ILLINOIS POLLUTION CONTROL BOARD
December 7,
1995
VILLAGE OF LAGRANGE,
CITY OF
)
COUNTRYSIDE, CHRISTINE RADOGNO,
)
LAUREEN DUNNE SILVER, MICHAEL
)
TURLEK,
and DONALD
YOUNKER,
)
Petitioners,
)
PCB 96-41
(Pollution Control
V.
)
Facility Siting Appeal)
)
MCCOOK COGENERATION STATION,
L.L.C. and the BOARD OF TRUSTEES
)
OF THE VILLAGE OF NCCOOK,
)
)
Respondents.
A. BRUCE WHITE AND BARBARA MAGEL,
of KARAGANIS
& WHITE,
LTD.
APPEARED ON BEHALF OF THE PETITIONERS;
DAVID ENGEL AND MARX D.
CHUTKOW,
of SIDLEY
& AUSTIN, APPEARED ON
BEHALF OF MCCOOK COGENERATION STATION, L.L.C.;
and
VINCENT CAINKAR of LOUIS
F. CAINKAR,
LTD. APPEARED ON BEHALF OF
THE VILLAGE OF NCCOOK.
OPINION AND ORDER OF THE BOARD
(by E.
Dunham):
This matter is before the Board on a petition for review,
filed by petitioners on August 21,
1995.
Petitioners, Village of
LaGrange, City of Countryside,
Christine Radogno, Laureen Dunne
Silver, Michael Turlek,
and Donald Younker, seek review, pursuant
to Section 40.1 of the Environmental Protection Act
(Act)
(415
ILCS 5/40.1
(1994)), of the Board of Trustees of the Village of
McCook
(Village) July 17, 1995 decision granting siting approval
to McCook Cogeneration Station L.L.C.
(MCS)
for a waste wood
processing facility and a waste wood fired electrical
cogeneration project.
Pursuant to Section 40.1 of the Act, the Board is to hold a
public hearing “based exclusively on the record before the
Village
board”.
The Board held public hearings on the petition
for review on October
10 and 11, 1995,
in McCook,
Illinois before
Board hearing officer Deborah Frank.
Members of the public
attended these hearings and provided public comment on the
record.
In addition, the Board received 330 written public
comments prior to the close of the record in this matter.’
The Board also received public comments after the
November 1,
1995 deadline established by the hearing officer.
(Tr. at 349.)
These late-filed public comments were not
considered by the Board.
2
Petitioners filed their post-hearing brief on October
25,
1995.
Respondent2, McCook Cogeneration Station,
L.L.C.
filed its
response brief on November
1,
1995.
Petitioners filed their
reply brief on November 8,
1995.
The Board’s responsibility in this matter arises from
Section 40.1 of the Act.
The Board is charged, by the Act, with
a broad range of adjudicatory duties.
Among these is
adjudication of contested decisions made pursuant to the local
siting provision for new pollution control facilities,
set forth in Section 39.2 of the Act.
More generally,
the
Board’s functions are based on the series of checks and balances
integral to Illinois’ environmental system:
the Board has
responsibility for rulemaking and principal adjudicatory
functions,
while the Board’s sister agency, the Illinois
Environmental Protection Agency (Agency)
is responsible for
carrying out the principal administrative duties, inspections,
and permitting.
The Agency does not have a statutorily-
prescribed role in the local siting approval process under
Sections 39.2 and 40.1, but makes decisions on permit
applications submitted if local siting approval
is granted and
upheld.
The Board’s scope of review encompasses three principal
areas:
(1)
jurisdiction;
(2)
fundamental fairness of the village
board’s site approval procedures,
and
(3) statutory criteria for
site location suitability.
Pursuant to Section 40.1(a)
of the
Act, the Board is to rely “exclusively on the record before the
Village)”
in reviewing the decision below.
However, with
respect to the issue of fundamental fairness, the Illinois
Supreme Court has affirmed that the Board may look beyond the
record to avoid an unjust or absurd result.
(E
& E Hauling
v. PCB
(2d Dist.
1983),
116 Ill. App.
3d 587,
594,
451 N.E.
2d 555,
aff’d 107 Ill.
2d 33,
481 N.E.
2d 664
(1985).)
BACKGROUND
On February 2,
1995, notice was published in the
Daily
Southtown Newspaper,
that NCS intended to file an application for
local siting approval with the Village of McCook.
(C36-C37,C73-
C74.)3
MCS submitted an application for local siting approval to
2
Further reference to respondent shall refer to McCook
Cogeneration Station,
L.L.C.
While the Village of McCook was
represented by counsel at the hearing before the Board,
it has
not filed a brief nor presented any arguments in this matter.
~
“Cxxx” will be used to refer to the Village’s record of
the siting proceeding,
and “Pr.
x” will be used to denote the
transcript of the hearings held by this Board on October
10 and
11,
1995.
3
the Village of McCook on February 21,
1995.
(Cl.)
The
application was comprised of fifteen pages of text and seven
exhibits.
(Cl
-
C37.)
On May 10,
1995, MCS submitted an amended
siting application to the Village.
(C38
-
C74.)
The revisions in
the amended application included a decrease in the amount of
waste wood processed at the facility,
art increase in the amount
of acreage required for the facility and a new site layout
diagram.
(C1049
—
C1050.)
The proposed facility consists of
a waste wood processing
facility and a cogeneration station.
(C1057.)
The proposed
facility is to be located on a 22-acre site located in McCook,
Illinois.
(C1058.)
A General Motors facility is
located on the
south and east sides of the proposed location.
(C1058.)
To the
north and west of the site is an operating rock quarry.
(C1058.)
The area is zoned for heavy industrial operations.
(C42.)
The facility is intended to serve the region’s waste wood
disposal needs, with a primary focus on the Chicago metropolitan
area.
(C40.)
The incoming waste wood at the proposed wood
processing facility will be separated and either recycled or
coinbusted in the cogeneration project’s boiler under controlled
conditions.
(C41.)
The project will be designed to reduce an
average of 1,040 tons per day of waste wood by 95
or more while
producing electricity and steam.
