ILLINOIS POLLUTION CONTROL BOARD
July 21, 1994
CITY OF GENEVA,
)
)
Petitioner,
V.
)
PCB 94—58
(Landfill Siting Review)
WASTE MANAGEMENT OF ILLINOIS,
)
INC. and COUNTY BOARD, COUNTY
)
OF KANE, STATE OF ILLINOIS,
)
)
Respondents.
LEE R. CUNNINGHAM AND MATTHEW MORAN OF GARDNER, CARTON & DOUGLAS
APPEARED ON BEHALF THE PETITIONER;
DONALD J. MORAN OF PEDERSEN & HOUPT APPEARED ON BEHALF OF THE
RESPONDENT, WASTE MANAGEMENT OF ILLINOIS, INC.; AND
TIMOTHY P. DWYER, OFFICE OF DAVID R. AKEMANN, KANE COUNTY STATE’S
ATTORIEY APPEARED ON BEHALF OF THE RESPONDENT, KANE COUNTY BOARD.
OPINION AND ORDER OF THE BOARD (by C. A. Manning):
On February 9, 1994, pursuant to Section 40.1(b) of the
Environmental Protection Act (“Act”) (415 ILCS 5/40.1(b)), the
City of Geneva (“City” or “Geneva”) timely filed the instant
petition for review of a landfill siting decision with the
Pollution Control Board (“Board” or “IPCB”). The petition
challenges the January 11, 1994 decision of the County of Kane
(“County” or “Kane County”) granting site location suitability
approval for an expansion of the Settler’s Hill Recycling and
Disposal Facility. (“Settler’s Hill Landfill” or “Settler’s
Hill”.) (C—33l9 to C-3324.)’ Pursuant to Section 39.2 of the Act
(415 ILCS 5/39.2), on January 11, 1994 the Kane County Board
adopted Ordinance No. 94-19 which found that the landfill
‘The transcripts from the hearings before Kane County will
be cited as “9/21/93 Tr. at
____,
9/23/94 Tr. at
____
and 10/6/93
Tr. at
____.“
The record of decision below will be cited as “C—
.“
At the Kane County hearings, the City of Geneva offered as an
exhibit, the Solid Waste Management Plan for Kane County. It
will be cited as “City Exh. #1, SWMP at
..“.
“Joint Exh. #1”
refers to the stipulation of facts entered at the Pollution
Control Board’s April 26, 1994 hearing by Kane County and the
City of Geneva and will be cited as PCB R.,. The transcripts
from the Board’s hearing will be cited as “PCB Tr. at
The petitioner’s brief will be cited as “City Br. at
____“.
Kane
County’s brief will be cited as “County Br. at
____“
and Waste
Management of Illinois’ brief will be cited as “WNII Br. at
~“.
2
applicant, Waste Management of Illinois, Inc. (“WNII”), had
satisfied all of the relevant statutory criteria.2 (C-3321.
In petitions for review of local landfill siting decisions,
the Board derives its authority from Section 40.1 of the Environ-
mental Protection Act. Pursuant to that section, the Board is to
hold a public hearing “based exclusively on the record before the
county board” The Board held such hearing on April 26, 1994 in
Geneva, Illinois before Board Hearing Officer Todd Parkhurst.
The parties presented only a stipulation of fact concerning Kane
County’sJoint
Exh.adherence#1.) Fivetomembersits
ownoflandfillthe
publicsitingofferedordinance.public comment
(~
atPost-hearingthehearing.briefsAmongwerethesubmittedcoitunentersbeginningwasDr.MayRodney26,
withB.
Nelson.the 3
last reply brief filed June 16, 1994.~
ISSUES PRESENTED
POR REVIEW
The issues presented to the Board for review by the City of
Geneva can be summarized as follows:
A. Did Kane County’s failure to strictly follow the
procedural requirements of its own landfill siting
ordinance divest it of jurisdiction to hear the
application?;
2Kane County determined that the statutory criteria under
Section 39.2(a) were all relevant except for the criteria
regarding the disposal of hazardous waste and regulated recharge
areas. The County found these criteria were inapplicable. (C-
3321.)
3On February 1, 1994, Dr. Nelson filed his own petition for
review, which was docketed as PCB 94—51, Rodney B. Nelson, III
v. Kane County and Waste Management, an which also challenged
the January 11, 1994 Kane County siting decision. The Board
consolidated the two cases by order of February 17, 1994.
However, on April 21, 1994, we granted WMII’s motion to dismiss
Dr. Nelson’s petition for lack of standing. This action in
effect bifurcated the cases. On April 25, 1994, Dr. Nelson filed
a motion for reconsideration asking that we reverse our decision,
and find standing. That motion is the subject of a separate
order today, in docket PCB 94-51.
40n July 1, 1994, the City of Geneva filed a Motion to
Complete the Record to include a legal brief filed by Geneva with
Kane County on October 13, 1993 regarding the issue of concurrent
jurisdiction. Geneva indicates the brief appears to have been
omitted from the record of decision. The motion is hereby
granted.
3
B. Did Kane County provide the participants with a
fundamentally fair hearing on WMII’s petition?;
C. Are any of Kane County’s decisions on the three
challenged statutory criteria against the manifest
weight of the evidence? The criteria challenged are
that:
1. The landfill expansion is necessary to accommodate
the waste need of the area it is intended to serve
(“need criterion”) (Section 39.2(a) (1));
2. The landfill expansion is so designed, located and
proposed to be operated that the public health,
safety and welfare will be protected (“design
criterion”) (Section 39.2(a) (2));
3. The landfill expansion is consistent with the
County’s Solid Waste Management Plan, “SWNP
criterion”) (Section 39.2(a) (8))
D. Is Geneva entitled to “alternative relief” by adding a
condition to the Kane County landfill siting decision
requiring WMII to seek siting approval from Geneva?
FACTUAL AND LEGAL BACKGROUND
Kane County is a unit of local government vested with the
statutory authority and responsibility to hold a public hearing
for the purpose of considering and acting upon applications to
approve the siting of “new” regional pollution control facilities
under Sections 3.32, 39(c), and 39.2 of the Act. (415 ILCS
5/3.32, 39(c), and 39.2). “New” regional pollution control
facilities, can include solid waste landfills, or the expansion
of such landfills, as is the case here.
Original 1982 Siting Approval
Settler’s Hill Landfill was originally sited in 1982. (C-
3356.) At that time, it was assumed by both Kane County and
Geneva that, since 27 acres of the original 150 acre landfill
site were located within the corporate limits of Geneva, both
units of local government had concurrent statutory siting
authority. Therefore, both Geneva and Kane County held public
hearings pursuant to the Act. Both Geneva and Kane County
approved the landfill in l982.~
5Geneva granted siting approval on May 24, 1982 in, “An
Ordinance Granting Site Approval to a Regional Pollution Control
Facility Subject to Various Stipulations under the Illinois
4
As approved in 1982, the original landfill contained 150
acres with 101 acres for actual waste disposal at a maximum
vertical height of 800 feet (C-3332 and C-3351.) Located within
the Geneva city limits were 27 acres which included the
landfill’s access road, its entrance gate and its scales. (C—
3351.) The remaining acreage of the landfill was located within
unincorporated Kane County. (I~?i~J
The 1982 siting process also gave Geneva some operational
responsibility for oversight of Settler’s Hill. Those
responsibilities, which continue today, include: monitoring the
landfill operations (in addition to monitoring the initial
construction and development), receiving documents relating to
the waste stream, groundwater monitoring activities and
reporting, all construction reporting and documentation, and
monitoring the City of Geneva’s Well No. 7. (10/6/93 Tr. at 47-
49.)
