BEFORE THE ILLINOIS POLLUTION CONTROL BOARD STATE OF iLLINOIS
SERVICE LIST
9 COPIES and 1 ORIGINAL
Via U.S. Mail wit/i Exhibits
BEFORE THE ILLINOIS POLLUTION CONTROL BOARII
Printed on Recycled Paper
EXHIBIT

R~CE~VED

CLERK’S OFFICE

JUN 07 2004

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF iLLINOIS

__________________________________________

Pollution Control Board

UNITED DISPOSAL OF BRADLEY, INC.,

and MUNICIPAL TRUST & SAVINGS BANK,

as Trustee Under Trust 0799,

Petitioners,

No.

PCB

03-235

(Permit Appeal

Land)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

NOTICE

FILING

To:

Please see attached Service List

PLEASE TAKE NOTICE that on June 7, 2004, we filed with the Illinois Pollution

Control Board the following documents: (1) PETITIONERS UNITED DISPOSAL

BRADLEY, INC.’S AND MUNICIPAL TRUST & SAVINGS BANK’S MOTION

STRIKE THE

“PUBLIC

COMMENT” SUBMITTED

BY JOHN J. BEVIS,

copies ofwhich

are attached hereto and served upon you.

Dated: June 7, 2004

Respectfully submitted,

UNITED DISPOSAL OF BRADLEY, NC., and

MUNICIPAL TRUST & SAVINGS BANK, as

Trustee Under Trust 0799

Jennifer J. Sackett Pohlenz

David E. Neumeister

QUERREY & HARROW, LTD.

By:

175 W. Jackson Blvd., Suite 1600

One oft

attor e s

Chicago, Illinois 60604

Phone: (312) 540-7000

PROOF

OF SERVICE

I, Karen Gryczan,* a non-attorney, certify that I served the following documents on the

above referenced persons, by hand delivery and/or by depositing a copy in the U.S. mail at 175 W.

Jackson, Chicago, Illinois (with proper postage prepaid and addressed to the address shown on the

attached Service List, and/or at the facsimile number show on the attached Service List, as

applicable), at or prior to the hour of 4:30 p.m. on June 7, 2004, as referenced in the attached

Service List.

*Under penalties as provided by law pursuant to Ill. Rev. Stat. Chap.! 1O-~1~

I certily that the statements set forth herein are true and correct.

Printed on Recycled Paper

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UNITED DISPOSAL OF BRADLEY, INC.,

and MUNICIPAL TRUST & SAVINGS BANK,

as Trustee Under Trust 0799,

Petitioners,

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

No. PCB 03-235

(Permit Appeal

Land)

SERVICE LIST

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thomspon Center

100 West Randolph

Suite 11-500

Chicago, IL 60601

Via Hand Delivery

9 COPIES and 1 ORIGINAL

John J.Kim

Assistant Counsel

Special Asst. Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, IL 62794-9276

Via U.S. Mail wit/i Exhibits

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box 19274

Springfield, IL 62794-9274

Via U.S. Mail wit/i Exhibits

Joel J. Sternstein

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th

Floor

Chicago, Illinois 60601

Via

U.S.

Mail wit/i Exhibits

Carol Sudman, I-Iearing Officer

RECEWE~

CLERK’S OFFICE

65299-l’OlI

IUM 07 2Oflk

BEFORE THE ILLINOIS POLLUTION CONTROL BOARII

UNITED DISPOSAL OF BRADLEY, INC.,

pollutionSTATE OF

Control

ILUNOIS

Board

and MUNICIPAL TRUST & SAVINGS BANK,

as Trustee Under Trust 0799

No. 03-235

Petitioners,

(Permit Appeal

Land)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITIONERS UNITED DISPOSAL OF BRADLEY, INC.’S AND

MUNICIPAL TRUST & SAVINGS BANK’S

MOTION TO STRIKE THE “PUBLIC COMMENT”

SUBMITTED BY JOHN J. BEVIS

NOW COME the Petitioners, United Disposal of Bradley, Inc. and Municipal Trust &

Savings Bank as Trustee Under Trust 0799, and pursuant to

IAC 101 .628(c)(2), move the

Illinois Pollution Control Board (Board) to strike the “Public Comment” of John J. Bevis (PC

#1 6)(attached as Exhibit A hereto). The IPCB should this strike Mr. Bevis’ public comment,

which is marked on the attached Exhibit A, in its entirety because it contains evidence not

present in the record, consists of argument by an unidentified entity, and the Board is limited

in its review to the record on appeal. In further support, Petitioner states as follows:

1. Mr. Bevis’ comment presents essentially makes two references. The first is a legal

argument which ignores the fact that the subject facility is currently permitted. The second is

Mr. Bevis’ “awareness” of alleged “apparent violations.” Neither of these references is

appropriate for public comment.

