ILLINOIS POLLUTION CONTROL BOARD

February

15,

1996

CONCERNED CITIZENS OF WILLIAMSON)

COUNTY ANDREV. PAUL CRAIN AND

)

ROSE ROWELL,

as members ofthe

)

Concerned Citizens ofWilliamson County,

)

Petitioners,

)

96-60

)

(Third Party)

BILLKIBLER DEVELOPMENT CORP.,

)

(Landfill

Siting

Review)

alk/a KIBLER DEVELOPMENT CORP.,

)

AND THE WILLIAMSON COUNTY

)

BOARD OF COMMESSIONERS,

)

Respondents.

)

KENNETH A. BLEYER, ESQ., APPEARED ON BEHALF OF THE PETITIONERS;

THOMAS J. IMMEL, ESQ., APPEARED ON BEHALF OF KIBLER DEVELOPMENT

CORPORATION.

OPINION AN)

ORDER OF THE BOARD (by G. T. (Jirard):

This matter is before theBoard on a September

14,

1995,

petition for review, filed by

Concerned Citizens ofWilliamson County, Paul Cram

and Rose Rowell (collectively CCWC).

The Board notes that only respondent Bill Kibler Development Corporation (KDC) filed an

appearance in this proceeding.

Hearing on this matter was heldbefore ChiefBoard Hearing

Officer Michael Wallace on December

13,

1995,

in Marion, Williamson County, Illinois.

Several

members ofthe public were present and made statements on the record in this proceeding.

CCWC’s petition was filed pursuant to Section 40.1 ofthe Illinois Environmental

Protection Act (Act).

(415 ILCS

5/1

seq.

(1994).) For the reasons enunciated below, the

Board finds that the proceedings before the Wiffiamson County Board of Commissioners

(Williamson County Board) were ftindamentally fair.

The Board also finds that the decision ofthc

Williamson County Board with respect to the landfill siting criteria at Section 39.2 ofthe Act (415

ILCS 5/39.2) was not against the manifest weight ofthe evidence.

The Board affirms the

Williamson County Board landfill siting decision.

LEGAL FRAMEWORK

Pursuant to Section 3 9(c) and 3 9.2(a) ofthe Act, an applicant for a new pollution

control facility is required to request and receive siting approvalfrom the local

government before a development or construction permit is issued by the Tilinois

Environmental Protection Agency (“Agency”).

(415

ILCS

5/39(c)

and 5/39.2(a).)

Section 39.2(a) provides that local authorities

areto consider nine criteria when reviewing

an application for landfill siting approval.

Only if the local body finds that all applicable

criteria have been met by the applicant can landfill siting be granted.

Section 40.1 ofthe Act (415 ILCS

5/40.1)

authorizes appeal to the Board ofa local

government decision to grant landfill siting approval.

Section 40.1 ofthe Act also requires the

Board to reviewthe proceedings before the local siting authority to assure ftindamental fairness.

In E & E Hauling, Inc. v.

1PCB (2d Dist.

1983),

116 Ill.App.3d 586,

594, 451 N.E.2d

555,

564,

affd inpart (1985),

107 Ill.2d 33, 481 N.E.2d 664, the appellate court found that although

citizens before a local decision-maker arenot entitled to a fair hearing by constitutional

guarantees ofdue process, procedures at the local level must comport with due process standards

offtindamental fairness.

The court held that standards ofadjudicative due process must be

applied.

(See also Industrial Fuels, 227

Il1.App.3d 533,

592 NE~2d

148; Iat~.

188 TilApp

lid

994,

544 N.E.2d 1176.)

Due process requirements aredetermined by balancing theweight ofthe

individual’s interest against society’s interest in effective and efficient governmental operation.

(Waste Management ofIllinois Inc.

v. IPCB (2d Dist.

1989),

175 Ill.App.3d 1023,

530 N.E.2d

682.)

The manner in which the hearing is conducted, the opportunity to be heard, the existence of

ex pane contacts, prejudgment ofadjudicative facts, and the introduction ofevidence are

important, but not

rigid,

elements in assessing fUndamental fairness.

(Fledinger v. D & L Landfill,

Inc,~

(December 20,

1990), PCB

90-163,

117 PCB

117.)

Board review of a local government decision approving landfill siting must apply the

“manifest weight ofthe evidence” standard ofreview (Waste Management ofIllinois, Inc.

IPCB (1987),

160 Ill.App.3d 434,

112 Ill.Dec.

178,

513 N.E.2d

592;

see also City of~

IPCB (1984),

125 fll.App.3d 384,

80 fll.Dec. 650,

465

N.E.2d 996).

A decision is against the

manifest weight ofthe evidence if the oppositeresult is clearly evident,

plain, or indisputable from

a review ofthe evidence.

(Harris v.

Day,

115 Ill.App.3d 762,

451

N.E.2d 262.)

The province of

the hearingbody is to weigh the evidence, resolve conflicts in testimony, and assess the credibility

ofthe witnesses.

Merelybecause we could reach a different conclusion, is not sufficient to

warrant rcvcraal.

(City ofRockford v. IPC3

and Frink’s Industrial Waste, (2d Dist.

1984)125

Il1.App.3d 384,

465 N.E.2d996; Waste Management ofIllinois. Inc.

v. IPCB, (3dDist.

1984) 22

Il1.App.3d 639,

461 N.E.2d 542; Steinberg v. Petta.

(1st Dist. 1985)139 Ill.App.3d 503, 487

N.E.2d1064; Wlllowbrook Motel v.

