ILLINOIS POLLUTION CONTROL BOARD
September 23, 1993
LARRY SLATES, LONNIE
SEYMOUR, JAMES KLABER,
FAYE MOTT, and HOOPESTON
COMMUNITY MEMORIAL HOSPITAL,
)
Petitioners,
)
v.
)
PCB 93-106
)
(Landfill Siting Review)
ILLINOIS LANDFILLS, INC., and
)
HOOPESTON CITY COUNCIL, on
)
behalf of the CITY OF
)
HOOPESTON,
Respondent.
RICHARD 3. DOYLE AND JOSEPH C. MOORE APPEARED ON BEHALF OF
PETITIONERS;
STEVEN N. HELM AND KEVIN 3. O’BRIEN APPEARED ON BEHALF OF
RESPONDENT ILLINOIS LANDFILLS, INC.; and
JOHN McFETRIDGE APPEARED ON BEHALF OF RESPONDENT THE CITY OF
HOOPESTON.
OPINION AND ORDER OF THE BOARD (by
3.
Theodore Meyer):
This matter is before the Board on a third-party appeal
filed May 27, 1993 pursuant to Section 40.1(b) of the
Environmental Protection Act (Act). (415 ILCS 5/40.1(b) (1992).)
Petitioners Larry Slates, Lonnie Seymour, James Kiaber, and Faye
Mott, and Hoopeston Community Memorial Hospital (collectively
petitioners)’ appeal respondent the City of Hoopeston’s
(Hoopeston) April 27, 1993 decision granting site location
approval to respondent Illinois Landfills, Inc. (ILl) for
expansion of an existing landfill. The Board held a public
hearing in Danville, Illinois on July 26, 27, and 28, 1993.
Members of the public attended that hearing.
The Board’s responsibility in this matter arises from
Section 40.1 of the Act. The Board is charged, by the Act, with
a broad range of adjudicatory duties. Among these is
adjudication of contested decisions made pursuant to the local
On July 22, 1993, the Board dismissed Citizens Against
Ruining the Environment (C.A.R.E.), Hoopeston Industrial
Corporation, and William and Mary Regan as petitioners, for lack
of standing.
2
siting approval provision for new regional pollution control
facilities, set forth in Section 39.2 of the Act. More
generally, the Board’s functions are based on the series of
checks and balances integral to Illinois’ environmental system:
the Board has responsibility for rulemaking and principal
adjudicatory functions, while the Board’s sister agency, the
Illinois Environmental Protection Agency (Agency) is responsible
for carrying out the principal administrative duties,
inspections, and permitting. -The Agency does not have a
statutorily-prescribed role in the local siting approval process
under Sections 39.2 and 40.1, but would make decisions on permit
applications submitted if local siting approval is granted and
upheld.
PROCEDURAL HISTORY
ILl filed its application for site location approval on
November 25, 1992. (C1-C435.)2 ILl seeks approval for expansion
of an existing regional pollution control facility located south
of Hoopeston. The proposed expansion includes a horizontal and
vertical increase of the existing landfill, and will include a
previously closed landfill. That previously closed landfill,
known as the Tweedy Landfill, would be completely exhumed. The
landfill will continue to accept municipal waste and nonhazardous
special wastes. The proposed facility also includes a recycling
center. (Cl.)
In January and February 1993, Hoopéston published notice of
its scheduled public hearing on the application. (C650—C652.)
The notice stated that the hearing would be held on March 3,
1993, and also stated that:
The public hearing is open to the public and any person
willing to offer oral testimony at the hearing may do
so. In addition any person may file written comment
with the City Council concerning the appropriateness of
the proposed expansion for its intended purpose.
(C650.)
On February 10 and 11, 1993, four people (James Klaber, Larry
2
Citation to the record filed by Hoopeston will be
indicated as “Cxxx”, while citation to the transcript of the
hearing held by Hoopeston will be indicated as “Tr. at x”. “PCB
Tr. at x” will refer to the July 26-28 hearing held by this
Board, and exhibits introduced at the Board hearing will be
designated as “Exh. x”. Finally, “Tr. 4/15/93 at x” and “Tr.
4/27/93 at x” will refer to the transcripts of two city council
meetings.
3
Slates, Lonnie Seymour, and Julie Soliday) filed appearances,
pursuant to Hoopeston Ordinance 93—16. (C67l-C674.)
The local hearing was held on March 3, 1993, before a
hearing officer. ILl presented evidence in support of its
application. The parties who had filed appearances (except for
Ms. Soliday, who did not appear at hearing) cross-examined ILl’s
witnesses and presented their own exhibits. All members of the
public who signed the sign-in -sheet were given an opportunity to
comment. (Tr. at 10, 305.) On April 15, 1993, after the close
of the public comment period, the city council held a special
meeting to consider ILl’s application. Hoopeston’s consulting
engineer attended that hearing and answered questions from the
city council members. The hearing officer was also present, and
he also answered questions from the council members.
On April 27, 1993, the city council met to vote on the
application. The city clerk read a proposed resolution to the
members, which would approve the application. An alderman moved
to add three conditions to the proposed resolution. The proposed
resolution, with the three additional conditions, passed by a
vote of 5 to 4, with the mayor casting the deciding vote. (Tr.
4/27/93 at 11—12.) Hoopeston then prepared a written decision,
which was signed by the mayor and the city clerk. That decision
is dated April 27, 1993, which was the date of the vote. (Cl151—
C1153.) Petitioners then filed this appeal with the Board.
STATUTORY FRAMEWORK
At the local level, the siting process is governed by
Section 39.2 of the Act. Section 39.2(a) provides that local
authorities are to consider as many as nine criteria when
reviewing an application for siting approval. These statutory
criteria are the only issues which can 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
4
because the lower tribunal credits one group of witnesses and
does not credit the other. (Fairview Area Citizens Taskforce
(FACT) v. Pollution Control Board (3d Dist. 1990), 198 Ill.App.3d
541, 555 N.E.2d 1178, 1184; Tate
V.
Pollution Control Board (4th
Dist. 1989), 188 Ill.App.3d 994, 544 N.E.2d 117.6, 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
Landfill1 Inc., PCB 90—94 (August 30, 1990), aff’d File v. D & L
Landfill, Inc. (5th Dist. 1991), 219 Ill.App.3d 897, 579 N.E.2d
1228. However, where an applicant made a prima facie showing as
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. v. Pollution Control Board (1st Dist. 1992), 227 I11.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 their amended petition, petitioners raised two claims
relating to Hoopeston’s jurisdiction to decide ILl’s application
for site approval: that ILl failed to properly notify all
applicable state officials, and that ILl failed to give proper
notice to all property owners within 250 feet of the proposed
site. However, petitioners have not addressed these claims in
either their opening brief or their reply brief. Thus, the Board
finds that petitioner has not carried its burden of proof on
these two claims.
FUNDAMENTAL FAIRNESS
Section 40.1 of the Act requires the Board to review the
proceedings before the local decisionmaker to 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
5
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.)
Petitioners have raised a number of claims that the
proceedings at the local level were not fundamentally fair. The
claims can be divided into six different categories, each of
which will be addressed separately.
