ILLINOIS POLLUTION CONTROL BOARD
December
20, 1990
ERWIN HEDIGER, HORACE FILE,
)
SUSIE ARMBRUSTER, ARLIN WOKER,
)
LAYTON PEDDICORD,
ARLINE
DAIL,
)
BURNELL NEUMANN, LAVERLE EARLE,
LYNN SCHMOLLINGER, HOWARD PRINGLE,
)
REID BINGHAM, AGNES PRINGLE,
)
CRAIG WOKER, MRS.
0.3.
DAIL,
)
JEANETTE TIFT, GLEN MILES
)
BILL G000ALL, DONALD SPRADLING
)
HOLLIE WILLMANN, CHARLES H.
FUNK,
)
CAROLYN SPRADLING, PAMELA FUNK,
)
LOLA BROWN,
JAMES
DARNELL
LEROY WIESE, LAMOINE BROWN,
MIKE EATON, JIM STOECKLIN,
)
BOB BOWEN,
MARY
BLOEMKER,
)
DON
CORE, ELDON BLOEMKER,
)
FRANCIS RINDERER,
DANNY KUHN,
)
MRS.
RALPH BAUMANN, PAMELA
)
BRYANT, LEORA LEISHER,
MR.
RALPH
BAUMANN, JIM ZEBB,
)
MYRNA BRUCE, RICHARD ARMBRUSTER,
)
JOHN LANGFORD, MRS.
PEGGY
)
DARNELL and BOND COUNTY
)
CONCERNED CITIZENS,
)
Petitioners,
V.
)
PCB 90—163
)
(Landfill Siting)
D
& L LANDFILL,
INC., BOND
COUNTY BOARD OF SUPERVISORS,
COUNTY OF BOND,
STATE OF ILLINOIS,
Respondents.
JAMES BUCHMILLER APPEARED ON BEHALD OF THE PETITIONERS.
W.A. DILLOW,
III APPEARED FOR THE RESPONDENT, D & L LANDFILL,
INC.
JOHN KNIGHT APPEARED FOR THE RESPONDENT, BOND COUNTY BOARD OF
SUPERVISORS.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Illinois Pollution Control
Board
(“Board”) on a third—party appeal filed August
20,
1990
pursuant
to Section 40.1(b)
of the Environmental Protection Act
117—117
—2—
(“Act”) Il1.Rev.Stat.
Ch.
lll~,
par.
1040.1
(b).
The above—named
individuals and Bond County Concerned Citizens
(Collectively
referred to hereafter as “BCCC”) appeal the decision of the Bond
County Board of Supervisors
(“County Board” or
“Bond County”)
granting site location suitability approval
to D
& L Landfill,
Inc.
(“D
& L”) for
a vertical expansion of its existing landfill.
Procedural History
D
&
L filed
its application for landfill siting approval
with Bond County on February 8,
1990.
Public Hearings on D
& L’s
application for the proposed vertical expansion and closure/post-
closure were conductedby the Bond County Board on May 24 and
June
14,
1990.
The Bond County Board issued the decision to
approve the application on July
19,
1990.
BCCC filed their petition with this Board on August
20,
1990.
The matter was accepted for hearing on August 30,
1990.
On September
10,
1990,
D
& L filed
its response to the
petition.
On September 17,
1990 BCCC filed an amendment to the
petition.
On September 24, 1990 Bond County submitted
a
certification of record and the County Board
record.
On
September 25,
1990, BCCC filed an amendment
to the petition.
On October
19,
1990 the Board’s hearing was held in
Greenville,
Illinois.
A waiver
of
the decision due date until
December
22, 1990 was filed on October
22, 1990.
On October
23,
1990, original photographs were filed with the Board in
substitution for the previously filed photocopies.
The
photographs comprise applicant’s exhibits 12—18 and the County
Board’s consultant’s exhibits 12—19.
Pursuant to the Board’s order of October
25,
1990, on
October
29,
1990, Bond County submitted a revised certification,
index of exhibits, and labelled exhibits.
No briefs were
submitted
in this matter.
The record submitted by Bond County
consists of the transcripts from the May 24 and June
14, 1990
public hearings; the application documents; applicant’s exhibits
1—24;
the certification of publication of notice;
copies of
letters and certified mail receipts for notice
to the Illinois
Environmental Protection Agency
(“Agency”) and legislators, BCCC
exhibits
1,
2,
3, and 6; Patrick Engineering’s (consultant to the
County Board) exhibits 1—24;
and the written decision of the
County Board.
Background
The proposed facility would be a vertical expansion of a
landfill now located
in Bond County,
Illinois,
at the
southwestern edge of the City of Greenville,
Illinois.
Ed. Tr.*
*The abbreviation,
Bd. Tr., will be used to signify the
transcript
of the Board’s October
19, 1990 hearing.
117—118
—3—
at
6.
The expansion would enable D
& L to continue operations at
the same site where D
& L has operated since 1974.
This landfill
“was operated under the Illinois Department of Public Health and
Pet Milk and the City of Greenville” prior
to D
& L’s acquiring
its permit on May 13,
1974.
Tr.
**
at p.
13.
