ILLINOIS POLLUTION CONTROL BOARD

LOWE TRANSFER,

INC. and MARSHALL

)

LOWE,

)

RECEIVED

Petitioners,

)

~.EP~’S

~

•~u~

2

2

Z003

vs.

)

Case No.

PCB 03-221

)

STATE OF ILLINOIS

COUNTY BOARD

OF MCHENRY COUNTY,)

poUutfofl Control Board

ILLINOIS

)

)

Respondent.

)

NOTICE

OF FILING

TO:

See Attached

PLEASE

TAKE NOTICE that

on

August

~—~-

,

2003,

we mailed for filing

with

the

Illinois Pollution Control Board,

the attached Respondent County

Board of

McHenry County,

Illinois’

Brief in Support of its

Decision to Deny Siting Approval to

Lowe Transfer, Inc., a

copy ofwhich is attached hereto.

Dated: __________________________,2003

Respectfully Submitted,

On behalfofthe County Board ofMcHenry

County, Illinois

By: Hinshaw & Culbertson

One ofits Attorneys

HINSHAW & CULBERTSON

100 Park Avenue

P.O.

Box

1389

Rockford, Illinois

61105-1389

815/490-4900

70374166v1

830017

---

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions ofSection

1-109

of

the Illinois

Code

ofCivil

Procedure, hereby

under

penalty

of perjury under

the

laws of the United

States

of America,

certifies

that

on

£~zi~.c~.

~

,

2003,

a

copy

of the

Respondent

County

Board

of

McHenry

County, Il1ii~bis’Briefin

Support ofits Decision to Deny Siting Approval to Lowe

Transfer, Inc.,

served upon:

Via U.S.

Mail and e-mail:

David McArdle

Zukowski, Rogers, Flood

& McArdle

50 Virginia Street

Crystal Lake, IL

60014

Via Hand Delivery:

Dorothy M. Gunn

Bradley Halloran

Illinois Pollution Control Board

James

R. Thompson Center

100 W. Randolph St.,

Ste.

11-500

Chicago, IL

60601

By

depositing

a

copy

thereof,

enclosed

in

an

envelope

in

the

United States Mail

at

Chicago,

Illinois, proper postage prepaid, before the hour of 5:00 P.M., addressed as above.

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box

1369

Rockford,IL

61101

(815) 490-4900

70374162v1

830017

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LOWE TRANSFER, INC. and MARSHALL

)

LOWE,

)

C~C~IV~&)

Petitioners,

)

i-lUG

)

22003

vs.

)

Case No.

PCB 03-221

ST/~TEOF IL

)

Pollution Control Facility

S~IØJ~t,~I)’1O~S

COUNTY BOARD

OF MCHENRY COUNTY,)

ILLiNOIS

)

)

Respondent.

)

RESPONDENT COUNTY BOARD

OF MCHENRY COUNTY, ILLINOIS’

BRIEF

IN SUPPORT OF ITS DECISION TO DENY SITING APPROVAL

TO LOWE TRANSFER, INC.

For

the

reasons

set

forth

herein,

Respondent,

County

Board

of

McHenry

County

(“McHenry

County

Board”),

respectfully

requests

that

this

Board

affirm

its

decision

to

deny

siting approval to

Lowe Transfer, Inc. and Marshall Lowe, the Co-Petitioners herein.

I.

INTRODUCTION

On

November

20,

2002,

Marshall

Lowe

and

Lowe

Transfer,

Inc.

submitted

its

Application

for

Site Location

Approval

for a

proposed

Northwest Highway

Transfer Facility

(“Facility”).

The

Facility

would

be

located

on

U.S.

Route

14

in

unincorporated

McHenry

County.

Pursuant to the Illinois Environmental Protection

Act,

public hearings were conducted

before a hearing officer and the McHenry County Pollution

Control Facility

Siting

Committee.

See

415 ILCS

5/39.2(d).

These hearings were held from March

1

to March 15, 2003.

(C.00178-

C.00227).

Registered

Objectors to

the

Application

included

the

Village

of

Cary,

the

Plote

Family,

the

Bright

Oaks

Homeowners’

Association,

the

Cary

Park District,

the

Trout Valley

Homeowners’ Association and the McHenry County Defenders, as well as many private citizens.

(C.00178, pp.

9-12;C.00043-53).

70372381v1

830017

---

The McHenry County Pollution Control Facility Siting Committee met on April 28, 2003

and

reviewed

the

Application

and

the

evidence

presented

during

the

siting

hearings

and

recommended to the full County

Board to

deny the Application because the Applicant failed to

satisfy

criteria

(ii),

(iii)

and

(v).

(C.07237).

On May 6,

2003,

the

McHenry

County

Board

unanimously

denied the Application for local

siting

approval (C.07244) and

issued

Resolution

No.

R-200305-12-104, Concerning the Lowe

Transfer, Inc.

Application For a Pollution Control

Facility.

(Exhibit A attached to

Lowe’s Petition for Hearing).

The Resolution set forth that the

Applicant failed to

satisfy criteria (ii),

(iii)

and (v), and

imposed special conditions with respect

to

criterion

(vi)

and

criterion

(viii).

Id.

The

special

condition

of criterion

(viii)

required the

Applicant

to

pay

a

host

fee.

Id.

The

Resolution

also

sets

forth

that

the

Board

members

unanimously

“considered

as

evidence the

previous

operating

experience of the Applicant

and

past

record

of

convictions

or

admissions

of

violations

of the

application

when

considering

criteria (ii) and (v) of415 ILCS

5/39.2(a).”

Id.

On June 6,

2003,

Lowe Transfer, Inc.

and Marshall Lowe

filed a Petition for Hearing to

Contest

Site Location Denial alleging that:

(1) the McHenry County Board’s decision was against

the manifest weight ofthe evidence with respect to criteria (ii), (iii) and (v); (2) the imposition of

a “host fee”

as a special condition approving Criterion (viii) was unauthorized and unlawful; (3)

the

McHenry

County

Board

applied

the

unnumbered

criterion in

Section

39.2

of the Illinois

Environmental Protection Act unlawfully;

(4) the McHenry

County Board

failed

to

specify the

reasons for its decision; and (5) the McHenry County Board violated its own ordinance by failing

to

specify

the

reasons for

its

decision.

(Co-Petitioner’s

Petition

for Hearing to

Contest

Site

Location Denial, ¶4).

For the reasons set forth below, the McHenry County Board’s decision to

2

70372381v1

830017

---

deny

siting

approval

to

the Applicant

was

lawful

and

not

against the manifest

weight of the

evidence.

Consequently, the decision oftheMcHenry County Board should be upheld.

II.

ARGUMENT

A.

The County Board’s denial of siting approval should be upheld because it was not

against the manifest weight ofthe evidence.

In order to

grant siting approval to

a pollution control facility,

such as a transfer station,

the

County

Board

or local

governing body must

find that the Applicant has satisfied

all of the

criteria

set forth

in

section

3 9.2(a)

of the

Illinois

Environmental

PrOtection Act

(“Act”),

415

ILCS

5/39.2(a).

Waste

Management of illinois,

Inc.

v.

illinois

Pollution

Control Board,

160

Ill.App.3d 434,

443,

513

N.E.2d 592,

597

(2d Dist.

1987).

If any one

of the criteria listed in

section 39.2(a)

is

not met,

the Application must be

denied.

See Id.

In this

case, the

McHenry

County Board found that three criteria set forth in section 39.2(a) were not met.

Specifically, the

Board

found

that

the

Applicant

failed

to

show

compliance

with

criteria

(ii),

(iii)

and

(v).

(C.007244,

pp.

3-57).

Because the

Application did

not

satisfy

all

of the

statutory

criteria,

the

McHenry County Board was required to deny siting approval.

The McHenry County Board’s denial of Lowe Transfer, Inc.’s Application must be upheld

because the

County’s decision that the Applicant

failed to

comply with criteria (ii),

(iii)

and (v)

was

clearly not

against the

manifest

weight of the

evidence.

It

is

well-settled that

a

county

board’s decision to

grant or deny siting approval can

only be reversed if the decision is

contrary

to

the manifest

weight of the

evidence.

Waste

Management,

160

Ill.App.3d

at

441-42,

513

N.E.2d at

597.

The manifest weight ofthe evidence standard is to

be applied to each and

every

criterion

on

review.

Id.

The

manifest

weight of the

evidence standard

is

consistent

with the

legislative intent to grant local authorities the power to determine the site location suitability of a

proposed new regional pollution control facility.

160 Ill.App.3d at 441,

513

N.B.2d at

596.

It is

3

70372381v1

830017

---

the

sole

province of the hearing body to

weigh the evidence, resolve conflicts

in testimony and

assess

the credibility of the witnesses.

Tate

v.

illinois Pollution

Control Board,

188

Ill.App.3d

994,

1022, 544N.E.2d1176,

1195 (4thDist.

1989).

In determining whether a decision is

againstthe manifest weight ofthe evidence, it is not

sufficient

that

a

different

conclusion

may

be

reasonable.

Wabash

and

Lawrence

Counties

Taxpayers and Water Drinkers Association

v.

Pollution Control Board,

198 Ill.App.3d 388, 392,

555

N.E.2d

1081,

1085

(5th

Dist.

1990).

A

decision

is

against

the

manifest

weight

of the

evidence

~y

if the

opposite

conclusion

is

clearly evident,

plain

or indisputable.

Worthen

v.

Roxana,

253

Ill.App.3d

378,

384,

623

N.E.2d

1058,

1062

(5th

Dist.

1993). When reviewing a

decision under a manifest

weight ofthe evidence standard, the reviewing court may not reweigh

evidence and may not reassess the credibility of witnesses.

Id.;

Wabash,

198

Ill.App.3 d

at 392,

555 N.E.2d at 1085.

It

is

clear

that

the McHenry

County

Board’s

decision to

deny

siting approval

to

Lowe

Transfer, Inc.

is not against the manifest weight of the evidence as the evidence presented at the

13-day

siting hearing shows that the Applicant failed to satisfy criteria (ii),

(iii) and (v) ofsection

39.2 of the Act, as explained more fully below.

B.

MORE THAN

AMPLE EVIDENCE EXISTS TO

SUPPORT THE MCHENRY

COUNTY BOARD’S DECISION THAT THE FACILITY IS NOT DESIGNED,

LOCATED

AND

PROPOSED

TO

BE

OPERATED

TO

PROTECT

THE

PUBLIC HEALTH, SAFETY AND WELFARE.

Section

3 9.2(a)(ii)

of the

Act,

otherwise

referred

to

as

Criterion

(ii),

requires

the

Applicant to

establish that

“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).

Through section

39.2(a)(ii),

“the

legislature has charged the county board, rather than the PCB, with resolving

technical

issues,

such as public

health

ramifications of the

landfill’s

design.”

McLean

County

4

70372381v1

830017

---

Disposal,

Inc.

v.

County of McLean,

207

Ill.App.3d

477,

480,

566

N.E.2d 26,

28

(4th

Dist.

1991).

This

broad

delegation of authority

reflects

the

legislative

intent

that

the local

board

hearing, which provides

the only opportunity for public comment on the site, be the most critical

stage ofthe process.

See

id.

1.

The

McHenry

County

Board

properly

weighed

the

evidence

and

considered the credibility of the witnesses in determining that criterion (ii)

was not met.

Courts have acknowledged that whether a facility is so designed, located, and proposed to

be

operated

that

the public

health,

safety

and

welfare

will be

protected

is

“purely a

matter

of

assessing the credibility ofthe expert witnesses.”

File

v.

D&L Landfill,

219 I11.App.3d 897,

907,

579

N.E.2d 1228,

1236

(5th Dist.

1991);

Fairview Area Citizens Taskforce

v.

