ILLINOIS POLLUTION CONTROL BOARD
July
1,
1993
MATERIAL RECOVERY CORPORATION,
Petitioner,
v.
)
PCB 93—11
)
(Landfill Siting Review)
VILLAGE OF
LAKE
IN THE HILLS,
Respondent..
JAMES
L. WRIGHT, OF NILITELLO,
ZANCK
& COEN,
P.C., APPEARED ON
BEHALF OF THE PETITIONER~
KATHY
P. FOX
AND
JAMES
R. MORRIN, OF WILDMAN, HARROLD, ALLEN
&
DIXON, APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by G.
T.
Girard):
This matter is before the Board on an appeal by Material
Recovery Corporation
(MRC)
of the December
15,
1992, denial by
the Village of Lake in the Hills
(Village)
of an application for
site location suitability for a new regional pollution control
facility.
The petition was filed by NRC, the applicant for
siting approval,
on January 15,
1993.
Hearings were held on May
4 and 5,
1993.
Several members of the public appeared and
offered statements on the record.
The Board’s responsibility in this matter arises from
Section 40.1 of the Environmental Protection Act
(Act).
(415
ILCS 5/40.1
(1992).)
The Board
is charged, by the Act, with a
broad range of adjudicatory duties.
Among these is adjudication
of contested decisions made pursuant to the local siting approval
provision for new regional pollution control facilities,
set
forth in Section 39.2 of the Act.
More generally,
the Board’s
functions are based on the series of checks and balances integral
to Illinois’ environmental system:
the Board has responsibility
for rulemaking and principal adjudicatory functions, while the
Board’s sister agency, the Illinois Environmental Protection
Agency
(Agency)
is responsible for carrying out the principal
administrative duties,
inspections, and permitting.
The Agency
does not have
a statutorily-prescribed role in the local siting
approval process under Sections 39.2 and 40.1,
but would make
decisions on permit applications submitted if local siting
approval
is granted and upheld.
Briefs were filed by NRC on Nay 21,
1993,
and June 11,
1993.
The Village filed its brief on June
4,
1993.
An ainicus curiae
brief was filed on behalf of the Village of Lakewood and Landfill
Emergency Action Committee II
on June 4,
1993.
2
Also on June 4,
1993,
the Village filed two motions, one
a
motion to dismiss and one a motion to supplement the record.
On
June 11,
1993, the Board received NRC’s response to the motions.
Also on June 11,
1993,
NRC
filed a motion to strike the amicus
curiae brief.
PRELIMINARY ISSUES
Before proceeding to the merits of the case, the Board will
address the outstanding motions.
In the motion to dismiss, the
Village argues that
NRC
has “failed to reimburse the Village for
actual costs incurred by the Village”.
(Mot. at
1.)
The Village
asserts that such failure is in violation of the annexation
agreement with the Village and therefore
NRC
has “waved its right
to proceed with this appeal”.
(Not.
at 1.)
The Village also
argues that the appeal should be dismissed because NRC has not
complied with Section 39.2(n)
of the Act in that
NRC
has not paid
the costs for preparation of the record on appeal.
NRC
responds
to the Village by offering a copy of a letter which included
payment for preparation of the record on appeal.
The letter is
dated June
7,
1993,
and was sent to the Village.
Further,
NRC
asserts that the annexation agreement provided for reimbursement
only if siting approval was granted.
The Board finds that the costs for preparation of the record
have been paid.
Therefore, the Board denies the motion to
dismiss as moot.
The Board also denies the motion to supplement the record.
The Village seeks to include correspondence between
NRC’s
attorney and the Village’s attorney:
one letter dated December
18,
1992,
and one dated January 14,
1992.
Neither letter is an
appropriate inclusion in the Village record as both were sent
after the decision of the Village had been made and after the
decision deadline had passed.
Thus, the Village had made its
decision and these letters were not a part of the record
considered by the Village in making the decision.
(Section 40.1
of the Act.)
Further, the Board denies the motion to strike the amicus
curiae brief.
The motion to strike submits that the amicus brief
is single-spaced and 33 pages
long.
The motion argues that this
is contrary to the Board’s procedural rules.
(See 35 Ill.
Adin.
Code 101.103(d).)
The Board agrees that the amicus brief does
not conform with the Board’s regulations.
However, the Board
determines that the filing of a single spaced brief,
in this
proceeding, will not prejudice the parties.
BACKGROUND
3
On June
5,
1992, NRC filed with the Village an Application
for Regional Pollution Control Facility Siting Approval
(Application).
(C.
31-520.)’
The petitioner tendered a filing
fee of $150,000.00 with its Application pursuant to the Village’s
siting ordinance.
