as appears from the Files and Records now in my custody.
EXHIBIT
Statutory Criteria
• Conclusion

CLERK’S OFFTCE

BEFORE

CONTROLB1~j74~RP

32003

MICHAEL WATSON,

Pollution

STATE OF

Control

IWNOIS

Board

No. PCB03-/Jy~

(Pollution Control Facility Siting

Application)

COUNTY BOARD OF KANKAKEE COUNTY,

ILLINOIS, and WASTE MANAGEMENT OF

ILLINOIS, INC.

Respondents.

PETITION FOR REVIEW OF DECISION CONCERNING SITING OF A

NEW

POLLUTION CONTROL FACILITY, PURSUANT TO SECTIONS 39.2

AND

40.1

THE

ILLINOIS ENVIRONMENTAL PROTECTION ACT

Petitioner Michael Watson, by and through his attorneys at Querrey & Harrow, Ltd.,

respectfully requests a review of the decision of the County Board of Kankakee County,

Illinois (Kankakee) approving the Site Location Application for the Kankakee County Landfill

Expansion (Application) filed by Waste Management of Illinois, Inc. (WMII). In further

support of this Petition, Petitioner states as follows:

1. This Petition is filed pursuant to Section 40.1(b) of the Illinois Environmental

Protection Act (Act) and Sections 107.200-107.208 of the applicable Illinois Pollution Control

Board Regulations. (415 ILCS

5/40.1(b)

(2003) and 35 IAC 107.200-208).

2. Pursuant to Section 107.208(a), a copy of Kankakee’s written decision is attached to

this Petition as Exhibit A. Although not required by Section 107.208(a), the attached copy is

certified by the Kankakee County Clerk as being true and correct.

3. The subject new pollution control facility is the expansion of the Kankakee County

Landfill which was proposed by WMII and approved, subject to conditions, by Kankakee.

Petitioner,

Printed on Recycled Paper

Pursuant to Section 107.208(b), the following Paragraphs,

5-7,

provide a statement

as to how Mr. Watson, the filing party, is a proper Petitioner under Section 107.200 of the

Pollution Control Board Regulations, because, among other things, he has an ownership

interest of land adjacent to and surrounding the landfill expansion, and due to his participation

and attendance at the local site location review public hearings.

Mr. Watson is a resident of Kankakee County and a beneficiary of trusts which own

property located adjacent to and surrounding the subject landfill expansion.

6. On October 28, 2002, Mr. Watson filed a notice with Kankakee (copies to the local

siting hearing officer and WMII, among others) to participate in the public hearing scheduled

to be held before Kankakee and its hearing committee. Additionally, Mr. Watson, personally

or through his attorneys, attended all of the public hearings in the subject local siting review.

7. Further, Mr. Watson, individually and through his attorneys, timely filed written

comments concerning or relating to subject landfill expansion.

8. Pursuant to Section 107.208(c), the following Paragraphs 9-11, set forth the

grounds for this appeal.

As an initial matter, Kankakee did not have proper jurisdiction to conduct the local

public hearings or make a decision on WMII’s siting request for the landfill expansion. Pre-

filing notice to Brenda and Robert Keller, owners of property within 250 feet of the proposed

facility, was insufficient under the requirements of Section 39.2(b) of the Act. (415 ILCS

5/39.2(b) (2003)). Illinois Courts have consistently held that Section 39.2(b) pre-filing notice

requirements are a jurisdictional prerequisite to the local new pollution control facility site

location process.

See,

Ogle County Bd. ex rel. County of Ogle v. Pollution Control Bd., 272

Printed

on Recycled Paper

Ill. App. 3d 184, 208 Ill. Dec. 489, 649 N.E.2d

545 (1995), appeal denied,

163 Iii. 2d 563,

212 Iii. Dec. 424,

657

N.E.2d 625

(1995);

Kane County Defenders, Inc. v. Pollution Control

139 Ill. App. 3d 588, 93 Ill. Dec. 918, 487 N.E.2d 743 (2nd Dist.

1985).

Although not a

prerequisite to raising a jurisdictional issue on appeal, Mr. Watson, through his attorneys, filed

a motion during the course of the local public hearings, to dismiss WMII‘s siting application as

WMII failed to properly and timely notify Brenda and Robert Keller of the siting application,

prior to its filing with the Kankakee County Clerk’s Office and Kankakee.

10.

Additionally, the local siting review procedures, hearings, decision, and process,

individually and collectively, were fundamentally unfair. The areas of fundamental fairness,

that are sought to be addressed in this appeal, include, but are not limited to, the following.

