ILLINOIS POLLUTION (X)NTPOL ~)A1O

Decenber

15,

1988

ROGER

TATE,

LYNETTE TATE,

)

BARBARA

KELLEY

AND

JOSEPH

KELLEY,

)

)

Petitioners,

)

V.

)

PCB

88—126

MACON CXJUNTI’ BDARD AND MACON

J~fl”f

LANDFILL,

CORPORATION,

)

Respondents.

)

THCX4AS L.

KILBRIDE,

KU)CKAIJ, MCCARTHY, ELLISON &

MAI~UIS,

P.C.

APPEARED ON

BEHALF

OF ~1EPETITIONERS;

TH~4ASH. M~X)DY,FIRST ASSISTANT

STATE’ S ATIORNEY, MACON COUNTY,

APPEARED

ON

BEHALF

OF

RESPONDENT

MACON

ODUNTI;

and

JON

D.

ROBINSON,

HULL,

CAMPBELL

&

ROBINSON, APPEARED

ON

BEHALF

OF

RESPONDENT

MACON

C(XJNTY

LANDFILL CORPORATION.

OPINION AND

ORDER

OF

THE

BOARD

(by J. Arx~erson):

This matter comes before the Board on a third party appeal

filed

pursuant

to Section 40.1(b) of the Act on August 15,

1988,

I,.j

Roger Tate, Lynette Tate,

Barbara

Kelley

and

Joseph Kelley (Objectors).

The Objectors contest the site

location

suitability approval

granted July 6, 1988 pursuant to Section 39.2 of

the

Act

by

the

Macon

County

Board

(County

Board)

to

Macon

County

Landfill

Corporation

(MCL).

Hearing

in

this

Board’s

docket

was

held

on

October

19,

1988.

The

Objectors

brief

was

filed

on

Noventer

1,

1988,

and

both

the

County

and

MCL

filed

briefs

on

Noveither

9,

Procedural

History

It

should

be

noted

here

that

the

County

ad~tedno

special

filing

or

other

procedures

for

its

SB172

proceeding.*

The

only

procedures

articulated

were

articulated

by

the

CclTunittee

and

related

only

to

the

hearings.

At

its

March

23,

1988

Conrnittee

n~eting, rules

of

procedure,

generally

those

of

the

County

Board

and

Robert’s

Rules,

were ad~ted.

(C—l22,126).

At

hearing, the hearing officer, Mr. Orville

Kahn,

sinply

gave

the

order

of

*

The term “S8172”

refers

into law

in 1981

(P.A.

82—682, effective Nov.

12,

1981)

initiated the siting process

facilities;

the term is

a commonly used “shorthand” reference.

94—75

---

—2—

testimony

as

follows:

County

Board,

applicant

witnesses,

neighborhood

o~,osition,invited

experts

and

staff,

general

audience,

applicant

rebuttal,

neighborhood

rebuttal,

and

general

audience

rebuttal.

Everyone could

cross-

examine.

(I.

37—39).

The

actual

order

of

testimony

was

more

flexible.

For

example,

Decatur’s

Mayor

testified

prior

to

the

applicant’s

witnesses,

and

the

last

day of

hearing,

June

2,

1988,

was

held

primarily

to

acconi~odatean

Objectors’

(Petitioners’)

withess

who

could

not

attend

earlier.

The

record

also

indicates

that

there

was

no

general

public

testimony;

the

neighborhood

c~position testified

at

the

behest

of

Objectors’

counsel.

There

is

nothing

in

the

Act

requiring

the

County

Board

to

establish

specific

procedures,

although

the

courts

have

upheld

the

County’s

right

to

do

so.

Waste

Management

of

Illinois,

Inc.

v.

The

Pollution

Control

Board

et al.,

(2d

Dist.

1988),

No.2—88—0212.

The Board

also

notes

that

the

last

sentence

of

Section 39.2(d) provides

that:

“The public hearing shall develop a record

sufficient

to

form

the

basis

of

appeal

of

the

decision

in

accordance

with

Section

40.1

of the Act.”

Since the

County

adopted no special

filing

requirements,

the

Board

will

look

to

the

statute

for

guidance.

The

58172

proceeding

was

initiated

when

MCI

filed an

amanded petition

with the

County

on January 15, 1988.

The petition

essentially

requests

permission

to

accept

non—hazardous

special

wastes

and

to

increase

the

design

height

of

the

landfill.

A

Landfill

Siting

Co~tmittee(Committee),

cc*nposed

of

seven

County

Board

menters,

held

seven

hearings

in

1988,

on April

21,

April

27,

May

5,

May

12,

May

18,

May

19,

and

June

2,

l988.*

The Comittee also took a formal

40

minute

tour

of the

MCL

site

on

May

24,

1988,

accompanied

by

the

Operator,

Paul

McKinney,

and

one

of

the

Objectors, Roger Tate.

(C—239)

Final arguments were presented on the last hearing day, June 2, 1988.

The

Coninittee further

met

on June 9,

1988

(C—245--246), June 16,

1988 (C—248—

249), June 23, 1988 (C—250—257, June 30, 1988 (C—259--268, and July 6, 1988 (C—

271—278).

The minutes of the meetings were detailed

and

often appear to be

almost

verbatim.

On July 6, 1988,

the

Cc~xnnittee

voted

unanimously

to

recoitm~endapproval

with

five

nuntered

conditions

and

one

narrative

condition

(12

nurrbered

conditions

were

considered).

•~The

transcripts

for

each

hearing

day

restarted at p.

1;

therefore,

references

to the seven hearing days will

be

designated as roman numerals I—VII followed by the page number,

e.g.

iV—25.

County exhibits will be designated as County

Ex.

_____;

Applicants Exhibits will be designated as Pet.

Ex.

____

Objectors’ exhibits will

be designated as Obj.

Ex.

___.

Also,

the 297 page “Macon County Board Site Hearing and Index” file

pages will be designated

as C—l through C—297,

as appropriate.

These files were part of the public recotd.

The County also

submitted an unbound miscellaneous file that appears

to be

included

in the C—l through C—297

file;

this

file will not

be

referenced.

94—76

---

—3—

On July

12,

1988,

the

County Board, by

resolution,

concurred

in

total

with

the

Committee’ s

recommendation

that

MCI

be

permitted

to

accept

special

non—hazardous waste and

to

increase

the

design

height

of

the

landfill

40

feet,

subject

to

the

following

conditions:

1) an

increase

in

the

rwrber

(from

3

to

9)

and

depth

of

the

monitoring

wells,

2)

a

10

foot

clay

liner

compacted

to

“a

10

to

the

minus

7”

(C—29l),

noting

that

the

present

site

has

no

liner,

3)

pipeline

relocation

and

vacation

of present

easement,

4)

r~val

of

existing

pipeline,

and

5)

the

entire

landfill

area

be

out

of

the

flood

plain

or

be

flood

proofed.

The County

Board

resolution

also

contained

a

narrative

Committee

recommendation

that

MCI

be

required

“to

develop

and

sutinit

to

the

Macon County

Board

for

review,

a

ten year

plan

for

waste

disposal,

including

a

plan

for

alternatives

to

landfill

use

and

they

be

required

to

update

this

plan every

two

(2)

years”

(C—292).

As

the

resolution

is

drafted,

this

narrative

recommendation also

appears

to

be

a

condition.

Background

clarification

MCI had originally petitioned

for site location approval on NoveTrber

9,

1987 (C—27).

The

amended

petition on January 15, 1988 essentially altered the

original petition only insofar as reducing the acreage requested from 42 acres

to

25

acres.

The

amended

petition,

excluding

the

legal

description

and

notices,

is

only

three

pages

long.

It

requests

an

“extension

of

its

existing

landfill”,

makes

brief

affirmative

assertions

regarding

each

of

the

six

statutory

siting

criteria*,

and

asserts

that

because

it

has

filed

no

request

or

related

documents with

the

Illinois

Environmental

Protection

Agency

(Agency),

regarding

the

application,

no

other

documents

are

sutinitted.

(C—68—

70)

The

facility

extension

in

question

encat~asseswhat

is

called

Sites

No.

3

and

4

(Site

4

is

only 2

acres).

Immediately

to

the

east

of Site

3

is

an

existing

active

landfill

operation

of

25

acres

called

Site

No.

2.

Site

No.

2

has

been

in

operation

since

1971

and

is

permitted

to

take

general

and

special

waste.

Further

east,

on

the

other

side

of

Site

No.

2

is

a

closed

20

acre

facility, Site

No.

1,

originally

opened

in 1960.

Throughout the record these

Site

nurrbers

are

also

referred

to

as

“phase”

or

“area”

nurrbers

(e.g.

C—233).

*

At

the

time

of

the

amended

filing,

the

criteria

in

Section

39.2

of

the

Environmental

Protection

Act

had

been

amended

to

remove

the

Department

of

Transportation’s

role

in

Criterion

4.

Also,

Criterion

7

was

inapplicable,

since

it

affected

only

hazardous

waste.

Finally,

Criterion

8

regarding

recharge

areas

was

inapplicable

since

it

requires

Board

specification

which

has

not

yet

occurred.

The

Board

also

notes

that

what

is

now

Criterion

9,

was

effective

July

1,

1988,

and

thus

became

effective

after

the

hearings but before the County Board decision.