(C.
19-30.)
The proposed site consists of 113 acres located on the east
side of Illinois Route 47
in the Village of Lake in the Hills,
in
McHenry County,
Illinois.
(See Supplement No.
9 to Application,
C.
393—459.)
The proposed facility consists of a material
recovery facility and
a “residual solid waste balefill”.
(See
Supplement No.
5 to Application, p.
30;
C.
33.)
A public hearing on the Application commenced on September
14,
1992, and adjourned on October 26,
1992.
The Villages of
Lakewood and Huntley and a citizens group objected to the
proposed facility and participated in the local hearing.
On December 15,
19922, the Village Siting Committee made a
recommendation to the Village Board,
entitled “Decision and
Recommendation”.
(C.
3463-3468.)
In this document, the Siting
Committee stated that the petitioner had satisfied all of the
statutory criteria of Section 39.2(a)
of the Act, except
criterion no.
2.
On the same date, the Village Board adopted the
“Decision and Recommendation” of the Committee
(C.
3469—3470),
thereby denying the petitioner’s siting request.
STATUTORY FRAMEWORK
At the local
level,
the siting process
is governed by
Section 39.2 of the Act.
Section 39.2(a) provides that local
authorities are to consider as many as nine criteria when
reviewing an application for siting approval.
These statutory
criteria are the only issues which can be considered when ruling
on an application for siting approval.
Only if the local body
finds that all applicable criteria have been met by the applicant
‘The record from the local hearing will be cited as
“C.
_“;
the transcript from the local hearing will be cited as
“V. Tr.
at
“;
and exhibits from the local hearing will be cited as “App.
Exh.
“
or “Obj.
Exh.
“.
The transcript of the Pollution
Control Board hearing will be cited as “PCB Tr.
at
“;
exhibits
from the Board hearing will be cited as “Pet.
Exh.
“
or “Res.
Exh.
“.
The petitioner’s brief will be cited as “P.
Br.
at
“;
the reply brief will be cited as
“P.
Rep.
at
_“;
the
Village’s brief will be cited as
“V. Br. at
“;
and the amicus
brief will be cited as “Am. Br.
at
“.
20n November 24,
1992,
NRC stipulated to a 14 day extension
of the decision deadline until December
17,
1992.
(C.
1577.)
4
can siting approval be granted.
Section 39.2(a) provides in part
that local siting approval shall be granted if:
2.
the facility is so designed, located and proposed
to be operated that the public health,
safety and
welfare will be protected.
When reviewing a local decision on the criteria, this Board
must determine whether the local decision is against the manifest
weight of the evidence.
(McLean County Disposal
v.
County of
McLean
(4th Dist.
1991), 207 Ill. App.
3d 352,
566 N.E.2d 26
McLean County.)
Additionally,
the Board must review the areas of
jurisdiction and fundamental fairness.
Section 40.1 of the Act
requires the Board to review the procedures used at the local
level to determine whether those procedures were fundamentally
fair.
(E
& E Hauling,
Inc.
v.
Pollution Control Board
(2d Dist.
1983),
116 Ill.
App.
3d
586, 451 N.E.2d 555,
562, aff’d in part
(1985)
107 Ill.
2d 33,
481 N.E.2d 664.)
ISSUES
The three issues raised by the parties
in this proceeding are:
I.
Whether
NRC
has waived its right to claim that the filing of
a single joint consulting report was fundamentally unfair,
because petitioner had ample opportunity to raise this issue
in the proceedings below.
II.
Whether
NRC
was denied fundamental fairness in the
proceeding by the Village under section 40.1(a)
of the Act.
III. Whether the Village’s decision denying petitioner’s
application on the basis of failure to meet criterion no.
2
was against the manifest weight of the evidence.
Waiver Of Right To Claim Fundamental Unfairness.
Before proceeding to the substance of this issue
a brief
recitation of the pertinent facts is necessary.
On November
16,
1992,
a report
(the “Wight report”) was submitted into the
Village record.
(C.
3105-3283.)
The report indicated that it
had been authored by the five consultants retained by the Village
to review the application and the record in the siting
proceeding.
(C.
3105-3107.)
The Wight report was prepared by
Mr.
Scott Sanderson,
an employee of Mr. George Wight at Wight
Consulting Engineers, and Mr. Wight, who is also the Village
engineer.
The report was prepared in
a lengthy drafting session
between Friday, November
13,
1992,
and Sunday, November
15,
1993,
5
at Wight’s office in Barrington.
(P.
Br.
at 13.)
None of the
several experts retained by the Village were p~iysicallypresent
during the drafting of the report.
