ILLINOIS POLLUTION CONTROL BOARD
December 17, 1987
WASTE MANAGEMENT OF ILLINOIS
)
INC., a Delaware Corporation,
Petitioner,
V.
)
PCB B7—75
LAKE COUNTY
BOARD,
)
Respondent.
MR. DONALD J. MORAN, PEDERSEN
& HOUPT, APPEARED
ON BEHALF OF
PETITIONER,
MESSRS. LARRY N. CLARK AND MICHAEL J. PHILLIPS, ASSISTANT STATE’S
ATTORNEYS OF LAKE COUNTY, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board on a Siting Application
Appeal filed by Petitioner on June 1, 1987. Specifically,
Petitioner, Waste Managment of Illinois, Inc. (“WMII”), appeals
the May 5, 1987, decision of the County Board of the County of
Lake (“LCB”) denying local siting approval to Petitioner’s
proposed incinerator and landfill in Lake County, Illinois.
WMII contends that the procedures utilized by the LCB were
fundamentally unfair because overly restrictive and arbitrary
rules regarding the admissibility of testimony, documents, and
other relevant evidence were applied, and because individual LCB
Members had prejudged the Application, the LCB proceedings were
tainted by ex parte contacts, and the full LCB did not have
adequate opportunity to consider the Application before voting.
WMII further contends that the LCB hearings were fundamentally
unfair because the decision maker, Lake County, itself appeared
as a party opposing the Application. Finally, WMII contends that
the decision of the LCB that Petitioner had not met its burden on
four of the statutorily—defined criteria is against the manifest
weight of the evidence and is based on factors which the LCB had
no authority to consider.
Hearing before this Board was held on October 1 and 2, 1987,
in Waukegan, Illinois. Pursuant to schedule established by the
Hearing Officer, WMII filed a brief (“WMII Brief”) on October 28,
1987, the LCB filed a brief (“LCB Brief”) on November 12, 1987,
and WMII filed a reply brief (“Reply Brief”) on November 18,
1987.
84—607
—2—
Based on the record before it, the Board finds that the
hearing below was conducted in a fundamentally fair manner. The
Board additionally finds that the decision of the LCB to deny
WMII’s Application based on failure of WMII to meet its burden of
proof on the statutorily—defined criteria is not against the
manifest weight of the evidence. The Board will accordingly
affirm the decision of the LCB.
MOTIONS
On November 12, 1987, Mr. William Alter filed a motion with
the Board for leave to file an amicus brief in support of
Respondent Lake County. In support of his motion, Alter states
that he participated in the hearing on the Application before the
LCB, and that he asserts two arguments which will not be asserted
by any other party to the proceedings: that the LCB lacked
jurisdiction to conduct hearings on the Application, and that
certain LCB members should have recused themselves because of a
personal financial interest in the granting of the Application.
On November 18, 1987, WMII filed a response to that motion,
claiming that Alter’s brief is an attempt to cross—appeal and
that cross appeals in landfill siting reviews are not authorized
by the Environmental Protection Act (“Act”); Ill. Rev. Stat. 1985
ch. 111 1/2) WMII Reply to Alter Motion at 2; citing, McHenry
County Landfill, Inc. v. Pollution Control Board, 154 Ill.App.3d
89, 506 N.E.2d 372,376 (2d Dist. 1987).
On December 3, 1987, A.R.F. Landfill, Inc. (“A.R.F”) also
filed a motion for leave to file amicus brief and amicus brief in
support of Lake County’s denial of WMII’s siting Application. In
support of its motion A.R.F. stated that it participated in the
hearing of the Application, it owns property located almost
adjacent to the proposed site, and that A.R.F.’s brief addresses
problems with the site geology and hydrogeology and WMII’s
monitoring system.
The Board believes Mr. Alter properly filed his brief as
amicus curiae, and does not construe the filing as a cross
appeal. It is the general practice of the courts that the
granting or denial of a motion for leave to file a brief as
amicus curiae lies wholly within the discretion of the court.
Generally, the motion will be granted where the movant
establishes the necessity or advisability of aiding the court in
consideration of the case in which it is presented. The Board
sees no reason to differ in this approach. The Board believes
that Alter has satisfied that standard. Therefore Alter’s motion
is granted. The Board also grants A.R.F’s motion as A.R.F. has
satisfied the standard. The Board notes that the granting of the
above motions is consistent with the Board’s Orders of July 16,
1987, and October 15, 1987. Acceptance of the briefs as amicus
curiae in no way bestows any of the rights and privileges of
party status upon Mr. Alter or A.R.F.
84—608
—3—
The second motion before the Board was filed by the LCB on
November 12, 1987, and is a motion to strike Section I of WMII’s
brief filed October 28, 1987. The LCB claims that Section I,
entitled “Introduction” contains material that is “highly
prejudicial” and “irrelevant”; and that it also contains alleged
facts which do not appear in the record of proceedings before the
LCB and PCB. WMII responded on November 18, 1987, that the LCB
motion did not identify the statements or facts which it finds
objectionable. WMII also stated that Section I contains legal
argument which cannot be stricken without violation of
fundamental fairness.
The Board denies the LCB’s motion to strike Section I of
WMII’s brief and notes that Section I contains history of the
SB172 process, as well as case precedent, legal argument and
Petitioner’s perceptions of inherent difficulties of the present
landfill siting process. In regard to the LCB’s allegations of
material which is not in the record, the Board is able to
determine and exclude from its consideration material cited in
briefs which is outside the record and is not of the type which
it can take judicial notice. The Board therefore finds it
unnecessary to strike Section I of WMII’s brief.
PROCEDURAL HISTORY
On November 7, 1986, WMII presented an Application
(“Application”) to the LCB for local siting approval for an
incinerator and landfill. The incinerator is proposed to be a
waste to energy mass burn incinerator capable of accomodating
1000 tons/day of waste. The landfill is proposed to accomodate
500 tons/day of additional refuse plus the noncombustible waste
from the incinerator.
The site of the proposed facility is on approximately 160
acres located on the east side of Illinois Route 83 (Ivanhoe
Road), bounded on the south by Peterson Road and approximately
one mile south of Route 137, in unincorporated Fremont Township,
Lake County, Illinois. The site is located immediately to the
south of an existing solid waste, non—hazardous waste landfill
owned and operated by P~.R.F. Landfill, Inc.
The LCB reached its decision after 33 days of hearing held
February 5 through March 30, 1987. In addition to WMII as
Petitioner, various other parties appeared and participated in
the LCB hearing. These included Lake County Joint Action Solid
Waste Planning Agency (“SWPA”), Libertyville Township,
C.L.E.A.R., the Casey—Almond Group, William Alter, A.R.F., Lake
County Defenders, and Citizens for a Better Environment
84—609
—4—
(hereinafter collectively as “Objectors”1). At the LCB hearing
Petitioner presented witnesses, testimony, and evidence in favor
of the Application. Likewise, Objectors and concerned citizens
were afforded similar opportunity to present evidence and make
public comment. A total of forty—five witnesses appeared and
forty—six members of the public presented oral public comment.
The LCB hearing generated in excess of 7,300 pages of transcript
plus pleadings, motions, argument, 131 exhibits, and 77 written
public comments. Hearing before this Board generated an
additional 474 pages of transcript plus exhibits and briefs.
The LCB hearing was conducted by a seven—member committee of
the full LCB. This committee prepared a resolution
(“Resolution”) denying siting approval. The Resolution was
subsequently adopted on May 5, 1987 by the full LCB on a vote of
21—0 with two abstentions. Among other matters, the Resolution
found that Petitioner had met procedural requirements for the LCB
to hear the matter, that the LCB had jurisdiction to hear the
matter, and that the proceedings before the LCB were conducted in
a fundamentally fair manner. On the issue of merits of the
Application, the LCB found that WMII had satisfied two of the
statutory criteria, nos. 4 and 5, but had failed to satisfy the
remaining four criteria, nos. 1, 2, 3, and 6. The request for
site location approval was accordingly denied.
REGULATORY FRAMEWORK
Requirements for the siting of new regional pollution
control facilities are specified in the Act. Section 39(c) of
the Act provides that “no permit for the development or
construction of a new regional pollution control facility may be
granted by the Environmental Protection Agency unless the
applicant submits proof to the Agency that the location of said
facility has been approved by the County Board of the county if
in an unincorporated area ~ in accordance with Section 39.~
ofthis Act”. At the time this proceeding was before the LCB
,
Section 39.2 provided in pertinent part:
1 Use of the term “Objectors” to identify those groups and/or
individuals who cross—examined Petitioner’s witnesses, and/or
offered their own witnesses, and/or presented their own exhibits
is used herein soley as a convenient collective reference in
accord with similar usage by both Petitioner (e.g., Appeal at 3)
and Respondent (e.g., Resolution at 8). Its use is not intended
to imply a determination that any one or any combination of the
groups and/or individuals constitutes objectors in any legal
~ontext.
The Board notes that amendments concerning Ill.~Rev. Stat.
1985 ch. 111 1/2 par. 1039.2 were recently passed under SB—749,
to be effective July 1, 1988. The amendments do not alter the
six criteria applicable to the proposed WMII facility.
84—610
—5—
(a) The county board
***
shall approve the
site location suitability for such new
regional pollution control facility only
in accordance with the following
criteria:
1. The facility is necessary to accommodate
the waste needs the area it is intended
to serve;
2. the facility is so designed, located and
proposed to be operated that the public
health, safety and welfare will be
protected;
3. the facility is located so as to minimize
incompatibility with the character of the
surrounding area and minimize the effect
on the value of the surrounding property;
4. the facility is located outside the
boundary of the 100 year flood plain as
determined by the Illinois Department of
Transportation, or the site is flood
proofed to meet the standards and
requirements of the Illinois Department
of Transportation and is approved by that
Department;
5. the plan of operations for the facility
is designed to minimize the danger to the
surrounding area from fire, spills or
other operational accidents; and
6. the traffic patterns to or from the
facility are so designed as to minimize
the impact on existing traffic flows.
