ILLINOIS POLLUTION CONTROL BOARD
April
6, 1989
WASTE MANAGEMENT OF ILLINOIS,
INC.,
)
)
Petitioner,
v.
)
PCB 88—190
LAKE COUNTY BOARD,
Respondent.
MR.
DONALD
J.
MORAN,
PEDERSEN
&
HOUPT,
APPEARED ON BEHALF
OF
PETITIONER,
MESSRS.
FRED
L.
FOREMAN, MITCHELL
I. HOFFMAN, AND LARRY M.
CLARK,
LAKE COUNTY STATE’S ATTORNEYS OFFICE, APPEARED ON BEHALF OF
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before the Board on the November
23,
1988
petition
for appeal filed
by Waste Management
of
Illinois,
Inc.
(“WMII”) pursuant to Section
40.1
of the Environmental Protection
Act
(Ill.
Rev.
Stat.
ch. 111—1/2, par.
1040.1 (1987)
(“Act”).
WMII
appeals
the November
1,
1988, decision of the Lake County
Board
(“LCB”) denying
local siting approval
to WMII’s proposed
landfill
in Lake County, Illinois.
WMII
contends that procedures
used by the LCB
in reaching
its decision were fundamentally unfair,
and that
the decision of
the LCB
in denying WMII’s Application
foL
Site Location Approval
For a Nonhazardous Sanitary Landfill
(“Application”)
is against
the manifest weight
of the evidence.
Based on the
record before
it,
this Board
finds
that the
hearing below was conducted
in
a fundamentally fair manner.
We
additionally
find that
the decision
of the LCB
to deny WMII’s
Application based
on failure
of WMII
to meet its burden of proof
on the statutorily—defined criteria
is not against
the manifest
weight of
the evidence.
The decision of the LCB
is accordingly
affirmed.
HISTORY
On May
6,
1988 WMII submitted
its Application to the LCB for
approval pursuant
to Section
39.2 of
the Act.
In
its Application
WMII proposed
to design,
construct,
operate and own a solid waste
98—43
—2—
landfill located on approximately 160 acres
of land northeast of
and adjacent to the intersection of State Route 83 and Peterson
Road
in Frernont Township,
Lake County,
Illinois.
The Chairman of
the LCB appointed a special hearing panel, The Regional Pollution
Control Hearing Committee of the Lake County Board
(“Committee”),
consisting
of seven county board members.
Between August
15,
1988 and September
1,
1988,
13 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
and
A.P.F.
Landfill,
Inc.
filed appearances
in opposition
to
a grant
of the Application.
Also prior
to the commencement
of hearing,
WMII filed
a motion
to disqualify a portion of the members
of the
LCB from hearing
the case.
Specifically, WMII moved
to
disqualify County Board Members F.T.
“Mike” Graham, Bruce Hansen,
Norman Geary,
and C.
Richard Anderson on the grounds
that they
were biased and prejudiced against WMII
(see following).
The
motion was argued
on the
first day of hearing where
WMII
also
questioned the four
challenged members.
The LCB subsequently
considered
and denied WMII’s motion.
On October
25,
1988,
after
the hearings and post—hearing
comment period were complete,
the Committee issued its findings
and recommendation
to the full LCB.
The Committee
found
that
WMII had satisfied its burden of proof regarding one
of
the
statutory criteria,
criterion
#4, but had failed
to satisfy
the
remaining
five criteria,
#1,
#2, #3,
#5, and
#6.
The Committee
recorded separate findings and votes on each of the six
applicable criteria, and voted
6—1 for denial
of the
Application.
On November
1,
1988,
the full LCB by
a vote of 16—5
accepted
the Recommendations
of the Committee as
its own
resolution
(“Resolution”)
and denied the Application.
The LCB,
by
the
same
vote,
resolved
to adopt
the findings of
the Committee
as the findings
of
the full LCB.
On November
23,
1988, WMII filed
the instant appeal.
Hearing before this Board was held on February
3,
1989,
in
Waukegan,
Illinois.
Briefs were filed
by WMII
on February
15,
1989 and
by the LCB on February 24,
1989.
WMII filed
a Reply
Brief
on March
6,
1989.
REGULATORY FRAMEWORK
Requirements for
the siting of new regional pollution
control facilities are specified
in the Act.
Section 39(c)
of
the Act provides
that
“no permit
for
the deve1oprnc~ntor
const..ruction
o~ a
ne4
regional
pollution
conlrol
i~acility
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
98—44
—3—
in
an unincorporated area
~
in accord~ncewith Section
39.2 of
this Act”.
The six applicable criteria
set forth
in Section
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
the LCB’s decision.
Specifically,
this Board must determine
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 I11.App.3d
384,
386,
465 N.E.2d
996
(1984);
1
At the time of the filing
of the Application,
Section
39.2(a)
of the Act contained çight criteria.
Since
the proposal
is for a
non—hazardous waste facility,
and criterion
#7 covers hazardous
waste
facilities,
that
criterion
is
not
applicable.
Criterion
#6
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 were yet adopted.
98—45
—4—
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 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
(E&E Hauling, supra).
Since
the issue
of fundamental fairness
is
a threshold matter,
the
Board will consider this matter first.
FUNDAMENTAL FAIRNESS
Ill. Rev. Stat.
1986 ch No.
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
distinterested 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.E.2d at
565).
It
is also important
t~o
note
that in an analysis of bias
or
prejudgment elected officials
are presumed to be objective and to
act
without
bias.
The
Illinois Appellate Court discussed
this
issue
in Citizens
for
a Better
Environment
v.
Illinois Pollution
Control Board,
152
Ill.
App.
3d
105,
504 N.E.2d
166
(1st Dist.
