BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C.,
Petitioner,
v.
THE CITY OF ROCHELLE,
an
ILLINOIS
MUNICIP
AL CORPORATION and THE
ROCHELLE CITY COUNCIL,
Respondents.
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PCB No. 07-113
NOTICE OF FILING
TO:
All Counsel ofRecord (see attached Service List)
PLEASE TAKE NOTICE
that on December 17, 2007, the undersigned filed
electronically
with the Illinois Pollution Control Board, 100 West Randolph Street, Chicago,
Illinois 60601, the Petitioner Rochelle Waste Disposal's
Reply Brief, a copy of which is attached
hereto.
Dated:
December 17,
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.
stCharles F. Helsten
Charles F. Heisten
One
ofIts Attorneys
70532569vl 871956
Electronic Filing - Receivd, Clerk's Office, December 17, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C.,
PCB No. 07-113
Petitioner,
Respondents.
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THE CITY OF ROCHELLE, an ILLINOIS )
MUNICIPAL CORPORATION and the )
ROCHELLE CITY
COUNCIL,
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v.
PETITIONER ROCHELLE WASTE DISPOSAL'SREPLY BRIEF
NOW COMES the Petitioner, Rochelle Waste Disposal, L.L.C. (''RWD''),by and
through its attorneys, and
in
reply to the briefs filed by the City of Rochelle and the City Council,
and the amicus
brief filed by Concerned Citizens of Ogle County, states as follows:
I.
INTRODUCTION
This appeal concerns Special Conditions imposed by the Rochelle City Council, pursuant
to its grant
of approval for an Application filed by the City of Rochelle regarding a proposed
landfill expansion.
On or about April 11,2007, the City Council passed Resolution R07-10, in
which the City Council approved the Application but imposed thirty-seven (37) Special
Conditions. This appeal followed.
In
its opening brief, the Petitioner, Rochelle Waste Disposal (''RWD'')presented well-
founded and supported arguments for striking the challenged Special Conditions (numbers 8, 13,
22, 23, 26,28, 33 and 34) based
on the lack of record support, and further based on the fact that
the challenged conditions are not necessary to meet the requirements
of Section 39.2 of the
Environmental Protection Act.
In
its Response brief, the City acknowledges that the record does not support any of the
challenged conditions, and agrees that they should accordingly be stricken. City's Response
Briefat 1.
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Electronic Filing - Receivd, Clerk's Office, December 17, 2007
The City Council, in its brief, concurs that Special Condition 22 should be stricken. City
Council's Brief at
2. The City Council also acknowledges that as originally drafted, Special
Conditions
13, 23, 33, and 34 lack support
in
the record.
Id.
The City Council accordingly
proffers modifications to the conditions for which the City Council cites at least minimal support
in the record.
Id.
The City Council'sbrief concedes that if the Board finds
it
lacks authority to
modify the conditions, then Conditions 13, 22, 23, 33, and 34 should be stricken because, as
originally written, they lack support in the record.
Id.
at 15.
II.
ALL PARTIES AGREE SPECIAL CONDITION 22 SHOULD BE STRICKEN
m its Opening Brief, RWD argued that Condition 22, which requires construction of
operational screening berms along the edges of operating cells at the landfill, was improper
because:
(l) there is no evidence in the record to establish that such berms are reasonable and
necessary; (2) the benns would disrupt operations; and (3) the evidence shows that such berms
would be ineffective for their intended purpose.
In
its Response brief, the City concurs that there is no support in the record for Special
Condition 22, and the City reiterates that the evidence established that the proposed benns would
be ineffective; the City accordingly agrees that Special Condition 22 should be stricken. City's
Briefat 8-9.
The City Council also concurs that Special Condition 22 enjoys no support in the record,
and agrees that this condition should be "stricken
in
its entirety." City Council'sbrief at 12.
masmuch as the Petitioner and both of the Respondents agree that Special Condition 22
enjoys no support in the record and should be stricken, the Board should strike this condition in
its entirety.
In. THE CITY COUNCIL'S PROPOSED MODIFICATIONS
TO SPECIAL CONDITIONS 13, 23, 33, AND 34
A.
Special Condition 13 - Exhumation period
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The City, as previously noted, concedes in its brief that Special Condition 13 is not
supported by the record and should be stricken. City's Brief at 1.
The City Council concedes
in
its brief that the only credible evidence on the issue of the
timing
of the exhumation process was testimony by Devin Moose, who testified that exhumation
would take on the order of "about 10 years:' City Council's Brief at 10. The Council further
noted that public comment in which objectors urged an abbreviated timetable for the exhumation
process
"was not based on reliable information."
Jd.
