ILLINOIS POLLUTION CONTROL BOARD
June 19, 1997
RESIDENTS AGAINST A POLLUTED
ENVIRONMENT and THE EDMUND B.
THORNTON FOUNDATION,
Petitioners,
v.
COUNTY OF LASALLE and LANDCOMP
CORPORATION,
Respondents.
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PCB 97-139
(Pollution Control Facility Siting Appeal)
GEORGE MUELLER, HOFFMAN, MUELLER, CREEDON, APPEARED ON BEHALF
OF PETITIONERS;
ROBERT M. ESHBACH, SPECIAL ASSISTANT STATE’S ATTORNEY, APPEARED ON
BEHALF OF RESPONDENT COUNTY OF LASALLE;
JAMES I. RUBIN AND KEVIN J. O’BRIEN, BUTLER, RUBIN, SALTARELLI & BOYD,
APPEARED ON BEHALF OF RESPONDENT LANDCOMP CORPORATION.
OPINION AND ORDER OF THE BOARD (by M. McFawn):
This matter is before the Board on a petition for review filed by Residents Against a
Polluted Environment (Residents) and The Edmund B. Thornton Foundation (collectively
petitioners or Residents) on February 19, 1997. Petitioners seek review of a January 17, 1997
decision of the LaSalle County Board (LaSalle or County Board) which granted site location
suitability approval to LandComp Corporation (LandComp) for the construction of a new
pollution control facility. The proposed pollution control facility in this case is a municipal
solid waste landfill. Petitioners filed their appeal pursuant to Section 40.1(b) of the
Environmental Protection Act (Act) (415 ILCS 5/40.1(b) (1997)). This is the second appeal to
the Board concerning this proposed landfill. The first appeal was Residents Against a Polluted
Environment,
et al
. v. County of LaSalle, (September 19, 1996) PCB 96-243.
Prior to that appeal, LandComp filed its Siting Application for the construction of a
new municipal solid waste landfill with the County Board on November 1, 1995. The
proposed facility would encompass 185 acres, with an approximately 101.5 acre landfill
footprint. (County Board Hearing Transcript (CH) at 67.)
1
The site for the proposed landfill is
1
The transcripts from the County siting hearings will be cited as CH at ___, the transcript
from the first Board hearing will be cited as PCB at ___, the transcript from the second Board
2
approximately one mile west of Ottawa, Illinois in LaSalle County. It is directly northwest of
the States Land Improvement No. 2 Landfill. (Vol. II Sec. 3 p. 3-1.) The proposed landfill
would provide 5,700,000 tons of disposal capacity, which is projected to meet the disposal
needs of LaSalle County for a minimum of 25 years. (Vol. I Sec. 1 p. 1-1.) The proposed
“primary” service area is LaSalle County, and the surrounding nine counties of DeKalb,
Kendall, Grundy, Woodford, Marshall, Putnam, Livingston, Bureau, and Lee. (Vol. I Sec. 1
p. 1-2 to 1-4.) Additionally, if the primary service area does not generate a minimum of
140,000 tons of waste annually, the service area would be expanded to include additional
counties in northern Illinois. (Vol. I Sec. 1 p. 1-4.) Such expansion would be subject to the
approval of the County Board.
The first set of public hearings prior to the PCB 96-243 appeal were held before the
LaSalle County Siting Hearing Committee (Siting Committee) from February 1, 1996 through
March 6, 1996 before Hearing Officer Allan Schoenberger. The Siting Committee consisted
of five members of the County Board, with two additional members as alternates. At the
conclusion of the hearings, Hearing Officer Schoenberger prepared a 101-page
recommendation, recommending that the Application be granted. On April 25, 1996, the
Siting Committee issued its unanimous recommendation that the Application be granted,
subject to 26 conditions. That same day, the full County Board approved the Application
subject to the recommended conditions, adopting in their entirety the recommendations and
findings of the Siting Committee. Petitioners then appealed the siting approval to the Board.
(See PCB 96-243.)
In PCB 96-243, the Board found that the procedures before the County Board did not
comport with due process standards of fundamental fairness. The Board found two instances
in PCB 96-243 that made the proceedings fundamentally unfair. The first was that LaSalle did
not make volume VII of LandComp’s Application available for public inspection, pursuant to
Section 39.2(c) of the Act, and that its unavailability rendered the proceedings fundamentally
unfair. Second, the Board found that the report prepared by the County’s consulting
engineers, Camp, Dresser, and McKee (CDM), evidenced an extensive dialogue, which took
place outside the record, between CDM and the applicant’s consultant, Patrick Engineering.
The Board found that because LaSalle's Solid Waste Director was privy to these discussions,
and because the discussions constituted
ex parte
contacts, which prejudiced petitioners and
other public participants, that these contacts rendered the proceedings fundamentally unfair.
Thus, the Board vacated LaSalle's siting decision and remanded the case to the County Board.
On remand, the Board ordered the County Board to deposit and make available to the
public at the county clerk’s office a copy of LandComp’s entire siting application, including
volume VII, and a copy of the CDM Report dated February 1996. The Board also ordered the
County Board to conduct one or more public hearings, and allow a public comment period of
at least 30 days, on the Application, including volume VII, and the CDM report. Finally, the
County Board was ordered to vote and render a new decision no later than 120 days after the
hearing will be cited as PCB2 at __, and LandComp's Siting Application will be cited as
Vol.__ Sec.__ p.__.
3
date of the Board’s order based upon the record, including the information acquired during the
public hearing and comment period upon remand. (PCB 96-243 at 22 and 23.)
As ordered, the County Board held public hearings from December 4, 1996 through
December 12, 1996 before Hearing Officer Allan Schoenberger. (CH at 06735.) These
hearings were limited to volume VII of LandComp’s Application and the CDM report. After
the siting hearings and after the conclusion of the public comment period, the Siting
Committee voted 3 to 2 to recommend that the full County Board decline to grant siting to
LandComp. However, on January 17, 1997, the LaSalle County Board rejected the Siting
Committee’s recommendation and granted siting approval subject to the 26 original conditions
by a 15 to 11 vote. (CH at 06733, 06735 and 06756.) That siting approval is the subject of
this appeal. The Board’s hearing in this matter was held on April 22, 1997 in Ottawa, Illinois,
before chief Hearing Officer Michael Wallace.
In this appeal, Residents challenge the siting decision as being (1) premised on
proceedings which were fundamentally unfair on several grounds, and (2) against the manifest
weight of the evidence on three of the nine statutory criteria. The three criteria being
challenged by Residents are: 1) the need criterion of Section 39.2(a)(1) of the Act; 2) the
health safety and welfare criterion of Section 39.2(a)(2) of the Act; and 3) consisting with the
local solid waste plan pursuant to Section 39.2(a)(8) of the Act. (415 ILCS 5/39.2(a)(1), (2),
and (8) (1997.)) In PCB 96-243, the Residents’ had also challenged the County Board's siting
approval decision on several of the siting criteria at Section 39.2 of the Act. (PCB 96-243 at
3.) Because the remand was based upon a finding that a portion of the siting process had been
fundamentally unfair, we did not review any of the nine criteria found at Section 39.2 of the
Act. In this case, we consider both types of challenges: the fundamental fairness of the
proceeding upon remand and the siting criteria challenges raised by Residents. For the reasons
explained below, we find that the procedures before the County Board did comport with due
process standards of fundamental fairness and that the decisions of the County Board on the
three challenged siting criteria are not against the manifest weight of the evidence.
ELEMENTS OF REVIEW
At the local level, the siting process is governed by Section 39.2 of the Act. Section
39.2 of the Act provides that local authorities are to consider as many as nine criteria when
reviewing an application for siting approval. Section 39.2(g) of the Act provides that the
siting approval procedures, criteria, and appeal procedures provided for in Section 39.2 shall
be the exclusive siting procedures for new pollution control facilities. (415 ILCS 5/39.2 and
39.2(g) (1997).) However, the local siting authority may develop its own siting procedures,
so long as those procedures are consistent with the Act and supplement, rather than supplant,
those requirements. (See Waste Management of Illinois v. Pollution Control Board, 175 Ill.
App. 3d 1023, 530 N.E.2d 682, 692-693 (2d Dist. 1988).)
Section 40.1 of the Act requires the Board to review the proceeding before the local
siting authority to assure fundamental fairness. In E & E Hauling, Inc. v. Pollution Control
Board, 116 Ill. App. 3d 586, 451 N.E.2d 555 (2d Dist. 1983),
aff’d in part
, 107 Ill. 2d 33,
4
481 N.E.2d 664 (1985), the appellate court found that although citizens before a local
decision-maker are not entitled to a fair hearing by constitutional guarantees of due process,
procedures at the local level must comport with due process standards of fundamental fairness.
The court held that standards of adjudicative due process must be applied. (See also,
Industrial Fuels & Resources v. Pollution Control Board, 227 Ill. App. 3d 533, 592 N.E.2d
148 (4th Dist. 1992); and Tate v. Pollution Control Board, 188 Ill.App.3d 994, 544 N.E.2d
1176 (4th Dist. 1989).) Due process requirements are determined by balancing the weight of
the individual’s interest against society’s interest in effective and efficient governmental
operation. (Waste Management, 175 Ill. App.3d 1023, 530 N.E.2d 682 (2d Dist. 1988).)
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. (Hediger v. D & L
Landfill, Inc., (December 20, 1990), PCB 90-163, 117 PCB 117, 121.)
Upon appeal, the Board may also review a local authority’s decision on the nine
statutory criteria. In so doing, the Board must determine whether the local decision is against
the manifest weight of the evidence. (McLean County Disposal, Inc. v. County of McLean,
207 Ill.App.3d 477, 482, 566 N.E.2d 26, 29 (4th Dist. 1991); Waste Management of Illinois,
Inc. v. Pollution Control Board, 160 Ill.App.3d 434, 513 N.E.2d 592 (2d Dist. 1987); and E
& E Hauling, 116 Ill.App.3d 586, 451 N.E.2d 555 (2d Dist. 1983),
aff’d in part
, 107 Ill. 2d
33, 481 N.E.2d 664 (1985).)
