TTLTNOTS
POLLUTIoN
CONTROL
BOARD
October
5,
1995
SIERRA CLUB, MADISON COUNTY
)
CONSERVATION ALLIANCE,
and
)
JIM BENSMAN,
)
Petitioners,
v.
)
PCB 95—174
)
(Pollution Control Facility
CITY OF WOOD RIVER,
)
Siting Appeal)
WOOD RIVER PARTNERS,
L. L. C.,
)
Respondents.
WAYNE FREEMAN APPEARED ON BEHALF OF THE SIERRA CLUB,
ILLINOIS
CHAPTER;
JEAN BOWERS AND KATHY ANDRIA APPEARED ON BEHALF OF THE MADISON
COUNTY CONSERVATION ALLIANCE;
JIM BENSNAN APPEARED ON HIS OWN BEHALF;
CHRISTINE ZENAN,
LADONNA DRIVER AND RENIE BASSETT APPEARED ON
BEHALF OF THE CITY OF WOOD RIVER;
JANE PIGOTT APPEARED ON BEHALF OF WOOD RIVER PARTNERS,
L.L.C.
OPINION AND ORDER OF THE BOARD
(by R.C.
Flemal):
On June 19,
1995 the Sierra Club,
Madison County
Conservation Alliance,
and Jim Bensman (petitioners)
timely filed
the instant petition
for hearing and review of a siting decision
with the Pollution Control Board
(Board).
Petitioners contest
the May
15,
1995 decision of the City of Wood River
(City)
approving the site application of Wood River Partners,
L.L.C.’s’
(Wood River Partners)
pollution control facility.
The facility
at issue is an incinerator.
The Environmental
Protection Act
(Act)
(415 ILCS 5/1 et
seq.
(1994)) provides that before the State may issue a permit for
1
The filings refer to Wood River Partners, L.L.C.
as the
applicant.
However,
at
various places
in the record
(e.g.,
Bd.
Tr. at 19-20)
the applicant
is also identified as Polsky Energy
Corporation.
Wood River Partners is
a wholly-owned affiliate of
Poisky Energy Corporation.
(WRP Br.
at
1.)
operation of a new pollution control facility2, the permit
applicant must obtain siting approval from the appropriate unit
of local government.
The conditions under which this local site
approval is to be sought and the conditions under which the local
decision is to be made are specified at Section 39 through 39.2
of the Act
(415 ILCS
5/39 to 39.2
(1994)).
In the instant matter
Wood River Partners sought and obtained approval from the City
for siting its proposed incinerator.
The Board’s responsibility in this matter also is provided
for in the Act.
The Board is charged there with responsibility
for hearing appeals of local siting decisions.
The conditions
under which an appeal may be brought to the Board, and the
conditions under which the Board is required to make its
decision, are specified at Section 40.1 of the Act
(415 ILCS
5/40.1
(1994)).
In the instant matter petitioners appeal the
siting approval granted by the City.
Based
upon
the
reasons
below,
the Board finds the City’s
siting process was not fundamentally unfair, and the City’s
decision granting siting to Wood River Partners was not against
the manifest weight of the evidence.
Therefore the Board herein
affirms the City’s decision.
PROCEDURAL HISTORY
By order dated June 22, 1995 the Board found the instant
petition was properly before the Board.
The Board accordingly
set the matter for hearing.
Notice of hearing was published in
the Alton Telegraph.
Hearing was held on August
17, 1995 before Board hearing
officer Michael Wallace in Edwardsville,
Illinois.
Post—hearing
briefs were filed by Wood River Partners and the City on
september 5,
1995, and by petitioners on September 8,
1995; the
Madison County Conservation Alliance
(MCCA)
filed a separate
post-hearing brief on September
6, 1995.
BACKGROUND
On December 12,
1994 Wood River Partners filed an
application with the City for siting approval of a pollution
control facility called the Wood River Energy Center, located in
the Lewis and Clark EnviroTECH Business Park in Wood River,
2
A pollution control facility, pursuant to definition in
the Act at Section 3.32
(415 ILCS 5/3.32
(1994)), includes
incinerators.
:3
Illinois.
(R.
at C01102.)3
The Energy Center will be a wood-to-
energy facility, receiving shipments of waste wood,
shredded tire
chips, and paper pellets, and converting these fuels into energy
via thermal combustion.
It will produce
32 megawatts (gross)
with net electrical output of 28 megawatts to be sold to Illinois
Power company.
(R.
at c00015.)
The facility will burn a maximum
of 310,000 tons per year of waste fuel at approximately 750 tons
per day.
(R.
at C00015.)
A public hearing was held by the City of Wood River
Pollution Control Hearing Committee (Hearing Committee)
on March
14 and 15,
1995.
Petitioners attended the March
14 and 15, 1995
hearings.
In addition, petitioners,
in the persons of Kathy
Andria and Jean Bowers representing the Madison County
Conservation Alliance, Jim Bensman representing himself, and
Wayne Freeman representing the Piasa Palisades Group of the
Sierra Club, presented testimony to the Hearing Committee.
Petitioners engaged in multiple instances of examination of the
citizens who
provided public comments and
of
the applicant.
This hearing was recorded by a court reporter and a
transcript of the hearing (local hearing transcript) was filed
with the City on April
6,
1995 and became part of the record
before the City.
The local hearing transcript was made available
to the public beginning at least April
7,
1995.
Additionally,
the City informed the public that a copy of the local hearing
transcript could be purchased directly from the court reporting
service at $1/page.
Wood River Partners purchased an additional
copy of the local hearing transcript and provided it to
petitioner Bensman on April 10th at no charge.
The public hearing was followed by
a 30-day period during
which the City accepted written public comment on the
application4.
The public comment period closed on April 14,
~ Petitioners’ petition will be cited as
(Pet.
at
_);
petitioners’ post-hearing brief will be cited as
(Pet.
