ILLINOIS POLLUTION CONTROL BOARD
June 30, 1988
GERALD CLUTTS,
Petitioner,
v.
)
PCB 88—43
HERMAN
L. BEASLEY,
)
Respondent,
and
ALEXANDER COUNTY BOARD OF
COMMISSIONERS,
Co—Respondents.
MR. STEVEN D. APPLEGATE, OF APPLEGATE AND MAURIZIO, APPEARED ON
BEHALF OF THE PETITIONER
MR. MICHAEL P. O’SHEA, JR., ATTORNEY AT LAW, APPEARED ON BEHALF
OF THE RESPONDENT, BEASLEY
MR. MARK H. CLARKE, STATE’S ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT, ALEXANDER COUNTY BOARD
OPINION AND ORDER OF THE BOARD (by Michael Nardulli):
This matter comes before the Board on a March 4, 1988
petition to contest granting of site approval, filed by Gerald
Clutts. The petition seeks review of a February 4, 1988 decision
of Respondent Alexander County Board of Commissioners and
granting site approval of Respondent Herman L. Beasley’s proposed
non—hazardous waste landfill to be located on Mr. Beasley’s
property. The Board held a public hearing on this petition for
review was held on April 29, 1988 in Cairo, Alexander County.
Mr. Beasley submitted an application for siting approval of
a non—hazardous solid waste landfill to be located in Alexander
County, Illinois. The landfill is proposed for an eighty—three
(83) acre site in Thebes, Alexander County. Twenty (20) acres
will be used for landfill. The Alexander County Board held
public hearing on the application on January 29, 1987 and
December 17, 1987. The Alexander County Board approved the
application on February 4, 1988 by a vote of 2 to 0 and site
approval was granted.
The Petitioner filed a motion to strike the Respondent
Beasley’s and Co—Respondent Alexander County Board of
Commissioner’s briefs because they failed to hand deliver the
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briefs to the Petitioner’s counsel by May 17, 1988 as required by
the hearing officer at the Board’s April 29, 1988 hearing. The
briefs were instead mailed to the Petitioner’s counsel on May
27. The Petitioner did not receive the briefs until May 31
—
four days after it was due. That allowed the Petitioner less
time to prepare his reply brief which was to be filed by June 6,
1988.
To remedy this situation, the hearing officer issued an
order giving the Petitioner leave to file his reply brief
instanter on or before Friday, June 10, 1988. This action
corrects any compromise of Petitioner’s situation that resulted
from the late filing by the Respondents. Consequently the
Petitioner’s motion is denied.
Statutory Framework
At the local level, the site location suitability approval
process is governed by Section 39.2 of the Act. Section 39.2(a)
provides that local authorities are to consider six criteria when
reviewing an application. The six criteria are:
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 as
determined by the Illinois Department of
Transportation or the site is floodproofed
to meet the standards and requirements 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 from fire, spills, or
other operational accidents; and
6. the traffic patterns to or from the
facility are so designed as to minimize
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the impact on existing traffic flows.
Section 40.1 of the Act charges this Board with reviewing
the County Board’s decision. Specifically, this Board must
determine whether the County Board’s decision was contrary to the
manifest weight of the evidence, and whether the procedures used
at the local level were fundamentally fair. E&E Hauling, Inc. v.
Illinois Pollution Control Board, 116 Ill. App. 3d 586, 451 N.E.
2d 555 (2nd Dist. 1983), aff’d in part 107 Ill. 2d 33, 481 N.E.
2d 664 (1985); City of Rockford v. IPCB, 125 Ill. App. 3d 384,
386, 465 N.E. 2d 996 (1984); Waste Management of Illinois, Inc.,
v. I?CB, 122 Ill. App. 3d 639, 461 N.E. 2d 542 (1984). The
standard of manifest weight of evidence is:
A verdict is
...
against the manifest weight
of the evidence where it is palpably
erroneous, wholly unwarranted, clearly the
result of passion or prejudice, or appears to
be arbitrary, unreasonable, and not based upon
the evidence. A verdict cannot be set aside
merely because the jury County Board could
have drawn different inferences and
conclusions from conflicting testimony or
because a reviewing court IPCBI would have
reached a different conclusion
..
When
considering whether a verdict was contrary to
the manifest weight of the evidence, a
reviewing court IPCB must view the evidence
in the light most favorable to the appellee.
