BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
LOWE TRANSFER, INC. and
)
MARSHALL LOWE,
)
Co-Petitioners,
)
No. PCB 03-221
vs.
)
(Pollution Control Facility Siting Appeal)
COUNTY BOARD OF McHENRY
)
COUNTY, ILLINOIS
)
Respondents.
)
RECEAVEI)
CLF.~’S
(FFT(~
NOTICE OF FILING
AUG
222003
TO:
See Proof of Service
STATE
OF
ILLINOIS
PLEASE TAKE NOTICE that on August 22, 2003, we filed with the iiff
Mt1flhJWn~4rd
Board, the attached
Memorandum in Support ofthe SitingAppealofLowe
Transfer, Inc. and
Marshall Lowe to Contest Site Location Denial,
in the above entitled matter.
LOWE TRANSFER, INC. and
MARSHALL LOWE
By:
fl-_~7~AA
David W. McArdle
PROOF
OF
SERVICE
I, anon-attorney, on
oath state that I served the foregoing Memorandum on
the following party, by hand
delivery on this 22~
day ofAugust,
2003:
Attorney for County Board ofMcHenry County, Illinois
Charles F. Helsten
Hinshaw and Culbertson
100 Park Avenue
Rockford, IL
61105-1389
SUBSCRIBED and
SWORN
to before
me
t
~nd
day of Au
,
003
//
Notary Pub
ic
David W. McArdle
Attorney Registration No.
06182127
ZUKOWSKI ROGERS FLOOD & MCARDLE
50 Virginia Street
Crystal Lake, Illinois 60014
(815) 459-2050
U:\HAHARKIN\LOWE\NOTFILE4.TRANSFER.wpd
This
document is printed on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
LOWE TRANSFER, INC.
and
)
RECEi~VE~
MARSHALL LOWE,
)
CU~.’~
(F~~
)
AUG22?003
Co-Petitioners,
)
)
PCB 03-22 1
STME OF
ILLIINOIS
vs.
)
(Pollution Control Board
Pollution
Control Board
)
Siting Appeal)
COUNTY BOARD OF
MCHENRY
)
COUNTY, ILLiNOIS,
)
)
Respondent.
)
MEMORANDUM IN SUPPORT OF THE SITING
APPEAL
OF LOWE TRANSFER, INC. AND
MARSHALL LOWE TO CONTEST SITE LOCATION DENIAL
David
W. McArdle
ZUKOWSKI,
ROGERS, FLOOD
&
MCARDLE
Attorney No:
06182127
Attorney for: Co-Petitioners
50 Virginia Street
Crystal Lake, IL
60014
815/459-2050
8 15/459-9057
(fax)
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DOCUMENT PRINTED ON RECYCLED PAPER
TABLE OF CONTENTS
INTRODUCTION
1
II.
PRIOR PROCEEDINGS
I
A.
Lowe’s Application for Site Location Approval
1
B.
Public Hearing
4
1.
Criterion 2
4
2.
Criterion 3
4
3.
Criterion 5
4
C.
County Board Resolution
5
111.
STANDARD OF REVIEW
5
IV.
GROUNDS FOR REVERSAL
6
A.
The County’s Decision on Criterion 2
was Against the Manifest
Weight of the Evidence
6
1.
Lowe’s Witnesses
8
2.
Village’s Witnesses
9
3.
The Transfer Station Is Designed So As
to Protect the
Public Health,
Safety and Welfare
11
a.
Waste Receiving
12
b.
Waste
Unloading and Inspections
13
c.
Waste Loading
14
d.
Tarping and Weighing
15
e.
Storm Water Management
15
f.
Groundwater Protection
17
g.
Additional Special and Unique Design Features
1
9
h.
Landscaping Plans
21
4.
The Transfer Station Is Located
So As to Protect the Public
Health,
Safety
and Welfare
22
5.
The Facility’s Operations Plan Is Designed So As
to
Protect
the Public Health, Safety and Welfare
22
B.
The County Board’s Finding
on Criterion 3
Was Against the
Manifest Weight of the Evidence
23
1.
Lowe’s Witnesses
25
2.
Village’s Witness
26
3.
Bright Oaks’ Witness
26
4.
The Location of the Facility Minimizes Incompatibility
26
5.
The Location of the Facility Minimizes the Effect on Property Value
30
a.
Northbrook Transfer Station Study
30
b.
Groot Transfer Station Study
33
c.
Rolling Meadows Transfer Station Study
34
d.
ARC Disposal and Recycling Facility Study
35
C.
The County Board’s Finding
on Criterion
5
Was Against the
Manifest Weight of the Evidence
37
D.
County’s Misapplication
of Previous Experience to Criteria
2 and
5
45
B.
The County Board’s Imposition of A Host Fee
as a Special
Condition Was Unauthorized and Unlawful
47
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I.
INTRODUCTION
On November 20, 2002,
Lowe Transfer,
Inc.
and Marshall Lowe,
co-petitioners (“Lowe’)
filed aregional pollution control
Siting
location application (“Application”)
with McHenry County.
(C00001; C00002).
Following eleven days
ofpublic hearings, spanning
3,955
pages of transcript,
the McHenry County Board (“CountyBoard”) met one time regarding the Application.
On May 6,
2003,
the
County
Board
spent
less
than
30
minutes
voting
on
the
Application
and
no
time
deliberating on it.
(C07244;
C07245-C07250).
There was no discussion regarding the Application,
the hours of testimony and public comment, the more than
100 exhibits or the experts.
Id.
The
hearing officer submitted no
findings forconsideration by the County Board.
The detailed proposed
findings of
the
County Boardstaffand consultants were completelydisregarded.
(C03 852-C03 992).
Instead,
without making
oral or written
findings of fact
or credibility,
the
County Board simply
passed a resolution concluding that Lowe met Criteria 1, 4, 6, 7,
8 and 9 and failed to meet
Criteria
2,
3
and
5.
(C07244:
C07245-C07250).
Lowe appeals
the denial of its
Application for the Northwest Highway Transfer Facility
(“Facility”)
by
the
County
Board,
pursuant
to
Section
40.1(a)
of
the
Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS
5/40.1(a),
on
grounds
that the
County Board’s
decision
was
against the manifest weight of the evidence and should be reversed.
II.
PRIOR
PROCEEDINGS
A.
Lowe’s Application
for
Site Location Approval.
The
Application contained
detailed information
establishing
compliance
with
the
siting
requirements in
Section
39.2(a)
of the
Act,
and the
applicable McHenry County
ordinances
and
procedural
rules.
(C00001;
C00002;
C00150-C00166).
Of relevance
to
this
appeal
are
the
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requirements of Criterion
2 (design, operation and location), Criterion
3 (compatibility and property
value)
and Criterion
5
(plan of operations).
In the Application, Lowe proposed
to
site, permit,
construct and operate a new municipal
waste
transfer facility on property
in
unincorporated
McHenry County,
Illinois.
The proposed
Facility will beused
for
the
consolidation and transfer of municipal
solid
waste from residential,
commercial and industrial waste generators. It will process an average of 600 ton per day.
(C0000l
Sec.
3,
p.
7).
The proposed Facility on a 2.6
acreparcel
is adjacent to U.S. Route
14, approximately 1600
feet northwest ofthe intersection of U.S. Route
14 and Three Oaks Road.
(C0000l, Sec.
2,
p. 2-1).
The Facilityhas direct access to U.S. Route
14, afederal highwayand a Class I roadway, with traffic
volumes averaging 23,700 per day and aweight limit of 80,000 pounds per vehicle.
(C0000 I, Sec.
6,
p.
6).
The USEPA classifies waste transfer stations
as a “light industrial” use.
(C00001,
Sec.
3,
p.19).
The proposed Facility site is zoned under the McHenry County Zoning Ordinance as “Heavy
Industry.”
(C0000 1,
Sec. 3, p. 6). Permitted uses in the HeavyIndustryzoning district include such
intense
uses
as
rendering
and
meat
packing
plants,
wrecking yards,
recycling
collection
and
processing facilities (coal,
clay, fertilizer), sawmills and slaughterhouses.
(C00001,
Sec. 3,
p.
19;
C00263).
The
properties
immediately
adjacent
to
the
proposed
Facility
site
are
also
within
unincorporated McHenry County and are also zoned
industrial.
The properties to the
immediate
south and southeast of the Facility are not
only zoned Heavy Industry but are currently being used
forasphalt and concrete crushing and recyclingand concrete pipemanufacturing with outside storage
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oflarge volumes ofrock, asphalt and pipe.
(C00001, Sec. 3,
p. 9). The
property east and
northeast
of the Facility is zoned Light Industiy and is a gravel pit currently being reclaimed.
(C00001, Sec.
3, p.
8).
The parcel of property immediately north, northwest
and
west of the Facility is zoned
1-2
Heavy Industry.
While formerly a gravel pit, this property is currently
owned and operated by
the
McHeniy County Conservation District (“The Hollows”) as
a conservation area open to the public.
(C00001, Sec.
3, p.
8).
At
the
time
the
application
was
filed
on
November
20,
2002,
no
property
was
zoned
residential within
1,000
feet of the Facility.
The nearest residentially zoned property or residence
was
approximately
1,300
feet east ofthe Facility, being the Bright Oaks Townhorne Subdivision
(“Bright Oaks”).
(C00001, Sec.
2,
p. 2-2).
Lowe
served
and
published
all
required
notices
within
the
prescribed
time
frames,
in
accordance with the requirements ofSec.
3 9.2(b) of
the
Act.
(C00002, App.
G;
C00008; C00009-
COOlO;
C00020-C00023; C00024).
On February 4, 2003, the Village of Cary
(the
“Village”)passed aresolution objectingto
the
siting of Lowe’s proposed Facility.
(C01299-C01301).
The main thrust ofthe
Village’s objection
was the proximity of the proposed Facility to the Village corporate limits.
The Village board was
opposed to having awaste transfer station being located along what it envisioned to be the “gateway”
to its Village.
Id.
Bright Oaks was likewise opposed to the proposed use and retained counsel to
object and participate in the proceedings below.
Finally, Plote, the owner of the property east of the
proposed Facility,
also retained counsel to oppose the Facility.
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B.
Public Hearing.
Following the
initial organizational meeting of the parties held
on February 24, 2003,
the
public hearings on the Application commenced.
(C00175-C00176;
C00177).
The hearings began
on March
1, 2003
and
ended
on March
15,
2003.
(COO
178-C00227).
Over the course of the public
hearings,
Lowe
and
the
objectors
presented
numerous
witnesses
who
testified
regarding
the
sufficiency of Lowe’s Application.
The witnesses regarding the criteria at
issue
in
this
appeal,
Criteria 2,
3
and
5,
are outlined herein, and
the testimony is addressed in
detail below.
1.
Criterion 2.
Criterion
2
addresses
the
design,
operation
and
location
of the
Facility.
In
support
of
Criterion 2, Lowe presented its engineers Dan Zinnen, Keith Gordon and
Doug Dorgan.
The
Village offered
Andrew
Nickodem, LaiTyThomas andKevin Sutherland.
2.
Criterion
3.
Criterion 3 focuses on
the proposed site’s compatibility and impact on property values.
With
regard
to
Criterion
3,
Lowe
presented the testimony of two
witnesses:
Larry Peterman,
a
land
planner who
testified regarding compatibility,
and
Frank
-Iarrison,
a real
estate
appraiser
who
testified regarding impact to propertyvalues.
TheVillage offered N. Drew Petterson as its witness
on the compatibility
part
of Criterion
3.
Bright Oaks offered John T.
Whitney as their witness
on
the property value part of Criterion 3.
3.
Criterion 5.
Criterion
5 addresses the plan of operations minimization of danger from fire, spills or other
operational
accidents.
