RE~~IV~D

CLERK’S

OFFICE

SEP

232003

BEFORE THE

CITY

COUNCIL

CITY OF KANKAKEE, ILLINOIS

STATE OF ILLINOIS

pollution

Control

Board

INRE:

)

THE APPLICATION FILED ON MARCH 7, 2003

)

OF TOWN AND COUNTY UTILITIES

INC.

)

and

KANKAKEE REGIONAL LANDFILL,

L.L.C.

)

for SITING APPROVAL

)

OF A POLLUTION CONTROL FACILITY.

)

FINDINGS OF FACT AND CONCLUSIONS

LAW

OF THE

CITY OF KANKAKEE.

The City Council

of the City of Kankakee, as the siting authority pursuant

Section 39.2 ofthe Illinois Environmental ProtectionAct,

415 ILCS 5/39.2.(hereinafter

“The

Act”) has

received

application

for siting

approval

of a Regional

Pollution

Control

Facility

and

has

thereafter

conducted

siting

hearing

pursuant

the

application and The Act.

Pursuant to the Act the City Council ofKankakee makes the following

recitals:

NOW

THEREFORE,

the

City

Council

of the

City

of Kankakee

being fully

advised of the premisses

herein

does hereby make the following findings

of fact and

conclusions oflaw.

I. Preliminary Findings:

The

City

Council

of the

City

of Kankakee

has

jurisdiction

consider

the

application filed herein pursuant

to Section 39.2 ofthe Environmental

Protection

Act

based

upon

the

fact

that

the

proposed

site

consisting

approximately 400 acres is located within the municipal boundaries ofthe City

ofKankakee.

A public hearing was held pursuant

to the Act and City of Kankakee Pollution

Control

Facilities

Siting

Ordinance

(hereinafter

“the

Ordinance”)

and

the

procedures

set

forth

therein.

The

applicant filed

herein

application,

corrected, which contains all of the information required

39.2 (C) of the Act

and the applicable

ordinance.

Town & County Utilities, Inc., and Kankakee Regional Landfill, L.L.C. properly

filed the required number of its

application.

The application

consists of eight

volumes, supplemental drawings, core samples and core sample observation logs

and modeling data.

EXHIB~T

-Page

The required filing fee of $100,000.00 has been deposited with the City Clerk of

the

City

of Kankakee.

The

City

Clerk

has

made

copies

of the

application

available for public review and copying. The City further provided a copy ofsaid

application to Kankakee County at

no expense.

A public

hearing

the

application

commenced

June

24,

2003

and was

concluded

on June

28,

2003 in the City of Kankakee City Council

Chambers,

Kankakee Illinois.

The public hearing was held no sooner than 90 days but no

later than

120 days from and after the filing ofthe application with the

City on

March,

2003.

All

published

and written notices for the public hearing were

duly and properly given as required by the Act and by the Ordinance. The public

hearing was presided

over by

Robert

Boyd,

a licensed

attorney

who was not

otherwise

employed by nor connected with any ofthe parties herein.

All

notices and publications required by the Act and the Siting Ordinance were

duly and properly

given and no

objection has been

made to the notices which

have

been given nor has

any party argued or offered evidence indicating

any

deficiency in said notices.

Said hearings

were

held pursuant

to the applicable

ordinances

of the

City of

Kankakee

and

the

rules

and

regulations

adopted

pursuant

and

specifically

pursuant

to the City of Kankakee Pollution

Control Facility Siting Ordinance,

(hereinafter referred to as “Siting

Ordinance”).

During

the

hearings

all

persons

desiring to

participants

the

hearing,

including

members

of the

public

were

provided

opportunity

present

testimony,

offer exhibits,

be represented

by counsel,

cross-examine witnesses

and provide public comment. Prior to the hearing individuals

and entities filed

written

comments

and those

comments

are

specifically

included

herein as a

portion of this record.

Persons

who appeared and participated as objectors were:

Kankakee

County,

Waste Management

of Illinois, Inc. and Byron Sandberg.

During said hearings testimony was offered by the applicant and objectors.

Said

testimony was

under oath and subject to cross examination.

Additional

oral

public comment was received which was neither under oath nor subject to cross

examination.

-Page

Following the final day of hearings

additional public

comments were accepted

through July

29,

2003.

In addition

thereto,

the applicant and

objectors were

requested

to submit

proposed findings,

briefs and argument

by July

29,

2003.

The

City

also

sought

input

from

independent

geologist,

Mr.

Ralph

Yarborough,

PhD

Geo-Technical

Associates,

Inc.

whose

final

report

was

received on July

28,

2003 and is expressly incorporated herein.

At the public hearing, each witness was placed under oath and was subject to

cross examination by those participating in and attending the hearing; with the

exception ofindividuals who chose to make

unsworn public comments.

A transcript of the hearing was made and is expressly incorporated herein.

The City ofKankakee received documentary evidence including maps, drawings

and photographs

from the applicant and other participants.

Those exhibits are

also expressly incorporated herein.

Also offered and accepted into evidence are

the written transcripts

of a previous

siting hearing held in connection

with a

previous siting application.

The record ofthis public hearing is

sufficient to form the basis of an appeal of

any decision of this City Council

in accordance with Section 40.1 of the Act.

Q..

amendment

the

application

was

filed

during

the

course

of these

proceedings.

R..

Written public

comments

and other filings were received

from the applicants

and the

others

through

July

29,

2003.

Said public

comments

and

filings are

expressly incorporated herein.

Motions

were

filed

various

objectors

prior

the

commencement

of the

hearing. Those motions are

as follows:

Motion to Disciualifv Alderman JoAnne Schwade filedby Waste Management

and

joined

Kankakee

County.

