LOWE TRANSFER,

INC. and

MARSHALL LOWE,

Co-Petitioners,

Dated: August 27, 2003

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

V.

COUNTY BOARD OF

MCHENRY

COUNTY, ILLINOIS,

Respondent.

REcEIvED

CLERI’S

OFl~1cE

i4UG27

2003

STATE OF ILLINOIS

PoJ/utj~~~

Control Board

)

)

)

)

)

)

)

)

)

)

)

NOTICE OF FILING

PCB No. 03-22 1

(Pollution Control Board

Siting Appeal)

TO:

See Attached Certificate of Service

Please take notice that on August 27, 2003, we filed with the.Illinois Pollution Control

Board an original and nine copies ofthis Notice of Filing, Response ofthe Village ofCary With

Respect to Co-Petitioners’ Motion to Strike Village ofCary’s Brief and Motion

for Sanctions

Submitted as a Public Comment to the extent Required by the Board and Revised Brief on

BehalfofAmicus Curiae Village ofCary, copies ofwhich are attached and hereby served upon

you.

Percy L.

Angelo, Esq.

Patricia F. Sharkey, Esq.

Kevin G. Deshamais, Esq.

MAYER, BROWN, ROWE & MAW LLP

190

S. LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

VILLAGE OF CARY

By

THIS DOCUMENT HAS BEEN

PRINTED ON RECYCLED PAPER

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CERTIFICATE OF SERVICE

Percy L. Angelo, an attorney, hereby certifies that a copy ofthe foregoing Notice of

Filing, Response ofthe Village ofCary With Respect to Co-Petitioners’ Motion to Strike Village

of Cary’ s Brief and Motion for Sanctions Submitted as a Public Comment to the extent Required

by the Board and Revised Briefon BehalfofAmicus Curiae Village ofCary was served on the

persons listed below by facsimile and by U.S. Mail, or by personal delivery in the case of

Hearing Officer Halloran, on this 27th day ofAugust 2003.

David W.

McArdle

Charles F. Heisten

Zukowski, Rogers, Flood

& McArdle

Hinshaw and Culbertson

50 Virginia Street

100 Park Avenue

Crystal Lake, IL

60014

Rockford, IL

61105-1389

Hearing Officer

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center

Suite 11-500

100

West Randolph Street

Chicago, IL 60601

~cL~ng~~

Percy L.

Angelo

Attorney for Village ofCary

Mayer, Brown, Rowe & Maw LLP

190

South LaSalle Street

Chicago, Illinois

60603

312-782-0600

THIS

DOCUMENT HAS BEEN

PRINTED ON RECYCLED PAPER

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RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOA1~W~

OFFICE

AUG

272003

LOWE TRANSFER,

INC. and

)

MARSHALL LOWE,

)

STATE OF ILLINOIS

)

Pollution

Control Board

Co-Petitioners,

)

)

PCBO3-221

vs.

)

(Pollution Control Board

)

Siting Appeal)

COUNTY BOARD OF

MCHENRY

)

COUNTY, ILLINOIS,

)

)

Respondent.

)

Response of the Viiiag~

of Cary With Respect to Co-Petitioners’

Motion to Strike Village of

Cary’s

Submitted

as a Public Comment to the Extent Required by the Board

Now comes amicus curiae, the Village ofCary

(“Village” or “Cary”), by its attorneys and

provides this

response with respect to Co-Petitioners’ Motion to Strike Village of Cary’s Brief

and Motion for Sanctions (“Lowe Motion”).

To the extent the Board determines that the Village

is

not permitted to directly respond to Co-Petitioners motion directed against the Village brief

amicus curiae and requesting sanctions against the Village it is asked that the Board consider this

document as a public comment in this matter.

1)

Cary has obtained

a copy ofCo-Petitioners’ Motion to Strike Village ofCary’s

Brief and Motion for Sanctions.

Even though his motion seeks sanctions against the Village and

seeks to strike its

brief, the Co-Petitioners did not serve it upon the Village or otherwise provide

any

notice to the Village, even as a courtesy.

2)

The Village, on behalfof its citizens, asks leave to respond to the Lowe Motion

by way ofthis

response and/or public comment.

Since the Lowe motion relates solely to the

Village’s brief, the Village suggests that such a response is

appropriate under the circumstances,

and that allowing the Village to respond would promote the interests offairness.

THIS DOCUMENT

Is

FILED ON

RECYCLED PAPER

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3)

Co-Petitioners move to strike the Village’s brief as overlong.

The Village did not

intend to violate any requirement as to the length ofthe briefbut understood itself to be in

compliance with the instructions as to post-hearing filings provided at the Pollution Control

Board hearing.

4)

Toward the close of the hearing in this matter, the Hearing Officer consulted off

the record with the attorneys for the parties as to the briefing process and then i~ivited

the

attorney for the Village ofCary to join those discussions, explaining that he had previously

discussed those issues with the parties in

status conferences.

He provided a schedule for briefing

which made the parties’ main briefs due August 22, a Friday,

and the briefofthe Village ofCary,

as well as public comment, due the following Monday.

Reply briefs for the parties were not to

be due until the,end ofthe week ofAugust 25, later extended to

September 2, 2003.

There was

no discussion ofthe required length ofthe briefs.

After the proceedings went back on the record,

the Hearing Officer announced the briefing and public comment process.

Again there was

no

discussion ofthe required length ofbriefs orpublic comments.

5)

Co-Petitioners’ brief was sent by delivery service to the Village of Cary, not

arriving Monday, August 25, the same day Cary’s response was due.

6)

Despite the very

limited time to

respond, Cary filed its brief on time (overnighting

copies to

attorneys for the Co-Petitioners and the County).

7)

As the Board is aware, the record in this matter is almost 4000 pages long,

encompassing eleven very long days of testimony and numerous witnesses presented by

Co-Petitioners

and objectors.

The Village of Cary was the most active participant before the

County, attending throughout the hearing, presenting five ofthe six expert witnesses for

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THIS

DOCUMENT

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objectors and becoming fully familiar with the voluminous record.

The citizens and other

objectors have relied on the participation of the Village to keep them informed and to address the

issues of common interest.

8)

Co-Petitioners have appealed under the manifest weight ofthe evidence standard

as to four criteria on which the application was denied (criteria 2, 3 and

5

as well as the

unnumbered experience criterion) as well as several additional matters.

The numerous

matters

under appeal as well as the voluminous record make it extremely difficult to discuss the issues

involved and provide the record support desired in severely limited space.

Co-Petitioners have

suggested

on numerous occasions that objectors have made, are making or will make arguments

outside the record.

This is not correct.

The Village is very satisfied to rely’ on the very strong

record assembled by the County, and has believed it desirable to demonstrate that record support,

not only to support the County decision, but also

to assist the Board in

dealing with the

voluminous record.

This

is especially so where the Village is the sole

objector participating

formally as amicus curiae, in which role it has tried to address for the benefit ofthe Board the

evidence presented by citizens and other objectors in the record below.

9)

The Co-Petitioners’ briefing ofthis record may encompass up to

100 pages,

including its main briefof 50 pages and

its reply brief, presumably also of 50 pages.

The

Co-Petitioners seeks to limit the Village’s brief to 20 pages.

This is very

one-sided.

It is very

difficult, indeed the Village respectfully suggests that it is not possible,

to

deal with the multiple

issues raised by Co-Petitioners and the County record in 20 pages.

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10)

The Village ofCary had no intention of violating the Board’s requirements or the

instructions ofthe Hearing Officer, but simply did not understand that

in light of the record and

issues presented, that its post-hearing filing was to be limited to 20 pages.

11)

In light ofthe multiple challenges raised by Co-Petitioners and inherent

complexities of the voluminous record, the Village ofCary believes that its

briefwill be helpful

to the Board in considering the issues

in this case, and respectfully requests that the Board accept

the

Village’s brief as filed.

Alternatively, should the Board choose not

to accept the Village’s

brief as filed, in

order to preserve

its right, on behalf ofits citizens, to provide an argument and

record summary ofthe County proceedings, and to assist this Board in

its consideration ofthe

issues, Cary has prepared a revised briefof32 pages and

seeks leave of the Board and/or the

Hearing Officer to file such revised brief

Despite substantial efforts it has not been possible

for

the Village to limit its discussion further without sacrificing issues ofwhich it believes this

Board should be apprised.

12)

Such filing should

cause no prejudice to the Co-Petitioners.

No new material has

been added and the Applicant has had Cary’s full argument

since at least August 26, one week

prior to the filing

date for its

Reply.

A copy ofthis revised brief is being sent by facsimile to Co-

Petitioners’ attorney with this document.

13)

Accordingly, the Village ofCary, asks the Board

and/or the Hearing Officer to

accept the Briefof the Village as filed August

25,

2003.

Alternatively, the Village asks leave of

the Hearing

Officer and/or the Board to file the attached Revised Brief on BehalfofAmicus

Curiae Village of Cary of 32 pages instanter.

To the extend the Board and/or Hearing Officer

order that Cary’s Revised Brief be filed, Cary asks that the Appendices to

its original brief,

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THIS DOCUMENT IS FILED ON RECYCLED PAPER

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which in several cases are color reproductions, be accepted as appendices to its Revised Brief.

If

desired by the Board, Cary will file additional copies of its Revised Briefwith the Appendices

attached.

14)

Applicant seeks sanctions against the Village ofCary but has not seen fit to serve

or otherwise provide Cary even with a courtesy copy ofits

motion.

While entirely unfair, it is

also inappropriate to sanction a participant in

a manner which is essentially ex

parte.

15)

The Village intended no

disrespect to the Board and its rules or to

Co-Petitioners

by its filing.

Indeed, its primary goal was to provide a summary ofthe record as to the issues

under review, for the benefit ofthe Board, and also to lay to rest any concerns that the arguments

ofthe objectors and citizens in this case were outside the record.

