r ~

BEFORE THE

ILLINOIS POLLUTION CONTRO~O

CLER

‘S OFFICE

LOWE TRANSFER, INC. and

)

JUN

S

2003

MARSHALL LOWE,

)

Co-Petitioners,

_______

COUNTY BOARD

OF McHENRY

)

COUNTY, ILLINOIS

)

Respondents.

)

NOTICE OF FILING

TO:

See List Referenced in Proof ofService

PLEASE TAKE NOTICE that on June 4, 2003, we filed with the Illinois Pollution

Control Board,1he attached Lowe Transfer, Inc. and Marshall Lowe’s

PETITION FOR

HEARING

TO CONTEST SITE LOCATION

DENIAL

and

APPEARANCE in the above

entitled matter.

LOWE TRANSFER,

INC. and

MARSHALL LOWE

By:__________

One ofIts

Attorney

PROOF OF SERVICE

I, a non-attorney,

on oath

state that I served the

foregoing Petition on

the following parties by

depositing

same in the U. S. mail at or before

5:00 p.m. on this

4(11

day of June, 2003:

Mr. MichaelW. Tryon

Ms. Katherine

C.

Schultz

Chairman

-

McHenry County Board

McHenry County Clerk

McHenry County Government Center

McHenry County Government Center

2200 North Seminary Avenue

2200 North Seminary Avenue

Woodstock,

Illinois

60098

Woodstock,

Illinois

60098

Assistant State’s Attorney R.

Glenn Gable

States Attorneys Office

McHenry County Government Center

2200

North Seminary Avenue

Woodstock,

Illinois

60098

~

,1.

/-/~r~j-

David W.

McArdle

ZUKOWSKIROGERS FLOOD & MCARDLE

50

Virginia Street

Crystal Lake, Illinois 60014

(815)459-2050

Attorney Registration No.

06182127

vs.

STATE OF IWNOIS

)

No. PCB 03-

______

Pollution

Control Board

)

(Pollution Control Facility Siting Appeal)

This document is printed on recycled paper.

---

CLERK’S OFFICE

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

JUN

5

2003

LOWE TRANSFER, INC.

and

)

STATE OF IWNOIS

MARSHALL LOWE,

)

Pollution

Control Board

Co-Petitioners,

)

No. PCB 03-

~

vs.

)

(Pollution Control Facility Siting Appeal)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS

)

Respondents.

)

APPEARANCE

The undersigned enters their appearance on behalfof Co-Petitioners, LOWE

TRANSFER,

INC. and MARSHALL LOWE.

LOWE

TRANSFER, INC.

and

MARSHALL LOWE

By:____

One ofIts Attorney

David W. McArdle

ZUKOWSKI, ROGERS, FLOOD & McARDLE

Attorneys for Lowe Transfer, Inc. and Marshall Lowe

50 Virginia Street

Crystal Lake, Illinois

60014

(815) 459-2050

(815) 459-9057

(Fax)

This

document is printed on recycled paper.

---

J~3~9Qf~CE

U:\HAHARKJN\LOWE\PETITI0NDENI4L. TRANSFER.wpd

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

JUN

S

2003

LOWE TRANSFER, INC.

and

)

p

~TATEOF

ILLINoIS

MARSHALL LOWE,

)

~

utlon

Control Board

Co-Petitioners,

)

No. PCB 03-

_____

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

COUNTY BOARD

OF McHENRY

)

COUNTY, ILLINOIS

)

Respondent.

)

PETITION FOR HEARING

TO CONTEST

SITE LOCATION DENIAL

Co-Petitioners

Lowe

Transfer, Inc.

and

Marshall Lowe

(“Lowe”), by Zukowski,

Rogers,

Flood & McArdle, its attorneys, respectfully request a hearing to contestthe decision ofthe County

Board

of McHenry

County,

Illinois

(“County

Board”)

denying

site

location

for

the

proposed

NorthwestHighwayTransfer Facility(“Facility”). Insupport ofthis Petition, Lowe states as follows:

1.

This

Petition

is

filed pursuant

to

Section

40.1(a)

of the

Illinois

Environmental

Protection Act (“Act”) (415 ILCS

5/40.1).

2.

Pursuant to 415 ILCS 5/39.2, on November20, 2002, Lowe submitted its request for

site location approval forthe Facility(“Request”).

The Facility is a municipal waste transferstation

located

on

a 2.46-acre site

on

U.S.

Route

14

in unincorporated McHenry County,

Illinois.

The

Faci lity willbe usedfor the consolidation and transferofresidential, commercial and industrial non-

hazardous municipal waste with an

average of 600

tons per day.

3.

Following service and publication ofrequired notices, pub1icheaiingswereconducted

before a hearing officer and McHemy County’s Pollution Control Facility Siting Committee, from

1

This

document is printed

on recycled paper.

---

March

1

to March

15, 2003.

On May 6, 2003,

the County Board denied Lowe’s Request, making

Lowe a proper petitioner under §35 Ill. Adm.

Code Part 107.200(a).

A true and correct copy ofthe

May 6, 2003

County Board Resolution denyingsame is attached hereto and made a part hereof as

Exhibit A.

4.

Lowe conteststhe County Board’s decisionto denythe Requeston groundsincluding

the following:

a.

