ILLINOIS POLLUTION CONTROL BOARD
September 26,
1991
CITIZENS FOR CONTROLLED LANDFILLS
)
and YMCA OF SOUTHWEST ILLINOIS,
)
Petitioners,
PCB 91—89 and 91—90
v.
)
(consolidated)
)
(Landfill Siting)
LAIDLAW WASTE SYSTEMS,
INC.
)
and the ST. CLAIR COUNTY BOARD,
)
Respondents.
DANIEL
WOLFORD
APPEARED
ON
BEHALF
OF
PETITIONER
CITIZENS
FOR
CONTROLLED LANDFILLS;
WILLIAM GAVIN APPEARED ON BEHALF OF PETITIONER YMCA OF SOUTHWEST
ILLINOIS;
BRIAN KONZEN, LEUDERS, ROBERTSON AND KONZEN, APPEARED ON BEHALF OF
RESPONDENT LAIDLAW WASTE SYSTEMS,
INC.; and
DENNIS HATCH, ASSISTANT STATES ATTORNEY APPEARED ON BEHALF OF THE
ST. CLAIR COUNTY BOARD.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
This matter is before the Board on a third party appeal filed
on Nay 31,
1991 by Citizens for Controlled Landfills
(“CCL”)
and
the YMCA of Southwest Illinois
(“YMCA”).
Petitioners contest the
decision
of
the
St.
Clair
County ‘Board approving
expansion
of
Laidlaw Waste Systems,
Inc.
(“Laidlaw”)
landfill facility located
just
outside
of
Bellville,
Illinois.
This
appeal
is
brought
pursuant to Section 40.1 of the Illinois Environmental Protection
Act
(“Act”)
(Ill.
Rev. Stat.
1989,
par.
1040.1 et.
seq.).
Petitioners
seek
reversal
of
the
County
decision
for the
following reasons:
1) the application submitted by Laidlaw did not
comport with the applicable local ordinance and was therefore void;
2)
because the application was allegedly incomplete, the hearings
held by the County were fundamentally unfair; and
3) the findings
of
the
County
as
they
pertain
to the
requirements
of
Section
39.2a(l),
(2),
and
(3)
were
against
the manifest weight
of the
evidence and therefore require reversal.
For the reasons contained
herein,
we affirm the decision of the County.
FACTS!PROCEDURAL HISTORY
Laidlaw originally applied for a permit at this site in 1977.
A permit was granted and Laidlaw operated the landfill for a short
126—289
period and then sold it.
In 1983, Laidlaw reacquired the property
and has been responsible for the site to this date.
In November of 1988, Scott Schreiber,
a regional engineer for
the
company,
determined
that
Laidlaw had
surpassed the
height
allowed under its operating permit.
(Tr. at 77-79).
The company
had stacked its landfill to
a
height of 586 feet over a
30-acre
area rather than the 575 feet allowed.
Over this 30-acre area, the
trash had started to
settle and ponds had formed on top of the
landfill.
Because
of
these
problems,
the company notified
St.
Clair County, in addition to the Illinois Environmental Protection
Agency
(“Agency”),
and
discussions
were
held
to
rectify
the
situation.
As
a
result
of
those
discussions,
Laidlaw
submitted
an
app3Jcation to expand its Belleville site to the St. Clair County
Board
on November
12,
1990.
Public hearings were held
by
the
County on February 19, 20 and March 13 of 1991.
On April 29, 1991,
the
St.
Clair
County
Board
approved
Laidlaw’s
application
for
expansion.
On May 31,
1991, petitioners sought appeal before the
Board.
In that regard,
a hearing was held on July 29,
1991.
STATUTORY CRITERIA
Section 39.2 of the Act presently outlines nine criteria for
site suitability, each of which must be satisfied
(if applicable)
if
site approval
is to be granted.
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 PCB 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,
(Third District,
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 Board might have reasonably
reached a different conclusion.
$~
E
&
E Hauling
v.
IPCB,
116
Ill.App.3d 586
(2nd District 1983);
City of Rockford
V.
IPCB and
Frink’s Industrial Waste,
125 Ill.App.3d 384
(2nd District 1984);
Steinberg
v.
