ILLINOIS POLLUTION CONTROL BOARD
June 16, 1988
LAIDLAW WASTE SYSTEMS, INC.
Petitioner,
V.
)
PCB 88—27
THE MCHENRY COUNTY BOARD,
Respondent.
SAM VINSON, KAREN P. FLYNN, CHRISTOPHER W. ZIBART, TODD R.
WEINER, OF HOPKINS & SUTTER, APPEARED ON BEHALF OF THE
PETITIONER.
DAVID R. AKEMANN AND WILLIAM F. BARRETT, SPECIAL ASSISTANTS
STATE’S ATTORNEY FOR MCHENRY COUNTY, APPEARED ON BEHALF OF THE
RESPONDENT.
RICHARD G. FLOOD AND ANDRE T. FREUND, OF ZtJKOWSKI, ROGERS, FLOOD
& MC ARDLE, APPEARED ON BEHALF OF THE VILLAGES OF LAKE IN THE
HILLS AND ALGONQUIN AS AMICtJS CURIAE.
RICHARD W. COSBY, SPECIAL ASSISTANT STATE’S ATTORNEY FOR MCHENRY
COUNTY APPEARED ON BEHALF OF THE PEOPLE OF MCHENRY COUNTY AS
AMICUS CURIAE.
OPINION AND ORDER OF THE BOARD (by 3. Marlin):
This matter comes before the Board on a Petition for Hearing
filed by Laidlaw Waste System, Inc. (Laidlaw) on January 27,
1988. Specifically, Laidlaw appeals the January 21, 1988
decision of the McHenry County Board (County Board) which,
pursuant to Section 39.2 of the Illinois Environmental Protection
Act (Act), denied Laidlaw’s application for site location
suitability approval concerning a proposed, new regional
pollution control facility. Laidlaw challenges the County
Board’s finding that Laidlaw failed to meet its burden of proof
concerning criteria 2, 3, and 6 as set forth by Section 39.2(a).
After reviewing the record, given the manifest weight
standard of review, the Board must affirm the County Board’s
decision
Requirements for the siting of new regional pollution
control facilities are specified in the Act. Section 39(c) of
the Act provides that ~tnopermit for the development or
construction of a new regional pollution control facility may be
granted by the tEnvironmental Protection Agency unless the
applicant submits proof to the Agency that the location of said
90—13 5
2
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 be~orethe County
Board, Section 39.2 provided in pertinent part
a) The county board too shall approve the site location
suitability for such new regional pollution control
facility only in accordance with the following criteria:
1) The facility is necessary to accomodate the waste
needs of the area it is intended to serve;
2) the facility is so designed, located and proposed
to be operated that the public health, safety and
welfare will be protected;
3) the facility is located so as to minimize
incompatibility with the character of the
surrounding area and minimize the effect on the
value of the surrounding property;
4) the facility is located outside the boundary of the
100 year flood plain or the site is flood proofed;
5) the plan of operations 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.
Before making its decision, the County Board held 16
hearings during June of 1987 and 9 hearings in November and
December of 1987. These hearings generated a transcript of 3833
pages. In addition, the County Board admitted over 180
exhibits. One of those exhibits, H.O. 87—90, includes portions
of the record from previously held hearings conducted by the
County Board regarding another Laidlaw application, which had
1 Criterion #7, which applies to facilities that will accept
hazardous waste, did not apply in the instant situation since
Laidlaw’s proposed facility would not accept hazardous waste.
Criterion #8 was added by P.A. 85—863 which became effective on
September 24, 1987. This criterion concerns “regulated recharge
areas” which are yet to be determined by the Board pursuant to
Section 17.4 of the Act. In addition, the Board notes that
another criterion was added by P.A. 85—945; however, that
provision which concerns solid waste management plans, does not
become effective until July 1, 1988.
90—136
3
been filed within the County Board on August 5, 1985. This one
exhibit alone includes 26 hearing transcripts, totalling 6478
pages, and over 180 exhibits from the 1985 proceeding.
At its last hearing in June of 1987, the County Board
granted leave to Laidlaw to file an amended application. As a
result, a second set of hearings were held on the amended
application during November and December. This generated
additional pages of transcript. For clarity, citations to the
transcripts will be denoted as follows: 1985 Hearings——RI; 1987
June Hearings——RII; 1987 November and December Hearings——RIlI.
The Board notes that two other applications were filed by Laidlaw
in 1985 and withdrawn due to notice problems. (R. III, 25).
By its Order of March 10, 1988, the Board granted leave to
the Village of Algonquin and the Village of Lake in the Hills
(collectively, “the Villages”) to allow the Villages to
participate in this matter as an amicus curiae. Similarly, on
March 24, the Board granted leave to the McHenry County’s State
Attorney to file an amicus brief on behalf of the People of
McHenry County.
The Board held its own hearing in this matter on March 25,
1988. That hearing generated a transcript of 23 pages, and one
exhibit was admitted. It will be cited as “3d R.”
On April 8, 1988, the County Board filed a Motion to
Strike. Specifically, the County Board requests that the Board
strike from Laidlaw’s brief, filed on April 1, the sections
entitled “Introduction,” “Heart of the Case,” and “Standard of
Review.” The County Board contends that these sections contain
allegations of fact that are not based on the record. In
addition, the County Board claims that the allegations are not
relevant to this proceeding since they go to the issue of
fundamental fairness which Laidlaw has not challenged.
Laidlaw did not file a response to the County Board’s
motion. However, it did address the County Board’s motion in its
Reply brief. Laidlaw asserts that its appeal does not challenge
the fundamental fairness of the procedures utilized by the County
Board. It is Laidlaw’s position that its original brief merely
sought to show that the County Board’s decision is against the
evidence of the record.
The Board denies the County Board’s motion. it is clear
that Laidlaw is not alleging that the County Board’s decision was
the result of a fundamentally unfair process. Also, the Board is
able to determine and exclude from its consideration material
cited in briefs which is outside the record and not of the type
which the Board may take official notice. Waste Management of
Illinois v. Lake County Board, PCB 87—75, slip. op. at 3
(December 17, 1987).
90—13 7
4
On May 25, 1988, Laidlaw filed a Motion for Leave to File
Additional Brief and For Oral Argument (Motion). Laidlaw bases
its Motion upon remarks made by Board Member Marlin during the
Board’s public discussion of this matter at the Board meeting of
May 19, 1988. Laidlaw claims that these comments indicate that
the Board is “confused about the relevance of testimony from the
earlier two jsets of hearings to Laidlaw’s final amended
application.” Laidlaw further states:
Confusion over which testimony is relevant
could lead the Board once again to feel
constrained to affirm a county board
denial. This would be unfortunate here,
because the Board would be ignoring the
unique opportunity to approve a landfill on
the merits.
Laidlaw suggests that it could clear up this “confusion”
with an additional brief and oral argument.
The Villages filed a Response to the Motion on May 31,
1988. The Villages do not have party status in this matter; they
participate only as amicus curiae. The filing of a response to
Laidlaw’s Motion exceeds the Village’s limited role in this
proceeding. As a result, the Board has not considered the
Villages’ Response.
The County Board requests that the Board deny Laidlaw’s
Motion in the Objection it filed on June 6, 1988. In its
Objection, the County Board states:
Merely because one member comments on one
Small aspect of a large record does not
mandate or even suggest that the entire Board
has not considered the entire record and will
decide the case accordingly.
If the
Petitioner feels that the case has been
decided incorrectly, there still remain other
avenues which the Petitioner could pursue
including appeal.
Petitioner’s motion, if granted, may create a
chilling effect upon discussion at this
Board’s open meetings and would encourage a
steady stream of requests for additional
briefs on subjects that members of this Board
must comment upon. Such untimely requests
would hinder a prompt determination by the
Board and make arriving at a decision an even
more arduous task.
The Board is in complete agreement with the County Board’s
position on this point. Consequently, the Board hereby denies
90—138
5
Laidlaw’s Motion. However, the Board is compelled to state that
it does not feel “confused” by the record. Although the record
in this matter is enormous, and naturally more difficult to
review, such bulk has not clouded the Board’s analysis of the
issues. In addition, Laidlaw seems to suggest that the Board
must seize upon the opportunity to approve a landfill on the
merits of a proposal. The Board’s sole role in the landfill
siting process is to review a county board’s decision on a
manifest weight standard. This is the only directive for Board
action in proceedings such as this. It is not the responsibility
of the Board to site landfills; rather, such decisions lie with a
county board.
