BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD ~
~
~
1~_~
~L
CLERK~SOFFICE
LANDFILL33,LTD.,
)
)
JAN
1
0Z003
Petitioner
)
)
STATE OF ILLINOIS
)
PCBD3.-43
Pollution
Control Board
)
(Third-Party Pollution Control
EFF1NGHAM COUNTY BOARD
and
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
)
STOCK &
COMPANY, LLC,
)
)
Petitioner,
)
)
v.
)
PCB 03-52
)
(Third-Party Pollution Control
EFFINGHAM COUNTYBOARD and
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
(Consolidated)
)
Respondents.
)
NOTICE OF FILING
TO:
Ms. Dorothy M.
Gunn
Bradley P. Halloran, Esq.
Clerk ofthe Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution
Control Board
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, Illinois
60601
Chicago, Illinois
60601
(VIA AIRBORNE EXPRESS)
(VIA AIRBORNE EXPRESS)
(SEE PERSONS ON ATTACHED LIST)
PLEASE TAKE NOTICE that I have today served
for filing with the Office ofthe
Illinois Pollution Control Board an original
and nine copies ofSTOCK & COMPANY,
LLC’ S BRIEF iN SUPPORT
OF ITS PETITION
FOR
REVIEW
OF
THE EFFINGHAM
COUNTY BOARD’S DECISION APPROVING SITING FOR SUTTER SANITATION
TifiS FILING
SUBMFFTED ON RECYCLED PAPER
SERVICE, iNC.’S TRANSFER STATION attached herewith, copies ofwhich are
herewith served upon you.
Respectfully submitted,
STOCK &
COMPANY,
LLC
Petitioner,
By:
.~
-
One ofIts Attorneys
Dated:
January 9,
2003
Christine G. Zeman
David M. Walter
HODGE
DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
T
CERTIFICATE OF SERVICE
I, David M. Walter, the undersigned, hereby certify that I have served the attached
STOCK &
COMPANY, LLC’S BRIEF IN SUPPORT OF ITS PETITION FOR
REVIEW OF THE EFF1NGHAM COUNTY BOARD’S DECISION APPROVING
SITING FOR SUTTER SANITATION SERVICE, INC.’S
TRANSFER STATION
upon:
Ms. Dorothy M.
Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
Edward C.
Deters, Esq.
Effingham County State’s Attorney
County Office Building
101 North Fourth
Street, Suite 400
Effingham,
Illinois
62401
Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution
Control.Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
via Airborne Express in
Springfield,
Illinois,
on January 9,
2003,
for delivery to the
above-referenced persons on January 10, 2003,
at 10:30 a.m.,
and will serve upon:
Charles Jones Northrup, Esq.
Attorney for
Suffer Sanitation Services
Sorling, Northrup, Hanna,
Cullen
&Cochran
Illinois Building,
Suite 800
Post Office Box 5131
Springfield, Illinois
62705
via hand-delivery on January
10,
2003.
Stephen F. Hedinger, Esq.
Attorney for Landfill 33, Ltd.
Hedinger Law Office
1225 South Sixth Street
Springfield, Illinois
62703
David M. Walter
STOK:OO1/Filings/NOF-COS
—
Brief in Support of Petition for Review
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LANDFILL 33, LTD.,
)
)
Petitioner,
)
v.
)
PCBO3-43
)
(Third-Party Pollution Control
EFF1NGHAM COUNTY BOARD arid
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
)
STOCK &
COMPANY,
LLC,
)
)
Petitioner,
)
v.
)
PCB
03-52
(Third-Party Pollution Control
EFF1NGHAM COUNTY BOARD and
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
(Consolidated)
)
Respondents.
)
7
STOCK & COMPANY, LLC’S BRIEF
IN
SUPPORT OF ITS PETITION FOR
REVIEW
OF
TILE
EFFI~GHAMCOUNTY BOARD’S DECISION APPROVING SITING
FOR SUTTER SANITATION SERVICE, INC.’S TRANSFER STATION
NOW
COMES the Petitioner,
STOCK & COMPANY, LLC, and
in
support ofits
Petition for Review of the Effingham County Board’s Decision Approving Siting for
Suffer Sanitation Service, Inc.’s Transfer Station, hereby states as follows:
I.
FACTS
Duane Stock manages property, and is the registered agent, for Stock &
Company, LLC (“Stock&
Co.”).
Record (“R.”) at C96.
Stock & Co.
is essentially a
holding company for family interests, and it owns farmland in Effingham County, along
County Road 25, which is commonly referred to as the Altamont-Farina blacktop.
Tr.
at
48; R.
at C10,C42.
Historically,
a dwelling has been located on
Stock& Co.’s property,
although for several years, there was not.
Tr.
at
491
Like much ofthe fertile ground that
is so characteristic ofrural Central Illinois,
the area near Stock & Co.’s farmland is predominately level and used as agricultural
cropland.
R.
at C42.
And,
like most agricultural areas in rural Central Illinois, there are
not many neighbors.
R. at Cli.
The Stock and Wharton families, who separately own
land, have long been farmers in this area, however, and
feel strongly that the safety and
agricultural character of their neighborhood should be preserved.
R.
at C424-C425.
A residence, grain elevator, grain bins, pole barns and
sheds are located to the
east, just across the road from Stock &
Co.’s property on aboutthree acres that are owned
by the Hacker family.
R. at C7, C77.
The dwelling across the road from Stock & Co.’s
property
is a large two-story frame house, complete with front pillars and
a swimming
pool.
R.
at C65,
C239.
And, historically, during the harvest season, trucks filled with
grain from area farms would bring the bounty ofthat year’s harvest to the elevator.
R.
at
C175.
Now,
Suffer Sanitation Service, Inc.
(“Sutter”) intends to bring garbage, rubbish,
and waste from a 30-mile radius and including from the City ofEffingham to the
site
instead.
R. at ClO,
C14.
On March 21, 2002,
Stock & Co received notice by
certified mail that provided,
in pertinent part, as follows:
At
the
time
ofthe
hearing
before the
Effingham County
Board (“County Board”)
that
is the subject of
this
appeal, therehad
not been a residence on that property for several years.
Tr.
at
49.
On
September 16, 2002, however, Stock
&,
Co.
submitted a letterto the
County Board by facsimile,
in
which
it stated
that
the former dwelling site had been leasedforresidentialpurposes,
and
that a
manufactured
home would soon be delivered.
R.
at C43
1.
This
letter was seen
by
the
County
Board
members, but was not considered by them in
making
their
decision.
See R.
at
C427.
2
Sutter Sanitation proposes to develop and operate
a waste transfer station
(for non-hazardous solid waste only) on approximately
3.23
acres at this
location.
The property will be used for purposes oftransferring waste from refuse
collection vehicles to transfer trailers, which will then be transferred to a
solid waste landfill for waste disposal.
The probable life ofthe waste transfer station will be in excess of20
years.
R.
at C96.-C98.
On April
19, 2002,
Suffer filed its Application for Local Siting
Approval For
Proposed Solid Waste Transfer Station (“Application”) with the County Board.
R. at C4.
The Application for Suffer’s proposed transfer station is approximately
120 pages in
length,
and includes, among other things,
some information regarding the criteria that are
set
forth in Section 39.2(a) ofthe Illinois Environmental Protection Act
(“Act”) (415
ILCS 5/39.2(a)).
~
generally, R. C4-C123.
On August 14, 2002,
a public hearing on
Suffer’s Application was held by the
County Board.
R. at C 127.
Testimony was presented by both those in support of~,and
opposed to, the transfer station.
A certified shorthand reporter recordedthe proceedings,
and afterwards, by
September 2,
2002, transcribed
her notes into written form.
R.
at
C 127; C294.
After the hearing, Stock &
Co. became very concerned about Suffer’s new
plans for the neighborhood.
R.
at C415, C427-C43 1.
At the hearing, it became clear that Suffer has not even designed a transfer station
building for this site.
R;
at C24i.
Instead, Suffer proposes to use an existing former grain
storage building, with slight modification,
as a transfer station.
R.
at C80.
A
3
recycling center will be operated in another building on site.
R.
at C190-C191.
Existing
pathways at the former elevator will be used for the transfer station as well.
R.
at C 176;
C78.
And, the grain elevator, numerous grain bins,
and propane tank currently
on site
will
remain.
R.
at C77; C 147.
Garbage trucks may be parked overnight, in one ofthe
other buildings on-site.
R.
at C23.
The two-story frame house with the front pillars and
swimming pool will be used for an office:
R.
at C19.
The actual waste transfer will occur in a pole barn, which is located right next to
three grain bins.
R.
at C242;
C77.
A propane tank and recycling building where
cardboard is stored are also located nearby.
R.
at C77; C19i;
C20.
The exterior ofthe
waste transfer building is metal, but the interior is covered with wooden boards formerly
used to contain the grain stored in the building.
R. at C242;
C265-C266.
No sprinkler system will be installed.
R. at C 168.
Although a well is presently
the
only source ofwater available for fire fighting purposes, a few fire extinguishers will
also be
available.