IPCB.

(1st Dist. 1985) 135 fll.App.3d 343,

481 N.E.2d 1032.)

BACKGROUND

This petition forreview

arose from a previous case before theBoard in which the Board

remanded the proceeding to Williamson County.

(Concerned Citizens ofWilliamson County

al.

Bill Kibler Development and Williamson County Board of

Commissioners

et a!

PC~B

94..

262 (hereinafterPCB 94-262).)

InPCB 94-262, the Board found in an opinion and order dated

January

19,

1995, that the

exparte

comments by Mr.

Bill

Kibler concerning technical aspects of

the application at a meeting ofthe Williamson County Board on June 17,

1994 had ledto a

fundamentally unfair proceeding.

(PCB 94-262

1/19/95 at 8.)’

In addition to allowing Mr.

Kibler to address the technical merits ofthe application at that June 17,

1994, meeting, the

Williamson County Board had established that public comments would not be allowed atthe

meeting and audience members would be excluded if the audience attempted to participate in the

discussion.

(Id.)

The Board stated:

Clearly, the June 17 meeting was an

exparte

discussion albeit one that is

summarized in the public record.

(C0936.)

The existence

ofexparte

contacts is

an element in assessing fundamental fairness.

(Hedinger v. D & L Landfill, Inc.,

(December 20,

1990), PCB

90-163,

117 PCB

117.)

The Board does not take

issue with the County Board’s intended purpose at the

special meeting

June 17,

1994:

a publicly viewed discussion with the County Board’s experts on the

technical aspects ofthe application.

However, the participation ofonly one party

(Bill Kibler, owner of

Kibler

Development), in thediscussion, does not comport

with the adjudicatorystandard, including the exclusion

ofexparte

contacts.

(PCIB

94-262 1/19/95 at

9.)

InPCB 94-262, theBoard did not reach the reviewofthe nine criteriafound at Section

39.2 ofthe Act, because ofthefinding offlmdamental unfairness.

CCWC’s petition (PCB 94-262

Am. Pet. at 1-7) had challenged the Williamson County Board’s siting approval decision in

relation to several ofthe siting criteria at Section 39.2 oftheAct.

The Board determined that remand was the proper course ofaction for this proceeding

and remanded the caseto the Williamson County Board.

Q?CB 94-262 1/19/95

at 14.)

OnMarch

16,

1995, in response to a motion to

clarify theBoard stated in its order:

The orders from PCB 94-262 will be cited by date and page number; the petitioner’s briefin

PCB 94-262 will be citcd as “PCB 94-262 Pet. Br. at

_“;

the respondent’s briefin PCB 94-262

will be cited as “PCB 94-262 Res. Br.

_“;

the first amended petition in PCB 94-262 will be

cited as “PCB

94-262 Am. Pet. at

_“;

the Board hearing transcript in PCB 94-262 will be cited

as “PCB

94-262 Tr. at

“;

the petitioners’ briefin the instant case will be cited as “Pet. Br. at

_“;

the respondent’s briefin the instant case

will

be cited as “Res. Br. at

_“;

the record before

the Williamson County Board will be cited as “C

“;

and the transcript from theBoard’s

December

13,

1995,

hearing will be cited as “Tr.

“.

The August 23,

1994, decision ofthe Williamson

County Board of

Commissionersgranting siting approval to Kibler Development Corporation, is

hereby reversed and remanded as a result ofa fundamentally unfair proceeding.

Upon remand ofthis proceeding:

Williamson County shall provide notice ofpublic hearing, and hold

accordance with the provisions of Section 39.2 ofthe Act, including a

presentation, as nearly as practicable, ofthe statements made by Mr. Bill

Kibler

the June 17,

1994,

special meeting, as well as oppurtunity fur

questions concerning orrebuttal to, Mr. Kibler’s statement.

Mr. Bill Kibler

shall attend the public meeting and be available to address potential

questions concerning his statements ofJune 17,

1994.

Williamson County shall provide for a post-hearing comment period as

provided in Section 39.2 ofthe Act.

Williamson County’s siting decision must be based on the entire record

before it including the public hearingheld pursuant to this order, in

accordancewith Section 39.2 ofthe Act.

Williamson County’s siting decision shall be consistent with this order and

theBoard’s January

19,

1995, opinion in this proceeding.

The 120

day statutory decision time begins

35 days afterthe date ofthis

order.

This docket is closed.

(PCB 94-262

3/16/95

at 2.)

May

31,

1995, theFifth District Appellate Court dismissed an appeal by both CCWC

and KDC ofthe Board’sJanuary

19,

1995, opinion and order.

(Concerned Citizens of

Williamson County, et al.

and Kibler Development Corporation v.

Illinois Pollution

Control Board

and Williamson County Board ofConiniissione~~,

No.

5-95-0250,111. App. 5th District, May 31,

1995.)

The appeal was dismissed for lack ofjurisdiction on theBoard’s motion becausethe

orders in question were not final.

On remand, the Williamson County Board ofCommissioners noticed a public hearing in

the

Southernliinoisan

on June 2,

1995.

(C01208-C0121 1,

CO 1242.)

The notice indicated, in

part, that the public hearing had been ordered by theBoard to “present, as nearly as practicable,

the statements ofMr. Bill Kibler at theJune

17, 1994” special meeting ofthe Williamson

County

Board.

(Id.)

On June22,

1995, the Williamson County hearingwas held and statements were

taken from Mr. Bill Kibler and others.

