ILLINOIS POLLUTION CONTROL BOARD
June
22,
1989
FAIRVIEW AREA CITIZENS
)
TASKFORCE,
and RICHARD KLEINE,
NORMA
KLEINE, JOSEPH COMER,
)
MICHELLE
COMER,
LEWIS
NEWCOMB,
)
WALTER
NEWCOMB,
HARRY
POSTIN,
)
DELORES
POSTIN,
GERALD
BALES,
)
PCB
89—33
VIRGINIA
BALES,
JOHN
BEOLETTO,
MICHAEL BEOLETTO, GERALD BALL,
BECKY BALL,
LYLE UTSINGER, GARY
HOLLIS,
DIANE
HOLLIS,
JUNIOR
SCFILEICH,
MELBA
SCHLEICH,
Petitioners,
vs.
VILLAGE
OF’ FAIRVIEW AND GALLATIN
NATIONAL COMPANY,
)
Respondents.
MICHAEL
F.
KUKLA (COWLIN, UNGVARSKY, KUKLA,
& CURRAN)
APPEARED ON
BEHALF OF PETITIONERS;
Jo~-1N
J. McCARTHY, ATTORNEY-AT—LAW, AND RALPH FROEHLING
(FROEFILING, TAYLOR,
& WEBER) APPEARED ON BEHALF OF RESPONDENT
VILLAGE OF FAIRVIEW;
and
THOMAS
R. MULROY,
JR.,
RAYMOND
T.
REOTT, AND REBECCA
L. RAFTERY
(JENNER
& BLOCK)
APPEARED ON BEHALF OF RESPONDENT GALLATIN
NATIONAL COMPANY.
OPINION AND ORDER OF THE BOARD
(by R.
C.
FleTnal):
This matter
is before the Board on
a February 16,
1989
petition to contest granting
of site approval,
filed
by the
Fairview Area Citizens Taskforce
(FACT)
and Richard Kleine,
Norma
Kleine, Joseph Corner, Michelle Corner,
Lewis Newcomb, Walter
Newcornb,
Harry
Postin,
Delores Postin,
Gerald Bales, Virginia
Bales, John Beoletto,
Michael Beoletto,
Gerald Ball,
Becky Ball,
Lyle Utsinger,
Gary Hollis, Diane Hollis, Junior Schleich,
and
Melba Schleich.
(All petitioners will be collectively referred
to
as FACT.)
The petition seeks review
of
a January
9,
1989
decision
of the Fairview Village Board
(Village) granting site
approval
of
respondent
Gallatin
National
Company’s
(Gallatin)
proposed
regional
pollution
control
facility.
This Board
held
a
public
hearing
on
the
petition
for
review
on
April
11,
1989.
100—237
—2—
FACT contends that the procedures used by the Village in
ruling upon Gallatin’s application were fundamentally unfair,
thus denying FACT a fair hearing.
FACT also argues that the
Village’s decision to grant site location approval was against
the manifest weight
of the evidence.
Based
on the record before
it,
the Board finds that the procedures used at the local level
were fundamentally fair,
and that the Village’s decision
to grant
siting approval was not against the manifest weight
of the
evidence.
Therefore,
the Village’s decision
is affirmed.
HISTORY
On July 27,
1988 Gallatin
filed
its application
for
siting
approval of
a sanitary baleful/landfill
to be located within the
Village
of Fairview.
Gallatin owns 2,750 acres of land
in the
Village;
this land was annexed by the Village in 1987.
The site
proposed for approval consists of 995 acres,
80
of which will be
used
for waste disposal.
The Village Board held public hearings
on October
29 and November
2,
4,
12, 16,
19,
and 20,
1988.
Gallatin presented eight witnesses,
and FACT,
which was
represented by counsel, presented five witnesses.
All witnesses
were cross—examined,
and members
of the public made oral
statements.
A written public comment period followed the
hearings.
A few hundred comments were received by the Village
Clerk during that time.
Daily and Associates,
an engineering
firm retained by the Village,
submitted
its report on the last
day of
the public comment period.
The Village Board discussed the application at
its January
2,
1989 meeting.
The Village Board also denied FACT’s objection
to
the engineering report
filed by Daily and Associates.
That
objection was based upon FACT’s claims that the report contained
references
to things outside the record,
and
that the opinions
and interpretations
in the report were never subject
to crosS
examination.
At
a special meeting on January
9,
1989,
the
Village Board approved Gallatin’s application
for site approval
by
a vote of
5—1.
STATUTORY FRAMEWORK
At the local level,
the siting approval process
is governed
by Section 39.2 of the Environmental Protection Act
(Act).
Ill.
Rev.
Stat.
1987,
ch.
lll1A),
par.
1039.2.
Section 39.2(a)
provides
that local authorities are to consider
as many as
nine criteria
when reviewing an application.
Only
if the local body
(in this
case,
the village Board)
finds that all applicable criteria have
been met can siting approval be granted.
The six criteria which
are applicable
to this case are:
1.
the facility
is necessary to accommodate
the waste
needs of the area it
is
intended
to serve;
100—238
—3—
2.
the
facility
is
so
designed,
located
and
proposed
to be operated that the public health,
safety and
welfare
will
be
protected.
3.
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;
4.
the
facility
is
located
outside
the
boundary
of
the
100
year
flood
plain
or
the
site
is
flood—proofed;
5.
the
plan
of
operations
for
the
facility
is
designed
to
minimize
the
danger
to
the
surrounding
area
from
fire,
spills,
or
other
operational
accidents;
and
6.
the
traffic
patterns
to
or
from
the
facility
are
so
designed
as
to
minimize
the
impact
on
existing
traffic
flows.