(C43.)
The cogeneration facility will provide electricity to
Commonwealth Edison Company and steam to the General Motors—
Electro-Motive Division (GM-EMD).
(C43.)
The GM—END facility
will use the steam to meet its heating and operational needs
in
the manufacture of railroad locomotive engines and associated
equipment.
(C43.)
This will allow GM-END to retire from service
three existing coal fired steam boilers, the first of which was
constructed in 1946.
(C43.)
The main components of the waste wood processing facility
and the cogeneration facility will be waste wood delivery,
processing and storage,
a fluidized bed boiler,
a steam turbine
generator,
air pollution control equipment, ash handling
equipment, and auxiliary equipment,
such as a cooling tower,
fire
protection equipment and an electrical switchyard.
(C43.)
The
cogeneration facility will also include one or two new auxiliary
natural gas fired steam boilers to provide for peak demand and
backup steam to GM—END.
(C43.)
The natural gas fired boiler(s)
will have the capacity to generate a maximum of 110,000 pounds
per hour each of process steam for use by GM—EMD.
(C43.)
The Village held public hearings on the amended application
on May 24 and 25,
1995.
The Village adopted rules and procedures
for the public hearings.
(C75-77, C83-84.)
The first day of the
public hearing was allocated for proponents of the project and
the second day was reserved for opponents.
4
At the hearing before the Village Board, the applicant
presented testimony from Edward Bartlett, Jr., John Lindeberg,
Lawrence Joachim and Cynthia Conklin and introduced fifteen
exhibits.
Mr. Barrett provided testimony on the general
operation of the proposed project and the traffic plan.
(C1052-
C1070.)
Mr. Lindeberg provided testimony on traffic flow around
the site and the operations at the facility.
(C1080-C1093.)
Mr.
Joachiin testified on the design of the facility and the equipment
located at the facility.
(C1099—C1l13.)
Ms. Conklin testified on
the waste needs of the area.
(C1122—1154.)
The rules developed by the Village for the hearing allowed
for the cross—questioning of witnesses.
Those wishing to ask
cross—questions were instructed to submit the question in writing
to the hearing officer.
(C1046.)
The hearing officer would
determine if the question was relevant and then ask the question
of the witness, rephrasing the question if necessary.
(C1046.)
Written public comments were accepted by the Village until June
24,
1995.
(C777
-
C1042.)
The Village,
by ordinance,
granted
siting approval to MCS on July 17,
1995.
(C1445
—
Cl454.)
Numerous comments were made by members of the public on the
record at the hearing before the Board’s hearing officer, Deborah
Frank,
including comments by State Representative Eileen Lyons
and
a spokesman from Congressman William Lipinski’s office.
The written public comments received came from as diverse
sources as Congressmen, Village Boards,
attorneys,
business
people, citizens and school children.
The Villages of Burr
Ridge, Forest View, LaGrange, LaGrange Park and Lyons officially
opposed the siting approval.
Congressman William Lipinski
forwarded a letter to the USEPA requesting a review of pollution
sources in the area.
Most of the comments from citizens were made by way of form
letters, signed and mailed individually.
All but two of the
comments received contained issues addressed by the petitioner’s
briefs.
One comment received in behalf of MCS explained the
steam flow through the process, and one comment discussed the
placement of the MCS notice in the
Daily Southtown,
a newspaper
not distributed throughout the region surrounding NcCook.
This
issue was merely a footnote in petitioner’s brief,
but was
elevated in importance
in the Board’s opinion by the filing of
the public comment.
The Board notes that many of the public
comments request the repeal of the Retail Rate Law, 220 ILCS 5/8
403.1
(et. seq.).
The Board,
as an agency of the executive
branch of the state government, has no authority to affect repeal
of a law enacted by the state legislature.
Those commenters
favoring repeal of the Retail Rate Law are advised to convey
their concerns to their respective state legislators.
5
Petitioners assert that the Village lacked jurisdiction to
act on the siting request, that the proceedings were
fundamentally unfair and that the Village’s decision on several
of the criteria was against the manifest weight of the evidence.
JURI
SDICTION
Section 39.2(b) of the Act requires the applicant to publish
notice “in a newspaper of general circulation published in the
county in which the site is located” containing information on
the proposed site and “the right of persons to comment on the
request” for siting approval.
Section 39.2(c)
of the Act
requires the applicant to file a copy of its request with the
Village Board.
The request shall contain the “substance of the
applicants proposal” and “all documents,
if any, submitted as of
that date to the Agency pertaining to the proposed facility”.
(415 ILCS 5/39.2
(1994).)
The notice requirements of Section 39.2 of the Act are
jurisdictional prerequisites to the County Board’s power to hear
a landfill siting proposal.
(Concerned Citizens of Williamson
County
V.
Bill Kibler Development Corp.
(January 19,
1995),
PCB
94—262.)
Due to the jurisdictional nature of the notice
requirements of Section 39.2 of the Act, whether or not actual
prejudice was shown to have resulted from failure to meet the
notice requirements, the county lacks jurisdiction to act on the
siting request if the notice requirements are not met.
(Id. at
807).
The appellate court has stated that it is appropriate for
any person to raise the issue of jurisdiction.
(Concerned
Citizens,
Inc.
v. M.IG.
Investments,
Inc.
(2nd Dist.
1986),
144
Ill.App.3d.
334,
98 Ill.Dec.
253,
494 N.E.2d 180.)
The notice
requirements of Section 39.2 are to be strictly construed as to
timing, and even a one—day deviation in the notice requirement
renders the county without jurisdiction.
(Brownin~-Ferris
Industries of Illinois.
Inc.
v. PCB
(5th Dist.
1987),
162
Ill.App.3d 801,
516 N.E.2d 804.)
Petitioners assert that the Village of McCook lacked
jurisdiction because the notice and filing requirements of
Section 39.2 were not satisfied by the applicant.
Petitioners
argue that the notice did not contain the information required by
Section 39.2(b).
(Pet.
Br.
at 7.)
