BACKGROU?~1)

ILLINOIS POLLUTION CONTROL BOARD

March 7,

1996

THOSE OPPOSED TO AREA

)

LANDFILLS

(~.O.T.A.L.),

)

a Concerned Citizen’s

Group,

)

Petitioner,

)

PCB 96-79

)

(Third-Party Landfill Siting

)

Review)

)

CITY OF SALEM,

)

Respondent.

)

CONCERNED ADJOINING OWNERS,

)

a Concerned Citizen’s

Group,

)

Petitioner,

)

PCB 96-82

)

(Third-Party Landfill Siting

CITY OF SALEM,

)

Review)

)

(Consolidated)

Respondent.

)

BILL MILNER, of WHAM & WHAM APPEARED ON BEHALF OF THE PETITIONERS,

T.O.T.A.L.;

GEORGE LACKEY, of LACKEY & LACKEY APPEARED

ON BEHALF OF THE

PETITIONERS, CONCERNED

ADJOINING OWNERS;

KEITH KOST, of KOST & KOST APPEARED

ON BEHALF OF THE CITY OF

SALEM;

and

MICHAEL JONES, of BRANSON,

JONES

STEDLIN APPEARED

ON BEHALF OF

THE CITY OF

SALEM

OPINION

AND ORDER OF THE BOARD

(by

Yi):

On October

13,

1995, Those

Opposed

Area Landfills (T.O.T.A.L) and on

October

16,

1995,

the Concerned Adjoining Owners filed petitions for review of the City of Salem’s

(City) September

11,

1995

decision approving

siting for an

expansion of the landfill already

owned and operated by the City.

On October

19,

1995,

the Board consolidated these matters

and

a hearing was held on December

12,

1995.1

These petitions were filed pursuant to Section

40.1

of the Environmental Protection Act (Act).

(415 ILCS

5/40.1(1994).)

T.O.T.A.L.

seeking review of the City’s September 11,

1995 grant of siting approval for the new pollution

control facility pursuant to Section

39.2 of the

Act.

(415

ILCS

5/39.2 (1994).)

T.O.T.A.L.

requests the Board to

reverse the City’s decision due to the City’s lack ofjurisdiction,

that the

proceeding before

the City was

fundamentally unfair and that the decision of the City

was

against the manifest weight of the evidence

concerning the challenged criteria of Section

39.2

of the Act.

For the reasons enunciated below,

the Board finds that the City did have

jurisdiction to hear the application,

that the proceeding before

the City was fundamentally fair

and that the decision of the City was

not against the manifest weight of the evidence

concerning the challenged criteria of Section 39.2 of the Act.

The City’s decision is

accordingly affirmed.

STATUTORY

FRAMEWORK

At the local level, the siting process is

governed

by Section

39.2 of the Act.

Section

39.2(a) provides that

local

authorities

are

to consider as many as nine criteria when

reviewing

an application for siting approval.

These

statutory criteria

are

the only issues which can

considered when ruling on an application for siting approval.

Only if the local body finds that

all

criteria are satisfied

can

siting approval be granted.

In this case, the City

found that all of

the applicable criteria had been met,

and granted siting approval.

Concerned Adjoining

Owners failed to file a clarification as to which criteria it was challenging as required by the

Board’s December 7,

1995 order

and

did not file a post-hearing brief.

As a result the Board

will only review those criteria challenged by T.O.T.A.L.2

When reviewing a local decision

on the criteria,

the Board must determine whether the local decision is against the manifest

weight of the evidence.

(McLean County Disposal. Inc.

County of McLean (4th Dist.

1991),

207 Ill.App.3d

352, 566 N.E.2d 26,

29; Waste Management of Illinois. Inc. v.

Pollution Control Board (2d Dist.

1987),

160 Ill.App.3d 434,

513

N.E.2d 592,

E &

Although the Concerned Adjoining Owners participated at the hearing,

they filed no post-

hearing

brief.

Additionally,

their original petition for

review of the City’s siting approval

contained basically

the same arguments

as T.O.T.A.L.

We will only address the Concerned

Adjoining Owners by name in referring to arguments which were not raised and argued by

T.O.T.A.L. in this opinion and order.

T.O.T.A.L.’s post-hearing brief will be

referenced as “Pet.

Brief at”,

T.O.T.A.L.’s reply

brief will be referred to

as “Reply at

“,

the City’s post-hearing brief will be referenced as

“Resp.

Brief at”,

the record before the City will be referenced

as “C.

“,

the transcript befon

the Board will be referenced as “Tr. at

.“,

T.O.T.A.L.’s exhibits will be referenced as “Pet.

Exhibit

“

and

the City’s exhibits will be referenced as “Resp.

Exhibit

“.

Hauling.

Inc. v.

Pollution Control Board (2d Dist.

1983),

116 Ill.App.3d 586,

451 N.E.2d

555,

aff’d in part (1985)

107 Ill.2d 33,

481 N.E.2d

664.)

Additionally, the Board is authorized to review the areas ofjurisdiction

and

fundamental fairness.

Section 40.1 of the Act requires the Board to review the procedures

used at the local level

to determine whether those procedures were fundamentally fair.

& E

Hauling. Inc..

451 N.E.2d

555, 562.)

In this case, petitioners have raised challenges to

the

jurisdiction of the City

to hear the application,

fundamental fairness of the local proceeding,

well as challenges to the City’s decisions on five of the criteria.

Since jurisdiction is a

threshold issue,

we will address that claim first, then proceed

to fundamental fairness, and

finally the challenged siting criteria of Section

39.2(a).

BACKGROU?~1)

The City is both the owner and operator of a landfill located within the City’s

boundaries which currently receives only City waste

and

is known as “The City of Salem

Municipal

Landfill

Number 2.”

(C.

1.)

On April

16,

1992,

the City purchased an option

buy roughly

40 acres of land

which is next to the current landfill site but at that time was

located outside the City’s boundaries.

(Pet. Brief at 2-3.)

On August

1994,

the City

adopted Resolution No.

94-17 which appointed the City

Manager, Mr.

Kinney or his successor,

to be the applicant seeking siting approval before the

City if in the future

it decided to become a regional pollution control facility.

(C.

1-3.)

The City’s Resolution No.

94-17 in paragraphs 2,

3 and

further

stated the following:

That although the City Manager will be having contact with the City

Council on

matters from time to time, if the City

Manager,

as applicant for the City of

Salem, files an application for landfill expansion

with the City of Salem,

at that

time and throughout the whole siting/hearing process,

pursuant to

state statute,

the City Manager shall have no contact with the members of the City Council,

including the Mayor, of the City of Salem which contact would relate to the

application for

regional pollution control facility, except contact that takes place

pursuant

to the public hearing requirements of Senate Bill

172, commonly

referred to as Siting.

This shall not prevent the City Manager from having

contact with the elected officials on his other assigned duties.

That the members of the City Council, including the Mayor, if an application

for landfill expansion is filed by

the City of Salem by it’s (sic)

applicant, the

City Manager,

shall have no contact with the City Manager in regards

to the

application for a regional pollution control facility except contact that would

take place pursuant to the public hearing requirements of Senate Bill

172,

commonly referred to as Siting.

This

shall not prevent the members of the City

Council,

including the Mayor, from having contact with the City Manager on

other assigned duties.

The City

Council understands that their body is charged both with investigatory

and adjudicatory functions.

If an application is filed for landfill expansion, the

City Council

understands that they will

be in an adjudicatory role as a decision

maker (sic)

said

application.

On August

15,

1994,

the City acted on the option

to purchase the above mentioned

property for an estimated cost of $120,000.

(Pet.

Briefat 3.)

The City

received the

deed

the 40 acres on September 16,

1994, and adopted

Ordinance No.

94-25

annexing the property

to the City.

(Pet.

Briefat 4.)

On September 19,

1994 the City adopted Resolution No.

94-20, a resolution providing

for rules and regulations for the approval of site location for a new regional pollution control

facility in the City of Salem, Marion County,

Illinois.

(C.

at 4-13.)

The City Manager

originally filed an application on October 13,

1994, but later withdrew

that application.

The

City

Manager filed a second application with the City seeking

site location approval for a new

pollution control facility on March 23,

1995.

(C.

at 20-636.)

The application was seeking

siting approval

for the expansion of the existing landfill, Landfill No. 2, and for the new

landfill,

Landifil

No. 3,

to be located on the newly purchased property.

(C. at 26

34.)

The

required

hearing

pursuant to Section 39.2(d) of the Act was held in this matter on July 8,

14,

15 and 24,

1995

before the City.

The City granted approval

in Resolution No.

95-14

September 11,

1995.

(C.

at 7759-7762.)

ARGUMENTS AND

ANALYSIS

Jurisdiction

T.O.T.A.L. argues that the City is not the owner of the property

sought

to be sited

because the City failed to follow the statutory requirements

set forth

in 65

ILCS

5/11-76.1-1

(Illinois Municipal Code, Purchase or Lease of

Real

Property or Personal Property,

Powers of

Corporate Authorities) and

ILCS

5/11-76. 1-3

(Illinois Municipal Code,

Purchase or Lease

of Real Property or Personal Property,

Ordinance for lease or purchase of property--

Publication--Effective Date).

(Pet.

Brief at 47.)

specifically, T.O.T.A.L. asserts that

the City failed to fulfill

“the notice requirements of the

statute

which would have given citizens

of Salem the opportunity to put the issue of the purchase of property on the ballot for a binding

referendum.”

(Pet.

Brief at 47-48.)

T.O.T.A.L.

argues that,

since the City

failed

to properly

notice the purchase of the property,

the annexation of the property

was improper causing the

proposed expansion in Landfill No.

to be outside of the City’s boundaries,

with the result

that the City

was

divested of its jurisdiction to

site the landfill expansion.

(Pet. Brief at 47-

48.)

In response the City states that T.O.T.A.L.

has not presented any evidence that it was

unaware of the annexation at

the time of the siting hearing;

in fact T.O.T.A.L. disclosed that

it was aware of the annexation at the first day of the siting hearing given that it filed an

objection to the siting hearing arguing that the City

did not havejurisdiction.