Criterion

9

refers

to

a county board

solid waste management plan, which Macon

County

does

not

have,

so

even

if

construed

as

applicable,

Criterion

9

would

not

apply

in

this

case.

94—77

---

—4—

To

the

west

of

Sites

3

and

4

is

about

30

acrea

of

undeveloped

pasture

land owned by MCI.

To

the

north across

Bill

Road,

are

homes.

To

the

south

is

the

Sanganon

River

and

to

the

east

of

Site

No.

1,

across

the

interstate,

are

the

sludge

pits

of

the

Decatur Sanitary

District.

Some

initial

confusion occurred as

to

what constituted

a

new

regional

pollution control facility at the MCI site.

In 1977, 1978 and 1979, MCI had

applied

for,

and

received,

development

permits and

supplemental development

permits

for

Sites

3

and

4

(See Pet.

Ex.

10—16).

These

development

permits

allow

disposal

only of

general

waste,

not

special

waste

and

limit

the

height

of

the

landfill

to

40

feet

below

what

is

requested

in

the

SB172

application.

Less

than

a

month after

filing

the

amended

application,

on

February

9,

1988,

MCI notified

the

County

Board

that

it

had

discovered

that

SB172

had

a

“grandfather

clause”

that

exempted

from

the

SB172

process

those

facilities

which

earlier

had

been

issued

development

permits.

(C_77).*

The

letter

then

states that MCL is “only

requesting

approval

to

fill

the

unpermitted

area with

non—hazardous

special

waste

and/or

liquid

waste,

and

to

increase

the

permitted

elevation of this site so as to

be

the

same as

the

adjoining

landfill”

(C—78;

see

also Sec. 3.32(b)

and

(c) of the Act).

The letter stated that it

hoped

to

proceed

on

the

existing

Amended

Petition.

There is

no

indication

in

the

record

that

this

post—filing

clarification

of

the

scope

of

the County’s

authority

~

se was

challenged.

Jurisdictional

issues

Objectors

raised

an

issue

of

jurisdiction

both

at

the

County

hearings

concerning

MCL’s

Pet.

Exhibits

10—16,

and

also

before

this

Board,

except

that

only Pet.

Exhibits

10,

11,

13

and

15,

were

challenged

before

the

Board.

The

issue

raised

by

the Objectors

concerns

the

proper

construction

of

the

language

of

Section

39.2(c)

of

the

Act.

The

first

paragraph

of

Section

39.2(c)

states

the

requirements

for

filing

of

a

siting

request

as

follows:

c.

An

applicant

shall

file

a

copy

of

its

request,

accompanied

by

all

documents

sutinitted

as

of

that

date

to

the

Agency

in

connection

with

its

application

except

trade

secrets

as

determined

under

Section

7.1

of

this

Act,

with

the

county

board

of

the

county of

the

governing

body

of

the

municipality

in

which

the

proposed

site

is

located.

Such

copy

shall

be

made

available

for

public

inspection

at

the

office

of

the

county

board

or

the

governing

body

of

the

municipality

and

may

be

copied

upon

payment

of

the

actual

cost

of

reproduction.

*

The

applicable

language

in Section 3.32 of the Act defines

a

new

regional

pollution

control

facility

as

“initially

permitted

for

development

or

construction

after

July

1,

1981.”

94—78

---

—5—

It

is

agreed that MCI did

not

at

any

time

suti~iitany

documents to

the

Agency

regarding

the

height

increase

or

special

wastes.

Citing

the

Fifth

District

Appellate Court’s Opinion in Daubs Landfill, Inc.

v. Illinois

Pollution

Control

Board,

166

Ill.

App.

3rd

778,

520

N.E.2d

977,

(1988)

and

other

cases,

objectors contend that,

insofar as

MCI

did

not

file

its

Sept~ther

23,

1977

permit

application

and

other

materials

submitted

to

the

Agency

in

1977—1979,

relative

to

the

existing

landfill

operations with its siting, the

siting request

is

fatally

defective

and

thus

failed

to vest

jurisdiction

in

the

Macon County Board.

Objectors

note

that

Mcl’s

witness,

Gregory

D.

Kugler,

acknowledged

that

there

was

a

“connection”

between its

present

siting

application and the materials previously filed with the Agency

(III

29;

Objector’s Br., p.

9).

MCI concedes there

is such a “connection”

but asserts

that

these

previously

filed

documents

were

not

submitted

“in

connection with”

its

siting

application;

MCI

notes

that

there

was

no

such

thing

as

a

location

approval

requirement

at

the

time

the

materials

were

submitted

to

the

Agency.

(MCLBr., pp.

3—4).

The Board

is

not

persuaded

that

Section

39.2(c)

mandates

the

result

that

Objectors

insist

upon.

Clearly,

the

requirements

of

Section

39.2

relative

to

filing are jurisdictional, as Daubs and a

host

of

cases

decided

to

date

by

the

courts

make

clear.

As such,

these requirements

are,

as

the

Objector

suggests,

strictly construed; “substantial compliance” is not sufficient to

confer

jurisdiction,

Daubs

at

978.

Viewed

in

this

context,

it

is clear to the Board

that

Objectors’

interpretation

of

the

Act

would require something other

than

a

strict

or

literal

construction.

The

statutory

language

requires

only

that

the

siting

request

be

accompanied

by

all

documents

submitted

to

the

Agency

“in

connection

with

its

application”

(emphasis

added).

No

other

such

documents

have

been

filed

with

the

Agency

in

connection

with

MCL’s

siting

application.

The Board therefore finds that the filing was not defective.

The Board notes

that it has previously held,

in an analogous situation, that an abbreviated

siting application (one without technical supporting documents)

is acceptable

where,

as

here,

such materials

were

available

prior

to

the

close

of

the

hearing

process.

Town of

St.

Charles

v.

Kane County

Board

and

Elgin

Sanitary

District,

PcB

83—228,

229,

230

consolidated,

57

PcB

203,

204

(March

21,

1984),

vacated

on other

grounds

sub

nom.

Kane

County

Defenders

v.

PCB

et

al,

129

Ill. App. 3d 121,

472,

N.E.

2d

150

(3rd

Dist.

1984).

The Board’s construction is further buttressed

by

a

recent

amendment

to

that

same

language.

P.A.

85—945,

effective

July

1,

1988,

amends Section

3~.2(c) in

pertinent

part

as

follows:

“The

request

shall

include

1)

the

substance

of

the

applicant’s

proposal

and

2)

all

documents,

if

any,

submitted

as

of

that

date

to

the

Agency

pertaining

to

the

proposed

facility”

...

(emphasis

added).

The Board also notes that the Objectors’ attorney, when requesting the

technical data at the first hearing, asserted that after the above amendment

becomes

effective

on

July

1,

1988,

information

such

as

that

requested

would

be

required

with

any siting application, acknowledging that at the present time

the

County

Board

possessed

an

implied

power to require such information

based

94—79

---

—6—

on

fundamental

fairness

principles.

No mention

was made

of

jurisdiction

at

that

time.

(1.157).

The Objectors

present

another

alternative

argument

regarding

the

exhibits.

The

Objectors

argue,

alternatively,

that,

if

the

Board

rules

that

the

issue

is

not

jurisdictional,

the Board

should

strike

the

MCI’ s

Exhibits

10—16

as

irrelevant

if

it

finds

no connection

between

the

prior

Agency

filings

and

this

proceeding.

The

Board

does

not

find

that

there

is

no

connection

between

MCL’s

Exhibits

10—16

and

this

proceeding.

The Board

sees

no

reason

to

reverse

the

hearing

officer’s

refusal

to dismiss

the exhibits

on

relevancy

grounds.

The

Board

finds

only

that

the

documents did

not

have

to

be

filed

with

the

petition,

as

a matter

of

jurisdiction.

Objectors’

second

argument

as

to

jurisdiction

relates to the giving of

public

notice.

It

appears

to

be

based

upon

two

alleged

failures.

First,

Objectors’

counsel

asserted

that

it

is

“not

totally

clear”

that

MCL

issued

all

the

notices to surrounding property owners as required by Section 39.2(b) of

the Act (R.l3).

There was an apparent problem in locating the certificates of

publication of notice with regards to MCL’s

amended petition

(R.27).

Since

there were no further arguments on this point

in Objectors’ closing brief, and

since the record on its face discloses no such obvious defects, the Board

assumes

that

this

matter

has

been clarified

to

Objectors’

satisfaction.

The

next

alleged

failure

in

notice

asserted

by

Objectors

is

the County’s

“failure”

to

publish

a

notice

of

public

hearing

for

the

second

of

the

seven

days

of

hearing

in

this

proceeding,

April

27,

1988.

Objectors

cite

this

Board’s

opinion

in

Clutts

and

Siegfried

v

Beasley,

et

a?.,

PCB

87—49,

(August

8,

1987)

to

the

effect

that

the

notice

requirements

of

Section

39.2

are

essential

to

ensuring

that

the

affected

public

can

prepare

for

the

public

hearing.

Further,

they

assert

that,

consistent

with

this

Board’s

opinion

in

Guerrettaz

v.