Said

motion

was

denied

by the

Hearing

Officer.

The

City Council

finds that

the

ruling was correct and

cites

Section

39.2(d)in support ofthe Hearing Officer’s Ruling. The City Council further notes

that

the

evidence relied

upon in

support

of the

motion

explicitly

quotes

Ald.

Schwade indicating that she intended to await the hearings

to decide the issue

and desired

additional evidence

to determine her final position.

-Page

II. FINDINGS REGARDING

CRITERIA.

Now be it further resolved by the City Council ofthe City of Kankakee that the

following expressed findings regarding said application are hereby made,

The

City

Council

is required

to make findings

regarding

each

of the

specific

criteria provided in

Section

39.2

of the Act.

is based

upon these criteria that the

following findings

offact are found to have been offered into evidence.

Criteria

The

applicant

has established

that

the facility

is necessary

accommodate the waste needs ofthe area it is intended

to serve.

FINDINGS OF FACT

Evidence in support

of this

finding:

The

applicant

has

identified

service area

consisting

of the

City

Kankakee, Kankakee County and seven other counties located in Northeastern

Illinois and Northwestern

Indiana.

The designation

of the service

area was supported by the testimony

Phillip

Kowaiski,

a senior planner

with

Envirogen,

Inc., which

testimony

described in the following findings.

Based

upon

the

needs

of the

service

area,

the

facility

smaller

disposal capacity than

is necessary

for the area as described.

The

only

currently

operating

landfill

Kankakee

County

will

have

reached its capacity by 2005.

All

other operating landfills in the service area are

projected to reach capacity by mid 2009.

Based

upon said projections the City

of Kankakee will have few options available for the disposal of its waste

in the

near future.

The waste likely to be generated in the service area will increase overthe

30 years

due to the projected

increases in population.

Even considering

the

existing

and

anticipated

levels of recycling,

the

proposed facility is necessary to accommodate the waste needs ofthe area that

it is intended to serve.

-Page

Kankakee County argues

Kowaiski failed to consider the

siting of the

proposedaddition to the operating Waste Management facility. The City Council

takes

notice

of the

fact that

the

siting approval

of the

Waste

Management

facility was expressly reversed by the Illinois Pollution Control Board on August

2003 and that

at the time of this decision there is no application pending for

siting of said approval.

No testimony was offered to contradict the testimony of Kowaiski.

CONCLUSION OF

LAW

Based

upon

the

testimony,

the

exhibits

admitted

and

the

applicable

legal

arguments and the absence of competent testimony to the contrary, the

City Council

determines that the applicant has satisfied Criteria

Number One and this facility is

necessary to accommodate the waste

needs of the area it is intended

to serve.

-Page

Criteria

The applicant

has established

that

the facility is

designed and

located

and proposed

to be operated

so that

the public

health,

safety and welfare will be protected.

FINDINGS

OF FACT

Evidence

is support

of this finding:

Daniel

Drommerhausen,

senior

hydrogeologist

employed

Envirogen

Inc. testified

on behalf of the

applicant.

He testified

that

is a

licensed professional geologist ofthe State ofIllinois. Drommerhausen testified

that he had

conducted hydro geologic investigations

ofthe site in question. He

also reviewed regional hydro geologic investigatio~r~’oftheTlIir~oi~StateGeo1ogic

Survey, Illinois State Water Survey and the U.S. Geologic Survey.

It was his opinion that the site is located atop Silurian Dolomite bedrock.

He characterized the Dolomite as a major

variable aquifer whose productivity

is affected by glacial till and Pennsylvanian deposits overlying the bedrock. He

reviewed

174 private

well logs within

a two

mile area of the site.

He testified

that

the logs

did not contain useful hydro geologic information because of the

absence ofinformation regarding casing and sealing and the lack of appropriate

information

regarding well yield.

He did testify

that

the original

application was based

upon

19 borings

including one which penetrated

59 feet into bedrock. As a portion ofthe current

application additional borings have been compie~tad

whichincludaaaadditioual

24 borings two

of which were angle borings.

The current application includes

water level data from 36 additional monitoring wells, 81 additional permeability

tests. 37 packer tests were performed including tests in the competent bedrock.

59 slug tests

were performed including

50 in the bedrock system and

10 in the

competent bedrock.

According

all

of the

tests

which

were

performed,

Drommerhausen

found that the upper bedrock had an average hydraulic conductivity of 5.3x10

4 centimeters per second. He found that the competent bedrock had an average

hydraulic conductivity of 1.1

10—5 centimeters per second.

Drommerhausen

further opined that the potentiometric surface of the water in the bedrock was

significantly

higher than the

base

of the

proposed liner

throughout

the site.

Drommerhausen,

applying

“Darcy’s

Law”

determined that

the

groundwater

seepage velocity is 3.7 meters per year in the weathered portion ofthe dolomite

and .13 meters per year in the competent Dolomite

-Page 8-

testified

that

the

slightly

downward

vertical

gradient

the

Silurian

Dolomite between the weathered and competent zones will be reversed into an

upward gradient after landfill construction.

Drommerhausen

stressed

his

testimony

that

the

Applicant

had

employed a conservative

approach in modeling the hycirogeologic properties of

the site, by creating a model based

Dolomite which was thinner than that

found

the

site.

Using

model

with

thinner

Dolomite,

according

Drommerhausen,

demonstrates

conservative

approach

thinness

decreases the opportunity

for dilution

ofthe contaminants within the landfill,

thereby

tending

to project higher contaminant

concentrations

at the

point of

compliance.

