ILLINOIS POLLUTION CONTROL BOARD

December

5,

1986

WASTE MANAGEMENT OF ILLINOIS,

INC.,

)

a Delaware Corporation

Petitioner,

v.

)

PCB 86—109

McHENRY COUNTY BOARD,

)

Respondent,

and

McHENRY COUNTY CONCERNED CITIZENS

)

AND

McHENRY COUNTY DEFENDERS,

Cross—Petitioners,

v.

MdHENRY COUNTY BOARD and WASTE

)

MANAGEMENT

OF

ILLINOIS,

INC.,

a

)

Delaware Corporation,

Cross—Respondents.

MESSRS.

DANIEL, F.

CURRAN, OF HOLMSTROM

& GREEN, AND DONALD MORAN,

OF PEDERSON

& HOUPT, APPEARED ON BEHALF OF THE PETITIONER.

MR. MICHAEL

F.

KUKLA

OF COWLIN,

UNGVARSEY, KUFLA

& CURPAN,

APPEARED ON BEHALF OF THE CROSS—PETITIONERS.

MESSRS.

PAUL

R.

RYSKE, DAVID

R. AKEMANN,

AND WILLIAM

F.

BARRETT

APPEARED ON BEHALF OF THE RESPONDENT.

OPINION OF THE BOARD

(by J.

Marlin):

This matter comes before the Board on

a July

25, 1986

Petition for Hearing

to Contest Decision of Mdllenry County Board

by Waste Management

of Illinois,

Inc.

(Waste Management)

and on

an August 11,

1986 Petition for Cross Appeal

of Issues Decided

by

the McHenry County Board by McHenry County Concerned Citizens and

the McHenry County Defenders

(Cross—Petitioners).

This appeal

and cross—appeal results

from the July

25, 1986 decision of the

McHenry County Board

(County Board)

pursuant

to Section 39.2(a)

of the Environmental Protection Act

(Act), denying approval

of

site

location suitability for

a sanitary landfill proposed

by

Waste Management.

The County Board reached

its decision after

20

days of hearings

on

the matter.

At

the hearings,

Waste

Management,

McHenry County Concerned Citizens,

and the McHenry

County Defenders each presented witnesses.

In addition,

an

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2

Assistant State’s Attorney for McHenry County presented witnesses

on behalf of the County

of McHenry.

One hearing was conducted to

allow 65 members of the general public

to address the McHenry

County Pollution Control Siting Committee regarding the proposed

landfill.

The hearings generated

a 3,990 page transcript,

131

exhibits,

and a great number

of written comments from the public.

On August 15, 1986, Waste Management filed

a Motion to

Dismiss Petition for Cross Appeal.

This matter was denied by

Order of the Board on September 11, 1986.

A Board hearing was

conducted on October

2,

1986.

About 30 members

of the public

attended this hearing.

Motion

to Strike Portions

of Petitioner’s Brief

On October

17, 1986,

the Cross—Petitioners filed

a Motion to

Strike Portions of Petitioner’s Brief.

On October 24,

1986,

the

Petitioner filed

a Response to the Motion

to Strike.

Reply to

the Response was filed by the Cross—Petitioners on October

31,

1986.

Specifically,

the Cross—Petitioners have objected

to

a

newspaper article, marked as Supplemental Exhibit No.

1,

that was

attached

to the Petitioner’s Brief.

The article

is from the

October

7, 1986 edition of the Northwest Herald.

As pointed out

by the Cross—Petitioners,

this article was not admitted at the

Board hearing held on October

2, 1986.

In support of

its position requesting that the Board

consider the article,

the Petitioner cites a case

in which an

Illinois Appellate Court held that an affidavit could

be

considered after an entry

of summary judgment.

However,

the

Board notes that with regard

to veracity,

a newspaper article

cannot be considered equivalent to an affidavit.

The Board finds

that this newspaper article

is not

a part of the record here on

appeal.

The Board hereby grants the Cross—Petitioner’s Motion to

Strike Certain Portions

of the Petitioner’s Brief.

The Board

would also ~he ?e

clarify for the record that it did not

consider the Petitioner’s Supplemental Exhibit No.

1 or any

references

to

it when deciding this case today.

Motion to Strike Portions of Petitioner’s Reply Brief

The Cross—Petitioners filed on November 13,

1986,

a Motion

to Strike Portions of Petitioner’s Reply Brief.

A Response to

this

motion

was

filed

by

Waste

Management

on

November

19,

1986.

The

Board

is

cautious

in

addressing

any

motion

which

is

seeking

to strike aspects of

a brief.

Specifically, the Board is

concerned that such motions may be improperly used

as

an indirect

way of presenting a surreply brief.

Briefs contain arguments

built upon evidence from the record, but the briefs themselves

are not considered evidence.

Normally,

the Board merely reviews

the briefs

in light of

the record and gives weight to the various

arguments accordingly.

However,

in this instance,

the core of

the Cross—Petitioners’ motion

involves allegations that

information discussed

in Waste Management’s Reply Brief was not

74-166

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3

in the record before the County Board.

For that reason, the

Board has addressed this motion.

The Cross—Petitioners’ motion

is hereby granted

in part and denied in part.

In their motion, the Cross—Petitioners first request that

portions

of the Petitioner’s Reply Brief,

which reference certain

publications be stricken.

Specifically, the Cross—Petitioners

cite four sections in the Petitioner’s Reply Brief which give

explanations or definitions from various published materials.

The Cross—Petitioners contend that these articles and books were

not a part of

the record before the County Board and therefore,

should not be considered by the Board.

(Cross—Petitioners’ Motion

to Strike,

pp.

1—2).

Waste Management argues that the referenced

publications are

in fact part

of the record, because they are

contained in a list of “References” found on page IX—l of Waste

Management’s Application.

(Petitioner’s Response Motion,

p.

2).

However, Waste Management has not shown the Board when and where

these specific passages, now used

in the Petitioner’s Reply

Brief, were presented before the County Board.

Waste Management

merely states that the listed “References” are part of the

Application and should be considered as part of the record.

Consequently, Waste Management is asking

the Board

to rule that

the entire contents of any publication merely listed in the

Application

is considered part

of the record.

If this position

is accepted, hundreds of publications could be incorporated into

an application by reference without actual

copies being

provided.

It would be unreasonable to assume that such

publications were readily available for review by the County

Board.

The Board also notes that when large reports and

documents containing extraneous material are placed

in the

application or record,

the relevant portions should be noted.

Failure

to do so would leave vast quantities

of material open

to

examination and discussion.

Therefore, the Board rejects Waste Management’s position.

If the applicant wishes

to use specific passages or conclusions

from specific publications,

then the applicant should present the

specific information to the County Board via its application or

during the hearings.

This would allow the County Board and any

opponents to adequately address the information.

Merely

presenting a list of publications with the application

is not

sufficient for the contents of these publications to be

considered part of the record.

The referenced information

presented by the Petitioner’s Reply Brief and complained of by

the Cross—Petitioner’s Motion was not part of the record before

the County Board and should not be considered by this Board.

Therefore, with respect to the

issue,

the Cross—Petitioner’s

Motion

to

Strike

is

granted.

Secondly,

the Cross—Petitioners object

to Waste Management’s

characterization that one of Waste Management’s witnesses had

written “authoritative works

on the prevention of leachate

collection system failure.”

Specifically,

the Cross—Petitioners

complain that there

is no “evidence acknowledging the

74-167

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4

authoritative nature of his work.”

(Cross—Petitioner’s Motion

to

Strike,

p.

2).

Waste Management correctly points out that

hearing transcript indicates that the witness has presented

papers before professional conferences and has had papers

published.

(R.

219—20, 3790—96).

Waste Management’s use of

the

term “authoritative” merely seems to argue the credentials of its

witness.

Given the fact that the papers were addressed at the

hearing,

such argument is certainly allowable in post—hearing

briefs.

On this point,

the Cross—Petitioner’s motion

is denied.

The Cross—Petitioners also object to the various theories

presented

by Waste Management to explain the geologic areas of

low or no recovery from the boring sampler.

On pages 40—42 of

its Reply Brief, Waste Management stated that “breaking rods”

during the drilling process as well as the mechanisms of wet

rotary drilling caused areas of poor recovery by the boring

sampler.

The Cross—Petitioner’s claim that such portions of the

Reply Brief should be stricken because the explanations were not

adequately presented before the County Board.

(Cross—Petitioner’s

Motion

to Strike,

pp.

2—3).

Waste Management counters that such

explanations were presented at the hearing.

It specifically

refers

the Board

to R.

3808—17, 3867—69,

3921—24, 3931—37.

(Petitioner’s Response Motion,

p.

3).

After reviewing the

record,

it

is apparent that the explanation regarding “breaking

rods” was addressed at the hearing.

