BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROCHELLE WASTE DISPOSAL, L.L.C.,

Petitioner,

THE CITY OF ROCHELLE,

ILLINOIS

MUNICIPAL CORPORATION and

THE

ROCHELLE CITY COUNCIL,

Respondents.

)

PCB No. 07-113

NOTICE OF FILING

TO:

All Counsel of Record (see attached Service List)

PLEASE TAKE NOTICE that on December 4,2007, the undersigned filed with the

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

and nine copies

of its Petition's Amended Motion for Partial Summary Judgment, copies of

which

are

attached hereto.

Dated:

December 4, 2007

Charles

F. Heisten

Hinshaw

Culbertson LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully submitted,

ROCHELLE WASTE DISPOSAL, L.L.C.

Charles

F. Helsten

One

of Its Attorneys

70545409v1 871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD

ROCHELLE WASTE DISPOSAL, L.L.C.,

)

Petitione~

)

CITY OF ROCHELLE, an ILLINOIS

)

MUNICIPAL CORPORATION and THE

)

ROCHELLE CITY COUNCIL,

)

Respondents.

)

PCB 07-113

PETITIONER'SAMENDED MOTION

FOR PARTIAL SUMMARY JUDGMENT

Petitioner Rochelle Waste Disposal, L.L.C., files this Amended Motion for Partial

Summary Judgment ("Amended Motion"), in order to clarify the relief sought and the

grounds therefor in the Motion for Partial Summary Judgment ("Original Motion")

provisionally filed herein, and in support

of this Amended Motion, states as follows:

I. INTRODUCTION

1. In its Petition for Review, Petitioner challenged eight (8) special conditions

imposed by the Rochelle City Council in its grant of siting approval, and requested that the

illinois Pollution Control Board refuse to affinn those conditions and strike them from any

grant

of siting approval. Alternatively, Petitioner requested the Board to grant "such other

and further relief as this Honorable Board deems appropriate

the circumstances".

its initial brief, Petitioner set forth its arguments for striking the challenged

conditions. Petitioner believes that those arguments are well taken, and that the challenged

conditions, as imposed, are not supported

by the record, Petitioner also believes that no

factual dispute exists with respect to record as

it relates to Conditions 13,22,23,33 and 34

("Subject Conditions"). More particularly, the undisputed evidence supports the

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

modification ofConditions 13,23,33 and 34 in the manner set forth herein, and the deletion

ofCondition 22.

The purpose ofthis Amended Motion is to facilitate the disposition ofthis appeal by

providing the Board with the legal and factual bases for revising the Subject Conditions to

comport with the undisputed evidence

this matter. Petitioner represents to the Board that

the granting

ofthis Amended Motion would entirely dispose ofthis appeal.

3. Upon review, Petitioner believes its Original Motion and Memorandum do not

clearly set forth that the purpose

ofthe Original Motion is to obtain Summary Judgment

which modifies the Subject Conditions to be consistent with and comport with the undisputed

record, and do not succinctly set forth the analyses and arguments made in support the

modification

ofthe Subject Conditions to comport with the undisputed record. Accordingly,

Petitioner withdraws its Original Motion and Memorandum, and submits this Amended

Motion in lieu thereof.

TI. STANDARDS

4. The applicable standard for granting a Motion for Summary Judgment is

well-established. The lllinois Supreme Court in

Chatham Foot Specialists. P.e.

Healthcare Services Corporation.

216 ID.2d 366 at 376,837 N.E.2d 48 at 49 (2000), stated:

"A Motion for Summary Judgment is properly granted when

the pleadings, depositions, admissions, and Affidavits on file

establish that no genuine issue of material fact exists and,

therefore, the moving party is entitled

to judgment as a matter

oflaw."

Under the standard enunciated

by the TIlinois Supreme Court and as is similarly set

forth at Section 101.516

ofthe Pollution Control Board Rules, this case is clearly

appropriate for summaryjudgment.

