RECEIVEDCLERK'S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MAY 1 6 2007

ROCHELLE WASTE DISPOSAL,

L .L.C.,

)

Pollution

STATE OF

Control

ILLINOISBoarBoard

Petitioner,

)

v.

)

PCB No. 61 .Il~

THE CITY OF ROCHELLE, an ILLINOIS

)

MUNICIPAL CORPORATION and THE

)

ROCHELLE CITY COUNCIL,

)

Respondents.

)

NOTICE OF FILING

TO:

All Counsel of Record (see attached Service List)

PLEASE TAKE NOTICE

that on May 15, 2007, the undersigned filed with the Illinois

Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, an original and

nine copies of its Petition for Review, copies of which are attached hereto

.

Dated:

Charles F . Helsten

Hinshaw & Culbertson LLP

100 Park Avenue

P.O . Box 1389

Rockford, IL 61105-1389

815-490-4900

This document utilized 100% recycled

paper products .

70525327v1 871956

---

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,

Illinois, proper postage prepaid, before the hour of 5 :00 p.m ., addressed as above .

HINSHAW & CULBERTSON LLP

100 Park Avenue

P

.O

. Box 1389

Rockford, IL 61105-1389

(815) 490-4900

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil

Procedure, hereby under penalty of perjury under the laws of the United States of America,

certifies that on May 15, 2007, she served a copy of the foregoing upon :

:I. ,.

I / 0' l

/,

70525334v1 871956

Mr. Bruce McKinney

City of Rochelle

420 N .

6th

Street

Rochelle, IL 61068

Alan Cooper, Esq

.

Attorney at Law

233 E . Route 38, Ste . 202

P.O. Box 194

Rochelle, IL 61068

Glenn Sechen, Esq .

Schain Burney Ross & Citron Ltd

222 N. LaSalle St ., Suite 1910

Chicago, IL 60601

David Tess, Esq .

Tess & Redington

1090 N

. Seventh St .

P.O. Box 68

Rochelle, IL 61068

Don Moran

Pedersen & Houpt

161 N

. Clark St ., Suite 3100

Chicago, IL 60601-3142

Emily Vivian

David Wentworth II

Hasselberg, Williams, Grebe

124 S .W. Adams St., Ste. 360

Peoria, IL 61602-1320

John McCarthy

45 East Side Square, Suite 301

Canton, IL 61520

---

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAIIJE C E

IV E C

LERK'S OFFICE

MAY 1 & 2001

Pollution

STATE OF

Control

ILLINOISBoard

ROCHELLE WASTE DISPOSAL, L.L.C .,

vs.

Petitioner,

THE CITY OF ROCHELLE, an ILLINOIS

MUNICIPAL CORPORATION and THE

ROCHELLE CITY COUNCIL,

Respondents .

PCB No. ~~

PETITION FOR REVIEW

NOW COMES Rochelle Waste Disposal,

L.L .C.,

Participant in the above-mentioned

local siting matter, and petitions this Honorable Board for review of certain actions taken by the

Rochelle City Council in this matter, and, in support thereof, states as follows

:

1 .

That on or about October 16, 2006, the City of Rochelle ("City") filed an

application for local siting approval for the expansion of Rochelle Municipal Landfill in the City

of Rochelle, Illinois .

2.

As defined by Section 39.2(c)

of the Illinois Environmental Protection Act

("Act"),

the City Council of the City of Rochelle ("City Council") was the governing body who

considered that request for local siting approval for a new pollution control facility within the

City of Rochelle, Illinois

.

3 .

Rochelle Waste Disposal, LLC, is the current operator of the Rochelle Municipal

Landfill .

Moreover, pursuant to the terms of the Host Agreement executed by and between

Rochelle Waste Disposal and the City, Rochelle Waste Disposal would continue to be the

operator of the expanded facility, that facility contemplated to be developed in part on certain

land owned by the Petitioner herein

. Further, a true and accurate copy of the Host Agreement

70525227v1 871956

---

that was attached to the Application filed in this siting proceeding by the City is marked Exhibit

"A" and attached hereto and incorporated herein by this reference .

4.

Hearing on such application for local siting approval was held in timely fashion,

and, thereafter, the Rochelle City Council met to consider action on such application for local

siting approval pursuant to Section 39 .2(e) of the Act, and rendered certain findings in that

regard, whereby site location approval was granted for the facility, but with numerous conditions .

Further, that a true and accurate copy of Resolution R-07-10 (passed by the City Council of the

City of Rochelle on the I 1 `h day of April, 2007 and subsequently published in pamphlet form by

the City Council of the City of Rochelle on April 12, 2007) and is marked Exhibit "B" and

attached hereto and incorporated herein by this reference.

5 .

The City of Rochelle had also adopted a siting ordinance for pollution control

facilities ("Local Siting Ordinance") . This Local Siting Ordinance applies to this process to the

extent it sets out procedures and requirements that are consistent with the Act, and supplements,

(rather than supplants) the requirements of the Act .

6 .

That Local Siting Ordinance, in pertinent part, at Section 78-77(c) provides for

reconsideration of the City Council's decision on an application for local siting approval

. In that

regard, Rochelle Waste Disposal, LLC, a Participant in this proceeding, filed its Motion for

Reconsideration in timely fashion

.

Further, that a true and accurate copy of that Motion is

marked as Exhibit "C", and attached hereto and incorporated herein by this reference

.

7 .

Several responses to the Motion for Reconsideration were also filed ; one by the

Applicant in this matter, and one by the Concerned Citizens of Ogle County, an objector's group

.

Further, that true and accurate copies of such responses are (respectively) marked as Exhibits

"D" and "E" and attached hereto and incorporated herein by this reference .

70525227v1 871956

---

8. Subsequent thereto, the Rochelle City Council reconvened in timely fashion to

consider Rochelle Waste Disposal's Motion for Reconsideration

. The City Council considered

Petitioner's Motion, but failed to grant the relief requested by the Petitioner

. Upon information

and belief, Petitioner asserts that a formal Resolution memorializing such action was passed by

the City Council on May 14, 2007, but such Resolution has not and will not be signed by the

Mayor of Rochelle for several more days

. Upon receipt of a duly executed copy of such

Resolution, the Petitioner will supplement this pleading

.

9 . With the passing of the resolution memorializing the City's action on the

Petitioner's Motion for Reconsideration, the City has now taken final action on the Application

for Local Siting Approval as provided by Section 39

.2(e) of the Act

.

10. Such final action taken by the Rochelle City Council is not supported by the

underlying record made in this proceeding, and is contrary to the express terms of the Host

Agreement executed between the Petitioner and the City relating to such proposed expansion

(thereby being fundamentally unfair)

. Moreover, Conditions 8, 13, 22, 23, 26, 28, 33 and 34

attached to such siting approval are, in addition, not reasonable and necessary to accomplish the

purposes of Section 39

.2 of the Illinois Environmental Protection Act, and are inconsistent with

the regulations promulgated by this Honorable Board

. As such, this Honorable Board should

refuse to affirm these conditions placed upon site location approval

.

11 .

This Petition is neither duplicitous or frivolous, and directly affects the Petitioner

herein

.

WHEREFORE, Petitioner, ROCHELLE WASTE DISPOSAL, LLC, prays that

:

a.

This Honorable Board accept this Petition for Review and set such matter for

hearing

;

70525227v1 871956

---

b.

That upon such review and after such hearing, this Honorable Board refuse to

affirm those special conditions placed upon site location approval referenced

herein and strike the same from any grant of site location approval

;

c .

For such other and further relief as this Honorable Board deems appropriate in the

circumstances .

Hinshaw & Culbertson LLP

100 Park Avenue

P

.O

. Box 1389

Rockford, IL 61105-1389

Phone : 815-490-4900

Fax : 815-490-4901

Respect€ r

R KEL

ISPOSAL, L .L.C.

This document utilized

100% recycled paper products

70525227v1 871956

---

CITY OF ROCHELLE

STATE OF ILLINOIS )

COUNTY OF OGLE )

CERTIFICATE

I, the undersigned, hereby certify that I am the duly qualified and acting City Clerk of the City of

Rochelle, County of Ogle and State of Illinois, and as such City Clerk, I am the keeper of the journals,

records and files of the City of Rochelle .

I do hereby certify that the attached Ordinance, Number 06-3472 presented to the City Council on

the 28' h day of August, 2006 and as signed by the Mayor of the

City

of Rochelle on the 29th day of August,

2006 and attested by the City Clerk, all as appears from the official records of the City in my Care and

custody .

IN WITNESS WHEREOF, I have hereunto affixed my official signature and the corporate seal

of the City of Rochelle, Illinois this 4 day of AUG 3 1 200620_

Kmney,

City Clerk, City of Rochelle

An Ordinance Approving Restatement of Host Agreement for City Landfill

.

f1

EXHIBIT

r!

---

ORDINANCE NO .

06-3472

Date Passed: August 28, 2006

AN ORDINANCE APPROVING RESTATEMENT OF HOST AGREEMENT

FOR CITY LANDFILL

WHEREAS, the City of Rochelle is a body politic and corporate, organized and

existing pursuant to the Illinois Municipal Code, 65 ILCS 5/1-1-1, et . seq . ; and

WHEREAS, a petition for annexation has been filed by the owners of certain

property described as follows :

TRACT A (25-22-300-003 and part of 25-22-400-001)

Part of Section Twenty-Two (22) and Section Twenty-Seven

(27), all in Township Forty

(40) North, Range Two (2) East of the Third Principal Meridian, bounded and described

as follows : Commencing at the Southeast Corner of the Southwest Quarter of said

Section 22

; thence South 88 degrees 59 minutes 45 seconds West, along the South line

of said Section 22, a distance of 1327 .77 feet to the West line of the Southeast Quarter of

the Southwest Quarter of said Section 22

; thence North 01 degrees 14 minutes 09 seconds

West, along said line, a distance of 1319.14 feet to the South line of the North Half (1/2)

of the Southwest Quarter of said Section 22 ; thence North 89 degrees 02 minutes 24

seconds East, along said line, a distance of 1328

.13 feet to the East line of the Southwest

Quarter of said Section 22 ; thence North 01 degrees 13 minutes 12 seconds West, along

the East line of the Southwest Quarter of said Section 22 and along the East line of the

Northwest Quarter of said Section 22, a distance of 1480 .19 feet to the Southerly Right of

Way line for the Union Pacific Railroad; thence North 82 degrees 12 minutes 03 seconds

East, along said line, a distance of 935 .91 feet; thence South 00 degrees 00 minutes 00

seconds West, a distance of 2909

.27 feet to the South line of said Section 22 ; thence

South 88 degrees 58 minutes 59 seconds West, along the South line of said Section 22, a

distance of 867 .80 feet to the point of beginning . Also, all that part of the Creston Road

Right-of-Way lying South of and adjacent to the above described premises

. Situated in

the County of Ogle, and the State of Illinois . Containing 100 .70 acres more or less

.

TRACT B (25-22-300-004)

Part of the Southwest Quarter (1/4) of Section Twenty-Two (22),

and part of the

Northwest Quarter (1/4) of Section Twenty-Seven (27), all in Township Forty (40) North,

Range Two (2) East of the Third Principal Meridian, bounded and described as follows

:

Commencing at the Southwest corner of the Southwest Quarter of said Section 22 ; thence

North 88 degrees 59 minutes 45 seconds East, along the South line of said Section 22, a

distance of 272

.99 feet to the point of beginning for the following described tract

; thence

North 00 degrees 25 minutes 53 seconds East, a distance of 228

.93 feet ; thence South 89

degrees 28 minutes 15 seconds East, a distance of 177 .29 feet ; thence South 02 degrees

28 minutes 15 seconds East a distance of 224 .19 feet to the South line of said Section 22

;

thence South 88 degrees 59 minutes 45 seconds West along said line a distance of 188 .70

---

feet to the point of beginning . Also, all that part of the Creston Road Right-of-Way lying

South of and adjacent to the above described premises . Situated in the County of Ogle,

and the State of Illinois . Containing 1

.09 acres more or less, (collectively, the

"Property"); and

WHEREAS, it is anticipated that an application for an expansion of the City

landfill will be filed in the near future, pursuant to authorization given to the City

Manager on March 6, 2006, and that the proposed expansion will be located on the

Property; and

WHEREAS, the existing Host Agreement between the City and the Operator of

the landfill, Rochelle Waste Disposal, LLC, as previously amended, contains no

provisions authorizing the City to initiate an application for an expansion of the landfill,

and no terms relating to any such application by the City, and it is appropriate for the

Host Agreement to be restated and revised accordingly ; and

WHEREAS, following a public hearing convened after due notice to the public,

the City Council deems it appropriate to authorize and direct the City Manager to execute

the Restatement of Host Agreement between the City and Rochelle Waste Disposal, LLC,

as presented to the City Council

;

NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF

THE CITY OF ROCHELLE, OGLE COUNTY, ILLINOIS, as follows :

1 . That the City Manager is authorized and directed to execute the Restatement of

Host Agreement between the City of Rochelle and Rochelle Waste Disposal, LLC ; and

2. That the adoption of this Ordinance is with the express reservation of, and

without prejudice to, all of the Rochelle City Council's rights and duties as the local

siting authority under Section 39 .2 of the Illinois Environmental Protection Act, and with

the express understanding that any decision by the City Council in any proceeding for

local siting approval would be based solely on the record established in that proceeding

.

This ordinance shall become effective after its passage, approval and publication

as provided by law .

PASSED AND APPROVED this 28` h day of August, 2006

.

---

RESTATEMENT

OF

HOST AGREEMENT and AGREEMENT FOR

OPERATIONIDEVELOPMENT

OF

CITY OF ROCHELLE LANDFILL NO . 2

This Agreement is executed

2w"

~" Z L , 2006, by the CITY OF

ROCHELLE, ILLINOIS ("CITY") and ROCHELLE WASTE DISPOSAL, L.L.C .,

("OPERATOR")

and

amends and restates in its entirety that certain HOST

AGREEMENT and AGREEMENT FOR OPERATION/DEVELOPMENT OF CITY OF

ROCHELLE LANDFILL NO

. 2 (the "Original Agreement") dated April 26, 1995 .

RECITALS:

The CITY is the owner of the City of Rochelle Sanitary Landfill No

. 2 which, at

the time that the Original Agreement was executed, was located approximately one mile

east of the eastern most boundary of the City of Rochelle on Mulford Road in southern

Ogle County, Illinois . The property which comprises the Rochelle Sanitary Landfill No

.

2 has subsequently been annexed to the CITY

.

The Original Agreement recites that:

(a) CITY is interested in negotiating an agreement with a qualified

landfill development and operations firm for the lease and operation of the

existing landfill (until all present capacity and any capacity permitted in an

expansion of the facility under the terms of this agreement have been filled), as

well for the obtaining siting authority for an expansion of the existing landfill (all

consistent with the terms and conditions included set forth in this Agreement) ;

(b) OPERATOR desires to lease, operate and further develop the above

described sanitary landfill, and under the terms and conditions set forth in this

Agreement

.

The Original Agreement was subsequently amended by amendments dated

December 19, 1998, and January 21, 1999, respectively (the "Initial Amendments") . The

Original Agreement as amended by the Initial Amendments is referred to in this

agreement as the "Amended Host Agreement ."

Under the terms of the Amended Host Agreement, the OPERATOR leased from

the CITY the real property and improvements known as Rochelle Landfill Number 2 (the

"Landfill") and agreed to operate the Landfill on the terms and conditions provided in the

Amended Host Agreement . Under the terms of the Amended Host Agreement, the

OPERATOR was granted the sole right to expand the landfill and continue its operation .

Roehe11e11ostAgrcemenl 13 iev6]O1ts 7-31-06

1

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On January 21, 2000, the OPERATOR filed an application with the CITY seeking

site location approval pursuant to Section 39 .2 of the Illinois Environmental Protection

Act (the "Act") for an expansion of the Landfill to encompass a parcel of approximately

226 acres with a total capacity of approximately 38,000,000 cubic yards, a waste disposal

capacity of approximately 28,500,000 cubic yards, and a maximum elevation of 1130 feet

mean sea level (MSL)

. That application was withdrawn by the OPERATOR .

On November 22, 2002, the OPERATOR filed a second application with the

CITY seeking site location approval pursuant to Section 39 .2 of the Act for an expansion

of the Landfill to encompass a parcel of approximately 211 acres with a total capacity of

approximately 23,000,000 cubic yards, a waste disposal capacity of approximately

17,600,000 cubic yards, and a maximum elevation of 960 feet MSL . That application

was denied by the CITY on April 24, 2003

.

On December 27, 2005, the City Council of the CITY adopted a resolution which

authorized the City Manager and the staff of the CITY to investigate the advantages or

disadvantages of an expansion of the Landfill . Based on the results of that investigation,

on March 6, 2006, the City Manager recommended to the City Council that the staff of

the CITY prepare an application for local siting approval for an expansion of the Landfill,

working with such independent environmental and other consultants as they determine to

be necessary.

Based on the recommendation of the City Manager, on March 6, 2006, the City

Council authorized the City Manager and the staff of the CITY to prepare and file an

application for local siting approval for an expansion of the Landfill (the existing landfill

and any expansion thereof being hereafter referred to as "the Expanded Facility")

. The

City Council took this action with the express reservation of, and without prejudice to, all

of its rights and duties as the local siting authority under section 39 .2 of the Act, and with

the express understanding that any decision by the CITY Council in any proceeding for

local siting approval would be based solely on the record established in that proceeding .

The CITY has advised the OPERATOR that in any proposed expansion of the

Landfill, it is the intention of the CITY to provide for the exhumation of the waste

previously disposed of in "Unit 1" of the Landfill and the re-disposal of that waste in the

Expanded Facility . Additionally, representatives of the OPERATOR have provided

certain operational and design information and recommendations to representatives of the

CITY staff to assist them in developing design concepts and to clarify the position of the

OPERATOR as the OPERATOR responsible for the operation of the Landfill and any

expansion that may be approved .

The OPERATOR is willing to cooperate with the CITY in planning and designing

an expansion which will provide cost effective, long-term landfill disposal capacity and

other waste management services for residents, businesses and institutions located in the

CITY, and to donate certain real property to the CITY to facilitate an expansion which

will accommodate the re-disposal of waste from Unit 1 .

