City Council Minutes 2006 10-17-06 Special Meeting F THE SPECIAL MEETING OF THE CITY COUNCIL
MINUTES O ,
OF THE UNITED CITY OF YORKVIL,LE. ]KENDALL COUNTY. ILLINOIS,
HELD IN THE CITY COUNCIL CHAMBERS,
800 GAME FARM ROAD ON
TUESDAY, OCTOBER 17, 2006.
Mayor Prochaska called the meeting to order at 6:30 P.M and led the Council in the Pledge of
Allegiance.
ROLL CALL
Clerk Milschewski called the roll.
Ward I James Present
Leslie Present
Ward Il Burd Present
Wolfer Present (arrived at 6:37)
Ward III Bock Present
Munns Present (arrived at 6:40)
Ward IV Besco Present
Spears Present
Also present: City Clerk Milschewski, City Attorney Wyeth, Interim City Administrator Crois,
Assistant City Administrator Olson, Finance Director Mika and Community Development
Director Miller.
OUORUM
A quorum was established.
CITY COUNCIL REOUESTS
Mayor Prochaska explained that this meeting was called by Aldermen Munns, Spears and Burd
for the purpose of having discussion on the Host Agreement. He introduced Attorney Derke
Price and Brooke Beal, the authors of the agreement.
Attorney Price addressed the City Council and introduced Mr. Beal. He explained that Mr. Beal,
who is the Director of the Solid Waste Agency of Northern Cook County and a private consultant
to municipalities and counties, is one of his panel of experts who is helping guide the United City
of Yorkville in this process. Mr. Beal brings a government view to the process. Attorney Price
asked Mr. Beal for his expertise and together they drafted the Host Agreement.
Attorney Price stated that he felt that the purpose of this meeting was to be an educational
component as to where the United City of Yorkville is in terms of what the Host Agreement has
done for the City and where it is about to go. He explained that this is a long process and as of
this time, no application has been received. For this process to begin, an application for a landfill
needs to be filed with the City so that it is knows what is being proposed. The City then reacts to
the application and gathers more information. One of the tasks of the City Council is to evaluate
the application and the evidence presented. If the application meets the criteria, the City Council
may impose conditions that are tailored to what is presented. He explained that the Host
Agreement sets up the opportunity to tailor the application based on public input. The agreement
also sets the ground rules which protects the City in the process and sets the general parameters
for what the agreement will be and how the parties will approach it if an application is received
and if it is approved.
Attorney Price stated that he prepared a memorandum dated October 16, 2006 (see attached)
which contrasts the City's agreement with that of Kendall County. He explained that both the
City and Kendall County have the same goal in mind however two different approaches were
taken to protect the quality of life in Kendall County, minimize the negative affects of the
process, minimize the negative affects of a landfill and maximize the positive benefits. Attorney
_ Price explained that he listened to the City Council's input on recent annexations and
developments. He paid attention to what the City Council seemed to value in its planning
C process; making a difference to the people who are most affected by development and making
public input meaningful. He made these the guiding principals of the agreement; make an
immediate difference for the people affected and make room for public input. He explained that
he took a governmental approach which is concerned with the day-to-day things. He stated that
this approach was taken to Fox Moraine, the potential applicant, who was willing to look at the
process in the same way. Attorney Price explained that if a landfill is sited, it is there for twenty
years with another thirty years of post - closure; a landfill is a fifty year relationship. He stated that
if any relationship is combative it is less efficient and less productive when it comes to getting
things done.
I
i
The Minutes of the Regular Meeting 9f the C tv Cou ncil — October 17 2006 — va2e 2
Attorney Price gave an example of the ground water protection program. Both the County and
City agreements have a program however they differ dramatically on how they resolve a problem
with a well owner. The City's program obligates the landfill operator to provide potable water
within twenty -four hours and continue this service until test results indicate the landfill is not the
cause of the problem. With Kendall County's agreement, the complainant must first obtain a
laboratory analysis that shows the landfill is responsible for the water problem before the operator
has to provide a potable water supply.
