ILLINOIS POLLUTION CONTROL BOARD
November
17,
1988
CITY OF ROCKFORD,
)
Petitioner,
)
)
v.
)
PCB 88—107
WINNEBAGO COUNTY BOARD,
)
Respondent.
DOUGLAS
P. SCOTT,
ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
PETITIONER;
AND
PAUL A.
LOGLI
AND GARY KOVANDA,
STATE’S ATTORNEY OFFICE, APPEARED
ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter
is before the Board on the July
6,
1988 petition
of the City of Rockford
(“Rockford”) which seeks review under
Section 40.1 of the Environmental Protection Act
(“Act”),
Ill.
Rev. Stat.
ch.
111 1/2,
par.
1040.1
(1988),
of
a Winnebago County
Board (“Winnebago County”)
disapproval
of Rockford’s application
for the siting of
a regional pollution control
facility.
The
Board conducted a public hearing
in this matter on September 13,
1988.
The parties
filed
a stipulation with additional
exhibits
and testimony on October
3,
1988.
Rockford filed its post-
hearing brief
on October
5,
1988, Winnebago County filed
its
response on October 12,
1988,
and Rockford replied
on October 14,
1988.
The Board received an “intervenors’
brief” on October
12,
1988.
On October
31,
1988,
the “intervenors,” Save The Land,
Richard Brown, Edward Brown, Melvin Banks,
Ward
~4ercer, Lorenzo
Capes, Armen Swanson, Lee Carison, Betty Carlson, Orville Quanto,
and Dorothy Quanto,
filed
a motion
to intervene or,
in the
alternative,
to file their brief amicus curiae.
This matter returns
to the Board after
a remand from earlier
proceedings in City of Rockford
v. Winnebago County Board, No.
PCB 87—92
(Nov.
19,
1987).
The broader procedural history and
facts of
this matter
are more fully outlined
in the Opinion and
Order of November
19,
1987
in that case.
That Opinion and Order
found that
the prior Winnebago County decision resulted from
a
fundamentally unfair process.
It disqualified County Board
members Bell, Barnard, Connelly,
and Giorgi from further
participation,
and remanded
the matter back
to Winnebago County
for further proceedings.
The Board’s Opinion and Order required
Winnebago County to conduct an additional public hearing
for the
introduction
into the record
of the substance of known ex parte
93—429
—2—
contacts that had occurred and
for
a decision exclusively based
on the six criteria of Section 39.2
of the Act, Ill.
Rev. Stat.
ch.
111 1/2, par.
1039.2
(1987).
The Board
found that the
existing record compiled by Winnebago County was otherwise
complete and compiled
in
a fundamentally fair manner.
Therefore,
the Board only opened the Winnebago County record
for the
introduction of
the substance of the ex parte contacts that had
occurred,
and for a new decision exclusively based on the
Winnebago County Record,
as prescribed by law.
Winnebago County,
No. PCB 87—92,
slip op.
at 27—31.
Winnebago County held the
mandated hearings on February 27 and March
10,
1988 and rendered
its decision, again adverse to Rockford, on June
9,
1988.
This
appeal resulted.
Preliminary
to
its discussion,
the Board will dispose of the
“intervenors’ brief” filed on October 12.
Save the Land,
Inc.
and ten individuals attempted to intervene
in the prior
proceedings
in PCB 87—92.
The Board denied
intervenor status but
construed the “intervenors’ brief”
as
a brief submitted amicus
curiae
in that case.
See Winnebago County, No. PCB 87—92,
at
4.
For the reasons stated
in that case,
the Board denies
intervenor status,
but will consider the October
12 filing
as an
amicus
brief,
as requested.
See also Rockford Reply Brief at
2.
Discussion
Rockford asserts
three principal bases favoring
a reversal
of the Winnebago County decision against the proposed landfill
siting:
1.
That Winnebago County
did not
render
its
decision
within
the
statutorily—
prescribed time;
2.
That
the
Winnebago
County
decision
was
the
product
of
a
fundamentally
unfair
process;
and
3.
That
the
Winnebago
County
decision
was
against
the
manifest
weight
of
the
evidence.
The following discussion will separately consider the arguments
relating
to each asserted basis for reversal
in the order
outlined above.
1.
Statutory Deadline for Decision
Section 39.2(e) of the Illinois Environmental Protection Act
(“Act”),
Ill. Rev. Stat.
ch.
111 1/2, par.
