BOARD

LOWE TRANSFER, IN

LOWE,

Petitioners,

vs.

)

Case No.

PCB

03-221

)

RE CE

* \7 ED

(mAccL:

SEP

0

2

Z003

STATE OF ILLINOIS

Poliut~onControl Board

COUNTY BOARD OF

MCHENRY COUNTY,)

ILLINOIS

Respondent.

)

)

)

TO:

See Affidavit of Service

PLEASE

TAKE NOTICE that

on September

g

&~,

2003,

we hand delivered for filing

with the Illinois Pollution

Control

Board, the attached Ilespondent County

Board

of Mdllenry

County,

Illinois’

Reply Brief in

Support

of its

Decision

to Deny Siting Approval

to

Lowe

Transfer, Inc., a copy ofwhich is attached hereto.

,2003

Respectfully

Submitted,

On behalf ofthe County Board ofMcHenry

County, Illinois

By:

Hinshaw & Culbertson

N/P

~

One of itI Attorneys

~7

)

)

NOTICE OF FILING

Dated:

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box

1389

Rockford, Illinois

61105-1389

815/490-4900

70375125v1 830017

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STATE OF ILLINOIS

The undersigned, pursuant to the provisions of Section

1-109

of4Jffi~lJSi&9e~Wt~’ivil

Procedure,

hereby

under

penalty

of perjury

under

the

laws of the

United

States

of America,

certifies

that

on

ii

~1.

,

2003,

a

copy

of the

Respondent

County

Board

of

Mdllenry

County,

Illinois’

Repl~’Brief in

Support of its 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

100W. 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 of5:00 P.M~,

addressed as above.

HINSHAW & CULBERTSON

100 Park Avenue

P.O.

Box 1369

Rockford,IL 61101

(815) 490-4900

70374162v1 830017

---

~flRR~1RII

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j

RECEIVED

BEFORE THH

Itll~9~~

NH

f~ftONTROLBOA1WERRg OFFICE

LOWE TRANSFER, INC.~

SEP

02

ZUO3

LOWE,

)

STATE OF ILLINOIS

Pollution

Control Board

Petitioners,

)

vs.

)

Case No.

PCB 03-221

)

Pollution Control Facility Siting Appeal

COUNTY

BOARD OFMCHENRY COUNTY,)

ILLINOIS

)

)

Respondent.

)

RESPONDENT

COUNTY BOARD OF MCHENRY COUNTY, ILLINOIS’ REPLY

BRIEF

IN SUPPORT

OF ITS

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.

THE EVIDENCE AMPLY SUPPORTED MCHENRY COUNTY BOARD’S DECISION

TO DENY SITING APPROVAL.

As set

forth

in

both

Co-Petitioners’

and Respondent’s opening briefs, this Board must

determine whether the McHenry County Board’s decision to deny siting approval was against the

manifest

weight of the evidence.

See

Waste

Management

of Illinois,

Inc.

v.

Illinois

Pollution

Control Board,

160 Ill.App.3d 434,

441-42,

513

N.E.2d

592, 597

(2d Dist.

1987).

According to

this Board:

“A verdict is

.

.

.

against the manifest weight of the evidence where it is palpably

enoneous,

wholly

unwarranted,

clearly the

result of passion or prejudice, or

appears to

be

arbitrary, unreasonable,

and not based

upon the evidence.

A verdict

cannot be set

aside merely because the jury could have drawn different inferences

and

conclusions

from

conflicting testimony

or because a reviewing

court would

have reached

a different conclusion.

.

.

when considering whether a verdict was

I

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70374440v1 830017

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contrary to the weight of the evidence, a reviewing court must viewthe evidence

in the light most favorable to the appellee.”

A.R,F.

Landfill,

Inc.

v.

Lake

County,

PCB

87-51

(Oct.

1,

1987), slip op.

at

*6,

quoting Steinberg

v.

Petra,

139

Il1.App.3d

503,

508

(1986).

As

explained

in

A.R,F.,

if “this Board finds

that the

County

Board

could have reasonably arrived at its conclusions,

the County

Board’s

decisions

must

be

affirmed.”

A.R.F.,

PCB

87-51,

slip

op.

at

*6.

A review

of the

record

in

this

case

establishes

that

it

was

clearly

reasonable

for

the

McHenry

County

Board

to

determine

that

criteria (ii),

(iii) and (v) were not satisfied by the Applicant.

Therefore, this Board should affirm

the McHenry County Board’s decision to

deny siting approval to Lowe Transfer, Inc.

While

Co-Petitioners

contend that

this

Board

and

courts

have been

willing

to

reverse

decisions of local

hearing bodies

with

respect

to

one

or more criteria,

Co-Petitioners

were only

able to

locate

12

cases where

the Board and appellate

courts have actually reversed a decision of

local hearing body

on

any criterion, in

spite ofhundreds ofpollution control facility siting cases

that have been appealed to the Pollution

Control Board

and

appellate

courts.

(Pet.

Br. pp.

5-6).

The fact that the Board and appellate

courts have so seldom found that decisions of local

hearing

bodies

are against the manifest weight ofthe evidence establishes how difficult it is

to

meet that

standard.

A review of the

12 cases cited by Co-Petitioners further establishes that Co-Petitioners

are not entitled to the relief that they

seek because out ofthe

12 cases cited by Co-Petitioners, the

appellate

court

or

Board

have

only

completely

reversed

a

County

Board’s

denial

of

siting

approval

three

times.

See

Industrial

Fuels

&

Resources/illinois,

Inc.,

v.

Illinois

Pollution

Control

Board,

227

Ill.App.3d

533,

592

N.E.2d

148

(1st

Dist.

1992);

Watts

Trucking

Service,

Inc.

v.

City ofRock Island,

PCB

83-167 (March 8,

1984);

Frink’s Industrial

Waste,

Inc.

v.

City of

2

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Roc/eford,

PCB

83-41

(June

30,

1983).

In most of the other

cases

cited

by

Co-Petitioners,

the

Board

found

that while

the

lower

tribunal’s decisions with respect to one or two criteria were

against the

manifest weight of the evidence, the tribunal’s decisions with respect to the remaining

criteria were correct,

and

the

tribunals’ overall

decisions to deny siting approval were

affirmed.1

In

the

remaining

cases,

the

Board

actually

reversed

approval

of

a

pollution

control

facility,

finding that the

local hearing body improperly

found that

a

certain criteria had

been met when it

actually had not.2

Furthermore, the

only three cases in

which this

Board or an appellate

court have actually

reversed a local

governing body’s decision to

deny

siting approval are all clearly distinguishable

from

the

facts presented

in

this

case.

Unlike

the case

at

hand,

where

three

experts

testified

against

the

Applicant

with

respect

to

criteria

(ii)

and

(v),

in

Industrial

Fuels

(which

Co-

Petitioners cited

in their brief as being “almost

identical”

to

this case

(Pet.

Br.

p.

7) there was no

testimony

contrary

to

that

provided

by

the

Applicant’s witnesses with

respect

to

those

criteria.

227 Ill.App.3d at 547-48, 592 N.E.2d at

157-58.

The Court found this fact to be significant,

noting

that

with

respect

to

criterion

(ii),

“no

one

testified,

for example, how particular design

See CDTLandfihl Corp.

v. City ofJo/jet,

PCI3

98-60 (March

5,

1998)

(affirming

City’s decisions

on criteria

(i) and

(iii)

and affirming denial

of siting

application);

Waste Hauling,

Inc.

v.

Macon County Board,

PCB 91-223

(May 7,

1992)

(affirming County Board’s decisions

on criteria

(i), (iii), (v) and

(viii)

and affirming

denial of

siting

application);

Clean

Quality

Resources,

Inc.

v.

Marion

County Board,

PCB 91-72

(Aug.

26,

1991)

(affinning County

Board’s decisions

on

criteria

(i), (ii),

(v),

(vi) and (vii)

and affirming

denial

of siting

approval);

Waste

Management of Illinois,

Inc.

v.

McHenry

County

Board,

PCB

86-109

(Dec.

5,

1986)

(affirming

County

Board’s

decisions

on

criteria

(ii),

(iv),

(v)

and

(vi)

and

affirming

denial

of

siting

application);

McHenry County Landfill,

Inc.

v. County Board ofMcHenry County,

PCB 85-192

(March

14,

1986) (affirming

board’s decisions

with respect

to criteria

(i), (ii),

(iii), (v) and (vi) and affirming denial of

siting approval);

A.R.F.

Landfill v. Lake

County,

PCB

87-51

(Oct.

I,

1987) (affirming board’s decision

with

respect to criteria

(i),

(ii) and

(vi)

and affirming siting

denial);

Industrial Salvage,

Inc.

v. County Board of

Marion,

PCB 83-173

(Aug. 2,

1984) (affirming County’s decision with respect to criterion (i)

and affirming

denial

of

siting approval).

2

See

Slates

v.

Illinois

Landfills,

Inc.,

PCB

93-106

(Sept.

23,

1993)

(reversing approval

based

on

criterion

(0);

County of Kankak.ee

v.

City of Kankakee,

PCB

03-3!,

33,

35

(Jan.