Mr. Watson specifically reserves his rights to add to the following list of fundamental fairness

subjects, during or following discovery and the public hearing in the appeal before this Board.

a. The Illinois Environmental Protection Agency Records or existing site recordes

allegedly filed by WMII with the Kankakee County Clerk were not available to

members of the public at the Kankakee County Clerk’s Office to review and, in

fact, members of the public were affirmatively told by the Clerk’s Office that no

such records were filed.

b. Exhibits Al and A2 to the to the Host Community Benefit Agreement were not

included in the “official copies” of WMII

‘

s siting application maintained at

Adcraft Printers by or on behalf of Kankakee or the Kankakee County Clerk’s

Office, and numerous participants, even the hearing officer for the local public

hearings, did not have those Exhibits. Numerous participants, including Mr.

Printed on Recycled Paper

Watson, were disadvantaged due to the missing Exhibits, and in particular, were

prejudiced in their ability to review these Exhibits, a purported property value

protection plan, and prepare for the public hearings in a manner so as to address

questions or issues concerning these Exhibits. Additionally, there is a question

concerning the availability of these Exhibits at the Kankakee County Clerk’s

Office.

c. On information and belief, improper

ex parte

communications during the

pendency of the WMII’ s siting application created unfair proceedings, inherently

prejudicial to other participants. ~

Southwest Energy Corporation v. IPCB,

et al.,

275 Ill. App. 3d 84,

355

N.E.2d 304 (4th Dist.

1995).

d. On information and belief, other fundamental fairness issues exist concerning

the communication, conduct and decision-making process of Kankakee, the

committee that made recommendations to and advised Kankakee, and WMII,

however, discovery is needed to review these issues on appeal.

e. The public hearings were not fair, due to unavailability of WMII witnesses who

had substantial input in the preparation of the siting application and its Criteria-

specific reports. For example, WMII refused to present Mr. Miller from Metro

for cross-examination even though Mr. Miller signed the Criterion 6 report in

WMII’s siting application, and WMII’s Criterion 6 witness, Mr. Corcoran,

testified that Mr. Miller had substantial input in the preparation of the report and

analysis of traffic impact.

Printed on Recycled Paper

f. The public hearings were not fair, due to WMII’s failure or refusal to present

documentation concerning the alleged qualifications of Ms. Patricia Beaver-

McGarr, WMII’s sole witness concerning that portion of Criterion 3 related to

property values, and WMII’s failure or refusal to present this witness for further

cross-examination. As a result, participants and Kankakee were denied access

to information needed to fully examine this witness and her alleged

qualifications.

g. The local siting review was fundamentally unfair due to WMII’s failure to

follow, and Kankakee’s failure to specifically waive in a properly noticed public

meeting, local requirements for substance and content of a siting application.

h. Finally, Mr. Watson reserves his right to add specific fundamental fairness

issues or delete from the above list, during discovery, hearing, and briefing

during the continued siting process before the Illinois Pollution Control Board.

11. Finally, Criteria

1, 2, 3,

6, 7, and 8 were not met by WMII, and Kankakee’s

approval of WMII‘5 siting application on those Criteria is not supported by the record and

against the manifest weight of the evidence.

WHEREFORE, Petitioner Michael Watson respectfully requests the Board enter an

order (a) finding that no jurisdiction existed on WMII’s siting application and, therefore, the

County Board of Kanakee County’s decision is not valid and void; (b) alternatively and

notwithstanding or waiving the jurisdictional issues, setting for hearing this contest of the

County Board siting approval decision, (c) alternatively and notwithstanding or waiving the

jurisdictional issues, reversing the County Board of Kankakee County’s approval and denying

Printed on Recycled Paper

WMII’s siting application; (d) alternatively and notwithstanding or waiving the jurisdictional

issues or item (c), above, remanding this matter for further local public hearings to address the

fundamentally unfair local proceeding; and (e) providing such other and further relief as the

Illinois Pollution Control Board deems appropriate.

Dated: March 2, 2003

Jennifer J. Sackett Pohlenz

Querrey & Harrow, LTD.

175 W. Jackson Blvd., Suite 1600

Chicago, Illinois 60604

Phone: (312) 540-7000

Fax: (312) 540-0578

Respectfully submitted,

MICHAEL WATSON

Printed on Recycled Paper

STATE OF ILLINOIS,

County of Kankakee,

SS•

I, Bruce Clark, County Clerk of said County, and custodian of the Records and Files

of said office do hereby certify that the annexed is a true and correct copy of

.. .DECESION..~EG.UIN

z~Wc~JPN

.Qk

~c...

