ILLINOIS POLLUTION CONTROL BOARD
July 16,
1987
PETER VALESSARES and
)
EDWARD F.
HElL,
)
)
Petitioners,
RICHARD
L.
COOPER, PETER
)
COOPER and TOBEY COOPER,
)
Intervenors,
v.
)
PCB 87—36
THE COUNTY BOARD OF KANE
)
COUNTY,
ILLINOIS, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
Respondents.
THOMAS W.
MCNAMARA, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
PETITIONERS;
DAVID
R. AKEMANN, WILLIAM
F. BARRETT AND PATRICIA JOHNSON LORD,
ATTORNEYS-AT-LAW, APPEARED ON BEHALF OF KANE COUNTY STATE’S
ATTORNEY;
DONALD J. MORAN, ATTORNEY—AT—LAW, APPEARED ON BEHALF OF I4ASTE
MANAGEMENT;
AND
RICHARD COOPER, APPEARED PRO SE, ON BEHALF OF INTERVENORS.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter comes to the Board on a March 17,
1987, Petition
for Review and Reversal of County Board Decision. That petition
was filed by Peter Valessares
(hereinafter “Valessares
or Mr.
Valessares”), and Edward
F. Heil
(hereinafter “Heil
or Mr.
Heil”).
The petition challenges a decision by the County Board
of Kane County (hereinafter “Kane County”) which granted site
location suitability approval to Waste Management of
Illinois,
Inc.
(hereinafter “Waste Management”).
The proceeding involves
local government review of requests to site
a new regional
pollution control facility under what
is commonly known as the
SB—l72 process.
That process
is more specifically defined
in
the
Environmental Protection Act (hereinafter “the Act”)
at Sections
3.32,
39(c),
39.2 and 40.1.
On April
24,
1987,
Richard
L.
Cooper,
for himself and on
behalf of his minor grandchildren,
filed
a Petition to Intervene
79.106
—2—
(hereinafter
“the Coopers
or Mr. Cooper”).
The Coopers sought
intervention to oppose site approval. That intervention was
granted by the Pollution Control Board on April
30,
1987.
Pollution Control Board hearings on this matter were held May 14,
1987 and May
22,
1987.
Final Briefs were filed
by Valessares and
by Heil on June 1,
1987, and by the Coopers on June 1,
1987.
Response briefs were filed by Kane County on June
5,
1987, and by
Waste Management on June
5,
1987.
This proceeding arises from
a desire by Waste Management to
expand an existing sanitary landfill
in Kane County.
Waste
Management currently operates Settler’s Hill Sanitary Landfill
for Kane County,
Illinois.
The landfill
is primarily located
in
unincorporated Kane County.
The facility
is
a sanitary landfill
site which accepts municipal wastes and selected non—hazardous
special wastes.
The current permitted acreage of the site consists of 150
acres.
Of this amount,
101 acres are used for disposal area and
19 acres are used for
a stormwater retention area.
The remaining
approximate 30 acres are used for buffer and access areas.
Twenty—seven acres of the 150—acre existing site are located
in
the City of Geneva.
There will be no increase in refuse disposal
capacity
in this 27 acre area under
the proposed expansion.
The
remaining acreage
of the existing site will have an increase in
disposal capacity.
Waste Management is proposing to expand the Settler’s Hill
Sanitary Landfill to include an additional 141 acres of land.
Of
this amount,
78 acres,
all within unincorporated Kane County,
will be used for the actual disposal of solid waste.
The
remaining acreage will
be used for buffer areas, access roads and
drainage.
The total acreage that will
be used for actual waste
disposal, including the existing permitted acreage and proposed
expansion acreage, will be 179 acres.
The new facility
is known
as “Settler’s Hill II”.
On August
28,
1986, Waste Management served
a Notice of
Application on adjacent landowners and members of the General
Assembly by registered mail.
On that same date,
a Notice of
Application was published in a newspaper of general circulation
in the area.
On September 17,
1986,
the Request for Siting
Approval was filed with Kane County.
On December
4,
1986,
Kane
County prepared
a Notice of Hearing which was published in a
newspaper of general circulation and served on members of the
General Assembly.
On December
18,
1986,
a public hearing was
held before the Executive Committee of the Kane County Board.
That hearing
lasted one day and generated approximately 150 pages
of transcript.
On February
5,
1987,
the Executive Committee of
the Kane County Board recommended that site location suitability
be approved.
On February
10,
1987,
Kane County passed Resolution
87—33, granting site location suitability approval with
conditions.
79-107
—3—
This proceeding presents three types of issues for Board
resolution.
First, Waste Management has challenged the standing
of the Petitioners to bring this appeal.
Second,
there are
issues relating
to the fundamental fairness of the proceedings
below.
Third,
there are issues about whether
the proposed
facility meets
the six statutory criteria for approval.
STANDING
On April
7, 1987, Waste Management filed a Motion to Dismiss
the Petition for Review; that motion asserts that Valessares is
not so
located as
to be affected by the proposed facility and
that Heil did not participate in the public hearing conducted by
Kane County.
On April
15,
1987, petitioners responded asserting
that Valessares
is so located as to be directly and adversely
affected, and that Heil “sufficiently participated
in the public
hearing”.
By Order of April 16,
1987,
the Board requested briefs
on several issues.
After reviewing the April
27,
1987 briefs,
the Board concluded:
Waste Management’s motion
to dismiss
Hell and
Valessares is denied.
It
is apparent from the
motions and
briefs
that the
issues raised in-
volve mixed questions of
law and fact.
While
the parties provided
a limited stipulation
of
facts
in order
to dispose of these issues,
the
factual
record
before
the
Board
is presently
inadequate.
The issue of Heil’s participation
is
in
factual
dispute
regarding
both
degree
and effect
and
could
be
intertwined
with
the
fundamental
fairness of the hearing procedure,
in
light
of
the
hearing
officer’s
statements
on “participation”
(R.,
6,
7,
123,
124).