(Resp. Brief at

31, C. at 763.)

The City argues that since T.O.T.A.L. was

aware of the annexation prior to

the siting hearing, it cannot raise the issue for the first time before the Board and such

argument must be deemed waived.

(Resp. Brief at 31.)

Additionally, the City

states that

“even

if the Pollution Control Board would find that the issue has not been waived,

T.O.T.A.L. cannot now contest thejurisdiction of the City of Salem” because there is a one

year statute oflimitation to contest annexations.

(Resp. Brief at 31.)

The City asserts that 65

ILCS

5/7-1-46,

entitled

“Actions Contesting Annexation-Limitation” bars T. O.T.A.L.

from

challenging the annexation which the City states is more than one year old.

(Resp. Brief at

31.)

Furthermore, the City directs the Board’s

attention to

a Fourth Circuit Judicial Court,

Marion

County, action wherein T.O.T.A.L.

sued the City alleging the same statutory

violation, and which has been dismissed with prejudice.

(Resp. Brief at 31-32,

Resp.

Exhibits

2 and 3.)

Although T.O.T.A.L. had not raised

the question ofjurisdiction until this matter was

before the Board,

we have held, as have the courts,

that jurisdiction may be challenged

any

time.

(See C.O.A.L.

(Citizens Opposed to Additional Landfills) v. Laidlaw Waste Systems.

Inc.. and the Perry County Board of Commissioners,

(January 21,

1993), PCB 92-13 1

and

Tate v. Illinois Pollution Control Board,

(4th Dist.

1989)

136 Ill.Dec 401,

188 Ill.App.3d

994, 544 N.E.2d 1176.)

Even though T.O.T.A.L.

may raise this issue with

the Board,

the

Board does not have the authority to decide whether the annexation and purchase of the

property by the City was conducted according

to the applicable

statutes in the Illinois

Municipal Code, as the Board’s authority is limited to those matters arising under the Act.

Since the Fourth Circuit Court dismissed the action with prejudice we will proceed with this

matter as if the City had jurisdiction to hear the siting application and rule on the remaining

issues raised by T.O.T.A.L.

Fundamental Fairness

T.O.T.A.L.

makes two arguments concerning the issue of the proceeding being

fundamentally unfair.

First,

T.O.T.A.L. argues that the City was

biased towards

siting

approval causing the proceeding to be fundamentally

unfair and second,

the hearings were

conducted in a manner which caused the proceeding to be fundamentally unfair.

Section 40.1

ofthe Act requires the Board to review the proceedings before the local siting authority to

assure fundamental fairness.

In E & E Hauling.

Inc.,

the appellate court found that, although

citizens before a local decisionmaker are not entitled to a fair hearing by constitutional

guarantees of due process,

procedures at the local level must comport with due process

standards of fundamental fairness.

The court held that standards of adjudicative due process

must be applied.

(B & E Hauling. Inc.

451 N.E.2d

555,

564.)

(See also Industrial Fuels

and

Resource/illinois Inc. v.

Illinois Pollution Control Board,

(1st Dist.

1992)

227 ill.App.3d 533,

592 N.E.2d 148;

and

Iat~,

544 N.E.2d 1176.)

Due process requirements are determined

balancing the weight of the individual’s

interest against society’s interest in effective and

efficient governmental operation.

(Waste Management of Illinois Inc. v. Illinois Pollution

Control Board,

(2d Dist.

1988) 25 Ill.Dec. 524, 530 N.E.2d 682, 693.)

The manner in which

the hearing is conducted, the opportunity to be heard,

the existence of

ex pane

contacts,

prejudgment of adjudicative facts, and the introduction of evidence are important, but not

rigid, elements in assessing fundamental fairness.

(Hediger v.

& L Landfill.

Inc.

(December 20,

1990), PCB 90-163,

117 PCB

117.)

Alleged Bias. Prejudice.

Conflict of Interest.

T.O.T.A.L.

asserts that the actions of the City leading to the September 11,

1995

resolution granting siting approval created bias and a conflict of interest whereby the

proceeding was

fundamentally unfair.

(Pet.

Brief at

1-5.)

T.O.T.A.L. states that the “Illinois

Courts have recognized that persons objecting

to the granting of a site application can insist

that the procedures utilized by the governing

body comport with due process standards of

fundamental fairness.”

(Pet.

Brief at

6.)

T.O.T.A.L. argues that the City was

biased

“due to

the fact the majority of the council had already voted to take whatever action (sic)

was

necessary to develop a regional pollution control facility.”

(Pet.

Brief at 6.)

As evidence of

this alleged bias,

conflict of interest or prejudice, T.O.T.A.L. sets forth the minutes of the

August 1,

1994

meeting in which the City adopted Resolution No.

94-17 where the mayor and

two other council members made statements in

support of the new facility.

(Pet.

Brief at 7.)

As additional evidence

to this alleged bias or prejudice on the part of the City,

T.O.T.A.L argues that the City expended approximately

$500,000 prior to

its decision (Pet.

Brief at 9,

5);

the City performed work in the expansion area prior to the grant ofapproval

(Pet.

Brief at 24); and that each member did not review all submitted

information prior to the

issuance of the siting decision.

(Pet.

Brief at

23,

22-24).

T.O.T.A.L argues that the City

cannot “side step”

this bias by arguing that the City Manager, Mr.

Kinney, is the applicant,

while the City

is the governing body hearing the application.

(Pet.

Briefat 8.)

In conclusion,

T.O.T.A.L argues that the City

should not hear its own application and cites to

the appellate

court decision in

B & E Hauling.

Inc..

for the proposition

that “fundamental

fairness is not

only violated where the adjudicator’s pecuniary interest in a case is personal” but also when it

is an indirect outgrowth ofpublic official’s desire

to protect official funds.

(Pet.

Brief at 8-

10.)

In response, the City states that T.O.T.A.L.’s argument has been found to have no

merit by the Illinois Supreme Court.

Citing to

the Supreme Court’s decision

in E & E

Hauling.

Inc. the City argues that the City council members are presumed to be unbiased and

that the burden is on T.O.T.A.L.

to demonstrate that a bias existed.

(Resp.

Brief at 7.)

The

City asserts that T.O.T.A.L. has

not demonstrated that bias existed.

In support, the City

states that T.O.T.A.L. failed to

ask any questions as to bias at the hearing before the Board

and that the city council

members were aware of the dual role as evidenced in

their adoption of

Resolution 94-17.

Furthermore, the City

states that City

Council Member Black who voted

for Resolution No.

94-17, ultimately voted against siting approval

and City Council

Member

Storment who voted against Resolution No.

94-17, voted to grant the siting approval.

(Resp.

Brief at 7.)

As to

the issue of annexation,

the City specifically argues that the question of the

annexation of property and fundamental fairness has been addressed on

several occasions.

The

City argues that the court in Woodsmoke Resorts.

Inc. v.

City of Marseilles,

(3d

Dist.

1988)

174 Ill.App.3d 906, 529 N.E.2d 274, specifically addressed whether an annexation

by the City

of Marseilles created inherent bias.

(Resp. Brief at 7.)

The City contends that the Third

District,

citing

to B & E Hauling.

Inc..

held that there was no inherent bias.

(Resp. Brief at

8.)

The City also states that the Board has addressed

this issue in Fairview Area Citizens

Taskforce v. The Village of Fairview and Gallatin National Co.. (F.A.C.T.) (June 22,

1989),

PCB 89-33,

198 Ill.App.3d 541,

555

N.E.2d

1178

(3d Dist.

1990).

(Resp.

Brief at 8.)

Additionally, the City argues that the City Managertestified at the hearing before the Board,

that he could not recall whether the City

council members directed him

to prepare a petition

for annexation, or that it was prepared due to the policy of the City that all property purchased

by the City should become part of the corporate limits to the greatest extent possible.

(Resp.

Brief at

8-9, Tr.

at 70,

85.)

The City argues that T.O.T.A.L. has not discredited the

testimony of the City

Manager as to why

he filed the petition for annexation.

(Resp. Brief at

8-9.)

Finally,

the City contends that T.O.T.A.L.

has not presented any evidence that the City

council members were prejudiced by the expenditures connected to the expansion.

(Resp.

Brief at

10.)

The City states that during the siting process it was also going through the

Significant Modification Permit process for part of the landfill which was

already

sited, and

that most of the costs detailed in Petitioner’s Exhibit No. 9 are associated with the Significant

Modification Permit process and not the siting process.

(Resp. Brief at

10-11.)

The City

maintains that the total costs for the expansion at that point was $203,742.49.

(Resp. Briefat

10-11.)

Overall, the City concludes that T.O.T.A.L.

has not demonstrated that the City

council members were biased or prejudiced so as to make the proceeding fundamentally unfair.

In its reply brief T.O.T.A.L.

states that E & E Hauling. Inc..

Woodsmoke Resorts,

and F.A.C.T. are not similar

to this case and are not situations where the applicant and the

local

siting authority are the same governmental entity.

(Reply at

1-2.)

T.O.T.A.L.

argues

that in this case the situation is significantly different and that “no

hearing could ever be

fundamentally fair where the governing body

and the applicant are one in

the same.”

(Reply at

3.)

We disagree with T.O.T.A.L.‘s

argument that the situation in E & B Hauling.

Inc. is

significantly different than

here.

In B & B Hauling.

Inc.

the members of the forest preserve

district ofDu Page County

(the applicant) were the same members of the county board for Du

Page County (the local siting authority).

& B Hauling.

Inc.

481

N.E.2d 664,

665.)

The

Board finds no evidence to

support a finding that the City council members were biased or that

they prejudged the siting application so as to

make the process fundamentally unfair.

Since the

development of the siting process pursuant to Section 39.2 of the Act,

the courts and this

Board have been confronted with the issue

of the local decisionmaker allegedly having a

disqualifying bias or prejudging the application.

One of the leading cases on this issue is the

Supreme Court’s decision in B & E Hauling.

Inc.

In that case the Supreme

Court dealt with

several issues of bias, i.e. the local decision

maker also being the applicant, the pecuniary

interest of decision maker, and ordinances demonstrating approval of the landfill prior to its

siting decision,

all of which are relevant in this case.

