ILLINOIS POLLUTION CONTROL BOARD
November 15, 1989
MCLEAN COUNTY DISPOSAL
)
COMPANY, INC.
)
Petitioner,
PCB 89—108
V.
)
(Landfill Siting
)
Review)
THE COUNTY OF McLEAN,
)
Respondent.
THOMAS
J.
INNEL (IMNEL,
ZELLE, OGREN, McCLAIN, GERNERAAD &
COSTELLO), APPEARED ON BEHALF OF MCLEAN COUNTY DISPOSAL COMPANY,
INC.; and
ERIC T. RUUD, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF OF
MCLEAN COUNTY.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on a July 7, 1989 petition for
review. Petitioner, McLean Coi~~tyDisposal Company, Inc. (MCD),
seeks review of the June 20, 1989 decision of the McLean County
Board (County Board) denying site approval of MCD’S proposed
regional pollution control facility. On July 13, the Board noted
that the petition had been received, but pointed out that MCD had
not paid the statutorily-required $75 fil.ing fee. The July 13
order specifically stated that the 120-day deadline for the Board’s
decision would not start to run until the fee was paid. On July
27, the Board issued an order noting that the filing fee was
received on July 20, 1989, and that therefore the decision period
began to run on July 20.
PROCEDURAL HISTORY
This is the third time that the Board has reviewed the County
Board’s decisions on MCD’s application for site approval. On
August 18, 1987, the County Board denied MCD’S application for
siting approval of a non—hazardous waste landfill, to be located
adjacent to the unincorporated hamlet of Randolph, Illinois. MCD
then filed a petition £or Board review of the County Board’s
decision. On January 21, 1988, in docket PCB 87—133, the Board
held that McLean County had defaulted on the 180-day deadline for
decision, and therefore stated that siting approval was granted by
operation of law. On December 28, 1988, the Illinois Appellate
Court, Fourth District, reversed the Board’s holding on
the
180-
day deadline issue, finding that MCD had waived the issue by
participating in the county proceedings after the statutory time
l(V~ 2~)3
2
for public hearings had passed. Citizens Against the Randolph
Landfill (C.A.R.L.) v. County of McLean, 178 Ill.App.3d 686, 533
N.E.2c1 401, 127 Ill.Dec. 529 (4th Dist. 1988). The appellate court
remanded the case to this Board for further proceedings.
On May 25, 1989 the Board found that audiotapes, rather than
written transcripts, which were available to the County Board
members to review before voting on the application, were inherently
unacceptable as the sole means by which a County Board member may
acquaint himself or herself with the record. Therefore, the Board
remanded the case to the County Board for reconsideration. On June
20, 1989, the County Board again voted to deny MCD’S application
for siting approval. MCD petitioned this Board for review, and the
proceeding was docketed under PCB 89-108. A public hearing was
held on August 28, 1989. Both MCD and the County have elected to
stand on the arguments presented in their briefs filed in PCB 87-
133.
BOARD DECISION DEADLINE
At the August 28 hearing on this petition for review, MCD
raised two issues relating to the proper calculation of the Board’s
120—day decision deadline. Section 40.1(a) of the Environmental
Protection Act (Act) states that “ijf there is no final action by
the Board within 120 days, petitioner may deem the site location
approved.” Il1.Rev.Stat. 1987, ch. 111 1/2, par. 1040.1(a). As
stated above, the petition was filed on July 7, but the required
$75 filing fee was not paid until July 20. Thus, as the Board
noted in its July 13 and July 27 orders, the 120-day decision
timeclock began to run on July 20.
MCD first argues that the 120—day time for decision began to
run on March 1, 1989, when the appellate court issued its mandate
remanding PCB 87-133 to the Board. MCD contends that the Board had
no authority to remand the matter to the County Board (the action
which was taken on May 25), and that the 120-day period for
decision ended on August 2, 1989. Thus, MCD asserts that local
siting has been approved as a matter of law.
