ILLINOIS POLLUTION CONTROL BOARD
March 21,
1984
TOWN OF ST. CHARLES,
Petitioner,
v.
)
PCB 83—228
KANE COUNTY BOARD AND
ELGIN SANITARY DISTRICT,
)
Respondents.
CITY OF AURORA,
Petitioner,
v.
)
PCB 83—229
KANE COUNTY BOARD AND
)
ELGIN SANITARY DISTRICT,
Respondents.
THE KANE COUNTY DEFENDERS,
INC.,
ETAL.
Petitioners,
v.
)
PCB 83—230
KANE COUNTY BOARD AND
ELGIN SANITARY DISTRICT,
)
Respondents.
MR. EUGENE W. BEELER,
JR.,
OF BEELER, SCHAD
& DIAMOND, AND
MR. ROBERT F.
FOSTER OF WINSTON & STRAWN, APPEARED ON BEHALF OF
PETITIONERS TOWN OF ST. CHARLES AND KANE COUNTY DEFENDERS,
INC., ET AL.
MR. STEVEN L. KADDEN APPEARED ON BEHALF OF PETITIONER CITY OF
AURORA.
HONORABLE ROBERT J.
MORROW,
STATE’S ATTORNEY OF KANE COUNTY,
ILLINOIS BY MR. DAVID AKEMANN, ASSISTANT STATE’S ATTORNEY OF
KANE COUNTY APPEARED ON BEHALF OF RESPONDENT KANE COUNTY
BOARD.
MR. RICHARD
.1. KISSEL AND MR. FREDERICK MOORE, OF MARTIN,
CRAIG,
CHESTER
& SONNENSCHEIN AND MR. LYLE
C. BROWN OF GEISTER, SCHNELL,
RICHARDS
& BROWN APPEARED ON BEHALF OF RESPONDENT ELGIN SANITARY
DISTRICT.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
57-201
—2—
This matter comes before the Board on appeals timely
filed pursuant to Section 40.1 of the
Environmental Protection
Act (ACT)
by the Town of
St. Charles
(Township),
the City
of Aurora,
and the Kane County Defenders,
Inc.,
et al (Defenders).
The petitions contest the findings of the Kane County Board
(County) granting Section 39.2 approval of site location
suitability to a new regional pollution control facility,
a non-hazardous sludge landfill of the Elgin Sanitary District
(ESD).
The proposed sludge disposal site covers 79 acres at
a
quarry that has been excavated to a depth of twenty-five
feet below grade.
The pit itself is
31 acres in area
(CR
at 75)l.
It is located northeast of the intersection of
McClean Boulevard and Route 31 in unincorporated Kane County
(not to be confused with
an ongoing gravel pit operation
across McLean Boulevard and directly west of the site).
The Fox River is south of the quarry.
The project is part
of Elgin Sanitary District’s proposed four step pollution
control plan required under the Federal Water Pollution
Control Act
(33 U.S.C. ~ 1251 et ~g).
The overall planning
area under consideration is approximately
82 square miles
with a 1980 population of 132,000 people
(Pet. Exh.
9 at
3—1 to 3-3).
The area has many industrial waste contributors
to its sewage system and a variety of chemicals are expected
to be found in the resulting sludge produced by the pollution
control process
(Pet. Exh.
9 at 3-5,
3-4,
3-7).
Approximately
750,000 cubic yards of sludge are expected to be landfilled
during the estimated
20 year life of the site
(CR at
218).
The ESD proposes to pipe treated sludge to the landfill.
The sludge will be dewatered in a building on site and
then trucked to the active portion of the landfill where
it will be mixed with soil.
At the end of each day the
sludge will be covered with soil.
A leachate collection
system will be used to collect any free liquids in the
landfill.
The leachate and liquids from the dewatering
process will be piped back to the treatment plant.
After
the landfill is full, it will be covered and turned over
to the Forest Preserve District.
Leachate collection will
continue after closure.
Procedural Histo~y
The District filed its application request for site
approval
on August 11,
1983.
On September
8 and 12 the
supporting technical documents were filed.
A public hearing
was held before the Executive Committee of
the County on
1
Reference to the County Record denoted
(CR).
Reference to the Pollution Control Board Record denoted
(PCBR).
57-202
—3—
September 14.
On November
3, they voted to recommend siting
approval to the full County Board.
Siting approval was
granted November
8 by the full County Board by Resolution
83—157.
Nine conditions were placed on the approval by
the County.
On December 9 the Defenders filed a request
that the County reopen the record and appeared before the
County on December 13 to reiterate their request.
The
County refused to reopen the record.
Petitioners appealed
to the Pollution Control Board
(Board).
These appeals
were consolidated by Order dated December 15,
1983.
Because
of time constraints, oral arguments concerning discovery
was permitted at the February
9,
1984 meeting of the Board.
Hearings by the Board were held on February 16 and
23,
1984.
Applicant waived the decision period until March
21,
1984.
FUNDAMENTAL FAIRNESS
A number of issues were raised
in this case which speak
to the legislative mandate that the Board consider the
fundamental fairness of the proceedings at the County level
(Act,
Section 40.1(a)).
