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Home My WebLink About05-170 Resolution No. 05-170 Revised RESOLUTION ADOPTING THE FINDINGS AND RECOMMENDED CONDITIONS OF THE HEARING OFFICER, AS AMENDED, AND GRANTING THE WASTE MANAGEMENT OF ILLINOIS, INC. REQUEST FOR SITING APPROVAL FOR A SOLID WASTE TRANSFER STATION AT THE APPROXIMATE 15 ACRE PARCEL LOCATED SOUTH AND EAST OF THE INTERSECTION OF GIFFORD ROAD AND BLUFF CITY BOULEVARD, ELGIN, ILLINOIS WHEREAS, on December 17, 2004, Waste Management of Illinois, Inc. (hereinafter "WMII")filed an application for local siting approval for a regional pollution control facility with the City of Elgin, for a solid waste transfer station proposed to be located at the approximate 15 acre parcel located approximately 3,500 feet south and 1,400 feet east of the intersection of Gifford Road and Bluff City Boulevard, Elgin, Illinois (hereinafter the "Subject Application"); and WHEREAS, pursuant to Resolution 05-04, adopted January 12, 2005, the City Council scheduled a public hearing on WMII's subject application for April 4, 2005; and WHEREAS, pursuant to Resolution 05-10, adopted January 12, 2005, the City Council appointed Attorney George Mueller as the Hearing Officer(hereinafter the "Hearing Officer") for such public hearing on the Subject Application; and WHEREAS, following proper notice thereof, the public hearing on the Subject Application was conducted on April 4, 2005; and WHEREAS, at the public hearing on the Subject Application WMII called five witnesses who testified on all nine of the statutory substantive siting criteria; and WHEREAS,the City of Elgin's independent review team consisting of consultants appointed by the City Council participated as a party in the public hearing including cross examining the witnesses of WMII; and WHEREAS, no members of the general public registered to participate during the public hearing; and WHEREAS,at the close of the public hearing a 30-day public comment period was available and no written comments were received from anyone other than the parties; and WHEREAS the Hearing Officer on May 18,2005 submitted the Hearing Officer's report to the City Council of the City of Elgin including the Hearing Officer's summary of proposed findings of fact and law; and WHEREAS,the Hearing Officer is of the opinion that the applicant WMII has demonstrated compliance with the nine statutory criteria in Section 39.2 of the Illinois Environmental Protection Act and the City of Elgin Pollution Control Facility Siting Ordinance and the Hearing Officer has made a recommendation for approval of the request for siting approval in the Subject Application filed by WMII subject to the findings and conditions in the Hearing Officer's report to the City Council; and WHEREAS, the record of proceedings for this matter including, but not limited to, the Hearing Officer's report to the City Council and the Hearing Officer's recommended findings and conditions has been submitted to the City Council for its consideration at its regular meeting on June 8, 2005. WHEREAS,the city Council has reviewed Subject Application and determined that Subject application is complete; and WHEREAS,the City Council has reviewed the record of proceedings and determined that the statutory criteria for siting a pollution control facility has been met, subject to the findings and amended conditions of the Hearing Officer. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, as follows: 1. That the foregoing recitals are found to be true and correct and are hereby incorporated as part of this resolution. 2. That the City Council of the City of Elgin, Illinois concurs with and adopts the findings and conditions of the Hearing Officer as set forth in the Hearing Officer's Report to the Elgin City Council and Summary of Proposed Findings of Fact in Law, a copy of which is attached hereto and made a part hereof in its entirety by this reference as Exhibit A, with the following exceptions: Condition 2.5 is hereby amended by deleting the introductory phrase therefrom which reads: "To the extent reasonably feasible,". Condition 6.7 is hereby amended to read as follows: "Condition 6.7: The paved area immediately in front of the transfer building shall be constructed of concrete, with specifications as approved by the City Engineer consistent with City ordinances, specifications and generally accepted engineering practices." 3. That the City Council of Elgin, Illinois has reviewed the Subject Application and determines that the Subject Application is complete in accordance with Section 9.33.100A of the City of Elgin Pollution Control Facility Siting Ordinance. 4. That the City of Elgin hereby grants the application for siting approval filed by WMII in the Subject Application for a solid waste transfer station subject to the findings and conditions adopted in the preceding paragraph 1 hereof and approves the site location set forth in the Subject Application for a pollution control facility in accordance with Section 39.2 of the Illinois Environmental Protection Act and the City of Elgin pollution control facility siting ordinance. 5. The City Clerk shall cause a certified copy of this Resolution,including the attached copy of the Hearing Officer's report to the City Council, to be forwarded to the Illinois Environmental Protection Agency. 5. This Resolution shall be effective upon its adoption in the manner provided by law. s/ Ed Schock Ed Schock, Mayor Presented: June 8, 2005 Passed: June 8, 2005 Omnibus Vote: Yeas: 7 Nays: 0 Recorded: June 9, 2005 Published: Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk E t.! L G 43q� pIl June 3, 2005 ( r ipl so Lu for N fu�� r: TO: Mayor and Members of the City Council FINANCIALLY STABLE CITY GOVERNMENT Olufemi Folarin, City Manager EFFIC IENT SERVICES. f AND QUALITY INFRASTRUC EURE FROM: William A. Cogley, Corporation Counsel ` SUBJECT: Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station PURPOSE The purpose of this memorandum is to submit to the Mayor and members of the City Council the record of proceedings including the hearing officer's report and a proposed resolution regarding the Waste Management of Illinois, Inc. application requesting siting approval for a proposed solid waste transfer station to be located on a 15 acre parcel south and east of the intersection of Gifford Road and Bluff City Boulevard. RECOMMENDATION It is recommended that the City Council adopt the proposed resolution adopting the proposed findings and conditions of the hearing officer, as amended, and granting siting approval for the proposed solid waste transfer station subject to the recommended findings and conditions. BACKGROUND The City and Waste Management of Illinois, Inc. entered into a host city agreement for a proposed solid waste transfer station to be located on a 15 acre parcel located approximately 3500 feet south and 1400 feet east of the intersection of Gifford Road and Bluff City Boulevard. On November 3, 2004 the City and Waste Management of Illinois entered into a first amended host city agreement regarding the proposed solid waste transfer station. On December 17, 2004 Waste Management of Illinois filed with the City its application requesting siting approval for the proposed solid waste transfer station. The City Council scheduled a public hearing on the application for April 4, 2005. The City Council also appointed Attorney George Mueller as the hearing officer to conduct such public hearing and appointed certain technical experts as the City's consultants to advise the City with respect to the application and evidence adduced at the public hearing. Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 2 The public hearing was conducted on April 4, 2005. Waste Management of Illinois presented its case. The City's consultants recommended a number of conditions on an approval of the proposed solid waste transfer station. No members of the public appeared at the public hearing or submitted any comments in the 30 day public comment period following the public hearing. Attached to this memorandum is a copy of the record of proceedings for this matter except for the application and the proof of notices. A complete copy of the application has previously been provided to the Mayor and members of the City Council. The entire record of proceedings is available at the City Clerk's Office. Such attached record includes, but is not limited to a summary of the application for site approval at Tab A, the City's First Amended Host City Agreement at Tab E, the exhibits introduced at the public hearing at Tab H, the hearing officer's report to the Elgin City Council filed by the Hearing Officer on May 18, 2005, at Tab M, Power Point slides incorporated into the hearing officer's report at Tab N and a summary of proposed findings in law filed by the hearing officer at Tab O. The hearing officer's report to the Elgin City Council includes the hearing officer's proposed findings and conditions on each of the nine statutory criteria. The Illinois Environmental Protection Act is provided for at 415 ILCS 5/1 et seq. Section 5/39.2 thereof is the statutory provision regarding local siting review for certain pollution control facilities including solid waste transfer stations. The City Council has adopted an ordinance providing for Chapter 9.33 of the Elgin Municipal Code entitled "City of Elgin Pollution Control Facility Siting Ordinance". The ordinance incorporates the criteria of Section 5/39.2 of the Illinois Environmental Protection Act and includes other procedural details concerning the filing and consideration of applications requesting siting approval for pollution control facilities. The siting approval procedures, criteria and appeal procedures provided in the Illinois Environmental Protection Act for new pollution control facilities are the exclusive siting procedures and rules and appeal procedures for such facilities. Local zoning or other local land use requirements are not applicable to such siting decisions. (415 ILCS 5-39.2(g)). Section 5/39.2(a) of the Illinois Environmental Protection Act provides that the City Council as the governing body of the City is the entity which shall approve or disapprove the application requesting siting approval for pollution control facilities including the subject proposed solid waste transfer station. Section 9.33.100 of the City's pollution control facility siting ordinance provides in part that after the close of the public hearing and after the time for the submittal of any public comment is expired the City Council shall consider the application. The City Council is to first determine whether the application is complete and includes all of the information and documents required to satisfy the City's local siting ordinance and the Illinois Environmental Protection Act. It is my recommendation that the City Council determine that the application is complete. If the City Council determines that the application is complete, the City Council shall evaluate the application and compliance with, and shall determine whether the proposed pollution control Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 3 facility satisfies that criteria in the Illinois Environmental Protection Act and Section 9.33100 of the City's local siting ordinance. In making its decision on the application the City Council shall base its decision on the record and whether the proposed facility would be in compliance with, and whether the proposed pollution control facility satisfies the criteria listed in Section 5/39.2(a) of the Illinois Environmental Protection Act and the City's local siting ordinance. Such criteria are as follows: 1. The facility is necessary to accommodate the waste needs of the area it is intended to serve; 2. The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; 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; 4. (a) For a facility other than a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100 year floodplain, or the site is flood-proofed; (b) For a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100-year floodplain, or if the facility is a facility described in subsection (b) of Section 22.19a of the Act, the site is flood-proofed; 5. The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; 6. The traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; 7. If the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; 8. The facility is consistent with the Solid Waste Management Plan adopted by the county in which the proposed site is located; and 9. If the facility will be located within a regulated recharge area, any and all applicable requirements specified by the Illinois Pollution Control Board for such areas have been met. The City Council may also consider as evidence the previous operating experience and past record of convictions or admissions of violations of the applicant (and any subsidiary or parent corporation) in the field of solid waste management when considering criteria 2 and 5 above. Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 4 The subject Host City Agreement between the City and Waste Management of Illinois does not require the City to provide local siting approval for the proposed solid waste transfer station but does provide for certain regulations regarding such a facility and a host benefit fee to be paid to the City in the event that the proposed solid waste transfer station is approved and operated. It is the hearing officer's opinion that the applicant has demonstrated compliance with the nine statutory criteria. The hearing officer is recommending that the City Council approve the application of Waste Management of Illinois for a new regional pollution control facility with the conditions as set forth in the hearing officer's proposed findings. The hearing officer's proposed findings and recommended conditions may be summarized as follows: On December 17, 2004 Waste Management of Illinois, Inc. filed an Application with the City of Elgin for site location approval of a new Regional Pollution Control Facility consisting of a waste transfer station southeast of the intersection of Gifford Rd. and Bluff City Blvd. The siting process is governed by 415 ILCS 5/39.2 and Chapter 9.33 of the Elgin Municipal Code. A public hearing was held on the Application on April 4, 2005, at which witnesses were called and examined and evidence was received. The public hearing was conducted in accordance with all applicable laws and ordinances and was fundamentally fair. The City received and considered written comments and submissions for an additional thirty days after the public hearing. The City Council has considered the Application, the exhibits admitted into evidence, the testimony of all the witnesses, all written comments received and the report of the hearing officer. The City Council's decision is based on the evidence. WMII has complied with all statutory notice requirements and the Elgin City Council has jurisdiction to consider the Application for Site Location Approval. The facility is necessary to accommodate the waste needs of the area that it is intended to serve. The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected subject to the following conditions: Condition 2.1: WM11 shall perform a subsurface investigation to assess soil conditions at the proposed facility. The applicant shall retain a qualified geotechnical, structural and/or foundation engineer(s) to assess the soil conditions, foundation and building structural components and certify that the conditions of the site are appropriate for a waste transfer station prior to waste receipt. Such a geotechnical and structural engineering assessment with appropriate certification by a professional engineer shall be submitted to the City at the building permit stage. Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 5 Condition 2.2: As part of the storm water permit application to the City, the applicant shall prepare a detailed design showing site grading, proposed industrial park grades, offsite detention pond grades and pipe calculations demonstrating that the proposed storm water management system can convey storm water as designed and is adequate to accommodate the designed flows. Condition 2.3: The operating plan submitted to IEPA shall indicate that the double lined tank will have a tank level indicator and will be routinely emptied at eighty percent (80%) capacity and inspected weekly. Condition 2.4: The facility shall segregate unauthorized waste materials and appropriately containerize them in DOT approved closed containers and such waste will be removed from the facility within twenty-four(24) hours as specified in the application. Condition 2.5: To the extent reasonably feasible, the facility will be constructed and operated in substantial conformity with the design and operational details contained in the application. Nothing in this condition shall be construed to require WMII to obtain LEED certification. 