ILLINOIS POLLUTION CONTROL BOARD

September

9,

1993

RICHARD

WORTHEN,

CLARENCE

BOHN,

HARRY

PARKER,

GEORGE

ARNO~LD, CITY OF EDWARDSVILLE,

)

CITY OF TROY,

 VILLAGE OF

)

MARYVILLE,

 and VILLAGE OF

)

GLEN

CARBON,

)

Petitioners,

)

v.

)

 PCB 90—137

)

 (Landfill Siting

VILLAGE

ROXANA

and

)

 Review)

LAIDLAW

WASTE

SYSTEMS

)

(MADISON),

INC.

)

Respondents.

OPINION

AND

ORDER OF THE BOARD

 (by J. Theodore Meyer):

This matter is before the Board on a remand order from the

appellate court.

 This proceeding was originally begun by a July

23,

 1990 petition for hearing to contest the June 18,

1990

decision of respondent the Village of Roxana

 (Roxana).

Petitioners Richard Worthen, Clarence Bohm, Harry Parker, George

Arnold, the City of Edwardsville, the City of Troy, the Village

of Marysville,

 and the Village of Glen Carbon

 (collectively,

petitioners) ask this Board to review Roxana’s decision granting

 site approval to respondent Laidlaw Waste Systems

 (Madison),

 Inc.

(Laidlaw)

 for expansion of its Cahokia Road landfill.

PROCEDURAL HISTORY

The Board originally issued its final decision in this

landfill siting appeal on November 29,

 1990.

 On January

3,

 1991,

the Board received Laidlaw’s notice of appeal to the appellate

court.

 The appellate court issued its decision on June 18,

 1992,

reversing the Board’s decision and remanding the matter to the

Board.

 (Laidlaw Waste Systems

 (Madison),

 Inc.

 v. Pollution

Control Board

 (5th Dist.

 1992),

 230 Ill.App.3d 132,

 595 N.E.2d

600,

 172 Ill.Dec. 239.)

 The individuals and municipalities who

were petitioners before the Board filed a petition for leave to

appeal with the supreme court.

 That petition was denied by the

supreme court in September 1992.

 The Board received the

appellate court’s mandate on November 9,

 1992.

On January 21,

 1993,

 in response to the appellate court

decision, the Board remanded this case to Roxana for a

determination of whether the application for siting approval at

issue in this proceeding is “substantially the

same” as

a

previous application filed

in

 1987.

 On March

8,

 1993,

 Roxana

filed

 its resolution and findings of fact,

 determining that the

2

two applications are not substantially the same.

 The Board then

established

 a supplemental briefing schedule to allow the parties

to supplement their original briefs.

 These supplemental briefs

were limited to the issue of whether the two applications are

substantially the same.

 Briefing is now complete, and the Board

must proceed to decide those issues which were not previously

decided in our November 29,

 1990 opinion and order.

STATUTORY

FRAMEWORK

At the local

 level,

 the siting process

 is governed by

Section 39.2 of the Environmental Protection Act

 (Act).

 (415

ILCS 5/39.2

 (1992).)

 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 be considered when ruling

on an application for siting approval.

 Only if the local body

finds that all applicable criteria have been met by the applicant

can siting approval be granted.

When reviewing a local decision on the criteria, this Board

must determine whether the local decision is against the manifest

weight of the evidence.

 (McLean County Disposal,

 Inc.

v.

 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

& E

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.)

 A decision is against the manifest weight

of the evidence if the opposite result is clearly evident, plain,

or indisputable from a review of the evidence.

 (Harris v. Day

(4th Dist.

 1983),

 115 Ill.App.3d 762,

 451 N.E.2d 262,

 265.)

The

Board,

 on review,

 is not to reweigh the evidence.

 Where there is

conflicting evidence,

 the Board is not free to reverse merely

because

the

lower

 tribunal credits one group of witnesses and

does

not

credit

the

other.