Section
40.1
of
the
Act
charges
this
Board
with
reviewing
the
village
Board’s
decision.
Specifically,
this
Board
must
determine
whether
the
Village
Board’s
decision
was
contrary
to
the
manifest
weight
of
the
evidence.
E&E
Hauling,
Inc.
v.
Illinois
Pollution
Control
Board,
116
Ill.
App.
3d
586,
451
N.E.
2d
555
(2nd
Dist.
1983),
aff’d
in
part
107
Ill.
2d
33,
481
N.E.2d
664
(1985);
City
of
Rockford
v.
IPCB,
125
Ill.
App.
3d
384,
386,
465
N.E.2d
996
(1984);
Waste
Management
of
Illinois,
Inc.,
v.
IPCB,
122
Ill.
App.
3d
639,
461
N.E.2d
542
(1984).
The
standard
of
manifest
weight
of
the
evidence
is:
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
merely
because
the
jury
Village
Board
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
fa~iorable
to
the
appellee.
Steinberg
v.
Petra,
139
Ill.
App.
3d
503,
508
(1986).
Consequently,
if
after
reviewing
the
record,
this
Board
finds
that
the
Village
Board
could
have
reasonably
reached
its
conclusion,
the
Village
Board’s
decision
must
be
affirmed.
That
a
different
conclusion
might
also
be
reasonable
is
insufficient;
the
opposite
conclusion
must
be
evident.
(See
Willowbrook
Motel
v~ IPCB,
135
Ill.
App.
3d
343,
481
N.E.2d
1032
(1st
Dist.
1985Y~)
100— 239
—4—
The Board
is also required by Section 40.1
to evaluate
whether
the Village Board’s procedures used in reaching its
decision were fundamentally fair.
E&E Hauling, 451 N.E.2d at
562.
Because the issue of fundamental
fairness
is
a threshold
matter,
the Board will consider that issue first.
FUNDAMENTAL FAIRNESS
Section 40.1 requires that this Board review
the proceedings
before the Village Board to assure fundamental faitness.
In E&E
Hauling,
the Appellate Court,
Second District,
found that
statutory fundamental fairness requires application of standards
of adjudicative due process.
451 N.E.2d
at
564.
1n an analysis
of bias
or prejudgment,
elected and administrative officials are
presumed
to be objective and
to act without bias.
The mere fact
that an official has expressed strong views or taken
a public
position on an issue does not overcome that presumption.
Nor
is
it sufficient
to show that an official’s alleged predisposition
resulted from his or her participation
in earlier proceedings on
the issue
in dispute.
Citizens
for
a Better Environment
v.
Pollution Control Board,
152
Ill.
App.
3d 105, 504 N.E.2d
166,
171
(1st Dist.
1987).
A decision must be reversed, or vacated and remanded, where
“as
a result of improper ex parte communications,
the agency’s
decisionmaking process was irrevocably tainted
so as
to make the
ultimate judgment of the agency unfair,
either to an innocent
Party
or
to the public
interest that the agency was obliged
to
protect.”
E&E Hauling, 451 N.E.2d at 571.
Finally, adjudicatory
0ue process requires that decisionmakers properly “hear”
the case
and that those who do not attend hearings
in a given case base
their determinations on the evidence contained
in the transcribed
record
of
such hearings.
451 N.E.2d
at 569.
Predisposition
FACT first argues that
the Village Board was predisposed
to
approve Gallatiri’s siting application.
FACT points to the
November
2,
1987 annexation agreement between the Village and
Gallatin, which provides for economic benefits
to the Village
if
a landfill subsequently is sited
and developed
on Gallatin’s
100—240
—5—
annexed property.
(PCB
Pet.
Ex.
l.)l
Among others,
those
economic benefits include
ten to twenty jobs,
free natural
gas,
and payments of
at least $50,000 annually to the Village.
(PCB
Pet.
Ex.
1,
pp.
8—Il,
18.)
FACT maintains
that because Fairview
is
a small village of 550 people which
needs economic security
badly,
the
Village
Board
was
predisposed
by
the
economic
benefits
offered
in
the
annexation
agreement
to
approve
Gallatin’s
siting
application.
In
response,
Gallatin
contends
that
the
Appellate
Court,
Third
District,
has
rejected
a
claim
identical
to
FACT’s
argument
in
Woodsmoke
Resorts
Inc.
v.
City
of
Marseilles,
174
Ill.
App.3d
906,
529
N.E.2d
274,
124
111.
Dec.
454
(3d
Dist.
1988).
In
that
case,
the
appellate
court
held
that
the
mere
existence
of
an
annexation
agreement
did
not
preclude
tne
Marseilles
board
from
impartially
reviewing
an
application
for
site
approval.
Gallatin
also
argues
that
FACT
has
waived
any
claim
that
the
Village
Board
was
predisposed
by
economic
benefits,
because
FACT
failed
to
challenge
the
Village
Board
members
before
the
local
siting
hearings.
In
support
of
its
waiver
argument,
Gallatin
cites
A.R.F.
Landfill,
Inc.
v.
Pollution
Control
Board,
174
Ill.
App.
3d
82,
528
N.E.2d
390,
123
Ill.
Dec.
845
(2d
Dist.
1988.)