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, subject to the following conditions: Condition 3.1:A qualified wetland specialist shall design and oversee the installation and maintenance of the constructed wetland and provide the planting scheme and proposed maintenance schedule to the City. Condition 3.2: The litter control program for the loading bays, transfer station, fifteen (15) acre property and access routes will be implemented as described in the application and during the siting process and shall include continuous litter pick up by the facility operator during operating hours for litter emanating from the facility and its trucks within the public right-of-way between the facility and Route 20 and Bluff City Boulevard. The facility is located outside the boundary of the one hundred (100) year flood plane. The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents, subject to the following conditions: Condition 5.1: Applicant shall locate fire extinguishers throughout the facility as described in the application and design a fire suppression system for the Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 6 applicable NFPA hazard class, subject to final review by the City Fire Department. Condition 5.2: As part of its permit application to the IEPA, applicant will modify its operating plan to require that the rapid response contractor will be called in the event a spill occurs and the transfer station personnel are unable to completely contain and control the spilled material or if the spilled material enters the storm water management system. Condition 5.3: As part of its permit application to the IEPA, applicant will modify its operating plan to indicate that, at a minimum, refueling will take place upon a competent paved surface and will be subject to the rapid response notification requirements listed above in proposed Condition 5.2. The traffic patterns to and from the facility are so designed as to minimize the impact on existing traffic flows, subject to the following conditions: Condition 6.1: Applicant shall not begin actual waste transfer operations until a rated eighty thousand (80,000) pound road has been constructed between the facility entrance and Bluff City Boulevard, and the road has been approved by the City of Elgin or its designee, which may be the Illinois Department of Transportation. Condition 6.2: Parking of vehicles at the transfer station site, including empty roll-off container or packer trucks shall be limited to the parking areas described in the application. Condition 6.3: The applicant shall provide parking for handicapped individuals in accordance with local ordinance standards. Condition 6.4: The final facility plan sheets shall detail curved radii and pavement widths. All site geometrics shall be designed to accommodate the maximum sized design vehicles anticipated to use the site. Condition 6.5: The applicant shall ensure that the proposed pavements are adequately designed to carry the maximum loading of the vehicles that will be using the site. Condition 6.6: The applicant shall not allow vehicles larger than WB-62 vehicles to use the facility until it has demonstrated to the City that larger vehicles can safely execute all turning maneuvers required for ingress/egress and movement through the facility. Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 7 Condition 6.7: The paved area immediately in front of the transfer building shall be constructed of concrete, consisting of a minimum of thirty-four inches (34") of Portland cement concrete underlain by six inches (6") of aggregate. The facility will not be treating, storing, or disposing of hazardous waste. The proposed facility is consistent with the solid waste management plan of the County in which it is located. The proposed facility is not located within a regulated recharge area. A review of the hearing officer's report to the City Council along with the hearing officer's proposed Findings and Conditions reveals that the hearing officer has adopted virtually all of the City's consultants recommended conditions for approval. In a number of instances the hearing officer has revised these proposed conditions to require the referenced additional information be submitted to the City rather than the IEPA. With one exception, it is my opinion that the hearing officer's proposed Findings and Conditions are acceptable. Condition 2.5 of the hearing officer's recommended conditions should be amended by deleting the introductory phrase "To the extent reasonably feasible,". It is my recommendation that such phrase be deleted as it is my opinion that the applicant should be expected to construct and operate the proposed facility in substantial conformance with the design and operational details contained in its application. Attached is a proposed resolution which would adopt the hearing officer's findings with the revision to 2.5 noted in the preceding paragraph. The proposed resolution would also provide for the granting of siting approval for the proposed solid waste transfer station subject to such findings and conditions. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED A public hearing was conducted on April 4, 2005. A 30-day public comment period was also provided following such public hearing. No members of the public appeared at the public hearing or submitted any comments during the public comment period. FINANCIAL IMPACT In the event the proposed solid waste transfer station is approved, the City would receive a host benefit fee from Waste Management of Illinois pursuant to the First Amended Host City Agreement. Under such an agreement the City could realize an annual revenue stream from the host benefit fee of up to approximately$1,620,000. Actual revenue may vary should fluctuation occur in the volume of waste received at the facility. Host fees would be paid within ten days of each calendar quarter. Due to the possible fluctuation in fees, these revenues will be accounted for separately and delineated as such during the annual budget process. Submittal of the Record of Proceedings and Proposed Resolution and Findings Regarding the Waste Management of Illinois, Inc. Application Requesting Siting Approval for a Solid Waste Transfer Station June 3, 2005 Page 8 LEGAL IMPACT If the City Council refuses to grant or grants with conditions approval of the application requesting siting approval for the subject pollution control facility the applicant may, within 35 days after the date on which the City Council disapproves or conditionally approves siting, petition for hearing before the Illinois Pollution Control Board to contest the decision of the City Council. ALTERNATIVES 1. Adoption of the proposed resolution granting siting approval for the proposed solid waste transfer station as presented or with revised findings and conditions. 2, Adoption of a resolution denying siting approval for the proposed solid waste transfer station. Respectfully submitted for Council consideration. WAC/mg Attachment • THE CITY COUNCIL OF ELGIN, ILLINOIS IN THE MATTER OF: ) APPLICATION OF WASTE ) MANAGEMENT OF ILLINOIS, INC., ) FOR THE SITE APPROVAL FOR THE ) BLUFF CITY TRANSFER FACILITY IN ) THE CITY OF ELGIN, ILLINOIS, ) HEARING OFFICER'S REPORT TO THE ELGIN CITY COUNCIL I. Introduction On December 17, 2004, Waste Management of Illinois, Inc., (hereinafter "WMII") filed an Application for Site Local Approval for a regional pollution control facility with the Elgin City Council. Site location proceedings are governed by 415 ILCS 5/39.2 which section generally specifies the jurisdictional, notice and filing requirements for an Application, as well as the nine (9) substantive criteria which an applicant must satisfy. §39.2 of the Environmental Protection Act (hereinafter "the Act") also requires that at least one public hearing be held on the application no sooner than ninety (90) and no later than one hundred twenty (120) days after its filing. The construction, application and scope of §39.2 of the Act has been extensively litigated, both before the Pollution Control Board and in the Appellate Courts. Those decisions have held that local decision makers, such as the Elgin City Council, may also adopt their own rules and regulations for regional pollution control facility siting so long as the same are not inconsistent with the requirements of §39.2 and the requirements of fundamental fairness. EXHIBIT A The City of Elgin has, in fact, adopted its own rules and regulations by Ordinance No. G83-03, adopted September 24, 2003, which ordinance establishes a procedure for new pollution control facility site approval requests. This procedure is now set forth in Chapter 9.33 of the Elgin Municipal Code (hereinafter "the Code"). §9.33.050 provides that the Mayor, with the consent of the City Council, shall appoint a Hearing Officer to preside over the public hearing on the site location approval request. Pursuant to Resolution #05-15, adopted January 12, 2005, I was appointed to serve as Hearing Officer. I am a licensed attorney in the State of Illinois with extensive experience on behalf of applicants, objectors, and governmental bodies in §39.2 siting hearings. Pursuant to Resolution #05-14, adopted January 12, 2005, the City Council scheduled a public hearing on WMII's request for April 4, 2005, at the Hemmens Cultural Center. The City of Elgin had previously appointed an independent review team, consisting of expert professionals in various disciplines related to the siting and operation of regional pollution control facilities generally and waste transfer stations specifically. Prior to the public hearing, the independent review team registered as a participant and timely filed its written pre-hearing