NOTICE OF FILING
ATTORNEY’S CERTIFICATE OF SERVICE
BEFORE THE ILINOIS POLLUTION CONTROL BOARD
PETITIONER’S POST-HEARING BRIEF
I. Introduction
II. The siting process and procedures were fundamentally unfair
A. Introduction
up there is to represent the majority ofthe public.... The public
(a) Design
(b) Location
Mr. Zinnen
Mr. Stanford
Mr. Norris
(c) Operation
Mr. Zinnen
Mr. Gelderloos
(a) Compatibility
CRITERION (vi). TRAFFIC PATTERNS
IV. Conclusion
ATTORNEY’S CERTIFICATE OF SERVICE

RECE~VED

CLERK’S OFFICE

JAN

2004

BEFORE THE ILINOIS POLLUTION CONTROL BOARD

STATE OF

ILUNOIS

PoDution Control Board

ROCHELLE WASTE DISPOSAL, L.L.C.

)

Petitioner,

)

No. PCB 03- 218

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

CITY COUNCIL OF THE CITY OF

)

ROCHELLE, ILLINOIS,

)

Respondent.

)

NOTICE OF FILING

TO:

Counsel or Parties on attached Certificate of

Service.

YOU ARE HEREBY NOTIFIED,

that on January

16, 2004, we filed an original

and nine copies ofthe attached Petitioner’s Post-Hearing Briefwith the Illinois Pollution

Control Board by Federal Express delivery, a copy ofwhich is herewith served on you.

ROCHELLE WASTE DISPOSAL, L.L.C.

By:

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735

Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER.

ATTORNEY’S CERTIFICATE OF SERVICE

The undersigned, being first duly sworn on oath, depose and say that I am an

attorney and served the foregoing instrument upon the within named:

Brad Halloran

Richard Porter, Esq~

Illinois Pollution Control Board

Charles Heisten,

Esq.

100 West Randolph Street

Hinshaw & Culbertson

11th Floor

100 Park Avenue

Chicago, IL 60601

Rockford, IL 61101

Email: rporter@hinshawlaw.com

Alan Cooper, Esq.

Rochelle City Attorney

400 May Mart Drive

P.O.

Box 194

Rochelle, IL 61068

by sealing a true and correct copy ofthe same in an envelope, addressed

as shown above,

with sufficient United States postage and by depositing said envelope, so sealed and

stamped, in the United States Mail at Rockford, Illinois,

at or about the hour of,51

o’clockp.m., on the /~L

day ofJanuary, 2004, and by emailing a true and correct

courtesy copy ofsame to Respondent’s counsel at the email address set forth above, at or

about the hour of

o’clock a.m./p~m.,

on the

/9~dayofJanuary, 2004.

Michael F.

O’Brien

Michael F. O’Brien

McGreevy, Johnson & Williams, P.C.

6735 Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

00345966.DOC

THIS DOCUMENT IS PRINTED ON RECYCLED

PAPER.

RECE~VE~

CLERK’S

OFFfCE

JAN

2084

BEFORE THE ILINOIS POLLUTION CONTROL BOA1U$TATE

OF ILUNOIS

P~oHutionControl Board

ROCHELLE WASTE DISPOSAL, L.L.C.

)

Petitioner,

)

No. PCB 03- 218

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

CITY COUNCIL OF THE CITY OF

)

ROCHELLE, ILLiNOIS,

)

Respondent.

)

PETITIONER’S POST-HEARING BRIEF

Michael F. O’Brien

McGreevy, Johnson &

Williams, P.C.

6735 Vistagreen Way

P.O.

Box 2903

Rockford, IL 61132

815/639-3700

815/639-9400 (Fax)

BEFORE THE ILINOIS POLLUTION

CONTROL BOARD

ROCHELLE WASTE DISPOSAL,

L.L.C.

)

Petitioner,

)

No. PCB 03- 218

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

CITY COUNCIL OF THE CITY OF

)

ROCHELLE, ILLINOIS,

)

Respondent.

)

PETITIONER’S POST-HEARING BRIEF

Introduction

The Petitioner in this

petition to review denial ofsiting, Rochelle Waste Disposal,

L.L.C. (“RWD”), filed an Application for Approval ofa Pollution Control Facility with

the Rochelle City Council on November 22,

2002, pursuant to

Section 39.2 ofthe Illinois

Environmental Protection Act (“the Act”).

415 ILCS

5/39.2.

The Application requested

local siting approval for expansion ofthe Rochelle Municipal Landfill No. 2

(“the

existing

facility” or “the Rochelle Landfill”) located in Rochelle.

The Application

consisted ofan eight volume 6,122 page description ofthe proposed facility (“the

Expansion” or “the Subject Site”) as well as 11,980 documents filed with the Illinois

Environmental Protection Agency (“the Agency”) pertaining to the existing facility.

Affidavit ofDaniel L. Zinnen, App.

Ex.

128.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

After a five day public hearing before the Council’s Hearing Officer, beginning

on February 24, 2003,

and ending on March 4, 2003,1 the Hearing Officer recommended

approval ofsiting (Hearing Officer Findings ofFact, Conclusions ofLaw and

Recommendations

2 (“Hearing Officer Report’~)),

and both he and the City Staff

concluded that all the statutory criteria had been met.

City Staff Findings ofFact-

Conclusions ofLaw (“City Staff Report”).

Nevertheless, the City Council,

without ever

meeting to

confer with

one

another, their staff or their expert consultants, convened on

April 24, 2003, and, without deliberation, voted to

deny siting, finding that the Petitioner

had not shown compliance with Criteria (i) (need), (ii) (design, location and operation),

(iii) (incompatibility and

effect on property value), (vi)

(traffic) and (ix) (regulated

recharge zone).

Four days later the Council purported to reopen the hearing, voting to

correct their obvious error on Criterion (ix) and to impose certain conditions in the event

ofa Board reversal.

The Petitioner filed a timelypetition for review, and the Board’s Hearing Officer

held a hearing on December 10, 2003.

The Petitioner asserts both that the Council

violated fundamental fairness and that its decision on the various criteria was against the

manifest weight ofthe evidence.

II.

The siting process and procedures were fundamentally unfair

Introduction

The Rochelle City Council’s sitingprocess violated fundamental fairness forthree

major reasons.

First,

the Council made a legislative decisionbased on political

‘References to the local siting hearing transcript are by date

and

page

(~&,

Tr. 2/24 70, C67 19), and

references to the record pages are

included but may be slightly inaccurate

because-some-o-f the-record

was

duplexed.

References to the Pollution Control Board (“Board”) hearing on December

10, 2003, are by

transcriptpage only with no date.

considerations rather than the evidence.

Second, the Council did that because its

decision-making process was tainted by inappropriate

exparte

communications between

Council members and opponents ofthe application, such as the Concerned Citizens of

Ogle County (“CCOC”), who was

aformal

party

to the proceedings.

See,

e.g., E & B

Hauling, Inc. v. PCB,

116

Ill.App.3d

586,

606,

451 N.E.2d 555,

571,71 Ill.Dec. 587,

603

(2d Dist.

1983), aff’d,

107

I11.2d 33,

41 N.E.2d 664, 89 Ill.Dec. 21(1985).

Third, after

the hearing had ended and a final decision rendered on April 24,

2003, the Council met

again

on April 28, 2003,

and purported to reconsider and revise the decision without

notice to the Petitioner.

The Council

made an inappropriate legislative decision based on politics,

not evidence

Immediately after the April 24, 2003,

meeting denying siting two Council

members

informed a reporter

that they

had

decided the case in accordance with public

opinion.

Councilman Kissick stated immediately afler the vote:

My gut feeling go sic

in was I didn’t see

any signs in anybody’s yard

supporting the landfill.

I really felt based on public input that they did

not was sic

this

landfill.

I felt the other members ofthe council felt they

had been elected by the people and that the people had spoken...

Myjob

up there is

to represent the majority ofthe public....

The public

opinion against this

was

overwhelming.

It wasn

‘t

even close.

Rochelle

News Leader “Councilmen reject landfill expansion” (April 27, 2003),

Petitioner’s Exhibit No. 2 (emphasis added).

Tr.

122.

Councilman Bubik said essentially the same thing:

I voted the

way

the citizens ofthis town

wanted itto go....

The people

ofthis area do not want a mega-landfill.

The message I was getting was

that we didn’t want it.

Rochelle News Leader “Councilmen reject landfill

expansion” (April 27, 2003), Petitioner’s Exhibit No. 2 (emphasis added).

Tr. 62.

In acting on the RWD siting application, the Council was required to act as an

adjudicative body and make its decision in

a manner that was consistent with

fundamental fairness and due process.

Instead, the Council made its decision as if it were

a purely legislative body and not subject to due process constraints.

The legislative

character ofthe Council’s action is demonstrated by the following:

(1) the Council

members’ post-decisional comments, which are admissible;2 (2) the

exparte

political

pressures applied by the CCOC and other siting opponents (which created an “appearance

ofimpropriety” and “may” well have influenced the decision); (3) the Council members’

utter failure to ever conferwith one another at any time prior to or during the meeting at

which their vote was taken;

(4) the failure of the Council to consider or discuss the

recommendations oftheir staff, their counsel or their environmental consultants;

(5)

the

failure ofthe Council to consider or discuss the recommendations oftheir own Hearing

Officer; (6) the Council’s failure to give any legitimate rationale or reasons for its

deci~ion

on the various criteria; (7) the Council’s completely unsupported

finding as to

Criterion (ix)

(regulated recharge zone)

and (8) the

Council’s effort to coverup the

essentially political nature oftheir erroneous decision through an

exparte

reconsideration

four days later.

At the outset it should be said that there has been unfortunate ambiguity and

contradiction under Illinois law regarding whether local siting authorities act legislatively

orjudicially under Section 39.2 ofthe Act and what that means to the democratic and

adjudicative processes.

Thus, under the Act a siting authority member can participate in

decisionmaking despite having “publicly expressed an opinion” (415 ILCS

5/39.2(d)),

but

See, e.g., U.S. v. Hooker Chemicals & Plastics Corp.,

123

F.R.D.

3, 12

(Appendix)

(W.D.N.Y.

1988),

discussed in Petitioner’s Hearing Brief (Hearing OfficerEx.

1).

Board and judicially created

exparte

contact restrictions prevent post-filing lobbying

efforts to

change such

opinion

—

at least if

“prejudice” can be proven.

Proving actual

prejudice (i.e., that the political efforts were successful) is nearly impossible because the

decisionmakers’ “internal thought processes” are not subject to question.

See DiMaggio

Solid Waste Agency ofNorthern Cook County, PCB 89-138,

(1989).

Siting

proceedings will only be fair and effective if this confusion is

eliminated to

make clear

that the process is adjudicatory andjudicial, not legislative, and that the appearance of

impropriety will not be

tolerated

—

particularly when caused by a

party

to the

proceedings.

A local siting authority acts “as a quasi-judicial body” (Waste Management of

Illinois, Inc.

v. Pollution Control Board,

123

Ill.App.3d

1075,

1080, 463 N.E.2d 969, 973,

79 Ill.Dec. 415, 419

(2d Dist.

1984)) and

engages in “adjudication,” not “rule making,”

under

Section 39.2 of

the

Act.

See, e.g., B & E Hauling,

116 Ill.App.3d at

598,

451

N.E.2d at

566,

Ill.Dec. at 598.

However, some precedent has suggested that a local

siting authority “may find the applicant has met the statutory criteria and properly deny

the application based upon legislative-type considerations.”

Southwest Energy Corp. v.

Pollution Control Board, 275 Ill.App.3d

84, 91,

655

N.E.2d 304,

309, 211

Ill.Dec. 401,

406

(4t1~

Dist.

1995).

Contra

Industrial Fuels

& Resources/Illinois, Inc. v. Pollution

Control Board, 227 Ill.App.3d 533,

550,

592 N.E.2d 148,

159,

169 Ill.Dec. 661, 672

(1st

Dist.

1992) (application must be approved if statutory criteria are met regardless of

“political or social or economic consequences”).

The suggestion that siting is a

legislative, rather than a quasi-judicial, function has led to the furtherproposition that the

local governing body “is not held to the same standards as a judicial body.”

Southwest

Energy, 275

Ill.App.3d at

91,

655

N.E.2d at 309,

211

Il1.Dec. at 406.

See

also Land

Lakes Co.

v. Pollution Control Board, 319 Ill.App.3d 41, 50,

743

N.E.2d 188,

195, 252

Ill.Dec. 614,

621

(3d Dist. 2000) (same); Waste Management ofIllinois, Inc.

v. Pollution

Control Board,

175

Ill.App.3d 1023,

1043, 530 N.E.2d 682, 698,

125 Ill.Dec. 524,

540

(2d Dist.

1988) (“Further,

exparte

communications from the public

to their

representatives are

perhaps inevitable

given a county board member’s perceived

legislative position, albeit in these circumstances, they act in an adjudicative role as

well”).

That, in turn, has led to

the “catch-22” described in the Petitioner’s Hearing Brief

(Hearing Officer Ex.

—

the victims of

exparte

communications have been required to

prove resulting “prejudice”

without being permitted to explore the decisionmakers’

internal thought processes, but decisionmakers have been improperly permitted to testify

that the

exparte

communications

did not affect their decision.

It is time for the Board and the courts to make clear that local siting authorities act

in an unequivocally “quasi-judicial” capacity, that their decisions under Section 39.2 of

the Act may not be based on political considerations and that

exparte

contacts will be

scrutinized on an

objective

basis, not on the basis of the decisionmakers’ self-serving

assertions of no prejudice, just as they would be in any otherjudicial or administrative

adjudication.

Thus, reversal should be required without any showing of actual prejudice

if the

exparte

contacts

“may

have influenced” the decision in that a “disinterested

observer” might question the decisionmakers’ impartiality (B

& B Hauling,

116

Tll.App.3d at 598,

451

N.E.2d at

566,

Ill.Dec. at 598)

they create an appearance of

impropriety.

