1. (Tr. at 131.)
    2. Ex Darte contacts
cITIZENS
AGAINST
REGIONAL
LANDFILL,
)
)
Petitioner,
)
)
v.
)
PCB 92—156
)
(Landfill Siting
THE
COUNTY
BOARD
OF
WHITESIDE
COUNTY
)
Review)
and
WASTE
MANAGEMENT
OF ILLINOIS,
)
INC.,
)
Respondents.
PATRICK 3. BUDEC APPEARED
ON
BEHALF
OF
CITIZENS AGAINST REGIONAL
LANDFILL;
WILLIAM
BARRETT
AND
MATTHIAS
LYDON APPEARED
ON
BEHALF
OF
THE
COUNTY
BOARD
OF
WHITESIDE COUNTY;
DONALD MORAN
APPEARED
ON
BEHALF
OP
WASTE MANAGEMENT
OF
ILLINOIS,
INC.
OPINION
AND
ORDER
OF
THE BOARD
(by B. Porcade):
This
matter
is
before
the
Board
upon
a
petition
for
hearing
filed
by
Citizens
Against
Regional
Landfill
(CARL)
on
October
20,
1992.
CARL
is
a
citizens group
that participated in
the
siting
proceeding
and
whose members
are
affected by .the proposed
facility.
CARL, a third-party petitioner, 6ontests
the
decision
of the Whiteside County Board (Whiteside County) to grant siting
approval to Waste
Management
of Illinois,
Inc.
(WMII) for a
regional pollution control facility.
This appeal is brought
pursuant to Section 40.1(b) of the Environmental Protection Act
(Act).
(415 ILCS 5/40.1(b)
(1992).)1
In its JanUary 21, 1993 order,
the
Board granted a motion
for sanctions against Mr. Hudec, attorney for CARL, for filing a
brief referencing facts not supported by evidence in the record.
WMII filed its statement of costs on January 29,
1993.
On
February 16,
1993, Mr. Eudec filed a “Memorandum in Opposition to
the Bill of Costs filed by Waste Management of Illinois,
Inc.”
WMII
filed a “Motion for Leave to File Reply to Memorandum in
opposition to Bill of Cost” and “Response of Waste Management in
Opposition to the Bill of Costs Filed by Waste Management of
Illinois,
Inc.”
On
February
25, 1993,
CARL filed a “Brief in
Support of Motion for Reconsideration of Sanctions Imposed Upon
The Act was formerly codified at Ill.Rev.Stat. 1991, ch. 111
1/2, par.
1001 ~
0139-0523
Counsel for Petitioner”.
The Board will not address the above
filings in today’s order but will handle
the
matter
of
sanctions
in a separate Board order at a later date.
PROCEDURAL HISTORY
WMII
filed its request for local siting approval of a solid
waste landfill
and
landscape waste
transfer
station on April 30,
1992.
The proposed site is located at the northeast corner of
the intersection of Yager Road
and
US Route 30 (Lincoln Road)
in
unincorporated
Whiteside
County
and
has been given the name
Prairie
Hill
Recycling
and Disposal
Facility.
WMII propoees~:the
development
of
a
229
acre solid waste disposal facility on. a.
parcel
of
land
consisting
of
approximately
423
acres.
The Public
Works
Committee
of
Whites ide
County
conducted
public
hearings
on July
30
and
31,
1992.
The
committee
accepted
written
comments
for
thirty
days
after
the
hearing.
On
September
15,
1992,
Whiteside
County,
in
a
written decision,
approved
WMII’a
siting
request
by
a
vote
of
18
in
favor,
7
against
with
2
board
members
absent.
(C
919.)2
CARL
filed
its
petition
for
bearing
with
the
Illinois
Pollution
Control
Board
(Board)
on
October
20,
1992
•
The Joard
conducted
a
hearing
on this
matter
on
December
18,
1992~in
Morrison, Whiteside County, Illinois.
The petitioner fil.d its
brief on January
4,
1993.
On
January
21, 1993, ~theBoard granted
a motion to strike pages 12 through 28 of the petitioner’s brief
and amended the briefing schedule.
The respondents filed their
briefs on
January 25,
1993.
CARL filed its reply brief on
February 4, 1993.
In its reply brief, CARL contends that “it
was denied its
right
to
a
fundamental
hearing,
but
defers
further
argument
on
such
issues
until
the Board rules
on
pending
motions
relative
to
the
same.”
(Reply
Br.
at
2.)
The.Board
emphasizes
that
briefs
have
been
filed
in
this
matter
and
the
record
is
closed.
In
its
petition,
CARL
contests
Whiteside County’s
approval
of
the
proposed
facility
for
the
following
reasons.
a
•
The
Whiteside
County
Board
acted
contrary
to
the
manifest
weight
of
the
evidence
in
finding
that
it
had
jurisdiction
to
hold
the
public
hearing.
CARL
claims
2
References
to
the
record
filed
by Whiteside
County
shall
be
designated by the
page
number.
The transcripts
from
the
hearing
before
the
county
are
contained
in
the
county
record
at
pages
C
1
to
C
916.
The
transcript
from
the
Board’s
December
18,
1992
hearing
will
be
referenced
as
Tr.
at
—.
0139-05214
3
that
WMII
failed to notify all property owners within
250 feet of the proposed site.
CARL asserts that the
notices submitted failed to include a proper legal
description or an accurate description of the site.
CARL further asserts that Whiteside County failed to
make the application for site approval and supporting
documents available for public inspection for a
sufficient time.
b.
The finding of compliance with the nine statutory
criteria set forth
under
Section 39.2(a) of the Act is
contrary to the manifest weight of
the
evidence.
CARL
claims that
WMII
failed to establish on the record 8 of
the 9 statutory
requirements.
c.
The Whiteside County Board improperly changed the terms
of the. proposed facility after
the
record
was
closed.
CARL claims that it was denied the right to
review
the
amended provisions of the siting proposal.
In its September 15,
1992 Finding of Facts and Decision,
Whiteside County found that all requisite notices
were provided,
that
WMII
had filed, and the county bad made available for an
adequate time the requisite materials required by statute.
(C
922.)
Whiteside County found that it had jurisdiction to
consider and decide the application
(C 922.)
Whiteside
County
denied
motions
to
dismiss
from
CARL
claimi:rtg lack of
jurisdiction,
finding
the
submissions
by
CARL
contained
unsupported
allegations.
(C
922.)
On November 10, 1992,
WHIl
filed
a
motion to strike the
jurisdictional issue from CARL’s petition.
CARL did not file a
timely reply to WMII’s motion to strike.
On
December
3, 1992,
the
Board granted WMII’s motion to strike the allegations
concerning jurisdiction of Whiteside County.
On
December
17,
1992,
CARL filed a motion for reconsideration of the Board’s
granting
of
the
motion
to
strike.
CARL
contended that the
hearing officer, in pre—hearing conferences, had informed the
attorney for CARL that WMII’s motion to strike would be held
until
the
attorney
for
CARL
was
able
to
review
the county
record.
On
December
17, 1992, the Board denied the motion f
or
reconsideration but permitted CARL to
present
the basis for its
motion for reconsideration before
the
hearing officer at hearing.
CARL did not raise the issue of jurisdiction at the
December
18,
1992 hearing.
CARL has not
pursued
the allegation in its
petition, that Whiteside County improperly changed
the
terms of
the proposed facility after the record
was closed and denied
the
right
to
review
the
amended
provisions
of
the siting proposal.
This matter was not presented at the hearing and is not argued in
the briefs.
The burden of proof is on the petitioner.
(415 ILCS
5/40.1(b)
(1992).)
CARL has not presented any evidence on
01 39-0525
4
jurisdiction or changes to the proposal after the record was
closed.
CARL has failed to meet its burden of proof, therefore,
these areas are not at issue before the Board.
BACKGROUND
The proposed facility is to
be
located
in
Whiteside
County
approximately
three
miles
southeast
of
Morrison,
Illinois.
(C
950.)
The
property
encompasses approximately 423 acres.