On August 17,

1995, the Williamson County Board of

Commissioners met to discuss the landfill siting and did not vote on the application.

(COl4lS-

C0l419.)

The County’s Record from PCB 94-262 was incorporated into the County’s Record in

theinstant case by Williamson County Hearing Officer McMeen.

(CO 1282.)

The Board at this

time incorporates the transcript, briefs and opinions and orders from PCB 94-262 into this docket

by reference.

PRELIMINARY MATTERS

Waiver ofarguments

CCWC stated in its final briefthat CCWC waives any argument on certain issues.

(Pet.

Br.

15-16.)

CCWC waived argument regarding Mr. Bill Kiblcr’s credibility (Pet. Br.

at 14-15)

as well as argument on the timeliness ofthe inaction by the Williamson County Board.

(Pet. Br.

at 16.)

Therefore, theBoard will not further discuss those issues in this opinion.

HearingNotice for June 22.

1995

hearing

CCWC argues that the Board’s orders in PCB 94-262 were not complied with in that the

public notice ofthepublic hearing held pursuant to those orders did not “advise the public ofthe

purpose ofthe meeting on 22 June 1995”.

(Pet. Br. at 3.)

CCWC points out that the notice of

hearingindicated that thepurpose for thehearing scheduled June 22,

1995, was to take

“testimony from Bill Kibler”.

(Pet. Br. at 13.)

CCWC argues that this “is not what thepurpose

the

public hearing was according

to the orders of the Board”.

(Id.)

CCWC maintains that the

purpose ofthe hearingon remandwas “that a ‘new’ 39.2

public hearing be held which, in part,

was to include a recreation, as nearly as practicable, ofthestatements made by Bill Kibler on

June 1994”.

(Pet Br. at

13-14.)

After careful review ofthe notice (CO 1208-CO1211) and the arguments, theBoard finds

that the notice ofthe June 22,

1995,

hearing was sufficient.

(See

Infra

p.7.)

HearingNotice for Board’s December

13.

1995

hearing

CCWC asserts that improper notice was given for theBoard’s hearingbecause the

published notice appeared in the

Marion Dai~v

Republican.

(Pet. Br.

at 21-22.)

CCWC argues

that although the

Marion DailyRepublican

is published in Williamson County it is not generally

circulated in the county and thus notice oftheBoard’s hearing was invalid.

(Pet. Br. at 22.)

Section 40.1 ofthe Act states:

“TheBoard shall publish 21

day notice ofthe hearing on

the appeal in a newspaper ofgeneral circulation published in that county”.

(415 ILCS

5/40.1(a).)

CCWC concedesthat the

Marion

Daily

Republican

is published

Williamson County.

The

Marion DailyRepublican

is circulated within Williamson County; therefore, thejurisdictional

requirements have been met.

(Village ofLaGrange

et a!.

v. McCook Cogeneration Station

et a!.,

PCB 96-41 (December

1995).)

Board Hearing Officer rulings

CCWC seeks review ofrulings by the Board’s hearing officerin three areas.

First, CCWC

asserts that the hearing officer erred in denying petitioner’s emergency motion to reconvene the

discovery deposition ofBill Kibler.

(Pet. Br. at 4.)

Second, CCWC argues that the hearing

officer erred in quashing the subpoena ofMike

Post.

(Id.)

Third,

CCWC maintains that the

hearing officer erred in “refusing to allow petitioners theopportunity to elicit testimony from Bill

Kibler and other witnesses during the petition for review hearing”.

(Id.)

With reference to thefirst two alleged errors theBoard affirmsthe hearing officer’s

rulings.

A careful review ofthe arguments as well as the transcripts from the Board’s hearing and

the deposition, indicates therulings madeby thehearing officer were correct based on rules of

evidence and the Board’s own

procedural rules.

With referenceto the third alleged error, the

Board finds that the hearing officer did err in sustaining objections to thetestimony ofMax

Stucker and Lucinda Morgan.

The testimony ofthese witnesses dealt with the issue of

fundamentalfairness and wastherefore admissible.

Therefore, the offers ofproofwill be accepted

as testimony from Max Stucker and Lucinda Morgan and considered in renderingthe Board’s

decisionin this case.

ARGUMENTS

CCWC argues that the Board’s orderswere not complied within six areas.

Those six

areas are:

The Williamson County Board failed to conduct a “new hearing” on June 22,

1995.

(Pet Br.

at 3.)

KDC failed to makea case for its application for siting approval at the June 22,

1995, hearing.

(Id.)

The Williamson County Board hearing officer improperlytook “administrative

notice” ofthe record, allowed reference to it by KDC and advised the Williamson

County Board to

entertainthe same in its deliberations without proper foundation

orjustification.

(Id.)

Petitioners were denied an opportunity to question Bill Kibler on June 22,

1995,

to all matters germane to the comments he had made on June 17,

1994.

(Id.)

There was a “wholly inadequate effort made to include on the recordthe

statements ofMr. Kibler, as nearlyas practicable, atthe 22 June

1995, public

hearing”.

(Id.)

The Williamson

County Board never took a vote on theapplication.

(Pet. Br.

3-4.)

In addition,

a seventh issue was raised when CCWC argued that the June 22,

1995,

public hearing

identified changes that have occurred such to “challenge the accuracy ofthe proofon the record

in relation to the nine criteria ofSection 39.2 ofthe Act, so that Kibler could not have made its

case”.

(Pet. Br. at 3.)

Eachofthe seven issues in this appeal will be discussed below.