Where there is an

appearance that the decision was based on political pressure,

not the evidence, that establishes precisely such an appearance of impropriety.

$ç~

Ill.

S.Ct. Rule 63A(1) (“Ajudge should be unswayed by partisan interests,public

clamor,

fear ofcriticism”)

(emphasis added).

This standard applies equally to

any administrative

adjudication.

See,

e.g., People ex rel. Wangelin v.

St.

Louis Bridge Co.,

357 Ill. 245,

191

N.E. 300, 304 (1934) (tax assessment proceedings in which court held:

“The rights ofthe

individual and ofthe public cannot be determined according

to public clamor andoutcry.

No administrative board and no court can relieve itself ofits duty or obligation to follow

the law by

yielding to

public demand

in the administration ofthe duties intrusted to it”)

(emphasis

added).

Ifa judge engages in inappropriate

exparte

communications, the issue of

disqualification is not based

on the judge’s subjective belief as to whetherhis impartiality

had been compromised, but on the objective standard ofCanon 3 ofthe Code ofJudicial

Conduct:

“A Judge shall disqualify himself or herself in

a proceeding

which, the

judge’s impartiality might reasonably be questioned....

Ill.

S.Ct. R. 63C(1).

See also Ceresa v. City of

Peru,

133 Ill.App.2d 748, 754, 273 N.E.2d 407, 411

(3d Dist.

1971) (motion to reconsider

may

not

take place at subsequent

meeting).

The supposed “reconsideration” ofthe

decision to impose conditions and

to correct the Criterion (ix)

finding are fundamentally

unfair because they evince an effort to

cover up and conceal what really happened

—

the

Council, influenced by numerous, inappropriate undisclosed

exparte

communications by

a party, sought to

give an appearance oflegitimacy to its decision which it did not

deserve.

In effect, through the illegal reconsideration, the Council sought to

prevent the

Board from

ascertaining whether the

exparte

communications had resulted in actual

prejudice to

the Petitioner and tainted the decision.

The reconsideration, although wholly

ineffective,

is evidence

to be considered by

the Board on the issue offundamental

fairness and prejudice.

It was designed to create an appearance that the Council based

their decision on the record (an appearance which,

as the true record reflects, is not

correct), and the reconsideration was ineffective because the Petitioner’s right to show

that the decision was based on political pressure, not the record, “had intervened.”

Village of North Barrington v. Village ofLake Barrington, 8 Ill.App.3d

50,

52, 288

N.E.2d 242, 244 (2d Dist.

1972) (where annexation petitioners’ rights had intervened,

Village could not reconsider annexation ordinance “at subsequent meeting”).

III.

The Council’s denial of siting was against the manifest weight of the evidence

The Council found that the Petitioner had failed to prove compliance with

Criterion (i) (need), Criterion (ii) (design, location and

operation), Criterion (iii)

(incompatibility and

effect on value of surrounding property), Criterion (vi) (traffic) and

Criterion (ix) (regulated recharge zone).

When the Board reviews a local siting decision, the scope ofreview is to

determine whether that decision was against the “manifest weight ofthe evidence.”

Land

and

Lakes Co.

v. Pollution Control Board, 319 Ill.App.3d 41, 48,

743 N.B.2d.

188,

193,

252 Ill.Dec. 614,

619

(3I(~

Dist. 2000).

A decision is against the manifest weight ofthe

evidence if the opposite result is clearly evident, plain or indisputable from a review of

the evidence.

Land and Lakes,

319 Il1.App.3d at 53, 743 N.E.2d at 197,

252

Ill.Dec. at

623.

“The province ofthe hearing body is to weigh the evidence, resolve conflicts in

testimony, and assess the credibility ofwitnesses.

Merely because the Board could reach

a different conclusion, is not sufficient to warrant reversal.”

Lowe Transfer, Inc. v.

County Board ofMcHenry County, PCB 03-221, pp.

& 22

(2003) (siting denial upheld

based on “abundance ofcontradictory expert testimony”).

Where

—

as in this case

—

the

Petitioner has presented

aprirnafacie

case on each ofthe various criteria based on the

unrebutted testimony

ofimpressive expert witnesses, a decision denying siting is clearly

against the manifest weight of the evidence.

Industrial Fuels

Resources/Illinois, Inc. v.

Pollution Control Board, 227 I11.App.3d 533,

549,

592

N.E.2d 148,

159,

169 Ill.Dec. 661,

672 (1st Dist.

1992) (siting denial reversed where city “did not offer contradicting or

impeaching evidence to rebut” applicant’s

“prima-facie

showing as to each criterion”).

this case, there was utterly no testimony rebutting the Petitioner’s

prima

facie

evidence as

any

ofthe criteria, the only conceivable exception being the testimony of the CCOC’s

hydrogeologist who, although he testified to certain “concerns”

regarding the “location”

element ofCriterion (ii) (Tr. 3/4

57, 78,

112,

158,

159 &

160,

C7406, C7416B,

C7456B-

57B), provided absolutely

iio opinion

as to whether or not the Expansion was so located

as to protect the public health,

safety and welfare under Criterion

(ii).

Thus, there was

actually no rebuttal as to

Criterion (ii) either.

The Council’s negative decision on Criteria

(i),

(ii),

(iii), (vi) and

(ix) was contrary to the recommendations ofits environmental

consultants, contrary to the recommendation of the Hearing Officer and

against the

manifest weight of the evidence.

CRITERION (i).

NEED

The only witness who testified as to Criterion (i)6 was Ms.

Sheryl Smith called by

the Petitioner.

Ms. Smith, a solid waste consultant with 20 years ofexperience in the

industry (Tr. 2/25

15-16, C6963-63A) who has reviewed or prepared need reports for

Criterion (i) requires that the Applicant demonstrate that

“thefacility is necessary to accommodate tire

waste needs ofthe area

it is iiitended to

serve.”

415

ILCS

5139.2(a)(i).

All the Applicant needs to

show is

“that the proposed

facility is ‘expedient’ or ‘reasonably convenient’

vis-à-vis

the area’s waste needs, not that

it is “necessary in absolute terms.”

E & EHauling,

116

Ill.App.3d at

609,

451 N.E.2d at 573,

Ill.Dec. at

605.

fifteen waste disposal facilities (Tr. 2/25

16-17, C6963A-64), determined that the

Expansion was necessary to serve the waste needs ofits designated service area.

Tr. 2/25

33-34, C6972-72A.

The proposed service area includes the 21

northernmost counties in

Illinois comprising the Agency’s Regions

and 2.

Tr. 2/25 22, C6966A;

App. Bx. 44.

Ms. Smith determined the projected population for each county in the service area

over the projected 25 year life ofthe Expansion from 2006 to 2030.

Tr. 2/25

20,

C6965A.

She then reviewed those counties’ solid waste plans to determine the expected

per person waste generation rates, which provided a total waste generation number for the

service area.

That figure was reduced in accordance with the recycling goals from each

countyplan to “come up with the net amount ofwaste requiring disposal from the service

areaover the 25-year planning period.”

Tr. 2/25 20,

C6965A.

In addition to

reducing the

net waste generation figure by the recycling goals, Ms.

Smith’s calculation further (and

more conservatively)

also reduced that figure by a “waste capture rate” based on the

likelihood that the waste from any specific county in the service area would actually be

disposed ofat the Expansion.

Tr. 2/25 24-25, C6967A-68.

Thus, although her “broad

brush”

approach preliminarily suggested

that the service area would have a capacity

shortfall of 123 million tons, Ms.

Smith used a “market share analysis” to more

conservatively assess whether there was need for the Expansion.

Tr. 2/25 24-26,

C6967A-68A. Using that methodology, Ms.

Smith determined that during the anticipated

life ofthe Expansion, the service area would actually have a shortfall ofbetween

17,360,954 million tons

and 67,978,296

million tons ofsolid waste depending upon

whether or not each county met its recycling goal, the likelihood ofwhich, Ms.

Smith

concluded, was “not very high.”

Tr.

2/25 30-31, C6970A-7 1.

Ms. Smith’s calculation of

this net capacity shortfall is shown in App.

Ex. 48.

See

also A173.

Ms.

Smith derived that shortfall by first calculating net waste generation of the

service area for the anticipated life ofthe Expansion and

then determining the permitted

disposal capacity available to the service area as ofJanuary

1, 2006.

She determined that,

depending on recycling, the service area would

generate between 73.1

million and

123.7

million tons of solid waste.

App. Bx. 46 & A155.

Ms.

Smith then evaluated those disposal facilities available to receive waste from

the service area in order to

ascertain “whether there’s enough capacity at those facilities to

receive the waste required to be disposed offrom the service area over the planning

period.”

Tr. 2/25

20, C6965A.

Facilities which have been planned and locally sited need

not be considered in determining need if they have not yet been permitted by the IBPA.

See Tate v. Pollution Control Board,

188

Ill.App.3d 994,

1019-20, 544 N.E.2d 1176,

1193-94, 136 Ill.Dec. 401,

418-19 (4th Dist.

1989).

Ms.

Smith’s investigation indicated

that ofthe

37 disposal facilities servicing the service area (App. Ex. 47), more than half

will be closed by 2006 when the Expansion opens.

Tr. 2/25 29, C6970.

The remaining

capacity ofthose landfills available to

the service are is only

55.8

million tons, which

means the service area has a capacity shortfall ofbetween 17,360,954 tons and

67,978,296 tons (depending on the achievement ofrecycling goals).

App. Ex. 48 & Tr.

2/25

30-3 1, C6970A-71.

Ms. Smith thus concluded there is need for the Expansion’s

capacity of 17,274,000

tons (A130), particularly because it is unlikely the recycling

goals

would actuallybe achieved.

In addition to

the service area’s capacity shortfall, Ms. Smith also based her

opinion ofneed on the basis that the existing facility will reach capacity in 2006, that the

Expansion will provide a minimum of20 years of capacity for Ogle County,

that the use

ofalternate facilities (which will be required if the Expansion is not approved) will be a

more costly alternative for the City, that the Ogle County Host Agreement and

Solid

Waste Management Plan both contemplate the economic benefits and environmental

safeguards to

be provided by the Expansion and

acknowledge an expansion ofthe

Rochelle Landfill and that the capacity serving the service area will be depleted by 2010.

Tr.

2/25

33-35, C6972-73.

App. Ex. 49.

The Council’s determination that the Petitioner failed to prove need is clearly

erroneous because there was utterly no testimony to

the contrary, and the arguments

made by the attorney for the CCOC were, as the Council’s Hearing Officer determined,

essentially “political.”

Hearing Officer Report

15.

In essence, the CCOC’s attack on Ms.

Smith’s determination ofneed was their suggestion that

Ms. Smith’s opinion is based on the assumption that no additional disposal

capacity will come on-line during the life ofthe proposed expansion and

that the Orchard Hills has sufficient disposal capacity to dispose ofOgle

County’s waste formore than 20 years.

ccoc’s

argument

is more

political than legal as it contravenes well established legalprinciples.

Hearing Officer Report

14-15 (emphasis added).

The Hearing Officer determined that the Petitioner had “successfully proven compliance

with Criterion

1” and recommended that the Council find that the facilitywas necessary

to accommodate the waste needs of the area it was intended to serve.

Hearing Officer

Report

17.

Basically, the Hearing Officer noted correctly that consideration ofOgle

County’s need alone would be inappropriate “and would result in the reversal ofany

special condition limiting the service area or a reversal ofthe denial ofsiting.”

Hearing

Officer Report 15.

In addition,

the Hearing Officer correctly stated that “c

ontrary to the

suggestion ofCCOC, it is inappropriate to consider unpermitted capacity in determining

the available disposal capacity.”

Hearing Officer Report

16.

There was simply no basis

the record for determining that the Petitioner had failed to prove need, and the City

Staff Attorney (who now attempts to defend the Council’s decision) also concluded that

the Petitionerhad satisfied Criterion (i). City Staff Report

14.

The Council’s decision on

Criterion (i)

was contrary to the unrebutted expert testimony establishing need, was based

on political considerations, not evidence, is against the manifest weight ofthe evidence

and should be

reversed.

CRITERION

(ii).

DESIGN,

LOCATION AND OPERATION

The Petitioner called three witnesses with respect to

Criterion

(u),7

Mr. Daniel L.

Zinnen, the engineer who designed the landfill, Mr. Steven Stanford,

the hydrogeologist

who

investigated

the Subject Site, and Mr. Clyde Gelderloos, the landfill operator.

Mr.

Zinnen testified to location standards, landfill design and

the proposed plan ofoperations

(also relevant to

Criterion v).

Mr. Stanford testified to location from the standpoint of

hydrogeology,

and Mr. Gelderloos also testified regarding the plan ofoperations.

There

was no rebuttal testimony regarding the design and operations, and, significantly, the

Council concluded that the Petitioner had proven compliance with Criterion (v)

—

plan of

operations.

Resp. Ex.

Thus, it is apparent the Council based its Criterion (ii) decision

on merely the hydrogeology aspect ofthe location element ofthat criterion.

That was,

according to the Council’s Hearing Officer, the “real issue.”

Hearing Officer Report 21.

Criterion (ii) requires

that the Applicant demonstrate that

“thefacility is so designed,

located and

proposedto be operated that thepublic health, safety and welfare will beprotected.”

415

ILCS

5139.2(a)(ii).

In that regard, the CCOC called only one witness, Charles F. Norris, a hydrogeologist

who testified to

“concerns” regarding the hydrogeology, but who, significantly,failed

offer any opinion as

to whether or not there was compliance with

criteriomi (‘ii,):

Thus,

the Petitioner’s

three experts were unrebutted as to their opinions that Criterion (ii) had

been met,

and under Industrial Fuels the Council’s decision on that criterion was against

the manifest weight ofthe evidence.

(a)

Design

Mr. Zinnen is

a licensed professional engineer in Illinois, Indiana, Wisconsin and

Michigan as well as an Illinois professional land surveyor and has worked extensively in

the field ofenvironmental and solid waste engineering since

1985, having worked on

over 100 landfills and transfer stations.