Consequently,

even if the extremes for statistical deviations were

to occur, the landfill would,

nevertheless,

remain in compliance.

Drommerhausen further testified that the inward hydraulic gradient at

the site

ranges

between

and

20 feet of positive

hydraulic

head

difference

between the potentiometric surface of the water in the dolomite and the base of

the

landfill

liner.

significant that

neither

Mr. Schuh,

testifying

for the

County

nor

Mr.

Cravens,

testifying

behalf

Waste

Management,

contradicted this

basic finding.

Devin

Moose

testified,

professional

engineer,

behalf

of the

applicant.

He testified

regarding

the

design

and

proposed

operation

of the

proposed landfill.

Moose’s testimony is found as stated below.

Moose testified that the design is in accordance with all State and Federal

requirements and meets and in some areas exceeds all

applicable Federal and

State

standards.

That

compliance

includes

the

necessary

setbacks

for both

nearby airports.

Moose further testified that there was no impact

on wetlands

and is not in a fault area or unstable zone, not in a seismic impact zone and does

not impact any wild scenic rivers or historic and natural areas. Further the site

meets all minimum setbackrequirements from local water supply wells, roads,

highways, occupied dwellings,

schools retirement

homes and hospitals.

According to Moose, the design incorporates an inward hydraulic gradient

where the potentiometric surface forthe uppermost aquifer willbe substantially

higher than the maximum one foot ofleachate

allowed at the base

ofthe liner.

-Page

Moose also described the

composite liner system consisting of at least

feet of recompacted clay and a 60 mu, high density polyethylene liner.

Moose also described an option to include

a geo-composite liner

and double 60

mu. HDPE liners in sensitive

locations such as the sump areas

and v-notches.

The design also includes a leachate management

system, a gas collection

and monitoring system and a system for management ofstorm water. The storm

water

management

system

includes

4 wet

bottom

detention

basins

with

combined surface area of 26 acres. This will allow storm water to be discharged

gradually

into

Minnie Creek.

The system

also

assures that

storm water and

leachate will be separated to assure that no leachate will be discharged into the

storm water

system.

Moose

also

testified

regarding

the

operational

plan

for

the

landfill

including the measures to control litter,

odors, mud and other similar issues. He

described

daily

intermediate

cover

and

the

staffing

and

equipment

requirements.

He established that the fire protection plan was approved by the

City of Kankakee

Fire Department.

Moose’s

presentation

included

description

certain

engineering

enhancements that

exceeds minimum landfill requirements including a 12 foot

side liner, a structural

fill base on top ofthe physically competent bedrock and

underneath the liner system.

Moose testified that the closureprocess will involve the placement of final

cover ofa vegetative layer ofgrasses.

Post closure activities will include ground

water monitoring and leachate

collection for a period of 30 years

or until

such

time as the IEPA certifies leachate

management

no longer required.

Waste Management

of Illinois,

Inc. called

Stuart

Cravens,

a geologist.

was

Cravens

opinion

that

the

entire

depth

of the Dolomite

was

aquifer. He testified regarding the data he observed from 4 wells the penetrated

the Dolomite. He characterized the

area,

including the landfill,

as a fractured

bedrock aquifer to a depth ofat least 50 feet below the top ofthe bedrock. He was

critical of the applicant’s characterization

of the location and the extent of the

fractures in the Dolomite.

-Page

10-

Cravens

criticized the applicant’s

boring

logs as

containing

inadequate

information. He did acknowledge that the boring logs relied upon by him did not

contain geologicclassifications and that his logs were rounded to the nearest foot

while those ofthe applicant were stated to .1 feet. Cravens testified regarding the

fact that

he had conducted calculations based upon his borings but was lacking

missing

data

the interface

between the weathered

bedrock

and competent

bedrock.

Cravens also testified that

over 300

wells exist within

2 miles ofthe site.

Heconcluded that

more than half of the wells were drawing water from the lower

zone ofthe Silurian

Dolomite.

Kankakee County called Jeffery Schuh,

an officer ofPatrick Engineering

and a licensed professional engineer. Schuh, testified that there was insufficient

analysis to conclude that the design ofthe landfill was safe. He claimed that the

calculations conducted by the applicant failed to properly estimate the hydraulic

conductivity of the bedrock.

Schuh testified that while he supervised both Chris Burger who reviewed

an application by co-.objectorWaste Management for siting ofa landfill and Steve

Van Hook who had reviewed the prior application presented to the City, he had

no knowledge of the findings ofeither of those employees under

his

supervision.

Thus,

he was unable to explain the findings of approval by his employee of the

Waste Management siting application with similar hydro geologic conditions as

the

instant

site

nor

could

respond

questions

regarding

the

testimony

of Mr.

Van HoOk that

the previous

design was compliant

with this

criteria if the landfill was constructed as designed.

Mr. Schuh did not testify that the facility was not protective of the public

health safety and welfare, but onlythat he feltthere was insufficient information

to conclude that

the issue of

public safety was proven.

Dr. David Daniel was called for his opinions by the applicant. Dr. Daniel

is the

Dean of the

College of Engineering

of the

University of Illinois.

He has

extensive

experience

research

and

consulting

regarding

pollution

control

facility sites including nuclear waste sites and several federal

“super fund” sites.

Dr.

Daniel testified

that

had

conducted

a peer

review of the

hydro

geologic investigation,

the site’s proposed design

and the groundwater

impact

evaluation. He opined that the inward gradient design was “state of the art” and

would

assure

the

protection

of the

public

safety,

health

and

welfare

and

environment

He testified

that

the

construction

of the

facility,

as designed,

would be consistent

with the protection ofthe public health safety and welfare.

