rF\rc.

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

‘1

Z003

LOWE TRANSFER,

rNC.

and

)

5TP3E

OF lWt40tSd

MARSHALL

LOWE,

)

po1tutI0’~contro)

Co-Petitioners,

)

PCB No.

03-221

)

(Pollution Control Board

COUNTY BOARD OF MCHENRY

)

Siting Appeal)

COUNTY, ILLINOIS,

)

Respondent.

)

NOTICE OF FILING

TO:

See Attached Certificate ofService

Please take notice that on August 25, 2003, we filed with the Illinois Pollution Control

Board

an original and

nine copies of this Notice of Filing and Brief on Behalf of Amicus Curiae

Village ofCary,

copies of which are attached and hereby served upon you.

Dated:

August 25, 2003

VILLAGE OF CARY

By:

L4~4

One of it

Attorneys

Percy L.

Angelo,

Esq.

Patricia F. Sharkey, Esq.

Kevin 0. Desharnais, Esq.

MAYER, BROWN, ROWE &

MAW LLP

190 S. LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

THIS DOCUMENT HAS

BEEN PRINTED

ON RECYCLED PAPER

CERTIFICATE OF SERVICE

Percy

Angelo, an attorney, hereby certifies that a copy ofthe foregoing Notice of

Filing and

Brief on Behalf of Amicus Curiae Village ofCary was served on the persons listed

below by depositing same for UPS

Next Day Air delivery,

or by personal delivery in the case of

Hearing Officer Halloran, on this

25th day of August 2003.

David W.

McArdle

Charles F. Helsten

Zukowski, Rogers, Flood

& MeArdle

Hinshaw and Culbertson

50 Virginia Street

100 Park Avenue

Crystal

Lake, IL

60014

Rockford, IL

61105-1389

Hearing Officer

Bradley P. Halloran

Illinois Pollution Control

Board

James R.

Thompson Center

Suite

11-500

100 West Randolph Street

Chicago, IL 60601

Pta.

Angelo

Percy

L. Angelo

Attorney for Village ofCary

Mayer, Brown, Rowe & Maw LLP

190 South LaSalle Street

Chicago, Illinois

60603

312-782-0600

THIS DOCUMENT

HAS BEEN

PRINTED

ON RECYCLED PAPER

R~C~1VEO

BEFORE

THE ILLINOIS POLLUTION

CONTROL BOARD

CL!RKS

OFFIC?

AUG

62003

LOWE

TRANSFER. INC. and

MARSHALL LOWE.

)

STATE OF IWNOIS

Pollution

Control Board

Co-Petitioners,

)

PCB 03-221

vs.

)

(Pollution Control Board

)

Siting Appeal)

COUNTY BOARD OF MCHENRY

COUNTY. ILLINOIS,

)

Respondent.

)

Briefon

Behalf of Amicus Curiae Village of Can’

The

Village of Cary is adjacent to the proposed Lowe Transfer Station and participated

actively as a party objector before the McHenry County

Siting Committee.

Indeed, during the

eleven days of hearing Cary and the other objectors presented six expert witnesses in opposition

to the proposed siting.

Cary appreciates the opportunity

to participate as ainicus curiae

before

the Pollution

Control Board (“PCB” or

“Board”),

and provided a statement through its Acting

Mayor Steve

Lamal

in the Board’s hearing in this case.

Cary

strongly supports the denial of

siting

by the McHenry County Board.

Its discussion

below relies entirely on the record made

before

the County as to the three criteria which the County found had not

been met, and although

the standard for review is whether the County’s decision is against the manifest weight of the

evidence,

fact,

based on the assembled record, the County could not have reached any result

other than

to deny siting.

The Village ofCary brief amicus curiae will address the Lowe claims that the County’s

decision below is against the manifest weight of the evidence, that the record fails to

show any

basis

for the County decision and that the County

improperly considered the experience of the

Applicant.

Paragraphs 4(a),

For the additional

Lowe claims

regarding the host

fee and the compliance of the County decision with County rules, Paragraph

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4(a) and

(e) of the Lowe Petition. Cary relies on

and supports the brief submitted on behalf of

McHenry County.

The

following is

a summary of the factual

background.

Because ofthe extensiveness of

the record. the

facts will be

discussed more fully, with citations,

in connection with

the criteria to

which

they apply in the body ofthis brief

As the Board

will

note, the record

in this matter is voluminous, eleven

days ofhearing,

almost 4000 pages of transcript, over 100 exhibits.

The Applicants, Mr. Marshall Lowe and

Lowe Transport, Inc.

(“Mr. Lowe”

“Lowe”) presented several experts.

Objectors included

numerous citizens who participated

actively by testimony and by questioning witnesses, the

Plote family which owns the large property next door to the proposed transfer station,

the

residents of Bright Oaks,

an existing 30 year

old subdivision within the Village of Cary.

only

1346 feet from the proposed site,

and the Village of Cary which has been working to bring the

Plote property into

the village as a residential development for over a decade and

which has

numerous other development and

citizen interests which would

be adversely affected by the site.

Cary and

Bright Oaks each presented expert witnesses in

various fields in opposition to the site.

In all some seven experts, in fields

such as hydrogeology. stormwater management. transfer

station design and

operation, land planning and real estate valuation testified against the

site.

The County Board Committee was extraordinarily diligent in hearing the evidence,

reviewing the exhibits and questioning the witnesses.

In many respects the facts described

below, facts which support, indeed mandate, the decision to reject the site for failure to comply

with criteria

3 and

of the Environmental

Protection Act (the “Act”), were elicited

questioning by the County Committee members, who also, of course, are members of the County

Board.

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Briefly the evidence showed that the site is extremely small,

2.46 acres, and is located in

an area of great sensitivity,

without setbacks or effective buffers. To the west and to

the north the

site and its long entrance road abut the eastern and

southern boundary of the McHenry County

Conservation District (“MCCD”) Hollows Conservation Area, a former mining area which

despite its continued

1-2 zoning has been fully reclaimed and is now a very successful

conservation and recreation area.

The site’s proximity to

the Hollows troubled several

Committee Members and

led to

resolution by the MCCD Trustees opposing the site.

To the east the site abuts the Plote property, a former mined

area now undergoing

reclamation for primarily residential use.

The Plote property has been planned for residential use

in the Cary Comprehensive Plan since 1982,

and residential development discussions have been

going on between Cary and the Plote family

since at least

1986.

Mr.

Lowe was aware of these

discussions, indeed he testified that he bought the site

in April 2002 and

moved forward with

his

application in an expedited manner to try to get his facility sited before the Plote development

could be

established.

To the east ofthe Plote property,

1346 feet from the site, is the existing 422 unit Bright

Oaks subdivision.

Bright Oaks

is stable and

well-maintained, with a high proportion of families

with children and

senior citizens.

can be discerned from their role in this

proceeding, the

residents of Bright Oaks love their community.

In addition to these sensitive surrounding uses,

the groundwater under the site

also

especially vulnerable.

The testimony is undisputed that the shallow site groundwater is very

fast

moving,

1 20

feet per day.

This shallow groundwater flows immediately

north to Lake

Plote on the Plote property, then to

Lake Atwood on the

MCCD’s Hollows property, then to

wetlands defined as “high quality,”

“irreplaceable.” and “unmitigatable”

by the United States

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EPA, and

by surface flow to

Lake Killarney

in the

Lake Killarney subdivision,

This

groundwater and these uses are at risk because the

site will use

an infiltration chamber to

infiltrate stormwater, including contaminated

stormwater because there are no cheek valves or

otherprotections

to stop contaminant spills or leaks,

directly into the groundwater.

This

infiltration chamber was selected rather than the more common stormwater detention pond even

though it has never been used before by Mr.

Lowe

or his consultants.

The site itself is also not

completely paved or curbed,

using instead gravel and

“gently sloping vegetative

waterways,” to

carry stormwater and its contaminants.

And the testimony is clear

that stormwater at such a site

can have contaminants from spills and leaks.

The testimony is also undisputed that

such sites have odors, noise,

litter, diesel emissions

and dust which, because of the lack of buffer area, will carry offsite to the Hollows conservation

area, the Plote property and to Bright Oaks.