Williamson

County failed to conduct a “new

hearing” on June 22.

1995.

CCWC argues that the Williamson County Board failed to hold a “new public hearing”

contraryto the Board’s orders of January 19,

1995,

and March 16,

1995.

CCWC maintains that

the orders ofthe Board direct that a new public hearingbe held pursuant to Section 39.2 ofthe

Act; but do not establish “any limitations on the application of Section

392”

ofthe Act.

(Pet. Br.

5.)

CCWC asserts that a “cursory reading ofthe transcript” from June 22,

1995,

public hearing

establishes that Section 39.2 ofthe Act was not followed.

(Id.)

KDC maintains that the Board’sMarch 16,

1995, order “required” the Williamson County

Board to consider “everything that occurred regarding thepending KDC application 2ri~jto the

remand aswell as the June 22nd public hearing itself’.

(Res. Br. at 6.)

Thus, KDC appears to be

arguing that this is not a new proceeding but a continuation ofthe prior proceeding.

The Board agrees that this is a continuation ofthe prior proceeding.

The Board’s orders

ofJanuary

19,

1995,

and March

16,

1995, remanded this proceeding to cure an error which had

led to a fundamentally unfair proceeding.

Although the Board’s order closed theprevious docket,

theBoard did not require that the applicant provide notice ofa newpetition or a new petition be

filed.

Further, theBoard did not simply reverse the Williamson County Board but, instead, the

Board reversed and remanded this matter.

Clearly, theBoard did not intend that the application

process must begin anew.

The Board’s order ofMarch

16,

1995, clearly requiredthat a hearing

would be held and at that hearingMr. Kibler would testi& asto his statementsofJune

17,

1994.

The Board’s orders directed that a “new” hearing be held because the previous public hearing had

been held and the record closed.

The record indicates

that the Williamson County Board’s hearing officer (Patricia

McMeen) had a clear understanding ofthe Board’s orders on this issue.

Hearing Officer McMeen

stated:

It is my understanding ofthe PCB’s ordersthat the fundamentalfairness issue was

based upon the meeting ofJune

17,

1994.

That is why the decision was reversed

and the matter was remanded, that issue alone, and the basis is themeeting that

was held; therefore, I view this as a supplementalproceeding to correct that lack

fundamentalfairness.

(CO1259-C01260.)

Thus, the Boardfinds that Williamson County properly opened anew hearing, but

also included

the record from the prior proceeding.

KDC

failed to

make acase for its analication for siting approval at the June 22, 1995.

hearing.

The Williamson County Board hearinR officer imnroperlv took “administrative notice”

olfthe

record, allowed reference to

it by KDC and advisedthe Williamson County Board to entertain the

same in its deliberations without proper foundation or justification.

CCWC maintains that no record for the siting application was made because “absent

KDC’s request for administrative notice ofthe record oftheprior proceeding nothing was done

to make a case for siting”.

(Pet. Br. at 6.) CCWC then argues that itwas error for the

Williamson County hearing officerto takeadministrative notice ofthe “prior record” as no

foundationwas laid.

CCWC statesthat “time has elapsed sincethe making ofthat record” and

“circumstances have changed”.

(Pet. Br. at 14.)

KDC argues that this is

a continuation ofthe previous proceeding.

~Res.Br. at 6.)

Inall1

event, KDC

asserts that

it incorporated the entire record into its presentation ofJune 22,

1995,

and “handed the entirety over” to the Williamson County Board for decision.

(Id.)

The Board finds that County Hearing Officer McMeen appropriatelyincorporated the

County Record from PCB 94-262 into this proceeding.

As discussed above, the remand to the

Williamson County Board was in order to cure deficiencies in therecord from

expcrrte

comments,

not to beginthe application process anew.

Therefore, the Board finds that the record is sufficient

support the landfill siting decision ofthe Williamson County Board.

Petitioners were denied an opportunity to question Bill Kibler on June 22,

1995.

as to all

matters germane to the comments he had made on June 17.

1994.

CCWC states:

With this petition forreview the petitioner would show that had they been allowed

to asklegitimate questions within the scope ofwhat theBoard authorized upon

remand enlightening and provocative informationwould have surfaced which the

County should have known in making its determination on whether or not to site.

It was barring ofthe questions which made the proceedingsfundamentally unfair.

(Pet. Br. at

7.)

KDC maintains that County Hearing Officer McMeen wascorrect in precluding the cross-

examination ofMr. Bill Kibler “for four different reasons”.

(Res. Br. at 7.)

KDC first argues that

certain ofthe questions posed by CCWC related to issues which were “not even mentioned” on

June 17,

1994.

(Id)

Second, KDC

asserts that

with regard to those same issues, Mr. Kibler did

not discuss those issues in direct testimony.

(Id)

Third, KDC argues that the applicable statutory

criteriado not include the financial state ofthe applicant among them.

(Id)

And finally, KDC

asserts that based on Southwest Energy Corp.

v. PCB

(4th Dist.

Sept.

1995)

No. 4-94-0759,

petitioners do not have the rightto cross-examine witnesses at siting hearings.

(Id)

County HearingOfficer McMccn

sustained

objections by KDC’s attorney at CO 1297,

CO1309 and C013 11

ofthe County Record.

The first objection was that the question posed had

been asked and answered.

The second objection sustained was to the question “What are the

assets ofthe corporation?”.

(C01306-C01307.)

The last objection sustained was to the question

“How is your corporation affiliated with Fred Barbara (ph)?”

