ILLINOIS POLLUTION CONTROL BOARD
May 25, 1989
A.R.F. LANDFILL CORPORATION,
Petitioner,
v.
)
PCB 89—15
LAKE COUNTY BOARD,
)
Respondent.
MESSRS.
RICHARD
3.
KISSEL, BRADLEY
R.
O’BRIEN; GARDNER, CARTON
&
DOUGLAS APPEARED ON BEHALF OF PETITIONER;
MESSRS.
FRED
L. FOREMAN, MITCHELL L.
HOFFMAN, AND LARRY
4.
CLARK;
LAKE COUNTY STATE’S ATTORNEYS OFFICE,
APPEARED ON BEHALF OF
RESPONDENT;
MESSRS. MICHAEL SCHNEIDERMAN, CHRISTOPHER W. ZIBART,
TODD R.
WIENER;
HOPKINS
& SUTTER, APPEARED ON BEHALF OF AMICUS CURIAE
PRAIRIE HOLDINGS CORPORATION AND LOCAL LANDOWNERS.
OPINION OF THE BOARD
(by 3D.
Dumelle):
This matter comes before
the Board on the January 26, 1989
petition
for appeal filed by A.R.F.
Landfill
Inc.
(“A.R.F.”)
pursuant
to Section
40.1
of the Environmental Protection Act
(Ill.
Rev,.
Stat.
ch.
ill 1/2,
par.
1040.1
(1987))
(“Act”).
A.R.F.
appeals the November
1,
1988, decision of the Lake County
Board
(“LCB”) denying local siting approval
to A.RF.
proposed
vertical
expansion
in Lake County,
Illinois.
In its appeal,
A.R.F.
contends that
a
“biased and
prejudiced” LCB rendered
a
decision denying A.R.F.’s application
for vertical expansion.
A.R.F.
argues that the LCD’s decision
is
against the manifest weight
of the evidence.
Based
on the record before
it, the Illinois Pollution
Control Board (“Board”) finds
that the hearing below was
conducted
in
a fundamentally fair manner.
The Board
also finds
that the decision of the LCB
to deny A.R.F.’s application based
on failure
of A.R.F.
to meet
its burden
of proof
on the
statutorily—defined
criteria
is not against the manifest weight
of the evidence, except for the LCB’s decision on Criterion No.
6.
History
On
June
30,
1988,
A.R.F.
submitted
its application
to the
LCD for approval pursuant
to Section
39.2
of the Act.
In its
99—281
—2—
application A.R.F. proposed
to design,
construct,
and operate
a
vertical expansion of its present Lake County facility.
A.R.F.
presently operates an 80 acre non—hazardous, primarily municipal
waste landfill located on the east side of Route 83,
approximately one—half mile south
of Route
137.
A.R.F.’s
facility serves all but the northern portion
of Lake County and
a
small portion of Northern Cook County.
The Chairman
of the LCB appointed
a special hearing panel,
the Regional Pollution Control Hearing Committee of
the Lake
County Board
(“Committee”), consisting of six County Board
Members.
Between October
17, 1988 and November
2,
1988,
several
public hearings were held with the Committee receiving testimony
and evidence as well as oral and written public comment.
Prior
to the commencement of hearing,
Mr. William Alter
filed an appearance
in opposition to
a grant
of the
application.
Also prior
to hearing,
A.R.F.
filed
a motion
to
disqualify County Board Members F.T.
“Mike” Graham,
Bruce Hansen,
and James Bolen on the grounds that they were biased and
prejudiced against A.R.F.
The motion was argued on the first day
of hearing and the three Board Members were questioned during
the
first
and second days of hearing.
The LCB subsequently
considered and denied A.R.F.’s motion.
On December
12, 1988,
after the hearings and post—hearing
comment period was complete,
the Committee issued
its findings
and recommendations
to the full LCB.
The Committee found
that
A.R.F.
had failed
to satisfy each
of the six criteria set forth
in Section 39.2 of the Act.
On December
28,
1988,
the full LCB,
by
a vote of
19—1,
adopted
a Resolution denying the request
of
A.R.F.
for vertical expansion.
Regulatory Framework
Ruqui remcnts
for
tho
siLi~ij01 now
region~tl
pollitJon
control facilities
are specified in the Act.
Section 39(c)
of
the Act provides that “no permit for the development
or
construction
of
a new regional pollution control facility may be
granted by the
(Environmental Protection) Agency unless
the
applicant submits proof
to the Agency that the location
of said
facility has been approved by the County Board of the county
if
in
an unincorporated area
~
in accord~ncewith Section 39.2
of
this Act”.
The six applicable criteria
set forth
in Section
1
At the time of the filing of the Application, Section
39.2(a)
of the Act dontained eight criteria.
Since
the
propos~l
is for
a non—hazardous waste facility,
and criterion P
covers
hazardous waste facilities,
that criterion
is not applicable.
Criterion #8
is inapplicable because
it covers requirements
regarding location within
a regulated recharge area,
for which,
at
the time of
filing of
the Application,
no such requirements
(continued)
99—282
—3—
39.2(a)
are,
in pertinent part:
(a)
The County Board
***
shall approve the site location
suitability for
such new regional pollution control
facility only
in accordance with
the following criteria:
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 minimize the effect on the
value
of the surrounding property;
4.
the facility is located outside the boundary of the
100 year
flood plain,
or
the site is flood—proofed;
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;
and
6.
the traffic patterns
to or
from the facility are
so
designed
as
to minimize the
impact on existing
traffic flows.
Section 40.1 of the Act charges this Board with reviewing
whether
the LCB’s decision was contrary
to the manifest weight of
the evidence.
E&E Hauling,
Inc.
v.
Illinois Pollution Control
Board,
116 Ill.App.3d
586, 451 N.E.2d 555
(2nd Dist.
1983),
aff’d
in part 107 Ill.2d
33,
481 N.E.2d 664
(1985); City of Rockford
v.
IPCB,
125 Ill.App.3d 384,
386, 465 N.E.2d 996
(1984);
Waste
Management
of Illinois,
inc.,
v.
IPCB,
122 Ill.App.3d 639,
461
N.E.2d
542
(1984).
The standard
of manifest weight
of the
evidence
is:
A verdict
is
...
against the manifest weight
of the evidence where
it
is palpably
erroneous, wholly unwarranted,
clearly the
result
of passion or prejudice,
or appears
to
be arbitrary, unreasonable,
and not based upon
the evidence.
A verdict cannot
be set aside
merely because the
jury (County Board)
could
have drawn different inferences and
conclusions from conflicting testimony or
because
a
reviewing court
(IPCB) would have
reached
a different conclusion
...
when
were yet adopted.
99—283
—4—
considering whether
a verdict was contrary
to
the manifest weight
of the evidence,
a
reviewing court
(IPCB) must view the evidence
in the light most favorable
to the appellee.
Steinberg
v.
Petra,
139 Ill.App. 3d
503,
508
(1986).