It even was stated that the

recovery of samples taken below

a depth of 35 feet would be

influenced by

“breaking rods”.

(R.

3933).

However,

there appears

to be nothing

in the record stating that the wet rotary drilling

process could cause diminished recovery in the samples.

Consequently, t~ieexplanation regarding wet rotary drilling was

never presented before the County Board.

As a result,

to the

extent the wet rotary drilling explanation is used by Waste

Management in its Reply Brief, the Cross—Petitioner’s motion is

granted.

Finally,

the Cross—Petitioner’s

request that Petitioner’s

Supplemental Exhibit No.

2 be stricken.

They allege that it is

not part

of the record and mischaracterizes testimony concerning

the “phantom stratum”.

(Cross—Petitioner’s Motion to Strike,

p.

3).

Supplemental Exhibit No.

2 reproduces,

in

a mural fashion,

various boring log data sheets and superimposes elevation lines

across

them.

In addition, areas on the data sheets indicating

zero recovery are highlighted with pink coloring.

The Cross—

Petitioners wish to strike the exhibit because areas of low

recovery were not colored pink.

However,

the Board notes that no

information was deleted from the log sheets.

One can still

read

where there are areas of low recovery as defined by the log

sheets.

The log sheets are

a part of the record.

(Appendix G of

Applicant’s Exhibit

#

4(a)

and County

of McHenry Exhibit #18).

Since Petitioner’s Supplemental Exhibit No.

2 does not

substantively change

the data as presented by the log sheets,

it

can be

classified

as being

an allowed graphical argument of

facts

in the record.

The Board denies the Cross—Petitioner’s Motion to

Strike with respect

to Supplemental Exhibit No.

2.

74- 168

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5

General Information

The site of the proposed landfill

is a 118 acre tract

of

land located

on

the

southeast

corner

of

the

intersection

of

Route

176 and McCue Road,

in the Seneca Township of McHenry County.

The Kishwaukee River flows near the south and west ends of the

site.

Waste Management claims the actual surface area of the

proposed landfill will be about 65 acres.

According to the

proposal, the landfill will have a maximum excavation depth of

about 35 feet (Applicants Exhibit $3a, p. 1—2).

The Tiskilwa

Till formation, which Waste Management claims

is 30 feet thick,

will be utilized as a natural liner for the landfill.

(R. 288)

The proposed landfill is designed

to take

in 1,500 cubic gate

yards of refuse per day.

It would operate

5 ~/2days per week.

(Applicant’s Exhibit #3a,

p.

1—2).

The estimated life of the

landfill

is 27 years

(R. 113).

Waste Management claims that the

landfill’s final

form will have

a high point that

is 75 feet

higher than the site’s existing high point.

(R. 1074).

The

proposed landfill

is designed as an inward gradient,

“below the

zone of saturation” landfill.

This means that the excavated base

of

the landfill will actually be below the level of the ground

water.

An inward gradient

is maintained by keeping the level

of

the leachate inside the landfill at a lower

level than the level

of the ground water outside the landfill.

The resulting relative

hydraulic pressure will create the condition where water outside

the landfill will tend to migrate into the landfill.

As a

result, Waste Management contends that the leachate

inside the

landfill will not leak out.

(R. 285).

Under Section 39.2(a)

of

the Act1,

local

authorities are to

consider six criteria when reviewing an application for site

suitability approval for a new regional pollution control

facility which will not accept hazardous waste.

The six criteria

are:

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;

~ Section 39.2 was recently amended by P.A. 84—1320, Section 30

(1986).

These amendments, which became effective after

the

County Board’s decision,

do not alter the six criteria as stated

above.

74-169

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6

4.

the

facility is located outside the boundary of

the 100

year flood plain as determined by the Illinois

Department of Transportation,

or the site is flood—

proofed

to meet the standards and requirements

of the

Illinois Department of Transportation and

is approved by

that Department;

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 the Board with reviewing the

decision of

the County Board, specifically whether the County

Board findings as

to the six criteria are against the manifest

weight

of the evidence.

In addition, the Board must evaluate

whether the County Board’s procedures used

in reaching its

decision were fundamentally fair.

E

&

E Hauling, Inc.

v.

Pollution Control Board,

116 Ill.

App.

3d

586,

71

Ill.

Dec.

587,

451 N.E.2d 555, 572

(2d Dist.

1983).

WASTE MANAGEMENT APPEAL

Technical Issues

Waste Management argues that

the

McHenry

County

Board

lacked

statutory authority to review highly technical details

of the

proposed landfill’s design and construction.

They claim that

a

contrary position would be inconsistent with the Act’s purpose

of

a “unified state—wide program for environmental protection.”

(Petitioner’s Reply Brief,

p.

7) Waste Management also cites the

legislative history

of Section 39.2(a)

in support of its

position.

(Petitioner’s Brief,

p.

8).

However, Waste Management concedes that the Third District

of the Illinois Appellate Court has held that

a county board

could consider the technical aspects when evaluating

a landfill

application

in terms of the statutory criteria.

City of East

Peoria v.

Illinois Pollution Control Board, 117 Ill.

App.

3d

673,

72 Ill. Dec. 682, 452 N.E.2d 1378,

1382 (3d Dist.

1983).

There,

the Third District stated

that the legislative history need not

be considered, because the statutory language was unambiguous in

requiring the county board

to evaluate, on its own, the public

health ramifications of the landfill’s design.

In County of Lake

v. Illinois Pollution Control

Board, 120 Ill. App.

3d

89,

75 Ill.

Dec.

750,

457 N.E.2d 1309, 1315 (2d Dist.

1983), the Second

District stated that

the statutory “language provides that local

governmental units can take into consideration the technical

details relating

to design and operation of the landfill.”

After

reviewing the reasoning

of City of East Peoria,

the Second

74-170

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7

District concluded saying,

“(w)e see no reason to depart from the

decision in the City of East Peoria case and will adhere to it.”

Id.

In its decision in Waste Management of Illinois,

Inc.

v.

Illinois Pollution Control Board,

122 Ill.

App.

3d

639, 77 Iii.

Dec. 919, 461 N.E.2d

542,

547

(3d Dist.

1984), the Third District

re—affirmed

the position it took in City of East Peoria by

holding that the county board did have jurisdiction to decide

issues of safety.

Also,

in Waste Management of

Illinois,

Inc.

v.

Illinois Pollution Control Board,

123 Ill. App.

3d

1075, 79 Ill.

Dec.

415, 463 N.E.2d 969,

981 (2d Dist.

1984), the Second

District,

in responding to the Pollution Control Board’s position

that

the

county

board

did

not

have

jurisdiction

to

consider

highly

technical

issues,

stated:

Several

recent

decisions

of

our

appellate

court,

however,

have

reached

the opposite

conclusion

and

have held

that the county

board

has

the authority

to

consider

such

matters.

County

of

Lake

v.

Pollution Control Board

(1983)

(citations omitted);

City

of

East

Peoria

v.

Pollution

Control

Board

(1983),

(citations

omitted);

see

also

Waste

Management

of Illinois,

Inc.

v.

Illinois Pollution

Control Board,

(1984),

(citations omitted).

Waste Management claims that all these

cases do not have any

precedential value

and that county boards do not have the

authority

to consider

technical issues when evaluating the six

criteria.

In support of its position, Waste Management relies

exclusively on the fact that the City of East Peoria has been

vacated by the Illinois Supreme Court.

City of East Peoria had

been appealed

to the Illinois Supreme Court.

While

the appeal

was pending,

a settlement between the parties was reached.

As a

result,

the Supreme Court issued an order stating,

“The motion by

appellant

to dismiss this appeal

as moot

is allowed.

On the

Court’s own motion,

the decision of the Appellate Court, Third

District,

in this cause

(117 Ill. App.

30673)

is vacated.”

(No.

59110, May Term 1984).

Waste Management states that since the

decision has been vacated it can not be relied upon.

Consequently, Waste Management concludes that the County

of Lake

and Waste Management of Illinois, Inc.,

123

Ill. App.

3d 1075,

which adopted

the reasoning of City of East Peoria,

also cannot

be relied upon.

(Petitioner’s Reply Brief,

p.

8).

The Board recognizes that although the decision of City of

East Peoria was vacated, the reasoning behind City of East Peoria

was not addressed.

The Board notes that the Second District of

the Illinois Appellate Court encompasses the County

of Mcflenry.

The court of

that district stated

in Waste Management of

Illinois, Inc.,

463 N.E.2d at 981,

that “several

recent

decisions

of our appellate court” have held that county boards

can consider technical details.

These other decisions do not

fall merely because they adopted the reasoning of City

of East

Peoria.

Consequently, decisions which have utilized City

of East

Peoria’s reasoning still have precedential value despite its

74-171

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8

vacation.