In
support
of
Criterion
5, Lowe
presented
engineer Keith
Gordon.
The
Village offered Andrew Nickodem.
4
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C.
County Board Resolution.
Following closing
arguments
on
March
15,
2003, the County
Board
only met
one
time
regardingtheApplication
—
May 6, 2003
—
for less than 30 minutes.
On that date, theCounty Board
had absolutely no discussion regarding the evidence presented at the hearings.
The County Board
simply adopted Resolution 200-305-12-104.
(C07244; C07245-CO725O).
No findings of facts or
finding relating to
credibility ofwitnesses were made.
Id.
III.
STANDARD
OF REVIEW
When reviewing a local decision on the nine criteria found in
Sec.
39.2(a) of the Illinois
Environmental
Protection
Act
(“Act”)
415
ILCS
5/40.1(b),
the Pollution Control Board must
determinewhether the local decision is againstthemanifestweight ofthe evidence.
McLean
County
Disposa4
Inc. v. County ofMcLean,
207
Ill. App.
3d 352
(4th
Dist. 1991). A decision is against the
manifest weight of the evidence if the
opposite result is clearly evident, plain
or indisputable,
from
a review
of the evidence.
CDT Landfill
Corporation v.
City ofJoliet
PCB
98-60, slip op. at
4
(1998), citing
Harris
v.
Day,
115
Ill. App. 3d 762
(4Lh
Dist.
1983).
Where
an applicant
makes a
prima facie showing as
to each criterion and no contradicting or impeaching evidence was
offered
to rebut that showing, a local government’s finding
that several criteria had not been satisfied was
found to be against themanifest weight ofthe evidence.
Industrial Fuels
&
Resources/Illinois, Inc.
v.
Pollution Control Board,
227
Ill.App.3d
533 (1St Dist. 1992).
Since 1983, the Board and appellate courts on at least twelve occasions have found the lower
tribunal’s decision against the manifest weight of the evidence with respect to one or more criteria.’
1Also, e.g.,
CDTLandfihI Corporation
v.
City
ofJoliet,
PCB 98-60 (1998) (The
Board reversed
the City of Jotiet’s
dec,sion
with
respect to an expansion ola landfill and found the city’s decision with respect to Criteria 2,6
and
8
was against the manifest weightof the
evidence);
Larry Slates
v.
Illinois Landfills,
Inc.,
PCB 93-106
(1993) (The
Board
found
the City
of I-Ioopeston’s decision with
respect to
site
location ofa landfill expansion
should be reversed
with
respect to Criterion
U;
Industrial Fuels
v.
Illinois Pollution Cont,ol Boat’4227
lii.
App.
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As recently as February of this year in
County ofKankakee
v.
City ofKankakee,
PCB 03-3 1, 33, 35
(2003),this body reversed the CityofKankakee’s decisionwith respect to a proposed landfill, based
on the fact that the city’s decision relative to Criterion 2 was against the manifest weight of the
evidence. The PollutionControl Board has found previous
McHenry
County Board’s decisions to
be in error.
See
WasteManagement ofIllinois
v. McHenry CountyBoard,
PCB 86-109 (1986)(The
county’s findings on Criterion 3 were againstthemanifest weightofthe evidence);
McHenry County
Landfillv. County Board ofMcHeniy County,
PCB 85-192 (1986) (The county’sdenial on Criterion
4 was
reversed; The Board
found that the applicant had indeed satisfied Criterion 4 based
on the
manifest weight ofthe evidence.)
IV.
GROUNDS
FOR REVERSAL
Therecord clearly
and plainly demonstrated Lowe’s compliance with Criteria 2,
3 and
5
of
the Act.
A.
The County’s Decision
on Criterion 2 was Against the Manifest
Weight of the Evidence.
Criterion 2: “the Facility is so designed, located and proposed to be
operated that the public
health, safety and welfare will be protected.”
415 ILCS 5/39.2(a)(ii)
3d
533
(5”
Dist.
1992) (The Appellate Court reversed both the PCB
and
the City of
Harvey’s decision
to deny siting approval, finding
the
decisions
against
the
manifest weightof the
evidence
on
five criteria);
Waste Hauling
Inc.
v, Macon Gounty Boaiv(
PCB
91-223 (1992) (1he
Board
found
that
the
Macon
County
Board’s decision denying
site approval with
respect to expansion
of an existing landfill
was
against the
weight ofthe evidence with respect to Criteria 2
and 6);
Clean Quality Resources, Inc.
v, Marion
County Boa,i~
PCB 91-72 (1991) (The
Board
found
the Marion County Board’s determination on Criterion
3
was against the manifest weightof the evidence);
A.R.F.
Landfill, Inc.
v. La/ce
County,
PCB
87-51
(1987) (The Board reversed Lake County’s decision to
deny the siting ofa
landfill expansion relating
to Criterion 3;
Criterion 3
had
been satisfied based
on the manifest weight of the evidence.);
industrial Salvage, Inc.
v.
County Board ofMarion,
PCB
83-173
(1984) (The Board reversed
Marion County’s denial of Criterion 2
based
on
alleged violations by Industrial; the
Board found this
to be an
inappropriate grounds for denial);
Watts Trucking Service
v.
City ofRock island,
PCB
83-167 (1984) (The Board found the
City of Rock
Island’s decision to deny approval for site location
was against the manifest weight of the evidence with respect to
all Criteria and reversed
the
City’s decision); and
F,inks Industrial
Waste
v.
City ofRockford,
PCB
83-41
(1983) (city’s denial of industrial
waste processing
ann
transfer
facility (special wastes) site location approval
reversed; PCB found “no special circumstance could support the city’s conclusion
that the
proposed site
is
located
too close
to a school”
(2000 feet)),
affirmed
City ofRockford
v. Illinois Pollution
Control Boar(
125
Ill. App. 3d
384
(2”
Dist.
1984).
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In denying approval of Lowe’s Application, the
County’s resolution stated
—
in error
—
that
Lowe had
not
satisfied Criterion
2.
Criterion
2 does not require
a guarantee
against
any risk
or
problem.
File
v. D &LLandfihl,
219 Ill.App.3d 897
(5th
Dist.
1991).
When an experienced design
engineer has designed the Facility in compliance with the standards for non-hazardous municipal
waste facilities set by the Illinois Environmental ProtectionAgency, compliance with these standards
satisfies this
criterion in the
statute.
C’lutts
v.
Beasley,
185
I1l.App.3d 543
(5th
Dist. 1989). The
standard set forth in
Industrial Fuels &
Resources v.
Pollution Control Board,
227 Iii. App.3d 533
(1st
Dist. 1992) is also relevantto
consider.
Industrial
involved the siting application for a pollution
control facility for contaminated
soils
and medical wastes.
In
Industrial,
the court reversed the
denial of siting on
5 criteria, includingCriterion
2, based on manifestweightofthe evidence holding
as follows:
Significantly,
there is no
evidence
of record to
demonstrate that the
design of the
facility is flawed from a
public
safety
standpoint
or that
its
proposed
operations
present
an
unacceptable
risk
to
the
public
health,
safety,
and
welfare... On
the
contrary,
the record substantiates
Industrial’s position
that
it made a
prima facie
showing as to each criterion and that (the city of) Harvey did not offer contradicting
or impeaching evidence
to rebut the showing.
The experts who testified on behalf
of Industrial
carried
impressive credentials
including
extensive
experience with
similar
facilities.
Their,
opinions
were
based
on
facts
and
reasonable
assumptions. ..The technology and design ofthe facility was represented to be state-
of-the-art
(meaning,
in
this
case,
providing
for
a
much
higher
degree
of
environmental
protection
than required
under
existing standards
and
laws),
and
nothing in the record contradicts that assertion.
As presented below, the record
in
Industrial
and the record in thiscase on Criterion 2 are
almost identical, based on this standard.
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1.
Lowe’s Witnesses.
Dan Zinnen
Mr. Zinnen is a registered professional engineer in
Illinois,
Wisconsin, Michigan and
Indiana.
(C00001,
Application).
Mr. Zinnen has worked on the permitting and design
construction ofover
100 landfills, including 70
in
Illinois.
He has done permitting and siting for
eight transfer stations,
and his firm, of which he is a principal, is currently responsible for
regulatory compliance for approximately 24 transfer
stations.
Id.
Keith Gordon
Mr. Gordon, the principal design engineer for
the Facility,
is a registered professional
engineer in 26 states, including Illinois and
all of its surrounding states. (C00001, Application;
C00179,
p.
16).
He
has been practicing for 26 years in
the field of solid, hazardous and
radioactive waste management.
Id.
Mr.
Gordon is presently serving as a consultant
on at least
12 transfer
station projects.
(C00179, p. 20).
Additionally,
Mr. Gordon is
a Certified Hazardous
Materials Manager.
(C00001,
Application).
Mr. Gordonwas appointed
to the
Technical Advisory Committee providing assistance to
USEPA on national
solid
waste facility siting issues and
was retained as editor
for USEPA’s
Solid Waste TransferStations: A Manual for Decision Making.
(C0001, Application;
C00240).
He is editor-in-chief ofthe Solid
Waste Association ofNorth America (“SWANA”)
Transfer
Station Management Certification Course manual, (C00001, Application; C00179,
p.
18;
C00238); and
lead instructor on transfer station management for SWANA. (C0000l,
Application; C00179, p.
18).
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Mr. Gordon has appeared as a guest lecturer and
technical trainer for a variety of
technicalsymposia, regulatory informationprograms and community forums.
(C00001,
Application).
Mr.
Gordon was awarded SWANA’s Bronze Medal for Transfer Station
Excellence in 1998 for his design
at South Central Transfer/MRF, Las Cruces, New Mexico.
Id.
Doug Dorgan
Mr. Dorgan
is a hydrogeologist with over
17 years experience in the geology and
enviromnental geology fields. (C00001, Application;
COO 199, p.
9).
He
is a certified
professional geologist in both Illinois and Indiana and a certified hazardous materials manager.
Mr. Dorgan has been involved in the
design, permitting,
and management of ongoing
groundwater management programs
for a wide variety of facilities throughout the country.
He
has extensive experience in assessment of contamination and impacts to groundwater at various
types offacilities including underground storage tanks, hazardous waste management sites, and
solid waste management sites.
Id.
2.
Village’s Witnesses.
The
Village approved Resolution No. #R03-O2-O1, A Resolution
in
Opposition to
the
Siting
of the Northwest Highway Transfer Facility at 3412 Northwest
Highway, on February
4,
2003. (C01299-CO13O1). Afterwards, Caryhired its witnesses attempting to back up their public
statement of opposition.
Andrew Nickodem
Mr. Nickodem was the design engineer
for the Woodland Transfer Station
in Kane
County and the FoxValley Transfer Station in DuPage County.
(C0O215,
p.
100). Woodland
was denied by the Kane County Board and thePCB
in
partbecause Criterion 2was not satisfied.
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Fox Valley’s application waswithdrawn so that
the applicant and its consultants could
re-design
and re-work the application based on concerns raised by the County.
(CO0215, pp.
94-95).
During cross-examination, Mr. Nickodem agreed his resume includedonly 6 transfer
stations.
(C0O215, pp.
98-103). Ofthese transfer stations, he was the engineer of record for only
two
—
Woodland and Fox Valley.
Id.
He has
never taught any courses regarding waste transfer
stations.
Id.
He is not
a certified transfer station manager or a certified hazardous material
manager.
Id.
He hasnever been a guest
speaker regarding transfer station design or operations
nor he has ever received any
awards for transfer station design.
Id.
Larry Thomas
Mr. Thomas is a registered professional engineer with an educational background solely
in civil engineering. (C00316),
He
has
been
the
Village Engineer since
1986.
(CO0188,
p.
9).