Illinois Pollution

Control Board,

198

Ill.App.3d

541,

552,

555

N.E.2d

1178,

1185

(3d Dist.

1990).

In this

case,

several

expert

witnesses

testified

regarding

criterion

(ii)

at

the

landfill

siting

hearing.

The

Applicant’s

witnesses

were

Dan

Zinnen,

an

agricultural

engineer,

I.

Keith

Gordon,

a

civil

engineer and Douglas Dorgan, a hydrogeologist.

The objectors, specifically the Village ofCary,

presented

Lawrence

Thomas,

a

professional

engineer

and

hydrogeologist,

Mr.

Andrew

Nickodem, a civil

engineer,

and Kevin

Sutherland, an environmental engineer

on the subject of

criterion

(ii).

The testimony of these witnesses was clearly conflicting, as Zinnen and

Gordon

both

specifically

testified that

the

facility

satisfied

criterion (ii)

because

it

was

so

designed,

located, ahd proposed to be operated that the public

health,

safety and welfare will be protected

(C.00l79,

pp.

14,

42;

C.00183,

pp.

47-48,

67-68), while Mr.

Thomas, Mr. Nickodem and

Mr.

Sutherland

specifically found that the facility was not

so designed, located and proposed to be

operated

to protect the public

health,

safety

and welfare.

(C.00188,

pp.

50-51,

C.00189,

p.

61;

C.00215, p. 54:C.00218, p. 79).

5

70372381v1

830017

---

As

explained

by

the

Court

in

Concerned Adjoining

Owners,

“it

was

up

to

the

local

governing body to

determine the credibility of witnesses, resolve conflicts in the

evidence and

weigh all

of the

evidence offered.”

288

Ill.App.3d

at

576,

680

N.E.2d at

818.

The Illinois

Pollution

Control

Board

cannot

reweigh

expert

testimony

to

decide

which

expert

is

more

qualified

and

more

believable.

McLean

County,

207

Ill.App.3d

at

487,

566

N.E.2d

at

33.

Clearly, the McHenry County Board found the objectors’ witnesses to be credible and persuasive,

and

it

is

not

the

Pollution

Control

Board’s

role

to

reassess

their

credibility

or

reweigh

the

evidence presented by the experts.

See File,

219

Ill.App.

at 907,

579 N.E.2d at

1236.

In this

case,

it was

appropriate

for the

McHenry

County

Board

to

not

accept

the testimony

of the

Applicant’s witnesses as Gordon, Zinnen and

Dorgan all

readily

admitted

that

they have never

testified against or opposed the siting ofa transfer station.

(C. 00183, p.

56; C.0224,

p. 99).

Several Courts

have specifically

found that where

there is

conflicting testimony,

a local

governing

body’s decision is

not

against the manifest weight of the

evidence if the decision

is

consistent

with

an

expert’s

testimony.

See

City of Rockford

v.

County

of

Winnebago,

186

Ill.App.3d

303,

315,

542 N.E.2d 423,

432

(2d Dist.

1989) (explaining that the court would

not

determine

which

witnesses

were

more

expert

or

decide

controverted

facts);

Fairview,

198

Ill.App.3d

at 552-53,

555

N.E.2d at

1185 (“Since there

is evidence to support the village board’s

decision,

and

.

.

.

it is

not the function of the reviewing court to

reweigh evidence or reassess

credibility, the finding ofthe village board on this criterion is not against the manifest weight of

the

evidence.”);

Wabash,

198

I1l.App.3d at

393,

555

N.E.2d

at

1086

(explaining that

simply

because one expert provided evidence which,

if accepted,

would

support

a contrary conclusion

does

not

mean

that

the

County

Board’s

conclusion

is

against

the

manifest

weight

of the

evidence);

McLean

County Disposal,

Inc.

v.

County of McLean,

207

Ill.App.3d

477,

487,

566

6

70372381v1

830017

---

N.E.2d 26,

33

(4th Dist.

1991) (explaining that because the expert testimony conflicted, the court

would not reweigh the evidence and found that the

agency’s determination was not

contrary to

the manifest weight of the evidence).

Here, the McHenry County Board’s decision was not

only

consistent

with

the

testimony

of one

expert,

but

was

consistent

with

the testimony

of three

experts, Thomas, Nickodem and

Sutherland, who all

found that the transfer station

proposal did

not

satisfy

criterion

(ii).

Because that

decision was based

on

testimony

directly from

experts

with considerable experience in the area of siting

and permitting pollution control facilities, that

decision cannot be against the manifest weight ofthe evidence.

2.

The

McHenry

County

Board

correctly

found

that

the

facility

did

not

satisfy

criterion (ii) because the location of the facility will endanger the

public health, safety and welfare.

The

evidence

presented

at

the

siting

hearing

amply

supports

the

County

Board’s

conclusion that the Applicant failed to

satisfied Criterion

(ii).

As

was made clear

in the siting

hearings, the

proposed site

for the transfer station

is

so located

so not

to

be

protective of the

public health,

safety and welfare.

The evidence clearly showed that the public

health,

safety and welfare will be

adversely

affected by the location ofthe site.

As was admitted by Dan Zinnen, the Applicant’s own witness

on criterion (ii), the site of the transfer station consists only 2.6 acres of land and is located only

20

feet away from

The Hollows, an area owned by

the McHenry County Conservation District,

which contains sensitive wetlands and natural

areas. (C.00 178, pp.

112).

The site is

also

located

in close proximity to

a lake, namely Lake Plote (C.00178, pp.

112,

116-117), and approximately

1300

feet

from

a

residential

subdivision,

Bright

Oaks.

(C.00182,

p.

28).

While

Mr.

Zinnen

placed much emphasis on the fact that the site is zoned industrial

and located in an industrial area

(C.00l78,

pp.

136,

137-38), the fact of the

matter is

that

the site

is

actually located next to

a

highly sensitive natural area, The Hollows, (C.00 178, p.

112) and is located

less than halfa mile

7

70372381v1

830017

---

from property that was zoned residential at the time ofthe hearing.

(C.00 182, p. 28).

Only days

after the close ofthe hearing, property immediately adjacent to

the site ofthe facility, the Plote

property, was also

zoned residential.

(C.04 132-04174, C07 175-7182).

Mr. Andrew Nickodem, a

civil

engineer,

who has personally designed transfer stations

and has been involved with solid waste facilities for more than

15 years

(C.00214, p.

5),

testified

that the facility did not meet criterion (ii) because it was located too close to The Hollows, Bright

Oaks and the Plote Property.

(C.00215, pp.

54-55;

C.00216, p.

4).

Mr. Nickodem testified that

in

his

15

years of experience and

involvement

with

50

transfer

stations, he has never seen

a

facility located next to two

sensitive areas, such as The Hollows and Bright

Oaks.

(C.00214, pp.

17-18).

Mr. Nickodem stated that he had

such a problem with the location ofthe facility that if

he

were

presented

with

that

location by

a

client wanting

to build a

transfer

station

there,

he

would refuse to build.

(C.002 15, p.

95).

Mr. Nickodem explained that the poor location of the

site was magnified by the fact that there was not an adequate buffer between the facility and The

Hollows.

(C.00215,

p.

29).

Mr. Nickodem suggested a

screening wall (such as those that exist

along highways) to

act

as a buffer

between the facility

and

The Hollows to

try

to protect The

Hollows from

noise, odor and

the sight of the facility.

(C.00214,

pp.

25-26,

C.00215,

p.

29).

However, no

such screening wall was included in the design of the facility, clearly showing the

Applicant’s lack of detail in minimizing the effect that the facility would have on its neighbors.

Mr. Nickodem stated that his major concern was that the transfer station could adversely

affect wetland areas in The Hollows

(C.00214,

pp.

19-20).

Those wetlands are very

important

because, according

to

the Illinois

Department ofNatural Resources,

they

are “irreplaceable and

unmitigatable

based

on the fact that the complex

biological

systems

and

functions that

this

site

supports

cannot

be

successfully

recreated

within

a

reasonable

time

frame

using

existing

8

70372381v1 830017

---

restoration or creation methods.”

(C.00181, pp.

31-32).

Based on the testimony provided at the

hearing,

it

is

clear

that

The

Hollows,

and

the

wetlands

contained

therein,

may,

and

almost

certainly will, be

affected by the transfer station

because the testimony of the Applicant’s own

witnesses establishes that household hazardous waste may seep

into The Hollows.

Mr. Gordon

stated that it is possible,

and even likely, that household hazardous waste will come through the

transfer

station.

(C.00l80,

pp.313-35).

In turn,

Mr.

Zinnen acknowledged that

such household

hazardous waste

could run out onto the queuing

area, which is

made of asphalt, has no liner or

membrane beneath it, and has no curb separating it from The Hollows.

(C.00184, pp.

27-30).

Because of the

close

proximity

of The

Hollows

to

the

site

and

the

lack of adequate

protection between the two

locations, the delicate ecological environment ofThe Hollows could

be

impacted

by

contaminants,

which

would

clearly

be

inconsistent

with

the requirement

of

section 3 9.2(a)(ii) that the facility be designed and locatedto protect the public health, safety and

welfare.

This fact was aptly noted by Mr.

Kiasen, a member ofthe McHenry County Regional

Pollution

Control

Facility

Committee,

who

specifically

stated

that

he

did

not

believe

the

Application satisfied criterion (ii) because it is located next to The Hollows, which is

“a sensitive

natural resource that should be preserved.”

(C.07237, p.

15).

According to Mr. Klasen, it would

be

inappropriate

to

have

a

transfer

station

“adjoining

and

abutting

a

sensitive

area like

The

Hollows.”

Id.

In addition to the

site’s close proximity to The Hollows and the Bright Oaks Subdivision,

the

site

is

also

located

immediately

adjacent

to

the

Plote

Property,

which

has

been

zoned

residential.

(C.04132-04l74,

C07175-7182).

While the Plote Property was not

officially zoned

residential

until

after

the

siting

hearing

concluded,

it

was

well

known

that

the

Plotes

were

seeking the residential zoning,

and

had been in the process ofdoing

so for some time.

In fact,

9

70372381v1

830017

---

Mr.

Lowe himself was

aware that

the Plotes were seeking to have the area directly next to this

site

zoned residential and because of that fact, Mr.

Lowe filed his Application

on

an

expedited

basis

so that the Application would be

filed and the

siting hearing would

take place

before the

Plotes received residential zoning approval.

(C.00202, p. 20).

Because it was clear that the land

immediately

and directly adjacent to the transfer facility would

imminently become

residential,

ample evidence exists

in the record to

demonstrate that this facility

is not located to protect the

public health,

safety and welfare.

Another major problem with the location of the facility, which

will adversely affect the

public health

safety and welfare,

is

the

size of the

site.

(C.00215,

pp.

54-55).

Mr. Nickodem

testified that the site

is

simply too

small

for a transfer station, and

is smaller than any other site

he has seen recently developed.

(C.00214, pp.27-28).

In fact, based on an exhibit introduced by

the Applicant himself, no transfer station ofsuch a small size had beenbuilt in Illinois in the past

twelve years.

(C.00215,

pp.

105-106:

Applicant’s Exhibit 23).

In determining whether the site

would be adequate in

size, Mr. Nickodem had an associate run a program called “Auto Turn” to

simulate trucks

on the

site.

(C.00214,

pp.

29).

That program revealed that trucks would not

be

able to

adequately turn

and maneuver around the site.

(C.00214, pp.

29-35).

As a result of the

inadequate

size of the facility,

Mr. Nickodem testified that there would

be

good

possibility of

accidents

as well as traffic

back-ups on Route

14.

(C.002l4, pp.

29,

33-34, 48-50,

51

and

55).

While

Mr.

Gordon

testified that

he

believed

that

the site

was an

adequate

size based

on

his

calculations,

Mr.