Attorney Price stated that police power has been the big question; has the United City of
Yorkville given their police power away? He explained that this power is twofold; it is the
authority to regulate as well as the ability to take physical control of persons or property if
necessary and the City has not given this power away. He further explained that any landfill must
conform to regulations set by the state and federal governments (the Illinois Environmental
Protection Agency (IEPA), the Illinois Pollution Control Board, etc.). He stated that the
agreement gives the host the right to monitor and audit the operation, books and records of the
operator. Because the City does not have the in -house expertise to do this, a safeguard was built
in the Host Agreement to provide for reimbursement of the cost. The County's Agreement
provides for reimbursement of up to $100,000.00 /year for reasonable costs and the operator has a
say in what are reasonable costs. Whereas the City's agreement opts for complete objectivity; the
operator has no say in the independent monitoring or the cost involved. The cost is covered by
the Host Fees.
Attorney Price explained the enforcement of compliance outlined in the agreement. He stated
that the City has taken a proactive approach and front loaded the right of the City to take control
of a problem and make any changes necessary to resolve it. The City has within 48 hours to
notify the operator of any violation reported. The operator then has 72 hours to either fix the
problem or give notice that it will take longer to fix it and then give a plan of action. If after the
end of five days the City does not like the outcome, it has the right to take control of the situation
with its experts and dictate what will happen. The operator will have to pay all the expert and
consultant fees needed to resolve the violation and the City will have $10,000.00 on deposit up
front to start this process. Attorney Price went on to explain that in the County's agreement, if a
complaint is received, the County gives notice to the IEPA and Waste Management and then they
wait thirty days for the IEPA to do something. If the IEPA does something in thirty days, the
County might not do anything. If the IEPA doesn't act in thirty days, the County has the right to
seek an injunction but cannot do so under 5.3 of their agreement until day sixty. They are waiting
sixty days before they ask the court for relief.
Attorney Price turned the presentation over to Mr. Beal who discussed arbitration. He stated that
the County has a full docket and is short judges so getting an injunction is a long process.
Arbitration goes before a panel with backgrounds in engineering, environmental science, etc.
Arbitrators can come to Yorkville to handle the dispute in a timelier basis.
Mr. Beal went over the Host Compensation Fee Comparison chart. Upfront the City has more
funds than the County. After that, the city starts to lose ground due to the sharing of funds with
other units of government, recycling programs, environmental protection programs, etc. The
City's host fee also does not get the escalator of the Consumer Price Index (CPI) because it is set
by statute. This impacts the funds the City ultimately gets from a landfill.
Mr. Beal explained the Assignment of Rights. Both agreements restrict this without the City's
consent. He noted that the County's agreement has a good point which is that any sort of transfer
calls for a public hearing. He suggested that this provision be put into the siting conditions.
Mr. Beal explained that some items such as an End Use Plan, Traffic Plan, Spill Reimbursement,
Truck Tarpmg Plan and Communications cannot be defined until an application is filed and
public input is received.
-� Mr. Beal and Attorney Price entertained questions or comments.
Alderman Burd asked Attorney Price and Mr. Beal to explain how the Host Agreement can be
amended. Mr. Beal explained that the Host Agreement can be amended if both parties agree. He
stated that the agreement locks down essential terms. He stated that the more that is locked in
now, the less the City can affect it with siting conditions. Alderman Burd asked him to explain
siting conditions. Mr. Beal stated that if a landfill is sited and meets the criteria, the City Council
can apply conditions at this time. This is where the "tailoring" comes into affect.
As this meeting was scheduled before a public hearing at 7:00 p.m., it was recommended to
adjourn the meeting until a date in the future. Mayor Prochaska recommended the date of
Monday, October 30, 2006 at 7:00 p.m.
The Minutes of the Regular Meeting of the Citv Council — October 17. 2006 — page 3
ADJOURNMENT
Mayor Prochaska entertained a motion to adjoum the meeting until Monday, October 30, 2006 at
7:00 p.m. So moved by Alderman James; seconded by Alderman Wolfer.
