ILLINOIS POLLUTION CONTROL BOARD
December 16, 1993
LARRY
SLATES, LONNIE
)
SEYMOUR, JAMES KLABER,
FAYE NOTT, and HOOPESTON
COMMUNITY MEMORIAL HOSPITAL,
Petitioners,
v.
)
PCB 93—106
(Landfill Siting Review)
ILLINOIS LANDFILLS, INC., and
HOOPESTON CITY COUNCIL, on
behalf of the CITY OF
HOOPESTON,
)
Respondent.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on two motions to
reconsider. On October 25, 1993, respondent the City of
Hoopeston (Hoopeston) filed its motion to reconsider. Respondent
Illinois Landfills, Inc. (ILl) filed its motion to reconsider on
October 27, 1993. On November 18, 1993, petitioners Larry
Slates, Lonnie Seymour, James Klaber, Faye Mott, and Hoopeston
Community Memorial Hospital (collectively, petitioners) filed
their response in opposition to both motions to reconsider.
Both motions ask that the Board reconsider our September 23,
1993 decision reversing Hoopeston’s grant of siting approval to
ILl. The Board, with one member dissenting, found that
Hoopeston’s decision on criterion one did not comport with the
requirements of Section 39.2(a) of the Environmental Protection
Act (Act). (415 ILCS 5/39.2(a) (1992).) Hoopeston’s written
decision stated that “the facility is necessary to accommodate
the waste needs of the City of Hoopeston and the Vermilion County
Area”, while the statute requires that the local decisionmaker
consider whether the proposed facility is necessary to
accommodate “the waste needs of the area it is intended to
serve.” (Emphasis added.) Because it was uncontested that the
proposed service area is a 31—county area in Illinois and Indiana
(Tr. at 26; C439), the Board held that Hoopeston’s decision is at
odds with the requirements of Section 39.2. The Board found that
remand was inappropriate, and that Hoopeston’s decision must be
reversed. (Slates v. Illinois Landfills. Inc. (September 23,
1993), PCB 93—106, slip op. at 19—21.)
In ruling upon a motion for reconsideration the Board is to
consider, but is not limited to, error in the decision and facts
in the record which may have been overlooked. (35 Ill. Adm. Code
101.246(d).) In Citizens Against RecTional Landfill v. County
2
Board of Whiteside County (March 11, 1993), PCB 93-156, we stated
that
~‘
t)he intended purpose of a motion for reconsideration is
to bring to the court’s attention newly discovered evidence which
was not available at the time of hearing, changes in the law or
errors in the court’s previous application of the existing law.
(Koro~luyanv. Chicago Title & Trust Co. (1st Dist. 1992), 213
Ill.App.3d 622, 572 N.E.2d 1154, 1158.)” We grant both motions
to reconsider so that we can address several arguments made by
Hoopeston and ILl. However, we reaffirm our September 23, 1993
opinion and order finding that Hoopeston’s decision must be
reversed.
Both Hoopeston and ILl contend that the Board should remand
this matter to Hoopeston so that Hoopeston can clarify its
decision. Hoopeston states that it “intended to approve the
service area as defined by the applicant.” (Hoopeston motion at
2.) Hoopeston contends that a reversal of its decision punishes
it by “refusing to recognize the hard work and substantial
resources committed to the review of complicated materials, the
time devoted to taking and weighing the evidence and the care
with which (Hoopeston) decided at least eight of the nine
statutory points.” (Hoopeston motion at 2.) Hoopeston argues
that reversal does not end the matter for it, as the applicant is
very likely to re—apply for site approval. Hoopeston maintains
that a remand for clarification would preserve Hoopeston’s effort
in rendering a decision on eight criteria, and would allow
Hoopeston to correct the decision to reflect its intention to
find that ILl had established a need for the intended service
area.
