STATE OF ILLINOIS
Pollution Control Board
PCB 07-84
(Pollution Control Facility
Siting Appeal)
BEFORE THE ILLINOIS POLLUTION CONTROL
BOA~ECEIVED
CLERK'S
OFFICE
AMERICAN BOTTOM CONSERVANCY,
)
OCT 0
~
2007
and SIERRA CLUB,
)
)
Co-Petitioners,
)
)
v.
)
)
CITY OF MADISON, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
NOTICE OF FILING
TO: Bruce A. Morrison
Great Rivers Environmental Law Center
705 Olive Street, Suite 614
St. Louis,
MO 63101-2208
Carol Webb
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, l1linois 62794-9274
John
T.
Papa
Callis, Papa, Hale, Szewczyk
&
Danzinger
1326 Niedringhaus Avenue
Granite City, IL 62040
PLEASE TAKE NOTICE that on October
9,2007, I filed with the l1linois Pollution
Control Board, an original and nine copies
of the attached
RESPONSE BRIEF OF WASTE
MANAGEMENT
OF ILLINOIS, INC. IN SUPPORT OF THE CITY OF MADISON'S
GRANT OF SITE LOCATION APPROVAL FOR THE NORTH MILAM FACILITY.
WA
MANAGEMENT OF ILLINOIS, INC.
By:
_-"-::-_---{-._--------
Donald J. Moran
PEDERSEN
&
HOUPT
161 North Clark Street, Suite 3100
Chicago, l1linois 60601
(312) 641-6888
Attorney Registration No. 1953923
452779.1
PCB 07-84
(Third-Party Pollution Control
Facility Siting Appeal)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY, and
)
SIERRA CLUB,
)
)
Petitioners,
)
)
v.
)
)
CITY OF MADISON, ILLINOIS, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
RECEIVED
CLERK'S OFFICE
OCT 09 2007
STATE OF ILLINOIS
Pollution Control Board
RESPONSE BRIEF OF WASTE MANAGEMENT OF ILLINOIS, INC.
IN
SUPPORT OF THE CITY OF MADISON'S GRANT OF SITE LOCATION
APPROVAL FOR THE NORTH MILAM FACILITY
INTRODUCTION
This third-party appeal arises out of the September 22, 2006 siting application
("Application") filed by Waste Management of Illinois, Inc. ("WMII") with the City of Madison
("City") requesting site location approval for the expansion
of the existing Milam Recycling and
Disposal Facility (referred to herein as "North Milam" or "Facility"), pursuant to Section 39.2 of
the Illinois Environmental Protection Act ("Act"). The City approved the Application on
February 6, 2007, after two days
of public hearing held on December 21 and 22, 2006, during
which eight expert witnesses testified in support of the Application on all nine Section 39.2(a)
criteria. No other expert witnesses testified.
On appeal, Petitioners, American Bottom Conservancy and Sierra Club ("Petitioners"),
contend that the City's findings on need (criterion (i)) and the compatibility of North Milam with
the character
of the surrounding area (criterion (iii)) were against the manifest weight of the
evidence. The record, however, demonstrates that WMII established all
of the statutory criteria
464471
by clear and convincing evidence, and no expert testimony or evidence was offered to controvert
it. Accordingly, the City's decision granting siting approval is supported
by the manifest weight
of the evidence and should be affirmed.
Petitioners also contend that the local siting proceedings were fundamentally unfair
because (a)
WMII did not present evidence relating to American Indian Mounds and wetlands,
and Petitioners were
not permitted to cross-examine WMII's compatibility witness on those
subjects; and (b) the
City did not provide a written decision specifying the reasons for granting
siting approval. Petitioners' fundamental fairness arguments must fail because (a) it is not
fundamentally unfair to limit cross-examination to relevant evidence concerning the statutory
siting criteria; and (b) the City'sunanimous approval and adoption
of the Hearing Officer's
findings
of fact and recommendations at a transcribed City Council meeting is sufficient to
satisfy Section 39.2(e).
Because the record fully supports the City's findings that criteria
(i)
and (iii) of Section
39.2(a) were satisfied, and also shows that thc proceedings were fundamentally fair in all
respects, the City's decision to grant local siting approval
of the Application should be affirmed.
FACTS
1.
Site Location
North Milam is located in the City of Madison, Illinois, and is situated northeast of
the currently operating Milam Recycling and Disposal Facility ("Milam RDF"), north of
Interstate
55170
and the Cahokia Canal, east of Illinois Route 203, and west of Illinois Route
III. Milam RDF currently has a waste disposal area of 176 acres and has been owned and
operated by WMII since 1984. The expansion area is entirely owned by WMII and will be 180
464471
2
acres, of which the waste disposal footprint will encompass approximately 119 acres. (C 0454.)"
2.
Compatibility Evaluation
The Application contains a report prepared by Mr. Scott Schanuel of Woolpert, Inc., on
his study
of the compatibility of North Milam with the character ofthe surrounding area. The
study addressed planning issues that are commonly used to make determinations
ofland use
compatibility. (C 0454.)