(Fairview

Area

Citizens

Taskforce

Pollution

Control

Board

(3d

Dist.

1990),

198

Ill.App.3d

541,

555

N.E.2d

1178,

1184;

Tate

Pollution

Control

Board

(4th

Dist.

1989),

188

Ill.App.3d

994,

544

N.E.2d

1176,

1195;

Waste

Management of Illinois,

 Inc.

 v. Pollution Control Board

 (2d Dist.

1989),

187

Ill.App.3d

79,

543

N.E.2d

505,

507.)

Merely

because

the

local

government

 could have drawn different inferences and

conclusions from conflicting testimony is not a basis for this

Board to reverse the local government’s findings.

 File v.

D

& L

Landfill,

 Inc.,

 PCB 90—94

 (August 30,

 1990),

 aff’d File v.

D

& L

Landfill,

Inc.

(5th

Dist.

1991),

219

I1l.App.3d

897,

579

N.E.2d

1228.

 However, where

applicant

made

prima

facie

showing

to each criterion and no contradicting or impeaching evidence was

offered to rebut that showing,

 a local government’s finding that

several criteria had not been satisfied was against the manifest

weight of the evidence.

 (Industrial Fuels

 & Resources/Illinois,

Inc.

Pollution

Control

Board

(1st

Dist.

1992),

227

Ill.App.3d

533,

 592 N.E.2d 148.)

Additionally, the Board must review the areas of

jurisdiction 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

 & E Hauling,

 451 N.E.2d at 562.)

JURISDICTION

In our November 1990 opinion and order, the Board reversed

Roxana’s decision granting site approval to Laidlaw for expansion

of Laidlaw’s Cahokia Road landfill.

 The Board found that because

Laidlaw’s 1990 application for siting approval had been filed

within two years of the disapproval of a previous 1987

application which was substantially the same as the 1990

application, Roxana had no jurisdiction to consider the

application pursuant to Section 39.2(m)

 of the Environmental

Protection Act.

 That subsection states:

An applicant may not file a request for local siting

approval which is substantially the same as a request

which was disapproved pursuant to~afinding against the

applicant under any of criteria

 (i) through

 (ix)

of

subsection

(a)

 of this Section within the proceeding

2

years.

 (Ill.Rev.Stat.

 1989,

ch.

 111½, par. 1039.2(m),

 now codified at 415 ILCS 5/39.2(m)

 (1992).)

The appellate court reversed the Board’s decision and

remanded the case to the Board.

 The court upheld the Board’s

finding that the two-year period referred to in Section 39.2(m)

begins to run as of the disapproval of a previous application.

(Laidlaw,

 595 N.E.2d at 602—603.)

 However, the appellate court

overturned the Board’s finding that the two applications in this

case were “substantially the same.”

 The court construed the

Board’s decision as stating that where two applications for local

siting approval seek approval for expansion of the same facility,

those facilities are “substantially the same.”

 The court

rejected such a conclusion, and remanded the case to the Board.

(Laidlaw,

 595 N.E.2d at 603—605.)

As noted above, the Board then remanded the proceeding to

Roxana.

 The Board found,

 after reviewing the appellate court

decision, that the issue of whether an application is

“substantially the same” as a previous application is a question

of fact that must be determined by the local decisioninaker.

(Worthen v. Village

 of Roxana

 (January 21,

 1993), PCB 90-137.)

Roxana subsequently filed

 a resolution and findings of fact,

in

which Roxana concluded that the two applications are not

“substantially the same”.

 Petitioners have challenged that

conclusion.

 If the two applications are “substantially the

 same”, Roxana

 lacked jurisdiction to consider the 1990

4

application, because

 it was filed less than two years after the

disapproval of the 1987 request.

“Substantially

the

Same”

The appellate court found that when considering the issue of

“substantially the same”,

 “the two applications must be reviewed

as

 a whole,

 considering the criteria of section 39.2(a), to

determine whether there are sufficient significant differences

between them that they do not constitute applications which are

substantially the same.”

