ILLINOIS POLLUTION CONTROL BOARD
July
1,
1993
EUGENE
DALY,
JANE SCHNIT,
CARL WILLIAMS,
SOUTH COOK
)
COUNTY
ENVIRONMENTAL
ACTION
)
COALITION,
)
Petitioner,
v
)
PCB 93-52
)
(Landfill
Siting
Review)
VILLAGE
OF ROBBINS,
AND THE
ROBBINS RESOURCE RECOVERY
COMPANY,
Respondent.
CITIZENS
FOR A BETTER
ENVIRONMENT,
Petitioner,
V.
)
PCB
93—54
)
(Landfill
Siting
Review)
VILLAGE OF ROBBINS,
AND
THE
ROBBINS RESOURCE RECOVERY
)
COMPANY,
Respondent.
KENNETH
P.
DOBBS,
ESQ. APPEARED
ON BEHALF OF THE SOUTH COOK
COUNTY ENVIRONMENTAL
ACTION COALITION;
KEITH
I.
HARLEY,
CHICAGO LEGAL CLINIC, APPEARED
ON BEHALF OF JANE
SCHNIT,
EUGENE
DALY,
AND THE SOUTH COOK ENVIRONMENTAL
ACTION
COALITION;
KEVIN GREENE APPEARED ON BEHALF
OF CITIZENS
FOR BETTER
ENVIROMENT;
JAMES
T. HARRINGTON,
ROSS
& HARDIES,
APPEARED
ON BEHALF OF THE
ROBBINS RESOURCE RECOVERY
COMPANY;
MARX SARGIS, WINSTON
& STRAWN, APPEARED
ON BEHALF
OF THE ROBBINS
RESOURCE RECOVERY
COMPANY;
MARX STERK, ODELSON
& STERK,
APPEARED ON BEHALF
OF THE VILLAGE
OF
ROBBINS.
OPINION AND ORDER
OF THE BOARD
(by G.
T.
Girard):
2
This
matter
is
before
the
Board
on
thii:d-party
appeals
of
a
decision
granting
site
location
suitability
approval
to
a
new
regional
pollution
control
facility.
These
ap1~eals are
filed
pursuant
to
Section
40.1(b)
of
the
Environmental
Protection
Act
(Act)
(415
ILCS
5/1
et
seg.(1992)).
The
Board’s
responsibility
in
this
matter
arises
from
Section
40.1
of
the
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
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.
Eugene
Daly,
Jane
Schmit,
Carl Williams and Cook County
Environmental
Action
Coalition
(CCEAC)
filed
their
appeal
on
March
12,
1993,
and
Citizens
for
A
Better
Environment
(CBE)
filed
its
appeal
on
March
15,
1993.
On
March
25,
1993,
the
Board
consolidated
both
appeals
because
Eugene Daly, Jane Schmit,
Carl
Williams,
CCEAC,
and
CBE
(petitioners)
all
seek
review
of
the
decision
of
the
Village
of
Robbins
(Village)
granting
site
location
suitability
approval
to
the
Robbins
Resource
Recovery
Company
(RRRC).
Hearings
were
held
on
May
11,
1993,
and
May
12,
1993,
in Robbins, Cook County,
Illinois, which were attended by
members of the public.
BACKGROUND
RRRC
originally requested
(1988 Application)
local siting
approval
from
the
Village
in
June
1988
for
a
facility
to
recover
recyclable
materials
and
energy
from
municipal
solid
waste.
(C0000l9.’)
The Village approved siting of the proposed facility
‘The
Village record will be cited as “C”.
Village
exhibits
will
be
cited
as
“V.
Exh.
H.
Applicant’s exhibits
contained
in
the
Village
record
will
be
cited
as
“Appi.
Exh.
“.
The
PCB
hearing
transcript
will
be
cited
as
“Tr.
at
“.
References
to
the
Robbins
public
hearing
on
December
22,
1992,
will
be
cited
as
“Pr.
Vol.
—
at
“.
Petitioner’s
Brief
in
PCB93—52
will
be
cited
as
“Daly
Br.
at
“.
Petitioner’s
Reply
Brief
in
PCB93—52
will
be
cited
as
“Daly
Rep.
Br.
at
“.
Petitioners
Brief
in
PCB93-54
will
be
cited
as
“CBE
Br.
at
“.
3
on October
25,
1988.
(C0000l9.)
There was no appeal of that
local
siting decision.
(C000020.)
On
July
19,
1989,
RRRC
submitted
coordinated
permit
applications
to
the
Illinois
Environmental
Protection
Agency
(IEPA)
for the facility.
(C000019.)
On June 11,
1990,
IEPA
issued
a
Construction
Permit/PSD
Approval
(air
permit),
Development
Permit
(solid
waste)
and
a
Water
Pollution
Control
Permit.
(C000019
and
C000l02
A—Z.)
On
July
9,
1990,
CBE
requested
of
the
United
States
Environmental
Protection
Agency
(USEPA)
an administrative review of the Prevention of Significant
Deterioration
(PSD)
approval.
Additionally, on July
16,
1990,
the Illinois Attorney General also filed
a request for
administrative review.
(C0000l9.)
On July 31,
1991,
USEPA denied the Attorney General’s
petition,
“indicating
that the petition for review had failed to
identify
either
a clear error of fact or law,
or an important
policy or exercise of discretion that warrants review”.
(C0000l9.)
CBE’s petition for review was denied on August 27,
1991,
by USEPA on a similar ground.
(C000019.)
In 1991, three and a half years after the original siting
approval by the Village,
the Illinois Attorney General challenged
the siting approval
in the Circuit Court of Cook County.
The
Circuit
Court
found
that
the Village of Robbins had not
sufficiently
complied
with
the
notice
requirements
set
forth
in
Section
39.2
of the Act and thus held that the Village had no
jurisdiction
to
grant
local
siting approval.
(C000020.)
RRRC
filed
a motion for reconsideration with the court.
(C000020.)
The
issue
was
resolved
by
a
Consent
Decree
addressing
environmental
issues
entered
on
April
12,
1993,
(People
of
the
State
of
Illinois
v.
Robbins
Resource
Recovery
Company,
No.
91CH11956,
Circuit Court,
Chancery Division,
Cook County,
Illinois
(1993))
together
with
a
Court
Order
finding
that
the
Motion
for
Reconsideration was mooted by the second siting
hearing.
(RRRC
Br.
at
3.)
Robbins
Recovery
submitted
the
second
request
for
siting
approval
of
a
regional
pollution
control
facility
(Application)
to
the
Village
on
September
21,
1992.
(C000002—000467.)
The
Application
details
that
the
proposed
facility
would
be
located
on
an
approximately
16.11
acre
(C000174)
vacant
site
in
the
Village
of
Robbins
in
southern
Cook
County.
(C000020.)
The
There
are
briefs
from
two
respondent’s
in
PCB93—52.
Brief
of
the
Village
of
Bobbins
will
be
cited
as
“Robbins
Br.
at
“.
Brief
of
RRRC
will
be
cited
“RRRC
PC393-52
Br.
at
“.
Reply
Brief
of
RRRC
will
be
cited
as
“RRRC
PCB93-52
Rep.
Br.
at
“.
In
PCB93—
54,
RRRC
Brief
will
be
cited
as
“RRRC
Br.
at
“,
and
RRRC
Reply
Brief
will
be
cited
as
“RRRC
Rep.
Br.
at
“.
4
facility
is
designed
to
recover
recyclable
materials
and
energy
from
1,600
tons
per
day
of
non—hazardous
municipal
solid
waste.
(C000024.)
At
full
design
capacity,
the
facility
could
process
584,000
tons
per
year
of
municipal
solid
waste.
(C000024.)
The
facility
will
include
two
materials
recovery
and
fuel
preparation
processing
lines,
two
refuse-derived,
fuel—fired
circulating
fluidized
bed
combustion
systems,
two
“state—of—the—art”
air
pollution
control
systems
and
a
single
steam—driven
turbine
generator
designed
to
produce
approximately
40,000
KW
net
output
of
electric
power.
(C000024.)
