ILLINOIS POLLUTION CONTROL BOARD
    August 4, 1988
    WASTE MANAGEMENT OF ILLINOIS,
    )
    INC., a Delaware corporation,
    )
    Petitioner,
    v
    )
    PCB 88—39
    MCHENRY COUNTY
    BOARD,
    )
    Respondent.
    DONALD J. MORAN (PEDERSON AND HOUPT, P.C.) APPEARED ON BEHALF OF
    PETITIONER;
    DAVID R. AKEMANN APPEARED ON BEHALF OF RESPONDENT;
    HOWARD A. LEARNER AND ROBERT L. JONES, JR. APPEARED ON BEHALF OF
    AMICUS CURIAE MCHENRY COUNTY DEFENDERS; AND
    THOMAS F. BAKER, STATE’S ATTORNEY
    AND
    PAUL R. RYSKE, ASSISTANT
    STATE’S ATTORNEY, APPEARED ON BEHALF OF AMICUS CURIAE PEOPLE OF
    MCHENRY COUNTY.
    OPINION AND ORDER OF THE BOARD (by 3. Anderson):
    PROCEDURAL HISTORY
    This action is an appeal filed February 25, 1987 pursuant to
    Section 40.1 of the Environmental Protection Act (Act), Ill. Rev.
    Stat. ch. 11. 1/2, par. 1040.1.1 Waste Management of Illinois,
    Inc. (WMII) contests the February 24, 1988 decision of the
    McHenry County Board (County) denying site location suitability
    approval for a regional pollution control facility proposed by
    WMII.
    The bases for the denial were WMII’s failure to satisfy the
    requirements of criteria 2 and 3 of Section 39.2(a) of the Act.
    This case involves WMII’s second application, filed August 31,
    1987 (1987 application) to the County for approval pursuant to
    Section 39.2 of the Act (also known as SB172) of the same
    proposed facility, a landfill proposed to accept non—hazardous
    waste. The proposed site is an irregularly shaped 118 acre tract
    of land located in Seneca Township, some 65 acres of which would
    be actic.rely used for landfilling. The site is bounded to the
    north by Route 176, to the west by McCue Road, and to the south
    by Pleasant valley Road. The Kishwaukee River flows to the south
    and west of the site; the southwesternmost corner of the site is
    91—87
    —2—
    within about 300 feet of the river, and the northwesternmost
    corner is within about 1000 feet of the river.
    The prior application (1986 application) was denied by the
    County on the same grounds given for the denial in this case:
    that WMII had failed to satisfy criteria 2 and 3 of Section
    39.2(a) i.e. that “the facility is so designed, located and
    proposed to be operated that the public health, safety and
    welfare will be protected” and that “the facility is located as
    to minimize incompatibility with the character of the surrounding
    area and to minimize the effect on the value of the surrounding
    property”. Upon review of the 1986 application, in Waste
    Management v. McHenry County Board, PCB 86—109, December 5, 1986,
    this Board affirmed the County decision as to criterion 2, and
    reversed the County decision as to criterion 3. Subsequent
    review of this Board’s and the County’s decisions was made by the
    Appellate Court for the Second District under the case name Waste
    Management of Illinois, Inc. v. Pollution Control Board, 160 Ill.
    App. 3d 434, 513 N.E.2d 592 (2nd Dist. 1987) (hereinafter WMII v.
    PCB). The court sustained this Board’s and the County’s findings
    that criterion 2 had not been satisfied, but did not address the
    merits on the issues raised concerning criterion 3.
    As will be discussed in more detail later, in its 1987
    application and presentation to the County, WMII focussed its
    attention on responding to the objections raised concerning the
    1986 application. The 1987 application remained unchanged as to
    criterion 3, but incorporated 1) supplemental geologic and
    hydrogeologic data to improve characterization of the site, and
    2) some changes and additions to the design of the site.
    In deliberating the merits of the 1987 application, the
    County took quasi—judicial/administrative notice of the entire
    record in PCB 86—109, which consists of 3,990 pages of hearing
    transcript, 131 exhibits, and numerous written comments from the
    public. Additionally, 12 days of hearings were held concerning
    the 1987 application by hearing officers before the Regional
    Pollution Control Facility (RPCF) Committee of the County
    Board. These hearings, which commenced on November 30, 1987 and
    ended with an oral public comment session on January 9, 1988,
    generated 2,284 pages of transcript, over 50 exhibits, and 50
    written comments. Major participants at the County’s hearings
    included the McHenry County State’s Attorney, acting on behalf of
    the People of McHenry County (People), the Concerned Citizens of
    McHenry County (Citizens), and the McHenry County Defenders
    9 1—88
    —3—
    (Defenders). Following the close of the County’s record,* the
    RPCF Committee prepared a document containing proposed findings
    and order, which the County adopted by ordinance on a vote of 21—
    0, with 1 member abstaining and 1 member absent. The ordinance
    does not detail the facts or reasons upon which the County based
    its decision that criteria 2 and 3 had not been satisfied. (RA
    23).
    As aforementioned, WMII filed its appeal of the County’s
    decision with this Board on February 27, 1988. On March 11,
    1988, the Defenders filed a petition seeking to cross—appeal the
    County’s decision that criterion 1 had been satisfied, i.e. “that
    the facility is necessary to accommodate the waste needs of the
    area intended to be served”. The Board dismissed the cross—
    appeal by Order of March 24, 1988, based on the decision of the
    Second District Appellate Court in McHenry County Landfill v.
    IPCB, 154 Ill. App. 3d 89, 506 N.E. 2d 372 (2nd Dist. 1987),
    which held that Section 40.1 of the Act does not allow for cross—
    appeals by objectors. In the same Order, however, the Board gave
    the Defenders leave to file an amicus curiae brief solely with
    respect to criteria 2 and 3. (By Order of April 7, 1988, the
    Board granted similar leave to the People.) On April 6, 1988,
    the Defenders moved the Board to certify its March 24 Order
    dismissing the cross—appeal for immediate interlocutory appeal
    pursuant to Supreme Court Rule (SCR) 308(a). This motion was
    denied by Order of April 21, 1988, based upon the findings that
    the tests articulated in SCR 308(a) had not been met.
    The Board conducted a public hearing concerning WMII’s
    appeal on April 22, 1988; no evidence or argument was
    presented. Pursuant to schedule, WMII filed an opening brief May
    13, 1988, the County, the People and the Defenders each filed
    briefs on May 20, 1988, and WMII filed a reply brief on June 3,
    1988.
    FUNDAMENTAL FAIRNESS
    The Board notes that the County, in its resolution, found
    that all jurisdictional requirements had been met. Further, it
    *
    References to the various documents contained in the record on
    appeal in this case will be made as follows. The 1986 County
    hearing transcripts will be designated as “Tr. I”, and the 1987
    transcripts as “Tr. II”. No reference will be made to exhibits
    concerning the 1986 application I. References to exhibits
    presented will be to the person offering the exhibit and its
    number, e.g. “11.0. Ex.
    ____“,
    “App. Ex.
    ____“.
    No reference will
    be made to the transcript of this Board’s hearing. Finally, some
    documents which are not otherwise numbered will be referred to by
    the numbers designated by the County in its March 14, 1988
    Certificate of Record On Appeal as ‘RA
    ____
    91—89
    —4—
    affirmed all rulings of its hearing officers concerning various
    procedural and evidentiary matters. No challenge of these
    rulings has been brought to the Board.
    WMII does however, assert that:
    the County’s decision was rendered as the
    result of a fundamentally unfair decision—
    making process. Despite the adoption of the
    recommendation of the Respondent’s own expert
    witnesses, and the inclusion of design and
    operational features that would arguably make
    this facility the safest of its kind in the
    State of Illinois, the Respondent simply
    stated, without explanation, that criterion 2
    was not met.
    Additionally, in finding that criterion 3 was
    not met, Respondent deliberately ignored both
    this Board’s and the Appellate Court’s
    decisions reversing Respondent on criterion 3,
    which decisions have collateral estoppel
    effect. Clearer evidence of Respondent’s
    predisposition to deny the 1987 Siting
    Request, regardless of the evidence presented,
    is difficult to imagine. (WMII Brief of 5—13—
    88, pp. 6—7)
    The Board will defer consideration of the collateral
    estoppel argument for the moment, as it is most logically
    discussed in the context of the facts which were presented in the
    application, which will be discussed following consideration of
    criterion 2.
    As to the argument concerning the content of the County’s
    Ordinance, the People correctly point out in their brief (p. 17),
    that the Second District Appellate Court, in one of the earliest
    filed and recorded SB172 appeal cases, determined that:
    nothing in the statute would require a
    thorough—going exposition of the County
    Board’s mental processes. Rather, the County
    Board need only indicate which of the
    criteria, in its view, have or have not been
    met, and this will be sufficient if the record
    supports these conclusions so that an adequate
    review of the County Board’s decision may be
    made. E & B Hauling, Inc. v. IPCB, 116 Ill.
    App. 3d 586, 451 N.E. 2d 555,
    ____
    (2nd Dist.
    1983), aff’d. in part, 107 Ill. 2d 32, 481
    N.E. 2d 664 (1985).
