BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND and CATTLE, L.L.C.
)
)
Petitioners,
)
)
vs.
)
)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
No. PCB 09-43
(Pollution Control Facility
Siting Appeal)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on March 24,2009, we filed with the Illinois Pollution
Control Board, via electronic filing,
PETITIONERS' AMENDED PETITION FOR
HEARING TO CONTEST SITE LOCATION DENIAL
in the above entitled matter, which is
attached hereto and herewith served upon you.
Donald J. Moran
Lauren Blair
PEDERSEN
&
HOUPT
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney No. 07779
497600.1
WASTE MANAGEMENT OF ILLINOIS, INC. and
KENDALL LAND and CATTLE, L.L.C.
By:
slDonald J. Moran
One
of Their Attorneys
Electronic Filing - Received, Clerk's Office, March 24, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND AND CATTLE, L.L.C.,
)
)
Petitioners,
)
)
vs.
)
)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
No. PCB 09-43
(Pollution Control Facility
Siting Appeal)
AMENDED PETITION FOR HEARING
TO CONTEST SITE LOCATION DENIAL
Petitioners Waste Management of Illinois, Inc. ("WMII") and Kendall Land and Cattle,
L.L.C. ("KLC"),
by Pedersen
&
Houpt, their attorneys, respectfully request a hearing to contest
the decision
of the County Board of Kendall County, Illinois ("County Board") denying site
location approval for the proposed Willow Run Recycling and Disposal Facility. In support
of
this Petition, WMII and KLC state as follows:
1.
This Petition is filed pursuant to Section 40.1(a) of the Illinois Environmental
Protection Act (the "Act") (415 ILCS 5/40.1).
2.
On February 5,2007, WMII and KLC filed a Site Location Application for the
Willow Run Recycling and Disposal Facility with the County Board ("2007 Application"). As
proposed in the 2007 Application, Willow Run was located
on a 669-acre site with a 282-acre
waste footprint. Its waste disposal capacity was 35 million tons, and it had a site life of 35 years.
Over one-third
of the base double composite liner system was to be constructed within the
underlying bedrock aquifer. At its highest point, Willow Run would
be 235 feet above ground
surface.
497576.1
1
3.
Public hearings on the 2007 Application were held over a three-week period in
May, 2007. Having been made aware
of the concerns that the County Board and the public had
regarding the proposal, WMII and KLC withdrew the 2007 Application
in July, 2007.
4.
On June 3, 2008, WMII and KLC filed a revised Site Location Application for the
Willow Run Recycling and Disposal Facility with the County Board ("2008 Application"). As
proposed in the 2008 Application, Willow Run was substantially reduced in size and scope from
the facility proposed in the 2007 Application. The site was reduced from 669 to 368 acres, the
waste footprint from 282 to 134 acres, the capacity from
35 to 14.5 years and the high point from
235
to 180 feet. In addition, no part ofthe double composite liner would be constructed in the
bedrock aquifer, but would be completely out of, and above, the bedrock aquifer. In fact, the
bottom
of the double composite liner and the top of the bedrock aquifer would be separated by a
low permeability soil layer ranging in thickness from 5.2 to 24 feet providing further
environmental protection.
5.
Public hearings on the 2008 Application were conducted by the County Board and
were held from
September
11 to October 1, 2008.
6.
On November 20, 2008, the County Board considered the 2008 Application, and
voted to approve each
of the statutory criteria except criteria (ii) and (iii). A true and correct
copy
of the Resolution Denying the Application, No. 08-34, is attached as Exhibit
A.
7.
WMII and KLC contest and object to this decision and its denial of criteria (ii)
and (iii) as fundamentally unfair.
8.
On information and belief, County Board members had improper
ex parte
communications with third persons both before and after the filing of the Application that
prejudiced or otherwise influenced their vote to deny.
497576.1
2
9.
County Board members considered and relied upon matters outside the record in
voting to deny.
10.
The hearing officer improperly struck the public comment filed October 28, 2008
by WMII, in violation of Section 39.2(c) of the Act and of Articles 6 and 7 of the Amended and
Restated Kendall County Site Approval Ordinance for Pollution Control Facilities ("Ordinance
No. 08-15").
11.
The hearing officer improperly struck a portion
of the written findings of the
County Board's legal counsel,
in violation of Sections 8.4 and 9.2 of Ordinance No. 08-15.
12.
The County Board's denial
of criterion (ii) is unsupported by the record and
against the manifest weight
of the evidence.