The
facility
is
designed
to
recover
recyclable
materials
comprising
at
least
25
percent
of
the
municipal
solid
waste
stream
prior
to
combustion.
(C000029.)
A
public
hearing
on
the
Application
before
the
Village
was
held
December
22,
1992,
which
included
both
transcribed
testimony
and
sworn
statements
(presented
in
the
records
as
three
volumes
of proceedings).
On February
9,
1993,
the
Village
Board
of
Trustees unanimously adopted an ordinance
(C005330-005336) which
found
that
the
Application
was
in
conformity
with
the
provisions
of
the
Act,
including
the
applicable
criteria
in
Section
39.2
of
the
Act,
and
granted
siting
approval.
On
appeal
before
the
Board,
Daly
et
al.
(PCB
93—52)
allege
that
the
proceedings before the Village were fundamentally unfair
and
ask
that
the
matter
be
remanded
for
a
new
hearing
and
new
decision.
CBE
alleges
(PCB
93-54)
that
the
Village’s
findings:
that
the
facility
is
necessary
to
accommodate
the
waste
needs
of
the
intended
service
area
(Section
39.2(a)
(1));
that
the
facility
is
located outside the boundary of the 100
year
flood
plain
or
is
flood-proofed
(Section 39.2(a) (4)); and that the plan of
operation for the facility is designed to minimize danger in the
surrounding area
(Section 39.2(a) (5))
are against the manifest
weight of the evidence.
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.
The Village found that
RRRC
met
its burden on all the criteria.
(C005330—005336.)
CBE
challenges the Village’s findings on criteria
#1,
#4, and #5.
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
v.
County of
McLean
(4th Dist.
1991),
207 Ill.App.3d 352,
566 N.E.2d 26 McLean
5,
County.)
Additionally, the Board must review the areas of
jurisdiction and fundamental fairness.
Sectio’-~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,
Inc.
v. Pollution Control Board
(2d Dist.
1983),
116 Ill.App.3d 586,
451 N.E.2d 555,
562,
aff’d in part
(1985)
107 Ill.2d 33, 481 N.E.2d 664
(E & E Hauling).)
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.
(415 ILCS 5/40.1
(1992); E
&
E Hauling,
451 N.E.2d at
562.)
While no jurisdictional issues are presented,
Daly et al.
raises a fundamental fairness issue.
FUNDAMENTAL FAIRNESS
Section 40.1 of the Act requires the Board to review the
proceedings before the local siting authority to assure
fundamental fairness.
In E
& E Hauling,
Inc.
v. IPCB
(2d Dist.
1983),
116 Ill.App.3d 586,
594,
451 N.E.2d 555,
564,
aff’d
in
part
(1985),
107 Ill.2d
33, 481 N.E.2d
664,
the appellate court
found that although citizens before a local decision—maker 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.
(See also
Industrial Fuels,
227 Ill.App.3d 533,
592 N.E.2d 148; Tate,
188
Ill.App.3d 994,
544 N.E.2d 1176.)
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.
IPCB
(2d Dist.
1989),
175 Ill.App.3d 1023, 530 N.E.2d
682.)
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,
117 PCB 117.)
Petitioners allege that the Village of Bobbins violated the
fundamental fairness requirement of Section 40.1(a)
of the Act
while conducting the public hearing on December 22,
1992.
(Daly
Br.
at 20.)
Specifically, petitioners allege that the hearing
failed to attain the minimum requirements of fundamental fairness
in at least four ways:
1.
the ground rules established by the Village for the
conduct of the hearing were violated and were not
consistently applied or enforced;
6
2.
in
design
and
execution,
the
entire
proceedings
were
characterized by unnecessary haste;
3.
the
proceedings
were
not
conducted
in
a
manner
consistent
with
the
requirements
of
an
adjudicatory
proceeding;
4.
the manner in which the public hearing was conducted
prevented
public
participation
necessary
to
create
a
complete record.
(Daly
Br.
at
20.)
The
Trustees
of
the
Village
of
Bobbins
(Bobbins
Trustees)
passed
Resolution
12-2-92
on
December
2,
1992,
which
established
the
date
and
rules
for
the
public
hearing
on
the
RRRC
application.
(C001804-001814.)
The
public
hearing
was
scheduled
for
December
22,
1992,
and
was
scheduled
to
begin
at
6:30
p.m.
The
Hearing
Officer
appointed
by
the
Village
was
Mark
Sterk,
from
the
firm
of
Odelson
and
Sterk,
Ltd.,
the
firm
also
serves
as
attorneys for the Village of Bobbins.
(Tr. at 222—223.)
The public hearing was held in the Bobbins Recreation
Training Center in Bobbins, Illinois.
The hearing commenced at
approximately 6:40 p.m.
(Pr. Vol.
I at
6;
Tr.
at
32,
73,
166,
167.)
From 6:00 p.m.
to 6:40 p.m.,
a “rally” was staged in the
Training Center by the Independent Study Commission supporting
RRRC.
(Tr.
25—32,
70—75,
162—168, 344—345.)
Were The Public Hearing Ground Rules Violated?
The first allegation by petitioners
is that ground rules
established by the Village for conduct of the hearing were
violated and were not consistently applied or enforced.2
Petitioners offered three alleged examples to make their case:
(1)
a pre-hearing “rally” permitted supporters of
RRRC
to testify
first during the proceedings;
(2) Hearing Officer Sterk’s
repeated comment during the hearing that written comments be
sworn; and
(3) Mr. Sterk’s “arbitrary enforcement of the five
minute rule”.
(Daly Br.
at 20-23.)
These three examples will be
explored in the discussion below.
Petitioners allege that the pre—hearing “rally” permitted
RRRC supporters to testify first during the proceedings.
(Daly
Br.
at 20-21.)
Petitioners maintain that this is a violation of
the rules established by Bobbins for conduct of this hearing.
(C001807—00l814.)
Basically, petitioners argue that since the
2
The Board has previously held that we only review local
ordinances
(rules)
to determine whether fundamental fairness was
violated.
(Gallatin,
(PCB 91—256); Laidlaw,
(PCB 91—89,90).)
7
“rally”
was
held
in
the
same
hall,
immediately
prior
to
the
hearing,
that
it
should
have
been
governed
by
~he
rules
established
for
the
hearing.
Respondents
replied
that
the
“rally”
was
not
part
of
the
public
hearing.
(RRRC
PCB93-52
Rep.
Br.
at
6.)
Respondents
acknowledged
that
“certain
proponents
of
the
proposed
facility
held
a
public
meeting
prior
to
the
public
hearing”.
(RRRC
PCB93—
52
Br.
at
9.)
This
“rally”
was
organized by Mr. Rudy Bouie,
Chairman of an independent Study Commission.
(Tr.
at 26-27,
46-
48,
70;
RRRC
PCB93—52
Br.
at 9.)
The nature of the “rally” and its relationship to an
adjudicatory proceeding such as
a local landfill siting hearing,
will be discussed
in more depth later.
On the issue of whether
the “rally” violated the ground rules established by the Village
for conduct of the hearing, the Board finds that nothing
in the
Board’s hearing transcript or the Village record indicates that
the “rally” was part of the landfill siting hearing,
and
therefore,
activities at the “rally” were not governed by the
Village hearing rules.
Further, the Board finds that the “rally”
occurring before the hearing is not a violation of the Village
hearing rules.
According to petitioners,
the second violation of the
Robbins rules was the reported statements by Hearing Officer
Sterk that written comments be sworn.
(Daly Br.
at
7,
21—23,
34.)
Respondents properly note that Section 39.2(c)
of the Act
imposes no requirement for written comments to be sworn when
submitted within
30 days following the hearing.
The Bobbins’
hearing rules likewise state that any written comment postmarked
during the 30 day post-hearing comment period would be
considered.
(C00l811.)
Respondents argue that there was no testimony that anyone
was confused by Hearing Officer Sterk’s remarks, or failed to
submit written comments because they were unable to submit
“sworn” testimony.
Second,
respondents maintain that Mr.
Sterk’s
instructions
“were inadvertent because he had prepared the
ordinance. ..and did not recall even giving an instruction that
written comments be sworn”.