Review of Local Decisions
Pursuant to Section 40.1 of the Act, the Board must review a
site location suitability decision in two ways. First, the Board
must determine whether the county, or unit of local government,
rendered its decision in a fundamentally fair manner. If the
Board concludes that the local decision was the result of a
fundamentally fair process, then the Board may substantively
review the record below to determine whether the decision is
against the manifest weight of the evidence. If the local
decision is against the manifest weight of the evidence, the
Board must reverse that decision; if it is not, the Board must
affirm. E&E Hauling, Inc. v. Pollution Control Board, 116 Ill.
App. 3d 586, 451 N.E.2d 555 (1983) aff’d in part 107 Ill. 2d. 331
481 N.E.2d 669.
The standard of review, imposed by the courts upon the
Board, requires that a significant amount of deference be given
to the findings of the county board. The manifest weight
standard of review gives a county board’s findings the respect
customarily accorded fact findings by administrative agencies.
E&E Hauling, Inc. v. Pollution Control Board, 116 111. App. 3d at
608. This standard is “consistent with the legislative intent to
grant local authorities the power to determine the site location
suitability of a proposed new regional pollution control
facility.” Waste Management of Illinois, Inc. v. Illinois
Pollution Control Board, No. 2—87—0029, slip. op. at p. 10
(September 11, 1987). Indeed, “the County board does have the
authority to consider any and all of the technical details
associated with the landfill siting decision.” Waste Management
of Illinois, slip. op. at 6. While the Board’s own “technical
expertise and informed knowledge is relied on in its review of
county board findings involving technical matters,” (Waste
Management of Illinois, slip. op. at 11), it is clear that the
Board may not substitute its own judgement for that of the county
board’s.
The Board explained the application of the manifest weight
standard in Waste Management of Illinois v. Mdflenry County Board,
?CB 86—109, slip. op. at 12 (December 5, 1986), aff’d, Waste
90— L 39
6
Management of Illinois v. Illinois Pollution Control Board,
Illinois Appellate Court No. 2—87—0029 (2d Dist., September 11,
1987):
The Illinois Appellate Court has recently stated:
A verdict is said to be against the manifest
weight of the evidence where it is palpably
erroneous, wholly unwarranted (citations
omitted), is clearly the result of passion or
prejudice (citations omitted), or appears to
be arbitrary, unreasonable, and not based
upon the evidence (citations omitted). A
verdict cannot be set aside merely because
the jury in this case, the County Board
could have drawn different inferences and
conclusions from conflicting testimony or
because reviewing court in this case, the
Board would have reached a different
conclusion if it had been the trier of
fact. (citations omitted). When considering
whether a verdict was conrary to the manifest
weight of the evidences, a reviewing court
must view the evidence in the light most
favorable to the appellee (citations
omitted).
Steinberg v. Petra, 139 Iii. App. 3d 503,508 (1986).
Consequently, if, after reviewing the record, the
Board finds that the County Board could have
reasonably arrived at its conclusions, then the
County Board’s findings must be affirmed.
Jurisdictional Issues
However, before the Board embarks on a review of the local
authority’s decision concerning the fundamental fairness or
manifest weight of the evidence, the Board must first address any
allegations that the local authority lacked jurisdiction to make
a decision. Courts have held that notice requirements contained
in Section 39.2(b) of the Act are jurisdictional and must be
followed in order to vest the county board with the power to hear
a landfill proposal. Kane County Defenders, Inc. v. Pollution
Control Board, 139 Ill. App. 3d 588, 487 N.E.2d 743 (2d Dist.
1985); Browning—Ferris Industries, Inc. v. Illinois Pollution
Control Board, No. 5—86—0292,
Ill. App. 3d
,
N.E.2d
(5th Dist. 1987); Concerned Bo~e Citizens, In~ v. M.I.G.
Investments, Inc., 144 Ill. App. 3d 344, 494 N.E.2d 180 (2d Dist.
1986); The Village of Lake in the Hills v. Laidlaw Waste Systems,
Inc., lT~Ill. App. 3d 285, 492 N.E.2d 969 (1986); See also
McHenry County Landfill, Inc. v. Environmental Protection Agency,
154 Iii. App. 3d 89, 506 N.E.2d 372 (2d Dist. 1987) (Although th~
90—140
7
Second District found that the requirements of Section 39.2(b)
were jurisdictional, the Board’s own failure to provide notice in
accordance with Sectin 40.1 was not jurisdictional).
In the Villages’ Amicus Curiae Brief, the Villages raise
five specific objections on the question of the County Board’s
jurisdiction to decide Laidlaw’s application for site—location
suitability approval. Three of these points involve allegations
that the notice requirements of Section 39.2(b) have not been
fulfilled and hence that the County Board lacked jurisdiction.
Section 39.2(b) of the Act provides:
No later than 14 days prior to a request for
location approval the applicant shall cause
written notice of such request to be served either
in person or by registered mail, return receipt
requested, on the owners of all property within
the subject area not solely owned by the
applicant, and on the owners of all property
within 250 feet in each direction of the 1~tline
of the subject property, said owners being such
persons or entities which appear from the
authentic tax records of the County in which such
facility is to be located; provided, that the
number of all feet occupied by all public roads,
streets, alleys and other public ways shall be
excluded in computing the 250 feet requirements;
provided further, that in no event shall this
requirement exceed 400 feet, including public
streets, alleys and other public ways.
Such written notice shall also be served upon
members of the General Assembly from the
legislative district in which the proposed
facility is located and shall be published in a
newspaper of general circulation published in the
county in which the site is located. Such notice
shall state the name and address of the applicant,
the location of the proposed site, the nature and
size of the development, the nature of the
activity proposed, the probable life of the
proposed activity, the date when the request for
site approval will be submitted to the county
board, and a description of the right of persons
to comment on such request as hereafter provided.
Ill. Rev. Stat. 1986 Supp., ch. 111½, par. 1039.2(b)
The Village’s first two contentions concern Laidlaw’s
service of notice of the amendment to its application. That is,
these allegations do not involve the service of notice in
Conjunction with Laidlaw’s February 27, 1987 filing of its
request for site—location suitability approval.
90—141
B
The Villages assert that some individuals were served notice
by “leaving a copy of the Notice with a person who purportedly
resided with the property owner sought to be served.” According
to the Villages, this service was defective, because Laidlaw,
“did not attempt supplemental service by registered mail or make
a subsequent attempt at service.” The Villages state that
personal service is only accomplished when the person to be
served receives the notice in hand. The type of service utilized
by Laidlaw, according to the Villages, does not comport with the
requirements of Section 39.2(b) of the Act. Laidlaw counters
that such service is consistent with the Act.
The second notice allegation arises out of Laidlaw’s failure
to serve or attempt to serve notice of the amended application
upon Randy Schafer, who had recently acquired parcel No. 19—28—
129—009. The Villages contend that Schafer’s name was placed on
the official tax rolls of the County on May 20, 1987 by manually
writing his name on a computer print—out sheet. The Villages
state that Laidlaw attempted to effectuate service for the
amendment on July 15, 1987. In response, Laidlaw asserts that
the handwritten entry of Randy Schafer, even if in existence at
the time of Laidlaw’s service of notice, did not constitute an
official entry onto the County’s tax rolls. Laidlaw states that
it did serve the Administration of Veteran Affairs which Laidlaw
claims was the owner of the parcel and which appeared on the
authentic tax records of the County at the time Laidlaw gave
notice of its amendment.
Generally, it is Laidlaw’s position that the Act does not
require service of notice for an amendment to an application,
although Laidlaw had agreed to serve notice of the amended
application on all who would be entitled to receive notice if it
were considered a new request.
The underlying assumption of the Villages’ position is that
an amendment to an application for site location suitability
approval must be noticed pursuant to Section 39.2(b) of the Act
before the county is vested with jurisdiction to decide the
amended application.
Section 39.2(b) requires that notice be served “14 days
prior to a request for location approval.” This subsection of
the Act does not expressly address the situation of an amendment
to an application. None of the court cases which held that the
notice requirements were jurisdictional involved the noticing of
an amendment to an application.
