| - PROCEDURAL HISTORY
- FACTUAL BACKGROUND
- Site Location
- The Application
- Siting Procedures
- Host Agreement
- Siting Criteria
- RWD’s Operating History
- STATUTORY BACKGROUND
- BURDEN OF PROOF AND STANDARD OF REVIEW
- SECTION 39.2 CRITERIA
- RWD’s General Arguments
- Location. RWD claims that its application shows that land use in the area surrounding its proposed expansion is primarily agricultural and planted with row crops. RWD Brief at 8, citing C-1 at 2.2-3. RWD argues that its application demonstrates that “[t]he nearest airport to the proposed expansion is a municipal airport that is over 10,000 feet from the site.” RWD Brief at 8, citing C-1 at 2.1-4; see 49 U.S.C. 44718(d) (limiting construction of landfills), 35 Ill. Adm. Code 814.302(c) (providing airport safety requirements); C-2 at Appendix F.1 (Airports). RWD further claims that its application shows that “[t]he proposed expansion will be located more than 500 feet from all occupied dwellings, schools, retirement homes, hospitals, or like institutions unless written permission for a closer distance from the owner is provided prior to permit approval.” RWD Brief at 9-10, citing C-1 at 2.1-14; see 35 Ill. Adm. Code 811.302(d), 814.302(a). RWD also states that its application shows that the proposed expansion will be screened from view along specified roads “by a vegetated earthen berm or fence with a total height of no less than eight feet.” RWD Brief at 9, citing C-1 at 2.1-13; see 35 Ill. Adm. Code 811.302(c).
- Geology and Hydrogeology. RWD states that its application includes an analysis of the site’s geology and hydrogeology based upon “a total of 73 continuously sampled boring locations, and installation of 66 monitoring wells.” RWD Brief at 10, citing C-1 at 2.2-1 et seq. (Hydrogeologic Analysis); see C-20 at 206 (Drommerhausen testimony); see also C-3 at Appendix G.1 (Boring Logs); C-3 at Appendix G.2 (As-Built Diagrams). RWD argues that its application shows that its site “features a low-permeability cohesive soil (Tiskilwa Formation) which is present across the site and which will separate the proposed landfill from the uppermost aquifer.” RWD Brief at 10, citing C-1 at 2.2-1 et seq. RWD further argues that its application shows that “[t]he average thickness of the clay between the base of the liner and the uppermost aquifer is approximately 23.5 feet across the expansion area.” RWD Brief at 10, citing C-1 at 2.2-47. RWD claims that its geologic and hydrogeologic analyses demonstrate that “this soil will effectively restrict vertical and horizontal movement of groundwater.” RWD Brief at 10, citing C-1 at 2.2-47.
- Water Safety. RWD claims that its application shows that “[t]he expansion area is not located within the FEMA [Federal Emergency Management Agency] 100-year floodplain.” RWD Brief at 8, citing C-1 at 2.1-5; see 415 ILCS 5/39.2(a)(iv) (2006), 35 Ill. Adm. Code 811.102(b), C-2 at Appendix F.2 (Floodplain). RWD states that a wetland determination and delineation have been performed for the area of the proposed expansion. RWD Brief at 8, citing C-1 at 2.1-6. RWD further states that “the expansion has been designed and located to minimize disturbance potential to wetland areas.” RWD Brief at 8, citing C-1 at 2.1-6; see 35 Ill. Adm. Code 811.102(e); C-2 at Appendix F.3 (Wetlands). RWD claims that the record shows that the area of the proposed expansion “does not encompass any rivers designated for protection under the Wild and Scenic Rivers Act.” RWD Brief at 9, citing C-1 at 2.1-9; see 35 Ill. Adm. Code 811.102(a), C-2 at Appendix F.5 (Wild and Scenic Rivers).
- Operating Procedures/Litter Control. RWD claims that its application “establishes that the site will feature a number of operating procedures to minimize and control litter.” RWD Brief at 11, citing C-1 at 2.6-6. First, RWD states that “[i]ncoming refuse vehicles will be required to be fully-enclosed or to have covers or tarps to prevent waste from blowing out of the vehicles.” RWD Brief at 11, citing C-1 at 2.6-6. Second, RWD claims that it will keep the active disposal area as small as possible and will cover it at the end of each day with material such as soil, synthetic covers, and alternate materials as approved by the FDA. RWD Brief at 11, citing C-1 at 2.6-6. Third, RWD indicates that “[t]he entire facility will be surrounded with a perimeter fence and exterior berm to collect litter that may escape beyond the active face.” RWD Brief at 11, citing C-1 at 2.6-6. Fourth, RWD states that it will employ temporary litter fences as additional protection near the active face. RWD Brief at 11, citing C-1 at 2.6-6. Fifth, RWD indicates that it will suspend operations under specified conditions: if sustained winds reach 35 miles per hour, in the event of a tornado warning alert, or if the City determines that the operator has not been or is not able to control blowing litter. RWD Brief at 11, citing C-1 at 2.6-6.
- Expert Testimony. RWD argues that Daniel Drommerhausen and Devin Moose testified as expert witnesses at the public hearing that the proposed expansion complies with the requirements of criterion (ii). RWD Brief at 8. RWD further argues that Mr. Charles Norris, testifying on behalf of the objector CCOC, declined to render an opinion as to whether the application satisfies criterion (ii). Id.
- Drommerhausen Testimony. RWD argues that expert testimony offered by Mr. Daniel Drommerhausen at the local siting hearing demonstrates that the proposed expansion complies with the requirement of criterion (ii) to protect the public health, safety, and welfare. RWD Brief at 8; see C-20 at 198-248 (January 23, 2007 transcript); C-20 at 5-92 (January 24, 2007 transcript). RWD states that “Mr. Drommerhausen is a profession geologist at Shaw Environmental who holds a master’s degree in hydrogeology.” RWD Brief at 12, citing C-20 at 199. RWD notes that Mr. Drommerhausen testified concerning his geologic and hydrogeologic analysis of the site. RWD Brief at 12.
- Moose Testimony. RWD argues that expert testimony offered by Mr. Devin Moose at the local siting hearing demonstrates that the proposed expansion complies with the requirement of criterion (ii) to protect the public health, safety, and welfare. RWD Brief at 8; see C-20 at 123-97 (January 24, 2007 transcript). RWD states that “Mr. Moose is a civil engineer with more than 20 years of experience in landfill design, who is the director of the St. Charles, Illinois office of Shaw Environmental.” RWD Brief at 13; see C-25 at Exhibit 10 (Power Point presentation).
- Norris Testimony. RWD notes that Mr. Charles Norris was retained by and testified on behalf of CCOC. RWD Brief at 14; see C-20 at 251-327 (January 25, 2007 transcript); C-20 at 5-210 (January 26, 2007 transcript). RWD claims that Mr. Norris is not an engineer and that the offered “no opinion concerning the engineered components of the proposed expansion.” RWD Brief at 14, citing C-20 at 255-56, 259 (January 25, 2007 transcript); see also C-25 at CCOC Exh. 5 (Norris resume). RWD argues that, “[m]ost importantly, Mr. Norris testified that he would not render an opinion as to whether the proposed expansion satisfies Criterion (ii).” RWD Brief at 14, citing C-20 at 156 (January 26, 2007 transcript).
- City of Rochelle’s General Arguments
- Rochelle City Council’s General Arguments
- Special Condition 8
- Special Condition 13
- Special Conditions 22 and 23
- Special Condition 26
- Special Condition 28
- Special Conditions 33 and 34
- Previous Operating Experience of RWD
- Special Condition 8
- Special Condition 13
- Special Conditions 22 and 23
- Special Condition 26
- Special Condition 28
- Special Conditions 33 and 34
- RWD’s Reply
- ORDER
|
ILLINOIS POLLUTION CONTROL BOARD
January 24, 2008
ROCHELLE WASTE DISPOSAL, L.L.C.,
Petitioner,
v.
THE CITY OF ROCHELLE, an Illinois
municipal corporation, and THE ROCHELLE
CITY COUNCIL,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
PCB 07-113
(Third-Party Pollution Control Facility
Siting Appeal)
CHARLES F. HELSTEN OF HINSHAW & CULBERTSON, LLP, APPEARED ON
BEHALF OF PETITIONER ROCHELLE WASTE DISPOSAL, L.L.C.;
ALAN H. COOPER APPEARED ON BEHALF OF RESPONDENT THE CITY OF
ROCHELLE; and
DONALD J. MORAN OF PEDERSEN & HOUPT APPEARED ON BEHALF OF
RESPONDENT THE CITY COUNCIL OF THE CITY OF ROCHELLE.
OPINION AND ORDER OF THE BOARD (by A.S. Moore):
On October 16, 2006, the City of Rochelle (City) filed an application with the Rochelle
City Council (City Council) for local siting approval of a proposed expansion of the Rochelle
Municipal Landfill in Rochelle, Ogle County. Rochelle Waste Disposal, L.L.C. (RWD),
operates the existing landfill and, under the term of a host agreement with the City, would
operate an expanded facility. The City Council granted siting approval, subject to a number of
special conditions, on April 11, 2007.
RWD appealed the City Council’s determination to impose eight of the special
conditions. RWD argues that the conditions are not reasonable, supported by the record, or
necessary to accomplish the purposes of Section 39.2 of the Environmental Protection Act (Act)
(415 ILCS 5/39.2 (2006)).
Today, the Board concludes that the City Council’s determination to impose challenged
Special Conditions 8, 13, 22, 23, 26, and 28 is not against the manifest weight of the evidence.
The Board also concludes that Special Conditions 33 and 34 lack support in that record and
modifies those conditions as proposed by the City Council and based on the record, as described
in the opinion below.
Below, the Board first provides the procedural history and the factual background of this
proceeding. The Board then addresses the statutory background, standard of review, and burden
2
of proof. The Board then proceeds to address the special conditions imposed under siting
criterion (ii), relating to protection of public health, safety, and welfare, and criterion (vi),
relating to minimizing the impact on existing traffic flows. The Board reviews the parties’
arguments regarding those conditions before summarizing the
amicus curiae
brief filed by the
Concerned Citizens of Ogle County (CCOC). The Board then discusses the contested issues
before reaching its conclusion.
PROCEDURAL HISTORY
On May 16, 2007, RWD filed a third-party petition for review (Pet.) under Section
40.1(b) of the Act (415 ILCS 5/40.1(b) (2006)). In an order dated June 7, 2007, the Board
accepted RWD’s petition for hearing. In the same order, the Board on its own motion
consolidated this case for hearing with Concerned Citizens of Ogle County v. The City of
Rochelle, the City Council of the City of Rochelle, Illinois, and Rochelle Waste Disposal,
L.L.C., PCB 07-116 (hereinafter PCB 07-116).
On June 26, 2007, the City filed a “Motion for Extension of Time for Filing Record and
for Leave to File Reduced Number of Copies.” In an order dated July 6, 2007, the hearing
officer granted the motion by extending the deadline for filing the record to July 13, 2007, by
allowing the City to file an original and two copies of the record, and by allowing the City to file
an original and one copy of correspondence filed as part of the application.
On July 5, 2007, in PCB 07-116, with which this case had been consolidated, petitioner
CCOC filed a motion to withdraw its petition for review. On the same date, CCOC also filed a
motion for leave to file an
amicus curiae
brief in this proceeding. On July 12, 2007, the Board
granted CCOC’s motion to withdraw its petition for review in PCB 07-116 and closed that
docket. In the same order, the Board granted CCOC’s motion for leave to file an
amicus curiae
brief in this proceeding.
On July 11, 2007, the City filed the administrative record (C-_) in this proceeding.
Board Hearing Officer Bradley P. Halloran conducted a hearing (Tr.) on July 16, 2007 at
the Rochelle Municipal Building. None of the parties offered testimony or exhibits. At hearing,
the Board received oral public comment from Mr. Frank Beardin (Tr. at 7-11), Ms. Janet
Stahlheber (Tr. at 11-14), Ms. Shirley Kersten (Tr. at 14-15), Ms. Ellen Hill (Tr. at 16-17), Mr.
Roger Thuestad (Tr. at 17-19), Mr. Hugh McDermitt (Tr. at 19-21), and Ms. Laronda Thuestad
(Tr. at 22-23).
On July 27, 2007, the Board received a public comment from Mr. Hugh A. McDermitt
(PC 1). On July 30, 2007, the Board received public comments from Ms. Shirley Kersten (PC
2), Ms. Janet Stahlheber (PC 3), and Ms. Ann McDermitt (PC 4). On July 31, 2007, the Board
received public comments from Mr. Frank Beardin (PC 5), Ms. Charlotte Berg (PC 6), and Mr.
Lyle G. Headon (PC 7).
On November 20, 2007, RWD filed a motion for leave to file a motion for partial
summary judgment. On November 21, 2007, RWD filed a supplement to its motion for leave.
3
On November 27, 2007, the Rochelle City Council filed a response voicing no objection to
RWD’s motion for leave. On November 29, 2007, the City of Rochelle also filed a response
voicing no objection to RWD’s motion for leave. On November 30, 2007, RWD filed a motion
for partial summary judgment, accompanied by a memorandum in support of the motion. On
December 4, 2007, RWD filed an amended motion for partial summary judgment. In an order
dated December 6, 2007, the Board denied RWD’s motion for leave to file a motion for partial
summary judgment.
On August 1, 2007, RWD filed its opening brief (RWD Brief). On December 10, 2007,
the Board received three filings: a response brief from the City of Rochelle (City Resp.), a
response brief from the Rochelle City Council (Council Resp.), and the
amicus curiae
brief from
CCOC (CCOC Brief). On December 17, 2007, RWD filed its reply brief (Reply).
FACTUAL BACKGROUND
In this section of the opinion, the Board sets forth the background facts of this case.
Facts pertinent to each argument will be provided in subsequent sections of the opinion.
Site Location
The Rochelle Municipal Landfill #2 is located at 6513 Mulford Road in the City of
Rochelle, Ogle County. C-1 at 2;
see
C-2 at Appendix D.1 (legal description and plat), C-2 at
Appendix D.2 (annexation ordinance). The landfill is owned by the City of Rochelle and began
operation in 1972. C-1 at E-1. Under the terms of a host agreement with the City, RWD has
operated the landfill since 1995.
Id
.;
see
C-2 at Appendix C.1 (host agreement) The landfill
occupies an 80-acre site with a waste footprint of 61.4 acres. C-2 at Appendix A.1. Permitted
capacity at the existing landfill is expected to be exhausted in 2009.
Id
.
The Application
On October 16, 2006, the City, as landfill owner, filed an application for expansion of the
Rochelle Municipal Landfill #2. C-1 at 1;
see also infra
at 6-7 (host agreement). The City
proposes to expand the landfill to 219.874 acres with a waste footprint of 110.741 acres. C-2 at
Appendix A.1 The City proposes to accept into the expanded landfill general municipal waste,
construction and demolition debris, and non-hazardous special waste.
Id
. The City expects a
waste stream of 1,000 tons per day and exhaustion of the expanded capacity after 23.3 years in
2031.
Id
.
Siting Procedures
On October 10, 2006, the City Council adopted Ordinance No. 06-3483 amending
Chapter 78 of the Municipal Code of the City of Rochelle, which addresses pollution control
facilities. C-2 at Appendix A.2 (siting ordinance). On October 16, 2006, the City filed its
application for expansion.
See
C-1 – C-7.
4
The Rochelle City Council issued a “Notice of Public Hearing” with regard to the City’s
application for expansion. C-1650-51. The public hearing began on January 22, 2007, and
continued to January 25, 2007.
See
C-20 (transcripts). The public hearing resumed on February
8, 2007, in order to address RWD’s operating history.
See
C-21 (transcript). At hearing, the
City presented 7 witnesses: Mr. J. Christopher Lannert (C-20 at 85-182 (January 22, 2007
transcript)), Mr. Walter S. Willis (C-20 at 186-200 (January 22, 2007 transcript)), Mr. Gary
DeClark (C-20 at 202-256 (January 22, 2007 transcript)), Ms. Christina Seibert (C-20 at 256-302
(January 22, 2007 transcript)), Mr. Michael A. Werthman (C-20 at 15-181 (January 23, 2007
transcript)), Mr. Daniel Drommerhausen (C-20 at 198-358 (January 23, 2007 transcript), (C-20 at
5-93 (January 24, 2007 transcript)), Mr. Devin Moose (C-20 at 123-366 (January 24, 2007
transcript), (C-20 at 5-220 (January 25, 2007 transcript)). CCOC presented the testimony of one
witness, Mr. Charles Norris. C-20 at 251-327 (January 25, 2007 transcript), C-20 at 5-210
(January 26, 2007 transcript). RWD presented the testimony of one witness, Mr. Thomas
Hilbert. C-21 at 8-168 (February 8, 2007 testimony). In addition, the City presented the
testimony of one rebuttal witness, Mr. Ken Alberts. C-21 at 168-181 (February 8, 2007
testimony).
The City introduced ten hearing exhibits. The City’s application for landfill expansion
comprises its Exhibit 1.
See
C-1 – C-7 (application). Materials regarding the City’s notice of
public hearing comprise its Exhibit 2.
See
C-24 (hearing notices by publication and certified
mail). Power Point presentations by J. Christopher Lannert, Walter S. Willis, Gary DeClerk,
Christina M. Seibert, Michael A Werthmann, Daniel. J. Drommerhausen, and Devin A. Moose
were admitted as the City’s Exhibits 3, 4, 5, 6, 7, 9, and 10, respectively. C-25 at Applicant’s
Exhibits 3-10. Also, a letter from Curtis D. Cook, County Engineer of Ogle County, was
admitted as the City’s Exhibit 8.
Id
.
RWD introduced two hearing exhibits: articles of organization and financial reports as
Operator’s Exhibit 1, and a summary of inspections by the Ogle County Solid Waste
Management Department as Operator’s Exhibit 2. C-25 at Operator’s Exhibits 1-2.
CCOC introduced 7 hearing exhibits. Photogrpahs taken December 17, 2006 comprise
bothe CCOC Exhibit 1 and 1A. C-25 at CCOC Exhibits 1-6 (including Exhibit #1A). CCOC
Exhibit 2 consists of three photographs of a December 9, 2006 truck accident.
Id
. CCOC
Exhibit 3 consists of various photographs of the landfill.
Id
. CCOC Exhibit 4 is a map of the
landfill site showing the points from which photographs were taken.
Id
. CCOC Exhibits 5 and 6
are the resume of Charles H. Norris and his Power Point presentation, respectively.
Id
. The City
Council introduced one hearing exhibit, a study of alternate landfill liner systems. C-25 at City
Council Exhibit 1.
The City Council received oral public comment in the course of the hearing.
See
C-20 at
7-15, 181-97, 324-26 (January 23, 2007 transcript); C-20 at 93-122, 198-99, 255-72, 318-19
(January 24, 2007 transcript); C-20 at 72-110, 231-50, 327-37 (January 25, 2007 transcript); C-
21 at 184-204, 275-77 (February 8, 2007 transcript);
see also
C-1648-49 “Public Comment Sign-
Up Sheet”).
5
In addition, the City received written comments 30 days after the conclusion of the
hearing, until March 10, 2007.
See
C-21 at 278-79; C-24 (City’s Notice of Public Hearing); C-
1650-51 (same). The record includes 50 written public comments. C-26 –145.
On March 9, 2007, the City filed “Applicant’s Proposed Findings of Fact and
Conclusions of Law.” C-821-82;
see
C-2 at Appendix A.2 (siting ordinance Section 78-76(n)
regarding proposed findings); C-21 at 279. The City proposed finding that that the application
satisfied both criteria (ii) and (vi). C-854, C-870.
On March 9, 2007, CCOC filed its “Evidentiary Summary and Proposed Findings of Fact
and Conclusions of Law.” C-271-332. CCOC proposed finding that the application did not
satisfy criteria (ii) or (vi). C-308, C-317. CCOC suggested that, in the event the City Council
found that the application satisfied the siting criteria, eighteen special conditions should be
imposed. C-322-25.
The City Council retained Patrick Engineering, Inc. (Patrick Engineering) as a technical
consultant under the terms of the City’s siting ordinance. C-253;
see
C-2 at Appendix A.2
(Rochelle siting ordinance). On March 23, 2007, Patrick Engineering issued to the City Council
a report on the application for siting approval.
See
C-251-70. Patrick Engineering stated that it
had “reviewed the application, the transcripts of the public hearings, and other materials
submitted into the record.” C-253. With regard to criterion (ii), the report concluded that “the
design, operation and location of the expansion is designed and proposed to be operated to be
protective of the public health safety and welfare” subject to 37 special conditions pertaining to
design, operation, and location. C-262-66. The report did not specifically review or address
criterion (vi).
See
C-253.
On March 30, 2007, the local hearing officer filed his findings of fact, conclusions of
law, and recommendations. C-206-50. The hearing officer concluded, based on his review of
the record, that the application satisfied the siting criteria and recommended that the City
Council approve the request for siting subject to special conditions. C-210; C-243-48. In
addressing the operator’s previous operating experience, the hearing officer found “all of the
special conditions recommended by Patrick Engineering, Inc. to be reasonably necessary,
supported by the record and necessitated by the previous operating experience.” C-242-43.