Gordon’s

calculations

were

flawed because he

admitted

that

his

calculations

were based

on trucks that were

smaller than those that could use this facility.

(C.00223, pp.

12-

16).

Mr.

Gordon

based

his

calculations

on

trucks

with

wheelbases

of

52

and

54

inches and

trailers

with lengths of 53

to

55

feet, even though transfer trailers can have wheelbases of up to

10

70372381v1 830017

---

64

inches and

lengths of up to

65

feet. (C.00223,

p.

7,

11,

12-20, 24).

In fact, Mr. Nickodem

testified that

the vast

majority of trucks

in

transfer stations

are

WB

62

(C.00223,

pp.

32-33).

Because

Mr.

Gordon failed to

properly

calculate whether the

site was in fact large enough

to

safely handle vehicles of this

size, the

McHenry County

Board was clearly justified in

finding

that the site was inadequate and not consistent with criterion (ii) because

a site that

is too

small

(and,

therefore,

causes

safety

concerns

for truck drivers

as well

as the public)

is

clearly not

located so as to

protect public health, safety and welfare.

The

location of this

site

is

also

not

protective of the public

health,

safety

and

welfare

because it

is

possible

that

underground

storage

tanks

of older, unknown vintage may

still

be

located beneath

it.

The Applicant’s own experts

could not

conclusively state that underground

storage

tanks

that

were

once present beneath

the site had

been removed.

While

Mr.

Zinnen

stated

that

he

believed

the

underground

storage

tanks

have

been

removed,

he

has

seen

no

documentation evidencing

that.

(C.00223,

p.

51).

That belief was based

purely upon hearsay

statements.

(C.00223,

p.

59).

Furthermore,

Mr.

Gordon

specifically

testified that

he

did

not

know if underground

storage tanks are still located on site.

(C.00185, pp.

85-86).

It is no wonder that serious doubts

and questions exist as to whether this

site, as located,

would pose threats to

the public,

health,

safety

and

welfare, as this

site was earmarked by Mr.

Lowe

(someone with

no

experience

with

transfer stations)

for the

sole

purpose of building

a

transfer

station

without any

feasibility

studying

having

been

undertaken

to

determine

if

the

location was appropriate for development and operation of a transfer station.

(C.00202, p.

16).

Based on the problems identified above, it is clear that the location ofthis facility will not protect

the public, health,

safety and welfare and, therefore, the McHenry County Board properly found

that criterion (ii) was not met.

11

70372381v1 830017

---

3.

The McHenry County Board correctly found that the design ofthe facility

would not protect the public health, safety

and welfare because the facility

is not designed to prevent contamination of groundwater.

In

addition

to

the

hazardous

waste

that

may

seep

into

The

Hollows,

the

testimony

presented at the hearing establishes that there

is

inadequate protection of the ground water that

will

flow

from

the

facility.

According

to

Mr.

Zinnen,

the

uppermost

ground

water

is

hydrologically

connected to

the surface run-off to Lake Plote, Lake Atwood and the wetlands,

located in the

Hollows.

(C.001 86,

p.

87).

In fact, Mr.

Zinnen admitted that

the groundwater

flows at a rapid rate directly toward the wetlands.

(C.00181, pp. 25).

As such any contamination

that would find its way to groundwater at the transfer station will flow to nearby lakes as well as

The Hollows.

Mr.

Lawrence

Thomas,

a

professional

engineer,

who

has

worked

in

the

area

of

hydrogeology

since

1980,

also testified that the groundwater

below the proposed sites travels

to

Lake Plote, Lake Atwood and into The Hollows

(C.00188, pp.

6-7, 25-26; C.00190, pp.

44-45).

He also testified that

some

water will

also

eventually flow into Lake Killarney.

(C.00 188,

pp.

27-28).

Mr. Thomas testified that

“there is a substantial risk.

.

for groundwater contamination.”

(C.00188, p.

33).

He explained that was true because even very small amounts of contamination,

such

as could

come

from

household

hazardous waste,

can

contaminate very

large amounts

of

groundwater.

(C.0188,

pp.

35-36).

Mr.

Thomas explained that contaminants would be able to

move through the subsurface because it is

comprised of sand and gravel; the contaminants could

also

move

through

pathways

along the

septic

system,

injection

chambers

and

gas

any

utility

pipes on the property.

(C.00190, pp. 41-42).

While

a

groundwater

monitoring program was proposed for

the property,

the evidence

presented

at

the

siting hearing

established

that

the

groundwater

monitoring

system

may

be

inadequate to protect the public health,

safety and welfare.

Mr. Zinnentestified that there will be

12

70372381v1 830017

---

only two monitoring wells on the

site, which will both be

located down-gradient.

(C.00l81, p.

35).

Both Mr. Zinnen and Mr. Dorgan, the

Applicant’s own witnesses, admitted that it is typical

to have up-gradient wells to compare with the down-gradientwells to

determine if contamination

is

emanating

from the

site.

(C.00l81,

pp.

35-36;

C.00199,

p.

84-85).

In

fact,

Mr.

Zinnen

specifically admitted that without those up-gradient wells,

it would be impossible to determine if

the

transfer station

was

causing groundwater

problems.

(C.00 181,

p.

35).

Mr.

Thomas

also

testified that the number

and

location of the wells was inadequate

because there were

no

up-

gradient

wells,

and

the

wells

were not

nested

to test

different

layers

of the

stratigraphy

to

determine if contamination was present at particular layers.

(C.0l88,

p.

48-49).

Mr. Thomas

also

saw an inconsistency with the landscaping and

the plan to

monitor the wells because based

on

the landscaping plan proposed for

the facility, he

did

not

believe there

would

be

room

to

actually monitor and maintain the wells.

(C.00 188, pp.

4 1-42).

The

groundwater

monitoring

system

is

also

inadequate because, as

was

conceded

by

Mr.

Zinnen,

there will be

nothing to

monitor

for

components

that

are

denser

than

water.

(C.00181,

pp,.

38-39).

Mr.

Thomas

explained that

was problematic

because the compounds that are heavier than water can include

contaminants,

and

the

system

as

designed

would

tend

to

allow

those

compounds

to

move

downward into

the

groundwater.

(C.00188,

p.

36).

Furthermore,

the

proposed

groundwater

monitoring

scheme

is

inadequate

because

no

plan

was

established

to

test

for

certain

target

contaminants.

(C.00 188, pp.

40-41, pp. 48-49).

According to

Mr. Zinnen, the Applicant has not

yet

specified,

or even determined,

how often

samples will

be

taken from

the wells

and

what

contaminants will be tested for.

(C.00181, pp.

40-41).

That is significant because according

to

Mr. Thomas, the site should

be testing for

all contaminants that will

affect

drinking water,

and

there is

no

indication

that

the

Applicant

will

do

so.

(C.00l88,

p.

40).

Because of the

many

13

70372381v1 830017

---

deficiencies and ambiguities

in the ground water monitoring

system proposed, it clearly will not

be successful in determining if contamination is, in fact, being caused by the transfer station, and

the facility is not, therefore, properly designed to protect the health, safety and welfare.

The proposed

transfer

station

is

also

inconsistent

with

criterion

(ii)

because it

is

not

designed

to

adequately protect

against storm

water contamination, which

can, in

turn,

lead to

ground

water

contamination.

Mr.

Sutherland,

an

environmental

engineer,

testified

that

the

design ofthe storm water system does not adequately keep potential contamination out ofcontact

with

groundwater in

the

area.

(C.002l8,

p.

85).

Again,

as

conceded

by

the Applicant’s own

expert, there is no

containment or curbing around the paved areas ofthe site, other than the ramp

areas, to

prevent spills

in those

areas from

entering the

storm water system.

(C.00181, p.

84).

This is particularly

problematic because if there

is contamination in the

storm water infiltration

chamber,

it

will

be

then introduced

into

the

groundwater,

and

will

in turn flow through

the

groundwater

at a

rather rapid rate.

(C. 00181,

p.

83).

Mr.

Thomas

explained

that

the water

quality

catch

basins

that

are meant

to

remove materials

in

the water

are not

totally effective,

therefore

allowing

some

constituents

to

find their way

to

the

groundwater,

thereby

causing

contamination.

(C.00 188, pp. 42-43).

The infiltration system which is part ofthe storm water system may also not be effective

in protecting the health,

safety

and

welfare of the public because there is

no

ability to

stop the

materials in the system from migrating into the sewer system if contamination is in fact detected.

(C.00 188,

p.

43).

Accordingly, contaminants introduced

into the ground water at the sand and

gravel layer could eventually find their way into the public water supply wells.

(C.00 188,

p.

44,

C.0l90, p.

59).

As noted by Mr. Thomas, the infiltration chamber is not designed to protect the

public

health, safety

and welfare because once any

contaminants are in the chamber, there is no

14

70372381v1 830017

---

‘way to

prevent them from moving downward.

(C.00 188,

p. 37-38).

Another problem that exists

in the storm water design is that no procedures had been established regarding when and how the

infiltration

chamber

or

catch

basins

will be

cleaned,

even

though

such a

plan

is

typically

a

component of such a

system.

(C.0018l, pp.

83-84;C.00218, p.

79).

Mr.

Sutherland explained

that it is

necessary to be able to readily access to the catch basins so that they can be maintained

and to ensure they do not become clogged with debris. (C.00218, pp.

83-84).

Moreover,

the

storm

water

system

created

by

the

Applicant

does

not

appear

to

be

protective of the

public

health,

safety

and

welfare because under

the

system

design presently

proposed, liquids from the ramp and apron of the facility will be treated as storm water instead of

contact water.

Mr. Nickodem testified that water from the ramps

is routed directly into the storm

water system.

(C.00215,

pp.

11-12).

This presents

a problem in that

water from those

ramps

may

be

contaminated by

waste,

as well as liquids from

the trucks,

such as fuel,

oils or grease.

(C.00215,

p.

12).

That

mix

of liquid

contaminants

and

storm

water

would

then

be

pumped

directly

into

the

storm

water

collection

system,

which

is

inappropriate.

Id.

Likewise,

contamination ofstorm water can occur from liquids that fall on the apron ofthe facility, as those

liquids

will

also

be

treated

as

storm

water under

the

current

design.

(C.00188,

pp.

38-39;

C.00215,

pp.

21-22).

Treating

those

liquids

as

storm

water

will

substantially

increase

the

likelihood ofcontamination.

(C.00188, pp.

38-39).

Because ofthis

risk of contamination, most

transfer stations

are designed with a

slope built into the apron area so that water that

falls onto

that area is treated as contact water, not storm water.

(C.002l5, pp. 22-23).

The Applicant’s

experts

seemed to

contend that

groundwater pollution

would

not be

a

problem for this

site because the site will be relocated above a layer ofTiskilwa till, which has a

low permeability factor.

(C.00 187,

p.

39).

However, other testimony

revealed it was less than

15

70372381v1 830017

---

clear

that this

“very

low permeability clay liner”

even

exists

under the

site because

no

cross-

section of site-specific geologic

conditions

was provided

(C.00187,

p.

53;C.00224,

pp.

94-95),

which seems

to suggest that the Applicant is

unsure of what the geology under

the site consists

of.

Additionally, no borings were taken below 30 to

35 feet to

determine if an adequate layer of

highly impermeable clay actually lies below the sand and

gravel layer at the site.

(C.00 187,

p.

60;

C.00224, p.

9).

Moreover, the certain well logs

produced for nearby

sites

do not

show the

presence ofthe Tiskilwa till layer.

(C.00224, p.

30).

Even if the Tiskilwa

till

layer were present in the areas surrounding the site, this

would

not

conclusively establish that

the till

was sufficiently present under this

particular site, as the

Applicant’s own witnesses explained that

Tiskilwa till

is

absent in

some areas,

and,

unless

this

area were already mapped, there would be no way ofknowing if this was an area where

till was

absent.

