ILLINOIS POLLUTION CONTROL BOARD
January 21, 1988
McLEAN COUNTY DISPOSAL
COMPANY, INC.,
)
)
Petitioner,
v.
)
PCB 87—133
THE COUNTY OF McLEAN,
)
Respondent.
THOMAS J. IMMEL (IMMEL, ZELLE, OGREN, McCLAIN, GERMERAAD &
COSTELLO), APPEARED ON BEHALF OF McLEAN COUNTY DISPOSAL, INC.;
and
ERIC T. RUUD, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF OF
McLEAN COUNTY.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on an August 31, 1987
petition for review. Petitioner, McLean County Disposal, Inc.,
seeks review of the decision of the McLean County Board denying
site approval of petitioner’s proposed regional pollution control
facility.
Procedural History
On January 22, 1987 petitioner submitted its application for
siting approval of a non—hazardous solid waste landfill to be
located in McLean County, Illinois. Petitioner proposed
construction of a 45.75 acre landfill located in the northerly
portion of a 103—acre tract of land owned by petitioner. This
tract is located adjacent to the unincorporated hamlet of
Randolph, Illinois, and immediately south of McLean County
Highway 36 (also known as Road 625 North). Petitioner submitted
a $12,000 filing fee with the application.
On February 19, 1987 the county board’s pollution control
Site hearing committee (hearing committee) rejected the
application. This rejection was based upon a county resolution
setting forth procedures for hearing regional pollution control
facility siting requests. Section 33.04 of that resolution
provides that “nb application for site approval shall be deemed
to have been filed or accepted for filing unless all requirements
of this resolution
. . .
shall have been met.” The hearing
committee found that the application was deficient in seventeen
85—20 1
—I.—
areas and thus not complete. Petitioner subsequently submitted
supplemental information. That information included the
following disclaimer:
“All of the foregoing information is being
provided so as to meet the requirements of
the County Ordinance (sic and to
specifically address objections raised in
the County Board’s Resolution of February
19. In providing this information, the
applicant does not waive any objections
that it has to the nature and content of
the County Ordinance sic or to any
actions taken by the County Board since
January 22, 1987 or thereafter, all of
which objections are specifically
preserved.” (County Record, Document #17,
p. 8 (hereinafter Doc.
#).)
On March 17, 1987 the hearing committee accepted the application
and directed the county clerk to deem it filed as of that date.
The hearing committee held sixteen public hearings between
June 16, 1987 and July 8, 1987. In addition to petitioner,
Citizens Against the Randolph Landfill, Inc. (C.A.R.L.) was
represented by counsel an~d participated in the hearings.
Petitioner presented five witnesses, and C.A.R.L. called six
witnesses. The sixteenth hearing was reserved for public
comment. At that hearing twenty—eight members of the public
spoke against the application, and fifteen people spoke in favor
of the proposal. Individual county board members received
numerous letters and petitions from the public, both before and
after the hearings. These letters and petitions were entered
into the county record.
On August 10, 1987 the McLean County staff presented its
report to the hearing committee. This staff report is provided
for by Section 33.85(N) of the county resolution, and was
prepared by the director of the building, zoning, and staffing
department, the director of the health department, the director
of environmental health, a senior engineer with the county
highway department, the director of the regional planning
commission, a technical advisor, an assistant state’s attorney,
and the supervisor of assessments. On August 11, 1987 the
hearing committee made its findings and recommendations to the
full county board. The hearing committee found that petitioner
had met criteria 1, 4 and 5 of Section 39.2(a) of the
Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch.
1111/2, par. 1039.2(a)), but found that petitioner had not met
criteria 2, 3, and 6. Therefore, the hearing committee
recommended that petitioner’s application for site approval be
denied. On August 18, 1987 the full county board adopted the
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findings and recommendations of the hearing committee and denied
the application by a vote of 17—2, with one abstention.
The Board hearing in this matter was held on October 29,
1987.
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 authojities 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 the Transportation and is approved by that
Department;
5. the plan of operations for the facility is designed to
minimize the danger to the surrounding area from fire,
spills, or other operational accidents; and
6. the traffic patterns to or from the facility are so
designed as to minimize the impact on existing traffic
flows.
Section 39.2(e) states that if no final action is taken by the
local authorities within 180 days of the filing of the request
for site approval, the applicant may deem the request approved.
Section 40.1 of the Act charges the Board with reviewing the
decision of the local authorities. Specifically, the Board is
mandated to determine whether the findings made below regarding
the six criteria are against the manifest weight of the evidence,
1Section 39.2 of the Act has been amended since the time of the
instant proceedings.
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and whether the procedures used there were fundamentally fair. E
& E Hauling, Inc. v. 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); Waste Mgt. of Ill., Inc. v. McHenry
County Board,
_____
Ill. App. 3d
_____,
_____
N.E. 2d
____,
No.