The Board further notes that in December of 1985, over

one year after City of East Peoria was vacated, the Second

District still cited City of East Peoria when concluding that

“(t)he legislature has charged the county board,

rather than the

PCB, with resolving the technical issues such as the public

health ramifications of

a landfill’s design.”

Kane County

Defenders

v. Pollution Control Board

139 Ill.

App.

3d 588, 93

Ill. Dec. 918, 487 N.E.2d 743, 746 (2d Dist.

1985).

The Board observes that a recent decision of

the Illinois

Appellate Court, Second District,

states,

“We can find neither

statutory language nor indication of relevant legislative intent

to pursuade us that local control should be extended beyond

matters concerning location.

Since we are convinced that

vertical expansion of a landfill does not raise questions

pertinent to location, proposals for such expansion do not

trigger the need for local review.”

M.I.G.

Investments,

Inc.

v.

Environmental Protection Agency, PCB No. 85—60, No. 2—85—734 slip

op. at

11

(Ill. App., Second District, October 15, 1986).

In

discussing

the term “location”, the court explained,

“Increasing

the vertical capacity of

a landfill does not involve use of any

new land and does not alter the geographical relationship of the

fill to its neighbors.

In summary, although the legislature

wanted

to provide for review before

a landfill was permitted in

a

local jurisdiction,

it intended

to limit that review primarily to

the property of

the location of the fill, not its capacity.”

Id.

at

9.

These statements are properly classified as dicta.

The

Board is bound by the Second District decisions which have held

that a county board may resolve technical issues.

In conclusion,

the Board

finds

that the County Board had the authority to

consider technical details when evaluating Waste Management’s

landfill proposal.

Fundamental Fairness

Waste Management also claims that the decision of the County

Board was fundamentally unfair, due to the alleged predisposition

of the County Board to decide against siting of the landfill.

Waste Management cites

three

instances which evidence this

predisposition.

First,

the County Board twice refused

to allow

Waste Management to amend

its application after the hearing was

underway.

Secondly,

the

McHenry

County

Board

has

rejected

two

other landfill proposals in the past year.

Finally, Waste

Management claims that statements

in a memo from McHenry County

Board Chairman Edward 3. Buss to other County Board members

indicate this predisposition.

At the hearing, after Waste Management,

the Cross—

Petitioners,

and

the

County

of

McHenry

had

each

presented

its

case—in—chief,

Waste

Management

inquired

as

to

the

procedure

for

amending

its

application.

Waste Management wanted to amend its

application

thereby

stipulating

to

certain

recommendations

of

two

County of McHenry witnesses.

The Regional Pollution Control

Facility Committee (Committee) decided that

it would amend

its

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9

rules

regarding

amendment

procedures on July 17, 1986 and then

address the motion by Waste Management to amend the landfill

application.

(R. 3769).

The Committee made amendments to

its

rules,

after which Waste Management formally filed its motion to

amend.

The Committee denied the motion.

At the close of

the

hearing, Waste Management again filed the same motion to amend

which had been denied earlier.

(R. 3977).

Once again, the motion

was denied by the Committee

CR.

3979).

In both instances the

Committee provided no reasons for the denials.

Waste Management

claims that these summary denials show

a predisposition by the

Committee against

the landfill, because Waste Management asserts

it had complied with the amendment procedures set forth in the

amended Committee rules.

(Petitioner’s Brief,

p.

33).

The Committee’s amended rules state that no amendments to

the application shall be made by the applicant during the

hearing.

If the applicant wants to amend the application, the

applicant must wait until the end of

the hearing and then request

another hearing on the proposed amendments.

The

rules then

detail the requirements of this request.

(Hearing Officer

Exhibit #6,

p.

10,

“Article of Rules and Procedures,” Article

IV,

Section 2(H)(1)).

However, even

if these requirements are met,

it does not appear that the Committee must grant the request as a

matter of right.

Section 2(H)(2)

of

the Committee’s

rules

states,

“If the Committee grants the applicant’s request...”

(Hearing

Officer

Exhibit

#6,

p.

12).

Such

a

statement

indicates

that

the

Committee’s

decision

in

this

matter

is

purely

discretionary.

Consequently, according

to the amended

rules of

the Committee, Waste Management’s first motion

to amend was

untimely, because it was offered prior

to the end of the

hearing.

Its second motion, although timely, was denied

as

a

matter within the discretion of the Committee.

In McHenry County Landfill, Inc.

v. County Board of McHenry

County, PCB 85—56,

(September 20,

1985,

p.

5),

the Board voiced

its

concerns

regarding

amendment

of

an

application:

If

such

an

amendment

were

allowed

during

the

course

of

the proceeding,

a

member

of

the public who may

have

decided

not

to

participate

because

the

application

seemed

acceptable

would

not

have

had

the

opportunity

to

review

the

amended

application.

Further, even

if he participated and

did

become

aware

of

the

amendment,

he

might

not

have

the

necessary time

to

adequately

respond

to

any changes.

The same may be true of the County or

any

other

participants.

This

could

be

cured,

however,

by

allowing such evidence

to

be presented

at

a

later

hearing

contingent upon

the

applicant

serving sufficient notice upon those required to be

notified

of

the

original

application

and

hearing

date

and executing

a waiver

for the period

of time

necessary

to

schedule

and

hold

the

additional

hearing.

74-173

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10

McHenry County procedures would have required an additional

hearing with notice if the Waste Management motion had been

granted.

The Board knows of no provision in the Act or any case

law which would mandate that an applicant be allowed to amend

their application as a matter

of right.

With regard to a county

board’s discretion, the Board also stated

in McHenry County

Landfill, Inc.,

p.

6,

“the County Board properly exercised its

discretion to keep the record closed and to make a

recommendation.

This decision did not constitute fundamental

unfairness....”

The McHenry County Board likewise merely

exercised its discretion in denying the amendment by Waste

Management,

thereby closing the county hearing record.

Waste Management also claims that the denial by the Mcflenry

County Board of other landfill siting applications indicates the

County Board’s predisposition against landfills.

Waste

Management points out that on October

15,

1985,

the County Board

denied local siting approval to the McHenry County Landfill, Inc.

proposal

for

a sanitary landfill.

Also, on September 16, 1986,

the County Board turned down the proposed landfill

of Laidlaw

Waste Systems, Inc.

(Petitioner’s Brief,

p.

34).

The Board finds it difficult to accept Waste Management’s

position that the County Board

is predisposed against landfills

merely because

it has denied siting approval to two other

landfill proposals

in the past year.

Without evidence to the

contrary, this Board can only assume that the County Board has

addressed each proposal on its individual merits and has not

prejudged the a~p1ications. Waste Management has not presented

anything which would warrant changing this assumption.

Finally, Waste Management offers the memo of County Board

Chairman Edward Buss (Petitioner’s Exhibit #1)

as further

evidence of predisposition.

In the memo,

directed to other

County Board members, Mr. Buss voices his concerns regarding the

County Board’s role in the landfill siting process as created by

Section 39.2 of the Act.

Mr. Buss goes on to suggest that

if

others agree with him, then they might wish to pursue a

legislative

remedy.

(Petitioner’s Exhibit 11,

p.

3).

It

is

clear from the memo that Mr. Buss is merely expressing his own

personal views regarding the County Board’s landfill siting

role.

He

is clearly not speaking for the County Board as a

whole.

Also,

it is important to note that Mr. Buss recused

himself from voting on the instant application due to a conflict

of

interest.

Consequently, the Board does not find that this

memo indicates a predisposition on the part of the County Board.

In summary, the denial of

the amendments,

the denial of

other landfill applications, and the Buss memo neither

individually nor taken together indicate any predisposition

against landfills on the part of the County Board.

Section 40.1

of the Act requires that the Board evaluate the County Board’s

proceedings with regards to “fundamental fairness.”

Fundamental

74174

---

11

fairness has been interpreted to mean adjudicative due process.

E

&

E Hauling, Inc.

v. Pollution Control Board,

116 Ill. App.

3d

586, 608,

71 Ill. Dec. 587,

451 N.E.2d

555,

aff’d,

107

Ill.

2d

33, 89 Ill. Dec.

84, 481 N.E.2d 664

(1985).

E

&

E Hauling, Inc.

set forth the standard which the Board must apply in evaluating

whether

the County Board’s hearing and decision should be

disqualified due to bias or prejudice.

Such disqualification

would only be necessary

if

a “disinterested observer might

conclude”

that the County Board had “in some measure adjudged the

facts as well as the law

of the case

in advance of hearing it.”

E

&

E Hauling,

Inc. 451 N.E.2d at 565—66.

Waste Management has

not presented any evidence which would indicate to the Board that

this standard was violated;

the County Board did comport with

adjudicative due process.

Therefore,

the Board finds

that the

County Board’s procedures were fundamentally fair.

Cross Appeal

On August 15, 1986, Waste Management moved

to dismiss the

cross—appeal of the Cross—Petitioners.

