationery
noise sources are not controlled,
he provided no facts,
15
Tr.
at 62.
16
See,
generally,
In re: Natural Gas-Fired,
Peak-Load
Electrical Power Generating Facilities
(Peaker Plants),
ROl-lO.
6
references or citations for this claim.’7
Certainly, not all
stationary sources of noise need to be controlled if they are
already in compliance with the noise rules and regulations
adopted by the Board.
This claim is ambiguous and without merit.
15.
Mr. Parzych testified that the additional cost of noise
abatement measures is speculative because Ameren has not
determined the exact noise reduction and other engineering
requirements.’8
The Attorney General’s Office is in complete
agreement with this position and are convinced that most of the
testimony relating to technical feasibility is also speculative
for the same reason.
16.
Mr. Parzych also testified that placing the four gas
turbines within a building does not appear to be feasible without
totally redesigning and re-engineering the facility.
He said
that the gas turbine units
at the facility were designed for
outdoor use only.’9
However,
other electric generating
facilities,
such as the one in Hillside,
are surrounded by walls,
if not totally enclosed.
In addition, putting walls around
turbines and other prominent noise-producing equipment
(see
paragraph 10)
at Ameren’s facility would provide a needed-sound
barrier rather than actually changing the setting from outdoors
17
Tr.
at 73.
18
Tr.
at 102.
19
Tr.
at 103-104.
7
to
indoors.
17.
In response to my request for additional noise testing
at the facility during periods of minimum ambient noise,
Mr.
Parzych said that: the minimum ambient noise level occurs late at
night or in the early morning hours and that these times also
coincide with minimum power consumption.2° Firing up peaker
units during periods of minimum consumption is expensive.
Ameren failed to mention that periods of minimum ambient noise
may also occur on Sundays and certain holidays
(on hot summer
days,
for example) when power consumption is at a high level.
Therefore Mr. Parzych’s inflated cost estimates associated with
the operation of the facility during noise tests do not appear to
be credible.
18.
Although Ameren provided many reasons and excuses for
not conducting additional noise tests
21,
the Board should keep
in mind that Mr.
Zak has tested the peaker units at the facility
for noise emissions
in the past,
and he
is perfectly capable of
doing it again.
Ambient noise and weather conditions were
factors in Mr. Zak’s prior set of noise emissions tests and would
have to be factored into future tests.
19.
The Board asked Ameren if, prior to construction,
it
would have been possible to design the facility to meet the
20
Tr.
at 106-107.
21
Tr. at 107-110.
8
Board’s noise limitations.
Mr. Smith said that Ameren would not
have built the facility if the land across Gifford Road was Class
A, but he did not say if the facility could have been built to
have met the Class C land to Class A land noise emission
limits.22
20.
Mr. Rao of the Board asked Mr.
Smith if
Ameren
included
noise level specifications for turbines when Ameren ordered those
turbines from the manufacturer.
Mr. Smith responded that Ameren
worked with the nianufacturer on such specifications, but Ameren
never provided those specifications to the Board or the parties
on the Service List.23
This information is necessary to assess
the adequacy of the noise attenuation equipment furnished with
the turbines.
21.
Ameren claimed that a new stack would require full
aerodynamic modeling and significant analytical work.24
In
response to a question from the Board,
Mr.
Smith indicated that
he did not know if the manufacturer ever did significant
analytical work on the existing stack at the facility.25
Therefore the need for the detailed analytical work on a proposed
22
Tr.
at 112-113.
The Attorney General’s Office presumes
that the Board’s question meant the noise limitations from Class
C land to Class A land.
23
Tr.
at 135.
24
Ameren Petition, page 10.
25
Tr.
at
146.
9
new stack is purely speculative.
22.
Mr. Smith testified that “disturbances in the
downstream flow”
could be problematic for NOx burners in the
turbines at the facility.
Mr. Smith also suggested that problems
with the NOx burners could lead to problems with Ameren’s Clean
Air Act permit for the facility.26
Both of Mr
Smith’s
statements are unclear, very ambiguous,
and should not be given
any weight by the Board.
23.
In response to questions from the Attorney General’s
Office regarding the construction of an earthen berm as
a noise
barrier,
Mr. Parzych said that it would work best if it were
built close to new homes on the Realen property.27
Mr.
Smith
said that Ameren representatives had brief conversations with
representatives of Realen Homes about construction of a berm but
did not recall a “serious discussion”
on the topic.28
Earthen
berms and fences are common techniques for diminishing noise
where industrial areas or expressways are adjacent to residential
areas.
However, other than brief conversations, Ameren
essentially ignored the berm/fence option on the Realen property
and never addressed the technical feasibility or economic
reasonableness of these options.
In addition, Ameren never
26
Tr.
at 151-152.
27
Tr.
at 165-166.
28
Tr.
at 167.
10
addressed whether an effective berm or fence could be constructed
on Ameren’s property along Gifford Road.
24.
The Board questioned the procedures that Ameren used in
the application of the ambient correction factor.
There was some
concern about applying the ambient correction factor
to. determine
the sound level from one turbine because the ambient may be
subtracted more than once.
Ameren indicated that one way around
this would be to operate all four units at once
29,
which is what
the Attorney Generals’s Office suggested.
25.
Ameren provided testimony that a noise of
80 decibels
at 31.5 Hertz would penetrate houses with closed windows.
Mr.
Zak pointed out that passenger jet aircraft exceed this noise.3°
Mr.
Zak neglected to say that flight schedules change and that
noise from aircraft that are landing is lower than during take
off.
Mr.
Zak also neglected to mention if he took his
measurements during a high air traffic period or a low traffic
period.
Furthermore,
Mr.
Zak failed to mention if the jet
aircraft noise was recorded in the area of the facility, near an
airport runway,
or at some other location.
He also failed to
mention how high up such a jet aircraft would be.
