ILLINOIS POLLUTION CONTROL BOARD
December
6,
1989
METROPOLITAN WASTE
SYSTEMS,
INC.,
SPICER,
INC.
and SPICER PROPERTIES,
INC.,
Petitioners,
)
PCB 89—121
(Landfill Siting
v.
)
Review)
CITY OF MARSEILLES,
Respondent.
SUPPLEMENTAL OPINION
(by J.D. Dumelle,
B.
Forcade, and R.
C.
Flemal):
On December
6,
1989,
the Board adopted an Opinion and Order
affirming the July 26,
1989 decision
of the City
of Marseilles
(“City”) denying
sitina location suitability approval
for
a new
regional pollution control
facility to Metropoitan Waste Systems
Inc.
(“Applicants”).
The portion of
the Board’s Opinion relating
to Criterion No.
1 states:
Six members of
the Board were present at
the December
6,
:.989 meeting at which decision
in this matter was statutorily required to be
made.
Section
5
of the Act provides
that
“4
votes shall
be required for any final
determination by the Board.”
The draft
Opinion discussed at
the meeting failed
to
pass,
the Board being “deadlocked”
at
a 3—3
vote.
As
a statutory majority of
4
votes
could not be mustered for any written Opinion,
there
is no Opinion of
the Board as
to the
criterion
1
issue
in this case.
We wish to supplement the record with our views on Criterion No.
1.
The “draft Opinion” mentioned in the quoted language above
contains approximately four pages
of discussion
on Criterion No.
1.
We agree with the najority of
that discussion.
However,
there was one paragraph with which
we disagreed.
That paragraph
would have reversed
a Board precedent
in Fairview Area Citizens
Task Force
v. Village of Fairview,
PCB 89—33.
Th this
supplemental opinion we first support
the validity of that case,
and how
it would apply
to the facts of this case.
We are also
reproducing that portion of the discussion under Criterion Nc.
1
contained
in the draft Opinion with which we agree.
CRITERION NO.
1
106-29
—2—
We find that the City’s determination the Applicants failed
to establish that the proposed facility
is not necessary
to
accommodate
the waste needs
of the intended service area
is not
against the manifest weight of evidence.
While Haas testified
that existing facilities had only
a
4—1/2 year life expectancy,
he also stated that, when considered individually,
the Grundy
County facility had a remaining life
of
7.7 years, DuPage County
had a
remaining life of approximately
9 years,
Kane County had a
remaining life
of
6.5 years and LaSalle County had a remaining
life of
7 years.
(R—2 at
490—93.)
Haas further agreed
that
if
LaSalle and Grundy Counties were combined
as
a service
region,
and excess disposal capacity of
4 million cubic yards would exist
over the next
25 years.
(R—l at 2409.)
The evidence regarding
the remaining life of existing facilities could reasonable lead
the City
to conclude that
the instant facility
is
not
necessary.
Moreover, the evidence also suggests that,
absent the
inclusion of Cook County
in
the intended service area,
the
instant facility
is not
“needed”.
The City has the authority
to
determine whether
a proposed service area
is acceptable
or
unacceptable.
(Fairview Area Citizens Task Force
v. Village
of
Fairview, PCB 89—33.)
By finding that criterion
1 was not
satisfied, th~City has effectively rejected Applicants’ proposed
service area.1
Merely because
there
is evidence which,
if
accepted,
would have supported
a contrary conclusion,
does not
mean that we will substitute our
judgement for that of
the
City.
We will
not distur
the City’s finding
that Applicants
failed to meet the requirements of criterion
1.
Section 39.2(a)(l)
of
the Act requires the City to review
Applicants’
request
for site approval
to ensure that the proposed
facility
is necessary to accommodate the waste needs of the area
it
is
intended to serve.
(Ill.
Rev.
Stat.
1987,
ch.
111 1/2,
par.
l039.2(a)(l).)
We must determine whether the City’s finding
that Applicants failed to estab..Jshed “need”
as set forth in
the
Act
is against the manifest weight of the evidence.
The proposed service area for the facility is composed of
the Counties of LaSalle, Grundy,
Kendall, Will,
DuPage,
Kane,
McHenry, Cook and Lake.
(R—2 at
427; App.
Ex.
4 at
3.)
The
facility
is designed to accept solid waste for period cf
25 years
and has a design capacity of 55,000,000 cubic air yards.
(R—2
at.
429;
App.
Ex.
6 at
20,
30.)
Dr. Charles Haas,
an environmental engineer, testified that,
in hi~opinion,
the proposed facility is necessary
to accommodate
the waste needs of the area
it
is intended
to serve.
(R-~2at
425—504;
App.
Ex.
4.)