R.
at
C247; C24; C168.
In case of an emergency,
employees are to
contact a member of management,
and call 911.
R.
at C23.
Waste will be dumped
on the existing concrete floor ofthe building.
R.
at C20-
C2 1.
Cracks currently exist in the floor, but Suffer intends to fill those with sealant.
R.
at
C268,
C21.
At the time ofthe hearing, Suffer did not know how thick the concrete floor
was.
R.
at C266.
Nevertheless, the building was previously used to store
grain, and
“they went in with somebody’s trucks and
loaded and unloaded their grain.”
R.
at C266.
A submerged concrete loading pit will be constructed on one side ofthe building.
R.
at C79.
Semi-trailers will be parked in this concrete pit addition during loading.
R.
at
C19-C20.
Waste and leachate will also be directed towards this concrete loading pit.
4
R.
at C20-C2 1.
That area will have a sump
pump and leachate storage tank.
R.
at C2 1.
There is nothing to prevent liquids from running out the doors ofthe transfer station.
R.
at C243-C244.
Soil will be kept
on site, however,
and can be dumped in the path of any
liquids that escape.
R. at C22, C158.
The clearance betweenthe floor and rafters in the building is sixteen feet.
R.
at
C250.
Sutter’s packer trucks are newer and will be able to open their tailgates all the way
when unloading.
R.
at C264.
They will even have a few inches to
spare.
R.
at C264.
Older packer trucks and roll-offs will not be able to dump their loads as these collection
vehicles are designed, because ofthe low clearance.
R.
at C250-C25 1;
C264.
Suffer will
have someone watch such vehicles unload.
R.
at C265.
Duane Stock attended the hearing on behalfof Stock & Co, asked questions of
witnesses, and made public comments.
R.
at C170.
For example, Mr.
Stock asked what
happens when some hazardous waste does appear at the transfer station by accident.
R.
at C170.
He was told that the waste gets dumped onto the floor, and
spread out,
and that
if any items cannot be
dealt with they are loaded back up on the truck and the truck is
sent on its way.
R.
at C170.
Mr.
Stock asked Suffer’s real estate appraiser if he would be
willing to build a house across the road from the transfer station.
R.
at C183.
In
response, he was told, “I’d like to build where there’s trees, so no.”
R.
at C183.
Mr. Stock submitted a letter to the County Board expressing Stock &
Co.’s
concerns.
R.
at C41 5.
These concerns include that the transfer station will have a
negative environmental, psychological, and financial impact on the adjacent properties;
that it will limit
any
future development ofthe adjacent properties; that the area water
will be contaminated; that ownership ofthe transfer station may change and that the
5
facility may expand; that open dumping will occur on the neighboring agricultural fields
owned by Stock & Co; that nothing in the design plans addresses how liquids dumped
onto the floor will be contained.
R.
at C415-C416.
Doris Wharton Stock also expressed concerns, including that hazardous materials
may be inadvertently brought to the site;
that farm crops historically grown on the
surrounding land may be contaminated; that the design ofthe floors contains no
safeguardsto prevent waste-runofffrom occurring; that an
above-ground storage tank is
located
in close proximity to the building and driveways; and that open dumping will
occur on the neighboring farmland.
R.
at C424-425.
Another concerned citizen asked what would happen if a fire occurred, and
questioned the availability ofwater for fire-fighting purposes.
R.
at C427-C428.
An
adjoining property owner expressed great concern about the lack ofdesign measures with
regard to the building
and ground water protection, the lack ofground water monitoring,
and the rural challenges associated with emergency vehicle response times.
R.
at C426.
Minimal, if any, evidence was presented by Sutter, however, with regard to these basic
concerns.
On September
16, 2002, contrary to the manifest weight ofthe evidence, the
County Board held that Suffer had demonstrated that
all ofthe statutory criteria had
been
met.
R.
at C432-C434.
II.
THE
COUNTY BOARD’S DECISION TO APPROVE SITING IS
AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE
Based upon evidence in the Record regarding, ~
~
the transfer station’s
design and proposed operation, it is clearly evident that the County Board erred in
approving siting.
Local siting approval was iiç~iproperly granted because the applicant,
6
Suffer, did not submit sufficient details describing the proposed facility to demonstrate
compliance with each ofthe nine criteria established by statute.
~
415 ILCS
5/39.2(a).
As the applicant,
Suffer i~gç~,
the burden of demonstrating, by a preponderance of the
evidence, compliance with all nine criteria.
American Bottom Conservancy,
et al., v.
Village ofFairmont,
et. al., No. 01-159, 2001
Ill. Env. Lexis 489 at
*6 (IPCB,
Oct.
18,
2001).
Here,
not only did
Suffer fail to
make
aprimafacie
case for compliance,
undisputed credible evidence, as well as factual and expert opiniontestimony,
demonstrates that the transfer station did not meet the statutory criteria.
This is p~a case
where conflicting testimony was simply resolved by the County Board.
Instead, this
is a
case where siting approval was granted, even though the applicant failed to demonstrate
compliance with the statutory criteria.
This is a case where legitimate and basic
questions about how the facility’s design will protect public health,
safety, and welfare
went unanswered.
This is a case where understandable concerns raised about the danger
to the surrounding area from fire,
spills,
and other operational hazards, based upon the
facility’s design and operation, were not addressed.
This is a case where incompatibility
with the surrounding area was simply not minimized.
As explained below, the County
Board’s decision is plainly against the overwhelming weight ofevidence in the Record.
It must therefore be reversed.
A.
Standard of Review
A county’s decision to apprOve siting is reviewed using the manifest weight of the
evidence standard.
File v. D&L Landfill, Inc., 219 Ill. App.
3d
897, 901, 579 N.E.2d
1228,
162 Ill. Dec.
414 (5th Dist.
1991).
This standard is used to review each of the
7
criteria set forth in Section 39.2.
Fairview Area Citizens
Taskforce
v.
IPCB,
198 Ill.
App. 3d 541,
550,
555 N.E.2d 1178,
144 Ill.
Dec.
659 (3d Dist.
1990).
A decision is
against the manifest weight ofthe evidence if the opposite result is clearly evident, plain,
or indisputable from a review ofthe evidence.
I~ik
at 901.
B.
Criterion
I
Section 39.2(a) of the Act (415 ILCS
5/39.2) sets forth nine criteria that must be
met before local siting approval may properly be
granted.
The first ofthese criteria
requires that the facility be necessary, providing, in pertinent part, as follows:
An applicant for local siting approval shall submit sufficient details
describing the proposed facility to demonstrate compliance,
and the ~pçg~
siting approval shall be granted only ifthe proposed facility.., is necessary
to
accommodate the waste needs ofthe area it is intended to serve.,..
415
ILCS 5/39.2(a)(i).
(Emphasis added.)
The Illinois Pollution Control Board (“Board”) has previously stated that an
applicant for siting approval does not have to show absolute necessity.
~
American
Bottom Conservancy, et al., v. Village ofFairmont, et.
al., No. 01-159, 2001
Ill. Env.
Lexis
489 at *54
(IPCB, Oct.
18, 2001).
Nevertheless,”necessary” does connote a
“degree ofrequirement or essentiality” and pp~
j1~that a facility will be” reasonably
convenient.”
j~...(Emphasis added.)
Indeed, the applicant must demonstrate both ~
urgent p~ç~
for, and the reasonable convenience of, the new facility. j~ (Emphasis
Added.)
1.
As a Matter of Law, Potential Convenience For WasteHaulers
Does Not Demonstrate Need
In response to this first criterion,
Suffer described the service area for the
proposed transfer station “to include an approximate 30 to 50
mile radius from the
8
transfer station.”
R.
at C14.
At hearing, Suffer’s expert witness, David Kimmle, noted
that there are two landfills within a 30-mile radius ofthe proposed transfer station,
and
six more landfills within a 50-mile radius.
R. at C141.
Mr. Kimmie (again, Suffer’s own witness) then conceded that the “regional waste
disposal
capacity already appears to be adequate,” stating, in pertinent part, as follows:
Again, the two facilities that are within the 30-mile service area are
identified as Landfill 33
in
Effingham County
and Coles County
Landfill....
The other six
facilities are within the 50-mile service area....
As can be noted, the regional waste disposal
--
again, regional waste
disposal capacity appears to be adequate.
Testimony ofDavid Kimmle, Transcript, R.
at C 142.2
Similarly,
in its
application,
Suffer also concedes that the present waste disposal
capacity in the region is already adequate.
R.
at Cl 5.
Nevertheless,
Suffer contends that
the proposed waste transfer station is needed to
“economically access out-of-county
landfills.”
R.
at C15.
At hearing, Mr. Kimmle explained Suffer’s feeling that,
although there is already
a landfill in Effingham County, the transfer station is needed to transfer waste generated
in Effingham County to one ofthe seven additional landfills that are located within a 50-
mile radius ofthe transfer station’s proposed site.
R.
at C142-C143; R.
at C17.
Regional
waste disposal capacity appears to be adequate.