Section 40.1 of the Act charges this Board with reviewing
the LCB’s decision. Specifically, this Board must determine
whether the LCB’s decision was contrary to the manifest weight of
the evidence. E&E Hauling, Inc. v. Illinois Pollution Control
Board, 116 Ill.7~pp.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. IPCB, 122 Ill.App.3d 639,
461 N.E.2d 542 (1984). The standard of manifest weight of the
evidence is:
A verdict is
...
against the manifest weight
of the evidence where it is palpably
erroneous, wholly unwarranted, clearly the
result of passion or prejudice, or appears to
84—611
—6—
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 con-
clusions from conflicting testimony or because
a reviewing court IPCB 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 LCB could have reasonably reached its conclusion,
the LCB’s decision must be affirmed. That a different conclusion
might also be reasonable is insufficient; the opposite conclusion
must be evident (see Willbrook Motel v. IPCB, 135 Ill.App.3d 343,
481 N.E.2d 1032 1985)).
Additionally, this Board must evaluate whether the LCB’s
procedures used in reaching its decision were fundamentally fair,
pursuant to Section 40.1 of the Act (E&E Hauling, supra). Since
the issue of fundamental fairness is a threshold matter, the
Board will consider this matter first.
FUNDAMENTAL FAIRNESS
Ill. Rev. Stat. 1986 ch No. 111 1/2 par. 1040.1 requires
that this Board review the proceedings before the LCB to ensure
fundamental fairness. In E&E Hauling
,
the first case construing
Section 40.1, the Appellate Court for the Second District
interpreted statutory “fundamental fairness” as requiring
applicationS of standards of adjudicative due process (116
I11.App.3d 586). A decisionmaker may be disqualified for bias or
prejudice if “a distinterested observer might conclude that he,
or it, had in some measure adjudged the facts as well as the law
of the case in advance of hearing it” (Id., 451 N.E.2d at 565).
A decision must be reversed, or vacated and remanded, where “as a
result of improper ex parte communications, the agency’s
decisiorimaking process was irrevocably tainted so as to make the
ultimate judgment of the agency unfair, either to an innocent
party or to the public interest that the agency was obliged to
The Board notes that, while the Illinois Supreme Court reversed
the Appellate Court’s conclusions in that case about the
existence of conflict of interest and bias/pre—judgment which
would disqualify the entire County Board as an institution from
making a decision, the Court did not repudiate the adjudicative
due process standard applied by the Appellate Court.
84—612
—7—
protect” (Id., 451 N.E.2d at 571). Finally, adjudicatory due
process requires that decisiorimakers properly “hear” the case and
that those who do not attend hearings in a given case base their
determinations on the evidence contained in the transcribed
record of such hearings (Id., 451 N.E.2d at 569).
Specifically, Petitioner argues that it was not afforded due
process below for the following reasons:
1. The Lake County Ordinance as applied and
on its face failed to afford petitioner
procedural due process.
2. The LCB acted as both objector and judge
in the proceedings.
3. Eight members of the LCB had prejudged
the Application.
4. The proceedings were tainted by ex parte
contacts between LCB members and the
public.
5. The LCB did not have an adequate
opportunity to consider Petitioner’s
Application before voting.
The Board will address each of these allegations in turn.
Lake County Ordinance
Petitioner asserts that the LCB has adopted an ordinance
which establishes a procedure for new regional pollution control
facility site approval requests in unincorporated areas of Lake
County, Illinois, that is in derogation of Section 39.2(g) of the
Act (WMII Brief at 88—9). That section of the Act states:
The siting approval, procedure, 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 such
facilities. Local zoning or other local land
use requirements shall not be applicable to
such siting decisions.
No state statute specifically prohibits a county board from
enacting an ordinance regulating the conduct of a site location
approval proceeding. Therefore, it is necessary to determine
whether the enacting of the ordinance falls within the LCB’s
implied powers. The Fourth District Appellate Court has stated
the standards for determining a local government’s implied powers
as follows:
84—613
—8—
It is a well established rule that the powers
of the multifarious units of local government
in our State, including counties, are not to
be enlarged by liberally construing the
statutory grant, but, quite to the contrary,
are to be strictly construed against the
governmental entity.
(Arms v. City of
Chicago, 314 Ill. 316, 145 N.E. 407 (1924). A
county is a mere creature of the State and can
exercise only the powers expressly delegated
by the legislature or those that arise by
necessary implication from expressly granted
powers. (Heidenreich v. Ronske, 26 Ill.2d
360, 187 N.E.2d 261 (1962.) This necessarily
implied power has been interpreted to mean
that which is essential to the accomplishment
of the statute’s declared object and purpose——
not simply convenient, but indispensable.
(Merrill v. City of Wheaton, 379 Ill. 504, 41
N.E.2d 508 (1942). However, the implied power
need not be absolutely indispensable, and it
is sufficient if it is reasonably necessary to
effectuate a power expressly granted. (Kiever
Shampay Karpet Kleaners v. City of Chicago,
323 Ill. 368, 154 N.E. 131 (1926); Houston v.
Village of Maywood, 11 I1l.App.2d 433, 138
N.E.2d 37 (1957).)
Connelly v. County of Clark, 16 Ill.App.3d
947, 949 (1974).
The standard has also been reiterated by the Second District
in McDonald v. County Board of Kendall County, 146 Ill.App.3d
1051, 100 Ill.Dec. 531, 497 N.E.2d 509 (2nd Dist. 1986), appeal
denied 113 Ill.2d 576, 106 Ill.Dec. 48, 505 N.E.2d 453 (1986).
when it stated that “County boards can exercise only such powers
as are expressly stated by law or derived by necessary
implication therefrom or are required to carry into effect the
object and purpose of their creation” (citing Heidenreich and
Connelly, supra).
The LCB believes that it is thus impliedly authorized to
enact the Lake County Ordinance in order to fulfill its express
duty to develop a sufficient record for appeal (LCB Brief at 19—
20); the Board agrees. The Board further notes that the language
of Section 39.2(g), in making the procedures of the Act the
exclusive procedures for siting of landfills, precludes the
applicability of local zoning and other local land use
requirements to this process. However, the Act makes no
reference to a county’s own “procedural rules”, enacted in the
form of an ordinance in order to implement the requirements of
the Act. Procedures developed in order to conduct hearings and
84—614
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to ensure fundamental fairness are reasonably necessary to
effectuate the powers expressly granted by the legislature.
This view is further supported by the language of Section
40.1(a) which states in part that “the Board shall include in its
consideration
...
the fundamental fairness of the procedures used
by the county board or the governing body of the municipality in
reaching its decision” (emphasis added). If the legislature had
intended that counties not set up procedures in order to abide by
the requirements of the Act, it would not have required this
Board to review the fundamental fairness of those procedures. It
naturally follows that counties in setting up procedures would
reduce those procedures to writing either in the form of an
ordinance or resolution.
Petitioner next asserts that the procedures contained in the
Lake County ordinance are unfair because they do not allow the
applicant to amend the Application after filing to include
additional materials or to subsequently submit or introduce
materials not included in the Application (WMII Brief at 89).
Though an applicant may not amend its application, the ordinance
allows that an applicant may withdraw the application at least 14
days before the first scheduled hearing and refile its request
for site approval, placing into operation all the requirements
which pertain to a new request for site approval. Lake County,
Ill., Ordinance Establishing a Procedure for New Regional
Pollution Control Facility Site Approval Requests (Sept. 9,
1986). Petitioner further asserts that the procedures are unfair
because various County departments and objectors are allowed to
file written materials up to ten days prior to hearing, and that
Petitioner is not allowed to comment on such material, except
through oral testimony. The LCB replies that in addition to
offering sworn testimony in response to documents submitted by
County departments and objectors, the applicant may extend the
180 day time period for the LCB to render a final decision on the
application, if the applicant needs additional time to procure
sworn testimony in rebuttal of the documents (LCB Brief at 20).
The Board has faced a similar matter in McHenry County
Landfill, Inc. v. County Board of McHenry County et a?., PCB 85—
56, PCB 85—61 through 85—66 (consolidated), 65 PCB 487, September
20, 1985. There the Board considered amendment of a site—
suitability application thusly:
The function of notice and the required time
period between notice and hearing is first to
inform the affected public that a landfill
site suitability approval process has been
initiated and, second, to allow time for the
public to review the application to determine
whether, or in what manner, further
participation is warranted. The Hearing
Officer concluded •that the evidence attempted
84—615
—10—
to be presented “in a defacto way or expres-
sly” constituted an amendment of the applica-
tion. ~
The Board does not disagree with
that determination. If such an amendment were
allowed during the course of the proceeding, a
member of the public who may have decided not
to participate because the application seemed
acceptable would not have had the opportunity
to review the amended application. Further,
even if he participated and did become aware
of the amendment, he might not have the
necessary time to adequately respond to the
changes. The same may be true of the County
or any other participants. This could be
cured, however, by allowing such evidence to
be presented at a later hearing contingent
upon the applicant serving sufficient notice
upon those required to be notified of the
original application and hearing date and
executing a waiver for the period necessary to
schedule and hold the additional hearing.
Id.
,
65 PCB 490—1
The Board finds that those circumstances in McHenry County
Landfill which argued for a prohibition against amendments of a
petition without refiling are indistinguishable from those of the
instant matter. Moreover, the Board notes that because the
procedures contained in the LCB ordinance allowed Petitioner the
opportunity to amend the Application and refile, and to rebut
documents filed by County departments and objectors through the
use of sworn testimony with the ability to extend the 180 day
decision deadline, the Petitioner has failed to show that the
procedures of the LCB were fundamentally unfair on this count.