Tr. 2/25

132-35, C7022-23B.

After graduating from the

University

of Illinois with a Bachelor

Science degree

in agricultural engineering with a concentration in soil and water conservation

engineering, Mr. Zinnen worked with several consulting engineering

firms in the field of

environmental and solid waste engineering.

Tr. 2/25

134,

C7023.

Since

1998 Mr.

Zinnen hasbeen with Weaver Boos Consultants,

Inc., and is currently a principal,

managing

the Downers

Grove office with a staff

ofapproximately 25 people including

four professional engineers and one land surveyor.

Tr. 2/25

134-35, C7023-23B.

Mr. Zinnen is quite familiar with the existing facility, having first worked there in

1993 when he was employed by Foth and VanDyke, which had been hired by the City of

Rochelle to

study the feasibility ofcontinuing the Rochelle Landfill operations. Tr. 2/25

136,

C7024.

Mr. Zmnnen also worked forthe City ofRochelle

and for the Petitioner on

the existing facility from

1994 to

1998

in connection with the significant modification

permit allowing the construction ofUnit 2, Phases I and

II.

From

1998 to the present Mr.

Zmnnen has continued to work on the existing facilitywhile at Weaver Boos.

Mr. Zinnen

had primary responsibility

for compiling the various expert reports into the present eight

volume Application.

Tr. 2/25

137, C7024B.

Mr. Zinnen testified that the existing facility was originally permitted in

1972,

beginning operations on the 80 acre parcel at the southeast quadrant ofthe intersection of

the Union Pacific Railroad and Mulford Road.

The original disposal unit, Unit

1, is the

easterly-most 31

acres ofthat 80 acre site and is

depicted App. Ex. 82.

Unit I was built

without any liner or leachate collection and removal system. Tr.

2/25

138, C7025.

Unit 2

a 27 acre site developed under the modern Subtitle D landfill regulations

and

includes a composite liner system and a leachate collection and removal

system.

Unit 2

is the westerly-most 27 acres ofthe existing facility and is separated from Unit

by a narrow “separation zone” known as Unit

Tr. 2/25

138-39, C7025-25B.

Unit

basically a French drain intended to intercept any groundwater impactedby the waste

from Unit

so that it can be collected before it gets

tO the new Unit 2 area.

Tr.

2/25

139,

C7025B.

As part ofthe Expansion, the Petitioner has proposed to

exhume the waste in

the old,

unlined Unit

and to relocate it in the new, lined Expansion.

Tr. 2/25

139-140,

C7025B-26.

Mr. Zmnnen testified in detail as to

the design ofthe landfill, concluding that the

Expansion is so designed that the public health, safety and welfare will be protected if the

Expansion is permitted.

Tr.

2/25

182, C7047.

Mr. Zinnen testified that the purpose of a

landfill is to provide forthe permanent disposal ofwaste in a manner that “minimizes the

potential release ofcontaminants to the environment.” Tr. 2/25

146, C7029.

That is done

by designing the landfill so that it includes “engineered control systems.” A342 & Tr.

2/25

146

162, C7029

& C7037.

Those systems include the bottom composite liner

system (A342), the leachate collection and disposal system (A350-53), the final cover

system (A361-63 & App. Ex.

108), the landfill gas management system (A363-66 &

App.

Ex.

110) and the storm water management system.

A366-68 & App. Bx.

111.

Using photographs

to illustrate

how a landfill is constructed (App. Exs.

88-107),

Mr. Zinnen explained how all of those systems are designed

and constructed pursuant to

rigorous quality control standards.

See Tr.

2/25

15 1-62, C7O31B-35B (liner);

App. Ex.

100; Tr.

2/25

163-67, C7037B-39B

& Tr. 2/25

2 18-220, C7064B-7065B (leachate

collection and removal system having five days storage although only one day required);

Tr.

2/25

168-70,

C7040 & App.

Ex.

108 (final cover system); Tr. 2/25

172, C7042

(gas

management system);

App. Ex.

111

112, A336-367 & Tr. 2/25

174-77, C7043-44B

(storm water management

system including interior system providing 152

acre feet of

storm water storage even though the

100-year, 24 hour storm event would generate only

90.4 acre feet).8

Mr. Zinnen also testified that his firm had provided several other

“geotechnical evaluations” regarding the landfill, the details ofwhich

are set forth in the

Application.

A345-50 &

Tr. 2/25

177-78, C7044B-7045.

Under all ofthose analyses,

the Expansion design “met all ofthe factors ofsafety required by the regulations.”

Tr.

2/25

178, C7045.

There was no rebuttal testimony on this point.

(b)

Location

8Many aspects of the proposed Expansion have been designed well beyond what is required by the

minimumstate

standards.

Thus, this interior drainage system has been designed with an excess

sto~rage

capacity of 61

acre feet over what would be required forthe

100-year, 24 hour storm, the regulations only

requiring that the design be able to handle the 25-year, 24 hour storm event.

Tr.

2/25

176, C7044.

This

interior drainage system provides more detention capacity thanany other facility Mr.

Zinnen knows.

Tr.

2/25

177, C7044B.

Mr. Zinnen

Mr. Zmnnen testified that there are three different kinds oflocation standards

natural conditions, manmade conditions and natural conditions potentially impacting the

landfill’s performance.

The first are standards meant to

minimize the effect the landfill

may have on any nearby natural conditions, such as sensitive natural areas, historic sites

(archeologically or architecturally), proximity to

regulated recharge zones or sole source

aquifers, proximity to wild or scenic rivers, impact on endangered species orhabitats

and

proximity

to any water quality management area.

Tr.

2/25

142-43, C7027-27B.

In this regard, Mr. Zmnnen testified that the only regulated recharge area

designated in Illinois

is near Peoria and that therefore the Expansion meets Criterion (ix)

(Tr. 2/25

143, C7027B); that

the Expansion is not located in a

100-year flood plain and

that therefore the Expansion also meets Criterion

(iv) (Tr. 2/25

145, C7028B); that the

Expansion impacts no nature preserve, natural area, historic site, wild or scenic river

(Tr.

2/25

142-43, C7027-27B), endangered species or

habitat or water quality management

area.

Tr.

2/25

143, C7027B.

The Expansion also complies with all

applicable location

standards involving manmade conditions, such as setbacks from dwellings, schools or

hospitals, distance from airports, setbacks from wells and screening by fencing, berms

and landscape plantings. Tr. 2/25

143-46, C7027B-7029.

The nearest municipal well,

which is located in Creston, is approximately 5,000 feet from the Expansion, which is

approximately five times further than the maximum setback-zone-that could be applied to

that well.

Tr. 2/25

144, C7028.

far as location standards minimizing the potential

effects ofnatural features on the landfill’s performance (Tr.

2/25

145,

C7028B), the

landfill is not located in the 100-year flood plain (Tr. 2/25

145, C7028B), not within 200

feet ofan active fault, not in

an area ofunderground mines or karst features and not

within a seismic impact zone.

Tr.

2/25

145, C7028B.

Thus, Mr. Zinnen testified that his

review

ofthe applicable location standards indicated that the Expansion meets or exceeds

all applicable regulatory location standards.

Tr. 2/25

145- 46, C7028B-29.

There was no

rebuttal testimony.

Mr. Stanford

The Petitioner called Mr.

Stanford, a hydrogeologist employed by Weaver Boos

Consultants as a senior project manager, to testify regarding the Expansion’s location

from the standpoint ofthe Subject Site’s

geology and hydrogeology.

Tr.

3/3

56,C7255B.

Mr Stanford prepared three reports for the Application.

The first is a voluminous

Description ofthe Hydrogeology (A2008-3844) appearing in volumes IV and V ofthe

Application.

Mr. Stanford’s Groundwater Impact Assessment (“GIA”) (A3939-4590)

and Groundwater Monitoring Program (“GMP”) (A4591-696) comprise volume VI.

Such a GIA and GMP are Agency requirements and will be reviewed by Agency experts

before any permit is ever issued, but these are

not

required as part ofa local siting

application.

Nevertheless, the primary criticism ofthe CCOC hydrogeologist was

regarding the GIA and

GMP

—

exactly the same criticism

that witness always makes in all

the siting hearings in which he is involved.

Mr. Stanford has a Bachelor ofScience degree in geology from Indiana

University,

1985, as well as a Master ofScience degree in hydrogeology and

geochemistry from Purdue University,

1998.

Tr. 3/3

57, ~7256.

He is a licensed

professional geologist in the States ofIllinois and Indiana.

Tr.

3/3 57, C7256.

Mr.

Stanford has worked as an environmental hydrogeologist formore than

17 years,

during

that time logging over 15,000

feet of exploratory borings, personally

supervising the

installation ofmore than 300 monitoring wells and investigating the hydrogeology of

dozens of facilities, including municipal solid waste

landfills, hazardous waste facilities

and other installations.

Tr.

3/3

58, C7256B.

Those investigations have included

geophysical surveys, hydraulic testing ofaquifers

and aquitard materials, the analysis of

thousands ofsoil samples and groundwater samples, groundwater flow modeling

and

transport modeling.

Tr. 3/3 58, C7256B.

Mr. Stanford has taught college level geology

at Purdue University and had

mentored

than 30 geologists, engineers and

environmental scientists

on hundreds ofconsulting assignments.

Tr.

3/3

58, C7256B.

Mr. Stanford concluded, after an extensive hydrogeological investigation, that the

Subject Site “is

an excellent

location for a landfill as proposed by the applicant” (Tr. 3/3

115, C7285B) and “that the proposed facility is

so located from a geologic and

hydrogeologic standpoint that as required by Criterion (ii) the public health, safety and

welfare will be protected were the landfill permitted.”

Tr. 3/3

115-16, C7285B-86.

Mr.

Stanford explained there were several bases for that opinion.

First, the Subject

Site has thick and

laterally continuous deposits ofthe highly

impermeable Tiskilwa clay till, which “serves as an effective aquitard and

separates the

base ofthe landfill

from the top ofthe uppermost aquifer.”

Tr. 3/3

116, C7286.

That till

is a minimum of 20 feet thick under the base ofthe proposed landfill, and in manyplaces

is in excess of 100 feet thick.

Tr.

3/3

64, C7259B.

The second basis for Mr. Stanford’s opinion is that the uppermost aquifer is itself

separated

from the sandstone aquifer by the lower dolomite aquitard or the fine grain tills

in ‘the bedrock valley at the north central part of the Subject Site.

Tr.

3/3

116, C7286.

Third, the developmentofa landfill will reduce the already low rates ofvertical recharge

and further slow the already slow rates of groundwater movement.

Tr.

3/3

117, C7286B.

Fourth, because the landfill will be

separated from

the lower sandstone aquifer (which

serves

regional aquifer) by several confining units, there are many opportunities to

monitor for potential releases before the sandstone aquifer could be impacted by any leak

from the landfill.

Tr. 3/3

117, C7286B.

Thus, Mr. Stanford concluded, the Subject Site

is,

“from a hydrogeological standpoint.

excellent location for a landfill” (Tr. 3/3

117, C7286B)

—

the site geology and hydrogeology being the most favorable he had ever

seen for such a facility.

Tr.

3/3

132, C7294.

Mr. Stanford explained the interrelationship between the hydrogeological

investigation, the

G1A

and the GMP.

The hydrogeological investigation identifies the

aquifers beneath the site.

Tr.

3/3

60, C7257B.

Based

on that information, the GIA

evaluates potential impacts in each aquifer

(~,

what would happen to

those aquifers

—

and when

—

if leachate leaked from the landfill).

Tr. 3/3 60,

C7257B.

Based on the

GIA, “the groundwater monitoring program specifies a network ofmonitoring wells to be

regularly tested and analyzed to check for evidence ofcontamination at the locations

where you would first expect in the event ofa release.”

Tr.

3/3

60, C7257B.

In order to conduct his hydrogeological investigation, Mr. Stanford, who was

already familiar with the geology of Illinois, conducted a review ofthe literature

available for the area ofthe Subject Site,

finding over 30 useful reports and publications

from the Illinois Geological Survey, the Illinois

State Water Survey and the United States

Geological Survey.

Tr.

3/3 61, C7258.

In addition, because the Subject Site had already

been extensively investigated by other engineering firms and geologists, Mr. Stanford

had a great deal ofsite specific

information.

Tr.

3/3

61, C7258.

Mr. Stanford testified he

“was impressed by both the quantity and the quality ofthe data” available regarding the

Subject Site.

Tr.

3/3 62, C7258B.

Preliminarily noting that the topography ofthe area slopes from east to west so

that the Village ofCreston to the east occupies the high ground (App. Bx.

56),

Mr.

Stanford testified that surface water drained from east to west and that he would expect

groundwater to

also move that way.

Tr. 3/3 63-64, C7259-59B.

The general geology of

the area is depicted in App. Ex.

57.

Mr. Stanford explained that the first formation

encountered at the Subject Site consists ofa thick, “relatively impermeable” layerof clay

rich till known as the Tiskilwa formation.

Tr.

3/3

64, C7259B.

That till is 50-100 feet

thick over much ofthe Subject Site (and will be a minimum of 18 feet thick under the.

base of the proposed landfill (Tr. 3/3

109,

C7282B)) and

acts as an aquitard or confining

unit through which groundwater would move “only very slowly.”

Tr.

3/3 65, C7260.

the base of the Tiskilwa formation in many areas beneath the Subject Site,.there is a layer

ofsand, which sits above the first bedrock encountered beneath most ofthe Subject Site,

which is the Platteville dolomite.

Tr.

3/3

64, C7259B.

The

upper portion ofthe

Platteville dolomite is weathered and “relatively permeable, but at deeper depths that

dolomite rock is unweathered,

much less permeable and behaves like an aquitard

restricting the

downward flow of groundwater.

Tr. 3/3

65, C7260.

Mr. Sanford

explained that the overlying sands and the upper, weathered portion ofthe dolomite

together comprise the Subject Site’s

“uppermost aquifer” (Tr. 3/3

& 99, C7272

C7277B),

which is the appropriate focus for the Groundwater Monitoring Program.