Mr. Thomas did not review the siting criteria in
preparation for his report or his
testimony.
(COO 189, p. 22).
He has never been involved in the design of a transfer station and
hasno experience with either transfer stations or landfills. (COO189, pp. 28-29). He is neither a
licensed geologist or licensed hydrogeologist.
(COO189, p.
50).
His repeated references
to
hazardous waste in his report were in
error.
(COO 189, p.59-60;
COO 190, pp.
57-58).
Kevin Sutherland
Mr. Sutherland is a registered professional engineer employed by the Village’s Engineer.
He has been working in this
capacity since 1997.
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3.
The Transfer
Station Is Designed So As to Protect the
Public Health, Safety and Welfare.
The record clearly and
plainly discloses the Lowe transfer station design satisfied
Criterion
2.
The Facility has more engineeredprotection for surrounding property owners than
any
other facility in the state. (C00001, Executive Summary;
Sec. 2, pp.
2-4 to 2-5;
Sec.
5,
pp.
5-
3
to
5-4).
The record contains numerous statements from both
County Board members and
participants describing the Lowe Facility
as “over-engineered” and “state-of-the-art”.
Donald
Brewer,
Chairperson ofthe Siting Committee, commented the design of the facility has “gone to
extra measure with the bells and whistles, with the over engineering ofthis
site.”
(COO186, p.
62).
Ken Koehler, a member of the Siting Committee, characterized the Lowe Facility as “an
over-designed facility.”
(COO 187,
p.
16).
The Facility’s design and its
operations plan include
many features that far exceed those found in transfer stations within the State ofIllinois.
(C00001, Sec.
2, pp.
2-4 to 2-5).
Lowe’s witness, Mr.
Gordon, explained that there are four design components to be
considered when designing a transfer station:
(1) waste receiving;
(2) waste unloading and
inspections; (3) waste loading; and (4) tarping and weighing.
Each of those four elements for the
Facility were designed to exceed
minimum industry standards or minimum regulatory
requirements in
order to minimize
against potential impacts from the Facility.
(C00001, Sec. 2,
pp.
2-4 to
2-5);
COO 179, p. 23).
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a.
Waste Receiving.
Queuing
The queuing (also known as stacking) distance on the access drive between U.S.
Route
14
and the entrance to the site is designed to accommodate more than twice the typical peak flow
requirements.
Id.
The Facility can
queue
in excess of20 vehicles
at one time, which is twice
Mr.
Gordon’s recommended design standard.
(C00001,
Sec.
2, pp.
2—S to
2-6;
COO179, pp. 24-
25).
According to the County
Staff and Consultants Report, if no traffic movement occurred on
the entrance during the maximum traffic period, all collection trucks
could be stored on site.
(CO3860).
The ample
queuing distance will clearly prevent the possibility of any trucks backing
up onto U.S. Route
14.
(C00001,
Sec.
5,
pp.
5-4
and 5-7 and Sec.
6,
p. 24).
In his report
on behalfof the Village, Mr. Nickodem suggested the queuing distance
provided by Lowewas insufficient and could cause
a
backup of trucks onto U.
S. Route
14.
(COO463, p. 2). Yet Mr. Nickodem admitted Lowe could
queue approximately
18 more trucks
from the entrance gate to the scale house than his design
for Woodland provided, even though,
Woodland was designed for 2000 tons per day while Lowe was designed for only 600 toi~s
per
day. (COO215, pp. 109-111).
Internal Traffic Flow
The internal traffic system is designed to separate the transfer trailer traffic from the
collection truck traffic.
(C00001, Executive Summary;
Sec. 2,
p. 2-8; Sec. 5,
pp.
5-7
to
5-8; Sec.
5,
Drawing 5—E-8).
This is one
of the health and safety features that Mr.
Gordon emphasizes in
SWANA’s site management courses.
(COO179, p.
36;
COO238).
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Scale House
The scale house building,
separate from the transfer building, will be enclosed to
minimize the potential for noise, dust and
any visual aspects.
(C00001, Sec.
5.
Drawing 5-E-2
and Drawing 5-E-9).
This
feature exceeds standard design for a waste transfer station.
99
of
waste transfer stations provide for outdoor scales. By having the scale house enclosed, noise,
dust and visual impacts will be minimized. (COO179, p. 26), The enclosed scale house is
designed with radiation detection and carbon
monoxide detection further exceeding standard
designs for a waste transfer station.
(C00001, Sec.5, p.
5-4);
Id.).
For the Village, Mr. Nickodem testified he included no radiation detector at Woodland.
(COO2 17, pp. 31-32).
However, he agreed radiation detection is more protective of the public
health,
safety and welfare.
Id.
Mr. Nickodem’s report for
the Village indicates the screening proposed for Lowe was
inadequate. (C0O463, p.
2).
However, Mr. Nickodem testified
the scale house and the concrete
transfer building would provide screening from noise and
visual impacts for both Bright Oaks
and The Hollows.
(COO216, pp.
7
and 34-42).
Additionally, he agreed Lowe’s concrete building
provides more noise abatement than the steel building he designed for Woodland.
Mr. Nickodem
agreed Lowe’s concrete building and the
1200-1400 foot distance between the Facility and Bright
Oaksprovides a noise buffer for the residents.
Id.
b.
Waste Unloading
and Inspections.
After exiting the scale house building, collection trucks approach the apron and back into
one ofsix differentunloading bays in the transfer building. All unloading ofwaste will take
place within the transfer building.
(C00001, Executive Summary;
Sec.
2, p. 2-7:
Sec.
5,
p. 5-3).
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This design feature was deliberately chosen so the risk potential for blowing litter by untarping
on
the
apron would be eliminated. (COO179, p.
65).
Certain bays will be utilized in sequence, and
the drivers
will back from
left to
right to
maximize visibility.
(C00001, Sec.
5,
p.
5-7;
COO 179,
p.
27).
This activity
is screened fl-om The Hollows
to the west by the scale house and Bright
Oaks to the eastby the transfer building.
The tipping
floor can accommodate more than twice the anticipated incoming waste
during peak hours
and has 20 foot wide rather than
15 foot wide bays.
The bays were increased
to the
20 foot width to ensure the operation will be safe and efficient.
(COO179, p.
28).
In fact,
the only concern expressed during the hearings regarding the tipping floor was it seemed to be
too large.
(COO18O, pp.
76-77). The transfer building will also include
a special
segregated
waste contingency management
area.
(C00001,
Sec.
5,
p. 5-28 and Drawing 5-E-3);
COO 179, p.
28).
Mr. Nickodem in his testimony on behalfof the Village admitted that he did not include
a
separate waste contingency management area in the Woodland design.
(COO217, pp.
12-13). He
justified this omission on the basis that Woodland didn’t plan on having unacceptable waste at
the facility.
Id.
c.
Waste Loading.
All loading ofthe transfer trailers will take place within the enclosed loading tuimel.
(C00001,
Executive Summary; Sec.
2, pp. 2-5 and 2-8;
Sec.
5,
pp.
5-6 to
5-8).
The transfer
trailers
enter directly into the transfer building via the drive through tunnel.
Id.
The transfer
building is designed with ramps of extremely gentle slopes
to
allow for easy
access to
and from
the loading tunnel.
(C00001,
Sec.
5,
p. 5-8; COO179,
p. 31).
Slotted drains have been designed
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on both
sides ofthe tunnel for surface water protection,
specifically, to
minimize the amount of
contact water
generated.
(C00001,
Sec.
5,
pp.
5-9 to
5-10; COO179, p.
31).
In his testimony for the Village, Mr. Nickodem raised criticism about the loading tunnel
and its safety.
(C0O214,
pp. 48-51).
He testified his design for Woodland provided for the
transfer trailers
backing into the transfer building for loading.
Id.
He further testified there is
more potential for accidents in a backing maneuver than the drive through maneuver proposed by
Lowe.
Id.
d.
Tarping and Weighing.
After the transfer trucks have been loaded, they will be tarped indoors,
an additional
feature that exceeds standard design for a waste transfer station,
to completely eliminate the
potential for blowing litter.
(C00001,
Sec. 2, pp. 2-4 to 2-5; COO179,
p. 33).
All pavement in
the tarping gallery is within the contact water system and
any water will go into the contact water
storage
tanks instead of into
the surface water
system.
(C00001,
Sec.
5,
pp. 5-9
to
5-10 and
Drawing 5-E-4;
COO 179, p.
32).
It is plain to any observer that these design features and
operating practices will
minimize impacts to
surrounding property owners.
e.
Storm Water Management.
The storm water system designed for the Facility will cause all surface water on-site to
flow into
an underground
chamber where it will be stored before percolating into the ground.
(C00001,
Sec.
2, pp.
2-9 to
2-12;
C0O179, pp.12-13; COO223,
pp.46-62). The design includes
gently sloping vegetative waterways
allowing for the settlement of silt as water
flows through
those drainage ways.
There are water quality catch basins for the removal ofsilt, oil and grease
before stormwater enters the underground chamber.
The operations plan for the Lowe Facility
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provides for routine inspection and maintenance of the stormwater system.
Id.
There will be
no
surface discharge from the system (with the exception of a very small discharge in the event of a
100-year storm).
Furthermore, the storm water system is designed to
comply with both the
existing County drainage standards as well as the proposed McHenry County Watershed
Development Ordinance.
(C00001,
Sec. 2, pp. 2-9 to
2-12; COOI79, p.
12).
Mr. Nickodern, on behalfof the Village,
agreed it is not normal to
find
a lot ofoil, grease
and grit
that could get into thestorm water system on a transfer station
site.
(COO216, p.49).
He
further testified oil and grit separators are used in transfer station designs
to provide
additional
safeguards.
Id.
A leaking collection truck is a minimal occurrence at a transfer station.
(COO217, p.
16).
For the Village, Mr.
Thomas in
his report opined the water quality catch basins
were to
small to effectively remove oil
from the storm
water in highflow conditions. (CO0326, p.6).
However, he admitted he had done no
calculations to support this statement.
(COOl 89,
0.
63).
In
his report, Mr. Thomas recommended that the storm water run offat the Lowe Facility be pre-
treated.
(CO0326, p.
3).
However, he testified he knew of no transfer stations in the United
States that utilize pre-treatment of storm water.
(COOl 89, p.28).
For the Village, Mr.
Sutherland in his report opined the proposed detention provided by
Lowe will be significantly
less than the detention required.
(COO478).
However, on direct
examination, Mr.
Sutherland requested this statement be eliminated from this report.
(COO21 8,
•p.
69-71).
He further advised recommendation three in his report also required
correction.
Id.
He agreedmore detention is required under
the proposed McHenry County Watershed
Development Ordinancethan under existing regulations. (COO219, p. 18). Lowe is not required
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to meet the draft Ordinance.
Id.
at
p.
26
While criticizing the capacity of the proposed
underground storm water chamber, Mr. Sutherland admittedhe
had performed no calculations
that would demonstrate its lack of
capacity.
(COO218, pp.
92-93).
He further admitted he could
not
say the calculations contained in the application were incorrect.
(COO2 19, p.
13).
f.
Groundwater Protection.
A hydrogeologic study was completed by a licensed hydrogeologist and is included as
part ofthe application.
(C00002, App. A).
Other than Lowe’s witness, Doug Dorgan, no other
hydrogeologist testified and the County made no credibility finding in
support ofits resolution.
Geomembrane Liner
The Facility is designed to protect groundwater using a reinforced concrete floor with
sealedjoints to prevent leakage through the floor. As an
additional
safety feature,
the design
includes the placement underneath the entire transfer building of a high density polyethylene
•
geomembrane liner.
(C00001, Sec. 2,
p. 2-9 and Sec.
5,
p.
5-9
and Drawing 5-E-4; C00178
,
p.