(C 950.)
Approximately
229
acres
will
be
developed
for
the
solid
waste
disposal
area
and support
features,
including
administrative
building,
maintenance
and
operation
facility,
recycling
area,
public
drop-off
area
and
landscape
waste
transfer
station.
(C
950.)
The
proposed
facility
is
adjacent
to
the
existing
landfill
and
in
a
low
population
density,
agricultural
area.
(C
951.)
While
the
proposed
facility
is
adjacent
to
the
existing
Whiteside
County Landfill, it will
not
be designed or operated in
conjunction with the.existing landfill.
(C.995.)
The
service
area
consists
of
Whiteside
County,
Winnebago
County,
Boone
County
and
portions
of
Lake, Du
Page
and
Cook
Counties.
(C
960.)
The landfill,
will
provide
disposal
capacity
for
the
service
area for approximately 27
years.
(C
950.)
The
landf
ill area has
been
subdivided
into
24
pbeses,
with
landfilling
operations
commencing
in the
soia~heastern
corner of
the
site
and
rotating
in
a
counterclockwise-tashion
toward
the
western perimeter of
the
site.
(C 1192.)
Regulated
hazardous
waste will not be accepted at
the
proposed facility.
(C..995.)
Within a one rile radius of
the
site there
are
approximately
twenty-four residences.
(C 1174.)
Outside one
mile and
within
one
and
one half miles from
the
site there are an additional
twenty-six residences.
(C 1174.)
The proposed site is
located.
Son
US Route
30, a two-lane asphalt paved thoroughfare
traveled
by
trucks
and
automobiles
which
has
a
55
mile
per
hour
speed
limit.
(C
1200.)
On
January
13,
1993,
CARL
filed
a
“Motion
for
Review
of
Bearing
Examiner
Rulings
Pertaining
to
Discovery
and Hearing
Record”
at
the
December
18,
1992 hearing.
CARL claims that
the
hearing officer erred:
1)
in not following the directives of the
Board’s
December
17,
1992 order regarding William Barrett’s
deposition and
2) in refusing to allow
the
petitioner to call Mr.
Barrett as a witness.
CARL
seeks
a reversal of
the
hearing
officer’s
rulings.
Petitioner
further
requests
that
either
the
matter
be
remanded
for
further
proceedings
or
in
the
alternative,
reverse the siting approval granted by Whiteside County.
On
January 22,
1993, WMII filed its memorandum
in
opposition
to
petitioner’s motion.
On January 27, 1993, CARL filed a motion to
file reply and its reply.
CARL requests leave to file a reply to
0!39-0526
5
“promote the interest of justice ‘and to avoid any material
prejudice.”
The
Board
grants
CARL’S
motion
for
leave
to
file a
reply.
CARL
objects
to
the
hearing
officer
limiting
the
scope
of
the
deposition.
CARL
further
argues that the hearing officer’s
limitation of
the
scope
of
the deposition prohibited CARL
from
fully exploring all avenues of discovery.
CARL contends
that
this
limitation
was
the
basis
of
the
hearing
officer’s
refusal
to
allow
Mr.
Barrett
to
testify.
In
addition,
CARL
argues
that
despite
the
limited
nature
of
the
deposition
there
are
sufficient
grounds
for
a
claim
of
bias
and
the
appearance of a,
if not an
actual, conflict of interest.
WMII
contends that
the
hearing
officer
acted
in
accordance
with
the
directives
of
the
Board’s
order in limiting the
scope
of
Mr.
Barrett’s deposition to the
compensation
received by Mr.
Barrett.
WMII
argues that
the
hearing officer properly
refused
to allow Mr. Barrett to be called
as
a
witness.
WMII
argues
that
the attorney for
CARL
has failed to
substantiate
the
information
he has ‘claimed to receive
concerning the
payment
of
fees
to Mr.
Barrett
•
WMII
claims that the deposition
provided no
evidence
that payment to Mr.
Barrett
was contingent on approval of
the
landfill siting.
WMII
argues
that there
is
no
evidence
that CARL
was
unable to
obtain necessary
information
from other
sources
than
Mr.
Barrett.
Prior
to
addressing
the
arguments
raised
by
the,
parties,
the
Board will recount the
events leading to
the
“hearing
officer’s
ruling.
On
December
15, 1992, Whiteside County
filed an ~Eaargency
Motion
to
Quash
Petitioner’s
Subpoenas
and
Deposition of
Whiteside County Special
Assistant’s
State’s Attorney William
Barrett”.
The
hearing officer granted
the
motion
and
issued a
protective order prohibiting the deposition
of
Attorney
Barrett.
On December 17, .1992, CARL submitted an ~Esergency
Motion to
Require the Attendance of William Barrett at Deposition and
at
Hearings”.
In
its
December
17,
1992 order,
the
Board
stated;
Consequently,
the Board specifically
vacates
the
protective order entered by the bearing officer
pertaining
to testimony by Mr. Barrett.
The
Board
notes that this new information was not
before
the
hearing
officer
at
the
time
be issued his protective
order.
As
a result, the Board is vacating
the
order
based upon
new information, not reversing the bearing
officer.
The Board is not reversing the hearing
officer order because nothing in the record indicates
it was in error based upon facts
known
at the time it
was issued.
The Board orders that the deposition of
Mr.
Barrett be allowed for a minimum amount of time
0.139-0527
6
determined by the bearing officer, presumably not more
than two hours, tomorrow morning at the time scheduled
for
the
beginning of
the
hearing
in
this
matter.
At
the conclusion of the deposition,
the
hearing officer
shall
convene
the
regular
hearing.
The
decision
of
whether
to
require
or
admit
testimony
by
Mr.
Barrett
is
left
to
the
discretion
of
the
hearing
officer,
based
upon
his
evaluation
of
the
deposition.
Mr.
Barrett
was deposed on
December
18,
1992,
prior
to
the
regularly
scheduled
hearing,
with
the
hearing
officer
in
attendance.
The
hearing
officer
denied
CARL’s
request..to
have
Mr.
Barrett
testify
at
hearing.
(Tr.
at ‘15.)
Based
on
the
deposition,
the
hearing
officer
determined
that CARL had
not
demonstrated
that
the
information
was not available tram other
sources
and
that Mr
•
Barrett’s
testimony was necessary to
the
proceedings.
(Tr. at 15.)
In addition
the
hearing
officer
determined
that
the county
would be unduly
burdened
if
Mr.
Barrett
wire
required
to‘remove
h
(~elf
as
attorney due to b.is
testifying.
(Tr.
at 15.)
These ar.
the .aame
standardi.
~that’; the
hearing
officer
applied
in
his
December :16,
I99Z’order~,;granting
the
motion to’
quash the
‘subpoena.
The
Board
affirms
the hearing officer’s
interpretation
of
the Board’s order
in
limiting the
scope
of
the deposition.
The
Board vacated the hearing officer’s prior order solely on
the
basis of the submission of new facts.
The Board did not
dispute
the
standards
that
the hearing
officer followed in determining
the
conditions
under which
the
deposition of
opposing
counsel
should be allowed.
In
the
December
17,
1992
Board
order, ‘the
Board
noted that the
.
information was not
described
in
the
affidavit
but
“that this
statement,
under
oath,
provides
an
adequate basis to
justify
exploration, by
discovery,
of
~the
infOrmation Mr. Barrett may
possess
regarding his
role
and
compensation in such
contract.”
The
Board
permitted
the
deposition based on
the
allegations
contained
in
CARL’s
motion
and
sought discovery on
the
matter.
The
hearing officer
was
granted
the authority over the
deposition.
The
Board
ordered
the
hearing
officer’
to
limit’
the
time
of
the deposition, observe
the deposition and
make
a
ruling
based on the context of the deposition.
By limiting
the scope
of
the deposition the hearing officer was
able
to obtain
the
information on which to determine if Mr.
Barrett
should be
allowed
to
testify.
Both CARL and
MMII
reference pages from the deposition
transcript that
are
not part of
the
evidence in
this
matter.