RESIDENTS’ CHALLENGES UNSUPPORTED ON THE RECORD
Residents allege in their petition seven items which are not addressed in their post
hearing brief. We note that only one of these seven allegations challenged statutory siting
criteria in addition to the three criteria addressed at pages 16-28 of this opinion, and that only
one of the other allegations was addressed by Residents at the Board’s hearing. We find that
Residents failed to support their burden of proof concerning any of the seven allegations.
Although Residents did not provide any argument or support concerning these seven issues,
they are listed below for purposes of the record.
First, Residents allege that LandComp failed to meet criteria 3, 5, and 7 of Section
39.2(a) of the Act. (415 ILCS 5/39.2(a)(3), (5), and (7) (1997).)
Second, Residents allege that the County Board's decision was based upon criteria
which it had no authority to consider. Residents did not identify the criteria to which they
refer in their brief or at hearing.
Third, Residents allege that the County Board failed to timely accept documents and
public comments in a timely fashion, but that the same were not made a part of the record.
We note that this allegation was addressed PCB 96-243, wherein the Board found that such
failure was cured and had not rendered that proceeding to be fundamentally unfair. In this
case, Residents have not cited any new failures by the County Board to timely receive
documents.
5
Fourth, Residents allege that the County Board siting resolution of January 17, 1997
was adopted at an illegally and improperly convened meeting. Although Residents questioned
witnesses at the Board’s hearing about the timing of the that meeting, they did not further
develop this issue or make any arguments to the Board.
Fifth, Residents allege that the County Board failed to consider and adopt the proposed
findings of fact submitted by petitioners. Again, Residents did not present any argument or
support concerning this allegation.
Sixth, Residents allege that the siting resolution of January 17, 1997 makes insufficient
findings of fact to support siting approval. We note the written resolution clearly states that
the County Board believes that all the criteria have been met.
Seventh, Residents contend that the conditions as imposed in the siting approval usurp
the right of the Illinois Environmental Protection Agency to impose its own conditions during
the permitting process, and therefore the County Board’s conditions operate as a denial of the
Application. We note that the Act allows the imposition of conditions by the local siting
authority, and the appellate courts have upheld a local decisionmaker's authority to impose
conditions when granting siting approval. (415 ILCS 5/39.2(e) (1997).) Residents did not
provide any argument or support for their allegation that the County Board’s conditions in this
case defeat the siting approval granted by the County Board.
In summary, the Board has reviewed these allegations and the record before us and
finds that none are supported by that record. Residents have failed to support their burden of
proof concerning each. Therefore, the Board finds that none of these allegations support a
finding that the proceeding upon remand was fundamentally unfair or that the County Board’s
decisions on the siting criteria should be reversed.
ISSUES OF FUNDAMENTAL FAIRNESS
Section 40.1 of the Act requires the Board to review the proceedings before the local
decisionmaker to assure fundamental fairness. As stated earlier, 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. (See, Hediger v. D & L Landfill, Inc.,
(December 20, 1990), PCB 90-163.)
Residents raised four arguments asserting that the County Board was predisposed in
favor of the application. First, they seek to reassert the contents of their pre-hearing motions
concerning the County’s Solid Waste Plan (Plan) and other pre-siting agreements. Second,
they assert the County had a contractual relationship with the applicant prior to the filing of the
Application, which created inherent bias. Third, Residents argue that the Plan requires public
participation in the siting process, which they were denied. Fourth, Residents argue that
certain County Board members were pre-disposed, causing the process to be fundamentally
unfair. (LandComp makes the same argument concerning one County Board member.)
6
Finally, Residents argue that the County Board’s hearing officer was biased, causing the
process to be fundamentally unfair.
The Board has examined each of these arguments as set out below. We find that none
of these allegations renders the siting proceedings fundamentally unfair.
Exclusion of Pre-Application Evidence
In their post-hearing brief, Residents again support their allegation that the County
Board was predisposed in favor of granting LandComp’s application by re-alleging the
arguments which they have made before the County Board’s hearing officer, twice before the
Board in PCB 96-243 and in a motion for clarification filed in this case prior to the Board’s
hearing. The substance of Residents’ argument is that the manner in which LaSalle and
LandComp entered into the vendor agreement indicates that LandComp exercised undue
influence over the County Board. Residents allege that this undue influence disqualified the
County Board from hearing the siting application and rendered any such proceedings before
the County Board fundamentally unfair.
Residents further allege that the proceedings were fundamentally unfair because the
County Board hearing officer refused to allow testimony at the siting proceeding concerning
the adoption of the Plan, and thereby prevented Residents from establishing the County
Board’s pre-decisional bias. (Residents Br. at 26.) Residents assert that the County Board
hearing officer’s error was compounded by the Board order granting LandComp’s motion
in
limine
on July 18, 1996, and the Board’s opinion and order concerning LaSalle’s motion to
strike in PCB 96-243 on September 19, 1996, and finally by the Board's ruling on Residents'
motion to clarify in this case on April 17, 1997. (Residents Br. at 26.) These motions
contained allegations that LandComp improperly influenced and dictated the development of
the Plan, the conditions for siting approval, and procedural rules for the County Board’s siting
proceedings.
LandComp asserts that the Board’s orders of July 18, 1996, September 19, 1996, and
April 17, 1997 were correct because the Board refused to consider LandComp’s participation
in legislative processes before the County Board prior to the filing of the siting application.
(LandComp Br. at 38-39.) LandComp also asserts that the Board’s hearing officer in PCB 96-
243 correctly relied on the Board’s July 18, 1996 order in refusing to allow testimony
concerning the LaSalle’s selection of a preferred vendor and adoption of the Host Agreement.
(LandComp Br. at 39.) Finally, LandComp asserts that Residents failed to make the necessary
offers of proof to preserve their claim that evidence was improperly excluded. (LandComp
Br. at 40.)
LaSalle asserts that Residents’ allegations concern alleged events which occurred years
before LandComp filed its application. (County Br. at 22.) LaSalle argues Section 40.1
addresses only the fundamental fairness of the siting hearing and procedures employed therein,
and that the Board is therefore without jurisdiction to review the alleged events. As to
Residents’ allegations which concern the siting proceedings, LaSalle cites Southwest Energy v.
7
Pollution Control Board, 275 Ill. App. 3d 84, 655 N.E.2d 304 (4th Dist. 1995) (an appeal
concerning the proposed Havana facility), and the 1992 amendment to Section 39.2 of the Act,
asserting that the fact that a county board member has publicly expressed an opinion does not
preclude that member from participating in the proceedings, and that local siting authorities are
not held to the same standards as judicial bodies. (County Br. at 23.) LaSalle argues further
that even if a disqualifying bias or prejudice is found, the Rule of Necessity requires that the
County Board act as the siting authority.
We affirm the rulings in our July 18, 1996, September 19, 1996, and April 17, 1997
orders that allegations concerning the adoption of the Plan are not proper for Board to consider
in a pollution control facility siting appeal pursuant to Section 40.1 of the Act. We further
affirm the Board’s prior ruling in PCB 96-243 that contacts between the applicant and the
siting authority prior to the filing of the siting application do not constitute impermissible
ex
parte
contacts. (PCB 96-243 at 16.) As we ruled in each order entered in PCB 96-243, there
is no authority for applying
ex parte
restrictions concerning pollution control facility siting
prior to the filing of an application for siting approval. (PCB 96-243 (September 19, 1996) at
15 and 16.)
Those holdings are best summarized in our final opinion and order in that case. (PCB
96-243 (September 19, 1996) at 15-16.) We held that because evidence of these contacts is
not relevant to the siting criteria and is not indicative of impermissible pre-decisional bias of
the siting authority, we find that the County Hearing Officer’s failure to allow testimony
concerning these allegations did not render the proceedings fundamentally unfair. Similarly,
the contacts between the applicant and the County Board prior to the filing of the Application
are irrelevant to the question of whether the siting proceedings themselves were conducted in a
fundamentally fair manner. (PCB 96-243 at 16.)
Relationship Between LandComp and LaSalle
Host Agreement. Residents next re-allege that LandComp’s status as the exclusive
vendor for LaSalle and the Host Agreement between LaSalle and LandComp created inherent
bias which rendered the siting proceedings fundamentally unfair. Residents point out that the
Board has recognized the concept of inherent bias in Concerned Citizens for a Better
Environment v. City of Havana, (May 16, 1994), PCB 94-99. (Residents Br. at 29.) They
assert that LaSalle had a great deal invested in LandComp and has a “clear and obvious”
motive to grant LandComp’s siting application. Residents assert that the relationship between
LandComp and LaSalle is much more complex than those encountered in prior cases involving
annexation agreements. (Residents Br. at 30.)
LandComp responds that the Board and the appellate courts have repeatedly rejected the
assertion that the existence of a host agreement indicates predisposition or bias on the part of
the siting authority. (LandComp Br. at 37.) LandComp repeats the rule that administrative
officials are presumed to be objective. (LandComp Br. at 37.) LandComp also argues that the
Board has already found in PCB 96-243 that there was no bias. (LandComp Br. at 37.)
8
LaSalle responds that the issue of inherent bias concerning the Host Agreement is very
much the same as that found in prior cases involving pre-annexation agreements. LaSalle
asserts that the appellate court has addressed this issue in Fairview v. PCB, 198 Ill.App.3d
541, 546, 555 N.E.2d 1178, 1181 (3d Dist. 1990) and has held that such an agreement does
not create bias. (County Br. at 25.)
Residents have not alleged anything new since the Board addressed these issues in PCB
96-243. The Board therefore affirms its prior decision. We find that the Host Agreement and
the exclusive vendor relationship did not render the proceeding fundamentally unfair. (PCB
96-243 at 16 and 17.)
Attempt to Re-negotiate Rate Structure. Residents assert that
ex parte
contacts between
LaSalle and LandComp rendered the proceedings fundamentally unfair. In support, Residents
again argue that employees of LaSalle impermissibly attempted to re-negotiate the rate
structure in the Host Agreement with LandComp while the Application was pending.
(Residents Br. at 30-31.)
LandComp argues that this issue was already decided by the Board in PCB 96-243.
