ILLINOIS POLLUTION CONTROL BOARD
January 21, 1993
C.O.A.L.
(CITIZENS OPPOSED TO
ADDITIONAL LANDFILLS),
Petitioner,
V.
)
PCB
92—131
)
(Landfill Siting Review)
LAIDLAW WASTE SYSTEMS,
INC.,
)
and
THE
PERRY
COUNTY
BOARD
)
OF
COMMISSIONERS,
)
)
Respondents.
)
MARK MACLIN
AND
AARON
ATKINS
APPEARED
ON BEHALF OF C.O.A.L.
BRIAN
E. .KONZEN
APPEARED
ON
BEHALF
OF UIDLAW WASTE SYSTEMS,
INC.
OPINION
AND
ORDER OF THE BOARD
(by J.
C.. Marlin):
This matter
is
before the Board
on.
the
September
11,
1992
petition for review filed by C.O.A.L. pursuant to section 40.1(b)
of
the Environmental Protection Act (Act).
(Ill. Rev. Stat. 1991,
ch. 111 1/2,
par. 1040.1(b).)
C.O.A.L.
seeks
review of the Perry
County
Board
of
Commissioners’
(County)
August 21,
1992 decision
granting Laidlaw Waste Systems, Inc.
(Laidlaw) siting approval for
a regional pollution control facility..
A
hearing before the Board
was held October 27,
1992 in DuQuoin, Illinois, which was attended
by members of the public.
BACKGROUND
On
March
17,
1992,
Laidlaw filed an application for siting
approval for a 257—acre regional pollution control facility (RPCF)
to be located in Perry County.
(C. 690, 697.)
The RPCF is apart
of the Greater Egypt Regional Environmental Complex (GEREC)
,.
which
is proposed as an “integrated, organized,
and programmed complex
consisting of a number of commercial,
industrial, and solid waste
control facilities and environmental programs, sited, designed, and
operated
so as to blend with the natural ecosystem and provide
maximum positive benefits to the community and region.”
(C. 690.)
The proposed RPCF would consist of a material processing facility,
a composting facility, and a sanitary landfill.
(C.. 690-91.)
“The
site
is
generally described as a reclaimed
coal
strip
mine(s)
situated in an agricultural setting.”
(C. 697.)
Hearings were held before the County on June22,
1992, June
23,
1992, and July 6,
1992.
On August 21, 1992, the County entered
its
written
decision
granting
approval,
finding
that
it
had
OI38-Q~3j
2
jurisdiction over the application,
that it had not yet adopted a
solid
waste
management
plan,
and
that
Laidlaw
established
compliance with the applicable criteria.
(C. 1657-62.)
On appeal before the Board, C.OA.LI. alleges that the County
did not have jurisdiction to proceed on Laidlaw’s application, that
the
proceedings
before
the
County
were
fundamentally
unfair,
and
that
the
County’s
findings
that
Laidlaw
met
the
“flood
plain
criteria”
(Ill.
Rev. Stat.
1991,
ch.
111 1/2, par.
1039.2(a) (4))
and the “design criteria”
(Ill. Rev.
Stat. 1991, ch. 111 1/2, par.
1039.2(a) (2)) are against
the
manifest weight of
the
evidence.
STATUTORY
FRAMEWORK
At the local level4
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 County found that Laidlaw act its burden
on all the criteria.
C.O.A.L. challenges the County’s findings on
criteria #2 and #4.
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 Manaaement of illinois.
Inc.
v. Pollution ContrOl Board
(2d
Dist.
1987),
160 Ill.App.3d 434,
513 N.E.2d 592; E & Elipulina,
Inc.
v.
Pollution Control Board
(2d Diet.
1983),
116 fll.App.3d
586,451 N.E.2d 555, aff’d in
part
(1985) 107 Ill.2d 33, 481 N4E.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 Diet.
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
Diet.
1990),
198 Ill.App.3d
541, 555 N.E.2d 1178,
1184; Tate v.
Pollution Control Board (4th Diet.
1989), 188 Ill.App.3d .994, 544
N.E.2d 1176, 1195; Waste Manaaement of Illinois. Inc.
~Pbllution
~ontro1
B~.ird
(2d
Diet.
1989),
187
Ill.App.3d
79,
543 N.E.2d 505,
~O7.)
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 Diet.
1991),
219
Ill.App.3d
897,
579
N.E.2d
1228.)
OI38-~32
3
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,
452.
N.E.2d
at
562.)
C.O.A.L.
raises
both
jurisdictional
and
fundamental
fairness
issues.
Jurisdiction
C.O.A.L.
contends
that
the
County
lacked
jurisdiction
to
consider
Laidlaw’s
application, because
Laidlaw failed to
‘give
notice
of
its
request
for
siting
approval
to
all
owners
of property
within 250 feet of the lot line of
the
subject
property
as
required
by section 39.2(b) of the Act.
In particular, C.O.A.L. contends
that Matilda Poiter, who owns the mineral rightS to the oil
and
gas
located in a parcel of property
located
within 250 feet of
the
site, did not receive proper notice.
Laidlaw contends that it was
not required to give notice to Poiter
because
she was not listed on
the “authentic tax record” used by Laidlaw for its notice list and,
alternatively,
Poiter
is not an “owner” of property within the’
meaning of the Act.
Section 39.2(b) provides, in relevant part, as follows~
No later than 14 days prior to a request, for
location approval
the
applicant shall
cause
written notice
of, such request to be served
either in person or by registered mail, return
receipt
requested,
on
the
owners
of
all
property
within
250 feet in each direction’o•~
the
lot
line
of
the subject property,
said
owners being
such persons or entities which
appear from the authentic’ tax records of the
County in which the facility is to be located.
At the County hearing, Laidlaw introduced an affidavit ittesting to
the fact that notice was given by registered mail to owners of all
property
within
400
feet
of
the
site
as
they appear
on
the
authentic tax records of Perry County
and copies of the regiStered
mailing
list.
(C.
1410-1448.)
Laidlaw stated at hearing that
while it was only required to give notice to those owners within
250 feet,
it “went above and beyond the 250 feet in
some
cases by
as much as a mile.”
(C.
11.)
In its written decision, the County
made a specific finding that it had jurisdiction and that Laidlaw
served al
notices as required by law.
(C. 1658.)
