BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY, and
)
)
SIERRA CLUB,
)
)
Co-Petitioners,
)
)
v.
) PCB 07-84
) (Third-Party Pollution Control
) Facility Siting Appeal)
CITY OF MADISON, ILLINOIS, and
)
)
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
PETITIONERS’ BRIEF
Introduction
This matter arises out of an application to site a landfill in the City of Madison,
Illinois, filed by Waste Management of Illinois, Inc. (“Waste Management”). On
February 6, 2007, the City of Madison (“the City”) approved the application.
American Bottom Conservancy and Sierra Club (“petitioners”) have petitioned the
Illinois Pollution Control Board for review of the City’s decision on the ground that
the application fails to satisfy the siting criteria set forth in 415 ILCS 5/39.2, and on
the ground that the proceedings conducted by the City of Madison were not
fundamentally fair.
1
Statement of Facts
Proceedings before the City of Madison
On September 22, 2006, Waste Management filed with the City its application
to site the North Milam landfill. C 0014. The application, together with other
1
Pages to the record made before the City are cited in this brief, for example, as “C
0001.” Pages to the transcript of the hearing before this Board are cited in this brief,
for example, as “Tr. 1.”
Electronic Filing, Received, Clerk's Office, September 17, 2007
2
documents filed with the City, describe the natural and cultural resources that would
be impacted by the proposed landfill. These include Horseshoe Lake State Park,
Horseshoe Lake, American Indian Mounds, Cahokia Mounds World Heritage Site,
and wetlands.
Horseshoe Lake State Park
Horseshoe Lake State Park is a 2,968 acre Illinois State Park located within a
short distance to the North and to the East of the proposed landfill. C 0456 (Ex. ABC
8), 0458, 0459, 0460. If constructed the landfill would be bounded by railroad tracks
on its Northern Boundary. C 0458. A Fish and Wildlife area at the southern end of
Horseshoe Lake State Park abuts these railroad tracks. C 0462.
Within Horseshoe Lake State Park there are group picnic shelters, playgrounds,
boat ramps, a fishing pier, campsites, hiking trails, and public water fowl hunting
blinds. C 0460. A four-mile hiking trail, known as the “Walkers Island Bird Walk,”
is located on Horseshoe Lake Island. C 1539.
For thousands of years the area that is now Horseshoe Lake State Park had been
inhabited by various Native American Indian groups. C 1538. The most impressive
period of settlement was between 800-1600 A.D. when Cahokia Mounds was built.
Id
.
An earthen platform mound still exists inside the park boundaries today. Id.
Horseshoe Lake
Much of Horseshoe Lake State Park consists of Horseshoe Lake. C 0456.
Horseshoe Lake is situated on a low flood plain which follows the Mississippi
River down to the Kentucky border. C 1538.
Horseshoe Lake is a natural Oxbow
Lake, formed by a channel cut by the Mississippi River during heavy spring floods. C
1538.
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3
Horseshoe Lake is used for fishing and hunting. C 1538. For fishing, the Lake
contains channel catfish, bass, crappie, and bluegill. Id. Boat fishing is permitted
except during the water fowl season. Id. For hunting, numerous public blinds are
located along the Lake. Id.
American Indian Mounds
During its investigation, Waste Management encountered Native American
sites (sites 1316, 1375, and 1385) on the proposed landfill site. These pre-Columbian
sites are associated with Cahokia Mounds.
C 1593, 2069.
At site 1316, in December, 2005, archeologists uncovered what were later
determined to be ancient human remains. C 2087, 2095. Pottery shards were found
around the skull. C 2084. Twenty-six archaeological features and four architectural
features were exposed, mapped, photographed and covered. C 1592.
At site 1375, a Native American Mound was surrounded by a fenced 75 foot
buffer. C 1592. Seventy-four archaeological features and three architectural features
were found and excavated. C 1593.
Concerning the Mounds Ruben Aguirre, a member of the Tongva Nation,
addressed the City of Madison during the public hearing:
if you do this landfill, you are – you are digging into our ancestors, you
are desecrating our ancestors, especially these burials. It’s like me going
to a cemetery and dig up your relatives, your families, your relatives and
take them out to do a landfill so the City can make money out of this….
This affect [sic] us indigenous people, our native people all over the
world
C 1459
.
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4
Cahokia Mounds World Heritage Site
The Cahokia Mounds World Heritage Site and National Historic Landmark
boundaries are located within 2,140 feet of the proposed landfill. C 2069, 2074.