The testimony is further undisputed, in

fact it rests on Mr.

Lowe’s own study,

that at the

only other site

Illinois where a transfer station is so close to a residential area, the Princeton

Village subdivision in Northfieid Township, there have been unusual

negative, or barely

positive, property value appreciation rates (less than

1-2),

much

less than

the norm of

5-6,

suggesting the transfer station has had a serious impact on those values.

This is consistent with

testimony, even by Lowe’s witnesses, that they wouldn’t

normally put

a transfer station next to

residential area because they are incompatible.

Other testimony by objectors showed that the

proposed site is incompatible with its surroundings, including the Hollows, Bright Oaks,

and the

proposed Plote development as well as with

the longstanding Cary Comprehensive Plan.

Finally, the design and operating

plans for the facility show that larger trucks

may not be

able to turn, there

is no sprinkler system or water for firefighting but only

burning pit,

and,

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noted

above, there is

way to capture

spills or leaks before they

go into

the infiltration chamber

and then into the groundwater.

This site is to

be owned and

operated by Mr.

Lowe, who says he has no experience, who

hasn’t read his

application, testified he felt no obligation to consider the costs to his neighbors

and apparently has little sense of responsibility to understand the environmental

laws and

regulations which do, and will, apply

to him.

As described more

fully below,

the decision ofthe County Board to deny siting on

criteria 2,

and

is not against the manifest weight ofthe evidence and is indeed inescapable in

light of the record as a whole.

Standard of Review and Expert Opinions

Standard ofReview

A decision of a local siting authority with respect to

an applicant’s compliance with the

statutory siting criteria will not

be disturbed unless the decision is contrary to the manifest

weight ofthe evidence.

Land and

Lakes,

v. Illinois Pollution Control

Board,

319 Ill.App.3d 41,

53,

743

N.E.2d

188,

197 (3d Dist. 2000), citing Concerned Adjoining Owners v.

Pollution

Control

Board, 288

IILApp.3d

565,

680 NE2d 810

(5th

Dist.

1997).

decision is against the

manifest weight ofthe evidence only if the opposite conclusion

is clearly evident, plain or

indisputable.

Land and Lakes, 319

Ill.App.3d at 53,

743 N.E.2d at

197; Turlek v.

Pollution

Control

Board, 274 Ill.App.3d 244,

653 N.E.2d

1288

(1995); Tate v. Illinois

Pollution Control

Board,

188

Ill.App.3d 994,

1022,

544 N.E.2d 1176,

1195

(4th Dist.

1989).

The broad delegation

of adjudicative power to the county board clearly reflects a legislative understanding that the

county board hearing, which

presents the only opportunity for public comment on the proposed

site,

is the most

critical stage of the pollution

control facility

site approval process. Medical

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~j~ppsalServicesJnc..

1995

WL 283830.

*6.

see also Medical Disposal

Services, Inc., 286 Ill.

App.3d 568. 677 N.E.2d 432 (“We agree that the

local

site approval process is the most critical

stage of the pollution

control facility

approval process.”).

The

Board is not in a position to

reweigh

the evidence; it is for the local siting authority to determine the credibility ofwitnesses,

resolve conflicts in

the evidence, and to

weigh the evidence presented.

See Fairview Area

Citizens

Taskforce v. Pollution Control Board,

198

Ill.App.3d

541,

555

N.E.2d 1178; Land and

Lakes,

319

lll.App.3d at 53,

743 N.E.2d at

197, Concerned Adjoining Owners,

288

I1l.App3d at

565, 680

N .E.2d 810.

All ofthe statutory criteria must be

satisfied before siting can be granted,

and the manifest weight ofthe evidence standard applies to each criterion

on review.

Concerned

Adjoining Owners. 288 Ill. App.

565,

576,

680 N.E~2d

810,

818.

While Mr.

Lowe points to

Industrial Fuels

Resources

v Illinois Pollution

Contrgi

Board, 227

lllApp.3d 533,

592 N.E.2d 148

(1st

Dist.

1992), to support his contention

that the

County’s decision was against the manifest weight of the evidence,

this case is clearly

inapposite.

In Industrial Fuels, the record contained unrebutted testimony

from experts with impressive

credentials that a proposed waste-to-energy facility was “state ofthe

art” and exceeded all

applicable standards for environmental protection.

Id., 227 Ill.App.3d

549-550,

592 N.E.2d at

159.

The court concluded,

“This is not a case

in which there is

a conflict

in the evidence on any

material issue of fact.”

Id.

In contrast, the record here is replete

with testimony from

highly

credentialed experts

who identified serious flaws

in the location

and in the proposed design and

operation of the facility, and who demonstrated that the proposed facility presents significant

risks to

the environment and will have unacceptable impacts on

surrounding land uses.

The

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County,

as the siting authority,

had ample basis to credit the testimony of the objector’s experts

over the testimony of Lowe’s experts in determining that the statutory criteria were not satisfied.1

Lowe’s attempt to rely on Clutts v.

Beasley,

185

I1l.App.3d 543,

541

N.E.2d 844 (5th

Dist.

1989)

is similarly misguided.

In Clutts, a local siting authority granted siting approval for a

proposed landfill, and the decision was affirmed by

the Board.

The record demonstrated that the

landfill was designed by

an experienced design engineer in

accordance with the standards for

non-hazardous waste disposal set by

the IEPA. Id.,

185 Ill.App.3d

546-547, 541

N.E.2d 846.

The challenger asserted merely that there was no guarantee the facility would not cause

contamination, and that better sites

were available.

Id.,

185

Ill.App.3d

547,

541

N~E.2d

846.

the present case, there are no IEPA standards governing the design of waste transfer stations.

The County therefore could

not look to whether compliance with such standards

had been

demonstrated, but was required to consider the conflicting expert testimony in the record on the

site design and

location and compatibility with the surrounding uses,

The County could well

have credited the testimony ofthe objectors’ well-credentialed experts regarding the risks posed

by the proposed facility and

its potential impact on surrounding uses.

set forth in detail

below, the record clearly shows a basis for the County’s decision to

deny siting, indeed in several

crucial areas denial

was required by undisputed facts

in the record.

Of course,

even if the evidence in support of the Application were strong,

and

not, where conflicting

evidence exists,

the Board

not free

reverse merely

because the tower tribunal credits

one group of witnesses and

does not credit the other.

Fairview

Area Citizens Taskforce v. Illinois Pollution Control

Board,

198

III.

App.3d

541.

550-551, 555 N E2d

1173,

1184 (3d

Dist.

1990).

Merely because the local government could have drawn different

inferences and conclusions

from conflicting testimony

not a basis for the Board to reverse

the local government’s

findings.

File

D & L Landfill. Inc., PCB

90-94 (August 30.

1990),

ajf’d,

219111.

App.3d 897, 579 N.E.2d

1228

(5th

INst.

1991).

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The Experts Presented by Objectors Were Well Qualified, Credible,

And On

Many Dispositive Points Their Opinions Were Unchallenged

In his main brief Mr. Lowe includes a discussion

of the experts

who testified, a

discussion which is very one-sided.

According to Mr.

Lowe his experts have the experience in

siting and

testifying in siting cases; the experts ofobjectors do not,

indeed their credentials are,

forthe most

part, not even described.

See e.g.

Lowe Br.

8 et seq.

This, of course,

is not the

whole story.

First,

objectors’ experts are highly qualified.

Larry

Thomas, the Village ofCary

groundwater expert from Baxter &

Woodman, is a registered professional engineer with

bachelor’s and

master’s degrees in civil

engineering.

He has been working in the field of

hydrogeology in the area since

1980,

in many cases working for area municipalities in

locating

and protecting their groundwater resources.

He has been honored for his work by the American

Water Works Association and is past Illinois chair ofthat organization.

He is also

diplomate at

the American

Academy of Environmental

Engineers.

He works with McHenry County

and with

the Northeastern Illinois Planning Commission

on groundwater

management planning.

He did a

Groundwater Protection Needs Assessment for Cary in

1992

at which time he modeled

groundwater flows

in the area.

Tr.

6-12, (1(1-3-4-03), C0188.2

It is simply incorrect for

Mr. Lowe to

claim that his witness, Mr. Dorgan who was presented only in

partial rebuttal to Mr.