CARL
has
previously
argued
that
the
entire deposition transcript
should be submitted
into
the record as an offer of proof.
At
hearing Mr. Hudec sought clarification from the hearing officer
as to the handling of the transcript from Mr. Barrett’s
0139-0528
7
deposition.
Mr. Rudec stated:
.1
just
want
to
make
clear
that
the
extent
that
it
——
part
of
the
deposition
is
not
to
be
part
of
the
record,
we’re asking that
the
balance
of
the deposition and the
exhibits thereto be admitted solely for purposes of an
offer of proof in support of our
contention that we
should have been permitted to fully depose him as
well
as call him
as a witness.
(Tr. at 131.)
The attorney
for
MMII
objected
to
submitting
the entire
deposition as an offer of proof.
(Tr.
at 133.)
The bearing
officer declined to
submit
the whole deposition to
the
Board.
(Tr. at 136.)
The
hearing officer
declared
that
submitting
the
whole deposition transcript would defeat “the purpose of Mr.
Barrett
not
testifying
here
and
any
ramifications
as
appearing
of
counsel
to
flow
from that.”
(Tr.
at
136.)
The
parties
agreed
that
the
bearing
officer
would
indicate
those
portions
he
believed
should
be
submitted,
allow
the
parties
to
submit
arguments
to
him
in
a
telephone
conference
and
then
submit
the
agreed
upon
portions
to
the
Board.
(Tr.
at
137.)
Portions
of
the
transcript
from
the
deposition
of
Mr
•
Barrett
were
submitted
to
the
Board
by
the
bearing
officer
on
January
11,
1993.
Only
those
portions
of
the transcript submitted by the
bearing
officer form
the
basis
of
the
Board’s
decision.
.
The
Board
will
not
consider
any references to facts not in
evidence
or arguments
based
upon
any
such
reference.
The
Board
finds
that
it
is
not
necessary
for
the
complete
deposition
transcript to
be submitted to
the
Board
as
an
offer
of
proof.
The
portions
of
the
deposition
submitted
by
the
hearing
officer provide a sufficient basis to review the bearing
officer’s ruling.
The portions of the deposition present.
a
summary
of the deposition testimony and the arguments
presented
by the parties.
After
a review of the portions of
the
deposition
submitted
by
the hearing officer and
the bearing officer’s ruling, the
Board finds sufficient support in the
record for
the
bearing
officer’s refusal to require Mr. Barrett to testify, and
therefore affirms the bearing officer.
In the hearing officer’s order of
December
16, 1992, the
hearing
officer
stated
his
concern
over
requiring
the
deposition
of
an
opposing
attorney.
The
bearing
officer order specified
conditions under which an opposing attorney may be required to
testify.
At
the
deposition, CARL made no showing that any of the
conditions
specified
by
the
hearing officer existed.
The hearing officer, after sitting through the
deposition
of
Mr. Barrett,
found that CARL did not present any circumstances
0139-0529
8
that
would
require
Mr. Barrett to testify.
The bearing officer
was also concerned with the burden that would be placed on
Whiteside
County
if
Mr.
Barrett
were
required
to
withdraw
as
counsel
for
the hearing scheduled that day.
The Board is
extremely reluctant to require an attorney of record to testify,
without
a
showing
that
only
that
attorney
can
provide
necessary
information.
(See also Gallatin National Co.
v.
The Fulton CountY
Board
(June
15,
1992), PCB 91—256.)
Courts
have looked with disfavor
on .the
practice
of
deposing
opposing counsel, finding
that such
practice
is
disruptive
.oZ
the
adversarial
process
‘and
lowers
the
standa±ds of
the
legal
profession.
(Shelton
v.
American
Motors
Cam.
(8th
Cir.
1986),
805 ?.2d 1323,
~
also
Marco
Island
Partners
v.
Oak
Develonment
Cor’o.
(N.D.
Ill.
1987),
117
F.R.D.
418.)
Experience
teaches
that
countenancing unbridled depositions of
attorneys constitutes an
invitation
to
delay,
disruption
of
the
case,
harassment
and
perhaps disqualification of the attorney to be
deposed.
(N.P.A.
Coru. v. Riverview
Narrow
Fabrics (X.D.N.C. 1987), 117 F.R.D.
83.)
It is appropriate to require
the
party seeking to depoee~an
attorney to establish a legitimate basis for the request and
demonstrate
that
the
deposition
will
not
otherwise
prove
toverly
disruptive
or
burdensome.
(~)
The conditions enumerated by
the
hearmn~officer
in his
December
16,
1992
order
and
specified as the basis
for
his
refusal
to
require
Mr.
Barrett
to
testify,
hive
been
employed
by
the courts when considering motions related to depositions of
attorneys.
Deposition
of
opposing
counsel
should
be
limited
to
situations
where
it
is
shown
that:
(1)
no
other
means.
exists
to obtain the information
than
to
depose
opposing
counsel;
(2)
the
information
sought
is
relevant and nonprivileged; and
(3) the information is
crucial to the preparation of the case.
(Shelton, 805 P.2d 1323;
$j~
also Earriston v.
Chicago
Tribune Co.
(M.D.
Ill. 1990), 134 F.R.D. 232, ~
peninsular ‘Title Co. v. Palm Beach County (S.D. Pla.
1990),
132 P.R.D.
301, Advance Systems. Inc. ofGreen
pay v. APV Baker
PMC (E.D.
Mis.
1989),
124 P.R.D.
200.)
The
Board
notes
that
the
above
cases
rely
on
Federal
Rule
of
Civil
Procedure
26(a),
which
does
not
specifically
apply
to
proceedings
before
the
Board.
However,
the
Board
finds
the
standard
to
be
consistent
with
the
Board’s
procedural
rules on
the production of information
(35
Ill.
Adm.
Code
101.261)
and
limitations concerning testimony from attorneys.
Requiring
an attorney to testify is not strictly prohibited
0139-0530
rarely be resortea
‘~
ano
uuii~
~
wu~z,
~
necessitate.
(Cannella
V.
Carmella
(2d Diet.
1971),
132 Ill. App.
2d 889,
270
N.E.2d
114.)
In
Christensen
V.
United
States
(1937),
90 F.2d 152,
the
court
quoted
from
‘1jones
Commentaries
on
Evidence”
(Second
Edition)
S2154,
Vol.
5,
page
4079.~
...The dual relations of attorney and
witness
in
and
for a cause
on
trial
is
not
compatible
with
the
conception
of
an
attorney
as
an
officer
of
the
court
and inclines to disrupt the normal balance of judicial
machinery.
It is tolerated at all only because
occasionally proper in the interests of justice and
because, rather than formulate a rule of
absolute
exclusion as has been done in some instances as to
testimony by attorneys on disputed
and
material issues
of fact,
the great majority of the courts
prefer
to
leave
the
question
to
the
sound
discretion
of
members
of
the
bar
with
a threat
of
scathing
reprimand
in
case
of
abuse.
The
Illinois Supreme Court
has
held
that
the trial court
has
wide discretion in refusing to
permit
attorneys
to
testify,
especially so where, as here,
another
witness
was
available
to
testify.
(Peo~1ev. King (1977),
66 111.
2d
551,
363 N.E.2d 838.)
CARL sought to depose Mr
•
Barrett concerning the
fees
paid
to
him.
Information on Mr. Barrett’s fees could also have been
obtained from Whiteside County
or
MMII.
‘The
record
does
not
disclose
any attempt by petitioner to secure
this
information
from Wkiiteside County or
MMII.
The attorney—client relationship
makes
it
ethically
improper
for
an
attorney
to
testify
in
most
matters.
,
(Lavin
v.
Civil
Service
Comm~ (1st
Djst.
1974),
18
Ill.
~pp.’
3d 982,
310 N.E.2d
858
.)
Ethical standards, require
an attorney to
withdraw from the
case if he is required to testify.
(Illinois Rules of
Professional Conduct, Rule 3.7.)
Ethical considerations may have
compelled
Mr.
Barrett’s
withdrawal
if
he
bad
been
required
to
testify.