At the Board’s October hearing, Matilda Poiter testified that
she owned the mineral rights to property located within 250 feet of
the site,
that she pays taxes on
that property,
and that she did
not receive notice of Laidlaw’s application.
(Tr. 10/27/92 at 12-
19.)
C.O.A.L.
also introduced two real estate tax bills received
by Poiter.
(Tr.
10/27/92 at 17; Pet. Exh.
1,
2.)
0138-0433
4
Based upon Poiter’s testimony and the
two exhibits,
C.O.A.L.
asserts that the County lacked jurisdiction because Laidlaw failed
to comply with the notice provisions
of section 39.2(b).
Section 39.2(b) requires that applicants for siting approval
use the “authentic tax records” to determine
the
owners to whom
notice
must
be
sent.
(Bishop
V.
PCB (5th Diet. 1992),
601 N.e.2d
310.)
In Bishoø, the
appellate court addressed
the
issue of what
are
“authentic
tax
records”.
(~.
at
311—15.)
The
applicants
argued that the
“authentic
tax
records” were those maintained
by
the
county treasurer
and the citizens group opposed to siting
argued
that
the
“authentic
tax
records” were those maintained by
the county clerk.
(~&.
at 311.)
The record contained testimony
establishing
that
the
offices
of
the county clerk, assessor, and
treasurer
all play a role in the collection
and
record-keeping
function of the taxing
.
(J~,.at 315.)
Consequently, the
court distinguished Bishop from a
Board
case
(DiMaaaio
v. Solid
Waste
Aaencv
of Northern
Cook
County)
where the
county
clerk
testified that the county ‘clerk’s office maintained the “authentic
tax records.” (~ at 315.)
In construing
section
39.2(b),
the
court noted that section 39.2(b)
does
riot define owners as those
persons
appearing from the county clerk’s records
or as
those
available
from
the
most
up-to-date
record.
(~.
‘at
315)
“Generally, as long as
notice
is
in
compliance
with
the statute and
places
those
potentially
interested
persona
‘on
inquiry,
it
is
sufficient to confer jurisdiction....”
(Zd. at
315’.)
Therefore,
the
court
held
that
the
authentic tax records in Bishop included
the records maintained by
the
treasurer’s office.
(I~.
at 315.)
Here,
Laidlaw states in its brief that•
it
“served
notice
on
all owners appearing in
the
authentic tax records Of the
Perry
County Supervisor of Assessments.”
(Brief at 5.)
However., in its
reply brief, C.O.A.L. contends that “the information regarding
Mrs.
Poiter and her co—owner’s ownership of the
mineral
rights Oould
have been ascertained from the Supervisor of Assessments of Perry
County,
as her
office
has
a
property index
card
on
the property,
as
evidenced
by
the
attached
copies
of ‘the
property
index
cards,
copies
of
which
are
submitted
herewith,
and
are
marked
“Exhibit
D”
and made a part hereof.”
(Reply Brief at 3.)
Also attached to
C.O.A.L.’s
reply
brief
is
“Exhibit
A”,
a certified
copy
of a
warranty
deed
conveying
the
mineral
rights
to
certain
property
to
Matilda Poiter, and Poiter’s sisters and brother,
“Exhibit B” is
Poiter’s
affidavit
attesting to the fact that Poiter has paid taxes
on the property for approximately 19 yea2.
,
and “Exhibit C” is the
affidavit
of
Frank
Mangin,
County
treasurer
of
Perry
County,
stating that Poiter has paid taxes on
the
property in excess of six
years.
Initially,
the
Board
must
address
Laidlaw’s
December
10,
1992
motion to strike the “exhibits” attached to C.O.A.L.’s reply brief.
Laidlaw
contends
that
these
documents
should
be
stricken
because
they were not introduced at the
Board’s
hearing and are, therefore,
0138-0434
5
outside
the
record
on
review.
Additionally,
Laidlaw
asserts
that
fundamental
fairness
requires
that
a
party
be
afforded
the
opportunity to confront, rebut, and cross—examine evidence and that
consideration
of
these
documents
would
violate
these
rights.
C.O.A.L. ‘s response, filed December 18, 1992, contends that it
may
raise
a jurisdictional issue at any time
and relies on Concerned
Boone Citizens. Inc. v.
14.I.G. Investments. Inc.
(2d Diet. 1986),
144,
1)1. App. 3d 334,
494 N.E.2d 180 in support of its position
that it may also introduce evidence on a jurisdictional challenge
at any point in the proceedings.
In Concerned Boone
Citizens
(CBC), cBC filed a motion to
dismiss
in the
appellate
court
alleging that the court
lacked
jurisdiction
because
M.IG.
failed
to
give
notice
of
its
application
in
accordance
with
Section
39.2(b)
of
the
Act.
Attached to
its motion was a certificate of publication showing
that notice was given 13 days prior to filing as opposed to the
requisite
14
days.
(~,.
at
182.)
cBC
did
not
raise
the
jurisdictional issue below and the certificate
was
not part of the
record
on
appeal.
(~t~)
The
court
recognized
that
a
jurisdictional issue’ may
be raised at any time and that
the
court
may
allow
facts
affecting
its
jurisdiction,
which
are
not of
record, to
be
proven
by
extrinsic
evidence.
(~)
The
Board
finds
the
instant
case
distinguishable
from
Concerned Boone Citizens.
Here, CO.A.L. raised the
jurisdictional
is;ue
at
the
Board’s
October
27,
1992
hearing
and
presented
evidence
in
support
of
its
position
that
the
County
lacked
jurisdiction.
As, noted
above,
Poiter testified concerning her
property
and
payment
of
taxes.
C.
O.A L. introduced tax
bills in
support of this testimony.
This is not a situation
where,
for the
first time at the
briefing stage before
the Board,
C.O.A.L. has
discovered, and
presented
a
jurisdictional
challenge.
Unlike
Concerned Boone Citizens, C.O.A.L. had ample cpportunity to present
evidence in support of its jurisdictional challenge and
in fact
presented
such
evidence.
C.OA.L.
does
not contend
that
the
“exhibits”
attached to its brief
are newly discovered evidence.
C.O.A.L. should not be
allowed at this late stage to supplement the
record with documents relating to an issue where it was afforded
the opportunity to fully
address the matter
at, bearing and .to
present
evidence
in
support
of
its
jurisdictional
challenge.
Therefore,
the
Board
grants
Laidlaw’s
motion
to
strike
the
“exhibits” attached to C.O.A.L.’s reply brief.
