ILLINOIS POLLUTION CONTROL BOARD
August 30, 1990
HORACE FILE, ERWIN HEIGER, ARLIN WOKER)
ANDY TIFT, LAYTON PEDDICORD,
)
BURNELL
UMAN,LAVERLE EAKLE,
LYNN SCHNOLLINGER, HOWARD PRINGLE,
)
REID BINGHAM, CRAIG WOKER, MRS. O.J.
)
DAIL, JEANETTE TIFT, ARLENE DAIL, GLEN)
MILES, JUANITIJA HEDIGER, LEILA
MILES, BILL GOODALL, CAROLYN
)
SPRADLING, DONNA HAMPTON, HOLLIE
)
WILLMAN, CHARLES H. FUNK,
LEROY
)
WEISE, MIKE EATON, PAM
FUNK,
)
JIM STOECKLIN,
MARY BLOENKER,
)
DONALD SPRADLING, BOB BOWEN,
)
DON MARTIN, JEANETTE FILE, and
)
BOND COUNTY CONCERNED CITIZENS,
)
Petitioners,
V.
)
PCB 90-94
(Siting Review)
D & L LANDFILL, INC.,
BOND
COUNTY BOARD OF
)
SUPERVISORS, COUNTY OF BOND,
)
STATE OF ILLINOIS,
)
Respondents.
JAMES BUCHMILLER APPEARED FOR PETITIONERS;
WILLARD A. DILLOW APPEARED FOR D & L LANDFILL;
JOHN KNIGHT, BOND COUNTY STATE1S ATTRONEY APPREARED FOR BOND COUNTY
SUPERVISORS.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter comes before the Board upon a petition for hearing
filed by petitioners on May 7, 1990 contesting the decision of the
Bond County Board of Supervisors (“County Board”) granting D & L
Landfill (D & L) site location approval for a new regional
pollution control facility. Petitioners are persons living and/or
owning property in the vicinity of the proposed facility and bring
this appeal pursuant to Section 40.1(b) of the Environmental
Protection Act (Act) (Ill. Rev. Stat. 1989, ch. 111 1/2, par.
1040.1(b)).
PROCEDURAL HISTORY
On October 10, 1989, D & L filed its application for site
I 1~’~~7
2
location suitability approval for a proposed facility to be located
at the southwest entrance to Greenville, Bond County, Illinois.
The proposed facility would be located adjacent to an existing
facility (the “McCray” landfill) also owned by D & L, but it would
be developed and operated independent of the NcCray facility. (BCB
Ex. 1)1 On January 24, 1990, a public hearing was held in Bond
County. The testimony and exhibits introduced at that hearing will
be addressed in the “DISCUSSION” section of this opinion. On April
3, 1990, Bond County reached its decision finding that, with the
imposition of certain conditions, D & L had met its burden of proof
on each of the six applicable criteria set forth in Section 39.2
of the Act. (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 1039.2.)
In their petition for hearing filed May 7, 1990, petitioners
assert that the County Board’s decision that D & L met its burden
of proof on criteria 1, 2, 3 and 6 of Section 39.2 of the Act is
against the manifest weight of the evidence. Petitioners therefore
request that the Board reverse the County Board’s decision granting
site location approval.
SCOPE OF REVIEW
Requirements for the siting of a new regional pollution
control facility are set forth in Section 39.2 of the Act. Section
39.2 sets forth nine criteria, six of which are applicable here,’
which must be satisfied in order to obtain site approval. Upon
review, the Board is required to review each of the challenged
criteria. (Waste Management v. PCB, 530 N.E.2d 682, 691—92 (2d
Dist. 1988).) In the instant matter, petitioners challenge the
CountyTherefore,Board’sthe findingsBoard
muston determinefour
of thewhetherapplicablethe
Countysix
criteria.Board’s2
decisions on criteria 1, 2, 3 and 6 are against the manifest weight
of the evidence. (Waste Management of Illinois v. PCB, 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
be arbitrary, unreasonable, and not based upon
the evidence. A verdict cannot be set aside
1
“BCB Ex.
* “
denotes exhibits introduced by the County
Board. “BCC Ex.
* “
denotes exhibits introduced by
petitioners, Bond County Concerned Citizens.
2
Neither petitioners nor D & L have challenged the
imposition of conditions imposed by the County Board.
Consequently, the Board will not review the propriety of
those conditions.
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3
merely because the County Board) could have
drawn different inferences and conclusions
from conflicting testimony or because the
Board) would have reached a different
conclusion
...
when considering whether a
verdict was contrary to the manifest weight of
the evidence, the Board) must view the
evidence in the light most favorable to the
party for whom favorable judgment was
rendered).