Br.
at
_);
the City’s post—hearing brief will be cited as
(City Br.
at
_);
Wood River Partners’ post-hearing brief will be cited as
(WRP
Br. at
);
the Madison County Conservation Alliance’s post-
hearing brief will be cited as
(MCCA at
_);
the record before
the City will be cited as
(R.
at
);
the transcript before the
City will be cited as
(Tr.
at
_);
and the transcript before the
Board hearing officer will be cited as
(Bd.
Tr. at
_).
‘~
The 30-day public comment period is statutorily required
at Section 39.2(c)
of the Act;
“(t)he county board or governing
body of the municipality shall consider any comment received or
postmarked not later than 30 days after the date of the last
public hearing”.
(415 ILCS 5/39.2(c)
(1994).)
4
1995.
The Sierra Club, Madison County Conservation Alliance, and
Jim Bensman filed a joint 39-page comment
(R.
at C0l950—92) with
attachments
(R.
at C01993-2073).
Ms. Bowers and Ms. Andria filed
separate short comments
(R.
at C01949 and C02077—8,
respectively).
On April
3,
1995 the City, through its attorney and special
siting counsel, submitted a Summary Statement into the record
stating that “(i)n consideration of the information contained in
the application,
the testimony provided by the applicant at the
siting hearing,
as well as the recommendation of the city’s
consultant” all statutory siting criterion were satisfied,
“subject to the assurances expressed”.
(R. at C01886—94,
CC 1894
.
On May 1,
1995 the Hearing Committee issued a recommendation
to the City that conditional siting approval be granted, and that
the City’s April
3 Summary Statement be adopted as the City’s
Findings of Fact.
(R. at C02121-2.)
On May
15,
1995 the Wood
River City Council granted conditional siting approval in
Resolution No.
1266,
finding Wood River Partners had satisfied
all nine criteria required in Section 39.2 of the Act, and
adopted the Summary Statement as the City’s Findings of Fact.
(R.
at C02l28—47.)
MOTION TO CORRECT CERTIFICATE OF RECORD
As a preliminary matter, the Board notes that on August 24,
1995 the City filed a Motion to Correct Certificate of Record on
Appeal.
Petitioners have not filed a response to this motion.
The City contends that the list of exhibits for Section III
inadvertently gives the same title for Exhibits 18 and 19.
The
City notes that the correct title for Exhibit 19 should be
“Wetlands Plantings”, and moves that the title be so corrected.
The motion is hereby granted.
FUNDAMENTAL FAIRNESS
The Board is charged under its authority to hear appeals of
local siting approval,
to consider “the fundamental fairness of
the procedures used by the county board or the governing body of
the municipality in reaching its decision”
(415 ILCS 5/40.1(a)
(1994);
see also Concerned citizens or Williamson County v. Bill
Kibler Development Corp.
(January 19,
1995),
PCB 94-262.
In the
instant case, petitioners assert that the City’s decision
granting local 8iting approval
to Wood River Partners should be
overturned because it is fundamentally unfair and violates due
process based upon three arguments:
the unavailability of the
City’s hearing transcript, the conduct of the City’s hearing, and
the City’s Findings of Fact5.
Availability of the Transcript
It is well established that a local siting authority must
make the siting documents available for public viewing as a
requisite to a fair proceeding.
The Appellate Court in Tate v.
Illinois Pollution Control Board warned,
for example, that
“county boards should be aware that the failure to honor a
request to produce documents could jeopardize the fundamental
fairness of the proceedings”.
((4th Dist.
1989), 188 Ill.App.3d
994,
544 N.E.2c1 1176,
1191.)
At issue in the instant case is petitioners’ contention that
the City failed to provide a copy of the transcript of the local
siting hearing at its “actual cost of reproduction” as required
pursuant to Section 39.2(c)
of the Act, and as
a result that
petitioners were prejudiced because they did not have the
transcript when writing their post-hearing comments,
or had
insufficient time to prepare their public comments.
(Pet.
Br. at
1—9.)
Initially we must address whether the City was required to
provide a copy of the hearing transcript at all.
Section 39.2(c)
states in relevant part:
An applicant shall file a copy of its request, with the
county board of the county or the governing body of the
municipality in which the proposed site
is located.
The request shall include
(1) the substance of the
applicant’s proposal and
(2) all documents,
if any,
submitted as of that date to the Agency pertaining to
the proposed facility
.
.
.
All such documents or
other materials on file with the county board or
gpverning body or the municipality shall be
made
available for public inspection at the office of the
county board or the governing body of the municipality
and may be copied upon payment of the actual cost of
reproduction.
(415 ILCS 5/39.2(c)
(1994)
(emphasis
added).)
~ The
Board notes that at the Board’s hearing petitioners
raised for the first and only time some additional allegations or
unfairness, including failure of the City to provide objectors
with seating and work space equivalent to that provided to Wood
River Partners and to City staff.
(e.g.,
Bd. Tr.
at 42-43,
48.)
Inasmuch as these allegations have not been properly pled in
petitioners’ petition for review, the Board is unable to give
them further consideration.
b
Although Section 39.2(c) does not specifically mention the
local hearing transcript, the local hearing transcript was
clearly a “material on file” with the City,
and hence subject to
the availability requirement of Section 39.2(c).
We next address the issue of whether the local hearing
transcript was made available in a manner provided for in Section
39.2(c).
The pertinent facts are that the transcript was
received
by the City
from
the court reporter on April
6,
1995;
that a copy of the transcript was available at the offices of the
City for public review and use there beginning at least on April
7, 1995;
that on April
7,
1995 petitioners who inquired were told
by the City Clerk that the cost of reproducing additional copies
of the transcript was $1 per page6, the cost charged by the court
reporting service for additional copies; that on April
7,
1995
and no date thereafter did petitioners choose to obtain a copy of
the transcript
at the $1 per page rate;
that on April
10,
1995,
the next working day following April
7,
1995, petitioners in the
person of Mr. Bensman
were given
a copy of
the transcript at no
charge to petitioners.
It is uncontested that the City did make available a copy of
the local hearing transcript at City Hall for public viewing, and
that this copy was indeed reviewed by the public beginning at
least on April
7,
1995.
(Ed.
Tr.
at 74.)