70545369v2 871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

5. In an

appe~l

seeking review ofconditions imposed upon an applicant seeking

siting approval, the Petitioner bears the burden

ofproving that the Application as submitted,

without the conditions, would not violate the Act

or the Board'sregulations.

Browning-Ferris

Industries ofll/., Inc. v. PCB,

179 lll.App.3d 598,607,534 N.E.2d 616 (2

Dist. 1989);

Jersey Sanitation Corp.

IEPA,

PCB-00-082 at 6 (June 21,2001). A condition that is

not necessary to accomplish the purposes

ofthe Act or Board regulations is arbitrary and

unnecessary and must

be deleted.

Jersey Sanitation,

at 4-5. When considering whether a

condition is necessary to accomplish the purpose

ofa Section 39.2(a) siting criterion, the

Board must determine whether the local government'sdecision to impose the condition is

against the manifest weight

of the evidence.

Waste Mgmt. ofll/. v. Will Co. Rd.,

PCB 99-

141 at 3 (Sept. 9, 1999),

affirmed, Will Co. Bd.

Rl. PCB,

319 TIl. App.3d 545 (3

Dist.

2001).

DI. ARGUMENT

6. CONDITION 13. Condition 13, as imposed, requires the Operator (Petitioner) to

exhume the waste in Unit 1

"in

no event later than 6 years from the date an IEPA permit is

issued for the expansion, except as otherwise provided by the City Council for good cause

shown." The six-year period was not established by any evidence in the record. However,

there was ample support for a ten-year period. Accordingly, Petitioner seeks a partial

summary judgment finding that the undisputed evidence in the record supports the imposition

ofthe following modified Condition 13:

"13. The Operator shall complete the exhumation and relocation ofthe waste from

Unit

as soon as practicable, but in no event later than ten (10) years from the date an IEPA

permit is issued

for the expansion, except as otherwise provided by the City Councilfor good

cause shown.

The waste exhumation and redisposal shall be restricted to the months of

November, December, January, February and March unless it is demonstrated to the City

Council that the process can occur

in other months without off-site odor migration or other

impacts associated with the process."

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

Discussion. In Section 2.6 oftbe City'sApplication for Siting Approval (pages 2.6-

24 through 28), Shaw Environmental discussed the proposed exhumation

at length. The

Application sets forth plans and procedures for the exhumation, including

the equipment to

be used, the method of excavation and cover, the proposed hours and times ofthe year when

exhumation would occur, the nature and quantity ofcover used, procedures to be used in the

event hazardous waste is encountered, the air monitoring program. that would be required to

avoid dangers from explosive gases and VOCs, stonnwater management requirements during

exhumation,

and additional safety procedures

be implemented and safety equipment to be

utilized during exhumation.

Taking into account

what is presently known about Unit I, and the additional

requirements that the Application would impose, Shaw Environmental concluded that "[i]t is

anticipated that relocation

ofUnit 1 will be performed over a 5-10 year period."

(Application, Section 2.6, page 2.6-24).

The only witness who testified concerning the timing ofthe exhumation was Devin

Moose

ofShaw Environmental. Mr. Moose's testimony on this point, in answer to questions

from the City Council'sattorney, is clear

and direct. He describes the sequencing ofthe

exhumation

and concludes that ''we think that that'sgoing to take on the order of about 10

years to achieve

that." (Jan. 25 Tr. at 321-23).

The Shaw analysis ofthe detailed requirements of exhumation, and the anticipated

time reasonably necessary to complete that task, is the

only competent and reliable evidence

in the record addressing

those issues. To the extent that public comment may have requested

the City Council to impose a finn deadline shorter than

Shaw's anticipated time period, such

comments were

not based on relevant and reliable information. Accordingly, Condition 13,

insofar as it requires completion

ofthe exhumation within six years, is not supported by the

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

record. However, Petitioner submits that a similar condition requiring exhumation within ten

years, as set forth above, would clearly

not only be supported by the record, but was

established

by the undisputed evidence. Accordingly, the Board should grant summary

judgment with respect to Condition 13, as so modified.