1987:
98—46
—5—
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
S. Ct.
999,
1004).
The mere fact that the
official has taken a public position or expressed
strong views
on the issues involved does not serve
to
overcome that presumption.
(Hortonville Joint School
District No.
1
v.
Hortonville Educational Association
(1976), 426 U.S.
482,
49
L.
Ed.
2d
1,
96
5.
Ct.
2308).
Nor
is
it sufficient
to 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.
A decision must
be reversed,
or vacated
and
remanded, where
“as a result of
improper ex parte communications,
the agency’s
decisionmaking process was irri~cably 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”
(Id.,
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).
WMII claims that
the process by which the LCB considered
and
ruled
on WMII’s Application was fundamentally unfair because
certain county board members
had prejudged
the Application.
Specifically, WMII claims that before hearing on the Application,
eight county board members had
in some measure adjudged the facts
of the Application,
and had more than
a mere predisposition
against
the Application.
The eight which WMII named
are Norman
C.
Geary, F.T.
“Mike” Graham, Bruce Hansen,
C.
Richard Anderson,
Debris
Axelrod, Carol Calabresa,
John Reindl,
and James
E.
Dolan.
Initially,
the Board
finds
that of these
eight LCB members,
WMII challenged
only four,
Geary,
Graham, Hansen, and Anderson,
in its motion to disqualify presented before the LCB.
The record
does
not indicate any allegations of bias and prejudice as
to
other
than these
four
prior to WMII’s raising
the issue before
this Board.
Upon examination of the record and case precedent,
the Board
finds
that WMII has waived any claim of bias
or
prejudice
against
LCI3
members
Calabresa,
Reindi,
Dolan
and
Axelrod.
(see, Waste Management
of Illinois,
Inc.,
v.
PCB,
175
Ill.
App.
3d 1023,
530 N.E.2d 682
(2nd Dist.
1988);
and E
&
E
Hauling,
481 N.E.
2d
at
666).
Even
if the Board were
to consider
98—47
—6—
the allegations regarding these
four,
the statements
alleged
to
indicate bias,
if made, were either stated outside
the timefrarne
of
the instant proposal, were vague as
to timefranie,
or were
indicative of strong views held by the speaker but insufficient
to establish that the speaker had prejudged
the facts
and
law.
Therefore,
the statements would either have no bearing on this
proceeding
or
are not relevant to
a determination of
bias.
The
Board will proceed
to address
the fundamental fairness issues
relating
to those
four LCB members which were not waived,
i.e.,
those pertaining
to members Geary, Graham, Hansen,
and Anderson.
WMII argues that LCB members Geary,
Graham,
Hansen, and
Anderson were biased and prejudged
its Application,
and presents
certain statements allegedly made by these members
in support of
its contentions.
The Board
finds
that of
these alleged
statements,
most have
no bearing
on the this proceeding because
they were stated outside the timeframe
of the instant proposal,
during
the LCB’s consideration of other
landfill applications.
Moreover,
these statements were
reviewed by this Board and
subsequently
by the appellate court
in the siting appeal
proceedings
of these earlier landfill applications.
Of the other
alleged statements relied upon by WMII, some are vague
regarding
content
or
timeframe,
and some are indicative
of strong views
held by
the speaker, but are not sufficient
to establish that
the
speaker had prejudged
the facts and
law.
(See, WMII
v.
PCB,
PCB
87—75, Slip Op. December
17,
1987,
and Ash
v.
Iroquois County
Board, PCB 87—29, Slip 0p. June
16,
1987).
The Board
finds, however, that the statements which are
attributed
to LCB member Geaty involving an alleged conversation
between Geary and Richard Whittington are particularly
troublesome.
The testimony regarding
the conversation
is
conflicting.
Whittington claims that the conversation
took place
subsequent
to
the filing
of
the Application,
but prior
to the
commencement
of
the hearings on
the Application.
Geary denies
that
the conversation
t9ok place.
(Pet.
Exh.
10 of PCB Hearing
at 27—31,
and Tr.
at
58
).
However,
it
is apparent that
if
the
2Transctipts
of the Hearing before this Board
are cited as
“Tr.”.
Transcripts of
the heating held before the LCB are
referenced herein by the designation “R.”.
Numbering
of pages
in
the transcripts of the LCB hearings was
restarted with each day
of hearing.
Additionally, on some occasions renumbering was
started
after
recesses within
a single day of hearing.
To
accommodate this situ~tion, transcripts
of
the hearing before the
LCB are referred
to herein by date
as well
as page number,
and
include
reference
to
the
session
in
quesLion
where
there
is
more
than one numbered transcript per day.
Thus,
for example,
“R.
8/22 P.M.
at
25” cites
to page 25 of
the August
22, 1988
afternoon heating.
9.3—4 8
—7—
conversation took place,
no other LCB members were present,
and
there
is
no evidence that information regarding
this conversation
was ever conveyed
to other LCB members prior
to their
vote.
Notwithstanding
any bias which may or may not be attributable to
Geary,
the Board finds that the record does not show that the
actions
or statements
of LCB member Geary,
or of any other of the
challenged LCB members, were sufficient to taint
the decision
making process
so as
to prejudice other members’ votes and thus
affect the final action
of the LCB.
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
WMII claims that
the LCB’s conclusions as
to criteria
#1,
#2,
#3,
#5,
and
#6 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 #1
Section 39.2(a)(1)
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”.
Relevant case
law from the Second District 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 capabilities.
Waste Management
of Illinois,
Inc.
v.
PCB,
175
Ill.
App.
3d
1023,
530 N.E.
2d 682
(2nd
Dist.
1988);
citing Waste Management
off
Illinois,
Inc.
v.
Pollution Control Board,
123
Ill.