9,

2003)

(reversing

siting

approval

because Board found that criterion (ii) was notmet).

3

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features or operating

procedures might increase the risk

of the harm to

the residents.

No expert

witness

testified

that

the

design

and

proposed

operation

of the

facility

were

flawed

or

that

IndustriaPs

application ignored or violated any ofthe applicable

governmental regulations.”

227

IlLApp.3d

at

546,

592

N.E.2d

at

157.

Because

the

objector

“failed

to

rebut

or

contradict

Industrial’s showing that the

facility was designed

in

light of

the

public

health,

safety

and

welfare,” the Court determined that

it was forced to reverse the City Council’s decision with

respect

to

criterion

(ii).

227 Ill.App.3d at 547, 592 N.E.2d at 157.

Likewise, this Board found

that

the

City’s

decision regarding criterion (v) was against the manifest

weight of the evidence

because the

Applicant’s

presentation

with

respect

to

criterion (v)

was

unrebutted,

and

without

contradiction

or impeachment.

227

Ill.App.3d

at

548,

592

N.E.2d at

158.

Far, far

from

being

“almost identical”

to this case,

Industrial Fuels

is actually very factually different because in

this

case, there

was

ample

testimony

from Mr. Thomas, Mr. Nickodem and

Mr. Sutherland that the

location, design and

plan of operations of the Lowe

facility were

flawed

in many respects, such

that

the facility

was not

protective of the public

health,

safety

and

welfare

and

did

not

have a

plan

of operations that

would

minimize the danger to the surrounding area from fire,

spills,

and

other operational accidents.

(C.00189,

pp.

9-10,

61,

C.002l5,

p.

54,

55,

C.002l8,

p.

79,

80).

Consequently,

the McHenry County

Board

was correct

in

finding,

as it

did,

that the Applicant

failed to satisfy criteria (ii) and (v).

The facts of this

case are

also

distinguishable from

those

presented

in

Watts

Trucking

because

in

Watts

the facts

clearly demonstrated

that criteria (ii),

(Hi)

and

(v) were

met by

the

Applicant.

In

Watts,

this

Board

found that

the City

Council’s decisions

with

respect

to

those

criteria were

against the manifest weight of the evidence.

PCB 83-167.

In doing so,

the Board

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noted

that

the

location of the

facility

was compatible

with

the

surrounding

area because

the

facility was located in

an highly industrialized

area, immediately

adjacent

to

a rubber

plant

and

in

close proximity to the City’s

wastewater treatment plant and

three plating plants.

PCB 83-167,

slip op.

at *3•

Even though

the area where the facility was to be

located was once residential,

it

had

become

more

and

more

industrial.

Id.

at

*4

In this

case, the

exact

opposite

is true; rather

than becoming

more

industrial,

the

area

surrounding

the

Lowe

Transfer

Station

is

becoming

more

residential

(because

of

Bright

Oaks

and

now

the

Plote

development

being

zoned

residential).

The

Board

in

Watts

also

found

that

criterion

(v)

was

satisfied

by

the

applicant

because

“the plant

will have

alarms,

an

automatic

sprinkler

system

and

two

fire extinguisher

stations,”

and

the Board pointed

out that “there

is virtually no possibility

of fire itself spreading

from

the facility to

the surrounding area.”

Id. at

*7~ In this

case, however,

the

facility

is

not

equipped with

sprinklers

(COOl 79,

pp.

69-70), and

Mr Nickodem specifically testified that

fire

could quickly spread

to The Hollows because of the plethora of vegetation in that area, as well as

its close proximity to the transfer

station.

(C.00215, pp. 32-33).

Finally, with respect to criterion

(ii), the Board in

Watts

found that it was “unable

to

find any

evidence

other than that the facility

was designed, located and proposed to

be operated

so that

the public

health,

safety

and

welfare

will

be

protected.”

Id.

at

*12.

Here,

however,

there

was ample

evidence presented

by

three

experts

regarding

deficiencies

in

the

location,

design

and

operations

of the

facility

that

will

adversely impact the public

health,

safety

and

welfare.

(C.O0188-90;

C.00214-19).

Therefore,

while

the

City

Council’s

decisions

in

Watts

may

have

been against

the

manifest

weight

the

evidence,

the

McHeniy

County

Board’s

decisions

regarding

criteria

(ii),

(iii)

and

(v)

are

not

againstthe manifest weightof the evidence,

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Finally,

the

facts presented

in

Frink’s

Industrial

Waste

establish that while the City of

Rockford’s decisions with respect to criteria (ii) and

(iii)

were against the manifest weight ofthe

evidence in

that case, the same is not true in the present case.

In

Frink’s,

the City determined that

criteria (ii)

and

(iii)

were

not

satisfied because the facility was

located

2000

feet from

a school,

and

there were

fears

that

the area may become

exclusively devoted

to

disposal

facilities.

PCB

83-41, slip

op.

at

*4

The

Board found that “unsupported opinion

and

fears

that the industrial

park

would

‘deteriorate

into

an

exclusive

site for disposal

facilities”

were

unfounded.

Id. at *4~

The

Board

also

found

that

the

area

surrounding the

facility

was compatible

with

the

facility

because

immediately

adjacent

to

the

facility was

a

building

occupied

by

Interstate

Pollution

Control,

which

processed

industrial

oils

and

wastewater

and

there

were

several

other

nearby

buildings that

were

industrial

in

nature,

including

a

large

new industrial

building

occupied

by

Honeywell

Motor

Products.

Id.

at

*2.

The

facility was

also

located

in

close proximity

to

the

Rockford

Sanitary District Treatment Plant.

Id. at *3~Because this Board

found that the record

revealed

“the predominantly industrial nature of the area as a whole,” the Board determined that

the

City’s

findings

as to criteria (ii)

and

(iii) were

against the manifest

weight of the evidence.

Id.

at

*6.

However,

a

review

of

the

record

in

this

case

clearly

establishes

that

the

area

surrounding

this

facility

is

not

mainly

industrial.

Although

Lowe

Enterprises

and

Welsh

Brothers operates next to the proposed transfer station on one

side, the remaining character ofthe

property

surrounding

the

transfer

station

is

not

industrial,

with

The

Hollows

and

the

Plote

property directly

adjacent

to

the

facility,

and

Bright

Oaks

less

than a

quarter of a

mile

away.

(C.00215, pp.

54-55).

Consequently,

the character of

the area surrounding this proposed facility

is much different

than the

area

surrounding the proposed facility in

Frink’s,

which

is just

one

6

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reason

why the

Mdflenry

County

Board’s

decision with respect

to

criteria

(ii)

and

(iii)

are not

against the manifest weight ofthe evidence.

As

has been made clear

by

appellate

courts

and

this

Board,

much deference

is

given

to

local hearing bodies

in

pollution

control facility

siting hearings.

Therefore,

a

decision of local

hearing body should only

be

reversed if it is against the manifest weight of the evidence.

Waste

Management ofillinois,

Inc.

v.

Illinois Pollution Control Board,

160 Ill.App.3d 434, 441-42, 513

N.E.2d 592,

597

(2d Dist).

The evidence presented to the McHenry County Board

in the siting

hearings with respect

to

the

Lowe

Transfer Station

establishes that

the County

Board’s decision

was

not

only

not

against

the

manifest

weight

of the

evidence,

but

was

the

only

reasonable

decision based on the evidence and testimony presented.

Consequently, this Board should affirm

the County Board’s decisions with respect to criteria (ii),

(iii) and (v).

II.

THE MCHENRY COUNTY BOARD’S DECISION WITH RESPECT

TO CRITERION

(ii) WAS AMPLY SUPPORTED BY THE EVIDENCE.

It

is

well-settled

that

it

is

inappropriate

for

the

Pollution

Control

Board

to

reweigh

evidence and reassess the credibility ofwitnesses.

See Concerned Adjoining Owners v.

Pollution

Control Board,

288

Ill.App.3d

565,

576,

680 N.E.2d 810,

818

(5th Dist.

1997) (explaining that it

is

up to

“the siting authority

to determine the credibility of witnesses, to

resolve conflicts

in the

evidence,

and

to

weigh

all

of

the

evidence

offered.”)

However,

this

is

precisely

what

Co-

Petitioners

ask

this

Board

to

do

in

their

Memorandum.

Specifically,

Co-Petitioners

spend

several

pages

emphasizing

the

credentials

of

their

own

witnesses,

while

minimizing

the

credentials ofthe objectors’ witnesses (Pet.

Br., 8-10, 23), thereby, in essence,

seeking a

de facto

determination from this Board

that the Applicant’s witnesses were superior to the objectors’

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witnesses

and,

therefore,

in

turn,

necessarily

more

believable

than

the

objectors’

witnesses.

Clearly,

it

would

be

inappropriate for

this

Board

to

judge

or

weigh

the

qualifications

of the

experts who testified at the hearing because it is

not the function of the Board or the courts

“to

determine which

witnesses

are more expert than

others.”

Metropolitan

Waste

Systems,

inc.

v.

Pollution

Control Board,

201

Jll.App.3d

51,

56,

558

N.E.2d

785,

788

(3d

Dist.