comments and findings. The fact that these pre-hearing comments and findings were filed and made available to the applicant before the public hearing was very helpful to the process in that it allowed the applicant's witnesses to specifically answer questions and address concerns raised by the independent review team. 2 On April 4, 2005, as scheduled, a public hearing was held on WMII's application. WMII called five (5) witnesses who testified on all nine (9) of the statutory substantive siting criteria. These witnesses were cross-examined by the independent review team's legal representatives. The independent review team participated as a party in the public hearing, but did not call any witnesses or present any evidence. This is significant and, as a result, the applicant's evidence is, in large part, unrebutted. Additionally, §9.33.070(g)(9) of the Code required me, at the close of the public hearing, to make findings concerning the credibility of witnesses and I found that all of the witnesses who testified were credible. No members of the general public registered to participate during the public hearing. Throughout the public hearing, I repeatedly asked, on the record, if any members of the general public wished to register to participate or make sworn or unsworn statements. No members of the general public registered, nor did any make any statements during the public hearing. At the close of the public hearing, I set a schedule for the parties (consisting of WMII and the City of Elgin independent review team) to submit proposed findings of fact. Additionally, I placed into the record notice that the City Clerk would receive and the City Council would consider written comment from any person received by the City Clerk or postmarked not later than thirty (30) days after the date of the public hearing. No written comments were received from anyone other than the parties. Each of the parties submitted 3 proposed findings of fact and thereafter, comments on the others' proposed findings. I considered these written comments and proposed findings by the parties to be more in the nature of argument than evidence. To the extent that these written comments contained assertions of fact, I was guided by §9.33.080(b) of the Code which states in pertinent part that "public comments may not be entitled to the same weight as testimony that is provided under oath and subject to cross-examination; while public comment shall be considered, it may be entitled to lesser weight." Lastly, §9.33.090(d)(6) of the Code directs that the Hearing Officer shall submit proposed findings of fact and recommendations. This report is in fulfillment of that directive. In preparing this report I considered the one volume application for siting approval filed by WMII, the pre-public hearing comments and findings of the independent review team, the testimony received at the public hearing, the exhibits admitted into evidence at the public hearing and the post- hearing written findings and comments propounded by both parties. Proposed Finding On December 17, 2004 Waste Management of Illinois, Inc. filed an Application with the City of Elgin for site location approval of a new Regional Pollution Control Facility consisting of a waste transfer station southeast of the intersection of Gifford Rd. and Bluff City Blvd. The siting process is governed by 415 ILCS 5/39.2 and Chapter 9.33 of the Elgin Municipal Code. A public hearing was held on the Application on April 4, 2005, at which witnesses were called and 4 examined and evidence was received. The public hearing was conducted in accordance with all applicable laws and ordinances and was fundamentally fair. The City received and considered written comments and submissions for an additional thirty days after the public hearing. The City Council has considered the Application, the exhibits admitted into evidence, the testimony of all the witnesses, all written comments received and the report of the hearing officer. The City Council's decision is based on the evidence. II. The Proposal WMII proposes a two thousand (2,000) ton per day waste transfer facility to be located on a fifteen (15) acre site within the Elgin Industrial Park, which has been previously approved by the City of Elgin. The center point of the facility is proposed to be located approximately thirty-five hundred feet (3,500') south, and fourteen hundred feet (1,400') east of the intersection of Bluff City Boulevard and Gifford Road. The facility will receive waste from packer, roll-off and other collection vehicles operating within the proposed service area, consisting of twenty-four (24) townships in Cook, DuPage, Kane, Lake, and McHenry Counties. The service area encompasses mainly Kane County. The proposed facility is in the east-central portion of the service area. The waste stream will consist of municipal solid waste, landscape waste and recyclables received from residential, commercial, and light-industrial sources. Hazardous waste will not be received. The large majority of the waste received will be municipal solid waste, which will be transferred to semi tractor-trailer vehicles for ultimate disposal in 5 remote landfills outside of the service area. All transfer operations will occur in an enclosed building. III. Jurisdiction §39.2 of the Act has strict and mandatory requirements for both pre-filing and pre-hearing notices to nearby landowners, members of the general assembly and surrounding communities. Compliance with these notice requirements has been held to be jurisdictional. Documentation regarding the pre-filing notices, including proof of service on all required recipients was offered and admitted as Applicant's Exhibit "2". Documentation regarding pre-hearing notices, including the required Certificate of Publication was offered and admitted as Applicant's Exhibit "3". These exhibits appear to be complete and in order. No challenge to the sufficiency of notices has been received. Proposed Finding WMII has complied with all statutory notice requirements and the Elgin City Council has jurisdiction to consider the Application for Site Location Approval. 6 IV. The Substantive Siting Criteria Criterion One -Whether the Facility is Necessary to Accommodate the Waste Needs of the Area That it is Intended To Serve Christina M. Seibert, an environmental scientist and solid waste planner testified that there is a need for the proposed facility. Ms. Seibert is well- qualified, both by education and experience, having assisted in the preparation of more than twenty-three (23) solid waste needs assessments. Ms. Seibert testified that a waste transfer capacity shortfall currently exists in the proposed service area and that this shortfall will only increase as population increases in the service area and as the remaining landfills in the service area close. The post-hearing comments of the independent review team question the economic feasibility of waste transfer from the southwest and southeast Kane County area and from the northwest McHenry County portion of the service area. Actually, there are no portions of northwestern McHenry County in the proposed service area, the only part of McHenry County included being three (3) townships at the southern edge of McHenry County. Regardless, the independent review team acknowledges in its post-hearing comments that the applicant has demonstrated a need for the proposed facility. 7 Proposed Finding The facility is necessary to accommodate the waste needs of the area that it is intended to serve. Criterion Two -Whether the Facility is So-Designed, Located and Proposed to be Operated that the Public Health, Safety and Welfare Will be Protected Devin Moose was the only witness who offered sworn testimony on this Criterion. To describe Mr. Moose's résumé in the field of solid waste engineering as impressive would be an understatement. Mr. Moose is a licensed professional engineer in Illinois and six (6) other states. He has been involved as a lead engineer in the siting and permitting of literally dozens of transfer stations throughout the State of Illinois. Mr. Moose described the design, construction, and operation of the facility from an engineering standpoint following the outline represented by his Powerpoint slides which were admitted into evidence as applicant's Exhibit No. "8". Because they provide an excellent and graphically based summary of the design, I have attached copies of Mr. Moose's Powerpoint slides to this report. A key component of transfer station design is the management of traffic flow within the facility to ensure that the vehicles which deliver and remove waste can safely and efficiently move into, through, and out of the facility. Mr. Moose describes, at length, how the design is optimized to accommodate this traffic flow. Because the proposed facility is relatively large, fifteen (15) acres, there is 8 ample physical space for