Pursuant to 35
Ill.
Ada.
Code
101.241, the Board denies Laidlaw’s
December’23,
1992
motion to file a reply to C.O.A.L.’a response.
The
Board
now
addresses
the
issue
of
whether
Laidlaw’s
reliance
on
the
supervisor
of
assessments’
records
as
the
“authentic tax records” is consistent with the Act.
In the instant
case, unlike Bishop and DiMag~io,the record contains no testimony
from any county employees as to which records are the “authentic
tax
records.”
However,
the
record
does
contain
the
County’s
0138-0435
6
written finding that jurisdiction exists and that Laidlaw served
notice as required by the law.
Such a finding necessarily includes
a
finding
that
Laidlaw
served notice on owners as they appear on
the
“authentic tax records.”
The Bishop holding that records
maintained by any one of the
three county offices may constitute
the “authentic tax records coupled with the County’s finding of
jurisdiction leads the Board to conclude that the
supervisor
of
assessments’ records constitute the “authentic tax records” in the
instant case.
The Board must now determine whether Laidlaw properly served
notice on the persons appearing on the supervisor of
assessments’
records.
The
record
does
not
contain
the
supervisor
of
assessments’
records which
form
the
basis’ of
Laidl.aw’
$
notice.
However,
the
Act
does
not require that an
applicant
submit such
information.
Here, Lafdlaw introduced an
affidavit
end
registered
mailing
list
to
establish
notice
was
given
in
accordance
with
section 39
•
2(b).
The County
found
that
Laidlaw’s
notice
satisfied
the
requirements
of
the
Act.
Consequently,
on
appeal before the
Board,
C.O.A.L.
has
the
burden
of establishing that the County’s
finding that notice was proper
is
erroneous.
The
‘only
evidence
properly
introduced
into
the
record
by
C.O.A.L.
are
the
real
estate
tax
bills
received
by
Poiter.
(Pet.
Exh.
1,
2.)
However,
C.O.A.L.
does not contend,
nor
does
the
• record indicate, that these bifls
are
contained in the supervisor
of assessments’
records.
Because CO.A.L. fails to establish a
connection
between
Poiter’s
tax
bills, and. the
supervisor
of
assessments’ records, which are the authentic tax records in this
case,
the Board
finds
that these
bills do not establish
that
Laidlaw was required to serve Poiter with notice in order to comply
with
section 39.2(b).
Moreover, although C.O.A.L. contends in its
reply
brief
that
Poiter’a
name appeared
on the
supervisor
of
assessments’ records, there is no evidence in the record to support
this bare assertion.
As
rioted above,
the
Board, cannot
rely
upon
documents attached to
C.O.A.L.’
s
reply brief, Which were never
introduced at hearing, to determine whether Poiter’s name appeared
on the supervisor of assessments’
records.
Moreover,
the
Board
finds that even if the “exhibits”
attached to C.O.A.L.’s reply
brief
were
properly
before the
Board,
these
documents
do
not
establish
that
Poiter’s
name
appeared
on
the
supervisor
of
assessments records.
“Exhibit A” is simply a copy of the warranty
deed, “Exhibit B” simply reiterates Poiter’s own testimony that she
has paid taxes on the propert’, “Exhibit C” indicates that Poiter’s
name appeared on the recora~kept by the
County
treasurer
ar.
“Exhibit D” is a property record but there is no indication from
which
county
office
the
records
were
obtained.
Hence,
a
consideration of these documents leads the Board to again conclude
that C.O.AL. has failed to establish that Poiter was entitled to
notice.
Therefore, while the Board agrees with C.O.A.L.’s contention
0138-Q4.3~
7
that
the
notice
requirements
of section 39.2(b) are jurisdictional
prerequisites
to
siting
approval
(Wabash
&
Lawrence
County
TaxDavers
V.
PCB (5th Diet. 1990),
198 Il.
App. 3d 388, 555 N.E.2d
1081,
1084;
Kane
CountY Defenders, Inc. v. PCB (2d Dist. 1985), 139
Ill.
App.
3d
588,
487
N.E.2d
743)),
C.OA.L.’s
allegation
of
improper notice
is not supported by the record.
Having concluded
that
C.O.A.L. fails to establish the necessity of serving Poiter
with
notice,
the
Board
need
not
address
the
issue
of whether
Poiter, as the
owner
of mineral rights, is an “owner” of property
under section 39.2(b).
C.O.A.L.’s second jurisdictional challenge is based upon an
alleged failure to serve William Walker with notice within the 14-
day time period set forth in section 39.2(b).
Walker testified at
the Board hearing that he is a resident of DuQuoin and that be owns
property
near
the
site.
(Tr.
10/27/92
at
20.)
Me
further
testified that he received notice 13 days before the filing of
the
request for site approval.
~
While Walker
testified
that he
had records from
the
post office to support
his
testimony
(Tr.
10/27/92 at 21), no
such
evidence
was
introduced
into
the
record.
Additionally, C.O.A.L.’s assertion that a certified mail receipt
which is part of
the
permanent record
shows
that Walker did not
receive
notice
until
13
days
prior
to
filing
of
Laidlaw’s
application is not supported by any citation to the record.
The
Board’s review of the record failed to reveal such evidence.
The
Board also notes that Walker participated extensively at the County
hearings.
(C.
480.)
Laidlaw contends that C.O.A.L. has failed to establish that
Walker was entitled to notice because C.O.A.L.
has presented no
evidence indicating that Walker’s name appeared
on
the
supervisor
of assessments’
records or that Walker owns property within 250
feet of the site.
The record does include an affidavit attesting
that Laidlaw served Walker with notice by delivering the mailing on
March
3,
1992 to the Granite City Post Office.
‘.
(C.
1410,
1439.)
Laidlaw states that
it mailed notices to persons beyond the 250
feet
boundary
required by section 39.2(b).
Laidlaw
also
contends
that,
assuming Walker is entitled to notice, section 39.2(b) does
not require that
the owner receive notice no later than
14
days
prior
to
filing,
but
only
that
the applicant cause service no later
than 14 days prior to filing an application.
C.O.A.L.
fails
to
establish
that Walker
is
the
owner
o,f
property
located
within
250
feet
of
the
site.
Walker
only
testified
that
he
owned
property
“near”
the
site.
