BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS,

INC. and KENDALL

COUNTY LAND

AND CATTLE, LLC,

Petitioner

v.

COUNTY BOARD OF KENDALL

COUNTY, ILLINOIS,

Respondent

)

)

)

PCB 09-43

)

)

(Pollution Control Board Facility

)

Siting

)

Appeal)

)

)

)

)

)

)

NOTICE OF FILING

To: All Counsel of Record, See Attached Service List

PLEASE TAKE NOTICE that the undersigned has, on this 10th day of April,

. 2009, caused to

be 'filed with the Clerk of the Illinois Pollution Control Board, via

electronic filing, the attached

Motion

to

Dismiss Portions

of

Amended Petition for

Hearing

to

Contest Site Location Denial

on behalf

of

the County Board of Kendall

County, Illinois, a copy

of which is herewith served on you.

James

F. McCluskey

James S. Harkness

Jennifer

L. Friedland

Momkus McCluskey, LLC

1001 Warrenville Road, Suite 500

Lisle, IL 60532

Tel: (630) 434-0400

Fax: (630) 434-0444

jfmccluskey@momlaw.com

jharkness@momlaw.com

j'friedland@momlaw.com

W:\26_59\4587.080523\Pleadings\NOF 4.10.09.doc

Respectfully submitted,

County Board

of Kendall County, Illinois

By:

Is/James

S. Harkness

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS, INC.)

and KENDALL COUNTY LAND AND

)

CATTLE,

LLC,

)

)

Petitioners,

)

)

vs.

)

)

COUNTY BOARD OF KENDALL COUNTY, )

ILLINOIS,

et. al.,

)

)

Respondent.

)

PCB 09-43

(Pollution Control Board Facility

Siting Appeal)

MOTION TO DISMISS PORTIONS OF AMENDED PETITION FOR HEARING TO

CONTEST SITE LOCATION DENIAL

NOW COMES Respondent, COUNTY BOARD OF KENDALL COUNTY,

ILLINOIS ("County Board"),

by its attorneys MOMKUS McCLUSKEY, LLC, and as its

Motion to Dismiss Portions of Amended Petition for Hearing to Contest Site Location

Denial ("Amended Petition"), brought pursuant to 735 ILCS

5/2-619

and 35 III. Adm.

Code 101.506, states

as follows:

1.

Respondent seeks the dismissal of Petitioners' allegations set forth in

paragraphs 10 and 11 of their Amended Petition

with prejudice

due to the failure of the

Petitioners to establish any cause of action

in law or fact.

2.

In support of Respondent's Motion to Dismiss, it submits and fully

incorporates

as though stated herein the attached

Memorandum of Law in Support of

Motion to Dismiss Portions of Amended Petition for Hearing to Contest Site Location

Denial.

3.

Each basis asserted in Respondent's Motion to Dismiss and supporting

Memorandum of Law justifies dismissal,

with prejudice,

of paragraphs 10 and 11 of the

Amended Petition.

As such, Respondent respectfully requests that the Illinois Pollution

Control Board enter

an Order dismissing these allegations in Petitioners' Amended

Petition.

---

WHEREFORE, for the above stated reasons, Respondent, COUNTY BOARD OF

KENDALL COUNTY, ILLINOIS, respectfully requests that the Illinois Pollution Control

Board dismiss the Petitioners' allegations set forth in paragraphs 10 and

11 of their

Amended Petition for Hearing to Contest Site Location Denial, with prejudice, and for

any other

or further relief the Illinois Pollution Control Board deems just and proper.

James

F. McCluskey

James

S. Harkness

Jennifer

L. Friedland

MOMKUS McCLUSKEY, LLC

1001 Warrenville Road, Suite 500

Lisle, IL 60532

(630) 434-0400

(630) 434-0444 FAX

Attorneys for Respondent

W:\26_59\4587.080523\Pleadings\lPCB\MotDismiss.doc

Respectfully submitted,

COUNTY BOARD OF KENDALL COUNTY,

ILLINOIS

By:

lsi

James S. Harkness

James

S. Harkness

2

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT

OF ILLINOIS, INC.)

and KENDALL COUNTY LAND AND

)

CATTLE,LLC,

)

)

Petitioners,

)

)

vs.

)

)

COUNTY BOARD OF KENDALL COUNTY, )

ILLINOIS,

et. al.,

)

)

Respondent.

)

PCB 09-43

(Pollution Control Board Facility

Siting Appeal)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PORTIONS OF

AMENDED PETITION FOR HEARING TO CONTEST SITE LOCATION DENIAL

NOW COMES Respondent, COUNTY BOARD OF KENDALL COUNTY,

ILLINOIS ("County Board"),

by its attorneys MOMKUS McCLUSKEY, LLC, and as its

Memorandum of Law

in Support of Motion to Dismiss Portions of Amended Petition for

Hearing to Contest Site Location Denial, brought pursuant to 735 ILCS

5/2-619

and 35

III. Adm. Code 101.506, states as follows:

INTRODUCTION

In their Amended Petition for Hearing to Contest Site Location Denial ("Amended

Petition"), Waste Management of Illinois, Inc. ("Waste Management")

and Kendall

County Land and Cattle, LLC, allege the following:

"10.

The hearing officer improperly struck the public comment

filed October

28, 2008 by WMII, in violation of Section 39.2(c) of the Act

and of Articles 6 and 7 of the Amended and Restated Kendall County Site

Approval Ordinance for Pollution Control Facilities ("Ordinance

No. 08-

15").

11.

The hearing officer improperly struck a portion of the

written findings of the County Board's legal counsel,

in violation of

---

Sections 8.4 and 9.2 of Ordinance No. 08-15." (Exhibit A, Amended

Complaint).

The October 28,2008 "public comment" stricken

and referenced in the Amended

Petition was actually deemed to

be impermissible late-filed evidence by the hearing

officer, Patrick

M. Kinnally ("Mr. Kinnally"). (Exhibit B, November 11, 2008 Order);

(Exhibit

C, Waste Management's October 28, 2008 filing). The late-filed evidence was

the subject of motions

to strike to which Waste Management filed a written response.

(Ex. B). Mr. Kinnally, properly, concluded that the late-filed evidence attempted to

"explain why [Waste Management] did not undertake the investigation of certain

unconsolidated soils."

(Ex. B, p. 3). Also, he found that the late-filed evidence

"submission contains various tests conducted

by [Waste Management]

after the

hearing closed.

These studies were performed

on a part of the facility footprint that

had not been examined and included

as

part

of

WMl's application ...

The point is,

WMI had the ability to perform these studies as part of its application and chose not to

do so."

(Ex. B, p. 4). (Emphasis supplied).

Similarly, the allegedly stricken findings of counsel alleged

in paragraph 11 of

Waste Management's Petition are the very same materials that were later sought to

be

re-introduced into the record (Exhibit 0, November 13, 2008 Order, p. 1) ("it parrots the

opinions contained

in WMl's late-filed submission); (Ex. 0, p. 2) ("Already, in the WMI

order it was indicated that WMl's submission would not

be recognized"); (Exhibit E,

Blazer Report).

Each allegation presents a question of law that should

be determined from the

record. Specifically, (i) whether the material stricken from the October

28, 2008

submission was "public comment," or actually improper late-filed evidence as the

hearing officer held,

and (ii) whether the hearing officer properly struck an improper

submission as a violation

of the hearing's notice requirements under Sections 8.4 and

2

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

9.2 of the Kendall County Facility Ordinance No. 08-15 ("the Ordinance"), as the hearing

officer held. (Exhibit

F, Ordinance)

With regard to these allegations, each can be determined solely from the record

and application

of the law. No set of facts can be proven to contradict the record and,

therefore, Respondent is entitled to judgment as a matter

of law pursuant to Section 2-

619

of the Illinois Code of Civil Procedure. Succinctly, the material was not submitted

during the hearing. That is uncontroverted. It is either late-filed evidence

or it is not.

This is a legal question.

FACTUAL BACKGROLIND

Public hearings before the County Board and Mr. Kinnally began on September

8, 2008 and concluded on October 1, 2008. On October 28, 2008,

approximately

seven

(7)

weeks after the deadline to file evidence and nearly four

(4)

weeks after

the close

of

the public hearing,

Waste Management, one of the Petitioners in this

matter, submitted

new

evidence in the form of hydrogeologic reports for tests that had

never been performed prior, as exhibits, but labeled that evidence as "public comment."

(Ex. C). The cover letter that was submitted with Waste Management's purported

"public comment" admits that the data and reports were provided as additional evidence

to support the theory that the unconsolidated soils beneath the double composite liner

are a confining unit. (Ex.

C, p. 1).

The evidence submitted for the first time by Waste Management on October 28,

2008 purports to describe, map and report

on a series of wells that were allegedly drilled

on the site between October 17,2008 and October 20, 200B-after the hearing closed-

to support Waste Management's theory of the site's hydrogeology. (Ex. C). The

evidence also includes new soil boring logs.

Id

..

According to the cover letter for the evidence, it was allegedly filed in response to

inquiries made by

Mr. Kinnally and the County Board during the rebuttal portion of Waste

3

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Management's case. (Ex. C, p. 1). Waste Management knew that, after the hearings

took place, it failed to meet its burden. Thus, additional, new studies were sought

because originally "more wells were not put into the unconsolidated soils without going

into the bedrock."

Id.

Indeed, Waste Management agreed with a statement purportedly

made by Mr. Kinnally that "information from such wells that showed no water would be

the

most convincing evidence ... "

in its case.

Id.

(Emphasis added). This information

was obviously lacking in Waste Management's hydrogeologic study of the proposed site

before and during the time of hearing.

In fact, the record is devoid of any such evidence

prior to the close of the hearing and period for submitting evidence. This is why Waste

Management attempted to file what it thought to be its "most convincing evidence" under

the guise

of "public comment" nearly four (4) weeks after the close of the public hearing.

Both Grundy County and Village of Minooka, participants in the hearing, filed

Motions to Strike Waste Management's October 28, 2008 filing. (Ex.

B, p. 1). In his

November 11, 2008 ruling,

Mr. Kinnally found the following regarding the October 28,

2008 filing: "Clearly, it

is evidence, and I so find it to be." (Ex. B, p. 2). Mr. Kinnally

further found that the evidence was not filed

in "apt time" and that Waste Management

failed to satisfy the "good cause" exception for late filing of evidence.

Id.

As part of his

explanation for his ruling, Mr. Kinnally states the following:

"One of the underlying tenets of the ordinance, of which I am charged to

observe

is that any decision shall be in accord with the concept of

fundamental faimess (Ord. Sec. 7.12(2)(b».

This applies to all

participants. The Ordinance provides every participant has the guarantee

of cross-examination

(Ord. Sec.

7.1 (2)(i». It is an important right. This

hearing is a testament to that fact.

Here, the admission

of WMI's

submission would foreclose the rights of every participant, as well as the

Board, from being able to test, by cross-examination, the testimony of the

persons who authored the reports sought to be admitted. That is unfair."

(Ex.

B, p. 4).

On November

5, 2008, the County Board's counsel, Michael Blazer, filed a report

that adopted and re-submitted the representations, arguments and late-filed evidence

of

4

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Waste Management ("The Blazer Report"). (Ex. E). This, simply, was a back door re-

submittal of Waste Management's late-filed evidence.

Additionally, the Blazer Report improperly relied

on a November 4, 2008 report

drafted

by a professional geologist, Laura Swan ("the Swan Report"). (Exhibit B to Ex.

E). It appears that Blazer attempted to admit this report into evidence simply by

attaching it to his recommendation report. The Swan Report evaluates the hearing

testimony and exhibits and she

also

relied heavily on Waste Management's late-filed

hydrogeologic evidence.

Finally, the Blazer Report improperly relied

on and attached a report drafted by

Stuart Russell, an engineering expert (the "Russell Report"). (Exhibit A to

Ex. E). Here,

Blazer attempted again to file evidence by attaching

it to a report. The purpose of

presenting the Russell Report was apparently to discredit damaging testimony given

under oath

by a hearing witness. However, the Russell Report expresses opinions of an

expert who did not testify and, therefore, could not be cross-examined.

Grundy County responded to the Blazer Report with a Motion

to Strike the report,

arguing that the exhibits attached to the report were filed untimely, never admitted into

evidence

and, therefore, should not be considered by the County Board because they

were outside of the record.

(Ex. D, p. 1). Mr. Kinnally ruled on this legal issue in his

November

13, 2008 order, finding that the Swan Report and Russell Report were both

late-filed evidence and that Blazer offered

no "good cause" as to why the reports were

not offered

as evidence at the hearing where, in fact, he produced no evidence

whatsoever

on behalf of the County. (Ex. D). Although Mr. Kinnally did not strike the

entire Blazer Report,

he struck the attached Swan and Russell reports and any

reference made thereto

in the Report.

Id.

In its Amended Petition, Waste Management now claims that Mr. Kinnally's

evidentiary rulings

on the above matters were improper and fundamentally unfair

5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

through allegations 10 and 11 of the Amended Petition. This is absolutely not the case

and is affirmatively disposed of by the record itself, which negates the claims.

STANDARD

A section 2-619 motion to dismiss affords a means of obtaining a summary

disposition of issues of law or easily proved issues of fact.

Kedzie and 103

rd

Currency

Exchange

v. Hodge,

156111.2d 112, 115,619 N.E.2d 732, 735 (1993); 7351LCS

5/2-619.

In achieving this end, a section 2-619 motion raises defects or defenses that negate a

plaintiff's cause of action completely or refute conclusions of material fact that are

unsupported

by allegations of specific fact.

Spillyards v. Abbound,

278 III.App.3d 663,

668,662, N.E.2d 1358,

1361 (1

st

Dist. 1996). When raising such defects or defenses, a

section 2-619 motion admits

all well pleaded facts together with all reasonable

inferences which may

be gleaned from those facts.

Id.

However, section 2-619 does not admit mere conclusions of law or conclusions

of fact unsupported

by allegations of specific fact that those conclusions rest upon.

Id.

"In order to sufficiently state a cause of action, a complaint must allege facts, not mere

conclusions,

in support of each of the elements of the claim."

Brown Leasing, Inc. v.

Stone,

284 III.App.3d 1035, 1045, 673 N.E.2d 430

(1st

Dist. 1996),

citing, Harris v.

Johnson,

218 III.App.3d 588,161 III. Dec. 680, 578 N.E.2d 1326 (1991);

see also Logal v.

Inland Steel Industries, Inc.,

209 III.App.3d 304, 308, 568 N.E.2d 152 (1

st

Dist. 1991)

(finding insufficient "conclusions of

law or fact that are unsupported by allegations of

specific facts upon which such conclusions rest."); Although a motion to dismiss admits

all well-pleaded facts, it does not admit conclusions of fact or conclusions of law

unsupported by specific facts.

Provenzale v. Forister,

318 III.App.3d 869, 878, 743

N.E.2d 676, 683

(2

nd

Dist. 2001).

6

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

DISCUSSION

In finding that Waste Management's October 28, 2008 filing and portions of the

Blazer Report were late-filed evidence and striking

same, Mr. Kinnally was clearly

operating within his legal duties

and boundaries. Under Article 7 of the Ordinance, a

hearing officer of a site proceeding

is authorized to rule on evidentiary issues and issues

of fundamental fairness.

(Ex. F).

Pursuant to Section 7.1 (2)(a) of the Ordinance, the hearing officer of a site

proceeding is authorized to "preside over the siting hearing

and be responsible for ruling

on preliminary motions,

evidentiary issues,

objections or any other contested legal

issues."

(Ex. F) (Emphasis supplied). Section 7. 1 (2)(b) further allows the hearing officer

to:

" ... make any decisions concerning the manner

in which the hearing is

conducted subject to this Ordinance and the law concerning such

applications. All decisions and rulings shall

be in accordance with the

concept of fundamental fairness ... "

(Ex. F).

Section 5.5 of the Ordinance provides the following, in relevant part:

"Subject to the Hearing Officer's right to extend filing deadlines

as set

forth

in Article 7, all reports, studies, exhibits

or other evidence

or copies

thereof, other than testimony, which any Participant desires

to submit for

the record at the public hearing

must be filed with the County Clerk at

least seven

(7)

calendar days before the public hearing

and shall be

available for public inspection in the office of the County Clerk ... " (Ex. F)

(Emphasis supplied).

Section 5.5 is unmistakably intended to provide

all participants with an

opportunity to review and scrutinize all of the applicant's technical evidence at the

hearing. However, there

is a provision that allows late-filed evidence, under very strict

circumstances. Pursuant to Section 7.1(2)0) of the Ordinance, as to the rebuttal portion

of any participant's case, evidence

may be filed one day before the day of the public

hearing at which it

is offered. (Ex. F). In this case, neither Waste Management's

October

28, 2008 filing nor the stricken portions of the Blazer Report fall under this

7

---

exception to the Section 5.5 late-filed evidence rule, as both were filed, for the first and

only time,

long

after the hearing took place.

A.

Hearing Officer Kinnally Properly Struck Waste Management's Late-Filed

Evidence.

Because the evidence filed by Waste Management on October 28, 2008 was

filed nearly four (4) weeks after the hearing, the Participants who opposed the siting had

no opportunity to cross-examine the technical findings presented in Waste

Management's new evidentiary reports. For example, there was no way of determining

Waste Management's methodology for deciding how, under what conditions and where

to

drill the wells that are the subject of the reports. There was no way to ask the reports'

creators questions about their discoveries

and determinations. As such, these reports

should not have been considered

by the County Board in making its siting decision. For

Mr. Kinnally to rule otherwise would have been fundamentally unfair to Kendall County,

its County Board and non-applicant Participants and would have been a clear violation of

the Ordinance.

The Ordinance clearly differentiates between "evidence," which must be filed at

least seven (7) days

in advance of the hearing, and "written comment" which may be

filed at any time during the thirty (30) days following the hearing. (Ex. F at 5.5, 6.1 and

6A).

The purpose for differentiating between "evidence" and "comment" is apparent, as

evidence must be subject to scrutiny and cross-examination, especially if it is technical

evidence, as Waste Management's October 28,2008 filing was.

The Illinois Environmental Protection Act ("the Act") requires that

an applicant

seeking siting approval "submit sufficient details describing the proposed facility to

demonstrate compliance" with the siting criteria detailed

in §39.2 of the Act. 415 ILCS

5/39.2(a}. The Act further provides that, after

an application is filed, public hearings are

to

be conducted for the purpose of publicly assessing the sufficiency of the application.

8

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

415 ILCS 5/39.2(d). In this case, Waste Management clearly did not complete its

application before filing, because

in response to Mr. Kinnally and the County Board

acknowledging during the hearing that Waste Management failed to present certain

hydrogeologic evidence, Waste Management proceeded to conduct new testing

to

obtain that evidence

after the hearing

and then submit it as "public comment." This

testing was available

to Waste Management prior to the hearing and should have been

conducted and filed prior to the hearing.

Moreover, as Grundy County pointed out

in its reply brief filed in support of its

motion to strike Waste Management's late-filed evidence, "[t]his proceeding is not Waste

Management's debut with respect to supplying after-the-fact evidence disguised as

Public Comment." (Exhibit

G, Grundy County's Reply, p. 6) (citing a string of cases

demonstrating that, "over the last eight

(8) years, Waste Management has grown ever

more bold

in its efforts to circumvent the public siting requirement by utilizing this

technique).

By attempting to file evidence under the pretext of "public comment," Waste

Management attempted to avoid subjecting its newly-developed reports and conclusions

to scrutiny.

Mr. Kinnally was correct in finding that Waste Management could not cure

its inadequate investigation

by conducting testing at the site after the hearing and then

providing new reports

and conclusions at a time when the Board and other interested

parties have no opportunity to question such data. Therefore,

as a matter of law, Mr.

Kinnally properly found Waste Management's October 28, 2008 filing to be late-filed

evidence

and properly struck that evidence from the record.

B.

Hearing Officer Kinnally Properly Struck Portions of the County Board's

Counsel's Written Findings, Which Sought to Re-Submit the Improper Late-

Filed Evidence.

The Blazer Report asked the County Board

to consider material that is outside of

the official record. Not only did it rely

on the October 28, 2008 late-filed evidence by

9

---

Waste Management, but it relied on the Swan and Russell Reports, which are

unadmitted expert opinion evidence predicated upon

additional

unadmitted evidence, Le.

the October 28, 2008 filing. (Ex. E).

It is well-settled Illinois administrative law that a decision-maker must base its

decision upon the facts, data

and testimony in the record, and not on any information

outside of the record.

Seul's, Inc. v. Liquor Control Comm'n,

240 IILApp.3d 828, 831 (1

st

Dist. 1993);

Gumma v. White,

345 IILApp.3d 610,655 (1

st

Dist. 2003),

affirmed,

216 IIL2d

23 (2005). Moreover, nothing can be treated as evidence in the record unless it is

introduced as such.

Anderson v. Human Rights Comm'n,

314 III.App.3d 35 (1

st

Dist.

2000).

Therefore,

Mr. Kinnally correctly determined that the Swan and Russell Reports

were late-filed evidence.

(Ex. D). Therefore, those reports and any mention of them in

the Blazer Report were correctly stricken from the record.

There

is no question of fact. Waste Management's allegations are legal

conclusions affirmatively negated

by the record: the stricken material was predicated on

unadmitted evidence submitted by Waste Management, and on reports expressing the

opinions of experts who never testified and whose reports were never presented at the

hearing.

CONCLUSION

WHEREFORE, for the above stated reasons, Respondent, COUNTY BOARD OF

KENDALL COUNTY, ILLINOIS, respectfully requests that the Illinois Pollution Control

Board dismiss the Petitioners' allegations set forth

in paragraphs 10 and 11 of their

Amended Petition for Hearing to Contest Site Location Denial, with prejudice, and for

any other or further relief the Illinois Pollution Control Board deems just

and proper.

10

---

James F. McCluskey

James S. Harkness

Jennifer

L. Friedland

MOMKUS McCLUSKEY, LLC

1001 Warrenville Road, Suite 500

Lisle, I L 60532

(630) 434-0400

(630) 434-0444 FAX

Attorneys for Respondent

Respectfully submitted,

COUNTY BOARD OF KENDALL COUNTY,

ILLINOIS

By:

lsI

James S. Harkness

James

S. Harkness

W:\26_59\4587.080523\Pleadings\lPCB\MotDismissMemo.doc

11

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

BEFORE THE ILLJNOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS, INC.,

)

and KENDALL LAND and CA

TILE, L.L.C.

)

)

Petitioners,

)

)

vs.

)

)

)

COUNTY BOARD OF KENDALL COUNTY,

)

ILLINOIS,

'>

)

Respondent.

)

No. PCB 09-43

(Pollution Control Facility

Siting Appeal)

NOTICE OF FlLJNG

TO:

See Attached Service List

PLEASE

TAKE NOTICE that on March 24, 2009, we filed with the Il1inois Pollution

Control Board, via electronic filing,

PETITIONERS' AMENDED PETITION FOR

HEARING TO CONTEST SITE LOCATION DENIAL in the above entitled matter, which is

attached hereto and herewith served upon you.

Donald J. Moran

Lauren Blair

PEDERSEN

&

HOUPT

161 North Clark Street

Suite 3100

Chicago, lllinois 60601

(312) 641-6888

Attorney No. 07779

497600.\

WASTE MANAGEMENT OF ILLINOIS, INC. and

KENDALL LAND and CA

TILE, L.L.C.

By:

slDonaid

J. Moran

One

of Their Attorneys

EXHIBIT

b

J

A

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS, INC.,

)

and KENDALL LAND AND

CA TILE, LL.C.,

)

)

Petitioners,

)

)

vs.

)

)

)

COUNTY BOARD OF KENDALL COUNTY,

)

ILLINOIS,

)

)

Respondent.

)

No. PCB 09-43

(pollution Control Facility

Siting Appeal)

AMENDED PETITION FOR HEARING

TO CONTEST SITE LOCATION DENIAL

Petitioners Waste Management ofDlinois, Inc. ("WMII") and Kendall Land and Cattle,

L.L.C. ("KLC"), by Pedersen

&

Houpt, their attorneys, respectfully request a hearing to contest

the decision

of the County Board of Kendall County, Illinois ("County Board") denying site

location approval for the proposed Willow Run Recycling and Disposal Facility.

In

support of

this Petition, WMII and KLC state as follows:

L

This Petition is filed pursuant to Section 40. 1 (a)

of the Dlinois Environmental

Protection Act (the

IIAct") (415 ILCS 5/40.1).

2.

On February 5, 2007, WMII and KLC filed a Site Location Application for the

Willow Run Recycling and Disposal Facility with the County Board ("2007 Application").

As

proposed in the 2007 Application, Willow Run was located on a 669-acre site with a 282-acre

waste footprint. Its waste disposal capacity was 35 million tons, and it had a site life

of 35 years.

Over one-third

of the base double composite liner system was to be constructed within the

underlying bedrock aquifer. At

its highest point, Willow Run would be 235 feet above ground

surface.

497576.1

1

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Electronic Filing - Received, Clerk's

Offic~.

March 24, 2009

3.

Public hearings on the 2007 Application were held over a three.week period in

May; 2007. Having been made aware

of the concerns that the County Board and the public had

regarding the proposal, WMII and KLC withdrew the 2007 Application in July, 2007.

4.

On June 3, 2008, WMII and KLC filed a revised Site Location Application for the

Willow Run Recycling and Disposal Facility with the County Board ("2008 Application").

As

proposed in the 2008 Application, Willow Run was substantially reduced in size and scope from

the facility proposed in the 2007 Application.

The site was reduced from 669 to 368 acres, the

waste footprint from 282

to 134 acres, the capacity from 35 to 14.5 years and the high point from

235 to 180 feet. In addition, no part of the double composite liner would be constructed

in

the

bedrock aquifer, but would

be completely out of, and above, the bedrock aquifer. In fact, the

bottom

of the double composite liner and the top of the bedrock aquifer would be separated by a

low permeability soil layer ranging in thickness from 5.2 to 24 feet providing further

environmental protection.

5.

Public hearings

on the 2008 Application were conducted by the County Board and

were held from September

11 to October 1, 2008.

6.

On November 20, 2008, the County Board considered the 2008 Application, and

voted to approve each

of the statutory criteria except criteria (ii) and

(iii).

A true and correct

copy

of the Resolution Denying the Application, No. 08-34, is attached as Exhibit A.

7.

WMII and KLC contest and object to this decision and its denial of criteria (ii)

and (iii) as fundamentally unfair.

8.

On infonnation and belief, County Board members had improper

exparte

communications with third persons both before and after the filing of the Application that

prejudiced

or otherwise influenced their vote to deny.

497576.1

2

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

9.

County Board members considered and relied upon matters outside the record in

voting to deny.

10.

The hearing officer improperly struck the public conunent filed October 28, 2008

by WMII, in violation of Section 39.2(c) of the Act and of Articles 6 and 7 of the Amended and

Restated Kendall County Site Approval Ordinance for Pollution Control Facilities ("Ordinance

No. 08-15").

11.

The hearing officer improperly struck a portion of the written findings of the

County Board's legal counsel, in violation

of Sections 8.4 and 9.2 of Ordinance No. 08-15.

12.

The County Board's denial of criterion (ii) is unsupported by the record and

against the manifest weight

of the evidence.

13.

The County Board's denial of criterion

(iii)

is unsupported by the record, against

the manifest weight of the evidence and contrary to law.

WHEREFORE, WMII and KLC respectfully request that this Board enter an order (1)

setting for hearing this contest

of Resolution No 08-34, and (2) reversing the County Board siting

denial.

Donald

1. Moran

PEDERSEN

&

HOUPT

Attorney for Petitioners

161 N. Clark Street

Suite 3100

Chicago, IL 60601

Telephone: (312) 641-6888

497576.1

Respectfully submitted,

WASTE MANAGEMENT

OF ILLINOIS, INC. and

KENDALL LAND

AND CA TILE, L.L.C.

By

slDonald 1. Moran

One

of Their Attorneys

3

---

Electronic Filing - RecEjiyed, Clerk's qffice, March 24, 2009

EX If I BIT "A l

No.