1987 siting
Expansion Approval
In 1987 WMII applied to Kane County for an expansion of the
original landfill. The application sought to expand Settler’s
Hill by an additional 141 acres and an additional landfill life
of 9.96 years or until the year 2003. (C-28A.) Of these 141
acres, 78 were designated for actual waste disposal and the maxi-
mum vertical extension of the facility was increased to 900 feet.
(C—3351.) None of the 141—acre area of expansion was located
within Geneva limits (WMII Br. at 2) and no alterations were made
to the City’s jurisdiction of the access roads, or the gate, or
any of the other responsibilities provided for in 1982. WNII did
not file an application for siting approval with Geneva, and
Geneva did not participate in the Kane County siting process.
Geneva explained in its post-hearing brief that it did not
participate in the 1986 expansion because it was able to reach a
“mutually agreeable resolution regarding WMII’s expansion re
quest”. (City Br. at 19.) At the Kane County hearing, Thomas
Talsma, Geneva employee, testified that Geneva did not
participate in the 1987 siting process because the Mayor of
Geneva and the City Council relied upon a letter from Philip
Elfstrom, then Chairman of the Kane County Board, to Mayor
Richard Lewis that indicated the City “could be assured
...
there
would be no further expansion of the landfill beyond the subject
limits and specification found in the 1987 petition.” (10/6/93
Tr. at 95; see also Public Comment of Mayor William T. Ottilie,
10/6/93 Tr. at 113.)
At the hearing before Kane County, Geneva tried to introduce
Environmental Protection Act”. Kane County and WNII were co-
petitioners in the local siting hearing before the City of
Geneva. (City Br. at 15; C—3328— C—3340.)
5
the actual letter as an exhibit for the purpose of explaining why
the City did not assert jurisdiction in 1986. (10/6/93 Tr. at
22.) The hearing officer below sustained the objection of WNII
and did not admit the letter. (10/6/93 Tr. at 27.) Geneva has
asked that we review the hearing officer’s determination and
reverse his decision. (10/6/93 Tr. at 60.) We will not reverse
the hearing officer’s decision because the actual letters are not
crucial to our determination. We believe the record, without the
letter, contains sufficient information to explain the situation
as it unfolded in 1986 and 1987. Furthermore the letter is
ultimately not relevant to our decision because the exercise of
siting authority is a statutory duty not subject to waiver by
action or inaction of the local siting authority. (See our
discussion infra at 26.).6
After holding public hearings pursuant to the Act, on
February 10, 1987, Kane County passed Resolution No. 87-33
approving WMII’s application. The decision was appealed to the
Board and we affirmed. (~ Valessares et al. v. Kane County and
Geneva, (July 16, 1987) 79 PCB 106, PCB 87—36.)~
The Landfill Expansion At Issue
On May 28, 1993, WNII applied for the instant expansion of
Settler’s Hill Landfill, this time at the apparent urging of Kane
County.8 This expansion would extend the actual boundaries of
6On June 13, 1994, WMII filed a Motion to Strike Exhibits
and to Declare Request Nos. 5 and 6 Admitted. Geneva answered two
questions regarding concurrent jurisdiction by offering the
“Phillip Elf strom” letter in addition to several other documents
regarding Geneva’s failure to conduct a local siting hearing in
1987. We are granting the motion to strike, but are denying the
motion to admit requests nos. 5 and 6. We do so for the same
reasons we upheld the hearing officer’s order excluding Geneva’s
correspondence.
7Valessares was a third—party appeal of Kane County’s
decision granting an expansion of Settler’s Hill Landfill in
1986. The petitioners, none of whom were Geneva, challenged the
fundamental fairness of the siting process and the decision’s
failure to satisfy the statutory criteria in Section 39.2(a) of
the Act. Petitioners argued that the process was fundamentally
unfair on the basis of alleged ex parte contacts between the
county and
WMII,
and that conflicts of interest existed due to
Kane County’s financial interest in the expansion.
As stated
above, we affirmed Kane County’s decision.
‘
In May of 1992,
Kane County passed Resolution No. 92—102
providing that Settler’s Hill should be expanded immediately.
(C-3350.) Thereafter, the county sent a letter dated May 22, 1992
to
WNII indicating its intention
to “engage the services” of WMII
6
the site by seven acres from 291 to 298 acres, providing an
additional 137 acres of waste capacity
for an additional 8.96
years of life beyond the 1987 extension, or until the year 2012.
(C—28A.) The expansion does not
include any area within
the
corporate limits of the City of Geneva, but the expansion
area is drawn up to Geneva’s border. The only
part
of the
Settler’s Hill Landfill which is within Geneva’s city limits is
the original 27 acres which was the subject of the original 1982
siting hearing. Those 27 acres include the gate area, and
according to WMII’s
application as
approved by Kane County, WHII
intends to continue its use of that gate and the original access
roads for the landfill for ingress and egress into the entire
landfill including the original area and the proposed expansion.
(City Br. at 14.) As in 1987, an application for expansion was
never filed with Geneva. However, unlike in 1987, the City
affirmatively asserts its position that it is a proper siting
authority concerning this expansion.
Approximately six weeks prior to Waste Management’s applica-
tion, on April 13, 1993, Kane County adopted Ordinance No. 93-85,
entitled “Ordinance Establishing Rules of Procedure for New Re-
gional Pollution Control Facility Site Approval Applications in
Unincorporated Areas of Kane County, Illinois”. (C-3395
-
C-
3416.) The ordinance creates notice and procedural requirements
additional to those set forth in the Act. While there is no
dispute that both WNII and the Kane County followed all the
statutory notice and procedural requirements pursuant to Section
39.2(b) of the Act, Kane
C.
.r~t:~and Geneva stipulated that Kane
County “did not strictly follow~ its own procedural ordinance.
Specifically, the ordinance requires that a landfill application
be published within 60 days of its filing; it was published on
the 63rd day. (Joint Exh. 1, pars. 1-3.) The ordinance also
requires that Kane County publish two hearing notices informing
the public that any evidence to be introduced at the county’s
local siting hearings must be submitted seven days prior; the
notices were published but they failed to contain this
information. (I~
at 4-6.) Finally, the ordinance required that
at least once during the week prior to hearing, the county
publish a “display ad”; instead, the county published simply two
“legal notices”. ~
at pars.
7—9.)
Pursuant to the siting ordinance referenced above, Kane
County selected a “Siting Hearing Committee” which was to be
comprised of “professionals with expertise pertaining to the
statutory criteria which the Kane County Board must consider in
to assist in the planning, design, siting and permitting of the
expansion. (Id.)
7
its decision”. ~ (C-3398; City Br. at 7.) The ordinance required
the committee to “evaluate the application and testimony, assess
potential problems and provide the County Board with reports as
to specific criteria”. (C—3398—99.)
