BEFORE
THE
ILLINOIS POLLUTION
CONTROL
CLERKS
OFFiCE
WASTE
MANAGEMENT
OF ILLINOIS, 11’JC.,
)
IPR
3
02003
Petitioner,
)
No. PCB
03-104
STATE
OF
ILLINOIS
Pollution
Control
Board
vs.
)
(Pollution Control Facility
)
Siting
Application)
COUNTY BOARD OF KANE
COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached
Service
List
PLEASE
TAKE NOTICE that on
April 30,2003, we filed with the Illinois Pollution
Control
Board, the attached Waste Management of Illinois, Inc.’s
MEMORANDUM
IN SUPPORT OF
THE SITING APPEAL OF WASTE MANAGEMENT OF
ILLINOIS, INC. TO
CONTEST
SITE
LOCATION DENIAL
in the
above entitled matter.
WASTE MANAGEMENT OF ILLINOIS, INC.
By:
//
One of Its Atto eys
Donald J. Moran
PEDERSEN
& HOUPT
161 North
Clark Street, Suite
3100
Chicago, Illinois 60601
(312) 641-6888
Attorney
Registration
No. 1953923
vi
April
30,
2003
This document was printed on recycledpaper.
PROOF
OF SERVICE
Victoria
L. Kennedy,
a non-attorney,
on oath states that
she served the foregoing
Waste
Management
of
Illinois,
Inc.!s
MEMORANDUM
IN SUPPORT
OF THE
SITING
APPEAL
OF
WASTE MANAGEMENT
OF ILLINOIS,
INC.
TO
CONTEST
SITE
LOCATION
DENIAL
by hand delivery to
the parties listed below
on
or before
5:00 p.m. on this 30th
day
of April, 2003:
Ms.
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
100
W. Randolph St., Suite
11-500
Chicago,
IL 60601
Derke
J.
Price
Ancel,
Glink,
Diamond,
Bush, DiCianni
&
Rolek,
P.C.
140 South
Dearborn
Street, Sixth Floor
Chicago,
IL
60603
Jennifer J. Sackett
Pohlenz
Querrey & Harrow,
Ltd.
175 W.
Jackson,
Suite 1600
Chicago,
IL
60604
Mr. Brad Halloran
Assistant Attorney
General
Environmental
Division
100 West Randolph,
11th Floor
Chicago,
Illinois
60601
Victoria
L.
vi
ApriJ 30, 2003
This document
was printed on recycledpaper.
BEFORE
THE ILLINOIS POLLUTION CONTR6M1P’
CLERK’S
OFFICE
/\PR
30
73
WASTE MANAGEMENT
OF ILLINOIS, INC.,
)
STATE
OF
ILLINOIS
)
Pollution
control
Board
Petitioner,
)
No.
PCB 03-104
)
)
(Pollution Control
Facility
vs.
)
Siting
Appeal)
)
COUNTY BOARD
OF KANE COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
MEMORANDUM IN SUPPORT
OF THE
SITING
APPEAL OF
WASTE
MANAGEMENT OF ILLINOIS, INC.
TO CONTEST SITE LOCATION DENIAL
PEDERSEN &
HOUPT
By: Donald J. Moran
Attorney for Waste Management
of Illinois, Inc.
161 North
Clark Street
Suite
3100
Chicago, Illinois 60601
312-641-6888
312-641-6895
(Fax)
Tins
document
was printed
on
recycled paper.
364687.1
TABLE
OF CONTENTS
I.
Introduction
.1
A.
Application
for
Woodland
Transfer
Facility
2
B.
Public
Hearings
3
II. Argument
4
A.
The
County
Board
Denial
Was
a Legislative,
Not an Adjudicative,
Decision
6
1.
The Walter
Memorandum
Misstated
the
Law
8
(a)
The
Walter
Memorandum
Applied
the
Wrong
Standard
for
Criterion
2
8
(b)
The
Walter Memorandum
Applied
the Wrong
Standard
for
Criterion
3
9
(c)
The
Walter Memorandum
Applied
the Wrong
Standard
for
Criterion
6
11
(d)
The
Walter Memorandum
Applied
the Wrong
Standard
for
Criterion
8
12
(e)
The
Walter
Memorandum
Misrepresented
the
Need to With
a
Comply Local
Ordinance
13
B.
The
Walter Memorandum
Inaccurately
Summarized
the
Evidence
13
I.
Criterion
6
— Traffic
Volume
14
2.
Criterion
6
— Traffic
Signal
Phasing
15
3.
Criterion
6—
Traffic Signal
Warrants
16
4.
Criteria
2 and
8 — Schools
17
5.
Criteria
2 and
3 — Woodland
Landfill
End
Use
Plan
19
C.
The
Walter Memorandum
Improperly
Considered
Information
Outside
the Record
21
1.
Criterion
6
- Inbound
Collector
Trucks
21
2.
Criterion
6
- Over-Burdened
Bridges
21
3.
Criterion
6 -
Rail Lines
22
4.
Criteria 2
and 3 - Comprehensive
Plan of
South Elgin
22
5.
Criteria
2 and
3 - Request
for Relief
23
D.
The County
Board’s
Failure
to
Find That
Criteria
2,
3, 6 and
8
Were Met
is
Against the
Manifest
Weight of
the Evidence
24
1.
Criterion
2
24
2.
Criterion
3
28
3.
Criterion
6
33
4.
Criterion
8
38
5.
Local Ordinance
40
III.
Conclusion
41
This
document
was
printed
on re cycled
paper.
364687.1
RE
CLIV
ED
CLERK’S
OFFICE
PR
302003
STATE
OF
ILLINOIS
Pollution
Control
Board
BEFORE THE ILLINOIS
POLLUTION
CONTROL
BOARD
WASTE MANAGEMENT
OF
ILLINOIS,
INC.,
)
)
Petitioner,
)
No.
PCB 03-104
)
)
(Pollution
Control Facility
vs.
)
Siting
Appeal)
)
COUNTY BOARD
OF KANE
COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
MEMORANDUM
IN SUPPORT OF THE
SITING
APPEAL
OF
WASTE
MANAGEMENT
OF ILLINOIS,
INC.
TO CONTEST
SITE LOCATION DENIAL
I.
INTRODUCTION
Waste
Management of
Illinois, Inc. (“WMII”)
appeals
the
denial of its Site Location
Application
(“Application”)
for
the Woodland Transfer
Facility
(“Facility”) by the County
Board
of
Kane
County (“County Board”)
pursuant to Section
40.1(a)
of
the Illinois Environmental
Protection
Act (“Act”). 415 ILCS
5/40.1
(a)(2002).
While
the County
Board
adopted
certain
findings
of
the Hearing
Officer that the statutory
criteria
were
met,
it
did
not
adopt his findings
that criterion 2, 3, 6
and
8
were
met.
Instead,
the
County
Board referred to a
memorandum
prepared
by
County Board member
Mr. Dan Walter (“Walter
Memorandum”)
that argued
criteria
2, 3,
6 and
8
were not met.
This document
was
printed
on recycled paper.
364687.1
1
The
County
Board’s
decision
denying
local
siting
approval
was not based
solely on the
evidence
presented
in
the siting process,
but
on
the Walter Memorandum,
a legally
and
factually
inaccurate advocacy
document
to
which
WMII
had no opportunity
to respond. The
County
Board’s reliance
on the Walter
Memorandum
made the process legislative,
not adjudicative.
Thus,
the
County Board’s
December
10,
2002
decision
as enacted
in Resolution
02-43 1
(“Resolution”)
was the result
of a fundamentally
unfair procedure.
In addition,
the
County
Board’s failure to
find that criteria 2,
3, 6
and
8
were
met is
against
the manifest
weight
of the
evidence.
A.
Application
for Woodland
Transfer Facility
On June
14,
2002,
WMII
submitted
its Application
with
Kane County,
Illinois
requesting
site
location approval for
the
Woodland
Transfer Facility (“Facility”).
(Application
at
Additional
Information —
Tab “A.”)
The
Application
was
prepared
and submitted
pursuant
to the
requirements
of
Section 39.2
of the Act.
WMII
proposed to site, permit,
construct and
operate a new
transfer facility
on the
southeastern portion
of
the
existing
Woodland
Landfill
property located
in unincorporated
Kane
County,
Illinois. The
Facility
is located
approximately
1,500 feet west/southwest
of the
Intersection
of
Illinois
Route 25
(“Rt.
25”) and Dunham
Road, and is approximately
9 acres in
size. (Application at
Executive
Summary,
p.
ES-I.)
The
Facility
will
be used
for the consolidation and
transfer
of
municipal solid waste,
landscape waste
and general construction
and
demolition
debris from
residential,
commercial
and
industrial
waste generators.
It
would
process
an average
of 2,000 tons per day
(tpd) of waste
materials,
with a maximum
processing
capability
of 2,640 tpd.
(Application
at Executive
Summary,
p.
ES-i.)
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document
was
printed on recycled paper
364687.1
2
Notice
was served
and published within
the
prescribed
time period in
accordance
with
the
requirements
of Section
3
9.2(b)
of the Act. (Application
at
Additional
Information
- Tab
“A.”)
The
Application
contained
sufficient information
to demonstrate
compliance with
Section
39.2(a)
of
the
Act
and the
Kane County Rules
of
Procedure
for New Regional
Pollution
Control
Facility
Site Approval Applications
in
Unincorporated Areas
of
Kane County
(“Ordinance”).
(Application
at ORD-1.)
B.
Public
Hearings
The public
hearing
on the Application
was
held
September
17 through October
10, 2002.
The
Hearing Officer
conducted a
public informational
meeting
on
September
12, 2002,
for
the
specific
purpose
of
answering
any questions
that
citizens
might have concerning
the
siting
process.
(9/12/02 Tr. at
3.)
WMII presented
six witnesses
at the public hearing
who testified
in support
of
the
Application
and the statutory
criteria. Ms. Sheryl
Smith
testified
that the Facility
was
necessary
and was
consistent
with
the Kane
County
solid waste
management
plan. Mr. Andrew
Nickodem
testified
that
criteria
2, 4,
7, and
9
were met. Mr. J.
Christopher Lannert
testified
that
the
Facility
was compatible with
the character
of the surrounding area.
Ms.
Patricia
Beaver-McGarr
testified
that the Facility was
located
so as
to minimize any effect
on the value
of surrounding
property.
Mr. Dale Hoekstra testified
that criteria
2 and 5 were met.
Mr.
David
Miller
testified
that
the
traffic patterns to and
from
the Facility
minimized
impact on existing
traffic
flows.
Members
of the general
public
were permitted
at the public
hearings
to present
evidence
and witnesses,
to make statements,
and to ask questions
by completing
the
“Submittal
of Written
Questions
to
be Asked of
a Witness”
form
as provided by
the Hearing Officer,
submitting
them
to
the
Hearing
Officer, and
then having
the questions asked
of the witnesses
by
the Hearing
This document ,,as
printed
on
recycled
paper.