139). The additional costof the installation of thegeomembrane is estimated at $50,000.
•
(COO186,p.61).
The geomembrane liner is a feature that exceeds standard design for a waste transfer
station and has never been used in Illinois in a transfer station facility design.
(CO0178, pp.
139-
140).
The geomembrane liner provides an
additional means of guaranteeing no groundwater
contamination from
the transfer process.
(C00001, Sec.
2,
p.
2-9; COO178,
p.
140;
COO179, p.
30).
The Facility will contain two storage tanks of 1,000
gallons each
that will be
more than
sufficient to handle any accumulated
liquid contact water.
(C00001, Sec.
5,
pp.
5-9 to 5-10;
C0O178, pp.
140-141).
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For the Village, Mr. Nickodern testified that the geomembrane linerunder the Lowe
transfer building provides
additional protection from any potential groundwater contamination.
(C0O216, p. 43).
Mr. Nickodem also testified a geomembrane liner was not proposed for
Woodland or any
other transfer station
facility he had
ever seen.
Id.
Mr. Nickodem further
admitted he never even considered such a design feature for Woodland even though Woodland is
adjacent to the Illinois prairie path and its
sensitive nature.
Id.
For the Village, Mr. Thomas testified one cannot make
a general statement about the
time it
takes water to move through any type ofgeneralized till because “in each location it’s
entirely different”.
(COO 189, p. 26).
Yet
in his testimony, he estimated, based on the modeling
previously done for the Village, that groundwater from the Lowe
site would take
10 to
20 years
• of travel time horizontally before it would reach the Village’s Well Number
8.
(CO19O, pp.78-
81).
Mr Thomas opined that the vertical travel time for water to percolate through the
120 foot
•
•
clay layer would be anywhere from three months to a couple of years. When asked the basis for
his opinion, he answered he had no actual knowledge ofthe soils under the Facility site and his
opinion was based on his experience.
Id.
U.
S. Route
14 storm water system goes directly into the same groundwater system of the
Lowe Facility.
(COOl 89, p. 30).
Mr. Thomas agreed the potential risk for contamination from
•
broken truck lines
on the site is the same as for vehicles on U.
S. Route
14.
Id.
at p.
47.
Mr. Thomas
admitted
lie knows of no transfer stations that have caused groundwater
contamination.
(COO 190,
p.’75).
He further admitted he knows ofno
contamination from surface
water run off at
any transfer station.
(COO 190, p.88).
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Groundwater Monitoring Wells
Additionally,
the Lowe Facility is designed with two groundwater monitoring wells that
will allow monitoring of groundwater beneath the Facility to
detect
any impact to
groundwater
from the transfer station.
(C00001,
Sec.
2, pp. 2-12 to
2-13; COO179, pp.
5-6).
The State of
Illinois requires monitoring wells
for landfills, but not for transfer stations.
(COO199, p. 66).
Again, this feature is a first in Illinois for
a transfer facility not associated with an
existing
landfill.
The record discloses the Lowe Facility will not have any impact on area wells or down
stream Lake Killarney or Lake Plote due to the number of redundant design features including
the geomembrane liner and
the two groundwater monitoring wells.
(COO 179, p.
7).
The record
clearly discloses that the Facility was designed with the protection of the area’s groundwater as
one of its key design elemnents.
g.
Additional Special
and Unique Design Features.
In order to avoid developing
a wind tunnel effect in the loading tunnel, the transfer
building has been designed with automatic doors that will shut after transfer trucks
enter the
tunnel— further reducing the potential
for litter and noise.
(C00001,
Sec.
5,
pp.
5-7 to
5-8;
COO179, pp.
33-34).
The transfer building has been designed to
have the open
side face into the
prevailing wind.
The wind will hit the closed or blind side ofthe building minimizing the
potential for wind-blown distribution of litter from the building or tunnel.
(C00001,
Sec.
5, pp.
5-3
to
5-4;
COO179, p.
34).
Another special
design feature minimizing
any potential impacts
is the loading tunnel
system. The loading tunnel will be 10-feetbelow grade and lined on the side nearest Bright Oaks
with an exterior earthen berm and
landscaping.
(C00001,
Sec.
5, p.
5-3; C0O179,
pp. 34-35).
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There will be an additional six (6) foot high retaining wall along the edge ofthe tunnel ramps
into and out of the transfer building.
(C00001, Executive Summary;
Sec.3,
Part 2, Drawings 3-
L-1
to 3-L-3).
This combination ofdesign features clearly will minimize noise, litter and visual
impact to the Bright Oaks Subdivision and
The Hollows.
As an additional redundant design safeguard, there will be a second inspection inside the
scale house building to
confirm transfer trucks
are properly tarped and operating properly. There
will be
a control gate inside the scale house operated by the scale house attendant.
~
transfer
truck will be allowed to
leave unless the trailer has been fully covered and inspected.
(C0000 1,
Sec.
5,
p. 5-8 and Drawing 5-E-9;
COO179, pp. 35-36).
The transfer building
is designed using pre-cast concrete which exceeds standard design
for a waste transfer station.
Over
95
of transfer
stations are constm-ucted using metal.
The
concrete construction will provide noise abatement and
aesthetics.
(C00001, Sec.
5,
p. 5-4;
COO 179, p.
38).
The concrete structure eliminates the need for any provisions for insulation
for
noise
abatement purposes.
The concrete structure is
another amenity that is not part of the
conventional transfer station design.
(COO 179,
p.
38).
The transfer building incorporates a number of additional
design features to minimize
potential odor and to provide vector control, including having automatic doors on the tunnels,
opening the building on
only one side, mechanical carbon filter ventilation, prompt removal of
waste,
daily cleaning of the transfer building and paved surfaces, the concrete transfer building,
retention of a professional exterminator and no overnight storage of waste on site.
(C00001,
Executive Summary and Sec.
5, pp.
5-3 to
5-4;
COO179, pp.
40-42).
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For the Village, Mr. Nickodem testified that removing all the waste from the tipping floor
at
the
end
of each
day
is
the
key
to
controlling
vectors,
along
with
good
housekeeping
and
maintenance practices.
(COO217, pp.
23-25).
He agreed that all ofthe odor control measures
he
proposed for Woodland were included in the Lowe Facility.
(COO217, pp.
25-28).
However, the
Woodland facilityplanned to store waste after hours on the siteboth in
the building and outside.
Id.
He included no carbon filters in his Woodland design, but agreed that carbon filters in the ceiling
ventilation system
as proposed by Lowe would reduce odor. (COO217, pp.
30-31)
h.
Landscaping
Plans.
The Facility
was
designed
to
protect
The Hollows
adjacent
to
the
Facility
through
an
extensive
landscaping
plan,
building
orientation
and
building
appearance,
installation
of
the
geomembrane liner and groundwatermonitoring wells and operational features specifically selected
to minimize any potentialimpacts. (C0000 1, Sec. 2, p.
2-3).
The landscaping plan was developed
through consultation withthe Conservation District
and its staff.
(C00001,
Sec. 3, Part 2;
COO 178,
p. 138). There is also extensivelandscaping and atiered bennproposed for the easternproperty line
that faces Bright
Oaks.
(C00001,
Sec.
3,
Pai-t
2,
Drawings
3-L-1
to
3-L-7;
COO192,
pp.22-23).
Evergreen tress were chosen for the landscaping to provide a year-roundscreening.
(C00001, Sec.
3, Part 2;
COO 195,
pp.
93-94).
It is
indisputable the record discloses
the Facility has been designed with provisions
that
exceed industry standards and regulatory requirements.
It is also clearly evident from therecord the
design ofthe Facility will protect the public health, safety and welfare.
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4.
The Transfer Station Is Located So As to Protect the Public
Health, Safety and Welfare.
The site chosen for the
Lowe Facility is zoned
12
-
Heavy
Industry in
McHenry County.
(C0000 1, Sec.
3, p.6). The Facility has direct accessto U.S. Route 14, a federal highway, with traffic
volumes
averaging
23,700
per day.
U.S.
Route
14
is
a Class I Roadway with
a
weight limit of
80,000 pounds per vehicle.
(C00001,
Sec.
6,
p.6).
The County’s Solid Waste Management Plan,
10-Year Update states that the ideal transfer station location should have access to major roadways.
(C00002,
App.
H,
p.
8-47).
The
County’s
Plan
also
states
that
a
transfer station
should
be
in
industrial
zoned
areas.
Id.
p.9-36.
The record discloses
the
Lowe
Facility’s
location meets
the
standards ofthe County’s Plan.
See Criterion
3,
page 23, for more detail,
infra.
5.
The Facility’s Operations Plan Is Designed So As
to
Protect the Public Health, Safety and Welfare.
TheFacilitywill not accepthazardous waste.
(C00001, Application;
Sec.
5, pp. 5-2 and
5-3).
Incoming waste will be screenedfor potential hazardous wasteby trainedemptoyees.
(C0000 1, Sec.
5,
pp. 5-22
to
5-24;
COO 179, p.
29).
In the event any potential hazardous waste is brought on site,
it will
immediately be segregated into a contingency waste management
area in order to identify,
preclude and,
ultimately, determine the appropriate method for disposal.
Id.
Emergency response
contractors will be retained to identify, test, isolate and haul off any material deemed as hazardous.
Id.
Lowe
will
retain
a
certified
transfer
station
operator
as
manager,
even though
Illinois
presently does not require certification of transfer station operators.
(CO0179, p.
39).
The entire
staff will be
required
to
receive
training
in
waste
screening,
health
and
safety
protocol
and
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emergencyresponse. (C0000 1, Sec.
5,
p.
5-22;
COOl 79, p. 39). Lowe will assign a minimum ofone
laborer for litter management.
(C00001, Sec.
5,
pp.
5-15
to
5-16;
C0O179, p. 40).
Therecorddiscloses the superior qualificationsofLowe’s experts Keith Gordon,Dan Zinnen
and Doug Dorgan.
It is indisputable that Mr. Gordon’s experience and recordin solid waste transfer
station design and management arerecognizednationally. As this Board has determined previously,
a facilitydesignedby an experienceddesign engineer to be in compliance with the standards
for
non-
hazardous waste set by the Illinois Environmental Protection Agency satisfies Criterion
2.
Clutts
v. Beasley,
185 Ill.App.3d 543
(5th
Dist.
1989).
As the record clearly and plainly demonstrates the
Lowe Facility was designed to
not only meet existing standards but, in fact,,exceeds most ofthose
standards.
As demonstrated by the record, the Village’s witnesses only speculated on general issues of
possible concern. All ofthe Village’s witnesses failed to provide any evidence and, in
many cases,
their opinions were contradicted by their own testimony.
The record is devoid of any evidence the
design ofthe facility does not meet EPA and industry standards.
The record,
in fact, discloses all
governmental minimum standards havebeen met and in many cases exceeded.
The record clearly
demonstrates
Lowe
employs state-of-the-art
technology
in both
design
and
operations
—
a fact
acknowledged by siting committee members and opponents.
The manifest weight ofthe evidence
in
the record clearly
and plainly demonstrates Lowe met its burden of prooffor Criterion
2.
B.
The County Board’s Finding on Criterion
3
Was Against the
Manifest Weight ofthe Evidence.
Criterion
3: “the Facility is
located so
as
to minimize incompatibility
with
the character ofthe surrounding area and to minimize
the effect on the
value ofthe surrounding property.”
415 ILCS
5/39.2(a)(iii)
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The County Board’s
finding on
Criterion
3
was
also
against the manifest
weight of the
evidence.
Criterion
3 requires only that the applicant establish the facility be located to minimize, not
eliminate, the effect on surrounding property values.
File
v. D&L Landfill,
219 Ill. App.3d
897
(Sth
Dist.
1991).