(Steinberg v. Petta, 487 N.E.2d 1064, 1069
(1st Dist. 1985).)
Consequently, if after reviewing the record, this Board finds
that the County Board could have reasonably reached its conclusion,
the decision must be affirmed. That a different conclusion might
also be reasonable is insufficient for reversal; the opposite
conclusion must be clearly evident. (Willowbrook Motel v. PCB,
481 N.E.2d 1032 (1st Dist. 1985).)
DISCUSSION
In reviewing the County Board’s decision, the Act requires
that the Board consider the “fundamental fairness of the procedures
used by the
...
governing body of the municipality in reaching its
decision.” (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 1040.1(a).)
Here, petitioners do not challenge the procedures used by the
County Board in reaching its decision. After reviewing the record,
the Board finds that the County Board adhered to principles of
fundamental fairness in reaching its decision.
Criterion 1
Section 39.2(a)(l) of the Act requires the County Board to
review D & L’s request for site location 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. 1989, ch.
111 1/2, par. 1039.2(a)(1).) The Board must determine whether the
Count Board’s finding that D & L established “need” is against the
manifest weight of the evidence.
Mr. David Kimmle, a civil engineer employed by Hurst—Rosche
Engineers, Inc., the firm hired by D & L to prepare its
application, testified on behalf of D & L. (Tr. at 11-53.) Kimmie
testified that the existing McCray facility has a “minimal”
remaining capacity, but that he did not know the exact figure.
(Tr. at 52.) Mr. Thomas Connor, a civil engineer and Director of
Hurst—Rosche, testified that the McCray facility had a remaining
capacity of “two years based on our calculations.” (Tr.
at 58.)
Petitioners
introduced a report prepared by the Agency in
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March 8, 1988 entitled “Annual Solid Waste Disposal And Landfill
Capacities In Southwestern Illinois” in support of their contention
that the facility is not “needed”. (8CC Ex. 10.) Petitioners did
not present the testimony of anyone familiar with the preparation
of this report but cross-examined Mr. Kimmle’s position on “need”
based upon a statement in the report that the McCray landfill had
a remaining capacity of 16 years based upon 1987 data. (Tr. at
35-38.) Mr. Kimmle did not agree with the findings contained in
the report stating that “Bond County is well aware that there is
not 16 years of life available.” (Tr. at 37-38.)
The appellate court has held that an applicant for siting
approval need not show absolute necessity in order to satisfy
criterion 1. (Clutts v. Beasley, 541 N.E.2d 844, 846 (5th Dist.
1989); A.R.F. Landfill v. PCB, 528 N.E.2d 390, 396 (2d Dist. 1988);
WMI v. PCB, 461 N.E.2d 542, 546 (3d Dist. 1984).) The Third
District has construed “necessary” as connoting a “degree of
requirement or essentiality.” (WMI v. PCB, 461 N.E.2d at 546.)
The Second District has adopted this construction of “necessary”,
with the additional requirement that the applicant demonstrate both
an urgent need for, and the reasonable convenience of, the new
facility. (Waste Management v. PCB, 530 N.E.2d 682, 689 (2d Dist.
1988; A.R.F. Landfill v. PCB, 528 N.E.2d at 396; WMI
V.
PCB, 463
N.E.2d 969, 976(2d Dist. 1984.).)
In their petition to the Board, petitioners state that
criterion 1 has not been met because D & L failed to introduce
evidence “establishing the radius of the proposed site.” The
record does not contain specific evidence of the proposed service
area. However, given that both D & L and petitioners addressed
“need” in terms of the remaining capacity of the existing McCray
facility, it is reasonable to conclude that the parties and the
County Board, being familiar with the area, assessed need in terms
of the area serviced by the existing facility. The Board finds
that the failure to define a specific radius under the
circumstances presented here does not, in and of itself, warrant
the conclusion that the County Board’s decision on criterion 1 is
against the manifest weight of the evidence.
The Board notes that the record in this case is sparse, both
regarding evidence introduced in support of the application by D
& L and rebuttal evidence introduced on behalf of petitioners. D
& L’s evidence relating to need, discussed above, is not extremely
detailed. The evidence on the remaining capacity of the existing
landfill is conflicting; a range of two years to 16 years was
presented to the County Board. Neither D & L nor petitioners went
to great lengths to attempt to explain this discrepancy. The Board
finds that the County Board could have reasonably rejected reliance
upon the Agency’s 1988 report and concluded that the proposed
facility is needed based upon the testimony presented by D & L.