Q8 -,31.{

A RESOLUTION DENYING THE APPLICA nON OF

KENDALL LAND & CATTlE, LLC AND WASTE MANAGEMENT OF ILLINOIS,INC.

FOR SITING APPROVAL OF A POLLUTION CONTROL FACILITY

LOCATED IN UNINCORPORATED KENDALLCOUNTY,ILLINOIS

WHEREAS, pursuant to

§39.2

of the IIDoois Environmental Protection Act (the

"Acr), 4151lCS

5139.2,

Kendall County, illinois (the "Countyj has the authority to approve

or deny requests for local siting approval for new pollution control facilities, such as

landfills: and

WHEREAS, the General Assembly of the State of Illinois has provided in the

Itlinois Environmental Protection Act, 415 IlCS 5/1,

et seq.

(the "Acf'). that the Illinois

Environmental Protection Agency may not grant a permit for the develqpment or

construction of a

new pollution control facility which is to be located in an unincorporated

area without proof that the location of said facility has been approved by the County Board

of the County in which said new pollution control facility is proposed to be located; and

WHEREAS, Section

39.2

of the Act provides that an applicant for local siting

approval shall submit sufficient details describing the proposed facility to demonstrate

compliance with. and the County Board approval shall be granted only if, the proposed

facility meets the following criteria (the "criteria"):

(i)

the facility is necessary to accommodate the waste needs of the area that it

is

intended to serve;

(ji)

the facility is so designed, located and proposed to be operated that the

public health. safety and welfare will be protected;

(iii)

the

facility is located so as to minimize incompatibility with the character of

the surrounding area and

to

minimize the effect on the value of the

surrounding property;

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

(IV)

the facility Is located outside the boundary of the 1 DO-year flood plain or the

site is flood-proofed;

---

_.-

(v)

the plan of operations for the facility is designed to minimize the danger to

the surrounding area from fire, spills or other operational accidents;

(vQ

the

traffic patterns to and from the facility are so designed as to minimize the

impact on existing traffIC flows;

(vii) if the facility will

be

treating, storing, or disposing of hazardous waste,

an emergency response plan exists for

the

facility which includes

notification, containment and excavation procedures to be used in case of an

accidental release;

(viii)

if

the faci lity is to be located in a county where the county board has adopted

a solid waste management plan consistent with the planning requirements of

the Local Sofid Waste Disposal Act or the Solid Waste Planning and

Recycling Act. the facility is consistent with that plan; for purposes of this

criterion (viii), the "solid waste management plan" means the plan that is in

effect as of the date the application for siting approval is filed; and

(ix)

if the facility will be located within a regulated recharge area, any

applicable requirements specified by the [Pollution Control] Board for such

areas have been mat; and

WHEREAS, the County Board may also consider as evidence the previous

operating experience and past record of convictions or admissions of violations of the

applicant

(and any subsidiary or parent corporation) in the field of solid waste management

when considering criteria (Ii) and (v) under

§39.2

of the Act; and

WHEREAS, in conjunction with the Act, the Kendall County SHe Approval Ordinance

For Pollution Control Factlities, as amended (the "Siting Ordinance''). establishes certain

rules

and regulations relating to the fann, content, fees, and filing procedures for

.2

.....

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

applications and other matters relating to the approval of sites for the location of New

Pollution Control Facilities in the unincorporated areas of the County; and

WHEREAS, on June 3, 2008, Kendall land & Cattle, LLC and Waste Management

of Illinois,

Inc. (collectively the -ApprJCantj filed with the County Board an application for

site

location approval for the Willow Run Recycling and Disposal Facility in unincorporated

Kendall County (the -Application,,), which Appr.cation consists of nine (9) volumes of

reports

and supporting data; and

WHEREAS, the County Board conducted public hearings on the Application on

September 11, 12, 13, 15, 16, 17,18,22,23,24,25,29 and October 1, 2008, and the

report of proceedings (transcripts) contains the testimony of each witness, the oral

arguments of

and cross-examination by the attorneys and participants and oral comments

by citizens; and

WHEREAS, throughout the proceedings, comments and pleadings were filed

by

citizens, participants and parties, including but not limited to: (1) the Recommendation

dated November 5, 2008 submitted by Mr. Michael S. Blazer, counsel to the County (the

"Blazer Recommendation,,), and (2) the proposed Findings dated November 11, 2008

submitted by Hearing Officer

Patrick Kinnally

(the

-Kinnally Recommendation-); and

WHEREAS, the Siting Ordinance and Act require the County Board to determine

compliance or non-compliance

with the criteria and the County Board approves or denies a

requested site location, which determination by the County Board may include conditions

as permitted by the Act, and

WHEREAS, the Act requires that the County Board take final action on the

Application within

180 days from the date of its filing; and

WHEREAS, the County Board undertook all the necessary and legal steps required

to review and consider the Application and to develop a written decision consistent with

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

. .

Electronic Filing - Received, Clerk's Office, March 24, 2009

the requirements

of

§39.2 of the Act; and

WHEREAS,

the County Board has accepted and considered all written

comments received or postmarked within

30

days after the date of the last public hearing

held in this matter: and

WHEREAS,

the County Board has reviewed and considered the Blazer and Kinnally

Recommendations; and

WHEREAS,

the County Board has reviewed the Application in light of the

criteria established for siting new pollution control facilities in §39.2 of the Act and the SIting

Ordinance; and

WHEREAS,

having reviewed the hearing record in accordance with the rulings of

the Hearing Officer, the County Board finds that

the

application process was fundamentally

fair and efficient and accessible to the County's citizens and the public generally; and

WHEREAS,

after review of the AppRcation, all relevant testimony, all exhibits, all

public comments, the record made herein in its entirety and, after further consideration of

all relevant and applicable factors and matters, the County Board finds that it has

jurisdiction to rule on the Application of the Applicant for the Willow Run Recycling

and Disposal Facitity based upon the Applicant's proper notification as provided by the Act;

and

WHEREAS,

for the reasons set forth in the Kinnally Recommendation, the County

Board finds thatthe Applicant has met

its

burden with respect to siting criteria

1, 4, 5, 6, 7,

8

and

9;

and

WHEREAS, for

the reasons set forth in the Kin nany Recommendation, the County

Board finds that the Applicant has failed to meet its burden with respect to criteria

2

and

3;

and

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

. ,

Electronic Filing - Received, Clerk's Office, March 24,2009

NOW, THEREFORE, BE IT RESOLVED by the Kendall County Board as follows:

SECTION

1.

Recitals.

The facts and statements contained in the preambles to

this Resolution are found to be true and correct and are hereby adopted as part of this

Resolution.

SECTION

2.

Decision.

The County Board denies the Application of Kendall

Land &

Cattle,

LtC and Waste Management of Illinois, Inc. for failUre to meet meria 2 and

3.

SECTION

3.

Findings of Fact.

The County Board adopts the findings of fact and

recommendations

set

forth in the Kinnally Recommendation.

SEC1"ION

4.

Severability. If any section, subsection, sentence, clause, phrase or

portion of this Resolution is for any reason held invafld or unconstitutional by any court of

competent jurisdiction, such portion shall be deemed a separate, distinct, and independent

provision. and such holding shall not affect the varldity of

the

remaining portions of this

Resolution.

SECTION

5.

Prior Resolutions. All prior Ordinances and Resolutions in conflict or

inconsistent herewith are hereby expressly repealed only to the extent of such conflict

ADOPTED and APPROVED by the KENDALL COUNTY BOARD on this

20

th

day of November, 2008

Co

Board Chairman

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

. ,

Electronic Filing - Received, Clerk's Office, March 24, 2009

County Clerk

---

Electronic Filing - Received, Clerk's Office, March 24, 2009

CERTIFICATE OF SERVICE

I, Lauren Blair, an attorney, on oath certify that I caused to be served the foregoing,

PETITIONERS' AMENDED PETITION FOR HEARINGTO CONTEST SITE LOCATION

DENIAL to be served upon the following parties listed below electronically on this 24th day of

March 2009.

James F. McCluskey

James S. Harkness

Momkus McCluskey, LLC

1001 Warrenville Road, Suite 500

Lisle, IL 60532

E-mail: jfinccluskey@momlaw.com

jharkness@momlaw.com

EricC. Weis

Kendall County State's Attorney

807 West John Street

Yorkville,

IL 60560

E-mail: eweis@co.kendall.il.us

Charles Helsten

HInshaw

& Culbertson

100 Park Ave.

P.O.

Box 1389

Rockford, IL 61105-1389

chelsten@hinshawlaw.com

497600.1

Bradley P. Halloran

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

E-mail: hallorab@ipcb.state.il.us

George Mueller

Mueller Anderson,

P.C.

609 E. Etna Rd.

Ottawa, IL 61350

george@mue]]eranderson.com

Daniel J. Kramer

Law Office

of Daniel J. Kramer

1107 S. Bridge St.

Yorkville,

IL 60560

dkramer@dankramerlaw.com

slDonald J. Moran

Donald J. Moran

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

SlATE

OF ILLINOIS

COUNTY OF KENDALL

IN THE MATTER OF

)

: §

)

APPLICA n'ON Of WASTE MANAGEMENT OF ILLINOIS INC. AND KENDALL LAND

AND CATTLE LlC FOR SITE LOCATION FOR A NEW P-OLLUTION CONTROL

FACILITY

ORDER

On October28,

2008,

the applicant, Waste Management of Illinois, hic. and Kendall

Land and Cattle, L.L,C., (collectively referred-to as

"WMn submitted a letter to the Kendall

County Clerk

(-Clerkj.

Attached_to it was a "Field ResuHs Summary" with exhibits A and

B ("the

submissionj. lhis information was filed for consideration by the Hearing Officer

and the County Board ("Board-). 1

The hearing In connection with WMl's landfill siting application ended on October

1.2008.

On October 31-.2008,- Grundy County (uGrundy"), a participant. filed a Motion to

Strike the submission ofWMI. The Village of Minooka (-Minooka) filed a simiiar pleading.2

Grundy's motion states several reasons. .First,

it

says WMt's submission is not .public

comment".

NeXt, it argues the submission violates the Kendall County Ordinance

I

~IiIainariIy,aI1IioadI

DO put!cipIni

bas raised il.1s !he

poweI"

of~

bc8rin&

oftioa-Io

rule 011 poot-

bcaUI, motioas. Pahlps, ic

micbl

be oraucd!hl

poSt.MariDg uroIions.wete IIOI.COIIIemplaled

by lilt

OI'dinaDce's

dnftcn.

The participIuIs obviously

IhiDk

c4bcrwise. Jmplicil

ill

\be ordinauoe

is

du2 authori!y

orlbo

hearinB offi.u to be responSible for nrIing on

aD

CODICsted

issues.

as web as. maJdng decisionS c:onccming !he manner .. which /he heariag is

~duckd

(Oni. Sees. 1.2

(a)(b». Moreover,

since \be liearingofliccr has the authorily to oIIow the illlI"Oducrio. ofbto-liled cWdence, (Old.

SCc.

1.1(2)(j) oecessarily,because /he fae!

tbat

evidence is '1ale.liJed", !lie hearing oOictl"

migbl ha...:

10 eorrsider.an applicalion like WMJ's submission after the hearing adjourned. This

is

exactly whOl oC<umd .....

. 2 .MinOob's molica, IItboacbsomewbal dilfcredt. essentially requeSts d.u .... reIicf'. Onmdy, thaI is,

sriina

ofWMI's subrnissioa. As

tollodlol'

these

motions,

WMI filed

I

respoaSe,

mel

Gnmdy 8Dd

MiDooIca

fiIcd scpanIC replies. I haw:

rmewcd oD

Ih_ briefs

ill

reachiDg !be decision mode

in !IUs

order. I

b."" not corWdcred the reply filed

by Onmdy fur Ibc reaSOU>

indicated

in this

Order. Ia

~cw

of\be findings or

this

Order, I

do

Dol

iorcod

to foshioq I scpaRte

order

01>

MioooIca's motioa .ince I

find

it is

RIIdcmI

moot.

Page I of 5

EXHIBIT

---

(Amenc;fed and Restated Kendall County Site Approval Ordinance for Pollution Control

Facilities No. 08-15, (April 15, 2008) Sec;. 5.5; 6.1; 6.4) ("the

ordinancej. since it is

untimely. Finally, Grundy, asserts WMl's filing is an attempt to cure the inadequate site

application

ofWMI.

The Ordinance says the Hearing Officer is empowered to make decisions consistent

with the concept offundamental fairness. (Ord. Sec.7.1{2}(b» Additionally, the Hearing

Officer has the discretion

to allow introduction of lata.-filed evidence, whether written or

testimonial, provided "good cause" is shown as to why it is overdue (Ord. 7.1 (2}(j). The

ordinance states" all reports, studies, exhibits or other evidence shall be submitted" 7

calendar days prior

to the hearing COrd. Sec.

5.5

(1». Finally. the ordinance says, that as

to the rebuttal portion of any participanfs case, evidence may be filed one day before the

day of the publiC hearing at which it is offered (Ord. Sec. 7.1 (2)(J).

The letter from WMI's counsel to the Clerk, dated October 28, 2008, does not state

;it

is .public comment". It doesn't say what it is. Another letter from WMl's counsel dated

October 31,

2008,

to the Clerk which submits ASTM Designation

05084-08,

states it is

being filed as "public comment". No objection has been made to that filing.

The October

28, 2008,

submission states it is being filed in response to inquires

made by. the hearing officer and the Board during the rebuttal portion of WMl's case.

Clearly,

it is evidence, and I so find it to be.

The question then becomes whether

it

was filed in apt time. It was not. It was not

filed seven days prior to the hearing or one day prior to the day of the public hearing which

it could have been offered, namely. the rebuttal portion ofWMI's case. The hearing closed

on October 1,

2008.

Page 2 of 5

---

The next issue is whether WMI has shown "good cause" for the late filed evidence.

"Good cause" is not defined in the ordinance. Maybe it should be. The ordinance requires

me to follow Illinois law (Ord. Sec. 7.1 (2) (b». The most recent exposition from the Illinois

Supreme Court on what constitutes -good cause- is Vision Point of Sale Inc. v. Haas

(2007)

226 III. 2d 334 ("Visionj

In Vision, our Supreme Court determined what constituted "good causeD to remedy

an unintentional non-compliance with one of its procedural rules, namely an extension of

time (Supreme Court Rule 183). It held, citing Bright v. Dicke (1995) 166111. 2d 204) that

a paramount concern in permitting a late filing in connection with a Request to Admit

(Supreme Court Rule 216) is the reason given for the failure to adhere to the rule. The

.Courtwent on

to

hold that in ascertaining whether "good cause- exists, the decision maker

may consider various events. These include such matters as: attomey neglect, mistake.

inadvertence, as well as, other behavior related to the causes for the party's original non-

. compliance. Basically, the Court concluded

the determination of "good cause" is an issue

of fact, which is a discretionary decision of the decision maker.

Although, WMI does not specifically invoke the Ordinance's "good cause" exCeption,

in its October 28;

2008,

submission, it seems fair to ascribe to WMI such an intent. I do.

Indeed, the letter clearly indicates that-WMI is trying to explain why

it did not undertake the

investigation

of certain unconsolidated soils in a portion of the proposed landfill footprint.

Hence, WMl's submission should be considered under the "good cause" exception.

WMI,

in reply to Grundy's motion, says it has the right to submit public comment.

(Land and Lakes Co. V. Illinois Pollution Control Board (3d Dist.

2000)

319 III. App. 3d

("Land and Lakes

ft

). I agree. The problem is WMI's submission is not public comment, but

Page 3 of 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

late-filed evidence.

WMl's reliance on Land and lakes is mispraced. The Appellate Court held the Will

County Board,

as the siting authority. courd have treated the exhibits filed in that

proceeding as untimely, consistent with its siting ordinance. It did

not do so. Here, as

indicated previously,

WMl's submission is not public comment but late-fired evidence.

The WMI submission contains various tests conducted by it after the hearing closed.

These stud ies were performed on a part

of the

facility

footprint that had not been examined

and included as part ofWMI's application. WMI offers no explanation why the filing of this

untimely evidence could not have been investigated and undertaken originally. It crearly

courd, have. Maybe

it was an oversight. The point is, WMI' had the ability to perform these

studies

as part of it's application and chose not to do so.

One ofthe underlying tenets ofthe ordinance. of which I am charged to observe is

that any decision shall be in accord with the concept of fundamental fairness (Ord. Sec.

7.1(2)(b». This applies

to all participants. The Ordinance provides every participant has

the guarantee

of cross-examination (Ord. Sec. 7.1(2)(i». It is an important right.

Thi~

hearing is a testament to that fact. Here, the admission of WMl's submission would

foreclose

the rights of every participant, as well as the Board, from being able to test, by

cross-examination.

the testimony of the persons who authored the reports sought to be

admitted. That is unfair.

For the reasons stated, I find that WMI has failed to satiSfy the "good cause"

exception for late filing

of evidence (Ord. Sec. 7. 1 (2)(j».

Grundy County's motion

to strike the October 28, 2008, letter and attachments of

the applicant, Waste Management of Illinois, Inc., is granted.

Page 4 of 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Patrick M. Kinnally, Hearing Officer

Patrick

M. Kinnally. Hearing Officer

KINNALL Y FLAHERTY

KRENTZ & LORAN, P.C.

2114 Deerpath Road

Aurora. Illinois 60506

Telephone:

630/907-0909

Facsimile: 630/907-0913

pkinnally@kfkllaw.com

Page 5 of 5

---

PEDERSENhlIoUPT

October 28, 2008

Ms. Rennetta Mickelson

Kendall County Clerk

III Fox Street

Yorkville,

IL

60560

Re:

Willow Run Site Location Application

Waste Management

of Illinois, Inc. Public Comment

Dear Ms. Mickelson:

aTATE OF ILLINOIS

coum

OE

KENDALL

- FILED -

OCT 282008

1":2. ___ -H:- I;/.

J,

COIINIY. (lERK

~~

K8ft)AU.

COUNfY

Donald J. Moran

Attorney at Law

(312) 261-2149

Fax (312) 261-1149

dmoran@pedersenhoupt.com

At the last night of the siting hearings on October 1, and fo]]owing up on questions asked by

various County Board members, Hearing Officer Patrick

M.

Kinnally asked Joan Underwood

why more wens were not put into the unconsolidated soils without going into the bedrock. As

stated by Mr. KinnaUy, information from such wells that showed no water would be the most

convincing evidence that the unconsolidated soils beneath the double composite liner are a

confining unit. (Tr. at 2328 - 2329.)

In response to the inquiries

ofthe County Board and Mr. Kinnally, five shallow water table

piezometers (weJls) were constructed in the unconsolidated soils across the landfill footprint.

They were installed entirely within the unconsolidated soils, and evaluated whether the soils

produced water. Installed on October 17, these wells contained no water after three days.

The results from these wel1s are presented on the enclosed attachments: Field Results Summary,

Shal10w Water Table Piezometer (Well) Location Map. Sha]]ow Water Table Piezometer (We]])

Water Level Measurements, Fina]

Soil Boring Logs for B-225, B-226, B-227, B-228 and B-229,

and IEPA WeJl Completion Reports for SP-225, SP-226, SP-227, SP-228 and SP-229.

~~---------

Donald J '1ran

DJM:vlk

Enclosures

cc:

Patrick M. Kinnal1y

Michael Blazer

Counsel

of Record

EXHIBIT

489.591.1

.

::JUlte

;i100 I 161 North Clark Street I Chlcago,lL 60601-3242 I pedersenhoup!.com I 3126416888 I

Fa~

312 6416895

" Pttltuitlll C'fp.,.1i ••

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

PEDER8ENMIOUPT

October 28, 2008

Ms. Rennetta Mickelson

Kendall County Clerk

111 Fox Street

Yorkville,

JL

60560

Re:

Willow Run Site Location Application

Waste Management

of Illinois, Inc. Public Comment

Dear Ms. Mickelson:

STAtE OF ILLINOIS

coum OF. KEIIDAlL

- FILED -

OCT 282008

/2..~

__

'If:- I

JJ.I

~

COUNIY 01RK

~~

K£NI)ALL COUNTY

Donald J. Moran

Attorney at Law

(312) 261-2149

Fax (312) 261-1149

dmoran@pedersenhoupt.com

At the last night of the siting hearings on October I, and following up on questions asked by

various County Board members, Hearing Officer Patrick M. Kinnally asked Joan Underwood

why more wells were not put into the unconsolidated soils without going into the bedrock. As

stated

by Mr. Kinnally, information from such wells that showed no water would be the most

convincing evidence that the unconsolidated soils beneath the double composite liner are a

confining unit. (Tr. at 2328

- 2329.)

In

response to the inquiries of the County Board and Mr. Kinnally, five shallow water table

piezometers (wells) were constructed in the unconsolidated soils across the landfill footprint.

They were installed entirely within the unconsolidated soils, and evaluated whether the soils

produced water. Installed on

October 17, these wells contained no water after three days.

The results from these wells are presented on the enclosed attachments: Field Results Summary,

Shallow Water TabJe Piezometer (We1l) Location Map, ShaJJow Water Table Piezometer (Well)

Water Level Measurements, Final Soil Boring Logs for B-225, B-226, B-227, B-228 and B-229,

and

IEPA Well Completion Reports for SP-225, SP-226, SP-227, SP-228

ana SP-229.

~~----------

Donald J '1ran

DJM:vlk

Enclosures

cc:

Patrick

M.

Kinnally

Michael Blazer

Counsel

of Record

EXHIBIT

C

489.59lJ

.

~Ulte;;100

1161 North Clark Street 1 Chlcago,IL60601-3242 I pedersenhoupt.com I 3126416888 I Fax3126416895

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

FIELD RESULTS SUMMARY

---

SITE LOCATION APPLICATION

WILLOW RUN RDF

KENDALL COUNTY, ILLINOIS

Site Location Application

Willow

Run RDF

SHALLOW WATER TABLE PIEZOMETER CONSTRUCTION

Shallow water table piezometers ("piezometers

w

or "wells") were constructed in October 2008

within the landfill footprint

of Willow Run.

The well locations are shown on Figure 1

(Attachment A). These piezometers were installed

to investigate whether the fine-grained

unconsolidated soils produce water,

and to intersect the water table. Installation of these wells

proceeded

as follows:

1.

The boring log obtained at each location was reviewed for evidence of

the water table

location,

and water table information presented on Figure G-4-1 in Appendix G of the Site

Location Application was reviewed. Well depths

to intersect the water table in the fine-

grained unconsolidated soils were

then chosen. Final soil boring logs are provided in

Attachment C.

2.

Shallow water table wells were constructed solely within the fine-grained unconsolidated

soils.

3.

Water levels were measured periodically and are provided in Attachment

B. Piezometer

construction information is provided

in Attachment D.

RESULTS

The shallow water table wells contained no water after 3 days. The shallow water table wells

could not be developed or slug tested because there was

no water. Slug testing cannot be

conducted in dry wells (Bouwer, 1989). In addition, water should not be added to these water

table wells

to conduct slug testing because erroneous results will occur because of changing the

effective screen length from adding water (Butler, 1998). The shallow water table well data

confirmed that the unconsolidated soils have low hydraulic conductivity, consistent with the

infonnation obtained during the site investigation, including the soil descriptions and

classifications, geotechnical laboratory testing, and aquifer testing. This data demonstrates the

low permeability of the unconsolidated soils and its condition as a confining unit.

REFERENCES:

Bouwer, H., 1989. The Bouwer and Rice Slug Test - an Update, Groundwater, v.27, No.3,

pp. 304-309.

Butler,

J.J.,

1998, The Design, Performance, and Analysis of Slug Tests: Boca Raton, CRC

Press LLC, Lewis Publishers, 252

p.

1

October 2008

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

ATTACHMENT A

SHALLOW WATER

TABLE PIEZOMETER (WELL) LOCATION MAP

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

III

0

1:

*"q

q

a

c..

,."

~

!'

"I

I

'I'

, '

'g:

fi

-

~'

~

;It

Ie

m

~

--'

~

~

8

3:

~

Ul

I

;x;

"f:.

i

..

r

0

. -JE

fj!JE

~

,;t~JE

~tEr::~

... 1=

r"'~'

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iqe~-

h:."O

~.

I

'I

Ii

'!

0

I

;!:

M

It

I'l

...

§

:;0,

---

ATTACHMENT B

SHALLOW WATER TABLE PIEZOMETER (WELL)

WATER LEVEL MEASUREMENTS

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

SITE LOCATION APPLICATION

WILLOW RUN RDF

KENDALL COUNTY, ILLINOIS

SHALLOW WATER TABLE PIEZOMETERS (WELLS)

Water Level Measurements

Measurement Time

SP.225

SP.226

SP.227

SP.228

10/17/200810:00

a.m.

Dry

10/17/200812:00

p.m.

Dry

10/17/20082:00

p.m.

Dry

Dry

Dry

10/17/20083:00

p.m.

Dry

Dry

Drv

Dry

10118120087:30 a.m.

Dry

Dry

Dry

Dry

10/20/200810:00

a.m.

Dry

Dry

Dry

Dry

Shallow water table well borehole measurements

SP-225

=

7.0 feet

SP-226

=

7.5 feet

SP-227;:: 7.5 feet

SP-228

=

7.0 feet

SP-229 = 7.0 feet

L_'~B_~

__ tO'l7 __

doo

Site Location ApptlcalJon

Wlnow Run RDF

SP.229

Dry

Dry

Dry

.

Dry

October 2008

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

ATTACHMENT C

FINAL SOIL BORING LOGS

---

I

BORING NO.

FINAL SOIL BORING LOG

8 .. 225

SITE; WIll9\! BY!! RDF

SIlEI: _____ _

I'HYSICAL

8El1lNG:

GIIclII

ute

flaln

UlGBY:

M. Zf1IIIIS

PROJECT NO.

102908

WATER

UNa

READlNtlS

WATER

HOLE

CASIIIG

Mli

DEPTH

DEPTH

DEPTH

--------- -----

--------- -----

SHEET

_1

OF_1_

GROUND llURFloCE B.EV:

588.35

LOCH. COOROINATft

HCRlHtIG:

t75OO00

FlRJ.I/DIW.ER: _

TI1IIIIflIeId\1pdt!nl!!!und&ervlcHlM.I..!IcfIf*-==-_________ _

IfAIn'IG:

969850

DRUlNGMEmJD:

Geoprob!wD 1.8-111.. by Sit

IongGaap<obe~

r;cI

S8IIIpIer.

5

15

20

--- ----- ---

M1iImE6TNlTEO: 10(17/08

DAlEIIlME COMPl.EJa):

10111108

~~

--------

WEU.IN$JAI.LA'lIOIt:

~NA.::L-

__ _

SOIl 0ESCRIPTl0N AND

DRIlLING COMMENTS

pI8sIicIy.

oohesive;

I~.

willi

detk Q!1IY

(2.5Y

1Ilcus(rine.

As

aIJo'.Ie

rlOOl 3.0 to 5.0

feet.

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

FINAL

SOIL BORING LOG

SITE!

Wj!ow

Run RDF

PROJECTNO. 102901

sm:1: _____ _

WAtERUM!1. RIWlIN08

WAtER

HOLE!

CMIHG.

DEP1H

DEPTH

DEPTH

FlRMIIlRIILER:

LOG

8'f. .

M.

ZI!!mr

TnlIIIhIeldu.r."'ow.r ......... LIIIdzIa=.k

----------

-----------

_______ _

IlIU.JJNG

METHOD:

.rong~~loI

GeOpiob!.

1.I.frL'" bY

itt

---'-

AIWIIlONWENTDATE:

---

--

_____

---

_

113.....,..

~~

--------

5

f>.:5

above

from

6.0

to

10.0 feel

15:.