However, as
we see it, the current dilemma is in maintaining a viable,
out-of-county
waste disposal source and a method to transfer county-generated waste to
one
or more ofthese
facilities.
***
Reference to—the
regional waste management plan for Effingham County
will indicate that it
is the county board’s intention to
support the disposal
ofwaste generated in the county at in-county and
out-of-county landfills.
2
A former County Board member also voiced
his
concerns that the transfer station was not needed.
See
R. atC4l9.
9
Economically,
to
access out-of-county landfills, we feel that a waste
transfer station is needed.
Testimony ofDavid Kimmle, Transcript, R.
at C142-C143.
(Emphasis added.)
See also R. at C15.
Mr. Kimmle also noted that there has been a 50
percent decline in the number of
operational landfills
since 1992, and an approximately 40 percent increase
in the number
of operating transfer stations since 1996.
R.
at C 143.
In essence, enhanced environmental regulations have caused a decline in
the number of operational landfills, thereby forcing the remaining facilities
to become much larger and service a much greater area.
The service area
ofa regional landfill is increased
in the use and the operation of waste
transfer stations.
Again, as pointed out earlier, in
considering the service
area of 30 miles, there are two facilities that can be accessed.
In
considering the service area of50 miles, which could be utilized to
sic
~
transfer station,
we’ve increased the availability of landfill capacity to
sic
two to eight facilities.
Testimony ofDavid Kimmle, Transcript, R.
at C144.
(Emphasis added.)
Waste collection vehicles like “packer trucks” are best for picking up
trash, but
semi-trailers are better at transportation.
R. at C240.
Waste haulers like Suffer find it
economical not to drive their collection vehicles to
a landfill, but to, instead, bring the
waste to
a transfer station.
R. at C278.
At the transfer station, the waste is transferred to
other vehicles that transport the waste to
a landfill.
R.
at C278.
Waste haulers make
money picking up
garbage.
R.
at C223.
By owning a transfer station,
a waste hauler can
decrease the amount of time its packer trucks spend traveling to a landfill,
and increase
the amount oftime its packer trucks are available for picking up
garbage.
R.
at C223.
This results in more money forthe waste hauler.
R.
at C223.
10
In describing the service area, Suffer conceded that refuse collection vehicles can
economically travel on a routine basis within a 30-mile radius of a transfer station,
stating
in pertinent part, as follows:
The service area.
.
.
is
expectedto include an approximate 30 to 50 mile
radius from the transfer station.
This radius is based upon the.economical
distance
a refuse collection vehicle can travel on a routine basis, in
addition to the location of refuse disposal facilities outside ofEffingham
County.
R. at C14.
(Emphasis added.)
This concession is important, because, in its application; Suffer acknowledges that
an operational transfer station already exists in Shelbyville, Illinois.
Operational
transfer stations
currently exist in Shelbyville, Pana,
Greeneville, and Mt. Vernon.
R.
at C15.
(Emphasis added.)
In its attempts to explain why it felt that the proposed transfer station is necessary,
Suffer arguedthat the Shelbyville transfer station and the other existing transfer stations
are simply too far away.
Due to haul distances, these are not viable facilities for the routine transfer
ofwaste generated in Effingham County.
R.
at C15.
(Emphasis added.)
It is undisputed that the “haul distance” to the Shelbyvilletransfer
station,
however, which was identified by Suffer, as too far forthe routine transfer of waste, is a
travel distance ofmerely 35
miles.
These communities i.e.,
Shelbyville, Pana, Greeneville, and Mt. Vernon
are located approximately
35
miles (travel distance) to the north,
40 miles
to the northwest,
55 miles to the west, and 60 miles to the south,
respectively.
Rat
C15.
11
Indeed, in its application,
Sutter alternates between road miles (when referring to
distances from existing waste disposal alternatives) and miles
as a crow flies (when
referring to distances from its
own
proposed facility).
~
R. at C14, C15.
This
inconsistent methodology artificially created an appearance that the current alternatives
for waste disposal,
e.g., the Shelbyville transfer station,
are further away.
When
consistent
units ofmeasurement are used, however,
Suffer’s illusion that the Shelbyville
transfer station is not a viable alternative forthe routine disposal ofwaste generated in
Effingham
County, due to the “haul distance,” quickly dissipates.
Indeed, close
-
examination of Suffer’s own “Regional Service Area”
map reveals that the Shelbyville
transfer station and
site of the proposed transfer station are actually within a 30-mile
radius of each other.
~
R. at C17.
And, as previously noted,
Suffer itself has admitted
that refuse collection vehicles
can economically travel ~
~ routine basis within a 30 mile
radius of a transfer station.
R.
at C14.
Moreover, in its
application,
Suffer uses the City ofEffingham as the starting
point when describing the number of miles that must be traveled in order to reach a
landfill.
R.
at C14.
Suffer’s map ofthe proposed transfer station site does not identify
the location ofthe City ofEffingham. R.
at Ci7.
Nevertheless, Suffer’s
map does show
that Landfill 33
(which is located at Effingham) is well within a 30-mile radius ofthe
Shelbyville transfer station.
R. at C14, C17.
Thus,
Suffer’s
~
evidence demonstrates
that the existing Shelbyville transfer station is a viable facility for the routine transfer of
waste generated in Effingham County.
Similarly,
Suffer describes the travel distance “via primary roadways”
from the
City ofEffingham to each ofthe eight landfills available as ranging from zero to 70
12
miles.
R.
at C14.
Nevertheless,
Suffer never identifies the travel distance from the City
ofEffingham to the proposed transfer station.
According to the scant details that
Suffer
does provide on this issue,
however,
most of the collection vehicles are expected to travel
to the remotely located transfer station on County Highway 25
from the 1-70 interchange;
a distance ofseven miles by itself
R.
at C63.
Examination of Suffer’s “Site Location
Map” reveals that the additional travel distance from the 1-70 interchange to the City of
Effingham is apparently significantly greater than seven miles.
~
R. at C76.
An applicant for siting approval does not have to show absolute necessity.
American Bottom Conservancy, et al.
v.
Village ofFairmont,
et.
al., No.
01-159, 2001
Ill.
Env. Lexis
489 at
*54 (IPCB, Oct.
18, 2001).
Nevertheless, in this case, it is undisputed
that regional waste capacity is adequate.
Testimony that access to additional
out of
county landfills might be more economical forwaste haulers, if a transfer station is also
available,
does not demonstrate that a transfer station is necessary.
“Necessary” connotes
a “degree ofrequirement or essentiality” and ppjjj,~j
that a facility will be “reasonably
convenient.”
~
Here,
Suffer failed to make even
aprimafacie
case regarding necessity.
Sutter presented evidence that it might
be more economical for waste haulers if the
transfer station was constructed.
Nevertheless,
Suffer did not and cannot demonstrate any
urgent need for the facility.
~
Instead,
Suffer only presented evidence regarding the
possible economic benefit that the transfer station might
provide to waste haulers.
Moreover,
as demonstrated by certain health, safety, and welfare hazards in the
Record, which are discussed further below,
even if economically beneficial for Suffer and
13
other waste haulers,
this transfer station is plainly not needed and,
as proposed, would
likely be very economically detrimental to neighbors
and the surrounding community.3
Apparently recognizing that the facility is neither essential nor urgently needed, Suffer
asked the County Board to apply a different standard instead.
Suffer asserted to the
County Board that a reasonable
convenience of expanding the facility was all that must
be shown in order to “satisfy the need criterion.”
With respect to the need issue,
and as some
guidance to the Board
on this
issue,
the Act requires
that therebe a showing ofneed, but not that there
be an absolute necessity to accommodate the area’s needs.
Citation
omitted.
Rather,
such factors as a reasonable convenience ofexpanding
the facility may be demonstrated to satisfy the need criterion.
R.
at C369.
(Emphasis added.)
The Second District Appellate Court
has noted that absolute necessity is too
stringent a standard and has employed the terms “expedient”
and “reasonably
convenient” to describe the required level ofproof
~,
~
Waste Management of
Illinois,
Inc. v. IPCB,
123 Ill.
App.
3d
1075,
1084, 79 Ill. Dec.
415, 422,
463
N.E.2d 969,
976
(2d Dist.
1984).
Nevertheless, the Court has also clarified that an applicant must
demonstrate more than that a facility will be convenient:
An expedient is defined as “a means devised orused in an
exigency”
thereby connoting an element ofurgency in the definition of need.
*
*
*
Reasonable convenience also requires a petitioner to show more than
convenience.
Recently, the
Third District of our Appellate Court defined
this higher level ofproof as a showing that the landfill be reasonably
~
Some of Sutter’s apparent motives for
transporting
waste to its
own transfer
facility rather
than
to
Landfill
33, for example, are also contained in the record.
Sutter intends to sort loads of waste
received at the transfer station in order to “reclaim metals
and
cardboard,” which
will be storedin a
separate building for“recycled materials.”
R.
atC20.
Sutter presently operates arecyclingdrop-off in
anotherbuilding on the site,
and
has indicated
that,
without the transfer station,
it will be economically
impossible for it to continuerecycling.