In fact, in this very matter and from another County

employee, Mrs. Wheeler, the Board struck alleged “public comment” referencing the County

Printed on Recycled Paper

Icaith l)eparlment’s allegations concerning a notice of violation. Thereflwe, this Motion

should be granted and Mr. Bevis’ comment stricken.

2. As respects the Iirst issue, Mr. Bevis pp~~•en~yintends to submit his written

comment on behalf of the Illinois Environmental Protection Agency (IEPA). He references his

“authority” with JEPA and he signs his name as a representative of IEPA. As such, the

comment is completely inappropriate and should he stricken. IEPA is. a party (Respondent) in

this proceeding and cannot be represented by an individual and, further, cannot submit a

written comment, thus, Mr. Bevis’ coniment should thus he stricken, as it violates Board Rules

Section 101.400 and 101.628(c), at least to the extent it references the IEPA or his “authority”

with the Agency,

3. However, regardless of the vagaries surrounding Mr. Bevis’ submittal and authority

or lack thereof for it, it is an inappropriate comment and should be stricken as there is

evidence in the record regarding the distinction between a facility that accepts its own waste

versus one that accepts wastes generated oil-site and there is

evidence in the record

concerning and it is irrelevant to this proceeding what is the “future plan for solid waste

in F~nnk.akceCounty”. (flevi~

Comment

p. 2). The Illinois Envirotimenthi Protection

Act requires that the decision of the IPCB “shall be based exclusively on the

record

compiled

in the Agency proceeding.”

(415 ILCS 5/40(c))(emphasis added). All public comments that

arc

501)111

Itied

a tier a

henri ng mist liC~lit ai’~tiiflents OV Ct)l tifliclits 1)llCd

Oil CV

ide 11CC

nitaliicd In ilte ,ec~nd Aiim, Bottom Coimservuimey, ci at,

Villn~c

of Utilintotit

City, et at.,

PCB No.

01-159,

(October 18, 2001)

(quoting

415 ILCS

5/40.1(b)

(2000)

(citing

35 Ill.

Adm. Code 101 .628(c)(2)).

Printed on Recycled Paper

4. Further, even if the Board were to consider Mr. Bevis’ argument, it has to be

rejected, as

is simply a diversion argument from the core issues in this proceeding the

permit condition at issue is an unconstitutional restriction of commerce and th~time limitations

for a finding of “incompleteness” were not met by the Agency. Mr., Bevis’ argument that

facilities accepting waste from off-site have to go through. siting, ignores the fact that (a) this is

a legally permitted facility; (b) after this facility obtained its

permit, the provisions of the

Illinois Environmental Protection Act underlying the inclusion of condition at issue in this case

were minanThiguously declared unconstitutional by. the District Court in Iennsv; (c) the

government cannot, legally, impose the type of restriction on commerce as is found in the subject

permit

(see,

Fort Gratiot Landfill v. Michigan Dept. ofNatural Resources, 504 U.S.

353,

11.2 S.

Ct. 2019 (1992); Tcnnsvjnc. v. Gade, Nos.. 92 503 WLB & 92

522

WLB, .1993 U.S. Dist.

LhXIS 1.0403 (S.l). Ill. July 8, 1993); Northwest Sanitary I ~andlill,Inc v. South Carohnn l)ept.

of Health and Envtl. Controhet al., 843 F. Supp. 100 (D. S.C. 1992); Ecological Svs~,Inc. v.

City ot’ Dayton, 2002 Ohio 388, 2002 Ohio App.

1,FXIS

354 (Ohio (TI, App. 1992), opp

denied,

2002 Ohio 2852, 769 N.E.2d 873 (2002)); (d) nothing about the permit modification sought by

PcIit i~ncrs 1mm Respondent triggered siting I~rthis

already permittc(l Ilicility

(i.e.,

ji isn’t a

“news’ pollution control facility and it iS not an “expansion” under the Illinois l~nvironmental

Protection Act); and, (e), it runs albul of the legal precedent protecting vested rights, from a

~I;~g~

thc l~iwIhi~e,ltintol Aimn~,iuLImimMLuim’mi,au’~v. Aimtmtt~tmd, Ill III ).I ~U),l~~(;’IIi I~).I

to ~i t.

l’~ao~

Llm~immm~~~

lilL. ‘~.

l’olluthni L•~u1mullh~nd.

•~/

III ~

~l’l.

o~H.tI1

isi ‘n-.I

99’I );

ci 41/.,

I /

I.~ipp.!d

1111(1

(N.D. IL 1.998)).