1990);

City

of

Rockford

v.

County

of

Winnebago,

186

Ill.App.3d

303,

315,

542

N.E.2d

423,

432

(2d

Dist.

1989).

Furthermore,

there

was

ample

evidence

in

the

record

as

to

the

qualifications

of the

objectors’

experts,

which

established

that

the

objectors’

witnesses

were

clearly

qualified.

(C.00188, pp.

6-18, C.00214, pp.

3-6, C.002l8, pp. 63-65).

The Board members had the benefit

of

observing

the

testimony

and

determining

which

witnesses

were

more

credible,

which

is

precisely

what

the

County

Board

is

obligated

to

do.

See

Concerned Adjoining

Owners,

288

Ill.App.3d at

576,

680 N.E.2d at 818.

Co-Petitioners

also

ask

this

Board

to

reweigh

the evidence

and

conclude

that

simply

because their witnesses testified

that the facility satisfied criterion (ii),

the County’s

decision on

this

criterion must

be

against the

manifest

weight

of the evidence.

However,

simply

because

there

is

some

evidence which,

if accepted, would

support

a

contrary conclusion does not

mean

that the County Board’s decision is against the manifest weight ofthe evidence.

See Wabash and

Lawrence

Counties Taxpayers and

Water Drinkers Association

v.

Pollution Control Board,

198

I1l.App.3d 388,

393,

555

N.E.2d 1081,

1086

(5th

Dist.

1990).

Here,

there was ample

evidence

presented by objectors’ witnesses, which directly contradicted the testimony of the Applicant’s

experts, and the County Board was free to accept that evidence over that of the Applicant’s.

Because there were

experts that

specifically found that

the facility did

not

satisfy

criterion

(ii),

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the County

Board’s

decision

is

not

against the manifest

weight of the evidence

and

should be

affirmed

by

this

Board.

See Metropolitan

Waste Systems,

201

Ill.App.3d

at

56,

558

N.E.2d at

788;

City ofRoclcford,

186

Ill.App.3d at 315,

542 N.E.2d at 432.

Furthermore,

Co-Petitioners

are

incorrect

in asserting that they have proven that the

transfer station satisfies criterion (ii) simply because the

Lowe

Transfer Station allegedly met or

exceeded

the

standards

for

transfer

stations,

(Pet.

Br.

pp.

7,

23).

First

of

all,

there

are

no

industry

standards

or state regulatory

standards

with

respect

to

transfer stations.

(C.0021 8,

p.

17).

Rather, there is only conflicting testimony from experts as to what is desirable or accepted

practice.

Even

if there were such standards, Co-Petitioners’ argument would still

fail based on

the

court’s

holding

in

McHenry

County

Landfill,

Inc.

v.

illinois

Environmental

Protection

Agency,154

lll.App.3d

89,

506

N.E.2d 372

(2d Dist.

1987).

In

McHenry

County,

the applicant

contended

that

the

county

board

could

not

deny

siting

approval

for

its

landfill

because

the

landfill

met

or exceeded

State design

and

operation

requirements.

154

Ill.App.3d

at

100,

506

N.E.2d at 380.

The appellate court disagreed, and held that a county board may deny siting

approval “where

it determines that the

proposed landfill presents a potential

health hazard to the

surrounding community, notwithstanding the applicant’s complete compliance with the EPA’s

and PCB’s technical requirements.”

154 Ill.App.3d

at

101,

506

N.E.2d 372, 381.

In McHenry

County,

the Court concluded that the record amply supported the county board’s conclusion that

the

landfill did not satisfy criterion (ii) despite the fact that the facility met applicable EPA

requirements.

id.

Likewise, in this case, there wasample

evidence

in the record to establish that

the Applicant did not

satisfy

criterion

(ii)

even

if,

assuming

arguendo,

the facility did

comply

withoreven exceed applicable design standards, as asserted by Co-Petitioners.

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In support

of its

argument that

this facility must

satisfy

criterion (ii) because it meets or

exceeds

design

standards

for

transfer

stations,

Co-Petitioners

cite

to

Clutts

v.

Beasley,

185

Ill.App.3d 543,

541

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

1989).

(Pet. Br.

pp.

7, 23).

However,

Clutts

is clearly

not

controlling

because

Clults

is a

case

where

Illinois

Environmental

Protection

Agency

standards were directly at issue, while there are noEPA standards at issue in this case.

See 185

Ill.App.3d at 546-47,

541

N.E.2d at 846.

Clutis

is also distinguishable because it is a case where

appellate

court upheld a

local

siting

authority’s approval of a

landfill, not

a

case

in

which

the

Board or court reversed the

local siting authority’s denial of siting approval for a transfer station.

See

Id.

That distinction

is

extremely

significant because the

Court

in

Clutts

merely found that

the County Board’s decision granting siting approval was not against the manifest weight of the

evidence.

Id.

The Court never asserted, as Co-Petitioners contend, that complying with EPA

regulations

and standards

is all that is required to meet criterion (ii).

In fact, suchan assertion is

nonsensical

because if criterion

(ii)

only

required that

a

facility

comply

with

EPA

rules

and

regulations

or existing

design

standards,

there would

be

no

need

for

a

local

hearing body

to

determine if that

criterion was met, as such a determination could simply

be made by the EPA or

the IPCB.

However, it clearly

not the province ofthe EPA or IPCB to

determine if an Applicant

has satisfied criterion

(ii).

See

McLean

County

Disposal,

Inc.

v.

County

of

McLean,

207

Ill.App.3d

477,

566

N.E.2d

26

(“The

legislature has

charged the county

board, rather than the

PCB,

with

resolving

the

technical issues such as public health ramifications of the landfill’s

design.”).

Therefore, it is

clear that

more than mere compliance with

EPA rules and

regulations

is required to satisfied criterion (ii). Even where standards exist,

it is the siting authority’s role to

consider the application of those standards to

a given location, and

it is theprovince of the local

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siting authority to determine

if an Applicant has located designed and planned to operate a

facility that will

protect the public health, safety and welfare in spite ofan applicant’s compliance

with applicable rules,

regulations and industry standards,

Throughout theirMemorandum, Co-Petitioners selectively pick

and

choose evidence and

testimony

that

they apparently

believe

establishes that

their

facility satisfied

criterion

(ii).

In

doing so, Co-Petitioners are asking this Board to reweigh the evidence in this case, which this

Board has no authority to do.

See

Concerned Adjoining

Owners,

288

Ill.App.3d at 576, 680

N.E.2d at 818.

Additionally, in presenting its version of the facts, Co-Petitioners leave outmuch

of the testimony of the witnesses opposing the Applicant, which clearly establishes that the

facility is not located, designed and operated to protect the public health, safety and welfare. By

failing to refute much ofthe testimony elicited from the objectors’ witnesses, Co-Petitioners have

established that their facility will not be located, designed or operated to protect the public

health, safety

and

welfare.

A.

The McHenry County Board’s decision that the transfer station is not located to

protect the public health, safety and welfare is amply supported by the evidence.

The evidence and testimony cited by Co-Petitioners in their briefclearly fails to establish

that the location of the transfer station will protect the public health safety and welfare because

while the Co-Petitioners focus on specific areas of the facility that they believe

are

“state of the

art,” Co-Petitionerssimply do not address problem areas of the facility that show that the transfer

station is not located to protect the public health, safety

and

welfare.

One of the major problems that Co-Petitioners do not even mention in their brief, even

though much testimony was presented at the

siting hearing with respect to the topic,

is the

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inadequate size of the facility. Instead, Co-Petitioners focus on the queuing distance

and

internal

traffic, contending that the queuing distance and traffic patterns on the site will not cause any

problems or back-ups.

(Pet Br.

p.

12).

While there may be adequate queuing in this facility a

majority ofthe time, nonetheless, direct testimony from Mr. Nickodem established that there will

likely be traffic back-ups on Route 14 basedon the inadequate size of the site.

(C.00214, pp. 29,

55).

Mr. Nickodem also found that the traffic patternson site were poorly designed because they

could cause back-ups and even accidents.

(C.00214, pp. 33-34).

Furthermore, testimony at the

siting hearing establishes that once on the site, trucks will not have room to maneuver around the

site.

(C.00214, pp. 34-51).

Obviously, Co-Petitioners could not refute this point and, therefore,

did not even address this issue.

Because the size of the facility is not protective of the public

health safety and welfare in that

its inadequate size can quite possibly lead to accidents and

traffic back-ups, the County Board could have concluded on that basis alone that the transfer

station did not satisfy criterion (ii).

Co-Petitioners also fail to adequately explain how this facility is located to protect the

public health,

safety and welfare when

it

is located immediately adjacent

to The Hollows.

Instead of simply admitting the obvious

fact that the transfer station

is located next

to an

environmentally sensitive area, the Co-Petitioners in their brief place much emphasis on the fact

that the site is zoned 1-2, and seem to suggest that the zoning ofthe site should be determinative

with respect to the whether the location meets criterion (ii), just as they did at the siting hearing.

(Pet. Br.

p.

22).

