ILLINOIS POLLUTION CONTROL BOARD
May 7,
1992
WASTE HAULING, INC.,
)
Petitioner,
cr.
)
PCB 91—223
)
(Landfill Siting
MACON COUNTY BOARD,
)
Review)
)
Respondent.
DARRELL
E.
STATZER, JR., of WILSON, DYAR, MOSS
& STATZER, and
THOMAS J.
IMNEL,
of IMMEL,
ZELLE, OGREN, McCLAIN & COSTELLO,
APPEARED ON BEHALF OF PETITIONER;
THOMAS
H. MOODY APPEARED ON BEHALF OF RESPONDENT;
and
LEO W. QUIGG, JR.,
of FULLER,
HOPP,
McCARTHY, QUIGG
& BYERS,
APPEARED
ON
BEHALF
OF
AMICUS
CURIAE
ORGANIZATION
FOR
ENVIRONMENTS
AND
RESIDENTS’
SAFETY.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board on a November
15,
1991
petition for review of the October 26,
1991, decision of
respondent the Macon County Board (County Board).
Petitioner
Waste Hauling,
Inc.
asks that this Board review the County
Board’s decision denying site approval to Waste Hauling for
expansion of its existing landfill facility.
The petition for
review is brought pursuant to Section 40.1 of the Environmental
Protection Act
(Act).
(I11.Rev.Stat.
1989,
ch.
111 1/2,
par.
1040.1.)
On January
3,
1992,
the hearing officer granted amicus
curiae status to the Organization for Environments and Residents’
Safety (OFEARS).
That ruling was upheld by the Board on January
23,
1992.
This Board held a public hearing on the petition for
review on January 7,
1992.
PROCEDURAL HISTORY
On April
30,
1991, pursuant to Section 39.2 of the Act,
Waste Hauling filed an application with the County Board for
siting approval of a vertical and horizontal expansion of its
existing landfill.
(C.
1_4.)1
The landfill is located on Rock
Springs Road, near Decatur,
Illinois.
(C.
14, 94.)
Waste
1
The local record will be denoted by
“C.”,
and references to
the transcripts
of the local hearings will be indicated by “Tr.”
and the date of that local hearing.
133—24 1
2
Hauling requested, an expansion of the existing facility from its
present
14 acres to approximately 1372 acres,
and to a final
height of 725 feet.
(C.
3—4.)
Of the requested 137.2
acres,
roughly 75 acres would actually be used for expansion of
landfilling activities.
(Tr. 7/30/91 at 62.)
The County Board
siting committee held public hearings on Waste Hauling’s
application on July 30, August
1,
20,
21,
24,
27, 29,.September
6,
12,
17,
19, and 24.
The siting committee deliberated on
October
5,
12, and 19, and on October 25, voted 5—1 to recommend
denial of Waste Hauling’s application.
(Tr. 10/25/91 at 52—59.)
On October 26,
1992, the full County Board voted to deny the
application,
by a 20—0 vote.
(C.
1553—1560.)
Waste Hauling then
filed the instant appeal of that decision with this Board on
November
15,
1991.
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
can siting approval be granted.
The County Board found that two
criteria relating to hazardous waste and regulated recharge areas
were not applicable to this application, and that the application
demonstrated compliance with the requirement that the facility be
located outside the 100 year flood plain or be adequately flood-
proofed.
However, the County Board concluded that the applicant
had not shown compliance with the other six criteria.
Therefore,
the County Board denied siting approval for the proposed
expansion.
‘
(C.
1553—1560.)
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.
Inc. v. County
of McLean
(4th Dist.
1991),
207 Ill.App.3d 352, 566 N.E.2d 26,
29;
Waste Management of Illinois,
Inc.
v. Pollution Control
Board
(2d Dist.
1987)
,
160 Ill.App.3d 434,
513 N.E.2d 592; E
& E
Hauling,
Inc.
v. Pollution Control Board
(2d Dist.
1983),
116
Ill.App.3d 586, 451 N.E.2d 555, aff’d in part (1985)
107 Il1.2d
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
(4th Dist.
1983),
115 I1l.App.3d 762, 451 N.E.2d 262,
265.)
The
Board,
on review,
is not to reweigh the evidence.
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 Taskforce v.
Pollution Control Board
(3d Dist.
1990), 198’Ill.App.3d 541,
555
N.E.2d
1178,
1184;
Tate
v.
Pollution
Control
Board
(4th
Dist.
133—242
3
1989),
188 Ill.App.3d 994,
544
N.E.2d
1176,
1195; Waste
Management of Illinois,
Inc.
v. Pollution Control Board
(2d Dist.
1989),
187 Ill.App.3d 79,
543 N.E.2d 505,
507.)
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.,
PCB 90-94
(August
30, 1990),
aff’d File v.
D
& L
Landfill,
Inc.
(5th
Dist.
1991),
219
Ill.App.3d
897,
579
N.E.2d
1228.
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,
451 N.E.2d at 562.)
Waste Hauling has not
raised any jurisdictional issues, but has raised a question of
fundamental fairness.
Because the issue of fundamental fairness
is a threshold matter, the Board will consider that issue first.
FUNDAMENTAL FAIRNESS
Waste Hauling argues that it was denied fundamental fairness
by the County Board, maintaining that the County Board considered
evidence which was not
in the record, and that the County Board
considered criteria other than those in the statute in making its
decision.
First,
Waste Hauling contends that transcripts of the
siting committee’s meetings in October show that the committee
considered written materials, relating to the merits of the
application, which were not submitted during the public hearings
and were not provided to Waste Hauling.