Mr. Schanuel analyzed the land uses within a one-mile radius of the Facility, and
determined that the character of the surrounding area is predominantly agricultural and open
space mixed with industrial uses, which together represent over 97%
of the land uses in the study
area. (C 0458-0459.) Mr. Schanuel also considered that North Milam
is within an industrial
zoning district
of Madison, zoned I-I, and that in addition to manufacturing, processing, and
related activities, this zoning designation allows sanitary landfills and landfills as a special use.
(C 0466-0468; C 0469.)
Mr. Schanuel prepared a conceptual End Use Plan that proposes methods for screening
North Milam from off-site views with natural materials, such as native trees, wildflowers and
grass vegetative cover for the landform. (C 0478.) Specifically, Figure
17 of the Application
provides the proposed detail for the fairly continuous and dense buffer of evergreen and shade
trees around the perimeter
of the landform and surrounding sedimentation basins. Native
wildflowers and grasses will also be planted around the perimeter
of North Milam to replicate
thc character of the natural landscape of the surrounding area. The End Use Plan will be
enhanced
at various locations to screen unobstructed off-site views and to minimize any visual
• Citations to the record made before the City are referenced herein as "(C __.).
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3
impact on the landscape. (C 0487; C 0488.)
The End Use Plan states that aspects
of the screening and buffering wiJl begin early in the
operational life of the Facility.
It
specificaJly states that native grasses and wildflowers will be
"planted at the perimeter during the early stages of activity." (C 0487.) Other aspects of
screening and buffering are designed to be implemented and mature during the life of the
Facility. (C 0487.)
Mr. Schanuel compared existing off-site views to the proposed End Use Plan for the
landform, and found the proposed landform
to be compatible with existing uses. (C 1002-1008;
C 0458-0459.) Mr. Schanuel testified that the End Use Plan is consistent with the 2003 City
of
Madison Comprehensive Plan, and the Madison County 2020 Land Use and Resource
Management Plan. (C 01010-1012; C 0458-0459.)
Based on his review and investigation
of the land use, zoning, existing views and the
projected landform, Mr. Schanuel concluded that North Milam is compatible with the character
of the surrounding area. (C 1012; C 0487.)
A.
Horseshoe Lake State Park
Horseshoe Lake State Park was considered in Mr. Schanuel's compatibility evaluation.
(C 1019-1020; C 0454; C 0462.) While his study recognized the importance
of public parks, Mr.
Schanuel found that, from a land use perspective, North Milam was not incompatible with the
use
of the state park because the predominance of built improvements and recreational activities
are located on the north side
of the park, 1.5 to 2 miles from North Milam. (C 1019-1020; C
0462.)
In addition to the distance, Horseshoe Lake and the state park are significantly buffered
from North Milam by the Alton
&
Southern Railroad tracks, open fields, and the lake itself. (C
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4
1019; C 0462.) Furthermore, an approximately thirty-acre wetland mitigation area will be
located to the north
of North Milam, which will provide an additional buffer physically and
visually, particularly from the northerly area
of Horseshoe Lake State Park. (C 1019; C 0462; C
0735-0744.)
B.
American Indian Mounds
Archaeological and cultural resource reviews are not part
of the local siting process under
Section 39.2. Rather, such reviews are part
of a separate regulatory framework established by
federal law under 36 C.F.R. 60.4. Nevertheless, the Application contained an Archaeological
Study Summary Report for North Milam prepared by Bums
&
McDonnell Engineering
Company. (C 0718-0720.) The report discussed the findings
of the three-phase survey study
(identification, testing, and mitigation)
of archaeological sites conducted by Bums
&
McDonnell
at various times between September 2002 and June 2006. The report ultimately concluded that
all archaeological sites that were identified during the surveys were fully investigated or avoided.
(C 0720.)
On January 16,2007, as part
of public comment, Mr. Orval E. "Dan" Shinn, Bums
&
McDonnell's Cultural Resource Department Manager, submitted a letter with attachments to
clarify the report. (C 1591-1928.) The January 16, 2007 letter clarified that no American Indian
Mounds have been located within North Milam and there are
no known burial sites within the
site. (C 1591-1593.) Although three archaeological sites were eligible for the National Register
of Historic Places ("NRHP"), namely, II MS 1375, II MS 1385, and II MS 1316, the letter
further clarified that:
(i) site 1316 is not within North Milam's footprint, it will be avoided for
any future activity and there were no burial features at the site; (ii) site 1385 is not on WMII-
464471
5
owned property and is 1,000 feet from North Milam'sboundary; and (iii) site 1375 also is outside
North Milam, is protected by a fenced 75-foot buffer fence, and the ridge associated with this site
has gone through a complete Phase 3 mitigation. (C 1592-1593.) Mr. Shinn's letter stated that
WMII has met or exceeded the standards and guidelines
ofboth the Secretary of the Interior and
the State
of Illinois for cultural resource investigation by avoiding or mitigating all NRHP-
eligible historic properties within the proposed disposal area.
(C 1593.)
C.