(PCB Tr. at 263.)
Mr. James
Morrin,
counsel for the Village, was present during the drafting.
(P.
Br.
at 13.)
The Village argues that NRC waived its right to claim
unfairness of the proceeding.
The Village relies on three
arguments in support of its position.
First, the Village asserts
that on November 16,
1992, the day the Wight report was filed,
“it was abundantly clear that individual consultant’s reports
were not filed;
it would be inconceivable that the Wight Report,
jointly authored by five consultants, could have been written
without some form of written submittals by each consultant”.
(V.
Br. at 23.)
The Village next asserts that
NRC
could have raised the
issue
in a motion to the Village to reconsider its decision.
Further,
the Village notes that a letter asking for
reconsideration was sent on December 17,
1992, two days after the
Village rendered its decision.
(V.
Br.
at 24.)
The Village
states that on January 14,
1993,
NRC
withdrew its request for
reconsideration.
(V.
Br.
at 24.)
Lastly,
the Village asserts that
NRC
clearly waived its
right to claim unfairness arising out of misstatements in the
Wight report.
The Village points out that NRC filed comments on
the Wight Report and did not raise the issue of misstatements at
that time.
(V.
Br.
at
26..)
MRC
responds to the Village’s assertion that it waived its
right to allege unfairness
of the proceeding by first pointing
out that the Village has no authority to reconsider
its decision.
NRC
cites to Weingart v. Department of Labor,
(1988)
122 Ill.2d
1, 521 N.E.2d 913 and Reichhold Chemicals,
Inc.
v.
PCB,
(3rd
Dist.
1990)
204
Ill. App.3d 674,
561 N.E.2d 1343.
NRC
maintains
that those cases support the proposition that an administrative
agency,
absent specific statutory authority, may not reconsider
its decision once
it is announced.
(P. Rep.
at 15.)
NRC then
asserts that Section 39 of the Act does not provide a mechanism
for reconsideration.
(P. Rep.
at 15.)
NRC
maintains that the first knowledge it had of individual
reports being prepared and submitted to Wight Engineers was
December 17,
1992.
(P. Rep.
at 15—16.)
This date was after the
decision deadline had passed and after the Village had rendered
its decision.
(P. Rep.
at 15—16.)
The Board notes that the Village has correctly cited the
applicable
law
regarding waiver of an objection to unfairness in
a landfill siting case.
A party can,
by inaction in the
proceeding before the local siting board, waive its right to
6
raise the issue on appeal to the Board.
(Fairview Area Citizens
Task Force v.
IPCB,
(3rd Dist.
1990)
144 Iii.
Dec.
659,
555
N.E.2d 1178.)
The Board further notes that
NRC
has correctly
cited the applicable law regarding motions for reconsideration or
rehearing,
for administrative agencies.
In this case,
the Board
finds that
NRC
did not waive its right to challenge the
unfairness of the proceeding below with regards to the individual
reports.
The Board is persuaded that the first date on which
NRC
had actual knowledge of individual reports was December 17,
1992.
Therefore,
the issue could not have been raised prior to the
issuance of the decision by the Village.
The Board notes that neither the Village ordinance nor
Section 39.2 of the Act contain any provisions for
reconsideration by the local siting authority.
(C.
1-
30.)
In
addition, both the ordinance and Section 39.2 set forth specific
decision deadlines.
Thus,
the Village has no specific statutory
authority allowing for reconsideration.
The Board finds that the
instant matter is analogous to Reichhold in that the courts have
held that in landfill siting the local decision maker is acting
as an adjudicatory decision maker.
(E
& E Hauling, Inc.
v. IPCB,
(2d Dist.
1983),
116 Ill. App.
3d 586,
451 N.E.2d 555,
566, aff’d
in cart
(1985)
107 Ill.
2d 33,
481 N.E.2d 664.)
Therefore, the
local decision maker,
in a landfill siting procedure would be
similar to an administrative agency acting as an adjudicatory
decision maker.
Therefore,
the Board finds that the Village
lacks the authority to reconsider its decision in this matter and
NRC could not have raised the issue in a motion to reconsider.
The Board accordingly finds the waiver argument without merit
with regards to
NRC’s
challenge of unfairness on the reports.
With regards to
NRC’s
arguments alleging “misstatements”
in
the Wight Report, the Board notes that
NRC
addressed each of the
alleged “misstatements”
of the Wight report in its comment on the
report.
(C.
3429-3430.)
NRC did not argue unfairness
in its
post-hearing comments; rather, NRC pointed out that the Wight
report contained “misstatements”.