(C.00224.

p.

33).

Mr. Dorgan also

admitted that there are naturally occurring holes

in

that layer, which may possibly exist on this site.

(C.00l99,

pp.

69-70; C.00224,

pp. 70-71).

He

admitted that

no

studies

were

done

on the site itself to

determine if the till

layer was present.

(C.01 99, pp.

82-83).

If the

Tiskilwa till layer is

not present beneath the

site, the

groundwater

•will be able to

quickly move to other areas because sand and gravel less able

to retard than clay.

(C.00224, p.

94).

Again,

even if this clay till layer is

located under

this

site, this

does not

establish that

groundwater would not be able flow beyond the site itself,

as while a

layer of clay till

can slow

down

the

flow of water,

it

will

not

necessarily

completely

prevent

groundwater

migration.

(C.00188, pp.

3 1-32).

In fact, the Tiskilwa till layer does not seem to be

as impermeable as the

Applicant’s experts suggested, because the Tiskilwa till

in this general

area

is

actually made up

of approximately 70

sand and

silt,

and only about 30

clay.

(C.00224, p.

24).

Mr. Thomas

16

70372381v1

830017

---

estimated that it could take only a few months

to

a few years for contaminants introduced into

the

uppermost

aquifer

to

travel

through

the

till.

(C.00189,

pp.

22-23,

C.00190,

p.

80).

Therefore, if contamination does find its way into the uppermost aquifer, it will eventually flow

somewhere beyond the site, in turn adversely affectingthe public health, safety and welfare.

4.

The McHenry County Board correctly found that the facility would not be

so operated to protect the public health,

safety and welfare because it will

not be operated to control noise, odors or litter.

The testimony presented at the

siting hearing by

the witnesses, as well as the Applicant

himself, establish that the facility was not proposed to be operated

in a way that will protect the

health,

safety and welfare of the public.

First and foremost, the Applicant admitted that he has

no

experience with transfer stations, and does not know who the operator ofthis transfer station

will

be.

(C.00200,

pp.

20,

78;

C.00202,

p.

41,

59).

Because

of the

Applicant’s

lack of

experience,

he

admittedly

is

relying

on

others

to

set

up

a

“safe

and

efficient”

operation.

(C.00201, p.

62).

Because the Applicant himself is clearly not assuming direct responsibility for

establishing

a

“safe

and

efficient”

operation,

but,

instead,

is

relying

on

other

unknown

individuals

to

do

so, the Applicant

clearly

failed

to

establish that the operations of the facility

will

be

protective of the public health,

safety

and

welfare.

The testimony at the siting hearing

also established that the operations ofthe facility will not be performed in a way that will protect

the

public

health,

safety

and

welfare because

the

Applicant’s plan of operations

shows

that

potential impacts, such as odor, noise,

and litter will not be effectively controlled.

The evidence demonstrated that the facility as proposed would not

be operated

in a way

that

protects

neighbors

from

odors.

The

evidence

presented

at

the

hearing

showed

that

surrounding properties

will

be

adversely affected

if odors are present

on

the

site because the

prevailing

winds blow

from

and

across

the

facility to

The Hollows

and

the

Plote

property.

(C.00182,

p.

44).

There will clearly be odors present at the

site because inadequate protections

17

70372381v1 830017

---

were

proposed to prevent, or at least minimize,

such odors.

As

noted by the

Applicant’s own

witness

on the plan ofoperations for the facility, the tipping floor ofthe facility will be washed

with

water only

once

a

week

even though

literature,

including

a

document

on

waste

transfer

stations published by U.S.E.P.A.,

specifically provides that the tipping floor

should be

washed

daily to

reduce odors as well as the threat of vectors.

(C.00l81,

pp. 49-50, 74-76).

Mr.

Gordon

also

admitted that no misting procedures will be used to keep down odors and dust,

even though

misting

is

used

at

a

number

of

other

transfer

stations

and

can

significantly

reduce

odors.

(C.00181,

pp.

76-77;

00215,

p.

67).

In spite of the fact that the Applicant’s own expert expects

that odors will

emanate to

neighboring properties, particularly

the Plote property

(C.00183,

p.

59),

the Applicant

has not

created adequate operational

safeguards to

help minimize

that

odor,

and

have,

therefore,

not

created a

plan of operation

that

will adequately protected the

health,

safety and welfare ofthe public.

Another

feature missing

from the

operating

plan of the Applicant

is

an

adequate

litter

monitoring

and

control plan.

It

is

undisputed that a transfer

station

will cause

litter to

find it

ways to

surrounding

areas,

which

is

why

the Applicant

has

hired

someone who

will pick

up

litter.

However, the area to be covered by the litter patrol is inadequate, because according to the

Applicant

itself,

the

litter patrol

will

only

cover the

areas

that

the

Applicant

“believes”

are

directly

affected

by

transfer

station

operations.

(C.00203,

pp.

13-15).

Mr.

Gordon

recommended that

litter be patrolled within a half-mile radius ofthe

site (C.00 186,

pp.

18-19).

Mr.

Lowe,

on the other

hand,

specifically stated that he would not be willing to patrol for litter

one-half mile in either direction because he did not believe that the transfer station would cause a

litter problem that far away,

and thought it would be “grossly unfair” to require him to patrol that

distance.

(C.00203,

pp.

13-15).

As

such,

there was a

direct

conflict in

opinion on this

issue

18

70372381v1

830017

---

between Mr. Lowe and his own expert.

Moreover, it is evident that Mr. Lowe is very reluctant to

take

responsibility

and

ensure

a

litter

problem

does

not

arise.

Consequently,

the

plan

of

operations ofthis

facility

is not

consistent with

criterion (ii) because the presence of litter will

adversely affect the public

health,

safety and welfare, and

the Applicant has made clear that he

will only take responsibility for and clean up

only that amount of litter that he deems reasonable.

Another

problem with

the

operations

of the

facility

is

the

lack of planning

for noise

prevention and/or control.

In fact, the Applicant never even quantified the noise

level that will

be present at this site (C.00215, pp.

28-29; C.00 182,

p. 25), even though Mr. Zinnen specifically

stated that noise is

an area of concern that needs to be addressed at transfer stations (C.00182,

p.

24).

The

noises

that

are abundant

at transfer stations

such

as

the one

proposed in

this

case

include

those

from

the diesel truck engines

as well as beepers which

sound on vehicles when

they back up.

(C.OOl84,

pp.

68, 70).

According to Applicant’s own expert, sounds

from these

back-up alarms can reach as high as

100

decibels,

and

are

“horrible

for neighbors.”

(C.00186,

pp.

8,

66).

Again,

despite the

concerns about those noises, no

noise

expert was ever called by

Applicant to testify as to

mitigation measures that would be employed, and Applicant’s witnesses

who

did testify had no idea what noise level would be present at the boundary ofthe facility and

neighboring properties.

(C.00 186, pp.

9-10).

The level ofnoise presented at this

site is particularly problematic because there

is very

little

buffer between

surrounding neighbors

(such as

The Hollows),

and

the

transfer

station,

which

is

why Mr. Nickodem suggested

building

a

concrete wall between the

station

and

The

Hollows to keep out as much noise as possible.

(C.00215,

p.

64-65).

Presently, the only buffer

suggested between the transfer station buildings and The Hollows

is ground vegetation or trees.

(C.00l82,

p.

23).

Mr.

Gordon also

admitted that there were sound barriers other than trees that

19

70372381v1 830017

---

could

be

used

to

lessen

sound

to

neighbors,

such

as

barrier

walls.

(C.00186,

p.

10).

Mr.

Nickodem saw

no

reason

why such a

wall should

not

be

built to

separate those

properties and

minimize the effect on The Hollows.

(C.002l5, p.

64-65).

However, no

barrier wall

is planned

for this

site.

Additionally, no other provisions are planned for the site that will lessen or reduce

the amount ofnoise that will come from the operations ofthe facility.

For all

the reasons set

forth in detail above, the testimony and evidence presented at the

siting hearing clearly establish that the

decision of the McHenry County Board with respect to

criterion (ii) was

appropriate.

This was not a situation like that presented in

Industrial Fuels &

Resources/Illinois,

Inc.

v.

Illinois Pollution Control Board,

227 Ill.App.3d

533, 546,

592

N.E.2d

148,

157 (1st Dist.

1992), where there was

“no evidence ofrecord to demonstrate that the design

ofthe facility is flawed from a public safety standpoint or that its proposed operations present an

unacceptable risk to the public health safety, safety and welfare.”

In the present case, more than

ample

evidence

was

presented

to

establish

that

the

location,

design

and

proposed

plan

of

operation for

this

facility were

not

adequate to

protect

the public

health,

safety

and

welfare.

Therefore,

it was

clearly proper for the McHenry County Board to

deny

siting approval to the

Applicant based

on criterion (ii).

C.

THE

MCHENRY

COUNTY

BOARD

PROPERLY

FOUND

THAT

THE

APPLICANT

FAILED

TO

SHOW

THAT

THE

FACILITY IS

SO

LOCATED

TO MINIMIZE THE INCOMPATIBILITY WITH THE CHARACTER OF

THE

SURROUNDING AREA AND TO MINIMIZE THE EFFECT OF

THE VALUE

OF

THE SURROUNDING PROPERTY.

Section

39.2(a)(iii)

of the

Act,

also

known as

criterion

(iii),

provides

that

the County

Board shall approve the site location suitability for a new regional

pollution control facility only

if

“the

facility

is

located

so

as

to

minimize

the

incompatibility

with

the

character

of the

surrounding

area

and to

minimize

the

effect

on

the value

of the

surrounding property.”

415

ILCS

5/39.2.

This criterion requires

an

applicant to

demonstrate more than minimal

efforts

to

20

70372381v1

830017

---

reduce the landfill’s

incompatibility.

File v.

D &

L Landfill,

Inc.,

219 Ill.App.3d

897, 907,

579

N.E.2d

1228,

1236

(5th

Dist.

1991).

An applicant must demonstrate that it has done or will

do

what is reasonably feasible to minimize the incompatibility.

Waste Management ofillinois,

Inc.

v.

Illinois Pollution

Control Board,

123

Ill.App.3d

1075,

1090, 463

N.E.2d 969,

980

(2d Dist.

1984).

In the present case, conflicting evidence was presented with respect to

criterion (iii)

by

Mr. Frank Harrison, Mr. Larry Peterman, Mr. N. Drew Petterson,

Mr. Cameron Davis, and Mr.

John Whitney.

However, the evidence adduced in this case squarely supports the findings of the

County

Board that the Lowe Transfer Station was not designed to minimize the incompatibility

with

the

surrounding area and

minimize

the

effect of the transfer

station

on the

value of the

surrounding properties.

Mr. Cameron Davis, the Village of Cary Administrator, testified that the Lowe Transfer

Station

negatively

impacts

the

character of the

surrounding

area,

specifically

property

that

is

currently

incorporated in

the

Village of Cary.

(C.00205,

p.

65).

Mr.

Davis

also

testified

at

length

regarding

the

compatibility

of

the

transfer

station

with

the

Cary

Centennial

Comprehensive

Official

Plan (“Comprehensive Plan”).

The Comprehensive Plan

indicates that

the surrounding properties were

to be primarily for residential and recreational uses.

(C.00205,

p.

21).

Specifically,

the Comprehensive Plan indicates that the gravel mining area on the north

side of Route

14

at Three Oaks Road, near the proposed Transfer Station, was to be redeveloped

into

multiple

family

and

commercial

uses.

(C.00402,

p.

29).

The Comprehensive

Plan

also

encompasses the areawhere the proposed transfer station was to be located.

(C.00402, p.

35).