(RRRC PCB93-52 Rep.
Br.
at
12; Tr.
at 268-269.)
Third,
any and all written comments received by the
Village were incorporated into the record,
in accordance with
Rule
6.
(Tr. at 255.)
Finally, none of the written submissions
received during the
30 day comment period were “sworn”.
(RRRC
PCB93—52 Rep.
Br.
at
13.)
The Board notes that Mr. Sterk made numerous references
during the hearing about citizens making statements for the
record
in this case.
(Pr.
Vol.
1 at 33,
59,
91,
106,
133,
140,
168.)
In some instances,
he did specify “sworn statements”.
(Pr.
Vol.
1 at 33,
59,
91,
168.)
In other cases,
he mentioned
8
the
word
“statement”,
without
adding
the
qualifier
“sworn”.
(Pr.
Vol.
1
at
106,
133,
140.)
Based
on
the
record
in
this
case,
the
Board
finds
that
Mr.
Sterk’s
use
of
the
term
“sworn
statement”
did
not
materially
affect
opponents’
opportunities
or
abilities
to
provide
written
comments
concerning
RRRC.
According
to
petitioners,
the
“third
and
most
significant
violation
was
Mr.
Sterk’s
arbitrary enforcement of the five
minute
rule”.
(Daly
Br.
at
23.)
Petitioners
cite
the
testimony
of
opponent
Kevin
Greene,
who
refused
to
be
cut
off
after
five
minutes.
Mr.
Greene’s
testimony
covers
15
pages.
(Pr.
Vol.
1
at
275-290.)
By
contrast,
petitioners
cite
three
opponents
who
were
cut
off:
Carl
Williams
after
3
1/2
pages
(Pr.
Vol.
1
at
263—
266);
Dr.
Ginsburg
after
5
pages
(Pr.
Vol.
1
at
170-175);
and
Joseph
Dangel
after
4
pages
(Pr.
Vol.
1
at
181-184).
Petitioners
also
allege
inconsistencies
in
Mr.
Sterk’s
enforcement
time-
keeping mechanisms.
(Daly Br.
at 24.)
Respondents
do
not
believe
that
the
Village
rules
or
the
conduct
of
the
hearing
which
held
opponent’s
comments
to
an
initial
five
minute
period
were
unfair.
(RRRC
PCB93-52
Rep.
Br.
at
14,
15.)
Respondents
maintain
that
both
supporters
and
opponents
were
subject
to
the
five
minute
rule;
both
opponents
and
supporters
were
allowed
the
opportunity
to
make
statements
after everyone had an initial five minute period; there was no
limit on the number of citizens testifying;
and the applicants’
ten witnesses were limited to a total of
2 hours.
(RRRC PCB93-52
Rep. Br.
at 15-16.)
The Board finds that the record and testimony does not
support Petitioner’s allegations that limiting citizen comments
to five minutes was unfair
in design or execution.
Mr.
Sterk
testified that he did not try to enforce this limit in a harsh or
unreasonable manner.
(Tr.
at 284.)
The record supports this
conclusion.
Petitioner’s assertion that their case is proved by
opponent Kevin Greene’s adamant refusal to relinquish the floor
after five minutes would lead any opponent to adopt this tactic
to disrupt future landfill siting hearings.
The five minute rule
in this case balanced the individual’s interest with society’s
interest in effective and efficient governmental operation,
especially since individuals had the opportunity to continue
public testimony after everyone had an initial five minute
opportunity.
(Waste Management of Illinois,
Inc.
v. Pollution
Control Board
(2d Dist.
1989),
187 Ill.App.3d 79,
543 N.E.2d 505,
507.)
Were The Proceedings Characterized BY Undue Haste?
Petitioners argue that several features of the proceedings
were characterized by undue haste which discouraged public
participation.
Petitioners allege that several events support
their contentions:
scheduling the public hearing on December
22,
9
1992; holding only one public
hearing;
beginning
the
public
hearing at 6:30 p.m.;
limiting opponents’ testimony to five
minutes; and beginning opponents’ testimony at 11:45 p.m.
(Daly
Br.
15,
25—30.)
Petitioners argue that the Village conducted the entire
proceedings with undue haste.
(Daly Br.
at 25.)
To support
their claim, petitioners note that under Section 39.2 of the Act,
the hearing must be held at any time between the 90th and 120th
day after submission of the application.
In this case,
the
hearing could have been held anytime from December 20 through
January
19.
Petitioners maintain that scheduling the hearing on
December 22, three days before Christmas,
limited opponents’
participation and ability to procure expert testimony for the
public hearing, because of impending holiday obligations.
(Daly
Br.
at 25,
26.)
Petitioners also allege that compressing
testimony into a single evening and starting at 6:30 p.m. were
evidence of undue haste.
(Daly Br.
at 26, and other cites.)
Respondents argue that petitioners cite no statute,
rule,
or
case law that additional hearings are required.
(RRRC PCB93—52
Br.
at 12.)
Respondents maintain that December 22,
1992, was
a
business day with the opportunity to carry the hearing over to
the next day.
(RRRC PCB93—52 Br.
at 12—13.)
Respondents also
label as “disingenuous” the assertion by petitioners that they
could not secure the testimony of desired experts on the date,
since they were aware of the Application filing on September 21,
1992.
(RRRC PCB93-52
Br.
at
13.)
Petitioners argue that compressing the public hearing into a
single evening, beginning at 6:30 p.m. with opponents’ testimony
placed tenth on the agenda, effectively undermined and frustrated
public participation.
The main thrust of petitioners’ argument
was that pushing opposing citizens’ testimony into the late night
and earlier mourning hours to finish
a public hearing was
fundamentally unfair.
Petitioners cited a prior Board decision
where
a similar issue arose.3
In Casner Township v. Jefferson
County (Casner Township
v. Jefferson County,
(April
4,
1985)
PCB
84—175,
84—176,
61 PCB 357,
366
(Casner) the public hearing
concluded at 2
a.m. and the Board characterized the proceedings
as the “exhaustion approach”.
Respondents argue that Casner can be distinguished from the
present circumstance because in Casner,
the hearing continued
past midnight until 2:00 a.m. based on the vote of the village
board and not the consent of the parties.
(Casner at 373.)
Also
in Casner,
one project opponent was represented by an attorney,
-~
Petitioner also cited Hediger
(PCB 90-163,
(December 20,
1990))
to support their case, but the Board notes that Hediger
did not
involve or discuss fundamental fairness.
10
yet
his
rights
to
participate
as
counsel
were
abridged.
(Casner
at
374—375.)
Respondents
note
that
no
one
iil~d
an
appearance
as
attorney
for
opponents
in the Bobbins hearing.
(Pr. Vol.
1
at
168.)
Respondents
also
maintain that until Mr. Greene’s comments
toward
the
end
of
the
public
hearing
(Pr.
Vol.
1
at
275—279),
there
was
no
protest
of
hearing procedures.4
After considering the record and testimony in this case, the
Board finds that the proceedings were not characterized by undue
haste.
Scheduling the hearing on December 22,
1992,
did not lead
to a fundamentally unfair proceeding.
Both opponents and
supporters of the project would be equally affected by impending
holiday obligations.
The record indicates that Hearing Officer
Sterk was willing to continue the hearing until all citizens had
an opportunity to speak.
(Pr. Vol.
1 at 203; Tr. at 252—253.)
Although initially limited to five minutes, citizens were offered
the opportunity to continue testifying in five minute blocks as
long as necessary.
(Pr. Vol.
1 at 259.)
The Board notes that 67
opponents filled out cards indicating
a desire to testify.
(Pr.
Vol.
1 at 186.)
Given the large number of potential testifiers,
the five minute limit on initial testimony was a reasonable way
to allow large numbers of people the opportunity to speak.
Several other factors mitigate against a finding of
fundamental unfairness.
Hearing Officer Sterk offered to
continue the public hearing until
10:00 a.m.
on December 23.
(Pr.
Vol.
1 at 186.)
He continued the hearing into the mourning
hours of December 23, after talking on informal poll of those
wishing to testify.