1039.2(e)
(1988), pro-
vides that an applicant for siting approval may deem its request
approved
if the county board does not render
a final decision
93—430
—3—
within
180 days of the filing
of
its request for siting
approval.
This Board has observed that this provision applies to
local proceedings occurring after remand.
Village
of Hanover
Park
v. DuPage County Board, No.
PCB 82—69,
48 PCB 95,
108
(Sept.
2,
1982).
Rockford urges
the Board
to reverse the Winnebago County
denial because
it was rendered 199 days after
the county received
the November
19,
1987 Opinion and Order
of this Board.
Winnebago
County received a copy of that Opinion and Order on November
23,
1987.
R.
152;
cf.
35
Ill. Adm. Code 103.123
(1987).
Winnebago
County concluded its proceedings pursuant to that remand by its
June 9,
1988 final decision denying siting approval.
See
Petition, Ex.
L.
The Board does not believe the Winnebago County decision on
remand was untimely.
Following
its November 19 decision in PCB
87—92,
the Board certified questions for appeal by its Order
of
November
25,
1987.
Rockford filed an appeal, and
the Second
District dismissed that appeal 41 days later,
on January
5,
1988.
See Rockford Brief
at
7.
This intervening time is more
than twice that time by which Bockford contends
the Winnebago
County denial exceeded the statutory time for decision.
The
Board will not disturb the Winnebago County decision on this
basis.
2.
Fundamental Fairness
Rockford makes four independent arguments to support
its
contention that the Winnebago County decision was the product
of
a fundamentally unfair process.
Each is separately considered
below.
Rockford first argues that the remand failed
to cure the
impact of the ex parte contacts which occurred during the course
of the prior
case, PCB 87—92.
The Board’s November
19 Opinion
and Order required Winnebago County to hold additional hearings
to introduce the substance of those oral and written contacts.
Winnebago County held such hearings on February 27
and March 10,
1988.
The individual Winnebago County Board members testified
and
introduced copies of
or the substance of those contacts into
the record
to the best of
their abilities.
See generally
Winnebago County Transcripts of February 27
& March
10,
1988;
Stipulation of October
3,
1988.
This was all that the Board’s
Order required.
See City of Rockford v. Winnebago County Board,
No.
PCB 87—92,
at
31.
Although
it would
have been preferable
that the contacts had not occurred,
or even that their
introduction would have been more promptly made into the record
of PCB 87—92,
the Board cannot conclude that Rockford has
demonstrated sufficient
justification for overturning
the
Winnebago County denial:
Rockford had ample opportunity to
present
its case before Winnebago County and assemble its record
93—43 1
—4—
to justify the merits of its
request for landfill siting.
See
Id.
at 27
&
31.
Rockford next argues that
a number of Winnebago County Board
members did not re—evaluate or read the record prior
to the June
9, 1988 decision.
Rockford cites
the testimony of
the Board
members given over timely objection
of counsel during the
September
13,
1988 public hearing and the September
29,
1988
evidentiary deposition of Scott Christiansen.
See generally
Transcript of September 13,
1988; Stipulation of October
3,
1988.
This raises the troubling issue whether
a fundamentally
fair procedure and a decision based exclusively on the Winnebago
County record would require that each Board member voting
familiarized himself
or herself with the record.
The Board believes that
a fundamentally fair process and
a
decision rendered exclusively on the county record would require
each voting county board member
to have gained some degree of
familiarity with
that record
in some way.
However, Rockford’s
argument raises another important issue.
This
is an issue with
which
the United States Supreme Court has had difficulty when
it
considered
it in numerous separate decisions rendered in
a single
case between 1936 and 1941——during the infancy of modern adminis-
trative law.
That issue defines the extent
to which
this Board
can inquire into the Winnebago County Board members’
decisionmaking mental processes by allowing their
interrogation
as
to how and the extent
to which each became familiar with the
record.
The Board adopts the Supreme Court’s position:
each
voting Winnebago County Board member had an individual duty to
somehow familiarize himself
or herself with the county record
prior
to rendering
a vote on the issues involved; however,
this
Board cannot inquire as
to how and the extent to which each
fulfilled that obligation.
As ultimately determined
by the United States Supreme Court
under similar circumstances, where a trial court allowed the
deposition of an administrative decisionmaker regarding his
decisionmaking process:
The
short
of
the
business
is
that
the
secretary should never have been subjected
to
this examination
....
