Printed on Recycled Paper
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY, and
)
)
SIERRA CLUB,
)
)
Co-Petitioners,
)
)
v.
) PCB_07-84_____________
) (Pollution Control Facility
CITY OF MADISON, ILLINOIS, and
) Siting Appeal)
)
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
To:
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
John T. Papa
Callis, Papa, Hale, Szewczyk & Danzinger, PC
1326 Niedringhaus Avenue
Granite City, IL 62040
NOTICE OF FILING
Please take notice that on the 15
th
day of October, 2007, I have filed with the
Office of the Clerk of the Pollution Control Board petitioner’s reply brief, a copy of
which is herewith served upon you.
/s
Bruce A. Morrison
Bruce A. Morrison (Il. Reg. No. 6279301)
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
Electronic Filing, Received, Clerk's Office, October 15, 2007
1
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’ REPLY BRIEF
Argument
I.
A. There is no substantive buffer between the proposed landfill
and Horseshoe Lake State Park
In their opening brief petitioners showed (pp. 6-7) that the proposed facility is
incompatible with the surrounding area because the railroad tracks provide no meaningful buffer
for many of the persons using Horseshoe Lake State Park.
For its response Waste Management argues (p. 11) that there are additional significant
buffers between Horseshoe Lake State Park and North Milam. Specifically, it points to (p. 11)
the distance between the activities at the north end of the Park, open fields, the Lake itself, and a
30-acre wetland mitigation area.
Horseshoe Lake State Park is a 2,968-acre Park. C 0456 (Ex. ABC 8), 0458,
0459, 0460. The uses at the far end of the Park may be buffered by the acreage that consists of
the Park itself (for the activities “located on the north side,” “open fields, distance and the lake
Electronic Filing, Received, Clerk's Office, October 15, 2007
2
itself” (C 1020)), but that is not the case for those who use the other parts of the Park. For
example, Waste Management’s consultant conceded that, if constructed, the landfill would be
bounded by railroad tracks on the landfill’s Northern boundary. C 0458. The Fish and Wildlife
area at the southern end of the Park abuts these railroad tracks. C 0462. Much of the nature and
wildlife observation is at the southern end of the Park. People fish in and on Horseshoe Lake. C
1538. People also use the lake for subsistence fishing. C 2160, C2165. People hunt along the
Lake and on the Lake itself. C1538. Many of the public hunting blinds are located along the
southern portion of the Lake. C 1543. Horseshoe Lake is just 2,000 feet from the proposed
landfill. Ex. ABC 8 (Location Map), C 0456. The record simply does not support the assertion
that there are additional significant buffers between most of the Park and North Milam.
Waste Management next asserts (p. 11) that its consultant’s report proposed a phased-in
screening of North Milam from off-site views with natural materials. Waste Management is
attempting to fabricate a buffer for the landfill, while in operation, where none exists. The
consultant’s discussion of these natural materials is set out in the section of his report that deals
with North Milam’s “End Use Plan.” C 0487. These materials are not proposed to serve as a
buffer during the operation of the landfill. That these materials are not a buffer for the landfill’s
operations is confirmed by the consultant’s testimony. There was no effort to evaluate the visual
impacts of the landfill during the landfill’s operation. C 1051. And Waste Management’s
consultant made no attempt to evaluate impacts from odor during the landfill’s operation upon
nature observers, birdwatchers, those walking trails, fishing, picnicking, camping and hunting, or
upon anyone else. C 1021. Moreover, with expansions, the proposed landfill may operate for
many years beyond its initial 17-year proposed life span.
1
1
In its brief Waste Management characterizes (p. 1) the proposed landfill as an expansion of
the existing Milam landfill, but the proposed landfill sits in a different city, a different county,
and on the opposite side of the Cahokia Canal. C 0019; Ex. ABC 8 (Location Map), C 0456. It
is a different landfill.
Electronic Filing, Received, Clerk's Office, October 15, 2007
3
The location of the proposed landfill is incompatible with the surrounding area. It is
located just 2,000 feet from a State park used by hundreds of thousands of people every year. C
0456. It is not possible to minimize that incompatibility.
B. American Indian Mounds are located on the proposed landfill site and
ancient human remains have been found at the site
Petitioners showed in their opening brief (p. 3) that Waste Management encountered
Native American sites (sites 1316, 1375, and 1385) at the proposed landfill site.
