ILLINOIS POLLUTION CONTROL BOARD
December 6, 1989
METROPOLITAN WASTE
SYSTEMS, INC., SPICER, INC.,
and SPICER PROPERTIES, INC.,
)
Petitioners,
V.
)
PCB 89—121
(Landfill Siting
CITY OF MARSEILLES,
)
Review)
Respondent.
PAUL E. ROOT (GOMIEN, ROOT and RIGAZIO) and RUSSELL J. HOOVER
(JENNER and BLOCK) APPEARED ON BEHALF OF APPLICANTS;
MiCHAEL F.
KUKLA
(COWLIN, UNGVARSKY,
KUKLA
and CURRAN) APPEARED ON
BEHALF OF AREA RESIDENTS FOR ENVIRONMENTAL SAFETY;
S. MICHAEL MASON APPEARED ON BEHALF OF THE VILLAGE OF SENECA;
GEORGE MUELLER (HOFFMAN, MUELLER, CREEDON and TWOHEY) APPEARED ON
BEHALF OF SENECA COM~TUNITY CONSOLIDATED GRADE SCHOOL DISTRICT
NO.
170;
GERARD E. DEMPSEY (KLEIN, THORPE, JENKINS LTD.) APPEARED ON BEHALF
OF SENECA COMMUNITY HIGH SCHOOL DISTRICT NO. 160;
MATTHEW J. DUNN, ASST. ATTORNEY GENERAL, APPEARED ON BEHALF OF THE
PEOPLE OF THE STATE OF ILLINOIS;
ROBERT N. ESCHBACH, ASST. STATES ATTORNEY FOR LASALLE COUNTY,
APPEARED ON BEHALF OF THE PROPLE OF THE STATE OF ILLINOIS.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter cones before the Board upon an appeal filed by
Metropolitan Waste Systems, Inc., Spicer, Inc. and Spicer
Properties, Inc. (“Applicants”) on July 27, 1989 pursuant to
Section 41.1(b) of the Illinois Environmental Protection Act
(“Act”). (Ill. Rev. Stat. 1987, ch. 111½, par. 1041.1(b).)
Applicants appeal the July 26, 1989 decision of the City Council
of the City of Marseilles (“City”) denying siting location
suitability approval for a new regional pollution control facility.
On appeal, Applicants assert that the Hearing Officer erred
in denying their “Request to Admit” and that the City’s decision
mE-F)
2
that Applicants did not meet their burden of proof on criteria 1
and 2 of Section 39.2 of the Act is against the manifest weight of
the evidence.
BACKGROUND
In January 1988, Applicants filed a request with the City for
site location approval for a new regional pollution control
facility. Following a lengthy evidentiary hearing but prior to the
City reaching a final decision, Applicants withdrew their request.
On January 17, 1989, Applicants filed a new rec~uest for site
approval at the same location as the 1988 request. 14 days of
hearings resulted in 3,075 pages of transcripts and numerous
exhibits. The Hearing Officer tendered a 123—page document setting
forth his findings of fact and recommendation that Applicants had
met their burden of proof on each of the six criteria as required
by Section 39.2 of the Act.
On July 26, 1989, the City reached its final decision. The
City adopted the Hearing Officer’s findings and recommendations
regarding criteria 3 through 9. However, the City found that
Applicant failed to meet its burden of proof regarding criteria 1
and 2. Therefore, site approval was denied.
SCOPE
OF REVIEW
Requirements for the siting of a new regional pollution
control facility are set forth in Section 39.2 of the Act. (Ill.
Rev. Stat. 1987,
ch.
111½, par. 1039.2.) Section 39.2 of the Act
sets forth nine criteria which must be satisfied in order to obtain
site approval. Upon review, the Board must review each of the
challenged criteria. (Waste Management v. PCB, 175, Ill. App., 3d
1023, 530 N.E.2d 682, 691—92 (2nd Dist. 1988).) In the instant
cause only two criteria are challenged. Therefore, this Board must
determine whether the City’s decisions concerning criteria 1 and
2 are against the manifest weight of the evidence. (Waste
Management of Illinois, Inc. v. PCB, 122 Ill. App. 3d 639, 461
N.E.2d 542 (3d Dist. 1984).) The standard of manifest weight of
the evidence has been explained in the following manner:
A verdict is
...
