RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR 1 3 2007
AMERICAN BOTTOM CONSERVANCY,)
and
SIERRA CLUB,
STATE
OF ILLINOIS
)
Pollution Control Board
Co-Petitioners,
)
v.
)
PCB 07-84
(Pollution Control Facility
CITY OF MADISON, and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.,
)
Respondents
.
)
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that on April 13, 2007, we filed with the Illinois Pollution
Control Board, the attached Waste Management of Illinois, Inc .'s APPEARANCE in the above
entitled matter.
WASTE MANAGEMENT OF ILLINOIS, INC.
By:
Donald J . Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney Registration No. 1953923
453651
.1
Donald J . Moran
PEDERSEN & HOUPT
161
North Clark Street
Suite 3100
Chicago, Illinois 60601
Telephone : (312) 641-6888
453648 .1
Co-Petitioners,
Respondents
.
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
APR 9 3 2001
AMERICAN BOTTOM CONSERVANCY, )
STATE OF ILLINOIS
and SIERRA CLUB,
Pollution Control Board
v.
)
PCB 07-84
(Pollution Control Facility
CITY OF MADISON, and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC .,
)
APPEARANCE
Now comes WASTE MANAGEMENT OF ILLINOIS, INC
., by one of its attorneys,
Donald J
. Moran of Pedersen & Houpt, and hereby enters its appearance in the above-referenced
matter regarding the Petition for Review of Pollution Control Facility Siting Approval filed by
American Bottom Conservancy and Sierra Club, and gives notice that it intends to participate in
the hearings thereon .
Respectfully submitted,
WA
MANAGEMENT OF ILLINOIS, INC.
By:
Donald J . Moan
One of Its A orneys
CERTIFICATE OF SERVICE
I, Donald J . Moran, an attorney, on oath state that I caused a copy of the foregoing
APPERANCE to be served on the following parties :
Bruce A. Morrison
Great Rivers Environmental Law Center
705 Olive Street, Suite 614
St. Louis, MO 63101-2208
John T. Papa
Callis, Papa, Hale, Szewczyk & Danzinger
1326 Niedringhaus Avenue
Granite City, IL 62040
by depositing same in the U .S
. mail at 161 N. Clark St ., Chicago, Illinois 60601, on or before
5
:00 p
.m
. on this 13th day of April, 2007 to the addresses indicated above .
453648 . 1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARIRECEIVED
LERK
;S
OFFICE
APR
1 3 2007
AMERICAN BOTTOM CONSERVANCY, )
STATE OF
ILLINOIS
and SIERRA CLUB,
)
Pollution Control Board
Co-Petitioners,
)
v.
)
PCB 07-84
(Pollution Control Facility
CITY OF MADISON, and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC
.,
)
Respondents .
)
ANSWER OF WASTE MANAGEMENT OF ILLINOIS, INC
.
TO PETITION FOR REVIEW
Waste Management of Illinois, Inc.,
by its attorneys Pedersen & Houpt, answer
the Petition for Review of Pollution Control Facility Siting Approval as follows
:
Jurisdiction and Venue
1 .
American Bottom Conservancy (ABC), an Illinois not-for-profit corporation, is a
volunteer, grass-roots organization based in metropolitan East St
. Louis, Illinois. ABC works to
protect Illinois natural and cultural resources, with particular emphasis on wetlands and the
American Bottom floodplain of the Mississippi River
. A primary concern of ABC is the
preservation of natural areas and the environment in and around Horseshoe Lake State Park and
Cahokia Mounds World Heritage Site
. ABC is also committed to the proper siting and operation
of solid waste disposal facilities
.
ANSWER
: Waste Management of Illinois, Inc
. ("WMII") lacks knowledge sufficient
to admit or deny the allegations contained in paragraph 1
.
2 .
ABC is a membership organization
. ABC members travel on roads, walk trails,
observe nature, and fish in the vicinity of the proposed landfill and would be impacted by the
noise and smells emanating from the landfill and the possible contamination by the landfill of
Horseshoe Lake
. Further, ABC has Native American members who would be negatively
452739
. 1
impacted by the construction of a landfill where Indian remains and mounds have been
found-on land they consider sacred .