26.
Mr.
Zak testified that, given the extraneous sound and
29
Tr.
at 177-182.
30
Tr. at 217.
This
is within Ameren’s proposed noise
limits.
11
ambient noise in the area of the facility,
a six to 22 decibel
increase
is reasonable.
However, Mr.
Zak also said that,
absent
extraneous sound and assuming a low ambient noise level,
a six
decibel increase would be ,significant and a 22 decibel increase
would be extremely significant.3’
Mr. Zak then conceded that
there are days when the ambient and the extraneous noise is lower
at the facility such as Sundays and holidays
(Christmas and New
Year’s Day were mentioned)
~32
These are the same days that many
people do not work and would likely be at home.
During the
summer months, people would likely be outside.
It is during
these times that people who will living on the Realen property
would likely be subject to noise coming from the Ameren facility.
27.
Ameren did not mention during the hearings that
it and
U.S. Can Corporation sued Realen Homes,
two municipalities,
and
others regarding the zoning change for the property that Realen
owns.33
A copy of the amended complaint in that case
(without
the voluminous attached exhibits)
is attached as Exhibit A.
The
Attorney General’s Office has recently learned that all or some
~‘
Tr. at 228-230
32
Tr.
at 233-235
~
See Cook County Circuit Court Case No.
2003-CH-1l307:
Ameren Energy Development and United States Can Co.
v.
Dennis
M.
Nolan,
City of Elgin,
Realen Homes, Village of Bartlett,
Catherine Melchert, Michael Airdo, TL Arends, Sherry Boormann’,
Thomas Floyd, and John Kavouris.
Complaint filed on July
8,
2003.
Amended complaint filed on October
15,
2003.
12
of the parties in this matter have reached or are about to reach
an out-of-court settlement involving a sound and light easement
on the property now owned by Realen.
However,
the easement does
not excuse Ameren’s deficient petition.
28.
In the conclusion to a report submitted as support for
Arneren’s petition,
Mr. Parzych wrote,
“It is probable that a
building would be required over the gas turbines,
generators,
and
inlet ducting to approach the Illinois Daytime Noise Regulations
and mitigate the mid frequency issues.”34
The Attorney General’s
Office supports this concept and believes that Ameren should
develop the engineering design for such a building incorporating
the appropriate acoustical specifications to achieve the required,
noise attenuation.
29.
In conclusion,
Ameren’s petition should be denied
because,
inter alia,
a.
Ameren has not conducted bona fide technical
feasibility and economic reasonableness studies of available
noise control technologies for the facility.
b.
Ameren has not demonstrated that the facility is
fundamentally and significantly different than other similar
~
See Analysis and Results of Acoustical Measurements Taken
Near the Ameren Elgin,
Illinois Power facility During the
Operation of the Unit
4 SWSO1D5A Gas Turbine,
Power Acoustics,
Inc.,
David J.
Parzych,
P.E.,
June 20,
2003.
Submitted as part
of petitioner Ameren’s documents in anticipation of hearing for
Board docket R04-ll, December
3,
2003
(written report No.
2)
13
facilities.
The Ameren facility does not deserve a set of site-
specific regulations which are more lenient that the Board’s
generally applicable regulations.
c.
Ameren did not provide a responsive answer to the
Board’s question regarding the possibility of designing the
facility to meet the Board’s Class C to Class A land use
limitations.
d.
Ameren did not conduct noise measurements at times
when ambient and extraneous noise would likely be at their
lowest.
e.
A site specific rule for Ameren might set a
precedent in that other peaker power plants may petition the
Board to be exempt from the Board’s generally applicable noise
regulations.
f.
Generally recognized and accepted engineering
designs are currently available for acoustical attenuation
systems applicable to the Ameren facility.
Ameren should conduct
an engineering evaluation of such systems rather than receiving
relief from the Board’s generally applicable noise regulations.
30.
I am submitting an updated and more accurate resume
(Exhibit
B)
which should replace the one that
I submitted at the
hearing.
14
Respectfully
submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the State
of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement!
Asbestos Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
Assistant Attorney General
~HOWARDCHINN
Professional Engineer
Environmental Bureau
188
W. Randolph Street,
20th Floor
Chicago,
IL
60601
(312)
814-5393
BY:
15
IN
THE CIRCUIT COURT OF COOK COUNTy~Th~LJ,NOIS
COUNTY DEPARTMENT
-
CHANCERY DIVlSION-~
AMEREN
ENERGY DEVELOPMENT
.
.
.
~
COMPANY,
an Illinois Corporation, AMEREN
ENERGY
GENERATING COMPANY,
an
Illinois
Corporation,
and UNITED STATES
CAN
COMPANY, a
Delaware Corporation,
Gen. No.
03 CH 11307
Plaintiffs,
The VILLAGE OF
BARTLEU,
an
Illinois
A
Municipal
Corporation, CATHERINE J.
_____________
MELCHERT, Village
President,
MICHAEL
AIRDO, T.L.
ARENDS,
SHERRY BORMANN,
THOMAS A. FLOYD,JOHN KAVOURIS,and
DENNIS
M.
NOLAN, Village Trustees,
REALEN
HOMES L.P., a Pennsylvania
Limited
Partnership, and the CITY OF
ELGIN,
an
Illinois
Municipal Corporation,
Defendants.
FIRST AMENDED COMPLAINT OF
AMEREN ENERGY
DEVELOPMENT
COMPANY AND AMEREN
ENERGY
GENERATING COMPANY FOR DECLARATORY JUDGMENT
AND
OTHER RELIEF
Now
come
Plaintiffs,
Ameren
Energy
Development
Company,
an
Illinois
Corporation,
and
Ameren
Energy Generating
Company,
an
Illinois
Corporation,
by their attorneys,
Schnell,
Bazos,
Freeman, Kramer, Schuster
& Vanek and Schiff,
Hardin
& Waite, and for their Complaint
For
Declaratory
Judgment
And
Other
Relief
against
Defendants,
The
Village
of
Bartlett,
Catherine
J
Melchert,
Michael
Airdo,
T.L. Arends,
Sherry Bormann,
Thomas
A.