CONDITION 22. Condition 22 imposes a requirement of operational screening

benns ofbetween six feet and eight feet in height. This is in addition to perimeter benns

required by Condition 23, discussed below.

In this instance, the record is simply devoid

of any evidence supporting this

condition.

The Application does not require operational screening benns and no witness

testified that operational screening

benns were necessary. Accordingly, summaryjudgment

should

be granted striking this condition in its entirety.

8. CONDITION 23. Condition 23 imposed a requirement for perimeter benns at

least

14 feet in height. The need for 14-foot perimeter benns was not established by any

evidence in the record. However, there was ample evidence to support a requirement of

undulating berms 8 to 10 feet in height, with plant material on top ofthe berms which would

include trees a minimum

of 6 feet in height. Accordingly, Petitioner seeks a partial summary

judgment finding that the undisputed evidence in the record supports the imposition of the

following modified Condition 23 (deletions shown

by strikethrough; insertions by underline):

"23. Perimeter berms shall be built in advance of the cells in order to screen

operations to a reasonable extent. It is recommended to require the berms

to be built at least

500

fiet in advance of the Eastern-most edge of the cell being constructed.

way of

example, prior to completion of Cell

's liner, the Southern berm along Creston Road shall

constrocted from E 4,200 to E6, 500, which extends approximately 600 feet East of the

cell.

The vegetation shalf be established (with at least a one-year growing period) prior to

waste being placed within 400 feet

ofa cell with active waste placement. The berm shall be

an undulating berm at least

to 10

fiet in height, with plant material on top ofthe berm in

accordance with the landscape plan

in the application, including without limitation plant

material in excess

ofsix feet in height, placed between the waste footprint and Creston Road,

and located between E 4,500 and E 7,500".

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

Discussion. The Application (Section 3.1, sheets 5 and 6; Table 2.1-1) set forth a

comprehensive plan for landscaping, including a perimeter benn at least eight feet in height,

with plantings on top ofthe berm which include trees a minimum ofsix feet in height, and in

many instances extending much higher.

The testimony

of Chris Lannert, Applicant'sland use planner, was that a perimeter

benn with a minimum height of eight feet would be sufficient. (Jan. 22 Tr. at 92, 100, and

153). There was no testimony or other evidence that the berm needed to be 14 feet in height.

There was ample evidence to support a requirement

of an eight to ten foot high berm, with

plantings in accordance with the landscape plan.

CONDITIONS 33 AND 34. Conditions 33 and 34 imposed a requirement that

Mulford Road be improved to a design weight limit 0[80,000 pounds between Illinois Route

38 and Creston Road (approximately one mile), and that the Operator

bear all the cost ofthe

improvements from Route 38 to the new landfill entrance, and a portion ofthe costs ofthe

improvements from the new landfill entrance

Creston Road, proportionate to the

anticipated traffic attributable to the expanded facility, as determined by a traffic study.

This allocation

of costs to the Operator was not supported by any evidence in the

record. However, there was ample evidence in the record to support a condition that the costs

ofimproving Mulford Road between Route 38 and Creston Road should be allocated

between the Operator and the City on an equitable basis to

be agreed upon between them and

incorporated in the Host Agreement (Jan.

23 Tr. at 21-35). Accordingly, Petitioner seeks a

partial summary judgment finding that the undisputed evidence in the record supports the

imposition

ofthe following modified Condition 33 and 34 (deletions shown by strikethrough;

insertions

by underline):

"33. Thefollowing roadway improvements shall be made to Mulford Road prior to

acceptance

ofwaste within the expandedfacility wastefootprint:

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

The reconstruction of Mulford Road between Route

and the

existing landfill entrance shall be designed to a rural standard with a

dustfree, all weather surface, prOVide a design weight limit

of80, 000

pounds

and shall be at least two lanes wide.

34. The improvements to Mulford Road as described in special condition

above

shall be completedfrom the existing landfill entrance to Creston

Road no later than

the date on which the proposed new entrance

for the expansion is built and

completed as required in Special Condition

16.