the safe and timely movement of truck traffic, as well as for the staging and storage of vehicles as needed. A more detailed review of Mr. Moose's testimony is not necessary to this report as his conclusion that the facility design, location, and operational plan protect the public's health, safety, and welfare was persuasive and unrebutted. Additionally, the City of Elgin's independent review team conceded this point in its post-hearing proposed findings and special conditions. The City Council has the option to grant siting approval, to deny siting approval, or to grant siting approval, subject to certain conditions which it may impose. The independent review team recommends that the City Council approve the application, subject to seventeen (17) conditions, six (6) of which relate to this criterion. WMII, in its response to the independent review team's proposed approval conditions takes issue with some of them and indicates that it is willing to accept others "even if they are unnecessary or improper" (WMII Response, Page 2), if the City Council adds an additional condition, that WMII may, in the future, request and the City Council may approve modification of any of the conditions. WMII's suggestion is not well-taken. Facility siting decisions are, according to the statute and case law, intended to be final. Unlike a host agreement, which is a contract between two parties who may choose to modify its terms at their discretion, pollution control facility siting is a quasi-judicial proceeding where the public has a right to rely on the finality of the outcome. The local siting hearing has been held to be the most critical stage of the 9 pollution control facility siting process, as it represents the only opportunity for public comment on the proposed site. (Kane County Defenders, Inc. v. Pollution Control Board, 139 III.App.3rd at 593, 487 N.E.2d 743). Had members of the general public registered to participate during the public hearing, they would have had the right to appeal a decision granting siting approval. The fact that no members of the public in this particular case registered or made comments, does not justify deviation from the well-established rule that siting decisions, which may include special conditions, will be final. A significant number of the independent review team's proposed conditions would require the applicant to include certain additional information or representations in its application for an IEPA permit. WMII vigorously objects to this part of the proposed conditions, arguing that local siting issues should not become part of the IEPA permitting process, both because it will delay the process and because the IEPA is not equipped to address certain matters, such as road construction and storm water drainage, to mention just a few, which are uniquely within the expertise of the local siting authority. WMII's argument is persuasive. The definition of public health, safety and welfare is for the local decision maker to find. Additionally, while WMII does not cite any authority, the matter of a city improperly delegating or deferring certain factual determinations on the substantive criteria to the IEPA has been litigated and addressed by the Pollution Control Board, which has held that a city may not delegate or defer siting issues to the IEPA. (County of Kankakee v. City of Kankakee, PCB 03- 10 031, January 9, 2003). Therefore, conditions which require subsequent IEPA review and approval are not appropriate. The independent review team's first proposed special condition, condition 2.1, deals with the need for subsurface investigation, based upon the fact that the proposed site was previously operated as a sand and gravel quarry and has not yet been backfilled to grade. This geotechnical investigation obviously cannot even occur until the site is completely backfilled. In response to questions in this area, Mr. Moose testified, "but most importantly is that the geotechnical investigation which will occur after the filling is in place and after this approval is in place, will demonstrate the supporting characteristics of those soils, whatever they might be, and then the foundation can be designed around those supporting characteristics." (Transcript Pages 169, 170). Based upon the foregoing, a subsurface investigation is clearly needed before construction begins and is, in fact, contemplated by the applicant. WMII's proposed revised Condition 2.1 appropriately addresses this concern, while removing the improper delegation of structural stability determinations to the IEPA. This is a determination that can and should be made by the City of Elgin as part of the building permit process. Because the proposed site intends to use an offsite storm water detention basin which is intended to service other operations within the industrial park as well, and because the precise grades and elevations at the proposed site have not yet been determined, the independent review team has concerns that the applicant has not yet demonstrated that the proposed storm water management 11 system can convey storm water as designed. WMII's response is to suggest in the alternative that the applicant be required merely to obtain a City of Elgin storm water permit for the facility. Mr. Moose's testimony was, "currently we envision our tipping floor to be around 778, but that is part of, in our view, the overall development of the park itself. Clearly, all we need to do is get our discharge at an elevation higher than the pond, and that's, you know, fairly easy to do. The whole area as we saw from those earlier photos, is really an open palate. There is great flexibility to put that in virtually anywhere we want, because we are the first ones there." (Transcript Page 172). Accordingly, a demonstration by the applicant in the future with specific elevations and grades, that the storm water detention system will function as designed, is necessary. The independent review team's proposed Condition 2.2(a) is therefore appropriate with the modification that this information can be submitted to the City of Elgin and need not be part of the IEPA permitting process. WMII proposes, as part of its design, an engineered onsite wetland as its primary storm water management feature. The independent review team expresses concern about high levels of oil, grease, suspended solids, and winter deicing salts in storm water impacting the wetland. The independent review team proposes design modifications to reduce sheet flow runoff to the wetland and also oil and grit separators to pre-treat storm water prior to its discharge to the wetland. WMII responds that there is no evidence in the record that oil, 12 grease and other solids and chemicals in the water will be a problem and that the review team fundamentally misunderstands the purpose of wetlands, namely to remove pollutants from storm water. Although WMII argues, in its post-hearing submittal, that "there is nothing in the record to suggest that storm water must be pretreated or filtered before it reaches the wetland..." (WMII Response Page 7), storm water pre-treatment is, in fact, described in the application (Drawing D-11) and is described in the testimony of Mr. Moose. (Transcript Pages 181, 182). There is nothing in the record to suggest that WMII's existing design with respect to storm water pre-treatment and wetland management will not be adequate. WMII offers a revised special condition to address the independent review team's concerns, but since those concerns are not grounded in the record, the revised special condition is superfluous and unnecessary. In response to a pre-hearing comment from the independent review team pointing out that the application did not specify when the double lined storage tank on site would be emptied, Mr. Moose testified that an alarm would sound and the tank would be emptied when it reached eighty percent (80%) capacity. The independent review team proposes to incorporate this as a special condition and WMII offered no objection. The independent review team's Condition 2.3 is therefore appropriate. The independent review team expressed concerns in its pre-hearing comments regarding the temporary storage of unauthorized wastes, which are identified when they make their way to the tipping floor. Condition 2.4 proposes 13 that these wastes be segregated in appropriate Department of Transportation (hereinafter "DOT") closed containers. This is a sound suggestion and WMII does not object. This application contains a number of innovative design components and other features not often found in transfer station applications. The independent review team identifies some of these, including indoor truck tarping stations and the fact that WMII will investigate and pursue LEED certification for green buildings in proposing a condition that certification of siting approval is contingent upon the application submitted to