ILLINOIS POLLUTION CONTROL BOARD
August 26,
1991
CLEAN QUALITY RESOURCES,
INC.,
Petitioner,
PCB 91—72
v.
)
(Landfill Siting
)
Appeal)
MARION COUNTY BOARD,
)
Re~pondent.
MR. WILLIAM P.
CRAIN SPECIALLY APPEARED ON BEHALF OF THE
PETITIONER.
MR. ROBERT SHUFF APPEARED
ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board on the May
1,
1991
“Special and Limited Appearance,
Petition for Review and
Objection to Supplemental Proceedings”
filed by Clean Quality
Resources,
Inc.
Clean Quality Resources (hereinafter “CQR”)
applied to the Marion County Board for site location suitability
approval for
a new regional pollution control facility pursuant
to Section 39.2 of the Illinois Environmental Protection Act
(hereinafter “Act”).
(Ill. Rev.
Stat.
1989,
ch.
111
1/2, par.
1039.2.)
CQR’s proposed facility is an aqueous hazardous waste
treatment and storage facility located outside of the City of
Centralia,
in Marion County.
CQR is appealing the Marion County
Board’s denial of site location suitability approval.
This matter
is before the Board for the second time.
The
case was originally docketed as PCB 90—216; the Board remanded
this matter to the Marion County Board
(hereinafter “MCB”)
on
February. 28,
1991.
A full history of this case is given
immediately below.
CQR has raised many issues challenging the actions of this
Board,
and the decision of the MCB.
These issues will be
addressed in full below.
The Board
finds,
after full
consideration of all the briefs and records1, that
1)
CQR’s
application for site location suitability is not approved by
operation of
law,
2) the MCB’s determinations on criteria
1,
2,
1
The Board hereby incorporates the briefs of the parties
submitted in PCB 90-216.
The, county board record for PCB 90-216
was incorporated into this proceeding
in the Board’s Order of May
9,
1991.
125—507
5,
6,
and 7, were not against the manifest weight of the evidence
and
3) the MCB’s determination on criterion 3 was against the
manifest weight of the evidence.
The Board hereby affirms the
Marion County Board’s denial of site location suitability.
BACKGROUND
ENVIRONMENTAL PROTECTION ACT
Pursuant to Sections 39(c) and 39.2(a) of the Act,
a new
regional pollution control facility is required to request and
receive, siting approval from the local county board before a
develop~ientor construction permit
is issued by the Illinois
Environmental Protection Agency
(“Agency”).
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, pars.
1039(c)
and 1039.2(a).)
Section 39.2(a)
provides that an applicant seeking site approval must demonstrate
compliance with each of the enumerated criteria of this section
before the county board can grant approval.
The decision of the
county board is reviewable by the Board pursuant to Section 40.1
of the Act.
(Ill. Rev. Stat.
1989,
ch.
111 1/2, par.
1040.1.)
The Act requires the Board to consider the written decision and
reasons of the county board, the record of the hearings before
the county board and the fundamental fairness of the procedures
used by the county board to reach its decision.
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par. 1040.1(a).)
PROCEEDINGS UNDER PCB 90-216
CQR filed an application for site approval of a new regional
pollution control
facility with the MCB on April
16,
1990.
Pursuant to Section 39.2(d), the MCB held a total
of fourteen
hearings over a four month period.
On October 11,
1990,
two days
before expiration of the 180-day statutory deadline for taking
final action on the application,
the MCB voted unanimously to
deny CQR’s request for site location suitability approval on the
basis that CQR did not satisfy criteria
(1) and
(3)
of Section
39.2(a)
of the Act.
At that time, the MCB did not make any
findings on criteria
(2),
(4)
,
(5),
(6),
and
(7).
On October 29,
1990, sixteen days after the statutory deadline for final action,
the MCB issued a written “Notice of Decision” which was sent to
CQR.
(R.
at C1886.)
CQR appealed the decision of the MCB denying site location
suitability approval to this Board on November 14,
1990 pursuant
to Section 40.1(a)
of the Act.
Pursuant to that same section of
the Act, the Board held a hearing on January 25,
1991 which both
parties and members of the public attended.
Following hearing,
CQR filed its brief on January 31,
1991, the MCB filed its brief
on February 11,
1991,
and CQR filed its reply brief on February
21,
1991.
Several interested parties were allowed to file amicus
curiae briefs.
The Board issued a final Opinion and Order on February 28,
1991,
remanding the matter to the MCB for clarification of its
125—508
3
vote on the remaining applicable criteria of Section 39.2(a).
CQR appealed the remand order to the Illinois Appellate Court.
The court granted the Board’s motion to dismiss the case because
the Board’s February 28, 1991’Opinion and Order was not final and
appealable.
Clean quality Resources v.
IPCB,
No.
5—91-0156, May
6,
1991.
PROCEEDINGS UNDER PCB 91-j~.
