BEFORE THE ILLINOIS POLLUTION CONTROL BOAR

CE:~

COUNTY OF KANKAKEE, ILLINOIS, and

)

SEP

22

EDWARD D. SMITH, KANKAKEE

)

~~OOj

COUNTY STATE’S ATTORNEY,

)

STATE

OF

IL!

~

C~ontroi~~

Petitioners,

)

)

vs.

)

)

No.PCBO~-____

CITY OF KANKAKEE, ILLINOIS, THE CITY)

OF

KANKAKEE, ILLINOIS CITY COUNCIL,

TOWN AND COUNTRY UTILITIES, INC.,

AND KANKAKEE REGIONAL LANDFILL.

L.L.C.,

Respondents.

NOTICE OF FILING

TO:

All Counsel ofRecord (see attached

Service

List)

PLEASE

TAKE

NOTICE

that

on

September 22,

2003, the

undersigned filed with the Illinois

Pollution Control

Board,

100 West Randolph Street,

Chicago, Illinois

60601,

an original and nine

copies

ofthe Petition

for Review of Site Location Approval Filed by the City ofKankakee, copies of which are

attached hereto.

Respectfully Submitted,

On behalfofthe THE COUNTY OF

KANKAKEE, ILLINOIS, and EDWARD D.

SMITH, KANKAKEE COUNTY STATE’S

ATTORNEY,

Petitioners,

B

:

Hinshaw &

ulbertson

Edward D. Smith, State’s Attorney

Charles F. Heisten, Esq.

Richard

S. Porter, Esq.

HINSHAW AND CULBERTSON

100 Park Avenue

P.O.

Box

1389

Rockford, IL

61105-1389

815-490-4900

This

document

utilized100

recycled paper products

70377852v1 827167

---

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions ofSection

1-109 ofthe Illinois

Code of Civil

Procedure,

hereby under

penalty

of perjury under

the

laws of the

United

States

of America,

certifies that on September 22, 2003, a copy ofthe foregoing was served upon:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601-3218

Attorney George Mueller

501

State Street

Ottawa, IL 61350

(815)433-4705

(815)

433-4913 FAX

Donald J. Moran

Pederson & Houpt

161 N. Clark Street, Suite 3100

Chicago, IL

60601-3242

(312) 261-2149

(312) 261-1149

FAX

Elizabeth Harvey,

Esq.

Swanson, Martin & Bell

One IBM Plaza, Suite 2900

330 North Wabash

Chicago, IL

60611

(312) 321-9100

(312) 321-0990 FAX

Kenneth A. Leshen

Christopher W. Bohlen

Pat Power

City ofKankakee

Corporate Counsel

385

East Oak Street

Kankakee, IL 60901-1787

(815)

933-3385

(815) 933-3397 FAX

70377853v1 827167

---

By

depositing

a

copy thereof, enclosed

in an

envelope

in the United States Mail at Rockford,,

Illinois, proper postage prepaid, before the hour of5:00 P.M.,

addressed as above.

~

~

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

(815)

490-4900

70377853v1 827167

---

BEFORE THE ILLINOIS POLLUTION

CONTROL BOAI~~~’ED

CLERK’S

OFFI’CF

COUNTY OF KANKAKEE, ILLINOIS, and

)

SEP

2

2

2003

EDWARD D. SMITH, KANKAKEE

)

COUNTY STATE’S ATTORNEY,

)

SlATE

OFILUNQIS

)

I~OIIUtIQfl

C~OfltT0/

Board

Petitioners,

)

)

vs.

)

)

____

CITY OF KANKAKEE, ILLINOIS, THE CITY)

OF KANKAKEE, ILLINOIS CITY COUNCIL,

TOWN AND COUNTRY UTILITIES, INC.,

AND KANKAKEE

REGIONALLANDFILL.

L.L.C.,

Respondents.

PETITION FOR

REVIEW

OF SITE LOCATION APPROVAL

NOW

COMES

the

Petitioners,

THE

COUNTY

OF

KANKAKEE,

ILLINOIS

(“Kankakee County”) by and through its attorneys, HINSHAW & CULBERTSON,

and

Edward

D.

Smith, Kankakee County

State’s Attorney,

in his

own right as State’s Attorney of Kankakee

County,

and hereby seek review ofthe Respondent, Kankakee City Council’s (“City

Council”),

decision granting site

location

approval

for the

proposed Kankakee

Regional

Landfill

facility

(“Facility”), submitted by Respondent Town and

Country Utilities, Inc.

and Kankakee Regional

Landfill, L.L.C., and in support thereof, states as follows:

1.

The Petitioners seek review pursuant to Section 40.1

ofthe Illinois Environmental

Protection Act (“The Act”) (415 ILCS

5/40.1).

2.

Town

and

Country

Utilities, Inc.

and

Kankakee Regional

Landfill, L.L.C.

filed

their Application for local siting approval pursuant to

Section 39.2 ofthe Act

(415 ILCS

5/3

9.2)

on or about March 7, 2003.

The Application sought siting approval for a proposed facility to

be

located within the corporate boundaries ofthe City ofKankakee, Kankakee County, Illinois.

---

3.