Petitioners assert that the
notice was deficient because it did not separate the two proposed
facilities and did not sufficiently describe the proposed
activities at the facilities to place interested parties on
notice.
(Pet.
Br. at 7.)
Petitioners also argue that the
applicant when filing its application did not include materials
submitted to the Agency as required by 39.2(c).
(Pet.
Br. at 8.)
6
News~a~erNotice
Petitioners claim that by publishing a single notice to
cover the two facilities
(waste wood processing facility and
electric cogeneration project) the public was unable to ascertain
where one facility left off and the other began or to determine
the activities proposed for each facility.
(Pet.
Br. at 10.)
Petitioners assert that the notice did not inform the public that
the proposed facility was an incinerator.
(Pet.
Br.
at 11.)
Petitioners assert that “cogeneration” was used to describe the
proposed facility to intentionally mislead the public.
(Pet.
Br.
at 11.)
Petitioners also assert that the notice did not notify the
public that the facility would include a 300 foot smokestack.
(Pet.
Br. at 11.)
Petitioners observe that the notice did not
mention that the facility would generate sufficient steam to
serve all the needs of the GM—END facility.
(Pet.
Br. at 12.)
Petitioners contend that this is a central focus of the request,
the applicant’s presentation and the Village’s decision and
should have been included in the notice.
(Pet.
Br. at 12.)
The
petitioners also assert that the notice did not mention any of
the specific units proposed for either facility and therefore the
public was not on notice of the particular aspects of the project
that would prompt public involvement.
(Pet.
Br. at 12.)
In
addition, petitioners observe that the notice did not mention
that the facility would generate more than 50 tons of waste ash
daily.
(Pet.
Br. at 12.)
Petitioners contend that it was
unreasonable for the applicant to tout the putative benefits of
the project in the notice and ignore the drawbacks.
(Pet.
Br. at
12.)
Several members of the public, at the Board’s hearing and in
public comments, reported that they were not aware of the
proposed project or the hearings before the Village Board and
therefore did not participate at the Village Board hearing.
Public comments have also asserted that the
Daily Southtown
Newspaper
in which the notice was published,
is not circulated in
the area surrounding the proposed facility.
(Pet.
Br. at 13.)
Respondent states that the requirements of Section 39.2(b)
were met by the notice published by MCS.
They assert that the
legal and narrative description of the property, name and address
of the applicant,
probable life of the proposed facilities, date
of intended filing with the Village and description of the public
participation process in hearings and the comment period were
adequate.
Respondents describes the notice as more detailed than
necessary for including the request for approval of two
facilities; one as a waste wood processing facility and one as a
wood fired electric cogeneration project.
7
Respondent submitted a memorandum from the
Daily Southtown
indicating that McCook and Summit are within the circulation area
of the
Daily Southtown,
(Resp. Br. Exhibit
D)
as well as several
newspaper articles on the proposed site published prior to
hearing in the
Suburban Life Citizen;
West Cook Press,
Countryside Edition
and the
Des Plaines Valley News.
In Madison County Conservation Alliance v. Madison County
(April
11,
1991)
PCB 90-239, the Board found the language in the
notice was sufficient where the applicant published a single
notice describing a 210 acre regional pollution control facility
as follows:
“The proposed facility is a comprehensive waste
management center including the following units:
material recovery-facility,
fuel pelletizing and waste
baling,
landscape waste composting,
bale storage and
future waste to energy facility.”
(Id.
at 4.)
Thus the Board did not require that the applicant describe in
great detail the respective size and location of each element of
the comprehensive waste management facility.
In the present
case, respondent filed a single application for a waste wood
processing facility and an electric cogeneration project.
The
Board finds that the information provided by the applicant meets
the statutory requirements of Section 39.2 and is sufficient to
provide the Village Board with jurisdiction for siting approval.
Petitioners further argue that the failure to describe the
cogeneration facility as an incinerator constitutes
a failure to
clearly inform the public of the nature of the proposed facility,
thereby depriving the Village Board of jurisdiction.
Citing
again to Madison County,
the Board stated:
“However, use of the words “bale storage” and “storage area”
for the more commonly used term “landfill” could result in
some public misunderstanding.
Generally,
less commonly used
expressions should be avoided in public notices.
Notwithstanding,
the Board concludes that the notice was not
so confusing or misleading that jurisdiction should be
denied on this basis.”
(Id.
at
5.)
The notice in Madison County also referred to a “future waste to
energy facility”, by which the applicants in that case meant to
describe an incinerator that burned municipal waste to generate
electricity, much as the McCook applicants intend to burn waste
wood to generate electricity.
While the admonition against use
of technical jargon in describing proposed facilities is
8
repeatable here,
the Board is not convinced that the notice was
confusing or misleading to the public so as to deny jurisdiction
to the Village Board.
Petitioners also claim that the notice was deficient for
failing to make the public aware that there would be a 300 foot
stack, that steam generated would be used by GM-END, what
specific units of the proposed facilities would be regulated
under environmental laws and regulations, and that the facility
would generate 50 tons of ash per day.
To quote the court
in
Tate v.
IPCB,
188 Ill. App.
3d 994, 544 N.E.
2d 1176
(4th Dist.
1989)
:
“The purpose of the notice is obviously to notify
interested persons of the intent to seek approval to
develop a new site or to expand an existing facility.
The notice is sufficient
if
it is in compliance with
the statute and it places potentially interested
persons on inquiry about the details of the activity.
The notice itself need not be so technically detailed
as to raise unnecessary concerns among local residents
and the general public.
Clearly, the statute does not
require the notice to be so technical that only an
engineer would understand it.”
The Board finds that the notice as published provided sufficient
information of the proposed facility for purposes of
jurisdiction.
Another issue of jurisdiction regards the publication by
respondent of their notice to file the application in the
Daily
Southtown Newspaper.
The jurisdictional requirement of Section
39.2(b) are that notice “...shall be published in a newspaper of
general circulation in the county in which the site is located.”
The
Daily Southtown Newspaper
is a newspaper of general
circulation within the County of Cook, where respondent seeks to
construct their facilities.
The jurisdictional requirements of
the Act are met.