While
the PCB 90-216 appeal was before the appellate court,
the Board received a certified copy of a “Resolution” containing
the MCB~Sfinal determinations on the remaining criteria as
directec~by the Board.
On April
11,
1991, the Board issued an
order informing CQR that since the prior docket was closed and
new findings had been submitted, CQR required a new petition for
review to appeal the new findings.
The Board waived the
requirement of a filing fee for this new petition.
On May
1,
1991,
CQR filed a “Special ~nd Limited Appearance,
Petition for Review and Objection to Supplemental Proceedings”
(hereinafter “Limited Appearance”).
In its Limited Appearance,
CQR objected to the supplemental proceedings ordered by the Board
and claimed the Board was without jurisdiction or statutory
authority to order those proceedings.
In addition, CQR refused
to participate in any further proceedings except to file a formal
statement of position detailing CQR objections.
The Board held a hearing
in this matter on July 5,
1991 for
presentation of arguments on all contested criteria.
Counsel for
the MCB and members of the public attended the hearing; CQR did
not.
On July 22,
1991,
the MCB filed its post—hearing brief.
On July
5,
1991,
CQR filed a “Statement in Support of CQR’s
Special and Limited Appearance and Objection to the Supplemental
Proceedings”
(hereinafter “Support Statement”).
This filing
presents CQR’s many arguments concerning the objections to the
Board’s Orders
in this matter,
interpretations of the Act, and
the status of CQR’s application for site approval.
These
arguments will be discussed in detail below.
DISCUSSION
ANICUS CURIAE
On July 17, 1991,
the Board received a request by the City
of Centralia,
James B. Wham,
Daniel R.
Price,
and Residents for
Environmental Safety to file a “Joint Amicus Curiae Brief”
(hereinafter “Joint ACB”).
The Joint ACB requests that the Board
take administrative notice of the amicus curiae briefs filed in
PCB 90-216 in order to prevent reproducing identical pleadings.
The Board grants leave to file the Joint ACB.
The Board also
grants the amicus curiae request for administrative notice of the
amicus curiae briefs filed
in PCB 90—216.
125—509
4
The Joint ACB states:
“t)he
jurisdictional issues and the challenge to the
constitutionality of a portion of the statute
.
.
.
raised
by the parties in their Amicus Curiae Briefs filed in PCB
90—216, were not addressed by the Pollution Control Board at
the time of the remand order,
but said issues are still in
issue and are again raised herein by said parties for
consideration.”
By definition,
amicus curiae means “a friend of the court.”
Black’s Law Dictionary 75
(5th ed.
1979).
The amicus curiae are
not parties to this proceeding and cannot raise new issues or
constitutional challenges for consideration.
Zurich Insurance
Company v. Raymark Industries,
Inc.,
118 Ill.2d 23,
514 N.E.2d
150
(1987) (amicus curiae is not a party to an action and cannot
engage in motion and pleading practice as if a litigant).
The
function of amicus curiae is to advise or make suggestion to the
court.
Zurich Insurance Company v.
Ravmark Industries,
Inc.,
118
Ill.2d 23,
514 N.E.2d 150
(1987).
Therefore, the Board will only
consider the contents of the Joint ACB, and the other amicus
curiae briefs filed in PCB 90-216,
as those contents conform to
legal practice and precedent.
JURISDICTION OF THE BOARD
CQR’s Limited Appearance contends that the Board and the MCB
were “without the jurisdiction and/or statutory authority”
to,
respectively, remand this matter
(PCB 90-216)
and conduct
supplemental proceedings.
Consequently, CQR asserts that the
Board does not have jurisdiction over this present proceeding
(PCB 91—72).
In support of this statement CQR argues that the
Board cannot raise fundamental fairness issues on
it own and that
a remand is an inappropriate final action since it ignores the
statutorily established time frames.
Section 40.1(a)
states:
“In making
its
orders and determinations under this
Section, the Board shall include in its consideration
the written decision and reasons for the decision of
the county board,
.
.
.
the transcribed record of the
hearing held pursuant to subsection
(d)
of Section
39.2, and the fundamental fairness of the procedures
used by the county board
.
.
.
in reaching its
decision.”
As stated clearly in Section 40.1(a), the Board’s review of
the fundamental fairness of the proceedings below is not limited
by the pleadings of the parties.
The Board can review all
aspects of the county board’s decision-making process to
determine if
it was fundamentally fair.
In Waste Management of
Illinois,
Inc.
v. Pollution Control Board,
175 Ill.App.3d 1023,
530 N.E.2d 682
(Ill.App.
2 Dist 1988), the court described the
125—5
10
5
principles of fundamental fairness in a county board’s ruling on
a site location suitability application.
The court stated:
“In an administrative hearing,
due process
is satisfied
by procedures that are suitable for the nature of the
determination to be made and that conform to the
fundamental principles of justice.
Citation.)