364687.1
3
Officer. Members
of
the general
public
were also permitted to make an oral statement at
the end
of the public hearing. (9/12/02
Tr. at 30.)
Mr. Joseph
Cluchey testified
on
behalf of the South Elgin Countryside Fire Protection
District
and
presented
testimony regarding
Criteria
5 and 6.
His testimony neither supported
nor
opposed the Application. (10/3/02
Tr.
at 127.) Mr. Daniel Lynch
testified
on behalf of the
Village
of
Wayne and presented testimony regarding criterion 6. He testified against the
Application.
(10/9/02 Tr. at
9.)
Eight members of the
general public made
oral statements
and/or submitted
various
documents that were admitted into the record. (10/10/02 Tr. at 142-
192.)
Kane County retained legal counsel, Ms. Jennifer
Sackett Pohlenz, as well
as technical
consultants
from
Deigan
&
Associates,
LLC
and CEMCON, Limited/Coulter Transportation
Consulting,
LLC, to perform reviews of the Application. (10/9/02 Tr. at 24; 10/10/02 Tr.
at 5.)
Mr. Gary
Deigan and
Mr.
Brent Coulter testified
on the
Application regarding criteria 2 and
5,
and criterion 6,
respectively.
They did not testify in opposition to
the
Application. (10/9/02
Tr.
at 24;
10/10/02 Tr. at
5.) No
written
reports
were submitted to the Kane County Clerk
for
inclusion
in the record other than the Application. (9/17/02 Tr. at 11; Petitioner’s Exhibit
1.)
II. ARGUMENT
WMII contests the County Board’s decision to deny the Application because the
procedure used by the
County
Board
in reaching
that
decision was fundamentally
unfair. WMII
further contests the County Board’s siting denial because it is
wholly
unsupported
by the record
and is against
the manifest weight
of
the evidence.
The
Hearing Officer found that all of the criteria were met as stated in his “Findings
of
the
Hearing
Officer” (“Findings”)
and
recommended
that
the
County Board
grant local siting
This document was printed on rec3’cled
paper.
364687.1
4
approval subject
to certain conditions. The
County
Board
Chairman accepted all of the
Findings.
However,
the County
Board, while
it accepted
and
adopted all of the Findings and included
them
as Exhibit
“A” to
its
Resolution, stated that it did not accept the Findings to the extent that
they
were
inconsistent with the Walter Memorandum. However, the County
Board
did
not
accept
or
adopt the
Walter
Memorandum
or determine that any criteria were not met. The County Board
merely referred
to the Walter Memorandum as
the
basis for its refusal to accept all
of
the
Findings and find that criteria 2,
3, 6
and
8
were
met.
The Walter Memorandum offered
what Walter claimed to be a summary of evidence
presented at the hearings and
an
analysis
of the
governing
legal standards. In fact, it contained
erroneous legal argument and misstatements
of fact that
were not presented
or subject to cross-
examination at the hearing.
Its conclusion was that “the applicant has failed
to
establish
that it
has met the required standards
of
Criteria 2,
3, 6 and 8 as well as local Ordinances. Therefore,
the
application is defective
and the petition must be denied.” (Walter Memorandum,
p.
4.)
The Walter Memorandum was distributed
to County
Board
members on December 10,
2002, the same day they voted
on the Application. (Respondent’s Responses
to
Petitioner’s
Requests to Admit,
p.
2.) WMII had
no opportunity to respond to its factual and legal
inaccuracies, or to correct the erroneous summary
of
evidence.
WMII was unable to respond
to
the legal argument, which misstated the governing law.
The
result is a decision based on
matters
outside the record, erroneous
facts, and application of incorrect legal standards.
In addition
to, and indeed because of, the improper and unfair reliance
of the County
Board on the Walter Memorandum, the
County Board decision is unsupported and against
the
manifest
weight
of the evidence.
This document was printed
on re cycled paper.
364687.1
5
A. The
County Board
Denial
Was
a Legislative,
Not
an
Adjudicative, Decision
Siting
proceedings
under
the Act
are
adjudicatory.
Land
and Lakes Co. v. Pollution
Control
Board,
245 Ill.App.3d
631, 616 N.E.2d 349,
354
(3d Dist.
1993). Decisions
on
a siting
application are
to be
based
strictly
on the evidence
presented in
the record, and
the facts relied
upon are to
be
developed
by
the parties.
E
& E Hauling, Inc. v.
Pollution
Control
Board,
116
Ill.App.3d 586,
451 N.E.2d
555, 566 (2d Dist.
1983)
affd
107 Ill. 2d 33, 481
N.E.2d
664
(July
17, 1985).
The
purpose
of the statutory criteria
is to establish
the standards
by which the
siting
request
is to
be
evaluated,
so that the
siting decision is
based on
the
relevant
facts presented
during
the siting
process,
and not arbitrarily
or by extra-record
considerations.
Clutts v.
Beasley,
185 lll.App.3d
543, 541
N.E.2d 844, 845
(5th Dist. 1989).
Siting proceedings are
not the legal
equivalent
of
zoning hearings, which
have
traditionally
been
viewed
as
legislative
in
nature. In a zoning hearing,
a local
government
crafts
rules
of general
application based
upon facts and considerations
that may not have
been
presented
at hearing,
but
are made known
to the decision-maker
outside
the
hearing process.
These legislative
considerations
are proper
input
in
a
legislative
process
that
results
in
a
policy
decision.
People ex rel. Klaeren
v. Village
of Lisle, 202 Ill.2d
164,
781
N.E.2d 223,
228-29
(2002).
However,
such legislative
or extra-judicial
considerations
are inappropriate
where,
as
in a
siting proceeding,
the local
government
acts in a fact-finding
capacity
to
decide
disputed
facts
based
upon
evidence
adduced
at
hearing.
Village
of
Lisle,
781 N.E.2d at
234; Land and
Lakes
Co.,
616
N.E.2d
at 357. Facts that
are not presented
in the
record,
especially incorrect
or
misstated
facts, are
not
properly
considered
by a local
government
in
reviewing
and
deciding
a
siting request.
American Bottom
Conservancy
v. Village
of Fairmont City,
No. PCB 0 1-159,
This
document has
printed
on
recycled
paper.
364687.1
6
slip
op. at 9 (October 18, 2001); see also
Southwest Energy Corp. v. Pollution
Control
Board,
275
Ill.App.3d 84, 91, 655 N.E.2d 304 (4th
Dist. 1995) (local government
cannot exercise
its
legislative-type discretion in deciding siting
request).
Facts or information
presented
outside
the
record, to which
a
siting applicant is given no
opportunity to respond, is a violation of
fundamental
fairness.
Southwest
Energy
Corp., 275 Jll.App.3d at
93-94; City of Rockford v.
Winnebago County, No. PCB 87-92, slip op.
at
9
(November 19, 1987).
In addition, a local government may not
base its decision
on
factually incorrect findings
or erroneous data or
conclusions. Land and Lakes Co., 616 N.E.2d at 357.
Where a local
government
relies upon
inaccurate facts or erroneous
conclusions
in
denying a siting request,
the
applicant’s
right
to
a fundamentally fair hearing has
been violated. Land and Lakes Co.,
616
N.E.2d at
357;
City of Rockford, slip op. at 9.
A local
government
must confine itself to the
record,
and may not
consider supplemental, incorrect or erroneous
information, particularly
when the siting applicant has had no
opportunity to respond. Land and Lakes Co.
v.
Illinois
Pollution Control Board, 319 lll.App.3d 41, 743
N.E.2d
188, 196 (3d
Dist. 2000); Southwest
Energy
Corp., 275 Ill.App.3d at 93-94; Land
and Lakes Co., 616 N.E.2d at 357; City of
Rockford, slip op. at 9.
The
denial
of
the Application was based upon
the exercise
of
legislative discretion
by the
County Board.
The exercise of that discretion was
based upon
the
Walter Memorandum,
a
document that both
misapplied
the
law
and
misstated the facts. As
Wivill
was given no
opportunity to respond to the
Walter Memorandum, the County Board decision was based
upon
legal and factual errors.
These errors prevented the County Board from rendering an
adjudicative decision, and this violated WMII’s
right
to a fundamentally
fair
decision
making
process.
This
document
was
printed on recycled
paper.
364687.1
7
1.
The Walter Memorandum Misstated The Law
The
Walter
Memorandum misstated the law concerning criteria 2,
3,
6 and 8 and, as
such,
misapplied the standards to be applied
in
determining whether the statutory criteria were
met.
(a)
The Walter
Memorandum Applied the Wrong Standard
for
Criterion 2
Criterion 2 requires an applicant to show that
“the
facility
is so
designed, located
and
proposed to
be
operated that the public health, safety and
welfare
will be protected.”
(415 ILCS
5/39.2(a)(ii)). This
criterion requires
a
demonstration that the design or operation of the
proposed facility does not pose an unacceptable risk to
the public
health
and
safety.
Industrial
Fuels & Resources
v.
Pollution Control Board, 227
Ill.App.3d 533, 592 N.E.2d 148, 157
(1st
Dist. 1992). It does not,
however, require
a
guarantee against any risk or problem. Residents
Against Polluted Environment v. Pollution Control Board, 293 Ill.App.3d. 219, 687 N.E.2d
552
(3d Dist. 1997); File
v.
D&L Landfill, 219
Ill.App.3d 897, 579 N.E.2d 1228 (5th Dist. 1991).
Rather than explain how the design or operation of the Facility would pose an
unacceptable public
health risk,
the Walter Memorandum argued that criterion 2 was
not met
because WMII failed to identify certain schools in the area pursuant to the Ordinance and failed
to
consider the end use plan associated with the 1988 Siting
Approval
for the
Woodland III
Landfill Expansion (“1988 Siting Approval”) in evaluating traffic
flows
in and out of the
Facility. Hence, according to the Walter Memorandum, the Facility would not protect the
public
health and
safety,
and
would “directly conflict with the planned/promised use as a park”
and not
satisfy
criterion 2. (Walter Memorandum,
pp.
3, 4.)
These statements
in the Walter
Memorandum
are simply not true
(See infra
pp.
17-21,
27, 31).
Even if they were, they are not relevant in evaluating whether criterion
2
has
been
met.
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on recycledpaper.
364687.1
8
The transportation routes
of students attending schools
located
approximately
1 ‘/2 miles away
and
the effect
of
Facility
traffic on the 1988 proposed end use plan’ for the closed Woodland
Landfill
are not proper
standards in determining whether the Facility’s design and
operation
present significant
public
health
or
safety risks.
(b)
The Walter
Memorandum
Applied the Wrong Standard
for
Criterion
3
The Walter Memorandum
concluded
that
criterion
3 was not met for two
reasons: the
Facility was not compatible
with
the surrounding area, and WMII failed
to
meet
the requirement
of
Section 28(a)(4) of the
Ordinance. (Walter Memorandum,
p.