Whether it is fundamentally fair to publish
notice in a newspaper whose circulation may not include the
surrounding communities is discussed below.
The Board finds that the published legal notice in the
Daily
Southtown Newspaper
was adequate to confer jurisdiction on the
Board of Trustees of the Village of McCook.
Content of Application
The petitioners claim that the applicant did not fulfill the
filing requirements of Section 39.2(c) because documents that the
applicant submitted to the Agency were not included in the
application.
(Pet.
Br. at 13.)
In particular, petitioners refer
to documents on air emissions that were provided to the Agency by
9
the applicant.
(Pet.
Br. at 15.)
Petitioners contend that these
documents were submitted to the Agency prior to the filing of the
original siting application by the applicant in February 1995.
(Pet.
Br. at 15.)
The petitioners claim that the failure to
include this documentation in the application was unfair, and
deprived the Village of jurisdiction to review the siting
application due to MCS’s reliance on the material at hearing and
the questions raised at hearing concerning emissions.
(Pet.
Br.
at 17.)
Respondent argues that the air emission testing protocol
referred to by petitioners was not “submitted” to the Agency
within the legal meaning of that term,
or,
in the alternative,
that the requirement for inclusion of documents filed with the
Agency is procedural, not jurisdictional.
Respondent argues that
to submit a document is “To commit to the discretion of another.”
(Resp.
Br.
at 13).
Once the protocol was in the hands of the Agency,
it was
certainly within the discretion of the Agency to review,
comment,
or to reject the document.
The Board finds that the protocol
document was surely “submitted”
to the Agency prior to the filing
of the application by the applicant.
However, the question
before the Board is whether the failure to include the documents
submitted to the Agency with the application for siting deprived
the Village Board of jurisdiction to review the siting
application.
Section 39.2(c)
requires that “An applicant shall file a
copy of its request...and
(2)
all documents,
if any, submitted as
of that date to the Agency pertaining to the proposed facility.”
The air sampling protocol for the testing of the existing stack
on the boilers at General Motors END was submitted to the Agency
by the respondent so that the testing data derived could be used
by respondent at hearing to demonstrate an estimated reduction in
actual emissions if the proposed project was approved.
The
sampling protocol, however, was for the existing stacks at GM—
END, not for a similar burner as planned if siting approval
is
obtained for the site.
The data derived from the sampling
(not
the sampling protocol) was used at hearing.
The sampling
protocol merelystates the types of equipment to be used, the
analyses that will be run, and the methodologies to be used by
the lab.
It is merely the “cookbook” by which the data is
derived.
The nexus between the existing stack sampling protocol
and the proposed facility is insufficient for the Board to hold
that the failure to provide this document to the Village deprived
the Village Board of jurisdiction to decide the siting matter.
FUNDAMENTAL
FAIRNESS
Section
40.1 of the Act requires the Board to review the
proceedings before the local decisionmaker to assure fundamental
10
fairness.
In E
& E Hauling
(2d Dist.
1983),
451 N.E.2d 555, the
appellate court found that although citizens before a local
decisionmaker are not entitled to a fair hearing by
constitutional guarantees of due process, procedures at the local
level must comport with due process standards of fundamental
fairness.
The court held that standards of adjudicative due
process must be applied.
(E &
E Hauling (2d Dist.
1983),
451
N.E.2d at 564; see also Fairview Area Citizens Task Force
(FACT)
v. Pollution Control Board
(3d Dist.
1990),
144
Ill. Dec.
659,
555 N.E.2d 1178.)
Due process requires that parties have an
opportunity to cross—examine witnesses, but that requirement is
not without limits.
Due process requirements are determined by
balancing the weight of the individual’s interest against
society’s interest in effective and efficient governmental
operation.
(Waste Management of Illinois Inc.
V.
Pollution
Control Board
(2d Dist.
1988),
175 Ill.App.3d 1023,
530 N.E.2d
682,
693.)
The manner in which the hearing is conducted, the
opportunity to be heard, the existence of ex parte contacts,
prejudgment of adjudicative facts, and the introduction of
evidence are important,
but not rigid,
elements in assessing
fundamental fairness.
(Hediger v.
D
& L Landfill,
Inc.
(December
20,
1990), PCB 90-163.)
Siting procedures are not entitled to
the same procedural protections as more conventional adjudicatory
proceedings.
(Southwest Energy v. PCB
(4th Dist.
1995),
655 N.E.
2d 304.)
Petitioners contend that the proceedings were fundamentally
unfair for the following reasons:
1.
notice was published in a newspaper not generally
circulated in the suburbs surrounding NcCook;
2. the siting application lacked the necessary information
to inform the public and allow meaningful participation at the
public hearing;
3. the siting application misrepresented the scope of the
project in a manner that was misleading and fundamentally unfair;
4.
the applicant was not correctly identified in the
application;
5.
the Village rushed to a final decision;
6.
the petitioners were deprived of a reasonable
opportunity to cross examine witnesses;
7.
the Village had entered into a memorandum of intent for
issuance of economic development bonds and were negotiating a
host community agreement with the applicant.
11
The petitioner also asserts that the cumulative effect of its
challenges to fundamental fairness result in the proceedings
being fundamentally unfair.
In addition to the petitioners’ claim that the local siting
hearing was fundamentally unfair, many of the public comments
received by the Board claim that the hearings were unfair because
the hearings were held during the day when many people were not
able to attend.
Publication of Notice
Petitioners and some public comments stated that publication
of notice in the
Daily Southtown Newspaper
was fundamentally
unfair because the Chicago edition of that newspaper states its
boundaries of circulation to include the area south of Interstate
Highway 55.
The Village of McCook, the petitioners, and most of
the public commenters are located north of Interstate 55.
Respondent includes notice from the
Daily Southtown
Newspaper
stating that the Villages of NcCook and Summit are
within the circulation boundaries of the newspaper.
Respondent
also points to the notice of the siting hearings published by the
Village in the
Des Plaines Valley News.
(Resp. Br.
at 9.)
Respondent also includes several newspaper articles published in
local newspapers prior to the hearings by the Village with their
brief.