*
*
*
Due process requirements are determined by balancing
the weight of the individual’s interest against
society’s interest in effective and efficient
governmental operation.
In:reviewing the record before it in PCB 90—216, the Board
discovered that the MCD lacked an understanding of what was
required to satisfy the Act and case law when taking final
action.
The confusion surrounding the vote resulted in five of
the criteria not being determined by the MCB, an unsuitable
outcome considering the nature of the proceedings.
(R.
at C3563-
3574.)
The Board,
in its February 28,
1991 Opinion and Order,
discussed the case law establishing, that the Act requires a
finding by the county board on each’ of the criteria.
For reasons
of judicial economy and efficiency,’ the appellate court has held
that the Board must review all contested criteria.
See,
E&E
Hauling
V.
IPCB,
116 Ill.App.3d 586,
451 N.E.2d 555
(Ill.App.
2
Dist.
1983), aff’d 107 Ill.2d 33,
481 N.E.2d 664
(1985); Waste
Management
v. Pollution Control Board,
175 Ill.App.3d 1023,
530
N.E.2d 682
(Ill.App.
2 Dist.
1988).
The Board applied this
reasoning to the present situation and decided that a remand to
the MCB was necessary to achieve fundamental fairness for all
participants at the county level and to allow the Board to
satisfy its obligation to review all contested criteria.
CQR argues that a remand order is an “end—run around clear
statutory and jurisdictional deadlines”.
The courts have
recognized that a remand order of the Board is an appropriate
order in
a review of a site location suitability matter.
In City
of Rockford v.
County of Winnebago,
186 Ill.App.3d
303,
542
N.E.2d 423
(Ill.App.
2 Dist.
1989),
the court stated that a
remand order “is certainly an appropriate order
.
.
.
where the
PCB determined that fundamental fairness required supplemental
proceedings.”
The Board’s remand Order was based upon the
considerations enumerated in Section 40.1 of the Act and was
intended to serve the interests of all the participants in the
site location suitability approval process
The Board again finds that it had the statutory authority to
remand this matter for supplemental proceedings to correct the
fundamental unfairness in the proceedings.
The Act and the case
law discussed establish that the Board is obligated to consider
and rule upon the fairness of the procedures below.
Where those
procedures are fundamentally unfair, the Board is empowered to
remand the matter consistent with statutory deadlines.
~,
City
of Rockford
v. County
of Winnebago,
186 Ill.App.3d
303,
542
N.E.2d 423
(Ill.App.
2 Dist.
1989); John Ash
Sr.
v.
Iroquois
125—5 11
6
County Board,
No.
3-88-0376,
non-published,
(Ill.App.3 Dist.
1989); and McHenryC~untyLandfill
v.
County of McHenry,
154
Ill.App.3d 89, 506 N.E.2d 372
(Ill.App.
2 Dist.
1987).
For these
reasons, the Board finds that it does have jurisdiction over this
matter.
SECTION 39.2(e)
—
DECISION IN WRITING
CQR’s Support Statement contends that its application has
been approved by operation of law because the NCB did not issue
its decision in written form within the statutory timeframe as
required by Section 39.2(e)
of the Act.
Ill. Rev. Stat.
1989,
ch.
111:1/2,
par.
1039.2(e).
In support of this contention, CQR
argues that there is case law on this issue which supports the
outcome of approval by operation of law.
In addition, CQR argues
that it raised this issue before the Board immediately despite
the ambiguous situation the MCB’s actions created.
Section 39.2(e)
provides:
“Decisions
of the county board
.
.
.
are to be in
writing, specifying the reasons for the decision, such
reasons to be in conformance with subsection
(a)
of
this Section.
In granting approval for a site the
county board
.
.
.
may impose such conditions as may be
reasonable and necessary.
Such decision shall be
available for public inspection at the office of the
county board.
If there is no final action by the
county board
.
.
.
within 180 days after filing of the
request for site approval the applicant may deem the
request approved.”
CQR contends that Waste Management of Illinois.
Inc.
v.
Illinois Pollution Control Board,
201 Ill.App.3d 614,
558 N.E.2d
1295
(Ill.App.
1 Dist.
1990)
(hereinafter “Waste Management
1990”)
supports its argument that its application is approved by
operation of law because the MCD did not issue a written final
decision within 180 days of filing of the application as required
by the Act.
The many distinguishing factors between the cited
case and the present matter preclude Waste Management 1990 from
being dispositive of the present matter.
The relevant facts in Waste Management 1990 are that on
appeal from the county board’s denial of site application
approval, the Board voted on and issued a final Order affirming
the denial within its 120-day statutory deadline.
Waste
Management of Illinois,
Inc.
v. Village of Bensenville, PCB 89-
28,
101 PCB 73, July 13,
1989
(Order);
102 PCB 25, August 10,
1989
(Opinion).
Over twenty five days later, the Board voted on
and issued a final Opinion containing the facts and reasoning for
the decision to affirm the county board’s denial.