    91—90
    —5—
    (This holding was noted by the Board in its Opinion in PCB 86—
    109, pp. 10 & 11, rejecting the same argument about lack of
    articulated reasons.)
    WMII has cited no evidence in the record which overcomes the
    presumption, noted by the Supreme Court in its review of the E &
    E Hauling case, that public officials are presumed to act without
    bias.
    Finally, the People also correctly note that WMII has failed
    to cite any authority in support of its bias/unfairness
    contention as required by SCR 314 (e)(7), and has therefore
    waived the argument. WMII
    V.
    PCB, 160 Ill. App. 3d 434, 443, 513
    N.E. 2d 592, 598 (2nd Dist. 1987).
    The Board accordingly finds that the County’s decision—
    making processes in this matter were not fundamentally unfair;
    the Board will therefore proceed to consider the merits.
    STANDARD OF REVIEW AND SCOPE OF THIS OPINION
    The Board sees little point in recapitulating the testimony
    presented in the 1986 application proceedings concerning criteria
    2 and 3; this testimony is digested at length in the Board’s
    Opinion in PCB 86—109. In the interests of administrative
    economy, the Board hereby incorporates into this Opinion by
    reference as if fully set forth pages 12 through 23 of the PCB
    86—109 Opinion. This Opinion will focus on the new information
    and argument presented concerning these criteria in the 1987
    application proceedings.
    Although the Board’s standard of review in S8172 cases is
    discussed on page 12 of the PCB 86—109 Opinion, it is useful to
    reiterate the principles which must guide the Board in reviewing
    these cases:
    A verdict is
    ...
    against the manifest weight
    of the evidence where it is palpably
    erroneous, wholly unwarranted, clearly the
    result of passion or prejudice, or appears to
    be arbitrary, unreasonable, and not based upon
    the evidence. A verdict cannot be set aside
    merely because the jury (County Board could
    have drawn different inferences and
    conclusions from conflicting testimony or
    because a reviewing court IPCB would have
    reached a different conclusion
    ..
    When
    considering whether a verdict was contrary to
    the manifest weight of the evidence, a
    reviewing court IPCB) must view the evidence
    in the light most favorable to the appellee.
    91—91
    —6—
    Steinberg v. Petra, 139 Ill. App. 3d 503, 508
    (1986). (citations omitted)
    Consequently, if after reviewing the record, this Board
    finds that the County
    Board could have reasonably reached its
    conclusion, the County Board’s decision must be affirmed. That a
    different conclusion might also be reasonable is insufficient;
    the opposite conclusion must be evident. (See Willowbrook Motel
    v. IPCB, 135 Ill. App. 3d 343, 481
    N.E.2d 1032 (1st Dist. 1985)).
    The Board finds it necessary to note the restrictions which
    this
    deferential evidentiary standard place on the Board’s
    judgment in these cases in light of the discussion at hearing
    about the Board’s decision in PCB 86—109. One of WMII’s
    witnesses noted that his task was to attempt to provide data “to
    answer the apparent questions that existed in the minds of
    Pollution Control Board Members...and to satisfy Board
    Member’s reservations”. (Tr. I 611).
    The Board’s decisions in
    these cases should not
    necessarily be construed as indicative of
    the opinion the Board would render
    if reviewing records in these
    cases as the trier of fact: it is not the role of the Board to
    utilize its technical expertise to determine what result a local
    government should have reached; rather, the Board is required to
    determine what result a local government reasonably could have
    reached based on the evidence before it.
    1987 ADDITIONS TO AND CHANGES IN THE 1986 APPLICATION
    Site Characterization
    The record concerning the 1986 application contained
    considerable
    dispute concerning the sufficiency of WMII’s
    investigation of subsurface conditions at the site. It does not
    however, appear to be disputed that the generalized soil profile
    of the site indicates that a 1.0 to 3.8 feet layer of topsoil is
    underlain by layers of saturated sand,
    silt and silty clay with a
    yellow to
    brown color known as
    the Gilberts Till, belonging to
    the Maiden Member of the Wedron Formation. The Gilberts Till is
    underlain at a depth of 5 to 17 feet by a layer of pinkish to
    reddish—gray silty clay—clayey silt. This is the Marengo Till of
    the Tiskilwa Member of the Wedron Formation; this has been
    commonly referred to in these proceedings as the Tiskilwa Till.
    The Tiskilwa Till, which is on the order of 40 to 50 feet thick,
    is underlain by a basal outwash, a layer of saturated silty sand
    to well graded sand and gravel varying between 8 and 27
    feet
    thick. This zone is saturated. The outwash layer is underlain
    by older Illinoian Till believed to be the Esmond Till, which is
    underlain by bedrock at elevations 737 to 731, and argillaceous
    (clayey) dolomite belonging to the Maquoketa Formation.
    Free groundwater has been observed in sand layers in the
    Gilberts Till, the basal outwash layer, and within the Illinoisan
    91—92
    —7—
    Till. The basal outwash layer appears to be hydraulically
    connected to saturated outwash filling Kishwaukee River branch
    valleys to the north, south and west of the site. Additional
    aquifers exist below the bedrock. (11.0. Ex. 2, Vol. 1, pp. Vl—l
    —
    Vi—lO).
    In the 1986 hearings, various objectors expressed concerns
    about the sufficiency of data concerning the permeability and
    homogeneity of the Tiskilwa Till. (e.g. Tr. I at 1939, 2341,
    3406—07). Concerns were also expressed about the lack of borings
    within the footprint of the landfill (i.e. the area to be
    occupied by the fill) (e.g. Tr. I 1838—39, 3232, 3454), and the
    fact that the direction of groundwater flow had not been
    sufficiently demonstrated. (e.g. Tr. I 2413—16).
    The results of additional geological and groundwater data
    collected by Patrick Engineering were presented in the 1987
    application and were discussed at hearing by Mr. Daniel
    Dietzler. Additional work at the site included:
    1. Making eleven continuously sampled borings within the
    landfill footprint to at least 30 feet below the planned refuse
    depth. Tr. I at 617. The exploration program was submitted to
    and reviewed by GAS, the consultants to the County, prior to
    start—up. GAS sent a representative to the file to observe
    sampling operations. Tr. II at 618.
    2. Field hydraulic conductivity tests were performed as
    recommended by Dr. Pratap Singh, a witness for the County in
    1986. Tr. II at 622.
    3. Electrical resistivity surveying was performed, also as
    recommended by Dr. Singh. Citizens Ex 9.
    4. Additional piezometers were constructed and monitored to
    measure the potentiometric level, and to check or refute the
    direction of groundwater flow in the underlying basal sand
    aquifer that was previously reported. Tr. II at 627—31.
    Design and Operations
    As to design, in 1986 Dr. Singh, Mr. Gerald De Mers and Mr.
    Robert Layer, who all appeared on behalf of the County, made
    various design recommendations. The 1987 application
    incorporates design changes responsive to some, but not all of
    these recommendations. As opposed to the in situ liner of 30
    feet of undisturbed Tiskilwa Till proposed in 1986, the 1987
    application proposes a 60 mil high density polyethylene (HDPE)
    liner in addition to a 3 foot recompacted liner recommended in
    1986, which will be underlain by undisturbed Tiskilwa Till. Also
    as recommended in 1986, the 1987 design proposes to increase the
    slope of the landfill bottom from 1 to 2, to decrease the
    9 1—93
    —8—
    spacing between leachate collection pipes to 150 feet, and to
    provide a gas collection system. The amount of final cover has
    been increased to consist of at least 3 feet of clay and 3 feet
    of random soil, or in the alternative, a 40 mu HDPE cover if
    needed. Post closure care estimates have been increased to
    reflect a 20 year post—closure care monitoring period.
    WMII has not, however, changed the basic inward gradient
    design of the landfill, or changed its plans to insure that a
    maximum leachate level of one foot over the bottom liner is
    continuously maintained as recommended in 1986 by Mr. De Mers.
    It has not revised its stormwater management program as
    recommended by Mr. Layer in 1986.
    Minimization of Impact On Surrounding Property
    The 1987 application contained no changes from the 1986
    application as it related to setbacks, screening, berming, etc.
    THE WITNESSES PRESENTED
    Prior to discussing each criteria, a listing of the
    witnesses presented by the major participants concerning criteria
    2 & 3, and a brief summary of their qualifications, and a very
    brief overview of their testimony will be presented. Testimony
    will be discussed in more detail as relevant to discussion of
    contested issues. This listing does not include witnesses who
    solely addressed other criteria, and lists witnesses roughly by
    order of appearance.
    WMII Witnesses
    J. Christopher Lannert re Criteria 2 & 3 (Tr. II 256—352).
    Professional landscape architect and land planner for 17
    years. President, Lannert Group, which firm has worked on
    roughly eight Illinois landfill projects.
    Mr Lannert’s conclusion concerning the 1987 application was
    the same as that he presented in 1986, which is that the site
    satisfies both criteria. (See Opinion, PCB 86—109, p. 14, 19—20;
    Tr. II 264—267; 11.0. Ex. 2).
    John Rohr re Criterion 2 (Tr. II 358—518).