the IEPA, being substantially consistent with the design presented in the siting application. WMII responds that certification of siting is a ministerial and not a discretionary act and that a condition such as this in essence allows the City to control the IEPA permitting process. WMII also correctly points out that the proposed condition is inherently vague as disagreements can arise over what constitutes "substantial consistency." WMII alternatively proposes a revised condition allowing the City to comment to the IEPA on its permit application. WMII's responses regarding this proposed condition's potential interference with and delay of the IEPA permitting process are legitimate. On the other hand, with the exception of LEED certification (for which WMII should be applauded rather than restricted), the City has a right to expect that the innovative design features which make this application attractive will be incorporated in the finished product. Luckily, a solution that satisfies the 14 concerns of both parties is available. Section 16 of the Host Agreement between WMII and the City provides that WMII will operate the transfer station in accordance with all applicable local laws, including the City's municipal code, rules, regulations and ordinances. Therefore, violation by WMII of a siting condition is actionable by the City as a violation of the Host Agreement. I am, accordingly, suggesting as Condition 2.5, a requirement that the facility will, to the extent reasonably feasible, be built and operated in substantial conformity with the design and operational plan set forth in the application. This does not entirely resolve WMII's concern that the term "substantial" is fatally vague, but at least it shifts the burden to the City, if it at some point chooses to pursue an action for breach of the Host Agreement, to prove that some action on the part of WMII was not in substantial conformity. It should be noted in this regard that Mr. Moose agreed on behalf of the applicant to introduce into the IEPA permit application, all of the LEED components that will be part of the LEED certification process, and that he agreed to use the emissions technology described in the application and that he agreed to indoor tarping. (Transcript Page 147). Proposed Findings The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected subject to the following conditions: 15 Condition 2.1: WMII shall perform a subsurface investigation to assess soil conditions at the proposed facility. The applicant shall retain a qualified geotechnical, structural and/or foundation engineer(s) to assess the soil conditions, foundation and building structural components and certify that the conditions of the site are appropriate for a waste transfer station prior to waste receipt. Such a geotechnical and structural engineering assessment with appropriate certification by a professional engineer shall be submitted to the City at the building permit stage. Condition 2.2: As part of the storm water permit application to the City, the applicant shall prepare a detailed design showing site grading, proposed industrial park grades, offsite detention pond grades and pipe calculations demonstrating that the proposed storm water management system can convey storm water as designed and is adequate to accommodate the designed flows. Condition 2.3: The operating plan submitted to IEPA shall indicate that the double lined tank will have a tank level indicator and will be routinely emptied at eighty percent (80%) capacity and inspected weekly. Condition 2.4: The facility shall segregate unauthorized waste materials and appropriately containerize them in DOT approved closed containers and such waste will be removed from the facility within twenty-four (24) hours as specified in the application. 16 Condition 2.5: To the extent reasonably feasible, the facility will be constructed and operated in substantial conformity with the design and operational details contained in the application. Nothing in this condition shall be construed to require WMII to obtain LEED certification. Criterion Three -Whether 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 Properties WMII called two (2) witnesses to testify on this criterion. Jay Christopher Lannert, a land use planner and landscape architect who has testified at thirteen (13) previous transfer station siting hearings described the existing and proposed land uses in the area of the proposed facility and opined that the facility will be consistent with surrounding land uses. As part of an industrial park, the compatibility of the proposed facility with the surrounding area is self-evident. Gary K. DeClark, a certified general real estate appraiser in eleven (11) states and with over twenty-seven (27) years of experience in real estate appraisal described the proposed facility and surrounding land uses as being similar to several other waste transfer stations in the metropolitan area where statistical, scientific studies had demonstrated that the existence of the transfer stations did not negatively impact property values. He used the approach of designating a target area adjacent to a transfer station and a control area, some distance away, containing similar properties and comparing rates of appreciation on resales between the control and target areas. 17 The City independent review team acknowledges that the criterion has been satisfied, but proposes two (2) conditions: one dealing with installation and maintenance of the constructed wetland; and the other dealing with litter control outside of the facility boundaries. WMII does not object to the wetland condition (Condition 3.1) and its inclusion is prudent. WMII does not object to Condition 3.2, addressing litter control, but does take issue with some of the wording, particularly the reference to "all downwind directions" as being somewhat vague. WMII proposes a revised Condition 3.2 which accomplishes the same thing, removes the offending language, and guarantees litter control along the entire right-of-way from the facility to Route 20. Proposed Findings 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, subject to the following conditions: Condition 3.1: A qualified wetland specialist shall design and oversee the installation and maintenance of the constructed wetland and provide the planting scheme and proposed maintenance schedule to the City. Condition 3.2: The litter control program for the loading bays, transfer station, fifteen (15) acre property and access routes will be implemented as described in the application and during the siting process and shall include continuous litter pick up by the facility operator during operating hours for litter 18 emanating from the facility and its trucks within the public right-of-way between the facility and Route 20 and Bluff City Boulevard. Criterion Four -Whether the Facility is Located Outside of the Boundary of the One Hundred Year Flood Plane or the Site is Flood Proofed Devin Moose, the Chief Design Engineer for this facility, testified that the entire proposed facility is outside the one hundred (100) year flood plane. As acknowledged by the independent review team, Mr. Moose provided a flood insurance rate map demonstrating proof of this criterion. Because the final base elevation of the facility has not yet been determined (see discussion on Condition 2.2) the independent review team has requested a condition that the applicant provide a facility grading plan and USGS datum demonstrating that the site elevation would be higher than the existing pond elevation as part of the IEPA permit application. Although not objected to by WMII, this condition is redundant and not necessary in light of Condition 2.2. Proposed Finding The facility is located outside the boundary of the one hundred (100) year flood plane. Criterion Five - The Plan of Operations for the Facility is Designed to Minimize the Danger to the Surrounding Area from Fire, Spills, or Other Operational Accidents Devin Moose was also the witness who testified regarding this criterion. Much of the testimony here overlapped the testimony on Criterion Two, however, 19 Mr. Moose did identify and the application contains all the required emergency response plans as contemplated in this criterion. The independent review team again concedes that this criterion has been met, but proposes three (3) conditions. WMII has no objection to Condition 5.1, addressing the location of fire extinguishers and design of a fire suppression system. Conditions 5.2 and 5.3 address spill containment and the refueling of vehicles with associated spill containment, respectively. The independent review team's proposed Condition 5.2 would require WMII to notify its rapid response contractor in the event that transfer station personnel are unable to entirely contain a spill within five feet (5') of where it first comes in contact with the