The Board denied this

motion with its Order

of September

11,

1986.

Now, Waste

Management is again requesting that the Board dismiss the cross—

appeal for the same reasons stated

in the motion of August

15th.

(Petitioner’s Brief,

p.

4)

The Board hereby re—affirms

its denial

of the motion

to dismiss the cross—appeal.

The Board

incorporates

by reference the Order

of September 11th as well as

the Order

of August 14,

1986, which initially granted the cross—

appeal.

These Orders set forth the Board’s position concerning

this issue.

Reasons for Decision

Waste Management claims that

the County Board did not give

sufficient reasons for its decision as required by Section

39.2(c)

of the Act.

(Petitioners Reply Brief,

p.

2).

The Second

District of the Illinois Appellate Court addressed this issue

in

E

&

E Hauling,

Inc.

v.

Pollution Control Board, 116 Ill.

App.

3d

586, 71

Ill. Dec.

587, 451 N.E.2d

555,

577 (2d Dist.

1983)

aff’d

107 Ill.

2d

33, 89 Ill. Dec. 821, 481 N.E.2d 664

(1985):

Although the statute does require the County Board

to make written decisions which specify the reasons

for

its

decisions,

“such

reasons

to

be

in

conformance with

subsection

(a)

of

this

Section”

(Ill.Rev.Stat.l98l,

ch.

111

1/2

,

par.

1039.1(e)),

nothing

in

the

statute

would

require

a

detailed

examination

of

each

bit

of evidence

or

a thorough

going

exposition

of

the

County

Board’s

mental

processes.

Rather,

the

County

Board

need

only

indicate

which

of

the

criteria,

in

its view,

have

or

have

not

been met,

and

this will be sufficient

if the record supports these conclusions

so that an

adequate

review

of

the County Board’s decision may

be made.

74-175

---

12

In its Findings and Order, the County Board stated that Waste

Management

had

met

its

burden

of

proof

as

to

criteria

1,

4,

5

and

6,

and had not met its burden of proof as to criteria

2 and

3.

The Board finds

these reasons to be sufficient according to

E

& E Hauling, Inc.

Manifest Weight Standard

The Board may reverse

a County Board decision,

if after

applying the manifest weight standard the Board finds that the

County Board decision was

in error.

E

& E Hauling, Inc.

v.

Pollution Control Board, 116 Ill. App.

3d 586, 608 71 Ill. Dec.

587,

451 N.E.2d 555

(2d Dist.

1983).

The Illinois Appellate

Court has recently stated:

“A

verdict

is

said

to

be

against

the

manifest

weight

of

the

evidence

where

it

is

palpably

erroneous,

wholly unwarranted

(citations

omitted),

is

clearly

the

result

of

passion

or

prejudice

(citations

omitted),

or

appears

to

be

arbitrary,

unreasonable,

and

not

based

upon

the

evidence

(citations

omitted).

A verdict cannot be set aside

merely because

the

jury

in

this

case,

the County

Board

could

have

drawn

different

inferences

and

conclusions

from

conflicting

testimony

or

because

reviewing

court

in

this

case,

the

Board

would

have reached

a different conclusion

if

it had been

the

trier

of

fact.

(citations

omitted).

When

considering

whether

a

verdict was contrary

to

the

manifest weight of the evidences,

a reviewing court

must view

the evidence

in the light most favorable

to

the appellee

(citations

omitted).

Steinberg

v.

Petra,

139 Ill. App.

3d

503,

508

(1986).

Consequently,

if,

after reviewing the record,

the Board finds

that the County Board could have reasonably arrived at its

conclusions,

then the County Board’s findings must be affirmed.

Waste Management contends that the County Board’s decisions

regarding Criteria

2

and

3 are against the manifest weight of the

evidence and,

therefore,

should be reversed.

Criterion

2

Waste Management’s first witness was Daniel P. Dietzler.

Dietzler

is

a professional engineer registered in Illinois.

He

is also the President of Patrick Engineering,

which designed

Waste Management’s proposed landfill (Petitioner’s Brief,

p.

13,

14).

At the hearing, Dietzler testified that he believed the

proposed landfill satisfied criterion 2.

He specifically cited

the Tiskilwa Till layer, which would

be used as a natural

liner

for the landfill,

as an important factor

for

this conclusion.

(R.

354)

Dietzler stated that he believed that the Tiskilwa Till was

well suited as

a liner for

a landfill

(R. 271, 279—80).

74-176

---

13

Laboratory permeability tests showed that the ~ill had

a

hydraulic conductivity on the order

of

2 x 10

cm/sec.

(R.

273).

Also,

four test pits,

excavated

in the Tiskilwa Till by

Patrick Engineering did not show any secondary features, such as

cracks,

that would

increase the Till’s permeability.

(R. 655).

Dietzler testified that the Tiskilwa Till was composed

predominately of silts and clay particles,

although it also

contained sand and some gravel.

(R. 270).

He claimed that the

Till layer would be at least 30 feet thick below the lowest point

of the excavated landfill.

(R. 288).

Secondly, Dietzler stated that the presence of a basal sand

layer aquifer, which

lies just below the Tiskilwa Till, was

another asset of the proposed site.

Dietzler

reasoned that the

basal sand layer could be monitored to check the integrity of the

Tiskilwa Till.

That

is,

to determine whether the Till was

allowing leachate to leak into the layers below.

(R. 355).

Next,

Dietzler credited

the inward gradient design as an

important aspect leading to his conclusion that the proposed

landfill satisfied criterion 2.

(R. 355).

Because the

inward

gradient design would cause water to migrate into the site,

leachate would be prevented from migrating out of

the site.

(R.

285).

Dietzler claims that the leachate collection system is

another positive aspect of the proposal.

The system consists

of

perforated plastic pipes laid in a 12 inch gravel bed at the base

of the landfill.

Dietzler stated that such a system has not been

used in any other

Illinois landfill.

(R. 356).

He also testified

that approximately 7,800 gallons of leachate would be removed

from the site each day.

(R.

622).

Finally, Dietzler cited the four foot thick

final cover as

an important aspect of the design.

He noted that the Illinois

Environmental Protection Agency only requires

a two foot thick

final cover.

(R.

356).

Waste Management’s second witness, Dan L. Nelson also stated

that he believed the proposed landfill fulfilled Criterion 2.

Nelson works for Waste Management as

the

district

engineer

who

would be responsible for the landfill’s construction, compliance

with state laws and regulations,

and the monitoring of the site

(Petitioner’s Brief,

p.

18).

Nelson stated that Waste Management

would do routine methane gas monitoring using probes.

(R. 766).

Also,

he believed that the proposed ground water monitoring was

adequate to meet Criterion 2.

(R.

765).

This proposed

monitoring program would include quarterly sampling of water from

surficial

soils,

basal

sand layer, and the bedrock.

These

samples would be tested

for various contaminants.

(R. 822,

823).

Nelson also stated that there would be 800 feet between

each

of the three ground water monitoring wells.

(R. 990).

74-177

---

14

Nelson stated that Waste Management would attempt

to

maintain the leachate level at least two feet below the ground

water level

(R. 1009).

He also testified that during the

operation of the landfill, the leachate level would be monitored

on a weekly basis

CR. 833).

However,

during the post closure

period, the leachate level would be only monitored on a quarterly

basis.

(R. 834).

Nelson also said that

in order

to maintain the

inward gradient, leachate removal would be needed

“on a

continuous basis” after

the closure of the landfill.

(R. 850).

Waste Mangement’s last witness to testify regarding

Criterion

2 was J. Christopher Lannert.

Lannert

is

a landscape

architect.

In summary, he stated that Criterion 2 was met for

four reasons.

First,

the site does not have any limiting

characteristics which would prevent a landfill from operating

there.

Secondly, the parcel

is large enough

to operate as a

landfill.

It’s also situated well in terms

of roadway access.

Finally, Lannert stated that the proposed landfill was compatible

with the surrounding area (R. 1054—55).

The Cross—Petitioners as well

as the County of McHenry put

on witnesses during the hearing who stated that the proposed

landfill did not satisfy Criterion 2.

David Anderson, who has a

Master’s Degree in soil physics and soil science, testified on

behalf

of the McHenry County Defenders.

(Cross—Petitioner’s Reply

Brief,

p.

29).

Anderson, who works for a firm specializing in

hazardous waste disposal, stated that Criterion

2 was not met

because the landfill was designed

as a “below the zone

of

saturation” landfill.

CR. 1552).

He

claimed that the rate of

leachate generation,

estimated by Waste Management, was

unrealistically

low.

He stated that the landfill could generate

78,000 gallons

of leachate a day.

(R.

1536).

Anderson was

troubled by the situation of “perpetual generation of leachate

and

a dependency

in

order

to maintain an inward gradient

on

a

system leachate

collection

that definitely is not going

to last

forever.”