Thelaw requiresonly that the locationminimize incompatibility and effect on property
values, not guarantee that no fluctuation will result.
Clutts
v. Beasley,
185
Ill. App.2d 543
(5~’
Dist.
1989).
Nor does the statute require the applicantchoose thebest possible location to guarantee that
no fluctuation in property value occurs.
Sierra Club v.
Will County Board,
PCB 99-136, slip op.
at
27 (1999), citing
Clutts
v. Beasley,
185
Ill.App.2d 543
(Sd~
Dist.
1989).
Criterion
3
does not require proof that
the applicants
can assure the public
an
odor-free
facility or roads utterly devoid of stray papers.
E & E Hauling
Inc.
v. Pollution Control Boarçll
16
Ill.App.3d 586
(2nd
Dist.
1983).
Few applicants could gain approval under
a standard
so
strict.Id.
This criterionrequires an applicantto demonstratemore thanminimal efforts1
reducethe -fac-i-i.ity’s
incompatibihity.
File,
219 Ill.App. 3d at 907.
An applicantmust demonstrate that it has done or will
do what is reasonablyfeasible to minimize incompatibility.
TO. TA.L.
v.
City ofSalem~CB
96-82
(1996);
Waste Management,
Inc.
v. Pollution Control Board,
123 Ill.App.3d 1075
(2hldDist.
1984).
Criterion 3 calls for the facilityto be located so as to
‘minimize’ incompatibility—butdoes not allow
rejection simply because there might
be
some reduction
in
value.
A.R.F.
Land.flll,
Inc.
v.
Lake
County,
PCB 87-5 1
(1987), citing
Watts TruckingService, Inc.
v.
City ofRockIslana~,
PCB 83-167.
Lowe,
in
its
Application
and
at
the
public
hearing,
demonstrated
that
no
or
little
incompatibility
exists
and
that
it
had
taken extraordinary
measures
to
minimize
any
perceived
incompatibility and property value impact.
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1.
Lowe’s Witnesses.
Larry Peterman
Mr. Lariy Peterman
testified regarding the first part of Criterion 3.
Larry Peterman
is the
Vice President ofReal Estate Developmnent for Hitchcock
Design Group and has over thirty-two
years of experience in land planning.
He has been involved in over one-thousand projects related
to
hand plamming and
evaluating compatibility of property, including
sand/gravel excavation
amid
•long-term reclamation plans for Prairie Materials and Meyer Materials aiid
landfill expansion
and transfer site for CDT Landfill.
(C00001, Application;
COO191, pp. 60-61).
Frank Harrison
Frank Han-ison testified regarding the impact of the Facility on property values.
Mr.
Harrison is a professional real estate
appraiser and consultant who has worked in the real estate
industry for 32 years.
(C00001, Application;
COOl9l,
p. 6).
He has CRS, MAI
amid CRE
designations as an appraiser.
(C00001, Application;
COO191, p.
7).
Mr. Harrison has extensive
experience in evaluating impacts of property values due
to various land uses, including interstate
highways, gravel operations, sewer treatment plants and peaker power plants.
(COO191, pp.
8-9).
•
He has appeared in administrative proceedings regarding zoning issues in an
estimated 30 to 40
different governmentaljurisdictions primarily within McHenry and Lake counties.
(COO 191,
p.
11).
Mr. Harrison was appointed to the original Real Estate Appraisal Board ofthe State of
Illinois in
1989 by Gov. James
Thomnpson.
(C00001, Application).
He was on the Board
-for
10
years serving as its
Chair for the last two years.
Mr. Harrison has written courses, books
and
seminars for the Appraisal Institute.
In 1996, his book,
Appraising the Tough
Ones,
was
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published by the Appraisal Institute.
Mr. Harrison has received numerous awards in the appraisal
field including being the recipient twice of the Appraisal Institute’s George L.
Schmutz
Memorial Award for his contributions
to the advancement of appraisal knowledge.
Id.
2.
Village’s Witness.
The Village
approved Resolution No. #R03-O2-Ol, A Resolution
in
Opposition to
the
Siting of the Northwest Highway Transfer Facility at 3412 Northwest I-Iighway, on February 4,
2003.
(C01299-CO13O1).
Afterwards, the Village hired its witnesses attempting to
back up their
public
statement ofopposition.
The Village offered N. Drew Petterson as
its witness regarding the incompatibility
portion of Criterion
3.
Mr. Petterson admitted
lie had never visited a transfer station
site before
writing his report or giving his testimony in
opposition to the Lowe Facility.
(COO2O9, p.39-41).
Mr. Petterson further admitted he had never previously rendered an opinion on a transfer station
nor
done any studies concerning Criterion
3.
(C00209, p.44).
3.
Bright Oaks’
Witness.
Bright Oaks offered John T. Whitney as
its witness on the propem-ty value portion of
Criterion 3.
COO22O (p. 24).
Mr. Whitney prepared no written report.
He simply offered
testimony.
Id.
4.
The Location of the Facility Minimizes Incompatibility.
Mr. Peterman evaluated the location ofthe Facility relative to
adjacent land uses by
reviewing all the appropriate subdivision and zoning ordinances and comprehensive plans.
(C00001, Sec.
3, Part
1, p. 4; COO191,
p. 63).
Mr. Peterman reviewed the site plan for the
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•
Facility.
(C00001,
Sec.
3, Part
1, pA.;
COO192,
p.
18).
He also examined the site and the
surrounding area.
(C00001, Sec.
Part
1, p.4;
C00l91, p.64).
The proposed Facility and surrounding properties are not incompatible.
The proposed
Facility site is zoned 1-2.
(C00001,
Sec. 3, Part
1, p.
6; COO191,
p.
5).
The Welch and Lowe
Enterprises properties immediately adjacent to
it are also zoned 1-2.
(C00001, Sec.
3, Partl, p.
9;
COOl9l, p.
5).
Both the Facility site and the adjoining properties to the south
and southeast
presently have heavy industrial uses.
Id.
The Facility’s existing zoning classification would
allow for many more intense industrial uses than the proposed waste transfer
station.
(C00001,
Sec.
3,
Part
1, p.
19;
COO 192, pp. 26-27;
C00263-C00276).
Permitted uses in the Heavy Industry
zoning district
include such intense uses as meat packing plants, automobile wrecking yards,
recycling collection
and processing facilities, rendering plants, sawmills and slaughterhouses.
•
(C00001,
Sec. 3,
p.
19;
CO0263).
Although
the adjacemit property, The Hollows, has a
recreational use, it is also zoned 1-2, and, as such, maybe leased for an industrial
use.
(COO192,
p.
8).
Thus, the character ofthe surrounding area is significantly imifluenced primnarily by existing
industrial, business and related uses,
and no incompatibility exists.
(C00001,
Sec.
3, Part I, p.
12; COO192, pp.
5-7).
As previously mentioned, the USEPA classifies waste transfer stations as a “light
•
industrial” use (C00001, Sec. 3,Part
1, p-i9).
However, the County staff and
consultants were
not
convinced transfer stations
are best classified as
an “industrial” use. (CO3868).
In its
findings
of fact, the County staff and consultants
concluded transfer stations lack any type of
•manufacturing element.
As such,
transfer station operations more closely reflected an intense
commercial use, rather than industrial type of use.
Id.
Whether deemed an “intense
commercial”
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or a “light industrial” use, theproposed Facility is clearly comnpatible with surrounding property
uses and certainly less intense than the pennitted uses under the 1-2 zonimig district.
The landscaping for the site along the northwesterly boundary was designed in
consultation with the McHenry County Conservation District to protect The Hollows.
(C00001,
Sec.
3, Part
2
;
C00192, p. 26).
The types and amounts ofvegetation along thejoint property
him-ic
with The Hollows were selected as a result of this consultation.
There
is also an extensive
landscaping and
berm
proposed for the eastern property line that faces Bright Oaks.
(C00001,
Sec.
3, Part 2, Drawings
5-L-1
to 5-L-7;
COO 192, pp. 22-23).
Evergreen tress were chosen for
the landscaping to provide a year-round screening.
(C00001,
Sec.3,
Part 2;
COO192, p.22;
COO195, pp.
93-94).
The cost estimate for the landscaping to create
a buffer to
the properties to
the east was $100,000.
(C00l94. p. 22).
Mr. Peterman identified fourteen factors demonstrating the Lowe Facility met the first
part ofCriteriomi
3.
(C00001, Sec.
3, Part
1, pp.
19-21).
These
factors included its industrial
zoning, its
access to
a federal highway, no overnight storage of waste
omi site, peak traffic pemiods
for Lowe
do
not coincide with the U.S. Route
14 peak traffic periods, the extensive landscapimig
plan,
and the design and operations plan for the Facility.
Id.
The Village witness, Mr. Petterson, never comitradicted the evidence provided by Lowe.
In fact, Mr. Petterson agreed the concrete transfer buildimig would provide a visual screen better
thami
a metal building and would reduce the sound emanating from the site.
(C00209, pp.32-36).
Given the landscaping proposed for the Facility, Mr. Petterson testified the only part of the
Facility you would probably
see
fromn Bright Oaks would be the top ofthe transfer building.
Id.
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Mr. Petterson agreed the underground transfer trailer tunnel will screen noise from Bright Oaks
and the Hollows and
the carbon filters will mitigate odors.
Id.
Mr. Petterson never was on the proposed site, he simply drove by.
(C00209, p. 35).
At
the hearing, Mr. Petterson admitted the opinion in his report that the Facility was not large
enough to create an effective buffer was not
based
omi any personal expertise with odors
emamiating from a transfer station, nor any studies ofhow large buffers mieed to be to be effective.
(C00209, pp. 42-44). Instead Mr. Petterson’s
opinion was based solely on conversations with the
Village hired experts who told him there would be odors.
Id.
In fact, throughout his
testimnony,
Mr. Petterson consistently admitted his opinions
on various
features of the Facility were not
based on any
studies nor grounded upon his education, experiemice and
expertise but were
based
on conversations with the Village’s retained witness, Mr. Nickodem.
(C002O9, pp. 46-50, 53-
54).
Mr. Petter~on
acknowledged he had mio persomial knowledge of the effects of noise and
odor fromn
a transfer station on adjoining properties.
(C0O209, pp.
53-57).
Mr. Petterson
admnitted he relied totally on Mr. Nickodem’s comments as the basis
of his opinions instead of
any personal knowledge or experience.
(COO2O9, pp. 63-65).
The record clearly reveals that with the location of the Facility in
an area of industrial and
commnercial uses as well as the many extensive design features proposed for the Facility there is
no
or little incompatibility and that Lowe has taken extraordinary measures to minimize any
perceived incompatibility.
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5.
The Location ofthe Facility Minimizes the Effect
on Property Value.
Lowe also demonstrated that it had taken extraordinary design and operational mneasures
to minimize any impact the proposed Facility might have on
surrounding property values.
Mr. Harrison testified he is very faniiliar with the Facility site and its
surrounding
properties as he has appraised those propel-ties in the past.
(COO 191,
p.
12).
He inspected all
properties within one mile of the Facility as well
as inspecting the applicable zoning maps and
comprehensiveplans for both McHenry County and the Village.
(C00001,
Sec.
3, Part 3, p.
1;
COO191,p.
13).
As part ofhis property value impact study, Mr. Harrison studied eight waste transfer
stations located in the Chicago area.
(C00001, Sec.
3, Part
3, p.
1; COOl9i, pp.
25-26).
In
•
investigating the eight transfer stations, he attempted to determnine the character of the
•
surrounding area to determine whether any of the stations would be potentially applicable to the
study he was undertaking with respect to
the Lowe Facility. He used four of the eight transfer
stations in Ins study.
(C00001, Sec.
3, Part 3, p. 2; C0019i, pp.
27-28).
Mr.