Thomas. was the only expert

in hydrogeology who testified.

Mr.

Thomas’ credentials are stellar

and centrally related to the

issues in this

case.3

Transcript references before the County Committee are cited Tr.

—,

with the hearing date and transcript

volume on that date in parentheses.

This information

followed

by the designation

for that volume found

in the

Index of Record.

References

to the transcript of the PCB hearing held August

14, 2003, will

be PCH Tr.

Mr. Lowe’s brief states cryptically that Mr.

Thomas’

references to

hazardous waste

were in error.

Lowe

Hr.

10.

This

not correct.

Mr. Thomas

referred

to the County data in Lowe’s

application

as to the amount of

hazardous waste

in the County waste stream which would pass through the transfer station.

While

much of this

material

may

be household

hazardous waste, such as paint thinner, cleaning

products or nail polish remover,

and

thus not RCRA

regulated hazardous waste, it nevertheless

hazardous waste with the

same chemical properties as

regulated hazardous waste

and poses the same threat to groundwater if spilled or leaked.

The possibility that

(cont’d)

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Mr.

Kevin Sutherland, who testified for objectors regarding the design of the stormwater

system at the

Lowe

site, has a B.S.

in civil and environmental engineering and a masters in

environmental engineering from the University of Illinois.

He is a registered professional

engineer in Illinois

and works for Baxter &

Woodman as coordinator of the water

resources

group where his work involves community stormwater planning, and where he

frequently works

with local

stormwater requirements.

Tr.

63-66

(111-3-13-03), C002l8; Can’

Ex. 44, C00475.

Mr. Andrew Nickodem of Earth Tech has a B.S, degree in civil engineering and is a

registered professional

engineer who

has fifteen years experience in the design,

operation,

construction, maintenance, monitoring and permitting oftransfer stations, being directly

involved with the design often, four in Illinois.

He has worked on many more, over 50

landfills

and transfer stations.

He is active in

several professional organization and sits on the Wisconsin

DNR’s Liaison Committee

for Solid Waste Rules.

Most significantly he has also worked as an

engineer for three companies owning and

operating transfer stations, the only

expert to have that

operational experience, giving his opinions about leaks and spills, odors. onsite

truck movements

and transfer station cleanup practices great weight.

Tr.

3-6,

17-18 (IV-3-12-03), C002l4~Cary

Ex.

36, C00458-462.

Mr. Drew Petterson, who testified for Cary as to the

site’s compatibility with the

surrounding area, is an urban plaimer with Thompson, Dyke and Associates where he

is Senior

Vice President.

He has an

undergraduate degree from Northwestern and a law degree from

Duke.

a member ofthe American Institute ofCertified Planners, a position achieved

examination.

He has served on the Evanston Planning and Zoning Commissions and was project

(...

cont’d)

Mr. Lowe does not have theexperience

to appreciate this risk is

one of the issues

the County was entitled to

consider.

See Section

V below.

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manager for the development ofCarys

1992 comprehensive plan.

He has worked on land

planning for a number ofmunicipalities.

Tr.

57-60 (IV-3- 11-03), C00207; Cary Ex.

28.

C00423-

425.

He quite appropriately relied on the expertise of experts such as Mr. Nickodem as to the

operations oftransfer stations

and their effects, such as odor.

This

is not only something an

expert can do;

in fact the existence ofoffsite odors

from transfer stations was undisputed.

Mr. John

Whitney testified as a real estate appraisal and valuation expert on behalf of

Bright Oaks.

He has been practicing in that field for 31

years and has been a

member of the

Appraisal Institute, or MAI, for 20 years.

He has served as a review appraiser for the FDIC

and

currently

serves in that capacity for the Lake County

Board of Review.

Tr.

24-26 (V-3-13-03),

C00220; Bright Oaks

Ex. 2, C01283-1285.

The

objectors’ experts were eminently

qualified.

These experts are practicing professionals, ~iotprofessional testifying

experts.

Far from

liability, the County Board members were entitled

to give their views added weight as a result.

Mr.

Lowe’s experts, Messrs. Gordon, Zinner and Dorgan, testify

for, not against, transfer

stations.

Mr. Harrison agreed that, while he had

never previously studied a waste transfer

station,

his many years of testifying he almost always testified

in favor of the compatibility of

his client’s use with the area.

Tr.

100 (111-3-6-03), C00193; Tr.

51-52 (IV-3-6-03), C00194.

The

County

was entitled

consider this orientation where there was a conflict in the evidence.

The County

was also entitled

to consider inconsistencies in the experts’

testimony.

Mr.

Lowe

makes much of Mr.

Gordon’s role

in teaching a course on transfer stations and

preparing certain manuals.

At hearing Mr.

Lowe’s attorney objected to

consideration of those

same manuals.

See e.g.

Tr.

5-7 (1-3-3-03). C00181.

Mr. Lowe and his witness Mr. Gordon

were

less happy

when it was pointed out that the manuals are inconsistent with

Mr. Gordon’s

design

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and operating plan for the

Lowe station.

See e.g.

Tr. 56-57. 69-70, 72-76 (1-3-3-03). COOl 81;

App.

Ex.

pp.

7-24.

10-21. C00238; App.

Ex.

10, pp.

36-37. C00240 (manual

recommendations

for high daily volumes of washwater for cleanliness, vector management

and regulatory

compliance, rather than washing once per week as proposed by Mr. Gordon); Tr. 45-46,

(11-3-3-03), COO 182;

App. Ex.

10, p.43, C00240 (manual recommendation to orient transfer

building

with its closed

site to the prevailing winds to control litter and

odors.

Mr. Gordon did

just the opposite, leaving the usually open side

into which the collection trucks pull

immediately

facing the McHenry County Conservation District Hollows area,

to the west); Tr.

5-8 (11-3-3-03),

C00181; App.

Ex.

pp.

7-10, C00238 (manual design rule of thumb would have required a

larger transfer station which would

require a sprinkler system); Tr.

38-39

(11-3-3-03),

COOl 182;

App.

Ex.

pp. 8-9, C00238 (manual

recommendation for straight and

level road segments

either side of the transfer building tunnel in contrast to

Lowe design);

Tr. 43-44 (11-3-3-03).

COOl 82. App.

Ex.

pp.

5-27, C00238 (manual recommendation for setbacks and buffer zones).

Mr.

Lowe

may argue

that

Mr. Gordon had

his reasons, or that the manuals are overly

conservative, but the County Board members were

entitled to conclude that

Mr. Gordon’s design

was not as conservative or state of the

art as he claimed, and to rely

more heavily on the contrary

opinions of objectors’ experts.

Finally, on many important points, there was

~jg

disagreement between the experts.

While Mr. Dorgan for Lowe questioned Mr. Thomas’ data about the speed of movement

to the

lower groundwater, below the

level ofthe Tiskilwa Till, and the consequent risk

to the Cary

municipal

wells (even though he

had done

no work in

the area and Mr. Thomas had).

122 one

challenged Mr. Thomas’ testimony as to the movement ofshallow

groundwater swiftly offsite to

Lake Plote,

Lake Atwood, Lake Kiliarney

and certain

“high quality” and “irreplaceable” area

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wetlands.

No one challenged Mr. Nickodem’s testimony of onsite

spills or leaks which can get

into

stormwater. though Mr. Gordon would prefer to call

them leaks.

No one questioned that the

site would have odors, litter and noise.

one questioned Mr. Nickodern’s

Auto Turn program

showing larger transfer trailers

can’t make the turns onsite.

No one questioned, indeed

Mr.

Lowe’s own data show

it, that

the only owned residential area in the

state near a transfer

station has many homes showing negative or minimal

appreciation. under

despite an area

norm of

5-6.

The County was entitled to

look at these areas of agreement and

find that, with

everything else presented, they provided strong support for denial.

A final background

matter

—

the

Lowe Petition also rests on the claim that

“the record

fails to

show

any

basis for the County

Board’s decision.”

Paragraph 4(d) of the Lowe

Petition.

The Lowe

Petition

does not explain what this means

and it

misstates

the applicable legal

standard which is

“manifest weight of the evidence.”

discussed below this claim is also

evidently

wrong.