Petta,
139
I1l.App.3d
503
(1st
District
1985);
Willowbrook Motel v. PCB, 135 Ill.App.3d 343
(1st District 1985);
Fairview Area Citizens Task Force
v. Village of Fairview, PCB 89-
33, June 22,
1989.
FUNDAMENTAL FAIRNESS
The
YMCA argues
that
St.
Clair
County
erred
in
approving
Laidlaw’s application because it did not fulfill the requirements
of the ordinance governing local siting applications.
Accordingly,
the YMCA asserts that the application is void.
In the alternative,
the
YMCA alleges
that
the
lack
of
specific
information
within
126—290
3
Laidlaw’s application denied the public the opportunity to address
all of the issues and was therefore fundamentally unfair.
In response,
the County maintains that the Board
is without
the statutory authority to compel
enforcement of
a
local county
ordinance.
Instead,
the County submits that our scope of review
in
relation
to
the
local
hearings
is
limited
to
fundamental
fairness.
Nothing in Section 39.2 or
40 of the Act enables the
Board to enforce a local statute.
In fact, Section 39.2(g) states:
•
.
.
The siting
approval,
procedures,
criteria
and appeal procedures provided for in this Act
for new regional pollution control facilities
shall
be the exclusive siting procedures and
rules
and
appeal
procedures
for
facilities
subject to such procedures.
Local
zoning or
other local land use requirements shall not be
applicable to such siting decisions...
Ill.
Rev.
Stat.
1989,
ch.
111—1/2 par.
1039.2(g).
Section 40.1 mandates that:
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
or the governing body of the municipality, 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 or the governing body
of the municipality
in reaching its decision.
Ill. Rev.
Stat.
1989,
ch.
111—1/2 par. 1041.1
We note that the YMCA is asserting two propositions here, the
first of which is that the application is void.
St. Clair County’s
ordinance requires that the applicant list specific information
concerning various aspects of the proposed landfill operation.
It
then gives the Clerk the discretion to accept the filing or reject
it with stated reasons.
In the instant case,
the Clerk accepted
the application and issued Laidlaw a certificate to that effect.
(C632-33).
In arguing that Laidlaw’s petition was void and should
therefore not have been accepted by the County, the YMCA does not
state a fundamental fairness issue.
The YMCA does not assert that
the ordinance is inherently unfair; nor does it allege the ordiance
was applied unfairly.
Instead,
the YMCA merely argues that the
application is void without including what the ramifications would
be.
Because we agree with the County that our analysis is limited
to whether the proceeding
in
St.
Clair County was fundamentally
fair,
we will not rule on the alleged omissions contained within
126—29 1
4
Laidlaw’s application.
The Board is a creature of statute and is
therefore limited by its enabling provisions.
Accordingly,
the
only
relevant
inquiry
for
our
purposes
is
whether
Laidlaw’s
application met the requisites of 39.2(a) of the Act.
Upon review
of the company’s petition, we find that ample documentation exists
for every applicable criterion under the statute.
The second argument put forth by the YMCA submits that these
alleged deficiencies in Laidlaw’s application impacted the hearings
so as to be fundamentally unfair.
The
absence
of
the
required
information
deprived
the
County
Board
and
the
public,
including opponents of the application, a fair
opportunity to prepare for the public hearing
on the application, and further prevented the
possibility
for
opponents
to
fully
prepare
adequate written comment on the application.
(Pet.
Br.
at 4).
While this assertion raises a legitimate fundamental fairness
issue,
the Board finds
it to be factually unconvincing.
Laidlaw
complied with all the requirements under the Act.
Adequate notice
was given and a wealth of substantive information was prefiled with
St.
Clair County.
Three public hearings were held
(February
19,
20 and March 13) and anyone who so desired could cross—examine any
of
those
witnesses.
Subsequent
to the
last hearing,
a
30-day
written
comment
period
was
established.
Many
citizens
took
advantage of the hearings and the comment period to express their
concerns.
In short,
the Board
finds that the hearing procedure
undertaken by
St.
Clair County was fundamentally fair in that it
afforded all interested parties due process.
SECTION 39.2 CRITERIA
The YMCA asserts that the decision of the
St.
Clair County
Board should be reversed because “Laidlaw failed to prove the first
listed criterion because
it did not establish that the proposed
expansion is reasonably necessary to accommodate the waste needs
of the area in which it is located”.