As in

this case, the Supreme Court was confronted

in B & B Hauling Inc..

with the

situation where the applicant and the siting authority were the same and found that “wie

not consider that the legislature intended this unremarkable factual situation to

make

‘fundamental

fairness of the procedures’ impossible.”

B Hauling. Inc..

481 N.B.2d 664,

668.)

The Court reasoned:

It does not seem unusual that a landfill would be proposed for location on

publicly owned property.

The Act was amended to place decisions regarding

the sites for landfills with local authorities and to avoid having a regional

authority (the Agency) in a position to impose its approval of a landfill site on

an objecting local authority.

The Board recently held in

City of Geneva v.

Waste Management of Illinois.

Inc.

and

County Board.

County ofKane,

(July 21,

1994),

PCB

94-58,

where the City of Geneva was

challenging the siting approval of the County of Kane,

who is the owner and one of the local

siting authorities that “..the inclusion of the ‘operating contract’

condition

(between Kane

County and Waste Management of Illinois

Inc.) or any requisite ‘renegotiation’

does not so

taint the siting process as to render it fundamentally unfair.”

(I?L at

15.)

Although T.O.T.A.L. quotes language from the appellate court decision in

B & B

Hauling.

Inc. concerning monetary

interest on the part of the local siting authority,

we find the

Supreme Court’s findings controlling on this issue.

The Supreme

Court stated the following:

More fundamentally, the board should not be disqualified as a decisionmaker

simply because revenues were to be received by the county.

County boards and

other governmental agencies routinely make decisions that affect their revenues.

They are public service bodies that must be

deemed to have made decisions for

the welfare of their governmental units and their constituents.

Their members

are subject to public disapproval;

elected members can be turned out of office

and appointed members replaced.

Public officials should be considered

to act

without bias.

The village next claims that the hearing was

unfair because both the county and

the district had earlier approved the landfill by

ordinance.

The village thus is

claiming a type ofbias that has been called

“prejudgment of adjudicative facts.”

(See K.

Davis,

3 Administrative Law Treatise sec.

19.4

(2d ed..

1980).)

But

the ordinances were simply a preliminary to the submission of the question of a

permit to the Agency.

Subsequently,

the Act was amended and the board was

charged

with the responsibility of deciding whether to approve the landfill’s

expansion.

The board was required to find that the six

standards for approval

under the amended act were satisfied.

It cannot be said that the board prejudged

the adjudicative facts,

i.e.,

the six criteria.

This conclusion is supported by the

line of decisions that there is no inherent bias created when an administrative

body is charged with both investigatory and adjudicatory functions.

(B & B

Hauling.

Inc. 481 N.E.2d 664, 667-668.)

The City’s actions in this case of purchasing,

annexing and adopting certain ordinances

concerning these purposes do not create a disqualifying bias.

Based on B & B Hauling Inc.,

local decision maker can be an applicant and still be presumed to be unbiased.

The court in

Woodsmoke Resort Inc.,

utilizing B & B Hauling Inc.. where the local siting authority

annexed the property and relinquished

various other rights,

found that there was no inherent

bias.

(Woodsmoke Resort Inc.,

529 N.B.2d 274, 276.)

We agree with

the judicial

decisions

on this issue that there is no inherent bias created in these situations.

Additionally, the legislature amended the Act in

Section 39.2(d) to include the

following language:

The fact that a member of the county board or governing body of the

municipality has

publicly expressed an opinion on an

issue related to a site

review proceeding shall not preclude the member from

taking part in the

proceeding and voting on

the issue.

During the legislative debate the House Sponsor of House Bill 4040

stated:

The intention of the Bill, and this was brought up in committee, is to allow

county board members and city council members to run for office and indicate

their position on either the issue (sic)

siting generally or (sic)

specific

site, and

then

be able to vote on it.

It’s kind of a Catch-22 now.

You got to have

democracy work.

the same time, if you make democracy work, then you’re

disqualified from voting, or arguably so, under the opinion of at least one local

state’s attorney.

So, that’s the intention of the Bill.

(House Floor

debates May

1992, P.A.

87-1152, effective

date January

1993.)

The Board finds nothing in

this record that demonstrates bias on

the part ofthe City

council

members.

Pursuant to B &

B Hauling.

Inc. and successor cases, the City council

members are presumed to act in an unbiased

manner and none of the actions or circumstances

argued by T.O.T.A.L. demonstrate

the contrary.

To conclude otherwise would prohibit local

governments from owning and operating their own landfills which clearly was not the intent of

the siting legislation.

Furthermore,

in light of the above amendment

to Section 39.2(d) of the

Act the local

siting authority members

may state an opinion on a siting issue without being

precluded from taking part in the local siting decision.

In order

for the Board to find a bias,

there must be some other action that demonstrates a bias or that the City council members

prejudged the matter.

The record demonstrates that the City council

members were aware of

their two separate and distinct roles as evidenced in the language ofResolution No. 94-17, and

that such distinction was maintained.

T.O.T.A.L. has not presented any evidence

that any of

the City council

members were biased or that the matter was prejudged.

In fact,

the City

states that City Council Member Black, who voted for Resolution No.

94-17, voted against

siting approval.

Also City Council Member Storment, who voted against Resolution No.

94-

17,

voted to grant the siting approval.

For

the reasons stated above,

we find that there has

been no demonstration of bias which would have caused the proceeding to be fundamentally

unfair.

Alleged

fundamental unfairness concerning the hearing before the City.

T.O.T.A.L asserts that the following arguments, set forth below, caused the siting

proceeding to

be fundamentally unfair:

Allegation that the attorney representing the City Manager.

as applicant.

improperly performed work for the City. as siting authority.

T.O.T.A.L. alleges that the attorney representing the City Manager,

Mr.

Kost of Kost

& Kost, was

also representing the City throughout the siting process,

causing the process to be

fundamentally

unfair.

(Pet.

Brief at

12.)

T.O.T.A.L.

asserts that a review of the attorney’s

billings,

which were admitted at hearing before the Board as Petitioner’s Bxhibit #14,

demonstrates that the attorney had phone conversations and conferences with

City officials.

(Pet.

Brief at

12.)

Additionally, T.O.T.A.L.

states that the same attorney

“appears to

have

drafted the Rules and Regulations of the hearing” (Pet.

Exhibit

8, C. 1488-1497) or,

citing to

Petitioner’s Exhibit #9,

(C.

1498-1500),

states alternatively that “at a minimum, had much

discussion with the City’s attorney”,

“and also appears to

have participated in the preparation of

the Resolution purporting

separate adjudicatory and applicant functions in

the siting

process.”

(Pet.

Brief at 12-13.)

Furthermore, T.O.T.A.L.

states that the City paid for all of

Mr.

Kost’s fees and that his

services were on the behalf of the City.

(Pet.

Brief at

13.)

The

City asserts that T.O.T.A.L. has put forth

“no evidence whatsoever that any

members ofthe city council or the mayor ever

met with anyone associated with

Kost &

Kost

except in the formal proceedings of the siting application.”

(Resp. Brief at

12.)

As to whether

Mr.

Kost prepared any resolutions

for the City, the City

states that the City

Manager testified

that he presumed that Resolution No.

94-17 was

prepared by the City attorney and that

Resolution No.

94-20 was prepared by the City

attorney.

(Resp.

Brief at

12, Tr. at

58-61.)

Furthermore the City argues,

citing Southwest Energy Corporation v. Illinois Pollution

Control Board,

(4th Dist.

1995) 275 ill.App.3d 84,

655 N.B.2d

304, that even assuming the

resolutions were prepared by Mr.

Kost there was no effect on the fundamental fairness of the

proceedings since the adoption of the resolutions occurred prior

to T.O.T.A.L. ‘s entry ofits

appearance in the proceeding.

(Resp. Brief at

12.)

Finally,

the City contends that Resolution

No.

94-17

established a separation

between the City

and the City Manager and the only

evidence before the Board demonstrates this separation was

maintained throughout the

proceedings.

(Resp. Brief at

12-13.)

The City, in support of this contention,

cites to the City

Manager’s testimony at

the Board’s hearing.

(Resp. Brief at

13, Tr.

at 90-122.)

The Board finds, after careful review of the record,

that T.O.T.A.L. has not

demonstrated

that the attorney representing

the applicant had

pane

contacts with the City

council members in a manner causing the proceeding to be fundamentally unfair.

The City

Manager testified that once the original application was filed, the separation between the City

council members and the City Manager,

as applicant,

started and was

maintained throughout

the proceedings.

T.O.T.A.L. argues that Petitioner’s Bxhibit No.

14,

the billing statements

for Kost & Kost for the period between

August

1994 and August

1995,

demonstrates that Mr.

Kost had

éxpane

contacts causing the proceeding before the City to be fundamentally unfair.

We find nothing in

the exhibit that demonstrates that Mr.

Kost had any contact with the City

council

members.

Additionally, assuming there were contacts, T.O.T.A.L.

has never argued

how the

alleged contacts has caused the proceeding to be fundamentally unfair.

The court in Waste

Management.

Inc.

stated the following:

A court will not reverse an agency’s decision because of

ex pane

contracts with

members of that agency absent a showing

that prejudice to the complaining

party resulted from these contracts.

‘~‘K

Moreover,

existence of strong public

opposition does not render a hearing fundamentally unfair where,

as here, the

hearing committee provides a full and complete opportunity for the applicant to

offer evidence and supports its application.

Thus,

although personal

pane

communications to county board members in

their adjudicative role are

improper, there must be a showing that the complaining party suffered prejudice

from

these contacts.

(Waste Management Inc.,

125 Ill.Dec 524,

539.)

Furthermore,

the court in Southwest Energy Corporation found that it was not fundamentally

unfair for the applicant and members of a siting authority to attend a luncheon together where

the general public

was not allowed

“as no opponents of the facility had made appearance at

time of luncheon and,

thus,

it would have been impossible to include opponents in luncheon.”

(Southwest Energy Corporation 655 N.E.2d 304, 312.)