against the manifest weight
of the evidence where it is palpably
erroneous, wholly unwarranted, clearly the
result of passion or prejudice, or appears to
1The record of the 1988 proceeding consisting of 4,670 pages
of transcripts and 200 exhibits has been incorporated into the
instant record. (A.D. #8 at 2.) Citations to the record of the
1988 will be denoted as B—i. Citations to the 1989 record will be
denoted as R-2.
iflE?fl
3
be arbitrary, unreasonable, and not based upon
the evidence. A verdict cannot be set aside
merely because the jury the City could have
drawn different inferences and conclusions
from conflicting testimony or because a
reviewing court IPCB would have reached a
different conclusion
. ..
when considering
whether a verdict was contrary to the manifest
weight of the evidence, a reviewing court
IPCB must view the evidence in the light
most favorable to the appellee.
Steinberg v. Petra, 139 Ill. App. 3d 503, 508
(1986)
Consequently, if after reviewing the record, this Board finds
that the City could have reasonably reached its conclusion, the
decision must be affirmed. That a different conclusion might also
be reasonable is insufficient; the opposite conclusion must be
evident. (Willowbrook Motel v. IPCB, 135 Ill. App. 3d 343, 481
N.E.2d 1032 (Dist. 1985).) Additionally, this Board must evaluate
whether the procedures used by the City in reaching its final
decision were fundamentally fair. (Ill. Rev. Stat. 1987, ch. 111½,
par. 1040.2; E & E Hauling v. PCB, 116 Ill. app. 3d 586, 451 N.E.2d
555, 527 (2d Dist. 1983).)
FUNDAMENTAL FAIRNESS
In reviewing the City’s decision, the Board is required to
take into consideration the “fundamental fairness of the procedures
used by the
***
governing body of the municipality in reaching its
decision”. (Ill. Rev. Stat. 1987, ch. 111½, par. 1040.1(a).) The
Appellate Court of Illinois has defined the parameters for
fundamental fairness considerations of a local government in ruling
on a regional pollution control facility application as follows:
Administrative proceedings are governed by the
fundamental principles and requirements of due
process of law. Citation.
Due process is
a flexible concept and requires such
procedural protections as the particular
situation demands.
Citation.
In an
administrative hearing, due process is
satisfied by procedures that are suitable for
the nature of the determination to be made and
that conform to the fundamental principles of
justice. Citations. Furthermore, not all
accepted requirements of due process in the
trial of a case are necessary at an
administrative hearing. Citation.
***
Due
process requirements are determined by
balancing the weight of the individual’s
106—21
4
interest against society’s interest in
effective and efficient governmental
operation.
(Waste Management of Illinois, Inc. v. PCB,
175 Ill. App. 3d 1023, 1036—37, 530 N.E.2d 682
(2d Dist. 1988).)
While Applicants do not directl~~challenge the fundamental
fairness of the procedures used by the City, they assert that their
“Request to Admit” was improperly denied by the Board’s Hearing
Officer and that the information sought by Applicants in the
request is necessary to this Board’s determination of fundamental
fairness. On September 13, 1989, Applicants filed a “Request to
Admit” setting forth 21 statements of fact. Statements 1 through
5 relate to Commissioner Mitchell’s “straw vote” and final vote on
criteria 1 and 2. Statements 6—21 pertain to the burden of proof
applied by the City in reaching its decision to deny site approval.
On September 27, 1989, the City filed ~ “Motion to Strike the
Request to Admit.” The Hearing Officer treated the City’s motion
to strike as an objection. (R-2 at 16—17.) The Hearing Officer
denied the “Request to Admit” on the basis that Applicants’ were
not entitled to probe the individual council member’s state of
mind. (Id.)
Applicants assert that the information sought to be attained
through statements 6-21 of its “Request to Admit” is essential to
the Board’s consideration of fundamental fairness. According to
the Applicants, “it would seem that there could be nothing more
essential to ‘fundamental fairness’ than that the City apply the
correct standard of proof in reaching its decision.’ (Pet. Brief
at 47.) Applicants support their allegation that the City applied
an incorrect standard of proof by stating that, “given the
overwhelming weight of the evidence fa’oring the Applicants on
criterion 2, there is ample reason to suggest that the City may
have held them to a stricter stanaard of proof than the law
requires.”
(~.)