The Board finds that NRC has
waived a claim of unfairness with regards to the alleged
“misstatements”
of the Wight report as NRC had the opportunity to
raise the issue below.
Fundamental Fairness
Section 40.1 of the Act requires the Board to review the
proceedings before the local siting authority to assure
fundamental fairness.
In E
&
E Hauling,
Inc.
v.
IPCB
(2d Dist.
1983)
,
116 Ill.
App.
3d 586,
594,
451 N.E.2d 555,
564,
aff’d in
part
(1985),
107 Ill.
2d 33,
481 N.E.2d
664, 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
7
standards of adjudicative due process must be applied.
(See also
Industrial Fuels,
227
Ill. App.
3d 533,
592 N.E.2d 148; Tate,
188
Ill. App.
3d 994,
544 N.E.2d 1176.)
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 Nanaaement of Illinois Inc.
v.
IPCB
(2d Dist.
1989),
175 Ill. App.
3d 1023,
530 N.E.2d 682.)
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.
(Hedi~erv.
D
& L Landfill,
Inc.
(December
20,
1990),
PCB 90—163.)
NRC
argues that the Village hearing was fundamentally unfair
to NRC because:
(1) the reports of the Village’s experts were not
submitted into evidence,
and
(ii) the Village’s
decision on criterion no.
2 was based largely on
perceived deficiencies in the site investigation,
despite the fact that the investigation was conducted
in cooperation with the Village’s own expert.
(P.
Br. at 15—16.)
In support of its first assertion,
NRC
states that the Wight
report was prepared by Mr. Scott Sanderson, an employee of Mr.
George Wight at Wight Consulting Engineers,
and Mr. Wight, who is
also the Village engineer.
The report was prepared in a lengthy
drafting session between Friday, November 13,
1992,
and Sunday,
November 15,
1993,
at Wight’s office in Barrington.
(P.
Br.
at
13.)
None of the several experts retained by the Village were
physically present during the drafting of the report.
(PCB Tr.
at 263.)
Mr.
James Morrin, counsel for the Village, was present
during the drafting.
(P.
Br.
at
13.)
The report contains
several sections; however,
the only sections at issue here are
section III and the conditions stated in section IV regarding the
statements in section III.
The final draft of Section III of
the report was not sent to Dr. Nolan Aughenbaugh or Dr. John
Rockaway.
(P.
Rep. at 11; PCB Tr. at 264,
283.)
Drs.
Aughenbaugh and Rockaway are experts retained by the Village who
prepared individual reports.
NRC
maintains that the reports are
favorable to its position.
(P. Rep. at 6—7.)
The abstract of the Wight report states:
The following
is our report for the Regional Pollution
Control Facility, Route 47, Lake in the Hills,
IL.
Our report encompasses the application filed by the
petitioner, Material Recovery Corporation, the public
8
hearings commencing 9/14/92 and culminating on
10/26/92, the findings of the consultants retained on
behalf of the Village of Lake in the Hills,
and the
various documents that were entered into the record
during the public hearings.
This report details the information presented in
requirements for siting a Regional Pollution Control
Facility, the findings of the Village Consultants, and
the additional conditions that the Consultants deem
necessary for consideration of the siting committee.
This report is the culmination of a long and arduous
process that commenced on 6/4/92 and continued through
the date of this report and public comment period of
11/13/92
and this report of 11/16/92.
(C.
310.)
NRC
maintains that the report “neither encompasses the
findings of the Village experts, nor accurately summarizes their
conclusions and opinions”.
(P.
Br.
at 19.)
NRC points to the
conclusions of Dr. Aughenbaugh and Dr. Rockaway which appear to
support the siting of landfill as evidence that the Wight report
was “unfair”.
(P.
Br.
at 20—21 and 22; Pet. Exh.
6 at
3 and Pet.
Exh.
12 at 5—6.)
In summary
NRC
maintains that:
In this case,
it was fundamentally unfair to the
Petitioner for the Village to hire independent experts
to assist in the decision—making process, and then to
withhold the experts’ reports and positive conclusions
from the Trustees.
(P.
Br.
at 28.)
In support of its second assertion, NRC states that meetings
with Village engineer George Wight,
Scott Sanderson,
and Andrews
Engineering personnel, the firm retained by NRC, took place
in
April
of 1991, more than one year prior to the filing of the
application.
(P.
Br.
at 3.)
NRC states that Mr. Wight stated
“he would help coordinate the site investigation and determine
whether there was any additional information they would need to
be satisfied”.
(P.
Br.
at 4; PCB Tr.
at 139-140.)