However,

it

is clear

that zoning

is not

all

that should be considered

in

determining if a pollution control

facility, such as a transfer station,

is located to protect the

health, safety

and

welfare of the public.

If this were true, there would be no need for

any

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demonstration beyond compliance with local zoning standards.

However, this

is not the case,

and

the McHenry County Board was allowed, and even obligated, to consider how the property

surrounding this transfer station was actually being used instead of examining only thezoning of

such property. As such, the County Board had more than ample evidence to establish that the

facility

was

not located to protected the public health, safety and welfare because of its close

proximity to The Hollows.

Another major problem with the

site’s location

is the absence of an adequate buffer

between the site and The Hollows.

While Co-Petitioners contend that screening is adequate at

the facility in large

part

due to the scale house and the concrete structures on the site (Pet. Br. p.

13), Mr. Nickodem specifically found that the scale house was not a complete buffer for litter or

noise.

(C.00216, pp.

6-7).

Furthermore, Mr. Nickodem explicitly

stated that the screening

designed for the facility was inadequate to minimize the effect on the Hollows as well as abate

noise thatmay be experienced on the Plote property. (C.00215, pp. 64-65).

B.

The Mcflenry County Board’s decision that the transfer station is not designed to

protectthe public health, safety

and

welfare is amply supported by the evidence.

While Co-Petitioners repeatedly assert in their brief that elements of the design on the

transfer station “exceed” standard designs for a transfer station, Co-Petitioners fail to point out

there are “no industry standards.”

(C.00218, p. 17).

Co-Petitioners also

fail to mention many

areas where

their facility

is lacking, all

of which were specifically noted by the objectors’

witnesses at the siting hearing,

and

are set out below.

Co-Petitioners also fail to acknowledge

that some of the design features that they contend exceed design standards actually provide no

benefit, andmay even be harmful. Twosuch examples

are

the indoor scale house and the indoor

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untarping of vehicles. While Co-Petitioners seem to suggest that these

are positive components

of the design of the facility

(Pet.

Br. pp. 13-14), Mr. Nickodem disagreed.

Mr. Nickodem

testified that there was “no advantage” to an indoor scale house,

and

actually stated that an

indoor scale house wasa disadvantage because it would be “just another building where you can

build up carbon monoxide from vehicle exhaust.

(C.00215, pp. 81-82.

Mr. Nickodem also

testified that untarping inside

the transfer station presented a safety hazard in that the goal in

designing transfer stations is to minimize the number of people on the floor because “the more

people you have on the floor, the morepotential there is for another truck to hit thatperson or the

front end loader backing or going forward to hit that person.” (C.00217, pp. 20-21). Because the

design features that Co-Petitioners assert enhance their facility may in fact actually be harmful to

the facility,

it is clear why the Mcflenry County Board correctly found that the Applicant failed

to satisfy criterion (ii).

Furthermore,

the evidence presented

at

the hearing

established

that certain

design

components were missing in this

facility, which made the facility not designed to protect the

public health, safety and welfare.

Likely the most pressing problem is that the groundwater in

and

around the site was not adequately protected.

(C.0O1 88, p. 33).

Co-Petitioners, however,

argue that the Applicant was the only party to provide testimony from a hydrogeologist, and,

therefore, that witness’ testimony must have been accepted since the County made no credibility

finding against

its hydrogeologist.

(Pet. Br.

17).

That contention, however, is clearly specious

as the McHenry County Board was not required to make any record of its credibility findings in

its resolution.

Rather,

it

is well-settled that a local hearing body does not have to indicate

specific facts uponwhich itmade its decision, but only has to “indicate which of the criteria, in

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its

view,

have

or

have not

been met.”

E

&

E

Hauling,

Inc.

v.

Pollution

Control

Board,

451

N.E.2d

555,

577-578

(2d

Dist.

1983).

Additionally,

Co-Petitioners

ignore

the

fact

that

Lawrence

Thomas,

a

professional

engineer

with

23

years

of

experience

in

hydrogeology,

provided testimony directly

refuting that of the Applicant’s witness,

Mr.

Dorgan.

(C.00l 88,

pp.

6-7, 33).

Consequently,

the County

Board

was clearly

within

its

rights

to

accept

Mr.

Thomas’

testimony

over that ofthe

Applicant’s witness

and

find that the groundwater was not

adequately

protected because ofthe inadequate groundwater

monitoring

plan,

and the further fact that there

was no ability to stop the flow of contaminants into the groundwater (C.0O188, pp. 43-44, 48-

51).

Co-Petitioners

assert

that

the

groundwater

will

be

adequately

protected

because

the

facility is equipped with groundwater monitoring wells.

(Pet. Br. p 19). However, the presence

of the two wells proposed by the Applicant does not establish that the facility

is protective of

groundwater in

the area.

In fact, the testimony at the hearing establishes that those

groundwater

monitoring wells will be of little, if any, assistance in determining whether there is groundwater

contamination.

(C.Ol 88, pp.

48-49).

That is true because there are no up-gradient wells and also

because the wells

are

only testing the top layer of the stratigraphy.

Id.

The groundwater

monitoring

system

is also

inadequate because there is nothing that will stop

“sinkers,” or objects

denser than water, including

contaminants,

from moving

into the groundwater.

(C.001 88,

p.

36).

The contamination of groundwater is a particular problem because the shallow groundwater will

undeniably

flow to

Lake

Plote,

Lake

Atwood, Lake Killarney and the nearby

“irreplaceable”

wetlands

(C.00188,

pp.6-7,

25-28,

C.00l90,

pp.

44-45).

Mr.

Zinnen

agreed

would

that

the

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groundwater would flow to

those areas and

even stated that the groundwater flows at a rapid rate

to the wetlands.

(C.00181, p.25, C.00l86, p. 87)

The

storm

water management

system

is

also

not

designed to

protect

the

public

health,

safety and welfare because storm water falling into the ramps and apron of the facility will be

treated as storm water, rather than contact

water, even though

such water may come into contact

with contaminants on the apron and on the trucks themselves.

(C.00215, pp.

11-12, 21-22).

Finally,

the most

discussed problem with

the

storm

water

system,

which

Co-Petitioners did

not

even acknowledge in their brief,

is

the fact that there

is no

ability to

stop materials

in the

storm

water system from migrating into the sewer system and on

into

groundwater

if,

in

fact,

contamination

is

detected.

(C.00 188,

p.

43).

Co-Petitioners

seem

to

suggest

that

the

County

Board

should

not

have even

considered the possibility

of groundwater contamination

because

Mr.

Thomas did

not

know

of any

transfer stations

that

caused

groundwater contamination,

but

Mr. Dorgan, the Applicant’s own

witness, admitted that he was not aware oftesting to determine

ifany contamination existed.

(C. 00224, p. 19).

Additionally,

Co-Petitioners’

assertion

that

the

storage

tanks

designed

to

hold

contact

water are

“more than sufficient” (Pet. Br. 17) is unfounded because the Applicant’s

own experts

admitted

that

they did

not

perform

any

calculation to determine

if the proposed capacity was

sufficient to properly contain

all run-off

(C.00181,

p. 48), and Mr. Nickodem stated that he

did

not believe that the

tanks

were ofadequate size. (C.00214, pp.

59-60,

C.00215, p. 86).

Co-Petitioners also point

out the facility’s

“special and unique design features,”

including

its automatic doors, which

they contend will reduce the potential for noise and litter.

(Pet.

Br. p.

19).

However, Co-Petitioners fail to point out

that the automatic doors

to

the transfer station are

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only at the ends of the building for the transfer truck tunnel, while the doors on the west side,

which is directly facing The Hollows, will generally be opened.

Furthermore,

it is clear that the

automatic

doors will

not

be

closed

at

all

times

and,

in

fact, the

doors will be opened whenever

vehicles

are

fueled

in

the

facility

(C.002l6,

p.

28)

as

well

as

when

trucks

are

entering

and

exiting.

When

the

doors

are

not

closed,

noise

and

litter

will

surely

travel

to

surrounding

neighbors,

including

Bright

Oaks,

The

Hollows

and

the

Plote

property.

Co-Petitioners

also

contend that the building

being

designed to have

its

open

side

face the prevailing wind will

be

beneficial

because

it

will

minimize

the

potential

for

the

wind-blown

distribution

of

litter.

However,

Mr.

Nickodem

testified

that

location

of the

open

side

of the

building

would

not

necessarily be beneficial, as wind could swirl around and travel out of the building instead of

stopping inside, thereby sending noise, odor and

litter to neighboring properties.

(C.00216, pp.

4 1-42).

Co-Petitioners

also

point

out

its

landscaping

plans,

which

it

believes

are

adequate

in

minimizing potential

impacts

to

surrounding

areas.

(Pet.

Br.

p.

21).

However, Mr.

Nickodem

testified, and the

Applicant’s own witness, Mr.

Gordon, agreed that the way to most successifilly

minimize sound to neighbors

would be through

the use of a barrier wall, which was not included

in

the

Applicant’s design

of the

facility

(C.00215,

pp.

64-65;

00816,

p.

10).