We have explicitly held
in
this
very litigation
that
‘it was
not
the
function
of
the
court
to
probe
the
mental
process
of the secretary.’
United
States
v.
Morgan,
313
U.S.
409,
422
(1941)
(Morgan IV
quoting
Morgan
v.
United
States,
304 U.S.
1,
18
(1938)
(Morgan II)).
This conclusion of the Supreme Court
is especially significant
in
light of
the Court’s prior opinions
in that case.
93—432
—5—
In its initial opinion,
the Court confronted an argument
similar
to that interposed here by Rockford:
the administrative
procedure was flawed because the Secretary had not himself
reviewed the record and testimony before rendering his final
determination.
The Secretary had delegated the conduct of
the
hearings
to a subordinate.
The Morgan
I Court held that the
administrative decisionmaker sits like
a trial judge,
and must
himself or herself personally review the record:
The
“hearing”
is
designed
to
afford
the
safeguard
that
the
one
who
decides
shall
be
bound
in
good
conscience
to
consider
the
evidence,
to
be
guided
by
that alone,
and
to
reach
his
conclusion
uninfluenced
by
extraneous
considerations
....
The
“hearing”
is
the hearing
of
evidence
and
argument.
If
the
one
who
determines
the
facts
which
underlie the order has not considered evidence
or
argument,
it.
is manifest
that
the hearing
has not been given.
It
is
no
answer
to
say
that
the question
for
the court is whether the evidence supports the
findings
and
the
findings
support
the
order.
The
duty
(to
decide
based
on
the
evidence
cannot
be
performed
by
one who
has
not considered evidence or argument.
Morgan
v.
United States,
298
U.S.
468,
480—81
(1936)
(Morgan I).
Thus,
the Court
in Morgan
I would have provided
a basis
to
support Rockford’s inquiry into whether each member
of the
Winnebago County Board had personally reviewed the record.
By the time of the next appeal
in that case,
however,
the
Court had modified its position.
It basically held
that the
right to a hearing
included the right
to present a case before
the administrative agency,
to confront the opposing arguments,
and to obtain a decision based on the evidence presented.
The
Court also observed that
“it was not the function of the court to
probe the mental processes of the Secretary
in reaching his
conclusions
if he gave the hearing the law required.”
Morgan II,
304 U.S.
at 18.
This assertion formed the basis
for the final
Morgan Iv pronouncement of
the law quoted above.
The Morgan IV court found,
“just as
a judge cannot be
subjected
to such
a scrutiny,
so the integrity of the
administrative process must be equally respected.”
Morgan IV,
313 U.S.
at 422.
The court
felt considerations of comity
demanded this result:
“the administrative process
...
is
to be
deemed collaborative instrumentality)
of justice and
its
appropriate independence
...
should be respected
....“
Id.
93—433
—6—
It
is
therefore not permissible for
this Board
to inquire
into how the administrative decisionmaker dealt with the record
in deriving his or her
final determination——so long as
there was
a fair and adequate opportunity
for Rockford
to present testimony
and exhibits
into that
record.
The Board has already concluded
that Rockford had such an opportunity.
See City of Rockford v.
Winnebago County Board,
No. PCB 87—92,
at 27
&
31.
As observed
by the Morgan
IV court:
The
Secretaryl
was
questioned
at
length
regarding the process by which
he reached
the
conclusions
of his order,
including the manner
and
extent
of
his
study
of
the
record
(The
short
of
the
business
is
that
the
secretary should never
have been subjected
to
this examination
Morgan
IV, 313 U.S.
at 422
(emphasis added).
This was essentially the scope of
inquiry permitted by the
hearing officer
at the September
13 hearing.
The Board holds
that the hearing officer erred by allowing inquiry as
to whether
the individual Winnebago County Board members actually read or
accessed the record.
There is,
therefore,
no cognizable evidence
that Winnebago County Board members did not exclusively base
their individual decisions on the record.
Rockford’s third argument
is that Winnebago County
mischaracterized
its proceedings and that some members voiced
contempt of this Board and the entire statutory process.
It
is
immaterial how winnebago County characterized its proceedings and
what its
individual members feel about the statutory process and
this Board, so long as Winnebago County followed those procedures
and rendered its decision according
to
law.
There
is no evidence
that Winnebago County has done otherwise.
Rockford had
sufficient opportunity
to present
its case,
and Winnebago County
based its decision on the six criteria of Section 39.2(a),
Ill.