RochelleHostAgnxment 13 mvisicns 7-31-06

2

---

The parties desire to amend the Amended Host Agreement for the sole and

limited purpose of allowing the CITY to prepare and file an application for local siting

for an expansion of the Landfill on certain terms and conditions, including the donation

and annexation of certain real property to the CITY to facilitate such an expansion .

The par-tics desire to reduce to writing the terms of the amendments to the

Amended Host Agreement on which they have agreed and to completely restate the Host

Agreement as amended in its entirety in a single document

.

NOW, THEREFORE, in consideration of the mutual covenants and agreements

herein contained, and in reliance upon the recitals set forth above which are incorporated

herein by reference, it is hereby agreed that the CITY and the OPERATOR amend and

restate the HOST AGREEMENT and AGREEMENT FOR OPERATION/ DEVELOPMENT

OF CITY OF ROCHELLE LANDFILL NO. 2 in its entirety to read as follows

:

PREMISES .

1 .1 Description. CITY hereby leases to OPERATOR, and OPERATOR leases for the

term, upon all of the conditions set forth herein, as well as all of the conditions in the

documents set forth in Exhibit A (which are attached hereto and incorporated herein by

this reference), the real property and improvements commonly known as the City of

Rochelle Sanitary Landfill (as described in Exhibit B attached hereto and incorporated

herein by this reference) .

2,

TERM

.

2.1 Lease Term . The term of this lease shall commence on the date of the Original

Agreement and shall continue for : a) as long as any capacity permitted for the disposal of

solid waste remains in the real property described on Exhibit B or in any expansion sited

by the OPERATOR pursuant to the terms of this Agreement or in any expansion sited by

the CITY pursuant to the terms of this Agreement which is consistent with the terms of

this Agreement ; or b) for a period of twenty years if the period described in clause (a)

above is less than twenty (20) years . The term of this lease shall continue during any

temporary periods in which the permitted capacity is not available due to the termination

or lapse of any necessary permit if the OPERATOR is pursuing the necessary permits in

a reasonable manner and is otherwise in compliance with all other provisions of this

agreement

.

2 .2

Disposal Capacity Period . OPERATOR shall provide CITY with disposal

capacity for at least a twenty (20) year period or for as long as capacity remains in this

facility or in any expansion that is (a) sited by the OPERATOR pursuant to the provisions

of this Agreement or (b) sited by the CITY pursuant to the terms of this Agreement which

is consistent with the terms of this Agreement, for all residential solid waste generated

within the City of Rochelle (as the boundaries of such municipality may be adjusted from

time in the future during the term of this Agreement) and all nonhazardous solid waste

generated by the CITY from its own activities (governmental/institutional waste) .

RocheIId IosIAgrecment J 3 revisions 7-31-06

---

OPERATOR's',obligation to provide the capacity outlined above shall continue during

the term of

this Agreement without regard to whether siting and/or permit approval for an

expansion of the existing facility is obtained by OPERATOR or by CITY .

OPERATIONS .

3 .1

Waste Limits

. As long as any capacity permitted for the disposal of solid waste

remains in the real property described on Exhibit B or in any expansion sited by the

OPERATOR pursuant to the terms of this Agreement or in any expansion sited by the

CITY pursuant to the terms of this Agreement which is consistent with the terms of this

Agreement,

OPERATOR shall dispose

of CITY's

residential and

governmental/institutional waste at no charge so long as such amounts collected do not

exceed ten thousand six hundred (10,600) tons per year in the first five (5) years under

the Original

Agreement. For purposes of this Agreement, the term

"governmental/institutional waste" shall include POTW sludge generated by the CITY's

sewage treatment plant

. Thereafter, CITY shall be entitled to increase the initial, base

annual cumulative waste generation figure for which no charge for disposal is assessed

by a maximum of ten percent (10%) of the initial base annual waste generation figure for

every subsequent five (5) year period included within the Host Agreement, In the event

that residential and governmental/institutional waste is accepted in an amount which

exceeds the yearly waste disposal figure exempt from disposal charges set forth herein,

then the charge for acceptance of the incremental waste volume above the yearly amount

exempt from disposal charge shall be assessed at the lowest disposal rate which is

actually being charged and/or received by the OPERATOR at that time for similar

municipal solid waste . In the event that the OPERATOR provides or obtains disposal

capacity for the CITY pursuant to section 2

.2 at any other facility, the charge or fee to the

CITY shall not exceed the lowest charge which the OPERATOR or any member of the

OPERATOR then charges for the disposal of municipal solid waste (in the case of a

facility owned or controlled by the OPERATOR or a member of the OPERATOR) and in

the case of disposal capacity provided at any other facility, shall be determined by the

mutual agreement of the parties .

3 .2 Standards. The existing facility shall be operated so as to comply with all

provisions of the Illinois Environmental Protection Act, rules and regulations of the

Illinois Environmental Protection Agency and the Illinois Pollution Control Board, the

provisions of Subtitle D of The Resource Conservation and Recovery Act of 1976

(RCRA), as well as all conditions and requirements of any significant modification

permit issued by the State of Illinois to the CITY, and any other applicable rules or

regulations now in effect or enacted hereafter, In addition, the proposed expansion of the

facility shall be designed, constructed and operated so as to comply with all provisions of

the Illinois Environmental Protection Act, rules and regulations of the Illinois

Environmental Protection Agency and the Illinois Pollution Control Board, the provisions

of Subtitle D of RCRA, and any other applicable rules or regulations now in effect or

enacted hereafter .

RochelleHostAgreement J3 revisions 7-31-06

4

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3 .3

Flow Quantity .

(a) As part of the Fee Arrangement, OPERATOR guarantees a

minimum fee payable under paragraph 4

.5 below which is equivalent to a flow quantity

of three hundred (300) tons per day for each full day that the facility is open to accept

waste, and guarantees payment of all required Host Agreement fees or royalties on this

minimum amount for the term of this Agreement

. In this regard, the OPERATOR and

the CITY intend that, subject to holidays, the facility will be open to accept waste

Monday through Friday and may be open for one-half day on Saturday . The minimum

daily flow quantity shall be pro-rated for Saturdays and shall not apply to any day on

which the facility would otherwise be closed but on which the OPERATOR opens the

facility at the request of a third party to accept a specific load or loads of waste under

unusual circumstances

. Payment of such fees shall be made by OPERATOR to CITY on

or before the 10`h day of each month

.

(b) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this Agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, the Expanded Facility will be permitted to receive not more than

300,000 tons of waste per year ; provided, however, that the CITY may grant a waiver of

this volume limitation in the event of major emergencies or other unusual local projects

requiring significant waste disposal .

3.4 County Criterion. To the extent applicable, the Expanded Facility shall meet all

duly enacted County siting criteria developed pursuant to the Ogle County Solid Waste

Management Plan .

3 .5 Waste Streams . (a) The Expanded Facility shall accept no new special waste

streams generated from outside a 100-mile radius of the City of Rochelle without first

receiving prior written approval by CITY so as to ensure that receipt of such special

waste streams will not cause or threaten to cause a violation of any applicable federal,

state and/or local law designed and/or intended to protect the human health, safety,

welfare and/or the environment .

(b) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this Agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, the Expanded Facility will not be permitted to accept knowingly

waste generated in the CITY of Chicago without the prior written approval of the CITY .

The OPERATOR will maintain accurate records which are reasonably sufficient to allow

the CITY to verify its compliance with the provisions of this paragraph .

(c) No free liquids may be accepted at the Expanded Facility without the prior

written approval of the CITY

.

(d) Upon reasonable suspicion of non-compliance with this section 3 .5, the CITY

may require the inspection of specific loads designated by the CITY .

RocitelleHostAgrCement J3 revisions 7-31-06

5

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3 .6

Inspection .

OPERATOR shall insure adequate means to insure compliance with

all terms and conditions of the Agreement, including (a) CITY compliance inspection

access to the Expanded Facility, as well as access to records of operation and financial

records, (b) reports on compliance with state post-closure trust fund contributions and all

other ongoing financial assurance obligations .

3 .7

Assignment or transfer of Interest . (a) OPERATOR shall not be allowed to sell,

convey or otherwise assign its interest in or transfer operation of the Expanded Facility

without prior written approval by CITY (which approval shall not be unreasonably

withheld or delayed following submission of information sufficient to justify such sale,

assignment or transfer), and further provided that CITY shall have the right to consider

the ability of the proposed transferee (financially and operationally), to comply with all

terms and conditions of this Agreement.

(b) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this Agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, if the OPERATOR transfers the Expanded Facility, the CITY shall

have the option to increase the Host Fee otherwise payable under this Agreement by ten

cents ($0

.10) per ton, effective as of the date of the transfer . For this purpose, a "transfer"

of the Expanded Facility will be considered to have occurred if (a) there is a conveyance

of the real property which comprises the Expanded Facility to any person or firm which

is not controlled by or under common control with the OPERATOR or one of the current

owners of the equity membership interests in the OPERATOR; or (b) there is an

assignment of this Agreement to any person or firm which is not controlled by or under

common control with the OPERATOR or one of the current owners of the equity

membership interests in the OPERATOR ; or (c) there is a change in the ownership of

over 50% of the equity ownership interests in the OPERATOR, other than a change

resulting from a transfer to a member of the transferor's family or to a corporation or

other business entity which is owned by the transferor or under common control with the

transferor.

The OPERATOR shall notify the CITY in writing promptly upon the

occurrence of a transfer . The notice shall include the effective date of the transfer and the

name and address of any new owner, assignee or transferee

. The option provided for in

this subparagraph shall be exercised by a written notice to the then OPERATOR of the

facility within thirty (30) days after the CITY first has knowledge of the transfer.

3 .8 Wage Compliance . OPERATOR must comply with all applicable prevailing

wage provisions (if any) under state and/or federal law, as well as any and all other

applicable wage and/or workplace provisions under state and/or federal law .

3

.9

Disposal Space . During every year period under this Agreement that landfill

capacity exists at the facility or under any expansion thereof, the OPERATOR shall

reserve sufficient capacity at the landfill facility for and give first priority to disposal of

that volume of waste generated within the City of Rochelle which is exempt from

disposal charges under Section 3 .1 above; however, the reservation of disposal capacity

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for CITY's waste shall not be cumulative, and should the reserved annual disposal

capacity not be utilized by CITY during any year term under this Agreement, that

capacity may be utilized by the OPERATOR for other than CITY waste . The Expanded

Facility shall accept no new special waste streams outside a 100-mile radius of the City

of Rochelle without first receiving prior written approval by CITY .

3.10

Acceptable Waste .

The landfill facility shall not knowingly accept, treat, or

dispose of any waste which is defined as "hazardous" by the Illinois Environmental

Protection Act

; the OPERATOR shall comply with all regulations of the Pollution

Control Board relative to load checking, and shall immediately inform the City of

Rochelle orally and in writing of any hazardous waste that has been accepted, received,

stored, treated, disposed, or transported to or from the facility, and shall immediately take

any and all steps necessary to properly remove such hazardous waste from the facility in

accord with all applicable federal, state and/or local laws,

3 .11

Landfill Design and Operating Standards

. (a)

The existing facility shall be

operated so as to comply with all provisions of the Illinois Environmental Protection Act,

rules and regulations of the Illinois Environmental Protection Agency and the Illinois

Pollution Control Board, the provisions of Subtitle D of RCRA, as well as all conditions

and requirements of any significant modification permit issued by the State of Illinois to

the CITY and any other applicable rules or regulations now in effect or enacted hereafter

.

In addition, the proposed expansion of the facility shall be designed, constructed and

operated so as to comply with all provisions of the Illinois Environmental Protection Act,

rules and regulations of the Illinois Environmental Protection Agency and the Illinois

Pollution Control Board, the provisions of Subtitle D of RCRA, any other applicable

rules or regulations now in effect or enacted hereafter, as well as all documents referred

to in Exhibit A to this Agreement.

(b) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this Agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, the following terms shall apply, effective as of the date of such final

and non-appealable local siting approval :

(i) no waste will be received by rail ;

(ii) an appropriate Quality Assurance/Quality Control program which

complies with all applicable regulations under the Act will be in place for the

construction of new units and for the transfer and re-disposal of Unit 1 ;

(iii) the overnight storage of waste in transfer trailers, collection trucks or

other vehicles will not be allowed without the prior written approval of the City

;

(iv) no burning of waste will he allowed (other than the flaring of landfill

gas, subject to appropriate permits) ;

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(v) no composting of landscape waste materials will be allowed without

the prior written approval of the CITY ; provided, however, that this prohibition

will not restrict the continuation of the current practice of land application of

landscape waste;

(vi) the vertical and lateral extent of the actual waste placement will not

exceed the boundaries and elevations for which the facility has obtained local

siting approval and all necessary permits ;

(vii) final cover will be placed within sixty (60) days after the placement

of the final lift, weather permitting ;

(viii) the OPERATOR will direct transfer trailers using the facility to use

the interstate system as much as possible

;

(ix) the property value protection plan provided for in the Host County

Agreement dated December 19, 1995, between Ogle County and Rochelle Waste

Disposal (the "Host County Agreement") will apply to all property within one

mile from the Expanded Facility property boundary ;

(x) the well protection plan provided for in the Host County Agreement

will apply to all property within one mile from the Expanded Facility property

boundary and will cover the municipal wells of the Village of Creston;

(xi) the facility will not re-circulate leachate without the CITY's approval

(unless leachate recirculation is required by law or regulation) ;

(xii) the maximum elevation of the Expanded Facility will not exceed 940

feet MSL;

(xiii) the maximum operating hours that the Expanded Facility may be

open to accept waste will be the currently permitted hours (6 :00 a.m. to 6:00

p.m.).

3 .12 Costs Assumed by OPERATOR . (a) Subject to the provisions of subparagraph

(b) below, after the date of the Original Agreement, all costs (present and future)

associated with the design, construction, development, operation, closure and postclosure

phases of the Landfill and the Expanded Facility, and any and all costs, fees, fines,

penalties, and/or expenses that may arise in any way from the design, construction,

development, operation, closure and postclosure of the Landfill and the Expanded

Facility, are to be paid by, and are the sole responsibility of OPERATOR . OPERATOR

shall also be responsible to pay any engineering, monitoring, and other professional fees

and necessary expenses associated with the Significant Modification process which were

incurred by the CITY subsequent to the date of public notice of the Request for Proposal

for bids (RFP) for the operation/development of City of Rochelle Landfill No . 2, which

are related to ensuring that the existing facility and all expansions thereto comply with all

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applicable and .relevant state, federal, and local statutes, rules, regulations, or ordinances

.

OPERATOR shall make adequate provision for and guarantee proper collection,

handling, treatment and/or disposal of leachate generated at the Landfill and the

Expanded Facility at its own expense.

In the event that OPERATOR elects to send

leachate to the CITY publicly owned treatment works for treatment and/or disposal,

OPERATOR shall pay for all charges incurred in the treatment of constituents contained

in the leachate

.

To the extent practicable, CITY agrees to charge OPERATOR for

leachate treatment and disposal in a manner consistent with user treatment charges

assessed to other users who generate leachate/waste stream which include the same type

and level of constituents as are found in the leachate collected by the OPERATOR from

the Landfill and the Expanded Facility .

(b) In the event that the CITY applies for local siting approval for an expansion

of the Landfill, the CITY shall be responsible for all of the costs incurred in connection

with the application and the local siting process, including the fees of any consultants,

engineers, and other experts, filing fees, hearing officer fees, expenses of hearings and

transcripts, and all other costs associated with the application or any appeal; provided,

however, that the CITY shall not be responsible for any of OPERATOR'S costs related

to the siting application or any siting appeal, including the fees of consultants, engineers

and other experts, and OPERATOR shall be responsible for payment of the fees set forth

in section 4 of this Agreement

.

3 .13

Supplemental and Special Permits . The OPERATOR shall be entitled to obtain,

at the expense of the OPERATOR, any state or federal Supplemental Permits, Significant

Modification Permits,

Renewal Permits, special waste stream permits, adjusted

standards, variances, and other permits or authorizations, and any amendments or

modifications to any of the foregoing, which the OPERATOR determines to be necessary

or appropriate for the operations, development, expansion, or closure of the landfill or for

any corrective or remedial action relating to the landfill

. The OPERATOR will provide

the CITY with reasonable prior notice of any such applications intended to be filed by the

OPERATOR and the OPERATOR shall not seek any permit, variance, or standard which

would have a material adverse effect on the CITY without the prior written approval of

the CITY . The CITY will cooperate with the OPERATOR in all such applications or

petitions filed by the OPERATOR.

3 .14 Hauling Agreement . Simultaneously with the execution of the Original

Agreement, the CITY and Rochelle Disposal Services, Inc

., a corporation, executed an

agreement for the collection and transport of municipal solid waste in the form attached

to the Original Agreement as Exhibit C (the first page of which is attached hereto) which

took effect when the Original Agreement was executed and the Significant Modification

was issued, Upon their execution, each such agreement was independent of the other and

a default under either agreement shall not constitute a default under the other.

4 .

RENT, FEES, TAXES, ETC.

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4.1

Initiation and Continuation Fees . In consideration for the exclusive right to

operate CITY landfill facility until such time that the currently permitted air space is

exhausted, and in further consideration for OPERATOR being granted the sole right to

expand the landfill (subject to the provisions of subparagraph 3 .12(b) above) and

continue operation of the same, OPERATOR shall pay to CITY an Initiation fee of Two

Hundred Thousand Dollars ($200,000), at such time as the Agreement is executed, the

receipt of which is acknowledged by the CITY, as well as a Supplemental Continuation

fee of Two Hundred Thousand Dollars ($200,000) at such time as siting approval for any

expansion of the landfill facility operations is obtained . In the event that CITY is the

local siting authority by which siting approval for any expansion of the landfill facility

operations is obtained, OPERATOR shall pay to CITY an additional Two Hundred

Thousand Dollars ($200,000 .00) at the time siting approval is obtained . In addition to the

fees provided for in the preceding provisions of this subparagraph, in the event that an

expansion of the Landfill which is consistent with the terms of this Agreement is applied

for by the CITY in accordance with the provisions of this agreement and such an

expansion of the Landfill receives final and non-appealable local siting approval, the

OPERATOR shall pay the CITY an additional Thirty-Eight Thousand Dollars

($38,000 .00).