The legislature recently addressed the issue of amending an
application in P.A.85—945 which will become effective on July 1,
1988. Specifically, the legislature added the following language
to Section 39.2(e):
90—142
9
At any time prior to completion by the applicant
of the presentation of the applicant’s factual
evidence and an opportunity for cross—questioning
by the county board or governing body of the
municipality and any participants, the applicant
may file not mote than one amended application
upon payment of additional fees pursuant to
Section 39.2(k) of the Act. Provided, however,
that the time limitation for final action set
forth in Section 39.2(e) of the Act shall be
extended for an additional period of 90 days.
Ill. Rev. Stat. 1982, ch. 111 ~/2
,
par. 1039.2(e)
It is apparent that in addressing the issue of amendments to an
application, the legislature has remained silent as to noticing
requirements.
In short, the Act does not expressly require that an
amendment to a landfill siting application be noticed according
to the rigid provisions of Section 39.2(b). In addition, the
Courts have not construed the Act as imposing such a requirement.
The Illinois Supreme Court has held that courts “cannot
inject provisions not found in a statute, however desirable or
beneficial they may be.” Droste v. Kerner 34 Ill. 2d 495, 217
N.E.2d 73, 79 (1966). The Board believes that it should follow
that rule in this case. Consequently, the Board holds that the
Act does not require an applicant to notice an amendment to its
application pursuant to Section 39.2(b). The strict notice
requirements of Section 39.2(b) apply to the initial request for
site—location suitability approval. The applicant must comply
with that provision in order for jurisdiction to vest. This
jurisdiction is not divested by subsequent attempts at noticing
an amended application. However, fundamental fairness requires
that a reasonable attempt to inform the public of amendments and
hearings on them must be undertaken.
Previously, the Board has addressed the issue of application
amendment in terms of the fundamental fairness issue. The Board
notes that neither the Villages nor Laidlaw have alleged that the
County Board’s decision was the result of a fundamentally unfair
process.
In McHenry County Landfill, Inc. v. County Board of McHenry
County, PCB 85—56, 65 PCB 487, 490—92 (September 20, 1985), the
Board reviewed a ruling by a hearing officer at a county
hearing. The hearing officer had excluded evidence which he
believed constituted a defacto or express amendment to the
application. The Board concluded that the exclusion was not
fundamentally unfair. While the Board did discuss the notice
requirements and their value in informing the public about the
substance of the application, the Board did not conclude that an
amendment had to be noticed according to Section 39.2(b).
90—143
10
Similarly, in Waste Management of Illinois v. Lake County
Board, PCB 87—75, slip. op. at 9—10 (December 17, 1987) the Board
reviewed a county ordinance, which prohibited amendments, in a
fundamental fairness context. After citing its own decision in
McHenry County Landfill, the Board concluded that the petitioner
had failed to show that the ordinance was fundamentally unfair.
As with McHenry County Landfill, the Board did not conclude that
an amendment would require full noticing pursuant to Section
39.2(b).
Consequently, any notice requirements for Laidlaw’s
amendment, which were imposed by the County Board, relate to the
matter of fundamental fairness not jurisdiction.
On June 30, 1987, the County Board ordered that Laidlaw
notice its application amendment as a condition for allowing the
amendment. The Board has held that a local authority may develop
procedures in order to conduct hearings and to ensure fundamental
fairness of the process. Waste Management of Illinois v. Lake
County Board, PCB 87—75, slip. op. at 8—9 (December 17, 1987).
It is the Board’s role to address any allegation that such
procedures were fundamentally unfair. No person has contended
that the County Board’s notice requirement concerning Laidlaw’s
amendment was fundamentally unfair. The only complaint arising
out of the notice issue comes from the Village’s assertion that
Laidlaw failed to meet the notice requirement for the amendment
and that the County Board lacked jurisdiction.
However, the Villages also do not assert that actions of
Laidlaw resulted in a fundamentally unfair process. It must be
emphasized that the notice requirement for Laidlaw’s amendment
originates with the County Board and not the Act. Evidently, the
County Board is satisfied with Laidlaw’s actions concerning the
service of notice of the amendment. In its post hearing brief
before the Board, the County Board asserts that the type of
service employed by Laidlaw, that is leaving notice with a person
who resides with the person intended to be served, was
sufficient. Also, the County Board contends that at the relevant
time of service, July 1987, the authentic tax records of the
County did not include Randy Schafer as owner of parcel No. 19
28—129—009. According to the County Board, failure to serve
Randy Schafer was not improper.
In summary, no one has alleged that Laidlaw’s actions in
attempting to meet the County Board’s notice requirement for the
amendment rendered the County Board’s hearing process
fundamentally unfair. The Board finds that Laidlaw made a good
faith effort to comply with the County Board’s order. The County
Board takes the position that Laidlaw did indeed comply. Given
all the circumstances, the Board finds that Laidlaw’s service of
notice of the amended application did not result in a
fundamentally unfair process. The Board cautions, though, that
0—144
11
its conclusion regarding Laidlaw’s actions for service of notice
applies only to an evaluation as to fundamental fairness. The
Board’s decision today does not address the issue of whether
Laidlaw’s actions were in accordance with the jurisdictional
notice requirements imposed by Section 39.2(b) that would apply
to an initial application.
The Village’s third contention concerning notice deals with
the description of the site contained in the notice. According
to the Villages, the County Board lacked jurisdiction because the
legal descriptions of the proposed site in the notices for the
original and amended application were in error. Specifically,
the Villages assert that the legal description included portions
of a road which is actually within the Village of Lake in the
Hills, not unincorporated McHenry County. Also, the Villages
assert that the narrative portion of the description failed to
state that certain portions o~the “site” were located in the
Village of Lake in the Hills.
Laidlaw responds that given the recent decision by the
Illinois Appellate Court, Fifth District in Daubs Landfill, Inc.
V.
Illinois Pollution Control Board, No. 5—87—0198, slip. op.
(5th Dist. February 19, 1988), the narrative descriptions found
in Laidlaw’s notices were sufficient for the purposes of Section
39.2(b).
For reasons already stated, the Board need not look at the
notice for the amended application to determine whether the
requirements of 39.2(b) were fulfilled. The only relevant
consideration is the description of the location which appeared
in Laidlaw’s notice concerning the initial request for site
location suitability approval which was filed with the County
Board on February 27, 1987.
In Daubs Landfill, the Fifth District reversed the Board’s
conclusion that an error in a legal description rendered the
notice defective. The court found that a notice is proper if it
contains a narrative description which sufficiently apprises
adjoining landowners and the general public of the location of
the proposed site. Daubs Landfill, slip. op. at 6.
Laidlaw’s notice for the site approval request it filed on
February 27, 1987, included the following narrative description:
2 The Village argues that since Laidlaw has promised improvements
to Pyott road and the relocation of Lake in the Hills Well No. 6,
if necessary, then Pyott Road and Well No. 6, although located in
the Village of Lake of the Hills, are a part of Laidlaw’s
Proposed “site.” This argument is addressed later.
90—14 5
12
The proposed site consists of a parcel containing
159.1579 acres located East of Pyott Road, West of
the abandoned Chicago and Northwestern Railway
right of way, having a southerly property line
approximately 350 feet North of the intersection
of Pyott Road and Algonquin/Huntley Road, in
Algonquin Township, McHenry County, Illinois. The
subject site is approximately 4550 feet from its
southerly property line to its northerly property
line which is contiguous to the Larsen Industrial
Park.
(H.O. Exh. 87—1)
The Board finds that this description meets the standard
enunciated in Daubs Landfill therefore, Laidlaw’s notice was not
defective because of its description of the location of the
proposed site. In addition, Laidlaw appears to have complied
with all other requirements for the content of the notice which
are imposed by Section 39.2(b). Also, for the same reasons set
forth below, Laidlaw’s notice did not need to state that part of
the proposal involved items located in the Village of Lake in the
Hills.
The fourth jurisdictional issue raised by the Village
involves Laidlaw’s proposals to 1) make improvements to Pyott
Road and 2) relocate a municipal drinking water well——well
No. 6——if it becomes contaminated. Both Pyott Road and Well No.