Cahokia Mounds State Historic Site
WMII agrees that the Cahokia Mounds World Heritage Site and National Historic
Landmark outer boundaries are located 2,140 feet away from North Milam. Cahokia Mounds
State Park's boundary is even farther away from North Milam. This distance puts North Milam
clearly outside
of the protective boundary.
Mr. Schanuel's study addressed land use compatibility in connection with the Cahokia
Mounds, which is approximately two miles east
of North Milam. (C 1021, C 0462.) The study
found that Cahokia Mounds "is physically and visually separated [from North Milam] by a
number
of intervening uses including [Interstate Highway] 1-55/70, Illinois [Route] III,
considerable residential and commercial development in the Village of Fairmont City, the
Cahokia Canal and associated vegetation, and natural areas."
(C 0464; C 0464.)
The study compared an existing off-site view from Cahokia Mounds to the proposed
North Milam landform. (C 0472-0473; C 0477; C 0475; C 0484.) The comparison view
of the
proposed landform from Cahokia Mounds was created using a 3-D digital elevation computer
model.
(C 0477.) View 7 in the study is an existing broad view looking westward from the top
of Monks Mound located within Cahokia Mounds. From this perspective, the St. Louis skyline
464471
6
is visible to the southwest, the existing Milam RDF is visible to the west, and North Milam
would
be to the northwest. View 7 is predominantly of rolling hills, natural vegetation, farm
fields, and industrial/commercial activities. (C 0473; C 0475; C 0484.) As shown from View 7
on Figure 14, the completed North Milam landform is barely visible from the top
of Cahokia
Mounds. (C 0484.) The views show that North Milam is compatible with both the immediately
surrounding land use and with Cahokia Mounds, located more than two miles away. (C 0489, C
0475, C 0484.)
The Illinois Historic Preservation Agency ("IHPA") concurs that "the proposed North
Milam landfill expansion site does not pose an adverse visual impact
to Cahokia Mounds
National Historic Landmark." (WMII IPCB Ex. 1.) The IHPA, therefore, has stated that it has
no objection
to North Milam. (WMII IPCB Ex. 1.)
D.
Wetlands
The identification and mitigation
of wetlands is not part of the statutory criteria for local
siting approval. Rather, wetlands are subject
to a separate review process under Section 404 of
the Clean Water Act. Nonetheless, the Application contains WMII's wetland permit application
to the United States Army Corps
of Engineers under Section 404 of the Clean Water Act. (C
0735-0774.) WMII's Section 404 permit application requests the allowance
of approximately
18.4 acres
of farmed and forested wetland to be impacted and the creation of approximately
36.65 acres of wetland to mitigate these proposed impacts, resulting in a 2: I mitigation ratio. (C
0736, C 0740-0742.) The mitigated wetlands will be created to the north of North Milam,
thereby enhancing the natural buffer between the Facility and the Horseshoe Lake State Park
as
well as providing key habitat for local and transitory wildlife. (C 1010.)
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7
In addition to the Section 404 permit application materials in the Application, Mr. Scott
Harding, a soil scientist with SCI Engineering, Inc., submitted a letter with attachments on
January
17, 2007, as part of public comment. (C 1929-2068.) Mr. Harding's letter confirmed
that WMII submitted an effective wetland mitigation plan, and that the Illinois Environmental
Protection Agency ("!EPA") has issued to WMII a Clean Water Act Section 401 Water Quality
Certification. (C 1929-1930.)
3.
Need
Ms. Sheryl R. Smith, senior project manager for Golder Associates, prepared the report
and testified on the need criterion. (C 0034-0064; C 1261-1275.)
In evaluating the need for the Facility, Ms. Smith identified the service area for the
Facility,
i.e.,
the geographic region from which the Facility intends to take waste. The service
area is comprised
of five counties in southwest Illinois, namely Madison, Monroe, St. Clair,
Clinton and Bond counties, and seven counties in Missouri, namely Franklin, Jefferson, Lincoln,
St. Charles, Warren, St. Louis and Washington counties. (C 1268-1269; C0040-004!.)
Based on population/employment projections and waste generation rates, Ms. Smith
determined that approximately 109 million tons
of waste will be generated within the service
area over North Milam's 17-year operating life.
If
100% of the recycling goals for all of the
counties in the service area are achieved, then approximately 70 million tons
of waste will
require disposal. The waste capacity available to the service area, however, is only
approximately
55 million tons. (C 1269-1273; C 0042-0044, C005!.) Given that the waste
capacity available to the service area is approximately 55 million tons, and the amount of waste
requiring disposal ranges between approximately 70 million and 109 million tons (depending on
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8
whether recycling goals are achieved), there is a disposal capacity shortfall ranging between
approximately
15 million and 54 million tons. (C 1273-1275; C 0053.)
ARGUMENT
I.
STANDARD OF REVIEW FOR CHALLENGE TO STATUTORY CRITERIA
A decision of the local siting authority regarding an applicant's compliance with the
statutory siting criteria
wil1 not be disturbed unless the decision is contrary to the manifest
weight
of the evidence.
Land and Lakes
v.
Pollution Control Board,
319
II\.