Laidlaw’s
affidavit attesting to service, dated March 4, 1992, and statements
made at the County hearing, establish that Laidlew served notice
upon
persons beyond
the
250
feet
boundary.
C.O.A.L.
fails
to
establish that Walker was an owner within 250 feet rather than a
person
served
with
notice
beyond
the
250
feet
boundary.
Additionally, C.O.A.L. has not presented any evidence establishing
that Walker appears on the “authentic tax records” relied upon by
0I36~oz,37
8
Laidlaw
.in
serving
notice.
Therefore,
while
the
Board
agrees
that
the
14-day
notice
requirement
of
section
39.2(b)
is
a
jurisdictional requirement
(Wabash
&
Lawrence
County
Taxpayers
V.
~
(5th
Dist.
1990),
198
Ill.
App.
3d
388,
555 N.E.2d 1081, 1084;
Brownina—Ferris v. PCB (5th Dist. 1987), 162 Ill.
App.
3d 801, 516
W.E.2d 804; Kane County Defenders. Inc.
v. PCB (2d Dist. 1985), 139
Ill. App. 3d 588, 487
N.Ee2d
743), the Board finds that C.O.A.L.’S
assertion that Walker was entitled to notice is not supported by
the record.
Having concluded that C.O.A.L. fails to establish that Walker
was
entitled to
notice,
the Board
need not address
Laidlaw’s
contention that it complied with the 14 day requirement by placing
notice in the mail within this time period.
Fundamental
Fairness
As
noted
above,
section
40.1
of
the
Act
requires
that the
Board
review
the
procedures
used
at
the
local
level
to
determine
Whether
those
procedures
were
fundamentally
fair.
C.O.A.L.,
contends that the County
proceedings
violated
fundamental
fairness
because:
(1) several members of the public
were denied access
to
the
hearing
when
the
County
voted
on
the
application;
(2)
members
of the public had
no
opportunity
to
review
the
contract
between
the
County and Laidlaw providing for compensation to the County after
Laidlaw received its operating permit;
and
(3) there were cx parte
contacts
between
Laidlaw
and
the
County
with
respect
to
the
contract.
At
the Board’s
October
hearing,
Ruth MacMurray. and Marie
Robier testified in an offer of
proof
that
they
were denied access
to the meeting on August 21,
1992 when the County
voted
on,
and
subsequently
approved, siting.
(Tr. 10/27/92 at 27-33..)
According
to
the
witnesses,
the
meeting
room
was
full
and
they
stood
in
the
hell with many other persona outside the room,
but
could not bear
what occurred.
(~L)
C.O.A.L. made an offer of
proof
that T.A.
Atkins and Charles Janesio would have offered the
same
testimony.
~
at
34.)
C.O.A.L.
contends that the
fact that many
members
of the
public
were
denied access to the August 21,
1992
meeting
violates
both
fundamental
fairness
and
the
Illinois
Open
Meetings
Act.
(Ill.
Rev. Stat
1991,
cli.
102, par.
41
~t
~g.)
Init~ali”,the
Board
notes
that
it does
not have
the
st’’utory aub~orx~.yto
enforce the Illinois Open Meetings Act and,
therefore,
any such
‘alleged violation does not in and of itself establish a violation
of fundamental fairness.
Hence,
the relevant inquiry is whether
OI38-Q~3~
9
the
local
procedures
were
fundamentally
unfair
as
alleged
by
C.O.A.L.’
While the record establishes that many members of the public
were
denied
access
to the meeting
where
the
County
voted
on
Laidlaw’s
application,
it
is
clear
that
this occurred
simply
because the room could .not accommodate all those in attendance.
The
record
also
establishes
that
members
of
the
public were
afforded ample opportunity to participate in the actual
hearings
which formed the record before the County.
(C.
642—69.)
After
the
close of the hearings, the public was afforded 30 days
in
which
to
submit
comments.
(C.
676.)
At the August 21,
1992
meeting
when
the County voted on
the
application,
no evidence was submitted
because the record was closed.
The
record establishes
that
members
of the public were not deprived of the opportunity to make their
positions
known;
rather,
some
members were
merely
denied
the
opportunity to hear the County vote on the application.
Because
the ‘local
procedures
did
not
frustrate
public
participation
in
the
actual hearings which form the basis of the County’s decision, the
Board finds
that
the
denial
of
access
to
some
members
to
the
August
meeting does not render the proceedings fundamentally unfair.
C.O
•
A. L. ‘s
remaining
two
contentions
relate to
a
contract
entered into between the County and Laidlá*
on
August 21,
1992
which
provides
compensation
to
Perry
County
from
Laidlaw.
(PCB
Pet.
Exh.
3.)
First,
C.0.A.L.
alleges,
that
the
version
of
the
contract
filed
with
the
application
differs
from.
that
entered
into
by the County and Laidlaw on August 21, 1992
and
that
the
failure
to’ allow the public the opportunity to review or comment on this
contract
was
fundamentally
unfair.
Secondly,
C.O.A.L.
contends
that
there
were
ex
parte
contacts
between
Laidlaw
and
the
County
regarding the terms of the contract.
Gene ‘Gross, Perry County State’s Attorney, testified at the
Board hearing as to the events
surrounding
the contract.
‘
(Tr.
10/27/92
at
34.)
Gross
stated
that,
on
August
21,
1992,
the
County
voted on all
the
applicable
criteria.
(~L)
A
request
was made
that
the
application
be
approved,
at which
time
the
chairman
produced the revised version of the contract.
(~j)
.
The
revised
contract
is
similar
to
the
original
filed
with
the
application
except that
it narrowed the radius
in which material could ‘be
brought to the facility and increased the fees.
(n,.
at 37.)
The
chairman indicated that he wanted Laidlav to review the revisions
2
Although
the
hearing
officer
sustained
Laidlaw’s
objection
to
MacMurrary
and Robler’s testimony because
allegations
of
open
meetings
violations
are
irrelevant,
C.O.A.L.
presented the testimony in an offer of proof.
(Tr.
10/27/92 at 23-25.)
The Board will
consider the
testimony only insofar as it is relevant to the issue of
fundamental fairness.
0138
OL~39
10
before the Board acted on the application, at which point a recess
was
taken.
(~~)
While
Laidlaw reviewed the
contract,
Gross
advised the County that they should proceed with the vote and that
it
was
inappropriate
to
consider
the
contract
as part of the siting
process.