The
issue
regarding
the
effect
of
the
proposed
facility
on
Valessares
is
almost
exclusively
factual.
Waste
Management
speculates
as
to
Valessares ability
to make
a requisite factual
showing.
These
factual
issues
should
be
addressed
at
the
scheduled
Pollution Control
Board hearing.
Waste Management is at liberty
to
renew
its
motion
to
dismiss
after
an
opportunity
to
develop
a
sufficient
factual
record
has
been
afforded.
(Order,
April
30,
1987)
On May 28,
1987 Waste Management filed
a Supplemental Motion to
Dismiss the Petition
for Review.
Valessares and Heil replied
to
the motion on June
5,
1987.
The Act provides the procedures
for regional pollution
control facility siting approval, and establishes the elements
for standing
to appeal.
Section 40.1
(b)
provides,
in relevant
part
79-108
—4—
If
the county board
or
the governing body of
the
municipality
as
determined
by
paragraph
(c)
of Section 39 of this Act, grants approval
under
Section
39.2 of
this Act,
a third party
other
than
the applicant
who participated
in
the
public
hearing
conducted
by
the
county
board
or
governing
body
of
the municipality
may
petition
the
Board
within
35
days
for
a
hearing
to contest the approval of the county
board
or
the governing body of the municipal-
ity.
Unless
the
Board
determines
that
such
petition
is duplicitous
or
frivolous,
or
that
the
petitioner
is
so
located
as
to
not
be
affected by
the proposed
facility,
the Board
shall hear the petition
in accordance with the
terms
of
subsection
(a)
of
this Section
and
its procedural rules governing denial appeals,
such
hearing
to
be
based
exclusively
on
the
record before the county board
or the govern-
ing
body
of
the municipality.
The burden
of
proof shall
be on
the petitioner.
The county
board
or
the governing body of the municipal-
ity
and
the
applicant
shall
be
named
as
co—
respondents.
Thus,
third parties have standing to appeal
if:
(1)
they
participated
in the public hearing conducted by the County;
(2)
the petition
is not duplicitous or frivolous; and
(3)
they are so
located as
to
be affected by the proposed facility.
These
elements have not been explored by the appellate courts
in the
SB—l72 context.
These elements all involve mixed issues of fact
and law.
It is also likely that the disposition of
these issues
will have an impact on the manner
in which future hearings will
be conducted by local governments.
Heil argues that filing
a written comment after the public
hearing
is adequate “participation”
to confer standing to appeal;
the Board disagrees.
The statutory language provides that a
third party may petition for review
of site approval if they,
“participated in the public hearing
conducted by the county.”
By
its plain language, this statutory phrase limits the universe of
potential petitioners
to those persons who physically attended
the public hearing or were present by a duly authorized
representative.
The Act uses the terms “public hearing” and
“public comment” in different contexts within Section 39.2, which
provides the relevant procedures
for county board action.
Appeal
rights established
in Section 40.1(b)
only use the term “public
hearing.”
Consequently,
the Board holds that simply submitting a
public comment after the close of the public hearing does not
constitute an adequate basis
for standing
to seek review.
Heil’s
arguments that he participated
in the manner prescribed by the
79-109
—5—
Hearing Officer
(C.B.H.,
pp.
6,
7,
123,
124)
are misplaced.
The
Act defines standing to petition for review of county board SB—
172 proceeding.
The Hearing Officer lacks authority to override
the statutory language which requires participation at the public
hearing.
Attendance at the public hearing
(in person or by an
authorized representative)
is a necessary and adequate
prerequisite
to petition for review.
The Board is painfully aware of the difficulties faced by
county boards and other
units of
local government
in conducting
these public hearings.
Past and present SB—l72 cases brought to
this Board have involved public hearings which:
(1) had hundreds
of interested citizens
in attendance;
(2)
had thirty—one days of
hearings;
or
(3) had hearings which lasted
until 1:30 a.m.
in
small cramped quarters.
These difficulties arise in proceedings
for which the Act sets stringent time deadlines.
In such cir-
cumstances,
the desire of interested citizens to “participate” in
a manner which preserves their appeal rights may occasionally
appear
to conflict with the desire of the hearing authorities to
ensure that the hearing does not become unmanageably large in
terms of the number
of people asking questions or making state-
ments.
To avoid confusion,
the Board
feels
it
is appropriate
to
address this issue with particular clarity.
The Act provides two processes for the development of new
regional pollution control facilities.
The first is the SB—l72
process which
is the subject of this proceeding.
The second
process
is found
in Section 39.3.
By evaluating and comparing
the two processes, the Board believes additional insight can be
gained on what the General Assembly intended by the term
“participated
in the public hearing.”
At the time it was adopted by the General Assembly, Section
39.3 applied
to requests to the Illinois Environmental Protection
Agency
(“Agency”)
for
a permit to develop a new regional
pollution control facility for the disposal of hazardous waste.
That process provides
for notification to the public and
government officials, the opportunity for
a public hearing
conducted by the Agency,
a final decision, and (pursuant to
Section 40(c))
an appeal
to this Board.
The process under
Section 39.3
is not only similar
to the process under Section
39.2 (the SB—l72 process),
the Act specifically allows the
hearings to be conducted jointly. Section 39.3
(e)(3).
However,
the Section 39.3 process provides substantially more formalized
mechanisms
for citizen involvement and standing
to appeal to this
Board.
In order
for a third party to become involved
in
a public
hearing held by the Agency under
Section 39.3,
they must formally
petition the Agency to intervene under Section 39.3
(d):
Within sixty days after the date of
the Agency
notice
required
by
subsection
(c)
of
this
Section,
any
person
who
may
be
adversely
79-110
—6—
affected
by
an
Agency decision
on
the permit
application may petition the Agency
to inter-
vene
before
the
Agency
as
a
party.