App. 3d 41,51,743
N.E.2d 188, 196-97 (3rd Dist. 2000). A decision is against the manifest eight of the evidence
only
if the opposite conclusion is clearly evident, plain, or indisputable from a review of the
evidence.
Turlek
v.
Pollution Control Board,
274
Ill.
App. 3d 244, 653 N.E.2d 1288 (1st Dist.
1995); CDT Landfill Corporation
v.
City ofJoliet,
PCB 98-60, slip op. at 4 (March 5,1998). If
there is any evidence which reasonably supports the local siting authority's decision, the decision
must be affirmed.
File
v.
D
&
L Landfill,
PCB 9-94, slip op. at 3 (August 30, 1990). That a
different decision might also be reasonable
is insufficient for reversal. The opposite conclusion
must be clear and indisputable.
Willowbrook Motel
v.
Pollution Control Board,
135 Ill. App. 3d
343,481 N.E.2d 1032 (1st Dist. 1985).
Petitioners failed to present any evidence to establish that the City's findings on criteria
(i) and (iii) were clearly and indisputably wrong. Instead, Petitioners' arguments are based on
factual misstatements, distortions
of the record, and speculation. On this record, the Board must
affirm the City's finding that criteria (i) and (iii) were satisfied.
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9
II.
THE UNCONTROVERTED EVIDENCE IN THE RECORD SUPPORTS THE
CITY'S FINDING THAT NORTH MILAM IS COMPATIBLE WITH THE
CHARACTER OF THE SURROUNDING AREA
Criterion (iii) of Section 39.2 consists of two parts: that the facility is located so as to (a)
minimize incompatibility with the character
of the surrounding area; and (b) minimize the effect
on the value
of the surrounding property. 415 ILCS 5/39.2(a)(iii). Petitioners only challenge the
City's finding that North Milam
is located so as to minimize incompatibility with the character of
the surrounding area. Specifically, Petitioners argue that North Milam is incompatible because
(a) there is no substantive buffer between North Milam and Horseshoe Lake State Park; (b)
American Indian Mounds are located on the proposed site; (c) the Cahokia Mounds State
Historic Site is too close; (d) wetlands will be disturbed; and (e) the compatibility assessment did
not consider compatibility during the Facility's operational life. As discussed below, these
arguments should be rejected.
A.
WMII Demonstrated the Facility's Compatibility with the Surrounding Area
Petitioners' arguments must fail because Mr. Schanuel gave clear and convincing
testimony that North Milam is compatible with the character
of the surrounding area. Mr.
Schanuel testified that the predominant land uses within a one-mile radius are agricultural and
open space mixed with industrial uses. He also testified that the area is zoned for landfills
as a
special use. Proximate property uses and zoning classifications are proper considerations for
determining whether a proposed facility
is compatible with the character of the area.
See
Fairview Area Citizens Taskforcev. IPCB,
198
Ill.
App. 3d 541, 555 N.E.2d 1178 (3d Dist.
1990) (proposed landfill was compatible with
an area of abandoned strip mines). No other
witness contradicted
or refuted Mr. Schanuel's findings or opinions. Thus, the unrefuted
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10
evidence of surrounding land uses was sufficient evidence to support the City's finding that
North Milam
is compatible with the character of the surrounding area.
B.
WMII Presented Evidence of Sufficient Buffers Between North Milam and
Horseshoe Lake State Park
Petitioners argue that "there is no substantive buffer between the proposed landfill and
Horseshoe Lake State Park." (Pet. Sr., pp. 6-7.) They base this argument on the incorrect
assumption that the Alton and Southern Railroad tracks on the northern boundary
of the Facility
are the only buffer between North Milam and Horseshoe Lake State Park. The evidence in the
record shows that there are additional significant buffers between North Milam and Horseshoe
Lake State Park.
Specifically, Mr. Schanuel testified that distance is a significant buffer given that most
of
the recreational activities occur on the north side of the park approximately 1.5 to 2 miles from
North Milam. (C 1019-1020.) He also testified that other significant buffers include the railroad
tracks, open fields, Horseshoe Lake itself, and an approximately thirty-acre wetland mitigation
area. (C 1020.)
Mr. Schanuel's report discussed the End Use Plan that proposes methods for phased-in
screening
of North Milam from off-site views with natural materials, including a fairly
continuous and dense buffer
of evergreen and shade trees, native wildflowers and grasses around
the perimeter of the landform and surrounding sedimentation basins, to replicate the character of
the natural landscape of the surrounding area. (C 0487-0488.)
Criterion (iii) requires an applicant
to demonstrate that it has done or will do what is
reasonably feasible to minimize incompatibility.
File
v.
D
&
L Landfill, Inc.,
219111. App. 3d
897,900,579 N.E.2d 1228, 1231, 1236 (5th Dist. 1991);
Waste Management
v.
Pollution
464471
II
Control Board,
123
Ill.
App. 3d 1075, 1090,463 N.E.2d 969,980 (5th Dist. 1984). Where there
is no incompatibility, however, minimization is not required.
Tate
v.
Illinois Pollution Control
Board,
188
Ill.