(CO 1310.)

Hearing Officer

McMeen madeher rulings on the record after hearing arguments by CCWC’s attorney, KDC’s

attorney and the county’s attorney.

The Board can find no argument on therecord or in the briefs

which convinces theBoard that County HearingOfficer McMeen ruled incorrectly.

County

HearingOfficer McMeen sustained objections to questions which were outaide the scope ofthe

testimony given by Mr.

Kibler on June 22,

1995,

and outside the scope ofstatements madeon

June 17,

1994.

Infact, therecord demonstrates that County Hearing Officer McMeen allowed a

great deal oflatitude to CCWC’s attorney in his cross-examination.

The Board finds that the

actions ofthe Williamson County’s Hearing Officer did not lead to a fundamentally unfair

proceeding.

There was a “wholly inadequate effort made to include oniherecord the statements ofMr.

Kibler. as nearly as practicable. at the 22

June

1995,

public hearing”.

CCWC argues that “much could have been presented” at the June 22,

1995, bearingto

establish what transpired atthe June 17,

1994,

County Board meeting.

(Pet. Br. at 11.)

CCWC

maintains that numerous witnesses could have been called to testify asto the statements made by

Mr. Kibler at the June

17,

1994,

County Board meeting.

(Id.)

CCWC further maintains that

as a

result “relevant information as to what Bill Kibler stated to the County” on June 17,

1994, has

never been made a part oftherecord.

(Pet. Br. at 12.)

Mr. Bill K.ibler testified as to what his statements were atthe June

17,

1994,

hearing.

testified that he recalled answering questions from Williamson County Board Commissioners on

June 17,

1994, regarding:

KDC operation ofthe landfill; the number ofemployees at the

proposed landfill; the slow process ofdevelopment ofa landfill; thebuilding ofan access road for

the proposed site; visibility ofthe landfill from a nearbymall; and the ultimate use ofthe landfill

property after acceptance ofwaste concluded.

(C01286-C01290.)

Mr. Kibler stated that his

responses to questions were based on the application and informationfrom the technical experts

who developed theapplication.

(Id.)

Mr. Kibler further indicated that he did not recall any

additional issuesthat he addressed to the Williamson County Board.

(Id.)

The testimony ofMax Stucker (Tr.

at 56-69) recalls that Mr. Kibler:

...talked about a lot ofthings.

He talked about the road closures, road

construction, traffic, the amount oftonnage that would be coming into the landfill.

And I believe he

yes he did.

that time that he would

be thedeveloper and

operator ofthe landfill.

He talked abouthours ofoperation.

That would be

from

therewas some discussion on that at one proposal,

7 to

3 and another

proposal 7 to 4 hours minus an hour, hour and a halfone way or the other for

covering up purposes.

(Tr.

at67.)

Lucinda Morgan testified that

(Tr. at 85-93) it

her

recall that “other things” were discussed at

the June

17,

1994, meeting.

(Tr.

89.)2

The Board finds

that the testimony of Mr. Kibler

ofJune 22,

1995, was sufficient to

establish the statements madeby Mr. Kibler on June 17,

1994.

The testimony provided by

CCWC at theBoard’s hearing demonstrates that although Mr. Kibler may not have

complete

The testimonyofMargaretDegan from theBoards hearing in PCB 94-262 was discussed in

this hearing and Board HearingOfficer Wallace took administrative notice ofthat testimony.

(Tr.

at 78.)

‘U

recall ofhis statements, the substance ofinformation he provided on June 17,

1994, was provided

on June 22,

1995.

Therefore, the Board finds that

the hearing ofJune 22,

1995, sufficiently cured

the deficiencies caused by Mr. Kibler’s

exparte

comments ofJune

17,

1994.

The Williamson County Board never took a vote on the application.

CCWC argues that pursuant to the Board’s January

19,

1995,

and March

16,

1995, orders

the Williamson County Board “was directed to make a decision”.

(Pet. Br. at

15.)

CCWC asserts

that thematter was before the Williamson County Board “not pursuant to statute but instead

pursuant to Board orders”.

(Id.)

CCWC states:

“The orders called for a decision to be madeand

there was no provision for default approval in the absence ofa decision, such as is the casewith

the statute.”

(Id.)

While theBoard’s order reversed and remanded this matter to the Williamson

County

Board, itwas for the specific purpose ofcuring the thndamental unfairness ofMr. Kibler’s

pane

comments on June

17,

1994.

Our decision did not specifically direct that a second vote be

takenby the Williamson

County Board.

In fact, theBoard’s orders anticipated that a decision

might not be made and imposed a decision deadline of 120 days.

We believe that the Williamson

County Board’s action ofholding a hearing for the limited purpose ofcuring our fundamental

fairness concerns effectively complied with the Roard’s remand orders.

Therefore, because the

Williamson County Board has taken no action to change its original siting approval decisionbased

on the additional information, we construe their action as an affirmation ofthe original decision

that siting should be granted.

As the Williamson County Board has cured our fundamental

fairness concerns, we may now address the four siting criteria which were challenged by the

petitioners and briefed fully by

all ofthe parties in the original docket (PCB 94-262).

Changes in relation to the nine criteria ofSection 39.2

ofthe Act.

CCWC also argued

that the June 22,

1995,

public hearing identified changes that have

occurred such to “challenge the accuracy ofthe proofon the record in relation to the nine criteria

ofSection 39.2 oftheAct,

so that Kibler could not have made its case”.

(Pet. Br. at 3.)