While

Co-Petitioners seek

sanctions, there is no harm orprejudice to Co-Petitioners which, in fact, have been provided a

more extensive example of supporting evidence and have had, and will have in comparison to the

minimal time accorded the Village of Cary,

a generous amount oftime to respond.

Respectfully Submitted,

The Village ofCary

Dated:

August 27, 2003

By _______________________

One of i

s

Attorneys

Percy L. Angelo

Patricia F. Sharkey

Kevin G. Desharnais

Mayer,

Brown, Rowe &

Maw, LLP

190

S.

LaSalle Street

Chicago, IL 60603-3441

(312) 782-0600

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THIS DOCUMENT IS FILED ON RECYCLED PAPER

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LOWE TRANSFER, INC. and

)

MARSHALL LOWE,

)

)

Co-Petitioners,

)

I

~l130

)

PCBO3-221

‘‘

OIS

vs.

)

(Pollution Control ~

O~

~

Board

)

Siting Appeal)

pü1IutI~

Co

COUNTY BOARD OF MCHENRY

)

COUNTY, ILLiNOIS,

)

)

Respondent.

)

Revised Brief on Behalf ofAmicus Curiae Village of Cary

The Village of Cary is adjacent to the proposed Lowe Transfer Station and participated

actively as a party objector before the McHenry County Siting Committee.

During the

eleven days ofhearing Gary and the other objectors presented six expert witnesses in

opposition

to the proposed siting.

Cary appreciates the opportunity

to participate as amicus curiae before

the Pollution Control Board (“PCB” or “Board”), and provided a statement through its Acting

Mayor Steve Lamal in the Board’s hearing

in this case.

Gary strongly supports the denial of

siting

by the McHenry County Board.

Its

discussion below relies entirely on the record made

before the County as to the criteria which the County

found had

not been met, and although the

standard for review is whether the County’s decision is against the manifest weight of the

evidence, in fact, based on the assembled record, the County

could not have reached any result

other than to deny siting.

The Village ofGary brief will address the Lowe claims that the County’s

decision below

is against the manifest weight of the evidence,

that the record fails to show any basis for the

County decision and that the County improperly considered the experience ofthe Applicant.

Paragraphs 4(a), (c) and

(d) ofthe Lowe Petition.

For the additional

Lowe claims regarding the

host fee and

the compliance ofthe County decision with County rules, Paragraph 4(a) and (e) of

THIS DOCUMENTIs

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the Lowe Petition, as well as for its

discussion of the manifest weight ofthe evidence standard of

review, Cary

relies on and supports the brief submitted on behalfofMcHenry County.’

I.

The

Experts

Presented by Objectors Were Well Qualified, Credible, And On Many

Dispositive Points Their Opinions Were Unchallenged

In his main brief Mr. Lowe includes a discussion ofthe experts who testified, a

discussion which is very one-sided.

See e.g.

Lowe Br.

8 et seq.

This, ofcourse, is not the whole

story, and the Board is referred to the record below for the full description of the qualifications of

objectors’ experts.

A summary of the evidence concerning these qualifications

is provided in

Attachment

1

to this Brief

Objectors’ experts are highly qualified.

The objectors’ experts are practicing professionals, not professional testifying experts.

Far from a liability, the County Board members were entitled

to

give their views added weight as

a result.

The County

was entitled

to

consider this orientation where there was a conflict in the

evidence.

The County was also

entitled to consider inconsistencies in the experts’ testimony.

Mr.

Lowe makes much of Mr. Gordon’s role in teaching a course

on transfer stations

and

preparing certain manuals.

At hearing Mr. Lowe’s attorney

objected to consideration ofthose

same manuals.

See

e.g. Tr.

5-7,

C00181.2

Mr. Lowe and his

witness Mr. Gordon

also objected

when it was shown that the manuals are inconsistent with Mr.

Gordon’s design and operating

plan for the Lowe station.

See

e.g. Tr.

56-57,

69-70, 72-76, C00181; App. Ex.

8, pp. 7-24, 10-

21, C00238; App. Ex.

10,

pp. 36-37, C00240

(manual recommendations for high

daily volumes

ofwashwater for cleanliness, vector management and regulatory c.ompliance,

rather than

The Lowe Petition also

claims that

“the record fails

to show

any

basis for the

County Board’s decision.”

Paragraph 4(d).

The Lowe Petition does not explain what this means and it misstates the applicable

legal standard

which

is “manifest weight of the evidence.”

As

discussed below this claim

is also

evidently

wrong.

2

Transcript

references before the

County Committee are

cited Tr.

—,

followed by the designation

for that

volume found in the

Index of Record.

References to the transcript of the PCB hearing held August

14, 2003,

will be

PCB Tr.

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washing once per week as proposed by Mr. Gordon); Tr. 45-46,

52,

COOl82; App. Ex.

10, p. 43,

C00240 (manual recommendation to orient transfer building with its closed side to the prevailing

winds to control litter and odors.

Mr. Gordon did just the opposite, leaving the usually open side

to the west, facing the McHenry County Conservation District Hollows conservation area

(“MCCD” or “Hollows”), to the west).

Mr. Lowe may argue that the manuals are overly

conservative, but the County Board members were entitled

to

conclude that Mr. Gordon’s

design

was not

as conservative or state of the art as he claimed, and to rely more heavily on the contrary

opinions ofobjectors’ experts.

Finally, on many important points, there was no disagreement between the experts.

As

discussed below, no one challenged Mr. Larry Thomas’ testimony for objectors as to

the

movement ofshallow groundwater swiftly offsite to Lake Plote, Lake Atwood, Lake Killamey

and certain “high quality”

and “irreplaceable”

area wetlands.

No one

challenged Mr.

Nickodem’s

testimony ofonsite spills or leaks which can get into stormwater.

No one

questioned that the site

would have odors, litter and noise.

No one questioned Mr. Andrew Nickodem’s Auto Turn

program showing larger transfer trailers can’t make the turns onsite.

No

one questioned, indeed

Mr.

Lowe’s own data show it, that the only owned residential area in the state near a transfer

station has many homes showing negative or minimal appreciation, under

1,

despite an area

norm of 5-6.

The County was entitled to look at these areas ofagreement and

find that, with

everything else presented, they provided strong support for denial.

II.

The Record Is Clear That the

Facility Is Not

Located, Designed or Proposed To

Be

Operated So As To Protect The Public Health, Safety and

Welfare

Criterion 2

of Section 39.2 requires that the facility be

located, designed and proposed

to

be operated to protect the public health,

safety and welfare.

Mr. Lowe devoted almost

no time to

this issue at the PCB hearing other than to argue that the proposed site was zoned

industrial, as if

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that answered every possible question.

In fact, the experts presented by objectors, experts in

transfer station design and operation, groundwater and surface water, demonstrated serious

environmental risks posed by the site location, its design, and its operating plan.3

A.

The Proposed Site

Threatens Groundwater, Lake Plote, Lake Atwood, Lake

Killarney and High

Quality Wetlands

Because ofthe site’s location near several sensitive uses and the Lowe proposal to

use an

infiltration chamber to handle stormwater flows, the groundwater at this site is especially

vulnerable.

The Village ofGary’s groundwater expert, Larry Thomas from Baxter & Woodman,

an engineer with extensive practice in hydrogeology in the area, testified to the groundwater

concerns at the site, Tr. 6-59, C00l88; Tr.

5-12,

C00l89; Gary Ex. 2,

COO326, expanding on some

misleadingly

vague and wholly inadequate descriptions in the application.

See Vol.

1, 2-4,

C00001;

Vol.

2, App. A, C00002.

Without providing a groundwater flow map, the application

says that groundwater flows from the site to a lake on the MCCD Hollows conservation area,

which it fails to name.

Mr. Thomas testified that

shallow groundwater from the site flows from the

site to the north and northeast to Lake Plote on the neighboring Plote property, then to

Lake

Atwood on the MCCD property and then to wetlands northeast ofthe site.

To the extent the

groundwater reaching Lake Atwood exits as surface water, it

flows to Lake Killarney.

All ofthese

sensitive water bodies are in close proximity to the site.

The groundwater flow is relatively rapid,

56 to

120 feet per day. Tr.

25,

C00181.

This testimony was not disputed. See. e.g. Tr.

87, C00186.

Unfortunately, the uses impacted by the site groundwater are highly sensitive.

The

significance of Lakes Plote, Atwood and

Killarney are self-evident and

it is irresponsible for the

In many respects the evidence supportingthe

County’s findings on

criteria 2

and

5

will overlap,

e.g. the

nature ofthe

site will

necessitate certain

elements inthe plan

of operations and the plan of operations will directly

address both criteria

2

and

5.

To

avoid repetition, the discussion of criterion

2 is incorporated in the

discussion of

criterion

5,

and vice versa.

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application not to discuss them.

(Cary Ex.

5, C00334

& C0O334A, attached hereto as

Appendix A,

is a site aerial showing the site and the surrounding uses, including the lakes and

wetlands).

Especially serious, however, is the failure to discuss the impacted wetlands.

Mr.

Lowe’s consultants testified there were no wetlands onsite, but did not address offsite impacted

wetlands.

Tr.

138,

COO178.

The Lowe application, however, includes a letter from the U.S. Fish

& Wildlife Service noting the presence of “high quality,” “unmitigatable”

and “irreplaceable”

wetlands designated L-72, in the site vicinity.

Vol. I, 2-21,

C00001, see Appendix B,

attached

hereto.4

Unaccountably, Lowe’s application did not provide the locations ofthose

wetlands, Tr.

32-34, COO 181,

50

the Village ofGary obtained and provided the applicable map for the record.

The mapped wetlands, designated L-72,

are immediately north and east ofthe site, directly

downgradient of the site and directly at risk from site groundwater and other site activities.

Gary

Ex.

14,

CO0394.