Cahokia Mounds is recognized as a State Historic Site; a National Historic Landmark;
and a United Nations Educational, Scientific and Cultural Organization (UNESCO)
World Heritage Site. C 1544. It is the largest pre-Columbian settlement north of
Mexico and was occupied primarily between 800-1400 A.D. C 1540. During this
period it covered nearly 1,600 hectares and included 120 mounds. Id. The site’s
Monks Mound is the largest prehistoric earthwork in the Americas. Id
.
The
Mississippians built at least 100 more additional mounds at other nearby sites, many
of which have now been altered or destroyed. C 1545
Wetlands
The proposed landfill would impact 8.5 acres of farmed wetlands and 9.9 acres
of forested wetlands. C 1929, 1973. The wetland referred to as Area 5 is a 13.9 acre
complex of moderate to high quality, forested and scrub-shrub wetland. C 1933,
1939. Vegetative and wildlife habitat are moderate to high in this wetland. C 1939.
The Public Hearing
On December 21 and 22, 2006, the City held a public hearing on Waste
Management’s application. C 0973-1313, 1489-1535.
During the hearing, petitioners attempted to examine Waste Management’s
expert on compatibility about the Native American Mounds discovered at the site:
Q. Are you aware that there are at least two mounds and a burial site
and countless artifacts at the site?
Mr. Moran: Objection, beyond the scope of his direct. It’s also not
relevant.
Electronic Filing, Received, Clerk's Office, September 17, 2007
5
Hearing Officer: Sustained.
Q. If you knew that there were mounds on the site would you consider
that compatible?
Mr. Moran: Objection, same basis.
Hearing Officer: Sustained.
C 1045-1046
.
During the hearing, petitioners attempted to examine Waste Management about
the wetlands on the site:
Q. Do you find it incompatible to destroy wetlands to build a landfill?
Mr. Moran: Objection, same reason.
Hearing Officer: Sustained.
C 1015. See also C 1016
.
Concerning compatibility generally, Waste Management’s consultant testified
that he was engaged to look at the end use or conclusion of the facility. C 1025-1026,
1050-1051. It was not within the scope of his engagement to evaluate the landfill’s
compatibility with its surroundings from the time construction begins. Id. He also
admitted that smell would be an appropriate criterion to assess, but it was not
appropriate for him to do so because he was engaged to look at the end use of the
facility. C 1025.
Argument
Siting approval is to be granted only if a proposed facility meets the criteria set
out in section 39.2 of the Environmental Protection Act. 415 ILCS 5/39.2. A
negative determination on any one of the criteria is sufficient to defeat an application
for site approval.
Town & Country Utilities, Inc. v. Illinois Pollution Control Board
,
225 Ill.2d 103, 108, 866 N.E.2d 227, 231 (Ill. 2007). One of the criteria is whether
Electronic Filing, Received, Clerk's Office, September 17, 2007
6
the proposed facility is located so as to minimize incompatibility with the character of
the surrounding area. 415 ILCS 5/39.2 (a)(iii).
I. The proposed landfill fails to meet the siting criteria because it is not located
so as to minimize incompatibility with the character of the surrounding area in
that A. There is no substantive buffer between the proposed landfill and
Horseshoe Lake State Park; B. American Indian Mounds are located on the
proposed landfill site and ancient human remains have been found at the site; C.
The site is within 2,140 feet of the Cahokia Mounds World Heritage Site and
National Historic Landmark Boundary; D. The proposed landfill will take
eighteen acres of wetlands; and E. No effort was
made to determine
whether the proposed landfill would be compatible with the surrounding area
during the landfill’s operation
A. There is no substantive buffer between the proposed landfill
and Horseshoe Lake State Park
The proposed facility is incompatible with the surrounding area because there
is no substantive buffer between the proposed landfill and Horseshoe Lake State Park.
If constructed the landfill would be bounded by railroad tracks on its Northern
Boundary. C 0458. A Fish and Wildlife area at the southern end of Horseshoe Lake
State Park abuts these railroad tracks. C 0462.
Waste Management’s consultant asserts that the tracks serve as “strong
physical demarcations between the Open Space/Recreation/ Conservation uses and
North Milam.” C 0471. According to the consultant the railroad is the buffer for the
Fish and Wildlife Area on the southern end of the Park. C 0462. The consultant
concludes that due to physical and visual buffers, North Milam is not incompatible
with the use of Horseshoe Lake State Park. C 0464, 0489.