CCWC argues:

Time has elapsed since the making ofthe previous record, circumstances have

changed.

This fact was made clear when petitioner called David Fitzpatrick as a

witness.

Mr. Fitzpatrick testified that since the close ofthe prior record changes

had occurred which affected the accuracy ofthe needs assessment report tendered

by Kibler, particularly dealing with the Herrmn transfer station and the life ofit, all

ofwhich thefiled report totally discounted as irrelevant.

(Pet. Br.

15.)

The Board’s review ofthe nine criteria of Section 39.2 ofthe Act is based on whether or not the

decision ofthe local siting authority is againstthe manifest weight ofthe evidence contained in the

County Record.

The Board will restrict its reviewto the evidence already in the County Record

I’

on the nine criteria ofSection 3 9.2(a).

The Board cannot look to information that wasnot a part

ofthe County Record in theBoard’s review ofthe nine criteria found at Section 39.2(a) ofthe

Act.

Summary ofFundamental FairnessIssues

In conclusion, the Board finds that the Williamson

County Board has cured the

ftindamental unfairness created by Mr. Kibler’s comments at the June 17,

1994, Williamson

County Board meeting.

The Board also finds that thc Williamson County Board complied with

the Board’s orders ofJanuary

19,

1995,

and March 15,

1995, by holding theJune 22,

1995,

hearing.

We will now review the siting criteria challenged in PCB 94-262 to determine whether

or not Williamson County Board’s landfill siting decision was against themanifest weight ofthe

evidence.

CI-IALLENUBI.) SITINU CRITERIAFROM

SECTION 39.2 OF THE ACT

Now that theBoard has found that the Williamson County Board decision to grant landfill

siting approvalwas fundamentally fair, wewill review the siting criteria challenged in PCB 94-

262.

In PCB

94-262, CCWC challenged the landfill siting approval in relation to Criteria #1,

and

6 found at Section 39.2(a) ofthe Act (415 ILCS 5/392(a)(1),

(2), (3), and (ñ)).

We will

review each ofthe challenged criteria below, by applying a manifest weight ofthe evidence

standard.

Criterion

The facility is necessary to accommodate the waste needs ofthe area it is intended to

serve.

(415 ILCS

5/39.2(a)(1).)

CCWC challenges Criterion I (PCB 94-262 Am. Pet. at

5-6)

on the basis that KDC failed

to quality its expert, Michael Rapps, prior to testimony regarding need for a regional landfill.

Petitioners also allege that suchtestimony was given without Mr. Rapps gathering information

crucial to forming an opinion on need. The petitioners state that Mr. Rapps did not how of

Herrin Landifil plans and did not consider Saline County landfill northe Southern Illinois Regional

Landfill. (PCB 94-262 Am. Pet. at

5-6.)

In response, KDC argued that Mr. Rapps indicated that theneed for the landfill was

manifest and supported by the published reports oftheAgency concerning remaining landfill

capacity in southern illinois.

(PCB 94-262 Res. Br.

at 12; C0023-C0029, C0577-C0583.)

Further, applicant contends that Mr. Rapps’ testimony, subjectto cross-examination, was not

contradicted by other evidence.

(PCB 94-262 Res. Br. at 12.)

After reviewing the record, the Board finds the decision by the Williamson County Board

was not against the manifest weight ofthe evidence in relation to Criterion

The record before

the Williamson County Board included a report prepared by Rapps Engineering and Applied

Science entitled, “Needs Assessment” dated December 1991 and an “Update to theDecember,

1991 Needs Assessment, dated January

1994”.

(C0023-C0029.)

The engineering firm

concluded in this “Needs Assessment” that the entire region has only a fewyears oflandfill

capacity remalning.

(C0026, C0027.)

The Rapps report did consider the Herrin Landfill and

other area landfills.

(C0024).

Mr. Rapps testified before the Williamson County Board hearing

on June 2 and 3,

1994 (C0573-C0576) concerning his qualifications and expertise.

Mr. Rapps

further testified about reports generated by his engineering firm on the needfor an additional

landfill as proposed in the application.

(C0577-C0579.) Mr. Rapps was not offered as an expert

witness, but to explain the needs assessment report that he prepared for

KDC.

(C05R0.)

Mr.

Rapps was subject to cross-examination by thepetitioners and the petitioners did not present any

evidenceon the issue ofneed in the County Record.

Criterion 2:

The faciliw is so

designed. located, and nronosed to be operated that the public

health, safety, and welfarewill be protected.

(415 ILCS 5/39.2(aY2).)

CCWC challenges Criterion 2 (PCB 94-262 Am. Pet.

at 6) on the basis that the

Williamson County Board was not given enough informationon the issue ofprotecting the public

health, safety, and welfare.

Petitioners allege that the issues ofsubsidence fault dangers were

explained inadequately and that possible questions about site stability require independent

geological studies.

(PCB 94-262 Pet. Br. at 27-28.) Petitioners also allege that theproximity of

the mall, a plannedretirement community, and the Big Muddy Cemetery, were not addressed.

(PCB 94-262 Pet. Br. at 28.)

Further, petitioners allege that a neighboring ammunitions ground

was not checked for groundwater quality, that closure use and day to day management practices

were not addressed, and that Mr. Rapps could not testify to the identity ofthe landfill’s operator.

(PCB 94-262 Pet. Br. at 28.)

In response, KDC argues that the only evidence on the design, location, and operation of

the proposed landfill came from the applicant,Kibler Development Corporation.