Waste Management responds (pp. 12-13) that the impacts to these Mounds are irrelevant
and not part of the siting criteria analysis. The Native American Mounds are a predominant part
of the surrounding area. These Mounds are associated with the Cahokia Mounds World Heritage
Site. C 1539, 2069. Waste Management’s disturbance of these sites (see opening brief, p. 3)
has provoked an ongoing outcry from the Native American community:
The value of Cahokia Mounds . . . is inestimable as both a Sacred Site for
American Indians and an important resource for people throughout the world. . . .
There is no other place in the United States that has a greater claim to importance
as a Sacred Place than does Cahokia.
Sam Valenti, American Indian, C1589.
There are mounds on the land that they want to expand into. There’s also a burial
site and this is very sacred to indigenous people.
Deanna Wagner-Brice, C 1457.
You’re putting in a landfill next to Cahokia proper and potentially directly on top
of where remains have been discovered. We in contemporary society have a
Electronic Filing, Received, Clerk's Office, October 15, 2007
4
2069.
area of
deration be given to finding another location for the
moral obligation to do the right thing. We wouldn’t do that to a cemetery of
today. Nobody would stand for that.
Carrie Wilson, consultant for the Osage Nation, C 2153.
[I]f 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
Ruben Aguirre, member of the Tongva Nation, C 1459.
Further, Waste Management’s disturbance of these sites has provoked criticism from
persons who study these Mounds:
In addition to this garbage adversely affecting one of Illinois most important
tourist attractions, two pre-Columbian mounds associated with the Cahokia
mounds culture are located within the proposed area of development, as is another
site containing human remains and other features such as houses that are
significant.
John Kelly, Ph.D., Archaeologist, Asst. Dir Powell Archaeological Research Center, C
[T]he identification of two pre-Columbian mounds within the proposed
development, and recovery of human remains from a site that has been
determined eligible for inclusion on the National Register of Historic Places, are
additional reasons that consi
St. Louis region’s garbage.
Cahokia Archaeological Society, C 2074.
Electronic Filing, Received, Clerk's Office, October 15, 2007
5
o not refute the fact that the Native
meric
ther
-
a
. Second, whether some of the Mounds are onsite or offsite, Waste Management’s
ct
87,
2095.
sed
landfill
evidence
to refut
form of the existing landfill:
und, you look out and you see a landfill and its very
Deanna
onks Mound and you can see it. Monks Mound is the highest
Jim Be
Waste Management’s reliance (p. 12) upon
Hoesman v. City Council of the City of
Urbana
, PCB 84-162 (March 7, 1985) and
Clutts v. Beasley
, 185 Ill. App. 3d 543, 546, 541
N.E.2d 844, 846 (5
th
Dist. 1989), is misplaced. These cases d
A
an Mounds are as much a part of the “character of the surrounding area” as are the o
areas in the vicinity of the proposed landfill. See p. 7,
infra
.
Finally, Waste Management argues (p. 13) that the evidence demonstrates that the
Mounds are not located within North Milam. First, that is not what the record shows. See pp. 9
10,
infr
a ions to develop the proposed landfill have disturbed these sites. C 1592, 1593, 2084, 20
C.
The site is within 2,140 feet of the Cahokia Mounds World Heritage
Site and National Historic Landmark Boundary
In their opening brief, petitioners showed (p. 8) that there is widespread opposition to the
landfill because of the landfill’s impact on the Cahokia Mounds World Heritage Site.
Waste Management counters (pp. 14-15) that its consultant determined that the propo
is physically and visually separated from Cahokia Mounds, and that there is no
e that opinion. There is evidence to the contrary in the
You go up on Monks Mo
distressing. Some people ask if this is another mound.
Wagner-Brice, C 1457.
You go up on M
Native American site. It’s disrespectful to build a landfill higher than that.
nsman, C 1469.
Electronic Filing, Received, Clerk's Office, October 15, 2007
6
ia
of
2
A landfi
storic
parable to rain forests and
The landfill will certainly detract from the overall experience of visitors to Cahok
Mounds Heritage Site in that it will be a visual detraction, especially from the top
Monk’s Mound.
John Kelly, Archaeologist, Asst. Dir Powell Archaeological Research Center, C2069.
ll by its very nature is a mound. Monks Mound is the largest prehi
earthen construction in the Americas. C 1547. It is simply not possible to minimize the
incompatibility of the proposed landfill with Cahokia Mounds.
D. The proposed landfill will take eighteen acres of wetlands
Petitioners showed in their opening brief (p. 8) that the proposed landfill will take 8.5
acres of farmed wetlands and 9.9 acres of forested wetlands.
Waste Management responds (p. 7) that it was not required to submit evidence about the
impacts to the wetlands because the wetlands are subject to a separate review process under the
Clean Water Act. That the wetlands are subject to a separate review process does not insulate
them from review here.