On April 11, 2007, the City Council convened a special meeting to consider the
application.
See
C-22 (transcript). The City Council voted with six in favor and one opposed
that the application demonstrated compliance with criterion (ii) with the attachment of Special
Conditions 1-32. C-22 at 117-18 (transcript);
see
C-1655-56 (Resolution 07-10). The City
Council voted with six in favor and one opposed that the application demonstrated compliance
with criterion (vi) with the attachment of Special Conditions 33-35. C-22 at 55-56 (transcript);
see
C-1656 (Resolution 07-10). With seven voting in favor and none voting against, the City
Council approved Resolution 07-10 approving the application for local siting approval. C-22 at
119-20;
see
C-1652-61.
On April 20, 2007, RWD filed a motion to reconsider the City Council’s imposition of
specified special conditions. C-180-82. On various grounds, RWD requested that the City
6
Council reconsider its decision to impose Special Conditions 8, 13, 22, 23, 26, 28, 33, and 34.
Id
. On April 27, 2007, CCOC filed its response to the motion to reconsider, which requested that
the City Council not reconsider its April 11, 2007 decision or, in the alternative, strengthen the
special conditions. C-168-78. On April 27, 2007, the City filed its response to the motion to
reconsider. C-146-57. The City requested “that the City Council grant the Operator’s motion, in
part, and deny it in part, by reconsidering Special Conditions 8, 13, 22, 23, 26, 28, and 34, and
upon r4econsideration, deleting or modifying those conditions” according to its response. C-
157.
On May 8, 2007, the City Council convened a special meeting to address RWD’ motion
for reconsideration. C-23 at 1-4. The City Council voted with six in favor and one opposed to
grant RWD’s motion for reconsideration. C-23 at 5-6;
see
C-1664 (Resolution 07-18). With
seven voting in favor and none opposed, the City Council upon reconsideration voted to affirm
Special Condition 8 as imposed. C-23 at 15-16;
see
C-1664. With six voting in favor and one
opposed, the City Council upon reconsideration voted to affirm Special Condition 13 as
imposed. C-23 at 31-32;
see
C-1664. With four voting in favor and three opposed, the City
Council upon reconsideration voted to affirm Special Condition 22 as imposed. C-23 at 43-46;
see
C-1664. With six voting in favor and one opposed, the City Council upon reconsideration
voted to affirm Special Condition 23 as imposed. C-23 at 52-53;
see
C-1664. With seven voting
in favor and none opposed, the City Council upon reconsideration voted to affirm Special
Conditions 26 and 28 as imposed. C-23 at 64-65;
see
C-1664. With seven voting in favor and
none opposed, the City Council upon reconsideration voted to affirm Special Condition 33 as
imposed. C-23 at 81;
see
C-1664. With five voting in favor and two opposed, the City Council
upon reconsideration voted to amend Special Condition 34. C-23 at 85-86;
see
C-1665. With
seven voting in favor and none voting against, the City Council approved Resolution 07-18,
which modified Special Condition 34, affirmed all other conditions, and in all other respects
maintained in effect Resolution 07-10. C-1662-66 (Resolution 07-18).
Host Agreement
On August 28, 2006, the City Council passed, and on August 29, 2006, the mayor signed
Ordinance No. 06-3472, entitled “An Ordinance Approving Restatement of Host Agreement for
City Landfill.” C-2 at Appendix C.1. That ordinance authorized and directed the City Manager
to execute a restatement of the existing host agreement between the City and RWD.
Id
. On
September 26, 2006, the City and RWD executed a “Restatement of Host Agreement and
Agreement for Operation/Development of City of Rochelle Landfill No. 2.”
Id
.
Paragraph 3.12 of the restated host agreement, regarding costs assumed by the operator,
provides in pertinent part that
(a) [s]ubject to the provisions of subparagraph (b) below, after the date of the
Original Agreement, all costs (present and future) associated with the design,
construction, development, operation, closure and postclosure phases of the
Landfill and the Expanded Facility, and any and all costs, fees, fines, penalties,
and/or expenses that may arise in any way from the design, construction,
development, operation, closure and postclosure of the Landfill and the Expanded
7
Facility, are to be paid by, and are the sole responsibility of OPERATOR.
OPERATOR shall also be responsible to pay any engineering, monitoring, and
other professional fees and necessary expenses associated with the Significant
Modification process which were incurred by the CITY subsequent to the date of
public notice of the Request for Proposal for bids (RFP) for the
operation/development of the City of Rochelle Landfill No. 2, which are related to
ensuring that the existing facility and all expansions thereto comply with all
applicable and relevant state, federal, and local statutes, rules, regulations, or
ordinances . . . .
(b) In the event that the CITY applies for local siting approval for an expansion of
the Landfill, the CITY shall be responsible for all of the costs incurred in
connection with the application and the local siting process, including the fees of
any consultants, engineers, and other experts, filing fees, hearing officer fees,
expenses of hearings and transcripts, and all other costs associated with the
application or any appeal; provided, however, that the CITY shall not be
responsible for any of OPERATOR’S costs related to the siting application or any
siting appeal, including the fees of consultants, engineers and other experts . . . .
C-2 at Appendix C.1.
Paragraph 3.13 of the restated host agreement, regarding supplemental and special
permits, provides in its entirety that
[t]he OPERATOR shall be entitled to obtain, at the expense of the OPERATOR,
any state or federal Supplemental Permits, Significant Modification Permits,
Renewal Permits, special waste stream permits, adjusted standards, variances, and
other permits or authorizations, and any amendments or modifications to any of
the foregoing, which the OPERATOR determines to be necessary or appropriate
for the operations, development, expansion, or closure of the landfill or for any
corrective or remedial action relating to the landfill. The OPERATOR will
provide the CITY with reasonable prior notice of any such applications intended
to be filed by the OPERATOR and the OPERATOR shall not seek any permit,
variance, or standard which would have a material adverse effect on the CITY
without the prior written approval of the CITY. The CITY will cooperate with
the OPERATOR in all such applications or petitions filed by the OPERATOR.
C-2 at Appendix C.1
Paragraph 7.4 of the restated host agreement, pertaining to Unit 1 of the existing landfill,
provides in pertinent part that
(a) [i]n the event that the CITY prepares and files an application for local siting
approval for an expansion of the Landfill pursuant to Section 39.2 of the Act in
accordance with the provisions of paragraph 7.3 above, the CITY may in its
discretion determine to provide in its application that Unit 1 of the existing
landfill will be excavated and re-disposed of in a new Subtitle D unit, with the
excavation to be commenced and completed within a commercially reasonable
8
time. Subject to the provisions of this subparagraph, the timing, sequence, and
manner of excavation and re-disposal will be determined by the mutual agreement
of the CITY and the OPERATOR, subject to any applicable requirements of the
Illinois Environmental Protection Agency (the ‘IEPA’).
(b) In the event that an expansion of the Landfill which is consistent with the
terms of this Agreement is applied for by the CITY in accordance with the
provisions of this Agreement and such an expansion of the Landfill receives final
and non-appealable local siting approval, if the local siting approval requires the
excavation and re-disposal of Unit 1: (i) the CITY will re responsible for the first
eight hundred fifty thousand dollars ($850,000.00) of the cost of excavating and
re-disposing the Unit 1 waste; (ii) the OPERATOR will be responsible for all
costs of excavating and re-disposing the Unit 1 waste in excess of that amount;
and (iii) the OPERATOR will be responsible for obtaining any permits necessary
for the excavation and re-disposal of the Unit 1 waste, and for the selection, of
contractors, consultants, and engineers to be utilized in the design, permitting, and
performance of the excavation and re-disposal of the Unit 1 waste. C-2 at
Appendix C.1.
Siting Criteria
Criterion (ii)
Litter Control.
RWD’s application contains provisions addressed to litter control. C-1
at 2.6-6-7. The application first requires incoming vehicles either to be fully enclosed or to have
covers or tarps. C-1 at 2.6-6. Second, the application states that RWD will maintain the active
disposal area as small as possible and will cover it at then end of each day.
Id
. Third, the
application provides that a perimeter fence and exterior berm will surround the entire facility.
Id
.
Fourth, the application states that RWD will also erect temporary litter fences near the active
face of the landfill.
Id
. Fifth, the application indicates that RWD will modify its activities during
periods of high winds.
Id
. Sixth, the application requires RWD to suspend operations when
there is a tornado alert, when sustained winds reach 35 miles per hour, or when the City
determines that RWD has been or is not able adequately to control blowing litter from the
facility.
Id
.
The application further provides that “[l]aborers will patrol the facility and surrounding
property to collect any litter escaping the active fill area, including litter caught by the portable
and perimeter fencing.” C-1 at 2.6-6. The application states that laborers on a daily basis will, at
a minimum, inspect the right-of-way and adjacent areas along Mulford Road from the landfill
entrance north to Illinois Highway 38 and along Illinois Highway 38 from the intersection of
Mulford Road west to the Interstate Highway 39 interchange. C-1 at 2.6-7. The application also
states that litter collection will occur along these routes at least once per week of as requested by
the City.
Id
.
Waste Exhumation from Unit 1.
The application provides that Unit 1 “will be
excavated so that the waste is placed within a landfill that has a composite liner, leachate
9
collection system, landfill gas management system, and a groundwater monitoring system.” C-1
at 2.6-24. The application lists equipment with which RWD expects to accomplish the
relocation. C-1 at 2.6-25 (Table 2.6-3). The application states that relocation operations will
take place between 6 AM and 5 PM Monday through Saturday and that it will not generally take
place on Sundays and certain holidays without written approval by the City Council. C-1 at 2.6-
25. Because the application provides that RWD will not perform waste relocation during months
in which the average daily temperature is above 65 degrees Fahrenheit, RWD expects to conduct
relocation only between October 1st and March 1st without written approval by the City Council.
Id
. The application states that “Unit 1 was filled over a 20 year period. It is anticipated that
relocation of Unit 1 will be performed over a 5-10 year period.” C-1 at 2.6-24.
The application provides procedures and standards regarding removal of final cover from
Unit 1 and the application of daily and intermediate cover during the relocation process.
See
C-1
at 2.6-25; C-20 at 178-79, 319-29 (January 24, 2007 transcript). The application also specifies
procedures regarding the removal and handling of liquid wastes found during the relocation. C-1
at 2.6-25. The application requires the development of an air monitoring program for the
excavation area and the waste separation facility and describes circumstances triggering the
implementation of a gas extraction system. C-1 at 2.6-26. In addition, the application notes that
a stormwater management plan has been developed for the proposed expansion.
Id
. The
application further notes that temporary perimeter berms around the relocation areas will
supplement this plan.
Id
. The application also requires the employment of erosion control
measures.
Id
. Finally, the application describes safety procedures with regard to various
elements of the relocation and also requires the use or the availability of various safety
equipment. C-1 at 2.6-26, 27-28.
Perimeter Berms.
The Application states that “[f]acility operations will be screened
from view along South Mulford Road, East Creston Road, South Locus[t] Road, and Illinois
Route 38 by a vegetated earthen berm or fence with a total height no less than eight feet.” C-1 at
2.1-13;
see
C-20 at 110 (January 21, 2007 transcript).
The application includes a land use and planning analysis prepared for RWD by The
Lannert Group, Inc. of Geneva, Illinois, a community planning and landscape architecture firm.
C-1 at 3.1-1
et seq
.; C-20 at 86-87 (January 21, 2007 transcript). The analysis includes a
landscape plan with the objective of “providing an attractive visual buffer along the Facility
perimeter and at the entrance.” C-1 at 3.1-8;
see
C-1 at 3.1, Exhibits 5,6 (landscape plan and
enlargement). A screening berm along Creston Road will be reach a height of ten to twelve feet
and will feature a variety of trees. C-1 at 3.1-8;
see
C-1 at 3.1, Exhibits 5,6; C-20 at 106-07
(January 21, 2007 transcript); C-20 at 178 (January 24, 2007 transcript) (Moose testimony); C-20
at 159-60 (January 25, 2007 transcript); C-25 at Applicant’s Exhibit 3 (slides 22, 23). At their
maturities, ornamental trees will reach a height of 15 to 25 feet, conifers will reach a height of 35
to 50 feet, and deciduous shade trees will reach a height of 40 to 50 feet. C-1 at 3.8. Around the
base of conifer trees, clusters of grasses will be planted for additional screening.
Id
.
Mr. Moose testified that, because the proposed expansion would rise to a height of 100
feet at some points, it would not be practical to screen the landfill completely from view from all
locations. C-20 at 202 (January 24, 2007 transcript). He further testified that it would be a more
10
appropriate approach in particular circumstances to erect an operation screening berm on top of
the wastes in the landfill and conduct landfilling activities screened from view by that berm.
Id
.;
see also
C-20 at 66-69 (January 25,2007 transcript) (Moose testimony).
Witnesses’ Conclusions.
Mr. Devin Moose of Shaw Engineering testified that, in his
opinion, the expansion is “so designed, located, and proposed to be operated so as to protect the
public health, safety and welfare.” C-20 at 195 (January 24, 2007 transcript). Testifying for
CCOC, Mr. Norris stated that he would render no opinion whether the application for the
proposed expansion satisfies criterion (ii). C-20 at 156 (January 26, 2007).
Criterion (vi)
RWD’s siting application contains a report prepared by Michael Werthmann and
summarizing the findings and recommendations of a traffic impact analysis conducted by Kenig,
Lindgren, O’Hara, Aboona, Inc. (KLOA), a traffic and transportation engineering firm. C-1 at 6-
1; C-20 at 16 (January 23, 2007 transcript);
see
C-6 at Appendix V (Werthmann resume). The
report concerns Mr. Werthmann’s study as to whether proposed traffic patterns to and from the
expanded facility are so designed as to minimize the impact on existing traffic flows. C-1 at 6-1;
C-20 at 17 (January 23, 2007 transcript).
KLOA conducted a three-phase study to evaluate the traffic impact of the proposed
expansion. C-1 at 6-2; C-20 at 17 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7
(Slide 3). In the first phase, KLOA examined the existing physical and operational
characteristics of the roadway system that might affect access to the proposed expansion. C-1 at
6-2; C-20 at 17 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 3). This first
phase involved field surveys and discussions with agencies including the Illinois Department of
Transportation (IDOT) and the City. C-1 at 6-2; C-20 at 18-19 (January 23, 2007 transcript); C-
25 at Applicant’s Exhibit 7 (Slide 5). KLOA also obtained data including “existing traffic
volumes, approved or proposed developments, planned or proposed roadway improvements, and
accident data.”
Id
. In addition, KLOA conducted traffic counts at intersections and on roads in
the vicinity and a gap study along Illinois Highway 38 at the intersection of Mulford Road.
Id
.
In the second phase, KLOA determined the type and volume of traffic that would be
generated by the proposed expansion and the routes that will be used to travel to and from it. C-
1 at 6-2; C-20 at 17-18 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 3). In
the third phase, KLOA evaluated the impact that traffic generated by the proposed expansion
will have on the existing roadway system. C-1 at 6-3; C-20 at 18 (January 23, 2007 transcript);
C-25 at Applicant’s Exhibit 7 (Slide 3).
Site Access.
KLOA’s report describes the major roadways serving the area in the
vicinity of the landfill. First, Interstate Highway 39 is a limited access highway with two lanes
traveling both north and south. C-1 at 6-4; C-20 at 19 (January 23, 2007 transcript); C-25 at
Applicant’s Exhibit 7 (Slide 6). Interstate Highway 39 has full access interchanges with both
Illinois Highway 38 and Interstate Highway 88.
Id
.
11
Second, Illinois Highway 38 is an east-west major arterial roadway. C-1 at 6-6; C-20 at
19 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 7). East of Interstate
Highway 39, it is a two-lane roadway with a posted speed limit of 55 miles per hour.
Id
. West
of Interstate Highway 39, it is a four-lane divided highway with a posted speed limit of 45 miles
per hour.
Id
. Illinois Highway 38 provides separate left-turn lanes at its intersections with
Mulford Road, the Interstate 39 on-ramps, and Dement Road. C-1 at 6-6; C-20 at 19-20 (January
23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 7). It provides separate right-turn lanes
at its intersections with Mulford and Dement Roads. C-1 at 6-6; C-20 at 20 (January 23, 2007
transcript); C-25 at Applicant’s Exhibit 7 (Slide 7). Illinois Highway 38 is under the jurisdiction
of IDOT and is classified as a Class II Highway with a weight limit of 80,000 pounds. C-1 at 6-
6; C-20 at 20 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 7).
Third, Mulford Road is a north-south two-lane roadway including an at-grade crossing
with the Union Pacific Railroad tracks. C-1 at 6-6; C-20 at 20 (January 23, 2007 transcript); C-
25 at Applicant’s Exhibit 7 (Slide 8). The access drive to the existing landfill is situated
approximately 150 feet south of those tracks. C-1 at 6-6. At its intersections with Illinois
Highway 38 and Creston Road, Mulford Road is under stop-sign control. C-1 at 6-6; C-20 at 20
(January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 8). Mulford Road falls under
the jurisdiction of Dement Township, except between the railroad tracks and Creston Road,
where it under the jurisdiction of the City, and it has a weight limit of 73,280 pounds. C-1 at 6-
6; C-20 at 20 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 8);
see also
C-
25 at Applicant’s Exhibit 8 (letter from Ogle County Highway Department engineer). Fourth,
Creston Road is an east-west two-lane roadway. It falls under the jurisdiction of the City and
also has a weight limit of 73,280 pounds. C-1 at 6-6; C-20 at 20 (January 23, 2007 transcript);
C-20 at 20 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (slide 9).
KLOA’s report notes that Mulford Road has an at-grade crossing with Union Pacific
railroad tracks. C-1 at 6-7; C-20 at 21 (January 23, 2007 transcript). The crossing provides both
passive control devices such as signs and active control devices, including gates, lights, and
bells.
Id
. While the Federal Railroad Administration reports that 32 trains per day travel through
this crossing (C-1 at 6-7), the Union Pacific reports that 50 to 60 trains per day travel through it.
C-20 at 76-77, 111-16 (January 23, 2007 transcript);
see also
C-25 at Applicant’s Exhibit 8.
KLOA’s report refers to proposed and completed roadway improvements in the vicinity
of the proposed expansion. First, “Mulford Road is proposed to be reconstructed and upgraded
to a two-lane road with a weight limit of 80,000 pounds” from Illinois Highway 38 to a point just
south of the site access drive. C-1 at 6-6; C-20 at 21, 45-48, 109-11 (January 23, 2007
transcript); C-25 at Applicant’s Exhibit 7 (Slide 11). In his testimony, Mr. Werthmann stated his
belief that this proposed improvement “will help minimize the impact on the existing traffic
flow.” C-20 at 138 (January 23, 2007 transcript). Second, IDOT recently improved the
intersection of Interstate Highway 39 and Illinois Highway 38. C-20 at 22 (January 23, 2007
transcript). These improvements include adding a separate left-turn lane on the northbound
ramp, increasing intersection radii to accommodate turning truck traffic, and installing a new
traffic signal. C-1 at 6-6; C-20 at 22 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7
(Slide 11).
12
IDOT has also improved the intersection of Illinois Highway 38 and Mulford Road. C-
20 at 22 (January 23, 2007 transcript). These improvements included adding separate left-turn
and right-turn lanes on Illinois Highway 38, increasing intersection radii, and improving
approaches on Mulford Road.
Id
. These improvements “provided deceleration lanes and
stacking lanes on Illinois [Highway] 38 for the truck traffic that was turning to and from Mulford
Road.”
Id
. at 22-23;
see also id
. at 106-07 (lacking warrant for traffic signal).
Existing Traffic Volumes.
During July and August of 2006, KLOA conducted manual
counts of the traffic at the intersections of Illinois Highway 38 and Mulford Road, Illinois
Highway 38 with the Interstate Highway 39 ramps, and Mulford and Creston Roads. C-1 at 6-6;
C-20 at 23 (January 23, 2007 transcript). KLOA conducted these counts between 6:00 and 9:00
AM and between 3:00 and 6:00 PM in order to evaluate the peak hours of traffic. C-1 at 6-6; C-
20 at 23-24 (January 23, 2007 transcript). During these counts, the existing landfill was open
and processing between 600 and 1200 tons of waste per day. C-1 at 6-6; C-20 at 24 (January 23,
2007 transcript). KLOA had performed traffic counts in 2001 and 2002 at all of these three
intersections as part of a traffic study for a 2003 landfill expansion application. C-1 at 6-7. “To
provide a conservative analysis, the 2001, 2002, and 2006 traffic counts at each intersection were
compared and the highest traffic volume for each particular movement for each peak hour were
used for this evaluation.”
Id
.;
see
C-1 at 6-8 (Figure 2: Existing Peak Hour Volumes), C-25 at
Applicant’s Exhibit 7 (Slide 12).
