ILLINOIS POLLUTION CONTROL BOARD
January
9,
1986
CONCERNED NEIGHBORS FOR A
BETTER ENVIRONMENT
& WILLIA~1
SCAVARDA,
Petitioners,
PCB 85—124
COUNTY OF ROCK ISLAND and
)
BROWNINS—FERRIS INDUSTRIES
of IOWA,
INC.,
Respondents.
MR. JAdES
I’OHO APPEARED
ON BEHALF OF THE PETITIONERS.
MR. DENNIS
M.
FAUST APPEARED ON BEHALF OF THE COUNTY OF ROCK
ISLAND,
MR.
FRANKLIN
S.
~~ALLACEAND MR. FRED
C. PRILLAMAN APPEARED ON
BEHALF OF BROWNING—FERRIS INDUSTRIES.
OPINION AND ORDER OF THE BOARD (by R.C.
Flemal):
This matter comes before the Board upon the August
20,
1985
appeal by Concerned Neighbors
for
a Better Environment and
William Scavarda from a July 16,
1985 decision of the Rock Island
County Board
(“County Board”).
On that date the County Board
approved
an application
filed by Browning—Ferris Industries
of
Iowa,
Inc.
(“BFI”)
for approval
of the site location suitability
for
a new regional pollution control facility
to be located in an
unincorporated area
of Rock Island County.
For
the reasons
discussed below,
the Board
finds that the County Board hearing
was conducted
in
a fundamentally fair manner
and that the
decision
of the County Board
is
supported under
a manifest weight
standard
of review of the evidence presented at hearing below.
Therefore,
the Board affirms the approval granted by the County
Board
to BFI’s application for the siting of
a new regional
pollution control facility.
Since
there
are
a number
of Petitioners and Respondents
involved
in this matter,
they will be clearly identified
at the
outset.
Concerned Neighbors for
a Better Environment
is an
Illinois non—profit corporation founded by Rock Island County
citizens ~ho are concerned about waste disposal practices.
William Scavarda
is
a resident near BFI’s facility.
Both
Petitioners participated
in the proceeding before the County
Board.
The Respondents
in this matter are BFI and the County of
Rock Island;
Section 40.1(b)
of the Act requires that
in
an
67-427
—2—
appeal from a local governing body’s approval of
an application
for the siting of
a new regional pollution control facility,
the
local governing body and the applicant be named
as co—
respondents.
Hearing on BFI’s May 20,
1935 application was held before
the County Board on June 18, 1985,
and that body rendered its
decision approving the application
on July 16,
1985.
Petitioners
appealed this decision
to the Board on August
20,
1985.
On
August
21, 1985 the Board accepted the case and authorized
it for
hearing, and ordered the County Board
to prepare and file the
record on appeal.
SF1 filed
a motion on September
3,
1985,
requesting
that the Board require Petitioners
to
file
a statement
specifying the deficiencIes
in the proceedings held below.
The
Board granted this motion by Order dated September
20, 1985.
The
Rock Island County Clerk
filed
the record on September
30, 1985.
Petitioners filed
a supplemental petition on October
17,
1985
in response
to the Board’s Order.
BFI moved
to strike the
supplemental petition on October
21,
1985,
and Petitioners
responded
to this motion on October
23,
1985,
By Interim Order
of October
24,
1985,
the Board denied the motion
to strike but
required Petitioners
to file at hearing
a written specification
elaborating on the allegations made
in their October
17
supplemental petition.
This document was submitted by
Petitioners at the October
29,
1985 hearing.
SF1 filed
a post—
hearing brief on November
8,
1985.
No other briefs were filed.
On
December
9,
1985 SF1 waived the time for decision
in this
matter until January 17, 1986.
Cases such as this one which involve appeals from local
governmental decisions on the siting of new regional pollution
control facilities
(referred
to as
“S.B.
172” cases)
involve two
main
issues:
~Thetherthe procedures used by the local governing
body in reachin3 its decision were “fundamentally fair”,
and
whether
the local governing body’s decisions on the six statutory
criteria of §39.2 of the Act are supportable under the manifest
weight of the evidence standard of review,
These issues will be
addressed in that order.