 (Laidlaw,

 595 N.E.2d at 604.)

 Roxana’s

March

1,

 1993 findings of fact analyze the two applications by

applying each of the applicable criteria.

 Roxana found

significant differences between the two applications in six of

the nine criteria,

 and found that the other three criteria are

not applicable to the applications.

 Thus, Roxana found that

reviewed as a whole, there are sufficient significant differences

between the two applications that they are not substantially the

same.

 (Roxana Findings of Fact at 3—8.)

Petitioners contend that the two requests are substantially

the same on criteria one and six.

 Criterion one asks whether the

proposed facility is necessary to accommodate the waste needs of

the area it

 is intended to serve.

 Petitioners argue that because

both applications involve the same site and include Madison

County as the “principal” service area, the two applications are

substantially the same as to criterion one.

 As to criterion six,

which relates to traffic patterns to and from the proposed

facility, petitioners maintain that the traffic study performed

in support of the 1990 application was done only four months

after the 1987 application was denied.

 Petitioners note that the

phrase “substantially the same” has not been previously

interpreted by the Board or the courts, but contend that because

the legislature included the word “substantially”, the

legislature must have intended that an application did not have

to be identical in order to be barred under Section 39.2(m).

Petitioners argue that interpreting “substantially the same” to

mean identical would render Section 39.2(m)

 meaningless, and

allow an applicant to side-step that subsection by changing a few

details.

In response, Laidlaw first states that because Roxana’s

determination on the issue of “substantially the same”

 is a

finding of fact, that finding must be reviewed under the manifest

weight of the evidence standard.

 Laidlaw contends that under

that manifest weight standard, Roxana’s findings of fact must be

affirmed.

 Laidlaw notes that petitioners only argue that the

application is substantially similar in two of the nine criteria.

Thus,

 Laidlaw maintains that applying the appellate court’s

 decision that the applications must be analyzed by considering

all of the criteria, petitioners’ own brief suggests that the two

applications are not substantially the same.

The Board first notes that Laidlaw correctly states that

Roxana’s decision on this issue can only be reviewed under a

manifest weight

 of the evidence standard.

 We have construed the

appellate court’s decision as finding that the issue of whether

two applications are substantially the same

 is a question of fact

to be determined by the local decisionmaker.

 The appellate court

reiterated previous appellate decisions finding that this Board,

in reviewing the factual determinations of a local decisionmaker,

can only determine whether thos~.findings are against the

manifest weight of the evidence.

 (Laidlaw,

 595 N.E.2d at 603—

604.)

We agree with petitioners that an application does not have

to be identical to an earlier application in order to be barred

under Section 39.2(m).

 However, after reviewing the record and

the parties’ arguments, the Board finds that Roxana’s decision,

that the two applications are not substantially the same,

 is not

against the manifest weight of the evidence.

 Roxana analyzed the

two applications by applying all six of the criteria which it

found to be applicable,

 and concluded that the two applications

were not substantially the same within the context of each of

 those criteria.

 For example, as to criterion one, Roxana found

that the 1990 application identified a different service area

than the 1987 application, that the 1990 application proposes a

94—acre expansion instead of the 154—acre expansion proposed by

the 1987 application, and that the 1990 application offered

greater documentation of need than that 1987 application.

(Roxana Findings of Fact at 3-4.)

 Likewise,

 as to criterion

three, Roxana found that the 1987 application contained no

analysis of the value of the surrounding property, while the 1990

application included a real estate valuation study detailing

sales prices near the existing landfill with comparable sales

elsewhere in the county,

 as well as a detailed description of the

character of the surrounding area——something not included in the

1987 application.

 (Roxana Findings of Fact at 5-6.)

 Roxana also

analyzed the two applications as to the other four applicable

criteria.