Consequently,
if after reviewing the record,
this Board
finds
that the LCB could have reasonably reached
its conclusion,
the LCB’s decision must be affirmed.
That a different conclusion
might also be reasonable
is insufficient; the opposite conclusion
must be evident
(see Willowbrook Motel
v.
IPCB,
135
Ill.App.3d
343, 481 N.E.2d
1032
(1985)).
Additionally, this Board must evaluate whether the LCB’s
procedures used in reaching its decision were fundamentally fair,
pursuant
to Section 40.1
of the Act
(see E&E Hauling).
Since the
issue
of fundamental fairness
is
a threshold matter,
the Board
will consider
this matter
first.
Fundamental Fairness
Ill.
Rev.
Stat.
1987
ch. 111
1/2 par.
1040.1
requires that
this Board review
the proceedings before the LCB
to assure
fundamental fairness.
In E&E Hauling,
the first case construing
Section 40.1,
the Appellate Court
for the Second District
interpreted
statutory “fundamental fairness” as
requiring
application of standards
of adjudicative due process
(116
Ill.App.3d 586).
A decisionmaker may be disqualified for bias or
prejudice if “a disinterested observer
might conclude that he,
or
it,
had
in some measure adjudged the facts as well as
the law of
the case in advance of hearing it”
(Id.,
451 N.E2d
at
565).
It
is also important to note that in an analysis of
bias or
prejudgment elected officials are presumed
to be
objective and
to
act without bias.
The Illinois Aopellate Court discussed
triis
issue
in
Citizens
for
a
ButLer
Environment
v.
Illinois
Poliut:.io~
Control
Board,
152
Ill.App.3d
105,
504
N.E.2d
166
(1st
Dist.
1987:
In addressing
this issue, we note that it
is
presumed that an administrative official
is
objective and
“capable of judging
a particular
controversy fairly on the basis of
its own
circumstances.”
(United States
v. Morgan
(1941),
313 U.S.
409, 421,
85L.
Ed.
1429,
1435,
61
5. Ct.
999,
1004).
The mere fact
that the official has taken
a public position
or expressdd strong views
on
the issues
involved does not serve to overcome that
presumption.
(Hortonville ~3ointSchool
District No.
1
v. Hortonville Educational
Association (1976),
426 U.S.
482, 49
L.
Ed.
2d
1,
96
S. Ct. 2308).
Nor
is
it sufficient
to
99—284
—5—
show that the official’s alleged
predisposition resulted from his participation
in earlier proceedings on the matter
of
dispute.
(Federal Trade Commission
v.
Cement
Institute
(1948),
33
U.S.
683, 92
L.
Ed.
1010,
68
S.
Ct.
793).
504 N.E.2d
at 171.
As the Board noted
in Waste management
v. Lake County, PCB
88—190,
April
6,
1989,
a decision must
be reversed,
or vacated
and remanded,
where
“as
a result
of improper
ex parte
communications,
the Agency’s decisionmaking process was
irrevocably tainted
so
as
to make the ultimate judgment
of the
Agency unfair,
either
to an innocent party
or
to the public
interest that the Agency was obliged
to protect”
(E&E Hauling,
451 N.E.2d at
571).
Finally, adjudicatory due process
requires
that decisionmakers properly
“hear” the case and that those who
do not attend hearings
in
a given case base their determinations
on the evidence contained
in the transcribed record
of such
hearings
(Id.,
451 N.E.2d
at
569).
(Also see E&E Hauling.)
A.RF.
claims that the LCB decision should be reversed
because
it resulted from
a biased
and prejudiced County Board.
However, A.R.F.
does not offer support for
this claim.
Apparently,
A.R.F.’s claim
is based upon
its motion to disqualify
the three Members
of the County Board filed October
13,
1988.
During the LOB hearings,
the three Board Members,
Graham,
Hansen,
and Bolen, were examined at
to their ability
to vote objectively
on 7½.R.F.’s application.
On December
28,
1989,
the LCB,
in the
Resolution adopted on that date,
denied A.R.F. ‘s motion.
On
appeal
to
this Board, A.R.F.
offers no argument
in opposition
to
the LCB denial
of the motion to disqualify.
In fact,
the only
argument A.R.F.
offers
in relation to
the fundamental fairness
issue apparently
is
to suggest that the LCB presents
a “moving
target”.
.A.R.F.
Brief
at
1.
A.R.F.
states:
No matter what has been offered or performed
by the applicant,
Lake County has required
more.
If the applicant satisfied Lake
County’s initial
“standards”
in
a subsequent
local siting
request, Lake County demands yet
more.
If
a third
request was filed which met
the former demands,
Lake County would demand
yet more.
It
is
a never ending cycle
of
increased demands
that cannot
be met at the
local
level.
This
is yet another example of
the Not In My Back Yard or NIMBY syndrome that
Lake County has exhibited so many times
in the
past.
(Citations omitted).
This never
ending
cycle
is fed by the unfounded statements
of
Lake County’s witnesses that are not based
upon any recognized standards.
Throughout the
99—285
—6—
hearings,
counsel
for A.R.F.
asked Lake
County’s hired witnesses what standards they
were relying upon
in reaching their
“conclusions.”
None of Lake County’s
witnesses could definitely point
to any
regulations such as the Pollution Control
Board’s
(“Board”) regulations
as guiding
their
“conc1usions~ regarding A.R.F. ‘s landfill
design and
operation.
The Board cannot let
Lake County’s decision stand where the shaky
foundation of its decision
is based upon
nothing but illusory standards and
imagination.
A.R.F. Brief,
pp.
1—2.
The Board
is not persuaded.
A.R.F.
has offered no objective
evidence
to this Board
to demonstrate that the LCB decision was
the
result of
a fundamentally unfair process.
Thus,
the Board
finds
that the proceedings before
the LCB were conducted
in
a
fundamentally fair manner and will proceed
to the merits
of the
Application.
Statutory Criteria
A.R.F.
claims that
the LOB’s conclusions
as
to each of the
criteria are against the manifest weight
of the evidence,
and
that the LCB’s decision should be reversed and site location
approved.
We
will review each
of these criteria
in
turn.
Criterion
No.1
Section 39.2(a)(l)
of the Act requires
that the applicant
establish that “the facility
is necessary
to accommodate
the
waste
needs
of
the
area
it
is
intended
to
serve”.
Re
event
case
la~
from
the
Second
Distr
ict
Appellate
Court
provides
guidance
on
the
applicable
analysis
of
this
criterion:
Although a petitioner need not show absolute
necessity,
it must demonstrate
an urgent need
for the new facility
as well
as the reasonable
convenience
of establishing
a new or expanding
an existing landfill.
...The petition must
show that the landfill
is reasonably required
by the waste needs of the area,
including
consideration of its waste production and
disposal ca~pabilities.
Waste
Management
of
Illinois,
Inc.
v.
