ILLINOIS POLLUTION CONTROL BOARD
May 5, 1988
JOHN ASH, SR.,
Petitioner,
v.
)
PCB 87—173
IROQUOIS COUNTY BOARD,
Respondent.
MR. THOMAS E. McCLURE, ELLIOTT & McCLURE, APPEARED ON BEHALF OF
PETITIONER.
MR. TONY L. BRASEL, STATE’S ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon an appeal filed by
John Ash, Sr. (“Ash”) on November 12, 1987 pursuant to Section
40.1(b) of the Environmental Protection Act (“Act”) (Ill. Rev
Stat. ch. 1111/2, par. 1040.1(b)). Ash appeals the October 13,
1987 decision of the Iroquois County Board (“County”) denying
siting location suitability approval for a new regional pollution
control facility.
Ash contends that the County’s decision: (a) was reached as
result of fundamentally unfair procedures, (b) was not rendered
within the time period mandated by the Act, and (c) is against
the manifest weight of the evidence. The County, for its part,
contends that its decision as rendered was both fundamentally
fair and in accordance with the evidence presented to it.
For the reasons described below, the Board finds that the
County’s procedures were fundamentally fair, that the County’s
decision was rendered timely, and that the County’s decision was
not against the manifest weight of the evidence. Accordingly,
the Board affirms the County’s decision denying site location
suitability approval.
HISTORY
On August 11, 1986, Ash filed a siting request for a new
sanitary landfill with the Clerk of Iroquois County. Between
November 18 and December 3, 1986 the County’s Regional Pollution
Control Committee (“Committee”) conducted nine public hearings on
the proposed landfill pursuant to Section 39.2(d) of the Act. At
these hearings the County received evidence and testimony
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concerning the six applicable1 criteria set forth in Section
39.2(a) of the Act. Objector Citizen Group (“Objectors”)
presented evidence to the County and was represented by Mr. James
Yoho. On February 3, 1987 the County adopted an initial
resolution denying the siting approval sought by Ash.
On March 9, 1987 Ash filed an appeal of the County’s
February 3, 1987 decision with this Board. The appeal was
docketed as PCB 87—29. On July 16, 1987 the Board entered its
Fi9al Order, accompanied by a separate Opinion (hereinafter,”Ash
I”
),
in PCB 87—29. The Order reversed the County’s February 3,
1987 decision on the basis of lack of fundamental fairness.
Inter alia, the Board found that the County had failed to give
adequate consideration to the record before it. Accordingly, the
Board remanded the matter to the County for reconsideration and
rectification of the fundamental fairness problem.
On Octob~r 13, 1987 the County adopted a second resolution
(“Resolution”3), which again denied the siting approval sought by
Ash. The Resolution contains seven sections, one section dealing
with matters of jurisdiction and one section pertaining to each
of the six statutory criteria; with respect to the latter the
Resolution finds that Ash failed to adequately or satisfactorily
demonstrate that each of the six criteria was met. The seven
sections, plus the R~solutionas a whole, were adopted by
identical 19—0 votes
On November 12, 1987 Ash filed the instant appeal.
Subsequently the County moved to include the record of Ash I
within that of the instant matter. That motion was granted by
Board Order of December 17, 1987.
1 Section 39.2(a) contains a total of seven criteria. However,
since the proposed facility is not intended for “treating,
storing, or disposing of hazardous waste”, only six of the
criteria are applicable in the instant matter, pursuant to
Section 39.2(a)(7) of the Act.
2 John Ash, Sr. v. Iroquois County Board, PCB 87—29, slip op.,
July 16, 1987.
The Resolution of October 13, 1987 is found in the record as
Exhibit D attached to Petitioner’s November 12, 1987 Appeal, and
on pages C—86 through C—92 of the County’s Supplemental Record,
filed December 8, 1987.
The County record shows at C—9l and C—92 that County Board
Members Barker and R. Schroeder were absent and that County Board
Members Carley, Kelly, and Lanoue voted present on each of the
eight individual roll calls.
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Hearing was held January 21, 1988 in Watseka, Illinois.
Briefs were filed by Ash on March 21, 1988, and by the County on
April 5, 1988.