4

.2

Miscellaneous Costs. Subject to the provisions of subparagraph 3 .12(b) above,

the OPERATOR must pay for any and all engineering, monitoring and other professional

fees, costs, and other necessary expenses incurred to insure that the existing facility (and

all expansions thereto) comply with any and all applicable and relevant state, federal and

local statutes, rules, regulations or ordinances (including but not limited to Part 811

regulations and applicable provisions of Subtitle D of RCRA) . In addition, OPERATOR

shall specifically reimburse CITY for engineering fees and costs incurred during the

Significant Modification Application process from the date of issuance of the Request for

Proposal for bids (RFP) for the operation/development of City of Rochelle Landfill No . 2

forward, the receipt of which is acknowledged by the CITY .

4.3 Taxes . OPERATOR assumes responsibility for and shall make proper payment of

any and all taxes, fees, and levies made by all state, local and federal governmental

entities with respect to operation of the landfill from the effective date of the Original

Agreement forward .

4

.4 Base Fee ; Additional Fee; Supplemental Host Fee. a) In each calendar year of

the term of this agreement, the OPERATOR agrees to pay to the CITY a Base Fee of

Seventy-Five Thousand dollars ($75,000 .00) per year payable in equal quarter-annual

installments .

b) In each calendar year of the term of this agreement OPERATOR agrees to pay

CITY an Additional Fee of One 50/100 Dollars ($1 .50) on each ton of waste received

and disposed of at the facility or at any expansion of the facility whether located on the

property described on Exhibit B or any other site selected by the OPERATOR for

expansion siting pursuant to Article 7 below, including the Expanded Facility (excluding

residential and governmental/institutional waste exempt from disposal charge) or six and

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one-tenth percent (6

.1%) of the annual gross revenues received on an accrual basis by

the OPERATOR during the year under this Agreement (whichever amount is greater) .

Payments of such Fees shall be made on a quarter-annual basis . For each year under this

Agreement subsequent to the first five (5) years, the OPERATOR agrees that the six and

one-tenth percent (6

.1%) percentage fee will not be less than Two and 25/100 Dollars

($2.25)

on each ton of waste received and disposed of at the facility or at the Expanded

Facility (excluding residential and governmental/institutional waste exempt from disposal

charge) during the balance of this Agreement. Such Fees are in the nature of general

revenues, and are not a fee, tax, or surcharge with regard to the permanent disposal of

solid waste to be utilized for solid waste management purposes, but, rather, are general

revenue fees which are to be collected under this Agreement in addition to any and all

such other solid waste management/disposal fees, assessments and/or levies required by

any state and/or local governmental entities . For the term of this agreement, the one and

50/100 dollar ($1.50)

fee shall increase in direct proportion to any increase in the posted

"tipping fee" charged over the posted "tipping fee" in effect during the first year of the

Agreement (not to exceed 10% per annum) .

c)

The OPERATOR and Ogle County, Illinois (the County) entered into an

Agreement dated December 19, 1998 (the County Agreement), which addresses certain

issues raised by the County concerning development and operation of an expansion of the

Rochelle Landfill facility on property owned by the CITY and property owned by the

OPERATOR

. Subsequent to the Original Host Agreement and the County Agreement,

the CITY, the County, and the Village of Creston (the Village) have entered one or more

agreements (the Intergovernmental Agreements) which address certain governmental

issues relating to the development and operation of an expansion of the Rochelle Landfill

facility. In addition to the fees and other charges payable by the OPERATOR under the

preceding provisions of this paragraph, the OPERATOR shall pay the CITY a

Supplemental Host Fee equal to the lessor of: a) one-half the amount which the CITY

and the County are obligated to pay to the Village under the existing Intergovernmental

Agreements in connection with the operation of any expansion of the Rochelle Landfill

Facility ; or b) twenty-one cents ($0 .21) per ton of waste subject to the Host Fee payable

under paragraph 4 .4(b) above (Covered Waste) . The obligation of the OPERATOR to

pay the fee payable under this subparagraph (c) shall commence on the date on which the

OPERATOR first accepts Covered Waste outside the present Rochelle Landfill

boundaries as permitted under the existing local siting or zoning approvals applicable to

the facility . In addition to the fees payable by the OPERATOR to the CITY pursuant to

paragraph 4.1 of the CITY Host Agreement, the OPERATOR agrees to pay the County

the Host Benefit Fee provided for in paragraph 16(c) of the County Host Agreement in

the event that the CITY conducts the local siting process for the expansion of the

Rochelle Landfill .

4 .5 Tipping/Disposal Fees for Non-Exempt CITY Users . During the first and all

subsequent years of operation of the landfill facility and the Expanded Facility,

OPERATOR shall charge a "tipping fee" (the fee charged by the OPERATOR for the

disposal of waste at the facility) for all commercial solid waste and non-hazardous special

waste originating from the City of Rochelle which is not exempt from disposal/tipping

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fees at a fee' no greater than the average fee actually charged for similar waste at

comparable landfill facilities located within a seventy-five (75) mile radius of the City of

Rochelle

.

4

.6

Additional Revenues to be received by CITY

.

a) It is expressly understood and

agreed that this lease is subject to the terms of an existing Lease Agreement relating to

the communication tower located upon the existing landfill facility and the CITY will

continue to receive all benefits and be responsible for all obligations wider that Lease

Agreement

. In the event that the OPERATOR reasonably determines that the tower lease

will interfere with the development, operation, expansion, closure, or post-closure care

of the landfill, the OPERATOR will promptly notify the CITY of that fact and the CITY

will use its best diligent efforts to terminate the tower lease within three years without

cost to the OPERATOR . In the event that any activities of the OPERATOR in connection

with the development of the facility prior to the termination of the tower lease damage

any growing crops on the premises subject to that lease, the OPERATOR will

compensate the tower lease tenant for the damage .

(b) OPERATOR currently owns a 220 acre (more or less) parcel immediately

adjacent to the existing landfill facility (the "OPERATOR's Property") . The parties

acknowledge that the OPERATOR's Property is not presently part of the landfill facility .

Except as otherwise set forth in this Agreement, the OPERATOR will not permit or allow

any development or uses on the OPERATOR'S Property which are not compatible with

its eventual use as a landfill . Additionally, the OPERATOR will not permit or allow any

use on the OPERATOR'S Property which is not complementary to the eventual use of

the OPERATOR'S Property as a landfill.

(c) To facilitate the expansion of the Landfill, the OPERATOR has filed

_a

petition to annex to the CITY on the terms set forth in this Agreement a parcel of

approximately 1 .09 acres located approximately 273 feet east of the intersection of

Creston Road and Mulford Road, and a parcel of approximately 100 .70 acres which

adjoins the existing landfill property on the south and east, as

depicted on the Site Plan

which is attached as Exhibit D ("Additional Land .") . In connection with the annexation

of the Additional Land:

(i) The City shall cause the Additional Land to be classified or designated

under the City's zoning ordinance in zoning classifications which are consistent with the

development, use, and operation of a municipal solid waste landfill and ancillary uses on

the Additional Land .

(ii) The CITY shall not assess any fees or charges with respect to the

annexation of the Additional Land or any development, construction, or other activities

on the Additional Land in connection with the expansion of the Landfill which are in

excess of the fees or charges which would be payable by the OPERATOR if the property

had remained in an unincorporated area of Ogle County .

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(iii) The CITY shall not impose any sales, use, occupation, or other taxes

applicable to any business conducted on the Additional Land or any utility charges,

connection fees, monitoring charges, testing charges, or other governmental fees or

charges on any activity conducted on the Additional Land which is not in effect on the

date of this Agreement unless the fee or charge in question is generally applicable to all

businesses in the CITY .

(iv) In consideration of the agreement of the OPERATOR to grant the

CITY the option to purchase the Additional Land for One Dollar ($1

.00), the CITY

agrees not to assess or impose any stormwater or other impact fees in connection with the

annexation of the Additional Land .

(d) The OPERATOR hereby grants the CITY the option to purchase the

Additional Land for One Dollar ($1

.00) if and when the CITY receives final and non-

appealable site location approval for an expansion of the Landfill which is consistent with

and in accordance with the terms of this Agreement . In the event that the CITY annexes

the Additional Land, the Additional Land will be zoned by the CITY in zoning

classifications which are consistent with the development, use, and operation of a

municipal waste landfill and ancillary uses on the Additional Land and the adjoining land

owned by the CITY .

(e) If the CITY is not successful in obtaining the approval of the appropriate local

siting authority for an expansion which is consistent with and in accordance with the

terms of this Agreement prior to November 1, 2007, or if the CITY is not successful in

obtaining a final and non-appealable local siting approval for an expansion of the Landfill

which is consistent with and in accordance with the terms of this Agreement within forty-

eight (48) months after the date of this Agreement, the OPERATOR will be entitled to

disconnect the Additional Land by a written notice to that effect to the CITY and the

CITY's option to purchase the Additional Land will terminate . Notwithstanding the

preceding provisions of this subparagraph, in the event that the CITY has obtained from

the appropriate local siting authority the approval of an expansion which is consistent

with and in accordance with the terms of this agreement prior to November 1, 2007, if

the CITY is in good faith diligently defending or prosecuting an appeal of that approval,

the CITY shall be entitled to extend the deadline provided in the preceding sentence for

the duration of the appeal process . The provisions of this subparagraph shall survive the

termination of this Agreement .

(t) Without charge, in the event that the CITY acquires the Additional Land, the

OPERATOR and its tenants, licensees, subcontractors, and assignees shall be entitled to

use any parts of the Additional Land which are not then required to be used for landfill

purposes for any temporary uses which are not incompatible with the eventual use of the

Additional Land in connection with the expansion of the Landfill and are permitted under

the applicable zoning ordinance of the governmental body having jurisdiction, or

constitute the temporary use of the Additional Land for the installation, maintenance, and

operation of facilities used by contractors in the ordinary course of construction activities,

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and to retain any rents, profits, or proceeds derived from their use . The term "landfill

purposes" as used in this subparagraph, shall include uses such as set-backs, stormwater

conveyances or detention areas, roadways, and other ancillary uses in addition to waste

disposal areas

. For purposes of this paragraph, any use which would be a permitted use

under the 1-2 zoning classification of

the CITY zoning ordinance or under the zoning

ordinance of the County applicable to the property prior to its annexation will be deemed

to be a use permitted under the applicable zoning ordinance

.

(g) OPERATOR shall indemnify and hold harmless the CITY, and CITY's agents

and employees from and against all claims, damages, losses and expenses including

attorneys' fees arising out of or resulting from the performance of the use or development

of the Additional Land by the OPERATOR (the "OPERATOR's Alternative Uses"),

provided that any such claim, damage, liability, loss or expense (i) is attributable to

bodily injury, sickness, disease or death, or to injury to or destruction of tangible property

including the loss of use resulting therefrom, and (ii) is caused in whole or in part by any

negligent or willful act or omission of OPERATOR, or anyone directly or indirectly

employed by the OPERATOR or anyone for whose acts any of them may be liable . The

obligations of OPERATOR under this subparagraph shall not extend to any liability,

claim, cost, loss, or expense which arises out of the willful or wanton conduct of the

CITY or any person for whose acts the CITY is responsible .

(h) The OPERATOR shall be entitled to incorporate any stormwater conveyances

or detention areas in the Additional Land in the development of the OPERATOR's

adjoining land as long as such development does not adversely affect their use in

connection with the Expanded Facility and to utilize any wetlands which may be created

in connection with the expansion of the Landfill for wetlands banking, wetlands credits,

or similar purposes, in each case at the expense of the OPERATOR .

(1) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, the OPERATOR agrees to allow certain other improvements to its

adjoining land to facilitate the expansion of the Landfill in accordance with this

agreement. These additional improvements are : (a) the OPERATOR will allow the

waterway located on its adjoining land to be relocated at the expense of the OPERATOR

.

(j) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, the OPERATOR will encumber its adjoining property with a

restrictive covenant that would prohibit its use as a landfill without the CITY's approval

as long as waste disposal capacity which has received final and non-appealable local

siting approval remains in the Expanded Facility . The terms of the restrictive covenant

provided for in this paragraph shall be determined by the mutual agreement of the CITY

and the OPERATOR .

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(k) Commencing on the date of this Agreement, the OPERATOR and the CITY

will attempt in good faith to negotiate the terms of the annexation to the CITY of the

parcel of real property which is owned by Operator and is adjacent to the Expanded

Facility (the "Development Parcel") pursuant to a "mixed use" land development plan

acceptable to both of the parties

. The development plan and the annexation agreement

will address such matters as the nature of the uses permitted, zoning classifications, fee

waivers, and other matters typically addressed in annexations . In the event that the

parties are able to reach an agreement on the terms of annexation and the development

plan for the Development Parcel, including the waiver of fees, the OPERATOR will file a

petition for annexation of the property to the CITY, subject to approval of the annexation

agreement containing the terms of the development plan, within thirty (30) days after an

expansion of the Landfill receives final and non-appealable local siting approval .

4.7

Verified Records of Waste Received . The OPERATOR shall have a certified

scale at the gate and all incoming waste shall be weighed . Further, OPERATOR shall

maintain a true and accurate copy of all records of waste received at the Expanded

Facility for the benefit of the CITY and shall provide a copy of all such records to the

CITY on a monthly bases .

4.8 Utilities .

OPERATOR shall pay for all water, gas, heat, light, power, telephone,

sewerage, and other utilities and services which are supplied to the Expanded Facility,

together with any taxes, fees, or assessments thereon .

4 .9

Forbearance and Cancellation of Prior Arrangement .

[intentionally deleted)

4.10

MAINTENANCE. OPERATOR shall keep all buildings and other improvements

upon the Expanded Facility (and any expansion thereof) in good condition and repair, and

shall make and maintain all additional improvements upon the existing facility (and any

expansion thereof) in good condition and repair for the term of this Agreement .

CITY OF ROCHELLE OBLIGATIONS .

5

.1

Public Information, CITY shall make every reasonable effort to insure that factual

and technically accurate information concerning the landfill facility and the Expanded

Facility is made available to the public .

5 .2 Cooperative Guarantee . CITY will cooperate with the OPERATOR in all matters

relating to the operation of the facility or the Expanded Facility

. The CITY and its

officers, council members and employees will not take any action which has the intended .

or probable effect of interfering unreasonably with the operation or expansion of the

facility or the Expanded Facility including, for example and not in limitation of the

preceding general provisions such actions as the following

: a) the approval of zoning,

siting, or otherwise in the CITY of any transfer station, composting facility, waste

incinerator, landfill, or other facility for the treatment, storage, or disposal of solid waste

provided, however, that if under applicable law the CITY may not lawfully fail or refuse

to approve the zoning or siting of such a facility, then the provisions of this clause shall

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be construed in

such a manner as to require the CITY to prohibit or restrict such uses to

the maximum extent allowed by law; b) the ownership or operation of any facility

described in clause (a) by the CITY

; c) the solicitation or recruitment

of

any facility

described in clause (a) above ; d) the discriminatory adoption, promulgation, or

modification after the date of this agreement of any CITY ordinance, code, tax, fee, or

regulation, d) the referral

of inquiries relating to solid waste disposal to a site other than

the facility without reasonable grounds . The provisions of this subparagraph shall not

restrict in any way the ability of the CITY to enforce the terms of

this agreement, or to

perform its duties under Section 39

.2 of the Act to decide any any application for local

siting approval filed with the City

.

5 .3 Expansion

. CITY will cooperate with OPERATOR in its efforts to obtain siting

approval for an expansion of the existing landfill facility . This provision shall not affect

the City's obligation to decide a site location application under Section 39

.2 of the Act.

5.4

Highway Maintenance . CITY shall suitably maintain all highways within its

maintenance jurisdiction which are utilized by the landfill OPERATOR in its operation .

5 .5

Representations of the CITY

.

The CITY represents and warrants that :

a)

The CITY has the full power, authority and legal right to enter into and

perform this Agreement and the execution, delivery and performance hereof by the CITY

(i) have the requisite approval of all governmental bodies, (ii) will not violate any

judgment, order, law or regulation applicable to the CITY and (iii) do not (A) conflict

with, (B) constitute a default under or (C) result in the creation of any lien, charge,

encumbrance or security interest upon any assets of the CITY under any law, agreement

or instrument to which the CITY is a party or by which the CITY or its assets may be

bound or affected .

b)

This Agreement has been duly authorized, executed and delivered by the

CITY; this Agreement constitutes a legal, valid and binding obligation of the CITY,

enforceable in accordance with its terms, except

as enforcement may be limited by

bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the

enforcement of creditors' rights generally, or by general equitable principles concerning

remedies .

c)

There is no litigation, administrative action, site investigation, or similar

action proceeding, pending or, to the knowledge of the CITY threatened against or

affecting the CITY or the facility (i) challenging the validity of this Agreement or any -

agreements contemplated hereby, (ii) seeking to enjoin the performance by the CITY of

its respective obligations hereunder or thereunder or (iii) which, if adversely determined,

would materially adversely affect the ability of the CITY or the OPERATOR to perform

its obligations.

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d)

As of the date of this agreement, the CITY holds merchantable fee simple

title to the property described on Exhibit B subject only to the tower lease described in

paragraph 4

.7 above.

5.6

Quiet Enjoyment

. Upon payment of the fees and other payments and charges to

be paid by the OPERATOR under the terms of this agreement and the performance by

the OPERATOR of all of its other obligations under this agreement, the OPERATOR

will lawfully and quietly hold, occupy and enjoy the Property described on Exhibit B

during the term of this Agreement .

5 .7

Memorandum . The CITY and the OPERATOR shall execute and record a

memorandum of this agreement in the Ogle County Recorder's Office .

6.

OVERSIGHTRESPONSIBILITIES .

6.1

Monitoring and Review

. The CITY'S designee shall monitor landfill acti ' ies

and review user fee structures .

6.2 Cooperative Guarantee . OPERATOR shall be required to cooperate in all manner

and in prompt fashion with CITY, its authorized agents and representatives in allowing

access to the site, in allowing access to records and in complying with all other

requirements concerning CITY landfill monitoring and inspection program.

6 .3

Document Access . OPERATOR shall provide CITY, free of charge, copies of the

following documents in any manner connected with the landfill property :

a)

those documents contemplated to be submitted by OPERATOR or its

agents or consultants to any state or federal environmental regulatory agency ; and

b)

correspondence with any state or federal environmental regulatory agency ;

c)

those documents filed with or received from any state or federal regulatory

agency relevant to charges, complaints or citations of environmental violations made by

any governmental authority, and

d)

those documents reflecting charges to customers at OPERATOR's facility.

e)

any and all other documents related to operation of the landfill facility and

the disposaUrecycling programs described herein in accord with all federal, state and

local laws, regulations, rules and/or ordinances .