2—87—0029 (2nd Dist. September 11, 1987) (reaffirming application
by the Board of the manifest weight of the evidence standard of
review to each criterion).
Petitioner raises three issues: (1) whether the county’s
failure to take final action on the application within 180 days
after it was submitted constitutes a default; (2) whether the
county’s procedures were fundamentally unfair and (3) whether the
county’s decision that the application did not satisfy criteria
2, 3, and 6 was against the manifest weight of the evidence.
Because the Board finds that the county failed to take final
action within 180 days, as required by Section 39.2(e), the
second and third contentions will not be discussed.
180—Day Default
As noted above, petitioner submitted its application and the
required filing fee on January 22, 1987. On February 19, 1987,
the application was rejected by the hearing committee, pursuant
to the terms of the county resolution. Petitioner then filed
supplemental information, but stated that it did not waive any
objections to the nature and content of the county resolution or
to actions taken by the county board. The hearing committee
accepted the application on March 17, 1987 and deemed it filed as
of that day. The full county board made its decision rejecting
the application on August 18, 1987.
Petitioner argues that since it submitted the application on
January 22, the date for final action by the county board was
July 23. Since the county board did not make its decision until
August 18, petitioner contends that the action was untimely and
thus the siting request should be deemed approved by default.
Petitioner admits that the county did not deem the application
filed until March 17, but argues that the county has no authority
to extend a running limitation period by accepting or rejecting
an application for filing. Petitioner points out that Section
39.2(e) of the Act specifically provides for final action by the
local authority within 180 days of the filing of an application,
and that Section 39.2(d) requires at least one public hearing.
Petitioner contends that the statute makes no provision for
deciding that a document is filed on any date other than the date
it is submitted, and does not allow a county or municipality to
make any final determination on an application without holding a
public hearing.
In response, the county argues that it has authority to
determine what constitutes a “request” for siting approval. The
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county states that a county board may exercise powers which are
necessarily implied from those powers expressly granted by the
legislature. McDonald v. County Board of Kendall County, 146
Ill. App. 3d 1051, 497 N.E. 2d 509 (2d Dist. 1986), appeal denied
113 Ill. 2d 576, 505 N.E. 2d 453 (1986). The county notes that
section 39.2 provides for public hearings, the imposition of
conditions upon siting approval, and filing fees, but does not
further define such terms. Thus, the county asserts that it
impliedly has the power to develop procedures for hearings,
create conditions, and set the amount of filing fees. Likewise,
the county argues that it impliedly has the power to determine
what a “request” for siting approval must include.
The Board agrees with petitioner that a county or
municipality does not have the authority to extend the 180—day
deadline without a waiver by the applicant. Section 39.2
establishes the exclusive procedures to be used by localities
when reviewing siting applications. That section, through the
180—day deadline placed upon final action by a locality, shows
the legislature’s intent to move the regional pollution control
facility siting process at a quick pace. Such intent is also
shown in section 40.1, which allows the Board only 120 days to
take final action on a siting appeal. The legislature, in
providing that a site may be deemed approved if either of those
deadlines is missed, reinforced its desire for quick resolution
of siting applications by setting a somewhat harsh penalty for
violation of the deadlines. Given such a clear expression that
time is of the essence, the Board cannot find that the county
board impliedly has the power to extend the 180—day deadline by
determining when an application is deemed filed. To do so would
violate the language of the statute.
The appellate courts have strictly construed the
requirements of Section 39.2. For example, the courts have
strictly construed the notice requirements of Section 39.2.
Browning—Ferris Industries of Illinois v. Pollution Control
Board, No. 5—86—0292 (5th Dist., November 18, 1987); Concerned
Boone Citizens v. M.I.G. Investments, Inc., 144 Ill. App. 3d 334,
494 N.E. 2d 180 (2d Dist. 1986); Kane County Defenders, Inc. v.
Pollution Control Board, 139 Ill. App. 3d 588, 487 N.E. 2d 743
(2d Dist. 1985). Likewise, the courts have held that the power
to assess filing or inspection fees cannot be implied into
Section 39.2. Concerned Boone Citizens, supra; County of Lake v.
Pollution Control Board, 120 Ill. App. 3d 89, 457 N.E. 2d 1309
(2d Dist. 1983). The Board sees little difference between an
implied power to assess fees and an implied power to effectively
extend the 180—day deadline by determining what constitutes a
“request” for siting approval. Given the courts’ strict
interpretations of Section 39.2, the Board must reject the
county’s argument.
85—205
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The Board is aware that the finding that a locality may not
unilaterally extend the decision deadline could work hardship on
the locality in cases where an application is deficient and the
applicant refuses to waive the 180—day deadline. However, the
locality could solve such a potential problem by holding the
mandatory public hearing and following the other applicable
procedures of Section 39.2, and subsequently denying site
approval on grounds of insufficient information. The Board also
notes that Senate Bill 749, which i~to become effective July 1,
1988, deals with this problem by amending Section 39.2(e). The
amendment provides:
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 more 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. (emphasis added.)