Motion approved by a roll call vote. Ayes -8 Nays -0
James -aye, Mums -aye, Burd -aye, Spears -aye,
Bock -aye, Besco -aye, Leslie -aye, Wolfer -aye
Meeting adjourned at 7:00 P.M.
i
Minutes submitted by:
Jacquelyn Milschewski,
City Clerk City of Yorkville, Illinois
i
C
I
i
I
SPECIAL CITY COUNCIL MEETING
October 17, 2006
PLEASE PRINT
NAME: ADDRESS:
6 F e-( 0 rci� - 2 - Z - Z
I
M i�/7l0 1 2�x
/3 ,4/Z/9 X? o U - ) /'1 ,4 A) a l H l k L W c-ZL7 c"7 Yc�eK O I L L&
(VLF(VC.1/ SC O T 7 KL)
�l
Uot 11
Z o �°� h e �° �— f
MAk- �0 PiA)6 c7 'l( //!QV- '11e
SIGNIN
i
SPECIAL CITY COUNCIL MEETING
October 17, 2006
PLEASE PRINT
NAME: ADDRESS:
M APW t O Di�- j9z -50 &ik► -E---m �,A -QP K6 A
/J
4 e ,�r ��/ ��G�l �l� ' s.�� /./,' a i4
i
a�
1 L II i
- s/P,n ,1 A to '7 5 3 1 ( QU l r� Prke �.o w� •r y,�r+ �,�
I
SIGNIN
i
I
II
City Clerk Milschewski
City Council Packet
MEMORANDUM
To: John Wyeth
From: Derke J. Price
Brooke Beal
Subject: Education Component #1
Date: October 16, 2006
John:
Attached is the first of many -to -come memoranda to educate the City and the public on the process of where
we have been and where we are going. In particular, this memo concerns the Host Agreement, what we have
committed to, and what we need to be looking for once the application process begins. It does make some
comparisons to the County's agreement for the sake of understanding.
A graph and table has also been included and should be part of this memo to the Council.
Call with any questions.
Derke
THE YORKVILLE HOST CITY AGREEMENT
Focus on Local Impacts
Although we recognize you are comfortable with the terms you agreed to, we thought
that it would be prudent —as part of the educational component of this lengthy
process —to highlight for you the approach we took in the Host Agreement, the
consequences of that approach and its importance for you going forward. We also
thought it would be useful to contrast that approach (and its results) with that of the
County in its Host Agreement with WMI.
Our goal in the Host Agreement was to set some rules by which we could minimize
the negative impacts of the siting process and, if approved, to set the framework and
rules for a 20 -50 year relationship between the City and the landfill operator. We
sought to minimize the various negative impacts and maximize those positive
I
impacts that would become available to the City. Based on our review of your
policies and discussions with Staff, we concluded that the Host Agreement should
maximize local control, be readily accessible for your constituents, be predictable and
stable in achieving an actual result, and most of all be efficient (by which we mean, it
would give the City the ability to quickly address any issue, even where the Applicant
did not).
Further, we have observed first hand the power of public input into the land use
process. Accordingly, in both the siting ordinance and in the Host Agreement we
sought to maximize the amount of public input and to maximize the actual impact
that the public's input would have on the landfill operation or design.
A Host Agreement can be a two -edged sword in this regard. A Host Agreement
commits the other party to certain standards but it also limits what the City can do by
way of imposing further conditions of approval —at least on those items that are
already included in the Host Agreement. Thus, the more detailed a Host Agreement
is up front, the less flexibility the City would have to impose conditions after listening
to the public and the experts. Our goal, therefore, was to commit the Applicant to the
core safety, environmental and procedural terms and to leave room for you —the
elected officials —to make policy decisions and impose conditions on any approval
after you have heard from the public and the experts. We also made the Agreement
nimble enough to take advantage of all future advances in science, engineering,
technology and best practices.
We believe that you must make the sorts of policy decisions that have to be made
about any such relationship and not have them made for you by your lawyers. We
further believe you should only do so after you receive all of the information.
Because of the nature of the process, you cannot have all of the information
necessary to make all of the decisions at the time of the Host Agreement. We
understand that you look to us for expertise to protect the City. We have done that.
But we do not believe that we— simply because we are lawyers and engineers —know
precisely how to strike the balance on all the matters of policy that flow from this
1
important process. We will make recommendations, but only after we all see all of
the information and evidence from the applicant and the public.