ground. WMII responds that the five foot (5') requirement is arbitrary, unsupported by anything in the record and may be difficult to ascertain. They propose a revised condition which not only eliminates the five foot (5') requirement but completely eliminates the need to notify the rapid response contractor, unless the spill enters the storm water management system. I believe that WMII's proposed revision eliminated too much of the language in the independent review team's condition and I would, therefore, propose as a third alternative, a Condition 5.2 that deletes the five foot (5') reference but otherwise leaves the language of the independent review team's recommendation intact. WMII indicates that, with regard to vehicle refueling and rapid response requirements as set forth in Condition 5.3, they have no objection as long as the five foot (5') triggering requirement in the originally proposed Condition 5.2 is 20 deleted. Accordingly, the independent review team's Condition 5.3 is recommended as written. Proposed Findings The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents, subject to the following conditions: Condition 5.1: Applicant shall locate fire extinguishers throughout the facility as described in the application and design a fire suppression system for the applicable NFPA hazard class, subject to final review by the City Fire Department. Condition 5.2: As part of its permit application to the IEPA, applicant will modify its operating plan to require that the rapid response contractor will be called in the event a spill occurs and the transfer station personnel are unable to completely contain and control the spilled material or if the spilled material enters the storm water management system. Condition 5.3: As part of its permit application to the IEPA, applicant will modify its operating plan to indicate that, at a minimum, refueling will take place upon a competent paved surface and will be subject to the rapid response notification requirements listed above in proposed Condition 5.2. 21 t Criterion Six -Whether the Traffic Patters to or from the Facility Are So- Designed as to Minimize the Impact on Existing Traffic Flows The only testimony on this criterion was provided by David Miller, a civil engineer with over thirty-seven (37) years of experience in traffic and transportation engineering. Mr. Miller has managed or directed over 1,200 traffic impact studies and has provided expert testimony at fifteen (15) landfill and thirteen (13) transfer station siting hearings. Mr. Miller described the primary roadways in the area and the existing traffic conditions on each of them. Access to and from the site would be via two drives at the eastern end of the site accessing a new north/south road which has yet to be constructed, which road would enter Bluff City Boulevard from the south at a point approximately half way between Bluff City Boulevard's intersections with Gifford Road and Lake Street. Mr. Miller made traffic projections for the facility, described the road improvements, described the road improvements required in connection with the development of the facility (some of which are already in the planning stages as they are unrelated to development of the facility) and concluded that traffic at all affected intersections and on all affected roadways would continue to operate at acceptable levels. The independent review team does not dispute the results of Mr. Miller's traffic analysis; rather they propose five (5) conditions, four (4) of which are not 22 c objected to by WMII because they represent sound technical requirements and resolve some minor uncertainties in the application. These are therefore all incorporated in my Proposed Findings. The independent review team also proposes however that the applicant shall conduct a subsurface investigation and foundation evaluation for the access road consistent with Condition 2.1 and that this road shall be dedicated and constructed prior to the applicant submitting an operating permit to IEPA. WMII takes strong exception to this proposed condition. Although WMII does not make the point in its response, the length of time that the IEPA takes to review an operating permit can be substantial and there is absolutely no reason that construction of the new roadway be completed prior to submission of the permit application. WMII does correctly point out that it has no jurisdiction or ownership over the new roadway to be constructed and also that roadway engineering is completely beyond the purview and expertise of the IEPA. WMII also points out that construction of the new north/south roadway and approval of the same by the City is inherent in the entire development of the industrial park. I agree, but there is no harm in specifying a condition that an eight thousand (80,000) pound roadway will be completed and approved by the City before operations at the facility can begin. This is consistent with Devin Moose's representation that the new north/south road will be "developed and reviewed and approved by the City of Elgin." (Transcript Page 157). 23 Two additional evidentiary items require discussion. In response to a concern in the independent review team's pre-hearing comments that the applicant had not provided the turning template paths to demonstrate that transfer trailers can adequately access the site, Mr. Moose testified that the applicant had no intention of allowing vehicles larger than WB-62 vehicles to use the site. This addition to the application should be incorporated into a condition. Also, Mr. Moose testified that the paved area directly in front of the transfer station building itself is incorrectly depicted as flexible pavement but rather will be constructed in concrete. Mr. Moose acknowledged that there was some confusion in the application regarding pavements and some missing pavement design detail. (Transcript Page 164). I have proposed some conditions clarifying these minor points. Proposed Findings The traffic patterns to and from the facility are so-designed as to minimize the impact on existing traffic flows, subject to the following conditions: Condition 6.1: Applicant shall not begin actual waste transfer operations until a rated eighty thousand (80,000) pound road has been constructed between the facility entrance and Bluff City Boulevard, and the road has been approved by the City of Elgin or its designee, which may be the Illinois Department of Transportation. 24 Condition 6.2: Parking of vehicles at the transfer station site, including empty roll-off container or packer trucks shall be limited to the parking areas described in the application. Condition 6.3: The applicant shall provide parking for handicapped individuals in accordance with local ordinance standards. Condition 6.4: The final facility plan sheets shall detail curved radii and pavement widths. All site geometrics shall be designed to accommodate the maximum sized design vehicles anticipated to use the site. Condition 6.5: The applicant shall ensure that the proposed pavements are adequately designed to carry the maximum loading of the vehicles that will be using the site. Condition 6.6: The applicant shall not allow vehicles larger than WB- 62 vehicles to use the facility until it has demonstrated to the City that larger vehicles can safely execute all turning maneuvers required for ingress/egress and movement through the facility. Condition 6.7: The paved area immediately in front of the transfer building shall be constructed of concrete, consisting of a minimum of thirty-four inches (34") of Portland cement concrete underlain by six inches (6") of aggregate. 