REGULATORY FRAMEWORK
Requirements for the siting of new regional pollution
control facilities are specified in the Act. Section 39(c) of
the Act provides that “no 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 accordance with Section 39.2 of
this Act”. At the time this proceeding was before the Iroquois
County Board, Section 39.2 provided 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 accommodate the
waste needs 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 minimize the effect on
the value of the surrounding property;
4. the facility is located outside the boundary
of the 100 year flood plain as determined by
the Illinois Department of Transportation, or
the site is flood proofed to meet the
standards and requirements of the Illinois
Department of Transportation and is approved
by that Department;
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.
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Section 40.1 of the Act charges this Board with reviewing
the County’s decision. Specifically, this Board must determine
whether the County’s decision was contrary to the manifest weight
of the evidence. E&E Hauling, Inc. v. Illinois Pollution Control
Board, 116 Ill.App.3d 586, 451 N.E. 2d 555 (2nd Dist. 1983),
aff’d in part 107 Ill.2d 33, 481 N.E.2d 664 (1985); City of
Rockford v. IPCB, 125 I11.App.3d 384, 386, 465 N.E.2d 996 (1984);
Waste Management of Illinois, Inc., v. IPCB, 122 Ill.App.3d 639,
461 N.E.2d 542 (1984). The standard of manifest weight of the
evidence is:
A verdict is
...
against the manifest weight of the
evidence where it is palpably erroneous, wholly
unwarranted, clearly the result of passion or
prejudice, or appears to be arbitrary, unreasonable,
and not based upon the evidence. A verdict cannot be
set aside merely because the jury County Board could
have drawn different inferences and conclusions from
conflicting testimony or because a reviewing court
IPCBJ would have reached a different conclusion
when considering whether a verdict was contrary to the
manifest weight of the evidence, a reviewing court
IPCB must view the evidence in the light most
favorable to the appellee.
Steinberg v. Petra, 139 Ill. App. 3d 503, 508 (1986).
Consequently, if after reviewing the record, this Board
finds that the County could have reasonably reached its
conclusion, the County’s decision must be affirmed. That a
different conclusion might also be reasonable is insufficient;
the opposite conclusion must be evident (see Willbrook Motel v.
IPCB, 135 Ill.App.3d 343, 481 N.E.2d 1032 1985).
In addition to determining whether the decision of the
County was against the manifest weight of the evidence, the Act
also charges this Board with reviewing several procedural facets
of landfill siting proceedings. Among these are two items
present in the instant matter: (1) whether the history of the
Ash application is such that Ash is entitled to deem the site
approved pursuant to Section 39.2(e) of the Act, and, (2) whether
the County’s procedures used in reaching its decision were
fundamentally fair, pursuant to Section 40.1 of the Act (E&E
Hauling, supra). Since each of these issue constitutes a
threshold matter, the Board will address these issues before
turning to consideration of the merits of the Ash application.
OPERATION OF LAW
Ash contends that the County failed to take final action
within the 180—day time limit specified in the Act, and that
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therefore he is entitled to deem the site approved pursuant to
Section 39.2(e) of the Act. Ash notes that his application
before the County was originally filed on August 11, 1986 and
that the decision of the County presently under review was not
delivered until October 13, 1987, a period in excess of fourteen
months. It is to be noted, however, that the County originally
rendered a decision on February 3, 1987, which was a timely
decision with respect to the original 180—day period. The issue,
therefore, is whether the February 3, 1987 decision constituted a
final action.
This identical matter was addressed by the Illinois Second
Appellate District in McHenry County Landfill, Inc. v. PCB, 154
Ill. App. 3d 89, 506 N. E. 2d 372 (1987) (hereinafter, “McHenry
County”) In addressing the “final a~tion” concept of the
statutory language, the court stated3:
Landfill next argues that it was entitled to deem
its site approved because the county board failed to
take “final action” on its request within 120 days of
filing, as required by Section 39.2(e) of the Act.
(Ill.Rev.Stat. 1983, ch. 111—1/2, par. 1039.2(e).)
Landfill admits that the county board denied site ap-
proval 114 days after the initial filing (on March 20,
1985), but contends that the order was not “final”
because, on review, the PCB held that the wrong
evidentiary standard had been used and that it
therefore had “no proper subject for review before
it.” By the time the PCB remanded the case to the
county board for a new vote, the initial 120—day
period had expired, and Landfill argues that the
county board’s subsequent decision therefore was un-
timely.