The May 6,

2003

decision relative

to

Criteria (ii),

(iii)

and (v) (415

ILCS

5/39.2(u),

(iii) and (v)) not being met,

is against the manifest weight ofthe evidence;

b.

The County

Board’s imposition of a

“host

fee” as a

special

condition of

approving Criteria (viii) (415 ILCS

5/39.2(viii)),

was unauthorized

and unlawful;

c.

The following phrase in 415 ILCS

5/3

9.2 was applied in an unlawful manner

by theCounty Board in paragraphJ “Unnumbered Criterion”on page 4 ofthe May6, 2003 decision:

The county board

or the governing

body of the

municipality

may

also

consider

as

evidence

the

previous

operating

experience

and

past

record

of

convictions

or

admissions

of

violations

of

the

applicant(and any subsidiary orparent corporation) in

thefield ofsolid waste management when considering

criteria (ii) and (v) under this

Section.

d.

The record fails to show

any basis for the County Board’s decision; and

e.

Inviolation ofMcHenry County’s Regional Pollution Control Facility Siting

Ordinance No. 0-9412-1200-88, a true and correct copy ofwhich is attached hereto as “ExhibitB,”

the County Board failed to specify the reasons for its decision.

(~7(b)

and (c).)

2

This

document is printed on recycled paper.

---

WHEREFORE, Lowe Transfer, Inc. and Marshall Lowe respectfullyrequestthat the Illinois

Pollution Control Board enter an order (a) setting for hearing this

contest ofthe McHenry County

Board siting denial decision, (b) reversing the McHenry County Board siting denial

decision, and

(c) providing suchother and further relief as theIllinois Pollution Control Board deems appropriate.

Respectfully submitted,

LOWETRANSFER, INC. and MARSHALL LOWE

By,

Zukowski, Rogers, Flood

& McArdle

By___________

David W. McArdle

David W. McArdle

ZUKOWSKI,

ROGERS, FLOOD

&

MCARDLE

AttorneyNo:

06182127

Attorney for: Lowe Transfer, Inc.

and Marshall Lowe

50 Virginia Street

Crystal Lake, IL 60014

815/459-2050

815/459-9057

(fax)

3

This document

is printed

on

recycled paper.

---

REVISED

AGENDA #

11.1

RESOLUTION OF

THE

MCHENR.Y

COUNTY BOARD

CONCERNING THE LOWE

TRANSFER, INC APPLICATION

FOR A POLLUTION

CONTROL FACILITY

RESOLUTIONNO.R-200305-12-104

LOWE

TRANSFER,

INC

(“Applicant”)

has

petitioned

the

McHenry

County

Board

(“Board”)

and

the McHenry County Pollution

Control

Facility Committee

(“Committee”)

for

local siting approval of a pollution control facility.

Specifically, Applicant proposes to develop a

solid

waste

transfer

station,

as

detailed

in

its

Application

for

a

Pollution

Control

Facility

(“Application”).

WKEREAS,

the

Committee

has

conducted

various

public

hearings

and

received

testimony

from

expert

witnesses

submitted

by

the

Applicant

and other

interested

parties

for

purposes of eliciting public comment and evaluation of the Application;

and

WHEREAS, the Committee has accepted and considered all written comments

delivered

or postmarked within 30 days ofthe last public

hearing; and

WHEREAS,

the

Committee

has

reviewed

the

Application

in

light

of

the

criteria

established for consideration of siting ofpollution control facilities

in Section 39~2ofthe Illinois

Environmental

Protection

Act,

and

to

the

extent

applicable,

the

provisions

of the

McHenry

County Pollution Control Facility Siting Ordinance (the Ordinance); and

W.HIEREAS, the Committee

met

on

April

28,

2003

to

make its

recommendation to

the

full County

Board as to

whether (in

light of

its

review

and consideration of the Application) the

requestfor local siting approval should be approved or denied; and,

WHEREAS,

at the

end

of the

Committee’s

deliberations, the Committee

recommended

that local

siting approval for the facility detailed in the Application be denied; and,

WHEREAS, after review of the Application,

all

expert testimony,

all

lay testimony,

all

exhibits,

the hearing record as a whole,

all public

comments, the proposed Findings ofFact and.

Conclusions of Law

submitted by

various parties herein, as well as the Report of the McHenry

County Staff; the

record

of this

proceeding

as

a whole,

and after cotisidering

all

relevant and

applicable

factors

and

matters,

as

well

as

the

Committee’s

Findings

and

Recommendations

herein, the McHemy County Board HEREBY FINDS

as follows:

I.

That the Board has jurisdiction to rule on

the Lowe

Transfer, Inc.

application for

siting approval of a

pollution

control

facility based upon

the applicant’s

proper

notification

as provided by

Section

39.2 of the Illinois Environmental Protection

Act

and

the

County

Ordinance

as

they pertain

to

the

persons

and

entities

that

appear on the authentic tax records ofMcHenry County which are maintained by

the McHeury

County

Treasurer,

as

well

as

such

other

notice

requirements

set

LOWETERANSFERE5.6.O3approved

EXHIBIT

---

forth

in

these

statuatory

provisions.

Further,

that

the

hearing

held

on

such

Applicationwas conducted in a fundamentally fair manner.