13.
The County Board's denial
of criterion (iii) is unsupported by the record, against
the manifest weight
of the evidence and contrary to law.
WHEREFORE, WMII and KLC respectfully request that this Board enter an order (1)
setting for hearing this contest
of Resolution No 08-34, and (2) reversing the County Board siting
denial.
Donald
J. Moran
PEDERSEN
&
HOUPT
Attorney for Petitioners
161 N. Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
497576.1
Respectfully submitted,
WASTE MANAGEMENT OF ILLINOIS, INC. and
KENDALL LAND
AND CATTLE, L.L.C.
By
slDonald J. Moran
One
of Their Attorneys
3
J'
A RESOLUTION DENYING THE APPLICATION OF
KENDALL LAND
&
CATTLE, LLC AND WASTE MANAGEMENT OF ILLINOIS, INC.
FOR SITING APPROVAL OF A POLLUTION CONTROL FACILITY
LOCATED IN UNINCORPORATED KENDALL COUNTY, ILLINOIS
WHEREAS, pursuant to §39.2 of the Illinois Environmental Protection Act (the
"Act"), 415 ILCS
5/39.2,
Kenda" County, "linois (the "County") has the authority to approve
or deny requests for local siting approval for new pollution control facilities, such as
landfi"s; and
WHEREAS, the General Assembly of the State of Illinois has provided in the
Illinois Environmental Protection Act, 415 ILCS
5/1, at seq.
(the "Act"), that the "linois
Environmental Protection
Agency may not grant a permit for the development or
construction of a new pollution control facility which is to be located in an unincorporated
area without proof that the location of said facility has been approved by the County Board
of the County in which said new pollution control facility Is proposed to be located; and
WHEREAS, Section 39.2 of the Act provides that an applicant for local siting
approval shall submit sufficient details describing the proposed facility to demonstrate
compliance with, and the County Board approval shall be granted only if, the proposed
facility meets the following criteria (the "criteria"):
(I)
the facility Is necessary to accommodate the waste needs of the area that it
is intended to serve;
(Ii)
the facility is so designed, located and proposed to be operated that the
public health, safety and welfare will be protected;
(iii)
the facility is located so as to minimize incompatibility with the character of
the surrounding area and to minimize the effect on the value of the
surrounding property;
(iv)
the facility is located outside the boundary of the 1 OO-year flood plain or the
site is flood-proofed;
.
...-
--..
(v)
the plan of operations for the facility is designed to minimize the danger to
the surrounding area from fire, spills or other operational accidents;
(vi)
the traffic patterns to and from the facility are so designed as to minimize the
impact on existing traffic flows;
(vii) If the facility will be treating, storing, or disposing of hazardous waste,
an emergency response plan exists for the facility which includes
notification, containment and excavation procedures to be used in case of an
accidental release;
(viii)
if
the facility is to be located in a county where the county board has adopted
a solid waste management plan consistent with the planning requirements of
the Local Solid Waste Disposal Act or the Solid Waste Planning and
Recycling Act, the facility is consistent with that plan; for purposes of this
criterion (viii), the "solid waste management plan" means the plan that is in
effect as of the date the application for siting approval is filed; and
(ix)
if the facility will be located within a regulated recharge area, any
applicable requirements specified by the [Pollution Control] Board for such
areas have been met; and
WHEREAS, the County Board 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 §39.2 of the Act; and
WHEREAS, in conjunction with the Act, the Kendall County Site Approval Ordinance
For Pollution Control Facilities, as amended (the "Siting Ordinance"), establishes certain
rules and regulations relating to the form, content, fees, and filing procedures for
j ..