(Emphasis added).
(Pet.
Br.
at
6).
In making
this argument,
YMCA misstates the criterion.
Section 39(a) (1)
states that the criterion is met if “the facility
is necessary
to
accommodate the waste needs
of the
area
it
is
intended to serve.”
(Emphasis added).
Ill.
Rev.
Stat.
1989
ch.
111-1/2
par.
l039(a)(l).
The YMCA states that approximately
50
percent
of the waste delivered to the facility
is generated
in
Missouri, and that Missouri has adequate waste facilities in place.
The YMCA also notes
the testimony of Mr.
Schrieber that Laidlaw
intends
to
service
the
needs
of
St.
Clair
County
and
its
surrounding communities.
Mr. Schrieber’s statements indicate that
Laidlaw
expects
the
largest
amount
of
its
business
will
be
126—292
5
generated
in
St.
Clair and Madison Counties.
(Tr.
at
36-37).
Accordingly,
the
YMCA
deduces
that
Laidlaw
will
drastically
restrict
its acceptance of non-Illinois waste
at
its Belleville
site and that site’s lifespan will be greatly increased.
(Pet. Br.
at 6).
In short, the YMCA argues that “Laidlaw’s presentation of
incomplete and inconsistent evidence concerning the waste disposal
needs
of
St.
Clair,
Madison
and
Monroe
Counties
presented
an
inaccurate picture.. .which
is
insufficient
as
a matter of
law.”
(Pet.
Br. at 7).
According
to
the
YMCA,
Exhibit
16,
an
Agency
chart,
demonstrates that
St. Clair County has a landfill capacit~of
13
years.
In addition the YMCA notes that the Milan Landfill
,
also
located
in
St.
Clair County,
was recently granted
a
31
million
cubic yard expansion, the result of which would give the county an
approximate 41 year future landfill capacity.
(Pet.
Br. at 7).
Laidlaw
disagrees
and
claims
that
necessity
need
not
be
absolute, but only expedient or reasonable.
E
& E Hauling v.
PCB,
116 Ill.App.3d 586
(1983);
Waste Management of Illinois
v.
PCB,
123 Ill.App.3d 1075 (1984);
Clutts v.
Beaslev,
185 Ill.App.3d 543
(5th Dist.
1989).
In that
regard,
Laidlaw argues that the
St.
Clair County disposed of
1,112,636 tons
of solid waste in 1990,
only 23
of which was imported into Illinois
(Ex.
16;
Pet.
Br.
at
5).
The company also cites market demands and argues that more
competition
within
the
area
stabilizes
prices
and
discourages
improper disposal.
Laidlaw alleges that competition among sites
is
necessary because recent
state
regulations
are
forcing many
sites
to
close,
and
because only three
large
corporations
own
almost all the remaining disposal capacity
in the
large service
area.
The
company
also
states
that
the
subject
site
currently
handles 30
of the wastestream in the service area.
Moreover, 50
of
the
waste
accepted
by
the current
operation
is
special
and
industrial waste which requires ancillary permits.
Laidlaw asserts
that the neighboring landfills are not equipped to deal with this
type of waste
(Resp.
Br. at 6).
Furthermore, Laidlaw disputes the
estimates
of
the YMCA and alleges that need is demonstrated by
predictions
that
regional
disposal
capacity
will
be
exhausted
sometime after the year 2000.
Indeed, the company maintains that
the
solid
waste
management
plan
adopted
by
St.
Clair
County
predicts even less disposal capacity.
(Resp.
Br. at 7).
(Cl038).
Given
the
varying
estimates
of
landfill
capacity
in
conjunction with other reasons associated with need, we are unable
to find the County’s decision to be against the manifest weight of
the evidence.
Waste Management of Illinois v. PCB,
122 Ill.App.3d
1At the time
of
hearing,
it was unclear as
to whether the
Milan Landfill had secured Agency approval.
126—29 3
6
(1984).
The appellate courts have repeatedly held that whether a
facility
is necessary to
accommodate the
area’s
needs
does
not
require
a
showing of absolute necessity;
nor should the need be
determined
by
application
of
an
arbitrary
standard
of
life
expectancy
of
existing disposal
capacities.