City Ordinances
On September 1, 1992, prior to the filing of ILl’s
application for site approval, Hoopeston adopted two ordinances
addressing local siting proceedings. Ordinance 93—16 is entitled
“Ordinance for the Approval of Pollution Control Facility Siting
in Hoopeston, Illinois”. (Exh. 6 and 7.) Ordinance 93—18 is
entitled “Procedural Rules for Public Hearing”. (Exh. 6 and 7.)
Petitioners contend that certain provisions in these ordinances
rendered the local proceedings fundamentally unfair.
First, petitioners argue that the requirements in Ordinance
93-16 that all parties “desiring to participate” in the public
hearing must file an appearance at least 21 days prior to the
public hearing, and that all parties other than the applicant
must file written testimony and exhibits at least 10 days prior
to the hearing, are fundamentally unfair. The pertinent portion
of Ordinance 93—16 states:
Any party who desires to participate in the public
hearing shall file an entry of appearance, which shall
include the address of the party, with the City Clerk
at least twenty—one (21) days prior to the public
hearing and serve a copy upon the hearing officer. Any
party except the applicant shall submit all written
testimony to be presented at the public hearing and all
other evidence relating to the application requirements
***,
including but not limited to reports, studies, and
exhibits that the party desires to submit for the
record by filing the original and fifteen (15) copies
of the same with the City Clerk at least ten (10) days
prior to the public hearing and by serving one (1) copy
upon the hearing officer and each party. (Exh. 6 and
7, Ordinance 93—16 at 14—15.)
Petitioners maintain that the obligations and burdens placed on
citizens by Ordinance 93-16 impeded, if not completely blocked,
6
the ability to participate openly. Petitioners state that the
applicant is exempted from the requirement that testimony and
exhibits be filed 10 days prior to hearing, and assert that
therefore the objectors had no opportunity to respond.
Petitioners allege that the rules overcome the public’s right to
free and open participation in the process, without any valid
purpose.
In response, ILl points out that petitioners do not provide
any authority for their claim that the provisions of the
ordinance are fundamentally unfair. ILl contends that the
preregistration and prefiling requirements are permitted, and
note that local authorities are allowed to establish rules for
conducting a local siting hearing, as long as those rules are not
inconsistent with the statute and are fundamentally fair. (Waste
Management of Illinois, Inc. v. Pollution Control Board (2d Dist.
1988), 175 Ill.App.3d 1023, 530 N.E.2d 682, 125 Ill.Dec. 524.)
ILl maintains that the requirements of Ordinance 93-16 are not
inconsistent with the provisions of Section 39.2(d) regarding the
public hearing. ILl also contends that the ordinance has a valid
purpose, and points to testimony from the mayor and an alderman
that the ordinance was intended to require parties to make their
information available prior to hearing, just as the applicant was
required to provide its evidence when filing the application.
(PCB Tr. at 232, 504.)
Finally, ILl argues that petitioners’ objection that the
applicant was “exempted” from the prefiling requirement misses
the point. ILl states that it, as an applicant, was required by
the statute and Ordinance 93-16 to file a voluminous application
containing information on the facility and each of the applicable
criteria. ILl states that the application was available for
public inspection for more than two months before other parties
were required to pre-register and pre-file. ILl notes that in
Waste Management, the appellate court upheld a local requirement
that the applicant submit all of its information at the time it
filed its application. ILl thus contends that a requirement that
other parties submit their evidence before hearing cannot be
deemed illegal or unfair. ILl maintains that Hoopeston properly
balanced its interest in conducting the hearing fairly and
efficiently with its interest in allowing members of the public
to participate as parties.
After reviewing the record and the arguments of the parties,
the Board finds that the preregistration and prefiling
requirements of Ordinance 93—16 are not fundamentally unfair.
ILl correctly notes that the appellate court has upheld a local
ordinance which barred an applicant from introducing written
material at hearing, other than material originally filed with
the application. The court stated that “s)uch a rule is
consistent with the policy of apprising the county and the
objectors of the evidence relied on by the applicant and also
7
eliminates potential delays in the adjudicatory process.” (Waste
Management, 530 N.E.2d at 693.) If we switched the references to
“objectors” and “applicant”, so that the sentence stated that the
rule apprised the local decisioninaker and the applicant of the
evidence relied on by the objectors, and eliminates potential
delays, the court’s statement would perfectly fit the instant
situation. The Board cannot see how it could be fundamentally
fair to require prefiling by the applicant, but somehow
fundamentally unfair to require prefiling by other parties,
including objectors, as required here.
It is very important to note, however, that the
preregistration and prefiling requirements of Ordinance 93—16 did
not bar the public from presenting comments and questions at the
local hearing. Ordinance 93—18 specifically states:
After all testimony has been presented, members of the
public will be invited to provide comments and
questions teic the witnesses. Members of the public
who wish to comment or ask questions are required to
register by providing their full name and current
address on a registration sheet. (Exh. 6 and 7,
Ordinance 93-18 at 2.)
The notice of hearing also stated that the hearing was open to
the public and that any person may offer oral testimony. (C650.)
The hearing officer reiterated this provision at the beginning of
the hearing (Tr. at 10), and public comments and questions were
subsequently heard (Tr. at 305-331). At the close of the
hearing, the hearing officer asked if there was anyone else who
would like to speak who was not on the sign-in sheet. (Tr. at
330.) The Board makes no decision on whether an ordinance which
prevents persons from making any comment at hearing without
prefiling is fundamentally fair. We find only that the
requirement in Ordinance 93-16 that persons preregister and
prefile in order to participate as parties is not fundamentally
unfair.
Second, petitioners contend that the two ordinances (93—16
and 93—18) governing the local proceedings are inconsistent.
Petitioners state that Ordinance 93-16 requires parties to file
appearances 21 days prior to hearing, and to file testimony and
exhibits 10 days prior to hearing. Petitioners compare that
requirement with Ordinance 93-18, which provides that members of
the public wishing to comment must register by providing their
full name and current address. Petitioners conclude that these
two provisions conflict, and state that the hearing officer wrote
a letter to the mayor in an attempt to reconcile the ordinances.
(Exh. 8.) Petitioners maintain that the result is total
confusion as to who could participate in the hearing.
In response, ILl argues that Ordinance 93—16 sets forth
8
rules for those who desire to participate as parties to the
hearing, while Ordinance 93-18 governs procedures for the hearing
itself. ILl contends that the city council thus established
different requirements for parties and for members of the public
who merely wished to provide comments and question witnesses.
ILl maintains that the different requirements are the result of
Hoopeston’s legitimate desire to expedite the process.
The Board agrees that the provisions of the two ordinances
are not as clear as we may wish. However, we do not find that
the vagueness of the provisions created any fundamental
unfairness in the local proceedings. The ordinances do indeed
create different requirements for those who wish to participate
as parties, presenting testimony and evidence, than for members
of the public who simply wish to comment and ask questions.
Petitioners have not presented any authority for their
implication that differing requirements for different types of
participants creates fundamental unfairness, and we do not find
any such problem.