The Board has consistently taken the position that the 120-
day decision deadline established in Section 40.1(a) applies only
to petitions for review of local siting decisions when they are
originally filed with the Board. The 120-day deadline does not
apply to reinands from the appellate court when, as here, the Board
took “final action” on the original petition for review within its
120-day period. Even if the 120-day deadline did apply to cases
when remanded by the appellate court, the Board met that deadline
here when it remanded the case on May 25. The Board is directed
by Section 40.1
-
to consider the fundamental fairness of the
procedures used by the County Board in reaching its decision.
Based upon its consideration of fundamental fairness issues in this
case, the Board concluded that the audiotapes available to the
1n5 )~!~
3
County Board members did not satisfy the requirement that each
County Board member have the opportunity to review the record
before voting. McLean County Disposal Company, Inc. v. The County
of McLean, PCB 87—133, May 25, 1989; Ash v. Iroquois County Board,
PCB 87-29, July 16, 1989. The Board has held that the remedy for
a lack of fundamental fairness is a remand to the County Board to
give them an opportunity to cure the problem. City of Rockford v.
Winnebago County Board, PCB 87-92, November 19, 1987. The Board
stresses that it does not believe that the 120—day decision period
applies to remands from the appellate court. The Board wishes only
to point out that its action (the May 25 remand) on the case was
indeed taken within 120 days from the issuance of the appellate
court’s mandate.
Second, MCD maintains that the 120—day period for decision of
this case properly began to run on July 17, not on July 20, as
stated by the Board in its July 27 order. MCD notes that its
filing fee was mailed to the Board on July 17, and contends that
under the Board’s procedural rules, “mailed is filed”. Since the
filing fee was mailed on July 17, MCD asserts that the 120—day
period began on July 17, not on July 20, when it was received by
the Board.
MCD’s arguments are based on an erroneous reading of the
procedural rules. 35 Ill.Adm.Code 101.102(d) states “t)he time
of filing of documents will be the date on which they are date-
stamped by the Clerk, unless date-stamped after any due date. If
received after any due date, the time of mailing shall be deemed
the time of filing.” This rule is based upon Supreme Court Rule
373. See Procedural Rules Revision 35 Ill.Adm.Code 101, 106
(Subpart G), and 107, R88-5(A)
,
June 8, 1989, at p.5. The Board’s
July 13 order gave MCD 21 days (until August 4) to file the filing
fee. NCD’s filing fee was mailed on July 17 and received on the
20th, clearly long before the due date. Therefore, under Section
101.102(d), the time of filing is “the date on which they are date-
stamped by the Clerk”--July 20. The decision deadline began to run
on July 20, not on the 17th.
STATUTORY
1
CRITERIA
At the local level, the site location suitability approval
process is governed by Section 39.2 of the Act. Section 39.2(a)
provides that local authorities are to consider up to nine
criteria. Local siting approval may be granted only if the County
Board or unit of local government finds that all criteria have been
met. The County Board found that MCD had failed to meet three of
the criteria, relating to public health, safety, and welfare,
The Board again notes that it stated in its July 27 order
that the decision time period began on July 20. MCD made no
objection at that time to that order.
1ft~--7~5
4
minimization of incompatibility with the surrounding area, and
minimization of impact on existing traffic flows. County Record,
Document #630 (hereinafter Doc.
I).
When reviewing the County
Board’s decision, this Board must determine whether the County
Board’s decision was contrary to the manifest weight of the
evidence, and whether the procedures used at the local level were
fundamentally fair. E&E Hauling, Inc. v. Pollution Control Board,
116 Ill.App.3d 586, 451 N.E.2d 555 (2d Dist. 1983), aff’d in part
107 Ill.2d 33, 481 NE.2d 664 (1985). All issues of fundamental
fairness have been disposed of in PCB 87-133. Therefore, the only
issue remaining before the Board is whether the County Board’s
decision that Criteria 2, 3, and 6 were not met is against the
manifest weight of the evidence.
Criterion 2
The second criterion to be considered by the County Board is
whether the proposed facility is so designed, located, and proposed
to be operated that the public health, safety, and welfare will be
protected. The County found that the proposed site’s entrance was
not sufficiently designed to protect the public health, safety, and
welfare. The County Board also found that the design, location,
and proposed operation of the facility did not give adequate
protection to the water wells currently relied on by Country Oaks
subdivision. (Doc. #630.)