Again, we must look to the legislature’s intent
(Maloney v. Bower (1986), 113 Ill.2d 473, 479), and
the purpose the statute is designed to serve (Benjamin
v. Cablevision Programming Investments (1986), 114
Ill.2d 150, 157) when interpreting its language. The
legislature did not vest the county board with the
authority to finally deny site approval, but instead
allowed an applicant to appeal a county board’s denial
to the PCB. (Ill.Rev.Stat. 1983, ch. 111—1/2, par.
1040.1.) We therefore conclude that the “final
The Board notes that at the time of the McHenry County action
the statutory timeframe for county board decisions was 120
days. This was subsequently changed to the 180 days applicable
here.
89—55
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action” which a county board must take within 120 days
of filing need only be sufficiently final to justify
an appeal to the PCB. The county board’s March 20,
1983, order clearly denied site approval and had the
legal effect of precluding Landfill from obtaining a
permit unless it filed a timely appeal with the PCB.
Ill.Rev.Stat. 1983, ch. 111—1/2, pars. 1039.2(f),
1040.1(a); see Port of Boston Marine Terminal
Association v. Rederiaktiebolaget Transatlantic
(1970), 400 U.S. 62, 71, 27 L.Ed.2d 203, 210, 91 S.Ct.
203, 209 (an administrative agency’s action is “final”
for appeal purposes when review will not disrupt the
orderly adjudication process and legal consequences
will result from the agency’s action).
It is clear that the County’s action of February 3, 1987: (1) was
within the statutory deadlines for action, (2) concluded the
County’s adjudicative process such that an appeal would not be
disruptive, and (3) that legal consequences would result.
Therefore the County took “final action” within the statutorily
mandated timeframe and the landfill approval does not issue by
operation of law.
FUNDAMENTAL FAIRNESS
Ill. Rev. Stat. 1986 ch 111 1/2 par. 1040.1 requires that
this Board review the proceedings before the.County to ensure
fundamental fairness. In E&E ~iau1ing, supra~, 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
(116 Ill. App. 3d 586). 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 a case in advance of hearing it” (Id., 451 N.E.2d at
565). Adjudicatory due process further requires that the
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).
6 The Board notes that, while the Illinois Supreme Court reversed
the Appellate Court’s conclusions in that case about the
existence of conflict of interest and bias/pre—judgment which
would disqualify the entire County Board as an institution from
making a decision, the Court did not repudiate the adjudicative
due process standard applied by the Appellate Court.
89—5()
—7—
Petitioner alleges that the hearing process was
fundamentally unfair due to a predisposition of County members to
vote against the application. Specifically, Petitioner argues
that because a majority of the County members already voted
against the application without considering the evidence adduced
at hearing, they were predisposed to vote against it the second
time it came before them. As further support for his position,
Petitioner states that the Resolutions of February 3, 1987 and
October 13, 1987 are in substance “identical”, indicating that
the County did not consider the evidence prior to its second vote
on the application. Petitioner also alleges that a certain
statement made by County Board member Brown just prior to the
second vote on the application indicates that he prejudged the
facts as well as the law in the matter.
As noted previously in this opinion, the Board in Ash I
found that the County had failed to give adequate consideration
to the record before it and remanded the matter to the County for
reconsideration and rectification of the fundamental fairness
problem. The Board affirms its prior analysis and findings
regarding fundamental fairness as stated in Ash I and finds it
unnecessary to repeat those here except to note the standard
which the Board used to determine whether the County considered
the evidence:
The Board’s analysis of whether the County
adequately “considered” the evidence adduced at
hearing will involve consideration of two questions:
First, whether the transcripts were reasonably
available such that it can be said that the County
Board members had an opportunity to review them, and
second, whether overall the County members were
sufficiently exposed to the record to support a
finding that they “considered” the evidence within
it.
Ash I at 11.
In the instant review, the Board must determine whether the
County’s actions pursuant to remand indicate that the subsequent
proceedings were conducted in a fundamentally fair manner with
due process afforded Petitioner.