The County record fully supports the conclusion, indeed the record demands it,

that the site poses an

immediate threat to groundwater and surface waters, including irreplaceable

wetlands, which the Applicant had sought to obscure by leaving his application incomplete.

Mr.

Thomas’ testimony concerning shallow site groundwater was undisputed, and, indeed, Mr. Lowe

barely touches on these issues in his main brief

The failure to address these issues in the

application raises serious concerns about the credibility of the consultants who prepared the

Lowe application.

(For Mr. Thomas’ additional testimony about deeper groundwater beneath the

The standard Fish & Wildlife Service Endangered Species Act clearance letter identified the presence or

absence of endangered

species.

It

specifically cautioned that

it did not provide clearance with regard to possible

impact

on these wetlands due to contaminated groundwater flows.

With

regard to wetland L-72

the

letter said:

“ADID site #L

72 is a high quality habitat wetland which is considered “irreplaceable” and unmitigatable

based on

the factthat the

complex biological systems and functions that this site supports cannotbe successfully recreated

within a reasonable time frame using existing restoration or creation methods.

This site is designated

a McHenry

County Natural Area Inventory.

In addition,

this ADID site exhibits high water quality values for

shoreline/streambank stabilization and stormwater storage.”

As

Mr. Nickodem pointed

out,

even without

contamination

you can impact

a wetland just by changing the flow to it.

Tr.

19-20, C002I4.

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Tiskilwa Till and its flow toward the Village of Gary municipal wells, see the references at

Attachment I, Item 2).

There was also general

agreement that the two downgradient monitoring wells proposed

by Mr. Lowe would monitor only the top of the shallow aquifer, missing contaminants such as

solvents

and pesticides

which are heavier than water and known as

“sinkers.”

Tr. 36-39,

COOI8O; Tr.

34-37, C0O187; Tr.

51-52,

COOI87; Tr. 47,

COO189.5

And Mr. Lowe’s consultants

testified they did not know whether they would

in fact be

monitoring for the kinds of

contaminants actually found in municipal wastes.

Tr. 41-43, COO 181.

The groundwater is at special risk

at the Lowe site because ofthe stormwater system

Mr.

Lowe has proposed.

The stormwater infiltration system proposed for the site is designed to

inject stormwater into the ground and the groundwater without provision for sealing offspills or

possible contamination.

There is no question that a garbage transfer station can put contaminants

in its stormwater

—

from spills, from broken hydraulic lines, from trucks dripping engine oil and

from liquids from the waste which is tracked out ofthe tipping floor, drips off trucks, or is

formed when stormwater comes in contact with wastes on the transfer station ramps.

Tr.

84-85,

COOI8I; Tr. 29-30, CO0184; Tr.

58-60, C0O216; Tr.

14,

COO217.

Such contact water, which is

considered leachate, Tr. 48-49, COO 181, can easily include hazardous wastes.

The County’s own

figures show that 4080 lbs. ofsuch hazardous wastes, (.34

of the waste load of600 tons per

day) will pass through the site each day.

Tr.

3 3-34, COOl 87.

Using Lowe’s proposed infiltration

system, any contaminated flows would

go directly to groundwater.6

The Lowe witness also

agreed that

it

is usual when monitoring groundwater to put in an upgradient and

downgradient well.

The Lowe application calls only for downgradient wells.

Tr. 84, COO 199.

6

Mr. Lowe’s brief states cryptically that

Mr. Thomas’ references

to hazardous waste were in error.

Lowe Br.

10.

This

is not correct.

Mr. Thomas referred to the County data in Lowe’s application as to the amount ofhazardous

waste in the County waste stream which would

pass

through the transfer station.

While much ofthis material may

(cont’d)

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The evidence as to spills, leaks, tracking ofleachate and contaminated stormwater was

supported by the testimony ofGary’s expert witness,

Andrew Nickodem, an engineer with Earth

Tech who designs transfer stations and has actually run transfer stations, publications prepared

by Mr. Lowe’s own experts, by

Marshall Lowe himself,

and by the witnesses who visited transfer

stations and the video oftransfer station operations presented at hearing.

See e.g.

discussion

above, as well as Tr.

12-14,

COO21O; Tr.

9-56, COO215; Gary Exs. 26-27 and 37, COO421-422

and C00463.

Once in the stormwater system most contaminants will move directly to the groundwater.

Oils

and gasoline, which are lighter than water, may be trapped by the catch basins.

All other

contaminants heavier than water (many solvents), or dissolved in

water, will pass right through

the catch basins and into the groundwater.

There is no capability to valve offa spill or to catch a

contaminant for testing before it goes to

groundwater, Tr.

82-83, GOOI8I.

0

Why did Mr.

Lowe’s consultants design such a horrendous system?

Basically it appears

the infiltration

system was chosen

because the site is not big enough to have a more common

stormwater

detention

basin.

While such infiltration systems are relatively new, and Mr. Lowe

has never run one, he commented that land for detention basins is so expensive now that an

infiltration system, which can be put under a parking lot or elsewhere underground, is more

attractive.

Tr.

16,

18,

GOO2OI.

More attractive perhaps if you don’t consider the potential for

groundwater damage from onsite wastes.

(...

cont’d)

be household

hazardous waste, such as paint thinner, cleaning products or nail polish remover, and thus not RCRA

regulated hazardous waste, it nevertheless is hazardous waste with the

same chemical

properties as regulated

hazardous waste and poses the same threat to groundwater if spilled or leaked.

That Mr. Lowe may

not have the

experience to appreciate this

risk

is one of the issues the

County was entitled

to consider.

See

Section V below.

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Mr. Lowe’s record on

stormwater management is not strong.

Mr. Lowe’s

stormwater

from his current site is being discharged to the Hollows conservation area.

It is not disclosed in

the application but it was testified at hearing that runoffon the access road to the site would also

go to the existing Lowe Enterprises property and then by Lowe’s existing

stormwater pipe to the

Hollows.

Tr.

41, COO 186.

This

means dripping leachate from garbage trucks on the

long access

road will be discharged to the Hollows.

For a number ofthe reasons described, the McHenry

County Conservation District voted to oppose the Lowe siting.

Their resolution was in the

record below at CO4057-7235, App.

11, and

is attached hereto as Appendix C.

Mr.

Lowe’s transfer station is designed and proposed to be operated using an untried

storniwater system at an unusually small site which will infiltrate contaminated stormwater

directly into groundwaters moving rapidly toward very sensitive groundwater, surface water and

wetland uses.

And this system is to be run by an individual with no experience and no

sensitivity

for environmental

compliance.

See discussion below at Section V.

The

County

Board’s

decision

to deny

the

application on

the

Section

2

criteria

is

fully

justified,

and

in fact is required,

by the

groundwater and

surface water concerns

alone.

B.

The Proposed Site Threatens Its Neighbors With

Odors, Litter, Dust, Diesel

Emissions, Noise and Vectors

There was widespread agreement, including agreement by Mr.

Lowe, that transfer

stations will have garbage odors that extend offsite.

See e.g. Tr. 57-59, C00183; Tr.

24,

COO2O1;

Tr.

35, C00202.

There will also be dust and

diesel emissions.

See

e.g. Tr. 62,

COO18O.

With the

MCCD Hollows property and the Plote property right next door, the existing Bright Oaks

subdivision

only

1300 feet away, and no room onsite to provide a buffer for odors to disperse,

the

County’s denial

of siting based on criteria

2 could also have rested on the issue ofodors

alone,

Indeed the

statute says

that

under

the best

of

circumstances, e.g. with an

adequate buffer

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zone, transfer stations can’t be closer than

1000 feet to residential areas and construction and

demolition debris recycling can’t be closer than

1320 feet.

See

e.g. 415 ILCS

5/~21(w),

22.38.

The Lowe application presents

anything but the best of circumstances.

A manual prepared by

one of Lowe’s witnesses for the Solid Waste Association ofNorth

America

(“SWANA”), App. Ex.

8,

pp. 43-44, COO238, recommends

setbacks from neighboring

areas, with downwind neighbors (the Plote property and

Bright Oaks are downwind) needing

greater setbacks.

A USEPA

manual recommends facing the blank side ofthe transfer building to

the prevailing wind to provide protection, a recommendation Mr. Lowe’s consultants did not

follow because the open side oftheir building faces to the west toward the adjacent Hollows.

App.

Ex.

10, p. 43,

C0O240.7

The

site is simply too close to other uses.

Mr.

Lowe

and his

consultants

provided

absolutely no

evidence on air quality impacts to

the

site neighbors.

No

analysis

of odors.

No

consideration

of diesel

emissions

from waiting

trucks.

Tr. 25-30, COO 182.

Board

Member Koehler

specifically

asked at

the

hearing

if the

Applicant was going to provide

such data.

Tr.

16,

COO 187.

Air

quality

can be measured, diesel

emissions

can

be identified and

modeled.

This

was not done.

Mr.

Lowe also

agreed

that noise could

be an issue, Tr.

24,

COOl 82, but failed to address it

except to argue

that the building orientation (closed to

the northeast), plantings, and the use of

ramps

which would keep transfertrucks under berm levels at some points

would help mitigate

Mr. Lowe’s attitude toward these SWANA and USEPA manuals and one written for DuPage County was

highly unusual.

After

marking them as

Applicant’s exhibits and offering them

to the Committee, App. Exs.

8,

9

and

10, CO0238, C00239,

C00240, Mr. Lowe’s attorney sought to prevent any attempts to referto these manuals, written

and edited

by

Mr. Lowe’s witness, Mr. Gordon,

for the purpose of showing that

they endorsed

a more protective

approach than

that

offered by Mr. Lowe.

See

e.g. Tr. 5-7,

53-56,

COO18I.

Mr. Gordon’s attempts to distinguish

what he

has

said for USEPA,

for the County of DuPage and for SWANA from what

he did at the Lowe site (saying

essentially that smart people don’t have to follow

the

published standards), see e.g. Tr. 8-9, C00181,

are deeply

troubling and

could

have been considered

by

the County in weighing the credibility of Mr. Gordon’s work and

testimony.

