ILLINOIS POLLUTION CONTROL BOARD
March 25,
1993
CITIZENS FOR A BETTER
)
ENVIRONMENT, and
)
ALICE ZEMAN,
)
)
Petitioners,
)
v.
)
PCB 92—198
)
(Landfill Siting)
VILLAGE OF MCCOOK and
)
(Consolidated with
WEST SUBURBAN RECYCLING
)
PCB 92- 201)
AND ENERGY CENTER,
INC.,
)
)
Respondents.
EDWARD NOVAK,
)
)
Petitioner,
)
V.
PCB 92—201
BOARD OF TRUSTEES and MAYOR of the
)
(Landfill Siting)
VILLAGE OF MCCOOK and WEST
)
(Consolidated with
SUBURBAN RECYCLING
& ENERGY CENTER,)
PCB 92-198)
INC.,
)
Respondents.
KEVIN GREENE APPEARED ON BEHALF OF CITIZENS FOR A BETTER
ENVIRONMENT.
LAURA LEONARD, SIDLEY
& AUSTUN, APPEARED ON BEHALF OF WEST
SUBURBAN RECYCLING AND ENERGY CENTER.
VINCENT CAINKAR,
LOUIS F.
CAINKAR, LTD., APPEARED ON BEHALF OF
THE VILLAGE OF MCCOOK.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board on third-party appeals filed
pursuant to Section 40.1(b)
of the Environmental Protection Act
(Act)
(415 ILCS 5/40.1(b)
(1992)1).
Citizens For A Better
1
The
Environmental
Protection
Act
was
previously codified at Ill. Rev. Stat. ch. 111
1/2,
par.
1001 ~
~g.
(1991)
01 i~0-U223
Environment and Alice Zeman
(CBE),
a member of CBE, filed their
appeal on December 3,
1992 and Edward Novak filed his appeal on
December 4,
1992.
On December
17,
1992,
the Board consolidated
both appeals because CBE, Alice Zeman,
and Edward Novak
(petitioners) all seek review of the decision of the Village of
McCook
(Village) granting site location suitability aproval to
West Suburban Recycling and Energy Center,
Inc.
Hearings were
held on February 4,
1993 and February 5,
1993 in Summit,
Illinois, which were attended by members of the public.
BACKGROUND
On May 7,
1992, West Suburban Recycling and Energy Center
(WSREC)
filed an application for siting approval for consisting
of an integrated municipal waste transfer, recycling, compost and
waste processing regional pollution control facility to be
located on 19 acres of land in the Village of McCook.2
(R.
13,
16.)
The “Recovery Center” will provide resource recovery by
processing recyclable materials, composting biodegradable
materials, and by processing mixed municipal solid waste to
produce refuse derived fuel (RDF)
for combustion at a separate
facility to be located in the Village of Summit.
(R.
16.)
On
August
5,
1992 an amended application was filed.
(R.
206.)
Hearings were held before the Village on August 17,
1992.
On
November 2,
1992, the Village entered its written decision
finding that WSREC met all applicable criteria set forth in
Section 39.2 of the Act (415 ILCS 5/39.2) and granting siting
approval.
(R.
2-12.)
On appeal before the Board, Novak alleges that the
proceedings before the Village were fundamentally unfair and asks
that the matter be remanded for a new hearing and new decision.
CBE alleges that the Village’s findings that the facility is
necessary to accommodate the waste needs of the intended service
area
(415 ILCS 5/ 39.2(a) (1)
(1992)) and that the facility is
consistent with the solid waste management plan
(415 ILCS
5/39.2(a)(8)
(1992))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.
(415
ILCS
5/39.2
(1992).)
Section
2
Because
the
facility
is
to
be
located
on
property that straddles the boundary of two
villages,
an application for siting approval
for a waste-to—energy facility was filed with
the Village of Summit.
However, the Village
of Summit’s decision is not before the Board
in
the
instant
case
as
that
matter
was
reviewed in PCB 92—174,
92—177.
UI Li0-022L&
3
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 WSREC met its burden on all the criteria.
CBE
challenges the County’s findings on criteria #1 and #8.
When reviewing a local decision on the criteria, this Board
must determine whether the local decision is against the manifest
weight of the evidence.
(McLean CountY Disposal.
Inc.
V.
County
of McLean
(4th Dist.
1991),
207 Ill.App.3d 352, 566 N.E.2d 26,
29;
Waste Management of Illinois,
Inc. v. Pollution Control
Board
(2d Dist.
1987),
160 Ill.App.3d 434, 513 N.E.2d 592~E
&
E
Hauling,
Inc.
v. Pollution Control Board
(2d Dist.