The First
District Appellate Court found that the application was approved
by operation of law for two reasons.
The court concluded that
the Board Order was not
a final action within the 120-day
125—512
7
statutory deadline because
a)
it provided that the time for
filing motions for reconsideration was tolled until after the
later Opinion was issued and b)
because it did not set forth the
facts and reasons for the Board’s decision.
The court found that
these facts respectively indicated that the later issued Opinion
was the final action, reviewable by the court,
and that the
earlier issued Order circumvented the applicant’s right to review
of an administrative order since a court would not have the
information necessary for
a complete and fair review of the
decision at the time of agency action.
Therefore, the court held
that the Board did not meet its 120-day statutory deadline.
Th~court also focussed on the circumstances surrounding
adoption of the later issued Opinion in concluding that the
application was approved by operation of law.
The court noted
that the Board’s Order did not contain any information on the
basis for the Board’s decision affirming the county board’s
denial,.
However,
the later issued Opinion not only contained
the facts and reasons for the denial but also voted on the
proposed Opinion affirming the county.
The court found that the
later issued Opinion constituted a “material and substantive
modification” of the earlier Order.
Waste Management 1990,
201
Ill.App.3d 614,
558 N.E.2d 1295
(Ill.App.
1 Dist.
1990)
The facts of the present matter are different from the facts
in Waste Management 1990.
The MCB voted to deny the application
within the 180-day statutory deadline.
CQR attempts to equate
this action with the Order issued by the Board in Waste
Management 1990.
However,
the MCB’s action articulated the
statutory basis of the MCB’s determination by enumerating which
criteria of Section 39.2(a) were not met by CQR and why CQR had
not met the criteria as was required by the Act.
The Board’s
Order
in Waste Management 1990 contained no such articulation.
Another distinguishing factor
is that the MCD’S action within the
180-day statutory deadline was the final determinative action on
CQR’s application.
Unlike Waste Management 1990, the MCD took no
further action as an administrative body to determine the status
of CQR’s application after October 11,
1990.
The Notice of
Decision.issued after the 180-day deadline was not a “material
and substantive modification” of the final action taken within
the deadline.
In fact,
the Notice of the NCB’s decision
contained the exact same language as the Motion to Deny for
criteria
1 and 3 of Section 39.2(a).
R.
at C1886.
This matter
is finally distinguishable from Waste Manaaement
1990 in that the MCD’S action taken within the 180 days was
appealable to the Board as required by the Act.
The concern in
Waste Management 1990 that the right to review was circumvented
is not applicable here.
The MCB’s final action was communicated
to CQR with the reasoning for the MCD’S decision.
CQR was able
to file an informed Petition for Review and present its arguments
based on the MCB’s decision at the Board hearing.
Therefore,
the
rationale of Waste Managementl99o does not apply here and that
case is not dispositive.
12 5—513
8
CQR argues that it
is the October 29,
1990 Notice of the
MCB’s decision which constitutes final written decision of the
MCD.
The Notice states that disapproval of the application
occurred on October 11,
1990,
lists the criteria not satisfied,
and is signed by the attorney for the MCB.
R.
at C1886.
The
Notice does not differ
in substance from the Motion to Deny, and
in fact,
contains the identical language of the reasons for
denying criteria
1 and
3 as the Motion to Deny.
In response, MCB
argues in its Brief that a final action,
as required by the
statute, need only be sufficient to justify an appeal to the
Board and need not be a written decision served on the applicant
within 180 days.
The Board does not agree with the interpretation of Section
39.2(e) proposed by CQR.
CQR has combined two separate and
distinct phrases which are used in this section; “decision in
writing” and “final action”.
The distinction denotes two related
but different functions.
The separation is further emphasized by
the placement of these functions into different sentences.
Only
a “final action”
is required to fulfill the statutory time limit.
The language of Section 39.2(e)
allows a county board 180 days
after the filing of an application to consider the completeness
of the application, conduct the necessary hearings and to
consider the merits and evidence of the record.
Final action,
whether approval, disapproval or inaction, must be taken within
that 180—day period and can be made in the final hour of that
time period.
The Act does not require that circulation of the
written decision of the county board specifying the reasons for
the decision be accomplished within 180 days.
CQR’s argument that the MCB’s failure to issue a written
decision within the 180-day deadline created an unfavorable and
ambiguous situation is without merit due to the Board’s finding
above and because of evidence provided by the MCD in the form of
a copy of a fax.
The copy of the “fax” was attached as Exhibit A
to Respondent’s Brief.
The heading on the fax is “Oct 15
‘90
08:52 CENT.
ST.
ENV.
SERV.”.
The fax
is a copy of the Motion to
Deny on which the MCD voted on October 11,
1990.
The MCD states
that after
the meeting,
Counsel for the MCD gave his copy of the
Motion to the representative for CQR and requested that the copy
be faxed back to him.