25 • Criterion Seven -Whether, if the Facility Will Be Treating, Storing or Disposing of Hazardous Waste, an Emergency Response Plan Exists for the Facility Which Includes Notification, Containment and Evacuation Procedures to be Used in the Event of an Accidental Release Devin Moose offered repeated, uncontradicted testimony that the facility will not be treating, storing or disposing of hazardous waste. Additionally, Mr. Moose identified various redundant procedures for load checking and waste screening to ensure that hazardous materials will not enter the facility and that, if they do enter the facility, they will be quickly identified and removed. Proposed Finding The facility will not be treating, storing, or disposing of hazardous waste. Criterion Eight -Whether, if the Facility is to be Located in the 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 Christina M. Seibert testified that the proposed facility needs to be consistent with the Cook County Solid Waste Management Plan (hereinafter "the Plan"). Ms. Seibert described the Plan and its most recent five (5) year update, which was completed in 2000. The Plan identified landfilling as the primary method of municipal solid waste disposal, but recognized that, due to the shortage of landfill space, transfer stations must be utilized. Accordingly, the Plan favors transfer stations as an economical method for access to remote landfills located outside the County. Ms. Seibert also indicated that the Plan 26 identified the private sector as the principal mechanism for providing needed transfer station capacity. The independent review team offered no comment. Accordingly, I would find that this criterion has been met. Proposed Finding The proposed facility is consistent with the solid waste management plan of the County in which it is located. Criterion Nine -Whether the Facility Will Be Located Within a Regulated Recharge Area Mr. Moose testified that this criterion does not apply because the only regulated recharge area within the meaning of that term, as used in §39.2 of the Act is a regulated recharge area in Peoria County, Illinois. Proposed Finding The proposed facility is not located within a regulated recharge area. V. Conclusion For the foregoing reasons and with the suggested conditions, I enthusiastically recommend that the Elgin City Council approve the application of Waste Management of Illinois, Inc., for a new regional pollution control facility. The City's independent review team is also to be complemented for its thorough and professional work. While I agree with Waste Management of Illinois, Inc., that it is inappropriate to condition items over which the applicant has no control, 27 I and while I find that adoption of many of the independent review team's proposed conditions in the form worded by that team, would constitute an illegal delegation of the City's siting responsibility to the IEPA, I nonetheless believe that the conditions with appropriate revisions and qualifications, represent a significant improvement to the application. 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A public hearing was held on the Application on April 4, 2005, at which witnesses were called and examined and evidence was received. The public hearing was conducted in accordance with all applicable laws and ordinances and was fundamentally fair. The City received and considered written comments and submissions for an additional thirty days after the public hearing. The City Council has considered the Application, the exhibits admitted into evidence, the testimony of all the witnesses, all written comments received and the report of the hearing officer. The City Council's decision is based on the evidence. WMII has complied with all statutory notice requirements and the Elgin City Council has jurisdiction to consider the Application for Site Location Approval. The facility is necessary to accommodate the waste needs of the area that it is intended to serve. The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected subject to the following conditions: Condition 2.1: WMII shall perform a subsurface investigation to assess soil conditions at the proposed facility. The applicant shall retain a qualified geotechnical, structural and/or foundation engineer(s) to assess the soil conditions, foundation and building structural components and certify that the conditions of the site are appropriate for a waste transfer station prior to waste receipt. Such a geotechnical and structural engineering assessment with appropriate certification by a professional engineer shall be submitted to the City at the building permit stage. Condition 2.2: As part of the storm water permit application to the City, the applicant shall prepare a detailed design showing site grading, proposed industrial park grades, offsite detention pond grades and pipe calculations demonstrating that the proposed storm water management system can convey storm water as designed and is adequate to accommodate the designed flows. Condition 2.3: The operating plan submitted to IEPA shall indicate that the double lined tank will have a tank level indicator and will be routinely emptied at eighty percent (80%) capacity and inspected weekly. Condition 2.4: The facility shall segregate unauthorized waste materials and appropriately containerize them in DOT approved closed containers and such waste will be removed from the facility within twenty-four (24) hours as specified in the application. • Condition 2.5: To the extent reasonably feasible, the facility will be constructed and operated in substantial conformity with the design and operational details contained in the application. Nothing in this condition shall be construed to require WMII to obtain LEED certification. 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, subject to the following conditions: Condition 3.1: A qualified wetland specialist shall design and oversee the installation and maintenance of the constructed wetland and provide the planting scheme and proposed maintenance schedule to the City. Condition 3.2: The litter control program for the loading bays, transfer station, fifteen (15) acre property and access routes will be implemented as described in the application and during the siting process and shall include continuous litter pick up by the facility operator during operating hours for litter emanating from the facility and its trucks within the public right-of-way between the facility and Route 20 and Bluff City Boulevard. The facility is located outside the boundary of the one hundred (100) year flood plane. The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents, subject to the following conditions: Condition 5.1: Applicant shall locate fire extinguishers throughout the facility as described in the application and design a fire suppression system for the applicable NFPA hazard class, subject to final review by the City Fire Department. Condition 5.2: As part of its permit application to the IEPA, applicant will modify its operating plan to require that the rapid response contractor will be called in the event a spill occurs and the transfer station personnel are unable to completely contain and control the spilled material or if the spilled material enters the storm water management system. Condition 5.3: As part of its permit application to the IEPA, applicant will modify its operating plan to indicate that, at a minimum, refueling will take place upon a competent paved surface and will be subject to the rapid response notification requirements listed above in proposed Condition 5.2. The traffic patterns to and from the facility are so-designed as to minimize the impact on existing traffic flows, subject to the following conditions: Condition 6.1: Applicant shall not begin actual waste transfer operations until a rated eighty thousand (80,000) pound road has been constructed between the facility entrance and Bluff City Boulevard, and the road has been approved by the City of Elgin or its designee, which may be the Illinois Department of Transportation. Condition 6.2: Parking of vehicles at the transfer station site, including empty roll-off container or packer trucks shall be limited to the parking areas described in the application. Condition 6.3: The applicant shall provide parking for handicapped individuals in accordance with local ordinance standards. Condition 6.4: The final facility plan sheets shall detail curved radii and pavement widths. All site geometrics shall be designed to accommodate the maximum sized design vehicles anticipated to use the site. Condition 6.5: The applicant shall ensure that the proposed pavements are adequately designed to carry the maximum loading of the vehicles that will be using the site. Condition 6.6: The applicant shall not allow vehicles larger than WB-62 vehicles to use the facility until it has demonstrated to the City that larger vehicles can safely execute all turning maneuvers required for ingress/egress and movement through the facility. Condition 6.7: The paved area immediately in front of the transfer building shall be constructed of concrete, consisting of a minimum of thirty-four inches (34") of Portland cement concrete underlain by six inches (6") of aggregate. The facility will not be treating, storing, or disposing of hazardous waste. The proposed facility is consistent with the solid waste management plan of the County in which it is located. The proposed facility is not located within a regulated recharge area. CERTIFICATE OF SERVICE I, George Mueller, certify that on the 18th day of May, 2005, a true and correct copy of the foregoing Hearing Officer's Report to the Elgin City Council and Summary of Proposed Findings of Fact and Law were forwarded to the following persons by placing same in a mailbox in Ottawa, Illinois, before 5:00 p.m., with proper first-class postage affixed thereon: Douglas B. Sanders Glenn C. Sechen BAKER & McKENZIE LLP SCHAIN, BURNEY, ROSS One Prudential Plaza & CLINTON, LTD. 130 East Randolph Drive 222 N. LaSalle Street, Suite #1910 Chicago, IL 60601 Chicago, IL 60601 (312) 861-8000 - Telephone (312) 861-2899 - Facsimile Ai .L! G r • ' .( MU' LER, P.C.