1983),
116
Ill.App.3d 586,
451 N.E.2d 555, aff’d in part (1985)
107 Ill.2d
33,
481 N.E.2d 664.)
A decision is against the manifest weight
of the evidence if the opposite result is clearly evident, plain,
or indisputable from a review of the evidence.
(Harris
v. DaY
(4th Dist.
1983),
115 Ill.App.3d 762, 451 N.E.2d 262,
265.)
The
Board,
on review,
is not to reweigh the evidence.
Where there is
conflicting evidence, the Board is not free to reverse merely
because the lower tribunal credits one group of witnesses and
does not credit the other.
(Fairview Area Citizens Taskforce v.
Pollution Control Board
(3d Dist.
1990),
198 Ill.App3d 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.)
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, Novak does
raise a fundamental fairness issue.
DISCUSSION
First, the Board addresses the fundamental fairness issue
raised by Novak.
Novak contends that the proceedings were
fundamentally unfair because, unlike the August
10,
1992 Village
of Summit hearings on the waste-to-energy facility, the hearing
on the instant application did not continue into the evening
0
IL~0-o22S
4
hours when Novak and others attended thereby depriving them of
the opportunity to participate.
The legal notices, published in the Chicago Tribune and the
Desplaines Valley News, provide that hearing on WSREC’s
application would be held “on Monday, August 17,
1992, beginning
at 10 a.m.”
(R. 286—91.)
The record establishes that the
Village of McCook hearing commenced at 10
a.iu.
on August 17,
1992.
(Tr. 2/4/93 at 48;
R.
6.)
A lunch break was taken, the
hearing reconvened and subsequently adjourned at approximately
4;45 p.m.
(Tr. 2/4/93 at 48;
R.
6.)
A thirty-day comment period
was set at the conclusion of the hearing.
(R.
1118.)
The record also establishes that the Village of Summit
hearing, held August 10,
1992, began at 10 a.m., continued until
4:30 p.m., reconvened at 7:00 p.m.,
and concluded at 2:30 a.m. on
August
11,
1992.
(Tr. 2/4/93 at 50.)
According to Novak, a resident of Summit for 37 years,
he
came to the hearing room at 7 p.m. on August 17,
1992 and waited
until about 10:30 p.m. before leaving.
After it became apparent
that the hearing was over,
Novak and other citizens filled out
“presentation” and “cross question” cards which had been left in
the room and delivered them to the Village.
Novak testified that
a newsletter published by the Village of Summit indicated that
the hearing would be held at
7 p.m.
(Tr. 2/4/93 at 20.)
Novak
also testified that he attended the Village of Summit’s August
10,
1992 hearing from
7 p.m. until the hearing ended.
(Tr.
2/4/93 at 21—22.)
Mike Turlek testified that he came to the August
17 McCook
hearing at 7:45 p.m. and that there were approximately 40-50
people at the auditorium.
(Tr.
26.)
He testified that he was
aware that the legal notice stated that the starting time of the
hearing was 10 a.m. and that it gave no finishing time.
(Tr.
2/4/93 at 24-25.)
He also testified that he attended the August
10 Summit hearing and was “aware there would be a 7:00 p.m.
start—up again.”
(Tr. 2/4/93 at 25.)
Turlek also testified that
the Suburban Life newspaper story indicated that the hearing
would begin at
10 a.m. and that there would be another starting
time at 7 p.m.
(Tr. 2/4/93 at 25.)
Turlek did submit a public
comment.
(Tr. 2/4/93 at 30—31.)
James Sylvester testified that he too came to the August 17
McCook hearing at
7 p.m. and read the newsletter indicating that
the hearing would be held in both the morning and the evening.
(Tr. 2/4/93 at 34—35.)
He also filed a written comment.
(Tr.
2/4/93 at 38.)
Catherine Kulaga testified that she attended the hearing
held on August 17 and that she informed the hearing officer that
there might be people attending in the evening.
(Tr. 2/4/93 at
01 L~0-0226
5
42-43.)
She also testified that everyone in attendance at the
August
17 hearing was given the opportunity to make a comment.
(Tr. 2/4/93 at 45.)
Dilys Jones testified that he attended the August 17 McCook
hearing and that the legal notice for that hearing only stated
that the hearing would begin at 10 a.m.
(Tr. 2/4/93 at 60.)
He
testified that people assumed that the August
17 hearing was
going to be just like the August 10 Summit hearing.
(Tr.
2/4/93
at 60—61.)
Joel Balestri testified that he did not see the legal
notices
(Tr.