The CITY shall keep confidential all such documents which are entitled to

confidentiality or an exemption from disclosure under the applicable provisions of the

Freedom of Information Act . Whenever practicable, all such documents described herein

above shall be provided to CITY a reasonable time prior to their anticipated submittal by

OPERATOR and/or its agents and consultants to any state, local and/or federal regulatory

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agency, and CITY shall have a reasonable opportunity to review any such anticipated

submitted and make comments and/or suggested changes and modifications to the same .

OPERATOR will provide CITY with any documents received by OPERATOR from any

state, local and/or federal regulatory agency within ten (10) days of receipt thereof .

6.4

Inspection.

CITY, its authorized agents and representatives shall :

a)

have the right to inspect at any reasonable time all of the operations of the

facility,

b)

be permitted to inspect the books and records, pursuant to Section 6 .5,

which OPERATOR agrees to maintain on a daily basis pertaining to the weight of waste

accepted at the landfill and the daily traffic count of vehicles utilizing the landfill (setting

forth the size of each vehicle, the weight of waste each vehicle contains, the classification

of waste, and its County of origin) ;

c)

be permitted to inspect reports concerning compliance with any and all

applicable federal, state and/or local laws, statutes, regulations, rules and/or ordinances

relating to operation of the landfill facility and the disposal/recycling programs described

herein.

6.5 Records and Books

. OPERATOR shall maintain on a daily basis books and

records pertaining to the weight of waste accepted at the landfill and the daily traffic

count of vehicles utilizing the landfill (setting forth the size of each vehicle, the weight of

waste each vehicle contains, the classification of waste, and its County of origin), and

make available to the CITY for inspection on a daily basis copies of all such documents .

7 .

EXPANSION .

7 .1

[Intentionally deleted ]

7.2

[ Intentionally deleted ]

7 .3 CITY Option.

(a) Notwithstanding the provisions of subparagraph 4 .1 above,

during the period of one year which commences on the date of this Restatement, the

CITY shall be entitled to prepare and file an application for local siting approval for an

expansion of the Landfill pursuant to Section 39 .2 of the Act

; provided, however, that the

design, operational requirements, and other terms of any local siting approval sought by

the CITY shall be consistent with the terms of this Agreement .

(b) The OPERATOR, at its expense, will make its staff, consultants, and the

work product from prior applications for site location approval available to the CITY for

use in the preparation of any designs, plans, or studies relating to an application for site

location approval for an expansion of the Landfill pursuant to this Agreement and for use

in connection with the preparation of such an application . The OPERATOR will also

cooperate with the CITY in providing any other information relating to the operation of

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the facility for,use by the CITY or its consultants in the preparation of any such design

and/or application

.

7 .4 Unit 1 .

(a) In the event that the CITY prepares and files an application for local

siting approval for an expansion of the Landfill pursuant to Section 39 .2 of the Act in

accordance with the provisions of paragraph 7 .3 above, the CITY may in its discretion

determine to provide in its application that Unit 1 of the existing Landfill will be

excavated and re-disposed of in a new Subtitle D unit, with the excavation to be

commenced and completed within a commercially reasonable time

.

Subject to the

provisions of this subparagraph, the timing, sequence, and manner of excavation and re-

disposal will be determined by the mutual agreement of the CITY and the OPERATOR,

subject to any applicable requirements of the Illinois Environmental Protection Agency

(the "IEPA") .

(b) In the event that an expansion of the Landfill which is consistent with the

terms of this Agreement is applied for by the CITY in accordance with the provisions of

this Agreement and such an expansion of the Landfill receives final and non-appealable

local siting approval, if the local siting approval requires the excavation and re-disposal

of Unit 1 : (i) the CITY will be responsible for the first eight hundred fifty thousand

dollars ($850,000

.00) of the cost of excavating and re-disposing the Unit 1 waste

; (ii) the

OPERATOR will be responsible for all costs of excavating and re-disposing the Unit 1

waste in excess of that amount ; and (iii) the OPERATOR will be responsible for

obtaining any permits necessary for the excavation and re-disposal of the Unit 1 waste,

and for the selection of contractors, consultants, and engineers to be utilized in the

design, permitting, and performance of the excavation and re-disposal of the Unit 1

waste.

(c) In the event that IEPA requires that the closure of Unit 1 be completed before

the waste in Unit I is excavated and re-disposed, the provisions of this section 7 .4 shall

no longer apply .

(d) The OPERATOR shall comply with the Illinois Prevailing Wage Act in the

performance of any of the work required under this section 7

.4 which is subject to that

act .

(e) In the event that the CITY determines to provide in its application that Unit 1

of the existing Landfill will be excavated and re-disposed of in a new Subtitle D unit, the

Expanded Facility may be designed so that the entire area of Unit I will be incorporated

in the area of the Expanded Facility permitted for the disposal of waste (the "Waste -

Footprint") in such a manner as to create a single integrated waste disposal unit ;

provided, however, that the CITY may, in its discretion, detenmine to exclude up to 12 .51

acres of the area of Unit I from the Waste Footprint .

(f) Notwithstanding any other provision of this agreement to the contrary, in the

event that the CITY elects to exclude more than 12

.51 acres of the area of Unit 1 from the

Waste Footprint in any application for local siting approval for an expansion of the

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Landfill prepared and filed by the CITY pursuant to this agreement, or in the event that

the siting authority imposes conditions in its approval of local siting which have the

effect of excluding more than 12 .51 acres of the area of Unit I from the Waste Footprint,

then in either event, at the written request of the OPERATOR, the CITY and the

OPERATOR shall prepare an analysis to determine the "Cost Differential ." The "Cost

Differential" shall mean the excess of the present value of the estimated capital costs of

the development, construction, and financial assurance of the proposed or approved

expansion during its initial twenty (20) year term over the present value of such costs for

an expansion of reasonably comparable volume which did not exclude more than 12 .51

acres of the area of Unit 1 from the Waste Footprint (the "Alternative Footprint

Expansion"), in the following manner

:

(i) the parties shall first attempt to reach an agreement on the estimated costs ;

(ii) in the event that the parties are unable to agree on the estimated costs within

thirty (30) days following the OPERATOR'S request, the parties shall appoint an

independent financial analyst experienced in the evaluation and analysis of non-

hazardous solid waste management disposal facilities to conduct the comparison

and determine the Cost Differential, whose fees shall be paid by the parties in

equal shares

;

(iii) if the parties are unable to agree on the appointment of a financial analyst

within sixty (60) days after the OPERATOR's request, then the OPERATOR and

the CITY may each appoint, at each party's own expense, a qualified independent

financial analyst experienced in the evaluation and analysis of non-hazardous

solid waste management facilities

(iv) if only one party appoints a qualified financial analyst within the sixty (60)

days, that financial analyst shall determine the Cost Differential ;

(v) if each party appoints a qualified financial analyst and the difference in the

Cost Differential between the two comparisons is not more than twenty percent

(20%) of the lower of the two comparisons, the Cost Differential shall be deemed

to be the average of the two comparisons ;

(vi) if the difference in the Cost Differential between the two comparisons is more

than twenty percent (20%) of the lower of the two comparisons, the two financial

analysts shall (within thirty (30) days of completion of their comparisons)

together appoint a third similarly qualified financial analyst, the cost of whose

comparison will be split equally between the parties, and the written opinion of

the third financial analyst shall establish the Cost Differential;

(vii) at any point in the foregoing process, the parties may agree on a Cost

Differential ;

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(viii) in the

event that the Cost Differential agreed upon by the parties or

determined in the manner set forth herein is more than ten per cent (10%) of the

estimate for the Alternative Footprint Expansion, the fees provided for in

paragraph 4.4

above shall be reduced by an equitable amount sufficient to reduce

the Cost Differential to zero .

7 .5

CITY Siting Authority

. No provision of this Agreement shall be deemed to affect

or limit the authority and responsibility of the CITY to decide an application for local

siting approval under Section 39

.2 of the Act .

8 .

CLOSURE/POST CLOSURE .

8 .1

Responsibility . OPERATOR shall assume responsibility for any and all

closure/post closure responsibilities (financial and otherwise) as listed in approved

closure/post closure plans for both the existing facility and any expansion of the same ;

provided, however that the OPERATOR shall not be responsible for the cost of or

financial assurance for closure or post closure of any expansion pursuant to an

application for local siting approval filed by the CITY unless the expansion is consistent

with the terms of this agreement .

INSURANCE & INDEMNIFICATION .

9.1

Hold Harmless and Indemnification Clause . OPERATOR agrees to indemnify,

hold harmless and defend the City of Rochelle, its agents, servants, and employees, and

each of them against and hold it and them harmless from and against any and all lawsuits,

claims, demands, liabilities, losses and expenses (including court costs, litigation

expenses and attorney's fees) for or on account of any injury to any person or any death

at any time resulting from such injury, or any damage to property, which may arise or

which may be alleged to have arisen out of or in connection with operation, construction

and development of the landfill and any expansion thereof as well as in connection with

the rendering of all other services covered by this Agreement. The foregoing indemnity

shall not apply if such injury, death or damage is caused directly by the willful and

wanton conduct of the City of Rochelle, its agents, servants, or employees or any other

person indemnified hereunder .

9.2 Insurance . OPERATOR shall purchase and maintain such insurance as is

necessary to fully protect OPERATOR and CITY from claims set forth below which may

rise out of or result from OPERATOR's operations, conduct or activities . Such insurance

shall include the City of Rochelle as an additional insured and, if such coverage is

commercially available, shall include "Occurrence" basis wording issued by a company

or companies qualified to do business in the State of Illinois, in the following type and

minimum amounts :

9 .2.01

Claims under Worker's Compensation, disability benefit and other

similar employee benefit acts .

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(a)

9.2.02

Claims for damages because of bodily injury, occupational

sickness or disease, or death of his employees

.

9.2.03

Claims for damages because of bodily injury, sickness or disease,

or death of any person other than his employees

.

9 .2.04

Claims for costs and damages resulting from environmental

hazards caused by operations (both on site and off site) .

9.2.05

Claims for damages because of injury to or destruction of tangible

property, including loss and use resulting therefore of all buildings on the site .

9 .2 .06

Any other source of liability is not excluded by the enumeration of

the above .

9.2 .07

To ensure compliance with the indemnity clause, OPERATOR

shall agree to carry liability insurance not less than the following initial limits of liability

:

Minimum Limits of Liability

Per Occurrence/Aggregate

Automobile Liability

$ 500,000/$ 500,000

Worker's Compensation

Statutory

General Liability

Premises and Operations (a)

$1,000,000/$ 1,000,000

Contractual Liability $2,000,000/$ 2,000,000

Completed Operations $1,000,000/$ 1,000,000

Personal Injury $1,000,000/$ 1,000,000

Environmental Impairment

$ 500,000/$ 500,000

Umbrella Liability

$10,000,000/$20,000,000

Includes damage caused by lasting, collapse, or structural injury, or damage to underground utilities .

9 .2.08

So as to ensure maintenance of adequate levels of future insurance

coverage during term of this Agreement, OPERATOR shall adjust and increase such

levels of insurance coverage outlined above each five (5) year period included in the Host

Agreement to account for increases in the CPI-U-US price index over the preceding five

(5) years .

9 .2 .09

OPERATOR agrees that with respect to the above required

insurance, the City of Rochelle shall :

(a)

Be named as additional insured as their interest may appear ;

(b)

Be provided with thirty (30) days advance notice, in writing, of any

proposed policy cancellation or change ;

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(c) Be provided with Certificates of Insurance evidencing the above required

insurance, prior to commencement of the Host and Operation Agreement, and thereafter

with certificates evidencing renewals or replacements of said policies of insurance at least

fifteen (15) days prior to the expiration of cancellation of any such policies . Said Notices

and Certificates of Insurance shall be provided to :

Office of the CITY Clerk

Rochelle Municipal Building

420 North 6th Street

Rochelle, IL 61068-0601

9 .3

Contractor Responsibility

.

OPERATOR shall assume responsibility for all

services offered in this proposal . CITY shall consider OPERATOR to be a point of

contact with regard to all insurance matters, including payment of any and all charges

resulting from the contract

.

9.4

Third Party Claims.

9.4.01

Third Party Claims

. Promptly after the receipt by any party hereto

of notice of any claim, action, suit or proceeding by any Person who is not a party to this

Agreement (collectively, an "Action") which is subject to indemnification hereunder,

such party (the "Indemnified Party") shall give reasonable written notice to the party

from whom indemnification is claimed (the "Indemnifying Party') . At the sole expense

and liability of the Indemnifying Party and within a reasonable time after the giving of

such notice by the Indemnified Party, the Indemnifying Party shall : (i) notify the

Indemnified Party in writing of the Indemnifying Party's intention to assume the defense

of such action, and (ii) retain legal counsel reasonably satisfactory to the Indemnified

Party to conduct the defense of such Action . The Indemnified Party and the

Indemnifying Party shall cooperate with the party assuming the defense in defending,

compromising or settling any such Action in any manner that such party

reasonably may

request. If the Indemnifying Party so assumes the defense of any such Action, the

Indemnified Party shall have the right to employ separate counsel and to participate in

(but not control the defense, compromise, or settlement thereof, but the fees and expenses

of such counsel shall be the expense of the Indemnified Party

. No Indemnified Party

shall settle or compromise any such Action for which it is entitled to indemnification

hereunder without the prior written consent of the Indemnifying Party, unless the

Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control

of such action in the manner provided above in this Paragraph 11 .2. No Indemnifying

Party shall settle or compromise any such Action in which any relief other than the

.

payment of money damages is sought against any Indemnified Party unless the

Indemnified Party consents in writing to such compromise or settlement

.

9.5

Payment Bonds, The OPERATOR shall provide the CITY with a payment bond

prior to the performance of any substantial improvements at the facility ; provided,

however, that the OPERATOR shall not be required to provide a payment bond for any

contract or subcontract under the terms of which the Contractor or subcontractor waives

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10

.

GENERAL COVENANTS

.

any rights which it would otherwise have to a lien or claim on the property against the

CITY.

10.1

Maintenance of Bonds, Licenses, Etc

. OPERATOR shall maintain in full force

and effect all licenses, bonds, franchises, leases, patents, contracts, and all other rights

necessary to the profitable conduct of its business, including, without limitation, all

notices, permits, or licenses, if any, filed or obtained with regard to compliance with all

applicable federal, state and local statutes, rules, regulations and ordinances which are in

any way related to the development or operation of the landfill or related to the rendering

of all other services provided herein . OPERATOR shall comply with all applicable laws,

statutes, rules, regulations and/or ordinances of all federal, state, and/or local

governmental authorities, including, without limitation, all Environmental Laws .

10.2

Compliance with Environmental Laws, OPERATOR shall conduct its respective

business so as to comply in all material respects with all applicable Environmental Laws,

statutes, rules, regulations and/or ordinances in any way related to the operation of the

landfill or related to the rendering of all other services described herein; provided,

however, that nothing contained in this Paragraph shall prevent OPERATOR from

contesting, in good faith and by appropriate legal proceedings, any such laws, statutes,

rules, regulations and/or ordinances or interpretation or application thereof ; provided,

further, that OPERATOR shall comply with the order of any court or other governmental

body of applicable jurisdiction relating to such Environmental Laws pending prosecution

of an appeal or proceedings for review, and shall have secured any necessary order, stay

of enforcement, execution or other arrangement postponing enforcement or execution

pending such appeal or proceedings for review .

10.3

Notices. If OPERATOR shall receive with respect to the facility : (a) notice that

any violation of any Environmental Law, statute, rule, regulation and/or ordinance may

have been committed or is about to be committed, (b) notice that any administrative or

judicial complaint or order has been filed or is about to be filed against OPERATOR

alleging violation of any Environmental Law, statute, rule, regulation and/or ordinance or

requiring OPERATOR to take any action in connection with the release or threatened

release of "hazardous substances" (as defined by law) into the environment, or c) any

notice from a federal, state, or local governmental agency, court or private party alleging

that OPERATOR may be liable or responsible for costs associated with a response,

cleanup of a release or disposal of a "hazardous substance" into the environment or any

damages caused thereby (including without limitation any notice that OPERATOR is a

"potentially responsible party" as defined by CERCLA)

. OPERATOR shall provide the

CITY with a copy of such notice within ten (10) days of the CITY's receipt thereof . In

addition, OPERATOR shall provide the CITY with notice of the enactment or

promulgation of any Environmental Law, statute, rule, regulation and/or ordinance which

may result in a material adverse change in the business, financial condition, or operations

of OPERATOR as promptly as is reasonably possible after OPERATOR obtains

knowledge thereof

.

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11

.

GUARANTEE OF PERFORMANCE

.

The OPERATOR is an Illinois Limited

Liability Company comprised of both Winnebago Reclamation Service, Inc . (WRS) and

Rochelle Disposal Services, Inc

. (RDS). WRS shall cause its parent corporation,

William Charles, Ltd

., to execute a Guarantee in the form attached to this agreement as

Exhibit E, (a true and accurate copy of which is attached hereto and incorporated herein

by this reference)

.

12 .

DEFAULTS/REMEDIES .

12 .1 Defaults.

The occurrence of any one or more of the following events shall

constitute a material default and breach of this Agreement by OPERATOR

:

12 .1 .01

The failure by OPERATOR to make any payment of rent or any

other payment required to be made by OPERATOR hereunder, after ten (10) days written

notice thereof.

12 .1 .02

The failure of the OPERATOR to correct or remedy promptly any

alleged violation by the OPERATOR of any law, regulation, approval, condition or

permit relating to the development, operation, closure or post-closure care of the facility

or the Expanded Facility. For this purpose, the OPERATOR shall be deemed to have

acted promptly if it corrects or commences the correction of the violation in question

within the time allowed by the governmental agency in question . The OPERATOR shall

not be deemed to be in default under this agreement for any such alleged violations for

which the agency in question seeks a fine, civil penalty, or other similar imposition unless

the agency in question establishes the OPERATOR's willful, persistent and repeated

violation of the law, regulation or permit conditions .