The record

is replete

with bases for the County Board’s decision.

The Record Is Clear That the Facility Is Not Located, Designed or Proposed To

Operated So As

To Protect The

Public

Health, Safety and Welfare And This

Finding

The County

Is Not Against The Manifest Weight of the Evidence4

Criterion

2 of Section

39.2

requires that the facility be located, designed and proposed to

operated to protect the public health, safety and welfare.

Mr.

Lowe devoted almost no time to

this

issue at hearing before the Pollution Control Board other than to

argue that the proposed site

~s’as

zoned

industrial,

as if that answered every possible question about

the environmental

uitability of the site

fact, the experts presented by objectors, experts in transfer station

many

respects

the evidence supporting the

County’s

findings

on criteria

and 5

will

overlap,

e.g.

the

ture

the site will necessitate

certain elements

itt

the plan of operations and

the

plan of operations will directly

dress both criteria 2 and

To avoid

repetition,

the discussion ofcriterion

is incorporated

the discussion of

tenon

and

vice versa.

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design

and operation. groundwater and surface water, demonstrated

serious environmental

risks

posed

the

site location,

its

design, and its operating

plan.

The Proposed

Site Threatens Groundwater, Lake Plote, Lake Atwood, Lake

Killarney and

High Quality Wetlands

Because of the site’s

location near several sensitive uses and

the Lowe proposal to use

infiltration chamber to handle stormwater flows, the groundwater at this site

is especially

vulnerable.

The Village of Cary’s groundwater expert, Larry Thomas

from Baxter &

Woodman.

testified

to the groundwater concerns at

the

site, Ti.

6-59

(111-3-4-03).

COO 188; Ti.

5-12

(IV-3-4-03), C00189; Cary

Ex.

2, C00326,

expanding on some

misleadingly vague and

wholly

inadequate descriptions in the application.

See Vol.

1, 2-4, C0000I; Vol.

2, App. A,

C00002.

Without providing

a groundwater

flow map,

the

application

says

that groundwater flows from

the site

to a lake on the McHenry County Consen’ation District Hollows conservation area,

which it

fails to name.

Mr.

Thomas for the Village of Cary testified

that shallow groundwater

from the site flows

from the site

to the north and

northeast to

Lake Plote on the neighboring Plote

property, then to

Lake Atwood on the MCCD property and then to wetlands northeast of the site.

To the extent

the groundwater reaching Lake Atwood

exits as surface water,

it flows to Lake

Killarney.

All

of these sensitive

water bodies

are

in close

proximity

to the

site.

The

groundwater flow is relatively rapid, 56 to

120 feet per day.

Ti.

(1-3-3-03), COOl 81.

This

testimony was not disputed.

See.

e.g. Tr.

87 (1-3-4-03),

COO 186.

Unfortunately, the uses impacted by the site groundwater are highly sensitive.

The

significance ofLakes

Plote, Atwood

and Killamey

are self-evident and

it is irresponsible

for the

application

not to discuss

them.

(Cary

Ex. 5, C00334 &

C00334A, attached hereto as

Appendix A,

is a site aerial

showing the location ofthe site

and the surrounding uses, including

the lakes

and

wetlands).

Especially

serious, however, is

the failure

to discuss the impacted

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tlands.

Mr.

Lowe’s consultants testified there were no

wetlands onsite,

but did not address

fsite impacted wetlands that would be impacted.

Tr.

138

(1-3-1-03).

COO 178.

The

Lowe

pplication,

however, includes a letter from the U.S.

Fish &

Wildlife Service noting the presence

“high quality,”

“unmitigatable”

and

“irreplaceable” wetlands designated L-72,

in the site

~inity. Vol.

1. 2-21. C0000 1.

see Appendix

B, attached hereto.5

Unaccountably, Lowe’s

pplication did

not provide the locations of those wetlands, Tr.

32-34 (1-3-3-03), COOl 81.

so the

ilage of Cary obtained

and provided the applicable map for the record.

The mapped wetlands,

signated L-72, are immediately north and east of the site, directly downgradient of the subject

ite

and directly at risk from

site groundwater

and other site activities.

Cary Ex.

14, C00394.

tie County record

fully supports

the conclusion, indeed the record demands

it, that

the site

ses an immediate

threat to groundwater

and surface

waters, including irreplaceable wetlands.

vhich the Applicant had

sought to obscure

by leaving his application

incomplete.

Mr. Thomas’

estimony concerning

shallow site groundwater was undisputed, and,

indeed, Mr.

Lowe barely

ches on these issues

his main brief.

The failure to address these issues in the application

‘kes serious concerns about the credibility ofthe consultants who prepared the Lowe

plication.

Mr. Thomas also testified that groundwater in the deep aquifer, beneath the Tiskilwa Till,

‘vs toward the Village of Cary municipal

wells.

He explained that experience

in the area, as

The standard Fish &

Wildlife Service

Endangered Species

Act

clearance

letter

identified the presence

rice of endangered

species.

It specifically

cautioned that

it did

provide clearance with regard to possible

ict on

these wetlands due to contaminated groundwater flows.

With

regard

to wetland L-72

the

letter said:

ND site #L

72 is

high quality habitat

wetland which

is considered

irreplaceable”

and unmitigatable based on

L:act that the complex biological

systems and functions that

this

site supports cannot

be successfully recreated

in a reasonable time frame

using existing restoration or creation

methods,

This site is designated a MeFlenry

my Natural Area Inventory.

addition, this ADID site exhibits high

water quality values for

eline/sireambank stabilization and stormwater storage.”

The

letter,

from the

Application,

is attached hereto as

~ndixB.

Mr. Nickodem pointed out, even without contamination you

can impact

a wetland just

by changing

ow to

it.

Clearly the

wetlands concerns have not been addressed in the

Lowe application.

Tn.

19-20

.l203),

C002)4.

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close as neighboring Fox

River Grove, shows that groundwater contamination (in that case

solvents from

plating operation) can flow through

this till layer. in a period of a few months.

Tr.

22-23 (IV-3-4-03). COOl 89.

Other data provided by the Village of

Cary

also showed that

tritium testing ofthe area groundwater, requested by

IEPA, showed it to be

under 60 years old.

indicating recharge through the till

layer, and Illinois State

Geological Survey testing of the well

nearest the site suggests there is no till

present at all.

Other evidence demonstrated that the

supposed till

is not

continuous in the area of the site.

A well log

from the well at the nearby

ranger

station

in the adjacent

McHenry

County Conservation

District

property

showed sand

rather than clay where Lowe’s witness believed the till

should be,

demonstrating that the till

not

continuous, and not protective,

in the area of the site.

Cary Exs.

49-52,

C00770-773.

C00774-776, C00777-778, C00779-781.

Tr.

30 (IV-3-l4-03), C00224.

While the Applicant

belatedly put on a groundwater witness to

testify that the till

was protective, and that he

believed

groundwaters underneath

the till

were

100’s to

1000’s of years old, in fact his

nearest testing

support that opinion was 50 miles away, as he had done no testing at the site at all.

The

Applicant made no

borings

bedrock.

Tr.

(V-3-3-03), COOl 85.

The Lowe witness

admitted

there were areas in McHenry County where the till was absent.

Ti. 75

(lV-3-7-03), COO 199.

further agreed that without testing one could not know whether the till was absent or present at

any

location, and that the till had

not been tested at the proposed site.

Ti. 33

(IV-3-14-03),

C00224.

The Applicant’s witness knew nothing about the Fox

River Grove contamination.

Ti.

77 (IV-3-07-03),

COO 199.

Basically, while the Applicant’s expert was willing to draw broad

conclusions without site data, those conclusions themselves are unsupported,

without

any deep

soil

borings, contrary to

available data and are not

in the application.

They must be

disregarded.6

The Lowe witness. Mr.

Dorgan, testified that

had

never

heard

of groundwater contamination

problems

(cont’d)

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Most important. however, there is no disagreement about shallow groundwater

flow-,

Cary’s

witness Mr.

Thomas explained, it goes to

Lake Plote,

Lake Atwood, Lake Killarney and the

“irreplaceable” wetlands northeast of the site.