20

BORIN<) NO.

st£ET

-1..oF_1_

GROUNO SVlV'IICE BEY:

-IS

lOCH. <:OOROlNAlSIt

~

1750235

fASlIIG:

970810

OI\TellMESTAfIta):

101t7108

DA'I1YIIlIE

c:ot.1PlEttiD:

10117108

WaJ.,INSTAIlATDt

--!.!~

__ _

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

FINAL SOIL BORING LOG

SITE: Wilow RLWI RDF

PROJECT NO. 102908

SIT'EI: _____ _

WATER I.EVB.RENJIIGS

WAlUI

ItClE

CASING

DATE

DEPTH

DEP'IH

DEPn-t

LOG

~

BY;

SET1ING:

M, Zhg

GtIIdII LIU

PlaIn

----

---- --

--

FIRM/DRU.ER: Transl!1tId

!J!!cI!!BmundSwvf-.IM. LeJddIIC=-

----

_______

---------

_

DRILLING

MEllIOD: GIopmb! with

1'"'-

cia. br

SIt

----

AllANllCNlENTIlflTE:

--------

____ _

~~

-----

5

AI$

eIxM: from

1.D III

10.0

feet.

i

I

15

g

i

I

J

f

20

8ORINGNO.

B.227

stI:Er

J.. OF_1_

GROUND 8UAl'ACE aev,

588.93

LOCAL COORDlNAlEII:

NORTHWO:

1750720

E'ASlING:

171800

lIfI'I'!II1IoII!8TAft1'1!O:

10117/08

ElATIlfI'IME CClMPI..lTEO:

10111101

WEU.INSTAUATDI:.

-"'NA."'--__ _

---

'~

I

I

J

f

BORING NO.

sm:: mrow

Rug ROf

PROJeCT NO.

f02908

SHEET _1 OF_1_

SflEI: _____ _

1¥AlER

L!l/S.IIE'J\DIHGlI

1¥AlER

HOLE

CASING

~n;

oeP1H

DEPTH

OEPDI

GROUNO SURFACe B.I:¥.

!!81,79

PHYSICAl

SErnNIJ:

GIIcIIIII.aIGe PfaIt1

--------

l.OCJ\I..COOftDtNATES:

LOOBY':

M.ZI!anp

---------

~

1749700

~

TransNeldU!!<l!!!!rvundServloHllLL!lddak=-______ _

fAlmNO:

971900

tlRII.IHl METHOO:

Gecpn!I!!!

will 1.8-fn.

ella. by

5 II

--------

OATEmIIfE

fTAA'Il!1k

1011710'

~DAT!:

___ _

IMTElTlWE COIoII'I.ETEQ:

10117108

~~I

____ _

WELLINSTAUAlIOIt

..,gNA:.-__ _

SOL~PTIONAND

DRlUMl COMMENTS

,5

At;

ebow from

3.0 10 5.0

feel.

10

+---I~-t--.

15

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

fi

I

i

I

J

FINAL SOIL BORING LOG

SITE: Wliow Run RDF

PROJECT NO.

102908

SIlU: _____ _

WATER lEVEL RIlADINGII

WA'ISt

ID.E

CAS1NG

DATE

DEPTH

OI!PTlf

0EP'tH

P1RM/1lR1ll.ER:

PtIYSICAI.

LOOBY:

S&TlIIG:

M.Zt!p!a

T_hlellfUnderQr!!!mds.rvtced1.

GIIocIII .....

PfaIn

Laldzl*=-

-------

---------

_______ _

DRum IoE1'HOO:

Geopn!I!!

wfth 1.11-ln.

ilia. by

5 ft

long

Geoprobe Macn>.cor.1IOII

sampler.

--------

~OATe:

____ _

~~

------

j

20

BOmNGNO.

B-229

SHEET _i_OF

_1_

GROUND SURFACE

aev:

584..38

UlCAI.

COORDINATES:

NORTItNO<

17492!!$

EA$_

871265

O!\TE/IlME$TNnED:

10117108

DAn:JfIME

COtoI'I.£TEO;

10117108

WBLINSTAU.A1IOIt

.....,.:NA.:..:... __ _

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

ATTACHMENT D

IEPA WELL COMPLETION REPORTS

---

~

':!l

~

;

Iii

'"

Dllnofs Environmental Protection Agency

Monitoring Well Completion Report

SITE#: _____________ COUNTY: Kendan

SP-225

SITE NAME:

WJ!ow Roo ROE

STATE

PLANECOORDINATE: N 1750000

e 969850

(OIl

LATTTUOE _" _' ___ "

LONGrruoe: ____ _

~BY:

_____________________ ___

ORl.llOO CONTRACTtlR: Transhield Underground Se!yiees. Inc

COHSULlING FIRM:

-!:Em1h~l..,;1i:.:lied1~.~lnc.=.....

________ _

DRII.I..HGME1HOD:4

;:...::114=II'I.=.,:HSA=-'---'-____________ _

lOGGEOS'I: M. ZhanqIB.J.I.BRoy

AEPORTRlRM

00f,ftETEDBY:

B.J.I.BRoy

ANNUlAR SPACE DETAilS

TYPE OF UPPffi SEAlANT;

INSTALlATION

MEIKlO:

SEf11NG

TIME:

24

hours (minimum)

TYPE

OF

ANNULAR SfAlANT:

318 In, medftJm m2ntonite

~ps

I~ALLATION

METHOD:

Gravity

SEITINGTIIAE:

24

hours (minimum)

TYPE OF BENTONITE SEAL- GRANUlAR

SlURRY

1

CHIPS

I

INSTALLATION METHOD:

GravItv

SETTING TIME:

24

hours {minimum]

•

TYPEOFFlNESAN>PACK: NlA

GRAIN SIZE:

tilA

(8II!l/E

8IZE)

INSTALlATION lIE.Tt«)I):

TYPE OF SAND PACK:

Slllcaaand

GRAW4SIZE:

1().22

fSII!W

IIIZE)

INSTAllATION MElllOO:

TYPE OF BI\.CKFllMATERIAL:

Hl6

(II' APPI..ICABlEJ

IN~ALlATION

METHOD:

NlA

Well CONSTRUCTION

MATERIAlS

jCIRClE ONE)

PROTECTIVE CASING

IiIS30t

883111

P"I1'£

PIIC

OlHEFt

: RISER PlPt: ABOVE W.T.

Is~

SS318

PlFE

ce&:J

O'IHER:

RISER PIPE BELOWW.T,

$S3O.4

$$316

PTFE

~.OTHER:

SCREEN

SS304

SS316

PlFE

~OTHER:

ILLREGISTRATIOH#: ___________ _

DR1lLER:

M. l8Idzlak

GEOC~~:~M~,~~~oo~

______________ ___

DRIllING FWIOS(TVPE):

...J.lNoi¥n!.!le~

_______ _

DATESTARTEO;

10117108

OATEFINISHED:

10120/08

DATE:

10f.21108

REVAnONS DEPTHS

(.01

tt)

(MSL)*

(6GS)

591,3

2.9

lOP OFPROTECI'IVE CASING

590.9

2,§

TOP OF RISER PIPE

588.4

0,0

GROUND SURFACE

588,4

(t,0

TOP OF UPPER SE'AI.ANT

588.4

Q,O

TOP OF

ANNIJI.M

SEAlANT

Dry

WATER I.E\IB..

CA/'TBI ro.tPl.EOON)

~TE:

588.4

0,0

TOP OF SEAl..

582.9

5,5

lOPOF fI\IE SAND

582,9

5,5

lOP OF SAND PACK

582.6

5,8

TOP OF SCREEN

581,6

6.6

BOTItIM OF SCREEN

581.6

6.6

BOTl'OM OF WElL

581.4

7.0

BOT"IUMOF SMD PACK

581.4

7.0

~OFIlOREHOlE

" REFERENCEDTOA NATlONI\I. GEOOE11C

VEFmCAI.

DAllA.l

CASING MEASUREMENTS

REMARKS: Schedule 40 PVC. Sand manufacturer - RW Sidley Silea

Sand No.5.

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

illinois Environmental Protection Agency

Monitoring Well Completion Report

SITE~

________________________ __

COUNTY: Kendall

Well.:

SP-226

SfTENAME:

WI!ow Run RDF

PlANECOORDINATE: N 1750235

E

970810

(01)

LA1lTUDE __ • _' ___ • lONGfTUDE

~~-----------------------------

DRIllING CONTRACTOR: Transhfeld Underground Services, Inc

~nNG~~E~arth~Tlu~~,~I~~

______________ ___

~~ ~4~1t~~~m~.H~SA~

______________ ___

LOGGED BY:

M.

2'hanQ'B.J. LeRoy

REPORTFORMCOMPlETED BY: B,J, LeRov

ANNUlAR SPACE DETAILS

"I'YPeOFUf'fERSEAlANT': 318

In. medium

bentonite

~~TION~ ~GmMW~~

__________ _

SETl1NG nME:

24 hom; (minimum)

TYPE OF ANNULAR

SEfI1ANT:

318 in. medium

bentonite chips

/NSTAUATlONI\IETHOD:

...:.Grnvity~.w'

'--________ _

SETTING 'f1ME: 24 hours (minimum)

"I'YPe OF sENTONII'\! SEAL. GRANll.AR SLURRY

I

CHIPS

I

~~TION~ ~~~~

__________ _

SETTlNGnME: 24

hotIrs

(minimum)

lYPEOFFlESMDPAa{:.....l

Nf.~'A

_______ _

GRAlNSIZE:

NlA

(S6'ESl2E)

~AUAnONI\IETHOD:,~W.~'A~,

__________ __

T'I'I'E OF SAND

PACK:

--lISI!lca!:l!ll!iUeandillillJ:lI!..-__________ _

;

GRAIN SIZE:

1().20

~

SIZE)

g

/~~nON~

~GmMN~~

__________ _

~

TYPE OF BACKRlJ. MATERW;

NlA

8

~~~~~F~~~~~---

.,

!

t;

~AUATIONME1ltOO:

...J.:Nw;/A:l..-__________ _

WElL CONSTRUCTION

MATERIALS,

ICIRCI.E ONE!

BELOW W.T.

,SS304 85316

PTFE Cf¥!'D OTHER:

I.1..REGlSTRAllONtt. _____________________ _

DRUER: M, Laldziak

GEOLOGIST: ....uMll..' IIIIZhl.llianaWI:L---' ___________ _

~R»~~~~N~o~ne~

______________ ___

DATESTARTED:

10/171Q8

OATEFlNISHED:

10120108

DATE:

10121108

elEVATIONS -DEPTHS

(MSl).

(BGS)

591.7

591.3

588,8

588.8

688.8

588.8

582,8

582.8

582,5

581.5

581.5

581.3

2.9

2.5

0.0

0.0

0.0

Dry

0.0

6.0

6.0

6.3

7.3

7.3

7.5

(.01

it)

TOP OFPROJECI1VE CASING

TOP OF RISER PIPE

GROUND SURFACE

TOP OF UPPERseAl.ANr

TOP OF

ANNUI.AA

SEAlANT

WATER LEVEL

(AFTER

00MPl.ETI0N)

""'TE: __

TOP OF SEAL

TOP OF

FtNe

SAND

TOP OF SAND

PACK

TOP OF SCREEN

IlOTTOM OF SCAEEN

BOTTOM OF WELl

BOTTOM OF SAND PAQ{

581.3

7.5

BOTTOM

OF BOREHOlE

REFERENCeD TO" NIIl1ONAI..oeooETICVER1ICAL

Oo\TUI.t

CASING MEASUREMENTS

REMARKS: Schedule 40 PVC. Sand manufact.ur8r. RW Sidley Silica

Sana

Ro.5.

III

SCREEN SLOT SIZE

"'t!ANI).SlOITED WEU. SCREENS ME UtW;CEPTAII.e

~~-----------------------------------------------------------------------------------------~

---

I

I

I ...

~

!

I

Iii

illinois Environmental Protection Agency

Monitoring Well Completion Report

STE~

__________________ ____

COUNTY: Kendall

SP-221

STE

NAME:

WlIow Run RDF

srATE

RANECOORDINATE: N 1750720

E 971800

(01')

LATn1JDE _" _' ___ " LONGmJDE ____ _

~~:------------------------~---

DRIUJNG CONTRACTOR: TmnsbleJs! Underground Services, Inc

~~NG~~~~~y,~~~,~~~

_____________ __

~~ ~6~1/~~~m~.HSA~~

_____________ ___

LOGGED BY: M. Zhang/B,J. leRoy

REPORTFORMCOMPlETEOBY: B,J. LeRoy

ANNULAR SPACE DETAILS

TYPE OF smFACE SEAl.:

TYPE OF UPPER SEALANT:

INSTAllATION

METHOD:

SETllNG

TIME:

24 hours (mInimum)

TYPE OF ANNUlARSEA/.ANT:

318 In, medium bentonite !{hips

INSTPUATlON

METHOD:

GravItv

SET11NG

TNE:

24 hours (minimum)

TYPEOF8EN'TONITESE'AL- GIWU.AR SLURRY I CHIPS I

IIISTAllATION

~.,

Grav!tv

SET1lNGllME:

24 hours (mlrimuml

TYPE OF FlNESNV PACK: N1a

GRAIN

SIZE:

N1A

(SIaIE SIZE)

INSTAUATION

~

NJA

TYPE OF SAND PACK:

SlIk;isand

GRAIN

SIZE:

10.20

(SEVE SIZE}

INSTAUAllON MElHOD:

GravitY

TYPE OF BACKRLL MA.1ERIAL:

NlA

(If Af>PUCAIIt.E)

INSTAUATlON .METHOD:

Nla

WElL CONSTRUCTION

MATERIALS

(CIRCLE

ONE)

¥

1U..REGIS1RATION

tk

_________________ _

DRILlER:

M. laIdzIak

G~~M~.2h~a~oo~

_____________ __

ORIl..UHGFlUlDS(lYPE):

...J.lN~onWie~

________ _

DAle STARTED:

10N7108

DAlEFlNISHED:

10120108

DATE:

10121ms

ELEVATIONS DEPTHS

(.01 ft)

(MSL)*

(BOO)

589.8

2.9

TOP OF PROlEC11VE CASING

589.4

2.5

TOP OF RISER PIPE

586.9

0,0

GROUND~ACE

586.9

0.2

TOP OF UPPER SEAlANT

586.9

0,0

TOP OF ANNUtARSfAlANT

Drv

WATERlEVB.

(AFTER CC».f'l£JION)

Vl\.TE: __

586.9

0.0

TOP.OFSEPL

580.9

6.0

TOP OF FINE SAND

580.9

TOP OF SAND PACK

580,7

6.3

TOP OF SCREEN

579,6

80TT0M OF SCREEN

579.6

BOTTOM OFWEU.

579.4

BOTTOMOFSANO PAIl<

579.4.

l.S

BOlTOMOFBOREHOLE

REFERENCI!D 10 A NA'IIOIW. GEOIlETlC VERT1CAL 1JAl\lM

i

.~ ~~~~~~~~----------~~

~E

10

~

~~~~~~--~~2.~O~

~

5.0

8.8

BOTTOMOFS

0.01

SCREEN lENGTH

1«

1.0

TOTAL LENGTH OF CASING

9.8

<

SCREEN SLOT SIZE

lb

"'tWI).SLOTT1!D WEU. SCREl:NS ME. \llUlCCEPTA8lE

-~--------------------------------------------------------------------------------------------------~

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Illinois Environmental Protection Agency

Monitoring Well Completion

Report

STEil;

~~~~~N

____________ _

Well

II;

SP-?28

STE NAME: Wilow Run RDF

BOREHOlE II:

B-228

STATE

fLANEOOOROINAlE: N 1749700

E 971900

(or)

LA1TIUOE _. ___ ' ___ • LONGlTUDE_' ___ ' _____ _

$JR\IEYEOBY: __________________ _

DRlLUNG CONTRACTOR: TranshJeld Uns!emmund

Services.

Inc

OON&LTINGR~~ea~®~TI~~~.~loo~.

______________ ___

DRlumG~ ~6~lt~~~~~.H~SA~

______________ __

LOGGED BY:

M.

Zhang/B.J.leBov

REPORT FORM COf.f'lEI'ED BY:

B.J.leROV

ANNUlAR

SPACE DETAILS

INST.AI.lATION

t.ETHOD:

~Grayi!.y=II:L..

_____ _

SEfTlHGTJME:

24 OOunl (mInimum)

TYPE OF ANNlJIAASEAlANT':

318

In. medium

bentonite

Chips

~~.AI.lATIONt.ETHOD:

~~~~

______ _

SETTlNG T!ME:' 24 hours

(minimum)

TYPEOFBENTONIlESEAL- GRANUI.AR SLURRY

I

CHIPS

I

~T.AI.lA~ON~

~G@MW~~

__________ _

SETTING TNE: 24 hours (mlnlmuml

TYPEOFRNE~PAae~m~~U_

___________ _

GRAlNSIZE:

NlA

(SEVESIZE)

~AUAnoNt.ETHOD: ~w.~~~

_______ __

n.L.REGIS1RATION#I: ___________________ _

DRII.1.ER:

M. taldz!ak

GEOlOGIST:

M.

Zhang

~NGRUDS~~~N~on~e~

____________ ___

DATESTARlED:

1011710S

DATEFHSHEO;

101201Q8

DATE:

10121

lOS

ELEVATIONS DEPlliS

(MSLr ' (BOO)

584.7

2,9

§84.3

2,5

581&

0'.2

581,8

0,0

581,8

0.0

Drv

581.8

0.0

576.3

5,§

576.3

5.5

(.01 tt)

TOP OF PROTECTIVE CASING

TOP OF RISER PIPE

GROUND SURFACE

TOP OF lWERSEALANT

TOP OF ANNUlAR SEALANT

WATERI.EVB..

~

CC6t'I..EOON}

TOP OF SEAL

TOP OF fINE SAND

TOP OF SAND PACK

TOP OF SCREEN

§

TYPE OF SAND PAC<:

--"'SiIica=~s~and!..!:L.

_____ _

S

GRAIN SI2E:

10.20

(SEVE SIZE)

576.0

5.8

j

~AUATION~ ~GmMN~~

______ _

NlA.

(IF

APPUCABLE)

WEll CONSTlRUCTJON

MATERIALS

(CIRCLE ONE)

PROTECllVE CASING

SS304

5531.

PfRi

RISER PIPE ABOVE W.T.

SS304

$$31.

PfRi

RISER PIPE BELOW W.T.

SS304 85310 PI"fEO

SCREEN

SS304

8831.

I"TFE

PIIC

OTI£R:

C!ZD

0J10ER:

~

0l'HER:

~OTI£R:

REMARKS: Schedule 40 PVC. Sand mal'lllfacturw - RW SkIIey SIIca

Sand No.5.

575.0

6.6

BOrTOM

OF SCREEN

575.0

§,S

BOTTOM OFWEll

574,8

7.0

BOTTOM OF SAND PACK

!:!Z~,8

7.0

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• REFER9ICED TO A HAlIOHAl GEOIlETIC VERTICAl DArut.I