12 .1 .03 The failure by OPERATOR to observe or perform any of the other

covenants, conditions or provisions of this Agreement to be observed or performed by

OPERATOR, where such failure shall continue for a period of thirty (30) days after

written notice thereof from CITY to OPERATOR; provided, however, that if the nature

of OPERATOR's default is such that more than thirty (30) days are reasonably required

for its cure, then OPERATOR shall not be deemed to be in default if OPERATOR

commenced such cure within said thirty (30) day period and thereafter diligently

prosecutes such cure to completion .

12.1 .04

(i) The making by OPERATOR of any general assignment, or

general arrangement for the benefit of creditors ; (ii) the filing by or against OPERATOR

of a petition to have OPERATOR adjudged a bankrupt or a petition for reorganization or

arrangement under any law relating to bankruptcy (unless, in the case of a petition filed

against OPERATOR, the same is dismissed within sixty (60) days) ; (iii) the appointment

of a trustee or receiver to take possession of substantially all of OPERATOR's assets

located at the Premises or of OPERATOR's interest in this Agreement, where possession

is not restored to OPERATOR within thirty (30) days ; or (iv) the attachment, execution

or other judicial seizure of substantially all of OPERATOR's assets located at the

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Premises or of

OPERATOR's interest in this Agreement, where such seizure is not

discharged within thirty (30) days .

12.2

Remedies

. In the event of any default by the OPERATOR hereunder, CITY may

at any time thereafter, by a written notice and without limiting CITY in the exercise of

any right or remedy which CITY may have by reason of such default or breach

:

12 .2 .01

Pursue, make claim under and/or recover on any and all

outstanding bonds obtained and/or posted to insure the proper development and

construction of the existing facility and any expansions thereof during the term of this

Agreement.

12 .2.02 Elect to re-enter, or take possession pursuant to legal proceedings

and to terminate this Agreement

; in which event CITY may recover from OPERATOR

all damages it may incur by reason and consequence of OPERATOR's default including

costs of recovering the premises, attorney's fees, court costs and litigation expenses as

well as the present value at the time of such termination of the balance of any payments

and/or charges reserved in this Agreement for the remainder of the stated original term,

as well as any and all other damages and losses incurred by CITY as a consequence of

OPERATOR's default, all of which amounts shall be immediately due and payable from

OPERATOR to CITY;

12 .2 .03

Re-enter, or take possession pursuant to legal proceedings and

without terminating this Agreement, make such modification and/or improvements or

take such other measures as may be necessary in order to relet the Premises for the

remainder of the then-existing term for the highest bid reasonably obtainable . Upon such

reletting, all payments and other sums received by the CITY from such reletting shall be

applied first to the payment of the costs and expenses of such reletting, and the costs of

such modifications and/or improvements or such other measures as may be necessary;

and second to the payment of all other charges otherwise reserved and unpaid under this

Agreement. In the event such sums received from the reletting are less than those

amounts to be paid by OPERATOR hereunder, OPERATOR shall immediately pay any

such deficiency to CITY as such deficiency amounts arise .

12.2.04

Maintain OPERATOR's right to possession, in which case this

Agreement shall continue in effect whether or not OPERATOR shall have abandoned the

Premises . In such event, CITY shall be entitled to enforce all of CITY's rights and

remedies under this Agreement, including the right to recover past due payments and

charges as well as future payments and charges as they become due hereunder

.

12 .2 .05

Pursue any other remedy now or hereafter available to CITY under

the laws or judicial decisions of the State of Illinois .

12 .2 .06

In the event that the CITY elects to re-enter and take possession of

the facility or the Expanded Facility upon a default by the OPERATOR, whether or not

the CITY elects to terminate this agreement

:

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a)

In the event that the CITY closes the facility or the Expanded Facility

upon re-entry, the CITY shall be entitled to apply any closure/post closure financial

assurances which the OPERATOR has provided to cover the costs of closure, post-

closure care, and any corrective action, and the OPERATOR shall take all steps

necessary to enable the CITY to utilize any and all developmental, operational,

closure/post closure and/or other financial assurances which the OPERATOR has

provided

; however, that the use of any such financial assurances shall not relieve the

OPERATOR from liability for any shortfall

;

b)

If the CITY does not close the facility or the Expanded Facility upon re-

entry

: i) the OPERATOR shall be entitled to a credit against all amounts otherwise then

due from the OPERATOR as a result of its default, in an amount equal to the fair market

value as of the date of termination of then permitted, developed, constructed, and

available air space capacity at the facility plus the fair market value of any improvements

constructed at the facility by the OPERATOR which will be available for future cells or

units at the facility; and (ii) the CITY shall not be entitled to utilize any closure/post-

closure/corrective action financial assurances provided by the OPERATOR to cover any

costs of closure, post-closure care, or corrective action which are attributable to the

operation of the facility or the Expanded Facility after re-entry by the CITY determined

as if the CITY had closed the facility or the Expanded Facility on the date of its re-entry .

c) In the event of uncured default by the OPERATOR, OPERATOR shall

take all steps necessary to enable the CITY to utilize any and all developmental,

operational, closure/post closure or other performance/financial assurances and/or bonds

which the OPERATOR has posted or provided in connection with the terms and

conditions of this agreement .

12.3 Default by CITY . In the event of any failure of CITY to perform any of its

obligations under this Agreement, OPERATOR shall give written notice to the CITY of

the claimed default, and in the event CITY does not cure the default within thirty (30)

days, OPERATOR shall have the option either of curing the default, advising CITY of

the cost of curing the default and reducing its payment obligations by the amount paid by

OPERATOR to cure the default, or to pursue any other remedy now or hereafter

available to the OPERATOR under the laws or judicial decisions of the State of Illinois .

12.4 Default Expenses . In the event of default by either party under the terms of this

Agreement or the breach of any covenant of this Agreement, and the nondefaulting party

brings legal proceedings to enforce and protect its rights and remedies under this .

Agreement, the defaulting party shall pay the reasonable attorneys' fees, court costs and

expenses of the nondefaulting party should it prevail.

12 .5 Interest on Past Due Obligations . Except as expressly herein provided, any

amount due to CITY not paid when due shall bear interest at four percent (4%) over the

Base Rate (the most favorable rate charged by Amcore for its most credit-worthy

commercial customers) charged by Amcore Bank, N .A. Rockford from time to time .

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Payment of such interest shall not excuse or cure any default by OPERATOR under this

Agreement

.

13,

GENERAL PROVISIONS .

13 .1

Severability.

The invalidity of any provision of this AGREEMENT as

determined by a court of competent jurisdiction shall in no way affect the validity of any

other provisions hereof

.

13 .2

Incorporation of Prior Agreements, Amendments . This AGREEMENT contains

all agreements of the parties with respect to any matter mentioned herein. No prior

agreement or understanding pertaining to any such matter shall be effective . This

AGREEMENT may be modified in writing only, signed by the parties in interest at the

time of the modification.

13

.3 Waivers. No waiver by CITY of any provision hereof shall be deemed a waiver

of any other provision hereof or of any subsequent breach by OPERATOR of the same or

any other provision

. CITY's consent to or approval of any act shall not be deemed to

render unnecessary the obtaining of CITY's consent to or approval of any subsequent act

by OPERATOR

. The acceptance of payments hereunder by CITY shall not be waiver of

any preceding breach by OPERATOR of any provision hereof, other than the failure of

OPERATOR to pay the particular payment so accepted, regardless of CITY's knowledge

or such preceding breach at the time of acceptance of such payment . Prior to the

execution of this Agreement, each of the parties has asserted or identified claims against

the other arising under the Amended Host Agreement prior to the date of this

Restatement. Except to the extent that this Agreement expressly provides for a waiver or

release of a claim, this Agreement shall not affect any such claims and shall not constitute

a waiver or release of any such claims .

13 .4 Uncontrollable Circumstances . Notwithstanding anything to the contrary

contained in this Agreement, neither the CITY nor the OPERATOR shall be liable to the

other for any failure or delay in performance of any obligation under this Agreement,

other than an obligation to pay money, due to the occurrence of an Uncontrollable

Circumstance and any such failure or delay shall not constitute an Event of Default under

this Agreement, "Uncontrollable Circumstance" means any act, event or condition (other

than labor strikes) that has had, or may reasonably be expected to have but requiring

present action, a material adverse effect on the rights or the obligations of the parties

under this Agreement, or a material adverse effect on the facility or the ownership,

possession or operation by the OPERATOR of the facility, if such act, event or condition

is beyond the reasonable control of the party relying thereon as justification for not

performing an obligation or complying with any condition required of such party under

this Agreement. Such acts or events may include, but shall not be limited to, the

following :

Rochellel-IostAgreemcnt 13 re i . ions 7 -31-06

28

---

a)

an act of God, landslide, lightning, earthquake, fire, explosion, flood,

sabotage or similar occurrence

; acts of a public enemy, extortion, war, blockade or

insurrection, riot or civil disturbance ;

b)

the order and/or judgment of any federal, state or local court,

administrative agency or governmental body, excepting decisions of federal courts

interpreting the federal tax laws and decisions of state courts interpreting state tax laws, if

it is not also the result of the willful or negligent action or inaction of the party relying

thereon

; provided that neither the contesting in good faith of any such order and/or

judgment nor the failure to so contest shall constitute or be construed as a willful or

negligent action or inaction of such party ;

c)

the failure to issue, suspension, termination, interruption, denial or failure

of renewal of or the imposition of any new conditions upon any permit, license, consent,

authorization or approval essential to the operation of the facility ; provided that such act

or event shall not be the result of the willful or negligent action or inaction of the party

relying thereon and that neither the contesting in good faith of any such order nor the

reasonable failure to so contest shall be construed as a willful or negligent action

or

inaction of such party ;

d)

a Change in Law ; provided, however, that a Change in Law shall excuse

performance for only the period of time which is reasonably necessary to allow the

OPERATOR to comply and shall not excuse all further performance by the OPERATOR

unless the Change in Law is such that it effectively prohibits performance. For example,

the OPERATOR's performance under this agreement would be excused if a Change in

Law made it unlawful to dispose of municipal waste by kind filling or imposed taxes or

other requirements which have the same effect.

e)

the failure of any appropriate federal, state, county or Community public

agency or private utility having operational jurisdiction in the area in which the facility is

located, to provide and maintain utilities, services, water and sewer lines and power

transmission lines to the facility which are required for and essential to the operation of

the facility ;

f)

the failure of any subcontractor or supplier to furnish labor, services,

materials or equipment on the dates agreed to

; provided that such failure is caused by an

act, event or condition that would be an Uncontrollable Circumstance if it directly

affected the OPERATOR and that materially adversely affects the OPERATOR's ability

to perform its obligations, and that the

OPERATOR is not able reasonably to obtain -

substitute labor, services, materials or equipment on the agreed-upon dates ;

g)

the condemnation, taking, seizure, involuntary conversion or requisition of

title to or use of the facility, or any material portion or part thereof by the action of any

federal, state or local government or governmental agency or authority .

RochellcIiostAgreement J3 revisions 7-31- 0

6

29

---

"Change in Law" means (a) the adoption, promulgation or modification or

reinterpretation (including any change in enforcement policy) after the date of this

agreement of any federal, state, county, local municipal, or CITY statute, ordinance,

permit, code or regulation not adopted, promulgated, modified and/or officially published

on or before the date of this agreement

; or (b) the imposition after the date of this

agreement of any material conditions or change in government or judicial policy in

connection with the issuance, renewal, modification or enforcement of any official

permit, license or approval, which in the case of either (a) or (b) establishes requirements

affecting the obligation of either party under this Agreement (other than payment

obligations) or the design, construction, startup, operation, maintenance, cost or

construction of the facility more burdensome than the most stringent requirements (i) in

effect as of the date of this agreement, (ii) agreed to in any applications of the

OPERATOR for official permits, licenses or approvals, or (iii) contained in any official

permits, licenses, or approvals with respect to the facility obtained as of the date of this

agreement or

; c) the failure of any applicable federal, state or local governmental agency

or unit having jurisdiction over the facility to issue any permit, license or approval

necessary for the operation of the Facility after the date of this agreement, which permit,

license or approval was not issuable on or before this agreement . A change in federal, or

state law affecting the taxation of income of the Company shall not be a change in law .

13 .5

Cumulative Remedies . No remedy or election hereunder shall be deemed

exclusive, but shall, wherever possible, be cumulative with all other remedies at law or in

equity.

13 .6 Covenants and Conditions . Each provision of this Agreement performable by

OPERATOR shall be deemed both a covenant and a condition .

13 .7 Binding Effect . Subject to any provisions hereof restricting assignment or

subletting by OPERATOR and subject to the provisions of Paragraph 3 .7, this Agreement

shall bind the parties, their personal representatives, successors, and assigns

.

13.8

Governing Law

. This Agreement shall be governed by the laws of the State of

Illinois .

13 .9 Notice. Notice shall be provided in writing by certified mail to the respective

parties as follows :

CITY :

Office of the City Clerk

Rochelle Municipal Building

420 North 6`h Street

Rochelle, IL 61068-0601

with a copy to :

Rochelle City Manager

Rochelle Municipal Building

RochelleHost Agreemcnl J3 revisions 7-31- 0 6

30

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CITY OF ROCHELLE

Ci

M

. a•

e

Roclie] leHostAgreemcnt ]3 revisions

7 -31-D6

420 North 6th Street

Rochelle, IL 61068-0601

OPERATOR:

Rochelle Waste Disposal, Inc .

1161 S . Seventh St .

Rochelle, IL 61068

with a copy to

:

William Charles, Ltd .

4920 Forest Hills Road

Loves Park, IL 61111

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the

day and year first above written .

31

ROCHELLE WASTE DISPOSAL, INC .

---

I

EXHIBIT A

to

Host Agreement and Agreement

for

Operation/Development

of

City of Rochelle Landfill No

. 2 .

Exhibit A incorporates by reference the Application for Significant Permit Modification,

City of Rochelle, Illinois, dated July 1994, filed by Foth & Van Dyke on behalf of the

City of Rochelle, Illinois, and all modifications, amendments, or revisions to that

Application .

---

Parcel A

EXHIBIT "B"

''/4 o

Y

L

:

C:•

LJ C C . C

The40

North,

SouthwestRange 1/42

East

of

theof southwestthe

3rd

. P1/4.M .,ofEXCEPT

Section

a tract

22, in

describedTownship

as follows

: Beginning at a point on the South line of said

section 22.,

said point being 272 .99 Feet East of the Southwest

corner of said Section, as measured along said South line, thence

feet,

continuing

thence

East

North

(assumed

01 degrees

bearing)

28 minutes

along said

West,

South

224.19

line,

feet,188.70

South

thence

01

North

degrees

88 degrees

26 minutes

28 minutes

West 228West

.93

177feet

.29

to

feet,

the point

and thenceof

beginning, in Ogle County, Illinois

.

Parcel B

All that part of the North 1/2 of the South West 1/4 of Section

22, lying South of the Chicago and Northwestern Railroad right-

South

of-wayin

Township

of

; all

the

40

that

Chicago

North,

part

and

Range

of

Northwestern

the

2

North

East of

West

the

Railroad

1/4

3rd

of

Principal

right-of-waySection

22,

Meridian,lying

; all

Dement Township, Ogle County, Illinois

.

IRC

---

EXHIBIT "C"

WASTE

COT,T .RCTION AGREEMENT

THIS AGREEMENT is made and entered into this day

of April,

1995, by and between the CITY OF R

LLE,

ILLINOIS, a Municipal

Corporation, (hereinafter called the "City"), and ROCHEL E

DISPOSAL

SERVICE, INC ., an Illinois Corporation, (hereinafter called the

"Contractor")

.

RECITALS :

A . The City is interested in negotiating an agreement for

the collection and hauling of all residential, commercial,

institutional, governmental and industrial solid waste and non-

hazardous special waste of the type that Contractor hauls from

time to time ; all residential landscape waste

; and all

residential recyclables which are generated within the City

(meaning and intending to include the City as the boundaries of

the City may be adjusted from time to time in the future during

the term of this Agreement) ;

B . The Contractor is interested in providing for the

collection and hauling of all residential, commercial,

institutional, governmental and industrial solid waste and non-

hazardous special waste of the type that Contractor hauls from

time to time ; all residential landscape waste ; and all

residential recyclables which are generated within the City as

Page 1 of 24

---

I

I

ew

b

'M472 .00 e

EXHIBIT "D"

-'

13

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PART'

ANNEXATION

OFSECTIONS

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22

sT-

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.le-e

AND 27,

ALL IN T. 40 N., R. 2E. OF THE 3RD, P.M.

OGLE COUNTY, IWNOI8

AIcdL &Aa3oses

em

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osa

22930

---

CITY OF ROCHELLE

RESOLUTION R07-10

-----------------------------------------

A RESOLUTION OF THE ROCHELLE CITY COUNCIL

CONCERNING APPLICATION FOR LOCAL SITING

APPROVAL FOR THE EXPANSION OF ROCHELLE

MUNICIPAL LANDFILL #2

----------------------------------------

PASSED BY THE

CITY COUNCIL

OF THE

CITY OF ROCHELLE

THIS 1178

DAY OF APRIL 2007

WITH

_Z_YEAS

AND 0 NAYS

ABSENT OR NOT VOTING:

----------------------------------------

Published in pamphlet form by authority of the City Council of the City

of Rochele, Ogle County, Ittinois, this 12m of APRIL, 2007 .

EXHIBIT

---

CITY OF ROCHE LE

STATE OF ILLINOIS )

COUNTY OF OGLE )

COUNTY OF LEE )

CER7fFICA78

1, Me andarlgoed, hereby oetdfy that lam the dry gaali&d and acting City

Clerk of the City of

Rodntk. Co mtks of Ogk & Lee and Stale oflltimis, and a a such qty Clerk,

I am the keeper of the

jmnrmls, ,,curds and film of the City of Rochelk .

I do benby catty flat the a t ed Resolution, Number P07-10, pteseoted to the Cit Co u

kit on

the II' day of Apd1, 2007 and as elgoed by the Mayor of1L, (Sty of Racbetle ontlre 12° day of April,

2007 and daeeud by the coy (Ietk, allay ippeart from the ofcialrecotds 1f the City k my Care and

IN WITNESS WUZRTAR,

I have lercunto

affind my o®dal

dgtao¢e

and the ompart and

of the CityofRatbefe,Illmoisthis_dayof 20_.

lira W. McXim,y, CMC

City Ck%k City Of Rocbclt

Baiokitlao of We Rabdle City Cwrdl CeraougAppKcxb a fr Loeal SitSg Appmnl for tic

Expansion of RacadleMaaldpalfmd --dl St.