There was also

general agreement that the two downgradierit monitoring wells proposed

Mr.

Lowe would monitor only the top of the shallow

aquifer.

Tr.

38-39 (1-3-3-03). COOl 80:

Ti.

1-52 (11-3-4-03). COOIS7.

Contaminants

such as solvents and pesticides

which are heavier

than water and known as “sinkers,” would not be captured

by them.

Tr.

36-39 (1-3-3-03),

COOI8I;

Tr.

34-37 (11-3-4-03), C00187; Tr. 47

(IV-3-4-O3). C00189.7

And Mr.

Lowe’s

consultants testified

they

did not

know whether they would

in fact be monitoring for the kinds of

contaminants actually found in municipal wastes.

Tr.

41-43(1-3-3-03), COOl 81.

The wetlands map was not the only hydrogeological datamissing from the application.

To avoid providing a geologic cross-section.

Lowe’s consultants pretended

that the County

application calls only

for a facility cross-section, Tr.

21(1-3-3-03), COO 181

—

which, in

fact, is

also not provided.

Patrick Engineering,

the County’s consultant, agreed that a geologic cross-

section and groundwater data, also missing, were

important to understand groundwater impacts.

Tr.

64-67 (1-3-14-03), C00221.

In fact, documents produced

by Patrick Engineering confirmed

its concern about groundwater

at the site.

Mr.

Lowe’s consultants also testified that they knew

(...

cont’d)

transfer station

site but agreed he

was not

aware

of any

testing to find

out

about them.

Tr.

(IV-3-

14-03),

C0o224.

The Lowe witness also agreed that

it is usual

when monitoring groundwater to put in an upgradient and

downgradient well.

The Lowe application calls only for downgradient wells.

Tr.

(I V.3-07-03),

COO 199.

Despite

its prior heavy industrial use, Mr.

Lowe’s consultants

did no

analysis ofexisting

site groundwater and do

not intend

install

an upgradient monitoring well

which would

reveal if there is groundwater contamination

coming on

to the

site.

e.g. from

Mr. Lowe’s

existing business, Lowe

Enterprises.

Tr. 59 (111-3-14-03),

C00223;

Tr.

(IV-3-14-03).

C00224.

This

is a

matter

of substantial

concern given

Mr. Lowe’s lack of care

operating

Lowe

Enterprises.

discussed

Section V below.

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the County would have groundwater concerns.

Ti.

140 (1-3-1-03), C00178.

Mr.

Thomas’

testimony regarding shallow groundwater flow was not disputed.

The groundwater is at special risk at the

Lowe site because of the stormwater system

Mr. Lowe has proposed.

The stormwater infiltration system proposed for the

site is designed to

inject stormwater into the ground and the groundwater without provision for sealing off possible

contamination.

Once in the ground the water travels at a very high

rate of speed north and

northeast to Lake Plote on the Plote property and then to Lake Atwood

and the high quality,

unmitigatable

and irreplaceable wetlands on the McHenry County Conservation District

Hollows

property.

There is no question that a garbage transfer station can put

contaminants in

its stormwater

—

from spills.

from broken hydraulic lines, from

trucks dripping engine oil and from

liquids from

the

waste which is tracked

out of the tipping

floor, drips off tmcks, or is formed

when

stormwater comes in contact

with wastes on the transfer station ramps.

Ti.

29-30 (IV-3-3-O3),

C00184; Tr.

58-60 (1-3-13-03), CO0216; Tr.

14 (11-3-13-03), C00217.

Stormwater falling onto

the transfer trailers parked onsite can also pick up

contaminants which

can enter the

system.

Tr.

84-85 (1-3-3-03), C000181.

Such contact water, which is considered leachate. Tr. 48-49

(1-3-3-03), COO 181,

can

easily include hazardous

wastes.

The

County’s own figures show that

4080

lbs.

of such hazardous wastes, (.34

of the waste load of 600 tons per

day) will

pass

through the site each day.

Tr.

33-34 (11-3-4-03),

COO 187.

Using Lowes proposed infiltration

system,

any contaminated

flows would

go directly to

groundwater.8

The testimony ofCary’s expert witness,

Andrew Nickodem, an

engineer

with Earth Tech

who

designs

transfer stations and has actually

run transfer stations, confirms that contaminants,

See footnote 2. above,

with regard to any contention

by Applicant that these materials are

incorrectly

described or do

not pose a

threat

to groundwater.

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including contaminants from hazardous waste, can reach the tipping floor of the station in the

leachate from the wastes and be carried

onto the apron

trucks pulling

out.

Contaminants

can

also reach and be tracked

the transfer station

truck ramps.

Spills

and leaks from equipment

can occur anywhere on site, as when hydraulic lines leak.

Tr.12-14

(11-3-8-03), C002l0;

Tr.

9-56

(V-3-l2-O3), C00215.

Cary Ex.

37,

CO0463.

Publications prepared by

Mr.

Lowe’s own

experts recognize these possibilities, Marshall Lowe himself recognized some of them, and

the

witnesses who visited transfer

stations and the video of transfer station operations presented at

hearing confirmed them to be true.

See e.g.

Cary Exs. 26-27, CO0421-422.

Once

in the stormwater system most contaminants will

move directly to

the groundwater.

Oils and

gasoline, which are lighter than

water, may be trapped by the catch basins.

All other

contaminants heavier than water (many solvents), or dissolved in water,

will pass right through

the catch basins and into

the groundwater.

There is no capability

to valve off a

spill or to catch a

contaminant for testing before it goes to groundwater.

Tr. 82-83 (1-3-3-03),

COOl 81.

Indeed,

there

is also

no provision in the application for even cleaning the ineffective catch basins which

are provided.

Tr.

83-84 (1-3-3-03), C0018l.

Patrick Engineering, representing the County, agreed that groundwater is a concern if

surface waters are directed into groundwater without protection.

Ti.

(1-3-14-03). COO22I.

noted

that the application did not

provide for any

monitoring of stormwater before discharge.

Tr. 63

(1-3-8-03), CO0202.

suggested problems.

Tr.

78-80.

88.

As Board

Member

Klasen described it.

the data on home value appreciation in

Princeton Village was

“not pretty.”

Tr,

79-80.

Oddly,

at the PCB hearing Mr. McArdle. Tr.

28-30, criticized

Mr.

Whitney on the

grounds that he had replied to

a Committee Member’s “hypothetical”

fact scenario

saying

couldn’t answer the question without a proper study.

See

Tr.

80-81.

Mr.

McArdle claimed that

without having done such a study of a hypothetical question, Mr.

Whitney’s testimony was

completely

negated.

That’s ridiculous.

First, it is

Mr.

Lowe who must submit

an application, bears the burden ofproof, faces the

manifest

weight of

the evidence standard before the Board and must do the studies if studies are

required.

Mr.

Whitney’s testimony was that Mr. Lowe had, in fact. ~

properly studied property

value impact and he provided extensive testimony explaining why that

was so and

identifying

specific inadequacies.

That is a perfectly appropriate challenge to the sufficiency of the

application.

See

e.g. CDT Landfill Corporation v.

City of Joliet, PCB

98-60 (March 5,

1998)

1998

112497.

~8-~9,affd 303

111.

App.3d

1119, 756 N.E.2d 493

(3d

Dist.

1993)(Table).

Further, Mr.

Whitney’s answer to the Committee Member’s question was perfectly reasonable

and consistent

one

shouldn’t give property impact opinions without a proper study, and

Lowe

hadn’t done

one.

(Mr. Lowe’s own

witness

testified that if the site in fact had

odors, he

had no

idea what the effect on Bright Oaks would

be.

Tr.

75-78 (IV-3-6-03), COOl 94).

Mr. McArdles

argument proves too

much and emphasizes that the Applicant’s own record

is insufficient to

support

a favorable decision on criteria

because

he had

not provided

a valid study and the work

did provide

shows serious impacts

property values.

Mr.

MeArdle’s argument

demonstrates

that

his client

must fail.

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should be noted that Bright Oaks is

a good quality, well-maintained subdivision,

Tr.

69 (V-3-6-03),

C00195.

with

a high

proportion

of young

families

with

children and of senior

citizens.

