RECEIVED
1. Pollution Control Board
2. fL~e~S~L~

Q~WNAL

Page 1

1

ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

~‘RK’SOFICE

3  LOWE TRANSFER, INC., and 

)

192003

MARSHALL LOWE,           

STATE OF IWNOIS

Pollution Control Board

Petitioners,

S

vs.

)

No. PCB 03-221

6

)

(Pollution Control

Facility Siting

7  COUNTY BOARD OF McHENRY 

)

Appeal)

COUNTY KANE COUNTY,

8  ILLINOIS,

9

Respondent.

10

11

The REPORT OF PROCEEDINGS before

12 the HONORABLE BRADLEY P. HALLORAN, taken

13 before Mary Ellen Kusibab, Certified

14 shorthand Reporter and Notary Public in and

15 for the County of Cook, State of Illinois, at

16 2109 Crystal Lake Road, Cary, Illinois,

17 commencing at 10:30 a.m. on the 14th day of

18 August, A.D., 2003.

19

20

21

22

23

24

Page 2

1  APPEARANCES:

2

3

ZtJKOWSKI, ROGERS, FLOOD & McARDLE

50 Virginia Street

4

Crystal Lake, Illinois 60014

Phone: (815) 459-2050

5

Fax: (815) 459-9057

BY: MR. DAVID W. McARDLE

6

7

Appeared on behalf of the Petitioners;

8

9

HINSHAW & CULBERTSON

100 Park Avenue

10

Rockford, Illinois 61101

Phone: (815) 490-4906

11

Fax: (815) 490-490.

BY: MR. CHARLES F. HELSTEN,

12

13

Appeared on behalf of the Respondent.

Page 3

1

INDEX

2

PUBLIC   

DIRECT EXAMINATION

3

COMMENT   

BY MR. McARDLE

4  WITNESS

5  HAL RUBEL       

56

61

6  KATHLEEN PARK     

64

72

7  GREG MACKINTOSH    

74

79

8  BETTY POST       

83

9  JOHN McCUE       

88

10 BRIAN

O’SHAUGHNESSY     

93

96

11

DAVE HANSON      

98

102

12

SUZANNE JOHNSON   

103

106

13

STEVE LAMAL     

107

120

14

ROBERT

15 APPLETON       

122

124

16  KAREN PRITCHARD   

127

134

17 ANNA MAE MILLER   

175

177

18

19

20

EXHIBITS

21 PUBLIC COMMENT EXHIBIT         

PAGE

22

No.1                   

73

23

No. 2                           

103

24

No. 3                           

121

Page 4

1

HEARING OFFICER HALLORAN: I will

2  just introduce myself. My name is Bradley

3  Halloran. I’m a hearing officer with the

4  Illinois Pollution Control Board. I’m also

5  assigned to this matter, and it’s Lowe

6  Transfer, Inc., and Marshall Lowe,

7  Petitioners, versus the County Board of

8  McHenry County, Illinois. The corresponding

Pollution Control Board number is 3-221.

10

Can you all hear me in the stands?

11

THE AUDIENCE: Barely.

12

HEARING OFFICER HALLORAN: You

13  can’t? All right. Is that any better?

14

In any event, today is August 14th,

15  the year 2003. It’s approximately 10:40 a.m.

16 I want to state that the Petitioner’s appeal

17 on the grounds that the siting decision below

18 was incorrect and several findings regarding

19 the statutory criteria was against the

20  manifest weight of the evidence. This

21 hearing has been scheduled in accordance with

22  the Illinois Pollution Control Board Act, the

23  Illinois Environmental Protection Act and the

24  Board’s Rules and Procedures. It will be

We do have about

of the public here in the f

and public comment will be

want to stress that it must

be based on 

exclusively

below. In other words, you

and you can testify or give

oath subject to cross-exami

can just stand up here and

50 or so members

orum as we speak,

allowed. But I

pertain and must

on the record

can stand up here

comment under

nation. Or you

state your piece

1  conducted according to 

the procedural rules

2  Section 107.400 and 

101, Subpart F.

Page

12 and public comment and not be 

sworn in and

13 sit back. However, that will be weighed

accordingly by the Board.

And it’s my understanding that the

parties will not have any witnesses today,

and my vision is that there will probably be

a statement by Mr. McArdle and Mr. Helsten,

and that will conclude your case-in-chief.

However if it runs on, I will interrupt

and

because I know all of you have

somewhere else to be. And you can step up

23 and we can start publi

24 to leave.

c comment if you need

Page 6

1

In any event, before I begin, I

2  would like to talk a moment about the Board’s

3  hearing process. First, I think the majority

4  of the people here already know and are

5  familiar with the process. I will not be

6  making the ultimate decision in the case 

7

AUDIENCE MEMBERS: Please adjust

B  your mike.

9

We can’t understand you.

10

We can’t hear you.

11

HEARING OFFICER HALLORAN: Well,

12 you know, this is the best I can do. This is

13  the best that was given me by Cary School

14 District, and I don’t know what else to do.

15

AUDIENCE MEMBERS: Hold it closer.

16

Hold it closer to your mouth.

17

HEARING OFFICER HALLORAN: Okay.

18 Thanks. A show of hands would be great

19  instead of yelling out. It’s rather

20  disruptive.

21

I do want to caution everybody,

22  this hearing is much akin to a trial in

23  Circuit Court, so I would ask the proper

24 decorum. Thank you.

Page 7

1

Again, the Board will review the

2  transcript and the proceedings and the

3  remainder of the record and decide the case.

4  My job is to ensure an orderly hearing and

5  that a clear record is developed so the

6  Pollution Control Board will look at that and

7  decide.

B

After the hearing, the parties will

9  also have an opportunity to submit

10 posthearing briefs. These, too, will be

11  considered by the Board. Public comment is

12  also accepted and also said in the public

13  comment period.

14

With that said, would the

15  Petitioner and Respondents please introduce

16  themselves?

17

MR. McARDLE: My name is David

18 McArdle on behalf of the

19 Petitioner-Applicant.

20

HEARING OFFICER HALLORAN: I think

21 you’re going to have to speak up, because

22 there’s a few people in the bleacher section

23  that can’t hear you. Thank you, Mr. McArdle.

24

MR. McARDLE: Again, my name is

Page 8

1 David NcArdle. I’m the attorney for 

2

HEARING OFFICER HALLORAN: We have

3  a gentleman up there raising his hand.

Yes, sir?

5

AUDIENCE MEMBERS: We can’t hear

6  him. He’s got to put the mike up front.

7  Thank you.

8

HEARING OFFICER HALLORAN: Thank you

9  very much, sir.

10

Mr. McArdle, you heard the

11 gentleman. If you could probably hold the

12 mike like I am 

like an entertainer

13 they’ll probably be hearing a little better.

14

MR. McARDLE: I’m the attorney for

15 the Applicant Petitioner. He’s also present.

16

HEARING OFFICER HALLORAN: Can you

17 all hear that?

18

AUDIENCE MEMBERS: No.

19

HEARING OFFICER HALLORAN: Well, I

20  think speaking are (unintelligible) It has

21 nothing to do with the mike.

22

I think you’ll pretty much have to

23  swallow the mike.

24

Sir, you can also move down. There

Page 9

are plenty of seats in the front

AUDIENCE MEMBERS: 

Nobody can hear

you.

HEARING

OFFICER HALLORAN: 

Mr.

McArdle,

S can you

put your lips close to the mike.

mike?

Can you 

hear me

if I swallow

AUDIENCE MEMBERS:

HEARING OFFICER HALLORAN: We have

Mr. McArdle, 

can you do

11  likewise?

MR. McARDLE:

HEARING OFFICER HALLORAN: I’m sorry?

MR. McARDLE: I introduced myself.

15 David McArdle on behalf of the Applicant

Marshall 

Lowe, Lowe

17 Transfer, Inc., present.

HEARING OFFICER

Mr. Heisten?

MR. HELSTEN: 

Yes. Mr. Hearing

Officer,

Mr. McArdle, good morning.

Chuck Heisten representing the

22 McHenry

County Board

HEARING OFFICER HALLORAN: Thank you,

1

the

Yes.

10 a resounding 

yes.

12

14

Right.

16  the Petitioner on appeal,

18

19

HALLORAN:

21

Mr. Heisten.

Page 10

1

We’ll start with the case~in-chief.

2  Was my vision pretty much accurate,

3  Mr. McArdle, if you need anything where we

4  have no witnesses by the Petitioner and

S  you’ll just be giving a statement and rest

6  upon the record below?

7

MR. McARDLE: Right. By way of

8  just clarification, I want to make sure we’re

9  straight on this. I consider this an

10  argument on appeal to support the manifest

11 weight argument. And if there is any reply

12 by myself at the end of this proceeding, it

13 will be strictly based on whatever anybody

14  said during the hearing and will not be by

15 way of repeating an argument/statement. In

16  other words, I’ll go through what I believe

17  the evidence in the record supports the

18 manifest weight argument as well as my

19  argument, and then I’ll stop, listen to

20 public comment. And if there’s any reply, it

21 will be based strictly on whatever somebody

22  said. It won’t be my argument, so to speak.

23

HEARING OFFICER HALLORAN: Mr. Helsten,

24  you don’t have 

if there’s anything Mr. 

Page 

1

MR. HELSTEN: No. Since 

as

2  Mr. McArdle has aptly stated and represented,

3  we are confined 

based 

upon the contents of

4  his petition to the underlying record, I

5  intend to only to again, as Mr. McArdle,

6  argue what I think the underlying record

7  shows, listen to the public comment and

8  reserve the right, if I may, to possibly make

9  a closing statement again offering further

10  argument on what the public comment may have

11 shed on the significance or meaning of the

12 underlying record.

13

HEARING OFFICER HALLORAN: Mr. McArdle,

14 you may begin.

15

MR. McARDLE: Okay. I would ask

16  the court reporter 

what’s happening here

17  is we don’t use the microphones, she can

18 understand it. If we use them, it’s going to

19 be difficult for her. I want her to

20 understand.

21

So if you don’t understand

22 something, stop; we’ll turn these off.

23

As the Board knows, the standard in

24 this case and the case that I filed on

Page 12

appeal, the Board was to determine whether

the County Board’s decision was against the

manifest weight of the evidence. The

decision is against the manifest weight of

the evidence if the opposite result is

clearly evident, plain or indisputable from a

review of evidence. That’s the McClain

County disposal case, 207 Ill. App. 3d 2352.

I cite that in my brief, and I will give more

detail on the standard. But we all

understand that’s the 

issue 

before the Board

in this proceeding.

Need is not an 

issue 

on appeal.

The County Board revealed the solid waste

plans some 13 years ago that the County was

badly in need of handling solid waste.

Landfill attempts to site back ten, 15 years

ago all failed.

solid waste field

years. And Lowe’s

a transfer station

The County, in its

advocates transfer

privately held and

Nothing has happened in the

in McHenry County in ten

is the first applicant for

in this particular County.

solid waste plan,

stations that are

in the populated portion

Page 13

1  of McHenry County.

2  stations work. They

3  areas. You need a s

port

his

ions,

appli

to design

man named

expertise

Mr. Lowe

potential

surrounding

site to be

first site

which is what

cation.

He hired the

his proposed

Keith Gordon.

as testified

spared no expe

or perceived

property

located in

handling 

s

station, this i

populated porti

and in this md

unused parcels

portion of the

s the

on of

ustri

down

Coun

Now, the

Board followed ten

Nine of those days

very extensive 4,00

than 100 exhibits.

That’s where transfer

don’t work on lower

ite that’s populated an

Mr. Lowe proposes in

most qualified people

transfer station 

a

Although his

to and in his resume,

nse in minimizing any

adverse impact on

values.

Mdllenry

olid waste

If there was a

County for the

by a transfer

one. It’s in a

the County, surrounded

al zone property and

in the unincorporated

ty.

decision by the

full days of evi

were 12-hour day

0 page transcrip

The record was

County

dence.

It’s

t, more

closed on

a

April 15th,

on May 6th.

County Board

4,000 pages.

the resolution

of the criteria

design and loca

meeting for 30

deliberation by

review that day

47 pages long,

attorneys, Mr.

in a very quiet

looking at thei

discussion, no

deliberation.

County made its

of

dopt

finding Lowe not meeting three

designed 

relating to

tion. During that one time

minutes, there was no

the Board. This Board should

‘s proceedings, which is some

primarily governed by its

Helsten, directing the Board

session with Board Members

r shoes. There was no

conversation. There’s no

There’s to indication why the

decision. There’s no

is

and the County

So from Nay 1

had not consi

One copy was

to the

Board

for 30

Page i4

make its decision

5th to May 6th, the

dered the record of

made. Duplicate

County Board

Members 

24

minutes to a

copies were not made

Members. The County

them 

met one time

21 discussion about credibility of witnesses.

22 There’s no findings of fact. All we have

23  the proposed resolution that was passed by

24 the County Board consisting of strictly

Page 15

1  conclus

2  copies

3  was not

4  two- or

5  record c

and they

7  day they

8  discuss,

Board’s

10  the site

objections b

surrounding

development

evidence.

review the

my suspicion

ythevi

resident

,andit

And Iwo

evidence

question is if

4,000 pages

ions of law.

of the trans

So the

cript 

provided to 24 members during that

three-week period between when the

losed and when the decision was made

never met to discuss it, and on the

met for 30 minutes, they didn’t

what’s the basis of the County

decision? I submit that the reason

was rejected was because of local

liage of Cary and

s in the Bright Oaks

was not based on the

uld ask that this Board

very carefully to confirm

During the hearings, the ten days’

of evidence that was received by the

committee and public comment before the

Board, audience members did participate.

There were a total of 81 oral comments,

including attorneys. That number, out of

280,000 residents in the County, represents

less than one half of one percent that came

Page )6

1  and objected to the hearings or at least made

2  comments at the hearings. I suggested that’s

3  a very nominal objection made in the County

4  for a County-wide transfer station, and that

5  should be taken into consideration by the

Board.

7

The adjoining city of Crystal Lake

to which this proposal is on it’s southeast

9  gateway, never objected, never came to the

10 proceeding, never passed any sort of

11  resolution one way or the other. Crystal

12  Lake has a tremendous interest in this, just

13 as the village of carry does, and the Board

14  should consider that.

15

Now, there’s four issues that I

16  raise in my petition. The issue relating to

17  real estate Criteria 3 

the location; the

18 issue relating to design and fire, which is

19  criteria 2 and 5; the unnumbered criteria and

20 the imposition of a fee as a condition. I’ll

21  take those one at a time.

22

The first one 

location,

23  Criteria 3. As you know, the criteria states

24  that the facility must be located so as to

Page 17

1  minimize incompatibility with Cary and the

2  surrounding area and minimize the effect had

3  on values on the surrounding property. By

4  definition, as I meant to indicate, the

5  transfer station must be sited in the

6  populated portion of the County. Otherwise,

7  it makes no sense, and it will never be

8  sited, because that’s where the garbage is

9  created. That’s where the waste has to be

10 removed from in order to make it economically

11 viable. The County staff supported the

12  McHenry County Board recommended approval of

13  this criteria. The Board should consider

14 that. The evidence that, I believe,

15  indicates it’s plain and clear that the

16  location is sited so as to minimize the

17 impact on neighbors is the following: We

18 have our extensive landscaping plan that’s

19  incorporated with the application surrounding

20  the site. That landscaping plan was designed

21 in conjunction with the McHenry County

22 Conservation District. A large property

23  owner of the conservation area to the west

24 and to the north before the application was

Page IS

1  filed.

2

There’s two structures on the

proposed site. One is the existing concrete

4  block building to the northwest, and the

5  other is the proposed facility itself, which

will be a concrete structure to the due east

7  on the site. Those two structures provide

8  for blockage of noise, view and wind to

both 

1200 feet to the east, clearly, and

10  to the McHenry County Conservation District

11  to the west and to the northwest. Both of

12  those building provide interior surfaces in

13  detail.

14

There’s a 1400-foot buffer from

15 Bright Oaks, which is a gaping hole created

16  by the mining company that grafted it out.

17  I’m not sure of the depth. I think it’s 80

18 or 90 feet deep, and it’s anywhere from four

19 to 1800 feet wide. And the separation to the

20 east between the subject property and Bright

21 Oaks multifamily development.

22

There’s industrial zoning and uses

23  on-site and adjacent, and that will be

24 detailed in the brief as well. This

Page 19

1  particular site is zoned heaviest industrial

2  zoning in the County called 1-2 heavy

industry. I’ll go through those in a bit.

4  The parcel immediately to the south and the

S  parcel immediately to the southwest are also

6  zoned heavy industrial 1-2 in the County and

7  actually used as heavy industrial uses. The

8  parcel to the south is an asphalt and

concrete crushing facility that’s been in use

10  compatibly with the McHenry County

11  Conservation District for years. There was

12  testimony in the record that no evidence has

13  ever been filed by the Conservation District

14  as to the crushing and trucking operation at

15  that facility. And then immediately to the

16  southeast of the facility is the Welch

17 Company that manufacturers concrete pipe and

18 stores pipes 

concrete pipes for

19 distribution at a later date. And as far as

20  I know, there’s been no testimony regarding

21  any objection to that.

22

The gravel pit that’s being

23  reclaimed to the east that I mentioned was

24  the separation between the site and Bright

Page 20

1  Oaks. It is zoned light industrial 

I-i

2  it’s called in the County 

at the time of

3  filing my petition. When I filed my

4  application, at the time, this matter was

5  heard by the Board, it was zoned I-i, light

6  industrial, with no for to gravel pit and is

now a completed process in the County. The

8  parcel to the immediate north and northwest

which is owned by the McHenry County

10 Conservation District is also zoned the

11 heaviest industrial zoning in the County 1-2.

12 And as I indicated is used by the

13  Conservation District as an open space

14 conservation area and has been for years.

15

The site has access 

direct

16 access 

to State Route 14. It’s a Class 1

17 highways, 80 thousand pounds more than 

18 between 20 and 30,000 cars travel it every

19 day as testified to. As far as queuing is

20 concerned for the 600 ton per day proposed

21  transfer station, it was testified there were

22 18 to 24 spaces provided for the stacking of

23  collection trucks carrying them into the

24  site. He has below grade loading to, again,

Page 21

1  provide sound and noise insulation for the

2  transfer trailers as they’re being loaded.

3

It should also be noted as far as

4  the location is concerned that the gravel pit

S  that was there made some maneuvers during

this proceeding to annex the property to the

7  village of Cary, and that’s all in the

8  record. The annexation petition was filed in

9  February, and it was annexed after the

10 proceeding. That all happened after the

11 application was filed. When the application

12 was filed on November 20th last year, that

13  site was, as I indicated, 1-1 and being

14 reclaimed as a gravel pit in the County.

15

The Bright Oaks development, which

16 are the multifamily development, is 12 to

17  1400 feet east of this proposed site

18 preexisted the gravel mine that was being 

19 that preexisted the McHenry County

20 Conservation area. Bright Oaks moved their

21  development to that site knowing that that

22  site was being mined and not knowing that it

23 was going to be owned by the McHenry County

24  Conservation District. It moved to that site

Page 22

1  knowing the asphalt and concrete crushing

2  operation was in existence and knowing that

3  welch Drywell Pipe business was heavy

4  industrial use. And it moved there knowing

5  all of those were 1-2 uses.

6

Now, I brought with me Exhibit

7  15 

or a summary of Exhibit 15 for

8  demonstration purposes that I’ll show you.

9  Exhibit 15 is the McHenry County Zoning

10 Ordinance, and in that zoning ordinance, it

11  indicates permitted uses 

not conditions,

12 but permitted uses in the 1-2 industrial use

13  categories. That would include the MCCD

14 acreage; the proposed site is 1-2; the site

15  immediately to the south, which is the

16  asphalt and concrete recycling facility and

17  the Welch facility for pipe manufacturing

18  facility.

19

In addition to those uses, there’s

20 a list of permitted uses that any of those

21 parcels can go to the County today and get a

22  building permit, so long as they put up a

23  six-foot fence and they meet the industrial

24  use regulations of that particular zoning

Page 23

1  classification. And these uses are very

2  offensive. And the point of these uses 

3  I’ve indicated this to the Board, and I’ll

4  list them 

permanent asphalt concrete

5  facility, meat packing plant, rendering

6  plant, processing facility for the recycling

7  of the slaughterhouse, wrecking yard, grain

8  elevator and the processing of stored coal

9  clay coke and tire products, fertilizer

10 products, smelting, rubber, stone, asphalt,

11  sawmill, welding and a trucking terminal.

12

The reason I indicate that is

13  because when Bright Oaks moved to this

14  facility, they knew that the proposed site

15  and the surrounding sites to the south and

16  southeast and NcHenry County Conservation

17 area could only be used for this heavy

18  industrial use. And we know based on the

19  record that a transfer facility is nothing

20  but a trucking facility, and it’s

21 indicated 

it’s designated as being a light

22  industrial use by the U.S. EPA in its

23  documents that was submitted to the Board.

24

As far as real estate is further

Page 24

1  considered, there was a lot of discussion

2  about the Northbrook transfer station and its

3  comparability with this particular site

4  because, ironically, there’s a high-end

5  multifamily development 200 feet away from

6  the Northbrook transfer station that seems to

7  be doing fine. And what I did by way of

8  evidence is there were two 

there were two

9  letters that I requested for two significant

10 owners of the property in the Northbrook area

11  that I read into the record, and I would like

12  to read portions of those letters in relation

13 to this particular category. When it comes

14 to relevance of the Northbrook transfer

15 station, really the only distinction between

16 that facility and the proposed facility is

17 the proximity 

it’s much closer to Bright

18  Oaks 

to the facility. And there’s a

19 railroad track northwest. He had a railroad

20 track on this site, but it’s probably a

21 thousand feet to the south. The Northbrook

22 transfer station 

railroad facility is

23  within that 200 feet. It’s between the

24  Northbrook facility and the residents of the

Page

1 Princeton Village Homeowner’s Association,

2  which is the condo association in Northbrook.