4.)
These conclusions are
not
proper considerations under
the
Act, which states that an applicant must demonstrate
that
“the
facility is located so as to minimize incompatibility with
the character of the surrounding
area
and to minimize
the effect
on the value of the surrounding
property.”
(415 ILCS
5139.2(a)(iii)).
First, the Walter Memorandum
argued that the planned use of the closed
Woodland
Landfill
(as
a park or
for passive recreation) and the surrounding area would
be “forcibly
altered”
by
the
development
of
the Facility.
(Walter
Memorandum,
p.
4.) According
to the
Walter
Memorandum,
anything
short of the proposed end
use as
a park
or a passive
recreation
area makes the
entire parcel
incompatible.
(Walter
Memorandum,
pp.
3,
4.)
As a result
of this
incompatibility, the Walter
Memorandum concluded that criterion 3 was not
met. The Act,
1
1t must be
emphasized that
the end use plan described in the 1988 Siting Application
for the Expansion
of the
Woodland Landfill
was
a proposed conceptual plan. It was
not, and has not been, approved
by Kane County,
any
local
government units or the
Illinois Environment Protection
Agency.
(9/17/02
Tr. at 135, 136.) A final
detailed
plan
will
not
be
implemented
until it has been
approved
by
all governing local government and
state
agencies.
This
document
was
printed on recycled
paper.
364687.1
9
however,
does not
require
a compatible
use;
it requires a
showing that any incompatibility
be
minimized.2
The Walter Memorandum further argued that the traffic
“traveling
in
and
out
of the
proposed
facility”
made the Facility
incompatible
with the proposed end use, and thus failed
to
satisfy Criterion
3.
(Walter Memorandum,
p.
4.)
Specifically, the Walter Memorandum stated
that
WMII proposed to use the Facility entrance for vehicles “traveling in and out...” of the
Facility and that this
directly
conflicts
with
the proposed
end use for the Woodland Landfill.
(Walter Memorandum,
p.
4.) Traffic in and out of the
Facility does not relate to the question
of
minimizing incompatibility with the character of the
surrounding area.
Moreover,
the Walter Memorandum
attempted to tie its conclusion as to why criterion
3
was not
met to a failure
of
WMII to meet criterion 2. It argued
that
if criterion 2
was
not met,
then
criterion 3 could not be met.
However,
the traffic
movements within the Facility do
not
relate
to
design or operational risks to the public health,
safety and welfare. Therefore,
these
traffic issues are not properly
considered
in determining
whether criterion 2 or criterion 3 have
been
met.
Second, the Walter Memorandum concluded that
criterion
3
was not met because WMII
failed to meet the 5-mile radius land use description
requirement
of Section 28(a)(4) of the
Ordinance. Specifically, the Walter Memorandum
concluded, “(a)ny conclusions without
this
evidence are significantly flawed.” (Walter Memorandum,
p.
4.) Criterion
3
does
not require
a
description
of land uses within a five-mile radius of the proposed facility. Criterion 3 speaks
in
terms of
“the character of the surrounding area.” (415 ILCS
5/39.2(a)(iii)) “Surrounding,”
2
In
fact, as
will be further
explained
below
(See infra
pp.
28-38),
the only testimony presented in this record
is that
the
Facility is
compatible with
the
character
of
the surrounding area. (9/17/02 Tr. at
56.)
This
document was
printed
on
re cycled paper.
364687.1
10
means “that
which
encircles
on all or
nearly
all
sides.”
(Webster’s
New
World
Dictionary,
3
rd
1991.) “Surrounding”
does not
include
any
area
extending
out
five
miles
from the
Facility.
In
addition,
and putting aside
for
the moment
the
issue of
whether there
is
any
logical
reason
or purpose in
describing all zoning
and
land
uses within five miles
of the
Facility,
strict
compliance
with a local
siting
ordinance
is an issue of
fundamental fairness,
not
of
whether
criterion
3
has been satisfied.
Daly v.
Village
of
Robbins,
Nos.
PCB
93-52,
93-54, slip op. at
6
(July 1, 1993).
The
fact
that WMII did not strictly
comply
with
Section 28(a)(4)
of
the
Ordinance
does not establish
a failure to satisfy
criterion 3.
To state or imply
otherwise
is to
misstate the
siting
law.
(c)
The Walter
Memorandum
Applied the
Wrong Standard
for
Criterion 6
The
Walter Memorandum
concluded
that
“(a)ll
existing routes
have
been
shown
to be
inadequate
by
expert
testimony,”
and therefore criterion
6
was not met.
(Walter Memorandum,
p.
2.) This is
inconsistent with the
requirements
of the Act,
which
states
that an
applicant must
demonstrate
that “the traffic
patterns to or from
the
facility
are so designed as to
minimize the
impact on existing
traffic
flows.”
(415 ILCS
5/39.2(a)(vi)).
Contrary to the
conclusion of
the
Walter
Memorandum,
the
Act does
not
involve a
determination
of
whether
there are any
acceptable
traffic routes,
or
whether impacts
have been
eliminated. Although
the Walter
Memorandum
correctly
stated, “Criteria
(sic)
6
required the
applicant
to
prove that they had
minimized
impact of
existing
traffic flows,” it
incorrectly applied
the Act in
evaluating the
Application
and improperly
concluded that all
routes
were
found
to be inadequate.
(Walter
Memorandum,
pp.
1,
2
and
4.)
This
document was printed on
recycledpaper.
364687.1
11
(d)
The
Walter
Memorandum
Applied
the Wrong
Standard
for
Criterion
8
The
Walter Memorandum
contended
that criterion
8
was
not met
due
to
failure
of WMII
to meet
one
requirement
identified
in the
Kane
County
Solid Waste
Management
Plan.
That
requirement
was
that WMII
develop
traffic
characteristics
of future
growth.
(Walter
Memorandum,
p.
3.)
Criterion
8
involves
review of
the
solid
waste
plan
language
to determine
whether
the
proposed facility
is
consistent
with the
plan.
Land
and Lakes
Company
v.
Randolph
County,
No.
PCB
99-59,
slip op.
at
31-32 (P.C.B.
September
21,
2000).
Strict
compliance
with
the solid
waste plan
is not
required.
City of Geneva
v.
Waste
Management
of
Illinois,
Inc.,
No. PCB
94-
58,
slip op.
at
22
(P.C.B. July
21, 1994).
There is no
requirement
in
criterion
8
that an applicant
gather
or develop
all information
called
for in a
solid waste
plan
before
a
proposed
pollution
control
facility
could
be
found
consistent
with
the
plan.
A
local
siting request
need
only be consistent
with
the
overall
purpose
and
specific
objectives
of the
solid
waste
plan.
The
request
may be consistent
with
the plan
even
though it
does not
strictly
comply
with
every
directive
in the
plan to
gather
or
develop
information
or data.
Consistency
depends
upon
being in accord
with the principles
and
objectives
of the
plan, and
not
upon
completing
each and
every requirement
to
provide
information.
This
is
particularly
true
where,
as
here,
the information
requested
is not
itself relevant
to
or
probative
of any
of the statutory
criteria.
Developing
traffic
characteristics
of future
growth
not
only
lacks
relevance
to the statutory
criteria, it is
inconsistent
with criterion
6, which
states
that
impact
on
existing
traffic flows
should
be
minimized.
A
solid
waste
plan
cannot require
This
document
was printed
on
re cycled paper.
364687.1
12
what
the Act does not permit.
Hence, to
require information
on future
traffic
characteristics
to
satisfy
criterion
8
both ignores
the
standard
for plan
consistency and contradicts
the Act.
(e)
The
Walter
Memorandum
Misrepresented
the Need to Comply
With a Local
Ordinance
The Walter
Memorandum
contended
that
the Application
was
defective
because WMII
failed to
meet two requirements
identified in
the Ordinance,
specifically Section
28(a)(4)
regarding
identification
of zoning
and land uses
five miles from
the
property boundary,
and
Section (31 )(d)
regarding identification
of all locations
where
garbage
trucks would enter
and
exit
the
county.
(Walter
Memorandum,
p.
4.)
Compliance
with a local
siting ordinance is
not
required
to satisfy the statutory
siting
criteria.
In fact,
the
Pollution
Control Board lacks
authority to
compel enforcement of
a local
ordinance, and
may only
review
such
ordinances
to determine
whether fundamental
fairness was
violated.
y,
slip op.
at
6;
Smith v. City
of
Champaign,
No. PCB 92-55, slip
op. at 4-5
(August
13,
1992).
The Walter
Memorandum’s
contention
that the Application
failed to meet the statutory
criteria because of
a failure to comply
with
the
Ordinance is
without
any
legal
basis. In fact,
the
contention flatly
conflicts
with
the
well established
principle
that
the Pollution
Control Board
cannot enforce
the
Ordinance,
but
may only review
it to consider
fundamental
fairness.
slip op.
at 6.
B.
The Walter Memorandum
Inaccurately
Summarized
The Evidence
As the
only County
Board
member who
attended
all of the
public
hearings
(Documented
attendance by
transcripts
on 9/17/02, 9/19/02,
9/24/02,
9/26/02, 9/30/02, 10/01/02,
10/03/02,
10/09/02, and
10/10/02.), Mr.
Walter was
relied upon by other
members of the County
Board
for
This document
ras
printed on re
cycled paper.
364687.1
13
a summary of the
evidence
presented at
hearing. However,
the
Walter
Memorandum
mischaracterized
and misstated
the
evidence relating
to
criteria 2, 3,
6
and 8. These
mischaracterizations
are fundamentally
unfair
because they were 1) the basis for
the Walter
Memorandum’s conclusion that the Application evidence
was flawed and 2)
relied upon
by the
County Board
in
its decision to deny the Application.
The
principal inaccuracies
are
described below,
in
the order in which they
appear in
the
Walter Memorandum.
1.
Criterion
6
— Traffic
Volume:
“Under cross-examination, their traffic expert’s testimony confirmed
that
the traffic
volume represented as existing traffic at the
time
of their
application should
have
been about 160, not the
five-year
average
of 227
as shown. They presented a five-year average traffic volume
when
the
volume
of
landfill related truck traffic was significantly
decreasing.
Their conclusions,
including
their assertion
that traffic
would
decrease,
are flawed. (Pp. 2 8-29, 9/30/02)” (Walter Memorandum,
p.
1.)
This is erroneous. Metro
Transportation Group, Inc. (“Metro”) relied upon
actual traffic
counts, not
historical data, to perform
its
evaluation
and reach its conclusion.
Mr. Miller testified “(t)he volumes
that
are actually shown
in
the figures
for existing
traffic were
related to
the
volumes
that
we counted on those days last year. The
227 that’s
referred to there
is a
historical
average that we obtained in connection with representatives
from
Waste Management
just
as a
perspective. But in terms of showing the existing
traffic volumes
in
our
figures, it was related to the counts that
we
actually made which
were
at the 160 truck
level.”