Rev.
Stat.
ch.
111
1/2, par. 1039.2(a)
(1988),
as required by
law.
Finally, Rockford argues
that
it was prejudiced because
Winnebago County did not separately vote on each individual
criterion.
Rather,
its decision was rendered by
a single vote
asserting that Rockford had met its burden with regard to
criterion four and failed with
regard
to criteria one through
three, five,
and six of Section 39.2(a).
See Petition, Ex.
L.
The Board concludes that this voting procedure did not deprive
Rockford
of
its right
to
a fundamentally fair process and
decision.
it
is the totality of
the Winnebago County decision on
all
six criteria that
is under
review,
and not the votes
of
individual county board members on individual criteria.
Although
it
is often easier
to attack more particularized findings
of
a
93—434
—7—
tribunal,
this Board can see
no right under Section 39.2 to
findings any more detailed than that the applicant either did or
did not meet its burden with regard
to each individual
criterion.
What is important here
is that Winnebago County
exhibited individualized consideration of each criterion.*
See
Waste Management of Illinois,
Inc.
v.
PCB,
123 Ill.
App.
3d 1075,
1083,
463
N.E.2d 969,
975—76
(2d Dist.
1984),
cert.
denied.
For
the foregoing reasons,
the Board holds that Rockford was
not deprived
of fundamental fairness
in the Winnebago County
proceedings.
The Board will now proceed
to consider the merits
of Rockford’s contentions that the Winnebago County decision was
against the manifest weight of the evidence standard.
3.
Manifest Weight
Rockford’s final position
is that the substantive Winnebago
County decision was against the manifest weight of the
evidence.
This Board may only disturb the Winnebago County
decision if the petitioner has proven that the decision
is
against the manifest weight of the evidence on each of criteria
one,
two,
three,
five and six.
Section 1040.1(a).
Therefore,
affirmance
is mandated
if Rockford has failed
to prove Winnebago
County’s decision was against the manifest weight
of the evidence
on any single criterion.
See Waste Management of Illinois,
Inc.
v.
PCB,
123
Ill. App.
3d 1075, 1083,
1091,
463 N.E.2d
969, 976,
981
(2d Dist.
1984),
cert.
denied.
As stated by this Board
in
the past:
Manifest weight of the evidence
is that which
is
the clearly evident, plain and indisputable
weight
of
the
evidence,
and
in
order
for
a
finding
to
be
contrary
to the manifest weight
of
the
evidence,
the
opposite
conclusion
must be clearly apparent.
Industrial Salvage,
Inc.
v.
County Board,
No.
PCB
83—173,
59
PCB
233,
236
(Aug.
2,
1984)
(citing Drogos
v. Willage
of Bensenville,
100
Ill.
App.
3d
48,
426
N.E.2d
1276
(2d
Dist.
1981)
and City of Palos Heights
v.
Packel,
121
Ill.
App.
2d
63,
258
N.E.2d
121
(1st
Dist.
1970)).
*
The Winnebago County Board resolution
of June 9,
1988 set forth
the text of Section 39.2(a), which
is the applicable statutory
language outlining the six criteria,
then immediately summarized
its findings
that Rockford had met Criterion No.
4,
had
failed
to
meet Criteria Nos.
1,
2,
3,
5,
and
6,
and had failed in its
overall burden as
to all six criteria.
See Petition,
Ex.
L.
93—435
—8—
A majority of the Board have concluded that Rockford has
failed
to prove
that the decision below was against the manifest
weight of the evidence with regard
to the proposed siting and
design of the landfill
(Criterion No.
2).
The opinion
of that
majority follows.
Individual members
of the majority may choose
to file supplemental statements explaining their own views on
other
issues.
The Act provides in~significantpart that
a county board
evaluation of
a siting request must turn on whether “the facility
is so designed,
located and proposed
to be operated
that the
p~ublichealth, safety
and welfare will be protected
....“
Section l039.2(a)(jj).
The Board cannot substitute
its judgment
for that of the Winnebago County Board.
The Board concludes that
Rockford has failed
in its burden of persuasion.
The Winnebago County record includes many uncontroverted
facts that could
reasonably have induced
the county
to cautiously
approach any issue
of landfill siting.
Winnebago County may be
among the most susceptible
county
in Illinois
to groundwater
contamination because
it has a “very sensitive geology,”
as
asserted by Dr. Richard C.
Berg of
the State Geological Survey.
County R.