Petitioner further asserts that the County Ordinance was
applied against Petitioner in violation of due process.
Specifically, Petitioner asserts that the Hearing Officer refused
to admit into evidence two of Petitioner’s site specific studies,
while allowing those of Objectors and the LCB, and that the
Hearing Officer acted arbitrarily in allowing and disallowing
certain other evidence. The two site specific studies which
Petitioner contends were arbitrarily excluded are an air
dispersion modeling study prepared by WMII witness George C.
Stotler and analyses of real estate trends prepared by WMII
witness William McCann (WMII Brief at 94—5). Petitioner admits
that both site specific studies were completed subsequent
84—616
—11—
to filing of the Application (Id.; R.4 2/24 at 96—7; 3/3 at 116;
3/12 at 61).
The Board finds that the Hearing Officer’s ruling to exclude
the two WMII site specific studies was proper. The record
clearly indicates that the Hearing Officer gave weight to the
surprise upon the Objectors which late introduction of this
material would have occasioned (See R. 2/24 at 107; 3/3 at 123),
and in this aspect his ruling was correct with respect to both
the Lake County Siting Ordinance and this Board’s holding in
McHenry County Landfill.
Moreover, the Board notes the following section contained
within the Application:
VIII: EXHIBITS OF APPLICANT
PETITIONER SHALL SUBMIT all studies, maps reports, permits or
exhibits which the petitioner desires County Board to
consider at the public hearing.
This Application document contains all
studies, maps, reports, permits or exhibits
which WMII desires the County Board to
consider at the public hearing. Application,
Lake County Application Form, p. 16—7
(underlining as in original)
WMII thereby submitted at the very onset of its hearing
before the LCB that it desired the LCB to consider no studies,
reports, or exhibits other than those timely submitted as part of
the Application. In this light, it would have been fully proper
for the Hearing Officer to rule that WMII had waived any rights
which it might have otherwise held for late submission of new
studies or exhibits.
As to the matter of the general admission of evidence, the
Board’s review of the proceedings below indicate that the Hearing
Officer acted in a generally even—handed manner in allowing and
disallowing evidence. The Illinois Appellate Court in its review
of the procedure of a county board hearing committee stated that
~ Transcripts of the hearing held before the LCB are referenced
herein by the designation “R.”. Numbering of pages in these
transcripts was restarted with each day of hearing. Moreover, on
some occasions renumbering was started after recesses within a
single day of hearing. To accommodate this situation,
transcripts of the hearing before the LCB are referred to herein
by date as well as page number, and include reference to the
session in question where there is more than one numbered
transcript per day. Thus, for example, “R. 2/21 P.M. at 119”
cites to page 119 of the February 21 afternoon hearing.
84—617
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examples of fundamental unfairness include a hearing where the
petitioner is prevented from cross—examining witnesses or from
presenting its own evidence. Waste Management, supra, citing E&E
Hauling, supra. The court went on to state:
The 98 hours and 2,500 pages of hearing
testimony demonstrate petitioner was afforded
ample opportunity to present its case. The
Hearing Committee collected and reviewed the
evidence and made its recommendations; in
other words, performed its adjudicatory
function. Waste Management, supra, at 1081.
The Board believes that the rationale for the decision is
equally applicable here. The instant case includes 33 days and
over 7,300 pages of hearing testimony, which implies that this
Petitioner was also afforded ample opportunity to present its
case. The LCB hearing committee collected and reviewed its
evidence and made its recommendations to the full LCB which body
voted on the Application. The Board finds that the LCB performed
its adjudicatory function and Petitioner fails to prove that the
decision—making process was fundamentally unfair.
Dual Role Issue
Petitioner claims that the hearing before the LCB was
fundamentally unfair because the County acted as both objector
and judge in the proceedings. Although Petitioner’s brief is not
clear on this point, it appears Petitioner is claiming that the
LCB, through the Lake County Department of Planning, Zoning and
Environmental Quality (“PZ&EQ”) and SWPA, appeared as a party to
the hearing on the Application, that the LCB provided legal
assistance to PZ&EQ and SWPA through the Lake County State’s
Attorneys Office, and that the LCB assu~ed its quasi—judicial
role in ruling on Petitioner’s Application
In support of its position, Petitioner cites a statement of
the Illinois Appellate Court in E&E Hauling, supra at 596, in
which the court indicated that “it is difficult to conclude that
a procedure under which the hearing body consists of the same
people who also comprise the body applying for the permit can be
fundamentally fair”. In that case, the DuPage County Board
assumed the investigator’s role when the county applied for an
~ Apparently in further support of its position that the hearing
was fundamentally unfair, Petitioner mentions the fact that
Bernard Wysocki, the attorney for the Hearing Committee, replaced
Thomas Morris as hearing officer at the hearings beginning March
26, 1987. The Board notes that a stipulation was signed by
attorneys for Petitioner, the principal Objectors, and the
attorneys for the County, which stated that all agreed and would
not object to the hearing officer substitution (Hearing Ex. 5).
84—618
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Illinois Environmental Agency permit for a landfill. At a later
date the DuPage County Forest Preserve District and E&E Hauling,
Inc., submitted an application to the same county board for
expansion of the same landfill. The county board then assumed
the adjudicator’s role to decide the merits of the application.
The Appellate Court concluded that the county board suffered from
a disqualifying conflict of interest, but further found that
there being no other forum, the rule of necessity required the
the county board act as forum for the matter (Id. at 599—603).
The Illinois Supreme Court affirmed the Appellate Court in its
ultimate decision that the county board should hear the matter,
but disagreed that the county board was biased or disqualified,
stating that:
The village
...
claims that the hearing was
unfair because both the county and the
district had earlier approved the landfill by
ordinance. The village thus is claiming a
type of bias that has been called “prejudgment
of adjudicative facts.” (See K. Davis, 3
Administrative Law Treatise sec. 19:4 (2d ed.
1980).) But the ordinances were simply a
preliminary to the submission of the question
of a permit to the Agency. Subsequently, the
Act was amended and the board was charged with
the responsibility of deciding whether to
approve the landfill’s expansion. The board
was required to find that the six standards
for approval under the amended act were
satisfied. It cannot be said that the board
prejudged the adjudicative facts, i.e., the
six criteria. This conclusion is supported by
the line of decisions that there is no
inherent bias created when an administrative
body is charged with both investigatory and
adjudicatory functions. See, e.g., Withrow v.
Larkin 421 U.S. 35, 47—50, 43 L.Ed.2d 712,
723—25,
95 S.Ct. 1456, 1464—65 (1975); Scott
v. Department of Commerce and Community
Affairs,
84 Ill.2d 42, 54—56 (1981).
E&E Hauling 481 N.E.2d at 668.
The Board believes that the reasoning of the Supreme Court
is applicable to the matter at hand. PZ&EQ and SWPA were
performing investigatory functions regarding this Application,
and it is not unreasonable to expect that the Lake County State’s
Attorneys Office would provide counsel for those agencies, both
being county agencies. It is also worth noting that in E&E
Hauling, members of the county board were also members of the co—
applicant DuPage County Forest Preserve District. Here, the
members of the LCB are not members or employees of PZ&EQ or
SWPA. The Board accordingly finds that Petitioner failed to show
84—619
—14—
that the appearance of the county agencies or their
representation by Lake County Assistant State’s Attorneys
constitutes fundamental unfairness.
Prejudgment of Application/Bias
Petitioner
claims that the hearing before the LCB was
fundamentally unfair owing to the prejudice and bias of
individual Board Members. The thrust of Petitioner’s allegations
is that certain LCB Members were predisposed to denying the
Application. Petitioner asserts that such bias and prejudice
renders invalid the LCB decision, and requires that the matter be
remanded to the LCB for further consideration.
In support of this contention, Petitioner presented
newspaper articles which are contained in the record as Exhibit A
to Petitioner’s Motion to Disqualify. (The motion was before the
LCB.) The Board notes that the same or similar articles were
also presented in A.R.F. Landfill, Inc. v. Lake County, PCB 87—51
(October 1, 1987)G There the Board stated:
The proffered newspaper articles fall neatly
into two categories: first, quotations of
statements made by Board Members and secondly,
articles by newspaper reporters giving the
reporters’ impressions and interpretations of
certain statements made by individual Board
Members.
The second group will not be
considered. In addition to being more than
double hearsay the articles merely contain
newspaper reporters’ impressions of an event,
and are neither admissable nor credible
concerning the accuracy of those statements.
In reading the direct quotations of County
Board Members and transcripts of the Board
meeting it is important to note the type of
conduct which requires disqualification: The
test has been succinctly stated as whether a
disinterested observer might fairly conclude
that the decision maker had adjudged the facts
as well as the law of the case in advance of
hearing. Cinderella Career and Finishing
Schools, Inc. v. F.T.C., 138 U.S. App. D.C.
152, 425 F.2d 583, 591 D.C. Cir. 1970. E &
E Hauling, Inc. v. IPCB, 116 Ill.App.3d 586,
71 Ill.Dec. 587, 451 N.E.2d 555 at 565.
6A.R.F submitted an application for the siting of a landfill at a
location contiguous to the site of the proposed WMII facility.
The LCB denied that application, and on appeal this Board
affirmed the LCB’s decision.