Warren Kammerer, Chairman of the Kane County Board, appoint-
ed to the Committee all of the members of the Kane County Board
itself, including himself, Mary Richards, (Public Health Com-
mittee Chair), Pat Sjurseth (Development Committee Chair),
Michael McCoy, (Transportation Committee Chair), and Walter
Treiber, Jr. (Public Safety Committee Chair). The Siting
Hearing Committee also consisted of the following consultants:
Gerald Salzman, Barton and Aschman, Inc.,
Wayne Breda, President
of American Environmental Sciences and Technology, Inc.,
(“AESTI”) Francis Lorenz, Lorenz and Associates, George Wight,
Sr., President, Wight Consulting Engineers, Inc. and Dr. Nolan
Aughenbaugh, Consulting Engineer, Oxford,
MS. (C-3422.) The
consultants all submitted reports or comments, the relevant
portions of which are discussed under the statutory criteria to
which they relate.
Pursuant to both the Act and its ordinance, Kane County held
timely public hearings on the siting application on September 21,
September 23, and October 6, 1993. The hearing officer opened a
30—day public comment period on October 6, 1993, which closed on
November 5, 1993.
The Kane County Clerk received several hundred
public comments on the proposed expansion. (C-345l to C-3830.)
Also during the public comment period, Geneva and WNII filed
legal arguments addressing the issue of Geneva’s claimed status
as a local siting authority concurr’~t with the County and its
corresponding request that a condition
be included in the Kane
County decision requiring
WMII
to apply for siting approval from
the City of Geneva. (C—2678 to C-2686, C—2777 to C—3000l.) The
evidence presented at the County’s hearing which is relevant to
our decision on review is summarized below.
1. The Need Criterion
The need criterion requires the
applicant show that the
landfill extension is needed to accommodate the waste needs of
the area it is intended to service. In this case, the Settler’s
Hill Landfill expansion is intended to service all of Kane County
and portions of the following surrounding counties: a small,
eastern portion of DeKalb County, the southern edge of McHenry
9At a minimum the committee had to consist of a hydrogeologist,
an engineer, a real estate expert, a traffic planner and a public
health and safety professional.
(C-3398.)
8
County, the southwest
tip of Lake County, a small portion of
Cook, the western edge of DuPage,the northwest portion Will and
the northern edge of Kendall County. (9/21/93 Tr. at 59.)
At hearing, WMII offered the testimony of its employee, Will
Flower, in support of the need criterion. He testified that he
performed an “independent analysis” of the written report and
supporting data of Rolf C. Campbell & Associates which was
presented as part of the application submittal (9/21/93 Tr. at
57.) He concluded that the facility is necessary to accommodate
the waste needs of the service area in order to “dispose of solid
waste that will not be reduced or recycled”. (9/21/93 Tr. at 57
and 62.)
He testified that the waste total for 1992 was 1.2 million
gate yards; the total from April 1992 to March 1993 was 1.6
million gate yards and the projected total for calendar year 1993
was estimated at 1.2 million gate yards. He estimated that,
after 1993, the facility will
receive an additional 200,000
gate yards, totalling 1.4 million gate yards per year until the
facility closes in 2012. He considered any possible population
decreases, and the anticipated increase in the county recycling
goal’°. However, in light of the closure of Woodland Recycling
and Disposal Facility in 1997 he testified there would be an
increased “need”. Woodland Recycling and Disposal Facility
located in Elgin Township (C-31A) is scheduled to close in 1997,
causing 1.4 million gate yards of waste each year to be diverted
to Settler’s Hill.
(9/21/93 Tr. at 62.) Additionally, the
closure of two nearby DuPage County landfills were also
calculated by Mr. Flower into the need appraisal. Both Greene
Valley Landfill (which currently receives approximately 10
million gate yards per year) and Mallard Lake Landfill are
scheduled to close in the year 2000.
2.
The
Design Criterion
The design criterion requires that the landfill extension be
so designed, located and proposed to be operated in a manner that
will protect the public health, safety and welfare of the public.
In support of this criteria,
Joan Underwood and Paul Wintheiser,
both employees of RUST Environment
& Infrastructure, each pre-
pared a written report regarding his or her opinion of the land-
fill expansion’s effect on the public health, safety and the
environment. (Underwood Test. and Wintheiser Test., 9/21/93 Tr.
at 66 and 88.) Ms. Underwood prepared a report giving her
evaluation of the geology and the hydrogeologic conditions at the
site and
Mr. Wintheiser, prepared
a report on the site design.
‘°Kane County’s Solid Waste Management Plan provides for an
increase in recycling from 29.7 in 1993 to 47.3 in 1998.
9
At hearing, Ms. Underwood testified on the geology of the
site and her methodology for determining the geology. (~~)She
concluded that from a hydrogeologic and geologic standpoint, the
landfill is sited to be protective of the health, safety and
welfare of the public. (Id. at 72-73.) Her reasoning is based
on: (1) her opinion that the “geology can be defined at the
site” and that the geology is “consistent across the site”; (2)
“the existence of this low permeability fine grain formation in
the upper subsurface”; and (3) that the expansion is a
“monitorabie site” with a groundwater monitoring system proposed
for the facility. According to the testimony of Ms. Underwood,
the monitoring system is designed based on the shape of the water
table map. It provides a series of monitoring wells that surround
the site in a downgradient direction spaced approximately 200
feet apart, and additional wells located upgradient.
Mr. Wintheiser also offered his opinion that the expansion’s
design is protective of the public health, safety and welfare
(Wintheiser Test. 9/21/93 Tr. at 89) and offered an explanation
of the design’s four major protective features: a liner system
located at the top and bottom of the landfill, a leachate
collection system, a surface water management system and a gas
management system. (9/21/93 Tr. at 76 and 89—91.) The liner
system consists of a composite liner system at the top of the
landfill and a base liner system at the bottom. The base liner
system prevents liquids that accumulate within the landfill from
leaking out through the landfill. At the bottom is 36 inches of
compacted soil. Over the top of that layer is a high density
polyethylene membrane and above the membrane is a synthetic
textile which creates a cushion layer between the leachate
collection system and the base line system. (Wintheiser Test.,
6/21/94 Tr. at 77.) Two cover systems are proposed for this site.
The first is a cover of two feet of compacted soil overlain with
a high density polyethylene geomembrane and is similar to the
composite base liner system. On top of the geomembrane is a
drainage layer, and then two and one-half feet of protective
cover soil and then, six inches of top soil. Vegetation is then
established to limit erosion. (Id. at 79.) It is intended that
precipitation is handled through the surface water management
system. (~ Tr. at 85-87.) The second type of cover system is
three feet of compacted soil overlain by two and one—half feet of
protective soil and six inches of top soil, and vegetation.
(j~
at 81.) The gas management system consists of wells drilled
vertically into the waste mass. The wells are connected by a
series of buried pipe with a connected blower which creates a
vacuum to extract the landfill gas. (Wintheiser Test. 9/21/93
Tr. at 87.) The gas, which is methane and carbon dioxide and is
generated by natural decomposition, is then burned, rather than
vented into the atmosphere. (I~at 87-88.)
Coupled with the liner system is a construction design that
prevents leakage from the landfill.
(j~ at 78.) The floor of
10
the landfill is sloped to low spots generally outside the
landfill to shed water.