The City ofKankakee conducted a public hearing commencing on June 24, 2003.

The County of Kankakee, Illinois, by and through

its

State’s Attorney, Edward D. Smith, and its

Special Assistant State’s Attorneys,

Charles F. Helsten, and

Richard S.

Porter,

appeared

at such

hearing and participated in the hearing.

4.

Kankakee County has standing to bring this petition pursuant to

35

Ill.Adm.Code

Section 107.200(b) and

Section

107.202(b).

Edward D. Smith has standing to bring this Petition

in his

capacity as State’s Attorney for Kankakee County.

5.

On or about August 19, 2003,

the City Council rendered its decision on

Town and

County

Utilities,

Inc.

and

Kankakee Regional

Landfill, L.L.C.’s

Application

for a

landfill site

location

approval.

The

City

Council’s

ordinance

granting

such

approval

and

the

hearing

officer’s

Findings of Fact

adopted by

the

City

Council

are marked as

Exhibit

1

and

attached

hereto and incorporated herein by this reference.

Such Ordinance was adopted by

a vote of 12

ayes,

1 nay, and one abstention.

6.

Kankakee County and Edward D. Smith hereby seek review of the City Council’s

decision granting approval ofthe Application of Town and Country Utilities, Inc.

and Kankakee

Regional Landfill. L.L.C. to

site the proposed Facility.

The basis for this

Petition for Review is

as follows:

I.

THE APPLICATION SHOULD BE DENIED BECAUSE IT IS SUBSTANTIALLY

THE SAME APPLICATION FILED BY THE SAME APPLICANT ON MARCH 13, 2002

7.

Section

39.2 ofthe

Act provides: “an Applicant may not

file a

request for local

siting approval, which is substantially the same as a request which was disapproved pursuant to a

finding against the

Applicant

under

any

criteria (i)

through

(ix)

subsection

(a)

of this

section

within the preceding

two

years.”

415

ILCS

5/39.2(m)

(see

also

Section

7(c)

of the

City

of

Kankakee Pollution

Control Facility Siting Ordinance No. 2003-11).

The Application filed on

2

---

March

7, 2003, by the Applicant was substantially the same as the Application that was filed on

March 13, 2002 in front ofthe Kankakee City Council.

8.

The location ofthe Facility is the same as the previous location, the design of the

Facility is

substantially the same, and the operating plan of the Facility is substantially the

same.

Accordingly, the

Application

is

substantially the

same,

and,

therefore, the

City

of Kankakee

either did not have jurisdiction to hear the March 7, 2003

application, or said application should

have been denied.

II.

THE CITY OF

KANKAKEE

DID NOT HAVE JURISDICTION TO HEAR THE

APPLICATION BECAUSE THE APPLICANT DID NOT

PROVIDE THE REQUIRED

EVIDENCE THAT LANDOWNERS WITHIN 250 FEET OF THE PROPOSED

LANDFILL RECEIVED NOTICE OF THE

INTENT TO FILE THE APPLICATION

9.

Section 39.2(b) ofthe Act provides that:

No later than

14

days prior to

a request for location approval the applicant shall

cause

a

written

notice

with

such

request

to

be

served

registered

mail,

return

receipt requested, on the owners of all property within the subject area

not solely

owned by the Applicant,

and the

owners of all

property within

250

feet in each

direction ofthe lot line ofthe subject property, said owners being such persons or

entities which

appear in

the

authentic tax records of the County

in

which such

facility

is

located,

provided,

that

the

number

of feet

occupied

by

all

public

records,

streets, alleys, and other public ways shall be

excluded in computing the

250

feet

requirement, provided

further, that

in

no

event

shall

this

requirement

exceed

400

feet,

including

public

streets,

alleys

and

public

ways”.

415

ILCS

5/39.2(b)(2002).

10.

In

this

case the

Applicant

failed

to

effectuate

service

upon

several

landowners

who were entitled to

3 9.2(b) notices.

III.

11.

Section

3 9.2(c)

requires

the

Applicant

to

file

a

copy

of

its

request

to

the

municipality and

“the proposal

shall include

the

substance of the Applicant’s proposal”.

415

ILCS 39.2(c).

3

---

12.

In this

case, the

Applicant’s experts admitted

that

there were

specific

analyses

which were imperative to the

substance of the proposal

and upon which they were

basing their

opinions which were not included in the application.

13.

The

filing

of the

substance of its

proposal

with

the municipality

is

required by

Section 39.2(c)

and

because the Applicant

failed

to

file

a complete Applicant such application

should have been denied as a matter oflaw.

IV.

THE CITY OF

KANKAKEE

DID NOT CONDUCT A FUNDAMENTALLY FAIR

HEARING PROCESS

14.

The City

Council

and

the City

of Kankakee

adjudged the

facts and

law of this

case

in

advance

of the

hearing

and

proceeding.

Evidence

of the

City

of Kankakee’s

pre-

judgment

of this

case

is

overwhelming,

and

stems

from

extensive

pre-fihing

and

post-filing

contacts

with

the Applicant

and

culminated

with

City

of Kankakee filing

an

injunctive

action

against

the

County

of Kankakee

shortly

before

the

Section

39.2

hearing

seeking

to

bar

the

County ofKankakee from

“interfering” with the City siting the Facility.