For this reason, the City Council now proposes that Condition 13 be amended to require
that exhumation be completed as soon as practicable, but,
in
any event, in no more than ten (10)
years from the date an IEPA permit is issued for the expansion, except for good cause shown.
City Council'sbrief
at 10, 14.
RWD concludes that the proposed modifications to Condition 13 which are set forth on
page 14 of the City Council's brief would alter the condition such that it would thereby enjoy at
least minimal support in the record. Because the City has conceded that there is no support in
the record for Special Condition 13, and because the City Council
has
proposed modifications
which are supported, at least minimally,
by the evidence in the record, the Board should adopt
the amendment to Special Condition 13 which is proposed by the City Council at page 14 of its
Response brief.
B.
Condition 23 -14 Foot Perimeter Berm
As previously noted, the City concedes that there is no support for Condition 23 in the
record. City's Brief at
1.
For its part, the City Council concedes in its brief that "[n]o witnesses testified and no
other evidence was introduced that operational screening berms,
or a fourteen-foot perimeter
berm, were necessary." City Council'sbriefat 11.
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The City Council does, however, provide minimal record support for a proposed
amendment to Condition 23, citing testimony concerning the construction of an undulating
perimeter berm of eight (8) to (10) feet
in
height, with plant material, including trees no less than
six feet
in
height, on top of the benn.
Id.
at 12. Page 14 of the City Council's brief proposes a
modification for Special Condition 23 which would reflect the testimony referenced above, and
which would therefore have at least minimal support in the record.
Because the City has conceded that there is no support
in the record for Special Condition
23, and because the City Council has proposed modifications which are supported, at least
minimally,
by the evidence in the record, the Board should adopt the amendment to Special
Condition 23 which is proposed by the City Council at page 14 ofits Response brief.
C.
Conditions 33 and 34 - Road Improvements
The City's brief concedes there is no support in the record for Conditions 33 and 34 as
drafted. City's
Brief at 1.
The City Council acknowledges that the sole witness who testified concerning roadway
improvements was Mr. Michael Wethmann, who provided testimony concerning the necessity
of
the Application'sproposal to improve Mulford Road, and the reconstruction of Mulford Road as
a two-lane road with an SO,OOO-pound weigh limit. City Council'sbrief at 13. The City Council
further acknowledges there was no testimony
or evidence to support the conclusion that the
entire cost of such road improvements should be borne by RWD.
Id.
Accordingly, the Council proposes modifications to these conditions which would reflect
that the cost of improvements will not be borne by the Operator alone, but instead be allocated
between the Operator (RWD) and the City
"on an equitable basis to be agreed upon between
them and incorporated
in the Host Agreement." City Council's brief at 14. RWD believes the
proposed modifications to Special Conditions 33 and 34 are consistent with the record in the
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Electronic Filing - Receivd, Clerk's Office, December 17, 2007
case. Because the City has conceded that there is no support in the record for Special Conditions
33 and 34, and because the City Council
has
proposed modifications which are consistent with
the evidence in the record, the Board should adopt the amendments
to
Special Conditions 33 and
34 which are proposed
by the City Council at page 14 ofits Response brief.
IV.
eeoc's
BRIEF
The
amicus
brief filed by Concerned Citizens of Ogle County ("CCOC"), an objector
group in the proceedings below, consists almost entirely of an exaggerated portrayal ofRWD's
operating history, and a legally unsound argument that consequently derives from that
exaggeration. Notably, CCOC chose to withdraw from this appeal (knowing full well at that
time the position RWD had taken in its Motion to Reconsider, as well as the City'S position in
response thereto), and to limit its participation going forward to submitting only an
amicus
brief.
Although it is unnecessary to address the unsubstantiated arguments raised in the amicus brief,
RWD provides a
brief response in an effort to correct at least some of the exaggerations and
misrepresentations that appear in
CCOC'sbrief.
As an example, CCOC erroneously claims that RWD's engineering manager, Tom
Hilbert, "failed to incorporate all of [the Operator's] violations" in the Application's summary of
violations, however Hilbert testified that he compared his summary (Application, Vol. 2, Sec. 20,
Table 10-1) with the sunnnary prepared by Mr. Rypkema (Operator's Exhibit 2), and that every
violation notice included in Mr. Rypkema's summary was also included
in
Mr. Hilbert's
summary. (Tr. Feb.
8, 2007, p. 137). A review of the two documents confrrms the accuracy of
Mr. Hilbert'stestimony.