1212.
A generalized map of geological suitability of
areas of Winnebago and Boone Counties indicates that although
some narrow moderately acceptable areas
lie in the vicinity of
the proposed site,
all of the most suitable areas lie in Boone
County.
Rockford Ex.
82
&
83.
Winnebago County
is generally
unsuitable for landfill siting.
County
R.
614—15,
812,
1492
&
1499.
In fact,
the record indicates that Rockford now has one
former landfill and another site on the U.S.
Environmental
Protection Agency’s “Superfund” list awaiting remedial action.*
County
R.
1589,
1612,
1810,
1960
&
2044.
The county has had
experience with surface contamination and the contamination
of
groundwater
forcing the closure of
local wells from two other
former landfills:
the Tipton—Martin and Peoples Avenue sites.
Rockford Ex.
75,
pp. W—ll
& R—l8.
Further, citizens’ statements
in the record indicate numerous wells have been closed
in the
*
The Comprehensive Environmental Response, Compensation and
Liability Act of
1980,
or
“Superfund,”
42 U.S.C. Secs.
9601—9675
(1987)
Pub. L. 96—510, Title
I, Stat 2767
(1980),
as amended,
provides for the designation of contaminated sites
for
environmental remedial action.
42 U.S.C.
sec.
9605.
One
is the
existing Pagel’s Pit landfill
in Rockford.
The other site
is the
Acme Solvent facility at Morristown.
See
40 CFR 300,
app.
B
(1987).
Both are about
a mile from the proposed landfill
site.
See Rockford Ex.
83.
Another site on
the National Priorities
List
is
the Belvidere Municipal Landfill
in Boone County, which
is
in close proximity
to Rockford.
See
40 CFR 300,
App.
B.
9 3—436
—9—
county and
in Rockford due to contamination of
the groundwater.
County R.
1213,
1463,
1589,
1810,
1863—66,
1941,
1960,
1987—88,
1997, 2044
&
2119;
see also County R.
1650—51.
Clarence D.
Beatty,
a Rockford witness, conceded
that all landfills pose some
potential
for groundwater contamination.
County R.
106;
see also
Rockford Ex.
80,
p.
33
(report by Dr. Richard
c. Berg,
another
Rockford witness).
He believed the protection of groundwater
resources was the most important aspect
to landfill siting,
design,
and operation.
County
R.
42.
A cautious approach would
therefore have been generally supported by the county record, but
more so
in light of facts more specific to the site.
The glacial till under the
site overlies
a major aquifer,
County
R.
256—57,
361,
714,
1832, 1853—54;
see Rockford Ex.
11,
pp.
1—13 to 1—17; Rockford Ex.
12,
pp.
111—17 to 111—19, which
may provide water
to well over
1,000 local wells.
County
R.
1870;
see Rockford Ex.
11,
p.
1—19 to 1—21.
The till includes
sand lenses or seams,
as indicated by the site borings.
Rockford
Ex.
11,
p.
1—12; Rockford Ex.
12,
pp.
111—1
to 111—17; Rockford
Ex.
66
& 67; County
R.
722—52,
841—46, 899—901, 946—48,
1215,
1486,
1651—53,
1694—96,
1713—17,
1751—53,
1854
&
1858.
Whether
there
is
continuity
between
these
is
disputed,
but
the
record
indicates
no
tests
of
continuity
were
performed.
County
R.
1651—
52.
No
test
trenches
were
dug
on
the
site
to
determine
continuity,
but excavations into the
till on properties within
reasonably
short distances
of the proposed site encountered sand
seams
or lenses that discharged varying volumes up
to copious
amounts of water.
County R.
1961,
1969
& 2072.
According
to Dr.
Douglas
A. Block,
testifying against Rockford, sand lenses may
interconnect at different levels because the till is unpre-
dictable in content and on the horizontal aspect.
County
R.
1481—84.
Further raising questions
of site suitability is the
potential existence of vertical,
sand—filled fractures
in the
till of uncertain extent and occurrence.
Rockford Ex.
59,
p.
17;
County R.
732—33, 740—46,
1695—97, 1714—17
& 2183—84.
These
could conceivably communicate with the underlying
aquifer and act
to
increase permeability of the till.
County R.
1695—97.
The aquifer lies
in the fractured dolomite bedrock, County
R.
614,
1696—97
& 1710—11,
and overlying thick sand and gravel
layer beneath
the till.
Rockford Ex.