In August of 2006, KLOA also conducted 24-hour machine counts of traffic on Illinois
Highway 38 just west of Mulford Road and on Mulford Road just south of Illinois Highway 38.
C-1 at 6-7; C-20 at 26 (January 23, 2007 transcript). This count determined that Illinois
Highway 38 had a daily traffic volume of approximately 8,700 vehicles, 87 percent of which
were cars and lights trucks and 13 percent of which were single unit and heavy trucks. C-1 at 6-
7; C-20 at 26 (January 23, 2007 transcript). The count also determined that Mulford Road had a
daily traffic volume of approximately 330 vehicles, 60 percent of which were cars and light
trucks and 40 percent of which were single unit and heavy trucks.
Id
.;
see
C-6 at Appendix T
(Existing Traffic Counts).
Development Traffic Characteristics.
In the second phase of its study, KLOA
performed a directional distribution analysis, which is intended to determine the routes used to
travel to and from the proposed expansion. C-1 at 6-9; C-20 at 26 (January 23, 2007 transcript);
C-25 at Applicant’s Exhibit 7 (Slide 13). KOA also determined the volume of traffic generated
by the proposed expansion during periods of peak traffic.
Id
. In addition, KLOA assessed future
growth in the vicinity of the proposed expansion in order to estimate patterns of traffic generated
by other developments near the site.
Id
.
In its study, KLOA developed two directional distributions based on the intended service
area of the proposed facility. The first distribution addresses local waste, “that is collected
within the general area and is delivered to the landfill directly to the landfill via the single-unit
collection trucks.” C-20 at 27 (January 23, 2007 transcript). KLOA expects this distribution to
be similar to the distribution for the existing facility. C-1 at 6-9. KLOA projects that 80 percent
of this traffic “will arrive to and from the landfill via Illinois [Highway] 38 south on Mulford
Road to the site access drive.” C-20 at 27 (January 23, 2007 transcript). KLOA expects the
13
remaining 20 percent to be distributed on Mulford Road to and from the north and south and on
Creston Road to and from the east and west.
Id
. at 28.
The second distribution addresses wastes arriving from transfer stations in transfer
trailers or larger semi trailers. C-1 at 6-9; C-20 at 28 (January 23, 2007 transcript). Because
those transfer stations are located some distance from the proposed expansion, the majority of
that traffic will arrive via Interstate Highway 39 and then travel east on Highway 38 and south on
Mulford Road to the site access drive.
Id
. KLOA’s distribution shows that no transfer trucks
will reach the proposed expansion on Mulford Road to and from the north and south and on
Creston Road to and from the east and west. C-1 at 6-10; C-20 at 28 (January 23, 2007
transcript); C-25 at Applicant’s Exhibit 7 (Slide 14).
KLOA also estimated, based on the magnitude and character of the proposed facility and
its service area, the volume of traffic generated by the proposed expansion. C-1 at 6-10.
Although KLOA noted projections that the proposed expansion would process an average of
1,000 tons of waste pre day, it based part of its study on a volume of 1,500 tons per day in order
to provide a more conservative analysis. C-1 at 6-10; C-20 at 29 (January 23, 2007 transcript).
KLOA projects that, on an average day processing 1,000 tons of waste, the landfill will generate
92 round-trip truck trips. C-1 at 6-10, 11; C-20 at 29 (January 23, 2007 transcript); C-25 at
Applicant’s Exhibit 7 (Slide 15). KLOA further projects that, on a day processing 1,500 tons of
waste, the landfill will generate 117 round-trip truck trips.
Id
.
In his testimony, Mr. Werthmann referred to a projected hourly distribution of the truck
traffic, which is based on expected schedules of landfill customers and on previous surveys at
exiting facilities. C-1 at 6-10; C-25 at Applicant’s Exhibit 7 (Slide 15). Mr. Werthmann stated
that the landfill is projected to generate 11 to 14 round-trip truck trips during peak morning
traffic and eight to 11 round-trip truck trips during the peak afternoon traffic. C-1 at 6-11; C-20
at 30, 97-99 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 15). Mr.
Werthmann also testified that, since July 2006, the existing landfill has processed an average of
more than 600 tons of waste per day and has processed more than 1,000 tons of waste on many
days. C-20 at 30 (January 23, 2007 transcript);
see
C-1 at 6-11. Mr. Werthmann further testified
that the majority of the projected round-trip truck trips “is already generated by the existing
landfill and is already on the existing roadway systems.” C-20 at 30 (January 23, 2007
transcript).
Future Growth.
KLOA performed two future traffic assignments. The first addresses
existing traffic plus the traffic generated specifically by the proposed expansion. C-1 at 6-12; C-
20 at 32 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 16). Mr. Werthmann
testified that this first traffic assignment is based on processing 1,500 tons of waste per day at the
proposed expansion. C-20 at 33 (January 23, 2007 transcript).
Mr. Werthmann first testified regarding traffic volumes generated during peak traffic
hours by the proposed expansion. From Illinois Highway 38 south to Mulford Road, he stated
that the expansion “will generate 12 left turn movements [during the morning peak hour] and 3
right turn movements during the evening peak hour.” C-20 at 33 (January 23, 2007 transcript);
C-1 at 6-14; C-25 at Applicant’s Exhibit 7 (Slide 17). The same projection shows 13 right turn
14
movements during the morning peak hour and six right turn movements during the evening peak
hour.
Id
. Mr. Werthmann characterized this as “not a significant volume of traffic” in light of
the capacity of the roadway system. C-20 at 33-34 (January 23, 2007 transcript).
Mr. Werthmann next testified regarding the addition of expansion-generated traffic to
existing volumes at peak hours. After comparing the volume at the intersection of Illinois
Highway 38 and Mulford Road with the greater volume at the intersection of Illinois Highway
38 and the southbound ramp from Interstate Highway 39, Mr. Werthmann stated that “the
volume of traffic on Mulford Road is not significant by any means.” C-20 at 34-35 (January 23,
2007 transcript);
see
C-1 at 6-15; C-25 at Applicant’s Exhibit 7 (Slide 18).
KLOA also projected traffic volumes in 2013, five years after the proposed expansion is
expected to begin receiving waste. This projection increases existing traffic volumes by 21
percent to account for background growth in the area and also accounts for a proposed 250-home
residential development in Creston. C-1 at 6-12; C-20 at 32, 65-66 (January 23, 2007 transcript).
Mr. Werthmann testified that the 2013 traffic projection shows traffic volumes similar to the
other projection. C-20 at 35 (January 23, 2007 transcript); C-1 at 6-16; C-25 at Applicant’s
Exhibit 7 (Slide 19).
Evaluations and Recommendations.
In this phase of its analysis KLOA conducted an
analysis of intersection capacity in the vicinity of the proposed expansion. C-1 at 6-17-21; C-20
at 35-36 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 21);
see
C-6 at
Appendix T (capacity analyses). Mr. Werthmann testified that intersection capacity is rated “A”
to “F” on level of service, which is based on delay as a measure of driver discomfort and lost
travel time. C-20 at 35-36 (January 23, 2007 transcript); C-1 at 6-18. The analysis found that,
with existing traffic volumes, “all of the intersections are operating at a very good level of
service with minimal delay.” C-20 at 37 (January 23, 2007 transcript);
see
C-25 at Applicant’s
Exhibit 7 (Slide 21); C-1 at 6-19. The analysis projected that, with the addition of expansion-
generated traffic, all intersections would continue to operate at an acceptable level of service. C-
20 at 37 (January 23, 2007 transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 21); C-1 at 6-19.
The analysis also projected that, with 2013 traffic volumes, the intersections would
continue to operate at an acceptable level of service, with the exception of the intersection of
Illinois Highway 38 and the southbound ramp from Interstate Highway 39, which is now
controlled by a stop sign. C-1 at 6-19-21; C-20 at 37 (January 23, 2007 transcript);
see
C-25 at
Applicant’s Exhibit 7 (Slide 21). Mr. Werthmann testified that traffic levels at this intersection
will warrant installation of a traffic signal, one of which is already in service for the northbound
ramp. C-20 at 37-38 (January 23, 2007 transcript). The analysis attributes the need for this
traffic signal to projected background growth. C-1 at 6-21; C-20 at 38, 61 (January 23, 2007
transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 21). Mr. Werthmann concludes that
expansion-generated traffic will account for less than one percent of total 2013 traffic volumes at
this intersection. -C-20 at 38 (January 23, 2007 transcript).
KLOA also referred to a sight distance analysis of the intersection of the intersection of
Illinois Highway 38 and Mulford Road. C-1 at 6-21; C-20 at 38-39, 105-06 (January 23, 2007
transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 21);
see
C-6 at Appendix T (Sight Distance
15
Analysis). Mr. Werthmann testified that this analysis determines whether a vehicle waiting on
Mulford Road can see for a distance sufficient for determining if it wants to make its maneuver
onto Illinois Highway 38. C-20 at 38-39 (January 23, 2007 transcript). He further testified that
IDOT’s analysis demonstrated that “there’s more than sufficient sight distance” for the vehicles
that will be exiting from Mulford Road.
Id
.;
see
C-1 at 6-21; C-25 at Applicant’s Exhibit 7
(Slide 21).
As another element of its analysis, KLOA examined accident data for the years 2000 to
2004 for three specific roadway sections: Illinois Highway 38 from Illinois Highway 251 to
Beck Road, Creston Road from Illinois Highway 251 to Locust Road, and Mulford Road from
Twombly Road to Creston Road. C-1 at 6-21; C-20 at 39-40, 85 (January 23, 2007 transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 23) C-6 at Appendix T (accident data). KLOA obtained
this data from IDOT and the Ogle County Sheriff’s Department.
Id
. Based on the area traffic
and proposed improvements, KLOA “concluded that the additional traffic generated by the
expanded landfill
will not
measurably contribute to conditions resulting in accidents on area
roadways.” C-1 at 6-22 (emphasis in original);
see
C-20 at 40, 70-71 (January 23, 2007
transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 23).
KLOA also conducted a gap study at the intersection of Illinois Highway 38 and Mulford
Road. Because Mulford Road is controlled by a stop sign at its intersection with Illinois
Highway 38, vehicles waiting on Mulford Road must wait for an adequate gap in traffic in order
to enter the roadway. C-20 at 40 (January 23, 2007 transcript). These study measured gaps in
September 2006 by surveying the number and duration of available gaps in the traffic stream. C-
1 at 6-22;
see
C-20 at 40 (January 23, 2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 22).
The study concluded that, during the peak morning and evening hours, there is more than an
adequate number of gaps in the Illinois Highway 38 traffic stream to accommodate vehicles
turning to and from Mulford Road. C-1 at 6-23; C-20 at 40-41, 52-55 (January 23, 2007
transcript); C-25 at Applicant’s Exhibit 7 (Slide 22).
As the final element in its analysis, KLOA addressed access to the site of the proposed
expansion. The application provides that the expanded landfill will be served by a new access
drive situated approximately 1,800 feet south of the Union Pacific railroad tracks on the east side
of Mulford Road. C-1 at 6-24; C-20 at 41 (January 23, 2007 transcript); C-25 at Applicant’s
Exhibit 7 (Slide 23). The analysis states that neither projected traffic volumes nor IDOT
guidelines require a separate right-turn lane or separate left-turn lane on Mulford Road to serve
this new access drive. C-1 at 6-24; C-20 at 41 (January 23, 2007 transcript); C-25 at Applicant’s
Exhibit 7 (Slide 23). The analysis further states that, because the scale house is approximately
1,100 feet inside the site from Mulford Road, there is “more than sufficient” distance to prevent
waiting trucks from stacking out onto Mulford Road. C-1 at 6-24;
see
C-20 at 42 (January 23,
2007 transcript); C-25 at Applicant’s Exhibit 7 (Slide 23).
KLOA’s Conclusions.
KLOA’s analysis reaches three chief conclusions. First, “[t]he
traffic generated by the proposed expansion of the Rochelle Landfill will not have a significant
impact on the existing roadway network.” C-1 at 6-25; C-20 at 44 (January 23, 2007 transcript);
see
C-25 at Applicant’s Exhibit 7 (Slide 24). Second, “[t]he proposed design of the site access
drive will be more than adequate to serve the facility and ensure the traffic demands will be
16
accommodated.”
Id
. Third “[t]he proposed demands of the expanded landfill can be
accommodated safely and efficiently on the existing roadway system and, therefore, no roadway
improvements are required other than those currently proposed or committed to as part of the
proposed expansion and by IDOT along IL 38.”
Id
. KLOA’s professional opinion is that “the
proposed expansion [of the] Rochelle Landfill has been designed to meet the sixth siting criterion
provided in Section 39.2 of the Illinois Environmental Protection Act. Therefore, it is our
opinion that the ‘traffic patterns to and from the facility are so designed as to minimize the
impact on the existing traffic flow.’”
Id
.; C-20 at 44 (January 23, 2007 transcript);
see also
415
ILCS 5/39.2(a)(vi) (2006).
RWD’s Operating History
Background.
The proposed expansion will take place on property owned by the City
and will be operated by RWD. C-1 at 10-1 (Previous Operating Experience). On January 21,
1995, the City and RWD entered into an operating agreement, which transferred operational
responsibility of the Rochelle Municipal Landfill #2 to from the City to RWD.
Id
.; C-21 at 11
(Hilbert testimony). Although RWD began operating the landfill on July 1, 1995, the official
transfer of operating authority did not occur until January 26, 1996. C-1 at 10-1. Before the
operating agreement, the City operated the landfill.
Id
.
Pursuant to the Rochelle Municipal Siting Ordinance, RWD filed with the application a
listing of violation notices or administrative citations received by RWD since 1995. C-1 at 10-1,
C-21 at 11 (February 8, 2007 transcript);
see
C-2 at Appendix A.2 (Siting Ordinance), C-6 at
Appendix U (Company Information). That listing was prepared by Mr. Thomas Hilbert, who has
been the engineering manager for Winnebago Reclamation Service since approximately 1993
and whose duties include construction, permitting, and compliance at the Rochelle Municipal
Landfill. C-20 at 228-31 (January 24, 2007 transcript); C-21 at 9, 11-12. Mr. Hilbert testified
that he included in the summary every separate violation notice received from either Ogle
County or the IEPA since 1995. C-21 at 28, 137;
see
C-1 at 10-1.
Mr. Hilbert described three separate enforcement mechanisms under the Act. C-21 at 23-
25. He first referred to an administrative citation, which a respondent may appeal to the Board
and which involves a specified fine. C-21 at 24;
see
415 ILCS 5/31.1, 42(b)(4 (2006). Second,
he described a violation notice as notifying an operator that a violation has been observed and
offering an opportunity to account for it and propose a resolution. C-21 at 24. Mr. Hilbert
testified that RWD responds to a violation notice by notifying the Ogle County Solid Waste
Management Department to describe the basis of the violation and action taken to address it. C-
21 at 120. If the department accepts that description and resolution, the letter reflecting that
agreement forms the basis of a compliance commitment agreement.
Id
. at 120-21. Third,
described a warning notice as a notification of apparent violations that may need to be addressed.
Id
.
In addition, Mr. Stephen Rypkema, the Director of the Ogle County Solid Waste
Management Department prepared for filing as a public comment a document entitled “Summary
of Inspections and Apparent Violations Noted by Ogle County Solid Waste Management
Department during Inspections at the Rochelle Municipal #2 Landfill April 1991 – December
17
2006.” C-25 at Operator’ Exhibit 2; C-31 – 38 (filed public comment0;
see
C-21 at 12. He
prepared this document at the request of the parties after the hearing recessed on January 25,
2007. C-21 at 66;
see
C-20 at 37-39, 220-230 (January 25, 2007 testimony). Mr. Rypkema
stated that the county began inspecting the landfill in 1991 under a delegation of authority from
the Agency. C-25 at Operator’s Exhibit 2. His department generally conducts these inspections
on a monthly basis.
Id
. Mr. Rypkema noted that the information in his table may be different
from what is required by Rochelle’s ordinance to be submitted with a siting application.
Id
.
January 10, 1996 and January 22, 1996.
During an inspection on January 10, 1996,
Mr. Rypkema observed at the landfill site two apparent violations regarding the size and location
of the leachate storage tank installed there. Specifically, the tank differed from specifications in
permit # 1994-547LFM. C-9 (Narrative Inspection Report Document);
see
C-6 at Appendix U,
C-25 at Operator’s Exhibit 2. Although the permit specified that a 35,000-gallon tank was to be
installed directly south of the scale house on the northwestern corner of the site, RWD had
installed a 10,000-gallon tank on the southwestern corner of the site without prior Agency
approval. C-9. A January 22, 1996 pre-operational inspection to certify construction of a liner
and leachate collection system revealed the same apparent violations.
Id
.; C-25 at Operator’s
Exhibit 2.
Mr. Hilbert stated that RWD had intended to include these changes in size and location in
its application for an operating permit but had not done so. C-9. He further stated that RWD
would submit a letter and drawings to the Agency, which was expected to determine whether the
changes that had been made required a significant modification permit.
Id
. This inspection
resulted in an Administrative Warning Notice issued on February 13, 1996.
Id
. A permit
modification approved on February 23, 1996 disposed of this issue.
Id
.
June 14, 1996.
As a result of an inspection on June 14, 1996, RWD received violation
notice # 1996-1002. C-6 at Appendix U; C-25 at Operator’s Exhibit 2;
see
C-21 at 55, 161
(Hilbert testimony). The site had received heavy rainfall, which generated difficulties with
leachate management.
See
C-21 at 115-17. The violation notice addressed issues including
inadequate stormwater controls, failure to comply with leachate recirculation requirements, and
improper use of alternative daily cover. C-6 at Appendix U, C-25 at Operator’s Exhibit 2;
see
C-
20 at 234-237 (January 24, 2007). Disposition of this action resulted from a May 5, 1997 permit
modification allowing addition of leachate storage capacity over time. C-25 at Operator’s
Exhibit 2.
July 29, 1998.
As a result of an inspection on July 29, 1998, RWD received violation
notice # OCSWMD-1998-1001. C-6 at Appendix U; C-25 at Operator’s Exhibit 2. The notice
indicated that RWD had not installed gas monitoring probe GP14 and had failed to report the
detection of methane at levels greater than 50% of the lower explosive level.
Id
. A permit
modification approved August 27, 1999 approved deletion of GP14. C-25 at Operator’s Exhibit
2. A verified correction on February 9, 1999 disposed of the methane issue.
Id
.
October 29, 1998.
As a result of an inspection on October 29, 1998, RWD received
violation notice # OCSWMD-1998-1002. C-6 at Appendix U; C-25 at Operator’s Exhibit 2.
That notice referred to the violations listed in the previous notice and also raised stormwater
18
runoff erosion.
Id
. A correction verified on February 9, 1999 disposed of the erosion issue. C-
25 at Operator’s Exhibit 2.
November 1, 1999.
As a result of an inspection on November 1, 1999, RWD received
violation notice # L-1999-OG-02. C-11 (December 16, 1999 letter); C-6 at Appendix U; C-25 at
Operator’s Exhibit 2. The notice referred to lateral expansion of the facility without permitting
or siting approval, leachate flows into the waters of the state, and failure to comply with
requirements relating to litter fencing.
Id
. A permit modification approved February 8, 2000
disposed of the expansion issue. C-25 at Operator’s Exhibit 2. Both the leachate and litter
fencing issues were disposed of with a correction verified on December 8, 1999.
Id
.
March 30, 2000.
As a result of an inspection on March 30,2000, RWD received
violation notice # L-2000-OG-1. C-6 at Appendix U; C-25 at Operator’s Exhibit 2. The notice
referred to improper construction of a berm, failure to notify of methane levels, failure to submit
required reports, and allowing refuse to remain uncovered from a previous operating day.
Id
. A
permit modification approved June 2, 2000 disposed of the berm construction issue. C-25 at
Operator’s Exhibit 2. Beginning by October 23, 2000, regular notification of gas levels and
regular filing of reports disposed of those two issues.
Id
. A correction verified April 24, 2000,
disposed of the issue of uncovered refuse.
Id
.
October 29, 2001.
As a result of an inspection on October 29, 2001, RWD received an
administrative citation warning notice. C-6 at Appendix U; C-25 at Operator’s Exhibit 2. The
notice first referred to failure daily to apply cover to all uncovered refuse at the end of the
operating day. It also referred to failure to contain litter from the site by the end of each
operating day.
Id
. A correction verified on November 29, 2001 disposed of both issues. C-25 at
Operator’s Exhibit 2.
March 20, 2003.