(LandComp Br. at 38.) LaSalle does not argue anything new, but simply reiterates its
arguments stated in PCB 96-243. (County Br. at 26.)
We find that the Residents have not presented any new evidence or arguments
supporting this allegation. We uphold our prior ruling that the attempt by LaSalle employees
to re-negotiate the rate agreement constituted improper
ex parte
contacts, but did not unfairly
prejudice the proceedings. (PCB 96-243 at 16-17.)
Lack of Public Participation
Residents argue that LandComp failed to show that the proposed facility was consistent
with the Solid Waste Plan. Residents’ argument is two-fold. First, Residents argue that the
facility is not consistent with the Plan, and therefore the siting criteria at Section 39.2(a)(8)
was not met. This argument is addressed under the Siting Criteria portion of the opinion.
(
supra,
at pp. 26-28) Second, Residents argue that the public participation portions of the Plan
were not followed, and therefore the siting proceeding was fundamentally unfair. Our
discussion here is limited to the fundamental fairness issues alleged in Residents' brief.
In that context, the substance of Residents’ argument that public participation
provisions of the Plan were not followed is substantially similar to the arguments made about
the bias of the hearing officer and the inherent bias of the County Board. (Residents Br. at 24-
25.) LaSalle counters that the public was involved in the siting process and that the applicant
cannot be held responsible for the extent to which the public does or does not participate.
(County Br. at 19.) LaSalle also argues that Section 39.2(a)(8) of the Act requires only that
the proposed facility be consistent with the Plan, not that the siting procedures be consistent
with the Plan. (County Br. at 19.) Its fellow respondent, LandComp, contends that how the
Plan was adopted is not within the Board's scope of review, and points out that the Board has
already ruled on this issue in its PCB 96-243 July 18, 1996 order. (LandComp Br. at 33.)
9
LandComp is correct. In PCB 96-243, the Board affirmed its July 18, 1996 order that
Residents’ allegation concerning the adoption of the Plan are not proper for Board
consideration in a Section 40.1 siting appeal. (PCB 96-243 at 15 and 16.)
We find that nothing presented by Residents persuades us to overrule our prior
decisions. We note that Residents participated at hearing and that neither the hearing officer's
rulings nor the County Board prevented them from participating fully in the local siting
process. We find nothing in the record to indicate that the proceedings were fundamentally
unfair because public participation was afforded Residents.
Disqualification of Five County Board Members
In the context of a fundamental fairness challenge, both Residents and LandComp argue
in favor of disqualifying certain County Board members (Members) and reducing the vote total
in support of or against siting approval. Residents argue that four County Board members in
favor of siting should be disqualified and that the vote in favor of siting should be reduced
from 15 to 11.
2
LandComp argues that one County Board member who voted against siting
should be disqualified and that the vote against siting should be reduced from 11 to 10. We
will address Residents' arguments first.
Residents argue that four of the County Board members in favor of the siting
application should be disqualified.
3
They first contend that Member Patricia Cogdal should be
disqualified because she owns a garbage hauling business and because she "voted on the
landfill the way her deceased husband would have wanted her to vote." (Residents Br. at 31.)
Residents next contend that Member Donald Jordan was not familiar with the evidence, did not
avail himself of the entire record, and misunderstood the burden of proof and should therefore
be disqualified. (Residents Br. 32-33.) Residents also allege that the County Board Chairman
told Member Tom Mowinski that he should vote in favor of the siting application because if he
did not, the state would site a landfill. (Residents Br. at 33.) Finally, Residents argue that
Member Glenn Garretson did not read the entire record and therefore should be disqualified.
Residents argue that the closeness of the vote and the fact that the County Board
rejected the Siting Committee recommendation should persuade the Board to examine whether
the votes of County Board members were based upon the evidence. (Residents Br. at 34.)
In response, LandComp contends that under E & E Hauling, the County Board
members are presumed to act fairly. (LandComp Br. at 42 citing E & E Hauling, Inc. v.
Pollution Control Board, 116 Ill.App.3d 586, 451 N.E.2d 555 (2d Dist. 1983),
aff'd in part
(1985) 107 Ill.2d 33, 481 N.E.2d 664).) LandComp also cites City of Rockford v. County of
Winnebago, 186 Ill.App.3d 303, 313, 542 N.E.2d 423, (2d Dist. 1989); Waste Management
2
One of the County Board members challenged by Residents, did not vote. Therefore,
Resident’s mathematics is incorrect.
3
Id
10
of Illinois v. PCB, 175 Ill.App.3d 1023, 1044, 530 N.E.2d 682, (2d Dist. 1988); and Turlek
v. Village of Summit, (May 5, 1994) PCB 94-19, 94-21, and 94-22 (consolidated) and argues
that the well-settled rule is that county board members need not review the entire record so
long as it is available to them. (LandComp Br. at 43.)
LandComp contends that the testimony of Member Jordan shows that he believed when
he voted in favor of siting that all the criteria had been met. LandComp also argues that
Member Garretson relied upon the evidence in the record when making his vote. (LandComp
Br. at 43-44.) Additionally, LandComp argues that Member Cogdal's business does not
present a disqualifying conflict of interest. (LandComp at 45.) LaSalle's arguments against
disqualifying the County Board members are very similar to LandComp’s. (County Br. At 27-
31). LandComp also seeks to disqualify Board Member Koban who voted against siting
because of her involvement with the objectors and because of
ex parte
contacts with the
objectors. (LandComp Br. at 46-47.)
For the reasons stated below, the Board rejects the arguments made by Residents and
LandComp, respectively, seeking to disqualify County Board members on the grounds that
their actions rendered the siting proceedings fundamentally unfair.
County Board Member Patricia Cogdal. Residents argue that Member Patricia Cogdal
was biased in favor of the siting application because she owns Starved Rock Sanitation, a
hauling business that dumps at the applicant's existing facility. In support of their argument,
Residents point to the fact that Member Cogdal was advised by the LaSalle County State's
attorney to abstain on the siting vote. Residents summarize Member Cogdal's testimony as
showing that she would prefer a convenient landfill and that she would like to stay in business
because she has a son to raise. They also contend that Member Cogdal voted in favor of the
siting because that was the way her husband would have wanted her to vote. (Residents Br. at
31.)
LandComp argues that Member Cogdal testified that she based her decision on the
evidence presented at the siting hearings. LandComp states that no conflict of interest exists
because if there were no landfill in LaSalle County, Member Cogdal would be in the same
position of her competitors and would have to haul waste to another location. LandComp cites
several Board cases in support of the proposition that even county board members who
performed services for and were paid by the applicant cannot be disqualified absent additional
evidence. LandComp argues that because Member Cogdal was not employed by or paid by
the applicant, the Board should not find disqualifying bias in this case. LaSalle makes
arguments similar to LandComp’s, but also adds that Member Cogdal was only a customer at
LandComp’s current facility, as are most waste haulers in LaSalle County.
Member Cogdal testified that she was a County Board member during both siting
hearings and in both siting decisions voted in favor of siting the new facility. (CH at 6755 and
PCB2 at 13 and 23.) Member Cogdal also testified that her husband used to own the hauling
business, which she now owns and that the business currently dumps at the applicant's existing
facility. (PCB2 at 13-14.) On direct examination by Residents, Member Cogdal admitted that
11
she would prefer the new landfill to be closer to her business for economic reasons, and that
her husband would have wanted her to vote in favor of the application. (PCB2 at 18-19.)
However, Member Cogdal also testified that she voted based upon the evidence presented
during the siting hearings. (PCB2 at 24.)
There is a presumption that administrative officials are objective and capable of fairly
judging a particular controversy. (Waste Management, 175 Ill.App. 3d 1023, 1040, 530
N.E.2d 682, 695 (2d Dist. 1988); and Citizens for a Better Environment v. Pollution Control
Board, 152 Ill.App.3d 105, 111, 504 N.E.2d 166, 171 (1st Dist. 1987.) In Waste
Management, the appellate court stated:
Moreover, the fact that an administrative official has taken a
public position or expressed strong views on an issue before the
administrative agency does not overcome the presumption.
Where, as here, an administrative body operates in an
adjudicatory capacity, bias or prejudice may only be shown if a
disinterested observer might conclude that the administrative
body, or its members, had in some measure adjudged the facts as
well as the law of the case in advance of hearing it.
175 Ill.App.3d 1023, 1040, 530 N.E.2d 695. Furthermore, Section 39.2(d), as amended in
1992, provides in relevant part:
The fact that a member of the County Board or governing body
of the municipality has publicly expressed an opinion on an issue
related to a site review proceeding shall not preclude the member
from taking part in the proceeding and voting on the issue.
(415 ILCS 5/39.2(d) (1997).)
We find no evidence in the record which overcomes the presumption of objectivity
regarding Member Cogdal. Member Cogdal testified that she voted in favor of siting based
upon the evidence presented. Member Cogdal's testimony clearly shows that, although she
may have expressed an opinion on the siting, she based her decision upon the information in
the record. Therefore, the Board finds that neither Member Cogdal's vote nor her ownership
of the hauling operation created a conflict of interest which made her participation in the siting
proceeding fundamentally unfair.
In Slates
et al
. v. Illinois Landfills, Inc., and Hoopeston City Council, (September 23,
1993) PCB No. 93-106 (
rev'd
on other grounds Illinois Landfills, Inc. v. PCB, slip op. No. 4-
94-0041 (4th Dist December 4, 1994) (unpublished rule 23 order)), the Board found that an
alderman who was contractually employed by the applicant prior to the siting application did
not have a conflict of interest which required that he be disqualified. (Slates, at 15.)
Additionally, in our decision in Board of Trustees of Casner Township v. County of Jefferson,
(April 4, 1985), PCB 84-175 and PCB 84-176 (consolidated), the Board held that excavating
activities performed by a county board member at the site of the proposed facility, during the
12
pendency of the request for site approval, did not reach the level of a disqualifying conflict of
interest. (Casner Township, at 10-11.)