    Civil engineer. Since 1985, Manager of Environmental
    Engineering for WMII; 1982—1985 Manager of Design Engineering for
    Waste Management, Inc. (See App. Ex. 9 for educational experience
    and professional associations.)
    Mr. Rohr prepared the operations plan contained in WMII’s
    1987 application, which, he noted contained only minor revisions
    91—94
    —9—
    to the 1986. His general opinion was that the facility and the
    plan satisfied criterion 2 based on “the pertinent features
    particularly those that relate to the receipt of waste
    -—
    the
    control of waste receipts, the security of the site, the
    provisions made for the control of odor, for litter, dust
    control, for the quality control procedures that are going into
    both the materials and construction of the site, control features
    for methane and for leachate and leachate removal, for the
    application of cover and vegetation, for the groundwater
    monitoring program, and the closure and postclosure plan.” (Tr.
    II 363; 11.0. Ex. 2, Vol.1).
    Thomas M. Collins re Criteria 3 (Tr. II 521—589).
    Real estate appraiser, broker, and consultant since 1954.
    Mr. Collins’ conclusion concerning the 1987 application was
    the same as that he presented in 1986, which is that criterion 3
    has been met based on his experience with other landfill sites,
    evaluation of sales, review of proposed screening and use
    planning, traffic reports and review of the site and surrounding
    properties. (See Opinion, PCB 86—109, pp. 20—21, Tr. II, p. 531,
    11.0. Ex. 1, Vol. 1).
    Daniel P. Dietzler, P. E. re Criterion 2 (Tr. II 603—852, 2058—
    2150).
    Civil engineer. Founder in 1979 and President of Patrick
    Engineering, Inc., an engineering consulting firm which handles
    projects that require the control of surface and groundwater
    predominantly. (See App. Exh. 13 for educational experience,
    professional associations and publications.)
    As he was in 1986, Mr. Dietzler was WMII’s principal witness
    concerning the site characterization work done and design
    features included in the 1987 application prepared by Patrick
    Engineering. In addition to direct testimony, he presented
    rebuttal testimony addressing various matters of concern to the
    objectors throughout the course of hearing. (See App. Ex. 24).
    Overall, Mr. Dietzler’s conclusions as to site
    characterization are that the few sand seams located in the
    Tiskilwa Till are discontinuous and that the Tiskilwa is free of
    secondary features such as cracks. The Tiskilwa is a clayey soil
    and permeability and plasticity tests indicate that the soil is a
    workable one which will allow for construction of stable sides
    and bottom walls.
    As to site design and operations,, he concludes that the
    HDPE liner is a reliable material based on manufacturer’s
    representations. He does not believe that the leachate system
    will clog. Groundwater monitoring wells will be installed in
    91—95
    —10—
    sufficient number and location to satisfy IEPA permit
    conditions.
    Finally, Mr. Dietzler believes that WMII plans to
    allow for controlled leachate buildup up to within
    four feet oE
    the potentiometric level are sound,
    because the volume generated
    can be minimized,
    the reliability of the pumping system would be
    improved, and the leachate treatment process would be more
    effective.
    States Attorney’s/People’s Witnesses
    Dr. Nolan B. Aughenbaugh re Criteria 2 (Tr. II 877—989).
    Professor of Geological Engineering, Department of Geology
    and Geological Engineering in the School of Engineering at the
    University of Mississippi; registered P. E. in Indiana. Since
    1959, has taught in general areas of geologic or geotechnic
    engineering. (See SA Ex. 1 for educational experience,
    professional associations and publications.)
    Dr. Aughenbaugh, whose work has been concentrated in glacial
    geology and glaciology, concluded that the proposed site is not
    “excellent”, as Mr. Dietzler believes, but “marginal”. He
    further disagrees with Mr. Dietzier’s conclusions about the
    permeability and plasticity of the Tiskilwa Till, and is unsure
    about whether the aquifer in the Gilberts Till is interconnected
    with that in the basal outwash layer. While he is “unimpressed
    by the geology” of the site, he is “impressed” with the design,
    but notes that “a design is only as good as it’s implemented”,
    and suggests that a high degree of construction quality assurance
    would be necessary. (Tr. II 957—961).
    Herbert F. Harrison re Criterion 3 (Tr. II 990—1045).
    Real estate appraiser for 40 years and land use consultant
    for 30 years. Has experience with about eight landfill
    applications. (See SA Ex. 5 for educational experience and
    professional associations.)
    Mr. Harrison’s conclusion about the 1987 application as to
    criterion 3 was the same as that he presented in 1986, that the
    criterion has not been satisfied. Generally, Mr. Harrison
    believes that many more properties will be depreciated than Mr.
    Collins does, and questions the efficacy of WMII’s proposed
    screening and berming. (See Opinion, PCB 86—109, 20—21).
    Gerald De Mers re Criteria 2 and 3 (Tr. II 1673—1754).
    Environmental Engineer, Graef Anhalt Schloemer and
    Associates (GAS) (consulting engineers) for 9 years; registered
    P. E. in Wisconsin. Project experience in the area of solid and
    hazardous waste engineering including preparation of solid waste
    management plans for three counties and work on various aspects
    9 1—96
    —11—
    of 12 landfill sites. (See SA Ex. 6 for educational experience
    and professional associations.)
    At the 1986 hearings, Mr. De Mers criticized several
    features of the site’s then—design. While agreeing that the 1987
    design was generally appropriate for the site, he continues to
    have some concerns about items which include the proposed side
    wall liner slope, placement of a synthetic liner within a
    groundwater table, ability to properly maintain the leachate
    collection system to prevent clogging, the proposed leachate plan
    to allow leachate to accumulate to a depth of greater than 1 foot
    above the liner prior to withdrawal, lack of specificity about
    proposed depth of monitoring wells, and that in some portions of
    the landfill an inward gradient may not be consistently
    maintained.
    Robert W. Layer re Criteria 2 (Tr. II 1756—1778).
    Staff engineer, Mdllenry County Department of Planning.
    Re—adopting the testimony he gave in 1986 (Tr. I 2706—2767,
    Opinion, PCB 86—109, p. 16), in 1987 Mr. Layer again criticized
    Wr.III’s proposed plan for stormwater detention to control
    stormwater runoff, which plan had not changed since 1986. Mr.
    Layer continues to disagree with the methodology used by WMII in
    making its calculations, and questions an assumption made
    concerning flow velocities.
    Dr. Pratap Singh re Criteria 2 (Tr. II 1858—1989).
    Manager, Environmental Focus Group, A.T. Kearney Management
    Consulting; civil engineer, registered P. E. in Wisconsin. Has
    reviewed siting, closure and post-closure design for over 50
    solid and hazardous waste management facilities. (See SA Ex. 9
    for educational experience, professional associations and
    publications.)
    Dr. Singh prepared an environmental assessment report as to
    the proposed facility. (Tr. II 1865—1866; RA 15(1); SA Ex. 10).
    This report concentrated on four points: site suitability,
    design features, waste characteristics and facility operations
    and management. (Tr. II 1867).
    Each of these points was “graded”, based on considerations
    of environmental risk and ability to manage that risk, as
    “acceptable”, “marginal”, “unacceptable”, and “unacceptable” and
    unmanageable”. Waste characteristics were deemed “acceptable,
    design features and facility operations as “marginal”, and site
    suitability as “unacceptable”. More specifically, among other
    things, Dr. Singh criticized WMII’s failure to perform a pumping
    test to determine whether sand lenses were continuous, as well as
    91—97
    —12—
    the failure to provide for leachate withdrawal as he and Mr. De
    Mers had recommended in 1986.
    While overall Dr. Singh would rank the site as being
    “marginally acceptable”, this ranking would depend on a high
    level of construction quality assurance to guarantee that the
    design features are properly implemented and a continuing high
    level of operations and management practices.
    Defenders’ and Citizens’ Joint Witness
    Dr. Kirk W. Brown
    re Criterion 2 (Tr. II 1222—1335).
    Professor of Soil Science, Texas A&M University. President,
    K. W. Brown and Associates, environmental consultant firm
    particularly in the areas of assessing waste disposal options and
    drafting government waste handling regulations. Has performed
    research in the area of waste disposal for USEPA for the past 15
    years. (See Citizens Ex. 3 for educational experience,
    professional associations and publications.)
    Dr. Brown does
    not believe that criterion
    2 will be
    satisfied for a variety of
    reasons.
    He disagrees with Mr.
    Dietzler concerning the permeability and plasticity of the soils,
    and has concerns about the continuity of sand seams. As to the
    design features, he has reservations about the integrity of and
    ability to properly install synthetic liners, recompacted liners,
    and landfill caps. These reservations prompt further ones about
    the quantity of leachate which could be generated, and WMII’s
    plans to discontinue leachate removal (which could result in
    establishment of an outward gradient and contaminant
    transport). He is also concerned about groundwater monitoring
    plans.
    Citizens Witnesses
    Bruce t3. Mack re Criterion 2 (Tr. II 1335—1443).
    Staff hydrogeologist, Baxter and Woodman, Inc.