3  Other than that, it’s remarkably 

it’s

4  remarkable.

So 1111 read a portion of the two

letters for the Board’s benefit. And this

7  appears as C191, pages 42 through 45. And

8  I’m only going to read the excerpts. A full

version of this first letter is excepted on

10  this page. But the first letter is from

1.   John E. Crawford, who states the following:

12

I’m a resident of Princeton

13

Village Homeowner’s Association as

14

well as a trustee on the Glenview

15

Village Board. Our subdivision has

16

194 homes including four-unit

17

buildings and town homes. The homes

18

range from 300,000 to $600,000 in

19

value. I have no financial

20

interest in (unintelligible) and I

21

have no interest in (unintelligible)

22

He indicates. Now, I’ll go to the end:

23

“The transfer station next to

24

us was established in the early

Page 26

1

eighties before construction of our

2

development in the early nineties.

3

It operates on a small site on

4

Shermer Road north and adjacent to

5

the southeast corner of our

property, adjacent on the elevated

railroad right-of-way owned by

8

Union Pacific 

along 

with the

Northwest Railroad. It’s a

10

double-decked (unintelligible) 200

11

feet right-of-way was built. This

12

elevated right-of-way is the only

13

property separating Princeton

14

Village from the transfer facility

15

and providing adequate screening

16

from our homes along Princeton Lake

17

and the southeast corner.

18

Princeton Village was approved

19

by the Glenview Planning Commission

20

and the Village Board 12 years ago.

21.

The village did not find the

22

creation of our subdivision to be

23

incompatible with the operation of

24

the transfer station. Our

Page 27

1

subdivision has many residents,

2

including me, who has been here

3

from the very beginning. And the

4

value of our homes has increased

5

constantly over the years. We’ve

6

had many contacts with real estate

7

agents concerning this (unintelligible)

8

I have heard no adverse comments

9

concerning the facility. Yours

10

truly.

11

The second letter is from a William

12 Bashkin 

B-a--s-h-k-i-n. He wrote about

13 he’s an appraiser in Glenview. And he

14  indicates the following:

15

“I moved to my house 

my

16

home 

two years 

ago. I lived at

17

the

corner of Princeton Lane and

18

Yale Court. My unit is on the

19

second floor, the one in the

20

Village closest to the transfer

21

station. I can go out of my home

22

office and see the trucks carrying

23

the site. There’s been almost no

24

impact to our subdivision because

Page 28

estate,

the vil

Oaks, I

of the operations

transfer station.

appraiser,

evaluating

values. Al

our subdivi

maintained

And, in fac

each year.

discussions

of the waste

I’m an

so I have experienced

fluctuations in property

1 of the properties in

sion have consistently

their property value.

t,

values 

have increased

In my work as well as

with other residents of

slight

of homes

the western

side of the

Princeton Village, the

increase in the value

between the homes on

side and the eastern

subdivision is directly

attributable to the location of the

railroad tracks and not to the uses

east of the railroad tracks.

Sincerely yours.

for my

todo

Cary,

Now,

it has

lage of

last point on

with a witness

Mr. Whitney 

‘m sorry.

Mr. Whitney testified to one

real

called by

Bright

1  question as follows. This

2  Volume C220, pages 80 and

3  question asked by Anne Kay.

member of the County Board,

S  following question:

Page 29

was a question on

81. This is a

Anne Kay is a

and she asked the

Mine may be as screwy as his,

but let’s take a hypothetical here.

Bright Oaks has a grocery store

strip mall shopping center with

fast food restaurants not too far

away. It has an extremely busy

Highway 14 not too far away. And

at one time, it had gravel on it.

There’s industry around. There is

a railroad track nearby. Would a

transfer station make that much

difference if it went in?

Here’s Mr. Whitney’s answer:

“Without having done a proper

study on the effect of surrounding

property values, I really couldn’t

responsibly answer your questions.

I don’t have an opinion until I do

that type of analysis.”

Page 30

1

This is their expert on the 

issue

2  of Criterion 3 

---

the values of surrounding

properties. Saying he doesn’t have an

opinion. He hasn’t done a study. That’s

S

a  completely negates his testimony 

as

an

6  expert and a witness for Bright Oaks. And

I’ll object because he’s the only witness on

8  the other side. That’s all I have on

Criteria 3.

10

Criteria 2 and 5, these criteria,

11

they tend to go together based on their

12  standards. Criterion 2 indicates the

13  facility must be so designed proposed to be

14  operating that the public health, safety and

15

welfare will be protected. Criterion S

16  indicates the plan of operations for the

17 facility must be so designed as to minimize

18  the danger to the surrounding area from fire,

19  spills or other operational accidents.

20

Now, as far as the interpretation

21 of these, I once cited each that I’ll go

22  further into in my brief. Criterion 2, which

23  doesn’t have the minimized language, requires

24  a demonstration that the proposed facility

Page 31

1  does not pose an unacceptable risk to the

2  public health, safety and welfare. It does

3  not require a guarantee against any risk or

4  problem. That’s Industrial Fuel 227 Ill.

5  App. 3d 5383 and the File 

F—i--l-e 

case,

219 Ill. App. 3d 897.

7

Criterion 

S

requires

(unintelligible) only 

not elimination of

any problems, because it is virtually

impossible to guarantee that no absence will

occur. It does not allow rejection of a site

based only on the existence of 

a

danger.

Rather, it requires approval if the facility

is designed to minim

the Wabash case 198

Watts Turley case,

as with Criterion 3,

recommended approval

as well 

2 and S.

Now, I

went out

ize

Ill.

PCB8

the

of

indicat

to hire

the danger

App.

3d 3

3-167. I

County st

these two

ed at the

the best.

That

and

dn

‘S

the

ote

88,

woul

aff

criterion

beginning

Inmy

opinion, based on the resumes that are in and

the testimony that was given, Keith Gordon is

21  that we

22

23

24

by far the best. He literally wrote the book

Page 32

1  on landfill transfer design stations,

designing

editor and

regard to

a manual f

principal

in Illinoi

Planning,

document

County So

education

trainer of

certification.

S

Si

was

lid

do

of those facilities. He’s the

technical advisor to the EPA with

the solid waste transfer station 

or making decisions. He’s the

author of the Solid Waste Transfer

and Citizen’s Handbook for

ting and Technology. This

commissioned by the DuPage

Waste Department and public

cument. He’s a project manager

tion of the solid

design guy for the

America, SWANAS.

ief with regard to

on management

‘s also the senior

12 with

13 waste

regard to

transfer

the

stat

prepara

ion

Waste Management of

And he’s the editor-

the SWANAS transfer

certification manual

the SWANA

North

in-ch

stati

He

course for that

exhib

andl

it I

did

23

24

Now, the only 

other demonstrative

‘d like to go through 

quickly is 

this in my closing argument before

the Co

behalf

unty Board. The witness called on

of the objectors 

in this case 

I

Page 33

by Waste Management in

in Kane County that

Nickodem

he designed

rted that

the design by

Gordon

but exceeded i

it’s worth goi

Nickodem’ s

supported is

1  believe it was the village of Cary 

they

2  called Andrew Nickodem. And, of course, we

3  had Keith Gordon. Now, I understand the law

4  with regard to reweighing evidence, and

5  that’s not what I’m suggesting at all needs

6  to be done in this case. What I’m suggesting

7  to the Board is that the evidence completely

8  supports our side. And according to the

standard is plain. Even when you look at

10 Mr. Nickodem’s testimony and his experience

11  that he testified to during the proceedings.

12

Now, Mr. Nickodem was the principal

13 engineer 

the design engineer 

for the

14 Woodland application

Woodland proceeding

Board is well aware of. Mr

ified extensively as to how

facility, because he suppo

gn. And in many respects

Lowe and, of course, Mr.

lleled not only Woodland

think for that purpose,

ugh a rundown of how Mr.

gn for Woodland that he

the

this

test

that

des i

Mr.

para

Sol

thro

desi

t.

ng

the

Page 34

1  same as Lowe’s and how Mr. Lowe’s design

2  exceeds Woodland and Mr. Nickodem supported

3  it. He agreed that those design parameters

4  that exceeded the Woodland facility by

S  Mr. Lowe were supporting the mitigation

factor of Criteria 5 and supported a better

design in Criteria 3. And I’ll go through

8  that testimony with you.

Now, as far as the similarities

10 between the Woodland facility and the Lowe

11  facility, Mr. Nickodem testified as follows:

12 He testified that in both proceedings, there

13 was a residence in Woodland and, of course,

14  the Bright Oaks residents here 

13 to

15

1400

feet away. So he was designing this

16  facility to accommodate or deal with those

17  residents 

homeowners. He aligned his

18 buildings in the Woodlands in such a way to

19 block the prevailing wind to that particular

20  resident. And in Lowe’s situation, as I

21 indicated, the exact same thing is done.

22  This facility that we’re building, not the

23  existing one. The new concrete structure

24 will be separating the activities on the

Page 35

tipping floor from the Bright Oaks facility.

Mr. Nickodem testified that his

design was adjacent to a conservation path in

an industrial area. And, of course, in our

case, we’re adjacent to industrial sites to

the south and southeast and the McHenry

County Conservation District to the west.

His design in Woodland provided for

the daily removal of waste from the floor of

the facility, as does Lowe. And that, of

course, prevents the potentials for insects

and the cleanliness of it. He suggested in

his plan for Woodland that he was going to

seal expansion joints on the tipping floor,

and we’re doing that as well. The tipping

floor slopes to the drains to prevent the

accumulation of water on the tipping floor,

and that’s done in the Lowe design by

Mr. Gordon. Mr. Nickodem testified that

there was no quantification in his

application for noise generated at the site,

and there was some criticism of our testimony

because there was to quantification. And so

that was the same in both proceedings that he

Page 36

1  supported.

2

There were no misters at either

3  site. There was some discussion about

4  whether or not the tipping floor should have

5  a scented mist, and there was no design in

the Woodland facility because of some

7  hazardous situations that might occur that

8  was testified to in this litigation as well.

9

There was no public recycling in

10  either site, and both were operated on a

11  septic system. So those are the similarities

12  between Mr. Nickodem’s design that he

13  supported and Mr. Lowe’s that he’s apparently

14  objecting to.

15

Now, over and above that are the

16  design criteria installed by Mr. Gordon to

17  exceed what was happening at Woodland and to

18  exceed the standard design and what we call,

19  actually, state of art in some respects.

20  First of all, the difference between the two

21 facilities, Woodland was a much larger

22  facility. It was suggesting a proposed site

23  to handle anywhere from 2,000 to 2600 tons

24  per day. The Lowe site was proposing 600

Page 37

1  tons per day. So it’s a smaller site, yet

2  the queuing 

the queuing of the Woodland

3  facility was between six and eight collection

4  trucks. And Lowe at a much smaller facility

5  was queuing up to 24 collection trucks.

Working hours. The working hours

7  at the Woodland facility were 20 hours a day,

and Mr. Lowe is suggesting ten hours a day

more toward the working day to, again, keep

10  the noise levels down during the nonworking

11  hours. The groundwater monitoring wells were

12 provided by Mr. Lowe adjacent and in

13  coordination with the conservation district,

14  and no groundwater monitoring wells were

15 provided in the Woodland facility.

16

Concrete structure was being

17 proposed by the Lowe in order to reduce the

18  noise, keep the smells in better and just a

19  better appearance from the outside, whereas a

20  metal building was being proposed at the

21 Woodland facility.

22

As far as fueling the trucks, the

23  Woodland facility was fueling those outside

24  over unprotected areas as far as going into

Page 38

1  the contact water system inside the tipping

2  floor. They would have been running directly

3  into their 

whatever storm system they had

4  on the asphalt outside. If there was a

5  spill, Lowe was suggesting 

proposing

6  fueling his inside over the contact water

7  system so any spills would go into a contact

8  tank that would be protected. And all of

these factors Mr. Nickodem testified were

10  advantages. Carbon filters were proposed by

11  Lowe on the ventilation system to reduce the

12  smells. That was not provided for in the

13 Woodland facility. No overnight waste was

14  being represented by the Lowe proposal.

15  There will be no storage inside or outside.

16 All trailers full will be removed from the

17  site. On the other hand, in Woodland, they

18  were storing those inside and outside. They

19  might have just been inside the facility

20  overnight. But, clearly, that was a

21  distinction.

22

Radiation detection was being

23 provided by Lowe. None was being provided by

24 Woodland. Random load inspections were being

Page 39

he testified

never been

ity in the

Indoor

of. Indoor tarp

provided for to, aga

reduce the potential

safety to the workers.

for by Woodland.

proposed by Lowe; none was provided by

Woodland. Lowe was providing for a

geomembrane liner similar to under landfill

under the tipping floor entirely to provide

further insulation to groundwater. That was

advocated or supported by Mr. Nickodem as

being an additional measure of protection.

And that was not provided for in Woodland.

And

not

to his knowledge,

it’s      

provided for in any transfer

facil      

state of Illinois.

tarping is another unheard

ing by Mr. Lowe was being

in, cover the activity,

for blowing litter and

That was not provided

We also had the indoor scale

facility which was the separate facility to

the northwest portion of the site. That was

not provided for in the Woodland facility.

That again provides for protection of blowing

waste, securing the screens over the trailers

to make sure they’re covered properly and

Page 40

indicated

transfer

provided

trailers

forward,

was being

with 

that

access to

Woodland

particul

to

Route

height ii

ar

25,

mit

So

there are at

refer to as

and

of the

not

ransfer

moving

which

Mr.

some

Mr. Nickodem agreed

we have direct

14 Highway. And

s to that

It had access

limitations and

general safety of the workers.

We have below grade loading

that was from soundproof ing

trailer activity. That was

for in Woodland, where the t

on our proposed site are 

all

which is safer than reverse,

provided for by Woodland.

HEARING OFFICER HALLORAN:

pleas speak up, please. We’ve got

hands.

McArdle,

MR. McARDLE:

and we 

lastly,

the Class 1 Route

oes not have acces

type of highways

which had low

at ions.

what we’re suggesting here,

least seven areas of what I

HEARING OFFICER HALLORAN:

me, Mr. McArdle.

Yes, sir?

Excuse

Page 41

1

MR. APPLETON: Can you hear me?

2

HEARING OFFICER HALLORAN: Yes, sir.

3

MR. APPLETON: Nobody can

4  understand what’s going on.

5

HEARING OFFICER HALLORAN: Okay.

6  At the top of the hearing, sir, I said if

7  anybody can’t hear, raise your hand. And the

B people to the left just raised their hand

9  (unintelligible) 

The hearing 

so just

10 raise your hand. So nobody can hear now in

11  the middle row?

12

MR. APPLETON: The problem is not

13  the way they’re talking. It1s that the

14 acoustics in this room are terrible. Now,

15 why don’t you sit 

the presenter sit here

16 and you sit there and forget about the

17 microphone.

18

HEARING OFFICER HALLORAN: Well, I

19  think 

can you hear me now, sir?

20

MR. APPLETON: Yes.

21

HEARING OFFICER HALLORAN: Okay.

22 Remember when I was asking Mr. McArdle to

23 hold the microphone up to his lips so the

24 people in the bleachers can hear him.

Page 42

1

MR. APPLETON: But it’s acoustics

2  that’s the problem.

3

HEARING OFFICER HALLORAN: You can

4  hear me now, sir; is that correct?

5

MR. APPLETON: I can hear every

word. I just can’t understand.

Is that correct?

8

AUDIENCE MEMBERS: Correct.

MR. APPLETON: How many people

10 would like them to move closer and forget

11  about the microphone?

12

(Whereupon, the audience

13

members clapped in

14

agreement.)

15

MR. APPLETON: This is a shame. We

16  can’t understand what people are talking

17  about.

18

HEARING OFFICER HALLORAN: Sir,

19 sir, I had asked you at the top  the whole

20 audience 

at the top of the hearing, if you

21 cannot hear, raise your hand. I’ve sat here

22 for approximately 30, 40 minutes, and this is

23  the first hand I’ve seen.

24

MR. APPLETON: Because you didn’t

Page 43

is not a matter

matter of it’s

this room. We

understand.

I’m assured by the Villag

District that the acousti

and this is a great place

with that said 

yes, ma

AUDIENCE MEMBER:

‘s not the first

has made.

HEARING OFFICER

any event, what we’ll try

suggest,

I ‘ye

minutes.

is saying

It’s a

the size of

We’ll stop the

move up. However,

e of Cary School

cs (unintelligible)

for a hearing. So

am?

es and

can hear.

1  look.

been monit

2

3

S

HEARING OFFICER HALLORAN:

oring here for the last 40

Yes, ma’am?

AUDIENCE MEMBER: What he

of we can’t hear.

garbled because of

can hear, but we can’t

10

HEARING OFFICER HALLORAN:

That might be all

proceedings right

Okay.

clear.

now and

to say it

district

I was

mistake

just going

the school

I’m going

HALLORAN: But in

to do, as you

to go ahead and suspend

23  the hearing for the next five minut

24  we’ll move up and see if everybody

Page 44

1

AUDIENCE MEMBERS: Thank you.

(A short break was had.)

3

HEARING OFFICER HALLORAN: All

right. We’re back on the record.

5

I think Mr. McArdle was starting

his Criteria 8 argument.

7

Is that correct?

8

MR. McARDLE: I’m sorry. I had

somebody talking in my ear.

10

HEARING OFFICER HALLORAN: Okay.

11 We’re back on the record now. We took

12 approximately 12 minutes to relocate. We’re

13 not using the mikes now pursuant to the

14 request of the public here, which  I’m

15 never any good at this  probably 50 to 75

16 people.

17

But in any event, Mr. McArdle, you

18  still have the floor.

19

MR. McARDLE: Thank you. And I’m

20 almost done.

21

So the question becomes with regard

22  to Criteria 2 and 5 is whether we can prove,

23 based on the record, that it’s clearly

24 evident, plain or indisputable using the

Page 45

health,

suggest

Mr. Nic

the des

state of the art facil

Mr. Nickodem’s own des

show clearly that the

standard. And those e

concrete

to metal

monitoring wells

lane, the indoor

the segregated f

into here 

and

tunnel. All of

matters that the

exceed the standa

stations in this

ities that exceeded

ign that he advocated

design meets that

ight again are the

as opposed

the

5 and the

discussion

standard  clearly plain, evident or

indisputable that the design works 

that

the design is there to protect the public’s

safety and welfare. And I’m

ing and I’m arguing that based on

kodem’s testimony himself, as well as

ign by Mr. Gordon, that the eight

facility, the concrete 

the geomembrane liner,

the stacking or queuing

tarping, the indoor scales,

ire pit 

which I’ll get

the underground loading

those eight issues are

Board should consider that

rd of designing transfer

day and age. And for that

22  reason, we meet that standard.

23

Now, as far as Criterion

24  fire design, there wasn’t a lot of

Page 46

1  about this at the hearing. But what we did

2  in our application and the testimony shows is

3  that the Cary Fire Protection District

4  supported the design that we had for

5  controlling and designing the fire concerns

6  of a transfer facility, specifically, we had

7  a segregated fire pit outside. That, again,

S  is unusual, but supported and recommended by

9  the Cary Fire Protection District so that if

10  there were any hot loads inside on the

11  tipping floor, they would simply be pushed

12 outside into the containment area and taken

13 care of.

14

There was testimony regarding

15  sprinkler systems. Mr. Nickodem testified

16  that sprinkler systems are not the standard

17  in the industry for transfer station

18  facilities. And there is no waste being

19  stored overnight, and he indicated that

lowers the risk of any potential fire that

21 could occur in the facility, of course,

22 because there’s nothing in it.

23

Now I’ll move on to the unnumbered

24  criteria. The County Board may also consider

Page 47

1

as evidence the previous operating experience

2

and past record of convictions or admissions

3  or violations of the applicant in the field

4  of solid waste management when considering

5  Criterias 2 and 5. And in their conclusion

resolution, the County Board indicated it did

consider that. It didn’t indicate how it

considered it. It didn’t indicate whether it

was considering the experience or whether it

felt there was some record of violation

11

whatever.

But the record is perfectly

clear.

12 The testimony is perfectly clear and

13

indisputable

- -

HEARING OFFICER HALLORAN:

Mr. McArdle,

obviously

You

know, maybe if you move over

here and take my suggestion and move over to

18

the

center more.

There’s plenty of room over

here, and maybe that will help.

You know,

I’m not sure what else to do.

Yes, sir?

You in the striped

22  shirt.

23

AUDIENCE MEMBER: He could talk

24

louder.

I’m sorry, but he’s not talking loud

Page 48

1

enough.

2

HEARING OFFICER HALLORAN: 

Mr. McArdle,

3  could you please keep your voice up, please?

MR. McARDLE: You know, I do this

5  every day, and that’s the voice I use for

6  people that are 12 

12 people standing ten

feet away or anybody in the audience in a

8  courtroom. This is my voice. I don’t know

what you want me to do, sir.

I have no idea

10

what you want me to do.

11

HEARING OFFICER HALLORAN: 

Just try

12  to keep your voice up.

13

Excuse me, sir.

14

Just try to keep your voice up,

15  Mr. McArdle.

16

Other than that, you’re going to

17 have to move up and over.

18

MR. McARDLE: Okay.

19

The record is clear that Mr. Lowe

20

has no operating

experience.

He doesn’t have

21 bad experience; he has no operating

experience of transfer station facilities.

23 The record is plenty full as to his

24  experience with hauling, trucking, loading

concrete crushing facility

this his whole life. He’s

material in trucks the way

about this trucking operat

The record is replete with

unimpeached as far as any

much less in the sol

So if the

considering no exper

do

it didn’t say,

id was

County

ience

hey,

so we think yo

It just said we

y’re considering

Page 49

He owns the asphalt

He’s been doing

been transporting

we’re talking

ion his whole life.

experience that’s

kind of violation,

te field.