As a result of an inspection on March 20, 2003, RWD received
administrative citation # OC-2003-1001. C-6 at Appendix U; C-25 at Operator’s Exhibit 2;
see
County of Ogle v. Rochelle Waste Disposal, Clyde A Gelderloos, and City of Rochelle, AC 03-
30 (May 19, 2003). The citation alleged that the respondents had operated the landfill resulting
in refuse in standing or flowing waters. C-6 at Appendix U; C-25 at Operator’s Exhibit 2;
see
415 ILCS 5/21(o)(1) (2006). The citation also alleged that RWD has allowed refuse to remain
uncovered from a previous operating day. C-6 at Appendix U; C-25 at Operator’s Exhibit 2;
see
415 ILCS 5/21(o)(5) (2006). The citation also alleged that RWD had failed to collect and
contain litter from its site by the end of each operating day. C-6 at Appendix U; C-25 at
Operator’s Exhibit 2;
see
415 ILCS 5.21(o)(12) (2006). RWD failed to timely appeal the citation
and was directed to pay the statutory fine of $1,500. C-25 at Operator’s Exhibit 2; C-21 at 83;
see
County of Ogle v. Rochelle Waste Disposal, Clyde A Gelderloos, and City of Rochelle
, AC
03-30 (Nov. 6, 2003). Disposition of the issues occurred with a correction verified on April 21,
2003. C_25 at Operator’s Exhibit 2.
July 3, 2003.
As a result of an inspection on July 3, 2003, RWD received an
administrative warning notice regarding “operation of gas collection system prior to completion
of all equipment and reports.” C-25 at Operator’s Exhibit 2;
see
C-6 at Appendix U. A
correction verified on August 6, 2003 disposed of this issue.
Id
.
19
May 7, 2004.
As a result of an inspection on May 4, 2004, RWD received an
administrative citation warning notice. C-6 at Appendix U; C-25 at Operator’s Exhibit 2. The
notice raised issues of site surface drainage management, operation of surface water control
structures, surface water drainage problems, and inadequate intermediate cover.
Id
. The first
three issues were disposed of by a correction verified on July 20, 2004, and the intermediate
cover issue was disposed of by a correction verified on October 8, 2004. C-25 at Operator’s
Exhibit 2.
June 15, 2004.
As a result of an inspection on June 15, 2004, RWD received violation
notice # L-2004-OG-001. C-6 at Appendix U; C-25 at Operator’s Exhibit 2.;
see
C-21 at 87-95,
117-19, 142, 161-62 (noting rainfall). The notice addressed a number of violations: leachate
entering an unlined sedimentation basin, leachate flows leaving the confines of the landfill,
recalculating leachate without a permit, failure to apply intermediate cover, failure to grade
intermediate cover to facilitate drainage of runoff, and failing to maintain intermediate cover. C-
25 at Operator’s Exhibit 2;
see
C-20 at 242-44 (January 24, 2007 transcript). Each of these
violations was disposed of by a correction verified on either July 20, 2004, September 3, 2004,
October 8, 2004, or March 22, 2005.
Id
.
April 11, 2005.
As a result of an inspection by the Agency on April 11, 2005, RWD
received violation notices # M-2005-01024 and # M-2005-01025. C-25 at Operator’s Exhibit 2.
The notice referred to violations related to maintaining groundwater monitoring well G113 and
to not following procedures for sampling groundwater.
Id
. With regard to those violations, the
Agency accepted a compliance commitment letter on October 21, 2005 and performed field
verification of compliance on January 10, 2006.
Id
.; C-21 at 121-22.
July 7, 2005.
As a result of an inspection by the Agency6, RWD received violation
notice # M-2005-01025. C-6 at Appendix U; C-21 at 102. The notice referred to violations
related to inconsistencies in boring logs for wells. C-21 at 103.
April 20, 2006.
As a result of inspection, RWD received an administrative warning
notice. C-6 at Appendix U; C-20 at 250-51 (January 24, 2007 transcript); C-21 at 51. A
continuous monitoring device for detection of methane became unplugged in the shop building at
the site. C-21 at 51-52.
July 28, 2006.
As a result of an inspection on July 28, 2006, RWD received violation
notice L-2006-OG02. C-6 at Appendix U. The notice refers both to failure to inspect loads of
contaminated soil to be used as daily cover and to failure to maintain a log of these inspections.
Id
.; C-21 at 72-73, 122-24. Although RWD’s compliance commitment letter was rejected on
October 31, 2006, a correction verified on November 14, 2006 disposed of the violation notice.
C-6 at Appendix U; C-21 at 122-23.
September 15, 2006.
As a result of an inspection on September 15, 2006, RWD
received violation notice # L-2006-OG005. C-6 at Appendix U. The notice addressed a number
of violations: use of construction and demolition debris that had not been shredded as alternate
daily cover, use of material with varying amounts of construction and demolition debris as
20
alternate daily cover, application of alternate daily cover leaving voids and open passages to
waste, and use of daily cover that did not maintain its integrity to prevent vector and odor
nuisance. C-6 at Appendix U; C-20 at 252-53 (January 24, 2007 transcript); C-21 at 69-77.
After a correction verified on November 14, 2006, acceptance of a compliance commitment
agreement on January 5, 2007 disposed of this notice. C-6 at Appendix U; C-21 at 124-26.
STATUTORY BACKGROUND
Section 39.2(a) of the Act provides in pertinent part that
[t]he county board of the county or the governing body of the municipality, as
determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove
the request for local siting approval for each pollution control facility which is
subject to such review. An applicant for local siting approval shall submit
sufficient details describing the proposed facility to demonstrate compliance, and
local siting approval shall be granted only if the proposed facility meets the
following criteria:
* * *
(ii) the facility is so designed, located and proposed to be operate that the
public health, safety and welfare will be protected; [and]
* * *
(vi) the traffic patterns to or from the facility are so designed as to
minimize the impact on existing traffic flows[.]
* * *
The county board or the governing body of the municipality may also consider as
evidence the previous operating experience and past record of convictions or
admissions of violations of the applicant (and any subsidiary or parent
corporation) in the field of solid waste management when considering criteria (ii)
and (v) under this Section. 415 ILCS 5/39.2(a) (2006).
Section 39.2(e) of the Act provides in pertinent part that,
[i]n granting approval for a site the county board or governing body of the
municipality may impose such conditions as may be reasonable and necessary to
accomplish the purposes of this Section and as are not inconsistent with
regulations promulgated by the Board. 415 ILCS 5/39.2(e) (2006).
BURDEN OF PROOF AND STANDARD OF REVIEW
In reviewing the local siting authority’s imposition of a special condition, the Board must
determine whether the special condition to a site approval is reasonable and necessary to
accomplish the purposes of Section 39.2 of the Act and not inconsistent with Board regulations.
Peoria Disposal Co. v. Peoria County Board, PCB 06-184, slip op. at 6 (Dec. 7, 2006), citing 415
ILCS 5/39.2(e) (2004);
see
415 ILCS 5/39.2 (2006). “When the issue is whether a condition is
necessary to accomplish the purpose of a Section 39.2(a) citing criterion, the Board must
determine whether the local government’s decision to impose the condition is against the
21
manifest weight of the evidence.” Waste Mgmt. of Ill., Inc. v. Will County Board, PCB 99-141,
slip op. at 3 (Sept. 9, 1999) (citation omitted),
aff’d sub nom
. Will County Board v. PCB, 319 Ill.
App 3d 545, 747 N.E.2d 5 (3rd Dist. 2001).
“A decision is against the manifest weight of the evidence if the opposite result is clearly
evident, plain, or indisputable from a review of the evidence.” Fairview Area Citizens Taskforce
v. PCB, 198 Ill. App. 3d 541, 550, 555 N.E.2d 1178, 1184 (3rd Dist. 1990) (citation omitted).
The Board is not in a position to reweigh the evidence, but it must determine whether the
decision of the City Council is against the manifest weight of the evidence.
Id
. (citations
omitted). The petitioner bears the burden of proving that the conditions are not necessary to
accomplish the purposes of the Act and therefore were imposed unreasonably. IEPA v. PCB,
118 Ill. App. 3d 772; 780, 455 N.E.2d 188, 194 (1st Dist. 1983); 415 ILCS 5/40.1(a) (2006); 35
Ill. Adm. Code 107.506. The Board has authority to modify conditions imposed by the local
siting authority to the extent that they are not supported by the record or would be inconsistent
with the purposes of the Act.
See
Browning Ferris Industries of Illinois v. Lake County Board of
Supervisors and IEPA, PCB 82-101, slip op. at 14-15 (Dec. 2, 1982).
SECTION 39.2 CRITERIA
RWD states that the Council did not impose special conditions with regard to its findings
on criteria (iv), (v), (vii), (viii), and (ix). RWD Brief at 6;
see
415 ILCS 5/39.2(a) (2006). RWD
notes that, although the Council imposed conditions with regard to criteria (i) and (iii), those
specific Special Conditions 36 and 37 are not contested in this proceeding. RWD Brief at 6.
Consequently, the contested conditions pertain only to criteria (ii) and (vi).
Id
.
Below, the Board separately addresses criteria (ii) and (vi), each of the conditions
imposed by the Council with regard to them, and the parties’ arguments on those issues.
Criterion (ii)
Section 39.2(a)(ii) of the Act provides that an applicant must demonstrate compliance
with, and local siting approval shall be granted only if the proposed facility meets, the criterion
that “the facility is so designed, located and proposed to be operated that the public health, safety
and welfare will be protected.” 415 ILCS 5/39.2(a)(ii) (2006).
RWD’s General Arguments
Generally, RWD argues that data in its application “establishes that the proposed
expansion complies fully with Criterion (ii).” RWD Brief at 8. RWD further argues that the
record in this case shows that its application for a proposed expansion “demonstrated compliance
with all of the siting criteria of Section 39.2(a)
without
the Special Conditions.” RWD Brief at 7
(emphasis in original). RWD claims that the eight contested conditions are not reasonable, are
not necessary to achieve compliance with the Act, are not supported by the record, are not
consistent with Board regulations, and are contrary to the Host Agreement executed by RWD
and the City.
Id
. at 1, 7-8, citing Waste Mgmt. of Ill., Inc. v. Will County Bd.
, PCB 99-141, slip
22
op. at 1 (Sept. 9, 1999),
aff’d sub nom
. Will County Bd. v. PCB and Waste Mgmt. of Ill., Inc.,
319 Ill. App. 3d 545, 548 (3rd Dist. 2001).
Location.
RWD claims that its application shows that land use in the area surrounding
its proposed expansion is primarily agricultural and planted with row crops. RWD Brief at 8,
citing C-1 at 2.2-3. RWD argues that its application demonstrates that “[t]he nearest airport to
the proposed expansion is a municipal airport that is over 10,000 feet from the site.” RWD Brief
at 8, citing C-1 at 2.1-4;
see
49 U.S.C. 44718(d) (limiting construction of landfills), 35 Ill. Adm.
Code 814.302(c) (providing airport safety requirements); C-2 at Appendix F.1 (Airports). RWD
further claims that its application shows that “[t]he proposed expansion will be located more than
500 feet from all occupied dwellings, schools, retirement homes, hospitals, or like institutions
unless written permission for a closer distance from the owner is provided prior to permit
approval.” RWD Brief at 9-10, citing C-1 at 2.1-14;
see
35 Ill. Adm. Code 811.302(d),
814.302(a). RWD also states that its application shows that the proposed expansion will be
screened from view along specified roads “by a vegetated earthen berm or fence with a total
height of no less than eight feet.” RWD Brief at 9, citing C-1 at 2.1-13;
see
35 Ill. Adm. Code
811.302(c).
RWD further claims that its application shows that the proposed expansion will not affect
any potentially endangered or threatened species. RWD Brief at 9, citing C-1 at 2.1-10;
see
35
Ill. Adm. Code 811.102(d); C-2 at Appendix F.7 (Endangered Species). RWD further argues
that its application shows that archaeological surveys of the existing landfill and the proposed
expansion area “found no evidence of materials” protected by the Illinois State Agency Historic
Resources Preservation Act. RWD Brief at 9, citing C-1 at 2.1-10;
see
20 ILCS 3420/1
et seq
.
(2006). In addition, RWD states that its application shows that “[d]evelopment of the expansion
area will not proceed without confirmation from the I[llinois] H[istoric] P[reservation] A[gency]
that there are no significant historical, architectural, or archeological resources located in the
proposed expansion area.” C-1 at 2.1-10;
see
35 Ill. Adm. Code 811.102(c), RWD Brief at 9; C-
2 at Appendix F.6 (Historic and Natural Areas).
Geology and Hydrogeology.
RWD states that its application includes an analysis of the
site’s geology and hydrogeology based upon “a total of 73 continuously sampled boring
locations, and installation of 66 monitoring wells.” RWD Brief at 10, citing C-1 at 2.2-1
et seq
.
(Hydrogeologic Analysis);
see
C-20 at 206 (Drommerhausen testimony);
see also
C-3 at
Appendix G.1 (Boring Logs); C-3 at Appendix G.2 (As-Built Diagrams). RWD argues that its
application shows that its site “features a low-permeability cohesive soil (Tiskilwa Formation)
which is present across the site and which will separate the proposed landfill from the uppermost
aquifer.” RWD Brief at 10, citing C-1 at 2.2-1
et seq
. RWD further argues that its application
shows that “[t]he average thickness of the clay between the base of the liner and the uppermost
aquifer is approximately 23.5 feet across the expansion area.” RWD Brief at 10, citing C-1 at
2.2-47. RWD claims that its geologic and hydrogeologic analyses demonstrate that “this soil
will effectively restrict vertical and horizontal movement of groundwater.” RWD Brief at 10,
citing C-1 at 2.2-47.
RWD claims that the record shows that, within 200 feet of its landfill site, “[t]here are no
known faults that have displaced during the Holocene Epoch.” RWD Brief at 8, citing C-1 at
23
2.1-7. RWD further claims that “[t]he proposed expansion site is not located within a seismic
impact zone that has a 10% chance of exceeding .10 g in 250 years.” RWD Brief at 9, citing C-1
at 2.1-8;
see
C-1 at 2.2-21-22 (Seismic Risk), C-2 at Appendix F.4 (Seismic Impact Zone).
RWD further claims that the site’s design includes “a safety factor greater than 1.3 against slope
failure under seismic conditions.” RWD Brief at 9, citing C-1 at 2.1-8;
see
35 Ill. Adm. Code
811.304(d). In addition, RWD argues that the proposed facility boundary includes no reported
karst areas or areas of known underground mining. RWD Brief at 8-9, citing C-1 at 2.1-7;
see
C-
1 at 2.2-21 (Coal Mining), C-3 at Appendix G.6 (Coal Mine Directory). RWD further claims
that “[t]here are no documented unstable areas beneath the excavation.” RWD Brief at 8, citing
C-1 at 2.1-7.
Water Safety.
RWD claims that its application shows that “[t]he expansion area is not
located within the FEMA [Federal Emergency Management Agency] 100-year floodplain.”
RWD Brief at 8, citing C-1 at 2.1-5;
see
415 ILCS 5/39.2(a)(iv) (2006), 35 Ill. Adm. Code
811.102(b), C-2 at Appendix F.2 (Floodplain). RWD states that a wetland determination and
delineation have been performed for the area of the proposed expansion. RWD Brief at 8, citing
C-1 at 2.1-6. RWD further states that “the expansion has been designed and located to minimize
disturbance potential to wetland areas.” RWD Brief at 8, citing C-1 at 2.1-6;
see
35 Ill. Adm.
Code 811.102(e); C-2 at Appendix F.3 (Wetlands). RWD claims that the record shows that the
area of the proposed expansion “does not encompass any rivers designated for protection under
the Wild and Scenic Rivers Act.” RWD Brief at 9, citing C-1 at 2.1-9;
see
35 Ill. Adm. Code
811.102(a), C-2 at Appendix F.5 (Wild and Scenic Rivers).
RWD argues that the record shows that “[t]he proposed expansion will not violate any
area-wide or state-wide water quality management plan.” RWD Brief at 9, citing C-1 at 2.1-11;
see
35 Ill. Adm. Code 811.102(f). RWD states that “the extensive stormwater management
features constructed during landfill development will reduce the potential for downstream
flooding and improve the quality of runoff when compared to existing conditions.” RWD Brief
at 9, C-1 at 2.1-11;
see
C-1 at 2.4-1-2.4-19 (Stormwater Management Plan). RWD also states
that the record shows that there are no community water supply wells situated within 2,500 feet
of the waste boundary. RWD Brief at 9, citing C-1 at 2.1-12;
see
415 ILS 5/14.2, 14.3 (2006)
(setback zones), 35 Ill. Adm. Code 811.302(a), 814.302(a); C-1 at 2.2-9-2.2-10; C-1 at Drawing
G-2 (Water Well Location Map); C-3 at Appendix G.5 (Regional ISGS and ISWS Water Well
Logs). RWD also argues that “[n]o sole source aquifer or regulated recharge area is located
within the proposed expansion site.” RWD Brief at 9, citing C-1 at 2.1-13;
see
415 ILCS
5/39.2(a)(ix) (2006), 35 Ill. Adm. Code 811.302(b); C-2 at Appendix F.8 (Sole-Source
Aquifer/Regulated Recharge Area). RWD argues that its proposed groundwater monitoring
network will consist of 34 wells. RWD Brief at 10, citing C-1 at 2.8-1. Finally, RWD argues
that this system will “adequately verify that groundwater resources are not being impacted by the
landfill.” RWD Brief at 10, citing C-1 at 2.8-1
et seq
. (Monitoring).
Operating Procedures/Litter Control.
RWD claims that its application “establishes
that the site will feature a number of operating procedures to minimize and control litter.” RWD
Brief at 11, citing C-1 at 2.6-6. First, RWD states that “[i]ncoming refuse vehicles will be
required to be fully-enclosed or to have covers or tarps to prevent waste from blowing out of the
vehicles.” RWD Brief at 11, citing C-1 at 2.6-6. Second, RWD claims that it will keep the
24
active disposal area as small as possible and will cover it at the end of each day with material
such as soil, synthetic covers, and alternate materials as approved by the FDA. RWD Brief at
11, citing C-1 at 2.6-6. Third, RWD indicates that “[t]he entire facility will be surrounded with a
perimeter fence and exterior berm to collect litter that may escape beyond the active face.”
RWD Brief at 11, citing C-1 at 2.6-6. Fourth, RWD states that it will employ temporary litter
fences as additional protection near the active face. RWD Brief at 11, citing C-1 at 2.6-6. Fifth,
RWD indicates that it will suspend operations under specified conditions: if sustained winds
reach 35 miles per hour, in the event of a tornado warning alert, or if the City determines that the
operator has not been or is not able to control blowing litter. RWD Brief at 11, citing C-1 at 2.6-
6.
In addition, RWD states that “[l]aborers will patrol the facility and the surrounding
property to collect any litter that escapes the active fill area.” RWD Brief at 11, citing C-1 at
2.2-6. RWD further states that laborers will daily inspect public rights-of-way along specified
routes in the vicinity of the landfill and areas adjacent to those rights-of-way. RWD Brief at 11,
C-1 at 2.2-7. RWD’s application also provides that “[l]itter collection activities on these routes
will be undertaken on an as needed basis, at a minimum of once per week, or at the request of the
City.” C-1 at 2.2-7.
Expert Testimony.
RWD argues that Daniel Drommerhausen and Devin Moose
testified as expert witnesses at the public hearing that the proposed expansion complies with the
requirements of criterion (ii). RWD Brief at 8. RWD further argues that Mr. Charles Norris,
testifying on behalf of the objector CCOC, declined to render an opinion as to whether the
application satisfies criterion (ii).
Id
.
Drommerhausen Testimony.
RWD argues that expert testimony offered by Mr. Daniel
Drommerhausen at the local siting hearing demonstrates that the proposed expansion complies
with the requirement of criterion (ii) to protect the public health, safety, and welfare. RWD Brief
at 8;
see
C-20 at 198-248 (January 23, 2007 transcript); C-20 at 5-92 (January 24, 2007
transcript). RWD states that “Mr. Drommerhausen is a profession geologist at Shaw
Environmental who holds a master’s degree in hydrogeology.” RWD Brief at 12, citing C-20 at
199. RWD notes that Mr. Drommerhausen testified concerning his geologic and hydrogeologic
analysis of the site. RWD Brief at 12.
RWD states that Mr. Drommerhausen’s testimony included “a detailed explanation of the
geology of the landfill site and the role of geology on the landfill’s design.” RWD Brief at 12,
citing C-20 at 200-05, 214-15;
see also
C-25 at Exhibit 9 (Power Point presentation). RWD
states that this role includes the identifying potential contamination migration pathways and the
design of appropriate groundwater monitoring systems. RWD Brief at 12, citing C-20 at 200-05,
214-15;
see also
C-25 at Exhibit 9. RWD states that Mr. Drommerhausen also “discussed the
boring sampling and analysis performed to ascertain whether the site is appropriate for the
proposed landfill expansion.” RWD Brief at 12, citing C-20 at 205-8;
see also
C-25 at Exhibit 9.
RWD also states that Mr. Drommerhausen specifically addressed soil sampling, rock core
sampling, establishing the type and quality of soil and rock at the site, and determining whether
there is fracturing in the rock there. RWD Brief at 12, citing C-20 at 209-13;
see also
C-25 at
Exhibit 9.