-Page

11-

He found that the groundwater impact study was extremely conservative

and further underscored

the protection

which the

design of the landfill would

provide.

further

testified

that

the

characterization

of the

bedrock

aquifer or an aquitard

was not essential to determine the safety of the landfill.

Rather

the

design

included

the

use

of the

inward

gradient

assuming

and

incorporating the assumption that

the bedrock was an aquifer.

Dr.

Daniel

further

testified

regarding

the

use

“double

liners”.

testified

that

the

use

of double

liners

can

counter-productive

due

the

possibility of damage to the liner during the installation ofthe secondary liner

and further the lack ofproof of any benefit to be derived from a double liner. He

testified that

the use of a double liner

was

of no

benefit

the design

of the

facility.

Addressing the concerns

of the Pollution

Control Board, in

its

decision

regarding the previous siting

application,

that the effectiveness of the inward

gradient

“is

compromised when

the

aquifer

lies

below the

foundation

of the

landfill”, Dr Daniel testified that the proper analysis required that the Dolomite

be considered in its entirety.

Once that

analysis

accomplished, he said, the

data resulting fromthat analysis discloses that thepermeabilites

ofthe Dolomite

are

high

enough

actually increase

the

upward driving

force

of the

inward

gradient.

Thus,

there is not issue

regarding downward vertical migration and

the issues raised

by the Pollution Control Board are not applicable

to this site

with this

design.

Questioned on the issue

of downward flow in the Dolomite to which Mr.

Schuh had alluded,

Professor Daniel referred to flow calculations which he had

performed for the site.

Because these calculations were made to directly address

the

merit

of the issues raised

Schuh,

they incorporated

those

contentions.

Relying

those

calculations,

Professor

Daniels

stated

that

the”gradient

inward even in the rock,

and the flow is inward

in the

rock.”

Explaining why

that result occurred, Dr. Daniel referred back to the higher permeabilites shown

to be present when the dolomite was considered in its entirety, emphasizing that

those higher permeabilities

actually increase

the upward driving

force

of the

inward gradient.

The

City

previously

retained

Dr.

Ralph

Yarborough

review

this

application

independent

geologist.

His

conclusions

are

included

in the

record.

concluded

that

the

proposed landfill

could be

constructed

and

the

groundwater supply ofthe immediate area can be protected as projected by the

applicant. He recommended the grouting ofthe open joints which are located

the exposed competent dolomite on the landfill invert.

-Page

12-

CONCLUSION OF

LAW

Based

upon

all of the testimony

provided herein, it

clear that

the proposed

design and proposed operation plan satisfies Criteria Number Two and that the facility

is designed, located and proposed to be operated so that the public

health,

safety and

welfare will be protected.

Said conclusion is based upon these

specific findings:

The bedrock system is an aquifer.

2. There is sufficient evidence to establish that the applicant’s characterization

of the bedrock, based

upon the measured characteristics

as established by the

numerous test

borings, is consistent with all other regional data.

The modeling performed by the applicant is sufficient and accurate.

The

inward

gradient

design

adequate

eliminate

the

need

model

downward movement of contaminants.

5. The potentiometric surface of the bedrock is

sufficiently above the base of the

liner

and the maximum

allowable

level of leachate,

which

creates

an inward

gradient which is consistent with the protection ofthe environment

The

ground water impact evaluations

are

sufficiently accomplished and are

supportive ofthe applicant’s witness’ opinions that the design is consistent with

the protection of the public health and environment.

The

applicant

and the

testimony

of Stuart

Cravens

are

consistent

the

characterization

ofthe bedrock system.

8. The criticism

ofStuart

Cravens regarding the data ofthe applicant’s

boring

data is not persuasive due to the lack ofsignificant information in the data upon

which he relied.

9. The testimony ofJeffery Schuh failed to consider the

testing performed by the

applicant.

Further

his

testimony

regarding

his

lack

knowledge

the

conclusions

employees

under

his

direct

supervision

similar

issues

undermined

his credibility.

-Page

13-

10.

The

testimony

of Dr.

David

Daniel

persuasive.

His

credentials

and

qualifications indicate substantial knowledge andinvolvernent both in the design

and remediation

of solid waste

disposal

sites.

His

clear

opinions

were

highly

supportive of the applicant’s satisfaction of this criteria.

Dr. Daniel’s testimony

found

of substantial

importance

due

its

clarity

and

his

extensive

background and thorough knowledge.

11.

The

opinion of Dr.

Ralph Yarborough is

also found to be supportive

of the

applicant’s position.

Dr. Yarborough, while

not a formal witness,

was hired to

review the data ofthe

application

and the testimony of the hearing.

The

City

Council

relies

upon

his

opinion

for

the

benefit

corroboration

and

input

regarding specific conditions to be attached to

the

granting or denial ofthe siting

application.

The

City

specifically

requests

the

additional

conditions

described

below

imposed in order to provide additional assuranceabove and beyond that required by the

Environmental

Protection Act in order to provide additional assurance

compliance

with this criteria.

However, even without these conditions, the City Council finds that

the criteria

have been satisfied by the evidence.

In the event that

additional

borings

determine

that

additional

protection

any

aquifer

that

may

exist,

the

understanding and expectation of the City that the

technical expertise

of the Illinois

Environmental Protection Agency make such additional requirements ofthe applicant,

as said technical expertise shall determine is necessary.

ADDITIONAL

CONDITIONS

The

City

Council

does desire

attach

certain

conditions

order

reassure

the

residents

the

general

area

of the

viability

of the

design.

Specifically,

City Council requests the following conditions.