The issues will be discussed sequentially.
The public hearing and decision by the County is an adjudicative
process and adjudicative due process prevails.
E
& E Hauling,
et al v. Pollution Control Board, et al,
116 Ill. App.
3d 586, 451 NE 2d 555 (2d Dist.
1983),
slip op.
at 13,
14.
The Act provides a standard of fundamental fairness.
Act, Section 40.1
(a)
(b).
Petitioners must also show
a resultant prejudice.
E
&
E Hauling, slip op. at 26.
Petitioners claim that the notice requirement of Section
39.2(b)
of the Act, requiring public notice identifying
the site be published not less than 14 days prior to the
filing of the request, was not met.
The notice was published
on August 10, one day before the request was filed
(SDE
Exh.
4).
This section also requires written notice to
be served on all property owners within 250 feet of the
site and on the members of the General Assembly who are
from that legislative district.
Written notice was sent
on July 20.
While the Board frowns on late notice to the
public, the effect of the late published notice was mitigated
by the timely written notices that were sent.
The public
was well aware of
the site and its intended use because
of the ongoing Facilities Planning and the recent hearing
concerning the Elgin plan under federal law.
The petitioners
and the public were not prejudiced as to the late notice.
Secondly, petitioners essentially allege that the request
to be filed under Section 39.2(c)
should include the application
and all exhibits and supporting documents.
Section 39.2(c)
57-203
—4—
provides
“An applicant shall file a copy of its request
with the county board of the county or
the
governing body
of the municipality in which the proposed site is
located.
Such copy shall be made available for public inspection
and may be copied upon payment of the actual cost of
reproduction.”
The word request is also used in Section 39.2(b) which
provides that no
later than 14 days prior to a request
for location approval the applicant shall cause written
notice of such request to be served...”
Furthermore,
“such
Epublishedi notice shall state.. ..the date when the request
for site approval will be submitted to the county board,
and a description of the right of persons to comment on
such request as hereafter provided.”
Request is found
in Section
39(d):
“At least one public hearing is to be
held by the county board.
.
.within 60 days of receipt of
the request for site approval...” and it “shall develop
a record sufficient to form the basis of appeal of the
decision..
~1~
The Act and judicial decisions are silent as to the
definition of the word request.
The applicant has relied
on the plain meaning of the word and filed only a
2 page
document entitled a request.
Subsequently, supporting
documents were filed 2-6 days before the hearing.
The County has the responsibility to conduct SB 172
proceedings and develop procedures to be followed during
the process.
The County chose to accept the two page document
as an acceptable request, although it could have required
much more documentation.
No one at the public hearing
complained that inadequate information had been filed prior
to the hearing, that more time was required to study
documents or that another hearing was needed.
In addition,
numerous documents relating to the project were on file
with ESD and were available for public inspection.
The
published notice stated that additional information was
available from ESD
(SDE Exh 4).
In fact,
Defenders obtained
documents from ESD prior to the hearing.
The Board acknowledges
that a potential problem exists as to how much information
a request should contain, but holds that the County should
make such determinations consistent with the development
of
“a record sufficient to form the basis of appeal of
the decision.”
(Act,
§ 39.2(d)~
If only the two page
request had been filed and access to substantial additional
information addressing the six criteria had been denied
to the public
for study prior to
the
close of the hearing
process, the Board would be inclined to remand the case
to the County.
2The Board notes that in Waste Management v. Lake County Board,
50 PCB 189
(Dec.
30,
1982)
the County had passed a resolution
requiring certain documents to be filed initially.
57-204
—5—
The
30 day written comment provision of Section 39.2(c)
provides “Any person may file written comment with the
county board or governing body of the municipality concerning
the appropriateness of the proposed site for its intended
purpose.
The county board or governing body of the municipality
shall consider any comment received or postmarked not later
than
30 days from the date of receipt of the request in
making its final determination.”
At the County level ESD objected to the admissibility
of municipal resolutions and 7,513 signatures because
they
were filed after 30 days of the request filing.
Petitioners
assert that the decision of the County to prohibit any
comments after 30 days was improper.
The policy of the
County was to consider written comments submitted both
within the
30 day period and at the public hearing
(County
Brief at 4—5).
Section 39.2(d)
of the Act provides that
a public hearing must be held within 60 days of the filing
of the request.
Petitioners are correct in stating that
the
30 day period is a minimum,
not
a maximum, and that
written comments filed after the
30 day period may be considered
by the County at its discretion.
Browning Ferris Industries
v.
Lake County Board et al,
50 PCB 66
(Dec.
2, 1982).
The constraint is on the County to give at least a 30 day
written public comment period.
Although the County held
to the statutory minimum number of days,
a better course
of action might have been to hold the public comment period
open at least until the public hearing.
The County has
committed no error.
While some written comments may not
have been received,
there appears to have been no fundamental
unfairness.
Petitioners next allege that they were denied fundamental
fairness because of the procedures used at the hearing.
The witnesses for ESD were allowed to testify and cross—
examination was allowed after all ESD witnesses were finished.