App. 3d 994, 1022, 544 N.E.2d 1176, 1197 (1989). Thus, because Mr. Schanuel's
testimony satisfied the first part
of criterion (iii), WMII was not required to show any steps to
minimize what did not exist. Nonetheless, Mr. Schanue1 provided ample testimony as to WMII's
efforts to enhance North Milam's compatibility with the surrounding area by providing
significant landscaped screenings and buffers around the Facility. This type
of screening and
buffering is recognized as an appropriate effort to reduce incompatibility with neighboring
properties.
See Peoria Disposal
Co.
v.
Peoria County Board,
PCB 06-184, slip op. At 95-96 (
June 21, 2007).
C.
Archaeological Issues
Are Not Part of the Siting Criteria, And Petitioners
Failed to
Present Evidence that American Indian Mounds Are Located
Within the
Subject Site, or That
WMII
Has Not Made Efforts to Minimize
Any Incompatibility with Archaeological Sites
The Act requires the local siting authority to approve or disapprove site location
suitability considering the nine criteria listed
in Section 39.2(a).
See Clutts
v.
Beasley,
185
Ill.
App. 3d 543,546,541 N.E.2d 844, 846 (5th Dist. 1989) (rejecting argument that proposed
landfill was incompatible with a totally residential and agricultural area where water supply
could be contaminated because there is no criteria requiring guarantee against water supply
contamination or that the facility
to be built in the "best" place). Archaeologic impact from a
proposed landfill
is not part of the analysis under Section 39.2(a), and criterion (iii) is not
intended to make any such evaluation part
of the local siting authority's review. Rather,
Criterion (iii) is concerned with an independent review
of the character of the surrounding area
and its compatibility with the proposed use.
Hoesman
v.
City Council ofthe City of Urbana,
464471
12
PCB 84-162, slip op. at 10-11 (March 7, 1985). That compatibility evaluation cannot be negated
by issues relating to construction, operation or design.
[d.
As discussed above, an independent
assessment was conducted and a determination of compatibility was made.
Nevertheless, Petitioners argue that North Milam is incompatible with the surrounding
area based on the incorrect statement that American Indian Mounds are located within the
Facility boundary. (Pet. Br.
P. 7.) Petitioners did not present any evidence at the hearing to
support this contention, and nothing contained in the Application or presented by WMII at the
hearing supports it. Thus, Petitioners'claim that American Indian Mounds are located within the
Facility boundary should be disregarded as unsupported conjecture that is insufficient to warrant
a reversal
of the City's finding that WMII satisfied criterion (iii).
Indeed, the evidence in the record demonstrates that American Indian Mounds are not
located within North Milam. WMII included in the Application information concerning the
archaeological investigation at North Milam, namely, the Burns
&
McDonnell report. That
report identified sites
of archaeologic interest that were discovered during its surveys and
concluded that all identified sites were fully investigated or avoided. (C 0718-0720.)
In
addition
to the report in the Application, Burns
&
McDonnell submitted additional materials as public
comment to clarify that no mounds have been located within North Milam and there are no
known burial sites within the Facility. (C 1591-1593.) With regard to the specific sites
referenced by Petitioners, Burns
&
McDonnell clarified that: (i) site 1316 is not within North
Milam's footprint, and in any event, it will be avoided for any future activity and there were no
burial features at the site; (ii) site 1385 is not on WMII-owned property and is 1,000 feet from
North Milam's boundary; and (iii) site 1375 also is outside North Milam, is protected by a fenced
464471
13
75-foot buffer fence, and the ridge associated with this site has gone through a complete Phase 3
mitigation. (C 1592-1593.) Thus, WMII submitted sufficient evidence to show that it has made
sufficient efforts to minimize any incompatibility with archaeologic sites by mitigating or
avoiding any such sites.
D.
The Potential "Impact" or "Effect" on Cahokia Mounds
Is
Not Part of the
Siting Criteria, Aud Petitioners Have Failed to Present Any Evidence
of
Negative Impact or Adverse Effects on Cahokia Mounds
Petitioners also oppose North Milam "because of the landfill's potential impact on
Cahokia Mounds." (Pet. Br., p. 8.) Whether North Milam has any potential negative impact or
"adverse effect" on the Cahokia Mounds, as that term is defined in the regulations of Section 106
of the National Historic Preservation Act ("NHPA"), 36 CFR Part 800.5(a)(l), (b), is not relevant
to the local siting process under Section 39.2. Because Section 39.2 requires the local siting
authority to base its approval or disapproval on the nine statutory criteria,
Clutts,
185
111.
App. 3d
at 546,
541 N.E.2d at 846, it would have been improper for the City to find incompatibility based
on this issue.
It
also would have been against the manifest weight of the evidence presented to
find that North Milam is incompatible with Cahokia Mounds.