Board is

which it didn’t

you have no

u don’t meet this

considered it.

no experience as

1  heavy loads of material.

3

10

1-

12

13

14

experience

cri

But

teria.

if the                  

a

bad thing, Mr. Nickodem testified that in his

Woodland facility, they were going to hire

experienced operators and qualified managers.

And as did in this proceeding, Mr. Gordan and

Mr. Lowe both testified and their application

represents that we intend to hire those

particular personnel that are qualified to

operate the facility, certified under the

SWANAS training course and to have taken that

course, read the manual, then trained

Page 50

1  Mr. Gordon will be involved in that process.

2  All that’s been testified to. And,

3  certainly, there’s no cases indicating no

4  experience means you don’t qualify. That is

not what the law provides. It says you

6  consider previous operating experience. And

that’s that aspect of it.

8

As far as past record of

9  convictions or admissions in this field,

10  there are none. There are absolutely zero in

11  the record of any violations. All there is

12  is a bunch of questioning of Mr. Lowe as to

13  how he conducts other aspects of his life in

14 his excavation field, in his concrete

15  crushing field and so forth. But there have

16  been absolutely no violations in this record.

17 And so the unnumbered criteria is irrelevant.

18

The last issue to discuss is the

19  imposition of the fee as a condition. The

20  law provides an imposition of a fee is not a

21 reasonable and necessary condition in order

22 to accomplish the purposes of Section 39.2.

23 To extend Section 39.2 to allow the

24  imposition of a fee would go beyond the

Page 

1  confines of the statute. That’s County of

2  Lake, 120 Ill. App. 3d 89, and E.E. Hauling,

629 Fedsupp. 973. And so our position on

this is the fee is not allowed under Illinois

5  law to impose this condition. And because

6 we’re non-Home Rule, they further don’t have

that authority.

8

And for those reasons, we’re asking

9  for the Board to reverse the County Board’s

10 proceeding.

11

HEARING OFFICER HALLORAN: Thank you,

12  Mr. McArdle.

13

Mr. Helsten, I can’t remember if

14 you wanted to give, I guess, a quasi opening,

15 and, if so, how long? Because I know there’s

16 at least one member of the public here that

17 wanted to read something into the record, and

18 he had to be out of here, I think, by noon.

19

MR. HELSTEN: Can you all hear me?

20

THE AUDIENCE: Yes.

21

MR. HELSTEN: I’d rather, as the

22 famous stand-up comedian said, work without a

23 mike if possible. I think I would probably,

24 in rebuttal to what Mr. McArdle has raised

6  it.

7

HEARING

Very well. And I

order 

the Augu

motion in limine

response made.

limine in part

the bottom line

can be completed

record, the heari

do

St

fi

And

and

is

wi

ng officer may

oral statements

of Section 101.6

hat said, I did

and the

ten citi

want to

ess I sho

limit

cons ±

28 (a)

have a sign

last time I

zens signed

make public

uld qualify

and make

and it will

Page 52

1  and Mr. Halloran, have about 30 to 35 minutes

2  of comments. That being the case and to

3  accommodate the public, I would suggest we

4  take the public comment out of order of the

5  person who has only limited time to attend

OFFICER HALLORAN: Okay.

want to read the

7th order. There was a

led by the Petitioner and

they denied the motion in

granted it in part. And

to ensure that

th a clear and

the

conc

time

with

hearing

i se

allowed

provisi

Wi

for

ons

tht

the

stent

up sheet

looked,

up. How

comment

at the podium,

was about

people do

And Igu

there

many

here?

that

publ

with you can s

ic comment not

tand up here

under oath,       

be

Page 53

and!

the

in.

that

was

had

cons

St ep

1  weighed accordingly. However, if you do

2  decide to make a statement, it will be under

3  oath and subject to cross-examination. If

4  you choose to submit written statements, you

5  must be able to be cross-examined and under

oath. However, if you just submit a written

7  statement without being under oath, it will

be considered and treated as a public

comment.

10

With that said, any public comment

11

or statement, testimony must pertain to

12

record below. No new evidence may come

13

It’s confined exclusively on the record

14

was made below.

15

Now, with that said, I think there

16

a gentleman here by the first name of Hal

17

to leave at noon. Anybody else have time

18

traints? And how many people plan to

19

up here and make comment or statements?

20

(Whereupon, various

21

audience members raised

22

their hands in response.)

23

HEARING OFFICER HALLORAN: I see

24  ten people. 

That may change.

Page 54

1

But in any event, sir, you may come

2  up here.

3

Are you going to be put under oath

4  and subject to cross?

S

THE WITNESS: Sure, why not?

6

(Whereupon, the witness was duly sworn.)

MR. McARDLE: May I make an

8  objection just for the record?

9

HEARING OFFICER HALLORAN: Yes, you

10 may.

11

MR. McARDLE: On behalf of Mr. Lowe

12  and Lowe Transfer, I would object to any oral

13  statements, as I indicated in my motion in

14  limine. This is strictly based on the

15  record. And if people want to come up and

16  make comments citing to the record as I did,

17  that’s fine. But the suggestion of oral

18 statements and cross-examination clearly

19  indicate going beyond that. And I object to

20 any type of oral statement on that basis.

21

HEARING OFFICER 1-IALLORAN: Mr. Helsten?

22

MR. HELSTEN: The County would

23  stand upon its response to Mr. McArdle’s

24  motion in limine wherein we stated that the

Page 

1  appropriate rules under the Illinois

2  Administrative Code and under the case law

3  governing this matter has made it clear that

4  public comment is encouraged. If the Board

5  is well able, as the County has taken the

position before, Mr. Halloran, the Board is

7  well able to determine what is relevant, what

is appropriate, what does properly relate to

the underlying record and what does not. And

10  I think it’s better to err on the side of the

11  conclusion of everything and let the Board

12 determine what is relevant and appropriate

13  rather than exclude commentary.

14

HEARING OFFICER HALLORAN: Thank

15  you. Mr. Helsten, I am 

Mr. McArdle, your

16  objection is so noted for the record.

17 However, I will overrule it. I think the

18  Board is capable to disregard any statements

19 that are not in the record below. And feel

20 free to make specific objections as we go

21  along.

22

MR. McARDLE: Thank you.

23

HEARING OFFICER HALLORAN: Sir, I

24 don’t know if you stated your name for the

Page 56

1  record. And then just proceed.

2

MR. RUBEL: Hal Rubel.

3

THE COURT REPORTER: How do you

4  spell your last name?

5

MR. RUBEL: R-u-b--e-1.

HEARING OFFICER HALLORAN: Have you

7  signed up on the sheet?

8

MR. RUBEL: Yes, I did.

9

HEARING OFFICER HALLORAN: Thank

10  you, sir. You may proceed.

11

MR. RUBEL: Thank you.

12

PUBLIC COMMENT BY HAL RUBEL

13

on Tuesday, May 6th, 2003, the

14 McHenry County Board voted to deny the

15  application to site a waste transfer facility

16  along U.S. Route 14 by the proposed Marshall

17  Lowe facility on Northwest Highway waste

18  transfer facility, also known as solid waste

19  transfer station. There were nine

20 required 

there are nine required

21 state-established criteria for siting a waste

22  transfer station. The Applicant was denied

23  the application because of the failure to

24  meet all nine criteria. In fact, it was the

Page 

1  McHenry County Board’s determination that the

2  Applicant did not meet three out of the nine

3  required criteria. It is not a question of a

4  near-miss here. One-third or roughly 33

5  percent of the criteria were not met. Those

6  are Criteria No. 2, 3 and 5.

7

We support the Mdllenry County

8  Board’s unanimous decision that these three

criteria were not met by the Applicant. If

10  the application was approved, there would be

11  a substantial increase in garbage truck

12  traffic 

13

MR. McARDLE: Objection.

14

Judge, that’s this person’s opinion

15  about the effect of this proposed transfer

16  facility on the surrounding property, and

17  that’s outside the record.

18

HEARING OFFICER HALLORAN: Mr. Helsten?

19

MR. HELSTEN: I believe that this

20 individual is simply commenting upon a part

21 of the underlying record. There was expert

22 witness testimony by the objector’s witnesses

23  that, in fact, the proposed transfer station

24  would greatly increase traffic impacts. And

Page 

58

1  I think what this individual is doing is just

2  commenting upon that. He’s just reiterating.

What he’s saying is I agree        

of

4  the record that shows that,

S  Pollution Control Board to

6  well as the other things that the Applicant

7  has emphasized in their opening statement.

MR. McARDLE: That all may be what

he might have wanted to say, but that’s not

10 what he said. He started the sentence out we

11 believe. That was his opinion, and that’s

12 where he’s going with it.

13

HEARING OFFICER HALLORAN: Okay.

I’m going to overrule your objection,

Mr. McArdle. And, again, I will instruct the

Board when they review the transcript to

disregard anything that falls outside the

record that was generated below.

may proceed.

RIJEEL:

Also,

say we believe, and

my letter.

with that part

and I urge the

consider that as

You

MR.

did not

that in

23

24

for the record, I

it doesn1t say

If the

there would be a

application

substantial

was approved,

increase in

Page 59

1  garbage truck traffic, which would lead to

2  increased air pollution, noise pollution,

3  vermin, potential groundwater pollution,

4  unwelcome odors and garbage smells. If the

S  application was approved, the proposed

6  location of the waste transfer facility would

7  border the Hollows, a sensitive Mdflenry

County conservation area, threatening the

9  sensitive area’s well-being and, ultimately,

10  the public’s welfare.

11

If the application was approved,

12  the proposed location of the waste transfer

13  facility would be just over 1,000 feet from

14  Bright Oaks, one of Cary’s largest

15  residential neighborhoods. Residents do not

16  want garbage in their backyards. If the

17  application was approved, proper protection

18  of the public’s health, safety and welfare

19  would be at grave risk. The proposed waste

20  transfer facility site is simply far too

21 close to neighboring residents and sensitive

22  conservation areas and would simply downgrade

23 our quality of life. If the application was

24 approved, the waste transfer facility would

Page 60

1  have led to a significant increase in

2  slow-moving truck traffic, including garbage

and semi-trailer trucks, adding to an

ever-increasing traffic congestion problem

5  and resulting in a significant impact on

existing traffic flow.

7

My wife and I strongly support the

B  McHenry County Board’s decision to deny this

application and hereby request that our

10  support of the Board’s decision be added to

11 the public record. And we’re also submitting

12 a signed copy of this letter to Cameron

13  Davis, village administrator for the village

14 of Cary and the IPCB hearing officer.

15

Thank you.

16

HEARING OFFICER HALLORAN: Thank you.

17

Mr. McArdle, any questions

18

Remain seated, please.

19

MR. RUBEL: Sorry.

20

HEARING OFFICER 

HALLIORAN: Thank you.

21

MR. McARDLE: I have two questions.

22

24

Page 61

1

HAL RUBEL,

2  called as a witness herein, having been first

duly sworn, was examined and testified as

4  follows:

S

DIRECT EXAMINATION

6  BY MR. McARDLE:

Q.

Do you live in Bright Oaks?

A.

No.

Q.  Where do you live in relation to

10

A.

I live in Cary.

11

Q.  Where do you live in relation to

12  the site?

13

A.

I live in, I guess it would be

14 called, Hanson’s Corners.

15

Q.   Where is that in relation to the

site?

17

A.  That is a little bit south and a

18  little bit east.

19

Q.

I-Jaw little bit?

20

HEARING OFFICER HALLORAN: Can you

21

speak up, Mr. McArdle, please?

22  BY THE WITNESS:

23

A.  My address is 156 Wagner Drive.

24

Page 62

1  BY MR. McARDLE:

2

Q.   Do you have any opinion about how

far that is from this site?

4

A.

I would say it’s within a mile.

S

Q.   And you didn’t make any comments at

the County Board hearing, correct?

7

A.

No, I did not.

B

MR. McARDLE: That’s all I have.

9

HEARING OFFICER HALLORAN: Thank you,

10

Mr. McArdle.

11

Any questions of this witness,

12

Mr. Helsten?

13

MR. HELSTEN: No, Mr. Halloran.

14

HEARING OFFICER HALLORAN: Thank you.

15

You may step down. Thank you,

16

Mr. Rubel.

17

MR. RUBEL: Thank you.

18

HEARING OFFICER HALLORAN: Before I

19 forget, I know the village of Cary was

20 granted amicus status, and I will allow them

21 to make a statement. I think Miss Angelo is

22 here representing the village of Cary.

However, if it’s fine with you, we should get

24 the public up here in case they do have

Page 63

1  things to do so. 

.And I count about seven or

2  eight members of the public that wish to make

3   comment or statement, so we can go and maybe

4  15 minutes 

we’ll take a break for about 20

5  minutes or 15 minutes, and then we’ll come

back and finish up.

MS. ANGELO: The village is

S  certainly willing to wait until after

Mr. Heisten makes his comments as well. We

10 understand the desire to have the people who

11  have to leave have time to make their

12 presentations beforehand. So we’re perfectly

13 willing to wait.

14

HEARING OFFICER HALLORAN: Okay.

15 And for the benefit of the court reporter,

16 you are Miss Angelo?

17

MS. ANGELO: My name is Percy

18 Angelo 

P-e-r-c--y 

A-n-g-e-1-o. And our

19  statement actually is going to be made by the

20  acting mayor, Steve Lamal.

21

HEARING OFFICER HALLORAN: Okay.

22  Thank you.

23

Who wants to be next? Ma’am?

24

(Whereupon, the witness was duly sworn.)

Page 64

1

PUBLIC COMMENT BY KATHLEEN PARK

2

MS. PARK: Kathleen, with a K;

3   Park, like park the car.

HEARING OFFICER HALLORAN: Have a

5  seat.

6

MS. PARK: Thank you.

7

MR. McARDLE: And I missed this.

8  Is this a statement or a comment?

9

HEARING OFFICER HALLORAN: It’s a

10  statement. She was sworn.

11

MS. PARK: I am the former mayor of

12 Cary, 1985-1989. And prior to that, I was a

13  trustee in Cary. Marshall Lowe was a trustee

14  in Cary We frequently sat next to each

15 other at the Board meetings. Early in my

16  term of mayor, Marshall brought to the

17  Village Hall a man named Ray Plote. And

18  he--

19

MR. McARDLE: Objection.

20

This is beyond the scope of the

21  record.

22

MS. PARK: No, sir. This

23

HEARING OFFICER HALLORAN: Ma’am,

24 ma’am 

Page 

1

MS. PARK: 

addresses the land.

2

Oh, sorry.

3

HEARING OFFICER HALLORAN: Thank you.

4

MR. NcARDLE: And the reason this

S  objection is so material is because there was

6  a lot of testimony about this person who owns

7  the property to the east 

Mr. Plate 

who

a  actually didn’t testify; his son did. And

9  there was no discussion about Mr. Lowe

10  bringing Mr. Plote to the Village Hall at any

11  time during any point in history. So

12 whatever she’s about to say, it’s completely

13  outside the record. And I understand the

14 Board can appeal through this one way or the

15  other, but that is clearly not testified to

16 down below.

17

HEARING OFFICER HALLORAN: Mr. Helsten?

18

MR. HELSTEN: I stand on my prior

19  response, Mr. Halloran, that the Board is

20  well able to determine what is relevant, what

21 is not relevant, what public comment properly

22 relates to the existing underlying record.

23

HEARING OFFICER HALLORAN: Okay.

24 I’m going to sustain Mr. McArdle’s objection.

Page 66

1

However, you may proceed, Miss

2

Park, under an offer of proof. And if the

3  Board so feels that it is relevant and it was

4

in the record below, they can overrule me.

But you may proceed under an offer of proof.

6

MS. PARK: Thank you.

7

The reason I brought that up is

8

because when Mr. Lowe and Mr. Plate came to

9  see me in the village about 1986, they were

10  talking about the land that Mr. Plate since

11  has mined for sand and gravel. And they were

talking about developing it into a mixed-use

commercial and PUD town house development,

including a large spring-fed

lake.

After that meeting, a planning

16  commission meeting was held and a 

Mark

17  Johnson and Russ Taylor of Donahue and

18

Associates presented Cary Lakes Development,

19

which is the land you alluded to,

20

Mr. McArdle, as industrial land. Now, this

is 1986; today is 2003.

I wanted to put that

22  into the record so that it will substantiate

23 what I’m saying in this letter.

24

MR. McARDLE: I move to strike all

Page 67

1

2

3

4

5

transfer

7  owned by

with this si

to meet the

of the area

Ingress and

trucks per

right turn

currently

which mci

hazardous

increasing

drivers and

community’ 

I ‘ye

noted and

you.

waste

Highway,

is incompatible

2 this site fails

fety and welfare

reasons.

e of 60 garbage

both left and

stance of a

intersection

ad crossing. A

created

area for all

that.

HEARING OFFICER HALLORAN:

made my ruling. Your objection is

taken as an offer of proof. Thank

MS. PARK: The proposed

facility at 

3412 Northwest

Mr. Marshall Lowe

iteria

health, sa

following

to the sit

d require

a short di

four-way

tra railro

would be

s in the

te. Cr

public

for the

egress

day woul

s within

congested

udes a Me

situation

accident

adversely affecting our

safety.

The garbage

litter on our roads.

from the site to the a

The particulate matter

to have more attacks.

trucks would drop

There would be litter

djacent properties.

would cause asthmatics

Any and all of this

Page 

1  will adversely affect the health and welfare

2  of our community.

3

Areas adjacent to the site include

a conservation area that allows only

S  nonmotorized boats to keep pollution away

6  from the lake, a planned unit development

7  containing many seniors living in what they

8  consider their final home and another

spring-fed lake in the proposed residential

10 development on the third side of Mr. Lowe1s

11  site. The welfare of these established sites

12  should have priority over this proposed waste

13  transfer site.

14

Criteria No. 3: Incompatibility

15 with the character of the surrounding area

16 and effect of the value on the surrounding

17  area. A waste transfer facility at this site

18 would have a devastating effect on land

19 values within Algonquin Township, our Cary

20 community and also the treasury of the state

21 of Illinois. According to your criteria

22  guidelines, this type of facility should be

23  located so as to minimize the effect on the

24 value of the surrounding area. Most people

Page 

1  do not wish to live or own residential

2  property next to a garbage transfer station.

3  Mr. Lowe, his family and his experts will not

4  be living next to this site. However, they

5  think it is all right for other people to put

6  up with the daily stench of its operation

7  permeating the adjacent residential and

8  commercial properties.

9

Criteria 5: Plan of operation is

10  designed to minimize the danger to the

11  surrounding area from fire, spills and other

12  operational accidents. This site’s ingress

13 road is immediately along the boundary line

14 bordering the Hollows Conservation District

15  land. The minimal acreage of this site does

16 not provide a fire safety lane adjacent to

17 this ingress road that would protect this

18  conservation land from the frequent fires

19  that occur in garbage trucks as they wait to

20 dump their loads. The drywell drainage of

21  this operation will pollute the water tables

22  of our area.

23

This is not a case of not in my

24 backyard. This proposed site is too close to

Page 

1  residential developments. It has an unsafe

2  ingress and egress. It is a potential

3  polluter of the air we breathe, o

4  wells and as a polluter of the es

S  our surroundings. This site will

6  pollution problem. Truck traffic, truck

7  noise, truck exhaust as trucks go forward and

8  backward dumping their loads will be the new

9  sounds of our environment. Garbage odors,

10  garbage litter, garbage-loving rodents will

11 be added to our residential neighborhoods.

12  Peace and quiet, the sounds of frogs, ducks,

13  geese and songbirds will be a thing of the

14 past.

Please

16

waste transfer si

17 forever. Sincere

18  of Cary 

former

19

HEARING

20

First,

21  Mr. McArdle, Miss

22 my desk. I’m not

23

MS. PARK:

24 we could give a let

deny this application for a

te at this location now and

iy, Kathleen A. Park, mayor

mayor of Cary.

OFFICER HALLORAN: Ma’am.

before we get to

Park just laid something on

sure what it is.

I’m sorry. We were told

ter to the hearing

ur water

thetics of

bea

Page?!

officer. It’s a copy of what I just read.

HEARING OFFICER HALLORAN:

Okay.

3  have to mark it appropriately. That’s fine.

4

I’m going to mark Miss Park’s

5  letter 

it doesn’t have a date on it, but

6  it’s the statement she just read into the

record.

8

MS. PARK: August 13th.

9

HEARING OFFICER HALLORAN: August

10  13th, I’m sorry.

11

I’ll mark it as Hearing Officer

12 Exhibit 1.

13

(Whereupon, said document

14

was marked as Hearing

15

Officer Exhibit No. 1,

16

for identification, as

17

of 8-14-03.)

18

HEARING OFFICER HALLORAN: Mr. McArdle,

19 your witness.

20

MR. McARDLE: I just have one

21 question.

Page 72

1

KATHLEEN PARK,

2  called as a witness herein, having been 

first

3  duly sworn, was examined and testified as

4  follows:

5

DIRECT EXAMINATION

6  BY MR. McARDLE:

7

Q.  Where do you live, ma’am?

8

A.

I live in Greenfield 

it’s 125

9  Carlisle Court. I am about a mile and—a-half

10  from this site.

11

And since you asked me this, I’m

12 going to add into my answer that I lived even

13  farther from the mink farm that we had in

14  Cary. I probably lived two or three miles

15  from the mink farm. And in my distance, I

16  still could smell the effects when they were

17  killing the mink and skinning them, because

18  wind and 

there1s a thing called osmosis.

19 And smells that are concentrated 

I’m

20 answering you 

concentrated smells get to

21 permeate the air and go from the concentrated

22  to the less concentrated. So I, too, would

23  be able to smell things that are far away,

including a waste transfer station or a mink

Page 73

1  farm.

2

MR. McARDLE: I’ll move to strike

3

all the information about the mink farm

4

for being outside the record.