(J~j
The County approved siting and subsequently Laidlaw
agreed
to
the
revisions and the contract was signed.
(~t~.)
Don
Hirsch,
County
Clerk,
testified
that
be
did
not
know who
drafted
the
revised
contract
and
that,
to
his
knowledge,
the
terms
of the revised contract were not specifically discussed at any
county board meeting.
~
at 40,
42.)
In
alleging
cx
parte
contacts,
•C.O.A.L.
relies
on’
the
existence of a revised contract, presented at the
August
21,
3992
ueeting, which provide~Perry County with,. j~nter~
royalties
for
waste
landfilled at the
facility
.
(Pet.
Exh.
3 at
76.)
However,
the
testimony
of
Gross
and Hirsch
do not
indicate
that
any
discussion occurred at the meeting between Laid.aw
and the County
regarding
the
contract
and
its
relation to
siting.
Gross’
testimony merely states that a revised contract was
produced
at
the
meeting
by
the
chairman
and that
Laidlaw
was
allowed
to
review
the
contract.
Hirsch’s testimony establishes only that
be
did
not know
who drafted the contract and that he did not know of any
county
board
meetings regarding the contract.
C.O.A.L. fails
to
establish
that
any
cx
parte
communication
occurred.
Moreover,
even if
an
cx
parte
communication occurred,
C.O.A.L.
fails
to
establish
that
it
was prejudiced
by this
contact.
A court
will
not
reverse
an
agency’s
decision
because’of ~
~
contacts
with
members
of
that
agency
absent
a
ahoving
of
prejudice.
(Pairview Area Citizens Taskforce v.
IPCB
(3d
Dist.
1990),
198 Ill.
App.
3d
541,
555 N.E.2d 1178,
1183,
citing, Waste
Manaaement
of
Illinois v. PCB (1988), 175
Ill.
App.
3d
1023,
530 N.E.2d
682, 697-
80.)
The record establishes that a similar Version of the contract
was
filed
with
Laidlaw’s
application
(Tr.
10/27/92
at’3638.)
such
that it could be reviewed and commented on at the’ local proceedings
by members
of
the
public.
However,
a
review
of
the
hearings
below
establishes
that
no
members
of the
~ub’lic
commented on
the
original
contract.
C.O.A.L.
fails to allege
bow
its
participation
would
have differed had
it been
aware
of
the changes in
the
revised
version
of
the contract prior to the
close
of
hearings.
Finally,
the
record
establishes
that
the
County
was
instructed
to
~ot
consider
the
contract
in
voting
on
the a’~plicationand that
it
was
not
until
siting
approva.
was
grante~
that
the County
entered into the contract.
Public
officials
are
presumed
to
act
without
bias
and
should
not
be
disqualified
as
a
decision-maker
simply
because
revenues
are
to
be
received
by
the
County.
(LLL
Hauling.
Inc.
v. PCB (1985),
107 Ill.2d 33, 481 N.E.2d 664,
668.)
There
is nothing
in
the record to
indicate
that
the
County’s
decision was based on anything other than the statutory criteria.
11
The Board’s review of the record leads
it
to
conclude
that
the
procedures followed by the County were fundamentally fair.
Criterion
#
4
Section
39.2(a)
(4)
‘of
the
Act
requires
that
the
applicant
establish
that
the
proposed
facility
is
located
outside
the
boundary
of
the
100-year
flood
plain
or
that
the
site
is
flood—
proofed.
The Board must determine whether the County’s finding
that
Laidlaw
met
this criterion is against
the
manifest
weight
of
the
evidence.
Laidlaw’s
application
states
that the
drainage
features
and
flood
zone
data
depicted
on
available’
maps
appear to represent
conditions
characteristic
of
pre—mine
activities
or
at
least
prereclamation activities.
(C. 789—90.)
The record also indicates
that
Laidlaw attempted
to
obtain
more updated
information
regarding
the flood
plain
from the
Illinois
Department of
Transportation,
but
was informed that
it
could
provide
no
better
information
regarding
flood
zone
areas.
(C.
790.)
Laidlaw
st~tes
that
“it
is
not
anticipated
that
development
of
the
...
RPCF will
restrict
the
flow
of a 100-year flood, ‘result in
the
washout
of
solid waste from the
100-year
flood,
or
reduce
the
temporary
.
water
storage
capacity
of
the
100-year
flood
plain.
Additional
verification
studies
may
be
conducted
during
the
permitting
phase
of this
project
(if
needed).
Should subsequent development of this
area
occur,
stringent
design
criteria and
flood-proofing
in
full
compliance
with
all
applicable
regulations will be implemented.”
(C.’ 790.)
Hydrogeologist Rodney Bloese of Poth and VanDyke’testified on
behalf of Laidlaw.
Bloese testified that in attempting to discern
whether the facility would be located outside the
100-year
flood
plain, the information available was “pre—mining”.
(C. 320.)
This
information
indicited
that
“on
the
northwestern
portion
of the
600
plus acres there was an area that was in the flood plain area.”
(C. 120.)
However, this area is where Laidlaw intends to locate an
industrial park.
(C.
120.)
Bloese
testified
that
the
proposed
RPCF
facility
itself
is
not
located
in
the
pre—mine
flood
area.
(C’.
120.)
Bloese further testified that “(o)ne of
the
things
we
are going to have to do as
part
of
this
is
to
determine,
based
on
the information right now it indicates there is
no
indication that
it
is within
a hundred
year
flood
plain.
However,
along the
southern
portion
of
this site, Williams Creek, we
are
going
to
have
to perform additional
investigations to ascertain
is ~t indeed
within
a
hundred
year
flood
plain.”
(C.
120.)
On
recross-
examination,
Bloese testified that while Laidlaw had not excluded
the possibility of the site being within a 100—year
flood
plain,
it
had
also
found
no
evidence
that
the
site
is
within a hundred year
flood
plain.
(C.
182.)
Because of the absence of post—mining
information,
Bloese testified
that Laidlaw
intended to perform
additional
studies
to determine
if
any portion of the
site
is
within a 100-year flood plain.
(C.
182—84.)
12
Ron Meister, an engineer from Foth and VanDyke, testified that
he took the lead in designing the proposed facility.
(C.
190—91.)
Meister also testified that, based on the FEMA. flood control mapE
and the information from IDOT, the available information does not
indicate
a
100-year
flood
plain
problem
at
the site.