~ •LOCAL

OF AN EXPANSION OF TUE EXISTING

KANKAKEE LANDFILL

as appears from the Files and Records now in my custody.

IN TESTIMONY WHEREOF, I have hereunto set my

offical

seal, at

Kankakee, in said County, this

.25TH.. day of.

.FESRLJAR~

A.D.

7003..

Clerk.

B3~-4~h

. .

Deputy.

EXHIBIT

KANKAKEE COUNTY BOARD

Decision Regarding the Application of Waste Management of Illinois, Inc.

For Local Siting Approval of an Expansion ofthe Existing Kankakee Landfill

Whereas, on August

16,

2002, Waste Management of Illinois, Inc. (WMII) filed an

application for local siting. approval for an expansion of its existing Kankakee Landfill;

and

Whereas public hearings have been held on the application, before Hearing

Officer John McCarthy, and public comments filed or postmarked by January 6, 2003

have been received; and

Whereas the Kankakee County Regional Planning Commission (KCRPC) has,

pursuant to the Kankakee County Siting Ordinance for Pollution Control Facilities (Siting

Ordinance), considered the application and the siting record, and has made findings

and recommendations to the Kankakee County Board (Board); and

Whereas the Board has considered the record of the siting proceeding, including,

but not limited to, the testimony, exhibits, and comment given at the public hearings, the

application, and the public comments; and

Whereas, the Board has also received and considered the recommendations of

the KCRPC; and

Whereas the Board has met, in a session open to the public, to discuss and

consider WMll’s application;

Whereas, pursuant to state statute (415 ILCS 5/39.2) and the Siting Ordinance,

the Board is to determine compliance or noncompliance with the statutory criteria of

Section 39.2 of the Environmental Protection Act;

IT IS HEREBY DETERMINED:

Jurisdiction

The Board finds that all jurisdictional requirements have been satisfied. Thus,

the Board has jurisdiction to consider WMII’s application.

Fundamental Fairness

The Board finds that the proceedings have been conducted in a fundamentally

fair manner.

Statutory Criteria

Section 39.2(a) of the Illinois Environmental Protection Act requires that an

applicant for local siting approval demonstrate compliance with nine criteria.

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

is intended to serve. The Board finds that the proposed facility is necessary to

accommodate the waste needs ofthe area it is intended to serve.

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

public health, safety, and welfare will be protected. The Board finds that the

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

public health, safety, and welfare will be protected. However, that finding is

based upon the imposition of the following special conditions:

There shall be no vertical expansion of the existing facility.

The lateral expansion must be considered a separate unit from the

existing landfill, as defined in 35 Ill.Adm.Code 810.103, and separate

groundwater monitoring networks shall be maintained for the expansion

and for the existing landfill.

A field verification must be performed to locate all private wells, currently

used as a source of potable water, located within 1,000 feet of all

boundaries of the property.

Downgradient monitoring well spacing in the uppermost aquifer

(regardless of gradient) must be provided, where adjacent potable water

supply wells are located in the Dolomite.

The sand deposits along the south and east side of the property must be

monitored as potential contaminant migration pathways.

The distance from the waste footprint to the east property boundary shall

not be less than 150 feet.

An independent engineer shall be on-site to observe the sand drainage

layer and the initial lift of waste placed in any new cell. The engineer shall

report directly to the County, and shall have the authority to stop

placement of sand or waste during this initial operation if he or she

observes any condition that would or could damage the bottom liner.

The active face must be kept at a minimum to reduce litter, vector, and

odor impacts. The active face shall be a maximum of 180 feet by 120

feet, excepting the area allowed for random inspections, unless an

alternative minimum size is specifically approved by the County Board.

Trucks holding waste shall not be parked or stored overnight at the facility,

or staged on Route 45/52, or on the right-of-way outside of the landfill

facility.

Fencing is required to prevent unauthorized access. An eight-foot high

wooden or other view-obstructing, County acceptable fence shall be

constructed on the east side of the property to help block the view of the

site. A fence that fully encloses the operation shall be constructed to

prevent access to the site before landfill operations begin on the

expansion. As cells are developed, the fence shall be extended to

encompass the waste footprint.