84—620
—15—
Slip op. at 5
The Board believes that the above reasoning is equally
applicable to the assertions in the case at bar. It is also
important to note that in an analysis of bias or prejudgment
elected officials are presumed to be objective and to act without
bias. The Illinois Appellate Court discussed this issue in
Citizens for a Better Environment v. Illinois Pollution Control
Board, 152 Ill.App.3d 105, 504 N.E.2d 166 (1st Dist. 1987):
In addressing this issue, we note that it is
presumed that an administrative official is
objective and “capable of judging a particular
controversy fairly on the basis of its own
circumstances.” (United States v. Morgan
(1941), 313 U.S. 409, 421, 85 L. Ed. 1429,
1435, 61 S. Ct. 999, 1004). The mere fact
that the official has taken a public position
or expressed strong views on the issues
involved does not serve to overcome that
presumption.
(Hortonville Joint School
District No. 1 v. Hortonville Educational
Association (1976), 426 U.S. 482, 49 L. Ed. 2d
1, 96 S. Ct. 2308). Nor is it sufficient to
show that the official’s alleged predisposi-
tion resulted from his participation in
earlier proceedings on the matter of dis-
pute. (Federal Trade Commission v. Cement
Institute (1948), 333 U.S. 683, 92 L. Ed.
1010, 68 S. Ct. 793).
504 N.E.2d at 171.
The Board has also addressed the application of the above
standards in a landfill siting case:
Although the First District’s Statement in
Citizens for a Better Environment was made
during the judicial review of a rulemaking,
the Board believes that the statement still
has considerable value in this proceeding
which is a review of a quasi—judicial
decision. The cases cited in the above
passage concern decisions which were reviewed
on the basis of adjudicatory standards.
City of Rockford v. Winnebago County Board,
PCB 87—92, November 19, 1987, at 24.
The Board will next consider the allegations of bias
concerning the individual LCB members. In support of its
allegations concerning certain Board members, Petitioner cites
testimony regarding statements made by those Board members. The
84—62 1
—16—
Board notes that the majority of th~cited statements were made
in reference to the A.R.F. proposal’, and need not be
considered. The Board recognizes, however, that due to the
continuity of the resolution of the A.R.F. application and
Petitioner’s Application, there may be some instances where it is
difficult to determine which application the speaker intended to
address. Therefore, the Board will discuss those statements
where it may be less than clear which application is the subject
matter of the alleged statements.
Petitioner asserts that Mr. Gerald Beyer, a member of the
LCB hearing committee, prejudged the Petitioner’s Application.
In support of its assertion regarding Mr. Beyer, Petitioner
presented a letter prepared for distribution to the residents of
District 6 in Lake County. An unsigned copy of a letter
purported to be the one sent to the residents was admitted at the
PCB hearing as Petitioner’s Exhibit No. 6, and states in
pertinent part as follows:
The A.R.F. proposal was fortunately,
rejected by the Lake County Board...
The record of landfills at or near the
Freemont Township site is not a good one. For
years one nearby site was ordered closed by
the Environmental Protection Agency. Lake
County, now approaching a population of
500,000 people, should concentrate on alter-
natives to landfilling. Recycling and inten-
sive resource recovery is one part of the
refuse solution. We can all expect to have
separation of the components in our refuse as
a responsibility of each household. Sepa-
ration of materials to be recycled at the
source makes recycling much more economically
feasible.
The A.R.F. proposal was rejected because it
would have a severe and detrimental effect on
the quality of life in Lake County for years
into the future. We felt it was our responsi-
bility to oppose this proposal. We intend to
continue our opposition to this application
and will keep you informed on any new
developments.
The A.R.F. hearings before the LCB were concluded on
February
9, 1987, and the decision of the LCB on that matter was rendered
on March 24, 1987. Thus, the LCB’s consideration of the A.R.F.
proposal in part overlapped the LCB’s consideration of the
instant matter.
84—622
—17—
The Board believes that the letter on its face does not
appear to show any bias. Mr. Beyer testified that the letter he
signed had all references to Petitioner removed. He further
stated that the purpose of the letter was to communicate to the
cons~ituents that the A.R.F. application had been turned down
(Tr. at 161—2). Messrs. Anderson and Hansen, co—authors of the
letter, also testified that the letter was written pertaining to
the A.R.F. proposal (Tr. at 100—2, 376—378). The letter was
written pertaining to the A.R.F. proposal, therefore it does not
apply to the instant matter and need not be considered. However,
if it were to be considered, the Board believes that at most, it
indicates that the authors and/or signatories held certain views
related to waste disposal which do not overcome the presumption
that Mr. Beyer, in his role as public official, was capable of
judging the merits of the Application fairly on the basis of its
own circumstances (See, Hortonville Joint School District No.1,
supra).
Mr. Beyer testified that “it is very possible” that in
August, 1986, he stated that “There is already a landfill in that
area. It is a sore thumb. Those people have had enough of it”
The Board believes that this statement does not presume bias
against any particular future Iandfilling proposal. It does show
that Mr. Beyer was aware of the public sentiment among those
residing near the site of the proposed landfill, but does not
show that Mr. Beyer’s vote was influenced by that knowledge or
that he did not fairly consider the evidence presented. The
Second District faced this problem in Waste Management, supra:
While the board members were aware of public
opposition because of the statutorily—mandated
public hearings, petitioner has not
demonstrated that the board members decided on
its application as a result of the public
opposition and without consideration of the
evidence. The only factor cited by petitioner
is that more than half of the LCB members
faced reelection within two months of the date
of the decision. This fact, however, is not
referenced in the record, and more important,
is insufficient •to establish a biased
decisionmaking process. Where the statute
requires the LCB to conduct a public hearing,
a decision does not become unfair merely
because elected officials recognize public
sentiment. Petitioner here has failed to
sustain its burden of showing that the
procedures of the LCB or the decision making
process were fundamentally unfair.
8 Transcripts of the Hearing before this Board are cited as
. “
84—623
—18—
Id. at 1082.
The other statements cited by Petitioner alleging Mr.
Beyer’s bias were quotations contained in newspaper articles.
Mr. Beyer testified that these quotations were not made in the
manner that they were printed (Tr. at 174). The Board therefore
finds th~tthe accuracy of these statements was adequately
rebutted
Petitioner next alleges that Mr. Norm Geary was biased or
prejudged the Application, as indicated by certain statements he
made. Mr. Geary testified that he stated, “We already have a
landfill site which is a disgrace to the entire area. If this
incinerator and landfill are put in it will destroy central west
Lake County and will destroy Grayslake, certainly.” He testified
that at the time of his deposition of August 5, 1987, he thought
the statement was made in relation to the Petitioner’s
Application (Tr. at 342—344). However, Mr. Geary further
testified that the statement was made regarding the A.R.F.
application (Tr. at 345—346). The Board notes that Petitioner
did not present any evidence of the date that the statement was
made. Although the date alone would not be conclusive in the
determination as to whether the statement was made regarding
Petitioner’s Application, there is sufficient conflicting
testimony for this Board to conclude that Petitioner failed to
show by that statement that Mr. Geary was biased or prejudged the
Application. The other alleged statements are contained in
newspaper articles that were also presented in the A.R.F.
landfill siting appeal. The Board found Mr. Geary did not
adjudge the law and facts prior to hearing that matter (PCB 87—
51, October
1,
1987 at
5),
and now finds that
it
has no reason to
deviate from that determination,
even if it were to find the
statements applied to Petitioner’s
case.
Petitioner next alleges that LCB member Andrea Moore should
be disqualified for a statement she made shortly after the
Hearing Committee’s deliberations. The Hearing Committee’s
deliberations occurred after the hearing on the Application, and
thus cannot be an adjudication of the facts and law prior to
hearing. It is worth noting that there is no indication from the
statement that Ms. Moore had decided the issues prior to hearing.
Petitioner further asserts that Ms. Moore was biased as
indicated in her written responses to letters she received.
Petitioner cites portions of three letters, which were written
The Board’s Hearing Officer granted a motion to quash the
subpoena served on Kathy Rosemann, the author of the newspaper
articles containing Mr. Beyer’s statements. Ms. Rosemann claimed
the reporter’s privilege, allowing her not to disclose privileged
information. Petitioner asks the Board to reverse the Hearing
Officer (WMII Brief at 106). The Board declines to so do.
84—624
—19—
during the hearings on Petitioner’s Application and could be
applicable to both the A.R.F. and WMII proceedings. Two of these
letters, while acknowledging the efforts of the C.L.EA.R.
Organization and its founders, also note the efforts of the
County itself. As the postscript to the letter to Ms. Dorothy
Mosior, a co—founder of C.L.E.A.R., states:
P.S. I hope you have gained a better knowledge
of the complexity of these issues and the
thoroughness with which the County has
approached them. You and Chris are to be
commended for your efforts. (Pet. Exh. 8).
The last letter cited by Petitioner contained statements
that Ms. Moore would favor the Fo~8stPreserve purchasing a
portion of the Heartland property
,
“particularly the central
range area where there are many acres of wetlands” (Pet. Exh. 8).
The Board believes that the letters on their face do not support
a showing of disqualifying bias and merely assert facts without
any indication of a prejudgment of the facts or law in relation
to the Application.
Petitioner contends that Board members F.T. “Mike” Graham
and Carol Calabresa were biased against Petitioner.
Specifically, Petitioner referred to Ms. Calabresa’s testimony
that she was a “dedicated recycler” (Tr. at 72), and that she
made the statement:
I feel sorry for the CLEAR group. They have
to spend $100,000 in legal fees and the county
should be doing it for them. (Tr. at 70)
Petitioner also cited statements allegedly made by Mr. Graham
regarding his views on recycling and landfills.
The Board believes that the analyses contained in the
Citizens for a Better Environment, Hortonville, and Morgan cases
noted above are equally applicable to the statements of Ms.
Calabresa and Mr. Graham. Though they held views regarding waste
disposal and may have even made those views public, Petitioner
failed to show that either board member was incapable of judging
the Application of the basis of its own circumstances. Ms.