15.

The

Applicant

had

improper

exparte

communications

with

the

decision maker

both before and afterthe filing of the application which prejudiced the decision makers.

16.

The proceedings were

also

fundamentally

unfair because the City

Council

went

beyond

the parameters of a

Section 39.2

hearing by entertaining

and considering the arguments

of the Applicant

and

the

City’s

own

attorney

concerning

the

City’s home rule

authority,

the

City’s

Solid Waste Management Plan, and the process employed

in passing the County’s

Solid

Waste Management Plan.

V.

THE CITY COUNCIL’S DECISION THAT THE SECTION 39.2(a) CRITERIA

WERE MET WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE

17.

The findings ofthe City of Kankakee were

contrary to,

and against, the manifest

weight ofthe evidence presented in this matter, including (but not limited to) the following:

L

4

---

a.

The

City

Council’s

determination

that

the

facility

is

necessary

to

accommodate the waste needs ofthe area intended

to be

served was against the manifest

weight ofthe evidence presented in this matter in violation of4l5 ILCS

5/39.2(a)(i);

b.

The City Council’s determination that the facility is

designed, located and

proposed to be operated such that the public health,

safety and welfare will

be

protected

was against the manifest weight ofthe

evidence presented in

this matter in

violation of

415 ILCS 5/39.2(a)(ii);

c.

The City Council’s determination that the proposed facility was consistent

with

the

Kankakee

County

Solid

Waste Management Plan

(as

amended)

was not

only

against the manifest weight of the

evidence in

this

matter, but,

in

addition violated the

clear

and

unequivocal

meaning

and

intent

of

the

plan

in

violation

of

415

ILCS

5/39.2(a)(viii).

Furthermore,

the

City

Council

improperly

considered the

process

that

was

utilized

in

passing

the

County’s

Solid

Waste

Management

Plan,

improperly

considered

the

City’s

Solid

Waste

Management

Plan,

and

even

if the

City

had

been

authorized to

consider the process employed by the County

in adopting its Plan, the City

Council

ignored the evidence that was submitted establishing the Plan was appropriately

passed by the County, all in violation of415 ILCS 5/39.2(a)(viii).

18.

That for each

and

every

reason

set

forth

above,

the

Kankakee

City

Council’s

decision in this matter should be reversed.

WHEREFORE,

Petitioners

herein respectfully request that

the

Pollution

Control

Board

reverse Kankakee City Council’s granting of site location approval, and for such other relief as

the Board deems appropriate in the circumstances.

5

---

Respectfully Submitted,

On behalfofthe THE COUNTY OF

KANKAKEE,

ILLINOIS, andEDWARD D.

SMITH,KANKAKEE COUNTY STATE’S

ATTORNEY,

Petitioners,

By:

Hinshaw & C~qIl~rtson

Edward D. Smit

,

State’s Attorney

Charles F. Helsten, Esq.

Richard S. Porter, Esq.

HINSHAW AND CULBERTSON

100

Park Avenue

P.O. Box

1389

Rockford,IL

61105-1389

815-490-4900

This document utilized 100

recycled paper products

6

70377445v2 827167

---

BEFORE THE CITY COUNCIL

CITY OF KANKAKEE, ILLINOIS

S~p

23

2003

IN RE:

)

~~TEo~

ILLINOIS

)

‘~

THE APPLICATION FILED ON MARCH 7, 2003

)

OF TOWN AND COUNTY UTILITIES INC.

)

and KANKAXEE REGIONAL LANDFILL, L.L.C.

)

for SITING APPROVAL

)

OF A POLLUTION CONTROL FACILITY.

)

FINDINGS OF FACT AND

CONCLUSIONS

OF

LAW OF THE CITY OF KANKAKEE.

The

City Council ofthe

City of Kankakee,

as the siting authority pursuant to

Section 39.2 ofthe IllinoisEnvironmental Protection Act,

415 ILCS 5/39.2.(hereinafter

“The Act”)

has received

an

application

for

siting

approval of a Regional

Pollution

Control

Facility

and

has

thereafter

conducted

a

siting hearing

pursuant

to

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:

A.

The

City

Council

of the

City

of Kankakee

has

jurisdiction

to

consider

the

application filed herein pursuant to Section 39.2 ofthe Environmental

Protection

Act

based

upon

the

fact

that

the

proposed

site

consisting

of

approximately 400 acres is locatedwithin the municipal boundaries of the City

of Kankakee.

B.

A public hearing was held pursuant to the Act and City ofKankakee Pollution

Control

Facilities

Siting

Ordinance

(hereinafter

“the

Ordinance”)

and the

procedures

set

forth therein.

The

applicant

filed herein

an

application,

as

corrected, which contains

all

ofthe information required by

39.2 (C) ofthe Act

and the applicable ordinance.

C.

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 andc~re~

sample-observation logs

and modeling data.

---

-Page

2-

D.

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.

E.

A

public hearing

on

the

application

commenced

on

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,

7,

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 of the parties herein.

F.

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.

G.

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”).

H.

During the

hearings

all

persons

desiring to

be participants

in

the

hearing,

including

members

of the

public

were

provided

an

opportunity

to

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 ofthis record.