Initially, the Board states that we are sympathetic to the
effort invested by Hoopeston in this process. However, the Board
has a statutory obligation, set forth in Section 40.1 of the Act,
to review Hoopeston’s decision to determine whether it complies
with the requirements of Sections 39.2. In this case, we
concluded that the decision did not comply with the requirements
of criterion one of Section 39.2(a). The fact that Hoopeston
spent a great deal of effort in this process, or that its
decision complied with the statute on eight of nine criteria does
not change the fact that the decision on criterion one does not
comply with statutory requirements. The Act clearly states that
local siting approval shall be granted only if the proposed
facility meets all of the statutory criteria. Thus, the Board
can only affirm local decisions where we uphold all of the
applicable statutory criteria.
As to Hoopeston’s request that the matter be remanded so
that it may “correct” its decision to reflect its intent, we
reiterate that Sections 39.2 and 40.1 require that the local
decisionmaker set forth its decision in writing, and that this
Board review that written decision. We know of no authority
which would allow us to consider a local decisionmaker’s intent,
3
as opposed to the written decision issued by that decisionmaker.
The Board believes that allowing a decisionmaker to “correct” its
written decision to comply with an “intent” articulated after
appeal of a local decision would lead to chaos. All persons
involved in a local siting process should be able to rely on that
written decision as the final expression of the local
decisionmaker’ s findings.
ILl also contends that this matter should be remanded to
Hoopeston, and asserts that a remand is consistent with
principles that have guided this Board and the appellate courts
in reviewing landfill siting cases. ILl points to the Board’s
decision in Land & Lakes Co. v. Villa~eof RoiTteoville (December
6, 1991), PCB 91-7, where the Board ordered a remand for
clarification. ILl contends that remand is “even more necessary”
in this case than in Land & Lakes, because in this case,
Hoopeston found that the facility was necessary to serve
Hoopeston and the Vermilion County area, as contrasted with Land
& Lakes, where the decisionmaker found that the facility was not
necessary. ILl also maintains that even if it were true that
Hoopeston intended to alter the service area, reversing that
decision would allow local decisionmakers to deny applications by
amendment. ILl argues that Hoopeston’s error should not result
in prejudice to the applicant.
We are not persuaded by ILl’s claims that remand is even
more appropriate in this case than it was in Land & Lakes. As we
discussed in our September 23 opinion in the instant case, we
have remanded cases where we have found a violation of
fundamental fairness, where the local decisionmaker voted on only
one criterion, and where, as in Land & Lakes, we were unable to
determine whether the local decisionmaker denied the siting
request, or approved the request with conditions. None of these
situations are present in this case. Hoopeston clearly found, in
its written decision, that the proposed facility was necessary
for only a portion of the proposed service area. There is no
ambiguity in that written decision, and thus remand is
inappropriate.
It is true that in this case ILl, as the applicant, is
negatively affected by the reversal of Hoopeston’s decision.
However, we know of no authority which would allow us to reach
any other conclusion but the conclusion reached in our September
23 opinion: that Hoopeston’s decision, which does not comport
with the statutory requirements of Section 39.2(a), must be
reversed. The Board has an obligation to review the entire local
decisionmaking process. Sometimes a finding that a local
decisionmaker erred may work in favor of an applicant (as in the
case of a failure to make a timely decision pursuant to Section
39.2(e)), while other times such a finding may work in favor of
objectors to the siting. The Board’s statutory responsibility is
to review the process and decision pursuant to the scheme
4
established by the legislature, and we find that we have done so
in this case.
In the alternative, ILl contends that the Board should
simply affirm Hoopeston’s original siting approval. ILl claims
that Metropolitan Waste Systems. Inc. v. Pollution Control Board
(3d Dist. 1990), 201 Ill.App.3d 51, 558 N.E.2d 785, does not
apply to this case. We are not persuaded by ILl’s attempts to
distinguish Metropolitan Waste, and note that our decision that
Hoopeston’s finding on criterion one did not comport with the
statutory requirements was based only in part on Metropolitan
Waste.
In sum, the Board reaffirms our September 23, 1993 decision
that Hoopeston’s decision on criterion one did not comport with
the statutory requirements of Section 39.2, and that reversal,
not remand, is the proper remedy.
IT IS SO ORDERED.
R. Flemal dissented, and M. McFawn abstained.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
/(r/~ day of
______________,
1993, by a vote of
5-/
Control Board