The

City shall provide

a duplicate construction

quality assurance

program which will monitor the construction of the landfill to assure that

the construction

consistent

with the final design as permitted

the

IEPA. The Cityprogram will provide inspections, monitoring, observation

and documentation

of the following construction

stages:

Excavation,

grading

and

preparation

the

subgrade

and

foundation to design parameters.

Placement

of the compacted low permeability

soil liner.

Placement of geomembrane and geosynthetic components.

Installation

of the leachate

management

systems.

Placement of final cover.

-Page

14-

Installation of the gas management

system.

Construction

of surface water ditches, channels, berms, basins and

drainage structures.

Placement of concrete structures.

The costs of this

CQA shall be reimbursed by the

applicant to the City.

That a minium one hundred foot set back shall be maintainedfrom Minnie

Creek to the solid waste unit boundary.

This set back may include any easement

or right-of-way

granted

to the Minnie

Creek Drainage District

for

access for

cleaning of the creek and maintenance of any spoils derived from that portion of

the cleaning which takes

place abutting the facility.

Leachate storage shall not be permitted in surface ponds or lagoons in any

point in the development or operation of the landfill.

Any

leachate

storage

which

would

occur

outside

the

waste

receiving

boundaries,

shall

occur

location

within

the

boundaries

of the

facility

boundary

and

shall

minium of

feet

above

existing

grade

area

protected by other berms of a design

and specification

approved by the

City of

Kankakee and the Illinois Environmental

Protection

Agency.

The quality and composition of leachate shall be monitored to assure the

ability

of the

Kankakee

River

Metropolitan

Agency

Regional

Waste

Water

Treatment Plant to treat said leachate

on a more frequent basis than proposed

by the applicant.

The

12 foot side liner shall be constructed between the landfill side walls

and

Minnie

Creek

and

side

walls

shall

subject

the

quality

assurance

program described above.

All

storm water shall

be routed

to the sedimentation

basins

during the

construction period and retained in the basins prior to discharge.

Monitoring of

said

discharge

will

reviewed by

the

City

assure

sedimentation

control

during the construction,

operation and closure and any post closure period.

The

sedimentation

basins closest to the initial

cell construction

shall be

constructed

so as to assure that any dewatering ofthe weather bedrock stratum

takes place into the sedimentation basins.

-Page

15-

Adequate measures shall be taken to assure the protection of any and all

aquifers from any contamination as required by the JEPA through its permitting

process.

Upon the determination

of the necessary measures

of protection, said

measures shall

be also approved by the

City of Kankakee.

10.

The

applicant

shall

investigate

and

use

phyto-mitigation

through

the

selection ofappropriate plants, to reduce contamination.

That, if necessary, the

City

shall, at all applicants expense, retain a botanist/biologist for the purposes

of providing

consultation

assure

appropriate

application

of this

condition.

Costs ofsaid consultant shall be reimbursed to the City by the applicant.

11.

Provide sampling of the storm water quality

in the sediment ponds

and

Minnie Creek on at least a quarterly basis

and during any extreme events such

as high or low flow events.

12.

Provide

a specific

description

of the manner in which the contaminated

water

will

collected

stored

and

develop

plan

assure

that

the

contaminated water does not leave the site.

13.

Facility

inspections

and

plan

updates

shall

performed

least

quarterly

detect

any

potential

problems

the

Storm

Water

Pollution

Prevention Plan.

14.

In the event that any dewatering occurs, effects on Minnie Creek and its

surrounding environment

shall be identified as a result of the said dewatering

and associated plan and shall be submitted to the

City for review and approval.

15.

Any washing ofwheels ofthe trucks should be routedthraugh

anoill-water

separator and assure that the runofffrom any wheel washing will not impact the

quality ofwater in Minnie

Creek.

16.

The

Spill

Prevention

and

Control

Plan

should

identify

the

type

equipment that will operate and be stored on site, the location ofthe equipment,

the potential source and type ofrelease, the amount offuel or oil that willbe kept

site

and

how oil or fuel products

will be contained

or captured

if a release

occurs.

In addition, the plan should describe the type ofspill control equipment

both as to its maintenance

and its location.

The applicant shall also create a spill

pollution

control and counter-measures

plan for the site.

-Page

16-

17.

All

storm water contacting the vehicle fuel and maintenance area shall be

diverted through an oil water separator prior to discharging to the site drainage

ditch or sediment ponds and shall be monitored for water

quality.

18.

The

landfill

shall

required

meet

Phase

MS4 requirements

conformity with the City of Kankakee Separate

Storm Sewer Program.

19.

Because

of Consumers

Illinois

Water

Company’s

(hereinafter

“CIWC”)

expressedinterest in assisting the monitoring ofthe facility and cooperating with

the applicant,

the following additional conditions

are imposed:

The applicant shall allow CIWC to review and advise regarding the

proposed monitoring of the upper

aquifer.

Allow

CIWC to review and advise regarding all sampling programs

for storm water management

systems.

Allow CIWC to review the sampling frequency and the constituents

to be tested as a result of any dewatering which occur after waste

placement.

Allow CIWC to review the sampling frequency and the constituents

for

which

testing

will

occur

regarding

the

vehicle

fueling

and

maintenance

area.

Allow

CIWC

participate

construction

quality

insurance

meetings.

20.

The applicant shall cause the pressure grouting ofall open joints found in

the

exposed competent

Dolomite on the landfill invert as those open joints

are

discovered upon removal of the weathered rock and prior to the installation of

any liner consistent with the application previously filed..

21.