County Board Member Donald Jordan. Residents argue that Member Donald Jordan
did not avail himself of the record and that he was not familiar with the evidence. They also
argue that Member Jordan misunderstood the burden of proof. In support, they contend that
Member Jordan told the press that he voted in favor of the landfill siting because, "most of the
criteria were met." (Residents Br. at 33.) LandComp and LaSalle argue that the record shows
that Member Jordan believed that all the criteria were met when he voted.
Member Jordan testified that he was elected to the County Board after the first siting
decision was made. He testified that on remand, he read summaries of the first siting hearing
but probably did not read all of the original transcripts. (PCB2 at 43 and 56.) There was
some confusion as to whether the documents he read were summaries or transcripts. (PCB2 at
43 and 54.) Member Jordan testified that he only attended one evening siting meeting and that
he never heard any of the testimony. (PCB2 at 53.) Member Jordan also testified that he
talked to the press after the vote. He did not remember specifically stating that most of the
criteria were met, but did remember that at the time of the conversation he was plowing snow
on a busy night while talking on a portable phone. (PCB2 at 44.) Member Jordan also
testified that he believed all the nine siting criteria were met. (PCB2 at 44.)
In City of Rockford v. County of Winnebago, 186 Ill.App.3d. 303, 542 N.E.2d 423
(2d Dist. 1989), the appellate court stated "whether the board members availed themselves of
the record is not an issue relevant to this case, as there is no such requirement that they do so."
(Rockford, 186 Ill.App.3d at 312, 542 N.E.2d at 430.) Similarly, in Waste Management of
Illinois, Inc. v. PCB, 123 Ill.App.3d 1075, 463 N.E.2d 969 (2d Dist. 1984) the court stated
that the entire county board need not be present at the hearings as long as the record is
available for board member review. (Waste Management, 123 Ill.App.3d at 1080-1081, 463
N.E.2d at 974.) Under controlling case law, the fact that Member Jordan was not present for
most of the siting hearings is not enough to disqualify him or to make the proceedings
fundamentally unfair. As for the issue of telling the press that "most of the criteria were met,"
Member Jordan testified that he does not fully remember the entire statement he made because
it was a busy night and he was talking to the press on his cellular phone while plowing snow.
Even assuming that the statement was an exact quote, Member Jordan testified that he believed
at the time of the vote that all the nine siting criteria were met. Therefore, the Board does not
find anything in the record that demonstrates Member Jordan’s action rendered the siting
proceeding fundamentally unfair.
County Board Member Tom Mowinski. Residents argue that Member Tom Mowinski
demonstrates an inherent bias on behalf of LaSalle and the County Board chairman in favor of
the applicant. (Residents Br. at 33.) They premise this argument on the allegation that
Member Mowinski was told by the County Board chairman that if he did not vote in favor of
the siting application, the state would come in and site a landfill. (Residents Br. at 33.)
Member Mowinski did not vote on the application. (PCB2 at 65.) The Board finds that since
Member Mowinski did not vote on the siting application challenged in this proceeding, there is
13
no issue as to whether his actions caused the proceeding to be fundamentally unfair.
Therefore, we will not further address whether Member Mowinski should be disqualified.
Residents’ make a general allegation that county board members other than Member
Mowinski were similarly "misinformed regarding the law or the consequences of the denial of
the Application." (Residents Br. At 33.) The record does not support the Residents’ general
allegation that other County Board members were misinformed. Residents offer no evidence
in support this general allegation. The record only shows that Member Mowinski testified that
the County Board chairman did not tell him the state would site the landfill, and the chairman
testified to that as well. (PCB2 at 65-68; 118.) Therefore, the Board finds that Residents have
failed to sustain their burden of proof concerning their general allegation.
County Board Member Glenn Garretson. Residents argue that Member Glenn
Garretson read only the condensed version of the record and, if this was the hearing officer
report, it was biased on behalf of the applicant. Residents next urge the Board to reject the
case law standing for the proposition that local decision-makers need not necessarily read the
entire record as long as it is available to them. In support, Residents argue that a decision
based upon the evidence is a requirement of any adjudicatory process and what distinguishes it
from a political process. Residents argue that because the County Board rejected the Siting
Committee's Report and because the vote was so close, the Board should distinguish this case
from prior legal precedents. (Residents Br. at 34.)
LandComp argues that the record shows that Member Garretson's actions were proper
and that there was no showing of bias or conflict on his part. LaSalle argues that Member
Garretson did not base his vote on the hearing officer's summary and that he believed the
criteria were met. LaSalle also contends that Member Garretson relied on the minority report
and a little of his own common sense when making his decision. LaSalle contends that Section
39.2 of the Act only requires a county board member to indicate which criteria are met, but
does not require a detailed inquiry into the county board member's mental processes. (County
Br. at 31.)
Member Garretson testified that he was not present for most of the siting hearings and
only present for part of the siting hearings he attended. (PCB2 at 86-87.) He stated that he
read some of the transcripts and the "condensed" version. Garretson also stated that he had all
of the transcripts in his possession. (PCB2 at 87-88.) Member Garretson testified that his
mind was not made up and that he was not even sure on the day he voted how he would vote.
(PCB2 at 90.) Member Garretson also stated he believed the criteria were met. (PCB2 at 89.)
For the same reasons discussed above concerning Member Jordan, there is no
requirement that Member Garretson attend all the hearings or read all the information in the
record in order to be qualified to vote on the siting application. The Board finds no reason to
overrule its precedents and the appellate case law on this issue.
County Board Member Andree Marie Koban. LandComp argues that if any of the
County Board members should be disqualified, it is Member Andree Marie Koban.
14
LandComp cites several examples in its brief which show that Member Koban had contact with
the objectors and that she was opposed to the facility being built. (LandComp Br. at 46.)
Member Koban testified that she was opposed to the landfill and that she ran in the
1994 election on that platform. (PCB2 at 164-165.) Member Koban also testified that she was
on the board of directors for Residents Against a Polluted Environment in 1992. (PCB2 at
165.) Member Koban also stated that she has made contributions to that objectors’ group;
attended a meeting of the Residents' group in November of 1996; and that she had
conversations with Mr. Markwalter (the group's current president) after the Board remanded
the case for a second set of siting hearings.
First, the Board notes that there is nothing improper with Member Koban taking a
position on the siting application. As stated before, Section 39.2(d) of the Act specifically
allows her to do so. (415 ILCS 5/39.2(d) (1997).) As for the contacts, even if we were to
find that the constituted
ex parte
contacts, the applicant cannot allege that the proceedings were
fundamentally unfair because the applicant prevailed at the siting hearing. In Waste
Management, the court said, "although personal
ex parte
communications to county board
members in their adjudicative role are improper, there must be a showing that the complaining
party suffered prejudice from these contacts" (Waste Management Inc., 175 Ill.App.3d 1023,
1043, 530 N.E.2d 682, 698 (2d Dist. 1988).) Since LandComp clearly did not suffer any
prejudice from the actions of Member Koban, we will not reach the question of whether her
meeting and conversations with one of the petitioners constitutes an
ex parte
contact.
Bias of the County Board Hearing Officer
In their final argument concerning fundamental fairness of the siting proceeding,
Residents allege that the hearing officer demonstrated consistent and thorough bias against the
objectors and in favor of the applicant. Residents assert that this bias was demonstrated at
hearing, and in the hearing officer’s report to the Siting Committee. For the most part,
Residents restate arguments from the first set of hearings upon which the Board has already
ruled in PCB 96-243.
LandComp urges the Board to affirm its earlier order. (LandComp Br. at 35.) We
will do so for the purpose of clarity. We affirm our earlier decision in PCB 96-243 finding
that neither the hearing officer’s actions nor his report demonstrated bias. Also, we affirm our
earlier decision that the hearing officer’s decisions to limit questions on issues involving the
Plan and economic issues did not demonstrate bias. (PCB 96-243 at 20.)
Residents allege anew that the hearing officer demonstrated bias at the county hearings
held subsequent to the Board’s remand. (Residents Br. at 46.) Residents allege that the
hearing officer limited their questioning of Mr. DeGroot about his and LandComp’s financial
status. Residents again argue that although financial status is not one of the nine criteria, the
County still has a right to consider economic status of the applicant as part of its legislative
inquiry. (Residents Br. at 47.)
15
In response, LandComp argues that the Residents were allowed to question Mr.
DeGroot regarding financial matters and volume VII at the remand hearings. (LandComp Br.
at 35.) Additionally, LandComp argues that even when the County Board hearing officer
properly sustained an objection regarding relevance of questions about LandComp’s financial
status, the Residents were allowed to continue questioning Mr. DeGroot through an offer of
proof. (LandComp Br. at 35.) Finally, LandComp argues that the hearing officer’s rulings
were proper and did not demonstrate bias because the applicant’s financial status is not one of
the siting criteria. (LandComp Br. at 37.)
In County of Lake v. Pollution Control Board, 120 Ill.App.3d 89, 457 N.E.2d 1309
(2d Dist. 1983), the appellate court affirmed the ruling of the Board striking a condition
imposed by the siting authority which required the siting applicant to provide a bond as proof
of financial responsibility. The court held that the Board properly struck the condition because
Section 39.2 does not authorize the County to require financial responsibility. The court
stated:
Financial responsibility is not part of the . . . criteria to be considered in granting
approval. It is only indirectly related to [criterion] (v) but not sufficiently to find that it
is implied.
(Id. at 1317 and 102.)
The Board also addressed the question of an objector’s right to present evidence on the
issue of financial assurance in T.O.T.A.L. and Concerned Adjoining Owners v. City of
Salem, Roger Kinney, City Manager and Roger Freidricks, PCB 96-79 and PCB 96-82
(consolidated) (March 7, 1996) (
aff'd
in Slip Op. No. 5-96-0244 (Ill. Ct. App. 5th Dist, June
2, 1997)). In the local siting hearing, objectors to the proposed expansion of a city-owned
landfill sought to examine the city manager on the issues of economics and profitability, where
the city manager was acting as the applicant for siting approval on behalf of the city. The
hearing officer in the local siting proceeding denied their attempts to call the city manager as
an adverse witness. Finding that the hearing officer’s actions did not render the proceedings
fundamentally unfair, the Board stated:
While the Board understands TOTAL’s arguments that economics are connected to the
ability of the landfill expansion to be operated in a manner to meet the criteria
concerning public health, safety and welfare in Section 39.2(a) of the Act, the exact
language of the criterion states “. . . the facility is so designed, located and proposed to
be operated . . .” and does not require that the local siting authority determine the
solvency of the applicant. The issue of financial assurance of the applicant is addressed
at the permitting stage before the Illinois Environmental Protection Agency..
