ILLINOIS POLLUTION CONTROL BOARD

May 25,

1989

WABASH AND LAWRENCE COUNTIES

)

TAXPAYERS AND WATER DRINKERS

)

ASSOCIATION,

Petitioner,

v.

)

PCB 88—110

THE

COUNTY

OF

WABASH

AND

K/C

)

RECLAMATION,

INC.,

an

Illinois

Corporation,

Respondents.

MR. STEVE SAWYER, ESO.,

STATE’S ATTORNEY OF WABASH COUNTY

APPEARED

ONI BEHALF OF

THE

WABASH

COUNTY

BOARD.

MR. RICHARD KLINE,

ESQ.,, WOODCOCK,

KLINE AND RAID, APPEARED ON

BEHALF

OF

MR.

AND

MRS.

KOMINICK.

MR. JOHN CLARK, ESO., APPEARED ON BEHALF OF THE WABASH AND

LAWRENCE COUNTIES TAXPAYERS AND WATER DRINKERS ASSOCIATION.

OPINION AND ORDER OF THE BOARD

(by M.

Nardulli):

This matter

comes before the Board

on the July

15,

1988

petition for appeal filed

on behalf

of the Wabash and Lawrence

Counties Taxpayers and Water Drinkers Association

(“Water

Drinkers”)

pursuant

to Section 40.1

of the Environmental

Protection Act

(“Act”).

The Water Drinkers appeal the June

29,

1988 decision of the Wabash County Board

of Commissioners

(“Commissioners”) supporting

an application for a new pollution

control facility which

has been filed

by K/C Reclamation,

Inc.

(“K/C”).

The proposed landfill

is to be sited

in V~abashCounty.

The Water Drinkers contend that the decision by the

Commissioners should be reversed for one or more of the following

reasons:

A.

A procedural violation of the Act

occurred.

13.

The hearing before the Commissioners was

fundamentally unfair.

C.

The decision of the Commissioners was

99—243

---

—2—

contrary

to the manifest weight of the

evidence.

Based

on the record before

it, the Board finds that the

County Board had proper jurisdiction and that the hearing below

was conducted

in

a fundamentally fair manner.

The Board

additionally finds that the decision of

the Commissioners

to

approve K/C’s application based

on K/C’s ability

to meet its

burden of proof on the statutorily—defined

criteria

is not

against the manifest weight of the evidence.

The decision of

the

Commissioners

is accordingly affirmed.

BACKGROUND

On January 12,

1987, K/C filed

an application for approval

of the site location for a new regional pollution control

facility.

In the application, K/C proposed

to design, construct,

operate and own a 45—acre solid waste landfill located on

a 172

acre parcel

of land

located

in northern Wabash County on the

Lawrence County border.

The proposed landfill

is intended to

serve Wabash and Lawrence Counties as well as parts of adjacent

counties.

The Commissioners held public hearings on May

11, May 18,

and May 27,

1987.

The Commissioners received numerous written

comments and petitions concerning the application.

On June 29,

July

1 and July 6,

1987,

the Commissioners met to deliberate and

vote on the application.

On July 1,

the Commissioners voted

to

approve

site location suitability,

and on July

6,

the

Commissioners adopted

a written decision which enunciated

the

conditions

of approval.

The Board held

a hearing on the 1987

application on October

2,

1987

on docket number PCB 87—122.

In

an opinion and order

of December

3,

1987,

the

Board

vacated

the decision of

the Commissioners on the basis that the

Commissioners did not have jurisdiction

to make a determination

concerning K/C’s application due to the applicant’s failure

to

comply with

the notice requirements

of Section 39.2(b)

of the

T~ct. Wabash and Lawrence Counties Taxpayers and Water Drinkers

Association and Kenneth Phillips

v. The County of Wabash and K/C

Reclamation,

Inc., PCB 87—122

(December

3,

1987).

K/C

refiled

its original application with

the Commissioners on January 20,

1988.

Public hearings ~were held on this matter on April

28,

April.

29 and May

9 of

1988.

On June 29,

1988,

the Commissioners

rendered

a decision which approved the siting

of K/C’s landfill

subject to certain conditions adopted

in the decision by the

Commissioners.

The Water Drinkers

filed

their appeal

to the

Board

and on October

28,

1988,

a hearing on the appeal was held

in Mt. Carmel, Wabash County.

Three witnesses testified

at the

Board’s hearing.

On December

2,

1988 the Water Drinkers

filed

a

99—244

---

—3—

post—hearing brief.

K/c

*~ledits hv:ef on December

27,

1988 and

the Commissioners filed t~rir brief

:.

December 28, 1988.

The

Water Drinkers filed

a r~ty brief

c

December

30, 1988.