Tm.

3/3

128, C7292.

Beneath the unweathered dolomite aquitard lie the shale

and sandstone

ofthe GlenwoodlSt. Peter formation, which comprise the top halfofthe main regional

aquifer.

Tr.

3/3 66-67, C7260B-61.

Mr. Stanford testified the Subject Site’s geology was determined by drilling soil

boring all across the Subject Site and keeping boring logs and samples.

That provides a

picture of the geology, and the hydrogeology is then determined through several other

methods, including completing some ofthose borings as monitoring wells.

comparing the water levels or heads of wells terminating in the same aquifer, a picture of

the hydrogeology or groundwater flow emerges because water flows downhill.

Tr.

3/3

68-69, C7261B-62.

In addition to the direction offlow, one also needs to know the rate

offlow, and that in turn depends upon the gradient (i.e., the slope ofthe flow), the

permeability of the geologic strata and the porosity ofthe material.

Tr.

3/3 68-70,

C7261B-62B.

Mr. Stanford testified that a geologist refers to the investigation ofsubsurface

conditions as the “characterization” of a site

—

the drilling and other efforts put into

understanding those subsurface conditions.

Tm. 3/3

71, C7263.

Explaining that the

Subject Site had been the subject of 118 borings at 79 separate locations forming a grid

across the Subject Site (depicted in App.

Ex. 58), Mr. Stanford testified that he had never

seen as many borings at any proposed landfill site.

Tr.

3/3 71, C7263.

The available

data, which Mr. Stanford verified for accuracy or gathered anew,

included not only those

118 borings (62 advanced to

the top ofthe bedrock, 36 penetrating

10 or more feet into

the bedrock and 7 advanced 50 or more feet into the bedrock), but also

81 monitoring

wells,

144 soil samples, 23 sets of water level measurements from May 1996 through

July 2002, and numerous

field and laboratory tests ofpermeability or hydraulic

conductivity, including 79 slug tests, 36 packer tests and 30 laboratory permeability tests.

Tr.

3/3

80-81,

C7267B-68.

See

also App.

Exs. 60 &

61.

The Subject Site had been so thoroughly characterized that Mr. Stanford testified

it was “most extensive

site characterization” he had ever seen, far more than is typical for

local landfill siting approval application and much more than what the Agency would

require even for a construction permit

—

an investigation that “far exceeded the minimum

site characterization requirements in the State ofIllinois.”

Tr.

3/3

82, C7268B.

For

example, the Agency requires a minimum of20 soil borings, whereas the Subject Site has

118.

Tr. 3/3

82,

C7268B.

The Agency only requires four quarterly water level

measurements, whereas the Subject Site has had 23

such sets ofdata.

Tr.

3/3

82,

C7268B.

This additional data merely confirmed Mr. Stanford’s preliminary opinion that

the Subject Site would be an excellent location for a landfill.

Tr. 3/3

79, C7267.

After assuring himself that the characterization data for the Subject Site was

adequate, Mr. Stanford then used that datato

assess the geology and hydrogeology ofthe

Subject

Site.

He started by preparing a topographic map ofthe bedrock surface

(App. Ex.

62) from the 62 borings

advanced to the bedrock. Jr.

3/3

82-84, C7269-70.

Understanding that bedrock topography was important because

the bedrock surface is the

maj orpart ofthe uppermost aquifer, and “the shape and structure ofthe surface is going

have an influence on the groundwater flow beneath the site.”

Tr.

3/3

84, C7270.

Also,

one ofthe important features ofthat bedrock surface map is the valley in the north central

part ofthe Subject Site.

Using the

grid of 118 boring across the Subject Site (App. Ex.

58), Mr. Stanford

prepared

14 cross sections ofthe Subject Site,

A-A’ through E-E’ running east and west

and F-F’ through N-N’ running north and south.

A2148-61.

Those cross sections, each

representing a slice

through

the earth to show the subsurface geology, were donewith

10:1

vertical exaggeration, meaning that in order to best illustrate the geological strata,

the scale is ten times greater in the vertical direction.

For that reason, vertical details,

such as the so-called bedrock valley, are greatly exaggerated.

As shown on cross section

B-B’

(App. Bx. 63), the true scale drawing at the bottom reveals that the bedrock valley is

really just a “broad depression in surface ofthe bedrock,” not a steep valley at all.

Tr.

3/3

86, C7271.

Mr. Stanford used three of the cross sections (B-B’, J-J’

and M-M’) to illustrate

the geology ofthe Subject Site during the hearing.

Each depicts the laterally continuous,

low permeability Tiskilwa till at the top ofthe Subject

Site having a thickness of

generally 50-100 or more feet.

App. Exs.

63-65.

Tm.

3/3

85-86, 92-94, C7270B-71,

C7274-75.

Over most ofthe Subject Site, the subsurface is much like M-M’

(App. Ex.

65), which in turn is very much like the idealized cross section (App. Bx.

57) that Mr.

Stanford expected at the Subject Site based on the regional geology.

Tr.

3/3

94, C7275.

The bedrock valley is somewhat different, but

over most ofthe Subject Site, the geology

consists of50-100 feet ofthe Tiskilwa clay, which overlies the sands and weathered

surface ofthe dolomite (forming the uppermost aquifer ofabout 20-35 feet), which

overlies

5-75

feet ofthe lower dolomite aquitard, which overlies 200 feet ofthe

GlenwoodlSt.

Peter sandstone aquifer.

App.

Ex.

57.

Thus, the

majority ofthe Subject

Site looks like cross

section M-M’ with the bedrock forming “a relatively broad plain”

under 50-100 feet

ofclay.

Tr. 3/3

94-95, C7275-75B & App. Ex. 65.

Mr. Stanford used cross sections B-B’ and J-J’

illustrate that small area ofthe

Subject Site over the bedrock valley,

pointing out that where the dolomite

is eroded

away, the Petitioner already has monitoring wells in the Glenwood/St. Peter Sandstone,

which is an excellent place to monitor groundwater flow in the area ofthe bedrock valley.

Tr.

3/3

88, C7272.

Cross section J-J’

illustrated another important relationship between

the landfill design and the hydrogeology because it reflects an outline ofthe base ofthe

landfill.

App. Ex. 64.

The shallow, more permeable sands and gravels ofthe so-called

Henry formation will be largely excavated during the course oflandfill construction.

Tr.

3/3

9 1-92, C7273B-74.

Once having determined the geology ofthe Subject

Site, Mr. Stanford then

prepared potentiometric surface maps ofthe water table,

the uppermost aquifer and the

Glenwood/St.

Peter in order to better understand the hydrogeology.

A2123-37 (maps of

water level surfaces on four dates in

1999, 2001

& 2002).

Using the potentiometric maps

for July

10, 2002 (App.

Bxs.

66-68), Mr. Stanford testified that groundwater flow in the

shallow water table was essentially the same as surface water flow

—

from east to west.

Tr.

3/3

98-99, C7277-77B.

In the uppermost aquifer the flow corresponded to

the ridge

in the bedrock at the westerly portion of the Subject Site with groundwater flowing in

basically all four directions

from that high point.

Tm. 3/3

100, C7278.

The steepest

horizontal gradients were into the bedrock valley, and that might indicate some

connection between the uppermost aquifer and the Glenwood/St. Peter sandstone in the

area ofthe valley, but Mr. Stanford said that also may be nothing more than that the seals

ofthe two wells at that location (the G57 well) are cross connected.

Tm. 3/3

25 1-52,

C7353B.

In any event, because ofthe possibility ofconnection between the uppermost

aquifer and the Glenwood/St.

Peter, Mr. Stanford testified he took that possibility into

account in performing the GIA.

Tm. 3/3

100, C7278B.

The potentiometric map for the Glenwood/St Peter was not a reliable indicator of

flow direction or gradient,

according to Mr.

Stanford, because there were only five wells

for the entire site, and they are completed in

different geologic units at dissimilar

elevations.

Tr.

3/3

102, C7279.

Therefore, all the map indicated was that the gradients in

that formation are rather shallow.

Tr. 3/3

102-03, C7279-79B.

Thus, in order to

understand flow direction in that regional aquifer, Mr. Stanford looked to

a more regional

view as reflected in App. Ex. 69.

That exhibit shows the results ofthe

1995

Illinois

Water Survey analysis ofthe water levels in the Glenwood/St. Peter with the heads at the

Creston municipal wells at about 800 feet MSL and the Rochelle wells to the west about

740 feet MSL.

That study also indicated that the groundwater divide (also

depicted on

App. Ex. 69) was

several miles east of Creston with water to the west of that divide

flowing to the west in the GlenwoodlSt. Peter sandstone.

Tm.

3/3

103-04, C7279B-80.

the Subject

Site the heads in the GlenwoodlSt. Peter wells are at about 780 feet MSL,

which is entirely consistent with such an east to west flow (i.e., away from the Creston

wells,

not towards them as suggested by the CCOC’s witness, Mr. Norris).

Tm.

3/3

104,

C7280.

The other significant fact about the potentiometric maps is that they indicate a

downward vertical gradient with head levels getting lower in the lower aquifers.

Tr.

3/3

104-06, C7280-81.

If the aquifers were actually connected (as Mr. Norris

has suggested

(Tr. 3/4

82-83, C7418-18B

)),

there would not be three different water tables.

Tr.

3/3

106, C728 1.

Thus, the potentiometric surface maps indicate that the aquifers are in fact

confined, not directly connected to one another and that the direction offlow at the

Subject

Site is downward, not upward as is the case at some sites.

Tr. 3/3

104-08,

C7280-82.

Mr. Stanford further explained that similar fluctuations in water table levels

in the various aquifers did not indicate direct hydraulic connection between them (as Mr.

Norris suggested), but were likely just the result ofthe result of the weight ofwater and

the effect ofthat pressure on lower confined aquifers.

Tm.

3/3 252,

C7354.

Other likely

causes ofthat similar

fluctuation in confined aquifers would include the effect of storage

and barometric pressure.

Tr. 3/3 252-53, C7354-54B.

Mr. Stanford also testified that he had calculated the rate of flow horizontally in

the uppermost aquifer, concluding that the rate horizontally is

from 4 inches to 4

feetper

year, which is from

12 to more than 200 times faster than the vertical flow rates.

Tr.

3/3

108-10, C7282-83.

That makes the uppermost aquifer the best formation to monitor

because any contaminants leaking from the landfill would move more quickly laterally

than vertically in that formation.

Tr. 3/3

109-10, C7282B-83.

Mr. Stanford also

did a

water balance analysis to

check his calculations against the reported recharge rate forthe

area, and that confirmed that “water currently moves downward at a very slow rate at

approximately one-quarter ofan inch per year.”

Tr. 3/3

114, C7285.

Mr.

Stanford thus concluded that the proposed Expansion is so located from a

geologic and hydrogeologic standpoint that the public health, safety and welfare will be

protected if the Expansion is permitted.

Tm. 3/3

115-16, C7285B-86.

He proceeded to

further confirm that opinion by performing the Groundwater Impact Assessment or GIA.

The GIA is

a conservative analysis performed with computer modelhigto

demonstrate in

accordance with Agency requirements, that even if the landfill does leak, groundwater

will not be impacted 100 feet

from

the waste boundary

for at least

100

years after closure

of the landfill approximately 28

years from now.

Tr. 3/3

117-18, C7286B-87.

Such a

GIA is not required for local siting approval but is an Agency requirement for permitting

purposes and was requested by the Petitioner so as to demonstrate to the Council the

safety of the landfill’s geological and hydrogeological location.

Tr. 3/3

118,

C7287B.

Mr. Stanford used the computer program Migrate V9, the program most commonly used

for Agency permit applications.

Tm.

3/3

119-20, C7288-88B.

The GIA is required

use highly conservative assumptions.

For example, the

Agency requires not only the assumption that the landfill leaks, but that it had over 300

leaks.

That is a very conservative assumption because Mr.

Stanford does not believe the

landfill will have any leaks.

He is unaware

of any such lined, Subtitle D landfill leaking

anywhere in the United States, which the Dean ofthe University ofIllinois Engineering

School also recently confirmed to be the case.

Tr.

3/3

120-2 1, C7288-88B.

Mr. Stanford also assumed that there would be one

foot of leachate all across the

landfill liner (Tr. 3/3

150

& 243, C7303

& C7349B) even though the liner is sloped so

that such abuild-up

could not actually occur and even though the landfill has a leachate

collection and removal system.

Tr. 3/3

121, C7288B.

Mr. Stanford further assumed that

the leachate would retain its

full strength for

128 years even though it would actually

degrade into carbon dioxide and water, “which are both completely inert.”

Tr. 3/3

122-

23, C7289-89B.

In the real world, according to Mr. Stanford, if leachate actually took

200 hundred years to

reach an aquifer, there would be by that time “almost nothing left of

it.”

Tr. 3/3

253-54,

C7354B-55.

Mr. Stanford further ignored the beneficial effects of

retardation, which also occurs in the real world because contaminants do not actually

move as quickly as the water.

Tr. 3/3

122, C7289.

The GIA was further made conservative by treating several ofthe minor sand

seams in the Tiskilwa

—

seams which actually appeared to be discontinuous

as if they

were actually continuous pathways for potential contaminant migration.

Tr. 3/3

123,

C7289B.

In fact, in response to questions

from the City’s attorney, Mr~Stanford agreed

that the published literature indicates that the Tiskilwa till is remarkably uniform with the

sand lenses being discontinuous, which is consistent with Mr. Ziimen’s reported

observations at the Subject Site,

including what he has seen in open excavations there.

Tm. 3/3

246-47, C7351-51B.

Although when the landfill is constructed, it will significantly reduce the recharge

to the

Subject Site and consequently reduce the rates of lateral

flow in the uppermost

aquifer, Mr. Stanford’s GIA assumed no such reduction in the rates of groundwater flow.

Tr. 3/3

123-24, C7289B-90.

Also, even though the lower dolomite is a aquitard,

Mr.

Stanford “modeled it much more like an aquifer and

a fractured one at that.”