The copy was faxed from CQR’s parent
company, Central States Environmental Services.2
The Motion to
Deny recites each of the criteria from Section 39.2(a)
and then
cites the reason for finding that criteria was satisfied or not
2
The first page of CQR’s Application describes Central States
Environmental Services,
Inc.
as owning more than 10
of the
capital stock of CQR and as having identical street addresses and
registered agents with CQR.
In addition,
the officers, directors
and stockholders of Central Environmental Services,
Inc.
are also
officers, directors and/or stockholders in CQR.
Rec. at C0004.
125=514
9
satisfied by CQR.3
CQR’s further claims that the absence of a written decision
within the 180-day statutory deadline created an unfavorable and
ambiguous situation because CQR believed that the application was
approved by operation of law and did not know how to have an
application approved by law formally.
The Board finds this
argument unmeritorious since despite CQR’s supposed certainty
that the application was approved by operation of
law, CQR failed
to raise any claim of the untimeliness of the MCB’s decision in
it’s Petition for Review.
In fact CQR did not raise this issue
until
tl,iree months after filing the petition for review and four
months after the MCB’s decision.
The facts of this matter clearly indicate that the MCD took
final action denying the request for site approval within 180
days of the filing of the application.
Subsequently, CQR was
apprised in writing of the voted decision and of the reasoning
for the decision within four days after the MCD took final
action.
Unlike the situation in Waste Management 1990, the
written decision did not alter the MCB’s final action and the
written decision was issued
in a timely manner for purposes of
review.
Consequently, CQR’s ability and right to petition for
review were not impaired by the issuance of the written Notice of
Decision after the 180-day deadline.
For the foregoing reasons,
the Board finds that the application was not approved by
operation of law.
As a final note,
the Board will address CQR’s assertions
that CQR filed a Petition for Review with this Board in November
of 1990 challenging the October 29,
1990,
‘decision’ of the NCB,
not challenging the fundamental fairness of the proceedings, and
which “should in no way be construed as an acceptance of the
MCB”s belated action.”
In actuality CQR’s Petition for Review
states that CQR “requests a hearing to contest the decision of
the Marion County Board dated October 11,
1990.
The Petitioner
believes that
.
.
.
the Marion County Board’s decision is
against the manifest weight of the evidence admitted during the
siting hearing and is fundamentally unfair.”
Contrary to CQR’s
assertion,
its original Petition for Review challenged not only
the procedures followed by the MCB, but also the substance of the
NCB’s denial of the application.
3
In addition,
four affidavits,
two from attorneys,
attached to
the Joint ACB attest to the presence of CQR representative
Douglas Shook outside of the October 11,
1990 meeting of the MCB.
A newspaper photo from Tuesday, July 17,
1990,
attached to an
affidavit,
identifies Douglas Shook as seated next to the
attorney for CQR at the CQR table during the hearings before the
MCB.
125—515
I0
FUNDAMENTAL FAIRNESS
CQR’s Support Statement contends that the remand order has
now produced fundamental unfairness in the proceedings by
reopening the matter before the MCB and circumventing the
statutory time limits.
In support of its first contention CQR
argues that the MCD’S vote on remand is fundamentally unfair
because elections were held during the pendancy of the Board’s
review.
Consequently, five newly elected MCB members voted on
remand.
CQR contends that these members are ineligible to vote
on the remaining criteria because they did not have an
“opportunity to assess the credibility of a witness and perceive
their d~xneanorwhile testifying”.
In addition, CQR maintains
that this case was pivotal to the elections with some new members
running “principally on the platform of opposition to the
proposed facility.”
The Board notes that
it
is not individuals but the
governmental body that
is making the decision.
Also,
the record
for the proceedings was available to all members, including the
newly elected members.
City of Rockford v.
County of Winnebago,
186 Ill.App.3d 303,
542 N.E.2d 523
(Ill.App.
2d Dist.
1989).
Finally, the courts have stated that an administrative official
who has taken a public position or expressed strong views on an
issue before the administrative agency does not overcome the
presumption that the official
is objective and capable of fairly
j’udging a particular controversy.
A.R.F.
Landfill v. Pollution
Control Board,
174 Ill.App.3d 82,
528 N.E.2d 390
(Ill.App.
2
Dist.
1988);
Waste Management of Illinois.
Inc.
v. Pollution
Control Board,
175 Ill.App.3d 1023,
530 N.E.2d 682
(Ill.App.
2
Dist.
1988).
CQR also argues that the Board introduced fundamental
Linfairness by not considering those criteria not specifically
decided against by the MCB as approved by the NCB.
The MCB
transcripts in PCB 90-216 reveal a great deal
of confusion
surrounding the county board’s duty to vote on all criteria.
R.
at C3566—3576.
In addition, the transcript does not indicate
which of the criteria would have received a yea or nay vote from
the MCB.
The Board,
under these circumstances, could not assume
which way the MCD would have voted on the criteria.