It should be noted that BFI’s application requests approval
to expand the height and depth of
its existing facility beyond
the originally permitted vertical contours,
thus increasing
disposal
capacity.
The difference
in thickness of
the
landfilling between the site as
it currently exists and the
proposed plan
is
a maximum of twenty feet, most of which appears
to be accomodated by an
increase
in the final surface elevation
of
the fill (County Board hearing,
R.
at 71—72),
BFI’s
application seeks siting approval
of
a “new”
regional pollution
control
facility, notwithstanding the fact that BFI already
operates
a facility on the same site.
This occurs because the
Board has construed §3(x)
of the Illinois Environmental
Protection Act (“Act”), which defines
a new regional pollution
control facility,
as applying
to increases the waste disposal
67-428
—3—
capacity of
a site in any direction beyond the dimensions
contemplated
by
the
current permit.
See
M.I.G.
Investments,
Inc.
v.
Illinois Environmental Protection Agency,
POE 85—60,
August
15,
1985.
Fundamental Fairness
Petitioners allege that the hearing held below was
fundamentally unfair due to testimony given by two of
Respondents’ witnesses which referred
to prior Agency aoproval of
the site
(County Board hearing,
R.
at
11,
12,
39,
43,
93—95, 101-
102, 106—107).
Petitioners contend
that
this reference was made
“as and for proof
that the proposed facility complies with
Criteria
2 and
5”, and consequently “as reason
for approval by
tfte
County Board”
(document entitled Specification of Rulings of
Hearing Officer Challenged
by Petitioners,
at
1
and
2;
filed with
the Board November
4,
1985).
However,
“fundamental fairness”
as described
in §40.1 refers
to the procedures used by the County Board
in reaching its
decision,
not
to the evidence
or lack thereof presented before
it.
“Fundamental
fairness”
as used
in §40.1 of the Act creates
a
statutory due process standard, which has been construed
as
requiring application of adjudicative due process
in S,B.
172
proceedings.
B
&
B Hauling
v. Pollution Control Board,
116 Ill.
App.
3d
536,
608,
451
N.E.
2d 555
(2d Diet.
1933).
The Board
finds that the procedures used below provided adjudicative due
process,
and that Petitioners’ allegations are
of insufficient
weight to warrant
a finding that the County Board proceeding
lacked fundamental fairness.
Petitioners
do correctly point out that
a local governing
body
is
required
to make an independent assessment of the merits
of
a new regional pollution control facility by applying the six
statutory criteria found
in §39.2
of
the Act
(document entitled
Specification of Rulings of Hearing Officer Challenged by
Petitioners,
filed at October
29,
1985 hearing).
The S.B.
172
process
envisions
a role for local governing bodies which
is
independent of,
and
is exercised antecedent
to,
the Agency’s
permitting duties.
However,
this should
not be construed
to mean
that the local governing body can take
no recognition
of an
Agency evaluation
in
a prior
or ongoing permitting reveiw when
such has preceded the local governing body’s
involvement,
as
is
the case here.
To find otherwise would be tantamount to limiting
the local governing body’s ability to weigh the full spectrum of
evidence upon which
it might base
its considered judgement.
It
is only when the local governing body relies exclusive~yupon
such
an evaluation,
and thereby abrogates
its responsibility to
exercise independent
judgement,. that
it would be correct to find
that the proceeding
is flawed
(see Criterion
2 discussion,
infra).
67-429
—4—
The Statutory Criteria
Section 39.2(a)
of the Act requires
a
local governmental
entity
to apply
six criteria when making the determination
to
approve/disapprove
a new regional pollution control facility.
The
six criteria
are:
1.
the facility
is necessary to accommodate the
waste
needs
of
the area it
is
intended
to serve;
2.
t~efacility
is
so designed, located and proposed
to be
ooerated that
the
oublic 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 minimize the effect
on the value
of the
surrounding property;
4..
the facility
is located outside t~eboundary 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 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
the
impact
on existing
traffic
flows.