ANSWER: WMII lacks knowledge sufficient to admit or deny the allegations
contained in paragraph 2 .
3.
ABC and its members participated in the public hearing before the City of
Madison
. ABC brings this petition for review to redress its injuries and the injuries to its
members.
ANSWER
: WMII lacks knowledge sufficient to admit or deny the allegations
contained in paragraph 3 .
4.
Sierra Club is a nonprofit corporation incorporated under the laws of the State of
California
. Sierra Club is a membership organization, composed of more than 700,000 members
nationally, and more than 26,000 members in the State of Illinois . From its founding in 1892,
Sierra Club has been actively engaged in efforts to preserve the natural values of the Mississippi
River and its adjoining floodplains
. These interests of Sierra Club and its members will be
adversely affected by the City of Madison's approval of the application .
ANSWER: WMII lacks knowledge sufficient to admit or deny the allegations
contained in paragraph 4 .
5.
Members of the Sierra Club Kaskaskia and Piasa Palisades groups participated in
the public hearing before the City of Madison . Sierra Club files this petition for review on its
own behalf and on behalf of its members.
ANSWER: WMII lacks knowledge sufficient to admit or deny the allegations
contained in paragraph 5
.
Respondents
6.
Respondent City of Madison, Illinois, approved the Application for siting
approval for the North Milam Recycling and Disposal Facility .
ANSWER: WMII admits the allegations contained in paragraph 6 .
452739 .1
-2-
7.
Respondent Waste Management of Illinois, Inc ., is the applicant .
ANSWER:
WMII admits the allegations contained in paragraph 7 .
Proceedings before the City of Madison
8.
On September 22, 2006, Respondent Waste Management of Illinois, Inc
. ("WMII"
or "Applicant"), filed an application with the City of Madison for siting approval pursuant to
ยง39 .2 of the Act of a pollution control facility, specifically an expansion of WMII's Milam
Recycling & Disposal Facility located in Fairmont City, St . Clair County, to be called "North
Milam," located in the City of Madison, Madison County, Illinois .
ANSWER: Under proceedings before the City of Madison, WMII admits the
allegations contained in paragraph 8 .
9.
The proposed landfill site is within 2100 feet of the Cahokia Mounds National
Historic Landmark boundaries
. Cahokia Mounds is a UNESCO World Heritage Site as well as a
state historic site
. Cultural artifacts, Indian mounds and an ancient skull have been found on and
around the site of the proposed landfill
.
ANSWER: WMII admits that the Cahokia Mounds is a UNESCO World Heritage Site
as well as a state historic site . WMII denies the remaining allegations contained in paragraph 9 .
10.
The proposed landfill is to be located on 18 acres of wetlands
.
ANSWER: WMII denies the allegations contained in paragraph 10 .
11 .
The area surrounding the proposed landfill includes Horseshoe Lake State Park
and Lake, visited by 360,000 people annually and used for both recreational and subsistence
fishing, walking and nature trails, and a campground
. There is open space, farmland, wetlands
and Eagle Park Marsh-listed on the Illinois Natural Areas Inventory
.
ANSWER: WMII lacks knowledge sufficient to admit or deny the allegations
contained in paragraph 11 .
452739 .1
-3 -
2006.
452739 . 1
12.
A public hearing was held on the Application on December 21 and 22,
ANSWER:
WMII admits the allegations contained in paragraph 12
.
13 .
On February 6, 2007, the Aldermen of the City of Madison approved the
Application
. According to the Deputy City Clerk, the City's written decision is set forth in the
minutes of the Madison City Council meeting of February 6, 2007, and that there is no other
written decision or ordinance of the City concerning the Application
. The minutes of the
Madison City Council meeting of February 6, 2007, are attached to this petition as Ex
. 1 .