‘
See
Annotation
Attorney
as
Witness
for Client
in
Civil
Proceedinas
—
Modern State
Cases,
35
A.L.R.
4th
810
(1985)
and
crowley,
Modernizing
and Liberauizina
the
Law
of
Evidence,
57
Chi.
Kent
L.
Rev.
191.
~
The
Board
notes
that
this
comment
relates
to
circumstances
where an attorney is to testify at the request of his client.
The
Board
believes
that
these
general
principles
have
considerable
relevance where, as here, the testimony of an
attorney
is
sought
by
opposing
counsel.
0139-0531
.~
~‘i.~uu
reason to
reverse
tne
hearing officer’s
ruling,
the
relief requested
by
CARL
is inappropriate.
Given
the
decision
deadline
of
February
28,
1993 in this matter, time does not allow the Board to remand
this matter for further proceedings.
STATUTORY
BACKGROUND
Public
Act
82—682,
commonly
known
as
SB-l72,
is
codified
in
Sections
3.32,
39(c),
39
•
2,
and
40.1
of
the
Act~.
It
vests
authority
in
a
county
board
or municipality
to
approve
or
disapprove
the
siting
request
for
each
new regional
pollution
control
facility.
These
decisions.may
be
appealed
to
the
Board
in
accordance
with
Section
40.1
of
~theAct..
The Board’s scope:
of.
review
encompasses
three
principal
areas:
(1)
jurisdiction;
(2)
fundamental
fairness of Whiteside County’s site approval
procedures;
and
(3)
statutory
criteria
for
site
iccation
suitability.
Pursuant
to Section 40.1(a) of the Act,.
the
Board
is to
rely
“exclusively
on
the record
before the county
or’ the
governing
body
of the aunicipality” in reviewing the
decision
below.
Section
39
•
2 of the
Act
presently
outli,~es nine
criteria
for
site
suitability,
each
of
which must
be
satisfied :(if
appl~icable)
it
‘site.
approval
is
to
be
granted.
In
estabUshing
each
of
the
nine
criteria,
the
applicant’s
burden
of
proof
before
the
~local
authority
is
the
preponderance
of
the
evidence
standard’;
(Industrial
Salvage
v.
County
of
Marion
(August
2,
1984),
PCB’.83-
173,
59
PCB
233,
235,
236.)
On
appeal,
the
Board must
review
each
of
the
challenged
criteria
based
upon
the
manifest
weight
of
the evidence standard.
(See McLean County DisDosal.
Inc.
V..
County
of
McLean
(4th
Dist.
1991),
207
Ill.
App.
3d~352,566
N.E.2d 26; 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 v.
IPCB,
116 Ill. App. 3d 586, 451 N.E.2d
‘555
(2d
Diet.
1983),
aff’d
in
part
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 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. IPCB (3d
D~st.
1990),
198
Ill.
App.
3d
541,
555
N.E.2d
1178,
1184;
T&te
V.
IPCB
(4th
Diet.
1989),
188
Ill.
App.
3d
994,
544
N.E.2d
1176,
1195;
Waste
Manaaement
of Illinois.
Inc.
V.
IPCB
(2d
Diet,
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.
013.9-0532
Ii
Inc.
(5th Dist.
1991), 219 Il..
App. 3d 897,
579
N.E.2d
1228.)
However,
where
an
applicant
made
a
prima
facie
showing
as
to
each
criterion
and
no
contradicting
or
impeaching
evidence
was
offered
to
rebut
that
showing,
a
local
government’s
finding
that
several
criteria had not been satisfied was against the manifest weight
of
the
evidence.
(Industrial Fuels & Resources/Illinois,.
Inc. v.
IPCB
(1st
Diet.
1992),
227 Ill.App.
3d 533,
592 N.E.2d 148.)
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
Hau1ing~Inc.
v.
IPCB
(2d Diet.
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 decisionmaker
are not
entitled to a fair hearing by constitutional guarantees of due
process,
procedures
at
the
local
level
suet
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
W.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 Manaaement of Illinois Inc.
v.
IPCB
(2d Diet. 1989),
175
III.
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
Darte contacts, prejudgment of
adjudicative facts, and the
introduction of evidence
are
important, but not rigid, elements in assessing fundamental
fairness.
(Eediaer
V.
B
&
L Landfill.
Inc.
(December
20,
1990),
PCB 90—163..)
The Board
on. December 3, 1992 granted WMII’s motion to
strike portions of CARL’s brief addressing the issue of
fundamental fairness.
While
the issue of fundamental fairness is
not properly addressed in any of
the briefs before the Board, the
Board will review the record, in particular the testimony
presented at the December 18,
1992 hearing, on
the
issue of
fundamental fairness.
The testimony presented at the
December
bearing raises
several issues relating to fundamental fairness.
Of concern to
the Board are cx
Darte
contacts, the claims of bias
and
conflict
of
interest
against
Mr.
Barrett,
the
manner
in
which
the
hearing
was
conducted
and
the
availability
of
the
transcripts.
Ex Darte contacts
Ron
Marlier,
a
member
of
the
~‘Jhiteside
County
Board,
testified that he meet with Mr. Mehal, solid waste manager of
Whiteside
County,
and
Mr.
Barrett
in
an
informational
meeting,
0139-0533
12
prior
to
the
September
15,
1992
board
decision.
(Tr.
at
55.)
He
testified that the information covered in the meeting was the
same information presented at the public bearing.
(Tr. at 57.)
Mr. Marlier stated that nothing was said at the meeting that
suggested
how
he
should
vote
on
the application.
(Tr. at 56.)
A court will not reverse an agency’s decision because of ~
parte
contacts with members
of
that
agency
absent
a
showing
of
prejudice.
(Fairview,
198 Ill. App. 3d 541, 555 N.E.2d 1172,
citing, Waste Manaaement of Illinois v. IPCB
.
(1988), 175 111.
App. 3d 1023, 530 N.E. 2d 682.)
The testimony does not show. that
any prejudice resulted from
the meeting..
Mr. Marlier
testified
that
the information at the meeting was similar to that
provided
at
the
hearing
and
there
was
no
attempt
to influence his vote.
The
record
does
not
contain evidence of prejudice resulting from
ex parte contacts.
Conflict of Interest
Mr.
Don
Houseman,
president
of
CARL,
testified
that
he’:bad
spoken
with
a
member
of
the
Public
Works
Committee
prior.’, to
~the
July
30
and
31
public
hearing
requesting
that
Mr.
Barrett’
step
down as
hearing
officer
due
to
his
conflict
of
interest.
(Tr..’ at
60.)
Mr. Iouseman
testified that Mr. Barrett, .at.the start of
the
July
30
hearing,
noted
that
he was continuing as hearing
officer despite
objections
from
the
CARL
group.
(Tr.
at
61.)
Mr.
Ken Meinsina noted that he raised the issue of whether Mr. Barrett
should
be
permitted
to
continue
as
hearing
officer
at
the July 31
bearing.
(Tr.
at
70.)
Mr.
Barrett,
Whiteside
County
Special
Assistant
States’s
Attorney,
was appointed the hearing officer for the July hearings
held
by
the
Public
Works Committee.
(C 2.)
He also provided
representation
to
Whiteside County in the appeal of this matter
to this Board.
As attorney for Whiteside County, Mr. Barrett was
involved
in
various
portions of the siting approval process which
included
contact
with
members
of
WMII.
Mr.
Barrett
was
also
involved in preparing a question and answer summary
(CARL
Ex.
4)
for an
Aucust
28th,
1992
press
conference.
(Tr.
at
20.)
Mr.
Barrett also attended the press conference.
(Tr. at.21.)
The
purpose’ of
the
press
conference
was :to
convey
the
facts
that
led
up to the process which included the .landfill siting area.
(Tr.
at 22.)
On August 31,
1992,’ Mr. Barrett, Mr. DeNers and
Whiteside County officials conducted a
public
meeting in
Rock
Falls.
(Tr. at 81.)
This limited evidence does not rise to a showing of conflict
of interest to support a finding that the proceedings before the
county board were fundamentally unfair.