These groups will be

unusually impacted because they are

likely to be

in the

neighborhood

during the day when the station

is operating.

Even Mr.

Lowe’s expert recognized

that

senior citizens expected Bright Oaks to

be their last home.

Tr. 69-71 (V.3-6-03),

C00195.

They have little flexibility in being able to

move and

little financial cushion

to be able to deal

with any loss.

As a matter of environmental justice, it is improper to target such

a community

for the burden of the transfer station.

At the Pollution Control

Board hearing, Mr.

Lowe’s attorney. Mr. McArdle did not refer

his client’s own studies showing the devastating effect on Princeton Village, but to two

letters

he had

solicited from local Princeton Village property owners after the County hearing began

and it

became apparent that his client’s study

actually supported

the objectors.

Without support.

each contended that property values had increased.

Neither letter writer was present at the

hearing,

let alone subject to

cross-examination.

Speaking charitably, it is possible they were

referring to the I to

average overall increase,

which is so much

less than the surrounding

area.

It is

possible they forgot about

the seven

homes which lost

value and the

which

appreciated less

than

despite

a strong market.

It is clear that as current owners their interest

is in maintaining their own values.20

In fact, the record demonstrated, and

Mr.

Lowe’s witness

admitted, offsite odors from the Northbrook transfer station.

Tr.

(IV-3-6-03). C00195.

What

is stunning.

however,

is Lowe’s decision to

abandon his

application and point instead to two

letters of untested and manifestly insufficient public

comment to support his showing on

As Board Member Kiasen noted with regard to the

letters, “I

can’t

see

a housing

development

with these

letters that

Mr. McArdle gave us from these

homeowners that

are saying how

great this is.

You think

would be

great if you wanted

get out ofthere.”

Tr.

79.

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criterion

The County’s

decision on this criterion was clearly correct, and

indeed there is no

evidence in the application or in the record to the contrary.

The Act Sets

Required Setbacks From Residential Property Which Confirm

the Propriety ofthe County Decision and Bar Establishment of the Lowe Site

Mr. Lowe has been inconsistent

about the significance of the

1000 foot

residential

setback standards

from transfer stations in Section 22.14 ofthe Act.

He has indicated that he

selected the proposed site because it

was more than

1000 feet from Bright Oaks

(and expedited

his

application to

try to move forward before the neighboring Plote property could

be zoned

residential), Tr.

89-90 (1-3-8-03), C00200. but at the same time

he has argued that the

1000 foot

setback of 22.14

is somehow not applicable in

siting.

The residential setback,

in fact, is

important in several ways.

Most directly,

Section 22.14 prevents establishment of a garbage transfer station within

1000

feet of a residence or a property zoned residential.

No such station can be

permitted.21

Equally

important, however.

Section 22.14

is important evidence of the legislature’s

understanding ofhow close is too

close to

comply with criteria 2,

and

a matter of

law,

even

for an

otherwise

great site,

less than

1000

feet would be too

close.

Similarly,

Section

2 1(w) of the Act states that

a construction

and

demolition debris site

cannot be any

closer than

1360 feet

to residences.

Such a site would not be

likely to have odors

or groundwater impacts, but it is still too

close as a matter of law.

In light ofthese legislatively established bare minimums, minimums which apply even

where the site itself has adequate buffers and

good protections for groundwater and surface water

and the like, the decision ofthe County

Committee and County Board are manifestly reasonable,

incorporation

the McHenry

County Solid

Waste Plan,

Section 22.14

renders

the

site noncompliant

with criterion

Cary

understands

that this issue

notripe

this

time but would certainly

have raised

it if the

County

had not denied siting on

the basis of criteria 2,

and

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—

even

if the Plote property were not

residential.

Reasonable County

Board members, like

reasonable legislators, could look at the site and the proximity to nearby homes

and conclude that

they arejust too close not

to have an

unreasonable

impact.

In fact, of course, the Plote property is residential which makes the circumstances even

compelling.

Mr. McArdle argued at the

PCB hearing that transfer stations must be in the

middle ofpopulated areas.

Cary is a strong supporter of transfer stations, but

nothing says that

they

have to

be in people’s backyards.

In fact. Sections 21(w),

22.14 and 39.2 and expert

testimony and common sense make it clear they should not be in

people’s back

yards.

Even

Mr. Lowe

and his

experts recognize this.

Again and

again they referred to the

mitigations”

they

had attempted to provide

to protect site neighbors or cautioned that their conclusions assumed

high quality site operations to

protect neighbors.

See e.g.

Tr.

58-59 (111-3-8-03), C00202; Tr.

(1V-3-14~03),C00224.

In the face of that, when asked whether he

felt any obligation to consider

the costs to Cary or of

his

neighbors such as the residents of Bright Oaks, Mr.

Lowe announced

“Not in

the least.”

Tr.

46-47 (11-3-8-03), C00201.

It was entirely

reasonable for the County

look at these

“mitigations” and decide that a concrete building and

building liner were not

enough

in light ofthe serious handicaps of the

site

itself, the touchstone ofcriterion 3.

The

statutory provisions demonstrate that that

decision could

not havc been against the manifest

weight of the evidence.

IV.

The Plan Of Operations ForThe Transfer

Station

J5 Not Designed To Minimize The

Danger To The Surrounding Area

From Fires,

Spills Or Other Operational

Accidents

In addition to the problems discussed in Section

II above, a significant problem with the

facility

design and plan ofoperations, one created by the very small

size of the site,

is the fact

that the larger transfertrailers

contemplated by the application, and on

which

site volume and

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truck

traffic

calculations rely, cannot maneuver around the site without hitting the buildings!

The

Village of Cary’s expert,

Mr.

Nickodem of Earth Tech. had his staff use

a widely accepted

computer model

called Auto

Turn to determine whether a 65

foot transfer trailer truck could

make the tight turn down the ramp into the transfer building and then make the tight uphill turn

coming out.

The

Auto Turn program showed it could not.

The truck would hit the building

going in and hit the inside ramp retaining wall coming out.

The program also

showed that

transfer trucks coming into the site and turning right as contemplated by the site plan would hit

the site fence on the right side of the entrance.

Ti.

45-52 (IV-3-12-03), C00214; Cary Ex. 40,

C00466-C00466A.

A copy ofthis

exhibit is also attached as Appendix G to this Brief

This

analysis was supported by the SWANA manual written by

Mr.

Lowe’s own expert which also

demonstrated that the turning radii provided were

at the limit of viability.

The manual

also

recommended straight and level road

segments into and out of the transfer station

tunnel.

App.

Ex.

8. pp.

8-9, C00238.

The

Lowe site obviously doesn’t have them.

Mr. Nickodem’s office also

ran Auto Tum to

see whether the transfer trailers could really

be parked

on the site

and brought into use as needed as assumed by the application.

It concluded

that only six could be

parked (instead of 8

or even

10 as testified by

Mr. Lowe’s consultants,

Tr.

36(11-3-3-03), COO 182, and that there would be difficulty moving them around the site unless

a smaller yard jockey were

used.

Tr.

52-56

(IV-3-12-03), C00214;

Cary Ex.

41, C00467 &

C00467A.

The problem then would be

to find a way, and a place, on

a 2.64 acre site, to

switch

the yard jockey to

an over-the-road tractor. j~

Mr.

Nickodem also identified numerous other onsite truck management problems on the

very small site.

Tr. 28-34 (IV-3-12-03),

C00214.

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Mr.

Lowe’s expert. Mr.

Gordon, responded to this problem not

checking

Mr. Nickodem’s work,

which must therefore be taken as unchallenged.

Tr.

16-17. 19-20

(111-3-14-03),

C00223.22

Instead, Mr.

Gordon said

he had used a handheld template to design the

site, which was less conservative than Auto Turn, and

that

in any event the site could use smaller

transfer trailers

which would be able to turn.

Mr. Gordon

did not

refute Mr. Nickodem’s

conclusions regarding trailer parking and

the need to switch

from yard jockeys to over the road

tractors.

He thought such switching was doable, Tr.

27 (111-3-14-03), C00223, even though it

involved switching at the

end of the transfer tunnel or at the scalehouse.

See

also Tr.