applications and other matters relating to the approval of sites for the location of New
Pollution Control Facilities in the unincorporated areas of the County; and
WHEREAS, on June 3, 2008, Kendall Land & Cattle, LLC and Waste Management
of Illinois, Inc. (collectively the "Applicanr) filed with the County Board an application for
site
location approval for the Willow Run Recycling and Disposal Facility in unincorporated
Kendall County (the "Application"), which Application consists of nine (9) volumes of
reports
and supporting data; and
WHEREAS, the County Board conducted public hearings on the Application on
September 11,12,13, 15,16,17,18,22,23,24,25,29 and October 1, 2008, and the
report of proceedings (transcripts) contains the testimony of each witness, the oral
arguments of and cross-examination by the attomeys and participants and oral comments
by citizens; and
WHEREAS, throughout the proceedings, comments and pleadings were filed
by citizens, participants and parties, including but not limited to: (1) the Recommendation
dated November 5, 2008 submitted by Mr. Michael S. Blazer, counsel to the County (the
"Blazer Recommendation"), and (2) the proposed Findings dated November 11,
2008
submitted by Hearing Officer Patrick Kinnally (the "Kinnally Recommendation"); and
WHEREAS, the Siting Ordinance and Act require the County Board to determine
compliance or non-compliance with the criteria and the County Board approves ordenies a
requested site location, which determination by the County Board may include conditions
as permitted by the Act; and
WHEREAS, the Act requires that the County Board take final action on the
Application within 180 days from the date of its filing; and
WHEREAS, the County Board undertook all the necessary and legal steps required
to review and consider the Application and to develop a written decision consistent with
the requirements of §39.2 of the Act; and
WHEREAS, the County Board has accepted and considered all written
comments received or postmarked within 30 days after the date of the last public hearing
held in this matter; and
WHEREAS, the County Board has reviewed and considered the Blazer and Kinnally
Recommendations; and
WHEREAS, the County Board has reviewed the Application in light of the
criteria established for siting new pollution control facilities in §39.2 of the Act and the Siting
Ordinance; and
WHEREAS, having reviewed the hearing record in accordance with the rulings of
the Hearing Officer, the County Board finds that the application process was fundamentally
fair and efficient and accessible to the County's citizens and the public generally; and
WHEREAS, after review of the Appficatlon, all relevant testimony, all exhibits, all
public comments, the record made herein in its entirety and, after further consideration of
all relevant and applicable factors and matters, the County Board finds that it has
jurisdiction to rule on the Application of the Applicant for the Willow Run Recycling
and Disposal Facility based upon the Applicant's proper notification as provided by the Act,
and
WHEREAS, for the reasons set forth in the Kinnally Recommendation, the County
Board finds that the Applicant has met its burden with respect to siting criteria 1, 4, 5,6, 7,
8 and 9; and
WHEREAS, for the reasons set forth in the Kinnally Recommendation, the County
Board finds that the Applicant has failed to meet its burden with respect to criteria 2 and 3;
and
. ,
NOW, THEREFORE, BE IT RESOLVED by the Kendall County Board as follows;
SECTION 1. Recitals.
The facts and statements contained in the preambles to
this Resolution are found to be true and correct and are hereby adopted as part of this
Resolution.
SECTION 2. Decision.
The County Board denies the Application of Kendall
Land & Cattle, LLC and Waste Management of Illinois, Inc. for failure to meet criteria 2 and
3.
SECTION 3. Findings of Fact.
The County Board adopts the findings of fact and
recommendations set forth in the Kinnally Recommendation.
SECTION 4. Severability. If any section, subsection, sentence, clause, phrase or
portion of this Resolution is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and independent
provision, and such holding shall not affect the validity of the remaining portions of this
Resolution.
SECTION 5. Prior Resolutions. All prior Ordinances and Resolutions in conflict or
inconsistent herewith are hereby expressly repealed only to the extent of such conflict
ADOPTED and APPROVED by the KENDALL COUNTY BOARD on this
20
th
day of November, 2008
Co
Board Chairman
. ,
County Clerk
CERTIFICATE OF SERVICE
I, Lauren Blair, an attorney, on oath certify that 1 caused to be served the foregoing,
PETITIONERS' AMENDED PETITION FORBEARING TO CONTEST SITE LOCATION
DENIAL to be served upon the following parties listed below electronically on this 24th day of
March 2009.
James F. McCluskey
James S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
E-mail: jfmccluskey@momlaw.com
jharkness@momlaw.com
Eric
C. Weis
Kendall County State's Attorney
807 West John Street
Yorkville,
IL 60560
E-mail: eweis@co.kendalLil.us
Charles Helsten
HInshaw & Culbertson
100 Park Ave.
P.O. Box 1389
Rockford, IL 61105-1389
chelsten@hinshawlaw.com
497600.1
Bradley P. Halloran
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
E-mail: hallorab@ipcb.state.i1.us
George Mueller
Mueller Anderson, P.C.
609 E. Etna Rd.
Ottawa, IL 613 50
george@muelleranderson.com
Daniel J. Kramer
Law Office of Daniel J. Kramer
1107 S. Bridge St.
Yorkville, IL 60560
dkramer@dankramerlaw.com
slDonald
J. Moran
Donald
J. Moran