The County Board could have also accepted the evidence of remaining
capacity in the Agency report, yet still concuded that the proposed
11
SI
1)
5
facility is “needed.” As noted above, merely because the County
Board could have drawn different inferences and conclusions from
this conflicting testimony is not a basis for this Board to reverse
the County Board’s finding. (Steinberg v. Petta, 487 N.E.2d at
1069.) The Board cannot say, based upon the record, that the County
Board’s decision that the proposed facility is necessary is
“palpably erroneous” or “wholly unwarranted.”
(u.)
Therefore,
the Board concludes that the County Board’s decision that D & L met
its burden of proof on criterion 1 is not against the manifest
weight of the evidence.
Criterion 2
The second criterion of Section 39.2 of the Act requires that
the applicant establish that the proposed facility is so designed,
located and proposed to be operated so that the public health,
safety and welfare will be protected. The record includes a report
detailing the findings of a subsurface investigation of the
proposed site prepared by Atlas Soils, a subsidiary of Hurst—
Rosche Engineers, Inc. (BCE Ex. 2.) Mr. Kimmle testified that 20
soil borings were taken in order to evaluate the hydrogeologic
conditions beneath and surrounding the site. (Tr. at 13, 17-20.)
According to Mr. Kinimle, the findings of this investigation
indicate that the site is “primarily glacial till, which is a hard
compact soil.” (Tr. at 17; BCC Ex. 1 at 15.) Numerous “sand
lenses” were also found. (Id.) Kimmle testified that sand lenses
are small seams of sand and that there is usually groundwater
associated with sand lenses. (~c~.) D & L plans to excavate down
to the hard glacial till and excavate out any sand lenses before
any trash placement occurs. (Id.) The sand lenses would be
replaced with material sufficient to meet the requirement of 10
feet of clay liner. (Id.) Kimmle also testified regarding the
proposed groundwater monitoring system. (Tr. at 18.) The
subsurface investigation report also sets forth details of the
proposed monitoring system. (8CC Ex. 2 at 17—18.) Approximately
15 wells would be installed to monitor possible groundwater
contamination. (Id.)
Petitioners cross—examined Kiminle regarding a letter he had
received from the Illinois State Geological Survey Division of the
Illinois Department of Energy and Natural Resources. (BCC Ex. 1
at F-l; BCC Ex. 4.) This letter was in response to D & L’s request
for a preliminary hydrogeologic evaluation and was based upon six
boring logs provided by D & L and not on an on-site investigation.
The letter states that the materials beneath the proposed expansion
“have a relatively high potential for contamination.
...
If
shallow trenches are planned, there appears to be a moderate chance
of groundwater contamination
... .“
Kimmie responded that the
trenches would be sufficiently deep to excavate out the sand lenses
which will then be replaced with suitable liner material, thereby
protecting the groundwater. (Tr. at 26—28.) Kiminle also testified
that, in addition to the clay liner, a synthetic liner would be
111 ~11
6
installed. (Tr. at 28.) Mr. Connor also testified regarding the
liner, leachate collection system and groundwater monitoring
system. (Tr. at 54-65.)
In their petition for hearing, petitioners state that “there
was no substantial evidence received that the facility would meet
the requirements of criterion 2). According to petitioners:
“the uncontradicted evidence was that the facility
would extend twenty feet above the existing elevation in
the immediate area of existing residences. That the
facility would be within site of work and mounds of
trash, within earshot of compacting and heavy equipment
and burial operations; could be smelled by nearby
residents, and from uncontradicted testimony from real
estate appraisers that real estate property and residents
in the area would be severely depressed. There was also
uncontradicted evidence submitted by the respondent that
the site was immediately adjacent to one of the main
entrances at the city limits of the City of Greenville,
it could be heard, seen and smelled by persons on the
major highway coming to and from the city at one of its
main entrances to a residential area.
The Board fails to see how these matters raised by petitioners
relate to the public health, safety and welfare factors of
criterion 2. Rather, these matters seem more relevant to an
assessment of the County Board’s finding on criterion 3. In any
event, D & L provided sufficient evidence, both in its application
and supporting documents and testimony, to support the County
Board’s decision that criterion 2 has been satisfied. The Board
finds that the County Board’s decision that D & L established that
the facility is designed and will be operated to protect public
health, safety and welfare is not against the manifest weight of
the evidence.
Criterion 3
Criterion 3 of Section 39.2 requires that the facility be
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.