5

HEARING OFFICER HALLORAN: Your 

6

MS. PARK: That’s my answer.

7

HEARING OFFICER HALLORAN: I’m

8

sorry, Miss Park.

9

Your motion is denied to the extent

10

that, again, all of Miss Park’s testimony

11

is taken under an offer of proof, based

12

on Mr. McArdle’s earlier objection.

13

MR. McARDLE: Thank you. That’s all.

14

HEARING OFFICER HALLORAN: Thank

15

you. And I’m going to qualify this.

16

This public comment, I’m going to name it

17

Public Comment No. 1 from Miss Park.

18

Thank you.

19

(whereupon, said document

20

was remarked as Public

21

Comment Exhibit No. 1,

22

for identification, as

23

of 8-14-03.)

24

HEARING OFFICER HALLORAN: Mr. Heisten?

Page 74

1

MR. HELSTEN: Nothing.

HEARING OFFICER HALLORAN:

Thank you,

Miss Park.

All right.

Who’s next?

Number

three?

Yes, sir?

Come on up.

(Whereupon, the witness was duly sworn.)

MR. MACKINTOSH:

My name is a

Greg

HEARING OFFICER HALLORAN:

You have

to speak up and talk to the audience.

MR. MACKINTOSH;

Okay.

I’ll try to

do that.

Greg

- -

G-r-e-g

- -

Mackintosh 

M-a-c-k-i-n-t-o-s-h.

PUBLIC COMMENT BY GREG MACKINTOSH

I believe it was stated in the

17 record that Criteria 2 relates to the effect

18 on the value of property holders. An

19 important determinant of that value relates

to the taxes and assessments that homeowners

pay.

Also an important determinant to that

value, both relating to the taxes that

people

pay and to other property holders, are the

bondholders.

These

Page 75

1

MR. McARDLE: I’ll object to this

2  on the same basis of Miss Park’s 

3

I’m sorry, sir.

4

Objection based on the fact that

S  his testimony he’s rendering is outside the

6  record. Again, clearly 

I’m only going to

7  make this objection if it’s clear. There

8  were no questions about this field at all

9  during the proceedings.

10

HEARING OFFICER HALLORAN: Mr. Helsten?

11

MR. HELSTEN: Again, I stand on my

12 prior position on behalf of the County Board.

13

HEARING OFFICER HALLORAN: So your

14 argument is this witness is testifying to 

15

MR. McARDLE: Issues about real

16 estate, which is fine, so long as they’re

17 based on the record. But what he had just

18  been testifying to, those words were never

19 mentioned during the underlying proceeding.

20 We’ve never discussed those topics that he

21 just mentioned.

22

HEARING OFFICER HALLORAN: Again, I

23  will sustain your objection, Mr. McArdle. I

24  will take the witness’s statements in an

offer of proof

instructed to

You

MR.

Ibe

property A and

higher real estate tax

money than propert B

are higher. Hence, I

statements of value go

what the impact of thi

would be to the value

If you look

determines those taxe

happens to the

an entity that

$17.7 million

infrastructure

we’re talking

the year 2030.

that those bond

village general

1

3

Page 76

and the Board will be so

look at it as such.

may continue, sir.

MACKINTOSH: Thank you.

lieve it’s common sense that

property B, all things being

7  equal, if property A requires payments of

y

B

10

11.

es would be worth less

if those property taxes

do believe that

to the very core of

s transfer station

of those instruments.

at the scope of what

s, that includes what

bonds. The village of Cary or

Cary controls sold bonds worth

to fund development of

in the very neighborhood that

about. Those bonds mature in

Now, it’s my understanding

s are secured not by the

fund, but by the value of the

24 land 

the value of the land in the direct

There’s also a potential liability

issue here, I believe, and that’s that the

offering memorandum 

which, unfortunately,

I’ve not been able to obtain to read,

although I’ve requested it 

includes a

continuing disclosure agreement. That

agreement requires that material events be

disclosed to the bondholders. So obviously,

I’m wondering is this hearing, is this

proposed transfer station a material event?

Has the village attorney apprised the village

that it is not? I’m also wondering if there

ure requirements that the

and Exchange Commission 

this bond issue.

I simply want to make sure that

Page 77

1  vicinity in visual site of where the proposed

2  transfer station is. Clearly, anything that

3  affects the value of the land, then, would

4  affect the value of the bonds and could

S  affect Cary’s bond rating with Moody’s and

6  Standard and Poor’s, which means it also

7  affects the village’s ability to borrow the

8  money.

are discios

Securities

regarding

SEC

requ ire

Page 78

1  these matters are known, understood and made

2  available to the Board. The last thing that

3  the village of Cary needs is to become

embroiled in a financial scandal or

5  potentially 

a

class action lawsuit brought by

6  the bondholders.

7

Thank you.

8

HEARING OFFICER HALLORAN: Thank you.

9

Mr. McArdle, your witness under the

10 understanding this is under an offer of

11 proof. So you may proceed.

12

MR. McARDLE: First of all, for the

13  record, I understand your ruling. I’ll make

14

a

motion to strike the testimony regarding

15 taxes and bonds for the reasons I indicated.

16

HEARING OFFICER HALLORAN: You want

17 to speak up, Mr. McArdle? We have hands in

18 the audience. Could you repeat what you just

19 said?

20

MR. McARDLE: 

Yeah.

I’ll make a

21 motion to strike the testimony regarding

22 bonds and taxes, because that testimony was

23 not referred to in the record.

24

HEARING OFFICER HALLORAN: Okay.

Page 79

1  Motion denied; it’s is taken as an offer of

2  proof. You may proceed, Mr. McArdle.

3

GREG MACKINTOSH,

called as a witness herein, having been first

5  duly sworn, was examined and testified as

6  follows:

DIRECT

EXAMINATION

BY MR. McARDLE:

9

Q.  You made no comments at the County

Board proceeding, correct?

Correct.

Q.  Did you ever show up to any County

Board proceedings?

14

A.  I was not aware of any County Board

proceeding.

MR. McARDLE:

Thank you.

That’s

all I have.

HEARING OFFICER HALLORAN:

Mr. Heisten?

19

MR. HELSTEN: Nothing.

20

HEARING OFFICER HALLORAN: Sir, you

2.

may step down, but did you sign up on the

22

sign up sheet?

23

MR. MACKINTOSH: No, I did not.

24

HEARING OFFICER HALLORAN: Could

Page 80

1

you do me a favor and do so?

2

MR. MACKINTOSH: Absolutely.

3

HEARING OFFICER HALLORAN: Thanks.

4

And somebody’s white pen is here.

5  I don’t want to take off with it.

6

MISS PARK: No, keep it. Keep it.

7  Keep it.

8

HEARING OFFICER HALLORAN: Are you

9  sure?

10

MISS PARK: Yes.

11

HEARING OFFICER HALLORAN: It’s one

12 of the better pens I have.

13

I think what we’ll do now is take a

14 ten- or 15-minute 

let’s take a 15-minute

15 break, unless somebody has to get out of here

16  in a hurry. And then wehll proceed with

17 public comment. Is that fine?

18

(No response.)

19

HEARING OFFICER HALLORAN: I see no

20 hands, so let’s take a break. Thanks.

21

(A short break was had.)

22

HEARING OFFICER HALLORAN: All

23  right. If we can have our seats, please.

24 We’re starting now; itls about 12:20. And I

PageS!

1

want to note for the record Miss Park 

2

I marked Public Comment No. 1, this is

what she was reading into the record

Her when she testified. It’s another

document, and I’m not sure Mr. McArdle has

had an opportunity to take a look at it. But

it will be taken as Public Comment No. 1.

8

(Discussion held off

the record.)

10

HEARING OFFICER HALLORAN: The

record will make that

MISS PARK:

HEARING

just gave me

y, October 20

And you

into the record?

MISS PAR

Mr. M  le object

previ  testimony.

just

what

not

ear

Park

Monda

clear.

Keep it.

ICER HALLORAN:

some minutes

1986.

Miss

of

OFF

a-

th,

say

You

K:

cArd    

ed

ou s

you did not read this

read paragraph No. 3?

I referred to that, and

that it was not on the

I referred to that for

21 historical

22

23

24

significance where we’re talking

about the zoning and what’s all

property surrounding Mr. Lowe’s

And Mr. McArdle, when he opened

owed on the

property.

his remarks

Page 82

today, said that that was all industrial

zoning and all the uses and that’s what

Mr. Lowe was going by. But I said that the

history of that planning commission minutes

indicates

that Mr. Lowe knew that that land

was intended to be a mixed-use commercial

residential with a spring-fed lake when the

sand was finished being dug out of it.

HEARING OFFICER HALLORAN: Was this

in the record below, ma’am?

MISS PARK:

Record below

HEARING OFFICER HALLORAN:

generated in the record below at th

Board? Was this read 

MISS PARK: That piece of

HEARING OFFICER HALLORAN:

17 the record?

Ma’am, please,

the court reporter

can only take one voice at a time.

MISS PARK: No, that piece of paper

not entered. So if you want to throw it

you can do so

HEARING OFFICER

I don’t want to 

if you

1

2

3

4

S

what?

Was this

e County

paper 

into

19

20

21

22

23

24

was

away

HALLORAN:

want me to

No, no,

take it

Page 83

1  as public comment, and the record will bear

2  this out that this is not really a comment,

but, you know what? We’ll just add it to

your Public Comment No. 1. We’ll add it as

5  an exhibit to your Public Comment No. 1 and

date it August 13th, 2003.

7

MISS PARK: Fine.

HEARING OFFICER HALLORAN: Thank you.

And the Board will disregard any

statements in here that are not in the record

1.   generated below.

12

With that said, who wants to be the

13  next witness or next comment?

14

Yes, ma’am. Step up.

15

MS. POST: I’m Betty Post.

16

HEARING OFFICER HALLORAN: Do you

17 want to be sworn in?

18

MS. POST: Yes.

HEARING OFFICER HALLORAN: Thank you.

20

(Whereupon, the witness was duly sworn.)

21

PUBLIC COMMENT BY BETTY POST

22

HEARING OFFICER HALLORAN: And I’m

23 going to add 

I’m sorry. Miss Post’s name

24 is here.

1

2  you.

You may proceed, Miss Post.

Page 84

Thank

McHenry

arrived

hearings

I’m sure

decision

station

and on

in

ion

to the

areas.

he east

area.

County

locatio

It is

it is next

The Lowe

and south of

It was

Conservation

MS. POST: Thank you.

I support the decision of the

County Board and the existing record

at after 11-plus long days of

which I personally attended.

Following are some of the points

they have used in the County Board’s

The proposed waste transfer

would be great

an adequately-si

in the right

zed property.

n

not right for a

McHenry County,

acres.

small 2.

you can’

6 acre

t keep

property.

a horse on

In

2.6

It

adjacent

to residential and retail

property is adjacent to t

the Hollows Conservation

purchased by the McHenry

District  1977 from Vulcan Material

Corporat 

Although its zoning was never

changed from industrial, it is a 350-plus

acre site with hiking trails, fishing,

Page 85

picnicking and camping sites. It houses many

protected

species of birds, mammals, reptiles

and amphibians. Lake Atwood has been stocked

with various species of fish.

1,346 feet to

ubdivis ion of

I

ished

ung

80-acre s

in 1972.

couples 

area dire

220-home

up in 198

Mr. Fulle

in one of

the east is an

422 homes establ

many seniors and yo

with health problems. The

is 56 acres is a proposed

on, which plans were drawn

was given to

ler mentioned in his 

t houses

seniors

ctly east

subdivisi

and a copy

r and Mr. Ful

his testimonies.

To the north is

homes and a lake.

d this area as hi

over 3

classi

50

fie

Lake

Mr.

ghly

Killarney with

Lowe

industrial.

His as

time 0

and a

indus

phalt crushing

f the hearing,

small concrete

trial businesses.

Transfer stations,

run, still brings smell, sea

and could contain hazardous

Hollows would be greatly af

plant 

which, at the

did not have a permit 

plant are the only

even the best

gulls, vectors

waste. The

fected by an

Page 86

1

adjacent transfer

station as well as the

2  nearby residents and businesses. Chemical

and household waste could contaminate the

4  lakes and affect the underground ecology.

5

The entrance is a long two-lane

road that should there be an accident or a

7  breakdown could block traffic on Northwest

Highway as well and would not be adequate for

emergency vehicles. The intersection of

10 Three Oaks and Northwest Highway is a quarter

11 mile southeast and is classified by Cary

12 police as the most dangerous intersection in

13 Cary. Northwest Highway is already blocked

14 by 

—-

as trucks leave the present Lowe

15 facility. The property sits higher than its

16  adjacent neighbors, and the proposed building

17  would sit even higher and stick out like a

18  sore thumb. There is not room for adequate

19  safety precautions.

20

Water needs to be pumped out of two

21 500-gallon tanks. The area cannot be washed

22  daily as most designers recommend it. I

23 believe after 11 days of hearings, this

24  County Board made the only decision it could

Page 87

1  make by denying the application for the Lowe

2  transfer station at this location. I support

3  their thoughtful decision.

4

Mr. Lowe, find another site for

S  this needed facility, one that can have

6  recycling and not infringe on its residential

7  and retail community.

8

Thank you.

9

HEARING OFFICER HALLORAN: Thank

10 you. Miss Post, you may remain seated,

11 please.

12

I would also ask the audience not

13  to clap after each and every witness gets

14 finished with their testimony. And I do

15 I’ll take this moment now. I have it on good

16 authority that at one time I think I counted

17 50 to 75 members of the public in the stands.

18 However, I’ve been told there is 161 

at

19 least there was at one time.

20

So in any event, with that said,

21 Mr. McArdle, your witness.

22

MR. McARDLE: No questions.

23

HEARING OFFICER HALLORAN: Thank you.

24

Mr. Helsten?

Page 88

MR. HELSTEN: No questions.

2

HEARING OFFICER HALLORAN: Thank you,

3  Miss Post.

4

Who wants to go next? I have

5  Mr. Lamal next in line if you want to go.

6

Okay, sir?

7

MR. McCUE: I’m on the list.

8

HEARING OFFICER HALLORAN: Do you

9  want public comment or be sworn in?

10

MR. McCUE: You can swear me in.

11

(Whereupon, the witness was duly sworn.)

12

PUBLIC COMMENT BY JOHN McCUE

13

MR. McCUE: Now, remember, we can’t

14 have any clapping. Shame on you.

15

My name is John McCue. I live at

16 394 Ann Street, and I’m a resident of the

17 village of Cary. I1ve lived in the home that

18 we own since 1979.

19

When I became aware of the fact

20 that there was a proposal to site the waste

21 transfer station near my home, I decided to

22 get in my car and drive over to Mr. Lowe’s

23 location, which is plainly marked on Route

24 14, and turn around and drive back to my

Page 89

1  house to see how far I was from this. That

2  turns out to be eight-tenths of a mile,

3  because I drive down Route 14 to Three Oaks,

4  and Three Oaks to Silver Lake and then you’re

5  right at Ann Street. So that’s really what

6  it is from my driveway to his place of

7  business. During the meetings 

I think I

B  attended all but maybe one or two 

I heard

9  a great deal of testimony, and I talked about

10 how this 

and I heard people speak about

11 how this site wouldn’t change the character

12 of the area. Well, if you took the famed

13  route 

drive from Mr. Lowe’s property to my

14  home, you’d come upon Thornton’s Gas Station,

15 you’d come upon the Jewel shopping center.

16 You’d come down a little further, and you’d

17 find Bright Oaks. There’s Coil Craft,

18 there1s Seequist, there’s Lion’s Park and a

19 whole bunch of homes. I got lots of

20 neighbors. So the idea that this site

21 wouldn’t change the character of the area is

22  complete and absolute fiction.

23

But I’m able to understand today

24  Mr. Lowe and Mr. McArdle would be confused by

Page 90

1  this, because, after all, a waste transfer

2  station is just a big trucking operation.

3  And taking that reasoning just a step

4  further, that would make a coil refinery just

S  a big rail and trucking operation. So I

think that it not only changes the character

7  of the area eight-tenths of a mile from where

8  his site is proposed, but I think it changes

the character of the commercial occupancies

10  that are around him, because they aren’t

11  offensive.

12

And what makes them offensive? I

13 heard about how much noise would be developed

14 during the hearings 

the air pollution,

15 primarily, mostly; I guess just the stench of

16  the garbage. And I heard a term I didn’t

17 know the definition for initially 

vectors.

18 And I guess vectors are things like rodents

19 and sea gulls, which we have a few of at the

20 Jewel 

at the Jewel 

at the shopping

21  center where Jewel is at. And I’m sure

22  they’ll be relieved to know that they’ll all

23 be feeding Mr. Lowe’s waste transfer station.

24

Another thing that’s disturbing

Page 91

1  about this proposal was what I didn’t hear at

2  the meetings that I attended. I didn’t hear

3  anything about a perpetuation plan. And

4  being about Mr. Lowe’s age and a little

5  overweight like he is 

MR. LOWE: Speak for yourself,

7  buddy.

MR. McCUE: You’ll make sure that

Mr. Lowe’s comments

10

HEARING OFFICER HALLORAN: I don’t

11  think we have to get personal, Mr. McCue.

12 You may proceed.

13

MR. McCUE: This is the most

14 personal thing that has happened in the 62

15 years I’ve been alive.

HEARING OFFICER HALLORAN: I don’t

17 think you have to make reference to a

18 person’s weight. Thank you. You may

19 proceed.

20

MR. McCUE: There was no mention of

21 a perpetuation plan, and that would include

22  if the business was sold. I heard a lot of

23  technical information about how this facility

24 would work, and I have to admit that that was

Page 92

1  quite an education. But I also heard, and I

2  think even Mr. McArdle admitted this, that

3  Mr. Lowe has no experience running one of

4  these transfer stations, but that the remedy

S  would be that he would hire somebody that

6  did.

7

The other thing that wasn’t ready

B  for people to review was the application to

9  the EPA so that we’d get better insights as

10 to what the real projected production of a

11 facility like this might be. Could things be

12 added? Could an incinerator be added? I

13  didn’t hear anything about a financial plan,

14 and that struck me odd, too, because how

15 could you invest the kind of money and

16 proposing and developing a site like this

17 without backing? And none of that

18 information was volunteered.

19

As far as there being a crying need

20 for this facility, I’ve lived on Ann Street

21 since 1971, and I have never once had any

trouble having somebody pick up my garbage.

23

Thank you for listening to me.

24

HEARING OFFICER HALLORAN: Thank you.

Page 93

Mr. McArdle?

MR. McARDLE: I have no questions.

HEARING OFFICER HALLORAN:

MR. HELSTEN: None.

HEARING OFFICER HALLORAN: Thank

you, Mr. McCue. You may step down.

MR. McCUE: Thank you.

HEARING OFFICER HALLORAN: Who

to volunteer next to step up

comment? Yes, sir? Come on

MR. O’SHAUGHNESSY: Good

HEARING OFFICER HALLORAN:

morning. Step up

(Whereupon, the witness was duly sworn.)

PUBLIC COMMENT BY BRIAN O’SHAUGHNASSY

HEARING OFFICER HALLORAN: And

you’re signed in here, sir?

MR. O’SHAUGHNESSY: Yes.

HEARING OFFICER HALLORAN:

You may state your name

Thank you.

MR. O’SHAUGHNESSY: My name is

Brian O’Shaughnessy. I’ve been a resident of

Cary for about 18 years.

Mr. Heisten?

wants

their

and make

1

2

4

5

B

in.

morn

Go

and raise your right

ing.

od

hand.

Thank you.

your piece.

okay.

and speak

Page 94

1

The objections raised by Mr. Lowe

2  regarding Criterions 2, 3 and 5 are based on

3  the physical plant 

the plan of this

4  physical plant. And it seems to me that

5  they’ve worked very hard to make this as safe

6  as can be expected.

7

Of course, there are unexpected

8  things that affect it. Something that refers

9  directly to those three that are not

10 mentioned in the defense of their proposal is

11  the garbage truck traffic. Referring to

12  Criterion 2, the facility is so designed,

13  located and proposed to be operated that the

14 public health, safety and welfare will be

15 protected. I say that a stream of garbage

16  trucks flowing into Cary every day will go

17  against the public health, safety and

18 welfare.

19

Criteria No. 3, the facility is

20  located so as to minimize incompatibility

21 with the character of the surrounding area.

22  I think that a steady flow of garbage

23 traffic, whether it’s the garbage trucks or,

24  indeed, the transfer semis, are not

is

least

code or,

honor

truck

y. The

fact,

in that

Page 95

compatible with the residential community and

the industrial areas that we have dedicated

solely for industry.

Criteria

No. S says the plan of

operations for the facility is designed to

minimize the danger to the surrounding area

from fires,

spills or other operational

accidents.

And the key that I’m speaking to

right now is operational accidents. I think

that the plan will, in fact, maximize the

danger by increasing the traffic flow. The

objections here addres

my objections, I mean,

truck traffic. This t

uncontrollable by legi

in fact, what it will

system 

our trust th

drivers will, in fact,

traffic becomes, in ef

part of the facility’s

s just the garbage

object the garbage

raffic is

slation, local

fall to 

the

at the garbage

drive carefull

fect, if not in

infrastructure

flowing

five day

The

in and

s a week.

rest of my notes

do with more personal feelings

out all day long at

here have to

about it and

Page 96

1  are really not relevant to my points, so I

2  will end my statement there.

3

HEARING OFFICER HALLORAN: Thanks,

4  Mr. O’Shaughnessy.

5

Mr. McArdle, your witness.

6

MR. McARDLE: Yeah. I just have

7  the same two questions I’ve asked of other

8  people.

9

BRIAN O’SHAUGHNESSY,

10  called as a witness herein, having been first

11 duly sworn, was examined and testified as

12  follows:

13

DIRECT EXAMINATION

14 BY MR. McARDLE:

15

Q.  Can you tell me where you live in

16  relation to the proposed site?