Calabresa further testified that she thought a proper review of
Petitioner’s Application should be completed prior to hearing,
and that at the time she made the statement regarding C.L.E.A.R.,
she was unaware that PZ&EQ was also conducting a review of the
Application (Tr. at 80—81).
10 The Heartland property is a 2,500 acre tract in central Lake
County which partially overlaps the WMII proposed site.
84—625
—20—
Petitioner further asserts that Mr. Graham was biased based
on the fact that at the time of hearings and the vote on the
Application, he was Libertyville Township Supervisor, and that
Libertyville Township was an Objector. Petitioner also alleged
that Mr. Graham advocated a donation of $50,000.00 to C.L.E.A.R.,
another Objector in the proceedings. The Board believes that the
allegation regarding the donation to C.L.E.A.R. has little basis
in fact. Petitioner cited a newspaper article which contained no
direct quotes of Mr. Graham, and it has been previously stated
that the Board will not consider such evidence since it is double
hearsay and cannot be given much, if any, weight. Respondent
argues that Petitioner failed to produce any evidence that Mr.
Graham participated in the decision of the Libertyville Town
Board to appear as a party to the hearings on Petitioner’s
Application, and therefore failed to meet its burden of proof
that Mr. Graham had a personal interest in the proceedings which
would constitute bias. The Board agrees.
Petitioner alleged that LCB member John P. Reindl was
biased, and in support of its allegation noted that Mr. Reindl
along with LCB members Anderson and Hansen appeared on the Lake
County Forum television program on February 12, 1987. Petitioner
then noted that Mr. Reindl stated in his deposition presented at
the PCB’s hearing that the people who appeared on the Lake County
Forum television program “were all sympathetic to CLEAR” (Pet.
Exh. 15 at 53—4). The Board finds that this statement was taken
out of context and its intent is thus misinterpreted. On pages
53 and 54 of the deposition, Mr. Reindl was questioned regarding
what the people who appeared on the show “generally” spoke of. A
pertinent question and answer reads as follows:
Q. Did anyone who appeared on the program
speak against the effort of the CLEAR group in
its opposition to the application?
A. No. They were all sympathetic to CLEAR.
Pet. Exh. 15 at 53—4 (emphasis added)
It is also easy to see how Mr. Reindl could have been referring
to other guests on the program, especially by his use of the word
“they” instead of “we”.
Petitioner asserts that Board member C. Richard Anderson was
predisposed to vote against Petitioner, and in support of its
allegations Petitioner refers to certain statements Mr. Anderson
made during the Lake County Forum television program. Mr.
Anderson testified that on the program he made statements
regarding the siting of landfills in Lake County. Upon furth~r
questioning, Mr. Anderson described the statements (Tr. at 110—
6). The Board believes that the statements made by Mr. Anderson
are of the same sort as those made by Ms. Calabresa and Mr.
Graham, and the same analysis applies here.
84—626
—21—
Other allegations pertaining to Messrs. Reindl and Anderson
involve the letter that was sent to the residents of Lake County
District 6 which was disposed of in the discussion involving Mr.
Gerald Beyer.
Petitioner alleges that E. Bruce Hansen prejudged the
Application as shown by a statement he made at the November 19,
1987 meeting at the Libertyville Township Hall that “the only
place Waste Management should burn is in hell”. This statement
was made slightly over three months prior to the start of the
hearings on Petitioner’s Application and clearly shows that Mr.
Hansen had made up his mind regarding, at the very least, the
incinerator portion of the proposal, prior to the hearing on the
matter. Mr. Hansen’s testimony that the statement “was made in
the broader context of remarks made that evening” is
unconvincing. He did not relate any other statements made during
that evening, therefore he offered nothing that would mitigate
against the weight he placed on the statement (Tr. at 403). The
statement itself shows that Mr. Hansen would not accept an
incinerator by the applicant at any place on this earth and
clearly shows he is biased against this Petitioner. As such, Mr.
Hansen is disqualified from hearing this case. The participants
and public have the right to an impartial, fair adjudication and
Mr. Hansen is simply not impartial.
Disqualification of Mr. Hansen does not render the County
Board’s decision invalid. “Disqualification will not be
permitted to destroy the only tribunal with power in the
premises” (E&E Hauling, supra, citing Brinkley v. Hassig, 83 F.2d
351, 357 10th Cir. 1933).
The fact remains that Ill. Rev. Stat. 1986 ch. No. 111—1/2
par. 1039.2(a) provided as follows: “The County Board of the
County or the overruling body of the municipality
...
shall
approve the site location suitability
...“.
The County Board is, by statute, the only body empowered to
render a decision in this matter; and the disqualification of Mr.
Hansen does not affect this. Additionally, Mr. Hansen was not
needed to constitute a quorum nor was his vote critical to the
outcome: the final vote was 21—0, with two abstensions.
In summary, the Board can find no basis for reversible error
with respect to the issue of alleged bias of LCB members.
Ex Parte Contacts
Petitioner next contends that the LCB’s decision was
fundamentally unfair because of certain ex parte contacts which
took place between LCB members and members of the public, and
that LCB members were unduly influenced by the public opposition
to the Application.
84—627
—22—
WMII notes that all nine of the LCB members who were called
to testify regarding their alleged ex parte contacts testified
that they received numerous telephone calls and letters in
opposition to the Application (See Tr. at 58—60, 95, 158, 192,
216, 253, 299, 314—6, 368—9, 422). However, seven of the nine,
Dolan, Fields, Geary, Moore, Calabresa, Axelrod, and LaBelle,
also testified that these calls and letters did not in any way
influence their votes (Tr. at 300, 423, 318, 223, 65, 257, and
203). LCB members also explained that they handled callers by
describing the hearing and siting process and stating that they
were unable to discuss the merits of the case, or by merely
thanking callers for their interest (Tr. at 57, 193—4, 253—4).
The two LCB members whose families received threatening phone
calls also testified that phone calls did not influence their
votes (Tr. at 257, 300). Only one LCB member, J. Richard
Anderson, testified that the letters he received from citizens
opposing the application factored in his vote on the Application
(Tr. 103—4).
The impropriety of ex parte contacts in administrative
adjudication is well—recognized and stems from the fact that such
contacts violate statutory requirements of public hearings and
public participation at hearings, may frustrate judicial review
of agency decisions, and may violate due process and fundamental
fairness rights to a hearing (E&E Hauling, supra at 606).
Once it is determined that ex parte contacts did in fact
occur, it is necessary to consider
whether, as a result of improper ex parte
communications, the agency’s decisionmaking
process was irrevocably tainted so as to make
the ultimate judgment of the agency unfair,
either to an innocent party or to the public
interest that the agency was obliged to
protect. In making this determination, a
number of considerations may be relevant: the
gravity of the ex parte communications;
whether the contacts may have influenced the
agency’s ultimate decision; whether the
contents of the communications were unknown to
opposing parties, who therefore had no
opportunity to respond; and whether vacation
of the agency’s decision and remand for new
proceedings would serve a useful purpose.
Since the principal concerns of the court are
the integrity of the process and the fairness
of the result, mechanical rules have little
place in a judicial decision whether to vacate
a voidable agency proceeding. Instead, any
such decision must of necessity be an exercise
of equitable discretion.
84—628
—23—
E&E Hauling, supra citing PATCO v. Federal
Labor Relations Authority, 685 F.2d 547, 564—
565 (D.C. Cir. 1982).
A court will not reverse an agency’s decision because of
improper ex parte contacts without a showing that the complaining
party suffered prejudice from these contacts. E&E Hauling at
607, citing Fender v. School District No. 25, 37 Ill. App. 3d
736, 745 (1976).
The Board finds in light of the above testimony that the ex
,parte contacts did not affect the votes of the LCB members
challenged by Petitioner, save for Mr. Anderson. In a previous
opinion, the Board faced a similar problem:
Messrs. Kelly and Laroue have clearly
specified that their votes were cast in part
due to public opinion which they derived
through ex parte contacts. Consequently,
their votes cannot stand and are disallowed.
These two individuals will only be able to
make determinations on the merits of that
application without relying on, or being
influenced by, the opinions of others
expressed via ex parte contacts.
This notwithstanding, the Board concludes that
the ex parte contacts described by Ash are not
a sufficient basis on which to find that the
County’s decision was arrived at in a
fundamentally unfair manner. All of the other
ex parte contacts which Ash alleges have
either been denied, ~ or have not been shown
by Ash to have had any impact on the votes
cast by the relevant County Board members
Thus, all that can be said is that two votes
out of the nineteen cast were improper. Under
the circumstances, the Board cannot find that
the ex parte communications have “irrevocably
tainted” the decision of the County.
Ash v. Iroquois County Board, PCB 87—29, at 15.
Similarly, the Board finds that LCB member Anderson cast his vote
against the Application in part due the opinions of citizens he
determined through ex parte contacts. His vote was therefore
improper and should be disallowed. The Board further finds that
Petitioner failed to show that it was prejudiced by the remaining
ex parte contacts, or that these contacts “irrevocably tainted”
the decision of the LCB.
Contained in its argument regarding ex parte contacts,
Petitioner also makes certain allegations concerning the
84—629
—24—
influence of public opinion and constituent pressure on LCB
members. Petitioner noted statements made by an LCB member
concerning a citizen petition presented in the A.R.F.
proceeding. Petitioner also discussed comments made at the PCB
hearing by members of the public who believed LCB members should
be influenced by letters and should be responsive to public
opinion in their judicial capacity, and further related a comment
made by a citizen during the LCB hearing as an example of
constituent pressure (WMII Brief at 129—131).