While we sought to maximize the speed with which the City could intervene with
actual solutions on site (as opposed to relying upon post -hoc/ post judgment
penalties to control the Operator's behavior), we also recognized that (if sited) this
would be a 50 year relationship. Consequently our approach was to create a
relationship in which the City would be vigilant and cautious, but not necessarily
adversarial in its dealings. Likewise, we wanted (and we think we obtained) the
Operator to commit to an open and professional relationship.
Below is a more detailed comparison of the two approaches and their results in the
two documents:
i
1. POLICE POWER
{ r
Police power is the power or authority to regulate behavior and, where necessary, to
assert physical control over persons and things in order to promote the safety, health
and welfare of persons and property. The City of Yorkville's Host Agreement
Administrative Hearing/Arbitration Approach does NOT relinquish police power;
rather, it enhances the City's police power to take physical control quicker and
thereby ensure a quicker response time.
A. Applicable Regulations:
The Standards and Regulations to which the operation of any landfill must conform
are set by the State of Illinois through the Environmental Protection Act, the Illinois
Pollution Control Board Regulations; the permitting requirements of the Illinois
Environmental Protection Agency. If you violate these regulations, you violate the
City's Host Agreement and you violate the County's Host Agreement.
References:
City Host Agreement: Section 6 (permitted waste); Section 7 (Ban on
Hazardous Waste) and Section 20: "Fox Moraine, LLC warrants that it will at
all times conduct its operations at the Landfill in material compliance with all
of the ordinances, laws, rules and regulations of the City, the State of Illinois
and the United States of America relevant thereto."
County Host Agreement: Article 4 (authorized waste/ ban on waste/ design &
operating standards); Article 5 (5.1 same general language) (5.2 listing of
current State performance standards ( "the parties acknowledge that the
above - referenced Performance Standards are required by the Act, the IPCB
regulations and relevant permit requirements that IEPA will issue with respect
to the Landfill. ")
2
i
B. Monitoring:
The Host should have the right to monitor and audit the operations and books and
records of the operators. Neither the City nor the County has the in -house expertise
to do this and both must retain and use outside consultants to perform this task.
Both Host Agreements safeguard this right.
References:
City Host Agreement: Section 11 (Books and Records anytime, audit with 5
days notice); and Section 19 ( "The City shall have the right to inspect the
Landfill at anytime during the Facility's permitted hours of operation. ")
County Host Agreement: 4.7 (inspections during hours of operation upon
advance telephonic notice/ immediate access for emergencies/
unannounced inspections but advance notice of audits/ contact person at
operator to be designated)
Note on costs: The County Host Agreement (6.4) does provide for reimbursement by
the Operator of up to $100,000 per year for reasonable inspection and monitoring of
the operations; however, the Operator has some say over the meaning of
"reasonable ". We have recommended and negotiated a completely independent
monitoring scheme funded by the Host fees and over which the Operator has no say
whatsoever. This "independent approach" is the method used by Lake County, for
example, to monitor and inspect the landfills present there.
C. Enforcement:
The Host must be able to compel compliance. There are many ways that local
government attempts to guide behavior and compel compliance with its various laws:
one is the prospect of large fines or monetary damages for violation (the approach of
the County), another is the power to assume physical control over persons and things
to change behavior (the approach taken by the City). This area represents perhaps
the biggest difference in the divergent approaches taken by the two units of
government. The County has taken an adversarial approach to the Operator and
back - loaded the consequences for proven failures. The City has taken a more
proactive business relationship approach to the Operator and front loaded the right
of the City to take control of a problem and make such physical changes as are
necessary to correct a problem.
More specifically, the State's regulatory framework will oversee the major issues and
any substantial threat to health, safety or welfare will involve the State's apparatus
(including the Attorney General, the IEPA and PCB). The State acts independently of
the City or County. The Operator under both agreements is required to notify the
State of a whole host of problems or events. The County's enforcement scheme
requires notification to the State at the same time it notifies the Operator of any
breach or issue. The City's enforcement scheme permits notification to the State at
3
any time (there is nothing in the City's Agreement that prohibits such notification).
But this is where the two agreements diverge in their approach.
