VILLAGE OF ROBBINS and

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

John J. Kim

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, IL 62794-9276

JUN 1 ~

STATE OF ILLINOIS

POI1~tion

Control Board

)

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60472

Charles F. Heisten

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

PLEASE TAKE NOTICE that I have today filed with the office ofthe Clerk ofthe

Pollution Control Board a REPLY TO RESPONDENT’S RESPONSE TO PETITIONERS

MOTION FOR SUMMARY JUDGMENT, copies ofwhich are herewith served upon you.

Respectfully submitted,

VILL4~GEOF ROBBINS,

One~the Petitioners

-“William H. ansker

Village3321

WestAttorne137

1

Street

Robbins, Illinois 60472

(708) 385-8940

RECEIVED

BEFORE THE POLLUTION CONTROL BOARD CLERK’S

OFFICE

Respondent.

)

Case No. PCB No. O4.~OW

)

(Permit Appeal)

)

)

)

NOTICE

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~ECE~VED

CLERK’S OFFICE

JUN 1 4

200k

BEFORE

THE

POLLUTION CONTROL BOARD

STATE OF ILLINOIS

OF

THE

STATE OF ILLINOIS

Pollution

Control Board

VILLAGE OF ROBBINS and

)

ALLIED WASTE

)

TRANSPORTATION, 11*TC.,

)

)

Petitioner,

)

)

Case No. PCB No. 04,OS

ILLINOIS

ENVIRONMENTAL

)

(Permit Appeal)

PROTECTION AGENCY,

)

)

Respondent.

)

REPLY TO RESPONDENT’S RESPONSE TO PETITIONERS’ MOTION FOR

SUMMARY JUDGMENT

NOW COMES the Petitioner, Village of Robbins, illinois, and Allied Waste

Transportation, Inc., by and through undersigned counsel of record, and hereby

respectfully submit their Reply to Respondent’s Response to Petitioners’ Motion for

Summary Judgment and states as follows:

I. RESPONDENT NOT

ABLE

TO

FIND ISSUES OF MATERIAL

FACT

There are none. The siting was approved by the Petitioner (Village) and the

permits were issued by the Respondent (JEPA) concerning the Robbins Resource

Recovery facility. The original siting and permitting covered a number of pollution

control activities at the site including collection, processing, sorting, storing, recycling

and disposing ofmunicipal solid waste (MSW). By making a request for modification of

the permit the Petitioner is not attempting to add a new activity that was not covered in

the original siting; it is modifying a permit concerning a function that was a pertinent part

ofthe original siting hearing.

The issue, simply stated, is whether issuing the permit

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would violate the Act. Respondent must at least reasonably identify a violation to afford

the Petitioner an opportunity to respond.

Respondent states that because the original

siting application was not submitted with the permit application, and thus the illinois

EPA did not have the benefit of the siting application at the time of its decision under

review, that it cannot determine if a violation would occur by issuing the permit

requested. Respondent’s Response. P. 3. In addition to the affidavit of Mayor Brodie,

who served as Clerk and/or Mayor during all relevant periods, the JEPA’s pleading

supports the Petitioner’s position that the modification would not result in a violation.

The IEPA had before it all the prior information concerning both its issued permits and

previous applications. The fact that these items were not physically attached to the

submission does not result in the Board having to ignore the history ofthe application by

the Petitioner. Alton Packing, 162 ill. App. 3”~at 738, 516 N.E. 2nd at 280, quoting

IEPA v. PCB, 115 III. 2”~’65,70(1986).

In his brief, counsel for the IEPA raises the “notes” ofthe illinois EPA’s Division

of Land Pollution Control (“DLPC”) as support that issues of fact exist. AR, p.55

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56.

But, rather than showing that an issue ofmaterial fact exists before the Board concerning

a modification ofpermit for the transfer stations, it demonstrates that the modification of

the permit to allow a transfer station operation is an insignificant modification to the

original siting.

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Specifically, DLPC identified a potential problem involved with the possibility

that the RRRC facility would include

the

operation

of a garbage

transfer

station,

and how such operation should be reconciled with a statutory set back for

suchoperations. (Emphasis added).

Thus, RRRC did not believe that any compliance with Section 22.14 ofthe Act

(415 ILCS 5/22.14) (which imposes a set back between transfer stations and

nearby dwellings) was relevant. AR p.56. Respondent’s Reply, p.3.

The IEPA’s memorandum makes clear that, but for the statutory setback, the

facility siting was for a transfer station and incinerator. The fact that the RRRC did not

need or desire to be sited as a waste transfer station at that time, in no way negates the

fact that the siting would also substantially qualify other buildings making up the facility

for additional pollution control uses. Based on this admissions by the Respondent, only

one issue, the setback, was not pursued concerning permitting for a transfer station. The

Petitioner was fully aware of the need for statutory set back as the local zoning board

permitted a zoning change that satisfied the statutory setbackrequirement. A new siting

could not result in any different conclusion based on the proposed operation at the

facility.

“Surely not every single design change, however slight; requires new local

siting proceedings. Such a complete lack of design flexibility is neither workable nor

required by the Act.” Saline County Landfill, Inc. v. Illinois EPA. April 18, 2002, PCB

02-108. In the application for modification, the Village appropriately addressed the

setback issue through a change in zoning approved by the Village Zoning Committee.

Because the setback issue was resolved prior to the application for modification, there

would be no violations of the Act by granting a permit based on the request for

modification.

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II. WASTE

INCINERATOR

ONLY

The IEPA asserts that because the term ‘transfer station” was not used in the title

to the hearings conducted by the siting authority, the request for a modification to the

permit must now go back through a completely new siting procedure, even though the

facility already is built and has the specific building been used to receive, sort, process

and treat MSW from its original day of opening. The receipt, recycling, storing,

processing and ultimate removal of MSW was fully anticipated and discussed at the

hearing originally conducted by the local siting authority. The waste handling activity

was conducted in a building separate and apart from the power generating building.