According to Haas,
734,000,000 cubic yards
1We note,
however
that the City’s statement “the
possibility of more convenient
sites being developed”
is improper
speculation and not a proper basis
for negating “need”.
(See,
Tate
v.
PCB,
No. 4—89—0061,
slip op.
at
51
(4th Dist.
Sept. 2~,
1989).
106 30
—3—
of solid waste will
be generated within the proposed service area
during the intended service
life of the facility.
(R—2
at
429.)
As of March 31,
1989,
the existing disposal capacity of
solid waste facilities within the proposed service area was
146,000,000 cubic yards.
(R—2 at 431—32.)
At current disposal
rates,
Haas stated that the existing disposal capacity wit~iinthe
proposed service area will
be exhausted
in approximately 4~/2
years.
(R—2 at
431—32.)
According
to Haas,
therefore,
the solid
waste generated
in the service area will exceed existing disposal
capacity by 570,000,000
cubic yards over the 25—year design life
of
the proposed facility.
(R—2
at
433.)
Haas then considered
the cumulative effects
of
recycliqg, composting,
and
incineration,
if actively pursued’ and concluded that solid waste
generated within the proposed service area would exceed existing
disposal capacity by
242,000,000 cubic yards.
(R—2 at
433-34.)
Haas further
testified
that he knew that
a new pollution
control
facility to be located
in Bartlett,
Cook County,
had
received site location approval.
(R—2
at 434.)
This facility
has a projected waste capacity of
40 million cubic yards.
(Id.)
Haas also stated that
he was aware
that the Gallatin
National Facility,
which would
serve
Cook,
McHenry, Lake,
Kane
and DuPage Counties, with a design capacity of 15.8 million cubic
yards has received site location approval.
(R—2
at 435.)
Haas
opined that,
should these facilities become operational,
his
opinion
that.
the instant facility was needed would not change.
(R—2
at 436—37.)
Lastly, Haas testified that,
in his opinion,
the proposed
facility
is reasonably convenient
to accommodate the waste needs
of
the intended service area.
(R—2 at
437.)
Haas based this
opinion on the “convenience and accessibility of the proposed
site
to the waste generation patterns of
the service area via
both road and rail transportation.”
(Id.)
Cross—examination
of Haas
focused on his consideration of
alternative waste facilities and their
impact on his conclusion
that the proposed facility
is “needed” within the meaning
of
criterion
1.
Haas admitted that the specific site of the
proposed facility was not determinative of
need and that his
position would be the same
if
the facility were proposed at
a
different location as long as the size, design lifetime and
proposed service area were the same.
(R—2 at
2420;
R—2 at
495.)
When questioned about
his calculation that the disposal
capacity of
the existing facilities would be exhausted within
4
1/2 years,
Haas stated that this finding was based upon the
assumption
that
a volume equivalent
to all the waste generated
within that area will be disposed of
in that area.
(R—2
at
2Dr. Haas applied a 50
reduction in volume resulting from
recycling, composting and incineration.
However, he opined that
a 25
reduction rate was more realistic.
(R—2 at
432,
452.)
106—3 1
—4—
489.)
Upon cross—examination,
Haas noted that waste generated in
a specific area
is not always deposited within that same area.
(R—2 at
490—93.)
Haas recognized that
in actuality
a county may
be disposing of more waste than
it
is actually generating.
(R—2
at
490.)
Therefore, when the amount of
waste disposed of at a
particular
facility is divided into the remaining life expectancy
of that facility,
the remaining life of the facilities located
in
LaSalle,
Grundy,
Will,
DuPage,
Kane and Lake exceeds
the
4 1/2—
year expectancy asserted
by
Haas.
(R—2 at 431—32)
(R—2 at
490—
94; App.
Ex.
5.)
Additionally, Haas stated that his calculations
were upon the assumption
that,
during the expected design lif~
of
the existing facilities,
no new facilities would
be permitted-a
and no existing facilities would be expanded.
(R—2 at 492.)
Although
at the 1988 hearings Haas recognized that the
inclusion of Cook County
in the intended service area provides a
“dominant deficit”
in disposal capacity
(R—l at
2401),
he stated
at the 1989 hearings that the exclusion of Cook County from the
intended service area would not alter his opinion that the
proposed facility
is necessary.
(R—2
at
497,
501—02.)
On cross—examination, Haas was nuestioned about
the
convenience of
the instant facility.
(R—2
at 458—514.)
However,
Haas did not make
a determination as to the cost of transporting
waste
to the proposed facility nor did
he
inquire into tne costs
of disposal
to the individual generator.
(R—2
at 459—61.)
Haas
also stated that he did not know whether Applicants had any
contracts with any waste haulers or generators
in Cook County
to
dispose of
their waste at
the proposed facility.