Bottom line, the manuals recognize the

need for setbacks and buffers.

Mr. Lowe hasn’t provided them.

He

can’t.

He doesn’t have room.

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noise impacts to uses to the

east, such as Bright Oaks.

The record shows, however, that the

exhaust pipes from semi tractors will extend up

above the berms and that truck traffic, including

backup alarms, will take place outside the building.

Of course,

the building orientation will also

do nothing to help or protect the MCCD Hollows conservation area, which will directly face the

long length ofthe access road as well as the open

side ofthe transfer station.

Tr.

71-73, CO0221;

Tr.23,COO182.8

Finally, it is clear that litter is a problem at transfer station sites.

While Mr. Lowe’s

consultants said they would initially recommend litter pickup efforts in Bright Oaks, at least until

it

was clear that the subdivision

would not be impacted, Mr. Lowe rejected that idea.

So far the sole

agreement in his

application is to have his limited staff pick up litter along Route

14, a very

minimal commitment in

light of the proximity to the Hollows, the Plote property and Bright Oaks.

C.

Mr. Lowe’s Only Argument For Site Suitability Rests On Its

Industrial

Zoning Even Though the Standard ofSection 39.2(u) Is Much Broader

Mr. Lowe’s

consultant named two key items making

the site favorable from the

standpoint

of protection ofpublic health, safety and welfare

—

those items being the access to

major roadways

and the location in

an industrial zone.

Notably, he said nothing about

environmental

concerns.

Tr.

136,

COO

178.

No testimony was provided that

this is

a good site

environmentally.

Instead

Mr.

Lowe’s consultants testified that the site was already selected by

Mr. Lowe before they were hired.

Tr.

53,

G0O182.9

~

Mr. Lowe produced a report by

a

noise

consultant as part of his public

comment after the hearing was closed and

when there was no

opportunity for cross-examination, CO3993-403 1.

This turned out to be a pattern.

See e.g. the

public

comment on Mr. Lowe’s legal compliance, discussed below at Section V.

Even without cross-examination,

however,

this public

comment shows substantial noise

levels from the proposed operations, close to the state

limits

for backup alarms at Bright Oaks,

1300

feet away.

There

is ~p estimate ofnoise

impacts

for the much closer

Hollows Conservation Area or the Plote property and the implication must be

that noise

levels

from equipment and

backup alarms will violate state standards at

those

locations.

Oddly, Mr. Lowe’s brief complains that Cary resolved to oppose the transfer station before hiring its

experts.

Lowe Br.

at

1.

The situations

are hardly comparable.

Cary had the

benefit of its

own planning experience,

(cont’d)

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Mr. Lowe has argued that under the applicable zoning the site could have an asphalt

concrete facility, a meat packing plant, a rendering plant, a slaughterhouse, fertilizer products,

smelting, a sawmill, a trucking terminal and so on.

PCB Tr. 23;

Lowe Br.

27.

Putting

aside the

obvious, that at

2.64

acres the site would also be too small for most of the uses threatened by

Mr. Lowe, as indeed

it

is too small for a transfer station,

it is submitted that Mr.

Lowe

is missing

the point.

First, the Environmental Protection Act assumes that the decision of the County Board

will

consider a wider range of environmental

and

safety concerns that those traditionally

encompassed by local zoning, including surface and groundwater quality and air quality.

Industrial zoning does not answer the questions mandated by Section

39.2

of the Act, as to which

the County’s decision is

supported by unrebutted

evidence in the record.

Second,

consistent with

his overall

attitude toward environmental compliance, discussed at Section

V

below, Mr.

Lowe’s

argument assumes that he

would be able to operate the uses’listed without any consideration for

their environmental impacts.

Indeed, Mr.

Lowe’s attorney, Mr.

McArdle sought to bar any

discussion of zoning operational and performance standards from the County hearing, even

though his entire

argument rests on the property’s zoning.

See e.g. Tr.

71-72, COO2O7.

In fact,

local zoning rules as well

as Pollution Control Board rules and the

Environmental Protection Act

itself impose standards to prevent those listed uses from being a burden to the neighborhood.

For example, under McHenry County requirements,

if

used for any of the uses referenced by Mr.

Lowe, the site would require a

100

foot setback from

any residential use

as well as screening and

other protections.

McHenry County Zoning Ordinance, Gary Ex.

56,

pp.

937

and 947, C0O884.

The Environmental Protection Act, of course, imposes additional requirements.

Industrial

(...

cont’d)

its own

Comprehensive Plan which was inconsistent with the Lowe proposal and

its intimate familiarity with the

area by which to evaluate the acceptability ofthe Lowe proposal.

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zoning, if relevant, is meaningful only

in the context of the impacts that zoning would permit and

those impacts

are

limited by the setbacks and buffers and performance standards which

Mr. Lowe sought to exclude.

We

are

long past the era, if it ever existed, when you could do

whatever you wanted with yourproperty without regard to your neighbors or your community.

Industrial zoning is not a license to pollute.

If it were

so, there would have been no need for the

Environmental Protection Act in the first place.

D.

Mr. Lowe’s Argument That Certain Elements ofHis Design

and Operating

Plan Would Mitigate

Concerns Regarding His Location Is Unavailing

At the PGB

hearing, Mr. Lowe attempted to argue, apparently with respect to both

criteria 2

and

5,

that

certain proposed design and operating features were state ofthe art and

would mitigate any problems with the site location.

PCB

Tr.

34.

He

proceeded by trying to

compare these

allegedly desirable measures to features proposed by the Village of Gary’s witness

Andrew Nickodem forthe Woodland facility in Kane County,

a facility for which siting has been

denied.

By selection Mr.

McArdle argued that the Lowe

features were as good

or better than the

Woodland features, but the whole record does

not bear him out.

For reason of space, the Board

must be referred to the summary of the testimony on this point in Attachment

1, Item 3,

but the

contrast is striking between Mr. Nickodern’s designs, with

larger sites, paved and curbed sites,

valved catch basins to isolate spills, detention ponds, sprinkler systems, water supplies, tollway

type noise barriers

and adequate buffers and Mr. Lowe’s site with no

curbing, gravel site areas,

“vegetative

waterways,” an

infiltration system

without mechanisms for isolating spills, a burning

pit and sensitive

areas such as the Hollows, the Plote property and Bright Oaks next door or

within

1346 feet.

Lowe does have a concrete building with a liner under the building alone.

Lowe has to

rely on luck for any accidents, leaks, spills or drips which happen anywhere else on the site, even

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on the ramps to and from the transfer building, which his infiltration

system will send straight to

groundwater.’°The County could have readily determined, and obviously did, that the lined

concrete transfer building did not overcome the bad site or the other serious risks ofthe site

design and operation plan.

Mr. Lowe claims that County Board members commented that his design was state ofthe

art and overdesigned.

Lowe Br.

11.

The two comments quoted occurred early on the third day

ofhearing, before any of objectors’ testimony.

Significantly, the two Board members made the

comments in light oftheir concerns that the

Lowe protections were not broad enough,

foreshadowing the very points made later by the objectors.

Committee Chair Brewer asked if the

barrier kind of protection provided

by the liner couldn’t be extended to more ofthe site.

Tr.

65,

CO0186.

In light ofLowe’s testimony that he was providing an

overdesigned facility, Board

Member Koehier asked why the

Lowe experts could not provide good information on

odors and

noise.

Tr.

16,

C0O187.

Clearly, the Committee

members were paying close attention to these

issues and

decided them against Mr. Lowe when they had the whole record, including the

testimony ofGary’s experts, before them.

Mr.

Lowe’s briefmakes frequent references to his claims that his facility exceeds

standards, is state ofthe art, is overengineered, or frequently is

“extraordinary”

(underlining in

original).

There are no Illinois regulations for transfer station design so the only bases for these

statements is the contradicted testimony ofthe

Lowe experts and Mr.

Lowe’s hyperbole.

Lowe’s attorney argued

at the

PCB hearingthat the amenities or mitigating elements to be provided by

Mr. Lowe in his design

were essentially eight:

the concrete building, the geomembrane liner under the transfer

building,the monitoring wells, the

long entrance road for queuing,

indoor tarping, indoor scales, the fire pit,

and the

fact of underground

loading.

PCB Tr. 45.

In addition to the points above,

Cary’s witness pointed

out that

several of

Lowe’s design features were either not advantageous (indoor scales,

underground

loading and radiation detection) or

were dangerous (indoor taping

and underground loading without adequate room

to

turn

on

the ramp coming out).

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Mr. Lowe makes up standards for irrelevant matters and claims to exceed them, but

leaves important

issues unaddressed.

As

Mr. Helsten forthe County pointed

out at the PCB

hearing, Mr. Lowe’s attorney argued by picking out nuggets of information here and there in the

record, hoping no one would notice the many elements ofcontrary data which the record also

contained.

As noted above, in many respects his “nuggets” were misstatements ofthe record, but

in any event it is the record as a whole which must be considered and Mr. Lowe must show that

the County’s decision was against the manifest weight ofthe evidence.

III.

The Lowe Transfer Station Is Not Located So As To Minimize Incompatibility With

The Character Of The Surrounding Area Or To Minimize

Of The Surrounding Property

In support ofhis

argument on criterion 3, Mr. Lowe at the PCB hearing relied on two

issues, he pointed again to his industrial zoning, and, apparently abandoning the damaging study

of Princeton Village in his own application, he referred to

two public

comment letters from

residents of Princeton Village in the vicinity of the Northbrook Transfer Station.

His arguments

are factually and

legally insufficient.

A.

The Applicant Focuses On Zoning and

Provides No Showing of

Compatibility With the Character of the Surrounding Area.