In examining the surrounding area, Mr. Davis explained in detail how the transfer station

was

incompatible

with

the

Plote

property

and

the

Kaper

development.

During

the

public

comment period after the Committee

hearings, the Village of Cary

annexed the Plote property,

•

21

70372381v1 830017

---

which

it zoned

R-1.

(C.04132-4174,

C.07175-7l82).

Prior

to

the

annexation,

the

proposed

transfer

station

was

to

be

located

approximately

1300

feet

from

a

residential

subdivision.

(C.00 182, p.

28).

After

the annexation, the proposed transfer station would be directly adjacent

to

an area zoned exclusively for residential development.

Mr. Davis described negotiations and

discussions concerning the Plote property, noting that the Village and Plote had been in talks to

annex the property for an

extended period of time.

(C.00205,

p.

23).

These discussions were

regarding the annexation of the property

into the

Village of Cary;

zoned for a

residential and

commercial development.

(C.00205,

pp.

27-29).

In addition,

Mr. Lowe

acknowledged that he

knew of these

on-going

discussions

between

Plote

and

the

Village,

and

even

attempted

to

expedite his

Application in hopes that the transfer station would be

sited before the annexation

occurred.

(C.00202,

p.

20).

Impliedly,

Mr.

Lowe

then

knew

the

transfer

station

was

incompatible with the other planned developments in the surrounding area.

Mr. Davis concluded

that

the

transfer

station

would

not

be

compatible

with

the

new

high

quality

residential

development which was to occur in accordance with the Comprehensive Plan.

(C.00205, p.

76)

Moreover,

Mr.

Larry

Peterman,

the

Applicant’s

own

witness,

admitted

that

he

could

not

recommend to

a client that the Plote property be

developed

under a multi-family residential use

scenario nextto the proposed transfer station.

(C.00 194, p.14).

Mr.

Davis

also

discussed

the

impact

the

transfer

station

was

having

on

the

Kaper

development

and

how

the

proposed

transfer

station

was

incompatible

with

it.

The

Kaper

development

is

directly across

the

street

from

where

the

proposed transfer

station

would

be

located,

and

interestingly

enough,

was

never

raised

or

discussed

in

the

Lowe

Application.

(C.00205, pp.

9,

15).

The concerns expressed to

Mr. Davis by potential developers of the Kaper

development were “how

close it is,

smells

and

things of that

nature.”

(C.00205,

p.

15).

The

22

70372381v1 830017

---

proposed transfer station,

in Mr. Davis’ opinion, was impeding the development of that property.

(C00208-23).

Specifically,

Mr.

Davis

stated that having

direct

and

immediate contact with

a

waste

transfer

station,

dealing

with

the

kind

of volume

and

traffic

surrounding

the

transfer

station,

and

the

stigma

attendant to

garbage

smells

in the

area were just

a few of the

items

impeding development.

(C.00208, p. 24).

Also, the Applicant’s own expert, Mr. Frank Harrison,

agreed that the perception

of the transfer

station

could impact the

surrounding property values

and

attach a

stigma

to

the property.

(C.00193,

p.

29,

C.00194,

p.

5).

This

stigma,

affecting

housing

developments

and

property

values,

provides

ample

support

for

the

County

Board’s

determination that

the

transfer

station

was not

compatible

with

the

surrounding area,

and

is

directly incompatible with the Comprehensive Plan calling for high end residential development

on adjoining parcels.

Mr. Davis also indicated that the Lowe Transfer Station would not be compatible withthe

Comprehensive Plan because it was not

fulfilling the need for a

recycling facility

in

the

area.

(C .00205, pp.

30-41).

In addition,

under another criteria included in

the Comprehensive

Plan,

the proposed transfer station would not be

compatible as the transfer station would be located at

the gateway ofthe Village of Cary.

(C.00205, pp.

5

1-52).

Mr. Larry Peterman, the Applicant’s

own

expert,

admitted

that

he

would

not

advise

a

client

to

develop

a

transfer

station

at

the

entrance to a city or town such as Cary.

(C.00 193,

p. 96).

The transfer station, in addition to

being directly incompatible with the commercial and

residential neighborhoods

in the area,

is

incompatible with the

remaining land surrounding the

site;

namely,

the Hollows.

Mr. N. Drew Petterson, an urban planner,

offered his

evaluation of

the compatibility

of the Lowe

Transfer Station

in this regard.

Mr.

Petterson specifically

stated

that it was his

conclusion that

“the proposed transfer

station land use is

incompatible with the

23

70372381v1 830017

---

adjacent Hollows uses because ofthe addednoise,

litter, odor, fumes, use oftrucks either waiting

to

access the facility or waiting

to

exit onto

Route

14.

All of these impacts are not

consistent

with the recreation uses that are offered on that site.”

(C.00208, p.

89).

Mr. Petterson also added

that

his

review

of

the

current

land

use

in

McHenry

County

2010

Plan

and

the

Cary

Comprehensive Plan indicated that the proposed Lowe Transfer Station would be inconsistentfor

the appropriate future use for the subject property.

(C.00208, p.

97).

The

second

part

of criterion

(iii)

requires

the

transfer

station

to

be

located

so

as

to

minimize

the

effect

on

surrounding property

values.

Testimony

was

elicited

from

Mr.

John

Whitney regarding the effect of the Lowe Transfer Station

on the surrounding property values.

Mr.

Whitney

offered

his

opinion that

the

lack of comparable

studies

regarding the

impact of

transfer stations on residential use indicates that an inherent incompatibility exists.

(C.00220, p.

33).

In

Mr.

Whitney’s

opinion,

residential

properties

and

waste

transfer

stations

in

close

proximity

thereto

are

just not

compatible.

In

fact,

a

study

performed

by

Mr.

Harrison,

the

Applicant’s own appraiser, of the Princeton Village

subdivision,

bears

this point out.

However,

Mr.

Whitney

also

demonstrated

that

Mr.

Harrison’s

evaluation of the

surrounding

property

values

in

the

study

did

not

adequately

address,

from

an

appraisal

standpoint,

whether

the

proposed Lowe

Transfer

Station

facility was located to minimize the

effect of the value of the

surrounding property.

(C.00220, p.

28).

Mr. Whitney testified that Mr. Harrison did not remove

all ofthe other influences on the property value so as to sufficiently isolate the actual effect ofa

transfer station

on adjoining property

values in his

report.

(C.00220,

pp.

30-31).

In doing

so,

Mr.

Harrison’s report and testimony that the property values ofresidential homes surrounding a

transfer station

were

not

affected

by

the

transfer station

were

brought

into

serious

question.

24

70372381v1 830017

---

Again, it is

the function ofthe County Board to

assess the credibility of the witnesses, and draw

its own conclusions.

See

Tate,

188 Ill.App.3d at 1022, 544 N.E.2d at

1195.

Mr. Whitney

also

opined that Mr. Harrison’s calculated appreciation rate was incorrect.

(C.00220, p.

88).

Mr. Whitney declared that Mr. Harrison calculated the appreciation ofaverage

home sales, rather than correctly ascertaining the average ofthe appreciation rates.

(C.00220, p.

88)

In doing so,

Mr. Harrison’s

appreciation rate varied 50

from Mr.

Whitney’s calculations.

(C.00220,

p.

73).

Later,

when pressed by

Mr.

Klasen,

a

County Board

member,

Mr. Whitney

testified that

the

appreciation rate for an

average

home

is

between

5-6.

(C.00220,

p.

88).

Under both Mr. Harrison’s and Mr. Whitney’s calculations surrounding the appreciation ofhomes

in the Princeton Village

study,

the appreciation rate was

less than 2.5

(C.00220, p.

73).

Mr.

Klasen pointed out that in the Princeton Village

study,

18 out of the 37 homes

in the subdivision

had less than a

1

appreciation rate.

(C.00220, p. 88).

Mr. Whitney agreed that the appreciation

rate was “not good.”

(C.00220, p.

88).

Based

upon

all of this

testimony,

it was clearly

not

against the manifest

weight of the

evidence for the County Board to conclude that the facility was not located so as to minimize the

incompatibility with the character ofthe surrounding area, or to minimize the effect on the value

ofthe surrounding properties.

The Board was presented with more than adequate testimony that

the Lowe Transfer Station was negatively impacting the surrounding area, both in terms offuture

development and

in

terms of property valuation.

Therefore,

the decision of the Board

that the

Lowe Transfer Station was not compatible with the surrounding area was clearly not against the

manifest weight ofthe evidence.

25

70372381v1 830017

---

D.

THE MCHENRY

COUNTY BOARD PROPERLY FOUND

THAT THE

PLAN

OF

OPERATIONS FOR

THE FACILITY IS NOT DESIGNED TO MINIMIZE

THE

DANGER

TO

SURROUNDING

AREA

FROM

FIRES,

SPILLS

OR

OTHER OPERATIONAL ACCIDENTS.

Under section 39.2(a)(v), also known as criterion (v), an applicant is required to establish

that

“the plan of operations for the

facility is

designed to

minimize

the

danger to

surrounding

area from

fire,

spills

or

other operational

accidents.”

415

ILCS

5/39.2(a)(v).

The McHenry

County Board correctly found that this

criterion was also not met by the Applicant in this

case

because of the

lack of procedures in

place to

protect

against fires,

spills

and

other operational

accidents.

Like criteria (ii) and (iii), there was also conflicting evidence with respect to criterion (v).

The

Applicant’s civil

engineer,

Mr.

Gordon,

specifically testified that the Application satisfied

criterion (v) (C.00179,

p.

43);

however,

the

objectors’ witnesses, Mr.

Thomas,

Mr.

Nickodem,

and Mr. Sutherland, all testified that the Application did not satisfy criterion (v) (C.00 189, pp.

9-

10;

C.00215, p.

55; C.00218, p. 80).

As stated above, it is the sole province ofthe County Board

to assess the credibility ofthe experts and weigh conflicting evidence.

See

Tate,

188 Ill.App.3d

at

1022,

544 N.E.2d at

1195.

Here,

the McHenry County Board clearly did

so

and

determined

that

criterion

(v)

was

not

met

based

upon

the evidence

presented.

That

decision

cannot be

against the manifest weight of the evidence in that the evidence presented at the siting hearing

clearly established there are many safety concerns with respect to the proposed transfer station,

which in

turn

shows that

the facility will not be

operated to minimize

the danger of fires,

spill

and

other operational accidents.

One ofthe maj or safety

concerns that was repeatedly raised was the lack of adequate fire

protection

in

the Application.

The

Applicant’s

own witness,

Mr.

Keith Gordon, admitted

that

there

are

no

sprinklers

in this

facility,

even though

he

has

known of fires

to

occur in

transfer

26

70372381v1 830017

---

stations and has equipped other transfer stations with sprinklers.

(C.00 179, pp.

69-70,

75).

Mr

Gordon admitted that the possibility of a fire is real because it is possible for waste to

smolder,

come in contact with open air and in turn

cause a fire.

(C.00 179, pp. 76).

In fact, the possibility

of

a

fire in

this

transfer

station

is

much greater

than

the

risk

in

most

other

transfer

stations

because the trucks

will

be

fueled

inside the

building,

which is

something

that

is

not typically

done

inside transfer stations

(C.002l5,

p.

30, pp.

91-92).

As

explained by Mr. Nickodem, the

reason

that

fueling

is

not typically

done

inside buildings

is

specifically

due

to the

risk

of fire.

(C.00216,

pp.

24-25, 28-29).

Despite

the increased

risk

of fueling inside, the

transfer facility

does

not

have

sprinklers,

but

merely

has hand-held

fire

extinguishers,

which

Mr.

Nickodem

stated were

“insufficient”

because

they

would

only

be

sufficient

to

address

very

smaji

fires.

(C.00215,

pp.

3 1-32, 00216,

p.

9).