---

---

6

---

The Rochtlk City Cmmdl ions dal avtam moditl= rdmfog tc mt®on (R) dmold be iuq wcdd

w nowmay and somueabk to amomplbh tIm pmpwa of SatWn 39.2

of ft

DBxxa Ea imc,ee nai

Polmtim

Piotection

CookAd

. and

Bandflat

(See

tida ccaditiajs

Atachnamt A,

we not

Special

biwnts,t

Cmmti=s

withregnJsioI

.32) .

pomnl ate dby &eRuinous

INCOMPATIERZ

CRITERIONY

WITH THE

(ii)CHARACTER

: THE FACILITY

OF

IS

THE

LOCATED

SURROUNDING

SO AS TOAREA

M1}WAND

.Eh?TO

MENRME78 THE EPPPCr ON THE VALUE OF THE SURROUNDING PROPERTY .

Tho Applaodhaa demootmied ooaplance with

Crhedm

(IR):

The Rochelle

Aye_Nay City

07 Councils

ti

me midhfmrelatmgto

Absafn

0 cdtmici

(tin) ihoald be impowd as

it iytadteaeon"toe=oapIMhtheja.q

of Staten 39.2 it the flhiztsanthmimenga

Prolatioi Act and mat mch wodftionm not mma0dog with regolmuna pmalpwd by the llbnda

Polfotio CcomolBoard (See Attachment A, Special Condmm 37) .

CRTTEIION (iv): THE FACILITY LS LOCATED OUTSIDE THE BOUNDARY OF

TILE 100-YEAR FLGODP4AN OR THE SITE IS MOOD-PROOFED.

TM Apphcmt hat demmmatd compliance with C atnion (fv):

Aye 7 Abstain 0

NoyCRITERION 0 (v)

: TEE PLAN OF OPERATIONS FOR TEE FACILIT TIS DESIGNED

TOM INIM978 THE VATIGER TO THE SURROUNDING AREA PROM FIRES, SPILLS, OR OILIER

OPERATION ACCIDENTS.

The ApplcS bu demcst med compliame with Cdtmon (v):

NayAyeCATIERION(vl) 70 :271ETRAFFIC

AfsfeinPATIERNSTOORPROMTHEFACILITY

0

ARE

SO DESIGNED AS TO MENQAZBTHE meACr ONEXISTiNG TRAWTC FLAWS .

The Applantlas demomtaad compliance with C ftthon

(vi):

NayAye 6 Abeam

0

The Rochelle City CamcB Side that 6aammndidms smamtg to aged= (vi)

dodd be uaposed

sa meaty mdtenwmbI to &womplish Ow pwpaee of Sectlm 39 .2 of the EBida Envunomeial

PMathai Ad, aid 1St auth conditions me not incondsd wBha

asepomWgaedbyde1Baols

Pollution CoetolBuail (See Attachment A, Special CoMitfim 33-33)

.

CRITERION (vii): IFTHE FACILITY WILL BE TREATING, STORING OR

DISPOSING OF HAZARDOUS WASTE, ANEb4ERMNCY RESPONSE PLAN EXISTS FOR TIM

FACILITY WR ICH INCLUDES NOTIFICATION, OONCAiNMSNT AND EVACUATION

PROCEDURESTO BE USED IN CASE OF AN ACCIDENTAL MEASE .

The ApplicmbosdemonsmadamgplianmwithCmri (vd):

Aye 7 Abaaia 0

aeet6bi

Nay 0

---

C

I

---

---

---

sV

5

gRgRr's

11 1'

gm

fa

~

~

lit

Iti

l. 1

I

I t '

I

I

ti r

gB =s

Q

pj g

o

~A

peg

I

H

pp

---

N

N

f~f C,

n

I

C,

o

n

m

---

BEFORE THE ROCHELLE CITY COUNCIL

OGLE COUNTY, ILLINOIS

IN RE

: THE APPLICATION FOR LOCAL

SITING APPROVAL FOR THE ROCHELLE

MUNICIPAL LANDFILL #2 EXPANSION

ROCHELLE WASTE DISPOSAL'S

MOTION FOR RECONSIDERATION

MOTION FOR RECONSIDERATION

NOW COMES Rochelle Waste Disposal, L .L.C., by and through its undersigned counsel

of record, and pursuant to Section 78-77(c) of the City Siting Ordinance adopted herein requests

reconsideration of special conditions imposed by the City Council as follows :

1 .

On April 11, 2007, the City Council met to consider its decision on the siting

application filed in this proceeding

.

2 . At that time, the City Council approved the application, but imposed additional

special conditions

. Further, a true and accurate copy of the resolution memorializing such action

taken by the City Council is marked Exhibit "A", attached hereto and incorporated herein by this

reference.

3 .

Pursuant to Section 78-77(e), Rochelle Waste Disposal L .L.C. hereby moves for

consideration of those Special Conditions for the reasons set forth below .

4. Special Condition 8 requires that the Operator effectuate litter control along Route

38 east through Creston to Woodlawn Road . However, this requirement is entirely inconsistent

with Condition 35, which does not permit the Operator to transport waste along this segment of

road, thereby negating the possibility of litter problems being caused along this road segment as

a result of operation of the facility . As a result, Special Condition 8 is inconsistent and

unnecessary.

5.

Special Condition 13 provides that the Operator must, within six (6) years of the

date of issuance of an IEPA permit for expansion of the facility, exhume all of the waste

70522926v] 871956

---

deposited in old Unit 1 between 1972 and 1995, during which time waste was deposited

continuously throughout the year

. Moreover, Special Condition 13 permits the removal of waste

from old Unit 1 only during the months of November through March, thereby requiring the

Operator to effectively remove 276 months (23 years x 12 months)

of

accumulated waste within,

at most, and under optimal conditions, 30 months (6 years x 5 months)

; notably, the months

during which waste may be removed are those months most likely to include substantial periods

of inclement weather . As a result, Special Condition 13 is both financially and technically

impracticable, not reasonable and necessary to accomplish the purposes of Section 39 .2 of the

Act, and are inconsistent with regulations promulgated by the Pollution Control Board . In

addition, such condition runs contrary to the spirit, intent, force and effect of other Special

Conditions included in Exhibit A .

6.

Special Condition 22 calls for the erection of six (6) to eight (8) foot high inside

operational screening beans. However, Condition 23 already calls for the Operator to erect a

fourteen (14) foot high permanent perimeter berm

. As a result, Special Condition 22 is

unnecessarily duplicative and redundant, offers no additional benefit to the public health, safety

and welfare, and serves in part to make the project financially and technically impracticable, and

infeasible.

7.

Special Condition 23 requires the erection of a fourteen (14) foot permanent

perimeter been

.

Based upon and given existing physical site conditions, as well as certain

operating considerations, it is technically and financially impracticable to construct a fourteen

(14) foot perimeter berm .

8.

Special Conditions 26 and 28 allow the City's engineers to review whatever plans

and permit applications the Operator submits to IEPA, with the Operator being required to

2

70522926v1 871956

---

3

reimburse the City for all such costs incurred . This requirement is financially burdensome,

impracticable, redundant and unnecessarily duplicative, effectively requiring the Operator to pay

the City's oversight costs . In addition, these requirements run counter to the terms of the Host

Agreement, inasmuch as such costs were not included in the financial terms negotiated with the

City concerning oversight of the facility going forward .

9.

Special Conditions 33 and 34 call for certain road improvements being

undertaken

. While such improvements are arguably necessary, again, there is no basis in the

record to solely impose the cost of such improvements upon the Operator

. Given the limited

scope of the expansion allowed, imposing these road improvement costs on the Operator makes

the project financially infeasible and impracticable, and is, moreover, inconsistent with the

financial terms of the Host Agreement .

10.

Moreover, the City Council has imposed a total of thirty-seven (37) conditions on

the application filed in this matter . Given the limited scope of the project approved, as well as

certain retrictions imposed upon development and operation of the expansion, both by virtue of

the terms and conditions of the application filed herein and the Host Agreement heretofore

negotiated between the City and the Operator, the cumulative effect of satisfying and reconciling

all of these siting conditions makes the project technically and financially impracticable

.

WHEREFORE, ROCHELLE WASTE DISPOSAL, L.L.C., requests that the City Council

reconsider its April 11, 2007 decision to impose the Special Conditions described above .

Respectfirlly submitted,

RO,CHELLE WAST SPOSAL, L .L.C .

Charles F. Helsten

One of Its Attorneys

70522926v1 871956

---

Hinshaw & Culbertson LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

Phone : 8154904900

Fax: 815-4904901

4

70522926v1 871956

---

HINSHAW & CULBERTSON LLP

100 Park Avenue

P .O. Box 1389

Rockford, IL 61105-1389

(815)490-4900

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil

Procedure, hereby under penalty of perjury under the laws of the United States of America,

certifies that on April 20, 2007, she served a copy of the foregoing upon :

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,

Illinois, proper postage prepaid, before the hour of 5 :00 p.m., addressed as above,

70522929v1 871956

Mr

. Bruce McKinney

City of Rochelle

420 N. 6'h Street

Rochelle, IL 61068

Alan Cooper, Esq .

Attorney at Law

233 E. Route 38, Ste . 202

P

.O

. Box 194

Rochelle, IL 61068

Glenn Sechen, Esq.

Schain Burney Ross & Citron Ltd

222 N. LaSalle St., Suite 1910

Chicago, IL 60601

David Tess, Esq .

Tess & Redington

1090 N. Seventh St.

P.O. Box 68

Rochelle, IL 61068

Don Moran

Pedersen & Houpt

161 N. Clark St., Suite 3100

Chicago, IL 60601-3142

Emily Vivian

David Wentworth II

Hasselberg, Williams, Grebe

124 S .W. Adams St,, Ste. 360

Peoria, IL 61602-1320

John McCarthy

45 East Side Square, Suite 301

Canton, IL 61520

---

,,

.

2007

BEFORE THE ROCHELLE CITY COUNCILi

OGLE COUNTY, ILLINOIS

I

IN RE

: THE APPLICATION FOR

)

'1

APPROVAL OF A POLLUTION

)

APPLICANT'S

CONTROL FACILITY OF THE

)

OPERATOR'S MOTION FOR

CITY OF ROCHELLE

)

RECONSIDERATION

The City of Rochelle, by its City Manager, as applicant ("Applicant" or

"City"), hereby submits its response to the motion for reconsideration filed by

Rochelle Waste Disposal, LLC ("Operator"), pursuant to the provisions of Section

78-76(n) of Chapter 78, Article III of the Rochelle Municipal Code ("Siting

Ordinance"), and Section 39 .2 of the Illinois Environmental Protection Act, 415

ILCS 5/39

.2 ("Section 39 .2").

I. INTRODUCTION

In formulating its response to the Operator's motion, the City was guided

by one overriding concern--assuring that the City Council's decision is firmly

grounded in the record established at the public hearing, so that it will withstand

a challenge on appeal . A decision which is seen as being unsupported by the

record would invite an appeal and a reversal by the Illinois Pollution Control

Board

.

In that light, the City deems it appropriate to provide its comments with

respect to two preliminary matters : (1) the legal standards which would apply if

any conditions were challenged on appeal ; and (2) the City's view of the

adequacy of its application, standing alone without any conditions .

I

EXHIBIT

D

---

A

. Applicable Legal Standards

As amended in April of 2006, Section 78-77(c) of the Siting Ordinance

provides that the City Council may consider any motion for reconsideration, and

any responses to the motion, filed within the specified time periods

. The

Operator's motion for reconsideration, which was timely filed, requests the City

Council to reconsider its decision to impose certain conditions on siting approval .

The City Council's discretion to grant or deny any of the requests in the

motion, like its decision to impose conditions in the first place, is not unbounded,

but is limited by certain rules included in Section 39 .2, and in court decisions

interpreting Section 39.2.

Any condition, in order to be a legally valid condition, must be

. . .reasonable and necessary to accomplish the purposes of this Section . . . ." 415

ILCS 5/39 .2(e) . A condition which may be reasonable for accomplishing some

other legitimate purpose, if it is not also reasonable and necessary to accomplish

the purposes of Section 39

.2, would be invalid and subject to being overturned

on appeal .

The purposes of Section 39 .2 are the nine criteria which must be met for

siting approval . Accordingly, in order for a condition to pass legal muster, the

imposition of that condition must be "reasonable and necessary" in order for one

or more of the criteria to be met .

In determining whether a particular condition is, or is not, reasonable and

necessary, Illinois Courts will examine the record made in the public hearing . If

there is no evidence in the record to support a finding that the condition is

2

---

reasonable and necessary in order to satisfy one or more of the nine criteria, the

condition will be overturned on appeal . Moreover, even if there is some evidence

to support such a finding, but the manifest weight of the evidence is to the

contrary, the condition will be overturned .

In considering an appeal of conditions in Will County Board v. Illinois

Pollution Control Board, 319 Ill . App . 3d 545 548 (3'd Dist. 2001), the Illinois

Appellate Court described the applicable legal rules in these words

:

"When reviewing the board's decision on a siting location application, this

court must determine whether it is against the manifest weight of the evidence . A

decision is against the manifest weight of the evidence if the opposite result is

clearly evident or indisputable [citation omitted] . The board may only impose

conditions that are reasonable and necessary to meet the waste needs of the

area . 415 ILLS 5/39

.2(West 1998) ." (emphasis supplied) .

The City Council should consider the Operator's motion carefully in light of

these legal rules, and in light of the testimony and evidence in the record . Even if

a condition might have merit for other reasons, if the record fails to establish that

it is "reasonable and necessary" to accomplish the goals of any of the nine

criteria set forth in Section 39 .2, it should be reconsidered and deleted.

B

. Adequacy of the City's Application

The City's Application was the product of exhaustive research,

investigation, and creative effort by the City's consulting engineers, Shaw

Environmental, in consultation with the City staff, the City Manager's own

consultant, and the Operator's representatives . The end result, in the City's

opinion, was an application for a landfill expansion which met all of the nine

criteria without the necessity of any additional conditions, and which was

3

---

consistent with the Host Agreement between the City and the Operator

. The

provisions of the application relating to the landfill design, the operational plan

and the traffic plan all impose conditions which are considerably more rigorous

than previous requirements, and which will result in a high-quality landfill

.

Additionally, the City, through the testimony of its City Manager, has committed

to more vigorous oversight of operations, and a more open-door policy to

neighbors who might have complaints

.

Notwithstanding its firm belief in the adequacy of its application, the City is

cognizant of concerns in certain areas which came to light during the public

hearing-primarily concerns about litter and daily cover, traffic flows by large

trucks and security at the facility

. To the extent the City Council feels that

additional conditions are reasonable and necessary in any of these areas in

order for one or more of the nine criteria to be met, the City believes that, given

the comprehensive nature of the conditions already imposed in the application,

only minimal additional conditions would be reasonable and necessary

.

With the foregoing considerations in mind, the City takes the following

positions with respect to the specific requests contained in the Operator's motion

for reconsideration

.

II

. CONDITION 13

(EXHUMATION OF UNIT 1 WITHIN SIX YEARS)

The City believes that Condition 13 (requiring exhumation of Unit 1 within

six years, subject to extension by the City Council) very likely does not meet the

applicable legal standards, and would invite a successful appeal because it is not

supported by the record .

4

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5

The record in this case contains considerable evidence that the

exhumation of Unit 1 is reasonable and necessary to accomplish the purposes of

Criterion 2 (public health, safety and welfare) . However, there is, to the best of

the City's knowledge, no testimony or evidence whatsoever that supports the

proposition that it is necessary to complete the exhumation in six years in order

for the public health, safety and welfare to be protected . If the City is correct,

then it can reasonably be anticipated that Condition 13 will simply invite an

appeal to the Illinois Pollution Control Board, which will inevitably overturn it as

being unsupported by any evidence, or against the manifest weight of the

evidence .

What the record does support is a more flexible requirement, consistent

with the application and the testimony . In Section 2 .6 of the City's application

(pages 2

.6-24 through 28), Shaw Environmental discussed the proposed

exhumation at length . Copies of those pages are attached to this response as

Exhibit A. The application sets forth plans and procedures for the exhumation,

including the equipment to be used, the method of excavation and cover, the

proposed hours and times of the year when exhumation would occur, the nature

and quantity of cover used, procedures to be used in the event hazardous waste

is encountered, the air monitoring program that would be required to avoid

dangers from explosive gases and VOCs, stormwater management requirements

during exhumation, and additional safety procedures to be implemented and

safety equipment to be utilized during exhumation .

---

Taking into account what is presently known about Unit 1, and the

additional requirements that the application would impose, Shaw Environmental

has concluded that "[i]t is anticipated that relocation of Unit I will be performed

over a 5-10 year period ." (Application, Section 2 .6, page 2.6-24).

The only witness who testified concerning the timing of the exhumation

was Devin Moose of Shaw Environmental . Mr. Moose's testimony on this point,

in answer to questions from the City Council's attorney, is found on pages 321-

323 of the transcript for January 25, 2007 . A copy of that portion of the transcript

is attached to this response as Exhibit B . Mr. Moose's testimony describes the

sequencing of the exhumation and concludes that "we think that that's going to

take on the order of about 10 years to achieve that ."

To the best of the City's knowledge, the Shaw analysis of the detailed

requirements of exhumation and the anticipated time reasonably necessary to

complete that task, is the only testimony in the record of this case addressing

those issues in any thoroughgoing and analytical manner . To the extent that

public comment may have requested the City Council to impose a firm deadline

shorter than Shaw's anticipated time period, such comments were not supported

by any detailed' analysis like that contained in the application . Accordingly,

Condition 13 does not meet the legal standards of Section 39 .2, and is likely to

be overturned on appeal .

The flexibility included in the application's suggested 5 to 10-year

completion exhumation period is consistent with the language of the Host

Agreement, which provides, in Section 7 .4, that the exhumation shall

6

---

7

" . . .be

commenced and completed within a commercially reasonable time

."