(C. 215.)
William Walker,
a retired Caterpillar worker and part—time
farmer, testified that he lived
three-eights
of
a mile northeast of
the
site.
(C.
481.)
Walker
testified
that
the
area
frequently
floods
and that the Township Road
196
which
Wa~keruses
to
access
his
property
becomes
covered
with
water.
(C.
481—84;
C.O.A.L.
Exh.1.)
On
cross-examination,
Walker testified
that
there
is
a
culvert
under
the
road
and
that
Williams
Creek
flows
under the
road.
(C.
485.)
Walker
testified
that
it
was
possible
that
there
was blockage in the creek when
the
road flooded.
(C. 489.)
Michael I4cCarrin, a geologist-hydrogeologist employed by Foth
and Vanlyke,
also
testified on behalf of Laidiaw.
(C.
492.)
McCarrin
testified
that
the
United
States
Geological Survey (USGS)
map was
“old
flood
plain
data” and that
the P~1A/HUD
map
was
“generated subsequent to the
strip
mining
as we were aware of
it.”
(C.
500-01.)
McCarrin testified
that
in
looking
at
these two
maps,
Laidlaw
noticed
that
the
flood
plain
delineations between the two
agencies
changed
and
the
“actual
flood
plain
from the
more recent
studies
dropped
south
of
our
site
and appear.
to be fairly removed
from
our site.
I
guess
it
was
our
basic
belief
that
the
flood
‘plain is not an issue
from
the
standpoint
of
it
actually
existing
near our RPCF, and in any case we have the ability and
we have so
set out the plan to develop the site now to flood proof the site if
there is a problem.”
(C.
501.)
McCarrin further testified that
“(a
3s an extra
back-up precaution we have
also
proposed to do
another flood plain type study to collect additional data during
the permit.”
(C. 503.)
On cross-examination,
McCarrin agreed
that surface mining
operations in strip mining coal could change
the 100-year
flood
plain.
(C. 505.) However, McCarrin testified that he believed that
the site “currently is not
in
a
300—year
flood
plain.”
(C.
504.)
This
opinion
was
based
on
a comparison
of
the USGS “pre-mining” map
and. the
FEMA/HUD
“post-mining” map.
(C.
505,
506.)
licCarrin
testified that he believed the
FEMA/HUD
map is a “post-mining” map
because it is dated 1980 and McCarrin understood that mining at the
site
was
completed
in
1978
such
that
the
map
would
haie been
prepared
after
the
mining
ceased.
(C.
510.)
Additionally,
McCarrin
testiVed
that
the
FEMA1.UD map is a “post—mining” map
becau&.
in comparing the maps, there is a sufficient surface change
which
led
McCarrin
to
believe
that
much
of
the
area
had
already
been
strip
mined
in
the
FEMA/HUD
map versus the USGS map.
(C. 509-
10.)
However, he agreed that the
PEMA/HUD
map did not show the
location of some strip mine pits or lakes which existed at the time
of
the
hearing.
(C.
516—17.)
)lcCarrin
admitted
that
it was
possible
that
the
FEMA/HUD
map
was
prepared
prior
to the completion
01
38-O4~2
13
of
all
mining
at
the
site.
(C.
517.)
McCarrin maintained,
however, that he believed that the more strip mining that was
done
on the site pushed the 100-year flood plain further south of the
site.
(C. 518-19.)
McCarrin testified that “strip mining
...
has
a tendency to show more storage on the site and
less
connection to
the,,basin.”
(C.
519.)
According to McCarrin, aerial photographs
of
the
site
show
“a
lot
more
strip
mining”
at
the
site,
but
also
show “a lot more storage water.”
(C.
519.)
)lcCarrin
testified
that
the
ponds
on
the
site
“appear
to
be
isolated
basins
with
no
direct
connection
to
the
Williams
Creek
basin.”
(‘C.
519.)
XcCarrin also testified that computer prOgrams
could
have
been run
to establish the location of the 100—year. flood plain
and
that the
report
he
prepared
recommends
that
such additional studies
may need
to
be
performed.
(C.
520-21.)
When
questioned
about
the
connection
between
the
flooding
of
Williams
Creek and the
location
of
the
100-year
flood plain,
McCarrin
testified
that
the
flood
plain was not the cause of the flooding and that he believed the
flooding
was
caused
by
debris
blocking
the
channel
and
the
culvert
which goes under the road being too
small.’
(C.
537—38.)
He
stated
that removing debris would be
part
of the
flood
protection
aetbods
implemented by Laidlaw.
(C. 536.)
Again, McCarrin
testified
that
the studies and data collected indicate
that
the
site is not
‘within
the 100—year flood plain.
(C. 538.)
C.O.A.L.
introduced
the
testimony.
of
Paul
Oldeker,
a
hydroqeologist
and hydrologist from Colorado.
(C. 428.)
Oldaker
testified
that
he
is ‘familiar
with
the
most commonly used models in
the ‘field
of
both
surface: water
and
groundwater.
(C.
430.)
Oldaker
defined
a
100—year
flood
plain
as
“the flood and the
area
that it would extend over that would occur from a flood with a
statistical
probability of occurring once
every
100 years.”
(C.
430.)
Oldaker reviewed the data regarding the location’of the 100-
year
flood
plain
and,
opined
that
the
data
was
“pre—mining”
data,
that the ‘current site has been altered by mining, and that there
was “no data presented with the application to make a determination
whether a 100-year flood currently
is
happening” would cover the
site.
(C.
431.)
Oldaker testified that,
in most cases, mining
activities would affect the location of the 100—year flood plain to
some
degree.
(C., 431-32.)
Oldaker testified that the location of
a
100-year
flood
plain
can
be
“calculated from design storm runoffs
what the drainage areas are
(sic),
how
much
will
run
off
certain
areas, et cetera, using generally computer models since there is
quite
a
bit
of
calculation.
The
EEC 1 model
is used for that.”
(C.
432.)
An
NEC
1
model
“is
the
model
used
by
the
Corps
of
Engineers to calculate 100-year flood plains.
The EEC
2 model then
calculates water surface profiles over a certain area.”
(C. 433.)
Oldaker testified that the data submitted by Laidlaw is deficient
because
it
does
not
include
current
topography
or
flow
data
calculations.
(C.
433.)
Oldaker testified that the location of a
100-year
flood
plain
cannot
be
accurately
determined
without
current topography.