01 39-053t~
13
Bias
Mr. Meiflsma,
a member of CARL, claims that Mr. Barrett was
biased due to his involvement with Waste Management for a long
period of time prior to the hearing.
(Tr. at 98.)
Testimony from
various
citizens
suggests
that
Mr. Barrett expressed views in
favor of the
landfill
at
a
public
meeting
held
on
August
31,
1992.
(Tr. at 88,
103,
112.)
Mr. Meinsma testified that Mr.
Barrett
lambasted
signs
about
sludge,
insisting
that
no
sludge
would be brought into the landfill.
(Tr.
at 82.)
He further
testified that Mr. Barrett stated that signs reading “Cash or
Trash”
should
read “Cash or Tax” and commented on the financial
figures.
(Tr.
at
82.)
Mrs.
Dorothy
Houseman,
a,
member
of
CARL,
testified
that
she
believed
that
the
bearings
on
July
30
and
31
were
conducted
in
an
unfair way.
(Tr.
at
122.)
She
testified
that
the
hearing
officer
was
very
hostile.
(Tr.
at
122.)
She
further
testified
that
a
lunch break was not provided until 2:30 pm and that the hearing
lasted past 6 pm.
(Tr. at 122.)
She also testified that CARL was
not allowed to present witnesses until after 3:30 pm on the
second day of hearing.
(Tr. at 122.)
She
further
notes
that Mr.
Barrett bad expressed. his intent to finish the hearing that day.
(Tr.
at
122.)
She
stated
that
the
second
day
of
hearing
lasted
until nearly 8 pm.
(Tr. at 122.)
Mrs
•
Houseman noted that
several
witnesses had to leave before testif~yingdue to other
obligations.
(Tr.
at
123.)
A decisionmaker may be disqualified for bias or prejudice if
a “disinterested observer might conclude that he had in some
measure adjudged the
facts
as well as the law of the case in
advance of hearing it.”
(E & E Hauling (2d Dist.
1983)
451 N.E.2d
at 565—66, aff’d,
482. N.E.2d 668
(1985), citing Cinderella Career
and
Finishing
Schools.
Inc.
v.
F.T.C.
(D.C.
Cir.
1970),
425
F.2d
583,
591.)
The Board notes that Mr. Barrett did not vote on the
landfill siting and therefore is not a decisionmaker.
However,
the Board holds that the same standard of determining bias can be
applied
to
the
hearing
officer.
After a review of the transcript of the hearing before the
county,
the
Board
finds
that
the
record
does
not show that Mr.
Barrett was biased.
The
testimony does not suggest that Mr.
Barrett expressed any of
his
opinions
on
the
landfill
during
the
July bearings.
The record does not indicate that Mr. Barrett’s
personal Views on the landfill governed how the July hearing was
conducted.
The Board
does
not find that
CARL
was prejudiced by
Mr. Barrett’s personal opinions on the landfill.
The Board
recognizes that the hearing was moved to a larger
facility to accommodate the public, delaying the hearing by over
an hour.
(C 20.)
The Board also notes that problems were
encountered with the sound system throughout the hearing.
The
01390535
14
hearing off
icer.granted
a
motion
by
WMII
to
limit
the
questioning
of
witnesses
to
the
criteria
that
the
witness
addressed.
(C
66.)
The
hearing
officer
prohibited
questions not directed to the
witness’s testimony.
While this procedure created frustration
among
the
audience,
it
is
an
acceptable
manner
in which to
conduct
a
hearing.
The
Board
finds
that
sufficient
time
was
provided to CARL to present witnesses.
The Board does not find
that
the
manner
in which the hearing was conducted prejudiced
CARL.
Availability of Transcript
Mr. Meinsma testified to the difficulty he
encountered
in
obtaining a copy of the transcript of the July 30 and 31 hearings
from the public works committee.
(Tr. at 80.)
Be further noted
that the CARL group was unable to obtain a copy of the transcript
from the July hearings until August 27,
1992.
(Tr. at 81.)
The
County Clerk did not receive the complete transcript until August
25.
(Tr.
at 78.)
Mr. Houseman testified that the CARL group
attempted to
serve
a request to extend
the
30 day comment period
on a county board member, but he refused to accept the letter.
(Tr. at 65.)
The Whiteside County Board denied Mr. Houseman’s
written
comment
requesting
an
extension
of the 30 day comment
period.in
its
September
15,
1992
decision.
(C
922.)
The
testimony
does
not
show
how
CARL
was
‘prejudiced
by
not
having a copy of the transcript before August 27, 1992.
Members
of
the
CARL group attended
the
hearings.
Members
of
CARL
filed
post—hearing comments.
The
information presented at the hearing
was included in WMII
‘s
application filed with, Whiteside County.
CARL
does
not
argue
that
the
unavailability of ‘the transcript
prohibited
the
filing of comments or
altered
the
content
of
the
comments filed.
CARL does not allude to any requirement for the
county to make
the
transcript
available
to
the,public
and
the
Board is unaware of any such requirement.
The Board’s review of the record leads it to conclude that
the procedures followed by Whiteside County were fundamentally
fair.
CHALLENGED
CRITERIA
In
its
petition,
CARL
challenges
eight
of
the
nine
criteria
which Whiteside County found were met by the application.
CARL
does not challenge Whiteside County’s finding on criterion 9.
Whiteside County determined that criterion 9 concerning recharge
areas
was
not
applicable.
In
its
brief
CARL
does
not
present
any
argument or contradictory evidence
for
criteria
4,
5
and
8,
deferring to the Board’s determination on whether WMII has meet
it burden of proof with respect to these criteria.
In its reply
brief, CARL contends that WMII failed to provide sufficient
evidence
on
criteria
1,
2,
3
and
6.
CARL further respectfully
0139-0536
15
withdraws their prior contentions concerning criterion 7.
WHIX argues
that absent a showing by the petitioner that the
manifest
weight of the evidence directed a different result, the
decision of Whiteside County must be affirmed.
(See Fairview, 198
Ill. App. 3d 541,
555 N.E.2d 1178.)
Therefore,
WHII
contends
that
CARL has not presented
argument
or evidence on criteria 4, 5
and 8,
arid therefore Whiteside County’s decision with respect to
criteria
4,
5
and
8
must be affirmed.
As
previously
noted,
this
Board
must review Whiteside
County’s decisions on the challenged criteria on a manifest
weight of the evidence standard.
The Board will review the
evidence presented concerning criteria 4,
5 and 8 to’ determine if
the manifest weight of the evidence supports the findings of
Whiteside County.
The Board will also review the argument
presented by CARL in its brief of January 7,
1993 concerning
criteria 7.
CARL repeatedly asserts that Whiteside County’s decision was
based on
the financial needs of the county and not on the
statutory criteria as required.
CARL alleges that the county’s
purpose in siting the landfill was to raise revenues to remediate
problems
associated
with
the
county’s
existing
landfill.
There
is no impropriety in
considering
any
economic
benefit,
as long as the statutory criteria are also met.
(Fairview,
198
Ill. App.
3d 541,
555 N
•
E. 2d 1178.)
The
Board is not to
speculate on
the
political
or
social
or
economic consequences of
approving the location of a regional pollutiOn control facility;
rather it is the Board’s duty to determine whether the decision
below was against the manifest weight of the evidence.’
(~)
While the evidence shows that the economic factors relating to
the siting of the proposed facility and the closing of the
existing landfill were in front of Whiteside County, there
is no
evidence that shows that this was the only factor considered or
that Whiteside County
did not review the evidence concerning the
statutory criteria.
In
reviewing
Whiteside County’s decision,
the Board will look at the evidence that Whiteside County relied
on in reaching its determination and the arguments ~presented by
the
parties
in
their
briefs.
Need
The first criterion which the local decisionmaker must
consider in ruling upon an application for local site approval is
whether “the facility is necessary to accommodate the wast~needs
of
the
area
it
is
intended
to
serve.”
(415
ILCS
5/39.2(a)
(1)
(1992).)