Aye

20

Abstain

0

Nay

0

II.

(A)

CRITERION

#1:

THE

FACILITY

IS

NECESSARY

TO

ACCOMMODATE

THE

WASTE

NEEDS

OF

THE

AREA

IT

IS

INTENDED

TO SERVE.

The Applicant has demonstrated compliance with Criterion #1:

Aye

19

Abstain

o

Nay

1

(B)

CRITERION #2:

THE FACILITY IS

SO

DESIGNED, LOCATED AND

PROPOSED

TO

BE

OPERATED

THAT

THE

PUBLIC

HEALTH,

SAFETY

AND WELFARE WILL BE PROTECTED.

The Applicant has demonstrated compliance with Criterion #2:

Aye

0

Abstain

0

Nay

20

(C)

CRITERION #3:

THE FACILITY IS LOCATED SO AS TO MINIMIZE

INCOMPATIBILITY

WITH

THE

CHARACTER

OF

THE

SURROUNDING

AREA

AND

TO

MINIMIZE

THE

EFFECT

ON

THE

VALUE

OF

THE

SURROUNDING

PROPERTY.

The Applicant has demonstrated compliance with

Criterion #3:

Aye

p

Abstain

p

Nay

21

(D)

CRITERION

#4:

THE

FACILITY

IS

LOCATED

OUTSIDE

THE

BOUNDARY OF

THE

100-YEAR FLOODPLAIN

OR

THE

SITE IS FLOOD-

PROOFED.

The Applicant has demonstrated compliance with Criterion #4:

Aye

21

Abstain

0

Nay

0

(E)

CRITERION

#5:

THE PLAN

OF OPERATIONS FOR

THE FACILITY

IS

DESIGNED

TO

MINIMIZE

THE

DANGER

TO

THE

SURROUNDING

AREA FROM FIRE, SPILLS,

OR OTHER

OPERATIONAL ACCIDENTS.

2

~0

---

The Applicant has demonstrated compliance with Criterion #5:

Aye

7

Abstain

0

Nay

14

(F)

CRITERION

#6:

THE

TRAFFIC

PATTERNS

TO

OR

FROM

THE

FACILITY

ARE

SO

DESIGNED

AS

TO

MINMI1ZE

THE

IMIPACT

ON

EXISTING TRAFFIC FLOWS.

The Applicant has demonstrated compliance with Criterion #6:

Aye

19

Abstain

0

Nay

.

2

Does the Board

hold

that

its

finding of compliance with

Criterion

#6

is

subject to

any

special conditions?

Special

Condition

No.

1

—

The Applicant

shall

improve the

site or Northwest

Highway if queue storage routinely proves to be insufficient for either Northwest

Highway or this facility;

Special

Condition

No. 2

—

The

Applicant

shall

limit the

average

daily

facility

operations to

600 tons per day;

Special

Condition

No.

3

—

The Applicant must

construct

a left

turn

lane from

Northwest Highway to access the site from the North;

Special Condition No. 4.

—

The Applicant must enforce the identified truck travel

patterns.

Transfer

trucks shall not be allowed

to. travel

south from the facility. If

excessive violations

arise, the Applicant must cease operations ofthe facility until

such time that the special condition is satisfactorily met by this facility.

Aye

21

Abstain

0

Nay

0

(G)

CRITERION #7:

IF THE FACILITY WILL BE TREATING, STORING

OR DISPOSING

OF

HAZARDOUS

WASTE,

AN.EMERGENCY RESPONSE

PLAN

EXISTS

FOR

THE

FACILITY

WHICH

INCLUDES

NOTIFICATION,

CONTAINMENT,

AND

EVACUATION

PROCEDURES

TO

BE

USED

IN

CASE OF AN ACCIDENTAL RELEASE.

The Applicant has demonstrated compliance with Criterion #7:

Aye

15

Abstain

0

Nay

6

(H)

CRITERION

#8:

IF

THE

FACILITY

IS

TO

BE

LOCATED

IN

A

COUNTY

WHERE

THE

COUNTY

BOARD

HAS

ADOPTED

A

SOLE)

3

---

WASTE

MANAGEMENT

PLAN

CONSISTENT

WITH

THE

PLANNING

REQUIREMENTS

OF

THE

LOCAL

SOLE)

WASTE

DISPOSAL

ACT

OR

THE

SOLE) WASTE PLANNING AND RECYCLING ACT,

THE

FACILITY

IS CONSISTENT WITH

THAT PLAN.

The Applicant has demonstrated

compliance, with

Criterion #8:

Aye

21

Abstain

0

Nay

0

Does the Board hold

that

its

fmding of compliance

with

Criterion

#8

is

subject

to

any

special conditions?

Special Condition No.

1

—

The Applicant shall pay the host fee in the amount of

$1.90 per ton,

that

amount

being found from the record as a whole to fairly compensate

the

County for potential

impacts

caused by the transfer

station

and to meet those goals

and

requirements

imposed

upon

the

proposed

facility

by

the

McHenry

County

Solid

Waste Management Plan.

Said host fee shall be increased on January

1

ofeach calendar

year for which the facility is

open by the amount ofthe increase in the Consumer Price II

Index for the Great Lakes Region for the prior calendar year.