The Board has already found that the notice published in the
Daily Southtown Newspaper
satisfied the statutory requirements to
confer jurisdiction on the Village.
When reviewing the notice
for fundamental fairness, the question before the Board is
whether the notice was sufficient to provide interested parties
with notice of the proceedings.
While the
Daily Southtown
Newspaper
does have a limited general circulation,
its
circulation does include at least a portion of the area
surrounding the proposed facility.
There is nothing in the
record to indicate that notice was published in the
Daily
Southtown Newspaper
to limit the extent of notice provided.
The
Board finds that the publication notice of the filing of an
application for siting by respondent
in the
Daily Southtown
Newspaper
was not fundamentally unfair where the statutory notice
requirements are satisfied and the paper is circulated in the
area of the facility.
In addition, the Board observes that while members of the
public claimed to be unaware of the proceedings, notice of the
Village’s hearing and articles of the facility appeared in other
publications.
The hearings were separately noticed in a
newspaper widely distributed in the areas affected and there were
several newspaper articles in local newspapers calling the
12
attention of the public to the pending applications and hearings.
Content of Application
Petitioners assert that the applicant is required to make a
prima lade
demonstration of compliance with each of the nine
criteria in its request for siting approval.
(Pet.
Br.
at 19.)
The petitioners contend that the failure by the applicant to
include the necessary information regarding five of the criteria
deprived petitioners of any meaningful opportunity for
participation at hearing.
(Pet.
Br. at 25.)
In particular,
petitioners assert that the application failed to make a
prima
facie
demonstration of compliance on criteria
1,
2,
3,
5 and 6.
(Pet.
Br.
at 25.)
Respondent asserts that the application as filed contained
information that demonstrated compliance with the criteria.
(Resp.
Br.
at 27.)
Respondent further states that a
prima facia
case on the criteria is not required by the Act or by Board or
court precedent at the time of filing the siting application.
In Tate v. Macon County Board
(188 Ill.App.3d 994, 544
N.E.2d 1176
(PCB 88-126)), the Board specifically stated that:
“an abbreviated siting application
(one without technical
supporting documents)
is acceptable where, as here,
such
materials were available prior to the close of the hearing
process”.
(Tate at 94 PCB 79.)
In Town of St. Charles
v. Kane
County Board and Elgin Sanitary District
(PCB 83-228,
229,
230,
57 PCB 203
(March 21,
1984),
vacated on other grounds
sub. nom.
Kane County Defenders v. PCB et al.,
129 Ill. App. 3d 121,
472
N.E.2d 150
(3rd Dist.
1984)), the Board upheld a siting
application which was only two pages in length when filed.
In
each of the above cited cases,
additional data was filed either
at hearing, or prior to hearing, which supported the initial
application.
(See also Concerned Citizens for a Better
Environment v. City of Havana
(May 19,
1994)
PCB 94-44.)
The amended petition filed by NCS contained fifteen pages of
text and included seven exhibits.
(C38-C74.)
NCS presented
testimony at the siting hearing and additional documentation
in
support of the application.
Therefore,
the Board finds that the
application as filed and later supplemented at the siting hearing
did not render the proceeding fundamentally unfair.
Misrepresentation
Petitioners contend that the minimal information included in
the application misled the Village, the petitioners and the
public.
(Pet.
Br.
at 28.)
In particular, the petitioners observe
that the siting application represents that the wood burning
incinerator would provide the steam needed to meet GM’s needs and
the two ancillary gas fired boilers would be on standby to
13
provide backup steam and meet peak demand requirements.
(Pet.
Br.
at 28)
The petitioners contend that this representation is
false as the Heat Balance diagram
(Ex.
12) shows that the
incinerator will provide little if any steam.
(Pet.
Br.
at 28.)
petitioners assert that the diagram and testimony of Glenn Wetnik
establish that the claimed reduction in emissions is not being
provided by the incinerator but rather by the natural gas fired
boilers.
(Pet. Br. at 32.)
Respondent counters with the affidavit of Lawrence S.
Joachim.
(Resp. Br. Attachment A.)
He states that the Heat
Balance diagram in question was prepared by SFT,
Inc., under his
general direction.
(Id.)
Mr. Joachim states that the drawing
shows no steam available for GM because the extreme operating
conditions include the possibility of the wood burner operating
during summer shut-downs of the GM plant.
(Id.)
He states that
the steam flow to GM will be on a demand basis, and the design of
the electrical generating equipment has to allow for all steam
generated to flow through the turbine loop to generate
electricity.
To do otherwise would result in shut down of the
waste wood burner during GM shut—down periods,
or the waste of
steam that could be used to generate electricity.
(Id.)
Since Mr. Joachim was not available to testify at the
hearing before the Board,
and therefore not available for cross
examination, the Board must determine what weight,
if any,
it
will afford to the statements of Mr. Joachim.
Whether treated as
testimony or a public comment,
Mr. Joachini correctly states that
good engineering practice requires design of
a facility must
include the worst case conditions of heat and steam flow.
In the
design of a turbine/electrical generating system, that includes
total steam flow through the turbine.
Economic and energy
considerations make the waste of steam or the curtailing of
operations during planned shut downs at GN—EMD unreasonable as
alternate designs in sizing the generating unit.
The Board finds that the explanation of Mr. Joachim is
reasonable, and that the application of MCS was not fundamentally
unfair or misleading in describing the uses of steam in the
proposed facility.
Identity of Applicant
The notices and the siting application identified the sole
“applicant” as MCS.
(C41
& C74.)
The siting request also stated
that Waste Wood Recovery Facility
(WWRF) will lease a portion of
the property from the named applicant and will develop the waste
wood processing facility.
(C41.)
WWRF
is owned 50-50 by the
applicant’s parent company and by HUE, L.L.C.,
a subsidiary of
HUE, Inc.
(Id.)
HUE Inc.
is identified as the long-term operator
of the facility.
(Id.)
Petitioners contend that by failing to
include WWRF and HUE Inc.
as coapplicants the public, petitioners
14
and the Village were precluded from considering the operating
history of the real parties who will be developing and operating
the waste wood recovery facility when challenging and considering
criteria
2 and 5.