25
RWD notes that Mr. Drommerhausen’s testimony “described the extensive testing that
was done to determine conductivity at the site.” RWD Brief at 12, citing C-20 at 216-26;
see
also
C-20 at 2.2-35-37 (In-Situ Hydraulic Conductivity Testing), C-25 at Exhibit 9. RWD also
states that Mr. Drommerhausen described potentiometric monitoring performed at the site.
RWD Brief at 12, citing C-20 at 235-36;
see also
C-25 at Exhibit 9. RWD states that, in
summarizing his analysis of the site, Mr. Drommerhausen stated that its “formation will
effectively restrict vertical and horizontal movement of groundwater.” RWD Brief at 12, C-20 at
237;
see
C-1 at 2.2-47 (Geologic and Hydrogeologic Conclusions). He further testified that “the
geology and hydrogeology at the site is uniform and predictable, and is consistent with findings
that have been approved and reviewed by IEPA at the existing permitted landfill.” RWD Brief at
12, C-20 at 237. RWD concludes by citing Mr. Drommerhausen’s testimony that, “even using
very conservative parameters, the modeling done for the site showed that the proposed design
would be in compliance with IEPA standards for groundwater impact.” RWD Brief at 12-13,
citing C-20 at 241;
see also
C-25 at Exhibit 9.
Moose Testimony.
RWD argues that expert testimony offered by Mr. Devin Moose at
the local siting hearing demonstrates that the proposed expansion complies with the requirement
of criterion (ii) to protect the public health, safety, and welfare. RWD Brief at 8;
see
C-20 at
123-97 (January 24, 2007 transcript). RWD states that “Mr. Moose is a civil engineer with more
than 20 years of experience in landfill design, who is the director of the St. Charles, Illinois
office of Shaw Environmental.” RWD Brief at 13;
see
C-25 at Exhibit 10 (Power Point
presentation).
RWD argues that Mr. Moose’s testimony demonstrates that RWD’s application
“complies with the relevant regulations pertaining to seismic impact zones, flood plains,
wetlands, endangered species and setback requirements.” RWD Brief at 13, citing C-20 at 146-
50; C-25 at Exhibit 10; C-1 at 2.1-1-14. RWD states that Mr. Moose also testified regarding the
site’s geology and RWD’s proposed composite liner system consisting of “three feet of
compacted clay beneath a 60-mil high-density polyethylene (HDPE) liner.” RWD Brief at 13,
citing C-20 at 154-55; C-25 at Exhibit 10, C-1 at 2.3-4 (Design Report). RWD states that Mr.
Moose also testified with regard to an additional engineered clay liner, the final cover system,
and wells for removal of landfill gas. RWD Brief at 13, citing C-20 at 161-62, 167-72;
see also
C-25 at Exhibit 10. RWD also states that Mr. Moose noted an evaluation showing that the
landfill will generate no groundwater impact 100 feet from the waste boundary 100 years after
closure. RWD Brief at 13, citing C-20 at 172-73; C-25 at Exhibit 10 (screen 51); C-1 at 2.7-1
et
seq
. (Groundwater Impact Evaluation). RWD further states that Mr. Moose emphasized the
installation of a groundwater monitoring well program for the detection of releases. RWD Brief
at 13, citing C-20 at 173-75; C-25 at Exhibit 10 (screens 52-53). Concluding, RWD states that
Mr. Moose testified that the proposed expansion includes exhuming unlined landfill Unit 1 and
placing the waste there into a lined cell in the expansion area. RWD Brief at 13-14, citing C-20
at 177-79.
Norris Testimony.
RWD notes that Mr. Charles Norris was retained by and testified on
behalf of CCOC. RWD Brief at 14;
see
C-20 at 251-327 (January 25, 2007 transcript); C-20 at
5-210 (January 26, 2007 transcript). RWD claims that Mr. Norris is not an engineer and that the
26
offered “no opinion concerning the engineered components of the proposed expansion.” RWD
Brief at 14, citing C-20 at 255-56, 259 (January 25, 2007 transcript);
see also
C-25 at CCOC
Exh. 5 (Norris resume). RWD argues that, “[m]ost importantly, Mr. Norris testified that he
would not render an opinion as to whether the proposed expansion satisfies Criterion (ii).” RWD
Brief at 14, citing C-20 at 156 (January 26, 2007 transcript).
In addition, RWD notes that Mr. Norris expressed the opinion that Unit 1 could be safely
managed without exhuming waste from it and encouraged the City Council to consider
alternatives to exhumation. RWD Brief at 14, citing C-20 at 324-25 (January 25, 2007
transcript). RWD further notes that Mr. Norris made no recommendation to the City Council for
dealing with Unit 1. RWD Brief at 14, citing C-20 at 195 (January 26, 2007 transcript).
RWD’s Conclusion on Expert Testimony.
RWD concludes by arguing that, when one
considers the Application itself and the expert testimony offered in support of it, they
conclusively demonstrate that RWD meets criterion (ii) “without the need for imposition of the
Special Conditions at issue in this appeal.” RWD Brief at 14.
City of Rochelle’s General Arguments
The City argues “that its Application, prepared by Shaw Environmental, Inc., and
supported by lengthy, detailed and persuasive testimony, provides a comprehensive, thorough
and wholly adequate plan for a small, environmentally sound and neighbor-friendly landfill,
without the imposition of the challenged conditions.” City Resp. at 2. The City claims that the
contested conditions originated not from evidence at hearings but instead from a report by
Patrick Engineering, Inc, a technical consultant retained by the City Council.
Id
., citing C-251 –
C-270 (review of application and report). The City states that this report “was submitted to the
City Council after the close of evidence,” that “[n]o one from the Patrick firm testified,” and
there “there was no opportunity to cross-examine a representative from the Patrick firm.” City
Resp. at 2. The City argues that the hearing officer in his findings of fact, conclusions of law,
and recommendations adopted the conditions proposed by Patrick Engineering “with no analysis
as to what evidence in the record supported them.”
Id
.,
see
C-243 – C-248 (recommending
imposition of 37 conditions). The City further argues that the City Council then adopted the
conditions “either
verbatim
, or with minor modifications, again with no analysis as to any
evidentiary foundation.” City Resp. at 2.
The City expresses the belief “that the relief sought by the Operator with respect to all of
the conditions in question . . . should be granted.” City Resp. at 1. The City argues that some of
the contested conditions could have been drafted in a manner consistent with the evidence in the
record and with the concerns that generated them.
Id
. The City further argues that, as the City
Council imposed them, “the challenged conditions find no support in the record, are not
necessary for any of the required criteria to be met, and should be stricken.”
Id
.
Rochelle City Council’s General Arguments
The City Council argues that “the evidence in the record demonstrates that Special
Conditions 8, 26 and 28 as written are reasonable and necessary to accomplish the purposes of
27
the Act and are not inconsistent with Board regulations.” Council Resp. at 2. The City Council
further argues that “the evidence warrants the modification of Special Conditions 13, 23, 33, and
34” as set forth in the City Council’s response brief.
Id
. The City Council further argues that the
evidence warrants deletion of Special Condition 22.
Id
. If the Board determines that it lacks
authority to modify the contested condition, however, “then the City Council concedes that the
evidence in the record does not support Special Conditions 13, 22, 23, 33 and 34 as written, and
would acknowledge that in such case these five conditions should be stricken.”
Id
. at 15.
Special Condition 8
RWD’s Arguments.
RWD states that Special Condition 8 requires that
[t]he Operator shall, at a minimum, inspect on a daily basis the public
rights of way, and areas adjacent to these rights of way, from the landfill
facility gate North on Mulford Road and along Route 38 West to the
Interstate 39 interchange and Route 38 East through Creston to Woodlawn
Road. Litter collection along these rights of way shall be performed at
least once per week, and more often if the City Manager determines from
review of evidence that the Operator is responsible for the litter. RWD
Brief at 14-15, citing C-1658 (Rochelle City Council Resolution R07-10
approving expansion).
RWD further states that the Rochelle City Council imposed Special Condition 8 pursuant to its
consideration of criterion (ii) “as necessary and reasonable to accomplish the purposes of Section
39.2 of the Illinois Environmental Protection Act.” RWD Brief at 15;
see
415 ILCS 5/39.2
(2006); C-1656.
RWD argues that its application “delineates numerous, detailed operating procedures that
will minimize and control litter.” RWD Brief at 15, citing C-1 at 2.6-6;
see supra
p. 8 (Litter
Control). Specifically, RWD argues that laborers will daily inspect Mulford Road from the
landfill entrance north to Route 38 and will also inspect Route 38 west from Mulford Road to the
Interstate 39 interchange. RWD Brief at 16, citing C-1 at 2.6-7. RWD notes that Special
Condition 8 “expands the area for litter control to include all public rights of way and areas
adjacent to those rights of way, along Route 38 East through Creston to Woodlawn Road.”
RWD Brief at 16.
RWD emphasizes that Special Condition 35, which it has not contested, provides
that
[t]ransfer trailers going to and from the facility shall be contractually
obligated to do so utilizing Route 38 West of Mulford Road to the
Interstate 39 interchange. It shall also be the obligation of the Operator to
enforce such obligation. Video camera shall be installed at the existing
site entrance and at the proposed new entrance to monitor facility traffic
entering and leaving the expansion on Mulford Road. C-1661 (Rochelle
City Council Resolution R07-10 approving expansion).
28
RWD argues that “waste hauling cannot even occur along the expanded route required by
Special Condition 8.” RWD Brief at 16.
RWD states that, during the city council’s initial consideration of its application, one
council member addressed this condition. RWD Brief at 17. RWD suggests that this council
member justified the condition not as a way to make RWD responsible for litter attributable to
the operation of its landfill but instead “as a sort of public relations measure.”
Id
., citing C-22 at
83. Specifically, RWD cites the council member’s statement that
[i]t’s a perception issue
. I mean, anybody who drives [Route] 38, who’s
the first person you’re going to think of if you see a bunch of garbage out
there? You’re going to think of the landfill. You’re going to think of the
trucks that go to that landfill. That’s why they indeed have the onus on
them to keep it clean. RWD Brief at 17 (emphasis in original), citing C-22
at 83.
After RWD filed a motion for reconsideration of the City Council’s decision to impose
specified conditions (C-180-83), the City of Rochelle filed its response to that motion (C-146-
67). RWD claims that the City’s response states “that litter control was carefully considered in
the formulation of the Application.” RWD Brief at 15, citing C-155-56. RWD further claims
that “the City did not believe the additional litter control measures described in Special
Condition 8 were necessary.” RWD Brief at 15, citing C-155-56. RWD stresses the City’s
statement that “there was no testimony that the requirements [for litter control] set forth in the
[A]pplication were inadequate, and no testimony with respect to any necessity for additional
litter control [measures] . . . beyond those set forth in the [A]pplication and testified to by the
City’s witnesses.” RWD Brief at 15, citing C-155-56. On the basis of the City’s response to its
motion for reconsideration, RWD claims that “the City found there is no support in the record for
this condition.” RWD Brief at 15.
After RWD filed a motion for reconsideration of the City Council’s decision to impose
specified conditions (C-180-83), the City Council granted the motion and considered the request
to modify or delete those conditions. RWD Brief at 16;
see
C-23 at 2-6 (transcript of May 8,
2007 special council meeting). RWD claims that, in reconsidering Special Condition 8, one city
council member “stated that she believed it was a good idea to expand the area of required litter
patrol because it would show that the City wanted to be a ‘good neighbor’ to Creston.” RWD
Brief at 16, citing C-23 at 8-9. RWD further claims that another city council member supported
Special Condition 8 because of the operator’s history and a need to “hold their feet to the fire on
it.” RWD Brief at 16, citing C-23 at 9-10.
RWD argues that a third council member appeared to cast some doubt on the condition:
[m]y question is how – how would one determine that they’re respons –
that the operator or the transfer company is responsible for any particular
route? . . . [
Y]ou go on routes, which I do on a fairly regular basis, where
there is no – there are no trucks, there are no landfills and the trash is still
29
in the trees along those roads, and who makes that determination? . . . I
don’t know how all the trash on a certain route can deem to be the
responsibility of the operator of the site
.” RWD Brief at 16-17 (emphasis
in original), citing C-23 at 13-14.
RWD concludes its arguments by arguing that “the record contains no evidentiary
support for requiring the expanded litter control requirements imposed by Special Condition 8.”
RWD Brief at 17. Specifically, RWD claims that “[t]here is no evidence to show it is necessary
for compliance with Criterion (ii).”
Id
. RWD further claims that Special Condition 8 should be
deleted because it “is not necessary to accomplish the purposes of Section 39.2 of the Act and is
not consistent with the Board’s regulations.”
Id
., citing 415 ILCS 5/39.2 (2006).
City of Rochelle’s Arguments.
The City argues that its application includes a litter
control plan making the operator responsible for a number of specified duties. City Resp. at 3,
citing C-1 at 2.6-6 – 2.6-7. The City states that those duties include inspecting “public rights-of-
way and adjacent areas along Mulford Road from the landfill entrance to Route 38, and along
Route 38 from Mulford Road west to the Interstate 39 exchange, on at least a daily basis, with
litter collection activities along these routes undertaken as needed.” City Resp. at 3, citing C-1 at
2.6-6 – 2.6-7.
The City argues that Special Condition 8 requires inspections and litter collection in
addition to those described in the application. Specifically, the City argues that the condition
requires the operator to perform a daily inspection of Route 38 east from Mulford Road to
Woodlawn Road, to conduct litter collection at least weekly along the named rights-of-way, and
to conduct litter collection more frequently if the City Manager determines that the operator is
responsible for the litter. City Resp. at 3-4. The City further argues that, “[w]hile these
additional burdens do not seem significant, there is nonetheless nothing in the record that
supports the City Council’s finding that they are reasonable and necessary in order for the
requirements of Criterion (ii) to be met.”
Id
. at 4.
The City opines that concern with the operator’s operating history underlies the
requirements in Special Condition 8. City Resp. at 4. The City notes that the record includes a
document prepared by Stephen Rypkema, Director of the Ogle County Solid Waste Management
Department, and entitled “”Summary of Inspections and Apparent Violation Noted by Ogle
County Solid Waste Management Department during Inspections at the Rochelle Municipal
Landfill #2 Landfill April 1991 – December 2006.”
Id
., citing C-25 (Operator’s Exhibit #2);
see
C-6 at Appendix U (operating history). The City argues that, although it received lengthy
consideration at hearing, “[n]either Mr. Rypkema’s report nor any of the testimony about it
support the conclusion that there has been a significant litter problem at the landfill, or that litter
from the landfill would not be adequately controlled by the requirements set forth in the
Application.” City Resp. at 4, citing C-21 at 8-166 (testimony of operator’s engineering
manager).
The City argues that Mr. Rypkema’s summary appears to include only two violations
related to litter and attributable to the current operator. City Resp. at 4, citing C-21 at 110, C-25
(Operator’s Exhibit #2). The City also argues that, to the best of its recollection and review, “no
30
evidence that the landfill had allowed litter to blow onto the rights-of-way anywhere on Route
38, or that refuse trucks going to and from the landfill had caused a litter problem there.” City
Resp. at 4. The City concludes that the application contains requirements “sufficient to protect
the public health, safety and welfare from any litter problems originating from the landfill.”
Id
.
Rochelle City Council’s Arguments.
The City Council cites Section 39.2(a) of
the Act:
[t]he county board or the governing body of the municipality may also
consider as evidence the previous operating experience and past record of
convictions or admissions of violations of the applicant (and any
subsidiary or parent corporation) in the field of solid waste management
when considering criteria (ii) and (v) under this Section. Council Resp. at
6, citing 415 ILCS 5/39.2(a) (2006).
The City Council claims that “RWD has operated the Landfill since July 1995 through an
operating agreement with the City.” Council Resp. at 6, citing C-20 at E-1, E-16, 10-1. The City
Council states that the application includes information regarding RWD’s operating history.
Council Resp. at 6, citing C-6 at Appendix U, C-21 at 9-165 (February 8, 2007 transcript). The
City Council further states that he record includes a summary of landfill inspections by the Ogle
County Solid Waste Management Department. Council Resp. at 6, citing C-21 at 66;
see
C-25 at
Operator’s Exhibit 2 (1991-2006 summary). The City Council argues that “[b]ased on the
evidence, RWD has received at least eight administrative citations for ‘insufficient daily cover,’
‘intermediate cover,’ ‘uncovered refuse,’ ‘lack of litter fencing in above grade areas,’ ‘and ‘litter
from pervious operating day.’” Council Resp. at 6, citing C-6 at Appendix U, C-21 at 66, 69-72.
The City Council argues that an inspection report prepared by Mr. Stephen Rypkema and
addressing litter at the landfill recommended installation of perimeter fencing or hiring laborers
to pick up litter. Council Resp. at 6, citing C-21 at 85. The City Council claims that RWD has
not followed this recommendation by installing secondary fencing or by incorporating it into its
application. Council Resp. at 6-7, citing C-1 at 2.6-6. The City Council also claims that Mr.
Moose testified for the City on criterion (v) with regard to litter control. Council Resp. at 7,
citing C-20 at 219, 224 (January 24, 2007 transcript), C-20 at 50, 70 (January 25, 2007
transcript). The City Council argues that Mr. Moose characterized inspection and collection as
the bases of a successful litter control plan. Council Resp. at 7, citing C-20 at 70 (January 25,
2007).
The City Council argues that the application’s litter control plan does not include “daily
inspections and weekly litter collection for the public rights-of-way and adjacent area along
Route 38 east through Creston to Woodlawn Road.” Council Resp. at 5.;
see
C-1 at 2.6-7. The
City Council further argues that “[t]he evidence in the record about RWD’s operating history and
the litter control problems at the Landfill demonstrate the reasonableness and need for daily
inspections and weekly litter collection along these additional public rights of way and adjacent
areas.” Council Resp. at 5.
31
RWD Reply.
RWD expresses the belief that “the modifications proposed by the City
Council with respect to Special Conditions 13, 22, 23, 33, and 34 are supported by the evidence
and, if affirmed by the Board
as so modified
, would be proper.” Reply at 7 (emphasis in
original);
see
Council Resp. at 13-14. RWD states that “[i]n 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,” then it “is prepared to withdraw its appeal with respect to Special Condition 8.”
Reply at 7.
Special Condition 13
RWD’s Arguments.
RWD states that Special Condition 13 requires that
[t]he Operator shall complete the exhumation and redisposal of waste from
Unit 1 as soon as practicable, but in no event later than six (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 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. RWD Brief
at 18, citing C-1659 (Rochelle City Council Resolution R07-10 approving
expansion)
RWD states that Unit 1 accepted waste on a year-round basis from 1972 to 1995. RWD
Brief at 18. Because Special Condition 13 would limit exhumation to six months of the year,
RWD argues that the condition would require it to remove 276 months of waste in no more than
30 months over a six-year period.
Id
. RWD notes that “the months during which exhumation is
permissible under this Condition are those most likely to include substantial periods of inclement
weather.”
Id
.
In addition, RWD argues that its application provides plans and procedures for the
exhumation of Unit 1,
including the equipment to be used, the method of excavation of cover, the
proposed hours and times of year for the exhumation, the nature and
quantity of cover to be used, the procedures to be used in addressing any
hazardous waste that may be encountered, and air monitoring program,
stormwater management requirements, and other safety procedures. RWD
Brief at 18-19;
see generally
C-1 at 2.6-24-28 (Waste Relocation
Procedures).
RWD further argues that its application estimates that a period of five to ten years will be
necessary for the process of relocating Unit 1. RWD Brief at 19, citing C-1 at 2-6.24. RWD
also cites the testimony of Devin Moose that “the full exhumation process would take ‘on the
order of
about 10 years
’ to complete.” RWD Brief at 19 (emphasis in original), citing C-20 at
321-23 (January 24, 2007 transcript).
32
RWD further argues that the Host Agreement it negotiated with the City provides that
“exhumation is to be ‘commenced and completed within a commercially reasonable time,’ with
the City to bear the first $850,000.00 of the cost and the Operator to bear the balance of the
cost.” RWD Brief at 19,
see
C-2 at Appendix C-1 (Host Agreement). RWD claims that it and
the City negotiated this allocation of costs “on the parties’ clear and unequivocal agreement that
exhumation would be performed in a
commercially reasonable
timeframe.” RWD Brief at 19
(emphasis in original). RWD further claims that the Host Agreement requires the timing,
sequence, and manner of the exhumation to be determined through the agreement of RWD and
the City and subject to Agency requirements. RWD Brief at 19;
see
C-2 at Appendix C-1
.
RWD argues that, during the City Council meeting that culminated in imposing the
contested conditions, the City Council’s attorney expressed the assumption that Unit 1 contains
between two and two-and-one-half million yards of waste. RWD Brief at 20, citing C-22 at 87.