CCOC also accuses RWD of,
''byoversight or deliberate omission," having "omitted the
second sentence
of criterion (ix)." CCOC's brief at 4. However, the language which CCOC
asserts is a part of criterion (ix), relating to consideration of the operator'spast operating history,
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Electronic Filing - Receivd, Clerk's Office, December 17, 2007
is what is often referred to as "criterion (x)" and is not a part of criterion (ix) at all. Thus, RWD,
in listing the nine criteria in its brief, did not "deliberately omit" part of criterion (ix).
More importantly, although eeoe asserts that there was udirect, conflicting evidence"
concerning each of the challenged condition (eeOe Brief, pp. 3-4), eeoe fails to include any
record cites whatsoever to this supposed "evidence". Instead, eeoe falls repeatedly back on the
Petitioner's "less
than
ideal" operating record, apparently urging, without citation to any
authority, that a record of past violations dispenses with the well-established requirement that a
condition to siting approval be supported by evidence in the record.
With respect to specific conditions discussed in its brief, eeoe's argument regarding
Condition 13 is fatally flawed. ceoe argues that because testimony at the hearing established
that the exhumation could require five to ten years to complete, that there is record support for
mandating that exhumation be completed in six years. Arbitrarily imposing a six-year deadline
in Condition 13, however, ignores that portion of the estimate which projected it could take up to
ten years to complete the project. In addition, ccoe argues that Condition 13 is reasonable
because it provides that the City Council can grant an extension if necessary, however this
argwnent ignores the fact that no standard is provided, and the City Council therefore has
unfettered discretion to decide whether to grant the extension. CCOC's argument that once the
exhumation begins, the Petitioner will know exactly how long exhumation will take ignores the
fact that the Petitioner cannot know the depth of the waste OT the nature of what will be found
until the project is complete.
With respect to Conditions 22 and 23, ecoc asserts that the decision to require a 14-foot
perimeter berm is justified based on allegedly conflicting testimony and the Petitioner's
operating history. eeoc'sclaim of conflicting testimony is, again, totally unsupported by the
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Electronic Filing - Receivd, Clerk's Office, December 17, 2007
record, and as noted above, CCOC's exaggerated allegations concerning the operator's history
do not obviate the need for a condition to find support
in the record.
As to Conditions 33 and 34,
eeoc makes a number of allegations regarding evidence,
but once again conveniently fails to include any citations whatsoever to the record to support
those allegations. As the City Council noted
in
its brief, the undisputed testimony of Michael
Wertlunan, the only traffic expert to testify, was that the expansion of the landfill is a
continuation
of existing operations and most of the traffic is already using that road. (City
Council's
Brief at 13, citing Tr. January 23, 2007 at 23-24, 29, 30-31, 34-35). There was no
evidence to the contrary, and there was no testimony concerning an appropriate allocation of
costs.
V.
CONCLUSION
The City of Rochelle, for its part, concedes
in
its brief that all of the challenged Special
Conditions are WlSUpported by the record and should be stricken. In addition, all parties to the
appeal are
in agreement that Special Condition 22 enjoys no support in the record, and should
therefore
be stricken.
The Petitioner, RWD, believes that the modifications proposed
by the City Council with
respect to Conditions 13,22,23,33 and 34 are supported by the evidence and, if affirmed by the
Board
as so modified,
would be proper. In the event the Board sees fit to modify these conditions
in the manner proposed by the City Council, or, in the alternative, to strike them, the Petitioner is
prepared to withdraw its appeal with respect to Conditions
8,26 and 28.
WHEREFORE, the Petitioner respectfully requests that this Board strike Special
Condition 22, modify Conditions 13,22,23,33, and 34 to conform with the proposals proffered
by the City Council in its brief at p. 14, and grant such other reliefas it deems appropriate.
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7Q5462Q9v1 871956
Electronic Filing - Receivd, Clerk's Office, December 17, 2007
Dated: December 17,2007
Charles F. Helsten
Hinshaw
& Culbertson LLP
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
ROCHELLE WASTE DISPOSAL
By:
sf
Charles F. Helsten
Charles F. Heisten
One
of Its Attorneys
This do(ument utilized 100% re&:yded paper products.
8
70546209vl 871956
Electronic Filing - Receivd, Clerk's Office, December 17, 2007
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty of peIjury under the laws of the United States of America,
certifies that
on December 17, 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 N. Clark St., Suite 3100
ijmccarthy@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 II
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
Citl
Hall
Suite 11-500
420 North 6
t
Street
Chicago, IL 60601
Rochelle, IL 61068
hallorab@ipcb.state.it.us
bmckinney@rochelle.net
via electronic mail before the hour
of 5:00 p.m., at the addresses listed above.
/sJoanLane
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, TIL 61105-1389
(815) 490-4900
This document utilized l00tto recycled paper products.
70532569vl 871956
Electronic Filing - Receivd, Clerk's Office, December 17, 2007