6 are located in the Village of Lake in the Hills. The Villages
contend that as a result of Laidlaw’s promises, Pyott road and
Well No. 6 should be considered part of Laidlaw’s “site.” Next,
it is argued that the McHenry County Board does not have
jurisdiction to decide these aspects of Laidlaw’s proposal, since
Pyott Road and Well No. 6 are not located in unincorporated
McHenry County. The Villages conclude that references to the
road improvements and well relocation should be stricken from the
record, since these features are not within County Board~s
jurisdiction for landfilling siting decisions. That is,
according to the Villages, the Board should not consider these
matters in evaluating the County Board’s decision with regard to
the manifest weight standard.
In response, Laidlaw states that the Villages are improperly
using the statutory definition of the term “site” in an attempt
to create a jurisdictional issue. According to Laidlaw, this
definition should not be transferred to the site location
approval process. It is maintained by Laidlaw that Pyott road
and Well No. 6 are not a part of the landfill facility that
Laidlaw is proposing. That notwithstanding, Laidlaw asserts that
the County Board could properly consider Laidlaw’s proposals
concerning the road and the well. In other words, Laidlaw
contends that since the site location suitability process
involves consideration such as safety, off—site factors may and
should be considered.
90—146
13
The Board generally agrees with Laidlaw. The Villages’
position appears to comingle two concepts that are distinct in
the Act. The first is the issue of determining which local
authority has jurisdiction over the proposed facility. The
second, concerns a local authority’s evaluation of the proposal
in terms of the criteria enunciated in Section 39.2(a).
In its argument, the Villages cite A.R.F. Landfill
Corporation v. Village of Round Lake Park, PCB 87—34 79 PCB 92
(July 16, 1987). However, the situation in A.R.F. Landfill is
quite different than the one presently before the Board. In
A.R.F. Landfill, the applicant was seeking site location
suitability approval from the Village of Round Lake Park
concerning a proposed expansion to an existing landfill. The
proposed area of expansion included a parcel which the applicant
contended was within the Village of Round Lake Park. The Board
held that since a portion of the proposed expansiqn was
considered within the Village of Round Lake Park,~ then that
portion of the proposed expansion had to be approved by the
Village of Round Lake Park. The County of Lake had jurisdiction
over the remaining portion of the expansion. 79 PCB at 100—101.
The legislative history of the landfill siting provisions of
the Act, Senate Bill 172, addresses the jurisdiction issue
specifically. Prior to a vote in the House of Representatives
which passed S.B. 172 through the adoption of the Conference
Committee Report #1, Representative Breslin, while discussing the
bill, stated:
They must before getting a permit from the EPA,
first secure the permit from the County or the
local unit of government in which they lie. If
they lie totally within a municipality then they
get it from the municipality, if they lie in the
county, in the unincorporated area then they get
the permission from the county, if they overlap
they get it from both. And this must be granted
prior to the EPA going ahead with its siting
approval.
82nd General Assembly, House of Representatives, July 1,
1981, p. 191—92.
~ The Board notes that at the time of the decision the
annexation, by the Village of Round Lake Park, of the parcel in
question was being contested in a quo warranto action in tI?e
Illinois circuit court. As a result, the Board held that
it
would treat the annexation as valid, since the validity of an
annexation may not be collaterally challenged.
90—14 7
14
The Villages reason that Laidlaw’s proposals concerning
Pyott Road and Well No. 6 are a part of the proposed “site” and
are exclusively within the jurisdiction of the Village of Lake in
the Hills for the purposes of location approval. The Board
believes that such reasoning is erroneous.
Section 39(c) of the Act provides:
(No permit for the development or construction of
a new regional pollution control facility may be
granted by the 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, or the
governing body of the municipality when in an
incorporated area in which the facility is to be
located in accordance with Section 39.2 of this
Act. (emphasis added)
In short, the determining factor for jurisdiction is the
location of the proposed facility. The Act does not utilize the
term “site” when it discusses the issue of jurisdiction in the
siting of new regional pollution control facilities. Since the
Act does not define the word “facility,” a common usage of the
word would apply. It is the Board’s belief that Pyott Road and
Well No. 6 are not a part of the new regional pollution control
facility that Laidlaw is proposing. Although these features do
figure into Laidlaw’s proposal, they are not determinative of
çiurisdiction.
The jurisdictional aspect should not be confused with the
second phase of the siting process; the process by which a local
authority grants site location approval.
While the term “facility” is also used in Section 39.2(a),
it is obvious from the criteria set forth by that Section that
the county board or local governing body must consider factors
which extend beyond the limits of the facility in deciding
whether to approve a location. The local authority must
determine how the facility would impact on the surrounding
environment——including areas that are outside the site—approval
jurisdiction of the decisionmaking body. Therefore, it was not
inappropriate for the County Board to consider those aspects of
Laidlaw’s proposal that dealt with features located outside of
unincorporated McHenry County. The Board cautions, however, that
the County must recognize that any offer of impact minimization
that requires the agreement of another person to implement is not
within the applicant’s sole control to implement, e.g. paving a
road or purchasing a house external to the site.
Consequently, the Board finds that it was proper for the
County Board to consider Laidlaw’s proposals concerning Pyott
Road and Well No. 6 when it decided this matter. The Board notes
90—148
16
In its brief which was filed on April 8, 1988, the County
Board expressly adopts the “arguments, positions, and evidentiary
evaluations” contained in portions of a document entitled
“Proposed Findings and Order Submitted by Richard Flood”. The
particular portions are attached to the County Board’s brief.
Laidlaw states that the County Board is attempting to create
the impression that it initially adopted these findings when it
made its January 21, 1988 decision. Laidlaw correctly asserts
that the County Board’s decision did not mention these particular
findings.
To the extent Laidlaw is objecting to the County Board’s
inclusion of rationale supporting its decision, the Board must
overrule such objections. The Board views the attachment in the
County Board’s brief as argument which cites evidence in the
record that supports the County Board’s decision. The underlying
document from which the attachment is taken was submitted to the
County Board prior to the County Board’s January 21, 1988
decision. Laidlaw also had submitted a similar document to the
County Board. It is the Board’s role to evaluate a county
board’s decision as to whether it is against the manifest weight
of the evidence. Such a review becomes much more focused when
the Board can turn to particular findings of a county board which
led to the final decision. Certainly, if any of those findings
can support the decision given the manifest weight standard of
review of review, the Board must affirm the County Board’s
decision. All too often, county boards or other units of local
government do not provide any findings or rationale supporting
the ultimate decision. Rather, they merely give their
conclusions as to which criteria the applicant proved or failed
to prove. While these actions are consistent with case law (e.g.
E&E Hauling, Inc. v. Pollution Control Board, 116 Ill. App. 3d
586, 451 N.E.2d 555, 577 (2d Dist. 1983)), they create a
situation where the record is extremely difficult to review.
This becomes quite evident when one considers that the record in
a landfill siting case such as this proceeding, often involves
hundreds of exhibits and thousands of pages of transcripts.
Often the briefs of the local units of government do not even
contain citations to the record.
Therefore, the Board welcomes the County Board’s brief which
cites evidence supporting the County Board’s decision. It must
not be forgotten that the burden of proof in this proceeding is
upon Laidlaw; Laidlaw must prove that the County Board’s decision
is against the manifest weight of the evidence. Also, Laidlaw
had the opportunity to respond to the County Board’s rationale in
a reply brief which Laidlaw filed on April 15, 1988.
Criterion #2
90—149
15
that County Board expressly declared that it made no
jurisdictional finding concerning “any real estate located within
the corporate limits of the Village of Lake—in—the—Hills.”
County Board Findings and Order, January 21, 1988, p. 3. However,
the specific proposals relating to Pyott Road and Well No. 6 had
no bearing on the outcome of the Board’s own substantive review
of this matter. That is, there is a sufficient amount of
evidence in the record, even when excluding Laidlaw’s proposals
concerning Pyott Road and Well No. 6, for the Board to conclude
that the County Board’s decision is not against the manifest
weight of the evidence.
The fifth and final jurisdictional challenge of the Villages
is that the County Board lacked jurisdiction because Laidlaw
failed to fully disclose the beneficial interests of trusts that
own parcel 1 of the proposed site. The Villages assert that
Laidlaw has not complied with a provision with the Land Trusts
Act (Ill. Rev. Stat. 1985, ch. 148, par. 72) and that, as a
result, Laidlaw’s notice was defective.