Although

Co-

Petitioners

place much emphasis on the fact that the landscaping was developed after consulting

with

the

Conservation

District

(Pet.

Br.

p.

21),

Co-Petitioners

fail

to

point

out

the

McHenry

County Conservation District drafted a resolution that opposed the transfer station (C.07203-07),

indicating

that

the

McHenry

County

Conservation District

obviously

did

not

believe

that

the

landscaping would be

adequate to protect its property.

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Throughout their brief, Co-Petitioners point out that certain design

features ofthis facility

meet

or exceed design

features that were

proposed on the Woodland facility in

Kane

County,

a

facility

designed

by

Mr.

Nickodem

for

which

siting

approval

was

denied.

However,

Co-

Petitioners

fail to point out

the important features that were present in the Woodland facility that

Mr. Nickodem specifically

found were lacking

in

this

facility that

caused it to be

designed in

a

way that did not protect the health,

safety

and welfare of the public.

The major features that are

missing

in

this

facility, which

were

present

in

the Woodland

facility,

include

paving

over

the

entire

site, as well as curbing,

gutters

and

multiple valved catch basins

to

stop and

isolate

spills.

(C.00216,

pp.

25-26,

53-54;

C.00218,

pp.

16-17).

Additionally, the

Woodland

facility was

equipped with

a sprinkler

system,

a

200-pound wheeled water fire extinguisher

and

a

detention

pond

which

would

supply

water

for fires

(C.00218,

pp.

29-30),

while the only

fire

protection

equipment proposed for the

Lowe Facility consists of hand-held fire extinguishers and

a fire pit

with

no

on-site

water

source.

(C.00215,

pp.

31-32;

C.00179,

pp.

78-79).

Furthermore,

the

Woodland

facility

was

proposed

to

be

equipped

with

a

screening

wall,

similar

to

a

tollway

screening

wall

(C.00214,

pp.

25-26),

unlike

the

minimal

screening

proposed

for

the

Lowe

facility.

(C.00 186, pp.

9-10).

Based on the design features set out

above that were present in the

Woodland facility and missing in the

Lowe Transfer Station, it

is clear that while Mr. Nickodem

believed that the facility he

designed for Woodland would satisfy criterion (ii), the facility in this

case would not,

as McHenry the County Board properly found.

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C.

The

McHenry

County

Board’s decision that

the plan

of operations

of the

Lowe

Transfer Station was not designed to

protect the public

health,

safety

and

welfare

is amply supported by the evidence.

Co-Petitioners

contend

that

the

transfer

station

will

be

operated

to

protect

the

public

health,

safety

and

welfare

because no hazardous waste

will be

accepted

(Pet.

Br.

p.

22).

However, this fact, in

and of itself,

does not establish that the facility will be operated in a way to

protect the health, safety and welfare. Even though hazardous waste will not be accepted into the

facility,

it is clear that approximately two tons of household hazardous waste will come through

the transfer station

per year as people often include

household hazardous waste

in their garbage.

(C.00180,

pp.

33-35;

C.00187,

pp.

33-34, C.00l90,

p.

86).

It is also

undisputed that if a portion

of this

waste,

which

is

liquid,

flows

onto

some

part

of the site that

is not covered by the

geomembrane liner, such as the ramp or apron,

this waste will flow directly into the storm water

system

and

then

to

groundwater

in

the

area.

(C.00215,

pp.

11-12,

21-22).

Even

if

it

is

discovered that a truck is

spilling household hazardous

waste

onto an area of the site, there

is

no

way

to

prevent that

waste

from

reaching

into the

groundwater,

as the

storm

water connection

system

is

not

equipped

with

a

control

valve

or other shut-off mechanism.

(C.00 188,

p.

43).

Because

there

is

not

an

adequate

plan

of

operations

that

appropriately

deals

with

possible

household hazardous waste spills or other types of spills

which may

leave the

site

and

find their

way

to

the nearby

environment,

the

McHenry County

Board

correctly

found

that

the

plan of

operations of the facility was not designed to protect the public health, safety and welfare.

In addition to an inadequate plan ofoperations that fails to minimize

noise,

lifter

or odors,

the Applicant’s plan of operations

is also not designed to minimize dust.

The Applicant’s own

witness

testified

that

dust

will

exist

in

the

facility.

(C.001 84,

pp.

75-76).

The amount of dust

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present on this

site

is actually more than on most

other transfer facility sites

because some

areas

of site

are

covered

in

gravel, rather than

being

entirely

paved,

as

most

sites

are.

(C.00215,

pp.

29-30,

C.002 18,

pp.

16-17).

The

prevalence of dust

will

also

be

increased

because

the site

is

expected to handle a significant

amount of construction and demolition debris.

(C.00215, pp.

34-

36).

Despite the distinct presence of dust

in

and

around

the transfer station, the Applicant

will

not

provide misters

to

reduce the amount

of dust.

(COOl 84,

pp.

75-76).

Because the plan of

operations of the Lowe Transfer

Station

is

not designed

to

control and

minimize

the amount

of

dust

on

the

property,

the

McHenry

County

Board

was

correct

in

finding

that

the

plan

of

operations was not protective of the public,

health safety

and welfare.

Furthermore,

Co-Petitioners

contend that

their

facility

will

be

operated

in

a way

that

protects

the public health,

safety

and

welfare simply based

on

promises of what Mr.

Lowe

will

do in the future, with no proof of such.

(Pet. Br. pp. 22-23).

For example, Co-Petitioners

contend that they will hire a certified transfer station operator as manager of the facility, but

Mr.

Lowe admitted that he currently has “no clue” who will be the operator ofthe facility. (C.00202,

pp.

59).

Additionally, Co-Petitioners promises to hire an emergency response contractor to

identify, test,

isolate

and

haul off materials that

are

deemed

hazardous, but Co-Petitioners

have

not

yet determined who

that

will

be

or

what

exactly the contractor will be

required to

do

with

hazardous material.

(C.00180,

pp.

32-33).

Finally,

the Applicant

asserts that he

will adequately

control

vectors

on

the

site,

but

there

is

no

commitment

yet

for

any

type

of vector

control.

(C.00185,

p. 96).

It is

especially troubling that Mr.

Lowe expected the County

Board

to

trust him to

fulfill

the

promises

that

he

made because

Mr.

Lowe

has no

experience

in

running

a

transfer station

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facility and

apparently was

not

interested enough

in his

own facility to read

the application that

he

filed and

signed.

(C.00203,

p.

48)

It

is even

more troubling that

Mr.

Lowe promised to

have

his

entire

staff trained

in waste

screening, health and

safety protocol and

emergency response

in

light

of the

fact

that

Mr.

Lowe

himself admitted

that

he

would

not

know

what

to

do

in

an

emergency

situation.

(C.0020

1,

p.

19).

Mr.

Lowe’s

own witness,

Mr.

Gordon, admitted

that

“experience

is

a

very

important component of making

sure that

the facility operates properly.”

(C .00186,

p. 28).

Because of Mr.

Lowe’s lack of experience in

the transfer station

business and

the

fact that he

has failed

to

create

a plan of operations that

will adequately protect

the public

health,

safety and

welfare, it was

entirely appropriate for the McHenry County Board to

find that

Lowe Transfer, Inc. failed to satisfS’ criterion (ii).

III.

THE

MCHENRY COUNTY BOARD’S DECISION WITH RESPECT

TO CRITERION

(iii) IS AMPLY SUPPORTED BY THE EVIDENCE.

Co-Petitioners

devote

substantial

time

and

effort

to

discussing

the

qualifications

of its

own witnesses,

Larry Peterman

and

Frank

Harrison, and

attempting

to

discredit

the Village of

Cary

and

Bright

Oaks

Subdivision

witnesses.

However,

when

reviewing

a

decision

under

a

manifest

weight

of the

evidence

standard,

the reviewing

court may not

reweigh

evidence

and

may not reassess the credibility of witnesses.

Worthen

v.

Roxana,

253

Ill.App.3d

378,

384,

623

N.E.2d

1058,

1062

(5th

Dist.

1993);

Wabash,

198

Ill.App.3d

at

392,

555

N.E.2d

at

1085.

Therefore,

Co-

Petitioners’

argument

that

his

witnesses

were

superior

and/or more

credible

is

irrelevant.

After

hearing

testimony

of

all

the

witnesses over

the

course

of

11

days,

no

basis

exists to challenge the decisions ofthe Mcflenry County Board as to

the credibility or superiority

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of each witness.

The Mdllenry

County Board

had the clear prerogative to

believe

whomever it

chose

to believe.

Co-Petitioners

hinge

their

argument

that

the

transfer

station

is

compatible

with

surrounding

property

by

looking

at the

zoning

of the

surrounding

properties.

However, Co-

Petitioners

failed

to

take into account

the

actual

and

planned

uses of the surrounding

property.

The

Plote

property was,

during

the

siting

hearing process,

being

zoned

residential

and

being

developed as residential property, rather than industrial (as it was previously zoned).

(C.04057-

7235).

The

McHenry

County

Conservation

District

Hollows

Conservation

Area

was

zoned

industrial,

but

it was reclaimed

and

devoted

to

conservation

and

recreational open

space

uses.