Jasper

County,

PCB

87—76,

(January

21,

1988)

defects

in

notice

deprive

a

county

board

of

jurisdiction

“no

matter

how

slight

the

deviation

and

without

weighing

any

prejudice

caused

by

the

notice”.

This

being

so,

Objectors

argue

that

the

County

thus

lacked

jurisdiction

to

receive

evidence

on

that

day;

further,

they

suggest

that, to the

extent

that

this

second

hearing

included

the

“bulk”

of

MCL’s

evidence

on

criteria

one,

three,

five

and

six

(of

Section

39.2(a)),

the

County’s

decision

as

to

these

four

criteria

is

without

support

in

the

record

and

is

therefore

against

the manifest

weight

of

the

evidence

(Objectors’

Br.

at

12).

MCI

counters

that

the

only

public

notice

required

was

that

given

by

the

County before

the first hearing. MCL

argues

that “the only error made by the

Macon

County

Board was that it republished

notice of several of the subsequent sessions even though the initial hearing

was merely adjourned from

time

to time”

(MCL’S Br., pp.

6—7).

No party

asserts that it did not have actual notice of the second session,

and

it is

clear from the transcript

(R.II) that Objectors

participated

fully

in

that

session.

The record contains evidence that the first hearing was noticed and,

indeed, all other hearings, except for the April 27, 1988 hearing, were

noticed,

albeit

with

short

time

frames,

in

a

newspaper

published

daily.

(C—

94—80

---

—7—

142,

185,

228,

232,

238,

244).

Section

39.2(d)

of

the

statute

requires

that

at

least

one

public

hearing

be

held

and

that

it

be

noticed.

On

April

21

and

at

all

subsequent

hearings,

the

hearing

was

contiru.ied

and

the

next

hearing

date

was

entered

into

the

record.

Seven hearings

were

held

between April

21

and

June

2,

1988.

County

Board

decision

was

due July

12,

1988,

and

the

Coninittee

spent

the

weeks

between June

2

and

July

6

discussing

in

open meeting

(also

noticed)

the proposal

and

preparing

a

recatmendation.

The

Board

finds

that

in

this

closely

scheduled

proceeding

no

notices

were

required

after

the

first

notice

was

published.

To

construe

the

statute,

with

its

tight

time

frames,

as

requiring

separate

notice

of

each hearing

day, would

be

totally

unrealistic,

even

when

there

is

a

delay

newspaper;

the

nunber

of

hearing

days

available

would

surely

be

lessened.

The Board

itself

does

not

and

cannot

notice

every

hearing

day

contirued

on

the

record

in

proceedings

where

they

occur

in

close

sequence.

The Board

also

notes

that

at

the first

few hearings

the hearing

officer

specifically

inguired

if anyone was there who had not been

at a prior hearing; no one so indicated.

The Objectors were quite aware of

the hearing and participated fully.

The record contains nothing about anyone

being confused as to

when

the hearing

days were.

The Board

finds

that

this

jurisdictional

argument

is

without

merit

and,

indeed, compliments the Conmittee on its extra notice efforts concerning its

meetings before, during, and after the hearings.

Objectors’ third argument as to jurisdiction was first raised in the

closing brief

(pp. 2,8—10).

Objectors assert that,

insofar as the siting

application

fails

to

accurately

describe

the

location

of

the site with respect

to

the

flood

plain

criterion

(Section

39.2(a)

(4)

of

the Act),

the

application

fails the jurisdictional requirements of Section 39.2(b)

of

the

Act.

Objectors

point

to

correspondence

from

MCI) s

attorney

to

the

County

Board’s

chairman

(C—77)

conceding

that

the

description

of

the site

in

MCL’s

Exhibit

4

(C—69)

as

being

located

outside

the

100—year

flood plain

may

not

be

accurate.

Citing

McHenry

County

Landfill,

Inc.

v.

Illinois

Environmental

Protection

Agency 154 Ill. App. 3d 89; 506 N.E.2d 372, (2nd Dist. 1987) Kane

County

Defenders,

Inc.

v.

Pollution

Control

Board

139

Ill.App.

3d

588,

487

N.E.

2d

743,

(2nd

Dist.

1985)

and

Concerned

Boone

Citizens,

Inc.

v.

M.I.G.

Investments,

Inc.,

144

Ill.

App.

3d

334,

494,

N.E.2d

180

(2nd

Dist.

1986)

to

the effect that the

purpose

of

the

14—day

notice

under

Section

39.2(b)

is

to

encourage

comment

by

the public

(a point

not

contested

by

MCI),

Objectors

argue

that

MCL’s

failure

to

describe

accurately

the

proposed

location

of

the

site

is

a

“qualitative”

jurisdictional

failure

no

less

important

than would be

a

failure

to

satisfy

the

“quantitative”

jurisdictional

requirement

of

a

14—day

notice.

MCI,

citing

Daubs,

suggests

that

“practicality

and

reasonableness”

considerations

do

not

support

Objectors’

position,

insofar

as

the legal

and

narrative

descriptions

of

the

proposed

location

supplied

in

the

application

were

accurate.

In

any

event,

MCI

observes,

“there

is

no

requirement

in

Section

39.2(b)

that

the written

notice

specify

anything

as

to

the

site

location

with

reference

to

the 100-year flood plain”

(Mcl’s Br., pp.

5—6).

Again,

the Board agrees that statutory provisions governing jurisdiction

shall be strictly construed.

However, the Board finds that Objectors’

argument

fails

to

meet

the

test

of

such

strict

construction.

Section

39.2(b)

requires

only

that

notice

shall

provide

“the

location

of

the

proposed site”

94—81

---

—8—

(emphasis

added).

No mention

of

flood

plains

is

made

in

this

subsection

and

no

such

mention

can be fabricated

by

this

Board.

The Objectors

assert

that

the

Mcl’s

Exhibit

4

described

the

location

of

the

extension

as

located

outside

the

flood

plain.

Exhibit

4

gives

a

narrative

and

legal

description

of

the

location;

there

is

no

language

concerning

the

flood

plain.

The

Objectors

also

cited

C—69,

a

page of

MCL’s

amended

application.

The

Board

notes

that

the

amended application

refers

to

a

Department

of

Transportation

determination,

which

has

been

deleted

from

the

statute.

The Objectors fail to

say

what

connection

this

page

has

to

its

notice

arguments.

The

Objectors

also

point

to

MCL’s

February

9,

1988,

letter

to

the

County

to argue alternatively,

that the Applicant’s evidence should not be construed

as

satisfying

any

flood proofing

criteria.

The

problems

concerning

which

of

the

various

and

conflicting

maps

accurately

delineate

the

flood

plain

was

a

matter

thoroughly

aired

at

hearing

arid will

be

discussed

on

its

merits

later

in

this

opinion.

The

Board

finds

that

there

is

no

jurisdictional

issue

here.

Fundamental Fairness

Having affirmed that the County had jurisdiction in this proceeding,

the

Board turns now to Objectors’

arguments

suggesting that Objectors’ were

not

accorded fundamental fairness by the proceedings conducted by the County.

The Board notes in passing that the Objectors also raised a fundamental

fairness

argument

concerning

the

exhibits

just

prior

to

and

at

the

first

hearing,

when

the

Objectors

requested

pre—submittal

of

technical

data

and

expert witnesses (C—205).

MCI refused, saying the County could have

the

information,

but

that

the

opposition

was

not

entitled

to

it,

and

noted

that

the

opposition

did

not

offer

to

pre—sutinit

anything

in

return.

The

assistant

state’s

attorney

at

that

point

in

the

proceedings

stated

that

principles

of

fundamental

fairness

do

not

include

the

rules

of

discovery.

He

further

stated

that

“about

all

we

can do

in

these

proceedings

is

try

to

be

as

open

as

possible” (1.158—159).

The committee chairman and

two

committee

neirbers

felt

that the request could delay hearings

and

cause additional prejudice and, in

any

event,

nxre hearings could be held.

The hearing officer noted that at

that

late

time

the

rules

did

not

allow ordering

such

a

request.

The

hearing

officer noted that after the documents were introduced, they would go from

there.

(1.160—163).

The

Board

again

concludes,

as

it

did

in

the

Town

of St.

-Charles

case

mentioned

earlier,

that

the

availability

of

such

documents prior

to

the

close

of

the

hearing

process

controls.

In any case,

the Objectors did

not

later

pursue

the

issue

as

one

of

fundamental

fairness,

but

as

one

of

jurisdiction

(see

pg.

9

above).

Objectors’

first

“fundamental

fairness”

contention

is

that

merrbers

of

the

Macon

County

Board

may

have

met

ex

parte

with

representatives

of

the

Landfill

prior to hearings (R.8).

The only support

for

this

contention

produced

by

Objectors

was

a

newspaper

clipping.

No

testimony

was proffered

by

Objectors.

The States

Attorney

for

Macon

County

asserted

that

he

had

no

knowledge

of

any

such

meeting

(R.

19).

Committee

menbers

affirmed

this.

As

a

matter

of

law,

this

Board

cannot

reach

a

finding

for

which

no

credible

94—82

---

—9—

evidence

has

been

offered

and

admitted;

hence,

the

Board

finds

that

Objectors

have

failed

to

meet their

burden

of

going

forward

with

regards

to

this

contention.