~<

Ib

~L-

______________________ ------__ --------------

"'IfIIHl>SlOlTEOWEU.SCREENSAREUNACCEPTAilLE

__

~~~~~~--~--~--

____

~

---

..

Ullnols Environmental

Protection

Agency

Monitoring Well Completion Report

Sf'I"e#: _____________

COUNTY: Kanda"

SP.229

srTENAME: Wlnow Run BOF

STATE

BOREHOlE.:

9-229

f'lANECOOROINAlE: N

1149295

E 971265

(or)

LAlTJUDE __ • -.-! ___ • LONGIl\IOE __ " __ • ___ _

~~---------------------

DRIU.ING

CONTRACTOR: Transhfefd Vndewroon<! Sery!ces. Inc

~nNG~~~E~mfu~T<~~~~Im;~

________ __

DRlIJ.tIG METHOD:

::!.4..ll1":;:;~~1n!:.J.

H~SA=-

________ _

lOGGED BY:

M. ZhanWB.J.

leRoy

REPORT'Ft'lRMCOtrf'lETEDBY: B.J. LeRoy

ANNUlAR SPACE DETAILS

TYPE OF SURFACESE'AL: 31810. medium bentonite chips

TYPEOFlJPPIi:RSEAl.AHT:

am in.

medlym bentonite chjps

I~~~~ ~GmMW~~

____ _

SEr1"I«3TIME:

24

holR's (minimum)

TYPE OF AM-lULAR SE.&LANT:

318

in. medium

bentonite

chips

INST~11ONJ.£THOD:

--!:iGravity~.~

____ _

SETllNQ

TIME::

24 hours

(minimum)

TYPE

OFaam:lNITESEAl.-

~

SI..URRY I

CHIPS

I

1NST1UA11ONME1l«)O;

-lolGnMlv~~

____ _

SE1TINGl\ME: 24

ho!II

(minimum)

~OFF~E~P~~~~~o

_________ __

GRAIN

SIZE:

NlA

(SlEYESIZE)

INST~TlON~ ~~~~~

_____ _

1"'I'Pe

OF SAND PACK: --loSllca"""" ....

s""and

........ _____ _

GRAIN

SIZE:

10-21}

(SEVE

SIZE)

INSTALlATION ME"niOO: --lOG!!!nM!y!!!!! _____ _

TYPE OFBACI<FlLL MATERIAL:

.....!l~r!:~!.....:::===-­

(11' APPUCABI.E)

PROTEC11VE CASING

SD4

Sll318

FIFE

PVC OTHER:

RISER PIPE ABOVE W.T.

S93CN

Sll310

PtfE

~OIHER:

RISER PIPE BELOW W.T.

-

59316

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OTHER:

SCREEN

SS304

55318

F'l'FE [J51£) OlliER:

LLREGtSTRATIONI: ___________ _

DRIlLER: M. Laldzlak

Ga1~:~M~.zrnmg~~

__________ _

ORIlLlNGFUJlDS(JYPE):

...J:!None~~

_______ _

DATE STARTED:

10117/08

MTEFINlSHED:

10l2OlO8

DAlE:

10121/08

ElEVA110NS DEPTHS

(.01 til

(MSlr

(BGS)

587.3

2.9

TOP OF PROTECTIVE CASING

586.9

2.5

TOP OF RISER PIPE

584.4

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lill4~

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TOP Of UPPER st:ALJWr

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TOP OF AlII'IULAR SEAlANT

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(AFIB't OOMPI..EOON)

[)ATE:

584.4

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TOP OF

SEAl.

578,,9

5,5

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SAN')

578.9

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578.6

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577.6

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• REHRENCED 10 A Nl'.TIONAL aEODETlC

\ISmCAI.

DAl'UIoI

REMARKS: Schedule 40 PVC. Sandmanufadurer - RW Sidley SIIca

S8nd NO. 5.

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

STATE OF ILLINOIS

BEFORE THE KENDALL COUNTY BOARD

INRE:

APPLICATION OF WASTE

MANAGEMENT OF ILLINOIS INC. and

KENDALL LAND AND

CA TILE LLC FOR

SITE LOCATION FOR A NEW

POLLUTION

CONTROL

FACILITY

)

)

)

)

)

)

)

)

ORDER

STATE OF ILI.lNOIS

COUNTY OF KENDALL

- FILED -

NOV 132008

/2 _

_-H-I

ff.

1#

COUNIY Cl.ERI(.

~./~

KENDAl1 COUNTY

The County of Grundy has filed a motion to strike the report of Kendall County's

("Kendall") Hearing Counsel Michael Blazer. The Motion, apparently was filed on

November 11, 2008 (a state holiday). Although I have already filed

my findings of fact and

law in connection with this siting application, I believe it is my responsibility, as the

Ordinance requires (Secs 7.1(2)(b),(3» to decide all contested legal issues.

My previous order filed November 1

0.2008 in connection with Waste Management

of Illinois, Inc.'s (WMI) "public commenf submission is incorporated by this reference ("the

WM I Order') and attached hereto.

Grundy's motion seeks to stn'ke

the report of Kendall County Hearing Counsel

Micha~1

Blazer ("the report") in its entirety. Grundy's complaint is threefold. First, it argues

the exhibits attached to the report are untimely. Next,

it posits these two exhibits were

never admitted into evidence and should

not be considered since they are outside the

record. Lastly. by innuendo,

it argues the report is "biased" because

it

parrots the opinions

contained in

WMl's late-filed submission. My comments address these complaints in

inverse order.

Page 1

EXHIBIT

ID

---

The authority of the hearing counsel for Kendall County comes from the ordinance.

(Sec.8.4). Consistent with the ordinance, Attorney Blazer

Mafter consideration of a/l timely

filed written comments"

may submit draft written findings. Interestingly, there is no

requirement that Attorney Blazer submit any findings. Clearly he has the right. but not an

obligation

to do so. Grundy may not like the report but the County's Hearing Counsel has

a

job to do. Mr. Blazer is entitled to proffer his opinion. He may be right: he may be wrong.

Merely because he agrees with WMI does not mean he is biased. Grundy's assertions to

the contrary are unwarranted.

Next, the exhibits (A&B) from Mr. Russell and Ms. Swan, are in

my opinion,late-filed

evidence. No reason has been offered as

to why this evidence could not have been

offered at the hearing, or why "good cause- exists to permit the late-filing. For whatever

reason, the County chose

not to offer any evidence at the hearing. Kendall does not, now,

offer any reason why this evidence should now be considered.

Already, in the

WMI order it was indicated that WMl's submission would not

be

recognized. And, in my findings of law and fact it was stated the exhibits to Mr. Blazers

report I did not evaluate. That, too, applies

to his report that relies on those opinions. But

it does not denote that the entirety

of his report should be disregarded.

Finally, the reports

of Ms. Swan and Mr. Russell are untimely. Kendall County had

every opportunity

to call each of them as witnesses. Maybe it wish it had, but that does not

pennit Kendall County, like any other participant, from not abiding with the terms of its own

ordinance.

Page 2

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Accordingly. the motion of Grundy County is granted in part and denied in part.

Exhibits A and

B and any reference to them in the Hearing Counsel's report are stricken

from the record. Otherwise, the motion

to strike to the Hearing Counsel's report is denied.

Patrick M. Kinnally, Hearing Officer

-,

Patrick M. Kinnally, Hearing Officer

KINNALL Y FLAHERTY KRENTZ

& LORAN, P.C.

2114 Deerpath Road

Aurora, Illinois 60506

Telephone:

630/907-0909

Facsimile:

630/907~0913

pkinnally@kfkllaw.com

Page 3

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

STATE OF ILLINOIS

COUNTY OF KENDALL

IN THE MAneR OF

:

)

: §

)

APPLICATION OF WASTE MANAGEMENT OF ILI.INOIS INC. AND KENDALL LAND

AND CATTLE LlC FOR SITE LOCATION FOR A NEW P'OLLUTION CONTROL

FACILITY

ORDER

On October

28, 2008,

the applicant, Waste Management of lIIinois,lnc. and Kendall

Land and Cattle,

l.L,C., {collectivelyreferred.to as "WMn submitted a letter to the Kendall

County Clerk (-Clerk"). Attached.to it was a "Field ResuHs Summary" with exhibits A and

8 ("the submission"). This information was filed for consideration

by the Hearing Officer

alid the County Board ("Board"). 1

The hearing In connection with WMI's landfill siting application ended on October

1,2008.

'On October 31-, 2008,' Grundy County ("Grundy"), a participant, filed a Motion to

Strikethe submission ofWMI. The Village of Minooka (-Minooka; filed a similar pleading.

2

Grundy's motion states several reasons. 'First,

it

says

WM~'s

submission is not .public

comment". NeXt,.it argues

the submission violates the Kendall County Ordinance

. I

PreIiminoriIy..1Idiou{:jI

DO

pan!cipai bas raised

it,

Is !he powtr

mlht

bearing

officer 10

n>Ie

011

posr- bcaiiott;

motioas.

PaflaJ)J,

it miz)ll

be oIl;UCd

tJw

poSt-r-ing D1IIIions.wetc

IIOI.CCalemplated by

Iht OI'diaaace's

dnftcn.

1bc participauts obviously

thiaIc:

oCbcrwise.

Implicit

ia!he oRlinaaee is

dJ:d

autboriry

otlbo

heariDS officer to be ",ponSiblc Cor

ruling

on all cookstcd issueS, IS

well..,

making decisionS

c:onccmiaa

!he lII3IIIIer

in

which die heariDg is OOIIdueled (Ord. Sees. 12

(a)(b». Moreova-.

since tbc

Jlearingoffi= bas !he aulllorily to allow the iatioduction onate-filed evidence. (Ord. sec.. 1.1(2XD

D~ly.bceauso

the fact that

evidence is "laic-filed". die hearing officer

migbl

h."" 10 consider.au applicatioo like WMI's submission after the hearing adjourned. This is exactly ",,,"I

oCcumd ....

2.

MinOcb•

s motion, aItboagh somewhal diO"creol, essartiaIIy

requeSts

the _

relief. OruDdy, thaI is,

strtina

oCWMI's submission.

~

to bod!

0(

these

mctioD.s,

WM!

filed a rapoIise. ODd

GnIIIdy

and

Miaoob

fiJcd

sepanIC

replies.

J line .mewed aD

these

briefs in _ching

the deeision made

in

this oRItr. I

........ 1101 colisidered die reply filed

by

Grundy for

the

reasoos indieaced

in this

Order.

In

view

of

the

findings

of

this Ord ....

1

do

00( intend 10 fashiou • sepOr:ite oRItr

Oft

Minoob's Jnolioa since

J

find

il i.

modered moot.

Page 1 of. 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

(Ament;1ed and Restated Kendall County Site Approval Ordinance for Pollution Control

Facilities No.

08-15,

(April

15, 2008)

Sec;.

5.5; 6.1; 6.4)

("the ordinancej, since it is

untimely. Finally. Grundy, asserts WMl's filing is an attempt to cure the inadequate site

application

of WMI.

The Ordinance says the Hearing Officer is empowered to make decisions consistent

with the concept offundamental fairness. (Ord. Sec.7.1{2)(b» Additionally. the Hearing

Officer

has the discretion to allow introduction of late-filed evidence, whether written or

testimonial, provided "good cause" is shown as to why it is overdue (Ord. 7.1 (2)0». The

ordinance states- all reports, studies, exhibits or other evidence shall be submitted- 7

calendar days prior to the hearing (Ord. Sec.

5.5 (1».

Finally, the ordinance says, that as

to the rebuttal portion of any participanfs case, evidence may be filed one day before the

day of the publiC hearing at which it is offered (Ord. Sec. 7.1(2)0».

The letter from WMl's counsel to the Clerk, dated October 28,

2008,

does not state

:it is "public comment", It doesn't say what

it

is. Another letter from WMl's counsel dated

October 31,

2008,

to the Clerk which submits ASTM Designation

05084-08,

states it is

being filed as .public comment". No objection has been made to that filing.

The October 28,

2008,

submission states it is being filed in response to inquires

made by- the hearing officer and the Board during the rebuttal portion of WMI's case.

Clearly,

it is evidence. and I so find it to be,

The question then becomes whether it was filed in apt time. It was not. It was not

filed seven days prior to the hearing or one day prior to the day of the public hearing which

it could have been offered. namely, the rebuttal portion ofWMI's case. The hearing closed

on October 1,

2008.

Page 2 of 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

The next issue is whether WMI has shown

"good

cause" for the late filed evidence.

"Good cause" is not defined in the ordinance. Maybe it should be. The ordinance requires

me to follow Illinois law (Ord. Sec.

7. 1 (2)(b».

The most recent exposition from the Illinois

Supreme Court on what constitutes

8

go

od

cause" is Vision Point of Sale Inc. v. Haas

(2007)

226 III. 2d 334 (VlSionj

In Vision, our Supreme Court determined what constituted "good cause" to remedy

an unintentional non-compliance with one of its procedural rules, namely an extension of

time (Supreme Court Rule 183). It held, citing 8rightv. Dicke (1995) 166111. 2d 204) that

a paramount concem in permitting a late filing in connection

with a Request to Admit

(SUpreme Court Rule 216)

is the reason given for the failure to adhere to the rule. The

'Courtwent on to hold that in ascertaining whether "good cause" exists, the decision maker

may consider various events. These include such matters as: attorney neglect, mistake.

inadvertence, as well as, other behavior related to the causes

for the party's original non-

-compliance. Basically. the Court concluded the determination

of "good cause" is an issue

of

~act,

which is a discretionary decision of the decision maker.

Although,

WMI

does not specifically invoke the Ordinance's "good cause" exCeption.

in its October

28~

2008. submission, it

~ems

fair to ascribe to WMI such an intent. I do.

Indeed,

the letter clearly indicates that-WMI is bying to explain why it did not undertake the

investigation

of certain unconsolidated soils in a portion of the proposed landfill footprint.

Hence.

WMl's submission should be considered under the "good cause" exception.

WMI, in reply

to Grundy's motion, says it has the right to submit public comment.

(land and lakes Co.

V.

Illinois Pollution Control Board (3d Oist. 2000) 319 III. App. 3d

("land and Lakes"). I agree. The problem is WMI's submission is not public comment, but

Page 3 of 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

late-filed evidence.

WMl's reliance on Land and

lakes is misplaced. The Appellate Court held the Wiff

County Board, as the siting authority, could have treated the exhibits filed in that

proceeding as untimely, consistent with its siting ordinance. It did not do so. Here, as

indicated previously, WMl's submission is not public comment

but late-filed evidence.

The WMI submission contains various tests conducted by

it afterthe hearing closed.

-

These studies were performed on a part of the facility footprint that had not been examined

and included as part of WMl's application. WMloffers no explanation why the filing ofthis

untimely evidence could not have been investigated and Undertaken originally. It clearly

COUld. have. Maybe it was an oversight. The pOint is, WMI had the ability to perform these

studies a$ part

of it's application and chose not

to

do so.

One of the underlying tenets of the ordinance, of which I am charged to observe is

that any decision shall be in accord with the concept of fundamental faimess(Ord. Sec.

7.1

(2)(b».

This applies to an participants. The Ordinance provides every participant has

the guarantee of cross-examination (Ord. Sec. 7.1(2)(i». H is an important right

Thi~

hearing is a testament to that fact. Here, the admission of WMl's submission would

foreclose the rights

of every partiCipant, as weJl as the Board, from being able to test, by

cross-examination, the testimony

of the persons who authored the reports sought to be

admitted. That is unfair.

For the reasons stated, I find that WMI has failed

to satisfy the "good cause"

exception for late filing

of evidence (Ord. Sec. 7.1

(2)Q».

Grundy County's motion to strike the October 28, 2008, letter and attachhlents of

the applicant, Waste Management of Illinois, Inc.,

is

granted.

Page 4 of 5

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Patrick M. Kinnally, Hearing Officer

Patrick M. Kinnally, Hearing Officer

KINNALLY FLAHERTY KRENTZ & LORAN, P.C.

2114 Deerpath Road

Aurora,

Illinois 60506

Telephone:

630/907-0909

Facsimile:

630/907-0913

pkinnallY@kfkllaw.com

Page 5 of 5

---

Jeep

&

Blazer,

L.L.c.

environmental law

Jeffery D. Jeep*

Michael

S. Blazer**

Thomas S.

Yu

Derek

B.

Rieman

Clayton E. Hutchinson

.. Also admitted in Massachusetts

- Also Admitted in New York

FROM:

Michael S. Blazer

24 N. Hillside Avenue

Suite A

Hillside, Illinois 60162

(708) 236-0830

(708) 236-0828 Fax

Michael S. Blazer

email: mblazer@enviroattv.com

MEMORANDUM

TO:

Kendall County Board

CC:

State's Attorney Eric C. Weis

DATE:

November 5, 2008

SUBJECT:

Kendall Land & CattlelWaste Management of Illinois

Siting Application for Willow Run RDF

Lake County Office:

200

N. Martin Luther

King,

Jr. Avenue

Waukegan, IL 60085

Web Site: www.enviroattv.com

Section 8.4 of the Kendall County Site Approval Ordinance for Pollution Control

Facilities provides for the submittal by our firm, as specially-retained outside counsel, of

draft written findings after the close of the siting hearing and after consideration of all

timely-filed written comments. We have in this regard reviewed, in great detail, the

transcripts of the siting hearings, all exhibits and other written materials submitted and

made a part

of the hearing record, and all written comments submitted through October 31.

The following represents our considered opinions regarding the evidence in this matter,

and, specifically, the bases for our opinion that the Applicant, Kendall Land & CattlelWaste

Management of Illinois ("KLCIWMI"), has met its burden with respect to each of the nine

siting criteria.

I.

BURDEN OF PROOF

It is important to understand at the outset what an applicant's burden is. Section 39.2

of the Illinois Environmental Protection Act (the "Act") provides that, "An applicant for local

siting approval shall submit sufficient details describing the proposed facility to demonstrate

EXHIBIT

I

E:

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Jeep

&

Blazer, L.L.

C.

environmental law

November 5,2008

Page 2 of 37

compliance, and local siting approval shall be granted

only

if the proposed facility meets

the [nine siting criteria]". [Emphasis added] This provision means what it says - all, not just

some or most, of the statutory criteria in §39.2 of the Act must be satisfied before a local

board may approve a siting application. See

Metropolitan Waste Systems, Inc. v. Pollution

Control Board,

201 III.App.3d 51,54 (3

rd

Dist. 1990);

Waste Management

of

Illinois, Inc. v.

Illinois Pollution Control Board

(1987), 160 III.App.3d 434, 443 (2

nd

Dist. 1987).

Unlike criminal trials or civil cases involving claims for fraud, neither "beyond a

reasonable doubt" nor the "clear and convincing evidence" standard apply to a siting

proceeding. Rather, as counsel for the Village

of Minooka correctly points out, the

applicable burden

of proof is the "preponderance ofthe evidence" standard. (Minooka Post

Hearing Memo at 1) This is consistent with all the case law on the issue. See,

e.g.,

American Bottom Conservancy

vs. Village

of

Fairmont City,

PCB 01-159, 2001 WL

1286096, Slip Op. Cite at 3

(I PCB October 18, 2001);

cor

Landfill Corporation v. City

of

Joliet,

PCB 98-60, 1998 WL 112497, Slip Op. Cite at 4 (IPCB March 05, 1998);

Clean

Quality Resources, Inc. v. Marion County Board,

PCB 91-72, 1991 WL 171684, Slip Op.

Cite

at 9 (I PCB August 26, 1991

).1

What does "preponderance of the evidence" mean? "A proposition is proved by a

preponderance

of the evidence when it is more probably true than not."

Rodney

B.

Nelson

v. Kane County Forest Preserve,

PCB 94-244,1996 WL 419472, Slip Op. Cite at 5 (IPCB

July 18, 1996) See also

Industrial Salvage, Inc.

v. County Board

of

Marion County,

PCB

83-173, 1984 WL 37885, Slip Op. Cite at 2 (IPCB August

2, 1984) The distinction between

the different standards of proof was explained in

Estate

of

Ragen,

79 "I.App.3d 8, 13 (1 st

. Dist. 1979):

Proof by a preponderance

of the evidence is not the same as proof by

clear and convincing evidence. The preponderance

of the evidence

has been defined as evidence sufficient to incline an impartial and

reasonable mind to one side

of an issue rather than the other.

Moss-

In its Post Hearing Memorandum, Kankakee Regional Landfill ("KRL") misrepresents the applicable

burden by asserting that the standard of proof is "ambiguous" and that, "The law leaves it entirely to the local

decision makers to determine for themselves what measure of proof is sufficient." (KRL Memo at 2) The

cases confirm that this is not correct.

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Jeep

&

Blazer, L.L.C.

environmental law

November 5, 2008

Page 3 of 37

American, Inc. v. Fair Employment Practices Commission

(5th Dist.

1974),22 IILApp.3d 248,259,317 N.E.2d 343, 351.) A proposition

proved by a preponderance

of the evidence is one that has been

found to be more probably true than not. (See, generally, Illinois

Pattern Jury Instructions, Civil, Nos. 21.00 and

21.01 (2d ed. 1971 ).)

Clear and convincing evidence, on the other hand, reflects a more

exacting standard of proof.

While it has been defined as evidence which leaves the mind well-

satisfied

of the truth of a proposition

(Hotze v. Schlanser(1951), 410

III. 265, 102 N.E.2d 131;

Finney v. White

(1945), 389 III. 374, 59

N.E.2d859), strikes all minds alike as being unquestionable

(Unes v.

Willey

(1912), 253 III. 440, 97 N.E. 843), or leads to but one

conclusion

(Johnson v. Johnson

(1953), 1 1I1.2d 319, 115 N.E.2d 617),

proof by clear and convincing evidence has most often been defined

as the quantum

of proof which leaves no reasonable doubt in the mind

of the trier of fact as to the truth of the proposition in question.

(Galapeaux v. Orviller

(1954), 4 1I1.2d 442, 123 N .E.2d 321 ;

Morelli v.

Battell;.)

It is apparent, however, that, although stated in terms of

reasonable doubt, clear and convincing evidence is considered to be

more than a preponderance while not quite approaching the degree

of

proof necessary to convict a person of a criminal offense.

(People v.

Ralls

(5th Dist. 1974), 23 III.App .3d 96, 318 N. E.2d 703;

People v.

Sansone

(1974), 18 III.App.3d 315, 309 N.E.2d 733; see also 30

Am.Jur.2d Evidence s 1167 (1967).)

The spectrum of increasing

degrees

of proof, from preponderance of the evidence, to clear and

convincing evidence, to beyond a reasonable doubt, is widely

recognized, and it has been suggested that the standard of proof

required would be clearer if the degrees

of proof were defined,

respectively, as probably true, highly probably true and almost

certainly true. McBaine, Burden of Proof: Degrees

of Belief, 32

Calif.L.Rev. 242 (1944).

~

As noted, it is our opinion that KLC/WMI has met its burden with respect to all of the

siting criteria. This is subject

in several instances to the imposition of special conditions.

2

2

Section 39.2( e) of the Act provides that the siting authority "may impose such conditions as may be

reasonable and necessary to accomplish the purposes

of this Section and as are not inconsistent with

regulations promulgated by the [Pollution Control] Board".

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Jeep

&

Blazer, L.L.C

environmental law

November 5, 2008

Page 4

of 37

II.

SITING CRITERIA

Criterion 1:

the

facility is necessary to accommodate the waste needs

of

the area it

is intended to serve:

There are two primary legal principles that must be considered in determining

compliance with criterion

1. First, it is the applicant who defines the intended area to be

served.

Metropolitan Waste Systems, Inc. v. IPCB,201

III.App.3d 51, 55 (3

rd

Dist.1990).

cert.

denied, 135111.2d 558(1990) (Tr. 1180-1181)3 In this case, KLCIWMI has proposed a

service area consisting

of 11 counties: McHenry, Lake, Cook, DuPage, Kane, DeKalb,

LaSalle, Kendall, Grundy, Will, and Kankakee. It is this 11-county service area, therefore,

that must be considered

in determining the need for the subject facility.

The second legal principle deals with the meaning

of the word "necessary" in

criterion

1. An applicant for siting approval does not have to show absolute necessity. It is

enough that the proposed facility is "expedient" or is "reasonably convenient."

E

&

E

Hauling, Inc. v. Illinois Pollution Control Board,

116 III.App.3d 586, 605 (2

nd

Dist.), aff'd 107

1I1.2d 33 (1985). This standard has in turn been defined as requiring a showing that the

facility

is reasonably required by the waste needs of the service area, including

consideration

of its waste production and disposal capabilities.

Waste Management of

Illinois, Inc. v. Pollution Control Board,

122 III.App.3d 639, 645 (3rd Dist. 1984); see also

File v. D

&

L Landfill, Inc.,

219111.App.3d 897, 906-907 (5

th

Dist. 1991)

We believe that the data presented

in the Siting Application, coupled with the

testimony

of Jeanne Lindwall ("Lindwall"), was credible and established a need for the

proposed facility

in the service area for its projected life. Specifically, Lindwall examined

waste production and disposal capabilities. Lindwall testified that the net amount of waste

generated

in the service area during the relevant time period (after deduction of recycling

rates) is approximately 184 million tons. (Tr. 1136)

In contrast, based in large part on

figures published by the Illinois Environmental Protection Agency ("IEPA"), there

is only

about 137 million tons of available disposal capacity (considering all disposal facilities that

do or may service the proposed area), resulting

in a capacity shortfall of approximately 47

3

References to the transcripts from the siting hearings will be cited as 'Tr. _".

Electronic Filing - Received, Clerk's Office, April 10, 2009

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million tons. (Tr. 1138-1139)

The capacity for Willow Run is 14.5 million tons, or

approximately one-third of the capacity shortfall. (Tr. 1139)

KLCIWM I also committed in its Application to provide adequate disposal capacity for

all waste received from municipalities in Kendall County for the entire site life,

at a disposal

fee no greater than the lowest fee charged by Waste Management in

any waste contract

negotiated with a municipality outside Kendall County.

Further, KLCIWMI agreed

to a special condition limiting the service area to the 11

counties identified in the Application. (Tr. 1189-1190) The above evidence, coupled with the

capacity guarantee and this condition (which

we believe to be reasonable), in our opinion

satisfies the req uirements

of criterion

1.

4

Criterion 2:

the facility is

so

designed, located and proposed

to

be operated that the

public health, safety and welfare will

be

protected:

This criterion, in many respects, is clearly the most important - particularly in light of

the proximity of the proposed site to the potable water aquifer. It is thus not surprising that

the evidence on this criterion took up the largest portion

of the siting hearing. The testimony

ofKLC/WMl's witnesses on criterion 2, Andy Nickodem ("Nickodem") and Joan Underwood

("Underwood") was credible and supported by

the evidence. In contrast, the testimony of

the opposing geologists, Stephen Van Hook ("Van Hook"), Charles Norris ("Norris") and

John Bognar ("Bognar") was

at best equivocal and, in one significant instance, completely

false.

A.

Facility Design

In its Post Hearing Memo, Grundy County ("Grundy") makes much of the fact that

both the Hearing Officer and the County's review team concluded that criterion 2 had

not

4

There was some information presented during and after the hearing, in the form of public comment,

regarding the possible availability

of other technologies, such as "plasma arc gasification", that could

theoretically render landfills

in general "unnecessary". We have not found any authorities to support the

proposition that speculative altemative technologies should be considered in the context of criterion

1. Nor, in

any event, is there any credible evidence in the record that any such technology will be available in the

foreseeable future in the proposed service area, or as to what portion

of the waste needs of that area could

be satisfied by any such technology.

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been meet

in connection KLCIWMl's first application in 2007. Grundy then argues that

"nothing substantive has been changed. and that this Application offers

no improvements

whatsoever to safety." (Grundy Post Hearing Memo at 1) This assertion fails to account for

significant design differences and enhancements. Attached hereto as Exhibit A is a

memorandum from Stuart Russell ("Russell"). our engineering expert, based

on an

independent review

of the Application. Russell points out several differences and

enhancements that render this Application substantially different from the one

in 2007,

including:

1.

The development is limited to the eastern portion of the original site that has

the greatest overlying native soil thickness. The current design shows the

entire waste footprint east of Walley Run.

2.

The new proposed design shows a much smaller footprint (about half of the

size

of Willow Run 1). and the bottom liner system design includes

excavation grades that are all above the bedrock, including the leachate

sumps. Native clay of five feet or greater is maintained above the bedrock

in

the current design.

3.

The current proposed design is similar to the one in 2007, but includes two

new important elements. First, the design leaves at least 5 feet (and more

thickness for most

of the footprint) of native clay below the bottom liner

system

in addition to the other liner elements. This native material is

indicated

in the soil borings to have low permeability properties and provides

an additional safety factor

in preventing contaminants from entering the

aquifer below the site. Second, the new design proposes the installation of a

16 ounce. per square yard geotextile cushioning layer

on top of the upper

geomembrane liner prior to placing the one-foot drainage layer. The

application provides calculations showing that this cushioning layer has the

tensile strength and puncture resistance needed to protect the upper

geomembrane.

In addition, the application provides calculations

demonstrating that the 4 ounce per square yard filter geotextile layer above

Electronic Filing - Received, Clerk's Office, April 10, 2009

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the drainage layer

is adequate to prevent fine-grained materials from

damaging

the drainage layer function.

4.

The new design shows the cells and leachate collection piping oriented in the

east-west direction with clean-out access on both sides of the landfill. The

suggestion of clean-out access at both ends

ofthe gravity leachate collection

pipe runs was incorporated in the new design.

5.

The current design does not propose to divert or modify Walley Run Creek.

The application also describes design elements that will reduce the flow of

water in the regional drainage system during storm events that should reduce

the occurrence of flooding after completion of the construction. The

application includes supporting flow modeling that demonstrates that the

design will not adversely affect drainage.

These differences and enhancements were confirmed during the siting hearing.

1.

Liner

Design

There was a great deal of testimony regarding the proposed "double composite" liner

system, which exceeds the requirements of both State and Federal regulations. Extensive

testing was conducted to confirm the stability of the liner system. (Tr. 103-104) Most

important, no part

of the liner system is proposed to be located in the bedrock aquifer. (Tr.

79,

101,249) Further, while there are areas that are thicker, there is a minimum offive feet

of low permeability in place material between the bottom of the liner system and the top of

the bedrock aquifer. (Tr. 80, 102)

The system includes three feet of compacted soil, two 60-mil HDPE geomembrane

liners, and a reinforced geosynthetic clay liner

in between the geomembrane liners. All of

these layers work together to prevent the migration of leachate. (Tr. 101-103) The synthetic

liner materials will last several hundred years. (Tr. 174, 362-364)

Nickodem also described the testing that will be conducted to confirm proper and

leak-free installation

of the synthetic components of the liner system. The first is inspection

by a third-party construction quality assurance company to insure that the liner panels have

been installed and seamed properly. Taking this a step further, an electrical leak detection

Electronic Filing - Received, Clerk's Office, April 10, 2009

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system will be implemented to identify and repair any post-installation leaks, thus insuring a

leak-free system. (Tr. 83, 104-106) The leak detection system exceeds State of Illinois

construction quality assurance requirements. (Tr. 277)

2.

Leachate Collection and Control

The three design components that relate to leachate control and management are

the double composite liner system (discussed above), the leachate management system

and the final cover system. (Tr. 101) The leachate management system was based on an

evaluation

of the requirements for the facility, taking storm events into account. (Tr. 83-84)

The system is designed to minimize the formation of leachate, and to manage and contain

the leachate. (Tr.

100-101)

The leachate collection and management system includes larger 8-inch collection

pipes to provide greater flow capability. The design is intended to preclude the

accumulation

of any leachate on the liner, and KLC/WMI is not proposing to store any

leachate on the liner. There will thus not be any leachate that could leak out in the event of

a breach in the liner. (Tr. 107-109, 112-113)5 Leachate will be taken off site by tanker

trucks. The system also includes temporary storage capacity for 80,000 gallons of leachate,

which represents five days of storage capacity. (Tr. 111-112) This complies with the

regulations and is adequate to accommodate expected site conditions. (Tr. 184-186)

The

final cover minimizes the amount of leachate that will be formed during

operations and closure

ofthe facility. (Tr. 115) The final cover system includes a one-foot

soil grading layer, a low permeability synthetic layer which inhibits infiltration

of water but is

flexible enough to allow for settlement, a geocomposite drainage layer, and three feet of

soil over the top. (Tr. 115-117)

3.

Gas Collection and Control

The gas management system design is based on extensive analysis of the amount

of gas that would be generated by the facility. (Tr. 85) The gas management system is

designed to handle the greatest amount

of gas generated during the operating and post-

5

The operational procedures that will be implemented will also reduce the amount of leachate that is

formed. (Tr. 401-403)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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37

closure periods. The plan includes, when enough gas is being generated, the installation of

a gas recovery facility. (Tr.

127-132, 383-386)6

Based on the phased development plan,

this would be around the seventh year

of operations. (Tr.

327-328)

4.

Stormwater Management

An extensive analysis and survey of site and area conditions, including historical

storm events, was conducted in order to design the surface water management system and

insure that surrounding properties would not be impacted. (Tr.

84-85)

The investigation for

the stormwater system included extensive analysis

of the Aux Sable Creek watershed and

the existing drain tile system. (Tr.

85-90)

The surface water management system is

designed to prevent both upstream and downstream backing up or flooding, and will in fact

reduce downstream water flow to inhibit flooding. (Tr.

117)

5.

Monitoring Systems

Finally, monitoring systems will be put in place to monitor all engineered components

of the facility, including air, gas, leachate, groundwater, and surface water. (Tr.

85, 134-

138)

All of the engineered systems and monitoring systems are designed to function in an

integrated manner, to accomplish the goal

of an effectively and safely functioning landfill.

System installation will be coordinated with the phased cell development. (Tr.

138-146f

The application also includes a closure and post-closure plan to ensure the site is closed

and maintained properly. (Tr.

85)8

6.

Soil Borrow Are.a

This issue does not warrant extended discussion in this context. There was a

substantial amount

of back and forth during the hearing relating to the fact that there is a

net soil "deficit"

of approximately

3,000,000

cubic yards that will be needed for the

development

of the facility. (Tr.

206-207)

It is expected that a significant portion of this soil

6