The
petition
to
intervene
shall
contain
a
short
and plain statement identifying the petitioner
and
stating
the
petitioner’s
interest.
The
petitioner
shall
serve
the petition upon
the
applicant
for
the permit
and
upon
any
other
persons
who
have
petitioned
to
intervene.
Unless the Agency determines that the petition
is
duplicitous
or
frivolous,
it
shall
admit
the petitioner as a party.
After
the Agency makes its final decision, petitions for review
can be filed with this Board only by individuals who were granted
status
as a party.
Section 40
(C).
In contrast, the SB—l72 procedures do not mandate petitions
to intervene or admission as a party as necessary prerequisites
to filing a petition for review with this Board.
Since
the
General Assembly specifically required petitions to intervene and
full party status as an element of standing to appeal under
Section 39.3 and did not require those actions under SB—l72,
the
Board concludes that “party” status at the county board hearing
is not
a necessary element for standing to file
a petition for
review.
The SB—l72 procedures only require individuals
to
“participate” in the county board hearing.
Black’s Law
Dictionary defines “participate” as:
PARTICIPATE.
To
receive
or
have
a
part
or
share
of;
to partake of;
experience
in common
with others;
to
have
or enjoy a part or share
in
common
with
others;
partake;
as
to “par-
ticipate”
in
a discussion.
To take a part in;
as
to participate
in joys
or
sorrows.
Bew
v.
Travelers’
Ins.
Co.,
95
N.J.L.
533,
112
A.
859,
860,
14 A.L.R.
983.
To take equal shares
and
proportions;
to
share
or
divide.
6
Ch.
696.
Participate
in
an
estate.
To
take
as
tenants
in
common.
28
Beav.
266.
(Black’s
Law Dictionary,
1275
(4th ed.
1968))
This definition, especially the “experience in common with
others”
,
is sufficiently broad
to cover
those individuals who
take the time and effort to attend the public hearing and listen
to the testimony, even
if they do not ask questions or make
statements on the record.
For these reasons the Board holds that
personal attendance at
a county board hearing
is adequate
participation
to meet this element of standing.
79-111
—7—
The question of whether Mr.
Heil participated
in the public
hearing was explored at his deposition (the deposition was
admitted at the PCB hearing
(P.C.B.H.,
p 88)):
Questioning
of Mr.
Heil by Mr. Moran)
Q
Did you attend that meeting?
A
No, sir.
*
*
*
Q
Did
you
instruct
anyone
to
appear
on
your behalf at the hearing?
A
Yes.
Q
Who did ask to appear on your behalf?
A
My attorney.
Q
Who
is that?
A.
Mr. McNamara.
Q
Did you request anyone else
to appear
in
your behalf?
A
No.
*
*
*
Q
...did
you
intend
to
object
or
send
anyone
to
object
in
your
behalf
to
any
of the six statutory criteria?
A
Yes.
Do
you
know which
of
the
six statutory
criteria?
A
My attorney handled
it.
No,
I don’t.
Q
Okay.
Did you
instruct your attorney
to
retain
any
expert
witnesses
to
testify
with respect
to the siting application?
A
I
did
not
instruct
him
to
retain
any
expert
witnesses.
I
did
not
instruct
him not
to,
I
instructed
him
to
act
on
my behalf.
(Deposition Transcript,
pp.
31—34)
79-112
—8—
Consequently,
the Board finds that Mr. Heil did not attend the
public hearing
in person.
The question of whether Mr. Heil was
represented at the Kane County public hearing must be viewed
in
light of the transcripts and evidence from that hearing.
At the
beginning of the hearing, the hearing officer asked
for the entry
of appearances:
HEARING OFFICER AKEMANN:
Are there any
other
attorneys
of
record
that
wish
to
identify
themselves
and
enter
their
appearances today?
MR.
MC NAMARA:
Thomas
W. McNamara
and
Sandra Brown from
the firm of Jenner
& Block,
One
IBM
Plaza,
Chicago,
representing
Peter
Valessares,
V—A—L—E—S—S—A—R—E—S.
(C.B.H.,
p.
12)
Mr. McNamara did, however, mention Mr. Heil’s name during closing
arguments:
MR.
MC NAMARA:
May
I proceed?
HEARING OFFICER AKEMANN:
Yes.
MR.
MC
NAMARA:
I
represent
Peter
Valessares,
who
has
been
a
resident
of
Kane
County
for
the
past
nine
years.
He’s
a
resident of the City of
St. Charles.
He does
not
live
in
immediate
proximity
to
the
landfill,
but
he
is
an
interested
and
concerned citizen of the County.
He
objects
to
the
proposed expansion
of
the Settlers
Hill
Landfill.
From
our
review
of
the
application,
it
appears
that
the
existing
Settlers
Hill
Landfill
has
an
estimated
life
of
nine
years,
based upon
its
present acceptance of 1,400,000 cubic yards
of
refuse per year.
*
*
*
I
would
urge
the
Board
to
get
an
independent
appraisal
of
its
value
before
any
deal
is
negotiated
with
Waste
Management
or
any other party.
79.113
I
represented
Edward
F.
Heil,
the
former
owner
of
E
&
E
Hauling,
Inc.,
which
operates
the
Mallard
Lake
Landfill.
Mr.
heil
is
experienced
in
the
landfill
business,
and
he
advises me that any landfill operator would
be
willing
to pay
royalties
of
at least
50 per-
cent more
than
S~aste Management
is
presently
paying
and would
still
be able
to make a very
handsome profit.
(C.B.H.,,
pp.
126-128)
In addition,
Mr. McNamara introduced
a newspaper article at the
public hearing which mentions both paste Management and Mr.
Heil
(C..B.H., Valessares Ex.
2).
Throughout the proceeding, Waste
Management asserted that Mr. Heil was not represented
at the
hearing.
At no point did Mr.
