ILLINOIS POLLUTION CONTROL BOARD
    June 30, 1988
    GERALD CLUTTS,
    Petitioner,
    v.
    )
    PCB 88—43
    HERMAN
    L. BEASLEY,
    )
    Respondent,
    and
    ALEXANDER COUNTY BOARD OF
    COMMISSIONERS,
    Co—Respondents.
    MR. STEVEN D. APPLEGATE, OF APPLEGATE AND MAURIZIO, APPEARED ON
    BEHALF OF THE PETITIONER
    MR. MICHAEL P. O’SHEA, JR., ATTORNEY AT LAW, APPEARED ON BEHALF
    OF THE RESPONDENT, BEASLEY
    MR. MARK H. CLARKE, STATE’S ATTORNEY, APPEARED ON BEHALF OF
    RESPONDENT, ALEXANDER COUNTY BOARD
    OPINION AND ORDER OF THE BOARD (by Michael Nardulli):
    This matter comes before the Board on a March 4, 1988
    petition to contest granting of site approval, filed by Gerald
    Clutts. The petition seeks review of a February 4, 1988 decision
    of Respondent Alexander County Board of Commissioners and
    granting site approval of Respondent Herman L. Beasley’s proposed
    non—hazardous waste landfill to be located on Mr. Beasley’s
    property. The Board held a public hearing on this petition for
    review was held on April 29, 1988 in Cairo, Alexander County.
    Mr. Beasley submitted an application for siting approval of
    a non—hazardous solid waste landfill to be located in Alexander
    County, Illinois. The landfill is proposed for an eighty—three
    (83) acre site in Thebes, Alexander County. Twenty (20) acres
    will be used for landfill. The Alexander County Board held
    public hearing on the application on January 29, 1987 and
    December 17, 1987. The Alexander County Board approved the
    application on February 4, 1988 by a vote of 2 to 0 and site
    approval was granted.
    The Petitioner filed a motion to strike the Respondent
    Beasley’s and Co—Respondent Alexander County Board of
    Commissioner’s briefs because they failed to hand deliver the
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    briefs to the Petitioner’s counsel by May 17, 1988 as required by
    the hearing officer at the Board’s April 29, 1988 hearing. The
    briefs were instead mailed to the Petitioner’s counsel on May
    27. The Petitioner did not receive the briefs until May 31
    four days after it was due. That allowed the Petitioner less
    time to prepare his reply brief which was to be filed by June 6,
    1988.
    To remedy this situation, the hearing officer issued an
    order giving the Petitioner leave to file his reply brief
    instanter on or before Friday, June 10, 1988. This action
    corrects any compromise of Petitioner’s situation that resulted
    from the late filing by the Respondents. Consequently the
    Petitioner’s motion is denied.
    Statutory Framework
    At the local level, the site location suitability approval
    process is governed by Section 39.2 of the Act. Section 39.2(a)
    provides that local authorities are to consider six criteria when
    reviewing an application. The six criteria are:
    1. the facility is necessary to accommodate
    the waste needs of the area it is intended
    to serve;
    2. the facility is so designed, located and
    proposed to be operated that the public
    health, safety and welfare will be
    protected;
    3. the facility is located so as to minimize
    incompatibility with the character of the
    surrounding area and to minimize the
    effect on the value of the surrounding
    property;
    4. the facility is located outside the
    boundary of the 100 year flood plain as
    determined by the Illinois Department of
    Transportation or the site is floodproofed
    to meet the standards and requirements of
    the Illinois Department of Transportation
    and is approved by that Department;
    5. the plan of operations for the facility is
    designed to minimize the danger to the
    surrounding area from fire, spills, or
    other operational accidents; and
    6. the traffic patterns to or from the
    facility are so designed as to minimize
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    the impact on existing traffic flows.
    Section 40.1 of the Act charges this Board with reviewing
    the County Board’s decision. Specifically, this Board must
    determine whether the County Board’s decision was contrary to the
    manifest weight of the evidence, and whether the procedures used
    at the local level were fundamentally fair. E&E Hauling, Inc. v.
    Illinois Pollution Control Board, 116 Ill. App. 3d 586, 451 N.E.
    2d 555 (2nd Dist. 1983), aff’d in part 107 Ill. 2d 33, 481 N.E.
    2d 664 (1985); City of Rockford v. IPCB, 125 Ill. App. 3d 384,
    386, 465 N.E. 2d 996 (1984); Waste Management of Illinois, Inc.,
    v. I?CB, 122 Ill. App. 3d 639, 461 N.E. 2d 542 (1984). The
    standard of manifest weight of evidence is:
    A verdict is
    ...
    against the manifest weight
    of the evidence where it is palpably
    erroneous, wholly unwarranted, clearly the
    result of passion or prejudice, or appears to
    be arbitrary, unreasonable, and not based upon
    the evidence. A verdict cannot be set aside
    merely because the jury County Board could
    have drawn different inferences and
    conclusions from conflicting testimony or
    because a reviewing court IPCBI would have
    reached a different conclusion
    ..
    When
    considering whether a verdict was contrary to
    the manifest weight of the evidence, a
    reviewing court IPCB must view the evidence
    in the light most favorable to the appellee.
    Steinberg v. Petra, 139 Ill. App. 3d 503, 508
    (1986).
    Consequently, if after reviewing the record, this Board
    finds that the County Board could have reasonably reached its
    conclusion, the County Board’s decision must be affirmed. That a
    different conclusion might also be reasonable is insufficient;
    the opposite conclusion must be evident. (See Willowbrook Motel
    v. IPCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist. 1985)).
    The Petitioner challenges the County Board’s decision in the
    matter because the County Board failed to make a written decision
    specifying the reasons for the decision as required by 39.2(e) of
    the Act. The Petitioner also challenges the County Board’s
    finding that criteria one, two, three, five and six from Illinois
    Revised Statute Chapter ll11/~, 1039.2(a) were met. No challenge
    is made regarding criterion four.
    90—509