Laidlaw correctly asserts that the provisions of the Land
Trusts Act do not apply to this matter. However, Laidlaw also
claims that it has in fact complied with the Land Trusts Act by
disclosing that 1) the property is owned by a Land Trust, 2) the
beneficial owner of the trust is the Raymond E. Plote Living
Trust, 3) Raymond E. Plote is the principal beneficiary of the
living trust, and 4) Laidlaw has provided the address of the
beneficiary.
As Laidlaw points out, Section 39.2(g) states:
The siting approval, procedures, criteria and
appeal procedures provided for in this Act for new
regional pollution control facilities shall be the
exclusive siting procedures and rules and appeal
procedures for facilities subject to such
Procedures. Local zoning or other local land use
requirements shall not be applicable to such
siting decisions.
Ill. Rev. Stat. 1987, ch. ill ~/2
,
par. 1039.2(g)
Clearly, the Act does not require that an applicant abide by the
provisions of the Land Trust Act in order to fulfill the notice
requirements imposed by the Act. Consequently, the Village’s
allegation regarding this issue has no merit. In addition, the
Board finds that Laidlaw’s actions on this point did not render
the County Board’s process fundamentally unfair.
Substantive Review
Now, the Board may review the merits of the County Board’s
decision to determine whether it is against the manifest weight
of the evidence.
90—150
17
Laidlaw asserts that its proposed site meets Criterion #2
which states that “the facility is so designed, located and
proposed to be operated that the public health, safety and
welfare will be protected.” This criterion is broad and its
discussion is responsible for a large portion of the record. itt
covers a range of topics including potential groundwater
contamination, geology, leachate generation, surface water, gas,
odor, and potential landslides. There are 11 private and three
public water supply wells within 1,000 feet of the proposed
landfill (R. I, 549) including the main Lake in the Hills well
which is 206’ 10” from the edge of the site. (1k. III, 541). The
site sits over a Silurian dolomite aquifer which is used as a
water supply by most of McHenry County. (R. I, 360). It is also
within 500 feet of 68 residential dwelling units and 13
industrial or commercial concerns. In addition, the proposed
site is within 10,000 feet of an airport runway. (R. III, 542—
545). The Board will first consider the record as it relates to
potential groundwater contamination. This discussion will by no
means cover every issue raised on this topic.
The proposed landfill is to be located in and above a layer
of glacial till. This layer is the Tiskilwa Till Member of the
Wedron Formation. Beneath this layer, lies an aquifer composed
of a basal, glacial drift layer (which is sometimes referred to
as the basal sand and gravel layer) and a bedrock formation of
Silurian dolomite. The Village of Lake in the Hills draws its
drinking water supply from this aquifer. Approximately, 90
vertical feet of till would be between the proposed landfill and
the aquifer. (Report of the Hydrogeological Investigations, Vol.
I. p. 31). According to Laidlaw’s application, the glacial till
provides an “excellent barrier” between the proposed landfill and
the aquifer. (Report of Hydrogeological Investigations, Vol. I,
p. 72). In addition shallow sand and gravel deposits located
above the till act as an aquifer. (Id., p. 56).
At the hearings conducted in 1988, Ms. Roberta Jennings, a
Laidlaw witness, characterized the Tiskilwa Till as follows:
The Tiskilwa Till, in my opinion, is an ideal
repository for solid waste.
The
characteristics of this till are such that it
is probably the most favorable till that I’ve
encountered in the State of Illinois in terms
of having the high cation exchange
capacities, the low coefficients of
permeability, the continuity that it——that it
displays. (RI, 295)
She also stated that the till on the site was “one of the more
remarkable glacial tills in terms of being a containment for a
sanitary landfill facility.” (RI, 237)
In 1987, she reiterated her beliefs concerning the till:
90—151
18
My conclusions are that the——that this site
has been, throughout many investigations,
very thoroughly characterized,
and that the
material, the 90 feet of thick glacial till,
the Tiskilwa
Till,
is one
of the most
important features on the site, in that it
has very low permeability, water moves
through extremely slowly, and that it will
form an adequate protection feature,
containment or containment system for the
landfill. (R II, 660)
Another Laidlaw witness, Dr. Robert Bergstrom, also stated
that the thick layer of Tiskilwa Till below the landfill would be
“an excellent containment bed” and that is “the most important
feature that assures the safety of this site.” (R.II 873)
In other words, it is Laidlaw’s position that the relatively
low permeability of the till would prevent any leachate, which
may leak out of the landfill, from entering the aquifer.
Dr. Nolan Aughenbaugh, testified at the Amendment hearings
that the proposed site lacked the proper natural setting which
would provide protection if the engineering of the landfill
failed. Dr. Aughenbaugh stated that since the site is located in
a “sea of sand and gravel,” the natural setting would not prevent
the extension of a site failure. (lUll. 390—91). Further, Dr.
Aughenbaugh stated that Laidlaw’s own data taken from borings
demonstrate that sand and gravel seams and lenses occur in the
till below the invert of the proposed landfill.
(RIII. 406). Due
to the presence of these seams and lenses, he concluded that the
layer beneath the proposed landfill did not consist of 90 feet of
continuous till. (lUll. 410).
On the issue of sand seams in the till, the Report of
Hydrogeological Investigations,
Vol. 1 states as follows:
Below Ian
elevation
of
780 MSLI to an
approximate
elevation
750 MSL,
the till
contains a few extremely thin sand seams.
Organic fragments were also noted in one or
two borings in this interval. The sand seams
are considered to be sheared remnants of an
interglacial episode, and as such may be
intermittently
continuous
across
limited
areas of the site. The seams are extremely
thin and are commonly hairline to less than
three inches in thickness. A few thicker
lenses were encountered, the thickest being
two feet of very clayey sand.
The
composition of the seams is variable, ranging
from fine clayey sand to coarse sandy
90—152
19
gravel. The seams are neither thick enough
nor continuous enough to serve as aquifers,
even for wells of very low yield.
Above elevation 780 MSL a few isolated lenses
were encountered.
These were generally
thicker, which is typical of intratill
lenses, and each lense encountered had a
totally different character, including a
lense of clayey fine sand, a lense containing
clay with thin sand seams interbedded, and a
lense composed purely of pea—sized gravel.
These were located at widely separated
locations across the site, and nearby borings
did not encounter similar material. With the
exception of a few isolated lenses, and the
zone containing limited, extremely thin sand
seams, the Tiskilwa Till is remarkably free
of sand inclusions and is unusally massive
throughout. This was observed in preliminary
borings and substantiated by subsequent
investigation. (Report of Hydrogeological
Investigation, Vol. I, p. 22, 25)
When asked of the role sand seams could play in the
contamination of the aquifer, Jennings stated that leachate could
travel laterally along sand seams. Such movement could lead to a
poorly—sealed well tapped to an aquifer. The leachate could then
travel through the well to the aquifer. (Rh 611—12). It 15
interesting to note the Report of Hydrogeological Investigations,
Vol. I, p. 48, reports that Well 4 for the Village of Lake in the
Hills is not sealed, although it is no longer in use. This well
which is located only 500 feet west of the proposed landfill is
finished in the basal sand/dolomite aquifer. (Id. p. 48).
In its brief, the County Board cites testimony of Dr. Kirk
Brown in support of the County Board’s conclusion that Laidlaw
failed to prove Criterion ~2. Dr. Brown prepared exhibits from
Laidlaw’s own data which, according to Dr. Brown, prove that
there is a direct hydraulic connection between the till and the
aquifer. (Rh, 1797, 1826). Dr. Brown draws this conclusion from
well data that detail fluctuations in water levels measured by
piezometers. Dr. Brown correlates such water level fluctuations
between wells that are based in the aquifer with wells that are
based in the overlying till.
In particular, Dr. Brown contends that the data indicate a
strong correlation between the water level in well G—102 with the
water levels in wells P—2D and P—21. Well G—102 is based in the
basal drift/dolomite aquifer, and P—2D and P—21 sample water in
sand seams located within the glacial till layer. G—l02 is
located on the proposed site about 400 feet from a Village of
Lake in the Hills’ drinking water well known as L—6. (Rh,
90—153
20
494). Well L—6 also draws water from the basal drift/dolomite
aquifer.
Dr. Brown asserts that the water level in G—l02 fluctuates
in response to the variable draw on the aquifer by L—6. That is,
when the Village of Lake in the Hills pumps more water out of L—
6, the water level in G—102 correspondingly decreases. When the
pumping is decreased, the water level in G—102 recovers and
thereby rises. Using data gathered by Laidlaw from December 29,
1986 to February 17, 1987 and from April 4, 1987 to May 22, 1987,
Dr. Brown has drawn graphs which he stated indicate a correlation
in water fluctuations between wells G—l02, P—2D and P—21. (Obj.