 (Roxana Findings of Fact at 3-8.)

 Roxana concluded

that because there are significant differences between the two

applications in all of the six applicable criteria, the two

applications are not “substantially the same”.

 (Roxana Findings

of Fact at

8.)

Petitioners do not argue that any of the factual differences

noted in Roxana’s findings of fact are incorrect,

 or that

Roxana’s conclusion that the applications are not substantially

The Board notes that the dissenting justice in the

 appellate court believed that no manifest weight questions were

posed by the appeal, but that the issue of “substantially the

same”

is

 a question of law.

 (Laidlaw,

 595 N.E.2d at 605.)

the same

 is against the manifest weight of the evidence.

 Indeed,

petitioners only contend that the applications are substantially

the same within the context of two of the six applicable

criteria.

 Even if the Board were to find, which it does not,

that Roxana’s findings of fact as to criteria one and six were

against the manifest weight of the evidence, Roxana’s decision

that the applications are not substantially the same as to the

other four criteria would be left standing.

 In sum, we do not

find that Roxana’s decision on this issue was against the

manifest weight of the evidence.

 A decision is against the

manifest weight of the evidence only

 if the opposite result is

clearly evident, plain, or indisputable from a review of the

evidence.

 (Harris,

 451 N.E.2d at 265.)

 The Board does not find

that

 it is indisputable that the two applications are

substantially the same.

 Therefore, we must uphold Roxana’s

conclusion.

FUNDAMENTAL FAIRNESS

Section

 40.1 of the Act requires the Board to review the

proceedings

before

the

local

decisionmaker

assure

fundamental

fairness.

 In E

 & E Hauling, 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.

(E

 & E Hauling,

451

N.E.2d at 564;

 see also FACT, 555 N.E.2d at 661.)

 Due process

requires that parties have an opportunity to cross—examine

witnesses, but that requirement

 is not without limits.

Due

process requirements are determined by balancing the weight of

the individual’s interest against society’s interest in effective

and efficient governmental operation.

 (Waste Management of

Illinois Inc.

v.

 Pollution Control Board

 (2d Dist.

 1988),

175

Ill.App.3d 1023,

 530 N.E.2d 682,

 693.)

 The manner in which the

hearing is conducted,

 the opportunity to be heard,

 the existence

of ex parte contacts, prejudgment of adjudicative facts,

 and the

introduction of evidence are important,

 but not rigid,

 elements

in assessing fundamental fairness.

 (Hediger v.

D

 & L Landfill,

Inc.

 (December 20,

 1990)

PCB

90—163.)

Bias and Conflict of

 Interest of Hearing Officer

Petitioners contend that they were denied fundamental

fairness because the hearing officer who conducted the local

siting hearing had been involved in Roxana’s annexation of the

landfill site.

 Petitioners state that the hearing officer,

Thomas

Immel,

 also gave Roxana legal advice up to the time of the

local hearing.

 Thus, petitioners maintain that the hearing

officer had a conflict of interest between his duty to Roxana as

his client and his duty to the public to serve as

 a fair and

impartial hearing officer.

 Petitioners cite several instances in

7

support of their claim that the hearing officer was biased.

For

example,

 petitioners state that the hearing officer suggested

that petitioners argue a motion to dismiss the application before

arguing a motion to remove the hearing officer.

 Petitioners

maintain that if they had done

 so, they would have waived their

right to seek removal of the hearing officer.

In response, Laidlaw notes that petitioners do not claim

that Roxana itself,

 as opposed to the hearing officer, was biased

or predisposed to find against the petitioners.

 Laidlaw states

that the appellate courts have held that the existence of a

 preannexation agreement, with

 a potential economic benefit to a

village, does not show predisposition of a local decisionmaker.

(FACT,

 555 N.E.2d 1178; Woodsmoke Resorts,

 Inc.

 v. City of

Marseilles

 (3d Dist.