Floyd,
John
Kavouris, Dennis
M.
Nolan, Realen
Homes L.P.,
and the City
of Elgin,
state:
PARTIES
1.
Ameren
Energy
Development
Company,
and
Ameren
Energy
Generating
Company
(collectively,
“Ameren”),
are
the
owners/operators
of
an
electric
power generating
plant located at
1559 Gifford Road,
Elgin,
Cook County,
Illinois,
which
location
is directly east of
the
property described
in paragraph
6 of this Complaint (the “Subject
Property”),
2.
The
Village
of
Bartlett
(“Village”)
is
an
Illinois
municipal
corporation
with
its
principal offices located at 228
South
Main
Street, Bartlett, Cook County, illinois.
3.
The
individuals
named herein, Catherine J.
Meichert,
Michael Airdo, T.L. Arends,
Sherry
Bormann,
Thomas
A.
Floyd,
John
Kavouris,
and
Dennis
M.
Nolan,
are
the
Village
President
and
members
of the
Village
Board
of Trustees
(“Village
Board”),
respectively,
of the
Village.
4.
Realen
Homes,
LP
(“Realen”)
is
a
Pennsylvania
Limited
Partnership
doing
business
in
the
Village,
and
is
the owner of the Subject
Property.
Realen
is
in the business of
developing,
building
and selling
residential homes to the general public.
5.
The
City of
Elgin
is
an
Illinois
Municipal
Corporation
with
its
principal
offices at
150
Dexter Court,
Elgin, Kane
County,
Illinois, whose boundaries abut the Subject Property,
and
who appeared
and made comment to the Village
on the
Petition described in this
Complaint.
REALEN’S
PETITION TO THE VILLAGE
6.
The
Subject
Property
is
a vacant parcel of real estate
approximately 121.6 acres
in size, located on the northwest corner of West
Bartlett
Road
and Gifford Road.
The Subject
Property
is
legally described
in
Exhibit A attached hereto, and
incorporated
herein by reference
as
if fully set forth.
7.
The Subject
Property
constitutes
a
portion
of the property formerly proposed for
use as
a
baleful operation
by the Solid Waste Agency of Northern
Cook County (“SWANCC”).
8.
On
or
about
October
16,
2002,
Realen
submitted
a
petition
to
the
Village
requesting that
the
Village (a)
annex the Subject
Property and rezone
it from
the
ER-I
Estate
Zoning
District
(the
district
to
which
it
is
automatically
zoned
upon
annexation)
to
the
PD
Planned
Development
Zoning
District;
(b)
grant
a
special
use
permit
for
a
Planned
Unit
Development for multi-family and
single-famiLy housing
on
the Subject Property to
be developed
-2-
in accordance with a Preliminary Flat and PreliminaryPUD Plan; and (C) approve a Preliminary
Plat of Subdivision for the Subject Property (the “Petition”).
9.
At
the
time
the
Petition
was
fled
with
the
Village,
the
Subject
Property was
located in
unincorporated
Cook
County,
and was classified
in the
1-2 General Industrial District
of Cook County.
.
.
10.
The
Village, as
required
by
law
and
its
ordinances,
scheduled a
public
hearing
before
the
‘Village’
of
Bartlett
Plan
Commission
(“Plan
Commission”)
for
the
purpose
of
considering Realen’s Petition.
11.
The
Plan
Commission
conducted
a
public
hearing
on
the
Petition
on
February
13,2003.
12.
Following
said
public hearing, the Plan
Commission recommended to the Village
Board ofTrustees that the Petition
be denied.
13.
On
April
10,
2003,
the
Plan
Commission
conducted a
second
public
hearing on
.the Petition.
14.
Following
said
public
hearing,
the
Plan
Commission
again recommended
to the
Village Board that the Petition
be denied.
15.
On June
3,
2003,
the Village
Board conducted
a
public hearing on
the proposed
annexation
agreement
concerning
the
Subject
Property
(the
“Annexation
Agreement”).
The
Annexation
Agreement considered at the
public
hearing conditioned
the proposed
annexation
on
the
adoption
of an
ordinance
by
the Village
rezoning
the
Subject
Property from
the
ER-I
Estate
Residence
District
to
the
PD
Planned
Development
Zoning
District,
and
granting
a
special
use
for
a
multi-family
and
single
family
residential
project thereon.
The Annexation
Agreement also
contained a
provision
requiring the payment of Two
Million
Dollars ($2,000,000)
from Realen to the Village labeled as an “Annexation Fee.”
16.
Immediately following
the
public
hearing on
June
3, 2003,
the Village
Board
held
a
regular meeting and took the following
actions:
-3-
.4
i)
rejected
the
negative
recommendation
of the
Plan
Commission
regarding the Petition;
ii)
enacted
Ordinance
No.
2003
—
61
(a
copy
of
which
is
attached
hereto
and
incorporated
herein
as
Exhibit
B)
approving
the
Annexation Agreement (which
is attached to said Exhibit
B);
iii)
enacted
Ordinance
No.
2003
—
62
(a
copy
of which
is
attached
hereto and incorporated
herein as Exhibit C) annexing the Subject
Property
into the Village;
iv)
enacted
Ordinance
No.
2003
—
63
(a
copy of which
is
attached
hereto and incorporated herein as Exhibit D) rezoning the Subject
Property from the ER-I
Estate
Residence
District
to
the PD
Planned
Development
Zoning
District;
granting
a
special
use
permit
for
a
Planned
Unit
Development
to
be
developed
on
the
Subject
Property;
approving
the
Preliminary
Site
Plan
and
Preliminary Flat
of Subdivision
for the Subject
Property;
approving
the construction
of 210
single
family
homes
and
119
townhome
units
on
the
Subject
Property;
and
requiring
Realen
to
pay the
Village the sum of $2,000,000 as an
“Annexation
Fee”.