Tate
v.
PCB,
188
Ill.App.3d 974
(1989); Fairview Area Citizens Taskforce v. PCB, 144
Ill.Dec.
659
(1990)
Based upon the evidence received at hearing, the County Board
could
have
reasonably
concluded
that
expansion
of
Laidlaw’s
Bellville facility was necessary to accommodate the waste needs of
the area
it
is
intended to serve.
The County Board could
have
based its decision on landfill capacity in general.
Moreover, its
analysis may have focused on the large
amount. of
industrial
and
special waste taken in by the facility.
Finally, the County Board
may have accepted
the company’s expert testimony
in
regards
to
market demands,
effects
on prices and the potential
for illegal
dumping.
In any event,
we find that ample evidence exists within
the record to
support the County Board’s decision.
Because our
scope
of review
is
limited to the manifest weight
standard,
we
affirm
the
County
Board’s
determination
on
this
criterion.
Fairview v.
PCB,
198 Ill.App.3d 541
(1990).
The YMCA also challenges the decision of the St. Clair County
Board
in regard
to
the
second
and
third
criteria.
The
YMCA
maintains that the County Board erred in its decision because the
proposed expansion
is
not
designed to be operated
so
that
the
public welfare will be protected, nor will its operation be located
to minimize incompatibility with the character of the surrounding
area.
In support of these contentions, the YMCA notes that surface
water drainage is already a problem, and expansion of the facility
will aggravate the situation.
The YMCA property is adjacent to the
site,
and on that property is
a lake used by thousands of people
for various activities throughout the year.
The YMCA alleges that
even though Laidlaw realizes that water drainage will be a problem,
the company does not have a plan to deal with the excess water
flow.
(Pet.
Br.
at
9).
While Laidlaw admits that the surface water drainage issue is
not entirely settled,
the company maintains that the water issue
is only one aspect of criterion two.
Testimony revealed that the
design of the proposed expansion calls for a composite, three-foot
thick clay
liner,
a
60-mm HDPE liner and
a
leachate collection
system
in
sand-lined
trenches
above
that
liner.
The
company
further contends that a six—foot thick cap on the final cover of
the
site will
prevent water
from
entering the closed
site
and
better
control
run—off and
erosion.
Hydrogeologist Rod Blaese
testified that there
is no avenue for contaminants to travel from
the site to public or private water supplies, even in the event of
a total liner failure.
(Tr.
at 291—94).
126—294
7
Laidlaw
admittedly
filed
its
application
because
it
had
exceeded the scope of its operating permit.
The company failed to
construct
a proper
slope and went beyond
its height
limitation,
thereby forming ponds
on top of the landfill.
These ponds will
almost certainly cause additional infiltration of water,
thereby
generating more leachate.
(Tr.
at 23).
Mr. Schrieber testified
that there appear to be only two ways of
solving this problem.
The first
is to scrape away the buried trash until
a slope which
is steep enough is achieved in order to establish water drainage.
The other alternative is to build from the top of the landfill to
accomplish
the
same
objective.
(Tr.
at
24).
The
unrebutted
testimony
indicates that cutting away
old,
decomposing garbage
invites
a
wealth
of
problems.
Obnoxious
odors
are
liberated,
fugitive
emissions
of
compounds
are
released
and
spontaneous
combustion of newly exposed refuse
is of great concern.
(Tr.
at
24)
In terms of surface drainage, Mr. Schrieber testified that it
is impractical to design a plan without knowing the grade.
(Tr. at
32).
However, the company did promise to seek one of two options.
The
first
option
would
be
securing
an
easement
or
purchasing
neighboring property.
The second, and more concrete alternative
the company proposed, was to move some buildings on site, construct
earthen berms
in addition to trenches, culverts and sedimentation
ponds so that the only discharge would be water
itself.
(Tr.
at
371-78).
The company stressed that this water is not contaminated
leachate, but rather precipitation.
We note that surface water run—off, while not desirable,
is
far
less intrusive than scraping eleven feet of trash over
a 30-
acre area.
We also note that any final plan by Laidlaw, including
issues of water drainage, will have to be permitted by the Agency
and therefore comport with the current landfill regulations adopted
by this Board in 1990.