    —4—
    FUNDAMENTAL FAIRNESS
    The Board is charged with deciding whether the County
    Board’s decision was contrary to the manifest weight of the
    evidence and whether the procedures used at the local level were
    fundamentally fair. The Respondent makes no direct argument
    challenging the County Board’s procedures or the basis for the
    decision. In a review of the record, the Board finds the
    procedures employed by the County Board to be fundamentally
    fair. The procedures included public hearings in front of the
    County Board. Anyone interested was given an opportunity to
    testify or present witnesses and evidence. The Petitioner was
    represented by counsel and given an opportunity to examine or
    cross—examine any of the participating parties. There is no
    indication that the Petitioner was not given the opportunity to
    present his complete argument against the landfill or completely
    exhaust his legal rights.
    The Petitioner argues that the decision of the County Board
    should be reversed because the Respondent Beasley failed to cause
    written notice of his request for site location approval to be
    served on the owners of all property within 250 feet in each
    direction of the lot line of subject property, and upon the
    appropriate members of the General Assembly, within the time
    limits established in the Illinois Environmental Protection Act,
    Ill. Rev. Stat. 1987, ch. 1l3~1-/2par. 39.2(b). Section 39.2(b)
    provides for actual notice to members of the General Assembly and
    other interested persons “(n)o later than fourteen days prior to
    a request for location approval....” Petitioner suggests that
    Respondent Beasley erred by informing these interested parties
    fifteen days in advance of filing his application for approval of
    a new pollution control facility, rather than fourteen days or
    less therefrom.
    Neither the courts nor the Board construe this Section in
    the same manner as the Petitioner. It is more reasonable to
    maintain that the Section is intended to allow interested parties
    more notice of the hearing rather than less. Browning Ferris
    Industries v. IPCB, 154 Ill. App. 3d 89, 506 N.E.2d 372 (5th
    Dist., 1987) The Board finds that the Section should be read to
    require, the applicant to notify the effected parties at least
    fourteen (14) days prior to requesting approval.
    The Petitioner maintains that the decision by the Co—
    Respondent County Board was in violation of Section 1039.2(a)
    because the County Board failed to make a written decision
    specifying the reasons for the decision. While The County Board
    did issue a written decision in this matter (Ex3—9), the
    Resolution did not specify the reasons for the decision.
    Although the statute does require the County Board to make
    written decisions which specify the reasons for its decisions,
    “such reasons to be in conformance with subsection (a) of this
    Section” (Ill. Rev. Stat. 1981, ch. ll~1/~ par. 1039.1(e)), the
    statute does not require a detailed examination of the evidence
    90—sin