The
Board
agrees
with
Gallatin
that
FACT
has
waived
its
claim
that
the
Village
Board
was
predisposed
by
the
economic
benefit
promised
in
the
annexation
agreement.
The
annexation
agreement
pre—dates
the
siting
application
by
eight
months,
and
FACT
knew
of
the
existence
of
the
agreement.
Therefore,
any
challenge
based
upon
the
annexation
agreement
should
have
been
raised
at
the
local
level.
A
claim
of
bias
must
be
asserted
promptly
after
knowledge
of
the
alleged
disqualification,
because
it
would
be
improper
to allow
a party to withhold
a claim of bias
until
it
received
an
unfavorable
result.
E&E
Hauling,
481
N.E.
2d
at
666.
FACT’s
allegations
of
predisposition
based
upon
the
annexation
agreement
could
have
been
raised
before
the
local
hearings even began.
Thus,
the Board
finds
that the issue has
been waived.
A.R.F.
Landfill,
528 N.E.
2d
at 394; Waste
Management
of
Illinois
v.
Pollution Control Board,
175
Ill.
App.
3d
1023,
530
N.E.
2d
682,
694—95,
125
Ill.
Dec.
524
(2d
Dist.
1988)
Even
if the issue were not waived,
the Board does not
believe
that
the existence
of the annexation agreement,
with
its
promise of economic benefits
if
a landfill was sited and
~Exflibits
admitted
at
the
Board
hearing
on
this petition for
review
are
identified
as
“PCB
Ex.
_____“,
and
references
to
the
transcript taken at
the Board hearing
are cited
as
“Tr.
_______
References
to the transcript
taken at the Village hearings are
cited
as
“R. Vol.
100—241
—6—
developed,
shows predisposition of the Village Board.
Woodsmoke
Resorts clearly holds that a local governing body
is not
disqualified from reviewing
a siting application where that local
body has annexed property and, pursuant to an annexation
agreement,
stands to gain financially
if
a landfill eventually
operates on that property.
The
facts
in this case are very
similar
to those
in Woodsmoke Resorts
indeed,
in Woodsmoke
Resorts the City of Marseilles stood to gain at least seven
mi1li~ndollars,
an amount far greater than the amount
at issue
here.’
(The Board does not imply,
however,
that the amount of
the economic benefit establishes a bias orpredisposition.)
A
claim of predisposition based upon economic benefits
to the local
governing body was also rejected
in E&E Hauling.
481 N.E.
2d at
667—68.
As has been pointed out, public officials are presumed
to be objective and
to act without bias.
FACT has not
demonstrated that the Village Board had adjudged the facts
as
well
as
the law before hearing the case.
E&E Hauling; A.R.F.
Landfill; Waste Management; Citizens for
a Better Environment.
Second, FACT maintains that the Village Board was
predisposed
to approve Gallatin’s application
by virtue of its
retention of an engineering firm,
Daily and Associates,
and by
the opinions and conclusions expressed by Otis Michels,
the Daily
engineer assigned
to the project.
Daily and Associates was
retained by the Village Board
in January 1988 “to provide
engineering services on request
for and by the Village
to monitor
activities, review documents and advise the Village regarding
Gallatin National,
Inc. preparation of documents
for
a siting
hearing
and IEPA permits and related assignments.”
(PCB Resp.
Ex.
1.)
FACT contends that Mr. Michels had concluded before
the
siting hearings were held that the six statutory criteria had
been met, and that any open issues were resolved in
a meeting
attended by Mr. Michels,
the Village attorney, Gallatin’s
engineers,
and Gallatin’s attorneys in September 1988
(after the
filing
of the application).
FACT maintains
that Mr. Michels had
pre—approved
the siting application,
and that the Village Board
relied upon Mr.
Michels’
expertise when deciding
to approve the
application.
In response, Gallatin argues that the Village was entitled
to retain an
independent expert
to advise
it on the complex and
technical aspects of
the application and the evidence presented
2The Board notes that FACT attempts
to distinguish Woodsmoke
Resorts by pointing out that Woodsmoke Resorts was filed b~~ore
a
a Section 39.2
local siting hearing was held.
That
is
true;
however, contrary to~FACT’s claim,
the Woodsmoke Resorts court
did
riot rule that administrative remedies must
be exhausted
(i.e., proceeding with the local hearing)
before such
a challenge
could
be raised.
100— 24 2
—7—
at the siting hearings.
Town of
St.
Charles
v.
Kane County
Board,
57
PCB
201
(PCB
83—228,
March
21,
1984),
vacated
on
other
grounds
sub
norn.
Kane
County
Defenders
v.
Pollution
Control
Board,
139
Ill.
App.
3d
588,
487
N.E.2d
743
(2d
Dist.
1985).
Gallatin
points
out
that
Mr.
Michels
testified
that
the
September
1988
meeting
was
held
to
allow
him
to
raise
open
issues
to
Gallatin,
and
that
Gallatin
could
respond
in
whatever
manner
it
saw
fit.
(Tr.
60.)
Gallatin
further
maintains that
Mr.
Micriels
was
not
predisposed
in
favor
of
the
application.
Even
if
Mr.
Michels
was
predisposed,
Gallatin
contends
that
fact
would
be
irrelevant,
since
he
could
not
vote
for
or
against
the
application
because
he
was
not
a
member
of
the
Village
Board.
Gallatin
points
out
that
there
is
no
evidence
that
Mr.