Third, petitioners apparently contend that failure to
include the requirements of Ordinance 93-16 in the notice of
public hearing was fundamentally unfair. Petitioners state that
Hoopeston claims to have published the requirements by posting
Ordinance 93-16 on a bulletin board at City Hall, and conclude
that a citizen would have to go to City Hall and wade through
various ordinances in order to learn about the requirements.
Petitioners maintain that this procedure does not meet the intent
of publication of a notice of public hearing.
In response, ILl maintains that those members of the public
who sought to be involved in the process could and did know of
the ordinance. ILl points to testimony by two citizens that they
knew of the preregistration requirements of Ordinance 93—16 (PCB
Tr. at 165, 598-599), and notes that four members of the public
obviously knew of the ordinance because they complied with the
preregistration requirement (C671—C674). ILl also notes that a
city employee, who is now deputy city clerk, testified that both
Ordinance 93—16 and Ordinance 93—18 were posted on the bulletin
board at City Hall, and were available for public inspection.
(PCB Tr. at 32—34.)
The Board is unsure from the briefs whether petitioners’
challenge to the method of notification of the ordinance is a
challenge to the fundamental fairness of the proceeding, or a
challenge to the sufficiency of the notice of public hearing.
Thus, we will address both possibilities. We reject any claim
that the local proceeding was fundamentally unfair because of the
manner in which the applicable city ordinances were, or were not,
publicized. Petitioners have cited no authority for such a
claim. City ordinances are presumed to be known to inhabitants
of the city and to those having dealings with the city. (DuMond
9
v. City of Mattoon (4th Dist 2965), 60 Ill.App.2d 83, 207 N.E.2d
320; City of Chicago v. Atkins (1st Dist. 1958), 19 Ill.App.2d
177, 153 N.E.2d 302.) There is no evidence in this record that
the ordinance was somehow improperly adopted, or withheld from
public inspection. Thus, we find no violation of fundamental
fairness arising from the method of notification of the
ordinance.
The Board also rejects any claim that the public notice of
the hearing published by Hoopeston in two local newspapers is
somehow deficient. Section 39.2(d) of the Act requires the local
hearing “to be preceded by published notice in a newspaper of
general circulation published in the county of the proposed
site”. (415 ILCS 5/39.2(d) (1992).) The notice of public
hearing published by Hoopeston gives the date, time, and place of
the public hearing, and summarizes the subject of the hearing.
(C650-C652.) Petitioners have not pointed to any requirement of
the statute or case law that the notice contain any further
details, nor do they claim that the notice was insufficient to
notify the public of the location, time, date, and subject of the
hearing. We find that the notice of public hearing meets the
requirements of the Act.
Hearing Officer Instructions
Next, petitioners contend that the hearing officer gave
erroneous instructions to the city council on the burden of
proof. Petitioners note that at the April 15 special council
meeting, held to discuss the siting application, the hearing
officer discussed the burden of proof and how the city council
should judge whether the applicant had met that burden.
Petitioners maintain that the hearing officer made a number of
errors in that discussion, including a failure to emphasize that
a lack of evidence or a lack of foundation is a basis for
rejecting expert opinion, and that the hearing officer made only
passing reference to the fact that the city council may determine
whether to believe expert witnesses. Petitioners argue that
because the city council received incorrect instructions, this
Board should either reverse Hoopeston’s decision, or remand to
Hoopeston.
ILl contends that petitioners’ claims on this issue contain
two fundamental flaws. First, ILl argues that there is no
authority for petitioners’ assumption that the hearing officer
was obligated to instruct the city council on every conceivable
evidentiary issue and legal burden. ILl also states that there
is no authority for the proposition that a hearing officer has an
obligation to provide any instructions to the local
decisionmaker. Second, ILl maintains that, in answering
questions from the council members, the hearing officer properly
explained each issue raised. ILl asserts that the transcript of
the April 15 special meeting contr~aictsthe claim that the
10
hearing officer “strongly ir~iied” that the city council could
not disbelieve a witness’s testimony. ILl argues that the
hearing officer properly answered the questions asked of him by
council members, and the city council was able to fairly consider
the evidence before it ILl contends that no more is required.
After reviewing the record and the parties’ arguments, the
Board finds no error in the hearing officer’s discussions with
the city council. As ILl points out, petitioners have failed to
cite any authority for their assumption that the hearing officer
is obligated to discuss every possible legal issue and burden
raised by a siting proceeding. The fact that the city council
members are “laymen”, as described by petitioners, does not
somehow require the hearing officer to provide exhaustive
instructions on all conceivable issues. Additionally, we have
reviewed the transcript of the April 15 council meeting (Exh. 1),
and we find nothing erroneous in the answers that the hearing
officer gave to questions -from the council members. We reject
petitioners’ contention that the hearing officer failed to
properly inform the council that they could determine whether to
believe a witness. The hearing officer specifically stated that
“It’s for you to decide whether you believe that person (a
witness or not
***
Eyou as the jury have to decide who is
telling the truth or who is
--
who you think is a better expert.”
(Tr. 4/15/93 at 52.) In sum, we find no violation of fundamental
fairness caused by the hearing officer’s discussions with the
Hoopeston’scity
council.Consulting3
Engineer
Petitioners also object to the role of the consulting
engineer retained by Hoopeston to provide technical assistance
regarding the hydrogeological study submitted by ILl.
Petitioners contend that although the engineer, Michael Streff,
was retained in January 1993, there was no report made available
until after the March 3 public hearing. Petitioners state that
Mr. Streff did not testify at the March 3 hearing. Petitioners
maintain that “evidence available and received both before and
after the March 3, 1993 public hearing was withheld from the
public and severely retarded or eliminated the objectors (sic
ability to question and develop this information as part of the
total evidence on the criteria (sic.” (Pet. Br. at 40.)
Petitioners assert that the activities surrounding Mr. Streff’s
involvement were fundamentally unfair.
The Board notes that in their reply brief, petitioners
contend, without citation to authority, that the hearing officer
had a duty to protect pro se litigants from aggressive tactics by
the applicant’s attorney. This claim was raised for the first
time in the reply brief. Thus, we will not consider that claim.
11
In response, ILl contends that Mr. Streff’s role was proper.
ILl argues that petitioners’ claims that Mr. Streff should have
been required to testify at the March 3 hearing, and that
correspondence between the engineering firm and Hoopeston should
have been placed in the record, are baseless. ILl maintains that
the Board has previously held that a siting authority is not
required to file reports prepared by its own experts. (Material
Recovery Corporation v. Village of Lake-in--the-Hills (July 1,
1993), PCB 93—11 at 12—13.)
ILl also asserts that petitioners have grossly
inischaracterized the testimony given by Mr. Streff regarding his
role. ILl maintains that contrary to petitioners’ implication,
Mr. Streff testified that prior to the March 3 hearing, he had
reviewed ILl’s hydrogeological report, but had not prepared his
own written study or report. (PCB Tr. at 321.) ILl contends
that Mr. Streff stated that his role was to respond to written
questions from the city council, and not to prepare a report or
critique of ILl’s hydrogeological report. (PCB Tr. at 327.) ILl
argues that Mr. Streff’s role in the local proceeding was limited
to that of a neutral advisor on ILl’s hydrogeological study, and
was entirely proper.