Waste Hauling maintains
that the committee considered the written materials over Waste
Hauling’s objections,
without Waste Hauling having an opportunity
to examine the materials,
cross—examine the authors, or rebut the
material in writing.
Waste Hauling argues that this procedure
denied it fundamental fairness and tainted the local proceedings.
Waste Hauling contends that to any extent that the complained-of
materials were staff comments received within 30 days of the
close of the hearings,
as provided for in Section 39.2(c), the
comments were still prejudicial, since Waste Hauling had no
opportunity to respond.
Second, Waste Hauling contends that the siting committee
improperly considered matters which are not at issue under the
statutory mandate of Section 39.2.2
Waste Hauling alleges that
the committee considered whether the granting of this application
~ The
Board notes that Waste
Hauling’s contention
that the
siting
committee
considered
matters
other
than
the
statutory
criteria was raised at the Board hearing, but was not discussed in
either Waste Hauling’s opening brief
or
its
reply
brief.
(Bd.
hearing tr.
at 33-35.)
133—243
4
would have any impact on a possible siting application by a
competing landfill, although that other application was never
filed.
Waste Hauling also maintains that the committee
considered whether the size of the proposed facility would
encourage importation of waste from other counties, and that
improper communications between a County Board member and an
employee of the Illinois State Geological Survey were considered
as a basis for denying the application.
In response, the County Board contends that the materials to
which Waste Hauling objects were written comments properly
received within 30 days after the close of the local hearings and
the advice of staff members.
The County Board maintains that
these materials had no effect on its decision in the technical
areas discussed.
The County Board also argues that this
situation is ‘similar to a situation which was approved by the
Board and the appellate court, where the report of an expert was
submitted during the public comment period.
Fairview Area
Citizens Taskforce v. Pollution Control Board
(3d Dist.
1990),
198 Ill.App.3d 541,
555 N.E.2d 1178.
Amicus
OFEARS
contends
that
Waste
Hauling has not
specifically identified the materials of which it complains,
or
explained how it was prejudiced by the materials.
OFEARS states
that Waste Hauling is apparently referring to geological reports,
and argues that the record makes clear that the County Board did
not rely upon those reports.
OFEARS points out that the County
Board found that a landfill might be properly sited in the
proposed location, but found that criterion two had not been met
because of concerns about the operator’s previous operating
record.
Therefore, OFEARS argues that Waste Hauling has not been
prejudiced by the materials at issue.
Initially, the Board notes that its review of the
fundamental fairness claims has been greatly hampered by Waste
Hauling’s failure to specifically identify which written
materials it complains
of, and failure to provide any citations
to the record or the transcripts in support of either of its
fundamental fairness arguments.
The Board has nevertheless
reviewed the record, transcripts, and arguments of the parties
and the amicus, and finds no violation of fundamental fairness.
As to the contention that the siting committee improperly
considered certain written materials, the Board believes that
Waste Hauling objects to reports submitted by Paul McChancy, the
county’s chief planner and zoning officer
(C. 1376—1383)
and by
Bob Johnson, the county’s solid waste management director
(C.
1389-1408).
The Board finds that these reports were properly
part of the record, since they were apparently submitted during
the 30-day public comment period provided for in Section 39.2(c)
133—244
5
of the Act.3
The submission of reports by experts hired by the
local decisionmaker was upheld in Fairview Area Citizens
Taskforce
v.
Pollution
Control
Board
(3d
Dist.
1990),
198
Ill.App.3d
541,
555
N.E.2d
1178,
1182.
Waste
Hauling
correctly
points
out
that
in
that
case,
the
applicant
had
an
opportunity
to
respond to all comments after the close of the comment period.
However, the decision
in Fairview Area Citizens Taskforce is not
hinged
on
any opportunity to respond
(provided for in the local
ordinance),
but to the statutory provision for a comment period.
As this Board has previously discussed:
the landfill siting process includes a 30-day post-hearing
public comment period without including a restriction of the
scope
of comments to discussion of information already in
the record.
(City of Rockford v. Winnebago County Board,
PCB 87—92, p.20 (November 19,
1987).)
This provision does
limit the ability to rebut all on-record information, but
that is how the statutory scheme has been established.
See
Section 39.2.
Fairview Area Citizens Taskforce v. Village
of Fairview, PCB 89-33
(June 22,
1989 at 10).
The statute does not require that an applicant (or any other
participant) have an opportunity to rebut comments properly filed
during the 30—day comment period.
Where,
as here,
staff reports
and recommendations are submitted within the statutory public
comment period,
the Board finds no fundamental unfairness in any
consideration of those reports and recommendations by the local
decisionmaker.
Waste Hauling apparently also objects to the information
supplied by the Illinois State Geological Survey (ISGS).
The
record shows that there was contact between Mr. Johnson and Sam
Panno of the ISGS,
and that the chief of the ISGS, Morris W.
Leighton, followed up that contact with a letter to the County
Board.
(C.
1495—1496.)
The letter from Mr.
Panno, which was
read into the record at the siting committee’s October 19
meeting, does express several concerns about the location and its
hydrogeology.
(Tr. 10/19/91 at 43-47.)
However, both contacts
from the ISGS were submitted before the close of the public
comment period.
As stated above,
there is nothing improper about
a local decisionmaker considering information received d,uring the
public comment period.
That~is the intent of the statute.
Additionally, as OFEARS points out, Waste Hauling has failed to
even allege what prejudice it suffered as a result of this
information from the ISGS.
Indeed, the County Board specifically
~ Although Mr. Johnson’s report
is not dated,
it appears in
the
county record between
items dated October
2
and October
8,
1991.
The Board finds that the record indicates that Mr. Johnson’s
report was submitted
before the October
24,
1991 close
of the
public comment period.