Section
40.1(h)
of
the Act
(when
read
in
conjunction
with
§40~l(a))provides that the burden of proof
in
an appeal
before
the Pollution Control Board
is
on the ostitioner.
The County
Board must
decide based upon
a preponderance
of the evidence that
the facility satisfies all
six criteria.
However,
in order
to
overturn
a local governing
body’s decision,
a petitioner must
prove to this Board
that the local governing body’s decisions
on
the six criteria were against the manifest weight
of the
evidence,
B
&
B Hauling,
116
111. Apo~ 3d
at
608.
Criterion #1
BFI presented two witnesses at the County Board hearing who
presented testimony on the necessity of
the proposed facility.
Mr. John Curry,
a Regional Landfill Manager for BFI, testified
that the existing facility on the site serves primarily the
Illinois side
of the Quad City area,
and that the life expectancy
of the present facility (without expansion)
is five years
at the
present volume (County Board hearing,
R.
at
8).
Mr. Curry also
stated
that if SF1
should close
its landfill, disposal costs
to
67-430
—5—
area residents would increase because there would be fewer
landfills operating
in the area (County Board hearing,
R.
at
9).
The other witness who testified for BFI
in regard to
criterion #1 was
Mr.
David Beck, Vice—President of Andrews
Engineering
and the consulting engineer employed by BFI to work
on various engineering matters
at the site.
Mr.
Beck testified
that his calculations show that at the present rate of refuse
received,
the
remaining life of
the existing facility
is
approximately
5 years, while
the proposed expansion would
increase that number
to
18 years
(County Board hearing,
R.
at
67).
Regarding the useful
lives of other
landfills serving
the
area,
Mr.
Beck said that his firm,
under contract from the
Agency,
had surveyed area landfill operators in
1981.
Mr.
Beck
noted, however,
that the survey had not been updated
since that
time (County Board hearing,
R.
at
76).
Mr.
Beck stated
that
there are two other landfills presently operating
in Rock Island
County
in addition
to the BFI facility.
These
are the Watts
Landfill, and the Bledsoe Landfill
(County Board hearing,
R.
at
90),
Mr.
Beck estimated that the remaining life at the latter
facility
is less
than ten years, while he was uncertain about
the
remaining life at the former
(County Board hearing,
R.
at 90).
Mr. John Thompson, Executive Director
of the Central States
Education Center and Central States Resource Center, testified
for Concerned Neighbors
in regard
to several
of the statutory
criteria,
including criterion #1.
Mr. Thompson testified that he
updated the 1981 report prepared by Andrews Engineering
(supra)
by contacting area landfill operators by phone (County Board
hearing,
R.
at
138).
Mr. Thompson stated that according
to his
calculations the SF1 facility has
six years
of useful
life
remaining,
while
the Watts and Bledsoe Landfills have twelve and
fifteen years,
respectively, of capacity left.
Mr.
Thompson’s
testimony regarding
the remaining life at the Bledsoe Landfill
was impeached on cross—examination,
however, when it was revealed
that
in a 1984 hearing he had testified that the remaining useful
life at that facility was nine years*
(County Board hearing,
R.
at 155);
Mr. Thompson’s explanation of his prior testimony did
not resolve the discrepancy.
Several Illinois appellate cases have interpreted the
language
of criterion #1 of §39.2.
The Second District Appellate
court has held that “the use of
‘necessary’
in the statute does
not require applicants to show that
a proposed facility
is
*B.F,I.
originally applied
to the Rock Island County Board
for
approval
of
this facility in 1984,
and received approval on
October
16,
1984.
It was
at hearing conducted that evening that
Mr. Thompson testified to the nine—year
figure
in relation
to the
Bledsoe facility.
Because
of
an apparent defect in the notice
served
to
a landowner adjoining the facility, however, BFI was
forced
to refile
its application and begin the process again.
67-431
—6—
necessary in absolute terms, but only that the proposed facility
is
‘expedient’
or
‘reasonably convenient’
vis—a—vis the
area’s
waste needs.”
B
&
E Hauling,
116 Ill.
App.
3d
at 609, quoted
in
Waste Management of Illinois,
Inc.
v.