The water is expected to drain out of
the waste mass, into the leachate collection system which is a
12-inch granular drainage layer (~ at 81) and within that
layer, a perimeter piping system included to increase the factor
of safety in the design
~
at
82), and stop at the barrier
liner system.
By sloping the liner system, the leachate travels
through the leachate collection system to the low spots. also
known as sumps. (~~)A larger—diameter pipe provides access to
the sump to monitor the liquid level at the base of the landfill.
A pump can be installed via the pipe to remove the
liquid.
(j~
at 82.)
Currently, the liquid is pumped up risers from the suinps
into tank trucks and hauled off-site for proper disposal. The
proposed system for the expansion includes a perimeter piping
system around the expansion area which are directly connected to
the sumps. According to Wintheiser, this provides for continuous
operation, rather than intermittent operation which takes place
when tank trucks are used. (Id. at 83.)
There will be no liquid
build-up in the sumps, although the regulations allow for 12
inches of liquid on the base of the landfill.
(j~)
From WMII, Mr. Dale Hoekstra, division president and general
manager of Settler’s Hill, testified regarding the daily
operation of the landfill in relation to
the design criterion.
(Hoekstra Test. 9/21/93 Tr. at 94.) He offered extensive
testimony describing the control mechanisms for receiving waste
into the landfill, the
ticketing systems, the landfill’s day-to-
day operations, the wet—weather and windy day operations, litter
control, police and fire protection measures, the site’s spill
prevention control, odor and vermin control, and load checking.
(Id. at 94-100.)
Mr. Hoekstra also testified that Settler’s Hill
has only been cited with a violation of the Environmental
Protection Act on one occasion in 1984 for lack of daily cover in
a small area of the facility.
(~!,. at 100.) He also testified
that the facility did receive a compliance inquiry letter in 1990
regarding its composting operations.
However, no complaint was
filed, and composting has since been discontinued.
~
at 101.)
3. The SWMP Criterion
Counties may enact Solid Waste Management Plans as long as
the plans follow the planning requirements of the Local Solid
Waste Disposal Act and the Solid Waste Planning and Recycling
Act. Kane County adopted such a plan in November of 1992.
(“SWNP”)
(City Br. at
2,
citing, City Exh.#1,
SWMP at 1.) Kane
County’s 20 year plan is
a product of two years drafting and
“substantial public participation.” (9/21/93 Tr. at 36.)
Criterion 8 of Section 39.2 authorizes the county to take
its SWMP into account when considering any proposed landfill or
landfill expansions. Specifically, such landfill decisions must
be consistent with the SWMP. (Section 39.2(a) (8) of Act.)
11
Al Maiden, a planning and zoning consultant from Rolf C.
Campbell and Associates, retained by
WNII,
testified that WMII’s
application is “consistent” with Kane County’s SWMP. He
testified that he believed the plan was intended to be “general”
(9/21/93 Tr. at 22-23) and that its overall goal is to manage the
solid waste produced within the county, primarily through the use
of facilities located therein. (Id. at 38.) He indicated that
the County’s
SWNP calls for the immediate expansion of Settler’s
Hill in Recommendation 7.1
(j~
see also City Exhibit #1,
SWMP
at 42.) Maiden also explained that the plan itself is somewhat
internally inconsistent. One portion of the plan calls for the
expansion to provide additional life of five years, and another
calls for the landfill to be open until 2010. ~
Tr. at 23 and
37-38; City Exhibit #1,
SWNP at 42 and Table 10.1.) Maiden
explained that the plan also requires that in addition to
expansion of Settler’s Hill, the County must explore new solid
waste management solutions.
Specifically the County must
initiate a new landfill site selection process with a goal of
developing a landfill by 2010. (~
Tr. at 37-38; see also City
Exh. #1, SWMP at 60.)
WMII and Kane County
indicate in their
post—hearing briefs that consistent with the SWNP, the County has
assembled an advisory committee to study and investigate the
future site of a landfill in Kane County, other than Settler’s
Hill.
(WMII Br. at 16.)
ANALYSIS
As previously stated, the Illinois siting law, sometimes
known as SB-172, provides for local approval for the siting of
all regional pollution control facilities, and expansions
thereof, in the State of Illinois. Codified at Sections 3.32,
39(c), 39.2 and 40~.lof the Act, the siting law provides that
before a permit to develop or construct a “new regional pollution
control facility” can be issued by the state permitting
authority, the Illinois Environmental Protection Agency
(“Agency”), a County board or municipal government must first
approve the siting request for each new regional pollution
control facility. (Section 39(c).) These local decisions may be
appealed to the Board. Our authority to review the landfill site
location decisions of local governments is found in Section 40.1
of the Act. The Board’s scope of review encompasses three
principal areas: (1) jurisdiction, (2) fundamental fairness of
the local government’s site approval procedures, and (3) the nine
statutory criteria for site location suitability.
Given these responsibilities,
we examine
each issue raised
by Geneva.
A. Did Kane County’s failure to strictly follow the procedural
requirements of its own landfill siting ordinance divest it
of jurisdiction to hear the application?
12
Section 39.2 of the Act places strict notice and procedural
requirements on the local siting authority considering a siting
application. These requirements have been held to be jurisdic-
tional by the state appellate courts in Illinois so that where
there has been a deviation from the statutory notice provisions,
the local government siting authority has been held to be without
jurisdiction and their decision has been overturned. (See e.ci~
Browning—Ferris Industries of Illinois, Inc. v. IPCB, 162 Ill.
App. 3d 801, 516 N.E.2d 804, 807 (5th Dist. 1987).) In the
instant case, all of the statutory procedural requirements, both
those that apply to the applicant and those that apply to Kane
County, have been met.
While all of the statutory procedural requirements were
strictly followed, the County did not strictly follow its own
procedural ordinance concerning landfill sitings. (~
discussion
of the facts, supra at 6.) While Section 39.2(g) states that the
statutory siting procedures provided for in the Act “shall be the
exclusive siting procedures,” the courts and this Board have held
that the unit of local government may develop its own siting
procedures so long as those procedures are consistent with the
Act and supplement, rather than supplant, those requirements.
(See Waste Management of Illinois v. PCB, (2nd Dist. 1988)
175
Ill. App. 3d 1023, 530 N.E.2d 682, 692—693.)
On review of the local government’s decision, Section 40.1
of the Act requires that the Board consider the fundamental
fairness of the procedures used by the local siting authority in
reaching its decision. Various IPCB decisions have therefore
analyzed local government siting procedures to determine whether
those procedures comport with the standards of fundamental
fairness. (~ Citizens for Controlled Landfills, et. al. v.
Laidlaw Waste Systems, Inc. et al., PCB 91-89 and PCB 91-90
(September 26, 1991); Gallatin National Company v. The Fulton
County
Boar.d et al., PCB 91—256 (June 15, 1992); DalY v. Village
of Robbins, PCB 93-52 and PCB 93—54 (July 1, 1992).)
In this case, Geneva does not specifically
argue that the
County’s violation of its own procedures denied it a
fundamentally fair hearing.” Instead, Geneva argues that since
those procedures were set forth in an ordinance, the County’s
failure to strictly follow its own ordinance divests it of
jurisdiction in this proceeding. Relying on zoning ordinance
caselaw, Geneva is essentially asking thatwe raise the County’s
ordinance requirements to the same jurisdictional level as the
“Indeed, since it failed to raise this issue at the
proceeding below (before the County Board), appellate caselaw
would suggest it is foreclosed for doing so now. (~
A.R.F.