MCD argues that the County Board’s finding that criterion 2
was not met is contrary to the manifest weight of the evidence
presented by MCD. MCD points to the testimony of its two technical
witnesses on the subjects of site geology and protect-ion of
groi~ndwater, and states that these witnesses concluded that the
proposed facility protected the groundwater and met criterion
2.
MCD also maintains that Beverly Herzog, a consultant hired by the
County Board (and paid by the county with part of MCD’S filing
fee), concluded as part of a staff report that the site was
geologically and hydrogeologically suitable for the facility, and
that the facility was designed and located so as to protect the
public health and safety. Additionally, MCD attacks the testimony
of a technical witness presented by citizen objectors. MCD
contends that in the face of this body of scientific evidence it
is impossible to sustain the County Board’s finding, because the
manifest weight of the evidence is to the contrary.
In response, the County argues that the evidence showed that
the site did not give adequate protection for the water wells
currently relied upon by Country Oaks subdivision, and that this
finding was not contrai-y to the manifest weight of the evidence.
The County contends that some of the testimony of MCD’s witnesses
was incomplete and inconsistent, and that some information was
missing (i.e. no emergency closure plan was submitted, the exact
number and placement of monitoring wells is unknown, and
information on water elevations in the bore holes was omitted).
1t)5 ~
5
The County also points
to testimony
by Dr. Robert Morse, who
testified on
behalf of citizen objectors, and who stated that the
geology of the site made a clay
lining unsatisfactory. Finally,
the County maintains that Ms. Herzog did not find that the site
wholly met the statutory criteria, but recommended that if approval
was granted by the County Board, a leachate collection system and
an offsite monitoring well or wells should be required as
conditions to local site approval. The County points out that Ms.
Herzog was part of an eight member staff group who prepared a
report for the County Board, and argues that the County was in no
way obligated to follow the suggestions and recommendations of its
staff.
Based upon a review of the county record, and after
consideration of the arguments presented by MCD and the County, the
Board finds that the County Board’s decision that criterion 2 was
not satisfied was not against the manifest weight of the evidence.
The witnesses presented by MCD and the citizen objectors gave
sometimes conflicting testimony, and the County Board may have
properly decided to give persuasive weight to the testimony
presented by the objectorst witness.
Additionally, the fact that
Ms. Herzog recommended that the facility met criterion 2, with the
imposition of conditions, in no way binds that County Board to
accept that recommendation.
MCD seems to imply that because Ms.
Herzog heard all the testimony on this
issue and cross—examined the
witnesses, and was retained by the County Board as a technical
advisor, her recommendation is entitled to some greater weight.
The Board rejects this implication. Simply because a County Board
chooses to retain an expert to advise them on the issues presented
in no way gives that expert’s recommendation greater weight than
the other information presented, and certainly does not bind the
County Board to accept that recommendation. As this Board has
noted repeatedly, the standard of review of a local government’s
siting decision is whether the County Board’s decision is against
the manifest weight of the evidence. If the Board finds that the
County Board could have reasonably reached its conclusion, that
conclusion must be affirmed. See Steinberg v. Petra, 139
Ill.App.3d 503, 487 N.E.2d 1064, 94 Ill.Dec. 187 (1st Dist. 1985);
Willowbrook Motel v. Pollution Control Board, 135 Ill.App.3d 343,
481 N.E.2d 1032 (1st Dist. 1985); Fairview Area Citizens Taskforce
v. Village of Fairview, PCB 89—33, June22, 1989. The Board finds
that the County Board’s decision was not against the manifest
weightCriterionof the3 evidence.2
2 The Board notes that the county board cited traffic safety
as one of its reasons for finding that criterion 2 had not been
met, and the both MCD and the county address this issue in briefs.
The Board will address the traffic issues in conjunction with its
consideration of criterion 6.