County correctly points out that the County minutes of
September 8, 1987 state that the Committee suggested that each
County member examine the transcripts and exhibits of the Ash
Landfill that were available at the office of John Kuntz, County
Clerk (Resolution at C—82). Further, it was stipulated at the
January 21, 1988 hearing that the actual exhibits in this
proceeding were sent to the County from the Appellate Court in
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September 1987 (PCB 2 at 36)~. It is evident that the transcripts
and exhibits were reasonably available such that it can be said
that the County members had an opportunity to review them, and
that they were sufficiently exposed to the record to support a
finding that they “considered” the evidence within it, prior to
the October 1987 vote on the application.
The similarity of the two resolutions (they are not
“identical” in substance) does not support a finding that the
County prejudged the application. The record indicates that the
Committee, which drafted both resolutions, discussed the
application at meetings held August 19, 1987, September 29, 1987,
and October 13, 1987, prior to making its recommendations to the
full County Board (Resolution at C—82, 86). The Board in Ash I
recognized the fact that the County’s second vote on the
application “may or may not reflect its earlier vote” (Ash I at
13). The Board believes that it is reasonable, after a proper
review of the evidence, that the County could reach conclusions
which would not necessitate extensive revision of the
resolution
Lastly, Petitioner alleges that County Board member Arthur
Brown told Petitioner at the September 29, 1987 meeting of the
Regional Pollution Control Committee that “You don’t think that
the County is about to let you have this landfill after we have
already spent $15,000 fighting it?” Petitioner argues that this
statement is indicative of the predisposition of County Board
members to vote against the application. Arthur Brown testified
at the Board hearing on January 21, 1988 that he “might have”
made the statement to Petitioner (PCB 2 at 15). However, he
further testified that prior to his vote he had considered the
evidence and exhibits pertaining to the application several times
~ Transcripts of the 1/21/88 hearing before this Board are
referenced herein as PCB 2 at
_________;
transcripts of the
hearings before the County will be referenced by the date and
page number. Thus, for example, “T. 11/18/86 at 6” cites to page
6 of the November 18 hearing. Petitioner’s and Objector’s
Exhibits will be cited as PX
____;
and OX
____;
respectively.
8 Petitioner also pointed to the fact that the October 1987
Resolution contains jurisdictional arguments previously disposed
of by this Board in Ash I as further evidence that the
Resolutions are “identical”. The Board notes that the October
1987 Resolution contains language which acknowledges this Board’s
prior decision on the issue, however, the Resolution further
states that the County “still wished to make the jurisdictional
argument part of this resolution” (Resolution at C—88). The
Board affirms its prior decision on the jurisdictional issue as
stated in Ash I.
89—58
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(PCB 2 at 16). When asked whether his vote of October 1987 was
based on the money that the County spent or the evidence that was
presented in the case, Mr. Brown responded that his vote was
based on the “evidence only” (PCB 2 at 17).
In Waste Management of Illinois, Inc. v. Lake County Board,
PCB 87—75, the Board discussed the issue of prejudgment by
elected officials, citing several cases and Board precedent:
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 Il1.App.3d 105, 504 N.E.2d 166 (1st Dist.
1987):
In addressing this issue, we note that it
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.
Morqai~
(1941), 313 U.S. 409, 421, 85 L.
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), 333 U,S. 683, 92 L. Ed.
1010, 68 S. Ct. 793).
504 N.E.2c3 at 171.
The Board has also addressed the application of
the above standards in a landfill siting case:
Although the First District’s Statement in
Citizens for a Better Environment was made
during the judicial review of a rulemaking,
the Board believes that the statement still
has considerable value in this proceeding
which is a review of a quasi—judicial
decision. The cases cited in the above
Passage concern decisions which were
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reviewed on the basis of adjudicatory
standards. City of Rockford v. Winnebago
County Board, PCB 87—92, November 19, 1987,
at 24.
Waste Management of Illinois Inc. v. Lake County Board,
PCB 87—75, December 17, 1987 at 15.
The Board believes that Petitioner’s allegations do not
overcome the presumption that the County acted on the merits of
Petitioner’s application without prejudging the law or facts.
The record indicates that on remand from this Board, the County
members 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
Petitioner’s landfill siting application in a fundamentally fair
manner.
STATUTORY CRITERIA
Ash next contends that the County’s decision is contrary to
the manifest weight of the evidence and that the decision should
be reversed and the siting application approved. Ash claims that
he has satisfied the statutory criteria contained in Section 39.2
of the Act, contrary to the County’s position that Petitioner has
met none of the criteria.