I’rinted on Recycled Paper

As respects the second issue, Bevis’ reference to his “awareness” of an alleged

“apparent violation” for which “enforcement is being pursued,” the Board previously

considered this issue and granted that portion of Petitioners’ Motion to Strike that related to the

“apparent violations” that are vaguely referenced in Mr. Bevis’ comment when it ruled, on

August 21, 2003, that a specific notice letter that sent by the Kankakee County Health

Department to United Disposal of Bradley, Inc. and was attached to a Ms. Wheeler’s “public

comment” was not in the record and, thus, was stricken from the record.

A copy of the

Board’s August 21, 2003, Order is attached hereto as Exhibit B.

WHEREFORE, Petitioners United Disposal of Bradley, Inc. and Municipal Trust &

Savings Bank, as Trustee under Trust 0799 respectfully requests the Illinois Pollution Control

Board to strike the “public comment” of Mr. Bevis submitted as “Public Comment” No. 16. In

the alternative, Petitioners respectfully request the Illinois Pollution Control Board to strike the

following sentences in the comment:

“In my capacity as Illinois EPA Delegated Authority in Kankakee

County, I am very familiar with the rules and regulations

governing pollution control facilities,”

and

‘Interestingly, and without waiving their rights that such information should not be included in the record, the

“apparent violations” that at least these two individual employees of the County attempt to prejudice the record

with, are rooted in an allegation that United Disposal of Bradley, Inc. allowed a truck to unload at the transfer

station which picked up waste from two households located within the jurisdictional limit of Bradley, but just

barely outside its municipal corporate limits and a local university similarly geographically located. Additionally,

the “apparent violations” relate to documentation sought by Bevis from United Disposal of Bradley, Inc., that

Bevis would like to use to pursue and, presumably further investigate, his claim that United Disposal of Bradley,

Inc. accepted waste from outside one but inside another “boundary” of the Village of Bradley, such as United

Disposal of Bradley, Inc.’s confidential and privileged customer list, which is not required under any State Law to

be “turned over” to the government. The “apparent violations” do

not

concern the manner or method in which

United Disposal of Bradley, Inc. actually, physically operates the transfer station; only the origin of alleged

incoming waste.

Printed on Recycled Paper

“As the delegated inspector for Kankakee County, I and the Des

Plaines Regional Office of the IEPA are aware of apparent

violations at the site for which enforcement is being pursued,”

and

“While various appeals on the siting

. . .

receiving any permit to

expand operations”,

and

“IEPA Delegated Inspector” located under Mr. Bevis’ signature.

Dated: June 7, 2004

Respectfully Submitted,

PETITIONERS UNITED DISPOSAL OF

BRADLEY, INC., and MUNICIPAL TRUST &

SAVINGS BANK, as Trustee Under Trust 0799

By:____

On(~iheirat(~rIe1s

Jennifer J. Sackett Pohlenz

David E. Neumeister

QUERREY & HARROW,

LTD.

175 W. Jackson, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorneys for Petitioners

Illinois Attorney Nos. 6225990 & 6207454

Printed on Recycled Paper

•

KANKAKEE COUNTY

2390 WestStationStreet

u—i~*a..—r’u—i

Kankakee, IllInois 6090 1

DEPAFTIVIENT.

fax 815-937-3568

J1~CEIV~D

CLERK’S OFFICE

May 20, 2004

MAY 2 ~2OO4

STATE OF ILLINOIS

Pollution Control Board

J. Philip Novak, Chairman

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, IL 60601

Dear Chairman Novak:

RE: PCB Case 03-23

I am writing this letter to voice my concern regarding United Disposal ofBradley, Inc.’s

transfer station pennit modification request.

In my capacity as Illinois EPA Delegated Authorityin Kankalcee County, I am very

familiar with the rules and regulations governing pollution control facilities. It is clearly

stated in the Illinois Environmental Protection Act that “any person conducting a waste

storage, waste treatment, waste disposal, waste transfer or waste incineration

operation for

wastes generatedby such person’s own activities,

when such wastes are

stored, treated, disposed of, transferred orincinerated within the site or facility

owned, controlled, or operated by such person or when such wastes are transported

within or between sites or facilities owned, controlled or operated by such person” is

not subject to local siting as a pollution control facility.

However, in this case, United Disposal would ,not be generating. waste due to his own

activity. United Disposal would be collecting and traflsferring waste from sites outside

the Village ofBradley, owned by other people, with wastes generated by other people’s

activities. The facility would then become a pollution control facility by definition once

it takes wastes outside ofBradley, Illinois. Such amendment to its service area without

going through local siting is a clear violation oflaw, and grantingthis permit

modification request would set an undesirable precedent for other pollution control

facilities to follow.

As the delegated inspector for Kankakee County, I and the Des Plaines Regional Office

ofthe EPA are aware ofapparent violations at the site forwhich enforcen~entis being

pursued.