Landfill v. Pollution Control Board, 528 N.E.2d at 396.
13
notice requirements found in the Act itself. (City Br. at 3—5
citing,
Ad-Ex, Inc. v. City of Chicago, 207 Ill. App. 3d 163,
565 N.E.2d 669, 152 Ill. Dec. 136 (1st Dist. 1990).) We decline
to do so.
Zoning is, for the most part, a predominantly local issue
which is not procedurally governed by state law. The Act, on the
other hand, provides a statutory scheme to standardize the
process of local government landfill siting issues. Section
39.2(g) specificially states that “local zoning or other local
land use requirements shall not be applicable” and states that
the Act alone establishes “the exclusive siting procedures and
rules and appeal procedures”.
As stated above, specific procedural requirements are set
forth in the Act which must be met before jurisdiction is
properly had by the local government entity making the landfill
siting decision. Kane County met these statutory requirements and
is required to meet no others in order to vest it with
jurisdiction to have heard and decided WMII’s application
pursuant to the Act.
The County’s failure to follow its own procedural ordinance
does not divest it of jurisdiction as a siting authority in this
case. However the procedures employed by Kane County are
reviewable pursuant to the Section 40.1 mandate that the process
used by the County in making its decision comport with standards
of fundamental fairness. We analyze that issue below.
B. Did Kane
County
conduct the local siting process on Waste
Management’s application for expansion of Settler’s Hill
Landfill in a manner fundamentally fair to the participants?
The Environmental Protection Act requires that we review the
procedures employed below by the local siting authority to deter-
mine whether they were “fundamentally fair.” (415 ILCS
5/40.1(a).) Our consideration of “fundamental fairness” is guid-
ed by parameters set forth by the second district in Waste
Management of Illinois, Inc. v. PCB, 175 Ill. App. 3d 1023, 530
N.E.2d 682 (1988):
Administrative proceedings are governed by the
fundamental principles and requirements of due process
of law. Due process is a flexible concept and requires
such procedural protections as the particular situation
demands. In an administrative hearing, due process is
satisfied by procedures that are suitable for the
nature of the determination to be made and that conform
to the fundamental principles of justice.
Furthermore, not all accepted requirements of due
process in the trial of a case are necessary at an
administrative hearing.
***
Due process requirements
14
are determined by balancing the weight of the
individual’s interest against society’s interest in
effective and efficient governmental operation. (Waste
Management of Illinois, Inc. v. PCB, 175 Ill. App. 3d
1023, 1036—37, 530 N.E.2d 682(2d Dist. 1988) (Daly v.
Village of Robbins (July 1, 1993), _PCB _,PCB 93-53
and 93—54 (cons.))
Rather than attacking individual procedures, Geneva
challenges the fundamental fairness of the landfill siting
process based on the “totality of circumstances”. Geneva argues
that, taken as a whole, Kane County was “unduly influenced” by
economic considerations in its decision to approve the landfill
expansion. (City Br. at 6.) The “bias” which allegedly tainted
the process was the County’s need to renegotiate its operating
contract for management of the landfill with WNII. Geneva
believes, after reviewing an unofficial transcription of the
August 10, 1993 closed meeting, the Kane County Board Members’
were primarily concerned with obtaining a new operating agreement
to avoid a large penalty clause and to insure an increased
revenue stream. (City Br. at 5—7)
Geneva is arguing that the “bias” here is more overt than
that which was presented to the Illinois Supreme Court in another
important landfill siting case under the Illinois siting law, ~
Hauling, Inc. v. Pollution Control Board, (1985) 107 Ill. 2d 33,
481 N.E.2d 664, 89 Ill. Dec 821 (1985). In that case, the
Illinois Supreme Court expressly stated that public officials
should be considered to act without bias. Specifically, the
Court found there was no “conflict” where the local siting
authority, who was also the site owner, received revenue from the
operation of the landfill. (E&E Hauling 481 N.E.2d at 668.)
Geneva argues that Kane County’s specific inclusion of an
“operating contract” condition’2 in its decision evidences that
Kane County’s consideration of economic factors is of greater
concern than was the E&E Hauling situation. ~ City Br. at 6.)
WMII and Kane County respond to Geneva’s allegation of bias
by asserting that a unit of local government’s consideration of
‘2The “operating contract” condition provides: No IEPA permit
shall be applied for by the County and WMII as co-applicants for
the expansion site until such time that a new and separate contract
is entered into between Kane County and WMII; such contract must be
valid and enforceable and approved by the Kane County Board. Any
new agreement between WMII and Kane County for the operation of
Settler’s Hill Landfill shall include, at a minimum, a reasonable
and appropriate host community fee for the City of Geneva,
elimination of the “put or pay” clause and shall not preclude this
agreement from being effective prior to January 11, 1994.
15
economics is appropriate. (WMII Br. at 8, citing, E&E Hauling,
481 N.E.2d at 667-668 and Fairview Area Citizens Taskforce v.
IPCB, 198 Ill. App.3d 541, 555 N.E.2d 1178, 1182 (3rd Dist.
1990); see generally County Br. at 5-8.) Kane County contends it
is its duty to “protect its citizens in a fiscally responsible
manner and adopt solid waste policies which benefit the entire
county”. (County Br. at 8.)
We are not persuaded that the local siting process was
fundamentally unfair. We are convinced that the County had the
clear authority under Illinois law to consider its own fiscal
health. (Fairview Area Citizens Taskforce, 555 N.E.2d at 1182.)
The fact that Kane County may have considered economics resulting
in the “operating contract” condition, does not render the whole
process fundamentally unfair. The County Board’s interest in the
fiscal well-being of the County in relation to the operating
contract appears to be of the same type of consideration
important to the Illinois Supreme Court when it ruled that no
bias existed in E&E Hauling. The Court stated that:
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 governmen-
tal 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. (E&E Hauling, 481 N.E.2d at 667—668 (emphasis
added.)
Because it is appropriate for the county board to take into
account the fiscal considerations of the county, we find that the
inclusion of the “operating contract” condition or any requisite
“renegotiation” does not so taint the siting process as to render
it fundamentally unfair. Nothing in the county record (or
outside the county record’3) demonstrates that Kane County’s
consideration of economics or its concern with renegotiating the
operating contract agreement with WMII curbed due process rights
of any of the participants, including Geneva.
we review issues of fundamental fairness, the Illinois
Supreme Court has affirmed that the Board may look beyond the
actual county record and accept evidence concerning fundamental
fairness at the PCB hearing to avoid an unjust or absurd result.
(E&E Hauling, Inc. v. PCB, 116 Ill.App.3d 587, 594, 451 N.E.2d
555 (2d Dist. 1983), aff’d in part 107 Ill.2d 33, 481 N.E.2d 664
(1985)
16
Therefore, we now turn to each of the three statutory
criteria challenged by Geneva.
C. Are
Kane County’s decisions on the three challenged
statutory criteria against the manifest weight of the
evidence?
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. v.
Pollution Control Board (1987), 160 Ill.App.3d 434 (112 Ill.Dec.