(R.

1540).

Anderson recommended that the landfill be

moved out of the ground water zone and that synthetic liners be

utilized.

(R.

1556,

1554).

The

second

witness

for

the

McHenry

County

Defenders

was

Greg

Lindsey.

Lindsey is an environmental planner specializing

in

solid waste management and recycling.

He is also a member of the

Northeastern Illinois Planning Commission Solid Waste Technical

Advisory Committee.

(Cross—Petitioner’s Brief,

p.

30).

Lindsey

testified that the proposed landfill does not meet Criterion 2,

because

it

is inconsistent with McHenry County policies and its

proposed post—closure plan is insufficient.

Lindsey said that

McHenry County Board has adopted

10 policies concerning Basic

Operating Standards regarding landfills.

(R. 2512).

According to

Lindsey, Waste Management’s plan doesn’t adequately address all

of the Operating Standards.

(R.

2521).

The Board notes

that

Section 39.2

in its totality controls the County Board’s

decision.

In addition, Lindsey testified that even

a ten year

post—closure care period, would be insufficient.

Also, he was

74-178

---

15

concerned that the post closure fund,

as proposed

by Waste

Management, would be inadequate to provide sufficient post—

closure

care.

(R.

2526).

McHenry County Concerned Citizens called George Noble as

their first witness.

Noble

is

a registered professional

engineer.

He works as an environmental consultant.

For the last

20 years, he has worked in the area of solid waste management and

disposal, which included the designing of

landfills.

(Cross—

Petitioner’s Reply Brief,

p.

21).

Noble testified that the

landfill did not meet Criterion 2.

(R. 1869).

Noble stated that

“an inward gradient landfill presupposes that there will always

be leachate,”

(R. 1848).

He was concerned that inaccurate

leachate level readings may result from the combination of three

conditions of

the proposed

landfill.

Due to biochemical

reactions

of the leachate, Noble believed that the leachate pipes

might clog and that the gravel,

in the gravel bed containing the

pipes, might cement together.

Also,

he felt that locating all

of

the leachate monitoring wells

on one side of the landfill,

created the potential for inaccurate readings.

(R.

1894,

1852).

Under

such circumstances,

an outward gradient condition could

exist without ever being detected.

Noble also believed that

Waste Management never

fully addressed whether the surrounding

ground water level would be continually monitored.

(R.

1860).

Noble

testified that the Tiskilwa Till should have been

checked for secondary features via a “test cell” procedure.

(R.

1874).

He also stated that if he had designed an inward gradient

landfill,

he would have wanted a 10 foot layer

of recompacted

clay not just

a natural,

in situ,

clay liner.

He believed that a

recompacted layer would give the engineer more control over the

liner’s permeability.

(R. 1956, 1898).

Noble was also troubled

by the fact that Waste Management never conducted any field

permeability tests on the Tiskilwa Till,

which he believed to be

a routine procedure.

He stated that the permeability results

from field tests are sometimes two to three orders

of magnitude

greater than the permeability results from lab tests.

(R.

1840).

Field permeability tests allow the testing of the

material in an undisturbed condition.

(R.

1885).

If sand and

gravel

is present,

a field permeability test may show this by a

higher permeability value than with

a lab test result.

(R.

1981).

Noble

felt that there was an insufficient amount of data

regarding permeability

of the Till (R.

1939).

Specifically, he

concluded that no lab permeability tests were even performed on

any sample taken from the part of the Tiskilwa Till that would be

located directly below the proposed excavated bottom of

the

landfill.

(R.

1844).

Noble also stated that he was concerned

over the lack of

a complete methane gas collection system.

(R.

1870).

Dr. Musa Qutub was the second witness who testified for

McHenry County Concerned Citizens that Criterion 2 was not met.

Dr.

Qutub has

a Ph.D

in geology,

specializing

in water

resources.

He

is

a hydrologist and professor at Northeastern

74-179

---

16

Illinois University.

(Cross—Petitioner’s Reply Brief,

p.

22).

Qutub testified that the proposed site failed the criterion

because the Tiskilwa Till is not homogeneous.

Also, Qutub

contended that the actual flow of the ground water

is not

in the

direction that Waste Management claimed

it

to be.

He criticized

Waste Management’s assumption that the static ground water level

could

be

controlled.

In

addition,

he

believed that the proposed

leachate collection system is inadequate.

(R. 2144).

Qutub

stated that Waste Management’s portrayal

of the geology under

the

site

in Applicant’s Exhibit

#

16

is inaccurate.

(R. 2118).

He

claims

that the Tiskilwa Till

is not a homogeneous layer of clay,

but,

it is rather a mixture of clay, sand, gravel and cobbles.

These constituents other than clay give

it a higher porosity and

permeability.

(R;

2111,

2374).

He also believes field

permeability tests should have been taken.

(R.

2126).

Qutub

also

questioned

the

methods

of

Waste

Management

in

determining

the

direction

of

ground water flow.

(R.

2102).

Qutub

stated that the results

of his study showed that the ground water

flowed from west to east.

CR. 2100).

He claims this

is

consistent with

a U.S. Geological Survey finding that the flow in

the area

is from northwest to southeast.

He pointed out that

Waste Management claimed the ground water flows from east

to

west.

(R. 2372).

Qutub testified that an inward gradient would

not be attained because the static water level could not be

maintained

in the landfill since

the surrounding area is made

up

of sand and gravel.

Also,

he stated that natural phenomenon

(such

as earthquakes), rainfall, and pumpage will change

the

static levels.

He concluded that he has never seen a sanitary

landfill where the static water

level was maintained

(R. 2224—

2225).

Mcflenry

County

Concerned

Citizens

last

witness

was

Michael

Robinson.

Robinson

is

a

licensed

geotechnical

engineer.

CR.

2376).

Robinson

studied Waste Management’s boring data and

determined that there was a correlation between areas

of the

geologic strata which produced low or no recovery

in the boring

sampler.

These correlated areas

of unknown composition were

labeled as “phantom strata”. They are located within the

boundaries,

as defined by Waste Management,

of the Tiskilwa

Till.

According to Robinson, one such phantom stratum ranges

from 21/2 feet to

41/2 feet thick between elevation 830 and 820.

He claims that another

lies just below elevation 820.

(R.

2391).

The County of McHenry put on Robert Layer as

a witness.

He

is a staff engineer for the county.

(R.

2707).

He found that

with regard to storm—water management, the proposed landfill does

not meet Criterion 2.

(R. 2740).

Layer claimed that water runoff

from the final land form would be 2.3 times greater than it

is

now

(R.

2718).

He concludes that such

a runoff would be highly

erosive.

CR.

2721).

Jerome Chudzik was another witness

for the County of McHenry

who testified regarding Criterion 2.

Chudzik

is

a registered

74-180

---

17

professional engineer.

(R.

3025).

He suggested that the proposed

landfills would meet Criterion 2.

CR. 3080).

However, he

believed that his particular recommendations were important and

should be adopted.

(R.

3092).

He recommended items such as

surface water monitoring

(P.

3049),

additional ground water

monitoring wells

to decrease the gap between wells

(R.,

p.

3051),

and

a methane detection system

CR. 3046).

Another County

of McHenry witness, Gerald DeMers, also

testified that the proposed

landfill would meet Criterion 2.

However,

like Chudzik, DeMers stated that Waste Management should

adopt his recommendations.

CR.

3276).

DeMers,

a registered

professional engineer, recommended that the leachate should not

be allowed

to accumulate.

Waste Management’s plan allows it to

accumulate

to a depth of 12 feet inside the landfill.

He claims

that the removal

of leachate as

it is generated reduces the

chance

of not maintaining an inward gradient.

CR. 3181).

Also,

to avoid excess leachate while

the landfill

is operating,

he

recommended that the landfill should be excavated and filled from

the higher elevations first while working downward.

This is the

opposite of the way Waste Management has proposed filling the

landfill.

CR.

3185).

The last County of McHenry witness was Dr. Pratap Singh.

Dr. Singh has

a Ph.D.

in soil and water engineering

(Cross—

Petitioner’s Reply Brief,

p.

24).

He testified that the proposed

landfill would not meet Criterion 2.

CR. 3483).

His firm

conducted additional borings on the sites which seemed

to confirm

the phantom stratum theory.

CR.

3524).

After reviewing this data

and Waste Management’s boring

data, Singh stated that

“4

to

5

feet below the invert

of the landfill there

is

a possibility that

cobbles and boulders,

plus sand seams,

are there throughout...the

entire base of the landfill.”

CR. 3407).

He stated field

permeability tests should have been conducted,

because they are

more representative of true permeability.

(R.

3410).

Singh also

recommended that Waste Management recompact the clay liner,

thereby removing the cobble layers.

(R. 3436).

He stated that

electrical resistivity or electromagnetic survey should be taken

of the site to better

investigate its geology.