Petitioners misquote from the County Record at 20,
21
when
they imply that the hearing officer’s ruling “that the
testimony of any witnesses not in attendance during the
entire proceeding would be stricken”
(Pet. Brief at 20).
This was a ruling to ensure that once all ESD witnesses
had testified,
that they would he available for cross—examination.
In light of the absence of witnesses for the other side
it appears there was no fundamental unfairness as to this
procedure.
Procedurally, another question was raised as
to whether anyone had been prevented from testifying.
At the PCB Hearings,
no one gave testimony that they
were
so prevented.
In fact, petitioners had hired a consultant
who was present at the county hearing with a prepared report
(PCBR at 73-75,
387).
This report was never introduced
by petitioners.
57-205
—6—
Newly discovered evidence is claimed by petitioners
to have been discovered,
necessitating the County to reopen
the hearing, and that the denial to reopen resulted in
fundamental unfairness.
The State Water Survey Report
(Report see Pet.
Exh.
#3 at PCB level) is alleged to be
newly discovered evidence.
It is well settled that “newly
discovered evidence must be evidence in existence of which
a party was inexcusably ignorant, discovered after trial.
In addition, facts imply reasonable diligence must be provided
by the movant.
The evidence must be material, and not
cumulative or impeaching and it must be such as to require
a different result.”
NLRB v. Jacob B. Decker
& Sons,
569
F.
2d 357,
363—4 (5th Cir.
1978).
See also Village of
Western Springs v.
Pollution Con’Lroi Board,
107 Ill. App.
3d
864,
438 N.E.
2d 458
(1st Dist.
1982).
Petitioner cites
the above decisions yet fails to note that the conclusion
of the Report as read into the hearing record by an official
of one of the petitioners, the City of Aurora (CR at 141).
In fact,
the predecessors of the Kane County Defenders,
Inc.,
a petitioner herein, were the Fox Valley Residents
Against the Sludge Dump (FVR), who not only were at the
public hearing, but were represented by counsel
(PCBR at
430).
One of the members testified at the PCB hearings
that. she knew of the Survey Report on September 2, but
did not ask for a copy until after the County hearing
(PCBR
at 394).
The Report was not newly discovered evidence.
There was no motion to introduce it as an exhibit into
the county record and no motion to continue the hearing.
The Aurora city official was asked to introduce the Report
but he declined.
The authors of the Report were present
at the County hearing and identified themselves, but they
did not introduce it.
The claim espoused by the petitioners
is in the nature of
a self—inflicted wound.
The Offer
of Proof as to this issue
is rejected.
There was no
need
to reopen the hearing.
There was no denial of fundamental
fairness.
Concurrently, the allegation that the Report was withheld
by ESD and/or the County must be discussed, and whether
there was a duty on one or more of them to introduce the
Report.
As mentioned before this
is an adjudicative proceeding,
and adjudicative due process is required.
B
& B Hauling,
supra.
ESD was
a party in an adjudicative proceeding
before
an adjudicative tribunal,
the County.
In a judicial forum,
there
is no general duty on a party to disclose negative
information.
There is no difference in this proceeding.
The County is the decision-maker, not a party,
and has
no duty to submit documents for a party in an adjudicative
proceeding.
Petitioners further allege that the Director
of the Kane County Environmental Department,
for whom the
Report was prepared, was neither part of the County Board
nor part of its staff,
citing Heller v. Jackson County
Board,
57-206
—7—
71 Ill. App.
3d 31
(5th Dist.
1979), and therefore, had
a duty to submit the Report.
The Director is appointed
by and acts as assistant to the County Board.
The Director
serves on a County Board committee with the County Board
members
(PCBR at 639).
In Heller, the official was an
appointed assessor, whose office and duties are separate
and apart from the County Board.
Therefore, the Director
is considered staff of the County Board and has no duty,
as part of an adjudicative tribunal,
to submit the Report.
The relation of the Director to alleged ex parte contacts
will be discussed below.
Ex parte
Another aspect of whether there was fundamental unfairness
in a proceeding is determining if there was any ex parte
contacts.
These contacts have been defined many times
and in varying ways.
Essentially, they are those unnecessary
and avoidable contacts that take place without notice and
outside the record between one in
a decision—making role
and a party before that tribunal
B
& E Hauling, supra,
slip op. at
29;
Town of Ottawa,
et al v. LaSalle County
Board,
et al PCB #83-135/136
(Opinion and Order January
26,
1984 at 6), on appeal Town of Ottawa, et al v. Pollution
Control Board
(Petition for Review filed February 29,
1984).
Ex parte contacts are frowned upon because they
(1) violate statutory requirements of public hearings,
and concomitant rights of the public to participate in
the hearings,
(2) may frustrate judicial review of agency
decisions, and
(3) may violate due process and fundamental
fairness rights
to
a hearing.
The impropriety of ex parte
contacts in administrative adjudication is well established.
E&
B Hauling, supra,
slip
op.
at 29,
citing:
U.
S.
Lines
v.
Federal Maritime Commission,
584
F.
2d
519,
536—42
(D.C.
Cir.
1978); PATCO
v. Federal Labor Relations Authority,
685
F.