The Board finds nothing improper in Mr. Streff’s role in the
local proceedings. The practice of retaining a technical expert
to assist the local decisionmaker has been upheld by the
appellate court and by this Board. (McLean County Disposal v.
Pollution Control Board (4th Dist. 1991), 207 Ill.App.3d 477, 566
N.E.2d 26; Fairview Area Citizens Taskforce v. Village of
Fairview (June 22, 1989), PCB 89—33, aff’d FACT, 555 N.E.2d 1178;
Material Recovery Corporation, PCB 93—11.) Although petitioners
repeatedly refer to Mr. Streff’s “report”, the record shows that
Mr. Streff did not prepare a written report. (PCB Tr. at 321.)
We believe that it is obvious that an expert who does not prepare
a written report cannot somehow be required to file such a
report.
Likewise, we find rio merit in petitioners’ objection that
although Mr. Streff was not “allowed” to testify at the March 3
public hearing, he was allowed to “testify” at the April 15
“hearing” such that the objectors could not cross—examine him.
There is no evidence in the record that Mr. Streff was prevented
from testifying at the March 3 hearing. Instead, the record
indicates that Mr. Streff was retained in order to advise the
city council, not to provide evidence in this proceeding.
Petitioners have failed to cite any authority for their claim
that technical experts retained by a local decisionmaker are
required to appear at the local hearing to testify. In fact, the
Board has specifically held that it is not the local
decisionmaker’s obligation to provide evidence proving or
disproving an applicant’s assertions. (Material Recovery
Corporation, PCB 93-11; Hediqer v. D & L Landfill1 Inc. (December
12
20, 1990), PCB 90-163.) As to petitioners’ claims regarding the
April 15 “hearing”, the Board notes that the April 15 gathering
was a special meeting of the city council to discuss the
application, not a hearing. We find that Mr. Streff’s
involvement in that April 15 meeting was simply to answer
questions from the city council, which was the role for which he
was retained. (Tr. 4/15/93 at 19—67.)
In sum, we find that Mr. -Streff’s role in the local
proceeding was proper, and that nothing associated with Mr.
Streff’s participation rendered the local proceedings
fundamentally unfair.
Predisposition and Bias
Petitioners also contend that two voting members of the city
council were predisposed or biased in favor of granting site
approval. First, petitioners maintain that the mayor, who voted
in favor of the application to break a tie, had prejudged the
issue. Petitioners assert that in various presentations to the
Hoopeston Industrial Corporation (HIC), the Hoopeston Community
Memorial Hospital and Nursing Home, and the Hoopeston Planning
Commission, the mayor only discussed monetary gain to Hoopeston,
the development of a recycling center, and the possible clean up
of the old Tweedy Landfill. Petitioners note that this Board and
the appellate court had ruled that.consideration of monetary
gains to a local decisionmaker, standing alone, do not show
prejudice or bias. However, petitioners argue that this record
shows a complete paucity of evidence that the mayor ever
considered the nine statutory criteria, and thus demonstrates the
mayor’s predetermination in favor of the site approval.
In response, ILl maintains that petitioners’ claims are
totally unsubstantiated by the record, and that the claims ignore
the applicable standard that guides local decisionmakers’ conduct
during the siting process. ILl states that the appellate court
has held that there is a presumption that administrative
officials are objective, and that the fact that an official has
taken a position or expressed strong views on an issue does not
overcome the presumption. (Waste Management, 530 N.E.2d at 695—
696.) ILl also points to Section 39.2(d) of the Act, which
states that:
The fact that a member of the county board or governing
body of the municipality has publicly expressed an
opinion on an issue relating to a site review
proceeding shall not preclude the member from taking
part in the proceeding and voting on the issue. (415
ILCS 5/39.2(d) (1992).)
ILl contends that the record does not show any evidence
sufficient to overcome the presumption of objectivity, since the
13
record does not reflect any statement that the mayor actually
advocated approval. ILl asserts that the mayor’s own testimony
at the Board hearing demonstrates that he did not prejudge the
merits of the application. Finally, ILl argues that petitioners’
failure to raise objection to the mayor voting on the application
at any time during the original proceeding constitutes a waiver
of this issue. (A.R.F. Landfill1 Inc. v. Pollution Control Board
(2d Dist. 1988), 174 Ill.App.3d 82, 528 N.E.2d 390.)
The Board finds that petitioners have waived any claim of
bias or predisposition by the mayor by failing to object at the
local proceeding. There are a number of cases in which the
courts have held that in order for the question of bias to be
raised on appeal, that issue must have been raised prior to or
during the local hearings. As the supreme court stated, “To
allow a party to first seek a ruling in a matter and, upon
obtaining an unfavorable one, permit him to assert a claim of
bias would be improper.” (B & B Hauling, 481 N.E.2d at 666.)
(See also FACT, 555 N.E.2d at 1180—1181; A.R.F. Landfill, 528
N.E.2d 390.)
We note that petitioners allege that the record does not
show that petitioners were aware of the issue at the March 3
hearing, and contend that ILl has waived its right to raise the
issue of waiver by failing to object to testimony at the Board
hearing on the claim of the mayor’s alleged bias. We reject both
contentions. All of the instances which petitioners contend
demonstrate the mayor’s bias occurred prior to the filing of
ILl’s application. For example, the meetings of the Planning
Commission, HIC and the hospital at which the mayor appeared
occurred between June 29, 1992 and November 19, 1992. (PCB Tr.
at 56, 139, 237, 239.) Additionally, the newspaper articles
cited by petitioners as evidence of bias were published on July
24, 1992 and July 28, 1992. (Exh. 17 and 18.) The instant
application was filed on November 25, 1992. Quite simply, the
record does not support petitioners’ allegation that they were
not aware of the issue at the March 3 hearing. As to the
contention that ILl waived its argument on this issue by failing
to object at the Board hearing, petitioners cite no authority for
such a proposition. A failure to object to the introduction of
the evidence on the issue of bias, at the Board hearing, is not
the same as a failure to raise a claim of bias at the level where
that bias might be cured. As the E & E Hauling court noted, the
purpose of requiring objection to alleged bias at the local level
is to prevent a party from seeking a ruling and then raising the
issue of bias only if the ruling is unfavorable. No such purpose
is applicable to a failure to object to the introduction of
evidence at the Board hearing.
Second, petitioners contend that the Board hearing
developed, for the first time, that Alderman Odell Crabtree
should have been disqualified from voting. Petitioners contend
14
that Alderman Crabtree was contractually employed by ILl or
Vermilion Waste Systems (also owned by the Van Weeldens, owners
of ILl) during 1992 and 1993 through the construction company he
owns Petitioners maintain that Alderman Crabtree was therefore
in a conflict of interest to vote or participate in the siting
proceedings. Petitioners assert that they had no access to
knowledge of Alderman Crabtree’s conflict of interest, and thus
could not have been expected to raise the issue at the public
hearing.