Criterion #1
Petitioner presented one main witness on the issue of need,
Mike Watson, a waste hauler who has apparently contracted to run
the proposed landfill for Ash. Watson testified that the
landfill would be good for increased competition, and would be
centrally located within the county. Ash testified that there
are open dumps in the area of the proposed landfill (T. ll/25,’86
at 17—22), and inferred that the approval of his application
would eliminate open dumping problems (Ash Brief at 31, 33—2).
Watson also testified from his conversations with operators,
and his observations and experience as a hauler, regarding the
Capacity of available landfills. He said that there are two
landfills which service Iroquois County: the KID Landfill in
Kankakee and the Bryce Landfill in Iroquois County. He then
stated that in his opinion the KID Landfill site is half filled
and has about a ten year remaining life, and the Bryce Landfill
would be filled in approximately 15 years (T. 11/24/86 at 50
7). He further noted that the Agency permit application for the
KID Landfill indicated an expected useful life of 20 years for
the facility in 1974, and that the facility opened in 1975 (PX
23; T. 11/24/86 at 52). He said that the Bryce Landfill services
Kankakee, Iroquois, Vermilion and Ford Counties in Illinois and
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accepts waste from Indiana. He did not say what percentage of
waste comes from areas other than Iroquois County and did not
know the total volume of waste Iroquois County generates (T.
11/24/86 at 92—3, 82).
Watson testified that the proposed facility is necessary to
accommodate the waste needs it is intended to serve (T. 11/24/86
at 59), but also testified that if there are no major changes in
waste influx, a ten year reserve capacity is sufficient or
adequate to meet the service area’s need. (T. 11/24/86 at 95—6).
Objector’s witness, John Thompson, testified that he is
Executive Director of Central States Education Center and Central
States Resource Center, two not—for—profit environmental groups
based in Champaign, Illinois, and has worked on a number of
landfill sitings and existing sites in Illinois (T. 12/1/86 at 8,
11). Thompson testified that he conducted an inventory of the
landfills in Iroquois County and those of surrounding areas which
could take Iroquois County waste. His information as compiled
includes the landfill name, location and Agency site number, the
annual volume in cubic yards, the remaining life in years, the
anticipated year of closure, and the calculated reserve capacity
in cubic yards (OX 2). He then divided the service area into
primary and secondary service areas based upon the economically
reasonable driving distance for waste generated in the area of
the landfill sites. Secondary service area sites such as those
in Champaign and Vermilion Counties were considered, although
farther from the source, because of the potential for some of the
waste from these areas to come to the landfills which are
currently used by Iroquois County and due to their potential for
use by Iroquois County (T. 12/1/86 at 20—4; OX 3). Thompson
testified that he derived his information regarding annual volume
of waste and remaining site life from Agency financial assurance
documents which are certified as accurate (T. 12/1/86 at 19).
However, it is worth noting that Objectors did not offer into
evidence the actual Agency records or copies thereof. Thompson
testified that other sources of information include contacting
the site operator and utilization of surveying techniques (T.
12/1/86 at 93).
Thompson’s information inter alia indicates that the Bryce
or Milford Landfill has a remaining life of 40 years, that the
Kankakee or KID Landfill has a remaining life of 17 years, that
the primary and secondary service areas have 19 and 23 years of
remaining capacity, respectively, and that the total service area
has 23 years remaining life (OX 3). At hearing before the
Committee, Thompson calculated the remaining life of the primary
service area if the life of the Bryce Landfill were 15 years,
which resulted in a capacity for the primary area of about 15
years (T. 12/1/86 at 127—31; 160). Thompson also agreed with
Watson that a 10 year reserve capacity is sufficient. Thompson
89—61
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concluded that the proposed facility is not necessary for the
area it is intended to serve (T. 12/1/86 at 40).
Both Petitioner’s and Respondent’s witnesses agree that the
only other landfill in Iroquois County, the K&H Landfill in
Donovan, has an estimated remaining life of five years (PX 25; T.
11/24/86 at54; OX 2 and 3). However, Thompson testified that
the current owner of the site, Tom Van Wheeldon, has closed the
site due to insufficient volume, and that the Agency permits
remain active should the owner decide to reopen the site (OX 2,
3; T. 12/1/86 at 77). Watson also reported that the site was
closed, but stated that he did not inquire as to why it was
closed. He said he was unaware that the site was closed because
it was not currently needed (T. 11/24/86 at 98—9).