The original
permitted facility includes
32 acres, of which 15 acres would be
used for the vertical expansion.
Tr. at pp.
21,
40 and Bond
County Board Ex.
2.
The vertical expansion would involve a
maximum height of 590 feet above main sea level,
compared with
present levels of 530
—
540 feet at one end of the existing trash
area.
Tr. at p.
26.
The fill depth for the new area was stated
as being
20 to 40 feet on average above the existing site.
Tr.
at p.
39;
see also Tr.
at
pp.
76-77.
The proposed facility would operate daily, Monday through
Saturday from 5:00 a.m.
to 8:00 p.m. May 1st through August 31st
and from 6:00 a.m.
to 6:00 p.m. from September 1st through April
30th.
Tr. at
p.
37.
The vertical expansion would allow
approximately 308,000 cubic yards of additional waste
to be
delivered to the site.
Tr. at p.
25; see also Tr.
at pp.
123—
124.
Hazardous wastes would not be accepted at the facility.
Based on D
& L’s records indicating that 500 cubic yards per
day are now delivered
to
the site,
D
& L’s engineer projects that
within
2 years
the waste capacity gained from the vertical
expansion would be fully used.
Tr.
at p.
26.
But see also Tr.
at pp.
73—74 indicating that waste volumes reported to the state
were last stated at 63,087 cubic yards per year, which suggests a
longer “life”
for the 308,000 cubic
feet of added capacity.
Final closure would then take place.
Closure/post—closure plans
include a groundwater monitoring program and plans, construction
of
a berm around the entire perimeter of the site, and quarterly
inspections.
Tr.
at pp.
17—19,
p.
31, pp. 96—102,
112—120,
and
D
& L Ex.
8.
Six monitoring wells are to be installed,
replacing
two existing monitoring wells.
Tr. at pp.
32—33,
p.
117.
D
& L’s enigneer described the area surrounding the facility
as including agricultural/farming uses to the north and west;
a
number of residences on the opposite side of the road and a
nearby public housing project to the south; and the City of
Greenville directly to the east.
Tr. at pp.
21, 67—68.
Introduction
Public Act 82—682, commonly known as SB—172,
is codified in
Sections 3.32, 39.2 and 40.1 of the Act.
It vests authority in
the county board
or municipal government to approve or disapprove
the request for each new regional pollution control facility.
These decisions may be appealed to the Pollution Control Board,
whose authority to review the landfill site location decisions of
**The abbreviations, Tr. and
2 Tr.,
will be used to signjify
the transcripts
of
the
County
Board hearings held on May
24,
1989
and June
14,
1990,
respectively.
117—119
—4—
Greenville directly to the east.
Tr. at pp.
21,
67—68.
Introduction
Public Act 82—682,
commonly known as SB-172, is codified
in
Sections
3.32,
39.2 and 40.1 of the Act.
It vests authority in
the county board or municipal government to approve or disapprove
the request for each new regional pollution control facility.
These decisions may be appealed to the Pollution Control Board,
whose authority to review the landfill site location decisions
of
local governments is found
in Section 40.1 of the Act.
The
Board’s scope of review encompasses three principal areas:
(1)
jurisdiction,
(2) fundamental fairness of the local government’s
site approval procedures,
and
(3) the nine statutory criteria for
site location suitability.
Pursuant to Section 40.1(a)
of the
Act,
the Board is to rely “exclusively on the record before the
county board or the governing body of the municipality” in
reviewing the decision below.
However, with respect to the issue
of fundamental fairness,
the Illinois Supreme Court has affirmed
that the Board may look beyond the record to avoid an unjust or
absurd result.
E&E Hauling,
Inc.
v.
PCB, 116 Ill.App.3d
587,
594,
451 N.E.2d 555
(2d Dist.
1983),
aff’d in part 107 Ill.2d
33,
481 N.E.2d 664
(1985).
Jurisdiction
Jurisdiction is not at issue
in this case.
Fundamental Fairness
Section 40.1(a)
of the Act requires that the county board or
local governing body must employ procedures,
in reaching its
siting decision, which are “fundamentally fair.”
Due process
considerations are an important aspect of fundamental fairness.
Administrative proceedings are governed by the
fundamental principles and requirements of due
process of law.
Citation.)
Due process
is a
flexible concept
and
requires
such procedural
protections
as
the
particular
situation de-
mands.
Citation.)
In
an
administrative
hearing,
due process
is
satisfied
by proce-
dures that are suitable
for the nature of the
determination
to
be made and
that conform to
the
fundamental
principles
of
justice.
Citation.
Furthermore,
not
all
accepted
requirements of due process
in the trial of
a
case are necessary at an administrative hear-
ing.
Citation.
~
Due process require-
ments
are determined
by balancing the weight
of the individual’s interest against society’s
interest
in
effective
and
efficient
govern-
mental operation.
Waste Management
of Illinois,
Inc.
v.
PCB,
175
117— 120
—5—
Ill.App.3d
1023,
1036—37,
530
N.E.2d
682
(2d
Dist.
1988).
Thus,
the manner in which the hearing
is conducted, the
opportunity to be heard,
the existence of ex parte contacts,
prejudgment of adjudicative facts, and the introduction of
evidence are important, but not rigid, elements in assessing
fundamental fairness.