18-19

(111-3-13-03). C00218.

If the site uses

smaller trailers,

however, the assumptions which were

used throughout the application

and the Applicant’s testimony to calculate site capacity and

traffic

volume are no longer supported.

Over and over there was unchallenged reference to

foot transfer trailers

(55

foot trailers), very

large transfer trailers,

and the weightlvolume of

material that could be handled

in such trailers (120 cu,

yds).

See e.g.

Vol.

5-7, C00001;

Tr.

(11-3-1-03).

C00179;

Tr.

19,26 (111-3-14-03),

C00223.

Mr.

Gordon’s backtracking is

inconsistent with the application and two weeks oftestimony.

(It

is also downright odd— how do

you explain

a client that trucks can’t turn around his site because you used

a template that was

not

sufficiently conservative,)

Mr. Nickodem testified that

is his standard practice to design

for

WB62s

—

foot combinations, and

indeed this

is the

only practice

that makes sense.

Tr.

(111-3-14-03),

C00223.

pointed

out

Ms.

Suzanne

Johnson, a citizen,

it simply

made

no sense for Mr. Gordon. when

had

his staff run

Auto Turn to determine what

trailers could

use

the site not

have run

for the largest trailers

mentioned in the application,

the WB-62s.

If it

worked

for those,

it would

work

for anything smaller.

Tr.

61-62

(11-3-15-03), C00227.

One is

left with the

uncomfortable conclusion

that

knew Mr. Nickodem was correct and

was not forthright about

it.

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The turning radius debacle is only one of the more stunning problems posed by the

very

small

site area.

Besides the

lack of adequate

buffer, and the deficient stormwater management

discussed above, others include the serious compromises made in

site safety in the case of fires

and spills.

The lack of storage for contact waters and

the lack of a

detention pond to

provide

water may or may not

have influenced the decision, but the record shows that the site will

have

neither a sprinkler system nor water capacity to fight fires.

Transfer stations do

have fires. Tr.

(11-3-1-03), C00179;

indeed Andy Nickodem testified on

behalfof Cary that he had recently

designed a replacement transfer station

for one which

had burned down

in Peshtigo,

Wisconsin.

Tr.

(1-3-13-03). C00216.

His current practice is always to

include sprinkler systems

and other

firefighting equipment.

Instead. Mr.

Lowe plans to resort

to a pit in which to push burning

wastes.

Fires for which

the pit can’t be used, for example because the volume of burning

material can’t be managed with

a front end loader, will

simply burn until the Fire Department

arrives and even then, because there is no onsite detention pond to furnish water, the Fire

Department will have to

pump or truck its water from

a hydrant at Three Oaks

Road and

U.S.

14.

Tr.

79 (11-3-1-03),

COO 179,

further away even than Bright Oaks.

Mr. Lowe’s consultants have

chosen to have all vehicles refueled

inside the transfer building.

In addition to fumes, Patrick

Engineering, the County’s consultant, noted the possibility that front end

loaders scraping on the

concrete tipping floor could

create

sparks leading to

a dangerous situation.

Tr.

82 (1-3-14-03).

C002 16.

Despite this, Mr. Lowe’s consultants testified under oath that their design had

‘every

conceivable provision possible’

to manage fires.

Tr.

43(15-3-1-03), C00179.

The

fire protection issue

complicated by the fact that

the facility access road has no

bypass lanes,

and,

if collection and transfer trucks are backed up, emergency access may have to

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be through the neighboring Lowe Enterprises property.

Tr. 6(11-3-14-03), C00222.

easement

access across

this site has been provided.

Tr.

83 (11-3-1-03), C00179.

Given these issues it is very troubling that Mr.

Lowe failed to put on a fire protection

expert to justify his design,

even though he

said he would do so,

Tr. 78

(11-3-1-03). COO 179. and

despite his testifying consultants’ claims that they were not responsible for fire control issues and

did

not know what had

been discussed with fire authorities.

Tr. 7-10 (11-3-3-03). COW 82.

This

a legally insufficient showing as to Criterion

while creating a substantial risk to

neighbors

such as the Plote property and the McHenry County Conservation District.

Similarly, management of spills is left unaddressed.

Mr.

Gordon, an

expert for

Mr.

Lowe,

initially ignored the fact that spills

from operations other than fueling could

occur.

Tr.

61(11-3-1-03).

C0O179.

When confronted with his own written or edited

manual referring to

such spills, he pretended

it referred to

‘leaks’

rather than “spills,”

as if that makes a difference,

even though

it uses the

term

“spills.”

Tr.

7-14 (111-3-1-03),

COO 180;

App. Ex.

10, p.

35,

C00240.

Whatever

term

Mr. Gordon prefers,

it is clear both spills and

leaks will occur.

They will

flow

into the stormdrains to

the infiltration system and then to the groundwater, without any

mechanism to halt that flow.

The

application has no discussion regarding any spill other than on

the tipping floor, Vol.

5, Att.

C0000I. and doesn’t even provide the correct

information for required immediate notification of releases.

Compare Vol.

5, Att.

I, p.

C0000I, and

40 CFR 302.6,

(notifications are required by law to National Response Center

operated by

the U.S. Coast Guard).

Indeed,

neither Mr.

Lowe’s consultants nor Mr.

Lowe were

aware of the correct notification requirements.

Tr.

15(111-3-1-03), C00l80; Tr.

18-19

(11-3-8-03).

COO2OI.

Indeed

Mr. Lowe saw no

use

in knowing such information in advance of

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the spill.

Id.

Rather than minimizing damage from

spills, the Applicant assumes there

won’t he

any—

a clear

failure to

respond to Criterion

~23

The record shows Mr.

Lowe’s failure to address basic operational concerns at the site.

including safe truck access, response to fires

and planning for spills.

In many cases,

the

problems are traceable to or exacerbated

by the small

size of the site.

For the reasons discussed

in this Section IV, as well as in Section

II above,

is clear that the County decision on

criterion

supported by the record.

Marshall

Lowe Has Neither the Experience, Nor the Environmental Compliance

Record Necessary

to Run a Transfer Station

and This

Was Properly Considered

Ruling on Criteria 2

and

Section 39.2 of the Act specifically provides that the County

Board may consider as

evidence the previous

operating history

and

past record of convictions or admissions of

violations of the Applicant (and any subsidiary or parent corporation)

in the field of solid waste

management when considering criteria (ii) and

(v).

In adopting this provision, the General

Assembly recognized

that it was important that a county board or the governing body of a

municipality

have the opportunity

to investigate and examine the past operating

history and past

record of convictions and violations of an applicant.

Medical

Disposal

Services,

Inc.

v. Illinois

Environmental Protection Agency, PCB

95-75. PCB 95-76 (consolidated) (May 4.

1995)1995

The

hearing

also

included an

ongoing,

and

evolving,

series of interpretations from

Mr.

Lowe’s

consultant

about

what would be

done if hazardous waste

was found.

Mr. Gordon insisted that suspected

hazardous wastes

could be

taken offsite immediately.

Response people

would

be hired

to take such

wastes

“home with

them.”

Tr.

(11.1-3-1-03),

C0l80.23

To emphasize his point

he reported that

had

spoken with Heritage Environmental in

Lemont which would take those wastes offsite immediately.

Tr.

42,

53-54

(11-3-4-03),

coo

$87.

When objectors

provided

evidence

that

Heritage would not, and could not, provide that service,

See

e.g.

Tr.

24-24 (V-3-12-03),

c00215,

Mr. Dorgan appeared to

say that Mr. Gordon

had misunderstood, Mr. Dorgan in fact

had

made

the phone

call, to

R3 not to Heritage, and that

would take the material offsite immediately.

Tr.

84 et

seq.

(IV-3-l4-03),

C00224.

This representation took place

the last

day of testimony and could not be

refuted

immediately,

but the

Village of Cary contacted

soon as possible thereafter and

learned

that,

again,

Mr. Lowe’s

consultant

had

overstated.

R3 cannot take suspected hazardous wastes offsite without toxicity testing which may take days.

See

C04057-7235. App. No.

14.

This is also

what the law

says and

what other transfer sites have to do

as well.

CFR

262.11

el.

seq.

See Tr.