City: (Section 17) The City is to notify the Operator within 48 hours of being
made aware of any violation and the Operator has 72 hours thereafter to a)
remedy the violation, or b) initiate a remedy if such remedy will take longer
than 72 hours to complete. Should the Operator fail to remedy or initiate a
remedy within the time prescribed, then the City is authorized to take such
actions and assume control over the operation or site as necessary to cure
the violation.(Section 17). Thus, in a situation in which the Host and the
Operator are at odds over a perceived violation of a standard, the City has the
right to take such physical action as it deems appropriate on day 6.
County: (5.3) The County is to notify the Director of the IEPA, the IEPA regional
field office and the Operator. The County then must wait for the IEPA to Act. If
the IEPA does not act within 30 days (or does not act in a way the County
wishes) then the County must wait until 60 days after the date on which the
Operator received the notice to file an action for enforcement. Thus, in a
situation in which the Host and the Operator are at odds over a perceived
violation of a standard, the County cannot even seek injunctive relief until day
60.
A word on "injunctive relief ". Injunctive relief is the Court ordering a certain person to j
take a certain action. To obtain injunctive relief, the party seeking it must know what
it is they want the court to order. In the case of violations of the State standards, it
would take engineers and environmental experts to determine what course of action
is needed. The City has the right to act on those recommendations beginning on day
6 without needing the blessing of the Court. The County, by contrast, has to wait until
at least day 60 to ask the Court—in an adversarial situation where the Operator is
contesting the claim —to grant permission to take the action it desires.
The City also has on deposit, a revolving fund of $10,000.00 of the Operator's money
upon which the City can draw to pay the consulting costs (engineers, experts,
lawyers) and contractors involved in analyzing, prosecuting and fixing the problem.
The $10,000 is only the deposit; the Operator is responsible for all costs incurred by
the City to correct or handle a violation. Before drawing on the funds, an
administrative hearing before a Board composed of the Mayor, the Manager, and the
Director of Public Works must be held and they must find that the City,is entitled to
draw upon the fund. If the Operator does not like their decision, they can appeal to
an arbitration proceeding.
Why arbitration? Because of the speed and general background expertise it offers
any dispute. While the Kendall County Circuit Court certainly has the acumen and
ability to handle any disputes, those excellent jurists are not engineers or
environmental scientists and they also have full dockets (indeed, the need for
additional judges in this Circuit is well documented). To bring a dispute before them
requires educating the judges on the general scientific background of the operation
4
i
and regulatory framework as well as the specifics of the dispute. It also means that
the dispute is in a queue with the other citizens and entities of Kendall County —all of
whom believe that their cases are important and they they too warrant the attention
of the Judges. This combination of education and docket inevitably means a longer
time to a decision on the dispute.
We compared that to the timeline available through the American Arbitration
Association where a panel of environmental law, engineering and science experts are
available to decide the dispute and the dispute is one of perhaps a dozen matters
the arbitrator has as opposed to one of many hundreds. We are attempting to put
science and engineering first (and legal formalities second) because the landfill will
still be there and still operating after this one dispute is resolved —and we are trying
to make a difference in the operation going forward as quickly as possible, not just
punish for past wrongs. Notably, under the County's agreement, if the Operator
chooses to pay the stipulated damages, then no further action by the County is
permitted.
2. WELL PROTECTION
This is another area where the difference in approach between the City and the
County is manifest. Both Agreements contain a Domestic Well Protection Agreement,
but they differ dramatically on how they treat the well owner who thinks he has a
problem.
City: Complaint received at City Hall generates obligation on Operator to
provide potable water within 24 hours and then send sample of well water out
for testing. Alternate potable water supply obligation on the Operator
continues until test results show that landfill is not the cause of the problem.
City program continues through post - closure (30 years after closure).
County: Complainant must first obtain laboratory analysis that shows landfill
is responsible before Operator has obligation to provide an alternate potable
water supply. County program only when landfill "active."
3. HOST BENEFIT FEE
The pay scales differ but, for comparison purposes, if we assume 1 million tons per
year, the City receives $4.02 per ton and the County receives $3.89 per ton. Brooke
has prepared a projection based upon an anticipated CPI of 3% and anticipated
volumes and it is depicted in the attached Graph and Table.