The recognized remedy for a lack of fundamental fairness
is
for the Board to remand to the county board to allow them an
opportunity to cure this procedural deficiency.
City
of Rockford
v. Winnebago County Board, PCB 87-92,
83 PCB 47
(November
19,
1987).
This takes the siting decision back to the local
authorities,
who pursuant to Section 39.2(a)
have been given this
decisionmaking authority.
Although BCCC raised the issue of fundamental fairness in
its Petition at
p.
3, the Board finds that the arguments raised
by BCCC are not concerned with whether the County Board conducted
the proceedings below
in a fundamentally fair manner,
but rather,
BCCC argues that the County Board should not have drawn
conclusions from the evidence which resulted in approval of the
application.
This raises the issue that the County Board’s
decision was against the manifest weight of the evidence,
not
that the County Board’s procedures or conduct was fundamentally
unfair
in reaching a different outcome than that sought by
BCCC.
The Board,
therefore,
will proceed to address the
statutory criteria for site suitability and whether the County
Board’s decision on each criterion should be upheld by this
Board.
Statutory Criteria
Section 39.2 of the Act presently outlines nine criteria for
site suitability, each of which must be satisfied if site
approval
is to be granted.
Waste Management of Illinois,
Inc.
v.
PCB,
160 Ill. App.
3d.
434,
513 N.E.
2d 592
(1987).
In
establishing each of the criteria, the applicant’s burden of
proof before the local authority is the preponderance of
the
evidence standard.
Industrial Salvage
v. County of Marion, PCB
83—173,
59 PCB 233,
235,
236
(August
2, 1984).
Section 39.2(a)
of the Act sets forth the nine criteria as follows:
The
county
board
of
the
county
or
the
governing
body
of
the
municipality,
as
determined
by paragraph
(c)
of
Section
39
of
this
Act,
shall
approve
or
disapprove
the
request for local siting approval
for each new
regional
pollution control
facility
which
is
subject
to
such
review.
An
applicant
for
local
siting approval
shall submit
sufficient
details
describing
the
proposed
facility
to
demonstrate
compliance,
and
local
siting
approval shall be granted only
if the proposed
117—121
—6—
facility meets the following criteria:
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.
the
facility
is
located
outside
the
boundary
of
the
100 year
flood plain
or
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;
and
8.
the
the
facility
is
to
be
located
in
a
county where the county board has adopted
a
solid
waste
management
plan,
the
facility
is
consistent
with
that
plan;
and
9.
if
the facility will
be located within
a
regulated
recharge
area,
any
applicable
requirements
specified
by
the
Board
for
such areas have been met.
BCCC challenges the County Board’s decision with
respect
each of
the above criteria, except number
7,
which only involves
hazardous waste facilities.
The Board is now charged with
deciding whether the County Boardts conclusion with respect to
each contested criteria was against the manifest weight of the
117— 122
—7—
evidence.
Standard
of Review
As stated above, on appeal,
the PCB must review each of
the
phallenged criteria based upon the manifest weight
of the
evidence standard.
This standard of review was recently restated
in Fairview Area Citizens Taskforce v.
IPCB,
144 Ill. Dec.
659,
555 N.E.2d 1178 (3d Dist.
1990) as follows:
In Tate,
the standard of
review
in a regional pollution
control
facility
site—location
suitability
case
was
stated:
Waste Management of
Illinois,
Inc.
v. Pollution Control
Board
(1987),
160 Ill.App.3d 434
(112 I1l.Dec. 178,
513
N.E.2d
592,
decided that all of
the statutory criteria
must
be
satisfied
in
order
for
approval and
that
the
proper
standard
of
review
for
the
County
Board’s
decision is whether the decision is against the manifest
weight
of
the
evidence,
with
the
manifest
weight
standard being applied to each and every criterion.
See
also City of Rockford v.
Pollution Control Board
(1984),
125 Ill..App.3d 384
80
Ill.Dec.
6501,
465 N.E.2d
996.
A
decision
is
against
the
manifest
weight
of
the
evidence
if
the
opposite
result
is
clearly
evident,
plain,
or
indisputable
from
a
review
of
the
evidence
(Harris
v.
Day
1983,
115
Ill.App.3d
762
71
Ill.Dec.
547),
451 N.E.2d 262).
The province of the hearing body
is
to
weigh
the
evidence,
resolve
conflicts
in
testimony,
and
assess
the
credibility
of
the
witnesses.
A
reviewing
court
is
not
in
a position
to
reweigh
the
evidence,
but
can merely determine
if
the
decision
is
against
the
manifest
weight
of
the
evidence.
Jackson
v.
Board
of Review of the Department
of Labor
(1985),
105
Ill.2d
501
86
Ill.Dec.
500,
475
N.E.2d
879;
McKey
& Poague,
Inc.
v.
Stackler
(1978),
63
Ill.App.3d 142
20
Ill.Dec.
130,
379 N.E.2d 1198.
Fairview Area Citizens Taskforce v.
IPCB,
555 N.E.
2d at
1184,
citing Tate v.