RWD further argues that the City Council’s attorney addressed exhumation by stating the
opinion that “[i]t would be
difficult to certainly complete it within six years
.” RWD Brief at 20
(emphasis in original), citing C-22 at 85. RWD further argues that the City’s Council attorney
also stated that “testimony at the hearing indicated that the applicant, the operator believed that a
10-year period was the appropriate period over which this waste could be exhumed and later then
redisposed.” RWD Brief at 20, citing C-22 at 86.
RWD states that, while commenting on a deadline for exhumation during the same City
Council meeting, one council member expressed the view that “our
paid
consultant and the
paid
Hearing Officer said six years, so why don’t we give them six.” RWD Brief at 20 (emphasis in
original), citing C-22 at 88. RWD characterizes this view as “a sentiment that surfaces
repeatedly during the course of the Council’s meetings.” RWD Brief at 20. In addition RWD,
claims that a second city council member supported this six-year deadline only with the
statement that “I like that idea.” RWD Brief at 20, citing C-22 at 88.
RWD states that, when the City Council reconsidered its decision to impose conditions,
one council member appeared to express doubts about the six-year deadline on exhumation.
See
RWD Brief at 20. That member stated that “
there’s not one person out here that has a clue how
long this is going to take. . . . We’re sitting here trying to make a decision that frankly we don’t
have the knowledge to make as far as how long it’s going to take.
”
Id
. (emphasis in original),
citing C-23 at 23. RWD argues that another council member expressed a similar view: “I don’t
have the expertise to make this decision, but the fact of the matter is
we don’t need it to be done
any faster to make it more risky to the health, safety, and welfare of the people. . . . We have to
allow some flexibility, because no one knows what we’re getting into when we get there
.” RWD
Brief at 20-21 (emphasis in original), citing C-23 at 27-28. RWD further argues that, although
the Council referred to the requirement in the Host Agreement that waste must be exhumed from
Unit 1 within a commercially reasonable time, the Council declined to incorporate that
requirement of commercial reasonableness into Special Condition 13.
See
C-23 at 29-32. RWD
claims that Council members referred to the standard as “undefined” (C-23 at 30) and as “too big
of a gray area” (C-23 at 29).
See
RWD Brief at 21.
33
RWD argues that Special Condition 13 wrests from the Agency “its regulatory authority
to determine the permit conditions under which exhumation and relocation of the waste will
occur.” RWD Brief at 21. RWD continues by claiming that “[i]t is the IEPA, not the City
Council, that should decide the methodology and timeframe for the exhumation.”
Id
. Noting
that two members of the City Council publicly expressed doubt about a six-year deadline, RWD
claims that “[t]he Council clearly lacks the expertise to make this type of determination.”
Id
.
Concluding its argument on Special Condition 13, RWD first argues that the six-year
deadline in that condition would increase its costs of operation and would jeopardize its ability to
expand the landfill. RWD Brief at 21. Second, RWD contends that the condition conflicts with
the terms of the parties’ Agreement, which the application includes.
Id
. Third, RWD argues that
the condition conflicts with the Board’s regulations by providing the City Council with authority
to set conditions on the exhumation process.
Id
. at 21-22. Fourth, RWD argues that the record
does not support imposition of the condition: “[t]he timeframe proposed in Condition 13 was not
established as a result of a risk assessment, feasibility study, or health and safety analysis, and
did not arise pursuant to any investigation into the nature, quality, and quantity of waste in Unit
1.”
Id
. at 19. Finally, RWD claims that the condition is not required to satisfy criterion (ii):
“”[p]ublic clamor for acceleration of the exhumation timeframe, unaccompanied by any
scientific or professional analysis establishing the necessity, or even the feasibility, of
performing such accelerated exhumation fails to establish that the acceleration is necessary to
protect the public health, safety and welfare.”
Id
.;
see
415 ILCS 5/39.2(a)(ii) (2006).
City of Rochelle’s Arguments.
The City argues that its Host Agreement with the
operator provides that the City may require in an application for approval of a landfill expansion
that the exhumation of Unit 1 be “completed within a commercially reasonable time.” City
Resp. at 5, citing C-2 at Appendix C-1. The City further argues that this standard “was intended
to take into account the significant uncertainties associated with exhumation, while still imposing
an obligation on the Operator to proceed as promptly as circumstances allow.” City Resp. at 5.
The City argues that its application includes a detailed plan for exhumation. City Resp.
at 6, citing C-1 at 2.6-24 – 2.6-28. The City notes Shaw Engineering’s anticipation “that
relocation of Unit 1 will be performed over a 5-10 year period.” City Resp. at 6, citing C-1 at
2.6-24. Specifically, the testimony of Devin Moose concludes that exhumation would take
approximately ten years. City Resp. at 6, citing C-20 at 323 (January 24, 2007 transcript). The
City argues that Mr. Moose was “[t]he only witness who testified regarding the time needed for
the exhumation.” City Resp. at 6.
The City argues that “[t]he evidence does not support a finding that exhumation can be
completed within six years, or that a firm deadline of six years is appropriate.” City Resp. at 6.
The City further argues that no testimony establishes that the exhumation requires only six years
and that any comments recommended such a deadline are “not based on [the] kind of informed,
expert analysis that would render them competent or credible.”
Id
. at 7. The City further argues
that allowing the operator to seek an extension for good cause does not “substitute for the
missing evidence, because it does not provide any standards for the City Council’s
determinations as to what constitutes ‘good cause.’”
Id
.
34
Rochelle City Council’s Arguments.
The City Council states that the application
provides detailed procedures for exhuming waste from Unit 1 of the landfill. Council Resp. at 9,
citing C-1 at 2.6-24 – 2.6-28. The City Council further states that the report of Shaw
Environmental anticipates that completing exhumation will require five to ten years. Council
Resp. at 10, citing C-1 at 2.6-24. The City Council claims that “Mr. Moose, the only witness
who testified about the timing of the exhumation of the waste from Unit 1, also testified that the
exhumation process would take ‘about 10 years.’” Council Resp. at 10, citing C-20 at 321-23
(January 24, 2007 transcript). The City Council claims that “there was no other credible
information introduced into evidence on the issue of the timing of the exhumation process” and
that any public comment proposing less time for exhumation “was not based on reliable
information.” Council Resp. at 10. The City Council also claims that the Host Agreement
“provides that the exhumation be commenced and completed within a commercially reasonable
time.”
Id
., citing C-2 at Appendix C-1 (Host Agreement ¶7.4). The City Council does not
dispute that the record supports a ten-year period for exhuming and relocating waste from Unit 1
and states that this condition should be modified accordingly. Council Resp. at 10;
see id
. at 13-
14 (proposed modification).
RWD’s Reply.
RWD notes that the City has conceded that Special Condition 13 is not
supported by the record and should be struck. Reply at 3, citing City Brief at 1. RWD further
notes that the City Council concedes that only Mr. Moose, who testified that exhumation would
take approximately ten years, provided credible evidence on the time required to exhume Unit 1
of the landfill. Reply at 3, citing Council Resp. at 10. RWD states that the City Council
proposed amending Special Condition 13 “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 issued
for the expansion, except for good cause shown.” Reply at 3, citing Council Brief at 10, 13-14.
RWD claims that the City Council’s proposed modification of Special Condition 13 “would alter
the condition such that it would thereby enjoy at least minimal support in the record.” Reply at
3. RWD argues that the Board should accept the amended Special Condition 13 as proposed by
the City Council.
Id
., citing Council Resp. at 13-14.
Special Conditions 22 and 23
RWD’s Arguments.
RWD states that Special Condition 22 requires that
[t]he plan of operation shall include the construction of operational screening
berms of between six (6) and eight (8) feet in height along the Southern edge and
partially along the East and West edges of operating cells to help block the
operations from view from Creston Road as well as help contain litter and reduce
noise impacts. The Operator shall propose, and the City Manager shall consider
for approval, the placement and limits of the operational berms prior to each cell’s
development. Final approval must be obtained prior to new cell construction.
The City Manager shall consider the height of the active face, the distance from
the site boundary, and the presence of other visual barriers (such as Unit 2) and
the effectiveness of other litter and noise control strategies (such as litter fences
and permanent perimeter berms) in making its determination. C-1660.
35
RWD also states that Special Condition 23 requires that
[p]erimeter 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 feet in advance of the Easternmost edge of the cell being
constructed. By way of example, prior to completion of Cell 3’s liner, the
Southern berm along Creston Road shall be constructed from E 4,200 to E 6,500,
which extends approximately 600 feet East of the cell. The vegetation shall be
established (with at least a one-year growing period) prior to waste being placed
within 400 feet of a cell with active waste placement. The berm shall be at least
14 feet in height, placed between the waste footprint and Creston Road, and
located between E 4,500 and E 7,500. C-1660
RWD states that the Board’s regulations provide “that a facility located within 500 feet of a
township or county road or state or interstate highway shall have its operations screened from
view by a barrier no less than 8 feet in height.” RWD Brief at 23, citing 35 Ill. Adm. Code
811.302(c). RWD argues that it has consequently proposed “to screen the facility’s operations
from view along South Mulford Road, East Creston Road, South Locus Road, and Illinois Route
38 by a vegetated earthen berm or fence with a total height of not less than 8 feet.” RWD Brief
at 23, citing C-1 at 2.1-1. RWD further argues that testimony by Mr. J. Christopher Lannert and
representatives of Shaw Engineering establish that the City carefully considered the proposed
berms in drafting the application. RWD Brief at 23;
see
C-20 at 85-182, C-25 at Exhibit 3
(Lannert Power Point presentation).
RWD opposes these two conditions on various grounds. First, RWD argues that
“Condition 22 vests excessive, arbitrary discretion in the City Manager to decide berming
requirements on an
ad hoc
basis, creating the potential for disruption of operation at the site.”
RWD Brief at 22. Second, RWD argues that the conditions extend berm height and placement
both for the screening berm addressed in Special Condition 22 and the perimeter berm addressed
in Special Condition 23.
Id
. at 22-23. Third, RWD argues that it is “unnecessarily duplicative
and redundant” for Special Condition 23 to require construction of an operational screening berm
up to eight feet in height in addition to a 14-foot perimeter berm.
Id
. at 23. Finally, RWD argues
that the record does not support a 14-foot perimeter berm, particularly considering the
agricultural areas surrounding the landfill.
Id
.
In support of these arguments, RWD first claims that, while the conditions would not in
any way improve public health, safety, or welfare, “these additional berm requirements would
have a serious, deleterious effect on the economic feasibility of the project.” RWD Brief at 23.
Specifically, RWD argues that higher berms require larger bases.
Id
. RWD claims that these
larger bases are necessary both as a matter of engineering and to limit the slope of the berm for
the protection of maintenance and landscaping workers.
Id
. Consequently, argues RWD, “a
higher berm consumes a substantial amount of footprint area, making that area unavailable for
waste disposal.”
Id
. at 23-24. RWD further argues that the additional berms required by the two
conditions conflict with the terms of the Host Agreement.
Id
. at 24
.
36
RWD argues that, in the course of reconsidering its decision to impose conditions, the
City Council revealed the motives underlying those conditions. RWD Brief at 24. RWD states
that one council member at that meeting expressed doubt that an operational berm “would do
much” to obstruct views of landfill operations.
Id
., citing C-23 at 36-37. RWD also argues that
members of the city council erroneously believed that striking Special Conditions 22 and 23
would eliminate berms from the landfill. RWD Brief at 24-25, citing C-23 at 35, 37. RWD
further claims that one council member explained and another member agreed that the
operational berm was “
more of a punitive measure
to the operator than it is an operational
advantage to anybody. It’s saying you have done a bad job, we’re going to make you put another
berm in.” RWD Brief at 25 (emphasis in original), citing C-23 at 38.
RWD argues that City Council members have relied unjustifiably on the opinion of its
own consultant. RWD Brief at 26. RWD claims that the City Council’s attorney confirmed that
the proposed 14-foot height of the proposed berm originated with that consultant.
Id
. at 25-26,
citing C-23 at 42. RWD further claims that the City Council’s attorney could not point to a
specific part of the record that supported the proposed 14-foot height. RWD Brief at 26. RWD
argues that one city council member explained his vote to affirm Special Condition 23 by stating
that “
I have to go with the experts that I hired
.” RWD Brief at 26 (emphasis in original), citing
C-23 at 52. RWD also argues that one city council member suggested that the consultant may
have had punitive motives. RWD Brief at 26, citing C-23 at 41. RWD concludes by claiming
that “the transcripts make clear that there was a determined attempt to use RWD’s past
operational shortcomings as a whipping boy to justify the imposition of conditions entirely
unrelated to those shortcomings or violations . . . .” RWD Brief at 27. RWD further claims that
Special Conditions 22 and 23 have no support in the record and do nothing to protect public
health, safety, and welfare.
Id
.
City of Rochelle’s Arguments.
With regard to Special Condition 22, the City claims
that the application includes various operational requirements. City Resp. at 8, citing C-1 at 2.6-
17 – 2.6-19. The City also claims that, while the application requires a perimeter screening berm
(C-1 at 3.1-8), neither the application nor the host agreement requires operational screening
berms. City Resp. at 8. The City argues that “[t]he stated purpose of the operational screening
berms is ‘to block the operations from view from Creston Road as well as help contain litter and
reduce noise impacts.’”
Id
.
The City argues that the record contains no testimony that this “condition requiring
operational screening berms was reasonable and necessary in order to ensure compliance with
criterion (ii).” City Resp. at 8. The City further argues that, to the extent Mr. Moose commented
on operational screening berms, he did so only briefly while responding to questions on other
issues.
Id
. at 9, citing C-20 at 65-68 (January 24, 2007 transcript), 201-02 (January 25, 2007
testimony). The City emphasizes Mr. Moose’s testimony that the application met the
requirements of criterion (ii) without requiring operational screening berms. City Resp. at 9,
citing C-20 at 195 (January 24, 2007 transcript). The City claims that, “[w]hile screening berms
might be desirable, and might be included in a future plan or permit application, there is no legal
foundation for imposing them as a condition for siting approval.” City Resp. at 9.
37
With regard to Special Condition 23, the City claims that the application requires a
perimeter berm ten to twelve feet in height. City Resp. at 9, citing C-1 at 3.1-8. The City cites to
the testimony of Mr. J. Christopher Lannert, who stated “that the berms and plantings were
designed to filter and screen the existing operations at the landfill from view along Mulford and
Creston Roads.” City Resp. at 10, citing C-20 at 110 (January 22, 2007 transcript). The City
emphasizes Mr. Lannert’s opinion that the application complies with the Act’s requirements and
claims that “[n]o one testified to the contrary.” City Resp. at 10;
see
C-20 at 102 (January 22,
2007 transcript).
The City argues that Special Condition 23 lacks support on two bases. First, the City
claims that there was no testimony that the berm should be fourteen feet high. City Resp. at 10.
Second, the City claims that “there was no testimony that such a berm was necessary to meet the
requirements of criteria (ii).”
Id
. at 10-11.
Rochelle City Council’s Arguments.
The City Council notes that, while the application
proposes a perimeter berm no less than eight feet in height, it does not propose operational
screening berms. Council Resp. at 11, citing C-1 at 3.1-8. The City Council further notes that
Mr. Lannert described the application’s proposed “undulating perimeter berm eight to ten feet in
height with plant material on top of the berm, including trees with a minimum height of six feet.”
Council Resp. at 11, citing C-20 at 92, 100, 153 (January 22, 2007 transcript). Although the City
Council states that Mr. Moose referred to operational screening berms in addressing soil cover
during the exhumation process (Council Resp. at 11 n.3), the City Council claims that “[n]o
witnesses testified and no other evidence was introduced that operational screening berms, or a
fourteen-foot perimeter berm, were necessary.” Council Resp. at 11. The City Council
accordingly argues that “[S]pecial Condition 22 should be stricken in its entirety and Special
Condition 23 should be modified to require an undulating perimeter berm eight to ten feet in
height with plant material on the trop of the berm, including plant material in excess of six feet in
height.”
Id
.;
see id
. at 14 (proposed modification).
RWD’s Reply.
With regard to Special Condition 22, RWD notes that its opening brief
argued that it lacks support in the record and offers no additional benefit to public health, safety,
and welfare. Reply at 2;
see generally
RWD Brief at 22-27. RWD notes that the City’s brief
concurs that Special Condition 22 should be struck. Reply at 2, citing City Resp. at 8-9. RWD
also claims that “[t]he 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.’” Reply at 2, citing
Council Resp. at 12. RWD argues that, since the petitioner and both respondents agree that this
condition has no support in the record and should be struck, “the Board should strike this
condition in its entirety.” Reply at 2.
With regard to Special Condition 23, RWD notes that the City concedes that Special
Condition 23 is not supported by the record. Reply at 3, citing City Brief at 1. RWD notes that
the City Council concedes that “[n]o witnesses testified and no other evidence was introduced
that operational screening berms, or a fourteen-foot perimeter berm, were necessary.” Reply at
3, citing Council Resp. at 11. RWD argues that the City Council does “provide minimal record
support for a proposed amendment to Special Condition 23, citing testimony concerning the
construction of an undulating perimeter berm of eight (8) to (10) feet in height, with plant
38
material, including trees no less than six feet in height, on top of the berm.” Reply at 4, citing
Council Resp. at 12. RWD notes that the City Council proposes a modification of this condition
that would “have at least minimal support in the record” (Reply at 4, citing Council Resp. at 14)
and argues that the Board should adopt that amendment. Reply at 4.
Special Condition 26
RWD’s Arguments.
RWD states that Special Condition 26 provides that
[t]he City Manager, and its legal and technical consultant, shall have the right to
be involved in the permitting for the horizontal and vertical expansion of the
Rochelle Municipal Landfill. As part of this involvement, the City Manager and
its consultant may attend meetings between the Operator and its consultants and
the IEPA. The City Manager and its consultants may also review and comment
on the Operator’s applications (provided such technical review and comment is
conducted within 30 days of receipt of the information) prior to the Operator’s
submission of the applications to the IEPA. The technical review comments shall
be incorporated into the applications or addressed to the satisfaction of the City
Manager.
The Operator agrees to reimburse the City for reasonable costs of its
consultants to review and comment on the Operator’s applications and
submissions
. RWD Brief at 27 (emphasis in original), citing C-1660.
RWD characterizes the effect of this condition as requiring it to pay the City’s costs of oversight.
RWD Brief at 27.
RWD argues that the Host Agreement includes negotiated terms relating to the City’s
review and oversight. RWD Brief at 27-27;
see
C-2 at Appendix C-1 (Host Agreement).
Specifically, RWD claims that the Host Agreement “provides that the City shall have the
opportunity to review all plans and permit applications prior to their being submitted, but
imposed no obligation on RWD to reimburse the City for costs incurred in doing so.” RWD
Brief at 28. RWD further claims that the condition merely seeks to change the financial terms of
the Host Agreement.
Id
. RWD argues that the record includes no basis for imposing the costs of
the City’s oversight on RWD and further argues that this cost-shifting “is hardly necessary to
establish that the facility is so designed, located, and proposed to be operated that public health,
safety and welfare will be protected . . . . “
Id
. at 27. RWD concludes by arguing that Special
Condition 26 is not necessary to accomplish the purposes of criterion (ii).
Id
. at 27, 28;
see
415
ILCS 5/39.2(ii) (2006).
City of Rochelle’s Arguments.
The City argues that, although it may be desirable to be
involved in the permitting of the landfill expansion, the requirements of Special Condition 26 is
“not included in the Host Agreement and, to the best of the City’s knowledge, there was simply
no evidence presented” in support of those requirements. City Resp. at 11. The City surmises
that the condition stems from the report from Patrick Engineering and argues that it should be
struck for lack of evidentiary support.
Id
.
39
Rochelle City Council’s Arguments.
The City Council argues that RWD has objected
to Special Condition 26 “only in that it requires it to pay the City’s oversight costs.” Council
Resp. at 8. The City Council argues that the Board “has held that local governments have the
right to discuss and recommend administrative and remedial measures relating to landfill
operation as a proper means of addressing concerns regarding the public health and safety.”
Id
.,
citing Browning Ferris, PCB 82-101, slip op. at 15 (Dec. 2, 1982). The City Council emphasizes
that this condition limits the City reimbursement to “reasonable” costs. Council Resp. at 8. The
City also claims that “the necessity of the City’s review and comment on RWD’s permitting
applications has been amply demonstrated by the evidence in the record of RWD’s operating
history.”
Id
.
RWD Reply.
RWD expresses the belief that “the modifications proposed by the City
Council with respect to Special Conditions 13, 22, 23, 33, and 34 are supported by the evidence
and, if affirmed by the Board
as so modified
, would be proper.” Reply at 7 (emphasis in
original);
see
Council Resp. at 13-14. RWD states that “[i]n 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,” then it “is prepared to withdraw its appeal” of condition 26. Reply at 7.
Special Condition 28
RWD’s Arguments.
RWD states that Special Condition 28 requires that
[t]he Operator shall submit the groundwater impact assessment (GIA) planned to
be submitted to the IEPA as a permit application to the City Manager for review.