3
The wetlands are as much a part of the “character of the surrounding
area” as are, for example, the “natural open areas,” discussed by Waste Management’s consultant
in his report. C 0459. Wetlands provide “fish and wildlife habitats, natural water quality
improvement, flood storage, . . . opportunities for recreation and aesthetic appreciation . . .
Wetlands are among the most productive ecosystems in the world, com
coral reefs.” U.S Environmental Protection Agency,
Wetlands Functions and Values
, online at
2
Waste Management points to (p. 15) the IHPA letter that it submitted under an offer of proof.
Cahokia Mounds was declared a World Heritage Site by the United Nations Educational,
Scientific and Cultural Organization (UNESCO) in 1982, one of just 20 such sites in the United
States. See
http://whc.unesco.org. The IHPA cannot sign away the protection due a World Heritage
Site. Nor can it represent the tribal nations and indigenous peoples that consider a site sacred
because of the existence of mounds, burials or the discovery of prehistoric remains.
3
Similarly, that the Illinois Department of Natural Resources administers the State’s parks did
not insulate Waste Management from evaluating the impact of the proposed landfill on
Horseshoe State Park. See, e.g., C 0462.
Electronic Filing, Received, Clerk's Office, October 15, 2007
7
http://www.epa.gov/watertrain/wetlands. See also C 2158. Horseshoe Lake and the area
wetlands are on the Mississippi River flyway. C 2164.
The siting criteria require Waste Management to locate the proposed landfill in a manner
th
moderate to high
erty. C 1939. It
is not p
E. No effort was made to determine whether the proposed landfill would be compatible
rea during the landfill’s operation.
ade no
ncil of the
e
That Waste Management mentions the operation of the landfill during
its discussion of criteria (ii) and (v), or mentions its phased-in plan for screening as part of its
End Us
g
easons set out in petitioners’ opening brief,
the proposed landfill is not located so as to minimize incompatibility with the character of the
surrounding area. In fact, it is not possible to minimize the incompatibility of the proposed
at minimizes incompatibility with the surrounding area, including the wetlands. The13.9 acre
quality wetlands complex lies in the central portion of the prop
ossible to minimize the incompatibility of North Milam with these wetlands.
with the surrounding a
In their opening brief petitioners pointed out (pp. 8-9) that Waste Management m
effort to determine whether the proposed landfill would be compatible with its surroundings
during its operation. C 1025-1026, 1051.
Waste Management responds (p. 16) that operational issues are not meant to be
determinative of compatibility under criterion (iii), relying upon
Hoesman v. City Cou
City of Urbana
, PCB 84-162 (March 7, 1985). However,
Hoesman
makes clear that “the futur
reconstruction or development of the site are irrelevant to the current
compatibility of an
operating site
with the surrounding area” (emphasis supplied). See also, e.g.,
Waste
Management of Illinois, Inc. v. Pollution Control Bd
., 123 Ill.App.3d 1075, 1088, 463 N.E.2d
969, 979, (Ill. App. 2nd Dist.1984) (expert evaluates landfill’s operation and effects as part of
compatibility analysis).
e Plan, does not cure a complete failure to evaluate the compatibility of the landfill durin
the landfill’s operation.
Summary
For the reasons set forth above, and for the r
Electronic Filing, Received, Clerk's Office, October 15, 2007
8
landfill with the character of the surrounding a
g
Waste Management’s witnesses about these Mounds, remains and wetlands
In their opening brief (pp. 10-13) petitioners showed that the proceedings before the City
of Madison were not fundamentally fair because Waste Management presented no evidence of
the on-site Native American Mounds, the ancient human remains, or the wetlands during the
remains and wetlands.
In response Waste Management asserts (pp. 2, 19) that it is not fundamentally unfair to
limit cross examination to relevant evidence concerning the statutory criteria. The issue, thus, is
clearly defined. If the Native American Mounds and wetlands are a part of the “character of the
surrounding area,” then Waste Management should have presented proof of the landfill’s
compatibility with the Mounds and the wetlands, and petitioners should have been permitted to
inquire about the Mounds and the wetlands during the hearing before the City.
To support its argument Waste Management relies upon (p. 12)
Clutts v. Beasley
, 185 Ill.
App. 3d 543, 546, 541 N.E.2d 844, 846 (5
th
Dist. 1989). Waste Management correctly points out
that, in
Clutts
, the court held that a guarantee against contamination is not required by the statute.