In response, ILl argues that petitioners’ contention that
they had no access to knowledge of Alderman Crabtree’s alleged
conflict of interest is refuted by the record. ILl contends that
Alderman Crabtree stated at a Planning Commission meeting in July
1992 that he had worked for the Van Weelden brothers (PCB Tr. at
134, 146, and 366), and that Planning Commission Chairman James
Klaber, who is a petitioner in the instant appeal, was present at
that meeting (PCB Pr. at 130, 540—541). Thus, ILl maintains that
any claim of conflict of interest of Alderman Crabtree could have
been raised at the local hearing, and thus petitioners have
-
waived the issue. Further, ILl argues that even if the issue had
not been waived, there is no evidence that Alderman Crabtree’s
vote was the product of bias. ILl contends that the work at
issue was not performed while the application was pending, and
that there was no connection between the minor construction
services performed and Alderman Crabtree’s vote on the
application.
The Board finds that petitioner Klaber has waived any claim
of bias by Alderman Crabtree by failing to object at the local
proceeding. We find that the record does indeed show that Mr.
Klaber had knowledge of the alleged conflict of interest, sinde
it is undisputed that Mr. Klaber was in attendance at the
Planning Commission meeting where Alderman Crabtree disclosed
that he had done work for the Van Weelden brothers. (PCB Tr. at
130, 134, 146, 366, 540—541.) Therefore, Mr. Klaber must be held
to the standard articulated by the courts, that claims of bias
must be raised at the local hearing.
However, we find no evidence that the other petitioners knew
or had reaason to know of the alleged conflict of interest prior
to the local hearing. Therefore, we find that the other four
petitioners have not waived this issue.
After reviewing the record, the Board concludes that
Alderman Crabtree did not have a conflict of interest which
required his disqualification from the vote. The record shows
that HOW Construction, which is partially owned by Alderman
Crabtree, was paid $450 for repairing a shed door at Vermilion
Waste on July 7, 1992, and $655.08 for construction work in the
Vermilion Waste office on September 30, 1992. (Exh. 15.) The
record also includes a June 24, 1993 proposal for future work,
15
estimated at $2,370. Alderm~rCrabtree testified that HOW was
working on that project (raising a scale house on posts) at the
time of the Board hearing. (PCB Tr. at 358.) Alderman Crabtree
stated that he had no contact with anyone connected with ILl
between the filing of the application (November 25, 1992) and the
city council’s vote on the application (April 27, 1993). (PCB
Tr. at 372-373.) Alderman Crabtree further testified that no one
promised that HOW would receive additional work from Vermilion
Waste or ILl if the application was approved (PCB Pr. at 374),
and that he considered only the nine statutory criteria when
making his decision on the application (PCB Tr. at 375).
In our decision in Board of Trustees of Casner Township v~.
County of Jefferson (April 4, 1985), PCB 84—175, the Board held
that excavating activities performed by a county board member at
the site of the proposed facility, during the pendency of the
request for site approval, did not reach the level of a
disqualifying conflict of interest. (Casner Township, slip op.
at 10-11.) The Board noted that the supreme court has held that
a decisionitaker who has a financial interest in the subject
matter must recuse himself. (In Re Heirich (1956), 10 Ill.2d
357, 140 N.E.2d 825, 838—839.)
We find that the facts of this case are analagous to those
in Casner Township, and that Alderman Crabtree’s work for
Vermilion Waste prior to the filing of the application did not
create a conflict of interest which required that he be
disqualified. There is no evidence in the record which suggests
that Alderman Crabtree has any financial interest in the
expansion of the landfill, and we specifically reject
petitioners’ speculation that the work performed by HOW after the
application was approved was a “reward” for Alderman Crabtree’s
vote. We note that petitioners point out that the amount of
money recieved as compensation in Casner Township ($150) was less
that the money paid to HOW ($1105.08 prior to the filing of the
application, and $2370 subsequent to the April 27 decision).
However, in this case there is no evidence that the work in
question was performed during the pendency of the application, as
was the case in Casner Township. It is well-settled that there
is a presumption that administrative officials are objective and
capable of fairly judging a particular controversy. (Waste
Management, 530 N.E.2d at 537; Citizens for a Better Environment
v. Pollution Control Board (1st Dist. 1987), 152 Ill.App.3d 105,
504 N.E.2d 166.) We find no evidence in the record which
overcomes this presumption.
Finally, the Board notes that in arguing that they have not
waived the issues of bias and predisposition, petitioners cite to
the Board’s decision in Gallatin National Company v. Fulton
CountY Board (June 15, 1992), PCB 91-156. Petitioners quote the
Board’s statement that “it would be absurd to find that
although the Board must examine fundamental fairness, the
16
petitioners are excluded fron presenting evidence on these
questions.” (Gallatin National, PCB 91—256 at 8.) The Board
finds that this quote is not relevant to the issue of whether a
claim of bias is waived by a failure to raise the issue at the
local level. In Gallatin National, the Board was ruling on a
motion in limine which sought to prohibit petitioners from
calling witnesses or adducing evidence at the Board’s hearing on
the issue of fundamental fairness. We fail to see the connection
to this case.
Evidence Outside the Record
Petitioners next contend that not all evidence and comment
were included in the record before the city council. First,
petitioners argue that it was fundamentally unfair for the city
council to accept the letter and appearance of Samuel Panno, a
geocheinist, at the October 20, 1992 city council meeting “without
including him and his documents in the public record for review
by the objectors (sic March 3, 1993.” (Pet. Br. at 39.)
Petitioners maintain that this evidence was withheld from the
public and severely retarded or eliminated the objectors’ ability
to question and develop this information. Second, petitioners
contend that the omission from the record of approximately 850
letters sent to the city council (Exh. 3) violated the statute,
and requires reversal of Hoopeston’s decision for failure to
consider these written comments.
In response, ILl maintains that because there was no
application for siting pending before the city council at the
time Mr. Panno appeared, there is no obligation that Mr. Panno’s
appearance be included in the subsequent record. ILl cites the
Board’s decision in Hediger, PCB 90—163, for the proposition that
the local decisionmaker is not required to prove or disprove the
merits of the siting application. ILl also argues that even if
there was a requirement to include Mr. Panno’s information,
petitioners suffered no prejudice, since petitioners cited Mr.
Panno’s written opinion extensively and introduced a letter from
Mr. Panno during the siting hearing. (Tr. at 247-249.)
As to the 850 letters omitted from the record, ILl states
that these letters were submitted to Hoopestori before the
application for siting approval was filed. ILl argues that
petitioners have cited no authority for the proposition that
correspondence regarding a potential landfill application
received prior to the filing of the application must be made part
of the siting record, and notes that Section 39.2(c) requires
only that the local decisionmaker consider any comment received
no later than 30 days after the last public hearing. In any
event, iLl maintains that the record shows that the city council
was informed of the existence of the letters, and that the
letters were available for review by council members. (PCB Tr.
at 32, 287.)