Here, T.O.T.A.L. did not make its

appearance until July of 1995

subsequent

to the occurrence of the alleged contacts.

For

the above stated reasons,

we find that the alleged contacts have not been

demonstrated by T.O.T.A.L.,

and we further find that T.O.T.A.L. has not demonstrated how

such alleged contacts would have caused

the proceeding to be

fundamentally unfair.

Allegation that the City did not follow its rules regarding the conduct of the hearing.

T.O.T.A.L. states that the City

did not allow for cross-examination of all witnesses

presented by the applicant, in violation of the City’s rules and regulations for the conduct of

the hearing as established pursuant to City Resolution No.

94-20.

(Pet. Brief at

13.)

Citing

Daly

Illinois Pollution Control Board,

(1st Dist.

1994) 264 Ill.App.3d 968, 637 N.E.2d

1153,

202 Ill.Dec. 417, T.O.T.A.L. argues that “Illinois Courts have long recognized

‘...that

a fair hearing before an administrative agency must

include the opportunity

to be heard, right

to cross-examine adverse witnesses,

and impartial rulings

on evidence’.”

(Pet.

Brief at 13.)

specifically, T.O.T.A.L.

states that it was not allowed to cross-examine the City’s

expert, Mr.

Rapps, who analyzed the evidence and issued an opinion (which is contained in

the record at C. 5970-6160) as to whether the criteria had been met.

(Pet.

Brief at

14.)

The City asserts that T.O.T.A.L. was allowed

to cross-examine every witness tendered

at the siting hearing by the City Manager as applicant.

(Resp.

Brief at

14.)

The City argues,

as to the specific allegation

that T.O.T.A.L.

was not allowed to cross-examine the City’s

engineer,

Mr.

Rapps, that T.O.T.A.L. had no right to cross-examine Mr.

Rapps.

(Resp. Brief

14.)

Furthermore,

the City asserts that pursuant to F.A.C.T.. it had a right to retain its

own expert and for that expert to file written comments.

(Resp.

Brief at 14.)

Finally,

the City

states that Resolution No.

94-17

provided no restrictions on

the scope ofcomments and

provide an opportunity to respond to filed public comments

which T.O.T.A.L. did not

exercise.

(Resp. Brief at

15.)

The Board finds, based

on the record,

the proceeding was not fundamentally unfair as a

result of T.O.T.A.L. not being allowed to cross-examine the applicant’s witnesses and the

City’s expert.

Although T.O.T.A.L.

alleges that it was denied cross-examination on “all

witnesses presented by the applicant” it does not present evidence as to which witnesses it was

denied a right to cross-examine.

After careful

review ofthe transcript

from

the siting hearing

(C.

6 198-7758),

we find that

all witnesses presented by the applicant were

tendered for cross-

examination.

Additionally, we find that T.O.T.A.L. had no right

to cross-examine Mr.

Rapps.

this case Mr.

Rapps was

not a witness

for the applicant and did not even testify at the siting

hearing.

In F.A.C.T., the court upheld the Board’s finding that the local siting authority may

retain an expert, that the expert may

file a report as a public comment containing information

that was not testified to at hearing, if the report is properly submitted as a public comment and

petitioners had the opportunity to respond.

(F.A.C.T.

555

N.B.2d

1178,

1182.)

Mr.

Rapps

filed his

report on the last day in which public comments could be filed and T.O.T.A.L.

had

seven

(7) days to file a response but failed to do so.

Accordingly,

we find that T.O.T.A.L.

has not demonstrated that the above actions created a right to cross-examine Mr.

Rapps or that

the proceeding was fundamentally

unfair.

Allegation that the opinions ofindividuals who did not appear and did not testify

were admitted into the evidence with no foundation

being established for

those opinions

and those individuals were not available for cross-examination.

T.O.T.A.L.

states “throughout

the proceeding,

reports which set forth the opinions of

witnesses were admitted into evidence via the Application for Site

Location Approval,

Addendum No.

to Significant Modification Permit and Application for Significant

Modification Permit.”

(Pet.

Brief at

15.)

T.O.T.A.L.

argues that the admission of the above

mentioned documents over its objection, due to the lack of foundation and unavailability of the

individuals who prepared the documents, causes the proceeding to be fundamentally unfair.

(Pet.

Brief at

15.)

The City

states that T.O.T.A.L.

has not presented any

“evidence to show how it was

prejudiced in any way,

shape or form by admission ofcertain reports in

the siting record.”

(Resp. Brief at

15.)

The City argues that “the

burden was upon T.O.T.A.L. to

bring forth

evidence at the Pollution Control Board hearing from witnesses to show that T.O.T.A.L. was

prejudiced by the admissions of these reports” and failed to do

so.

(Resp. Brief at

15-16.)

The Board finds that the admission of certain documents which may have contained

opinions without foundation and about which T.O.T.A.L. was

unable to cross-examine the

authors of those opinions,

does not cause the proceeding to be fundamentally unfair.

Section

39.2(c) of the Act requires the applicant to file a copy of its request with

the local siting

authority which includes the applicant’s proposal

and “all documents, if any,

submitted as of

that date

to the Agency pertaining to

the proposed facility.”

(415 ILCS

5/39.2(c)

(1994).)

Furthermore,

T.O.T.A.L. has not demonstrated how the submission of these documents

caused bias or prohibited them from presenting evidence and/or arguments against the

information.

Additionally, T.O.T.A.L.

states in its post-hearing brief with respect to

the Addendum

that “assuming

this evidence was properly admitted, each council

member and the mayor

testified that they did not read all the information in connection with the application,

and

specifically, petitioner recalls that at

the post-hearing Board’s

hearing

held on December

12,

1995,

that no council member nor the mayor

read the addendum.”

(Pet.

Briefat 23.)

There is

no evidence in the record that shows that the information

or the opinions contained

in the

documents caused the proceeding to be fundamentally unfair.

T.O.T.A.L. itself argues that

the information was not even utilized by the City council

members in their decision

to grant

siting approval.

For all of the reasons stated above,

we find that the submission of the

documents did not cause the proceeding to be fundamentally unfair.

Allegation that petitioners were not allowed to

call the City Manager as a witness

although he was

present at

the hearing.

T.O.T.A.L. states that it attempted to call the City Manager as an adverse witness at

the hearing but was denied the ability to

so by the hearing officer pursuant to an objection

by the attorney representing the City Manager.

(Pet.

Brief at

15.)

T.O.T.A.L. argues that the

hearing officer’s ruling was

“inappropriate and adversely affected petitioners in

their ability

present evidence to the council which would have supported

their position that the site

application should not be granted.”

(Pet.

Brief at

16.)

T.O.T.A.L.

asserts that “fjundamental

fairness required

that petitioner be allowed

to call Mr.

Kinney

the

City Manager

testify in

the proceeding”

especially “where the city has instructed Mr.

Kinney to file the application

even though

he advised the council as its manager that

he could not recommend proceeding to

develop a regional facility.”

(Pet.

Brief at

16.)

As a result of Mr.

Kinney’s stated

position in

the minutes of the August 1,

1994

meeting in which the City adopted Resolution

No.

94-17,

T.O.T.A.L. argues that there is no true separation between the City as judge and the City

applicant and the petitioners should have been allowed

to explore this before the City at the

hearing.

(Pet. Brief at

16.)

T.O.T.A.L.

further argues that, due to Mr.

Kinney’s position

concerning the expansion, his testimony was extremely relevant in demonstrating the conflict

of interest or bias of the City.

(Pet.

Brief at

17.)

Finally, T.O.T.A.L. argues that Mr.

Kinney possessed

information concerning economics which also was

relevant to the

“needs”

and

“public health,

safety and welfare” criteria.

(Pet.

Brief at

18.)

For these reasons

T.O.T.A.L. alleges

that denial of the opportunity

to cross-examine Mr.

Kinney caused the

proceedings to be fundamentally

unfair.

The City argues that T.O.T.A.L. has

failed to present any evidence of how

the

proceeding was

fundamentally unfair due to its

inability to call the City Manager, Mr.

Kinney.

(Resp. Brief at

15.)

Citing Concerned

Citizens of Williamson

County v. Bill

Kibler

Development

Corporation,

(January

19,

1995),

PCB 94-262,

the City contends

that the Board

found

the proceeding was fundamentally

fair even though petitioners were not allowed to call

the applicant to testify, and further

found that the petitioner had not presented evidence

how

it was prejudiced.

(Resp. Brief at

15.)

The Board finds that the hearing officer’s ruling denying T.O.T.A.L.’s

request to call

the City Manager as an adverse witness, although he was present at the hearing and a City

employee,

did not cause the proceeding to fundamentally

unfair.

In Waste Management Inc.~

where the hearing officer allowed an

objector to testify

an issue and did not allow Waste

Management to present evidence in contradiction stated

that “Waste Management fails to

articulate how this one error resulted in

a prejudicial determination

by the County

Board” and

found the proceeding to be fundamentally fair.

(Waste Management Inc. 530 N.E.2d 682,

694.)

In this case T.O.T.A.L. was not prejudiced because it

had the ability to present their

own evidence concerning the position of Mr.

Kinney as related to

the alleged bias,

had the

ability to present its

own evidence concerning the criteria,

and was allowed to cross-examine

the witnesses for the applicant on those issues.

Additionally, as in

Waste Management. Inc.,

T.O.T.A.L. has failed to show how Mr. Kinney’s failure to testify at public hearing on July

has prejudiced T.O.T.A.L.

such that the proceeding was fundamentally

unfair.

For the above

stated reasons we

find that T.O.T.A.L. has

failed to demonstrate how the proceeding was

fundamentally unfair.

Allegation that the petitioner was severely

limited on presenting evidence on

economics and profitability of the proposed expansion.

T.O.T.A.L. argues that they had a right to

“examine” economics with the City Manager

within the “needs”

and the “public

health,

safety

and welfare” criteria.

(Pet.

Brief at 18.)

T.O.T.A.L.

states that it was not allowed to pursue this information at the hearing with

the

City Manager.

(Pet.

Brief at

18.)