2d
547, 564—66
(D.C. Cir. 1982);
Sangamon Valley
Televisions Corp.
v.
United States,
106 U.S. App. D.C.
30,
33,
269 F 2d
514,
520
(1962); Fender v,
School Dist.
No.
25,
37 Ill. App.
3d
736, 745
(1976).
Essentially, there were many contacts before and after
the hearing of September 14.
Before the Hearing
The first contact alleged is a restaurant meeting on
September
1 between ESD and approximately
6 of the 26 County
Board members,
ESD made a presentation as to what their
filed request was about regarding the sludge disposal facility
(PCBR at 660).
There was no notice to Petitioners
(Pet.
Brief at 7).
One County Board member testified that she
57-207
—8—
did not recall
what technical materials were there, but that
there were drawings used which were subsequently used at
the September
14 hearing
(PCBR at
663),
General questions
about the plan were asked and answered (PCBR at 663).
It has been stated that this is an adjudicative proceeding,
E
& E Hauling,
supra which necessarily begins at the time
of filing of the request for approval.
Petitioners claim
that because these contacts were after the request filing
and there was no notice to them, that these were ex
parte
contacts.
ESD states that the County was not shown the
documentary exhibits which were later filed prior to the
hearing and there was no new evidence presented September
1 that was not presented at the hearing (Resp Reply Brief
at 15).
Respondent ESD asserts the following:
1)
that all the discussion
at the restaurant meeting
was repeated at the hearings;
and thus no denial
of opportunity to cross—examine;
2)
the E
& E Hauling opinion declaring the site
location suitability process adjudicative had
only recently been filed and was not generally
known;
3)
the meeting was held
in good faith; and
4)
“that the County is primarily a legislative body
which hald
been thrust into an unusual adjudicatory
role.”
(Resp. Brief at 16).
The Board notes that E
&
E Hauling was filed on June
15,
1983.
Pursuant to that holding, the site location
suitability process is adjudicatory from the time the request
was filed until the decision date.
Thus, where a party
before an adjudicative tribunal presented evidence off
the record with no notice to the other interested parties,
and the contact was unnecessary and avoidable, the contact,
as here, was ex parte.
Although the process at the local
level has no other formal
“party” to give notice to, the
applicant should know better than to meet with the adjudicative
tribunal before the hearing.
The next question would be whether these
ex parte contacts
irrevocably tainted the proceedings
so as to require reversal
of the decision ofthe County.
B
& B Hauling followed the
PATCO standard and stated that
a court must consider
“whether,
as a result of improper ex parte
communications,
the agency’s decisionmaking
process was irrevocably tainted
so as to
57-208
—9—
make the ultimate judgment of the agency
unfair, either to an innocent party or to
the public interest that the agency was
obligated to protect.
In making this deter-
mination,
a number of considerations may
be relevant:
the gravity of the ex parte
communications; whether the contacts may
have influenced the agency’s ultimate decision;
whether the party making the improper contacts
benefited
from the agency’s ultimate decision;
whether the contents of the communications were
unknown to opposing parties, who therefore had
no opportunity to respond; and whether vacation
of the agency’s decision
and
remand for new
proceedings would serve a useful purpose.
Since
the principal concerns of the court are the
integrity of the process and the fairness of the
result, mechanical rules have
little place in
a
judicial decision whether to vacate a voidable
agency proceeding.
Instead, any such decision
must of necessity be an exercise of equitable
discretion.”
PATCO v.
Federal Labor Relations
Authority,
685
F.
2d
547,
564—65
(D.C.
Cir.
1982).
A court will not reverse an agency’s decision because
of improper ex parte contacts without a showing that the
complaining party suffered prejudice from these contacts.
Fender v. School Dist.
No.
25,
37
111. App.
3d 736,
745.
Herein, the
County Board members
that represented Elgin’s
service area were invited (Resp Brief at 16,
ftn.
7) and
6 members attended.
The question becomes whether the
decision-making process of the agency
has been shown to
be irrevocably tainted.
It appears no evidence was presented
at this meeting that was not later introduced at the public
hearing.
The presentation was of
a general nature.
Petitioners
had an opportunity to respond to the evidence, albeit two
weeks later at the hearing.
The County Board members that
attended the restaurant meeting are listed on the PCB Hearing
Record at 661.
Referring to the County Resolution 83-157,
all
6 Elgin service area members voted for siting approval.
Final vote was 16 to
9 for approval.
The
City of Elgin
was for the facility and introduced
a resolution into the
County record
(SDE Exh.
20).
It appears that these
6 members
would have voted affirmatively anyway.
There has not been
a sufficient showing by petitioners that the decision-making
process has been irrevocably tainted, therefore, there
has been no undue prejudice.
While the Board does not
condone such contacts,
there will be no reversal here.
Fender,
supra.
57-209
—10—
As to the contact between the County Board member and
a member of the Board of Trustees of Elgin this occurred
during the pendency of
art
adjudicative proceeding, off
the record without notice to interested parties,
and was
an unnecessary and avoidable contact.
The Trustee asked
the County Board member to vote for siting approval.
This
was an ex parte contact,
but there has been no irrevocable
taint shown of the decision-making process or undue prejudice.