(Pet.
Br.
at 32.)
Respondent states that the
sole true applicant was identified, and the petitioners and the
Village were able, through the disclosure of the contractual
arrangements with other parties, to make inquiry into the
operational histories of the other identified entities.
(Resp.
Br. at 39.)
The Board finds that identification of the parties that will
be operating portions of the facility under the applicant’s
control is sufficient to allow interested parties, including the
local decisionmakers,
to inquire into the operating histories of
the respective entities.
Failure to name all such parties as co—
applicants does not render the application and approval process
fundamentally unfair.
Village Rush to Final Decision
The petitioners contend that the matter was improperly
pushed to decision as quickly as possible
-
more than 120 days
earlier than the statutory deadline.
(Pet.
Br. at 34).
Petitioners maintain that this rush to decision deprived the
petitioners and the public of any meaningful opportunity to
participate in the proceedings.
(Pet.
Br.
at 34.)
Pursuant to Section 39.2(e) the filing of an amended
petition extends the decision deadline by an additional 90 days.
Thus, when the applicant filed its amended petition, the decision
deadline was extended to November 18,
1995.
Petitioners contend
that neither the Village nor the applicant informed the public of
the extended deadline and suggest that a concerted effort was
made to conceal the fact that more time was available.
(Pet.
Br.
at 35.)
petitioners contend that it would have benefited by the
additional time in which to prepare responses to the evidence
presented by the applicant at hearing.
(Pet.
at 39.)
Respondent notes that the extension of the decision deadline
occurs by operation of law
(Resp. Br.
at 40), that petitioners
did not request additional hearing dates
(Resp. Br. at 43), and
that, though the decision deadline is automatically extended by
the filing of an amended application, the 30-day post hearing
comment period is not.
(Resp. Br. at 41.)
The Board has previously noted the wealth of case law
establishing that before an inquiry can be made into the
decisionmaker’s mental processes when a contemporaneous formal
finding exists, there must be a strong showing of bad faith or
improper behavior.
(Dimacigio v.
Solid Waste Agency of Northern
Illinois
(January 11,
1990), PCB 89—138 at 5;
City
of
Rockford
v.
Winnebago County (November 19,
1987), PCB 87—92 at
9
citations
15
omitted).)
In their adjudicative role, the decisionmakers are
entitled to protection of their internal thought processes.
(Dima~ciioat 5.)
Consequently, without adequate facts warranting
an inference that fundamental unfairness may have occurred in the
hearing process, the Board will not unnecessarily invade the
proper realm of the Village trustees.
(Diiuaagio
v.
Solid Waste
Agency of Northern Cook County (October 24,
1989), PCB 89-138 at
7—8.)
The Board notes that the record was properly closed in this
case,
that the case was ripe for decision, and that the statutory
decision deadline is a requirement to decide a case ~y a date
certain, not a statutory prohibition against deciding a case that
is ripe for decision prior to that date certain.
The Board finds that the Village Board made a timely
decision on the merits of the application for siting,
as required
by the Act.
The timing of that decision was not fundamentally
unfair.
Cross—Examination
Pursuant to the Rules established by the Village, all cross
examination questions were to be submitted in writing to the
hearing officer.
(C83.)
The hearing officer would determine if
the question was relevant or duplicative before directing the
question to the witness.
(C86.)
Petitioners assert that the Village’s rules on cross
examination stifled meaningful or effective cross examination of
the applicant’s witnesses by the public.
(Pet.
Br.
at 41.)
Petitioners testified that they would have benefitted from being
allowed to direct cross examination to witnesses especially
concerning follow up or clarification questions.
(Tr.
67—71,
216—
217,
226-227.)
Petitioners further assert that the limitations
on cross examination deprived petitioners of a meaningful
opportunity to participate in the hearing.
(Pet.
Br. at 45.)
A similar issue was raised in Daly v. Village of Robbins
(July
1,
1993),
PCB 93—52, PCB 93—54.
In Daly,
petitioners
claimed that the hearing officer’s “arbitrary jettisoning of
cross-questions” violated their right of public participation and
made the hearing fundamentally unfair.
The Board held that
public participation was not thwarted so as to make the hearing
fundamentally unfair where the hearing officer informed
participants that duplicative or irrelevant questions would not
be asked, wrote the reason for not asking the question on the
form,
and where any questions not asked were more fully explained
in supplemental information supplied to the village.
(See also Michael Turlek et.al.
v. Village of Summit
(May 5,
1994), PCB 94—19 cons.
PCB 94—21,
PCB 94—22.)
16
In this case, the record indicates that numerous questions
were submitted by members of the public and asked by the hearing
officer at the Village Board hearing.
In some cases, the hearing
officer held questions for later witnesses that were better able
to answer, and in some cases, the stated rule against verbal
questioning by members of the public was bent
-
follow up
questions asked verbally were allowed.
The procedures for cross—examination of witness at the
hearing before the Village was similar to the procedures used in
Daly and Turlek.
The record in this case does not support a
finding that the procedures for cross examination of witnesses at
the Village Board hearing were fundamentally unfair.
Bond Issue and Host Community Agreement
The Village and MCS entered into a Memorandum of Intent that
provided “t)hat
the Village will subject to a sale of the Bonds
on terms satisfactory to MCS and the Village,
authorize,
issue,
sell and deliver its economic revenue bonds
in an amount not to
exceed $90,000,000 (the Bonds)
and apply the proceeds therefrom
to the payment of the Project”.
(Pet. Exh.
4.)
The Village also
entered into a host community agreement with MCS for the siting
of the proposed facilities.
(Pet.
Exh.
5.)
Petitioners allege
that failure to include these agreements in the siting record
renders the decision of the Village Board fundamentally unfair
because opponents of the siting could not inquire about the
possibility of ex-parte contacts, or prejudgment of the project.
Respondent notes that there is no statutory requirement or
Board rule that requires inclusion of such records in the siting
record.
Respondent further notes that no prejudice has been
demonstrated by petitioners.