The Board has already discussed the appropriateness and
timeliness of a remand order in site location suitability
matters.
(Page
5.)
Therefore, for the reasons discussed above,
the Board rejects CQR’s claim of fundamental unfairness.
STATUTORY CRITERIA
Section 39.2 of the Act presently outlines nine criteria for
site location suitability, each of which must be satisfied (if
applicable)
if site approval
is to be granted.
Ill. Rev.
Stat.
125—516
11
1989,
ch.
111 1/2, par.
1039.2.
In establishing each of the
criteria, the applicant’s burden of proof before the local
authority is the preponderance of the evidence standard.
Industrial Salvage v.
County of Marion, PCB 83—173,
59 PCB 233,
235, 236, August
2,
1984.
On appeal, the Board must review each
of the challenged criteria based upon the manifest weight of the
evidence standard.
See, Waste Management of Illinois,
Inc.
v.
IPCB,
122 Ill.App.3d 639,
461
N.E.2d 542,
(Ill.App.
3 Dist.
1984).
This means that the Board must affirm the decision of the
local governing body unless that decision is clearly contrary to
the manifest weight of the evidence, regardless of whether the
local board might have reasonably reached a different conclusion.
~
E&E’.ilauling v,
IPCB,
116 Ill.App.3d 586,
451 N.E.2d 555
(Ill.App.
2 Dist.
1983),
aff’d 107 Ill.2d 33, 481 N.E.2d 664
(1985); City of Rockford
v.
IPCB and Frink’s Industrial Waste,
125 Ill.App.3d 384,
465 N.E.2d 996 (Ill.App.
2 Dist.
1984);
Steinberg v. Petta,
139 Ill.App.3d 503, 487 N.E.2d 1064
(Ill.App.l Dist.
1985);
Willowbrook Motel v.
PCB,
1435 Ill.App.2d
343, 491 N.E.2d 1032
‘Ill.App.
1 Dist.
1985);
Fairview Area Task
Force v. Village of Fairview,
PCB 89-33, June 22,
1989.
The Board has before it two determinations from the Marion
County Board;
one from October 11,
1991 deciding criteria
1 and 3
and supplying reasons for the decision, and two, from March 26,
1991 with a vote on each of the applicable criteria and no
supporting reasons.
The Board notes that its remand order of
February 28,
1991 ordered the MCD to make final determinations
only on the remaining applicable criteria of Section 39.2(a).
CQR has not specifically contested the MCD decision on criteria
2,
5,
6 and 7,4 although its Limited Appearance does refer to•
itself as a Petition for Review to preserve CQR’s rights.
The
Board will review the MCD’S decision and reasons for decision on
criteria
1 and 3.
Regarding the MCB’s decision for criteria
2,
5,
6,
and 7, the Board will also review these but notes that CQR
has failed to argue the merits of the MCB’s decision on these
criteria.
The county board record
is highly developed due to the
active participation of the applicant,
the MCB,
and several
individuals and groups opposed to the siting of the facility.
These individuals and groups will be referred to collectively as
the “opponents” for the remainder of this Opinion,
unless
qualification is necessary.
The MCD, CQR, and the opponents all
presented witnesses to support their positions.
Most of these
witnesses were cross—examined by at least two attorneys and
sometimes up to four.
The Board hearing in PCB 90-216 is likewise well developed
due to the participation of the MCD, CQR,
and the opponents.
The
Board hearing in the present docket, PCB 91-72,
is much less
informative because CQR did not appear.
~
The MCD found
in favor of
CQPL on criterion 4.
125—517
12
Criterion
1:
The facility
is necessary to accommodate the waste
needs of the area it is intended to serve.
The MCB decided against CQR as to criterion
1.
The reason
stated in the Motion to Deny was that,
“Marion County produces’,only enough hazardous waste of
all types
~heavy and dilute concentrations) to operate
a facility like CQR’s proposed facility for ten days.
The great majority of the waste to be imported from
outside of Marion County from a four—state area.”
Putsuant to Section 39.2(a) (1)
of the Act, the MCB is
required to review CQR’s application to ensure that the proposed
facility is necessary to accommodate the waste needs of the area
it is intended to serve.
It is the applicant who defines the
intended area to be served.
Metropolitan Waste Systems,
Inc..
Spicer,
Inc., et al.
v.
IPCB,
558 N.E.2d 785
(Ill.App.
3 Dist.
1990)
CQR’s Application states that
“The area intended to be served by the facility
is a
regional area and not a county or multi—county area.
*
*
*
The need for this facility is not an independent
need for Marion County alone, but a regional need for
Southern Illinois..
*
*
*
There are no commercial
facilities
in Southern Illinois that provide the same
or similar services as proposed by CQR.”
R. at C000lO—C00012.
The MCD maintains that no intended service area was ever
clearly defined.