133—245
6
found that
a facility could be safely sited at the proposed
location, despite the questions raised about the appropriateness
of the site.
(C.
1555.)
The County Board’s finding that Waste
Hauling had not demonstrated that it met criterion two was based
on the Board’s concerns over the applicant’s operating history.
Waste Hauling has not demonstrated that it suffered any
prejudice, even if the contacts with the ISGS had been improper.
Review of Waste Hauling’s contention that the siting
committee improperly considered matters which are not included in
the criteria of Section 39.2(a) has also been difficult because
of Waste Hauling’s failure to provide citations to the
transcripts in support of its claims.
However,
a review of the
transcripts of the siting committee’s meetings in October does
show that there was some discussion of factors such as out—of—
county and out—of—state waste, the experience of another near—by
county after it granted siting approval for a landfill, and the
possible expansion request of another competing landfill.
These
issues are not properly before a local decisionmaker pursuant to
Section 39.2.
However,
the transcripts also show that the
recommendation of the siting committee that the application be
denied was based upon the seven applicable statutory criteria.
(Tr.’ 10/25/91 at 25-59.)
The County Board’s brief discussionof
the vote on the siting committee’s recommendation does not show
consideration of any improper factors.
The Board finds,
based on
the record before
it, that the County Board’s decision was
properly based upon the statutory criteria, and not upon other
issues.
All that the statute requires
is that the decision
itself be based on the criteria.
As the appellate court stated
in Fairview Area Citizens Taskforce,
“while
these listed
criteria must be satisfied, the statute does not state these are
the
only
factors
which
may
be
considered.”
(Fairview
Area
Citizens Taskforce,
555 N.E.2d at 1182.)
The Board finds no
fundamental unfairness in this case.
CHALLENGED
CRITERIA
Waste Hauling has raised challenges to all six criteria
which the County Board found were not met by the application.
The criteria in dispute are:
whether the facility is necessary
to accommodate the waste needs of the area it is intended to
serve
(Section 39.2 (a) (1)); whether the facility is so designed,
located,
and proposed to be operated that the public health,
safety, and welfare will be protected (Section 39.2(a) (2));
whether the facility
is located so as to minimize
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property
(Section 39.2(a) (3)); whether the plan of operations for the
facility is designed to minimize the, danger to the surrounding
area from fire,
spills,
or other operational accidents
(Section
39.2(a) (5)); whether the traffic patterns to or from the facility
are so designed as to minimize the impact on existing traffic
133—246
7
flows
(Section 39.2(a) (6));
and whether the facility is
consistent with the county’s adopted solid waste management plan
(Section 39.2(a) (8)).
As noted above, the Board must review the County Board’s
decisions on the challenged criteria on a manifest weight of the
evidence standard.
Need
The first criterion which the local decisioninaker must
consider in ruling upon an application for local site approval is
whether “the facility is necessary to accommodate the waste needs
of the area it
is intended to serve”.
(I1l.Rev.Stat. 1989,
ch.
1,11 1/2, par.
1039.2(a)(1).)
In its resolution, the County Board
found that the proposed service area was unclear, but assumed
that
the
service
area
was
Macon
County.
If
the
facility
is
intended
to
serve
areas
other
than
Macon
County,
the
County
Board
found that the application did not contain sufficient detail
describing the service area to meet the criteria.
Assuming the
proposed service area is Macon County, the County Board found
that while the county will always need a landfill, the proposed
facility’s life expectancy of between 25 and 50 years would far
exceed the waste needs of Macon County.
Therefore, the County
Board found that the facility did not meet criterion one.
(C.
1554—1555.)
Waste
Hauling
argues
that
there
is
no
support
in
the
record
for the County Board’s conclusion that the proposed facility
would not meet the waste needs of the service area.
Waste
Hauling’s argument centers around the County Board’s finding that
the proposed facility is too big--that the life expectancy of the
facility exceeds the county’s needs.
Waste Hauling contends that
it
is undisputed that Macon County needs additional landfill
capacity,
and points out that this proposed facility would
provide capacity throughout the 20 year period covered by the
county’s solid waste management plan.
Waste Hauling notes that
its president, Jerry Camfield, testified that Waste Hauling’s
existing landfill had approximately one year of capacity, and
that if the Waste Hauling facility closes, the other major
landfill in the county (Macon County Landfill) would run out of
space by the end of 1995 or in early 1996.
(Tr. 7/30/91 at 57—
59.)
Mr. Camfield testified that the proposed expansion would
last 30 to 35 years.
(Tr. 7/30/91 at 93.)
Waste Hauling also
maintains that Don Sheffer,
a consulting engineer who was a
consultant
to
the
committee
which
formulated
the
county’s
solid
waste management plan, testified that unless one or both of the
two existing landfills expanded, there would not be enough
landfill
space
in
Macon
County
to
get
through
the
20
year
period
in
the
solid
waste
management
plan.
(Tr.
8/27/91
at
10.)
Waste
Hauling contends that the testimony on this criterion offered by
OFEARS was not presented by experts, and was based on speculation
133—247
8
as
to
what
might
happen
to
the
county’s
need
for
landfill
space
if
recycling
and
‘waste
reduction
programs
are
implemented.
Waste
Hauling argues that it met its burden of proving that the
proposed facility is reasonably required by the waste needs of
the
service
area
(Waste
Management
of
Illinois
v.
Pollution
Control Board
(3d Dist.
1984),
122 Ill.App.3d 639,
461 N.E.2d
542),
and
that
there
is
no
competent
evidence
in
the
record
to
rebut
that
showing.
Waste
Hauling
contends
that
the
County
Board
has concluded that the landfill as proposed might somehow outlive
the existence of Macon County.