Tr. 3/3

124,

C7290.

Finally, because of the conservative method he used to estimate vertical

dispersion coefficients, the exaggerated horizontal flow rate incorporated into the

GI.A

computer model similarly exaggerated the vertical transport ofcontaminants.

Tr.

3/3

124, C7290.

Despite all those highly conservative assumptions, Mr. Stanford determined

through the GIA’s initial or “baseline assessment” that there would be no groundwater

impact on either the uppermost aquifer or the lower sandstone aquifer for more than 100

years after closure.

Tr.

3/3

125, C7290B.

Far exceeding the Illinois regulatory

requirement, the

GIA showed that there would be no impact on the uppermost aquifer for

more than 200 years

and no impact on the

Glenwood/St. Peter for more than 300

years.

Tr.

3/3

125-26, C7290B-91.

Because there will actually be both degradation ofthe

leachate as well as real world retardation, Mr. Stanford opined that this landfill would

never impact groundwater in the uppermost aquifer.

Tr.

3/3

126,

C729 1.

That means,

according

Mr. Stanford, that “this landfill is well-designed and

it’s well-matched to the

hydrogeologic conditions at the site.”

Tr.

3/3

126, C7291.

addition

to the baseline analysis, Mr. Stanford also performed a “sensitivity

analysis,” running the

model

92 additional times.

That confirmed that there would be no

impact on groundwater quality anywhere within the uppermostaquifer or the sandstone

aquifer for at least a hundred years following closure.

It also confirmed that the sand,

deposits

within the till together with the uppermost aquifer constitute the most

appropriate focus for the groundwater monitoring program.

Tr.

3/3

127-28, C7291B-92.

On the basis ofthe GIA,

Mr.

Stanford developed that Groundwater Monitoring

Program

or GMP, a network of

monitoring wells encircling the Subject Site (as depicted in

App. Ex. 74), which will be regularly sampled and analyzed to monitor for potential

releases from the landfill.

Tm.

3/3

128-29, C7292-92B.

Mr. Stanford noted that

groundwater flow direction

is subject to the annual review and

reporting and that

adjustments to

the plan may be necessary over time.

Tm.

3/3

129-30, C7292B-93.

Mr.

Stanford’s opinion is that the GMP, whichwill certainly be modified

and expanded, will.

provide for the

reliable protection of potential releases from the proposed Expansion.

Tr.

3/3

131, C7293B.

Mr. Stanford summarized well his reasons forbelieving that the Subject Site is an

excellent location for the proposed Expansion:

The site geology and hydrogeology are the most favorable that I’ve ever

seen for a facility like this.

We have here among the deepest deposits of

low permeability and clay till anywhere in the

State ofIllinois.

The

groundwater impact assessment including

five separate conceptual models

supported by 92 different sensitivity analyses indicates that the landfill

will comply with all ofthe groundwater protection requirements.

Moreover, because the

GIA indicates no impacts anywhere in the

uppermost

aquifer let alone the underlying sandstone aquifer, the

groundwater protection

standard is not only met by the proposed facility,

but far exceeds it.

The hydrogeology of the site provides many

opportunities for monitoring before potential impacts can reach the

regional sandstone aquifer below.

Finally,

the sandstone aquifer below is

separated from the base ofthe landfill by two aquitard units,

confining

units

including

the Tiskilwa Till

and dolomite aquitard.

The proposed

Rochelle Municipal Landfill No. 2 expansion has been designed to take

advantage ofthe existing hydrogeology and is therefbreprotective ofthe

public health, safety and

welfare.

Tr.

3/3

132-33, C7294-94B.

Mr. Norris offered no opinion to rebut Mr. Stanford’s opinion that the Expansion

met

Criterion (ii) and would protect the public health, safety and welfare.

In addition,

the

CCOC’s cross-examination ofMr. Zinnen and Mr. Stanford provided no impeachment of

their positive opinions as to design and location.

Although the CCOC questioned groundwater impacts in the Unit 3

French drain

along the uncertain Unit

waste boundary (Tr.

3/4 70-72, C7412B-13B), such impacts

might be expected

from such an

obsolete, unlined area (which RWD essentially inherited

from the City when it took over Rochelle’s

existing landfill

Unit

1).

The more salient

point is that there is already a Subtitle D landfill at the Subject Site (Unit 2), which

has

been proven protective ofthe public health, safety and welfare as evidenced by both the

Agency permit

and the fact that Unit 2

not

impacting Unit 3, which is in close

proximity.

Tm.

3/4

70-73, C7412B-14.

Obviously, the Agency has already concluded

that this engineering design and location meet the applicable state standards (as do the

already approved Groundwater Impact Assessment and Groundwater Monitoring

Program required for Unit 2’s permit and operation), and the Application merely

requested an Expansion.

There was no evidence or suggestion that the Expansion will be

any different than what the Agency has already permitted in this location orhow the

Expansion area is any different than the Unit 2 area.

The CCOC suggested numerous generic objections to the design and location

that the HDPE liner may deteriorate

in the presence of 100

solutions ofchemicals (far

in excess ofnormal leachate) (Tr. 2/25

200-05 & 286-87, C7055B-58

C7098B-99);

that the design only meets so-called “minimum” standards (Tr. 2/25

82 & 197,

C6996B

C7054); that parts ofthe facility may have an inward gradient (as if that were an

undesirable feature, which is not true) (Tr.

2/25

195-97, C7053-54); that geotextile

clogging ofthe leachate collection system

could be a problem even though it is not (Tr.

2/25 209-12, C7060-61B); that animals might get into the final cover drain pipes even

though the pipes are screened to

prevent that

(Tr. 2/25 214,

C7062B); that leachate

storage might be insufficient

(Tm. 2/25 2 19-23, C7065-67) even though RWD propOsed

far more than required (Tr. 2/25

177, C7044B); that foundation soils might compress (Tr.

2/25 224-27, C7067B-69); that final cover might experience differential settlement and

require repairs (Tr. 2/25

227-33, C7069-72); or that small amounts ofhazardous

waste

might be disposed ofby consumers (nail polish, paint, etc.) as they are in every landfill

without material impact.

Tr.2/25 204-06 & 24 1-43, C7057B-58B

& C7076-77.

Those

are all facile “objections” that could be leveled at

any

state ofthe art sanitary landfill.

None ofthese supposed cross-examinationpoints impeached or rebutted the Petitioner’s

well- supported expert opinions that the proposed Expansion was safe from all

standpoints

—

design, location (including hydrogeology) and proposed operations.

Mr. Norris

Mr. Norris, a geologist with Geo-Hydro, Inc., ofColorado, was the only witness

called by the CCOC.

Tr.

3/4 36-37 & CCOC Bx.

10, C7395B-96.

Although Mr. Norris

testified to various “concerns” he had with the hydrogeology (Tr. 3/4

57, 78,

112,

158,

159

160, C7406, C7416B,

C7456B-57B),

he provided no opinion as to whether or not

the Expansion

was so located as to protect the public health, safety andwelfare under

criterioji

(ii).

Significantly,

agreed with Mr. Stanford that the Subject Site has been

extensively characterized.

Mr. Norris stated:

this site has

for a landfill site probably has more piezometers, more

borings more evenly spaced across the site than any I believe I have

reviewed.

So the data available for characterization is probably as or

imiore extensive here thami of

any

other

site I have seen.’

Tr.

3/4

143-44,

C7449-49B

(emphasis added).

The only definite opinions Mr. Norris did offer were that the Petitioner’s

GIA

—

an analysis not required for local siting approval (Tm. 3/3

118,

C7287)

—

had not

accurately modeled existing site conditions, that the GIA had not “accurately predicted

postdevelopment

conditions for monitoring purposes” (Tm. 3/4 66,

C74 1 OB (emphasis

added)), that the Tiskilwa till did not offer the degree ofprotection promised by the

applicant and that the Petitioner’s GMP would not be able to

monitor the potential escape

ofcontaminants because

“until the impact ofthephysicalpresence ofthis proposed site

is modelled

you can’t even begin that exercise because you are working with a flow

system that even the applicant acknowledges will be subject to

a recharge shadow effect.”

Tr. 3/4

113-14, C7434-34B (emphasis added).

Mr. Norris also suggested that the

GIA

shows

that the site will not meet the performance criteria for ammonia

(Tr. 3/4

55-56,

C7405-05B), but his claim ignores basic chemistry.

explained by Mr. Stanford, the

GIA predicts a concentration at a given point in time, which is not additive to background

concentrations.

Tr.

3/3

156, C7306.

Mixing two solutions of0.5 mg/l will only increase

the volume, not the concentration.

In other words, Mr. Norris, who has himself never performed a GIA (Tr. 3/4

139-

40, C7447-47B), has never submitted

a GIA to

the Agency and has never even used the

Migrate V9 computer program

(Tm. 3/4 209-10, C7482-82B),9

is suggesting that Mr.

Stanford’s GIA is flawed because it supposedly did not considerwhat would happen to

the flow rates once the landfill was actually constructed because ofthat “recharge

shadow.”

Mr. Stanford, who

familiar with the program and

has

performed GIA’s,

directly disputed that, pointing out that after construction there will be less recharge and

that

“both

vertical and horizontal rates ofgroundwater flow will be slowing down.”

Tm.

3/3

123-24, C7289B-90 (emphasis added).

Thus, whereas Mr. Norris suggests “you can’t

even begin” to design a GMP until the reduced post-construction recharge has been

modelled, Mr. Stanford testified that GIA did conservatively model that impact by

retaining the faster rates offlow (i.e., sooner groundwater impacts).

Tr. 3/3

123-24,

C7289B-90.

As far as the Tiskilwa till is concerned, Mr. Norris’ basis for suggesting that it

was not as impermeable as represented by the Petitioner was (1) the R- 107 monitoring

well, which is screened in a sand lens and located about 150-200 feet from the edge of

Unit

1, has methane gas impacts, which supposedly could not occur if the Tiskilwa were

~Mr. Norris acknowledges that Mr. Stanford is correct in stating (Tr.3/3

119, C7287B) that Migrate V9

the most commonly used GIA program acceptedby the Agency.

Tr. 3/4 209, C7482

really as impermeable as the Application suggests

(Tm.

3/4 74-78, C7414B-16B);’°9(2)

the similar seasonal water table fluctuations in the till and the lower aquifers (as reflected

by Mr. Norris’ hydrographs, which are CCOC Bx.

11, Norris J-N) supposedly “requires

virtually an instantaneous connection of flow betweenthosetwo materials”

(Tm. 3/4

82-

83,

C7418B-19); and (3) at certain select locations the vertical gradient is

lower between

the overlying tills and the uppermost aquifer,

which Mr. Norris contends (erroneously)

can only be explained by a change in the water flux or hydraulic conductivity.

Tr. 3/4 94,

C7424B.

Norris

conceded that the R- 107 gas impact is

likely due to

nothing more than that

Unit

and that nearby well are connected by the granular or sand unit in which that well

is screened.

Tr. 3/4

194-96, C7474B-75B.

Thus, as the Council’s Hearing Officer

recognized, that provides utterly no basis for suggesting that the Tiskilwa till is less

permeable than set

forth in the Application.

Hearing Officer Reiort 26.

Mr. Norris

contends that there is direct hydraulic

connection between the till

and tl1e uppermost

aquifer which is “likely” the result offractures in the till (Tr.

3/4 152-53, C7453B-54),

but that obviously is not possible because, as Mr.

Stanford pointed out, if the units were

directly connected, there could not be

—

as there clearly are

three distinctly different

water tables.

Tm. 3/3

106, C7281.

Thus, the Council’s Hearing Officer agreed that Mr.

Norris could not be correct on this point.

Hearing Officer Report 27.

Although

dismissing Mr. Stanford’s testimony that the fluctuations were likely due to

atmospheric

or weight pressure on confined aquifers or storativity effects (Tm. 3/3

252-53, C7354-

‘°TheApplication states that,

according to the slug tests,

the Tiskilwa till has a geometric meanhydraulic

conductivity of 1.4

x I0~

cm/sec, which is several orders of magnitude less permeable than the most

permeable intra-till granular units havinga hydraulic conductivity of3.1

10~

cm/sec.

A2049.

54B), Mr. Norris did vaguely concede that “the idea that it can be related to differences in

storativity is something that can be pursued.”

Tr. 3/4

82-83, C7418B-19.

Mr. Norris’ contention that lower vertical gradients at a very few ofthe

monitoring well nests suggests “that the characteristics ofthe Tiskilwa till are

dramatically different than the interpretations ofthe applicant”(Tr. 3/4 93,

C7424)

is an

unsubstantiated hypothesis.

There are anumber of different reasons that the vertical

gradient in

select locations could be lower than the site wide average that have nothing to

do with the hydraulic conductivity ofthe till.

Mr. Norris concedes that a lower gradient

may have nothing to do with the hydraulic

conductivity and that his

entire analysis in

this

regard might be based on “erroneous data.”

(Tm. 3/4

94-95,

C7424B-25).

Mr. Norris

only

implies that the lower vertical gradient, in a very few instances amongst an enormous

amount of data, suggests a higher hydraulic conductivity in the Tiskilwa till than

presented in the Application.

He offers no evidence to verify his hypothesis.

In fact, Mr.

Norris’ statements that the Tiskilwa till is so porous as to allow instantaneous flow

throughout the unit (Tr. 3/4 82-83, C7418B-19) would mean that the Tiskilwa till would

form an aquifer, which, as the Council’s Hearing Officer noted, ignores the voluminous

amounts ofdata contained in the Application and transcripts ofthis proceeding that

unquestionably prove otherwise.

Hearing Officer Report 26.

In fact, the Tiskilwa till

the site is not considered a Potable Resource Groundwater by the state (impaired due to

low conductivity) (A2065),

the average hydraulic conductivity of

the lower till is

1.4 B-

06 cm/sec (A2184) and,

as pointed

out by the City (Tm.

3/3 246, C7351), the Illinois

Geological Surveyhas noted that the Tiskilwa till is “remarkably uniform.

any sand

lenses would be discontinuous.”