(PCB 94-262

Res. Br. at

12.)

KDC noted that petitioners did not produce any contrary expert evidence.

(PCB

94-262 Res. Br. at 13.)

KDC asserts that the Williamson County Board had sufficient evidence to

justifij its final action in approving the application.

After reviewing therecord, theBoard finds that the Williamson County Board’s decision

was not against the manifest weight oftheevidence.

Included with theapplication was the

“Facility Design and Operation” plan developed by Rapps Engineering and Applied Science dated

January 27,

1994.

(CO 140)

The “Facility Design and Operation” plan addresses in detailthe

construction and operation oftheproposed landfill.

At the hearing conducted by the Williamson

County Board on June 2

and 3,

1994, Mr. Rapps testified concerning thefacility design (C0585)

and was subject to cross-examination.

Mr. Rapps stated that the landfill was designedto conform

to current Agency regulations and that mine subsidence was dealt with hi the design.

Mr. Rapps

stated that the design and plan of operations for the landfill was protective ofthe public health and

safety. (C0609).

Petitioners did not present any evidence on this criteria in the County Record.

Criterion 3:

The facility is so located so as to minimize the incomnatibility with the character of

the surrounding area and to minimize the effect on the value ofthe surrounding property.

(415

ILCS 5/39.2(a)(3).)

CCWC challenges Criterion 3 (PCB 94-262 Am. Pet. at 6) by alleging that KDC failed to

qualifyMr. Reeder as an expert on land value and that as an expert, he was unable to give

knowledgeable testimony in that Mr. Reeder could not identify the proposed landfill site when he

was given a full feature map.

(PCB 94-262 Pet. Br. at 29; C0508, C0517,

C0527.)

Petitioners

also assert that Mr. Reeder offered testimony on thehighest and best use ofthe property which

was not credible because ofhis conclusion that because the areawas a strip mine,

it was

unsuitable for otheruses.

~PCB94-262 Pet. Br. at 29.)

KDC argues that Mr. Reeder’s report was filed with the application, including a list ofhis

qualifications

(PCB 94-262 Res.

Br. at 13; C0063-C0137.)

KDC also notes that Mr. Reeder’s

report states that the proposed landfill was located to

minimize impact on the value ofthe

surrounding property.

(IPCB 94-262Res. Br. at 13; C0065.)

KDC also maintains examination of

thetranscript from the county hearing failsto reveal that Mr. Reeder was unable to give

knowledgeable testimony.

(PCB 94-262 Res. Br. at 13; C0495-C0545.)

Finally, KDC asserts

that the Williamson County Board placed

greater weight on

the evidence offered by Mr. Rcedcr

than on the counter-evidence presented by petitioners’

land appraiser, Mr. Havens, who authored

the “Landfill Impaction Report”.

(C0960-C0977.)

The Board finds that the Williamson County Board’s conclusionthat the proposed landfill

is so located so asto minimize the incompatibility with the character ofthe surrounding area and

to minimize the effect on the value ofthe surrounding property is supported by ample evidence in

the recordand was therefore, not againstthe manifest weight ofthe evidence.

(See e.g.,

Hedinger. et al.

v. D.L. Landfill. et al. (December 20,1990) 90-163.) KDC argued that Mr.

Reeder’s credentials were submitted as part ofhis appraisal report and that report wassubmitted

with the application to show that the landfill proposal was designedto minimize the impact on the

surrounding

property values.

(PCB

94-262 Res. Br. at

13; C0063-COl 37)

A review ofthe

transcript,

demonstrates that Mr. Reederwas fully qualified to testify as to the report he created

and to the land values.

(C0506-C0527.)

There is no credible evidenceto counterthe information

provided by Mr. Reeder suchthat the Williamson County Board’s decision is reversible on this

criterion.

The petitioners provided a “LandfillImpaction Report” 30 days following the public

hearing which was prepared by an appraiserhired by petitioners (C0960-C0977); however, while

the report offered

opinions on geology and economics; it

did not address minimizationofimpact

to the surrounding area.

It was appropriate for the Williamson

County Board to givegreater

weight to information provided by Mr. Reeder over that provided by the petitioners’ “Landfill

Impaction Report”.

As in the case ofA.R.F. Landfill. Inc.

v. IPCB

and Lake County, (2d Dist.

1988) 174 Ill.App.3d 82,

528 N.E.2d 390, the Board will not reweigh the evidence presented to

the Williamson County Board in the instant case.

Criterion 6:

The traffic patterns to or from thefacility are so designed asto minimize the impact

existing traffic flows.

(415 ILCS

5/39.2(a’)(6).)

CCWC challenges Criterion 6 (PCB 94-262 Am. Pet. at 6-7) on the basis that the local

unit ofgovernment did not have sufficient information upon which to make an informed decision

regarding impact on traffic flow.

The petitioners argue that KDC’s witnesses were not properly

qualified as experts such that the Williamson

County Board could not assess their credibility.

Additionally,

CCWC alleges various problems with thetraffic study,

including:

the study was

based on a “hearsay” discussion with the Illinois Departmentof Transportation (TOOT); the study

reflected erroneous dates; the study assumes a road closure in the future, but no impact

assessment wasmade regarding the closure; and the study failed to consider a secondary access

road, the impact on Route 13,

and the developing mall area.

(PCB 94-262 Pet. Br.

at 29-30.)