In response, the County Board maintains that there was
conflicting testimony on the issues of when landfill space in
Macon County would be exhausted, and how much additional capacity
is needed.
The County Board points to testimony from John
Thompson, executive director of the Central States Education
Center, that the life expectancy of the existing landfills could
be extended through waste reduction measures which could be
implemented quickly.
Mr. Thompson testified that the requested
75 acre expansion would last 40 to 50 years, and that he believed
that such an expansion is beyond the waste needs of Macon County.
(Tr. 9/12/91 at 79, 88—89.)~ The County Board argues that it is
obvious that since it took ten years to fill the. present
14 acre
Waste Hauling Landfill,
a continuation of business as usual would
require only 28 acres to carry the county through the 20-year
planning period in the solid waste management plan.
The County
Board asserts that it is equally obvious that the proposed 75
acre increase in capacity “was not designed to meet the waste
needs of Macon County, but rather to simply increase the private
business potential of the operation.”
(County brief at 3.)
The
County Board characterizes Waste Hauling’s arguments as assuming
that so long as there is a need in the county for additional
landfill space,
the County Board is without authority to limit
landfill expansion to that need. The County Board contends that
such a position ignores the responsibilities of the County Board
towards the citizens of the county.
OFEARS also contends that the record contains conflicting
information on the county’s remaining landfill capacity, and the
life expectancy of the proposed facility.
OFEARS concludes that
because of the conflicting testimony, the County Board’s decision
is not against the manifest weight
of. the evidence.
OFEARS
maintains that an applicant must show that a proposed facility is
reasonably
required
by
the
waste
needs
of
the
area,
including
consideration of its waste production and disposal capacities.
Waste Management of Illinois v. Pollution Control Board
(2d Dist.
“
The Board notes that the County Board’s citations to the
transcripts are often either incomplete or wrong,
and urges that
all
parties
use
more
caution
in
providing
complete,
accurate
citations.
133—247.
1
9
1988),
175 Ill.App.3d 1023,
530 N.E.2d 682.
After
a review of the record and the arguments, the Board
concludes that the County Board’s decision that the application
did not demonstrate compliance with criterion one was not against
the manifest weight of the evidence.
It is true that much of the
testimony related to this criterion was speculative, and that
other testimony was irrelevant.
For example, the experience of
Christian County after granting site approval for a landfill
is
not relevant to the issue of whether Waste Hauling’s application
demonstrated compliance with criterion one.
Likewise,
consideration of need based upon what might happen if another
landfill applied for approval to expand, or if a refuse-derived
fuel facility began operating,
is speculative and should not be
considered, when neither facility has even applied for siting
approval.5
The Board notes that it is difficult to draw a
“bright line” between impermissible speculation and permissible
planning considerations, but finds that in this case that line
was crossed into speculation.
Nevertheless, there
is plausible
evidence in the record which supports the County Board’s
conclusion that the proposed facility is too big for the waste
needs of Macon County.
Mr. Thompson testified that he believed
that the proposed expansion was more than Macon County needed,
and other objectors voiced similar beliefs.
Where,
as here,
there is conflicting evidence, this Board is not free to reverse
merely because the local decisionmaker credits one group of
witnesses and does not credit the other.
(Fairview Area Citizens
Taskforce v. Pollution Control Board,
555 N.E.2d at 1184.)
The
Board cannot say that the County Board’s decision was against the
manifest weight of the evidence.
The Board finds that it is
within a local decisionmaker’s authority to decide that a
proposed facility has too much capacity for a proposed service
area.
The Board also finds that the County Board’s finding that
the proposed service area is unclear is not against the ‘manifest
weight of the evidence.
Our review of the record has found no
specific delineation of the proposed service area.
Public Health. Safety,
and Welfare
The second criterion which the local decisionmaker must
~ The Board notes that the County Board states in its brief
that an
RDF
facility
is now in operation in the county.
(County
brief
at
4.)
However,
the
only
evidence the
Board
has
found
relating to RDF facilities in Macon County is the testimony of Mr.
Sheffer that there
are no significant facilities
in the county
which burn waste for energy recovery.
Mr. Sheffer noted that there
are
a couple
of facilities where pellets are ‘burned to generate
heat for
a. particular building,
but testified that there are no
substantial instances of burning waste for energy recovery.
(Tr.
8/27/91 at 47—48.)
133—248
10
consider when ruling upon an application for local site approval
is whether “the facility is so designed,
located,
and proposed to
be operated that the public health,
safety, and welfare will be
protected.”
(Ill.Rev.Stat.
1989,
ch.
ill 1/2, par.
1039.2(a)(2).)
In its resolution, the County Board found that a
facility can be safely sited at the proposed location, and that
the design of the proposed facility meets or exceeds applicable
regulations.6
However,
the County Board stated that given
numerous past violations of regulations at the existing Waste
Hauling facility, the future operation of the facility is a key
element in ensuring the protection of the public health, safety,
and welfare.
The County Board found that the application does
not contain sufficient details demonstrating how the facility is
proposed to be operated so as to satisfy criterion two.
(C.
1555—1556.)
Waste Hauling argues that there is no support in the record
for the County Board’s conclusion that the application lacked
details as to operation.
Waste Hauling contends that its draft
permit application (prepared for possible submission to the
Illinois Environmental Protection Agency, and submitted to the
County Board with the application for siting approval) details
all operational phases of the facility, and demonstrates
compliance with the applicable regulations.
(C.
91-664.)
Waste
Hauling also points to the testimony of Robert Krimmel, the
design engineer,
on this issue,
and to testimony from the
sanitarian from the Macon County Health Department that overall
the facility does an excellent
job
with daily cover and litter
control.