PCB,
175 Ill. App.3d
1023,
530 N.E.2d
682
(2nd Dist.
1988);
citing Waste Management
of
Illinois,
Inc.
v.
Pollution Control
Board, 123 Ill. App.3d
1075,
463 N.E.2d
969
(1984).
99—286
—7—
The LCB
found that A.R.F.
failed
to establish that its
proposed facility
is necessary to accommodate the waste needs
of
the area
it
is intended
to serve with any credible evidence,
stating that
the analysis of Mr. Andrews,
A.R.F.
‘5
expert witness
on the criterion, was not credible for the following reasons:
A)
He failed
to do
a complete analysis
of
the remaining capacity of
the landfills
in and
around
the Lake County area.
Specifically, Mr. Andrews failed
to
include several
active landfills
to wit;
active landfills being used by Lake
County.
He did not consider
the
expansion
of the Techny landfill near
Northfield,
the East Troy landfill
in
nearby Wisconsin,
the Zion,
Lake Bluff,
Land
of Lakes,
or the Lake County Grading
landfills,
all which accept waste from
the A.R.F. ‘s service area.
B)
He failed
to take into consideration the
Lake County Joint Action Solid Waste
Planning Agency plan for recycling,
composting and other
technologies
designed
to minimize the need for
landfill capacity.
C)
He failed
to consider proposed
facilities,
whether
in or
out of
the
County,
if such facilities would be
capable
of handling
a portion of
the
waste disposal needs
of the County and
will
be capable
of doing so prior
to the
projected expiration
of the current
disposal
capabilities within the County,
such that the needs of
the County will
continue
to be
served.
Specifically, Mr.
Andrews failed
to take into consideration
the Bartlett Baleful
and, further,
failed
to adequately determine the
Pheasant Run landfill and the Mallard
Lake landfills
in DuPage County,
Illinois.
D)
Independent
reports included
in the
A.R.F.
application do not support the
need
for
a new disposal site.
The
records provided indicate that from the
SWPA and the IEPA that there
is adequate
existing landfill capacity until between
1994
and 1997.
99—287
—8—
(Res.
at 3.)
It
is well established that the burden
is upon A.R.F.
to
demonstrate that the LCB’s
decision is contrary to the manifest
weight
of the evidence.
In support of its application, A.R.F. presented testimony at
the LCB hearing
of Mr.
Douglas Andrews,
a registered professional
engineer.
Mr. Andrews testified
that he prepared
a written
report contained in the Application which addresses the issue
of
need.
This report,
which
is contained
in Volume II
of the
Application,
at pages
529
to
556,
identifies current waste
disposal facilities serving the Lake County area and provides
projections
on future disposal capacities.
In his report, Mr. Andrews identified
three municipal waste
disposal facilities
(Mallard Lake, BFI,
and Pheasant Run)
other
than A.R.F.’s which may
be available
to
accept municipal waste
from Lake County.
The Report indicates that if use
of available
capacity
is projected from mid—1987 and
a
5 percent annual
increase
is assumed,
the entire present disposal capacity of the
region would be exhausted by the end of
1993.
The Report notes,
however,
that the Pheasant Run capacity cannot be relied upon
with certainty because
(1)
it
is
located outside
of the area
which A.R.F.’s facility is intended
to serve, and
(2)
the
facility
is beyond
the jurisdiction and control of the State
of
Illinois.
(Appi.
540—541).
Similarly the Report notes
that the
Mallard Lake landfill capacity cannot be relied upon because
it
is located
in DuPage County and the owners have
in recent years
attempted
to
limit
the
amount
of
out—of—county
refuse
accepted
at
the facility.
(App.
541).
The Report then offers
a second
evaluation which excludes the Pheasant Run and Mallard Lake
landfills
from the above projection and estimates capacity
exhaustion
in mid—1991.
(App.
542).
r4r.
Andrews testified
that
in mid—1987 there was
approximately 55,600,000 cubic yards
of capacity available and
that the rate of use was on an annual basis approximately 7.5
million cubic yards.
(R.
10/17 at 84).
Mr.
Andrews testified
that he arrived at the 1993 exhaustion date by adding five
percent
to the rate of use and subtracting
the number
from the
amount
of available capacity until
the available capacity was
exhausted.
(Id.).
Mr. Andrews stated that he determined
the
available capacity by reference to
a 1987 Illinois EPA
publication entitled “Available Disposal Capacity For
Solid Waste
in Illinois”, Attachment No.
1
to the Andrews’
Report.
(Id.
at
83).
Also attached
to the Andrews’ Report
are the following:
Attachment
No.
3
—
“Needs
Assessment
Under
the
Lake
County
Solid
Waste Management
Plan”,
dated February,
1988;
Attachment No.
4
—
“Regional Solid Waste Management Policy Plan
for Northeastern
Illinois” published
by the Northeastern Illinois Planning
Commission;
and Attachment No.
5
—
“Lake County Solid Waste
Management Plan Feasibility Study”.
Mr. Andrews stated that he
99—288
—9—
relied,
in part,
upon these documents
in the preparation of his
report.
(Id.
at 79).
On cross—examination,
Mr. Andrews testified that he decided
to add
a five percent increase
in his analysis
to waste received
at the four facilities identified
in the application because,
in
part,
DuPage County
is developing rapidly and apparently will be
increasing
its demand
for landfill space.
(Id.
at 121).
When
questioned
as
to whether the increased demand would affect only
the Mallard Lake landfill
in DuPage County
or would affect the
Lake County landfills also,
Mr. Andrews
responded:
Well,
there might be some increase also in
Lake County.
I
simply said that
I thought
if
you take DuPage County into account, you have
to allow
for some increase.
Maybe five
percent
is not the right percent.
Maybe
it
should be
I-iigher than that.
Maybe
it should
be
a little
lower than that but that’s the
number
I
used.
(Id.
at 122).
In
its brief on appeal,
A.R.F.
argues that the
uncontroverted evidence shows
an immediate need for
A.R.F.
‘S
vertical expansion.
A.R.F. argues that Lake County’s failure
to
offer “any evidence
to rebut this inescapable conclusion
is an
admission that this need exists...”
(A.R.F. Brief
at 3—4).
In
response to the decision
of the LCB,
A.R.F. maintains that the
Andrews Report incorporated each of the facilities enumerated
in
(A)
above
in
its need analysis and determined
that there
is
a
need
for A.R.F.’s facility.
Further,
A.R.F.
argues that it
considered
the potential
of alternatives
to landfilling, such
as
recycling,
and found that they would not reduce the need for
A.R.F.’s expansion.
Finally,
A.R.F. argues that independent
reports, such as the Lake County SWPA study
and the IEPA study,
support A.R.F.’s position that available capacity will
be
exhausted
by mid—1993.
Lake County argues that A.R.F.
failed
to carry
its burden
of
establishing need for its proposed expansion.
In support
of its
position, Lake County states that
Mr.