. •

J. Phillip Novak

May 20, 2004

Page 2

While various appeals on the siting of two pollution control facilities (municipal solid

waste landfills) within Kankakee County are pending and thereis uncertainty as to the

future plan for solid waste disposal within this County, this does not take away from the

fact that United Disposal must go through local siting approval before receiving any

permit to expand operations.

It is my recommendation to deny the consideration to deviate from the original conditions

ofthe permit without going through the proper process ofsiting and hearings for the

public’s interest and concerns.

Thank you in advance for the Board’s consideration ofmy comments.

Sincerely,

J. Bevis

EPA Delegated Inspector

Kankaicee County Health Department

JJB:scv

Cc:

Ed Smith, State’s Attorney Ofc.

Mike Van Mill, Kankakee

Co.

Planning & Zoning

ILLINOIS POLLUTION CONTROL BOARD

August 21, 2003

UNITED DISPOSAL OF BRADLEY, INC.,

)

and MUNICIPAL TRUST & SAVINGS

)

BANK as trustee under Trust 0799,

)

Petitioners,

)

PCB

03-235

)

(Permit Appeal

Land)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

ORDER OF THE BOARD (by N.J. Melas):

On June 19, 2003, United Disposal of Bradley, Inc., and Municipal Trust & Savings

Bank, as Trustee under Trust 0799 (petitioners), timely filed a petition asking the Board to

review a May

15,

2003 determination of the Illinois Environmental Protection Agency (Agency).

See 415

ILCS

5/40(a)(1)

(2002); 35111. Adm. Code

105.206(a).

On June 26, 2003, Ms. Barbara

Wheeler filed a public comment in this matter. On July 10, 2003, petitioners filed a motion to

strike Ms. Wheeler’s comment. There has been no response to this motion, but the Agency filed

the administrative record in this proceeding on August 14, 2003. For the reasons set forth below,

the Board grants petitioners’ motion to strike in part and denies the motion in part.

Ms. Wheeler attached several documents to her public comment including a notice of

violation letter sent by the Kankakee County I-Iealth Department (KCHD) addressed to Mr. Mike

Watson of United Disposal of Bradley, dated March 3, 2003. The remaining documents are

identical to those attached to the petitioners’ petition as Exhibit B. The remaining documents

were part of the Agency’s administrative record. Petitioners have not waived the hearing in this

matter and the decision deadline is November 26, 2003.

Petitioners move to strike Ms. Wheeler’s public comment, including all attachments, on

the grounds that it contains evidence not present in the record and because the Board is limited to

the record on appeal. Petitioners state that the Environmental Protection Actlimits the Board’s

review to the “record compiled in the Agency proceeding.” Mot. at 1; citing

415

ILCS

5/40(c).

The petitioners state that Section l0l.628(c)(2) of the Board procedural rules specifically limits

the scope of public comments to arguments or comments “based on the evidence contained in the

record.” Mot. at 1; citing 35 III. Adm. Code 101 .628(c)(2). Finally, petitioners cite to Board

precedent for the principle that public comments submitted after hearing must presentarguments

or comments based on evidence contained in the record. Mot. at 1; citing American Bottom

Conservancy,

eta!.

v. Village of Fairmont City,

eta!.,

PCB 01-159 at 15 (Oct. 18, 2001).

EXHIBIT

Although the petition in American Bottom is an appeal ofa local siting approval, and the

petition here is an appeal of a permit denial, the principle remains the same. As with reviews of

local siting approvals, the Board must base hearings in permit appeals exclusively on the Agency

record, and any public comments submitted in permit appeals must present arguments or

comments based on evidence contained in the record. 35 Ill. Adm. Code 101 .628(c)(2);

105.214(a).

The Board accepts all ofMs. Wheeler’s public comment except the notice of violation

letter sent to United Disposal of Bradley by the KCHD on March 3, 2003, and any references to

that letter. Ms. Wheeler’s letter contains her opinions and comments regarding the petitioners’

facility in Bradley. The Board accepts Ms. Wheeler’s letter excluding any references to the letter

from KCHD to United Disposal of Bradley. Additionally, all of the documents except the

March 3, 2003 letter from the KCHD were submitted both as Exhibit B ofthe petitioners’

original petition as well as part ofthe Agency’s administrative record. The Board accepts all of

the attached documents except the March 3, 2003 letter from the KCHD.

The Board finds that the only new evidence not found in the record before the Board is

the March 3, 2003 letter from the KCHD to United Disposal of Bradley. Accordingly, the Board

grants the petitioners’ motion to strike only as to the KCHD letter and any references to that

document contained in Ms. Wheeler’s letter. The Board denies the petitioners’ motion to strike

the rest of Ms. Wheeler’s public comment.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on August 21, 2003, by a vote of7-0.

o~_

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board