However, petitioners
did not,
or contend that they could not due to personal
conflicts, utilize this copy.
The issue
is then whether the City should also have provided
carry—away copies of the transcript, and that these copies should
have been provided at a cost less than the $1 per page quoted to
petitioners by the City Clerk.
Petitioners contend that the “actual cost of reproduction”
was the City’s cost to copy the transcript using its own copying
resources, which according to the testimony of City Clerk Jean
Bruce, would normally be five cents a page.
(Bd.
Tr. at 76-77.)
Respondents contend, conversely,
that the “actual cost of
reproduction” is the cost to the City of obtaining any additional
copies from the reporting service.
(City Br. at
7; WRP Br.
at
6.)
The Board believes that the simple intent of the provision
within Section 39.2(c) that calls for payment of the “actual cost
of reproduction” is to allow the local siting bodies to
recovercosts that they legitimately incur in providing copies or
6
The full
local hearing transcript is 677 pages in length,
including indices.
-I
records7.
With this as the underlying principle,
we find that
the City did provide for copies of the local hearing transcript
at the actual cost of reproduction.
Therefore the City fulfilled
its obligation under Section 39.2(c).
The city was charged by the court reporting service at a
rate of $2.85 per page for the original copy and $1 per page for
each additional copy.
(Ed.
Tr.
at 76, Res.
Exh.
2.)
Within the
Board’s experience these are not atypical or unreasonable
charges.
Similarly, given the time,
personnel, materials, and
equipment necessary to reproduce a document as lengthy as the
local hearinq transcript, we cannot find that a $1 per page
charge makes the City’s procedure fundamentally unfair.
The
City’s action in requesting from petitioners a per page payment
equal to the per page charge the City would incur in obtaining
any additional copies of the local hearing transbript and is in
accordance with Section 39.2(c)
of the Act. did not make the
siting procedure fundamentally unfair.
Further, we do believe that it is significant that,
the
City’s representations of April
7,
1995 aside,
a copy of the
transcript was provided to petitioner Bensinan at no charge on
April 10,
19958.
This was the next working day, and we can find
no fault with the City’s vigor in obtaining a copy of such a
lengthy document in such short order no matter whether copied in—
house or otherwise.
Upon receipt of the transcript copy, Mr.
Bensman signed a receipt which allowed for other citizens who
contacted him to read the transcript at a time mutually
convenient.
(R.
at C0l925.)
Mr. Beneman testified at hearing
that “Polsky was willing to buy a transcript for us if I shared
it with others and I agreed to that”.
(Bd.
Tr. at 15.)
According to the record, none of the other participants utilized
Mr. Bensman’s copy prior to submitting their public comments.
Even if this Board was compelled to find that the City erred
in limiting public access to the local hearing transcript, we
would not be able to find that the error made the City’s
proceeding fundamentally unfair because we do not believe that
petitioners have demonstrated prejudice.
(See Citizens Against
Regional Landfill v.
County Board of Whiteside County and Waste
Manacrement of Illinois,
Inc.
(1993),
PCB 92-156.)
‘~‘
The Board notes that for requests made by third parties
for copies of Wood River Partner’s application, the City had the
application copied outside at
a commercial establishment,
and
charged the exact price charged to them by the commercial copier.
(Ed.
Tr.
at 60.).
8
Petitioner Bensman’s copy was paid for by Polsky Energy.
(R. at C01925.).
Petitioners contend that they required personal copies of
the local hearing transcript in order to prepare their post-
hearing public comments due no later than April
14,
1995.
(Bd.
Tr.
at
16, 30-31,
36,
47.)
Moreover, they contend that they
required the transcript
on Friday April
7,
1995 so as to allow
for its use over the weekend
of
April
8
and
9,
1995.
(Ed. Tr.
at
16,
36.)
While Mr. Bensman received a copy
of
the transcript on
Monday, April 10th,
as opposed to Friday, April 7th, arguably
limiting its substantial use in formulating petitioners’
comments, petitioners were sufficiently afforded other
independent safeguards to consider the City’s proceeding
fundamentally fair.
For instance, petitioners attended and
actively participated in the public hearing
(Bd.
Tr.
at 20-21,
32-35, 48), petitioner Ms. Andria tape recorded the hearing
(Bd.
Tr. at 28), petitioners were given the opportunity to view the
transcript at City Hall beginning on April 7th, petitioners
submitted significant public comments
(R.
at
C01949-2078),
and
petitioners were notified they could contact the court reporting
service directly to obtain a copy of the transcript
(Bd.
Tr. at
17).
Therefore in consideration of petitioners claim regarding
the alleged unavailability of the transcript, the Board finds the
City’s proceeding was conducted with no prejudice rising to the
level of fundamental unfairness.
This conclusion is based on the
availability of the local hearing transcript at the City Hall and
consideration of the quoted cost of the transcript,
on
recognition that petitioners were provided and utilized extensive
public interaction with the City’s siting process,
and that the
City’s conduct with respect to the transcript did not impair•
petitioners’ ability to prepare and submit post-hearing comments
sufficiently to warrant a finding of fundamental unfairness.
Conduct or the city. Hearing
Next the Board addresses petitioners’ claim that the conduct
of the March 14th and 15th meeting was fundamentally unfair.
Petitioners assert that they were led to believe that persons
giving oral comments at the hearing would not necessarily be
sworn or subject to cross-examination.
It is uncontested that
the hearing process did allow for written public comments, which
were not subject either to being sworn or to cross—examination.
The City itself indicates that it did not believe that all oral
comnienters would be sworn and subject to cross-examination.
(City Br. at p.
14.)
Nevertheless, the hearing officer ruled during the conduct
of the hearing that any statement for the public record would be
sworn and subject to cross-examination.
(Tr.
at 206-7.)
As the
basis for his decision, the hearing officer observed that “(a)ny
time you make--give testimony or make a statement in a public
hearing, you’re subject to cross—examination.
That is the
ultimate test of authenticity and credibility of the Anglo-
American judicial system.
And I think that we must permit cross-
examination.”
(Tr.
at 207.)