(Pr. Vol.
1 at 204.)
The Hearing Officer
also changed the order of events to allow opponents to testify
before supporters
(Pr. Vol.
1 at 169),
even though the Village
rules
(see
#9 and #10,
C0000l8)
stated that opponents would
testify after supporters.
Were The Proceedings Consistent With Reguirements For An
Ad~udicatorvProceeding?
Petitioners maintain that the December
22 public hearing did
not meet the requirements of an adjudicatory proceeding
in two
key aspects.
(Daly Br.
at 31.)
The alleged contrasts arose
from:
the pre-hearing “rally”; the layout of the hearing room;
and the conduct of the hearing officer.
4The Board notes that although Mr. Greene presented
a more
thorough list of
alleged procedural grievances,
another testifier
did raise procedural issues on the record.
Alderman Virginia
Rugai,
19th Ward,
questioned the starting time of 6:30 p.m. and
scheduling the hearing on December
22,
1992.
(Pr. Vol.
1 at
200.)
11
As discussed previously,
petitioners ~naintainthat the pre-
hearing “rally” should be considered part oi t~iepublic hearing
on the
RRRC
Application, because it was held in the same location
(Bobbins Recreation Training Center)
as the public hearing,
and
overlapped the published starting time of the public hearing by
about 10 minutes.
The Board found that the “rally” was not part
of the
RRRC
public hearing,
and the rules for conduct of the
public hearing did not apply to the “rally”.
(See within,
p.
7.)
However, the location and timing of the “rally” make it a proper
area of inquiry in relation to the fundamental fairness of the
instant case.
The “rally” was staged by an independent study commission,
chaired by Mr. Rudy Boule.
(Tr. at 26-27,
46—48,
70;
RRRC
PCB93-
52
Br.
at 9.)
The “rally” commenced at 6:00 p.m.
in the same
auditorium where the public hearing was scheduled to take place
at 6:30 p.m.
Informational handouts,
buttons,
and hats
supporting the
RRRC
facility were handed out from a table by the
door where citizens entered the auditorium.
(Tr. at 25,
59—60,
69,
108—110,
147,
156—157,
165,
188.)
At another table, food and
drinks were available,
courtesy of the proponents.
(Tr. at 146-
147,
238.)
After introducing the “rally” and making remarks about the
benefits that RRRC would bring to the community,
Chairman Bouie
introduced three speakers
in turn:
State Senator—elect William
Shaw; Representative Murphy; and
a local minister.
These
individuals gave remarks supporting the
RRRC
facility until
approximately
6:40 p.m. when Hearing Officer Sterk began the
public hearing.
(Pr. Vol.
1 at 6.)
Mr. Sterk had originally
arrived about
6:10 p.m., placed his briefcase at his station,
then went outside to have a cigarette.
(Tr. at 229.)
Several
RRRC
opponents arrived early for the public hearing.
(Tr. at 24,
66,
161.)
According to these opponents, the “rally”
speakers essentially stated that the
RRRC
would be a financial
boom to the community,
and made racist remarks directed toward
the opponents.
(Tr.
at
28,
30,
72.)
Opponents maintain that the
Mayor and some of the Trustees were present during the “rally”.
(Tr.
at 31,
164,
165.)
The opponents testified that they were
shocked,
amazed,
appalled,
intimidated,
or confused by the nature
of the proceedings.
(Tr.
at 23,
32,
70,
74,
164.)
Respondent’s argue that the “rally” was not sponsored by the
Village and was not part of the RRRC public hearing.
(RRRC
PCB93-52
Br.
at 9-11;
RRRC
PC393-52 Rep.
Br.
at 6—7.)
They
maintain that there is no proof that Village officials may have
been involved in the “rally”.
They do admit that testimony of
three opponents
(Tr.
at 31,
73,
89,
90)
indicates that Mayor
Brodie may have been present at the “rally”.
(RRRC PCB93—52
Br.
at 10.)
However,
respondents maintain that testimony shows that
there was
a clear delineation between the “rally” and the public
12
hearing
(Tr.
at
32,
75—76,
89,
167,
185)
,
arid that opponents
acknowledged
hearing
the
Hearing
Officer’s
call
to
order
and
instructions
for
the
public hearing.
(Tr.
at 33,
75,
169,
185.)
Respondents
further point to Mayor Brodie’s opening remarks as
a
clear indication that the public hearing had opened.
(Pr. Vol.
1
at 7—8.)
After reviewing the testimony in this case,
the Board agrees
with the petitioners that the “rally” did not bear the hallmarks
of an adjudicatory proceeding.
This Board is dismayed by the
testimony that public officials made racist remarks while
citizens were entering the auditorium prior to the start of the
hearing.
The remarks as reported were insensitive, unwarranted,
and inflammatory.
However,
the record in this case offers no
proof that the Village of Robbins was involved in the “rally”.
Although the “rally” was insensitive to the feelings of the
opponents,
there
is no showing in the record that opponents’
opportunity to be heard in the public meeting were abrogated.
Therefore, the Board finds that the “rally” in itself does not
lead to a finding of fundamental unfairness given the
circumstances of the instant case.
Petitioners also allege that the layout of the hearing room
did not meet the “value—neutral” requirements of an adjudicatory
proceeding.
(Daly Br.
at 33.)
As evidence they offer two lines
of evidence:
the position
of tables encountered by citizens upon
entering the hearing room
(V.
Exh.
1); and the location of the
room on the second floor where citizens could testify before
a
second court reporter.
(Daly Br.
at 33.)
Petitioners took issue with the proponents distributing pro-
incinerator literature from the same table that held the cross—
question and statement forms for all participants.
(Daly Br. at
33; Tr.
at 188—189.)
They also maintain that the tables
containing proponent paraphernalia
(Tr.
at 108)
and dispensing
free food and drinks
(V.
Exh.
1)
were not “value—neutral”.
Petitioners cited a previous Board opinion (Hediger
v.
D
& L
Landfill,
Inc.
(December 20,
1990),
PCB 90—163,
117 PCB
117) to
support their contention that layout of the hearing room can be a
critical issue
in determining fundamental fairness of a
proceeding.
Respondents note that .Hediger did not directly address the
issue of hearing room layout.
Instead, respondents cite City of
Columbia ((April
3,
1986)
PCB 83—177,
85—220,
85—223,
69 PCB
1)
which dealt with seating capacity
in
a hearing room.
Respondents
properly state that the Board has previously ruled that lack of
adequate seating could lead to a ruling of fundamental unfairness
in
a public hearing.
The Board has not previously ruled that the
placement of informational tables can determine a fundamental
fairness question.
Furthermore,
respondents note that
incinerator opponent, Jeff Tangel, was also permitted to place
13
opposing
literature
on
the
informational
table.
(Tr.
at
188,
189.)
The
placement
of
the
second
court
reporter
in
a
second
floor
room,
separated
from
the
main
hearing
room,
is
also
an
element
of
petitioner’s allegation that the hearing was fundamentally
unfair.
As noted earlier,
a second court reporter was made
available so that individuals could make sworn statements for the
record.
(Pr. Vol.
1 at 11.)
Citizens wishing to testify before
the auxillary court reporter exited the hearing room and went
upstairs to the second floor.
Opponents testified that they were
not able to hear speakers
in the auditorium while they waited to
give testimony,
or while giving their testimony to the secondary
court reporter.
(Tr. at 40.)
Petitioners further maintain that
opponents were encouraged to leave the hearing to testify before
the secondary court reporter.
(Daly Br.
at 8-10,
27, 37-38.)
Respondents argue that the second court reporter was
presented as a service to the participants (RRRC PCB93—52 Br.
at
15)
and participants were never asked or coerced to leave the
hearing room.
(RRRC PCB93-52
Br.
at 19.)
Use of the second
court reporter was not compulsory.
(Pr. Vol.
1 at 11-12, 91-92,
168-169; Tr.
at 305.)
Respondents maintain that the provision of
a second court reporter made it easier for participants to make
statements into the record.
(RRRC PCB93—52 Rep. Br.
at 19.)