SURROUNDING
LAND USES
17.
The area immediately surrounding the Subject Property is heavily industrial:
a.
Ameren’s property
is to the immediate east of the Subject Property,
and
is
classified
for industrial
use.
b.
To the north are the following uses:
i)
GE
Capital
Module
Space,
a
storage
facility
for
rental
of sales
trailers.
-4-
ii)
Concrete Specialties, a facility for fabrication of concrete products,
with outside storage of products.
iii)
Bluff City
Materials,
a quarry and
mining operation.
c.
To the east are the following uses:
‘
.
.
i)
BFI Waste Systems, a facility for truck repair.
ii)
Commonwealth
Edison high power lines corridor.
iii)
E,
E
&
J Railroad tracks.
iv)
Midwest Compost, a waste
disposal
and
yard
waste
composting
site.
v)
Material Handling, a trucking facility.
d.
To the south are the following uses:
i)
Fru-Con
Construction,
a
construction
company
and
outside
storage yard.
ii)
U.S. Can, a manufacturing facility,with 20 loading docks.
e.
To the west are the following uses:
I)
The
remainder of the former SWANCC
property,
to
be
utilized
for
a nature preserve.
18.
The predominant industrial character of the area creates heavy truck traffic and
other
vehicular traffic on
Gifford Road and West Bartlett Road.
The
quarry and
mining operation
contributes a great number of dump trucks and heavy equipment trucks.
U.S.
Can’s’ operations
contribute
many
tractor trailer
trucks.
Gifford
Road
also
serves
as
an
alternative
route
for
vehicle and truck traffic traveling south from
Lake Street,
Route 20.
19.
There are no
proximate
residential
uses to
the north, west,
or east
of the Subject
Property.
The
Subject Property is bounded
on the south
by West Bartlett Road.
-5-
AMEREN’S
PROPERTY AND
FACILITY
20.
‘
The
property
owned
by
Ameren
is
approximately
27.537
acres
and
is
located
directly
across
Gifford
Road,
to
the
east
of
the
Subject
Property.
It
is
separated
from
the
Subject Property only
by Gifford’Road,
a
two
lane1non-dedicated
right-of-way.
21.
Prior to the filing of the Petition,
and .at all
relevant times,
Ameren’s
property
has
been
classified
by the
City of
Elgin within
its
P1
Planned
Industrial
District for use as
an
electric
power generating facility.
22.
At the time
that Ameren
(a)
acquired
its
property,
(b) petitioned
the City of Elgin
to classify
it
in the
P1
Planned
Industrial
District for use as
an
electric power generating facility,
and
(c)
constructed
such
facility,
the
Subject
Property
was
classified
in
the
1-2
General
Industrial
Zoning
District of Cook County.
23.
The
electric
power
generating
facility
on
Arneren’s
property
consists
of
combustion
turbine
generator
units
with
a
current
capacity
of 540
megawatts
of
output
(the
“CTG Units”); equipment related to the operation of the
CTG Units
including, without limitation, a
generator
step-up
transformer,
diesel
fuel
generators,
generator
leads,
switch
yard
and
equipment
necessary
for
its
operation,
turbines,
transformers,
generators,
detention
pond,
auxiliary
power
transformer
for
‘station
services,
natural
gas
pressure
regulation
metering
station, demineralized water storage
tank, demineralizer trailer,
water pump houses,
raw water
storage tank, natural gas in line heater, oil water separator, and computerized process control
system;
and
service
buildings to provide
office space, parts storage,
maintenance
shop
space,
electrical
equipment
room,
personnel
facilities,
and
other
ancillary
equipment
and,
systems
needed to operate and maintain the
facility.
24.
Ameren invested
over
$200
million
for the
purpose
of acquiring
and
developing
the.Ameren Property.
-6-
25.
The
normal and
usual operation
of Ameren’s facilities generates
noise which
is
subject
to
the
rules
and
regulations of the ‘Illinois
Pollution
Control Board
(IPCB),
which
are
found at 35
Ill. Adm.
Code Part 901.
26.
The
IPCB
rules
and
regulations
provide
for
different standards
and
limitations
depending
on
the nature
and
use
of adjacent
land,
and
in
particular, set
higher standards
and
li,mitations
when
the
adjacent
land
is classified
as Class
A
receiving
land
which
includes
land
used as “residential,”
as
is the Subject
Property,
rather than
as
Class
C receiving
land which
includes land used as industrial.
27.
The
action of the
Village
in
classifying
the
Subject
Property
in
a
‘zoning
district
which
allows
residential
uses,
and
further,
in
permitting
residential
uses
thereon,
subjects
Ameren to the higher standards and greater limitations of IPCB rules and
regulations which are
applicable
to
adjacent
residential
uses,
as
distinguished
from
industrial
uses.
The
IPCB
noise
regulations contain no
noise emission limitations for noise emitted
from any Class C land to
any
receiving
Class
C land.
Therefore, the actions of the Village
rezoning the Subject Property to
a
residential
use
may adversely impact the operation of Ameren’s facilities and will unduly infringe
upon the ability
of Ameren to
freely and fully enjoy the use of its
property.
COUNT
I
DECLARATORY JUDGMENT
28.
Ameren
restates,
realleges
and
incorporates
the
allegations
in
paragraphs
1
through 27as
if fully set out in this paragraph 28.
29.