Exh. 87—14). In other words, the pumping of L—6 not only impacts
upon G-l02, but also upon the levels of water found in P—2D and
P—21 which are located within the till, layer. According to Dr.
Brown, this is proof of a hydraulic connection between the basal
drift/dolomite aquifer and the overlying glacial till. (RIlI.
1819). Furthermore, the fluctuations which appear in the till
wells occur only a couple of days after the same fluctuations are
observed in the aquifer well. (Rh. 1806).
It is also interesting to note the locations of the wells P—
2D and P—21. P—2D takes water from within the till at an
elevation range of 749.9 to 754.9 feet mean sea level (MSL), P—
21 records water levels taken from within the till at an
elevation range of 792.3 to 797.3 MSL. (Report of Hydrogeologic
Investigations, Vol. I, p. 23 Table 1). The invert of the
proposed landfill will be located at approximately 800 MSL. (Rh.
1790). Consequently, if accurate, the data gathered from P—2D
and P—21 describes hydrogeologic conditions of areas that exist
between 3 to 30 feet below the invert of the landfill. Simply
put, there could be areas in the till just below the base of the
landfill which could be hydraulically connected with the
aquifer. If so, the leachate would not have to move far from the
base of the landfill before it enters an area linked to the
aquifer.
Dr. Brown points to data from other wells which further
support his conclusion that the till layer is hydraulically
connected to the aquifer. According to Dr. Brown, water
fluctuations in the P—6 series of wells indicated that the water
levels in the till are fluctuating in response to water levels in
the aquifer. (Rh, 182). The P—6 wells measure water levels in
the till and sand seams within the till. (Report of Hydrogeologic
Investigations, Vol. I, p. 23, Table 1). They are located east
of the P—2 wells. (Id. Figure 10). Similarly, Dr. Brown
correlated, to a certain extent, water level fluctuations between
the P—lU series of wells and well G—l06 which samples water from
the aquifer. Dr. Brown stated that the P—lO wells were mirroring
water level fluctuations in the aquifer. (Rh. 1922—23).
In summary, Dr. Brown describes the mechanism by which
pollutants could move through the till to the aquifer:
90—154
21
So there is evidence that not only——are the
piezometers that are screened near well 102
connected to the aquifer, but also the
piezometers
across
the
whole
area
are
connected to the aquifer; and every time the
municipality turns the well on, it draws some
water out of that aquifer, along with the
contaminants from the landfill.
Those move
towards the well.
New water is drawn in and
we are doing this three steps forward, one
step
backward
on
the
pollutants,
and
essentially
milking them out of the till by
fluctuating the water on and off.
(Rh, 1825).
At the hearings held on the amendment to Laidlaw’s
application, Dr. Brown reiterated his position with regard to the
till’s ability to act as a barrier.
The 90 foot of till underneath the landfill
will not prevent it leaks from the landfill
from getting
into
the aquifer
that
the
community is dependent on; and even if the
wells are moved, I believe that still
the
aquifer will be contaminated and it will just
be a matter of time until new wells will also
be contaminated by the toxic leachates that
will emanate from this landfill. (RIII, 947)
Dr. Pratrap Singh also testified that, off—site, there was a
hydraulic connection between a shallow aquifer, which exists at
an elevation of 800 MSL, and the basal drift/dolomite aquifer.
He states that the data indicate the connection might exist on—
site as well. As evidence supporting this conclusion, he cites
the correlation of water level fluctuation of wells on—site with
the pumping of L—6. (RIII. 817—18).
Given the data, Dr. Brown also estimates that once leachate
leaks from the landfill, it would only take 2 to 4 years before
it contaminates the Village of Lake in the Hill’s drinking water
well, L—6. (RII. 1827).
The County Board cites Dr. Brown’s conclusion that sand
seams of the till layer are hydraulically connected to the basal
drift/dolomite aquifer which supplies water to the Village of
Lake in the Hills. According to the County Board brief, such
data “proves that the 90 feet of supposedly impermeable soil
till is in fact permeable.” In addition, the County Board
cites Dr. Brown’s assertions that it would only take “2, 3, or 4
years” before leachate leaking from the landfill would
contaminate the aquifer which supplies Lake in the Hills with
water. (County Board Brief: Attachment p. 31).
90— 155
22
The issue now becomes whether there existed opposing
evidence such that the County Board’s decision was against the
manifest weight of the evidence.
As noted before, it is the
burden of the petitioner to prove that the decision is against
the manifest weight. In Valessares.
V.
County Board of Kane, PCB
87—36 slip. op. at 2d (July 16, 1987), the Board found:
Where
a
Petitioner
fails
to
make
a
significant or detailed showing that a county
board determination
is in error,
the Board
can determine that petitioner has failed to
carry the burden of demonstrating that the
determination
is in error.
The Board need
not provide a detailed review of the facts
and
evaluate
all
arguments
which
the
petitioner
might
have
made.
Concerned
Citizens Group et al. v. County of Marion,
PCB 85—97, at p. 3, November 21, 1985.
In Valessares, the Petitioner “failed to provide the
Board
with legal arguments or factual assertions from the record, which
would demonstrate why the county board’s determination is against
the manifest weight of the evidence.”
Id at 19—20.
Interestingly,
Laidlaw did not address much of the above—
discussed issues and conclusions put forth by Dr. Brown, and
cited in the County Board’s brief, in Laidlaw’s briefs to the
Board.
Apparently, Laidlaw has decided not to do battle on this
ground. Instead, Laidlaw’s briefs concern other witnesses and
other issues developed in the record.
It is clear from Valessares that a petitioner cannot afford
to let the record speak for itself; a petitioner must actively
argue its case on all points.
If a petitioner ignores an issue
or conclusion adopted by a County Board, it does so at its own
peril.
However, notwithstanding this rule, the Board has, on its
own, sifted through the voluminous record to review evidence that
opposed Dr. Brown’s conclusions.
Laidlaw’s own application recognized the observed
correlation between water fluctuations
in G—102, P—2D and P—2I.
However, according to Laidlaw’s report, written by Jennings, the
only possible cause of this phenomena was that an inadequate
grout, or seal, existed in G—102. The report stated that this
conclusion would be verified after G—102 was regrouted. (Report
of Hydroqeologic Investigations,
Vol. I, p. 71).
Well G—102 was regrouted. After the regrouting, more water
level data was gathered in April and May. (App. Exh. 87—25,
Appendix 3). Dr. Brown uses the post—grout data to show that a
correlation in water fluctuations existed even after G—l02 was
90—156
23
regrouted. (Rh. 1805). Roberta Jennings asserts that while the
water levels in P—2D and P—2I fluctuate, the origin or cause of
the fluctuation is unknown (Rh. 375). Jennings again concludes
that there is no
hydraulic connection between the till and the
aquifer. (RIl. 376). She points to new wells which were sunk at
the time of the regrouting.
These wells, called T—P25, TP—21,
TP—2D were all drilled into the till layer.
At the time of the
hearings in late 1987, these wells had
not yet stabilized
according to Jennings. (Rh. 369). At the same time, she stated
that field permeabilities could only be accurately measured after
the wells
stabilize. CR11. 371). However, she still concluded
that the lack of fluctuation in the TP—2 wells, which were not
stabilized, showed a lack of connection between the till and
aquifer. (RII. 374).
Jennings testified that the water level of G—l02 does
flucuate and that “pumping at the Village’s Lake in the Hills
well affects the till above it...”
In addition, she stated that
similar curves in water
fluctuation graphs, over the same period
of time, would indicate
hydraulic connection. CR111, 365). She
claimed that after the regrouting of G—l02, a different response
in the wells was evident and that the fluctuations in P—21 and P—
2D “bear no resemblance” to the fluctuations of G—102. (Rh. 370;
App. Exh. 87—29, p. 3—6).
On the other hand, Dr. Brown contended that the correlation
existed even after the regrouting (Rh. 1805). He points to Obj.
Exh. 87—14; as showing the continued correlation. The Board
finds that the County Board could have reasonably agreed with Dr.