Additionally,

there

is

an

increased

risk of fire

due

to

the

proximity of The Hollows because ofnumerous

trees located along the property line.

(C.002

15,

p. 32-33).

Another concern with respect to

fire protection is where water necessary to fight a fire

in the facility will come from,

as the transfer station

is not located in close proximity to

any fire

hydrants,

and the site has no

other major source of water.

Mr. Zinnen admitted that he did not

know where the water to fight a fire would

come from because there is

no storm water retention

pond on

the

site;

he

simply assumed that the fire trucks would

be

able to

supply

an

amount of

water sufficient to

put out any fires

that may occur.

(Cl.00 179, pp.

78-79).

However, no

expert

was offered by the Applicant on this issue.

Another major safety problem that

demonstrates

this

facility does not have an

adequate

plan

of operations that

will protect

against fires,

spills

and

other

accidents

is

the

lack of spill

protection for the

site.

According to the Applicant’s own expert, the Applicant does not yet have

a

spill prevention plan.

(C.00 179,

p.

84).

The Applicant

has also

failed

to

determine who to

27

70372381v1 830017

---

contact in the event ofa

spill or other emergency on the site.

(C.00180, pp.

14-15).

In fact, the

Applicant

himself stated

that he

would

not

know

what to

do

in

the

event of a

spill

or other

emergency on site.

(C.00201, p.

19).

Furthermore,

the

Applicant

has

failed

to

put

into place

measures

that

will help

guard

against spills.

Mr. Zinnen admitted

that there is

no provision in place to

shut off the flow into

the storm water system if there is a spill, leak or any other evidence of contamination.

(C.00 181,

pp.

82-83).

However,

the

objectors’

witnesses

testified

that

such

a

control

measure

was

necessary to

stop the

ability of contaminants to

reach the ground water.

(C.002l6,

pp.

19,

25;

C.002l8,

p.

73)

Mr. Nickodem testified that he

would

normally provide valves or gates in

a

storm

water

system,

so

that

if

a

spill

occurs,

the

water

which

has

come

into

contact

with

contaminants

will

not

go

directly

into

the

catch

basin,

which

then

goes

directly

into

the

underground system and then into the ground water.

(C.00215, p.

17).

Mr. Sutherland testified

that some provision for spill isolation, such as a valve, to prevent a spill from entering the storm

water system was necessary because without some type of spill prevention device, contaminants

could be

introduced

into the groundwater.

(C.002 18,

pp.

82-83).

Mr. Nickodem also

believed

that it was appropriate to provide curbing as an additional control measure to help

stop the flow

of a spill onto neighboring properties.

(C.002l5, pp.

18-19).

Because the Applicant has failed to

adequately protect against the effects of spills, the Applicant has clearly failed to meet criterion

(v).

The fact that inadequate safeguards were in place to minimize the threat of a spill and/or

groundwater

contamination to

neighboring properties was

also

apparently clear

to

members of

the

McHenry

County

Pollution

Control

Facility

Committee.

At

the

meeting

where

the

committee members voted on each

criteria, Mr.

Klasen commented that he

did

not believe the

•

28

70372381v1 830017

---

facility satisfied criterion (v) because he had

“major concerns about spills,” especially since the

water

from

the

site

would

be

traveling

to

Lake

Plote

and

eventually

to

Lake

Killarney.

(C.07237,

p.

20).

As

was

clearly

noted

by

the

McHenry

County

Pollution

Control

Facility

Committee, the facility will not adequately protect against fires, spills and other accidents.

The Applicant

also fails to meet

the requirements of criterion (v) because the Applicant

has not

set

forth

adequate procedures

for dealing

with

hazardous waste

(C.00215,

pp.

23-27).

Mr. Gordon testified that if a hazardous waste was found, the Applicant would likely call a firm

that

handled

such

material

to take it away

and

sample

it.

(C.00l80,

pp.

32).

However, no

arrangement

has

been

made

with

any

such

firm,

and

it

is

unknown

whether

the

firm

so

designated could adequately address the problems which may arise.

(C.00180, pp.

32-33).

Mr.

Nickodem

testified

that

other

transfer

station

sites

he

is

familiar

with

have

boxes

in

which

potentially

hazardous

waste

is

locked

and

secured,

which

is

safer

than

simply

putting

the

hazardous

waste

to

the

side

until

a

response

contractor can makes

it

way to the

site,

as

the

Applicant plans

to

do.

(C.002l5, pp.

78-79, 90-91).

The Applicant does not even plan to

have

leak-proofcontainers

on site in which to keep the hazardous waste, but, instead, is relying on the

contractor or firm it retains to provide the equipment.

(C.00 180, p.

29).

Clearly,

such a plan of

operations

is

inconsistent

with

the

notion

of adequately

safeguarding

against

environmental

accidents, as a comprehensive and safe plan for dealing with suspected hazardous waste had not

beenproposed.

There was

clearly ample

evidence for the McHenry County Board to rely on in reaching

its decision that the plan of operations was not designed to minimize the danger of fire, spills or

other

environmental

accidents.

As

such, the

County’s

decision was

not

against

the manifest

weight of the evidence and must, therefore, be upheld.

See Fairview,

198

Ill.App.3d at 552-53,

29

70372381v1 830017

---

555

N.E.2d

at 1185

(explaining that as long

as there is evidence to support the county’s decision,

the decision is not contrary to the manifest weight ofthe evidence).

E.

THE

COUNTY BOARD’S IMPOSITION

OF

A “HOST FEE” AS

A SPECIAL

CONDITION OF APPROVING CRITERTON (VIII) WAS LAWFUL

This

Board

should

not even address Co-Petitioners’

contention

that the

County Board’s

imposition

of a

“host

fee”

was unlawful because that

argument

does not

present a justiciable

controversy

that

is

ripe

for

adjudication.

It

is

well-settled

that

a

justiciable

controversy

is

necessary for a court or tribunal to have subject matter jurisdiction over a particular matter.

See

People v.

Capitol News,

Inc.,

137 Ill.2d

162,

560 N.E.2d 303,

(1990); Ill.

Const.

1970, art. VI,

§

9.

However, the justiciable

controversy requirement cannot be

satisfied where the underlying

issues in the case are premature.

Sharma v.

Zollar,

265

Ill.App.3d

1022,

1027,

638 N.E.2d 736,

740

(1st Dist.

1994).

In the present

case, the

co-Petitioner’s argument that the County Board’s

imposition of the

“host fee” was unlawful is not ripe for adjudication because the County Board

denied siting approval to the Applicant, and because ofthat denial, the Applicant will clearly not

be required to pay any “host fee.”

Because any decision by this Board as to

whetherthat host fee

was

lawful

would

have

no

effect

on

the

issues

it

this

case,

any

such

decision would

be

an

advisory opinion, which is strictly prohibited under Illinois law.

See Barth v.

Reagan,

139 Ill.2d

399,

419,

564

N.E.2d 1196,

1205

(1990).

If, however,

this

Board does address Co-Petitioners’

argument regarding the

County’s

imposition of a host fee,

for the reasons

set

forth below, it is

clear that the County Board’s imposition ofthe host fee was lawful.

The

imposition

of

a

condition

is

specifically

authorized

by

Section

39.2(e)

of the

Environmental

Protection

Act.

Section

39.2(e)

of the Act

specifically

provides

that

a

County

Board

“may

impose

such conditions

as

may

be

reasonable

and

necessary

to

accomplish the

purposes ofthis

Section and as are not inconsistent with regulations promulgated by the Board.”

30

70372381v1

830017

---

415

ILCS

5/39.2(e).

Section 39.2(e)

specifically

allows

a local unit of government to negotiate

and

enter

into

a

host

agreement

with

a

local

siting

applicant,

and

requires

the

terms

and

conditions of that agreement to

be disclosed and made a part of the hearing record.

415

ILCS

5/39.2(e).

Illinois

has

also

determined that

economics

is

a

relevant

consideration

under

Section

39.2,

and

it

is

within

the

local

siting

authority’s

discretion

to

consider

it.

See

Concerned

Adjoining Owners

v.

Pollution Control Board,

288

Ill.App.3d

565,

535,

680

N.E.2d

810,

817

(5th Dist.

1997).

Pursuant to

criterion

(viii) of section 39.2 of the

Act,

the McHenry County

Board was required to consider the economic impact ofthe proposed transfer station and had the

authority

to

impose

a

host

fee that would

be

economically

beneficial

to

the

County.

Section

39.2(a)(viii)

required the

County

Board to

determine if the transfer facility was consistent with

the

County’s

Solid

Waste Management Plan,

which

was

drafted

pursuant to

the

Solid

Waste

Planning

and

Recycling

Act.

415

ILCS

5/39.2(a)(viii).

The

Solid

Waste

Planning

and

Recycling Act

specifically requires that counties implement

solid waste management

plans

that

evaluate the

economic advantages

and

disadvantages of proposed waste

management

facilities

and programs.

415

ILCS.

l5/4(c)(4).

As a result, the McHenry County

Board clearly had

the

authority to

examine the economic impact that the transfer station would have on the County

and

was justified in determining that a reasonable host fee was required.

Accordingly, it is

lawful for

the County Board to

impose a host fee as a special

condition of approving criterion (viii) under

Section 39.2.

Furthermore,

the

imposition

of a

host

fee

was

authorized

because

the

host

fee

was

proposed by the applicant himself,

and Mr.

Lowe

specifically agreed to

accept a condition of a

host community payment equal to what the evidence showed was necessary

to

defray the impact

31

7O372381v1 830017

---

ofthe facility on the County.

(C.00203,

pp.

26, 28).

During his testimony, and

consistent with

the proposal set forth in the Executive Summary portion ofthe Application, Mr. Lowe suggested

a host fee

of 400

per ton to the County,

100

per

ton to the Defenders,

and

100

per ton to

a

scholarship fund.

(C.00203, p.

23).

Mr.

Lowe testified that it was his

intention in making the

host community pledge to

offset any cost or impact that the County may incur or experience as a

result of the operation ofthe transfer station.

(C.00203, p.

25).

Mr. Lowe stated it wasn’t the

Applicant’s intention to cost the County any money to

inspect or maintain the facility.

(C.00203,

p.

27).

Mr. Lowe specifically stated, “I wouldn’t have a problem if the County got

into this and

found out that they couldn’t do it for 400

per ton.

I wouldn’t have any problem with increasing

400

per ton.”

(C.00203,

p.

25).

Mr. Lowe went on to

state that he would not have a problem

with a cost ofliving increase in the host fee.

(C.00203, p. 28).

According to

this testimony,

it is

clear that Mr.

Lowe

had agreed to

pay

a host

fee as a

special

condition

of

approving

criteria

(viii).

Mr.

Lowe’s

testimony

showed

considerable

flexibility

in

determining

the reasonableness

of the host fee.

Mr.

Lowe

left

it to

the

County

Board

to

decide how much

the host

fee

should

be

to

cover the

costs

incurred in

addressing

impacts

associated with the transfer station.

Therefore,

the host fee was

authorized and lawful.

The imposition of a $1.90 per ton host fee is clearly reasonable to

offset the

costs ofthe

County.

The McHenry County

staff, which

includes staff from the McHenry County Planning

and

Development,

the

McHenry

County

State’s

Attorney’s

Office,

the

McHenry

County

Department of Environmental

Health,

and Patrick Engineering,

Inc.,

reviewed the Application

for Siting

Approval for the

Lowe

Transfer Station

and made

recommendations to

the

County

Board regarding the host fee.

(C.03889-3890).

The County staff believed that the 400

per ton

originally offered to the McHenry County Board as a host fee by

Mr. Lowe was insufficient.

Id.

32

70372381v1 830017

---

The

County staff found that

additional

fees

were

required to

minimize the financial burden on

the

County

for

inspections

and

to

provide

disposal

alternatives

to

the

citizens

of

McHenry

County.