 1988),

 174 Ill.App.3d 906,

 529 N.E.2d 274.)

Laidlaw argues that the hearing officer is only a tool to conduct

the hearing,

 and does not advise the local decisionmaker on the

merits of the case.

 Laidlaw contends that the instances cited by

petitioners do not show a violation of fundamental fairness.

After reviewing the record and the parties’

 arguments,

the

Board finds that the record does not support a conclusion that

the hearing officer was biased or had a conflict of interest such

that the proceedings before Roxana were fundamentally unfair.

None of the

 instances cited by petitioners persuade the Board

that the hearing officer was biased.

 For example, the hearing

officer did suggest that the motion to dismiss the petition be

argued before the motion to remove the hearing officer.

 However,

when petitioners declined to do so, the hearing officer promptly

allowed petitioners to address the motion to remove the hearing

officer.

 (Tr. 4/3/90 at 26-27.)

 We find no evidence that this

sequence of events was designed to somehow trick petitioners into

waiving their right to challenge the hearing officer.

As to petitioners’ contention that the hearing officer was

 acting under

 a conflict of

 interest because of his prior

representation of Roxana in Roxana’s pre—annexation agreement

with Laidlaw,

 and the preparation of Roxana’s ordinance governing

siting application proceedings, the Board finds no evidence of

any conflict which denied petitioners fundamental fairness.

As

Laidlaw points out,

 the appellate courts have previously held

that it

 is not fundamentally unfair for a local decisionmaker who

entered into a pre—annexation agreement with a siting applicant

to subsequently act upon that application.

 (FACT,

 555 N.E.2d at

1180—1182;

 Woodsmoke,

 529 N.E.2d at 275—277.)

 The hearing

officer in this proceeding did not make any substantive findings

or recommendations on the merits of the application, but simply

conducted the hearing.

 As the appellate court has previously

noted,

the

role of the hearing officer was ministerial and of no

consequence.

Hauling,

451

N.E.2d

 569.)

In

sum,

petitioners have not presented any evidence that the hearing

officer’s prior professional relationship with Roxana created a

conflict

interest

which

would

support

finding

that

the

proceedings

were

fundamentally

unfair.

Citizens

Against

Regional

Landfill

(CARL)

Whiteside

County

(February

25,

1993),

PCB

92—156.)

CRITERIA

Petitioners raise two challenges that are related to

statutory criteria:

 criterion one

 (whether the proposed facility

is necessary to accommodate the waste needs of the intended

service area),

 and criterion eight (whether the facility is

consistent with any solid waste management plan adopted by the

county).

 (Ill.Rev.Stat.

 1989,

ch.

 111½, par.

 1039.2, now

codified at 415 ILCS 5/39.2

 (1992).)

 The usual forum for the

Board’s review of challenges relating to the statutory criteria

is a determination of whether the local decision

 is against the

manifest weight of the evidence.

 (McLean County Disposal,

566

N.E.2d at 29;

 Waste Management of Illinois, 513 N.E.2d 592.)

However,

 in this case petitioners allege that their challenges

involve only questions of law and not questions of fact,

 so that

the manifest weight of the evidence standard is inappropriate.

We will address each of the challenges separately.

Service Area

Petitioners contend that Laidlaw’s application is “fatally

 defective as a matter of law” because the application describes

a

service area of a 100-mile radius of Roxana, but only provides a

needs assessment for Madison,

St.

 Clair,

 and Monroe Counties.

Petitioners state that the pre-annexation agreement between

Roxana and Laidlaw specifies that the facility would serve a 100-

mile radius of the facility, but contend that the needs

assessment presented during the siting proceeding was limited to

the three Illinois counties.

 Petitioners argue that by failing

to analyze the entire service area,

 Laidlaw presented an

incomplete and inaccurate picture of the area’s waste disposal

needs.