Andrews did not consider
the recent three year expansion
of the Techny landfill
in
Northfield
(R.
10/17 at
16).
Nor did he consider the East Troy,
Zion,
Lake Bluff,
Land of Lakes or Lake County Grading landfills
(app.
Ex.
7,
p.
546),
“all able
to accept waste from within
A.R.F.’s service area”.
(Lake County Brief at
5).
Further,
Lake
County states that Mr. Andrews did not consider
the potential
effect that
an intensive recycling and composting program would
have on the rate of disposal
and
the amount of remaining capacity
for landfills in and around the proposed A.R.F.
service area.
(Lake County Brief
at 6.)
Lake County also requests that the
Board consider the October
1988 update
of the IEPA Available
99—2~9
—10—
Disposal Capacity Report, which was not available at the hearings
but was disseminated publicly thereafter
and amends many figures
in the earlier
1987 report relied upon by Mr. Andrews.
Lake
County argues that although the Hearing Officer denied its
addmission into the record,
the Board may take judicial notice
of
the contents of the report pursuant
to 35
Ill.
Adm. Code 103.206.
Amicus Curiae Prairie Holdings Corporation and local
landowners
(“Prairie Holdings” collectively) also argues that
A.R.F.
did not demonstrate that its proposed expansion is
necessary to accommodate
the waste needs of the area
it
is
intended
to serve.
Basically, Prairie Holding’s arguments
paralleled
those
of Lake County,
i.e.,
that Mr. Andrews
(1)
excluded date about available disposal capacity,
(2)
disregarded
recycling and composting,
and
(3)
relied on reports
which refute
his conclusions.
The Amicus,
Prairie Holdings,
argues that need
in Lake
County has not been demonstrated because less
than half the waste
disposed
in lake County
is generated within the County
(Amicus
Brief,
p.
11).
The Board does not
today address whether such
a
consideration can be
a viable part of
a decision on the need
criterion.
In its reply brief, A.R.F.
responded
to many of
the
statements made
by Lake County and Prairie Holdings.
As
a preliminary matter,
the Board upholds the Hearing
Officer’s ruling on
the admissability of the October
1988 IEPA
report;
it
is not a part of the record on appeal.
Section
40,1
of the Act clearly
states that the hearing (before the Board)
shall
be based exclusively on the record before the county
board.
As this report was not before the Lake County board when
it rendered
its decision,
it
is properly not before
this Board.
Also,
the
Board
notes
that
on April
6,
1989,
the
Board
rendered
a decision upholding the LOB’s
denial
of
local siting
approval
to Waste Management of Illinois,
Inc.
Waste Management
of Illinois,
Inc.
v.
Lake county Board, PCB 88—190.
The
nat~~
of this criterion
is such that the analysis by the Lake County
Board
in this case
is strikingly similar
to
that in Waste
Management
much
of the same information was relied
upon,
and
similar
reasons for denial
of approval were given.
The Board’s
findings on this criterion are consistent with
the Board’s
decision in Waste Management.
The Board
finds
that its evaluation of
the LCB’s
decision on
Criterion No.1
is
a difficult call,
especially
in
light o~the
fact that there were
no witnesses presented
to rebut
the
testimony offered by A.R.F..
However,
the
Board
also believes
that
it
is necessary for its analysis
in
this instance
to place
the decision of
the LOB
in the context
in which
it was made.
As
this Board observes from its examination of the
record
in this
99—290
—11--
proceeding
the
issue
of
waste
disposal
programs
and
capacities
in
Lake
County
is
hardly
a
matter
of
first
impression
of
the
LCB.
The
LCB
has
reviewed
many
applications for landfill siting within
recent
years.
These
prior
reviews
included
extensive
analyses
of
waste
disposal
capacity
with
substantial
portions of the records
directed
to
the
issue
of
the
need
for
a
landfill.
These
prior
reviews,
in
most
cases,
were
further
appealed
to
this
Board
and
the
Second
District Appellate Court.
Moreover, during the time
that
the
LCB
has
handled
these
reviews
there
has
been
minimal
change
in
the
composition
of
the
siting
committees
and
the
board
itself.
Additionally,
Lake
County
has
itself
been
actively
engaged
in
waste
disposal
planning
through
it
agency,
the
Lake
County
Joint
Action
Solid
Waste
Planning
Agency
(“SWPA”).
Although
SWPA
did
not
testify
before
the
LCB
in
the
instant
record
(as
it
had
in
prior
LOB
siting
proceedings),
it
did
submit
a
public
comment
fully
reiterating
its
position,
and
concluding
that
the
A.R.F.
proposed
landfill
is
not
a
necessary
facility.
Taken
together,
these
observations
demonstrate
that
the
LCB
is
a
body
well—versed
on
the
issue
of
need
for
waste
disposal
capacity
in
Lake
County.
The
LCB
asked
pointed
questions,
which
indicated
that
the
witness
failed
to
consider
matters
among
those
noted
in
the
LCB’s
conclusions.
The
LCB
demonstrated
acute
knowledge
of
Criterion
No.1
issues,
and
was
clearly
not
satisfied
with
the
answers
received,
specifically
regarding the
availability
of
disposal
options
at
other
facilities.
As
noted
above,
the
LOB
found
that
A.R.F.
failed
to
establish
that
the
proposed
facility
is
necessary
to
accommodate
the
waste
needs
of
the
area
it
is
intended
to
serve,
finding
A.R.F.’s
witness’
testimony
incredible.
At
first
blush,
the
deficiencies
noted
by
the
LOB
may
seem
less
weighty
than
the
evidence
presented.
It
may
even
be
said
that
upon
review
of
the
same
evidence
this
Board
or
another
reviewing
court
may
have
reached
a
different
conclusion.
However,
under
the
manifest
weight
standard
and
given
the
understanding
of Criterion No.
1
issues
exhibited
by
the
LCB
as
noted
above,
as
well
as
the
fact
that
the
LCB
was
in
the
best
position
to
judge
the
credibility
of
the
evidence
presented,
the
Board
finds
that
the
LCB’s
findings
on
Criterion
No.1
ate
not
contrary
to
the
manifest
weight
of
the
evidence.
Criterion
No.
2
Section
39.2(a)(2)
of
the
Act
requires
that
the
applicant
establish
that
“the
facility
is
so
designed,
located
and
proposed
to
be
operated
that
the
public
health,
safety
and
welfare
will
be
protected.”
Matters
pertaining
to
Criterion
No.
2
encompass
approximately
half
of
the
Application,
and
a
large
amount
of
the
99—291
—12—
testimony presented at hearing.
The principal
A.R.F. witnesses
addressing Criterion No.
2 were Dr. Rauf Piskin
(R.
10/18 at
3 et
seq.)
and Mr. Michael
D. Andrews
(R.
10/19 at
87
et.
seq.).
County witnesses addressing this Criterion were Dr. Nolan
Augherbaugh
(R.
10/27
at
4
et.
seq.)
and Mr. George Noble
(R.