App.
3d
1075,
463 N.E.
2d
969
(1984).
In support of
its Application,
WMII
presented
testimony
at
the
LC~ hearing
of
Mr.
Richard
W.
Eldredcje,
a
reqistered
professional
engineer.
Mr. Elduedge testified that he prepared
a
written report contained
in the Application which summarizes his
analysis and conclusions on the issue of need.
This
report,
98—49
—8--
which
is contained on pages
1—1 to
1—78
of the Application,
consists
of text,
graphs,
tables and maps which identify current
waste disposal facilities
and projections
of future disposal
capacities.
In his report,
Mr. Eldredge examined six landfills within
Lake County
(BFI,
ARF,
Lake County Grading,
Land and Lakes, Zion
Municipal,
and Lake Bluff),
and five landfills outside Lake
County which are closest
to
the County
(Pheasant Run, Veugeler,
Woodland,
Mallard Lake, and Lake).
Mr Eldredge testified that that Lake County generates waste
totalling approximately 1,586,163 yd3/yr,
that 3,524,381 yd~/yr
is disposed
of
in Lake County,
and that the remaining disposal
capacity
in Lake County
is 9,809,670 cubic yards; he
further
stated that these figures are included
in the Illinois
Environmental Protection Agency’s
(“Agency”) document entitled
“The Available Capacity for
Solid Waste
in Illinois”,
prepared
in
l987~ (R.
8/18
A.M.
at 66—68).
He stated that he also conducted
an independent determination of the data provided
in
the Agency
report by calling
the operators
of the sites
(Id.
at
75).
Mr.
Eldiedge stated
that
he further
examined
a report prepared by
H.D.R.,
an engineering firm retained by
the Lake County Joint
Action Solid Waste Planning Agency and
that the figures
contained
therein were
in close agreement with the Agency report
(Id.
at
69).
Mr. Eldredge concluded
that sometime between
1991
and 1993,
“probably closer
to
1991”,
Lake County will have an inadequate
capacity
for waste disposal
(Id.
at 70—71).
Mr. Eldredge’s
report specifically states
that
“Lake County’s waste generation
(at 5.5 ppd) will exceed Lake County’s disposal capacity by 22.4
in 1989 and Lake County ~y itself will exceed Lake County’s and5
closest landfills
sic
capacity
by 57.6
in 1991”
(Application
at 1—30;
emphasis
in original).
Based on examination
of the
remaining capacity
in Lake County and the rate
of
existing
disposal,
Mr. Eldredge opined that there
is
a need for
this
facility
in Lake County
(R.
8/18 A.M.
at
71).
On cross examination,
Mr. Eldredge stated that information
on landfill capacity for those facilities
outside Illinois was
obtained
from communications with the operators.
Of these, he
noted
that the Pheasant Run Landfill
located
in Bristol,
Wisconsin,
is
included
in Figure 1—22 of his report;
Mr. Eldredge
concluded
that this facility disposes of
1,300,000 gate
3This Agency
report was amended
in October
1988.
The amended
report was not available
at
the time
of
the LCB’s consideration
of the Application and hence
is not a proper factor
in this
review of the LCB’s decision.
98—50
—9—
yards/year
and will be available until approximately the year
2001 at this
rate
(Id.
at 78).
He did not draw any further
conclusions regarding the impact of the existence and
availability
of this facility to Lake County.
Mr. Eldredge also stated that his study examined only those
sites which were already permitted
to receive waste and those
sites which had already been granted approval for expansion
(Id.
at 95).
He agreed that subsequent
to the preparation
of his
report,
the Woodland facility in Kane County was granted
expansion which extended
its longevity for approximately six
years,
and that the Techny or Lake Landfill has received an
expansion approval which
increases the life of that landfill for
about
3 years
(Id.
at 95—7).
He also agreed that the landfill at
East Troy, Wisconsin has opened,
but stated that he contacted
its
operators who told him that they have not been taking Lake County
Waste,
and “didn’t see that
they would.”
(Id.
at
99).
Mr.
Eldredge stated that when estimating remaining
life,
he
chose
the most conservative numbers which were those contained
in
the Agency report
(Id.
at
125).
He said that the years remaining
at the BFI facility were calculated
by the Agency as
3 years,
and
the operator reported
6 years remaining
(Id.
at 124—5).
There were
no other witnesses presented
to testify on the
issue of
need.
The LCB found that WMII
failed to establish that the
facility
is necessary
to accommodate
the waste of the area
it
is
intended to serve with any credible evidence,
stating
that Mr.
Eldredge’s analysis 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.
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 included
in his analysis
for
need,
garbage
being
taken
in from other
than Lake County,
but
excluded areas outside of Lake County that accept
Lake County garbage.
Mr. Eldredge admitted that there remains over
six
(6)
years
capacity
in
existing
Lake
County
landfills.
Resolution
at.
3
98—5 1
—10—
The Board
finds
that its evaluation of the LCB’s decision on
Criterion
#1
is
a difficult call,
especially in light
of the fact
that there were no witnesses presented
to rebut the testimony
offered by WMII.
However,
the Board also believes that
it is
necessary for
its analysis
in this instance to place
the decision
of the LCB in the context
in which
it was made.
As
this Board
observes
from its examination of the record in this proceeding
and as the LCB points out (LCB Brief at 51—53),
the issue
of
waste disposal programs and capacities
in Lake County
is hardly
a
matter of first
impression for the LCB.
The LCB has reviewed
several applications
for landfill siting within recent years,
including
a 1987 decision on an application by WMII
for the
identical site herein at issue.
(The prior WMII application is
partially distinguishable
from the instant application
in that
the former
included an incineration facility along with
the
proposed landfill facility.)