    (Environmental Engineers). 3 years experience with landfill
    design and test borings; several years of well drilling
    experience. (See Citizens Ex. 4 for educational experience,
    professional associations and publications.)
    The main thrust of Mr. Mack’s testimony is that WMII did not
    adequately or completely describe the geology beneath the site.
    Mr. Mack challenged the characterization of the till, the
    surficial aquifer, and direction of groundwater flow, and
    expressed concern about the sand seams.
    9 1—98
    —13—
    Darryll Bauer, P. E. re Criterion 2 (Tr. II 1449—1514).
    Manager, Solid Waste Management Division, Baxter and
    Woodman, Inc. 24 years of engineering experience, including
    service with the Illinois Sanitary Water Board, the IEPA, and the
    City of St. Charles. (See Citizens Ex. 5 for educational
    experience, professional associations and publications.)
    Mr. Bauer’s testimony was based on review of what he
    characterized as the “engineering plans”. (11.0. Ex. 2, Vol. 6).
    Based on his review concerning various areas, including leachate
    collection system’s cleanout and leachate removal pumps, plans
    for leachate disposal, setback zones, composition and stockpiling
    of cover material and stormwater detention basins. Mr. Bauer’s
    overall conclusion was that there was “insufficient information
    to make and render a judgment that this is a sound operation.
    Details are missing”. (Tr. II 1474).
    Linda L. Lehman re Criterion 2 (Tr. II 1449—1666).
    Consulting hydrologist with 12 years experience, including
    experience with waste disposal sites. Ph.D candidate.
    hydrogeology, University of Minnesota. (See Citizens Ex. 6 for
    additional experience and qualifications.)
    Based on her review of portions of the application (11.0. Ex.
    2, Vols. 1,6), Ms. Lehman concluded that criterion 2 had not been
    satisfied because “no technically—based site selection processes
    were evident in the Application. The regular siting guidance,
    (a 1969 McHenry County document entitled Guidance For Planning
    had been largely ignored. There is a high water table. There is
    complex and uncertain hydrogeology. There are water supply
    aquifers surrounding and beneath the site. Maintenance of the
    inward design is going to be highly uncertain, because it doesn’t
    state how that is going to be maintained. (The type of design
    requires unrealistic maintenance and equipment lifetimes.
    The operation plans were rather noncommittal on this leachate
    pump out and monitoring of the levels of the leachate. (Tr. II
    1548).
    Dr. George D. Brunton re Criterion 2 (Tr. II 2014—2057).
    Professor and Chairman of Geology and Geological
    Engineering, University of Mississippi. 30 years experience as
    research geologist. (See Citizens Ex. 8 for educational
    experience, professional associations and publications.)
    Dr. Brunton’s testimony related solely to the electrical
    resistivity tests done by WMII. As to criterion 2, Dr. Brunton
    stated that he could form no opinion. The reason for this is
    that at the southern end of the resistivity survey, between
    91—99
    —14—
    Stations 4,5,6 and 7 major resistivity changes indicate that
    presence of gross anomalies, (perhaps a sand or gravel layer),
    which had not been explained and should probably be investigated
    further. (Tr. II 2030—3132, 39,40).
    Others
    Finally, called as a witness on his own behalf, appeared:
    Dr. Louis E. Marchi re Criterion 2 (Tr. II 2151—2165).
    This testimony offered criticisms to Mr. Dietzler’s rebuttal
    testimony and exhibit (App. Ex. 24), particularly as it relates
    to interaction of leachate with the proposed HDPE liner.
    Public Comments (Tr. II 2169—2284).
    The public comment session was conducted with a three minute
    per person limit to make a statement which was not subject to
    cross—examination. Thirty—nine persons spoke to voice various
    criticisms of WMII and its application.
    CRITERION
    2
    As is always the case in SB172 appeals, the Board’s task in
    reviewing the record is complicated by the fact that the County
    is not required to articulate the “findings of fact” upon which
    it rests its “conclusions of law”. The result is that the Board
    is arguably required to discuss every conflict in testimony in
    these voluminous cases to determine which were the issues of
    importance to the decisionmaker. With a record this size, it is
    virtually impossible for the Board to do so, and it is clearly
    pointless to do so. In each of the areas of site
    characterization, site design, and site operations there are
    sufficient conflicts in testimony on so many points that, viewing
    the evidence in the light most favorable to the County, the Board
    must find that the County’s decision on criterion 2 is not
    against the manifest weight of the evidence. The Board must
    further find that the County could properly hold that WMII failed
    to demonstrate that the proposed facility would be “designed,
    located, and proposed to be operated that the public health,
    safety and welfare will be protected”. The following is an
    illustrative, but not exhaustive, listing of the evidentiary
    conflicts here presented.
    The new borings, when read in conjunction with all of the
    previously available data, led Mr. Dietzler to conclude that the
    Tiskilwa Till is a homogenous mixture of silt, sand and clay
    which acts as a clay soil in terms of hydraulic conductivity.
    The 11 new continuously sampled borings amount to over 1,348
    lineal feet of soil samples. The average rate of recovery of the
    samples was greater than 98. No cobbles were encountered and
    91—100
    —15—
    there was no observed pattern of sample loss or poor rate of
    recovery. Sand particles were observed in every sample.
    However, out of 11 borings, sand seams or lenses were
    encountered in only 5 borings.
    In only 2 of these was the sand
    within 20 feet of the proposed bottom. In
    1 boring, B—30, at a
    depth of 5 feet below the proposed bottom, a 7 inch thick sand
    lens was encountered. (Tr. II 619—20). Mr. Dietzler calculates
    that less than 1 of the soil in the borings consisted of sand
    lenses. Moreover in the zone within 20 feet of the proposed
    bottom of the landfill 0.013 of the soil was sand, (App. Ex. 24,
    p. 1 and Fig. 2). It is Mr. Dietzler’s opinion that the few,
    randomly encountered sand seams pose no danger to the site, given
    the fact that all materials above the liner will be removed, and
    that a recompacted clay side seal at least 10 feet wide and a
    three foot thick bottom seal will be constructed and overlain by
    a synthetic liner.
    (Id., p. 2) It is Mr. Dietzler’s further
    opinion that these sand lenses are not continuous across the
    site. (Tr. II 621).
    The County could, however, have placed greater weight on
    opinions by others that WMII’s investigation did not go far
    enough in various respects, or that results were flawed. The
    first opinion, offered by Dr. Singh, is that in the absence of a
    pumping test it could not be determined that the sand seams were
    not continuous. (Tr. II 1871—1874, 1904—1906). The second
    opinion is that offered by Dr. Brunton that the electrical
    resistivity tests showed gross anomalies at about elevation 820
    which should have been further investigated. (Tr. II 2039—2040;
    RA l6(9)(10), Citizens Ex. 9,10). The third, shared by Dr.
    Aughenbaugh, Dr. Brown, Mr. Mack, and Ms. Lehman, was that the
    permeability test methods and results obtained by WMII were
    faulty. (Tr. II 938—939, 1240, 1361—1363, 1540—1542). Although
    WMII has offered argument and explanation which could serve to
    challenge these opinions, (e.g. Pet. Reply Brief 6—7, 19—20, 11—
    12), the County could have discounted them based on the evidence.
    In a fourth area, that of soil plasticity tests, Mr.
    Dietzler admitted to a lack of confidence in one particular test
    result run at his own lab (Tr. II 2103, 2131—2139). This result
    had served as the basis for a concern expressed by Dr. Singh
    about potential problems with construction of the bottom or side
    walls of the landfill (Tr. II 1876—1882, 1925—1929, 1982—1984, RA
    15(1), SA Ex. 10 (ex. 6)). Based on Mr. Dietzler’s admission
    that this piece of data was faulty, the County could have given
    greater weight to the testimony of Dr. Singh and others, e.g. Dr.
    Aughenbaugh (Tr. II 907—913, 938), who expressed concern about
    the plasticity of soils on the site.
    As to landfill design flaws, the County could have rested
    its decision on the fact that the application had not addressed
    the storm detention issues raised by either Mr. Layer in 1986 and
    91—101
    —16—
    1987 or by Mr. Bauer in 1987. (Tr. II 1756—1778, 1446—1470).
    Similarly, the County could have given more weight to the
    witnesses concerned by WMII’s plans for controlled leachate
    buildup, e.g. Dr. Singh, Mr. De Mers (Tr. II 1975, 1985—1987,
    1682—1686), than to Mr. Dietzler’s explanation as to why this was
    desirable. (App. Ex. 24, pp. 11—13).
    Additionally, the County could have found that both the
    design and the operations plan were too devoid of detail to allow
    it to find that WMII had carried its burden of proof. As to the
    operating plan, Mr. Rohr testified on cross—examination that
    corporate policies for the handling of such things as safety
    issues, hot loads and waste identification were not fully
    articulated or included in the application. (Tr. II 389—90, 402,
    434). As to design and construction of the liner, Dr. Singh
    testified that “what is lacking is the details of how
    construction
    ——
    quality controls and quality assurance will be
    achieved during construction. That has not been described, and
    this general statement has been made that the Applicant has a lot
    of experience in this area and Applicant knows how to handle
    that”. In response to a question, he went on to agree that “so
    basically the Applicant is saying, ‘Trust me in that area’”. (Tr.