(Resp.
Br. at 50.)
The appellate courts have held that the existence of a
preannexation agreement, with a potential economic benefit to a
village, does not show predisposition of a local decisionmaker.
(FACT,
555 N.E.2d 1178;
Woodsinoke Resorts,
Inc. v. City of
Marseilles
(3d Dist.
1988),
174 Ill.App.3d 906,
529 N.E.2d 274.)
In Gallatin National v. The Fulton County Board
(June 15,
1992),
PCB 91-256,
134 PCB 245, the Board found that the issuance
of bonds was a permissible preliminary step and did not indicate
predispoition or bias.
The Board find that the facts
in the
present case are similar to the facts in Gallatin.
As the
existence of a bond agreement does not indicate predisposition or
bias, the Board finds it unnecessary to require that documents
relating to such agreements be included in the record.
Petitioners have failed to demonstrate that the failure of
the respondent to include documents relating to the host
community agreement or the bond issue have been prejudicial.
The
17
Board does not find that the failure to include these documents
rendered the hearing before the Village of McCook fundamentally
unfair.
Daytime Hearings
Many public comments raise the issue that the hearings were
held only during normal business hours thus limiting the
availability of many members of the public from participating or
attending.
The Board has previously held that hearings held during
normal business hours meet the requirements of fundamental
fairness as long as they are consistent with the published legal
notice required under section 39.2(d)
of the Act.
(See Citizens
for a Better Environment v. NcCook (March 25,
1993), PCB 92-198,
PCB 92-201.)
We find nothing in this case which would have us
depart from our prior rulings on this issue.
Therefore, we find
that hearings conducted during normal business hours comport with
fundamental fairness.
(See also Michael Turlek et.al.
v. Village
of Summit
(May
5,
1994),
PCB
94—19
cons.
PCB 94—21,
PCB 94—22.)
Cumulative Effect
In finding that none of the elements cited by petitioners as
fundamentally unfair rise to the level of fundamental unfairness
that would cause remand or reversal of the Village of NcCook, the
Board also finds that the cumulative effect of those elements was
not so fundamentally unfair as to taint the proceedings before
the Village Board.
CHALLENGED CRITERIA
At the local
level, the siting process is governed by
Section 39.2 of the Act.
Section 39.2(a) provides that local
authorities are to consider as many as nine criteria when
reviewing an application for siting approval.
These statutory
criteria are the only issues which can be considered when ruling
on an application for siting approval.
If the local body
finds that all criteria are satisfied,
siting approval must be
granted.
When reviewing a local decision on the criteria, this Board
must determine whether the local decision is against the manifest
weight of the evidence.
(McLean County Disposal,
Inc. v. County
of McLean
(4th Dist.
1991),
207 Ill.App.3d 352,
566 N.E.2d 26,
29; Waste Management of Illinois, Inc.
v. Pollution Control Board
(2d Dist.
1987),
160 Ill.App.3d 434, 513 N.E.2d 592; E
& E
Hauling.
Inc.
v. Pollution Control Board
(2d Dist.
1983),
116
Ill.App.3d 586,
451 N.E.2d
555, aff’d
in part
(1985)
107 Ill.2d
33,
481 N.E.2d 664.)
A decision is against the manifest weight
of the evidence if the opposite result
is clearly evident, plain,
18
or indisputable from a review of the evidence.
(Harris v. DaY
(4th Dist.
1983),
115 Ill.App.3d 762, 451 N.E.2d 262,
265.)
The
Board, on review,
is not to reweigh the evidence.
Where there
is
conflicting evidence, the Board is not free to reverse merely
because the lower tribunal credits one group of witnesses and
does not credit the other.
(Fairview Area Citizens Taskforce
(FACT)
v. Pollution Control Board
(3d Dist.
1990),
198 Ill.App.3d
541,
555 N.E.2d 1178,
1184;
Tate v. Pollution Control Board (4th
Dist.
1989),
188 Ill.App.3d 994,
544 N.E.2d 1176,
1195; Waste
Manaaement of Illinois, Inc.
v. Pollution Control
Board
(2d
Dist.
1989),
187 Ill.App.3d 79,
543 N.E.2d 505,
507.)
Merely because
the local government could have drawn different inferences and
conclusions from conflicting testimony is not a basis for this
Board to reverse the local government’s findings.
(File v. D
&
L
Landfill,
Inc.
(August 30,
1990), PCB 90—94
,
aff’d File v. D
& L
Landfill,
Inc.
(5th Dist.
1991),
219 Ill.App.3d 897,
579 N.E.2d
1228.
In this case, petitioners have raised challenges to the
Village’s decisions on criteria
1,
2 and
~•4
Criterion
1
-
Need
Section 39.2(a)
provides that a local decisionmaker must
determine whether the proposed facility is necessary to
accommodate the waste needs
of the area it
is intended to serve.
The applicant is not required to show absolute necessity in
order to satisfy criterion
1.
(Fairview Area Citizens Taskforce
v. PCB, 555 N.E.2d at 1185,
citing Tate
V.
Macon County Board,
544 N.E.2d 1176; Clutts v. Beaslev (5th Dist.
1989),
185 Ill.
App.
3d 543,
541 N.E.2d 844, 846
; A.R.F.
Landfill.
Inc.
v. PCB
(2d Dist.
1988),
174 Ill.App.3d 82,
528 N.E.2d 390,
396; Waste
Management of Illinois v. PCB
(3d Dist.
1984),
122 Ill.App.3d
639,
461 N.E.2d 542,
546.)
The Third District has construed
“necessary”
as connoting a “degree of requirement or
essentiality” and not just “reasonably convenient”.
(Waste
Management of Illinois v.
PCB, 461 N.E.2d at 546.)
The Second
District adopted this construction of “necessary” with the
additional requirement that the applicant demonstrate both an
urgent need for, and the reasonable convenience of,
the new
facility.
(Waste Management of Illinois v. PCB (2d Dist.
1988),
530 N.E.2d 682,
689; A.R.F.
Landfill,
Inc.
v. PCB, 528 N.E.2d at
396; Waste Management of Illinois v. PCB
(2d Dist.