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 LOB has handled these reviews
there
has been minimal
change
in the composition of the siting
committees and board
itself.
Additionally, Lake County has
itself been actively engaged
in waste disposal planning through
its agency,
the Lake County
Joint Action Solid Waste Planning Agency
(“SWAP”).
Although SWAP
did not testify before the LCB in the instant record
(as
it had
in prior LCB siting proceedings),
it did submit
a public comment
fully reiterating
its position, and concluding
that the WMII
proposed landfill
is not
a necessary facility.
Taken together,
these observations demonstrate that the LOB
is
a body well—versed
on
the issue of need
for waste disposal
capacity
in Lake County.
The LOB asked pointed questions,
which
indicated that the witness
failed
to consider matters
among those
noted
in the LOB’s conclusions.
The LOB demonstrated acute
knowledge of criterion
#1 issues,
and was clearly not satisfied
with the answers received,
specifically
regarding the
availability of disposal options
at other facilities,
and the
extent
to which
the Pheasant Run facility actually impacts upon
Lake County’s
future waste disposal situation.
As noted above,
the LCB
found
that WMIt failed
to establish
that the proposed facility
is
necessary
to accommodate
the waste
needs of
the area
it
is intended
to serve, finding
WMII’s
witness’
testimony inqredible.
At first
blush,
the
deficiencies
noted
by the LCB may seem less weighty
than the evidence
presented.
It
may
even
he
said
thaL
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
#1
issues
98—52
—11—
exhibited by the LOB 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 #1 are not contrary to the manifest weight
of the
evidence.
Criterion
#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 #2 encompass more than half
of
the Application and the majority of the Appendices
to the
Application.
They also elicited the largest amount
of testimony
among
the criteria
at hearing,
including being addressed during
eight
of the Committee’s evidentary sessions by at least one
or
more witnesses.
Among
the principal WMII witnesses addressing
criterion
#2 were
J.
Christopher Lannert
(P.
8/17
at
45 et seq.)
Robert
B.
Kewer
(R.
8/18 P.M.
at
4 et seq.), William
R.
Schubert
(R.
8/19 at 45 et seq.),
and Dale
R.
Hoekstra
(P.
8/22 at
4 et
seq.).
Among principal County witnesses addressing criterion #2
were Dr. Nolan Aughenbach
(P.
8/24 at
4 et seq.), George Noble
(R.
8/29 at
37
et seq.), and Herbert
F. Harrison
(R.
8/30 at 31
et seq.).
Criterion #2 encompasses,
by
its nature,
a wide variety of
location,
design,
and operational issues,
of varying nontechnical
and technical nature.
Among
locational issues
is the matter
of
whether
the landfill
is proposed
to be located at
a physically
suitable site,
in consideration of
at least
local geology and
hydrogeology.
Design elements relate
to 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
#2 are a variety of proposed operational elements,
including type and 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
#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 WMII’s
failure to carry
its burden of
proof with
respect to.ctiterion #2.
It
is uncontested
that WMI1’s
soil borings showed that some
sands occur within the dominantly mixed sand—silt—clay (glacial
till) materials underlying
the proposed site.
It
is equally
uncontested that the nature of these sands,
as
for- example
their
geometry and number, whether
they are thick or
thin,
and whether
98—53
—12—
they are interconnected or isolated,
are integral to the issue of
whether
the site location poses
a potential
for groundwater
contamination.
Mr.
Kewer,
a hydrogeobogist testifying on behalf of WMII,
characterized the sands as occurring
in “seams” which are “very
sporadic” and discontinuous
(P. 8/18 P.M.
at
6).
Indeed,
the
soil boring data
(Application at 2B—l
to 2B—94)
and the
corresponding laboratory test data
(Application
at 20—1
to 2C—99)
reveal that the geologic materials underlying
the proposed site
are dominated
by fine—grained, predominantly silty—clay
materials.
All such observations are consistent with
the
conclusion that the dominant material into which
the landfill
is
proposed
to be developed
is glacial
till.
Glacial
till,
if
it
is sufficiently
thick and
stratigraphically homogeneous,
generally
for-ms
a suitable host
material
for
an otherwise properly designed landfill.
The
thickness of the glacial
till beneath the proposed site does not
appear
to have been an issue with the LOB.
However,
the
stratigraphic homogeneity
of the till
is
an
issue.
A principal feature of stratigraphically homogenous glacial
till
is
its typically
low hydraulic conductivity.
The
significance
of
this relationship
is that landfill leachate,
should
it escape the landfill
site, will migrate only very slowly
though the glacial till and thus reduce the possibility that the
leachate will contaminate
near-by aquifers.
However,
it
is common
that glacial
till
is
not stratigraphically homogeneous,
but
rather
is
interstratified with well—sorted materials
(sands and
gravels, collectively
termed outwash) which have high hydraulic
conductivities.
These interstratified, high—hydraulic
conductivity materials may act as conduits
by which escaped
leachate gains access
to groundwater supplies and contaminates
them.
The LCB argues that WMII was not able
to prove
that the
admittedly existing sands were of such nature as
to not
constitute potential pathways
for groundwater contamination.
In
support thereof,
the LOB notes
the testimony of Dr. Aughenbaugh,
a geotechnical engineer
and expert
in glacial depositional
processes
(R.
8/24 at
3—6).
Dr. Aughenbaugh questioned
the
assumption
of WMII
that
the sands beneath
the proposed site are
discontinuous.
He noted,
based on his studies of active glacial
deposition,
that “it’s more common and more probable that these
pockets
of sand
encountered
in glacial
till
are
not
discontinuous
or
isolated but
in fact continuous”
(Id.
at
18).