If allowed to

explore this area with

the City Manager,

T.O.T.A.L.

states it would have questioned

the City Manager about resources to

maintain

the

landfill

so the facility could then

be analyzed on a profit standpoint.

(Pet.

Brief at 18.)

T.O.T.A.L.

argues that “this

type of inquiry is necessary where public funds are involved

and to guarantee fundamental fairness where the city is both the applicant and judge.”

Additionally T.O.T.A.L.

asserts that the “information was also relevant and necessary

to the

needs and health,

safety

and welfare criteria,

and Mr.

Kinney

(City Manager), or council

members themselves were the only persons possessed

(sic)

with

such information.”

(Pet. Brief

18.)

Furthermore, T.O.T.A.L. states that it was prejudiced by the fact that the City heard

information pertaining to the profitability of the expanded landfill

August

15,

1994

immediately prior to its vote to proceed

with the expansion.

(Pet.

Brief at

19.)

T.O.T.A.L.

maintains that prior to the City’s vote to proceed

with

the landfill expansion, Mr.

Herman of

STS

Consultants

(also the witness for the City Manager/applicant) presented evidence on

the

profitability and the potential

need to increase personnel and equipment at the landfill due to

the expansion.

(Pet.

Brief at 19.)

T.O.T.A.L. argues that

“such contact with applicant’s

expert was

an (sic)

improper and denied fundamental fairness.”

(Pet.

Briefat

19.)

Citing

Southwest

Energy Corporation, T.O.T.A.L.

states that this case

“indicates the relevancy of this

type of testimony.”

(Pet.

Briefat

19-20.)

T.O.T.A.L. concludes that it should have been

allowed to

“present rebuttal evidence via Mr.

Kinney who was the only person with

such

knowledge.”

(Pet.

Brief at 20.)

The City asserts that T.O.T.A.L.

has not cited

to any law which would allow it to

present or examine Mr.

Kinney as to

this type of evidence and has not demonstrated

that it was

biased or prejudiced by not being able to present this evidence.

(Resp. Brief at

16.)

The City

argues,

pursuant to Concerned Citizens of Williamson County. that T.O.T.A.L.

had a duty to

present a witness at the Pollution Control Board hearing to show how it was prejudiced by not

being allowed to present the evidence

on economics.

(Resp.

Brief at 16.)

Additionally, the

City

states that T.O.T.A.L. has not presented an

“offer of proof” explaining the type of

potential questions

for Mr.

Kinney, the City Manager, and “when given the opportunity to ask

those questions at the Pollution Control Board hearing.. .T.O.T.A.L. was

silent.”

(Resp.

Brief

at 16.)

Finally the City argues that T.O.T.A.L.

has misplaced

its reliance upon Southwest

Energy Corp.

and that F.A.C.T.

sets forth the appropriate standard, which according to the

City is “...factors could be considered outside of the criteria if the criteria had been

satisfied”

and the converse is not true.

(Resp. Brief at

16.)

The City argues that “if

the criteria has

been complied with, the city

council

must approve the siting and cannot deny the siting

because of matters outside of the criteria.”

(Resp. Brief at

17.)

The Board finds that the proceedings were

not fundamentally unfair due to limitation on

presenting evidence on economics and profitability of the proposed expansion and the contact

between the applicant’s expert and the City prior to the application being filed.

Since we

previously addressed the issue ofwhether T.O.T.A.L.

should have been allowed

to call Mr.

Kinney above,

we will not do so again.

For the reasons stated above we feel that the

proceeding was

not fundamentally

unfair concerning this issue.

The contact between the

applicant’s

expert and the City concerning the economics occurred prior to the filing of the

application and such expert was available for cross-examination on

those issues at the siting

hearing.

The City

council

members are presumed

to be unbiased and absent a showing ofbias

the contacts that occurred prior to the filing of the application do not cause the proceeding to

be fundamentally unfair.

Finally,

in F.A.C.T.

the court stated the following:

Therefore,

the previously approved annexation

agreement and possible

economic benefit to Fairview do not render the village board biased.

Furthermore, for site-location-suitability approval, the facility must meet the

criteria set out in section 39.2(a) ofthe Environmental Protection Act (Act)

(Ill.Rev. Stat. 1987,

l’/2,

par.

1039.2(a)).

However, while these listed

criteria must be satisfied,

the statute does not state these are the only

factors

which may be considered.

Nor do petitioners cite any cases which bar

consideration of economic benefit to the community.

Therefore, there is no

impropriety by the village board considering the economic benefit, as long

the statutory criteria are also met.

(F.A.C.T.

555

N.B.2d

1178,

1182.)

While the Board understands T.O.T.A.L. ‘s

arguments that economics are connected to

the ability of the landfill expansion to

be operated in a manner to

meet the criteria concerning

public health,

safety and welfare in

Section

39.2 (a) of the Act,

the exact language of the

criterion

states “...the facility is so designed,

located and proposed to be operated...”

and does

not require that the local

siting authority determine the solvency of the applicant.

(415 ILCS

5/39.2(a)

(1994).)

The issue of financial assurance ofthe applicant is addressed at the

permitting stage before the Illinois Environmental Protection Agency.

Furthermore

T.O.T.A.L.

could have presented its own

witnesses and cross examined the applicant’s

witnesses on those issues.

We find that T.O.T.A.L. was not so limited in presenting evidence

concerning economics such that the proceeding was fundamentally

unfair.

Allegation that petitioner was prejudiced by

undisclosed expert.

T.O.T.A.L.

alleges that it was

denied fundamental fairness when the applicant, the

City Manager,

called an

“undisclosed expert witness” at the hearing before the City to

testify

on the site compatibility criteria.

(Pet.

Brief at 20.)

The expert witness,

Mr.

Briggs,

was not

mentioned in

the application and the application contained information supplied by a different

expert, Mr.

Somer.

(Pet.

Brief at 20.)

T.O.T.A.L. argues that such use of this expert witness

created prejudice and surprise and denied the petitioner a fundamentally

fair proceeding.

(Pet.

Brief at 22.)

T.O.T.A.L.

argues that it was prepared to rebut the evidence of the application

which it believed to be

insufficient and was not prepared to rebut the evidence presented by

the

undisclosed expert witness.

(Pet. Brief at 22.)

The City

states that the adopted Resolution 94-20 which establishes the rules and

regulations for

the siting hearing did not provide for the disclosure ofwitnesses.

(Resp. Brief

at 17.)

Furthermore,

the City asserts that there is no

statutory requirement or case law that

requires the disclosure of witnesses, and that T.O.T.A.L. itself was not required to disclose its

witnesses.

(Resp. Brief at

17.)

The City

argues that T.O.T.A.L.

has not stated

how the

undisclosed expert witness

caused the proceedings to be fundamentally unfair.

The City

further notes that T.O.T.A.L. chose not to pursue the testimony of Mr.

Somer after placing

him on

subpoena for

the hearing before the Board.

(Resp.

Brief at 17.)

The Board finds that the “undisclosed expert witness”

did not create prejudice which

caused the proceeding to be fundamentally

unfair.

T.O.T.A.L. argues that it was

surprised by

the use of the expert and was prepared to cross-examine the expert named

in the application.

Hearing was held

on the following days; July

8, July

14, July

15 and July 24, a period of

roughly two weeks.

The applicant called

Mr.

Briggs, the undisclosed expert, as the first

witness on the first day of hearing.

There were three additional

days ofhearing,

spread over a

two week period,

in which T.O.T.A.L. could have presented evidence to

rebut his testimony

and Mr.

Briggs was

made available for cross-examination.

Furthermore, the rules and

regulations adopted by the City

did not require disclosure of witnesses,

and apparently neither

T.O.T.A.L.

nor the applicant disclosed their witnesses.

T.O.T.A.L.

finally argued that the

applicant should not be able to provide additional evidence in

support of the application at the

hearing before the local

siting authority.

We disagree.

The purpose of the hearing is to create

a record

to form the basis ofappeal of the decision of the local

siting authority.

The applicant

must be allowed to put forth testimony in support ofthe application at the hearing before the

local siting authority.

In this case we find that T.O.T.A.L.

failed to demonstrate how the

calling of Mr.

Briggs as a witness caused the proceeding to be fundamentally unfair.

Allegation that fundamental fairness was denied

when the Addendum No.1

Significant Modification Permit (Addendum) was introduced into evidence.

T.O.T.A.L. states that it filed a Freedom of Information Act (FOIA) request with

the

City on May 24,

1995

to which the Addendum would have been responsive.

(Pet.

Brief at

22.)

T.O.T.A.L. asserts that the City’s consultant submitted the Addendum to

the Agency on

May 12,

1995.

(Pet.

Brief at 22.)

T.O.T.A.L. further

states,

however, that the City

responded to the FOIA request by providing the original Significant Modification Permit

request.

T.O.T.A.L. objected to the applicant’s introduction of the Addendum into

evidence

at hearing.

(Pet.

Brief at 22.)

T.O.T.A.L. argues that the Addendum is quite voluminous and

that the “failure to notify petitioner of the addendum

in the possession of the city’s agent

additional

evidence ofthe lack of fundamental fairness in the siting procedure.”

(Pet.

Brief at

23.)

T.O.T.A.L. also argues that the City

council members did not review the Addendum

which they were required to,

which further

demonstrates that the process was not

fundamentally fair.

(Pet.

Brief at 21-23.)

The City

asserts that a free

flow of information between

the Illinois Environmental

Protection Agency and a permit applicant is common, and that Section

39.2(c)(2) of the Act

(415 ILCS 5/39.2(c)(2)

(1994)) requires such submission.

(Resp. Brief at 18.)

The

City

further states that it was

seeking a Significant Modification Permit to bring its

existing

facility

into compliance with the current regulations while the siting process was

taking place.

(Resp.

Brief at

18.)

The City argues that T.O.T.A.L. has failed to present any evidence on how

the

introduction of the Addendum caused the proceeding to be fundamentally

unfair.

(Resp. Brief

18.)

The Board finds that T.O.T.A.L. has

failed to demonstrate that the introduction of the

Addendum caused the proceeding to be

fundamentally unfair.