Pursuant to Section 9.21 of the Host Agreement, ''The County reserves all its power and authority,

including the power to tax and zone the property, including zoning authority over a landfill gas recovery

system should one be installed at the landfill." Gas flares will

be used until such time as a gas recovery

facility can

be installed. The gas flares will be enclosed. These prevent the flame from being seen and also

burn the gas more effiCiently. (Tr. 133)

7

The facility would be built in 8 phases, or cells, over the 14% year life. (Tr. 96-100, 397-400)

8

Section 1.4 of the Host Agreement also imposes obligations on Waste Management that, irrespective

of the IEPA post closure period, last forever. (Tr. 370-371)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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may be brought in from a "borrow area" located on property owned by Waste Management

to the south

of the proposed facility. (Tr. 207-208, 210-212, 270-271) This borrow area is

not within the facility that is the subject of the Application and siting hearing. (Tr. 270, 333-

335)

Despite this, several participants filed Motions to Dismiss based on, among other

things, the lack

of specific information and notice regarding the borrow area. These Motions

were denied by Hearing Officer Kinnally, who ruled that:

Our ordinance is pretty clear as to what is required concerning a site

description, and that's contained in Section 4.4. Nowhere in 4.4 does it

indicate that property not within the site, so to speak, is to be

considered part

of the site. And it's somewhat vague as to what's

required with respect to notice and, therefore, it relies on the state

statute for notice given to people in the vicinity.

Our ordinance also has different notice requirements under Article

VIII, but they don't talk about whether

or not notice has to be given to

owners of land within 250 feet of the lot line. That is a state statute.

and that statute is contained in Section 39.2.(b)

of the Act. Mr. Porter

apparently argued that these borrow areas are part

of the site, and

he's incorrect. He also argued that these borrow areas are going to be

mined. He's incorrect about that.

The case that he cited really has nothing to

do with a landfill siting. It's

a legal malpractice case that was filed against a lawyer who

apparently or at least allegedly, because the case was decided on a

motion to dismiss, there was no facts determined by a jury or a judge

at that point. The case basically said that if you want to site one of

these things, a landfill, you have to follow what the state statute says.

And the statute says notification of owners of land within 250 feet of

the lot line.

I'm troubled by the fact that Mr. Porter said that he could not find any

case law other than this appellate court decision.

And I found one

or one was given to me where the Pollution Control

Board, in a somewhat similar situation, and this is at 1999 Westlaw,

436,320, 1999 Pollution Control Board case talked about what was

required in addition to the case that Mr. Moran cited.

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And that case at 1999 Westlaw 436,320 is called ESG Watts versus

Sangamon County Board. And that decision, which talks about what is

required and talks about jurisdiction, talks about

lot lines, is a case

where Mr. Helsten was one

of the lawyers involved in that appeal. So

apparently, the research done by Mr. Porter was somewhat wanting.

The case that

is cited by the Applicant here, Land & Lakes Company

Operations, PCB 91-7

is on point. And clearly in that case, the issue

was raised. There were three different areas,

A, B, and C parcels. The

A parcel being the parcel identified as the site where landfill

operations would occur.

And beginning

at Page 10 of that decision and continuing through

Page 12, the Pollution Control Board basically indicates that the

requirements are the ones that Mr. Moran just talked about and talked

about in his argument.

I'm going to file a copy

of this decision with my clerk. I don't need to

belabor this issue because the issue here is whether people were

notified about the facility or the waste storage site within

250 feet, and

that's undisputed that that occurred 250 feet of the lot line.

Merely because there are other parcels that are owned by the

Applicant which are in the vicinity or next to the site that they have

defined

in their Application as the site for land filling operations does

not mean that that becomes part

of the site. And the Pollution Control

Board made that very clear in their decision.

So for those reasons, and I will file all three copies of these cases, the

ESG Watts case, the Land

&

Lakes Company case as well as the --

let me get it here -- the Environmental Control Systems versus Long

case, which I think is consistent with the Pollution Control Board case,

Land

of Lakes. I'll file those with the clerk. Anybody can read those if

they want.

But for the reasons indicated in those -- in the decision

of Land

&

Lakes Company, I'm going to deny the motion. And I think the County

Board does have jurisdiction, so that will be my ruling with respect to

that motion.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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(Tr. 1901-1904) It is abundantly clear that the issue

of the borrow area is not properly the

subject

of this proceeding.

9

B.

Site Geology, Hydrogeology and Groundwater Use

As noted above, Grundy claims that "nothing substantive has been changed" in this

Application, as compared to the one in 2007. Apart from the differences noted above,

Grundy's argument ignores the primary reason for the recommendations regarding the

2007 application. Both recommendations focused on the fact that KLCIWMl's criterion 2

witnesses had not done any

of the actual design and site work themselves, and that

Underwood had candidly acknowledged that she could not vouch for the accuracy

of the

data. (Kinnally Recommendation at 13-15, attached as Exhibit A to Grundy's Post Hearing

Memo; Blazer Recommendation at 6-7, attached as Exhibit B to Grundy's Post Hearing

Memo)

One

ofthe most significant "substantive changes" here is the fact that this time the

witnesses did the work themselves, and vouched for the data. Nickodem is the chief

designer

of the site, and did not just testify in support of someone else's design. (Tr. 155)

Similarly, Underwood was retained to evaluate the geologic and hydrogeologic conditions

at the site, in order to determine whether the site is suitable for a landfill. (Tr. 523-524) As

part

of her analysis, Underwood characterized the geology at the site. This was

accomplished by reviewing published information, reviewing the data from prior landfill

applications, and generating substantial quantities

of new information based on sampling

and testing. This included approximately 6000 feet

of soil borings and rock cores. These

were also reviewed by professionals with the Illinois State Geologic Survey to confirm that

the soil borings and rock cores were characterized correctly. Underwood personally

observed every soil and rock sample that had been taken for the prior application.

1o

Most

9

It WOUld. however. be subject to local zoning and land use controls.

10

The samples had been stored in a warehouse, in wax impregnated cardboard boxes that were

covered with two sets

oftarps. (Tr. 625-626) Van Hook criticized Underwood's use of core and soil samples

that had been taken in the context of the previous siting application, because of potential issues resulting from

how they may have been stored, where they may have been stored, and how they may have been handled.

He felt Underwood should have gone back and redone the core samples. But Van Hook then admitted that

"the Geological Survey does it all the time. They store them, and they go back and look at them." (T

r. 1378-

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important, Underwood personally vouched for the accuracy of all the data. (Tr. 524-526,

538-540, 624-625, 2222-2223, 2226-2227)11

Underwood was able to testify with a much higher degree of certainty than she was

in the first hearing because she was able to collect substantially more data. The data was

also collected under her supervision, so she could confirm its accuracy, and thus arrive at a

complete understanding

of the hydrogeologic system under the site which she personally

verified. (Tr. 572-573)

With this "substantially changed" background in mind, we can now turn to a review

of

the evidence. The geology at the site consists predominantly of stacked horizontal geologic

units

of soil and bedrock. The dominant soil or clay layer above the bedrock is the Equality

Formation. This is a glacial lake deposit, and it is extensive, continuous and encompasses

the entire site. There are three main rock formations below the clay. The first is the Galena

Group, which is approximately 170 feet thick and constitutes the uppermost aquifer

at the

site. Below that is the Plattville Group. Beneath that is the Ancell Group, which contains the

deep aquifer in the area. (Tr. 526-530)

Underwood also characterized the hydrogeology at the site. This included an

analysis

of the local, intermediate and regional groundwater flow systems in the shallow,

intermediate and deeper subsurfaces, and

of recharge and discharge areas. (Tr. 530-534)

Underwood developed a three-dimensional understanding

of the site hydrogeology, based

on the data that

she personally developed. (Tr. 535-536)

1.

Upper Confining Layer

Underwood developed geologic cross sections reflecting the hydrogeology at the

site. Groundwater flow is primarily northwest to southeast. According to Underwood, and

1380,1426-1430) Van Hook also ignored the substantial amount of new sampling that was conducted for this

Application. Moreover, it is noteworthy that Van Hook also admitted that he was in fact speculating regarding

the condition

of the samples, since he did not even know where they were stored. (Tr. 1430, 1454) Indeed,

although Van Hook had been on the project for five weeks as

of the time he testified, neither he nor anyone

from his company sought access to the core samples to personally inspect them. (Tr. 1451-1454) Bognar,

Minooka's witness, saw nothing inappropriate with the re-examination

of the stored samples from the 2007

application. (Tr. 2086-2087)

11

As Hearing Officer Kinnally noted, this was contrary to the assertion of Bognar, Minooka's witness,

that insufficient

data had been collected. (Tr. 2225)

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based

on her review and analysis of all the data, the Equality Formation acts as a barrier to

groundwater movement. This upper confining unit various in thickness from approximately

5 to 25 feet. The analysis also reflects that the Galena aquifer is being recharged from

somewhere away from the site. (Tr. 534-535, 536-537)

All

of the different testing methods and data reflected consistent results and led to

the same conclusion. Aquifer

or pump tests confirmed the presence of a confined aquifer

system under the site. (Tr. 541-542) The aquifer is confined by the low permeability soils

of

the Equality Formation. The primary flow is also horizontal. This results from the layered

geologic deposits. The testing confirmed that it is 100 times easier for water to move

horizontally than it is vertically, against the geologic units. (Tr. 543-545)

Storage coeffecient is a number that indicates how water is released from storage

in

the aquifer. The storage coefficient data for this site further confirms that this is a confined

aquifer. (Tr. 570-571)

Potentiometric surface data further confirmed the conclusion that the Galena aquifer

is a confined aquifer. There is pressure that confines the water in the aquifer, which is

released when a well is drilled into it. The water then rises in the well above the surface

of

the aquifer. (Tr. 669)

As noted, groundwater flow under the site is primarily horizontal. Coupled with the

upper confining layer, this results

in a naturally protective environment because there are

no strong vertical gradients pushing water downward into the aquifer. (Tr. 537-538) The

water table is present

in the saturated portion of the upper confining layer. But the water

table in the low permeability soils is not part

of the aquifer.

12

The water is not transmitted

easily through the soils, and is not considered part

of the aquifer. The data confirms that

12

Norris, KRL's witness, claimed that some undefined portion of the liner system would be in the water

table, apparently trying to equate the water table with the aquifer. Yet when Hearing Officer Kinnally asked

him the direct question, "Do you equate the aquifer with the water table at this site, yes or no?", Norris could

not answer. (Tr. 1576-1577)

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the aquifer does not extend up through the confining layer. (Tr. 541, 547-549, 587, 646-

647,657-658)13

In summary, the hygrogeologic conditions at the site are:

(Tr. 546-547)

a.

Starting from the top, the clay soil at the surface confines the aquifer.

That means that recharge is limited at the site. Water does not move

through those materials easily.

b.

The water table contained within those clay soils is not part of the

aquifer because

of the low transmissivity or transmissive abilities of

those soils.

c.

The groundwater in the uppermost aquifer moves predominantly in a

horizontal direction. It is 100 times easier for the water to move

horizontally then vertically. That results from the geologic layering and

the small vertical gradients.

d.

Finally, groundwater moves horizontally mainly along those bedding

planes.

Bognar, Minooka's witness, was not

in our view successful in rebutting the evidence

put forth by KLC/WMI. This

is borne out first by the report he submitted. Bognar's ultimate

"opinion" was that he could not render an opinion because, according to him, there was not

enough information submitted to confirm that the Equality Formation is a confining unit. (Tr.

2039, 2041, 2049,

~052-2053,

2062) This was doubtless the rationale for the fact that, in

his report, Minooka Exhibit

4, Bognar couched his opinions in terms of what mayor may not

"possibly" exist.

Bognar's testimony was at best inconclusive. Bognar did agree that the upper soil

layer is laterally consistent across the site. (T

r. 2079) But he could not opine one way or the

other whether the water table and the aquifer are equivalent at this site (Tr. 2079-2080,

2085), although he did acknowledge that there can be clay layers that separate a water

13

The hydraulic conductivity of the clay above the aquifer is 10,000 times slower than in the aquifer

itself. (Tr. 582-583)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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table from the aquifer. (Tr. 2104) Notably, Bognar also admitted that there is data in

Underwood's report that supports the claim that the overburden at the site is an upper

confining unit. (Tr. 2082-2083) This included the fact, as noted by Underwood, that water

rose above the top

of the aquifer when wells were drilled into the bedrock, reflecting the

release of pressure created by the upper confining unit. (Tr. 2084-2085) Bognar also

confirmed that the data on vertical permeability, with which he had no quarrel, confirmed an

extremely low vertical permeability

at the site. This is consistent with a confining unit. (Tr.

2095-2098) Thus. when asked directly, Bognar acknowledged that he was not taking the

position that the clay above the aquifer is not a laterally extensive confining unit. {Tr.

2085)14 Ultimately, the only "conclusion" which Bognar could confirm was that he could not

come to any conclusions. (Tr. 2092-2093)

Two additional items warrant some mention. First, on October

28 KLC/WMI

submitted additional information, in the form

of comment, regarding the results of new well

tests conducted exclusively

in the unconsolidated deposits above the bedrock aquifer.

These wells produced no water after three days. This information was obviously submitted

to further substantiate the fact that the clay above the bedrock is a confining unit. Several

participants have filed Motions to Strike this information, arguing that this is improper

"evidence" rather than "comment".

We take no position on this issue, but note only that,

given the other evidence already in the record on this issue, this new material is merely

cumulative.

Second, Underwood testified on rebuttal regarding the pond that had been

excavated and exists at the nursery operation east

of the proposed site. Underwood

attempted to point out that the information from the construction of the pond confirmed that

no water came from the unconsolidated deposits and that this was further evidence that

those deposits are a confining unit. (Tr. 2251-2255) The problem with Underwood's

testimony is that it was second-hand information, relying on information purportedly

14

Bognar also confirmed a preference for the Illinois method of site analysis, which allows for the

application

of the geologist's professional judgment, rather than requiring a defined testing protocol. (Tr. 2107-

2108)

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obtained from the nursery owner. That problem has now been corrected. The nursery

owner, Tim Wallace ("Wallace"), submitted a letter as comment which confirms the details

of the pond construction. (A copy of the letter is attached hereto as Exhibit C.) Consistent

with Underwood's testimony, Wallace states the following:

I began excavation of the pond in 2003. During that excavation, we

encountered yellow and blue clay, and no water. At the north end of

the pond, we continued to excavate, approximately 28 feet, until we

reached rock. At that point only, did water run into the excavation. The

excavation could not be kept dry by pumping.

Near the middle

of the pond, water only ran into the excavation from

rain and drain tiles, and once the excavation was deeper, from an

area

of boulders located on top of the rock.

All

of the foregoing is consistent with the review and analysis conducted by our

retained expert on these issues, Laura Swan. Ms. Swan's review report is attached hereto

as Exhibit

B.

a.

Tritium Data

A sub-issue that seemed to take on a life of its own related to the presence of tritium

in the water in the aquifers below the site. Underwood examined the groundwater

chemistry, focusing

on differences in tritium and ion levels, which further confirmed to her

that there

is a resistance to vertical flow, and the groundwater flow is horizontal. (Tr. 545-

546)15

In response to questioning from counsel for KRL, Underwood confirmed that the

Willow Hill Landfill site (the subject of a separate siting application in 2007)

is directly

upgradient

of the proposed site and is less than a mile away. (Tr. 567) Notably, Underwood

pointed out that there is little recharge to the Galena aquifer in the subject site area.

Recharge occurs outside the site area, where the bedrock comes up close to the surface.

15

There is serious doubt about the usefulness of the tritium data in any event. In its Post Hearing

Memorandum, Minooka chides Underwood for apparently equivocating

on the usefulness of tritium data.

(Minooka Post Hearing Memo at 3-4). Yet Minooka's own witness, Bognar, agreed with Underwood and

described the use of tritium as "inexact" and a "gross general tool". (Tr. 2098-2100)

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(Tr. 575-577,

601

)16

Based on tritium levels, the water in the Galena aquifer is "newer" or

post 1972 water. Given site conditions, Underwood assumed that this water would have to

come from a more

localized recharge source. (Tr.

602-603)17 These facts, brought out by

KRL's attorney, assume significant importance when considered

in the context of the

testimony

of KRL's witness, Norris.

The opposing geologic testimony was substantially comprised, not of contrary data,

but

of contrary innuendo. The .evident focus was to cast doubt on the applicant's

conclusions. But these efforts did stoop,

in one significant instance, to outright

misrepresentation. Norris claimed that the presence

of tritium below the site "absolutely

establishes" "significant flow from the surface downward into the aquifer." Norris claimed

that this was evidence that "the fine grain clay materials are

so compromised that they do

not form a confining layer.If (Tr. 1501-1502)

Yet Norris told a substantially different story almost exactly one year earlier, when he

testified

in opposition to the Lisbon Development application for the Willow Hill Landfill.

18

In

that proceeding, in response to a question from Board Member Wehrli, Norris testified that:

I don't think it's probably a reason for it because the nature

of

recharge areas in, say, northern Illinois with the climate and stuff that

we have here are that areas that are topographically flat or have a

slight fall to them

in -- in all directions generally are going to be

recharge areas.

So if you just look at the topographic map, I think it -- this is a

very likely case for having a recharge area.

We

know from the Willow Run data that bedrock wells there have

tritium in them. Tritium forms in the atmosphere. It means that rain

somewhere

in this vicinity got into the bedrock and has moved

that far. So there's a -- a recharge area fairly close to that site or

it wouldn't have tritium in that groundwater. That's consistent

with what we see here in a very flat area which would be a likely

16

The primary regional recharge area for the Galena aquifer is in the Newark area. (Tr. 578)

17

In response to a question from counsel for Grundy County, Underwood concluded that the tritium

under the site came in laterally from a recharge area west of the site. (Tr. 681-682)

18

Norris appears to have spent a substantial portion of his career testifying in opposition to landfills. (Tr.

1551-1554)

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37

recharge area, and we have the head data that shows the downward

flow

of water. [Emphasis added]

(Willowhill Tr. 2388-2389)19 There are two remarkable aspects to this testimony. It is

completely inconsistent with Norris' testimony in this proceeding, and it is completely

consistent with Underwood's. As noted above, Underwood testified early on that the there

must be a localized recharge source. Thereafter, in rebuttal, Underwood testified about the

data from the U.S. Geological Survey regarding information from the publication

Surface

Water and Groundwater Resources

of Kendall County,

which confirms that the areas

immediately west and northwest of the site, where the bedrock

is at or just below ground

surface, are a local recharge area for the upper aquifer. (See KLC/WMI Exhibit 14; Tr.

2232-2234)

2.

Groundwater Impact Assessment

A groundwater impact assessment ("GIA") is a process utilized in the IEPA

permitting process. It involves the use

of a contaminant transport model, using certain

assumptions, to test the hypothetical situation

ofthe landfill leaking and the potential affect

it could have on groundwater. (Tr. 549-550) Underwood has performed 36 to 48 GIA's, all

of which have been accepted by IEPA. (Tr. 551-552) In this case, Underwood's

contaminant transport model utilized conservative "worst case" assumptions. (Tr. 554-555)

The result

of the GIA was that there would be no impact to the uppermost aquifer. (Tr. 555-

556)

However, as the hearing progressed, it became clear that the GIA was

of limited, if

any, usefulness in determining whether or not KLCIWMI had met its burden with respect to

criterion

2.20

The GIA submittal to IEPA involves an iterative, back and forth process, where

comments are taken into account to ultimately arrive at IEPA acceptance. (Tr. 552-553)

Van Hook, Grundy's witness, criticized some of the parameters used by Underwood

in her GIA. (Tr. 1367-1368,1381-1384) Yet Van Hook admitted that he used the same

19

The subject transcript was submitted as part of public comment in this matter by counsel for

KLeIWMI.

20

The County Siting Ordinance does not require the submittal of a GIA. (Tr. 605)

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hydraulic conductivity factor for his model that Underwood used for hers. (Tr. 1456-1457)

Van Hook ultimately confirmed that the GIA submittal to IEPA is an iterative process,

whereby the submission is made, IEPA replies with comments, and ultimately

the model is

made to pass with the incorporation

of the comments from IEPA. (Tr. 1394-1395, 1439-

1440) Van Hook also acknowledged that a

GIA is not part of the siting process and is not

required by the County Siting Ordinance. (Tr. 1395) In any event, despite his "analysis",

Van Hook was unable to provide any probability that the aquifer would

be contaminated.

(Tr. 1384-1385)21

Similarly, Norris' criticism focused primarily on the GIA.

22

Ultimately, however, Norris

acknowledged that the back and forth process involving the submittal

of GIAs to the IEPA,

entailing the manipulation

of data and submittal of different parameters, always results in a

model that will pass. Under those circumstances, Norris was

of the opinion that this

exercise did not relate to the issues

of public health, safety and welfare, and was not

properly the subject of review by the siting authority. (Tr. 1528-1529)23

21

Moreover, the primary focus of Van Hook's testimony was not that this landfill would contaminate the

aquifer. Rather, Van Hook felt that the area is "sensitive" to groundwater contamination and there are "better"

sites in Kendall County for a landfill. (Tr. 1357-1363, 1385-1386, 1465) The case law makes clear that

whether

or not there may be "better" sites is irrelevant for purposes ofthe criterion

2

determination. Beyond

that, Van Hook admitted on cross-examination that the author

of the material upon which he based his

opinion about better sites, the so-called "Berg report", specifically advises that this material should not be

used for evaluating a specific proposed landfill site. (Tr. 1405-1407) In the final analysis, Van Hook's

testimony seems to have been aimed more toward arguing in favor of some other site in Kendall County,

rather than on whether or not the applicant for this site had met its burden with respect to criterion

2.

22

Norris did not claim that Underwood misrepresented the data she gathered and reviewed, or that she

misrepresented site conditions. He merely disagreed with her interpretation

of the data. (Tr. 1581) Yet like

Van Hook, Norris did not ask to obtain access to the samples Underwood examined. (Tr. 1582) Norris was

also aware that Underwood took a number of new core samples, but he did not ask for access to those either.

~Tr.

1582-1583)

3

Norris felt that the County Board should not even consider the GIA modeling. (Tr. 1550-1551)

Notably, in response to questions from Hearing Officer Kinnally, Norris admitted that he had not read the

County Siting Ordinance, "the operative document that the County Board utilizes in this proceeding to

determine whether the Applicant meets the nine criteria ...

", and which does not require a GIA. (Tr. 1584-1585)

We are left wondering what the point

of Norris' testimony really was. When asked directly whether it was his

opinion that the liner system and other engineered components of the landfill would not be protective

of the

public health, safety and welfare, he admitted that he had no opinion one

way or the other. He was then

asked whether it was his opinion that the proposed facility does not comply with criterion

2. Norris again had

"no opinion one way or another on that." (Tr. 1583)

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Irrespective of the GIA, Underwood considered any potential impact on potable wells

in the area and concluded that there would be no impact on the wells, or on the aquifer,

from the landfill. (Tr.

561)

This conclusion was based on the results of her geologic and

hydrogeologic investigation, and the following factors:

(Tr.

556-558)

a.

Many of the private wells are upgradient (north or northwest) of the

site, whereas groundwater flow is to the southeast, so they would not

be in the pathway

of any theoretical leak.

b.

As for the downgradient wells, Underwood examined the well

construction data together with the information concerning the

hydrogeologic characteristics

of the area to conclude that those wells

would not

be at risk from the landfill. The aquifer is naturally protected

by the confining layer.

c.

The design of the landfill is itself protective.

C.

Groundwater Monitoring System

As noted, groundwater flow at the site is generally from the northwest to the

southeast. The proposed groundwater monitoring plan includes both upgradient and

downgradient monitoring wells. This includes 33 wells around the landfill. This was based

on a well spacing model which

in turn took into account the site geologic and hydrogeologic

conditions. (Tr.

558-561)

Given the totality of the evidence, and the failure of the opposing witnesses to rebut

the evidence submitted by KLC/WMI, it

is our opinion that KLC/WMI has met its burden with

respect

to criterion 2, subject to the following conditions, which we believe to be

reasonable:

2.1

The domestic well protection program in the Host Agreement shall be

extended to 3 miles from the property boundary, effective through the closure

and post closure period.

2.2

Downgradient groundwater monitoring

wells (on the east and south sides

of

the landfill) shall be spaced no more than 300 feet apart.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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2.3

KLC/WMI shall install a groundwater monitoring well,

in addition to the 33

provided for

in the Application, on the northern portion of the east side of the

landfill, 300 feet north

of the northernmost well currently proposed.

2.4

All gas extraction wells shall be placed

in underground vaults.

2.5

The secondary containment system for the leachate holding tanks shall

incorporate a synthetic liner,

in addition to low permeability clay.

2.6

The site access road shall be paved, including curb and gutter, for the first

2,000 feet starting at the entrance to the facility

at Whitewillow Road and

extending east past Walley Run.

2.7

Curb, gutter, and liquid runoff collection sumps shall be installed on the

bridge crossing Walley Run to collect and manage any impacts from vehicle

fluid leaks and soils being tracked onto the roadway.

Criterion 3:

the facility is located

so as

to minimize incompatibility with the

character

of

the surrounding area and to minimize the effect on the value

of

the

surrounding property:

There are, or course, two parts to this criterion, and KLCIWMI presented three

witnesses on the issues: Joseph Duffy ("Duffy") with Rolf C. Campbell & Associates and

David Yocca ("Yocca") with Conservation Design Forum regarding incompatibility, and

Peter Poletti ("Poletti") on property values. The important thing to remember regarding both

parts

of this criterion is the word "minimize". It is clear from the use of this word that the

statute presumes incompatibility with the surrounding area and some negative impact on

property values.

24

Thus, for example, the court in

File v. D&L Landfill,

219 III. App. 3d 897,

907 (5th Dist. 1991), held that:

24

An applicant must demonstrate that it has done or will do what is

reasonably feasible to minimize incompatibility. *** It is important to

note, however, that the statute does not speak

in terms of

guaranteeing no increase of risk concerning any of the criteria.

This is consistent with Hearing Officer Kinnally's rulings during the hearing. (Tr. 879-880, 1084-1085)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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See also

American Bottom Conservancy v. City of Madison,

PCB 07-84, 2007 WL

4330914, Slip Op. Cite at 45 (IPCB December 6,2007);

Sierra Club v. Will County Board,

PCB 99-136, 99-139, 1999 WL 632548, Slip Op. Cite at 23 (IPCB August 5, 1999).

Similarly, the court

in

Clutts v. Beasley,

185 III.App.3d 543, 547 (5

th

Dist. 1989) held:

As to property values and better places,

the law requires only that

the location minimize incompatibility and effect on property

values,

not guarantee that no fluctuation will result; nor does the

statute require the facility to be built in the "best" place, and

rightly so for that is so subjective as to give no guidance at all to those

who must decide these issues. [Emphasis added]

A.

Minimize

Incompatibility

The proposed facility totals 368 acres, with a landfill footprint of 134 acres and a

maximum height of

181 feet. The site life is 14Y2 years. (Tr. 78-79) Even before the criterion

3 witnesses testified, KLCIWMI established certain significant steps that

had been taken to

minimize incompatibility. Specifically, as compared to the 2007 proposal, the proposed

facility is less than half the footprint, over 50 feet shorter,

and has a 20-year shorter site life.

(Tr. 78-79)

Beyond this, Duffy conducted a three-tier review

of the area surrounding the site --

within 1000 feet, within one mile and within five miles. Duffy testified that the substantial

majority

of the surrounding land uses are agricultural. (Tr. 830-832) In the fields of urban

and regional planning, screening and buffers are used to reduce the impact

of an

incompatible use on surrounding properties. Those types

of features are proposed here

through a landscape plan. (Tr. 833-834, 846-848, 854) The features

of the proposed

landscaping, buffering and screening plan include clustering and grouping

of trees, densely

planted landscaping, and construction

of berms. (Tr. 835-839) The landscape plan takes

into account the phased development

of the landfill, and was prepared in consultation with

the design engineers. (Tr. 869-870)25

25

Much was attempted to be made during the hearing about the fact that the proposed landscape plan

is essentially conceptual, and does

not reflect a construction quality plan. (Tr. 853-854, 867, 874-875) Yocca

confirmed that a detailed construction drawing for all

of the landscape features and specific quantities and

specifications for all

of that plant material is something that would be developed as part of the final design

Electronic Filing - Received, Clerk's Office, April 10, 2009

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Based on the low-density agricultural uses

in the area, and the provisions of the

landscaping plan, Duffy was of the opinion that the facility satisfied the first portion

of

criterion 3. (Tr. 846-848)

There was a troubling aspect to Duffy's testimony. He acknowledged that this is the

first time that he has independently conducted a criterion 3

analysis and rendered an

opinion on the subject. (Tr. 849) This lack

of experience was reflected in Duffy's

unfamiliarity with the siting process. (Tr. 893, 930-931, 934-939) While this lack

of

familiarity with the siting process is disturbing, it does not detract from the adequacy of the

information presented.

26

Moreover, any perceived shortcomings in Duffy's testimony were

more than ably compensated for by Yocca.

Yocca is a land planner and landscape architect, with extensive experience in his

field. (Tr. 941-946) Yocca was retained to evaluate and make recommendations for the

landscaping and screening plan and to review

and make recommendations for sustainable

strategies as they relate to the landscaping and screening plan. (Tr. 947) Yocca provided

substantially more specificity with respect to the plans, including the concepts and

strategies upon which the landscape design

is based (Tr. 948-958); how those concepts

and strategies were applied to this landfill, specifically focusing on features to transition and

buffer the impact of the facility on surrounding properties (Tr. 958-963); specific plantings in

the different areas of the facility (Tr. 963-969); and final cover plantings. (Tr. 969-971)