While connected by conveyor belts, there was no other significant physical connection to

the buildings. All of the participants at the public hearing were aware that MSW would

be received (up to 3000 tons per day)

,

processed, recycled (up to

25),

stored, and either

burned or sent off site (up to 400 tons per day). The same issues, with the exception of

the setback, that were evaluated and acted upon

at

the original siting would have been the

same issues if the transfer station was presented as the primary function ofthe facility at

that time. The Respondent’s approachwould send the Petitioners back through the costly

process when the only possible issue, setback, was addressed by the Village through its

Board of Zoning Review and the facility complies with the statutory setback.. No

different resultis possible.

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If each and every activity associated with a pollution control facility had to be

separately sited, it would be impossible to have fimctional pollution control facilities. If

each time it was necessary to go back to the start ofthe siting process, the cost of siting

would stall and impede any development of pollution control facilities in illinois.

According to the IEPA, “Generally, it takes at least three to five years to site and permit

new facilities in Illinois, perhaps longer in the Chicago area. Six years of capacity for

Region Two does not allow for any siting or permitting problems to arise.”

Nonhazardous Solid Waste Management and Landfill Capacity in Illinois: 2002. p. R2. 1.

Under Respondent’s theory, disposal of waste ash (from incineration) would need a

separate and distinct siting hearing under this interpretation because it was disposed ofin

a landfill and not incinerated. Waste unacceptable for fuel or recycling, which was sent

to landfill daily, would have needed a specific siting approval. Finally, the recycling

would have certainly needed to have been specifically sited for the permit because

recycling has nothing to do with the act of incineration. “The Board notes that if each

and every design change made in permitting a landfill expansion automatically meant the

redesigned expansion lacks local siting approval, the result could be a nearly endless loop

ofsiting, followed by permitting, followed by siting

ad nauseam”.

Ibid.

The scope of the siting hearing encompassed much more than merely siting an

incinerator. The PCB understood the scope of the operations and aptly described the

scope ofoperations in a 1992 proceeding before the PCB.

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RRRC originally requested (1988 Application) local siting approval from the

Village in June 1988 for a facility

to recover recyclable

materials and energy

from municipal solid waste. (j~iyet al v. Village of Robbins et al. (July 1,

1993), PCB

93-52,

PCB

93-54.

(Emphasis added).

What facts presented by Petitioner demonstrate that no violation of the Act would

occur ifthe permit was granted?

1.

That a full siting hearing was conducted concerning the facility including all

activities in the waste handling/ treatment/recycling and storage building and

the electric production building. The facility, which included both these

activities, received local siting approval and permits from the Respondent.

2.

Those during the siting hearing, issues related to MSW receipt, handling,

storage and disposal were fully before the siting authority and part of the

hearing process. All elements, with the exception of the setback issue,

(admitted in Respondent’s pleadings), that would involve siting a transfer

station were addressed.

3.

The Village Zoning Board allowed a zoning change, through its public hearing

process, that eliminated any barrier to permitting a transfer station.

4.

That the siting authority and owner, Respondent, entered into an Agreement

with Allied Waste Transportation to operate the facility as a transfer station.

The IEPA desires to add additional requirements to permit transfers not contemplated

by the legislature. The examples given by Respondent in their brief are at best confusing.

Petitioner is not attempting to turn the facility into a landfill or hazardous waste landfill

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orto permit an activity that had not previously been legitimately performed and permitted

at the facility. The magnitude ofchange used in the Respondent’s illustration is extreme

and unanticipatedby the Act and the regulations. In this specific case, the modification

is not ofsuch a nature to require re-siting, as determined by the local siting agency. “An

applicant that has been through local siting, an often expensive and time consuming

process, should not have to return to get new local siting approval for every single design

change without regard to the import ofthe change. Ibid. No additional siting is needed

when the facility is going to be substantially and materially the same and used as

originally proposed.

The Section 39.2(e) (5) agreement, entered into by the Village, is an appropriate

expression ofthe legislative intent ofthat section’s purpose ofallowing the “appropriate

govern, the Petitioner, the right to determinewhat activities are sited at a facility such as

this.

“However, any such conditions impose pursuant to this Section may be modified by

agreement between the subsequent owner or operator and the appropriate county

board or governing body.” 45 ILCS

5/1,

Section 39.2(e)

(5).

The Respondent wants to assume and usurp the responsibility ofthe local governing

body relative to siting. Respondent’s attempt to increase its jurisdiction over a local

sitingmatter would clearly grant to Respondent a role never intended by the Legislature.

One interesting aspects of this matter is that within the site there were a number of

pollution control activities going on at the site, but in separate buildings. While

incineration was the focus and most controversial process during the siting hearing,

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receiving MSW, collecting MSW, sorting ofMSW, recycling MSW, storing MSW and

disposal of MSW and other waste products in landfills was fully before the local siting

authority..

CONCLUSION

WHEREFORE, the Petitioners, VILLAGE OF ROBBINS AJ’TD ALLIED WASTE

TRANSPORTATION, INC. request this Honorable Board grant its Motion for Summary

Judgment and for such other and further relief as this Honorable Board deems just and

appropriate.

Dated: June 11, 2004

Respectfully Submitted,

VILLAGE OF ROBBINS and ALLIED

WASTE T

SPORTATION, iNC.,

Petitioner

y:

William H. Mansker

One ofthe Attorneys

William H. Mansker

Village Attorney

3327 West 137m Street

Robbins, illinois 60472

(708) 385-8940

Attorney # 20553

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