2/4/93 at 83) and Greg Baine testified that he saw
no legal notices for either hearing, but stated also that he does
not read the newspaper
(Tr. 2/4/93 at 93).
Novak’s contention that the proceedings below were
fundamentally unfair
is based upon the fact that the hearing had
been concluded by the time he arrived to participate.
Novak
believed that the August 17 McCook hearing would still be in
progress because:
(1) the August 10 Summit hearing proceeded into
the evening hours; and
(2)
some local newspaper articles and a
newsletter indicated that the hearing would proceed into the
evening hours.
The “Village of Summit Newsletter” relied upon by Novak
actually refutes his position.
(PCB Pet. Exh i.)~ This
newsletter states that the August
10 Summit hearing would begin
at 10 a.m.,
continue until 4:30 p.m.,
reconvene at
7 p.m.,
and
continue until all comments were made.
Conversely, this
newsletter states that the August 17 McCook hearing “will begin
at 10 a.m.”
However, some of the newspaper articles introduced
by Novak indicated that the August
17 hearing would also continue
into the evening as had the August 10 hearing.
(PCB Pet.
Exh.
4,
5,
8.)
A Northwest Cook County Environmental Action Coalition
(NCCEAC)
newsletter also indicates that the August 17 McCook
hearing would follow the pattern of the August 10 Summit hearing.
(PCB Pet.
Exh.
2.)
While newspaper articles and NCCEAC Newsletters indicated
that the August
17 McCook hearing would be held in the evening,
the legal notices, which are the only notices required to be
given by the Act (415 ILCS 5/39.2(d)
(1992)), accurately stated
that the hearing would begin at 10 a.m.
(R.
286-91.)
The Board
cannot make the fairness of the proceedings before the Village
dependent upon the accuracy of local newspaper articles or
newsletters.
If the Board were to find that a local newspaper
story or newsletter published by a local citizens group could
“PCB
Pet.
Exh
“
indicates exhibits
introduced
by
petitioner at the Board hearing on February
5,
1993.
01
~0-0227
6
affect the fundamental fairness of a hearing by incorrectly
predicting the timing of the hearing, the fairness of the
proceeding could be “sabotaged”.
Rather,
the Board finds that
the fairness of the hearing,
in terms of accurately giving notice
of the time and place of the hearing,
is governed by the legal
notice required to be published by the Act.
(415 ILCS 5/40.1
(1992).)
In the instant case,
the legal notice stated that the
hearing would begin at
10 a.m. and the hearing did indeed begin
at that time.
Therefore, the Board finds no unfairness resulting
from the fact that the August 17 McCook hearing concluded at 4:45
p.m. before Novak and others attended.
Moreover, the Board finds
that fundamental fairness does not require that the August
17
McCook hearing follow the identical schedule of the August 10
Summit hearing.
The Board concludes that the proceedings before
the Village were fundamentally fair.
The Board now addresses CBE’s challenge to the Village’s
findings on criteria #1 and #8.
Criterion #8 provides that the
applicant must establish that “if the facility is to be located
in a county where the county board has adopted a solid waste
management plan consistent with the planning requirements of the
Local Solid Waste Disposal Act or the Solid Waste Planning and
Recycling Act, the facility is consistent with that plan.”
(415
ILCS 5/392(a)(8)
(1992).)
While CBE contends that the Village’s decision that WSREC
met the “solid waste management criterion” is against the
manifest weight of the evidence, WSREC contends that this
criterion is inapplicable because there is no adopted plan.
The
Village’s November 2,
1992 written finding states that the
facility is to be located “in Cook County which has not yet
adopted a solid waste management plan.”
(R.
10.)
A letter dated
July 1,
1992 from the Cook County Department of Environmental
Control states that the County had not yet adopted a solid waste
management plan.
(C 864.)
The “Solid Waste Needs Assessment for
the Cook County Planning Area”
(Cook County report), prepared by
the Northeastern Illinois Planning Commission,
states that the
Cook County solid waste planning area comprises the entire area
of the County outside the City of Chicago,
that the Cook County
Board is responsible for adopting a solid waste plan for that
area,
and that the County has been divided into five sub—areas
for planning purposes.
(R.
487.)
The group responsible for
planning for the area where WSREC’s proposed facility would be
located is the West Cook County Solid Waste Agency (WCCSWA).
(R.
487,
492.)
The record also contains a “West Cook County Solid
Waste Management Plan (WCCSWMP).”
(R.
660.)
A letter dated
August 27,
‘1992 from the Chairman of the WCCSWA indicates that
the plan would be adopted by the WCCSWA’s Board of Directors on
or about September 17,
1992.
(R.
1174.)