After examining the record, the Board finds that the layout
of the hearing room does not rise to a showing of fundamental
unfairness.
The Board can find no evidence in the record that
participants were coerced into using the second court reporter.
Approximately 60 opponents and 11 proponents presented testimony
before the second court reporter.
(Pr. Vol.
2 at 2—140.)
The lack of compulsion or coercion to use the second court
reporter is a key point in the Board’s consideration here of
fundamental fairness issues.
Case law has established that the
public hearing is
a critical component of the landfill siting
application before the local government.
(Kane County Defendeers
v.
Illinois Pollution Control Board,
(2nd Dist.
1985)
487 N.E.2d
743.)
Citizens must have the opportunity to express their views
in a public forum as
a necessary component of the record to be
considered by local officials charged with the decision.
(Kane
County Defendeers
v. Illinois Pollution Control Board,
(2nd Dist.
1985)
487 N.E.2d
743.)
The Board does not consider the provision
of a second court reporter as a replacement for public testimony
at hearing.5
5The Board notes that opportunity to provide written
comments in a landfill siting appeal cannot be substituted for
opportunity by citizens to testify at a public hearing.
(Kane
County Defendeers v.
Illinois Pollution Control Board,
(2nd Dist.
14
Petitioner’s final
line of argument that the public hearing
was
not
consistent
with
an
adjudicatory
proceeiing
is
based
on
the
activities
of
the
Hearing Officer, Mr. St?rk.
According to
petitioner,
the
Hearing
Officer
did
not
conduct
the
proceeding
in
“a
competent,
impartial,
even-headed
manner,
consistent
with
an
adjudicatory
proceeding”.
(Daly
Br.
at
34.)
Petitioners
list
several
alleged
mistakes.
For
example,
petitioners
note
that
the
Hearing
Officer
did
not
appear in the hearing room at the
scheduled
6:30
p.m.
starting
time,
which
allowed
the
“rally”
to
continue until about
6:40
p.m.
Petitioners
allege
that
Mr.
Sterk’s references to the necessity for sworn statements6 was at
the expense of project opponents,
as well as his failure to clear
the hearing room of pro-incinerator paraphernalia.
Petitioners
also offer as evidence Mr.
Sterk’s refusal to answer a question
about whether or not opponents would lose their rights to appeal
by testifying before the second court reporter
(see Tr.
at 84,
85).
Other complaints include not being aware that the second
court reporter had left,
no transcription of the audience poll
when he suggested recess until
10 a.m.,
December 23, and
impatience with the proceedings.
(Daly Br.
at 35.)
Respondents argue that the hearing officer’s conduct was
“fair,
impartial,
and reasonable”.
(BRRC PCB93—52 Rep.
Br. at
11.)
They maintain that a delay of ten minutes is not unusual
for the start of
a public meeting, and cite Mr. Sterk’s testimony
to that effect.
(Tr.
at 237—238.)
Respondents also cite Mr.
Sterk’s testimony
(Tr. at 275-277,
301) that he had no knowledge
of responsibility for the “rally” as a defense for not stopping
the event.
Respondents maintain that
it was proper for Mr.
Sterk,
as the Hearing Officer,
and as an agent of the Village,
not to answer the question from the citizen concerning his
standing to appeal.
(RRRC PCB93-52 Br.
at 19.)
Upon review of the record the Board finds that the Hearing
Officer’s conduct did not abrogate the opportunities of the
public to be heard
in the matter and was not improper.
As
Hearing Officer, Mr.
Sterk, properly declined to answer
a
citizen’s question about legal standing.
(Tr.
at
84, 85.)
There
is no evidence of a pattern of impartiality
in Mr. Sterk’s
behavior toward opponents.
The Board notes,
that in the one
instance where Mr.
Sterk used his authority as Hearing Officer to
alter the Village rules for conduct of the hearing,
it was to the
1985)
487 N.E.2d 743.)
In the instant case,
if opponents had
been required or coerced to testify before the second court
reporter,
the Board may have ruled that the proceedings were
fundamentally unfair.
6The Board discussed this issue
on pages
7
&
8,
and did not
find that the Hearing Officer’s use of the term sworn statement
contributes to
a finding of fundamental unfairness.
15
benefit
of
opponents
at
the
expense
of project supporters.
Mr.
Sterk
changed
the
order
of
presentation
to
alluw
opponents
to
testify
before
supporters.
(Pr.
Vol.
1
at
169.)
The
record
also
shows
that
as
midnight
on
December
22
approached
Mr.
Sterk
offered
the
opportunity
to
continue
the
hearing
until
10
a.m.,
December
23.
(Pr.
Vol.
1
at
186.)
He
acceded
to
the
wishes
of
opponents
and
continued
the
hearing
until
its
conclusion
at
approximately
3
a.m.,
December
23,
1992.
Was
The
Public
Hearing
Conducted
In
A
Manner
Which
Prevented
The
Public
Participation
Necessary
To
Create
A
Complete
Record?
Petitioners allege that the manner in which the Robbins
public hearing was held defeated the public participation
necessary to create a complete record
in three ways.
(Daly Br.
36—39.)
First, petitioners allege that appropriate public
participation was defeated because opponents did not begin
testifying until after 11 p.m.
The second allegation is that the
Hearing Officer managed to effectively remove from the public
hearing many participants who wished to testify.
Third,
petitioners allege that the five minute testimony rule was
imposed only on opponents and was arbitrarily enforced.
Finally,
petitioners maintain that the Hearing Officer arbitrarily
discarded cross—questions.
Petitioners cited Casner as authority for the proposition
that starting opponents testimony late in the proceedings could
be evidence of an “exhaustion approach” thwarting adequate public
participation.
The Board has distinguished the current case from
Casner
(see within at
9)
and does finds that the facts of the
instant case do not lead to
a finding of fundamental unfairness.
Second, petitioners allege that the Hearing Officer
effectively removed citizens from the hearing room by:
repeatedly warning citizens that their opportunity to testify
would be late in the evening; and directing citizens to testify
before a second court reporter on the second floor where
testimony in the public hearing could not be heard.
(Daly Br.
at
8—10,
27,
37-38.)
Respondents counter that opponents were never
asked or coerced to leave to give testimony on the second floor
before the second court reporter.
(RRRC PCB93-52 Br. at 19.)
Respondents maintain that the hearing procedures and conduct made
it easier for participants to ask their questions and make
statements into the record.
(RRRC PCB93—52 Rep.
Br.
at 19.)
As
final evidence that public participation was not abridged,
respondents note that approximately
60 cross—questions were
submitted and more than 100 public statements were made at the
public hearing.
(RRRC PCB93-52 Rep.
Br. at 20, Exhibit A1—8.)
After examining the record,
the Board finds that public
participation was not thwarted by the Hearing Officers comments
that:
citizen testimony would be late in the evening;
or
citizens could testify on the second floor before
a second court
16
reporter.
The Board has also discussed this issue on page
9 and
10.
The Board has already discussed the Village’s five minute
testimony rule in relation to fundamental unfairness.
(See
within,
p.
8.)
The Board finds that limiting citizen comments to
five minutes was not unfair in design or execution.
(See within,
p.
8.)
The
final allegation by petitioners is that a complete
record
was
defeated
by
the
Hearing
Officer’s
arbitrary
jettisoning
of
cross-questions.
As an example, petitioners point
to
a
question
by
Gloria
Scott that the Hearing Officer refused to
read.
Petitioners
characterized
the
question
as
pertaining
to
“affirmative
action
and
racial matters”.
(Daly Br. at 38.)
RRRC
responds
by
describing
the
manner in which Mr.
Sterk
handled cross-questions.
(RRRC PCB93-52 Br.
at 19-20.)
Cross-
question forms were marked and numbered in the order received and
were asked
in the same order.
(Tr. at 253-254.)
Mr. Sterk
informed participants that duplicative or irrelevant questions
would not be asked
(Pr. Vol.
1 at 10-11,
108),
and wrote the
reason for not asking the question on the form.
(See C003007-
003066.)
Any questions not asked were more fully explained in
supplemental information supplied to the Village.
(C004l56—
004159.)