(9/30/02 Tr. at 28;
10/01/02 Tr.
at 22.)
The actual traffic counts are included in the
Application
in the
Appendix of the Metro report, titled “Traffic Count Summary.” (Application at
Criterion
This document was printed on recycled paper,
364687.1
14
6, Appendix.)
Contrary to the
Walter
Memorandum,
Metro
used actual truck
and
traffic
counts
collected
at the site entrance,
which
included
the lower
truck traffic
volumes.
The Walter Memorandum
ignored
Mr.
Miller’s
testimony, the actual
traffic counts
provided by Metro
in
the Appendix
of the its
report, and traffic
counts presented
in
Figures
5, 7
and
8
of its report
(summarizing
existing traffic
counts at street
peak
hours,
Facility
traffic
at
street
peak hours,
and total traffic
expected
at
street
peak
hours),
all
of
which were based
on
existing
traffic
conditions,
not historic
traffic
conditions.
2.
Criterion
6
— Traffic
Signal
Phasing:
“The
traffic expert
for the
applicant asserted
that
the use of Rt. 25
to
Bartlett Road
would not
work for
multiple reasons.
Among these
reasons,
the intersection
would
require
a
change
in the traffic signal
phasing
which
IDOT
has informed
them
would not
be granted.
(pp.
32-34,
9/30/02).”
(Walter Memorandum,
p.
2.)
This
is erroneous and does
not
accurately
represent
Mr. Miller’s testimony.
Mr. Miller
testified that
he personally
had discussions
with the Illinois
Department
of Transportation
(IDOT)
regarding the signal
phasing
at the Route
25/Dunham
Road
(“Rt. 25”) intersection.
IDOT
provided
two reasons why they
would not be
undertaking
a change of the signal
phasing
at
this
time. First,
IDOT is anticipating
realignment
of
Steams Road
in the near future,
which
would
provide
an
improved
intersection
with revised
signal phasing.
Second, IDOT
was
reluctant
to
change
the signal phasing
due to the existing
intersection
geometry and site
distance
concems.
Mr. Miller
testified that in
order
for
IDOT
to
consider
changing the existing
signal
phasing, a
detailed safety
study
would
be required
demonstrating that
revisions
to signal phasing
would not cause
safety
concems.
(9/30/02 Tr.
at
32,
33.)
This
document
was printed on recycled
paper.
364687.1
15
The Walter
Memorandum
stated
that the
signal
phasing
change
“would
not
be
granted.”
This is false.
No
application
was
made
to IDOT
to
request
a change
in signal phasing.
Therefore,
there is
nothing
that
“would
not be
granted.” All
that occurred
was
a discussion
between
IDOT
and
Mr. Miller,
discussing
IDOT’s
knowledge
of the
intersection
and its
reluctance
to
make
a change
at a
time when
the Steams
Road
realignment
was
already
scheduled
for
construction.
(9/30/02
Yr. at
32, 33.)
3.
Criterion
6
— Traffic
Signal
Warrants:
“A
traffic signal
would
ultimately
result in
three traffic
signals within
a
half-mile.
Mr. Miller,
for the applicant,
indicated
that
warrants
“.. would
not
even be
remotely
close” to meeting
criteria for
a
signal.
(p.
29-30,
10/01/02)
It is entirely
inappropriate
to
offer this as
a “remedy”
to
address
one
of the many
deficiencies
based
on expert
testimony
and our
inability
to
guarantee
this
condition.”
(Walter Memorandum,
p.
2.)
This
is
erroneous
and
misrepresents
evidence
in
the
Application
and
presented
at
hearing.
There is
no evidence
presented
in the
Application
that WMII
recommended
or
offered to install
a
traffic
signal
at
the Facility
entrance.
(Application
at
Criterion 6.)
Further,
Mr.
Miller
testified
that
the volume
of
traffic
exiting
the Facility,
in a worst-case
scenario,
is estimated
to
be in the
range
of 40
—45 vehicles
for any
one
hour.
Table
2 of
the
Metro
report
estimates
a maximum
of
approximately
54 vehicles
for any
one
hour. (10/01/02
Tr. at
29; Application
at Criterion
6,
Table
2.) Mr.
Miller
testified that
traffic
warrants
would
require
100 —
150 vehicles
per
hour
before
a traffic
signal
would be
considered.
(10/01/02
Tr. at 29.)
The
Walter Memorandum
argued that
it “is entirely
inappropriate
to
offer this
[traffic
signalj as
a
remedy...”
However,
it
was Kane
County’s
own expert,
Mr.
Brent
Coulter,
who
recommended
the addition
of
a
traffic
signal at
the Facility
entrance.
(emphasis
added)
(10/03/02
Tr.
at 79-81,
89.)
Mr.
Coulter
opted
to
use
a
warrant
standard
for “normal
highways”
This
document
was
printed on recycled
paper.
364687.1
16
which
is less than
the current
IDOT
standard
for
strategic
regional
arterials.
(emphasis
added)
(10/03/02
Tr. at
80.)
In
the
vicinity
of the
Facility, Rt.
25 is a strategic
regional
arterial.
(Application
at
Criterion
6,
P.
2.)
Mr.
Coulter
opted
to
use a
warrant of
70 vehicles
per hour
for
normal
highways,
instead
of the 150
vehicles
per
hour
warranted
for strategic
regional
arterials.
Even
so,
Mr. Coulter
admitted
that “if the
site is
approved
and volumes
are
monitored,
operating
conditions
are monitored,
signals
may
not
be warranted..
.“ (10/03/02
Tr.
at
141.)
The
Walter
Memorandum
unfairly
misrepresented
the testimony
of Mr.
Miller and
evidence
in the Metro
report.
In fact, the
Walter
Memorandum
wrongly
attributed
the testimony
of
the
County’s
own
witness
to
Mr.
Miller.
This blatant
error
continues
the demonstration
that
the Walter
Memorandum
included
an
inaccurate
account
of the evidence
and testimony
relevant
to this matter,
and presented
erroneous
facts.
4.
Criteria
2 and
8
— Schools:
“Criteria
2 required
that they protect
the
health,
safety
and
welfare
ofthe
public.
While agreeing
that
it would be
important
to
the
“...health
and
safety and
welfare
of those
students”
to have
traffic
studies
reflecting
the routes
of these
students,
their
traffic
expert
admitted
none were
considered.
(pp.
41-42, 09/03/02.)
Had they
complied
with Section
28(a)(4)
of
our
Ord.
01-281,
they
would
have ident
j/ied
the schools
as
well
as subsurface
mining
activities
to the north
already
generating
large
volumes
of
trucks.”
(Walter
Memorandum,
p.
3.)
Mr. Miller
testified
that he contacted
two
school
districts
to
determine
when new
schools
would be
opening,
was
familiar
with the
location
of the
schools, had
not seen
any
traffic
studies
that
were
prepared
for the schools,
and
did not find
traffic
studies
specific
to
the
schools
to be
a
significant
evaluation
with
regard
to protection
of
the
public
health and
safety
for
this Facility.
(9/30/02
Tr. at
41, 42;
10/01/02
Tr. at
85, 86.)
Mr. Miller
testified
that he considered
the
schools,
and
rendered
an
opinion that
they
were
not
significant
to his
analysis.
The Walter
This
document
was
printed
on
re’c1ed paper.
3646871
17
Memorandum
misconstrued
Mr. Miller’s
testimony
that
no
studies
“were
considered,”
because
as he
testified,
he
had not
“seen
any
traffic
studies that
were prepared
for
those
[schools]...”
(9/30/02
Tr. at 41.)
The
Walter
Memorandum
was
misleading.
Further,
Mr.
Miller testified
that
he
contacted
the St. Charles
school
district
(303),
and
obtained
information
on
their existing
bus
routes. Metro
also
contacted U-46
to obtain
its
bus
routing
information.
District
U-46
indicated
that it had
over
300 buses
and
it
would
take
“an
incredible
amount
of time
for
them to
determine
where
all those bus
routes are.”
Therefore,
Metro
was unable
to get
definitive
information
on
the
U-46
bus
routes.
(10/01/02
Tr. at 85,
86.)
Mr.
Miller testified
that
“the
number of
vehicles
in
proportion
to the
total number
going into
the
site
that would
be in the
area
of the schools
I
think will
be at a very
low number.
So
I’m
not
sure
that
in my opinion
that
there
really
is any
impact.”
(10/01/02
Tr. at
85.)
Under
cross-examination
by
the
Hearing
Officer,
Mr.
Miller
testified
that it
was
his
understanding
based
on
the discussions
with
the school
districts
that
“the routing
for
school
buses
is either
northbound
or southbound,
that
there is (sic)
no children
that cross
25 to
get to a
bus.”
(10/01/02
Tr.
at
122.)
Based
on all of the
facilities
that
he has
worked
on,
Mr. Miller
testified that
school bus
traffic
is not
a
significant
factor because
they
are part
of
the existing
traffic
stream,
and all
vehicles
are subject
to
stopping
for
buses,
including any
collection
vehicles
that
might
be
on the road.
(10/01/02
Tr. at
122.)
In
addition, Mr.
Lannert
testified
that
he
was
aware
of the
new schools,
but that they
were
outside
the
area
of
evaluation
and were
approximately
I Y2-miles
from
the
location
of
the
Facility.
(9/17/02
Tr.
at
81, 82.)
The
Walter
Memorandum
incorrectly
asserted
that WMII
did
not
consider
the public
health,
safety
and welfare
of the students
at
the two
new
schools. Two
witnesses
for WMII
This
document was
printed
on
recycled paper
364687.1
18
testified to
their knowledge
of
the
schools,
the location
of the schools,
discussion
with
the school
districts,
and
attempts
to
obtain
bus routing
information,
and
concluded
that
at a distance
of I V2
miles, the
Facility
did not
pose
any threat
to the
public
health,
safety and
welfare
of
the
students.
5.
Criteria
2 and
3—
Woodland
Landfill
End Use
Plan:
•
.the end use
plan
submitted
with that
application
[1988 siting
application]
makes it
clear
that the
intended
use for
this
site is passive
recreation.”
“These
conditions
were
not taken
into
consideration
in
Criteria
2,
or in
that portion
of
Criterion
3 that
deals with
incompatibility
with the
surrounding
area.
They
propose
to
use the site
drive
that
was to become
the access
drive
to the
park
for hundreds
of
trucks weighing
up to 80,000
pounds
each,
traveling in
and out
of
the proposed
facility
96
hours
per
week.
This will
directly
conflict
with
the planned/promised use as a
park.”
(Walter
Memorandum,
p.
3,
4.)
This
discussion
in the Walter
Memorandum
again
misrepresented
the
evidence.
Mr.
Lannert
testified on
multiple
occasions
that
the passive
recreational
end
use,
or
open
space, will
continue
as the
proposed
end
use ofthe
Woodland
Landfill.
(emphasis
added).