In support of its argument, MCD states that the
intended service area was described during the MCB hearings as
“the bottom sixty four counties”,
and by one witness as having a
market area of within a 150 to 200 mile radius which includes
four states.
R.
at C2938 and C2120-2l21.
Also,
a Needs
Assessment for Clean Quality Resources,
Inc.,
prepared by an
environmental engineering firm,
states that no similar facilities
operate south of Peoria,
Illinois.
R.
at C3674.
This report
also refers to a list of counties contained in Appendix A as
being the
‘downstate Illinois service area”
.
R. at C3687.
CQR’s application states that the facility will treat the
following wastewaters; corrosive wastewaters, metal contaminated
wastewaters, oily and petroleum wastewaters, reactive
wastewaters, wastewaters contaminated with solvents, wastewaters
contaminated with organics, and landfill leachates.
R. at
C00013.
CQR presented the testimony of Greg Kugler, who prepared
the Needs Assessment Report for CQR (CQR Exhibit 13), in support
of the need for the proposed facility
in the intended service
area.
Mr. Kugler testified that there is not a treatment
facility capable of handling the wastewater streams proposed in
125—5 18
13
the intended service area.
He also testified that a significant
portion of the facility’s capacity would be necessary when new
regulations were adopted that required greater remedial efforts
and treatment of more types of contaminated waters.
R. at C2921—
C2946.
The opponents cross—examined Mr. Kugler’s testimony and
Needs Assessments Report extensively.
R. at C2944-3024.
Specifically, the opponents questioned Mr. Kugler’s direct
testimony on needs ‘based on future regulations, and the actual
current needs of the intended service area.
R.
at C2963 and
C2971-C2972.
In addition,
one of the opponents, Residents for
Environ~ental Safety, presented its own witness, Mr. John
Thompson who testified that the content and requirements of the
proposed or pending regulations indicated that there would not be
a future need for the proposed facility.
R. at C3174-3180.
Despite the varied phrases used to describe the intended
service area,
it
is clear from CQR’s application and from the
import of the descriptive phrases that the service area is
greater than Marion County alone.
The MCD does not have the
authority to restrict the intended service area to Marion County
or to reject the intended service area as too big.
Metropolitan
Waste Systems,
Inc.,
Spicer,
Inc.,
et al.
v.
IPCB,
558 N.E.2d 785
(Ill.App.
3 Dist.
1990).
Conflicting evidence was presented at hearing.
However, the
MCB’s decision
is not against the manifest weight of the evidence
merely because the Board could draw different inferences and
conclusions from this conflicting testimony.
Steinberg v.
Petta,
139 Ill.App.3d 503,
508,
487 N.E.2d 1064
(Ill.App.1 Dist.
1985).
Sufficient evidence exists
in the record for the MCB to conclude
that the need criteria was not satisfied by CQR.
Therefore,
the
Board finds that the MCB’s decision that CQR did not prove that
there was a need for its facility is not against the manifest
weight of the evidence.
The Board affirms the decision of the
Marion County Board as to Criterion
1 of Section 39.2(a) of the
Act.
Criterion
3:
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.
The MCD decided against CQR as to criterion 3.
The reason
stated in the Motion to Deny was that,
“Facility will cause property values throughout Marion
County to decline, on Walnut Hill Road to decline as
much as 50,
and property immediately adjacent to the
site will have virtually no value at all.”
Criteria
3 does not require that the effects of the proposed
facility on the character and value of the surrounding property
be eliminated but that those effects be minimized.
Clutts v.
125—5 19
14
Beasley,
185 Ill.App.3d
543,
541 N.E.2d 844
(Ill.
App.
5 Dist.
1989).
It is the duty of the applicant to demonstrate that it
will take reasonably feasible steps to minimize incompatibility
and negative effects on the surrounding area.
Waste Management
of Illinois, Inc.
v.
PCB,
123 Ill.App.3d
1075,
463 N.E.2d 969
(Ill.App.
2 Dist.
1984)
The facility proposed by CQR could handle low level
hazardous waste.
The treatment processes are enclosed and the
building is to have exterior landscaping, curbing,
paved
entrances and a lawn separating the building from the road.
At
hearing~,the MCD heard the testimony of CQR’s witness, John
Stoddard, and the opponents witness, Virgil T. Bailey, both
involved in real estate.
Mr. Stoddard testified that the
character of the surrounding area was agricultural with a
definite trend toward light industry.
R. at C2603—2608.
Mr.
Bailey testified that the character of the surrounding area was
for many years residential.
R.
at C3045.
The MCD also heard
from several residents of the immediate area surrounding the
proposed site who believed the proposed facility would be
incompatible with their area.
R.
at C3142,
C3065,
and C3087.
Mr.
Stoddard and Mr.
Bailey also testified to the effect on
the value of the surrounding property.
Mr. Stoddard testified
that the property values would remain unchanged or could be
increased due to the improvements to the road proposed by CQR
(C2612—2616).