Heil assert that he was actually
represented
at the public hearing.
These
facts do not demon-
strate that Mr.
Heil was represented
at the public hearing.
In summary, the Board
finds that Mr.
lieu
did not attend
and
was not represented at the public hearing conducted by Kane
County.
Consequently the Board finds that Mr. Heil has not
“participated in the public hearing conducted by the county”, and
that Mr.
lieu
lacks
standing
to appeal
the decision of Kane
County to this Board.
Accordingly, Waste Management’s motion
to
dismiss
Mr.
heil
is granted.
The second element of standing
is that the petition for
review not be frivolous or duplicitous.
This Board has
consistently held that
a petition
is frivolous
if it
seeks reliet
this Board
is not empowered
to grant, and a petition
is
duplicitous
it the same controversy
is pending
in another forum.
Kenneth
& Libby McNeil
v. Continental Grain, PCB 86—44, April
10,
1986;
Patrick Brandle et al.
v. Donald Ropp, PCB 85—68, June 13,
1985; WIPE v. PC~,55 Ill.App.3d
475
(First District, 1977).
Here,
the petition seeks
to have the county board decision
reversed.
Since
this Board
has
the statutory authority
to
reverse the Kane County decision, the petition is not frivolous.
There
is
no assertion that this controversy
is pending
in another
forum.
Therefore,
the petition
is not duplicitous.
The last element of standing
is whether
the petitioner
is
“so located
as
to be affected by the proposed facility”.
Waste
Management asserts
in
their motion
to dismiss that Mr. Valessares
is not so located
as
to be affected by the facility because
:
(1)
he does not
live within
400 feet of the proposed facility and
is
therefore not entitled
to statutory notice,
and
(2)
he does not
live within
the area intended
to be served;
the area impacted by
public health safety
and welfare concerns; the “surrounding
area”,
as that term is used
in Criteria Nos.
3 and
5;
or the area
impacted by traffic.
Thus,
he
is not impacted under
any of the
statutory factors
for decisionmaking.
79-114
—10—
In response,
Mr. Valessares asserts that he
is so located as
to be affected and that Waste Management has waived objection to
Mr. Valessares standing by failing to object at the Kane County
hearing.
There
is substantial law holding
that the waiver rule
applies
in Illinois, applies
to the issue of standing, applies to
Pollution Control Board review of proceedings below and applies
to the SB—172 process.
Within the context of today’s proceeding,
the waiver rule would preclude raising
a defense to standing for
the first
time before this Board if
it could have been raised at
the county board hearing below.
In Village of Hillside
v. John Sexton Sand and Gravel,
113
Ill.App.3d 807,
447, N.E.2d 1047
(First District, March
31,
1983),
the court held:
We
find
it unnecessary
to review further
the
arguments
presented
challenging
Sexton’s
standing
to
apply for
and receive
transfer of
Edison’s permits,
or
the new supplemental de-
velopment
permit.
The
issue
of
Sexton’s
standing
was
not
raised
by
objection
before
the Agency
hearings,
and we
hold,
therefore,
that plaintiff has
waived
this
issue.
A de-
fense
not
presented
in
the
administrative
hearing
may
not
be
raised
in
the
court
on
review
or
upon
appeal.
(Robert
S.
Abbot
Publishing
Co.
v.
Annunzio
(1953),
414
Ill.
559,
112 N.E.2d
101;
Environmental Protection
Agency
v.
Pollution
Control
Board
(1976),
37
Ill.App.3d
519,
346
N.E.2d
427;
Gordon
v.
D~partmentof Registration
& Education (1970),
130
Ill.App.2d
435,
264
N.E.2d
792.)
This
rule
is
based
on
the
requirement
of
orderly
procedure
and
the
justice
of holding
a
party
to the results of his own conduct where other-
wise
a
party would
surprise
his opponent
and
deprive
him
of
an opportunity
to contest
the
issue
in the administrative hearing.
(Robert
S. Abbott Publishing Co.)
A similar result was reached
in Mathers v. Pollution Control
Board,
107 Ill.App.3d 729,
438 N.E.2d 213
(Third District,
1982).
Mathers concerned an Agency denial of
a landfill permit
requested by Donald J.
Hammari.
On Appeal
of the Agency decision
to the Pollution Control Board, the Board granted intervention to
various parties prior to a rehearing over certain objections
raised by Hamxnan.
The Board’s decision was appealed to the Third
District and Hamman again challenged the intervenors standing:
79-ii~
—11—
Hamman
has
moved
to
strike
and
dismiss
the
initial
brief
submitted
by
the
Township
of
Wheatland,
Lampton,
and
Pentzien
and
to dis-
miss
the
three
from
this
appeal.
•He
argues
that the township never petitioned
for inter-
vention at the administrative
level,
and that
the latter
individuals have not shown how they
would
be
adversely
affected
by
the
Board’s
order.
In
their
reply brief,
all appellants
except
Greenberg
respond,
inter
alia,
that
these
arguments have been waived as they were
not
advanced
at
the
administrative
level.
Hamman,
in
his
supplemental
brief,
responds
that
he
could
not have
known the township was
claiming
intervenor’s
status
until
it
filed
its brief
in this court, and that Lampton and
Pentzieri
did
not
petition
to
intervene
in
a
timely
fashion.
This
prompted
the
second
motion
taken
with
the
case.
All
appellants
except
Greenberg
moved
to
strike
Hamman’s
supplemental
brief,
contending,
inter
alia,
that while
the
timeliness
issue was
raised at
the administrative level,
it was not raised at
the time
of Hamman’s
initial objection to the
individual intervenors on the ground that they
were not adversely affected.
(id., at 216)
The
court considered the standing issues which could not have
been raised below and the standing issues which had been raised
in a timely manner below.