Even this amendment does not give the county the power to require
an amended application or a waiver. Only the applicant can amend
the application, and thus extend the decision deadline.
The Board also notes that the fact that Section 39.2(e) has
been amended is a strong argument that the legislature recognized
a problem in the statute. After the appellate court held that a
county did not have the implied power to charge a filing fee,
Concerned Boone Citizens, supra, the legislature added Section
39.2(k), which specifically allows a locality to charge a
reasonable fee to cover the reasonable and necessary costs
incurred in the siting review process. Ill. Rev. Stat. 1986
Supp., ch. 1lll/~, par. 1039.2(k). Likewise, it is reasonable to
believe that the amendment to Section 39.2(e), which provides for
an automatic 90—day extension of the decision deadline upon the
filing of an amended application, is a response to a perceived
problem: that the locality has no power to extend the 180—day
decision deadline.
Section 39.2(b) provides further support for the Board’s
decision. That subsection requires an applicant to give notice
of its intent to file a request for site approval no later than
14 days prior to making the request. The notice must include,
inter alia, “the date when the request for site approval will be
submitted to the county board.” Ill. Rev. Stat. 1985, ch. 1111/2,
par. 1039.2(b). This provision alerts the public to when the
application will be available for inspection. The statute also
requires that public hearing on the request is to be held “no
sooner than 90 days but no later than 120 days from receipt of
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the request for site approval”. Ill. Rev. Stat. 1985, ch. 1111/2,
par. 1039.2(d). This allows the public to review the application
prior to the public hearings so that any objections may be
presented at hearing. By determining when an application is
“filed”, the hearing committee of the county board violated these
two provisions. It is apparent that the hearing committee
rendered petitioner’s notice ineffective (for purposes of
informing the public) by altering the date on which the 90—120
day period for public inspection began to run. Such a result is
contrary to the purpose of the statute. Additionally, the
application was apparently not re—noticed when petitioner filed
its supplementary material and the application was subsequently
accepted for filing. Thus the public was not notified of the new
material contained in the applicatioh. Again, the hearing
committee’s actions infringed upon the provisions for public
inspection. In sum, it is important to recognize that the time
periods for notice, hearing, and decision start with the filing
of the application. The Board believes that under Section 39.2,
it is the action of an applicant in submitting a request that
controls when an application is filed, not the action of a county
committee or county board.
Furthermore, the hearing committee’s initial rejection of
the application cannot be considered “final action” within the
meaning of Section 39.2(e). The application was reviewed and
rejected only by the hearing committee, not by the full county
board. Section 39.2(e) specifically requires final action by
“the county board or governing body of the municipality”. Ill.
Rev. Stat. 1985, ch. 1111/2, par. 1039.2(e). There was no public
hearing held before the rejection, as is mandated by Section
39.2(d). Since the February 19 rejection of the application was
not final action on that application, the supplementary material
filed by petitioner cannot be considered a new application. It
should be noted that the letter to petitioner informing it of the
hearing committee’s rejection specifically states that the
application was “deficient” and that “aifter you submit
supplementary material required by the resolution, it will be
presented to the county staff for review and then forwarded to
the committee
. .
•“.
Doc. #12. The Board feels that this
letter does not indicate that the rejection was considered final
action even by the hearing committee. It must be emphasized that
only the county board is empowered to take final action upon a
siting application. The courts have given strict interpretation
to the provisions of Section 39.2. Thus, the phrase “the county
board or governing body of the municipality” must be read to mean
just that
——
not a committee.
Additionally, the Act cannot be read to have allowed
petitioner to appeal from the hearing commmittee’s rejection of
the application. Section 39.2(g) states, inter alia, that the
appeal procedures provided for in the Act for new regional
pollution control facilities are to be the exclusive appeal
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procedures for such facilities. Section 40.1 provides that an
applicant may petition for a hearing before this Board to contest
a negative decision of the county board or governing body of the
municipality. There is no provision in the Act which allows for
an appeal of a less than final action of a county board
committee. Thus, petitioner could not have appealed from the
hearing committee’s rejection of the application.
Although the Board bases its decision on the county’s
inability to extend the 180—day deadline, the instant county
resolution seems to require information beyond the six criteria
to be considered under Section 39.2 as it existed at the relevant
time. For example, the resolution requires extensive information
on the background of the applicant, including balance sheets,
profit and loss statements, any lawsuits or administrative
proceedings in the past five years, and the employment histories
of all partners, officers, directors, and shareholders. The
Board notes that Senate Bill 749 amends Section 39.2(a) to
provide that a locality may consider the previous operating
experience and past record of convictions or admissions of
violations of the applicant (and any subsidiary or parent
corporation) when considering criteria 2 and 5. However, that
amendment is not effective until July 1, 1988, and does not
provide for consideration of the applicant’s balance sheets,
profit and loss statements, or employment history. Again, the
fact that Section 39.2(a) has been amended in such a manner can
be assumed to be a legislative response to a problem: that a
locality may not consider an applicant’s past history.