Yocca also identified the many benefits

of the sustainable development concepts in the

landscaping plan. (Tr. 971-973) All

of these eleme.nts, and specifically the proposed

berming, landscaping, and setbacks, led Yocca to the conclusion that the facility does in

fact minimize incompatibility with the character

of the surrounding area. (Tr. 973-975)

engineering of the facility. (Tr. 984) Further, as noted by Hearing Officer Kinnally, the County Siting Ordinance

does not require any more than what was submitted. (Tr. 1346-1347)

26

We do not believe Duffy's lack of siting experience to be a relevant question, Whether or not a

witness is technically an "expert" does not discredit otherwise persuasive evidence.

Waste Managemenf of

Illinois, Inc.

v.

Illinois Pollution Control Board,

123 III.App.3d 1075, 1086 (2

nd

Dist. 1984)

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B.

Minimize Effect On Property Values

Poletti is an experienced appraiser and real estate professional with extensive

experience

in siting proceedings. (Tr. 1053-1055, 1059, 1068-1070) Poletti based his

opinion regarding minimization

of the effect on property values on the property value

protection program in the Host Agreement,27 the low density uses in the area, and the

screening, buffering, setbacks and landscaping that would provide a transition from existing

uses

to the proposed use. (Tr. 1057-1059, 1077-1078, 1119-1120) Poletti's report, included

in the Application, also reflects a study of the literature in the area and a review of property

value impacts from other landfill sites.

The type

of evidence presented here has, in other cases, been found to establish

compliance with criterion 3. See,

e.g., Fairview Area Citizen's Taskforce v. Illinois Pollution

Control Board,

198 III.App.3d 541, 553 (3

rd

Dist. 1990) See also

A.R.F. Landfill, Inc. v. Lake

County,

PCB 87-51,1987 WL 56293, Slip Op. Cite at 19-20 (IPCB October 1,1987):

Criterion No.3 calls for a proposal to minimize its effects - but does

not allow for rejection simply because there might be some

consequential reduction in value. Petitioner, via its plans to install

screening berms, utilize setbacks and landscape around the area,

does indeed minimize any impacts to be expected in the area.

The Application and the testimony establish reasonable efforts to minimize the

effects from the landfill, particularly the berming, planting and screening plans.

In addition,

the property value protection program contained

in the Host Agreement with the County

further minimizes the impact on

prop~rty

values by compensating property owners for that

impact. With that being said, there are certain conditions which we believe are reasonable,

and would further minimize the impact

of this facility, some of which have been agreed to

by WMI/KLC. It is therefore our opinion that KLC/WMI has satisfied the requirements of

criterion 3 with the implementation of the following special conditions:

27

Poletti testified that the property value protection program addresses those impacts that cannot be

measured at this pOint in time. It is intended "to make that person whole

if they do want to sell if there is some

impact and we just can't measure it." (Tr. 1075-1076)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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3.1

Implementation of a long term operations and maintenance and plant

warranty/replacement program.

3.2

Implement a planting program to include vertical plantings, consistent with

W

.1.2

of the Host Agreement.

3.3

Include a mixture

of mature species for immediate buffering of landfill phases

1 and

2.

Timing of berming and planting shall be designed to ensure planned

maturity consistent with phasing development plan.

3.4

Provide for screening, planting and buffering on the south side of the landfill

equivalent to that proposed for

the north side of the landfill.

28

3.5

Implement the Conservation Design Forum alternate proposal for the western

portion

of the facility (relating to the entrance drive and support facilities west

of Walley Run).29

3.6

In conjunction with the implementation of the alternate design, KLCIWMI, and

their successors and assigns, will never seek to expand the landfill to the

western portion

of the facility.

3.7

Pursuant to stipulation, KLC/WMI, and their successors and assigns, will

never seek to expand the landfill north

of Whitewillow Road.

3.8

Extend property value protection program in the Host Agreement to 1.5 miles

from the landfill footprint.

28

Duffy testified that this was not part of the siting application because it was felt that the 25-foot berm

on

the south side, coupled with the

%

mile setback from Sherrill Road, adequately minimized the impact to the

south. (Tr. 854. 862-863. 900, 977-978) Nevertheless, both Duffy and Yocca agreed that this would be a

reasonable condition on siting. (Tr. 931-932.1036-1037)

29

Yocca pointed out that this design creates a larger, uninterrupted, contiguous prairie restoration area.

In ecological terms, this results in a less fragmented landscape with a greater potential for health and diversity

overtime. (Tr. 1037-1039)

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Criterion 4:

(A) for

a

facility other than

a

sanitary landfill or waste disposal site, the

facility is located outside the boundary

of

the 100 year flood plain or the site is flood-

proofed;

(8)

for

a

facility that is

a

sanitary landfill or waste disposal site, the facility

is located outside the boundary

of

the

1

DO-year floodplain, or if the facility is

a

facility

described in subsection (b)(3)

of

Section 22.19a, the site is flood-proofed:

This criterion does not require evidence of the exact location of the nearest flood

plain, it only requires evidence that the facility will not be in the flood plain.

Tate v. Illinois

Pollution Control Board,

188 IILApp.3d. 994, 1023 (4th Dist. 1989) Nickodem testified that

the facility is not in or near a 1 OO-year flood plain. This testimony was based on data from

the Federal Emergency Management Agency ("FEMA"). (Tr. 148-149) This testimony was

not rebutted, and this criterion has been satisfied.

Criterion 5:

the plan

of

operations for the facility is designed to minimize the danger

to the surrounding area from fire, spills, or other operational accidents:

Here, again, the statute establishes "minimize" as the standard to be achieved. The

statute clearly recognizes that any facility like this will create some risk, and a guarantee

that there will be no risk is not required. See

Industrial Fuels

&

Resources/Illinois, Inc. v.

Illinois Pollution Control Board,

227 IILApp.3d 533, 547 (1 5t Dist. 1992);

City

of

Rockford v.

Illinois Pollution Control Board,

125 IILApp.3d 384, 390 (2

nd

Dist. 1984). See also

Wabash

and Lawrence Counties Taxpayers and Water Drinkers Association v. PCB,

198 IILApp.3d

388, 394 (5

th

Dist. 1990):

With respect to the fifth criterion, the Association contends KlC failed

to establish its plan of operations is designed to minimize the danger

to the surrounding area from operational accidents. The key, here,

however is minimize. There is no requirement that the applicant

guarantee no accidents will occur, for it is virtually impossible to

eliminate all problems. (See

Tate,

18811LApp.3d at 1024, 136 ilL Dec.

at 421, 544 N.E.2d at 1196.)

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Dale Hoekstra ("Hoekstra") was KLCIWMl's witness with respect to landfill

operations.

3o

Hoekstra's testimony as to this criterion was both thorough and credible. This

included testimony with respect to waste acceptance parameters (Tr. 394-395); waste

acceptance procedures, including inspection procedures (Tr. 395-397); waste

placement

procedures, including phased landfill development, placement

of select waste and daily

cover operations (Tr. 397-403, 408-418); litter, odor, dust, and mud control (Tr. 404-408,

432-433); and fire prevention and control plan, spill prevention and control plan, accident

prevention control plan, which includes health and safety and emergency action plans, and

facility security around the site. (Tr. 422-427)

Hoekstra

also addressed the bird control plan for the facility, comparing it to the plan

utilized historically at the Settler's Hill landfill, which

is located very near the DuPage

County Airport. (Tr. 421-422) According to Hoekstra, the

bird control measures worked well,

and there was never a reported aircraft related incident resulting from any activity at the

Settler's Hill landfill. (Tr. 422, 455-456)

Bird strikes were the primary subject addressed by the Village

of Morris and its

witness, Jeff Vogen ("Vogen"), the manager of the Morris Airport. There was a general

stipulation during the siting hearing that birds striking airplanes can cause damage

or

personal injury. (Tr. 1592-1593) But that is not the relevant question. Was there evidence in

the record that this facility, irrespective

of the bird control measures proposed to be

implemented, would increase the risk

of bird strikes to the extent that the public health,

safety and welfare would not be protected? Hearing Officer Kinnally stated the issue most

succinctly in discussing the evidence sought to be introduced by Morris:

30

I don't see anything in the materials that you submitted that indicate

any

of this information had anything to do with a bird strike near a

landfill. I think we all know that birds strike airplanes. Mr. Vogen has

told us that time and time again. I don't think that is disputed. The

relevance is whether

or not the information that you are seeking to

admit here has anything to do with a bird strike by a landfill.

This relates to both criterion 5 and the operations portion of criterion 2.

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{Tr. 1670} Despite Vogen's efforts, the evidence on this issue was in fact to the contrary.31

Vogen's failure to provide any credible evidence on this issue was highlighted by the

evidence regarding the DuPage Airport. Morris Exhibit 29 was a listing

of reported bird

strikes from DuPageAirport from 2001 to 2008. {Tr. 1645-1647}32 Vogen stated that Morris

Exhibit 29 showed "that the DuPage Airport does have a bird problem." But Vogen also

admitted that he did not provide any evidence that any of the incidents resulted from birds

on

or near Settler's Hill. (Tr. 1699-1702) Indeed, Vogen admitted that DuPage Airport is

ringed by bird attractants, such as golf courses and ponds. {Tr. 1707 -1709} Bird strikes at

the DuPage Airport

in fact increased after Settler's Hill closed. (Tr. 1738-1739; Morris

Exhibit 29) Vogen eventually admitted that none of the bird strike examples that he

provided had anything to do with an operating landfill or the movement of a bird from a

landfill. (Tr. 1714)

Notably, the Environtech Landfill is located less than three miles from the Morris

Airport. That landfill has been operating for over 20 years. (Tr. 1711-1712) Planes fly over

the Environtech Landfill, and there are gulls at the landfill. Yet the Morris Airport has never

had any bird strikes. {Tr.

1720)33 Rather, Morris' Mayor Kopczick stated that the

Environtech Landfill has been

"a good neighbor". (Tr. 1768)

Hoekstra's testimony was complete and thorough, and the evidence presented leads

to our conclusion that KLelWMI has satisfied this criterion. Nevertheless, there are a

31

Ultimately, Vogen could only identify one potential incident where a bird strike occurred at an airport

at

or near an operating landfill. This involved an incident at Kennedy Airport. Yet he could not identify the

landfills in question, did not know when they were constructed, and did not know whether the landfills had any

bird control plans or similar procedures in place to minimize bird activity. (Tr. 1712-1714) Most recently,

Vogen submitted a multi-page document as public comment. This document includes a description

of the

subject incident, which occurred in 1975 (before the implementation of the subtitle 0 regulations). Notably, the

document states that the National Transportation and Safety Board identified "ineffective control of bird

hazards by the airport as one

of the contributing factors to the accident.. (Emphasis added)

32

The DuPage Airport is located less than 10,000 feet from the Settlers Hill landfill. It is also a general

aviation airport. In Hoekstra's experience, it was not uncommon for flight patterns to the DuPage Airport to

pass directly over the Settler's Hill landfill. (Tr. 419-420) Indeed, DuPage Airport extended its runway closer

to

Settler's Hill while the landfill was still operating. (Tr. 1703-1704, 1717-1718) Vogen could not explain why.

given his view of the risks, DuPage Airport extended their runway closer to Settler's Hill, and the FAA

approved that extension. (Tr. 1732-1734)

33

Morris Airport is also in the Mississippi flyway. (Tr. 1721)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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environmental law

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number of special conditions that we believe are reasonable and necessary in this context.

These conditions are:

5.1

Provide an on-site back-up generator for leachate and gas collection

systems.

5.2

Establish and maintain back-up agreements for leachate treatment and

disposal at primary and at least one back-up facility (commercial industrial

treatment facilities or other treatment works).

5.3

A dedicated wheel wash facility shall be provided along the egress route of

the internal landfill road, and will be utilized during times when muddy site

conditions exist. A plan shall be implemented to control and collect runoff

from this facility.

5.4

A high wind closure protocol shall be developed and submitted to the County

for comment and approval.

5.5

Implement a daily litter control plan that will, at a minimum, include litter

pickup to a 3-mile radius from the facility boundary.

5.6

Loaded waste vehicles shall not remain on site overnight or on weekends.

Staging

of loaded waste vehicles shall not exceed 1/2 hour.

5.7

Establish an outbound truck inspection and cleanout program providing, at a

minimum, inspection of all outbound trucks and cleanout as necessary, and

requiring that a dedicated outbound inspection and cleanout station be

established. A plan shall be implemented to control and collect runoff from

this facility.

5.8

Retain and maintain available, at all times, an emergency response

contractor.

5.9

Obtain review and approval

of Fire Prevention and Control Plan by Lisbon-

Seward Fire Protection District.

5.10 Conduct orientation and training programs for Lisbon-Seward Fire Protection

District.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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environmental law

November 5, 2008

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31 of 37

5.11 Inbound truck inspection protocol shall provide for the inspection of a

minimum

of 3 random loads per day during the placement of select waste in

the first five feet above the liner system

in each cell.

5.12 Construction and demolition debris, both "general" and "clean", shall not be

placed within the first five feet above the liner system

in each cell.

5.13 The facility shall comply with all statutory requirements and Federal Aviation

Administration regulations relating to the proximity

of the landfill to the Morris

Municipal Airport.

Criterion 6:

the traffic patterns

to

or from the facility are

so

designed

as to

minimize

the impact on existing traffic flows:

The operative word here, again, is "minimize", and the statute does not require

elimination of all potential impacts. See

Tate v. Illinois Pollution Control Board,

188

III.App.3d. 994, 1024 (4

th

Dist. 1989) It is also important to keep in mind that the focus is on

existing traffic flows. Thus, prospective events that may result in a change to existing traffic

flows cannot be considered. See

Industrial Fuels

&

ResourceS/Illinois, Inc. v. City Council

of

the City

Of

Harvey,

PCB 90-53, Slip Op. Cite at 18 (September 27, 1990), reversed on

other grounds, 227 III.App.3d 533

(1

st

Dist. 1992) See also

File v. D&L Landfill, Inc., 219

III.App.3d 897, 908 (5

th

Dist. 1991):

The final criterion which the parties dispute is whether the traffic

patterns to or from the facility are so designed as to minimize the

impact on existing traffic flows. This criterion does not refer to traffic

noise or dust, nor does it relate to the potential negligence

of the truck

drivers.

(Tate v. Illinois Pollution Control Board

(1989), 188 III.App.3d

994, 1024, 136 III.Dec. 401, 421, 544 N.E.2d 1176, 1196.) The

operative word

is "minimize", and it is recognized that it is impossible

to eliminate all problems.

Tate,

188 III.App.3d at 994, 136 III.Dec. at

421, 544 N.E.2d at 1196.

The evidence

in the instant case supports the findings of the county

board and the Pollution Control Board that D

&

L Landfill, Inc. has

made a reasonable effort to minimize the impact of the expanded

landfill on existing traffic flows. Indeed, existing traffic flows will be

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environmental law

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impacted only slightly as all trucks entering or leaving the landfill will

be using the existing entrance. Any impact on existing traffic flows will

result only from any increase

in traffic which, according to the

evidence, should not be substantial.

The facility

is proposed to be located generally at the northwest corner of

Whitewillow and Ashley Roads. KLCIWMl's traffic witness, David Miller ("Miller"), confirmed

that primary access to the facility by waste transfer trailers (semi trucks) would be from the

south, via Interstate 80 to Route 47 to Whitewillow Road. Approximately 50%

ofthe smaller

waste vehicles, such as roll-offs and packer trucks, would approach the facility from the

same direction, and the other 50% from the north. (Tr. 1209-1212) Miller analyzed the

roadway system

in the vicinity of the proposed facility. (Tr. 1195-1197) He also conducted

manual traffic counts, factoring in facility traffic volumes, and performed a roadway capacity

analysis, an intersection capacity analysis, a sight distance study and a gap analysis. (Tr.

1197-1205,1212-1223)34

Miller also recommended that certain roadway improvements should be

implemented. These include the following:

1.

Upgrading of Whitewillow Road from Route 47 to the facility entrance,

to accommodate 80,000 pound vehicles.

2.

Widen Whitewillow Road as it approaches Route 47 from a single lane

approach to two lanes, creating a separate left turn lane and a

combination through and right turn lane.

3.

Addition of an eastbound right turn lane at the facility access drive and

an improvement of the radius there to better facilitate the larger

vehicles that would be turning into the site.

4.

Installation of a southbound left turn lane on Route 47 to go east on

Whitewillow Road.

34

Miller also considered potential future uses on Route 47 that may be under consideration by Kendall

and Grundy Counties. He stated that he included a 3% annual traffic growth factor to take these potential

developments into account. (Tr. 1205-1207)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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environmental law

November 5, 2008

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5.

Increasing the length of the existing taper and storage length in the

rightturn lane northbound on Route

47 at Whitewillow Road, and a re-

working

of the radius at that intersection.

6.

New signage, including installation of truck symbol signs on Route 47

both north and south

of Whitewillow Road for traffic approaching that

intersection; the same signage on Whitewillow Road both east and

west

of the site; and a new stop sign on the facility access drive as it

intersects Whitewillow Road.

(Tr.1223-1225)

Based on

all

of this information, Miller was of the opinion that the traffic patterns to

and from the facility have been designed so as to minimize any impact on existing traffic

flows. (Tr. 1225-1227) We agree, with the inclusion

of Miller's proposed improvements and

the following, which we believe to be reasonable and necessary:

6.1

All physical improvements shall be subject to the design standards,

review and approvals

of the Kendall County Highway Department and,

where applicable, the Illinois Department

of Transportation.

6.2

KLCIWMI shall conduct geotechnical surveys of the existing pavement

(pavement cores) and underlying soils at Whitewillow Road to

determine support strength for structural thickness calculations.

Pending such surveys, for purposes of establishing preliminary

pavement improvement conditions, a minimum Structural Number of

4.0 shall be established based on projected daily landfill truck

generation and minimal underlying soil support. requiring a minimum

4-inch bituminous structural overlay

of the existing roadway (with

reflective crack control treatment on top of the existing pavement).

6.3

Widen and resurface Whitewillow Road between Route 47 and the

landfill site access to provide a minimum 28-foot bituminous surface

with a 4-foot aggregate wedge on each side. The resulting surface

area will. be striped to provide two (2) 12-foot lanes with a minimum 6-

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environmental law

November 5, 2008

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foot shoulder consisting of a 2-foot width of full-depth bituminous

pavement and the 4-foot aggregate shoulder. Centerline striping,

edge-line striping

and raised reflective pavement markings shall be

required.

6.4

Signs

shall be posted at appropriate intervals along Whitewillow Road

prohibiting landfill truck standing or parking (particularly from Ashley

Road east to the landfill site access drive). Warning signs shall be

posted

in advance (and on either side) of the landfill entrance

indicating truck turning activity. A street signing plan shall be

submitted to the Kendall County Highway Department for approval.

6.5

The southbound left-turn lane

on Route 47 at Whitewillow Road will be

constructed

in accordance with the Illinois Department of

Transportation ("IDOT') Bureau of Design and Environment ("BDE")

criteria. This intersection widening and resurfacing shall provide for

retention

of the existing northbound right-turn lane on Route 47 at

Whitewillow Road. KLCIWMI shall prepare

an Intersection Design

Study ("IDS")

in support of this widening for submittal to Kendall

County and IDOT District

3, with the IDS design (including turn lane

storage) based on future signalization

of the intersection.

6.6

The right-turn lane on Whitewillow Road at Route

47 will be

incorporated into the IDS prepared for the Route 47 left-turn lane

improvements.

6.7

Retain a traffic consultant to monitor the Route 47/Whitewillow Road

intersection annually beginning the Spring after the first full year

of

landfill operation, plus a 3-year crash history through date of the

annual traffic report. 12-hour turning movement counts shall be

collected and a signal warrant ("justification") analysis performed

in

each annual review and submitted to the Kendall County Highway

Department for initial review. The signal warrant analysis shall

Electronic Filing - Received, Clerk's Office, April 10, 2009

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environmental law

November 5, 2008

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evaluate both Manual

of Uniform Traffic Control Devices ("MUTCD")

and Strategic Regional Arterial ("SRA") criteria and shall include

measurement of average vehicle delay during the morning and

evening peak periods. When traffic signals are "justified" (authorized)

by IDOT, KLCIWMI shall install fully-actuated traffic signals at

Whitewillow Road/Route 47 (which may include, as required by IDOT,

interconnect to adjacent existing signals).

Criterion 7:

if the facility will

be

treating, storing or disposing

of

hazardous waste,

an

emergency response plan exists for the facility which includes notification,

containment and evacuation procedures

to be

used in

case of an

accidental release:

This criterion does not require extensive discussion. Nickodem and Hoekstra's

uncontroverted testimony was that this facility will not accept regulated hazardous waste.

(Tr. 149, 395) This criterion is therefore not applicable.

Criterion

8:

if the facility is

to be

located in

a

county where the county board has

adopted

a

solid waste management plan consistent with the planning requirements

of

the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling

Act, the facility is consistent with that plan; for purposes

of

this criterion (viii), the

"solid waste management plan" means the plan that is in effect

as of

the date the

application for siting approval is filed:

This criterion, by its terms, requires an examination of the Kendall County Solid

Waste Management Plan ("SWMP") in effect as

of June 3, 2008, the date the Application

was filed. "Consistent" has been viewed as requiring that the proposed facility not be

"inapposite

of' the SWMP. See

City

of

Geneva v. Waste Management

of

Illinois, Inc .•

PCB

94-58, Slip Op. Cite at 16 (July 21, 1994)

The SWMP was included

in the Application. Les Pollock ("Pollock") confirmed the

contents of the current SWMP. and that those contents are the basis for his opinion that the

facility is consistent with the SWMP and, therefore, satisfies criterion

8. (Tr. 1281-1282)

Electronic Filing - Received, Clerk's Office, April 10, 2009

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environmental law

November 5, 2008

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Based on the contents

of the SWMP and Pollock's testimony, it is our opinion that

KLCIWMI has satisfied criterion

8.

Criterion 9:

if the facility will

be

located within

a

regulated recharge area, any

applicable requirements specified by the Board for such areas have been met:

This criterion, like criterion 7, does not warrant extended discussion. Nickodem

testified that the subject facility would not be located

in a regulated recharge area, and that

the only such area in the State is located near Peoria. (Tr. 149-150) This testimony was not

rebutted, and this criterion is therefore not applicable.

III.

CONCLUSION

In summary, as stated at the beginning

of this memo, it is our opinion that KLCIWMI

has satisfied its burden

of proof with respect to all of the siting criteria, but we recommend

adoption

of the conditions for each of the criteria where conditions are proposed.

I feel compelled to turn to a more personal commentary. This is by no means an

easy recommendation for me to make. No one with an ounce

of intelligence or compassion

can fail to be moved by the sincere and heartfelt sentiments

of good and decent people like

Cheryl Wallin and Beverly Anderson,

or by the quiet eloquence of Jean Fletcher.

35

But we cannot ignore a fundamental underlying principle here. It has often been said

that

we are a society of laws, not men (or women). In a civilized society those laws have to

mean something,

or we risk lapsing into anarchy. In a situation like this landfill matter, this

means that fundamental fairness is a two-way street - applying with equal force to the

applicant and to opponents. It also means that those in positions

of authority have to be

willing to make unpopular decisions, not

just the popular ones, in the name of the rule of

law.

I can certainly understand

why some would feel put upon by the burden of this siting

process - asking why the IEPA can't handle it. But I have been personally involved for the

35

On the other hand, I discount "comments" from those motivated by personal animus or political

agendas.

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environmental law

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last several years

in an environmental disaster that is, at least in part, the result of

unbridled decision making authority at the State level, with no local input. So however

unsatisfactory the current system may

be, I can assure you that the alternative is (and was)

much worse. You have a host agreement that gives you unparalleled authority and

oversight over this facility. It also imposes equally unique obligations on the operator - in

perpetuity. You will not have to suffer the unchallengeable decisions of nameless, faceless

bureaucrats in Springfield. The control will be

in your hands, and those who come after you.

So the law must be followed, and in this case the limits

of your discretion are

constrained by the words

of the statute that you are charged with applying. I suppose it

would be convenient, or politically expedient, if you could just say "no, because my

constituents don't want it". But you do not have that option. You are charged with applying

the law, not ignoring

it.

Respectfully submitted

Jeep

& Blazer, LLC

By:

____________________ __

Michael S. Blazer

Electronic Filing - Received, Clerk's Office, April 10, 2009

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EXHIBIT A

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

IIJ\8)) IIJ\'"

SI~U'Tlfl~Sl'M

Engineering. Construction and Management Solutions

MEMORANDUM

Date:

To:

Company:

From:

Subject:

September 11, 2008

Mike Blazer

Jeep

&

Blazer

Stuart H. Russell

Kendall County, Review

of Willow Run 2 Application

I have reviewed the subject Site Location Application for the Willow Run Recycling and Disposal

Facility dated June 3, 2008 (Willow Run 2). My review focused on the design aspects

of the Criterion

2 evaluation. For consistency with our earlier testimony on the first Willow Run application dated

February 5, 2007 (Willow Run 1), I have structured my review around the design issues identified for

Willow Run

1, and analyzed the Willow Run 2 application to determine if these earlier issues were

resolved in the new application.

Design Compatibility with Site Location

Willow Run

1:

The hydrogeological setting is sensitive because the upper aquifer (Upper and Lower Wise Lake) is

fractured and connected

to the lower aquifer, and because numerous private drinking and agricultural

wells are in use in the vicinity that draw water from the upper and lower aquifers. Further, the

Willow Run

I

location had relatively little thickness of overlying low-permeability soils (7 to 20 feet),

creating a shortage of on-site soils to construct the landfill. Another design compatibility issue raised

during the Willow Run 1 hearing was the encroachment

of the proposed B5 alignment of the Prairie

Parkway into the proposed landfill footprint.

Willow Run

2:

The current application proposes a site that incorporates a portion of the Willow Run 1 site, but the

development is limited

to the eastern portion of the original site that has the greatest overlying native

soil thickness. The current design shows the entire waste footprint east

of Walley Run Creek. The

application still calculates the need to import a significant amount of off-site materials, but the site is

smaller, so the need for these materials is reduced compared to Willow Run 1. In addition, the current

design shows a layout that appears

to be entirely outside the proposed Prairie Parkway alignment.

Bottom Liner Construction Depth

Willow Run

1:

The first application specified bottom liner grades that were within the Upper Wise Lake Aquifer

(about 35% by area, mostly on the west side), and would have had an inward groundwater gradient in

these areas. This design would have required a significant amount

of blasting or ripping to remove

the limestone bedrock to construct the bottom liner of a number of cells.

Willow Run

2:

The new proposed design shows a much smaller footprint (about half of the size of Willow Run I),

and the bottom liner system design includes excavation grades that are all above the bedrock,

including the leachate sumps. Native clay

of five feet or greater is maintained above the bedrock in

the current design. The southeastern portion

of the landfill is proposed to be constructed above the

current ground level.

---

Bottom Liner Design Elements

Willow Run

1:

The first application proposed a double composite bottom liner design with two 60-mil geomembrane

liners with a GCL between, and a 3-foot layer

of compacted low-permeability (Ix 10-

7

cm/sec) clay

beneath. The liner system was topped with a one-foot thick drainage layer with a 4

oz/SY

geotextile

filter layer on top. Our testimony on the Willow Run 1 application was that the liner system needed

certain modifications

to be acceptable, including;

1. An electronic leak detection system due to the placement of the bottom liner system within the

aquifer;

2. A 12 to 18-inch soil layer between the geomembranes for puncture resistance; and

3.

An 8 oZ/SY geotextile filter on top of the drainage layer, instead of the 4

oz/SY

fabric.

Willow Run

2:

The current proposed design is similar, but includes two new important elements. First, the design

leaves at least 5 feet (and more thickness for most

of the footprint) of native clay below the bottom

liner system in addition

to the other liner elements. This native material is indicated in the soil

borings to have low permeability properties and provides an additional safety factor in preventing

contaminants from entering the aquifer below the site. Second, the new design proposes the

installation

of a 16

oz/SY

geotextile cushioning layer on top of the upper geomembrane liner prior to

placing the one-foot drainage layer. The application provides calculations showing that this

cushioning layer has the tensile strength and puncture resistance needed to protect the upper

geomembrane. In addition, the application provides calculations demonstrating that the 4 oZ/SY filter

geotextile layer above the drainage layer is adequate to prevent fine-grained materials from damaging

the drainage layer function. For these reasons, we believe that the liner system modifications

proposed

in our testimony for Willow Run 1 can be eliminated in this current design.

Landfill Finished Height and Footprint

Willow Run

1:

The old design proposed a peak elevation of 815 ft. above MSL, or 235 feet higher than the existing

grade

of 580 ft. above MSL The land area of the waste footprint was proposed as 282 acres,

containing about 30 million cubic yards

of solid waste at completion. We testified that this height and

waste footprint was unusually large compared to other landfills in northern Illinois, and should

be

modified. We proposed that the height be limited to 765 ft. above MSL, or 50 feet shorter.

Willow Run 2:

The new design has a much smaller waste footprint at 133.54 acres with about

15 million cubic yards

of solid waste at completion, and has a significantly lower finished height at 757 ft. above MSL, or

177 feet above existing grade. This new design height is lower than the proposed limitation

recommended for Willow Run

1.

Willow Run I:

The old design oriented the cells and the 8-inch perforated leachate collection gravity lines in a North-

South configuration, creating drainage line runs

of about 1,800 feet with clean-out access only on the

south side. The design also showed single-wall piping for the leachate sump discharge force mains.

We testified that the County should impose certain modifications

to this design on the applicant;

---

1. Place cleanout access at both sides of the landfill to reduce the length of clean-outs for

leachate collection pipe runs. A shorter run will make jetting for clogged collection pipes

more easily accomplished; and

2. Construct all leachate force mains with double-walled pipe to prevent leakage, and provide a

method

to detect leaks without release of the leachate.

Willow Run 2:

The new design shows the cells and leachate collection piping oriented in the east-west direction with

clean-out access on both sides