*

Objectors

next

contend

regarding

“fundamental

fairness”

that

on

numerous

occasions,

Objectors

were wrongfully

denied

the

right

to present

evidence

(R.

9—10;

Objector’s

brief,

pp.

26—30).

This

contention

seems

inextricably

intertwined

with

Objectors’

contention

regarding

the

participation

and

influence

of

Thomas

H.

Moody,

Assistant

State’s

Attorney

for

Macon

County

over

the

Macon

County

Board

(see

following).

In

a

nutshell,

Objectors

assert

that

the

“Chair”

of

the

County

hearings

ruled

in

error

on

several

occasions

so

as

to

deny

Objectors

the

right

to present

certain

evidence

(the

reference

to

the

“Chair”

apparently

is

intended

to

refer

to

Mr.

Kahn,

a

private

attorney

employed

by

the

County

to

serve

as

“Hearing Officer”

of

the

County

hearings).

These

rulings,

not

specified

in

either

the

Board

hearing

record

or

the

Objectors’

brief,

allegedly

hindered Objectors’

efforts

to

adduce

evidence

regarding

the authority

of

the

County

to

impose

standards

“which

exceeded

the

minini.nn

requirements

of

the

Environmental

Protection

Agency”

(R.9—lO).

The

Board

has

searched

the

records

of

the

seven

hearings

held

in

this

matter,

and

has identified but three offers of proof tendered by Objectors.

These are

introduced

in

the

record

of

the

M~j18,

1988,

hearings

at

pages

6,

81

and

108,

respectively

(V.

6,81

and

108).

Of these, only one appears to address matters

regarding

“standards

which

exceeded

the

minimum

requirements”

then

in

place.

This

was

the

offer

of

proof

recorded

commencing

on

page

108,

which

related

to

the possible

imposition

of

a

plastic

liner

requirement

by

certain

other

local

governments.

The

MCI

refers

to

Objector’s

brief

in

this

regard

as

making

it

“difficult

to

tell”

whether

the Objectors’

concern

is

on

the

second

criterion

or

whether

it

is

limited

to

procedural

fairness.

The State’s

Attorney

suggests

that,

insofar

as

the Objectors’

withess

was

able

to

testify

in

response

to

questions

from

the

State’s

Attorney

on

the

record

and

outside

an

offer

of

Proof)

that

the

County

could

impose

more stringent

criteria

“than

imposed

by

the

E.P.A.”

(sic),

no

prejudice

occurred

(County’s Br., fifth—sixth

pages).

The

Board

agrees

that

Objectors

suffered

no

fundamental

unfairness

in

these

proceedings

in

this

regard.

First,

as

the

County

has

noted

(Ibid),

the

central

point

raised

by

Objectors

was

allowed

into

the

record

without

resort

to

an Offer

of Proof.

Second,

as

to

any

other

matters

falling

within

the

subject

matter

of

the

contention,

the Objectors

have

not

made

an

Offer

of

Proof.

In this

particular,

the

Board

notes

with

approval

the

holding

of

.A.R.F.

Landfill,

Inc.

v.

Pollution Control Board (1987),

528

N.E.

2d

390,

to

the

effect

that

where

fundamental

fairness

questions

are

not

raised

at

hearing,

they

are

waived

(see

MCL’s

Br.,

pp.

17—18).

*

Regarding

ex

parte

communications,

the Board

notes

that,

in

the

90

days

prior

to

hearing several letters were sent to the County

Board,

including letters from MCL and the Objectors

(C—77,C—

205).

All such communications were placed

in the public files,

made

a part of the record,

and were often referred

to at hearing.

94—83

---

—10—

Finally,

Objectors

assert

that

the

nature

of

participation

in

proceedings

before

the

County

by

the

States

Attorney

“colors

the

impartiality

of

the

County Board”

as

the

adjudicative

tribunal,

arid

hence

denied

Objectors

the

“fundamental

fairness”

to

which

they

were

entitled

(R.llO).

Essentially,

the

Objectors

assert

that

the

Assistant

State’s

Attorney

took

sides

and

argued

for

the

applicant’s

position

and

opposed

the

Objectors’

positions

(Objectors’

Br.,

pp.

26—27).

This,

Objectors

assert,

“undoubtedly

tainted

the

hearing

process”

and

“unfairly

prejudiced

Objectors’

rights

of

fundamental

fairness”

(ibid,

p.

27).

This

contention

is

controverted

by

the

County

in

its

brief

(second

through

sixth

pages)

which

addressed

each

of

the

15

instances

of

ostensibly

prejudicial

argumentation

by

the

Assistant

State’s

Attorney

(Mr.

Moody).

The

County

also

cites

this

Board’s

holding

in

Waste

Management,

Inc.

v.

Lake

County

Board,

P(~87—75

(Decettber

17,

1987)

to

the

effect

that

participation

by

county

agencies

and

State’s

Attorneys

in

siting

hearings

does

not

constitute

fundamental

unfairness

(County

Br.,

sixth

page).

The

Board

is

persuaded

that

Mr.

Moody’s

participation

in

these

proceedings

did

not

have

the

effect

of

denying

Objectors’

right

to

fundamental

fairness.

Nothing

in

the

record

of

this

proceeding

suggests

that

Mr.

Moody

or

anyone else

has

such

a

control over

the

deliberative

faculties

of

the

Macon

County

Board

as

to

overcome

the

presumed

impartiality

of

the

County

Board.

Moreover,

as

the

MCI

observed,

no

objection

to

Mr.

Moody’s

presentation

was

made

at

hearing

and

may

be

viewed

as constituting

a

waiver

of

the

right

to

raise this issue on appeal

(MCL’s

Br.,

p.

17,

citing the A.R.F. Landfill,

Inc.

case).

Issues

Relating

to

the

Statutory

Criteria

The objectors

appealed

the

County’s

approval

of

all

six

applicable

criteria.

The six

criteria

of

Section

39.2(a)

applicable

to

this

proceeding

are:

1.

the

facility

is

necessary

to

acccwtmodate

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

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

loctaed

outside

the

boundary

of

the

100

year

flood

plain

or

the

site

is

flood—proof;

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.

94—84

---

—11—

Manifest

weight

is

the standard

that

the

Board will

apply

when

reviewing

Macon County’s desision as based on the record of the

proceedings.

A.R.F.

Landfill

v.

Pollution

Control

Board,

N.E.

2d

390

(1988);

Waste

Management of

Illinois,

Inc.

v.

Illinois

Pollution

Control

Board,

528,

513

N.E.

2d

592

(1987).

This Board

may

only

disturb

the

Macon

County

decision

if

the

petitioner

objectors have

proven

that

the

decision

is

against

the

manifest

weight

of

the

evidence on each of the six criteria appealed. Section 1040.1(a).

Therefore

affirmance is

mandated

if

Petitioners’

have

failed

to

prove

Macon

County’s

decision

was

against

the

manifest

weight of the evidence on

any

single

criterion.

See Waste

Management

of

Illinois,

Inc.

v

PCB,

123 Ill.

App.

3d

1075, 1083, 1091, 463 N.E.2d 969, 976, 981 (2d Dist.

1984),

cert.

denied.

As

stated

by

this

Board

in

the

past:

Manifest weight of the evidence is that which

is the clearly

evident, plain and indisputable weight of the evidence,

and

in

order

for a

finding

to be contrary to the manifest weight of

the

evidence,

the

opposite

conclusion

must

be

clearly

apparent.

Industrial

Salvage,

Inc.

v.

County

Board,

No.

PCB

83—173,

59

PCB

233,

236

(Aug.

2,

1984)

(citing

Drogos

v.

Village

of

Bensenville,

100

Ill.

App.

3d 48,

426 N.E.2d

1276

(2d Dist.

1981) and City of Palos Heights

v.

Packel,

121 Ill.

App.

2d

63,

258 N.E.2d 121

(1st Dist.

1970)).

With

one

exception,

the

Board

will

first

summarize the

County

record

in

the

order

the

testimony

was

presented,

rather

than

criterion

by

criterion,

since

each

person’s

testirtony

and

exhibits

include one or more of the

criteria,

often

in

no

particular

order.

The exception is Criterion

#4,

regarding

the

flood

plain.

This issue was complex and involves the wording of

the County’s

condition;

it

will

be

addressed

separately

in

the

Board

Conclusion

segment

of

this

Opinion.

Before surrinarizing

the

testimony

on

the

criteria,

the

Board

notes

that

the

stated

intent

of

MCI

is,

if

the

County

approves,

to

operate

the

new

acreage

in

the

same

manner as

the

existing

acreage

arid

to

continue

to

accept

general as well as special waste as MCI is doing now; absent approval, MCI

will develop the

expanded

acreage to accept only general, household waste as

allowed by their pre—SB172 permits, except that without the increased height,

the

expanded

acreage will last only

five

years, not the 10 years stated

in

their

request.

First to present testimony were individuals invited by the County

Committee.

Mr.

Lee

Holsapple, since 1986 the Sheriff of Macon County,

(22 years

in

the sheriff’s office prior to that), testified

(I.

7—12) that:

MCI

is

two

or

three miles soutl’west of Decatur, and stated that regarding traffic, he

received no complaints about MCI in the past two years; over the years he

recalls only complaints of refuse

blowing

out

of vehicles

on

the

highway,

but

94—85

---

—12—

always

received

cooperation

from

MCI to resolve the problem; he knows of no

existing

traffic problem from the refuse trucks.