The record contains ample evidence that the City was properly
instructed as to the burden of proof to apply in determining
whether Applicants satisfied each of the six statutory criteria
for site approval. In his recommendation of July 7, 19892 (A.D. #8
at 2-5), the Hearing Officer stated that the burden of proof to be
applied is the “preponderance of the evidence” standard.
(u.)
The Hearing Officer explained that this standard meant that the
applicant must establish that a fact or proposition is more
probably true than not. (Id.) The applicability of this burden of
proof was reiterated at the City Council meeting prior to the City
2This recommendation was non—substantively corrected on July
13, 1989.
lflE—22
5
rendering its final decision on the application for site approval.
(R—2 at 3097.)
Applicants’ argument that the disapproval of their application
in and of itself indicates that the City applied an erroneous
burden of proof is unpersuasive. Simply because the City reached
a decision unfavorable to Applicants does not mean that the City
applied the wrong burden of proof. Such an assertion could be made
by any party against whom an adverse decision has been rendered.
If, as applicants suggest, the overwhelming weight of the evidence
favors the Applicants on criterion 2, this matter will be dealt
with in the Board’s analysis of whether the City’s decision on
criterion 2 is against the manifest weight of the evidence.
There is nothing in the record indicating that the City
misunderstood that the burden of proof to be applied tc Applicants’
request for site approval is the “preponderance of tne evidence”
standard. The information regarding the burden of proof which
Applicants seek to attain through their “Request to Admit” is not
necessary to the Board’s inquiry into fundamental fairness. There
being no other challenge to the fairness of the procedures followed
by the City, the Board finds that the procedures utilized by the
City satisfy the requirements of fundamental fairness.
Regarding their “Request to Admit,” Applicants also argue that
the Hearing Officer erred in denying the request to admit facts
pertaining to Commissioner Mitchell’s votes on criterion 1. By
their “Request to Admit,” Applicants seek to inquire into whether
Commissioner Mitchell misunderstood the vote on criterion 1.
The record establishes that, prior to reaching a final vote
on each criterion, a “straw vote” was taken to determine if a
majority vote existed either in ±avorof approving or disapproving
the application.
(R-2 at 3095—96.) The Hearing Officer
specifically stated that the “straw vote” was not binding and that
an “aye” vote meant approval and a “nay” vote meant disapproval of
the application. ~ at 3096—97.) Commissioner Mitchell voted
“aye.”
(~.
at 3098.) The Hearing Officer then posed a “straw
vote” as to criterion 1 stating that an “aye” vote meant that the
Criterion was not satisfied. (Id. at 3103, 3104.) Commissioner
Mitchell voted “aye.”
(~.
at 3104.) When the final vote was
taken (id. at 3146), Commissioner Mitchell voted “aye,” thereby
voting to approve the document stating that Criterion 1 had not
been satisfied and that the facility is not necessary to
accommodate the needs of the intended area of service.
Admittedly, the record reveals an inconsistency between
Commissioner Mitchell’s “straw vote” and final vote. Furthermore,
his final vote appears to be inconsistent with his statement that
he felt the recommendation of the Hearing Officer should be
followed.
(~.
at 1040-41.) However, it is also clear that the
“straw vote” was not binding and that at many points during both
106 23
6
the “straw vote” and the final vote the Hearing Officer explained
the effect of an “aye” or “nay” vote. Moreover, Commissioner
Mitchell was free to change his vote until the final vote was
taken. It is well established that one cannot invade the mind of
the decision-maker. (Ash v. Iroquois County Board, PCB 87-29 at
12 (July 16, 1987).) Just as a judge cannot be subjected to such
scrutiny, so the integrity of the administrative process is equally
respected. (Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402 (1971); United States v. Morg~p, 313 U.S. 409 (1941).)
The Board finds that the Hearing Officer correctly denied
Applicants’ “Request to Admit.”
CRITERION
NO.
1
Section 39.2(a)(l) of the Act requires the City to review
Applicants’ request for site approval to ensure that the proposed
facility is necessary to accommodate the waste needs of the area
it is intended to serve. (Ill. Rev. Stat. 1987, ch. 111½, par.
l039.2(a)(1).) As earlier mentioned, the City found that the
applicant had failed to satisfy the criterion.