JURISDICTT

Before the Board rev~~wsthe de~sionby the Commissioners,

the Board

needs

to detero

e

whether

:~eCommissioners had

jurisdiction to decide

si~

location

or

the proposed regional

pollution control facilit

Courts have held

th~

the notic

requirements of Section

39.2(b)

are jurisdiction~

Kane Co:

oy Defenders,

Inc.

v.

Pollution Control Board,

I

~9

Ill.

ArT

3d

588,

487 N.E.

2d 743

(2d Dist

1985), Brownir

r~rris Inc

ries, Inc

v

Illinois

Pollution Control Board,

5—86—021

_____

Ill.

App.

3d

_____,

N.E.

2d

______

(5th

1)1st,

2987).

Cc

~‘rnedBoone Citizens,

Inc.

V.

M.I.G,

Investments,

ir

144 Ill

pp.

3d 344, 494 N.E.

2d

180

(2d Dist.

1986);

The

llage of

I

:e

in the Hills

v. Laidlaw

Waste Systems, Inc.,

143

11. App.

3

285,

492 N.E.

2d

969

(1986);

See also McHenry

ointy Lan~f ~l, Inc.

v. Environmental

Protection Agency,

154

lI~

App.

3d :~ 506 N.E.

2d 372

(2d Dist.

1987).

(Although the Ser

1d Distric~found that the requirements

of Section 39.2(b) were ~ :isdictionT:

,

the Board’s own failure

to provide notice

in

accc

~ance with T~ction40.1 was not

jurisdictional under

the

rcumstanc

in this case).

Section

39.2(b) provides:

No later

th~

14 days p

or

to

a request

for locatior

:~pprova1,

applicant shall

cause writtc

notice of :ich request

to be

served eith”

in person

by registered

mail, retur~ :eceipt

re

~‘sted,on the

owners of

&

property

~thin the subject

area not

soi~y

owned

L

ohe applicant,

and on the

c

ers of

al

roperty within

250 feet

int

ch direct~ o

of the lot line

of the

subj’

property, raid owners being

such personr

: r

entitle.

which appear

from

the authentl

tax

recor:

of the County

in

which such

1

ility

is

be located.

Such writte’

~oticesh~T

also be served

upon memberr

~f the Ger~

nl Assembly from

the legislat~:e districT

in which

the

proposed

far

ity

is

b

red and shall

be

published

in

newspapeT

of

general

circulation

~blished

i

rhe County

in

which

the s~

:

is locat

Z~,

I.

Rev. Stat.

1987,

ch.

1111/2,

p~. 1039.2(b)

99—245

---

—4—

The Water Drinkers argue

that the notice requirement was

violated

in three

instances.

The first jurisdictional issue

involved property that was listed on the tax records

as owned by

“the John Trimble heirs”.

The heirs

of John Trimble are John

Trimble, Leo Knapp, Susie M.

Potts and Alice Steckler.

However,

only John Trimble was sent notice of the request for location

approval.

The petitioner maintains that the statute uses the

word “owners” to clearly indicate that

all of the owners of each

property must be notified

in order

for the county board

to have

jurisdiction and the failure

of K/C

to give notice to each of

John Trimble’s heirs means K/C has failed

to notify all owners of

property within 250

feet as required.

The Board does not accept

the petitioner’s argument.

The

Board

sees the phrase “owners being

such persons or entities

which appear from the authentic tax record

of

the County” as

being

the decisive language

in determining whether

“owners

of all

property” were properly notified under

39.2(b).

The meaning

of

this language

is clear.

The language gives

the applicant,

the

county board and the reviewing bodies

a clear

standard to

determine which parties must

be notified.

The “authentic tax

records of

the County”

include the names

or titles and addresses

of

the purported property owners.

If the applicant has sent

proper notice

to the owners listed on the tax records he has

complied with the requirements of

39.2(b).

In

the matter of the property owned

by the Trimble heirs,

the applicant had the notice of hearing sent to John Trimble, who

receives the tax statement (P.3

at

22)i,

at the address listed

in

the authentic tax records

of the County.

This notice complies

with the requirements

of

39.2(b),

even though all

of the heirs

were not sent personal notice,

because notice was given to the

“owners...which appear from the authentic tax records of the

County...”

as

required.

The

second

jurisdictional

argument

presented

by

the

petitioner involves property owned by Vernon Buchanan and his

wife.

Mr. Buchanan testified that

they did not receive notice

when

the application was refiled

in 1988

(R.3

at

9).

However,

Mr. Buchanan also testified that he was making payments

to First

National Bank

on

a contract

for deed at the time notice was

due.

He further testified that statements

for taxes from the

County were sent

to the First National Bank and that when he went

to the courthouse,

he discovered

that the County tax records

showed

the property

to be

in the care of First National Bank

(R.3

1.

For

this opinion,

the trar~scripts from the County

Board

meetings

of

April

28,

April

29

and

May

9

will

be

referred

to

as

“P.1”.