Since the illustrations offered in support of Petitioner’s
allegations are not ex parte contacts. The Board at this
juncture finds it necessary to point out the distinction between
ex parte contacts with individual county board members and public
opinion and its role in the decisionmaking process. The
Appellate Court has noted that public officials would recognize
public opinion and that the mere existence of even strong public
opposition
does not taint the proceedings, per se (See Waste
Management, supra at 1082). This is especially true in light of
Section 39.2 of the Act, which provides for public comment in the
public hearing process for landfill siting. This is distinct
from exp,,~te contacts which are those contacts between a
decisionmaker and a party or interested person outside the
presence of other interested persons or parties involved, and
without the opportunity for cross—examination.
The statments cited by WMII relating to the citizen petition
contained in the A.R.F. proposal do not concern this proposal and
need not be considered. All citizens comments made during the
LCB hearings are contained in the record and are proper to be
considered as provided by Section 39.2 of the Act. The testimony
of the two members of the public at the PCB hearing regarding the
amount of influence they believe the public should have on the
LCB members says nothing about the effect the ex parte contacts
may or may not have actually had on the LCB members, or whether
the members voted on the proposal without consideration of the
record. The Board therefore finds these allegations are without
merit.
Opportunity to Consider Record
Petitioner next alleges that the proceeding was
fundamentally unfair because the LCB members did not have an
adequate opportunity to consider the record, and that as a
result, this matter should be remanded to the LCB for
redetermination.
The Board addressed this issue in Ash v. Iroquois County
Board, supra. The Board, in applying the rationale of the
Illinois Supreme Court in Homefinders, Inc. v. City of Evanston,
65 Ill.2d 115 (1976), stated that:
84—630
—25—
The Board’s analysis of whether the County
adequately “considered” the evidence adduced
at hearing will involve consideration of two
questions: First, whether the transcripts
were reasonably available such that it can be
said that the County Board members had an
opportunity to review them, and second,
whether overall the County members were
sufficiently exposed to the record to support
a finding that they “considered” the evidence
within it.
Ash, slip. op. at 11
The Board finds that both of the tests of reasonable
availability and sufficient exposure, as applied to both the
Application and the transcripts of the hearings, are met in the
instant matter. It is attested to by LCB members that the
Application was available to them (Tr. at 53, 125, 154, 188, 211,
307—8, 310, 361, 427). It is also attested to by LCB members
that the hearing transcripts “would appear between a few days and
a week after the session was held, so we had time to peruse them”
(Tr. at 79, 83); that the transcripts “were routinely available
within a couple of days after the hearing date” (Tr. at 191); and
that the final transcript was received “within a couple of days”
of the March 30 final day of hearing (Tr. at 251). Although
Petitioner challenges each of these testiments (WMII Reply Brief
at 31), it provides no evidence which could lead this Board to
the conclusion that the testimony is false.
These facts are distinctly different from those presented in
Ash. There the hearing transcripts were not generally available
prior to the time the county board undertook its final action.
To this extent, Petitioner’s reliance upon Ash is misplaced.
Petitioner also challenges whether the Resolution, that
document which denied site location approval and which was
adopted by the full LCB on May 5, 1987, was sufficiently
available to the full LCB before its vote, and asserts that the
Resolution was “unlikely to have been read” “by a weary Board,
eager to complete the agenda and go home” (WMII Brief at 134).
It is uncontested that the vote on the Resolution took place
shortly following a continuous 25—hour session of the LCB held to
elect a new County Board Chairman. Petitioner seemingly implies
that this fact automatically rendered the LCB incapable of
registering an informed vote. Nevertheless, six of the eight LCB
members who where questioned by Petitioner on the matter of their
mental and/or physical state at the time of the vote testified to
their general alertness (Tr. at 241, 259, 305—6, 333, 407,
425). The other two used the word “exhausted” to characterize
their state (Tr. at 77, 178), but did not testify that they were
incapable of giving complete consideration to their vote as a
consequence.
84—631
—26—
On the matter of the availability of the Resolution, it is
uncontested that the Resolution in its final form was initially
adopted by the Hearing Committee on April 30, 1987. The history
of its distribution thereafter is less certain. One member of
the LCB testified that she first received a copy of the
Resolution on the morning of May 5 (Tr. at 78), although she had
received and read “summaries and briefs” “about a week before”
the vote (Tr. at 82). A second LCB member, who was also a member
of the Hearing Committee, stated that the Resolution may not have
been distributed to his fellow LCB members until May 5, although
he could not be sure of when the distribution took place (Tr. at
336, 341, 344—5). Conversely, another of the LCB members
testified that a draft copy of the Resolution was presented to
the LCB “perhaps five, six days before the final vote” (Tr. at
408—9); a second testified “whether it was in the exact form or
not, I saw something like this the Resolution within the week
before the meeting that we voted on the case” (Tr. at 202); and a
third testified that he believed that he had received the
Resolution before May 5, but that he did not recall how much
before (Tr. at 306). Still other LCB members testified that they
did not recall when they first received a copy of the Resolution
(Tr. at 123—4, 279).
It is unclear from this record when the Resolution was first
available to the full County Board. Differing recollections of
various individuals, from the vantage point of five months after
the fact, do not provide clarity on this issue. However, the
Board does not see that this a dispositive matter. Petitioner
provides no evidence that the LCB was unfamiliar with the content
of the Resolution, yet alone the exact form of the Resolution,
prior to the vote. It would appear that at least a “draft” of
the Resolution was available to the full LCB well before the day
of the vote, and that a summary of the record prepared by the LCB
counsel, who also prepared the text of the Resolution, was
similarly distributed well prior to May 5.
In viewing this entire matter, this Board must bear in mind
that the siting of WMII’s proposed facility was an issue of high
interest and visibility within Lake County and before the LCB
over a period of many months, and that the LCB had received over
this time a very voluminous record, including the Application
itself, transcripts of 33 days of hearing, a large number of
exhibits and public comments, and briefs. In this light, it is
unproven that the LCB members did not know the content of what
they were voting upon, irrespective of what exterior
circumstances might have preceeded that vote. For this reason,
the Board can find no basis for reversible error on the matter of
opportunity to consider the record.
STATUTORY CRITERIA
WMII next claims that the LCB’s decision was in error
because Petitioner satisfied’ all six of the statutory criteria
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contained in Section 39.2 of the Act, not just two as found by
the LCB. The Board first turns to the matter of Criterion #1.
Given the extraordinary length of the record below and the need
to efficiently analyze this record, the Board finds it
appropriate to consider the LCB’s decision in light of
Petitioner’s record, Objectors’ record, and the bases for the
LCB’s decision in turn.
CRITERION #1
Petitioner’s Case
Petitioner’s Application contains approximately 43 pages
regarding the matter of need for the proposed facility, as
prepared by Eldredge Engineering Associates, Inc., a consulting
firm retained by WMII. Included in the analysis, in addition to
text, are various maps, tables, and graphs which identify current
waste disposal facilities and projections of future waste
disposal needs.
WMII presented Richard W. Eldredge, a professional engineer
and principal preparer of the need section of the Application, as
a witness. Mr. Eldredge concluded that the proposed facility is
necessary to meets the needs of Lake County (R. 2/12 at 110). He
based this conclusion on analysis of the existing and projected
landfill capacity of the general Lake County area as presented in
the Application.
Specifically, Mr. Eldredge testified that there are three
active municipal waste landfills in the county, each of which
provides service to Lake County. These are A.R.F. at Grayslake
(adjacent to the proposed WMI facility), BFI in Winthrop Harbor,
and Zion at Zion (R. 2/12 at 91). There are also several
landfills in adjacent counties, including Mallard Lake in DuPage
County, Woodland in Kane County, Vuegler in McHenry County, and
Pleasant Run in Kenosha County, Wisconsin (Id. at 97—9). Mr.
Eldredge concluded that this combination of landfills is
sufficient to meet Lake County’s current needs (Id. at 106).
However, Mr. Eldredge additionally testified that this
situation can not be expected to last. In particular, he
believes that Lake County will need additional capacity of
400,000 gate yards per year by 1990 (R. 2/12 at 169), and perhaps
as much as 600,000 to 1.2 million additional yards of capacity by
the year 2010 (Id. at 170). He did allow that adjustments in the
amount of waste sent to particular facilities, principally the
BFI facility, could extend the date of needed additional capacity
to 1996 (Id. at 107). Mr. Eldredge’s conclusions are based on
the premises that certain existing landfills will reach capacity
in the future, and therefore be required to close, and that as “a
rule of thumb” the service area of a landfill is enclosed within
an approximate 15 mile radius around the landfill (Id. at 94—5,
133—4). Mr. Eldredge additionally made the observation that
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there is a movement on the part of landfills to restrict service
to in—county areas, thus raising uncertainty about Lake County’s
future ability to rely on out—of—county landfills (Id. at 97—9,
127).
Under cross—examination Mr. Eldredge testified that he did
not consider the Pheasant Run facility in his analysis of
available capacities (R. 2/12 at 123, 145, 172), nor did he
consider waste flowage to other out—of—the county facilities (Id.
at 172, 181). He also ~llowed that he chose to use the lower
SWAC Feasibility Study~ estimate of the annual gate yardage at
the BFI facility rather than a more recent and higher estimate
published by the Northeasten Illinois Planning Commission (Id. at
179), and that the 50 Lake County use figure he assigned to the
BFI facility may not be accurate (Id. at 180). Mr. Eldredge also
testified that he was aware of the admonition in the SWAC
Feasibility Study regarding the accuracy of the data therein (Id.
at 125), to wit:
The accuracy of the Data Base report was
sufficient for the purposes of doing a
technological assessment for waste disposal.