(9/17/02,
Tr. at
93, 99.
and 134)
Further,
he testified
that the
passive
recreational
features,
such
as trails,
overviews
and
overlooks,
would still
be
included
in the proposed
end use.
(9/17/02
Tr. at
102.)
Mr.
Nickodem
testified
that
an alternate
entry
location
for
the open
space/passive
recreational
area
would be
provided
instead
of the
current
entrance
area.
(9/19/02
Tr. at
146.)
The
statement
that
the site drive
was
to become
the
access
drive
to the
park
for hundreds
of
80,000-pound
trucks
traveling
in
and out of
the
proposed
facility 96
hours
per
week is simply
wrong.
First,
as
stated above,
a
different
entry
location would
be
provided
to
the park.
(9/19/02
Tr.
at 146.)
Second,
a
review
of
Tables
1 and 2 presented
in the
Metro
report
discloses
the
projected
traffic volumes
entering
the Facility
each
day:
152
roll-off
trucks,
weighing
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was printed
on
recycled paper.
364687.1
19
approximately
39,000
lbs each
when fully
loaded;
142
packer
trucks,
weighing
approximately
56,000
lbs each
when fully loaded; and
108
transfer
trailers, weighing
approximately
73,280 lbs
each
when fully
loaded and leaving, at
current roadway
weight restrictions.
(Application
at
Criterion
6,
p.
10,
11.) None
of the
trucks
entering
or
leaving the Facility
will weigh 80,000
pounds.
Only
approximately
108
transfer
trailers
will leave
the Facility
weighing approximately
73,280
pounds.
This is not
“hundreds” of
trucks.
Third,
the
Walter
Memorandum
incorrectly
stated
that this
would occur 96
hours per
week. The
hours of
waste
acceptance
for the
Facility are 6:00 a.m.
to
6:00
p.m.,
Monday
through
Saturday,
which
is 72 hours
per week.
(Application at Criterion
6,
p.
10.)
Mr.
Hoekstra
testified
twice
that
even
though
a
facility may
have
specified,
permitted hours of
waste
acceptance,
in actuality,
the operator may
choose to have waste
acceptance hours
that are shorter
than the
permitted
waste
acceptance
hours. (9/26/02 Tr. at
51;
10/3/02
Tr. at
9,
11.) The Walter
Memorandum presented
erroneous
evidence
to the
County Board.
Finally,
the Walter Memorandum
stated that
the proposed
Facility
“will directly
conflict
with the
planned/promised use
as a
park.”
(Walter Memorandum,
p.
4.) The
Woodland
Landfill
property
is
approximately 213 acres
in size. The Facility
will be located
on a 9-acre
parcel,
south
of
the Woodland
Landfill, and
will
take up
approximately 4.2 percent
of the
Woodland
Landfill property.
(Application
at
Criterion
2,
p.
2-1;
Petitioner’s
Exhibit No.
11.)
The
Hearing
Officer
noted
in
his Findings
that “The area on
which
the
transfer
station
is to be
erected is
not part of the Woodland
Landfill
as permitted by the
Illinois
Environmental
Protection
Agency. (Findings,
p.
9.)
The
Facility
will
utilize only 4.2
percent
of
the Woodland Landfill
property. It has
been
concluded
by Mr.
Lannert
to
be compatible
with
the surrounding
area. (9/17/02
Tr. at 56.) A
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document
has printed
on
recycled paper.
364687.1
20
separate
entrance
will
be
provided
to
the park,
and the
end
use plan
will
be developed
as
indicated
in the 1988
Siting
Approval.
The
Walter
Memorandum
misrepresented
all of
this
evidence
in concluding
that
the
Facility
“will
directly
conflict
with
the planned/promised
use
as
a
park.”
C.
The
Walter
Memorandum
Improperly
Considered
Information
Outside
The
Record
The
Walter
Memorandum
relied
upon
information
not contained
in
the
record
of
these
proceedings.
In this
case,
the
Walter
Memorandum
presented
the
following
evidence
in its
argument
to
persuade
the
County
Board
members
that
WMII
had not
met its
burden
of proof.
1.
Criterion
6
- Inbound
Collector
Trucks:
“South
Elgin,
Wayne
and
St. Charles
will
quickly
become
accustomed
to
no
more
garbage
trucks.”
“Inbound
collector
trucks
vill
prevent
reduction
of the
traffic
burden,
which
was
to occur
with
the closure.”
(Walter
Memorandum,
p.
1.)
During
the hearing,
no
evidence
was
presented,
nor
did
any expert
testify
as to
the state
of
the
public
in
South
Elgin,
Wayne
and St.
Charles.
In
fact,
the
statement
is illogical
because
even
if the Facility
were
not developed,
residents
of
these
communities
will
continue
to generate
waste
that will
require
collection
and disposal.
Garbage
trucks
will
remain
a part
of the traffic
volume
in these
communities so
long as
waste
is
generated.
2.
Criterion
6
- Over-Burdened
Bridges:
“24
of 29
townships
are
entirely
or partially
west
of
the river,
requiring
hundreds
of truck
per
day
to cross
our
already
over-burdened
bridges.
This
site
fails to
reasonably
minimize
impact
on existing
traffic
as required
in
Criteria
6.”
(Walter
Memorandum,
p.
3.)
This
document
was printed
on
re cycled
paper.
364687.1
21
At no time
during these proceedings
was
any testimony provided, nor opinions rendered,
regarding the volume of trucks crossing bridges within the
service
area
and
the
burden on such
bridges. The traffic routing proposed
by
WMII
does not require
transfer trailers
to
cross
the
river,
nor
does
the
traffic routing proposed
by
the County’s expert require transfer trailers to
cross the
river.
The
service
area reflects the communities
that
WMII is currently servicing
and
that it intends to service in the future. (10/03/02 Tr. at 49.) Collection trucks
will continue
to
collect waste
along
customer routes within the defined service area as they
have
done in the
past.
3.
Criterion
6 - Rail
Lines:
“The
applicant
admitted
that they gave no consideration to the use
of a
rail line located near the property
that could have eliminated the
need for
hundreds of transfer trailer trips each day.” (Walter Memorandum,
p.
3.)
Mr. Miller testified that he was “not aware of any proposed use of the railroads to handle
any garbage...” (9/30/02 Tr. at 42.) The
Walter
Memorandum insinuated from Mr. Miller’s
testimony that the use of a rail line “could have eliminated
the need
for hundreds
of
transfer
trailer trips
each day.” There were no opinions or conclusions rendered by any witness
(including the County’s witness), nor any evidence
presented,
that
the use of a rail line
would
eliminate the need for the transfer trailers. This
statement is an opinion presented in the
Walter
Memorandum supported by no
evidence.
It falsely
suggested to other County Board members
that there was.
4.
Criteria 2 and 3 - Comprehensive Plan of South Elgin:
“The
Comprehensive
Plan
of South Elgin relied upon promises made
by
Waste Management and conditions imposed by this Board in 1988.
This
Plan
was ignored as it applies to Criteria 2 and Criteria 3.” (Walter
Memorandum,
p.
3.)
This document was printed on
recycled paper.
364687.1
22
There is no
evidence or testimony in the record establishing that the Comprehensive Plan
relied upon
a
promise or condition that a transfer
station
could
not be constructed on any part of
the Woodland Landfill property. There is no evidence or testimony in the record supporting the
claim that
the
statements made
by
WMII
or
the conditions imposed by the County Board
in
the
1988 Siting Approval meant that no transfer station
could ever
be built on
any part of the
Woodland Landfill property.
Moreover,
the
Comprehensive
Plan
was not ignored as it applied to criteria 2 and
3.
(9/17/02 Tr. at 87-102.)
Mr.
Lannert specifically
considered
the
Comprehensive Plan
and found
the Facility to be consistent
with
it. (9/17/02 Tr.
at
87-89.)
Finally, the 1988
Siting Approval
is not
properly considered in these proceedings.
For
the
County
Board
to
render a decision based upon the meaning of a
previous siting
approval
condition is to rely upon information neither
presented
in this record, nor deemed inappropriate
for
consideration
by
the Hearing Officer. (9/19/02 Tr. at 15.)
5.
Criteria 2 and
3
- Request for Relief:
“We are being asked to
relieve
Waste Management ofthe obligations
already agreed to and imposed upon them
by
this Board.” (Walter
Memorandum,
p.
4.)
At
no time
during these proceedings did Waste Management
ever
request to be relieved
of
any obligation
imposed upon them
by
the County Board.
In summary,
the
Walter
Memorandum
was a legal argument intended to persuade
the
County
Board to deny the Application. In its zeal to
convince
the County Board, the Walter
Memorandum
misstated
the
applicable
law, misrepresented testimony,
presented erroneous
evidence
and argued matters not presented in the siting record. WMII had no opportunity
to
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document was
printed
on recycled paper.
364687.1
23
respond
to or
correct the
inaccuracies and
errors
in
the document
relied on by
the County
Board
in reaching
its
decision. The County Board’s knowledge of and reliance on the erroneous and
misleading Walter Memorandum was fundamentally unfair not only because WMII had no
opportunity to respond to it, but
also
because the County Board
decision
was based upon
incorrect legal
standards, matters
outside
the
record, and
erroneous facts.
D.
The County Board’s Failure To
Find
That Criteria 2, 3, 6 And
8
Were
Met Is
Against The
Manifest
Weight
Of The
Evidence
The County
Board failed
to find that
WMII
met
the statutory requirements of criteria 2,
3,
6 and 8. (Resolution
No. 02-431.)
It
did
so
on the basis
of the Walter
Memorandum.
However,
the
Walter Memorandum, as demonstrated above, misapplied the law and misstated the
evidence. As a result, the County Board’s failure to find that criteria 2, 3, 6 and 8 were met
is
against the
manifest weight of the evidence.
The Hearing
Officer
found that all of
the criteria were
met, and proposed conditions
to
remedy any concerns. (Findings,
pp.
11-27.) The County Board Chairman accepted all
of those
findings and conditions. (Resolution No. 02-431.)
Notwithstanding
this
acceptance, the
County
Board rejected
the Hearing Officer’s findings in favor of the
Walter
Memorandum.
The
statements
in
the Walter Memorandum relating to criteria 2,
3, 6 and 8
are against
the manifest
eight
of the
evidence.
1.
Criterion 2
Criterion 2: “the facility is so designed, located and proposed to
be
operated that
the
public health,
safety and welfare
will
be protected”
415
ILCS 5139.2(a)(ii)
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t’as
printed on recycled
paper.
364687.1
24
The second
criterion
to
be established
is that the Facility
is
so
designed,
located and
proposed to
be
operated that
the public health, safety
and welfare
will be protected.
This
criterion
requires
a demonstration
that
the proposed
facility
does
not pose an unacceptable
risk
to
the public
health
and
safety.
Industrial Fuels
& Resources v. Pollution
Control
Board,
227 Ill.
App. 3d
533, 592 N.E.2d 148,
157 (1st Dist.