Condition 13, by imposing an arbitrary six-year completion date, is

contrary to the evidence . The proviso that the Operator may come back to a

future City Council and ask for an extension "for good cause" does not solve the

problem because it does not provide any standards for the City Council's

decision as to what constitutes "good cause" . While a more definite timetable

might seem to be desirable, it is simply impractical under the circumstances

For the reasons set forth, the City respectfully suggests that Condition 13

be reconsidered and that, upon reconsideration, it be deleted . Should the City

Council see fit to impose any condition in this regard, it should impose a

condition that the exhumation "be commenced and completed within a

commercially reasonable time" .

Such a condition might read as follows :

"13 . The exhumation of waste in Unit 1 shall be commenced and

completed

within a commercially reasonable time. The waste exhumation

and redisposal . . . ."

Alternatively, if a deadline for completion is desired that has some basis in

the record, the condition might read as follows :

"13. The exhumation of waste in Unit 1 shall be commenced and

completed

within a commercially reasonable time, but in no event later than

ten (10) years from the date an IEPA permit is issued for the expansion,

except as otherwise provided by the City Council upon a showing that the

exhumation could not be completed within that time period despite the

Operator's commercially reasonable efforts. The waste exhumation and

redisposal . . . ."

---

8

III . CONDITIONS 33 AND 34

(COST OF MULFORD ROAD IMPROVEMENTS)

Conditions 33 and 34 impose upon the Operator the obligation to improve

Mulford Road, at the Operator's sole cost and expense, in two phases

. The first

phase requires improvements between Route 38 and the existing landfill

entrance before any waste is accepted at the expanded facility . The second

phase requires the improvements to be extended from the existing landfill

entrance to Creston Road no later than the date on which the proposed new

entrance for the expansion is built and completed as required in Condition 16,

which is five years from the issuance of an IEPA permit for the expansion .

The Operator has conceded, at least for the sake of its motion, that these

road improvements may be necessary, but has argued that there is no basis in

the record to show that it is either reasonable or necessary that the entire cost of

these improvements be borne by the Operator .

The City believes that the record supports the allocation of all of the costs

of the first phase to the Operator, and therefore opposes the Operator's request

for reconsideration of Condition 33

. The City also believes that the record

supports the allocation to the Operator of the costs to extend the improvements

from the existing landfill entrance to the new landfill entrance to be located some

1,500 farther south .

However, the City is concerned that the record may not support the

allocation to the Operator of all of the cost of extending the improvements from

---

the new landfill entrance south to Creston Road . Accordingly, the City suggests

that Condition 34 be reconsidered and modified.

The evidence suggests that Mulford Road south of Route 38 presently

serves primarily the landfill, but that very little traffic uses the portion of Mulford

Road between the landfill entrance and Creston Road .

Figure 2 in Section 6 of

the application ("Existing Peak Hour Volumes") is attached hereto as Exhibit C .

It shows that 12 vehicles travel south from Route 38 during the morning peak

hour, but no vehicles approach the intersection of Mulford Road and Creston

Road from the north, while 22 vehicles travel south from Route 38 during the

evening peak hour, but only 2 vehicles approach the intersection during that peak

hour

. Likewise, only 6 vehicles travel north on Mulford Road from Creston Road

in the morning peak hour, and the same number in the evening peak hour.

On the other hand, should the area around the expanded landfill facility

develop as an industrial zone, as is currently planned, it can be anticipated that

Mulford Road would become a more important traffic route, due to its connection

to Creston Road, which becomes First Avenue in Rochelle, and its connection

north all the way to Rockford . In that event, there would be a necessity for

Mulford Road to be improved from Route 38 all the way to Creston Road, but the

necessity would not arise solely from traffic generated by the landfill .

Given the anticipated growth in the area, residential and industrial, the

improvement of Mulford Road certainly makes sense . However, the allocation of

all costs of the second phase improvement of Mulford Road to the Operator,

when only a portion of the need would be attributable to this landfill expansion,

9

---

10

does not seem to be supported by the record . The City's expert, Michael

Werthmann, did not suggest that the landfill expansion would necessitate the

second-phase improvements of Mulford Road south of the new landfill entrance,

and no other witnesses testified to the contrary

. Absent such evidence in the

record, the City is concerned that Condition 34 may invite an appeal and

reversal .

The most rational manner to allocate the second-phase costs of improving

Mulford Road south of the new landfill entrance, in the City's view, would be

based upon a traffic study which would determine the percentage of traffic using

that section of the road which is generated, or can reasonably be expected to be

generated, by the expanded landfill, and an allocation of a portion of the costs for

that section to the Operator based on the results of the study .

For these reasons, the City suggests that Condition 34 be reconsidered

and modified in a manner similar to the following

:

"34. The improvements to Mulford Road as described in special condition

33 above shall be completed from the existing landfill entrance to Creston Road

no later than the date on which the proposed new entrance for the expansion is

built and completed as required in Special Condition 16 . The Operator shall

pay all costs of said improvements to the new landfill entrance, and a

portion of the cost of the improvements from the new landfill entrance to

Creston Road proportionate to the anticipated traffic attributable to the

expanded facility, as determined by a traffic study ."

IV. CONDITIONS 8, 22, AND 23

(ADDITIONAL LITTER CONTROL AND BERMING)

Conditions 8, 22 and 23 impose upon the Operator certain requirements

for litter control and berming which were not required in the City's application .

The City believes that its application includes requirements for litter control and

---

Il

berming which are entirely adequate to produce a neighbor-friendly landfill

expansion

. The testimony of Shaw Environmental and Chris Lannert established

that these requirements were carefully considered . To the best of the City's

recollection, there was no testimony that the requirements set forth in the

application were inadequate, and no testimony with respect to any necessity for

additional litter control or berming requirements beyond those set forth in the

application and testified to by the City's witnesses .

The City respectfully suggests that the City Council consider whether

there was any evidence to support a finding that the additional requirements are

"reasonable and necessary" (or that the requirements set forth in the application

are not themselves sufficient) to accomplish the purposes of any of the nine

criteria in Section 39 .2 . Should there be doubt on these matters, the City

respectfully suggests that these conditions be reconsidered and deleted .

V . CONDITIONS 26 AND 28

(COSTS OF CITY REVIEW OF PLANS AND PERMIT APPLICATIONS)

The Operator's request that the City Council delete Conditions 26 and

28, insofar as they require the Operator to reimburse the City's costs for

reviewing

plans and permit applications, could perhaps withstand a challenge on

appeal because of the Operator's conceded poor operating history .

Nevertheless, the City can understand the Operator's position that imposing

these costs upon the Operator is unnecessary and somewhat unfair . All things

considered, while it does not consider this to be a major issue, the City would

---

have no objection to this condition being reconsidered and modified to delete the

provisions that impose such costs on the Operator

.

CONCLUSION

For the reasons set forth in this response, the City respectfully requests

that the City Council grant the Operator's motion, in part, and deny it in part, by

reconsidering Conditions 8, 13, 22, 23, 26, 28 and 34, and upon reconsideration,

deleting or modifying those conditions in conformity with this response

. By so

doing, the City Council would effectively preclude a successful appeal of its

decision . The overall result would still incorporate all of the requirements of the

City's application, resulting in a high-quality and neighbor-friendly landfill .

Dated : April 27, 2007

CITY OF ROCHELLE, Applicant

BY:

12

ALAN H

. COO ER

BY

: G

~

C "

-Z

GLENN C . SECHEKJ

Its Attorneys

ALAN H . COOPER

Attorney at Law

233 East Route 38, Suite 202

P . O . Box 194

Rochelle, IL 61068

(815) 562-2677

---

PROOF OF SERVICE

The undersigned certifies that a true copy of the foregoing Response to

Motion for Reconsideration was served by electronic mail or fax and regular mail

upon each of the following attorneys of record at the addresses shown, on April

13

ALAN H . COOPER

ALAN H. COOPER

Attorney at Law

233 East Route 38, Suite 202

P . O . Box 194

Rochelle, IL 61068

(815) 562-2677

E.\MyFiles\city Iandrll\citylandfill

.responsetomotreconsideration .doc

27, 2007

:

Glenn C

. Sechen

Donald J . Moran

David D . Tess

Schain, Burney, Ross & Citron Pedersen & Houpt

Tess & Redington

222 N . LaSalle Street

161 N . Clark Street

1090 N

. 7th

Street

Suie 1910

Chicago, IL 60601

Rochelle, IL 61068

Chicago, IL

Charles F

. Helsten

David L. Wentworth II

Hinshaw & Culbertson

Emily Vivian

100 Park Avenue

124 S.W . Adams Street

Rockford, IL 61101

Suite 360

Peoria, IL 61620-1320

---

A list of groundwater parameters and sampling frequencies has been developed in

accordance with IEPA regulations . The groundwater monitoring wells will be sampled on both

a quarterly basis and an annual basis during the operating life of the landfill and post-closure

care period . All sampling results will be submitted to the IEPA . A more detailed description

of the groundwater monitoring program is provided in Section 2

.8 of this application .

Stormwater and Erosion Control

A Stormwater Management Plan has been developed for the Rochelle Municipal Landfill #2

Expansion to ensure the safe and efficient conveyance of stormwater runoff

. Runoff from the

completed landform will flow into a series of perimeter ditches

. These perimeter ditches will

convey the stormwater into detention basins . All drainage ditches and culverts will safely

convey the minimum 100-year, 24-hour storm flows without overtopping as described in

Section 2

.4 of this application .

A comprehensive erosion control plan has also been developed that will utilize a variety of

techniques to prevent erosion including temporary and permanent seeding, straw bales, fabric

filters, sodding and terrace berming . Wet-bottomed detention basins planted with aquatic

grasses will be used to facilitate sedimentation and improve water quality prior to discharge .

A complete description of the stormwater management plan and erosion control plan is

included in Section 2 .4 of this application .

Waste Relocation Procedures

Introduction

Unit 1 of the Rochelle Municipal Landfill #2 will be excavated so that the waste is placed within

a landfill that has a composite liner, leachate collection system, landfill gas management

system, and a groundwater monitoring system

.

The following plan and procedures are intended to supplement the current/proposed operating

plan at the Rochelle Municipal Landfill #2 and include a generalized operating plan for the

waste relocation procedures

.

Unit 1 was filled over a 20 year period . It is anticipated that relocation of Unit 1 will be

performed over a 5-10 year period

.

Equipment,

The list of equipment required for waste relocation will vary occasionally depending on

equipment availability, seasons, and waste relocation rates

. Waste relocation is anticipated

to be accomplished with the equipment listed in Table 2 .6-2 .

Equipment capable of

performing comparably to the listed equipment is expected to be maintained on site

throughout the operational life of the landfill . Additional equipmentwill be leased or purchased

as necessary .

sn~

,

EXHSBIT~}

2.6-24

Rochelle Municipal Landfill #2 Expansion

T :IProjectsl2006112250- Rochelle Landfil/Siting Applicationl2-6 operation . wpd

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Excavation

Operations

The proposed excavation method will be using a front end loader similar to earth excavating

procedures

. Final cover and clean soil may be stockpiled near the excavation for use as

cover or fire prevention

.

The proposed hours of operation for waste relocation will be between 6 :00 am to 5:00 pm,

Monday through Saturday . This will allow adequate time for all the reclaimed waste to be

landfilled . Waste relocation will typically not occur on Sundays and certain holidays unless

otherwise approved by the City of Rochelle and the IEPA .

Waste relocation will not occur during months where the average daily temperature is above

65°F, unless it is demonstrated that odors will not be an issue . Based on existing temperature

data, it is anticipated that waste relocation will only be conducted between October 1" and

March 1 5` absent express written approval by the City of Rochelle Council .

Reclaimed Soil and Soil Cover

The final cover material will be stripped off and will be stockpiled for future use as daily cover,

vegetative layer, and/or berm construction provided it is free of waste

.

The soil from the

relocated waste may be reused as daily cover as permitted by the IEPA .

A minimum of six inches of daily cover material will be placed over the any exposed waste at

the end of each working day . A minimum of one foot of intermediate cover will be utilized on

all areas not actively excavated within 60 days or more . All areas of the landfill will have

intermediate cover during the summer months when excavation ceases due to high

temperatures . Intermediate cover will be sloped to provide adequate drainage and prevent

ponding of water . The placement of daily and intermediate cover also serves to control litter,

dust, odor, vector, and potential fire problems .

Liquid Wastes

Any barrels found during excavation that could potentially contain liquid wastes will be carefully

removed and taken to a hazardous waste treatment facility, where the contents of the barrel

will be tested and properly disposed of . Leachate will be removed from the excavation trench

using an explosion-proof pump to an existing leachate storage tank or shipped directly to a

treatment facility for the current landfill . It is anticipated that the leachate will be treated at a

wastewater treatment plant that accepts leachate in compliance with the existing permits for

the current operating landfill .

2.6-25

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PROPOSED

TABLE

EQUIPMENT

2.6-3

LIST

1

Bulldozer

Air Monitoring Equipment

1 Front End Loader

1 Grizzly Feeder

1 Excavator

Portable Light System

2 Haul Trucks

Other as necessary

---

Air Monitoring Program

An air monitoring program will be developed in conjunction will the IEPA, NESHAP, and OSHA

regulations for the excavation area and the waste separation facility when in use

. Monitoring

will be performed for explosive gases and VOCs

. All persons will wear respirators until it is

shown that the workers are not at risk from harmful gases .

Continuous sampling of

combustible gases will occur during any excavating operations, and will be compared to OSHA

exposure limits . If levels of combustible gases reach 50% of the LEL (lower explosive limit)

then any exposed waste will be covered and excavation operations will cease until levels

return to background levels . If this becomes a recurring problem then a gas extraction system

will be implemented .

Stormwater and Erosion Control

A Stormwater Management Plan has been developed for the Rochelle Municipal Landfill #2

Expansion to ensure the safe and efficient conveyance of stormwater runoff

. To supplement

this plan, temporary perimeter berms will be constructed around the waste relocation areas

to minimize surface run-on

. The temporary berms will be constructed from on-site soils and

sloped 2H

:1V. If possible all stormwater runoff will be directed to the site's stormwater

management system. However, the initial relocation of Unit 1 will be performed prior to the

relocation of the existing drainage ditches and the development of the stormwater basins . As

such, the operator will ensure that stormwater

is managed through the use of best

management practices as described in Section 2 .4

During waste relocation the operator will be responsible for ensuring stormwater is diverted

away from waste or it is contained and managed as leachate . The operator will also take all

reasonable efforts to minimize standing water and promote natural drainage of stormwater .

Erosion control measures will be employed around disturbed areas to minimize sediment

.

All

erosion control structures will be routinely inspected and maintained to function properly in

accordance with the NPDES permit and the Stormwater Plan identified in Section 2 .4 .

Safety Procedures

It will be the responsibility of the Site Manager to ensure adherence with site safety procedures

by all personnel working on the waste relocation project. The following text outlines steps

designed to help minimize hazards that may be present during the waste relocation

operations .

•

Waste Characterization . Prior to any waste excavation, borings may be placed into

the waste to determine the depth of waste and general waste composition by a

company that has experience drilling into closed landfills .

•

Excavation . Before any excavating begins, temporary berms will be constructed

around the planned excavation trench . A front end loader will then scrape off the final

cover and stockpile the soil for future daily cover use or fire prevention .

The mined

waste will be loaded into a dump truck then hauled to the active face of the landfill .

•

Hazardous Waste . To supplement the health and safety plan (Section 5.0), the

following precautions will limit exposure to any hazardous waste that is encountered

in the excavation area .

Prior to beginning work each day, a safety meeting will be held to address

potential hazards .

2.6-26

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T:IRrojecls120061121250-Rochelle Landfil1SilingApplicalionl2-6 opera Uon wed

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Sh

we

a

During the excavation, the work area will be monitored periodically for explosive

gases and VOCs .

Gloves, pants, and long sleeves will be worn when working with waste or

contaminated media .

Contact with potential contaminated substances will be avoided .

The number of ground personnel in the work area will be limited

.

Approved respiratory protective devices and protective clothing will be

available .

In the case of injuries medical assistance will be identified and arranged for

.

The location, telephone number, and transportation capabilities of the nearest

emergency medical facilities will be posted at the site .

O

Safety Equipment . Previous waste relocation projects have shown that level "C"

personal protection equipment (PPE) was required during excavation operations

.

Level "C" PPE consists of a chemical canister, full-face respirator, chemical splash

protection, gloves, and boots . If it is demonstrated that no hazardous chemicals are

present in the waste or air, then level "D"'PPE (standard work uniform, hard hat,

gloves, and steel-toed boots, no respiratory protection) will be allowed . The excavation

equipment (excavator, dump trucks, and bulldozer) will be required to have a five

minute emergency escape breathing apparatus mounted on the machinery (e

.g., Scott

Escape Pak) . The landfill facility will also maintain extra safety equipment, fire

extinguishers, first aid kits, radio communicators, and an eye washing station

.

The following will be kept on site and used by all employees at the excavation area

:

Hard hats worn when near moving or mechanical equipment, or if working in

confined spaces or where overhead hazards may exist (e .g ., in excavations or

around scaffolding) .

Steel-toed shoes, or other appropriate protective footwear .

Safety glasses and/or face shields, as appropriate .

Chemical resistant gloves and clothing for working with wet solid waste or when

exposure to leachate or condensate is expected .

Hearing protection for working conditions as described by OSHA

.

Other protective equipment available for use as necessary :

Chemically protective overalls

(e.g.,

Saranex, Tyvek, etc

.) .

Steel-toed, steel shank neoprene boots .

Chemically protective gloves (e .g ., Viton, neoprene, notrile) .

2

.6- 27

Rochelle Municipal Landfill #2 Expansion

TiProjecls12006\121250-Rochelle Landfill\Si(ingApplicationl2-6 operauon

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Sh®®w

Respiratory protection, as appropriate for the level of hazard (e .g .,

half-face

and/or full-face APRs with NIOSH-approved organic vapor/acid gas (OV/AG)

cartridges or canisters and appropriate dust/mist/fume capability) .

A pressure demand SCBA, fitted with a pressure-demand type regulator and

20-minute bottle or a supplied air system .

The following safety equipment, if applicable, will be provided at the excavation site in

quantities sufficient to cover all employees

:

Clean water, soap and paper towels .

First aid kit, eye wash station, stretcher and blanket.

Two fire extinguishers -

20

:A-80 :BC.

"No smoking" signs and/or barrier tape .

•

Two parachute-type harnesses and safety line (for use in excavations,

manholes, trenches, vaults, etc .)

Combustible gas analyzer (CGA)/oxygen indicator .