The
Village’s
actions
in
June
2003
in
approving
Realen’s
request
for
the
execution
of the Annexation Agreement,
rezoning of the Subject
Property, and the granting of a
special
use permit for the Subject Property are arbitrary, capricious, and unreasonable and bear
no substantial relationship to
the public health,
safety, and welfare for reasons which
include
but
are not limited to the following:
-7-
i)
The
Village’s
actions
are
(as
the
Village
itself
expressly
recognizes
in
Ordinance
No.
2003-63
and
in
the
Annexation
Agreement)
incompatible
with
‘and
contradictory
to
the
Comprehensive
Plan of the Village.
ii)
There
is
no
public
need
in
the
Village
for the
single-family
arid
multi-family
uses
proposed
by
Realen
and
approved
by
the
Village.
There
are
numerous
other
residential
developments
in
the
Village,
and
there .is
no
public need
for
additional
residential
uses at the location of the Subject Property.
iii)
The Village’s
actions are
incompatible
with
the
existing uses
and
zoning of adjacent and nearby
properties.
iv)
The Village’s actions are inconsistent with the character and trend
of development for the area.
v)
The Village’s actions will
have a substantial adverse impact on the
value of surrounding property,
including Ameren’s property.
vi)
The
Village’s actions
will
cause Ameren
to
suffer
substantial loss
in
the
value
of
its
property by
interfering
with
the
use and
enjoyment
of
its
property,
and,
in
particular,
its
ability
to
fully
operate and
utilize its electric power generating facility.
vii)
The
Village’s actions
will
cause Ameren
to
suffer substantial
loss
in
the
value
of Ameren’s
property
without any compensating
gain
to
the public.
viii)
The Village’s
actions do
not promote the health,
safety,
morals, or
general welfare of the public.
-8-
ix)
The
Village’s
actions
has
worked
and
will
continue
to
work
irreversible
and
irreparable
harm on’ Ameren without due process
of law.
30.
Ameren lacks any adequate remedy at law.
31.
‘
By
virtue
of the
foregoing,
a
real
and
substantial .controversy
exists
between
Arneren and
Defendants
herein
and pursuant
to
the provisions
of Section
2-701
of the
Illinois
Code
of Civil
Procedure,
it is just and proper that this Court enter a declaratory judgment setting
forth
the
rights
of the
parties
herein
and
declaring
the
actions
of the
Village
in
June
2003
approving the execution of the Annexation Agreement,
rezoning the Subject Property to the PD
Planned
Development
District,
and
granting
a
special
use
permit
for
a
Planned
Unit
Development for the Subject Property to be void, unenforceable, and contrary to law.
WHEREFORE,
Ameren prays for the following relief:
a.
that this Court find,
determine and declare that the ‘June
2003 ordinances
of
the
Village
approving
the
execution
of
the
Annexation
Agreement,
rezoning
the
Subject Property,
and
granting a special
use
permit
for the
Subject Property are arbitrary,
capricious, and unreasonable, and bear no
relationship to the public health,
safety,
morals, and general
welfare, and
that
said
ordinances
are
therefore
unconstitutional,
void,
and
unenforceable;
b.
that
this
Court
preliminarily
and
permanently
enjoin
and
restrain
the
Village
and
Realen
and
all
of
their
respective
officials,
agents,
and
employees from
applying or obtaining the benefits under the provisions
of
the June 2003
ordinances
of the Village
approving the
execution
of the
Annexation
Agreement,
rezoning
the
Subject
Property,
and
granting
a
special use
permitfor the Subject
Property;
-9-
r.
c.
that Ameren be awarded judgment
against the Defendants
to
this Count
I
for
its
reasonable
attorneys’
fees
and
costs
incurred
in
relation
to
this
Count I; and
d.
that this Court grant such other relief as
it deems just and equitable.
COUNT
II
,
‘
.
DECLARATORY JUDGMENT
-
CONTRACT ZONING
32.
Ameren
re-states, re-alleges and incorporates
each and
all
of the allegations set
forth
in
Paragraphs
I
through 27 above as
if fully set out in this Paragraph
32.
33.
The
Village
Board
of Trustees
required, as
a
condition
to
the
annexation
and
rezoning of the
Subject
Property,
that Realen
pay the
Village a special
“Annexation
Fee”
in
an
amount equal to Two
Million
Dollars ($2,000,000.00).
.
‘
34.
Said
fee
was
exacted
solely
and
specifically
to
reimburse
the
Village
for
approximately. $2,000,000
in
legal
fees
and
other
expenses
incurred
by
the
Village
several
years ago in
connection
with a series of lawsuits opposing the approval
and construction
by the
SWANCC of a
baleflll operation on the Subject Property (as well as certain
property
adjacent to
the Subject Property).
35.
Said
fee
was
not
required
under
any
existing
Village
ordinance,
and
was
not
calculated on any
uniform or pro
rata basis.
36.
On
information
and
belief,
the
Village
has
charged
no
other
applicant such
a
large,
lump sum fee as a condition for zoning of property upon annexation
to the Village.
37.
There
is
no
relationship between
Realen’s
current proposal
for
the
development
of the
Subject
Property
and
the
$2,000,000
fee
demanded
by
the
Village; the
fee
is
simply
intended
to
reimburse
the Village
for
the
fees
and
expenses
it
incurred
during
the unrelated
balefill
litigation.
/
38.
The
actions
of the
Village
approving the annexation
and rezoning of the Subject
Property,
and
granting a special
use
for the development of multi-family and
single-family uses
-10-
thereon constitute illegal contract zoning, in that they
were undertaken solely for the purpose
of
collecting said extraordinary fee, and not for proper zoning
purposes.