Aye

21

Abstain

0

Nay

0

(1)

CRITERION

#9:

If THE

FACILITY

WILL

BE

LOCATED

WITHIN

A

REGULATED

RECHARGE

AREA,

ANY

APPLICABLE

REQUIREMENTS

SPECIFIED BY THE BOARD FOR SUCH AREAS HAVE BEEN MET.

The Applicant has demonstrated compliance with Criterion #9:

Aye

21

Abstain

o

Nay

0

(J)

UNNUMBERED

CRITERION:

THE

BOARD

HAS

CONSIDERED

AS

EVIDENCE

THE

PREVIOUS

OPERATING

EXPERIENCE

OF

THE•

APPLICANT

AND

PAST

RECORD

OF

CONVICTIONS

OR

ADMISSIONS

OF

VIOLATIONS

OF

THE

APPLICANT

WHEN CONSIDERING

CRITERIA

(ii) AND (v) OF 415

ILCS

5/39.2(a).

Aye

21

Abstain

0

Nay

p

Were

the’ determinations

made by

the Board

based upon

the record

in

its

entirety,

and

only the record as presented to the Board?

4

---

Aye

21

Abstain

0

Nay

p

NOW, THEREFORE, BE IT

RESOLVED by the Board

that based upon

its

findings

on

these nine criteria, the Board hereby:

Approves the Application for local siting approval.

XX’

.Denies the Application fOr local siting approval.

21AYE

ONAY

BE IT FURTHER RESOLVED that this Resolution

becomes effective immediately upon

the adoption thereof.

BE IT FURTHER RESOLVED that the County Clerk is hereby authorized to distribute a

certified copy of this Resolution to the County Administrator, the Deputy

County Administrator,

the

McHenry

County

State’s

Attorney,

the

Planning

and

Development

Director,

and

the

McHenry County Health Department Administrator.

PRESENTED,

PASSED AND APPROVED this

6th

da

tif

Nay

2003.

MCIf~NRYCOUNTY, BOARD

MICHAEL W. TRYO~JCHAIRMAN

MCHENRY COUNTY’~BOARD

5

ATTEST:

Ai~6t~~~

_____

KATHERINE C. SCHULTZ

COUNTY CLERK

70359832v1 817813

---

STATE OF ILLINOIS

)

SS

COUNTY OF MCHENRY

)

I,

Katherine

C.

Schultz, County Clerk within and

for said

County and State

aforesaid, do

hereby

certiI~’

the foregoing to be a

true and

complete copy of Resolution No. R-200305-12-1 04

a Resolution of

the

McHenry

County Board

concerning the Lowe Transfer, Inc. Application for apollution control facility.

WHEREOF

I

have hereunto subscribed my hand and affixed the official seal ofsaid

County, at my office

in Woodstock, Illinois

this

~

dayof

M

AD,

~

t”n~

C.

~

McHe~County Clerk

.

---

ORDINANCE NO.

0-9412-1200-88

PREVIOUSLY ADOPTED

ORDINANCE NO.

0-9304-1200-20

THE REGIONAL POLLUTION CONTROL

FACILITY SITING ORDINANCE

BE IT ORDAINED by the County Board of the County of McHenry,

Illinois:

WHEREAS, the Illinois Environmental Protection Act

(415 ILCS

5/1 ~

~g.’)

has provided for approval of the county board of

a

county as to the site location suitability for each new Regional

Pollution Control Facility,

the following ordinance is intended to

delineate

the

substance

and procedure

for

the

application

and

hearing of such proposed site locations,

and shall be called “The

Regional Pollution Control Facility Siting Ordinance”.

SECTION

1:

DEFINITIONS

(a)

ACT

is the Illinois Environmental Protection Act as

amended

(415 ILCS 5/1 ~

(b)

APPLICANT

is

any

person,

firm

or

partnership,

association, corporation,

company or organization of any kind.

(c)

HAZARDOUS WASTE DISPOSAL SITE

is

a site at which

hazardous waste is disposed.

Hazardous Waste is waste as defined

in the Illinois Environmental Protection Act, as amended

(415

ILCS’

5/1 et ~g.)

(The Act).

(d)

(a)

REGIONAL POLLUTION

CONTROL

FACILITY

is

any waste

storage

site,

sanitary

landfill,

waste

disposal

site,

waste

transfer

station,

waste

treatment

facility or waste

incinerator

that

accepts waste

from or that

serves

an

area that

exceeds

or

extends over the boundaries

of any local general purpose unit of

government.

This includes sewers, sewage treatment plants, and any

other facilities owned or operated by sanitary districts organized

under the Metropolitan Water Reclamation Act, as now or hereafter

amended.1

The following are not regional pollution control facilities:

(1)

sites or facilities located within the boundary

of

a local

general purpose unit of government and intended to serve only that

170 ILCS

2605/1

~

1

EXHIBIT

B

---

0—9412—1200—88

entity;

(2) waste storage sites regulated under 40 CFR, Part 761.42;

(3) sites or facilities used by any person conducting a waste

storage, waste treatment, waste disposal, waste transfer or waste

incineration

operation,

or

a

combination

thereof,

for

wastes

generated by such person’s

own activities,

when such wastes

are

stored, treated, disposed of, transferred or incinerated within the

site or facility owned,

controlled or operated by such person,

or

when

such

wastes

are

transported

within

or

between

sites

or

facilities owned,

controlled or operated by such person;