12,
pp.
1—2
& 111—1
to 111-
17; Rockford Ex.
66
& 67; County
R.
140, 238,
252,
616, 842,
1400,
1488,
1840—41,
1852, 2142—43
&
2228.
The base of the till
defines the top of the major aquifer
that lies in the bedrock and
sand and gravel beneath the proposed site.
County R.
1441.
The
sand—and—gravel—covered bedrock slopes eastward into a deep,
sand—and—gravel—filled pre—glacial drainage valley which
is
a
significant potential groundwater source.
Rockford Ex.
11,
pp.
1—7
to 1—6;
Rockford Ex.
59,
p.
9; County R.
1858.
The site
is
a
groundwater
recharge area
into the underlying aquifer and that of
the bedrock valley.
County
R.
1841,
1854
& 2217—18;
see Rockford
Ex.
80, pp 26
&
30.
93—437
—10—
In the opinion of
Dr. Musa Qutub, who testified against
Rockford, this site poses
a threat
of groundwater contamination,
County
R.
1854—57,
and the siting
of landfills
over pre—glacial
drainage areas
is something generally to avoid.
County
R.
1861.
Pieter Braam and Dean W.
Ekberg,
who also testified for
Save The Land,
felt the subsurface geology and uncertainties
in
the piezometric contour beneath the site precluded a conclusion
that this site was adequate.
County
R.
1387—1423,
1455,
1623—26,
1647
& 1703—04.
In all,
four Rockford witnesses testified that the location
was favorable for landfill siting:
Robert M.
Robinson, County
R.
144,
151,
204
& 365—66; Clarence D. Beatty, County
R.
125;
William T.
Shefchik, County
R.
611
&
668;
and Roberta
L.
Jennings, County
R.
873.
One Rockford witness,
Dr. Richard Berg,
somewhat equivocally testified that the site was somewhat better
than one would expect
in Winnebago County.
County
R.
1216.
Five
witnesses testified the site was not proven acceptable or was
unacceptable
for landfill siting:
Dr. Musa Qutub, County
R.
1861
&
1867—68;
Dr.
Douglas
A.
Block,
County
R.
1491
& 1503—04; Pieter
Braam,
County
R.
1421;
Dr.
Yaron
M.
Sternberg,
County
R.
1653—54;
and
Dean
W.
Ekberg,
County
R.
1724.
Additional evidence
in the record supporting
this conclusion
relates
to the landfill design.
The proposed landfill had
an
inward-gradient design with
a gravel surcharge layer
beneath its
liner.
The gravel surcharge layer renders this
a novel design
which has not been used elsewhere to date.
County
R.
1717—18,
1768,
1771—73,
1797,
2163, 2210
&
2212.
Dr. Sternberg and Dean
Ekberg felt there was
a possibility of failure and
a continuing
need
to pump water
into the surcharge layer
in perpetuity to
avoid groundwater contamination.
County
R.
1634—39
& 1718—19.
There was further an issue raised
in the record whether prior
landfills with the inward—gradient aspect of
this design had
failed and contaminated groundwater.
County R.
903—08.
This
evidence would
tend to at least
raise questions whether the
design was appropriate,
and would tend
to highlight any concerns
over the adequacy of the proposed location.
Rockford has not proven the decision of the Winnebago County
Board
is against the manifest weight
of the evidence.
In summary,
the Board affirms the June
9,
1988 Winnebago
County denial of landfill siting.
That decision was timely and
the result of
a fundamentally fair process.
Rockford has not
shown that Winnebago County’s determination that the proposed
landfill
is
not so sited,
designed,
and proposed to
be operated
in such
a manner that
is protective of human health,
safety and
welfare
is against the manifest weight
of the evidence.
The Board notes
its concern with
a portion of
the recent
decision of the Second District
in Waste Management
of Illinois
93—438
—11—
v.
The
Pollution
Control
Board
and
Lake
County
Board,
No.
2—88—
0212,
Slip
Opinion
(November
7,1988).
A
portion
of
that
decision
states that this Board must enunciate
a review of each challenged
statutory criterion in
a proceeding such
as this one.
The Slip
Opinion was received by this Board less than
five working days
prior
to this decision date;
thus,
its impact on the deliberation
of this case has been minimal.
Further,
the Board must state
that
it respectfully disagrees with the Second District on this
issue,
and will urgently pursue modification through all
available avenues.