In Sierra

Club, Madison County

Conservation Alliance, and Jim Bensman. v City ofWood River.

Wood River Partners.

L.L.C,

(October

1995), PCB 95-174,

in determining whether fundamental fairness was

denied concerning the availability of the transcript to

the public we stated,

citing Citizens

Against

Regional Landfill v.

County Board of Whiteside County and Waste Management of

Illinois.

Inc. (February

25,

1993), PCB 92-156)

(C.A.R.L.), that “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”.

(Id. at 7.)

In this

case T.O.T.A.L.

has alleged but has not demonstrated how the introduction of the Addendum

caused the proceeding to be

fundamentally unfair,

especially since the City council members

testified that

they did not utilize the information

for their decision.

We find that T.O.T.A.L.

has not demonstrated that the submission of the documents

caused the proceeding

to be

fundamentally unfair.

Allegation that the Hearing Officer was improperly chosen and paid by the City.

T.O.T.A.L.

states that the hearing officer who

“made many rulings

which have been

attacked herein which prejudiced the petitioner” was also “paid by the City of Salem and

chosen by the City

Council and Mayor of the City of Salem.”

(Pet.

Brief at 24.)

The City argues that T.O.T.A.L. has

not presented any evidence of how the City

caused the proceedings to be fundamentally unfair as a result of choosing the hearing officer

and paying the associated expenses.

(Resp. Brief at

18.)

The Board fmds that the manner in which the hearing officer was

paid and chosen does

not make the procedure fundamentally unfair.

T.O.T.A.L. did not object to the hearing

officer at the proceedings before the City.

T.O.T.A.L. does not argue as to how the hiring

and the paying of the hearing officer by the City may have caused

prejudice or the proceeding

to be

fundamentally unfair.

T.O.T.A.L. merely alleges

that it disputed some of the hearing

officer’s rulings and that the hearing officer was paid by

the City.

The Board has previously

addressed the issue of hearing officer bias in a landfill siting appeal case.

In C.A.R.L..

the

Board held that the same standard of determining bias can

be applied

to a hearing officer as it

applies to the decisionmaker.

(139 PCB

535.)

Using the standard

as enunciated in

B & B

Hauling Inc.,

the Board determined that the hearing officer may be

disqualified for bias or

prejudice if a “disinterested observer might conclude that he had in

some measure adjudged the

facts as well as the law of the case in advance ofhearing”.

(B & B Hauling.

Inc. at 451

N.B.2d

565-566.)

The Third District Appellate Court, in its analysis of the issue of hearing

officer bias and conflict of interest noted that the hearing officer in the C.A.R.L. case was

“ultimately under the control and direction of the State’s Attorney who is an elected official

responsible to

the community and subject to public disapproval.”

(C.A.R.L.,

627 N.B.2d

682, 685.)

Moreover,

the court also found that,

since the hearing officer was not the

decisionmaker, the same standard of fundamental fairness does not apply to

the hearing

officer.

Additionally Section 39.2 ofthe Act requires the local siting authority to conduct a

hearing which would include supplying the court reported and hearing officer.

Section 39.2(k)

of the Act allows for the local

siting authority to charge applicants for review under this

section a reasonable fee to cover the reasonable and necessary

costs incurred by

such county or

municipality in the siting review process including the hearing officer fee.

We find that where

the local siting authority is also the applicant the mere fact that the hearing officer was

chosen

and paid by

the local siting authority does not show prejudice on the part of the hearing officer

and does not cause the proceeding to be

fundamentally unfair.

There must be some showing

that the hearing officer caused the proceeding to be fundamentally unfair.

In this case

T.O.T.A.L.

has failed to demonstrate how the hearing officer caused the proceeding to be

fundamentally unfair.

For the reasons stated above we find that the hearing officer being paid

for and chosen by

the City has not caused the proceeding to be fundamentally

unfair.

Statutory Criteria

stated

above, T.O.T.A.L. is challenging the City’s decision on five ofthe statutory

criteria set forth in Section 39.2(a) of the Act.

The criteria which T.O.T.A.L.

is challenging

are set forth below along with corresponding arguments and Board discussion in the order as

they appear at Section 39.2(a) of the Act.

When reviewing challenges to a unit of local government’s determination

that the

statutory criteria have been satisfied,

the Board must apply the “manifest weight of the

evidence” standard of review. (Waste Management of Illinois.

Inc.,

513 N.E.2d 592;

See also

City of Rockford v. Pollution Control Board (2d

Dist. 1987),

125 lll.App.3d 384 80

Ill.Dec.

650,

465 N.E.2d 996.)

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.B.2d 262).

The province of the hearing

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

witnesses.

Merely because we could reach a different conclusion,

is not sufficient to warrant

reversal.

(City of Rockford v. Illinois Pollution Control Board and Frink’s Industrial Waste,

(2d Dist.

1984)

125 Ill.App.3d 384,

465 N.E.2d 996;

Waste Management of Illinois.

Inc. v.

IPCB,

(3d Dist.

1984)

22 Ill.App.3d 639,

461 N.B.2d 542;

Steinberg v. Petta,

(1st Dist.

1985)

139 Ill.App.3d 503, 487 N.B.2d

1064; Willowbrook Motel

v. Pollution Control Board,

(1st

Dist.

1985)

135 Ill.App.3d

343, 481 N.E.2d 1032.

the hearing before the City, the opponents made

several arguments and questioned

several witnesses on the issue of economics associated with

the proposed expansion

in relation

to several of the criteria in Section 39.2 of the Act.

Furthermore, T.O.T.A.L. argued that the

proceeding was fundamentally unfair because it was limited in presenting evidence as to the

economic issues.

As noted on pages

16-17, supra, economics as to the profitability of the

proposed expansion in relation to

the criteria of Section 39.2 of the Act is not properly part of

the local siting authority’s consideration

on the criteria.

The Board is not stating that

economics cannot be considered, but that any such consideration is in addition to the

consideration of the criteria.

(See F.A.C.T.

555

N.E.2d 1178,

1182.)

The facility

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

to serve.

T.O.T.A.L. asserts that “the

evidence at

hearing clearly established that there is no

need for

the expansion of the Salem landfill so as to

accommodate a region encompassing 16

counties or more.”

(Pet.

Brief at 38.)

T.O.T.A.L.

argues that the evidence (C.

7367

to 7501)

presented at the siting hearing through Mr.

Thompson’s testimony

demonstrates that the

proposed facility is “not necessary to accommodate the waste needs of the area it is intended to

serve.”

(Pet.

Brief at

11.)

Additionally T.O.T.A.L.

states that Mr.

Hermann, expert for

the

City,

“testified that all of the people and governments in Fayette,

Clinton,

Washington,

Jefferson, Clay County, and even Marion

County who could not utilize the Salem landfill, as

it is a city-owned landfill,

are being serviced with

regard to their waste disposal (R. 6526)”.

(Pet.

Briefat 41.)

Furthermore,

upon review of the record in its entirety, T.O.T.A.L. asserts

that the City did not perform market studies, cannot state a customer basis,

and proved that the

only entity who will be

utilizing the expanded landfill would be the City itself.

(Pet.

Brief at

4 1-42.)

T.O.T.A.L. concludes that the needs of the City can be

met by other waste haulers

and that the City’s fmding on this criterion

is against the manifest weight of the evidence

(Pet.

Brief at 42.)

The City asserts that the “testimony

introduced by the applicant and the materials

included in the application established that the proposed pollution control facility is necessary

to serve its proposed service areas.” (Resp.

Briefat 22.)

The City

states “there

are presently

pollution control facilities operating within the first six-county tier one territory.”

(Resp.

Brief at 23.)

The City argues that the testimony ofMr.

Thompson, T.O.T.A.L.’s witness,

flawed because he did not take into consideration that facilities were presently going through

the re-permitting process,

included counties which were

not within the City’s proposed

service area, and also included the D&L Landfill in Bond

County which has not been

constructed.

Therefore,

the City argues that the capacity of the D&L Landfill should not be

included in the discussion on need pursuant to

I~.

(Resp.

Brief at 23.)

The City states that

T. O.T.A.L. is improperly requesting

the Board to re-weigh the evidence.

(Resp. Brief at 21.)

The City concludes that T.O.T.A.L.

is requesting the Board to believe their witnesses instead

of the City’s.

The City argues that it is not for the Board to redetermine which expert is more

believable or to decide controverted

facts, as it is the City as decisionmaker who assesses the

testimony and renders a decision.

(Resp.

Brief at 21.)

Section

39.2(a)(1) of the Act provides that local siting approval shall only be granted if

“the facility is necessary to

accommodate the waste needs of the area it is intended to serve”.

In order

to meet this statutory

provision, an applicant for siting approval need not show

absolute necessity.

(Clutts v.

Beasley (5th Dist.

1989),

133 Ill.Dec. 633,

541

N.E.2d 844,

846;

A.R.F.

Landfill v. Pollution

Control Board (2d

Dist.

1988), 528 N.E.2d 390, 396;

Waste Management. Inc.,

461 N.B.2d 542,

546.)

The Third District has construed

“necessary”

as connoting a “degree of requirement or essentiality.”

(JcL,

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. Inc.,

530 N.B.2d 682,

689;

A.R.F.

Landfill,

528

N.E.2C1 390,

396; Waste Management ofIllinois.

Inc. v.

Pollution Control Board,(2d Dist.

1984),

Ill.Dec.

415, 463 N.B.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.

Pollution Control Board,

(1st Dist.

1992), 227 Ill.App.3d 533, 592 N.B.2d

148,

156.)

After careful review of the extensive record, we find that it is not clearly evident that

the proposed expansions are unnecessary to accommodate the waste needs,

as defined by the

courts,

such that we may reverse the City’s decision.

The City

council members questioned all

witnesses extensively on the arguments and evidence presented by the parties.

The Board is

not in the position to reweigh all the evidence as it is within the province of the local siting

authority to place credibility on the witnesses and to assign the appropriate weight to the

evidence.

We find that the City council members could reasonably have placed their reliance

on the testimony of Mr.

Hermann and corresponding evidence of the application in finding that

this criterion

had been met.