(Tr.
8/29/91 at
58-62.)
Waste Hauling maintains that
the evidence as to operating violations reveals five violations
over a period of approximately five years, and that other
concerns raised by the objectors ‘are simply concerns, not
evidence.
Waste Hauling argues that Mr. Krimmel’s testimony is
unrebutted,
and
that
the
decision
of
the
County
Board
is
against
the
manifest
weight
of
the
evidence.
The
County
Board
notes
that
Section
39.2(a)
of the Act
allows the local decisionmaker to consider the previous operating
experience and past record of convictions or admissions of guilt
of the applicant in the field of solid waste management when
considering criteria two and five.
The County Board maintains
that the record includes evidence on Waste Hauling’s past
operating record,
including Illinois Environmental Protection
Agency
inspection
reports.
(C.
808-1075.)
6
The Board
notes that the County Board’s resolution finds
that
the
facility
meets
the
regulations
of
the
Illinois
Environmental
Protection
Agency.
In
fact,
environmental
regulations in Illinois,
including those governing landfills, are
Pollution Control Board regulations.
133—249
11
OFEARS contends that based on the evidence of Waste
Hauling’s past violation of state regulations, the County Board’s
concern as to the safety of the future operation of the facility
is well justified.
OFEARS states that Mr. Camfield acknowledged
that he was unable to obtain
a closure permit because the
existing facility is in violation of its height limitation.
(Tr.
7/30/91 at 97.)
OFEARS also maintains that there was
considerable evidence introduced regarding the safety of the
roads to and from the facility.
(C.
758—770; Tr. 9/6/91 at 5—8.)
Thus,
OFEARS argues that the County Board correctly determined
that Waste Hauling had failed to meet its burden of demonstrating
compliance with criterion two.
After a careful review of the evidence, the Board finds that
the County Board’s decision that “t)he
application does not
contain sufficient details describing how the facility is
proposed to be operated to demonstrate compliance with this
criterion” is against the manifest weight of the evidence.
(C.
1556.)
The County Board specifically found that the facility can
be safely sited at the proposed location,
and that the design of
the facility meets or exceeds the applicable regulations.
(C.
1555.)
Therefore,
the only inquiry before this Board
is whether
the finding regarding the sufficiency of the plan of operations
is against the manifest weight of the evidence.
The draft permit
application,
submitted with Waste Hauling’s siting application,
includes an eighteen page operating plan.
(C.
350-367.)
That
operating plan includes information on the source of the solid
waste,
the, method of landfill,
personnel,
fencing and litter
control,
odor control, dust control, groundwater monitoring,
and
a quality assurance plan,
among other things.
Additionally,
Mr.
Kriminel testified as to the proposed operating plan for the
facility.
(Tr.
8/20/91 at 53-60.)
Neither the County Board nor
OFEARS has pointed to any evidence in the record which in any way
rebuts or discredits the written plan of operations or Mr.
Krimmel’s testimony, nor is there any explanation of what might
be missing from the plan.
In a situation where the applicant has
made
a prima fade showing that the applicatidn satisifies
a
particular criterion, and where there
is no evidence in the
record to rebut or impeach that evidence,
it is against the
manifest weight of the evidence for the decisionmaker to conclude
that the particular criterion has not been satisfied.
(Industrial Fuels
& Resources/Illinois,
Inc.
v. Pollution Control
Board
(1st Dist. March
19,
1992),
No.
1—91—0144,
slip op. at 22,
26; Fairview Area Citizens Taskforce,
555 N.E.2d at 1184—1187.)
The Board has found absolutely no evidence which challenges or
rebuts Waste Hauling’s plan of operations.
Therefore,, the County
Board’s decision that the app1ic~tiondid not contain sufficient
details describing how the facility is proposed to be operated
is
against the manifest weight’ of the evidence.
The Board recognizes that there
is evidence of past
I
33—25()
12
violations of state regulations
at the existing facility.7
However,
the County Board’s resolution focuses on the plan of
operations,
not the past violations.
The briefs filed by the
County Board and OFEARS seem to argue that simply because the
record contains evidence of past violations, that
is
in itself
sufficient to support the County Board’s decision on criterion
two.
The Board rejects that contention.
The inquiry before the
Board on ‘criterion two is whether the County Board’s decision
that the plan of operations was insufficient is against the
manifest weight of the evidence.
The Board’s review is not
solely whether there is evidence of past operating violations.
Finally,
as to OFEARS’ contention that evidence shows
questions about the safety of the roads leading to the facility,
the Board reiterates that the County Board specifically found
that the facility could be safely sited in the proposed location.
That decision is not on review before the Board.
Character of Area and Property Values
The third criterion which the local decisionmaker must
consider when ruling upon an application for local siting
approval is whetñer “the facility is located so as to minimize
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property.”
(Ill.Rev.Stat.
1989,
ch.
111
1/2, par.
1039.2(a)(3).)
In its
resolution, the County Board found that the requested increase in
the height of the landfill would be inconsistent with the
topography
of, the surrounding area, and that the horizontal
expansion to 137 acres would remove all of the existing trees
except those
in the buffer area.
The County Board stated that
this would greatly reduce the natural visual screening, while the
landfill operation expanded toward the neighboring properties.
Therefore,
the County Board concluded that the increased height
of the landfill plus the loss of the trees make the landfill
visually incompatible with the area.
The County Board also found
that the expansion would have no significant negative effect on
property values
if the volume of truck traffic stayed at or near
present levels.
However, the County Board felt that if the
number of trucks drastically increased, as might happen if the
landfill was expanded to 137 acres, property values could be
significantly affected.