The hearing officer further ruled
that all testimony and statements were to be
made
under oath.
(Tr.
at 208.)
Petitioners
contend
that
this
action
of
the
hearing
officer
impacted the content and amount of comments made by the public
and was thereby fundamentally unfair.
(Pet.
Br.
at 9.)
The City provided for several “levels” of participation in
the hearing process.
This intent is apparent on the form
distributed to interested persons prior to the hearing,
on which
they were allowed to “preregister” for various types of
participation.
Five types of participation were listed:
1)
comment on the record but not under oath or subject to cross-
examination;
2) testify under oath and subject to cross—
examination;
3) present evidence;
4) question other witnesses; or
5) give an opening and summary statement.
The petitioners in the
instant action registered as follows: Jean Bowers chose #1
(R. at
C00737), Kathy Andria chose #4
(R.
at C00795),
and Jim Bensman
chose all five options
(R. at C00859).
In determining whether the City’s siting process was
fundamentally unfair we must address whether the action of the
hearing officer limiting oral presentation to sworn testimony and
allowing cross-examination of all sworn testimony constituted
fundamental unfairness.
In
a review of similar local siting decisions,
a similar
issue was raised in Daly v. Village of Robbins
(July
1,
1993),
PCB 93-52, PCB 93-54.
In Daly, petitioners claimed that the
hearing officer’s “arbitrary jettisoning of cross-questions”
violated their right or public participation and
made
the
hearing
fundamentally unfair.
The Board held that public participation
was not thwarted so as to make the hearing fundamentally unfair
where the hearing officer informed participants that duplicative
or irrelevant questions would not be asked, wrote the reason for
not asking the question on the form,
and where any questions not
asked were more fully explained in supplemental information
supplied to the village.
The hearing officer’s action in this matter likewise does
not rise to the level of rendering the city’s siting process
fundamentally
unfair.
The
Board
cannot see how it could be
fundamentally
fair to allow cross-examination of some
participants, including applicants, but somehow fundamentally
unfair to allow cross-examination of other participants,
including objectors,
as here.
Otherwise,
if the participants
were allowed to testify on the record at hearing without being
Lu
under oath and subject to cross-examination, the Board would have
been required to give their testimony lesser weight.
(See City
of Geneva v. Waste Management of Illinois,
Inc. and County Board,
County of Kane
(July
21, 1994), PCB 94-58;
Industrial Fuels and
Resources v.
City Council of the City of Harvey (September 27,
1990), PCB 90—53.)
The Board accordingly finds no fundamental unfairness
in the
manner
in
which the testimony
was
sought and examined by the
City.
Next the Board addresses petitioners claim that the conduct
of the hearing violated due process.
Although citizens before a
local decision-maker are not entitled to
a fair hearing by
constitutional guarantees of due process, procedures at the local
level must comport with due process standards of fundamental
fairness.
(Southwest Energy Corp.
v.
IPCB, Concerned Citizens
for a Better Environment,
and the City of Havana,
(4th Dist.
1995), No. 4-94-0759,
citing Tate v.
Pollution Control Board
(4th
Dist.
1989), 188 Ill.App.3c1 994,
1019,
544
N.E.2d 1176,
1193.)
Due process is a flexible concept and requires such procedural
protections as the particular situation demands.
(Scott v.
Department of Commerce
& Community Affairs
(1981),
84
Ill.2d 42,
51,
48 Ill.Dec.
560,
416 N.E.2d 1082.)
Appellate Courts have determined that due process of law
requires that all parties have an opportunity to cross-examine
witnesses and to offer evidence in rebuttal.
(Eugene Daly v.
Pollution Control Board, Village of Robbins,
and the Robbins
Resource Recovery Co.,
(1st Dist.,
No.
1-93-2671), citing
Abrahamson v.
Illinois Department of Professional Regulation
(1992),
153 Ill.
2d 76,
606 N~E.2d1111;
North Shore Sanitary
Dist.
v.
PCB,
2 Ill.App.3d 797,801, 277 N.E.
754,757, citing
Garces v. Department
of Reg.& Education,
118 Ill.App.2d 206,
254
N.E.2d 622 (1969).)
Due process requirements are determined by
balancing the weight of the individual’s interest against
society’s interest in effective and efficient governmental
operation.
(Waste Manaaement of Illinois Inc.
v.
IPCB
(2d Dist.
1989),
175 Ill.App.3d
1023,
530 N.E.2d 682.)
It has also
recently been observed that the local siting process does provide
opportunity for parties to place non-cross-examined comment on
the record as written public comment.
(Southwest Energy Corp.
V.
IPCB citing 415 ILCS 5/39.2(c).)
In the case at issue the hearing officer required cross—
examination of all testimony.
We tind the hearing otticer’s
action to be consistent with the long established belief of
courts that the safeguards and encouragement of truth provided
for by requiring
a
witness to be sworn and subject to cross—
examination far outweigh any undue influence on their testimony.
(See City of Geneva v. Waste Management of Illinois,
Inc., and
County Board,
County of Kane
(July
21,
1994), PCB 94-58,
citing
.L.L
Industrial Fuels and Resources v. City Council of the City of
Harvey (September 27, 1990), PCB 90-53.)
Indeed,
due process requires balancing interests,
including
weighing the minimal intrusion that exists when participants are
subject to cross—exaiuinatiun against the goal of
a reliable,
truthful siting process.
Accordingly the Board finds no due
process violation.
The City’s Findings of Fact
Petitioners’ third claim that the City’s procedures were
fundamentally unfair is directed at the sufficiency of the City’s
Findings of Fact.
Petitioners first assert the City failed to
consider timely filed public comments as required pursuant to
Section 39.2(c) and consequently prejudiced petitioners.
(Pet.
Br. at
10.)
Petitioners maintain that the City’s Findings of
Fact
(issued on May 15th) were almost identical to the City’s
prior Summary Statement
(issued on April 3rd or 4th) and
therefore the City could not have considered any comments
submitted in the intervening thirty days (between public hearings
held on March 14th and 15th,
and deadline for public comments,
April 14th).