NRC also asserts that Dr. Nolan Aughenbaugh’s role,
as
explained to NRC, was “to review documentation and data submitted
9
to him by NRC engineers3 make comments and observations to the
NRC engineers regarding testing procedures ~nd site
investigation; and,
in consultation with Wight Consulting
Engineers,
suggest to the
NRC
engineers any additional
information which should be furnished before the Application was
filed”.
(P.
Br.
at 5; PCB Tr. at 252.)
NRC
maintains that Dr. Aughenbaugh stated to the NRC
engineers that “he would take a critical view of the site and
proposed facility; that he would play the role of devil’s
advocate for the Village, because he was familiar with the area
and knew what the problems were; and that he would help Wight
Consulting Engineers determine the suitability of the site”.
(P.
Br.
at
6; PCB Tr. at
141.)
NRC explains that the site investigation began
in September
of 1991.
Data from the site investigation was forwarded by
NRC
to Dr. Aughenbaugh and Wight Engineers.
(P.
Br. at
6.)
The
extent of the tests and borings were a subject of compromise
between Andrews Engineering, Mr. Wight and Dr. Aughenbaugh.
(P.
Br. at 6.)
In addition, Dr. Aughenbaugh made several specific
requests regarding borings and the design of the facility; some
of these were implemented, while others were discussed and a
compromise was reached.
(P.
Br.
at 7—8.)
NRC further asserts
that the Village attorney told the president of NRC, Mr. James
Veugeler, that the “Village Engineers were satisfied that there
were no additional tests necessary to determine site
suitability”.
(P.
Br. at 18; PCB Tr.
at 58—59.)
In summary NRC argues:
It is fundamentally unfair for a local hearing body to
retain its own engineer and an independent expert to
assist an applicant in defining the parameters of
a
site investigation and to suggest elements of the
facility design,
and then deny a siting request because
the applicant failed to utilize “conventional means of
studying subsurface conditions”; failed to perform
“routine test”; and failed to obtain and evaluate
“basic information.
.
.
long before the application was
filed”.
(P.
Br.
at 19.)
The Village maintains that
NRC
has failed to establish any
basis for a finding that the local hearing procedures denied NRC
fundamental fairness.
(V.
Br.
at 12.)
The Village states that:
~
The term
“NRC
engineers” refers to Doug Andrews and Dan
Freezor of Andrews Environmental Engineering and Dr. Rauf Piskin
of Hydropoll,
Inc.
10
What is being objected to,
however,
is not that the
petitioner was unfairly prevented from adducing
evidence, but rather that the respondent Village failed
to put certain reports. into evidence,
the inescapable
implication being that a Section 39.2 siting authority
is under some duty to adduce evidence to assist an
applicant in meeting its burden of proof on the nine
criteria established under the Environmental Protection
Act.
(V.
Br. at 13.)
The Village argues that Dr. Aughenbaugh was only provided a
“fraction of the materials which were contained in the final
application”
(V.
Br.
at 13), and that based on those “limited
materials”,
Dr. Aughenbaugh and Mr. Wight stated that the
balefill siting “was worth pursuing”.
(V.
Br.
at 14.)
The
Village further maintains that
NRC
seems to argue that Dr.
Aughenbaugh’s participation and pre—hearing comments “precluded
the Siting Committee from finding ~y
deficiencies in the record
to Section 39.2 criterion no.
2”.
(V.
Br.
at 14.)
The Village maintains that case law holds that:
the decision-making authority rests solely with the
local government, and a local government’s consultant
report,
even if accurately characterized as urging
approval
is not binding on the decision-maker.
Hediger
v.
D
& L Landfill,
Inc.,
PCB 90—163
(February 25,
1990)
p.
14 citing McLean County Disposal, Inc.
v. The County
of McLean,
PCB 89-108,
105 PCB 203,
207
(November
15,1989).
(V.
Br.
at 14—15.)
Thus,
the Village argues even if the Village attorney had
indicated to
NRC
that the Village engineers were satisfied, which
the Village attorney does not recall doing,
it would not matter.
Neither the Village engineers,
nor the attorney, nor Dr.
Aughenbaugh determine whether siting is appropriate.
(V.
Br.
at
15.)
The Village states that George Wight decided not to submit
individual reports.
(V.
Br. at 18.)
Mr. Wight stated that the
report:
is
a compilation of the
sic)
what,
ten or fifteen
or•
twenty people who had some
—-
something to do
,
and the
specific experts which are there.
It
is a compilation
of their positions and my interpretation of those,
obviously,
as we put them together into one report.
11
(PCB Tr.
at 443.)
The Village submits that the Aughenbaugh and Rockaway reports
total 45 pages and contain several overlapping conclusions,
“many
unfavorable to petitioner, and several of them highly critical of
petitioner’s proofs”.