Steinberg v. Petra, 139 Ill. App. 3d 503, 508
(1986).
Consequently, if after reviewing the record, this Board
finds that the County Board could have reasonably reached its
conclusion, the County Board’s decision must be affirmed. That a
different conclusion might also be reasonable is insufficient;
the opposite conclusion must be evident. (See Willowbrook Motel
v. IPCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist. 1985)).
The Petitioner challenges the County Board’s decision in the
matter because the County Board failed to make a written decision
specifying the reasons for the decision as required by 39.2(e) of
the Act. The Petitioner also challenges the County Board’s
finding that criteria one, two, three, five and six from Illinois
Revised Statute Chapter ll11/~, 1039.2(a) were met. No challenge
is made regarding criterion four.
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FUNDAMENTAL FAIRNESS
The Board is charged with deciding whether the County
Board’s decision was contrary to the manifest weight of the
evidence and whether the procedures used at the local level were
fundamentally fair. The Respondent makes no direct argument
challenging the County Board’s procedures or the basis for the
decision. In a review of the record, the Board finds the
procedures employed by the County Board to be fundamentally
fair. The procedures included public hearings in front of the
County Board. Anyone interested was given an opportunity to
testify or present witnesses and evidence. The Petitioner was
represented by counsel and given an opportunity to examine or
cross—examine any of the participating parties. There is no
indication that the Petitioner was not given the opportunity to
present his complete argument against the landfill or completely
exhaust his legal rights.
The Petitioner argues that the decision of the County Board
should be reversed because the Respondent Beasley failed to cause
written notice of his request for site location approval to be
served on the owners of all property within 250 feet in each
direction of the lot line of subject property, and upon the
appropriate members of the General Assembly, within the time
limits established in the Illinois Environmental Protection Act,
Ill. Rev. Stat. 1987, ch. 1l3~1-/2par. 39.2(b). Section 39.2(b)
provides for actual notice to members of the General Assembly and
other interested persons “(n)o later than fourteen days prior to
a request for location approval....” Petitioner suggests that
Respondent Beasley erred by informing these interested parties
fifteen days in advance of filing his application for approval of
a new pollution control facility, rather than fourteen days or
less therefrom.
Neither the courts nor the Board construe this Section in
the same manner as the Petitioner. It is more reasonable to
maintain that the Section is intended to allow interested parties
more notice of the hearing rather than less. Browning Ferris
Industries v. IPCB, 154 Ill. App. 3d 89, 506 N.E.2d 372 (5th
Dist., 1987) The Board finds that the Section should be read to
require, the applicant to notify the effected parties at least
fourteen (14) days prior to requesting approval.
The Petitioner maintains that the decision by the Co—
Respondent County Board was in violation of Section 1039.2(a)
because the County Board failed to make a written decision
specifying the reasons for the decision. While The County Board
did issue a written decision in this matter (Ex3—9), the
Resolution did not specify the reasons for the decision.
Although the statute does require the County Board to make
written decisions which specify the reasons for its decisions,
“such reasons to be in conformance with subsection (a) of this
Section” (Ill. Rev. Stat. 1981, ch. ll~1/~ par. 1039.1(e)), the
statute does not require a detailed examination of the evidence
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or a review of the County Board’s decision process. The Courts
have interpretted this language to mean that the County Board
need only indicate that the criteria have or have not been met.
This writing will be sufficient if the record supports these
conclusions so that an adequate review of the County Board’s
decision may be made. A detailed explanation of the relation
between the conclusions and the criteria is not necessary. E&E
Hauling, Inc. v. Illinois Pollution Control Board, 116 Ill. App.
3d 586, 451 N.E.2d 555 (2nd Dist. 1983), Aff’d in part 107 Ill.
2d 32, 481 N.E.2d 664 (1985). The Board holds that the evidence
supports that decision.
STATUTORY CRITERIA
The Board also does not find that the decision of the County
Board was contrary to the manifest weight of the evidence. The
case presented by Respondent Beasley included his own testimony
concerning the need for a landfill, the testimony of the engineer
designing the landfill and the testimony of two residents who
maintained that a landfill was required. The Petitioner and
another resident testified against the landfill and were given an
opportunity to cross—examine the Respondent’s witnesses, question
members of the County Board and submit questions after the first
hearing. On review, the decision of the County Board appears
consistent with the manifest weight of the evidence and clearly
meets the minimum standard of not being contrary to the manifest
weight of the evidence.