The Pollution Control
Board,
123 Ill.
App.
3d 1075,
1084
(2d Dist.
1984.
The Third
District, within which the facility resides, construed criterion
#1
to require
an applicant
to show that the proposed 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 its waste disposal capabilities, along with any other
relevant factors.”
Waste Management
of Illinois,
Inc.
v.
The
Pollution Control Board, 122 Ill.
App.
3d 639,
645
(3d Dist.
1984).
The Second District later found that “expedient”
connoted
an element
of urgency, and that “reasonable convenience”
also
requires
a petitioner to show more than convenience.
Waste
Management,
123
Ill. App.
3d
at
1084.
Applying the definition of either court,
the Board
is
convinced the record supports the County Board’s decision that
the proposed facility
is
“expedient”
or “reasonably required by
the waste needs
of the area intended
to be
served”.
A local
governing body does not have to wait until the amount
of landfill
space available
to
it
is critically low before approving an
application for
a new facility,
and undoubtedly a prudent
governing body would not do
so.
Insuring a sufficient quantity
of
landfill space
is particularly critical today,
since
the
advent of the S.B.
172 process and the need
to consider all
factors related to waste disposal and treatment have lengthened
considerably the time required
to site a new landfill facility.
The County Board received conflicting testimony on the remaining
life
of the operating landfills
in Rock Island County,
and
ostensibly
reached their determination by assigning
a higher
weight
to some of the
testimony.
The Board does not find the County Board’s conclusion in
regard
to criterion
#1 to
be against the manifest weight
of the
evidence.
The Board notes
that in reaching this determination,
it did not give favorable consideration
to Mr.
Curry’s statement
that disposal costs
in the Rock
Island area would
increase
if BFI
closed its facility (County Board hearing,
R.
at
9).
This
contention was
not supported by any substantive evidence in the
record,
and generalized statements concerning increased costs
are
insufficient to establish the need for expansion of an existing
landfill.
Waste Management,
122 Ill.
App.
3d
at
643;
Waste
Management,
123 Ill. App.
3d at
1087.
Criterion #2
In addition
to his testimony relating to the first
criterion,
Mr. John Curry gave testimony pertaining
to criterion
*2.
Mr. Curry expressed his opinion that the proposed
modification of
the existing facility would result
in a design
superior
to that
of the original
landfill, and that the redesign
would benefit and protect
the public health,
safety and welfare
(County Board hearing,
R.
at 12).
Mr. Curry also stated he
67-432
—7—
believed the soil liner underlying the landfill gonsisted of
silty clay material having a permeability of 10°cm/sec(County
Board hearing,
R.
at 40).
Mr.
David Beck also provided testimony on criterion 12.
He
noted that the features of the modified facility would include
higher berms
(minimum of ten feet above grade), a gas venting
system, gas probes, monitoring wells, creek sampling points, five
feet of final cover, and that the facility will be monitored by
BFI for five years post closure (County Board hearing,
R. at 34,
36,
70).
Mr.
Beck also offered his opinion that the design of
the original facility is adequate to protect the public health,
safety and welfare, and that the proposed modification will
provide state of the art protection for the environment (County
Board hearing,
R.
at 72,
77).
During the dirsct examination of Mr.
Beck, BFI introduced as
an exhibit the original permit application submitted to the
hgency in 1981 by the developers of the facility (County Board
hearing,
R.
at 80), who sold the site to BFI in 1983.
Mr. Beck
testified that this application contained wall geological dataw
relevant to the site (County Board hearing,
R. at 80).
Mr. Beck
conceded that for the purposes of its present application before
the County Board, SF! did not reiterate all of the information
contained in the original application (County Board hearing,
R.
at 80).
Mr. John Thompson, witness for Concerned Neighbors,
discussed this aspect of Mr. Beck’s testimony at length during
his own testimony.
Mr. Thompson stated that among the hearings
on proposed landfills with which he is familiar,
it has been
standard practice to bring
in a hydrogeologist to explain the
available information (County Board hearing,
R.
at 143—144).