Co-Petitioners

did

not

examine

or

consider

the

impact

of the

transfer

station

on

the

Kaper

development across the street.

(C.0O205, p.

9,

15).

Finally,

testimony was given that the trend in

surrounding

area was to

be

a

residential

and

not

heavily

industrial,

according

to

the Village of

Cary Comprehensive Plan.

(C.00205, p.

21; C.00402-403).

Co-Petitioners’

experts clearly

did

not take these

actual uses

into

account when reaching

their conclusion

that

the transfer

station

was

compatible

with

the

surrounding

property.

The

applicant, Mr. Lowe

himself,

acknowledged

that

the Village of Cary

was becoming

a bedroom

community.

(C.00205,

p.

11).

Testimony

regarding the proposed landscaping,

which

the Co-

Petitioners

claim was

designed

to

protect

the

surrounding area, raised

doubts

as

to

the actual

protection given.

For example, although the Bright Oaks subdivision

was supposedly

protected

by

a

berm,

testimony

showed

that

it was

not,

as the second

story

of the homes

were

actually

visible

above

the

berm

from

the

transfer station

site.

(C.00204,

p.

24).

Co-Petitioners’

own

experts

admitted

on

cross-examination

that

they

would

not

recommend

having

the

transfer

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station,

or any

heavy industrial use, next to a residential neighborhood.

(C.OO 194, p. 14).

Mr.

Peterman,

Co-Petitioner’s

witness,

also

agreed

with

the Village

of Cary’s

City Administrator,

Cameron

Davis,

that

it

was

not

preferable

to

put

a

transfer station at the gateway to

Cary.

(C.00193, p. 96-98).

Co-Petitioners also argue

that Mr.

Peterman

set forth 14 factors, which demonstrated that

the transfer facility met the first

part

of criterion

(iii),

and

that since these factors were not

contradicted

by

the Village

of Cary,

the application was sufficient as to compatibility.

Again,

Co-Petitioners

fail

to

acknowledge

that

the

McHenry

County Board has the ability

to

make

credibility

determinations,

and

to

believe

or

disbelieve

any

testimony

given.

Tate,

188

Ill.App.3d at 1022.

Furthermore,

Mr. Petterson testified as to the incompatibility of the transfer

station, notonly under the present uses, but with the future uses under the

McHenry

County 2010

Plan and the Cary

Comprehensive Plan, which was never contradicted.

(C.00208, p. 97).

Co-Petitioners’

argument

that the transfer station was compatible with the surrounding

property was essentially

that

it was

proper

under

the

current zoning scheme.

(C.00193, p.

125).

This

ignores the

actual

and

future

surrounding uses of the property, and

in examining the actual

and

future uses of the property, the McHenry County Board’s decision against the compatibility

ofthe transfer station withthe surrounding

area

was fully supported.

The

second

part of criterion (iii)

is that the transfer station is located so as to minimize

the impact on property values.

First of all, Co-Petitioners’ own expert witness, Mr. Frank

Harrison, was only

able

to

find

one

comparable study

relating

to

the proposed

location of this

transfer station,

although

his

report included

eight

stations.

Such

a

lack of comparable studies

indicates that

an

inherent

incompatibility

may

exist.

(C.00220,

p.

33).

Co-Petitioners’

own

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witness

agreed, and

stated that he was not

surprised that

there were no

other comparable studies,

since transfer stations are essentially

an

industrial use, thus

implying

that industrial

uses

do not

belong next to residential neighborhoods.

(C.00l93, p.

115).

However,

the

one

comparable

study

that

did

exist,

pertaining

to

the

Princeton Village

subdivision

adjacent

to

the Northbrook Transfer Station,

in

fact directly supports the McHenry

County Board’s decision that this facility would

be incompatible

with the surrounding area, and,

therefore, in turn, adversely impact property values.

Co-Petitioners’ expert attempted to show

that the houses closest to the transfer station appreciated at the same rate as those further away.

(C.00193,

p.

72).

However,

what

was

“close”

and

what

was

“far

away”

were

apparently

arbitrarily decided.

In addition, Mr.

John

Whitney testified that Applicant’s appraisal expert did

not remove

all

other significant influences

on the property value so

as to

sufficiently isolate

the

actual effect of a

transfer

station

on

adjoining

property values.

(C.00220,

pp.

30-31).

In fact,

Mr. Harrison admitted that

if the entire neighborhood was affected by the transfer station, then

the appreciation rates of the “close” and “faraway” properties would be similar, which is exactly

what

his

report

concluded.

(C.00l 93,

p.

72).

Mr.

Harrison

also

failed

to

acknowledge

the

significant

fact

that

Princeton

Village

was

built

after

the

transfer

station,

thereby

taking

the

transfer station into account during the initial sales and development of the property.

Therefore,

there

is sufficient

evidence for the McHeniy

County Board

to discredit the comparison study

by

Co-Petitioners which purported to

show no significant impact on property values.

However,

what the

study

did

show,

which

was pointed

out

by

Mr.

Klasen

at the siting

hearing

and

during

the Committee’s

deliberations was that many of the

properties

in

the

Princeton

Village

area

had

appreciated

very

little,

or,

worse

yet,

had

actually

depreciated

in

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value.

(C.00220, p. 88; C.07237, pp. 16-18).

The average appreciation rates in the Princeton

Village

study

(approximately

1)

were

significantly

lower

than

an

average

expected

appreciation

rate

in

Cook

County

of 5-6,

or,

more importantly,

the

16

rate

found

in

the

neighboring Northbrook area.

(C.00220,

p.

88).

Mr.

John Whitney

also

criticized Mr.

Harrison’s

report.

Co-Petitioners attempt

to

discredit

Mr. Whitney

as he did

not

make any

independent study

of the transfer station

and

had

no opinion of the impact on property values and thatsomehow Mr. Whitney’s failure to perform

an

independent study

or have such

an opinion made his critique of the methodology employed by

Applicant’s appraisal

witness unbelievable.

(Pet.

Br.

p.

36).

However, Co-Petitioners

carry

the

burden

of proof to show that the transfer

station

is compatible with the surrounding area, and that

impacts

on

surrounding property

sales

are

minimized.

Waste

Management

of Illinois,

Inc.

v.

Pollution

Control

Board,

123

Ill.App.3d

1075,

1083,

463

N.E.2d

969,

975

(2d

Dist.

1984).

Further, Mr. Whitney was not required to testilS’

as to a final quantitative opinion on the effect of

the transfer station on property values. Mr. Whitney’s testimony that Co-Petitioners’ witness did

not

properly

study potential

property value impact,

along

with his

reasons for believing

so, was

sufficient.

The

local

siting authority has

the

sole

decision-making authority,

and

it has

been

determined that

expert testimony showing deficiencies under the statutory criteria is sufficient to

deny siting

approval.

CDTLandJ1I1 Corp.

v.

City of.Joliet,

1998WL 112497,PCB 98-60 (March

5,

1998).

Again, it

is

up to the

McHenry

County

Board to

make credibility

determinations,

and

give Mr.

Whitney’s testimony the weight it felt it deserved.

Tate,

188 Ill.App.3d

at

1022.

Finally,

Co-Petitioners

rely

on

two

letters

solicited

from

Princeton

Village

property

owners to

attempt

to demonstrate a lack of impact on

neighborhood property values.

(Pet.

Br.

p.

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33).

However,

these

letters

do

not

support

Co-Petitioners’

case because

there

is

no

objective

support

for the assertions contained in them.

There

is no

determination of what their statements

to the effect that property values had “increased” meant, in that they could be referring to the 1

increase

in

valuation, rather than the normal appreciation

rate in the

area.

Public comments

are

not entitled to the

same

weight as expert testimony submitted under oath and subject to cross-

examination.

CDT,

1998

WL

112497 at

*5~

The McHenry County

Board could determine how

much weight to give these comments,

and

its determination should not be reversed. The lack of

support and

lack of cross-examination to

determine the

writer’s intent weakens

the credibility to

be

given to these

letters.

Again, the McHenry County Board has the power

to determine

credibility.

Tate,

188 Ill.App.3d

at

1022.

For the foregoing reasons, the McHenry County Board’s decision that the transfer station

was incompatible withthe surrounding area

was

not against themanifest weight ofthe evidence.

IV.

THE

MCHENRY COUNTY BOARD’S

DECISION WITH RESPECT

TO

CRITERION

(v)WASNOT AGAINSTTHEMANIFESTWEIGHTOF THEEVIDENCE.

The testimony at the local siting hearing clearly established that the plan ofoperations of

Lowe

Transfer

Station,

Inc.

was

not designed to

minimize

the danger to

surrounding areas

from

fires, spills or other operational accidents, all as found by Mr. Thomas, Mr. Nickodem

and

Mr.

Sutherland.

(C.00189, pp. 9-10, C.002l5, p.

55,

C.00218,

p.

80).

Co-Petitioners contend that the facility is designed to protect the groundwater because the

floors of the

facility will

be

concrete,

and

because

the facility will

have a

geomembrane liner

beneath it.

(Pet.

Br. p.

39).