R. at C190.
Sutter has had loads rejected at some area
landfills, including Landfill
33.
R. at C360, C398.
Other landfills charge less to dump
than
Landfill
33.
R.atC4l7.
14
required by the waste needs ofthe area including consideration ofits
waste production and
disposal capabilities.
Id
(Emphasis added.)
Thus,
Suffer’s
own
evidence before the County Board demonstrated that the
regional waste disposal capacity was adequate.
Suffer’s own evidence before the County
Board demonstrated that a refuse collection vehicle can routinely and economically travel
within a 30-mile radius ofa waste disposal
site.
Suffer’s own evidence before the County
Board demonstrated that two landfills and
a transfer station already exist within a 30-mile
radius of the proposed facility.
Suffer’s own evidence before the County Board does not
establish any more than that the transfer facility might be convenient for waste haulers.
Furthermore, the Record shows that Suffer presented no
evidence whatsoever
regarding waste production or waste generation ofthe area, as is customary and required
by the Second and Third District Appellate Courts.
Waste Management ofIllinois, Inc.
v.
IPCB,
123
Ill. App.
3d
1075,
1084,
79111.
Dec.
415, 422, 463 N.E.2d 969, 976 (2d
Dist.
1984); Waste Management ofIllinois, Inc. v. IPCB,
122 Ill. App. 3d 639,
645, 77
Ill. Dec.
919,
923,
461 N.E.2d 542,
546
(3d Dist.
1984); see also,
Waste Management of
Illinois, Inc.
v.
Village ofBensenville, No. 89-28, 1989 Ill. Env. Lexis 45
at *22.,23
(IPCB, Aug.
10,
1989) (need for transfer station not demonstrated where, inter alia,
volume ofwaste taken to area landfills was not provided).
Based upon Suffer’s evidence alone, it is plain from the Record that,
if consistent
methods are used when measuring distances, criterion one is not met.
More importantly,
when the proper standard of“requirement or essentiality” is applied, it is clearly evident
that the need criterion is not met.
15
C.
Criterion II
Again, as the applicant at the hearing before the County Board, Suffer had the
burden ofestablishing by a preponderance ofthe evidence that
all ofthe essential criteria
were satisfied.
American Bottom Conservancy, et al. v.
Village ofFairmont,
et.
al., No.
01-159,
2001
Ill. Env. Lexis 489 at
*6 (IPCB,
Oct.
18, 2001).
The second
criterion that
must be met before local siting approval can be
properly granted requires that public
health,
safety, and welfare be protected, providing, in pertinent part, as follows:
An applicant for local
siting approval shall submit sufficient details
describing the proposed facility to demonstrate compliance,
and local
siting approval shall be granted?~iyifthe proposed facility...
designed, located and proposed to be operated that the public health,
safety and welfare will be protected....
415
ILCS 5/39.2(a)(ii).
(Emphasis added.)
The standard ofreview to be exercised by the Board is whetherthe decision ofthe
County Board is contrary to the manifest weight of the evidence.
File v.
D&L Landfill,
Inc~,
219 Ill. App.
3d 897,
901,
579 N.E.2d 1228,
1232,
162 Ill. Dec
414, 418
(5th Dist.
1991).
The manifest weight of the evidence standard has long
been used in Illinois to
evaluate whether a party established its claim by
a preponderance of the evidence.
See,
~
Western Cartridge Co.
v.
Industrial Commission,
et al., 383
Ill.
231,
48 N.E.2d 938
(Ill.
1943) (reversing Industrial Commission’s award of compensation as against manifest
weight ofthe evidence, where the applicant did
not demonstrate by a preponderance of
the evidence that his conjunctivitis was caused,by
acid burns).
Although there be in the record evidence, which if undisputed, would
sustain a finding for the applicant, such evidence is not sufficient, if upon
consideration ofall ofthe evidence
in the record it appears that the
manifest weight ofthe evidence is against the claim made.
Id. at 233.
16
Where an
applicant fails to demonstrate that the statutory criterion is satisfied, its
application is properly denied.
$&c,
ç~.g,.,Waste Management ofIllinois,
Inc.
v.
IPCB,
123 Ill.
App.
3d
1075,
1084,
79111. Dec.
415, 422, 463 N.E.2d 969,
976 (2dDist.
1984).
Here,
although Sutter presented evidence regarding the proposed transfer station’s design,
location, and operation, Suffer clearly failed to demonstrate that public,
safety and
welfare will be protected.
1.
Upon Consideration ofAll ofthe Evidence, It Is Plain That Suffer
Failed
To Demonstrate That The Public Health, Safety And
Welfare Will Be Protected
In an attempt to demonstrate that the second criterion was satisfied,
Suffer did
present approximately 21
pages in its
application regarding the proposedtransfer
station’s design, location, and operation.
R.
at C18-C39.
At hearing,
Suffer also
presented testimony regarding the same.
R. at C145-C146.
Nevertheless, the evidence
and testimony presented by Suffer is not sufficient to meet its burden,
and the County
Board’s finding must be set aside because, upon consideration ofall ofthe evidence, it is
plain that Suffer has not demonstrated that the public health,
safety and welfare will be
protected.
Suffer has not designed a waste transfer station.
R.
at C24 1.
Suffer has simply
proposed slight modifications to one ofthree pole barns currently
located at a site where
a grain elevator used to be operated.
R.
at C77.
The “Facility Plan” shows three large
pole barns,
six grain bins, a silo,
a grain elevator, a large round top shed, a scale, a scale
house, a residential structure to be used as the facility office, and a propane tank on the
site.
R. at C77.
Suffer has no plans to demolish or remove any
structures atthe
site.
R.
at C147.
17
L
As the Board is aware, Section 22.14(a) ofthe Act provides that no person may
establish any
pollution control facility foruse as a garbage transfer station within 1000
feet ofany dwelling.
415 ILCS
5/22.14(a).
Nonetheless,
Suffer’s own application
L
‘
‘
concedes that “the closest dwelling is located on the property” that
is proposed for the
transfer station.
R.
at C19.
At hearing, Suffer did present evidence that the dwelling “is
not inhabited,” and
“is to be used as the
office for the proposed waste transfer facility.”
L
R. at C 147.
At hearing, however,
Suffer specifically referred to the house on-site as a
“dwelling.”
R.
at C147.
Moreover, the photographic evidence presented by
Sutter
—
demonstrates that the dwelling is a large two-story house.
R. at C65.
Testimony
at the
hearing also
established that the on-site dwelling includes a swimming
pooi.
R.
at C239.
L
After the hearing, however,
Sutter assured the Effingham
County State’s
Attorney, Ed Deters,
and then County Board Chairman, Leon Gobczynski,4 that having a
house at the site ofthe proposed transfer station presented no
problems.
The presence ofthis house, however, is no impediment to the approval of
L..
the transfer station.
As
noted at hearing and in the
siting application, this
house will serve as the office for the transfer station, and
only that
purpose.
No person will be present at the house beyond operational hours
ofthe facility and
certainly no one will live
in it.
As merely a business
office, the house does not constitute a “dwelling” as used in the Act.
See
People v. Bonner,
221
Ill. App.3d 887,
164 Ill. Dec.
502
(1st
Dist.
1991)
~.
Subsequent to
the
hearing
in the proceedings below,
Chairman Leon Gobczynski resigned from
the
County Board.
18
(Where a house was not lived in and with no
expectation that anyone
would live
in it, the court concluded it was not a dwelling).
R.
at C374.5
Contrary to Suffer’s assertions, however, no evidence was presented, either at
hearing,
or in the siting
application, that the two-story house with a pool,
which is located
on the site, will ~piy be used as
g~
office.
Evidence was presented that Suffer intends to
either purchase the property eventually orto extend its
lease; but, at present, Suffer has
simply rented the property for one year.
ClO.
Contrary to Suffer’s assertions, no
testimony was presented at hearing that no one will live
in the house.
Suffer’s apparent attempts to fix the Record after the fact, through “public
comments” that
are
not
subject to cross-examination, ring hollow and were entitled to
little, if any, weight by the County Board.
Suffer bore the burden ofestablishing that no
dwelling was located within 1000 feet of the proposed waste transfer station.
The
overwhelming weight ofthe evidence in the Record, however,
clearly demonstrates that
Suffer completely failed to meet
its burden.6
~
People v.
Bonner
did
not even concernthe Act,
and the decision containsno such conclusion by the
Court.
Instead, in People v. Bonner the Court reduced a sentence from residentialburglary to burglary
afterthe State conceded
that
a housewhich had been unoccupied for seven years was not a “dwelling”
within the
meaning
of the residential burglary statute (now
720
ILCS
5/19-3),
absent evidence
that
someone intended to reside there within a reasonable time.
The Illinois
Criminal
Code broadly defines
the phrase “dwelling” to include a building or portionthereof
that
is used or intended for use as a
human
habitation, home, or residence.
720
ILCS
5/2-6(a).