Thompson testified that he believes competitive pricing for
landfills exists in Iroquois County. As support for his belief,
Thompson stated that the tipping fees in the area are already
fairly low relative to the rest of the state (T. 12/1/86 at 46).
The County in its evaluation of the application under
criterion #1 noted that the remaining capacity for landfills in
Iroquois County was between 15 and 40 years. The County placed
weight on Objector’s witness citing his figure for the remaining
life of the Kankakee Landfill (17 years). The County included
the Donovan Landfill in its consideration noting that it has an
“estimated remaining life of five years.” The County then stated
that “experts from the applicant and the Objectors agree that
need is not established when reserve capacity is in excess of 10
years” (Resolution at 88).
The County dismissed the applicant’s assertions regarding
the benefits of competition, noting that tipping fees are low, in
apparent reliance on the statements of Objector’s witness to that
fact. The County further found that “a reduction in fees does
not establish need” (Resolution at C—89). As to the applicant’s
assertions that the proposed facility would eliminate open
dumping problems, the County stated that these sites exist
despite numerous free dumpsters made available by Iroquois County
(Resolution at C—89). The County based its determination on the
foregoing facts and found that the applicant did not adequately
or satisfactorily demonstrate that the facility is necessary to
accomodate the waste needs of the area it is intended to serve.
Petitioner and Respondent cite case precedent covering
criterion ~l reviews. The Second District Appellate Court has
defined the term “necessary” to mean that the applicant does not
have to show that a proposed facility is absolutely necessary,
but only that the proposed facility is “expedient” or “reasonably
convenient” to the area’s waste needs. B
&
B Hauling, supra,
Citing Foster and Kleiser v. Zoning Board of Appeals, 38 III.
89—62
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r~pp. 3d 50, 347 N.E.2d 493 (l976)~. The Third District Appellate
Court has further stated that for a facility to be “necessary”
the applicant must show that the proposed facility is reasonably
required by the waste needs of the area intended to be served,
taking into consideration the waste production of the area and
the waste disposal capabilities, along with other relevant
factors. Waste Management of Illinois, Inc. v. Illinois
Pollution Control Board, 122 Ill. App. 3d 639, 461 N.E. 2d 542
(1984). The Second District later found that “expedient”
connoted an element of urgency, and that “reasonable convenience”
requires an applicant to show more than mere convenience. Waste
Management of Illinois, Inc. v. Pollution Control Board, 123 Ill.
App. 3d 1015, 463 N.E. 2d 969 (1984). The Board notes that in
Waste Management the court held that need for a landfill
expansion had not been demonstrated where existing available
facilities could handle the waste production for 10 years. The
Board also notes that in Waste Management of Illinois v.
Pollution Control Board, 122 Ill.App. 3d 639 (1984), the court
also held that need had not been demonstrated where existing and
available landfills were sufficient to handle waste production
for over 10 years.
The Board finds that the Petitioner has not demonstrated
that the County’s decision was contrary to the manifest weight of
the evidence. The County could have reasonably concluded that
between 15 and 40 years of existing reserve Capacity along with
the other factors listed above do not constitute an element of
urgency or that the proposed facility would be more than merely
convenient, as interpreted by the courts.
Having found that the County decision on Criterion #1 was
not against the manifest weight of the evidence, the Board must
affirm the County’s decision to deny the Petitioner’s
application. In as much as the Criterion #1 ruling is also
dispositive of the case, the Board will and need not go further
in its analysis.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
The Supreme Court, although it affirmed the Second District’s
decision regarding the six statutory criteria, it did not
additionally discuss the issue of need or the criterion #1
review.
89—63
—14—
ORDER
The October 13, 1987, decision of the Iroquios County Board
denying site—suitability approval to John Ash, Sr., for
Petitioner’s proposed landfill is hereby affirmed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 111 1/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Members Joan Anderson and J. Theodore Meyer concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board? hereby certify that the abov~Opinion and Order was
adopted on the
.S~-
day of
~
,
1988, by a
vote of
7—c)
—.
12~.
Dorothy M. nn, Clerk
Illinois Pollution Control Board
89—64