He further noted
that sand bodies encountered
in glacial till
often
have
a
sinuols
geometry.
and that therefore WMII
‘S
contention
that failure
to find individual
sands consistently
between bore holes
is not evidence of
lack
of continuity
of the
sand bodies
(Id.).
98—54
—13—
WMII contends that Dr. Aughenbaugh’s supposition of the
continuity of
the sand bodies
is inconsistent with both field
permeabilities
tests and piezometric data
(Reply Brief at
28,
citing Application at
2—50
to 2—55).
However,
this Board’s own
review
of the relevant portions of the record
fails to confirm
this inconsistency.
In fact,
there apppears
to be many
interpretations of the data which are reconcilable with Dr.
Aughenbaugh ‘s supposition.
Dr. Aughenbaugh further questioned whether WMII conducted
a
sufficient
number
of borings
to adequately characterize the
geology of
the site.
In particular, he concluded,
based upon
analysis
of WMII’s soil boring data,
that the nature
of the
geologic materials changes across the site,
with more sand and
silt occurring in the southeast of the site than elsewhere
(Id.
at 21).
From
this observation
the LOB argues
that the southeast
section
is potentially more susceptible
to contamination,
and
therefore requires special investigation which WMII did not
provide.
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 LCB 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.
Petta,
supra)
given the
nature of the testimony.
Despite attempts to call
into question the expertise of both
Mr.
Kewer
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 LOB found that WMII had not carried
its
burden of proof with respect
to geologic and hydrologic aspects
of criterion
#2.
Accordingly,
this Board must affirm the LCB’s
decision on criterion #2.
This analysis of the geologic and hydrogeobogic aspects
of
criterion
#2
is dispositive
of this matter.
However,
for
the
record,
this Board notes
that the LOB included additional factors
in
its decision on criterion
#2.
These include considerations
of
leachate management, post—closure
care,
litter control,
application of daily ,cover,
and proposed handling of special
wastes
(Resolution at
4—5).
This Board does not find
that the
LCB’s
decision
on
these
additional
factors,
in
their
aggregate,
is against
the manifest weight of
the evidence.
98—55
—14—
Criterion 13
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 the issues of minimization of
incompatibility with the
surrounding area and minimization
of the effect on the value
of
the surrounding property, WMII presented
J. Christopher Lannert
(P.
8/17 at 45 et seq.)
and William
A. McCann
(P.
8/17 at 160
et
seq.).
WMII also presented two witnesses,
Christopher Robertson
and Thomas Hinesly, who testified regarding the shade effects
of
proposed facility
(P 8/19 at
3 et seq.).
The County presented
Robert Mosteller
(B.
8/24 at 167 et
seq.
),
George Noble
(P.
8/29
at
37 et seq.),
and Herbert Harrison
(P.
8/30
at
4
et seq.).
William Alter,
one of the objectors, presented Neil King
(P.
8/29
at
3 et seq.).
The LOB found
that WMII failed
to satisfy this
criterion.
J. Christopher Lannert,
a landscape architect and urban
planner,
testified
that the facility
is so
located as
to minimize
incompatibility with
the character
of the surrounding area.
Lannert summarized his position, stating
that on the basis
of the
landform,
the setbacks,
the screening berms,
the limited number
of adjacent uses,
and
the landform’s location within
the horizon
(sic),
the landfill has been located so as
to minimize any
incompatibility with the surrounding area
(P.
8/17 at 53—4).
He
described how the facility
is proposed
to be designed,
and stated
that there would
be two landforms separated by the Commonwealth
Edison easement.
He described various setbacks from adjacent
roadways and a right—of—way which
range between 140
feet
to 470
feet.
He also described various high points ranging from 114
feet
to
131 feet
(Id.
at 51—4).
On cross examination,
Lannert described in further detail
the various proposed screening berms,
and well
as
intermediate
cover,
to be placed next to
the operational
face of
the
landfill.
He stated that the landform will
be visible, but the
actual operation of
the active face of the landfill will
be
hidden from view
(Id.
at 66).
He stated that the highest
elevation
of the proposed landfill would be
950 feet which
is
higher
than
the
current
ARF
landfill
and
slightly
higher
than
the
ABF proposed expansion
(Id.
at
69).
He said that
along Route
83,
the landform itself will be screened by the placement of
approximately 800 lineal feet of berms
and vegetation on the
perimeter
of the property.
He stated that the berms will average
between
6
to
8
feet
in
height
and
will
undulate
(Id.
at
131).
He
also
descr
ibed
additional
setbacks
ranging
between
470
and
600
feet,
with
a
minimum
setback
of
100
feet
from
the
property
line
(Id.
at 77—8).
98—56
—15—
WMII
also presented additional testimony
that the shade
effects
of the proposed facility would
be minimal.
(See
testimony of Mr. Christopher Robertson,
the Energy Services
Manager
for the Springfield municipal electrical utility,
(R.
8/19 at
1 et seq.) and Thomas Hinesly, professor
of agronomy at
the University
of Illinois,
(Id.
at
22 et seq.)).
This evidence
was not rebutted.
Robert Mosteller,
Deputy Director of
the Lake County
Department
of Planning,
Zoning and Environmental Quality,
testified that he reviewed the Application primarily for the
visual impact that the proposed landfill would have on the
area.
He stated that he reviewed the topography maps of County
Exh.
12, and viewed the area from differing locations.
He opined
that the proposed landfill would
have
a very substantial and
detrimental effect on the visual character
of the surrounding
property.
He based his opinion on the location of
the proposed
site,
the elevation and slopes
of the two landfills,
as well as
the bulk
of the landfills
(P.
8/24
at 167—9,
179).