The application identifies the zoning of the surrounding area as primarily industrial, a

conclusion reached by assuming the Plote property is industrial

(even though the Applicant was

well aware, and had been for years, ofresidential development plans for the property as well as

its designation

as residential

in the Gary Comprehensive Plan).”

Consistent with that planning,

The extensive process of residential development planning for that property is laid

out in the testimony of

Mr. Cameron Davis, the Cary Village Administrator, Tr. 23-30, C00205, and Mr. Dave

Plote,

Tr. 4-10, C00210

(development discussions beginning in mid 80s

—

held up

by

litigation which

has been resolved).

See

also

Cary Ex.

22, C00404 & C00404A, Cary

Ex. C00398, C004O4 and C00404A, and extensivePlote exhibits I-I I, C0I 193-

1232.

Many years ago

Cary had extended water and sewer service

to the area in anticipation of this residential

development.

CO334 and C00334A, (blue and red lines showing water and sewer), provided as Appendix A to this

brief.

Mr. Lowe,

who bought his site in April 2002, Tr. 27-28, C00200,

was well

aware of this planning since at

(cont’d)

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the area is now zoned residential.

CO4057-7235, App.

4.

The application also assumed the

Hollows conservation area was industrial,

even though it has been reclaimed for many years and

is clearly devoted to very successful conservation and recreational open

space uses.

Mr. Lowe’s

witnesses made the same mistake, relying only on zoning not actual land, use in drawing their

conclusions.

See e.g. Tr. 73,

COO194.

On cross-examination the Lowe experts admitted the

unsuitability ofthe site as a matter ofland planning.

Tr.

14, C0O194.

These misassumptions

about actual land use render Lowe’s conclusions as to the nature of the area, see

Vol. I, 3;

p.

12

of23, G0000I, materially, in fact overwhelmingly, incorrect.

In fact, the only current heavy

manufacturing uses in

the area are Mr. Lowe’s two parcels and the neighboring Welsh Brothers

facility.

See e.g. Gary Ex.

5,

COO334 & GOO334A,

attached as Appendix A; Tr.

17-56, C0O203;

Tr. 6-67, COO2O5;

Tr.

75-98,

CO0208.

And the Gary Comprehensive Plan,

originally adopted

in

1982 and updated

in

1992, makes it clear that the ‘:area is designated forresidential and less

intensive uses.

Gary Ex. 21,

COO4O3.

For the convenience ofthe Board, the map from the Gary

Comprehensive Plan

is attached as Appendix No. D to this Brief.

Consistent with the Gary plan, the trend in the area is to increased residential uses.

Mr. Lowe himself described Gary as having evolved into a bedroom community.

See also

Tr.

11,

GOO2O5.

The Hollows property is now a very

successful, very cherished park, whose

Trustees have unanimously voted to oppose the transfer station.

CO4057-7235, App. No.

11,

found at Appendix C to

this Brief.

The Plote property is at the conclusion ofan extensive post-

mining reclamation process and is

aboutto

be developed as multiresidential pursuant to the Gary

Comprehensive Plan

and its

annexation by the Village.

The long-existing Bright Oaks

(...

cont’d)

least the period when

he

sat on the

Cary Village Board from

1983 to

1989, and indeed tried to expedite his siting

application in order to preempt the

Plote development.

Tr. 90-92, COO200; Tr. 20-2 I, CO0202.

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subdivision which Mr. Lowe’s expert, Mr. Peterman,

assumed was protected by an 8

to

12 foot

berm,

Vol. I,

§

3, p.

9 of 23, C0000 I, quite simply isn’t.

Testimony and pictures demonstrate

that there are Bright Oaks homes at the top ofthe level of the so-called berm which look directly

at the proposed site.12

Gary Ex.

18,

GOO400, several ofthose photographs are

also included as

Appendix No. E to this Brief.

Across Route

14, a business and commercial development is

planned by Mr.

Bill Kaper.

This development is of vital interest to the Village ofGary because

ofits need for tax-base diversification.

Impacts to this property weren’t even studied by Lowe.

Tr.

9-15,

C00205.

Nothing in the area is heavy industrial except Mr. Lowe and Welsh Brothers.

Another Lowe expert, Mr. Zinnen, agreed that the closest he had

previously put a transfer

station to a residence was 1100 feet

—

to a single residence

in Goles County.

He’d never worked

on a site so close to

a large subdivision.. Tr. 71,

COO183; Tr. 6-7, COOI84.

Applicant’s testimony

as to

compatibility was essentially an argument that the actual

surrounding uses should be ignored and planned uses should change and become industrial.

See e.g. Tr.

125, C0O193, Tr. 64, C00194 (Plote property should be

industrial

—

Hollows is zoned

industrial).

The County’s decision against him was fully supported, and

in fact inescapable.

B.

The Applicant’s

Own Data Shows

a Potential Serious Impact on

Surrounding Properties.

Mr.

Lowe’s analysis ofthe impact ofhis proposed site on surrounding property values

proves the opposite of what he intends.

The County Committee noted that and

was clearly

concerned by

it, going through extensive questioning

to

be sure it understood the data.

See e.g.

Tr. 77 et seq., G00220.

Mr.

Lowe himself has now realized that and, at the PCB hearing,

abandoned reliance on his own application.

The evidence, however, is clear and fatal to the

application.

12

A Lowe expert agreed there can be noise

at the

top of the berm from as far

as the area of the site.

hi.

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Mr. Lowe’s consultant, Frank Harrison, began his property value analysis by trying to

find residential subdivisions located near transfer stations.

In the entire state ofIllinois he found

only one, a fact which should demonstrate that transfer stations simply don’t belong near

residential areas.

He testified he wasn’t surprised there were no others since transfer stations are

an industrial use, Tr.

115,

COO 193.13

The one site Mr. Harrison found was the Princeton Village

subdivision across the Northwestern line railroad tracks from the Northbrook Transfer Station on

Shermer Road in

unincorporated Northfield Township, a subdivision which,

unlike Bright Oaks,

was built after the transfer station, and which, unlike Bright Oaks, is generally upwind ofthe

transfer station.

Tr. 67, COO19I.

In order to do his study,

Mr. Harrison drew an

arbitrary line

through the subdivision to create a target and control group, with the target group generally

closer to the station.

He did ~

analysis to

demonstratethat the control was a valid control,

unaffected by the station.

Thus his conclusion, that the target and controls both appreciated at..

about the same rate ofslightly over

1,

supposedly demonstrating a lack oftransfer station

influence, is entirely unsupported.

In fact, he admitted that if the entire neighborhood were

influenced by the transfer station, then he would expect about the same appreciation rate for both

target and

control.

Tr.

72, C0O193.

His data shows exactly that.

What his study did show,

a fact noted forcefully by Committee members at the County

hearing,

is that many properties in Princeton Village appreciated very little and several even

declined in

value over the period studied.

Seven properties declined in value, including

properties closer to

the transfer station;

18 of37 had

appreciation rates under

1.

See Princeton

Village appreciation rates from the Lowe application, C00001, which for ease of reference are

included in Appendix No. F.

This is a startling result for properties in north suburban Cook

13

Mr. Harrison

studied other sites

but his other studies

involved industrial neighborhoods

or nearby rental

properties,

Lowe Br.

30-36, and are not relevant to the Lowe effect on nearby residential or commercial properties.

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County where appreciation rates of5-6

may be expected.

Tr. 87,

COO22O.

In fact,

Northbrook, adjacent to where the site is located, has a rate of 16.

Bright Oaks’

appreciation

rate has been 9.8.

Tr.

54,

COOl93.

A more logical conclusion, and one closely explored by the

County members, see e.g. Tr.

69-74, COOl 94

(questioning by Board Member Koehler);

Tr. 79-80, G0022O (questioning

by Board Member Kiasen),

is that the transfer station did

significantly influence property values throughoutthe subdivision,

with the influence most

severe on those properties closest to the station.14

Bright Oaks’ appraisal expert, John Whitney, testified to many problems with the

Harrison studies.

His testimony appears at C0022O, V-3-13-O3.

Among other matters, he

testified that Mr. Harrison’s control properties were too close and were likely influenced by the

Princeton Village station.

Lowe’s study could be interpreted as showing a negative transfer

station impact throughout Princeton Village.

Tr.

42-43, 50-51,

75.

And he noted that the

1-2

average appreciation rate found in Princeton Village was not only incorrectly calculated, it was

also

“not

very good”

compared to the “significantly greater” rates he

would expect to see.

Tr. 45,

87-88.

He testified that the norm was

5-6.

Tr.

87.

He agreed with questions by Board

Member Klasen that on 30-37 Dartmouth Court in Princeton Village where four of eight homes

lost money

and one appreciated just 0.1

over 84 months,

and in Princeton Village as a whole

where

18 of37 homes had an appreciation rate under 1,

the rates were not good and suggested

problems.

Tr. 78-80,

88.

As Board Member Klasen described it, the data on home value

appreciation

in Princeton Village was “not pretty.”

Tr. 79-80.

14

Mr.

Harrison’s studies used (and Michael

McCann

whom he consulted recommended) targets within

roughly

¼

mile ofthe

station and controls over

3/4

mile away.

Tr. 47,

COOI9I.

Similar standards applied to

Princeton

Village would have made most of the

subdivision a target and would have disqualified any part for use

as

a control.

Mr.

Harrison later agreed there might be other possible controls

‘/2

mile or so away.

Tr. 37, C00194.

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Oddly,

at the PCB hearing Mr. McArdle, Tr. 28-30, criticized Mr. Whitney on the

grounds that he had replied to a Committee Member’s “hypothetical” fact scenario by saying he

couldn’t answer the question without a proper study.

See Tr.

80-81.

Mr. McArdle claimed that

without having done such a study ofa hypothetical question, Mr. Whitney’s testimony was

completely negated.

That’s unfounded.