WHEREFORE, Ameren seeks the following
relief:
a.
that this Court find,
determine
and
declare that the June 2003 ordinances
of
the
Village
approving
the
execution
of
the
Annexation
Agreement,
rezoning the Subject
Property,
and granting a
special
use
permit for
the
Subject Property are arbitrary,
capricious, and unreasonable, and bear no
relationship
to
the public
health,
safety,
morals, and general welfare,
and
that
said
ordinances
are
therefore
unconstitutional,
void,
and
unenforceable;
b.
that
this
Court
preliminarily
and
permanently
enjoin
and
restrain
the
Village
and
Realen
and
all
of
their
respective
officials,
agents,
and
employees from
applying or obtaining the benefits under the provisions of
the
2003
ordinances
of
the
Village
approving
the
execution
of
the
Annexation
Agreement,
rezoning
the
Subject
Property,
and
granting
a
special use permit for the Subject Property;
c.
that Ameren be awarded judgment against the Defendants to
this Count
II
for
its
reasonable
attorneys’
fees
and
costs
incurred
in
relation
to
this
Count
II;
and
d.
that this Court grant such other relief as it deems just and equitable.
COUNT
ill
WRIT
OF CERTIORARI
39.
Ameren
re-states,
re-alleges
and
incorporates
each
and
all
of
the
general
allegations set forth
in Paragraphs
I through 27 above as
if fully set
out
in this
Paragraph 39.
40~
Ameren
seeks
review of the VillageTs
decision
granting a
special
use
for multi-
family and single-family housing on the Subject Property on the basis that:
—11—
i)
the Village’s decision
is contrary to the provisions of law, including
without
limitation,
the
Illinois
Municipal
Code,’
Section
65
ILCS
5/11-13-1.1,
and
the, requirements
of
Section
10-13-8
of
the
Bartlett Municipal Code, and
is therefore arbitrary,
capricious,
and
unreasonab!e;’and
ii)
the
Village’s
decision
is
against
the
manifest
weight
of the
evidence.
WHEREFORE, Ameren seeks the following relief:
a.
that the decision of the Village be judicially reviewed by this Court on
Ameren’s application for writ of certiorari;
b.
that
this Court find,
determine and declare that the decision of the
Village
granting
Realen
a
special
use
permit was
in
contravention
of law,
was
arbitrary,
capricious, and
unreasonable,
and
bears
no
relationship to
the
public health,
safety,
morals, and general
welfare,
and that said
decision
is therefore unconstitutional,
void, and unenforceable;
c.
that
this
Court
reverse
and
set aside
in
its
entirety the
decision
of the
Village granting a special use permit;
d.
that
this
Court
preliminarily
and
permanently
enjoin
and
restrain~
the
Village
and
Realen
and
all
of
their
respective
officials,
agents,
and
employees
from
applying
or obtaining the benefits of the
decision of the
Village approving the special use permit;
e.
that
Ameren
be
awarded
judgment
against
the
Defendants
for
its
reasonable
attorneys’ fees and
costs
incurred
in
relation
to
this
Count
Ill;
and
-12-
f.
that this Court grant such other reliefas
it deems just and
equitable.
Respectfully submitted,
AMEREN ENERGY DEVELOPMENT COMPANY,
AMEREN
ENERGY
GENERATING
COMPANY,
Plaintiffs
~y
~
)~J~1
__
Robert
I.
Berger
Ruth
E.
Krugly
SCHIFF
HARDIN
& WAITE
6600 Sears Tower
Chicago,
IL 60606
312-258-5500
Attorney No. 90219
MarkSchuster
SCHNELL,
BAZOS, FREEMAN, KRAMER,
SCHUSTER & VANEK
1250
Larkin Avenue#100
Elgin,lL60123
847-742-8800
Attorney
No.
91508
CH2\ 1047131.3
-13-
EXHIBIT
I.
~
RESUME
OF
HOWARD
0.
CHINN,
P. E.
PROFESSIONAL EXPERTENCE
Employed by the Illinois
Attorney General’s Office in the Environmental Division since April
1971
functioning as an environmental investigator, technical advisor, expert witness, litigation
support staff,
compliance program analyst, administration of technical consultant contracts, and
conducts engineering inspections of industrial and chemical facilities, and other pollution
sources.
PROFESSIONAL LICENSES
Licensed by the State of Illinois as a Professional Engineer in
1969 under the Illinois Professional
Engineering Practice Act of 1989,
225 ILCS 325.
Also licensed to
practice by the
State Of Indiana, the
State of Michigan and the State of
Wisconsin.
SIGNIFICANT OR NOTEWORTHY CASES
RELATED TO
NOISE
1.
Assigned to investigate complaints of alleged noise from the Hines Veterans
Administration Hospital in the early 1970s.
Investigation determined that the source of
the noise was emanating
from the water cooling towers installed on the roof ofthe
building.
A meeting with the hospital’s administrators and staff resulted
in
the installation
ofsound attenuation equipment on the fans which was the source of the noise.
2.
Assigned to investigate the alleged noise from a hospital located in Naperville, Du Page
County.
The investigation discovered that the source ofthe noise emission was from a
water cooling tower located on the hospital grounds.
The agreed compliance plan was to
relocate the cooling tower to a different
area.
3.
Conducted a joint investigation with Mr. Greg Zak,
JEPA, ofcomplaints from neighbors
ofa grain storage facility.
The investigation resulted in
an enforcement proceeding
against Seegers Grain before the Board in docket PCB 88-199.
The respondent
implemented a noise control program recommended by Mr. Zak pursuant to a stipulation
filed with the Board.
4.
Investigated complaints of
neighbors of K-S Concrete’s asphalt plant located in Elmhurst,
Du Page County.
The complaints were directed at the alleged source ofnoise,
odors, and
dust coming from the site ofthe asphalt plant.
Mr. Greg Zak assisted in the investigation
ofthe noise emissions.
A conference with K-S and their attorneys culminated in
a
1
resolution ofthe allegations which was incorporated in a consent decree filed with the
court
in Du Page County.
One provision
ofthe consent decree required that
K-5
retain an
independent noise consultant acceptable to the Attorney General’s Office to conduct
noise
measurements and to make recommendations
to K-5 to mitigate the emissions of
noise from their site.