He described
the location of the site
as comparatively higher above sea
level
than the vast majority of Lake County and stated that the maximum
height of the proposed
landfill between 948 and 950 feet is
slightly lower
than the present highest point
in Lake County,
which is Gander Mountain at 957 feet,
located
in the extreme
northwest corner of Lake County
(Id.
at 170—1).
On cross examination, Mosteller admitted that he was unaware
of the provisions
to maintain vegetative
cover
over the proposed
landfill that have been proposed as part
of the Application.
He
stated that from the north,
there are points where
the site would
be blocked from view by the ARF landfill,
and by trees
(Id.
at
187—8).
When asked what further steps could
be taken
in order
to
minimize visual impact, he answered
that
to reduce the size and
slopes
of
the landfill,
and perhaps
to increase the height of
the
berms
(Id.
at 192—3).
George Noble, environmental consultant,
testified on behalf
of the County.
He opined that the proposed facility does not
minimize the effect on the character
of the surrounding area
(P.
8/29 at 37).
He based his opinion on various matters
related
to
mitigation measures
(Id.
at 39—40).
He also stated
that the
proposed landfill,
at approximately 120 feet above
the existing
elevation,
would be much higher
than any other
landforms
in the
surrounding two—mile area
(Id.
at
48).
He did not appear
to take
into consideration the pre—existing ARF landfill at this point,
however, on cross examination,
he said that he did
(Id.
at
125).
William McCann,
a real estate appraiser
and licensed
real
estate
broker,
testified
for
WMII
that the proposed
facility
is
located
so as
to minimize any incompatibility with
the
surrounding area and
to minimize the effect on property values
(P.
8/17 at 160—3).
He based his opinion on the fact that the
98—57
—16--
location
is basically
rural,
is substantially influenced by
sparse developments and agricultural use,
and on the results
of
his studies
as noted below
(Id.
at
163).
Mr..
McCann stated that
the area contains a manmade buffer zone comprised of
a railroad
right—of—way, and
is largely influenced by the pie—existence
of
a
landfill in the area
(Id.
at
164).
The bulk
of McCann’s testimony was directed
to the issue
of
effect on property values.
Mr. McCann stated that he analysed
property transfers and trends within the most approximate
residential subdivisions, together with evidence on whether
the
existence of
a present
and historic landfill within the area has
had an adverse impact on the value, marketability or ordinary
rate of appreciation of any property values
in the area
(Id.
at
164—5).
On
cross
examination,
McCann stated that
the thrust of his
study
was
to
determine
whether
or not
an existing landfill within
this
vicinity
has
shown any evidence of
a deterrent
to the value
and marketability
of
other
residential property in
the
vicinity.
He said
that considering other studies he has made
in
similar situations, he found
that landfills generally do not
deter development,
right
up to their peripheries
(Id.
at
190).
He stated that various factors impact upon marketability,
including
the condition of
the property,
its location,
the price,
the availability
of financing,
the motivation
of the seller,
the
motivation
of the buyer,
among others
(Id.
at
202—3).
He said
that he did not find
a large dissimilarity between subdivisions
further
removed from
a landfill and those closer
in proximity
(L~•
at
207).
He stated that he believes that there has been little
significant impact on the real estate values
in the area due
to
the ARF landfill,
although he did not study impact prior
to the
start
of operations of the ARF facility.
He explained, however,
that
the
APF facility began operations about
30 years
ago,
and
that
in
his
opinion,
going
back
that
far
in
time
would
not
be
germane
to
the
issue.
He
said
this
is
so
because
there
have
been
many
other
occurrences within the area such as growth,
rezoning,
sewer
installations,
development
of
schools
and
roads,
among
other factors
that would
be too difficult
to isolate
from the
influence
of
a landfill,
if any.
He believes that his studies
have
indicated that
there
is
no discernible information that
shows property values have stagnated,
declined or experienced any
substantially different
rate of appreciation than they would
under
situation where
there was no
landfill
(Id.
at 210—2).
McCann admitted that although he sees nothing wrong with the
height
of the facility as proposed,
he thinks there
would
be some
additional minimization
of impact on the surrounding property
values
from a landfill which
is lower
in height
(Id.
at 246).
93—58
—17—
Herbert Harrison, M.A.I.,
a
real estate appraiser,
testified
that he was appointed by the County
to evaluate the material and
testimony presented by WMII
regarding Criterion #3,
to determine
if the material and testimony supported the opinions and results
reported
(R.
8/30 at
5—7).
Mi. Harrison stated that
in his
opinion, Mr. McCann’s conclusions were not warranted because
there
is insufficient data
to support his opinions
(Id.
at
8).
He then pointed
to various
areas where he
found deficiencies
in
McCann’s
report,
including the methodology of the statistical
study,
lack of adjustment
for factors such as the changing value
of
the dollar
for different time frames used,
lack of distinction
between types of sales,
and incomplete
comparison information
from other
sites
(Id.
at 12—14).
Harrison testified that in order
to have
a calculation of
appreciation which
is
reflective
of
impact,
one must have
the
information prior
to the introduction of
the element
in question,
as well
as
information after
its introduction.
From this he
stated that once
the impact has been
introduced on
a given
property,
price will move from that point,
up
or
down,
according
to the economy
(Id.
at 10).
Harrison stated that
it
is an appraiser’s job to study
the
total market of the subject property and reflect that market from
an unbiased perspective and from the position of an informed
purchaser.
He opined that McCann did not do this based on what
he viewed as
a faulty statistical study
and the fact that McCann
rendered opinions on need
(Id. at
20).
On cross examination,
Harrison stated that
in order
to
determine whether
this
facility
is so located
to minimize the
effect on the value of the surrounding properties,
he would have
taken two locations where multiple
landfills are located and
perform assessments before and
after- the introduction of each
landfill
(Id.
at
42—44).