Six members of the Board were present at the December 6, 1989
meeting at which decision in this matter was statutorily required
to be made. Section 5 of the Act provides that “4 votes shall be
required for any final determination by the Board.” The draft
Opinion discussed at the meeting failed to pass, the Board being
“deadlocked” at a 3-3 vote. As a statutory majority of 4 votes
could not be mustered for any written Opinion, there is no Opinion
of the Board as to the criterion 1 issue in this case.
CRITERION
NO.
2
The second criterion of Section 39.2 of the Act is whether the
proposed facility is so designed, located and proposed to be
operated so that the public health, safety and welfare will be
protected. The City determined that Applicants failed to meet
their burden of proof on this criterion. Applicants assert that
the City’s decision is against the manifest weight of the evidence.
Applicants’ challenge to the City’s decision on criterion 2 focuses
on evidence relating to the integrity of the bedrock system
underlying the proposed site, the clay liner and a general attack
on the reasons given by individual members of the City Council for
finding that criterion 2 was not met.
The proposed site straddles U.S. Route 6 in a sparsely
populated area of the City of Marseilles, Illinois, approximately
two miles east of the downtown area of Marseilles and two miles
west of the downtown area of the Village of Seneca. (App. Ex. 22
at 3, 5—6, 15; App. Ex. 27; R-2 731). Applicants propose that the
portion of the site located to the south of Route 6 be developed
with a rail terminal, a gas treatment facility, a leachate pre-
treatment facility, maintenance facilities and roadways leading to
1~--2~
7
an underpass unler Route 6, connecting the portion of the site
south of the highway with the western portion of the landfilling
operations north of the highway. (R-l at 509, 561—62, 2167—68;
App. Ex. 6 at 290—91; App. Ex. 14, Sheets 4, 16.)
The landfilling operations themselves north of Route 6 will
be divided between a west site and an east site separated by the
Kickapoo Creek Valley. (App. 6 at 29; App. Ex. 14 Sheet 11.) The
total acreage north of Route 6 is approximately 400 acres, of which
Applicants contemplate 330 acres will accept waste. (R-l at 508;
App. Ex. 6 at 20.) Fifty acres in the Kickapoo Creek Valley, as
well as property along the landfill setback, will be devoted to
semi—private recreational use and conservancy. (App. Ex. 6 at 20;
App. Ex. 14 Sheet 6; App. Ex. 23.) A 1,000,000 square foot section
on the southwest corner of the site, overlying an abandoned coal
mine, has been excluded by Applicants from the waste boundaries.
(App. Ex. 6 at 27; App. Ex. 14 Sheet 10.)
The design of the proposed facility consists of a 10 foot
recomnpacted clay liner overlain with a 60-mil high density
polyethylene synthetic liner, a 12-inch thick sand and gravel
blanket and a leachate collection system.
The quality of the underlying bedrock was the subject of
dispute at the hearings below. The site is underlain by rocks of
the Cambrian, Ordovician and Pennsylvanian systems. (App. Ex. 15
at 4-7.) The St. Peter aquifer underlies the proposed facility and
provides a service of drinking water to several of the surrounding
communities.
Applicants presented testimony that the Pennsylvanian strata
consists of shale, sandstones, limestones and other rocks with a
permeability of less than lxlo—8 cm/sec. Applicants’ geologists
and engineers drilled additional wells into the Ordovician layer
beneath the Pennsylvanian strata at six points around the perimeter
of the proposed site. (App. Ex.
15,
16.) According to Applicants,
the seven deep borings uniformly demonstrate that, included within
the bedrock barrier protecting the St. Peter aquifer, exists
between 45 to 65 feet of shales and underclay. (R-l at 3586, 4378,
4394—96, 4612; R—2 at 2530, 2546, 2661—62.) Applicants contend
that this testing demonstrates the essentially impermeable nature
of the rock.
Applicants also took readings to determine groundwater
eleva~ions and flows. (App. Ex. 6, 15.) Applicants’ expert
testified that the difference in water elevations between the St.
Peter Sandstone and the sand and gravel deposits on the site
establish that there is no hydraulic connection between the two.
(R-2
at 2651, 2661.) According to Applicants, this evidence
demonstrates that the Pennsylvanian strata serves as an aquitard.
i0~25
8
Objectors assert that there are serious problems with the
water—blocking capacity of the Pennsylvanian strata. They contend
that the “safety” criterion has not been met because there are
fractures, fissures and joints in the subsurface bedrock which
would provide an avenue for leachate migration should the liner
fail. Objectors presented testimony in support of their contention
that the rock is of a generally poor quality in that it is
weathered and fissile. These two characteristics indicate that the
rock strata is susceptible to fractures and increased permeability.
