ILLINOIS POLLUTION CONTROL BOARD
July
1,
1993
ST. CLAIR COUNTY,
)
Petitioner,
v.
)
PCB 93-51
)
(Landfill Siting Review)
VILLAGE OF SAUGET,
)
VILLAGE OF SAUGET PRESIDENT
)
and BOARD OF TRUSTEES,
and G.J.
)
LEASING COMPANY,
INC.,
a
)
corporation d/b/a CAHOKIA
)
MARINE SERVICE,
)
Respondents.
JAMES T. SCOTT, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF OF
PETITIONER;
JOSEPH
G. NASSIF AND LINDA W. TAPE,
of COBURN,
CROFT, AND PUZELL,
APPEARED ON BEHALF OF RESPONDENT G.J. LEASING COMPANY,
INC.; and
HAROLD
G.
BAKER APPEARED ON BEHALF OF RESPONDENT VILLAGE OF
SAUGET.
OPINION AND ORDER OF THE
BOARD
(by J. Theodore Meyer):
This matter
is before the Board on St. Clair County’s
(County) March
11,
1993 petition for review.
The County filed an
amended petition on May
5,
1993.~ The County seeks review of the
Village of Sauget’s
(Sauget)
February
2,
1993 decision granting
local site approval to G.J. Leasing Company,
Inc., d/b/a Cahokia
Marine Service
(CMS)
for a waste transfer station.
A public
hearing on the petition for review was held on May 7,
1993,
in
Sauget,
Illinois.
The Board’s responsibility in this matter arises from
Section 40.1 of the Environmental Protection Act (Act).
(415
ILCS 5/40.1
(1992).)
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 siting approval
provision for new regional pollution control facilities,
set
forth
in Section 39.2
of the Act.
More generally, the Board’s
There were several preliminary motions
in this case,
including two motions to dismiss.
Those matters are fully
discussed in the Board’s orders of April 8,
1993, May
5,
1993,
and May 20,
1993,
and will not be reiterated here.
2
functions are based on the series of check$ and balances integral
to Illinois’ environmental system:
the Board has responsibility
for rulemaking and principal adjudicatory func~:ions,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
CMS filed its application for local siting approval for a
waste transfer station with Sauget on August
7,
1992.
(Cl-Cl74.)
CNS subsequently filed a supplemental request on November
4,
1992.
(C18l—C361.)
CMS requested local site approval for
a
waste transfer facility to handle non—hazardous special and
municipal waste.
The transfer station would be located on CMS’
existing bulk transfer terminal facility, on the eastern bank of
the Mississippi River.
(C187-C188.)
Sauget held a public
hearing on CMS’ application on November 10,
1992.
(C363-C419.)
On February 2,
1993,
Sauget adopted a resolution granting site
approval to CMS.
(C5l0-C529.)
The County filed this petition
for review with the Board on March 11,
1993,
and filed an amended
petition on May 5,
1993.
STATUTORY
FRAMEWORK
At
the
local
level,
the
siting
process
is
governed
by
Section
39.2
of
the
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 Dis~osa1,Inc.
v. County
of McLean (4th Dist.
1991),
207 Ill.App.3d 352,
566 N.E.2d
26,
29;
Waste Manac~ementof 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
I1l.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
3
because the lower tribunal credits one group of witnesses and
does not credit the other.
(Fairview Area Citizens Taskforce v.
Pollution Control Board
(3d Dist.
1990),
198 IL1.App.3d
541,
555
N.E.2d 1178,
1184; Tate v. Pollution Control Board
(4th Dist.
1989)
,
188 Ill.App.3d 994,
544 N.E.2d 1176,
1195; Waste
Management of Illinois.
Inc.
v.
Pollution Control Board
(2d Dist.
1989),
187 Ill.App.3d 79,
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 Ill.App.3d 897,
579 N.E.2d
1228.
However, where an applicant made
a prima fade 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 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.)
The County has not
raised any jurisdictional issues,
but has raised a question of
fundamental fairness.
Because the issue of fundamental fairness
is a threshold matter, the Board will consider that issue first.
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
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.)
4
The County contends that the use of a videotape at the local
hearing violated fundamental fairness.