The court declined ruling on the
standing issues which could have been raised
in
a timely manner
below but were not raised:
As
for
Lampton
and
Pentzien,
we
find
Hamman’s
objection
to
their
intervention
at
the
administrative
level
on
the
basis
of
untimeliness
to
be waived
in this court as
it
itself was untimely.
(id., at 217)
The waiver rule has also been considered by the appellate courts
in reviewing SB—l72 proceedings regarding issues raised on appeal
but not raised at the county board hearings.
E
& E Hauling v.
Pollution Control Board
,
116 Ill. App.
3d 586
(Second District,
June
15, l983).(Hereinafter
“E
&
E
#1”)
E
& E Hauling, Inc.
v.
IPCB,
107 Ill.
2d 33
(l985)(Hereinafter “E
& E
#2).
Concerned
Citizens Group
v.
Pollution Control Board
,
Slip Opinion, Case
No.
5—85—0383,
(Fifth District, April
29,
1987).
The Board believes this represents an appropriate standard
for our review of SB—l72 proceedings; where an issue could have
been raised at the county board hearing and
it was not raised,
the
issue may not be raised
for the first time on review by this
Board.
79-116
—12—
The question then becomes whether Waste Management could
have raised a timely objection to Mr. Valessares standing at the
hearing before the county board.
The Board believes that such
action was not possible.
Waste Management’s primary argument is
the Mr. Valessares
is not “so located as to be affected”.
That
language comes from Section 40.1
(b)
of the Act which provides
guidance on who may appeal county board determinations to this
Board.
Section 40.1
(b) does not provide standards for who may
participate
in county board hearings.
The statutory provisions
governing the public hearing are located in Section 39.2 of the
Act; that Section does not limit participation
in the public
hearing to those who are “so located as
to be adversly affected”.
The Board finds
that Waste Management could not have raised
the issue of Mr. Valessares “standing”
to appeal to this Board as
a legitimate argument against Mr. Valessares ability to
participate
in a public hearing held before the county board.
Consequently, the Board
finds that Waste Management has not
waived the right to challenge Mr. Valessares standing here.
The substantive arguments that Waste Management presents
against Mr.
Valessares standing are therefore appropriate for
Board review.
It is not disputed that Mr. Valessares lives
between five and six miles from the proposed facility.
Waste
Management argues that this distance
is too great for Mr.
Valessares to be affected by
a determination on any of the
statutory criteria.
The Board sees some inconsistency in the position Waste
Management takes
in the motion to dismiss and their application
for
site approval.
That application includes a “Report on Need
for Expansion of the Settler’s Hill Sanitary Landfill” (herein-
after
“Report”).
The report is intended to demonstrate that the
“need” criterion of SB—172
is satisfied. Section 39.2
(a)(l).
The report contains numerous references
to the geographic
and
distance factors that affect need:
The
communities
in
Figure
1
are
within
an
approximate
ten
mile
radius
of
Settler’s
Hill.
Hence, they are well within the fifteen
mile radius which is considered as the
typical
service
area
radius
for
solid
waste
disposal
facilities.
This
radius
is
based
upon
time
and
distance
costs
encountered
by
waste
haulers.
The
disposal
cost
to
customers
in
these
communities
would
increase markedly
if
transportation distances were increased to the
sites 45 miles away.
(Report,
p.
2)
*
*
*
79-117
—13—
A number
of
other
issues also affect the need
for
the
expansion
of
Settler’s
Hill
land-
fill.
Among
these
are
the remaining service
lives
of
all
disposal
facilities
in
North-
eastern Illinois,
the effects of recycling and
other alternative
forms of disposal, and time—
frames
needed
to
develop
new
facilities.
(Emphasis added)
(Report,
p.
5)
The report proceeds to evaluate the approximately 10 disposal
facilities within 30 miles of Settler’s Hill
(Report, Table
2)
and
to evaluate the approximately 26 waste disposal facilities
in
Northeastern Illinois
(Report, Table
3).
Waste Management asserts that the proposed facility is
needed to accommodate waste generation from 1995 to about 2010:
The current site is projected
to be completely
filled
in
about
1995.
Camiros
found
that
other
sites
in the region are projected
to
be
completely
filled
at
about
the
same
time
as
the existing Settler’s
Hill Site.
Therefore,
it
is
unlikely
that
the
service
area
can
be
served
by alternate
facilities and
there
is
a
need
to provide
solid waste disposal capacity
to
the
service
area
after
about
1995.
The
proposed expansion of
the
Settler’s Hill Site
would
provide
disposal
capacity
for
the
proposed
service
area
until
about
2010.
(Report,
Coverleaf)
After
1995, Waste Management shows only four operating landfills
in Northeastern Illinois
(Report, Figure
2), and the proposed
facility would certainly be the closest to the Valessares
property.
The Board
is unable
to determine how facilities
located over 30 miles away would “affect”
the need criteria,
while
a resident located 5—6 miles away would not be “affected”
by the need criteria.
Mr.
Valessares challenges each and every factual and legal
finding
of Kane County (Petition for Review, Paragraph 15), which
would certainly include the need criteria.
His attorney cross—
examined on the need criterion at the county hearing
(C.B.H., pp.
18—20).
His attorney questioned need
in closing argument
(C.B.H., p.l26).
Mr. Valessares has expressed concern about
whether
there
is an immediate need for the facility
in his
deposition
(Valessares Deposition, pp.
30,43,52).
With these
facts, the Board must find that Mr. Valessares
is
,
“so located
as to be affected”
by the determination on need.
Consequently,
Mr. Valessares has standing
to pursue this review.
79-118
—14—
On May
4,
1987, Waste Management filed
a response
to
petition for leave to intervene.
That response asserts that
intervention by Mr. Cooper should be denied
in that he seeks to
raise new substantive issues and that an intervenor must “take
the case as he finds
it”.
The original petition for review in
this matter challenges
“each and every factual and legal finding,
decision, order and determination favorable
to the application
made below, as well as the lack of fundamental fairness...”