Michels
or
any
other
employee
of
Daily
and
Associates
suggested
to
any
Village
Board
member
how
they
should
vote,
and
that
the
report
prepared
by
Mr.
Michels
states
that
the
Village
Board
must
weigh
the
evidence
itself.
This
Board
finds
that
the
Village
Board
was
not
predisposed
by
virtue
of
its
retention
of
Daily
and
Associates or by the
opinions
and
conclusions
expressed
by
Mr.
Michels.
The
Village
Board
is
indeed
entitled
to
hire
an
expert
to
assist
it
in
interpreting
the
technical
aspects
of
the
application
and
evidence
presented
at
hearing.
The
Board
does
not
believe
that
Mr.
Michels
was
predisposed
in
favor
of
Gallatin’s
application.
Mote
importantly,
the
Board
finds
no
evidence
that
the
Village
Board’s
decision
was
based
solely
upon
Mr.
Michels’
report;
thus,
it
is
irrelevant
whether
Mr.
I4ictiels
was
predisposed
for
or
against
the
application.
Three
Village
Board
members
testified
that
they
considered
Mr.
Michels’
report
along
with
all
evidence
and
written
comment
when
making
their
decision.
(Tr.
126,
138—
39,
164—65.)
Elected
officials
are
presumed
to
act
objectively,
and
FACT
has
provided
no
evidence
that
the
Village
Board
members
acted
otherwise.
The
September
1988
meeting between Mr. Michels
and
Gallatin’s
representatives
may
have
some
appearance
of
impropriety,
since
Mr.
r4ichels
was
retained
by
the
Village,
but
there
is
not
even
an
a4,legation
that
any
Village
Board
member
attended
that
meeting.~
There
is
no
evidence
that
the
Village
Board
relied
improperly
upon
Mr.
Michels’
report,
and
therefore
Mr.
£4ichels’
alleged
predisposition
is
not
relevant.
Quite
simply,
Mr.
Michels did not have
a vote.
FACT’s
final
claim
of
predisposition
is
an
argument
that
a
specific
Village
Board
member,
Doyal
Williams,
was
predisposed
to
grant
Gallatin’s
application.
At
the
April
11,
1989
hearing
on
this
petition
for
review,
Kent
Schleich,
a
member
of
FACT,
3The
record
before
this
Board
does
not
indicate
when
FACT
learned
of
the
September
1988
meeting,
and
thus
the
Board
does
nDt
know
whether
the
issue
should
have
been
raised
at
the
local
level.
100—24 3
—8—
testified that
in March
1988 Doyal Williams told him that he
(Mr.
Williams) was
in favor
of the landfill, that nothing would change
his mind,
and
that it was too late to change his mind.
(Tr. 190—
91.)
FACT asserts that Mr. Williams’ opinion was not his alone,
but was shared by others on the Village Board.
In response, Gallatin first argues that FACT waived any
predisposition claim regarding Mr. Williams when it failed
to
challenge him at the local siting hearings.
Gallatin notes that
the conversation between
Mr. Schleich and
Mr. Williams
is alleged
to have occurred
in March 1988,
and contends that since Schleich
was
an active FACT member,
any objection to Mr. Williams should
have been raised
at the local level.
Gallatin also maintains
that Mr. Schleich’s account of Mr. Williams’ statements does not
overcome the presumption that Mr. Williams was objective.
In
support, Gallatin Cites AR.F.
Landfill, 528 N.E.
2d
at 394, for
the proposition that the fact an official has taken
a public
position
or expressed strong views on an issue does not overcome
the presumption of
objectivity.
The Board finds that FACT waived any predisposition
challenge to Mr. Williams by failing
to raise
the issue at the
local
level.
Again,
there is much case law which establishes
that
is improper
to allow
a party to withhold
a claim of bias
until
it has received an unfavorable result.
E&E Hauling; A.R.F.
Landfill; Waste Management;
Citizens for
a Better Environment.
Mr. Schleich
is a member
of FACT,
and FACT either knew or should
have known of the statements attributed
to Mr. Williams by Mr.
Schleich before the local
siting hearings took place.
There was
no reason that
a challenge could
not have been raised
at the
local
level,
arid thus
the issue
is waived.
Impropriety In Decision—Making
FACT raises three claims of
impropriety
in the Village
Board’s decisionmaking process.
First,
FACT argues
that Village
Board members impermissibly considered ex parte contacts when
voting on Gallatin’s application.
At the Board heating on FACT’s
petition for review, FACT called several Village Board members as
witnesses.
Four Village Board members testified
to various
degrees of contacts outside the siting hearings,
such
as oral
comments from the general public, phone calls,
and receipt of
postcards from Gallatin.
(Tr.
72, 117—19,,
135—36, 158—59.)
There
is dispute,
however, whether some of
these contacts took
place during the time that Gallatin’s application was pending
(i.e.
between July 27,
1988 and January 9,
1989).
(Tr. 89.)
FACT contends that this testimony demonstrates that the Village
Board members did not consider themselves
to be acting in
a
quasi—judicial manner
rather than
in their
usual legislative
manner,
and cites this Board’s opinion in City of Rockford
v.
Winnebago County Board, PCB 87—92
(November
19, 1987).
FACT
maintains that by impermissibly considering these ex parte
100—244
—9—
contacts,
the
Village
Board
failed
to
limit
its
consideration
of
the
siting
application
to
the
record
developed
at hearing
and
to
written comments received during the comment period.