As previously noted, the Petitioner contests the decision of
the County Board under 39.2(a) of the Act. Because the decision
of the County Board must satisfy each of these requirements
independently, these arguments will be addressed individually:
1039.2(a) Criterion One
The first criterion the County Board needed to consider is
whether the facility is necessary to accommodate the waste needs
of the area it is intended to serve. The Petitioner maintains
that this criterion was not met but fails to elaborate on his
contention by providing references to the record to support the
contention. In a petition of this nature, it is the Petitioner
that assumes the burden of proving that the decision of the
County Board was in error. This Board has previously stated that
“wihere 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”. Valessares v.
The County Board of Kane County, 79 PCB 106, 125 (PCB 87—36; July
16, 1987). Nevertheless, the Board has reviewed the arguments of
both parties and the record. Based upon the review, the Board
finds that the County Board’s decision on criterion one was not
against the manifest weight of the evidence. Therefore, the
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County Board’s decision on criterion one is upheld.
Beasley testified that the landfill was needed in the area
because the closest landfill, in Mounds, Illinois, was open only
from 10:00 a.m. to 3:00 p.m., five days a week and the
alternative dump was located in Mayfield, Kentucky (Tl at 5)*.
Further, two residents of Thebes, who live along Route 1,
testified that the development of a landfill in the area would
alleviate some of the areas solid waste problems. (Tl at 16—
19). There was no evidence presented to show that a landfill was
not required. This Board finds that the Alexander County Board
could have reasonably concluded that the facility is necessary to
accommodate the waste needs of the area it is intended to serve.
Criterion Two
The second criterion to be considered by the County Board is
whether the proposed facility is so designed, located and
proposed to be operated that the public health, safety and
welfare will be protected. The Petitioner contends that this
criterion was not met, but again fails to carry the burden of
proof that the determination is in error. The Board’s review of
the record and arguments shows that the Respondent has employed
an experienced landfill design engineer who states he has
designed the proposed landfill in compliance with the standards
set for non—hazardous waste landfills by the Illinois
Environmental Protection Agency (TI at 6—11, T2 at 2—9). The
engineer was examined by members of the County Board (Tl at 11-
16, T2 at 9—12) and was cross—examined by the Petitioner (Tl at
21—28, T2 at 20—29). Based upon the review, the Board finds that
the County Board’s decision on criterion two was not against the
manifest weight of the evidence. Therefore, the County Board
decision on criterion two is upheld.
Criterion Three
The third criterion set forth in Section 39.2 is whether the
facility is located so as to minimize incompatibility with the
character of the surrounding area and to minimize the effect on
*
Citations from the transcripts of the Alexander County Board
meeting on January 29, 1987 will be identified as “Tl—_______
Exhibits from the Alexander County Board meeting will be
designated as “Ex 1—
_________“.
Citations from the transcripts
of the Alexander County Board meeting of December 17, 1987 will
be identified as “T2
—
“.
Exhibits from the December
17, 1987 Alexander County Board meeting will be designated as “Ex
2
—
“.
The citations and exhibits from the Pollution
Control Board hearing on this petition will be identified as “T3
—
and Ex 3
—
“
respectively.
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—7—
the value of the surrounding property. The Petitioner argues
that the proposed facility does not meet this criterion.
Petitioner contends that the area surrounding the proposed site
is agricultural and residential in nature and is devoid of
industrial influences. The Petitioner further maintains that the
landfill could result in polluted water in the stream and
underground. This water is presently the source of the
Petitioner’s potable water and the water used by his cattle (Ti
at 19, T2 at 19). The Petitioner also expressed concerns about
the odor from the landfill (T2 at 20) and presented an affidavit
from the Chairman of the Board of a bank which indicates that the
value of the Petitioner’s land would go down if the landfill is
permitted. (EX 2—1). The Petitioner, and other landowners
testifying at the hearing, requested that they be given
assurances against the loss of land value and the contamination
of their water, either by the Respondent Beasley or the County
Board (Tl at 20). The Petitioner also maintains that there are
better locations on which the landfill should be built.