17
The Board believes that petitioners are challenging the city
council’s failure to place the Panno documents and the letters in
the record for public review during the pendency of the local
proceedings. We reject that claim. Petitioners have not pointed
to any authority which requires information submitted prior to
the filing of an application for site approval be placed in the
siting record. Petitioners are technically correct that Section
39.2(c) provides only that correspondence received not later than
30 days after hearing must be considered by the local
decisionmaker, and does not say that such correspondence must be
received before the application is filed. However, we find that
to require that any document related to an application for siting
approval, no matter how long it was received before the filing of
the application, be placed in the record would cause great
uncertainty as to the proper scope of the record. For example,
if a local decisioninaker received correspondence regarding an
existing landfill some years before that landfill filed an
application for approval of an expansion, would that
correspondence need to be included in the siting record? The
Board finds that Section 39.2 requires only that the record
include, and that the decisionmaker consider, all correspondence
received from the time that an application is filed, until 30
Writtendays
afterDecisionthe last hearing.4
Finally, petitioners challenge Hoopeston’s consideration of
the applicable statutory criteria, and subsequent written
decision. First, petitioners argue that the record of the city
council’s meetings on April 15 and April 27 fails to show a
review of the nine criteria. Petitioners contend that simply
listing the criteria at the beginning of the April 15 meeting,
without fully discussing each criteria, is clear error and a
disregard of the requirements of the statute. Second,
petitioners challenge the sufficiency of the written decision
issued by Hoopeston. Petitioners object to the fact that the
council members did not have a written resolution of findings of
fact before them when the vote was taken on April 27, 1993, and
argue that it was insufficient for the written resolution to
simply list each criteria, without specific reasons for the
decision.
In response, ILl maintains that petitioners are mistaken in
believing that Hoopeston was obligated to deliberate separately
on each of the applicable criteria. ILl contends that the only
We note that there is no claim that persons who
submitted letters prior to the filing of the application were in
some way prevented from filing a comment during the pendency of
the application.
18
requirements for decision are that the record be available for
review by all members of the siting authority, and that the
decisionxnaker issue a written decision. (Waste Management, 175
Ill.App.3d at 1044.) As to the sufficiency of the written
decision, ILl contends that Section 39.2(e) does not require that
decisionmakers actually have a written decision before them when
voting, and that Hoopeston is not obligated to explain its
reasons for each individual finding of fact. (E & E Hauling, 116
Ill.App.3d at 616.)
--
The Board finds no error or denial of fundamental fairness
in the city council’s failure to discuss each criterion
separately. The hearing officer specifically reminded the
council members that there are nine criteria to be considered,
and that the applicant must satisfy those criteria. He then read
all nine criteria. (Tr. 4/15/93 at 17.) As-the appellate court
noted in Waste Management, there is no requirement that the local
decisioninaker conduct any debate as long as they have had an
opportunity to review the record prior to voting. (Waste
Management, 530 N.E.2d at 698.)
The Board also finds that the written decision is sufficient
to meet the requirements of Section 39.2. As the appellate court
has stated, a local decisionmaker need only indicate that the
criteria have or have not been met. (B & E Hauling, 116
Ill.App.3d at 616.) The written decision, dated April 27, makes
specific findings that each criterion has either been satisfied,
or is not applicable. (Cl151-l153.) We find no violation of
fundamental fairness associated with the form of the written
decision, or the adoption of that written decision.
STATUTORY CRITERIA
Petitioners also attack Hoopeston’s findings on six of the
nine statutory criteria set forth in Section 39.2. As previously
stated, 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, 566
N.E.2d at 29; E & E Hauling, 451 N.E.2d 555.) 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.
(FACT, 555 N.E.2d at 1184; Tate~544 N.E.2d at 1195; Waste
Management of Illinois, Inc. v. Pollution Control Board (2d Dist.
1989), 187 Ill.App.3d 79, 543 N.E.2d 505, 507.) Specifically,
petitioners challenge Hoopeston’s decision on criteria one, two,
three, four, five, and six.
19
Criterion one
Section 39.2(a) provides that a local decisionmaker must
determine whether the proposed facility is necessary to
accommodate the waste needs of the area it is intended to serve.
Hoopeston found that this criterion had been satisfied, stating
in its written decision that “the facility is necessary to
accommodate the waste needs of the City of Hoopeston and the
Vermilion County Area.” (C1152.)
First, petitioners argue that Hoopeston failed to properly
set forth criterion one in its written decision. Petitioners
point to Hoopeston’s finding that the facility is necessary for
the waste needs of Hoopeston and the Vermilion County area.
Petitioners maintain that ILl was obligated to establish that the
proposed facility is necessary to accommodate the waste needs of
the 31—county area which ILl proposed to serve, not just
Hoopeston and the Vermilion County area. Thus, petitioners
assert that Hoopeston’s decision can only be interpreted as a
finding against ILl for the proposed 31-county service area.
In response, ILl maintains that petitioners simply
misinterpret Hoopeston’s finding of need for a facility to serve
the Vermilion County area. ILl states that Hoopeston had agreed
on the definition of the service area in the host agreement
entered into between Hoopeston and ILl, and notes that the host
agreement lists the 31 counties included in the service area.
(C439.) ILl contends that its proposal was for a limited service
area of counties within transport range, and defined by the host
agreement with Hoopeston. ILl argues that Hoopeston.’s finding
that the facility is needed to accommodate the Vermilion County
area is fully consistent with the service area proposed by ILl
and agreed to by Hoopeston in the host agreement.
After reviewing the record and the arguments of the parties,
the Board finds that Hoopeston’s decision on criterion one does
not comport with the requirements of the statute. Section
39.2(a) states that local siting approval shall be granted only
if the proposed facility “is necessary to accommodate the waste
needs of the area it is intended to serve”. (415 ILCS 5/39.2(a)
(1992) (emphasis added).) It is uncontested that the proposed
facility is intended to serve a 31-county area of Illinois and
Indiana. (Tr. at 26; C439.) Hoopeston’s written decision,
however, states that “the facility is necessary to accommodate
the waste needs of the City of Hoopeston and the Vermilion County
Area.” (Cll52 (emphasis added).) Thus, Hoopeston’s decision
finds only that the facility is necessary for a portion of the
service area, not the entire 31—county service area. It is well—
settled that it is the applicant who defines the service area,
and that the local decisioninaker has no authority to amend that
service area. (Metropolitan Waste Systems, Inc. v. Pollution
Control Board (3d Diet. 1990), 201 Ill.App.3d 51, 558 N.E.2d 785,
20
787.) Because the statute requires that the local decisionmaker
determine whether the proposed facility is necessary to
accommodate the waste needs of the service area as defined by the
applicant, and because siting approval can only be granted if the
decisionmaker finds that all criteria have been met, this Board
must reverse Hoopeston’s decision granting site approval to ILl.
We are not persuaded by ILl’s argument that Hoopeston had
agreed to the service area when entering into the host agreement.
Quite simply, the definition of the service area is not at issue
here. The issue is whether, in making its decision pursuant to
Section 39.2(a), Hoopeston found that criterion one was
satisfied. The host agreement, which was entered into before the
siting application was filed, and the Section 39.2 siting process
are separate and distinct. We do not believe that we can somehow
infer that Hoopeston really meant to state that the facility was
necessary for the entire service area, when the written decision
clearly refers only to Hoopeston and the Vermilion County area.