(PCB 96-79 and PCB 96-82 (consolidated), at 16-17.)
Since the County Board is not required to determine the solvency under the Act, we
find that the hearing officer’s ruling limiting questions about the financial status of the
applicant was proper. We find that the hearing officer’s limitation of cross-examination
16
regarding economic issues does not demonstrate bias. Accordingly, we find that none of these
actions rendered the siting proceeding fundamentally unfair.
SITING CRITERIA
When reviewing a local decision on the nine criteria found in Section 39.2(a) of the
Act, this Board must determine whether the local decision is against the manifest weight of the
evidence. (McLean County Disposal, Inc. v. County of McLean, 207 Ill.App.3d 477, 480,
566 N.E.2d 26, 29 (4th Dist. 1991); Waste Management of Illinois, Inc. v. Pollution Control
Board,160 Ill.App.3d 434, 513 N.E.2d 592, (2d Dist. 1987); and E & E Hauling, Inc. v.
Pollution Control Board, 116 Ill.App.3d 586, 451 N.E.2d 555 (2d Dist. 1983),
aff'd in part
(1985) 107 Ill.2d 33, 481 N.E.2d 664.) 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, 115 Ill.App.3d 762, 769, 451 N.E.2d 262, 265 (4th Dist. 1983).)
The Board, on review, is not to reweigh the evidence and where there is conflicting
evidence, the Board is not free to reverse merely because the lower tribunal credits one group
of witnesses and does not credit the other. (Fairview Area Citizens Task force v. Pollution
Control Board, 198 Ill.App.3d 541, 550, 555 N.E.2d 1178, 1184 (3d Dist. 1990); Tate v.
Pollution Control Board, 188 Ill.App.3d 994, 1021, 544 N.E.2d 1176, 1195 (4th Dist. 1989);
and Waste Management of Illinois, Inc. v. Pollution Control Board, 187 Ill.App.3d 79, 81,
543 N.E.2d 505, 507 (2d Dist. 1989).) Merely because the local government could have
drawn different inferences and conclusions from conflicting testimony is not a basis for this
Board to reverse the local government's findings. (File v. D & L Landfill, Inc., (August 30,
1990), PCB 90-94,
aff'd
File v. D & L Landfill, Inc., 219 Ill.App.3d 897, 579 N.E.2d 1228
(5th Dist. 1991) (File).)
The Need Criterion at Section 39.2(a)(1)
Section 39.2(a) of the Act provides that the applicant must demonstrate compliance
with nine criteria set out therein. If the pollution control facility meets the criteria, the county
board must grant local siting approval. Section 39.2(a)(1) of the Act sets forth the first of the
nine siting criteria. It provides in pertinent part, that: “the facility is necessary to
accommodate the waste needs of the area it is intended to serve.” (415 ILCS 5/39.2(a)(1)
(1997).)
With respect to this criterion, the Residents argue that neither the proposed service area
nor LaSalle County needs the facility and that LandComp failed to satisfy its burden of proof
concerning this criterion. (Residents Br. at 6.) Residents state that in order to show need an
applicant must only use the state annual report on disposal capacity to show that the service
area in question is in “imminent danger of exhausting disposal capacity.” (Residents Br. at 5.)
Additionally, Residents argue that the only expert on the issue of need presented by LandComp
was Mr. Walter Willis, of Patrick Engineering. Patrick Engineering is the firm that prepared
LandComp’s application for siting approval. Residents argue that no independent expert was
provided, and further argue that on cross-examination, Mr. Willis testified that he had not
17
considered incineration or out-of-state facilities when calculating the remaining disposal
capacity, even though Residents allege that some incinerators receive waste from the proposed
service area. (Residents Br. at 6.) Residents argue that the record shows that new capacity is
coming on line in Illinois and that in LandComp’s proposed primary service area, capacity is
higher than it has ever been. (Residents Br. at 6.) Finally, Residents argue that the lack of
need for the facility is evidenced by LandComp’s designation of a secondary service area.
(Residents Br. at 6.)
In response, LandComp argues that Mr. Willis testified that the only public permitted
landfill currently operating in LaSalle is scheduled to close in 1997. (LandComp Br. at 31
siting CH at 2133.) LandComp also argues that Mr. Willis’s testimony showed that there are
approximately four and a half years of total waste capacity remaining in the secondary service
area proposed by LandComp. (LandComp Br. at 31 citing CH at 2146, 2178.) LandComp
states that although the landfill capacity in the proposed service area may have doubled, the
rate of waste disposal in this same area has nearly tripled. (LandComp Br. at 31 siting App.
Vol. I, Fig 1-9.) LandComp also points out that the Residents did not call any witnesses to
rebut Willis’ testimony. LandComp argues that Mr. Willis did not have to consider sited, but
not permitted, facilities in his analysis of remaining capacity and yet the Application for siting
approval did analyze sites within a 50-mile radius of the proposed facility, including out-of-
state facilities. (LandComp Br. at 32.)
LandComp contends that the out-of-state facilities have a shorter life expectancy than
the landfills within Illinois. (LandComp Br. at 32.) LandComp also states that there is only
one incinerator in the area and that it is in Chicago and only accepts waste from the City of
Chicago. LandComp points out that the Robbins facility is under construction but had not yet
received its operating permit. (LandComp Br. at 32 citing CH at 2178 and 2179.) Finally,
LandComp argues that the inclusion of a secondary service area is not relevant to whether or
not the facility is needed because it is the applicant alone who defines the service area.
(LandComp Br. at 32.)
LaSalle’s arguments are similar in substance to those of LandComp. (County Br. at 5-
10.) However, LaSalle also notes that both Siting Committees, including the second
committee which recommended against siting approval, found that the applicant had
established need. (County Br. at 10.)
The Application submitted by LandComp defines the service area as an initial service
area and a secondary service area. (App. Vol. I, Sec. 1.0.) The initial or primary service
area consists of 10 counties: LaSalle, Putnam, Grundy, Marshall, DeKalb, Lee, Bureau,
Kendall, Woodford, and Livingston (CH 2132). The secondary service area is defined as
Illinois EPA Regions I-IV. (App. Vol. I, Sec. 1.0 p. 1-3-1-4 and CH at 2132.) In the
Application, LandComp proposed that it only be permitted to accept waste from the secondary
service area with County Board approval. However, the Host Agreement states that the
County cannot unreasonably delay or withhold approval to accept waste from the secondary
service area if the landfill cannot attract at least 140,000 tons of waste annually from the
primary service area. (App. Vol. I, Sec. 1.0 p. 1-4.)
18
At the County Board hearings, Mr. Willis testified that in computing disposal capacity
for landfills within the 50 mile radius required by LaSalle, he analyzed the data from the
Illinois EPA report about available disposal capacity for Illinois facilities. For the contiguous
states of Iowa, Wisconsin, and Indiana, he analyzed similar reports and corresponded with
their regulatory agencies. (CH at 2136-21368.) Mr. Willis also testified that he calculated the
volume of waste which will be produced in the initial service area and, after taking into
account future recycling goals for the ten counties in the service area, he found that it will be
approximately 400,000 tons per year initially and approximately 345,000 tons per year in the
year 2021. (CH at 2140-2143.) By comparing these two calculations, Mr. Willis testified that
he came to the conclusion that there will not be sufficient capacity in the primary service area
in 25 years. (CH at 2143.) He testified that there is approximately 4½ years of disposal
capacity left in the primary service area and approximately 5½ years of disposal capacity in
the secondary service area. (CH at 2143-2144) Based upon his investigation, Mr. Willis
testified that it was his opinion that the landfill is needed to meet the disposal needs of the
primary and secondary service areas. (CH at 2147-2148.)
In its Application, Volume I Section 1, LandComp gave a history of landfills in the
primary service area showing that the number of operating landfills in the area has declined
from 23 to 7 during the late 1980’s to 1990’s. (Vol. I. Sec. 1 p. 1-9.) LandComp also states
that the existing landfills located in the primary service area are expected to reach capacity by
the year 2000 or 2001. (Vol. I. Sec. 1 p. 1-23. See also, p. 1-32 and 1-36) Additionally,
LandComp estimates that approximately 10,313,000 tons of waste will need to be disposed
within a 25 year period. This number was reached by multiplying disposal rates by population
projections from the Illinois Bureau of the Budget. (Vol. I. Sec. 1 p. 1-30.) LandComp also
included a rate that took in to account diversion goals in County Solid Waste Management
Plans in the service area which call for increased recycling. The LandComp estimate for waste
which will need to be disposed in a 25 year period under this scenario was about 8,847,903
tons. (Vol. I. Sec. 1 p. 1-30.) LandComp states in its Application that it will provide disposal
capacity to LaSalle County for at least 25 years. (Vol. I. Sec. 1 p. 1-41.)
Again, Section 39.2(a)(1) of the Act provides that local siting approval shall only be
granted if "the facility is necessary to accommodate the waste needs of the area it is intended
to serve". In order to meet this statutory provision, an applicant for siting approval need not
show absolute necessity. (Clutts v.Beasley, 185 Ill.App.3d 543, 546-547, 541 N.E.2d 844,
846 (5th Dist. 1989); A.R.F. Landfill v. Pollution Control Board, 174 Ill.App.3d 82, 91, 528
N.E.2d 390, 396 (2d Dist. 1988); and Waste Management, Inc., 122 Ill.App.3d 639, 644,
461 N.E.2d 542, 546.) The Third District has construed "necessary" as connoting a "degree
of requirement or essentially." (
Id
. at 546.) The Second District has adopted this construction
of "necessary," with the additional requirement that the applicant demonstrate both an urgent
need for and the reasonable convenience of the new facility. (Waste Management, Inc., 175
Ill.App.3d 1023, 1031, 530 N.E.2d 682, 689 (2d Dist. 1988); and A.R.F. Landfill, 174
Ill.App.3d 82, 91, 528 N.E.2d 390, 396; Waste Management of Illinois, Inc. v. Pollution
Control Board, 123 Ill.App.3d 1075, 1084, 463 N.E.2d 969, 976 (2d Dist. 1984).) The First
District has stated that these differing terms merely evince the use of different phraseology
19
rather than advancing substantively different definitions of need. (Industrial Fuels &
Resources/Illinois, Inc. v. Pollution Control Board, 227 Ill.App.3d 533, 545, 592 N.E.2d
148, 156 (1st Dist. 1992).)