The videotape was
presented by CMS, and portrayed the transfer o:~New York
municipal waste from railcars to trucks at CMS
in the summer of
1992.
The videotape was produced by the Agency, and edited with
its permission.
CMS submitted the videotape to show a municipal
solid waste operation in progress.
(C367; C373-C383.)
The
County argues that fundamental fairness was violated in three
ways:
1) use of the videotape foreclosed any opportunity for
cross examination of the persons appearing on the tape;
2)
the
videotape had been edited to eliminate reference to the fact that
compliance with Agency requests had been obtained by injunctive
relief from the circuit court, and that any disclaimer which
preceded the tape was insufficient to remedy this error;
and
3)
the use of any videotape without a proper foundation is
fundamentally unfair.
In response, CMS contends that the information on the tape
was more in the form of a pictorial presentation or public
comment than testimony, and points out that the Board has
previously upheld the limited use of unsworn “testimony” as
public comment.
(Industrial Fuels
& Resources/Illinois v. City
of Harvey (September
27,
1990), PCB 90-53, rev’d on other grounds
227 I1l.App.3d 533,
592 N.E.2d
148.)
CMS also argues that the
record clearly shows that the edited videotape was indeed a full
and fair representation of the facts,
and states that the
County’s own witness stated at the Board hearing that there was
nothing edited from the tape which was relevant to any of the
statutory criteria.
(Tr. at 39.)
As to the County’s improper
foundation argument, CMS maintains that this argument was not
raised at either the local hearing or in the petition for review,
so that the argument cannot be raised now.
After reviewing the transcript of the local hearing, the
Board concludes that the County has waived any claim that the use
of the videotape was fundamentally unfair.
There was no
objection,
made by the County or anyone else at the hearing, to
the use of the videotape.2
(C367,
C369—C382.)
At the conclusion
of the videotape,
Sauget’s village attorney asked if there were
any questions,
and received no response.
(C382.)
It is well-settled that a failure to object at the original
proceeding generally constitutes
a waiver of the right to raise
an issue on appeal.
(E
&
E Hauling,
Inc.
v. Pollution Control
Board
(1985),
107 Ill.2d
33,
481 N.E.2d
644,
666.)
The
2
The County was represented at the local hearing by
a
county board member.
As CNS points out, the County did not
present any witnesses at the hearing,
nor cross-examine any
witnesses.
5
requirement that an objection be raised at the local level has
been applied
in the context of claims of bias or predisposition
by local decisionmakers
(FACT,
555 N.E.2d at 1t80—118l; Waste
Management of Illinois Inc.
v. Pollution Control Board
(2d Dist.
1988),
175 Ill.App.3d 1023,
530 N.E.2d
682,
695;
A.R.F. Landfill
v. Pollution Control Board
(2d Dist.
1988),
174 Ill.App.3d 82,
528 N.E.2d 390,
394), and to objections that fundamental fairness
was violated by the appearance of a county assistant state’s
attorney on behalf of an objector (Waste Management of Illinois
Inc. v. Pollution Control Board
(2d Diet.
1988),
175 Ill.App.3d
1023,
530 N.E.2d 682,
694).
The Board finds that the requirement
also applies to claims that the admission of certain evidence
violated fundamental fairness.
An objection must be raised at
the local level,
or the claim will be waived at the Board level.3
Therefore, we find that the County waived its claim of violations
of fundamental fairness by failing to raise any type of objection
to the videotape at the
local hearing.
CHALLENGED CRITERIA
As noted above,
Section 39.2(a)
of the Act provides that
local decisionmakers are to consider as many as nine criteria
when reviewing an application for siting approval.
When
reviewing a local decision on the criteria, this Board must
determine whether the local decision is against the manifest
weight of the evidence.
The County has challenged Sauget’s
findings that criteria one
(necessity)
and eight
(consistency
with any solid waste management plan) have been satisfied.
Need
Section 39.2(a) (1)
states that local siting approval shall
be granted only if the local decisionmaker finds that “the
facility is necessary to accommodate the waste needs of the area
it is intended to serve.”
Sauget found that this criterion had
been satisfied.
(C5l9.)
The County contends that this decision
was against the manifest weight of the evidence, because the
proposed service area was never conclusively defined.