However, the Cook
County report establishes that while the Cook County Board
01 ~0-0228
7
intends to make use of the plans developed by the groups
in the
sub-areas, the ultimate responsibility for adopting a solid waste
plan for the entire suburban portion of Cook County rests with
the Cook County Board.
(R 492.)
The Board finds the instant case distinguishable from
Worthen
v. Village of Roxanna
(October 10,
1991),
PCB 91—106
where the Board also dealt with the issue of whether criterion #8
applies.
In Worthen, the Board was unable to determine whether
the county had an adopted solid waste management plan.
(PCB 91-
106 at 9.)
However, because the county made a specific finding
of fact that the drafts of the solid waste management plans would
be considered as if such a plan was in full force and effect, the
Board reviewed the consistency of the plan pursuant to criterion
#8.
Here, there is one document,
the letter from the Chairman of
the WCCSWA,
indicating that the WCCSWA’s plan may be adopted by
the WCCSWA’s Board of Director’s
in the future.
Additionally,
although testimony was elicited as to whether the proposed
facility is consistent with the WCCSWMP
(Tr. 8/17/92 at 1117),
such testimony does not establish the existence of an adopted
solid waste management plan requiring an inquiry pursuant to
criterion #8.
However, not only does this evidence fail to
conclusively establish that the WCCSWA has adopted a plan,
other
evidence indicates that it
is the Cook County Board that must
adopt such a plan.
Lastly, unlike Worthen, here the Village
specifically found that no solid waste management plan had been
adopted.
Based upon a review of the record, the Board finds that
Cook County did not have an “adopted” solid waste management plan
at the time the Village rendered its decision on WSREC’s
application.
In the absence of an adopted plan,
an applicant cannot be
required to establish that the proposed facility
is consistent
with that plan in order to obtain siting approval.
Therefore,
the Board concludes that the Village’s finding that criterion #8
is inapplicable is proper and rejects CBE’s contention that the
Village’s finding on this criterion is against the manifest
weight of the evidence.
Criterion #1 requires that the applicant establish that
the “facility is necessary to accommodate the waste needs of the
area it is intended to serve.”
(415 ILCS 5/39.2(a) (1)
(1992).)
In construing this statutory provision, the appellate court has
held that an applicant for siting approval need not show absolute
necessity in order to satisfy criterion #1.
(Clutts v. Beasley
(5th Dist.
1989), 541 N.E.2d 844, 846
; A.R.F. Landfill v. PCB
(2d Dist.
1988),
528 N.E.2d 390, 396
;
WMI
v. PCB (3d Dist.
1984),
461 N.E.2d 542,
546.)
The Third District has construed
“necessary” ‘as connoting a “degree of requirement or
essentiality.”
(WMI v. PCB, 461 N.E.2d at 546.)
The Second
District has adopted this construction of “necessary”, with the
additional requirement that the applicant demonstrate both an
01 1~O-O229
8
urgent need for,
and the reasonable convenience of, the new
facility.
(Waste Management
V.
PCB (2d Dist.
1988),
530 N.E.2d
682,
689
; A.R.F. Landfill v.
PCB, 528 N.E.2d at 396;
WMI
v. PCB
(2d Dist.
1984),
463 N.E.2d 969, 976
.)
The First District
recently stated that these differing terms merely evince the use
of different phraseology rather than advancing substantively
different definitions of need.
(Industrial Fuels
&
Resources/Illinois, Inc.
v. IPCB
(1st Dist.1992),
227 Ill.
App.
3d 533,
592 N.E.2d 148,
156.)
In support of its finding that WSREC’s facility is needed,
the Village stated the following:
the facility would “encourage
and promote alternate means of managing solid waste in
conjunction with the state policy established in the Illinois
Solid Waste Management Act”; that there is a need for the
facility in the greater Chicago area located in proximity to the
source of the municipal waste being generated; the testimony of
John L. Kirby, president of WSREC,
the Fifth Annual Report of
Available Disposal Capacity for Solid Waste in Illinois, the West
Cook County Solid Waste Needs Assessment, the West Cook County
Solid Waste Management Plan, and the Solid Waste Needs Assessment
for the Cook County Planning Area establish that there is a need
for a facility which will accommodate an increase in the
recycling and composting of municipal waste.
(R.
7.)
WSREC notes that while CBE recognizes that the issue before
the Board is whether the applicant established a “need”, CBE has
couched virtually all of its arguments in terms of an alleged
inconsistency between the facility and the waste management plan
prepared by the WCCSWA.
The Board agrees that much of CBE’s
argument on the “need criterion” is based upon its contention
that the proposed facility is inconsistent with a solid waste
management plan that has not yet been adopted.