Harm-ison performned
his study by evaluating a “target area” and a “control area.”
A “control area” is
an area where the
propel-ties are similar to those in the “target area”, but they are removed from the potential area of
influence, usually by geographic means such as distance.
(C00001, Sec.
3, Part 3,
p.’7; COO191,
pp.
31-32).
a.
Northbrook Transfer Station Study.
Mr. Harrison analyzed the Northbrook Transfer Station (“Northbrook”), located in
unincorporated Northfield Township, adjacent to the Villages ofGlenview and Northbrook.
(C00001, Sec. 3, Part
3, p.
6;
COO191,
p.
33).
Northbrook received an
average of approximnately
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350 tons
ofwaste per day in
1998
and 1999.
It is situated on
approximately 2.42 acres.
(C00001,
Sec.
3, Part
3, p. 6;
COOI91, p.
36).
Northbrook is located within approximately 200 feet of a town honie development known
as Princeton Village.
Princeton Village and Northbrook are separated by
a railroad right-of-way.
(C00001,
Sec.
3, Part
3, p. 7;
COO191, p.
34).
Northbrook
has been in existence and operational
since
1983.
Id.
Princeton Village, which consists of 195
attached town home units, commenced
development in
1989 and is presently fully developed.
The price range for the town homes in
Princeton Village
is between $300-$400,000.
Id.
Mr. Harrison testified there were no other similar developments to Princeton Village in
the general geographic area he could use for comparisonpurposes.
(COO191, p.
35).
He used a
line of approximately 1,000
feet fromn the transfer station as the separation
for the target
amid
control areas.
Id.
After Mr. Harrison identified his target and control areas for Northbrook, he obtained
information relative to sales that have occulTed in both those areas.
He
used the Multiple Listing
Service records
and public records at the township
offices.
(C00001, Sec.
3,
Part 3, p.
7;
COO191, p.
36).
For the target area, he identified 37 properties where there were sales and re-
sales between March of 1990 and February of2002.
(C00001,
Sec.
3,
Part 3, p.
8;
COOl9l,
p.
36).
He did not
do any adjustments to the sale and re-sale data.
(COO191, p. 37).
Based on the
sale and re-sale data he obtained,
Mr.
1-larrison concluded that the annual appreciation rate for the
target area was 1.257
per year.
(C0001,
Sec.
3, Part 3, p.
8;
C0019l, pp.
37-38).
For the
control area, he found 25
sales.
Based on his sale and re-sale data, he detennined an average
aimual appreciation rate for properties in the control area of 1.325.
Id.
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Based on his
comparison ofthe ammual
appreciation rates for the target and control areas,
Mr. Han-ison concluded that the location of the Northbrook Transfer Station did not influence
surrounding property values.
(C00001, Sec.
3, Part 3, p.
9; COOI91, pp. 38-39).
Testifying forBright Oaks, Mr. Whitney agreed that the Northbrook site in
Mr.
Harrison’s study was most representative ofthe Lowe site.
(C0O220, p.77). 1-lowever, Mr.
Whitney testified there are two factors in Princeton Village that could possibly effect
time values
ofsurrounding property
—
the railroad track and the transfer station, (C0O220,
pp..55-56).
He
further agreed the value ofhomes in Princeton Village
already reflected the influence of the
railroad track because the railroad track pre-existed the development of Princeton Village.
(C00220, pp.
56-59).
Letters From
Princeton Village Residents
There were two letters sent to the County Board from residents in
Princeton Village.
(COO191, pp. 42-46;
CO2450-CO2452).
Mr. John Crawford, a lawyer,
is the President of the
Princeton Village Homeowners’ Association as well as a Trustee of the Glenview Village Board.
Id.
Princeton Village was approved by the Glenview Plan Commission and the Village Board
twelve years ago.
The village officials did not find the creation ofPrinceton Village to
be
incompatible with the operation of the Northbrook transfer station.
Princeton Village has many
residents, including Mr. Crawford, who have been there from the beginning, and the value ofthe
homes has
increased consistently over the years.
Id.
Mr. Wilhiamn Baslikin,
an
appraiser, lives in
omie ofthe buildings closest to Northbrook.
Id.
All ofthe properties in Princeton Village have consistently mnaintained their property value,
and, in fact, values have increased each year.
In Mr. Bashkin’s work as well as in
discussions
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with other residents ofPrinceton Village, the slight difference in
value ofhomes between homes
on the western and eastern side of the subdivision is directly attributable to the location of the
railroad tracks and not to the uses on the east side of the tracks.
Id.
Who
would be in
a better position to verify the lack of impact of a neighboring transfer
station than the residents who have lived near one for years?
According to County staff, the
letters ofJohn Crawford and William Bashkin indicate the residents ofPrinceton Village do not
believe the presence of the Northbrook transfer station has an imnpact on their property values.
(CO3872).
b.
Groot Transfer Station
Study.
Mr. Harrison analyzed the Groot Chicago Transfer Station (“Groot”)
located near O’Hare
Imiternatiomial Airport.
(COO191, pp.
46-47).
Groot sits on 6.63
acres.
In the year 2000,
it
received 1,888
tons of waste per day.
(C00001, Sec.
3, Part 3,
p.
18;
COO191, pp
47-48).
Mr.
Harrison set up the target area approximately 1/4 mile
fi-orn Groot in all directions.
The target
area contained 43
improved industrial properties that
sold between April of 1985
and August of
2002.
(C00001,
Sec.
3,
Part
3, p.
19;
COO191, p.48).
The control area was located in the samne
industrial park but approximately 3/4 mile away from Groot.
For the control area, he
found 42
sales that occurred between December of 1987 and June of2002.
Id.
Mr. Harrison did two types of analyses for Groot.
(C00001, Sec.
3, Part
3, pp.
19-21;
COO 191, p. 48).
He first looked at the avemage unit price of the industrial sales in
both the target
and control areas.
He calculated the average sales price in the target area was $34.63
per square
foot; for the control area, it was $33.54 per square foot.
(C00001, Sec.
3,
Part 3, p.
20; COO191,
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p. 49).
Based
on that data, Mr. Harrison concluded that there was no influence by Groot on
surrounding property values.
Id.
In addition to doing an average unit price analysis,
Mr. Harrison did
a sale and re-sale
analysis in the same target and
control areas.
He identified 6 sales and re-sales
in the target area
and calculated an average appreciation rate ofover 3
per year.
(C0000i,
Sec. 3, Part
3, pp.
20-
21; C00191,
pp.
49-50).
For the control area, he found 7 sales and calculated
an average
appreciation rate of2.34
per year.
Id.
Based on his analyses of the average unit prices and sale
and re-sale analyses, Mr. Harrison concluded that Groot had no measurable influence on the
value of imidustrial properties in
the surrounding area.
(C00001, Sec.
3,
Part 3, p.
21; COO191,
p.
50).
c.
Rolling Meadows Transfer Station Study.
Mr. Han-ison analyzed the Rolling Meadows Transfer Station (“Rolling Meadows”).
This
facility is located on
6.7
acres and
in the year 2000 received 755,000 tons ofwaste.
(C00001,
Sec.
3, Part
3, p.
30; COO191, pp.
50-51).
For Rolling Meadows, there was insufficient sale
activity
to do
any type of meaningful sale and re-sale analysis.
(COO191, p.
51).
Mr. 1-larrison
divided
the target area and the control area with
a large industrial property.
For the target area, he identified 8 properties that had sold between September
of 1995
and December of 1999.
(C00001, Sec.
3, Part
3, pp. 31-32).
Based
on those sales, lie calculated
an average unit price of $42.17 per square foot.
Id.
For the control area, he found
11
properties
that sold with an average unit price of $42.63 per square foot.
Id.
From
his comparison ofthose
average unit prices between the target and control areas,
Mr. Harrison concluded that there was
no
measurable impact on sun-ounding industrial property values by Rolling Meadows.
Id.
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d.
ARC Disposal and Recycling Facility Study.
Mr. Harrison’s fourth
study involved an analysis of the ARC Disposal
and Recycling
Facility (“ARC”) in Mt. Prospect, Illinois.
The ARC facility is
located on 3.28
acres and was
constructed in
1984.
(C00001,
Sec. 3, Part 3, p.
39;
COO191,
p.
54).
In the year 2000, it received
an average of922
tons of waste per day.
Id.
Mr. Harrison included ARC
in his analysis because the Village’s Comprehensive Plan
designates part of the adjoining property as “multiple famnily” and there are numerous apartmnent
buildings near ARC.
(C00001, Sec.
3,
Part 3,
p. 40; COO191, pp.
52-53).
In analyzing whether
ARC had any impact on the neighboring apartment buildings, Mr. Harrison first investigated
whether there had been
sales ofany
apartment buildings and found there had not been.
(C00001, Sec.
3, Part
3, pp. 40-41;
COO191, pp.
53-54).
Therefore,
he conducted his
analysis by
determining whether the amount ofrent charged for those propel-ties had been effected
by the
facility.
Id.
Mr. Harrison used three apartment complexes as the target area and
six apartment
complexes
as the control area.
(C00001, Sec.
3, Part 3, p. 41;
COO191, pp.
54-55).
In addition to
analyzing the rent,
Mr. Harrison also spoke to
a number of managers ofthe apartment buildings
and inquired as to what factors affected their occupancy rates.
(C00001, Sec.
3,
Part 3, p.
42;
COO191, p. 55).
Based on his
imiterviews with managers and the analysis of the rents in the area,
Mr. Harrison concluded that rents for the target and control areas were reasonably close and that
ARC
has not influenced the rents for apartments in the surrounding area.
(C0000 1, Sec.
3, Part
3, pp. 42-43;
COO191, pp. 55-56).
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Mr. Harrison concluded that based on the analysis he performed at the four different
transfer station sites, the Lowe Facility is located and has design features that will minimize any
effect
on the value of surrounding property.
(C0000l,
Sec.
3, Part
3, p.
43; COO191, pp.
56-57).
The testimony of Bright Oaks witness did not diminish any ofthe testimomiy offered by
Lowe’s witness.
Mr. Whitney adlnitted he was not present to hearMr. Harrison’s testimony.
(COO22O, p.55).
While the majority ofMr. Whitney’s comments related to
his objections
to the
Inethodology Mr. Harrison had used, Mr. Whitney agreed the methodology of target and control
areas is an acceptable method
of evaluating values.
(COO22O, p.54).
According to
County staff
and consultants, the procedure used by Mr.
Harrison was appropriate to
detennine imnpact of a
proposed development on surrounding properties.
(COO3 871).
Mr. Whitney admitted gravel mining
on The Hollows site
pre-existed the development
of Bright Oaks
and the mining
on the Plote property took place subsequent
to the development of
at least part ofBright
Oaks.
(C0022O, pp.60-62).
He further admitted Bright Oaks values
already incorporate these surrounding industrial uses.
He also
agreed the heavy industrial uses
adjacent to Bright Oaks and the potential zoning and heavy uses of adjoining properties did
not
inhibit the development of Bright Oaks.
Id.
Mr. Whitney admnitted he made no independent
study ofthe raw figures he
used to
critique Mr. Harrison’s report.
(COO22O, p. 63).
He was unaware of any published reports on the
impacts oftransfer stations
on communities in northern Illinois nor did he consult with any other
professionals with experience in transfer stations before reaching his opinions.
(COO22O, p. 83).
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Board Member Ann Kate
Siting Committee Memnber Ann Kate asked Mr. Whitney:
Bright Oaks has a grocery store strip mall shopping center with fast food restaurants
not too far away.
It has an extremely busy highway, Highway 14 not too
far away,
and atone
timne it had gravel mnining.
There is industry around.
There is a railroad
track nearby.
Would a transfer station make that much difference if it went in?
(COO22O, pp.
80-81).