The City Manager and its consultant may provide the Operator comments (within
30 days of receipt of the information) that must be incorporated or addressed prior
to submitting the GIA to the IEPA as a permit application. RWD Brief at 28,
citing C-1661.
RWD states that the Host Agreement provides that, if RWD must file “any state or
federal Supplemental Permits, Significant Modification Permits, Renewal Permits, special waste
stream permits, adjusted standards, variances, and other permits or authorization . . . necessary or
appropriate for the operations, development, expansion, or closure of the landfill,” then “[t]he
City will cooperate with the Operator in all such application or petitions filed by the Operator.”
RWD Brief at 28-29;
see
C-2 at Appendix C.1 (¶3.13). RWD further states that the host
agreement also requires RWD to provide the City with reasonable prior notice of such
applications “and that the Operator will not seek any permit, variance or standard that will have a
material adverse effect on the City without the City’s prior written approval.” RWD Brief at 29;
see
C-2 at Appendix C.1 (¶3.13). RWD describes these provisions as signs of a “cooperative
relationship” resulting from extensive negotiations with the City. RWD Brief at 29.
RWD argues that Special Condition 28 would change that cooperative relationship by
giving the City “carte blanche, unilateral authority to alter the content of any GIA permit filed by
the Operator.” RWD Brief at 29. RWD further argues that relevant provisions of the Host
Agreement, which it included with its application for expansion, are more than necessary to
ensure protection of public health, safety, and welfare.
Id
. RWD concludes that Special
40
Condition 28 “is clearly not necessary” to comply with the requirement of criterion (ii) and
should therefore be struck.
Id
.
City of Rochelle’s Arguments.
The City argues that, although it may be desirable to be
involved in the permitting of the landfill expansion, the requirements of Special Condition 28 are
“not included in the Agreement and, to the best of the City’s knowledge, there was simply no
evidence presented” in support of those requirements. City Resp. at 11. The City surmises that
the condition stems from the report from Patrick Engineering and argues that it should be struck
for lack of evidentiary support.
Id
.
Rochelle City Council’s Arguments.
The City Council argues that its “right to discuss
and confer with RWD on a matter of public health and safety is well-established.” Council Resp.
at 9, citing Browning Ferris, PCB 82-101, slip op. at 14-15 (Dec. 2, 1982). The City Council
disputes RWD’s claim that this condition should be struck “because it would undermine the
cooperative arrangement contemplated by the Host Agreement.” Council Resp. at 9. The City
Council argues that this claim fails to meet the burden of demonstrating that the application
without this condition would not violate the Act or Board regulations.
Id
. The City Council
further argues that “[i]n light of the evidence of RWD’s operating history, the requirement that
RWD incorporate or address the City’s comments on the GIA prior to submitting it to the IEPA
is not unreasonable or unnecessary.”
Id
. at 8.
RWD Reply.
RWD expresses the belief that “the modifications proposed by the City
Council with respect to Special Conditions 13, 22, 23, 33, and 34 are supported by the evidence
and, if affirmed by the Board
as so modified
, would be proper.” Reply at 7 (emphasis in
original);
see
Council Resp. at 13-14. RWD states that “[i]n 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,” then it “is prepared to withdraw its appeal” of Special Condition 28.” Reply at 7.
Criterion (vi)
Section 39.2(a)(vi) of the Act provides that an applicant must demonstrate compliance
with, and local siting approval shall be granted only if the proposed facility meets the criterion
that “the traffic patterns to or from the facility are so designed as to minimize the impact on
existing traffic flows.” 415 ILCS 5/39.2(a)(vi) (2006).
Special Conditions 33 and 34
RWD’s Arguments.
RWD states that Special Condition 33 provides that
[t]he following roadway improvement shall be made to Mulford Road, at the
expense of the Operator, prior to acceptance of waste within the expanded facility
waste footprint:
The reconstruction of Mulford Road between Route 38 and the
existing landfill entrance shall be designed to a rural standard with
a dust-free, all weather surface, provide a design weight limit of
41
80,000 pounds and shall be at lest two lanes wide. RWD Brief at
29, citing C-1661.
RWD further states that Special Condition 34, as amended upon reconsideration by the Rochelle
City Council on May 14, 2007, provides that
[t]he improvement to Mulford Road as described in special condition 33 above
shall be complete from 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 Operator shall pay all costs
of said improvements to the new landfill entrance, and a portion of the cost of the
improvements from the new landfill entrance to Creston Road proportionate to the
anticipated traffic attributable to the expanded facility, as determined by a traffic
study. RWD Brief at 29-30, citing C-1665.
RWD argues that the hearing officer’s findings and conclusions “reflect that the sole
evidence concerning Criterion (vi) was presented by [Mr. Michael A.] Werthmann,” a traffic
expert. RWD Brief at 30, citing C-233-39. RWD states that Werthmann testified on existing
plans to improve Mulford Road and stated that “most of the traffic that can be expected to use
the landfill is already using it, since the expansion is simply a continuation of existing
operations.” RWD Brief at 30, citing C-20 at 23-24, 29-31 (January 23, 2007 transcript). RWD
argues that, although Werthmann relied on cautious estimates of waste volume, his “studies
showed that the increased volume of traffic on Mulford Road would be ‘
not significant by any
means
.’´ RWD Brief at 30 (emphasis in original), citing C-20 at 34-35 (January 23, 2007
transcript). RWD also argues that the hearing officer echoed these conclusions by stating that
“the majority of the traffic generated by the proposed expansion is already on the roadway
system.
There will be little new traffic generated by the expansion
.” RWD Brief at 30, citing C-
236.
Noting that Mulford Road upgrades have already been proposed, RWD argues that
Special Condition 33 largely duplicates those upgrades. RWD Brief at 30, citing C_20 at 21
(January 23, 2007 transcript). RWD further argues that, although the evidence shows that the
landfill would increase traffic only to a degree that would be “not significant by any means,”
“Condition 33 requires that the Operator bear the
full
cost of the road improvements to the
Mulford Road upgrades.” RWD Brief at 21 (emphasis in original). RWD also argues that the
condition “adds a requirement that the road improvements must be completed
prior to
acceptance of any waste within the expanded facility waste footprint
.”
Id
. (emphasis in original).
RWD states that Special Condition 34 requires RWD to upgrade “Mulford Road
south
from the landfill entrance to Creston Road.” RWD Brief at 31 (emphasis in original). RWD
argues that that record contains no support for this requirement, “particularly in light of the fact
that inbound transfer trucks can not even use the southbound-to-Creston route, since it is not
rated for 80,000 pound trucks.”
Id
., citing C-20 at 170 (January 23, 2007 transcript). RWD also
characterizes this condition as “unusual” because the City requires RWD to improve
a township
road
.” RWD Brief at 31 (emphasis in original).
42
RWD claims that the geographical area addressed in Special Condition 34 “is one that is
already targeted for growth as a commercial/industrial area.” RWD Brief at 31. RWD notes that
one council member noted that a new landfill entrance “won’t be built for several years . . . and
by that time there could be additional industry using Creston Road and Mulford Road.”
Id
.,
citing C-23 at 70. RWD argues that “[w]arehouses and industrial sites generate far more traffic
per acre than a landfill.” RWD Brief at 31. RWD further notes that another city council member
observed that persons situated across Mulford Road from the landfill are likely to benefit from
the improvements required by Special Condition 34. RWD Brief at 31, citing C-23 at 72. RWD
argues that “it is clearly inequitable to force the Operator to make road improvements before it
even opens the new entrance, and to bear the cost of road improvements for the benefit of other
entities.” RWD Brief at 31-32.
RWD again argues with regard to these conditions that members of the city council were
inclined to overlook evidence and give undue deference to their consultants. RWD Brief at 32.
RWD concludes by arguing that the evidence does not show that upgrades to Mulford Road
required to be performed at RWD’s expense are necessary to comply with criterion (vi).
Id
.
Accordingly, RWD argues that they should be struck.
Id
.
City of Rochelle’s Arguments.
The City notes that its application requires
reconstruction of Mulford Road “to a two-lane road with a weight limit of 80,000 pounds from
Illinois Route 38 to just south of the site access drive.” City Resp. at 12, citing C-1 at 6-6
(proposed roadway improvements). Although the City acknowledges that “it was virtually
undisputed that Mulford Road should be upgraded as part of the landfill expansion, there were
two associated matters that were not addressed in the Application or in the Host Agreement.”
City Resp. at 12. First, the City argues that there was no agreement to improve Mulford Road
south from the landfill entrance to Creston Road. Second, the City argues that “there was no
agreement as to who was going to pay the cost of the improvements.”
Id
.
The City states that it introduced into the record a letter from the Ogle County Highway
Engineer suggesting that Milford Road improvements should include the Creston Road
intersection. City Resp. at 12, citing C-25 at Exhibit 8. The City further states that Mr. Michael
Werthman testified “that the Application provides for improvements only to the new landfill
entrance because the impact of the expansion on the portion of Mulford Road south of the new
entrance is minimal and that portion of the road would be used only by collection trucks whose
weight is below 80,000 pounds.” City Resp. at 12-13, citing C-20 at 48 (January 23, 2007
transcript). The City argues that both Mr. Werthman and Mr. Moose testified with regard to the
costs of those improvement “that they did not know who was to pay the costs.” City Resp. at 13,
citing C-20 at 110-11 (January 23, 2007 transcript), C-20 at 135 (January 25, 2007 transcript).
The city argues that “[t]he City Council’s allocation of costs is not supported by any
evidence in the record.” City Resp. at 13. The City further argues that “these conditions appear
to be an attempt to impose on the Operator, in the form of a siting condition, costs which should
have been negotiated and included in the Host Agreement.”
Id
. Although the City states that the
record would have supported a condition obligating the City and the operator to allocate costs
equitably, “the specific allocation contained in Special Conditions 33 and 34 is simply without
foundation in the record.”
Id
.
43
Rochelle City Council’s Arguments.
The City Council notes that the application
proposes upgrading Mulford Road from Illinois Route 38 to just south of the landfill access
drive. Council Resp. at 12, citing C-1 at 6-6. The City Council argues that Mr. Werthman, the
only witness regarding road improvements, testified that it was necessary to reconstruct and
improve Mulford Road to accommodate transfer trailers. Council Resp. at 13, citing C-20 at 21,
110-11 (January 23, 2007 transcript). The City Council further argues that Mr. Werthman
“testified that the increased volume of traffic on Mulford Road as a result of the expansion would
not be significant because the expansion is a continuation of existing operations and most of the
traffic is already using that road.” Council Resp. at 13, citing C-20 at 23-24, 29-31, 34-35
(January 23, 2007 transcript).
The City Council claims that there was no testimony or other evidence on the issue of
costs to improve Mulford Road. Council Resp. at 13. The City Council further claims that
“[t]here is no evidence supporting the conclusion that RWD should bear the entire cost of
improving Mulford Road between Route 38 and the Landfill entrance.”
Id
. Accordingly, the
City Council concedes that the record does not support allocating all costs of improving Mulford
Road to RWD.
Id
. The City Council argues that “the evidence supports a condition that the cost
of improving Mulford Road between Illinois 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.”
Id
.;
see id
. at 14 (proposed modification).
RWD Reply.
RWD notes that the City concedes the record contains no support for
Special Conditions 33 and 34 as drafted. Reply at 4, citing City Resp. at 1. RWD claims that the
City Council acknowledges that only Mr. Werthman testified regarding road improvements and
the necessity of them. Reply at 4, citing Council Resp. at 13. RWD further claims that “[t]he
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.” Reply at 4, citing
Council Resp. at 13.
RWD notes that the City Council proposed to modify these conditions to “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.’” Reply at 4, citing Council Resp. at 14. RWD expresses
the belief that the City Council’s “proposed modification to Special Conditions 33 and 34 are
consistent with the record in the case” and states that the Board should adopt the amendments.
Reply at 4-5.
AMICUS CURIAE
BRIEF BY CCOC
CCOC argues that “all of the Special Conditions imposed by the City Council, including
the eight (8) contested by Petitioner, should be upheld by this Board.” CCOC Brief at 2. CCOC
claims that “[t]he City Manager’s testimony during the hearing was a
de facto
invitation for the
City Council to impose conditions.”
Id
., citing C-21 at 168-180 (City Manager’s testimony).
CCOC further claims that “[a]s a result, Petitioner has waived the ability to now object to the
imposed Special Conditions.” CCOC Brief at 2. CCOC states that, “[f]or this Operator, with its
44
operating history, to quibble about the nature and extent of admittedly necessary and reasonable
conditions is remarkable.” CCOC Brief at 2
Below, the Board summarizes the arguments made by CCOC in its
amicus curiae
brief
and RWD’s reply to those arguments.
Previous Operating Experience of RWD
CCOC argues that, whether through “oversight or deliberate omission,” RWD’s brief
did not cite the concluding sentence of Section 39.2(a) of the Act:
The county board or the governing body of the municipality may also consider as
evidence the previous operating experience and past record of convictions or
admissions of violations of the applicant (and any subsidiary or parent
corporation) in the field of solid waste management when considering criteria (ii)
and (v) under this Section. CCOC Brief at 4;
see
415 ILCS 5/39.2(a) (2006).
CCOC claims that RWD acknowledges that Special Conditions 8, 13, 22, 23, 26, and 28 concern
criterion (ii), making operating history relevant to analysis of them. CCOC Brief at 4, citing
RWD Brief at 7. CCOC further argues that, although Special Conditions 33 and 34 concern
criterion (vi), they also concern criteria (ii) and (v) because of a truck accident on the roadway
addressed in those conditions. CCOC Brief at 4-5, citing C-20 at 213-14 (January 26, 2007
transcript), C-25 at CCOC Exhibit 2 (accident photographs). CCOC claims that “[i]n other
words, the Special Conditions can be associated with more than one (1) criterion.” CCOC Brief
at 5.
CCOC claims that, in preparing the Application and during the hearings, “the Applicant
and Operator attempted to conceal past violations of the Operator.” CCOC Brief at 5. CCOC
argues that RWD’s required documentation of its operating experience “failed to incorporate all
of its violations in its summary table and failed to provide accurate descriptions of several of the
disclosed violations.”
Id
.;
see
C-2 at Appendix A.2 (City of Rochelle Siting Ordinance); C-6 at
Appendix U (RWD operating history). CCOC describes this summary table as “deceptive.”
CCOC Brief at 5.
CCOC notes that Patrick Engineering, as consultants for the City Council, drafted the
special conditions. CCOC Brief at 6, 8;
see
C-251 – C-270 (Patrick Engineering report). CCOC
further notes that the hearing officer’s recommendation stated that “
I find all of the special
conditions recommended by Patrick Engineering, Inc. to be reasonably necessary, supported by
the record and necessitated by the previous operating experience
.” CCOC Brief at 6 (emphasis
in original), citing C-243. CCOC argues that, given RWD’s “previous operating experience, past
record of convictions and admissions of violations, the City Council was certainly justified in
implementing the Special Conditions.” CCOC Brief at 8.
Special Condition 8
45
CCOC characterizes as “incorrect” RWD’s allegation that “waste hauling cannot even
occur along the expanded route required by Condition 8.” CCOC Brief at 9, citing RWD Brief at
16. CCOC argues that Special Condition 35 requires “
transfer trailers
going to and from the
facility shall be contractually obligated to do so utilizing Route 38 West of Mulford Road to the
Interstate 39 interchange.” CCOC Brief at 9 (emphasis in original), citing RWD Brief at 16.
CCOC further argues that Special Condition 35 “does not prohibit waste hauling by packer
trucks and roll-off container haulers along the ‘expanded route.’” CCO Brief at 9. CCOC claims
that, because RWD benefits from having these vehicles traveling on that expanded route, “it
should be the responsibility of the Operator to ensure that the roads traveled upon by trucks
frequenting its facility are kept clean and free of litter.”
Id
.
CCOC states that the testimony of Mr. Moose provides evidentiary support for the litter
control requirements in Special Condition 8. CCOC Brief at 10. CCOC argues that Mr. Moose
stated that
[o]n a well-run landfill that garbage should be contained to the landfill site
and should not go off property. It does happen occasionally. If it does it
should immediately be picked up which means
they should deploy their
own litter pickers
that day and if it’s overwhelming for them
they’re going
to have to call in some temporary work force and get it taken care of
quickly
.”
Id
. (emphasis in original), citing C-20 at 75 (January 25, 2007
transcript).
CCOC further argues that Mr. Moose suggested that litter monitoring requires no technical
background and can be performed by elected officials and the general public. CCOC Brief at 10,
citing C-20 at 50-51 (January 25, 2007 transcript). CCOC concludes that “Mr. Moose,
Petitioner’s own expert,
suggested
that a condition similar to Special Condition 8 be
implemented. Thus, the Record contains sufficient information to support the imposition of
Special Condition 8, and it should, therefore, be upheld.” CCOC Brief at 10 (emphasis in
original).
Special Condition 13
CCOC notes that Shaw Environmental, the firm that designed the landfill expansion,
expected that exhumation of Unit 1 could be accomplished in a period of five to ten years.
CCOC Brief at 10-11, citing C-1 at 2.6-24, RWD Brief at 19. Accordingly, CCOC argues on the
basis of this expectation that “it would have been entirely reasonable for the City Council to
require the Operator to have Unit 1 exhumed within six (6) years.” CCOC Brief at 11. CCOC
notes that the condition allows RWD to request additional time for exhumation from the City
Council if good cause is shown.
Id
. CCOC suggests that this alternative makes it unnecessary
for RWD to seek to strike this condition.
See id
. CCOC argues that RWD “should not be
excused from meeting the initial deadline before the impracticability of meeting such deadline
has been adequately shown.”
Id.
at 12.
CCOC disputes RWD’s argument that this condition conflicts with the Host Agreement
providing that the Agency determines the process of exhumation. CCOC Brief at 12;
see
RWD
46
Brief at 19. CCOC argues that, “if the IEPA determines that six (6) years is not a sufficient
amount of time in which to complete the exhumation, or if it determines additional safeguards
are required which will slow down the exhumation, such a finding is
de facto
‘good cause,’ and
the Operator will be granted additional time.” CCOC Brief at 12. CCOC argues that, because
the City claims that exhumation will benefit public health, safety, and welfare, and because of
RWD’s operating history, Special Condition 13 should be upheld.
Id
. at 12-13, citing C-21 at
220-21.
Special Conditions 22 and 23
CCOC disputes RWD’s argument that the City Council imposed Special Conditions 22
and 23 to punish RWD for its operating history. CCOC Brief at 14, citing RWD Brief at 27.
CCOC argues that, under Section 39.2(a) of the Act, the City Council is allowed to consider
RWD’s operating history when considering criterion (ii). CCOC Brief at 14;
see
415 ILCS
5/39.2(a) (2006). CCOC further argues that, given RWD’s record, “the additional berm
requirements would offer an ‘additional benefit to the public health, safety and welfare,’ and the
imposition of a fourteen (14) foot berm
is
necessary to protect the public health, safety and
welfare.” CCOC Brief at 14 (emphasis in original).
CCOC also disputes RWD’s claim that that Special Condition 22 duplicates Special
Condition 23.
See
RWD Brief at 23. CCOC argues that “Special Condition 22 concerns
operational screening berms around each
cell
, while Special Condition 23 requires a permanent
perimeter berm around the
entire footprint
. Therefore, Special Conditions 22 and 22 (sic) are
necessary, separate, and distinct, albeit complementary of each other.” CCOC Brief at 14
(emphasis in original).
CCOC also disputes RWD’s claim that a 14-foot berm exceeds the requirements of the
Board’s regulations.
See
RWD Brief at 23. CCOC argues that “the law requires a barrier ‘
no
less than
8 feet in height.’” CCOC Brief at 14 (emphasis in original), citing 35 Ill. Adm. Code
811.302(c). CCOC further argues that RWD’s inadequate operating record should require a
higher berm “as its operations are less protective of the public health, safety and welfare.”
CCOC Brief at 14-15. In addition, CCOC states that must be in place only between the waste
footprint and Creston Road on the southern boundary of the landfill.
Id
. at 15. CCOC further
argues that “there is no evidence that a fourteen (14) foot perimeter berm is either technically or
financially impracticable.”
Id
., citing Waste Mgmt. of Ill., Inc. v. Will County Bd.
, PCB 99-141
(Sept. 9, 1999).
Special Condition 26
CCOC claims that RWD’s operating history makes Special Condition 26 necessary.
CCOC Brief at 16. CCOC argues that, if RWD had a better operating history, “it may be less
necessary for the City Manager to be as actively involved in any permitting procedures.”
Id
.
CCOC further argues that
[b]y requiring the Operator to reimburse the City for the reasonable costs
of its consultants to review and comment on any applications and
47
submissions, Special Condition 26 provides an incentive for the Operator
to comply with any and all rules and regulations. The more complete and
thorough the Operator’s applications and submissions, the less time and
money the City will have to spend reviewing and evaluating such
documents.
Id
.
CCOC further argues that it is appropriate for the City Council to impose technical conditions,
which “can be used by a community as a means to continue to play a role in facility development
after the siting process has concluded.”