Finally, although the YMCA alleged a great
deal of harm by precipitation run-off draining into its lake, the
organization failed to supply the County Board with any evidence
of harm
in relation
to water drainage.
Analyzed
in
its entire
context, we find that the County Board could reasonably conclude
that the public welfare would
be protected by expansion of this
landfill
and
its decision
is therefore not against the manifest
weight
of the evidence.
Thus we affirm the County Board as to
criterion two.
With respect to criterion three,
we do not believe that the
County Board determination
is against the manifest weight of the
evidence.
~
Fairview,
144
Ill.Dec.
659.
Section
32.2(a)(3)
states:
“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 current site
is adjacent to one landfill and a mile away from another.
Further,
the site
is rural and characterized by depleted, mined-out land.
There
are very
few
residences
nearby.
While
there
were
some
126—295
8
complaints of
odors,
muddy roads and negligent drivers,
none of
these
complaints were directly attributed to Laidlaw.
Even so,
Laidlaw has pledged to install a tire washer to alleviate the muddy
roads
and has vowed
to pick up any windblown trash within a 24-
hour period.
(Tr.
at 124-25, 208).
Moreover,
an independent realtor hired by the County filed a
timely
comment
which
stated
that
no
impact
should
result
to
surrounding real estate values absent environmental contamination.
(C1450—51).
In regard to criterion three,
the Clutts court held
that:
.As
to property values and better places,
the
law
requires
only
that
the
location
minimize
incompatibility
and
effect
on
property
values,
not
guarantee
that
no
fluctuation will result; nor does the statute
require the facility to be built in the “best”
place,
and
rightly
so
for
that
is
so
subjective
as to
give
no guidance at all
to
those who must decide these issues.
Clutts,
133 Ill.Dec.
at 635.
Given
the evidence
in the record
in addition
to the applicable
caselaw, we find that it is not against the manifest weight of the
evidence for the County Board to determine that expansion of this
landfill
is
located
so
as
to minimize
incompatibility with the
character of the surrounding area.
As such,
we affirm the County
Board as to the third criterion.
The
YMCA
only
alleged
deficiencies
with
respect
to
the
application and criteria one,
two,
and three.
The CCL however,
seems to allege deficiencies in regards to every criterion except
four,
seven,
and nine,
the latter two of which are inapplicable.
The petition filed by CCL consists mainly of conclusions without
supporting documentation
or
argument.
For
example,
CCL alleges
that the proposed expansion is inconsistent with the Solid Waste
Management Plan of St. Clair County, yet no citation to the record
is
given.
The
St.
Clair County
Board
approved the solid waste
management plan and CCL submits nothing which indicates that the
County Board acted inconsistently with that plan by approving this
landfill
expansion.
In
any
event,
CCL
does
not
allege
any
reversible grounds in its petition to review;
it simply states it
did not like the reasoning of the County Board.
Accordingly,
we
affirm the County Board’s decisions as to the contestable criteria
contained within Section 39.2(a).
Finally, both CCL and the YMCA state that expansion should be
reversed due to Laidlaw’s past operating history.
While Laidlaw’s
operation
thus
far
may
have
been
less
than
ideal,
its
past
126—296
9
performance, and the consideration thereof,
is discretionary by the
County Board.
Section 39.2(a)
states:
.The
county
board.
.
.may
also
consider
as
evidence the previous operating experience and
past record
of convictions on
admissions
of
violations by the applicant.
.
.when considering
criteria
(ii)
and
(v) under this section.
We do not know if the County Board considered the testimony in this
regard.
Because such considerations are discretionary,
however,
we will not reverse on this basis.2
This
Opinion
constitutes
the Board’s
findings
of
fact
and
conclusions of law in this matter.
ORDER
For the reasons stated herein, the decision of the St. Clair
County Board
to approve
site location under
Section 39.2
of the
Illinois Environmental Protection Act is hereby affirmed.
IT IS SO ORDERED.
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.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board hereby certify that the a~oveOpinion and Order was adopted
on the
~
day of
__________________,
1991 by
a vote of
7-p
.
Dorothy M. ,~inn,Clerk
Illinois P&llution Control Board
2We also note that the enforcement
actions brought against
Laidlaw by the County will be decided in a separate proceeding.
126—297