Litter control is an important consideration. The landfill operator shall pick

up litter on a daily basis along Route 45/52 between the landfill and the I-

57 interchange, as well as at least one-quarter mile south of the landfill

along Route 45/52. If allowed by adjacent property owners, the landfill

operator shall remove any litter attributable to the landfill on those

adjacent properties on a weekly basis. Perimeter picking on site shall be

performed daily to remove litterfrom trees, fencing, and berms.

Video

recordings of all traffic entering the site shall be retained for a period

of at least six months. The County shall have the right to review the

recordings within two days of requesting to review a tape.

Leachate shall not be recirculated for a period of at least four years after

the receipt of the operating permit. Following this period, the landfill

operator may, if it chooses, petition the County Board to recirculate

leachate. The County Board shall review the operational record of the site

and obtain advice from an independent technical expert to determine if the

operator has demonstrated that leachate recirculation is a safe and

appropriate method to handle the leachate at this facility. Reasonable

expenses of the technical expert shall be reimbursed by the landfill

operator. Leachate may not be recirculated without the express approval

of the County Board.

The minimum number of random load inspections shall be three per week

as specified in state regulations. For any amount of tonnage received

above an average of 500 tons per day, the number of inspections shall be

increased on the following basis:

For each 500 ton per day average increase, the number of random

weekly inspections shall be increased by two. For example, if up to

1000 tons per day average is accepted the previous week, the

week shall have five inspections (three inspections for the first 500

tons, and two for the next 500). If the weekly rate is 2000 tons per

day, the inspection rate is three plus two plus two plus two, to equal

nine random inspections.

After five years of operation, the landfill operator may request a review

and reconsideration of this random inspection requirement by the County

Board. The County landfill inspector shall have the right to inspect and to

be present at any random load inspection.

The landfill operator shall install a radiation detector at the scale house.

The landfill operator shall record any alarm, and notify the County of each

occurrence, the level of radiation detected, and the manner of response.

The maximum height of the landfill, and the lateral extent of the landfill,

shall not exceed the height and lateral extent shown on the plans provided

in the application.

The landfill operator shall build the berms on the west side of the property

at least 1,000 feet in advance of any cell construction, measured from the

southernmost coordinate of the cell.

For example, if the cell’s

southernmost coordinate is S 3500, then the berm shall extend to S 4500

or further south. The only exception to this condition is during the

construction of Phase I.

The gas line that is to be relocated shall be fully sealed from any potential

migration from the landfill. If the pipeline is within 200 feet of the waste

footprint, the trench where the pipeline is removed shall be sealed with a

low permeability material. The construction shall be certified by an

independent professional engineer.

Proof of each equipment operator’s training shall be provided to the

County prior to that operator’s work at the site.

The landfill operator shall not request the use of sewage sludge as a

component of final cover in its IEPA permit application without first

obtaining County Board approval of such use.

An automatic monitoring system shall be installed to monitor the level of

leachate from each leachate sump area. The system shall record the

head in the sump such that at no time will the leachate level be allowed to

rise above the level that corresponds to one foot of head on the liner. The

landfill operator shall maintain the records from the automatic monitoring

system, and make those records accessible to the County.

The Kankakee County Planning Director shall be informed, prior to

construction, of the stormwater control planned for each phase of landfill

development. The operator shall provide the Planning Director with a

copy of all correspondence to or from the Illinois Environmental Protection

Agency related to stormwater detention and runoff control operations.

The landfill operator shall implement the complaint procedure outlined in

the application, including a hot line phone number, to address complaints.

The landfill operator shall install and maintain a double composite liner.

The landfill operator shall locate any farm drainage tiles on the property,

and work with the County and approjriate drainage districts regarding

possible removal or relocation of those tiles.

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

of the surrounding area and to minimize the effect on the value of the

surrounding property. The Board finds that the proposed facility is located so as

to minimize incompatibility with the character of the surrounding area and to

minimize the effect on the value of the surrounding property. However, that

finding is based upon the imposition of the following special conditions:

The landfill operator shall build the berms on the west side of the property

at least 1000 feet in advance of any cell construction, measured from the

southernmost coordinate of the cell.

For example, if the cell’s

southernmost coordinate is S 3500, then the berm shall extend to S 4500

or further south. The only exception to this condition is during the

construction of Phase I.

The area on the west side of the landfill that has no proposed berming

shall have trees planted on the exterior slope of the access road to

provide a visual barrier.

Any vegetation planted on the west side of the landfill as a visual barrier

shall be at least ten feet tall, and at a density adequate to provide a visual

barrier.