(C.
449.)
0
14
C.O.A.L.
contends
that
Laidlaw
failed
to
establish
with
sufficient
certainty
that the facility is not located within the
boundary of the 100-year flood plain or that the ‘site is
flood-
proofed.
Laidlaw contends that the County’s finding that Laidlaw
met the “flood plain criterion” is not against the
manifest
weight
of the evidence.
In Tate v.
IPCB
(4th Dist.
1989),
188 Ill.App.
3d 994,
544
N.E.2d 1176, petitioners challenged the Board’s decision upholding
the Macon County Board’s granting
f site approval in
part
because
the applicant failed to establish the exa~tlocation of the 200-
year
flood plain.
Tate is analogous to the instant case in that in
both
the record contained testimony of flooding in th. area (~iL.at
1187), testimony that the facility itself would not’ be located in
the flood plain
(I~
atj3189),
and the
recognition
that
a
new study
was needed to determine the exact location of the flood plain
(Xi.
at 1181, 1188).
The appellate court affirmed
the
Board
even though
the applicant did not identify the exact location of the 100-year
flood plain.
(~g, at
1195.)
Therefore,
the Board
finds
that
simply because the record contains
some
uncertainty as to the exact
location of the flood plain and indicates that additional studies’
may need to be performed does not in and of itself
lead to
the
conclusion
that
the
County’s
finding
that
Laidlaw
met
this
criterion is against the manifest weight of the evidence.
The
Board
finds
that
the County
had sufficient
evidence
before
it to find that the RPCF will not be located within the
boundary
of
the 100-year flood plain.
Sàveral witnesses
testified
on behalf of
Laidlaw that the available data indicates the RPCP will be located
outside the flood plain.
A decision is against the manifest weight
of
the
evidence if the opposite result is clearly evident, plain,
or undisputable from the record.
(File
V.
D
& L Landfill
(5th
Diet.
1991’),
219
Ill.
App.
3d 897,
579
N..E.2d 1228,
1232.).
In
reviewing the record, the Board
cannot
find
that
the conclusion
that Laidlaw ‘failed to establish that the
RPCP
is “within the flood
plain is “clearly evident, plain, or undisputable.”
Moreover, the
record also contains sufficient evidence for the County to find
that,
should additional studies
be necessary and
such
studies
reveal that the RPCF is within
the
flOod
plain,
the site will be
flood-proofed.
Therefore, the Board concludes that the County’s
finding that Laidlaw met criterion #4 is not against the manifest
weight of the evidence.
Criterion
#
2
C.O.A.L. also contends that the County’s finding that Laidaw
established
that
the
“facility
is
so
designed,
located,
and
proposed to be operated that the public health, safety, and welfare
will. be protected” is against the manifest weight of the evidence.
(Ill. Rev. Stat. 1991, cb. 111 1/2, par. 1039.2(a)(2).)
C.O.A.L.’s
primary assertion is that the facility
is not located so as to
protect the public health, safety, and welfare.
Laidlaw contends
O138-O~t~t~
15
that the County’s
finding is supported by the record and is not
against the manifest weight of the evidence.
Rodney
Bloese,
senior
project
hydrologist
for
Foth
and
VanDyke,
testified that the facility is located so as to protect
the
health
safety,
and
welfare.
(C.
142—43.)
Bloese
testified
that
his
investigation
included
reviewing
public
information
regarding
the
foundation
of
the
site,
the
prior
strip
mine
activity,
ground water
(C.
118-22),
and seismic impacts
(C.
122—
25).
(C.
114—43; Laidlaw Exh.
22,
23,
31.)
John Devon, vice-president and general manger of Marston
and
Marston,
an
consulting
firm
which
provides
mining
engineering,
geological
engineering,
and
geological
‘services,
was
retained
by
the
County
to
evaluate
the
safety
of
the
site.
(C.
357,
424.)
Devon
testified that he has worked on coal mining projects and has
a Bachelors Degree in geology.
(C. 358.)
Devon
testified
that
he
reviewed
Laidlaw’s
application and
that,
in his
opinion,
the
“safety of the landfill has not been demonstrated.”
(C.
364, 617—
19.)
Devon explained that the question in
his view was whether
the
landfill could be constructed at the proposed location safely
and
that be
did not know the answer to this
question.
(C.
364.).
According
to Devon,
the proposed site
is
unique
with
potential
unknown
risks and the application fails to address those risks.
(~.
364-65.)
In
particular,
Devon
questioned
whether
the
“foundation conditions” were adequate.
(C. 365, 412, 423.)
Devon
testified that “the answer may be that it is not
a safe
location
a)nd
the answer may be that,it is a safe location.
The risks have
not been analyzed.”
(C. 366.)
Devon testified that assuming the
facility’
is
“properly
engineered
and
designed”
be
still
had
concerns about the foundation.
(C.
369.)
Devon also’ speculated
that ‘the
mining
activity
at
the
site
may
have
weakened
the
foundation.
(C.
370-85.)
In
addressing’ the
liner,
Devon
questioned’ the suitability of the clays at the
site
noting that a
“brief ‘visit” to the
site
indicated the presence of rocks
and
stones, but also noted that these materials could be removed.
(C.
367,
385,
387-87.)
Devon
further testified
that the
risk
of
‘seismic activity had not been adequately addressed.
(C. 385.)
In
conclusion, Devontestified that “to buy into this thing is a’blind
marriage.
So
my
opinion
is
that
the
foundation
is
not
an
engineered
structure,
it is unpredictable.
If I had to
make a
decision on whether this landfill could be constructed in the best
interests of public safety and health, I would
say I
don’t
know
if
it can or not.
I couldn’t approve it.
‘I
couldn’t
warrant
it.
I
couldn’t guarantee
it.
Neither am I saying,
to finish, that it
won’t
work,
it
will
never
work.
Neither
am
I
saying
that
the
Laidlaw people or their engineers can’t determine what those risks
are
and answer the
questions.
But at this point there
is not
enough information.”
(C.
386, 389;
C.
624.)
On cross-examination,
Devon stated
that
his
expertise
was
“not
in
landfills..”
(C.
394,
403,
412.)
Devon
bad
never
designed
or.
0138- OL~Le5
16
help
construct
a
landfill nor had he ever
inspected
a facility
during operations.
(C.
415,
416.)