Brown that the water fluctuation graphs for G—102, P—21 and P—2D
appear to correlate after the regrouting of G—102.
Dr. Bergstrom agreed with Jennings that fluctuations are not
a serious matter. He said they could be due to movement of heavy
equipment in the quarry (R.IIh, 943), barometric pressure changes
(R.II, 941) or topography (R.II, 933). He also said that there
is “very little likelihood that leachate can move laterally
though any horizontal horizon below the landfill to a well off
the site.” (R. II, 1004).
At the June 22, 1987 hearing, Jennings said that the
piezometer data show there is no “immediate” hydraulic connection
between the site and the aquifer, but that there is a “slow”
hydraulic connection. She said an immediate connection would be
a direct connection such as a fracture, while a slow connection
is the natural state of affairs in till with low permeability.
According to her, Dr. Brown did not consider fluid mechanisms in
reaching his conclusions. (R.hII, 2437—2463).
On November 16, 1987 at a hearing on the amended petition,
Robert Robinson, an engineer with Burns and McDonnell, testified
to an impressive number of refinements to the proposal. These
items were in response to concerns raised at hearing and proposed
90—157
24
new landfill regulations. The new design called for recompacted
liners, a drainage blanket, increased slopes to help collect
leachate and prevent infiltration, and an improved leachate
collection system among other items. (R. III, 97—127). Laidlaw
made some of these changes, such as recompactirig the lines,
despite earlier testimony by its witnesses that such
modifications were unnecessary. (R. hI, 1333 and 2367).
Later, Dr. Brown stated:
I have looked at the amendment to review the
engineering solutions that are proposed, and
I don’t think, and it’s my opinion that they
won’t be adequate to solve the problem. The
fill will still leak. (R. III, 928).
This statement was consistent with Dr. Brown’s opinion of the
site as expressed in the earlier set of hearings. When asked
about additional engineering solutions to protect groundwater, he
said:
I think, you know, some of these things would
help a little bit; but it’s kind of like
digging a hole out there and putting a band—
aid in there to try and keep the water from
flowing out.
The site is poor, and we can throw more and
more and more engineering at it. Maybe we
ought to Teflon line it. There are more and
more things of that nature we could do; but
it’s my observation, I have seen municipal
waste landfills, I have seen hazardous waste
landfills.
I have seen these engineering solutions. I
have personally tested plastic membranes, and
I have found that they leak, and so that you
can go to more and more trouble to put a
band—aid on the solution, and the problem is
that the site is just bad, it’s too close to
that well, and any engineering you throw at
it it just becomes more and more expensive
and you still don’t solve the problem. (R.hI,
1831).
Dr. Brown was joined by several other witnesses in
concluding that the leachate would eventually leave the
landfill. These witnesses included Dr. Nolan Aughenbaugh. (R.
III, 421—423) and Dr. Pratap Singh (R. III, 838). Dr.
Aughenbaugh described the site as one of the worst he had seen.
(R. III, 463).
90—158
25
Given that the manifest weight standard requires the Board
to view the evidence in a light most favorable to the respondent,
County Board, the Board finds that it was reasonable for the
County Board to adopt the conclusions of Dr. Brown concerning the
hydraulic connection issue and the potential for leachate to
migrate from the landfill and contaminate groundwater.
Laidlaw also argues that the close proximity of the Village
of Lake in the Hills’ well L—6 to the proposed site is
inconsequential to the County Board’s determination concerning
site location approval. As support for this contention, Laidlaw
cites its promise to provide the Village of Lake in the Hills
with another drinking water well if L—6 ever becomes
contaminated. The Board disagrees with Laidlaw’s position.
Well L—6 currently pumps approximately 72 million gallons of
water per year. (Rh. 1802); the well represents approximately
half of Lake in the Hills’ current water supply. CR111. 895).
Even if it is assumed that Laidlaw’s promise regarding well
relocation adequately compensates the Village of Lake in the
Hills for the loss of well L—6, such a compensation need not be
the redeeming factor for Laidlaw’s proposed site. An offer to
pay for damages resulting from an injury does not necessarily
justify the infliction of the injury. The County Board must
determine whether the proposal is located, designed, and operated
so that “public health, safety, and welfare will be protected.”
Therefore, it was reasonable for the County Board to consider the
front—end implications as to how the proposed site will impact
public health, safety, and welfare. Promises of relocation or
clean—up operations, while relevant in their own right, do not
negate these considerations. In other words, the fact that the
proposed site may contaminate a drinking water well cannot be
ignored by the County Board simply because Laidlaw has promised a
new well if the old one is contaminated.
Implicit in Laidlaw’s position is the assumption that the
Village of Lake in the Hills will agree to Laidlaw’s well
relocation proposal. While Laidlaw may be willing to pay for
relocation, there is no indication that the Village of Lake in
the Hills has accepted, or otherwise committed itself to, such a
plan. In short, Laidlaw’s promise appears to be unilateral and
not in any way binding upon the Village of Lake in the Hills.
The above discussion assumes that Laidlaw’s offer to drill
another drinking well would be adequate compensation for any
contamination caused by the proposed landfill. It must be
remembered that if Laidlaw’s landfill contaminates well L—6, then
Laidlaw’s landfill has contaminated the basal drift/dolomite
aquifer. This fact cannot be ignored. While it is significant
that L—6 is quite close to the site, it is equally significant
other wells draw water from the aquifers under the site.
Logically these wells and even the new well promised by Laidlaw,
would also be in jeopardy.
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26
Laidlaw seems to imply that the price of one well is
adequate compensation for the contamination of an aquifer. The
Board believes that it would have been reasonable for the County
Board to reject such an argument. This is especially true when
further testimony concerning Well L—6 is considered.
Mr. Robert Sasman, who is a consulting hydrologist,
testified on behalf of the Villages. He previously worked 36
years for the Illinois State Water Survey. At hearing on the
Amendments, Sasman stated that relocating the Village of Lake in
the Hills’ well 500 or 1000 feet away, and drawing still from the
same aquifer, would not be a viable option if well L—6 was
contaminated. CR111. 746). He testified that if the aquifer
became contaminated, a new well that distance away would also
become contaminated within weeks. CR111. 768). In addition, he
stated that if a deep well was drilled to replace L—6, such a
well would likely produce water that exceeded federal and state
drinking water standards for barium and radium. According to
Sasman, deep water wells in McHenry County regularly exceed these
radioactivity standards. CR111. 748). In addition, Well #5 of
the Village of Lake in the Hills is a deep water well which has
such problems. As a result, that well is only used during an
emergency, according to Sasman. Water from L—6 does not have a
radium or barium problem. (lUll. 751). He stated that use of
deep well water would require additional treatment facilities in
order to reduce the levels of radium and barium. (RIII. 752).
Sasman testified that in general it is more expensive to operate
a deep water well. (R. III. 756). Sasman also concluded that the
basal/drift dolomite aquifer could probably be classified as a
sole source aquifer for the Village of Lake in the Hills, since
there are no other reasonable alternative water supplies
available to the community. (RIhI. 769).
The testimony of Barbara Key, Village President of the
Village of Lake in the Hills, echoed Sasman’s conclusions as to
the importance of well L—6 to the Village of Lake in the Hills:
In 1971 my family of six moved into Lake in
the Hills. I was shocked at the water
quality.
When you would turn on the faucet for a glass
of water, it would be filled with liquid that
wasn’t clear but rust colored. I found the
water was safe to drink but impossible.
So we would catch it up, put in in a glass
and let it set in the refrigerator overnight.
Because of the initial shock and concern of
the quality, I was in constant contact with
the E.P.A., who had me take daily samples.
90—160
27
I vowed then that I would get involved and
get the water quality improved.
After the Village purchased the private
utility, which was in 1976, we were able to
drill a new well, known commonly as Well 8,
6. There has always been a mix—up. We
originally had it 8 and it was changed to 6.
The well was like a blessing to the Village,
not because it was a natural flowing artesian
well pumping 700 gallons a minute but because
of the quality of the water. It was crystal
clear, which was
——
the crystal
——
excuse me.
The crystal clear water put our original well
to shame, which was heavy with a
concentration of iron and sulfur, and the new
well was not cursed with barium or radium, as
the deep wells were.
Before Laidlaw filed its Application with the
County, company representatives contacted me
about annexing and zoning the landfill
operation.
The offer was tempting because of the
potential revenue Laidlaw officials said it
would produce for the Village.