17

A.

I live in the town of Cary.

18

And where is your home in

19  relation

20

A.  My address is 307 Candlewood Trail

21

And how far is that, approximately,

22  from the proposed site? I don’t know where

23  that is.

24

A.  I think a village map would better

Page 97

1  answer that than I.

2

You have no opinion?

3

A.

I have no opinion.

4

Q.  Are you further than the Bright

5  Oaks Development?

6

A.

Yes.

7

Q.  And you didn’t make any comments at

8  the County Board proceeding, correct?

A.

Was the 

let me clarify The

10 meetings that were in Crystal Lake, were

11 those part of the County Board?

12

Yeah. At the library?

13

A.

Yes.

14

Yes?

15

A.

Okay. Yes, I did.

16

You did on that day?

17

A.

Yes.

18

MR. McARDLE: Thank you.

19

That’s all I have.

20

HEARING OFFICER HALLORAN: Thank

21

you, Mr. McArdle.

22

Mr. Heisten?

23

MR. HELSTEN: Nothing.

24

HEARING OFFICER HALLORAN: Thank you,

Page 98

1

Mr. O’Shaughnessy, you may step down.

2

Thank you.

3

Who’s next, please? Sir?

4

Are you going to make a public

5  comment or be sworn in and make a statement?

6

MR. HANSON: I’ll be sworn in.

7

HEARING OFFICER HALLORAN: Thank you.

8  You may raise your right hand.

9

(Whereupon, the witness was duly sworn.)

10

PUBLIC COMMENT BY DAVE HANSON

13.

HEARING OFFICER HALLORAN: Thank

12 you. State your name and

13

MR. HANSON: My name is Dave

14  Hanson, and I’m from Lake Killarney 

15 K-i-1-l-a-r--n--e-y.

16

Through the hearings, there was a

17 lot of public testimony given where people

18 could come up and talk. You had cub scouts,

19 girl scouts. You had people from all walks

20 of life that came out and spoke how they felt

21 about this being next to the Hollows. And

22 they have to sign up to get that. They rent

23 that out or, you know, they sign up as a

24 usage of it. And I have a sheet here that

Page 99

tells those

signed up f

Girl scouts

use

McArdle

acent to

en Bright

the peop

property

accepting

idn’t have

people, you know,

or it at cub scout

•   there’s all sort

the Hollows who objected

Through the entire

Mr.

referred to it as

The Hollows may be zoned 1-2,

used as 1-2 zoning. And they

stressed their point 

it’s

It’s not I—2.

where they

packs and that.

s of people that

to this.

hearing,

1-2 zoning.

but it is not

really just

1-2. It’s not.

le

Bright Oaks.

Oaks and Prin

in Princeton

knowing that

that. The p

a say as to

ow, it’s up 

you

everybody’s come out and

And on the public record,

from all over the area.

all over, not just Bright

who state that this doesn’

N

The property is also adj

The difference betwe

ceton Village is that

Village bought their

was next to them and

eople in Bright Oaks d

what went next to them.

know,

said their piece.

you have people

You have people from

Oaks, but all over,

t work here.

McHenry County needs one of these. This is

not the right site.

industrial area, not

or residential.

Lake Killarney

f is

wat

The stormwater runof

surface water. That

toward Lake Killarney.

through all the previous

Page 100

They are usually in an

a conservation district

is

a

er

It

to the north.

concern into the

drains directly

‘s a public record

estimony in that

the site proposed does not meet the

10  3. It’s not compatible. It’s not

11 with the surrounding area at all.

12

The job of the County Board was to

13  evaluate the testimony 

hours and hours and

14  days and weeks of it. They thought it would

15  go for two days, and it went for two weeks.

16  Everybody was there.

17

You were there.

It was 

those were long

And they were to go back with a

recommendation to the County Board

they felt. And they went back and

County Board that it’s not going to

doesn’t meet three of the criterion.

the testimony in Woodstock, they bro

days.

as to how

told the

work. It

During

ught up,

Criterion

compatible

Page 10)

1  in fact, Criterion 5. They didn’t know who

2  they were going to call if there was a

3  accident or a major spill 

that this would

4  just be scooped up and done with and stored

S  in a container there overnight. And that’s a

6  danger to the surrounding area.

7

When the County Pollution Control

8  Board Members and some of the objectors went

to the two sites 

the Glenview and the

10 other one was Palatine 

there was one thing

11 that both sites had in common: A terrible,

12 terrible smell. That smell blows around it.

13 It can’t be contained in any way. That’s a

14 threat to the surrounding property values.

15 Who would want to buy a property next to one

16 of those facilities that smelled like that

17 constantly all the time? It’s hard to

18 contain smell.

19

That’s it.

20

HEARING OFFICER HALLORAN: Thank you,

21 Mr. Hanson.

22

Mr. McArdle?

23

24

Page 102

1

DAVE HANSON,

2  called as a witness herein, having been first

duly sworn, was examined and testified as

4  follows:

S

DIRECT EXAMINATION

BY MR. McARDLE:

Where do you live again?

8

A.  I’m in Lake Killarney.

MR. McARDLE: No questions.

10

Thank you.

11

HEARING OFFICER HALLORAN: Thank you.

12

Mr. Helsten?

13

MR. HELSTEN: Nothing.

14

HEARING OFFICER HALLORAN: Mr. Hanson,

15

would you like to take what you handed

16

me

you have the Hollows Usage Report,

17

and you referred to it briefly in your

18

testimony. Do you want me to take that

19

as Public Comment No. 2?

20

MR. HANSON: Yes.

21

HEARING OFFICER HALLORAN: Okay.

22

All right. I’ll take it with the case.

23

Thank you, Mr. Hanson.

24

Page 103

1

(Whereupon, said document

2

was marked as Public

3

Comment Exhibit No. 2,

4

for identification, as

S

of 8-14-03.)

HEARING OFFICER HALLORAN: Miss

Johnson?

8

And I haven’t forgot about you,

Mr. Lanai.

10

Are you going to give public

11 comment or.

12

MS. JOHNSON: (Nodding.)

13

(Whereupon, the witness was duly sworn.)

PUBLIC COMMENT BY SUZANNE JOHNSON

15

HEARING OFFICER HALLORAN: You may

16 have a seat. Thank you. State your name.

17

MS. JOHNSON: S-u-z-a-n-n-e

18 J—o-h-n-s-o-n.

My name is Suzanne Johnson. I

attended most of the testimony. The thing

that surprised me when the Board voted was

22 that they voted unanimously. Those of us

23 that were there heard the testimony. I also

24 had concerns that the Members of the Board

Page

104

7

B

10

15

16

18

22

24

who Ian

from

is only a

there were

I can tell

we count the

itions that

this? I

were a great

signed

waste

1  would not read and follow everything. 

Our

2  County Board Members are not elected

3  throughout the County. Therefore,

4  able to vote for and all the people

5  Cary, it is not the full Board. It

few members. The full Board voted

unanimously to turn this down.

When you mention that

not that many people that spoke,

you I was afraid to speak. Did

number of people that signed pet

were turned in that were against

think you would find that there

number of people from Cary that

petitions in opposition to this

transfer station

The thing

was the last day of

back some witnesses.

questioned about the

of the testimony on

whether it was too

was there and the

mentioned that he

that concerned me most

testimony we had brought

And Mr. Gordon was

auto turn program. Much

the actual facility was

large for the space that

turns. Mr. Gordon

was familiar with the auto

Page 305

1  turn program and that he did not use it for

2  the large trucks, but he did manually feel

3  that the large trucks could safely make the

facility.

that I had

ue to the property

property

that when you buy, the cost of your property

lready built in the surrounding things

are already there. The area that they

d at that they claimed and you submitted

letters that increased in value,

ased in value only nominally in each

where Bright Oaks has been showing a

increase in value. Therefore, a

ity such as this is not built into the

for Bright Oaks, where it was in your

other facility.

I just feel that the Board did look

turns. The question

as to why you would

program and not the

that the concerns of

spills would be very

trucks are able to u

was never brought to him

use smaller trucks in the

larger ones. And I feel

the danger with having

large if these large

se this

concern      

was we

talked

Those t

abo

hat

The other

ut the val

are fami

liar with     

know

has a

that

looke

your

incre

year,

large

facil

value

Page 106

at everything. I feel that the siting

2  committee did a wonderful job in showing up

3  for all those hours of testimony. And I also

4  feel that a great number of people did attend

5  the hearings, even if they did not speak.

Thank you.

HEARING OFFICER HALLORAN:

Thank you,

8  Miss Johnson.

Mr. McArdie?

10

SUZANNE JOHNSON,

11 called as a witness herein, having been first

12 duly sworn, was examined and testified as

13 follows:

14

DIRECT EXAMINATION

15 BY MR. McARDLE:

16

Q.  Ma’am, you, in fact, did make a

17 comment at the hearing below, correct?

18

A.  Correct.

19

Q.  And do you remember Mr. Nickodem’s

20 testimony where he actually listed six

21 facilities that were similar in size to the

22 one proposed by Mr. Lowe?

23

A.

Yes, yes.

24

MR. McARDLE: That’s all I have,

Page 107

1

thank you.

2

HEARING OFFICER HALLORAN: Thank you,

Mr. McArdle.

Mr. Heisten?

5

MR. HELSTEN: Nothing.

HEARING OFFICER HALLORAN: Thank you.

7

You may step down. Thank you, ma’am.

8

Mr. Lamal? Am I pronouncing that

correctly?

10

MR. LAMAL: Pardon?

11

HEARING OFFICER HALLORAN: Am I

12 pronouncing that correctly?

13

MR. LAMAL: Yes, that’s fine.

14

I have some additional copies for

15 the record.

16

HEARING OFFICER HALLORAN: Okay.

17 Thank you.

18

MR. LAMAL: Thank you.

(Whereupon, the witness was duly sworn.)

PUBLIC COMMENT BY STEVE LAMAL RUBEL

21

MR. LAMAL: My name is Steve Lamal,

22 and I’m the acting mayor of the village of

Cary.

24

Cary participated actively in the

Page 108

1  proceedings on the Lowe transfer station

2  before the McHenry County Board, and we

certainly welcome the opportunity to support

4  the decision of the Board denying siting

approval. Because of the length of the

record below, I will address only limited

parts of it today, but my comments are based

B  on the record before the County Board and are

in support of the Board’s decision on

10  Criterias 2, 3 and 5.

11

The proposed transfer station

12 directly abuts the village of Cary. The

13 proposed Plote Family property, a large

14 residential and commercial development

15 designated as residential in the official

16 Cary Comprehensive Plan and the subject of

17 planning between the Plote Family and the

18 village of Cary for well over a decade

19 borders the proposed site. This development

20 which the Lowe application assumed

21  incorrectly would be industrial, is vital 

22 absolutely vital 

to the future of the

23  village of Cary.

24

The 435-unit Bright Oaks

Page 109

1  subdivision in the village of Cary is only

1300 feet from the proposed transfer station.

Many Bright Oaks residents, which include a

4  high proportion of senior citizens and young

S  children participated in opposition to the

Lowe site in the County hearings. Bright

7  Oaks is a very stable, well cared for

8  community of over 30 years old. Lowe’s

application claimed that a berm prevented the

10  Bright Oaks residents from seeing the

11  transfer station site. Pictures and

12  testimony at hearing made it clear that this

13 was incorrect. The proposed station site

14  sits on high ground directly west of Bright

15  Oaks and is very visible, directly impacting

16  the Bright Oaks neighbors.

17

Other sensitive areas near or

18 bordering the site include a proposed

commercial development south of the site in

20  Cary, and vitally important to the future of

21  Cary, which was not even considered by Lowe’s

22 application. Besides the nearby residential

23 and commercial uses, the Lowe site will also

24  impact the McHenry County Conservation

1  District Hollows property bordering the

2  to the west. Lowe’s application simply

3  dismissed this area as industrial 

its

4  original zoning 

even though it has been

5  reclaimed and operated as a very popular

directly abutting the

entrance road to that

these neighboring uses

County Board Committee

rejecting

this site.

The record demonstrates that the

station is incompatible

will adversely impact

•    There was much

ive impact that the

properties, such as the

Oaks and the Hollows

se, dust, litter and

the County Board Siting

on the application, the

Page 110

site

conserv

McHenry

8  its own

site.

ation area for many years. The

County Conservation District provided

resolution objecting to the proposed

The Hollows is a highly sensitive use

site and the long

site. Concern for

was noted by the

in their votes

proposed transfer

with the area and

surrounding properties

testimony on the negat

station would have on

Plote property, Bright

in terms of odors, noi

traffic. As noted by

Committee in its vote

Page 111

1  concerns regarding impact were substantiated

2  by Lowe’s own application which included a

3  study of the effect of other transfer

stations on property values. Only one

5  example could be found in the entire state

where a station was sited near a residential

7  area. And as noted by the County Committee,

B  that study 

Princeton Village near the

Northbrook transfer station in Northfield

10 Township 

---

showed a decrease in property

11 values for many homes, and 18 of 37 homes

12 with appreciation rates under one percent,

13  this despite the fact that appreciation rates

14  in North Suburban Cook County are generally

15 five to six percent, and Northbrook itself as

16 high as 16 percent. Princeton Village

17 demonstrates the likelihood with serious

18  impacts where residential areas are so close.

19

The County correctly found that

20 neither Criteria 2 nor 5 was met, because

21 this transfer station is not located or

22  designed so as to protect the public health,

23  safety and welfare. The Lowe site itself is

24 very small 

only 2.64 acres 

leaving no

Page 112

1  room for a buffer zone. Because of its small

size, its stormwater is proposed to be

infiltrated into the groundwater by an

infiltration basin. Expert testimony showed

5  that the stormwater would carry contaminants

6  and that the groundwater into which those

7  contaminants would be infiltrated flows at a

8  very rapid rate directly into Lake Plote on

the Plote property, Lake Atwood on the

10 McHenry County Conservation District property

11 and then to an area of wetlands designated as

12  irreplaceable and unmitigatable by the Army

13 Corps of Engineers. Mr. Lowe’s application

14 did not identify these impacts. It didn’t

15  even identify the downgradient water bodies

16  impacted by the proposed transfer station.

17  In addition to these flows through the

18  infiltration basin, any spills or drips from

19 garbage or transfer trucks on the site access

20  road will go to an existing stormwater pipe

21 which discharges to the McHenry County

22  Conservation District.

The County also found that Lowe had

24 not adequately designed or proposed to

Page 113

1  operate the site. The record is full of

2  support for that finding. The site has no

3  sprinkler system and no firefighting water

4  supply. Testimony and modeling showed that

5  the site is so small that the large transfer

trailers will not be able to turn the corners

into the site or the corners into and out of

8  the transfer building. It was clear, and

9  Lowe’s witnesses agreed, that the goal had

10 been to try to design the transfer station

11 onto property he owned, not to find an

12  environmentally good site for a transfer

13  station.

14

The County also properly considered

15 Mr. Lowe~s experience. Evidence was also

16 presented at hearing about Mr. Lowe’s

17 operating experience, or lack thereof. Lowe

18 admits he has no experience. His operating

shell corporation, Lowe Transfer, has no

20 experience, no employees and no money. Lowe

21 admitted at hearing that Lowe Transfer is set

22  up to shield Lowe from liability if anything

23  goes wrong. To excuse his own lack of

24  experience, Lowe contended he would hire

Page 114

1  people who did have experience, such as his

2  consultants. Again and again, however, he

3  overrode the statements and promises of his

4  own consultants, casting doubt on his

5  willingness to hire or follow expert advice,

S  even if that could make up for his lack of

7  experience.

8

Finally, Mr. Lowe currently

operates a concrete and asphalt recycling

10  facility next to the site. Testimony showed

11  that he does not have a permit for that

12  facility under Section 21(d) of the

13  Environmental Protection Act. Testimony

14  showed his operations are also not in

15  compliance with Section 22.38 of the Act

16  regarding construction and demolition debris

17  operations. Lowe’s testimony revealed a

18 number of activities by his current

19

operations which present environmental

20 compliance issues, which Lowe was either

21 unaware of or unconcerned with. Lowe has not

22  explained how the McHenry County Board’s

23  consideration of his background and

24  experience with respect to Criteria 2 and 5

Page 115

1  was improper, even though his petition states

2  that this is an element of his appeal. The

3  statute specifically says that background and

4  experience are relevant to Criteria 2 and 5.

S  Facilities like transfer stations may have

serious environmental consequences when their

owners or operators don’t know what they’re

8  doing or don’t take compliance seriously.

Mr. Lowe’s operating history raises grave

10 doubts about his willingness and his ability

11 and/or interest in operating a station in

12

compliance with environmental requirements.

13

Section 22.14 of the Act prohibits

14 establishment of a garbage transfer station

15 at the proposed location. Finally, the Board

16 should note in Section 22.14 of the Act

17 prohibits establishment of a garbage transfer

18 station within 1,000 feet of a dwelling or

property zoned as

20

HEARING OFFICER HALLORAN: Sir 

21 Mayor 

22

MR. LAMAL: Yes?

23

HEARING OFFICER HALLORAN: Mr. Lamal?

24

MR. McARDLE: I’m sorry. I need to

Page 116

1

make an objection.

2

MR. LAMAL: 

That’s okay.

3

MR. McARDLE: 

The discussion here

centers around Section 22.14. This was

S

discussed over objection at the County Board

level regarding the thousand-foot

restriction, and I’m making the same

8

objection as to relevance in this proceeding.

HEARING OFFICER HALLORAN: Mr. Helsten?

10

MR. HELSTEN: Again, I stand on 

11  the County stands on its previous position

12 that so long as comments that are being made

13 here are relevant to the evidence that has

14 been introduced in the underlying record and

15 documents that were introduced in the

16 underlying record, it’s appropriate to hear

17 those comments. So far, this gentleman’s

18

comments, I think, have been directly

19 relevant to the underlying record. And,

20 accordingly, he can make his argument and

21

make his comment about what the significance

22

of those matters in the underlying record is.

23  Whether 

or not 22.14 is applicable or not, as

24  I will say in my statement, is really 

is

Page II?

not relevant. It’s the potential relevance

2

or the potential applicability or the

3  potential import of 22.14 as it relates to

4  Criterion 3 overall. That is very relevant,

5  and that’s why I think this is fair game.

HEARING OFFICER HALLORAN: Thank you,

Mr. Heisten.

8

Mr. McArdle, I’m going to overrule

your objection. Mr. Lamal may proceed;

10 however, I would ask the Board to disregard

11 any statements or testimony by Mr. Lamal that

12 was not generated in the record below.

13

You may proceed, sir.

14

MR. LAMAL: Thank you. May I go

15 back to the beginning?

16

HEARING OFFICER HALLORAN: The

17 beginning of 

18

MR. LAMAL: No, no. Just the

19 beginning of this little section.

20

HEARING OFFICER HALLORAN: You

21 scared me.

22

MR. LAMAL: One sentence.

23

HEARING OFFICER HALLORAN: Yes, you

24

may.

Page 118

1

MR. LAMAL: I 

didn’t mean to scare

2  you.

3

Finally, the Board should note that

4

Section 22.14 of the Act prohibits

5

establishment of a garbage transfer station

within 1,000 feet of a dwelling or property

zoned residential. The Lowe property is

B  adjacent to the Plote property which is zoned

residential. It is also only 1346 feet from

10

the longstanding and outstanding Bright Oaks

11 residential subdivision. Knowing of the

12  attempt by Plote and Cary to develop the

13  Plote property, Mr. Lowe tried to get his

transfer station sited before the Plote

15

property could be annexed by the village and

16

zoned residential. And the record shows he

17  tried to get the County to keep his

18  application preparations secret. While Lowe

19 is not always clear about his theories, we

20 understand from the record below that he

21 believes that compliance, or noncompliance,

22

with Section 22.14 and his ability to get an

23  IEPA 

permit for his proposed facility is

24

irrelevant in siting. We simply disagree.

Page 119

1

The immediate proximity to residential areas

2

is an important question which is extremely

3

relevant under several of the siting

criteria, including Criterias 2, 3 and 5.

S

The County Board’s decision was

reached after an extensive hearing which

assembled a record providing overwhelming

8  support for its rejection of siting. The

County Board’s decision is clearly in

10 accordance with law and supported by the

11 manifest weight of the evidence, and we ask

that it be affirmed.

On behalf of all of the residents

14 of the village of Cary, thank you.

15

HEARING OFFICER HALLORAN: Thank you,

sir.

17

Mr. McArdle?

18

MR. McARDLE: I just have one area

19

of questioning, if I could.

20

STEVE LAMAL,

called as a witness herein, having been first

22

duly sworn, was examined and testified as

follows:

24

Page 120

1

DIRECT EXAMINATION

2  BY MR. McARDLE:

Q.  You were at some of the hearings,

right?

A.  Iwas.

Q.  And were you there when Dave Plote

testified?

A.

I was not.

DId you read the transcript?

10

A.

No.

11

Q.  So you wouldn’t recall him

12  testifying that it was not a good idea to

13  develop residential property next to 1-2

14 heavy industrial?

15

A.  I don’t know that he made that.

have counsel here if you would like to ask

that question of counsel

Q.

No,

just want to know if you

19 heard that

20

A.

I did not hear the comment.

21

MR. McARDLE: And that would be at

22

C210, page 34, thank you.

23

HEARING OFFICER HALLORAN: Mr. Heisten?

24

MR. HELSTEN: Nothing.

Page 

121

1

HEARING OFFICER HALLORAN: Thank you,

2

Mayor. You may step down.

3

MS. ANGELO: As the attorney for

4

Cary, could I ask that the copy of the

5

testimony which includes the citation to

6

the record that Mr. Lamal was relying on

7

be included as a written comment?

8

MR. LAMAL: That’s what I gave

9

him.

10

HEARING OFFICER HALLORAN: I have a

11

statement. I was going to enter it as

12

Public Comment No. 3.

13

MS. ANGELO: Thank you.