The transcripts from the County Board hearing

of June

28

and June 29 will be referred

to as “R.2”.

The transcripts

from

the hearing before

the Illinois Pollution Control Board on

October

28,

1988 will be

referred

to as

“P.3”.

Information from

the application will

be referred

to

as “App.”

99—246

---

—5—

at 10).

Because Mr. Buchanan’s name did not appear

on the

authentic

tax

records

of

the County at the time notice was

required,

the

applicant

was

not

required

to

notify

him

of

the

County Board hearing.

As

a result,

the Board finds no conflict

with

39.2(b)

in the matter.

The

final

jurisdictional

issue

raised

by

the

petitioners

involves the property owned

by Ernest Phillips

in Lawrence

County.

In

its post—hearing brief

the petitioner maintains that

Mr. Phillips was not

notified

of the County Board hearing.

In

support

of

this

argument

the

petitioner

notes

that

at the April

28,

1988 hearing,

the applicant entered into evidence

the

certified

mail

receipts

for those individuals who received notice

of the refiled application.

A receipt

for Mr. Phillips was not

included.

However,

at

the

hearings

before

the

Board,

the

petitioner has failed

to show that Mr. Phillips was listed as the

owner

of the property on the authentic tax record of the

County.

At the hearing before the Board,

the burden of proof

is

on the petitioner.

In

this

matter,

the

failure

of

the

petitioner

to show that Mr.

Phillips was due notice

of

the

hearing

results

in a failure

to carry

its burden of proof.

Consequently, the

Board cannot find

a violation of the notice requirement as to Mr.

Phillips or any other property owner.

Therefore,

the Board finds

that the Commissioners had jurisdiction to proceed with the

landfill citing hearings

in this application.

FUNDAMENTAL

FAIRNESS

The threshold issue the Board must evaluate

is whether the

procedures used by the Commissioners

in seeking

its decision were

fundamentally fair pursuant to Section 40.1 of the Act.

Ill. Rev.

Stat.

1987 ch.

ll11-/2par.

1040.1 requires that this

Board review the proceedings before the Commissioners

to assure

fundamental

fairness.

In E&E Hauling,

the first case construing

Section 40.1,

the Appellate Court

for the Second District

interpreted statutory “fundamental fairness” as requiring

application

of standards of adjudicative due process.

(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)).

A decisionmaker may

be

disqualified for bias or prejudice if

“a disinterested observer

might conclude that he, or

it, had

in some measure adjudged the

facts

as well

as the law of the case

in advance of hearing it”

(Id.,

451 N.E.

2d at 565).

It

is also important to note that

in

an analysis of bias or prejudgment elected officials are presumed

to

be objective and

to act without bias.

The Illinois Appellate

Court discussed this issue in Citizens for

a Better Environment

v.

Illinois Pollution Control Board,

152 Ill. App.

3d 105,

504

N.E.

2d 166

(1st Dist.

1987)

In addressing this

issue, we note that

it

99—247

---

—6—

is presumed that an administrative

official

is objective and “capable of

judging

a particular controversy fairly on

the basis of

its own circumstances.”

(United States

v. Morgan

(1941),

313 U.S.

409,

421, 85L.

Ed.

1429,

1435,

61

S. Ct.

999,

1004).

The mere fact that the

official has taken

a public position or

expressed strong views on the issues

involved does not serve

to overcome that

presumption.

(Hortonville Joint School

District No.

1

v. Hortonville Educational

Association

(1976),

426,

U.S.

482,

49 L.

Ed.

2d

1,

96

S.

Ct.

2308).

Nor

is

it

sufficient to

show that the official’s

alleged predisposition resulted from his

participation

in

earlier

proceedings

on

the matter

of dispute.

(Federal Trade’

Commission

v.

Cement

Institute

(1948),

33

U.S.

693,

92

L.

Ed.

1010,

68

S. Ct.

793).

504 N.E.2d at

171.

A decision must be reversed,

or

vacated and remanded, ~ihere

“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,

Inc.,

451 N.E.2d

at 571).

Finally,

adjudicatory due 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,

Id.,

451 N.E.2d

at

569).

The Water Drinkers contended that

the process

by which

the

Commissioners considered and ruled on K/C’s application was

fundamentally unfair

at only one point during

the proceeding.

The complaint was made by William Trimble during his testimony

before

the Board

on October

28,

1988

(P.3

at 13, 14).

Mr.

Trirnble maintained that the County Board built

a case

for the

landfill rather than considering the taxpayers who had signed

petitions and written letters

in opposition

to approving

(Id.)

the application.

Mr. Trimble also stated that some of the

testimony before the County

Board was rushed by the Commissioners

and some

of the witnesses

were biased

(P.3

16—18).

A review

of

the transcripts of

the hearings before the

County Board does not support Mr. Trimble’s contention.

The

County

Board held

a number

of hearings

at which anyone was

welcome to speak and present evidence.