10/31 at
4
et.
seq.).
Criterion No.
2
encompasses,
by its nature,
a wide variety
of location,
design,
and
operational
issues,
of
varying
non-
technical
and technical nature.
Locational
issues
include
whether the landfill
is proposed
to be expanded
at
a physically
suitable
site,
in
consideration
of
at
least
local
geology
and
hydrogeology.
Design elements include the protective features
of
the
landfill
design,
such
as
a
landfill
liner,
leachate
collection system,
gas control system,
groundwater monitoring
system,
and surface water control system.
Also encompassed
in
Criterion
No.
2
are
a
variety
of
proposed
operational
elements,
including
type
arid
frequency
of
monitoring
of
air,
land,
and
water,
daily
operational
plans,
and
closure
and
post—closure
maintenance.
Apparently
not
all
of
the
many
potential
issues
related
to
Criterion
No.
2
were
found
by
the
LCB
to
enter
into
its
decision.
Rather,
the
LOB
cites
only
a
limited
number
of
issues
which
it contends contributed
to A.R.F.’s failure
to carry
its
burden
of
proof
with
respect
to
Criterion
No.
2.
After
noting
that
A.R.F.’s
proposal
was
to
“place
a
synthetic
membrane
liner
and
a
leachate
collection
system
directly
on
top
of
an
existing
landfill
and
create
a
new
landfill
on
top
of
the
existing
landfill”
(County
Res.
at
4),
the
County
found
certain
inadequacies
in
A.R.F.
‘s
proposed
design
and
operation.
A
brief
summary
of
the
County’s
reasoning
is
as
follows:
Refuse
deposited
in
a
landfill
decomposes
at
different
rates.
This
is
known
as
“differential
settlement.”
Placing
a
new
landtiil
with
its
attendant
liner
and
leachate
system,
directly
on
top
of
the
existing
landfill
could
threaten
the
integrity
of
both
the
liner
and
the
leachate
system.
The
constant
shifting
of
the
surface
beneath
the
new
landfill
would
eventually
cause
the
membrane
liner
to
rupture
and
tear
and
cause
the
leachate
collection pipes
to become clogged and possibly
break.
Also,
the
County
found
that
the
hydrogeology
of
the
area
was
not
examined
thoroughly.
The
County
heard
testimony
by
Dr.
Augherbaugh
and
by
Dr.
Piskin
that
there
are
sand
lenses,
which
are
pockets
or
columns
of
sand,
which
create
rivers
or
streams
to
allow
different
iiqu~ids
to
escape.
Although
borings
t~n
e~:
the
proposed
site
revealed
mostly
clay
characteristics,
sand
sear~is
were
present
running
through
the
clay.
A.R.F.’s
witness
testified
that
these
sand
lenses
were
discontinuous.
Lake
County’s
witness
testified
that
there
are
two
ways
to
prove
that
sand
lenses
are
discontinuous;
either
complete
excavation
or
a
9 9—292
—13—
prolonged permeability test.
The County found that A.R.F.
had
done neither
and,
therefore,
it could not be assumed that the
seams were discontinuous.
(County Res.
at
5.)
Further,
the
County found that several seams were not the only avenues by
which the leachate could
travel
through the A.R.F.
landfill.
There had been 40 borings performed for A.R.F.
which were back
filled
with
auger
spoils
rather
than
being
sealed
with
bentonite
grout.
The
County
stated
that
A.R.F.
had
experienced
leachate
leaks
from
the
existing
landfill
which
are
indicative
of
a
saturated
condition.
However,
the
County
found
A.R.F.
failed
to
place
any
monitoring wells
into
the aquifer
layer
to determine
whether
the
aquifer
has
been
contaminated
by
leachate.
A.R.F.
argues
that
the
LCB’s
finding
on
differential
settlement
is
wrong.
A.R.F.
maintains
that
it
is
operating
its
current
landfill
and
has
designed
its
vertical
elevation
“to
either minimize differential settlement or take
it
into
account.”
(A.R.F. Brief
at
27.)
A.R.F.
states that differential
settlement
is not
a concern because A.R.F.
is proposing
(1)
a
multiple
liner
system,
(2)
an 80 mil.
geomembrane,
(3)
compaction,
(4)
a
uniform
surface
on
the
existing
landfill,
and
(5)
a
leachate
collection
system
that
includes
two
back—up
systems.
(Id..)
A.R.F.
also
asks
the
Board
to
take
into
account
the superior credentials of A.R.F.
‘s
witnesses
(Andrews
and
Piskin)
versus
the
“unqualified
Lake
County’s
witnesses”
(Noble
and
Aughenbaugh).
(A.R.F.
Brief
at
16.)
Lake
County
argues
that
all
of
the
witnesses
agreed
that
differential
settlement
occurs
commonly
in
landfills
and
can
be
extensive.
Lake
County
states
that
its
witness,
Dr.
Aughenbaugh,
had
several
major
criticisms
of
the
structural
soundness
of
A.R.F.
‘s
proposed
expansion.
Dr.
Aughenbaugh stated that
A.R.F.’s
plan
to
reduce
differential
settlement
by
running
a
compactor over the trash would
be ineffective because once the
compactor
has been run over trash
8—10 times, no further
compaction can be achieved.
(R.
10/27 at
39—40.)
Dr.
Aughenbaugh also stated that
it
was unrealistic to put
a leachate
collection system and synthetic liner on top of
an old landfill
because, with the inevitability of differential settlement,
the
synthetic
liner
would
eventually
stretch
and
rip,
causing
the
leachate collection pipes to
settle, crack,
break,
and shear
off.
(Id.
at
43.)
Lake County also points
to Dr. Andrew’s
statement
that
he
knew
of
“no
reliable
way
to
predict
the
amount
of differential settlement which would occur”
(R.
10/19 at 108),
to support the LCB’s decision.
Amicus
Prairie
Holdings’
arguments
are
similar
to
Lake
County’s.
Prairie Holdings argues that the evidence shows that
landfills can experience significant differential settlement.
Prairie
Holdings
pointed
to
two studies discussed by Mr.
Noble,
one
of
a
vertical expansion
in Pontiac Michigan and the other
of
a
landfill
at
Mission
Canyon,
California.
(R.
10/31
at
28—29.)
Prairie
Holdings
argued
that
A.R.F.’s
proposed
“densification”
99—2 93
—14—
process
to minimize the effects of differential settlement
is not
supported by the Record.
A principal element
in this Board’s review of
the LOB
decision
is whether,
in light
of
the manifest weight
of the
evidence standard,
the decision of the LOB was “palpably
erroneous, wholly unwarranted, clearly the result
of passion
or
prejudice,
or appears
to be arbitrary, unreasonable, and
not
based
upon
the
evidence”
(Steinberg
v.
Petra,
supra)
given
the
nature
of
the
testimony.
Despite
attempts
to
call
into
question
the
expertise
of both
Mr.