It took an affirmative act for the city council to use that
language5, and the result is fundamentally at odds with the
-
requirements of the statute. Section 39.2(e) states that the
local decisionmaker’s decision must be in writing and “in
-
conformance with subsection (a) of this Section.” (415 ILCS
5/39.2(e) (1992).) Subsection (a) contains the nine statutory
criteria, and criterion one clearly states that the facility must
be “necessary to accommodate the waste needs of the area it is
intended to serve.” (415 ILCS 5/39.2(a) (1992) (emphasis
added).) Thus, Hoopeston’s decision is -at odds with the
requirements of Section 39.2, and the grant of siting approval
cannot stand.
Further, we reject any implication that Hoopeston intended
the phrase “Vermilion County area” to mean the entire 31—county
service area. That 31—county area includes, among others, Cook,
Lake, and DeKaib Counties in Illinois, and Lake County in
Indiana. (C439.) We do not believe that those counties can
logically be construed as the Vermilion County area. We find
that in order to find that the application satisfied criterion
one, the local decisionmaker must specifically find that the
facility is necessary to accommodate the waste needs of the
entire service area, riot just a portion of that area. Because
Hoopeston’s written decision finds only that the facility is
necessary for Hoopeston and the Vermilion County area, the Board
finds that Hoopeston did not conclude that the facility was
necessary for the entire service area. We do not believe that
our finding in any way cuts against the intent of Section 39.2,
We note that in setting forth its decision on the other
eight criteria, the city council used the specific statutory
language set forth in subsection (a).
21
which was in part to allow local decisionmakers to determine
whether there is a need for a proposed landfill. Hoopeston had
its opportunity to make that decision, and Hoopeston concluded
that ILl had only demonstrated need as to Hoopeston and the
Vermilion County area. (Cll52.) Thus, Hoopeston’s decision
granting site approval is reversed.
We note that in some instances, where the Board finds an
error in a local decision, the- remedy has been a remand to the
local decisionmaker. Historically, the Board has remanded cases
where we have found a violation of fundamental fairness (CitY of
Rockford v. Winnebago County Board (November 19, 1987), PCB 87—
92, aff’d (2d Dist. 1989), 187 Ill.App.3d 79, 543 N.E.2d 505),
where the decisionmaker voted on only one criterion (Clean
Quality Resources v. Marion County Board (February 28, 1991), PCB
90-216), and where we were unable to determine whether the local
decisionmaker denied the siting request, or approved the request
with conditions (Land and Lakes Co. v. Village of Romeoville
(August 26, 1991), PCB 91—7). None of these circumstances are
present here. Hoopeston held the required local proceeding,
which was fundamentally fair, and made a determination on each of
the nine statutory criteria. However, Hoopeston found that the
facility was necessary for only a portion of the area intended to
be served, instead of for the entire area to be served, as
required by Section 39.2. There is no confusion about the
decision, and no reason to ask for, or allow, a new decision on
criterion one. Thus, remand is inappropriate, and the decision
must be reversed.
Having found that Hoopeston’s decision on criterion one is
fatally flawed, and therefore having reversed the decision
granting site approval, the Board would have ended its inquiry
here. However, the appellate court has held that this Board has
a statutory obligation to conduct a complete review of all
challenged criteria. (Waste Management, 530 N.E.2d at 692.)
Therefore, we will briefly address the remaining criteria.
Criterion two
Section 39.2(a) provides that the local decisionniaker must
determine whether the proposed facility is so designed, located,
arid proposed to be operated that the public health, safety, and
welfare will be protected. Hoopeston specifically found that
ILl’s proposed facility met that standard. (C1152.)
Petitioners contend that there is insufficient evidence in
the record to support Hoopeston’s finding that criterion two has
been satisfied. Petitioners state that although Gregory Kugler
of Andrews Environmental Engineering testified that the
safeguards of the design are sufficient to protect the public
health, safety, and welfare, Mr. Kugler discussed only a final
cap, final cover, and a leachate system. Petitioners maintain
22
that the record shows that the landfill will be placed directly
on top of the Glasford aquifer, which is the primary water source
for the area.6 Petitioners assert that they do not raise a
credibility issue, but allege that “t)here is simply nothing in
the record as to what protection will be afforded the public
health and safety that is based on competent evidence.” (Pet.
Reply Br. at 8.)
In response, ILl maintains that a review of the record shows
that ILl provided extensive evidence to support a finding that
the facility satisfies criterion two. ILl points to information
contained in its application, and to the testimony of Mr. Kugler.
ILl also contends that the issue of the proximity of the aquifer
was raised at the local hearing and in post-hearing submissions
to Hoopeston. ILl argues that it is not this Board’s role to
reweigh Hoopeston’s assessment of the evidence, and that the
local decisionmaker is to assess the credibility of expert
witnesses. (File v. D & L Landfill, 579 N.E.2d 1228.)
After reviewing the evidence and the parties’ arguments, the
Board finds that Hoopeston’s decision on criterion two is not
against the manifest weight of the evidence. ILl’s application
contained a hydrogeologic study, descriptions of leachate
collection and gas monitoring systems, and an explanation of the
system design. (C1-C435.) Mr. Kugler testified on the placement
and purpose of monitoring wells (Tr. at 164-165), methods for
determining a breach in the liner system (Tr. at 167—169), the
design of-the liner (Tr. at 183-187), arid leachate collection and
disposal procedures (Tr. at 203-204). As to the aquifer, that
issue was raised at the local level, and Hoopeston apparently
determined that the location of the landfill did not threaten the
public health, safety, or welfare. The Board is not to reweigh
the evidence, and we are not free to reverse simply because the
local tribunal credits one group of witnesses over another.
(FACT, 555 N.E.2d at 1184; Tate, 544 N.E.2d at 1195; File v. D &
L Landfill (August 30, 1990), PCB 90—94.) Although petitioners
allege that they do not raise issues of credibility, we find that
petitioners’ challenge to the “competency” of the evidence is
indeed a challenge to credibility. Based on the record before
us, the Board cannot say that Hoopeston’s decision was against
the manifest weight of the evidence.
Criterion three
Section 39.2(a) requires local decisionmakers to determine
6
The Board notes that our review of petitioners’
argument on this criterion, as with the other criterion, has been
complicated by petitioners’ failure to provide citations to the
record.
23
whether the proposed facility is located so as to minimize
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property.
Hoopeston found that the instant facility satisfies criterion
three. (C1152.)
Petitioners attack the testimony of Kenneth Cunningham, a
real estate appraiser who testified on behalf of ILl.
Petitioners state that Mr. Cunningham’s evaluation of the
comparable sales for the area was limited to agricultural
property, and that Mr. Cunningham does not describe the character
of the surrounding area and does not mention that the proposed
facility is located within a mile of the hospital, high school,
and several residential neighborhoods. Petitioners contend that
Mr. Cunningham’s statement that the landfill will have a positive
effect on the area is “an absolutely ridiculous conclusion.”
(Pet. Br. at 14.)