The Sheriff acknowledged

that

his

office

logs

complaints

only

when

there

are

follow—up

investigations

or

arrests,

and

that

complaints

possibly

made

to

other

officers

had

not

come

to

his

attention.

Mr.

Gary Fogerson,

for

eleven

years

the Coordinator

of

the

Macon County

Emergency Services

and

Disaster

Agency,

testified

(I.

12—18)

that:

the

only

caT~laint to

his

office

regarding

MCI

involved

a

truckload

of

paint

filters,

a

hazardous waste,

which

was

erroneously

shipped

to

the

landfill

by

company

employees,

but

was

retrieved

before

they

had

to

take

action.

He

also

noted

that

the “board office” files contain information on kinds of wastes MCI

presently

reveives.

Mr.

Charles

Burgener,

for

17

years

the

Engineering

Technician

for

the

Macon

County

Highway Department,

testified

(I.

19—35)

that:

his

office

has

no

knowledge of

traffic

problems

in

the

landfill

area,

including

Hill

Road

(north

of

the

site); the traffic count on Bear Road, a North—South Township road

intersecting

with

Hill

Road

near

the

entrance

to

the

site

is

150—399/day,

—

a

nrderate

township

road

traffic

count;

and

that

a state

roadway

map

shows

about

40—45

homes

in

the

area,

although

he

acknowledged

that

some

homes

appear

to

be

located

in

the

existing

landfill

(County

Ex.

1).

He

also

noted

his

traffic

counts

were

taken

from a

1985

Macon

County

traffic

map,

which

include

traffic

counts

in

the

County

averaged

on

a

24/hour

basis,

prepared

by

the

Illinois

Department

of

Transportation

in

cooperation

with

the

U.S.

Department

of

Transportation

(County

Ex.

2).

Mr.

Steve

Gaithrill,

since

1967

the Chief Officer

of

the

Harristown

Township

(within

which

MCI

is located) Fire Protection District, testified (I.

39—57)

that:

the

department

has

received

no

traffic

complaints

at

the

intersetion

adjacent

to

the

MCI

entrance;

records

compiled

since

1984

show

that

they

have

an~iered

8

calls

to

MCL’s operations,

i.e.,

5 trash fires,

2

vehicle

fires,

all

occurring

at

night,

and

one

injured

worker call.

(I.

41)

He testified that trash fires were extinguished with dirt;

the vehicle fires

involved

a

garbage

truck

with

a hot

load

and

a

tractor;

the

landfill

people

basically

use

their

own

personnel

under

the

supervision

arid

assistance

of

the

department;

they’ve

had

no

trouble

working

with

MCI,

and

there

have been

no

spills.

Mr.

Paul

McChancy,

for

13

years

the

County

Planner

with

the

Macon

County

Planning

and

Zoning

Department,

testified

(I.

58—96)

that:

there

are

four

landfills

in

Macon County:

MCI,

RhOdeS,

Bath

Inc.

and

McKenny

(Waste Hailers,

Inc.).

He presented

a

1983

air

photo

used

for

tax

mapping

and

kept

updated

based

on

property

tax

and

building

permit

records.

He used it to identify

home

sites,

with

those

within

a

1/2

mile

radius

from

the

borders

of the

site,

and

those

built

since

1975

coded

separately.

(I.

63—65,

92,93

County,

Ex.

5)

He testified that:

twenty six homes were built since 1975,

of which eight are

within the 1/2 mile radius; F~ortynine homes

in all are within the 1/2 miles

radius; the area is fairly rural and is served by private wells;

(I. 69—70)

the only complaints he received about MCI’S operations occurred after the

landfill filed

its

first

petition

and

were referred to the County Health

94—86

---

—13—

Department and the

EPA;

the

complaints concerned

blowing

litter, digging

activities in the expansion area, and an alleged natural spring

in the area.

Mr. Richard

Rosetto,

for 14 years a sanitarian with the County Health

Department,

testified (I. 96—133)

that: he

inspects

all

four

landfills

ia,nthly;

MCI

is

the

only

one

handling

liquid

waste;

Decatur

is

an

industrial

town;

18

residents

within

a

mile

and

one—half

had

their

wells

tested

in

1987

by the Illinois Environmental Protection

agency

(Agency)

and

the

tests

show

no

contamination

(Pet.

Group Ex.l,

1.99);

he has

received

complaints

about

road

dust

and

litter,

which

MCL

promptly

responded

to,

arid

a

complaint

about

trucks

at

night

a

couple

of years

ago;

and

MCL’s operations

are

well

above the

other

three

landfills,

especially

because

MCL

is

well

equipped.

Mayor Gary Anderson, not a County witness but, rather, on behalf of the

City of Decatur testified (I. 164—168) that:

the City supports

the

landfill

request; that the dumping fees in Macon County have increased 50

in the past

two years,

forcing increases in collection

arid

disposal

fees;

and

that

Agency

staff had told his staff that MCI has a good record.

MCL presented the following witnesses:

Mr. James Holderread, for one year Executive Director of the Macon County

Economic Development Foundation, testified (II. 6—17) that industry

needs

expansion of MCI, and that they are competing for a major

new

$50

million

plant which will not be located

in Decatur unless there

is enough industrial

waste,

including

liquid waste,

capacity.

Mr. Paul

Md(inney,

the President of

MCI

Corporation, testified (II. 17—

67, 69—122)

that: he also operated Waste Hailing until he

sold

out

in

1980,

is

familiar with its capacity,

and

that

Waste

Hauling

can

accept

waste

only

a

little over

two

years.

(II.

19-23)

Regarding MCI, he testified that the

existing

site

can

accept

general

and

special

waste

for

about

two

years. (II.

24)

He testified that the Bath landfill is the only landfill that will be

able to accept wastes for more than three years,

but only demolition waste;

the landfill can’t accept general waste now.

He

stated

that

only

two

landfills

in

the

County,

one

being

MCI,

accept

general

waste.

He

further

states

that

if

MCL’s

siting request

is

not

approved,

industrial

liquid

waste

will have to be hauled as far ~ay as Peoria, or to the Clinton

site

if

it

gets

permits.

He

also

testified

that:

MCI

accepts

92

of

its

waste

from

Macon

County

and

the

bulk

of

the non—County waste is from Monticello;

(II. 25) estimated

that MCI takes about 70—75 percent of the waste in Macon County;

(II. 83)

estimated that he received about 50

municipal

and

50

special,

(II.

91)

although that changes, depending on market conditions;

for any waste sent

outside the city limits

(Decatur’s population dominates the 125,000 population

of Macon County) as the distance increases, so do the hauling costs.

Mr. McKinney stated that he contacted two real estate appraisers, both of

whom decined to give their opinion as to whether the expansion would improve

or lower property values, because they said they

couldn’t

prove

it.

He added,

however, that of the 10

new

homes built since 1975, he built

and

sold three

94—87

---

—14—

himeelf,

as well

as

one

lot

in

his

sulx3ivision,

and

had

no

trouble

selling

them

even

though

real

estate

was

not

selling

well

generally.

(II.

30—32,

47)

The landfill

hours

are

7—4,

six

days

a

week

generally,

although

he

will

accept

late

requests

under

special

circumstances,

such

as

when

~DMhad

a

breakdown.

(II.

59)

Particularly

regarding

night

fires,

he

hands

out

cards

to

the

inirediate

neighbors

with

his,

the

foreman’s,

and other

Corporation

board

neithers’

phone

nuithers.

He

noted

and

agreed

with

the

Fire

Chief’s

testimony.

He stated

that

he

had

$1

million

worth

of

equipment,

including

crawlers,

loaders,

tractors,

dirt

moving,

two

power

brooms

to

~eep

dust,

water

pumps

arid

a

fire

truck

in

operating

order.

He has

never

had

a spill,

hazardous

or

oil,

and

nothing

has

discharged

to

the

stream.

He

has

been

the

Road

Commissioner

of

Harristown

Township for

12

years;

there

has

been

no

change

in

the

existing

traff ice

pattern

or

access

road.

(II.

33—37)

He noted that

MCI

paid

$60,000

in

1978

to

pave

Bear

Road

after

an

increase

in

traffic

caused

by

the

new

interstate,

and

that

the

state’s

contribution

was

to

design

the

road

for

garbage

truck

weights.

(II.

38—41)

Regarding

vehicle

mud,

he

is

now

building

a

1/2

to

3/4 mile white rock

road

within

the

site

before

the

trucks

can exit.

Regarding

litter,

he has

seven

people

available

to

pick

up

paper,

and

permanent

and

portable fences;

and

paper

is

confined

to

his

property

unless

a

strong,

40

mph

south

wind

causes

it

to

blow

over

the

north

fences.

(II.

42—62)

There

is

a

pipe

line

under

the

property

that

will

have

to

be

moved;

that

is a condition of the Agency permit,

and

negotiations

are

in

progress

with

the

pipelines owners.

He did not

know

whether

the

pipeline

is

in

use.

(II.

45)

He

stated

that

he has

liability

insurance

with

a

$1

million

unbrella

policy on

top

of everything else.