It is typical ofMr. Norris’ testimony that he picks out

an extraneous piece ofdata from

a much larger and comprehensive data set to conjure up

a hypothesis

that contradicts the overwhelming weight ofthe evidence.

Mr. Norris’ testimony must be considered in the context ofthe “puffing” ofhis

supposed qualifications, his complete lack ofexperience in actually performing any of

the work he is so quick to criticize and his obvious bias.

Mr. Norris, who lists in his

resume the degree “Ph. D., Hydrogeology, all but dissertation completed,

1992” has

apparently been working on that degree for 33 years (although he only counts back to

1987).

Tr. 3/4

136-37, C7445B-46.

He was only licensed as a geologist in the past

couple years.

Mr. Norris claims in his resume that he was the “Project Manager and

Hydrogeologist for a geologic and hydrogeologic

assessment of a proposed regional

landfill in Will County, Illinois,” that he “documented numerous errors in the

application” and that the “Application was approved with some

modifications.”

CCOC Bx.

10, Landfill Services.

Although one might assume Mm. Norris was the

siting

authority’s hydrogeologist responsible for imposing those numerous modifications, he

fails to mention in the resume that the siting authority actually rejected his testimony,

stating, among other things, in their FinalReport:

Due to the lack of concrete evidence and

analysis backing Mr. Norris’s

claims the county does not support his view that the interpretation ofthe

hydrogeologic investigation for the proposed site was performed

incorrectly.

Tm.

3/4

150, C7452B.

Mr. Norris has never designed a landfill.

Tm.

3/4

138, C7446B.

He has never

operated a landfill.

Tm.

3/4 138, C7446B.

Mr.

Norris has never performed a

hydrogeological study for the development ofa landfill.

Tm.

3/4

13 8-39, C7446B-47.

has never performed a GIA, although Mr. Norris considers “virtually everything I do

as a

hydrogeologist a groundwater impact assessment” (Tr.

3/4

13 9-40, C7447-47B

—

using

the term “groundwater impact assessment” somewhat more loosely than the Agency.

Ill. Admin. Code Section 811.317 (regulations governing procedures for performing a

Groundwater Impact Assessment).

He has never conducted a site characterization for

proposed development ofa landfill.

Tm.

3/4

140, C7447B.

Mr. Norris has never

conducted field permeability for the purpose ofconducting a hydrogeological evaluation

ofa proposed solid waste

landfill.

Tm.

3/4

144, C7449B.

He has neverprepared a siting

application to develop a solid waste landfill.

Tm.

3/4 144, C7449B.

He has never

prepared an application to

the Agency for a permit to

develop a solid waste landfill.

Tr.

3/4

144-45, C7449B-50.

Mm. Norris also exhibits his bias by giving nearly identical testimony every time

he testifies.

He has testified in approximately 12 Illinois siting applications, always

except one time

—

Wayne County

—

representing opponents ofthe siting and nearly

always contending that the proposed groundwater monitoring was inadequate.

Interestingly, at Wayne County, the single instance he

did

not

represent an objector, Mr.

Norris found the groundwater monitoring program to be adequate because the landfill

was right on the banks of a stream, and any “leaks from that landfill would immediately

show up as seeps

in springs around the flanks ofthe property.”

Tr. 3/4

12 1-23, C7438-

38B.

Other than that siting, Mr. Norris has never seen an adequate groundwater

monitoring program.

It has been his common complaint against any siting application in

which he has been involved.

Thus, Mr. Norris found the groundwater monitoring

program to be inadequate at the following sites:

•

Fulton County (Tr. 3/4 119-20, C7437-37B)

•

Marion

County (Tm. 3/4

124, C7439B)

•

Kankakee County (Tr. 3/4

124, C7439B)

•

McHenry County

(Tm. 2/4

130-31, C7442B-43)

•

LaSalle County (Tr. 3/4

13 1-32, C7443-43B)

•

East Peoria (Tm. 3/4

132-33, C7443B-44)

•

Will County (Tr. 3/4

133-34, C7444-44B)

•

Coles County

(Tm. 3/4 134, C7444B)

•

Ogle County (RWD’s 2000 Application)

(Tm. 3/4

134, C7444B)

Also, in each ofthe six cases in which Mr. Norris has testified for the CCOC’s

counsel, Mr. Mueller, in opposition to a siting application, he has found the groundwater

monitoring program to be inadequate.

Tr.

3/4

13 1-32, C7443-43B.

Notably, in each of

those cases

Mr. Norris

also testified that the siting criteria were not met, something he did

not do in this case,

never

offering any opinion as to whether or not this Application

meets

criteriomi (ii).

Tr.

3/4

131, C7443.

Thus, the opinions ofMr. Zinnen, Mr. Stanford

and Mr. Gelderloos stand uncontradicted.

Ultimately, Mr. Norris is equivocal about nearly everything, expressing

“concerns”

rather than a definitive opinion as to whether or not the Expansion will

actually impact the public health, safety or welfare.

A perfect example is

how he treats

the potential impact on the Creston municipal wells, which are screened in the St. Peter

sandstone about a mile east ofthe Subject Site.

Despite uncontradicted evidence that

groundwater in that aquifer is flowing from east to west and that the Creston wells are

uphill from the Subject Site (Tm. 3/3

103-04, C7279A-80 & App. Ex.

69) and his own

recognition that under such circumstances no

landfill leak could ever reach the Creston

wells because they would be “upgradient” (Tm.

3/4

156-57, C7455B-56), Mr. Norris

nevertheless was willing to calculate a travel time of 169 years for a contaminant to leave

the bottom ofthe landfill and reach those wells.

Tr.

3/4

182-83, C7468B-69.

He did that

based on some data he thought he had looked at the time Ofthe 2000 Application in

connection with this same landfill even though he knew there was a problem with that

data (Tr. 3/4

179-81, C7467-68) and even though he did not know one way orthe other

whether those wells were actually up gradient or down gradient.

Tr.

3/4

159, C7457

(“I

do not have the data to say that the pumping levels in the Creston wells are below the site

heads on-site).

Similarly, Mr. Norris has never actually run the Migrate V9 program to

see whether or not the Petitioner’s

GIA model would fail.

Tr.

3/4 214, C7484B.

Despite

the cavalier and ambiguous claim he makes in CCOC Bx.

11, Norris D, that the

“calculation failed,” Mr. Norris admitted under questioning by the City Staffs counsel

that he has no basis for knowing one way or the other whether the GIA model would fail.

Tr. 3/4

214, C7484B (“I don’t believe I testified that it would fail”).

He apparently just

wanted to leave that impression but be free to back away from it when pressed.

Mr.

Norris is the classic moving-target witness, never being definitive, forever expressing.

“concerns” and always, as he did in this case, criticizing the groundwater monitoring

program.

(c)

Operation

With respect to the plan ofoperations, the Petitioner called two witnesses, one

being Mr. Zinnen, who testified to the operating plan he has prepared for the Expansion,

and the other being Mr. Gelderloos, who testified to day-to-day operations.

That

testimony was relevant to both Criterion

(ii) as well as Criterion (v).

Significantly, the

Council concluded that the Petitioner had met Criterion (v), and it is thus highly unlikely

their negative decision on Criterion

(ii) had anything to do with operations.

Mr. Zinnen

The landfill operating plan is set forth in writing and in substantial detail in the

application (A1045-97) and deals with litter control, odor control, dust control, mud

tracking, vector control, noise control, CQA plan, hours ofoperation, waste placement

procedures, daily cover, load checking procedures, landfill gas monitoring procedures

and

groundwater monitoring procedures.

App. Bx.

113

Tr. 2/25

178-79, C7045-45B.

Closure and post-closure plans are also proposed for the Expansion.

App.

Ex.

114.

A1065-73 &

Tr. 2/25

180-82, C7046-47.

Based on Mr. Zmnnen’s involvement in the

design,

the plans he has prepared for the Expansion and the investigations he has

conducted,

his opinion is that the facility is so designed, located and proposed to be

operated that its

siting will protect the public health, safety and welfare.

Tr.

2/25

183,

C7047B.

That testimony was not

impeached or rebutted.

Mr. Gelderloos

Mr. Gelderloos also testified to day-to-day operations, both with respect to

how

the Expansion

is proposed to be operated so that the public health, safety and welfare will

be protected under Criterion (ii) and so as to minimize the danger to the surrounding area

from fires, spills and other operational accidents under Criterion

Tm.

2/26

32-33,

C7141B-42.

There was no rebuttal testimony or impeachment, and the Council found

compliance with Criterion (v), indicating their apparent satisfaction with the operations

element ofCriterion (ii).

Significantly, both the Hearing Officer and the City Staff also concluded that the

Petitionerhad demonstrated compliance with Criterion (ii).

Hearing Officer Report

30; City Staff Report 50.

The only issue on which there was real dispute in the testimony

had to do with the hydrogeology aspect ofthe location element, and, as the Hearing

Officer stated:

The real issue involves the testimony oftwo hydrogeologists and the

hydrogeologic suitability ofthe site.

Steven Stanford testified forthe

applicant.

Charles Norris testified on behalf ofCCOC.

Hearing

Officer Report 21-22

The Hearing Officer went on to state that because Norris appeared “to be advocating

from the witness stand” and because ofhis “frequently testifying for Mr. Mueller the

CCOC attorney

in opposition to Pollution Control Facilities,

frequently offering

opinions based on the same or similar grounds” “Mr. Norris’ credibility is suspect.”

Hearing Officer Report 22.

The Hearing Officer agreed that the City Staff had “prepared an excellent

list

(with which I agree) and encapsulating its weighing ofthe Stanford/Norris

testimony”

(Hearing Officer Report 22-24) as follows:

Both

Mr.

Stanford

and Mr.

Norris

agree that

the

site

the most

throughly investigated site either has encountered for the purposes

ofa landfill siting application.

Mr. Stanford conducted

a Groundwater Impact Assessment and

contained within Applicant’s Exhibit #1.

Groundwater

Impact

Assessment

not

requirement

of the

Rochelle

Siting

Ordinance

for

application

local

siting

approval.

Groundwater

Impact

Assessment

generally

considered

the

most

rigorous

performance

standard

regards

groundwater

protection for facilities ofthis nature.

The

City

determined

the

Groundwater

Impact

Assessment

contained

within

Applicant’s

Exhibit

was

conducted

manner

which

consistent

methodology with

that

which

has

historically

been

acceptable

the

Illinois

Environmental

Protection Agency for such an assessment.

Mr.

Stanford

testified that

the

results of the Groundwater Impact

Assessment

indicate

that

groundwater

will

protected’ well

excess ofthe minimum IEPA standards.

Mr.

Stanford

testified

that

has

previously

conducted

Groundwater

Impact Assessments for submittal and review by

the

IBPA for developments such as the one proposed in this case.

Mr. Norris testified he has never conducted

a Groundwater Impact

Assessments

for

submittal

and

review

the

JEPA

for

developments such as the

one

propose in

this

case.

Further,

Mr.

Norris

testified

has

never

utilized

the

software

which

was

utilized in the development this assessment.

Results

tritium

and

carbon

dating

analysis

groundwater

obtained

from

the Creston

municipal

water well,

summarized

Mr.

Keith

Hackley,

Ph.D.

of the

Illinois

State

Geologic

Survey,

tend to

support

the claims

of the applicant as

the rate of local

groundwater recharge.

10.

The

exhumation

and

relocation of disposal

Unit

would

afford

area groundwater the same

degree of protection

as demonstrated

within the Groundwater Impact Assessment.

The

City

Staff,

represented

the same

lawyers

now representing

the

Council,

recommended that the

City

find

that there had been compliance with

Criterion

(ii)

and

recommended the

imposition of some

special

conditions.

The Council’s determination,

arrived at apparently without any consultation with ‘the City Staff or conferring with one

another,

against the manifest weight ofthe evidence and

evinces a complete disregard

of the

evidence and

a capitulation

political

pressure

from the

CCOC

special

interest

group.

The Council’s decision as to

Criterion

(ii)

against the manifest

weight of the

evidence and

should be reversed.

CRITERION (iii).

COMPATIBILITY AND PROPERTY

VALUE

The Petitionerpresented two witnesses as to Criterion

(ui),1’

Mr. J. Christopher

Lannert, a landscape architect and urban planner who owns The Lannert Group, who

testified to

compatibility with the surrounding area (Tr. 2/24 64, C6713), and PeterJ.

Poletti (Tr. 2/24

120, C6769), a real estate

appraiser who owns

Poletti Associates, Inc., a

real estate appraisal and consulting firm, who testified to the effect on property values.

Mr. Lannert and Mr. Poletti were the only witnesses to testify regarding Criterion (iii),

and their testimony was unrebutted.

(iii) requires

that the

Applicant demonstrate that

“thefacility is located so as to

minimize

incompatibility with the character ofthe surrounding area and-to

mnJi~iinize

-tke-cffeet-o::

-the-value of

surrounding property.”

415

ILCS

5/39.2(a)(iii).

Criterion (iii) requires only that the applicant establish the facility be located to

minimize, not eliminate, the

effect on surrounding property values. File v. D&L Landfill,

Inc., 219 Iii. App.3d 897, 907-08, 579 N.B.2d 1228,

1236,

162 Ill.Dec. 414, 422 (5th

Dist.

1991). The law requires only that the location minimize incompatibility and effect

on property values, not guarantee that no fluctuation will result. Clutts v. Beasley,

185 Ill.

App.3d 543, 547,

541 N.B.2d 844, 846,

133 Ill.Dec. 633, 635 (5th Dist.

1989).

Criterion

(iii) does not require proof that the applicant can assure an odor-free facility or roads

utterly devoid ofstray papers.

B & B Hauling,

116 Ill.App.3d at 614,

451

N.E.2d at 576,

Ill.Dec. at 608.

Few applicants could gain approval under a standard so strict..

This criterion only requires an applicant to demonstrate more than minimal efforts to

reduce the facility’s incompatibility. File,

219 Ill.App. 3d at 907-08, 579 N.B.2d at 1236,

162 Ill.Dec. at 422. An applicant must demonstrate that it has done or will

do what is

reasonably feasible to minimize incompatibility.