The record does not

indicate that any person was prevented from testifying

or that

any testimony was rushed.

99—248

---

—7—

After the hearings were completed,

the Board announced when

the comment period would be

closed and when the County Board

would meet

to deliberate on the decision.

The deliberations were

also open to the public.

The transcripts

of the deliberation

indicates that the County Board considered numerous points

brought

out at the hearings.

The Board believes that Mr. Trimble’s allegations do not

overcome the presumption that the County acted on the merits

of

the application without prejudging the law or facts.

The record

indicates that on remand from this Board,

the Commissioners had

sufficient time to consider the record before it and that they

were properly instructed

to consider that record.

The Board,

therefore,

finds that the County reached

its decision on the

applicant’s landfill siting application

in

a fundamentally fair

manner.

REGULATORY CRITERIA

Section 39(c)

of the Act provides that

“rio

permit for the

development or construction of a new regional pollution control

facility may be granted by the

Environmental

Protection

Agency

unless the applicant submits proof to the Agency that the

location of said facility has been approved by the County Board

of the county

if

in an unincorporated area ~

in accord~ncewith

Section 39.2 of this Act.”

The six

applicable criteria

set

forth

in Section 39.2(c)

are,

in pertinent part:

(a)

The county board

***

shall approve the site location

suitability for such new regional pollution control

facility only

in accordance with the following criteria:

1.

The

facility

is

necessary

to

accomodate

the waste needs

of the area

it

is

intended

to serve;

2.

the facility

is

so designed, located and

proposed to be operated that the public

2.

Criterion #7, which applies

to facilities that will accept

hazardous

waste,

did

not

apply

in

the

instant

situation

since

K/C’s proposed facility would not accept hazardous waste.

Criterion #8 was added by P.A. 85—863 which became effective on

September

24, 1987.

This criterion concerns

“regulated recharge

areas” which

are yet

to be determined by the Board pursuant

to

Section 17.4 of the Act.

In addition, the Board notes

that

another criterion was

added by P.A.

85—945;

however,

that

provision which concerns solid waste management plans, did not

become effective until July

1,

1988

——

after

the application

review process of the Commissioners had been completed.

99—249

---

—8—

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 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

Eor 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 Commissioners’s decision.

Specifically,

this Board must

determine

whether

the

Commissioners’

decision

was

contrary

to

the

manifest weight

of the evidence.

E&E Hauling,

Inc.,

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.

IPC3,

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

County

Board

could have drawn different inferences and conclusions

from conflicting testimony or because

a reviewing court

(IPCF3

would have reached

a different conclusion

...

when

considering whether the 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.

Sternberg

v.

Petra, 139 Ill. App.

3d

503,

508

(1986).

Consequently, i~after

reviewing the record,

this Board

finds

that the Commissioners could have reasonably reached

their

conclusion,

the Commissioners’ decision must be affirmed.

That

a

different conclusion might also be reasonable

is insufficient;

the opposite conclusion must

be evident

(see Wilbowbrook Motel

v.

IPCB,

135

Ill. App.

3d 343,

481 N.E.

2d 1032

19851).

The Water

Drinkers maintain that the Commissioners’

99—250

---

—9—

conclusions as

to all

of the criteria under Section

39.2(a) are

against the manifest weight of the evidence presented at

the

hearings.

As

a result,

it maintains that the Commissioners’

decision should

be reversed and

the site location should

be

disapproved.

The Commissioners’ decision will

be reviewed with

respect

to each criteria individually.

Criterion

#1

Section 39.2(a)(l)

of the Act requires that the applicant

establish that “the facility

is necessary to accomodate the waste

needs of the area

it

is intended to serve”.

Relevant case law

from the Second District

Appellate Court provides guidance on the

applicable analysis of this criterion:

Although

a petitioner need not show absolute

necessity,

it must demonstrate an urgent need

for the new facility

as well as

the reasonable

convenience of establishing

a new or expanding

an existing landfill.

...

The petition must

show that the landfill

is reasonably

required

by the waste needs of the area,

including

consideration of

its waste production and

disposal capabilities.

Waste Management of Illinois,

Inc.

v. PCB,

175 Iii. App.

3d

1023,

530

N.E.

2d

682

(2nd Dist.

1988);

citing

Waste Management of Illinois,

Inc.

v. Pollution Control Board,

123 Ill.

App.

3d 1075,

463 N.E.

2d 969

(1984).

In support

of

its contention that the decision of the

Commissioners

is against the manifest weight

of the evidence, the

Water Drinkers argue

that there

are landfills in surrounding

counties accepting or willing to accept waste hauled

from Wabash

County.

The Water Drinkers point to the testimony of Gary

Simmons,

the operator

of

a landfill near Wabash County.

Mr.

Simmons says his landfill could handle

the waste from Wabash

County for ten years and that his landfill

is suitable for

expansion.