 Finally, petitioners maintain that even

 if Laidlaw’s

proposed service area was limited to the three Illinois counties,

the proof presented by Laidlaw is

fatally

 defective because

it

assumes that the tn—county area must accept large volumes of

imported

garbage.

response,

Laidlaw

argues

that

repeatedly

declared

that

the

intended

service

area

primarily

the

three

Illinois

counties.

 Laidlaw states that the applicant has the right to

choose its intended service area (Metropolitan Waste Systems,

Inc.

Pollution

Control

Board

(3d

Dist.

1990),

201

Ill.App.3d

51,

 558 N.E.2d 785),

 and that

the

statute

does

not

 require

geographical

boundaries

rigid

barriers

that

service

area.

Laidlaw

states

that

the

local

decisionmaker

then

has

the

authority

reject

the

intended

service

area.

(Fairview Area Citizens Taskforce

v.

 Village of Fairview (June

22,

 1989),

 PCB 89—33,

 aff’d FACT,

 555 N.E.2d 1178.)

 Laidlaw

maintains that reference to garbage imported from outside the

three county area

 is discussed as one of several uncontrollable

factors,

and

that

unrealistic

not

recognize

that

 garbage

is transported to distant sites for disposal.

 Laidlaw disputes

petitioners’

contention

that

the

pre—annexatiori

agreement

requires that the facility serve a 100—mile radius:

 rather,

Laidlaw states that the 100-mile radius contained in that

 agreement is

 a limitation.

 Laidlaw maintains that it presented

sufficient

proof

demonstrate

compliance

with

criterion

one.

Initially,

 the Board rejects petitioners’ contention that

this issue is a question of

 law, not subject to the manifest

weight standard of review, rather than a question of fact.

The

appellate courts have repeatedly held that this Board’s review of

a local decision on the Section 39.2 criteria is limited to the

manifest weight of the evidence standard.

 (See,

 e.g., McLean

County

Disposal,

566

N.E.

29;

Waste

Management

Illinois,

513 N.E.2d 592;

F

&

 E Hauling,

 451 N.E.2d 555.)

 Petitioners have

not presented any argument, beyond their mere assertion, that

this case is somehow different.

 The crux of petitioners’

argument on criterion one

 is that the evidence presented by

Laidlaw did not support the alleged service area.

 That argument

attacks the conclusion of the local decisionmaker.

 Our review of

such challenges

 is limited to a manifest weight of the evidence

review.

 We will continue to apply that standard.

After reviewing the record and the parties’

 arguments,

the

Board finds that Roxana’s decision that criterion one is

satisfied is not against the manifest weight of the evidence.

We

agree with Laidlaw that the 100-mile radius contained in the pre-

annexation agreement is

a

 limitation, not a requirement that the

facility serve that entire area.

 In addition, the Board

 is not

willing

conclude

today

that

pre-annexation

agreement,

which

not

relevant

the

siting

process

under

Section

39.2,

somehow

binds

applicant

,in

defining

the

service

area

for

purposes

the

Section

39.2

process.

Laidlaw’s

 application states that the

facility

will

serve

“Madison

County

and

the

surrounding

areas”,

and Laidlaw’s witness repeatedly testified that the service area

is “Madison,

St.

 Clair,

 Monroe Counties and the surrounding areas

if that opportunity avails itself

 in the future.”

 (App., Vol.

1,

Sec.

4;

Tr.

 4/3/90 at 139—140,

 148,

 149,

 203,

 218.)

The

applicant is entitled to define the service area (Metropolitan

 Waste,

 558 N.E.2d 785),

 and the local decisionmaker has the power

to determine if that proposed service area is acceptable or

unacceptable (Fairview Area Citizens Taskforce (June 22,

 1989),

PCB 89—33)

 Roxana accepted the service area,

 and we cannot say

that

the

decision

was

against

the

manifest

weight

the

evidence.