(4)

sites

or

facilities

at

which

the

State

is

performing

removal or remedial action pursuant to Section 22.2 or 55~3;2

(5)

abandoned

quarries

used

solely

for

the

disposal

of

concrete,

earth materials,

gravel,

or aggregate debris resulting

from road construction activities conducted by a unit of government

or construction activities due to the construction and installation

of underground pipes, lines,

conduit or wires off of the premises

of

a

public

utility

company

which

are

conducted

by

a

public

utility;

‘

(6)

sites

or

facilities used by any person to specifically

conduct a landscape composting operation;

(7)

regional

facilities

as

defined

in the Central Midwest

Interstate Low-Level Radioactive Waste Compact;3

(8)

the portion of a site or facility where coal combustion

wastes are stored or disposed of in accordance with subdivision

(r)

(2)

or

(r)

(3)

of Section 21;

(9) the portion of a site or facility used for the collection,

storage or processing of waste tires as defined in Title XIV;4

(10) the portion of a site or facility used for treatment of

petroleum

contaminated

materials

by

application

onto

or

incorporation into the soil surface and any portion of that site or

facility used for the storage of petroleum contaminated materials

before treatment.

Only these categories

of petroleum listed in

paragraph

(5) of subsection

(a) of Section 22.l8b are exempt under

this subdivision;

2415 ILCS 5/22.2 OR 5/55.3.

3Former Ill.Rev.Stat.

Chapter 127,

~

63—1

(repealed).

~415 ILCS 5/53 et ,~g.

2

---

(11)

the portion

of

a

site

or

facility where

used oil

is

collected

or

stored prior

to

shipment to

a recycling or

energy

recovery

facility,

provided

that

the

used

oil

is

generated

by

households or commercial establishments, and the site or facility

is

a

recycling

center

or

a

business

where

oil

or

gasoline

is

sold

at

retail.

(b)

A

new

regional

pollution

control

facility

is:

(1)

a

regional

pollution

control

facility

initially

permitted

for development

or

construction

after

July

1,

1981;

or

(2)

the area of expansion beyond the boundary of a currently

permitted regional pollution control

facility;, or

(3) a permitted regional pollution control facility requesting

approval

to

store,

dispose

of,

transfer or

incinerate,

for the

first time,

any special or hazardous waste.

(e)

COUNTY is McHenry County,

Illinois.

(f)

COUNTY BOARD

is the McHenry County Board.

(g)

IEPA

is

the

Illinois

Environmental

Protection

Agency..

In

addition,

all

other

words

used

in

this

Ordinance

and

defined in the Act shall have the same definitions and, meanings as

found in said Act.

SECTION 2:

COUNTY

APPROVAL

OF

REGIONAL

POLLUTION

CONTROL

FACILITIES

No site approval for the development or construction of a new

Regional Pollution

Control

Facility

or expansion

of an existing

Regional

Pollution

Control

Facility

in

McHenry

County

may

be

granted by the McHenry County Board unless an application .is filed

for approval of such a site and is submitted for consideration to

said County Board.

An application for site approval need not be

submitted

if

exempted by law or

if

the site

is

not

a Regional

Pollution Control Facility as defined by the Act.

SECTIOI~

3:

REGIONAL

POLLUTION

CONTROL

FACILITY

CO~114ITTEE

A1~D

CON~ITTEE

CKAIRMAN

(a)

.

A

Regional

Pollution

Control

Facility

Committee

(the

Committee)

shall

be

established

by

the

McHenry

County

Board

and

shall

consist

of

six

(6)

members.

One

(1)

County

Board

member

from

each district

is

to

be appointed by

the Chairman of

the County

Board for a term of one

(1)

year.

3

---

G..

(b)

The

Chairman

of

the

Regional

Pollution

Control

Facility Committee shall be appointed by the Chairman of the County

Board and shall be the seventh

(7th)

member of the Committee.

One

member of the Committee shall be designated Acting Chairman in the

event of the Chairman’s absence.

In the alternative, the Chairman

of the

Coun’ty Board

may elect

if

he/she chooses,

to

assume the

chair of the Regional Pollution Control Facility COmmittee.

The

Chairman shall serve for one

(1) year; no Chairman shall serve for

more than two

(2) consecutive terms.

The Chairman shall vote only

in the event that there is a tie in the vote.

(c)

All meetings and hearings of the Regional Pollution

Control Facility Committee shall be at the call of the Committee

Chairman,

or in his/her absence, the Acting Chairman,

or by four

(4) members of the Committee at such times as may be required.

(d)

The

Committee

shall

elect

a

hearing

officer

or

officers

to

serve

during

any

public

hearing

concerning,

an

application for site approval.

The hearing officer(s)

shall ‘serve

at the pleasure of the Committee’.

Compensation for the services of

the hearing

officer(s)

shall

be

mutually

agreed

upon

before

a

hearing.

The duties of the hearing Officer(s)

shall.be provided

for

in the Articles

of

Rules

and Procedures Regional

Pollution

Control Facility Committee-McHenry County, Illinois

(the “Articles

of

Rules

and

Procedures”)

.