5.
In a settlement of an enforcement action against the Robbins
Resource Recovery
Company, a municipal waste incinerator located in the Village ofRobbins, the Attorney
General’s Office developed an extensive and
comprehensive engineering compliance
program which was incorporated in a consent decree filed in the circuit court of Cook
County. One element ofthis program requires that the facility conduct an acoustical
engineering analysis of the potential noise sources and provide a report to the Attorney
General’s Office and the TEPA for approval.
The facility was required to
implement the
appropriate attenuation measures prior to commencement ofoperations, and to perform a
post start-up noise survey to
verify compliance with the applicable emission
limits in the
noise rules.
Robbins, with the concurrence ofthe Attorney General’s Office,
retained the
firm of Thunder Hearing
& Noise Associates to conduct the field noise measurements.
6.
Investigation ofcomplaints from neighbors ofthe Moline Corporation in St.
Charles,
Kane
County, a malleable and gray iron foundry. Complaints alleged the emission of
noise,
dust and odors from the facility.
Mr. Greg Zak assisted in the noise investigation
and recommended a number ofnoise abatement measures to the defendant.
7.
Investigated complaints of alleged noise emissions from the Austeel Lemont Company,
Lemont, Cook County.
Austeel operates a grey iron
foundry
utilizing arc furnaces with a
baghouse to control the emission of particulate matter. The major sources ofnoise were
the arc furnaces and the blower on the baghouse.
Following an inspection ofthe plant
facilities and a meeting with the management of the company,
the Attorney General’s
Office recommended that Austeel retain an independent acoustical consultant, acceptable
to the Attorney General’s Office, to conduct a survey ofthe facility to
identify and
characterize the dominant noises within the plant site and off-site locations near the
receptor.
Austeel, with the concurrence of the Attorney General’s Office, retained
George Kamperman, P.E. ofKamperman Associates Inc. to conduct the survey and
analysis.
I was present to witness
the on-site plant survey.
The plant operated during the
night time hours to
take advantage ofthe lower electrical rate.
A report ofthe survey and
analysis submitted to Austeel was also provided to the Attorney General’s Office for
approval.
The conclusion of the report indicated that Austeel was not the source ofthe
noise which gave rise to the complaints from the neighbors.
8.
Investigated complaints ofnoise from a skeet and trap shooting
club located
in Lake
County.
The Attorney General’s Office retained the consulting firm
of
Thunder Hearing
& Noise Associates to conduct noise measurements ofthe impulsive sound generated
from shot guns used in shooting clay targets.
2
9.
Joint investigation with IEPA of complaints from
a neighbor ofa
night club in the Old
Town neighborhood.
The complainant indicated that the noise level rises as time gets
later in the evening.
The complainant shares a common wall with the night club. Noise
measurements were taken by the JEPA at the complainant’s home and also
outdoors
during the midnight hours during Halloween.
IEPA and the Attorney General’s Office
met with the owners ofthe night club and recommended that they needed to implement
measures that would mitigate the transmission ofnoise to their neighbor’,s home and to
the outdoors through the vents in the ceiling.
The Attorney General’s Office received no
further complaints.
10.
Investigated and inspected the Hillside Quarry, located in the Village ofHillside,
in
response to
complaints from nearby residents alleging impulsive noise emissions
and
damage to homes from ground vibrations due the blasting operations used in
fracturing
the rocks at the quarry.
The quarry operators modified their blasting procedures using
a
sequential detonation process and agreed to use smaller charges and more bore holes.
The
quarry
has been closed and the site is now a sanitary landfill.
An electric generating
plant burning landfill gas is currently in operation at the landfill.
The generators, gas
compressors and other ancillary equipment are enclosed in a building.
The building
is
without a roof.
The noise level inside the building was very noticeable and required
hearing protection.
Outside the building the noise level was barely audible.
11.
Conducted a joint investigation and site inspection with the Cook
County State’s
Attorney’s Office in response to complaints of noise from the Vitran Express( formerly
Overland Transportation) trucking terminal located in Palatine.
See Board docket PCB
98-81.
The record ofthe Board indicated that three expert witnesses testified on behalfof
complainants
-
Greg Zak, Tom
Thunder and Roger Harmon.
The site inspection
discovered that the truck terminal failed to implement the compliance program as
required under the PCB 98-81 Board order.
IEPA and the Attorney General’s Office met
with the terminal manager to determine the reason for noncompliance.
12.
.
Testified
as an
expert witness for the State ofIllinois
in docket PCB 72-49,
Environmental Protection Agencyv Harris
and Company (located in
Chicago Heights,
Cook County).
This was an air pollution enforcement case involving a brass and bronze
foundry.
All hearings were conducted
at the John Marshall Law School by the late
Professor Melvin B. Lewis, Board Hearing Officer.
The report ofthe Hearing Officer
contains the following statement:
“Accordingly, the Hearing Officer reports that Mr. Wolfson was
substantially a less
credible witness than Mr.
Shinn.(misspelled)
The Hearing Officer does not believe that Mr. Wolfson’s testimony
should be rejected in its
entirety, but that any
conflict between his
and that ofMr.
Shinn should be resolved in favor of Mr. Shinn.”
3
13.
The Appellate Court ofIllinois,
First District,
Fourth Division rendered an opinion that
I was qualified to
offer expert testimony in an enforcement proceeding before the circuit
court
of Cook County.
See People v. Steelco, 22 Ill. App. 3d
582; 317 N. E.
2d 729
(1974).
Based on the Steelco opinion, I have provided expert testimony in a number of
other enforcement hearings before the Board and the Circuit Courts in Illinois.
To wit:
a.
In 1977,
I was assigned to assist in the litigation ofan enforcement case against a
hazardous chemical landfill own and operated by the Earthline Corporation
located in the Village ofWilsonville in
Macoupin County.