The Board
notes that
today’s opinion constitutes
the forty—
sixth landfill siting decision rendered
by this Board. Each
of
those decisions represents an accommodation between two opposing
forces.
The first is the extremely short time frame allowed for
Board decisionmaking
on records that may easily run several
thousand pages
of transcripts
(and twice that number
of pages
of
exhibits).
The second
is the ability of
four or more Board
members
to reach agreement on a particular detailed explanation
of the controversial and complex issues.
The Board has
historically felt that
the obligation
to provide “Orders and
determinations,”
Ill.
Rev.
Stat.
ch.
111
1/2,
par.
1040.1(a)
(1988),
in these proceedings
includes
a duty to provide an
explanation of the facts and law upon which this Board
relied
in
reaching its decision.
~1most all
of the landfill
siting decisions which are
appealed
to this Board simply list which criteria the applicant
has met or not met.
Those decisions seldom explain how or why
the lower body decided any of the criteria, nor do they exlain
upon which facts reliance was placed.
The courts have
specifically approved decisions that simply inform the applicant
which criteria have been met or not met.*
The first articulation
*
As stated
by the Second District and upheld
by the Supreme
Court:
Nothing
in
the
statute
would
require
a
detailed
examination
of
each
bit
of
evidence
or
a
thorough
going
exposition
of
the
county
board’s
mental
processes.
Rather,
the
county
board
need
only
indicate
which
of
the
criteria,
in
its
view,
have
or
have
not
been
met,
and this will be sufficient
if the record
supports these conclusions so that an adequate
review
of
the
county
board’s
decision may
be
made.
The assertion
that
the county board’s
opinion must state
from which
of
the criteria
the
conditions
flow
finds
no
basis
in
the
statute.
continued
93—439
—12—
to this Board
of the
“why and how” generally appears
in the
closing briefs,
frequently less than 30 days prior
to the
statutory deadline
for decision.
At that point
for
the first
time the petitioner may explain the facts and law upon which it
relies
to argue that the decision below
is incorrect.
In reply,
for
the first time,
the respondent may provide facts and law to
support the propriety of the decision below.
Some of
these
after—the—fact
rationalizations
leave
much
to
be
desired
in
both
quality
and
detail.
This
Board
has
preferred
to
explain
the
why
and
how
of
its
decision
at
the
time
that
decision
is
rendered.
But
it
must
do
so
only
to
the
extent
that
time
and
circumstances
allow,
and
only
to
the
extent
that
a
majority
of
the
Board
can
agree
on
the
“why
and
how”.
This
Board
could
easily
take
a
roll
call
vote
on
each
contested
criterion,
and
provide
an
order
affirming
or
reversing
the
decision
below.
However,
that
process
would
not
provide
an
explanation
of
why
the
Board
felt
that
any
specific
criterion’s
decision
was
correct
or
incorrect.
The
resulting
one
page
orders
would
“deny
the
parties,
and
the
reviewing
court,
the
benefit
of
the
PCB’s
expertise.”
(Waste
Management,
slip
op.
at
13).
Today’s
Opinion
represents
a
rationale
upon
which
a
majority
of
the
Board’s
members
agree.
The
Board
would
hope
that
the
parties
and
the
reviewing
courts
would
benefit
more
from
these
explanations
than
they
would
from
another
roll
call
vote
without
explanation.
This
opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions
of
law
in
this
matter.
ORDER
The
June
9,
1988
decision
of
the
Winnebago
County
Board
denying
landfill
siting
approval
to
the
City
of
Rockford
is
affirmed.
IT
IS
SO
ORDERED
Board
Members
Joan
Anderson
and
J.
Theodore
Meyer
dissented.
E
&
E
U.auling,
Inc.
v.
PCB,
116
Ill.
App.
3d
586,
616,
451
N.E.2d
555,
577—78
(2d
Dist.
1983),
aff’d,
107
Ill.
2d
33,
481
N.E.2d
664
(1985).
(quoted
in
Waste
Management
of
Illinois
v.
McHenry County Board,
No.
PCB 88—39,
slip
op.
at
4
(Aug.
4,
1988)).
93—440
—13—
I, Dorothy
M. Gunn,
Clerk
of
the Illinois Pollution Control
Board,
hereby certify that the abo~ pin~~andOrder was
adopted on the
/71Z
day
of _________________________
_____
_________________________,
1988, by
a
vote
of
.5—2~
.
IllinoL
‘Pollution Control Board
93—441