    II 1922).
    Mr. De Mets specifically noted the same concern concerning
    placement of synthetic liners (Tr. II 1677), while Dr.
    Aughenbaugh expressed concerns about construction quality
    assurance generally. (Tr. II 959—961). As earlier outlined, the
    entirety of Mr. Bauer’s testimony relates to various details he
    considers to be unclear or missing from the engineering plans in
    various areas. (Tr. II 2449—2474).
    In summary, the Board finds that the County could have
    denied this application for any, all, or none of the reasons
    listed above; WMII has, however, failed to persuade the Board
    that the County’s decision on criterion 2 as a whole is “palpably
    erroneous, wholly unwarranted, clearly the result of passion or
    prejudice, or
    ...
    arbitrary, unreasonable, and not based upon the
    evidence”. Steinberg v. Petra, supra, 139 Ill. App. 3d at 508.
    The County’s decision denying site location suitability relative
    to Criterion 2 is accordingly affirmed.
    CRITERION 3
    Given the Board’s finding concerning Criterion 2, the Board
    need not reach the issues relative to criterion 3 and declines to
    do so. See Waste Management of Illinois, Inc. v. Lake County,
    PCB 85—75, December 17, 1987, pp. 36—37.
    This Opinion constitutes the Board’s finding of facts and
    conclusions of law in this matter.
    91—102
    —17—
    ORDER
    The February 24, 1988 decision of the Mc Henry County Board
    denying site location suitability approval to Waste Management of
    Illinois, Inc. is hereby affirmed.
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1985 ch. 111 1/2 par. 1041, provides for appeal of final
    Orders of the Board within 35 days. The Rules of the Supreme
    Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was
    adopted on the 3/~ day of ~
    ,
    1988, by a vote
    of
    .7-c)
    .
    Dorothy M./Gunn, Clerk
    Illinois Pollution Control Board
    9 1—103
    x
    ILLINOIS POLLUTION CONTROL BOARD
    December 5, 1986
    WASTE MANAGEMENT OF ILLINOIS, INC.,
    )
    a Delaware Corporation
    )
    )
    Petitioner,
    V.
    )
    PCB 86—109
    McHENRY COUNTY BOARD,
    )
    Respondent,
    )
    and
    McHENRY COUNTY CONCERNED CITIZENS
    )
    AND McHEtFY COUNTY DEFENDERS,
    )
    Cross—Petitioners,
    v.
    McHENRY COUNTY BOARD and WASTE
    )
    MANAGEMENT CF ILLINOIS, INC., a
    )
    Delaware Corporation,
    )
    Cross—Respondents.
    MESSRS. DANIEL F. CURRAN, OF HOLMSTROM & GREEN, AND DONALD MORAN,
    OF PEDERSON & HOUPT, APPEARED ON BEHALF CF THE PETITIONER.
    MR. MICHAEL F. KUKLA CF COWLIN, UNGVARSEY, KUKLA & CURRAN,
    APPEARED ON BEHALF CF THE CROSS—PETITIONERS.
    MESSRS. PAUL R. FISKE, DAVID R. AKEMANN, AND WILLIAM F. BARRETT
    APPEARED ON BEHALF CF THE RESPONDENT.
    OPINION OF THE BOARD (by
    3.
    Marlin):
    This matter comes before the Board on a July 25, 1986
    Petition for Hearing to Contest Decision of McHenry County Board
    by Waste Management of Illinois, Inc. (Waste Management) and on
    an August 11, 1986 Petition for Cross Appeal of Issues Decided by
    the McHenry County Board by McHenry County Concerned Citizens and
    the McHenry County Defenders (Cross—Petitioners). This appeal
    and cross—appeal results from the July 25, 1986 decision of the
    McHenry County Board (County Board) pursuant to Section 39.2(a)
    of the Environmental Protection Act (Act), denying approval of
    site location suitability for a sanitary landfill proposed by
    haste Management. The County Board reached its decision after 2C
    days of hearings on the matter. At the hearings, Waste
    Management, McHenry County Concerned Citizens, and the McHenry
    County Defenders each presented witnesses. In addition, an
    9 1—105
    12
    In its Findings and Order, the County Board stated that Waste
    Management had met its burden of proof as to criteria 1, 4, 5 and
    6, and had not met its burden of proof as to criteria 2 and 3.
    The Board finds these reasons to be sufficient according to
    E & E Hauling, Inc.
    Manifest Weight Standard
    The Board may reverse a County Board decision, if after
    applying the manifest weight standard the Board finds that the
    County Board decision was in error. E & E Hauling, Inc.
    V.
    Pollution Control Board, 116 Ill. App. 3d 586, 608 71 Iii. Dec.
    587, 451 N.E.2d 555 (2d Dist. 1983). The Illinois Appellate
    Court has recently stated:
    “A verdict is said to be against the manifest
    weight of the evidence where it is palpably
    erroneous, wholly unwarranted (citations omitted),
    is clearly the result of passion or prejudice
    (citations omitted), or appears to be arbitrary,
    unreasonable, and not based upon the evidence
    (citations omitted). A verdict cannot be set aside
    merely because the jury in this case, the County
    Board could have drawn different inferences and
    conclusions from conflicting testimony or because
    reviewing court in this case, the Board) would
    have reached a different conclusion if it had been
    the trier of fact. (citations omitted). When
    considering whether a verdict was contrary to the
    manifest weight of the evidences, a reviewing court
    must view the evidence in the light most favorable
    to the appellee (citations omitted). Steinberg v.
    Petra, 139 Ill. App. 3d 503, 508 (1986).
    Consequently, if, after reviewing the record, the Board finds
    that the County Board could have reasonably arrived at its
    conclusions, then the County Board’s findings must be affirmed.
    Waste Management contends that the County Board’s decisions
    regarding Criteria 2 and 3 are against the.manifest weight of the
    evidence and, therefore, should be reversed.
    Criterion 2
    Waste Management’s first witness was Daniel P. Dietzler.
    Dietzler is a professional engineer registered in Illinois. He
    is also the President of Patrick Engineering, which designed
    Waste Management’s proposed landfill (Petitioner’s Brief, p. 13,
    14). At the hearing, Dietzler testified that he believed the
    proposed landfill satisfied criterion 2. He specifically cited
    the Tiskilwa Till layer, which would be used as a natural liner
    for the landfill, as an important factor for this conclusion. (R.
    354) Dietzler stated that he believed that the Tiskilwa Till was
    well suited as a liner for a landfill (R. 271, 279—80).
    91— 106
    13
    Laboratory permeability tests showed that the ~ill had a
    hydraulic conductivity on the order of 2 x l0 cm/sec. (R.
    273). Also, four test pits, excavated in the Tiskilwa Till by
    Patrick Engineering did not show any secondary features, such as
    cracks, that would increase the Till’s permeability. (R. 655).
    Dietzler testified that the Tiskilwa Till was composed
    predominately of silts and clay particles, although it also
    contained sand and some gravel. (R. 270). He claimed that the
    Till layer would be at least 30 feet thick below the lowest point
    of the excavated landfill. (R. 288).
    Secondly, Dietzler stated that the presence of a basal sand
    layer aquifer, which lies just below the Tiskilwa Till, was
    another asset of the proposed site. Dietzler reasoned that the
    basal sand layer could be monitored to check the integrity of the
    Tiskilwa Till. That is, to determine whether the Till was
    allowing leachate to leak into the layers below. (R. 355).
    Next, Dietzler credited the inward gradient design as an
    important aspect leading to his conclusion that the proposed
    landfill satisfied criterion 2. (R. 355). Because the inward
    gradient design would cause water to migrate into the site,
    leachate would be prevented from migrating out of the site. (R.
    285).
    Dietzler claims that the leachate collection system is
    another positive aspect of the proposal. The system consists of
    perforated plastic pipes laid in a 12 inch gravel bed at the base
    of the landfill. Dietzler stated that such a system has not been
    used in any other Illinois landfill. (R. 356). He also testified
    that approximately 7,800 gallons of leachate would be removed
    from the site each day. (R. 622).
    Finally, Dietzler cited the four foot thick final cover as
    an important aspect of the design. He noted that the Illinois
    Environmental Protection Agency only requires a two foot thick
    final cover. (R. 356).
    Waste Management’s second witness, Dan L. Nelson also stated
    that he believed the proposed landfill fulfilled Criterion 2.
    Nelson works for Waste Management as the district engineer who
    would be responsible for the landfill’s construction, compliance
    with state laws and regulations, and the monitoring of the site
    (Petitioner’s Brief, p. 18). Nelson stated that Waste Management
    would do routine methane gas monitoring using probes. (R. 766).
    Also, he believed that the proposed ground water monitoring was
    adequate to meet Criterion 2. (R. 765). This proposed
    monitoring program would include quarterly sampling of water from
    surficial soils, basal sand layer, and the bedrock. These
    samples would be tested for various contaminants. (R. 822,
    823). Nelson also stated that there would be 800 feet between
    each of the three ground water monitoring wells. (R. 990).