However, these features in and ofthemselves may not be

adequate to

prevent groundwater contamination,

which

is

a

serious concern.

It is

undisputed that

the liner

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spans only

tipping floor and tunnel

(C.001 87, p.

11), so if any spills occur elsewhere on the site,

such as the ramps or the apron, the

spill

will

go

directly

into

the

storm

water collection

system,

which, in turn, would flow into the groundwater in the area.

This is particularly problematic

because there are no valves or other devices designed to shut off the flow of water if such a spill

or leak does occur.

(C.0018l,

pp.

82-83).

Further,

there is

also

no

curbing

to

stop

the flow of

contaminants onto

neighboring properties, save for a curb

separating Lowe Transfer Station from

Lowe

Enterprises,

Inc.

(C.00215,

pp.

18-19).

Therefore,

adequate

safeguards

have

not

been

proposed

to

stop

contaminated run-off from

flowing

into

The

Hollows

or Plote

Property.

As

such, the plan of operations will not minimize the danger ofspills to neighboring property,

and

criterion (v) is not satisfied.

The plan of operations

is also not designed to minimize the danger of operational

accidents because while Co-Petitioners contend that the internal traffic flow is designed in a safe

manner (Pet.

Br.

p.

40), this was directly refuted

by

Mr. Nickodem, who testified that the traffic

pattern

designed

by

the

Applicant,

which

allows

for merging

traffic,

can cause back-ups

and

even accidents.

(C.00214, pp. 33-34).

The risk of accidents on the site is increased because

there is not enough room for vehicles to maneuver around that site.

(C.00214, pp. 34-35,

45-51).

Because

the

site

is

not

large

enough,

and

because

of the

designated

traffic

patterns, there

are

likely be to bottlenecks and possible collisions at the entrance of the facility as well as large

traffic

back-ups.

(C.002 14, pp.

50-51).

Therefore, the internal flow of traffic is

not designed

to

minimize the danger ofoperational accidents, but actually will contribute to such accidents.

Co-Petitioners

also

contend that their facility has a plan of operations that minimizes

the

danger of fires

because they have a pit

into

which

burning debris

can be

pushed, a sand pit

and

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an alarm

system (Pet. Br. p. 40-41).

Apparently,

Lowe

believes

that such features are all

that

is

necessary

to

adequately

protect

against

fires

inside

the

facility.

However,

expert

testimony

established

that this

was clearly inadequate.

Co-Petitioners

assert

that

it was not

necessary

to

have sprinklers

in this

facility because sprinkler systems are

“not a standard design feature in the

solid

waste

industry.”

However,

Co-Petitioners

fail

to

point

out

that

because of the

facility’s

location

and

certain

operations

within this

facility,

it

is

at

a

much

greater

risk

of fire.

Mr.

Nickodem explained

that the

risk

of fire

was

greater at

this

facility because of the

vegetation

directly adjacent to the facility in The Hollows. (C.00215, pp. 32-33). A fire is also more likely

to

occur at this

facility because the Applicant

has decided to fuel

its

vehicles

inside the transfer

station.

(C.00215,

p.

30).

Mr.

Nickodem explained that

it

is

quite

possible

for

fueling

in

the

building

to

cause a

fire because

a front-end loaders

often scrape

the

floor,

which

could

cause

sparks

that

ignite

the

fuel.

(C.00216,

p.

28-29).

This

is

precisely

why

transfer

stations

are

typically

designed

so

that

trucks

are

not

fueled indoors.

Id.

Therefore,

while

it may

not

be

standard to

have a sprinkler system

in a transfer station,

it is reasonable for the McHenry County

Board to conclude

that a sprinkler system would be necessary

to minimize

the danger of a fire in

to this facility.

Co-Petitioners

point out

the fact that

fueling will

occur

inside the transfer station

as

a

positive

feature

of their

plan of

operations

(Pet.

Br.

41-42).

However,

Co-Petitioners

fail

to

acknowledge

or even consider

that

fueling inside

the transfer station

will actually increase

the

risk offires,

which is

why transfer stations do not

fuel

vehicles inside

buildings.

(C.00216,

pp.

24-25, 28-29).

Because of the increased risk of fire, it is clear to see

why it is not beneficial, and

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in

fact

actually

detrimental,

to

propose

a

plan

of operations

that

includes

indoor

fueling

of

vehicles.

Although

Co-Petitioners

point

out

that

Mr.

Nickodem

stated

that

it

is

rare

for

fire

protection

services

to

come

to

a

waste

facility to

assist

in

a fire,

Co-Petitioners

have failed

to

point

out

the

testimony

of

other

witnesses

which

established

that

fires

do,

in

fact,

occur

at

transfer stations.

In fact, Applicant’s own witness testified that he

has known of fires

occurring

in transfer stations (COO179,

p.

75).

Additionally, Mr. Nickodem

testified

that there

is a

potential for fires

to

occur in transfer stations, and personally knows of one transfer station

that

actually burned

down

as a result of a fire.

(C.002 16, pp. 13-14). Because of the danger of fires,

Mr.

Nickodem testified that transfer facilities

“need to

have fire suppression systems in

place to

be

able

to

handle

that

occurrence.”

(C.00216,

pp.

14).

With

respect

to

the

Lowe

Transfer

Station,

a

fire suppression system

does not

exist,

as the facility

is

not

only

lacking a

sprinkler

system,

but is also

lacking a storm water detention pond,

from which water can be drawn to help

combat a fire if necessary. (C.00l79, pp.

78-79).

Furthermore, there are no

procedures proposed

concerning

who to

notify

in

the

case of a

fire.

(C.00 179,

pp.

70-71).

Because the

evidence

clearly

showed that

the

facility’s plan of operations was not designed

to

minimize

the danger of

fires,

the County Board wasjustified in

finding that the Applicant failed to satisi~

criterion (v).

A

review

of

industrial

Fuels

establishes

that

while

the

fire

protection

services

with

respect

to

the

facility

at

issue

in

that

case

were

clearly

adequate,

the fire protection

services

proposed for the

Lowe

Transfer

Station are clearly inadequate.

This

is

true because the facility

in

industrial Fuels

was equipped with a fire suppression system matched to the type of fire that

might occur and the specific location ofsuch a fire, as well as a comprehensive sprinkler system.

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227 Ill.App.3d at 537, 592 N.E.2d at 152. TheCourt also noted that “fire

hydrants are adjacent

to the site, which is located close to fire, medical,

and

police services,

and

all necessary utilities

are available,

including

water, sanitary sewer, storm

sewers,

natural

gas

and

electricity.”

Id.

In

this case, not only is the facility not equipped with a sprinkler system, but there are no nearby

fire hydrants or other sources of water, which is why the Applicant’s own

witness suggested that

a fire truck would have to transportwhatever water

was necessary to fight a fire.

(C~00179,78-

79).

Based

on

all of the features of an

adequate

fire protection system

that

are missing

in the

Applicant’s

plan

of

operations,

the

McI-Ienry

County

Board

appropriately

found

that

the

Applicant failed to satisfy criterion (v).

Co-Petitioners

also

contend

that

the

facility

is

designed

to

minimize

the

danger

of

accidents because there is an emergency access gate into the facility (Pet.

Br.

41).

However, Mr.

Gordon and Mr. Zinnen conceded that an easement has not yet been dedicated for that purpose,

and

they

do

not

know

if

a

dedicated

easement

will

be

obtained.

(C.OO 186,

pp.

49-51).

Furthermore,

Mr. Nickodem testified that he did not believe that any emergency vehicles would

be

able to

get into

the facility from the emergency access point as trucks

would be blocking that

gate

due

to

the

small

size

of the

site.

(C,00214,

pp.

56-57).

As

a

result,

the access

gate

is

questionable at

best.

Even assuming

that

the proposed

emergency

access

gate will

be

properly

dedicated, and will be able to

be utilized effectively by emergency vehicles, this does not create a

plan of operations that

is

designed to

minimize the danger of spills,

fires

and

other operational

accidents because,

as

noted

above,

there are

many

other

problems

with

the

facility’s

plan

of

operations that will not be remedied simply by quick and easy access

to the facility.

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For the reasons set

forth

above,

as well

as those

contained in

Section

II,

the Mdllenry

County

Board

had

ample

evidence

upon

which

to

conclude

that

the

plan

of operations

with

respect

to

this

facility

was

not

designed

to

minimize

the

danger

of

fires,

spills

and

other

operational

accidents.

Consequently,

the

McHenry

County

Board

appropriately

denied

Mr.

Lowe’s application for siting approval on this criterion.

V.

THE MCHENRY COUNTY BOARD’S IMPOSITION OF A “HOST FEE” WAS

LAWFUL.

In the present case,

the

Co-Petitioners’

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 of that denial,

the Applicant will clearly

not be

required

to pay any

“host fee.”

Because any decision by this Board as to whether that 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

11l.2d

399,

419,

564

N.E.2d 1196, 1205 (1990).

However, ifthe Board decides to address this issue,

it is clear that

the imposition of the host fee was lawful

and authorized.

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 of this Section and as are

not inconsistent with regulations promulgated by the Board.”