It is true, as the county states, that the statute does not
define the term “request”. The Board believes, however, that
given the strict interpretation of Section 39.2, the omission of
such a definition does not give a locality the implied power to
impose whatever requirements it desires. Senate Bill 749,
effective July 1, 1988, provides some guidance in the matter by
amending Section 39.2(c) to state that a request shall include
the substance of the applicant’s proposal. The amendment retains
the existing requirement that the request include any documents
submitted to the Agency pertaining to the proposed facility. A
provision that the request include the “substance” of the
proposal does not seem to include the specificity of detail that
the instant county resolution requires.
In sum, the Board finds that the county was not authorized
to extend the 180—day deadline by determining whether the
application has sufficient information under the terms of a
county resolution. Under the terms of Section 39.2 as it existed
at the time of these proceedings, only the applicant may extend
the time for final action. As is made clear by petitioner’s
specific reservation of objections in the supplemental filing,
petitioner did not waive the deadline. Therefore, the date for
final action by the county board was July 23. Since final action
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was not taken until August 18, the site is approved by operation
of law.
Although it may seem that this result is harsh, the Board
points out that the proposed landfill must still pass the
Illinois Environmental Protection Agency (Agency) permitting
process. Site approval is only the first of a three step
process. The legislature has provided that after site approval
is obtained, the applicant must apply to the Agency for a
permit. Ill. Rev. Stat. 1985, ch. 1111/2, par. 1039. The Agency’s
technical staff then conducts a complete and thorough review of
the application and considers the environmental impact of the
proposed facility before deciding whether to issue a development
permit. If a development permit is granted, the applicant must
then obtain an operating permit after development of the site is
completed. In sum, the fact that site approval is granted does
not mean that the proposed landfill will become a reality. The
Board also notes that the county’s own technical advisor found
that geologically and hydrogeologically, the proposed site is
located and proposed to be operated so that the public health,
safety, and welfare will be protected. Doc. #619, p. 2.
The Board wishes to note that this case also raised the
issue of whether audio tapes are equivalent to written
transcripts for purposes of Ash v. Iroquois County Board, PCB 87—
29, July 16, 1987. In Ash, the Board held that transcripts of
the public hearings must be reasonably available to county board
members who do not attend all of the hearings. In this case, the
county did have a court reporter present at all hearings, but did
not have the reporter transcribe her notes until after petitioner
had filed its appeal with the Board. Instead of transcripts
being available, the county board members had access to audio
tapes of the hearings. These tapes were apparently made by a
member of the county staff.
While the Board does not explicitly decide this issue, it
must point out that serious questions are raised by this
practice. For instance, it is not known whether the participants
are clearly and consistently identified on the tape so that a
listener might know who was speaking. It is also not known if
witnesses were asked to stop speaking while a tape was changed,
or if witnesses can be clearly heard on the tape. In other
words, it is difficult to determine whether the tape recordings
are as complete and accurate as written transcripts. See City of
Columbia v. County of St. Clair, PCB 85—177, 85—220, 85—223
(Cons.), April 3, 1986. Additionally, since the tapes available
to the county board members and the written transcripts filed
with the Board were not from the same source, there is a question
of whether the county created a record sufficient to form the
basis of appeal, as required by Section 39.2(d).
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This practice of using tapes also raises the question of
whether a record of the proceedings was “reasonably available” to
the county board members. If there was just one copy made of the
sixteen days of tapes, it would be almost impossible for all
members to have access to such a large number of tapes. There is
also the possibility that the tapes could be damaged, destroyed,
or lost. If this were to happen close to the decision deadline,
there would be no way for the county board members to make an
informed decision. Such a situation would be analogous to the
events in Ash, where this Board held that transcripts of the
public hearings were not reasonably available where photocopied
sets of the transcripts were not available until immediately
before the county board meeting at which the application was
voted upon. It is also likely that the difficulty of locating
particular testimony on a specific topic would render the
information unavailable for all practical purposes. All of these
problems could be solved if certified copies of a written
transcript were made available to the county board members.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The decision of the McLean County Board denying site
location suitability approval is hereby vacated as being
untimely. Site approval is granted by operation of law.
IT IS SO ORDERED.
Messrs. 3. Dumelle, R. Flemal and B. Forcade dissented and
J. Marlin concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
c’?/-~2-~-
day of ______________________, 1988, by a
vote of ~4L—~
Illino Pollution Control Board
85—210