PCB,
188 Ill.App.3d 994, 544 N.E.2d
1176,
1195
Thus,
the Board must affirm the decision of the local
governing body unless that decision
is clearly contrary to the
manifest weight of the evidence, regardless of whether the local
board might have reasonably reached a different conclusion.
See
•also E&E Hauling
v.
PCB, 116 Ill.App.3d
586, 451 N.E.2d 555
(2d
Dist.
1983); City of Rockford v.
IPCB and Frink’s
Industrial
Waste,
125 I1l.App.3d 384,
465 N.E.2d 996
(2d Dist.
1984);
Waste
Management
of Illinois,
Inc.
v.
IPCB,
22 Ill.App.3d 639,
461
N.E.2d
542
(3d Dist.
1984); Steinberg v. Petta,
139 Ill.App.3d
503,
487 N.E.2d 1064
(1st Dist.
1985); Willowbrook Motel
v.
PCB,
135 Ill.App.3d
343,
481 N.E.2d 1032
(1st Dist. 1985).
117—123
—8—
It should be noted that the Fairview court, citing
Tate,
defined the responsibilities of the hearing body
in terms of
weighing the evidence, resolving conflicts in testimony, and
assessing the credibility of witnesses.
It is not the local
government’s burden to disprove or
refute the applicant’s
assertions.
The decisionmaking authority rests solely with the local
government.
A local government’s consultant
report, even if
accurately characterized as urging approval,
is not binding on
the decisionmaker.
McLean County Disposal Company,
Inc.
v. The
County of McLean, PCB 89-108,
105 PCB 203,
207
(November
15,
1989).
The Bond County Board hired an engineer, Mr. Moose, who
reviewed the D
&
L application and who testified at the public
hearing.
BCCC argues that the County Board’s engineer found
certain criteria were not met by D
& L and that the application
lacked adequate information such that the engineer could not make
a favorable recommendation on certain other criteria.
See Pet.
at pp. 7—11 and Tr. pp.
16—36.
Without addressing here each
aspect of the testimony of the County Board’s expert,
the Board
again notes
that the local government
is not bound by the
recommendations of its experts.
The testimony of the County
Board’s expert
is, however,
relevant to the Pollution Control
Board’s decision as to whether the local government’s decision
was against the manifest weight of the evidence.
This Board will
evaluate the testimony of the County Board’s engineer in that
context only.
Discussion
The issue before the Board is whether or not the decision of
the Bond County Board, finding that
D
&
L proved that the
proposed facility satisfies criteria 1,
2,
3,
4,
5,
6,
8, and 9,
is against the manifest weight of the evidence.
Criterion
1:
the facility is necessary to accommodate
the waste
needs of the area
it
is intended to serve.
Pursuant to Section 39.2(a)(l)
of the Act, the Bond County
Board is required to review D
& L’s application to ensure that
the proposed facility is necessary to accommodate the waste needs
of the area
it
is intended to serve.
The applicant
is not
required to show absolute necessity
in order
to satisfy criterion
1.
Fairview Area Citizens Taskforce v.
IPCB,
555 N.E.2d at
1185,
citing Tate
v. Macon County Board,
544 N.E.2d 1176; Clutts
v.
Beasley,
185 Ill.
App.
3d
543,
541 N.E.2d 844,
846 (5th Dist.
1989);
A.R.F. Landfill,
Inc.
v. PCB,
174 I1l.App.3d 82,
528
N.E.2d
390, 396
(2d Dist.
1988); Waste Management of Illinois
v.
PCB, 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 not just “reasonably
convenient.”
Waste Management of Illinois
v.
PCB,
461 N.E.2d at
546.
The Second District adopted this construction of
117—124
—9—
“necessary” with the additional requirement that the applicant
demonstrate both an urgent need for, and the reasonable
convenience of,
the new facility.
Waste Management of Illinois,
v.
PCB,
530 N.E.2d 682,
689
(2d Dist.
1988); A.R.F. Landfill,
Inc.
v.
PCB,
528 N.E.2d at 396; Waste Management of Illinois
v.
PCB,
463 N.E.2d 969,
976
(2d Dist. 1984).
The applicant defines the area to be served.
Metropolitan
Waste Systems,
Inc.,
Spicer,
Inc.,
et
al.
v IPCB,
146 Ill. Dec.
822,
558 N.E.
2nd 785
(Third Dist.
1990).
D
&
L has discussed
its service area in terms of the highly localized needs which the
current facility serves,
that is, primarily the needs of Bond
County.
This Board previously has found that this narrow
approach alone does not warrant the Board’s reversal of the local
government’s decision.
Bond County Concerned Citizens,
et al
v.
D
& L Landfill,
Inc., PCB 90—94, August 30, 1990.
BCCC asserts that other facilities are available
to meet
Bond County’s disposal needs.
BCCC also argues that the
statutory •requirement,
that the facility
is necessary to meet the
waste needs of the area intended to be served,
has not been
satisfied,
in part,
because the applicant did not introduce
evidence on other available facilities.
BCCC stated at this
Board’s hearing that:
“....there was simply the testimony of the engineer
for
the operator,
Mr.
Conner,
that the landfill was full.
He basically gave
no testimony that there was....
....no other disposal site available.