It was Mr. Lowe who must submit an application, bears

the burden ofproof, faces the manifest weight ofthe evidence standard and must do the studies if

studies are required.

Mr.

Whitney’s testimony was that Mr. Lowe had, in fact, not properly

studied property value impact and he provided extensive testimony explaining why that was so

and identifying specific inadequacies.

That is a perfectly appropriate challenge to the sufficiency

ofthe application.

See e.g. CDT Landfill Corporation v.

City of Joliet, PGB

98-60 (March

5,

1998)

1998

WL 112497,

*8..*9, affd

303 Ill. App.3d

1119, 756 N.E.2d 493

(3d Dist.

I993)(Table).

Mr. McArdle’s argument proves too much and

emphasizes that the Applicant’s

own record

is insufficient to support a favorable

decision on criteria 3

because he had not

provided a valid study and the work he did

provide shows serious impacts on property values.

At the Pollution Control Board hearing, Mr. Lowe’s attorney did not refer to his client’s

own studies showing the devastating effect on Princeton Village, but to two letters he had

solicited from local Princeton Village property owners after the County hearing began and it

became apparent that his client’s study actually supported the objectors.

Without support, each

contended that property values had

increased.

Neither letter writer was present at the hearing, let

alone subject to

cross-examination.

Speaking charitably, it is possible they were referring to the

I

to 2

average overall increase, which is so much less than the surrounding area.

It is possible

they forgot

about the seven homes which lost value and the

18 which appreciated less than

1

despite a

strong market.

It is

clear that as current owners their interest is in

maintaining their

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own values.’5

What is stunning, however, is Lowe’s decision to abandon his application and

point instead to two letters of untested and manifestly insufficient public comment to support his

showing on criterion 3.

The County’s decision on this criterion was clearly correct, and indeed

there is no evidence in the application or in the record to the contrary.

C.

The Act Sets Required

Setbacks From Residential Property Which Confirm

the Propriety of the County Decision and

Bar Establishment ofthe Lowe Site

Even though he considered it in selecting his

site, Mr.

Lowe has argued that the

1000 foot

setback of Section 22.14 of the Act is somehow not applicable

in siting.

The residential setback,

in fact, is important in several ways.

Most directly,

Section 22.14 prevents establishment of a

garbage transfer station within

1000 feet ofa residence or a property zoned residential.

No such

station can be permitted.

Equally important, however, Section

22.14 is important evidence ofthe

legislature’s understanding of how close is too close to comply with criteria 2,

3

and

5.

As a

matter of law, even for an otherwise great site, less than

1000 feet would be too close.

Similarly, Section 2 1(w) ofthe Act states

that a construction and demolition debris site

cannot be any closer than

1360 feet to residences.

Such a site would not be likely to have odors

or groundwater impacts, but it is still too close as a matter oflaw.

In light ofthese legislatively established bare minimums, minimums which apply even

where the site itself has adequate buffers and

good protections for groundwater and surface water

and the like, the decision ofthe County Committee and

County Board are manifestly reasonable,

even if the Plote property were not residential.

Reasonable County Board members, like

reasonable legislators, could look at the site and

the proximity to nearby homes and

conclude that

they arejust too close not to have an unreasonable impact.

As Board Member Klasen noted with

regard to

the letters,

“1 can’t see

a housing development with these

letters that

Mr. McArdle gave us from these homeowners

that are saying how

great this

is.

You think

it would be

great if you

wanted to get

out ofthere.”

Tr. 79.

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IV.

The Transfer Station

To The Surrounding Area From Fires, Spills Or Other Operational Accidents

In addition to the problems discussed in Section II above, a significantproblem with the

facility design and plan ofoperations, one created by the very small size of the site, is the fact

that the larger transfer trailers contemplated by the application,

and on which site volume and

truck traffic calculations rely, cannot maneuver around the site without hitting the buildings!

The Village of Gary’s expert, Mr. Nickodem ofEarth Tech, had his staff use a widely accepted

computer model called Auto Turn to

determine whether a 65

foot transfer trailer truck could

make the tight turn down the ramp into the transfer building and

then make the tight uphill turn

coming out.

The Auto Turn program showed it could not.

The truck would hit the building

going in and hit the inside ramp retaining wall coming out.

The program also showed that

transfer trucks coming into the site and turning right as contemplated by the site plan would hit

the site fence on the right side ofthe entrance.

Tr.

45-52,

COO214; Gary Ex.

40, G0O466-

GO0466A.

A copy ofthis exhibit is also

attached as Appendix G to this Brief.

This analysis was

supported by the SWANA manual written by Mr. Lowe’s own expert which also

demonstrated

that the turning radii provided were

at the limit of viability.

The manual also recommended

straight

and level road

segments into and out ofthe transfer station tunnel.

App. Ex.

8, pp.

8-9,

C00238.

The Lowe

site obviously doesn’t have them.’6

Mr. Lowe’s expert, Mr. Gordon, responded to this problem not by checking

Mr.

Nickodem’s work, which is therefore unchallenged.

Tr.

16-17,

19-20, C0O223

)7

Instead,

16

Mr. Nickodem’s office also ran Auto Turn to see whether the transfer trailers could really be parked on the

site

and brought into

use as needed as assumed by

the application.

It concluded that

only six could be parked

(instead

of 8

or even

10 as testified by

Mr. Lowe’s consultants, Tr. 36,

COO 182,

and that there would be difficulty

moving them

around the site unless

a smaller yardjockey were used and there were places to unhitch and recouple

on

such

a

small site.

Mr. Nickodem also

identified

numerous other onsitetruck management problems.

Tr.

52-56,

C00214; Cary Ex. 41, C0O467 & C0O467A; Tr. 28-34, C0O214.

17

See Tr. 6 1-62, CO0227, regarding the lack of logic in

Mr.

Gordon’s response.

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Mr.

Gordon said he had used a handheld template to design the site, which was less conservative

than Auto Turn, and that in any event the site could use smaller transfertrailers which would be

able to turn.

Ifthe site uses smaller trailers, however, the assumptions which were used

throughout the application and the Applicant’s testimony to calculate site capacity and traffic

volume are no longer supported.

See e.g. Vol. I,

5-7,

C00001; Tr.

24, CO0179; Tr.

19, 26,

C00223.

Mr. Gordon’s backtracking is inconsistent with the application and two weeks of

testimony.

Mr. Nickodem testified that it is standard practice to design for WB62s

—

65

foot

combinations, and indeed this is the only practice that makes sense. Tr.

32,

COO223.

The turning radius debacle is only one ofthe more stunning problems posed by the very

small site area.

Besides the lack ofadequate buffer, and the deficient stormwater management

discussed above, others include the serious compromises made in site safety in thecase offires

and

spills.

The lack of storage for contact waters and the lack ofa detention pond to provide

water may or may not have influenced the decision, but the record shows that the site will have

neither a sprinkler system nor water capacity to fight fires.

Transfer stations do have fires, Tr.

75,

G0O179; indeed Andy Nickodem testified on behalfof Gary that he had recently designed a

replacementtransfer station for one

which had burned down in Peshtigo, Wisconsin.

Tr.

13,

COO2 16.

His current practice is always to

include sprinkler systems and other firefighting

equipment.

Instead, Mr.

Lowe plans to resort to a pit in which to

push burning wastes.

Fires for

which the pit can’t be used, for example because the volume of burning material can’t be

managed with a front end

loader, will simply burn until the Fire Department arrives and even

then, because there is no onsite detention pond to furnish water, the Fire Department will have to

pump or truck

its water from a hydrant at Three Oaks Road and U.S.

14, Tr.

79, COOI79, further

away even than Bright Oaks.

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Similarly, management ofspills is left unaddressed.

Mr. Gordon, an

expert for

Mr.

Lowe, initially ignored the fact that spills from operations other than fueling could occur.

Tr. 61,

GO0179.

When confronted with his own written or edited manual referring to such spills,

he pretended it referred to

“leaks” rather than “spills,” as if that makes a difference, even though

it uses the term “spills.”

Tr.

7-14, GOO18O; App. Ex.

10,

p.

35,

G00240.

Whatever term

Mr. Gordon prefers, it is clear both spills and

leaks will occur.

They will flow into the

stormdrains to the infiltration system and then to the groundwater, without any mechanism to

halt that flow.

The application has no discussion regarding any spill other than on the tipping

floor where it will be inside, Vol.

I,

§

5,

Att.

1, p. 5, G0000I)8

Ratherthan minimizing damage

from spills, the Applicant

assumes there won’t be

any

—

a clear failure to respond to Criterion

~)9

•For the reasons discussed in

this Section IV, as well as in Section II above, it is clear that the

County

decision on criterion 5

is

supported by the record.

V.

Marshall Lowe Has Neitherthe Experience,

Nor the Environmental Compliance

Record

Necessary

to Run

Ruling on Criteria 2

and 5

Section 39.2 ofthe Act specifically provides that

the County Board may consider as

evidence the previous operating history and past record ofconvictions

or admissions of

violations ofthe Applicant (and any

subsidiary or parent corporation) in the field ofsolid waste

18

The application also

doesn’t even provide the correct information for required

immediate notification of

releases.

Compare Vol.

1,

§

5, Au.

1,

p.

9, C0000I, and 40

CFR 302.6,

(notifications are required by

law to U.S.

Coast Guard’s National Response

Center).

Indeed, neither Mr. Lowe’s consultants nor Mr. Lowe were aware of the

correct notification requirements.

Tr.

15,

COOl80; Tr. 18-19, COO2O I.

19

The hearingalso

included

an

ongoing, and evolving, series of interpretations from Mr.Lowe’s consultant

about

what would be

done

if hazardous waste was found.

Mr. Gordon initially insisted that suspected hazardous

wastes could be taken offsite immediately.

Response

people would be hired to take such wastes “home with them.”

Tr. 30, COI8O.

After a series of corrections, see e.g. Tr. 24 (C00215),

it was clear this was incorrect.