    —5—
    or a review of the County Board’s decision process. The Courts
    have interpretted this language to mean that the County Board
    need only indicate that the criteria have or have not been met.
    This writing will be sufficient if the record supports these
    conclusions so that an adequate review of the County Board’s
    decision may be made. A detailed explanation of the relation
    between the conclusions and the criteria is not necessary. E&E
    Hauling, Inc. v. Illinois Pollution Control Board, 116 Ill. App.
    3d 586, 451 N.E.2d 555 (2nd Dist. 1983), Aff’d in part 107 Ill.
    2d 32, 481 N.E.2d 664 (1985). The Board holds that the evidence
    supports that decision.
    STATUTORY CRITERIA
    The Board also does not find that the decision of the County
    Board was contrary to the manifest weight of the evidence. The
    case presented by Respondent Beasley included his own testimony
    concerning the need for a landfill, the testimony of the engineer
    designing the landfill and the testimony of two residents who
    maintained that a landfill was required. The Petitioner and
    another resident testified against the landfill and were given an
    opportunity to cross—examine the Respondent’s witnesses, question
    members of the County Board and submit questions after the first
    hearing. On review, the decision of the County Board appears
    consistent with the manifest weight of the evidence and clearly
    meets the minimum standard of not being contrary to the manifest
    weight of the evidence.
    As previously noted, the Petitioner contests the decision of
    the County Board under 39.2(a) of the Act. Because the decision
    of the County Board must satisfy each of these requirements
    independently, these arguments will be addressed individually:
    1039.2(a) Criterion One
    The first criterion the County Board needed to consider is
    whether the facility is necessary to accommodate the waste needs
    of the area it is intended to serve. The Petitioner maintains
    that this criterion was not met but fails to elaborate on his
    contention by providing references to the record to support the
    contention. In a petition of this nature, it is the Petitioner
    that assumes the burden of proving that the decision of the
    County Board was in error. This Board has previously stated that
    “wihere 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”. Valessares v.
    The County Board of Kane County, 79 PCB 106, 125 (PCB 87—36; July
    16, 1987). Nevertheless, the Board has reviewed the arguments of
    both parties and the record. Based upon the review, the Board
    finds that the County Board’s decision on criterion one was not
    against the manifest weight of the evidence. Therefore, the
    90—511

    —6—
    County Board’s decision on criterion one is upheld.
    Beasley testified that the landfill was needed in the area
    because the closest landfill, in Mounds, Illinois, was open only
    from 10:00 a.m. to 3:00 p.m., five days a week and the
    alternative dump was located in Mayfield, Kentucky (Tl at 5)*.
    Further, two residents of Thebes, who live along Route 1,
    testified that the development of a landfill in the area would
    alleviate some of the areas solid waste problems. (Tl at 16—
    19). There was no evidence presented to show that a landfill was
    not required. This Board finds that the Alexander County Board
    could have reasonably concluded that the facility is necessary to
    accommodate the waste needs of the area it is intended to serve.
    Criterion Two
    The second criterion to be considered by the County Board is
    whether the proposed facility is so designed, located and
    proposed to be operated that the public health, safety and
    welfare will be protected. The Petitioner contends that this
    criterion was not met, but again fails to carry the burden of
    proof that the determination is in error. The Board’s review of
    the record and arguments shows that the Respondent has employed
    an experienced landfill design engineer who states he has
    designed the proposed landfill in compliance with the standards
    set for non—hazardous waste landfills by the Illinois
    Environmental Protection Agency (TI at 6—11, T2 at 2—9). The
    engineer was examined by members of the County Board (Tl at 11-
    16, T2 at 9—12) and was cross—examined by the Petitioner (Tl at
    21—28, T2 at 20—29). Based upon the review, the Board finds that
    the County Board’s decision on criterion two was not against the
    manifest weight of the evidence. Therefore, the County Board
    decision on criterion two is upheld.
    Criterion Three
    The third criterion set forth in Section 39.2 is whether the
    facility is located so as to minimize incompatibility with the
    character of the surrounding area and to minimize the effect on
    *
    Citations from the transcripts of the Alexander County Board
    meeting on January 29, 1987 will be identified as “Tl—_______
    Exhibits from the Alexander County Board meeting will be
    designated as “Ex 1—
    _________“.
    Citations from the transcripts
    of the Alexander County Board meeting of December 17, 1987 will
    be identified as “T2
    “.
    Exhibits from the December
    17, 1987 Alexander County Board meeting will be designated as “Ex
    2
    “.
    The citations and exhibits from the Pollution
    Control Board hearing on this petition will be identified as “T3
    and Ex 3
    respectively.
    90—5 12