When questioned,
they said that they made no study
to determine what else or what other
sites were
available, and,
therefore, nothing was
in the
application in that regard.
No study was made as to what additional costs would
be incurred with regard to putting the trash at some
other
site,
at some other location.
Bd. Tr. at p 9.
BCCC argues that another hauler would be available to haul
Bond County’s waste to other facilities, and that other
communities using other disposal facilities were paying less than
or equal
to D
& L’s disposal charges.
Pet.
at p.
5,
2 Tr.
at pp.
79—80.
BCCC also relies on the testimony of the County Board’s
consultant,
who pointed out
that while the existing facility had
no remaining life, alternatives had not been explored, and,
therefore,
the need for
the facility could not be determined.
Pet.
at pp. 7—8, citing
2 Tr.
at pp.
21—22.
BCCC attempted at this Board’s hearing to present evidence
on available facilities
by reference to certain documents
attached
to a letter which BCCC submitted as public comments for
consideration by the County Board.
D
& L objected to the
117—125
—10—
inclusion of those documents in the record before this Board
since the attachment reportedly was submitted one day after the
30 day comment period, even though the letter itself was timely
filed.
Bd.
Tr. at pp.
10—12.
BCCC responded at hearing that the
letter independently presented evidence that alternative
facilities existed which would involve minimal or
no additional
disposal costs
to Bond County.
The Board finds that the
statement at p.
3 of
D
& L’s Response to Amendment
to Petition
that,
“it appears as if counsel for the Petitioners has attempted
to introduce into evidence various exhibits more than thirty
(30)
days after
the date of the last public hearing on this matter”,
did not sufficiently inform this Board of the matter
to which D
&
L objected.
The Board will not construe such general statements
as an objection or motion
to exclude.
However, the Board has
considered the objection raised by D
& L at this Board’s hearing,
and finds that the particular attachments should not be
considered as part of the County Board’s record to be reviewed by
this Board.
D
& L argues that its expert stated that D
& L serves a
three
or four county area,
that Bond County has no other
landfills,
that the nearest other landfill is
in Litchfield,
and
that costs would increase to haul trash
fa’rther.
Bd.
Tr.
at
41,
citing Tr.
at pp.
48,
82,
83.
See also
2 Tr.
at pp.
93—99.
D
&
L
also focuses on the testimony of the County Board’s
consultant,
who observed that the current facility’s capacity is
depleted and that the rate of disposal had been increasing
for
three or four years.
Bd.
Tr.
at pp.
41, citing
2 Tr.
at p.
21.
In addition to the assertions of need by D
&
L,
the County
Board also heard the testimony of
its own consultant, who
testified that as
a practical matter
trie existing facility had no
remaining life.
“Either they receive the vertical expansion;
or,
they will
be forced to close by the IEPA.
Right now.”
2 Tr. at
p.
21.
The County Board also heard the continuing testimony of
its consultant,
in which he noted that
“I don’t think,
in my
opinion,
this totally answers the need question.”
2 Tr. at p.
21.
As BCCC notes, the consultant stated that the application
did not present alternatives or
cost, but that there were no more
landfills in this county.
2 Tr.
at pp.
22.
After reviewing the application, hearing arguments from both
D
& L and BCCC, and hearing from its own consultant, Bond County
concluded that the facility was necessary to accommodate the
wastes needs of the area
it was intended to serve.
The County
Board had an opportunity to consider BCCC’s assertions that
alternative facilities would be available at little or no
addi.tional expense to Bond County.
It also had an opportunity
to
consider what the probable life of the proposed facility might
be.
Tr.
at pp.
25—26,
123—124,
2 Tr.
at p.
21.
The County Board
concluded that the proposed facility
is necessary to serve the
waste needs of the area,
even though
it might have reached a
different conclusion.
The Board finds that Bond County’s
decision on criteria
1 has support in the record and is not
contrary to the manifest weight of the evidence.
117—126
—Il—
Criterion
2:
the facility is
so designed, located and proposed
to be operated that the public health, safety and welfare will be
protected.
Criterion
2 requires that the applicant demonstrate that the
proposed facility
is designed, located, and proposed to be
operated
in a manner
in which the public health,
safety, and
welfare
will
be
protected.
The
decision
maker,
here
the
County
Board,
has
the
duty
to
weigh
the
credibility
of
witnesses,
where,
as
in the present
case,
the expert testimony of more than one
witness
is presented.
See, Metropolitan Waste Systems,
Inc.,
Spicer
Inc.,
et
al.
v.
PCB,
146
Ill.
Dec.
822,
558
N.E.
2d
785
(3d Dist.
1990), ARF Landfill,
Inc.,
v.
PCB,
174 Ill. App.
3d 82,
528 N.E.
2d
390
(2d Dist.
1988).
BCCC argues that gas, leachate, and erosion problems create
a potential hazard to the public health,
safety, and welfare.
BCCC offered Agency reports of distressed and dying
trees
in this
connection.
BCCC also raised the issue of past violations and
fines
paid
by
D
&
L
in
support
of
its
position
that
the
facility
would
not
be
operated
consistent
with
criterion
2.
Tr.
at
pp.
54,
60—67,
2
Tr.
at
pp.