In response, Gallatin argues that although some Village
Board
members
may
have
had
contacts
regarding
the
landfill
after
the
application
was
filed,
there
is
no
evidence
that
the
contacts
had
any
prejudicial
effect
on
FACT.
Gallatin
cites
Waste
Management,
530
N.E.
2d
at
697—98,
for
the
proposition
that
the
complaining
party
must
show
prejudice
from
the
contacts.
Gallatin
also
maintains
that
FACT
has
failed
to
prove
that
the
contacts
constituted
an
irrevocable
taint
on
the
hearing
process.
E&E
Hauling;
City
of
Rockford.
The Board agrees with Gallatin that FACT has
not
shown
an
irrevocable
taint
caused
by
the
ex
parte
contacts
themselves.
The
testimony
of
the
Village
Board
members
did
not
establish
the
content
of
those
contacts,
or
who
made
the
contacts.
It
is
impossible
to
tell
from the record whether
the contacts were for
or against
the siting application,
and therefore
it
is impossible
to
find that FACT was prejudiced
by the contacts.
This
is
different
than
the
facts
in
City
of
Rockford,
where
the
record
before
this
Board
clearly
showed
that
ex parte contacts were
against
the
landfill,
and
thus
prejudicial
to
the
City
(the
applicant/petitioner
in
that
case).
The
Board
wholeheartedly
agrees
with
the
appellate
court
in
Waste
Management:
Ex
parte communications
from the public
to their
elected
representatives
are
perhaps
inevitable
given
a
county
Village
board
member’s
perceived
legislative
position,
albeit
in
these
circumstances,
they
act
in
an
adjudicative
role
as
well.
Thus,
although personal
ex
parte
communications
to
county
Village
board
members
in
their
adjudicative
role
are
improper,
there must
be
a
showing
that
the
complaining
party
suffered
prejudice
from
those
contacts.
530
N.E.2d
at
698.
It
is
not
enough
to
show
that
ex parte contacts occurred;
there
must
be
evidence that those contacts~rejudiced the complaining
party.
It
is
unrealistic
to
expect
a local official
to
be able
to
avoid
all
ex
parte
contacts,
although
such
an
attempt
must
be
made
in
good
faith.
Second,
FACT
contends
that
the
Village
Board
erroneously
relied
on
Mr.
Michels’
engineering
report,
which
contained
information
which
was
not
in
the
record
in
any
other
way.
FACT
maintains
that
Mr.
rlichels’
report
included
new
evidence
on
real
estate values
arid
the life
of mechanical equipment, among other
things,
and that
the report expanded the statutory limitations
on
the
siting
process.
FACT
states
that
several
Village
Board
100—245
—10—
members testified
that. they considered
Mr. Michels’
report
(Tr.
125—26).
FACT asserts that since
the Village Board’s decision
was
to be based only upon the six criteria and on the evidence in
the record,
it
is impermissible to allow Mr. Michels’
report
to
expand that scope.
In response, Gallatiri argues that Mr. Michels’
report and
all it~contents were made
a part of the record when the report
was submitted during the 30—day written public comment period.
Gallatin points out that the Village’s rules
for
the siting
procedure gave FACT seven days after the close of
the comment
period to respond
to the report and
all other public comment by
filing proposed findings of facts and recommendations
to the
Village Board,Abut that FACT submitted only an untimely objection
to the report.~*
Finally, Gallatin states
that the sta~Eements
challenged by FACT constitute
a very small component of the
report, and
that there
is no evidence that those challenged
statements had any impact on any Village Board member.
The Board finds no merit
in FACT’s claim.
All of the
information
in the report was made
a part of the record when
it
was filed
as
a public comment,
and thus the Village Board was
entitled
to consider all information.
The fact that the report
was done for and at the direction
of the Village Board does not
limit Mr. Michels’
ability
to discuss and consider all
information which he deemed relevant, when all that material was
made
a part
of the record
for decision.
As this Board has
previously noted,
the landfill siting process
includes
a 30—day
post—hearing public comment period without including
a
restriction of the scope of comments to discussion of information
already
in the record.
City
of Rockford, PCB 87—92,
p.
20
(November
19, 1987),
This provision does limit
the ability to
rebut all on—record information, but that
is how the statutory
scheme has been established.
See Section 39.2(c).
Indeed,
in
this case the village’s
rules gave FACT the opportunity
to
respond
to any public comment within seven days after
the close
of the comment period.
The fact that FACT did not do so in
a
timely manner does not render any of the information in the
report improper.
The entire report was submitted during the 30—
day comment period,
and
thus was properly part of
the record
for
decision.
Finally,
FACT argues that the Village Board
did not limit
its consideration of the application
to the six statutory
‘1As previously noted,
the Village Board denied FACT’s objection
to the report.
FACl~has not challenged
that denial.
FACT has
also not challenged the filing of the report on the last day
of
public comment,
although
it does comment upon the timing
of the
filing.
100—246
—11—
criteria, but also improperly considered economic benefit
to the
community.
FACT points to the testimony of three Village Board
members
that they considered economic
benefit
when voting
in
favor of
the siting application.
(Tr.
69,
138—39,
164.)
In
support
of its claim that this consideration of economic benefit
rendered the
Village Board’s decision fundamentally unfair,
FACT
again cites
this Board’s decision
in City of Rockford.
FACT
admits that
the Village Board members considered
the six
criteria,
but contends that the issue
is whether the application
was judged only on the six criteria.
Gallatin responds by pointing out that the Village Board
members testified
that they relied upon
the six criteria
in
reaching
their decision.