541 N.E.2d 844, 846. But
Clutts
does nothing to refute the point that the Native American
Mounds and the wetlands are as much a part of the “character of the surrounding area,” as are,
rea.
III.
A. and B.
The siting proceedings were fundamentally unfair because Waste Management failed to
present evidence during the public hearing of the Native American Mounds, the ancient
remains, and the wetlands at the site, and petitioners were precluded from examinin
public hearing and, at the hearing, petitioners were precluded from inquiring into these Mounds,
Electronic Filing, Received, Clerk's Office, October 15, 2007
9
y,
kes
aste Management here - documents
needed
remains, and the way the surveys were reported and conducted. Tr. 27.
for example, the open fields or farmland, addressed by Waste Management as part of its
compatibility analysis.
Waste Management also relies upon (pp. 20-21)
Land and Lakes Company v. Pollution
Control Board
, 319 Ill. App. 3d 41, 51, 743 N.E.2d 188, 196 (3
rd
Dist. 2000). In
Land and
Lakes
, the objectionable document had been submitted by the siting authority’s staff. See
Land
and Lakes Company v. Will County Board
, PCB 99-136 at 4 (August 5, 1999). This Board made
clear that the document was not expert testimony but instead was “a summary of the testimon
the public comments, and recommendations from the authors of the document.”
Land and La
Company v. Will County Board
, PCB 99-136 at 9. The objectionable document in
Land and
Lakes
was different from the documents submitted by W
to satisfy one of the siting criteria. Here Waste Management declined to put forth its
proof until 28 days after the conclusion of the hearing.
Further, petitioners showed in their opening brief (pp. 11-12) that they were precluded
from inquiring into these matters during the hearing before the City. In advance of that hearing,
petitioners had received papers concerning the Mounds from Waste Management's Mr. Durako.
Tr. 22. Petitioners gave these papers to archeologist Dr. John Kelly for his review. Tr. 23. Dr.
Kelly was critical of the papers, the procedures, the absence of an archaeological report on the
discovery of the human
He gave to petitioners notes for petitioners to use to question and rebut Waste Management's
report. ABC Ex. 11.
4
4
The Board may consider additional evidence relevant to the fundamental fairness of the local
siting proceedings where the evidence necessarily lies outside the record.
Land and Lakes
Company v. Illinois Pollution Control Board
, 743 N.E.2d 188, 194 (Ill. App. 3d Dist. 2000).
Electronic Filing, Received, Clerk's Office, October 15, 2007
10
t
16
0
h Cahokia.” C 1593. Further, an
attachm
e
ermine what information they believe is important, and to make that submission.
f
At the hearing petitioners were prepared to elicit from Waste Management testimony
about the landfill’s impacts to the Native American Mounds discovered at the site. C 1045-46.
Dr. Kelly had reported to petitioners that "it is not clear what sites are actually within the projec
area and what will be impacted." The lack of clarity concerning the impacts to these Mounds
remains. For example, in its brief, Waste Management points to (pp. 5-6) a January 16, 2007,
letter from Mr. Shinn to support the following assertions: “no American Indian Mounds have
been located within North Milam;” “there are no known burial sites within the site;” “site 13
is not within North Milam's footprint;” “site 1385 is not on WMII-owned property and is 1,00
feet from North Milam's boundary;” and “site 1375 also is outside North Milam.” A careful
reading of Mr. Shinn's letter (C 1591-1593), however, shows that none of these statements is
supported by that letter. What the letter does say is that although the “North Milam site is well
outside the established boundaries of the Cahokia National Landmark World Heritage site
5
. . . it
is certain the investigated prehistoric sites are associated wit
ent to this same letter says that the "investigation of the 180 acres that make up th
proposed project contained 7 archeological sites." C 1607.
Finally, Waste Management (p. 20) and the City (p. 4) both argue that it was for
petitioners to det
That simply is not feasible when petitioners lack access to the land that would allow them to
gather the data.
For the reasons put forth above, the Native American Mounds and wetlands are a part o
the “character of the surrounding area.” Accordingly, Waste Management should have presented
5
In its brief Waste Management concedes that the proposed landfill is only 2,140 feet outside
the boundaries
.
Electronic Filing, Received, Clerk's Office, October 15, 2007
11
ould
ause Mayor John Hamm wrote to the two archaeological
organiz
as
public
decision to approve the landfill. 415 ILCS 5/39.2
(e);
Lan
tten
the City
ision
the County Board’s decision set out verbatim in the transcript, this Board found that the
transcript and the recommended findings of fact satisfy the requirements of Section 39.2(e).