•

Hydrogen sulfide indicator (direct reading instrument) .

Additional monitoring equipment for toxic vapors and aerosols .

•

Barricades and/or barrier tape .

•

Air-moving equipment that can provide ventilation if working in substandard air

environments (excavations, trenches, etc .) .

•

Fire-resistant blanket suitable for extinguishing a small fire or providing heat to

personnel in shock .

Construction equipment equipped with vertical exhaust or spark arrestors .

Workers will remove and decontaminate protective equipment at the end of

each work day and prior to leaving the site or entering landfill offices .

2

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In Totidem Verbis, LLC (ITV)

(815) 453-2260

321

be deposited and disposed of in Unit 1?

Absolutely .

And with respect

to Unit 1

are you aware of any

information or facts that would indicate

that

Unit 1 has in any way affected or impacted any

groundwater in the area?

Nothing in the aquifer .

Does that fact suggest to you anything about

the nature

of

the design

of that unit and how it

has functioned over these 30-some

years?

Well, I guess design might be a strong word for

that

unit, but it does --

it

is

empirical

evidence that

the natural

geological materials

are providing protection to some degree to the

aquifer below

Now, we've talked about the fact that the waste

in that unit is proposed to be exhumed as part

of this proposal ; is that correct?

Yes ;.

Can you describe for us what is anticipated by

way of the scheduling and the implementation,

exhumation

of

that waste in

conjunction

with the

operation of the proposed expansion?

Sure .

Leah, can you go to the

phasing

diagram .

ExH

IBi~r r3

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In Totidem Verbis, LLC (ITV)

(815) 453-2260

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As I testified and contained

in

the

application, the intention is to begin with

exhumation in the initial portions of the

expanded

facility

.

The waste

that is

currently -- or Unit 1 currently sits

in a

portion of Cell One and a portion of this

northeast

detention basin .

The

thought would be

that we

would exhume that waste,

excavate it out

of this cell and use if for the vertical

expansion in Unit 2 and in Cell One all of the

waste would be in a lined facility .

We would

start that in the initial years of operation and

part of the reason we selected this location is

really two-fold ; 1) to minimize haul distance,

the amount of distance that we

have to

move that

waste into a secure facility .

That reduces our

operating costs and make

this -- makes this

facility more competitive .

It also reduces the

env;i

;ronmental -- or potential

environmental

impact, the shorter distance we have to move

this, the less probability we have for impact .

We're also doing it in the initial years

because the sooner we get that waste into a

lined cell the less stress there is to the

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In Totidem Verbis, LLC (ITV)

(815) 453-2260

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environment and we think that that's going to

take

on the order

of

about

10

years

to achieve

that .

Are there any procedures proposed to control

any

odors that may be brought about

as a result

of the exhumation and redisposal of this waste

in Unit 1?

The best procedures

that

I found are daily

covering and use of intermediate covers

.

I

did

a

project

in

Indiana where

we exhumed some waste

at two facilities,

in Newton County

and

(Inaudible) County and we were able to use a

vertical wall of limited height when we exhumed

the

waste .

We

exhumed it with a

backhoe,

the

vertical wall

stayed stable

and we used

a

sprayed-on daily cover for that portion and in

one area we left it sprayed

on all summer

long,

It worked out very well, actually, created a

ntde seal of the vertical wall, made it a nice

small active working phase and it was

impermeable, no odor

and

no water was able

to

infiltrate and we just needed to worry about

stability of that wall .

So we would use daily

covers

and I

would

use soil daily

covers

and I

---

ZO

ECT :

CRESTON

I

ROAD

ROCHELLE LANDFILL EXPANSION

ROCHELLE, ILLINOIS

L 43 (60)

-- x-186 (470)

TITLE :

4328

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NOT TO SCALE

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UNION PACIFIC

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EXISTING PEAK HOUR VOLUMES

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FIGURE NO

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TRAFFIC SIGNAL

*--19 (33)

---

BEFORE THE ROCHELLE CITY COUNCIL

OGLE COUNTY, ILLINOIS

IN RE

: THE APPLICATION FOR LOCAL

SITING APPROVAL FOR THE ROCHELLE

MUNICIPAL LANDFILL #2 EXPANSION

RESPONSE TO MOTION FOR RECONSIDERATION

NOW COMES Concerned Citizens of Ogle County ("CCOC"), participant in the

above-captioned matter, by and through its attorneys, HASSELBERG, WILLIAMS,

GREBE, SNODGRASS & BIRDSALL, and states as follows :

1 .

On April 11, 2007, the Rochelle City Council ("City Council") met to

consider its decision on the siting application filed in the aforementioned proceeding

.

2 .

On April 11, 2007, the City Council voted to approve the Application

subject to thirty-seven (37) special conditions ("Special Conditions") .

3.

Pursuant to Section 78-77(c) of the Rochelle Ordinance ("Ordinance"), on

April 20, 2007, Rochelle Waste Disposal, L .L.C. ("Operator") filed a Motion for

Reconsideration of those Special Conditions ("Motion for Reconsideration")

.

4. Your Applicant, the City Manager of the City of Rochelle, did not timely file

a motion to reconsider or otherwise timely join in the Operator's Motion for

Reconsideration .

5.

For the reasons set forth below, the City Council should not reconsider its

initial decision of April 11, 2007, or if it does, strengthen the Special Conditions, not

further water them down .

6. The Hearing Officer, pursuant to Sections 78-76(n) and (o) of the

Ordinance, filed his Findings of Fact, Conclusions of Law and Recommendations,

stating, in part, as follows :

1

EXHIBIT

---

"IV. PREVIOUS OPERATING EVIDENCE

Section 39 .2(a) of the Act provides, in part, that the governing body

of the municipality may also consider as evidence the previous operating

experience and past record of convictions or admissions of violations of

the applicant (and any subsidiary or parent corporation) in the field of solid

waste management when considering criteria (ii) and (v)

under this

Section. The siting ordinance contains similar language .

The landfill facility is owned by the City of Rochelle and is operated

by Rochelle Waste Disposal, L.L.C . Rochelle Waste Disposal has

operated the existing landfill facility since July, 1995 through an operating

agreement with the City of Rochelle .

There can be little doubt that the operator has had a less than ideal

compliance history. CCOC is correct when it takes the position that there

have been a large number of violations at the site

.

At the public hearing, the operator called Mr . Thomas Hilbert to

testify concerning the operating history of Rochelle Waste Disposal

.

Mr .

Hilbert has been the engineering manager of Winnebago Reclamation

Service for fourteen years and, in that capacity, has been responsible for

the construction, permitting and compliance of the Rochelle Municipal

Landfill. He holds a master's degree in environmental engineering from

the University of Arizona and a bachelor's degree in geophysics from the

University of Western Washington

. He is a licensed landfill operator in the

State of Illinois and holds a certification from the Solid Waste Association

2

---

of North America as a manager of landfill operations

. In his testimony, Mr.

Hilbert candidly conceded that the operator

was

not happy

with its

operating record and had made some changes to make improvements in

the future

. These changes include recently hiring a new site manager to

insure compliance .

In its report to the Rochelle City Council, Patrick Engineering, Inc .

has recommended a substantial number of special conditions which will

encourage compliance by the operator

and assist in minimizing the

concerns of CCOC . Ifind

allof the specialconditions

recommended

byPatrickEngineerinq, Inc . to be reasonablynecessary,supported

by the record and necessitated by the

experience."

c

77

(Hearing Officer's Findings of Fact, Conclusions of Law ai J

(Emphasis added) .

7.

In bold fashion, the Operator seeks to have all thirty-seven (37) Special

Conditions thrown out because their "cumulative effect" causes some purported

technical and financial impracticability when compared to the terms of the Host

Agreement and the 9-26-06 letter between the Applicant and Operator . (Motion for

Reconsideration, paragraph 10

; see also, prayer for relief ("reconsider its April 11, 2007

decision to impose the Special Conditions described above")) . The Operator's not-so

veiled threat to walk away from the Host Agreement should not be countenanced by this

City Council in the face of the dismal operating experience of this Operator over the last

decade, as admitted by Mr . Hilbert and established as fact by the Hearing Officer

. It is

3

---

inconceivable that the Operator claims that these Special Conditions be thrown n lr

because the purported expansion is of "limited scope" where tt

with its relatively tiny current facility is undoubtedly "less than id

8 .

Paragraph 10 of the Motion for Reconsiderat

because it seeks an impermissible renegotiation of the Host

Application process . Alternatively, it should be denied as saber-rattling .

9 .

After establishing a specter of uncertainty regarding the continued viability

of the entire Host Agreement, the Operator then tries to pick off a few separate Special

Conditions

.

However, the Operator's arguments are without merit and attempt to

confuse and otherwise camouflage the true "sprit, intent, force and effect" of the Motion

for Reconsideration : to contractually intimidate the City Council to relax the Special

Conditions .

10. The Operator argues that Special Condition 8 is inconsistent with Special

Condition 35,

However, the Operator is incorrect . Rather, the two conditions are

entirely consistent with each other . Special Condition 8 requires, in part, the Operator

to control litter along Route 38 east through Creston to Woodlawn Road . Special

Condition 35 prohibits

transfer trailers going to and from the facility from traversing

east along Route 38 through Creston to Woodlawn Road

. However, neither packer

trucks nor roll-off container haulers

are prohibited from traversing that route . Special

Condition 8 should not be limited, but rather, it should be expanded

to include Creston

Road from Mulford Road to Locust Road to cover packer trucks because the City

Council did not adopt CCOC proposed condition

1(i), which stated that the Operator

would mandate that all traffic leaving the landfill would travel north on Mulford Road, not

4

---

south out of the landfill . (Concerned Citizens of Ogle County Evidentiary Summary and

Proposed Findings of Fact and Conclusions of Law, March 9, 2007) .

11 . In addition, the Operator alleges that Special Condition 13 is "both

financially and technically impracticable, not reasonable and necessary to accomplish

the purposes of Section 39 .2 of the Act, and are (sic) inconsistent with regulations

promulgated by the Pollution Control Board

." Special Condition 13 requires the removal

of waste from Unit 1 to be completed within six (6) years from the date an IEPA permit

is issued for the expansion,

"except as otherwise provided

by the City Council for good

cause shown." The Operator's contention with this Special Condition is without merit for

several reasons . First, the Operator notes that with respect to Unit 1, 276 months of

accumulated waste must be exhumed over 30 months . However, "276 months" is a red

herring . The daily volume, demand, and rate of disposal are irrelevant . In fact, 100% of

the waste in Unit 1 is there right now ; it will not be brought to the site over 276 months .

Furthermore, there is no evidence that Special Condition 13 is "technically

impracticable ." This statement is pure hyperbole . Although Devin Moose testified that

he thought it would take about ten years to exhume Unit 1 (Tr . 1/24/07, p . 322-323)1 , he

also stated, "we don't know how much is in there (Unit 1), we don't have exact records

."

(Tr. 1/24/07, 176) . Thus there could be less waste than expected

. In addition, Mr .

Moose testified, "We want to get that waste out of that unlined area as soon as

possible." (Tr . 1/24/07, p . 177) (Emphasis added)

. Thus, Special Condition 13 is

entirely consistent with the Application and the testimony of Devin Moose

.

'

Citations to the various transcripts of hearings will generally be in this format . "Tr

. [date of hearing],

[page number] ."

5

---

In

addition, both the Hearing Officer and Patrick Engineering, Inc ., ("Patrick

Engineering") technical consultant to the City Council, recommended that the

exhumation of Unit 1 be completed within 6 years

. Patrick Engineering has the

technical expertise, and the Hearing Officer has years of experience in landfill siting

procedures, to determine the length of time necessary to exhume waste from a

designated area

. There is no engineering claim that this cannot be done

. Thus, the fact

that the Operator believes six years is impracticable is not a sufficient basis to modify

Special Condition 13 . Moreover, the Operator fails to acknowledge that if good cause is

shown, the City Council may extend the amount of time allowed for the exhumation .

Thus, if once the exhumation process gets underway, the Operator determines that it

will be absolutely, technically impossible to exhume the waste within six years, the

Operator may request additional time from the City Council . Therefore, the Operator's

argument that Special Condition 13 is technically and financially impracticable is without

merit.

12,

The Operator argues that Special Condition 22 is "unnecessarily

duplicative and redundant" in light of Special Condition 23

. However, Special Condition

22 concerns operational screening berms around each

cell, while Special Condition 23

requires permanent perimeter berm around the

entirefootprint.

Therefore, Special

Conditions 22 and 22 are necessary, separate, and distinct, albeit complementary of

each other .

13 .

The Operator contends that Special Condition 23 is technicially and

financially impracticable

. However, the Operator provides no basis for such contention

.

Rather, the Operator simply states, "based upon given and existing physical site

6

---

conditions, as

well as certain operating

conditions . " Special Condition

23 is

impracticable .

This general conclusion

is not a sufficient basis for which the City

Council should reconsider its initial decision .

In fact, the Application states that the

landscape plan is "based on the objectives of providing an attractive visual buffer along

the Facility perimeter and at the entrance

." (City Application - Volume 1, Section 3 .1, p .

8)

. The landscape plan calls for a ten to twelve foot screening berm to be planted

adjacent to Creston Road with a variety of plant material

. (City Application -

Volume 1,

Section 3

.1, p. 8)

. Such plantings will be installed to provide "immediate impact and

mature over time

." (City Application -

Volume 1, Section 3

.1, p . 8). Mr. Lannert's

testimony at the hearing was consistent with such landscape plan

. (Tr . 1/22/07, p . 98,

103 ("I think the things we are proposing in terms of the buffering treatment, the end

uses and the plantings at the foundation, those are things that tend to make it even

more compatible than in its natural state ."))

. Furthermore, the landfill is going to

increase in height by 70 feet

. (Tr . 1/22/07, p

. 109) . Thus, a fourteen (14) foot perimeter

berm is anything but impracticable

.

Contrary to the Operator's belief, the existing physical site conditions necessarily

require

the imposition of such a perimeter berm

. Given the extensive testimony and

information in the Application about the need for buffers, the Operator cannot possibly

be complaining that the site does not need a perimeter berm, rather, the Operator is

complaining about the size and time required to build to such berm

. However, there is

no evidence that a fourteen (14) foot perimeter berm is either technically or financially

impracticable .

7

---

8

14. In addition, the Operator argues that Special Conditions 26 and 28, which

allow the City Manager and its legal and technical consultants to review and comment

on any applications the Operator submits to the IEPA, at the Operator's expense, is

"financially burdensome, impracticable, redundant and unnecessarily duplicative

."

However, given the "less than ideal" operating record of the Operator, such condition is

not only practicable, but is also certainly necessary to ensure the Operator performs in

a satisfactory manner . As aforementioned, the Hearing Officer found all of the

conditions recommended by Patrick Engineering to be "reasonably necessary,

supported by the record and necessitated by the previous operating history ."

(Hearing Officer's Findings of Fact, Conclusions of Law and Recommendations)

(Emphasis added) .

Furthermore, the Operator's statement that the requirements of Special

Conditions 26 and 28 "run counter to the terms of the Host Agreement" is a not-so

veiled threat to walk, which essentially amounts to blackmail . (See, 9-26-06 letter

between the Applicant and the Operator) . The City Council should note that such threat

is entirely inappropriate .

15. Lastly, while the Operator admits that the road improvements noted in

Special Conditions 33 and 34 are necessary, it challenges the fact that the costs for

such road improvements should be imposed upon the Operator

. However, such

improvements would not have to be made but for the expansion of the landfill

. The road

improvements are required because of the volume of transfer trailers traversing such

roadway

. If use of the roadway was limited to packer trucks, the road improvements

would probably not be necessary

. Thus, because the road improvements are required

---

David L. Wentworth II

Emily R

. Vivian

Hasselberg, Williams, Grebe,

Snodgrass & Birdsall

124 SW Adams, Suite 360

Peoria, IL 61602

Telephone: (309) 637-1400

Facsimile : (309) 637-1500

W:\DLW\Land Use-Zoning\Ogle\Pleadings\

Response

. Motion to Reconsider (Operator) .doc

9

By:

because of the presence of transfer trailers, which are present solely at the request of

the Operator, it is only fair that the Operator bear the cost of such improvements

.

In addition, the Operator claims that the expansion is limited in scope

. However,

this is a huge expansion : big enough to serve the entire Ogle County until 2104 . (See,

Concerned Citizens of Ogle County, Evidentiary Summary and Proposed Findings of

Fact and Conclusions of Law, March 9, 2006, p . 11) . Again, the Operator threatens to

walk by alleging that Special Conditions 33 and 34 are inconsistent with the terms of the

Host Agreement

. Such behavior is entirely inappropriate .

WHEREFORE, CONCERNED CITIZENS OF OGLE COUNTY, respectfully

requests that the City Council not reconsider its initial decision of April 11, 2007, or in

the alternative, strengthen the Special Conditions approved in such decision

.

Respectfully submitted,

CONCERNED CITIZENS OF

OGLE COUNTY,

ne of It

---

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the RESPONSE

TO MOTION FOR RECONSIDERATION was served upon the

following parties via

electronic mail and also at the following addresses, by depositing a copy of said

document in the U .S

. Mail at Peoria, Illinois, postage pre-paid, this 27th day

of April,

The undersigned hereby certifies that a true and correct copy of the RESPONSE TO

MOTION FOR RECONSIDERATION was served by the Defendant to the following

party via electronic mail and also by hand delivery at the following address this 27th day

of April, 2007 .

City Clerk

Bruce McKinney

420 N . 6th Street

Rochelle, IL 61068

By

10

i

IWO

dit ."i

./

.i i

vian

2007.

John J . McCarthy

City Attorney

City Staff's Attorney

45 East Side Square Alan Cooper

Glenn C. Sechen

Suite 301

233 East Route 38, Suite 202 Schain, Burney, Ross & Citron, Ltd

.

Canton, IL 61520

P .O. Box 194

Suite 1910

Rochelle, IL 61068

222 North LaSalle Street

Chicago, IL 60601-1102

City Council's Attorney Village of Creston Attorney

Operator Attorney

Donald J . Moran

David D . Tess

Charles F . Helsten

Pedersen & Houpt

Tess & Redington

Hinshaw & Culbertson

161 North Clark Street 1090 North 7th Street

100 Park Avenue

Suite 3100

Rochelle, IL 61068

Rockford, IL 61101

Chicago, IL 60601