    9 1—107
    14
    Nelson stated that Waste Management would attempt to
    maintain the leachate level at least two feet below the ground
    water level (R. 1009). He also testified that during the
    operation of the landfill, the leachate level would be monitored
    on a weekly basis CR. 833). However, during the post closure
    period, the leachate level would be only monitored on a quarterly
    basis. (R. 834). Nelson also said that in order to maintain the
    inward gradient, leachate removal would be needed “on a
    continuous basis” after the closure of the landfill. (R. 850).
    Waste Mangement’s last witness to testify regarding
    Criterion 2 was 3. Christopher Lannert. Lannert is a landscape
    architect. In summary, he stated that Criterion 2 was met for
    four reasons. First, the sitedoes not have any limiting
    characteristics which would prevent a landfill from operating
    there. Secondly, the parcel is large enough to operate as a
    landfill. It’s also situated well in terms of roadway access.
    Finally, Lannert stated that the proposed landfill was compatible
    with the surrounding area (R. 1054—55).
    The Cross-Petitioners as well as the County of McHenry put
    on witnesses during the hearing who stated that the proposed
    landfill did not satisfy Criterion 2. David Anderson, who has a
    Master’s Degree in soil physics and soil science, testified on
    behalf of the Mcuenry County Defenders. (Cross—Petitioner’s Reply
    Brief, p. 29). Anderson, who works for a firm specializing in
    hazardous waste disposal, stated that Criterion 2 was not met
    because the landfill was designed as a “below the zone of
    saturation” landfill. (R. 1552). He claimed that the rate of
    leachate generation, estimated by Waste Management, was
    unrealistically
    low. He stated that the landfill could generate
    78,000 gallons of leachate a day. (R. 1536). Anderson was
    troubled by the situation of “perpetual generation of leachate
    and a dependency (in order to maintain an inward gradient on a
    system leachate collection that definitely is not going to last
    forever.” CR. 1540). Anderson recommended that the landfill be
    moved out of the ground water zone and that synthetic liners be
    utilized.
    (R. 1556, 1554).
    The second witness for the McHenry County Defenders was Greg
    Lindsey. Lindsey is an environmental planner specializing in
    solid waste management and recycling. He is also a member of the
    Northeastern Illinois Planning Commission Solid Waste Technical
    Advisory Committee. (Cross—Petitioner’s Brief, p. 30). Lindsey
    testified that the proposed landfill does not meet Criterion 2,
    because it is inconsistent with McHenry County policies and its
    proposed post—closure plan is insufficient. Lindsey said that
    McHenry County Board has adopted 10 policies concerning Basic
    Operating Standards regarding landfills. (R. 2512). According to
    Lindsey, Waste Management’s plan doesn’t adequately address all
    of the Operating Standards. (R. 2521). The Board notes that
    Section 39.2 in its totality controls the County Board’s
    decision. In addition, Lindsey testified that even a ten year
    post—closure care period, would be insufficient. Also, he was
    91—108
    15
    concerned that the post closure fund, as proposed by Waste
    Management, would be inadequate to provide sufficient post—
    closure care. (R. 2526).
    McHenry County Concerned Citizens called George Noble as
    their first witness. Noble is a registered professional
    engineer. He works as an environmental consultant. For the last
    20 years, he has worked in the area of solid waste management and
    disposal, which included the designing of landfills. (Cross—
    Petitioner’s Reply Brief, p. 21). Noble testified that the
    landfill did not meet Criterion 2. (R. 1869). Noble stated that
    “an inward gradient landfill presupposes that there will always
    be leachate.” (R. 1848). He was concerned that inaccurate
    leachate level readings may re~u1t from the combination of three
    conditions of the proposed landfill. Due to biochemical
    reactions of the leachate, Noble believed that the leachate pipes
    might clog and that the gravel, in the gravel bed containing the
    pipes, might cement together. Also, he felt that locating all of
    the leachate monitoring wells on one side of the landfill,
    created the potential for inaccurate readings. CR. 1894, 1852).
    Under such circumstances, an outward gradient condition could
    exist without ever being detected. Noble also believed that
    Waste Management never fully addressed whether the surrounding
    ground water level would be continually monitored. CR. 1860).
    Noble testified that the Tiskilwa Till should have been
    checked for secondary features via a “test cell” procedure. CR.
    1874). He also stated that if he had designed an inward gradient
    landfill, he would have wanted a 10 foot layer of recompacted
    clay not just a natural, in situ, clay liner. He believed that a
    recompacted layer would give the engineer more control over the
    liner’s permeability. (R. 1956, 1898). Noble was also troubled
    by the fact that Waste Management never conducted any field
    permeability tests on the Tiskilwa Till, which he believed to be
    a routine procedure. He stated that the permeability results
    from field tests are sometimes two to three orders of magnitude
    greater than the permeability results from lab tests. (F.
    1840). Field permeability tests allow the testing of the
    material in
    an undisturbed condition. CR. 1885). If sand and
    gravel is present, a field permeability test may show this by a
    higher permeability value than with a lab test result. (F.
    1981). Noble felt that there was an insufficient
    amount of data
    regarding permeability of the Till (F. 1939). Specifically, he
    concluded that no lab permeability tests were even performed on
    any sample taken from the part of the Tiskilwa Till that would be
    located directly below the proposed excavated bottom of the
    landfill. (F. 1844). Noble also stated that he was concerned
    over the lack of a complete methane gas collection system. (F.
    1870).
    Dr. Musa Qutub was the second witness who testified for
    McHenry County Concerned Citizens that Criterion 2 was not met.
    Dr. Qutub has a Ph.D in geology, specializing in water
    resources. He is a hydrologist and professor at Northeastern
    9 1—109
    16
    Illinois University. (Cross—Petitioner’s Reply Brief, p. 22).
    Qutub testified
    that the proposed site failed the criterion
    because the Tiskilwa Till is
    not homogeneous. Also, Qutub
    contended that the actual flow of the ground water is not in the
    direction that Waste Management claimed it to be. He criticized
    Waste Management’s assumption that the static ground water level
    could be controlled. In addition, he believed that the proposed
    leachate collection system is inadequate. (R. 2144). Qutub
    stated that Waste Management’s portrayal of the geology under the
    site in Applicant’s Exhibit $ 16 is inaccurate. CR. 2118). He
    claims that the Tiskilwa Till is not a homogeneous layer of clay,
    but, it is rather a mixture of clay, sand, gravel and cobbles.
    These constituents other than clay give it a higher porosity and
    permeability.
    CR; 2111, 2374).
    He also believes field
    permeability tests should have been taken. CR. 2126).
    Qutub also questioned the methods of Waste Management in
    determining the direction of ground water flow. (F. 2102). Qutub
    stated that the results of his study showed that the ground water
    flowed from west to east. CR. 2100). He claims this is
    consistent with a U.S. Geological Survey finding that the flow in
    the area is from northwest to southeast. He pointed out that
    Waste Management claimed the ground water flows from east to
    west. CR. 2372). Qutub testified that an inward gradient would
    not be attained because the static water level
    could not be
    maintained in the landfill since the surrounding area is made up
    of sand and
    gravel. Also, he stated that natural phenomenon
    (such as earthquakes), rainfall,
    and pumpage will change the
    static levels. He concluded that he has never seen a sanitary
    landfill where the static water level was maintained (F. 2224—
    2225).
    McHenry County Concerned Citizens last
    witness was Michael
    Robinson.
    Robinson is a licensed geotechnical engineer. CR.
    2376).
    Robinson studied Waste Management’s boring data and
    determined that there was a correlation between areas of the
    geologic strata which
    produced low or no recovery in the boring
    sampler.
    These correlated areas of unknown composition were
    labeled as
    “phantom strata”. They are located within the
    boundaries, as defined by Waste Management, of the Tiskilwa
    Till. According to Robinson, one such phantom
    stratum ranges
    from 21/2 feet to 41/2 feet thick between elevation 830 and 820.
    He claims that another lies just below elevation 820. CR. 2391).
    The County of Mcflenry put on Robert Layer as a witness. He
    is a staff engineer for the county. (F. 2707). He found that
    with regard to storm—water management, the proposed landfill does
    not meet Criterion 2. (F. 2740). Layer claimed that water runoff
    from the final land form would be 2.3 times greater than it is
    now (F. 2718). He concludes that such a runoff would be highly
    erosive. (R. 2721).
    Jerome Chudzik was another witness for the County of McHenry
    who testified regarding Criterion 2. Chudzik is a registered
    9 1—110
    17
    professional engineer. CR. 3025). He suggested that the proposed
    landfills would meet Criterion 2. CR. 3080). However, he
    believed that his particular recommendations were important and
    should be adopted. (F. 3092). He recommended items such as
    surface water monitoring CR. 3049), additional ground water
    monitoring wells to decrease the gap between wells (F., p. 3051),
    and a methane detection system (F. 3046).
    Another County of McHenry witness, Gerald DeMers, also
    testified that the proposed landfill would meet Criterion 2.