For purposes ofthe residentialburglary
statute,
however, the Iffinois
Criminal
Code limits the phrase “dwelling” to a “house, apartment,
mobile home, trailer or other living quarters in which at the time of the alleged offense the owners or
occupants actually reside or in their absenceintend within a reasonable
time
to reside.”
720
ILCS
5/2-
6(b).
The Act contains no
similar
limitation on the definitionof“dwelling.”
6
This
house on-site will preclude permitting by the IBPA.
R.
at C238.
As
a practical matter, even if the
housewas not present on site,
this
provision ofthe Act
will
preclude the
IEPA
from issuing a permit
for the transfer station anyway.
Although not considered by the
County
Board below, public comment
at the hearing on
fundamental
fairness, demonstrated
that
there is now anotherhome located within
200
yards ofthe proposed site.
~,
Tr. at
40.
19
As the transfer station is proposed to be
designed, waste materials will be dumped
on the existing concrete floor ofa pole barn.
R.
at C20.
From there, the waste will be
pushed by a rubber-tired
loader into a trailer that will be
parked in
a concrete loading bay
that is proposed to be
added at one ofthe sides ofthe existing pole barn.
R.
at C20.
Although a leachate collection system is
proposed to be installed in the loading bay itself,
nothing is planned to prevent liquid wastes and leachate from running offthe concrete
floor and onto the ground surrounding the building.
R.
atC244.
The concrete floor is to
be washed down, yet nothing is in place to prevent the contaminated wash water from
flowing offthe floor and onto the ground outside.
R.
at C244.
The clearance between the concrete floor and the rafters ofthe pole barn is
16
feet.
R.
at C250.
Suffer’s garbage trucks are newer models and
can drive through the
pole barn with their tailgates open.
R. at C264.
Nevertheless, the transfer station will not
be
limited to use by Suffer’s trucks.
R.
at C177.
Older trucks used by
other haulers will
be unable to open their tailgates fully when unloading
in the building because of
inadequate clearance.
R.
at C250-C251; C264.
Moreover,roll-offs will not be able to
raise their beds to the full height
as designed, ifunloading in the building.
R.
at C250-
C251; C264.
Although Suffer has indicated that it will have personnel watch such trucks
unload, it has presented no evidence regarding what safe alternatives are available when
these vehicles cannot be unloaded as designed within the pole barn.
R.
at C264.
Suffer presented evidence that the waste transfer operation will take place totally
within the confines ofthe building.
R.
at C 151.
Nevertheless, the evidence demonstrates
that some waste transport vehicles cannot unload, as the vehicles are designed, within the
building.
R.
at C250-C25 1; C264.
Thus,
these vehicles will either have to be unloaded
20
in a different manner than designed or unloaded outside in
contradiction to
Suffer’s plan
ofoperation.
D.
Criterion III
The third criterion that must be met before local siting approval can be properly
granted involves the facility’s compatibility with the character of the surrounding area,
and its effect
on the value ofthe surrounding property, providing,
in pertinent part, as
follows:
An applicant for local
siting approval shall submit sufficient details
describing the proposed facility to demonstrate compliance,
and local
siting approval shall be granted ~y
if the proposed facility..,
is located
so as to minimize incompatibility with the character ofthe surrounding are
and to minimize the effect on the value ofthe surrounding property.
415
ILCS 5/39.2(a)(iii).
(Emphasis added.)
Criterion three is “two pronged.”
First, the applicant must demonstratethat the
facility is located so as to minimize incompatibility with the character ofthe surrounding
area.
Second, the applicant must demonstrate that the facility is located so as to minimize
the effect on the value ofthe surrounding property.
In support ofthis criterion, the applicant provided a letter from a certified
residential real estate appraiser.
R.
at C42.
This leffer gives
no bases, however, for the
conclusion that property values will not be affected.
The appraiser did not make use of
comparables, which as the Board knows, is the’ standard measurement ofhow property
values will be affected in siting
cases.
While the appraiser references visits to similar
transfer stations, he provided no information on these other stations or how he concluded
that these were similar.
21
In addition,
the letter contains no discussion of how the applicant will minimize
incompatibility with the character ofthe surrounding area as required.
At hearing,
Suffer’s witness described the surrounding land as “predominately level agricultural
cropland.”
R.
at C181.
There is no discussion whatsoever, however,
as to how the
facilitywill minimize incompatibility with the character ofthe
area.
R.
at C178-C182.
An applicant must demonstrate it has done or will do what is reasonably
feasible to minimize incompatibility.
Waste Management ofIllinois, Inc. v.
TPCB,
123
Ill.
App. 3d
1075,
1090,
79 Ill. Dec.
415,
426,
463 N.E.2d 969,
980 (2d Dist.
1984).
Here,
Suffer simply failed to provide ~py evidence on one ofthe prongs or
elements ofcriterion three.
Thus, the decision ofthe County Board that this criterion has
been met is against the manifest weight ofthe evidence.
E.
Criterion Five
The fifth criterion that must be met before local siting approval can be properly
granted relates to the danger to the surrounding area, providing,
in pertinent part, as
follows:
An applicant for local siting approval shall submit sufficient details
describing the proposed facility to demonstrate compliance,
and
local
siting approval shall be granted ~
if...
the plan ofoperations for the
facility is designed to minimize the danger to the surrounding area from
fire,
spills, or other operational accidents....
415 ILCS
5/39.2(a)(v).
(Emphasis added.)
22
1)
Instead of BeingDesigned To Minimize The Dangers, Suffer’s
Plan Of Operations Contains Minimal Designs To Protect The
Surrounding Area
As
set forth above,.a county board may not grant local siting approval unless the
applicant has submitted sufficient
details describing the proposed facility to demonstrate
compliance with the following criterion:
the plan of operations for the facility is designed to
minimize the danger to the surrounding area from fire,
spills, or other operational accidents;
415 ILCS
5/39.2(a)(v).
(Emphasis added.)
In its application,
however,
Suffer apparently concedes that a fire hazard already
exists at the proposed transfer station
site, i.e., a former grain elevator operation, where
six grain bins remain.
$~ç
R.
at C22, C49,
and C77.
There appears to be minimal increase in
fire hazard as a
result ofthe operation ofthe proposed facility.
$~
Sutter’s Application, R.
at C49.
It is generally known that grain storage areas can be fire hazards.
Nevertheless,
Suffer’s transfer station is proposed to be located immediately adjacent to three existing
grain bins.
See R. at C77.
Moreover, Suffer’s
own
“Facility Plan” schematic shows that
a large “existing propane ~
is located a short distance diagonally from the proposed
transfer station.
R. at C77.
And,
Suffer’s plan of operations increases the risk
ofdisaster
by routing semi-tractor trailers and trash collection vehicles around both sides ofthis
propanetank as they travel to and
from the highway.
$~
“Process Flow Diagram,” R. at
C78.
Nevertheless, Suffer’s “contingency plan” for fires is essentially to
call a member
of management and “911” in the event of an emergency,
and to write a report following
23
the incident.
$~
“Contingency Plan” R.
at C23-C27.
Concerns regarding the rural
challenges associated with emergency vehicle response times were not even addressed.
R.
at C426.
The record demonstrates that Suffer’s emergency equipment for responding
to fires consists ofthe following:
Fire:
A fire extinguisher is to
be located within the waste transfer
building.
Additional extinguishers are to be available
at the site office and
scale house.
R.
at C24.
The contingency plan describes the facility’s location, lists emergency contacts,
and requires that a report be provided to the site manager.
R.
at C23-C27.
Nevertheless,
the “contingency plan” contains no strategy for evacuating members ofthe public from
the transfer station or the on-site recycling center.
A propane tank and numerous grain
bins are located on the property, but the plan contains no provisions for preventing
the
spread of fire to these structures.
Similarly, the “contingency plan” does not address the
recycling building in which reclaimed “cardboard”
and “metals” are to be stored.
Other
than a handful offire extinguishers,
no fire-fighting equipment is even identified.
Not
even a fire hydrant or pond from which water could be withdrawn to fight a fire is
identified.
No smoke alarms are identified as being present in any ofthe buildings.
No
provisions are in place to notify the owner/operator of a fire at night or on the weekend,
when the facility is closed.
The application explains that waste collection vehicles may
be stored in
other existing buildings on site.
R. at C23.
Nevertheless, no provision
is
made to provide those responding to any fire with safety information regarding the
flammable and explosive materials that may be stored in and
around the other buildings
on site,
e.g., the existing propane tank identified on the facility schematic.
24
The statute requires that the danger from a facility be minimized.
Nevertheless, it
is plain that here, Sutter has reversed the emphasis and has simply taken minimal
measures to address the danger of fires, spills,
and operational accidents.
The Second
District Appellate Court has made it clear that when the General Assembly used the term
“minimize” in
Section 39.2 ofthe Act it was ~
referring ~
minimal efforts by
applicants, stating in pertinent part as follows:
Under the
applicant’s
construction,
any action, however small, taken by
an applicant to
minimize the landfill’s incompatibility would satisfy the
statutory requirement.
Such a minimal requirement would render the
criterion practically meaningless.