Suspected

hazardous waste cannot be taken offsite without toxicity testing which may take days.

See C04057-7235,

App. No.

14.

This

is also

what the law

says

and

is what other transfer sites have to do as well.

40 CFR 262.11

et. seq.

See

Tr. 24-27, C00215.

Mr. Lowe’s

lack of experience, and his experts’

apparent lack of actual operating experience,

were evident throughout the

proceedings.

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management when considering criteria (ii) and (v).

The County’s vote specified that it had taken

Mr. Lowe’s experience into account in ruling on criteria 2 and 5.

While Mr.

Lowe appeals on the basis

ofthe County’s consideration of experience with

regard to

criteria 2 and

5, it is not clear what his reasoning is, and the PCB hearing provided no

further elaboration except a comment by Mr. McArdle that the law does not say that no

experience is disqualifying.

PCB Tr. 48~50.20What the law does say, ofcourse,

is that

experience can be considered, and

where the site is located near sensitive uses, threatens

vulnerable ground and surface

waters, is so small as to have no buffer area or operational room,

and is designed without protective systems such as sprinkler systems

or firefighting water, it is

entirely reasonable, and consistent with the evidence, to consider lack ofexperience an element

in judging compliance with criteria 2 and

5.

Notably, Mr. Lowe has changed his mind on this

point.

At the County hearing, in refusing to provide further information on Mr. Lowe’s activities

to the County, Mr. Lowe’s attorney agreed that Mr. Lowe’s past operations “goes

to his ability

to run a transfer station”

and could be argued by the parties and considered by the County.

Tr.

18, 1-3-14-03, GOO22I.

Mr.

Lowe has waived his right to argue that his experience couldn’t

be considered.

So what is known about Mr. Lowe’s experience?

First, responding to a question from

Board Member Koehler, Mr. Lowe admitted he didn’t even read his own application.

Tr. 48,

C00203.

He also admitted that he has no experience

in solid

waste management or in

running a

20

If

Mr. Lowe’s argument

is that

actual experience

may

be disqualifying but that total ignorance

is protected,

he

has not provided

any support for that

proposition,

which

is

contrary to the

entire protective

plan of Section

39.2.

Under that theory the

large waste companies should try to find the least experienced people they know to front for

them

on their applications.

No experienced waste company, however, would propose a site so small it can’t turn

its

trucks

or a monitoring well

system without an ungradient or a deep well.

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transfer station.

Tr.

19-20, COO200.2’

Mr. Lowe admitted he had “no clue” who would be the

operator of the transfer station.

Tr.

59, C002O2.

He plans to

own the

site:

operations are to be

carried out by his wholly owned shell corporation Lowe Transfer, Inc. (“Transfer”).

Tr.

50,

C0O202.

Transfer has no experience, no employees, no

money.

Tr. 27,

5 1-52,

COO2O1.

It is set

up to shield Lowe from liability if anything goes wrong.

Mr. Lowe and his attorney admitted as

much at hearing.

Tr.

50-5

1, 54, CO0202.

Arguing that a transfer station

is just

a trucking terminal, PCB Tr. 22-33, though

obviously without the putrescible odor causing materials, Mr. Lowe himself brought up his

current business operations as an example of his background.

Next door to his proposed site he

has operated a construction

and demolition debris recycling business called Lowe

Enterprises

(“Enterprises”) since

1991.

He also runs

Lowe Excavating (“Excavating”) from a separate

location.

Tiker Trucking is owned by

Mr. Lowe and his family and is also run from a separate

location.

Tn

8-9, 75-76, C00200.

It is expected that Tiker will do the hauling to

the landfills.

Tr.

5,

COO2OI.

At Lowe Enterprises Mr. Lowe takes in construction and

demolition materials,

including asphalt from roads and other materials from building projects, separates them, crushes

them, stores them and then sells some portions and disposes ofthe residuals which he collects in

a rolloff and

agrees are wastes.

See e.g. Tr. 30-33. 40-41,

COO200.

Section

2 1(d) ofthe Act,

ILCS 5/21(d)

requires a permit for the conduct of “any waste-storage, waste-treatment or waste-

disposal operation.”

Lowe does not have such a permit.

Lowe eventually decided, at or afterthe

County hearing, that he does not fall under this provision because his

construction and

demolition debris is not waste.

In fact, he separately admitted it included residuals which are

waste

and are disposed

of,

so this argument is unavailing, but it is likely legally incorrect as well

21

Mr. Lowe was

scheduled to testify

in his own case

onlyafter the Village

of

Cary

noticed

him

to appear

and

indicated

it would call Mr. Lowe as a witness in its

case

for the

objectors.

C03833-3834.

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since there is a separate

exception in the statute for construction and demolition debris sites in

counties over 700,000, an exception which would be unnecessary if the construction and

demolition debris

is not covered by the permitting requirement.

It is clear Lowe had never

considered the relevance ofthe solid waste management requirements ofthe Act to his own

operations until this proceeding.

And what Lowe still fails to

acknowledge is that even if he

were not subject to the permit requirement of21(d) he

would still be subject to the operating

requirements of Sections 2 1(w) and 22.38.

He clearly is not in compliance with these

requirements.22

Section 21(w) requires a construction and demolition debris operator to

maintain

documentation identifying the hauler, generator, place oforigin

and weight or volume ofthe

debris or soil and

the place where it is disposed of or treated.

Mr. Lowe is not following these

requirements.

He maintains no documentation; indeed he even allows dumping ofmaterials at

his site after hours when it is entirely unattended, and has had consequent fly dumping problems.

See e.g. Tr. 30-36, 44, 47-57, CO200.

Section 22.38 applies to facilities accepting exclusively general construction

and

demolition debris fortransfer, storage and treatment and

sets out a precise set of operating

standards for such a facility.

In order to be eligible for the permit exemption in

Section

2 1(d) for

facilities in large counties, one

must comply

with Section 22.38, making clear that it is the

22

Other questions regarding Mr. Lowe’s operations were raised as well, e.g. his

servicing of

vehicles from his

operations at

one site and taking the wastes to another for burning, without manifests or permits, see e.g. Tr. 7-11,

14-16, COO2OI; Tr. 76-77, C00200.

Objectors moved that the

County require

Lowe to provide additional

information to allow

a compliance review of these activities, see CO3837-3838, but Lowe’s attorney refused.

See

Tr. 16, C00221.

Instead Lowe hired yet anotherlawyer to provide a “public comment,” after the record closed,

claiming that

certain of Lowe’s operations were in compliance, notably the burning of used oil for fuel,

and noting

that there were no

IEPA

forms for a Section 2 1(d) permit.

Of course, this statement was not subject to cross-

examination, and it certainly is not evidence of Lowe’s compliance

where the underlying

facts are

in the

possession

of Mr. Lowe and

are

not provided.

Most tellingly, there was

~

Loweresponse to the

allegations

that he is in

violation of Sections 2 1(w) and 22.38.

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intention ofthe Act that all construction and

demolition debris recycling facilities be regulated.

Among other things under Section 22.38, at Enterprises, Mr. Lowe must follow certain

procedures to ship recycled materials offsite within six months, to dispose of non-recyclables

within 72 hours, to take no more than 25

non-recyclables, to

control noise and stormwater

runoff, to control site access, and to keep certain records of his waste sources and material

handling and do

certain labeling and

tagging to show compliance.

Again, he has done none of

these things.

Tr.

30-36, 44-57, C00200.

Mr.

Lowe and Mr. McArdle reacted to questions concerning these issues defensively.

Lowe claimed that he would do them if necessary and that an IEPA air inspector, who he could

not name except that it might

be

“Terry something,” had not mentioned these land pollution

violations.

He also could not remember when or how often Terry had visited.

Tr. 41, 69-70,

CO200.

Lowe and his attorney also

questioned where the requirement for a permit and for

compliance with operating standards appears, apparently unfamiliar with the Environmental

Protection

Act or the possibility that it might apply to Mr. Lowe.

Later in the hearing, and

presumably after reading the statute,

Mr. McArdle said that if Mr. Lowe needed a permit for

Enterprises he would get one.

Tr.

17-18,

GOO221.

In fact, the principles underlying the

Environmental Protection Act assume that persons causing pollution impacts must understand

their legal obligations and comply in advance

—

not just when they get caught.

The County

Board was entitled

to consider Mr.

Lowe’s lack of concern for identifying

and following the

applicable environmental laws and regulations.

Mr. Lowe and his consultants testified that he would buy expertise by

hiring a so-called

“certified operator” with the help of his consultants.

This is not

sufficient.

As noted in several

areas above, his consultants’ own testimony indicates important areas ofoperation where they are

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uninformed.

But more important, the application makes no reference to hiring of a certified

operator, See Tr.

17,

COO 180, and the statute does not contemplate a promise to

obtain expertise

in the future.23

Even if a promise to hire expertise could make up for the lack ofexperience, the evidence

at hearing raised serious doubts about that solution in this case.

Throughout the testimony of

Mr. Lowe’s consultants they proved themselves willing again and

again to make

commitments/recommendations to satisfy the many questions raised about the site (e.g. use ofa

certified operator, possibility ofrecycling, litter pickup in surrounding areas, receipt ofhigh level

ofconstruction and demolition debris,

bonds and etc.).

These commitments were not

in the

application

and should not be considered in ruling on site suitability, but the important point here

is that Mr.

Lowe had already begun to disavow them even before the hearing was concluded.

See

e.g. Tr.

19-20, GOO2O1; Tr.

36,

GOO2OI; Tr. 64-67, COO2OI;

Tr. 64,

GOO2O2; Tr.

6-7,

COO2O2; Tr.

16, GOO2O4. These repudiations forcefully demonstrated the practical and

legal

impossibility of approving a transfer station to be run by an unqualified operator on the

assumption that he will hire good people to

do the job.