The distance from the waste footprint to the east property boundary shall

not be less than 150 feet.

A visual barrier independent of the landfill cap shall be placed at least ten

feet in height above grade at or near the east property line to include

vegetation, undulating berms, and fencing.

Whether the facility is located outside the boundary of the 100 year floodplain, or

the site is floodproofed. The Board finds that the proposed facility is located

outside the boundary of the 100 year floodplain.

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

to the surrounding area from fire, spills, or other operational accidents. The

Board finds that the plan of operations for the facility is designed to minimize the

danger to the surrounding area from fire, spills, or other operational accidents.

However, that finding is based upon the imposition of the following special

condition:

The landfill operator shall install a radiation detector at the scale house.

The landfill operator shall record any alarm, and notify the County of each

occurrence, the level of radiation detected, and the manner of response.

Whether the traffic patterns to or from the facility are designed to minimize the

impact on existing traffic flows. The Board finds that the traffic patterns to or from

the facility are designed to minimize the impact on existing traffic flows.

However, that finding is based upon the imposition of the following special

conditions:

All construction plans for the facility entrance shall be provided to the

County Highway Engineer prior to construction. The landfill operator shall

demonstrate to the County that sight distance of at least 1,015 feet of

visibility can be achieved by the final entrance design. All improvements

higher than three and a half feet above the elevation of the nearest

pavement edge shall be set back at least 50 feet from Route 45/52.

The traffic site improvements identified in the application must be

completed prior to operation of the expansion.

The onsite traffic route for the customer convenience area (public drop-off)

should be separate from the onsite traffic route designed for the

commercial landfill operation.

The landfill operator shall comply with all use and weight restrictions

imposed on area roads by the County Highway Engineer and/or the Otto

Township Road Commissioner.

The County Highway Engineer shall be informed of the planned turning

radius of the first onsite curve, and his approval of that turning radius must

be obtained prior to construction.

Advance warning signs would be beneficial on Route 45/52, in both

directions, in advance of the proposed entrance. For example, a “side-

road ahead” symbol sign, or a “Trucks Entering Roadway” sign could be

posted. The landfill operator shall provide its opinion about signage to

IDOT and to the County Highway Engineer prior to the operator’s request

for a construction permit.

The landfill operator shall notify IDOT of all concerns noted in these

conditions when applying for an Intersection Design Study (IDS), and

those concerns shall be addressed in the operator’s efforts to secure a

construction permit. The landfill operator shall provide a copy of its permit

application to the County Planning Director.

Trucks shall not be staged outside the gates prior to the opening of the

facility.

The landfill operator shall develop recommended truck routes to and from

the facility, using Interstate 57 and Route 45/52, and shall distribute those

recommended routes to trucks and contractors using the facility.

If the facility will be treating, storing or disposing of hazardous waste, an

emergency response plan exists for the facility which includes notification,

containment and evacuation procedures to be used in case of an accidental

release. The Board finds that the facility will not be treating, storing, or disposing

of hazardous waste.

Therefore, the Board finds that this criterion is not

applicable.

If the facility is to be located in a county where the county board has adopted a

solid waste management plan consistent with the planning requirements of the

Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act,

the facility is consistent with that plan. The Board finds that the facility is

consistent with the Kankakee County Solid Waste Management Plan. However,

that finding is based upon the imposition of the following special conditions:

The landfill operator must comply with all obligations and responsibilities

of the December 21, 2001 Host Agreement between the County and

Waste Management of Illinois, Inc.

The landfill operator must employ independent appraisers acceptable to

the County as part of the Property Value Guarantee Program.

The Property Value Guarantee Program must be amended to provide that

the Program continues for ten years after the included Property Owners

are notified that waste is no longer being disposed of at the facility.

If the facility will be located in a regulated recharge area, any applicable

requirements specific by the Board for such areas have been met. The Board

finds that the facility will not be located in a regulated recharge area. Therefore,

the Board finds that this criterion is not applicable.

• Conclusion

The Board finds that all conditions recommended in this resolution are

reasonable and necessary to accomplish the purposes of Section 39.2 of the

Environmental Protection Act. (415 ILCS 5/39.2.) Because the Board has found that

all applicable statutory criteria have been met, local siting approval for the proposed

expansion is granted, subject to the above-stated conditions.

This Decision made and entered on January 31, 2003.

KARL A.

KRU E,

,~L

CHAIRMAN

ATTEST:

BRUCE CLARK, COUNTY CLERK