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

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conditions

of that agreement to

be

disclosed

and

made a part of the hearing record.

415

ILCS

5/39.2(e).

Co-Petitioners

argue

that

Section

39.2

does not

allow for the assessment of fees

against

an

applicant, and

that

it does not grant authority

to

require financial responsiblity.

(Pet.

Br.

p.

48).

However,

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 ConcernedAdjoining Owners

v.

Pollution

Control

Board,

288

Ill.App.3d

565,

535,

680 N.E.2d 810, 817 (5th Dist.

1997).

Under

Section

39.2(e),

the

McHenry

County

Board

was

clearly

authorized

to

examine

the

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

and impose such conditions

on approval ofthe transfer station.

Co-Petitioners argue

that there was

no discussion by

the McHenry County Board prior to

the adoption of the host fee agreement.

This is plainly wrong. Not onlydoes theboard not have

to

conduct any debate

so

long as the members have

an opportunity

to

review the record prior to

the vote

(Slates

v.

Illinois

Landfills,

inc.,

1993

WL

387195

(IPCB

Sept.

23,

1993),

but

a

discussion did in fact take

place. The

McI-Ienry County

Landfill Siting Committee discussed the

imposition

of

the

host

fee,

and

decided

that the $1.90

fee was reasonable and appropriate.

(C.07237, pp. 29-36).

Furthermore,

Mr.

Lowe

himself,

specifically

agreed

to

accept

a

condition

of a

host

community payment equal to what the evidence showed was necessary to defray the impact of

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the facility on the County.

(C.00203, pp.

26, 28).

Co-Petitioners

do not

acknowledge this

fact

in its

brief.

In fact, Mr.

Lowe agreed

to

the

host

fee structure adopted by

the McHenry County

Board.

(C.00203,

pp. 25-28).

Accordingly, the host fee imposition as a special condition ofthe approval ofthe transfer

station was lawful and authorized.

VI.

THE

MCHENRY

COUNTY

BOARD

DID

NOT

MISAPPLY

THE

UNNUMBERED

CRITERION.

As is

made clear by section 39.2(a), the McHenry County

Board was able

to consider

“as

evidence

the

previous

operating

experience

and

past

record

of convictions

or

admissions

of

violations of the

applicant (and

any

subsidiary

or

parent company)

in

the

field of solid

waste

management

when

considering

criteria

(ii)

and

(v)

under

this

Section.

415

ILCS

5/39.2(a).

Despite the clear language of this statutory

provision,

Co-Petitioners contend that

the McHenry

County Board had no authority to consider Mr.

Lowe’s lack of experience.

The

cardinal

rule of statutory

construction

is

to

give statutory

language

its

“plain

and

ordinary

meaning.”

Vicencio

v.

Lincoln-Way

Builders,

inc.

204

Ill.2d

295,

789

N.E.2d

290

(2003);

Paris

v.

Feder,

179 Ill.2d 173,

177,

688

N.E.2d

137

(1997).

Despite this

well-settled

rule, Co-Petitioners contend that the language in 39.2(a) that allows county boards and municipal

governing bodies to consider the “previous operating

experience” of an

applicant does not in fact

mean what

it actually says.

Rather, Co-Petitioners contend that

section 39.2(a)

does not

allow

the County Board to

consider Mr.

Lowe’s “lack of experience.”

However, the plain language of

section 39.2(a) does allow county boards to

consider whatever experience an operator may have,

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whether it is good, bad,

a little, a lot or none at all.

Any other interpretation ofthat phrase would

defy logic and reason and

contradict the cardinal rule ofstatutory construction.

Co-Petitioners

also

seem

to

erroneously

suggest that

the McHenry County Board denied

siting approval and found that criteria (ii) and (v) were not met solely based on the “previous

operating experience”

and

“prior operating record” ofthe Applicant.

However, there are no facts

to

support

such an

assertion, and,

in

fact, when

viewed as a whole,

the evidence

clearly shows

that

the

County

Board

considered

the

unnumbered

criterion

only

as

one

factor

in

deciding

whether criterion

(ii)

and

(v)

were

met,

and

not

as the

sole

determinant

with

respect to those

criteria.

When providing

an

explanation of the unnumbered criterion,

Mr.

Heisten specifically

stated that County Board members did not evenhave to consider this criterion, andsimply polled

the Board

members

to

determine if,

in

fact, they

did

consider the

Applicant’s prior

experience

and

prior

operating

record when

deciding

criteria

(ii) and

(v).

(C.07244,

p.

19).

The

Board

members were never told that they

could

solely

base

their decision on those factors,

but,

rather,

were simply told that they may ormay not take them into consideration.

id.

The statements made by Mr. Klasen at theRegional Pollution Control Facility Committee

meeting

establish

that

the

Committee

members

clearly

were

not

basing

their

decisions

with

respect to criteria (ii) and (v) solely on Mr. Lowe’s lack of experience.

In fact, when Mr. Klasen

stated that he thought criteria (ii)

and (v) were not met, he did not even mention Mr.

Lowe’s lack

of experience but, rather, found that those criteria were not met because the facility was located

next to The Hollows, and

because he was concerned about spills that may affect the Hollows

and

other

areas

(C.07237,

pp.

15,

20),

Because

there

is

no

evidence

to

support

Co-Petitioners’

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contention that

the only

basis for the

County

Board’s decisions with respect to

criteria (ii)

and

(v), their argument should fail.

VII.

THE

MCHENRY

COUNTY

BOARD’S

DECISION

PROPERLY

SET

FORTH

THE

REASONS FOR ITS DECISION IN ACCORDANCE WITH SECTION 39.2 AND THE

MCHENRY COUNTY ORDINANCE.

For some reason,

Co-Petitioners fail to address in their brief paragraphs 4(d) and 4(e) of

their underlying Petition.

This

lack of discussion

bears

out the absolute ridiculousness of Co-

Petitioners’

argument.

In addition,

claimed grounds

for appeal

not

pursued or argued in a brief

results

in a waiver of those issues.

See

Ill.

Sup.

Ct. Rule 34l(e)(7);

Concerned Boone Citizens,

Inc.

v.

MIG.

Investments, Inc.,

144

Ill.App.3d

334, 344,

494 N.E.2d 180,

186

(2d Dist.

1986);

Albert

Warner

v.

Warner Bros.

Trucking,

Inc.

and Urbana

& Champaign Sanitary District,

1994

WL

163958,

PCB

93-65, n.3

(April

21,

1994).

Therefore,

Co-Petitioners

have

waived these

issues.

However, even if the Pollution Control Board addresses these issues, Co-Petitioners have

failed to demonstrate that the McHenry County Board’s decision was improper.

Paragraph 4(d)

alleges

a

violation of Section

39.2(e)

of the

Act,

which

states that

the

decision of the County Board

must be

in writing

“specifying the reasons for the decision.”

415

ILCS

5/39.2(e).

This argument has no merit, as case law clearly shows that so long as a decision

is

in

writing

and

a

record has been

made of the decision, neither

a

detailed statement

finding

specific

facts, nor a detailed explanation of the relationship between the

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.

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The McHenry County Board’s decision denying the siting approval for the transfer station

was

set

forth in Resolution No. R-200305-12-104, which contained a vote on each criterion.

A

voluminous record of the hearing, which

took place

over

the course of

13

days,

resulting

in

a

transcript

of approximately

4,000

pages.

Furthermore,

discussions

by

the

McHenry

County

Landfill

Siting Committee regarding each criterion took place.

Under existing Illinois

and PCB

caselaw, it

is

clear

that the

record supports the determination and

Resolution of the

McHenry

County Board,

and Co-Petitioners’ request to reverse the determination ofthe Board for failing to

set forth its reasons for its determination should fail.

Paragraph

4(e)

of

Co-Petitioners’

petition

alleges

a

violation

of a

County

ordinance;

however,

Co-Petitioners fail to even mention this

argument in their brief

Even if this

argument

is

considered,

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).

Therefore,

Co-Petitioners’

argument is

inappropriate

and

should be denied.

However,

even it the Pollution

Control Board

decides to

examine this

issue, it

is

clear

that the County

Board’s

decision is

in

accordance with the

McHenry County

siting ordinance.

All the ordinance

requires

is

a decision

in writing in accordance with

Section 39.2

of the

Act.

(Mdllenry

County

Regional

Pollution

Control Facility

Siting

Ordinance No.

0-9412-1200-88;

attached to Lowe’s Petition for Hearing as Exhibit B).

Section 39.2 does not require a decision to

be

set forth detailing each and

every consideration ofthe Board in denying the application.

See

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discussion

supra.

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.

Therefore,

Co-Petitioners’

argument that the Mdllenry County Board’s determination is

contrary to the local

McHenry ordinance is

inappropriate and without merit.

VIII.

CONCLUSION

For the reasons set forth above, the Mdllenry 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: September 2,

2003

Respectfully

Submitted,

RESPONDENT COUNTY BOARD

OF MCHENRY COUNTY, ILLINOIS

By:

~

~A,1x~)

‘One of its~ftorneys

Charles F. Heisten

Heather K. Lloyd

Timothy J. Leake

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

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