1992). It
does
not,
however,
require
a guarantee
against
any risk or
problem.
Residents Against
Polluted
Environment
v.
Pollution
Control
Board, 293 Ill. App.
3d. 219, 687 N.E.2d
552
(3rd Dist.
1997); File v. D&L
Landfill, 219
Ill.
App.
3d 897,
579
N.E.2d
1228 (5th
Dist. 1991).
No
qualified
witnesses were
presented or offered
evidence
to
demonstrate
that
the
design
of the Facility is
flawed
from a public safety
standpoint
or that its proposed
operation
poses
an
unacceptable
risk to public
health
or safety.
The
Walter
Memorandum
did not
establish
how
particular
design or operating
features
of
the
transfer station might
increase risk
of harm to
the
public,
or that
the
Application
ignored or
violated
any applicable government
regulations.
Where, as in these
proceedings, no such
showings were
made, the prima
facie case
stands
unrebutted
and criterion
2 has
been satisfied.
Industrial Fuels,
592 N.E.2d
at 157.
It was inappropriate
for the County Board
members
to rely on the Walter
Memorandum
particularly
when, here
in
these proceedings, the
Hearing Officer
found that not
only was
criterion
2 met, but
that
WMII’s witnesses were
credible witnesses.
With regard
to Mr.
Nickodem
(WMII’s engineering
witness),
the Hearing Officer
found
him “to
be a
knowledgeable,
credible
witness.”
(Findings,
p.
14.) With
regard
to
Mr.
Hoekstra
(WMII’s
operations
witness),
the Hearing
Officer
found
“his
testimony to be helpful
and
believable.”
(Findings,
p.
16.)
This
document was printed
on recycled paper.
364687.1
25
The Walter Memorandum identified three reasons
as to
why criterion 2 was
not met:
1)
WMII did not identify the
two
new schools in the area and that students would not
be
protected
from the Facility because WMII did not consider a traffic study reflecting the routes of
the
transportation of students, 2) the incorporation
of
the
end use
plan
as
identified
in the 1988
Siting
Approval such
that
it is
altered
by the addition of the Facility, and 3) the
travel
of trucks moving
in and out of the Facility entrance, previously identified as the entrance to the proposed
end use.
(Walter Memorandum,
pp.
3, 4.) The
evidence
in
this
record
does not support
the findings
of the
Walter
Memorandum,
nor that the public health, safety and
welfare will
be jeopardized.
The
Walter Memorandum
incorrectly asserted that WMII did not consider the public
health,
safety and welfare of
the
students at the two new schools. Two witnesses
for WMII
testified to their
knowledge
of the schools, the location of the schools, discussion with the
school
district,
attempts
to obtain bus routing information,
and
concluded that at
a
distance
of I V
2
-miles
from the Facility did not cause a detriment to the public health, safety and welfare of the
students.
(See suprapp. 17-19.)
The
Walter
Memorandum concluded that the closed
Woodland
Landfill could not
be
developed
as planned due
to the
development of the
Facility,
that the Facility “will
directly
conflict
with the planned/promised use as a park,” and as such, is not protective
of the public
health,
safety and welfare. (Walter Memorandum, p.4.) The evidence contradicts
these
conclusions.
The Facility
will
be an approximately 9-acre parcel, located in the southeast corner
of
the
Woodland
Landfill property. (Application
at
Criterion 2,
p.
2-1.) The Woodland
Landfill
property
is
approximately 213 acres in size. The Facility will take up approximately 4.2
percent
of
the
Woodland Landfill
property.
(Petitioner’s Exhibit
No. 11.)
The
Hearing Officer noted
in
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on
recycled paper.
364687.1
26
the Findings that “The area on which the transfer station is to be erected
is
not part of the
Woodland Landfill as permitted by the Illinois Environmental Protection Agency. (Findings,
p.
9.)
The Facility will be separate and distinct from the closed
landfill.
There
is
no evidence in this record that WMII will not develop the closed Woodland
Landfill as a
passive recreational area. Mr. Lannert testified on multiple occasions that
the
passive recreational end use, or open space, will continue as
the proposed
end use ofthe
Woodland Landfill. (9/17/02, Tr. at 93,
99,
134) Further, he testified that the
passive
recreational features, such as
trails, overviews and overlooks, would still be included
in
the
proposed end use. (9/17/02
Tr. at 102.) Again,
Mr.
Lannert testified that “all
of
the Woodland
Landfill
property, that portion that the footprint of the landfill sits on as
well
as the other residual
areas
are open space now and that
will
ultimately be
the
use in that area.”
(9/17/02 Tr. at
99,
134.)
Further, Mr.
Nickodem testified that an alternate entry location for the open space/passive
recreational area
would
be
provided instead
of the
current entrance area, which will
be used for
the
Facility. (9/19/02 Tr. at 146.)
WMII
accounted for the protection of public safety by
proposing to
relocate
the
entrance to the closed landfill.
The
conclusions presented in the Walter Memorandum that criterion 2 was not met
are
unfounded.
By relying on the inaccurate summary of evidence related to criterion 2 as presented
in the
Walter Memorandum, the County Board erred in concluding that criterion 2 had not
been
met. The
record contains substantial testimony and
persuasive
evidence that
the Facility
has
been designed, located and
proposed to be operated to protect the public
health,
safety and
welfare.
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document i’as
printed on recycledpaper.
364687.1
27
2.
Criterion
3
Criterion 3: “the facility is located so as
to minimize incompatibility with
the character
of the surrounding
area and
to minimize the effect on
the
value of the surrounding property” 415 ILCS
5/39.2(a)(iii)
The third criterion
provides
that the Facility be located
so as to minimize incompatibility
with the character
of
the surrounding area
and to
minimize the
effect on the value of surrounding
property.
This criterion requires
that
the applicant demonstrate that it has done
or
will
do
what
is
reasonably feasible to minimize incompatibility or effect on surrounding
property
values.
File v.
D&L Landfill, 219 Iii. App. 3d 897,
579 N.E.
2d 1228 (5th Dist.
1991). It does not require that
the applicant choose the best possible location to guarantee that
no
fluctuation
in property value
occurs.
Sierra Club v.
Will
County Board, No. PCB 99-136, slip op. at 27 (P.C.B. August
5,
1999), citing Clutts v. Beasley, 185 Ill. App. 2d 543, 541
N.E.
2d
844, 846 (5th Dist. 1989).
WMII presented two
witnesses who
testified regarding criterion
3.
Mr. Chris
Lannert
testified on the character of the surrounding area and minimizing incompatibility
of the Facility
with the
surrounding area. Ms.
Patricia
McGarr
testified
on the minimization of any impact
to
property values surrounding the Facility.
No other witnesses testified in these proceedings regarding
criterion
3. Again, the
Hearing Officer found the testimony of both Mr. Lannert and Ms.
McGarr to be probative
of
Criterion
3
and found that WMII had met criterion
3.
(Findings,
p.
18.)
The
Walter Memorandum argued that Wivill did not
prove that the Facility would
minimize incompatibility
with the
character of the surrounding area. It
identified three areas
where WMII failed to meet criterion
3.
The Walter Memorandum
claimed that WMII “ignored”
the
Comprehensive Plan of South Elgin
which
“relied upon promises
made by Waste
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on re’c1ed paper.
364687.1
28
Management and
conditions
imposed
by this
Board
in 1988,” and
as
well, that the Kane
County 2020 Plan
also relied upon
the 1988 siting
application
end use plan.
(Walter
Memorandum,
pp.
3,
4.) It
next claims that
criterion
3 was not met because the use of the
Facility drive that was to become an access
drive
to the closed Woodland Landfill passive
recreational area “will directly conflict with the planned/promised
use as
a park,” and
suggests
that
if the Facility is
approved, “the
planned use of this property and the surrounding area will
be
forcibly altered.” (Walter Memorandum,
p.
4.) Lastly, the Walter Memorandum argued
that
WMII failed properly to evaluate the character of the
surrounding area and
potential
property
value impacts because it only evaluated
a
1-mile radius around
the
Facility
instead
of a 5-mile
radius. (Walter Memorandum,
p.
4.)
Mr. Lannert
testified
that
the Facility is compatible with the character of the surrounding
area because of the existing industrial and business uses adjacent
to
the site, either
zoned
industrial
or B-3,
that the agricultural
and open space uses are predominant in the study area,
and
that screenings and buffers will enhance compatibility. (9/17/02 Tr. at 56, 57.) More
specifically, Mr.
Lannert testified
that the Facility is surrounded by existing industrial uses,
including a
concrete pipe plant to the
south, the
closed Tn-County Landfill, the closed
Elgin
Landfill,
the
railroad tracks embankment, and an asphalt paving
and
contractor’s yard.
(9/17/02
Tr.
at
59, 73,
101, 102.) In fact, he testified that “if there ever was
a great
location
for a transfer
station, it
would be in this corner
[of
the
Woodland
Landfill
property].”
(9/17/02
Tr. at 101.)
Mr. Lannert stated
that the 9-acre
parcel for the Facility is
“very
appropriate in the context
of this
portion
of
this land” and that it is “a very similar, if not
upgradeable use in this location.”
(9/17/02 Tr. at
102.)
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364687.1
29
Mr. Lannert
testified, and
his
report demonstrates,
that he evaluated
the Kane County
20/20
Plan
and
the South Elgin Comprehensive
Plan.
(9/17/02 Tr. at 59;
Application at Criterion
3,
Lannert
Report,
p.
12.) The Facility
is consistent with
those plans and
the
open space
designations
for the
Woodland
Landfill
area, because of the
mixture of
uses
in the surrounding
area,
including “industrial
uses, the concrete pipe
plant
to
the
south, those
uses
on
the
corner,
have
been there
historically..,
for a long time.
And
I think
that
the open
space
uses
with
the
Prairie Path
and
with the
reclaimed
end use of
the landfill.. .is the
reason that it is
compatible.”
(9/17/02
Tr.
at 59.) Mr. Laimert
described the
buffering of the Facility
from surrounding
land
uses,
including
the adjacent Prairie
Path.
The
Prairie Path will be
buffered from
the Facility
by a
20-foot high
wooden
screening
wall,
mounted
atop an 8-foot
retaining wall, and
will be situated
adjacent to
existing vegetation.
(9/17/02 Tr. at
55, 56.)
Extensive
questioning
by the Attorney
for the Village
of
South Elgin
attempted
to
portray
Mr.
Lannert as
not having accounted
for the open
space
plans
in the area.
Mr.
Lannert testified
that his evaluation
in the immediate
vicinity of the
Facility
(within
a 1-mile radius) indicated
that
46%
of the
area is either agricultural,
open space
or farmland; 26%
of the
area
is
residential,
and
the remaining
28% is either industrial
or
other
use. (9/17/02 Tr.
at 50,
51; Application
at
Criterion 3,
Lannert
Report,
p.