The trial hearings
lasted over a period of one year.
The court ruled in favor ofthe plaintiffs and
granted the relief that was requested in the complaint.
The court ordered the
defendants to exhume the waste buried in the trenches and restore the site to its
original condition.
The defendants appealed to the appellate court and
then to the
Illinois
Supreme Court.
In both cases the courts ruled against the defendants.
The
case demonstrates prospective nuisance because the pleadings alleged that the
landfill would not
contain the waste buried in the trenches as claimed by the
defendant.
The landfill was subsequently acquired by the SCA Services, and then
Waste Management Inc.
I coordinated the field investigation, conducted site
inspections,
collected numerous water samples, and coordinated the exploratory
excavation of a mine subsidence fracture to disprove the defendants’ claim that
these fractures tend to heal over time.
In addition, I provided testimony on the
field investigations, diagramed the trenches depicting the locations ofthe
drums
and their contents, and pointed out the potential for commingling of incompatible
chemicals. This case is part of a textbook being used in environmental law classes
to
teach nuisance.
I have spoken to environmental law classes on this point.
b.
I provided expert testimony in an air pollution enforcement case involving a
facility located in
the Village ofMontgomery,
Kane
County.
The facility
received, stored and processed anhydrous ammonia into aqueous ammonia.
Complaints from a
nearby industrial facility resulted in an inspection by the IEPA
and an enforcement referral to the Attorney General’s Office.
My expert testimony
presented in the Kane County Circuit Court identified the deficiencies in the
equipment
and listed recommendations made to defendants to remediate those
deficiencies.
c.
I provided expert testimony in
an enforcement case involving a tire grinding and
storage facility located in the Village of North Aurora, Kane County. Dense black
smoke from tire fires at that facility was visible many miles
away.
My expert
testimony centered on the chemical composition of the emissions from tire fires
and the propensity for re-ignition from spontaneous combustion of the oils that
exude from the tires
from the heat ofthe fire.
My testimony provided the
foundation for an IEPA toxicologist to testify on the potential adverse health
effects from the emissions offires
involving the incomplete combustion of
4
rubber.
d.
Provided expert testimony in an
enforcement case against Stonehedge, Inc.,
a de-
icing salt storage facility alleged to have exceeded the maximum allowable on
-
site storage limit of50,000 lbs.
The expert testimony was based on mathematic
calculations using estimated dimensions ofan irregularly-shaped storage pile
(provided by the Mc Henry County Health Department and the IEPA inspector)
and the published data on the bulk density and angle ofrepose ofde-icing
salt to
arrive at the approximate weight ofthe salt pile.
The
Mc Henry County circuit
court certified me as an expert in Material Handling Engineering.
The court and
the defendants accepted the results ofthe calculations without challenge.
e.
Provided expert testimony in an
odor nuisance enforcement case initiated by the
Attorney General’s Office involving a rubber mat manufacturer located in the
Village ofGenoa in De Kalb County.
The De Kalb County court certified me as
an environmental engineering expert and allowed my testimony to rebut the
testimony ofthe defendant’s consultant.
The court found that the defendant, the
Humane Manufacturing
Company, was the source of the odors that caused an
unreasonable
interference in the surrounding neighborhood and issued a cease and
desist order to
stop the odors.
The defendant
ceased operations in
Genoa and
moved their manufacturing operations
to
another plant in Wisconsin.
The
defendant also paid a penalty to the
State.
f.
Conducted a joint investigation and site inspection with the Cook
County State’s
Attorney’s Office in response to complaints of noise from the Vitran Express
(formerly Overland Transportation)) trucking terminal located in Palatine.
This
site was the subject ofcitizens’ complaint before the Board.
The Board issued an
order in docket PCB
98-81 for Vitran Express to
cease and desist from further
violations ofthe Act and Board regulations and to
implement an extensive and
comprehensive compliance program to abate
the noise from the operations ofthe
terminal.
The Board’s record indicated that three expert witnesses testified on
behalf ofcomplainants;
Greg Zak, Toni Thunder and Roger Harmon.
A
subsequent site inspection by the Attorney General’s Office discovered that the
truck terminal failed to implement the compliance program as required under the
PCB 98-8 1
Board order.
The Attorney General’s Office subsequently determined
that Vitran was re-locating its Palatine facility.
PRIVATE
SECTOR PROFESSIONAL ENGINEERING
EXPERIENCE
Vice-President of Sturm Engineers, Inc.,
Manager of the Mechanical Engineering Dept., and
Engineering Project Manager.
Was
responsible for the engineering design of the process equipment and systems at the Curtiss
5
Candy (Standard Brands) plant located in Franklin Park, Cook County.
(now owned by
Nestle)
Retained by the Kitchens of Sara Lee Bakery in Deerfield to
trouble-shoot and correct design
deficiencies in their automated bakery operations.
Retained by the Corn Products
Company to design the expansion oftheir corn steeping plant
in
Kansas City, KS., andreceivedmany assignments to provide the engineering design services for
their customers to install bulk storage and material handling systems for corn starch and corn
sugar.
Retained by the Kellogg Company ofBattle Creek, MI to provide the engineering services to
design a new cereal plant in Memphis, TN.
Retained by the Masonite Corporation to investigate the cause offrequent fires and explosions in
their board plant in Towanda, PA.
Submitted a report detailing
the cause and recommended
changes to
the process to mitigate the potential hazards.
6
CERTIFICATE OF SERVICE
I, JOEL J.
STERNSTEIN,
an Assistant Attorney General,
certify that on the
10th
day of March 2004,
I
caused
to be served
by First Class Mail the foregoing to the parties named on the
attached service list, by depositing same in postage prepaid
envelopes with the United States Postal Service located at 100
West Randolph Street,
Chicago, Illinois 60601.
JOEL J. STERNSTEIN