CR. 3438).

Singh

stated that the present amount of data,

gathered by Waste

Management,

is insufficient with regard to understanding the

geology and hydrology of the site.

CR. 3416).

To better

facilitate leachate removal, he recommended that the spacing

between the leachate collection pipes be decreased

to 150

to 200

feet.

Waste Management’s plan calls for 600 feet between

pipes.

Also, he suggested that the slope of

the bottom of the

landfill be 2 percent rather than 1 percent.

(R. 3440).

Although the testimony concerning Criterion

2 addressed

a

wide variety of issues,

after reviewing the record,

it is

apparent that conflicting evidence was presented

to the County

Board on major aspects of the landfill proposal.

Waste

Management contends that the inward gradient design of the

landfill will prevent leachate from leaking out of the

74-181

---

18

landfill.

However, Waste Management’s own witnesses have

admitted that the landfill would require continual pumping of

leachate, after closure,

in order to maintain this inward

gradient.

According to witnesses for the Cross Petitioners,

this

constant need

to monitor and pump leachate

is a major detriment

to the landfill’s design.

Also,

a witness for the Cross—

Petitioners estimated that the landfill could generate 78,000

gallons

of leachate per day.

This is a great contrast to Waste

Management’s estimate of one—tenth that amount.

The amount of

leachate generated obviously has

a great impact upon the

maintenance of an inward gradient which

is dependent upon the

constant removal of leachate.

Witnesses for the Cross—

Petitioners and County of McHenry testified that the leachate

collection system was inadequate.

It was claimed that the

proposed placement of the monitoring wells and collection pipes

could lead to innaccurate leachate level readings.

Consequently,

an outward gradient could go undetected.

It was also suggested by Waste Management’s opponents that

the proposed distance between the leachate collection pipes

should be substantially reduced.

The proposed slope

of the

bottom of the landfill was also criticized by witnesses for the

Cross—Petitioners and County

of McHenry as

being only half

of

what

is needed

for efficient leachate collection.

Witnesses for

Waste Management stated that the leachate in the landfill would

be allowed

to accumulate

to a depth of about 12 feet.

However,

witnesses for the County

of McHenry and the Cross—Petitioners

agreed that the leachate should not be allowed to accumulate

in

order

to reduce the chances of accidently creating an outward

gradien t.

In addition, evidence was presented by the Cross—Petitioners

that the groundwater flow was in the direction opposite of what

Waste Management claimed

it to be.

The methodology of Waste

Management’s hydrologic study was severely criticized

by one

of

the Cross—Petitioner’s witnesses.

It was also stated by this

witness that an inward gradient design was unworkable because it

relied on the questionable assumption that static water levels

could be maintained.

In

its design, Waste Management utilizes 30 feet of Tiskilwa

Till as an in situ

liner.

Waste Management claims that lab tests

on the permeability of Tiskilwa Till indicate that

it has a

sufficiently low permeability.

Witnesses for the Cross—

Petitioners and County of McHenry stated that field permeability

tests should have been conducted.

Specifically, they claimed

that the permeability indicated from lab tests could be several

orders

of magnitude less than the level

of permeability that

actually exists on the site.

It was also pointed out that Waste

Management did not perform even lab permeability tests on samples

taken from the area of

the Till that would actually function as

the liner.

74-182

---

19

Waste Management’s witnesses also claimed that the Tiskilwa

Till

is a fairly homogeneous

formation that

is composed

predominately of silty clay.

However, other witnesses countered

that the Till

is not homogeneous, and

it likely contained layers

of sand,

gravel,

and cobbles.

The phantom strata interpretation

of boring logs presented by witnesses for the Cross—Petitioners

and the County of Mcflenry, conflicts directly with the geologic

interpretation of Waste Management.

These phantom layers are

claimed

to

be located just below the proposed excavated bottom of

the landfill.

It

is suggested that the “phantom strata”

are

composed of cobbles and boulders.

If layers of cobbles and

boulders are present in the Till,

as it was claimed,

then the

overall permeability of the Till would be much greater than what

Waste Management has concluded.

Witnesses for the Cross—

Petitioners and County of McHenry also criticized Waste

Management’s methodology in evaluating the geology

of the site.

Specifically, opposing witnesses contended that Waste Management

had not gathered enough boring data of the area within the

proposed

landfill footprint and the area surrounding the site.

The above summary

of the various positions of the witnesses

touches only upon certain issues regarding Criterion 2.

There

are literally thousands of pages of testimony addressing this

particular criterion.

Pursuant to the manifest weight standard,

the Board must consider the evidence in the light most favorable

to the County Board’s position that Waste Management’s proposal

did not meet this criterion.

Credible testimony was presented

which questioned

the wisdom of Waste Management’s application.

This is particularly true regarding ground water dynamics, sub-

surface geology and the ability of

the design

to function

properly over time.

After reviewing the massive record,

it becomes apparent that

the County Board could have reasonably concluded that Waste

Management’s proposal did not satisfy Criterion

2.

Therefore,

applying the manifest weight standard,

the Board affirms the

County Board’s finding regarding Criterion

2.

The Board notes

that it has

in no way made a determination as to the general

suitability of

inward gradient landfills.

Criterion

3

Waste Management’s first witness with regard

to this

criterion was J. Christopher Lannert.

Lannert has been a

landscape architect and urban planner for the past sixteen years.

(Petitioner’s Brief,

p.

19).

He testified that the landfill was

“designed

The

Board notes

that the statutory language

of this

Criterion is “located” not “designed”.)

to minimize

incompatibility with the surrounding area.”

He specifically

cited several factors for the basis of his opinion.

First, he

believed that the end use plan was compatible with the

surrounding

area.

CR.

1086).

However, he also acknowledged that

the surrounding area does not have

a sufficient population now,

or even in the year 2005,

to support the proposed recrational use

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20

after

the landfill closes.

(R. 1188).

Secondly, Lannert stated

that the screening berms, planting, and setbacks would “protect

our neighbors.”

He also felt that the landscaping around the

entrance to the proposed landfill was adequate to shield the

truck

traffic from view.

Next, he stated that the surrounding

topography and woodlands were consistent with the landfill and

helped to minimize its impact.

Finally, he stated that the

intermediate screening berms, which would be utilized during the

actual filling of the landfill, would serve to reduce the impact

of the landfill’s operations on the surrounding area.

CR. 1086,

1087).

Lannert testified that the landfill

in its final form

would end up being the highest point in the Township

(R. 1136).

He stated that the highest point of the final form would be

75

feet higher

than the existing high point on the site.

(R.

1074).

The permanent screening bern, which would be erected on

the eastern boundary of the site, would only be 25 feet high.

(P.

1144).

He stated that the residences east of the site would

screen the view of the landfill from each other.

CR. 1084).

According to Lannert,

the site

is bounded by open farmland

to the north and to the south.

West of the site

is

a large tree

nursery.

CR.

1068).

He stated that single lOt residences are

located in a wooded area east

of the site.

(R.

1070).

Lannert testified that the site is presently zoned A—i,

for

agriculture.

He noted that a landfill could be permitted as a

conditional use

in such

a zoning classification.

(P. 1218).

However, he also stated that McHenry County classifies this site

“as prime farmland” due

to its soil composition.

(P. 1048).

Lannert testified that the McHenry County Comprehensive Land

Use

Plan also shows the site

in an agricultural district.

In

the plan,

just east of the site

is an agricultural—rural

transitional zone.

(R.

1049).

Lannert stated that the site

contains 15 recorded lots.

He claimed that the existence of

these potential residences take the site out of

a “pure

agricultural classification.”

That is, he believed the site has

turned from an agricultural

to a more residential

type use.

CR.

1193).

He stated that

if residences were built on the site,

they

would be “an extension of this

east

of the site

residential

community.”

(R.

1192).

Lannert stated that the presence of these

recorded lots makes

the site inconsistent with the pure

agricultural classification of Comprehensive Land Use plan.

Therefore, Lannert concluded that the site is really located

in

a

“flexible area”

of classification.

(P. 1050).

However, Lannert

also asserted that

a landfill would be better classified as

an

agricultural rather than residential use.

CR.

1181).

Waste Management’s other witness concerning this Criterion

was Thomas Collins.

Collins has been

a real estate appraiser and

consultant for

32 years.

(Petitioner’s Brief,

p.

30).

He

testified that the landfill would not be incompatible to the

surrounding

area.

(P.

1263).

He also classified

a landfill

as

being an agricultural or residential type of use rather than an

industrial

or commercial use.

(P.

1338).

In his report on the

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184

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21

site, he had stated that the immediate area around the site had

no discernable trend.

However, Collins testified at the hearing

that the trend

in the area is toward

residential development.

(R.

1298,

1318).

However, he did state that the Emery Woods

subdivision, which

is located east of

the site,

is only 60

percent developed even though the development

is 15 to 20 years

old.