(II.

100)

He

also

stated

that

as

soon

as

he

gets

through

this

expansion,

he will

be

actively

looking

for

future

space,

that

Decatur will

be

in

trouble

again

in

10

years

and

cited

the

problems

of

Champaign/Urbana,

which has

been

working

10

years

to

solve

their

problems

and

have

not

been

able

to.

(II.

113)

If

the

expansion

is

denied, only

seven

years

remains

(2

on

the

existing

site

and

five

on

the

new)

and

he’s only

talking

about

solid waste.

He noted

that

if

the

situation

gets

tight,

the Corporation

stockholders

who

are

waste

haulers

might

have

to

get

preferential

treatment.

(II.

118—119)

Mr.

Richard

Lutovsky

testified

(II.

123—130)

in

favor

of

the

expansion

on

behalf

of

the

Metro. Decatur

Charrber

of ConuTerce after a Task Force study of

their

menters.

Mr.

Greg

Kugler,

a

technical

specialist

for

Aridrews Enviror~nental

Engineering

(Andrews), testified

(III.

5—14)

as

follows:

94—88

---

—15—

Referring to Exhibits 10—16, the Applications

and

the Development Permits

for the site, he testified that:

Fires,

spills,

and

other

operational

accidents

are

cover~d;a

10

foot

clay liner, compacted as necessary to a permeability of lxlO

cm/sec.

is

required as well as soil tests on a 200 foot grid.

(III.

12)

There are currently seven monitoring wells,

and

three more were required

for the

new

site;

Aridrews

is involved

in

the

pipeline issue;

it

was

involved

in testing of the 18 private wells

(they took split

samples

but

after the

positive

EPA results never tested them).

(III.

13-21)

Regarding the possibility of hauling waste 40—50 miles as suggested by

the objectors Mr. Kugler stated that this might be

acceptable

for

a

small

town,

but for Decatur, with a population of 100,000, this would be a

tremendous hauling burden.

He stated that Decatur is courting a problem to

depend on another County

and

a site in Clinton County, about 25 miles from

Decatur,

which

recently

received

SB172

approval

to

expand,

is not yet

permitted

and

is

thus

speculative.

(III.

103—122)

He testified that Arx3rews used the

Agency

publication Available

Disposal

Capacity for Solid Waste in Illinois (Objectors’

Ex.

11), to determine

landfill

capacity

in

Macon

County

and

the surrounding counties.

Arxlrews

determined

that

the

surrounding

counties

had

very

little

capacity

to

take

added

waste

from

MCI:

the

Bath landfill

plus

MCL’s

would

have

less

than

one

year;

the Water

Sanders

landfill

in

Logan County

would

have

less

than

one

year;

the

Lovell

landfill

in

Mcultrie

County

would

have

less

than

one

year;

the

Sangamon Valley

landfill

in

Sanganon

County

would

have

about

five

years;

and

the

Christian

County

landfill

would

have

less

than

three

years.

(III.

22—

24)

He

testified

that

the

permits

do

not

require

a

leachate

collection

system

or

gas

migration

controls,

but

all

comply with

existing

regulations.

(III.

24,

80,

84)

It

was

noted

that

the

plans

are

not

final

in

many

respects;

for

example,

the

vertical

expansion

is

conceptual

and

gas

vent

trenches

would

be

considered

if

there

were

to

be

a

problem;

and

they

are

reviewing

the

adequacy

of

the

monitoring

wells

and

the

monitoring

program,

which

were

designed

by

another

firm.

(III.

84—95)

Mr.

Greg

Kugler

believes

that

Decatur

needs

to

establish

plans

for

at

least

10

years,

reviewable

yearly,

since

site

capacities

are

shifting

so

much.

Arxlrews

has clients

who

doubled

their

landfill

price

and

cut

volume

in

half

to

extend

the

life

of

the

sites.

He

stated

that

each

year

there

are

fewer

sites

and

that

McLean

County,

for

one,

won’t

accept

special

waste

from

outside

the

County.

(III.

105—112,

122,

134)

He

also

sees

nothing

wrong

with

looking

to

the

Agency

for

technical

guidance;

most

counties

do

and

to

move

in

another

direction

can

be

a

waste

of

money.

(III.

131)

94—89

---

—16—

Mr. Gordon Dill, a consulting engineer,

was

hired

by

the

County

to

study

and

make

recommendations

concerning

the

proposed site.

He testified

(IV. 12—

108) that:

he reviewed the testimony

and

records

concerning

all

four

sites,

including

Agency

documents

regarding

design

and

requirements

for

Sites

3

and

4,

including

relocation

of

the

pipeline,

the

bottom

and

sidewall

liner

requirements,

and

the

requirement

that

any

sand

layers be

removed

before

recatipation,

as well

as

the

site

entrance

and

traffic

patterns.

He

reconmended

that the site be

approved,

(IV.

23,

lCounty

Ex.

8)

stating

that

MCI

will have to

remove

the pipeline,

have

10

soot. clay

soil

liner

on

the

bottom

and

sides

to

a

maximum permeability

of

lxlO

cm/sec.

both

vertically

and horizontally, have upgradient and downgradient monitoring wells to allow

checking

for

groundwater,

provide

for

litter

and

fire

controls,

and

for

sweeping

and

wetting

down

the

entrance

road.

He

stated

that

the

entrance

road

(Bear

Road)

was

designed

by

IDOr

10 years ago to handle loaded

garbage

trucks

and that the traffic pattern will not change.

He included one condition, that

the pipeline be removed from the site prior to construction of the 10

foot

thick

berm.

He noted that many design aspects will be precisely

determined

in

response to surveys and soils problems found during the development and

operational

stage.

For example, he felt that it is sufficient to

know

at this

stage that any sand layers will have to be removed

—

the dirt will have to be

removed

anyway

to get proper recanpaction.

(IV. 71)

He agreed that field

tests

are

preferable

to

laboratory

tests,

and

that the monitoring wells should

be at the

correct

elevation

to

assure

proper

sampling

.

He essentially felt

that,

although

the

soil

sample

and other

data

before

the

County

Board

presently

does

not

contain

all

of

the material,

it

is

clear

that

MCI will have

to gather sufficient data to assure that these goals are

met before

an

operational permit will be issued.

He also noted that the existing traffic pattern

won’t

change

unless there

is a radical change

in the growth of Decatur and its industries.

(IV.

91—93)

He also

noted

that on his site visit he

saw

one person picking up some blowing

litter.

(IV. 91)

The Objectors’ witnesses testified as follows:

Mrs. Becky Hand, who has resided 1/2 mile from the Hill Road to the west

for about 30 years, testified (V.

4—12)

that:

there has been a

change

in the

quality and quantity of her well water over the last 10—15 years,

but

acknowledged that “Rube and Merle’s”, which she believes is

a illegal dump,

is

located directly to the

south

of her house and that she has fought

it for

years.

Mrs.

Barbara Kelley, who is one of the

Petitioners

in

this

case,

who

has

lived about ten years

two

to three blocks from the landfill to the west on

Hill Road and whose property line is abcut 250 feet away testified (V.

13—43)

that:

the landfill doesn’t protect her health; there

is road mud and thick

dust;

there are odors; there

is no screening of the

view;

and

that litter

blows on her property, endangering horses she raises for show.

She presented

pictures taken starting in Noverrber of 1987 (Obj. Gr.

Ex.

4—7) depicting the

94—90

---

—17—

dust, uncovered garbage left overnight,

vectors,

large semi—trucks

in the

area,

standing

water

on

Site

3,

debris

in

the area, the fence on Site 2 and

the landfill height as

compared

to her barn.

She acknowledged that:

the

fence was there when she moved in 1977 but is closer now; the nearby

Decatur

Sanitary District sludge pits smell

but

not

as

bad

as

the

landfill;

the

prevailing winds

are

away from her house; and that for

two years

prior

she

made only one

complaint,

about

dust,

which was watered down for

two

or

three

days

only.

Mr. Jchn Thcinpson, of Champaign County,

arid for

about

four

and

one-half

years

Executive

Director

of Central

States

Education

Center

and

the

Central

States

Resources

Center,

has

a

Bachelor’s

of

Science

degree

in

Chemical

Engineering

and

testified

(V.

44—113)

that:

he

reviewed

the

computer

printout

of

Agency

manifests

regarding

Rhodes,

Clinton,

Waste

Hauling,

Waste

Control

and

MCI

landfills.

He introduced

as

Objectors’

Exhibit

11

the

Agency

book

titled “Available Disposal Capacity for Solid Waste in Illinois”,

commonly

called the “Green

Book”

and referred to earlier by Mr. Kugler.

He calculated

that,

if the County

Board

denies the expansion, Site 3

and

4

would

have,

not

five,

but

8

1/2

to

9

1/2

remaining

years, because the Agency permitted

lowering

the

bottom

elevation

25

feet,

plus

the

two years

remaining

on

Site

2.

(V.

52—61)

Mr. Thompson next turned to the waste disposal site in Clinton.

Regarding the Clinton site,

in D~ittCounty which has received its SB172

approval, the hearing officer sustained MCI’s objection that absent an Agency

operating permit, Clinton County’s waste capacity cannot be considered

because

it is speculative.