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6
The third criterion to be considered by the County Board is
whether the proposed facility is located so as to minimize
incompatibility with the character of the surrounding area and to
minimize the effect on t ~e value of the surrounding property. The
County Board stated that its decision was based on the proximity
of the site to currently undeveloped residentially zoned property
and the Country Oaks subdivision and the fact that MCD did not
present any study of the impact of proposed facilities on existing
residential areas. (Doc. #630.)
MCD argues that the County Board’s conclusion that the
facility might have an adverse impact on surrounding property
values is clearly against the manifest weight of the evidence. MCD
contends that it offered an overwhelming body of evidence to the
contrary that the County Board failed to deal with. MCD points to
the testimony of Donald B. Johnson, its witness on the issue. Mr.
Johnson conducted a study of property values in a subdivision
adjacent to an existing landfill in McLean County, and also
examined the sale of properties adjacent to three landfills in the
Chicago area. Mr. Johnson concluded that the properties readily
sold and resold, that property values increased in time in a
pattern consistent with properties not adjacent to landfills, and
that the existence of a landfill actually had no impact after the
facility began operation and controversy had subsided. MCD also
presented testimony from the owner of the proposed facility, Roy
Whittinghill, who testified in detail about the manner in which the
site would be screened from public view, so that Country Oaks
subdivision would not hear or see the facility. MCD characterizes
the criticism that Mr. Johnson’s analysis did not include a study
of the impact of other proposed facilities on
adjacert prc.~Jerties
as “amazing”, and questions how such a study could be performed in
the time period in which a given facility is “proposed”. Finally,
MCD attacks the testimony of Herbert Voights, the witness presented
by the citizen objectors, as “useless”.
The County responds to MCD’s arguments by contending that the
record contains sufficient evidence to support the County Board’s
decision that criterion 3 was not met. The County maintains that
Mr. Johnson’s analysis in effect compared apples and oranges,
because he compared the proposed site with subdivisions which had
been developed, after the landfill was operating in the area. The
County also contends that Mr. Johnson did not consider any impact
on agriculturally zoned property, or the unsubdivided residentially
zoned property contiguous to the site. The County points to the
testimony of Mr. Voights, who concluded that the proposed facility
would lower the value of the existing subdivision and the area
zoned for residential use by ten to twenty—five percent.
After a review of the arguments presented by the parties, and
based upon the evidence in the county record, the Board concludes
that the County Board’s decision that criterion 3 had not been met
7
is against the manifest weight of the evidence. Criterion 3
requires that the proposed facility be located
“. .
.so as to
minimize the effect on the value of the surrounding
property.”
Ill.Rev.Stat. 1987, ch. 111—1/2, par. 1039.2(a) (3) (emphasis added).
The majority of
the testimony presented by both MCD and the
objectors focused on the issue of whether there would be an adverse
impact on property values.
That
is not the proper inquiry on
criterion 3: the question is whether the facility’s location will
minimize the effect on property values, not whether there will be
any adverse effect. The County Board’s decision was apparently
based upon its findings that the facility would cause an adverse
effect on property values, not upon a finding that the facility’s
location would not minimize that effect. The only evidence in the
record which addresses the issue of minimization is the testimony
of Mr. Whittinghill, the owner of MCD, who discussed NCD’s plans
for screening the facility from public view. (Tr. Vol. IX, pp. 41-
49.)
Because the County Board focused
its decision
upon the
adverse effect rather than on any minimization of that effect, and
because the only evidence in the record which addresses the proper
inquiry for criterion 3 is in support of MCD’s position, this Board
finds that the County Board’s decision
that criterion 33was not
satisfied is against the manifest weight of the evidence.
Criterion 6
The sixth criterion to be considered by the County Board is
whether the traffic patterns to or from the facility are so
designed as to minimize the impact on existing traffic f1o~s. The
County Board found that this criterion had not been met, and stated
that its decision was based upon MCD’s failure to design a proposed
entrance to the site, and evidence presented by the objectors on
considerations of the speed limit, possible deterioration of road
625N, and stopping distances.