Noble
and
Dr.
Aughenbaugh,
this
Board
in
its
own
technical
review
of
the
materials presented
in the record,
cannot find
fundamental
fault
with
the
pertinent
conclusions
drawn by these
witnesses.
Where conflicting testimony exists,
it
is
in
controlling part disagreement among apparently qualified and
competent
individuals.
Moreover,
given
this
conflicting
testimony,
it
is not against the manifest weight
of the evidence
that
a
majority
of
the
LCB found
that A.R.F. had not carried its
burden of proof with respect
to geologic and hydrologic aspects
of
Criterion
No.
2.
Accordingly,
this
Board
must
affirm
the
LOB’s
decision
on
Criterion No.
2.
The
analysis
of
the
differential
settlement
aspect
of
Criterion
No.
2
is
dispositive
of this matter.
However,
for
the
record,
this
Board
notes
that
the
LCB
included
additional
factors
in
its
decision
on
Criterion
No.
2.
These
include
considerations
of
leachate
management
hydrogeology, post—closure care,
and
litter
control.
(Resolution
at
5—6.)
This
Board
does
riot
find
that
the
LCB’s
decision
on
these
additional
factors,
in
their
aggregate,
is against
the manifest weight
of the evidence.
Criterion No.3
Section
39.2(a)(3)
of
the
Act
requires
that the applicant;
establish
that
the
proposed
facility
is
located
so
as
to
minimize
incompatibility
with
the
surrounding
area
and
to
minimize
the
effect
on
the
value
of
the
surrounding
property.
On
this
issue,
A.R.F.
presented
Jay
N.
Heap
(R.
10/20
at
4
et.
seq.).
The
County’s
witnesses
included
Herbert
Harriso:i
(R.
11/2
a.m.
at
6
et.
seq.)
and
Robert
Mosteller
CR.
10/31
p.m.
36
et.
seq.).
Prafrie
Holdings
witnesses
included
Anthoney
Tives
(R.
10/27
a.m.
at
5
et.
seq.
)
and
Lane
I(endig
(R.
10/27
a.m.
at
24
et.
seq.).
Jay
Heap,
a
rea’l
estate
appraiser,
determined
that A.~t’.‘s
proposed
facility
will
minimize
incompatibility
with
the
character
of
the
surrounding
area
and
will
minimize
the
eCL.t
on
the
value
of
surrounding property.
Included
within
his
an~~’sis,
Mr.
Ueap
conducted
a
visual
impact
study
using
a
helium
fill:d,
optic
orange,
36
inch
balloon.
Mr.
Heap
placed
the
balloon
99—294
—15—
approximately
where
the
highest
point
of
the
proposed
site
would
reach
and
attempted
to
view
the
balloon
from
various
positions
in
a
one
mile
square
area
around
the
site.
Mr.
Heap
testified
that
most
of
the
areas
where
the
landfill
was
visible
were
predominantly agricultural
areas
rather than residential
areas.
(R.
10/20
a.m.
at
25..)
Also included
in Mr. Heap’s analyses are
(1) A.R.F.’s plans for construction and operation,
(2)
the zoning
land
usage
and
principal
characteristics
of
the
site,
and
(3)
an
analyses
of
the
residential
sales,
vacant
land
sales,
and
building
permit
issuance.
Lake
County’s
witness,
Mr.
Herbert
Harrison,
testified
that,
in
his
opinion,
Mr.
Heap’s
conclusion
was
not
supported
by
the
report.
Harrison
testified
that
Heap’s
analysis
failed
to
include
a
“before
and
after”
analysis
by
studying
property
values
before
and
after
the
construction
of
the landfill and/or
a
comparative
study
of
property
values
by
studying
properties
remote
from
the
site
and
then
comparing
them
to
closer
properties.
(R.
11/2
a.m.
at
19—20,
29—30.)
Harrison
also
testified
that
studies
have
shown
a
general
tendency
towards
an
increase
in
property
values
in
areas
surrounding
landfills
or
gravel
pits
as
the
date
of
closure
of
the
facility
nears.
Lake
County
argues
that
no
such
study
was
done
by
Mr.
Heap
in
this
case.
Prairie
Holdings
argues
that
the
visible
impact
(balloon)
study
was
inconclusive
because,
inter
alia,
it
failed
to
take
into
account
increased
visibility
during
winter
when
the
trees
are
bare
(Amicus
Brief
at
28).
Prairie
Holdings
also
argues
that
proposed
expansion
does
not
minimize
the
incompatibility
with
nearby
wetland
resources,
although the LCB
did not rely on this
in
its
denial
on
Criterion
No.
3.
Criterion
No.
3
calls
for
the
facility
to
be
located
so
as
to
“minimize”
incompatibility
——
but
does
not
allow
for
rejection
simply because there might be some reduction
in value.
A.R.F.
Landfill,
Inc.
v.
Lake County,
PCB 87—51,
Slip Op. 10/1/87
at
24;
citing Watts Trucking Service, Inc.,
v.
City
of Rock
Island
(PCB
83—167).
More
is required
of an applicant than
a
de minimus
effort
at minimizing the facility’s impact.
An applicant must
demonstrate that
it has done or will do what
is reasonably
feasible to minimize incompatibility.
Waste Management
of
Illinois,
Inc.
v.
IPCB,
123
Ill. App.3d 1075,
1090
(2nd Dist.
1984).
The
Board
finds
that
the
LCB’s
findings
on Criterion No.
3
are
not
against
the
manifest
weight
of
the
evidence.
The
Board
cannot
find
fundamental
fault
with
the
conclusions
drawn
by
the
witnesses
who
testified
on
behalf
of
A.R.F.
and
the
County.
In
the
briefs,
both
the
LOB
and
A.R.F.
debate
the
propriety
of
examination
of property values
before
and after the introduction
of
a landfill
into the area.
The Board finds that the witnesses
held differing but viable views on this aspect,
as
is also
99—295
—16—
conflicting evidence on the issue of minimization of
the impact
upon the character
of the surrounding area and whether
the
minimization efforts
as proposed are sufficient.
Because there
is viable testimony on both sides of the Criterion No.
3 issue,
the Board finds that determination of
the LOB on Criterion No.
3
is not against the manifest weight
of the evidence.
Criterion No.
4
Section 39.2
(a)(4)
of
the Act requires that the applicant
establish that “the
facility
is located outside the boundary
of
the
100
year
flood
plain
or
the
site
is
flood—proofed”.
The
LOB
found
that A.R.F.
failed
to meet its burden of proof on this
criterion.
The principal A.R.F. witness addressing
this
criterion
was
Mr.
Michael
D.
Andrews,
P.E.
A.R.F.
argues
that
because
it
is
proposing
a
vertical
elevation
of
its
current
facility,
the
proposed
facility
will
be
well
above
the
100
year
flood
plain.
(A.R.F.
Brief
at
42.)