After a careful review of the record, the Board finds that the evidence is not sufficient
to reverse the County Board’s decision on the need criterion. The Board does not find that the
fact that Mr. Willis did not address potential incineration facilities in his calculations sufficient
evidence to overturn the County Board's decision as being against the manifest weight.
LandComp, in its Application and through the testimony of Mr. Willis, demonstrated that the
facility is necessary. Contrary to Residents’ argument, the fact that no other expert besides
Mr. Willis was presented, does not negate the fact that his testimony specifically addressed the
need criterion or that sufficient evidence was presented for the County Board to find that the
need criterion had been met. Additionally, the Board notes that in Hediger v. D. and L.
Landfill Inc., (December 20, 1990) PCB 90-163, local siting approval based upon this
criterion was affirmed even where opponents presented evidence of landfill capacity outside of
the proposed service area. In this case, the testimony of Mr. Willis, the Application, and the
record provide sufficient evidence of need. The Board concludes that the County Board’s
decision is not against the manifest weight of the evidence.
Health, Safety and Welfare Criterion at Section 39.2(a)(2)
Section 39.2(a)(2) of the Act requires the applicant to demonstrate and the local siting
authority to find that, "the facility is so designed, located, and proposed to be operated that the
public health, safety and welfare will be protected." (415 ILCS 5/39.2(a)(2) (1997).) In its
siting approval, the County Board found that the facility was designed, located, and proposed
to be operated so as to protect the public health, safety, and welfare. (CH at 7583.) In
reviewing this decision, the Board must apply the manifest weight of the evidence standard.
We are mindful that in Clutts v. Beasley, 185 Ill.App3d 543, 547, 541 N.E.2d 844, 846 (5th
Dist. 1989), the court stated that this criterion is not a guarantee against contamination.
There are three basic areas of disagreement between the parties relating to the issue of
whether the facility is so designed as to protect the health safety and welfare of the public.
The areas of dispute are: (1) the hydrogeological characterization of the site; (2) the design of
the facility; and (3) the credibility of the witnesses.
We have reviewed the record in this case and determined that all the information
argued by the parties was presented to the County Board as part of the record before it when it
granted siting approval. The decision-making authority rests solely with the local government.
The local government, in this case the LaSalle County Board, may give lesser or greater
weight to whichever witnesses or evidence it chooses. Since all the information was before the
County Board, the credibility of the witnesses is of critical concern. In File, 219 Ill.App.3d.
897, 907, 579 N.E.2d 1228, 1236 (5th Dist. 1991), the appellate court stated that the decision
as to whether the criterion is met is purely a matter of assessing credibility of expert witnesses.
After reviewing the arguments made by the parties about the credibility of the witnesses, we
find that the County Board was justified in crediting the information contained in the
20
Application and the testimony offered by the applicant's witnesses. The County Board made a
reasonable judgment and an opposite result is not clearly evident, plain, or indisputable.
Therefore, we find that the County Board's decision that the facility was designed, located,
and proposed to be operated so as to protect the public health, safety, and welfare was not
against the manifest weight of the evidence.
For the record, we have set forth in detail the arguments about each of the three issues
made by each of the parties. Although the credibility of the witnesses is the critical issue since
all the technical information was before the County Board when it made its decision, we will
begin this summary with the two technical challenges: the hydrogeological characterization of
the site and the overall design of the proposed facility. We defer our discussion about the
witnesses’ credibility because without these two summaries, the context of the credibility
argument is more difficult to understand.
The overall design of the facility is critical to understanding the technical summaries.
As described in LandComp’s Application, the proposed facility is designed to rely upon three
liners. The first liner consists of a 60-mil high density polyethylene (HDPE) geomembrane
liner which will be installed above the second liner. The second liner proposed is a
recompacted clay liner that is, at a minimum, 5 feet thick with a maximum hydraulic
conductivity of 1x10
-7
cm/sec. and a plasticity index of greater than or equal to 5. The final
liner proposed is the
in situ
shale which will be under the recompacted clay liner and have an
average thickness across the site of 13 feet. (Vol. I Sec. 2.5 p.27-30.) The proposed design
of the landfill also calls for a leachate drainage and collection system, a stormwater control
system, a groundwater and gas monitoring system, and a composite final cover system. (
Id
. at
p.1.)
Hydrogeological Characterization of the Site
LandComp performed a hydrogeological characterization of the site where the landfill
is to be located. After reviewing historical geological information in that area, LandComp
performed 3 tests to determine the bulk permeability. First, LandComp performed 7 packer
tests to help them decide where to perform slug tests, which are more precise. LandComp
then proceeded to perform 6 slug tests in the lower shale, 5 falling head tests and 1 rising head
test. Afterwards, LandComp collected 29 soil borings and sent them to a lab to be used in
triaxial hydraulic conductivity tests.
First, Residents dispute LandComp's hydrogeological characterization of the
in situ
shale which will be used as the third liner. Residents claim that the shale is fractured and that
the bulk permeability of the underlying shale is higher than that estimated by LandComp.
(Residents Br. at 7.) Next, Residents dispute the test methods used, and the interpretations of
those test results having to do with the permeability of the
in situ
shale. Residents’ concern
about the third liner,
i.e
., the
in
situ
liner, appears to be due to a "major" aquifer being
located below the proposed landfill. Residents are concerned that since the site is underlain by
shale and sandstone, contamination of the aquifer is more likely. They contend that although
LandComp relies upon the shale and sandstone to give protection to the aquifer, LandComp
21
did not compensate for the "extensive fracturing" found in the shale throughout the site.
(Residents Br. at 7.) Finally, Residents challenge the computer model Patrick Engineering
used to interpret the data collected.
Shale Formation is Highly Fractured and Permeable. Residents argue that the fractured
(sometimes described as weathered) areas in the shale, that were identified in the boring logs
of Patrick Engineering were not selected for testing, and therefore the test results give a false
sense of security. Residents contend that Patrick Engineering used soil borings so that the
permeability of the shale would be in the range of 1x10
-9
cm/sec, which is lower than the
permeability required for recompacted clay liners. Residents disagree with these numbers.
(Residents Br. at 7.) Instead, Residents believe that the
in situ
shale has a higher permeability,
perhaps as high as 1x10
-6
cm/sec range. (Residents Br. at 9.) Residents contend that it is
inappropriate to use a laboratory or matrix permeability test to measure the bulk permeability
of a fractured unit. They argue that the applicant relied upon the laboratory test results from
shale samples to extrapolate the permeability of the entire shale unit. Thus, Residents contend
that the applicant did not really measure the bulk permeability of the shale. (Residents Br. at
7-8.)
Residents also argue that the type of shale underlying the proposed site allows water to
move through the
in situ
material. Residents argue that their expert witnesses, Mr. Charles
Norris and Mr. David Hendron, supported the conclusion that the bulk permeability of the
shale is controlled by the fracture or secondary structure flow, and that this conclusion was not
rebutted by LandComp. Residents also contend that their expert witnesses, Messrs. Norris and
Hendron, testified that the soil borings taken by Patrick Engineering show that Residents’
conclusions about the shale being fractured is correct and that the underlying shale is subject to
the chemical effects of penetrating groundwater. Based on this evidence, the Residents argue
that LandComp is wrong to interpret the test results as demonstrating that the underlying shale
is a tight, impermeable material. (Residents Br. at 8.)
Residents argue that the testimony of their witnesses supports Residents’ belief that the
underlying shale at the site is likely to have high permeability. They further contend that
Patrick Engineering's groundwater impact assessment models show an environment which does
not exist. Residents argue that the models are wrong because they assume no horizontal flow
in the upper units or the sandstone and because they are based upon unreasonable and
unverifiable assumptions about the low permeability of the shale. (Residents Br. at 13.)
In response to Resident's arguments about the permeability of the site, LandComp
argues that it performed detailed testing which addressed all of the geological materials found
beneath the site. LandComp states that it performed packer, slug, and laboratory tests of the
soil and rock which would be excavated and for the shale which will remain under the liner for
the site. LandComp also states that the packer test was used to obtain a "rough" idea of
horizontal conductivity to find locations for taking the slug tests. In turn, the slug tests found
an average horizontal conductivity of 2.08x10
-8
cm/sec with the highest test being 4.19x10
-8
cm/sec. LandComp argues that the slug tests captured the secondary features of the shale such
as weathering and partings within the tested zones. LandComp also argues that its triaxial
22
hydraulic conductivity tests to measure vertical conductivity, which included tests on the lower
shale and samples containing fissures and weathered zones, showed that the conductivity of the
lower shale was 2.7 x10
-9
cm/sec. LandComp believes that all of its testing shows that the
underlying shale is highly impermeable. (LandComp Br. at 12-13.)
In sum, LandComp argues that the evidence demonstrates the County Board's decision
was not against the manifest weight of the evidence, and that the evidence shows that the shale
which would be left under the liner is highly impermeable and would retard the movement of
any groundwater which might escape the leachate collection system. (LandComp Br. at 17.)
Test Methods. Residents also argue that the packer tests done by Patrick Engineering
should have been included in the computations for the permeability of the shale. Residents
contend that the packer test show that the shale has a permeability of greater than 1x10
-7
cm/sec. (Residents Br. at 10.) Residents believe LandComp's explanation for not including
the packer tests is weak. LandComp explained that it did not include the packer test results,
although they demonstrated high permeability, because these results were possibly caused by
leakage around the packers. Residents argue that this explanation is only a guess by Patrick
Engineering, which cannot be substantiated. (
Id
.)