This County Board member voted to deny siting approval
(Co. Resolution 83-157).
Petitioners allege that the phone conversations betwee
a County Board member and the general manager of
ESD
were
ex parte. The County Board member questioned whether the
site would pollute the Fox River
(PCBR at 632-5).
Again,
these are ex parte contacts for the reasons discussed above,
although there is no showing of irrevocable taint of the
decision—making process.
There is an allegation that the Director of the Environmental
Department was engaged in ex parte contacts with the County
Board members.
As the Board has noted before in this opinion,
the Director is considered staff
of the Bounty Board and
therefore,
there have been no ex parte contacts between
them.
Where the County, normally sitting as a legislative
body,
has entered the adjudicative arena, the subject matter
necessarily dictates that the County members be able to
consult with others such as the Director for direction.
After the Hearing
The ex parte doctrine normally focuses on looking at
contacts between a party and
a member of an adjudicative
tribunal.
E
&
E Hauling,
Ottawa/Naplate, supra.
Herein,
there were contacts
in
the parking lot between the County
Board member, State Water Survey (Survey) employees, and
the Director of the County Environmental Department.
The
applicant was not present.
The ex parte doctrine now switches
focus to look at the contacts between
a member of the adjudicative
tribunal and one not technically a party, where the Contacts
relate to the substance of
a pending adjudicative case.
The discussions did relate to the substance of
the pending
case and occurred without notice and outside the record.
Although the County Board member did ask questions relating
to the substance of the matter,
the concern appeared also
to be procedural--whether to reopen the hearing (PCBR at
642—4).
This testimony was in an Offer of Proof beginning
at 642.
As far as the Offer concerns conversations between
the County Board member and the Survey people, it will
be admitted.
The Hearing Officer is correct in denying
57-210
—11—
admission of the conversation between the County board member
and the Director
of the Environmental Department of the
County.
This part of the Offer of Proof
is denied as
delving into the
mental processes of the County Board
members.
Inquiry into the conversation between the Director
and the Survey people
is proper.
One of
the Survey
people
testified that the conversation did take place,
although
the substance of
the conversation was properly not allowed
as it related to the position of the Survey as to the sludge
facility (PCBR at 543-4).
The other Survey representative
also stated that
the parking lot discussion took place
(PCBR at 589—91).
The Director testified that he questioned
the Survey representatives as to why they did not submit
the Report at the public hearing.
All four participants
seem to
differ
as to what was said.
With the
Director, it appeared to be
a procedural problem
(PCBR
at 223).
As to the conversation between the County Board
member and the Director this is clearly impermissible as
infringing on the mental processes of the County (PCBR
at 225).
In summary, based upon the record, the parking
lot incident was an ex parte contact.
The County Board
member knew about the ex ~
contraints
(PCBR at 643)
and the evidence in
the
record demonstrates that conversations
were had concerning
the substance of the pending case.
There has been
insufficient proof to show any irrevocable
taint of the decision—making process.
Respondent alleges ex ~
contacts by petitioners
occurred on numerous occasions
(Resp.
Brief
at 20).
One
of the petitioners’
members telephoned two different County
Board members
between the hearing and the date
of decision and
expressed his view
(PCBR
at 86-7).
This is ex parte
because
although not technically a party
at the County level, he
had rights which he subsequently exercised
to become a
party on appeal.
His inquiry
dealt directly with
the substance
of
a pending matter before the adjudicative tribunal and
with the members of that tribunal without notice and off
the record.
Although the two County members voted to deny
siting approval
(Resolution 83-157), there is insufficient
evidence to show
that this contact irrevocably tainted
the decision—making process since the majority of the County
Board
voted to approve the site location suitability.
MANIFEST WEIGHT
The legislature has mandated
in Section 39.2(a) that
the County or local
governing body consider six criteria
when decid ng to grant or deny site location suitability
of any new regional pollution
control facility and give
reasons therefore:
57-211
-I-.’
—
I
h
“The County Board.
.
.shail
approve
the site location
suitability for such
new
reglonal pollution control facilities
only in accordance
with the following criteria:
(I)
the
facility
is necessary to accommodate
the waste
needs of the area
it is intended to serve;
(II)
the facility is
so designed, located and proposed
to be operated that the public health,
safety
and welfare
will be protected;
(III)
the facility
is located so as to minimize incompatibility
with
the
character
of
the
surrounding
area
and
minimize the effect on the value of the
surrounding
property;
(IV)
the facility
is located outside the boundary of
the 100 year flood plain as determined by the
Illinois
Department
of
Transportation,
or the
site is fiood-proofed to meet the standards and
requirements of the Illinois Department of
Transportat.iori
and
is
approved
by
that
Department;
(V)
the
plan
of
operations
for
the
lacility
is
designed
to
minimize
the
danger
to
the
surrounding
area
from
fire7
spills,
or
other
operational
accidents;
and
(VI)
the traffic
patterns to or from
the
facility are
so
designed
as
to
minimize
the
impact
on
existing
traffic
flows.