(R—2
at
503.)
The City found that the proposed facility
is not necessary
to accommodate the waste needs
of the
area
it
is intended
to
serve.
In
its
decision, the City stated that although
it found ~
need
in northern Illinois
for additional waste disposal
facilities,
the criterion is not satisfied because:
“(1)
the
record does not show any urgent need for
a landfill;
and/or
(2)
the Applicant has not shown a reasonable means
to serve any
demand for landfill capacity from Cook or Lake Counties at
this
landfill, given distance, lack of contractual commitment of
customers, uncertainties of transportation and the possibility o~
other, more reasonable and convenient sites being developed.”
Applicants argue that both of these findings are contrary
to the
manifest weight of the evidence.
In reviewing this Board’s decisions regarding site location
approval,
the Appellate Court
of Illinois has held that an
applicant need not show absolute necessity in order
to satisfy
criterion
1.
(Clutts
v.
Beasley,
541 N.E.2d 844,
846
(5th Dist.
1989); A.R.F.
Landfill
v.
PCB,
174
Ill. App.
3d
82,
528 N.E.2d
3subsequent
to Haas’
testimony,
the Agency granted the
Bartlett facility, which
is located within the intended service
area of the instant facility,
an operating permit.
1fl6—32
—5—
390,
396
(2nd Dist.
1988); WMI v.
IPCB,
122
Ill. App.
3d
639,
461
N.E.2d
542,
546
(3d Dist.
1984).)
The Third District has
construed
“necessary” as connoting
a
“degree of
requirement or
essentiality” and held that the applicant must show that
the
facility
is
“reasonably required by the waste needs of the area
intended
to be served,
taking into consideration the waste
production of
the area and the waste disposal capabilities, along
with any •other relevant factors.”
(WMI
v.
IPCE,
461 N.E.2d at
546.)
The Second District has adopted
this construction
of
‘necessary” with the additional
requirement
that the applicant
must demonstrate both an urgent need
for,
and the reasor~able
convenience of,
the new facility.
(Waste r4anaaenent
v.
PCB,
175
Ill. App.
3d 1023,
530 N.E.2d
682,
689
(2d Dist.
1988); ~
Landfill
v. PCB,
528 N.E.2d at 396; WMI
v.
PCB,
463 N.E.2d st
976.)
Given uhese interpretations of “necessity”
the Board
cannot say that the City’s reliance upon the term “urgent”
is
in
error.
We
note that there was
no evidence
or testimony
relating to
criterion
1 offered in opposition
to the evidence and testimony
of Applicants.
In Waste Management
of Illinois
v. Village of
Bensenville,
PCB 89—28
at
8
(August
10,
1089),
the Board noted
that
Section 39.2
of
the Act. does not impose a duty upon any
person other than the applicant to present evidence with
respect
to an application for site location approval.
Thus,
the lack of
evidence on
a certain criterion
is not,
in and of
itself,
grounds
for reversal of the local decision making body’s decision on that
criterion.
Even where all of the evidence submitted
is that of
the applicant,
the local decision making body may still withhold
its approval.
(Id.
at
9.)
“Reasons for denial may include, but
are not limited
to,
a local decision making body’s finding that
the applicant has not met its burden of proof
oh any or all of
the criteria or that the applicant’s proof
is not credible.”
(Id.)
We believe that the City’s determination that Applicants
failed
to establish that the proposed facility
is not necessary
to accommodate the waste needs of
the intended service area
is
not against the manifest weight
of evidence.
While Haas
testified that existing facilities had only
a
4 1/2 year life
expectancy, he also stated
that, when considered
individually,
the Grundy County facility had a remaining
life of 7.7 years,
DuPage County had a
remaining life of approximately
9 years,
Kane
County had a remaining life of
6.5 years and LaSalle County had
a
remaining life oF
7 years.
(R—2
at
490—93.)
Haas further agreed
that
if LaSalle and Grundy Counties were combined as
a service
region,
an excess disposal capacity of
4 million cubic yards
would exist over the
next
25 years.
(R—l
at 2409.)
The evidence
regarding the remaining
life of
existing
facilities could
reasonably
lead the City
to conclude tnat the instant facility
is
not necessary.
We will not disturb the City’s decision that
Applicants failed
to meet the requirements
of criterion
1.
106 33
—6—
For these additional reasons, we voted to uphold the City’s
decision
Mer~ber
Bill .orc
,
Bo~~roMEmoer
A
Ronald
C.
Flemal, Board Memb~
I,
Dorothy M. Gunn,
do hereby certify that the above
emental Opinion was filed on the
//~‘
day
1990
/
/
ii1~
—
Ii
lution Control Board
106—34