Mr. Simmons

testified that he had offered

a contract

to K/C

to accept Wabash County waste hauled by K/C

(T.2

at 182—

192).

The Water Drinkers also noted the fact that prior

to K/C

receiving

the contract for waste hauling

in Wabash County,

Dowty

Disposal collected Wabash County waste and disposed

of

it

in

a

landfill owned

by Dowty

in Lawrence County.

The petitioner also

cited evidence that there

is

a proposed landfill

in White County

that could also accommodate Wabash County waste as proof that

99—251

---

—10—

there

is not

a present need or

a reasonably foreseeable need for

a regional landfill to accommodate

the waste needs of Wabash

County.

As

a result, the petitioner contends that the

Commissioners’ decision is against the manifest weight of the

evidence

for the first criterion.

In its deliberations,

the County Board’s Mr. Effland stated

that

in this matter,

criterion one may be the most important

consideration (R.3 at

79).

Mr. Effland expressed an interest in

increased recycling but stated that it was not the total solution

at this time (P.3

at 79).

Further, Mr. Effland stated

that his

visits

to landfills

in the area allowed him to see how poorly

they were operated.

This information and the cost of disposing

of Wabash County’s waste convinced him that

a landfill was

necessary

(P.3

at

80).

Mr.

Dossett of

the County Board also

cited the poor operation

of the Lawrence County landfill as

a

reason why

a new landfill was needed

in the

region (R.3 at

82 and

83).

As

is the case with all of the statutory criteria,

the

burden of proof

is on the petitioner to show that the decision of

the County Board

is against the manifest weight

of the evidence

presented at hearing.

This burden is not carried lightly.

If, as

appears

to be the situation before us,

the County Board

finds

that a landfill

is required

in the region to ensure that the

county’s waste will be disposed of

in an environmentally sound

and cost efficient manner,

it is well within the County Board’s

power

under

39.2 of the Act

to do so.

The Commissioners

considered

a number of factors, in determining there was

a need

for

a landfill

in the area.

The information

in the record before

the Commissioners

is sufficient to support their finding that the

proposed

landfill

is necessary to accommodate the waste needs of

the area.

The petitioner has failed to show that this decision

was against the manifest weight of the evidence.

The Board

finds

that the petitioners have failed

to show that Commissioners’

decision

as

to the need for

the facility

is against the manifest

weight

of the evidence and consequently upholds the

Commissioners’ decision on Criterion

1.

Criterion #2

Section 39.2(a)(2)

of

the Act requires that the applicant

establish that “the facility

is so designed, located and proposed

to be operated so that the public health, safety and welfare will

be protected”.

Criterion

#2 encompasses, by

its nature,

a wide variety

of

location, design,

and operational

issues,

of varying nontechnical

and technical nature.

Among locational

issues

is the matter

of

whether the landfill

is proposed to be located at

a physically

suitable site,

in consideration of at least

local geology and

hydrogeology.

Design elements relate to protective features of

the landfill design, such

as

a landfill liner,

leachate system,

99—252

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—11—

groundwater monitoring system, and surface water control

system.

Also encompassed

in criterion

#2 are

a variety of

proposed operational elements, including type and frequency of

monitoring of

air, land,

and water,

daily operational plans and

closure and post—closure maintenance.

The issues addressed by the Water Drinkers under criterion

two included

the permeability of the site,

the design of

the

leachate collection system and the possible contamination

of

the

areas groundwater

and of Raccoon Creek.

The applicant presented

a report that included both field tests and laboratory tests

to

determine permeability

of the proposed site

(App.

Ex. A).

The

author of

the report,

Mr. Rauf Piskin,

a consulting

hydrogeologist,

testified at the hearing

on May 11,

1987 that the

land surface of the proposed landfill was covered by

a “bess”

with an underlying silt material.

Below the silt

is

a “till”

with

an underlying layer

of weathered bedrock.

Below

the bedrock

is

a bed of solid shale that

is at least 1000 feet thick.

Dr.

Piskin testified that laboratory tests performed on the shale

indicated

that

it

is

more

impermeable

than

required

by

Agency

standards.

In an effort to refute Dr. Piskiri’s report, the petitioner

had Dr.

Kirk Brown,

a Professor

of Soil Science,

at Texas A&M

University testify with respect to Dr. Piskin’s report and the

suitability of

the proposed site for use

as

a landfill.

Dr.

Brown testified that the laboratory tests relied on by Dr. Piskin

do not accurately simulate field conditions.

Dr. Brown noted

that the field test results indicated that the water

flow ratio

would

be 100 to 1000 times faster than the laboratory test

results had

indicated.

Dr. Brown stated that the field test

results

for

permeability

which

were

performed

at

the

Wabash

County location were much higher than the Agency’s standard.

Based

on those results alone,

Dr. Brown stated

that the proposed

location would not be acceptable.