However, our engineer warned us that the
landfill would have a very bad effect on our
drinking water supply. We, myself and the
Village Board, decided that no amount of
money would be worth such an effect of the
drinking water of the Village....
We have found when we went back and went
through our records, that Well No. 6 produces
roughly 50 percent of our water. It’s a good
quality water, it’s something that you can
draw a glass of water and drink it directly
from the tap.
When this well for any reason is off the
line, such as when we constructed the water
tower and at one time we had to have it off
for connecting mains and that, you wouldn’t
believe the complaints we had because of the
quality of the water.
90— 161
28
I am telling you here and now and I am
telling Laidlaw officials, we cannot afford
to lose this well.
It’s the best well we
have got, it’s the best drinking water we
have got and we won’t lose it.
We can’t
afford to. (lUll, 892—96)
Laidlaw’s Report of Hydrogeological Investigations, Vol. I
describes the community water supply of the Village of Lake in
the Hills. As stated earlier, well L—6 draws water from basal
drift/Silurian dolomite aquifer. L—6 has an artesian flow of 50
gallons per minute and can be pumped to yield 750 gallons per
minute. According to the Report, Wells 1 and 2 also draw water
from the Silurian dolomite. Wells 1 and 2 pump at a rate of
100,000 to 120,000 gallons per day and 300,000 gallons per day
respectively. The only other well currently utilized by the
Village of Lake in the Hills is Well #5, which is the deep-water
well drawing from the Galena—Platteville/Glenwood—St. Peter deep
aquifer. (Report of Hydrogeological Investigations, Vol. I, p.
48—49).
Dr. Brown also calculated the cone of depression for Well L—
6. The cone of depression defines the area surrounding a well
which is influenced by the pumping of that well.
Dr. Brown testified that the cone of depression for L—6
during periods of heavy pumping, can extend at least 10,000 feet
around the well. ‘He also stated that any replacement well, of
the same capacity as L—6, which was located within that area
could also become contaminated. CR111. 946).
Dr. Singh calculated the cone of depression for L—6 as
extending as far away as 4,800 feet. Dr. Singh used a pumping
rate of 800 gallons per minute, taken from Appendix H of the
Application for his estimate. According to Dr. Singh, Laidlaw’s
entire facility would be encompassed by this cone of
depression. Dr. Singh claims that his figures represent a draw—
down that is “somewhere between the worst—case situation
and...the initial groundwater level.” (RhhI. 815—16).
In addition, Dr. Sirigh testified that if a replacement well
were located 3000 feet from the proposed landfill, the cone of
depression for that well would extend to the boundary of the
proposed facility. (RIII. 821—22).
Laidlaw argues that Dr. Singh’s conclusions regarding the
safety of this site should be disregarded because of differences
between his 1985 and 1987 testimony concerning the proposed
site. However, Laidlaw does not seem to challenge Dr. Singh’s
estimate of the cone of depression, whi’ch according to Laidlaw
was the same in 1985 as in 1987. In its briefs, Laidlaw did not
argue against Dr. Brown’s conclusion regarding the cone of
depression.
90—162
29
Conclusion
Given the record, the Board finds that the County Board’s
decision is not against the manifest weight of evidence for
Criterion #2. There is credible, though disputed, evidence which
calls into question the ability of the Tiskilwa Till to act as a
natural barrier to protect a much—used aquifer from contamination
by leachate which might leak from the landfill.
There is also
credible testimony that leachate will migrate from the landfill
despite liners and a collection system.
The close proximity of
drinking water supplies to the landfill is relevant and bears
further upon the potential impact that the landfill may have upon
public health, safety, and welfare. This is true notwithstanding
Laidlaw’s offer to relocate a drinking water well. Evidence
suggests that the basal drift/dolomite aquifer is a sole source
aquifer for the Village of Lake in the Hills and that it is
important to other communities in McHenry County as well.
Although the Board has discussed certain issues in this
Opinion, their inclusion does not imply that these are the sole
issues which support the County Board’s decision. Given the
enormity of the record, it would be a needless indulgence of
State resources to discuss all the evidence that was before the
County Board.
The Board notes that the applicant in its briefs expressed
great frustration that the county board again denied its
application. The applicant did in fact redesign the landfill to
incorporate most suggestions made by the opponent’s technical
witnesses. The applicants April 1, 1988 brief stated:
As this
Board knows, McHenry County
has
denied every landfill application that has
come before it. The County Board seems to
have but one goal when it comes to landfills
and that is to keep them out of McHenry
County.
Unless this Board intervenes,
McHenry County will continue to blackball
landfills.
**
*
After the County Board issued its previous
opinion, Laidlaw searched the 6,400 page
record compiled in 1985 for the criticisms
and advice of the experts on which the County
Board must have relied. Laidlaw fixed the
things that these experts said were wrong.
Laidlaw resubmitted its application and
participated in new public hearings, but
McHenry County did not give it the reasonable
consideration to which it was entitled.
90—163
30
What Laidlaw got instead was the same terse
denial.
As noted previously, the landfill siting procedures of the
Act vest the decision in these matters with local authorities.
Absent convincing evidence to the contrary, this Board must
assume that the County Board acted in good faith. City of
Rockford v. Winnebago County Board, PCB 87—92, slip. op. at 23
(November 19, 1987). The mere fact that a county board has
previously denied other landfill siting applications does riot
necessarily overcome this presumption. See John Ash, Sr. v.
Iroquois County Board, PCB 87—173, slip. op. 7—10 (May 5, 1988);
City of Rockford, slip. op. at 26. As noted earlier, Laidlaw has
not alleged that the County Board’s decision resulted from a
fundamentally unfair process. Even though the applicant
corrected many perceived deficiencies in the design, the County
Board still could have reasonably concluded that the site is
unsuitable for a landfill. The Board is also aware of the anger
and frustration of the citizens who participated in this long
process. This was amply stated by several persons during the
public comments periods during the hearings:
This is the third pubic comment session I’ve
attended since this all began three long,
long, long years ago....
We all have been pushed around, threatened
and forced to oppose this landfill time and
time and time and time and time again.
That’s right, five times, Applications 1, 2,
3, 4 and 5, called amendments.
I’m sure all of us here today feel just as
indignant as I do about these ridiculous
proceedings.
I believe it was thought that we from
Algonquin and Lake in the Hills wouldn’t
stick. We were supposed to get tired of the
fight and just let them roll over us.
Unfortunately, for the powers that be, that
has not happened. Fortunately for us, the
residents of Algonquin and Lake in the Hills,
we have kept up the fight.
With each Application by Laidlaw and each set
of hearings, more geological defects and
shortcomings have been found on the site....
The density of the population surrounding the
site alone should have been enought to stop
the dump before it ever got started.
90—164
31
Laidlaw
has
been
given
many
ample
opportunities to prove their case. They
cannot. Five times Laidlaw has tried to make
this ill—suited location application
palatable to us. They cannot.
cthy? Because this is the wrong place to site
a garbage dump. (R. III, 1160, 1162).
This is the third time I’ve come before you
to defend what I hold precious from attack.
This is the second time I say we should not
have to keep doing this.
Our goal of protecting our environment, our
health and our investments has not changed
since the first time we met.
But what has changed since then?
For one thing, we’ve all become older and
more tired from fighting this garbage pit,
and our communities and County have become
poorer in the process. (R. III, 1187).
Having found that the County Board decision on Criterion #2
is not against the manifest weight of the evidence, the Board
must affirm the County Board’s decision that denied Laidlaw’s
site location suitability request. Inasmuch as the Board’s
determination of Criterion #2 is also dispositive of the case,
the Board will and need not go further in its analysis of this
case. This is consistent with previous Board decisions. Waste
Management of Illinois v. Lake County Board, PCB 87—75 (December
17, 1987); Ash v. Iroquois County Board, PCB 87—173 (May 5,
1988).
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The January 21, 1988 decision of the McHenry County Board
denying site location suitability approval to Laidlaw Waste
Systems, Inc. is affirmed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 1111/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
90—165
32
Board Members 3. Anderson and
J. Theodore Meyer concurred.
h, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abo,, e Opinion and Order was
adopted on the
~
day of
‘
,
1988, by a vote
of_
.
/
!~. ~
Dorothy M. ~nn, Clerk
Illinois Poflution Control Board
90—166