(Tr.
84,
116,
136—37,
163, 176.)
Gallatin contends that the Village Board members’
testimony
indicates that they carefully considered
the evidence.
Gallatin
also maintains that FACT’s questioning
at the Board hearing was
clearly improper because
it invaded the mind
of the decision
maker,
and therefore
those questions
should be stricken.
Ash
v.
Iroquois County Board, PCB 87—29, July 16,
1987.
Initially,
the Board need not decide whether
FACT’s
questions did impermissibly “cross
the line”
and
invade the mind
of the decisionmaker.
Neither Gallatin nor the Village objected
at the hearing when FACT asked the Village Board members
if they
had considered economic benefit,
and therefore tne claim
is
waived.
The Board
is particularly persuaded
that the claim
is
waived since Gallatin objected
to another question
at the Board
hearing on the grounds
that
it asked about
a Village Board
member’s mental processes.
(Tr.
75.)
The Board does find that Village Board members Linda
Downing,
Doyal Williams, and Daniel Root admitted that
they
considered the economic benefit
to the community when making
their
decision.
(Tr.
69, 138—39,
164,
177.)
However,
all three
of these Village Board members also specifically testified
that
they considered
the six statutory criteria,
and were able
to list
most
of
those criteria.
(Tr. 84—85,
136—37, 163—64,
176.)
Mr.
Root stated that “i)f
it didn’t meet the six criteria,
there
wasn’t any economic benefit so
it wasn’t even considered.
It had
to meet the six criteria.”
(Tr. 176.)
Section 39.2(a)
provides
that “local siting approval
shall
be granted only
if
the proposed
facility
meets
the
following
criteria.”
The
Board believes
that
the use
of the word “shall” means that approval must be granted
if
the
local
body
finds
that
the
applicable
statutory
criteria
are met.
In this case,
it
is clear that
a majority of
the
Fairview Village Board found that the six criteria had been
met.
Therefore,
it
is not grounds for
reversal
in this case
whether
they
also
considered
other
related
factors
in
addition
to
the statutory criteria.
This
case
is
different from the circumstances presented to
100—247
—12--
the Board
in City of Rockford.
City of Rockford involved the
disapproval of a siting application where
it was clear that the
local decisionmaker
(the Winnebago County Board) considered
things other than the statutory criteria.
It was impossible for
this Board to determine whether the disapproval was based upon a
finding that the criteria had not been met or upon consideration
of other
factors.
(This problem was highlighted by the fact that
most of the County Board members who testified at the Board
hearing could only name one or two of the six criteria.)
In a
disapproval,
the issue
is whether the local decisionmaker
considered factors other than the statutory criteria
in deciding
to disapprove
the application.
In
a case involving an approval,
however, such as the instant case,
the issue
is whether the
decision was based upon
a finding that all
of the applicable
statutory criteria have been met,
And
in this case, that has
been found by a majority of the Fairview Board Members.
STATUTORY CRITERIA
FACT does not contest
the Village Board’s finding that
criteria four
had been met
—
that the
facility
is located outside
the boundary
of the 100 year flood plain or
the site
is flood—
proofed.
FACT does challenge the village Board’s findings on the
other five applicable criteria of
Section 39.2.
Gallatin
contends
that
because
FACT
only
challenged
criteria
one,
two
and
five in its petition
to the Board for review,
FACT has waived
its
challenges
to criteria three
and six.
However,
a petition
for
review need not specify any
of the particular
issues raised by
the petitioner,
but must merely ask the Board
to hold a hearing
to contest the local decision.
Section 40.1(b)
of the Act.
Thus,
FACT properly raised its challenges
to the local decision
in its brief,
and the Board will address all five challenged
criteria.
Criterion
1
The first criterion to be considered
by the Village
Board
is
whether “the facility
is necessary
to accommodate
the needs
of
the area
it
is
intended to serve.”
FACT contends that this
criterion was not met, and maintains that:
(1) Gallatin failed
to provide any independent analysis of
the remaining capacity of
landfills
in the “local
region”
but relied solely on Illinois
Environmental
Protection
Agency
(Agency)
reports,
which
are
seriously flawed;
(2)
there
is no need for the proposed facility
in the
“local
region”; and
(3)
allowing Gallatin to
include
northeastern Illinois
in the service area,
although the Chicago
area
is distant from the proposed facility,
would effectively
abolish
the need criterion.
In reponse, Gallatin states that the testimony of Gallatin’s
witness on criterion one and the materials included
in the
application establish
that the proposed facility is necessary
to
100—248
—13—
serve
its
proposed
service
areas,
and
that
the
Village
Board
had
ample
evidence
on
which
to
base
its decision on criterion one.
Gallatin maintains that FACT’s allegations directly contradict
the
record or are not supported by the record.
Finally, Gallatin
points
out
that
FACT
makes
its
allegations
almost
totally
without
citation
to
the
record,
making
it
difficult
to
determine
if
the
assertions
are
supported
by
testimony
or
exhibits.
The Board
is
frustrated
by FACT’s failure
to provide
citations
for the large majority of “facts”
used by FACT
in its
argument on criterion one.
Because
of the lack
of citation,
it
appears
that FACT
is arguing
facts not
in the record.
The Board
will
ignore any factual claims
in FACT’s brief which
are not
supported
by citations.
The Board must also again point out that
the
standard
of
review
before
this
Board
is
whether
the
Village
Board’s decision was against
the manifest weight
of
the
evidence.