Rather, we read section 39.2(a)(iii) as
requiring an applicant to demonstratemore than minimal efforts to reduce
the landfill’s incompatibility.
An applicant must demonstrate it has done or will
do what is reasonably
feasible to minimize incompatibility.
Waste Management of Illinois, Inc. v. IPCB,
123
111.
App. 3d 1075,
1090, 79 Ill. Dec.
415, 426,
463 N.E.2d 969, 980
(2d Dist.
1984).
Nevertheless, Suffer has simply not demonstrated that it has done what
is
reasonably feasible to minimize the danger to the surrounding area.
When asked by a
County Board member about a water sprinkler system,
Suffer’s expert stated that it was
“not required”
and that there was no intent to install one.
R.
at C168.
Similarly, when
asked by another County Board member whether any bodies ofwater were located close
to the proposed transfer station for firefighting purposes,
Suffer’s expert witness
responded as follows:
25
As
far as a surface body
ofwater, I’m
—
the
—
the body ofwater that I am
knowledgeable ofI would presume would not be available because ofthe
distance for that purpose.
Rat
C167.
It was undisputed that it is pretty common to receive a “hot load.”
R.
at C246.
Nevertheless, although the exterior ofthe pole barn, proposed to be converted
into a
transfer station,
is metal, the interior is covered with wood
—
creating a fire hazard.
R.
at
C245-246.
Suffer’s expert concluded that the primary concerns with regard to this
criterion
were the storage ofpetroleum products on site and the storage of refuge on the property.
R.
at C158.
Sutter’s expert then concluded that there was no potential for petroleum
spillages on site because there was no intent to store petroleum products at the facility.
R.
at C158.
Suffer’s expert also concluded that the refuse presents no danger either,
because there is no intent to store refuse
atthe site.
R. at C158.
Nevertheless, Suffer’s own evidence demonstrates that contrary to the expert’s
statements, both petroleum products and refuse will be stored.
The conclusions of
Suffer’s expert are based upon assumptions that are contradicted by the undisputed
evidence in the Record.
As previously noted, Suffer’s own diagrams show a large
propane tank on
site.
R.
at C77.
Similarly, Suffer’s own witnesses testified that refuse
will be stored on-site overnight whenever the transfer trailer is not filled.
R.
at Cl 52.
Garbage trucks filled with waste may also be stored on
site.
R. at C23.
Moreover,
reclaimed cardboard, metals, and recycled materials will be stored in a different building
at the facility.
R.
at C20.
26
Suffer’s expert also
summarily dismissed the danger from spills, which he
conceded could
occur,
stating that they would
simply be addressed
as follows:
Obviously there is a potential of an accidental spill during that transfer
process.
However, the site is contoured in such a way that local drainage
waste can be burned sic.
Booms,
portable booms, burns
sic
or dikes
can also be
constructed on the site so that any spillage that does occur can
be contained on the site and appropriate
—
appropriately cleaned up.
R. at C158-C159.
Suffer’s testimony regarding the traffic flow intothe facility did not even address
the number ofvehicles that would be utilizing the recycling center also located on site.
Moreover,
Suffer admitted having received a noncompliance letter from the Illinois
Environmental Protection Agency (“IEPA” or “Agency”) for allowing uncovered roll-off
boxes containing waste to sit on the site where he currently parks his vehicles for some
period of time instead of being taken to a landfill.
R.
at C195-C196.
It is evident from the Record that Suffer’s proposed waste transfer station!
recycling center/grain
elevator facility is, a disaster waiting to happen.
Suffer has not
demonstratedthat it has done orwill do what is reasonably feasible to minimize the
danger to ‘the surrounding area from fire,
spills, or other operational accidents.
F.
Criterion Eight
The eighth criterion that must be met before local siting approval can be properly
granted is as follows:
An applicant for local siting approval shall submit sufficient details
describing the proposed facility to
demonstrate compliance,
and local
siting approval shall be granted ~y
ifthe proposed facility..,
is to be
located in a county where the county board has adopted a solid waste
management plan consistent with the planning requirements ofthe Local
27
Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act,
and
the facility is consistent with that plan.
415
ILCS 5/39.2(a)(viii).
(Emphasis added.)
It is undisputed that Effingham County has adopted a regional waste
management
plan.
R.
at C71.
Suffer argues that the plan’s encouragement for haulers to find the most
economical method ofwaste disposal supports its proposed transfer station.
R.
at C71.
Suffer then argues that to economically transfer waste to one ofthe numerous out-of-
county disposal facilities, the proposed transfer station is needed.
R.
at C142-Cl43.
As
previously explained with regard to criterion one, however,
Suffer’s
own
evidence
regarding economic haul distances demonstrates that an
economical alternative already
exists.
Indeed, as previously explained, basedupon Suffer’s own evidence, persons
desiring to transferwaste to
one ofthese out-of-county landfills can economically use the
existing Shelbyville transfer station.
Thus, the decision ofthe County Board is against
the manifest weight of the evidence on this criterion as well.
G.
Conclusion as to All
Criterion
Section
3 9.2(a) of the Act sets forth criteria that must be met prior to the approval
ofa siting application for a waste transfer station.
415
ILCS 5/39.2(a).
The General
Assembly has charged the County Board with resolving the technical issues set forth
therein, including the public health ramifications associated with the facility’s design.
Id
The applicant, Suffer, had the burden ofproofand was required to demonstrate that the
criterion was met.
Suffer did not do
so.
It is undisputed that the regional waste disposal capacity is already adequate.
R.
at
C142.
Suffer did not demonstrate that the transfer station is needed.
At best, it
demonstrated that the transfer station might be convenient.
Suffer also failed to
28
demonstrate that the facility, an improvised design with minimal safeguards that is
proposed to be retrofitted to a former grain elevator, is located so as to minimize
incompatibility and the effect on the value ofthe surrounding property.
More
importantly, Suffer has failed to demonstrate that public health,
safety,
and welfarewill
be protected.
Indeed, instead of being designed to minimize
danger, it appears that
Sutter’s transfer station is a disaster as designed.
The County Board’s decision to
approve local siting is against the manifest weight ofthe evidence and
must be reversed.
ifi.
THI~
COUNTY BOARD’S PROCEEDINGS WERE FUNDAMENTALLY
UNFAIR
The proceedings before the County Board were not fundamentally fair as to
Stock
& Co.
Examples ofthe lack of fundamental fairness, which are explained in greater
detail below with citations to the record, include the following.
Despite Stock & Co.’s
request, the transcript of the hearing was not made available by the County Board until
after the deadline for appeal ofthe County Board’s decision, hampering Stock &
Co. in
its efforts to formulate the basis for its appeal ofthe County Board’s decision.
Following
a threat from Suffer to close its
recycling center, the County Board approved local siting,
despite Suffer’s failure to demonstrate that the statutory criteria had been
met.
At the
hearing before the County Board, the mother ofthe County Board’s attorney was a highly
vocal advocate for the recycling center and hence siting approval
--
yet this mother/son
relationship was never
disclosed.
Members of the County Board toured Suffer’s site at
least once, and possibly twice, but the substance ofthose tours was not disclosed and
persons
oppoaed to the transfer station were not invited to participate.
Ifthe County
Board’s decision is not reversed because it is against the manifest weight ofthe evidence
with regard to the statutory criteria, the numerous issues with regard to fundamental
29
fairness, especially, but not exclusively, when combined, mandate that the decision be
reversed or remanded for a fair hearing.
A.
Unavailability of the Hearing Transcript at the County
The County Board hearing took place on
August
14,
2002.
R.
at C
125.
The
hearing was transcribed and certified by
September 2,
2002.
R.
at C294.
Nevertheless,
when Stock & Co., through its Registered Agent, Duane Stock, contacted the County
Clerk on October 2, 2002,
to obtain a copy ofthe hearing transcript,
he was told that the
transcript was not available through the County and was advised to contact counsel for
the applicant.
~
Affidavit attached to
Stock & Co.’s Petition for Review,
and
Transcript ofHearing (“Tr.”) at 44-45.
As the Board is aware, it has previously held that
a siting authority’s failure to provide access to the hearing transcript is enough to make
the proceedings fundamentally unfair.
Spill, et al. v.
City ofMadison and Metro-East,
LLC, PCB 96-91, 1996
Ill.
Lexis
250 at
*22 (IPCB March 21,
1996);
American Bottom
Conservancy, et
al., v.
Village ofFairmont, et.
aL, No. 00-200, 2000 Ill. Env. Lexis 665
at *44 (IPCB,
Oct.
19, 2000).
Stock & Co. filed its Petition on October 21,
2002.
As
Stock & Co. had not been
provided access to the hearing transcript by the
County, however,
its arguments in its
Petition had to be based solely on the siting application and Duane Stock’s attendance at
the hearing.
Tr.
at 44-45.
Indeed, the transcript was not even filed with the county clerk
until October 24, 2002,
after the deadline for filing an appeal had passed even though it
had been transcribed as early as September 2, 2002,
apparently for the applicant.
R.
at
C124.
In the American Bottom
case, where the Board also found a lack offundamental
fairness, the transcript was not available until days after the public comment period
30
ended, but was provided prior to the deadline for appeal.