The County
notes that it
is the applicant, not the local decisionmaker, who
defines the proposed service area.
(Metropolitan Waste Systems~
Inc.
v. Pollution Control Board
(3d Dist.
1990),
201 Ill.App.3d
51,
558 N.E.2d
785.)
However, the County argues that the service
area in this case was defined in terms of regions and not in
terms
of specific governmental corporate entities from which
quantifiable data regarding waste could be assembled.
The County
We note that the County does not claim that
it was
in
some way prevented from raising an objection to the videotape,
or
that an exception to the general rule of waiver applies
in this
case.
6
maintains that the service area must be c1e~rlydefined, and that
failure to do so would allow an applicant to demonstrate
compliance with this criterion by mere testimoiy that there
is a
generalized need for the facility.
Thus, the County argues that
because the proposed service area was never clearly defined,
Sauget’s decision that criterion one was met is against the
manifest weight of the evidence.
In response, CMS contends that it defined the proposed
service area in its application as “the waste transfer station
may handle municipal solid waste
(‘MSW’)
from areas outside and
inside the State of Illinois, including the Village of Sauget and
proximate areas”
(C8,
C189), and that the application also stated
“(t)he transfer station at
CMS)
would serve the need for a waste
transfer station for waste moving into and around Illinois
because it
is centrally located”.
(Cl89.)
CMS also points out
that one of its experts stated that “t)he
landfills the transfer
facility
is designed to serve are the central and southern
portion of Illinois”.
(C399.)
CNS further states that its
expert testified that he believed that the proposed facility met
the requirements of Section 39.2(a)(1).
Finally, CMS maintains
that no evidence was offered at the local
level which called the
definition of the service area into question.
Thus,
CMS argues
that the County has not met its burden of proving that Sauget’s
decision on criterion one was against the manifest weight of the
evidence.
After reviewing the record and the arguments of the parties,
the Board finds that Sauget’s decision was not against the
manifest weight of the evidence.
It is true that this service
area is loosely defined.
However,
CMS specifically refers to
“areas outside and inside the State of Illinois”,
“waste moving
into and around Illinois”, and landfills
in the central and
southern portions of
Illinois.
These statements,
coupled with
expert testimony that the facility met the need criterion,
are
sufficient to support Sauget’s finding.
The Board has previously
upheld a service area defined as 63
from a 50—mile radius of the
facility, with the remainder from “greater distances.”
(Waste
Management of Illinois v. Will County
(PCB 82—141), April
7,
1983,
aff’d Waste Management of Illinois
v. Pollution Control
Board
(3d Dist.
1984),
122 Ill.App.3d 639,
461 N.E.2d
542.)
The
Board also rejected arguments that the service area was “too
large.”
(Clean Quality Resources.
Inc.
v. Marion County Board
(August
26,
1991), PCB 91—72; Industrial Fuels
&
Resources/Illinois,
Inc.
v.
City of Harvey
(September
27,
1990),
PCB 90-53,
rev’d on other grounds Industrial Fuels
&
Resources/Illinois,
Inc.
v.
Pollution Control Board
(1st Dist.
1992),
227 Ill.App.3d 533,
592 N.E.2d 148.)
The Board again emphasizes that we are not to reweigh the
evidence, and that
a decision is against the manifest weight of
the evidence only if the opposite result
is clearly evident,
7
plain,
or indisputable from a review of the evidence.
(Harris
V.
p~ (4th Dist.
1983),
115 Ill.App.3d 762,
451 N.E.2d 262,
265.)
We cannot say that the evidence as to the service area is so
lacking as to render Sauget’s decision against the manifest
weight of the evidence.
Solid Waste Management Plan
Section 39.2(a) (8)
of the Act states that local siting
approval shall be granted only if the local decisionmaker finds
that “if the facility is to be located in a county where the
county board has adopted a solid waste management plan
...
the
facility
is consistent with that plan.”
The counties of Madison,
St.
Clair,
and Monroe have adopted
a joint solid waste management
plan.
Sauget specifically found that the proposed facility does
not conflict with that plan,
and that the proposed facility
is
consistent with the plan.
(C52l.)
The County contends that Sauget’s finding that the proposed
facility is consistent with the solid waste management plan is
against the manifest weight of the evidence.