178, 513 N.E.2d 592; See also City of Rockford v. Pollution
Control Board (1984), 125 Ill.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, 115
Ill.App.3d 762, 451 N.E.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. IPCB and Frink’s Industrial
Waste, 125 Ill.App.3d 384, 465 N.E.2d 996 (2d Dist. 1984); Waste
Management of Illinois. Inc. v. IPCB, 22 Ill.App.3d 639, 461
N.E.2d 542 (3d Dist. 1984); Steinberg v. Petta, 139 Ill.App.3d
503, 487 N.E.2d 1064 (1st Dist. 1985); Willowbrook Motel v. PCB,
135 I1l.App.3d 343, 481 N.E.2d 1032 (1st Dist. 1985).
1. Was Kane County’s finding that the landfill expansion is
necessary to accommodate the waste needs of the area it is
intended to serve against the manifest weight of the
evidence?
Section 39.2(a) (1) 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), 541 N.E.2d 844, 846; A.R.F. Landfill v. Pollution Control
Board (2d Dist. 1988), 528 N.E.2d 390, 396; WMII v. Pollution
Control Board (3d Dist. 1984), 461 N.E.2d 542,546.) The Third
District has construed “necessary” as connoting a “degree of
requirement or essentially.” (WNII 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 Dist. 1988), 530 N.E.2d 682, 689;
A.R.F. Landfill v. Pollution Control Board, 528 N.E.2d at 396;
WMII v. Pollution Control Board,(2d Dist. 1984), 463 N.E.2d 969,
976.) The First District has stated that these differing terms
merely evince the use of different phraseology rather than
17
advancing substantively different
definitions of need.
(Industrial Fuels & Resources/Illinois, Inc. v. Pollution Control
Board, (1st Dist. 1992), 227 Ill. App.3d 533, 592 N.E2d 148,
156.)
In Ordinance No. 94-19 on January 11, 1994, Kane County
found that the facility is necessary to accommodate the waste
needs of the area it is intended to serve, subject to the
following condition:
Waste Management will be limited to accepting waste
permitted by the Illinois Environmental Protection Agency.
(C—3321.)
Geneva asserts that Kane County erred in concluding that the
facility is necessary to accommodate the waste needs of the
intended service area. In so doing, Geneva relies on a report by
the American Environmental Sciences and Technology, Inc.
(“AESTI”) (C-2940), an independent consultant hired by the County
to review the siting application. The AESTI report disputes the
reasoning in the needs analysis performed by Rolf C. Campbell and
Associates, Inc. (C-25), submitted by WMII as part of its siting
application. However, the AESTI report reaches the same
conclusion after performing its own analysis using different
assumptions. Geneva agrees with the AESTI report in disputing
the accuracy of WMII’s assumptions, but disagrees with AESTI’s
conclusion that there is a need for the facility, arguing that
AESTI’s reasoning is flawed as well.
As a preliminary matter, WMII asserts that the AESTI report,
as well as four other expert reports, were improperly included in
the record, since they were submitted as public comments and were
not submitted under oath or subject to cross—examination. WMII
asserts that they should have been subject to the limitations on
expert testimony contained
in Kane County Ordinance 93-85, which
establishes procedural rules governing Regional Pollution Control
Facility sitings. Section III,
paragraph C of this ordinance
provides that preliminary reports prepared by experts or
consultants retained by the County summarizing and analyzing the
petition must be filed with the Clerk no later than seven days in
advance of the date set for hearing.
(C-3395.)
WMII
asserts
that it was improper for the reports to have been submitted
during the public comment period following the hearing before the
Kane County Board.
WNII
made this objection in a public comment
submitted on November 8, 1993 (C-2988
-
3001), and renewed it in
its post-hearing brief.
We find that it was not improper for Kane County to accept
the contested reports as public comments.
As public comments,
the reports are not entitled to the same weight as expert
testimony submitted under oath and subject to cross—examination,
but are instead entitled to the lesser weight given to all public
18
comments. (Industrial Fuels and Resources v. City Council of the
City of Harvey (September 27, l990)_PCB_, PCB 90-53, slip op.
at 5.) V~ believe that the members of the Kane County Board
could ma this distinction and give the reports appropriate
consideration.
WMII’a Needs Assessment
WMII submitted the Campbell Report as part of its siting
application in order to demonstrate that there is a need for the
proposed expansion. The Campbell Report concludes that there is
insufficient disposal capacity to meet the waste disposal needs
of the service area beyond the year 2003, and that it is
therefore necessary to develop additional waste disposal capacity
in the service area. (R. at C39.) The report concludes that the
proposed expansion of the Settler’s Hill facility will meet the
disposal needs of Kane County until 2012. Furthermore, Will
Flower of Waste Management testified and was subject to cross—
examination at the September 21 and 23, 1993 hearings concerning
the need for the proposed expansion as demonstrated in the
Campbell report. (9/21/93 Tr. at 57-62.)
In reaching its conclusions, the Campbell report analyzes
the population, waste generation, recycling and disposal trends,
and the existing permitted landfill capacity in the service area.
It relies upon information contained in the Solid Waste
Management Plan of Kane County and surrounding counties,
including DuPage, Lake, McHenry, Will and parts of Cook County;
the Agency reports “Available Disposal Capacity for Solid Waste
in Illinois (Annual Reports 1-6)”; and current capacities and
projected future capacities of landfills in the service area.
j~
The AESTI Report
The AESTI report criticizes several of the assumptions made
in the Campbell report, including its failure to: 1) clearly and
consistently define “gate yard”; 2) explain its assumptions
concerning population of the service area; 3) consider the impact
of the closing of the Woodland landfill; and consider the impact
on the service area of activities in adjacent counties. AESTI
also disputes the Campbell report’s waste stream projections for
the service area of the proposed expansion. AESTI then
reexamines the data using different assumptions, but ultimately
concludes that there is a need for the proposed expansion in
order to avoid the “unacceptable risk that adequate disposal
capacity will not exist around the year 2000.” (See AESTI report
at 2—4, C—2956.)
Geneva agrees with the AESTI report’s critique of the
Campbell report, but criticizes the AESTI report for concluding
that the expansion is necessary, since AESTI report indicates
that Settler’s Hill Landfill would not exhaust its existing
19
capacity until sometime between 2000 and 2007, while a new
landfill could potentially be sited by 2000. The City argues
that this indicates that a new facility could be sited prior to
the point at which existing capacity would be exhausted, and that
therefore there is no need for the proposed expansion.
We find that Kane County was justified in finding that there
was a demonstrated need for the proposed facility. The County
could have credited the Campbell report and the testimony of Will
Flower, both of which indicate that there was a need for the
facility.
Furthermore, even if the County credited the AESTI
report, which was not subject to cross—examination, that report
also concludes that there was a need for the facility.
It was
not necessary for the County to find that there was an absolute
need for the facility. It would be sufficient if the County
agreed that the expansion was necessary to avoid an unacceptable
risk that adequate disposal capacity will not be available.
Furthermore, there is no requirement that the County favor the
siting of a new facility over expansion of the Settler’s Hill
facility in meeting the projected need.
We find that the County’s conclusion that the proposed
expansion is necessary in order to meet the waste disposal needs
of the intended service area was supported by ample evidence in
the record, and was therefore not against the manifest weight of
the evidence.