The

City

Council

specifically

finds

that

there

substantial

political

interest in the requirements of a “double liner”. The evidence in this hearing has

established,

without

contradiction,

that

double

liner

does

not

offer

any

substantial

additional

protection

and its

installation

may be

harmful

the

underlying liner

system.

However,

additional

condition,

should

determined either by statute or regulation that

a “double liner” system provides

any substantial

measure

of additional protection, the

City Council hereby will

require

the

applicant

install

such

double

liner

accordance

with

said

statutes

or regulations.

-Page

17-

Criteria

The facility is located so as to minimize incompatibility

with the

character ofthe surrounding area and to minimize the effect and

value of the surrounding property.

FINDING

OF FACT

Evidence in support offinding:

Michael Donahue testified as an urban planner regarding the impacts of

the proposed facility on the

area in which it is proposed to be located.

described

the

existing

area

mainly

agricultural

with

growing

commercial and industrial

development.

The Kankakee County Zoning Ordinance, previously zoned this property

as industrial.

The CityofKankakee, upon annexation zoned the property as industrial.

Donahue testified that this facility would be compatible with such uses.

Dr. Peter Poletti testified that the proposed facilitywuuidhave no negative

impact on the surrounding real property values.

He testified regarding

his

studies

of impact

real estate

values at

number ofproposed sanitary landfill sites.

He testified that his studies, as well

as industrial

literature,

indicated that

landfills

do not negatively impact real

estate values.

At the proposed site he performed an analysis

where

he compared real

estate values on an area surrounding the currently operating landfill with

sales

in the

greater Kankakee area.

He found there was no statistically

significant

difference

in the

price of vacant

ground, improved lots and single-

family homes between the operating landfill area and the control area.

Dr.

Poletti further

testified the applicant has instituted a real property

protection program offering land owners in the immediate facility the ability to

lock in a current value oftheir property.

However,

Poletti testified that such a

plan was not necessary due to the lack ofimpact on values.

-Page

18-

No empirical evidence or studies were offered by any other witness to show

a negative impact of a solid waste landfill on surrounding real estate

values.

10.

Poletti

testified that

had re-evaluated

his

analysis

after the

initial

testimony in the prior

application submitted to the City He acknowledged

that

additional sales had occurred but that those sales did not in any way change his

evaluation.

CONCLUSION OF

LAW

Based upon the evidence offeredherein it is determined that the facilityis located

in such a manner as to minimize incompatibility with the character ofthe surrounding

area and will have

effect on the value of the surrounding

property.

Said finding is

supported

by the

evidence

described

above

and

generally without

contradiction.

Applicant

has established sufficient evidence to satisfy

Criteria Number Three.

-Page

19-

Criteria

The

applicant has established that the facility is

located outside

the boundary ofthe

100-year Flood Plain.

FINDINGS OF FACT

Evidence in support

of this finding:

The applicant’s witness Devin Moose testified as a professional engineer

that based upon the most recent maps ofthe

Federal Emergency Management

Agency Maps that the entire

site is outside the 100-year Flood Plain.

There has been no testimony

to the contrary.

Evidence

the

form

of public

comment

was

received

regarding past

flooding in

the

area surrounding the facility which

occurred most severely

1957.

However, that

evidence does not alter

the current maps described above

which consider drainage improvements made since that

time.

The

applicant

has

established

proposed

storm

water

management

system which will allow for a controlled release of storm water.

The storm water management plan will assure a more controlled effect of

storm water on the surrounding properties than currently occurs.

CONCLUSION OF LAW

Based upon the evidence offered, the CityofKankakee finds the proposed facility

is outside the boundaries ofthe 100-year Flood Plain.

Criteria Number Four is satisfied.

-Page 20-

Criteria

The applicant has established that the plan ofoperations for this

facility

designed

minimize

the

danger

the

surrounding areas from fire, spills or other operational accidents.

FINDINGS

OF FACT

Evidence in support

of this finding:

Devin

Moose

testified

that

this

facility

with

the application contains

detailed emergency response for fire, spills and other operational accidents.

Moose also testified and offered evidence that the City of Kankakee Fire

Department

had reviewed the Fire Protection Plan and had issued its approval

ofthe plan.

No evidence was introduced

indicating that

any responding

agency was

incapable with any such accident which may occur.

CONCLUSIONS OF

LAW

The

applicant

has

established

that

the

plan

of operation

for

this

facility

designed to minimize the danger to the surrounding areas from fires,

spills, or other

operational accidents. The applicant has introduced the only evidence on this issue and

there is no contradictory evidence.

The applicant has produced sufficient evidence to

satisfy Criteria Number

Five.

ADDITIONAL CONDITIONS

A condition ofthe approval ofthis application

shall include a requirement

that the applicant, prior to commencing ofoperations, shall work with the

City ofKankakee Fire Department

to assure that the operational plan is

consistent

with the

emergency

response

of the

City of Kankakee

Fire

Department

and to assure that

the

City of Kankakee Fire Department

shall

informed

all

times

regarding

any

potential

hazardous

conditions which may exists

and which would increase

the likelihood of

any accidently fire, spill or other operational accident.

-Page 21-

Criteria

6..

The applicant has established the traffic patterns

to and from the

facility

are

designed

as to

minimize

the

impact

on existing

traffic flows.

FINDINGS OF FACT

Evidence

offered in support

of this finding:

The applicant called Michael Werthmann, a licensed professional engineer,

who conducted a Traffic Impact Analysis.

Werthmann testified regarding two

proposed traffic patterns which were described as a Northern access route and

a Southern

access route.

He testified that

since preparing his initial

report for

the prior application

that

no changes had occurred which would cause

him to

modify his opinions.

A Northern

access route was preferred due to the fact that it reduced the

number

of residences

affected by the traffic.