Mr. Dailey testified that a facility handling any
type of hazardous waste would substantially decrease the value of
the surrounding property.
R.
at C3044, C3048.
The MCD also
heard from
a would-have-been-resident of the immediate area
surrounding the proposed site who forfeited his earnest money
upon learning that the facility was being sited near his future
home.
R. at C306l-3064.
The reason cited by the MCB for finding against CQR on
criteria
3
is an improper basis for determining that an applicant
has failed to meet this criteria.
CQR is only required to take
reasonable efforts to minimize the effect of the facility on the
values of the surrounding property.
Therefore,
for the MCD to
base its decision solely on evidence that the facility will
affect property values is improper.
Clutts v Beasley,
185
Ili.App.3d 543,
541 N.E.2d 844
(Ill. App.
5 Dist.
1989).
After reviewing the record, the Board finds that CQR
presented sufficient evidence to demonstrate that its facility
was located to minimize incompatibility with the surrounding
area.
The facility will be housed in a new building complete
with landscaping.
Unlike a landfill, there is no concern here
for unsightliness or vertical changes in the landscape.
Therefore, because the record establishes that the facility will
minimize both incompatibility with and the effect on the value of
the surrounding property, the Board finds that the decision of
the Marion County Board
as to criterion
3 of Section 39.2(a)
of
the Act is against the manifest weight of the evidence.
125—520
15
Criterion
2:
The facility is so designed,
located and proposed
to be operated that the public health,
safety and welfare will be
protected.
Criterion 5:
The plan of operation for the facility is designed
to minimize the danger to the surrounding area from fire, spills.
or other operational accidents.
Criterion
6:
The traffic patterns to or from the facility are so
designed as to minimize the impact on existi~tgtraffic flows.
Criterion 7:
If the facility will be treating, storing or
disposir’ig of hazardous waste,
an emergency response plan exists
for the’facility which includes notification, containment and
evacuation procedures to be used in case of an accidental
release.
The Board’s review concerning criteria
2 revealed that CQR
presented several witnesses that testified on topics relating to
the protection of the public health,
safety and welfare.
Engineers Marvin Jenkins and Jack Bass discussed the complex
measures proposed for drainage of the effluent from the facility.
R. at C2721—C2734 and C2735—C2757 respectively.
CQR also
presented the testimony of Tim Holcomb,
a professional engineer,
concerning the soil and foundation characteristics of the
proposed site.
R. at C2555.
All were cross-examined.
The opponents also presented several witnesses on this
criteria.
John Thompson, executive director of a non—profit
environmental group,
and Shany Zasnaghlun,
an engineer with the
Army Corp.
of Engineers, discussed their concerns with the
indefiniteness of certain aspects of CQR’s proposed facility.
R.
at C3163-3172 and C3225-C3239.
Dr. Ashok Patel,
practicing in
occupational and environmental health, and Dr.
Ed Pulver,
a
biologist, testified on the effects of contaminants if released
into the environment.
R.
at C3098—C31l8 and C3293—C3299.
As for criteria
5,
James Huff,
a consulting engineer and
witness for the MCB,
stated his concerns about inadequacies in
CQR’s plans to minimize the danger to the surrounding area.
R.
at C2210, C2224,
C2229, C2255-2262.
John Thompson also addressed
certain perceived failures to minimize danger.
R.
at C3170.
CQR presented the testimony of its President David Pritchard
and Vice-President Phil Sutton on the design of traffic patterns
pursuant to criteria
6 and the existence of an emergency plan
required by criteria
7.
Both of these witnesses were extensively
cross—examined to the point where the MCB could reasonably have
doubted the dependability of certain of their information.
R. at
C2370—C2377, C2453—C2460, and C2492—C2494.
CQR did not argue the merits of the MCB’s determinations on
criteria
2,
5,
6,
and 7.
The record establishes that the MCB had
before
it sufficient evidence to decide that CQR failed to meet
125—521
16
its burden on these criteria.
The Board finds that the Marion
County Board’s determinations on criteria
2,
5,
6, and 7 of
Section 39.2 of the Act are not against the manifest weight of
the evidence.
CONCLUSION
For the above stated reasons, the Board affirms the decision
of the Marion County Board denying approval to Clean Quality
Resources,
Inc.
for a new regional pollution control facility on
the bases of the statutory requirements of Section 39.2(a) (1),
(2),
(5),
(6)
and
(7)
of the Act.
The Board reverses the Marion
County ~oard on Criterion 3.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby affirms the decision of the Marion County
Board denying site location suitability approval for a new
regional pollution control facility.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member
3.
D.
Dumelle concurs.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert4~y,,~hatthe above~pinionand Order was
adopted on the
~
—
day of
~
,
1991,
by a
vote of
•7-ci)
.
~
Dorothy N. Gu)~n, C1e~k
‘
Illinois Pol~ütionControl Board
125—522