2. Was Kane County’s finding that the landfill expansion is so
designed, located and proposed to be operated so that the
public health, safety and welfare will be protected against
the manifest weight of the evidence?
The design criterion of Section 39.2 of the Act requires the
applicant to demonstrate and the local siting authority to find
that “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(a)(2).)” In its siting approval,
Kane County found that the facility was designed so as to protect
the public health, safety, and welfare.
Geneva disputes this finding, asserting that the application
inadequately characterizes the hydrogeological conditions of the
site, and that the application failed to address the impact of
the proposed expansion on airport safety as required by 40 C.F.R.
258.10(a) and 35 Ill. Adm. Code 811.302(e). Geneva relies on two
reports, a report by Dr. Nolan Aughenbaugh (C-2969), and the
AESTI report (C-2940), in asserting that the County erred in
finding that the proposed expansion satisfied criterion 2. These
reports were submitted into the record before the County Board as
public comments; they were not submitted under oath or subject to
cross—examination.
20
As preliminary matter,
WMII
asserts that these reports were
improperly included in the record, in that they should have been
subject to the limitations on expert testimony contained in Kane
County Ordinance 93-85, which establishes procedural rules
governing Regional Pollution Control Facility sitings. Section
III, paragraph C of this ordinance provides that preliminary
reports prepared by experts or consultants retained by the County
summarizing and analyzing the petition shall be filed with the
Clerk no later than seven days in advance of the date set for
hearing. (C-3395.) WMII asserts that it was improper for these
reports to have been submitted during the public comment period
following the hearing before the Kane County Board. WNII made
this objection in a public comment submitted on November 8, 1993
(C-2988
-
C-3001), and renewed it in its post-hearing brief.
For the reasons stated on page 19 above, we again find that
it was not improper for Kane County to accept the contested
reports as public comments.
Hydrogeology
Geneva relies on the report of Dr. Aughenbaugh in raising
the following issues concerning the hydrogeology of the site.
First, there was a lack of “essential information” regarding the
closed Midway Landfill. Second, the applicant failed to address
the proximity of the St. Charles Aquifer. Third, the application
ignores data contained in the application’s boring logs which
show that silt and gravel are located four to five feet below the
bottom of the landfill’s liner. Geneva also relies on the AESTI
Report in asserting that WNII’s hydrogeological interpretation
was deficient, also asserting that there may have been leakage
from the existing landfill.
WMII included in its application a complete hydrogeological
assessment of the proposed site performed by RUST Environment and
Infrastructure
(RUST).
(See Siting Application Criteria 2.) At
hearing, Joan Underwood of RUST testified that, from a
hydrogeologic and geologic standpoint, the facility is sited so
as to be protective of the public health safety and welfare.
(September 21, 1993 Tr. at 72-73.) Additionally, Paul Wintheiser
of RUST testified that the landfill expansion is designed so as
to protect the public health, safety, and welfare. Both
witnesses provided detailed explanations for their opinions in
their testimony on September 21 and 23, 1993.
Furthermore, WMII
responded to the issues raised in the Aughenbaugh and AESTI
reports in its public comment filed on November 8, 1993. (R. at
C2984.) This filing details where the deficiencies alleged in
the two reports were addressed, whether in the record or at
hearing.
We find that the
County Board was justified in crediting the
information contained in the siting application and the testimony
21
offered by WMII’s expert witnesses, while refusing to credit the
objections raised by the conflicting reports. The decisionmaking
authority rests solely with the local government. A local
government’s consultant report is not binding on the
decisionmaker. (McLean County Disposal Company, Inc. v. The
County of McLean, PCB 89-108, 105 PCB 203, 207 (November 15,
1989).) The County may well have afforded lesser weight to the
reports disputing the accuracy of WMII’s hydrogeological
classification because they were submitted as public comments not
subject to cross—examination, and because WMII responded to the
criticisms on the record. Therefore, we find that Kane County’s
decision finding that the site would be designed and constructed
so as to protect the public health, safety and welfare from
threats posed by groundwater contamination was not against the
manifest weight of the evidence.
Airport Safety
Geneva asserts that WMII
improperly failed to address the
impact of the proposed expansion on airport safety, as required
by 40 CFR 258.10(a) and 35 Ill. Adm. Code 814.302(c) relying
again on the AESTI report. Geneva argues that this assessment is
necessary because of the proximity of the landfill site to the
DuPage County Regional Airport. Geneva claims that without
making such a demonstration, the County could not have found that
the site was so designed, located and proposed to be operated
that the public health, safety and welfare will be protected.
WNII asserts that this is an issue which is not properly
addressed during the siting process.
The Board agrees with WMII that this is a permitting issue,
and that it is not necessary for WHII to make this showing at
this time. The Board believes that a local decisionmaker is free
to place some reliance on the Agency’s permit review process.
(Citizens Against Regional Landfill v. The County Board of
Whiteside County (February 25, 1993) PCB 92-156, 139 PCB 523,
541.) While a local decisionmaker is empowered to consider any
and all highly technical details of landfill design and
construction, it is not necessary for the local decisionmakers to
examine each request for siting approval so as to ensure
compliance with every applicable regulation.
(~~ c.f. Waste
Management of Illinois,
Inc. v. Illinois Pollution Control Board
(2d Dist. 1987), 160 Ill. App.3d 89, 457 N.E.2d 372, 380—381.)
Siting a new RPCF is a two-step process, requiring siting
approval from the local decisionmaker and permit approval from
the Agency. The local decisionmaker is not required to perform
both functions. (Id.)
We believe that ensuring compliance with the regulations
concerning bird hazards posed to airports is a consideration Kane
County could properly leave to the Agency.
Thus, Kane County
could properly find that the facility is so designed, located and
22
proposed to be operated that the public health, safety and
welfare will be protected, while relying on the Agency to ensure
compliance with this regulation.
In sum, we find that Kane County’s decision that the
facility is so designed, located and proposed to be operated that
the public health, safety and welfare will be protected is not
against the manifest weight of the evidence.
3.
Was Kane County’s finding that the landfill expansion is
consistent with Kane County’s Solid Waste Management Plan
against the manifest weight of the evidence?
Section 39.2(a) (8) of the Act requires that if a county
board has adopted a solid waste management plan that the proposed
facility being considered by the county be consistent with the
plan. (415 ILCS 5/39.2(a)(8).) In Kane County’s approval of
WH1I’s application, the County found that the expansion of
Settler’s Hill Landfill was consistent with the SWMP adopted in
1992. (C—3319—C—3324.)
Geneva contends the proposed expansion is not consistent
with the
SWNP.
Geneva argues that by granting the siting
approval, the County has delayed the selection and development of
a new landfill site within the County until a date beyond the end
of the
SWNP
planning period and that the expansion approval
allows Settler’s Hill to remain in operation after the capacity
period determined in the SWNP. (City Br. at 11.)
As with the other criteria, whether the county board’s
siting approval is to be affirmed, the decision is tested
under
the manifest weight standard. The standard is satisfied as long
as an opposite conclusion is not clearly evident, plain or
indisputable. (Worthen. et. al. v. Village of Roxana, et al.
(5th Dist. January 18, 1994) No. 5—91—0807, slip op. at 9.) To
satisfy the “plan criteria”, the county board must apply the SWMP
to the proposed facility and make a determination whether the
application is drafted in such a way as to be “consistent.”