SECTION 4:

PROCEDURE FOR FILING AN APPLICATION FOR APPROVAL

OF

A

REGIONAL

POLLUTION

CONTROL

FACILITY

(a)

(i)

In

order

to

request

approval

of

a

proposed

Regional

Pollution

Control

Facility

or expansion of an existing Regional Pollution

Control

Facility

in

McHenry

County,

an

applicant

must

file

an

application with the

County Board,

with

a

minimum

of

thirty

(30)

copies of the application and the substance of

the

applicant’s

proposal

showing

sufficient

details

describing

the prop~

facility

to

demonstrate

compliance,

includin

all

site

ps,

ex

i

maps, and all ~qcumeI~ts~s~f

any,

submitted

as

of

that

date

to

the

IEPA

pertaining

to

the

proposed

facility

in

connection with

said applicant’s application

except

trade

secrets

as

determined

under

Section 7.1 of the Act (415 ILCS 5/7.1).

Said

application may be obtained from the secretary’

of the McHenry County Board.

(ii)

In addition, the applicant must file with

the County Board a depo~it fee of $150,000.00

(One

Hundred

Fifty

Thousand

and

00/100

Dollars) when applying for site approval of a

4

---

0—9412—1200—88

Regional

Pollution

Control

Facility,

except

that

a

deposit

fee

of

$200,000.00

(Two

Hundred

Thousand

and

00/100

Dollars)

is

required

if

said facility is designed as a Hazardous Waste

‘Disposal

Site.

The

fee

as

applicable

is

intended

to

defray

the

reasonable

and

necessary costs of processing the application,

including:

space rental, hearing officer(s),

court

reporter,

transcription

costs,

public

notice,

staff

review

times,

Committee

per

diems, State’s Attorney and County consultants

(including tests,

exhibits

and testimony,

if

any, provided by said consultants), any other.

relevant costs incidental to the consideration

of an application,

and the costs of preparing

the record

for

appeal,

if

any

appeal

of

a

County Board decision is made to the Illinois

Pollution Control Board.

If the costs to the

County are less than the amount paid

in the

form

of

the

deposit,

the

e~cess shall

be

refunded

to the

applicant.

Should there be

any additional

costs incurred by

the

County

over

the

amounts

,

paid

as

deposit,

the

applicant

shall

bear any and all

additional

costs.

‘

.

.

(iii)

The

application

must

be

answered

completely with

inforinatiori provided for each

question,

accompanied

by

all

site

plans,

exhibits,

maps and documents

as

s ecifi

S

CT

.

a

i

above.

The

date

the

applicant

files

the

application

with

the

office of the County Board shall be considered

the

official

filing

date

for

all

time

limit

purposes.

At

any

time

prior

to

completion

by

the

applicant

of

the

presentation

of

the

applicant’s

factual

evidence

and

an

opportunity

for

cross-questioning

by

the

County

Board

and,

any

participants,

the

applicant’ may file not more than one amended

application upon

payment

of

additional

fees

pursuant

to

Section

39.2(k)

of

the Act

and

SECTION

4(a)

(ii)

of this Ordinance shall

be

extended

for an additional period of

90 days.

(b)

(i)

Upon receipt of

a completed application,

and,

payment

of

the

deposit

fee,

the

secretary

of

the

County

Board

shall

date

stamp

all

the

copies

and immediately deliver one copy to

the

Chairman of the County Board,

one

copy

to

~

Dj~r~tn~ofthe

Department

of. Planning

~

one

copy

to

the

County

Solid

5

---

0—9412—1200—88

Waste

Manager,

one

copy

to

each

municipality

within

one

and

one-half

miles

of the proposed

facility and one copy to the Chairman of the

Regional

Pollution

Control

Facility

Committee.

(ii)

In

order

to

develop

a

record

sufficient

to form the basis

of

an appeal of the County

Board decision, the NcHenry County Department

of

Health

and

the

St~~e

may

retain

consulta~nts

na~e~Q~the

C,punty.

The

consultants

and

the

County

a~3~lesshall

then commence a study

of the

application.

The applicants

shall cooperate

fully with the consultants and the technical

staff

of the

County

in

their

review

of the

application.

(c)

A

copy

of

the

application

and

all

related

documents

or

other materials on file with the County Board shall

be

made

available

for

public

inspection

in

the office of the County

Board.

Members of the public shall be allowed to obtain a copy of

said request

or any part

thereof upon payment

of

actual cost of

reproduction

and

proper

request

as

outlined

in

the

Freedom

of

Information Act

(5 ILCS 140/1 et ~g.)

(d)

.

The

applicant

shall

meet

all

notice

requirements

as

required

by

415

ILCS

5/1

et

~g.

to

wit:

(i)

The

applicant

shall

cause to be published

no sooner than thirty

(30) days nor later than

fourteen

(14)

,

days

prior

to

a

request

for

location

approval

a

‘written’

notice

of

such

request

to

be

served

either

in

person

or

by

registered

mail,

return

receipt

requested,

o,n

the

owners

of

all

property

within

the

subject

area not solely owned by the applicant, and on

the

owners

of

all

property

within

two

hundred

~-fifty

(250)

feet

in each direction of the lot

,7

line

of

the

subject

property,

said

owners

~,,/

being such

persons

or

entities which appear

from the authentic tax records

of the County

in

which

such,

facility

is

to

be

located;

provided

that

the

number

of

all

feet

occupied

by

all

public

roads,

streets,

alleys

and

other

publiC ways shall be excluded in computing the

two

hundred

fifty

(250)

feet

requirement,

provided further,

,that in no event shall this

requirement

exceed

four hundred

(400)

feet,

including

public

streets,

alleys

and

other

public

ways.