Werthmann testified that all relevant intersectionsInteNort1mrxu~eceas

alternative were at an A orB service level.

He indicated that those service levels

would be unchanged by the projected traffic associated with the construction and

operation ofthe facility.

In his opinion, the landfill would have no measurable

impact on existing

traffic

patterns

and

that

the

traffic patterns

were

designed

minimize

the

impact on the existing traffic.

Werthmann

further

testified

that

the

applicant

was

agreeing

commitment

to pay for all necessary

upgrades

to all road

and intersections

accommodate

an access route for trucks

80,000

lbs.

capacity. The financial

costs

will

include

the widening

of the

roads at

certain intersections

order

increase available turn radius.

There is

evidence indicating that

the traffic pattern

and from the

facility are designed other than to minimize the impact on existing traffic flows.

It is a finding ofthe City of Council ofKankakee that the Northern route

is the preferred route.

If for

any reason

the Southern

route

designed

and permitted

the

IEPA as the preferred route, the conditions as described below shall be imposed.

-Page 22-

CONCLUSIONS

LAW

Based upon the evidence and subject to the conditions described herein,

the City

of Kankakee finds

that the applicant has established

that the

traffic patterns

to and

from the facility are designed so as to minimize the impact on existing traffic flows and

therefore has satisfied Criteria

Number

Six.

ADDITIONAL CONDITIONS

The City Council of Kankakee requests that the following conditions to be

imposed.

That the Northern route, as described in the testimony,

be utilized

and be the preferred route

That

all

trucks

owned

under

the

control

of the

applicant

restricted to the designated route.

That all roadways be brought

up to standards

in accordance with

the City of Kankakee Engineering

requirements

to accommodate trucks

of80,000

lbs. at the expense of the applicant.

That all

transporting vehicles

to the

facility should be

covered or

enclosed as required by State law in order to reduce liter

-Page 23-

Criteria

The

applicant

has

established

that

the

facility

not

used to

store, treat

or dispose of hazardous waste.

FINDINGS

OF FACT

Evidence in support

of finding:

Devin

Moose, witness

for the applicant has

testified that

this

proposed

facility will

not

permitted,

nor

will

used

store,

treat

dispose

hazardous waste.

There is

need for a finding or additional

evidence

on this

criteria as

such criteria is not applicable to this

application.

CONCLUSIONS

LAW

This facility will not be used to store, treat or dispose of hazardous waste.

Criteria Number Seven is not applicable.

-Page 24-

Criteria

The

applicant

has

established

that

Kankakee

County

has not

adopted a solid waste plan which is consistent with the planning requirements

ofthe

Local

Sold

Waste

Disposal

Act

the

Solid

Waste

Planning

and

Recycling

Act.

Alternatively,

if such

plan

does

exist,

the

applicant

has

established

that

the

application is consistent with the plan.

FINDINGS OF FACT

Evidence in support of this finding:

Kankakee

County

has

adopted

Solid

Waste

Management

Plan,

(hereinafter “the plan”). The plan was

adopted on

October

12,

1993.

Prior

the

time

of the

adoption

of the

plan

solid

waste

advisory

committee was appointed. After the committee was appointed the initial drafts

of the plan were apparently

developed.

Pursuant

to the Freedom of Information

Act,

a request was filed by the

City

of Kankakee with

Kankakee

County

for all

information

concerning

the

adoption of the plan and its amendments, including records of all notices to the

municipalities regarding the plan and its

adoption.

The response ofKankakee County is included in City of Kankakee Exhibit

Number

One. Kankakee County filed additional

documents

after the evidence

had closed but during the period that the record was open for public

comment.

There is no

evidence that

the

response to the

City pursuant

to the Freedom of

Information Act request has not been supplemented.

The

records

which

have

been

produced

and

filed

herein

provide

evidence that

Kankakee

County provided written

notice

to all

municipalities

when plan development began.

The

records

which

have

been

produced

and

filed

herein

provide

evidence

that Kankakee County provided any periodic written progress reports

to any municipality or any other entity concerning the preparation

ofthe plan.

The

records

which

have

been

produced

and

filed

herein

provide

evidence that copies ofthe plan, as proposed, were submitted to all municipalities

or to any other entity prior to its adoption,

for review and comment.

-Page 25-

The

records

which

have

been

produced

and

filed

herein

provide

evidence of any notice

to any body or entity or of any public

hearings or public

notice prior to the adoption

of any

of the amendments

to the plan adopted

Kankakee

County.

The

plan was re-adopted

by the Kankakee County

Board

on August

18,

1995 and a five year update was apparently adopted on July

31,

2000.

10.

Prior to October 9,

2001, the plan prohibited

any out-of-county waste.

11.

The plan was amended,

October

2001.

This amendment removed the

prohibition

against out-of-county waste.

12.

Thereafter,

the

language

included in

the

October

2001

amendment

provided:

“Kankakee

County

has a single landfill owned and operated

by Waste

Management ofIllinois, Inc.. This landfill has provided sufficient capacity

to depose of waste generated in Kankakee County and its owner advised

the

County that

it plans

to apply

for local

site approval

to expand the

facility to provide additional

disposal capacity to the County.

Operation

ofthe landfill hasbeen conducted pursuant

to a landfill agreement signed

the

County

and

Waste

Management

1974

and

subsequently

amended.

In the event siting approval for an expansion is obtained,

the

landfill will provide a minimum

of 20-years of disposal capacity through

expansion

of the

Kankakee

landfill.

expansion

of the

landfill,

approved, will satisfy the County’s Waste Disposal needs foran additional

years.

new

disposal

facilities

will

necessary

or desired,

Kankakee

County

for purposes

of implementing

the

plan.

