Hasselberg, Williams, Grebe, Snodgrass & Birdsall

Attorneys and Counselors

Michael R. Hasselberg

Raymond

C. Williams

James

R. Grebe

Kenneth

M. Snodgrass, Jr.

Charles

J. Urban

David

L. Wentworth II

Alison

E. McLaughlin

Boyd

O. Roberts III

William

P. Streeter

Illinois Pollution Control Board

James R. Thompson Center

100

W. Randolph, Suite 11-500

Chicago, Illinois 60601

124 S.W. Adams Street, Suite 360

Peori~IL

61602-1320

Telephone: 309-637-1400

Facsimile: 309-637-1500

www.hwgsb.com

December 2, 2007

Lisa R. Barbee

Emily R. Vivian

Derek

A. Schroen

John

G. Dundas

Sandra

J. Birdsall

O/Counsel

Chester L. Anderson

(1906-2001)

RE:

Peoria Disposal Company v. Illinois Environmental Protection Agency (nIEPAn)

PCB No. 08-25 (Permit Appeal - Land)

Public Comment for Class 3 Permit Modification Request to Develop and Operate

a Residual Waste Landfill

Dear Members

of the Board:

Please be advised that we represent Peoria Families Against Toxic Waste and the Sierra

Club, Heart

of Illinois Group, regarding numerous issues relating to Peoria Disposal Company's

PDC No. 1 Landfill.

Peoria Disposal Company ("PDC") has now filed a Class 3 Permit

Modification Request in which it seeks to rename the PDC No. 1 Landfill as the "PDC No. 1

Residual Waste Landfill" and evade local siting authority for expansion. The IEPA denied the

request, and PDC has appealed to this Board. On behalf

of Peoria Families Against Toxic Waste,

and the Sierra Club, Heart

of Illinois Group, we respectfully request that the Board affirm the

IEPA's denial of the Class 3 Permit Modification Request to Develop and Operate a Residual Waste

Landfill.

This letter supplements public comment made

by letter dated March 7, 2007 and submitted

to the IEPA.

PDC's Class 3 Permit Modification Request encompasses the identical site and facility

which PDC proposed to expand during the "Application for Local Siting Approval

of a Pollution

Control Facility" filed with the Peoria County Board (as the local siting authority) on or about

November

9,2005. The proposed expansion submitted to the Peoria County Board consisted of "a

vertical and approximately 8.2 acre horizontal expansion of the existing landfill (see Figure 1-1.) ...

provide[ing] an additional 2,471,000 cubic yards

of airspace (cyas) or 2,224,000 tons of capacity."

The "facility" contemplated by PDC in the Class 3 Permit Modification matter presently before the

Board was the identical "facility" for which expansion approval was overwhelmingly denied

by the

Peoria County Board in May 2006. This fact is further borne out

by reviewing the transcript of the

Class 3 Permit Modification Request PDC Environmental Management Facility public meeting held

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *

PCB Case No. 08-25 Public Comment

PFATW and HOI Sierra Club

Page 2

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on Friday, January 26, 2007 in the cramped hallways of PDC Laboratories, Inc. The January 26,

2007 hearing transcript reveals that in PDC's own words, this is the same expansion area proposed

in the siting application; the Class 3 Permit Modification Request is the exact same

permit

request if

PDC had won local siting authority from the Peoria County Board (January 26, 2007 transcript

pages

9, 53; R01401, 01445).

During the January 26, 2007 public hearing, at which approximately

69 members of the

public attended (R01387-91), PDC representatives also candidly acknowledged that a similar,

previous Class 3 modification request which had been made to the Agency had been denied by the

Agency (January 26, 2007 transcript, pp. 49-51; R01441-43). PDC was also confronted with the

fact that the conditions PDC proposed during the local siting hearing were only added

to get its way

with the Peoria County Board, not because it was interested in protecting Peoria County citizens

(January 26, 2007 transcript, pp. 62-64; R01454-56). Finally, at the January 26, 2007 public

hearing, PDC readily acknowledged the truth

of one of the main reasons why the Peoria County

Board overwhelmingly rejected the local siting expansion application: that the uppermost aquifer,

the aquifer

of concern, is connected to the San Koty aquifer (January 26, 2007 transcript, p. 74;

R01466).