6

---

0—9412—1200—88

(ii)

The

applicant shall

also serve,

within

fourteen

~4)~

days

p~cj~o~

to

a

request

for

location

approval,

written

notice

upon

members

of

the

General

Assembly

from

the

legislative

district

in

which

the proposed

facility

is

located and this notice shall be published in

a

newspaper

of

general

circulation

published

in

McHenry

County.

Such notice shall

state

the

name

and

address

of

the

applicant,

the

location of the proposed site, the nature and

size

of

the

development,

the

nature

of

the

V

activity proposed,

the probable life

of the

proposed

activity,

the

date

when

the

request

for

site

approval will

be

submitted

to

the

County

Board,

a description

of the right

of

persons

to

comment

on

such

request

as

hereafter provided

and any other information

as

may

be

required

by

the

Committee

Rules

and

Procedures.

/

(iii)

The

applicant

shall

file

proof

o~

all notice requirements with the County Board

within

fourteen

(14)

days

of

their

publication.

SECTION

5:

PROCEDURE

FOR

FILING

WRITTEN

COM~IENTS

TO

AN

APPLICATION

FOR

APPROVAL

OF

A

REGIONAL POLLUTION CONTROL FACILITY

(a)

Any person

may file

written

comment

with

the

County

Board

concerning

the

appropriateness

of ‘the

proposed

site

,for

its

intended

purpose.

The

County

Board

shall

consider

any

comment

received

or

postmarked

from

the

date

of

acceptance

of

the

application through and until ~thirty

(30)

days after the date

of

the last public hearing

in making its final determination.

Said

written

comments

shall

be

sent

or

delivered

to

the

Office

of

the

McHenry

County

Board,

2200

N.

Seminary

Avenue,

Woodstock,

IL

60098.

Upon receipt, the County Board secretary shall date stamp

the comment.

(b)

These comments shall become a part of the record of

the

proceedings

of

the

Committee.

SECTION

6:

HEARINGS ON APPLICATIONS

(a)

At

least one public hearing shall

be held by the

Regional

Pollution

Control

Facility

Committee

no

sooner

than

ninety

(90)

days

but

no

later

than

one

hundred

twenty

(120)

days

from

the

receipt

of

the

request

for

site

approval.

(b)

The

applicant

is

to

cause

to

be

published

a

notice

of

said

hearing

in

a

newspaper

of

general

circulation

published

in

7

---

0—9412—1200—88

McHenry

County

not

later

than

fourteen

(14)

days

before

said

hearing,

and

notice

by

certified

mail

to

all

members

of

the

General

Assembly

from

the

district

in which the proposed site is located,

to

the

governing

authority

of

every

municipality

contiguous

to

the

proposed

site

or

contiguous

to

the

municipality

in

which

the

proposed

site

is

to

be

located,

and

to

the

Illinois

Environmental

Protection

Agency.

The public

hearing

shall

develop

a

record

sufficient to form the basis of any appeal.

The fact that a member

of

the

County

Board

has

publicly

expressed

an

opinion

on

an

issue

related

to

site

review proceeding shall not preclude the member

from

taking

part

in

the

proceeding

and

voting

on

the

issue.

(c)

The

Chairman

of

the

Committee

shall

notify

the

applicant

in

writing

of

,the

date

of

the

public

hearing

before

the

Committee,

at

least

twenty

one

(21)

days

before

that

hearing,

in.

order

that

the

applicant

may

publish

notice

of

that

hearing.

(d)

During the course of the public hearing before the

Committee, the Committee shall receive testimony, such testimony to

be

recorded,

from

the

applicant

and

witnesses

the

applicant

may

call,

any County witnesses,

and other witnesses

or objectors,

and

shall’

recommend

approval

only

if

the

proposed

facility

meets

the

following

criteria:

(1)

the

facility

is

necessary

to

accommodate the waste needs of the area it is

intended to serve;

(ii)

the

facility

is

so

designed,

located

and proposed

to be

operated that the public

health,

safety and welfare will be protected;

(iii)

the

facility

is

located

so

as

to

minimize

incompatibility

with

the

character

of

the

surrounding

area

and

to

minimize

the

effect

on

the

value

of

the

surrounding

property;

(iv)

the

facility

is

located

outside

the

boundary

of

the

100

year

flood

plain

or

the

site is flood-proofed;

(v)

the

plan

of

operations

for

the

facility

is

designed

to

minimize

the

danger

to

the

surrounding

area

from

fire,

spills

or

other

operational

accidents;

(vi)

the

traffic

patterns

to

or

from

the

facility

are

so

designed

as

to

minimize

the

impact on existing traffic flows;

8

---

0—9 41 2—1200—88

(vii)

if

the

facility

will

be

treating,

storing

or

disposing

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;

(viii)

the

facility

is

consistent

with

any

current

solid

waste

management

plan

adopted

by

the

County

Board

of

the

County

which

is

consistent with the planning requirements

of

the Local

Solid

Waste

Disposal

Act5

or the

Solid Waste Planning and Recycling Act;6 and

(ix)

if

the

facility

will

be

located

within’

a

regulated

recharge

area,

any

applicable

requirements

specified

by

‘the

Illinois

Pollution

Control

Board

for

such

areas have been met.