Notwithstanding the irrelevance
of Petitioners' argument, Mr. Schanuel provided
evidence that North Milam is compatible with Cahokia Mounds. First, he determined (and
Petitioners apparently do not dispute) that Cahokia Mounds is approximately two miles away
from North Milam to the northeast. (C 1021.) He further determined that Cahokia Mounds is
physically and visually separated from North Milam by a number of intervening uses including
Interstate Highway 1-55/70, Illinois Route
III, considerable residential and commercial
development in the Village of Fairmont City, the Cahokia Canal and associated vegetation, and
464471
14
natural areas. (C 0462-0464.) Mr. Schanuel also based his opinion on his consideration of off-
site views
of North Milam from Cahokia Mounds, which showed that the proposed landform is
barely visible from the top of the Mounds. (C 0472-0473; C 0477.)
Furthermore, on August 3, 2007, the IHPA issued a letter to the U.S. Army Corps
of
Engineers wherein the IHPA concluded that "the proposed North Milam landfill expansion site
does not pose an adverse visual impact to Cahokia Mounds National Historic Landmark."
(WMII IPCB Ex. 1.)
It
further stated that it has no objection to North Milam. (WMII IPCB Ex.
1.)
The IHPA, therefore, disagrees with Petitioners' contention that North Milam will have an
adverse visual impact on Cahokia Mounds.
Again, Petitioners did not offer any evidence to refute Mr. Schanuel's findings
or
opinions. Accordingly, WMII's evidence that North Milam is compatible with Cahokia Mounds
is uncontroverted and was sufficient to support the City's finding that WMII met criterion (iii).
E.
The Potential Impact on Wetlands is Not Part ofthe Siting Criteria, And
WMII
Has Presented Sufficient Evidence of Compatibility Based on Its
Mitigation Plans
Again, WMII is not required by Section 39.2 to submit evidence to the City about
potential impacts to wetlands in the area.
See Clutts,
185 Ill. App. 3d at 546,541 N.E.2d at 846.
Nonetheless, WMII included in the Application its Section 404 permit application and other
relevant studies and documentation related
to its plans to mitigate any negative impacts the
proposed landfill would have on area wetlands. (C 0735-0774.) WMII's plan includes a
2:
I
impact-to-mitigation ratio. (C 0736; C 0740-0742.) Petitioners presented no evidence
challenging WMIl's plan.
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15
F.
Schanuel's Evaluation Considered North Milam's Compatibility with the
Surrounding Area During Operation and at End Use
Petitioners' argument that Mr. Schanuel's compatibility evaluation only considered "end
use" compatibility is incorrect. (Pet. Br., pp. 8-9.) The compatibility evaluation considered
North Milam's compatibility with the character
of the surrounding area both during operation and
at closure. The End Use Plan discussed a phased-in plan for screening and buffering.
It
specifically stated that native grasses and wildflowers will be "planted at the perimeter during the
early stages of activity." (C 0487.)
It
further indicated that other aspects of screening and
buffering will be implemented throughout the life
of the Facility, and not just at the end use
stage. (C 0487.)
Petitioners also argue that North Milam would be incompatible with the surrounding area
during its operating life because of objectionable smells, sights, and sounds, but they did not
introduce any evidence
to that effect. (Pet. Br., p. 9.) WMII, on the other hand, provided ample
evidence at the public hearing and in the Application addressing concerns relating to odor, noise,
and litter in connection with the operations assessment under criteria (ii) and (v). Petitioners do
not challenge the City's findings that criteria (ii) and (v) were satisfied.
In any event, the operational issues Petitioners raise are not meant to be determinative
of
compatibility under criterion (iii).
See Hoesman,
PCB 84-162, slip op. at 10-11. The Board in
Hoesman
explained that if criterion (iii) is to be given a meaning which is distinct from criterion
(ii) and criterion (v), it must be interpreted
as requiring a review of the proposed site's location in
terms of the character of the surrounding area, and independent of any measures which may be
taken to mitigate
an adverse impact on the area.
Id.
The Board stated:
This
is not to say that construction, design, and operational features
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16
are irrelevant. They may certainly be evidence of the character of
the site itself. However, they do not negate the need to
independently consider the character of the area in which the site is
to be located.
Id.
In light of
Hoesman,
the Board should reject the argument that WMII has not satisfied
criterion (iii)
by not considering odor, noise or visual impacts as part of its compatibility
evaluation.
III.
WMII DEMONSTRATED THAT NORTH MILAM IS NECESSARY TO
ACCOMMODATE THE WASTE NEEDS OF THE AREA IT INTENDS TO
SERVE TAKING INTO CONSIDERA
nON THE REMAINING WASTE
DISPOSAL CAPACITY FOR REGION SIX
Petitioners contend that WMII cannot satisfy criterion (i) because, according to a 2005
\EPA landfill capacity report for Region Six, Region Six increased its landfill capacity by 29%
from 2004, and landfill operators for that Region reported 17 years of capacity remaining for
waste disposal. (Pet. Br., pp. 9- I0.) Sheryl Smith testified on cross-examination that she
considered this data as well as other data on the remaining permitted capacity for the landfills
evaluated
in 2005 and 2006, that this data is contained in Table 1-3 of her report, and that the
data is included in her analysis. (C1290-1291; C0062-0063.) Thus, this data does not affect the
correctness
of the City's finding that criterion (i) was met.