After acknowledging the burden posed by his transfer station, Mr. Lowe was asked if he

had given

any consideration to the impacts to the Village ofCary.

Mr. Lowe’s answer was firm.

Q.

Have you given any consideration to the

costs to Gary of

having this on its

border?

A.

No.

Q.

Do you

feel any obligation

--

•

A.

Not in the least.

23

Mr. Lowe’s consultant, Mr. Gordon, testified

that

a certified operator, an idea which has no official standing

in Illinois

but which

Mr. Gordon is promoting,

must have a high school

degree or a G.E.D., some transfer station

experience and havetaken Mr. Gordon’s three day transfer station course

(even though he frequently rejected

attemptsto rely on

the manual for that course).

Tr. 93, C00184.

Clearly these very minimal requirements

insure

nothing.

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Q.

--

to consider that?

A.

Not in the least.

Q.

Why?

A.

Gary and

I don’t get along.

Let’s get

something straight

right now.

Gary and I don’t get along at all, period.

So if

you want to go there, go ahead and go there, but it isn’t

--

I

wouldn’t.

Mr. McArdle:

Do you need that clarified?

Ms. Angelo:

No thanks, it’s pretty clear.

By Ms. Angelo:

Q.

Do you consider any

obligation to consider the costs to

--

do you feel you have any obligation to consider the costs to

yourneighbors such as Bright Oaks to have that near them?

A.

No, I have not because

--

you know,

no, I haven’t.

Tr. 46-47, GOO2O1.

He emphasized his unwillingness to be

responsible for damages to neighbors.

Tr.

56-57,

GO0202.

In fact, Mr. Lowe was stunningly blunt:

Q.

Do you believe that the risk associated with

your facility on

the surrounding home values to your neighbors should be

borne by yourneighbors, not by you?

A.

Yes.

Tr.

58,

GOO2O2.

Mr.

Lowe believes the McHenry County Conservation District,

the residents in

Bright

Oaks, the Village ofGary, the Plote family

and the citizens ofMcHenry County should take the

risk of impacts from his transfer station and he

has set up Lowe Transfer as a corporate shell to

make sure that happens.

Mr. Lowe couldn’t be

bothered to read his own application,

but he plans

to be

legally and financially offthe hook when something goes wrong.

This is the last person

who ought to be running a solid waste transfer station.

The County’s

consideration ofMr.

Lowe’s experience, or lack thereof, was entirely proper and

consistent with the manifest weight

ofthe

evidence.

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VI.

Conclusion

The record in this case runs to 4000 pages, representing eleven long (often

10+ hour)

hearing days and multiple experts presented by objectors, as well as the experts presented by

Mr. Lowe.

The County Committee participated actively, not only in their attendance and

analysis of the documents but in their own questioning ofwitnesses, which was both observant

and informed.

While objectors presented a powerful

case, the Board members themselves were

active in asking the tough questions about the Lowe

application.

See Attachment

1, Item 4.

Based on its careful

analysis, the Committee

and then the Board rejected the application on

criteria 2,

3 and

5.

Their decision was strongly supported, and in fact, inescapable, as discussed

above.

Mr.

Lowe and his attorney,

Mr•. McArdle, have suggested that the County succumbed to

public pressure.24

Inconsistently, at the same time, Mr.. McArdle noted that the 81

people who

gave testimony before the County Committee represented less than

1/2

of 1

ofthe County

population.

After the first three days, all ofthe hearings were held in Woodstock, a good one-half

hour drive or more from

Gary.

Despite this distance many citizens attended multiple hearing

days.

The factthat

81

commenters testified, many ofwhom may have been afraid to speak at

first,

(as one mentioned at the PCB hearing, PCB

Tr.

104), is a substantial

comment on the level

of concern regarding this site and the numbers who will be affected.

Many others signed

24

Mr. Lowe and his attorney have sought to discredit and marginalize the

citizen participants,

suggesting they

improperly

influenced the decision and objecting to commenters as outsidethe record before they could even begin

to speak,

PCB Tr. 54,

65, 75.

Mr. Lowe filed motions in limine to prevent and

limit public participation before

the

County hearing, CO0173, and before the

PCB hearing.

Mr. Lowe also attacks the motives of objectors, complaining,

for example, that Cary resolved to oppose the transfer station before hiring its experts.

In fact, the objectors and

other citizens have been entirely professional and responsible,

hiring their own

experts, providing valuable and

pertinent testimony

and asking very thoughtful questions.

This proceeding was

a model ofpublic participation.

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petitions and

wrote letters.

It was announced that

161

people attended the PCB hearing,

in the

morning of a weekday.

At the same time, the suggestion that the objectors improperly influenced the County

Board or Committee is ludicrous.

As one ofthe citizens noted, County Board members are

elected from districts, not

county wide.

Only two

members, and only one

on the Committee,

represent the

Gary area.

Board Member Kiasen who so forcefully pointed

out the devastating

impact ofa transfer station on the Hollows and Princeton Village explained in the hearing that he

represents an area on the west end ofthe County.

Mr. Lowe has explicitly announced that he is

not making

a fundamental fairness attack on the County proceedings and his oblique attack on

the participating citizens and County Board members is simply improper.

In fact, it is clear that

the

Committee and the Board were persuaded by

overwhelming evidence that this site was not

adequately protective and was wrongly located.

The citizens and other objectors assembled

expert testimony, presented their evidence, and the system contemplated

by Section 39.2 for

making

siting an objective local process worked.

The County decision should be

affirmed by the

Board.

Respectfully Submitted,

The Village ofCary

Dated:

August 27, 2003

By’~~

/

.

One oit its Attorneys/

Percy

L. Angelo

Patricia F. Sharkey

Kevin G. Desharnais

Mayer,

Brown, Rowe & Maw, LLP

190

5. LaSalle Street

Chicago, IL 60603-3441

(312) 782-0600

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ATTACHMENT I

The following matters are, in part, discussed in the record at the locations indicated:

1)

Qualifications of experts presented by the objectors:

Tr. 6-12, GO188; Gary Ex.

I, C003l6-

325

(Lawrence Thomas of Baxter & Woodman);

Tr. 63-66, COO218; Gary Ex. 44,

COO475

(Kevin

Sutherland ofBaxter & Woodman); Tr.

3-6,

17-18, GOO2I4, Gary Ex.

36, C00458-462 (Andrew

Nickodem ofEarth Tech); Tr.

57-60,

GOO2O7; Gary Ex. 28,

GOO423-425 (Drew Petterson ofThompson,

Dyke &

Associates); Tr.

24-26, GOO22O, Bright Oaks Ex. 2,

CO1283-85 (John Whitney, MAT).

2)

Testimony with regard to the deeper groundwater under the Tiskilwa Till:

Tr.

85,

COOl

85;

Tr. 22-23, COOl 89; Gary Ex. 2; GOO326;

Gary Ex. 49-52, C0O770-773, G00774-776,

C0O777-778,

CO0779-78l;

Tr.

30,

COO224; Tr.

75-77, COO199, Tr. 33,

C00024.

3)

Comparison ofLowe design with standards

applied by Mr. Andrew Nickodem

in station

design at Woodland and other locations:

Tr.

17-18, COO2I4; Tr. 30,

COO218

(Woodland had only one

residence

1400 feet to the west compared to 422 unit Bright Oaks

1346 feet to the east); Tr.

18-19,

25-

26, 46, 50-54, GO0217; Tr.

16-17, C00218; Lowe Br.

15 (Woodland paved with curbing,

walls, multiple

valved catch basins and detention pond to isolate

spills and leaks.

Lowe has gravel areas,

no curbing

and

“vegetative waterways.”); Tr.

9-10, COO 126; Tr. 29-30, C002 18 (Woodland has sprinkler system,

200 lb. wheeled water fire extinguisher and

detention pond (in addition to sand and hand-held

extinguishers which both sites have) while Lowe has a burn pit); Tr.

21,

COO2 18 (Woodland has

groundwater monitoring system associated with Woodland landfill.

Lowe has two

shallow

downgradient wells); Tr.

25.~26,C002 14 (In recent designs Nickodem has provided tollway type noise.

•

visual and litter barrier walls);

Tr. 27-28, C00214 (Nickodern’s

recent Chicago area projects were

between

5

and 6,

8 and 20 acres vs.

2.64 acres at Lowe site);

Tr. 22-27, G00218 (Woodland system for

load inspections,

including surveillance cameras vs. Lowe random load checking in

minimum sp~cej;

Tr.

18-19, C0O218; Brief~IV (insufficient room for onsite traffic movement at Lowe).

See also

Fr.

32-

33, 42-43, GO0216 (little or no advantage to indoor scales, and or scales and radiation detector);

Tr.

20-

27,

COO2I 7 (indoor tarping and underground

loading present dangers at Lowe site).

4)

The Committee members participated in every hearing and asked questions ofevery witness.

For example:

Committee Chair and Board Member Brewer:

Tr.

65,

COOl 86 (protective barriers under site as a

whole); Tr.

96,

COO 195

(concerns regarding whether Lowe experts assumed site would be

a

first

class operation).

Board Member Kate:

Tr.

80-81, G00220 (concerns regarding effects on Bright Oaks).

Board Member Klasen:

Tr.

79-80, CO0220 (concerns regarding conclusions of Princeton Village

data): Tr.

16-17, C00218

(shouldn’t paving be an

industry standard for transfer stations);

Tr.

15,

G07237 (concerns regarding effects on the Hollows conservation area).

Board Member Koehlei:

Tr.

16, COOI87 (lack of data on odor and noise);

Tr. 69-74, C00194

(concerns regarding conclusions ofPrinceton Village data);

Tr. 48,

COO2O3

(concerns regarding

whether Mr. Lowe read his application).

Board Member Munaretto:

Tr.

83-84,

COO 195 (concerns regarding whether Lowe experts

assumed site would be a first class operation).

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