The

Committee

and

the

County

Board

may also

consider

as

evidence

the

previous

operating

experience

and

past

record

of

convictions

or

admissions

of’ violations

of

the

applicant

(and

any

subsidiary

or

.

parent

corporation)

in

the

field

of

solid

waste

management

when

considering

criteria

(ii)

and

(v)

above

and

of

Section

39.2(a)

of

“the

Act”.

(e)

A

hearing

officer

or

officers,

appointed

by

the

Committee,

shall preside at the public hearing and shall make any

decisions

concerning

the

admission

of

evidence

tihd

the

manner

in

which the hearing

is conducted subject

to this ‘Ordinance and the

Articles of Rules

and Procedures of the Committee.

However, the

hearing

officer(s)

shall

make

all

rulings

and

decisions

in

accordance

with

fundamental

fairness.

No ruling

of the hearing

officer(s)

shall ~

TeToETT~County Board.

(f)

The decision of the Committee on the application is

to

be

in

writing,

specifying

the

reason(s)

for

the

decision,

such

reason(s)

to

be

in

accordance

with

(d)

of

this

Section.

The

Committee shall submit its report to the County Board as soon as

practicable.

(g)

The

siting

approval

procedures,

criteria

and

appeal

procedures

provided

for

in the Act

for

new Regional

Pollution

Control

Facilities

as

set forth

in this

Ordinance

shall be

the

54l5’ILCS

10/1

et

,~g.

64j5

ILCS

15/1

et

,~g.

9

---

0—9412—1200—88

exclusive

siting procedures

and

rules

and

approval procedures.

Local

zoning

or

other

local

land

use

requirements

shall

not

be

applicable

to

such

siting

decisions.

SECTION

7:

DECISIONS

(a)

‘

Once

the

Committee

has

made

its

recommendation

and

reduced

its

recommendation

to

writing,

the

written

recommendation

shall be submitted to the full County Board for its decision as to

the

ultimate

approval

or

disapproval

of

the

proposed

site

location.

Four

(4)

copies

of

the

record

of

the

public

hearing

shall

also

be

made available to the full County Board in the County Board Office

as

soon

as

said

transcript

becomes

available.

(b)

The County Board shall make a decision based on the

record from the public hearing and review of the recommendatio~’of

the

Committee.

The

decision

of

the

County

Board

shall

be

in

writing,

specifying the reasons for the decision, such reasons to

be

in

conformity

with’

Section,

39.2

(a)

of

the

Act

(415

ILCS

5/39.2(a)).

In granting approval for a site, the County Board may

impose

such

conditions

as

may

be

reasonable

and

necessary

to

accomplish the purposes of the Act and as are not inconsistent with

regulations promulgated by the Illinois Pollution Control Board.

Such decision shall

be

available

for public

inspection

at

the

office of the County Board and may be copied upon payment

of the

actual cost of reproduction.

If there is no final action by the

County Board within one hundred eighty

(180) days after the filing

of

‘the

request

for

site

approval,

the

applicant may

deem

the

request approved.

(C)

Whether the County B.oard approves or disapproves of

the proposed site location,

a Resolution shall be ‘passed to that

effect,

stating the reason(s)

for the decision.

(d)

An applicant may not file a request for local siting

approval which

is

substantially the

same’ as

a request which was

disapproved, pursuant to a finding against the applicant under any

of criteria

(i) through

(ix)

of SECTION 6(d)

above and of Section

39.2(a)

of the

Act,

within the preceding two

(2)

years.

SECTION 8:

ARTICLES OF RULES AND PROCEDURES

The

Committee

shall

establish

Articles

of

Rules

and

Procedures

for

the

application

and

hearing

process

governing

Regional Pollution Control Facilities.

These rules and procedures

must also be followed by any applicant.

Any additional information

or

requirements

mandated

by

said

rules

and procedures

must

be

submitted or followed by said applicant.

10

---

0—9412—1200—88

SECTION 9:

SEVERABILITY CLAUSE

If any section, subsection,

sentence, clause, phrase or

portion

of

this

Ordinance

is

for

any

reason

held

invalid

or

unconstitutional

by

any

court

of

competent

jurisdiction,

such

‘portion

shall

be

deemed

a

separate,

distinct

and

independent

provision and such holding shall not affect the validity

of the

remaining portions hereof.

SECTION 10:

ORDINANCE REPEALED

All

ordinances

or parts

thereof

in

conflict with

the

provisions

of this Ordinance are hereby repealed.

BE IT FURTHER ORDAINED that this amended Ordinance takes

effect on the

20th

day of

December

1994.

L.

DI~NNE L.

KLEMM

Chairman,

McHenry

County

Board

ATTEST:

~

(~A~?’

~KATHERINE

SCHULTZ,

County

Clerk

and

ex

officio

Clerk

of

the McHenry County Board

Voting:

Aye

24

Nay

0

Abstaining

0

Absent

0

11