MCD contends that the County Board’s decision that criterion
6 had not been met was definitely contrary to the manifest weight
of the evidence. MCD points to the traffic study performed by one
of its witnesses, which concluded that road 625N (which would serve
the proposed facility off state Route 51) presently supports larger
vehicles than would be used at the facility and that traffic
patterns to and from the landfill would not be significantly
impacted by the proposed facility. MCD maintains that this
testimony on traffic flows and the volume of traffic is
uncontroverted. MCD also argues that the County Board’s denial of
siting approval because a final driveway design had not been
completed is disingenuous, because that finding in effect reverses
The Board notes that the issue of whether a given facility
satisfies criterion 3 does not depend, in any way, on the socio-
economic status of the surrounding property. See respondent’s
brief at p. 11; petitioner’s reply brief at p. 17.
ifl5--~~)~)
8
the usual procedure for county approval of any entrance to any type
of facility. MCD points to testimony by Herbert Bekermeier, the
county highway superintendent, who stated that the usual procedure
would be to submit a sketch to the county highway department, and
to complete the final design in consultation with the highway
department. Additionally, MCD contends that the concerns of David
Kistner, a member of the McLean County Sheriff’s Department, about
the line of sight necessary for adequate stopping distance were in
essence remedied by Mr. Kistner’s own testimony, when he admitted
that the concerns could probably be rectified in the design of the
driveway entrance. Finally, at the public hearing on this petition
for review, MCD pointed to the Board’s decision in Waste Management
v. Village of Bensenville, PCB 89—28, August 10, 1989, as support
for its contention that the County Board’s decision was against the
manifest weight of the evidence.
In response, the County argues that MCD did not meet its
burden of proof on criterion 6. The County contends that analysis
of Mr. Kistner’s testimony shows that the “non-design” of the
entrance to the proposed facility lacks safety considerations, and
maintains that the prospective designs offered by MCD’S witness are
poor evidence that traffic patterns and traffic flow will be
minimized. The County also points to Mr. Bekermeier’s testimony
that thá road surface would require resurfacing to accommodate the
large garbage trucks anticipated at the facility, and that the
garbage trucks would be operated year around on the surface, while
the grain trucks which currently use the road travel only on a
seasonal basis. Additionally, the County states that MCD’S
argument that Mr. Bekermeier’s testimony relates to ‘wear and tear
and not to traffic flow is short—sighted, because it is precisely
the pattern and flow of traffic which creates the problen.
The Board
finds, after a review
of the record, that the County
Board’s decision is not against the manifest weight of the
evidence. There was testimony presented on both sides of the
issue, and the Board believes that the County Board could have
reasonably concluded that the traffic patterns were not designed
to minimize the impact on existing traffic flows. The Board
reiterates that it reviews the County Board’s decision: this Board
does not make its own decision on whether criterion 6 was met. The
Board notes that in Waste Management v. Village of Bensenville,
cited by MCD, the Board reversed Bensenville’s finding that
criterion 6 was not satisfied. The Board stated that the applicant
had demonstrated that it designed the facility to minimize impact
on existing traffic flows, and found that Bensenville could not
properly require the applicant to consider changing the existing
traffic flows. The Board believes that the decision in the instant
case is a close call, because the County does seem to imply that
MCD should change the traffic flow, and not just minimize the
impact on existing traffic. This implication is improper.
However, the Board finds that the County could have reasonably
decided that MCD did not show that criterion 6 was met, since
1,r
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several of the county’s Concerns were left unanswered by MCD’s
preliminary traffic pattern designs. The Board does not believe
that it is improper for the County to expect an applicant to
provide a completed traffic design. The fact that the design might
later be modified in consultation with county highway officials
does not relieve MCD from its responsibility to show that criterion
6 was met.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board affirms the County Board’s June 20, 1989 denial of
MCD’s application for siting approval of MCD’s proposed regional
pollution control facility.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, Ill.Rev.Stat.
1987, ch. 111—1/2, 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.
B. Forcade concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify t a the above-Opinion and Order was adopted
on the /6~day of
~--~~,~1989,
by a vote of
7—’~’
~
.A ~
Dorothy M. ~Gunn, Clerk
Illinois Pollution Control Board
1 (~
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