In reviewing the cross-question submitted by Ms. Gloria
Scott
(CO03046),
the Board finds no basis for reversing the
Hearing Officer’s ruling that the question was irrelevant.
The
Board also finds nothing in the record which demonstrated that
any cross—questions were handled improperly by the Hearing
Officer.
Therefore,
the Board finds that public participation
was not thwarted by improper Hearing Officer’s behavior in
handling the cross-questioning segment of the public hearing.
Conclusion
The fundamental fairness questions raised by petitioners
primarily related to the manner
in which the hearing was
conducted and to the opportunity for citizens to be heard.
In
reviewing the facts of the case in relation to the appropriate
statutes and case law,
the Board finds that no individual event,
or the cumulative total, rises to a showing of fundamental
unfairness
in this proceeding.
Therefore,
the Board finds that
the proceedings conducted by Bobbins were not fundamentally
unfair.
THE CHALLENGED CRITERIA OF SECTION 39.2(a)
OF THE ACT
17
When reviewing a local decision on the nine criteria found
in Section 39.2(a)
of the Act,
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~2d592;
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
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 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.
(August
30,
1990), PCB 90—94
,
aff’d; File v.
D
&
L Landfill,
Inc.
(5th Dist.
1991),
219 Ill.App.3d 897, 579 N.E.2d
1228.)
On
February
9,
1993,
the
Village
Board
of
Robbins
unanimously
enacted
an
ordinance
(C005330—005336) finding that
all applicable siting criteria from Section
39.2
of
the
Act
had
been satisfied,
and approving the
RBRC
siting application.
As
previously stated, CBE alleges that the Village acted against the
manifest weight of the evidence in relation to criteria #1,
#4
and
#5
in granting local siting approval for the family.
Criteria #1,
#4 and #5 can be found at Section
39.2(a) (1) (4) (5)
of the Act:
a.
The county board of the county or the
governing body of the municipality, as
determined by paragraph
(c) of Section 39 of
this Act,
shall approve or disapprove the
request for local siting approval for each
regional pollution control facility which is
subject to such review.
An applicant for
local siting approval shall submit sufficient
details describing the proposed facility to
demonstrate compliance,
and local siting
approval shall be granted only
if the
18
proposed
facility
meets
the
following
criteria:
1.
the
facility
is
necessary
to
accommodate
the
waste
needs
of
the
area
it
is
intended
to serve;
* **
4.
the
facility
is
located
outside
the
boundary
of
the
100
year
flood
plain or the site is flood-proofed;
5.
the plan of operations for the
facility
is designed to minimize
the danger to the surrounding area
from fire,
spills,
or other
operational accidents...
Criteria #1: Waste Needs Of The Area.
CBE alleges that “no
demonstrated need exists for the
proposed Bobbins facility based upon existing and projected waste
disposal capacity that will be capable of serving the intended
service area prior to operation of this facility”.
(CBE Br. at
2.)
CBE believes that the manifest weight of the evidence
indicates the following points:
1.
the applicant’s needs assessment did not
properly account for out-of—state waste
shipments and recycling plans
in the intended
service area;
2.
existing and
new
landfill capacity will be
sufficient to handle the projected capacity
shortfall and dispose of the waste of the
intended service area prior to the operation
of the proposed Bobbins facility;
3.
the intended service area was overstated with
major counties and sub—county areas within
Cook County planning to use alternative
facilities;
4.
only
18
of the 38 communities
in the Cook
County solid waste planning area that
includes the proposed Bobbins facility are
even considering this facility;
5.
the
18
south suburban municipalities don’t
sic
generate enough waste to meet the
facility’s design needs and they are
19
considering alternative waste disposal
facilities which can meet their need3 as
well;
6.
a
number
of
communities
in
the
intended
service
area
have
expressed
opposition
to
the
Robbins
project
and
don’t
intended
sic
to
use
this
facility;
and
7.
private
haulers
in
the
City
of
Chicago
are
making plans to build huge waste transfer
stations and use downstate landfills.
(CBE Br.
at 16—17.)
RRRC
argues that there
is ample evidence in the record to
support the Village’s finding in favor of the application.
RRRC
maintains that CBE is misrepresenting the needs of the service
area contemplated by the Act.
RRRC
argues that CBE supports its
allegation by reference to solid waste management plans
(some of
which are only
in draft form),
community resolutions,
speculative
recycling,
source reduction goals, and proposed disposal
facilities.
(RRRC Br.
at 12.)
First,
the Board will note that some of CBE’s contentions
seem to dispute the definition of the service area by RRRC.
These include:
the intended service area was overstated; only 18
of 38 communities in the Cook County solid waste planning area
are considering this facility;
and many communities have
expressed opposition to the facility.
Case law clearly
establishes that the applicant defines the service area.
(Citizens Against Regional Landfill
v. The County Board of
Whiteside County (February 25,
1993), PCB 92—156,
—
PCB
;
Metropolitan Waste Systems v.
IPCB,
(3d Dist.
1990),
201
Ill.App.3d 51,
55,
558 N.E.2d
785,
787,
cert. denied,
135 Ill.2d
558,
564 N.E.2d 839
(1990).
See also Citizens for
a Better
Environment
v. Village of McCook
(March
25,
1993),
PCB 92—198,
92—210,
pp.
7—8,
—
PCB
.)
RRRC
has defined the service area as the nine counties
designated by the IEPA as the Chicago Metropolitan Solid Waste
Management Region.
(C000040.)
The Application maintains that
the facility is easily accessible and within a 50-mile haul
distance of most of the service area.
(C000040-41.)
The Board
notes that the service area
is clearly defined and the Board will
not examine further the determination of RRRC of the service
area.
The RRRC Application needs assessment
is found at C000040-
000048.
RRRC
estimated that
in 1997,
the first planned year of
facility operation, the service area would generate 24,000 tons
per day
(tpd)
of processible municipal solid waste
(msw).
20
(C000042.)
RRRC
assumes
that
source
reduction/recycling
of
25
percent
will
reduce
this
figure
to
18,000
tpd.
(C000043.)
RRRC
then
subtracts
1,000
tpd
processed
by
the
Chicago
Northwest
Waste-to-Energy
Facility
(C000045),
reducing
the
potential
need
to
17,000
tpd
of
MSW,
which
is
ten
times
the
capacity
of
RRRC.
RRRC
estimates are based on figures obtained from the
U.S.
Census
Bureau, the Illinois Bureau of the Budget,
the Northern Illinois
Planning Commission,
and the IEPA.
(C000040.)
The
RRRC
Application also bases its calculation of service
area needs on the IEPA’s October 1991 annual disposal capacity
report.
(C003l62-003269.)
The report states that the Chicago
metropolitan region’s solid waste disposal capacity is likely to
be exhausted between 1997 and 1999, assuming current disposal
rates and no additional capacity.
(C003199.)
IEPA’s disposal
report projects that only six existing landfills in the service
area will be operating after 1997
(C003199), when
RRRC
plans to
commence operations.
The combined capacity of these six
landfills
is presently 9,000 tpd
(C000047), which leaves
a
potential need shortfall of 8,000 tpd
(by subtracting 9,000 tpd
from the projected need of
17,000 tpd).
Finally, RRRC maintains that its needs assessments are
determined in conformance with Illinois state policy.
RRBC
cites
to the Illinois Solid Waste Management Act
(415 ILCS 20/2(b))
which states:
b.
It
is the purpose of this Act to reduce
reliance on land disposal of solid waste, to
encourage and promote alternative means of
managing solid waste,
and to assist local
governments with solid waste planning and
management.
In furtherance of those aims,
while recognizing that landfills will
continue to be necessary,
this Act
establishes the following waste management
hierarchy,
in descending order of preference,
as State policy:
1.
volume reduction at the source;
2.
recycling and reuse;
3.
combustion with energy recovery;
4.
combustion for volume reduction;
5.
disposal
in landfill facilities.
Illinois state policy clearly states that combustion with energy
recovery
is
preferred over disposal
in landfill facilities.