The SWMP calls for an expansion of Settler’s Hill Landfill
to add an additional five years of site life and it establishes a
priority of planning and developing a new landfill in Kane
County. We find, as did the County, that WMII’s application for
a proposed expansion, calling for an expansion of an additional
8.96 years, is consistent with the SWNP. There is no requirement
in Section 39.2(a) (8) that the SWMP be followed to the letter.
It is within the County’s purview to determine “consistency” on a
specific circumstance as raised herein; it is the County who is
responsible for drafting the plan. So long as the approval is not
inapposite of the SWMP, (e.g., the SWNP calls for closure, and
the siting decision expands the landfill for an additional 20
years) determining consistency is within the realm of the
23
County’s decision-making power under Illinois’
landfill siting
law. (Worthen, slip op. at 12.)
D. Is
Geneva
entitled to “alternative relief” by adding a
condition to the Kane County landfill siting decision
requiring WMII to seek siting approval from Geneva?
Geneva has asked the Board to grant alternative relief even
if we find Kane County’s decision otherwise supportable. The City
requests that we place a condition in Kane County’s siting
decision requiring WNII to seek local siting approval from
Geneva prior to applying for a development or construction permit
from the Agency. (City Br. at 12-19.) Geneva argues that the
“new regional pollution control facility” at issue in this case
encompasses not only the proposed expansion area, but the entire
landfill site, including the facility as originally sited in
1982, and as expanded in 1986. (City Br. at 15, citing, Section
3.32(b) (1).) Geneva also argues that as provided in the original
siting of the landfill in 1982, which landfill is still “open”,
the access roads and the entry gate to the landfill, are within
the corporate limits of Geneva and are integral to the proposed
expansion. Therefore, by their very nature, they are a part of
the new regional pollution control facility. (City Br. at 16.)
Kane County and WMII counter that the “new regional
pollution control facility” at issue in this case can only be the
area of expansion being added to the “currently permitted
facility.” (See WNII Br. at 22) Because the proposed expansion
area is solely within unincorporated Kane County, both
respondents assert that Kane County is the exclusive jurisdiction
from which WMII must seek siting approval prior to submitting its
permit application to the Agency. (See generally WNII Br. at 15—
35; County Br. at 11-16.) Kane County is concerned that if we
were to find that the the new regional pollution control facility
is the entire landfill site, then under Section 39(c), the whole
of Settler’s Hill Landfill will be then be subject to the local
siting process. (See generally County Br. at 15-16.) WNII also
argues that Geneva’s jurisdiction terminated once it gave siting
approval in 1982 and WMII seems to further suggest that without
jurisdiction, Geneva has no continuing interest in the landfill
or any future expansion. (See generally WNII Br. at 26-31.) WMII
further asserts that Geneva waived any opportunity to exercise
jurisdiction in this matter, because the City failed to assert
jurisdiction when WNII applied for and was granted an expansion
of Settler’s Hill in 1986. (See generally WMII Br. at 17—19.)
Geneva’s request for “alternative relief” is denied. Geneva
has failed to cite the Board to any authority for the novel
proposition that the Board may add conditions to any local siting
approval. Such action would be inconsistent with the Board’s
role as reviewing body in SB172 cases. (See cases cited at p. 17,
supra). Our duty is to review the local government decision, as
24
written, and to affirm or reverse, not to rewrite it by adding
conditions.
The question of whether additional siting approvals are or
are not needed by Settler’s Hill prior to expansion is not
properly before the Board in this proceeding.
There has been no
dispute that Kane County’s approval is needed, and this appeal
may properly challenge only the merits of its decision and
decisionmaking process.
The Board in closing reminds the parties that it has
previously determined that a municipality may not “decline to
exercise jurisdiction” or defer its decisionmaking duty to the
county. A.R.F. Landfill v. Village of Round Lake Park and Lake
County (July 16, 1987) 79 PCB 92 at 100—101, PCB 87-34, citing
E & E Hauling, Inc. v. Pollution Control Board, 116 Ill. App. 3d
586, 451 N.E.2d 555, 567 (2d Dist. 1983), aff’d. 107 Ill. 2d 33,
481 N.E.2d 664 (1985).
The Agency will determine pursuant to
Section 39(c) whether it has received evidence of necessary
approvals when and if WMII files an application for expansion of
Settler’s Hill. If the Agency should determine that any
approvals are lacking,
WMII
may challenge such determination in a
permit appeal. See, e.g. Chemical Waste Management v. IEPA (July
21, 1994), PCB 94-153 (order on summary judgment)
Questions of authority aside, nothing the Board might add to
the Kane County decision could supplant the requirements of
Section 39(c) of the Act. Section 39(c) requires that when
submitting a permit application for the development or
construction of a new regional pollution control facility to the
Agency, the permittee (here, WMII) must also show proof that the
location of the facility has been approved by the county board or
the governing body of
the municipality, depending on whether the
landfill is located in an unincorporated or incorporated area.
(415 ILCS 5/39(c).)
The legislative history of the “SB 172” law clearly explains
that the legislature envisioned some instances of “concurrent
jurisdiction” under the law even though the specific statutory
language provided for either the county or the municipality
giving the siting approval.
On July 1, 1981, Representative Peg
Breslin,
the House sponsor of the SB—172 bill, explained that
permittees
must before getting a permit from the
EPA, first secure
the permit from the county or the local unit of
government in which they lie. If they lie totally
within a municipality then they get it from the
municipality, if they lie in the county, in the
unincorporated area they get the permission from the
county, if they overlap they get it from both. And
this must be granted prior to the EPA going ahead with
25
its siting approval. (Conference Committee Report, #1,
82nd General Assembly, House of Representatives, July
1, 1981 at 191—92.)
CONCLUSION
Kane County’s decision granting siting approval to expand
the Settler’s Hill Landfill is affirmed in its entirety. In so
holding, the Board has determined that the local siting
procedures are not the equivalent of the jurisdictional notice
requirements set forth in Section 39.2(b) of the Act. We have
also reaffirmed that local governments may take into account
economic considerations such as the placement of an
administrative condition in a siting decision requiring the
renegotiation of, an operating agreement. Such action does not
infringe upon the participants due process rights and thus, does
not render a local siting process unfair.
We have also found that under the manifest weight of
evidence standard of review, Kane County’s decision is supported
by the record as to the challenged criteria (“need”, “design” and
“SWMP” criteria). Finally, we have found that the question of
whether Geneva is a proper siting authority is prematurely before
us and we have declined to add a condition to Kane County’s
siting approval requiring WMII to file an application for siting
approval with the City of Geneva. We believe the issue of
whether Geneva holds “concurrent” siting authority is not
properly before us, and Section 39(c) of the Act requires the
Agency to determine WNII obtained all the appropriate local
siting approvals during the Agency’s review of WMII’s application
for a development/construction permit.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The January 11, 1994 decision of Kane County granting
approval to Waste Management of Illinois to expand Settler’s Hill
Landfill is hereby affirmed.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the,~bov~opinion and order were
adopted on thec~/.’~’day of
______________,
1994, by a vote of
~
~
/,~
Dorothy N. ,~inn, Clerk
Illinois P6Xlution Control Board