Dr. Brown’s testimony as to

the accuracy of laboratory tests

for permeability was supported

by Dr. Yaron Sternberg,

a Professor

of Civil Engineering,

at

the

University

of Maryland who also was called to testify by the

Water Drinkers.

With respect to the leachate collection system, Dr. Piskin’s

report recommends that

a leachate collection system should be

installed to prevent development

of

a hydraulic head

in the

landfill and that the leachate level should

be monitored

(App.

Ex.

A, p.

54—55).

Dr. Brown disagreed with the reports

assessment

that the movement of leachate would not be

a problem

at the site.

Dr. Brown stated that

if the waste were to be

placed at the proposed location and at the depths suggested,

the

waste would be within

the normal water

table and would actually

be setting

in water once the system came to equilibrium.

Dr.

Brown testified that the applicant greatly underestimated the

rate at which leachate will migrate out of the proposed

location.

With respect

to abandoned oil wells on the proposed

location,

Dr. Brown testified that leachate can readily flow into

99—253

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—12—

a well,

escape and flow outward

and result

in the contamination

of drinking water.

Dr. Brown further testified that the proposed leachate

collection system was not properly designed and did not meet the

requirements of the Agency.

He doubted that there

is enough

slope

in the collection system to allow

the leachate to flow to

the proposed extraction wells.

On cross—examination,

David Beck,

who designed the leachate collection system, admitted

that no

calculation had been performed

to determine how much leachate

would be produced and that he had not prepared

a proposal

for

removing the

leachate from the location.

Dr. Sternberg testified that the application and design

failed to address the issues

of what volumes of leachate per unit

of time are to be removed from the landfill,

what

is going

to be

done with the leachate once

it

is collected or what effect

a

leachate collection system would have on groundwater

in the

immediate vicinity.

He testified that there was not enough

information

in the application to intelligently evaluate whether

the leachate collection system would be effective.

As

to

the issue of the effect

the landfill will have on the

areas drinking water and on Raccoon Creek,

the report prepared by

Dr. Piskin stated that all

of the drinking water wells

in the

area were deep wells.

He did not believe that the proposed

landfill would have an adverse effect on the deep wells or on the

public water supply wells

for the town of Allendale.

Dr. Piskin

also testified that he did not believe

the proposed landfill

would cause any health problems.

Dr. Brown disagreed with

Dr. Piskin’s report by noting the

presence

of abandoned oil wells on the property that could

transport leachate into the drinking water.

Both Dr. Brown and

Dr.

Sternberg

noted

the problen~sinherent with placing

a proposed

landfill within

a water table and the lack

of

significant amounts

of clay

at the proposed location.

Dr. Brown also noted

that two

of the borings performed on the site did not encounter shale,

even though

the application proposed using shale as

a base for

the landfill.

Dr. Brown further testified

that he did not think

it would

be possible

to recompact the soil at the site

to

sufficient permeability to act as

a base for the landfill.

Dr.

Brown testified that he believed that the discharge from the

proposed landfill would migrate towards

the Raccoon Creek.

Dr.

Sternberg stated that he would not under any circumstances site

a

landfill at the proposed location.

The Board

finds

that the Commissioner’s decision on

criterion

#2

is not against the manifest weight of the

evidence.

Given

the conflicting testimony presented,

it is not

against the manifest weight

of the evidence that the

Commissioners found

in favor

of the applicant.

The witnesses

presented different but viable views concerning the site

permeability,

leachate

collection

system

and

possibility

of

9—254

---

—13—

contamination.

The analysis of these criterion #2 factors

is

dispositive

and must be decided by the Commissioners.

The Board

finds that the Water Drinkers have failed to

show that the

decision

is against the manifest weight of the evidence.

Consequently, the Board upholds the Commissioners’ decision on

criterion #2.

Criterion

#3

Section 39.2(a)(3)

of

the Act requires that the applicant

establish that the proposed facility

is located so as to minimize

incompatibility with the surrounding area and to minimize the

effect on the value of the surrounding property.

Criterion #3

calls

for the facility to be located

so as

to “minimize”

incompatibility

——

but does not allow

for rejection simply

because there might be some reduction

in value.

ARF Landfill,

Inc.

v.

Lake County, PCB 87—51, Slip 0p.

10/1/87 at 24; citing

Watts Trucking Service,

Inc.

v. City of Rock

Island.

More is

required of an applicant than

a de minimus effort at minimizing

the facility’s

impact.

An applicant must demonstrate that

it has

done or

will do what

is reasonably feasible

to minimize

incompatibility.

Waste Management

of Illinois,

Inc.

v.

IPCB,

123

Ill. App.

3d 1075,

1090

(2nd

Dist.

1984).

Gordon Kirkman, the County Superintendent of

Highways

in

Wabash and Edwards Counties,

testified that the proposed location

was suitable for

a landfill.