Richard Carison, of Carlson Environmental Inc., prepared a
report for
WHII
on the need for the facility.
(C 957 to C 981.)
UI 39-0537
16
The report states that at the end of 1992 there will be no
existing landfill capacity within Whiteside County.
(C 978.)
The
report concludes that landfill capacity within the service area
will be depleted by 1994.
(C 978.)
The report projects that
regional landfill capacity in northern Illinois will be depleted
around the year 2000.
(C 980.)
The report asserts that the
proposed landfill is necessary to accommodate the waste needs of
the service area.
(C 980.)
Whiteside County found that no testimony or evidence was
presented at the hearing which controverted or refuted Mr.
Carison’s findings or conclusions.
(C 922.)
Whiteside County
after reviewing the record as a whole determined that WMII met
its burden of proof concerning criterion 1.
(C 922.)
CARL contends that a “super—regional landfill” is neither
necessary or urgent.
CARL maintains that need should not be
determined by an arbitrary standard of life expectancy of
existing disposal capacities but rather by considering other
relevant factors such as development of ‘other sites and changes.
in projected amounts of refuse.
(Waste Manaaement Inc.
v. IPCB
(2d Dist.
1988), 175 Ill. App. 3d 1023,’ 530 N.E.2d 682.)
Based
on this premise, CARL contends that evidence was not presented on
other sites or changes in refuse.
CARL
argu~s
that a transfer
station will meet the needs
of Whiteside Coilnty.
CARL
notes that
a
resolution
by
the
Whiteside
County
Farm
Bureau
stated
that
a
transfer station would meet
the
needs of Whiteside County and
requested Whiteside County to explore this option.
(C 761.)
CARL
argues
that
the county is still faced with a substantial time
frame in which to make its decision and therefore
it
does
not
appear.to rise to the level of urgency.
WMII argues that Whiteside County cannot use a service area
smaller than that described in the application to determine need.
It is the applicant who defines the intended service area,
not
the local decision making body; Whiteside County has no authority
to amend the service area.
(Metropolitan Waste System Inc.
v.
IPCB
(3d Dist.
1990), 201 Ill. App. 3d 51, 558 N.E.2d 785.)
WMII
contends that
CARL’s
argument
considers
the
service,area
as
Whiteside County only and should therefore be rejected.
The service area specified by WMII in its application
includes Whiteside County, Winnebago,
Boone County, southern Lake
County, eastern Du Page County and
parts
of suburban Cook County.
(C
960.)
In
its
argument
CARL
focuses
on
the
waste
needs
of
Whiteside
County
only
and
did
not consider the need of the other
areas in the service area.
Whether a transfer station is
adequate to meet
the
needs
of
Whiteside County does not address
whether the
application
by
WNII
and
the
evidence
presented
at
hearing show that the landfill is necessary to accommodate the
needs of the area to be served.
In ~airview, the court held that
this criteria does not require a showing of absolute necessity
0139-0538
17
nor should need be determined by application of an arbitrary
standard of life
expectancy of existing
disposal capacities.
(198
Ill.
App..
3d
541,
555
N.E.2d
1178.)
The
court held that
petitioners had the opportunity to present evidence negating
need,
and
absent
contradicting
calculations
it
is
appropriate
for
the local decisionmaker
to rely on the information in
evidence.
CARL did not present calculations
of
their
own
or
challenge
the calculations presented by Mr.
Carlson.
The Board finds that
it was appropriate for Whiteside County to rely on the
infOrmation in evidence.
The Board finds that Whiteside County’s
decision that WMII’s application met criterion
1 is not against
the manifest weight of the evidence.
Public Health. Safety.
and Welfare
The second criterion which the local decisionmaker must
consider when ruling upon an application for local site approval
is whether “the facility is so designed, located, and proposed to
be operated that the public health, safety, and welfare will be
protected.”
(415 ILCS 5/39.2(a)(2)
(1992).)
WMII’s application contains written reports describing and
analyzing the location, design and operation of the proposed
facility.
(C 983 to C 1171.)
WMII presented three witness
concerning criterion
2.
Martin Sara, a hydrogeologist, testified
‘concerning the suitability of the site.
Paul John Wintheiser,
a
civil engineer, testified concerning the design of the facility.
James Nold, business development manager for WMII, testified on
the operation of the proposed facility.
Mr. Gerald DeMers, the
consultant hired by Whiteside County, also testified on criterion
2.
Mr.
Sara
testified
that,
due
to
the
consistent
‘geology
and
the
simple
groundwater
flow
patterns
of
the
site,
a
very
effective groundwater monitoring system can be designed.
(C
411.)
He also testified that
the site contains sufficient
materials to
design
and
construct a
liner,
leachate
collection
system,
daily
cover
and
final
cover for the facility.
(C 413.)
Mr.
Wintheiser
described
the
following
features
of
the
landfill:
composite
liner
system
(C
512),
final
cover
(C
513),
leachate collection and management system
(C 514), gas monitoring
and
management
system
(C
516), surface water management system
(C
518)
and
the
groundwater
monitoring
system
(C
524).
He
further
testified
how
each
of
these
features serve to protect
the public,
health, safety and welfare.
(C 526 to C 528.)
Mr. Nold testified as to the policies and procedures
followed in the operation of
WMII’s
landfills.
He testified that
the facility will have controlled access by a security gate and
a
locked gate.
(C 641.)
He described the procedure for monitoring
0139-0539
18
and
recording
all
incoming
vehicles
and
the waste delivered.
(C
646.)
He
further
explained
the
sorting, compacting and
daily
cover
procedures.
(C
650.)
He
also
explained
the
steps
taken
to
control
litter
(C
651)
and
dust
(C
652).
Mr.
DeMers
testified
that
the
design
exceeds
all
applicable
State of Illinois requirements.
(C 699.)
He testified that the
design,
location and proposed operation will protect the public
health, safety and welfare.
(C 700.)
Whiteside County found that the proposed facility will be
designed,
located and operated so that
the
public
health,
safety~
and welfare will be protected, provided that the conditi,ns set
forth in Whiteside County’s decision are followed.
(C 926.)
CARL contends that WMII failed to establish that the
increased size of the l~ndf
ill is necessary.
In addition, CARL
contends that WMII did not show that any concurrent increase in
the groundwater contamination is necessary.
CARL argues that the
size’ of the proposed facility exceeds the needs of the cQunty and
therefore is not designed to minimize the threat to public
health, safety and welfare.
CARL maintains that a site that’ is
proposed with a design that far exceeds the reasonable needs of a
county or a contiguous geographical area runs contrary to
criteria
2 and threatens the public health, safety and welfare.
CARL further alleges that citizens vehemently expressed their
concerns of health risks associated with having a regional
landfill in the area.
CARL notes
that Joanne Vock tried without
success to obtain information pertaining to health risks
associated with exposure to varIous chemicals and waste coming
into the proposed facility.
(C 439.)
CARL also points out that
Jane Vanzuiden commented on the communities concern about health
and safety.
(C 771.)
WMII maintains that the evidence shows that the proposed
facility is designed so public health, safety and welfare will be
protected.
WHII notes
that
CARL does not argue that the controls
and procedures, safety features, training of personnel or
security systems are substandard or create a significant safety
hazard.
(Industrial
Fuels,
227 Ill. App. 3d 533, 592 N.E.2d
148.)
WNII
contends
that CARL has mischaracterized the standard for
criteria
2.
WMII
notes
that
CARL
has
provided
no
authority
to
support its contention that WMII
must show that the landfill.and
the concurrent increase in the groundwater contamination are
necessary.
WHII
argues
that
criteria
1
relates
to
need,
but the
size
and
nature
of
the
facility
is
related
to
the
service
area
and
not
to
groundwater
contamination.
WMII
maintains that there
was
no
testimony
to
indicate
that
the
facility
would
result
in
groundwater contamination.
The Board finds that CARL’s argument relating to the
necessity of a landfill of the proposed size are misplaced and
0139-05140
19
relate to criterion 1.