Id.

The

County

staff

recommended

that

the

Pollution

Control

Facility

Siting

Committee

implement

a

reasonable

host

fee similar

to

other

fees

required in the region in the

amount of $1.90 per ton.

Id.

In determining the appropriate host fee amount, the staffrelied on two host fees

figures in

place in the relevant geographical area.

Id.

The first host fee agreement was the DuPage County

Generic Host Community Benefit Agreement.

(C.03898-03929).

That Agreement provided for

fees of at least $1.68

per

ton

in

2002,

$1.69

per

ton in

2003,

and

a

$1.70

per

ton

fee plus

an

increase based upon the Consumer Price Index or Urban

Consumers

(CPI-U)

in 2004 and each

year thereafter, with no downward adjustment.

(C.03911-03914).

The other host fee agreement

relied upon by the County staff was an agreement between Onyx and the City ofBatavia, which

provides for fees of $1.90 for the first 400 tons

of waste received per day and a $2.00

for every

ton in

excess of 400

tons.

(C.03938-03945).

This host fee was also

adjusted upward annually

based upon the CPI-U.

(C.03942).

Both host fee figures

were clearly designed to

fairly offset

the impact ofproposed transfer stations upon the local unit ofgovernment in question.

Based

upon

the

staff

recommendations,

the

County

Pollution

Control

Facility

Siting

Committee determined that a fee of $1.90 per ton,

with a yearly increase based upon the CPI-2

was reasonable

and

commensurate with the evidence.

(C.07237,

p.

35).

Keeping in

mind that

Mr. Lowe stated that he would be willing

to

pay a fee that increased yearly in an amount that the

County

thought was

necessary,

and

was willing

to

pay

a

host

fee which

would

alleviate any

burden on the County for the transfer station, the County Board’s decision to

impose a

host fee

33

70372381v1

830017

---

of $1.90 per ton was reasonable and within its discretion.

Therefore, Petitioner’s claim that the

host fee was unauthorized and unlawful must fail.

F.

THE

MCHENRY

COUNTY

BOARD

LAWFULLY

APPLIED

THE

UNNUMBERED CRITERION OF SECTION 39.2(a) OF THE ACT

Petitioner contends that the County Board unlawfully considered the Applicant’s previous

operating experience and

past record ofconvictions

or admissions of violations.

However, that

is

clearly

not

the

case,

as

Section

39.2(a)

of

the

Illinois

Environmental

Protection

Act

specifically

allows

county

boards

or

other

governing

bodies

to

consider

these

factors

in

conjunction with criteria (ii) and (v) set forth in section 3 9.2(a).

See

415 ILCS

5/39.2(a).

As set

forth in

39.2(a),

“the county board or the governing body of the municipality may also

consider

as evidence the previous

operating

experience and

past record of convictions or admissions

of

violations

in the field ofsolid waste management when considering criteria (ii) and (v) under this

Section.”

415 ILCS

5/39.2(a).

Additionally, case law from the appellate courts as well as the IPCB have established that

it is

appropriate for a county board or local

governing body to

consider an applicant’s previous

operating experience.

See Medical Disposal Services, Inc.

v.

Environmental Protection Agency,

286

Ill.App.3d

562,

677

N.E.2d

428

(1st

Dist.

1997)

(“Section

39.2(a)

of the

Act

permits

localities

to

consider

the

applicant’s

previous

operating

experience.”);

Saline

County Landfill,

Inc.

v.

Illinois Environmental Protection Agency,

PCB

02-108, slip

op.

at *14

(April

18,

2002)

(same).

The PCB in

Saline

County

explained:

“Pursuant to

section 39.2(a)

.

.

.

localities

are to

approve not just the site’s

location and the facility but also

the operator ofthe facility.”

PCB 02-

108,

slip

op.

at

*14.

The County

Board of McHenry County

did just

that in

considering the

operating experience ofthe Applicant in this case.

34

70372381v1 830017

---

Paragraph J

“Unnumbered

Criterion” of the Resolution

of the McHenry County

Board

Concerning the Lowe Transfer,

Inc.

Application for a Pollution Control Facility, dated May 6,

2003,

which

provides

that

“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),” cannot be

an

unlawful

application of 415

ILCS

5/39.2,

as asserted by Petitioner,

because it is

in

absolute

conformity

with

415

ILCS

5/39.2.

In

fact,

the

language

contained

in

Paragraph J

directly

quotes

the

language

contained in 415

ILCS

5/39.2, and, therefore, cannot constitute an unlawful application

ofthe Act.

Furthermore, the

County

Board was justified

in

considering the Applicant’s experience,

or lack thereof, in determining whether the Applicant complied with

criteria (ii) and (v) because

the

evidence

presented

at

the

hearing

revealed

that

the

Applicant,

Marshall

Lowe,

had

no

experience

in

the

operation

of a

transfer station,

and

was

simply

relying

on

other

unknown

individuals to run the proposed pollution control facility.

In fact, throughout his

testimony, Mr.

Lowe repeatedly stated that he had no experience operating a transfer station.

(C.00200, pp.

20,

78;

C.00202,

p.

41).

Even more telling

is

Mr.

Lowe’s admission that he

did not even read the

application

that he filed and signed.

(C.00203, p.

48).

Rather, Mr.

Low stated that he

merely

relied

on

other

people to

make

sure it was

accurate

and

completed.

Id.

Mr.

Lowe

further

admitted that he had no employees trained in solid waste handling and transfer

(C.00200, pp.

27,

79) and had “no clue” who would be the operator ofthe transfer station.

(C.00202, pp.

59).

In

fact, he admitted he would rely on others to find “qualified” people

to run the operation, because

he himself would

not be

able

to

determine who would

be

“qualified”

(C.00200,

p.

20).

Lowe

also conceded

he was relying on

others to

set

up a

“safe and efficient”

operation.

(C.00201,

p.

35

70372381v1 830017

---

62).

He admitted that he did not know what he would have to do to properly respond to a spill or

similar

problem

at

the

transfer

station.

(C.0020l,

p.

19).

The

only

other

officer

in

his

corporation,

Lowe Transfer,

is

his

wife,

who

also

has no

experience in the area of solid

waste

transfer.

(C.00202, p. 39).

Clearly,

the

McHenry

County

Board

had

the

discretion

(and,

more

importantly,

the

obligation to

its citizens), under

Section

3 9.2(a) of the Act to

consider all ofthe statements made

by Mr. Lowe regarding his

lack of experience with solid waste transfer stations.

As was made

clear throughout Mr.

Lowe’s testimony, he

had

absolutely

no

experience with transfer stations,

and had no

idea how to run a transfer station.

Because Section 39.2(a)

allows county boards to

specifically

take

that

factor

into

consideration,

the

McHenry

County

Board

was

certainly

justified

in

doing

so,

and

subsequently concluding

that

Mr.

Lowe’s

lack

of experience would

negate the Applicant’s ability to satisfy criteria (ii) and (iv).

Moreover,

the County

Board was

also

entitled to

consider the Applicant’s experience in

his

present

business, which

may

or may not

constitute solid waste

management, because it

is

germane

to

his

Application

and

is

relevant in

ascertaining how Mr. Lowe

would

operate

this

facility.

In fact, it was Mr. Lowe himself who brought up his operation of his current business,

Lowe Enterprises, in an attempt to establish what kind of waste transfer operation he

would run.

Lowe touted

his current business operation,

explaining that he has received no

complaints from

neighbors, has exceeded the requirements set

forth in the County code, and has been told that his

materials recycling

site

is

one of the

two

cleanest in

the

United States.

(C.00200,

pp.

18-19;

C.00200,

pp.

32-33).

Because Mr. Lowe and his

counsel brought up

Lowe Enterprises and Mr.

Lowe’s operation ofthat business, it was clearly appropriate for Mr. Lowe to

be cross-examined

about the operation of

Lowe Enterprises.

See People

v.

Fontana,

251

Ill.App.3d 694,

702,

622

36

70372381v1 830017

---

N.E.2d

893,

869

(2d

Dist.

1993), quoting

People

v.

McCarthy,

213

Ill.App.3d

873,

883,

572

N,E.2d

1219,

1226

(4th

Dist.

1991)

(“The

proper

scope

of cross-examination extends

to

all

matters raised on direct

examination, including

all matters which explain, qualify or destroy the

testimony on direct examination.”).

Mr. Lowe’s testimony

and cross-examination by Ms.

Angelo,

attorney for the Village

of

Cary,

revealed that

he

may

be

violating a

number of environmental

regulations

in

his

current

business.

First and foremost, Mr. Lowe admitted that he does not have a

solid waste permit, but

has only an air permit.

(C.00200, p.

37).

Moreover,

a solid waste permit may in fact be required

by section 21(d) ofthe

Act for Mr.

Lowe’s current business.

415

ILCS

5/21(d).

Furthermore,

Mr.

Lowe

admitted

that he has probably not followed the requirements

of section 22.38

of the

Act,

415

ILCS

5/22.38,

which

may

apply

to

him,

because

he

fails

to:

(1)

follow

certain

procedures in shipping recycled materials offsite within six months, 415 ILCS

5/22.38(b)(4); (2)

sort and

dispose

of non-recyclables within 72

hours, 415

ILCS

5/22.38(b)(2); (3) take less than

25

non-recyclables, 415 ILCS

5/22.38(b)(3);

(4) control noise, 415 ILCS 5/22.38(b)(7); control

storm water runoff, 415

ILCS

5/22.38(b)(8); (5)

keep certain records

and do

certain labeling to

show

compliance,

415

ILCS

5/22.38(b)(6);

and

(6)

control

access

to

the

facility,

415

ILCS

5/22.38(b)(9).

(C.

00200, pp.

30-36, 44,

53-57).

Lowe also

admitted

he allows

contractors

to

dump waste in his

facility after hours by leaving the gate opened at all times.

(C.00200, pp.

47-

48,

53-56).

These

are just

a

few of the

environmental

regulations

that

Mr.

Lowe

may

be

violating in

his

current

business,

Lowe

Enterprises, and

it was

absolutely

appropriate

for the

County

Board to consider these possible violations

in determining whether the proposed facility

would meet the requirements set forth in criteria (ii) and (v) ofsection 39.2 of the Act.

37

70372381v1 830017

---

Even if in fact Mr. Lowe does not violate any environmental rules,

statutes or regulations

in

his

current

operation

of

his

business,

the

cross-examination

of

Marshall

Lowe

was

still

relevant,

and

could be

considered by the

County Board

because it revealed that Mr. Lowe

had

absolutely

no

knowledge about Illinois

environmental regulations

and

laws, and

had little or no

interest or intention of becoming informed about them.

In fact, he admitted that he has taken no

steps

to

ensure that his current business is

in compliance with Illinois Environmental Protection

Agency land regulation and has never asked Illinois Environmental Protection Agency Bureau of

Land if he

needs to provide notices or information to

that division (C.00200, p.

37).

Mr. Lowe

has not provided any

notice to

any department of the Illinois

Environmental Protection Agency

other

than

the

Bureau

of Air

(C.00200,

p.

57)

and

suggested

that

it

would

be

the

EPA’s

responsibility

to

let

him know what

was required under

the Illinois

Environmental

Protection

Act.

(See

C.00200,

p.

41).

Such testimony

can certainly be

considered by the County Board in

determining whether the Applicant is

likely to

abide by the laws and regulations which relate to

the proposed pollution control facility.

For

the

reasons

set

forth

above,

it was

entirely appropriate

for the

County

Board

to

consider the previous

operating

experience of the Applicant

as well as the

Applicant’s general

attitude

about complying

with

environmental regulations

in general.

Consequently, the County

Board clearly did not apply Section 39.2(a) in an unlawfulmanner.

G.