In
Mr. Thompson’s opinion, the record was lacking in information
detailing the monitoring and geology of the site; consequently,
he believed the evidence would not warrant a finding that
criterion 12 had been satisfied (County Board hearing,
R. at
148).
The Board finds that there was a sufficient amount of
evidence presented below to support the County Board’s finding
that the proposed facility meets the requirements of criterion
12.
Given the substantial amount of evidence respecting
criterion 12 on the record,
it cannot be concluded that the
County Board relied on the Agency’s prior granting of operational
and developmental permits to this facility as the sole or even
primary basis on which to approve the application for
modification.
Much of this evidence took the form of testimony,
but additionally the County Board was presented with a
substantial amount of information concerning the physical
character of the site in the form of the information .contained in
the 1981 application.
This latter material became a part of the
record when it was admitted as an exhibit, and the County Board
was free to accord the document the weight
it desired.
Moreover,
effective July 1, 1985,
applicants in S.B. 172 proceedings are
67-433
required
to
file
all
documents
submitted
to
the
~gency
as
part
of
their
oetition
to
the local governing
body.
Thus,
it
is
aoprooriate
that
the County
Board
revie~
the
lgency~ s
prior
~n~~olverneut.
In
view
of
the
above,
toe BoarS
does
not find
that
the
County
Board’s
approval
of
the
application
as
to criterion
#2
was
against
the
rianifest ~einht
of
the
~videnc~.
Criterion
#3
Mr.
Sordon
Landrum,
District
‘1ana~3er
for
3~’1,
testified
that
the
exoansion
of
the
facility
as
?roposed
would
be
compatible
with
the
surrounding
area.
In
support
of
this
contention,
~r.
Landrum
noted
that
“some
new
construction”
(a
new
home)
has
taken
place
aoproximately
330
yards
from
the
site
(County
Board
hearing,
R.
at
52),
Moreover,
Mr.
t~andrum
indicated
that
because
he
believes
the
orooosed
modification
of
the
site
would
improve
the
facility
overall,
he
is
of
the
opinion
that
orooerty
values
in
the
area
would
increase
after
the
modification
takes
place
(County
Board
hearing,
R.
at
52—53).
r4r
David
Beck
testified
that
because
the landfill
is
located
in
a hilly, wooded
area,
it
is
compatible
with
the
surrounding area because
it
is not easy
to see from the road
and
in fact
is
not immediately adjacent
to the highway (County Board
hearing,
R.
at
7~—77).
~1r~
Beck
also
stated
that
he believes
the
facility
is compatible with the surrounding
area because
the
landfill
is
one
of
the
cleanest,
best
managed
and
best
operated
he
has
ever
seen
(County
Board
beaning,
R.
at
77).
The
Second
District Illinois lopellate
court
has
interorenad
criterion
#3,
and has odd
that
in
an area where
a landfill
oresentlv
exists,
an
ap~licant
in
an
S. 3.
172 oroceedini~ snould
riot
be
cole
to
estanlaso
oze
comoatibilitu
of
a
orooosei
facr~ ~
~oasad
upon
the
oresunce
of
the
oreexisting
facility.
~asca
han~~efl~,123 Ill. Apo~ 3d
at
1088.
A
CiOSd
reading
of that
case
indicates that the Second Circuit
rejected the notion
tria:
a
proposed
facility
is
always more compatible with
an area where
a
landfill already exists than with
an area where
there
is
presently
no landfilL
Bowever,
in
a recent
decision
the
Third District
found
toot
the
prior
use
of
a
site
is
relevant
to
the
question
of
comoctibility.
Toe
court
noted
that
criterion
#3
recognizes
that
the
siting
of
a facility may result
in some reduction
in
value
to
surrounding
properties;
what
the
applicant
aust
show
is
that
tne
proposed
location
minimizes
this
reduction.
The
court
went
on
to
state
that:
where,
as
here,
the
orooosed
site
is
in
a
ore—existino
industrial
zone
near
to
the
city’s
own
waste
water
treatment
plant
and
next
door
to
a
rubber
boot
factory
that
uses
nazardous
materials,
we
cannot
escape
the
conclusion
that
toe manifest weight
of
the evidence supports
a finding
that
incompatibility with the character
of the surrounding
area
is minimized
by the selection
of
the site described
in
67-434
*3—
Watts’
application.