At the January 26,2007 public hearing, Ron Edwards, Vice President

of Operations ofPDC,

in answering a question from a member of the public about PDC's treatment process producing a

chemically new end product and whether PDC could "sell it," stated: "No. It continues to be a

waste. It's, obviously, something that has to be managed

as a waste. It couldn't be recycled, it

couldn'tbe reclaimed, and it certainly couldn'tbe sold." (R01411).

PDC appealed the decision

of the Peoria County Board denying its expansion application

request to this Board. This Board, on June 21, 2007, affirmed the decision

of the Peoria County

Board. See

Peoria Disposal Company v. Peoria County Board,

IPCB Case No. 2006-184 (Siting

Appeal).

Town

Country Utilities, Inc. v. The Illinois Pollution Control Board,

225 Ill. 2d 103

(2007), the Illinois Supreme Court highlighted the importance placed by the General Assembly on

local siting authority

as follows:

All waste permitting is governed by title X

of the Act (415 ILCS

5/39 through 402 (West 2002)). Generally, an applicant for a new

pollution control facility must apply to the Agency to receive a

permit. 415 ILCS 5/39(a) (West 2002).

1981, the legislature

amended the Act to require local government siting approval

as a

precondition to the issuance

of an Agency permit. Pub. Act 82-682,

eff. November 12,1981; 415 ILCS 5/39(c) (West 2002). Prior to this

amendment, commonly known

as Senate Bill 172, this

court~'had

ruled that zoning ordinances of non-horne-rule units of local

government related to facilities governed by the Act were preempted

by the Act.

County ofCook v. John Sexton Contractors Co.,

75 Ill. 2d

494 (1979); see also

City ofElgin v. County ofCook,

169 Ill. 2d 53,

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *

PCB Case No. 08-25 Public Comment

PFATW and HOI Sierra Club

Page 3

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64 (1995). Senate Bill 172 overruled that decision and made clear that

all units

of local government, home rule and non-horne-rule alike,

have "concurrent jurisdiction" with the Agency in approving siting,

subject to the criteria in section 39.2.

City ofElgin,

169 Ill. 2d at 64;

Pub. Act 82-682, eff. November 12,1981; 415 ILCS 5/39.2(c) (West

2002).

Town

Country,

225 Il12d at 107-108.

The

Town

Country

Court also set forth the general rules regarding statutory construction,

as follows:

The fundamental principle of statutory construction is to ascertain

and give effect to the legislature's intent.

Alternate Fuels, Inc.

Director ofthe Illinois Environmental Protection Agency,

215 Ill. 2d

219, 237-38 (2004);

Michigan Avenue National Bank

County of

Cook,

191 Ill. 2d 493, 503-04 (2000). The language of the statute is

the most reliable indicator

of the legislature's objectives in enacting

a particular law.

Alternate Fuels, Inc.,

215 Ill. 2d at 238. We give

statutory language its plain and ordinary meaning, and, where the

language is clear and unambiguous, we must apply the statute without

resort to further aids of statutory construction.

Alternate Fuels, Inc.,

215 Ill. 2d at 238. We must not depart from the plain language of the

Act

by reading into it exceptions, limitations, or conditions that

conflict with the express legislative intent.

Alternate Fuels, Inc., 215

Ill. 2d at 238. Moreover, words and phrases should not be construed

in isolation, but must be interpreted in light

of other relevant

provisions of the statute.

Alternate Fuels, Inc.,

215 Ill. 2d at 238.

Town

Country,

225 Il12d at 117.

Besides Sections 39(c) and 39(h), the definitional statutes at issue in the instant case include:

Sec. 3.330. Pollution control facility.

(a) "Pollution control facility" is any waste storage site,

sanitary landfill,

waste disposal site,

waste transfer station,

waste treatmentfacility,

or waste incinerator. This includes

sewers, sewage treatment plants, and any other facilities

owned or operated by sanitary districts organized under the

Metropolitan Water Reclamation District Act.