Both Agreements provide for an upfront payment: City's Agreement calls for the
donation of 16 acres of land suitable for a public works /parks department facility in
order to solve a pressing and immediate need of the entire City. County's Agreement
calls for cash: $500,000 plus 5 more payments of $100,000 for each of the first 5
years.
5
i
The County Agreement sets a minimum payment equal to the amount generated by a
million tons per year. The City agreement sets no minimum and adopts the
proportional benefit philosophy (create no financial incentives to shortcuts on any
operational expenditures). The County Agreement also substantially modifies the
force majeure clause to create exceptions that relieve the Operator from the
minimum payment obligation (e.g., new technology or new laws).
The County Agreement also sets forth what purports to be a waste stream
commitment. As the Application defining service area does not exist —and the
proposed landfill is not identified in the hauling contracts WMI has now —this provision
has little substantive effect at this stage. The City will address any issues on waste
stream and service area after reviewing the Application and the evidence submitted
thereon.
4. SHARING HOST FEE
City Agreement creates possibility of sharing 22.15 fee with other units of
government. The County Agreement (diverging from requirements of County Solid
Waste Plan) does not provide for sharing of Host Fees.
5. DISPOSAL GUARANTEE
I
The City Agreement contains a guarantee for 20 years of access for MSW generated f
within the City limits. The County Agreement has a contingency that may lead to
guaranteed capacity for Kendall County municipalities.
6. ASSIGNMENT OF RIGHTS
Both Host Agreements prevent the assignment of any interests in the landfill without
City's consent. County restates specific requirements for transfer of rights to gas
(although already covered). County has a filing fee and option to hold a hearing.
Hearing option and Operator covering the costs of the review and hearing is a good
idea and we will recommend that as a condition of siting.
7. PROPERTY VALUE PROTECTION PROGRAM
Both Agreements contain a property value protection program
8. PREFILING REVIEW
The City Agreement permits a "staff review" by experts in advance. The issue is
safety and the City Agreement believes it is best to get as many expert eyes reviewing
the ideas before any part of the process commences. The siting authorities are not
included in these discussions and their impartiality is preserved. The County
I
6
Agreement is silent, but the County apparently does do some prefiling review (e.g.,
traffic)
9. INSURANCE
Both Agreements contain indemnification and insurance requirements. Often these
requirements are the subject of the conditions of the siting.
10. END USE
Required in application. City Agreement: Contemplates as a condition that will
further define the end use after public input during process.
11. MATERIAL RECOVERY /RECYCLE
City Agreement provides for material recovery activities and public convenience
center for recycling drop off. County Agreement (deviating from its own SWMP) is
silent.
12. MISCELLANEOUS.
The County Agreement sets for terms that the City anticipates being the subject of
conditions of any approval after the Application is filed, facts about the operation are
known, and the public has had a chance to speak on the issues. Examples include: j
Traffic Issues
Spill Reimbursement
Truck Tarping Plan
Communications (Hotline /Internet Site /Tours /Community outreach group)
j
I
i
I
I
7
Host CompensaUon Foe CCompar son
$5,000,000-
$4,500,000---
4,500,000 - -
$4,000,000--
$3,500,000- I
i
$3,000,000 - --"'
$2,500,000
$2,000,000
$1,500,000 -
$1,000,000
$500,000-
LJ
Upfront Year 1 Year 2 Year 3 Year 4 Year 5 Average
Operating Year
® Fox Moraine LLC ® Kendall Land and Cattle j
Fox Moraine - Kendall Land and Cattle
Estimated Annual Host Benefit Fee *
Kendall Land and
Year Fox Moraine LLC Cattle Difference
Upfront 960,000 ** 500,000 460,000
One 4,018,207 3,987,500 ** 30,707
Two 4,100,664 4,104,125 ** (3,461)
Three 4,185,595 4,224,249 * ** (38,654)
Four 4,273,074 4,347,976 * ** (74,902)
Five 4,363,177 4,770,862 * ** (407,684)
Average (first 5 years) $ 4,188,144 $ 4,286,942 $ (98,799)
* Based on 1,000,000 tons per year and 3.0% annual escalation
In kind (16 acres of real property @ $60,000 per acre)
* ** Includes $100,000 in lump sum fees for first five yeas of operations