    However, like Chudzik, DeMers stated that Waste Management should
    adopt his recommendations. (F. 3276). DeMers, a registered
    professional engineer, recommended that the leachate should not
    be allowed to accumulate. Waste Management’s plan allows it to
    accumulate to a depth of 12 feet inside the landfill. He claims
    that the removal of leachate as it is generated reduces the
    chance of not maintaining an inward gradient. (F. 3181). Also,
    to avoid excess leachate while the landfill is operating, he
    recommended that the landfill should be excavated and filled from
    the higher elevations first while working downward. This is the
    opposite of the way Waste Management has proposed filling the
    landfill. (R. 3185).
    The last County of McHenry witness was Dr. Pratap Singh.
    Dr. Singh has a Ph.D. in soil and water engineering (Cross—
    Petitioner’s Reply Brief, p. 24). He testified that the proposed
    landfill would not meet Criterion 2. (F. 3483). HiS firm
    conducted additional borings on the sites which seemed to confirm
    the phantom stratum theory. (F. 3524). After reviewing this data
    and Waste Management’s boring data, Singh stated that “4 to 5
    feet below the invert of the landfill there is a possibility that
    cobbles and boulders, plus sand seams, are there throughout...the
    entire base of the landfill.” (R. 3407). He stated field
    permeability tests should have been conducted, because they are
    more representative of true permeability. (F. 3410). Singh also
    recommended that Waste Management recompact the clay liner,
    thereby removing the cobble layers. (R. 3436). He stated that
    electrical resistivity or electromagnetic survey should be taken
    of the site to better investigate its geology. (R.
    3438).
    Singh
    stated that the present amount of data, gathered by Waste
    Management, is insufficient with regard to understanding the
    geology and hydrology of the site. CR. 3416). To better
    facilitate leachate removal, he recommended that the spacing
    between the leachate collection pipes be decreased to 150 to 200
    feet. Waste Management’s plan calls for 600 feet between
    pipes. Also, he suggested that the slope of the bottom of the
    landfill be 2 percent rather than 1 percent. (R. 3440).
    Although the testimony concerning Criterion 2 addressed a
    wide variety of issues, after reviewing the record, it is
    apparent that conflicting evidence was presented to the County
    Board on major aspects of the landfill proposal. Waste
    Management contends that the inward gradient design of the
    landfill will prevent leachate from leaking out of the
    91—111
    18
    landfill. However, Waste Management’s own witnesses have
    admitted that the landfill would require continual pumping of
    leachate, after closure, in order to maintain this inward
    gradient. According to witnesses for the Cross Petitioners, this
    constant need to monitor and pump leachate is a major detriment
    to the landfill’s design. Also, a witness for the Cross—
    Petitioners estimated that the landfill could generate 78,000
    gallons of leachate per day. This is a great contrast to Waste
    Management’s estimate of one—tenth that amount. The amount of
    leachate generated obviously has a great impact upon the
    maintenance of an inward gradient which is dependent upon the
    constant removal of leachate. Witnesses for the Cross—
    Petitioners and County of McHenry testified that the leachate
    collection system was inadequate. It was claimed that the
    proposed placement of the monitoring wells and collection pipes
    could lead to innaccurate leachate level readings. Consequently,
    an outward gradient could go undetected.
    It was also suggested by Waste Management’s opponents that
    the proposed distance between the leachate collection pipes
    should be substantially reduced. The proposed slope of the
    bottom of the landfill was also criticized by witnesses for the
    Cross—Petitioners and County of McHenry as being only half of
    what is needed for efficient leachate collection. Witnesses for
    Waste Management stated that the leachate in the landfill would
    be allowed to accumulate to a depth of about 12 feet. However,
    witnesses for the County of McHenry and the Cross—Petitioners
    agreed that the leachate should not be allowed to accumulate in
    order to reduce the chances of accidently creating an outward
    gradient.
    In addition, evidence was presented by the Cross—Petitioners
    that the groundwater flow was in the direction opposite of what
    Waste Management claimed it to be. The methodology of Waste
    Management’s hydrologic study was severely criticized by one of
    the Cross—Petitioner’s witnesses. It was also stated by this
    witness that an inward gradient design was unworkable because it
    relied on the questionable assumption that static water levels
    could be maintained.
    In its design, Waste Management utilizes 30 feet
    of Tiskilwa
    Till as an in situ liner. Waste Management claims that lab tests
    on the permeability of Tiskilwa Till indicate that it has a
    sufficiently low permeability. Witnesses for the Cross—
    Petitioners and County of McHenry stated that field permeability
    tests should have been conducted. Specifically, they claimed
    that the permeability indicated from lab tests could be several
    orders of magnitude less than the level of permeability that
    actually exists on the site. It was also pointed Out that Waste
    Management did not perform even lab permeability tests on samples
    taken from the area of the Till that would actually function as
    the liner.
    91—112
    19
    Waste Management’s witnesses also claimed that the Tiskilwa
    Till is a fairly homogeneous formation that is composed
    predominately of silty clay.
    However, other witnesses countered
    that the Till is not homogeneous, and it likely contained layers
    of sand, gravel, and cobbles. The phantom strata interpretation
    of boring logs presented by witnesses for the Cross—Petitioners
    and the County of McHenry, conflicts directly with the geologic
    interpretation
    of Waste Management. These phantom layers are
    claimed to be located just below the proposed excavated bottom of
    the landfill. It is suggested that the “phantom strata” are
    composed of cobbles and boulders. If layers of cobbles and
    boulders are present in the Till, as it was claimed, then the
    overall permeability of the Till would be much greater than what
    Waste Management has concluded.~ Witnesses for the Cross—
    Petitioners and County of McHenry also criticized Waste
    Management’s methodology in evaluating the geology of the site.
    Specifically, opposing witnesses contended that Waste Management
    had not gathered enough boring data of the area within the
    proposed landfill footprint and the area surrounding the site.
    The above summary of the various positions of the witnesses
    touches only upon certain issues regarding Criterion 2. There
    are literally thousands of pages of testimony addressing this
    particular criterion. Pursuant to the manifest weight standard,
    the Board must consider the evidence in the light most favorable
    to the County Board’s position that Waste Management’s proposal
    did not meet this criterion. Credible testimony was presented
    which questioned the wisdom of Waste Management’s application.
    This is particularly true regarding ground water dynamics, sub-
    surface geology and the ability of the design to function
    properly over time.
    After reviewing the massive record, it becomes apparent that
    the County Board could have reasonably concluded that Waste
    Management’s proposal did not satisfy Criterion 2. Therefore,
    applying the manifest weight standard, the Board affirms the
    County Board’s finding regarding Criterion 2. The Board notes
    that it has in no way made a determination as to the general
    suitability of inward gradient landfills.
    Criterion 3
    Waste Management’s first witness with regard to this
    criterion was
    3.
    Christopher Lannert. Lannert has been a
    landscape architect and urban planner for the past sixteen years.
    (Petitioner’s Brief, p. 19). He testified that the landfill was
    “designed The Board notes that the statutory language of this
    Criterion is “located” not “designed”. to minimize
    incompatibility with the surrounding area.” He specifically
    cited several factors for the basis of his opinion. First, he
    believed that the end use plan was compatible with the
    surrounding area. (F. 1086). However, he also acknowledged that
    the surrounding area does not have a sufficient population now,
    or even in the year 2005, to support the proposed recrational use
    91—113
    20
    after the landfill closes. (F. 1188). Secondly, Lannert stated
    that the screening berms, planting, and setbacks would “protect
    our neighbors.” He also felt that the landscaping around the
    entrance to the proposed landfill was adequate to shield the
    truck traffic from view. Next, he stated that the surrounding
    topography and woodlands were
    consistent with the landfill and
    helped to minimize its impact. Finally, he stated that the
    intermediate screening berms, which would be utilized during the
    actual filling of the landfill, would serve to reduce the impact
    of the landfill’s operations on the surrounding area. (R. 1086,
    1087). Lannert testified that the landfill in its final form
    would end up being the highest point in the Township (F. 1136).
    He stated that the highest point of the final form would be 75
    feet higher than the existing high point on the site. (R.
    1074). The permanent screening bern, which would be erected on
    the eastern boundary of the site, would only be 25 feet high. (F.
    1144). He stated that the residences east of the site would
    screen the view of the landfill from each other. (F. 1084).
    According to Lannert, the site is bounded by open farmland
    to the north and to the south. West of the site is a large tree
    nursery. (R.
    1068). He stated that single lot residences are
    located in a wooded area east of the site. (F. 1070).
    Lannert testified that the site is presently zoned A—i, for
    agriculture. He noted that
    a landfill could be permitted as a
    conditional use in such a zoning classification. (F. 1218).
    However, he also stated that McHenry County
    classifies this site
    “as prime farmland” due to its soil composition. CR. 1048).
    Lannert testified that the McHenry County Comprehensive Land
    Use Plan also shows the site in an agricultural district. In
    the plan, just east of the site is an agricultural—rural
    transitional zone. (F. 1049). Lannert stated that the site
    contains 15 recorded lots. He claimed that the existence of
    these potential residences take the site out of a “pure
    agricultural classification.” That is, he believed the site has
    turned from an agricultural to a more residential type use. (R.
    1193). He stated that if residences were built on the site, they
    would be “an extension of this east of the site residential
    community.” (F. 1192). Lannert stated that the presence of these
    recorded lots makes the site inconsistent with the pure
    agricultural classification of Comprehensive Land Use Plan.