The Objectors asserted that it ought to be considered

because the County could prospectively condition

its

approval on whether the

Clinton site is

permitted.

The Board has previously held that an Agency

permit,

even an experimental

permit, would be sufficient for the County to consider the waste capacity of

sudza site.

Waste Management,

Inc.

v. Will County

Board

(E.S.L. Landfill),

PCB

83—41

(June 30,

1983) Aff’d, 122 Ill. App. 3d 639, 961 N.E. 2d 542 (3d

Dist. 1984).

The Clinton County site, however, has no Agency permits at all,

and the Board agrees that Macon County

need

not consider evidence concerning

the Clinton site.

The Board notes that to conclude otherwise suggests that

even

local

zoning

approval

of

non—regional

pollution

control

properties

throughout

the

County

would

have

to

be

considered

by

the

County

Board

or

the

applicant

before

activity

to

initiate

any

development of

any site

could

occur.

This

could

present

an

extraordinary

burden

for

applicants,

particularly since local approval,

while

necessary,

is

only

a

preliminary

step.

This is equally true for the instant

MCI

application.

The Objector’s

offer of proof will not be considered.

(See V. 58—62, and Obj. Ex.

16)

Mr. Thompson then presented calculations on the special waste needs

generated inside Macon County and disposed of at MCI for which there are

special waste permits in 1988 and

beyond,

as well as special waste needs

generated outside Macon County but disposed of at MCI, and the miles

involved

(Obj.

Ex. 12,13).

Similar calculations were also presented for the

Waste

Hauling landfill (Ex. 13,14).

Mr. Thompson asserted that the special waste

volume

at MCI does not represent 20,

30 or 50

of the total; using the “Green

94—91

---

—18—

Book”, he

concluded

it is more like 5.

The two

main

generators

are

Staley

and

AJ~4in Decatur.

He asserted that

special

waste has a larger service area

and that the Villa Grove landfill in Douglas County, 40 miles away, accepts

special waste, but acknowledged that

Champaign/Urbana waste

presently

goes

to

Villa Grove

and

Danville.

(V. 66—78)

Regarding Criterion #2, Mr. Thompson testified that:

there is no design

in the record for expansion; there are no leachate estimates, special waste

needs to have a more strenuous design;

a leachate collection system is needed;

there

is

no

specific information

as

to

where

the

soils

needed to

cover

the

waste

is

sufficient;

and

there

is

no

plastic

liner,

although acknowledging

that they supported an Urbana expansion that had no plastic liner.

(V. 79—86,

98)

Regarding

Criterion

#3,

Mr.

Thompson noted there are no plans to add more

screening to accommodate the requested increase in height.

Mr. Thompson also

noted that three monitoring wells appear to be located in the Sangairon River

flood plain.

(V. 86,87)

Regarding the County sanitarian’s inspections, he reviewed the inspection

reports from April 1986 to April 1988 for the four County landfills.

Leachate

seeps were noted more than at the other landfills.

(V. 87—90, 104)

Mr. Michael Duffin of Central States Education Center and also a

geologist employed by the University of Illinois looked at 31 of MCL’s

borings, old Agency statements and maps in

relation

to

potential,

usable

acquifer sediments and leachate protection and testified (VI. 5—56; Obj. Ex.

18—19)

that:

the geological data is highly speculative,

the borings are

discontinuous; and attenuation tests are lacking.

He felt the data is not

sufficient to say, either way, regarding minimizing leachate migration.

He

acknowledged that the development permits require additional test borings

before an operating permit will be issued; that any

sand

pockets have to be

removed although they could cause problems outside the fill area; and that he

is concerned that field testing

is not specified.

He said that the glacial

till area from

Kankakee

south to Decatur to Springfield generally has sand and

firmly agrees that Central

Illinois

is

not

all

that

good

for

locating

landfills.

(VI.

5—56,

Obj.

Ex.

18

and

19)

Ms.

Thelma

Reed has lived, for 16 years, 25 feet from Site 3 and

testified (VI. 57—61) that: she fought the expansion in 1973 and 1975;

there

is dust, dogs, and vectors at the landfill; she rented land to MCI for offices

and is appearing as their landlord, but not for the proposed site.

Mr. Roger Tate, one of

the

Petitioners

in

this

appeal,

has

been

for

31

years,

a resident of property

located

approximately

1000

feet west on Hill

Road.

He testified

(II. 61—101)

that:

incompatibility can’t be minimized;

it

is incompatible because the landfill

is the tallest place in the area;

for the

first

time

in

30

years

he

killed

four

rats

at

his

house;

the

noise

and

smell

is

bad;

water

is

not

safe

even

if the Agency said it

was

asserting that the

Agency checked only 60—80 things

(parameters)

in

the private well tests,

but

there are 60,000 chemicals;

(VI. 61—68) the traffic is bad; he went into the

ditch trying to pass an earth mover on Hill Road,

but

the sheriff didn’t

94—92

---

—19—

answer

his

call;

(VI.

70,72)

his

private

well

tests

(Obj.

Ex.

20)

showed

bacterial

contamination;

the

pipeline

will

be

moved

to

where his

screening

trees

are;

(VI.

82)

the

inspectors

do nothing; he has complained for many

years to his County Board representative, his State representative, the County

Board of Health, the

Attorney

General’s office, the Agency

,

the

road

Commissioner

and

the Sheriff

and

very

little is done to improve things.

(VI.

92)

Mr.

Tate

feels

property

values

have

diminished

because

five

years

ago

he

was

only

able to

get

a

$1500/acre

loan

to

buy

property

~t auction that MCI

paid

$2000/acre

for;

he

acknowledged

that

the

Federal

Land

Bank

won’t

loan

100

of

property

value

and

that

he

opposed

rezoning

the

land

to

residential

at

a

County hearing.

(VI.

89—91,

98)

Mr. Tate acknowledged that he sells

dirt

by leasing the southeast part of

his property.

That dirt is removed by backhoe and trucked out; he

said,

however, that

the

trucks weren’t as big as garbage trucks.

(VI.

94, 95)

He stated he can’t use his water for

drinking

and

cooking

except

for

four

gallons a day from a reverse osmosis system.

(VI.

99)

Ms. Reed testified again (VII. 5—20)

that,

subsequent to her prior

testimony the water from her faucet was dirty after

being

excellent for 45

years;

that she took pictures (Obj. Ex.

22) down toward the River showing a

large pond where

MCI

was removing earth and, although her well is upgradient,

her well was

affected

when the equipment was active.

(VII. 5—20)

The

last

witness

for

the

Objectors

was

Dr.

Valocci,

an

associated

professor

for

seven

and

one—half years

of Civil

Engineering

at

the

University

of

Illinois.

He

conducts

basic

and

applied

research

in

groundwater

hydrology

and

contaminant

movement

in

soils

and

aquifers.

After

reviewing

the

Petitioners’

Exhibits

7

and

10—16,

Dr.

Valocci

testified

(VII.

21—50)

that:

the

existing

groundwater

monitoring

system

is

inadequate;

laboratory

permeability

tests

are

inadequate

and

he

believes

the

landfill

has

a

high

potential

to

degrade

local

groundwater

resources.

He

asserted

that

the

monitoring

wells

are

not

deep

enough

and

would

detect

only

side

leakage,

water

flows

to

the

Sangamon

cannot

be

assumed

if

leachate

mounding

occurs;

upgradient

wells

could

be

affected;

Ms.

Reed’s

well

problem

might

have

been

affected

if

a permeable

unit

was

ruptured

during

excavation;

and

that

high

concentrations

of

organics

can affect

clay

permeability,

but

is

not

as

likely

on

recompacted

clay.

(VII.

21—50).

Criterion

#4.

As

noted

earlier

the

testimony concerning Criterion #4

is

summarized

separately

as

follows:

With respect to the fourth siting criterion of Section 39.2(a)

(“the

facility is located outside the

boundary

of the 100 year flood plain or the

site is flood—proofed”), the MCI application

(Exhibit 4, C—69) states simply

as follows:

94—93

---

—20—

6.

that

the

proposed landfill

extension

is

located

outside

the

boundary

of

the

100

year

flood

plain

as

determined

by

the

Illinois

Department

of Transportation.

Subsequently,

Assistant

State’s

Attorney

Moody

stated

that

the

reference

to the Illinois

Department

of Transportation had been removed from the

law

(1.6).

Absent such a definitive authority to declare the boundaries of the

100-year flood plain, several witnesses testified as to the approximate

boundaries of the flood plain in relation to the landfill’s areas

3 and 4 (see

following).

As will be

noted,

there was some

disagreement

as to the present

boundaries of the 100 year flood plain.

There was general agre~ntthat the

current flood plain would have to be determined

in

a new topographical study;

such a study

was

underway at the time of the County Board proceeding

(III.

11,43;

IV. 46).

On this subject,

the

County

Board first heard from Mr. Paul

Mdhancy,

County

Planner

with

the

Macon

County Planning

and

Zoning Department.

Mr.

Mc~hancyhad

prepared

two

maps

based

upon

the

official

flood

plain

maps

for

Macon

County

as

prepared

by

the

Federal

Emergency Management

Agency

(FEMA);

these

maps

were

identical

except

for

scale

and

were

identified

in

the

record

as County

Board

Exhibits

3

and

4.