The proposed facility is located
approximately 600 yards to the east/northeast of the city limits
of Greenville in a sparsely populated area used primarily for
farming. (BCE Ex. 1 at 13.) The area is zoned as agricultural or
general manufacturing. (BCE Ex. 1 at 13.) There is one residence
within 200 feet of the facility and approximately 4 residences
within 500 feet of the proposed site. (Tr. at 42.) D & L proposes
that the following measures be taken to minimize the site’s
incompatibility with the surrounding area: the facility would be
limited in height to 20 to 30 feet above the highway (Tr. at 40);
a row of oak trees approximately 3 inches in diameter and 6 to 8
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feet tall would be planted along the highway to conceal the site
(Tr. at 15, 33); a 6 foot high woven wire fence will be installed
around the site; and the exterior slopes would be landscaped with
grass. (Tr. at 40.) D & L did not conduct a study of the impact
of the proposed facility on the surrounding property values.
However, it did present the testimony of a witness who purchased
a home within 750 feet of the existing landfill in 1986 for
$62,500. (Tr. at 69—71.)
Petitioners introduced several statements from realtors
opining that the value of certain properties would be significantly
decreased if the proposed landfill went forward at the proposed
site. (BCC Ex. 5-8.) The realtors who prepared these statements
were not available for cross—examination. However, on cross—
examination of one of the petitioners familiar with the appraisals
it was revealed that several of the valuations were based upon an
incorrect assumption of where the entrance to the proposed facility
would be located. (Tr. at 104-05.)
The appellate court has construed criterion 3 as requiring
that the testimony adequately show that the applicant has taken
steps to do what is reasonably necessary to minimize
incompatibility. (Waste Management of Illinois v. PCB, 463 N.E.2d
969, 980 (2d Dist. 1984).) D & L presented sufficient evidence
of proposed measures to be taken to minimize the proposed
facility’s impact on the surrounding area. The County Board could
reasonably have concluded that D & L’s proposed actions were
reasonably calculated to minimize incompatibility. Additionally,
criterion 3 requires only that the applicant establish that the
facility be located to minimize, not eliminate, the effect on
surrounding property values. The Board cannot say that the County
Board’s rejection of reliance upon the realtors’ appraisals, where
those persons were not available for cross-examination, is wholly
unwarranted in light of testimony that homes were purchased near
the existing McCray site. The Board concludes that the County
Board’s decision that D & L met its burden on criterion 3 is not
against the manifest weight of the evidence.
Criterion 6
Criterion 6 of Section 39.2 of the Act requires that the
applicant establish that the ‘ttraffic patterns to or from the
facility are so designed as to minimize the impact on existing
traffic flows.” Mr. Kimmle testified that entrance to the proposed
facility would be by way of the entrance to the.existing facility.
(Tr. at 41; BCB Ex. 1 at 23.) An access road will be provided from
the existing site to the proposed site.
(n.)
Petitioners’ cross-
examination of Kimmle revealed that the road leading to the
entrance is a two-lane highway. (Tr. at 41.) Petitioners also
introduced
the testimony
of Erwin Hediger who lives
near the
proposed site.
Mr
Hediger testified
that highway is old and
narrow.
(Tr. at 92.)
Mr.
Hediger expressed concern about
I I?+-~I3
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increased traffic resulting from the proposed facility.
The Board reiterates that the record in this matter is far
from replete with evidence. Given the evidence concerning use of
the existing entrance to the NcCray facility, the County Board
could have concluded that the impact on existing traffic patterns
would be minimal. Again, the Board is constrained in its review
by the “manifest weight of the evidence standard of review” and
concludes that the County Board, being familiar with the means of
access to the proposed facility, could have reasonably concluded
that D & L met its burden of proof on criterion 6. Therefore, the
Board finds that the County Board’s decision is not against the
manifest weight of the evidence.
Based upon the foregoing, the Board concludes that the
decision of the County Board finding that D & L has met the
requirements of Section 39.2 of the Act and granting D & L site
approval is not 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 decision of the Bond County Board of Supervisors granting
D & L Landfill, Inc. site location approval is hereby affirmed.
Section 41 of the Environmental Protection Act (Ill. Rev.
Stat. 1989, ch. 111 1/2, par. 1041) provides for the 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.
B. Forcade concurs.
J. D. Dumelle dissents.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board hereby certify that the above Opinion and Order was adopted
on the
~
day of
______________
,
1990, by a vote of~-/
Dorothy M. Gu n,
~.
Clerk
~L~///~,
Pollution Cohtrol Board
II !—3I
!,