of the landfill. The suggestion of clean-out access at both ends of the

gravity leachate collection pipe runs was incorporated in the new design, however, the pipe run

lengths are significantly longer than the Willow Run 1 design. The lengths vary between about 2,800

and 3,800 feet at completion

oian cells. We should ask the applicant to describe what equipment will

be used to clean out these long pipe runs should one or more

of them become clogged, and if this

equipment is capable

of jetting or cleaning at these lengths.

Surface Water Management

Willow Run I:

The first application proposed a design that required the diversion

of Walley Run Creek around the

landfill footprint in a "Bioswale." The application also lacked detail about how the construction

of

the landfill would impact local drainage. We testified that the design should be modified to reduce

the number

of 90-degree turns in the Bioswale, and incorporate methods to reduce sedimentation in

the Bioswale.

Willow Run

2:

The current design does not propose to divert or modify Walley Run Creek. The application also

describes design elements that will reduce the flow

of water in the regional drainage system during

storm events that should reduce the occurrence

of flooding after completion of the construction. The

application includes supporting

flow modeling that demonstrates that the design will not adversely

affect drainage.

O:1167P - Kendall County LF Silingl004 - Willow Run 21WR 2 Application Review memo SHR 9-1

j

-OS.doc

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EXHIBIT B

Electronic Filing - Received, Clerk's Office, April 10, 2009

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Illlll)) Illl1'

S)~ll'TI(~)~S

™

Engineering, Construction and Management Solutions

MEMORANDUM

Date:

To:

Company:

From:

Subject:

November 4, 2008

Mike Blazer

Jeep

&

Blazer, LLC

Laura Swan, PG

Kendall County - Review of Willow Run 2 Application

I have reviewed the Site Location Application for the Willow Run Recycling and

Disposal Facility for Kendall County, Illinois, dated June 3, 2008 (Willow Run 2).

My

review focused on the geology and hydrogeology aspects of Criterion 2. In addition, I

was present for all relevant testimony and have reviewed all filed documents with regard

to the geology and hydrogeology

of the site. Below is a summary of information

presented in the application, as well as during siting hearing testimony, about several

of

the key issues discussed during the procedures.

Location

of the Liner System

The Willow Run 1 Application design was to construct a significant portion

of the liner

system below the surface

of the bedrock. This was an issue of concern because it would

have set the liner system directly on top

of the bedrock aquifer. This design element was

changed for the current application. The liner system is proposed to be located a

minimum

of 5.2 feet (and a maximum of 24 feet) above the bedrock aquifer. The

placement

of the liner allows for an additional protective layer of in-situ clayey materials.

Equality Formation as a Barrier Unit

This was arguably the most discussed geologic issue during the public siting hearings.

The application presents the unconsolidated materials (a combination

of Equality and

Lemont Formations) as a confining unit

to the bedrock aquifer below. Ms. Underwood

provided various evidence with regard to this interpretation. This evidence included the

soil type, the pump test, laboratory tests, and the presence

of drain tiles.

Soil Type

- The Equality Formation was described as a fme-grained lake deposit that is

classified primarily as lean clay (CL), with lesser amounts

of silty clay (CL-ML), silt

(ML), lean clay with sand (CL), and fat clay (CH) (p. 5-6). The Lemont Formation, the

thinner

of the two layers, was classified as a glacial diamicton, with various types of lean

clay (CL), silt (ML), silty sand (SM), and silty clay (CL-ML) (p 5-6).

Pump Test

- Ms. Underwood testified on September 13, 2008, that the Theis equation

was used to evaluate the pump test data, and that the best fit for the data was the confined

aquifer situation.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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Laboratory Data

The application states that "laboratory permeability tests of Equality

Formation samples range from 1.4xlO-

8

to 2.8xlO-

7

cm/sec" (p. 5-6). In addition,

"laboratory permeability test results for undifferentiated Lemont Formation diamicton

samples collected during this investigation are low, ranging from 2.5xl0-

8

to 7.8xlO-

8

cm/sec. Isolated lenses of sorted sand within the undifferentiated Lemont Formation are

thin and only encountered outside the landfill footprint at B-32 and B-53 B" (p. 5-7).

Drain Tiles

On September 13, 2008, Ms. Underwood testified that "another piece of

evidence that I looked at was the effect of the drain tiles and how the drain tiles in the

area function. So drain tiles,

if we look at, generally, how that will work and how the

surface conditions are, you have precipitation, you have low permeability soils at the

surface. Water can't infiltrate into soils easily so you need the drain tiles

to be able to take

that soil water out

of the area, so that farming can be completed in those areas."

Although not detailed in the application, Ms. Underwood testified that another piece

of

evidence regarding the confining unit was seen in the potentiometric surface of the

aquifer. On September 15, 2008, Ms. Underwood stated that

"if you put a well into the

aquifer and measured the water level in the well, it would rise above the top

of the

aquifer. And that's what we see here. That's why another reason that we see that it's

confined. So there's pressure that confines the water in the aquifer. When you drill a well,

the water in that well comes above the surface

of the aquifer, and that's the potentiometric

surface."

Ms. Underwood also testified that she had talked

to the owner of the nursery on the

adjacent property about the pond located there. She indicated that the interpretation

of the

unconsolidated materials

as a confining unit was further confirmed by the events Mr.

Wallace witnessed during the construction

of the pond. Following the conclusion of the

siting hearings, Mr. Tim Wallace submitted his own account

of the excavation activities

on his property. In a document dated October 24, 2008, Mr. Wallace stated "1 began

excavation

of the pond in 2003. During that excavation, we encountered yellow and blue

clay, and no water. At the north end

of the pond, we continued to excavate,

approximately 28 feet, until we reached rock. At that point only, did water run into the

excavation. The excavation could not be kept dry by pumping."

Supplemental information was presented about the nature

of the unconsolidated

materials. On October 28, 2008, Donald Moran submitted a report indicating that in

response to questions raised during the hearings, five shallow water table piezometers

were constructed within the unconsolidated material. After waiting three days the wells

were found to

be dry.

This data supports the applicant's interpretation that the

unconsolidated materials are not part

of the aquifer. Furthermore, this document

addressed another question raised during the hearings, why the applicant was using

laboratory hydrauJic conductivities as opposed

to in-situ slug test hydraulic

conductivities. The results

of the applicant's supplemental study indicated that "the

shallow water table wells could not be developed or slug tested because there was no

water. Slug testing cannot be conducted in dry wells (Bouwer, 1989). In addition, water

should not be added to these water table wells to conduct slug testing because erroneous

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

results will occur because of changing the effective screen length from adding water

(Butler, 1998)."

Use

of2007 Rock Cores

There was a good deal

of discussion about the use of the 2007 soil and rock material. I

believe the testimony did not clear up the confusion about this issue.

As I understand the

testimony, the 2007 soil and rock cores were used only as supplemental data to the new

set

of soil and rock cores obtained for this application. Questions were raised about how

the samples were kept the last year, and

if they were in a condition that they could be

used again.

It

is my understanding that the 2007 samples were not resubmitted for

laboratory analysis, and that all

of the additional laboratory information was obtained

from collecting new samples. The 2007 samples were relogged by Ms. Underwood's

team and checked by herself.

It

seems reasonable that Earthtech would re-evaluate and

check those samples, as they were originally logged by CEC.

November 5. 2008

3

Memorandum

---

EXHIBIT C

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

TiI"l'lV#al,lace

LANDSCAPE SUPPLY 4$!C:

Dear County Board Members,

, ("

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Vr"'

:",.

.j ....

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..

> •• x •• ,

>

1481 W. Boughton Rd

Bolingbrook IL 60440

630-759-6813 phone

630-759-8153 fax

www.snowp/owsupplv.com

STATE Of

ilLINOIS

COUNTY OF KENDALL

- FILED _

OCT 292008

~

fJ.

/"

COUNTY

CURK

v~

KEHllAU. (OllHn'

October 24'h, 2008

I am Tim Wallace, I own the Tim Wallace Landscape Supply & Nursery located at the

corner of Whitewillow Rd. and Brisbin Rd. My pond was discussed during the public

hearings for the recent landfill application. I

am providing you with the history of

activity at my nursery.

In 2002, I made plans to excavate a pond on my property to provide for irrigation at my

nursery. I submitted my plans to Kendall County and received the necessary permits to

perform this work.

I began excavation of the pond in 2003. During that excavation, we encountered

yellow and blue clay, and no water. At the north end of the pond, we continued to

excavate, approximately 28 feet, until we reached rock. At that point only, did water

run into the excavation. The excavation could not be kept dry by pumping.

Near the middle of the pond, water only ran into the excavation from rain and drain

tiles, and once the excavation was deeper, from an area of boulders located on top

of the rock. I would sometimes have to pump this water out.

Excavation was

completed and the irrigation pond finished in 2006. Water levels

remain steady, even during irrigation.

If you

have any questions about my irrigation pond, my documents are on file with the

Planning and Zoning Department. You can verify the information I have provided.

Thank you,

~~

Tim Wallace

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

Ordinance No.

tJ%--lS-

AMENDED AND RESTATED

KENDALL COUNTY SITE

APPROVAL ORDINANCE

FOR POLLUTION CONTROL FACILITIES

WHEREAS,

as

of November 12, 1981, PA. 82*682 entitled "An Act relating to the

location

of sanitary landfills and hazardous waste disposal. sites" (415 ILCS

5/39/2)

became effective and amended the "Environmental Protection Act" (415 ILCS

5/1

et seq.)

(herein the

"Acr), and which has subsequently been amended; and

WHEREAS, the Act restricts the authority

of the Illinois Environmental Protection

Agency to issue permits for the development

or construction of new pollution control

facilities in unincorporated areas unless the applicant submits proof to the Agency that the

location

of said facility has been approved by the County Board of the county in which the

proposed site is to be located; and

WHEREAS. the Act requires an applicant to file an application for site approval with

the County Board; and

WHEREAS, the Act requires that the County Board shall approve

or disapprove the

application for site approval for each pollution control facility which is subject to the Act;

and

WHEREAS, by its terms, the Act supersedes local zoning and land use ordinances

and requires the County Board to evaluate applications for site approval for pollution

control facilities in accordance with the follOwing criteria, and to grant site approval only

if

the following criteria are met:

1.

The facility is necessary

to accommodate the waste needs of the area it is

intended to serve;

2.

The facility is so designed, located and proposed to be operated that the

public health, safety and welfare will be protected;

3.

The facility is located so as to minimize incompatibility with the character

of

the surrounding area and to minimize the effect on the value of the

surrounding property;

4.

(a) for a

facility other than a sanitary landfill

or waste disposal site, the facility

is located outside the boundary

of the 100 year flood plain or the site is

flood-proofed; (b) for a facility that is a sanitary landfill or waste disposal site,

the facility is located outside the boundary

of the 100 year floodplain. or

if

the

facility is a facility described

in subsection (b) of Section 22.19a, of the Act

the site is flood-proofed;

EXHIBIT

11=

Electronic Filing - Received, Clerk's Office, April 10, 2009

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5.

The plan of operations for the facility is designed to minimize the dangers to

the surrounding area from fire, spills, or other operational accidents;

6.

The traffic pattems to

or from the facility are so designed as to minimize the

impact

on existing traffic flows;

7.

If the facility will be treating, storing or disposing of hazardous waste, an

emergency response plan exists for the facility which includes notification,

containment and evacuation procedures to be used in case

of an accidental

release;

8.

If the facility is to be located in a county where the County Board has

adopted a solid waste management plan, the facility is consistent with that

plan; and

9.

If the facility will be located within a regulated recharge area, any applicable

requirements specified by the Illinois Pollution Control Board for such areas

have

been met;

provided, however, that this Ordinance governs applications for site location approval

of

new pollution control facilities as defined by the Act. To the extent a facility described in an

application proposes to handle or manage material that is not a waste, or proposes to

conduct

an activity which is excluded from the Act's definition of a pollution control facility,

or proposes to conduct an activity which does not require a permit from the Illinois

Environmental Protection Agency, this Article does not govern the application, and

authorization

to locate such a facility shall be determined by other provisions in the

County's Code

of Ordinances, including but not limited to those related to zoning, special

use, building

or environmental requirements, as applicable, and

WHEREAS, the Act authorizes the County Board to also consider as evidence the

previous operating experience and past record

of convictions or admissions of violations

of the applicant (and any subsidiary or parent corporation)

in the field of solid waste

management when considering criteria (ii) and (v)

of 4151LCS

5/39.2(a);

and

WHEREAS, the Act requires that

an applicant shall file as part of its application: (1)

the substance

of the applicant's proposal; and (2) all documents, if any, submitted as of

the date

of the application to the Illinois Environmental Protection Agency pertaining to the

proposed facility, except trade secrets as determined under 415 ILCS

517.1;

and

WHEREAS, the Act requires the County Board to hold at least one public hearing

to commence no sooner than 90 days but no later than 120 days from receipt

of the

application for site approval, such hearing to be preceded by published notice in a

newspaper of general circulation published

in the county of the proposed site, and notice

by certified mail to all members of the General Assembly from the district in which the

proposed site is located,

and to the governing authority of every muniCipality contiguous to

the proposed site, and

to the Illinois Environmental Protection Agency; and

Electronic Filing - Received, Clerk's Office, April 10, 2009

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WHEREAS, the Act provides that members or representatives of the governing

authority

of every municipality contiguous to the proposed site, and members or

representatives of the County Board, may appear at

and participate in public hearings

related to any application for site approval, and;

WHEREAS, the Act provides that

the public hearing shall develop a record

sufficient

to form the basis of appeal of any decision, and that appeals shall be based

exclusively

on the record made before the County Board; and

WHEREAS, the Act provides that any person may file a written comment with the

County Board concerning the appropriateness

of the proposed site for its intended

purpose; and that the County Board shall consider any comment received or postmarked

not later than 30 days after the date

of last public hearing: and

WHEREAS, pursuant to this Ordinance the County Board shall also consider any

post-hearing memorandum submitted

by the applicant and received or postmarked not

later than 30 days after the date

of the last public hearing; and

WHEREAS, decisions of the County Board with respect to applications for location

approval for such facilities are quasi-judicial determinations,

and therefore are required to

be based solely upon the evidence received at said public hearing, the written comments

from persons received or postmarked not later than 30 days after the date of last public

hearing and, pursuant to this Ordinance,

the applicant's post-hearing memorandum, if any,

received or postmarked not later than 30 days after the date of last public hearing; and

WHEREAS, the Act requires that decisions of the County Board regarding such

matters are required to

be in writing spe.cifying reasons for the decision, and shall be

made within 180 days after the receipt for site approval has been filed;

and

WHEREAS, the Act provides that if no final action is taken by the County Board

within 180 days after the filing

of the application for site approval, the applicant may deem

the application approved, but the Act does not prohibit the applicant and the County Board

from agreeing to extend the time period for final action by

the County Board; and

WHEREAS, the Act provides that the County Board,

in granting approval for a site,

may impose such conditions as may

be reasonable and necessary to satisfy the purposes

of the Act as long as those conditions are not inconsistent with regulations imposed by the

Illinois Pollution Control Board;

and

WHEREAS, it is apparent to the County Board that unless the information

submitted by each applicant for siting approval and

by other persons can be evaluated by

qualified professionals, including but not limited to engineering and legal professionals, the

County Board cannot accomplish what

the legislature has mandated; and that the

employment of such qualified professionals will impose a financial burden upon the

County; and that because it would be impossible for the County Board

to anticipate in any

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

given year whether any or how many applications for approval of pollution control facilities

may

be filed in Kendall County, the County Board cannot justify the employment of those

competent professionals as salaried employees; and it is assumed the legislature was

cognizant

of those facts; and

WHEREAS, recognizing that a single county should not bear the substantial

financial burden of the cost

of determining the appropriateness of such a regional facility,

said Act provides that a county may impose a reasonable fee upon an applicant to cover

reasonable and necessary costs incurred

in the siting review process; and

WHEREAS,

in order to protect the public interest and to promote the orderly

conduct of the hearing process

and to insure that full and complete information is made

available to the County Board, it is necessary that procedures be established for

conducting the public hearings

and making decisions regarding site approval applications:,

and

WHEREAS,

the terms of this Ordinance do not constitute or imply a policy decision

by the County concerning siting pollution control facilities

of any kind within the County but

exist

to guide the County in the fulfillment of its statutory duties with respect to applications

for site location approval, and therefore

BE IT RESOLVED by the County Board of Kendall County, Illinois that the following

procedures shall be established with respect

to applications for site approval for pollution

control facilities which are subject

to Section 39.2 of the Act (4151LCS

§

5/39.2):

Article 1

DEFINITIONS

1.1

The terms used in these procedural rules and regulations shall have the

same meanings as the same terms are defined

in the Act, in effect as of the date hereof

and as said Act may

be amended or modified from time to time, except where otherwise

specifically defined herein. Defined terms in this Ordinance

need not be capitalized to

have the meaning proscribed to them herein or

in the Act.

1.2

Applicant, as used herein, shall include any person, group

of persons,

partnership, firm, association, corporation, company or organization

of any kind that files

an application for site approval pursuant to this Ordinance, including, but not limited to,

any and all persons or entities having any pecuniary interest in the subject matter of the

application for site location approval, provided, however, that this definition shall not

include holders or owners of less than five percent (5%) of the stock of any such company

or entity whose stock

is publicly traded on a national exchange.

1.3

Operator, as used herein, shall include any person, group of persons,

partnership, firm, association, corporation, company or organization

of any kind that is

designated or identified

in an application for site approval pursuant to this Ordinance to

operate the proposed facility, provided, however, that this definition shall not include

4

Electronic Filing - Received, Clerk's Office, April 10, 2009

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holders or owners of less than five percent (5%) of the stock of any such company or

entity whose stock is publicly traded on a national exchange.

Article 2

FILING OF APPLICATION

2.1

A minimum of thirty (30) complete copies of applications for site approval

shall be filed in

the office of the County Clerk by the applicant. All exhibits that the

applicant wishes

to have considered as evidence by the County Board must be attached

to the application for site approval at the date of filing. The applicant shall also provide at

least one (1) copy

to the governing authority of each municipality, if any, contiguous to the

proposed site,

and to the goveming authority of each municipality within five (5) miles of

the borders of the proposed site.

2.2

All applications shall

be in writing on eight and one-half inch by eleven inch

(81/2"

x 11 "), eight and one-half inch by fourteen inch (8 %" x 14"), or eleven inch by

seventeen inch (11" x 17") paper, and shall also

be submitted in an electronic P.D.F.

format. All exhibits shall likewise

be made available both in paper and electronic formats.

The pages

of the application and all exhibits, including pages intentionally left blank, shall

be consecutively numbered.

2.3

Upon receipt of any such application and the filing fee as provided in Section

3.1, the County Clerk shall date stamp

same. The date on the stamp of the County Clerk

shall

be considered the official filing date for all purposes relating to the time of filing.

Should the application be presented to

the County Clerk without the correct number of

copies, in the incorrect form, or without the sections and fee described in this subsection,

the application shall

be rejected by the County Clerk, provided, however, that receipt and

acceptance of

an application by the County Clerk is pro forma, and does not constitute an

acknowledgment that the applicant has complied with the Act or this Ordinance.

2.4

Three copies

of the application for site approval shall be made available for

public inspection

in the offices of the County Clerk and members of the public shall be

allowed to obtain a copy

of the application or any part thereof upon payment of actual

costs

of reproduction to the County Clerk. The remaining copies of the application shall be

delivered by

the County Clerk to the County Board offices for distribution to the County

Board members

and County staff. The County Clerk shall also cause the electronic

version of the application to

be posted. in its entirety, in a publicly accessible area on the

County's web site.

2.5

Copies of each application for site approval shall also be made available for

public inspection

in each public library within five (5) miles of the proposed facility. It shall

be the responsibility of the applicant

to identify all such libraries and to make such copies

available.

2.6

At any time prior to the completion by the applicant of the presentation of the

applicant's factual evidence and

an opportunity for cross-questioning by the members of

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

the County Board and any other Participants, the applicant may file not more than one

amended application for site approval upon payment

of an additional fee as set forth in

Section

3.1 of this Ordinance. In the event an amended application is filed, the time

limitation for final action as set forth by the Act shall be extended for

an additional period

of ninety (90) days from the date of filing of the amended application.

2.7

The application for site approval shall contain a certification signed by an

officer

or partner of the applicant stating "I certify under penalty of law that, based on

information and belief formed after reasonable inquiry, the statements and information

provided in the siting

application are true, accurate, correct and complete."

2.B.

Withdrawal of Application. An application for site approval may be

withdrawn

by a siting applicant under the following circumstances:

1.

The applicant may, at any time before the public hearing called for by

Article 8 hereof begins and upon notice filed with the County Clerk,

withdraw the application for siting approval.

2.

After the commencement

of the public hearing, and up to the date

said hearing is closed in accordance with §8.5.16

of this Ordinance,

the applicant may withdraw the application for siting approval only

upon terms fixed by the Hearing Officer,

on a motion specifying the

ground for withdrawal, which shall be supported by affidavit or other

proof.

3.

An applicant may not withdraw an application for siting approval after

the close

of the public hearing in accordance with §8.5.16 of this

Ordinance.

Article 3

FILING FEE

3.1

There shall be paid to the County Clerk for delivery to the County Treasurer,

for deposit in a segregated siting application fund, at the time

of the filing of an application

for site approval a fee'

of $500,000 (Five Hundred Thousand Dollars), by certified or

cashier's check. In the event an amended application is filed pursuant to Section 2.3 of

this Ordinance, an additional filing fee of $250,000 (Two Hundred Fifty Thousand Dollars)

shall accompany said amended application. A fee

of $1,000,000 (One Million Dollars) is

required

if said facility is designed as a Hazardous Waste Treatment, Storage or Disposal

Site.

In the event an amended application for a Hazardous Waste facility is filed pursuant

to Section 2.3

of this Ordinance, an additional fee of $500,000 (Five Hundred Thousand

Dollars) shall accompany such amended application. The County Treasurer is hereby

authorized and directed to receive and hold said filing fee until payment is directed as

described below.

6

Electronic Filing - Received, Clerk's Office, April 10, 2009

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3.2

In the event the applicant for site approval requests approval for a waste

transfer station only, a reduced application

fee in the amount of $125,000.00 (One

Hundred Twenty-Five Thousand Dollars)

will be accepted to cover notice costs, court

reporter costs, hearing officer costs

and other expenses incurred by the County in

conducting the review of the application for site approval, the subsequent public hearing,

and the site approval decision.

3.3

The County Board may, at its discretion, retain

the services of one or more

professional consultants to assist the

Board and County staff in the siting process. The

County Board shall use the filing fee

to pay any costs and expenses incurred by the

County as a result of

the application for site approval and the hearing process set forth

herein, including, but not limited to, tile

fees and costs of: County employees or staff

review time, legal fees, expert witnesses, scientific testing, records or other investigations,

data searches, notices, court reporters, transcription costs, consultants, the hearing

officer, other expenses incurred by the County

in conducting the review of the application,

the public hearing,

and the County's site location decision, or any issue raised at any time

during any hearing,

to pay any costs incurred in any appeal(s) of any decision of the

County Board related

to the application and to pay any other cost or expenses in any way

connected with the application, including,

but not limited to, remand hearings.

3.4

Records of County-incurred fees and costs, including but not limited

to

relevant time records of County employees and staff and County consultants, to the extent

the County is seeking reimbursement of their time, are to be submitted by the persons

creating such records to the County Treasurer

on a monthly basis.

1.

The County Treasurer, or his/her designee, shall organize the records

and prepare and submit periodic reports to the County Board, County

Clerk

and the applicant, of invoices to or expenditures by the County.

The actual invoices

and bills shall be submitted to the County

Treasurer and included

in the report submitted to the County Board,

County Clerk

and Applicant, with all privileged and confidential

information,

if any, redacted. Inadvertent disclosure of confidential or

privileged information

by the County is not a waiver of confidentiality

or privilege.

2.

Upon approval of each report, described

in subsection (a), above, by

the County Board, the County Treasurer may draw upon the

applicant's filing fee deposits

in the amount of the reported incurred

costs

and fees, or as otherwise provided by the County Board.

3.

In determining the fees to be paid to the County to reimburse the

County for its employees or staffs time involved

in matters

concerning the application, the County Treasurer shall determine a

rate for each employee who submits a record of his/her time

to the

County Treasurer, including

in such rate, all costs of the County in

compensating such employee or staff member, such as salary or

---

wage, or benefits. The County Treasurer shall include the rate he/she

calculates per employee

in the report described in (a) above.

3.5

If

the costs incurred by the County under this Article 3 exceed, or are

reasonably estimated

to exceed, the amount of the filing fee then remaining on deposit,

the County shall present a claim

to the applicant for the excess, and for such additional

amount as

is reasonably estimated to be needed to complete the siting process. Payment

of this excess is due within five (5) business days

of the date the claim is presented to the

applicant. Any unpaid amount shall constitute a debt and

the County shall recover its

costs and attorneys' fees

if it is required to make a claim or commence a suit against the

applicant and to recover the unpaid

fees.

3.6

Upon termination of all proceedings hereunder. the County Treasurer shall

prepare a final accounting and

summary of all bills and expenses which shall be

presented for approval to the County Board. Any portion of the filing fee deposits that

remains unexpended at the conclusion of the local site location review process (including

all appeals), shall

be retumed to the Applicant.

Article 4

CONTENTS

OF APPLICATION FOR SITE APPROVAL

4.1

Each application for site approval shall contain information sufficient to allow

the County Board

to evaluate whether the proposed site meets the criteria for such

facilities set forth

in Section 39.2 of the Act. The determination of the quality and quantity

of information to

be included in an application is, ultimately, the applicant's to make, as it

is the applicant's burden to demonstrate that the siting criteria set forth in Section 39.2 of

the Act are met. However, for purposes

of this Ordinance, an application shall contain, at

a minimum, the following documents

and information, in addition to what the applicant

submits in support

of the Section 39.2 criteria, together with, to the extent that such

documents and information are

based on other information or data, citations to the primary

sources

of data:

4.2

Background of Applicant. The application for site approval shall contain the

following information concerning the applicant.

1.

Applicant's full

name, address, and telephone number. If applicant is

a partnership or limited partnership. the names and addresses

of

each partner and limited partner.

2.

If applicant is a corporation or is a limited partnership having a

corporation

as its general partner:

a.

the names and addresses of all officers, directors, all

stockholders owning five percent or more

of the capital stock of

8

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

the corporation and the name, address, and telephone number

of the corporation and the registered agent of the corporation;

b.

certified copy of the Articles of Incorporation or Organization in

the State of Illinois or,

if incorporated or organized in a state

other than Illinois, a certified copy

of its authorization to do

business in the State

of Illinois; and

c.

the most recent annual report.

3.

If applicant is a corporation or is a limited partnership having a

corporation

as its general partner and more than five (5) percent of

such corporation's capital stock is owned by another corporation,

either directly or derivatively, then the requirements

of this section

shall apply

to such corporation.

4.

A list

of any and all court actions or administrative proceedings of any

kind in which the applicant (including all persons and entities

identified

in Section 1.2 hereof) is or has been a named party and the

subject matter

of which was related to waste collection, hauling or

disposal. Such list shall identify the court

or agency, the number of

the case,

and a brief summary of the facts and disposition of the

case.

5.

A description of the previous operating history of the applicant in the

field

of solid waste management, including all pollution control

facilities as defined in the Act, and all operations relating to the

transport, transfer, storage

or disposal of waste, owned or operated

by the applicant in the United States at any time during the fifteen (15)

years prior to

the filing of the application, including but not limited to:

a.

the name of each facility.

b.

a description of the nature of each facility (Le., sanitary landfill.

hazardous waste landfill. construction and demolition debris

site, transfer station, recycling facility, composting facility, etc.).

c.

a description of the applicant's involvement

in each facility (Le.,

investor, owner, operator, co-operator, etc.).

d.

an identification of the volume of waste deposited in, on or at

each

such facility or processed by each such facility for each of

the five (5) years preceding the filing

of the application.

e.

a description of each court action or administrative proceeding

initiated against the applicant (including all persons and entities

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Electronic Filing - Received, Clerk's Office, April 10, 2009