Persons

who appeared

and participated

as objectors were: Kankakee

County,

Waste Management of Illinois,

Inc. and Byron

Sandberg.

J.

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 underuath

nor subject to cross

examination.

---

-Page

3-

K.

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.

L.

The

City

also

sought

input

from

an

independent

geologist,

Mr.

Ralph

Yarborough,

PhD

of

Geo-Technical

Associates,

Inc.

whose

final

report

was

received on July

28,

2003 and is expressly incorporated herein.

M.

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.

N.

A transcript

of the hearing was made and is expressly incorporated herein.

0.

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.

P.

The record of this 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..

No

amendment

to

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.

S.

Motions

were

filed

by various

objectors

prior

to

the

commencement

of the

hearing. Those motions are as follows:

1.

Motion to Disqualify Alderman JoAnne Schwade filedby Waste Management

and

joined

by

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 Aid.

Schwade indicating that

she intended to await the hearings to decide the issue

and desired additional

evidence to determine her final position.

---

-Page

4-

2.

Motion to Quash Siting Hearing filed by Kankakee County. Said motion was

based

upon

the

City

filing

an

action

to

protect its jurisdiction

and

sought

a

finding that the Solid Waste Plan of Kankakee

County was unconstitutional.

The City Council finds that

the decision of the Hearing Officer was correct and

states that

the

action of challenging the legality

of the County’s

Solid Waste

Plan was not and is not indicative

of prejudgement ofthe merits

of the

application

but

a proper

assertion

of its obligation

to protect

its

Home

Rule

authority pursuant

to the Constitution of the State of Illinois.

3.

Motion

To Dismiss Application filed by

Waste Management

of Illinois,

Inc.

The basis ofthe motion was that the application was substantially

the same as

a

previous

application

which

had

previously

been

approved

by

the

City of

Kankakee

but

which approval was reversed

by the Illinois

Pollution

Control

Board. The

City Council does hereby approve the denial of the

motion by the

Hearing

Officer..

The City Council further finds that the prior application was not in fact

disapproved by the local siting authority. Further the City Council finds that the

current

application

is substantially

different than the previous

application in

those portions of the application which describe compliance

with the criteria of

The Act.

(a)

Specifically,

the

service

area

described

by

the

applicant

is

substantially

smaller

in

the

current

application

than

the

prior

application.

(b)

The

current

application

contains

substantial

additional

hydro-

geological information, including three additional volumes not previously

included

in the

prior

application.

(c)

The

current

application

further

proposes alternate designs not included in the prior application including

a

geo-composite liner,

a

double

60

mu,

liner of the

sumps

and

the v-

notches, the incorporation of the

updated flood plain

map,

new studies

regardingendangered species, biology, fish

andmusaels

and mammalogy,

an

archaeological

investigation,

substantial

amounts

of groundwater

impact

modeling

using

a

two

dimensional

model

and

substantial

additional

ground water monitoring data.

T.

A motion was filed by the applicant during the course ofthe hearing requesting

the Hearing Officer to declare the Solid Waste Management Plan ofKankakee

County to be unconstitutional. The Hearing Officer denied said motion upon the

basis

that

he

did not

have the

authority

to

rule upon

said

motion.

The

City

Council,

while

supportive

of the

motion,

hereby

affirms the

decision

of the

Hearing Officer. However, the City Council finds affirmatively that it does agree

that the attempt

of Kankakee County to deny the City ofKankakee the ability

to site a solid waste facilityin the City ofKankakee is an improper infringement

ofits Home Rule authority and inconsistent with intent and purpose ofTheAct.

---

-Page

5-

II. FINDINGS REGARDING

CRITERIA.

Now be it further resolved by the City Council of the 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.

It

is based

upon these criteria that

the

following findings of fact are found to have been offered into evidence.

Criteria

1.

The applicant

has

established

that

the

facility is necessary to

accommodate the waste needs ofthe area it is intended

to serve.

FINDINGS

OF FACT

Evidence in

support

ofthis finding:

A.

The

applicant

has

identified

a

service

area

consisting

of the

City

of

Kankakee, Kankakee County and seven other counties located in Northeastern

Illinois and Northwestern Indiana.

B.

The designation

of the service

area was

supported by the testimony

of

Philip

Kowaiski,

a senior planner

with

Envirogen,

Inc.,

which testimony

is

described in the following findings.

C.

Based

upon

the

needs

of the

service

area,

the

facility

is

smaller

in

disposal capacity than

is necessary for the area as described.

D.

The

only

currently

operating

landfill

in

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.

E.

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

next

30 years

due to the projected

increases in population.

F.

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

6-

---

G.

Kankakee

County argues

Kowaiski failed to consider

the siting of the

proposed addition to the operating WasteManagement 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

7,

2003 and that

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

siting of said approval.

H.

No testimony was offered to contradict the testimony of Kowalski.

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 ofthe area it is intended

to serve.

---

-Page

7-

Criteria

2.

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 ofthis finding:

A.

Daniel

J.

Drommerhausen,

a

senior

hydrogeologist

employed

by

Envirogen

Inc.

testified

on behalf of the

applicant.