    Therefore, Lannert concluded that the site is really located in a
    “flexible area” of classification. (R. 1050). However, Lannert
    also asserted that a landfill would be better classified as an
    agricultural rather than residential use. (F. 1181).
    Waste Management’s other witness concerning this Criterion
    was Thomas Collins. Collins has been a real estate appraiser and
    consultant for 32 years. (Petitioner’s Brief, p. 30). He
    testified that the landfill would not be incompatible to the
    surrounding area. (F. 1263). He also classified
    a landfill as
    being an agricultural or residential type of use rather than an
    industrial or commercial use. (R. 1338). In his report on the
    91—114
    21
    site, he had
    stated that the immediate area around the site had
    no discernable trend. However, Collins testified at the hearing
    that the trend in the area is toward residential development. (F.
    1298, 1318). However, he did state that the Emery Woods
    subdivision, which is located east of the site, is only 60
    percent developed even though the development is 15 to 20 years
    old. (F. 1255).
    Collins also testified that the end use plan of the landfill
    would not cause any depreciation or change in the area’s
    development trend. (F. 1263). He claimed that the landfill, even
    during its operation, would not deter the residential growth east
    of the site (F. 1271). He testified that residential development
    has continued near several Illinois landfills. The Veugler
    landfill near Crystal Lake in McHenry County was used to
    illustrate this point. He stated that construction of homes near
    that landfill had continued and expanded (F. 1267—1270).
    He also
    testified
    that the proposed screening and berming would have a
    positive effect on the neighborhood and were significant when
    considering the effect on property values (F. 1262). Collins
    testified that only one piece of property in the area will lessen
    in value due to the landfill. According to Collins, this
    property, located just off the
    southwest corner of the landfill’s
    boundary, would lessen in value no matter what type of screening
    is used. (R. 1273). However, he claimed that other properties in
    the area would not
    diminish in value if the landfill was sited.
    (F. 1269). Collins never addressed farmland values because
    he
    felt that farms
    were not the highest and best use of the land.
    (F. 1360).
    Herbert Harrison was the first County of McHenry witness who
    testified regarding Criterion 3. He stated that the proposed
    landfill did not minimize incompatibility and the impact on
    property values. (F. 2850). He attacked Waste Management’s
    report regarding this Criterion as having “no substance.” That
    is, he believed an insufficient amount of information had been
    gathered by Waste Management. (B. 2845, 2846).
    Harrison testified that there were 11 homes within a
    quarter
    of a mile of the landfill and 14 homes within a half a mile. (R.
    2880). He also was concerned that if odors were emitted from the
    landfill, they would be blown by the wind to the subdivisions
    east of the site. CR. 2812). Harrison, though, suggested
    that if
    the final form of the landfill was limited to the existing
    contours, instead of 80 to 90 feet above them, the impact of the
    landfill on the properties east of the site would be minimized.
    (F. 2946). Harrison stated that the obvious trend in the
    building of single family residences was from Route 47 westward
    toward the site. (F. 2849). He concluded that if residences were
    built
    on the site, they would merely be “a continuation of the
    slow but steady trend that
    has occurred there over the past 20
    years.” (F. 2845).
    Harrison also acknowledged that the
    population of Seneca Township has been projected to grow by less
    than 1,000 people from 1980 to the year 2005. (F. 2899).
    9 1—115
    22
    Harrison pointed out that Waste Management’s report by
    Collins did not appraise any values of property east of the
    site. Harrison
    claimed that this was not done, because Collins
    believed the technology of the landfill was such that it would
    not adversely
    impact on
    those properties.
    According to Harrison,
    that was a wrong assumption. CR. 2816).
    Harrison also stated
    that a multiple regression analysis of area property values
    should have been run by Waste Management to accurately
    investigate the landfill’s
    impact. (F. 2826).
    Harrison noted
    that Waste Management also did not investigate the potential loss
    of value to the properties east of the site, due to the fact that
    the high final elevation of the landfill would block the late
    evening sun. (R. 2836).
    The other County of McHenry witness who addressed Criterion
    3 was
    Steve Aradas. Aradas is the Director of the McHenry County
    Department of Planning. (Cross—Petitioner’s Reply Brief, p.
    32). He
    testified
    that the site is not located to minimize
    incompatibility. (F. 2971). Aradas stated that the only way to
    minimize incompatibility was to locate
    the
    landfill in an
    industrial area. He particularly emphasized incompatibility due
    to the fact that the landfill final form will extend 80 to 90
    feet above the existing contours. He discounted the use of berms
    as having minimizing effect. (F. 2979). Aradas also claimed the
    proposed recreational end use would be an anomaly in the
    agricultural type of area surrounding the site. (F. 2968).
    He testified that within a l1/2mile radius of the site were
    94 single lot residences and 24 farmsteads. (F. 2961). He stated
    that the predominant land use east of this site was residential.
    (F.
    2965). He claimed that the trend along Route 176 is toward
    residential use. Consequently, according to Aradas, residential
    development would be more compatible than a landfill. (R. 2972).
    However, because the site is considered “prime farmland,”
    Aradas testified that the highest and best use for the site would
    be farming. (F. 2977, 2978). He stated that the County’s zoning
    and Comprehensive Land Use Plan
    objectives are to protect
    productive
    farmland from development.
    CR. 2463, 2967).
    In summary, Waste Management presented testimony which
    stated that the landfill’s design
    would minimize incompatibility
    with the surrounding area. Waste Management contended that the
    presence of berms and landscapes would minimize the impact on the
    landfill’s
    neighbors.
    Also, witnesses for Waste Management
    stated that a landfill site would not be inconsistent with the
    County Plan or detrimental to the residential development of the
    area. In addition, Waste Management claims that only one piece
    of property would suffer a loss in value due to the landfill.
    The County of McHenry presented witnesses who testified in
    opposition to Waste Management’s position. One witness stated
    that since the site is considered “prime farmland,” it should be
    91—116
    23
    preserved as an agricultural use. It was claimed that such a use
    would serve the objectives of the County Plan and the areas
    zoning. The development trend of the area was stated to be
    residential. It was concluded by the County of McHenry witnesses
    that a residential use of the Site would be more compatible with
    the surrounding area than a landfill use. These witnesses also
    claimed that the berms and landscaping would not minimize
    incompatibility, especially since the final landfill form would
    be 80 feet higher than the existing contours of the site. Waste
    Management’s study concerning had values was also criticized as
    being insufficient and inaccurate.
    With regard to this Criterion “an applicant must demonstrate
    more than minimal efforts
    to r~ducethe landfill’s
    incompatibility.” Waste Management of Illinois, Inc. v. Illinois
    Pollution Control Board, 123 Ill. App. 3d 1075, 1090, 79 Ill.Dec.
    415, 463 N.E.2d 969, 980 (2d Dist. 1984). However, the Second
    District, following E & E Hauling, Inc. v. Pollution Control
    Board, 116 Ill. App. 3d 586, 71 Ill. Dec. 587, 451 N.E.2d 555 (2d
    Dist. 1983) also stated that “an applicant must demonstrate it
    has done or will do what is reasonably feasible to minimize
    incompatibility.” Waste Management of Illinois, Inc., 123 Ill.
    App. 3d at 1090, 463 N.E.2d at 980. The Board assumes that the
    same conditions apply to the requirement to “minimize the effect
    on the value of surrounding property.” It is apparent from the
    record that the applicant has studied the surrounding area. The
    site is mostly bordered by agricultural land with scattered
    residences, particularly to the east. A landfill could
    reasonably be located in such an area.
    Waste Management’s
    proposal reflects more than a token effort to minimize
    incompatibility. Waste Management presented an extensive plan
    for setbacks, berms, and landscaping. Their proposal seems to
    include that which would be considered “reasonably feasible to
    niinimizie incompatibility.” Therefore, viewing this record in
    light of the above case law, the Board finds that the County
    Board’s decision with regards to this criterion was against the
    manifest weight of the evidence. The Board hereby reverses the
    County Board’s finding that Criterion 3 was not met.
    CROSS APPEAL
    Sufficiency of Application
    The Cross—Petitioners contend that the County Board should
    have dismissed Waste Management’s application, because it did not
    contain all the information which is required by the Articles of
    Rules and Procedures of the Regional Pollution Control Facility
    Committee (Hearing Officer’s Exhibit $6). Specifically, the
    Cross—Petitioner’s claim that the application did not contain
    “all land uses within a one—mile radius of the site” (Article IV,
    Section (l)(A)(8)(g)), “property values of the surrounding
    properties” (Article IV, Section 1(D)(5)(b)(4)(c)(l)), and the
    “financial condition of Waste Management of Illinois, Inc.”
    91—117
    28
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    IT IS SO ORDERED.
    B. Forcade, F. Flemal, and J.T. Meyer concurred.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify ~at the above Opinion was adopted on
    the ~ç~! day of
    ~
    ,
    1986, by a vote
    of _______________________
    Dorothy
    L~G~
    14 unn, Clerk
    Illinois pollution Control Board
    91—118

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