(Pet.
Br.
at
10.)
Simply because the City adopted the conclusions of the
special siting counsel instead of the petitioners does not allow
for the conclusion that petitioners’ comments were not
considered.
Where there is conflicting evidence, the Board is
not free to reverse merely because the lower tribunal credits one
group of witnesses and does not credit the other.
(File v. D&L
Landfill,
Inc.
(5th Dist.
1991), 219 I1l.App.3d 897,
579 N.E.2d
1228;
Fairview Area Citizens Taskforce v. Pollution Control
Board
(3d Dist.
1990), 198 Ill.App.3d 541,
555 N.E.2d 1178, 1184;
Tate v.
Pollution Control Board
(4th Dist.
1989),
188 Ill.App.3d
994,
544 N.E.2d 1176,
1195; Waste Management of Illinois,Inc!
V.
Pollution Control Board
(2d Dist.
1989), 187 Ill.App.3d 79, b43
N.E.2d 505,
507.)
Simply because the local government could have
drawn different inferences and conclusions from conflicting
testimony is not a basis for the Board to reverse their findings.
File v.
D&L Landfill,
Inc.
(August 30,
1990), PCB 90—94,
aff’d
File
V.
D&L Landfill,
Inc.,
(5th Dist.
1991), 219 Ill.App.3d 897,
579 N.E.2d 1228).
Merely because the City did not substantially change its May
15 Findings of Fact from what was submitted by the City’s
attorney and special siting counsel on April 4th does not
constitute evidence that the City failed to consider the comments
made after hearing.
There exists a clear distinction between
whether the City considered the public comments and whether the
City found those comments to be sufficiently meritorious to alter
the proposed findings of fact.
12
Additionally, petitioners contend that because two council
members were absent at the public hearing the evidence presented
at public hearing could not have been considered.
(Pet.
Br.
at
10.)
However case law is well settled that council members need
not attend all hearings.
The appellate courts have affirmed the
Board in finding it acceptable for the decisionmaker to rely on
transcripts of the public hearing in rendering its decision.
(City of Rockford v. County of Winnebago,
(2d Dist.
1989), 542
N.E..2d 423;
Waste Management
of Illinois v. Pollution Control
Board
(2d Dist.
1984)
123 Ill.App.3d 1075,
79 Ill.Dec.
415,
463
N.E.2d 969
(“As long as the entire record was available for
review by the full county board all members heard the case
irrespective of their attendance.”).)
We therefore find that the
failure of two council members to attend the hearing did not
render these proceedings fundamentally unfair.
Lastly, petitioners contend that the Hearing Committee’s
recommendation and the City’s Resolution No. 1266 did not specify
the reasons for those decisions
in
accordance with Section
39.2 (a)
of the Act, thereby violating Section
39
•
2(e).
(Pet.
Br.
at 11.)
Petitioners allege the City was required to issue
a
specific finding for each criterion and the general language of
its finding that “all applicable requirements of Section 39.2 and
the Siting Ordinance have been met” was insufficient.
(Pet.
Br.
at 11.)
Although petitioners recognize the City was not required to
give a detailed explanation, they assert the City’s decision was
not specific enough to satisfy the Act because it did not give
any reasons.
Petitioners also argue that the City’s Findings of
Fact were not findings of fact,
but rather a summary of the
testimony qiven at hearinq.
(Pet.
Br.
at 12.)
The City was only required to indicate which of the Section
39.2 criteria have or have not been met; the City is under no
obligation to give a detailed explanation or
its decision.
(~
Hauling,
Inc.
v.
PCB,
(2d Dist.
1983), 451 N.E.2d 555,
116
Ill.App.3d 586.)
In sum, we find no violation of fundamental
fairness in reviewing the City’s Findings of Fact.
Based upon the record in this case, appellate court
decisions,
and review of Section 39.2 of the Act, the Board finds
the City’s siting process was not fundamentally unfair.
STATUTORY CRITERIA
It is specified in the Act that “local siting approval shall
be granted only if the proposed facility
meets” nine
specific
criteria.
(415 ILCS 5/39.2(a)
(1994).)
These criteria are found
at Section 39.2(a)
of the Act, and are directed towards specific
siting issues including need,
safety, compatibility,
etc.
13
As regards the instant matter, the City found that the
applicant, Wood River Partners,
established by the preponderance
of evidence standard that all nine criteria had been met.
Here
petitioners challenge the City’s findings with respect to five of
the nine criteria.
When reviewing a local decision regarding the nine criteria,
the standard the Board must apply is the manifest weight of the
evidence standard.
(McLean
County Disposal,
Inc.
v.
County
of
McLean (4th Dist.
1991), 207 Ill.App.3d 352,
566 N.E.2d 26,
29;
Fairview Area Citizens Taskforce
V.
IPCB,
(3d Diet.
1990), 144
Il1.Dec.
659,
555 N.E.2d 1184; Waste Mana~ementof Illinois,
Inc.
V. Pollution Control Board
(2d Diet.
1987),
160 Ill.App.3d
434,
513 N.E.2d 592.
A decision is against the manifest weight of the
evidence if the opposite result is clearly evident, plain, or
indisputable from a review of the evidence.
(Harris
v.
Day
(4th
Dist. 1983),
115 Ill.App.3d 762,
451 N.E.2d 262,
265.)
Petitioners claim that the City’s findings with respect to
criteria #1,
#2, #3~,#7, and #8
(415
ILCS
39.2(a)
(1),
(2),
(3),
(7), and
(8)
(1994))
were against the manifest weight of the
evidence.
The Board will review the record of the City’s
decision with respect to each of these contested criteria.
Criterion #1
1.
the facility is necessary to accommodate the
waste needs of the area it is intended to
serve;
(415 ILCS 5/39.2(a)(1)
(1994).)
Petitioners claim Wood River Partners failed to present a
prima fade
case for criterion #1 because it made only general
statements to satisfy the need criteria without sufficient
details, did not deal with the entire “service area”, failed to
prove there was an urgent need for the facility,
and failed to
sufficiently demonstrate the need for the entire service area of
Madison,
St.