American Bottom
Conservancy,
et al., v.
Village ofFairmont,
et.
al., No. 00-200, 2000 Ill. Env. Lexis 665
at *10 and
*34
(IIPCB,
Oct.
19, 2000).
Inthat case, the Board noted that the transcript
had been transcribed several days earlier than it had been filed with the Village Clerk
and
the Village had not offered an explanation for the delay.
Ict
at *45,
The present case is
even more egregious, however, because, the transcript was not available through the
County until after the deadline for appeal, more than a month after the close ofthe’ public
comment period,
and more than six weeks after it had initially been transcribed.
Section
3 9.2(d) ofthe Act requires that a record ofthe public hearing be
developed,
and that the record be sufficient to form the basis of appeal.
415 ILCS
5/39.2(d).
All such documents or other materials on file with the county board or
gOverning body must be
made available for public inspection and copying.
415
ILCS
5/39.2(c).
The County Board’s proceedings were fundamentally unfair and
Stock & Co.
was prejudiced by the County Board’s failure to
comply with its statutory obligations
alone.7
As previously noted, when it attempted to obtain a copy of the transcript,
Stock &
Co was told to see Suffer’s attorney.
See Affidavit attachedto
Stock &
CO.’s Petition for
Review,
and
Transcript ofHearing (“Tr.”) at 44-45.
Stock & Co was further prejudiced
by misstatements about the testimony at hearing, that were contained in a. letter Suffer’s
attorney
sent to the Effingham County
State’s Attorney, Ed Deters, and the then County
n
7
fl
‘
See, ~
by
analogy,
People v. Keeven,
68 Ill. App. 3d 91, 97,
385 N.E.2d 804,
808
(5th
Dist.
1979)
• (holding
that
the violation of a
statute obviated the need for the
plaintiff
to
show irreparable
harm
or
the absence ofan adequate remedy at law, in order to seek an injunction)..
‘
7
31
Board Chairman Leon Gobczynski.
R.
at C368 to R.
at C375A.8
The County Board’s
misplaced reliance on this letter from
Sutter’s counsel is evidenced by its verbatim
adoption of“Attachment 5” to
the letter, even including the typographical errors (e.g., the
word “staring” in paragraph 7(a)),
as its
findings of fact.
Compare Attachment 5, R. at
C375A, with “Finding ofFact,” R.
at C433.
This misplaced reliance was particularly prejudicial,
since none ofthe County
Board members who voted (including one member who
did not attend the hearing) could
verify the accuracy ofthe letter from
Suffer’s counsel against the transcript
(which was
unavailable).9
Moreover,
as explained further below, the County Board was not an
unbiased decision maker.
B.
The
County
Board Based Its
Decision on Recycling Rather Than
The
Statutory Criteria
At the hearing before the County Board, Suffer threatened that it would have to
close its recycling center, if siting for the waste transfer station was not approved.
R.
at
C 190.
Suffer opened the doorto the testimony regarding the interconnection between the
recycling center and approval of the proposed transfer station
as follows:
Q.
Okay.
Are you planning on running another operation out
there other than the transfer facility?
A.
We currently already
do.
We handle the
—
the recycling
drop-offthat was once implemented in
Altamont.
The
equity done it.
The equity can no longer house the
recycling, so in
doing this we do have the means and the
—
8
For example, contraryto assertions in the letter, no testimony was presented at
hearing
that the house
on-site would only be used as an office.
Compare the statement in the letter (“As noted at hearing and
in
the siting application, this house will serve asthe office forthe transfer station,
and only forthat
purpose.”
R.
at C374)
with
the testimony in the transcript.
See
County Board meeting minutes for September
16, 2002,
indicating that
County
Board member
Bob Shields voted to approve local siting
(R.
at C437-439); transcript ofAugust
14, 2002,
which
shows
appearances
by
County
Board members, except forBob
Shields
(R.
at C127); and filestamp
date on transcript indicating its filing by the County Clerk on
October
24, 2002.
32
the buildings to be able to handle the
recycling as a drop-
off,
so we are
currently operating that right now, wish to
continue
operating that along with our transfer site.
Q.
Is that
—
would that be a stand-alone process, the recycling,
if you weren’t doing the transfer station in the near future?
A.
Economically impossible to continue recycling withoutthe
transfer facility.
Examination of Tracy Suffer by Mr.
Rolf, R.
at C 190.
Instead of basing its decision on the statutory criteria, the County Board based its
decision on Suffer’s threat to close a recycling center it established
at this location if
siting approval for this transfer station was denied.
See,
e.g., County Board member C.
Voelker’s prefatory statement in the County Board’s decision regarding recycling at this
location.
R.
at C437.
The significance that Suffer’s threat played in the County Board’s
decision to approve local siting for the transfer station despite the manifest weight ofthe
evidence, is
perhaps best described by the recycling center’s most ardent advocate, Nancy
Deters:
Q.
Do you remember reference by the county board chairman
during both ofthose meetings that recycling really wasn’t
one ofthe issues here, although that’s the issue that you
care about?
A.
I remember that Leon Gobczynski said that,
but board
members brought it up
afterwards.
And it was like the
elephant
in the room.
Everybody knew that that was part of
it.
Tr.
at 37.
(Emphasis added.)
Stock &
Co
is certainly not against recycling.
Nevertheless, even operators of
transfer stations who recycle must demonstratethat the requirements of Section 39.2(a)
ofthe Act have been fulfilled.
Recycling was the “elephant in the room” that
apparently
33
.
caused the County Board to stray from its statutorily mandated criteria for decision
making.
Even prior to the hearing, County Board members had traveled to the site of
Suffer’s proposed transfer station,
and toured the recycling facility.
R.
at C191.
Suffer’s
“Traffic
Impact Study,”
however,
makes no mention and does not even address the traffic
from the recycling center already on-site.
R.
at 52~67.b0
In his opening statements regarding procedure, then County Board
Chairman
Gobczynski explained that comments should be addressed towards the proposed siting of
the transfer
station.
R.
at C133.
Nevertheless, Suffer quickly emphasized that it had no
intention of continuing the recycling operation that it had begun just prior to submitting
its application for local siting, unless the transfer station was approved by the County
Board.
R.
at C 190.
~
~
Tr. at 67-68.
A County Board member then sought
assurances
from Suffer that if local siting was granted, Suffer would continue recycling.
R.
at C192.
Another County Board member inquired about whether Suffer intended to
pick up any ofthe recyclables.
R.
at C193.
And, Ed Deters,
the County Board’s counsel
inquired as to what measures Suffer had taken to insure that persons dropping off
recyclable materials did
not become confused and go to the transfer station instead.
R.
C193-C194.
Later, however, after Suffer’s discussion about his recycling center and during the
testimony ofan opponent, then County Board Chairman Gobczynski stated that the
County Board could not accept comments based on recycling.
R.
at C226.
When an
opponent to the transfer station requested to be
allowed to address some ofthe issues
10
See also testimony that there
will be
a maximum ofeight vehicles in
and
out ofthe site each day
with
no mention of the additional vehicles accessing the recycling center-(R. at
174).
34
relating to recycling that Sufferhad discussed, then County Board Chairman Gobczynski
stated, in pertinent part, as follows:
.
.
And an issue of-- myselfpersonally, and I
can only•speak personally
--
.
the issue of recycling has absolutely nothing to do with why I’m here
tonight.
R.
at
C290.
Nevertheless, immediately after the parties moved their exhibits into evidence,
another County Board member
stated that public comments about recycling could be
submitted.
R. at C291.
Mr.
Grunloh:
*
*
*
We
still
are going to accept any information,
if somebody has a recycling standpoint to this, that can be submitted to us,
I would think.
Mr.
Gobczynski:
That’s a great point.
And
--
and we
--
we
certainly will take that and make that all
part ofthe record....
Rat
C291.
The fact that Section 39.2(c) ofthe Act mandates that the County Board ~gfl
consider any comment timely received, further adds to the confusion regarding the role
that the recycling center played in its decision-making here.
415
TLCS
5/39.2(c).
In her
public comment, Ms.
Deters colorfully describes what happened,
stating in pertinent part,
as follows:
Even though recycling per se may not have been officially on the agenda,
the questionwhether Suffer Sanitation Service receives its permit (for a
solid waste transfer station)
and the continuation ofthe fledgling recycling
service they provide,
are bound together
—
like it or not.
Package deal.
No
permit, no recycling.
As I recall Mr. Grunloh verified that with a question
to Tracy Suffer.
Also, it seemed to
me that Mr. Hedinger,
attorney for
Landfill 33, was about to get into the “recycling act” before time
ran
out,
atho sic
I don’t know what he had in mind.
R.
at C414.
35
It is evident that the County Board was confused
about the recycling issue and
whether testimony on that issue could be considered.
As a result ofthis confusion,
Suffer
was allowed to present evidence that the transfer facility was needed in order for
recycling to take place
in Effingham County.
Nevertheless, those opposed to the facility
were not allowed to present evidence ofthe other alternatives that are already available,
except as public comment.