There is no noticeable buffer unless a train happens to be passing by. Compare
view 2 on page C 0479 (Ex. ABC 8, Figure 9 (with train)) with views 3 and 4 on page
C 0474 (Ex. ABC 8, Figure 5 (without train)). When there is no train, park users
Electronic Filing, Received, Clerk's Office, September 17, 2007
7
looking to the South would have an unobstructed view of the proposed landfill.
2
With
or without a train, the railroad tracks provide no meaningful visual buffer for persons
using Horseshoe Lake State Park.
3
Nor do the train tracks prevent odors emanating
from the landfill from migrating to the public use areas of Horseshoe Lake,
immediately upwind of the proposed landfill.
B. American Indian Mounds are located on the proposed landfill site and
ancient human remains have been found at the site
During its investigation, Waste Management encountered Native American
sites (sites 1316, 1375, and 1385) on the proposed landfill site. Numerous
archeological
and architectural features have been uncovered at these sites. C 1592,
1593. Ancient human remains, together with pottery shards, were discovered at one
of the sites. C 2087, 2095
.
These pre-Columbian sites are associated with Cahokia
Mounds.
C 1593, 2069.
The contemporary American Indian community opposes the siting of the
landfill. (C 1589, 2069):
you are digging into our ancestors, you are desecrating our ancestors,
especially these burials. . . . This affect [sic] us indigenous people, our
native people all over the world . . .
Testimony of member of the Tongva Nation, C 1459
.
2
If there is a passing train, the park users will have to glance upward to view
the landfill.
3
Several years ago, the Cahokia Canal, together with the vegetation along the
canal, provided a somewhat substantive buffer between the landfill and the
recreational uses to the North. North Milam has crossed that buffer. See Ex. ABC 9
(submitted under an offer of proof).
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8
C. The site is within 2,140 feet of the Cahokia Mounds World Heritage
Site and National Historic Landmark Boundary
Cahokia Mounds is recognized as a State Historic Site; a National Historic
Landmark; and a United Nations Educational, Scientific and Cultural Organization
(UNESCO) World Heritage Site. C 1544. It comes as no surprise, therefore, that the
Cahokia Archaeological Society opposes the proposed landfill because of the
landfill’s potential impact on Cahokia Mounds. C 2074
.
Further, the Powell Archaeological Research Center opposes the siting of the
landfill because of the importance of Cahokia Mounds as an American Indian Cultural
Site, a past ritual center for ancient Americans, a sacred site to contemporary Indians,
and a valuable source of tourism for the state of Illinois. C 2069. The Center believes
that objectionable smells, sights and sounds associated with the proposed landfill
would detract from the overall experience of visitors to the Cahokia Mounds Heritage
Site. C 2069.
Nor is it a surprise that
the contemporary American Indian community opposes
the siting of the landfill. C 1459, 1589, 2069.
D. The proposed landfill will take eighteen acres of wetlands
The proposed landfill will take 8.5 acres of farmed wetlands and 9.9 acres of
forested wetlands. C 1929, 1973. Some of these wetlands are moderate to high
quality, forested and scrub-shrub wetland. C 1933, 1939. The quality of the
vegetative and wildlife habitat is moderate to high in these wetlands. C 1939.
E. No effort was made to determine whether the proposed landfill would be
compatible with the surrounding area during the landfill’s operation.
The North Milam Landfill is proposed to operate (initially) for seventeen
Electronic Filing, Received, Clerk's Office, September 17, 2007
9
years.
4
Waste Management made no effort to determine whether the proposed landfill
would be compatible with its surroundings during its operation. C 1025-1026, 1051.
Instead, its consultant attempted to evaluate only whether the landfill, after it ceased
operating, would be compatible with the surrounding uses, ignoring the seventeen
years (or longer) when the landfill would be in operation. Id. For this reason, Waste
Management did not assess smell. C 1025. Nor did Waste Management evaluate the
noise impacts that would come from the landfill. C 1039. Nor did Waste
Management evaluate the visual impacts during the landfill’s operation. C 1051.
Summary
For the reasons set forth above, the proposed landfill is not located so as to
minimize incompatibility with the character of the surrounding area.
II. The proposed landfill fails to meet the siting criteria because it is not
necessary to accommodate the waste need of the area it is intended to serve
A second siting criterion Waste Management must satisfy is whether the
proposed facility is necessary to accommodate the waste needs of the area it is
intended to serve. 415 ILCS 5/39.2(a)(i). To satisfy this factor, an applicant must
demonstrate an urgent need for the new facility as well as the reasonable convenience
of establishing a new landfill.