The Board finds no authority to support
CARL’s contention that WNII must establish that a concurrent
increase
in
groundwater
contamination
is
necessary.
The
Board
does not find evidence in the record to support CARL’s contention
that the design of the proposed facility will result in an
increase
of
groundwater
contamination.
While
citizens
did
express
their
concerns
about
health
and
safety,
the
comments were
directed
at
landfills
in
general.
The
comments
did
not
reflect
any specifics
relating to this facility
or
defects
in
the
application presented by WMII.
Given the
extent
of
the
comments
by
the
citizens, the Board finds it
reasonable
for
Whiteside
County
to
rely
on
the
expert
testimony
presented
by
WNII
and
the
county’s consultant.
WMII
has provided evidence of design and operating
procedures
to
protect
the
public
health,
safety
and
welfare.
Assuming,
as
is
the
case
here, that the applicant presents a
prima’
facie
case
that
the application meets criterion 2, the
Board
believes
that
a
local
decisionmaker
is
free
to
place
sor~e
reliance on the Illinois Environmental Protection Agency’s permit
review process.
The appellate court has
held that a local
decisionmaker is empowered to consider any and all highly
technical details of landfill design and construction in ruling
upon criterion two.
(Waste Management of Illinois.
Inc.
v.
IPCB
(2d Dist.
1987),
160
Ill. App. 3d 434,
513
N.E.2d
592,
594—596;
see
also
NcHenry
County
Landfill.
Inc..
v. ~1inois Environmental
Protection
Agency
(2d
Dist.
1987),
154
Ill.
App.
3d
89,
506
N.E.2d 372,
380—381;
County
of
Lake
v.
IPCB
(2d
Dist.
1983),
120
Ill.
App.
3d
89,
457
N.E.2d
1309.)
We
do
not
believe,
however,
that
these
cases
mean
that
local
decisionmakers
must
examine
each
request for siting approval
so
as
to
ensure
compliance
with
every
applicable regulation.
(Cf. Tate,
188 Ill. App.~ 3d 994,
544
N.E.2d 1176,
1195.)
Building a new regional pollution control
facility in Illinois is a two—step process:
siting approval from
the local decisionmaker, and an approved permit from the Illinois
Environmental Protection Agency.
(415 ILCS 5/39 and 39.2
(1992).)
The local decisionmaker is not required to perform both
functions.
In sum, the Board finds that Whiteside County’s
decision that criterion 2 was satisfied is not against the
manifest weight of the evidence.
Minimize Inco!nDatibility
The third
criterion that
the
local
decisiorunaker
must
consider is if “the facility
is
located
so
as
to
minimize
incompatibility with the character of the surrounding area and to
minimize the effect on the value of the surrounding property.”
(415
ILCS
5/39.2(a)(3)
(1992).)
WMII presented two witnesses on criterion 3:
J. Christopher
Lannert, a professional landscape architect and urban planner,
0I39-05~1
20
and William McCann, a professional real estate appraiser and land
use
zoning
consultant.
Mr.
Lannert
testified
that
the
facility
is
to
be
located
in
a
low-density,
agricultural
area.
(C
47
to
C
48.)
He
further
testified
that
the
entry
design
of
the
facility
(C
61),
the
end-
use plan
(C 53
to
C
59),
the screening features and berms
(C
60
and C 62) minimize the incompatibility with the character of the
surrounding area.
Mr. McCann testified that,
due to the fact that the proposed
site adjoins an existing landfill,
is located along a major
thoroughfare and is removed generally frOm residential
development, it minimizes both incompatibility and property value
impact.
(C 196.)
Mr. McCann
further
testified that, based on
studies around other landfills,
the
proposed facility has been
located so as to minimize any potential effect on the value of
surrounding properties.
(C 202.)
He found that these studies
have shown that those landfills have not deterred development in
the area.
(C 199.)
He also studied prior land transactions in
the area and found no effect due to the existing landfill.
(C
202.)
Whiteside County
found
that
the
proposed
facility
is
so
located as to minimize incompatibility based on the testimony
presented by Mr.
Lannert
and
Mr. McCann and the lack of credible
or
relevant
evidence
to
the
contrary.
(C 927.)
CARL
argues that Mr. McCann failed to consider the inherent
impact”that the landfill would have on
the
potential
development
of
areas
surrounding
the
landfill
not
serviced
by
city
sewer
and
water services.
CARL notes
the
regulations regarding the
placement of wells in close proximity to landfills.
CARL
contends that Mr. McCann only considered the impact on areas
serviced by city sewers and water.
Further CARL asserts that
while studies compared the effect of the existing lañdfill on the
area to that of the proposed facility,
it did not consider the
greater size of the new facility.
CARL argues that there was no
consideration of the effect that increased traffic in the area
would have on
the
compatibility of the site.
CARL
argues that
the fact that the existing county landfill may have suppressed
development in the area is an insufficient basis to conclude that
a new and larger facility will not have a substantial impact.
CARL
maintains that the testimony indicated that local
residents would not buy homes near the proposed facility.
(C
816.)
CARL
argues that market value depends on buyers desiring
to live in the area.
CARL asserts that current and future
homeowners can provide the best evidence on the impact of the
proposed site.
CARL
further argues that challenging testimony on
the basis that it
is not given by an expert, does not alone
discredit
otherwise
persuasive,’testimony.
(Ralston
Purina
Co.
v.
0139-05142
21
~pçB
(4th
Dist.
1975),
27
Ill.
App.
3d
53,
325
N.E.2d
727.)
WNI’I argues
that criterion
3 does not require that the
proposed
facility
have
no
impact
on
the
surrounding
area
or
on
the
value
of
surrounding
property.
MMII
argues
that CARL
relies
on opinion and speculation of what may occur in the future.
MMII
further
contends that the testimony that CARL relies on is
hearsay.
MMII
contends
that
the
evidence
establishes
that
WMII’s
plan not only would minimize any incompatibility of the landfill
or
effect
on
the
value
of
the
surrounding
property,
but
would
result in a scenic and geographically appropriate landform.
The Board finds that based on the testimony presented there
is ample evidence in the record to support Whiteside County’s
finding on criterion 3.
The Board finds the county’s decision on
criterion 3
is not against the manifest weight of the evidence.
Flood
Plain
The fourth criterion which the local decisionmaker must
consider
in
ruling
upon
an
application
for
local
site
approval
is
whether
“the
facility
is
located
outside
the boundary
of
the
100
year
flood
plain
or
the
site
is
flood—proofed.”
(415
ILCS
5/39.2(a) (4)
(1992).)’
Mr. Sara and Mr. DeMers testified that the facility is
located outside the
boundary
of the 100—year flood
plain.
(C
412,
C
698.)
Whites ide
County
found
no
contradicting
evidence
and
determined that criterion 4 was satisfied.
(C 928.)
CARL
presents
no
argument
to
contradict
the
finding
of
Whiteside County.
Therefore, the Board finds that Whiteside
County’s
determination
that
criterion
4
was
satisfied
is not
against the manifest weight of the evidence.
Plan of ODerations
The fifth criterion which the local decisionmaker must
consider
in
ruling
upon
an
application
for
local
site
approval
is
whether
“the
plan
of
operations
for
the
facility
is
designed
to
minimize
the
danger
to
the
surrounding
area
from
fire,
spills,
or
other
operational
accidents.”
(43.5
ILCS
5/39.2(a)
(5)
(1992).)
Written reports regarding operational plans, policies and
procedures
for
the
facility
are
included
in
the
application.
(C
1230 to C 1281.)
Mr. Mold and Mr.
Dellers also testified
concerning the operation of the facility to minimize danger from
fire, spills or other operational accidents.
Based
on
the
evidence
presented,
and
the
lack
of
credible
or
relevant evidence to the contrary, Whiteside County found that
MMII’S
plan
of
operation
is
designed
to
minimize
the
danger
to
0139-05143
22
the surrounding area from fires,
spills, or operational
accidents.
(C 928.)
CARL has not
presented
any arguments on this criterion or
shown
that
any
contradicting
evidence
was presented concerning
this criterion.