ANSWER:
WMII admits that the City of Madison approved the Application on
February 6, 2007
. WMH lacks knowledge sufficient to admit or deny the remaining allegations
contained in paragraph 13 .
Count I - Fundamental Fairness
14.
Co-petitioners incorporate by reference paragraphs I through 13 above
.
ANSWER
:
WMII restates and incorporates by reference its answers to paragraphs 1 -
13.
15 .
The proceedings of the City of Madison, including the City's pre-hearing, hearing,
and post-hearing procedures, and the City's decision-making process, as well as the action of the
City taken on February 6, 2007, were defective, unlawful, and not fundamentally fair for reasons
including those set forth below
.
ANSWER:
WMII denies the allegations contained in paragraph 15
.
16 .
On June 13, 2006, the City of Madison passed Ordinance 1670 governing the
procedures for a public hearing for siting a pollution control facility
. The City did not make the
ordinance available for inspection and copying online or at any public library but, instead, sought
to charge the public an excessive amount to obtain a copy
. The sums that the City sought to
charge the public for access to the ordinance and for other documents is not in accordance with
fundamental fairness or fair public process
. Further, in light of the excessive sum the City sought
to charge for a copy of Ordinance 1670, the City should have borne the burden of including
Ordinance 1670 within the record .
-4-
ANSWER
:
WMII admits that on June 13, 2006, the City of Madison passed
Ordinance 1670
. WMII denies the remaining allegations contained in paragraph 16
.
17.
Before the public hearing, the City gave to ABC and Sierra Club inaccurate
information about the manner in which the City would conduct the public hearing
. Further,
before and during the hearing, the City repeatedly changed its rules governing the conduct of the
proceedings and improperly excluded evidence offered by ABC and Sierra Club
. These actions
of the City negatively affected the manner is which co-petitioners examined witnesses at the
hearing, and negatively affected the ability of ABC and Sierra Club to make a full record for
review.
ANSWER
:
WMII denies the allegations contained in paragraph 17
.
18 .
At the hearing petitioners sought to cross-examine Waste Management's expert
on compatibility about the archeological findings, but were told archeology was not a part of the
siting process
. Further, Native Americans testified during the public hearing in opposition to the
application
. Further, letters from the Powell Archaeological Research Center and the Cahokia
Archaeological Society were submitted to the City during the public comment period opposing
the siting approval
. Also submitted during the public comment period was a letter from the firm
hired as archeological consultant by Waste Management, accompanied by a lengthy report
. The
day after the City Council voted to approve the Application, the City's Mayor wrote the two
archeological organizations stating that the City reviewed the material provided by the consultant
and that the report contradicted the contentions of the archeological organizations
. By submitting
the report after the close of the public hearing, petitioners were unfairly denied the opportunity to
examine the material and cross-examine the consultant producing the report, and to rebut the
conclusions of the report
.
ANSWER
:
WMII denies that by submitting the report after the close of the public
hearing, petitioners were unfairly denied the opportunity to examine the material and cross-
examine the consultant producing the report, and to rebut the conclusions of the report
. WMII
admits the remaining allegations contained in paragraph 18
.
19.
At the hearing petitioners sought to examine Waste Management's consultant on
the compatibility of the proposed facility and the wetlands at the site, but were told that wetlands
was not part of siting
. Yet, after the close of the public hearing, Waste Management's wetlands
consultant submitted a letter and a lengthy report on wetlands during the public comment period
.
452739
.
1
-5-
Petitioners were unfairly denied the opportunity to examine the material and cross-examine the
consultant producing the report.
ANSWER:
WMII denies that petitioners were unfairly denied the opportunity to
examine the material and cross examine the consultant producing the report
. WMII denies that
the wetlands consultant submitted a lengthy report on wetlands during the public comment
period
. WMII admits the remaining allegations contained in paragraph 19
.
20.
The City of Madison failed to respond, weigh, or otherwise acknowledge
opposing views, comments and facts offered in opposition to the application
.