Further,
notwithstanding
that
the
proposed
site
is
not
in
a
flood
plain,
A.R.F.
argues
that
it
would
provide
flood
protection
for
the
landfill
for
a
25—year
storm
and
the
surrounding area for
a
10—year
storm.
(Id.
at
42.)
The
LOB
found
that
A.R.F.
had
failed
“to
present
any
evidence
establishing
either
that
the
proposed
expansion
is
totally
outside
of
a
flood
plain
or
that
the
site
is
adequately
flood—proofed.
(Res.
at
7.)
Specifically,
the
LOB
noted
that
A.R.F.’s expansion would
include areas
near
the entrance gate and
ticket house presently located
at the facility.
The LCB found
no
evidence
to
determine
whether
or
not
these
areas
are
in
a
flood
plain.
Further,
the
LCB
found
that
“the
retention
pond
tnat
is
clearly
in
the
flood
plain
was
not
built
to
accommodate
a
25—year
storm”.
(Res.
at
8.)
When
asked
whether
there
are
any
flood
plains involved, Mr.
Andrews,
A.R.F.’s
witness,
testified
that
the
elevation
of
~i~:ec
in
the
100—year
flood
plain
is
approximately
799
feet.
(R.
10/19
a.m.
at
133.)
Mr.
Andrews
stated
that
the
landfill
offict~
:~id
shown
as
the
equipment
building
on
Applicant’s
Exhibit
21
p~je
138
...
are
built
at
elevation
800
at
floor
level.
So
Some
of
the
area
around
these
buildings
is
within
the
100
year
flood
plain.
(Id.)
Also,
Mr.
Andrews
stated
that
a
“consideranle
amount
of
the
area
in
the
28.6
acres
north
of
the
landfill
is
below
the
800
foot elevation.
The purpose of this
28.6
acres
is
to
“create
a
place
where
detention
of
drainage
and
sedimentation
can
occur”.
(Id.
at
127—128.)
Thus,
Mr.
Andrews
concluded
“some
of
that
area
is
flood
plain
or
within
the
boundary
of
the h~i~1~~d
year
flood
elevation”.
(Id.
at
133.)
However,
when
Mr.
~‘~inkews
was
asked
whether
the
site
has
been
properly
flood—proof~d,
~e
responded
“this
site
involves
placement
of
waste
only
ahov~
the
840
elevation.
So
any
waste
placement
...
is
well
above
the
hundred
year
flood
plain”
(Id.
at
134).
99—29 6
—
17—
Based
on
this
Board’s
review
of
the
record,
and
particularly
that
portion
discussed
above,
this
Board
believes that the LCB’s
decision
is
not
against
the
manifest
weight
of
the
evidence.
A.R.F.’s
own
witness
testified
on
direct
examination that some
of
the
area
is
within
the
boundary
of
the
100—year
flood
plain.
Thus,
this
Board
believes
that
the
LOB
could
have
reasonably
found
that
A.R.F.
failed
to
demonstrate
that
the
facility
is
located
outside
of
the
100—year
flood
plain.
The
Board
notes,
in
passing,
that
the
LOB’s
Resolution
is
somewhat
inarticulate on
this
point.
The
Resolution
states
“there
has
been
no
evidence
as
to
whether
or
not
A.R.F.
‘s
area
is
located
in
a
flood
plain”.
(Res.
at
8.)
This
Board
believes
that
there
is
evidence
on
this
issue;
however,
the
evidence
is
contradictory and does
not
lend
itself
to
clear
interpretation.
Nonetheless,
the
LCB’s
decision
on
this
criterion
is
not
against
the
manifest
weight
of
the
evidence.
Criterion No.
5
Section
39.2(a)(5)
requires
the
Applicant
to
demonstrate
that
“the
plan
of
operations
for the facility
is designed
to
minimize
the
danger
to
the surrounding area from fire,
spills,
or
other
occupational
accidents.”
The
LOB
found
that
A.R.F.
failed
to
make
this
demonstration.
In
support
of
its
finding,
the
LOB
stated
in
part:
“The
applicant
has
truly
not
presented
any
contingency
plan
to
deal
with
the
leachate
or
hazardous
gas
condensate.
There
was
no
clear
plan
for
dealing
with
spills
of
any
hazardous
materials
which
may
occur
...
the
application
contained
no
provision
for checking the
leachate
control
system
before
putting
waste
into
the
landfill.
(Res.
at
8.)
A.R.F.
argues
that
it has extensive safeguards
in place
to
minimize
the
danger
to
the
surrounding
area
from
fire,
spills
and
operational
accidents.
These
safeguards
are
apparently
embodied
in
written
site
safety
policies
as
well
as
in
the
day—to—day
operations
of
the
facility.
(See
Appl.
at
101—109.)
In
its
Brief,
A.R.F.
argues
that
it
has
presented
a
comprehensive
contingency
plan
for
“hazardous”
gas
condensate.
(A.R.F.
Brief
at
46.)
A.R.F.
also
describes
its
“plan
to
deal
with
leachate”
by
reference
to
its
operating
plan
in
the
Application
(Appl.
at
22—148).
In
its
Brief,
Lake
County
argues,
in
part,
as
follows:
Leachate
removal
was
also
not
adequately
provided
for.
The
application
contained
no
provision
for
checking the leachate control
99—297
—18—
system before putting waste
into the landfill
(Transcript of 10—19—88 at page 176).
There
was no pre—set
level
to dictate removal of
leachate from the manholes (Id.
at page 180)
and no five day storage capacity for leachate
(Id.
at 184).
Leachate would
be pumped out of the manholes
overland;
in some cases up
to 225
feet from
the manholes into tanker trucks
(Transcript of
10—20—88 at page
58).
According
to A.R.F.’s
own estimates,
they will require
444 semi
trucks
a year
just to remove leachate from the
new landfill
(Id.
at
48).
This
is
approximately 2,000,000 gallons
of
leachate
a
year, which even Mr. Andrews admitted was a
“significant”
amount
(Id.
at
67).
(Lake
County
Brief
at
20.)
Based
on
its
review
of
the
record,
this
Board
finds
that
the
decision
of
the
LCB
is
not
against
the
manifest
weight
of
the
evidence.
Although
the Board stated
in Waste Management of
Illinois,
Inc.
v.
Lake County, PCB 88—190 that
“the Act
only
requires that the applicant propose
a plan which
is designed
to
minimize the danger
to the surrounding area from fire,
spiils,
or
other operational accidents,
the Board
is precluded from
reweighing
the
evidence
anew.
The
LOB
apparently
determined
that
the
above
quoted
deficiencies
covered
matters
necessary to
“minimize”
the
danger
to
the
surrounding
area;
that
is
not
unreasonable.
A.R.F.’s witness, Mr.
Andrews,
admitted that those
issues were not addressed
in A.R.F. ‘s
application
(R.
10/19
at
176—184).
Thus,
the
LCB’s
decision
is
not
against
the
manifest
weight
of
the
evidence.