This
Board
does
not
decide
whether
the
facility
is
necessary.
The
Board
reviews
the
Village
Board’s
decision
that
this
criterion
was
met.
Therefore,
this
is
not an appropriate
place
to
argue
the
relative
merits
of
the
evidence
presented
to
the
Village
Board.
Based upon
a review of the record,
the Board finds that the
Village Board’s decision on criterion one was not against the
manifest weight
of the evidence.
As part
of its application,
Gallatin submitted
a report by Wayne P.
Pferdehirt
on the need
for the proposed facility.
(Application,
Exhibit
13).
Mr.
Pferdehirt
also
testified at the local hearings,
and specifically
stated
that the facility
is
necessary
to
accommodate
the
needs
of
the service
area.
(R. Vol.
III
at
6).
On the other hand,
FACT
did not present any direct testimony
on criterion
one.
This
Board finds
that the Village Board could have reasonably
concluded
that
the
proposed
facility
is
necessary
to
accommodate
the needs
of
the area
it
is intended
to serve.
The Board
also rejects FACT’s claim that allowing Gallatin
to include northeastern Illinois
in the proposed service area
would effectively abolish
the need
criterion.
FACT alleges that
a landfill applicant could always propose accepting
a small
amount
of
waste
from
large
urban
and industrial
areas
and thus
always establish
a need
for
the proposed facility.
FACT’s
argument misapprehends
the intent and the language of
the
statute.
Criterion one
is whether
“the facility
is necessary
to
accommodate
the
waste
needs
of
the
area
it
is
intended
to
serve.”
Section 39.2(a)(l)
of the Act.
Gallatin has defined
the
area
the
facility
is
intended
to
serve
as
Fulton
County
and
five
adjoining counties, plus six counties
in northeastern Illinois.
(R.
Vol.
III
at
6).
By finding that criterion one has been
satisfied,
the
Village
Board
has
accepted
Gallatin’s
proposed
service
area.
The landfill siting process
in Illinois
gives
local
governments the authority
to decide certain
issues
in that
process,
including
(at least by implication)
the area intended
to
100—249
—14—
be served.
The statute does not say
“local area”,
or make any
implication that the geographical area of service
is limited.
The Village Board has the power to determine if
a proposed
service area
is acceptable or unacceptable,
and the Village Board
made an affirmative decision on the issue.
This Board will not
disturb that decision.
Criterion
2
The second criterion which must be considered by the Village
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.
FACT maintains that Gallatin did not
meet its burden of showing that this criterion has been met.
FACT contends that the facility does not meet this criterion
because:
(1)
there
is no natural protection at the site;
and
(2)
Gallatin relies solely on engineered protection features which
would
fail,
resulting
in groundwater contamination.
Gallatin responds
by first pointing out that the Village
Board’s decision on the criteria must be upheld
unless
it
is
against the manifest weight of the evidence.
Gallatin contends
that
it provided testimony and documentation at hearing an in its
application which amply supports the Village Board’s
determination that criterion two was met.
Gallatin notes that
FACT also presented several witnesses on criterion two, but
maintains
that
the Village Board chose not
to rely on the
testimony of FACT’S witnesses.
Gallatin argues
that FACT’S
“expert” witnesses were neither experts nor conversant with the
details of Gallatin’s proposal.
Tne Board must
reject FACT’s claim on criterion two.
FACT
contends that Gallatin failed
to meet its burden of showing that
the
proposed
facility
satisfies
criterion
two.
It
is
true
that
at
the
local
level
the
applicant
bears
the
burden
of
proving
that
the criterf~are met by the facility.
However,
that
is not the
issue
before
this
Board.
As the Board has stated numerous
times,
the issue here
is whether the Village Board’s decision
is against
the manifest weight of the evidence
in the record.
The burden of
Proving that claim
is on FACT as the petitioner before this
Board.
FACT never really argues that the local decision on
Criterion two
is against the manifest weight of the evidence, and
never points out any reasons why the Village
Board’s finding was
erroneous.
Instead, FACT has
attempted
to retry the merits of
the evidence on criterion two before the Board.
That
is not the
Board’s function on a petition for review of
a local siting
decision.
Nevertheless,
the Board has reviewed the record and
finds
that the Village Board’s decision was not against
the manifest
weight of the evidence.
Gallatin presented four witnesses on
criterion two,
as well
as information contained
in exhibits,
the
100—250
—15—
application and
a four volume engineering report which
accompanied the application.
Douglas J. Hermann,
an engineer who
served as project manager
of the proposed facility for the firm
which
prepared
the
engineering
report,
specifically
testified
that
he
believed
that
criterion
two
was
satisfied.
(R.
Vol.
I
at
60—61).
FACT did present five witnesses who challenged many of
the conclusions made by Gallatin’s
witnesses.
However,
this
Board finds that the Village Board could have reasonably
concluded,
based
on the conflicting evidence before
it,
that the
proposed facility is designed,
located, and proposed
to be
operated
so as
to protect the public health,
safety, and
welfare.
Thus,
the Village Board’s decision must be
upheld.
Criterion
3
The third criterion of Section 39.2(a)
is whether the
facility
is located
so as
to minimize incompatability with the
character
of
the
surrounding
area
and
to
minimize
the
effect
on
the value of the surrounding property.
FACT argues
that the
record
shows
that
Gallatin
failed
to
meet
its
burden
of
proving
that the facility meets that criterion.
FACT cites
Waste
Management
of
Illinois
v.