Mr. Whitney replied
“without
having done
a
proper study on
the
effect
ofsurrounding property values,
I really
couldn’t responsibly answeryour question.”
Id.
Mr.
Whitney furtherresponded to Ms. Kate, “I
don’t have an opinion until
I
do thattype of
analysis.”
Id.
As County staff ~nd consultants observed in its findings offact, Mr. Whitney raised numerous
concerns
about the methodology used, but
he
did
not say Lowe’s proposed development would
negatively imnpact property values.
(CO3873).
In fact, he had no
opinion on the subject.
Id.
As
the
record
discloses,
Mr.
Petterson
and
Mr.
Whitney
only
speculated
on
possible
concerns.
Mr. Petterson and Mr. Whitney failed to provide any evidencein the record and, in many
cases,
they were
contradicted by their own testimony.
The record discloses
the suitability of the
location for a waste transfer station
and the substantial features incorporated into the design and
operation ofthe Facility to minilnize any perceived impacts
onsulTounding properties amidproperty
values.
Themanifest weight ofthe evidence in therecord clearlyand plainly delnonstrates that Lowe
met its burden of proof for Criterion
3.
-
C.
The County Board’s
Finding
on
Criterion 5
Was Against the
Manifest Weight ofthe Evidence.
The County Board’s finding on Criterion 5 was againstthe manifest weightofthe evidence.
Criterion
5:
“the plan of operations
for the Facility
is
designed
to
minimize
the
danger to the sun-ounding area from
fire, spills or other operational accidents.
415
ILCS 5/39.2(a)(v)
-
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Criterion
5
requires minimization,
miot
elimnination, of any problemns because it is virtually
impossible to guarantee that no accidents will occur.
Wabash andLawrence Taxpayers Association
v.
Pollution
Control Board,
198
Ill. App.3d
388
(5th
Dist. 1990).
The issue is safety, with the
emphasis
on
avoiding
or minimizing
damage
from
catastrophic
accidents.
Industrial Fuels
&
Resources
v.
Pollution
Control
Board,
227
Ill.
App.3d 533
(1st
Dist.
1992).
Ami
accident-proof
facilityis not required.
Id.
Criterion
5 does not allowrejection ofsite locationsuitability based only
on the existence of a danger; rather, it requires approval if the facility is
designed to minimnize the
danger.
Watts
Trucking Inc.,
v.
City ofRocklsland,
PCB 83-167 (1984).
A plami of operations is
sufficient where it provides
a reasonable blueprimit
or overview of
procedures, and includes (a) identification ofpersonszesponsib1e~forimpiemneiitation,
(b) descriptiomi
of emergency procedures,
(c)
list of outside
agencies
to
be
notified
and (d)
emnergency response
instruction for facility personnel.
Industrial Fuels
& Resources
v.
Pollution Control Board,
227
Ill.App.3d 533 (1s~Dist.
1992).
The planneednot include all details ofany coordination agreements
with police, fire and disasterrelief agencies.
An alleged lack of detail will not establish that the plan
is
insufficient.
Fairview
Area
Citizens
Task Force
v.
Illinois
Pollution
Control
Board,
198
Ill.App.3d 541 (3’~
Dist.
1990).
There is no requirenient that
emnergencyprocedures be in
writing.
A.R.F. Landfill,
Inc.
v.
Lake
County,
PCB 87-5 1 (1987).
Lowe presented the testimony ofKeith Gordon regarding Criterion
5.
The Village offered
Andrew Nickodem as its witmiess on Criterion
5.
Mr. Keith Gordon testified the Facility is designed to minimize the danger to surrounding
areas
due to fire,
spills or other operational accidents.
(COO 179,
p. 43).
The transfer buildimig
is
a
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concrete structure.
(C00001,
Sec.
2,
p.
2-8;
COO179,
p.38).
This
design was
chosen
-for noise
abatement and aesthetics among other reasons.
It adds to the cost, but also adds to
the appearance
ofthe building and does a better job ofnoise abatement.
Id.
The transfer building is designed with
a segregated contingencywaste management areato isolate any unacceptable items foridentification
amid
appropriate rem~val. (C00001,
Sec.
5,
p.
5-28;
COO179,
pp.
28-29).
Lowe will
retain
the
services of an emergency response contractor to deal with any unacceptable wastes received at the
Facility.
Id.
Groundwater Protection
The Facility is
designed to
protect groundwater through
a design of the
tramisfer building
whereby all tipping will be on
a reinforced concrete floor with joints that will be
sealed so there is
no leakage through the floor. As an additional protective measure, the design includes theplacement
underneath the entire transferbuilding ofa high densitypolyethylene geomembrane liner.
(C0000 1,
Sec. 2,
p.
2-9 and
Sec.
5,
p.
5-9; COO178, p.139);
COO179, p.
30).
The geomembrane lineris a feature that exceeds standard design for a waste transferstation.
The geomemnbrane liner provides
an
additional
mneans of assuring there will
not
be
groundwater
contamination from the transferprocess.
(COO178, p.140).
Ofthe 12 transfer stations Mr. Gordon
is
cumTently working on, not
a
simigle
omme
except the Lowe Facility provides a geomembrane liner.
(COO 179,
p. 30).
A geomembrane liner is
not a common installation and is a design feature of the
Facility above and beyond industry standards and regulatory requirements.
Id.
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Internal
Traffic Flow
One of the health
and safety features for transfer station
design is
to
separate the transfer
trailer traffic froln the collection vehicle traffic.
(C00001, Sec.
2, p. 2-8 and Sec. 5, p.
5-8; COO179,
p.
36).
At
the Lowe
Facility,
both
the collection
vehicles
and
transfer trailers
have
their own
individual routes
on the site.
Id.
All
loaded vehicles have the right-of-way on the Facility site.
(CO0179, p.3 1).
Fire Prevention Plan
Lowe will be storing ~
waste on site overnight.
(C00001, Executive Summary; Sec.
5,
p.5-
4). This
operational decision was made not only to
reduce the potential impacts
from
odor
and
vectorsbut also to eliminate any possible fire hazard.
TheFacility hasbeen designedwith a hot-load
management
area (“fire pit”), sand pile and alarm systems to minimize the potential for accidents,
spills or fires.
(C00001, Sec. 5, p. 5-32 and Attachment 1, pp. 4-5; CO0179, pp. 43-44).
The lire pit
is
a unique design not common for transfer stations.
Id.
The pit is sized to hold the equivalent of
two
collection truck
loads.
This
allows
the segregation of the hot
load
from
other
areas
of
the
Facility.
Id.
The plan for this
unique feature
was
designed
in
coordination
with the
Cary Fire
Protection District and exceeds standard design for a waste transfer station.
(C00001, Sec.
5,
p.
5-
29; COO179, pp. 43-44).
•
In the event ofafire, Facility persommel will imnmediately direct thetruck orpush the material
into the fire pit.
Id.
The Facility has been designed with the purpose of prohibiting
the spread
of
fire.
Id.
The fire protection plan has been approved by the Cary Fire Protection District
as well as
the Applicant’s own fire safety consultant.
(C00001, Sec.
5,
p. 5-29;
C00002, App.
J).
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Adetailed Fire and Accident Prevention Plan was included in the applicatiomi. (C0000i, Sec.
5, Attachment 1).
This plan outlines the procedures for fire prevention
and control (pp. 3-5), spill
prevention and control (pp.
5-6),
accident prevention and control (pp. 7-8), non-conforlning waste
materials
(p.1 1),
managemnent
of
wastes
generated
from
emergency
actions
(pp.
12-13)
amid
temnporary interruption to
operations (p.14).
In his
testimony for the Village, Mr. Nickodem criticized the fire safety plans for the Lowe
Facility for not having a sprinkler system.
(CO0215,
pp.31-32).
However, he agreed
sprinkler
systems are not a standard design feature in the solid waste industry.
(C00215, p.84).
He testified
theproposed design ofthe Lowe Facilitydoes not violate any fire code regulations.
(COO2 16, pp.9-
10).
He agreed it is a rare occurrence that a fire protection service has to come to a waste facility to
assist
in a fire.
(COO216, p.15).
Mr. Nickodem testified the removal of waste from the Lowe Facility at the
end of each
operating day would lower the incidenceoffire.
(COO2 15,
p.1 18).
He furthertestified therewas less
chance ofa fire at the Lowe Facility than at
Woodland.
(C002l6, pp.
10-1 1).
Fueling of Equipment
To lnimmmze
the possibility of any potential contamnination due to
spills
durimig the fueling
of the equipment used on
site, Lowe
will have all
fueling done inside the transfer
building.
The
fueling will be done
in the area next to
the contingency waste management
area.
(C0000I, Sec.
5,
Attachment
1, p. 5).
In his testimony, Mr. Nickodem criticized Lowe’s plans for fueling the equipment used on
site. (COO2 15, p.3 1).
Hestated all the facilities he has seen fueltheir equipment outside the building.
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(COO21S, p.92).
He testified, however,
it is advantageous to
fuel inside in the event there was a
spill since the spill would
go
into the contact water system and be contained.
(CO0216, p.24).
Emergency Access Gate
To ensure there will always be access for emergencypersonnel and vehicles to the Facility,
Lowe has
provided
an emergency access gate to the site from its adjoining property.
(C0000I, Sec.
5,
p.
5-4;
COO 179,
pp.
79-80).
In the
event that the
access drive
is
totally blocked,
emergency
vehicles will have access to the site through this emergency entrance.
Id.
Mr.
Nickodem testified he had
not
provided
for
an
emnergency
access
to
the
Woodland
Facility.
(COO216, p.2.2).
He agreed if there was a lot oftraffic
at the entrance to Woodland, both
immbound
and
outbound,
it would be
a problem for emergency vehicles
to
have access
to
the site.
(COO216, p.22).
He agreed having an emnergency access as proposed for the Lowe Facility was an
advisable design
feature for transfer stations.
Id.
Operations Plan
Lowe developed both an Operations Planand aFire and Accident Prevention Plan for the
Facility.
These plans will be the operational guides for the Facility
and its
employees.
(C0000I,
Sect.
5
and Attachment
1;
COO 179, pp. 44-45).
All
staff will be required to have
tm-aimiing in waste
screening, health and safetyprotocol and emergencyrespon~e.(CO0179, p. 39). Lowe’s Operations
Plan provides forrandom inspections of incoming loads.
(C00001, Sec.
5,
p. 5-23). At least three
times a week,
truckloads will be selected
and
scrutinized.
Id.
Lowe
will hire a certified transfer
station operator as the manager for the Facility.
(COO 179, p.
39).
Though certified transfer station
operators
are not currently
a requirement
in
Illinois,
it
is
required
in
many
othem
states.
Id.
A
d~tailedOperations
Plan
was
included
in
the
application
dealing
with
such
issues
as
impact
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mnitigatiomis (C00001, Sec.5, pp. 5-3 to
5-4), regulatory compliance (C00001, Sec. 5, pp. 5-4 to 5-5),
securityand access control (C00001,
Sec.
5, pp. 5-6 to 5-7), traffic flow and traffic control (C00001,
Sec.
5, pp.
5-7 to
5-9), contact water management system (C00001, Sec.
5,
pp.
5-9
to
5-10), stormn
water mnanagemnent (C00001,
Sec. 5, pp. 5-10 to 5-12), site personnel and equipmnent (C00001, Sec.
5,
pp. 5-13 to 5-5-17), dailyoperations (C00001,
Sec.
5,
pp. 5-17 to 5-22), and waste screeningand
exclusion (C00001,
Sec.
5,
pp. 5-22 to 5-24).
In his testimony for the Village, Mr. Nickodem
admnitted
he had
not proposed random load
inspections
for
unacceptable
waste
for Woodland.
(CO0217,
pp.
10-12).