24-27 (V-3-12-03), Co02 15.

Mr.

Lowe’s lack ofexperience, and his experts’

apparent

lack ofactual

operating experience, were evident throughout the proceedings.

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283830.

on appeal

Medical

Disposal Services, Inc.

Environmental

Protection Agency.

286 Ill. App.3d 562, 568,

677 N.E.2d 428,

432.24

Consideration of the operator’s background

also serves to prevent an entity with an imperfect history ofoperating pollution-control

facilities

from evading the local approval process by arranging to purchase the site after the seller received

local

siting approval.

286

Ill.App.3d 565, 677 N.E.2d

432.

The County’s vote specified that

had taken Mr. Lowe’s experience into account in ruling on criteria 2 and

While Mr.

Lowe appeals on the basis of the County’s consideration ofexperience with

regard to criteria

and

5, it is not clear what his reasoning is,

and the PCB hearing provided no

further elaboration except

a comment by Mr. McArdle that the law does not

say that

experience is disqualifying.

PCB

Tr. 48_50.25

What the

law does say, of course, is that

experience can be considered,

and

where the site

is located near sensitive uses, threatens

vulnerable ground and surface waters,

is so

small

as to

have no buffer area or operational room,

and

is designed without protective systems

such as sprinkler systems or firefighting

water,

it is

entirely

reasonable, and consistent with the evidence,

to consider lack ofexperience an

element

in judging compliance with criteria 2 and

Notably, Mr.

Lowe has changed his mind on this

point.

At the County hearing, in

refusing to provide further information on Mr.

Lowe’s activities

the County, Mr.

Lowe’s attorney agreed that Mr.

Lowe’s past operations “goes

his ability

run a transfer station”

and could be argued by the parties and considered by the County.

In Medical Disposal Services,

the Board

also

determined, and the Appellate Court affirmed. thai

siting

approval

was not transferable.

While the legislature subsequently amended the statute to provide that siting

approval

could be transferred,

this in no

way affects the right of the siting authority to consider the operations

history of the applicant in the first

instance.

The new

operator’s experience will be

considered by

the Agency during

the permining process pursuant to Section 390) of the Act.

415 ILCS

5/39(i).

If Mr. Lowe’s argument

is that actual experience may be

disqualifying but that total ignorance

protected,

has

not provided any

support for that proposition, which

contrary to the entire protective plan of Section

39.2.

Under that theory the large waste

companies should try to find the least experienced

people

they know to front

for

them on their applications.

No experienced waste company,

however, would propose a site

so small it can’t turn

its

trucks or a monitoring well

system without

ungradient or a deep well.

Mr. Lowe’s

lack of experience shows

throughout his application.

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Tr.

(1-3-14-03), C0022 I.

Mr.

Lowe has waived his right to argue that his experience or

inexperience

couldn’t be considered.

So what

known

about Mr.

Lowe’s experience?

First, responding to

a question from

Board Member Koehler, Mr.

Lowe admitted he didn’t even read

his own application.

Tr. 48

(IV-

3-8-03), C00203.

Marshall

Lowe

also admitted that

he has no experience in solid waste

management or in

running

a transfer station.

Tr.

19-20 (1-3-8-03), C00200.26

His application

says so

as well.

Mr. Lowe admitted he

had “no clue” who

would be the operator of the transfer

station.

Tr.

(111-3-8-03), C00202.

He plans to

own the

site:

operations are to be carried out

his wholly owned shell corporation

Lowe Transfer,

Inc.

(“Transfer”).

Tr.

(111-3-8-03),

C00202,

Transfer has no experience, no employees, no money.

Tr. 27.

5 1-52 (11-3-8-03),

C00201.

It is set up to shield

Lowe from

liability if

anything goes wrong.

Mr.

Lowe

and his

attorney admitted as much at hearing.

Tr.

50-5 1, 54(111-3.8-03), C00202.

Mr.

Lowe’s attorney argued at the Pollution Control Board hearing that a waste transfer

station is really just

a trucking terminal.

PCB Tr.

22-23.

Mr.

Heisten, attorney for the County,

ably responded to this argument, pointing out that the material handled by a transfer station is

putrescible, it smells and can have significant potential environmental impacts.

PCB Tr.

164.

Mr.

Lowe’s failure to grasp this point is troubling in

itself.

Lowe

claims his expertise

is in heavy

equipment operations and

management and he

himself brought up his current business operations as an example of his background.

Next door

to his proposed site he has operated a construction

and demolition debris recycling business

called Lowe Enterprises (“Enterprises”) since

1991,

He also

runs Lowe Excavating

(“Excavating”) from

a separate

location.

Tiker Trucking is owned by Mr.

Lowe and

his

family

Mr. Lowe

was scheduled to testify

in his own

case only

after

the Village of Cary

noticed

him

to appear

and

indicated

it would call

Mr. Lowe

witness in

its

case

for the objectors.

C03833-3834.

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—

and is also

run from a separate location.

Tr.

8-9. 75-76 (1-3-8-03), C00200.

It is expected that

Tiker will do the

hauling

the landfills.

Tr.

5(11-3-8-03).

C00201.

It appears that Mr.

Lowe is

incorrect when he claimed to have no solid waste experience.

At Lowe Enterprises Mr. Lowe

takes in construction

and demolition materials, including asphalt

from roads and other materials from building projects, separates them, crushes them,

stores them

and then sells some portions and disposes of the residuals which he

collects in

a rolloff

and

agrees are wastes.

See e.g.

Tr.

30-33, 40-4)

(1-3-8-03),

C00200.

Mr.

Lowe was highly

inconsistent in describing the recycled materials, claiming at one point that they were

construction

and demolition debris, Tr.

32 (1-3-8-03), C00200, backing off from

that, Tr.

(1-3-8-03), C00200, and then claiming in

his arguments below,

when he understood that his

activities

might

be in violation of the

Act, that they were not waste, even though

he admitted that

he disposed of residuals.

Unfortunately,

Mr.

Lowe appears to be

in violation of the solid waste

sections of the Act

no matter how these materials are classified,

but the equally troublesome

issue

Mr. Lowe’s indifference to,

indeed his disclaiming ofany

responsibility for his

own

compliance

status unless

IEPA specifically tells him he

needs to do something.

This is not the

philosophy underlying the Act.

Section

2 1(d) ofthe

Act, ILCS

5/21(d) requires a permit for the conduct of “any waste-

storage, waste-treatment or waste-disposal operation.”

Lowe does not

have such a permit.

Lowe

apparently eventually decided, at or after the County hearing, that he does not fall under this

provision because his

construction

and

demolition debris

is not waste.

In fact, he separately

admitted it included residuals which

are

waste and are disposed of, so this

argument is

unavailing, but

it is

likely legally incorrect as well since there is

a separate exception in the

statute for construction and demolition debris sites

in counties over 700,000,

an exception which

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would be

unnecessary

if the construction and demolition debris is not covered by the permitting

requirement.

It is clear Lowe had never considered the relevance of the solid waste management

requirements of the Act to his own operations until this proceeding.

And what

Lowe still fails to

acknowledge is that

even if he were not subject to the permit requirement of2l(d)

he would

still

subject to the operating requirements of Sections 2 1(w) and

22.38.

He clearly

is not in

compliance

with these requirements.27

Section 21(w) requires a construction and demolition debris operator to maintain

documentation identifying the hauler, generator,

place oforigin

and weight or volume of the

debris or soil

and the

place

where it

is disposed of or treated.

Mr.

Lowe is

not following these

requirements.

He maintains

no documentation; indeed he even allows dumping of materials at

his

site after hours when it is entirely unattended,

and has had consequent fly dumping problems.

See e.g.

Tr.

30-36. 44.

47-57

(1-3-8-03), C0200.

Section 22.38

applies to facilities accepting exclusively general construction and

demolition debris for transfer, storage and treatment and sets out a precise set of operating

standards for such a facility.

In order to be eligible for the permit exemption

in Section 2 1(d) for

facilities in large counties, one must comply with Section 22.38 making clear that

it is the

intention ofthe Act that

all

construction and demolition debris recycling facilities be

regulated in

some

way.

There are not intended to be any loopholes.

Among other things

under