(V.
Br. at 20.)
Mr. Wight testified that
he believes that the report, when read with the list of
recommendations,
fairly reflects the consultants’ opinions.
(PCB
Tr.
at 232, 451—452.)
Finally the Village states:
The record in these proceedings is utterly devoid of
any evidence that George Wight was pre-disposed to any
decision.
Indeed, Wight testified that he viewed the
Wight Report as favorable to the balefill.
(PCB Tr.
at
232,
451-452.)
Likewise, there is no evidence of undue
influence or ex—parte communications with interested
parties.
Petitioner’s unhappiness with Wight’s
reasonable editorial decisions simply do not fall
within the ambit of Hediger,
supra,
E
& E Hauling,
Inc.
v. Pollution Control Board,
(2nd Diet.
1983)
451 N.E.2d
55, Tate v. Macon County Board,
PCB 88—126
(December
15,
1988),
nor any other case
in which~thisBoard has
addressed the issue of fundamental fairness.
(V.
Br.
at 21.)
The amicus filing states that “the whole premise of the
Petitioners argument
is premised on the theory that there was
some requirement that the Village Board be provided with the
reports of the individual experts.”
(Am. Br. at
4.)
The arnicus
asserts that the failure to submit the reports into evidence
could result
in reversible error only where there was an
obligation to do so or where failure to release the reports
resulted in a prejudicial determination.
(citing Waste
Management
v.
PCB,
(2nd Diet.
1988)
175 Ill.App.3d 1023,
125
Ill.Dec.
524.)
(Am.
Br.
at 4.)
The amicus also cites to McLean
County and the proposition that a municipality is not bound by
the opinion or reports of its experts or consultants.
(Am.
Br.
at4.)
The amicus also argues that the Wight report included the
positive aspects of the Dr. Aughenbaugh’s and Dr. Rockaway’s
individual reports but not the negative aspects.
(Am.
Br.
at
5,
7.)
Thus,
the amicus seems to argue that by not including the
individual reports, the Wight report was more favorable to the
applicant.
(Am.
Br.
at 8.)
The amicus further argues that
NRC
placed reliance on what
NRC perceived to be the “acquiesce
sic
of certain individuals
as
if those individuals had the ability or authority to control
12
the decision of the Village Board”.
(Am. Br.
at 11.)
However,
according to the amicus,
the “facts contained tn the record do
not indicate the Village,
its personnel or its retained experts
defined the parameter of the testing or actually determined the
type of testing to be employed”.
(Am. Br.
at 11.)
The key issue for the Board to examine is whether the
actions of the Village experts prior to filing the application
and in submitting a single final report resulted in
a proceeding
which was fundamentally unfair.
The Board notes that the issue
is not whether the individual reports could have been submitted;
rather,
it is whether the individual reports were required to be
submitted.
For the reasons delineated below, the Board finds
that the procedures followed by the Village were not
fundamentally unfair.
First,
the Board notes that the activities which are claimed
to be unfair arise from interaction with Village employees but
not members of the Board of Trustees; and
in fact Mr. James
Veugeler, president of NRC, testified that it was never
represented to him that the trustees had made “a decision,
an
approval,
a conclusion with respect to the balefill”.
(PCB Tr.
at 77.)
NRC
has provided
rio
evidence that the consultants ever
represented that they spoke for the Board of Trustees.
Further,
NRC has provided no authority for the proposition that the
Trustees were bound by the action of their consultants or that
the consultants’ reports should have been filed.
Alternatively,
the Village and the arnicus properly cite to McLean County.
In
that case the court clearly stated that the decision—maker is not
bound by an advisor’s recommendation.
(McLean County at 505.)
The Board points out that a recent decision in the Appellate
Court of Illinois, Third District, held that the actions of the
Will County state’s attorney led to
a fundamentally unfair
proceeding before the Village of Roineoville.
The state’s
attorney was not acting on behalf of the decision maker,
the
Village of Rorneoville, but on behalf of the citizens of the
county.
(Land and Lakes Company v. Pollution Control Board,
(3rd
Dist. May 27,
1993)
No. 3—92—0496,
slip op.)
In that case,
the
state’s attorney “failed to disclose to the Village’s hearing
officer that Will County was taking legal action to prevent the
reopening of “a landfill in the area that Land and Lakes sought
to locate its facility.
(Land and Lakes slip op.
at 2.)
The
state’s attorney then used the fact that the landfill could
reopen to challenge Land and Lakes on Section 39.2(a) (1), the
needs criteria.
(Land and Lakes slip op.
at 3.)