---

identified in Section 1.2 hereof) related to each such facility, or

complaint. notice

of violation or citation received by the

applicant related to each such facility, along with

an

identification of the court or administrative agency in which or

by whom any such proceeding was initiated,

if any, and a

description of the outcome or resolution

of each such

complaint or proceeding.

f.

A description of any closure or post-closure activities

undertaken by any person at each such facility within

the five

(5) years preceding the filing of the application.

6.

With respect to

each individual named in the application for -site

approval, said application for site approval shall state the prior

employment history

and qualifications of such person as it relates to

the proposed site operation.

7.

If the applicant (including all persons and entities identified in Section

1.2 hereof) has previously closed any facility regulated by the United

States Environmental Protection Agency or the Illinois Environmental

Protection Agency, the applicant shall make available a copy

of all

closure documents, including, but not limited to financial assurance

documents, related to such closure. The terms

of this paragraph shall

apply

to facilities which were owned or operated by a corporation,

partnership or limited partnership

of which the applicant was the

owner of more than five (5) percent

of the ownership interest of the

corporation, partnership or limited partnership which owned or

operated the facility.

8.

A description of all claims made by the applicant within the five (5)

years prior to the date of the application under or against any policy

of

insurance which covers, or is alleged by the applicant to cover, claims

against the applicant related to any waste collection, hauling or

disposal activities.

4.3

Background of Operator. The application for site approval shall contain the

following information concerning the operator of the proposed facility.

1.

Operator's full name, address, and telephone number. If operator is a

partnership or limited partnership, the names and addresses of each

partner and

limited partner.

2.

If operator is a corporation or is a limited partnership having a

corporation

as its general partner:

Electronic Filing - Received, Clerk's Office, April 10, 2009

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a.

the names and addresses of all officers, directors, all

stockholders owning five percent or more

of the capital stock of

the corporation and the name, address, and telephone number

of the corporation and the registered agent of the corporation;

and

b.

certified copy of the Articles of Incorporation or Organization in

the State of Illinois or,

if incorporated or organized in a state

other than Illinois, a certified copy

of its authorization to do

business

in the State of Illinois: and

c.

the most recent annual report.

3.

If operator is a corporation or is a limited partnership having a

corporation

as its general partner and more than five (5) percent of

such corporation's capital stock is owned by another corporation,

either directly or derivatively, then the requirements of this section

shall apply to such corporation.

4.

A list of any and all court actions or administrative proceedings of any

kind in which the operator (including all persons and entities identified

in Section 1.2 hereof) is or has been a named party and the subject

matter

of which was related to waste collection, hauling or disposal.

Such list shall identify the court or agency, the number

of the case,

and a brief summary

of the facts and disposition of the case.

5.

A description of the previous operating history of the operator

in the

field

of solid waste management, including all pollution control

facilities as defined in the Act, and all operations relating to the

transport, transfer, storage or disposal of waste, owned or operated

by the operator

in the United States at any time during the fifteen (15)

years prior to the filing of the application, including but not limited to:

a.

the name of each facility.

b.

a description of the nature of each facility (Le., sanitary landfill,

hazardous waste landfill, construction and demolition debris

site. transfer station, recycling facility, composting faCility. etc.).

c.

a description of the operator's involvement in each facility (Le ..

investor, owner, operator, co-operator, etc.),

d.

an identification of the volume of waste deposited in, on or at

each such facility or processed by each such facility for each

of

the five (5) years preceding the filing of the application.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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e.

a description of each court action or administrative proceeding

initiated against the operator (including all persons and entities

identified

in Section 1.2 hereof) related to each such facility, or

complaint, notice

of violation or citation received by the

operator related to

each such facility. along with an

identification of the court or administrative agency in which or

by whom any such proceeding was initiated,

if any. and a

description

of the outcome or resolution of each such

complaint

or proceeding.

f.

A description of any closure or post-closure activities

undertaken by any person at each such facility within the five

(5) years preceding the filing

of the application.

6.

With respect to each individual named in the application for site

approval, said application for site approval shall state the prior

employment history and qualifications

of such person as it relates to

the proposed site operation.

7.

If the operator (including all persons and entities identified in Section

1.2 hereof) has previously closed any facility regulated by the United

States Environmental Protection Agency or the Illinois Environmental

Protection Agency, the applicant shall make available a copy

of all

closure documents

.. including, but not limited to financial assurance

documents, related to such closure. The terms

of this paragraph shall

apply

to facilities which were owned or operated by a corporation.

partnership

or limited partnership of which the operator was the owner

of more than five (5) percent of the ownership interest of the

corporation, partnership or limited partnership which owned or

operated the facility.

8.

A description of all claims made by the operator within the five (5)

years prior

to the date of the application under or against any policy of

insurance which covers, or is alleged by the operator to cover, claims

against the operator related

to any waste collection, hauling or

disposal activities.

4.4

Site Description.

The application for site approval shall contain the

following information concerning the description

of the proposed site:

1.

Legal description of the proposed site.

2.

Vertical height (elevation-mean sea level (msl»

of site as it exists at

the time of the application

and vertical height (elevation-msl) of the

site as

it is expected to exist upon closure.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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3.

Name, address, and telephone number of each owner(s) (including, if

applicable, beneficial owners) of the property. The requirements of

Section 4.2 shall apply

to owners of the property and such information

should be provided at the time the application for site approval

is filed

by applicant.

4.

If the site is not owned by the applicant, then documents granting to

the applicant the right to develop the site for the proposed use must

be attached to the application for site approval by the applicant.

5.

A map, prepared and certified by an Illinois licensed professional

engineer.

of sufficient size; showing, but not limited to:

a.

Location of the site;

b.

Location and depths of all public and private water wells within

five (5) miles of the boundaries of the proposed site and such

other

wells

as may be affected by the proposed use (to the

extent such information is available, the Application shall also

contain well construction details and, if applicable, well closure

information

);

c.

Location of all aquifers, streams, ponds, rivers and lakes and

such bodies of water as may be affected by the proposed use;

d.

Location of all roads and bridges and transportation structures

that may be affected by the proposed use;

and

e.

Location of all fences, buildings or other structures within the

proposed site

and within 500 feet of the boundaries of the

proposed site

and all other structures that may be affected by

the proposed use.

f.

Locations of aU groundwater monitoring wells in place at the

site as of the date of filing

of the application.

6.

A complete hydrogeologic study of the site by

a

qualified hydrologist,

including but not limited

to:

a.

Studies completed by any federal or state agency;

b.

General description of the hydrogeologic conditions of the site

and the surrounding area. based

on an exploratory program

including soil borings;

Electronic Filing - Received, Clerk's Office, April 10, 2009

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c.

Detailed description of all known or suspected drinking water

aquifers located within three (3) miles of the site;

d.

A complete

log of each boring made during the exploratory

program. including but not limited

to:

(1)

Textural soil classification (USCS);

(2)

Particle size distribution for representative samples;

(3)

Coefficient of permeability based

on field and laboratory

determinations;

and

(4)

lon-exchange capacity and ability to absorb and fix

heavy metal ions.

e.

If bedrock was encountered:

(1)

Depth of bedrock;

(2)

Physical character

and hydrogeologic characteristics of

the bedrock formation; and

(3)

Names and ages of the formation encountered.

7.

Information on any existing surface or sub-surface mining on the site

and within any area that may be affected by the proposed use,

including but not limited to:

a.

Legal description of areas mined;

b.

Materials removed by mining; and

c.

Approximate size of displacement.

8.

Information on any other activity that has occurred on the site in which

the natural condition of the soil or support of the surface has been

disturbed.

4.5

Proposed Service AreaNolume. The application for site approval shall

contain the following information concerning the proposed service area for the proposed

site:

1.

A description of the geographic area that the proposed site is

intended and designed to serve.

Electronic Filing - Received, Clerk's Office, April 10, 2009

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2.

A statement identifying the location of each active Pollution Control

Facility ("PCF") within the proposed service area and within 50 miles

of the perimeter of the proposed service area, providing the following

information:

a.

If the PCF is a landfill:

(1)

Dimensions of the PCF (including permitted vertical air

space) that remains unfilled by waste, estimating life

span of such facility;

(2)

Owner

and operator; and

(3)

Classification of permit.

b.

If the PCF is a transfer station:

(1)

Permitted/allowed throughput capacity of the PCF, in

tons or tons per operating day;

(2)

Owner

and operator; and

(3)

Classification of permit.

3.

Complete documentation of the facts and reasons supporting

applicant's assertion that

the proposed facility is necessary to

accommodate

the waste needs of the proposed service area.

4.6

Site Development Plan.

The application for site approval shall contain the

following information concerning the Site Development Plan:

1.

A detailed topographic map of the site as it exists at the time of the

application for site approval, prepared and certified by an Illinois

licensed professional engineer, drawn to a scale of not less than 1"

=

200', showing:

a.

Five-foot contour intervals on sites, or portions thereof, where

the relief exceeds

20 feet, and two (2) foot contour intervals on

sites, or portions thereof, having less than 20 feet of relief; and

b.

Location of all buildings, ponds, streams, wooded lots, bedrock

outcrops, underground

and overhead utilities, roads, fences,

culverts, drainage ditches, drain tiles, easements, streets,

boundaries, areas previously mined or where soil has been

disturbed from its natural condition,

the location and elevations

---

of borings made under Section 4.3 hereof, and any other item

that may be affected

by the proposed use.

2.

A detailed topographic map of the site as it is to be developed,

prepared and certified by

an Illinois licensed professional

engineer/surveyor, drawn to a scale

of not less than 1" = 200',

showing the

same types of information as the map in Section 4.5{1},

and more specifically:

a.

Location and description of all monitoring devices which will be

utilized on the site;

b.

Location and description of all leachate collection systems to

be installed at the site; and

c.

Location of all buildings and equipment to be utilized by the

proposed

use.

3.

A description of the proposed landscaping plan and facility screening.

4.

A statement of the approximate period of time for which the proposed

facility will

be in operation.

4.7

Operating Procedures.

The application for site approval shall contain the

following information concerning the operating procedures for the proposed facility:

1 .

Detailed operating procedures for the facility;

2.

Specific details for the following items:

a.

Personnel requirements; including training and supervision;

b.

Traffic control on and in the vicinity of the site;

c.

Method of determining the quantity and characteristics of

waste delivered

to the facility;

d.

Method

of inspection and chemical analysis of waste;

e.

Method of landfilling, incineration. resource recovery or other

process;

f.

Hours of operation, including waste placement and non-waste

placement operating hours;

g.

Utter, vector, vermin, dust and odor control;

Electronic Filing - Received, Clerk's Office, April 10, 2009

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3.

h.

Stormwater management and erosion control;

i.

Fire control;

j.

If applicable, the stages of development or use;

k.

Landfill gas control, monitoring, recovery/re-use program,

as

applicable;

I.

Leachate control, collection and treatment;

m.

Overlay of on-site wetlands and mitigation plan;

n.

Truck tarping

and road maintenance program.

Specific details for the following items:

a.

Identification of the specific types of wastes which the applicant

plans to accept for disposal or processing

at the proposed site

classified according to the definitions set forth

in the Illinois

Environmental Protection Act.

(415 ILCS

§

5.3 et seq.);

b.

Identification of the proposed yearly volumes of each type of

waste identified in response to Article

4.6(3} above which the

applicant expects to dispose of or process, or reasonably

anticipates disposing

of or processing, at the proposed site

through the

end of the expected life-span of the proposed site.

4.8

Closure/Post-Closure Plan.

The application for site approval shall

contain a detailed plan for voluntary or involuntary closure of the proposed facility,

including, but not limited to, the following information:

1.

A detailed topographic map of the-site as it will appear at the time of

closure, prepared

and certified by an Illinois licensed professional

engineer, drawn

to a scale of not less than 1"

=

200', showing the

same types of information

as the map in Section 4.5(1}, and more

specifically: .

a.

Location and description of all monitoring devices which will be

utilized on the site after closure;

b.

Location and description of all leachate and landfill gas

collection

and control systems to be installed at the site; and

17

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c.

Location of all buildings and equipment that will remain after

closure;

d.

Sequence/timing of closure for completed site area(s).

2.

Final cover system, including proposed soil and/or geosynthetic

material specifications,

as applicable.

3.

Proposed use(s) after operation

(i.e.,

end-use plan) including changes

in topography and

all new surface features, and plans for how site

controls

and engineered features will be compatible with end use

plan(s).

4.

Satisfactory evidence of financial assurance adequate to insure the

implementation of the closure plan and the performance of all

applicable closure/post-closure requirements.

4.9

The application for site approval

shall include information on contingency

and emergency plans. including, but not limited

to:

1.

Ust of possible emergency situations which might occur at or near

this facility which might affect the operations of the facility, including,

but not limited to, explosion,

fire, spills, power outages, tornadoes,

and vandalism.

2.

The applicanfs plan to insure against risks of injury to the person

and

property of others, including copies of insurance policies or

commitment letters.

3.

A summary of measures that the applicant will take to limit site access

and other appropriate site security measures

to prevent acts of

vandalism

and terrorism.

4.10 Flood Plain. There shall be flied with

the application for site approval:

1.

A statement that the facility is within or outside the 100-year flood

plain

as determined by the Federal Emergency Management Agency.

2.

A map prepared and certified by an Illinois licensed professional

engineer documenting the boundaries

of the 100-year flood plain.

3.

If the site is not a sanitary landfill or waste disposal site, and is within

the 1

DO-year flood plain, there shall be filed:

---

a.

Evidence that the site has been flood-proofed to meet the

requirements of

the Federal Emergency Management Agency

and the requirements

of any other federal or state agency; and

b.

Evidence of approval by applicable federal and state agencies.

4.11 Traffic Patterns.

There shall

be filed with the application for site approval:

1.

A map of the county, prepared by an Illinois licensed professional

engineer, showing the

roads which will be used to transport material

to and from the site.

2.

A traffic impact study showing the present traffic flows on said

roadways and the impact that the traffic generated by the facility will

have thereon. The traffic study

shall be

in accordance with guidelines

recommended by the Institute of Transportation Engineers regarding

the proposed site,

and shall include, at a minimum, the following

information:

a.

The anticipated number of motor vehicles and the types and

weights (loaded

and empty gross) thereof which will be

entering and exiting the site, broken down by each hour of the

day. If the number of vehicles is expected or intended to be

greater or less on particular days of the week, identify those

days, the numbers of vehicles,and where it includes vehicles

other than passenger automobiles, include the hourly analysis

for each day of the week.

b.

Direction of flow of traffic, into, within and from, the proposed

facility, and provide a copy of any driveway permit, if

applicable.

c.

A statement of the speed limits and load limitations of any and

all roads and bridges that will be utilized by traffic entering and

exiting the site;

d.

Ascertainable accident history data compiled for roads and

intersections within 2 miles of the site.

e.

Detailed design plans for any roadway improvements,

modifications proposed by the applicant to mitigate traffic

impacts, if applicable.

4.12 The application shall

be signed by the applicant, landowner(s), operator,

engineer registered

in the State of Illinois under the Illinois Professional Engineering

Practice Act, land surveyor and any other technical consultant responsible for drafting

all

Electronic Filing - Received, Clerk's Office, April 10, 2009

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or portions of the application. The application shall provide a contact address, telephone

number and e-mail address for all persons named.

Article 5

PARTICIPANTS

5.1

The Applicant is a Participant.

5.2

The County, its employees

and staff, and any experts, consultants,

investigators

or attorneys hired by the County to review, investigate, present at hearing, or

otherwise work for

the County conceming the application, are Participants. To the extent

the County employees and -staff wish to participate in the public hearings outside their

roles or employment with the

County, they must submit a Notice

of Participation, as do

other members of

the public.

5.3

Any person other

than described in 5.1 and 5.2 above, must file a written

notification

of intent to participate (Notice of Participation), with the County Clerk before

the start

of the first day of public hearing or, after the start and before the adjournment of

the first day

of public hearing, with the Hearing Officer. Such notification shall state, at a

minimum:

1.

The name, address daytime phone number and, if available, facsimile

number of the person filing

the Notice of PartiCipation;

2.

Whether the person will be partiCipating on his/her own behalf or as a

representative/spokesperson of another person or entity (and

if on

behalf of another person or entity, identify the name of that person or

entity),

3.

Whether

the person (or the entity or association he/she represents)

will

be represented by an attorney during the public hearings, and

4.

Whether the person intends

on providing oral testimony or comment

during the public hearing.

5.4

A person may not become a Participant after

the first day of the hearing

except for good cause shown. The County shall liberally interpret this limitation

if the

additional participation shall not delay the process or unfairly prejudice a prior Participant.

No late PartiCipant shall

be entitled to cross-examine a witness who has previously

testified.

5.5

Participant rights.

1.

Participants have

the right to present sworn testimony and witnesses;

provide un-sworn, oral comment during the public hearing {subject

to

the Hearing Officer's judgment and consistent with fundamental

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

fairness); to cross-examine or question witnesses who provide sworn

testimony

or, alternatively, submit to the Hearing Officer written

questions to

be asked of the witnesses by the Hearing Officer and at

the Hearing Officers discretion as to whether and how such questions

are

to be posed.

Participants shall have the right

to be represented by a licensed

attomey-at law at the public hearing(s). Any attomeys representing a

Participant must be licensed

and in good standing to practice law in

the State of Illinois, or if licensed and in good standing to practice law

in another State which is part of the United States, shall

be allowed to

serve as an attorney for a Participant upon motion made to and -

granted by the Hearing Officer. Subject to the authority

of the Hearing

Officer, such attorneys shall have the right

of reasonable cross-

examination. Any Participant not represented by

an attorney shall

also have the right to reasonable cross-examination of witnesses.

Subject

to the Hearing Officer's right to extend filing deadlines as set

forth

in Article 7, all reports, studies, exhibits or other evidence or

copies thereof, other than testimony. which any Participant desires to

submit for the record at the public hearing must

be filed with the

County Clerk at least seven (7) calendar days before the public

hearing

and shall be available for public inspection in the office of the

County Clerk.

In

the event that the seventh day prior to the date set

for public hearing falls

on a Saturday, Sunday or holiday, the next

working day shall be considered the

day that reports, studies and

exhibits must

be filed. The formatting requirements set forth in Article

2 hereof, including submittal of electronic versions of

all materials,

shall apply

to Participants, provided, however, that Participants shall

be required

to file only fifteen (15) paper copies and one (1) electronic

copy. One paper copy shall be provided by the County Clerk to the

applicant.

4.

The County Clerk shall cause all Participant submittals

in electronic

format

to be posted on the County's web site, in the same manner

and location as provided for the application.

5.

Upon conclusion of the public hearing, any Participant may submit to

the County Board a post-hearing memorandum addressing the siting

criteria set forth

in Section 39.2(a) of the Act (415 ILCS

§

5/39.2(a»,

as well

as any other issue relevant to the proceeding. The post-

hearing memorandum shall

be based on the record developed during

the siting approval process. Any such post hearing memorandum

must

be submitted within 30 days after the date of the last public

hearing,

by filing 8 copies with the County Clerk who shall receive and

date stamp the post-hearing memorandum, which shall

be made part

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Article 6

PUBLIC

COMMENT

6.1

The County Clerk shall receive and date stamp written comments from any

person concerning the appropriateness

of the proposed site for its intended purpose.

6.2

Copies

of written comments shall be made available for public inspection in

the offices of the County Clerk, and members of the public shall be allowed to obtain a

copy

of any written comments upon payment of actual cost of reproduction.

6.3

Subject

to the Hearing Officer's authority to impose reasonable limits on the

timing and duration of un-sworn oral comments,

as set forth in Article 7 of this Ordinance,

any member

of the public shall have the opportunity to submit such oral comments during

the course

of the public hearing. Oral comments shall be transcribed in the same manner

as sworn testimony and shall become part of the record

of the public hearing.

6.4

Any written comment received by the County Clerk postmarked not later

than 30 days after the date

of the last public hearing, shall be made part of the record of

the public hearings as hereinafter described and the County Board shall consider any

such timely written comments and post-hearing memorandum

in making its final

determination.

In the event that the 30th day falls on a Saturday, Sunday, a Federal, State

or Kendall County holiday, the next day

on which mail is received by the Kendall County

Clerk shall be considered the 30th day for purposes

of this paragraph.

Article 7

HEARING OFFICER

7.1

HEARING OFFICER.

The County Board Chairman, with the advice and

consent of the County

B<?ard, shall appoint a Hearing Officer to govern the proceedings

under this Ordinance.

1.

The Hearing Officer shall be a licensed attorney in the State of Illinois,

skilled

in matters of trial or administrative hearing procedures.

2.

The Hearing Officer shall

be authorized to perform the following

functions:

a.

To preside over the siting hearing and

be responsible for ruling

on preliminary motions, evidentiary issues, objections or any

other contested legal issues.

---

b.

To make any decisions concerning the manner in which the

hearing is conducted subject

to this Ordinance and the law

concerning such applications. All decisions and rulings shall be

in accordance with the concept of fundamental fairness (unless

a different standard is adopted as a matter of Illinois law), but

need not

be in strict compliance with the Illinois Supreme Court

Rules, Illinois Code of Civil Procedure,

or any local rules of

evidence governing a civil judicial trial in the State of Illinois,

County

of Kendall, provided, however, that the rules relating to

privileged communications and privileged topics shall be

observed.

c.

To conduct a fair hearing, to take all necessary actions to avoid

delay, to maintain order and to ensure development

of a clear,

complete

and concise record.

d.

To administer oaths and affirmations.

e.

To conduct a public meeting, prior to the start of the public

hearings,

to explain the public hearing procedure and site

location review process. If the Hearing Officer decides

to hold

such a meeting,

it shall be held no sooner than the ninetieth

(90th) day from the date the Petition was filed, and notice shall

be given

in a newspaper of general circulation one week prior

to the meeting (or alternatively, as part of the first published

notice

of the hearing) and such notice shall expressly state that

it is a informational meeting concerning the procedure to be

used at the public hearing and the site location review process,

and that it is not a public hearing at which evidence will be

taken for purposes of making a determination

in accordance

with this Ordinance and the Act.

f.

To arrange for the presence of a certified court reporter to

attend and transcribe the conduct of all public hearings for the

public record.

g.

To require a witness or person presenting un-sworn public

comment to State his/her position either for, against, or

undecided with respect to the proposed facility.

h.

To examine a witness and direct a witness to testify.

i.

To establish reasonable limits on the duration of the siting

hearing consistent with the Act and this Ordinance, including

but not limited to the reasonable limitation

of sworn testimony.

un-sworn oral comment, direct

and cross-examination of any

Electronic Filing - Received, Clerk's Office, April 10, 2009

---

witnesses, and the limitation of repetitive or cumulative

testimony

and questioning.

j.

To allow the introduction of late-filed evidence, be it written or

testimonial,

on behalf of any Participant, provided good cause

is shown for the late-filing, the evidence is offered

in and is

relevant to the rebuttal portion of the Participant's case, and

the evidence was filed with the County Clerk at least one day

before the public hearing at which it is offered, and

fundamental fairness to

all parties will

be preserved.

k.

The Hearing Officer, at his discretion or at the request of the

County Board, may continue any session of the hearing from

time-to-time, consistent with the timing provisions set forth

in

this Ordinance and the Act.

I.

Pursuant to §2.8.2 hereof, to rule upon a motion to withdraw

the application for siting approval filed prior

to the close of the

public hearing, and

to impose reasonable terms upon the grant

of such a motion.

3.

The Hearing Officer shall confer with the County Board, and counsel

for the County, as necessary, concerning the application, between the

time of the filing

of the application and the County Board's decision on

the application. Given the Hearing Officer's role of communicating

with the County Board, the Hearing Officer may not confer with

Participants (members of the public,

and applicant included)

concerning the application, unless such conference takes place

during the public hearing, is through correspondence which is filed

with the County Clerk (and, thus, available for everyone to view), or

concerns location, time or other similar

scheduling aspects of the

public meeting or public hearing, or the notices for same. The only

additional exception from this restriction

is that the Hearing Officer

may confer with the County Clerk about the upkeep or status of

the

public record, make a request to review or copy the public record, or

confer with the County Clerk regarding the scheduling or location of

the public meeting or hearing, or arrangements for the notices of

the

pubic meeting and hearing.

4.

At the conclusion

of the public hearing and after consideration of all

timely-filed written comments, the Hearing Officer shall submit draft

written findings to the County Board and file a copy of such findings

with the County Clerk.

5.

The Hearing Officer does not have the right or the power to vote, as a

County Board Member votes,

on the application.

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Article 8

PUBLIC HEARING

8.1

Within forty-five (45) days from the date the application for site approval is

filed, the County Board shall determine the date, time and location upon which a public

hearing shall commence. The initial session of the public hearing shall

be scheduled no

sooner than

90 days but not later than 120 days from the date the application for site

approval was filed with

the County Clerk.

8.2

If, in the County Board's opinion, County facilities are not sufficient to

- accommodate the number

of persons expected to a.ttend the hearing, the County Board

may arrange for the hearing to be conducted at another site.

In such an event, the County

Board is authorized

to lease an adequate auditorium and sound system for the hearing.

Any and all costs associated with such lease or acquisition shall be paid from the filing

fee.

8.3

The County Board shall notify the County Clerk of the date upon which such

hearing.

shall be held and shall request the County Clerk to cause notice of such hearing

to be made as follows. Upon receipt of such request, the County Clerk, and, at the County

Clerk's discretion, with the help

of the attorney representing the County (its staff and

employees), shall cause the publication of notice pursuant

to the following requirements.

1.

By publication of two (2) legal notices in a newspaper of general

circulation published

in the County. One such notice shall be

published no later

than sixty (60) days from the date the application

was filed and one such notice shall

be published no later than seventy

five (75) days from the date the application was filed.

2.

Such notices shall consist of the following information, which, except

for

h. through k., below, must be disclosed by the applicant in the

application:

a.

The name and address of the, person, partnership or

corporation requesting site location approval;

b.

The name and address of the owner of the site, and in case

ownership

is in a land trust, the names of the beneficiaries of

said trust;

c.

The legal description of the site;

d.

The street address of the property, and

if there is no street

address applicable

to the property, a description of the site with

reference to location, ownership or occupancy or

in some other

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manner that will reasonably identify the property to residents of

the neighborhood;

e.

The nature

and size of the proposed facility;

f.

The nature of the activity proposed;

g.

The probable life of the proposed activity and facility;

h.

The time

and date of the public hearing(s);

i.

The location(s) of the public hearmg(s);

j.

A statement that all copies of evidence other than testimony to

be submitted at the public hearing(s) must be filed with the

County Clerk

at least seven (7) days before the date of the first

public hearing;

and

k.

A statement that any person wanting to present swom

testimony or cross-examine witnesses must register as a

Participant with the County Clerk no later

than the first day of

the public hearing, or register with the Hearing Officer no later

than the adjournment of the first day of the public hearing.

3.

A copy of the notice shall also

be

sent. no later than fifty-five (55)

days after the date the application was filed, by certified mail return

receipt requested

to the following. This notice, pursuant to Section

39.2(d) of the

Act, must be delivered to the following persons/entities

no later than fourteen

(14)

days prior to the first day of public hearing.

If

a return receipt is not received by the County Clerk confirming

delivery of

the notice on the following persons/entities, by the sixty-

fifth (65th) day following the filing of the application,

the County Clerk

shall arrange for personal service on the following persons/entities.

a.

all members of the General Assembly from the district in which

the proposed facility is located;

b.

the Illinois Environmental Protection Agency;

c.

to the governing authority of every municipality whose

corporate limits are within

1 mile of the boundary of the