(Petition for Review, Paragraph 15).
Since Mr. Cooper’s
arguments fall within those parameters,
the Board will not
dismiss his intervention.
In summary, the Board finds that Mr. Valessares has standing
to petition for review, that Mr. Cooper’s intervention is
appropriate, and that Mr. Heil
is dismissed for lack of standing.
FUNDAMENTAL FAIRNESS
The Petitioner
(Valessares) asserts that the proceedings
below were fundamentally unfair because of
ex parte contacts and
conflicts
of interest.
Concerning the ex parte issue,
Valessares
argues that certain meetings between Waste Management and
a
county board member while the application was under consideration
render
the decision invalid.
Concerning the conflict of interest
issue, Valessares argues the three factors influenced the
decision in
a manner that invalidates the SB—l72 determination.
The first factor concerns contractual arrangements between Kane
County and Waste Management regarding ownership and financial
arrangements for the existing and proposed facility.
The second
factor concerns Waste Management’s contingent decision to build
a
national laboratory adjacent
to the proposed facility, once
it
was approved.
The national laboratory would be
a $15—l6 million
enterprise that would bring 150
scientific jobs to the area and
provide
a new sewer line from the City of Geneva.
The third
factor concerns
a $1.2 million gift from Waste Management to Kane
County for the construction of
a minor league baseball stadium on
land adjoining the existing Settler’s Hill facility.
The
issues which Valessares raises concerning ex parte
contacts and conflict of interest have been before this Board and
the courts
in another proceeding which deserves particular
attention.
That case involved the application of
E
&
E Hauling
(hereinafter
“B &
E”)
and the DuPage County Forest Preserve
District (hereinafter “the District”)
to the County Board of
DuPage for SB—l72 approval
to expand the Mallard Lake Landfill.
The DuPage County approval
for Mallard Lake was appealed to this
Board
on June
1,
1982.
That appeal particularly focused on
fundamental fairness as
it related to conflict of interest and ex
parte contacts.
On August
30,
1982, this Board overturned the
county board decision on grounds of fundamental unfairness and
remanded the matter for additional hearings.
The Board’s
decision was appealed
to the Second District which issued an
79-119
—15—
opinion on June
15,
1983, which focused on the conflict of
interest and
ex parte contact issues.
E
&
E
#1
The matter was
appealed to the Illinois Supreme Court which issued its opinion
on July
17,
1985.
E
&
E
#2
Both the Second District and the
Supreme Court affirmed the DuPage County Board decision.
In E
&
E
#1 the Second District reviewed the relevant law on
ex parte contacts and chose
to apply the PATCO standard
to county
board SB—172 proceedings.
PATCO v.
Federal Labor Relations
Authority, 685 F.
2d 547
(D.C.
Cir.,
1982).
Under PATCO,
the
moving party must demonstrate that the decisionmaking process is
“irrevocably tainted”, and the decision to vacate on review is an
exercise of equitable discretion.
After
reviewing the facts regarding ex parte contacts, the
Second District concluded that the contacts were improper, and
certainly ill—advised,
but that they did not constitute
reversible error.
The ex parte contacts which the Second
District reviewed all took place after
the application for site
suitability had been filed, but before the decision on the
application had been rendered.
The ex parte communications took
place between representatives
of E
& E and the Finance Committee
of the DuPage County Board.
The Second District’s summary of
those five Finance Committee meetings show that the subject
matter included
a 1981 agreement under which
E
&
E operated the
existing facility, proposed conditions under which E
& E would
operate the proposed facility, financial arrangements with the
County, funding for post—closure care,
and landfill liability.
At those meetings,
the conditions which would
be placed on the
operation of the proposed facility were determined,
“as
negotiated by attorneys for all parties”.
The Second District
found
it significant that the petitioner did not, apparently,
introduce evidence or argument on the desirability of the
landfill expansion at the Finance Committee meetings,
and found
that the process had not been shown to be “irrevocably
tainted”.
The Second District’s holding on this issue was not
disturbed by the Supreme Court in
E
&
B #2.
The facts
in the present proceeding before the Board are
quite similar
to those
in E
&
E.
After
the application for site
approval had been filed, but before
a final decision had been
reached,
one county board member
(Mr. Phillip Elfstrom) met
approximately ten times with representatives of Waste Manage-
ment.
Those meetings were not public hearings within the meaning
of SB—l72.
The subject matter
of those meetings was amendments
to
a contract which governed Waste Management’s operation of the
existing landfill and which might govern operations of the
proposed facility.
The discussions focused on the financial
arrangements between the County and Waste Management and resulted
in amendments to the contract regarding financial benefits that
would accrue
to the County and regarding
a post—closure care
fund.
The amended contract was presented to the Executive
79.120
—16--
Committee of the Kane County Board on February
5,
1987,
and was
presented to the full Kane County Board on February 10,
1987,
prior
to the vote to approve site location suitability.
During
the meetings between Mr. Elfstrom and Waste Management, there was
no discussion of the pending application for site approval
(P.C.B.H.,
p.
72).
The Petitioner has not presented, and the Board has been
unable to find, any significant difference between the factual
situation here and the facts
in
E
&
E.
Consequently, the Board
finds that the meetings constituted
ex parte contacts and that
the meetings were improper and ill—advised, but the meetings do
not constitute reversible error.
The Petitioner has failed to
demonstrate that the
ex parte meetings “irrevocably tainted” the
decisionmaking process.
The second argument Petitioner presents regarding
fundamental fairness is that Kane County had an improper conflict
of interest which
related to the financial arrangements with
Waste Management.
Again, this issue
is legally and factually
similar to the
E
&
E proceeding and the Board must look
to
those
court opinions for guidance.
Because the Supreme Court in
B
&
E
#2 did not accept the reasoning of the Second District
in E
&
E
#1
,only the Supreme Court Opinion is relevant.