The testimony

in opposition

to the

landfill under criterion #3 centered around the loss of property

value as

a result of contamination of the water supply for

surrounding property.

The opposition testimony was from the

owners

and residents of

the neighboring properties voicing

concern about

the potential

boss of value of the property.

No

testimony of experts

in property valuation was presented at

the

hearing.

In its review of this criterion,

the Commissioners correctly

noted

the plan must be designed to minimize the adverse

compatability.

Mr. Dossett stated that he did not know what else

could

be done

to minimize incompatahility.

Therefore,

the

Commissioners upheld

the application with regard to

the third

criterion (P.3

at 75).

The Board finds

that the Commissioners’

finding on criterion

#3

is not against the manifest weight of

the evidence.

There was

little testimony entered

at hearing concerning criterion #3.

However,

the testimony presented was sufficient to allow the

Commissioners

to review the requirement and determine that

compatability was considered and minimized.

Again,

the

petitioners have failed

to meet the burden of proving that the

Commissioners’ decision was against the manifest weight of the

evidence.

99—255

---

—14—

Criterion #4

The fourth criterion set forth

in Section 39.2 requires the

applicant to show that the facility

is

located outside the

boundary of the 100 year flood plain or

the site

is

flood

proofed.

In Tate,

et al

v. Macon County Board,

the Board held

that Section 39.2(a)(4) does not require the County Board

to

conclusively determine

the current boundary of

a flood plain.

Rather,

the Board

is required

to thoughtfully consider the issue

until

it

is

satisfied with the level of proof before

it.

Tate,

PCB 88—126,

Dec.

15,

1988 at

25.

In the application,

the applicants referred to the Flood

Insurance Rate Maps provided by the Illinois Department of

Transportation to show that no landfill activity will occur

in

the 100—year flood plain

(App.

at

3).

The petitioners agree

that

the

45 acres

that have been proposed

as the beginning landfill

site

is outside the 100—year flood plain.

However,

they argue

that part of

the 172 acre property on which

the landfill will be

developed

is within the flood plain.

They further note that the

movement of

leachate would be to areas within the 100—year flood

plain and could eventually result

in the contamination of the

Raccoon Creek.

In its deliberation,

the Commissioners noted

a letter

from

the Army Corps of Engineers stating that the site was not

in the

flood plain.

Commissioner Effland stated that based

on that

letter

arid other evidence the Commissioners were satisfied that

the site meets

the requirements of criterion #4.

The Board holds

that the petitioners have not met their burden of proving that

the decision of the Commissioners was against the manifest weight

of the evidence criterion #4.

Criterion

#5

For criterion

#5,

the Commissioners determined whether K/C

had proposed

a plan of operation which

is “designed to minimize

the danger

to the surrounding area from fire, spills or other

operational

accidents.”

The applicants maintain that because the

site will only accept general municipal waste

and because

of the

isolated location of the landfill the opportunity for operational

accidents will

be minimal

(App.

at

4).

In

its brief of December

2,

1988,

the Water Drinkers maintain that the application was

insufficient

to demonstrate that K/C

is prepared

to handle

dangers

of fires, spills or other accidents.

The petitioner also

noted that

a previous fire had occurred

at the site when

it was

being

operated

as

a

recycling

center

by

K/C.

It

maintains

that

this fire was

not properly controlled

and spread

to surrounding

corn fields before being extinguished.

At the hearing on April

28,

1988,

the Commissioners asked

a

number

of questions concerning

the planned operation

of the

proposed

landfill.

The Commissioners apparently were satisfied

99—256

---

—15—

that the applicants do have plans and that the plans appear to be

reasonably safe

(P.2

at

73).

Consequently, the Commissioners

ruled that the applicant had met the requirements of criterion

#5.

The Board,

in review of

the Commissioners’ decision, finds

that the petitioner has not been able to show that the decision

of the Commissioners was not against the manifest weight of the

evidence and the decision

is upheld for criterion #5.

Criterion

#6

For

criterion

#6,

the Commissioners determined whether the

applicant proposed

a plan

in which

“the traffic patterns

to or

from the facility are so designed

to minimize the impact on

existing traffic flows.”

The proposed site

is located

approximately three—quarter miles from Illinois Route

1 on

a

gravel road currently serving area residents,

farm activities and

oil

field maintenance vehicles.

The typical volume of vehicles

to the landfill will

be

in the range of ten vehicles per day

(App.

at

4).

At the prior hearings before

the Commissioners

there was testimony by the County Highway Superintendent that the

landfill would not impact on existing traffic flows.

The Water

Drinkers maintain that the application does not propose making

any improvements in the existing gravel

roads or establishing any

new access routes

to the proposed landfill.

Therefore,

it

maintains the traffic patterns are not designed

to minimize

impact on existing traffic flows.

The Commissioners reviewed this issue

at its June

29,

1988

meeting.