The costs ofimprovements to

Mulford Road shall be allocated between the Operator and the City on an equitable

basis to be agreed upon between them

and incorporated in the Host Agreement.

Discussion. The Application provided that, as part ofthe expansion ofthe landfill,

Mulford Road would

be reconstructed and upgraded to a two-lane road with a weight limit of

80,000 pounds from IL 38 to just south ofthe access drive. No mention was made ofwho

would bear the cost

ofthese improvements, and no mention was made of any improvements

south

ofthe access drive (which was to be relocated from its present location farther south).

The Host Agreement between the City and the Operator is silent as

tathe reconstruction and

upgrading ofMulford Road, or the allocation ofcosts for such improvements.

Applicant'straffic expert, Michael Werthmann, testified

with respect to the

contemplated improvements to Mulford Road, but specifically testified that

he did not know

who would

be paying the costs ofthe improvement (Jan. 23 Tr. at 110-111).

What is clear,

and essentially undisputed, from the record is that the costs of

upgrading Mulford Road will likely benefit both the Operator and the City, and perhaps other

adjacent landowners as well,

but no agreement had been reached, and no evidence presented,

as to how the costs should

be allocated. The record therefore amply supports a condition that

requires the allocation to be made on an equitable

basis. but does not support the specific

allocation

ofessentially all (or nearly all) ofthe costs to the Operator.

WHEREFORE, Petitioner, Rochelle Waste Disposal, L. L. C., respectfully requests

that this Board, pursuant to

35111. Adm. Code 101.516, grant Summary Judgment on

Conditions

13,22,23,33, and 34, in accordance with this Amended Motion.

70545369v2871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

Dated: December 4, 2007.

Charles F. Heisten

Hinshaw

Culbertson LLP

100 Park Avenue

P. O. Box 1389

Rockford, IL

61105~1389

815-490-4900

Respectfully submitted,

ROCHELLE WASTE DISPOSAL, L.L.C.

By:

s/Charles F. Helsten

Charles F. Heisten

One ofIts Attorneys

70545369v2 871956

Electronic Filing: Received, Clerk's Office, December 4, 2007

AFFIDAVIT OF SERVICE

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

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

certifies that on December 4,2007, she served a copy ofthe foregoing upon:

Hon. John McCarthy

Donald J. Moran

45 East Side Square, Suite 301

Pedersen

& Houpt

Canton,

IL 61520

161

Clark St., Suite 3100

jmccarthy@winco.net

Chicago,IL 60601-3142

dmoran@pedersenhoupt.com

Glenn Sechen, Esq.

David Tess, Esq.

Schain Burney Ross & Citron Ltd

Tess

& Redington

222 N. LaSalle St., Suite 1910

1090

N. Seventh St.

Chicago, IL 60601

P.O. Box 68

gsechen@schainlaw.com

Rochelle, IL 61068

dtess@oglecom.com

Alan Cooper, Esq.

Emily Vivian

Attorney at Law

David Wentworth

233 E. Route 38, Ste. 202

Hasselberg, Williams, Grebe, Snodgrass

Birdsall

P.O.

Box 194

125

SW Adams St., Ste. 360

Rochelle,IL 61068

Peoria,IL 61602-1320

cooplaw@rochelle.net

evivian@hwgsb.com

dwentworth@hwgsb.com

Bradley Halloran

Mr. Bruce W. McKinney

lllinois Pollution Control Board

Rochelle City Clerk

100 West Randolph Street

Rochelle

CiZ Hall

Suite 11-500

420 North 6 Street

Chicago, IL 60601

Rochelle,

IL 61068

hallorab@ipcb.state.il.us

bmckinney@roche11e.net

via electronic mail before the hour

of5:00 p.m., at the addresses listed above.

Joan Lane

HINSHAW

CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Elockford,IL 61105-1389

(815) 490-4900

70534100vl 871956

Electronic Filing: Received, Clerk's Office, December 4, 2007