File v. D&L Landfill, Inc.,
579 N.E.2d 1228, 1235, 219
Ill. App. 3d 897, 906 (Ill. App. 5
th
Dist. 1991).
According to a 2005 landfill capacity report, the proposed landfill falls within
Region Six. C 1445. Region Six landfill capacity increased by almost 33.9 million
gate cubic yards (29 percent) from the previous year. C 1445. Further, landfill
4
The existing Milam landfill, on the southern side of Cahokia Canal, has expanded at
different times since first being permitted, the latest expansion being the subject of a
previous siting appeal by petitioners. PCB 01-159.
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10
operators in the Region reported 17 years of capacity remaining for waste disposal. C
1445. Because Metro East landfill capacity increased 29% from the previous year,
and seventeen years of landfill capacity remains, there is no urgent need for North
Milam.
Cf. Waste Management of Illinois, Inc. v. Pollution Control Board,
530
N.E.2d 683, 691, 175 Ill. App. 3d 1023, 1033 (Ill. App. 2
nd
Dist 1988) (no need for
proposed landfill where nine years of capacity remains).
Summary
The application fails to meet two of the siting criteria. The application should
be denied for this reason.
III. The City’s siting proceedings were not conducted in a fundamentally fair
manner because A. Waste Management failed to present evidence during the
public hearing of the Native American Mounds discovered at the site and
petitioners were precluded from examining Waste Management’s witnesses
about these Native American Mounds; B. Waste Management failed to present
evidence during the public hearing about wetlands at the site and petitioners
were precluded from examining Waste Management’s witnesses about these
wetlands; and C. There is no written decision of the City specifying the reasons
for its decision
A non applicant who participates in a local pollution control facility siting
hearing has a statutory right to fundamental fairness in the proceedings before the
local siting authority. 415 ILCS 5/40.1 (a);
Land and Lakes Company v. Illinois
Pollution Control Board
, 319 Ill. App.3d 41, 47, 743 N.E.2d 188, 193 (Ill. App. 3rd
Dist. 2000). The right to fundamental fairness incorporates minimal standards of
procedural due process, including the opportunity to be heard and the right to cross-
examine adverse witnesses.
Land and Lakes Company v. Illinois Pollution Control
Board
, 319 Ill. App.3d at 48, 743 N.E.2d at 193;
Daly v. Pollution Control Board
, 264
Ill. App. 3d 968, 970, 637 N.E.2d 1153, 1155 (Ill. App. 1 Dist. 1994)
.
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11
A. Waste Management failed to present evidence during the public hearing of
the Native American Mounds and ancient remains discovered at the site and
petitioners were precluded from examining Waste Management’s witnesses
about these Native American Mounds
The proceedings before the City of Madison were not fundamentally fair
because Waste Management presented no evidence of the on-site Native American
Mounds during the public hearing and, at the hearing, petitioners were precluded from
inquiring into these Native American Mounds.
At the public hearing, petitioners attempted to examine Waste Management
about the Native American Mounds discovered at the site:
Q. Are you aware that there are at least two mounds and a burial site
and countless artifacts at the site?
Mr. Moran: Objection, beyond the scope of his direct. It’s also not
relevant.
Hearing Officer: Sustained.
Q. If you knew that there were mounds on the site would you consider
that compatible?
Mr. Moran: Objection, same basis
.
Hearing Officer: Sustained.
C 1045-1046.
5
Rather than submit any testimony, data, or information about these Native
American Mounds at the public hearing, or allow its compatibility witness to be
questioned about these Mounds during the hearing, Waste Management submitted its
5
In advance of the public hearing, an archaeologist had prepared Ms. Andria to
examine Waste Management’s witnesses about the Native American Mounds. Tr. 22-
30; Ex. ABC 11, submitted under an offer of proof.
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12
data toward the end of the public comment period. C 1591-1928.
6
Because Waste
Management failed to present any evidence of these mounds during the public
hearing, and petitioners were precluded from questioning Waste Management’s
witnesses about these Mounds during the public hearing, the proceedings before the
City were not fundamentally fair.
Cf. Land and Lakes Company v. Illinois Pollution
Control Board
, 319 Ill.App.3d 41, 51 743 N.E.2d 188, 196 (Ill. App. 3d Dist. 2000)
(material submitted on last day of public comment period was harmless where Waste
Management’s witness relied on the material in testimony before County Board).