He testified
random
inspections
are required for landfills
but he does not
propose theln for transfer stations.
Id.
He
agreed random inspections provide for more inspections for unacceptable waste but didn’t have an
opinion iframidoni inspections would be more protectiveofthepublic health, safetyand welfare.
Id.
In his report for the Village, Mr. Nickodem stated the untarpingofcollection vehicles is not
discussed in the application.
(C00463,
p.
5).
However, the record discloses there are repeated
references in the application to
the fact all untarping will be within the transfer building.
(C0000 1,
Executive Sumnmaly;
Sec. 2,
p.
2-7; Sec.
5, p.5-3, 5-6, 5-7, and 5-18).
This feature was further re-
iterated
in
Mr.
Gordon’s
testimnony.
(C00l79,
p.65).
This
operational feature
was deliberately
chosen over untarping on the apron so therisk potential for blowing litter would be eliminated.
Id.
In his report, Mr. Nickodem statedno provisions hadbeen made to provide for screening of
truck and equipment noise fi-om surroundingproperties.
(COO463, p.
5).
However, in his testimony,
Mr. Nickodem admitted the scale house and the concrete transfer building would-providescreening
for noise and visual impacts from both Bright Oaks and TheHollows.
(COO2 16, p.
7
and pp. 34-42).
Lowe’s concrete building provides niore noise abatement
than the steel building he designed for
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Woodland and the concrete building and the 1200-1400 foot distance between theFacility and Bright
Oaks provide
a noise
buffer
for
the residents of Bright
Oaks.
Id.
The record discloses
Lowe
provides multiple features forscreeningnoise including, but not limited to, having all unloading and
loading takeplace in an enclosedbuilding, orienting the open side ofthetransfer building away from
The Hollows
amid
Bright
Oaks,
constructing
the transfer building ofpre-cast concrete instead of
metal, the underground transfer trailer tunnel with automatic doors, an earthen landscaped berm on
the sideofthetransferbuilding facingBright Oaks, and six foot high retainingwalls along the ramps
into
amid
out
of the
tummel
alomig
the
sides
nearest
to
The Hollows
and
Bright
Oaks.
(C0000I,
Executive Summary,
Sec.
2 and Sec.
5).
Mr. Nickodem stated in his report that an
emergency actiomi plan was not included
in
the
application.
(C00463,
p.
6).
The record discloses such a plan is
contained
in
Attachment
I
to
Section
5
of the application.
While it is
entitled,
Fire and Accident Prevention Plan
(as per the
requirements of the
County’s
siting ordinance),
the
plan provides
all
the procedures
to
cover
emergencies at the Facility.
Additiomially,
Mr.
Nickodem’s
report
stated
no
fire
control
plan
was
included
in
the
application and no procedures for handling spills are found in the application.
Id.
Once
again, the
record discloses that these plans
are contained in
the
Fire and Accident Prevention Plan
included
as Attachment
1
to
Section
5 ofthe application.
The Facility’s
controls and procedures,
safety features, fire and accident prevention plans,
training ofits personnel, security system and provision of au
emergency access are all disclosed in
the record.
The record demonstrates Lowe’s comnpliance with
all required regulations.
The record
is devoid of any evidence the Lowe Facility is substandard or poses any safety hazard,
The record
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clearlydiscloses Nickodem presented no evidence and, in manycases, was contradicted by his own
testimnony.
The record plainly demonstrates that Criterion
5
has been met.
D.
County’s Misapplication of Previous Experience to Criteria 2
and
5.
Section
3 9.2(a) ofthe Act provides the following language:
The countyboard or the governing body ofthe municipality may also
consider
as
evidence the
previous
operating
experience
amid p~
recordofconvictions oradmissions ofviolationsofthe applicant(and
any
subsidiary
or
parent corporation)
in
the
field
of
solid
waste
management whenconsidering criteria (ii) and (v) under this Section.
Emnphasis
added
The CountyBoard adoptedResolution No. R-200305-12-104 denyingthe siting approval for
the Lowe
facility on May
6,
2003.
(CO7244: C07245-CO725O).
Paragraph 11(J)
stated:
Unnumbered
Criterion: The Board has considered as evidence the
previous
operating experience of
the
applicant and past record of
convictions
or
admissions
of
violations
of
the
applicant
when
considering Criteria (ii) and (v) of 415 ILCS
5/39.2(a).)
In his remarks to the County Board, Mr.
Helsten, attorney for the County, informed the Board that
“this
is
simply
a polling
that we will
do
to
determine whether
you
took
into
consideration
the
previous operating experience of the Applicant in the area of solid waste management and its prior
operating record...your comisideration would apply to criterion 2 and criterion 5.”
(CO7244,
p.47).
Mr. Lowe has never operated
a solid waste facility and he has never been convicted of or
even cited for any kind of local, state or federal violations.
(C0000I Sec.
10).
Another company
ownedby the principals in Lowe operates a asphalt and concreterecycling operation on the adj acent
property.
Id.
This operation has an airpennit from theJEPA.
While the Village spent
a great deal
oftime during the public
hearimig, questioning Mr.
Lowe about his current operations, the record is
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completely devoid of any evidence of “convictions or admissions ofviolations” by Mr.
Lowe or his
company.
Criterion 2 ofSection
3 9.2(a) does not mention either the skill ofthe operator or the history
ofviolations; indeed, the criterionfocuses on the facilityitself, withoutregard to the operator.
Watts
Trucking, Inc.
v.
City ofRocklsland,
PCB 83-167 (1984). Pastperformance, and the consideration
thereof, is discretionary by the County Board.
Citizensfor Controlled Landfills v.
Laidlaw
Waste
Systems,
Inc.,
PCB 91-89 andPCB 91-90 (consolidated) (1991).
In the past, even if
the record
contains evidence ofpast violations
that
is not sufficient
to support a denial on Criterion
2.
Waste
Hauling, Inc.
v. Macon
County Board,
PCB 91-223 (1992).
There is a legitimate interest in preventing persons witha prior history of violations
from
operating waste
facilities.
Martel v.
Mauzy,
511
F.
Supp.
729
(1983).
However, this
interest is
poorly served
when an
applicant,
like Lowe,
who has
miever been found by an
administrative or
judicial body to have violated any legal standards regarding waste
facilities is denied.
Id.
Section
39.2(a)
does
not
say
the
county
board
may
consider
an
applicant’s
“lack
of
experience”
whemi considering criteria (ii)
amid (v) which
seemns to be the County’s position.
Under
the County’s interpretation ofthis section, the only applicants who could apply for siting approval
would be those persons and businesses in existence at thetime theAct was amended to included this
provision.
There is
nothing in the Act or in the discussions of the General Assembly that would
provide thebasis for such a narrow and restrictive intel-pretation.
In fact, the Supreme Court in
City
of Elgin
v.
County of Cook,
169
Ill.
2d
53(1995), stated, “Given the pressing need for pollution
control facilities, the Act encourages the development of environmentally sound facilities through
the establishment of a uniform, statewide environmental policy dealing with such facilities”.
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The County’s denial ofLowe’s application in regards to Criteria 2 and
5 based on “previous
operating experience’? and “prior operating record” cannot be supported by the record.
Despite the
voluminousnature ofthe
recordin thissiting application,therecord is totallydevoidofanyevidence
ofcomplaints, violations or enforcement actions against Mr. Lowe.
The County Board
has denied
Lowe’s application when Mr. Lowe has never been found by any administrative orjudicial body to
have violated any legal standards regarding waste facilities as reflected in the record.
The County
Board’s decision on Criteria 2 and
5
should be reversed.
E.
The County Board’s Imposition ofA Host Fee
as
a
Special
Condition Was Unauthorized and Unlawful.
McHenry County is a non-home-rule county.
The County Board adopted Resolution No. R-
200305-12-104 denying
the siting
approval for the Lowe facility on May 6, 2003.
(CO7245;
C07244).
Paragraph 11(H) contained a Special Condition No.1 which stated:
The Applicant
shall pay
the host
fee in the amount
of $1.90 per ton, that amount
being found from the record as a whole to fairly compensate the County for potential
impacts
caused by the transfer station
and
to
meet those
goals
and
requirements
imposed
upon
the
proposed
facility by the
McHenry
County
Solid Waste
Management Plan.
Said host
fee shall be increased in January
1
of each calendar
year for which the facility is
open by
the amnount ofthe increase
in the Consumer
Price II Index for the Great Lakes Region for the prior calendar year.
The County
Board vote
on Special
ConditionNo. Iwas 21-0. (C07244, pp. 42-44; CO7248). There
was no discussion by the County Board on Special Condition No.1.
Id.
The County’s Solid Waste Management Plan contains no provision for a host fee. (C00002,
App. H).
Therecord is devoid ofany discussion by either the Siting Commnittee or the County Board
where a detem-mination wasmade ofthe“cost ofthepotential impacts caused by thetransfer station”.
(C0O177-228; C07237;
CO7244).
Even ifthe -figure of$1 .90 per ton had been demonstrated by the
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Coumity Board to somehow be related to the Lowe application, theCounty Board, as a non-homne-rule
county, was without the necessary legal authority to ilnpose such a fee.
A non-home-rule unit’s
sole power to regulate a new pollution control facility is found in
Section 39.2. which allows local authorities to approve site location suitability in accordance with
the criteria there stated.
ConcernedBoone Citizens, Inc.
v. MI. C. Investments, Inc.,
144 Ill.App. 3d
334
(2~~d,
Dist.
1986).
Section
39.2
does not grant the power to assess fees against an applicant.
County ofLake
v.
Pollution
Control Board,
120 Ill.
App.
3d
89
(2h1d
Dist. 1983).
Moreover,
the
imnposition of a fee is not areasonable andnecessamycondition in order to accomplish thepurposes
of Section
39.2.
Id.
To extend Section 39.2 to
allow the imnposition of a
fee would go beyomid the
confines of the statute.
E & E Hauling, Inc.
v. Forest Preserve District ofDuPage
County,
629
F.
Supp.
973
(1986), citing
County ofLake
v. Pollution C’ontrolBoard,
120 Ill. App. 3d
89
(2h1d
Dist.
1983).
Section 39.2 does not grant the authority to require financial responsibility.
Id.
Financial
responsibility is not part ofthe criteria to be considered in granting approval.
Id.
TheCounty
Board hadno statutory authorityto impose Special ConditionNo 1
on Lowe and,
as
such, the Coumity
Board’s decisiomi should be reversed and Special Condition
No.1
should
be
stricken.
Conclusion
The courts acknowledge the normal deference given to a local body’s decision, as long as
it is not
against the manifest weight of the evidence.
Industrial Fuels
& Resources/Illinois,
Inc.
v.
Pollution Control Board,
227 Ill. App.
3d 533
(1St
Dist.
1992).
But as the court stated in
Industrial,
“Nevertheless, when an applicant provides the requisite information and evidence on
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all ofthe statutory criteria(which appear to be fairlyrigorous), the Board should
not abdicate its
statutory role in the
siting approval process.”
Id.
at 550.
For the reasons set forth in this memorandum, the applicants respectfully request that the
Pollution Control Board reverse the decision of the McHenmy County Board denying Lowe’s
application with regard to Criteria 2,
3
and
5
and strike
special condition No.
1
of Criterion
8..
Respectfully submitted,
LOWE TRANSFER, INC.
and
MARSHALL LOWE
By: Zukowski, Rogers, Flood
&
McArdle
By:______
DavidW. McArdle
DavidW. McArdle, AttorneyNo: 06182127
ZUKOWSKI,
ROGERS,FLOOD &MCARDLE
Attorney for Lowe Transfer, mc, and Marshall Lowe
50
Virgimiia Street
Crystal Lake, Illinois
60014
815/459-2050; 815/459-9057 (fax)
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