In
E
&
B
#2 the Supreme Court was presented with a factual
scenario where
the county board was,
in effect, one of the co—
applicants
for site approval, the county board,
in effect, owned
the land on which the proposed facility would be located,
the
county board had taken prior legislative action to endorse the
filing of the application for site approval, and the county board
would receive significant sums of money under contract if the
site was approved.
The Court found
this did not overcome the
presumption that elected officials should be considered
to have
acted without bias and
in
a manner that best serves the interests
of their governmental units and constituents.
In today’s proceeding, this Board
is presented with
a
factual scenario where the county board owned or was acq~iring
the land on which the proposed facility would be located
,
took
1
P.C.B.H.,
Pet.
Ex.
No.
7
—
This agreement allows Kane County
to purchase property from Waste Management
for $430,248.38.
The
agreement contemplates that Waste Management will operate
a
sanitary landfill on the property and authorizes Waste Management
“to apply for and attempt
to
secure”
siting approval for
the
property.
79-121
—17—
prior legislative action
to endorse the filing of the application
for site approval2, and the county board would receive
significqnt sums of money under contract
if the site was
approved~.
The Board does not believe that the national laboratory has
a direct bearing on the conflict of interest issue.
The $15
million, scientific jobs, and sewer line are not purported to be
a gift to the county
for use in the county budget.
These items
are ancillary activities to the proposed facility which would
provide some unquantified benefit
to the county’s overall
economy.
The Board
is unwilling to hold that ancillary benefits
to a county’s economy should be considered a conflict of interest
rendering an SB—172 determination invalid.
The third
factor also seems irrelevant to today’s
determination.
The preliminary request to Waste Management for
a
donation was made before the application was filed with the
county and that request was turned down
(P.C.B.H.,
62—63).
The
donation by Waste Management was made after
the proposed facility
had already been approved by the county;
the record shows no
discussions about the gift during the time the county was
considering the application (P.C.B.H.,
p 73).
Again,
the Petitioner has not presented,
and the Board
cannot find, any significant difference between this factual
scenario and the one presented
to the Supreme Court in
E
&
B
#2.
Consequently,
the Board finds that the petitioner has not
demonstrated
a conflict of interest or bias that would render the
Kane County decision
invalid for lack of fundamental fairness.
In E
&
E
#2,
the Supreme Court held that
a conflict of interest
could arise where payments to the county generated a “substantial
portion”
of the county’s annual revenues.
Ward v. Village of
Monroeville,
409 U.S.
57,
34 L.Ed
2d
267,
93 S.Ct.
80
(1972).
No
such showing
is made
in today’s proceeding.
2
C.B.H., Hearing
Office.r
Ex.
No.
4
—
Kane County Resolution 86—
63 authorizes Waste Management to seek site location approval for
land which Kane County owns,
or has an option to buy.
The re-
solution specifically does
“not give approval to or prejudge
in
any manner” the subsequent application.
P.C.B.H.,
Pet.
Ex. Nos.
1
&
2
—
The Amended and Restated Real
Estate Lease provides that Kane County receive 10
of gross
receipts or
the percentage paid by Waste Management to any unit
of local government contiguous to Kane County, whichever
is
higher.
The agreement provides
for imposition of
a 0.l0~per
yard fee for post—closure care.
79-122
—18—
The Board believes it
is important to note at this point
what this proceeding does not involve.
The assertions regarding
ex parte contacts, conflict of interest, and bias have all
involved the multiple official duties of elected county
officials.
There has been no claim that any county official was
acting
in a personal manner or would receive the slightest
personal benefit from the challenged actions.
Today’s Opinion
should not be construed as controlling
in proceedings involving
personal aggrandizement by SB—172 decisionmakers.
In summary, the Board
finds that the Valessares has failed
to demonstrate that the proceedings below were fundamentally
unfair due to conflict of interest, bias,
or
ex parte contacts.
Mr. Cooper has challenged the fundamental fairness of the
proceedings below for different reasons.
Mr. Cooper asserts that
the proceedings below were fundamentally unfair because Kane
County did not make an affirmative effort to test or
inquire
about
the assertions made by Waste Management at hearing and
in
their application.
Mr. Cooper has demonstrated that no technical
experts
(other than those employed by Waste Management)
advised
the county board on the statements and exhibits supporting the
application.
Mr. Cooper points
to several SB—l72 proceedings
which demonstrate that other county boards did retain independent
experts to offer advice on the technical assertions of the site
applicants.
However, Mr. Cooper has not provided
a legal theory
to demonstrate that county boards have
a statutory duty to retain
such experts or why failure
to do
so would render the proceedings
below fundamentally unfair.
As the Board can find
no such duty
placed on the county board,
the failure to do so does not
constitute
a lack of fundamental fairness.
Accordingly, the Board finds that there is no showing that
the proceedings below were not fundamentally fair.
THE SUBSTANTIVE CRITERIA
Section 39.2(a)
of the Act requires
a local governmental
entity to apply seven criteria when making the determination
to
approve/disapprove a new regional pollution control facility.
The seven criteria are:
1.
the facility
is necessary to accommodate
the waste needs of the area it is intend-
ed
to serve;
2.
the facility
is
so designed,
located
and
proposed
to
be
operated
that
the public
health,
safety
and welfare
will
be pro-
tected;
79-123
—19—
3.
the facility is located so as to minimize
incompatibility with the character of the
surrounding
area
and minimize
the effect
on the value of the surrounding property;
4.
the
facility
is
located
outside
the
boundary
of
the
100 year
flood
plain
as
determined by
the
Illinois Department of
Transportation,
or
the
site
is
flood—
proofed
to
meet
the
standards
and
re-
quirements
of the
Illinois Department
of
Transportation
and
is
approved
by
that
Department;
5.
the plan
of
operations
for
the
facility
is designed
to minimize the danger to the
surrounding
area
for
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;
and
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.