While the Respondents could not give the Petitioner
assurances to prevent the contamination of their water or the
loss of property value, the testimony of the engineer supplies a
basis for the County Board’s decision. The design engineer
testified that the landfill was designed, located and proposed to
be operated in compliance with Illinois Environmental Protection
Agency standards.
The Board also points out that the statute requires that the
location of the facility minimize incompatibility and effect on
property values. That language should not be read to ask whether
there is a “better” location for the facility. The Petitioner
has failed to show that the landfill site was selected without
attempting to minimize incompatibility in this case. Based upon
the review, the Board finds that the County Board’s decision on
criterion three was not against the manifest weight of the
evidence. Therefore, the County Board’s decision on criterion
three is upheld.
Criterion Five
Criterion five of Section 39.2 requires that the plan of
operations for the facility is designed to minimize the danger to
the surrounding area from fire, spills, or other operational
accidents. Petitioner argues that the County Board does not have
any guarantees that the facility will be operated correctly (Ti
at 20).
Again, however, the testimony of the design engineer
supplies the basis for the County Board’s decision. The engineer
states that I.E.P.A. standards will be followed, groundwater will
be monitored, daily cover will be supplied and the compliance
will be ensured by routine inspections by the Illinois
Environmental Protection Agency. While the evidence at hearing
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may not have answered all of the concerns of the Petitioner and
other residents, the County Board’s decision was not contrary to
the manifest weight of this evidence. It is also important to
note that no evidence was introduced by the Petitioner
identifying operational problems that might exist. Based upon the
review, theBoard finds that the County Board’s decision on
criterion five was not against the manifest weight of the
evidence. Therefore, the County Board’s decision on criterion
five is upheld.
Reference also was made to an Agency inquiry letter which
resulted in Beasley voluntarily covering and sowing trash he had
dumped on his property on May, 1986. However, information on
past violations are not to be considered in the decision of the
County Board for landfill siting cases.
**
Watts
v.
City of
Rock Island, PCB 83—167, slip opinion at 18, March 8, 1984.
Criterion Six
The final criterion applicable to this case is whether the
traffic patterns to and from the facility are so designed as to
minimize the impact on existing traffic flows. The Petitioner
expressed concern about the effect that the proposed landfill
will have on traffic (Ti at 20). It was also noted that Beasley
has not filed any traffic impact study (Tl at 46) and has not
made any arrangement to maintain the road to the landfill (T2 at
37). Beasley states that he intends to haul from three to to six
truckloads a day to the dump (T2 at 38). The road being used by
Beasley’s trucks is presently being used by timber trucks, LP gas
trucks, grain trucks, farm trucks and cars, as well as by Mr.
Beasley’s trucks and the trucks of other trash disposal companies
(Ti at 47—49).
Again, as with all of the other criteria under 39.2(a), the
Petitioner has failed to meet his burden of proving that the
County Board’s decision was against the manifest weight of the
evidence regarding traffic. While the residents of the area
expressed concern about the change in traffic patterns, the only
testimony of any change was that up to six (6) of Mr. Beasley’s
trucks would go to the landfill each day. Based on this
evidence, the County Board could fairly conclude that the impact
on traffic would be minimal. The request for Beasley to maintain
the road is inappropriate under this criteria, and need not be
**The Board notes that the following language effective July 1,
1988 has been added to Section 392 of the Act.”The county board
or the governing body of the municipality may also consider as
evidence the previous operating experience and past record of
convictions or admissions of violations of the applicant (an any
subsidiary or parent corporation) in the field of solid waste
management when considering criteria (ii) and (v) under this
Section.”
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addressed. Based upon the review, the Board finds that the County
Board’s decision on criterion six was not against the manifest
weight of the evidence. Therefore the County Board’s decision on
criterion six is upheld.
This Opinion constitutes the Board’s finding of facts and
conclusions of law in this matter.
ORDER
The February 4, 1988 decision of the Alexander County Board
granting site location suitability approval to Herman L. Beasley
is hereby affirmed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, ch. ll3~/2par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rule of the Supreme
Court of Illinois establish filing requirements.
Board Member J. Marlin concurred.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov Opinion and Order was
adopted on the .~fo~tz day of
___________________,
1988, by a
vote of 7—0
.
Ill
on Control Board
90—515