A motion for
rehearing is currently before the Third District on Land and
Lakes.
The facts of Land and Lakes differ significantly from
this matter in that thecompilation of the individual reports did
not lead to misinformation being given to the decision maker.
13
The Board also notes that the applicant was given an
opportunity to respond to the compiled report ~nd did so.
The
record clearly shows that after hearing several aspects of the
application had been called into question.
NRC’s
response could
have addressed the additional concerns expressed by opponents and
the Wight report.
Finally,
Dr. Aughenbaugh testified that NRC’s exhibits 6-8
are one report and should be read together.
(PCB Tr. at 536.)
Dr. Aughenbaugh also indicated that he had written his report and
told Mr.
Wight that the report could be used as
a chapter or
appendix or it could be taken apart and reused in any way.
(PCB
Tr. at 551.)
Mr. Wight testified that he compiled the report and
resolved any inconsistencies while staying
in contact, and
sharing drafts, with the various experts via phone and fax.
(PCB
Tr.
at 436-441.)
Therefore,
after an examination of the
individual reports, the Board believes that the Wight Report did
include most of the technical provisions found in the individual
reports.
Clearly,
any material which may have been left out did
not prejudice the applicant.
It is true that the report does not
include recommendations regarding the approval of the site.
However, the Wight report does appear to be a balanced comment on
the technical data and in fact,
some findings which were against
the siting were also omitted.
(Am.
Br. at 5-8; Pet.
Exh.
7 at
4;
Pet.
Exh.
12 at 12.)
Therefore, the Board finds that the
consultants’ individual reports were not requixed to be filed in
this case as a necessary condition of fundamental fairness.
Manifest Weight
As
noted above, when reviewing a decision on the criteria,
the Board must determine whether the local decision is against
the manifest weight of the evidence.
(McLean CountY Disposal v.
County of McLean
(4th Dist.
1991),
207 Ill.
App.
3d 352,
566
N.E.2d 26.)
A decision is against the manifest weight of the
evidence if the opposite result
is clearly evident, plain,
or
indisputable from a review of the evidence.
(Harris v. Day,
(1983)
115 Ill.App.3d 762,
71
Ill. Dec.
547, 451 N.E.2d 263.)
The province of the hearing body is to weigh the evidence,
resolve conflicts
in testimony,
and assess the credibility of the
witnesses.
A reviewing court is not in a position to reweigh the
evidence, but can merely determine if the decision is against the
manifest weight of the evidence.
(Tate v. Pollution Control
Board,
(1989)
188 Ill. App.
3d 994,
136 Ill.
Dec.
401,
544 N.E.2d
1176 quoted in Fairview Area Citizens Task Force v.
IPCB,
(3rd
Dist.
1990)
144 Ill.
Dec.
659, 555 N.E.2d 1178.)
The Village’s decision states that the recommendations
in
the Wight report “remind the Committee of the many questions
which were left unaddressed by the Applicant in its application
and
in the subsequent hearing testimony”.
(C.
3465.)
The
decision further states:
14
But neither the Applicant’s failure to accurately
determine water levels in ground water wells nor the
unanswered questions about adequate clay materials
being present at the site represent the most
significant failing of the Applicant to demonstrate
protection of the public health and welfare.
The most
significant deficiencies mostly relate to the fact that
the site overlays an aquifer which may be presently
used as a drinking water aquifer by the adjacent town
of Huntley,
and which
is under consideration by this
Village to meet its own drinking water needs
in the
near future.
(C.
3465.)
The decision then delineates five specific shortcomings relating
to groundwater.
Those shortcomings are:
1)
the nature of the several soil types which overlay the
aquifer;
2)
the groundwater flow in the surficial soils;
3)
the actual
in situ
soil permeability of site soils;
4)
current, periodic water levels
in the site wells
(to
assist
in
a determination of groundwater movement);
and
5)
the presence of frequency of vertical fracturing within
the soil formations.
(C.
3465—3466.)
NRC argues that the decision of the Village on criterion no.
2 under Section 39.2 of the Act
is against the manifest weight of
the evidence.
With regard to point
1 from above,
NRC
maintains
that over
32 borings have been drilled on the site and the
classification and engineering properties of the soils were
determined by field tests for unconfined compressive strength,
and laboratory analysis of soil permeability, grain size,
Atterberg limits, cation—exchange capacity, and moisture content.
(P.
Br. at
33; C.
118—240.)
On point
2, NRC states:
The Wight Report agreed with Dr. Piskin’s
characterization of the “small size and extent” of the
surficial sands.