Therefore the Board finds that Whiteside
County’s decision that MMII’S plan of operation met criterion 5
is
not against the manifest weight of the evidence.
Traffic
Pattern
The sixth criterion which the local decisionmaker must
consider in ruling upon an appiication for local site approval-is
whether
“the
traffic
patterns
to or from the ‘facility are so
designed
as to minimize the impact on existing traffic flows.”
(415 ILCS 5/39.2(a)(6)
(1992).)
David
Miller,
a
professional
traffic
engineer,
testified
for
MMII
concerning criterion 6.
A report by Mr. Miller was
included
in.the
application.
(C
1283
to
C
1300.)
Mr.
Miller
testified
that
the traffic to and from
the facility has been so designed to
minimize the impact on existing traffic flow.
(C 268.)
He based
his opinion on:
1) the
site volumes are very low,
2) the peak
hours
of
the
facility
and US 30 do not corre~pond, 3) US 30 is
more than’ adequate to
accommodate
the
traffie,
4) the access to
the site is good and 5) the design of the fac~ilityis adequate to
handle
parking
and
internal
circulation.
(Tr.’ at 267.)
-Mbiteside
County
found
that
based
on
the
evidence
presented
by
Mr.
Miller
and
the
written
comment
submitted
on
August
26,
1992, by the Whiteside County Engineer that criterion 6 had been
met.
CARL
argues that peak traffic ‘periods during construction
were not
considered
by
Mr.
Miller.
CARL
contends
that
the
data
used in Mr. Miller’s report was not obtained from the Illinois
~epartment of Transportation.
(C 274.)
CARL
asserts that
citizens
provided
information that contradicted Mr. Miller’s
findings.
One citizen stated that he had to wait for 15 vehicles
to pass before he could cross US 30.
(C 272.)
Another citizen
stated that Highway 30 is already carrying more traffic than it
was designed to handle.
(C 283.)
MMII argues that CARL
relies
on
the subjective perception of
two citizens that Highway 30 is currently operating at excessive
capacity.
MMII notes that, while CARL contends that the data
used was not from
the
Illinois
Department
of
Transportation,
it
did not present such data or any other study to discredit Mr.
Miller’s testimony.
MMII maintains that the finding that the
applicant has satisfied criterion
6 should be upheld because
CARL
has presented no evidence to indicate that the proposed traffic
pattern does not already minimize the impact on the existing
0139-051414
23
traffic flow.
(See Waste Haulinc~Inc.
v. Macon County Board
(May
7,
1992),
PC~ 91—233.)
After reviewing the evidence, the Board finds that
Whiteside County’s finding that
MMII
satisfied criterion 6
is not
against the manifest weight of
the
evidence.
Hazardous
Waste/Emeraencv
ResDonse
Plan
The
seventh
criterion
which
the
local
decisionmaker
must
consider
in
ruling
upon
an
application for local site approval is
“if the facility will be treating, storing or disposing of
hazardous
waste, an emergency response plan exists for the
facility which includes notification, containment and evacuation
procedures to be used in case of an accidental release.”
(415
ILCS
5/39.2(a)(7)
(1992).)
WMII’s
application
states
that
hazardous
waste will not be
treated at the proposed facility.
(C 1303.)
Therefore, Whiteside
County
found
that
criterion
7
does
not
apply
and
MMII need
not
show
compliance.
(C
929.)
Whiteside
County
also
noted
that
if
the
“Conditions
for
Approval”
are
followed,
no
hazardous
waste
will
be
treated,
stored
or
disposed
at
the
facility.
(C
929.)
CARL
contends that the testimony indicates that “household
hazardous waste” will be accepted at the landfill.
(C 674.)
CARL
argues
that
because
the
landfill
will be handling “hazardous
waste”, an emergency response plan must be proposed.
CARL
maintains
that
no
such
plan
has
been
presented
by
MMII
and
therefore this criterion has not been fulfilled.
MMII
notes
that
the term “household hazardous waste” is not
defined in the Illinois Administrative Code.
MMII
argues
that
“household
waste”
is
excluded
from
hazardous
waste
by
35
Ill.
Adm.
Code
721.104(b)
and
defined
to include “any waste or
material
(including
garbage,
trash,
and
sanitary
wastes
in
septic
tanks) derived from households (including single and multiple
residences,
hotels
and
motels,
bunkhouses,
ranger stations, crew
quarters, campgrounds and day—use recreation areas)
.“
WMII
cOncludes that household waste of any description does not
constitute hazardous waste.
Therefore, MMII maintains that an
emergency response plan is not required, because the proposed
facility will not be treating, storing or disposing hazardous
waste.
The
term “hazardous household
waste”
was
used
in
a
question
asked
on
Cross—examination
by
a
resident.
The application states
that
no
hazardous
waste
will
be
treated,
stored
or disposed of at
the facility.
The
decision
by
Whiteside County provides that
hazardous waste
will
not
be
accepted
at
the
proposed
facility.
The Board
finds that the manifest weight of the evidence supports
the finding that hazardous waste will not be treated,
stored or
0l 39-05145
24
disposed -at the proposed facility and that an emergency response
plan
is not
required.
Solid Waste Management Plan
The
eighth
criterion
which
the local decisiorunaker must
consider
in
ruling
upon
an
application
for
local
site
approval
is
“if the facility is to be
located
in
a
county
where
Whiteside
County
has
adopted
a
solid
waste
management
plan,
the
facility
is
consistent
with
that
plan.”
(415
ILCS
5/39.2
(a)
(8)
(1992).)
Mr.
Lannert
and
Mr
•
DeMers
testified
concerning
criterion
8.
Mr.
Lannert found the proposed ‘facility to be consistent
with
the
county’s waste plan.
(C 64.)
He stated that the plan calls for a
new
landfill
and
recycling
efforts,
which
are
satisfied
by
the
proposed facility.
(C 64.)
He further testified
that
the
plan
calls
for
professional
management
of
the
operation,
which
would
be
provided
by
MMII.
(C
65.)
Mr.
DeMers
also
testified
that
the
proposed facility was consistent with the county’s plan.
(C 139.)
Whiteside County noted that no contradicting testimony or
evidence
was
presented
on
this criterion.
Whiteside County found
that
the
application
is
consistent
with
the
Whiteside
County
Solid Waste Plan and that
MMII had met
its
burden
with
respect
to
criterion
8.
CARL presented no argument to the Board on this criterion.
CARL
has
not
shown
that
the
record
contains any contradicting
evidence.
CARL does not argue that the evidence does not support
the county’s finding.
MMII presented testimony that the proposed
site-was consistent with the Whiteside County Solid Waste Plan.
The
-Board
finds
that
Whiteside
County’s
finding
concerning
criterion 8 is not against
the
manifest
weight
of
the
evidence.
CONCLUSION
The Board finds that
the
proceedings
of
Whites ide
County
were fundamentally fair.
Additionally, the Board finds that
Whiteside
County’s’
decision that MMII’s application met all of
the statutory criteria is not against the manifest weight of the
evidence.
Therefore, Whiteside County’s decision granting siting
approval is affirmed.
This
opinion constitutes the
Board’s
findings
of
fact
and
conclusions
of
law
in
this
matter.
ORDER
The
Board
hereby affirms the Whiteside County Board’s
September 15, 1992
decision granting site
approval
to
Waste
Management of
Illinois,
Inc.
for a
regional pollution control
facility.
0139-05146
25
IT
IS
SO
ORDERED.
3.
Theodore
Meyer
abstained
Section
41
of
the
Environmental
Protection
Act,
(415
ILCS
5/41
(1992))
provides for appeal of final orders of the Board
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 Castenada v. Illinois
Human Rights Commission
(1989),
132 Ill. 2d 304,
547 N.E.2d
437.)
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
opinio
and
order
was
adopted
on
the
~
day
of______________________
1993,
by
a
vote
of
5-c)
.
~
~
Dorothy
M./~unn, Clerk
Illinois P~9~.lution
Control Board
0
39-05147

Back to top