Speculation of
a possible reduction of
value
to the Servus Rubber factory by locating
the facility
on the site of
a former paint factory and
a former battery
factory
is
insufficient to overcome
the manifest weight
of
evidence that the effect on value
of the surrounding
property is minimized by the zoining
(sic)
classification
and prior uses of the selected
site.
Cathryn Braet
v.
Illinois Pollution Control Board,
No.
3—84—0193
(Consolidated with NO.
3—84—0221),
slip
op.
at
32
(3d Dist.
August
23,
1985).
The Board
notes
the apparent conflict between the decisions
of the Second
and Third Districts regarding criterion
#3,
and
finds that after
applying either view it cannot say that the
County Board’s approval of
the application as
to criterion
#3 was
against
the
manifest
weight
of the evidence.
The evidence presented by SF1 concerning
this criterion was
not largely based
on the fact that
a preexisting facility
operates there.
Furthermore,
this evidence was largely
uncontested by Concerned ~eighbors (except
for cross—examination
of BFI’s witnesses), who presented no witnesses who offered any
testimony on criterion
#3.
Criterion
#4
There was ample uncontested evidence before
the County Board
that the disposal area at the site
is outside of the 100—year
floodplain,
and moreover
that the disposal
area
is or will be
floodproofed by berms extending
15 feet above the 100—year flood
elevation.
This evidence consists
of testimony and cross—
examination of
Mr.
Beck (County Board hearing,
R.
at
72—74,
97—
104)
and the Agency’s prior permitting of the site,
in which
it
is explicit that disposal not take place within the 100—year
floodplain.
At
issue
is whether such evidence
is sufficient
for the
County Board
to reach
the conclusion that criterion #4 has been
satisfied.
Criterion #4 would seem to clearly specify a central
role for the Illinois Department of Transportation (“IDOT”),
namely that it
is IDOT’s responsibility to determine the boundary
of the 100—year
flood or,
in the alternative,
that IDOT approves
floodproofing of the site.
Counsel for Concerned Neighbor’s
correctly pointed out during cross—examination
of
Mr. David Beck,
however,
that up to
the time of
the County Board hearing
in this
matter the Illinois Department of Transportation (“IDOT”) never
indicated that the proposed facility
is located outside the
boundary of
the 100—year flood plain
as determined by IDOT for
that area;
nor
had ID3T indicated
up
to that time that the site
is flood—proofed
to meet
the standards and requirements
established
by IDOT (County Board hearing,
R.
at 102—103).
67-435
—10—
However,
in prior S.B.
172 cases IDOT has consistently
deferred
to determinations made
by the Agency
for proof of
compliance with the requirements of criterion #4.
This pattern
was exemplified
in
a letter from a representative of IDOT,
admitted
as an exhibit
in an earlier S.B.
172 case.
A portion of
it reads
as follows:
“I also advised you during our meeting that the Department
of Transportation has no specific standards regarding flood—
proofing of
regional pollution control facilities.
It
is my
understanding that the Illinois Environmental Protection
Agency (~gency)does.
Therefore,
if
a proposed facility
meets all of the requirements
of the Illinois Environmental
Protection Agency regarding flood—proofing,
it
is deemed
to
comply with the requirements of Chapter
1ll~-/2, Section 39.1
(sic)
insofar
as the Department of Transportation is
concerned.”
Board
of Trustees of Casner Township v. County of Jefferson, PCB
84—175
(April
4,
1985)
at 12—13.
The Board
in that case
construed that language
as sufficient
to constitute IDOT approval
pursuant to criterion #4.
The Board
finds
that it must again
rely on an Agency
determination
in order
to find the requirements of criterion *4
satisfied.
without doing
so,
the Board would have
no recourse
but
to
reverse the County Board’s decision as
to criterion #4 and
remand the matter for further proceedings below.