Kankakee

County will not

support

and will contest the development of any other

landfill in the County, unless the expansion of the existing landfill is not

approved.”

13.

Pursuant to the evidence offered, theamendment ~

not submittedtothe

City,

nor

any

other

municipalities

any

other

entity

prior

to,

after,

its

adoption.

The

amendment

was

not

submitted

the

State

Illinois

Environmental

Protection Agency until June

19,

2002, four days following the

commencement ofthe siting hearing in the prior application proceedings before

the City of Kankakee.

-Page 26-

14.

The plan was amended again on March

12,

2002, the day prior to the filing

ofthe prior application.

This amendment provided “an expansion ofthe existing

landfill, if approved, would then satisfy the County’s waste

disposal needs for at

least an additional

20 years. In and in accordance with the plan

(as amended),

as well as relevant provisions of the local Solid Waste Disposal Act and the Solid

Waste Planning and RecyclingAct, no new landfill facilities would be necessary.

15.

In addition,

the amendment

provided that

a “privately owned” landfill

would meet the disposal needs of the

County for a 20-year period.

In addition,

the plan required the existence of an Environmental

Contingency Escrow Fund,

a DomesticWell Water Protection Program and a RealProperty Protection Plan.

16.

The March

12,

2002 amendment was not submitted

to any municipality

including the City of Kankakee prior to its

adoption. It

also was not submitted

to the State of Illinois EPA subsequent to its adoption, until June 19,

2002, four

days after the commencement of the hearing for the prior application.

17.

Subsequently,

the Illinois Pollution Control Board found the Solid Waste

Plan ofKankakee County to be ambiguous in its decision regarding the previous

siting application.

18.

On February

11,

2003, Kankakee

County again adopted an amendment

to its

Solid Waste Management Plan. That amendment provided:

“Itis the intent ofKankakee County that no landfills or landfill operations

sited, located, developed or operated within Kankakee

County other

than

the

existing

landfill located

southeast

of the intersection

of U.S.

Route

45/52 and 6000 South Road in Otto Township,

Kankakee

County,

Illinois.

The only exception to this restriction

on land filling

is that

expansion

ofthe existing landfill on the real property that

is contiguous

to the existing landfill would be allowed under this

Plan. The expansion

or development ofa landfill on the real property contiguous to the existing

landfill

would

limit the

impacts

of land filling

activity

in the

County.

Accordingly, the development of any other landfills in the County on land

that

not

contiguous

to the

existing

landfill

inconsistent

with this

County’s

Solid

Waste

Management

Plan.

noncontiguous

landfill

inconsistent

with this Plan regardless ofwhether it is or to be, situated

-Page 27-

upon,

unincorporated

County land,

incorporated municipal

land, village

land, township

land, or any other land within the County borders that

not contiguous and adjacent to the existing landfill.” (sic)

19.

The

City

of Kankakee

has

adopted

its

own

Solid

Waste

Plan

which

addresses the need for solid waste

disposal for the

City’s residents.

20.

The City ofKankakee, as previously described, has the authority for siting

of a solid waste

disposal facility within its own boundaries.

At the time

ofthis finding,(August

18,

2003), no expansion of any current

Kankakee County landfill hasbeen approved, including any application forsiting

of any facility near or at the site ofthe currently operating Waste Management

Landfill.

22.

An application was filed with Kankakee

County

by Waste Management

of Illinois, Inc., to expand its facility on March 29,2002 which was scheduled for

a public hearing on July

22,

2002.

No public hearing took place

due to the filing

of a

motion

to dismiss

for lack of jurisdiction

for failure

of proper

notice.

The

applicant requested that the matter be continued. A second application for siting

was filed by Waste Management with Kankakee

County. The approval of that

siting application was reversed by the Illinois Pollution Control Board on August

2003

when the

Board

found that

Kankakee

County

lacked

jurisdiction

conduct the siting hearing which it had previously conducted.

23.

The facility proposed by Town and Country Inc .will meet the needs ofthe

disposal of the

City ofKankakee’s

solid waste

for a guaranteed thirty years.

24.

The City of Kankakee has the largest demand for disposal ofsolid waste

in Kankakee County.

25.

In light

of the fact that

no expansion of any “existing” landfill has been

approved,

this

application

consistent

with

the

County’s

desire to

have one

location and one landfill.

26.

No witness

has

testified

that

the

application

inconsistent

with

the

Kankakee County

Solid Waste Plan.

-Page 29-

The

application

in all

other ways

compliant

and consistent

with the

plan. The application

is further

consistent in that

no other siting or expansion

has currently been approved for any other site within Kankakee

County.

The City further holds that in its opinion the plan, as repeatedly amended

by Kankakee County constitutes

an illegal

and unconstitutional

infringement

upon its statutory

authority

to site a solid waste

disposal facility and upon its

constitutional

authority

as a Home

Rule Unit

of government, but

concedes that

the Hearing Officer and this City Council are without authority

to make such a

finding within the confines ofthis hearing.

The

applicant has satisfied the requirements

of Criteria Number

Eight.

-Page 30-

Criteria 9.

The

applicant

has

established

that

this

facility

not located

within a regulated recharge

area.

FINDINGS OF FACT

Evidence in support ofthis finding:

The applicant through Devin Moose has established that the site is notwithin

any regulated

recharge

area as

designated by the State

of Illinois.

Said

finding has

been verified by the JEPA.

CONCLUSIONS OF LAW

The

facility site

not located within a regulated

recharge

area

and Criteria

Number Nine is not

applicable..