Residents next attack LandComp's reliance upon the slug tests to establish the low
permeability of the shale. Residents dispute Patrick Engineering’s methodologies and
interpretations of the six slug tests performed over the 185 acre site. Residents argue that their
experts showed that the shale contains swelling clays and that Patrick Engineering's well
completion and development methodology, which involved flushing the borings with fresh
water, caused swelling in the shale. They contend that the flushing reduced the measured
permeability in the area of the swelling. Residents contend that this problem was then made
worse because Patrick Engineering used the falling head, instead of rising head, methodology
in five of the six tests. Residents argue that although Patrick used ASTM standards, that
sometimes the acceptable practice is not necessarily the best practice. More specifically,
Residents argue that because two of the six tests showed data in a curvilinear pattern, which
would indicate a fast initial response that slowed over time, that these "anomalous" test results
warranted looking beyond the general procedures,
i.e
., the ASTM procedures followed by
Patrick Engineering. (Residents Br. at 10-11.) Finally, Residents argue that LandComp left
out soil borings from its Application because they showed intact vertical fractures. Residents
contend that the borings show that the fractures were not a result of the drilling process for the
testing, but instead show that there is a low permeability secondary flow system in the shale.
Beginning with the packer test, LandComp argues that all the test results for the packer
test are found in the record, along with an explanation about why leakage sometimes occurs
when this procedure is used. LandComp also contends that packer tests alone are not enough
data and that the more precise slug tests are what provides evidence for LandComp's
conclusions about horizontal permeability. LandComp argues that it did not disregard the less
accurate packer tests but, instead used them to find out where the slug tests should be run.
LandComp goes on to state that the packer test which their engineer suspected of leaking at B-
13, showed a result of 7.3x10
-4
cm/sec., and was followed up with a slug test showing a value
23
of 3.19x10
-8
cm/sec. LandComp disagrees with Mr. Hendron’s belief that the packer test was
inconsistent with the Rock Quality Designation (RQD) for that area. LandComp argues that
the RQD shows consistency with the slug test at boring B13 and that Patrick Engineering's
explanation that the packer test was suspect is consistent with the evidence. (LandComp Br. at
14. See also, County Br. at 13.)
LandComp also disagrees with Residents’ contention that the slug tests were
compromised when potable water was used to flush the boring wells after completion of
drilling. LandComp argues that Residents’ contention that the water caused the shale to swell
and seal off the wells leading to a reduced measure of permeability is incorrect. LandComp
argues that the Board should discount Mr. Norris' testimony because he could not cite any
theory or literature that would support this contention that potable water can seal the wells and
reduce permeability. In fact, LandComp contends, the ASTM standards do not make any
reference to using what they deem formation water (water which is in chemical balance with
the shale) in connection with the slug tests. (LandComp Br. at 15 See also, County Br. at 14.)
Continuing with its argument that the tests were done correctly, LandComp also argues
that Illinois Environmental Protection Agency’s instructions for permitting landfills do not call
for the use of rising head tests, but instead permit the applicant to use either falling or rising
head tests. LandComp contends that because of conditions at the site, the falling head test was
appropriate. LandComp also points out that it performed a rising head test in the shale and
that it showed the second lowest conductivity,
i.e
., 5.7x10
-9
cm/sec, of all the slug tests
performed in the lower shale which would remain below the man-made liner. (LandComp Br.
at 16; County Br. at 14.)
Use of Computer Model. Residents also attack the interpretation of the data collected
by Patrick Engineering. They cite Patrick's decision to override the computer program which
generated the data results to do a "visual match" on the data points for two of the slug tests.
They argue that the visual match ignored the early data points with a fast response and higher
permeability. (Residents Br. at 12.)
LandComp disagrees with the Residents argument that the slug tests should be plotted
by a computer match. LandComp argues that the manual for the model calls for a visual
match for setting the slope of the line and plotting the data points. LandComp also justifies
Patrick Engineering’s decision to throw out the early data, which showed movement of the
water out of the slug test piezometer, because the anomalies relating to draining the sand pack
or developed zone around the well can be eliminated by ignoring the early data points and
using the second straight line portion of the data plot for calculation of hydraulic conductivity.
(LandComp Br. at 16.)
Design of the Facility
Residents next argue that the facility's design is inadequate as to leachate generation
and collection, and as to the suitability of the
in situ
materials which will be used to construct a
recompacted clay liner. (Residents Br. at 7.) Residents contend that "a number of important
24
and necessary design elements were simply lacking." Residents’ concern about the lack of
information stems from their argument that the needed information relates to LandComp's plan
to eliminate leachate. Residents argue that without more information about the design
elements, the viability of LandComp's design, particularly with regard to the leachate
collection system, is dependent upon LandComp's representations. (Resident's Br. at 13-14.)
Residents are also concerned that the Application did not contain information regarding
berm construction, construction sequencing, or a waste placement plan. Residents argue that
the Application and its accompanying information should contain information on storm water
diversion, intermediate berms, and temporary access roads. Residents point to the testimony
of Mr. Hendron, a vice president of a company who designs and builds landfills, that these
types of design details are details that he would expect to see in a complete and thorough
application. (Residents Br. at 13 citing CH at 1354 and CH at 2923.)
In response to Residents' arguments about the design of the proposed landfill,
LandComp argues that it has addressed the design issues brought up by Residents. LandComp
contends that the Application contains a detailed construction sequencing plan and a leachate
management system. (LandComp Br. at 18, citing Vol. I Sec. 2.5.23 and 2.9.)
Residents next argue that the leachate generation modeling done by LandComp used
assumptions relating to the slope, shape, and cover of the facility which were "unrelated to
actual construction and operations and not supported by any realistic expectation." Residents
argue that the model made assumptions which were not included in the Application and that
LandComp misunderstood field capacity. (Residents Br. at 14.) Specifically, Residents argue
that LandComp's projections for field capacity assumed that the waste would reach 100%
saturation before generating leachate and that there would be no channeling of water through
the waste. Residents claim Mr. Hendron's testimony showed that there would be pockets of
dry waste juxtaposed to pockets of water in the landfill as opposed to the water soaking into
the waste throughout the landfill until the waste was saturated. Residents argue that for
projecting leachate generation, field capacity is only relevant to approximately 5 to 10% of the
total waste. Residents argue that one could expect as much as 1,200 gallons of leachate
generation per day during initial phases and 300 to 600 gallons per day with intermediate daily
cover, in contrast to LandComp’s leachate generation model which predicts no leachate
generation. (Residents Br. at 14-15.)
LandComp explains that its leachate infiltration modeling was done using the HELP
model which predicts long-term leachate generation. LandComp contends that USEPA has
approved the HELP model and that Patrick Engineering ran the model in accordance with the
requirements found at 35 Ill. Adm. Code 811.307. LandComp contends that the HELP model
was not used to predict leachate in the initial phase of operations even though it is in this
context that Residents "take issue with the application." LandComp argues that the model's
purpose is to predict leachate for post-closure and to assist in designing the cap for closure.
(LandComp Br. at 19, See also County Br. at 16.)
25
LandComp disagrees with Mr. Hendron's testimony and Residents' contention that in
the early stages of operations significant volumes of leachate will be generated. LandComp
argues that on cross-examination, it became clear that Mr. Hendron's "speculation" was
inconsistent with a study published by his own employer which demonstrated an initial leachate
generation rate of 363 gallons per acre per day (gpad), which would decline to 106 gpad
within four months, 20 gpad by the end of the first year and 10 gpad by the end of the second
year of landfill operation. (Residents Br. at 19; County Br. at 16.)
LaSalle argues that although leachate generation predictions varied, the size of the open
area of operations and the operating factors will influence the actual amount of leachate which
is generated. In any case, LaSalle points to the testimony by Mr. Andy Inman of Patrick
Engineering that there will be five days of leachate storage capacity and additional leachate
storage tanks if needed. LaSalle also points out that Condition O of the County Board’s
resolution requires review on an annual basis of the leachate generation at the site and an
increase as necessary of the storage tank capacity. (County Br. at 17; CH at 07586.)
Residents are not convinced that LandComp will be able to provide a suitable
recompacted clay liner. They argue that no test liner has been built and that there may not be
enough suitable till to build the liner. They are also concerned that the Tiskilwa Till material,
which LandComp proposes to use, is not plastic enough and will be extremely difficult to
recompact to meet the required minimum standard for the liner. Residents believe that because
most of the Tiskilwa Till is not sufficiently liquid or plastic, there will not be enough material
on site to build the liner to the required standards. (Residents Br. at 15.)
As for liner construction, LandComp argues that Mr. Hendron's testimony was not
persuasive. LandComp contends that on cross-examination, Mr. Hendron admitted that his
firm, GeoSyntnec, had recently proposed to build a liner out of soils with a plasticity index of
only 4, and that the lowest plasticity index at the LandComp site in the Tiskilwa Till was 7,
making it "better than the material Hendron's own firm proposed for its own facility."
(LandComp Br. at 20.) LandComp also argues that the application included laboratory tests of
the actual materials to be used for the liner and that the test established that the Tiskilwa Till
could be compacted to a conductivity of less than 1x10
-7
cm/sec. LandComp also contends
that the Tiskilwa Till and residual shale will be available for constructing the liner.
(LandComp Br. at 20.) Finally, LaSalle contends that the models run by Patrick Engineering
show that the design is more than adequate to protect groundwater quality. (County Br. at
18.)
Credibility of Witnesses
Residents final argument focuses on which witnesses are more credible. They argue
that Mr. Devin Moose of Patrick Engineering was lying and that, "he is not a truthful
individual, and that very little, if anything, he says ought to be believed." (Residents Br. at
15.) They also contend that Mr. Moose acted as an advocate for the proposal instead of a
disinterested expert. (
Id
.) Residents then cite what they contend are many examples of Mr.
Moose being "inconsistent" when testifying. (Residents Br. at 16-17.) They also argue that
Andy Inman of Patrick Engineering was not qualified to draft LandComp's responses to the
26
CDM report. They contend that their witness, Mr. Hendron, better answered CDM's
concerns about site characterization. (Residents Br. at 18-19.)