Criterion (i) is established where it is shown that a proposed facility is reasonably
required by the waste needs of the service area taking into consideration its waste production and
disposal capabilities.
File v. D
&
L Landfill,
219 Ill. App. 3d 897, 579 N.E.2d 1228 (5th Dist.
1991). WMII is not required to show absolute necessity to satisfy criterion (i).
Id.
Petitioners
cite
Waste Management ofIllinois, Inc. v. Pollution Control Board,
175 Ill. App. 3d at 1023,
1031,530 N.E.2d 682,689 (2d Dis!. 1988), because in that case, the court affirmed the finding of
464471
I7
a local siting authority that remaining capacity of nine years was insufficient need. However,
case law has found the need criterion established when the remaining capacity of the area
landfills is ten years.
See E
&
E Hauling, Inc.
v.
Pollution Control Board,
116
Ill.
App. 3d 586,
451 N.E.2d 555 (2d Dist. 1983).
In any event, WMII has presented credible evidence and expert opinion establishing that
North Milam is necessary to accommodate the waste needs of the area it is intended to serve.
Ms. Smith testified that there is a disposal capacity shortfall ranging between approximately
15
million and 54 million tons. (C 1273-1274; C 0053.) No contrary evidence regarding need was
offered. Thus, the evidence supports the City's finding
of need and the decision is not against the
manifest weight
of the evidence.
Industrial Fuels
&
Resources
v.
Pollution Control Board, 227
Ill.
App. 3d 533, 592 N.E.2d 148, 156 (lst Dist. 1992).
IV.
THE LOCAL SITING PROCEEDING
WAS
FUNDAMENTALLY FAIR
Petitioners argue that the City's local siting proceedings were fundamentally unfair
because (a) they were not permitted
to cross-examine WMII's witnesses concerning the
American Indian Mounds and the wetlands; (b) information concerning the American Indian
Mounds and the wetlands was submitted during the public comment period, rather than during
the hearing; and (c) the City did not prepare a written decision specifying the reasons for its
decision. (Pet. Br., pp. 10-14.) These arguments are all without merit.
A.
It
Is Not Fundamentally Unfair to Limit Cross-Examination to Relevant
Evidence
While fundamental principies
of due process apply to local siting procedures, it is well-
settled that such procedures are not required
to comply with constitutional guarantees of due
process.
Daly
v.
Pollution Control Board,
264
Ill.
App. 3d. 968, 637 N. E.2d 1153, 1155
(I
st
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18
Dist. 1994). To comport with fundamental due process, local siting proceedings must include
the opportunity to be heard, a fair opportunity to present evidence, object to evidence and cross-
examine witnesses, and impartial rulings on the evidence.
T.OT.AL
v.
City ofSalem,
288
Ill.
App. 3d 565, 573-74, 680 N.E.2d 810, 818 (5th Dist. 1997);
Daly,
264 Ill. App. 3d. at 972, 637
N.E.2d
at 1155. However, there is no right to cross-examine witnesses on irrelevant subject
matter.
See Concerned Adjoining Owners
v.
Pollution Control Board,
288
Ill.
App. 3d 565, 680
N.E.2d 810, 817-818 (5th Dist. 1997).
In
Concerned Adjoining Owners,
the city of Salem purchased land for a proposed
landfill. The city manager filed an application for site approval for the landfill. After conducting
a hearing, the city council approved the application. The petitioners sought to cross-examine a
witness on the issue
of economics and profitability of the proposed landfill, but were denied the
opportunity. The petitioners argued that the decision granting site approval should be reversed
because their inability to cross-examine a witness was fundamentally unfair. The petitioners
argued that the information they sought from the witness is part of the needs assessment and,
therefore, was a relevant consideration. The appellate court disagreed, and held that because
economics is not specifically listed in Section 39.2, its potential for consideration by the local
siting authority is discretionary, not mandatory.
Id.,
at 574-75, 680 N.E.2d at 817.
Here, consideration
of archaeologic sites and wetlands is not enumerated as a statutory
criterion, and is not a necessary part of the compatibility evaluation. Thus, in accordance with
Concerned Adjoining Owners,
inquiry into those subjects is not mandatory. WMII did not
address those issues with Mr. Schanuel on direct examination, so the Hearing Officer properly
sustained WMII's objections when Petitioners attempted to probe into these issues on cross-
464471
19
examination.
In
short, there was nothing fundamentally unfair about limiting the hearing to
relevant evidence.
B.
Public Comment Was In Accordance with the Ordinance
Petitioners' argument that the proceedings were fundamentally unfair because WMII
failed to present evidence relating to American Indian Mounds and the wetlands is simply
untenable. According to Ordinance No. 1670 ("Ordinance"), applicants and participants have the
discretion to submit whatever evidence they wish to include for the record at hearing. (C 000 IA-
OOIIA.)
It
is up to the party submitting the evidence to determine what information they believe
will be important and to make that submission. WMII submitted documentary and testimonial
evidence relating
to each of the nine siting criteria.
It
was not required to submit evidence on
subjects that Petitioners wanted to address.