14

HEARING OFFICER HALLORAN: Thank you

15

very much.

16

MR. LAMAL: All right. Thank you.

17

(whereupon, said document

18

was marked as Public

19

Comment Exhibit No. 3,

20

for identification, as

21

of 8-14-03.)

22

HEARING OFFICER HALLORAN: I have

23 no more witnesses on the list 

- -

or, excuse

24 me 

public comment. Would anybody like to

1

2

5

B

11

12

13

15

Appleton.

Cary, and

moved to

it’s wor

ashamed,

going on

You come

else would like to

comment or testify?

sir? You in the

APPLETON: I just

MR. APPLETON: My name

I live at 117 Lloyd S

I lived in Cary since

Cary, we bought a house

th about $15,000. And I

and I’m still a shamed,

and what has been going

into 14 from the south,

Page i22

take a

ythe

ck

in any

up

make a public comment, and then we’ll

po1i between the attorneys and possibl

audience whether we want to take a gui

lunch or another 15-minute break? But

event, anybody          

step

here and give

Yes,

MR.

blue

want

shirt?

to make

a few comments.

HEARING OFFICER HALLORAN: You want

to get sworn under oath or just comments?

MR. APPLETON: I’ll swear under

oath.

(Whereupon,

PUBLIC

the witness was duly sworn

COMMENT BY ROBERT APPLETON

17

18

19

20

21

22

23

is

tree

1961

for

was

of

on

Robert

tin

When I

worth 

very

what 

‘

s

Route 14.

if you look

24  to the left, you 

see manufacturers of septic

Page 123

s. I’ve been upset about that for years.

city never did anything.

And then you go up to Thornton’s,

and everything is pretty normal 

normal

development. And then north of Thornton’s,

I’ve been very upset and embarrassed about

all the things that go north up until the

county or the 

well, it’s up to the north

of there. Including that is Mr. Lowe’s

current operation.

Now, 

I will say that his current

s

done a good job on hiding it.

erm there, but that’s only part

of Cary who

to make a

wants to do this to the people

have given him the opportunity

tank

The

operation,

He’s built

he’

ab

of it. There

property that

you can come

easily $500,0

way to treat

this type of

of Cary? No.

assume, a fai

he’s lived in

‘s other things adjacent to his

I’m really embarrassed. Now

into Cary and you can spend

00 on a house. Now, is this a

the citizens of Cary to have

scenery as you come and go out

And Mr. Lowe has made, I

rly decent living all the years

Cary. And I’m shocked that he

Page 124

1  living all these years.

2

And he’s not a young man anymore,

3  as I’m not, but it’s hard to tell what’s

going to happen. And I don’t know that he

5  has family members that would take over and

6  run it. He may promise you the moon right

7  now. But how much longer is he and I going

8  to be around, particularly him, to run this

the way he said he wants to? So I’d just

10 like to make my objection to the 

because

11 of the scenic view and the atmosphere that’s

12 already there.

13

Thank you.

14

HEARING OFFICER HALLORAN: Thank you.

15

Mr. McArdle?

16

ROBERT APPLETON,

17 called as a witness herein, having been first

18 duly sworn, was examined and testified as

19 follows:

20

DIRECT EXAMINATION

21 BY MR. McARDLE:

22

Q.  Sir, where do you live?

23

A.

I live at 117 Lloyd Street, which

24 is directly south of the high school. It’s

Page 125

about 

almost a mile from the 

it’s not

2  where I live. It’s the view that we have to

look at.

4

Q.  So you live about a mile from the

proposed site?

A.

Yes, right.

7

Q.   And did you make any comments at

8  the McHenry County Board proceeding?

A.  No. I’m in Florida a good part of

10 the year.

11

Q.  Did you go to any of the

12  proceedings?

13

A.

No, I did not.

MR. McARDLE: Thank you.

HEARING OFFICER HALLORAN: Thank you,

Mr. McArdle.

17

Mr. Helsten?

18

MR. HELSTEN: Nothing.

HEARING OFFICER HALLORAN: Sir

20

Mr. Appleton, I do have a question.

21

Earlier in the hearing, you did have

22

issues with the way the hearing was

23

proceeding. Are you satisfied at this

24

point?

Page 126

1

MR. APPLETON: Oh, yes. It’s much

better. We’re getting along. We can

hear, and we can understand.

4

HEARING OFFICER HALLORAN: Thank you.

5

MR. APPLETON: And it’s nothing to

6

do with the way you were using the

7

microphone. It was the acoustics in this

8

room. We should have used the auditorium

in the high school, because this is

10

terrible here.

11

HEARING OFFICER HALLORAN: But this

12

is

you’re satisfied now?

MR. APPLETON: Yes.

14

HEARING OFFICER HALLORAN: I just

wanted to get 

okay. Thank you very

16

much, sir. Thank you.

17

All right. Anybody else wish

18 yes, ma’am?

MS. PRITCHARD: 

just have a

20 public comment. I don’t know if it should be

21 on the record or not.

HEARING OFFICER HALLORAN: It will

23 be on the record. 

you want to get sworn?

24

MS. PRITCHARD: I don’t care.

Page 127

1

HEARING OFFICER HALLORAN: Okay.

2

MS. PRITCHARD: Karen Pritchard.

3

(Whereupon, the witness was duly sworn.)

4

PUBLIC COMMENT BY KAREN PRITCHARD

5

THE COURT REPORTER: And can you

please spell your last name for me?

7

MS. PRITCHARD: P-r--i-t--c-h--a--r--d.

8

I live at 7510 South Rawson Bridge

Road in Cary, right at the corner of Three

Oaks and South Rawson Bridge Road.

11

I’m going to stand.

12

HEARING OFFICER HALLORAN: You may

13  okay. You can stand.

14

MS. PRITCHARD: I’m a graduate from

Glenbrook North High School,

1985.

All four

16 years that I went to Glenbrook North High

17 School, the first six to eight weeks of

school 

and this can be 

you can call the

19 high school, if you want 

outside

MR. McARDLE:

Objection

- -

21

MS. PRITCHARD: 

gym for six to

22 eight weeks 

23

HEARING OFFICER HALLORAN: Excuse me.

MR. McARDLE:

I assume, ma’am, that

Page 128

1  you’re going to be testifying about an event

2  that took place earlier in your life,

unrelated to this 

- -

4

MS. PRITCHARD: No, it’s very much

related.

HEARING OFFICER HALLORAN: Was it

7  in the record below?

MS. PRITCHARD:

I was in

Northwestern Hospital 

and I could back

10 that up

for six weeks during these trials.

11 I couldn’t come to them because I was

hospitalized for my disease.

HEARING OFFICER HALLORAN:

Okay.

MS. PRITCHARD:

Okay?

HEARING OFFICER HALLORAN:

16 appreciate that.

So Mr. McArdle...

MR. McARDLE:

Well, you know, I’ll

let her go a little

further.

20

HEARING OFFICER HALLORAN: Thank you.

21

MS. PRITCHARD: That’s fine.

22

Anyway, the first usually four to

23 five to six weeks of school in August 

- -

we

24 always started at the end of August going

Page 129

1  into the beginning of September 

if we had

2  morning gym in our semesters, sometimes they

3  had to cancel and we had to have it inside

4  because of the stench.

MR. McARDLE: Objection.

You’re talking about another

7  facility that smelled, according to your

8  perception.

MS. PRITCHARD: Well, you read a

10  letter and confused everybody about the

1.   Glenbrook and the Northbrook facilities.

12 That’s what I’m trying to go to.

13

MR. McARDLE: I’m objecting to this

testimony. It’s outside the record. It’s

15 irrelevant. And it’s going to prejudice the

16 Board.

17

HEARING OFFICER HALLORAN: Mr. Helsten?

18

MR. HELSTEN: As I understand the

19 witness 

and I may be wrong 

what she is

20 attempting to comment upon is one of the

21 facilities 

either one of two things.

22  Either one of the two facilities that

23  Mr. McArdle referenced in his opening

24  statement or generally the phenomenon of odor

in that same area from transfer

2  think this is a classic example

both

ion in

Board 

this, e

andl

t what

that Mr

tement.

I assum

to say,

and here

think t

Page 130

stations. I

of why the

in his 

in

limine and now is

I think it’s

specially if this

‘m not sure she

she’s commenting

McArdle brought up

I heard her say

e where she’s going

no, I don’t want

‘s my rebuttal to

hat’s fair comment

the

have

County’s position

Mr. NcArdle’s mot

correct. If the

important to hear

witness verifies

is

verifies tha

upon is something

in his opening sta

the two letters.

here, she’s going

those facilities

what she said. I

under the case law

Illinois Administra

been promulgated to

the Board does

and under the rules

tive Code Rules that

govern this facility.

What

matter.

is the

well ab

germane

underly

with that is another

And, again, the County’s position

hearing officer and the Board are full

le to sift through what is directly

and relevant and applicable to the

ing record and what is not. That’s

Page 13~

1  why I think it should be included and heard.

2

HEARING OFFICER HALLORAN: Mr. McArdle,

3  any rebuttal?

4

MR. McARDLE: Yes. There is no

S  case law about this subject that we’re

6  talking about. There’s no case law that

7  gives us any direction as to what’s

8  admissible in this, quote, hearing, close

9  quote. What we do know is the statute

10  requires it to be limited to the record. And

11 this lady has admitted she didn’t go to the

12  proceedings. And the discussion she’s about

13  to have is not part of the record. It’s

14  outside the record, and it will be

15 prejudicial to the judges in this case and

16 the judges that are the PCB that are

17  listening to this transcript. And so I move

18  to strike what she said.

19

HEARING OFFICER HALLORAN: I don’t

20  think the Board will be prejudiced. I will

21 sustain your objection. However, I will

22  allow her testimony to come in as an offer of

23 proof. They can take a look at it. They can

24 take a look at the record below and see if,

Page 132

was in the record. The Board

that.

I sustain Mr. McArdle’s objection.

ou may speak as

can take a look

whether or not 

MS. PRITCHARD:

on

actually,

HEARING OFFICER

MS. PRITCHARD:

bigger than the site he’s

HEARING OFFICER HALLORAN:

sorry. You know, I didn’t get your name.

MS. PRITCHARD: Karen, with a K;

Pritchard 

P-r-i-t-c-h-a-r-d.

HEARING OFFICER HALLORAN: Okay.

MS. PRITCHARD: Okay. I wasn’t

going to talk, but I just feel that there was

confusion about the Glenview facility and the

Northbrook facility. We also had, I have to

say, down Techny Road is where when we were

younger, we, all as teenagers, hung out.

There were rats bigger than our poodles that

crossed that street. I’m more concerned

in fact, it

will decide

However, y

The Board

know, see

an offer of proof.

at it and, you

something

I’m going to say

in your defense.

HALLORAN: Miss

That site was a

lot

I’m

Page 133

1  about the welfare and the health of the

people that live within the couple miles of

what this facility is going to be. This

4  facility I feel is too small of an area to be

5  doing this and needs to be on more property

and away from human beings. I, for one, that

7  has an autoimmune disease 

severe,

8  terminal 

- -

would not want to live anywhere

near you. And I thank God I bought my house

10  where I did, because if I lived where I live,

11

would just abandon my house. I wouldn’t

even care if I sold or not. I would abandon

and leave, because I’m tired of my disease,

14

and environmental impact plays a big role in

15 my disease. And where I grew up, in my mind

16 and in some of my doctors’ minds, has

17 something to do with my autoimmune disease.

18

That’s all I have to say. Thank

19 you.

20

HEARING OFFICER HALLORAN: Thank you,

21 Miss Pritchard.

22

Mr. McArdle, any questions?

MR. McARDLE: Yeah, I have a couple

24 questions.

Page 134

KAREN PRITCHARD,

called as a witness herein, having been first

duly sworn, was examined and testified as

4  follows:

DIRECT EXAMINATION

6  BY MR. McARDLE:

This Techny Road that you lived

8  nearby or on, was there a landfill near

there?

Yeah.

It’s right at Techny and

Waukegan Road.

It’s closed now.

It’s huge.

And that’s what you were referring

13 to 

Absolutely

when you said there was a

problem?

Absolutely.

And then Glenbrook

North High School was about three-quarters

a mile away from that site.

20

So you’re talking about the smell

from the landfill?

22

A.  Absolutely. If it was morning

and August is still hot, September is still

24

hot

there were some days we had to have

Page 135

1  gym inside because of the stink.

MR. McARDLE: 

Thank you.

3

HEARING OFFICER HALLORAN: Mr. Heisten?

MR. HELSTEN: Nothing.

5

HEARING OFFICER HALLORAN: Thank you,

6

Miss Pritchard.

7

MR. McARDLE: For the record, may I

S

just make my motion to strike the entire

testimony on the basis that I already

10

indicated?

11

HEARING OFFICER HALLORAN: Okay.

12

And on the basis I’ve already indicated,

13

I’ve taken it; I’ve sustained your

14

objection.

However, I will not strike

15

it. I will keep it as an offer of proof,

16

and the Board will do with it as they so

choose. Thanks.

18

Any other witnesses, please?

19

All right. We can go off the

20 record for a minute.

(Discussion held off

22

the record.)

(A short break was had.)

24

HEARING OFFICER HALLORAN: Okay.

Page 136

1  Do we have any more 

before we get started

2  again, do we have any more members out there

3  that would like to make a statement or

4  testify?

5

(No response.)

6

HEARING OFFICER HALLORAN: I see no

hands, therefore, Mr. Helsten, you’re on.

MR. HELSTEN: Thank you.

9

Mr. McArdle, Miss Turnball,

10 Mr. Lowe 

wherever you are 

Mr. Halloran,

11 members of the public, I will try to be

12 brief. I will try simply to respond to the

13 points that Mr. McArdle raised.

14

Point number one, Mr. McArdle says

15 the record shows no basis for the decision.

As he, himself, said, there were 11-plus days

17  of testimony. The transcript will indicate

18 when we started each day and when we ended

each day. That transcript will reflect that

20 on many days we were in session taking

21  evidence nine, ten and 11 hours. That, as

22 Mr. McArdle said, generated 

it’s

uncontroverted 

generated over 4,000 pages

24 of testimony.

Page 137

21

22

23

24

of the 101 exhibits.

Also, that

that

d

of

In addition,

as Mr. McArdle

accurately

represented,

we have over 100

exhibits. I believe there are 101 exhibits

if I’m not mistaken. I would submit, number

5  one, it would have been physically

impossible,

logistically

impossible,

for the

County to have reproduced for all Board

Members 4,000 pages of transcript

and copies

is not 

what the law says

the Board must do. The law does not say

the Board must 

each member of the Boar

must individually be provided with a copy

the record. Both the statute and the case

law says the record in the underlying

proceeding must be made available,

not only

to the County Board, but to the public.

this case, there is no evidence that it was

not presented to the County Board, made

available

to the County Board for its

inspection and consideration or to the

public. I think Mr. McArdle’s conceded

And even if he hasn’t conceded that, there is

nothing in the record that shows otherwise.

that

Page ~38

Mr. McArdle did not choose to make this a

fundamental fairness case, He has a

reputation as being the most formidable

litigator in this county. I’m sure if he

thought he could have made the case that

record was not available, Hollow A, B, C

case, that some portion of the record was

available for the decision—maker or the

public to look at, he would have pursued

on an evidentiary basis in this

do so. I submit he did

he knows there’s no basi

Now, Mr. McArdle asked

rhetorical question what did the

upon? We need only look

which he attached to his

That resolution, which i

which was passed by the

siting approval, says 

whereas after a review

all expert testimony,

exhibits, the hearing

public comments, the

fact and conclusions

did not

because

the

not

that

hearing. He

not do so

s for that.

the

Board rely

at the resolution

petition for review.

s

the resolution

County Board denying

and I quote

of the application,

all lay testimony, all

record as a whole, all

proposed findings of

of law submitted by

Page 139

1  various parties herein, as well as the report

2  of the McHenry County staff 

and I would

3  emphasize the following 

—-

the record of the

4  proceeding as a whole. And after considering

S  all relevant and applicable factors and

6  matters as well as the committee’s findings

7  and recommendations herein, the McHenry

S  County Board hereby finds as follows. That,

9  Mr. McArdle, and that, Mr. Applicant, is what

10  the County Board relied upon. Consistent

11 with the E & E Hauling case, consistent with

12 the Beasely case and consistent with the

13  Sierra Club Wood River case, the Pollution

14  Control Board and the reviewing courts have

15  said all you need to do is indicate what you

16  relied upon and then indicate what your vote

17  is on each of the criterion. There need be

18 nothing more 

there need be nothing more

19  than that.

20

If we follow Mr. McArdle and the

21 Applicant’s rationale, what we get into is a

22  situation where each County Board Member 

23 that each Board Member 

all 20-some of the

24 County Board Members 

would have been

5

6

59, 91, 92, 1

8  County Board

9  Board Member

10 your opinion,

11  on this crite

12  the testimony

Day

of the

14  through 20,

15  Exhibits No.

16  County Board

17

Tha

20

21

22

24

that

18,

00 and 101.

Member No.

No. 2 says

but what

non was

in this

testimony.

Exhibits No.

80 through

Member 3.

t is not

I base my opin

52, 53, 73, 79

That might be

1. Where County

well, that might

based my denial

ion

86,

be

upon

3°f

Page 140

1  required to articulate on the record, oh, no,

2  I think this is the one portion of this day’s

testimony and the next portion of the next

4  day’s testimony and the next portion of the

next day’s testimony

on, plus Exhibits No.

I

not

reg

Day

and;

And

t

85.

1, but Day

Day 5, not

Exhibits No. 1

hrough 60,

Then we go into

the Pollution

18 Control Board and the courts have wisely said

19  that is not required, so long as 

also, the

law, both 39.2 and the ordinance which

Mr. McArdle referenced in his petition,

simply say there must be 

the basis for the

decision must be articulated. State law 39.2

and the ordinance do not say the evidentiary

Page 141

1  basis must be articulated in detail. The

2  factual basis relied upon must be articulated

3  in detail. There’s a good reason for that, I

4  would submit. That’s because the legislature

5  and the County and the Pollution Control

6  Board in its decisions in siting those

7  matters realize that its untenable, unwieldy

S  and impractical to go through in detail on

9  the record what each Board Member may have

10  relied upon.

11

The important thing is 

the

12  touchstone requirement is 

was the record

13  as a whole considered in making the vote?

14  The official resolution passed. The findings

15  of the County Board make it clear that they

16  relied upon the record as a whole. So I

17  think that dispenses with that argument.

18

Mr. Lamal stole my thunder in

19  several regards, but he shouldn’t feel bad.

20  I’ll just touch upon some of the points that

21 he made as well as some of the points the

22  other members of the public made. I think

23  Mr. 

no, it was Miss Johnson. Miss Johnson

24  also adequately points out, hey, this was a

Page 142

lengthy hearing. Again, it was many days.

There were many exhibits, 

as

she pointed out.

The record will make clear the hearing

4 officer

would indicate every day not only

what members of the committee were present

but what members of the County Board were

present. The record will show that on many

days, not only was the committee there, there

9 were

other County Board Members personally

10  there.

11

If

Mr.

McArdle and the Applicant

12 want

to know what did they base the record

13  on 

their decision on, I would suspect it

14  would be the fact that they were there every

15  day listening to the testimony, reviewing the

16  exhibits that were introduced. That would be

17  the basis. As Miss Johnson said 

and,

18  again the record will indicate what committee

19  members were there, for how long they were

20  there. The committee attended. The record

will show the committee attended the

proceedings religiously and diligently. They

were 

there on an ongoing basis every day.

In addition, as Miss Johnson

4  overal

Board

Appli

7  words,

protra

9  doesn’

10  to do

11  commit

12

have to

Johnson,

all that

So there

could

well,

in the

forwarded

denat ion.

t was

disc

Well

All

findings of

anscript of

ttee. Now,

That isn

the

the hearing

that isn’t

‘t all they

isa

“x”

Page 143

1  indicated, their findings 

they deliberated

2  on the record, and the record of those

deliberations

was filed as part of the

to the County

So when the

1 record and

for its consi

cant asked wha

there was no

cted debate.

t need to be.

the basis, in other

ussion, there was no

number one, there

the Applicant needs

is look at the

tee and the tr

if held by the commi

all they relied upon.

15

16

17

18

19

20

rely upon.

But, again, as Miss

a member of the public, pointed out,

was in front of the County Board.

was an ample basis upon which they

make their decision. Mr. NcArdle said,

only a small percentage of the people

county overall objected to this.

21 That’s not the

22  satisfaction of

standard.

The

the criterion.

standard is

If it was how

many people objected, what we would have

contest where the applicant would bus in

1  numb

2

3  Who

4  obj

5  tha

7

S

Page 144

er of people, the objectors would bus in

number of people. We’d count heads.

ever had the most people there either

ecting or supporting it would win, and

t would be it.

the

will

upon

peopl

made

And

we

‘

1

the

That,

legislature

take place

the number

e is made

however, wisely,

is not how

has contemplated the process

The decision is made not

of people that object.

The

upon the

the decision is

upon the evidence that

when weighed by the dec

1 get into this a littl

credibility and weight

evidence that’s produced.

Now, Mr.

statement, has, in

Pollution Control

Again, I would res

Pollution Control

decisions, it does

does not stand as

must defer if the

evidence supports

McArdle,

essence,

Board to

pectfully

Board has

is introduced.

ision-maker 

e more later 

given to that

in his opening

urged the

retry this

submit and

made clear

and

case.

the

in its

not retry the case. It

a substitute judge. It

manifest weight of the

the decision made by the

15

Page 145

1  local unit of government. It will and should

2  defer to those decisions. Again, based upon

what I said earlier, there is a legion of

4  evidence that has been presented here that

S  would support the 

and the record as a

whole 

11-plus days of testimony and

hearing more than I, and close to 25 years of

S  experience in this area, have ever seen at a

9  transfer station hearing. I have never seen

10 4,000 pages of transcript and 101 exhibits.