Id.
proof of the landfill’s compatibility with the Mounds and the wetlands, and petitioners sh
have been permitted to inquire about these Mounds and wetlands at the public hearing. It is even
more fundamentally unfair bec
ations stating that the City’s decision was based on the archaeological report submitted
comment. C 2246-47.
C. There is no written decision of the City specifying the reasons for the decision
In their opening brief, petitioners showed (pp. 13-14) that there is no written decision
here that specifies the reasons for the City’s
d 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).
The City argues (p. 4) that the action taken by its City Council reflected in its written
minutes of February 6, 2007, is sufficient to comply with the statutory requirement of a wri
decision with reasons given. Similarly, Waste Management asserts (p. 2) “the City’s unanimous
approval and adoption of the Hearing Officer’s findings of fact and recommendations at a
transcribed
[emphasis added] City Council meeting is sufficient to satisfy Section 39.2(e). Both
(p. 4) and Waste Management (p. 21) rely upon
Peoria Disposal Co. v. Peoria County
Board
, PCB 06-184 slip op. at 33-34 (June 21, 2007.)
In
Peoria Disposal
, this Board had before it “the entire decision . . . stated verbatim in
the transcript.”
Peoria Disposal Co. v. Peoria County Board
, PCB 06-184 slip op. at 13. As
pointed out by one of the parties, “the County Board could not have created a written dec
that was more accurate and complete than the final meeting transcript.
Id
. With the reasons for
Electronic Filing, Received, Clerk's Office, October 15, 2007
12
Here, however, the City of Madison did not even mention or refer to any reasons or to
any findings or to any documents stating the reasons for its approval. There is nothing in the
record specifying the reasons for the decision. The City of Madison simply voted:
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.
C 2242.
The vote, without reasons, does not satisfy the requirements of the Act.
Waste Management argues (p. 22) that the Hearing Officer’s written findings of fact and
recommendation together with the written transcript of the City’s approval on February 6, 2007,
are in accordance with Section 39.2(e). There is no written transcript of that meeting. There are
only meeting minutes that give no reason for the City’s decision.
Both the City (p. 4) and Waste Management (p. 21) assert that, on February 6, 2007, the
City adopted the Hearing Officer’s written findings of fact and recommendation. There is
nothing in the record to support these assertions. These are unsupported assertions made by
counsel that should be disregarded by this Board. E.g.,
Wauconda Fire Protection Dist. v.
Stonewall Orchards, LLP
, 343 Ill.App.3d 374, 377, 797 N.E.2d 1130, 1133 (Ill. App. 2nd Dist.
2003) (various statements in brief that are not supported by the record are not properly before the
reviewing tribunal, and cannot be used to supplement the record). See also
Allstate Ins. Co. v.
Kovar
, 363 Ill.App.3d 493, 499, 842 N.E.2d 1268, 1273, (Ill.App. 2nd Dist. 2006) (when party
relies on matters outside the record to support its position on appeal, the reviewing tribunal may
strike the entire brief or, alternatively, simply disregard the inappropriate material).
Electronic Filing, Received, Clerk's Office, October 15, 2007
13
The City tries to salvage its bare vote by arguing (p. 4) that “[g]iven the paucity of
competent information submitted by Petitioners during the lengthy siting process, there was no
basis for the City Council to have voted otherwise.” Whether there are thousands of pages of
“competent information” or none at all, the statute requires a written decision with reasons given.
Without reasons, there can be no meaningful administrative or judicial review of the City’s
decision:
It is clear that a decision by an administrative agency must contain findings to
make possible a judicial review of the agency's decision. The Supreme Court in
Securities and Exchange Com. v. Chenery Corp
., 318 U.S. 80, 94, 63 S.Ct. 454,
462, 87 L.Ed. 626, described the requirement stating that ‘the orderly functioning
of the process of review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained.’
Reinhardt v. Board of Ed. of Alton Community Unit School Dist. No. 11
, 61 Ill.2d 101, 103-104,
329 N.E.2d 218, 220 (Ill. 1975). Accord
Waste Management of Illinois, Inc. v. Illinois Pollution
Control Bd
., 145 Ill.2d 345, 352, 585 N.E.2d 606, 609 (Ill. 1991).
Electronic Filing, Received, Clerk's Office, October 15, 2007
14
Conclusion
The application fails to meet 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
CERTIFICATE OF SERVICE
The undersigned certifies that on the 15th day of October, 2007, a complete copy of the
foregoing document was served upon counsel for respondents by electronic mail.
/S/ Bruce A. Morrison
Electronic Filing, Received, Clerk's Office, October 15, 2007
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