Commissioner Effland stated that he felt that the

traffic patterns

at the facility are designed

to minimize

impact.

Commissioner Dossett stated that he would give weight to

the Road District Commissioner and

to the County Superintendent

of Highways and would

agree that criterion six had been satisfied

(P.2

at

73).

Again,

the Water Drinkers have not shown that the

Commissioners’

decision was against the manifest weight

of the

evidence and the Board upholds the decision

of the Commissioners.

CORPORATE STANDING

The final argument advanced by the Water Drinkers

is that

K/C should not be granted

authority

to site

a regional pollution

control facility because the corporation has been designated

as

not

in good standing by the Secretary of State.

K/C failed

to

file

a annual

report and failed

to pay franchise taxes

for

1987

and as

a result was not

in good standing from December

1,

1987

until

it was dissolved

by Administrative Dissolution

in May

of

1988

(P.2

at

54).

The Water Drinkers maintain that because K/C

was dissolved by administrative dissolution during the

application approval process under

Ill. Rev. Stat., Chap.

32,

Section 12.40, K/C should not have

been allowed

to file the

application

for the landfill.

K/C says that once

it was aware

it

was delinquent

in paying

the franchise fee and annual

report it

99—257

---

—16—

acted diligently to correct the situation.

Further,

they

maintain that the K/C was not dissolved until after April 28,

1988.

The petitioner does not attempt

to argue that the

applicant’s status of “not in good standing” during the

application review period affects the Commissioners’

jurisdiction

or

the fundamental fairness of the hearings.

Instead,

it argues

that

it

is against public policy

to grant such an entity the

authority and responsibility associated with siting a regional

pollution control facility.

The Board

is not empowered to

review

the Commissioners’ decision on public policy issues that are not

elaborated by the Act.

Therefore,

the Board maintains

it

is not

required ~o address the issue of corporate standing

in this

opinion.

However, had the Board determined that it should make

a

finding on this issue,

it would have found

in favor

or the

applicant.

Ill. Rev.

Stat., Chapter

32, Section 12.40(c)

sets

forth

the

consequences of

a dissolution:

“12.40 Procedure for administrative

disolution.

(c) The administrative dissolution

of

a

corporation terminates

its corporate existence

and such

a dissolved corporation shall not

thereafter carry on any business, provided

however, that such

a dissolved corporation may

take all action authorized under Section 12.75

or necessary

to wind up and liquidate its

business and affairs under Section 12.30.”

In

this matter,

the corporation

had not been dissolved

by

the Secretary of

State by April 28, when the County Board

hearings were concluded.

K/C was listed

as “not

in good

standing” during part

of the application period, however, this

status would not prevent K/C from pursuing the application and

participating

at hearing before the Board.

In the alternative, Chapter

32, Section 17.45, which

involves reinstatement after administrative dissolution, states

in pertinent part:

(c) When

a dissolved corporation has complied

with

the

provisions of this Section,

the

Secretary of State shall

issue

a certificate

of reinstatement.

(d) Upon the issuance of the certificate of

reinstatement,

the corporate existence shall

be deemed to have continued without

99—258

---

—17—

interruption

from

the

date

of

the issuance of

the certificate of dissolution, and the

corporation shall

stand revived with such

powers, duties

and obligations

as

if

it had

not been dissolved;

and all acts and

proceedings of its officers, directors and

shareholders, acting

or purporting

to act as

such,

which would have been legal and valid

but for

such dissolution,

shall

stand ratified

and confirmed.

A certificate of reinstatement was issued

for K/C on June

14,

1988.

The final decision

of the Commissioners was made after

K/C’s corporate status was reinstated.

As

a result,

the actions

with respect

to the approval

of the application for

a landfill

would be ratified and confirmed

for any period during which

the

corporation was dissolved.

Having found that the Commissioners had jurisdiction, held

hearings

that were fundamentally fair and that the decision on

the criteria under

39.2 of

the Act was not against the manifest

weight of the evidence,

the Board must affirm the Commissioners’

decision to approve K/C’s application.

The Water Drinkers’

petition to reverse or remand the Commissioners’ decision is

denied.

ORDER

The June

29,

1988 decision of the Wabash County Board of

Commissioners granting site—suitability approval

to K/C

Reclamation, Inc.,

for

the applicant’s proposed landfill

is

hereby affirmed.

Section

41

of the Environmental Protection

Act,

Ill. Rev.

Stat.

1987

ch.

1111/2,

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.

IT IS SO ORDERED.

I, Dorothy M Gum, Clerk of the Illinois Pollution Control

Board, hereby certi~y~hatthe above Opinion and Order was

adopted on the

c~’t~’

~

day of

7i~

1989,

by a vote

of

7—c)

.

~

~7.

Dorothy M.(~unn,Clefk,

Illinois Pollution Control Board

99—259