(I.

60—61)

These

maps,

Mc~hancytestified,

are

relied

upon

by

his

department

and

by

developers

in

the

County

(I.

63).

Mr.

McChancy

also

referred

to

a

map

based on aerial photos taken

in 1983

and

updated

on

property

tax

records.

This

map

was

identified

in

the

record

as

County Board’s

Exibit

5

(1.63).

This

map

was

identified

by

Mc.Chancy

as

relied

upon

by

Macon

County

for

tax

purposes

(Ibid.)

Exihibit

5

did

not

purport

to

indicate

the

100—year

flood

plain,

however

(1.67).

Based

on

Exhibit

3,

McChancy

indicated

that

the

flood

plain

level

in

the

general

area

of the

landfill

ranges

from

599

feet

above

mean sea

level

(MSL)

to

600

feet

MSL.

He

estimated

the

flood

plain level in

the

iirn~diatearea

of

the

proposed

expansion

area

(areas

3

and

4)

to

be

599.25

feet

above

mean

sea

level

(1.68).

He

stated,

however,

that

he

did

not

know

“how

much

the

elevation is below 100 year flood plain at the south edge fo

the

proposed

landfill” (sic:I.69).

He did, at MCL’s request,

mark

County

Board’s Exhibit

3

to indicate the southern most boundary of the area,

1400

feet

from the center

of Hill Road.

He testified that he had also marked on the

map

the flood plain

level at the west boundary of the proposed expansion (area

3)

of the

landfill.

Using these markings, he then indicated that the difference

(i.e.,

the portion of area 3 overlapped by the flood plain) at that point is 210 feet

(1.76—79).

Under cross—examination, he estimated the amount of acreage within

the proposed site which is actually in the flood plain as he had

drawn

it to

be 7 acres

(1.84).

He acknowledged that his mapping only represented where

the flood plain lay as of 1984 (1.87) and that the contours of the flood plain

as shown on the

map

could vary 50 to 100 feet (1.89).

The next witness heard by the County on this criterion was Mr. Paul

McKinney.

Mr. McKinney testified, without elaboration,

that he agreed with

Mr. M~hancy’scharacterization of the FBNA map as relatively inaccurate and

that it could vary between 50

and 100 feet

(II. 44).

On cross—examination,

Mr. McKinney testified based on

personal

knowledge

that

the

actual

flood

plain

94—94

---

—21—

is

located

“right

along the

1400

foot

line”,

that

is,

the

southern

boundary

of

the

site.

He

indicated

that

he

based

his

conclusion

upon

an aerial map

prepared

by

one

of

MCI’s

former

engineers

from

a

1970

aerial

photograph,

updated

in

1977

by

an

MCI

ground

crew.

He

acknowledged,

however,

that

(as

Objectors’

counsel

suggested)

the

“flood plain

map”

(sic)

could

nove

from

time

to

time

because of

conditions

of

water

flow

and

change

in

soil

surface

(11.71—

72).

The

County

Board

then

heard

testimony

on

this

subject

from

Mr.

Greg

Kugler,

a

technical

specialist

for

Andrews

Environmental

Engineering,

a

consulting

engineering

firm

retained

by

MCL.

Mr.

Kugler

testified

that

the

current

landfill

permit

required the

facility

be

located

outside

the

estimated

100—year

flood

plain of 599 1/4

feet

(111.10).

Utilizing

another

map

(identified

in

the record as Petitioner’s Exhibit 17), he indicated that the

current

developmental

permit

allows

the

applicant

to

start

its

berm

construction

no

lower

than

600

feet

above

mean

sea

level.

He

affirmed

that

the

berm

which

is

to

be

constructed

prior

to commencement of landfilling

operations,

must

be

constructed

above

the

100—year

flood

plain;

the

significance

of

this,

he

explained,

is

that

the

berm serves as an outside

“initial barrier”, diverting surface water runoff and allowing the landfill

operator to establish exactly where his fill boundaries are.

The

berm

is

constructed

of

“clay

soil

compacted

to

meet the EPA

requirements

of

“10

to

the

—7 centimeters per second”

(III.

10—12).

He concluded that with the berm

there will be no filling within the 100-year flood plain

(III.

12), although

he acknowledged that a portion of the overall site,

not

including

the

fill

area, lay within the flood

plain

(III.

42—44).

He

indicated

that

a

new

aerial

survey was in progress

in order to accurately delineate the current 100—year

flood

plain

(III.

43).

He would

not

indicate

the

southern

boundary

of

the

fill

area,

other

than

in

relation

to

the

600

foot

MSL

benchmark,

which

is

described

as

being

“at

the

very

southern

portion

of the

area

well

below all

areas

of

indicated

fill”

(III.

46).

The

final

witness

on

this

criterion

for

the

County was Gordon E.

Dill,

a

registered

civil

engineer.

Mr.

Dill

is

the

author

of

a letter dated April

13,

1988

to

the President of the Macon County

Board,

which

letter

was

entered

in

the

record

of

the

County

proceedings

as

County Board

Exhibit

7.

Under

cross—

examination,

Mr.

Dill

referenced

his

statement

in

said

Exhibit

7

to

the

effect

that

an

engineering

analysis

of

the

100-year

flood plain

would

be

required.

Alluding

to

the

topographical

survey

in

progress,

he

stated

that

such

necessary

data

would

not

be needed

until

the

developmental

and

operational

stage;

he

specifically

indicated

that

such

data

was

not

needed

at

the

present

time

(i.e., during deliberations by the County)

(IV. 46—47).

He joined Mr.

Kugler

in

asserting

that

the

berm

at

the

southern

end of the landfill would

not

be

within

the

100-year

flood

plain

(IV.

96).

Two witnesses

addressed

this

criterion

on

behalf

of

the

Objectors.

The

first

was

Mr.

John Thompson, whose testimony

on other

than

Criterion

#4

was

surrrnarized

earlier.

Mr.

Thompson,

based

on his review of the exhibits

then

in

the

record,

stated

his

conclusion

that

these

documents

failed

to

specify

the

exact

locations

of

the

monitoring

wells.

Based

on his

review

of

other

EPA

documents

for

the site,

he

stated

that

it

appears

that

three

of

the

monitoring

wells

for

sites

3

and

4

of

the

landfill

would

be

located

within

the

flood

94—95

---

—22—

plain

of

the

Sangaiton

River.

He

indicated

that

having

these

wells

“subznerged

under

water”

in

a

flood

would

be

undesireable

(IV.

86—87).

The

final

witness

on

this

subject

was

objector

Roger

Tate,

who

resides

approximately

1,000

feet

west

of

the

proposed

expansion

of

the

landfill

(area

3).

Mr.

Tate,

based

on

his

thirty

years

of

living

and

farming

in

the

area,

described

the

general

area

as

flooding

frequently.

He

stated

that

“I

don’t

know

anything

about

a

100—year

flood plain,

bit I do know

where

that

river

floods

because

I have

seen it

time

and

time

and

time again” (VI.

72—73).

He

indicated

on

County

Board

Exhibit

5

the

extent

of

the hj~ghest

flooding he has

experienced;

he testified

that

this

point

was

“prthably

1,500

feet”

from

the

Hill

Road (i.e., from the

northern

boundary of the landfill)

(VI.

74—76).

In their final

arguments

on this

point

(VII.

71—85),

Objectors

contend

that

the

record

demonstrates

that

the site

will

be

located

within

the flood

plain

and

that

MCL’S

imprecision

in

identifying

the

southern

boundary

of

the

fill

area,

the

location

of

the

berm

and

the

current

100—year

flood

plain

boundary

means

that

MCI

failed

to

meet

its burden

of

demonstrating

compliance

with this criterion.

Objectors’ counsel also characterized McL’s attitude on

this criterion as suggesting that all of the county’s concerns “would be

addressed down the road when they go to the EPA”.

He

stated

that

this

is

not

true “because some of the objections we made are not required (by the EPA)”

(R.

85).

In

the

hearing

before

this

Board,

Objectors’

counsel

repeated

these

assertions

(R.

14—17)

suggesting

that

the

statute

clearly

requires

the

county

board

to

decide

either

that

the

landfill

site

is

outside

the

100—year

flood

plain

or that,

if

the

landfill

is

within

the

100-year

flood

plain,

“they

the

county board

have to

make

a determination

that

there

are

adequate

flood

proofing

plans”

(R.

14).

Objectors

again

raised

these

arguments in their final

brief

(Petitioner’s

Br.

pp.

12—16).

Specifically,

Objectors

contend

that

the

County Board’s

condition

nurther

five,

which

requires

the

proposed

landfill

expansion

“be

out

of

the

flood

plain

or

be

flood—proofed”

(C—292;

emphasis

added)

means

that

“the

County

Board

has

therefore

delegated

criterion

four

...

to

the

applicant”

and

“explicitly

demonstrates that

the applicant

never

satisfied

the

flood

plain

criterion”

(Petitioner’s

Br.,

p.

13).

They

repeat

their

claim

that

the

County

Board

is

obligated

to

determine

that

the

facility

is

either

located

outside

the

100—year

flood

plain

or

that

the

facility

is

flood—proofed

(Ibid),

and conclude that the County Board

“simply

had