Clair,
and Monroe Counties,
and the surrounding
areas.
(Pet.
at
7,
Pet.
Br.
at 12-19.)
~ Although petitioners expressly plead criterion
#5
(Pet. at
8,
Pet.
Br.
at 29), petitioners quote from criterion #3
(Pet. at
8,
Pet.
Br.
at 29).
Wood River Partners addressed this argument
as alleging
a failure to satisfy criterion
#3
in their post—
hearing brief.
(WRP at 32-35.)
The City also addressed criterion
#3 in their post-hearing brief.
(City at 38-41.)
Consequently
the Board will construe petitioners appeal as addressing
criterion #3.
.1.4
Among other things petitioners point out there are two
landfills in Madison County,
one with
44
years of capacity and
the other with 11 years of capacity,
as evidence of the lack of
need for an incinerator.
(Pet. Br.
at
15.)
MCCA submitted a
copy of the “Available Disposal Capacity for Solid Waste in
Illinois” 7th Annual Report, prepared by the Illinois
Environmental Protection Agency’s Bureau of Land, as
a summary of
information showing the remaining capacity for area landfills and
demonstrating there
is no need for the Wood River incinerator.
(R.
at C01124-45.)
Petitioners claim that only their witness,
Richard Worthen, was qualified as an expert on the waste needs of
Madison County
(Pet.
Br.
at
20), and that he testified that there
is no need for the facility proposed by Wood River Partners.
(R.
at C01942-8.)
Petitioners also claim that waste generated in
Missouri was erroneously calculated into Wood River Partner’s
need projections because Missouri is not part of the service
area.
(Pet.
Br.
at
19.)
Further, petitioners allege the City
failed to discuss the Illinois’ Solid Waste Planning and
Recycling Law
(P.A.
85-1189).
(Pet.
Br.
at
17.)
According to the applicant,
the proposed service area
consists. of
a primary service area, a tn-county region
consisting of Madison, Monroe,
and St. Clam
Counties, and a
secondary service area comprised of surrounding Illinois counties
within approximately
10.0 miles of the facility.
(R.
at C02095.)
Fuel for the facility received from the tn-county region would
receive priority and if necessary,
additional fuel would come
from the secondary service area.
(R.
at C02095.)
Wood River Partners presented studies to the City, which it
contends satisfied the need criteria.
These include studies
performed by a consulting firm, TSS Consultants,
Inc., regarding
the landfills in the Madison County area
(R.
at C00028)
and the
solid waste data for Madison, Monroe, and St. Claire Counties
(R.
at C00l43-5).
In addition to data regarding wood waste, Wood
River Partners submitted information regarding the other fuel
sources which are currently being stock piled due to costly
disposal rates:
railroad ties and tires.
(R.
at C00015,
C00029.)
Wood River Partners also presented the testimony of their
own expert witness, Mr. Shield of Polsky Energy, who testified to
the facility’s need.
(Tr.
at 187.)
Mr. James Shields testified
that the proposed facility is necessary to accommodate the waste
needs of the area intended to be served, and that it would divert
waste wood from area landfills, generate electricity,
and extend
the remaining life of the area’s landfills.
(R.
at C01888.)
For purpose
of providing an independent
review of
the
application, the City retained the engineering and architecture
firm of Foth
& Van Dyke
(R. at C01888).
Mr. Rod Bloese, Senior
Project Hycirogeologist at Foth & Van Dyke, testified that he was
lb
initially concerned that the information regarding need required
updating to reflect more current information about the landfill
capacity in the area.
(R.
at C01888.)
In response, the
applicant added to the record Applicant’s Exhibits 5 and 6,
“Available Disposal Capacity for Solid Waste in Illinois” and
“Appendix
B:
Solid Waste Disposal Capacity and Generation by
County”, respectively.
An applicant for siting approval need not show absolute
necessity.
(Clutts
V.
Beasley
(5th Dist.
1989), 541 N.E.2d 844,
846; A.R.F. Landfill v.
Pollution Control Board (2d Diet.
1988),
528 N.E.2d 390,
396;
WMI
v. Pollution Control Board
(3d Diet.
1984), 461 N.E.2d 542,
546.)
The Third District has construed
“necessary” as connoting
a “degree of requirement or
essentiality.”
(WMI
v. Pollution Control Board, 461 N.E.2d at
546.)
The Second District has adopted this construction of
“necessary,” with the additional requirement that the applicant
demonstrate both an urgent need for and the reasonable
convenience of, the new facility.
(Waste Management v. Pollution
Control Board,
(2d Diet.
1988), 530 N.E.2d 682,
689; A.R.F.
Landfillv.
Pollution Control Board,
528 N.E.2d at 396;
WMI
V.
Pollution Control Board,
(2d Diet.
1984), 463 NE.2d
969,
976.)
The First District has stated that these differing terms merely
evince the use of different phraseology rather than advancing
substantively different definitions of need.
(Industrial Fuels &
Resources/Illinois,
Inc.
v. Pollution Control Board,
(1st Diet.
1992),
227 Ill.App.3d 533,
592 N.E.2d 148,
156.)
Moreover,
it is
the applicant who defines the service area.
(Worthen v. Village
of Roxana,
(5th Diet.
1993), 253 Ill.App.3d 378,
623 N.E.2d 1058,
1063.)
Under the manifest weight of the evidence standard, the
Board is not allowed to reweigh the evidence before the local
governing body.
Where as here, the evidence is conflicting, the
Board is not free to reverse merely because the lower tribunal
credits one group ot witnesses and does not credit the other.
We find that the City was justified in finding that there
was a demonstrated need for the proposed facility.
The City
could have credited the testimony of its own expert from Foth &
Van Dyke or Mr. James Shields of Poisky Energy, both of whom
found a need for the facility, over the testimony of Richard
Worthen, Chairman of the Madison County Board’s Environment
Committee.
With regards to any landfill capacity remaining in
landfills in the area,
the City need not find there was an
absolute need for the facility.