Pollution
Control
Board,
123
Ill.
App.
3d
1075,
79
Ill.
Dec.
415, 463 N.E.2d
969
(2d Dist.
1984),
in
support
of
its statement
that an applicant must demonstrate that
it has done or will do what
is reasonably feasible to minimize
incompatability.
FACT contends that Gallatin’s evidence shows
only minimal efforts
to reduce incompatability,
and that
therefore
that
evidence
does
not justify
a conclusion that
criterion
three
has
been
satisfied.
FACT
also alleges
(without
citation)
that this proposed facility was conclusively
shown to
be wholly incompatible with the adjoining owner’s reasonable use
and enjoyment of their property.
In response, Gallatin maintains that FACT has not shown that
it was against the manifest weight of
the evidence for the
Village Board
to conclude that the facility satisfies criterion
three.
Gallatin points to the testimony of
its witness, William
A.
McCann,
and
to the information
in the application and
engineering
report, and contends that that evidence established
that Gallatin has taken
and will take steps
to minimize the
impact of
the facility on the surrounding area.
Gallatin also
notes
that
FACT
did
not
introduce any evidence on criterion
three.
Once again, FACT argues that Gallatin failed
to meet its
burden, when the proper inquiry before the Board
is whether
the
Village Board’s decision
is against
the manifest weight of the
evidence.
Based upon its review of the
record,
the Board finds
that
it. must affirm the Village Board’s decision.
Mr. McCann
testified that
he believed that the proposed facility has been
located
in
a manner which will minimize incompatability with the
character
of the surrounding area and will minimize the impact on
100—251
—16—
the value of other property
in the area.
(R. Vol.
II at 59-60).
Mr. McCann pointed
to the facts that the 80 acre landfill site
is
to be located within
a 995 acre facility, which itself
is located
within
a 2700 acre parcel owned by Gallatin,
that the area
is
rural
and largely agricultural
in use and characterized by
depleted, mined out land,
that except
for one residence within
a
half
a mile of the facility and one residence within
a mile, most
residences in
Fairvjec., itself are one and a half miles from the
site,
and
that there will be a 500—foot green area with berms.
(R.
Vol.
II
at 62—63,
70; Application, Exhibit 16.)
On the other
hand,
the Board has not found any evidence or testimony presented
by FACT which
rebuts Mr. McCann’s testimony.
There
is evidence
in
the record which supports the Village Board’s decision on
criterion three and thus that decision was not against the
manifest weight of the evidence.
Criterion five of Section 39.2 requires that the plan of
operations
for the facility
is designed to minimize the danger
to
the surrounding area from fire, spills, or other operational
accidents.
FACT asserts that Gallatin failed
to prove that this
criterion was met.
FACT contends that Gallatin provided
no plan
for handling of accidents,
spills of leachate,
or
fire.
In
response, Gallatin states that FACT bears the burden
of
establishing that the Village Board’s decision was against
the
manifest weight of the evidence.
Gallatiri contends that the
record amply supports the Village Board’s determination.
The Board
finds that the Village Board could have reasonably
concluded that criterion five has been satisfied.
The
engineering report submitted by Gallatin in conjunction with
its
applicatiOn contains
a Section addressing Criterion five.
The
report discusses
fire, Security,
spills,
and other accidents.
(engineering Report, Vol.
1, Section
6).
On
the other hand, FACT
introduced
no evidence on this criterion,
and FACT’s challenge
appears
to be based upon an alleged lack of detail
in
the plan.
FACT does not claim that Gallatin’s evidence was flawed or
unbelievable.
Based upon
a review of the record,
the Board finds
that the Village Board’s determination was not against the
manifest weight of the evidence.
Criterion
6
The final
criterion at issue
in this case is whether the
traffic
patterns to and
from the facility are
so designed
as
to
minimize
the impact on existing traffic flows.
FCT contends
that
the evidence pr’esented
by Gallatin on
this
issue was
inadequate, and thus Gallatin did not meet its burden of proof.
Ga1latj~ responds by arguing that
it introduced evidence which
more than showed
that
the traffic pattern minimized any adverse
impact
or~existing traffic.
E&E Hauling.
Gallatin also states
100—252
—17—
that FACT has the burden
of proving
that the
Village
Board’s
decision was against
the manifest weight
of the evidence.
Gallatin maintains
that FACT has not met that burden.
The
Board
finds
that
the
Village
Board’s decision that
criterion six has been satisfied was not against
the manifest
weight
of the evidence.
Gallatin presented
testimony from
Uatthew
C.
Sielski, who specifically stated
that he believed that
criterion
six was satisfied.
(R.
Vol.
II
at 83—84).
Mr. Sielski
also submitted
a traffic study report,
and concluded that traffic
accidents
are not expected
to increase and that the surrounding
roads could easily accommodate the expected
eight percent
increase
in daily
traffic.
(Application, Exhibit
18).
FACT did
not present any evidence
or testimony
on criterion six.
There
is
clearly sufficient evidence
in the record
to support the Village
Board’s decision.
ORDER
The January
9,
1989 decision of the Fairview Village Board
granting site location suitability approval to Gallatin National
Company
is hereby affirmed.
IT
IS SO ORDERED.
I,
Dorothy
M. Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certify
that the a~qveOpinion and Order was
adopted
on the .~.~‘~‘day
of
—r~~
,
1989,
by
a
vote
of
7—~
.
Dorothy
M.
,i4n,
Clerk
Illinois Poi’lution Control Board
100—253