CR. 1255).

Collins also testified that the end use plan of

the landfill

would not cause any depreciation or change in the area’s

development trend.

CR. 1263).

He claimed that the landfill,

even

during its operation, would not deter the residential growth east

of the site

(R. 1271).

He testified that residential development

has continued near several Illinois landfills.

The Veugler

landfill near Crystal Lake

in McHenry County was used to

illustrate this point.

He stated that construction

of homes near

that landfill had continued and expanded

CR. 1267—1270).

He also

testified that the proposed screening and berming would have a

positive effect on the neighborhood and were significant when

considering the effect on property values

(R. 1262).

Collins

testified that only one piece of property in the area will lessen

in value due to the landfill.

According to Collins,

this

property, located just off the southwest corner

of the landfill’s

boundary, would lessen in value no matter what type of screening

is used.

CR. 1273).

However, he claimed

that other properties

in

the area would not diminish in value if the landfill was sited.

(R.

1269).

Collins never addressed farmland values because he

felt that farms were not the highest and best use

of the land.

(P.

1360).

Herbert Harrison was the first County of McHenry witness who

testified regarding Criterion 3.

He stated that the proposed

landfill did not minimize incompatibility and the impact on

property values.

CR.

2850).

He attacked Waste Management’s

report regarding this Criterion as having “no substance.”

That

is, he believed an insufficient amount of information had been

gathered

by Waste Management.

(R.

2845, 2846).

Harrison testified that there were 11 homes within

a quarter

of

a mile

of the landfill and 14 homes within

a half

a mile.

CR.

2880).

He also was concerned that

if odors were emitted from the

landfill, they would be blown by the wind

to the subdivisions

east of the site.

CR. 2812).

Harrison,

though, suggested that

if

the final form of the landfill was limited

to the existing

contours, instead of 80

to 90

feet above

them, the impact of the

landfill on the properties east of the site would be minimized.

CR.

2946).

Harrison stated that the obvious trend in the

building of single family residences was from Route 47 westward

toward the site.

CR. 2849).

He concluded that

if residences were

built

on the site, they would merely be “a continuation of the

slow but steady trend that has occurred there over the past 20

years.”

(P. 2845).

Harrison also acknowledged that the

population

of Seneca Township has been projected to grow by less

than 1,000 people from 1980

to the year 2005.

(R.

2899).

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22

Harrison pointed out that Waste Management’s report by

Collins did not appraise any values of property east of the

site.

Harrison claimed that this was not done,

because Collins

believed the technology of the landfill was such that it would

not adversely impact on those properties.

According to Harrison,

that was a wrong assumption.

CR. 2816).

Harrison also stated

that a multiple regression analysis of area property values

should have been run by Waste Management to accurately

investigate the landfill’s impact.

CR. 2826).

Harrison noted

that Waste Management also did not investigate the potential loss

of value to the properties east

of the site,

due to the fact that

the high final elevation of the landfill would block the late

evening sun.

CR.

2836).

The other County of McHenry witness who addressed Criterion

3 was Steve Aradas.

Aradas

is the Director

of the Mcuenry County

Department of Planning. (Cross—petitioner’s Reply Brief,

p.

32).

He testified that the site

is not located to minimize

incompatibility.

(R.

2971).

Aradas stated that the only way

to

minimize incompatibility was to locate the landfill in an

industrial

area.

He particularly emphasized incompatibility due

to the fact that the landfill

final form will extend 80

to 90

feet above the existing contours.

He discounted the use

of berms

as having minimizing effect.

(R.

2979).

Aradas also claimed the

proposed recreational end use would

be an anomaly in the

agricultural type of area surrounding the site.

CR.

2968).

He testified that within a

1 3/2mile radius of the site were

94

single lot residences and 24 farmsteads.

(R.

2961).

He stated

that the predominant land use east of

this site was residential.

(P.

2965).

He claimed that the trend along Route

176

is toward

residential

use.

Consequently, according

to Aradas, residential

development would be more compatible than a landfill.

(R.

2972).

However,

because the site

is considered “prime farmland,”

Aradas testified that the highest and best use for the site would

be farming.

(R.

2977, 2978).

He stated that the County’s zoning

and Comprehensive Land Use Plan objectives are

to protect

productive farmland from development.

(R. 2463,

2967).

In summary, Waste Management presented testimony which

stated that the landfill’s design would minimize incompatibility

with the surrounding area.

Waste Management contended that the

presence

of berms and landscapes would minimize the impact on the

landfill’s neighbors.

Also, witnesses for Waste Management

stated that a landfill site would not be inconsistent with the

County Plan or detrimental to the residential development of the

area.

In addition, Waste Management claims that only one piece

of property would suffer

a loss in value due to the landfill.

The County of Mcflenry presented witnesses who testified

in

opposition to Waste Management’s position.

One witness stated

that since the site

is considered

“prime farmland,”

it should be

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23

preserved

as

an agricultural use.

It was claimed that such

a use

would serve the objectives of the County Plan and the areas

zoning.

The development trend of the area was stated

to be

residential.

It was concluded by the County

of McHenry witnesses

that

a residential use of

the site would be more compatible with

the surrounding area than

a landfill use.

These witnesses also

claimed that the berms and landscaping would not minimize

incompatibility, especially since the final landfill form would

be

80 feet higher than the existing contours

of the site.

Waste

Management’s study concerning had values was also criticized as

being insufficient and inaccurate.

With regard to this Criterion “an applicant must demonstrate

more than minimal efforts to reduce the landfill’s

incompatibility.”

Waste Management of Illinois,

Inc.

v. Illinois

Pollution Control Board,

123 Ill. App.

3d 1075, 1090, 79

Ill.Dec.

415,

463 N.E.2d 969, 980

(2d Dist.

1984).

However,

the Second

District,

following E

&

E Hauling,

Inc.

v. Pollution Control

Board,

116 Ill. App.

3d

586, 71

Ill. Dec.

587, 451 N.E.2d 555

(2d

Dist.

1983)

also stated that “an applicant must demonstrate it

has done or will do what is reasonably feasible

to minimize

incompatibility.”

Waste Management of Illinois,

Inc., 123 Ill.

App.

3d at 1090,

463 N.E.2d at 980.

The Board assumes that the

same conditions apply to the requirement to “minimize the effect

on the value

of surrounding property.”

It

is apparent from the

record that the applicant has studied the surrounding area.

The

site is mostly bordered by agricultural land with scattered

residences, particularly to the east.

A landfill could

reasonably be located

in such

an area.

Waste Management’s

proposal reflects more than

a token effort to minimize

incompatibility.

Waste Management presented an extensive plan

for setbacks,

berms, and landscaping.

Their proposal seems to

include that which would be considered “reasonably feasible

to

minimizie incompatibility.”

Therefore,

viewing this record in

light of

the above case law, the Board finds that the County

Board’s decision with regards

to this criterion was against the

manifest weight of

the evidence.

The Board hereby reverses the

County Board’s finding

that Criterion 3 was not met.

CROSS APPEAL

Sufficiency of Application

The Cross—Petitioners contend that the County Board should

have dismissed Waste Management’s application, because it did not

contain all the information which is required by the Articles of

Rules and Procedures

of the Regional Pollution Control Facility

Committee

(Hearing Officer’s Exhibit #6).

Specifically, the

Cross—Petitioner’s claim that the application did not contain

“all

land uses within a one—mile radius of

the site”

(Article IV,

Section

Cl)(A)(8)(g)), “property values

of the surrounding

properties” (Article IV, Section l(D)(5)(b)(4)(c)(l)),

and the

“financial condition

of Waste Management of Illinois, Inc.”

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24

(Article

IV, Section l(A)(10)(c)).

(Cross—Petitioner’s Brief,

p.

10—11).

The Board finds that the County Board’s refusal

to dismiss

the petition was reasonable.

In so saying, the Board cautions

that

it is not implying that

a question of insufficiency of

information

(whether the informational requirements were framed

by this County, or any other county or municipality),

can,

in and

of itself,

be a reason for considering dismissal.

For example,

while an application “form” may be

a useful means of assuring

a

fair and orderly hearing process,

if the information required

goes beyond the scope of Section 39.2 of the Act,

it cannot be

given weight;

in the same manner,

if

a form is insufficient in

its scope,

it cannot serve as a constraint on the criteria that

must be considered in Section 39.2.

The Cross—Petitioner’s also contend that the County Board’s

findings with respect to Criteria 1,

4,

5 and

6 are against the

manifest weight of the evidence and therefore, should be

reversed.

Criterion 1

Richard W.

Eldridge testified for Waste Management with

regards to Criterion 1.

Eldridge

is a licensed professional

engineer and president of Eldridge Engineering Associates.

CR.

83).

He testified that there was a definite need for the

proposed landfill.