Finally,

CCWC argues that the Williamson County Board had insufficient information

becausethey had requested a current TOOT traffic study, but since it would not

be available for

the Williamson County Board’s consideration until two weeks afterthe County Record was

closed, the Williamson County Board therefore requestedthat Duane Wittenborn, a Williamson

County engineer, prepare a report.

(C0936.)

CCWC asserts that Mr. Wittenborn testified that his

report was constructed based on data and information provided by John Crawford, one ofthe

applicant’s experts.

~PCB94-262 Pet. Br. at 30; PCB 94-262 Tr.

at 116.)

Accordingly,

CCWC

argue that use ofthe report is in error becauseit is based on “ex parte” informationwhich had not

been cross-examined thereby denying CCWC the opportunity to develop the record.

(PCB 94-

262

Pet. Br. at 30.)

KDC asserts that petitioners are wrong to argue that the Williamson County Board had

insufficient

information

regarding the impact ofthe proposed facility on traffic flow.

(PCB 94-

262 Res. Br.

at 14.)

KDC notes that Engineer John Crawford completed a traffic study which

was submitted as part ofthe KDC application (PCB 94-262 Res. Br.

at 14; C0030-C0036) and

that he testified before the County Board.

(C0552.) In addition, KDC maintalns that the County

engineer, Mr. Wittenborn, submitted a staffreport which reached similar results as the Crawford

study (PCB 94-262 Res. Br. at

15; C1015-C1021) and noted Mr. Wittenborn’s testimony before

this Board.

(PCB 94-262 Tr.

at 112-116.)

As part ofthe application, KDC has a statutory obligation to show howtheproposal is

designed to minimize the traffic impact ofthe proposed facility, but that obligation has not been

construed to meanthat the applicant must eliminate any additional traffic impact.

(See Fairview

Area

Citizens Taskforce v. IPCB, (3d Dist.

1990)

144

Ill. Dcc.

659, 555

N.E. 2d

1178,

1186.)

There is sufficient information in this case to support a finding by the Williamson County Board

that thetraffic impact ofthe proposal would be minimized.

In addition, there was information in

the record to

show that the impact on traffic flowfrom the proposed landfill would be minimal.

John Crawford, the engineer hired on behalfofKDC,

submitted informationregarding the impact

ofthe proposed traffic flow as part ofthe original application.

The report concluded that

increased traffic due to the landfill operations would have only a minimal impact.

(C003 1.)

County engineer, Mr. Wittenbom,

did a similar study reaching the same conclusion and his report

is a matterofrecord.

(C10l5-C1021.)

Additionally, he testified atthe Pollution Control Board’s

hearing on December

19,

1994 that he viewed his analysis as more conservative than Crawford’s

because he increased the number ofassumed vehicles that would go to the new landfill (PCB 94-

262 Tr. at

116), and he still concluded the impact on traffic flow would be minimal.

(C1018.)

That the Williamson County Board chose to credit the conclusions ofits own engineer in making

a decision does not render the Williamson County Board’s decision against the manifest weight of

the evidence.

Units oflocal government are entitled to do so.

Importantly, we will not reweigh

the evidencebefore the Williamson County Board.

The Board will not substitute

its judgment in

such a circumstance.

(See e.g. Mdllenry County Landfill, Inc.

v. IPCB, (2dDist.

1987)154

Ill.App.3d 89, 506 N.E.2d 372, 381.)

CONCLUSION

This proceeding is a result of a reversal and remand from this Board to Williamson County

in PCB 94-262.

The reversaland remand was necessary to cure fundamental unfairness which

resultedfrom statements to the Williamson County Board by the applicant’s representative, Mr.

Bill Kibler on June 17,

1994.

In response to the Board’s remand order, the Williamson County

Board noticed and held a hearing on June 22,

1995, to allow testimony regarding Mr. Kibler’s

statements ofJune 17,

1994.

The Board finds that the Williamson County Board complied with

theBoard’s orders ofJanuary

19,

1995, and March

15,

1995, in holdingthe June 22,

1995,

hearing.

The Board further finds that the procedures usedby the Williamson County Board were

fundamentally fair.

Additionally, the Board finds that the Williamson County Board’s decision on

the fourchallenged criteria from Section 3 9.2(a) ofthe Act was not againstthe manifest weight of

the evidence.

ORDER

The Board finds that the procedures before the Williamson County Board of

Commissionerswere fundamentally fairand in compliance with previous ordersby the Illinois

Pollution Control Board.

Further, the decision ofthe Williamson County Board of

Commissionersto site a landfill in Williamson County as proposed by Kibler Development

Corporation is not against the manifest weight ofthe evidence with respect to the siting criteria in

Section 39.2 ofthe Illinois Environmental Protection Act (415 ILCS 5/39.2).

The decisionby the

Williamson County Board to site a landfill proposed by Kibler Development Corporation is hereby

affirmed.

This docket is closed.

It)

IT IS

SO ORDERED.

Board Members Emmett Dunham and Joseph Yi concur.

Section 41 oftheEnvironmental Protection Act (415 ILCS

5/41 (1994)) provides for the

appeal offinalBoard orders within 35 days ofthe date of

service

ofthis order.

The Rules ofthe

Supreme Court ofIllinois establish filing requirements.

(See also

35 Ill.Adm.Code

10 1.246

“Motions for reconsideration”.)

I, DorothyM.

Gunn, Clerk ofthe Illinois Pollution Controj~oard,

hereby certify that the

above opinion and order was adopted on the

/f~

day of

1996,

byavoteof

7eV

Dorothy

,?4inn, Clerk

illinois Pollthfon Control Board