Neil King,
a
real estate broker and appraiser,
testified on
behalf of William Alter.
Most of Mr. King’s testimony echoed the
concerns
which
Herbert
Harrison
had
with
the
McCann
study.
The
LOB
found
that
WMII
failed
to show that the facility
is
located
so
as
to
minimize
the
incompatibility with the
surrounding
area
and
to
minimize the effect on the value
of the
surrounding pr-operty.
The LOB based
its findings upon
its review
of the McCann study contained in the application and the
testimony of McCann and Harrison,
finding that Harrison proposed
“a better test”
for
the determination of effect of
a landfill on
surrounding values,
by considering values both before and after
the
introduction of
a landfill.
The LOB further
found, according
to the testimony
of George Noble and Robert Mosteller,
and
evidence regarding
the height of the proposed landfill,
that
height of the landfill would adversely impact the visual
character
of
the surrounding area.
98—59
—18—
Criterion
#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.
ARF
Lanfill,
Inc.
v.
Lake Cou!~y,PCB 87—51, Slip Op.
10/1/87 at 24;
citing Watts Trucking Service,
Inc.,
v. City of Pock Island
(citation
to
be added).
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.
IPOB,
123
Ill.
App.
3d
1075,
1090
(2nd Dist.
l9~4).
The Board finds
that the LOB’s findings on criterion
#3 are
not against
the manifest weight of the evidence.
Regarding
the
examination of the valuation of the surrounding property,
the
Board again cannot find fundamental fault with the conclusions
drawn
by the witnesses who testified on behalf of WMII
and the
County.
In the briefs, both the LOB and WMII 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
well
as
other
aspects
of evaluation of impact on property.
There
is
also
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 #3 issue,
the
Board finds that determination of the LOB
on criterion
#3
is is
not against
the manifest weight
of the evidence.
Criterion
#5
For criterion
#5,
the LOB determined whether-
the WMII had
proposed
a plan of operation which
is “designed
to minimize
the
danger
to the surrounding area from fire,
spills
or other
operational accidents.”
The only witness presented
to testify to this criterion was
Mr. Dale Hoekstra,
who testified on behalf of WMII.
He stated
that he
is general manager
of the Settler’s
Hill Landfill.
He
testified
that based upon his experience and his review
of the
Application,
he believes that the plan of operations has been
designed
to minimize any potential danger
to the surrounding
area
from fire,
spills,
or other operational accidents
(B.
8/22
A.M.
at
9).
He stated that he bases his belief upon that fact that
employees have been trained
in landfill fire procedures and the
use of equipment,
there
is annual fire extinguisher training for
employees,
a water
truck with hose will be
kept on
site,
soil
stockpiles
viii
be
easily
accessible,
and
buildings
will
be
inspected annually
for compliance
with
the fire code.
In
addition,
he stated that the Grayslake Fire Department would be
called
if needed
(Id.
at 10).
98—60
—19—
He stated that spills are highly unlikely because
the site
will not accept liquid waste.
He stated that employees are
trained in the identification of waste,
and that
a safety program
will
be
in effect at all times
to update employees on safety
practices
(Id.
at 10—11).
On cross examination, when asked
if there are any provisions
for what would happen should leachate spill on the property,
Hoekstra answered
that
a spill protection plan will be written
prior
to the beginning of operations.
He admitted that there was
no such plan at present
(Id.
at 14).
The LOB found that WMII did not present
a plan of operation
for the facility which
is designed
to minimize the danger
to the
surrounding
area from fire, spills or other
operational
accidents.
The LOB stated that WMII presented
no clear plan
for
dealing with spills of any hazardous materials which may occur,
and presented no contingency plan
to deal with leachate which
tests hazardous,
or for hazardous gas condensate.
In its brief, WMII argues that the LOB’s decision
is against
the manifest weight of the evidence and quotes portions of
the
Application regarding a protocol
for accidental
spills:
Spills will not present any danger at this
site.
The
site will not receive liquid wastes.
Any waste
spilled will
be cleaned
up and disposed
of
in the
landfill.
Fueling
of vehicles will
be
limited
to an
area around the maintenance building and will not be
allowed
at the working
face
or near
any active part of
the landfill.
All site vehicles will
be equipped with
two—way radios for communications
in case of
an
emergency.
A protocol will
be setup
(sic)
for accidental spills
or fires.
This protocol will include
the contacts
to
be made with specific employees of
the County,
IEPA,
local
fire officials,
and firms which have the
necessary capability for emergency response.
This
protocol will
be posted
in the Administrative office
at the site,
and those
individuals and agencies which
would
be contacted will be made aware
of
its
existence.
(Application at 2—76).
The Board notes
that WMII proposes
to set up
a protocol
for
the hand?
ing
of
spills
or
fires
as
ouLlinecl
:in
the
Application,
including
a requirement
that only trained personnel will handle
leachate (Application at 2—80).
Although there
is some
conflicting testimony in
the record regarding
a lack
of
a plan
98—61
—20—
for handling leachate spills
at the site,
the Board believes that
WMII has submitted
a plan which addresses the concerns of
the LOB
as outlined
in its Resolution and as argued
in the briefs.
The
Board notes
that the Act only requires that the applicant propose
a plan which
is designed
to minimize the danger to the
surrounding
area from fire, spills or other operational
accidents.
The Board concludes from examination of the evidence,
even in the light most favorable to the LOB,
that WMII could have
done little more to minimize
the danger
to the surrounding area
than
what
it
has
proposed
here.
The
Board
therefore
finds
that
the decision of the LOB on criterion
#5 was against
the manifest
weight
of
the evidence.