Additionally the Board has affirmed in Hediger v. D

& L Landfill

Inc..

(December 20,

1990), PCB 90-163, the local siting decision on this criterion where

opponents presented evidence of landfill capacity outside of the proposed service area.

For

these reasons we find that the City’s decision is not against the manifest weight of the

evidence.

The facility is so designed. located and proposed to be operated that the public health.

safety and welfare will be protected.

T.O.T.A.L. states that its expert witness,

Mr.

Norris, testified that “the background

water quality

data in

combination with the choice of statistic used to characterize that

background at the proposed landfill

site will make it almost impossible to

detect leachates (R.

7215).”

(Pet.

Brief at 46.)

Furthermore, T.O.T.A.L.

directs the Board’s attention

to the fact

that Mr.

Norris

was

concerned with background water data because it is utilized

to develop a

“trigger level”

which is to provide “the responsible party with

sufficient time to

react, remediate

and minimize the liability down the road.”

(Pet.

Brief at 47,

46-47.)

T.O.T.A.L argues that

Mr.

Norris believed

“that sites No.

2 and

No.

3 were not so located as to protect the public

health,

safety

and welfare (R. 7229.)”, and that Mr.

Norris had concerns that the proposed site

was located where the Vandalia Till was present.” (Pet.

Brief46-47.)

The City contends that T.O.T.A.L.

is arguing that its expert should have been relied

upon by the City in its siting decision rather than the applicant’s expert.

(Resp. Brief at 24.)

The City states that T.O.T.A.L.’s expert acknowledged

(C.

7326)

that there were no

issues

of technical concern

to him at the siting hearing that had not been presented to the City.

(Resp. Brief at 24.)

The City argues that “it

was

not against the manifest weight of the

evidence for the council to have believed the applicant’s witnesses,

rather than Mr.

Norris”,

who is not an

engineer and has never designed or constructed a landfill.

(Resp. Brief at 24.)

In this matter the applicant has presented evidence on

the design and operation ofthe

landfill through the testimony of its experts, Mr.

Herman (C.

6867

7038) and Mr.

Rawlinson

(C.

at 6650

6854), including

the evidence contained in the application.

In File v. D

& L

Landfill.

Inc.,. (FILE)

(5th Dist.

1991)

162 Ill.Dec. 414, 219 Ill.App3d

897, 579 N.B.2d

1228,

1236,

the court stated that the decision as to

whether the criterion is met is purely a

matter of assessing credibility of expert witnesses.

In Clutts v.

Beasley, (5th Dist.

1989)

133

Ill.Dec 633,

185 Ill.App3d 543,

541 N.E.2d 844,

846,

the court stated

that this criterion is not

a guarantee against contamination.

Again,

it is not within the Board’s purview to reweigh all the evidence, rather it is the

province of the local siting authority to place credibility on the witnesses and to

weigh the

evidence.

The mere fact that a different conclusion

may be drawn from the evidence is not

sufficient to warrant reversal.

We fmd that the City Council

Members could reasonably have

placed their reliance on the testimony of Mr.

Hermann and Mr.

Rawlinson and the

corresponding evidence of the application.

For these reasons we find that the City’s decision

is not against the manifest weight of the evidence.

The facility is so located as to minimize

incompatibility with the character of the

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

T.O.T.A.L.

argues that “the manifest weight ofthe evidence is that the facility will not

minimize incompatibility and will have, and already has had,

an effect on the value of the

surrounding property.”

(Pet. Brief at 27.)

In support of its argument, T.O.T.A.L. puts forth

four main assertions:

no adequate study

was performed by the applicant’s experts regarding

the impact on the market

value ofthe local property and therefore their opinion on market

value should be disregarded;

the proposed landfill expansion will and already has caused a

substantial impact on the property

surrounding the landfill;

the proposed landfill is in a

wetland area and will have a substantial impact;

and 4)

that the design of the landfill does not

call for adequate

screening to

minimize the impact of the landfill.

Those arguments are set

forth in more detail below.

There was no adequate study performed regarding the impact of the expansion.

T.O.T.A.L.

states that the testimony of applicant’s expert, Mr.

Briggs,

“was not proper

according

to real-estate appraiser standards

and must, therefore,

be ignored.”

(Pet.

Brief at

27.)

T.O.T.A.L.

states that its witness,

Mr.

Hall, testified that, based upon what he was

given and reviewing the basis of the opinions of the persons offered by the applicant, Mr.

Briggs and Mr.

Somer,

he did not have enough information to make any kind of determination

with regard

to the impact of the landfill on the neighboring homes and the effect on

surrounding property.

(Pet.

Brief at 29.)

T,O.T.A.L.

states that Mr.

Hall testified that for a

proper study

to be performed that “we would probably be looking at landfills throughout the

Midwest and picking any sort of damages that might have occurred and to measure damages,

you have to

see what a property sold for before the external problem came in and then measure

the effect afterwards.”

(Pet. Brief at 29,

at 7044.)

T.O.T.A.L. argues that Mr.

Hall’s

testimony demonstrates that Mr.

Brigg’s

study is insufficient and that it

“could not be accepted

by the city council as he did not follow the rules of conduct according

to the testimony of Gary

Hall.” (Pet Brief, at 30-31.)

In addition, T. O.T.A.L.

puts forth the testimony ofMr.

Wright,

a licensed appraiser in the State of Illinois,

who testified

support of Mr.

Hall’s testimony as

further evidence that the opinion of the applicant’s witness,

Mr.

Briggs, is flawed and should

not be utilized by the City.

(Pet. Brief at 3 1-33.)

Damage to Property Values

T.O.T.A.L. argues,

in support of its contention that the property values have been

substantially impacted, that the testimony of Mr.

Peterson concerning the planned subdivision

which is on “hold”

demonstrates that the property value has been impacted.

(Pet.

Brief at

33-

35.)

Wetlands Impacted:

T.O.T.A.L.

argues that “due

to the presence of wetlands on the proposed landfill

expansions No.

2 and No. 3, it is obvious

that with no mitigation

plans set forth and with no

recognition of destruction of wetlands,

the expansion cannot be so located to

minimize the

compatibility

with the surrounding property.

In support of its argument, T.O.T.A.L. cites to

the testimonies of Mrs.

Hourigan

(C.

7563 to

7596)

and Mr.

Boyles (C.

7597 to

7663).

(Pet.

Brief at

35-37.)

Both witnesses for T.O.T.A.L.

testified that the proposed landfill

expansions are not located to minimize the effect on the wetlands.

(Pet.

Brief 35-37.)

Lack of Screening

Finally, T.O.T.A.L.

argues that “throughout the entire record there is no indication of

screening which would adequately

minimize the impact on the surrounding property.”

(Pet.

Briefat

37.)

T.O.T.A.L.

asserts that no study

was developed concerning the impact which the

120 to

130 feet high

mound would have on the City. (Pet Brief, at 37.)

T.O.T.A.L.

argues

that such evidence is necessary to

determine,

the possible impact on the surrounding area

which could include the entire town,

b) whether or not the city has taken adequate steps to

minimize the effect

on the surrounding community, and c)

determine the compatibility of said

expansion with the property.

In considering these assertions T.O.T.A.L.

concludes that

pursuant to F.A.C.T. the City has not met its burden of proof on this criterion and the finding

of the City council members in favor of the applicant is against the manifest weight of the

evidence.

The City

contends that T.O.T.A.L. is arguing that its experts are the only experts that

may give opinions as to

whether the proposed expansion is so located as to minimize

incompatibility with

the character of the surrounding area and to minimize the effect on the

value of the surrounding property.

(Resp.

Brief at 25.)

The City asserts that Mr.

Briggs, its

expert,

personally visited the expansion area of the landfill on

two occasions;

reviewed the

zoning map, aerial photographs describing the surrounding land uses, and the land

sales in

the

area;

and took his own photographs before presenting

an opinion on the criterion.

(Resp.

Brief at

25.)

The City states that Mr.

Briggs made a complete examination concerning the

character of the ground surrounding the proposed expansion and described the natural

screening that was currently at the site.

(Resp. Brief at 26.)

Additionally, the City states that

evidence

submitted with the application depicts the height of the trees, the conifer screening

and the maximum height of the landfill and that

“the top of the natural

screening presently in

place would be less

than

1/2 feet from the maximum height of the landfill in over 20 years

without regard

to the trees continuing to

grow.”

(Resp. Brief at 26.)

The City asserts that

T.O.T.A.L. did not cross-examine Mr.

Briggs or request any information

concerning the basis

of his opinion.

(Resp.

Briefat 26.)

The City asserts that T.O.T.A.L. presented two local residents

as witnesses,

Mr.

Dunahee and Mr.

Wright,

neither of whom presented an

opinion on the criterion being met or

not, but who gave only personal viewpoints concerning the criterion.

(Resp. Brief at 25.)

Additionally, the City cites to a statement made by Mr.

Wright in a letter to T.O.T.A.L.’s

attorney, Mr.

Milner, which states “I might point out that I very recently completed a

residential appraisal of a property very near the present landfill in

Salem, and I saw

justification to adjust the value ofthe subject downward because of the existing landfill”.

(Resp. Brief at

25.)

The City asserts that neither witness

for T.O.T.A.L. reviewed the

application,

knew of the proposed tons per day,

knew the traffic patterns,

knew of the vertical

height of the landfill or any of the proposed screening for the landfill.

(Resp.

Brief at

25,

at 7112, 7355-7356.)

The City

states that T.O.T.A.L.’s witness Mr.

Hall did not render an opinion as to

the

criterion,

was hired after the first day of hearings, and only reviewed the transcript of the

testimony of Mr.

Briggs prior to testifying on

this criterion.

(Resp. Brief at 25.)

The City

also argued that the testimonies from the remaining witnesses Mr.

Petersen, Ms. Hourigan

and

Mr.

Boyles are not credible.

(Resp. Brief at 26-27.)

The City contends

that the testimony of

Mr.

Petersen concerning damaged property value, demonstrates that the subdivision was not

planned,

and since there were no written offers to purchase property,

that his testimony as to

damaged property values is speculative in

nature.