In
addition, RRRC’s
assumption of a
25 percent recycling rate
is
21
consistent
with
the
Illinois
state
25
percent
recycling
goal
found
in
the
Solid
Waste
Planning
and
Recycling
Act.
(415
ILCS
15/6(3).)
First,
CBE
contends
that
the
applicant’s
needs
assessments
did
not
properly
account
for
out—of—state waste shipments and
recycling
plans.
CBE
notes
that
according
to
the
IEPA,
10
percent
of
the
waste
in
the
intended
service
area
is
exported
out
of
the
regime
for
disposal.
(C003l99.)
CBE
maintains
(CBE
Br.
at
7)
that
this
is
equivalent to
1,800
tpd,
based
on
RRRC’s
projection that need
is 18,000 tpd.
(C000044.)
RRRC
responds
that there
is nothing
in the record to support the assumption
that the 10 percent export rate will continue in the future.
(RRRC Br.
at
16.)
Additionally,
RRRC
notes that even if the
1,800 tpd
is exported,
it does not fully take care of the
RRRC
projection that there will exist a 8,000 tpd shortfall in
existing landfill capacity.
(RRRC Br.
at 16.)
CBE next argues that
RRRC
“did not properly account for the
recycling programs that are being developed pursuant to the
adopted solid waste plans in the intended service area”.
(CBE
Br.
at 7.)
CBE observes that several communities and counties in
the service area have adopted higher waste reduction goals than
the state goal of 25 percent.
These higher goals range from 30
to 47 percent.
(C004996,
004997,
005013,
005029,
005035,
005041,
005093,
005087.)
CBE argues
(CBE
Br.
at
8) that pilot programs
indicate that as much as 70 percent of the waste stream can be
diverted from landfills.
RRRC
counters CEE’s argument by noting that,
according to
the IEPA,
less than 13 percent of the non—hazardous solid waste
in Illinois was recycled and composted in 1991.
(C000040,
003164.)
RRRC
argues that there
is nothing in the record to
indicate that waste stream diversion rates beyond the 25 percent
state goal,
and approaching the 70 percent diversion posited by
CBE,
can be attained.
(RRRC Br.
at
16.)
Second,
CBE contends that existing and new landfill capacity
will be sufficient to handle the projected capacity shortfall.
(CBE Br.
at 16.)
CBE maintains that several
landfills are either
under construction or
in the planning stages7 which were not
7The Board notes that CBE appears to counter its own
argument that other landfills that are proposed or under
construction should have been considered in need calculations.
CBE states that
it “opposes these facilities because,
like the
proposed Bobbins incinerator, they are environmentally—unsound
and a threat to safer waste prevention and recycling methods...”.
CBE goes on to say that regardless of their opposition, the Board
must consider these proposed facilities
in determining whether or
not
RRRC’s
calculations were against the manifest weight of the
22
properly reflected in RRRC’s calculations.
(CBE Br.
at 8—10.)
CBE contends that two DuPage County landfills,
which will
continue to operate under court order (C005055-005056) until
2001, remove the sense of urgency implied by the
RRRC
application.
(CBE Br.
at 11.)
RRRC
argues that there is nothing in the record to indicate
that several of the landfills named by CBE as planned or under
construction will receive all the permits they need to operate.
(RRRC Br.
at 17-19.)
RRRC
also notes that there is nothing in
the record to indicate that the existing landfills of Christian
County, Wayne County, and the Litchfield-Hillsboro Facility are
presently accepting waste from the service area.
RRRC
points to
an appellate decision which stated “it is not improper to
consider facilities outside of the intended service area if those
facilities are presently providing waste disposal to the county”.
(Waste Management
v.
IPCB
(2d Dist.
1988 at 690),
175 Ill.App.3d
1075, 530 N.E.2d 682.)
In relation to the DuPage County
landfills,
RRRC
placed the final consent order in the record
(C004470—004494) and included the capacities of those landfills
in the 9,000 tpd available capacity calculation.
(C000047;
RRRC
Br.
at 16.)
Third,
CBE contends that the intended service area was
overstated since many areas plan to use alternative facilities.
(CBE Br. at 16.)
CBE cites several county and sub-county solid
waste management plans
(SWMP’s)
in draft or final stages that
outline specific measures to meet their area waste disposal
needs.
(CBE Br.
at 11-15.)
CBE states that the Robbins facility
“is not consistent with the planning recommendations of at least
six of the major solid waste management plans that have been
adopted in the intended service area...”.
(CBE Br.
at 12.)
CBE
notes that the
RRRC
facility has been included as a service
provider
in the waste management plan for South Cook County (see
alternative #5,
C005023), which will eventually become part of
the SWMP’s for Cook County.
(C003159.)
RRRC
maintains that the “Village Board’s decision regarding
the need criterion is not against the manifest weight of the
evidence simply because the SWMP’s of the counties in the Service
Area do not name the facility as
a component of their plans”.
(RRRC Br.
at 21.)
RRRC
contends that CBE’s argument more
properly relates to criterion #8 of Section 39.2(a)
of the Act,
that a proposed facility must be consistent with the adopted
SWMP’s of the county where it
is located
(but CBE did not
challenge the eighth criterion).
RRRC
notes that none of the
county plans specifically excludes use of the RRRC facility.
(RRRC Br.
at 21.)
RRRC
also notes that the majority of the
SWMP’s discuss waste-to-energy facilities as an option being
evidence.
(CBE Br.
at
9.)
23
considered.
(C005015,
005034,
005036,
005051—005052,
005063.)
Finally,
RRRC
references
Board
precedent
which
stated
that
“the
relevant
inquiry
is
whether
there
is sufficier,t evidence in the
record
to
support
the
Village’s
finding
of
need,
not
whether
the
county
SWMP’sJ
or
any
other
draft
waste
management
plan
specifically
incorporates
the
Facility”.
(RRRC
Br.
at
21;
Citizens
for
a
Better Environment v.
Village of McCook
(March 25,
1993),
PCB
92—198,
92—201,
at
p.
9
PCB
~)
Fourth and fifth,
CBE contends that only
18 of the 38
communities in the Cook County solid waste planning
area are
considering the
RRRC
facility
and
they
do
not
generate
enough
waste
to
supply
the
RRRC
facility.
(CBE
Br.
at
14—15.)
Sixth,
in
a
contention
related
to
points
four
and
five,
CBE
notes
that
many
communities
in
the
service
area
have
expressed
opposition
to
the
project
and
do
not
intend
to
use
RRRC’s
facility.
(C005l44-005l60; CBE Br.
at
16.)
CBE
reports
that
the
RRRC
facility is included in the south Cook County solid waste
plan
and
only
18
of
the
38
communities
have
joined
the
South
Suburban
Solid
Waste Agency.
(C005170.)
CBE argues that
it is
unclear whether these
18
communities
will
ever
use
the
proposed
RRRC
community.
(CBE Br. at
15.)
CBE states that even
if
these
18 communities send their waste to RRRC,
they will generate only
522 tpd, which is below the
RRRC
design capacity of 1,600 tpd.
(CBE Br.
at
15.)
RRRC
argues
that
“the
disposal capacity shortage remains
unaffected by any single community’s decision not to use a
particular facility, whether by suggested inference
in a County
plan or by
local resolution not to send waste to the
Facility”.
(BRRC
Br.
at
20.)
RRRC
contends that even if certain communities
do
not choose to use RRRC’s facility, their waste would deplete
existing landfill space,
shortening that landfill’s lifespan and
decreasing
the
service
area’s
remaining
capacity.
(See
Fairview
Area
Citizens
Taskforce
(3d
Dist.
1990),
198
Ill.App.3d
541,
552,
N.E.2d
1178,
1185,
cert. denied,
133
Ill.2d
554,
461
N.E.2d
689
(1990)
(affirming the Board’s finding of need for the proposed
facility, the court explained that as one landfill closes “the
life expectancies
of the surrounding landfills could be
considerably shortened... Stress
on
those
landfills,
as
well
as
on the landfills in the..
.
service area,
could be considerably
relieved
by the proposed facility,
thereby extending the life
expectancies
of
the
existing
facilities”.)
RRRC
noted that,
according
to
IEPA projections, the service area’s remaining
capacity
is
low.