104—105,
131—139.
In response to concerns raised about gas,
D
& L’s engineer
testifed
that
detection
of
a
possible
escape
of
methane
gas
was
to be based only on observation of vegetation.
Tr. at pp.
35—36,
79—81,
119—120.
BCCC asserts that “there was no other detection
method proposed or considered by them...”
Bd.
Tr.
p.
7.
BCCC
argues that there is little or
no vegetation to monitor,
and
that,
therefore, the proposed detection method is inadequate.
Bd.
Tr. at p.
8;
Tr.
at 80—81.
BCCC also referred
to the testimony
of the County Board’s engineer, Mr. Moose, who found that the
detection system is “not adequate.”
“...I don’t believe that
there is any gas management plan collection detection system;
and,
I believe that one should be part of this expanded
facility.”
2 Tr.
at pp.
40,
64—65.
BCCC also challenges D
& L’s claims regarding health,
safety, and welfare based on possible groundwater contamination
from leachate.
Pet. at p.
7—9.
At hearing, BCCC stated that:
....the applicant,
through testimony of his engineer,
admited that there was leachate escaping from the site,
and there had been leachate escaping from the site for
some considerable years prior to this application.
***
....this is not a 10,
not a 20,
not a 50,
not
a 100
excessive presence of chloride, boron, and iron
contaminants
in
the area, but multiples of 7.4 and
multiple of
24 times, and a multiples of 3.6 times.
* **
With
regard
also
to
the
affect
on
the
environment
and safety of the public,
their engineer and the only
evidence that we had from the applicant, and only thing
117— 127
—12—
in the application was his admission that he made,
no
study,
and
I
repeat, no study.
That
is his own testimony and the only testimony on
behalf of the applicant with regard
to
the number and
the location or its proximity of the homes to this site.
Therefore
I think
it follows, the inevitable
conclusion,
that this is not part of the application,
it
is not
in the application, even though by law
it
is
required.
He also admitted he did not count the ground wells
at these home sites.
Bd. Tr.
at pp.
13—15.
(See also,
2 Tr. at pp.
84—86)
BCCC points to the testimony of D
& L’s engineer
that the
extent of the present leachate problem is unknown, and that,
further, D
& L’s application itself suggests that geologic
conditions may
be unfavorable for controlling the
leachar.e
problem.
Tr. at
p~
101,
2 Tr. at pp.
81—82.
BCCC further argues
that the County Board’s consultant stated that the application
did not present enough information on geologic formation,
groundwater,
wells and the containment berm to conclude that
groundwater would be protected.
Pet, at
p.
8—9,
2 Tr. at pp.
23—
41.
The County Board’s consultant raised many concerns regarding
contamination of area wells,
the lack of a liner,
the
effectiveness of the berm, and the area’s geology.
The Board
notes, however,
that he also stated that
“the little data that
is
in here
(on geology)
is conflicting.”
2
Tr.
at
p.
25.
D
& L’s engineer discussed at length the various aspects of
the proposed facility’s design and operating plan,
including
daily cover, the design of the berm and drainage plan, erosion
control, methane gas detection,
and monitoring wells, to support
its position that the facility would protect the public health,
safety, and welfare.
Tr.
pp.
69—82, 95—120.
Much of BCCC’s argument and the County Board’s consultant’s
testimony is directed at monitoring,
arresting, and remediating
the pre—existing leachate problem.
The apparent lack of
a liner
under the existing facility,
for example, does raise concerns for
the new facility, but primarily addresses a pre—existing
problem.
2 Tr. at
p.
27.
Similarly,
the erosion problems
relate
primarily
to the existing facility.
Pet.
at
p.
7,
2
Tr. at
pp.
31—34.
While the concerns expressed here may be relevant to an
enforcement action, the weight of this information is diminished
in the context of evaluating the design and operational aspects
of
the proposed facility.
Additionally,
“conflicting” evidence
is to be resolved by the local government, and not by this
Board.
ARF Landfill, Inc.,
v. PCB, 174 Ill. App.
3d 82,
528 N.E.
2d
390
(2d Dist.
1988).
117—128
—13—
The Board finds
that Bond County’s decision that D
& L
satisfied criterion
2 was not against the manifest weight of the
evidence.
The statute requires that the local government review
the design, location,
and operational features of the proposed
facility.
These matters were raised before the County Board.
Although the amount of detail left many questions unanswered for
the County Board’s consultant,
the decision ultimately
rested
with the County Board.
Furthermore,
the County Board should not
be required
to decide against D
&
L on the basis of prior
problems at
the site when the new facility is designed to protect
the public health,
safety, and welfare.
Based on the record before it, including exhibits depicting
location, height,
side views,
and monitoring wells,
the Board
finds that the County Board could reasonably decide that the new
facility was designed, located and proposed to be operated so
that the public health, safety and welfare will be protected.
The possibility that another decision could also have been
reached does not support reversal by the Board.
Criterion
3:
the facility
is located
so as to minimize
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property.
The applicant
is required to minimize the incompatibility of
the facility on the surrounding area and minimize the effect on
property values.
This requirement acknowledges that some effect
is likely.