He

testified that

he

is

a

licensed professional geologist ofthe State of Illinois. Drommerhausen testified

that

he had conducted hydro geologic investigations ofthe site in question. He

also reviewed regional hydro geologicinvestigations ofthe Illinois State Geologic

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 of the current

application additional borings have been complatedwhichincluda.aRadditioual

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 to

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 x

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 of the dolomite

and

.13 meters per year in the competent Dolomite

---

-Page

8-

He

testified

that

the

slightly

downward

vertical

gradient

in

the

Silurian

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

upward gradient after landfill construction.

Drommerhausen

stressed

in

his

testimony

that

the

Applicant

had

employed a conservative

approach in modeling the hydrogeologic properties of

the site, by creating a model based on

Dolomite which was thinner than that

found

at

the

site.

Using

a

model

with

thinner

Dolomite,

according

to

Drommerhausen,

demonstrates

a

more

conservative

approach

as

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

10 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.

It

is significant

that

neither

Mr.

Schuh,

testifying

for the

County

nor

Mr.

Cravens,

testifying

on

behalf

of

Waste

Management,

contradicted this basic finding.

B.

Devin

Moose

testified,

as

a

professional

engineer,

on

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 setback requirements

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 thepotentiometric surface forthe uppermustaquiferwill

be substantially

higher than the maximum one foot ofleachate

allowed at the base ofthe liner.

---

-Page

9-

Moose

also described the composite liner system consisting of at least

3

feet ofrecompacted

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

a

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

a

description

of

certain

engineering

enhancements that exceeds minimum landfill requirements including a

12 foot

side liner, a structural

fill base on top of the physically competent bedrock and

underneath

the liner system.

Moose testified that the closure process will involve the placement of final

cover of a vegetative layer of grasses.

Post closure activities will include

ground

water monitoring

and leachate

collection

for a period of 30 years

or until

such

time as the JEPA certifies leachate

management

is

no longer required.

C.

Waste Management

of Illinois, Inc.

called

Stuart Cravens, a geologist.

It

was

Cravens

opinion

that

the

entire

depth

of the

Dolomite

was

an

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 of at 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 geologic classifications 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 at

the

interface between the weathered

bedrock

and competent

bedrock.

Cravens

also testified that

over 300

wells exist within

2 miles ofthe site.

He concluded that more than half ofthe wells were drawing water from the lower

zone ofthe Silurian

Dolomite.

D.

Kaiikakee

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

he

respond

to

questions

regarding

the

previous

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 ofthe public

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

to conclude that the issue of

public safety was proven.

E.

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

is the Dean ofthe

College of Engineering

of the

University

of Illinois.

He has

extensive

experience

in

research

and

consulting

regarding

pollution

control

facility sites including nuclear waste sites and several federal

“super fund” sites.

Dr.

Daniel

testified

that

he

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 ofthe 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 of the 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.

He further

testified

that

the

characterization

of the

bedrock

as

an

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

of “double

liners”.

He

testified

that

the

use

of

double

liners

can be

counter-productive

due

to

the

possibility

of damage

to the liner during the installation

of the secondary liner

and further the lack ofproofofany benefit

to be derived from a double liner. He

testified that

the use of a

double liner

was

of no benefit

in

the

design of the

facility.

Addressing the

concerns of the

Pollution

Control Board,

in

its

decision

regarding the previous siting

application,

that the effectiveness ofthe 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

is

accomplished,

he said, the

data resulting from that analysis disclosesthat the permeabilites ofthe Dolomite

are

high

enough

to

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 forthe site.

Because these calculations were made to directly address

the merit

of the issues

raised by

Schuh,

they incorporated

those

contentions.

Relying

on

those

calculations,

Professor

Daniels

stated

that

the”gradient

is

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.

F.

The

City

previously

retained

Dr.

Ralph

Yarborough

to

review

this

application

as

an independent

geologist.

His conclusions

are

included

in

the

record.

He concluded

that

the proposed

landfill

could be

constructed

and the

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

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

the exposed competent dolomite on the landfill invert.

---

-Page

12-

CONCLUSION OF LAW

Based

upon

all

of the testimony provided herein, it

is

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:

1. 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.

3.

The modeling performed by the

applicant is sufficient

and accurate.

4.

The

inward

gradient

design

is

adequate

to

eliminate

the

need

to

model

downward movement of contaminants.

5. The potentiometric surface of the bedrock is sufficiently above the base ofthe

liner and the

maximum

allowable

level of leachate,

which

creates

an inward

gradient which is consistent with the protection of the environment

6.

The

ground water impact evaluations

are sufficiently

accomplished and

are

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

the protection ofthe public health and environment.

7.

The

applicant

and the

testimony

of Stuart

Cravens

are

consistent

in

the

characterization ofthe bedrock system.

8.

The

criticism

of Stuart Cravens regarding the data of the 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

of

knowledge

of

the

conclusions

of

employees

under

his

direct

supervision

on

similar

issues

undermined his credibility.

---

-Page

13-

10.

The

testimony

of

Dr.

David

Daniel

is

persuasive.

His

credentials

and

qualifications indicate substantial knowledge andinvo1v~ri~i~t

both

in the design

and remediation

of solid

waste

disposal sites.