The County states
that although Sauget’s resolution granting siting approval refers
to testimony and comment from the County,
it does not refer to a
comment from the Madison County Board.
The County maintains that
this comment objects to the siting of the facility on the grounds
that it is inconsistent with the solid waste management plan.
(C433-C436.) The County asserts that Sauget’s failure to address
Madison County’s comment, while noting that the County did not
object
(at the local level)
on grounds of inconsistency with the
plan,
“suggests” that Sauget failed to consider Madison County’s
objection.
Thus, the County argues that Sauget’s decision “to
rely upon the opinion of
CMS’
expert without fully considering
and addressing Madison County’s allegations of inconsistency was
against the manifest weight of the evidence”.
(Pet.
reply brief
at 7.)
In response, CMS argues that even viewing the evidence in
the record in a light most favorable to the County,
at best,
conflicting views were presented to Sauget concerning consistency
with the solid waste management plan.
CMS states that its
application for siting approval indicates that the proposed
facility is consistent with the plan (C18,
C196—Cl97),
and that
one of its experts testified as to his opinion that the proposed
facility is consistent with the plan
(C405).
CMS maintains that
conflicting testimony is not a basis for this Board to reverse a
local decisionmaker’s finding.
(Waste Hauling. Inc.
v. Macon
County Board
(May 7,
1992), PCB 91-223.)
Thus,
CMS contends that
the County has not met its burden to prove that Sauget’s decision
is against the manifest weight of the evidence.
The Board finds that Sauget’s decision that the proposed
facility is consistent with the solid waste management plan is
8
not against the manifest weight of the evidence.
As CMS points
out,
it presented testimony that the facility is consistent with
the plan.
(C18;
C196-C197; C405.)
The only eiidence that the
County has pointed to against that conclusion is a letter from
the Madison County Board,
received as a comment in the local
record.
That letter, while mentioning the plan and voicing a
number of concerns about the siting of the proposed transfer
station, does not specifically state a belief by Madison County
that the facility is inconsistent with the solid waste management
plan.
(C433-C436.)
Even assuming that this letter creates
conflicting evidence on the issue of consistency, we cannot
reverse merely because the local decisioninaker credits some
evidence over other evidence.
(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.)
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 Ill.App.3d 897,
579 N.E.2d 1228.)
The Board rejects the County’s claim that Sauget’s mention
of testimony by the County without referring to Madison County’s
comment “suggests” that Sauget did not consider that comment.
There is no requirement that a local decisionmaker fully discuss
all evidence in the record, nor provide an analysis of its
decision on each criterion.
The Act requires only that the local
decisioninaker issue
a written decision, setting forth its
findings on each applicable criterion.
(415 ILCS 5/39.2(e)
(1992).)
Madison County’s letter is contained in the local
record as a public comment.
The County has not alleged that the
letter was not available to the individual village board members,
or given any other proof that Madison County’s comment was not
considered.
We find no evidence that Sauget failed to consider
all testimony and comments presented during the course of the
local proceedings.
CONCLUSION
In sum, we find that the County waived its claim that
fundamental fairness was violated by the use of a videotape at
the local hearing,
by failing to previously raise any objection
to the use of that tape.
After reviewing the record and the
parties’ arguments,
the Board finds that Sauget’s decision that
the proposed facility meets criteria one and eight is not against
the manifest weight of the evidence.
Thus,
the Board affirms
Sauget’s decision granting local siting approval to CMS.
This opinion constitutes the Board’s findings of fact and
conclusions
of
law.
9
ORDER
The Board finds that St. Clair County waiqed its claim that
fundamental fairness was violated by the use of a videotape at
the local hearing, by failing to previously raise any objection
to the use of that tape.
The Board also finds that the decision
of the Sauget Village Board that the proposed facility meets
criteria one and eight is not against the manifest weight of the
evidence.
Thus,
the Board affirms Sauget’s February 2,
1993
decision granting local siting approval to CMS.
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”.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the abo
opinion and order was
adopted on the /‘~
—
day of
________________,
1993, by
a vote
of
7._,~i
.
7,2
~L.
Dorothy M. 9~1n,Clerk
Illinois Pc~~~ution
Control Board