However,
as
IDOT has desired
to rely on the Agency regarding criterion #4
matters, nothing would
be gained by remanding
this proceeding
back
to the County Board since the Agency demonstrated previously
(through the earlier permit process)
that the original site
is
not within the 100—year floodplain.
It cannot be said that the
proposed facility
is within
the floodplain either,
both because
there
is testimony in the
record that the lowest point of the new
facility would only
be
a “foot or two” lower
than the original
facility, and because of the height of
the berms, noted above.
Thus,
it
is unlikely that under remand
the County Board could
find other than
it already has, and
a remand by this Board would
constitute
a useless act.
There
is
one other matter
regarding criterion #4 which
warrants discussion.
At the Board hearing
in this matter,
BFI
attempted to
introduce into the record an
affidavit
of Mr. David
R.
Boyce,
Chief Flood Plain Management Engineer for
the Division
of Water Resources,
IDOT,
BFI alleges that Mr.
Boyce “makes
all
S.B.
172 determinations for IDOT”
(November
8, 1985 brief of BFI,
p.
19).
The Hearing Officer
at that proceeding ruled that the
affidavit would not be admitted as
it was not directed towards
an
issue that could properly be considered
at
that hearing
(3oard
hearing,
R.
at 14).
The statutory basis
for the Hearing
Officer’s ruling
is section
40.1(a) of the Act, which states
that,
in regard
to
a Board hearing
in an S.B.
172 proceeding:
67-436
—11—
“such hearing shall be based exclusively on the record
before the county board...and...no new or additional
evidence
in support of
or
in opposition to any finding,
order,
determination or decision of
the appropriate county
board...shall
be heard by the Board.”
In its post—hearing brief, BFI moved
the Board
to overrule the
Hearing Officer’s decision and introduce the Boyce affidavit
(November
8,
1985 post—hearing brief
at
20).
The Hearing
Officer’s ruling was proper, and
is hereby affirmed.
Criterion #5
Mr.
Gordon Landrum testified that BFI has undertaken various
activities at its facility
in the interest of minimizing
the
danger
to
the surrounding area from fire,
spills,
or
other
operational accidents.
These activities have included:
bi-
monthly safety meetings of both the landfill staff
and State
Police located nearby;
close cooperation with the local fire
department,
including on—site training from that department
in
putting out landfill fires;
and CPR (cardiopulmonary
resuscitation) training
to every employee of the landfill
(County
Board hearing,
R.
at
53).
Mr. Landrum also noted that since BFI
began operating the site in 1983, there have been no accidents
at
the facility
(County Board hearing,
R.
at
53).
Except for
questioning Mr.
Landrum on cross—examination, Concerned Neighbors
did not present any evidence of
its own to dispute that presented
by BFI.
The Board accordingly does not find that the decision of
the County Board as
to criterion
#5 was against the manifest
weight of
the evidence.
Criterion #6
Both Mr. Gordon Landrum and Mr.
David Beck testified that
trucks traveling
to and from the facility have no alternative but
to use Knoxville Road (County Board hearing,
R.
at
60 and
78,
respectively).
Concerned Neighbors presented no evidence which
would contest this assertion.
Mr.
Landrum did note that
approximately
40 to
55 loads are delivered to the site per day
(County Board hearing,
R.
at
54),
and that
in his opinion
Knoxville Road
is not overused
(County Board hearing,
R.
at
60),
Mr.
Beck noted
that he believes the road is adequate
to
serve
the landfill,
and that the proposed modification will not
increase
the amount of
traffic using
the facility (County Board
hearing,
R.
at 78).
Since this evidence was uncontroverted
below,
the Board
finds
that the County Board’s decision
as
to
criterion
#6 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.
67-437
—12—
ORDER
The July 16, 1985 decision of
the Rock Island County Board
approving the request of Browning—Ferris Industries of Iowa,
Inc.
for approval of
the siting of a new regional pollution control
facility
is hereby affirmed.
IT
IS SO ORDERED4
Bill Forcade dissented.
I, Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the ______________________ day of
____________,
1986, by
a vote
of
_________
7
Dorothy
M.
unn, Clerk
Illinois Pollution Control Board
67-438