Criterion
No.
6
Section
39.l(a)(6)
requires
the
Applicant
to
demonstrate
that
“the
traffic
patterns
to
or
from
the
facility
are
Sc)
designed
as
to
minimize
the
impact
on
existing
traffic
tlo~s’.
The
LOB
found
that
A.R.F.
failed
to
sustain
its
burden
of
puo~f
On
this
criterion.
Specifically, the LOB states,
in part:
The
traffic
section
of
the
application
was
prepared
by
Gerald
Salzman
who
testified
at
the
hearing
as
to
the
basis
of
his
conclusions
that
the
traffic
design
would
minimize
impact
on
traffic
flows.
Mr.
Salzman
did
not
take
into
account
the
proposed
uses
in
the
area
for
residential
sites
to
the
west
and
south
of
the
Site
on
his
impact
of
traffic
flow.
He
also
did
not
take
into
account
leachate
collection
trucks
entering
to
and
from
the
facility.
99—298
—19—
Further,
his
data
was
based
on
1983
daily
traffic reports from
the Illinois Department
of
Transportation
as
his
basis
for
analysis.
Mr.
Salzman
further
lacked
information
as
to
whether
or
not
the
local
roads
could
safely
accommodate
the
truck
traffic
from
the
vertical
expansion
since
many
of
the
roads
in
the
area
were
minor
roads
and
there
were
no
assurances
that
trucks
would
be
permitted
to
use
those
types
of
roads.
Mr.
Salzman’s
credibility
was
damaged
in
that
he
testified
that
the
accident
rate
along
Route
83
in
front
of
the
A.R.F.
site
was
relatively
low.
However,
Cliff
Scherer
of Illinois Department
of Transportation testified
to the contrary.
According
to Mr.
Scherer,
the lOOT
records
show
that
in
1986,
the
accident
rate
along
Route
83
in front
of the A.R.F.
site was
4
times
the
statewide
average
for
a
similar
type
of
road.
In
1987,
it was
1.1
times
the state
average.
In 1988,
the accident rate was 2.5
times
the
statewide
average.
Many
of
the
residents
further
testified
that
there
was
mud
and
debris
on
the
roadway
and
that
upon
rain
it
became
slick
and
dangerous
upon
passing
nearing the A.R.F.
site.
(Res.
at
9—10.)
A.R.F.
argues
that
it
was
the
only
party
that
introduced
an
expert
witness
to
discuss
this
criterion.
A.R.F.’s
witness,
Mr.
Gerald
Salzman,
testified
that
not
only
will
A.R.F.’s
facility
minimize
its
impact
upon
surrounding traffic flow,
but
it
will
safely
provide
for
an
increase in surrounding traffic.
(R.
10/24
p.m.
at
15.)
A.R.F.
argues
that
its
proposal
minimizes
impact
on
existing
traffic
flow
in
part
because,
A.R.F. will install right—
and
left—hand
turn
lanes
at
the
site
enterance.
A.R.F.
has
received
preliminary
approval
from
the
Illinois
Department
of
Transporation
for
the
proposed
improvements.
In
addition,
A.RF.
will
increase
the
curb
return
radius
to
a
minimum
of
40
feet
at
the
intersection
of
Routes
137
and
183
to
provided
a
wider
turning
radius
for
trucks
to
travel
through
the
intersection.
These improvements will insure that there will be not adverse
impact
upon the surrour~dingroadways
(R.
10/24 at 14—16)
(App.
1000—1005)
As a preliminary matter,
the Board believes that many of the
reasons given by the LCB for denial on this criterion are not
related
to
a consideration of whether
the traffic patterns are
designed so
as
to minimize the impact on existing traffic
flows.
For
example,
that
Mr.
Salznian
did
not
consider
proposed
residential
uses
is
not
relevant
to
an
evaluation
of
impact on
existing
uses.
That
is
a
future
occurrence.
Moreover,
the
LOB’s
99—299
—20—
consideration of past accident rates also are not relevant
to an
evaluation on this criterion.
The past accident rate may be used
to describe existing traffic flows,
but this Board does not see
the relevance of the past accident rate,
in and of itself,
with
respect to the impact of the proposed facility on existing
traffic flows.
Thus,
the LCB’s decision cannot be
supported on
these grounds.
The Board believes that the only relevant basis for the
LCB’s denial
is that
“Mr.
Salzman did not take into account
leachate trucks entering
to and from the facility”.
(Res.
at
9.)
A.R.F.
argues that Mr. Salzman did
take the leachate trucks
into consideration.
A.R.F. points
to Salzman’s testimony that
estimated one or
two additional leachate trucks per day and that
that was included
in A.R.F.’s sensitivity analysis, which
indicated that with improvements, the Route
83
intersection will
be able to accommodate
that
50 percent growth
in traffic.
(IL
10/24 p.m.
at 31—32.)
Lake county offers not argument
in
opposition.
The Board finds that the record reflects that Mr. Salzman
did consider the impact of
the leachate trucks entering and
exiting
the facility.
Thus,
the LCB’s decision cannot stand
on
that basis.
From further examination of the record,
the Board
finds that A.R.F.
adequately addressed the matter
which appear
to
be
of concern
to the LCB,
but which were not specifically
articulated
in the Resolution.
Because the Act only requires
that the traffic patterns
to and from the facility
be
so designed
as
to minimize the impact on existing traffic flows,
and because
the Board has determined
that the LCB’s decision
is not supported
by the relevant record,
the Board finds
that
the decision of the
LOB on Criterion No.
6 was against
the manifest weight of the
evidence.
Having found
that the LOB’s decision on
Criteria Numbers
1
through
5 are not against
the manifest weight
of
the evidence,
the Board affirms the LOB’s decision to deny A.R.F.
‘S
application.
The Board notes that ARF filed, on May
5,
1989,
a Motion For
Admission
of Lake County’s Study.
ARF advanced
several arguments
in support
of
its motion and also waived the decision deadline
to
June 23,
1989.
As the Board upheld the Hearing Officer’s ruling
on the admission of
the October
1988 IEPA Report,
the Board
similarly denies the admission
of the Lake County Study from the
record
in this case.
Section
40.1
of the Act clearly states that
the hearing shall be based exclusively on the record before the
county board.
As th~is report was not before the Lake County
Board
in the record on A.R.F.’s Application,
it
is not before
this Board on review.
This Opinion constitutes
the Board’s findings
of fact and
conclusions of
law.
99—300
—21—
IT IS
SO ORDERED.
Board Members
3.
Anderson,
3. Marlin
&
3.
Theodore Meyer
concurred.
I,
Dorothy M.
Gunn, Clerk
of the Illinois
Pollution Control
Board, hereby certify that the above Opinion was adopted
on
the
~~-‘-
day of
~
.‘—.~z
,
1989 by
a vote
of
7—c
.
/
~
~)
Dorothy M.~unn, Clerk
Illinois Pollution Control Board
99—301