    —7—
    the value of the surrounding property. The Petitioner argues
    that the proposed facility does not meet this criterion.
    Petitioner contends that the area surrounding the proposed site
    is agricultural and residential in nature and is devoid of
    industrial influences. The Petitioner further maintains that the
    landfill could result in polluted water in the stream and
    underground. This water is presently the source of the
    Petitioner’s potable water and the water used by his cattle (Ti
    at 19, T2 at 19). The Petitioner also expressed concerns about
    the odor from the landfill (T2 at 20) and presented an affidavit
    from the Chairman of the Board of a bank which indicates that the
    value of the Petitioner’s land would go down if the landfill is
    permitted. (EX 2—1). The Petitioner, and other landowners
    testifying at the hearing, requested that they be given
    assurances against the loss of land value and the contamination
    of their water, either by the Respondent Beasley or the County
    Board (Tl at 20). The Petitioner also maintains that there are
    better locations on which the landfill should be built.
    While the Respondents could not give the Petitioner
    assurances to prevent the contamination of their water or the
    loss of property value, the testimony of the engineer supplies a
    basis for the County Board’s decision. The design engineer
    testified that the landfill was designed, located and proposed to
    be operated in compliance with Illinois Environmental Protection
    Agency standards.
    The Board also points out that the statute requires that the
    location of the facility minimize incompatibility and effect on
    property values. That language should not be read to ask whether
    there is a “better” location for the facility. The Petitioner
    has failed to show that the landfill site was selected without
    attempting to minimize incompatibility in this case. Based upon
    the review, the Board finds that the County Board’s decision on
    criterion three was not against the manifest weight of the
    evidence. Therefore, the County Board’s decision on criterion
    three is upheld.
    Criterion Five
    Criterion five of Section 39.2 requires that the plan of
    operations for the facility is designed to minimize the danger to
    the surrounding area from fire, spills, or other operational
    accidents. Petitioner argues that the County Board does not have
    any guarantees that the facility will be operated correctly (Ti
    at 20).
    Again, however, the testimony of the design engineer
    supplies the basis for the County Board’s decision. The engineer
    states that I.E.P.A. standards will be followed, groundwater will
    be monitored, daily cover will be supplied and the compliance
    will be ensured by routine inspections by the Illinois
    Environmental Protection Agency. While the evidence at hearing
    00—513

    —8—
    may not have answered all of the concerns of the Petitioner and
    other residents, the County Board’s decision was not contrary to
    the manifest weight of this evidence. It is also important to
    note that no evidence was introduced by the Petitioner
    identifying operational problems that might exist. Based upon the
    review, theBoard finds that the County Board’s decision on
    criterion five was not against the manifest weight of the
    evidence. Therefore, the County Board’s decision on criterion
    five is upheld.
    Reference also was made to an Agency inquiry letter which
    resulted in Beasley voluntarily covering and sowing trash he had
    dumped on his property on May, 1986. However, information on
    past violations are not to be considered in the decision of the
    County Board for landfill siting cases.
    **
    Watts
    v.
    City of
    Rock Island, PCB 83—167, slip opinion at 18, March 8, 1984.
    Criterion Six
    The final criterion applicable to this case is whether the
    traffic patterns to and from the facility are so designed as to
    minimize the impact on existing traffic flows. The Petitioner
    expressed concern about the effect that the proposed landfill
    will have on traffic (Ti at 20). It was also noted that Beasley
    has not filed any traffic impact study (Tl at 46) and has not
    made any arrangement to maintain the road to the landfill (T2 at
    37). Beasley states that he intends to haul from three to to six
    truckloads a day to the dump (T2 at 38). The road being used by
    Beasley’s trucks is presently being used by timber trucks, LP gas
    trucks, grain trucks, farm trucks and cars, as well as by Mr.
    Beasley’s trucks and the trucks of other trash disposal companies
    (Ti at 47—49).
    Again, as with all of the other criteria under 39.2(a), the
    Petitioner has failed to meet his burden of proving that the
    County Board’s decision was against the manifest weight of the
    evidence regarding traffic. While the residents of the area
    expressed concern about the change in traffic patterns, the only
    testimony of any change was that up to six (6) of Mr. Beasley’s
    trucks would go to the landfill each day. Based on this
    evidence, the County Board could fairly conclude that the impact
    on traffic would be minimal. The request for Beasley to maintain
    the road is inappropriate under this criteria, and need not be
    **The Board notes that the following language effective July 1,
    1988 has been added to Section 392 of the Act.”The county board
    or the governing body of the municipality may also consider as
    evidence the previous operating experience and past record of
    convictions or admissions of violations of the applicant (an any
    subsidiary or parent corporation) in the field of solid waste
    management when considering criteria (ii) and (v) under this
    Section.”
    90—5 14

    —9—
    addressed. Based upon the review, the Board finds that the County
    Board’s decision on criterion six was not against the manifest
    weight of the evidence. Therefore the County Board’s decision on
    criterion six is upheld.
    This Opinion constitutes the Board’s finding of facts and
    conclusions of law in this matter.
    ORDER
    The February 4, 1988 decision of the Alexander County Board
    granting site location suitability approval to Herman L. Beasley
    is hereby affirmed.
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1985, ch. ll3~/2par. 1041, provides for appeal of final
    Orders of the Board within 35 days. The Rule of the Supreme
    Court of Illinois establish filing requirements.
    Board Member J. Marlin concurred.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the abov Opinion and Order was
    adopted on the .~fo~tz day of
    ___________________,
    1988, by a
    vote of 7—0
    .
    Ill
    on Control Board
    90—515

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