9.) The
“immediate
neighbors are
either industrial
or business
uses,
and
only
further
removed
to the
south
and further removed
to
the north
and west” are the
residential
uses. (9/17/02 Tr.
at 109.) He
testified that the plans
talk
about “a
focus of
predominantly
open space uses
in the area and
we
are
consistent
with
that...” (9/17/02
Tr. at
92.)
Mr.
Lannert
on
several
occasions
testified that
the Facility is a
9-acre parcel, located
southeast
of the
Woodland Landfill, and
that “all of the
Woodland Landfill
property,
that
portion
that the
footprint of
the landfill
sits on
as well
as
the other residual
areas are
open space
now and
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that
will ultimately be the
use
in that area.” (9/17/02
Tr.
at 99.) Contrary
to
the claims
in the
Walter
Memorandum and
by
other objectors, Mr. Lannert did not ignore the Kane County
20/20
Plan,
the South Elgin Comprehensive Plan, or the
County open space goals of the 20/20
Plan.
Despite a ruling
from the Hearing Officer that the County Board’s 1988 Siting
Approval
is not relevant,
the Walter Memorandum argued that the
1988
Siting Approval
had to be
considered
in order for WMII to
meet criterion 3 because WMII ignored conditions imposed
previously
by
the County
Board in its
evaluation.
(9/19/02
Tr. at 15; Walter Memorandum,
pp.
3,
4.) Notwithstanding
the irrelevance of the 1988 Siting Approval to whether criterion
3 was
met,
the evidence presented
by WMII refutes this contention. Mr. Lannert repeatedly
testified that
the
passive recreational end
use, or open space,
will
continue as the proposed end use
ofthe
Woodland Landfill. (emphasis added) (9/17/02
Tr. at 93, 99 and 134.) Further, he testified
that
the passive recreational
features, such as trails, overviews and overlooks, would
still be included
in the
proposed
end use. (9/17/02 Tr. at 102.) The
Hearing
Officer concluded
in his
Findings
that “the area on which the
transfer station is to be created is not part of the Woodland
Landfill
as
permitted
by
the
Illinois Environmental Protection
Agency.”
(Findings,
p.
9.)
With regard
to
the
entrance to the proposed
end use for the closed landfill, Mr. Nickodem testified
that an
alternate entry location
for the open space/passive recreational area would be provided
instead
of
the
existing entrance area,
which would be used for the Facility. (9/19/02 Tr. at
146.)
There
were
no
witnesses
presented in opposition to criterion
3. No evidence was
presented
which
substantiated the claims made in the
Walter Memorandum that if the
Facility
were approved, “the planned
use of this property and the surrounding area will
be forcibly
altered.”
(Walter
Memorandum,
p.
4.) There is no
evidence that indicates that
the operation
of
the
Facility
“will
directly
conflict
with
the planned/promised use as
a park.” (Walter
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Memorandum,
p.
4.) All
of
Mr.
Lannert’s testimony and opinions demonstrate
an
extensive
evaluation of surrounding properties, land
uses, and
knowledge
of local community plans. His
testimony concludes that the Facility is
compatible with the surrounding area. The claims
in
the
Walter Memorandum are contrary
to
the
unrefuted testimony of Mr. Lannert.
The Walter
Memorandum also argued that criterion 3 was
not met because WMII
did
not
evaluate a 5-mile radius from the Facility as
required by the
Ordinance.
Mr. Lannert evaluated
the surrounding area within
a 1-mile radius from the Facility. (Application at Criterion 3,
Lannert
Report,
p.
6.)
All of the land uses and zoning designations were identified, described,
graphically
presented
and included in the Application. (Application at Criterion
3, Lannert
Report,
p.
2,6-9, and Exhibit
1.)
Additionally,
a
review
of Exhibit I of the Lannert report
demonstrates that zoning classifications were
provided
outside
the 1-mile radius. In fact, for the
Village
of South Elgin, it included zoning information up to approximately 2 miles
from the
Facility, including many areas west of the Fox River. (Application at
Criterion 3, Lannert
Report,
Exhibit
1.)
As stated above, the
Hearing Officer stated in his Findings that “The
County’s Ordinance indicates the applicant is to conduct a study within
a
five
(5) mile radius of
the site.
State statute
is silent on any area where the study must be conducted.
I
have carefully
reviewed
Mr.
Lannert’s
reports,
studies
and testimony, and I find them to be
in
substantial
compliance with the Ordinance.” (Findings,
pp.
17, 18.) Moreover, criterion
3
states that
incompatibility
is to be minimized for the “surrounding area.” “Surrounding,”
means “that
which encircles on all or nearly all sides.” (Webster’s New World Dictionary,
3’
1991.) There
is no
basis to conclude that the “surrounding
area” is more than a mile removed
from the
Facility. The Act clearly does not state that
an evaluation must include an area five miles
out
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32
from the property line. It simply states
that
the applicant
must
locate
the
facility to minimize
incompatibility with the
character
of
the surrounding
area.
The Walter
Memorandum presented
no
support for its arguments claiming that criterion
3
was not met. Other than Mr. Lannert, no other
witness testified
regarding
this portion of
criterion 3, relating
to minimizing incompatibility with the character of the
surrounding
area.
There was no
impeaching evidence
presented that
the Facility is incompatible, or that WMII has
not done or
will not do what is reasonably feasible to minimize any
incompatibility. There is
ample evidence in the
record to establish that WMII has met criterion 3.
3.
Criterion 6
Criterion 6: “the traffic patterns to or from the
facility are
so
designed
as
to
minimize the impact on existing traffic flows: 415 ILCS
5/39.2
(a)(vi)
The
sixth criterion to be established is
whether
traffic patterns to or
from
the Facility
will
minimize impact on
existing traffic flows. The issue is not whether there is any acceptable route
or
no negative impact, but
whether
any impact on traffic
flow
has been
minimized. Fairview
Area Citizens
Task
Force
v. Illinois Pollution Control Board, 198 III. App. 3d
541,
555 N.E.2d
1178, 1187
(3rd Dist. 1990). A traffic plan is not required; questions
regarding
traffic noise,
dust
and
driver negligence are not
relevant.
Id. The key
principal is to minimize impact on traffic
as
it
is impossible to eliminate
all problems.
Id.
Mr.
Miller testified
regarding
criterion 6. His
analysis,
and the
subsequent basis for
his
opinion,
consisted of field visits of the site and surrounding area, a personal transfer
trailer
ride
on
the identified
traffic
route, observation
of
traffic operations, evaluation of surrounding
roadway
characteristics,
daily and peak hour traffic counts, projection of traffic (trip) generation
from the Facility,
evaluation of traffic assignments (directional
distribution), a
capacity analysis,
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a
gap
study analysis, a
site
distance analysis, and
a
review
of on-site stacking of trucks within the
Facility. Field visits were conducted
of the site and the
surrounding
area to
observe
traffic
operations
and to
collect information
on the surrounding
roadway characteristics
and traffic
controls. (9/30/02 Tr. at
10,
11.) His analysis and evaluation of the impact of the Facility on
existing traffic was
extensive.
The Walter Memorandum’s
argument that criterion 6
was
not met
was based on
a
mischaracterization of the
testimony
of Mr. Miller. Further, the argument did not accurately
account for the testimony of the County’s own expert, Mr. Brent Coulter.
The conclusion of the Walter Memorandum was that “all existing routes have been
shown
to be inadequate by expert testimony.” (Walter Memorandum,
p.
2.) The only two experts
who rendered an
opinion during
these proceedings
regarding impact
of
the Facility
on existing
traffic flows were Mr. Miller and the County’s witness, Mr. Coulter. Both experts testified
to a
variety of traffic
routes, and
both testified that
suitable
routes existed. The conclusion in
the
Walter Memorandum to the contrary is unfounded.
Mr.
Miller recommended
a route for
transfer trailers associated with the Facility
that
would require
trucks to exit the Facility and travel south on Rt. 25 to Illinois Route 64, and
then
turn
left and travel east to Illinois Route
59
(“South Route”). (9/30/02 Tr. at 22-23.) Mr.
Miller
recommended this route because it “presented the least impact on existing traffic flows.”
(9/30/02
Tr. at
44.) The basis for
his opinion
is that this route utilizes all state maintained
routes,
it
eliminates the
need for transfer
trailers to turn left
from the
Facility
and travel through
the
Rt.
25/Dunham Road intersection, Rt. 25 in the vicinity of the Facility operates at only 53%
of its
capacity, and
Facility peak traffic
hours do not coincide
with
street peak traffic hours on Rt.
25.
(9/30/02 Tr.
at 16, 23,
and
33 - 34.) With the addition of Facility traffic,
Rt.
25 would then
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operate at approximately
56% of its
capacity.
(9/30/02
Tr. at 24.) While this
was
the route Mr.
Miller
recommended
as it presented the least impact on existing
traffic
flows,
it was
not the only
route he
evaluated.
Mr. Miller also evaluated two other alternate routes, including one
that would
have
transfer trailers proceed
north
from the
Facility
on Rt.
25,
through the Rt. 25/Dunham
Road
intersection, and then proceed south either on Dunham Road or turn
east onto Stearns
Road.
Constraints with the connector
road
regarding stop conditions and road
widthlgeometry,
as well
as
constraints
at
Stearns
Road with no turn
lanes, ruled
out
these alternate routes in the short
term.
(9/30/02 Tr.
at
36-38; 10/01/02 Tr.
at
97, 98.)
The other alternate route evaluated by Mr. Miller included one that
would
have transfer
trailers
proceed north from the Facility on Rt.
25,
through the Rt.
25/Dunham
Road intersection,
proceed
north
to
the
intersection
of Rt.
25 and West Bartlett Road, and then proceed east
on
West Bartlett Road. Traffic counts were
performed
and capacity
was evaluated at the
intersection of Rt. 25 and West Bartlett Road. The intersection of Rt.
25
and
West
Bartlett
Road
operates at a
level
of
service
C.
(10/01/02 Tr. at
15.)
Mr. Miller testified that
it is
possible to route transfer trailers along this route. However,
as he
explained, “one of the criteria that we were trying to minimize
was
that
we
would be
taking
these
transfer trailers through the intersection of 25 and Dunham.” (10/01/02 Tr. at 101.)
In
addition, he
testified that loaded
“transfer
trailers would be turning left from the site versus
going
right to
go
south on 25.” (10/01/02 Tr. at 104.)
Even
though there
were adequate
gaps to
accommodate
the turns, it is an
easier
maneuver to make a right turn. (10/01/02 Tr. at
104.)
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Mr. Miller testified that he expected that the additional traffic added to the
Rt.
25/West
Bartlett Road intersection would still result in a level of service C at that intersection. (10/01/02
Tr. at 16.)
A level of service analysis was performed at the intersection of Rt. 25 and Dunham
Road.
It
operates at a
level
of
service
F in
the morning
and
afternoon street peak hours.
(9/30/02 Tr. at
16; 10/01/02 Tr. at 15.)