He based his conclusion on past “need”

studies, current available landfills,

and the expectant life of

these current landfills.

CR.

115).

Eldridge

testified that the

service area of the proposed landfill would be approximately

within

a 15 mile radius from the site plus the whole

of McHenry

County

CR. 101).

He also said that there was currently only one

operating landfill within this proposed service area.

That

landfill, which

is the Veugeler landfill,

is expected, according

to Eldridge,

to have

a remaining service life of only

3 years.

CR. 111—112).

Gerald DeMers testified for the County of McHenry that the

landfill was “necessary to meet the disposal needs

of the area

intended

to be served.

He also based his opinion on the fact

that the existing landfill capacity is limited to

1

to

3 years.

He stated that even

if the Waste Management landfill

is sited,

there may be

a period

of time, before the landfill begins

operation, during which the County would have zero landfill

capacity.

(P. 3171).

DeMers also cited

a Northern Illinois

Planning Commission Study which stated that Mcuenry County had

a

substantially lower locally available landfill capacity when

compared with the rest of

the region.

(P. 3164).

The Cross—Petitioners presented no witnesses who testified

to Criterion 1.

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25

Witnesses testified for Waste Management and the County of

McHenry that the only landfill operating in the proposed service

area has a short remaining operating life.

No opposing testimony

was presented.

In light

of the manifest weight standard, the

Board finds that the County Board could have reasonably concluded

that Criterion 1 has been met.

Therefore, the Board affirms the

County Board’s finding that Criterion 1 had been satisfied by

Waste Management.

Criterion

4

Waste Management submitted a letter, dated September 16,

1983, from the Illinois Department of Transportation (IDOT),

which

states

that

IDOT

“has

determined

that

the

proposed

sanitary

landfill...is located outside the boundary of the 100 year flood

plain.” (Applicant’s Exhibit #25).

The Cross—Petitioners presented

no witnesses testifying to

Criterion 4, nor did they address this issue

in any of their

briefs.

Applying the manifest weight standard,

the Board affirms the

County Board’s findings that Criterion

4 has been met.

Criterion

5

Dan Nelson also testified for Waste Management on this

Criterion.

He stated that Criterion

5 has been met.

(P.

759).

He claimed that the possibilities

of accidents on the site would

be minimal.

He specifically said that the site would be fenced

and no one under

the age of 16 would be allowed at the working

face of the landfill.

(R. 756).

According to Nelson,

fires are rare at modern sanitary

landfills.

He also asserted that no smoking would be allowed at

the working face.

(R. 1020).

Each piece of equipment at the

landfill will carry

a small fire extinguisher.

Also Nelson

claims

the equipment can be quickly used

to spread soil over any

fire.

A water

truck, normally used for dust control, could also

help put out a fire.

Nelson stated that Waste Management

employees will be trained

in how to put out fires.

He believed

that the application of daily cover would also minimize the

chance of fires.

Nelson concluded that there would not be a need

for off—site equipment used for the purpose of fighting fires.

(R. 753—55).

Nelson testified that no liquid wastes would be accepted at

the site, consequently,

the chance of spills would be non-

existent

(P.

757).

He also stated that Waste Management has

adopted

a Safety Manual

of Waste Management, Inc.

(See

Applicant’s Exhibit #29, P.,

p.

758).

Nelson stated that a

procedure regarding who to contact

in case

of fires or an

emergency is not addressed

in the Safety Manual,

but such

a

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26

procedure will be developed with respect to the site.

(P. 872—

73).

Jerome Chudzik testified for the County of Mcaenry on this

criterion.

He stated that Waste Management had met Criterion

5.

However, he suggested that Waste Management adopt his

recommendations.

CR.

3059).

Chudzik recommends that Waste

Management develop some protocol regarding who to contact in case

of an emergency.

This should include procedures for an agreement

in order

to call fire department equipment

to the site.

Also,

Chudzik recommended that records

of incoming waste as well as

water quality samples be regularly provided

to the County for

inspection.

In addition, he believed that all vehicles on the

site should be equipped with two—way radios.

He also suggested

that proper leachate removal and transport equipment be made

available

to the site.

Chudzik also recommended that the

refueling of vehicles be done away from the working face.

He

believed that provisions should be made in order

to detect any

methane migration off the site.

CR. 3040—47).

In addition, he

wanted samples

to be taken from existing neighboring

water

supplies

to establish existing quality.

CR.

3050).

Art

additional

ground water monitoring well was also recommended

to

reduce the

chance

of a plume of contaminants escaping detection.

CR.

3051).

The Cross—Petitioners did not present any witnesses to

testify with regards to this criterion.

Witnesses for Waste Management and the County of McHenry

testified that criterion

5 has been met.

Evidence was presented

to show that Waste Management has developed or will develop

various procedures which will reduce the danger due to fire,

accidents,

and spills.

No witnesses were presented

in opposition

to this evidence.

Consequently, there is evidence upon which the

County Board could have reasonably made its finding.

Applying

the manifest weight standard, the Board affirms the County

Board’s finding that Criterion

5 has been met.

Criterion

6

David Miller testified for Waste Management concerning

Criterion 6.

Miller

is a traffic engineer and president of Metro

Transportation Group.

CR.

1379).

He testified that Criterion

6

has been met.

He stated that Route 176,

a

two lane road, carries

about 4,300 vehicles per day.

According

to Miller, this current

traffic load only amounts to about 25 percent of the road’s

capacity.

He stated that during

the landfill’s operation, about

70 to

75 trucks would travel

in and out of the site each day.

He

claims that 65 percent of the trucks would

be 25—yard packers,

30

percent would be roll offs,

and

10 percent would be semi—

trailers,

2 axle stake beds and pickup trucks.

(R.

1384—86).

Miller concluded that the traffic added by the landfill’s

operation would increase Route 176 traffic flow by only two

percent.

(R.

1389).

He also noted that the peak times for the

74-190

---

27

landfill

are

from

10:30

am

to

11:30

am

and

from

2:00

pm

to

3:00

pm.

He pointed out that these peak times are different than the

existing peak times which are from 7:00 am to 8:00 am and from

4:00 pm to 5:00 pm.

CR. 1387).

Miller stated that

if the site

were

developed

into

15

single

family

residences,

these

residences

would generate 150 vehicular trips per day and that there would

be more roads entering Route 176.

On the other hand,

he claimed

that the landfill would generate 180 vehicular trips per day.

(R.

1400—01).

Miller claims that there is good sight distance along Route

176, and the access design is adequate to accommodate inbound and

outbound

trucks.

(P.

1409).

He

stated

the

Illinois

Department

of

Transportation

determined

that

acceleration

or

deceleration

lanes

would be unnecessary.

(See Applicant’s Exhibit #45,

R.

1410).

Miller concluded that the traffic caused by the landfill would

not adversely impact upon the operating efficiency

of Route

176.

CR. 1390).

The County of McHenry witness

addressing this criterion was

James Rosenmerkel.

Rosenmerkel

is a civil engineer in charge

of

the transportation division of

an engineering firm.

CR. 2660).

He testified that the landfill’s traffic system has been

“designed to minimize any negative

impact on existing traffic.”

CR. 2683).

He also stated that the sight distance along Route

176 was very good.

Furthermore,

he found that given the existing

amount of traffic, there would be no negative impact upon the

traffic due

to the landfill’s operation.

(R. 2671).

However, he

did suggest that a bypass lane for westbound traffic, to drive

around stationary trucks waiting

to turn left,

would be

a good

idea.

(R. 2677).

He also recommended an acceleration lane for

trucks heading east out of

the landfill.

CR.

2702).

The Cross—Petitioners did not present any witnesses to

testify concerning this Criterion.

With regard to this criterion, witnesses of Waste Management

and the County

of McHenry agreed that the proposal was

sufficient.

A Waste Management witness estimated that the

landfill’s operation would only increase the traffic on Route 176

by two percent.

Even with this increase,

it was testified that

Route 176 would still

carry less than one—third

its traffic

capacity.

The witness for Waste Management also stated that

additional turning lanes would not be needed.

Although the

County of McHenry witness recommended additional

turning and

acceleration lanes for the landfill, he still concluded that

Waste Management’s proposal was sufficient for this Criterion.

Consequently, evidence was presented at the hearing which would

support the County Board’s finding.

In light of

the manifest

weight standard,

the Board

finds that the County Board could have

reasonably concluded that Criterion

6 was met.

Therefore,

the

Board affirms

the County’s finding with regard to Criterion 6.

74-191

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28

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions

of

law

in

this

matter.

IT

IS

SO

ORDERED.

B.

Forcade,

R.

Flemal,

and

J.T.

Meyer concurred.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify ~at

the above Opinion was adopted on

the

~

day of

~

,

1986,

by a vote

of

__________________________

Dorothy M,/tunn, Clerk

Illinois Pollution Control Board

74-192