Thus,
the County Board concluded that
the facility
is not so located as to minimize incompatibility
~‘
The
Board
notes
that although both the County Board
and
OFEARS continually refer to “vio4tions”, a number of the instances
cited by the County Board and OFEARS are inspection reports by the
Illinois Environmental Protection Agency,
upon which
no
further
action was apparently taken.
Mr. Camfield did testify that Waste
Hauling
had paid fines
on approximately eight violations
in the
past. eleven years.
(Tr.
8/1/91 at 10.)
I
13—251
13
with
the
character
of
the
surrounding
area
and
to
minimize
the
effect
on
the
value
of
the
surrounding
property.
(C.
1556—1567.)
Waste Hauling contends that the testimony and evidence
supports the County Board’s conclusion that there would be no
effect on property values as long as the volume of truck traffic
did not significantly change.
However, Waste Hauling objects to
the County Board’s “speculation” that if the number of trucks
were dramatically increased,
property values could be
significantly affected.
Waste Hauling points to the testimony of
Mr. Camfield that there would be no increase in traffic.
(Tr.
7/30/91 at 78.)
Waste Hauling also challenges the County Board’s
finding that the proposed expansion is “visually incompatible”
with the area.
Waste Hauling maintains that the engineering
detail
in the draft permit application demonstrates the existence
of a buffer zone and vegetative screening, and that Mr. Krimmel
testified that the screening would temper any aesthetic impact
created by the height of the facility.
Waste Hauling argues that
it need only show that the facility is located so as to minimize
incompatibility with the surrounding area, not that there will be
no impact.
(Moore v. Pollution Control Board
(5th Dist.
1990),
203 Ill.App.3d 855,
561 N.E.2d
170.)
Waste Hauling contends that
its evidence on this criterion is uncontroverted, and that the
County Board’s decision is against the manifest weight of the
evidence.
In response, the County Board states that although Mr.
Camfield testified that he had no present intent to increase the
amount of truck traffic, virtually every other witness testified
that the size of the expansion indicates the possibility of an
increase
in truck traffic.
The County Board also maintains that
the testimony of Waste Hauling’s real estate appraiser,
Mr.
Johnson,
on the issue of compatibility was strongly contested by
several other witnesses.
(Tr. 8/29/91 at
86,
99—102,
110—112;
Tr.
9/12/91 at 19.)
The County Board argues that an applicant
cannot establish compatibility based upon the fact that a
facility already exists in the area,
and that the statute.
requires the local government to consider
a proposed expansion as
a new and separate facility.
Waste Management of Illinois
v.
Pollution Control Board
(2d Dist.
1984),
123 I1l.App.3d 1075,
463
N.E.2d 969.
OFEARS argues that the record contains testimony impeaching
the testimony of Mr. Johnson,
the real estate appraiser, and that
therefore the County Board was well justified in rejecting the
only evidence presented in connection with property values.
OFEARS also contends that the County Board correctly concluded
that the facility was not located so as minimize incompatibility
with the surrounding area.
OFEARS states that the record shows
that the area is residential, with numerous neighbors near the
facility, and that the area
is utilized as a recreational area
for canoeists, bicyclists,
hikers, and horseback riders.
OFEARS
33—252
14
contends
that
it
cannot
be
said
that
the
County
Board’s
determination on criterion three is against the manifest weight
of
the
evidence.
This Board concludes,
after reviewing the record, that the
County Board’s decision that the application did not demonstrate
compliance with criterion three is not against the manifest
weight of the evidence.
The Board agrees with Waste Hauling that
the County Board’s reasoning that the amount of truck traffic
might drastically increase, thus significantly affecting property
values,
is speculative.
However, there is evidence in the record
which supports a conclusion that the proposed facility is not
located so as to minimize incompatibility with the surrounding
area.
Witnesses testified to the recreational activities
in the
area,
the beauty of the area,
and the fact that the landfill
could be seen from over a mile away.
(E.g.
Tr. 9/12/91 at 16—
29.)
As previously stated, the Board is not free to reverse
because the local decisionmaker credits one group of witnesses
and not another group.
(Fairview Area Citizens Taskforce,
555
N.E.2d at 1184.)
The Board cannot say that the County Board’s
finding that criterion three had not been satisfied was against
the manifest weight of the evidence.
An applicant must
demonstrate compliance with both portions of the criterion:
minimizing incompatibility with the surrounding area,
and
minimizing the effect on property values.
Simply because the
County Board’s reasoning on one portion of the criteria was
speculative does not mean that the finding that the other portion
has not been met was against the manifest weight of the evidence.
Emer~encvPlan
The fifth criterion which is to be considered by a local
decisionmaker is whether “the plan of operations for the facility
is designed to minimize the danger to the surrounding area from
fire,
spills,
or other operational accidents.”
(Ill.Rev.Stat.
1989,
ch.
111 1/2,
par. 1039.2(a)(5).)
The County Board,
in its
resolution,
noted that the application states that emergency
plans will be developed in the operational plan to be submitted
to the Illinois Environmental Protection Agency as part of the
final permit application.
The County Board concluded that
because the application did not include an emergency plan, the
application lacked sufficient details for the County Board to
make an informed decision.
Therefore, the County Board found
that the applicant had not proven compliance with criterion five.
(C.
1557.)
Waste
Hauling
contends
that,the
County
Board
was
incorrect
in concluding that the application did not contain an emergency
plan.
Waste Hauling points to Mr. Krimmel’s testimony that the
operating plan had been fully covered in the draft permit
application,
submitted as part of the record.
(Tr. 8/20/91 at
55-57;
C.
91—664.)
Waste
Hauling
argues that the operating plan
I
33-25.3
15
covers all necessary details regarding fires,
spills, and other
operational accidents.