10

Solid Waste Management Plan

Petitioners contend that Roxana should not have granted

siting approval because Madison County is required by the Solid

Waste Planning and Recycling Act (Ill.Rev.Stat.1989,

ch.

85,

 par.

5952,

 now codified at 415 ILCS 15/2

 (1992))

 to adopt a

comprehensive solid waste management plan by March

 1991.

Petitioners maintain that any siting approval in Madison County

is therefore in contravention of the purpose and spirit of that

statute to provide a comprehensive plan for the county.

Petitioners assert that Laidlaw entered into a pre—annexation

agreement with Roxana to avoid the jurisdiction of Madison

County,

 and to avoid the impact of the required county solid

waste management plan.

Laidlaw argues that petitioners’ claims ignore the clear

mandate of Section 39.2.

 Laidlaw notes that Section 39.2(a)

specifically states that the municipality in which a proposed

facility is located has jurisdiction to rule upon

 a request for

siting approval,

 and that subsection

 (g) states that Section 39.2

are the exclusive procedures for local siting approval.

 Laidlaw

maintains that petitioners do not contend that Madison County had

actually adopted a solid waste management plan.

Initially, the Board notes that this challenge to Roxana’s

decision does not lend itself to

 a manifest weight of the

evidence review.

 Petitioners do not contest Roxaria’s conclusion

that there was no county waste management plan,

 or otherwise

challenge Roxana’s factual conclusions.

 Instead, petitioners

contend that the approval

is

 in conflict with the purpose of a

state statute requiring the adoption of

 a solid waste management

plan.

 Thus, the Board will simply address petitioners’

contention.

Section 39.2 clearly states that the governing body of the

municipality shall approve or disapprove requests for local

siting approval.

 Roxana had a duty to decide whether Laidlaw’s

application for siting approval met each of the applicable

criteria under Section 39.2(a).

 Subsection

 (e) requires the

local decisionmaker to take final action on an application within

180 days.

 If final action is not taken in

 a timely manner,

an

applicant may deem the request approved.

 Nothing in Section 39.2

allows

a

 local decisionmaker to deny approval, or delay decision,

because a county may not have yet adopted its solid waste

management plan.

 We are unsure as to what petitioners believe

Roxana should have done when it received the siting application.

If Roxana had simply deferred action until the county plan was

adopted,

 siting approval probably would have been granted by

operation of law pursuant to Section 39.2(e).

 If the legislature

had intended that no siting approvals be granted in counties

where

 a solid waste management plans had not been adopted,

11

Section 39.2 could have been amended to reflect that intent.

The

Board rejects petitioners’ claim.

CONCLUSION

In sum,

 the Board finds that Roxana’s conclusion,

 that the

1990 and 1987 applications are not substantially the same,

 is not

against the manifest weight of the evidence.

 We find that the

record does not support a conclusion that the hearing officer was

biased or had a conflict of interest such that the local

proceedings were fundamentally unfair.

 Additionally, we find

that Roxana’s conclusion that criterion one is satisfied is not

against the manifest weight of the evidence.

 Finally, we reject

petitioners’ contention that the grant of siting approval is in

conflict with the statute requiring counties to adopt solid waste

 management plans.

 Thus, we affirm Roxana’s June

18,

1990

decision granting siting approval to Laidlaw.

This opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

Roxana’s June 18,

 1990 decision granting siting approval to

Laidlaw Waste Systems

 (Madison),

 Inc.

 for expansion of its

Cahokia Road landfill is affirmed.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41

 (1992)) provides for the appeal of final Board orders.

The

Rules

 of the Supreme Court of Illinois establish filing

requirements.

 (See also 35 Ill.Adm.Code 101.246 “Motions for

Reconsideration”.)

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

 hereby certify that the above ~pinion and order was

adopted on the

~i~—

day

______________,

1993,

vote

of

7-c

/7

Dorothy

4unn,

Clerk

Illinois

Pc~L1ution Control

 Board