(Resp.

Brief at 27, C. at 7587.)

The City

asserts that Ms. Hourigan’s testimony

that the proposed landfill is to be located on wetlands

was

shown to be totally incorrect due to Ms.

Hourigan’s misunderstanding

that all three

criteria for a classification of wetlands are needed instead of only two out of the three.

(Resp.

Brief at

27.)

Finally,

as to the testimony of Mr.

Boyles,

the City

simply

cites to

the

statements made by Mr.

Rapps in his public comments

(C.

at 6112-6113) that Mr.

Boyles’

testimony is not credible.

(Resp.

Brief at 27.)

The City asserts that, of all the testimony and evidence submitted

into the record before

the City council

members on

this criterion, the only valid opinions were from Mr.

Briggs and

Mr.

Somer.

(Resp. Brief at 27.)

The

City argues that T.O.T.A.L. is requesting

the Board to

reweigh the facts, but that “it

was

to the city council

to decide the conflicting

evidence and

to give that evidence the weight that it so desired.”

(Resp.

Brief at 27.)

The applicant is required to

minimize the incompatibility of the facility on the

surrounding area and minimize

the effect

on property values.

This requirement acknowledges

that some effect is likely.

However,

the applicant is not required to choose the best possible

location or to guarantee that no

fluctuation in property values occurs.

(Clutts

541 N.E.2d

844,

846.).

Additionally,

the court in B & B Hauling.

Inc. stated

“testimony adequately

showed that petitioners had taken

and planned

to take steps to do what they could to

minimize

the impact of the fill on the surrounding areas....”

(B & B Hauling.

Inc.

415 N.E.2d

555,

576.)

The local authority is to consider that the applicant

design plans take reasonable steps to

minimize the impact ofthe proposed landfill.

The record contains

extensive information concerning the compatibility or

incompatibility of the site.

The parties have presented many facts as to

the screening of the

proposed expansion, the impact as to property value of the surrounding property, whether the

facility is to be located on wetlands which would possibly require mitigation of effects on those

wetlands if present and whether the proper studies have been conducted.

We find that the

City’s decision on this criterion

is not against the manifest weight of the evidence.

T.O.T.A.L.

has presented evidence that demonstrates conflicting

opinions of the

process by which this criterion is to be demonstrated and whether the City’s plan indeed

minimizes the incompatibility of the proposed expansion.

The City’s expert visited the site,

reviewed zoning

maps and aerial photographs, read the application and gave his opinion as to

whether the site is designed

so as to

minimize its incompatibility.

T.O.T.A.L.’s expert did not

deliver

an opinion as to

the criterion itself, but only as to the way the City’s expert performed

an appraisal ofproperty values.

Additionally, T.O.T.A.L. has presented individual citizens

who claim that it will effect the property value

and that a speculative property

sale was not

executed due to the planned

expansion, but do not state to a certain

extent the impact.

As to

the wetlands

issue,

both parties presented witnesses that argued whether or not the proposed

expansion was in

areas where wetlands

are located.

T.O.T.A.L. ‘s witnesses argue that a

portion of the proposed expansion is in an

area where there are wetlands while the City argues

the opposite and that T.O.T.A.L. ‘s

witnesses are not credible.

The

City presented evidence

through the testimony of Mr.

Briggs and the application as to the planned

screening for

the

proposed expansion and that the impact

is minimized by being located near an existing landfill.

Again,

the Board cannot reweigh this evidence

or the credibility of the witnesses.

are not reviewing this matter

to reweigh the evidence to determine if the proposed landfill

expansion is to be located on wetlands or to

determine whether appraisal ofthe property was

proper, but to determine if the manifest weight of the evidence is against the City’s decision.

We find that the City’s decision

is consistent with the manifest weight of the evidence.

The

record contains

sufficient evidence in which the City could reasonable place its reliance

concerning the efforts of the applicant to

screen the proposed expansions,

that the proposed

expansions are not located in wetlands, the proposed expansion is near an existing landfill and

that the impact to surrounding property has been minimized.

For the reason stated above,

find that the City’s decision is not against the manifest weight of the evidence.

The traffic patterns

to and from the facility are so designed as to

minimize the impact on

existing traffic flows.

T.O.T.A.L. contends

that the City has failed to establish that the traffic pattern

to and

from the facility

is designed to minimize the impact on existing traffic flows.

(Pet.

Brief at

45.)

T.O.T.A.L states that the traffic entering the landfill must cross railroad tracks that have

to 20 train crossings a day.

(Pet Brief at 45.)

T.O.T.A.L.

asserts that no

study was

done

by the City’s expert concerning the train crossing and the amount of delay that may be caused

which could result in a cross street being blocked.

(Pet.

Brief at

45-46.)

T.O.T.A.L.

argues

that a traffic impact study

was not performed and that the City’s decision is against the

manifest weight ofthe evidence.

(Pet. Brief at

45-46.)

The’ City asserts that “the

only

testimony before the city council

on this matter was

presented by the applicant.”

(Resp. Brief at 28.)

The City contends that its expert provided

evidence at “Tab No.

8 of the Siting Application” about the existing conditions at the site, the

amount of landfill traffic, a traffic accident study

and his opinion on this criterion.

(Resp.

Brief at 28.)

The City concludes its argument concerning this issue by stating that “as

there

was no evidence presented by T.O.T.A.L.

concerning this criteria,

it is hard

to understand

how T.O.T.A.L. now

challenges it before the Pollution Control Board based on the manifest

weight of the evidence standard ofreview.”

(Resp. Briefat 28.)

Although T.O.T.A.L.

has not presented any evidence, it may challenge the City’s

decision on this criterion,

the question before the Board is whether the local

siting authority’s

decision is against the manifest weight of the evidence as presented by the applicant.

Opponents to a landfill siting may impeach

the evidence presented by

the applicant through

cross-examination without presenting their own evidence.

In this case T.O.T.A.L.

challenging the City’s decision based on the responses of the applicant’s expert witness on

cross-examination.

(Resp. Brief at 45-46, C.

at 6394-6396.)

In FILE the court stated

that this criterion

“does not refer

to traffic noise or dust, nor

does it relate to potential negligence ofthe truck drivers” and that “the

operative word is

‘minimize’,

and it is recognized that it is impossible to eliminate all problems.”

(FILE 579

N.B.2d

1128,

1236-1237.)

The Board can

not reweigh the evidence in this matter and there is

sufficient evidence in the record for the City to

reasonably find that the impact ofthe proposed

expansions is minimized.

We find that the City’s decision is not against the manifest weight of

the evidence.

The facility is consistent with

the Marion County solid waste management plan.

T.O.T.A.L.

maintains that the Marion County

(County) solid waste management plan

did not include the proposed expansion.

(Pet.

Brief at 42.)

In support of its contention,

T.O.T.A.L. presented testimony of Mrs.

Sullens

(C. at 7503 to 7532),

Marion County

Board

member,

which states that the County was not in favor of a 16 county regional landfill in

Salem, Illinois.

(Pet.

Brief at 43,

C. at 7508.)

T.O.T.A.L.

argues that since the County solid

waste management plan does not include the proposed expansion,

the City’s decision is against

the manifest weight of the evidence.

(Pet.

Brief at 42,

45.)

The City asserts that the “Phase II Solid Waste Plan” adopted by the County considered

the expansion of its landfill and is therefore consistent with

the solid waste plan.

(Resp. Brief

at 2 8-29.)

In support of its contention,

the City cites to certain excerpts

from the solid

waste

plan

submitted into the record before the City

(C.

5550-5747).

(Resp.

Brief at 28.)

The City

argues that it is clear from the solid waste plan that the application is consistent with

the plan

and that Ms. Sullens’ testimony is not credible.

(Resp. Brief at 29.)

Based upon the record,

we find that the City was justified in

finding that the proposed

facility is consistent with the solid waste management plan

for the County.

The City

was

presented on the one hand, a solid waste

plan that was adopted by the County

which contained

language in support ofthe proposed expansion and on

the other the testimony of a County

Board member who

stated

that the adoption of the plan containing that language was a mistake.

There was no evidence before

the City

which indicates that the plan did not support the

proposed expansion or that the intent of the plan was

not to support the proposed expansion.

The only evidence that was before the City was presented by one County

Board member who

testified that she and possibly others would not have adopted

such plan if they knew it

contained

such language.

We find that the City could reasonably have placed reliance on the plain language of

the plan

in finding that the proposed expansion

was consistent with the County’s currently

adopted solid waste management plan.

There were no arguments or evidence presented that

the County’s plan was not legally adopted or that the plan was not law at the time of the City’s

decision.

The Board cannot reweigh the evidence or place credibility on the witnesses.

For

the above

stated reasons,

we find that the City’s decision

is not against the manifest weight of

the evidence.

Conclusion

The City of Salem’s decision granting siting approval for

the proposed expansion of

Salem Municipal Landfill No.

2 and Landfill No.

3 is affirmed in its entirety.

We reaffirm

that

local governments may hold an economic

interest to

the siting of a landfill and be the

siting authority as is the case here.

Such

action does not infringe upon the siting participants

due process rights and thus, does not render a local

siting process fundamentally unfair.

Having,..reviewed the record and the arguments

concerning the challenged criteria we also find

that City of Salem’s decision is not against the manifest weight of the evidence.

We therefore

affirm its decision to grant siting approval.

This opinion constitutes the Board’s

findings of fact and conclusions of law in this

matter.

ORDER

The September 11,

1995 decision of the City of Salem granting siting approval for the

proposed expansion of the City ofSalem’s Landfill No.

and Landfill No.

3 is hereby

affirmed.

IT IS SO ORDERED.

Section 41 of the Environmental

Protection Act (415 ILCS

5/4 1) provides for the

appeal of final Board orders within

35 days of the date of service of this order.

(See also 35

Ill. Adm.

Code

101.246,

Motion

for Reconsideration.)

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control Board,

hereby certify that

the above opinion and order was adopted on the

day of

i))

~-‘~-~‘

1996,

by a

vote of

7C.

Dorothy ~

Gunn,

Clerk

Illinois P~llutionControl Board