For this reason, and because “a
variety of pollutional sources such as agricultural
fertilizers and natural surface contaminants” could
render the surficial sands unfit as
a potable water
source,
the
Wight
Report concluded that the surficial
sands would generally not be considered an aquifer.
In
addition,
Dr. Rockaway,
in his individual report,
15
disputes the contention of one of the objectors’
experts that the surficial sands are in “partial
communication” with the creek bordering the site.
(P.
Br. at 35.)
On points
3 and
4, NRC argues that testing was done and the
testing was “sufficient”.
(P.
Br.
at 35-36.)
Finally, on point
5,
NRC
argues that the proposed design, which calls for
construction of a liner,
“diminishes)
the significance of soil
fractures”.
(P.
Br.
at 36.)
The Village argues:
Both by questioning their own experts and by cross—
examining petitioner’s experts, the Objectors raised
issues of availability of sufficient till at the site
to construct the liner; the sufficiency of petitioner’s
hydrogeological characterization of the aquifer
underlying the site; the degree of fracturing of site
soils; questions regarding the direction of the
groundwater flow at the site;
a possible connection
between the Huntley drinking water well and the aquifer
underlying the site;
the failure of the applicant to
perform slug and bail test at the site, opting instead
for a less accurate laboratory permeability model; the
lack of sufficient piezometer data from the monitoring
wells at the site; and numerous other issues from which
the trier of fact could have concluded that the
petitioner had failed to meet its burden.
(V.
Br.
at 29.)
Further, the Village points out that the Board’s manifest
weight of the evidence determination must be made on the Village
record.
Thus,
the Village argues when NRC’s arguments “are shorn
of discussions” of evidence outside the Village record or upon
NRC’s “alleged compliance with” Board regulations, “there is
little left other than a request by the petitioner that the Board
engage in impermissible weighing of the evidence”.
(V.
Br. at
30.)
The ainicus maintains that
NRC
“again refers to statements
made by certain of the experts retained by the Village in an
attempt to somehow claim that these opinions are binding upon the
Village”.
(Am.
Br.
at 13.)
The amicus states that the record
indicates that the NRC site investigation, testing,
and
conclusions were fundamentally flawed.
(Am. Br.
at 13.)
The
amicus brief then discusses several points
in the individual
reports prepared by Drs. Aughenbaugh and Rockaway which describe
deficiencies
in the application.
(Am. Br.
at 13—16.)
The amicus
also delineates portions of the testimony at the Village hearing
16
which also points to flaws in
NRC
siting application.
(Am.
Br.
at 16—32.)
Finally, the amicus states that:
A review of the totality of this record clearly
demonstrates the failure of the Petitioner to meet its
burden of proof.
The review of that evidence
undeniably establishes that the findings and decision
of the Village Board as to Criteria no.
2 was correct
and is supported by the manifest weight of the
evidence.
(Am. Br.
at 32.)
The Village record is replete with evidence concerning the
issue of whether
NRC
demonstrated that the facility would be
designed,
located and proposed to be operated so that the public
health safety and welfare will be protected.
As stated above,
the Board cannot reweigh the evidence.
Thus,
issues regarding
the credibility of any witness who testified at the Village
hearing are not for the Board to determine.
Further, the issue
of which technical experts are more “expert”
are also not for the
Board to determine.
Rather,
the Board must examine the record
and determine if the Village’s decision is against the manifest
weight of the evidence.
NRC’s experts were questioned extensively concerning the
site at hearing, calling into question the integrity of the
studies undertaken.
Further, the opponents provided extensive
testimony,
also questioning the integrity of the site
investigation.
Therefore, the Board finds that the Village’s
decision is not against the manifest weight of the evidence as a
different result is not “clearly evident, plain, or indisputable
from a review of the evidence”.
CONCLUSION
NRC challenged the decision of the Village asserting that
the proceedings were fundamentally unfair and the decision was
against the manifest weight of the evidence.
After extensively
reviewing the record in this case, the Board finds that the
Village’s decision was not fundamentally unfair and the decision
was not against the manifest weight of the evidence.
Therefore,
the Board affirms the denial by the Village of Lake in the Hills
for the siting of
a new regional pollution control facility.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
17
The Board affirms the Village of Lake in the Hills December
15,
1992,
denial of the Material Recovery Corporation’s request
for siting of a new regional pollution contro)
facility in
McHenry County,
Illinois.
IT IS SO ORDERED
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041) provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
(See also 35
Ill. Adm. Code 101.246, Notions for Reconsideration.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion ancL.order was
adopted on the
___________________
day of
1993,
by a vote of
-,~--~‘
I
~nn,
Pp~lutionControl Board
‘~~1