However, prior to actual sizing, design and
site location of a resource recovery facility
or new landfill, more precise figures fo~the
various waste streams should be developed 2•
Mr. Eldredge was the only WMII witness called expressly to
address the matter of need. However, two other WMII witnesses,
Harold Gershowitz and Peter Ware, also testified to matters
related to Criterion #1. Mr. Gershowitz is a Senior Vice
President of Waste Management, Inc. (R. 3/11 at 6), which is the
parent company of WMII (Id. at 7, 15). Mr. Gershowitz testified
that the parent company is committed to guaranteeing an
incinerator and landfill which will provide a disposal capacity
for 23 years (Id. at 8). Mr. Gershowitz also testified that his
company commits to building an incinerator with a capacity no
smaller than 250 tons per day and no larger than 1000 tons per
day (Id. at 204).
Mr. Gershowitz also addressed the matter of the geographic
origin of the wastes which would be handled at the proposed
facility. He noted that:
11 The SWAC Feasibility Study (Full title: Lake County Solid
Waste Management Plan Feasibility Study) was excluded from the
LCB’s record by order of the LCB Hearing Officer. It was
subsequently submitted as a public comment by WMII, but stricken
from the record by motion of the Hearing Committee (R. 4/30 at
j~—l2).
The quotation from the SWAC Feasibility Study cited here was
read into the record R. 2/12 at 125—6 and R. 3/23 at 35—6.
84—634
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Our current assumption very strongly antici-
pates that the waste generated in Lake County
will be all of the waste required for this to
be a very viable facility. (R. 3/11 at 62).
Mr. Gershowitz also testified that his company is prepared
to vest the County “with the right to preclude any waste coming
from outside the County, any time the County or generators in the
County can in fact provide tonnage themselves” (Id. at 63).
However, Mr. Gershowitz also noted that his company is not
requiring the County to guarantee the necessary tonnage (Id. at
22), and that if an agreement can not be reached “it’s going to
be incumbent upon Waste Managment if necessary to provide its own
tonnage to guarantee the integrity of the plant” (Id. at 24).
Mr. Gershowitz further allowed that this tonnage might derive
from outside the County (Id. at 24, 120, 153), and that the
ability to obtain such tonnage constitutes Waste Managment’s
“safety valve” for successful operation of the facility (Id. at
29).
Mr. Ware, WMII witness on the matter of design of the
proposed incinerator, also noted that, in the event Lake County
were to adopt an ordinance requiring recycling and that recycling
included all of Lake County’s paper, “there would be little or no
combustive material left to operate an incinerator with” and
“there would be no purpose to run the incinerator” (R. 2/16 at
167—8). He also noted that if both recycling of paper, glass,
and metals and composting of organic material were required,
there would be rio need for the proposed incineration facility (R.
3/30 Evening at 188).
Objectors’ Case
The first of the Objector witnesses called to testify
regarding Criterion #1 was Robert L.W. Luedtke, Village President
of Hawthorn Woods and chairman of the Lake County Joint Action
Solid Waste Planning Agency (“SWPA”), who testified on behalf of
SWPA. Mr. Luedtke noted that SWPA was formed pursuant to the
Illinois Local Solid Waste Disposal Act (PA 84—963) which became
effective July 1, 1986 (R. 3/5 at 139). He explained that SWPA
is composed of elected officials from twenty—six Lake County
municipalities plus the County of Lake, and that it represents
90 of the population of the County (Id. at 128). He also
indicated that the charge of SWPA is “to implement a
comprehensive publicly inspired long range solid waste management
plan for Lake County” (Id. at 127—8).
Mr. Luedtke outlined a nine—point program of objectives that
SWPA is attempting to accomplish by December 1, 1988 (R. 3/5 at
133—4). Mr. Luedtke asserted that these objectives are designed
to allow SWPA to present a solid waste management program to the
LCB for S.B. 172 review (Id. at 172) with sufficient lead time to
meet the waste disposal needs of the County (Id. at 134—5, 137—
84—63 5
—30—
8), and that SWPA “in full compliance with the spirit and the
intent of state law and policy, is already in the process of
meeting those waste needs” (Id. at 138).
Mr. Luedtke acknowledged that the SWAC Feasibility Study
recommended a solid waste disposal system consisting of a
combination of mass—burn incineration, landfilling, and recycling
(R. 3/5 at 129), and acknowledged that SWPA continues to support
these three elements (Id. at 155—6). Mr. Luedtke also
acknowledged that each of these elements is contained in the
Application filed by WMII (Id. at 140—1). Nevertheless, Mr.
Luedtke asserted that the WMII Application is “premature and as
such presupposes the outcome of several important decisions which
have not yet been made” (Id. at 135). Mr. Luedtke specifically
noted that there has been no decision by SWPA regarding whether
Lake County’s needs are better met by a public—owned, privately—
owned (Id. at 135) or jointly—owned (Id. at 171) facility; that
SWPA has not yet made decisions regarding the specific
technologies which should be employed (Id. at 136); and that a
decision now on the WMII proposal would preclude SWPA’s
consideration of comparing several sites (Id. at 137). He also
noted that acceptance of the Waste Management proposal would
eliminate possibilities of competitive bidding (Id. at 135—6).
As the basis for SWPA’s authority to make such decisions, Mr.
Luedtke quoted the Local Solid Waste Disposal Act:
Units of local government may provide by
ordinance, license, contract or government
(sic) that the methods of disposal of solid
waste specified in the plan shall be the
exclusive methods of disposal to be allowed
within the respective
jurisdictions,
notwithstanding the fact that competition may
be displaced or that such ordinance, license,
contract or other measure may have an anti—
competitive effect. (Id. at 131).
Resolutions supporting the SWPA initiative from the Fremont
Township Board (Hearing Ex. 7) and the Board of Trustees of the
Village of Mundelein (Hearing Exhibit 9) were admitted into the
record.
The County called two witnesses on the matter of Criterion
#1. The first of these was Robert Varner, an attorney with a
Washington D.C. firm and a specialist in the “implementation, the
planning, the procurement of resource recovery projects on behalf
of public sector entities” (R. 3/16 at 105). Mr. Varner
testified that he had reviewed the Application and the testimony
presented by Messrs. Eldredge and Gershowitz (Id. at 117)
regarding specifically the incinerator portion of the proposed
facility (Id. at 116—7). Mr. Varner concluded that the
information
presented in the Application and the testimony are
insufficient to allow the conclusion that the proposed
84—636
—31—
incinerator will
meet the needs of Lake County (Id. at 119, 134,
147—8).
Mr. Varner did not undertake an independent analysis of the
needs of Lake County for waste disposal capacity in general, but
rather assumed for the purposes of his analysis that such need
does exist (R. 3/16 at 118; 147). He questioned, however,
whether the proposed incinerator met that need. Mr. Varner
indicated that the Application and testimony are silent on
several matters which he judged to be critical in addressing
whether a proposed facility actually meets an identified need.
These include firm specification of the size of the proposed
facility (Id. at 111, 120, 128), quantities of wastes intended to
be processes (Id. at 111), methods of flow control (Id. at 112—3,
125), and financial obligations and risk allocation (Id. at 113,
120, 123). Mr. Varner indicated that uncertain sizing of the
facility “makes it very difficult on the overall planning effort
that a community must go through to achieve a successful
comprehensive approach to long—term reliable and environmentally
safe waste disposal” (Id. at 132). He also testified that “put
and pay” committments must be in place to assure that a facility
is financially viable (Id. at 121), and that he questioned
whether these committments can be developed in the one—year time
frame provided for in the Application (Id. at 135—6). He also
questioned whether the County or local municipalities might not
come under unexpected financial obligation should the revenues to
the proposed facility fall short (Id. at 123—6), and whether
there was a performance guarantee on the part WMII for
construction of the facility (Id. at 127—8)
Jeanne Becker was the second witness called by the County to
address Criterion #1. Ms. Becker had been retained by the Lake
County Planning Department to review that portion of the WMII
Application dealing with Criterion #1 (R. 3/23 at 8). She is
president of a planning and consulting firm (Id. at 5) and is
also a former employee and Chief of the Advanced Planning Section
of the Lake County Department of Planning, Zoning and
Environmental Quality (Id. at 6); she was principal staff person
to the Lake County Solid Waste Advisory Committee (Id.
)
and
presently is retained by SWPA “to provide technical assistance
and overall project management on the development of their plan”
(Id. at 7).
Ms. Becker’s conclusion is that “the proposed facility is
not necessary to meet the waste needs of the area it’s proposed
to serve” (R. 3/23 at 9—10). Ms. Becker stated that she based
her conclusion on her analysis of the capacity of existing waste
disposal sites within Lake County, plus the existing •Pheasant Run
facility in Wisconsin and the proposed Northwest Municipal
Conference facility at Bartlett in Cook County. Ms. Becker
calculated that the five active in—county landfills have a total
combined capacity of 2,650,000 yds/yr, 2,087,000 of which are
available to meet Lake County needs (Id. at 16—7; County Ex.
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8). This number constrasts with the 1,400,000 yds/yr of in—
county capacity asserted by Mr. Eldredge (WMII Ex. 4). Ms.
Becker pointed out that the disparity stems in part from a
420,000 yd/yr underestimation by Mr. Eldredge of the in—county
use of the BFI Winthrop Harbor facility (R. 2/23 at 10—13) and a
383,000 yds/yr underestimation of the in—county use of the Land &
Lakes landfill (Id. at 15; WMII Ex. 4). Ms. Becker was also
critical of Mr. Eldredge’s failure to consider Lake County waste
which flows outside the county (R. 2/23 at 18). In particularly,
she testified that Pleasant Run adds an additional “conservative”
110,000 yds/yr (Id. at 21) to the total capacity available to the
county. Should the Bartlett facility be developed, it would add
a prospective 172,000 yds/yr capacity for those four Lake County
communities which are affiliated with the Northwest Municipal
Conference (Id. at 22—3). Ms. Becker contended that the
combination of capacities is sufficient to meet Lake Counties
needs through 1996 or 1997 (Id. at 24, 73, 98), even if no new
in—county facilities are developed (Id. at 73).