See,
e.g., R.
at C40:3.
Thus,
a remand with instructions to the
County Board on how to proceed with this issue in a fundamentally fair manner would be
appropriate at a minimum.
The proceedings were also potentially
affected by bias
stemming from familial
relationships that were not disclosed.
C.
Potential Bias Due to Non-Disclosure ofFamilial Relationships
For example, it is undisputed that Duane Stock is the first cousin ofCounty Board
member Carolyn Willenborg.
Tr. at 45.
Nevertheless, nowhere
in the Record ofthe
proceedings below was that relationship disclosed by the County Board.
More
importantly, however, the son!mother relationship of the State’s Attorney, Ed Deters,
who provided legal
counsel to the County Board on this matter,
and Nancy Deters, the
above-referenced outspoken advocate for the recycling center and thus also for the
transfer station, was
also never disclosed.
~
Tr.
at 28-39.
By not disclosing these
relationships,
participants were precluded from considering options they may otherwise
have pursued and the public was prevented from fully ensuring that the decision-making
process was unbiased.
The Illinois Rules ofProfessional Conduct, provide guidance as to what may be
considered a conflict of interest, providing, in pertinent part, as follows:
A lawyer shall not represent a client if the representation ofthat client may
be materially limited by the lawyer’s responsibilities.. .to a third person, or
36
n
by the lawyer’s own interests, unless:
(1)
the lawyer reasonably believes the representation will not be
adversely affected; and
(2)
the client consents after disclosure.
Illinois Rules ofProfessional Conduct, Rule
1.7(b).
Here,
there is at least an
impression that Ed Deters’
representation ofthe County
—~
Board may havebeen materially limited by his responsibilities to his mother, or by his
•
own interests in notta~nga position in opposition to that ofhis mother.
For this reason
,
alone, this relationship should have been disclosed and recusal considered.
$~,
e.g.,
Statements ofEd Deters at Hearing.
Tr.
at 51.
This is not a case of brother-in-laws who
share office space acting as hearing
officer and
counsel to the municipal decision maker, respectively.
Contra, American
Bottom Conservancy, et al.. v. Village ofFairmont,
et. al., No. 00-200, 2000 Ill.
Env.
Lexis 665
(IPCB,
Oct.
19, 2000).
This
a case where the mother ofthe attorney who was
to advise the County Board on evidentiary and other legal issues took an active role
in
support ofthe applicant.
For example, Ms.
Deters (who incidentally does not even reside
in Effingham County) described concerns raised by an opponent ofthe transfer station as
a “sad commentary” and the “relentless use ofscare tactics.”
R.
at C414; Tr.
at 36.
Ms.
Deters gathered about 240
signatures to a petition asking that the County Board
“cooperate with Suffer Sanitation Service
in continuing its recycling program in
Effingham County.”
R. at C404-C413.
Ms. Deters even vouched for Suffer’s character.
R.
at C414.
Nevertheless, the fact that the decision-maker’s counselor-at-law was her son
T
was never properly disclosed.
37
Moreover,
at hearing, Mr. Deters suggested that he
might even have a role in the
decision-making process.
R. at C130.
And, Mr. Deters did take an active role during the
hearing, including asking leading questions of Suffer’s witnesses, which resulted in
one
witness suggesting that any technical concerns would be considered by the JEPA, and
that the County Board need not trouble itself with them.
R.
at C269,
C193-C194.
A
remand with disclosure ofthis
relationship is therefore required at. a minimum.
The
participants and the public at large had the right to know about such relationships,
especially the one
betweenthe recycling center and transfer station’s most ardent
supporter and the attorney on whom the decision-maker relied for its
counsel.
D.
Tours Of The Site By The County, Without All Parties Invited
In addition, the Record indicates that
exparte
contacts occurred betweenthe
Applicant and the County Board,
thereby biasing the County Board and
resulting in its
decision to approve local siting even though the criteria had not been met.
For example,
meeting
minutes ofthe County Board refer to a decision to tour the
site, and nowhere
does the Record reflect that this tour did not occur.
Chr.
Gobczynski suggested that the Board set a date to go through the
Solid Waste Transfer Station.
*
*
*
It was decided to tour the transfer
station site on Wednesday, July 31,
2002 at 6:30 PM.
Minutes of Effingham County Board Meeting on May 20, 2002.
R.
at C. 109.
Furthermore, at the hearing before the County Board, during the examination of
Tracy Suffer by then Chairman Mr. Gobczynski, the following exchange took place:
Q.
We’ve seen
—
we’ve seen a slide ofthe operation.
Could
you point out which building
currently houses the
—
the
recycling operation on
A.
Ifyou give me a minute to look at these for a minute, make
sure I’ve got the right one.
38
• Q.
Yeah.
I think that one’s it.
A.
This
one here’s a little better.
The recycling operation, the
traffic
comes in through this area right here, which is also
the
scale house and the scale.
They continue forward to
this part
and make a left and go through.
*
*
*
Iwas also
visited by the waste committee ofEffingham County prior
to when I started this
operation, and they
had the chance to
visit how we run our recycling drop-offfacility.
Examination
of Tracy Sutter by
Mr.
Gobczynski,
R. at Cl91.
(Emphasis added.)
At the hearing on fundamental fairness,
Tracy Suffer took the stand
in an offer of
proof.
Tr.
at 60-74.
Mr.
Suffer admitted that the Waste Committee ofthe County Board
had been to the site approximately one month prior to
Suffer’s application being filed.
Tr.
at 67-68.
Suffer admitted that the County Board members toured the building to be
used for the transfer station, and that the expected operations ofthe transfer station was
“possibly in their mind.”
Tr. at 69-70.
Suffer said that he did
not recall whether he talked
to the County Board members about the transfer station during this visit, stating in
pertinent part as follows:
I don’t recall
that we ever had
--
I’m not saying I didn’t, you know, have
some conversations in regards to it, to.that.
I don’t recall.
Tr. at 71.
Fundamental fairness requires that representatives of all parties to the siting
proceeding be given an opportunity to accompany the local governing body when it takes
such a tour.
Spill, et al.
v: City ofMadison and Metro-East, LLC, PCB 96-91,
1996 Ill.
Env. Lexis 250
at *26 (IPCB March 21,
1996). ‘Here,
Stock & Co.
and other opponents
ofthe transfer station were prejudiced by the factthat the general public was excluded
from the tour and not given equal access to information obtained from the tour by the
39
participating
County Board members.
The County Board’s failure to include the
information regarding the tour (or tours) in the record and make it available to the public
for comment or response rendered the process fundamentally unfair.
See,
~.pfflat *29.
As
explained above, the manifest weight ofthe evidence demonstrates Suffer’s
transfer station
endangers the public health,
safety, and welfare, and
is not needed.
Similarly, the manifest weight of the evidence demonstrates that Suffer’s “Plan of
Operations” contains minimal,
and, in some cases, no measures to address the danger to
the surrounding area from fire,
spills, and other operational accidents, to protect the value
ofthe surrounding properties, or to minimize incompatibility with the surrounding area.
The County Board’s decision to approve local
siting despite Suffer’s failure to
demonstratethat the criteria had been satisfied is the result offundamentally unfair
proceedings.
At least one and possibly two
exparte
site visits by the County Board
occurred.
And, the fact that the primary advocate forthe transfer station is the mother of
the County Board’s attorney was never disclosed.
The County Board was confused as to
the proper procedure to apply, and thus, the threatened closure ofthe recycling center was
allowed to override Suffer’s failure to satisfy the statutory criterion.
Moreover,
an
adequate record for appeal was not made, because the transcript ofthe hearing before the
County Board was not made available.
Thus, the lack offundamental fairness in these
proceedings requires reversal ofthe siting approval, or in the alternative, a remand.
IV.
REVERSAL (OR, AT A
MIMMUM,
REMAND) OF THE COUNTY
BOARD’S
DECISION IS REQUIRED
Due to the failure ofthe applicant to provide
sufficient. information on the above
statutorily mandated criteria, the County Board’s decision to grant siting approval forthe
proposed transfer station is against the manifest weight of the evidence.
As a result, the
40
County Board’s decision must be reversed.
The lack offundamental fairness surrounding
the hearing, decision, and preparation of the record for appeal requires reversal ofthe
‘
siting approval, or in the alternative, that the matter be remanded to the County Board for
a new hearing.
WHEREFORE, for the above-listed reasons, Petitioner, STOCK &
COMPANY,
LLC, asks that the Illinois Pollution Control Board reverse the Effingham County
Board’s approval ofthe
siting ofa solid waste transfer station requested by the applicant,
Suffer Sanitation Services,
and grant in favor of STOCK & COMPANY,
LLC, any other
relief that the Illinois Pollution Control Board deems appropriate.
STOCK &
COMPANY, LLC,
Petitioner,
BY:_____________________
One ofIts Attorneys
Dated: January 9, 2003
Christine
G. Zeman
David M. Walter
HODGE DWYERZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
STOK:001/FiI/Brief
of Stock & Co.
‘41