Devon also ‘testified that be
did
not know how many
landfills
in the
state
were
located
on
abandoned strip mines.
(C. 393—34.)
Paul
Oldaker
also
testified
that
the
application did
not
contain sufficient information to determine whether the facility is
located so as to protect the health safety and welfare.
(C. 438.)
C.O.A.L. presented the testimony of Walter Neal, a pit foreman
for Arch Mineral Corporation.
(C.
480.)
Neal testified that bu
experience with
coal
mine sites
led him to
conclude that ‘the
location
of
the
site did not protect
the
health,
safety,
and
welfare.
(C. 465—67.)
On cross—examination, Neal testified that
he was not familiar with the
“concept
of
‘the
factors
of
safety”
with
regard
“to foundation stability” nor was he familiar with
landfills in general.
(C.
468.)
Neal
testified that he did not
like the proposed site, but that he
had
no
technical
expertise to
back up that opinion.
(C. 478.)
Also testifying
for
C.O.A.L.
was Richard Smith, an employee of
Preman
United
Coal
Company,
who has
worked
in
the
coal
mines
where
the
facility
is proposed to be
located.
(C.
625-26.)
Smith
questioned the adequacy of the foundation given the prior
mining
activity.
(C.
633—34.)
Mike McCarrin also testified on behalf of Laidlaw regarding
criterion
‘#2
and ‘stated
that
Laidlaw had provided
sufficient
information in its application to determine, whether the facility
was
designed
and
located
so
as
to
protect
health,
safety,
and
welfare.
(C. 502—03.)
In
particular,
EcCarrin
testified
that
the
foundation
investigation
contained
in
the
application was complete
and that the location of the site was adequate to protect health,
safety,
and
welfare.
(C.
523—24.)
)4cCarrin
also testified that
the possibility of seismic activitywas cOnsidered in designing and
locating the facility.
(C. 547—48.)
Dr. Nandu Paruvakat, a geotechnical
engineer employed
by
P0th
and
VanDyke,
testified
that
be
designed
approximately
fifteen
landfills
in
different
foundation
conditions,
three
of
which
were
located on strip mines.
(C.
552.)
Paruvakat
testified
that
he
believed
that
the
application
aubmitted
by
taidlaw
contained
sufficient
information
to
show that
the public
health,
welfare,
and
safety
would
be
protected.
(C.
554,
576.)’
According
to
PàruvaJcat,
“(the
~undation
conditions
in
this
particular
case
are
good
enough that the failure of the foundations or
the
slopes
can
be
practically ruled out.”
(C. 554—55;
C. 582.)
Paruvakat explained
the boring process used in evaluating the foundation.
(C. 556-67;
Laidlaw
Exh.
31.)
C.O.A.L.
contends
that
the
County’s
decision that Laidlaw met
criterion
#2
is against the manifest weight of the evidence because
OI38-Ol~&
17
the County “ignored the findings of their own expert, Marston and
Marston, with respect to the stability of the proposed, site....”
(Brief at
17.)
C.O.A.L. contends that because Laidlaw’s experts
were
hired
by
Laidlaw,
Marston and Marston’s testimony that the
site
does not meet criterion #2 is
more
credible
than
Laidlaw’s
witnesses testimony
that
the facility does
meet
criterion
#2.
C.O~’A.Lcites File v. D
& L Landfill
(5th
Dist.
1991),
219
Ill.
App. 3d 897,
579 N.E.2d 1228 in support of
this
contention.
In
File,
the
court, citing Fairview Area Citizens Taskforce
v. PCB (3d
Dist.
1990),
198
Ill.
App.
3d
541,
.555
N.E.26
1178,
1185,
recognized that where there is conflicting evidence on criterion
#2,
the
determination
is
purely
a
matter
of
assessing
the
credibility of the witnesses.
(J~.
at
1236.)
In
jr~i~,
the
court noted that conflicting ‘testimony
was given on criterion #2
and recognized that a determination of whether the applicant met
its burden was a matter of assessing the credibility of
expert
witnesses.
(555
N.E.2d
at
1185.)
The village
board
had decided
in
favor of the applicant on criterion #2
and
the
court
held
that
since
there
was
evidence to
support the village’s
‘ruling,
the
finding of the village board on criterion #2 was not against the
manifest weight of the evidence.
~
File
and
Fairview
merely
establish
that
where
there
is
‘conflicting expert testimony,
the finder of fact
must
weigh
the
credibility of the witnesses.
Here,
in finding that Laidlaw met
its burden of establishing that the facility
is so
located
as to
protect
the
health,
safety,,
and
welfare,
the
County
apparently
found
Laidlaw’s
expert
witnesses
more
credible
than
that
of
John
Devon
of
Marston
&
Marston.
There
is
ample
evidence in the record
to
support
the
County’s
finding.
Consistent
with’ ~jj&
and
Fairview,
the Board will
not reweigh ‘the
evidence or reassess
credibility.
(See Fairview at 1185.)
The
Board
concludes that the
County’s finding that Laidlaw met its burden of establishing that
the facility is sO designed, located,
and
proposed to be operated
that the public heath, safety, and welfare will be protected is not
against the manifest weight of the evidence.
In summary, the Board finds that the
County
had
jurisdiction
over
Laidlaw’s
application
for
siting
approval,
that’
the
proceedings
below
were
fundamentally
fair,
and
that
the
County’s
findings on criterion #2 and #4 are’ not against the manifest weight
of
the
evidence.
This
constitutes
the
Board’s findings of
fact
and conclusions
of law in this matter.
ORDER
For
the
foregoing
reasons,
the
County’s
decision
granting
Laidlaw siting approval is affirmed.
0138-
0L4
18
IT
IS
SO
ORDERED.
3.
Theodore
Meyer
abstains.
Section
41
of the Environmental Protection Act
(Ill.
Rev.
Stat.
1991,
ch.
111
1/2,
par.
1041)
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 Il.
Adin.
Code 101.246, Motions for Reconsideration, and Casteneda
V.
IllifloiE
Human
Rights
Commission
(1989),
132
Ill.
2d
304,
547
N.E.2d 437.)
I,
Dorothy
H.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board, hereby certify that the a
e opinion and order was adopted
on the
~
day
of
,
1993
by
a
vote of
5—c
77~A
i~L
Dorothy H. (q(inn, Clerk
Illinois Po~.lutionControl Board
01 38-OL4148