His

clear opinions

were

highly

supportive ofthe applicant’s satisfaction of this criteria. Dr. Daniel’s testimony

is

found to

be

of substantial

importance

due

to

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 of the

application

and the testimony

of the hearing.

The

City

Council

relies

upon

his

opinion

for

the

benefit

of

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

be

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

Environmental

Protection Act in order to provide additional assurance

of compliance

with this criteria.

However, evenwithout 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

of

any

aquifer

that

may

exist,

it

is

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

A.

The

City

Council

does

desire

to

attach

certain

conditions

in

order

to

reassure

the

residents

of the

general

area

of the

viability

of the

design.

Specifically,

City Council requests the following conditions.

1.

The

City shall provide

a duplicate construction quality

assurance

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

the construction

is

consistent

with the final design as permitted by the

IEPA. The Cityprogram will provide inspections, monitoring, observation

and documentation

of the following construction stages:

a.

Excavation,

grading

and

preparation

of

the

subgrade

and

foundation to design parameters.

b.

Placement ofthe compacted low permeability

soil liner.

c.

Placement of geomembrane and geosynthetic components.

d.

Installation

of the leachate management

systems.

e.

Placement offinal cover.

---

-Page

14-

f.

Installation

ofthe gas management

system.

g.

Construction of surface water ditches, channels, berms, basins and

drainage

structures.

h.

Placement

of concrete structures.

The costs of this CQA shall be reimbursed by the applicant

to the

City.

2.

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 ofthe creek and maintenance

ofany spoils derived from that portion of

the cleaning which takes place abutting

the facility.

3.

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

point in the development or operation of the landfill.

4.

Any

leachate

storage

which

would

occur

outside

the

waste

receiving

boundaries,

shall

occur

in

a

location

within

the

boundaries

of

the

facility

boundary

and

shall

be

a

minium

of

5

feet

above

existing

grade

in

an

area

protected by other berms

of a design

and specification

approved by the

City of

Kankakee and the Illinois

Environmental

Protection Agency.

5.

The quality and composition ofleachate

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.

6.

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

and

Minnie

Creek

and

side walls

shall

be

subject

to

the

quality

assurance

program

described above.

7.

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 be

reviewed

by

the

City to

assure

sedimentation

control

during the construction, operation

and closure and any post closure period.

8.

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-

9.

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

aquifers from any contamination as required by the IEPAthrough its permitting

process.

Upon the determination

ofthe 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

to

assure

appropriate

application

of this

condition.

Costs of said consultant shall

be reimbursed to the City by the applicant.

11.

Provide

sampling ofthe 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

be

collected

or

stored

and

develop

a

plan

to

assure

that

the

contaminated water does not leave the site.

13.

Facility

inspections

and

plan

updates

shall

be

performed

at

least

quarterly

to

detect

any

potential

problems

in

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.

Anywashing ofwheels ofthe trucks should

berouteci

through an oil-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

of

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

thepotential source and type of release, the amount offuel or oil that will be kept

on

site

and

how oil or fuel products

will be

contained

or captured

if a release

occurs.

In addition, the plan should describe the type of spill 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

be

required

to meet

Phase

2

MS4

requirements

in

conformity with the

City of Kankakee Separate

Storm Sewer Program.

19.

Because

of

Consumers

Illinois

Water

Company’s

(hereinafter

“CIWC”)

expressed interest in assisting the monitoring ofthe facilityand cooperating with

the applicant, the following additional conditions

are imposed:

a.

The applicant shall allow CIWC to review and advise regarding the

proposed monitoring ofthe upper aquifer.

b.

Allow

CIWC to review and advise regarding all sampling programs

for storm water management systems.

c.

Allow CIWC to review the sampling frequency and the constituents

to be tested as a result

of any dewatering which occur after waste

placement.

d.

Allow CIWC to review the sampling frequency and the constituents

for

which

testing

will

occur

regarding

the

vehicle

fueling

and

maintenance

area.

e.

Allow

CIWC

to

participate

in

construction

quality

insurance

meetings.

20.

The applicant shall cause the pressure grouting of all 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

is

substantial

political

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

established,

without

contradiction,

that

a

double

liner

does

not

offer

any

substantial

additional

protection

and

its installation

may be

harmful

to

the

underlying

liner

system.

However,

as

an

additional

condition,

should

it

be

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

to

install

such

a

double

liner

in

accordance

with

said

statutes or regulations.

---

-Page

17-

Criteria

3:

The facility is located so as to minimize incompatibility

with the

character ofthe surrounding

area

and to minimize the effect and

value ofthe surrounding property.

FINDING OF FACT

Evidence in support of finding:

1.

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.

2.

He

described

the

existing

area

mainly

as

agricultural

with

growing

commercial and industrial

development.

3.

The Kankakee County Zoning Ordinance, previously zoned this property

as industrial.

4.

The City of Kankakee, upon annexation zoned the property as industrial.

Donahue testified that this facility would be compatible

with such uses.

5.

Dr. Peter Poletti testified that the proposed facilitywould have no negative

impact on the surrounding real property values.

6.

He testified regarding

his

studies

of impact

on

real

estate

values

at

a

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.