Section
40.1(b)
in
conjuction
with
Section
40.1(a)
provides
that
the
burden
of
proof
as
to
each
of
the
criteria
in on the petitioner.
The
Pollution
Contrcl
Board
hearing
is
to be based exclusively
on
the :record developed before
the County.
The
standard
of
evidence
to
be
used
by
this
Board is
the
manifest weight
of
the
evidence
standard.
The decisions
of
the
County are to be
reversed
only if
they are against
the manifest weight of the evidence.
City of East Peoria1
et al.,
v,
Pollution Control Board,
et al., 117 Ill.
App.
3d
673,
452 N.E.
2d
1378
(3rd Dist
1983)
citing
Landfill,
inc.
v.~
Pollution Control Board,
74
Ill.
2d
541,
387
N.E.
2d
258
(1978)
and
Mathers v.
Pollution Control Board,
107
Iii..
App.
3d
729,
438 N.E.
2d
213
(1982).
Accord~E& E Haullng~ ~
citing,
inter alia, Wells
Mfg.
Co.
v. Pollution Control Board,
73 Ill.
2d 226
(1978).
57-212
ESD is
seeking
a methoi.
I’
3pa’~g
of its sewage
sludge.
Currently
tue
a~
~ige
iS ~o~pii~d
at its west
and south regional
ala
it~ ‘Pet
~
a~.
3~l0;.
Several
alternate disposal methods were stuctr~d
j
ESD including
incineration,
land application, tran~pr~ing
it
out of
the area,
and landfill burial
(Pet
Exh~ 9,
Sec.
5;
Pet.
Exh.
10).
Most alternatives to landfilling were determined
to be too costly and several presented greater operational,
reliability,
and environmental problems
(Pet.
Exh,
9 at
Sec.
4; Pet.
Exh,
10
-
Landfill need
Since 1975 ESD
has been planning under the Federal
~ater Pollution Control
Act
(33
U.S.C.
§
1251 et
~
to de~~ne the overall wastewater
treatment and disposal needs of the area through a four—step
pollution control program called Facilities Planning
(Pet.
Exh.
9 at 1-1).
The purposes are ~ ofold~
to attain the
national objectives of clean
~ater and to receive grant
eligibility status
(Id
)
The overall o~anningarea under
consideration
is approximately
82 square ~iileswith
a 1980
population of
132,000 peonie
Pet
Erh
3
at 3~3).
The Second Distret
~:pe~ate
Coa~t~ecently
interpreted
criterion #1 in E&i~atiiVcl~ei~rContro1Board,
116 Ill, App.
3d
586, 45~ I .1.
2d asa
2n3 Dist,
1983).
In that case the Vii1ag~ of Paaovcr Path had claimed
that
E
& E
Hauling
did rot oro~e
t
the U~Pay~County Board
that
the
facility wa~nec~~ar
ir evaluating this
claim
the Second District sca ~eo
On this rec~c t
c
si
as n~ in error in
finding that petitionars net the~rburden to show
that
the facility was necessary to accorr~ioda2e the waste
needs of the area
Tea use of
h&cessary”
in the statute
does
not
require app1~cants~o
s ow that a proposed
facility is neces~aryin absoThte ~err~s
but only that
the proposed facality ~s
~expedient’
r
“reasonably
convenient”
vis~~
tI~cai~e~a waste oeed~,
(Foster
& Kleiser
v.
~ore~jsd
of~poeals, 38
Ill, App.
3d
50,
53 (l976~,IJiinn
Lell Tele~honeCo. v. Fox,
402 Ill.
617,
631
~l9’
L~nc~d be unreasonable
to require petItioners
t’~’
orove tnat every other potential
landfill site
in t~e.
~egcon
is ursu~table; such a
construction woulo a~vcr
c~n”
~a-id~Tilldevelopment
if
more
than one
~~Ic
c~e ;o 3d he found,
This
construction of
tic
~tats~a
should be aecided as
unworkable and implausiule
~iiec~~lTele
hone
Co.
v.
Fox,
402
11.
~c 617,
631 (~?ipOp. at
35).
Clearly, ESD has s~onnn.~torl;
at the site is expedient
and reasonably convenient to sats~y tre waste needs of
the area, but they have ~3io~nthaL
Is
~ccessary
to accommodate
the waste needs of the
$2 square m~e aLec studied under
federal Facilities Plannang.
Recently the Appel~~e
~hLLC
d~
ras decided
the
issue also.
Waste Mans enan
of 1l’~r~’:sInc.v.
Pollution
Control Board, etal,
and Boar 1 ot
~
Waste
Ma
iii
of 111
~n
~
No.
3-83-0325
and 3—83—0339, consolilaLad
~3a J~
,
Ma
ci
9, 1984).
The Third District would ~1nit
C D~strict~slanguage
in ~
of expeuie
cr rea~oaaby convenient
to the facts of that care aicie
e di~ti~guisnesE&
E
Hauling because the applica
shcw~da
Weal need for the
facility.