However,
the applicant
is not required to choose the
best possible location or
to guarantee that no fluctuation
in
property values occurs.
Clutts
v. Beasley,
185
Ill.
App.
3d 543,
541 N.E.
2d 844,
846
(5th Dist.
1989).
BCCC argues that about 30 residents, some of whom may reside
within 1,000 feet of the site, plus those living
in a nearby
public housing project, would be adversely affected by D
&
L’s
alleged failure to minimize
incompatibility with the character of
the surrounding area and to minimize the effect on property
values.
Pet,
at p.
11, Tr.
at
p.
68,
2 Tr.
at pp.
82,
92.
BCCC
relies on the testimony of the County Board’s consultant,
who
stated that the planned operating hours appeared excessive
compared with other facilities and should be evaluated to decide
whether it creates a nuisance
in the surrounding area.
Pet.
at
p.
10,
2 Tr. at
p.
42.
In other respects the consultant
found
that the application did not give sufficient information
to draw
a conclusion regarding this criterion.
2 Tr.
at p.
41.
D
&
L seems to characterize the area as being much less
residential
in nature, making note of nearby agricultural uses,
and suggesting that a number of residents live farther from the
facility than BCCC indicates.
Tr.
at p.
21,
2 Tr. at
pp.
87—
91.
D
& L offered a letter from a local realtor opining that
property values would not be adversely affected.
2 Tr.
at
pp.
129—130 and D
& L Ex.
19.
D
&
L
also introduced evidence of a
home purchased near the landfill in 1989 and of
a home being
built
nearby.
2 Tr. at pp.
88—90.
117—129
—14—
The Board finds that the record offers limited information
on the issue of minimizing incompatibility with the surrounding
•area and the effect on property values.
The County Board clearly
was presented with conflicting views and evidence.
The Board
finds that the County Board could find sufficient evidence
in the
record to conclude that the proposed vertical expansion of the
existing landfill would pose only minimal impact on the
surrounding area and on property values.
The Board concludes
that the County Board’s decision with respect
to criterion
3
is
not against the manifest weight of the evidence.
Criterion
4:
the facility is located outside the boundary of the
100 year flood plain or the site is flood—proofed.
Criterion
4 requires that the facility is located outside
the boundary of the 100 year flood plain, or alternatively, that
the site
is flood—proofed.
In its petition, BCCC raises the
issue of
location within the flood plain, stating,
“he
(the
County Board’s consultant)
states that the existing facility was
constructed in the flood plane (plain).”
Pet. at p.
10, citing
2
Tr.
at p.
42.
BCCC has,
however, neglected to direct the Board’s
attention to the consultant’s immediately preceding sentence.
“I
don’t believe that this,
the vertical expansion is actually going
to occur in the flood plain in any location.”
2 Tr. at
p.
42.
The consultant also stated that,
“I see no plans
to do excessive
filling or any filling in the flood plain.”
2 Tr. at p.
43.
D
&
L’s engineer’s testimony also indicates that the proposed
facility
is not within the 100 year flood plain.
See Tr. at p.
50;
see also discussion at Tr.
at
p.
92,
The Board finds
that the decision of the County Board that
the facility is located outside the boundary of the 100 year
flood plain or that the site
is flood—proofed is not against the
manifest weights of the evidence.
Criterion
5:
the plan of operations
for the facility
is designed
to minimize the danger
to the surrounding area from fire,
spills,
and other operational accidents.
The proposed facility must minimize, but not necessarily
eliminate,
the possibility of danger from fire,
spills or other
accidents.
In support
of its position that this criterion was
satisfied,
D
& L offered the following testimony of its engineer:
Q.
Does the plan of operation of this vertical
expansion of this landfill,
is there any •danger
to
the surrounding area by way of fire or spills or
any other operational accidents?
A.
Everything is done to minimize the danger with the
use of essentially daily cover as one of the
primary means.
The containment berm that
is
constructed around there is another means,
diversion ditches.
So,
there are means
in place,
right.
117—130
—15—
Tr.
at p.
50.
These statements were supported with more extensive testimony on
cover requirements, the containment berm, and the drainage
systems.
Tr.
at pp.
22—45.
D
& L’s engineer also stated the
following in closing comments at the second County Board hearing:
We submit that the proposed vertical expansion
doesn’t change the present condition.
The facility
is operated just as
it was before.
There is no
greater cause for alarm
for fire, spills or
accidents than there ever has been at the
landfill.
And, we submit that there
is the design
as such is not shown to be hazardous to anybody’s
health by reason of fire,
spills and hazardous
mater ia1.
2 Tr.
at p.
130.
The County Board’s consultant commented on the lack of
a
separate,
formal plan to minimize the danger from fire,
spills,
and accidents:
“Based on my review of the submitted information,
I did find no spill reaction plan,
no accident prevention plan or
fire prevention plan or protection plan.”
2
Tr. at p.43—44.
He
further testified that there is
a potential for fires
or
explosion from gas releases, and fires, explosions or
accidents
could occur.
2 Tr.
at pp.
66—67,
see also
2 Tr. at p.
83.
Bond County concluded that D
& L carried its burden with
respect to criteria 5’s fire, spills, and accident issues.