(C003199.)
Seventh,
CBE argues that private haulers in the City of
Chicago are making plans to build huge transfer stations and use
downstate landfills.
(CBE Br.
at
13.)
CBE describes these huge
waste sorting operations with capacities of 2,500 to 5,000 tpd
and some recycling capabilities.
(C0050l8—005019,
005126,
24
005135-005136.)
Nonrecycled waste would be transported to
downstate landfills by train.
(CBE Br.
at
10..,
RRRC
notes
that
the
only
support
CBE
offers
that
these
sites
should
be
considered
in
calculations
of
need
are
newspaper
articles.
(See
C0050l8—005019,
005126,
005135—005136.)
RRRC
argues that this
is speculative information which
is insufficient
for the Village to use
in determining need.
(RBRC
Br.
at
20.)
After reviewing the record and the case
law, the Board finds
that the Village’s finding that the
RRRC
facility
is
necessary
to
accommodate the waste needs of the service area
is not against
the manifest weight of
the
evidence.
RRRC
provided extensive
information
and
expert
testimony
to
calculate
the
projected
waste
disposal
needs
of
the
service
area.
Although,
CBE
challenges
those calculations,
RRRC
presented
sufficient evidence to support
the Village’s finding.
The Board cannot engage in reweighing the
evidence before the Village.
(Tate
v.
Illinois Pollution Control
Board
(Ill.App.4
Dist.
1989),
544 N.E.2d 1176.)
Criteria #4:
Flood-proofing.
The RRRC site lies within the designated 100-year floodplain
for Midlothian Creek.
(C000066.)
CBE notes that Illinois
statute
(415 ILCS 5/39.2(a) (iv))
provides that approval for the
RRRC
facility can be granted only
if the site
is flood—proofed.
CBE observes that the Village ordinance granting local siting
approval states:
“The Facility is designed to be flood—proofed.”
(CBE Br.
at
18; C005336.)
CBE then argues that since the
language of the approval ordinance does not conform to the
language of Section 39.2(a) (4)
of the Act (“site
is flood-
proofed”),
the ordinance does not evidence the strict compliance
with the Act demanded by case law.
(Citing to Waste Management
v.
Illinois Pollution Control Board
(Ill.App.2
Dist.
1987),
513
N.E.2d 592, Clutts
v.
Beasley
(Ill.App.5 Dist.
1989),
541 N.E.2d
844,
Tate
v.
Illinois
Pollution
Control
Board
(4th
Dist.
1989),
544 N.E.2d 1176.)
RRRC
argues
that
CBE
has
incorrectly
interpreted
Section
39.2(a) (4) to require that the site be “flood—proofed”
when the Village makes its decision about whether or not to grant
local siting approval.
RRRC maintains that CBE has detached the
specific requirement at
(a) (4)
from the preceding clause at
Section 39.2 which speaks
in terms of a “proposed facility”.
RRRC
interprets the statute to require only that the applicant
demonstrate that the site will be flood—proofed when structures
at
the
site
are
constructed.
RRRC
notes that floodproofing
typically involves water detention areas and raising building
elevations.
RRRC
argues that construction permits cannot be
obtained without siting approval; therefore,
the statute cannot
be read to require floodproofing prior to seeking local siting
approval.
RRRC considers its position consistent with previous
25
Board
and
appellate court decisions.
(Tate
v.
PCB
(4th Dist.
1989),
188
Ill.App.3d
944,
1022—1023,
544
N.E.2d
1176,
1195,
cert.
denied,
129 Ill.2d 572,
550 N.E.2d 565
(1989)
and Tate
V.
Macon County Board,
(December
15,
1988), PCB 88—126,
94 PCB 103.)
RRRC
notes that demonstrations that the proposed facility will be
flood—proofed are found in the record.
(C000066—000067, 000085—
000087,
000241—000257.)
The
Board
notes
that
CBE
challenges
the
timing
of
the
completion
of
RRRC’s
floodproofing
proposal,
not
its
adequacy.
The
Board
agrees
with
RRRC’s
intrepretation
of
the
statute.
After
careful
review
of
the
record,
the
Board
finds
that
the
Village’s finding that the
RRRC
facility
meets
the
criteria
of
415 ILCS 5/39(a) (v)
is not against the manifest weight of the
evidence.
Criteria #5:
Plan of Operations.
CBE argues
(CBE Br.
at 22-23)
that the section of the
RRRC
application entitled “Plan of Operations”
(C000068)
lacks
substance and credibility.
CBE contends that the section does
not contain specific provisions or policies detailing how the
facility is actually designed to minimize the danger to the
surrounding area from fire,
spills, or other operational
accidents.
Instead,
the application indicates that a plan “will
be designed and implemented”.
(C000072.)
Additionally, while
CBE acknowledges that
RRRC
has submitted an example of a
contingency plan into the record
(C000333—000363), CBE maintains
that
it does not pertain to the Bobbins facility.
CBE then
argues that “The
Village did not condition its approval on
completion of
a plan of operations,
nor did it direct that
RRRC
must develop one.
The mere unconditional., speculative promise of
RRRC to design such
a plan does not fulfill the strict statutory
requirements of Section 39.2(a)(5).”
(CBE Br.
at 23.)
RRRC
points out that there is Board precedent for affirming
local siting approval where the application contained no formal
plan of operations, yet the applicant presented testimony on
pertinent issues and the application addressed operational plan
aspects.
(Gallatin National Company
v.
The Fulton County Board,
(June 15,
1992)
PCB 91-256,
134 PCB 273.)
In another case,
the
appellate court affirmed a Board finding that the operational
plan criterion was satisfied,
despite CBE’s challenge due to lack
of details
in the application.
(Fairview Area Citizens Taskforce
v.
IPCB
(3d Dist.
1990),
198 Ill.App.3d N.E.2d 1178, cert.
denied,
133 Ill.2d
(1990)).
RRRC
also argues that the sample
operational plan submitted into the record
(C000333—000363)
is
for an actual waste—to—energy facility, which has been
implemented by the same operator, Foster-Wheeler, which will
operate the planned Bobbins facility.
RRRC
contends that the
level
of detail
in the draft plan is
“more than sufficient
26
evidence
for
the
Village
Board
to
find
that
BRRC
satisfied
criterion
five”.
(RRRC Br.
at
27.)
After
reviewing
the
record
and
pertinent
precedents,
the
Board finds that the Village’s finding that:
“The plan of
operations for the Facility is designed to minimize the danger to
the surrounding area from fire,
spills,
or operational accidents”
(C005366)
is not against the manifest weight of the evidence.
The Board
is satisfied that
RRRC
submitted sufficient details
in
the application for the Village Board to appropriately make its
finding.
(Industrial Fuels,
227 Ill.App.3d 533,
592 N.E.2d 148.)
For example,
the Board notes that the sample plan of operations
(C000333—000363)
is for an actual operating facility which is run
by the same operator that will manage the Bobbins facility.
CONCLUSION
Daly et al. challenged the local siting decision of the
Village asserting that the proceedings were fundamentally unfair.
CBE challenged the decision of the Village alleging that the
decision was against the manifest weight of the evidence in
relation to criteria #1,
#4,
and #5.
After extensively reviewing
the evidence in the case, the Board finds that the Village’s
proceedings were fundamentally fair,
and its decision on the
criteria was not against the manifest weight of the evidence.
Therefore,
the Board affirms the siting approval for a regional
pollution control facility by the Village of Robbins.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board affirms the February
9,
1993, decision of the
Village of Bobbins granting site location suitablility approval
for a new regional pollution control facility to be located in
Robbins, Cook County,
Illinois.
27
IT IS SO ORDERED.
Chairman Claire A. Manning concurs.
Board Member Bill Forcade dissents.
Section 41 of the Environmental Protection Act
(415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days.
The Rules of the Supreme Court of Illinois establish
filing requirements.
(But 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 above opinion a~ order was
adopted on the
/—‘~
day
of
~
1993,
by a vote of
_______
.
/
/
Dorothy M. 4tinn,
Clerk
Illinois P~lutionControl Board