Residents argue that Patrick Engineering’s responses to CDM's report were
"unresponsive, argumentative, or simply double-talk." Residents argue that CDM brought up
valid concerns, but did not get answers for its concerns. Residents urge the Board to believe
their witness Mr. Norris, who addressed some of CDM's concerns in his testimony, over
Patrick Engineering. (Residents Br. at 20-21.) Residents also urge the Board to look at the
CDM report as another document which disputes the information provided by Patrick
Engineering and LaSalle. (Residents Br. at 22.) They believe that the CDM report backs up
their contention that the groundwater impact assessment was incorrect and that the design of
the leachate generation and collection system was of major concern. (Residents Br. at 24.)
LandComp disagrees with Residents’ argument that CDM's questions to Patrick
Engineering support Residents’ technical criticisms of the application. LandComp contends
that CDM used its questions as a "tool" to understand the application and was satisfied with
the responses that it received. LandComp argues that most of the responses to CDM's
questions were attempts to direct CDM to the material already in the application. (LandComp
Br. at 21-22.)
LandComp argues that CDM was satisfied with Patrick Engineering's answers, but
more importantly that the County Board was satisfied after it had all the evidence before it.
(LandComp Br. at 22.) LandComp points out inconsistencies with the testimony of the
Residents’ witnesses concerning the groundwater impact analysis, alternative calculations for
the conductivity of shale, and the leachate generation model. (LandComp Br. at 23-28.)
LandComp also points to the Siting Committee's Minority Report after the remand hearings
which stated that it did not, "find much credibility in the statements of Mr. Norris and Mr.
Hendron." (LandComp Br. at 28.)
LandComp also challenges the credibility of some of the Residents’ witnesses. For
example, it challenges
Mr. Hendron's testimony about the shale conductivity by pointing out
that he estimated the vertical conductivity of the shale by sticking his head in a street manhole
over a mile from the site. LandComp argues that Mr. Hendron did not know if the water in
the manhole originated from a nearby shale outcrop, and whether that outcrop came from the
same formation beneath the site. (LandComp at 17; County Br. at 14.)
Consistency with County Solid Waste Management Plan at Section 39.2(a)(8)
Section 39.2(a)(8) of the Act requires the applicant to demonstrate and the local siting
authority to find, that the facility is consistent with the plan “if the facility is to be located in a
county where the county board has adopted a solid waste management plan… .” (415 ILCS
5/39.2(a)(8) 1997.) LaSalle has adopted such a plan. In its siting approval, the County Board
found that the facility was consistent with that plan. (CH at 06744 and 06754-06756.
)
Residents state that the Plan sets out a process to be followed in, "creating site selection
standards, identifying a vendor and ultimately approving a site." (Residents Br. at 24.) They
27
then argue that this process was not followed and that LandComp only demonstrated at hearing
that its Application was consistent with the Host Agreement; it did not demonstrate it to be
consistent with the Plan. (Residents Br. at 24.) Residents also disagree with the testimony of
Mr.Phil Kowolski who testified to the consistency of the Siting Application and Plan.
(Residents Br. at 24.) Residents’ further contend that the Section 6.2 of the Plan requires
public involvement in the siting process, and that opportunity to do so was not afforded
Residents.
LandComp and LaSalle argue that the proposed facility is consistent with the Plan and
the Host Agreement. (LandComp Br. at 33 and LaSalle Br. at 19 and 21.) LaSalle also
argues that consistency with the Host Agreement was one of the elements a facility must meet
under the Plan. (County Br. at 21-22.) LaSalle argues that the public was involved in the
siting process and that LandComp cannot be held responsible for the extent to which the public
does or does not participate. (County Br. at 19.) Finally, LaSalle argues that Section
39.2(a)(8) only requires that the proposed facility be consistent with the Plan, not that the
siting procedures be consistent with the Plan. (County Br. at 19.)
LaSalle is correct that Section 39.2(a)(8) requires only that the facility be consistent
with the Plan. Whether the hearing procedures were consistent with those in the Plan is more
properly addressed under the issue of fundamental fairness. We have already done so. The
following discussion is therefore limited to whether the proposed facility is consistent with the
Plan.
The Plan was adopted by the County Board in 1991 and amended in February of 1993
(Vol. II Sec. 8 p.8-1.) The Plan calls for a privately held landfill to be operated in the County
contingent upon meeting the conditions set out in the Host Agreement (Plan at Section 5.1.6).
According to the Plan, the facility should provide the LaSalle with disposal capacity for a 20
year period. Among other things, the Plan calls for an increase in municipal waste reduction
and municipal and industrial recycling. The Plan also calls for the continued landfilling of
waste (which is not reduced or recycled) at a landfill which meets or exceeds the Board's
regulations and proposed Subtitle D RCRA regulations. The Plan also prohibits the new
facility from accepting hazardous waste or more than 200,000 tons per year of municipal waste
or non-hazardous special waste. Additionally, the facility must meet the siting criteria.
Mr. Philip Kowalski from Patrick Engineering testified that the Plan had two major
components: a waste diversion component and a waste disposal component. (CH at 1920.)
He testified that LandComp committed through the Host Agreement to process recyclables and
landscape waste to the extent that other private sector businesses were not providing those
services, thereby helping to reach the diversion goals set by the Plan. (CH at 1921.) He also
testified that the landfill will provide LaSalle with capacity for non-hazardous special waste
and municipal waste generated within LaSalle for 20 years (CH at 1925), and that the facility
will not accept more than 200,000 tons of waste per year (CH at 1925). Mr. Kowalski
concluded that the proposed landfill would meet both the diversion and disposal components of
the Plan as amended.
28
Mr. Kowalski also testified that the proposed landfill was consistent with the Plan in
other ways. He testified that the proposed landfill was not going to accept hazardous waste
(CH at 1923-1924, 1932); that LandComp provided an indemnification agreement to LaSalle
which was set out in the Application and was a part of the Host Agreement (CH at 1928); that
the proposed landfill will not accept special waste streams from outside LaSalle without first
obtaining approval from LaSalle (CH 1928-1929); that the tipping fees of the landfill are
comparable to landfills in the service area, and that out-of-county users are charged the same
of the in county users (CH at 1925); that the Host Agreement signed by LaSalle and
LandComp sets up an oversight commission to review the landfill’s operation (CH at 1930-
31); and that LandComp and LaSalle have negotiated a host fee which will be paid to LaSalle
County (CH at 1930-31).
In addition to Mr. Kowalski’s testimony, Mr. Devon Moose from Patrick Engineering
also testified as to the consistency between the proposal and the Plan. Mr. Moose’s testimony
addressed the technical questions in the Plan such as for example whether the proposed facility
would meet applicable regulatory Board standards and whether the proposed facility would
meet each of the nine siting criteria set out in the Act. (See CH 501
et seq.
, 1083
et seq.
,
1244
et seq.
, and 1585
et seq.)
We have reviewed the record and do not find evidence to support Residents’
allegations. Under the manifest weight of the evidence standard, the Board can only reverse
the County Board’s finding that the proposed facility is consistent with the requirements of the
Plan if an opposite result is clearly evident, plain, or indisputable. Therefore, we uphold the
County Board's decision on this criterion.
CONCLUSION
By statute, siting approval of pollution control facilities is granted by local
governments; judicial authorities only review those siting decisions. We have twice reviewed
the siting approvals granted by the LaSalle County Board concerning the municipal solid waste
landfill proposed by LandComp. In the first appeal, we found that the siting proceeding below
was fundamentally unfair for two of the reasons raised by petitioners at that time. The matter
was remanded to the LaSalle County Board with an order instructing it how to cure the errors
which caused its first siting approval to be the result of a fundamentally unfair proceeding.
Accordingly, the Board did not reach the siting criteria challenges made by petitioners at that
time.
On remand, the LaSalle County Board conducted another siting proceeding to comply
with the Board’s order, and at its conclusion the County Board again granted siting approval of
the facility proposed by LandComp. Petitioners again challenged that siting approval on
grounds that the proceeding was fundamentally unfair and that three of the siting criteria found
at Section 39.2(a) of the Act were not satisfied. In two of their three challenges that the siting
proceeding was fundamentally unfair, petitioners restate their arguments made in the first
appeal. We again have considered the record, and we reaffirm our decisions in PCB 96-243,
as they pertain to those two challenges: (1) the relationship between LandComp and LaSalle
29
County, and (2) that the County Board’s Hearing Officer was biased. Petitioner’s third
challenge is that some of the County Board members acted in a manner which renders the
second siting proceeding fundamentally unfair. We have carefully reviewed the record on this
point, and find that the County Board members exercised their decisionmaking authority in
accordance with the Act and judicial precedent.
As for petitioners’ challenges concerning the siting criteria, we are bound by the
standard of review imposed upon us by the courts. (E & E Hauling, Inc. v. Pollution Control
Board, 116 Ill.App.73d 586, 594, 451 N.E.2d 555 (2d Dist. 1983),
aff’d in part
, 107 Ill. 2d
33, 481 N.E.2d 664 (1985).) We must apply the manifest weight standard when reviewing
siting criteria challenges, which means that we may not substitute our own decision for the
County Board’s. The manifest weight standard requires that we affirm the County Board’s
decision unless an opposite result is clearly evident, plain, and indisputable. Therefore, we
must affirm the County Board’s decision unless review on the record before it clearly shows
that the County Board erred. Even if the evidence shows that another decision could have
been reached by the County Board, we may not substitute that decision for the County
Board’s. The record in this case contains no evidence of clear error by the County Board
concerning the three siting criteria challenges. Therefore, we must affirm the LaSalle County
Board’s decision.
This opinion constitutes the Board's findings of fact and conclusions of law in this
matter.
ORDER
For the foregoing reasons the Board affirms the January 17, 1997, decision of LaSalle
County Board granted siting approval to LandComp Corporation.
IT IS SO ORDERED.
Board Member J. Theodore Meyer concurred.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1997)) provides for
the appeal of final Board orders within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill.Adm.Code
101.246 "Motions for Reconsideration.")
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 19th day of June, 1997, by a vote of 6-0.
30
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