Waste Ma~~~eni,slip c~
-,
8
~~an~m~t
states that the applicant must ~how tiat landfills
“must be shown to be reasonably required by
the waste needs
f tl~earea intended to be
served,
taking into consideration the waste
production of the area and the
v nste disposal
capabilities, a org s’it~ ai y othec relevant
factors
13
a’~
Nevertheless,
ESU Iere~rr~
r
ly produced enough
evidence showing that
~Th
~e
s exoedient and
reasonably
convenient,
but ha: ~1u
reThed to
accomplish
the
national
objeeti
e
i
a
a
r
:xder federal law.
The
Board
canno~ sa
~
da
:
~be County as
to Criterion
1 wa~nja~r~
a: f~
e~gr’ of the
evidence.
ESD presented
3
ic.
eThified to
the geological feu~
f
~.
lydrology of
the area, and the cii
~...
area
Fourteen
borings were taken an tue
ares.
ft a~ Jound that the
quarry floor consists of
~i
3o
a
e~co
dolomite over
50
feet of
shale
(CR at
38’
:
: ~n l:de~Praanard shale.
The
Brainard
shale
is
an ao:~t~roI 5permeable
to vertical
ground
water
movement
Pet.
Lxn.
.l at
5).
Beneath
the
shale
is
another
liineste
S to~t
aTh n
‘i
i
is
a
shallow
aquifer
used
by resider ~
3i
Je area
‘~33at
38j.
Through
permeability
testing,
h’cd
inca. u~cThriarate nf~ow of
fluid through a soil,
t
a
~l ocrrr~a.lity
sas shown to
be
1 x i0~8cm/sec
(ox
~t
I
a Ic~
In
Lice
liner
did
occur,
the leacuaTh,
~rdcr
or~a
r ur~tances,
might
travel 0.1 inch/year
The req
i~ a~er~
I
the lllinois
Environmental Proteci1~ tue~~
cc
I
.
1
7
cin/sec, and
if this was the cace
tTh £eacha ~
3~ttravel 0,1
foot/year.
The sides of the quarry
oc
~
o arevent leachate
from leaving the site.
~hc needed
~
a
I Thners can
be constructed to the uc~1redperu .~a1~lity~CR at 42).
There is an artesian well :~ rice ~loor
of the quarry.
This upward water press~.e
iv~l.L
rcaace
:r: ability of leachate
to migrate vertically turough the
iir.er
CR at
44).
The
—15—
dewatered nature of the sludge will further decrease the
potential for migration.
It also must be remembered that
as a condition to the granting of site approval a leachate
collection system and monitoring wells must be constructed
(Pet.
Exh.
10
ISSUE LANDFILL NEED at
3, CR at
44,
115,
all as incorporated into Resolution 83-157, Kane County
Board, Condition #9).
A matter of the utmost concern
is the presence of the
shallow dolomite aquifer which area residents use as their
water supply.
The hydrology expert testified that even
if any leachate did escape notwithstanding the protection
delineated above, that the leachate would not move into
the aquifer
(CR at 55).
If there is leakage at the north
or west sides of the
quarry,
the flow would be into the
Kankakee dolomite formation, west under McLean Boulevard
into the active quarry.
If leakage occurs at the south
or east of the quarry, the flow would be into the glacial
drift material and then into the Fox River
(CR at 55,
56).
Leakage,
if any, is not expected to contaminate wells in
the Newark Valley
(CR at 59).
In the event that any well
is contaminated, the County has required ESD to provide
potable water to affected homes.
Quarry blasting was another factor considered.
An
engineer for ESD testified that there would be no damage
to clay embankments, the drainage system,
or the structures
(Pet. Exh. 17 at
2,
3; CR at 65-67).
It must be noted
that two residents testified that they had been paid for
damage to their property caused by past blasting at the
site (CR at 162—165).
Further concern was voiced about the industrial constituents
of the sludge;
several being carcinogens (CR at 194, 195).
Many of these chemicals were expected to be found in the
sludge
(Pet.
Exh.
9 at 3-4).
Their presence was subsequently
confirmed
(Pet. Exh.
9 at 3-7,
3-10).
It must be remembered
that municipal sludge is not classified as hazardous
waste.
In summary as to criterion
2, the experts have testified
as to the soil permeability, site design, water flow,
effects
of blasting,
and so forth.
The Board cannot say that the
decision of the County as to Criterion
2 was against the
manifest weight of the evidence.
Criterion
#3
A real estate appraiser testified as to three different
aspects regarding his study (Pet.
Exh.
21):
physical.,
economic, and market feasibility of the subject property.
Directly north of the site
is a
100 foot right-of-way for
the Illinois Central railroad track.
West across McLean
Boulevard is an ongoing gravel operation.
To the south
is Route 31, Five Island
Park
Subdivision and then the
57-215
—16—
Fox River.
The Fox flows east to west at this point before
turning to flow south.
There is fencing,
berming, and
trees
screening the site.
In the southeast corner is a
hardwood forest.
This site has been mined for the past
40 to 50 years
(CR at 75).
Therefore,
the expert concluded
that the surrounding properties to the north/northeast
and west were “inharmonious with any form of residential
land use...”
(CR at 76).
Looking at Petitioner’s Exhibit
#22
(map),
the expert spoke of the 14 subdivisions developed
prior to 1979 that were in a
5 mile radius of the site
(CR at 78).