11 A very complete and very voluminous record

12 was developed here for the County Board to

13

consider.

Again, the Pollution Control Board

14  should not and I do not believe they will

15  retry the record and place themselves in the

16 position of the triers of fact. That would

17 not be right.

18

Mr.

McArdle 

or the Applicant’s

19  third argument is essentially if there is

20 some evidence that supports my position, you

21 have to consider that to the exclusion of

22  everything else. What Mr. McArdle did today

23  on behalf of the Applicant 

is a very good

24  advocate, is an excellent advocate 

is he

went nugget hunting,

his position. I sit

I’ve got to find some

position and I better

I better hammer these

submit, as the public

every nugget that Mr.

there is probably in

hold to the contrary

contrary. That1s why

wisely determined tha

board, the local unit

will not take these i

Page 146

which I do when I’m in

there and go, oh, boy,

nuggets that support my

pound those home hard.

home hard. I would

comment showed, for

McArdle brought up,

the record 40 or 50 that

or indicate to the

the legislature has

t it will be the county

of government,

solated nuggets.

and

the

nsider

e

1

2

4

5

S

11

12

13

will not

consider

take

them

that

Again,

these isolated nuggets

outside the context of

record as a whole, but rather will co

the record as a whole. That’s why th

resolution passed by the County Board

includes an express finding that they

considered the record as a whole in making

their decision.

Now, Mr. McArdle emphasized that

the County solid waste management plan makes

it clear that the transfer station should be

Page 147

1  located in a heavily populated urbanized

2  area. The implication there is if you locate

a transfer station in a heavily urbanized,

4  heavily populated area pursuant to the County

5  plan, you’re automatically home-free.

However, that’s not the case. While it’s

7  true that transfer stations by logistical

necessity are located where the waste is

generated, by the same token, any proposed

10

facility

must comport with the criterion.

11  It’s not enough to simply be in a heavily

12 urbanized area, heavily populated area close

13

where the waste is generated and where the

14 waste centrally is. Also, you must ensure,

15  as Criterion 3 states, that you’re compatible

16 with the surrounding area. Also as Criterion

17 2 states in part, you must be so located so

18  as to protect the public 

I should have

this memorized I’ve done it so many years 

20  public health, safety and welfare. In this

21  case, again, I would submit and as Mr. Lamal

22  touched upon, if we only consider 

let’s

23  assume we want to take Mr. McArdle’s nugget

24  theory that focus on my evidence to the

Page 148

1  exclusion of the record as a whole, and if

2  you look at my evidence only, it supports the

3  granting of that. As Mr. Lamal pointed out,

the Applicant’s own witness on property

5  values 

on the impact on property values 

and the Applicant’s own exhibits 

most

7  notably the Princeton Village study 

showed

8  that 18 of 37 units in Princeton Village,

9  which was next to a transfer station, had an

10  appreciation in real estate value of under

11  one percent, which appeared to be an

22  aberration when compared to the surrounding

area. I recall 

if the Applicant wants to

14  talk about what was the basis of the

15  committee and the County Board, I recall in

16  the committee deliberations, one County Board

17 Member, Mr. Clausen, specifically saying, I

18  relied upon this. To me, the Applicant’s

19 witness disproves their own case. And that’s

20 my position. As Miss Johnson said, that

21 record was carried forward and to the County

22 Board as a whole. And on that one basis, I

would submit that basis and that basis alone,

24 the County Board could have said, yes, you do

Page 149

1  not meet the Criterion 3 because you have not

2  demonstrated that impacts upon property

3  values have been minimized. Although I would

submit the record is replete with other

5  evidence that Criterion 3 was not met. As

6  one of the members of the public that made a

properly zoned for the operations that are

presently there. Again, however, the statute

makes clear zoning is not the touchstone

focus here. It’s not the seminal focus here.

What is the focus is whether the proposed use

is compatible with the surrounding area.

That’s why 39.2 (g) makes very clear that

zoning is not the be-all and the end-all.

And properly so. You must look not at the

property itself, what you must look at under

7  public comment noted

S  experts 

I believe

there were many qual

10  testified on behalf

11  the testimony of any

12  supported the County

13 Mr. McArdle, on beha

14  emphasized the fact

there were many

it was Mr. Lamal 

ified experts that

of the objectors. And

one of which would have

Board’s position.

lf of the Applicant,

that his property is

Page

150

Again, I

Irrespect

argument,

to that.

the prope

proposed

eminent.

included

for some

had been

some time, the

for developmen

was annexed in

witnesses that

wants to say, well, my zoning

disregard the zoning status of

immediately surrounding

it.

the record was clear.

f the Section 22.4 setback

Board doesn’t even need to go

record was clear that zoning of

mmediately adjacent to this

ity that zoning as fl-i was

—1 designation had been

e comprehensive plan for C

This was not something t

d up at the last minute.

comprehensive long-range

t of Cary included this wh

as fl-i. There were two

testified that annexation

1  Criterion 2 and 3 is the location 

the

2  impact on the surrounding area. The

Applicant in a way I found it interesting

4  wants to have his cake and eat it too, wants

S  it

is

the

both ways,

proper, but

properties

think

ive 0

the

The

rty i

facil

AnIZ

inth

time.

ginne

ary

hat

For

plan

en it

22  zoning as R-

23 by the time

zoned R-l.

1 were eminent. As we

the record was closed,

Again, if Mr. McArdle

and

all know,

it was

urges the

Page 151

1  County to consider the status of his client’s

2  zoning, we must also consider the status of

the zoning of surrounding areas and what the

4  uses will be. Now, Mr. McArdle’s position

5  may have some 

or the Applicant, rather,

may have some minimal relevancy 

and,

again, I would emphasize minimal relevancy 

if this station was only going to operate for

one day, one week, one month or one year.

10 However, as the Applicant’s own proposal

11 indicated, this facility was proposed to be

in existence for at least 20 years and

13

probably 25 or 27 years.

That’s good solid

14  waste plan. You put it in there to satisfy

15  the long-range needs of the county. However,

16 where a facility is going to be in place for

17 25 years or 27 years, you don’t 

I would

18  submit the County Board should not focus upon

19 the zoning of the surrounding area just

20 today, but must look forward. Not only is

21 it 

may it look forward and consider what

22 the intended long-range use is of the

23

surrounding area.

I

would submit under that

24

statute and under the case law, it must

Page 

152

1  consider the long-range intended use of the

2  surrounding area when it considers Criterion

3 3

and when it considers the location element

4  of Criterion No. 2.

5

reference

said, you

Now, Mr. McArdle also made

to Mr.

know,

Nickodem’ s

even the obj

testimony and

ector’s witnesses

8   in part support our case. So the County

Board should have found in our favor on

20  Criterion 2 and Criterion 5. Again, I would

ii cite to the CDT case which I believe Miss

12 Angelo was even involved in as I recall from

13 my 

what I recollect of that case. In that

14  case, only the applicant put on evidence.

15 Nonetheless, the decision-maker, which I

16 believe was a downstate county board, said we

17 don’t care if the only evidence that was put

28  on was evidence by you. In that case, there

was not even evidence put on by an objector’s

group, which there was here. Volumes and

21 volumes of evidence put on by an objector’s

group. But I would submit that even if

Mr. McArdle and the Applicant had only put on

evidence, as Mr. Lamal pointed out, there

said was

4  the only

S  know wha

evidence

evidence

18

19

22

that put on that e

of fact, Section 3

the credibility of

don’t accept it.

you having met the

Mr. Lamal pointed o

days of testimony e

witness’s testimony

enough cracks that

have well said we

vidence. And as a matter

9.2 mandates us to weigh

that evidence, and we 

We just don’t accept it

criterion. Again, as

ut, there are in 11-plus

yen in Mr. McArdle’s own

it’s enough fissures,

the County Board could

don’t even need to listen

analysis.

said nobody

even

that

t

Page 153

1  were holes in that evidence. And in the CDT

2  case, essentially what the decision-maker

yes, we acknowledge that you were

one that put on evidence. But you

t? We’re not forced to believe that

We’re not forced to accept that

simply because you’re the only one

ust

as

to the objector’s testimony. We don’t

need to listen to the number of people

made public comment here. We just don’

believe it or we don’t believe that it

supports your case. We believe that there

are problems with your own

Now, Mr. McArdle

Page 154

1  contested here that the design of the

2  facility was proper, so we meet Criterion 2

and 5. That may be true, and I would still

4  argue 

I would still argue with Mr. McArdle

5  that there’s some room for disagreement if

Criterion 2 only related to design. However,

as Mr. NcArdle knows as the excellent

practitioner he is, Criteria No. 2

provides 

and I state 

the facility is so

10  designed 

design is only one of the

11  components 

located 

located is the

12  second component 

and No. 3, proposed to be

13  operated 

operations 

proposed operations

14  are the third component 

that the public

health, safety and welfare will be protected.

16  So that being the case, criterion 

even if

17 Mr. McArdle’s witnesses carried the day and

18  his impeachment of the objector’s witnesses

19  carried the day on the design issue, there’s

20 two other components which he did not

21 address, which are location and proposed

22  operation. Again, I’ve gone through some of

23 the testimony that supported the

24 determination on Criteria No. 3 that the

Page 155

1  facility would have a disparate impact on the

2  surrounding area, on property values or it

was not compatible with the surrounding area.

4  I would submit to this Board, submit to the

S  Applicant and to you, Mr. Halloran, that if

you don’t meet Criteria No. 3, you don’t meet

the component of No. 2 that says the facility

8  is so located so that the public health,

safety and welfare will be protected. So my

10  point is design is not the be-all and end-all

11  in determining whether you meet Criteria

12 No. 2 or whether you meet Criteria No. 5.

13

Moreover, as Mr. Lamal noted,

Mr. Lowe had an admitted lack of experience

15  in operating a Pollution Control facility.

16 That being the case, I believe the County

17 board that was admitted by Mr. Lowe in his

18 testimony in cross-examination and in direct

19 examination and was admitted by Mr. 

very

20 candidly. And I’ll give the Applicant,

21  Mr. McArdle, credit today. They were very

22  candid today and said he doesn’t have any

23  experience. That being the case, I believe

24 the County Board was well within its rights

Page 156

1  to say under Criteria No. 2, well, wait a

2  minute. It says proposed to be operated in a

3  manner in which the public health, safety and

welfare will be protected. They could have

5  easily found that 

an applicant that by his

own admission has no prior experience in

running pollution control facilities may not

8  be able to operate the facility so that the

public health, safety and welfare is

10 protected. Moreover, going to No. 5, which

11  states the plan of operations for a facility

12  is designed to minimize the danger to the

13  surrounding area from fire, spills and other

14  operational accidents. The Board could have

found, based upon Mr. Lowe’s lack of

16  experience, that you could have the best plan

17  in the world, but if you cannot pull the

18  trigger and you cannot implement, if you

19 don’t have experience in the area, then you

20  haven’t met 5 as well. Again, I would submit

21 the record has enough 

more than enough

22 evidence to support the Board’s determination

23 on that aspect of Criterion 2 and Criterion 5

24 as well.

Page 

157

management

recycling

very good

the Board

him by the

again, the

objectors’

attorneys

made it ci

experience

any experi

Now, on the unnumbered criterion,

Mr. Lowe

asphalt recycling, rock

and it appears Mr. Lowe i

businessman. And, yet, not

consider the cross—examinati

objectors’ attorneys. Okay

cross-examination by the

attorneys, by me, by County staff

and by the County Board Members

he doesn’t have any

area. He does not have

the area of operating a

However, over and above

said, there was

He referred to the

the objectors’ attorneys

Lowe’s present compliance

IEPA regulations, or,

1

2  again, yo

can’t get

4  he’s done

u can’t have it

up and tell us

in other areas

both ways.

about how good

of solid waste

a job

sa

have

on of

? Now,

ear

in

ence

that

that

in

transfer station.

that, as Mr. Lamal

cross-examination.

cross—examination by

on the issue of Mr.

with IEPA permit 

actually, technically, regulations of

Board concerning permits. There was a

considerable amount of cross-examination

the

by

Page 158

1  Ms. Angelo as to whether or not Mr. Lowe, in

2  addition to the air permit he had, needed

3  other solid waste permits. Now, whether or

4  not he did need or have those is not 

it’s

relevant, but not as relevant as the fact

that the County Board could have believed by

the cross-examination that if Mr. Lowe needed

the solid waste permit under Section 21 of

the Act, he didn’t have one. If Mr. Lowe

10 needed a permit, then also he was in

11 violation of the section the Mr. Lamal noted

12 his attorneys raised, which is 22.3 (a) of

the Act, which says you can only have a

14 general construction and demolition facility,

15  if you handle only that and exclusively

16 handle that and nothing else. But there’s

17 testimony in the record at cross-examination

18 designed to elicit from Mr. Lowe that, in

19

fact, he may be handling other things, which

20 would then prompt the requirement that he

21 have a permit. In turn, as Mr. Lamal said,

22 the objectors’ attorney brought out that,

23  well, Mr. Lowe, if you do, in fact, need more

24 than an air permit, if you do need permits

1  from the

2  not only are you

sections,

dumping.

5  analysis

absolutel

in taking

experience

9  management,

10 testimony w

11 anything el

12 concerning

business was

the Bureau of

that hearing,

contention tha

answers to Ms.

rather than him

compliance

Page 159

Bureau of Land and you have none,

in violation of these other

you could potentially be illegally

Again, we don’t need to get into an

of whether or not those permits were

y necessary. The point is Mr. Lowe,

the stand and touting his

in the area of solid waste

put the matter into issue. His

as relevant, I

se, to establi

compliance wit

think, more than

sh his mindset

h environmental

rule      

ross-examination by

Ms.

beli

obje

that

s. And inc

Angelo 

let me put it this way. I

eve it is the contention of the

ctors, based upon the cross-examination,

Mr. Lowe did not look into whether his

required to obtain permits from

Land. I think, sitting through

it was also the objectors’

t Mr. Lowe, based upon his

Angelo, should tell him when

he’s required to get a permit

doing a compliance audit or a

Page 160

1  evaluation to determine that. That being the

2

case, I think the Board, under the unnumbered

3  criteria, when considering No. 2 and No, 5,

again could have said the mindset of Mr. Lowe

5  in complying with regulations is somewhat

6  relaxed. Based upon that, we have no

7  confidence that No. 2, the facility will be

B  operated in a manner that the public health,

safety and welfare will be protected, or,

10 No. 5, that the plan of operations will be

11 properly carried out. Again, I would 

12  contrary to the Applicant’s assertion, I

13  think there is enough 

there is more than

14  enough in the record to show that the County

15  Board’s consideration of the unnumbered

16  criterion was proper and that there was

17

evidence in the record upon which they could

18  carry their determination under the

19  unnumbered criterion back to No. 2 and 5 and

20  hold that Mr. Lowe and the Applicant had not

21  satisfied their burden on Criterion 2 and

22  Criterion 5.

23

I only touch briefly as Mr. McArdle

24  did on the host fee argument number one, and

Page iÔi

1  we will go into this in our posthearing

2  brief. I believe we could impose it. The

3  Special Condition Provision of section 39.2

4  provides that the County Board may impose

5  such conditions as are reasonable and

6  necessary to accomplish the purposes of this

7  section, this section being the siting

8  statute. I would submit to you that,

9  Mr. Hearing Officer, that the touchstone of

10  Section 39.2 is minimization of impacts to

11  the environment, which includes 

and to the

12  surrounding area, which includes the County

as a whole. So we could have imposed a host

14  fee that was designed, as the record makes

15  clear, to reimburse the County for inspection

16  request, reimburse the County for other

17 oversight costs that may incur and, moreover,

18  to reimburse the County generally for overall

19  impacts that the County may experience as a

20 result of the facility being there.

21 Moreover, as I’ve said in the past in this

22  case, we still could have imposed it under

23  Criterion 8. Criterion 8 relates or

24  references the Illinois Solid Waste Planning

Page 162

1  and Recycling Act. That Act specifically

2  says that in considering a proposed facility,

a county may consider not only the

4  environmental 

potential environmental

5  detriments and enhancements of the proposed

6  facility, but also the possible economic

7  enhancements or detriments. So I think we

8  could have imposed it. However, we don’t

9  even get to us imposing it here. We didn’t

10  impose it. Mr. Lowe proposed it. I find it

11  interesting that the Applicant takes issue

12 with imposition of a post-benefit payment

13 when the Applicant was the one 

and its 

14  in a summary that’s offered it 

15 unilaterally offered it to the County. I

16 cross-examined Mr. Lowe and I established it.

Mr. Lowe 

and he was very candid and

18  forthright 

was your intention here to

19  reimburse the County or offset any impacts

20  that the County may experience? Very

21 candidly, he said, yes. I said, well, did

22 you do any study to determine whether the fee

23 of 40 cents that you propose per ton is

24 adequate or it’s roughly proportionate to the

Page 163

1  impacts that your facility would be creating?

2  Again, he said, no, we didn’t do any study.

And if the County 

if there’s something in

4  the record in this proceeding that indicates

5  it should be more than that, then I’m willing

6  to pay that, and I understand that that may

7  have to be increased in the future. I could

8  right now go to the exact sec

don’t think that’s necessary;

10  the posttrial brief 

where

11  those answers in response to

12  asked. That being the case,

13  the Applicant can now be held

14  about imposition of a payment

15 proposed unilaterally in his

16  did not impose it. We simply

17  it, clarified it and flushed

18  what the County staff did and

19  Board ultimately found what t

should be.

Lastly on that issue, I don’t think

And in  

posthearing brief,

Officer,  don’t think that

is right. It would have been

tion 

but I

I’ll do it in

Mr. Lowe gave me

questions I

I don’t see how

to complain

that he

application. We

further defined

it out. That’s

the County

he appropriate

22

24

payment

it’s right.

Mr. Hearing

whole issue

our

we

Page

164

1  right had Mr. Lowe received siting approval

2  and had, then, in turn, he been compelled to

pay that. But we don’t think, at this point,

4  it’s right or relevant, and it’s moot at this

point.

6

In total, Mr. Hearing Officer,

irrespective of what Mr. Lowe does there now,

8  irrespective of how well Mr. Lowe does what

9  he does there at his current facility now or

10 how he otherwise conducts his operation, and

11  that’s for the record as a whole to 

and

12 the decision-maker to determine. One thing

13  is clear, the fact that this facility

14 presently processes rock and asphalt 

15  reprocesses that 

is not directly relevant

16  to how Mr. Lowe will operate a transfer

17  station. Rock does not smell. Rock does not

18  rot. Rock is not protrusible. Rock does not

19 attract vectors. Same with asphalt. Garbage

20 does. That’s why the inquiry made by the

21  Board as a whole on this record here was

22 appropriate. Again, I have never seen a

23  record this voluminous or this complete in

24 any hearing. It is the position of the

Page 165

1

County Board that the record as a whole

2  overwhelmingly supports the decision made by

the County Board and the County Board

4 respectfully

asks the Pollution Control Board

to affirm its decision.

Thank you.

HEARING OFFICER HALLORAN: 

Thank you,

Mr. Heisten.

9

Mr. McArdle, rebuttal argument?

10

MR. McARDLE: I 

do. I wasn’t going

11

to have one, but since you went longer than

12

the 20 minutes, 1111 give a short one.

13

Mr.

Heisten constantly 

referred 

to

14  the County Board could have, would have,

15  should have. As far as 

16

HEARING OFFICER HALLORAN: Mr. McArdle,

17

we’re having

trouble hearing again, if you

lB could speak up. I apologize for

19

interrupting.

20

MR. McARDLE: The 

significance of

21

my comments regarding 

the

findings by the

County Board in a 30-minute meeting after

23 having this

voluminous transcript for two

24

weeks, unavailable to them other than in, you

Page 166

read it.

The County Board Members

MR. HELSTEN: I move to strike. I

move to strike that comment because there’s

no basis in the underlying record or the

record produced here that the County Board

Members did not consider the record as a

whole to the extent they deemed necessary.

As I indicated in my arguments, Mr. Hearing

Off icer, had Mr. McArdle had evidence of

that, he could have trotted up. He could

subpoena those Board Members, brought them up

today and asked them, five minutes each, what

did you consider? What didn’t you consider?

And how long did you consider it before you

voted? That’s the essence of the fundamental

fairness case, which Mr. Lowe did not 

or

fundamental fairness appeal which he did not

1  know,

2  Board

imposs

4  looked

5  exhibi

don’t

one location, and having 24 County

Members, we all know sitting here 

itls

ible for 24 Board Members to have

at that transcript thoroughly and

ts. We know that didn’t happen. I

know what they did, but they didn’t

10

12.

Page 167

1  choose to make here. So you can’t now argue

a quasi fundamental fairness case when

3 there’s

nothing in the record to support it.

4

HEARING OFFICER HALLORAN: Mr. McArdle?

5

MR. McARDLE: Okay. Let’s assume

6  for purposes of argument that 24 people

7  actually did read the transcript because we

8  know all 24 didn’t go to the proceedings. I

9  challenge this Board, and perhaps I’ll do it

10 in my brief to match it up, but I know there

11  were a number of County Board Members that

12  never went to the meeting at all.

13

HEARING OFFICER HALLORAN: Okay.

14 What I’ll do, I’m going to 

15

MR. HELSTEN: I would just like a

16  continuing objection and motion to strike any

17 of Mr. McArdle’s characterizations that I

18  personally know that some of the Board

19  Members did not review the record as a whole,

20 because if that’s the case, again, as I said,

21 legend has it, and my own personal experience

22  has it, that he is probably one of the most

vaunted, if not the most vaunted, and

24 formidable litigators

in this County. He’s

Page 168

1  well able to have brought those people

2  forward to so testify. But they didn’t

testify. There’s nothing in the record to

4  support these allegations.

5

HEARING OFFICER HALLORAN: Okay.

6 Here’s

what I’m going to do, Mr. Helsten.