The following are not pollution control facilities:

(1) (Blank);

(2) waste storage sites regulated under 40 CFR, Part

761.42;

(3) sites or facilities used

by any person

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *

PCB Case No. 08-25 Public Comment

PFATW and HOI Sierra Club

Page 4

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conducting a waste storage, waste treatment, waste

disposal, waste transfer or waste incineration operation, or

a combination

thereof,for wastes generated by such

person's own activities,

when such wastes are stored,

treated, disposed of, transferred or incinerated within the

site or facility owned, controlled or operated

by such

person, or when such wastes are transported within or

between sites or facilities owned, controlled or operated

such person;

*****

415 ILCS 5/3.330 (emphasis added).

Sec. 3.205. Generator.

"Generator" means any person whose

act or process

produces

waste.

415 ILCS 5/3.205 (emphasis added).

Sec. 3.505. Treatment.

"Treatment" means any method,

technique or process, including neutralization, designed to

change

the physical, chemical, or biological character or

composition

of any waste so as to neutralize it or

render

nonhazardous, safer for transport, amenable for recovery,

amenable for storage, or reduced in volume.

Such term includes

any activity or processing designed to change the physical form

or chemical composition

of hazardous waste so as to render it

nonhazardous.

415 ILCS 5/3.505 (emphasis added).

Alternate Fuels, Inc. v. Director ofthe Illinois Environmental Protection Agency,

215 Ill.

2d 219 (2004), the Illinois Supreme Court was faced with determining whether a facility was a

recycling center or a pollution control facility. In construing the definitional sections

of the Act,

and in finding the facility was the former, the Court stated:

The comparison of API's facility to the statutory definitions for

"recycling center" and "pollution control facility" reinforces this

interpretation. Under the Act, " 'recyclingcenter' means a site or

facility that accepts only segregated, nonhazardous, nonspecial,

homogenous, nonputrescible materials, such as dry paper, glass, cans

or plastics, for subsequent use in the secondary materials market." 415

ILCS 5/3.375 (West 2002).

By contrast, a "pollution control facility" is "any waste storage site,

sanitary landfill, waste disposal site, waste transfer station, waste

treatment facility, or waste incinerator. This includes sewers, sewage

treatment plants, and any other facilities owned or operated

by sanitary

districts organized under the Metropolitan Water Reclamation District

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *

PCB Case No. 08-25 Public Comment

PFATW and HOI Sierra Club

Page 5

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Act." 415 ILCS 5/3.330 (West 2002). The aim of AFI was not to store,

landfill, dispose, transfer, treat, or incinerate waste. Rather, AFI shreds

the plastic materials that have already been "triple rinsed"

by Tri-

Rinse, Inc., and sells the chips to Illinois Power. While AFI's facility

does not neatly fit into the category

of "recycling center" because it

does more than simply "accept" materials, AFI's facility retained more

characteristics

of a "recycling center" than a "pollution control

facility," chiefly because it handles "materials" rather than "waste."

Alternate Fuels,

215 Ill. 2d at 240-41.

In the instant case, PDC's current operations and contemplated operations

of the proposed

Residual Waste Landfill retain more characteristics of a pollution control facility than a generator,

chiefly because PDC handles and treats the waste of others rather than generating it. PDC's

proposed Residual Waste Landfill would only accept waste "treated"

by PDC in its waste

stabilization facility. In this context, PDC

changes

the character of the waste (415 ILCS 5/3.505), it

does not

produce

waste (415 ILCS 5/3.205). That PDC increases the mass of the waste in the

treatment process does not alter the analysis - the sole purpose for adding reagents is to get it so it

can be disposed

of in the landfill, not to produce a new product for some other beneficial use or for

sale. In fact, in the Stipulated Statement

of Facts, Joint Exhibit 1, Paragraphs 21 through 35 are

dedicated to the "treatment" performed

by PDC in its Waste Stabilization Facility. The word

"treatment" or its equivalent is used multiple times in these paragraphs. Unlike AFI in

Alternate

Fuels,

the ultimate aim of PDC is to store, landfill and dispose of waste; PDC does not sell the

waste treated in its Waste Stabilization Facility to any entity. See statement of Ron Edwards of

PDC, ROI411).