He stated that within these subdivisions enough
property was available for commercial, industrial and residential
uses.
If an investor had
a choice of developing the gravel
pit
or the other available sites,
the other properties
would be chosen
(CR at 80).
Based on the above, the expert
concluded that the sludge operation would be “the highest
and best use”
(CR at 80, defined in Pet. Exh.
21 at 10).
Another real estate appraiser from the audience testified
at the September 14 hearing.
He stated that the limestone
quarry was started
13 years ago, not
40
(CR at 174).
He
also stated that because of the sludge. landfill, property
values would go down
(CR at 172-3),
yet in answering a
question from a County Board member, he opined that when
the limestone quarry was started, property values did not
go down (CR at 175).
Concern was voiced over the possible odor that would
emanate from the site.
An expert witness from ESD testified
that because the sludge would be stabilized prior to piping.
dewatered in a building at the site, and mixed with soil,
that odors would be minimal (CR at 100,
101).
The County decided that the applicant met their burden
as to Criterion
3.
It should be noted that the statute
does not say that the applicant show the proposed use of
the site is the highest and best use, only that it is not
incompatible with the surrounding area and that it minimize
the effect on property values in the area.
Blasting, dust,
and noise will continue to the west of the site at the
ongoing gravel operation.
The berms and trees screen the
site.
The property values should
not be
overtly affected
because,
if anything, they were
affected when the mining
operation started years ago.
As for criterion
3,
the appellate
court in
~!li~,
supra,
stated that “the third criterion
would not seem to require proof that the applicants can
assure the public of an odor—free landfill...”
(slip op.
at 43).
The Board cannot say that the decision of the
County as to criterion
3 was against the manifest weight
of the evidence.
Criteria #4,
5,
and
6
Testimony as to criterion
4 showed that the proposed
facility was outside the
100 year flood plain
(CR at 81,
113).
As to minimizing the impact on traffic, criterion
57-216
—17—
6, an ESD witness stated that because the sludge was piped,
there would be minimal impact on traffic,
if not less traffic
(CR at 82-83).
The petitioner Defenders brief,
in reference
to criterion 5, alleges that ESD never showed how it would
“avoid recurrence of blasting damage previously sustained
by adjacent property owners. ..(Defender’s Brief at
25).
Apparently this is in reference to the likelihood of
recovering
what saleable materials are left in the pit before the
shale
layer is reached
(Pet.
Exh.
11 at 11).
An ESD witness
testified that the sludge was not toxic, hazardous,
or
combustible and that because it was transported by pipeline.
operational dangers were minimal (CR at 82).
Although
the witness did not speak to the issue of material removal
prior to the start of the sludge landfill,
the County
apparently
felt that the sludge landfill,
once operating, would minimize
any danger.
The Board cannot say that the decision of
the County as to criteria
4,
5 and
6 was against the manifest
weight of the evidence.
Conditions
Conditions
1-9 inclusive are found in the Order of
Kane County Resolution 83-157.
None of the conditions
is contested by the parties.
The conditions appear not
to violate the Act or any Board or Agency rule or regulation.
The Board notes that condition
9 holds ESD to any representations
made at the September 14 hearing.
The Board’s finding that the County acted properly
in determining that the proposed landfill site of ESD met
the six criteria is based on evidence in the record of
the County hearing.
The Board notes that this record is
essentially devoid of technical testimony against the site.
In its review of ESD’s permit application the Illinois
Environmental Protection Agency
(Agency) will consider
the technical advisability of disposing of sludge at this
site.
This opinion should
in no way be construed as a
recommendation of this site to the Agency.
Likewise, the
findings herein shall not in any way limit the Board’s
review of any future appeal of the Agency’s action on the
permit application for this site.
SUMMARY
In summary, E
& E Hauling,
~
was filed on June
15,
1983.
The public hearing was required to be viewed
as an adjudicative hearing.
The many ex parte contacts
in this case, overall, did not unduly prejudice either
party.
There was an insufficient showing as to whether
the decision—making process of the County was irrevocably
tainted.
The proceedings were fundamentally fair to all
concerned.
57-217
—18—
As to the criteria,
ESD introduced enough evidence
to show that the proposed facility would satisfy the 6
criteria enumerated in Section 39.2(a)
of the Act.
The
County Board with Resolution 83-157 has included its
findings as to the proposed facility, citing the
6 criteria
and explaining which conditions were designed to better
achieve which criterion.
The Board cannot say that the
decision of the County to conditionally approve the site
location suitability of this facility was against the
manifest weight of the evidence.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
Upon the review of the November
8, 1983 decision of
the Kane County Board conditionally approving the application
of Elgin Sanitary District as to site location suitability,
it is the Order of the Pollution Control Board that the
decision of the Kane County Board be affirmed.
IT IS SO ORDERED.
Chairman Jacob
D. Dumelle and Bill S. Forcade dissented.
I, Christan L
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and
Order were adopted on the
...‘/‘~
day of
~
,
1984 by a vote of
‘~-~
Christan L. M ffett,A erk
Illinois Pollution Control Board
57-218