1984),
463
N.E.2d 969,
976.)
Petitioners assert that the Village’s finding on criterion
1
is against the manifest weight of the evidence for two reasons.
The petition for review also challenges criterion
3 but
petitioners elected not to proceed with this argument.
(Pet.
Br.
at 60.)
19
First,
the petitioners contend that the decision on criterion
1
was against the manifest weight of the evidence because the
Village failed to consider evidence in the record of the landfill
and incinerator capacity currently available and being developed
in the area.
(Pet.
Br. at 60.)
Second, petitioners argue that
the Village’s decision on criterion 1 was against the manifest
weight of the evidence because the applicant did not demonstrate
need for a wood processing facility in the area.
(Pet.
Br. at
60.)
Petitioners contend that the record clearly establishes that
the current existing capacity is sufficient to meet the waste
needs of the area.
(Pet.
Br. at 61.)
Petitioners reference the
testimony of MCS’s expert witness, Ms. Conklin and the government
reports submitted at the Village hearing to show that the record
demonstrates that there are 9-11 years
of landfill capacity left
in the area.
(Pet.
Br.
at 61.)
In addition, petitioners contend
that the Village failed to consider evidence in the record on
other facilities
in the process of being developed in the area.
(Pet.
Br. at 2.)
Petitioners also assert that the applicant only presented
data on the need for wood processing facility for four counties
and not all nine counties that comprise the service area.
(Pet.
Br. at 63.)
The testimony presented by the applicant’s expert
witness provided data on waste wood generated in only four
counties.
(Pet.
Br. at 63.)
In response, MCS asserts that the Village articulates
numerous reasons
in support of its decision on criterion
I which
are fully supported by the testimony.
(Resp.
Br. at 55.)
MCS
further asserts that petitioners have mischaracterized the
testimony as stating that there is 9-11 years of landfill
capacity left.
(Resp.
Br. at 57.)
MCS contends that the
testimony states that there were
7 years left in 1993 which would
translate to two years left when the facility commences
operation.
(Resp. Br.
at 57.)
NCS contends that petitioners have
presented no evidence to show that the Village failed to consider
facilities under development.
(Resp.
Br.
at 58.)
MCS also states
that the study performed by its expert witness used data of waste
wood production from four counties and the expert’s opinion that
the other counties in the service area would significantly
increase the amount of waste wood available.
(Resp. Br.
at 60.)
The Board finds that petitioners have not proven that the
Village’s decision on criterion 1 was against the manifest weight
of the evidence.
There is sufficient evidence in the record to
support the Village’s finding.
The applicant presented evidence
on the expected landfill capacity and the generation of waste
wood in the service area.
There is no evidence to support the
contention by petitioners that the Village did not consider all
the evidence when deciding on criterion
1.
20
Criterion
2
-
Public Health,
Safety and Welfare and
Criterion 5
-
Fire,
Spills and Other Accidents
Section 39.2(a) provides that the local decisionmaker must
determine whether the proposed facility is so designed, located,
and proposed to be operated that the public health,
safety, and
welfare will be protected (criterion 2).
Section 39.2(a) also
requires the local decisionmaker to determine whether the plan of
operations for the facility is designed to minimize the danger to
the surrounding area from fire, spills, or other operational
accidents (criterion 5).
Petitioners contend that the Village abrogated its statutory
responsibility to review the application on criteria 2 and 5
because the Village deferred to the other governmental agencies
on these issues.
(Pet.
Br.
at 67.)
Petitioners contend that the
applicant did not include technical information in its
application and specifically invited the Village to defer to the
Agency on technical decisions.
(Pet.
Br. at 67.)
In addition,
petitioners observe that MCS’s witness stated that emergency
response plans and operational plans would be developed and
submitted to the Agency but these plans were not detailed at
hearing and were not reviewed by the Village.
(Pet.
Br. at 71.)
MCS contends that technical details were presented regarding
criterion 2.
(Resp.
Br. at 61.)
MCS further maintains that the
petitioners have mischaracterized the Village’s decision and that
the Village was entitled to consider evidence regarding future
regulatory review.
(Resp.
Br.
at 63.)
NCS contends that the
petitioners ignore the reasons given by the Village in support of
its decision.
(Resp. Br.
at 66.)
The Board finds that there is sufficient technical
information in the record on which the Village could base its
decision on criteria
2 and 5.
Petitioners have failed to show
that the Village’s decision on criteria
2 and 5 is against the
manifest weight of the evidence.
The Village’s decision
recognizes that other agencies will be reviewing the facility
relative to these criteria and then goes on to explain the
evidence that supports its decision that the applicant has
satisfied criteria
3 and 5.
The Village Board did not merely
defer to other agencies on these criteria but reviewed the
evidence for these criteria.
The Board has previously held that the local governing Board
may place some reliance on
the Illinois Environmental Protection
Agency’s
(Agency) permit review process where the applicant has
presented a
prima facie
case on the criterion.
(Gallatin National
Co.
v. Fulton County Board
(June
15,
1992), PCB 91-256,
134 PCB
245; City of Geneva v. Waste Management of Illinois (July 21,
1994) PCB 94-58.)
The Board finds that the Village did not
inappropriately abrogate its decision authority by placing some
21
reliance on the Agency’s permitting review process and review by
other governmental agencies.
CONCLUSION
As stated above, the Board finds that the Village of McCook
properly exercised jurisdiction in this case and that the
proceedings before the Village of McCook were not fundamentally
unfair.
The Board further finds that none of the decisions made
on the criteria of Section 39.2(a)
of the Act were against the
manifest weight of the evidence.
This opinion constitutes the Board’s finding of fact and
conclusions of law.
ORDER
The July 27,
1995 decision of the Village of McCook granting
siting approval for pollution control facilities to McCook
Cogeneration Station, L.L.C.,
is hereby affirmed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1994)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35 Ill.
Adnt.
Code 101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify,that the above ,qpinion and order was
adopted on the
7
~
day of~7(~-C
,
1995,
byavoteof
~
.
Ii
Control
Board