The
Board finds
that Bond County’s decision has support
in the
record, and is not contrary to the manifest weight
of the
evidence.
The evidence submitted for the County Board’s review
included extensive testimony and various exhibits, such as the
application,
a groundwater monitoring program, and hydrogeologic
report.
The Board finds that the absence of a separate document
labelled as a spill reaction, accident prevention,
or fire
prevention plan does not warrant reversal by this Board where, as
here,
the record includes sufficient evidence on this criterion.
Criterion
6:
the traffic patterns
to or
from the facility are so
designed as to minimize the impact on existing traffic flows.
D
& L has a statutory obligation to minimize the traffic
impact of the proposed facility, but that obligation has not been
construed to mean that D
& L must eliminate any additional
traffic impact.
See, Fairview Area Citizens Taskforce v.
IPCB,
144 Ill. Dec.
659,
555 N.E.
2d 1178,
1186
(3d Dist.
1990).
BCCC asserts that D
&
L failed to satisfy the requirement
that the traffic impact be minimized because D
& L’s engineer
simply asserted that the traffic flow would remain essentially
unchanged.
Bd. Tr. at
p.
13.
BCCC argues that since D
& L’s
engineer testified that the cubic yards of waste would increase
117—13 1
from the previous 44,992 to cu.
yds. per year,
a plan to minimize
the traffic impact should have been included, but was not.
Bd.
Tr.
at p.13.
BCCC notes that the County Board’s consultant
commented that a detailed traffic study was not part of the
original application.
Pet.
at pp. 10—11,
citing
2 Tr. at p.
44.
BCCC’s witness, Mr. Hediger
(also a petitioner), testified
that the roadway is not wide enough to handle the truck traffic
and that the entrance is via very narrow pavement.
He asserted
that traffic conditions are very dangerous.
2 Tr.
at pp.
83—84.
At hearing, D
&
L’s engineer testified that the traffic flow
is expected to be essentially unchanged.
Tr. at
p.
51.
He also
referred to the Illinois Department of Transportation,
1985
Survey on traffic.
Average daily traffic counts ranged from 850
—
5,800 cars or trucks per day on the pertinent roadways.
Tr. at
p.
51.
The County Board found traffic impacts to be minimal, based
on the application before it, and presumably based on the Board
members’
own knowledge and familiarity with local traffic
conditions.
See PCB 90—94, Bond County Concerned Citizens
v.
D
&
L Landfill,
Inc., August 30,
1990.
Based on the minimal traffic
information provided
in the record,
the Board finds that Bond
County’s decision was not against the manifest weight
of
the
evidence.
As
in the case of A.R.F.
Landfill,
Inc.
v.
IPCB and
Lake County,
174 Ill.App.3d 82,
528 N.E.2d 390
(2d Dist.
1988),
affirming the Board’s decision in PCB 87—51,
the local government
is in the best position to weigh conflicting evidence.
The Board
will not substitute its
judgment in such a circumstance.
See
also McHenry County Landfill,
Inc.
v.
IPCB,
154 Ill.App.3d 89,
506 N.E.2d
372,
381
(2d Dist.
1987), affirming the PCB and the
county board’s conclusion regarding traffic.
Criterion
8:
if the facility is to be located
in a county where
the county board has adopted
a solid waste management plan,
the
facility
is consistent with that plan.
Bond County’s consultant indicated at the County hearing
that Bond County has not completed a Solid Waste Management Plan,
and that therefore, this criterion is not applicable.
2 Tr.
at
p.
44.
Similarly,
D
& L’s consultant testified that criterion
8
would not be an issue.
Tr.
at p.
51.
This Board concludes that
the County Board’s decision is not against the manifest weight of
the evidence with respect to the requirement that the proposed
facility be consistent with the area’s local Solid Waste
Management Plan.
Criterion
9:
if the facility will be located within a regulated
recharge area, any applicable requirements specified by the Board
for such areas have been met.
As was the case with criterion
8, Bond County’s consultant
testified at hearing that there is no regulated recharge area
in
the vicinity of this facility.
2 Tr.
at p.
44.
D
& L’s engineer
testified the same.
Tr.
at
p.
51.
The Board
finds no evidence
that the facility will be located within
a regulated recharge
117—132
—17—
area for which the Board would have issued applicable
requirements.
The Board finds that the County Board’s decision
is not against the manifest weight of the evidence with respect
to this criterion.
Conclusion
For the above-stated reasons, the Board finds that the
decision of the Bond County Board of Supervisors, Bond County,
Illinois granting approval to D
& L Landfill,
Inc.
for a regional
pollution control facility pursuant to the statutory requirements
of Section 39.2(a) of the Act was not against the manifest weight
of the evidence.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby affirms the decision of the Bond County
Board of Supervisors, County of Bond,
Illinois, granting site
location suitability approval for a regional pollution control
facility to D
& L Landfill,
Inc.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
ch. l1l~,par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member
J. Dumelle dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cer~ifythatthe ab~pveOpinion and Order was
adopted on the
~7~5Z4
day ~
,
1990,
by a
voteof
~.—/
~
~7.
4~
Dorothy M. Gy4~h,Clerk
Illinois Poll.ótion Control Board
117—133