Petitioners’ contention
notwithstanding, Wood River Partners did provide ample studies
regarding the primary service area to the City which supported a
need for the incinerator.
Similarly,
petitioners argue that the City failed to
correctly weigh the evidence they presented,
and instead relied
16
on reports and witnesses petitioners considered unreliable.
Although petitioners allege this is not a case of the City
assigning credibility to some testimony over others
(Pet. Br.
at
13), we find that petitioners’ challenge to the “competency” of
the evidence is indeed a challenge only to credibility, and not
to the truth of the testimony; the Board will not reweigh
credibility alone.
Respondent’s arguments based on the record contain
sufficient rationale for the City’s finding regarding criterion
#1.
Therefore the Board finds that the decision of the City on
criterion #1 was not against the manifest weight of the evidence.
Criterion #2
2.
the facility is so designed, located and
proposed to be operated that the public
health,
safety and welfare will be protected;
(415 ILCS 5/39.2(c)(2)
(1994).)
Petitioners contend that Wood River Partners failed to meet
its burden with respect to criterion #2 specifically because it
did not establish that the loss of wetlands would not raise flood
levels and it was not demonstrated that there is enough wood to
operate the incinerator safely.
(Pet.
at
7,
Pet.
Br.
at
21.)
Among other things, petitioners contest the definition of
wetlands considered by the City
(i.e., wetlands defined by the
Army Corps of Engineers as opposed to the U.S.
Fish & Wildlife
Service).
(Pet.
Br.
at 21-23.)
Petitioners advance the proposition that the facility cannot
be operated safely because it needs to burn 70
wood to operate
properly and there is no way for Polsky to obtain that much wood.
(R. at C01973-6.)
130th
parties presented data regarding the
availability of wood to the City.
Mr. Shields of Polsky Energy
also testified on behalf of Wood River Partners regarding the
wood fuel mix.
(Tr.
at 149-150.)
The Board does not find sufficient evidence by the
petitioners as to why the facility would not operate safely with
the proposed,
or even less-than-proposed, amount of wood fuel.
The Board does not find the City’s decision on the issue of the
amount of wood fuel as it relates to criterion #2 and the safety
of the facility is against the manifest weight of the evidence.
The Board notes that in MCCA’s post-hearing brief, not in
the original petition for review,
MCCA
claims
that
Wood River
Partners has not performed air studies and therefore has not
sufficiently demonstrated criterion #2.
(NCCA at 2-3.)
MCCA
states that the area is non-attainment for ozone and that the
1~/
additional NOx and VOCs will be harmful to the air quality of the
surrounding area,
as well as endangering safety.
Wood River
Partners’ application and expert testimony detailed the multitude
of permits, including air, solid waste and stormwater permits,
which must be obtained from the Agency before construction and
operation of the facility may begin.
Wood River Partners expert
testimony regarding pollution control devices included the
following:
“state-of-the-art boiler called a fluidized bed
boiler, which has lower emission levels than
a
conventional,
stoker-fired boiler”
(R.
at C0l903), baghouse to control
particulate matter,
an advanced heat distribution system to
control emission of nitrogen oxides, the use of a catalytic
nitrogen oxide reduction system,
a continuous monitoring system,
as well as many other pollution and safety devices.
(R. at
C01903-8.)
Petitioners submitted only general air pollution and
incineration data to the City.
(R. at C01980.)
Reviewing the
evidence presented to the City demonstrating the facility will be
operated to be protective of public health,
safety and welfare,
and the lack of facility specific evidence to the contrary, the
Board finds the City’s decision regarding criterion #2 was not
against the manifest weight of the evidence.
In addition, the
City required 21 conditions be placed on Wood River Partners to
satisfy criterion #2.
Next, Wood River Partners maintains that petitioners’
allegations regarding wetlands and the availability of waste wood
fuel are irrelevant to criterion #2,
and alleged without
supporting evidence.
(WRP Br.
at 23.)
The Board agrees that the issue of flood levels is more
appropriately alleged under criterion
#4.
Criterion
#4 addresses
the location of the facility with reqard to the 100-year flood
plain.
However considering that petitioners do not allege
criterion #4 was not satisfied,
but again raise the issue of
flooding under criterion #5, the Board will address this issue
here.
Criterion #4 reads:
4.
The facility is located outside the boundary of
the 100 year flood plain or the site is flood-
proofed
(415 ILCS 5/39.2(c) (4)
(1994).)
Wood River Partners stated that no portion of the site is
within the 100—year flood plain’0.
(R.
at C00053,
R.
at C02108.)
It explained that because the site was entirely within the
boundaries of EnviroTECH Industrial Park,
which is being
10
The City reviewed information regarding flooding in the
discussion of criterion #4 of the application.
(R.
at C00053.)
lB
developed by the City,
“all issues related to the location
relative to
a 100-year flood plain are being addressed by the
City of Wood River as developer of the industrial park.”
(R.
at
C02108.)
The three acres of wetlands contained on the site are
also being independently addressed by the City.
(R.
at C02105.)
The Board finds the issue of wetland flooding was adequately
addressed on the record so as not to find the City’s finding
regarding flooding under criterion #4 was against the manifest
weight of the evidence.
First, the Board cannot find that the
City used the wrong type of wetlands evidence in reaching its
decision.
The City could have relied upon documents received
from the Federal Emergency Management Agency and the Illinois
Department of Transportation showing the site is not within the
100—year flood plain.
(P.
at C00173-8.)
Furthermore the City
may have given considerable weight to its own Chief of the Wood
River Fire Department, Guy Williams, who testified that the site
did not flood in the great flood of 1993.
(Tr. at 523-525.)
Petitioners have failed to present any evidence to sufficiently
refute Wood River Partners’
data.
Given the weight of evidence presented to the City,
the
Board finds that the City’s findings on criterion #2 are not
against the manifest weight of the evidence.
Again,
it is not
the Board’s role to reweigh the evidence presented before the
City in making their decisions.
Criterion #3
3.
the facility is located so as to minimize
incompatibility with the character of the
surrounding area and to minimize the effect
on the value of the surrounding property
(415 ILCS 5/39.2(c)(5)
(1994).)