7.

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.

8.

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-

9.

No empirical evidence or studies were offeredby any other witness to show

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

10.

Poletti

testified that

he

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 offered hereinitis determined that the facility is located

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

area and will have

no

effect on the value of the surrounding

property.

Said finding is

supported

by the

evidence

described

above

and

is

generally without

contradiction.

Applicant

has established

sufficient evidence to satisfy Criteria Number

Three.

---

-Page 19-

Criteria

4.

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:

1.

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

that based upon the most recent

maps of the

Federal Emergency Management

Agency Maps that the entire site

is outside the

100-year Flood Plain.

2.

There has been

no testimony

to the contrary.

3.

Evidence

in

the

form

of public

comment

was

received regarding

past

flooding in

the area

surrounding the facility which

occurred

most severely in

1957.

However, that evidence does not alter the current

maps described above

which consider drainage improvements made since that

time.

4.

The

applicant

has

established

a

proposed

storm

water

management

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

5.

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

5.

The applicant has established that the plan ofoperations for this

facility

is

designed

so

as

to

minimize

the

danger

to

the

surrounding areas from fire, spills or other operational accidents.

FINDINGS OF FACT

Evidence in support ofthis finding:

1.

Devin

Moose

testified

that

this

facility

with

the application contains

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

2.

Moose

also testified and offered evidence that the City ofKankakee Fire

Department had reviewed the Fire Protection Plan and had issued its approval

ofthe plan.

3.

.

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

is

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

1.

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

be

informed

at

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

so

as

to

minimize

the

impact

on

existing

traffic flows.

FINDINGS

OF FACT

Evidence offered in support of this finding:

1.

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.

2.

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

number of residences

affected by the traffic.

3.

Werthmann testified that all relevant intersections intiNor.thernaccess

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.

4.

In his

opinion, the landfill would have no measurable impact on existing

traffic patterns

and

that

the

traffic patterns

were

designed

to

minimize

the

impact on the existing traffic.

5.

Werthmann

further

testified

that

the

applicant

was

agreeing

to

a

commitment to pay for all necessary upgrades

to all

road and intersections

to

accommodate an

access route for trucks

of

80,000 lbs. capacity.

The financial

costs

will

include

the widening

of the roads

at certain

intersections

in order

increase

available turn radius.

6.

There is

no

evidence

indicating that

the

traffic pattern

to and from the

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

7.

It is

a finding of the City of Council of Kankakee that the Northern route

is the preferred route.

8.

If for

any reason

the

Southern

route

is

designed

and permitted

by

the

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

---

-Page 22-

CONCLUSIONS OF

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

1.

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

imposed.

A.

That the Northern route, as described in the testimony,

be utilized

and be the preferred route

B,

That

all

trucks

owned or

under

the

control of the

applicant

be

restricted to the designated route.

C.

That all roadways be brought

up

to standards

in accordance with

the

City of Kankakee Engineering requirements

to accommodate trucks

of 80,000 lbs.

at the expense ofthe applicant.

D.

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

7.

The

applicant

has

established

that

the

facility

not

be

used to

store, treat

or dispose of hazardous waste.

FINDINGS

OF FACT

Evidence in support

of finding:

1.

Devin

Moose,

witness

for the applicant has testified

that this

proposed

facility

will

not

permitted,

nor

will

it

be

used

to

store,

treat

or

dispose

of

hazardous waste.

2.

There is

no

need for a finding or additional

evidence

on this

criteria as

such criteria is not applicable to this

application.

CONCLUSIONS

OF

LAW

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

Criteria

Number Seven is not applicable.

---

-Page 24-

Criteria 8.

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

or

the

Solid

Waste

Planning

and

Recycling

Act.

Alternatively,

if

such

a

plan

does

exist,

the

applicant

has

established

that

the

application is consistent

with the plan.

FINDINGS OF FACT

Evidence in support

of this finding:

1.

Kankakee

County

has

adopted

a

Solid

Waste

Management

Plan,

(hereinafter “the plan”). The plan was

adopted on October

12,

1993.

2.

Prior

to

the

time

of the

adoption

of the

plan

a

solid

waste

advisory

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

of the plan were apparently developed.

3.

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.

4.

The response ofKankakee County is included in City ofKankakee 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.

5.

The

records

which

have

been

produced

and

filed

herein

provide

no

evidence

that

Kankakee

County

provided written

notice

to

all

municipalities

when plan development began.

6.

The

records

which

have

been

produced

and

filed

herein

provide

no

evidence

that Kankakee County provided any periodic written progress reports

to any municipality or any other entity concerning the preparation

of the plan.

7.

The

records

which

have

been

produced

and

filed

herein

provide

no

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-

8.

The

records

which

have

been

produced

and

filed

herein

provide

no

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

by

Kankakee

County.

9.

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

9,

2001.

This amendment

removed the

prohibition

against out-of-county waste.

12.

Thereafter,

the

language

included

in the

October

9,

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 has been conducted pursuant to a landfill agreement signed

by

the

County

and

Waste

Management

in

1974

and

subsequently

amended.

In the event siting approval for an expansion is

obtained, the

landfill will provide a minimum of 20-years ofdisposal capacity through

expansion

of the

Kankakee

landfill.