ANSWER:
The allegation contained in paragraph 20 is a legal conclusion to which an
answer is neither necessary nor appropriate
.
21 .
By merely voting to approve the application and failing to put in writing the
reasons for its vote, the City of Madison failed to create an adequate record of its decision
.
(Petitioners recognize that the action by the City of Madison does not fulfill the regulatory
requirements for siting approval
.)
ANSWER
:
WMII denies the allegations contained in paragraph 21
.
Relief Requested
Wherefore, American Bottom Conservancy and Sierra Club respectfully request that the
Illinois Pollution Control Board set this matter for hearing and discovery, that the City of
Madison's approval of the application be reversed and the application denied, and for such other
and further relief as the Board deems just and appropriate
.
Count II -
Failure to Meet Siting Criteria
22.
Co-petitioners incorporate by reference paragraphs 1 through 21 above
.
ANSWER:
WMII restates and incorporates by reference its answers to paragraphs
452739.1
-6-
1-21 .
23 .
The City's approval of the application is against the manifest weight of the
evidence for the reasons set out below
.
ANSWER
:
WMII denies the allegation contained in paragraph 23
.
24
. The landfill is not necessary to accommodate the waste needs of the area it is
intended to serve because landfill capacity in the Metro East increased 28 per cent from the
previous year, providing enough capacity for the area for the next 19 years
.
ANSWER
: WMII denies the allegation contained in paragraph 24
.
25 .
The facility is not located so that the public health, safety and welfare will be
protected because :
A.
The landfill would be located in the American Bottom floodplain, adjacent to the
Cahokia Canal, less than three miles from the Mississippi River
;
B .
The landfill would be located on soils that have severe restrictions for a sanitary
landfill;
C.
The site is in the New Madrid Fault Zone
;
D .
The landfill would be located on fragile soils subject to liquefaction
;
E
.
The proposed site is within 2000 feet of Horseshoe Lake State Park and the lake
itself, where there is both recreational and subsistence fishing, hunting,
picnicking, camping and walking and nature trails
;
F.
The base of the landfill would sit virtually on top of the water table
;
G .
There is the potential for groundwater contamination that could migrate to
Horseshoe Lake, the Cahokia Canal and the river
; and
H .
Toxic and noxious gases emanating from the landfill could easily impact visitors
to the state park, which sits immediately downwind of the proposed landfill
.
ANSWER:
WMII denies the allegations contained in paragraph 25
.
26 .
The facility is not located so as to minimize incompatibility with the character of
the surrounding area and to minimize the effect on the value of the surrounding property because
the area surrounding the proposed landfill includes Horseshoe Lake State Park and Lake, visited
by 360,000 people annually and used for both recreational and subsistence fishing, walking and
nature trails, and a campground
. There is open space, farmland, wetlands and Eagle Park
Marsh-listed on the Illinois Natural Areas Inventory
. Further, the proposed site is just 2100 feet
from the Cahokia Mounds National Historic Landmark boundaries, a National Historic
452739 .1
-7-
Landmark and State Historic Site and an important American Indian Cultural center that has been
designated by UNESCO as a World Heritage Site and is an important Illinois tourist attraction,
Further, surveys conducted preliminary to the filing of the Application produced evidence of
ancient human remains, pre Columbian mounds and other features that are eligible for inclusion
on the National Register of Historic Places .
ANSWER: WMII denies the allegations contained in paragraph 26
.
27.
The evidence in the record is insufficient to show that the proposed facility is
outside of the floodplain .
ANSWER:
WMII denies the allegations contained in paragraph 27 .
Wherefore, WMII respectfully requests that the Illinois Pollution Control Board deny the
relief requested in the Petition for Review, affirm the decision of the City of Madison granting
site location approval, and award such other and further relief as the Board deems just and
proper .
Res tfully submitted,
WA
MANAGEMENT OF ILLINOIS, INC.
By:
Donald J . Moran
PEDERSEN & HOIJPT
161 N. Clark Street, Suite 3100
Chicago, Illinois 60601
312/641-6888
452739 .1
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