T.O.TA.L.

v. City ofSalem,

PCB 96-

79,

*21

(1996); Waste Management, Inc. v. Pollution Control Board,

123 Ill.App.3d

1075,

1090, 463

N.E.2d 969, 980, 79 Ill.Dec. 415,

426 (2d Dist.

1984).

Criterion (iii)

calls for the facility to

be located so as to “minimize” incompatibility but does not allow

rejection simply because there might be some reduction in value. A.R.F.

Landfill, Inc.

Lake County, PCB 87-51, *20 (1987).

(a)

Compatibility

Mr. Lannert testified as to the compatibility ofthe Expansion with the character of

the surrounding area, which is the first part ofCriterion (iii).

As set forth in his resume

(App. Bx. 20), Mr. Lannert is a registered landscape architect in the State ofIllinois

and

has practiced in the field of land planning, landscape architecture and community

consulting since graduating from Michigan State University with a Bachelor ofScience

in landscape

architecture/urban planning in

1970.

Tr.

2/24 65-66, C67 14-15.

The three~

primary areas ofpractice ofThe Lannert Group are landscape architecture, community

consulting and

land planning.

Tr.

2/24 67-68, C67l6-l7.

Since first being retained by

Waste Management in connection with the Settler’s Hill landfill in

1978, Mr. Lannert has

testified in over 25 solid waste landfill

siting applications and

in connection with the

siting ofa dozen transfer stations.

Tr. 2/2468, C67 17.

All ofthose involved minimizing

incompatibility with the character ofthe surrounding area under Criterion (iii).

Tr. 2/24

68-69, C6717-l8.

In addition to

being a registered landscape architect in the State ofIllinois, Mr.

Lannert is also a member ofthe American Planning Association, the Urban Land Institute

and the American Society ofLandscape Architects.

He has served as a board member

and is President ofthe Landscape Architecture Foundation, and

he is presently one of

four board members on the Illinois Department of Professional Regulation Board

regulating conduct oflandscape

architects.

Tr.

2/24 68-69, C6717-18.

Mr. Laimert’s

written report is contained in the Application. A5058-102.

Mr.

Lannert’s methodology involved an

evaluation ofthe Expansion with specific

attention to

land use and zoning within approximately one mile ofthe Subject

Site.

consulted

aerial photographs, the Creston Zoning Ordinance, the

Ogle County

Amendatory Zoning Ordinance and Comprehensive Plan, the Ogle County Atlas

and Plat

Book,

the Ogle County Solid Waste Management Plan, the

Ogle County Pollution

Control Facility Siting Ordinance, the City ofRochelle Municipal Code and the City of

Rochelle Comprehensive Plan including the Zoning Ordinance and related documents.

A5064 and Tr.

2/24 70-71, C6719-20.

The Lannert Group also conducted a field survey

with numerous follow up

field investigations ofthe Subject Site and its environs

throughout May and June of 1997 with additional site visits during the January, February

and August of 1999 as well as June and July of2001

update portions ofthe report.

A5065.

Utilizing an aerial photograph, which had been prepared to

show existing land use

and zoning (App. Ex. 3), Mr. Lannert testified that the Subject Site, approximately 319

acres in size, has an underlying zoning of1-2 General Industry.

Most ofthe property

surrounding the site is used for farm

fields and is zoned agricultural.

Tm. 2/24 72, C672 1.

The Subject Site is situated south and

adjacent to

the right-of-way ofthe Union Pacific

Railroad, east ofMulford Road and north of Creston Road.

Immediately to the west of

the Subject Site is a large finger ofindustrial property within the corporate limits of

Rochelle, and across the railroad tracks to the north is a large tract ofA-i Agricultural

District property which is

subject to

an annexation agreement with the Village.

Tr. 2/24

‘72, C6721.

Approximately 80 percent ofthe land within a one mile radius ofthe Subject

Site is either used or zoned for agricultural purposes.

Tm. 2/24 73, C6722.

Another

14 or

15 percent

is used or zoned for industrial purposes, and for that reason Mr. Lannert

concludes that the character ofthe surrounding area is compatible with the proposed

Expansion.

Mr. Lannert’s report contains twelve OffSite Area Views in order to demonstrate

the character ofthe surrounding area from various

vantage points around the Subject Site.

Tr. 2/24 74, C6723 & A5089-90.

In order to confirm his opinionthat the Expansion

would be compatible with the surrounding area, Mr. Lannert also prepared a series of

Computer Landform Models which

are essentially before and after photographs

showing,

with the use ofcomputer modeling, what the Subject Site will look like once the landfill

is finished.

Although all ofthose views appeared in the report, several ofthem were

specifically displayed during the hearing.

App. Bxs.

8-15.

As those Computer Landform Models confirmed, although the finished Expansion

will range in height from 70 to

130 feet over grade, when viewed from halfa mile or

mile away, it adequately blends into the surrounding, undulating land and fence rows.

Tm.

2/24

78, C6727.

According to Mr. Laimert, the Expansion “nestles into the horizon very

nicely.”

Tr.

2/24 79, C6728.

The Lannert Group also

prepared a landscaping plan for this facility, which calls

for the top

to be planted with wild flower drifts,

a relocated entry, berms along the

easterly and southerly boundaries and plantings including overstory trees, evergreen

trees, ornamental trees as well as shrubbery material.

Tr. 2/24

81-82, C6730-3 1.

Mr.

Lannert noted that the 30 to

40 foot landscape berm along Creston Road is quite unique

in that it is entirely separate from the landfill itself and is

designed to screen the Village

ofCreston from the landfill.

Tm. 2/24 82-83, C6731-32.

The construction ofthat berm

goes well beyond the typical efforts

to screen a landfill.

Tr. 2/24 83, C6732.

Mr. Lannert’s opinion is that the proposed Expansion is compatible with the

character ofthe surrounding area, and the bases for his opinion are that 80 percent ofthe

surrounding land use is either agricultural or open space, the nearest residential unit is

over 725

feet from the waste boundary and

over 520 feet from the Subject Site boundary,

that the existing railroad to the north and the surrounding roadways to

the east, south and

west provide adequate setback and buffer for the Expansion and that the Subject Site is

located in an 1-2 General Industry zoning district which specifically provides for landfills

as a special use and that the facility, as shown on the landscape plan, is properly screened

and buffered from the surrounding area by berms and plantings.

There was no rebuttal

testimony.

(b)

Property Value

Mr. Poletti testified regarding the second

leg ofCriterion (iii), which is whether

the Expansion is located so as to minimize any

effect on the value ofsurrounding

property.

As set forth in his resume (App. Bx.

21), Mr. Poletti is an appraiser and a

member ofthe Appraisal Institute, awarded the MAI designation by that organization.

He is a Certified General Appraiser in the

States ofIllinois, Missouri, Iowa, Tennessee,

Kentucky and Indiana, and since 1977 he has been the Township Assessor ofCollinsville

Township in Madison County, Illinois.

Mr. Poletti holds a Bachelor ofScience from the University ofIllinois,

a Masters

Degree in Geography from Southern Illinois University in Edwardsville and a Ph. D. in

American Studies from St. Louis University.

Mr. Poletti has appraised various types of

property, primarily industrial and commercial, and has been involved in Criterion (iii)

evaluations as well as landfill evaluations, quarry evaluations and the valuations of

numerous other types of commercial and industrial developments as well- as-single family

residences. Mr. Poletti has taught for the Appraisal Institute as well as for the Illinois

Assessment Institute.

Tr.

2/24 120-21, C6769-70.

Mr. Poletti

has worked on approximately 25

different landfills,

including siting

proceedings, usually representing applicants but sometimes representing

siting

authorities.

About

10 percent ofhis business or professional time is devoted to

solid

waste facility siting proceedings.

Mr. Poletti’s methodology involves looking at the surrounding area and the site,

having personal contact or meetings with local people as well as representatives ofthe

Petitioner, examining transfers ofproperty within the general area and reviewing the

literature as well as previous studies he has done.

Tm. 2/24

124-25, C6773-74.

His local

contacts in

this case involved realtors, the Ogle County Supervisor ofAssessments, the

Dement Township Assessor and the Rochelle Assessor.

Tr.

2/24 124-25, C6673-74.

Mr. Poletti compared the sale prices ofproperties within a target area in relatively

close proximity to the landfill with the sale prices in

a control area “that is considered to

be a zone where property values would not be affected.”

Tr.

2/24

128, C6777.

making

the comparison between the control area, including Rochelle, which Mr. Poletti

felt would

not be affected by the landfill, and the target area, including Creston, which

Mr. Poletti felt was close enough to the Subject Site to potentially be affected, Mr. Poletti

looked at two

factors, appreciation rates and prices per square foot.

Tm.

2/24

129-31,

C6778-80.

He did that because he wanted to know both how fast prices were changing

within the target areaversus the control area as well as the price per square foot to see if

there was already an impact betweenthe target area and the control area.

Tm. 2/24

130-

31,

C6779-80.

With respect to appreciation rates, Mr. Poletti found 27 resales within the control

area and four resales within the target area.

App. Ex. 29.

The target area appreciation

rate was 7.2 percent per year, whereas the control area was only 4.2 percent per year.

App. Ex. 30:

Although Mr. Poletti expected that the rates would become more

comparable over time,

that study

generally showed that there is “really no difference in

appreciation rates for the control area versus the target area.” Tr. 2/24

132, C678 1.

In order to compare prices per square foot, Mr. Poletti attempted to compare

similar properties.

Tr.

2/24 133-34, C6782-83.

Therefore, he removed sales involving

related parties or other non-market situations, only considered houses constructed since

the mid-i 95Os, excluded sales on tracts larger than five acres, excluded homes with large

outbuildings

and excluded bi-level or tn-level homes.

All of that was done to ensure that

the square footage comparison was comparing comparable properties.

Within the target

area Mr. Poletti identified

10 sales,

whereas the control area had 80 sales.

The average

price per square foot in the target area was $78.52, while the control area price per square

foot was $78.97.

Tr. 2/24

136, C6785 & App. Ex.

33.

Mr. Poletti’s

conclusion, after.

performing a statistical analysis, was that “there was no difference in sales price between

properties within the target area.

and

those within the control area.”

Tr.

2/24

137,

C6786.

Even after Mr. Poletti had modified his analysis to eliminate

two outlying sales,

he still concluded there was no statistically significant difference in sales price per square

foot between properties in the target area and properties in the control area.

App. Bx.

34.

Both ofthose studies dealt with residential properties because he was unable to

find any sales offarm land or larger residential tracts in the target area.

However, from

similar studies he had performed in

Coles County, Livingston County, Roxanna, and

Clinton, Illinois

and West St. Louis County, Missouri, Mr. Poletti concluded that neither

farmland nor largerresidential tracts have any apparent differences in value as a result of

being located near a landfill versus being located some distance away.

Tn. 2/24

138-39,

C6787-88

& AS 141-72.

Mr. Poletti also noted certain anecdotal evidence ofno such difference, mostly

involving properties in close proximity to

the Expansion that have

sold in recent years.

For example, a house and two lots

on Creston Road facing the landfill sold for $143,000,

and

the house subsequently sold for $111.25 per square foot in July 1999.

Another house

nearthe landfill sold

in March 2000 for $139,700 or $72.01 per square foot, which was

ofits asking price. Tr. 2/24

141, C679O.

The Rich’s house very near the landfill

sold in August of2001

for $256,000 or $102.40 per square foot.

Mr. Poletti’s opinion is that the proposed Expansion is so located to minimize any

impacts on property values in the surrounding areas.

Both the City Staff and the Hearing Officer recommended that the Council find

that the Petitioner had met Criterion (iii) establishing both a minimization of

incompatibility with the surrounding area and

a minimization ofthe effect on the value of

surrounding properties.

City Staff Report 62; Hearing Officer Report 36 & 38.

The

Council’s decision to the contrary evinces a disregard ofthe evidence and undoubtedly

results from the fact that the Council members never conferred with the City Staff orwith

each other and instead relied upon

exparte

political pressure by the CCOC to make their

decision.

CRITERION (vi).

TRAFFIC PATTERNS

The sixth Criterion’2 is whether traffic patterns to or from the Expansion are so

designed as to

minimize impact on existing traffic flows.

The issue

is not whether there

Criterion (vi) requires that

the Applicant demonstrate that

“the traffic patterns to orfromn the facility are

so designedas

minimize

the impact

existing

traffic

flows.”

415

ILCS 5/39.2(a)(vi).

will be any negative impact but whether any impact on traffic flow has been minimized.

Fairview Area Task Force v. Illinois Pollution Control Board,

198

Ill.App.3d 541,

554,

555

N.B.2d

1178,

1187,144 Ill.Dec.

659,

668 (3rd Dist 1990).

RWD called one witness,

traffic and transportation engineer Michael A. Werthmann, to testify regarding Criterion

(vi),

and he was the only witness

to testify regarding traffic.

Mr. Werthmaim’s report

included in the Application (A5498-636) was supplemented by his written responses to

traffic questions raised by hearing participant, Susan Kivikko.

App. Ex.

124.

There was

rebuttal testimony.

Mr. Werthmann was qualified as a traffic engineer and

expert.

He has practiced

in that profession for the last 13 years since graduating in 1989 with a Bachelor of

Science

in Civil

Engineering from Michigan State University.

He is presently a partner

and principal in the firm ofKenig,

Lindgren, O’Hama, Aboona, Inc., and he is a registered

professional engineer in the State of Illinois.

Tm. 2/24

182-83, C683 1-32.

Mr.

Werthmann has worked on Criterion (vi) traffic studies for approximately

landfills and 10 to

12 waste transfer stations.

Tm.

2/24 183, C6832.

‘Although he was first

retained by RWD to

prepare the traffic study for this Application, he was initially

involved with the Rochelle Landfill because he was hired by the City in connection with

RWD’s 2000 application to review the traffic report on behalf ofthe City.