I’m going to deny your motion to strike.

8  However, I will take it as an offer of proof

9  any characterization of the Board Member not

being able to review the record. With all

due respect, I’m going to keep it as an offer

12  of proof so the Board can review it and take

13  a look at it and overrule me if they so

choose, because I don’t think we all want to

15 come

back here again in two months and do the

16  same thing. So we’ll just get it in the

17  record, and we can proceed.

18

Mr. McArdle?

MR. McARDLE: I’m not going to make

20 that comment any longer, so are we out of the

21 offer of proof?

HEARING OFFICER HALLORAN: We’re

23  out of the offer of proof.

24

MR. McARDLE: You know, as I

Page 169

1  indicated in my opening, they met to pass

2  this resolution for no more than 30, 40

minutes 

whatever it was 

HEARING OFFICER HALLORAN:

Mr. McArdle,

S  I’m sorry. We have a hand up. If you could

6  raise your voice, please. Thanks.

7

MR. McARDLE: They met for 30 or 40

8  minutes 

whatever that time frame was 

9  and the transcript has the pages there. And

10  what’s significant is there’s no findings of

11  fact or credibility of any witness. No one

12 ever mentioned, you know, I don’t believe

13  Mr. Lowe’s witness on this particular point.

14 Or I really believe the village of Cary’s

15  witness on this particular point, and that’s

16  why I’m voting my way. So the whole point of

17  that isn’t to attack the resolution as not

18 being adequate from a matter of law; the

19 whole point is the Pollution Control Board

20  has no basis to somehow weigh the credibility

21 of the objectors’ witnesses in its favor of

22  supporting the decision as opposed to not

23  giving credibility to Mr. Lowe’s witnesses,

24 because those findings of credibility were

against

want to

findings

fact as

is conce

that’s i

support

was the

rules on

That 

was

argument

an

it

est

tes

tha

Criteria 3

make it cl

of credib

far as the

med. It

n, and the

Page 170

1  never made. It would have been very easy,

2  even in the resolution itself, to say, you

know, we support Mr. Whitney’s comment, even

4  though you have

S  asked him about

6  Mr. Whitney’s t

Mr. Harrison’s

Mr. Lowe. And

opinion when Miss Kay

•     But we support

imony more so than

timony on behalf of

t’s why we’re finding

So there’s no 

I just

ear to the PCB there are no

ility and no findings of

County Board’s resolution

has conclusions of law, but

re’s to discussion to

it from that standpoint. And that

only point of my 

I understand the

weighing credibility and all that.

the only reason I made that

As far as these nuggets are

concerned and that argument, but the points I

just made during my opening and in the

closing before the County Board, specifically

about Andrew Nickodem’s testimony 

the

Page 17)

1  engineer 

are completely unrebutted. I’ll

2  cite to this in my brief, but where

Mr. Nickodem said, you know, here’s what I

4  did in the Woodland facility. That’s

5  completely unrebutted. The manifest weight

6  of the evidence standard is met as far as him

7  saying, you know, I thought this was a good

8  design in Woodland, but I don’t like

Mr. Lowe’s because of such and such. He

10  agrees that where we overlap on the Woodland

11  design on these substantial issues was a good

12  idea. And he also agreed 

and I’ll cite to

13  it 

that these state of the art design

14 methods that we incorporated through

15  Mr. Gordon were also over and above the

16  safety standard or the criteria standard. I

17 asked

him, you know, does that make it 

is

18  it more conservative to put a geo liner under

19  the concrete? Will that help prevent

20 infecting the 

any aquifer if there were an

21 event, and he agreed that there was. It was

22 more conservative, and, therefore, it

minimizes the impact.

As far as the Plote property next

Page 172

1  door to the east, there is testimony

2  unrebutted by Mr. Plote himself that all of

this gel 

he’s been looking at this

4  property for the past ten or 15 years. No

doubt he’s been looking at it for some sort

of multifamily, although he testified R-1 is

completely inappropriate next to an 1-2 zoned

8  piece of property. But in any event, he

certainly has been talking to the village of

10 Cary. But you’ll find in the record there’s

11 been no public proceeding on any of

12 Mr. Plote’s dreams of doing a multifamily

13 development until after we filed this

14 petition for the transfer facility. Once we

15 filed that application in November, it

16 finally gelled, and the relationship suddenly

17 got a lot better between Mr. Plote and the

village of Cary. They held hands together,

19  and they 

finally

annexed the property

20

mid-proceeding

or post-proceeding. And

21 that’s all in the record as well.

22

so this development of residential

23 finally

came together, you know, as a way of

24  objecting and 22.14 issue. All of that came

Page 173

together by way of standing as a roadblock to

2  Mr. Lowe’s proceeding. It’s certainly isn’t

because he has a great desire to develop a

residential zoning next to an 1-2 zone piece

owned by Mr. Lowe as the rock concrete

6  crushing facility or the Welch property, who

has the concrete pipe facility.

And, finally, on the none 

the

unnumbered criteria, all of the testimony by

10  Percy Angelo on behalf of the village and as

11  repeated by Mr. Helsten here just a little

while ago, all of that is, again, what if?

What if you need this permit, Mr. Lowe?

14  Isn’t it a fact you don’t have it? Well,

15 that’s

true. What if he does? If he does,

16 he doesn’t have it. He testified as to what

17 permits he had. He also testified to the two

18  requirements in that particular unnumbered

19 criteria. One is he has no permit violations

20  issued by the EPA with regard to solid waste

21 management. That’s the issue. And he

22  testified to his prior experience. All of

the rest of it is pure speculation on her

24 part.

4

S

10

11

14

15

17

far

the fee

.Lowed

icat ion.

the fee,

imposed by

id suggest a

And, certai

Page 174

then 

—-

the last

the County, you

40-cent fee in

nly, if that was

HEARING OFFICER HALLORAN: 

Thank you,

18 Mr. McArdle.

Before we proceed into housekeeping

20 matters, any other members of the public wish

21 to make a statement before we close these

22 proceedings?

MR. HELSTEN: Mr. Halloran, we do

24 have a County Board Member here that I think

issue 

know, Mr

his appl

imposed as a condition to the granting of the

application, there would be no basis to

object because that was his proposal. But

out of the blue, the County comes with $2.90.

There’s no basis in the record to support

$2.90, even if the basis was sufficient to

accept that type of criteria. But under the

cases I previously cited, the law prevents

imposing a fee requirement on an applicant.

So for that reason and the reasons

set out in my opening, I would request a

16 reversal.

Page 175

1  wanted to make a statement or public comment.

2

HEARING OFFICER HALLORAN: Okay.

You can step up.

4

If you could sign in here, please.

(Witness complying.)

(Whereupon, the witness was duly sworn.)

PUBLIC

COMMENT BY ANNA MAE MILLER

8

MS. MILLER: Anna Mae Miller. I

live at 1415 East Main Street Road in Cary,

10 and I’m one of the County Board Members that

11 was part of the decision-making process.

12

Now, I don’t have a prepared

13  statement. Honestly, I didn’t think I was

14 even going to come and have to address it.

15 wouldn’t have, except that some of the

16 testimony today has addressed the fact that

17 they think that we didn’t 

what I hear you

18 saying is that we didn’t do our job. I

19 attended will hearings 

not every minute of

20 it. I was not on the committee, but I

21  arranged my schedule so I that could go and

be at as many of them as I could.

23

Now, I understand the Applicant’s

24  right to question the outcome of things, but

Page 176

1  I really question his saying we listened to

2  things and that our conclusion was erroneous;

that we had no right to come to that

4  conclusion; that, instead, you know, we had

5 to

somehow, when we were being asked to vote

6 on

the different criterion, give a discussion

of why we arrived at 

why we arrived at

S  whatever our conclusion was.

During the course of all these

hearings, we were given much instruction as

11  to not discussing this with anybody. It was

12  to be a decision we arrived at ourselves.

13 Nowhere right down to the County Board

14 meeting where we went through the criterion

one by one did anybody say, well, you know,

now when we get to you Anna Mae, I want you

to tell me how you arrived at the conclusion

18  you did. And there are different reasons for

19  each one of the criterion that I arrived at

20 the conclusion I did. And some of my votes

21  were different than some of the votes of my

22 fellow County Board Members. But nobody did

23 come

to us and ask us to explain at any point

24  in time how we arrived at what we arrived at.

Page 177

1  And I want you to know that I didn’t take it

2  lightly; that I didn’t go in with any

3 preconceived

notions; that I attended as much

4  of the hearings; read all of the material

that was given to me; and that I arrived at

what I did in good conscience and would stand

by my decision yet again.

HEARING OFFICER HALLORAN: Thank you.

Mr. McArdle?

10

MR. McARDLE: Yeah. I just have a

11  couple 

questions.

12

ANNA MAE MILLER,

13  called as a witness herein, having been first

14  duly sworn, was examined and testified as

15 follows:

16

DIRECT EXAMINATION

17 BY MR. McARDLE:

18

Q.  Are you aware of any County Board

19 Members who did not show at all for any of

20 the committee hearings?

21

A.

No, no.

22

MR. HELSTEN: I’m going to

object --

24

HEARING OFFICER HALLORAN: Mr. Helsten?

Page 178

1  BY THE WITNESS:

A.  No, honestly, no; I am not aware of

3  any County Board Member. I didn’t take a

4  roll. We didn’t sign in. I am not aware of

S  anybody who did not attend some of the

6

hearings.

7

HEARING OFFICER 

HALLORAN: Are

you

8

going to withdraw your objection?

9

MR. HELSTEN: I’m going to withdraw

10

it.

11

HEARING OFFICER HALLORAN: Thank you,

12

Mr. Heisten.

BY MR. McARDLE:

14

Q.  And during the hearings, did you

15 have any discussions with any of the

16 objectors about this site?

17

MR. HELSTEN: I’m going to object

18

to this being irrelevant, because we have

no --

there’s been no allegation in the

20

petition for review of a denial

21

fundamental fairness based upon improper

22

preadjutication of the merits of the

23

application, upon ex parte contacts 

on

24

any of myriad of fundamental fairness

Page 179

1

matters. And I don’t think now we can go

2

mushroom hunting when we haven’t alleged

3

and tried to cherry pick evidence when we

4

haven’t alleged that as a basis that

5

we’re here for in the underlying

petition.

HEARING OFFICER HALLORAN: Mary

8

Ellen, could you please read the question

back, please?

10

(Whereupon, the record

11

was

read 

as

requested.)

12

HEARING OFFICER HALLORAN: Mr. McArdle,

13

your follow-up to Mr. Helsten’s as

14

objection?

15

MR. McARDLE: Well, she indicated

16

she considered certain things in making

17

her decision, and I want to know if one

18

of

those

was discussions she had with the

19

objectors.

20

THE WITNESS: Let me address that.

I’m very comfortable

with that.

22

HEARING OFFICER HALLORAN: Mr. Helsten,

23

are you going to 

24

MR. HELSTEN: Well, I think 

I’ll

And, again,

with this, and I

THE WITNESS:

throw a monkey wrench

HEARING OFFICER

dural

not to

So no,

of mine

actually,

,andlhad

ask, and I

een

no,

about when

I work at

several

admonished

I’m 

sorry;

the hearings

Page 180

find that

Ido.

finished

let her answer, sir, if you so

subject to my objection.

HEARING OFFICER HALLORAN:

She may answer it if she’s able.

we’re almost

don’t 

And I didn’t want to

into it.

HALLORAN:

11

no.

is

may

BY THE

A.

No,

ngt

and

I’m goi

proof,

no,

odo

you

And I don’t 

what

take it as an offer of

answer it like that.

WITNESS:

We were admonishe

proceed.

d that we could

about

the siting

talk about

in talking to

from Cary,

discuss anything proce

facility, but we were

anything substantive.

some of the neighbors

people

would come in 

the Algonquin Township

people

come to me and

them just like I had b

if you want to ask me

24  are or what we’re allowed to do or what we’re

Page 181

1  not. But as for the actual siting of it or

2  anything regarding the facility, no, I did

3  not.

4  BY MR. McARDLE:

5

So no one ever gave you their

6  opinion of the proposed site, either during

7  the hearings when you were there or at the

8  Algonquin Township Hall?

9

A.  Iwasatthe 

10

MR. HELSTEN: Objection 

11  BY THE WITNESS:

12

A.

public participation portion of

13  some of the hearings, and I was able to hear

14 what some of those people said. No, they did

15  not come up to me as an individual. Then, I

16  guess I’ve been really very lucky 

17

HEARING OFFICER HALLORAN: Excuse

18

me, Miss Miller, when Mr. Helsten

19

objects, we should probably stop. And my

20

note is 

we have to maybe back up,

21

because Mary Ellen did not get it.

22

However, I do note Mr. Helsten’s

23

objection. I will let it in as an offer

24

of proof. So there.

Page 182

Miss Miller, do you want to repeat,

if you can remember what you said.

BY THE WITNESS:

A.  Well, not verbatim. What I said is

that I was at some of the hearings where 

during the public participation portion, and

so I

was able to hear some of the people’s

comments on the facility and when they

addressed it.

But, no, I did not ever have

an in-depth or discussion on the facility,

and nobody came up to me and exchanged

their...

BY MR. McARDLE:

Did you read the transcript?

A.

No.

was locat

A.

A.

think it’

room you

Board

of

sign

Do you know where the transcript

ed if you wanted to read it?

Yes

Where

In the County Board 

in the 

s the human resources area 

the

wind your way through the County

fice, and it was a room where you

in and sign out if you wanted to

I

had

Page 183

see...

2

Q.  And how do you know that?

A.  Because we were instructed where we

could access any of the material if we wanted

5  to go over it.

6

Do you know whether any County

Board Member read the transcript?

MR. HELSTEN: Again, we’re

getting 

10

HEARING OFFICER HALLORAN: Yes.

11

Mr. McArdle, are you going to wrap

12

this up? This is still under an offer of

13

proof, and I’ve notes Mr. Helsten’s

14

objection.

15

MR. McARDLE: It’s the last

16

question.

17

HEARING OFFICER HALLORAN: I don’t

18

see where this is relevant.

19

MR. McARDLE: It’s the last

question.

21

HEARING OFFICER HALLORAN: Okay.

22

Thank you. You can proceed. One last

23

question.

24

Page 184

1  BY MR. McARDLE:

2

Q.  Do you know whether any other

3  County Board Member read the transcript?

A.  Yes, I do know that other County

5  Board Members read portions of the

6  transcript.

MR. McARDLE: That’s all I have.

HEARING OFFICER HALLORAN: Thank you,

Mr.

McArdle.

10

Any questions?

11

MR. HELSTEN: Nothing.

12

HEARING OFFICER HALLORAN: Thank you,

13

Miss Miller.

14

Any other members of the public?

15

A couple of housekeeping matters.

16 The public sign up sheet, I’m going to take

17 it with the case as Hearing Officer Exhibit

18 No.

1. And, earlier, I said I took Public

19 Comment No. 1, 2 and 3 as public comment, but

20 pursuant to Section 101.628, I will take them

21 as public statements because they were

22 subject to cross-examination and made under

23 oath. So those public comments 

No. 1, 2

24 and 3 become Public Statements No. 1, 2

Page 185

1  and3.

2

And Mr. McArdle reminds me that

3  pursuant to, at least in our case, the

4 protocol

that I am to make a credibility

5  determination of the witnesses that testified

6  here today. And based on my observations,

7  legal judgment and experience, I find that

8  there are no issues of credibility with any

9  of the witnesses that testified here today.

10

I think, briefly, we’re going to 

11 we’ve already off the record discovered or

12  discussed posthearing briefing schedule. And

13  the state 

the Pollution Control Board, at

14  its own expense, has requested an expedited

15  transcript, and Mary Ellen has assured me

16  that she will have it finished by August

17  19th, which is a Tuesday. And I believe

18 under contract, it must be finished by 4:30.

19 However, with that said, it may not be posted

20 on our website until possibly August 20th 

21 that morning. But, hopefully, I’ll notify my

22  clerk, and as soon as this comes in, we’ll

23  get at it.

24

The alternative is you can approach

Page 186

1  the court reporter and make arrangements with

her personally. You might be able to receive

3  it faster.

5  will

6  will

In any event, since the transcript

be ready and on our website 

and I

read the website and out address we mail

to a little

ldbe

03,

5

Tha

later.

ready A

imultane

t means

But the

ugust 19th,

ous opening

Mr. McArdle

ipt shou

22nd, 20

are due.

sten wil

ive part

in hand

you

7  anything

transcr

August

briefs

Mr. Hel

respect

briefs

Board.

deliver

August

should

2003;

and

1 have their briefs 

ies will have the opponents’

on August 22nd, as will the

have to deliver 

hand

22nd or overnighted for the

the bottom line is everybody

ief that’s supposed to have a

edA

21st

have

ugust

So

abr

brief by August 22nd.

I’m going to

due and the amicus due

August 25th, 2003.

will apply there. So

make public comment

by the village of Cary

And the mailbox rule

that’s basically

you want to file a public

slip it in the mailbox on

statement, just

or before August

Page 187

1

2

3

S

if I can’t answ

direct line is

for the Illinoi

www. ipcb. state.

user-friendly.

and you go to 

en

312-

Pollution

il.us. And

You can get

well, it di

11.

the

Boa

tty

web

you.

just

get

the

if y

25th, and that will be considered filed in

time.

And while I’m at it, I want to give

you our address. And if any reporters are

here, if they could publish our address as

well, or I’ll give you my phone number. You

can call. For public comment, our address is

the Illinois Pollution Control, 100 West

Randolph Street, James R. Thompson Center,

Suite 11-500, Chicago, Illinois, 60601. My

phone number

and I’m a little hesitant to

give it to you, but, you know, I don’t have

the clerk’s number, so you can call me. And

the

814-89

1

clerk

wi

7. And

Control

it’s pre

on our

rects

But my

website

rd is

site,

You

to it,

clerk,

ou

go to the clerk’s library and you

the directions. And if you can’t

call me or I’ll pass you over to

and he or she can help you. And

24  didn’t get any of the information, I have

1  about seven,

2  you can take

Page 188

ten business cards up here that

home with you.

And while I’m at

state that presently there’

or take, members of the pub

counted it this time, so I

The simultaneous

Petitioner and

due on or before S

am, the mailbox ru

respective parties

receipt of the repl

parties

any, is

And, ag

so the

bein

September 2.

change?

MR. McARDLE:

it, I’d like to

about 45, give

lic

here. And I

know I’m night.

replies by the

Respondent

if

eptember 2nd, 2003.

le does not apply,

and the Board must

y brief on or before

Could I make one

HEARING OFFICER HALLORAN: Yes.

You can suggest it.

MR. McARDLE: The amicus brief

needs to be delivered

that day, because if

she mails it from Chicago on the 25th, which

a Monday, I won’t get it until Wednesday,

that’s not going to be enough time to do a

response.

Because it’s due on Labor Day, I

plan on having this done on Friday before

10

1~1

12

13

Page 189

1

Labor Day.

It gives me two days

MS.

ANGELO: Mr. Nearing

3  we’ll represent

overnighted.

that we’ll have it

MR. McARDLE: 

And I’ll do the

HEARING OFFICER HALLORAN:

7  And Mn. McArdle will have it on August

MS. ANGELO: 26th.

25th.

HEARING OFFICER HALLORAN: August

26th. overnight it on the 25th.

MR. McARDLE: 

I’m going to do the

same thing with my Petitioner brief on the

22nd 

or --

yeah, the 22nd.

HEARING OFFICER HALLORAN: 

So now

your bnief is due the 23rd?

MR. McARDLE: No. Just between us.

17 I’m going 

to make sure that 

the amicus has

18  brief FedEx’d 

HEARING OFFI CER HALLORAN:

On the 22nd.

MR. McARDLE: 

in the same

HEARING OFFICER HALLORAN:

2

Officer,

6

same.

9

Okay.

10

11

16

20

Okay.

my

22

Okay.

fashion.

okay.

24 But public comment is still due on or before

Page 190

1 August 25th, so slip it in the mail that way.

2

Mr. Heisten, Mn. McArdle, have I

3  covered pretty much everything?

4

MR. HELSTEN: Yes.

5

MR. McARDLE: The record closing is?

6

HEARING OFFICER HALLORAN: September

7  2nd the record closes, because the Board

8  needs 30 days prior to the decision due date,

9  and I think the Board meeting is October 2nd.

10 So 

it’s,

you know...

11

In any event, I want to thank the

12 parties for their professionalism and

13 civility, and I want to thank everybody for

14 their hospitality and the Village of Cary

15 School District for the use of the

16  facilities.

17

I see a hand up by Miss Angelo.

18 Yes, ma’am?

19

MS. ANGELO: Mn. Hearing Officer,

20  there’s some confusion about where the record

21  is currently, because we have portions of it,

22 but we certainly don’t have the citations

23 that have been affixed to it by the County.

24 So for purposes of citing our brief, is the

Page 191

1  record available at the Pollution Control

2  Board?

3

HEARING OFFICER HALLORAN: It has

4  been for a while now. That’s where they

5  filed it.

6

MS. ANGELO: All right. Thank you.

7

HEARING OFFICER HALLORAN: And the

8  exhibits are there too. I think there’s

9  numerous exhibits.

10

Thank you very much. Have a safe

11  trip home.

12

(Whereupon, those were all

the proceedings held in

14

the matter on this day.)

Page 192

STATE OF ILLINOIS

COUNTY OF C 00 K

)

SS

I, MARY ELLEN KUSIBAB, CSR,

do hereby state that I am a court reporter

doing business in the City of Chicago, County

of Cook and State of Illinois; that I

reported by means of machine shorthand

proceedings held in the foregoing cause,

that the foregoing is a true, correct and

accurate transcript of my shorthand notes

taken as aforesaid.

fL~e~S~L~

Mar~4llen Kusibab,

Notary Public, Cook

Illinois License No

CSR

County, IL

084-004348

the

and