Petitioners claim the manifest weight of the evidence shows
that Wood River Partners failed to demonstrate that “the facility
is located so as to
...
minimize the effect on the value of the
surrounding land” because it did not demonstrate that the loss of
wetlands would not raise flood levels.
(Pet.
at
8,
Pet. Br.
at
29.)
The Board has addressed this issue above.
MCCA’s post-hearing brief contention that Wood River
Partners has not demonstrated criterion #3 because it did not
perform air studies (MCCA at 2-3)
is addressed in criterion #2
above.
The facility will be located within
an
industrial park,
bordered by an elevated highway and a brass company, with an
ammonia manufacturer in the near area.
(R.
at C00051,
Tr.
at
112.)
In addition, the City has conditioned siting approval upon
19
Wood River Partners making a reasonable effort to minimize
destruction of trees,
especially hardwoods,
that currently exist
at the site and leaving a tree buffer surrounding the Old Wood
River to the extent practicable.
(R.
at C02l36.)
Wood River
Partners must also comply with the City’s guidelines for site
development of the Envirotech Business Park as enacted by
Ordinance of the City on June 5,
1995.
(R. at C02136.)
The
Board finds ample evidence to support the City’s finding that
Wood River Partners satisfied
criterion
#3 and
does not
find the
City’s finding is against the manifest weight of the evidence.
Criterion #7
7.
if the facility will be treating,
storing or
disposing of hazardous waste,
an emergency
response plan exists for the facility which
includes notification, containment and
evacuation proceduree to be used in case of
an accidental release;
(415 ILCS 5/39.2(c)(7)
(1994).)
Petitioners claim that Wood River Partners failed to meet
criterion #7 because the evidence shows that they will be
treating and storing hazardous waste and did not develop an
emergency response plan.
(Pet.
Br. at
29.)
Specifically,
if the
facility plans to filter out any potential hazardous waste when
discovered,
it must store those hazardous wastes on site until
shipment.
(~~)
Wood River Partners insists it will
“not be treating,
storing or disposing of hazardous waste”.
(R.
at C00260;
WRP
Br.
at 36.)
Within Wood River Partner’s application is the Wood Fuel
Quality Assurance which covers on-site acceptance testing of
urban wood fuel,
fuel sampling/testing, and the project’s right
to refuse delivery, which would permit rejected processed waste
to be “loaded back onto the trailer in which it was delivered”.
(P.
at C00245.)
Additionally, Wood River Partners is on record
that they would require all suppliers to sign affidavits that
none of the material coming to the facility is hazardous material
or hazardous waste.
(Tr.
at 121.)
Although Wood River Partners claimed they will not be
receiving hazardous waste, the City went so far as to guard
against that unlikely event.
The City conditioned approval on
Wood River Partners making all reasonable effort not to accept
any hazardous, extremely hazardous,
or radioactive waste.
(R. at
C02138.)
Although the City
added that “(t)his condition
is not
intended to prohibit WRP from receiving and using hazardous
material which are not waste”,
it did provide that any generator
20
of hazardous waste sent to the facility be determined and
prevented from continuing to send such material.
~
Given the City’s conditional safeguards, together with Wood
River Partners’ sworn statement it would not be accepting
hazardous waste, the 13oard does not rind
the city’s finding that
Wood River Partners satisfied criterion #5 against the manifest
weight of the evidence.
Criterion #8
8.
if the facility is to be located in a county
where the county board has adopted a solid
waste management plan consistent with the
planning requirements of the Local Solid
Waste Disposal Act or the Solid Waste
Planning and Recycling Act, the facility is
consistent with that plan;
(415 ILCS 5/39.2(a)(8)
(1994).)
Lastly, petitioners contend the City erred in findinq Wood
River Partners met criterion #8 because it was not demonstrated
that the incinerator was consistent with the Madison County Waste
Management Plan.
(Pet.
Br.
at 30-36.)
Specifically petitioners
contest the credibility and reliability of Wood River Partner’s
expert relative to their own expert.
(~~)
Petitioners’ presented a statement from the Madison County
Board’s Environmental Committee Chair Richard Worthen which
concluded that the facility is not consistent with the plan.
(R.
at C0l942—8.)
Wood River Partners,
on the other hand, presented
a letter from the Administrator of the Madison County Building,
Zoning and Environmental Department,
Mr. Joseph Parente, which
stated that “it is my conclusion that the development of the
facility, and the use of wood from the Madison County waste
stream, would be in conformity with our Solid Waste Plan”.
(R.
at C00262.)
According to Mr. Parente, the Madison County Solid
Waste Plan identifies waste—to—energy as a future alternative to
accommodate their waste disposal needs.
(j~)
As the Board has observed, where there
is conflicting
evidence, the Board is not free to reverse merely because the
lower tribunal credits one group of witnesses and does not credit
the other.
(See criterion #1 discussion above.)
The City was
presented with the Madison County. Solid Waste Plan to use in
their evaluation of the conflicting testimony of the experts.
Based on the application, hearing testimony and record, the Board
finds the City’s determination regarding criterion #~is not
against the manifest weight of the evidence.
CONCLUSION
The Board has carefully considered each of the arguments
raised by petitioners in reviewing the City’s decision to grant
siting approval to Wood River Partners, and has not found the
siting proceeding before the City was fundamentally unfair, nor
that the City’s findings regarding criteria #1,
#2,
#3,
#7,
or #8
are against the manifest weight of the evidence.
Therefore,
the
Board must affirm the City of Wood River’s siting approval
rendered on May 15,
1995.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
For the reasons specified in the above opinion, the Board
affirms the City of Wood River’s May 15,
1995 decision granting
site location suitability approval for a new pollution control
facility to Wood River Partners, L.L.C.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1994)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also
35 Ill. Adm. Code 101.246.
“Motions for Reconsideration”.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certijy that the above opinion and order was
adopted on the
~1Z
day of _______________________,
1995,
by a vote of
7~c
‘~DorothyM./~unn,Clerk
Illinois
~91L1ution
Control
Board