An

expansion

of the

landfill,

if

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

20

years.

No

new

disposal

facilities

will be

necessary

or

desired,

in

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 ofthe existing landfill is not

approved.”

13.

Pursuant to the evidence offered, the amendment was not submitted to the

City,

nor

any

other

municipalities

or

any other

entity

prior

to,

or

after,

its

adoption.

The

amendment

was

not

submitted

to

the

State

of

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 of the 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 ofthe local Solid Waste Disposal Act and the Solid

Waste Planning and Recycling Act, 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 ofan Environmental

Contingency Escrow Fund,

a Domestic Well 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 ofIllinois 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:

“It is the intent ofKankakee County that no landfills or landfill operations

be 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

an

expansion of the 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 ofany other landfills in the County on land

that

is

not

contiguous

to

the

existing

landfill

is inconsistent

with

this

County’s

Solid

Waste

Management

Plan.

A

noncontiguous

landfill

is

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 is

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 forsiting

of a solid waste

disposal facility within its

own boundaries.

21

At the time ofthis finding,(August 18,

2003), no expansion of any

current

Kankakee County landfill has been approved, including any application for siting

ofany facility near or at the site ofthe currently operating Waste Management

Landfill.

22.

An application was filed with Kankakee County

by Waste Management

ofIllinois,

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 ofjurisdiction

for failure

of proper

notice.

The

applicant requested that the matter be continued. A second application forsiting

was filed by Waste Management

with Kankakee County.

The approval of that

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

7,

2003

when

the

Board

found that

Kankakee

County

lacked jurisdiction

to

conduct the siting hearing which it had previously conducted.

23.

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

disposal ofthe

City ofKankakee’s

solid waste for a guaranteed thirty years.

24.

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

in Kankakee County.

25.

In light

of the fact that

no

expansion of any “existing” landfill has been

approved,

this

application

is

consistent

with the

County’s

desire to

have one

location and one landfill.

26.

No

witness

has

testified

that

the

application

is

inconsistent

with

the

Kankakee

County Solid Waste Plan.

---

-Page 28-

27.

The applicant has

agreed to post

a liability insurance

policy in the face

amount

of $5,000,000.00 which is

in excess ofthe requirements

ofthe plan.

28.

The applicant has instituted a property value guarantee program and has

made offers to surrounding property ownersin compliance with the requirements

ofthe plan. The applicant has also included a domestic wellwater protection plan

which equals or exceeds the requirements ofthe

plan.

29.

The

applicant

has

entered

into

a

host

agreement

with

the

City

of

Kankakee in compliance with the plan.

30.

The site proposed by this application is contiguous

to an existing landfill

and

the

Waste

Management,

Inc.

operating

landfill,

in

that

it

is

in

close

proximity

as the

proposed

site

is

within

two

miles

of the

operating

and

an

existing

landfill.

31..

The County’s plan is

ambiguous on its face as it is applied to these facts.

in that

the recitals

include

a

stated

desire to

avoid

a “second non-contiguous”

landfill. Further the plan allows for the expansion of “the existing landfill” when

in

fact the

undisputed

evidence establishes

that

more than

20

landfills

exist

within Kankakee

County.

CONCLUSIONS

OF LAW

The City Council finds the following:

1.

Kankakee County has not adopted a Solid Waste Management Plan which

is consistent

with the planning requirements

of the Solid Waste Planning and

Recycling Act.

2.

Kankakee

County

failed to

provide the

required

notices

to

the

City of

Kankakee and other municipalities prior to the adoption of the plan and further

failed to notify or provide for any public hearings or other planning processes in

the adoption ofits subsequent

amendments to the plan.

3.

The application is consistent with the Kankakee County Plan as adopted

due to the patent and latent ambiguity of the plan and the failure to define and

describe

terms

of the plan including

“contiguous”

and

“existing”. Because the

current site is located so as to be near, and in an area which is

contiguous, the

site is consistent with the plan.

---

-Page

29-

4.

The

application

is

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.

5.

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.

6.

The applicant has satisfied the requirements

of Criteria Number Eight.

---

-Page

30-

Criteria

9.

The

applicant

has

established

that

this

facility

is

not located

within a regulated recharge area.

FINDINGS

OF FACT

Evidence in support of this finding:

1.

The applicant through Devin Moose has established that the site is not within

any regulated

recharge area as

designated by the State

of Illinois.

Said

finding has

been verified by the IEPA.

CONCLUSIONS OF

LAW

The

facility site

is

not located within

a regulated

recharge

area

and Criteria

Number Nine is

not applicable..

---

-Page

31-

FINAL APPROVAL OF

CITY OF

KANKAKEE

CITY COUNCIL

Based upon all ofsaid findings and conclusions, the City Council does hereby find

that the Siting Application filed herein has satisfied all criteria imposed by Statute and

Ordinance and therefore approves the Siting Applicationsubjectto the conditions stated

herein.

Mayor Donald E. Green

Attest:~~d~~o1

~

Anjani?j

Dumas,

City Clerk

Ayes:

12

Nays:

1

Absent:

0

Abstentions

1

u:wp\cwb\iandfill final findings

2003