THE

MCHENRY

COUNTY

BOARD

PROPERLY

SET

FORTH

THE

REASONS FOR ITS DECISION ACCORDING TO SECTION 39.2.

Petitioners

claim that the record fails to

show

any basis for the County Board’s decision

denying Petitioner’s

Request for

site location

approval for a

municipal

waste

transfer station.

Petitioners

infer a violation of Section

39.2(e) of the Act, which

states that

the decision ofthe

County Board must be in writing “specifying the reasons for the decision.”

415

ILCS

5/39.2(e).

38

703’72381v1

830017

---

An

examination of the record in this instance shows that the County Board properly announced

the reasons for its determination.

It has been held that so long as a decision is in writing and a record has been made ofthe

decision, neither

a

detailed

statement finding

specific

facts, nor

a

detailed

explanation of the

relationship betweenthe facts, the criteria, and the conclusions is necessary.

E & E Hauling,

Inc.

v.

PCB,

451

N.E.2d

555

(2d Dist.

1983),

affd

107 Ill.2d 33,

481

N.E.2d 664

(1985);

Clutts v.

Beasley,

541 N.E.2d 844 (5th Dist.

1989);

Sierra Club v.

City of WoodRiver,

1995

WL 599852

(Oct.

1995).

The decision can be framed in the language set out in the statute.

See

id.,

E & E Hauling

defined what was required under

Section

39.2(e).

The court held that

“nothing

in the statute

required a

detailed examination

of each bit

of evidence or a

thorough

going exposition of the County Board’s mental processes.”

E & E Hauling,

451

N.E.2d at

577.

All that

is

required of a

County Board is to

“indicate which of the criteria, in its

view, have

or

have not been met,

and this will be

sufficient if the record supports these conclusions so that an

adequate review ofthe County Board’s decision can be

made.”

Id.

at 578.

Here, the Resolution

clearly established what criteria the Board

determined had and had not been met.

Therefore, the

County Board decision is sufficient under Section 39.2(e).

In

Clutts,

the court

examined a county

board’s

written decision, which

did

not

include

specific

findings

of fact, and

determined that

it was adequate under

both

the provisions of the

statute

and under

the prior holding of

E &

E Hauling.

Clutts,

541

N.E.2d at

845.

The

Clutts

court went on to state the criteria set forth are the factual as well as the ultimate findings made by

a county board.

Id.

According

to the court, the purpose ofthe criteria is to impose standards,

so

a decision is

made with

some

degree of guidance

and

consistency, rather than arbitrarily or by

whim.

Id.

In

Sierra Club,

the Illinois Pollution Control Board found that the general language in

39

70372381v1 830017

---

a city’s resolution denying an application

stating “all applicable requirements of Section 39.2 and

the Siting Ordinance have beenmet” was sufficient.

Sierra Club,

at p. 9.

The

Resolution

adopted by

the

McHenry

County

Board

states that

the

County

Board

reviewed “the Application, all expert testimony, all lay testimony, all

exhibits, the hearing record

as

a

whole,

all

public

comments,

the proposed Findings

of Fact

and

Conclusions of Law, the

record

of the

proceeding

as

a

whole,

and

all

relevant

and

applicable

factors

and

matters.”

(Resolution

No.

R-200305-12-l04;

See

Exhibit

A

contained in

Lowe’s

Petition

for Hearing).

The

resolution

goes

on

to

address

each individual

requirement under

Section

39.2,

and

each

criterion contains a yes/no vote tally.

Id.

A voluminous record ofthe siting application hearings

exists

as

the

hearing

itself lasted

13

days,

during

which

thousands

of pages

of exhibits

were

offered.

Under

existing

Illinois

and

PCB

caselaw,

it

is

clear

that

the

record

supports

the

determination and

Resolution of the McHenry County Board,

and Petitioner’s request to reverse

the determination ofthe Board for failing to set forth its reasons for its determination should fail.

Furthermore, an

examination of the

record

shows

that

the County

Board voted on

and

discussed each and

every issue under

the

siting

criteria prior

to

denying the

application.

The

Regional

Pollution

Control Facility Committee transcript

shows that

any

concerns or questions

were raised and comments were made for each criterion included in Section 39.2.

Board

Member

Klasen

initially

raised concerns

over

siting

criterion

(i),

involving

the

primary service area of the facility.

Klasen was concerned that the primary service area included

counties other than McHenry County.

(C.07237,

p.

10-13).

Klasen

also

raised the issue ofthe

facility being located next to a sensitive natural resource, and therefore believed that the facility

was not

so

designed, located

and proposed to

be

operated

to

protect

public

health,

safety,

and

welfare

as

required

by

criterion

(ii).

Klasen

specifically

stated

that

he

was

not

“sure

that

40

70372381v1 830017

---

something

adjoining

and

abutting

a

sensitive

area like this

should be

approved.”

(C.07237, p.

14-16).

Kiasen also raised concerns relating to criterion (iii), and expressed extreme concern that

an owner of a home would sell it for a negative profit margin, after only owning the house for 66

months.

(C.07237, p.

17).

Specifically,

Kiasen was concerned that the majority ofhomes in the

comparison study

offered into evidence

at the

hearing lost money.

(C.07237,

p.

18).

Klasen

concluded that he could not find compliance with criterion (iii) had been demonstrated in light of

his observations and conclusions.

(C.07237, p.

18).

Criterion

(v), which

is

directed to

minimizing

the danger to

the

surrounding area,

was

also addressed,

and major concerns were raised about

spills entering

local waters.

(C.07237, p.

20-22).

Again, the issue ofthe transfer station being located nextto an environmentally sensitive

area

was

discussed.

(C.07237,

p.

22).

The

traffic

issue,

criteria

(vi),

was

addressed

and

approved

subject to

certain

conditions,

each of which

was

discussed prior

to their

adoption.

(C.07237, p.

23-27).

Mr. Klasen stated that he could not support criterion (vi)

where no finding

for improvements according

to

IDOT’s plan were made

for “probably the

worst intersection in

this

County.”

(C.07237, p.

26).

Criterion (viii)

was also

approved with conditions

after a brief

discussion concerning whether the record would support a determination for a host fee of $1.90

per ton.

(C.07237,

p.

28-36).

Finally, the Committee

Transcripts show a final vote of 6-0 that

the

findings

and

determinations

of the

Committee

were

based

only

upon

the

record,

and the

record in its

entirety.

(C.07237, p.

40-41).

In addition, in denying the siting application, the full

County

Board voted 21-0 that

the Board

based

its

decision

solely upon

the record.

(County

Board Meeting Tr. p.

50-53).

These transcripts

clearly show that the County

Board examined and deliberated each of

the

criteria set

forth

in

Section

39.2

in

making

its

determination

to

deny

Petitioner’s

siting

41

70372381v1

830017

---

application.

Both the Committee and the full County Board made their decisions based upon the

record.

There

is

ample

evidence

in

the

record

to

support

the

McHemy

County

Board’s

determination and, therefore,

Petitioner’s

request to reverse the County Board’s decision should

fail.

H.

THE

MCHENRY

COUNTY

BOARD

PROPERLY

SET

FORTH

THE

REASONS

FOR

ITS

DECISION

ACCORDING

TO

THE

MCHENRY

COUNTY

REGIONAL

POLLUTION

CONTROL

FACILITY

SITING

ORDINANCE.

Paragraph 4(e) of the petition alleges that the Board

did not

comply

with the McHenry

County Regional

Pollution

Control

Facility

Siting

Ordinance as the Board

did

not

specify the

reasons for its decision in

denying the siting application.

A review ofthe Ordinance shows

that

the Board did not violate the Ordinance and adequately set forth reasons for its determination.

As a preliminary matter, case law shows that the Illinois Pollution Control Board will not

review procedures employed in a siting proceeding to

determine if they are in compliance with

a

local

siting

ordinance,

nor

will

it

compel

performance

of a

local

ordinance.

See

Residents

Against a Polluted Environment,

PCB

96-243,

slip

op.

at

6

(Sept.

19,

1996);

Smith

v.

City of

Champaign,

PCB

92-55,

slip op. at 3

(Aug.

13, 1992).

As such, Petitioner’s request that the PCB

examine the County Board’s

decision to

determine if it complies

with the provisions of a

local

siting ordinance

is inappropriate.

Nevertheless,

even

if

the

Pollution

Control

Board

does

examine the

County

Board’s

decision for compliance with the

Ordinance, it

is

clear

that the

County

Board’s decision

is

in

accordance

with

the

McHenry

County

siting

ordinance.

The

McHenry

County

local

siting

ordinance

only

provides

that

the decision

shall

be

in

writing with

such

specificity as to

be

in

conformity with Section 39.2 ofthe Act.

(McHenry County Regional Pollution Control Facility

42

70372381v1 830017

---

Siting Ordinance No.

0-9412-1200-88;

attached to

Lowe’s Petition for Hearing as

Exhibit

B).

The ordinance states, in relevant part, as follows:

•

Section

7.

(b)

The County Board shall make a decision based on the record from

the public

hearing and

review of the

recommendation of the

Committee.

The

decision of the County Board shall be

in

writing, spec~j5~’ing

the reasons for

the

decision,

such reasons

to

be

in

conformity with Section

39.2(a) of the Act (415

ILCS 5/39.2(a)).

In granting approval for

a site, the County Board

may impose

such conditions as may be reasonable

and

necessary to

accomplish the purposes

ofthe Act and

as are not inconsistent with regulations promulgated by the Illinois

Pollution Control Board.

Such decision shall be available for public inspection at

the office of the County

Board

and

may be

copied upon payment

of the actual

cost of reproduction.

If there

is no

final action by the County Board within one

hundred

eighty

(180)

days

after the

filing

of the request

for

site approval,

the

applicant may deem the request approved.

(c)

Whether

the

County

Board

approves

or

disapproves

of the

proposed

site

location, a

Resolution shall be passed to

that effect,

stating the reason(s)

for the

decision.

(Ordinance No. 0-9412-1200-88, emphasis added).

As

discussed above,

Section

39.2(a) of the Act

requires that

the reasons

for a decision

need not be set forth in specific detail, but rather a decision setting forth the vote for each criteria

in

Section

39.2

is

sufficient.

See

discussion

supra.

The

McHenry

County

ordinance

only

requires the Board’s decision to

comply with

Section 39.2

and be

in writing.

(McHenry County

Ordinance,

Section

7(b)).

This

decision,

according

to

section

7(c)

of the

McHenry

County

ordinance,

is to be set

forth in a Resolution.

The

McHenry

County

Board

issued

Resolution

No.

R-200305-12-104

concerning

the

siting

application.

(See

Resolution

No.

R-200305-12-104).

The

Resolution

issued

by

the

County

Board

in

this

matter

is

obviously

in

writing,

and

complies

with

the

requirements

of

Section 39.2, as discussed previously.

The Resolution denying siting approval contains a yes/no

vote

count for each criterion.

Id.

Therefore,

Petitioner’s

argument that

the

McHenry County

43

70372381v1

830017

---

Board’s

determination

is

contrary

to

the

local

McHenry

ordinance

is

inappropriate,

and

its

petition to

reversethe McHenry County Board’s determination should fail.

III.

CONCLUSION

For the reasons set forth above, the McHenry County Board, respectfully requests that the

Illinois

Pollution

Control Board uphold the

County Board’s decision to

deny

siting approval to

Lowe Transfer, Inc.

Dated:

August 22, 2003

Respectfully Submitted,

RESPONDENT COUNTY BOARD

OF MCHENRY COUNTY, ILLINOIS

•

~

4

2~j

One ofits Attorneys

Charles F. Helsten

Heather K. Lloyd

Timothy J. Leake

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box

1389

Rockford, IL 61105-1389

815-490-4900

This Document is Printed on Recycled Paper

44

70372381v1

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