Waste Hauling contends that any argument
by the County Board that the plan was not adequately presented to
the County Board ignores that fact that the trier of fact must
consider all competent evidence before it,
including the draft
permit application, submitted into the record as an exhibit.
The County Board argues that although it might conclude from
a careful examination of the 553 pages of the draft permit
application that the overall plan of operations is sufficient to
satisfy criterion five, the facts were not adequately presented
to the County Board by Mr.
Krinimel’s conclusion that the
operational plan contained all the necessary information.
OFEARS
contends that Waste Hauling presented no evidence on this
criterion,
other than to indicate that one would be filed with
the Illinois Environmental Protection Agency.
OFEARS maintains
that Waste Hauling did not identify the plan or explain its
contents.
OFEARS argues that since Waste Hauling had the burden
of satisfying the criterion,
the County Board is not required to
divine the contents of the plan.
After a careful review of the record, the Board finds that
the County Board’s conclusion that the application does not
contain an emergency plan, thus failing to satisfy criterion
five,
is not against the manifest weight of the evidence.
Although Mr.
Kriminel testified that an emergency plan must be
prepared, and stated that all necessary elements appeared in the
draft permit application, his testimony consists of nothing more
than statements that a plan would be prepared.
(Tr. 8/20/91 at
55-57.)
The draft permit application does contain an operating
plan,
which refers to fire protection.
(C.
353.)
However, the
Board has found no reference to contingency plans for spills or
other operational accidents, and Waste Hauling has not provided
any
citation
to
such
plans,
other
than
a
general
citation
to
the
553
page
draft
permit
application.
The
Board
cautions the County
Board that it indeed is bound to consider all evidence before it,
including exhibits, no matter how voluminous.
The Board’s
decision that the County Board’s decision was not against the
manifest weight of the evidence is not based upon the County
Board’s assertion that the facts were not adequately presented by
Mr. Krimmel’s testimony.
Instead, the Board’s decision is based
upon a finding that the record shows no evidence of
a plan of
operations designed to minimize the danger from spills or other
operational accidents.
Therefore,
the Board finds that the
County Board’s decision on criterion five is not against the
manifest weight of the evidence.
Traffic Patterns
The
sixth
criterion
to
be
considered
by
a
local
decisionmaker
is whether “the traffic patterns to or from the
facility are so designed as to minimize the impact on existing
133—254
16
traffic flows”.
(Ill.Rev.Stat.
1989,
ch.
111 1/2, par.
1039.2(a)(6).)
The County Board found that Waste Hauling’s
projection that traffic volume would increase seven to nine
percent “ignores the opponent’s concerns that truck traffic to
the landfill has the potential to increase dramatically,
in
proportion with the size of the facility”.
(C.
1558.)
The
County Board stated that a significant increase in truck traffic
would have very harmful effects,
including traffic hazards and
increasing the annual cost of road and bridge maintenance.
Thus,
the County Board concluded that the proposed traffic patterns are
not so designed’ as to minimize impact on existing traffic flows.
(C.
1558.)
Waste Hauling argues that the County Board’s decision is
pure conjecture,
and is admittedly based upon “opponent’s
concerns” rather than the evidence.
Waste Hauling notes that Mr.
Camfield testified that there would be no significant increase
in
traffic,
and that James Vasconcelles, the traffic engineer
presented by Waste Hauling,
testified that the expansion would
have no impact on traffic flows even if traffic were to increase
seven to nine percent.
(Tr. 8/29/91 at 21.)
Waste Hauling
contends that it offered the only evidence on traffic volumes,
and that such evidence
is uncontroverted.
Therefore, Waste
Hauling maintains that the County Board’s conclusion is against
the manifest weight of the evidence.
In response, the County Board asserts that the County Board
‘members expressed “obvious credulity”
at Mr. Vasconcelles’
testimony.
The County Board argues that Jeffery Zeeb,
appearing
on behalf of the township road district, testified that although
the two-mile stretch of road leading to the landfill represents
about four percent of township road miles,
in 1989,
1990, and
1991 the township spent approximately 32 percent of its
maintenance funds on that stretch of road.
(Tr. 9/6/91 at 114—
115.)
The County Board contends that “in view of the fact that
garbage truck use of the township road can be expected to
increase and possibly double on Rock Springs Road if the
expansion is granted, the conclusion by the County Board that the
continued use and likely increase in use of the township road by
the landfill operator
in the event the expansion is granted
will
be severe is justified”.
(County brief at 16—17.)
The
County Board argues that in view of the
“imminent” closure of the
present facility, the proposed expansion should be viewed as a
request for a new facility.
OFEARS ‘contends that Mr. Vasconcelles acknowledged under
cross-examination that there were problems with the bridge and
roadway, and that he could not express an opinion as to the
safety of the bridge and roadways for any increase
in excess of
nine percent.
(Tr.
8/29/91 at 24-26.)
OFEARS also states that
Mr. Vasconcelles’ assumptions extended only five to ten years,
although the life expectancy
ofr the proposed expansion was as
133—255
17
high as fifty years.
OFEARS maintains that the County Board
correctly noted that the projections ignored legitimate concerns
that the volume of truck traffic would greatly increase.
OFEARS
rebuts Waste Hauling’s contention that it
is merely a vague
possibility that traffic would increase, stating that Mr.
Camfield testified that he would not commit to limiting the area
from which he would accept waste.
After a review of the evidence, the Board finds that the
County Board’s decision that criterion six was not satisfied is
against the manifest weight of the evidence.
There is no direct
evidence in rebuttal to Waste Hauling’s testimony about traffic
flows.