Tr. 2/24 92-

94, C674i-43.

In order to prepare the traffic

study for this Application, Mr. Werthmann

collected and reviewed a great deal of information and data, contacting a number of

people.

He reviewed the prior application, the new Application, the Rochelle Zoning

Ordinance and other information regarding the existing landfill.

Tm. 2/24

184, C6833.

He also

spoke to officials with the Illinois Department ofTransportation, the Ogle

County Highway Department, the Dement Township Road District, various

representatives and officials ofthe City, the City Manager, the City Director ofPublic

Works as well as interested citizens and the Citizens Advisory Committee appointed by

the Council

to review the landfill.

Tm.

2/24

184-85, C6833-34.

Mr. Werthmann initially conducted a field investigation, driving the roadways and

understanding the operating characteristics ofthe roadway system, visiting the Subject

Site approximately 10

times.

Tm. 2/24

185, C6834.

He also investigated historical

traffic counts, accident data, proposed roadway improvements and proposed

developments in the area, and he

spoke to

officials to

see if theme were any particular

concerns regarding the landfill or how the existing roadway system was operating.

Tr.

2/24

186, C6835.

Finally, Mr. Werthmann collected data, including weekday morning

and

evening peak period traffic counts at a number ofintersections,

24 hour classification

counts on Illinois 38, a gap study at the intersection ofIllinois 38 and Mulford Road and

a survey oftrain activity along the Union Pacific Railroad to the north ofthe Subject Site.

Tr. 2/24

186, C6835.

Mr. Werthmann testified that the landfill is located south ofthe Union Pacific

Railroad and east ofMulford Road and north ofCreston Road.

The major roadways that

will serve as access to the Expansion include 1-88, 1-39, Illinois 38, Mulford Road and

Creston Road.

1-39 is

north-south limited access freeway with a full access interchange

with 1-88 and Illinois 38.

1-39 provides two lanes in each direction and is under the

jurisdiction ofIDOT and has a weight limit of 80,000 pounds.

Tr. 2/24

187, C6836.

Illinois 38

is a major east-west arterial road which, west of 1-39 is a four-lane

divided road with a posted speed limited of45 mph that

is reduced as it approaches Hwy

251.

It has separate left hand turn lanes at most intersections.

It is also under the

jurisdiction ofIDOT and also has a weight limit of80,000 pounds.

Tr. 2/24

187, C6836.

East of1-39, Illinois 38 is

a two-lane road with a posted speed limit of55

mph

that

is reduced to 45 mph through the Village ofCmeston.

It is

also under thejurisdiction

of IDOT and also has a weight limit of 80,000 pounds.

Tr. 2/24

187-88, C6836-37.

Mulford Road is a two-lane, north-south local road with an at-grade crossing with

the Union Pacific Railroad and an intersection with Illinois 38

as well as Creston Road.

Mulford Road is under stop sign control and has a weight limit of73,280 pounds and is

under the jurisdiction ofDement Township with the exception that the portion south of

the railroad tracks is under thejurisdiction ofthe City.

Tr.

2/24 188,

C6837.

Creston

Road is a east-west local road under thejurisdiction ofthe City ofRochelle and has a.

posted weight limit of 73,280 pounds.

Tm. 2/24 188, C6837.

IDOT has plans to improve the Mulfomdl38 intersection, including widening the

intersection by separate left turn

and right turn lanes on both approaches of Illinois

servicing Mulford Road.

In addition all four radii at the intersection wiU be widened in

order to

accommodate truck traffic.

Tm.

2/24 188-89, C6837-38.

IDOT’s intersection

design (App.

Ex. 38) represents, according to Mr. Werthmann, a significant improvement

the operation ofthe intersection both from an

efficiency and safety standpoint.

Tm.

2/24

189, C6838.

IDOT plans to

complete that project in 2003.

part ofthe intersection design project, IDOT performed a sight distance

analysis along Illinois

and Mulford Road and

concluded that there is

adequate sight

distance along Illinois

that vehicles can enter and exit out ofMulford Road safely

and efficiently from

and onto Illinois

38.

Tn. 2/24 189-90, C6838-39

& App. Bx.

39.

Mr. Werthmann also testified that in connection with the Expansion the Petitioner

has proposed to improve Mulford Road from 38

to the new site access drive, widening

the road and upgrading the road to

accommodate 80,000 pound truck traffic.

In addition,

at the MulfordJ38

intersection RWD will widen the south approach and provide a

northbound to

eastbound right turn lane.

Tn. 2/24

190, C6839.

In order to assess the traffic impact, Mr. Werthmann conducted a traffic study,

performing peak hour traffic counts on the roadway system around the Subject Site.

The

theory is that if the Expansion can accommodate the peak hour oftraffic, it can

accommodate it at any other time ofthe day.

Tm.

2/24 191,

C6840.

The traffic counts

were conducted for morning and evening peak hours at four intersections within the

vicinity ofthe Subject Site, including Illinois 38 and Mulford Road, Illinois 38 and the I-

39 northbound ramp, Illinois 38 and the 1-39 southbound ramp and Mulford Road and the

existing access drive.

Tm.

2/24

192, C6841.

Although peak counts are normally only

conducted from 6 a.m. to

9 a.m.

and from 3 p.m. to 6 p.m., those counts were extended

because ofconcerns expressed by various representatives ofthe community, and the

counts for this Expansion were actually conducted

from 6 a.m. to

a.m. and from 2 p.m.

to 6p.m.

Tr.

2/24

192, C684i.

The counts at Mulford and 38

were conducted on four occasions even though Mr.

Werthmann normally only conducts such counts on one occasion.

At the 1-39 ramps the

counts were conducted on three occasions.

Tm. 2/24

192, C6841.

Also, because of

concerns about student traffic to and from Northern Illinois University and Kishwaukee

College,

all but one ofthese counts were conducted when both schools were in session

and

students were commuting.

Tr. 2/24

192-93, C6841-42.

In order to perform the most

conservative analysis, each ofthe traffic counts conducted for each particular movement

was based on the highest traffic count ofall counts.

Because issues were raised regarding

Kishwaukee College, counts were also conducted at Malta Road and Illinois 38 because

Malta Road serves as a main access to Kishwaukee College.

Mr. Werthmann determined

that approximately three quarters ofthe traffic

generated by the college is generated from

the east towards DeKaib, and only about 25

30 percent is

generated towards Rochelle.

Tm. 2/24

193-94, C6842-43.

A 24-hour classification count on Illinois 38 just west ofMulford Road was

conducted showing that Illinois 38 carries 7,400 vehicles a day.

Tn.

2/24

194, C6843.

Mr. Wertbmann testified that the Union Pacific Railroad indicates that the railroad track

to the north ofthe Subject Site has approximately 53 to

trains a dayor about 2

trains pen hour.

Tn. 2/24

194, C6843.

A survey was conducted of train traffic while the

landfill was open from 7 a.m. to

3:30 p.m. for three different weeks.

That also

determined that about 2 or 3 trains per hourpass the Subject Site on average, and

Mulford Road is only closed for approximately 3 to 4 minutes when a train passes.

Tr.

2/24

194-95, C6843-44.

Accident data for the area was collected from the Illinois

Department ofTransportation as well as the Ogle

County Sheriffs Department, from

1993 to 2002, and it indicated that none ofthe roadways or intersections are experiencing

any high accident patterns.

Tm.

2/24

195-96, C6844-45.

Mr. Werthmann testified that the data available for this traffic study was more

than adequate and more than typical for what is normally done for a siting application.

Tm. 2/24

196, C6845.

Mr. Werthmann’s opinion is that the existing roadway system is

currently operating well and efficiently, and that volumes on the roadway system are

relatively low, particularly considering the capacity ofthe existing roadway system.

Ifthe Expansion is permitted, it is anticipated that traffic will increase from the

two basic markets the Expansion is expected to serve.

The first is a local market

typically transported to the landfill by single unit packer trucks.

The second market

would be the transfer station market that will be brought to the landfill in transfer trailers.

Tr. 2/24

197-98, C6846-47.

As far as local waste is concerned, Mr. Werthmann’s study

projected that approximately 80 percent ofit will travel to and from the site along Illinois

38, and about 20 percent will travel from the north on Mulford Road from the south on

Mulford Road and on Creston Road.

Tr. 2/24

198, C6847.

Transfer trailers will travel to

the facility by the regional roadway systems, including 1-88 and

1-39.

A majority ofthat

traffic will exit at the Illinois 38 interchange, travel

east to Mulford Road and then south

the landfill.

Likewise, on the return trip it will come north on Mulford Road and then

west on Illinois 38 to 1-39.

Tm.

2/24 198, C6847.

Although the Expansion is projected to process an average of 2,500 tpd ofwaste,

to provide a conservative analysis, Mr. Werthmann looked at a “max day” of3,500 tpd,

which is approximately 40 percent more than the anticipated average.

Tr. 2/24 199,

C6848.

At 2,500

tpd the landfill would generate approximately

171

inbound truck trips

and

171

outbound truck trips.

Using a max day of3,500

tpd, there would be

approximately 221

inbound trips and 221

outbound trips.

During the peak hour the

landfill would generate 19

25 inbound trips

and 19

25 outbound trips in the morning

peak hour and about

15 inbound and

15 outbound trips in the evening peak

hour, depending whether it is based on

a figure of2,500 or 3,500 tpd.

Tr. 2/24

199-200,

C6848-49.

Ifthe landfill were designed as a subdivision ofsingle family residences on one

acre lots, those approximately 300 homes would generate approximately 3,000 trips a day

compared

to the 350

440 trips the Expansion might generate.

In essence, during the

peak hour such a subdivision would generate approximately 300-trips in one hour, which

is similar to what is being projected for the Expansion forthe entire day.

Tr. 2/24 200-

01, C6849-50.

The study, taking into account traffic by employees and maintenance,

also

considered ambient future growth in the area.

Thus, Mr. Werthmann looked at traffic

patterns in 2005, which is the projected opening ofthe landfill at full capacity, then

years after the traffic study was conducted, which is

2012, and then 20 years out, which is

2022.

Ambient growth was conservatively estimated at

3 percent a year even though

IDOT only used a 1.75 percent increase when they conducted their recent

intersection

design study.

Tn. 2/24 202, C685 1.

For each such year or “assigmnent,” Mr. Werthmann analyzed the traffic to

determine whether the existing roadway system had sufficient capacity to safely and

efficiently accommodate the traffic generated by the landfill and the future growth ofthe

area.

That investigation revealed that

all of these intersections and roadway sections have

sufficient capacity with one exception.

Tr. 2/24 203, C6852.

Ifthe 2022

traffic volumes

are ever realized, the intersection ofthe southbound ramps of 1-39 and Illinois 38

projected to operate at an unacceptable level of service during the evening peak hours.

other words, traffic on those ramps will have to

wait longer than what is considered

acceptable, and

at that point a traffic signal might be required at the ramps.

Tr. 2/24 204,

C6853.

Mr. Werthmann stressed that the need for such a traffic signal would not be

generated by the landfill but ratherwould be generated by the other growth in the area

and the existing traffic because the 2022 traffic volumes at that intersection indicate that

the landfill will only account for one percent ofthat traffic.

Mr. Werthmann also

conducted a gap study at the intersection of 38 and Mulfond

Road, and he also confirmed that the IDOT sight distance analysis was correct.

That

means that there is more than sufficient sight distance at Mulford Road looking both east

and west along Illinois 38 for traffic turning into and out ofMulford Road.

Tn. 2/24 205-

06, C6854-55.

The sight distance analysis was also

done conservatively based- on-a-62

mph

speed even though the posted speed is

mph.

The

gap study was done to determine the number and length ofgaps within the

traffic stream to

ensure that there are adequate gaps for traffic that would be entering the

traffic stream from a side road or cross street such as Mulford.

Tr.

2/24 206-07, C6855-

56.

The gap study was actually conducted twice, once in July of2001

and again in

September of2002 and was based on the Institute ofTransportation Engineers Traffic

Engineering Handbook.

Tm. 2/24 206-07,

C6855-56.

That gap study indicated that there

are more than sufficient gaps to accommodate the traffic that will be turning into and out

ofMulford Road from and to Illinois 38.

Mr. Werthmann also testified that the Petitioner made extensive efforts to obtain

approval from IDOT to

install a traffic light, at RWD’s expense, at the intersection of

Mulford and Illinois

38.

App. Bx. 40.

Mr. Werthmann stated that it was his opinion that

a traffic signal is not required at that intersection, and DOT came to the same conclusion

and would not agree to the installation ofa light at that intersection even though the

Petitioner was willing to

pay for it.

Tm. 2/24

207-08,

C6856-57.

Mr. Werthmann explained that the improvements to the site access are another

major advantage ofthe present Application over the application filed by RWD in 2000.

Whereas the existing access drive is almost immediately south of the railroad tracks, the

new access drive has been relocated further south and will be approximately 1,650

feet

from the railroad tracks.

Tn. 2/24 209, C6858.

In addition,

the scale house ofthe facility,

which is presently located very close to the entrance, will be relocated over 2,000 feet

from Mulford Road, which provides additional stacking for vehicles waiting to access the

scales.

Tn.

2/24 209-210, C6858-59.

In addition, because the entire 2,000 feet of access

drive will be paved, that provides ample runoffdistance to eliminate mud and debris from

truck tires before they exit the landfill. Tn. 2/24 210, C6859.

Based on his

traffic investigation,

Mr. Werthmann’s opinion is that the traffic to

and from the facility have been designed to minimize the impact on existing traffic flows.

Tr. 2/24 211-12, C686O-61.

Again, both the City Staff and the Hearing Officer recommended that the Council

find that the Petitioner had proven compliance with Criterion (vi), both suggesting the

imposition ofcertain conditions

such as:

The facility should not accept more than an annual daily average of2,500

tons ofwaste pen day with a maximum of 3,500 tons on

any given

operating day (absent special written consent given by the City to exceed

these levels on

a limited basis to address emergency or exigent

circumstances).

Hearing Officer Report 45.