B. Waste Management failed to present evidence during the public hearing
about wetlands at the site and petitioners were precluded from
examining Waste Management’s witnesses about these wetlands
The proceedings before the City of Madison were not fundamentally fair
because Waste Management presented no evidence during the hearing of the wetlands
on the site and petitioners were precluded from inquiring about these wetlands.
During the hearing, petitioners attempted to examine Waste Management about
the wetlands at the site:
Q. Do you find it incompatible to destroy wetlands to build a landfill?
Mr. Moran: Objection, same reason.
Hearing Officer: Sustained.
C 1015. See also C 1016.
Rather than allow its witness to be examined during the hearing, Waste
Management submitted its data about the wetlands toward the end of the public
comment period. C 1929-2068. As with the Native American Mounds, because
Waste Management failed to present any evidence of these wetlands during the public
6
According to the City’s Mayor, the City of Madison relied on the data submitted by
Waste Management toward the end of the comment period. C 2246-2247.
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13
hearing, and petitioners were precluded from questioning Waste Management’s
witnesses about the wetlands during the public hearing, the proceedings before the
City were not fundamentally fair.
Land and Lakes
, p. 10,
supra
.
C. There is no written decision of the City specifying the reasons for the decision
The decision of the local siting authority must be in writing and must specify
the reasons for the decision. 415 ILCS 5/39.2 (e);
Land and Lakes Company v.
Illinois Pollution Control Board
, 319 Ill. App.3d 41, 45, 743 N.E.2d 188, 191 (Ill.
App. 3d Dist. 2000). See also 415 ILCS 5/40.1 (a) (Board shall include in its
consideration the written decision and reasons for the decision of the local body);
Accord Town & Country Utilities, Inc. v. Illinois Pollution Control Board
, 225 Ill.2d
103, 109, 866 N.E.2d 227, 230 (Ill. 2007).
7
Cf. Clutts v. Beasley
, 185 Ill.App.3d 543,
544, 541 N.E.2d 844, 845 (Ill. App. 5th Dist. 1989) (County Board’s written decision
that recited criteria for approving landfills was adequate).
There is no written decision of the City of Madison here that specifies the
reasons for the City’s decision to approve the landfill. The only writing is the City of
Madison City Council Meeting Minutes from February 6, 2007:
It was moved by Alderman Grzywacz, seconded by Alderperson
Armour, to approve the Waste Management Siting Application dated
September 22, 2006. Roll call vote as follows: Yeas: Armour, Bridick,
Grzywacz, Riskovsky, Hampsey, Vrabec, Gardner, and Treadway.
Nays: None. Motion carried.
Even if the City’s minutes were sufficient to be considered the “writing”
required by the siting statute, the minutes fail to give any reason for the City’s
7
Similarly, the City of Madison’s ordinance provides that the decision “will be in
writing and specify the reasons therefor . . .” C 0008A.
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14
decision. For this reason also, the proceedings conducted by the City of Madison
were not fundamentally fair.
Conclusion
The application fails to meet two of the siting criteria. The proceedings
conducted by the City of Madison were not fundamentally fair. Waste Management’s
application for siting approval should be denied.
/s/ Bruce A. Morrison
Bruce A. Morrison (Il. Reg. No. 6279301)
Kathleen G. Henry
Great Rivers Environmental Law Center
705 Olive Street, Suite 614
St. Louis, MO 63101-2208
Phone: (314) 231-4181
Fax: (314) 231-4184
Attorneys for petitioners
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15
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 17th day of September, 2007, a
complete copy of this instrument was served upon counsel for defendants by e-mail to
the addresses below.
Donald J. Moran
Penni S. Livingston
Pedersen & Houpt
Livingston Law Firm
161 North Clark Street
5701 Perrin Road
Suite 3100
Fairview Heights, IL 62208
Chicago, IL 60601-3224
penni@livingstonlaw.biz
dmoran@pedersenhoupt.com
John T. Papa
Callis, Papa, Hale, Szewczyk & Danzinger, PC
1326 Niedringhaus Avenue
Granite City, IL 62040
jtp@callislaw.com
Carol Webb
Illinois Pollution Control Board
webbc@ipcb.state.il.us
/s/ Kathleen G. Henry
Electronic Filing, Received, Clerk's Office, September 17, 2007
Electronic Filing, Received, Clerk's Office, September 17, 2007
Electronic Filing, Received, Clerk's Office, September 17, 2007