As noted above,
WSREC need not establish that the facility is consistent with an
unadopted waste management plan.
However, the Village could
properly rely on waste generation data in an unadopted solid
waste management plan which contains data on waste generation in
reaching its determination on criterion #1.
(See e.g.,
R.
660-
763 Pet.
Exh. 7.)
In addition to arguing about consistency with the WCCSWMP,
CBE argues that the Village’s finding of “need” is against the
manifest weight of the evidence because the WCCSWMP developed for
the area intended to be served by the WSREC does not include two
of the WSREC’S major components: the solid waste composting
facility and RDF—production facility.
WSREC contends that the
Village’s decision is not against the manifest weight of the
evidence simply because the WCCSWMP does not specifically
identify the composting and RDF-production components of the
proposed WSREC facility as a necessary part of the plan.
WSREC
maintains that the Village’s finding of “need” is supported by
the WCCSWMP as well as other evidence and testimony introduced by
01 ~0-023O
9
WSREC.
The Board cannot say that the Village’s finding on the “need
criterion” is against the manifest weight of the evidence simply
because WSREC’s facility is not identified as being a necessary
part of a draft solid waste management plan.
Again, the question
of “need” is not dependant on consistency with an solid waste
management plan; rather that inquiry is properly made under
criterion #8 when applicable.
While the Village’s written
decision makes reference to the WCCSWIMP in establishing a “need”,
it is possible that the Village was taking into account that such
a plan was not yet in place and, therefore,
provided no solution
to the waste needs of the intended service area.
The Board finds
that the relevant inquiry is whether there is sufficient evidence
in the record to support the Village’s finding of need,
not
whether the WCCSWMP or any other draft waste management plan
specifically incorporates WSREC’ s.
John L. Kirby, president of WSREC, testified that the
facility is needed to accommodate the waste needs of the intended
service area.
((TR.
8/17/92 at 37.)
Kirby testified that in
assessing need,
WSREC used data available from the Illinois
Environmental Protection Agency’s “Available Disposal Capacity
for Solid Waste in Illinois, Fifth Annual Report”,
“Illinois
Solid Waste Needs Assessment” dated June 1988, and the June 1991
“Solid Waste Needs Assessment for Cook County Planning Area.”
(Tr. 8/17/92 at 40.)
These reports provide information on the
number of active landfills in Illinois, new facilities planned
for the area but which have yet to receive permits, and the
amount of waste being generated in Cook County.
(Tr.
8/17/92 at
38-41;
R.
377-762 Pet.
Exh.
4,
5,
6,
7.)
Jack Matton, manager
for ABB Recovery Systems, also testified that there is a “need”
for transfer capacity and recycling.
(Tr. 8/17/92 at 1117.)
The Board finds that the Village’s finding that WSREC
established
a “need” for the facility based on testimony and the
reports introduced by WSREC is not against the manifest weight of
the evidence.
CBE does not point to any testimony refuting the
testimony of Kirby and Matton that the facility is necessary to
accommodate the waste needs of the intended service area.
Rather,
CBE relies upon the facilities alleged inconsistency with
the unadapted WCCSWMP and its interpretation of the data in that
plan in support of its contention that the Village’s finding on
criterion #8
is against the manifest weight of the evidence.
In
the absence of such contradictory evidence,
it is difficult to
conclude that the Village’s decision is against the manifest
weight of the evidence.
(Industrial Fuels
& Resources/Illinois,
Inc.
v. IPCB (1st Dist.1992),
227 Ill.
App.
3d 533,
592 N.E.2d
148.)
Based upon the Board’s review of the record,
a finding
that WSREC failed to establish a “need”
is not clearly evident,
plain,
or indisputable.
01 ~O-023I
10
For the foregoing reasons, the Board concludes that the
Village’s proceedings were fundamentally fair,
affirms the
Village’s finding that criterion #8
is inapplicable and finds
that the Village’s determination that WSREC established that the
facility is necessary pursuant to criterion #1 is not against the
manifest weight of the evidence.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby affirms the Village of McCook’s November 2,
1992 decision granting WSREC siting approval.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 1992)) 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, and Casteneda
V.
Illinois Human
Rights Commission
(1989),
132 Ill. 2d 304, 547 N.E.2d 437; Strube
v. Illinois Pollution Control Board, No. 3-92-0468, slip op. at
4—5
(March 15,
1993).)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certif~ythat the above opinion and order was
adopted on the ~?5Z~
day of
f)—)
~
,
1993 by a vote of
~
~,
/~
Dorothy M.~unn, Clerk
Illinois ~‘91llutionControl Board
Li
01 ~O-0232