In response, ILl argues that petitioners misunderstand the
nature of this appeal, and states that this Board does not
reweigh or reanalyze the evidence. ILl maintains that the
persuasiveness of a witness’s testimony is for Hoopeston, not the
Board, to decide. ILl argues that Hoopeston’s decision on
criterion three is supported by evidence in the record, and
points out that the criterion requires only that the location
minimize incompatibility and effect on property values, not
guarantee that no fluctuation will result. (Clutts v. Beaslev
(5th Dist. 1989), 185 Ill.App.3d 543,. 541 N.E.2d 844.)
Based on the record before us, the Board cannot say that
Hoopeston’s decision was against the manifest weight of the
evidence. ILl provided a real estate evaluation performed by Mr.
Cunningham with its application. (C407-C422.) Mr. Cunningham
testified to his conclusions at the local hearing, stating that
the highest and best use of the surrounding area would remain the
same, and that therefore the property value of that area would
not be altered by the expansion of the landfill. (Tr. at 82)
ILl points out that the objectors did not refute Mr. Cunningham’s
conclusions at hearing, although Ms. Mott did state that she
disagreed with those conclusions. (Tr. at 315.) The Board is
not to reweigh the evidence, and we are not free to reverse
simply because the local tribunal credits one group of witnesses
over another. (FACT, 555 N.E.2d at 1184; Tate, 544 N.E.2d at
1195; File v. D & L Landfill (August 30, 1990), PCB 90—94.)
After reviewing the evidence and the parties’ arguments, the
Board finds that Hoopeston’s decision on criterion three is not
against the manifest weight of the evidence.
Criterion four
Criterion four requires the local decisioninaker to decide if
the facility is located outside the boundary of the 100-year
24
flood plain, or the site is flood-proofed. Hoopeston concluded
that ILl’s proposed facility is located outside the boundary of
the 100-year flood plain. (Cll52.) In their brief, petitioners
assert, without further argument, that the record is devoid of
any evidence on this criterion. However, as ILl points out, the
application submitted by ILl includes a certification from the
Illinois State Water Survey that the site is not within the flood
plain boundary (C234-C237), and Mr. Kugler testified to that
conclusion (Tr. at 32). Thus, the Board finds that Hoopeston’s
decision on criterion four is not against the manifest weight of
the evidence.
Criterion five
Section 39.2 also required the local decisionmaker to
determine whether the plan of operations for the facility is
designed to minimize the danger to the surrounding area from
fire, spills, or other operational accidents. Hoopeston found
that this criterion has been satisfied. (C 1152.)
Petitioners assert that Mr. Kugler’s testimony that this
criterion is satisfied is conclusory and without foundation.
Petitioners note that ILl’s application contains an operations
plan and a plan to mitigate accidents, fire and spills, but
assert that “(the application is not evidence, and the purpose
of the hearing was to present evidence to support the
application.” (Pet. Reply Br. at 10.) Petitioners contend that
ILl did not present any competent evidence on this issue.
ILl responds by arguing that the plans included in the
application are precisely what the criterion requires. ILl
contends that the appellate court has held that challenging an
alleged lack of detail in the plans, without any evidence from
objectors to demonstrate the inadequacy of the plans, is
insufficient to show that the decision is against the manifest
weight of the evidence. (FACT, 555 N.E.2d at 1178.)
Initially, the Board must respond to petitioners’ assertion
that the application is not evidence. Petitioners do not present
any authority for this assertion, and the Board hereby
specifically rejects such a claim. The application, along with
other documents properly filed by the applicant and any other
interested person, do indeed constitute evidence in a local
siting proceeding.7 Thus, we find that Hoopeston’s decision on
criterion five is not against the manifest weight of the
evidence. The application includes a plan of operations (C241—
C245), and a separate plan for mitigating accidents, fire, and
Of course, we do not imply that the hearing officer or
the local decisioninaker cannot exclude improper submittals.
25
spills (C247-C253). Petitioners have not pointed to any
impeaching or conflicting evidence, but merely again challenge
the witness’s credibility. This Board is not to reweigh the
evidence or make decisions on a witness’s credibility. That is
the province of the local decisionmaker. (Cf. Industrial Fuels &
Resources, 592 N.E.2d 148.)
Criterion six
Section 39.2(a) requires the local decisionmaker to decide
whether the traffic patterns to or from the facility are so
designed as to minimize the impact on existing traffic flows.
Hoopeston found that ILl’s application met this criterion.
(C1152.)
Petitioners contend that ILl’s evidence on this criterion
was testimony by Mr. Kugler and Mr. Cunningham, which was based
on an affidavit submitted by Chris Billing, who did not testify
at hearing. Petitioners maintain that there is no evidence
whether this affidavit is accurate, and that petitioners had no
opportunity to cross-examine the affidavit to establish if the
trafficcounts are inaccurate. Petitioners argue that the record
shows a negative impact on the area, and fails to support
Hoopeston’s finding on the criterion.
In response, ILl notes that the Billing affidavit was
admitted without objection, and contends that the affidavit is
persuasive that the facility satisfies criterion six. ILl
further maintains that administrative agencies are not required
to observe the technical rules of evidence. As to petitioners’
contention that the record shows a negative impact on the area,
ILl argues that the law does not require that a proposed site
have no impact on traffic, but only that the impact be minimized.
After reviewing the record and the parties’ arguments, the
Board finds that Hoopeston’s decision on criterion six is not
against the manifest weight of the evidence. It is true that Mr.
Billing was not present at the hearing to testify to the
conclusions contained in his affidavit. (C658-C665.) However,
petitioners have not presented any authority for a finding that
use of an affidavit in some way renders a decision against the
manifest weight of the evidence. We note that the Billing
affidavit is not the only evidence presented by ILl. Mr. Kugler
testified that not only did he review the traffic route with Mr.
Billing, but that he himself had reviewed the traffic route and
obtained traffic counts. (Tr. at 35-39.) Although the
presentation of evidence in the form of an affidavit, without the
appearance of the affidavit’s author at the hearing, may not be
the “best” evidence, we cannot say that use of the affidavit
renders the decision against the manifest weight of the evidence.
It is the province of the local decisionmaker to consider the
evidence, and to decide what weight to give to testimony and
26
exhibits. We find that Hoopeston’s decision on criterion six is
not against the manifest weight of the evidence.
CONCLUSION
In sum, we find that Hoopeston had jurisdiction to conduct
the local proceeding, and that the local proceeding was
fundamentally fair. However, the Board finds that Hoopeston’s
decision on criterion one does not comport with the requirements
of the statute, and we therefore reverse Hoopeston’s decision
granting site approval. As to challenged criteria two, three,
four, five, and six, we find that Hoopeston’s decision is not
against the manifest weight of the evidence.
ORDER
The Board hereby reverses the City of Hoopeston’s April 27,
1993 decision granting site approval to Illinois Landfills, Inc.
IT IS SO ORDERED.
R. Flemal dissented, and B. Forcade concurred.
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”.)
-
I, Dorothy H. Gunn, Clerk of the IllinOis Pollution Control
Board, hereby certify that the aboy~op~,jl4onand order was
adop~ed on the
~
day of
_______________,
1993, by a vote
of
~—/
.
~
~Ud
C—~DorothyM. G34~”n, Clerk
Illinois Po~JutionControl Board