Id
. at 16-17 (citations omitted). CCOC claims that the
City Council has authority to impose this condition regardless of RWD’s operating history.
Id
.
at 17.
CCOC claims that, because the Host Agreement predates the hearings in this proceeding,
“the prior operating history of the Operator was not fully exposed until after the Host Agreement
was executed.” CCOC Brief at 17. CCOC argues that “[i]t is inconceivable that the City
Council should be prevented from imposing additional costs upon the Operator that were not
specifically included as part of the Host Agreement when the Operator deliberately concealed the
facts that necessitated the imposition of such costs.”
Id
.
Special Condition 28
CCOC renews its argument that RWD’s operating history “was not exposed until the
hearings, which was after the Host Agreement had been executed.” CCOC Brief at 17. CCOC
claims that the operating history justifies additional oversight and will not jeopardize the
relationship established in the host agreement.
Id.
CCOC further argues that this condition
“directly affects the pubic health, safety and welfare by requiring additional assurance that the
groundwater impact assessment is satisfactory.”
Id
. (citations omitted).
Special Conditions 33 and 34
CCOC notes that RWD has acknowledged that Special Conditions 33 and 34 relate to
criterion (vi). CCOC Brief at 18, citing RWD Brief at 7. CCOC first argues that Special
Conditions 33 and 34 also relate to criteria (ii) and (v), “as the road improvements were imposed,
in part, to minimize traffic backing up along the railroad tracks, which concerns the public
safety.” CCOC Brief at 18, citing C-20 at 91-93 (January 23, 2007 testimony). CCOC further
argues that “Petitioner’s operating history may also be considered in analyzing Special
Conditions 33 and 34.”
Id.
Noting that RWD has challenged the City Council’s decision to make RWD accountable
for road improvement costs, CCOC argues that “the road improvements to Mulford Road would
not have to be made
but for
the expansion of the landfill.” CCOC Brief at 18 (emphasis in
original). CCOC concludes that “it is only fair and reasonable that the Operator bear the cost of
such improvements.”
Id
.
Noting that RWD objects to Special Condition 34 in part “because ‘transfer trucks’
cannot use the stretch of road from Mulford Road southbound to Creston Road,” CCOC argues
48
that RWD “fails to acknowledge that packer trucks can and will use such route.” CCOC Brief at
19. CCOC stresses that the condition “only requires the Petitioner to
pay that portion
of the cost
of improvements from the new landfill entrance to Creston Road that it proportionate to the
anticipated traffic attributable to the expanded facility.”
Id
. (emphasis in original).
RWD’s Reply
Generally, RWD argues that CCOC’s position in its
amicus curiae
brief “consists almost
entirely of an exaggerated portrayal of RWD’s operating history, and a legally unsound
argument” based upon that exaggeration. Reply at 5. RWD first disputes CCOC’s claim that the
summary of violations prepared by RWD is incomplete. RWD notes that Mr. Hilbert testified
that his own summary included every violation notice included in the summary prepared by Mr.
Rypkema of the Ogle County Solid Waste Management Department.
Id
, citing C-6 at Appendix
U, C-21 at 137 (February 8, 2007 transcript), C-25 at Operator’s Exhibit 2. RWD argues that
“[a] review of the two documents confirms the accuracy of Mr. Hilbert’s testimony.” Reply at 5.
Second, RWD disputes CCOC’s claim that an oversight or deliberate omission led RWD
to omit citation to a second sentence of criterion (ix) relating to operating history. Reply at 5,
citing CCOC Brief at 4. RWD suggests that the language CCOC refers to is in effect an
unnumbered tenth criterion and “is not a part of criterion (ix) at all.” Reply at 5;
see
415 ILCS
5/39.2(a) (2006).
Third, RWD disputes CCOC’s claims that the record includes “direct, conflicting
evidence” regarding the contested conditions. Reply at 6, citing CCOC Brief at 3-4. RWD
argues that “CCOC fails to include any record cites whatsoever to this supposed ‘evidence.’”
Reply at 6. RWD claims that CCOC appears to argue “that a record of past violations dispenses
with the well-established requirements that a condition to siting approval be supported by
evidence in the record.”
Id
.
Special Condition 13.
RWD characterizes CCOC’s argument on this condition as
“fatally flawed.” Reply at 6. RWD claims that a six-year deadline for exhumation of Unit 1
overlooks testimony that the process may take as long as ten years.
Id
. Also, RWD disputes
CCOC’s claim that the condition is reasonable because it allows the City Council to extend the
deadline.
Id
. RWD argues that the condition contains no standards on which to determine
whether to grant a request for an extension, giving the City Council “unfettered discretion.”
Id
.
Special Conditions 22 and 23.
RWD notes CCOC’s argument that a 14-foot perimeter
berm is justified by RWD’s operating history and by conflicting testimony in the record. Reply
at 6. RWD disputes CCOC’s claim that there is conflicting testimony on this issue as “totally
unsupported by the record.”
Id
. at 6-7. RWD further argues that “CCOC’s exaggerated
allegations concerning the operator’s history do not obviate the need for a condition to find
support in the record.”
Id
. at 7.
Special Conditions 33 and 34.
RWD claims that CCOC’s allegations regarding the
evidence supporting these conditions “conveniently fail[] to include any citations whatsoever to
the record to support those allegations.” Reply at 7. RWD notes Mr. Werthman’s testimony
49
regarding Mulford Road that “the expansion of the landfill is a continuation of existing
operations and most of the traffic is already using that road.”
Id
. RWD argues that “[t]here was
no evidence to the contrary, and there was no testimony concerning an appropriate allocation of
costs.”
Id
.
RWD’s Conclusion.
RWD restates its position that “the modifications proposed by the
City Council with respect to Special Conditions 13, 22, 23, 33, and 34 are supported by the
evidence and, if affirmed by the Board
as so modified
, would be proper.” Reply at 7 (emphasis
in original);
see
Council Resp. at 13-14. RWD also restates that, “[i]n 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,” then it “is prepared to withdraw its appeal” of Special Conditions 8, 26 and 28.”
Reply at 7.
DISCUSSION
Special Condition 8
In its recommendation, Patrick Engineering, the City Council’s consultant, agreed that
“the design, operation and location of the expansion is designed and proposed to be operated to
be protective of the public health safety and welfare” with special conditions including the
following:
[t]he Operator shall, at a minimum, inspect on a daily basis the public right of
ways, and areas adjacent to these right of ways, from the landfill facility gate
north to Mulford Road and along Route 38 west to the Interstate 39 interchange.
Litter collection along these rights of ways shall be performed at least once per
week, and more often if the Landfill Advisory Committee determines from review
of evidence that the Operator is responsible for the litter. C-263 (recommended
condition 8)
see also
C-322 (proposed CCOC special condition 1(d));
see
generally
Fairview Area Citizens Taskforce v. PCB, 198 Ill. App. 3d 541, 555
N.E.2d 1178, 1182 (3rd Dist. 1990) (stating record supports Board findings on
consultant’s report).
In his recommendation, the local hearing officer found “all of the special conditions
recommended by Patrick Engineering, Inc. to be reasonably necessary, supported by the record
and necessitated by the previous operating experience.” C-243. The hearing officer
recommended imposition of the same special condition, proposing only technical, non-
substantive changes to its language. C-244 (recommended condition 8).
As imposed by the City Council, Special Condition 8 also requires daily litter inspection
on Illinois Route 38 east from Mulford Road through Creston to Woodlawn Road and weekly
litter collection along that route. C-1658 (Rochelle City Council Resolution R07-10 approving
expansion); C-1664 (reconsideration). In his testimony regarding traffic, Mr. Werthmann
testified that 40 percent of the direct haul trucks delivering local waste to the landfill will travel
to and from the east on Illinois Highway 38. C-20 at 27-28 (January 23, 2007 transcript); C-25
at Operator’s Exhibit 7 (slide 14). Mr. Werthmann’s testimony distinguishes between these local
50
trucks and the transfer trailers addressed by Special Condition 35, which obligates those transfer
trailers to follow Illinois Route 38 west from its intersection with Mulford Road.
Id
.;
see
C-1661
(special condition 35).
In his testimony, Mr. Moose acknowledged that garbage will not always be contained to
the landfill site. C-20 at 70 (January 25, 2007). He testified that, if it does leave the site, the
operator should immediately deploy a crew to pick it up and that it should hire temporary
workers if necessary to address the problem quickly.
Id
. The Board notes that RWD’s operating
history includes references to improper use and application of cover, allowing refuse to remain
uncovered, and failure to collect and contain litter from its site. C-6 at Appendix U; C-25 at
Operator’s Exhibit 2.
In light of the recommendations from Patrick Engineering and the hearing officer, the
testimony of Mr. Werthmann and Mr. Moose, and RWD’s operating record, the Board finds that
Special Condition 8 is not against the manifest weight of the evidence. The Board affirms the
requirements of that Special Condition 8 as imposed by the City Council.
Special Condition 13
In its recommendation, Patrick Engineering agreed that “the design, operation and
location of the expansion is designed and proposed to be operated to be protective of the public
health safety and welfare” with special conditions, including the following:
[t]he Operator shall complete the exhumation and relocation of the waste from
Unit 1 within six (6) years from the IEPA permit approval for the expansion. The
waste exhumation and relocation 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. C-264 (recommended condition 13).
In his recommendation, the hearing officer found “all of the special conditions recommended by
Patrick Engineering, Inc. to be reasonably necessary, supported by the record and necessitated by
the previous operating experience.” C-243. The hearing officer recommended imposition of the
same recommended Special Condition 13. C-245 (recommended condition 13);
see also
C-323
(proposed CCOC special condition 7).
As imposed by the City Council, Special Condition 13 provides that
[t]he Operator shall complete the exhumation and redisposal of waste from Unit 1
as soon as practicable, but in no event later than six (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 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. C-1659.
51
The application anticipates that the relocation of Unit 1 will be performed over a period
of five to ten years. C-1 at 2.6-24. The Host Agreement requires the exhumation and relocation
process to be completed within a commercially reasonable time. C-2 at Appendix C.1. Mr.
Moose testified that waste relocation is “going to take on the order of about 10 years to achieve.”
C-20 at 323 (January 24, 2007 transcript).
The Board finds that the 6-year deadline contained in Special Condition 13 falls within
the time estimated in the application for completion of the exhumation and relocation. The
Board further finds that the condition allows RWD to demonstrate to the City Council that good
cause exists for an extension of that six-year deadline. The special condition does not limit the
number or duration of any extensions. In light of these considerations and the recommendations
from Patrick Engineering and the hearing officer, the Board finds that Special Condition 13 is
not against the manifest weight of the evidence. The Board affirms the requirements of that
special condition as imposed by the City Council.
Special Conditions 22 and 23
In its recommendation, Patrick Engineering agreed that “the design, operation and
location of the expansion is designed and proposed to be operated to be protective of the public
health safety and welfare” with special conditions including the following:
[t]he plan of operations shall include the construction of operational screening
berms of between six (6) and eight (8) feet in height along the southern edge and
partially along the east and west edges of operating cells to help block the
operations from view from Creston Road as well as help contain litter and reduce
noise impacts. The Operator shall propose, and the Landfill Advisory Committee
shall consider for approval, the placement and limits of the operational berms
prior to each cell’s development. Final approval must be obtained prior to new
cell construction. The Committee shall consider the height of the active face, the
distance from the site boundary, and the presence of other visual barriers (such as
Unit 2) and the effectiveness of other litter and noise control strategies (such as
litter fences and permanent perimeter berms) in making its determination. C-265
(recommended condition 23).
Patrick Engineering also recommended a special condition providing that
[p]erimeter 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 feet in advance of the eastern-most edge of the cell being
constructed. By way of example, prior to completion of Cell 3’s liner completion,
the southern berm along Creston Road shall be constructed from E 4,200 to E
6,500, which extends approximately 600 feet east of the cell. The vegetation shall
be established (with at least a one-year growing period) prior to waste being
placed within 400 feet of a cell with active waste placement. The berm shall be at
52
least 14 feet in height, placed between the waste footprint and Creston Road, and
located between E 4,500 and E 7,500. C-265 (recommended condition 24).
In his recommendation, the hearing officer found “all of the special conditions
recommended by Patrick Engineering, Inc. to be reasonably necessary, supported by the record
and necessitated by the previous operating experience.” C-243. The hearing officer
recommended imposition of the same special condition, proposing only technical, non-
substantive changes to its language. C-246-47 (recommended conditions 23, 24). Although the
City Council in Special Condition 22 substituted “the City Manager” for “the Landfill Advisory
Committee,” it otherwise adopted the special conditions substantively as proposed by Patrick
Engineering and the hearing officer.
See
C-1660;
see also
C-322 (CCOC recommended special
condition 1(c)).
With regard to these special conditions, Mr. Moose testified that an operational screening
berm is an appropriate approach when landfill activities rise above grade level. C-20 at 202
(January 24, 2007 transcript). He further testified that these berms help to screen operations
from view and control litter. C-20 at 66-68 (January 25, 2007). In light of the recommendations
from Patrick Engineering and the hearing officer, the testimony of Mr. Moose, and RWD’s
operating record, the Board finds that Special Conditions 22 or 23 are not against the manifest
weight of the evidence. The Board affirms the requirements of Special Conditions 22 and 23 as
imposed by the City Council.
Special Conditions 26 and 28
In its recommendation, Patrick Engineering agreed that “the design, operation and
location of the expansion is designed and proposed to be operated to be protective of the public
health safety and welfare” with special conditions including the following:
[t]he City Council, and its legal and technical consultants, shall have the right to
be involved in the permitting for the horizontal and vertical expansion of the
Rochelle Landfill. As part of this involvement, the City Council and its
consultants may attend meetings between the Operator and its consultants and the
Illinois EPA. The City Council and its consultants may also review and comment
on the Operator’s applications (provided such technical review and comment is
conducted within 30 days of receipt of the information) prior to the Operator’s
submission of the applications to the Illinois EPA. The technical review
comments shall be incorporated into the applications or addressed to the
satisfaction of the City Council. The Operator agrees to reimburse the City for
the reasonable costs of its consultants to review and comment on the Operator’s
applications and submissions. C-266 (recommended special condition 27).
Patrick Engineering also recommended a special condition providing that
[t]he Operator shall submit the groundwater impact assessment (GIA) planned to
be submitted to the IEPA as a permit application to the City Council for review.
The City Council and its consultants may provide the Operator comments (within
53
30 days of receipt of the information) that must be incorporated or addressed prior
to submitting to the GIA to the IEPA as a permit application. C-266
(recommended special condition 29).
In his recommendation, the hearing officer found “all of the special conditions recommended by
Patrick Engineering, Inc. to be reasonably necessary, supported by the record and necessitated by
the previous operating experience.” C-243. The hearing officer recommended imposition of
substantively identical special conditions. C-247 (recommended conditions 27, 29).
In adopting Special Conditions 26 and 28, the City Council replaced references to the
“the City Council” with references to “the City Manager.” The City Council otherwise adopted
both of the special condition substantively as proposed by Patrick and the hearing officer.
See
C-
1660.
The restated Host Agreement provides that RWD will provide the City with prior notice
of various permit applications and petitions related to the landfill, that RWD will not seek any
permit or other relief having an material adverse effect on the City without the City’s prior
approval, and that the City will cooperate with RWD in all such applications or petitions. C-2 at
Appendix C.1 (¶3.13). In light of the recommendations from Patrick Engineering and the
hearing officer and RWD’s operating record, the Board finds that the additional oversight
embodied in Special Conditions 26 and 28 are not against the manifest weight of the evidence.
The Baord affirms the requirements of Special Conditions 26 and 28 as imposed by the City
Council.
Special Conditions 33 and 34
In its recommendation, Patrick Engineering did not address criterion (vi) (
see
C-253), the
basis on which the City Council imposed Special Conditions 33 and 34 (C-1656). Nonetheless,
Patrick Engineering recommended under criterion (ii) that RWD incur the expense of specified
roadway improvements in order that “the design, operation and location of the expansion is
designed and proposed to be operated to be protective of the public health safety and welfare.”
Patrick Engineering proposed the following special condition:
[t]he following roadway improvements shall be made to Mulford Road, at the
expense of the Operator, prior to acceptance of waste within the expanded facility
waste footprint: - The reconstruction of Mulford Road between Illinois Route 38
and Creston Road shall be designed with a dust free, all weather surface, provide
a design weight limit of 80,000 pounds and shall be at least two lanes wide. C-266
(recommended special condition 35).
While the hearing officer’s consideration of criterion (vi) generally addressed the issue of
improving Mulford Road, it did not specifically address the cost of that improvement.
See
C-
238. In his recommendation, the hearing officer found “all of the special conditions
recommended by Patrick Engineering, Inc. to be reasonably necessary, supported by the record
and necessitated by the previous operating experience.” C-243. The hearing officer
54
recommended imposition of a special condition substantively identical to that proposed by
Patrick. C-248 (recommended conditions 35).
At its April 11, 2007 meeting, the City Council addressed this issue in two special
conditions. Special Condition 33 provided that
[t]he following roadway improvement shall be made to Mulford Road, at the
expense of the Operator, prior to acceptance of waste within the expanded facility
waste footprint: - The reconstruction of Mulford Road between Illinois Route 38
and the existing landfill entrance shall be designed to a rural standard with a dust
free, all weather surface, provide a design weight limit of 80,000 pounds and shall
be at least two lanes wide. C-1661.
In addition, Special Condition 34 provided that
[t]he improvement to Mulford Road as described in special condition 33 above
shall be completes from the existing landfill entrance to Creston Road, at the
expense of the Operator, no later than the date on which the proposed new
entrance for the expansion is built and completed as required in Special Condition
16. C-1661.
On reconsideration, the City Council amended Special Condition 34 to provide
[t]he improvements to Mulford Road as described in special condition 33 above
shall be completed from 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 Operator shall pay all costs
of said improvements to the new landfill entrance, and a portion of the cost of
improvements from the new landfill entrance to Creston Road proportionate to the
anticipated traffic attributable to the expanded facility, as determined by a traffic
study. C-1665 (Resolution 07-18).
Mr. Werthmann testified that the proposed expansion would not add a significant volume
of traffic to Mulford Road. C-20 at 34-35 (January 23, 2007 transcript);
see
C-238 (hearing
officer’s findings of fact). Although the application includes upgrading Mulford Road (C-C-1 at
6.6, C-20 at 21 (January 23, 2007 transcript)), the Host Agreement does not specifically address
the cost of that improvement (
see
C-2 at Appendix C.1), and both Mr. Werthmann and Mr.
Moose testified that they were not certain who would pay those costs. C-20 at 110-11 (January
23, 2007 transcript); C-20 at 135-36 (January 25, 2007 transcript).
The Board concludes that Special Conditions 33 and 34 assigning road improvement
costs to RWD lack support in the record. Furthermore, the Act does not permit the City Council
to consider RWD’s operating experience in considering these conditions imposed under criterion
(vi).
See
415 ILCS 5/39.2(a) (2006).
55
The Board notes that the City Council concedes that the allocation of costs in these two
special conditions lacks record support. Council Resp. at 13. The City, as siting applicant,
concurs in this conclusion. City Resp. at 13-14. The City Council argues that “the evidence
supports a condition that the cost of improving Mulford Road between Illinois 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 into the Host Agreement.” Council Resp. at 13.
Accordingly, the City Council proposes to amend Special Condition 33 simply by
striking the language “at the expense of the operator.”
Id
. at 14. The City Council proposes to
amend Special Condition 34 as follows:
[t]he improvements to Mulford Road as described in special condition 33 above
shall be completed from 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 of improvements 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.
Id
.
RWD argues that the City Council’s modifications are consistent with the record and that
the Board should adopt those amendments. Under these circumstances, the Board finds
that Special Conditions 33 and 34 should be modified to conform to the record, as
proposed by the City Council and as described in the Board’s order below.
See
Browning
Ferris Industries of Illinois v. Lake County Board of Supervisors and IEPA, PCB 82-101,
slip op. at 14-15 (Dec. 2, 1982).
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
1)
The Board’s review of the City Council’s record of decision demonstrates that the
City Council’s decision to impose Special Conditions 8, 13, 22, 23, 26, and 28 is not against the
manifest weight of the evidence. The Board affirms the requirements of those special conditions
as imposed by the City Council.
2)
The Board finds that Special Conditions 33 and 34 lack support in that record and
modifies those conditions as proposed by the City Council as follows:
Special Condition 33. The following roadway improvements shall be made to Mulford
Road prior to acceptance of waste within the expanded facility waste footprint: - The
Reconstruction of Mulford Road between Route 38 and the existing landfill entrance
shall be designed to a rural standard with a dust free, all weather surface, provide a design
weight limit of 80,000 pounds and shall be at least two lanes wide.
Special Condition 34. The improvements to Mulford Road as described in Special
Condition 33 above shall be completed from the existing landfill entrance to Creston
56
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 of improvements 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.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above opinion and order on January 24, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board