As the present application does not cover the treatment,
storage
or disposal of hazardous waste, only the first six criteria are
relevant.
Section 40.1(b)
of the Act
(when read
in conjunction with
Section 40.1(a)) provides that the burden of proof
is on the
petitioner.
The applicant must prove
to the county board by a
preponderance of the evidence that the facility satisfied all
seven criteria.
However, in order
to overturn
a county board
decision,
a petitioner must prove
to this Board that the local
government entity’s decisions on the seven criteria were against
the manifest weight of the Evidence.
E
&
E
#1.
The Board’s review of Petitioner’s claim regarding the six
criteria
is substantially complicated by poor development of the
issues.
The Kane County determination on these
issues
is clearly
challenged
(Pet.
For Review,
par.
15)
and Mr. Valessares has
questioned
the criteria regarding need
(No.
1);
health,
safety
and welfare
(No.
2); and facility operations
(No.
5),
at the
county board hearing
(C.B.H., pp.
18—20,
35—40,
72—74,
126—
135).
However,
Petitioner has failed to provide this Board with
legal arguments or factual assertions
from the record, which
79.124
—20—
would demonstrate why the county board determination
is against
the manifest weight of the evidence.
Petitioner’s most clearly presented argument
is that the
existing facility has a remaining useful life of
8 to
9 years and
that site approval and preparation of a landfill expansion
normally takes only
2 to
3 years
(C.B.H.,
p.
19).
Based on these
facts alone, this Board cannot determine that Kane County’s
decision was against the manifest weight of the evidence.
Need
certainly has been demonstrated at some point
in the future
(Report).
Kane County may well have determined that thoughtful
and deliberate long—term planning for future landfill capacity
was
in the county’s best interests.
The Board finds that Kane
County’s determination that the facility is necessary to
accommodate the waste needs of the area
it is
intended to serve
is not against the manifest weight of the evidence.
Petitioner’s remaining arguments against the Kane County
determination are so poorly developed that the Board cannot
clearly define what the true nature of the conflict might be.
Consequently, the Board
finds
that Mr. Valessares has not
demonstrated that the decision of the Kane County Board
is
against the manifest weight of the evidence.
Where a Petitioner
fails
to make a significant or detailed showing that
a county
board determination is
in error,
the Board can determine that
petitioner has failed to carry the burden of demonstrating that
the determination is
in error.
The Board need not provide a
detailed review of the facts and evaluate all arguments which the
petitioner might have made.
Concerned Citizens Group et al.
v.
County of Marion, PCB 85—97, at p.
3, November
21,
1985.
Mr. Cooper’s arguments are more clearly focused,
particularly on the health,
safety and welfare criterion.
Mr.
Cooper asserts that he and his grandchildren drink water from the
Geneva water supply and that one of the wells
for that source
is
on property immediately adjacent
to the proposed expansion
(Pet.
to Intervene,
par.
2).
Mr. Cooper asserts that the proposed
facility might accept toxic materials and that the toxic
materials might leak.
Mr. Cooper further asserts that reports
introduced at the county board hearing show Waste Management
disclaims responsibility for the quantity and toxicity of waste
accepted at the facility (C.B.H.,
Cooper
Ex. Nos.
1
& 2).
The reports Mr. Cooper
introduced at hearing are waste
analysis reports prepared by Waste Management, and appear
to be
chemical analyses of two wastes received at the existing
Settler’s Hill facility in
1983.
The report forms are sent to
Kane County (C.B.H.,
p.
81).
Near the bottom of the chemical
analysis form
is
a statement,
“This report has been prepared for
the exclusive use and benefit of Waste Management.
No
representation concerning sample validity or analytical accuracy
or completeness
is hereby made to any other person receiving this
79-125
—21—
report.”
The
form appears to
be an
internal working document
(Form WMI-52; Copyright 1982, Waste Management)
rather
than a
governmental form submitted
to fulfill
a regulatory
requirement.
The Board does not believe that
a disclaimer
of
accuracy on an
internal working document can
be construed
as an
abdication of
responsibility by Waste Management for compliance
with the laws governing waste disposal
in landfills.
There
is a
detailed framework of statutory and regulatory law
in Illinois
governing
the construction and operation of landfills.
There
is
no evidence
in the record that Waste Management intends
to accept
waste
at
the proposed facility beyond
those permitted
by
law.
The Board
finds that Mr. Cooper has not made the requisite
showing regarding leakage of pollutants from the proposed
facility.
The only evidence
in the record regarding construction
of the facility, permeability
of the liner, and groundwater
flow,
come from Waste Management
(Application for Site Location
Approval, Part
2).
That information
shows ~hat the
area has
10
feet or more of low permeability clay
(10
—
cm/sec
or
less),
that
at
least three feet of the clay will
be recompacted
for
a
liner, that groundwater flow
is toward
the west
(away from area
wells),
and that groundwater monitoring will
be conducted to
ensure the integrity of the proposed facility.
Kane County
determined that the proposed facility is
so designed, located and
proposed
to be operated
as
to protect public health,
safety and
welfare.
Mr.
Cooper
has not demonstrated
that determination
to
be against the manifest weight of the evidence.
As the determination of the Kane County Board has not been
demonstrated
to be against the manifest weight of the evidence on
any of
the relevant criteria, that determination
is affirmed.
ORDER
The February
10,
1987, decision of the Kane County Board
granting site location suitability approval
to baste Management
for the proposed Settler’s Hill
II facility
is hereby affirmed.
IT
IS
SO ORDERED
Board Member
3.
Theodore Meyer concurred.
I, Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby cert~fythat
the above Q$nion
and Order was
adopted on the
/(ti.~-
day of
\.~&/
,
1987,
by a
voteof
~-O
.
7
Dorothy
M.
G(mnn,
Clerk
Illinois Pollution Control
Board
79-126