Criterion
*6
For Criterion *6,
the LOB determined whether-
the applicant
proposed
a plan in which
“the traffic patterns
to or
from the
facility are so designed
as
to minimize the impact on existing
traffic flows.”
WMII
presented the testimony of Mr.
Robert Hamilton,
a
registered professional engineer practicing
in the area
of civil
and traffic engineering.
The traffic section of the Application
was prepared by Gewalt—Hamilton Associates,
of which Mt. Hamilton
is the president.
At hearing,
Mr. Hamilton explained
the
methodology
of the traffic engineering study his firm prepared,
and outlined his basic recommendations,
specifically recommending
the use of
a right turn deceleration lane,
a left turn lane and
rumble strips
for mud removal
(P.
8/22
P.M.
at
5—8).
When asked
whether
he had an opinion regarding whether
the traffic patterns
are designed
so as
to minimize any impact on existing traffic
loads, Mr. Hamilton testified
that
in his opinion,
there would be
minimal impact upon
the traffic at the site, particularly during
peak hours
(Id.
at
10—11).
He also stated that wheel washers will not be required by
the Illinois Department
of Transportation
(IDOT)
(Id.
at
11).
On
cross examination, he testified that although the Application
indicates
that wheel washers were initially recommended
by
IDOT,
their
recommendation changed subsequent
to submittal of
the
Application and prior
to hearing
(Id.
at 13).
He further stated
that
IDOT
reserves
the
right
to
require
the
installation
of
wheel
washers
if
at sometime
in the future
they deem them necessary
(Id.
at
82).
He stated that he did not recommend inclusion of
a
wheel washer because
of problems experienced with such devices
in
cold weather
(Id.
at
13).
Hamilton testified that
for- his study he assumed
the waste
would
come
to
th~
facility
from
Lhroughout Lake County
bised
upon
population projections.
He stated that he did not assume any
would come from Cook County.
He further stated,
however,
that
should
the directional distribution
of vehicles be skewed
98—62
—21—
tremendously
for some reason,
the impact would be negligible
because
the vehicles would not
be on the roadways during peak
hours
(Id.
at 31—32).
Hamilton testified that the recommendations he made were to
WMII.
When asked whether WMII had accepted his recommendations,
he stated that it
is
“pretty conclusive
that they have accepted
it”,
and that
as he understands
it,
all
of his recommendations
have been accepted
(Id. at 17,
25).
He
further stated,
however,
that he has not been authorized by WMII
to commit
to anything
(Id.
at
17).
He also stated that
if his recommendations were not
accepted, his opinion would change,
noting
that
if the
inprovements were not
installed, particularly the deceleration
lane and left turn bay, he would have serious safety concerns
(Id.
at
23).
In its brief, WMII points
to
a statement
in the
Application regarding these recommendations as evidence of its
commitment
to implementation of the recommendations.
The quoted
portion reads:
“several
recommendations as
to entrance design
and roadway
improvements were made and incorporated by the
Applicant
in
the
project
design”
(Application
at
6—i).
Hamilton further
testified on cross examination
that he also
estimated
the number
of vehicles making trips
to the site for
purposes other
than waste hauling.
He estimated
88 trips per day
for recycling
and
10 trips per day for employees, but did not
estimate
the
number
of
tanker
trucks
for
leachate
removal
or
trucks for compost.
He said he did not estimate any maintenance
vehicles moving to and from the site because he anticipated that
most of that activity
is on—site already
(Id.
at 46—47).
The LOB determined
that WMII
failed
to sustain
its burden
regarding Criterion
#6.
The LOB specifically noted deficiencies
in the information presented by WMII, including
the fact that
it
is unclear
whether
the
recommendations
of Mr.
Hamilton would he
implemented
by WMII,
the fact that
a wheel washer device was not
included as recommended
by
IDOT,
the fact that the traffic report
does not include estimates on traffic coming from areas other
than Lake County,
and that the application does not consider the
number
of vehicles arriving
at the site
for recycling operations,
maintenance and leachate removal.
From examination of the record and arguments presented
in
the briefs,
the Board finds that WMII adequately addressed the
matters which were of concern
to the LOB,
namely the wheel washer
situation,
the directional
flow of
traffic, and the number
of
vehicles entering and exiting
the site.
Although there
is some
conflicting evidence ~n the record regarding whether WMII will
accept and implement the recommendations of Mr.
Hamilton,
the
Application
contains
lancjuag-s
that
the recommendations were
incorporated
by
the
applicant
into
the
project
design.
The
Board
notes
that
the
Act
only
requires
that
the
traffic
patterns to and
from
the
facility be
so designed
as
to minimize the impact
on
98—63
—22—
existing traffic flows.
The Board therefore finds that the
decision of the LOB on criterion #6 was against the manifest
weight of the evidence.
Having found
that the LOB’s decision on criteria numbers 1,
2 and
3 are not against the manifest weight of the evidence,
the
Board must
affirm the LOB’s decision
to deny WMII’s application.
This Opinion constitutes the Board’s
findings of fact and
conclusions
of law
in this matter.
ORDER
The November
1,
1988,
decision of the Lake County BoaLd
denying site—suitability approval
to Waste Management of
Illinois,
Inc.,
for Petitioner’s proposed landfill
is hereby
affi
r-med.
Section
41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1987
ch.
1l11/2 par.
1041, provides for appeal
of final
Orders of the Board within
35 days.
The Rules
of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
Board Members Joan Anderson, John Marlin and
J. Theodore
Meyer concurred.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
that the above Opini~onand Order
was
adopted on the
~
day of
pvt~L
,
1989,
by a
vote
of
‘/—~.
~
Dorothy M(~unn, Clerk
Illinois P’ollution Control Board
98—64