Petitioners also contend that WMII's "last-minute" submission
of wetland or archaeology
information created an unfair playing field in that Petitioners were without time to adequately
respond. Section 5
of the Ordinance outlines the submission procedures for public comment
upon the conclusion of the public hearing. (C 0006A-0008A.) The 30-day public comment
period provided adequate time for the preparation and submission
of comment to the hearing
officer to consider his decision-making.
In
accordance with these procedures, numerous public
comment was submitted in favor
of the Application. Petitioners were permitted to make their
own timely submissions. There was nothing fundamentally unfair about the manner in which
public comment was submitted
or received.
See Land and Lakes v. Pollution Control Board, 319
Ill.
App. 3d 41,51,743 N.E.2d 188, 196 (3rd Dist. 2000) ("the Act does not require that public
comment period be held open to allow parties to respond to materials submitted on the last day. ")
464471
20
C.
The February 6, 2007 City Couucil Minutes Together with the Hearing
Officer's January 13,2007 Findiugs
of Fact and Recommendation Constitute
the City's Written Decision
Petitioners contend that the City's approval is fundamentally unfair because it does not
constitute a written decision. Section 7
ofthe Ordinance governs the site approval decision
process.
(C 0009A.) Section 7(A) states that the hearing officer shall make written findings of
fact
and
a recommendation concerning the site approval request, and that any findings of fact and
recommendation shall be supported by the record and shall be presented to the governing body
of the City within 45 days of the conclusion of the public hearing. (C 0009A.) Section 7(C)
states that the City only need make a determination concerning a site approval request within 180
days from the date
of the City Clerk's receipt of the site approval request. (C 0009A.)
On January 13, 2007, the Hearing Officer timely submitted to the City a written findings
offact and recommendation supported by the record. (C 2178-2217.) On February 6, 2007,
during a scheduled City Council meeting, the City adopted the Hearing Officer's written findings
of fact and recommendation into consideration and voted unanimously to approve the
Application. These events were transcribed
in the form of the meeting minutes. (C 2242.)
The fact that the City did not prepare a separate written decision does not invalidate the
approval or render the proceedings fundamentally unfair.
See Peoria Disposal
Co.
v.
Peoria
County Board,
PCB 06-184, slip op. at 33-34 (June 21, 2007).
In
Peoria Disposal,
the local
siting authority met to vote on a final decision concerning local siting. A motion
to approve the
recommended findings
of fact was moved and seconded, but then failed by a vote of twelve
against
to six in favor. A court reporter transcribed the meeting and the local siting authority
included those transcripts
in the siting record, but the local siting authority kept no minutes of the
464471
21
meeting and did not draft any subsequent summary of the vote.
Id.,
at 12. The petitioners in that
case argued that there was no final action taken or written decision issued as required under
Section 39.2(e) of the Act. The Board disagreed and found that "the transcript and recommended
findings of fact constitute the written decision required by the Act" and that "to hold otherwise
would elevate procedural form over the substance and intent
of Section 39.2, which is to allow
for local government to have meaningful say on issues ofpollution control facility siting."
Id.,
slip op. at 33-34. Therefore, under the Board's ruling in
Peoria Disposal,
the Hearing Officer's
written findings of fact and recommendation together with written transcript of the City's
approval on February
6,2007, constitute a written decision in accordance with Section 39.2(e).
CONCLUSION
For the reasons set forth above, the City's findings that WMII satisfied criteria (i) and (iii)
were not against the manifest weight of the evidence. Furthermore, the proceedings before the
City were fundamentally fair. Therefore, the City's decision granting siting approval for North
Milam should be affirmed.
Respectfully submitted,
WAST~ANAGEME~S'
INC.
By
----'---+
_
Donald J. Moran
Lauren Blair
Pedersen
&
Houpt, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 6060 I
(312) 641-6888
464471
Penni S. Livingston
Livingston Law Firm
5701 Perrin Road
Fairview Heights, Illinois 62208
618-628-7700
22
CERTIFICATE OF SERVICE
I,
Donald J. Moran, an attorney, on oath state that I caused a copy of the foregoing
RESPONSE BRIEF OF WASTE MANAGEMENT OF ILLINOIS, INC. IN SUPPORT OF
THE CITY OF MADISON'S GRANT OF SITE LOCATION APPROVAL FOR THE
NORTH MILAM FACILITY
to be served on the following parties via electronic mail:
Bruce
A.
Morrison
Great Rivers Environmental Law Center
705 Olive Street, Suite 614
St. Louis,
MO 63101-2208
bamorrison@greatriverslaw.org
John
T. Papa
Callis, Papa, Hale, Szewczyk
&
Danzinger
1326 Niedringhaus Avenue
Granite City,
IL
62040
jtp@callislaw.com
Carol Webb
Il1inois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Il1inois 62794-9274
webbc@ipcb.state.il.us
and
by depositing same in the U.S. mail at 161 N. Clark St., Chicago, Illinois 60601, on or before
5:00 p.m. on this 9th day of October, 2007 to the addresses indicated above.
~.
~
452779.1