However,
Mr. Miller testified that the existing Rt. 25/Dunham Road
intersection could operate
so
as to not impact the current level of service F at that
intersection,
because “the
volume
of
traffic
coming
to the site in early years will actually be
the same or less
than
what
is
occurring to the landfill right now.” (10/01/02 Tr. at
83)
Mr. Coulter
concurred that
such a
condition could exist. (10/09/02 Tr. at
98.)
Mr. Miller concurred that the West
Bartlett
Road
alternative was
a straighter, and
“a little
bit shorter”
route. (10/01/02 Tr. at 118.) At no time did
Mr.
Miller testify that
this route did not
minimize impact on existing traffic. He
simply
preferred the south route because it presented
the
least
impact
on existing traffic flows. (9/30/02 Tr. at 44.)
The County
presented
Mr. Brent
Coulter
as an expert
witness who evaluated
the Metro
report. Mr.
Coulter did not testify in opposition to the Application. (10/09/02
Tr. at 24.) Mr.
Coulter
testified that the south route “is not suitable as a route of waste transfer vehicles,”
and in
his opinion,
“would not
minimize impact on existing traffic flows.” (10/09/02
Tr. at 35.) He
testified that the
south route
did
not minimize impact due
to
the general alignment
of Rt. 25,
residential street functions, and the turning
radius
at the Rt. 25/Rt. 64 intersection.
(10/09/02 Tr.
at 36, 82.)
Consistent
with
the testimony of Mr.
Miller,
Mr. Coulter testified that the
routing of
transfer trailers
to the Rt. 25/Dunham Road intersection, and then south along
Dunham
Road
or
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turning
east onto Stearns Road, would not minimize impact to existing traffic flows.
(10/09/02
Tr. at 52,
56.)
Mr. Coulter testified
that the
routing
of transfer trailers north on Rt. 25, through the Rt.
25/Dunham Road intersection, north to
West
Bartlett Road, and then east on West Bartlett
Road
(“North Route”) was a suitable route, and had characteristics that
made this a “candidate for
consideration as a routing
for
waste transfer vehicles.”
(10/09/02 Tr. at 58, 103.) He highlighted
characteristics
which
included the existing high volumes of heavy commercial trucks
on this
route (in the vicinity of 10-15 percent heavy trucks), surrounding
land
uses that
are a mixture
of
industrial, commercial and residential, and road alignments are generally straight
and flat.
(10/09/02 Tr. at 58, 59.) Consistent with Mr. Miller, Mr. Coulter also testified that there was
one
limiting
factor concerning
the
north route, and that was
routing transfer trailers through the
Rt. 25/Dunham Road intersection and its existing level
of
service. (10/09/02
Tr. at
62.)
Mr. Coulter testified that
by
limiting
the
volume
of the Facility to 1,000 tpd, that the
Facility “impact in terms of truck generation on the Route 25-Dunham intersection would
minimize
the impact
on
existing traffic flow.” (10/09/02
Tr.
at
96, 97.) Based on his evaluation
of 1,000
tpd, Mr. Coulter testified that the “net effect as we look at impact
on the
intersection
in
terms
of level of service is that the
level
of
service
at Dunham and Route 25 at
the
existing
temporary traffic signal can remain essentially at existing levels.” (10/09/02 Tr. at
97, 98.)
He
testified that the north route “is suitable
for waste
transfer
truck routing,” and “that
there are
characteristics
of
Route 25 to the north
of the site and
West
Bartlett Road
which
may
make
it suitable for routing waste transfer vehicles.” (10/09/02
Tr.
at
135.)
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The Hearing Officer
noted
in his Findings that he did not find the south route to be
suitable. (Findings,
p.
23.) However,
he noted that Mr. Coulter’s proposed
alternative,
the north
route,
agreed with
Mr.
Miller’s testimony.
(Findings,
p.
24.)
The
evidence
presented on criterion
6
established that there were two routes that could
accommodate Facility traffic and minimize
impact on
existing traffic flows. The first was the
south
route preferred by Mr.
Miller,
and the second was the north route preferred by Mr. Coulter.
While Mr. Coulter did not agree that the south route minimized impact, Mr. Miller agreed that
the
north route was suitable, although preferring
the
south route.
There
was
no evidence to support
the
Walter Memorandum conclusion that all
existing
routes
were shown to be inadequate by expert
testimony.
To the contrary, the two experts who
testified and rendered opinions on criterion 6 each identified a suitable route.
While
they
disagreed on the south
route, they both agreed
that the
north route
was suitable. The
conclusion
in the
Walter Memorandum lacked any support in the record and is, in fact, squarely contradicted
by the
manifest weight
of
the expert testimony.
4.
Criterion 8
Criterion 8: “if the facility is to be
located in
a county
where
the county
board has adopted a solid waste management plan consistent with
the
planning requirements
of the
Local Solid Waste
Disposal Act or the Solid
Waste Planning and Recycling Act, the facility is consistent with that
plan” 415
ILCS 5/39.2
(a)(viii)
The eighth criterion requires a determination
whether
the Facility is consistent with
the
solid waste
plan of the county in which it is located. This criterion involves review of the
plan
language to determine whether the proposed facility is consistent
with
the plan. Land and
Lakes
Company v.
Randolph County, No. PCB
99-59, slip op.
at
3
1-32 (P.C.B. September 21,
2000).
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Strict compliance with the
plan is not
required.
City of Geneva
v.
Waste
Management
of
Illinois, Inc., No. PCB 94-58, slip
op.
at 22 (P.C.B. July 21,
1994).
Ms.
Sheryl Smith was the
only
witness
who
testified in these
proceedings regarding
criterion 8. No
other witnesses presented testimony or offered evidence to rebut Ms. Smith’s
testimony.
The Walter Memorandum argued that criterion 8
was
not met because
WMII did
not
address one item identified in
Figure
6.2 of the
Kane County Solid Waste Management Plan
(the
“Plan”) as being required for a transfer station
application, and therefore the Application
was not
consistent
with the Plan. Strict
compliance with a solid waste plan is not required.
The
applicant is required to demonstrate consistency
with the planning requirements of the county
plan. The
evidence in this record demonstrates that WMII substantially
complied
with
the
requirements of the Plan and is
consistent with the planning requirements identified in the Plan.
Ms.
Smith testified that she reviewed that
portion
of
the
Application
which contained
written responses to all of the requirements
identified
in Figure 6.2 of the Plan. (10/03/02 Tr.
at
60.) She
testified that she relied on the information
provided
by the
various consultants which
addressed
each of their individual reports and
believe that they provided information to answer
the
sections
of Figure 6.2 that related to their
specific criterion. (10/03/02 Tr. at 60.) She
testified
that her opinion was based on an
overall review of all the elements of the Plan, in
addition to
Figure 6.2, including “the methods that the
County intends
to
manage their waste
long-term, the
fact that they intend to rely
on
transfer stations, the fact that
there’s
not
sufficient
transfer
capacity or disposal capacity in the county,
and these elements taken together
are all
factors
that are looked at
when
I
make
a
determination as to whether or not .. .this application
is
consistent.”
(10/03/02 Tr. at 61,
62.)
Ms. Smith
testified
that
it was
her opinion
that
the
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364687.1
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Application
was not inconsistent
with
the
Plan if some
of the requirements
in Figure
6.2 were not
included. (10/03/02
Tr. at
63.)
The
Walter
Memorandum
argued that WMII did
not
develop
traffic characteristics
of
future
growth.
(Walter Memorandum,
p.
3.)
As stated
above
(See supra,
pp.
12-1
3), such
information
is neither necessary
to satisfy criterion
8, nor relevant to
the statutory
criteria.
Failure to
provide
information
that is either
not
required
by the statutory
language,
or
arbitrary,
does not cause
a siting
application
to be inconsistent
with the plan. A
county plan may
not
require, as
a
condition
of finding
plan
consistency, information
that is irrelevant
to the
statutory
criteria. Information
regarding
future traffic growth
is irrelevant to an evaluation
of
whether
criteria
6
or
8
have
been
met.
Thus, a
negative
finding
on criterion
8
cannot
be based
on
the
failure to
provide
information
that is irrelevant
to the statutory
criteria.
5.
Local
Ordinance
In yet another attempt
to establish support
for
its
argument
that the Application
did not meet the statutory
criteria,
the Walter Memorandum
alleged that WMII
failed
to meet
two requirements identified
in the Ordinance,
specifically
Section
28(a)(4)
regarding
identification
of zoning
and land uses five
miles from the property
boundary,
and Section
(3 l)(d)
regarding
identification of
all
locations
where
garbage trucks would
enter
and
exit the county.
(Walter
Memorandum,
p.
4.)
As
described
above
(See supra
p.
13),
compliance with
a local siting
ordinance is
not
required to satisfy the
statutory criteria. Even
if
it
were,
these requirements of
the Ordinance
are
arbitrary and bear no
reasonable
relationship
to any of
the statutory criteria.
The
requirement that WMII
provide a description
of land uses
and zoning within
a
five
mile
radius of the
Facility
is unreasonable and
not related
to
the evaluation of criterion
3. The
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“surrounding area” is the area that
encircles
and borders on all sides of the subject site.
It does
not include an area two to
five
miles
away. Providing
land use and zoning information for
a 78.5
square mile area is unnecessary to evaluate any impact to the area “surrounding” the subject
site.
Indeed, the
Hearing Officer found Mr. Larmert’s reports and testimony “to
be
in substantial
compliance with the Ordinance.”
(Findings,
pp.
17, 18.)
The requirement that WMII identify all locations where garbage trucks would enter
and
exit the county is
equally arbitrary. The Hearing
Officer
found “this objection
to be somewhat
artificial.
There is no way the applicant
can
know every
road into the County that a
waste
vehicle will travel. The applicant has
presented
an adequate, not perfect, study of this criterion
and has substantially complied
with the siting ordinance.” (Findings,
p.
24.)
III.
CONCLUSION
The County Board decision
denying
the Application was based on the legally and
factually
inaccurate Walter Memorandum,
to which WMII
had no opportunity to respond.
Hence,
the procedure by
which
the
County Board reached its decision was fundamentally
unfair,
and
the
result
was
a
legislative,
not
an adjudicative, decision.
The County
Board’s legislative decision rejected the findings of the Hearing
Officer
to
the extent
they
were inconsistent
with the Walter Memorandum. Consequently,
the County
Board
did not find that criteria 2, 3, 6
and
8
were met. However,
the manifest
weight
of the
evidence
presented
in the record established that criteria 2,
3,
6 and 8 were satisfied.
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For these
reasons,
the
Kane County Board
decision denying
site
location
approval should
be
reversed.
Respectfully submitted,
Donald
J. Moran
PEDERSEN &
HOUPT
161 North Clark
Street, Suite
3100
Chicago,
Illinois
60601
Telephone:
312/641-6888
ZEAGE7
T
One of its At meys
This
document
was
printed on recycledpaper.
ILLINOIS, INC.
364687.1
42