PDC attempts to bootstrap the modified definition

of generator from Section 39(h) of

the Act in an attempt to escape application of the "pollution control facility" definition. Section

39(h), regarding waste stream authorizations, states in pertinent part: "For purposes

of this

subsection (h), the term "generator" has the meaning given in Section 3.205

of this Act,

unless: (1)

the hazardous waste is treated, incinerated, or partially recycled for reuse prior to disposal, in which

case

the last person who treats,

incinerates, or partially recycles the hazardous waste prior to

disposal is the generator; ... " 415 ILCS 5/39(h)(emphasis added). The "last to treat" exception

under Section 39(h) is self-limiting and applies for purposes

of subsection (h) only. 415ILCS

5/39(h). According it its plain and ordinary meaning without departing from its plain language

dictates the "last to treat" exception applies only to Section 39(h), and not as a part

of Section 39(c)

or Section 3.330. See

Town

Country,

225 Il12d at 117;

Alternate Fuels, Inc.,

215 Ill. 2d at 238.

Bootstrapping the "last to treat" carve-out contained in Section 39(h) back into the main definition

of "generator" under the Act renders the carve-out meaningless. Had the General Assembly wanted

the definition

of"generator" to include the "last to treat" concept, it would have put that language in

Section 3.205 itself, and thereby not have relegated it to specific waste stream authorizations (as it

did in Section 39(h)).

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *

PCB Case No. 08-25 Public Comment

PFATW and HOI Sierra Club

Page60f6

In addition, there would be no limit to what PDC (or any similar operator) could do should

PDC's interpretation

of generator be found controlling. Such an interpretation would open the door

for anything that came out

of the Waste Stabilization Facility, not just the specific waste stream

contemplated by PDC in its modification request. For example, dusty non-hazardous MGP

remediation waste could be "treated" in the Waste Stabilization Facility by getting it wet, and

thereby making it "safer for transport" to the landfill. Under its interpretation, PDC would be the

last to treat the MGP waste and would deem itself to be the generator

of MGP remediation waste

and could dispose

of as much as it wanted at its Residual Waste Landfill immune from the

jurisdiction

of the local siting authority. Likewise, liquid waste (hazardous and non-hazardous)

could be solidified in the Waste Stabilization Facility such that PDC would be the last to treat. (In

fact, this is exactly what PDC proposes to do; see Joint Exhibit

1, Para. 32-35). Both examples

show the absurdity

of PDC's position when it is taken to its logical extremes. It is conceivable that

100%

of the types of waste PDC Landfill No. 1 takes in could and would still be taken in and

disposed

of in the proposed Residual Waste Landfill - all PDC would have to do is some form of

minimal "treatment" in its Waste Stabilization Facility. Such a result could not be intended by the

General Assembly and would create a loophole in the environmental regulatory regime.

See

People ex. reI. Madigan v. Dixon-Marquette Cement, Inc.,

343 Ill. App. 3d 163, 173-74 796 N.E.2d

205, 212, 277 Ill. Dec. 490 (2003). Even more absurd is the fact that PDC attempted to get away

with it in the face

of the siting denial by the local siting authority, the Peoria County Board.

For these reasons and the others set forth herein, the decision

of the IEPA to deny the

modification request should be affirmed. Thank you for your consideration.

Very truly yours,

Peoria Families Against Toxic Waste and Sierra Club,

Heart

of Illinois Group

By, HASSELBERG, WILLIAMS, GREBE,

;NODGRA~&~~

David L. Wentworth II

DLW/smh

W:\DL\V\Land

Use~Zoning\PDC

Landfill\Class 3 l\1od\PUBLIC COl\11\1ENT PCB 08-25 12012007.doc

Electronic Filing: Received, Clerk's Office, December 3, 2007 * * PC #7 * *