(The Board notes that, contrary to the County Board’s
argument, review of the evidence does not indicate any “obvious
credulity” of the County Board members at Mr. Vasconcelles’s
testimony.
(Tr. 8/29/91 at 37-41.))
The Board is troubled by the
County Board’s reliance on opponent’s “concerns” that truck
traffic may increase drastically, because of the size of the
proposed facility.
Size does not necessarily translate into
increased usage--indeed,
Mr.’ Canifield testified that the traffic
volume would stay the same.
(Tr. 7/30/91 at 78.)
It could be
that the proposed facility would operate at the same rate,
but
for a longer number of years.
The County Board’s finding that
criterion six was not satisfied
is hinged entirely on
its
“concern” that truck traffic will increase.
The issues of
traffic hazards and increased cost of maintenance are mentioned
only in connection with a significantly larger number of trucks.
There is no evidence that the anticipated traffic itself would
have any increased cost of maintenance above the existing
maintenance costs.
Quite simply, the Board finds no evidence in
the record, as opposed to concerns and speculation,
to support a
finding that there will be greatly increased numbers of trucks
using the road.
As the appellate court stated,
“The operative
word in the statute is
‘minimize.’
It is impossible to eliminate
all problems.”
(Fairview Area Citizens Taskforce,
555 N.E.2d at
1186.)
It
is important to recognize that the statutory
criterion only requires consideration of “existing traffic
flows”.
Truck traffic is currently a part of that existing
traffic flow.
The Board finds that the County Board’s decision
that criterion six was not satisfied is against the manifest
weight of the evidence.
Consistency with Solid Waste Management Plan
The eighth criterion to be considered by a local
decisioninaker in ruling upon an application for local siting
approval is whether “if the facility
is to be located in a county
where the county board has adoptdd a solid waste management plan,
the facility
is consistent with that plan”.
(Ill.Rev.Stat.
1989,
ch.
111
1/2, par. l039.2(a)(8).)
The County Board found that its
solid waste management plan states that landfills are to be
a
complement to other methods of solid waste management,
and that
I
33—256
18
landfilling
is not intended as the primary means for handling the
waste stream.
The County Board held that the proposed expansion
would greatly exceed the county’s need for landfill space,
and
would greatly exceed the 20-year plan period.
The County Board
further held that approval of such a large landfill could
discourage further implementation of other methods of waste
disposal,
such as recycling.
Therefore, the County Board
concluded that the proposed expansion is not consistent with the
adopted solid waste management plan.
Waste Hauling contends that the evidence in the record does
not support the County Board’s conclusion that the proposed
facility is not consistent with the solid waste management plan.
Waste Hauling points to testimony by Mr. Sheffer that the
expansion is not inconsistent with the plan,
and argues that
there is no other testimony by competent witnesses that the
facility is inconsistent.
Waste Hauling maintains that the
County Board’s finding that approval of a large landfill could
discourage implementation of other disposal options
is merely
speculation, and thus
is against the manifest weight of the
evidence.
The County Board argues,
in response, that the question of
whether the existence of excess landfill space would discourage
the development of alternative methods of disposal “is an issue
best left to the sound judgment of the County Board”.
(County
brief at 18-19.)
OFEARS contends that there
is indeed other
testimony in the record which rebuts Mr. Sheffer’s testimony,
and
points to testimony by Terry Cullison, president of Macon County
Landfill, and John Thompson that the expansion is not consistent
with the solid waste management plan.
(Tr. 9/6/91 at 39; Tr.
9/12/91 at 87—88.)
The Board finds, after reviewing the record, that the County
Board’s finding on criterion eight is not against the manifest
weight of the evidence.
The Board agrees with Waste Hauling that
the concerns that a large landfill might discourage
implementation of alternative methods of disposal seems
speculative.
Nonetheless, there is conflicting testimony in the
record as to whether the proposed expansion is consistent with
the solid waste management plan.
Merely because the local
government could have drawn different conclusions from
conflicting testimony
is not a basis for this Board to reverse
the local government’s findings.
(File
v.
D
& L Landfill,
Inc.,
PCB 90-94
(August 30,
1990),
aff’d File
V.
D
& L Landfill,
Inc.
(5th Dist.
1991),
219 Ill.App.3d 897,
579 N.E.2d 1228.)
The
County Board specifically found that the proposed expansion would
exceed the county’s need,
and would exceed the 20—year plan
period.
The County Board apparently credited the testimony of
Mr. Cullison and Mr. Thompson over Mr.
Sheffer’s testimony.
This
Board cannot say that the local decision is against the manifest
weight of the evidence.
31-257
19
CONCLUSION
In sum, the Board finds no violation of fundamental fairness
in this proceeding.
As to the challenged criteria, the Board
finds the County Board’s findings that criteria two and six were
not met to be against the manifest weight of the evidence.
The
County Board’s findings that oriteria one,
three,
five,
and eight
were not met are not against the manifest weight of the evidence.
Because an applicant must satisfy all applicable criteria, the
County Board’s denial of siting approval is affirmed.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The County Board’s findings on criteria two and six are
reversed as being against the manifest weight of the evidence.
The County Board’s findings ‘on criteria one, three,
five,
and
eight are affirmed.
Therefore, the County Board’s October 26,
1991 denial of local siting approval is affirmed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat.
1989,
ch.
111 1/2, par.
1041)
provides for the
appeal of final Board orders.
The Rules of the Supreme Court of
Illinois establish filing requirements.
J. Anderson concurred.
I,
Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order was
adopted on the
7”~Z’~
day of
______________,
1992, by a vote
of
7-c
.
,7
~Dorothy
M.
G~jhn,Clerk
Illinois Po~iutionControl Board
133—258