(R-1 at 1318-19.) While both parties’ experts agree that there is
jointing in the bedrock at the sit,:, Objectors’ presented testimony
that the jointing is extensive ai~d penetrates the bedrock to the
St. Peter aquifer. (R-2 at 1572, 1789.) Objectors relied upon the
Rock Quality Designations (RQD) to support this assertion. RQD is
an assessment of subsurface rocks with respect to fracture the
purpose of which is to denote the presence of fractures, fissures
and joints. (R-2 at 1708, 1710.) Objectors’ expert testified that
an RQD of less than 50 indicates a very poor rock quality. (R-
2 at 1710.) The Applicants’ boring logs reveal that 75 of all the
rock cores :~adan RQD well below 50. Applicants assert that the
correlation between RQD and permeability is doubtful.
Objectors also presented evidence that the stream drainage
pattern indicates the presence of extensive jointing in the bedrock
which extends to the St. Peter aquifer. (R-2 at 1759, 1778—89,
App. Ex. 44, 45.)
The second major area of dispute concerns the integrity of the
clay liner proposed to be used by Applicants and whether that liner
will resist water penetration. Applicants submitted the results
of soil samples which were tested for grain size, hydraulic
conductivity, Atterberg limits, cation exchange capacity and
moisture content. (B-i at 1162—3.) Applicants assert that the
low permeability, grain size, plasticity and high cation exchange
capacity of the soil will enable it to provide good attenuation as
part of the clay liner. (R—1 at 1182, 1184-85; App. Ex. 7 at
Appendix 6.) Applicants also propose constructing a test pad so
that permeability and density testing may be performed on the soil
both before and after it is incorporated into the liner system to
ensure that a density of
95
standard proctor is achieved. (R-2
at 367; App. Ex. 6 at 73-74.) Applicants experts opined that both
tLe clay liner and polyethylene synthetic liner are designed so as
to protect the public health safety and welfare. (R-l at 531-32,
1199—1200, 1227, 2206, 4408; R—2 at 164, 316—17.)
Objectors submitted testimony that although the soil on the
proposed site is good liner material from a compaction—density
standpoint, the soil is not sufficiently plastic to prevent
flexure. (R—2 at 1724-25.) Objectors’ witness, an expert in clay
mineralogy soil mechanics and rock mechanics, opined that the clay
would be subjected to pressure which would cause the clay to warp
resulting in cracks through the entire liner. (R-2 at 1724-25,
106—26
9
2848, 2882.) Objectors’ experts opined that the proposed facility
is not designed or located so as to protect the public health,
safety and welfare.
The City found that the proposed facility is not so designed,
located and proposed to be operated as to protect the public
health, safety and welfare. The City further stated that:
“The credibility and substance of testimony
offered by the witnesses for the various
objectors outweighs the evidence and testimony
offered by the Applicants, such that the
facility as a whole has not been shown to meet
the requisite health, safety and welfare
criteria sic.
Specifically, the council
questions the integrity of the underlying rock
at the site, finds that the clays and clay
liner are likely inadequate for the retention
of leachate and that for other specific
reasons made known orally on the record by
individual members of the Council, the
criteria sic is not satisfied on this
record.”
Experts testified for Applicants and on behalf of the various
objectors. The credibility to be accorded such testimony is a
matter to be determined by the hearing tribunal, not this Board as
it sits in review of the local decision making body’s
determination. Again, merely because there is some evidence which,
if accepted, would have supported a contrary conclusion, does not
mean that this Board will substitute its decision for that of the
City. After a review of the record, the opposite conclusion from
that reached by the City is not clearly evident. Therefore, this
Board cannot say that the City’s decision regarding the public
health, safety and welfare criterion is against the manifest weight
of the evidence.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City’s decision denying Applicants’ request for site location
approval is hereby affirmed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, ch. lll—½, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme Court
of Illinois establish filing requirements.
IT IS SO ORDERED.
106 27
10
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board here~y certify that the above Opinion and Order was adppted
on the
~
day of
~
~
,
1989 by a vote of
(‘~.
/J~
~
~
/
I
Dorothy M/ Gunn, Clerk
Illinois~Po1lution Control Board
106-~20