Against this need background, Ms. Becker calculated that the
WMII proposal would add an additional 1,360,000 yds/yr capacity
(R. 3/23 at 25), 429,000 attributable to the proposed landfill
and 931,000 to the proposed incinerator (Id.). Ms. Becker
concluded that the proposed WMII facility is “much too large for
the County’s needs” (Id. at 95) and that:
when the landfill first opens in 1989, it is
going to have to take all of its waste from
outside the County because there is no need
for disposal capacity in 1989.
...
even in
1992 when this facility the incinerator
opens, you are
.. .
going to have to import
garbage from outside the County because again
there is no need for a facility in 1992. (Id.
at 26—7).
Ms. Becker did concede that the SWAC Feasibility Study,
which was prepared in early 1983 (R. 3/23 at 11), indicated that
there was need in Lake County for both additional landfill
capacity and for an incinerator (Id. at 39—40, 108). However,
she pointed out that subsequent events, including the closing of
the HOD landfill near Antioch and the opening the Pheasant Run
landfill, have significantly changed the need figures presented
in the SWAC study (Id. at 11). Lastly, Ms. Becker contended that
SWPA has planning for the waste disposal needs in hand, and it is
planning in such a manner as to avoid a future crisis in waste
disposal (Id. at 87).
Timothy Warren, Manager of the Illinois Department of
Natural Resources’ Resource Recovery Section, was called by the
Lake County Defenders to addresses State waste management
programs. Mr. Warren indicated that the purpose of the Illinois
Solid WMII Program, established under HB 3548, is to
84—638
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“progressively change the waste management practices from the
primary dependence on landfill disposal to a future which is
based on a number of waste management alternatives” (R. 3/27 at
174). He further noted that HB 3548 established a heirarchy of
waste disposal alternatives ranging from the most to the least
desirable: waste reduction, recycling and reuse, incineration
with energy recovery, incineration for volume reduction, and
landfilling (Id.). Mr. Warren also outlined programs that the
State offers to assist alternative waste management initiatives
(Id. at 175—83).
The Lake County Defenders also called Dr. Eliot Epstein, a
soil physicist and specialist in composting and stabilization of
wastes. Dr. Epstein testified that composting is a excellent
alternative to incineration, landfilling, and recycling (R. 3/19
at 11—12), which is widely used in Europe (Id. at 12) and locally
in the United States (Id. at 13). He also testified that
composting could easily serve the needs of Lake County (Id. at
14). Among the advantages of composting that Dr. Epstein cited
are its ability to dispose of 62 to 65 of typical solid waste
(Id. at 16); ability to handle a wide variety of wastes,
including such materials as yard wastes, sewage sludge, septic
sludge, industrial waste, and pulp and paper mill wastes (Id. at
22); low costs (Id. at 53); minimal environmental impact (Id. at
43—4); absence of need for a large central facility (Id. at 52);
and flexibility in adding to existing capacity (Id. at 52). Dr.
Epstein noted that landfilling is a necessary adjunct to a
composting facility to allow for disposal of the 20 of a typical
waste stream which is not compostable (Id. at 47—8, 54);
recycling can also be a important part of a total composting
operation (Id. at 50).
The Lake County Defenders called other witnesses on the
matter of composting, including Earl Van De Wege, owner of a
local lawn care service, who testified that there is a local
market for compost (R. 3/25 at 11). Thomas Ulick testified that
waste can be turned into a material beneficial to overall land
use and crop production (Id. at 83) as is shown in his use of
leaf compost at his organic vegetable farm (Id. at 72—80).
Charles J. Beeson, owner of a wholesale nursery operation (R.
3/26 at 7), testified that sludge is used as a compost (Id. at
8).
The Lake County Defenders also called two witnesses on the
matter of recycling programs. Patrick Barry, a freelance
journalist and recycling consultant, testified that recycling has
the potential to cut Lake County’s waste disposal needs by as
much as 50, and that 35 is a reasonable short—term goal (R.
3/26 at 27). He cited advantages of recycling, testifying that
recycling: cuts energy costs, reduces pollution, reduces need for
incineration, reduces need for landfillirig, saves natural
resources, and creates jobs (Id. at 31). Mr. Barry stated that
he believed that there should be no problem in finding markets in
84—639
—34—
the midwest for most of the commonly recycled materials (Id. at
33),
and that avoided costs are a critical factor in a favorable
analysis of the economics of recycling (Id. at 38—42). As
regards the proposed facility, Mr. Barry testified that the WMII
Application has insufficient detail to assess whether it proposes
“a significant recycling program” (Id. at 49—50).
The second Lake County Defenders’ witness on the matter of
recycling was Alice Howenstine, a member of the Illinois
Association of Recycling Centers and coordinator of recycling
drives in Mcflenry County (R. 3/26 at 170—1). Ms. Howenstine
testifed to the commitments and resources necessary to conduct a
successful recycling program (Id. at 171—208). She, like Mr.
Barry (Id. at 61), did acknowledge awareness of current recycling
programs run by WMII (Id. at 191).
County’s Decision
The LCB clearly placed substantial weight on the testimony
given by Ms. Becker, devoting approximately one—half of that
portion of the Resolution which deals with Criterion #1 to a
summary of Ms. Becker’s testimony (Resolution at 6). In
particular, the LCB points out conflicts between Mr. Eldredge’s
and Ms. Becker’s analyses of the capacity of existing landfills
and the need for added disposal capacity (Id.). The LCB also
placed weight on the determination that there will be no need for
additional landfills in the County until “1997 at the earliest”
(Id.) and that the capacity of the proposed facility is excessive
(Id.). The LCB further noted Petitioner’s failure to undertake
“an independent analysis” or review of landfill availability” and
Petitioner’s providing of “only a partial inventory of existing
landfills” (Id.). The LCB concluded that:
The burden of proof is on the applicant to
show that there is a need for the facility.
This the applicant has failed to do with any
credible evidence. (Id. at 6—7).
Board’s Finding
Both WMII and the LCB rely on Waste Management v. Pollution
Control Board, 123 Ill.App.3d 1075, 463 N.E.2d 969 (2nd Dist.
1984). WMII contends that according to this decision “a landfill
satisfies the need criterion if it is shown to be ‘reasonably
required by the waste needs of the area intended to be served’,
which would include ‘consideration of its waste production and
disposal capacities’”(WMII Brief at 23). The LCB counters that
according to this decision “the applicant must prove more than
that the proposed facility is convenient and that the term ‘need’
connotates an element of urgency” (LCB Brief at 11; emphasis in
original).
84—640
—35—
The record clearly shows that there was extensive
consideration of Lake County’s waste
production and disposal
capacities by both WMII and the Objectors. According to Mr.
Eldredge’s data, substantial shortfalls in capacity could be
expected to occur as early as 1990. However, Mr. Eldredge failed
to consider the capacity of at least one major landfill which
uncontes~dly receives Lake County wastes, the Pheasant Run
landfill
~,
and chose to rely on the dubious estimates contained
in the four—year old SWAC Feasibility Study of the county’s use
of two in—county landfills. Moreover, he did conclude that the
shortfall date could be as late as 1996. Ms. Becker’s data, on
the other hand, indicate that shortfalls can not be expected
until 1996 or 1997 at the earliest. Her data does include the
Pheasant Run facility, as well as up—dated estimates of the use
of in—county landfills.
WMII contends that the Ms. Becker’s analysis was
inconsistent with the estimates of the waste disposal needs
contained in the SWAC Feasibility Study (WMII Brief at 21).
However, while neither the LCB nor Ms. Becker have rejected the
SWAC study CR. 3/23 at 50—1), there is uncontroverted testimony
that the SWAC report is out—of—date with respect to landfill
capacity data (Id. at 11—22). Accordingly, WMII was remiss in
relying upon these figures, and Ms. Becker’s updated data was the
credible information upon which the LCB had to rely. Moreover,
WMII’s own witness, Mr. Eldredge, chose to impeach the SWAC study
by noting that it overestimated the per capita rate of waste
production CR. 2/12 at 101, 124), and accordingly also
overestimated the need for disposal capacity. Having found the
SWAC study faulty in part, plus being aware of the SWAC study’s
own admonition regarding the accuracy of the SWAC data, WMII
would have been well advised to gain independent verification of
those remaining portions of the SWAC study upon which it intended
to base its case; there is no evidence that WMII did this.
On this basis, the Board finds that a decision that
additional Lake County waste disposal capacity is not needed for
nine or more years is not against the manifest weight of the
evidence. There remains the question of whether this
circumstance nevertheless contains “an element of urgency”, as
invisioned by the Waste Management court. The Board does not
believe that it does. The record clearly indicates that
landfills and/or incinerators can come into operation in
13 Petitioner argues in its reply brief that that it need not
have considered this landfill (WMII Reply Brief at 7—8). The
Booard is not pursuaded by the argument. The fact is that WMII’s
own witness testified that about one—third of Lake County lies
within 15 miles of the Pheasant Run landfill (R. 2/12 at 98), and
thus this portion of Lake County constitutes a “service area” for
that landfill even according to WMII’s own 15—mile criterion (Id.
at 94—5).
84—64 1
—36—
substantially less than wine years, and thus be on—line in time
to meet the future need1
.
The LCB also heard extensive
testimony that it would be judicious for Lake County to further
explore its waste disposal options before committing to any
particular mode(s) of disposal or to any particular site(s) at
which to conduct the disposal. Moreover, the LCB heard
authoritive testimony that comprehensive planning is well under
way, and that its fruition might obviate the need for the
facility in question. It is therefore reasonable to conclude
that there is no urgency associated with approval of the
particular facility proposed.
In summary, the Board finds that WMII has not carried the
heavy burden of showing that the LCB’s decision was contrary to
the manifest weight of the evidence. The LCB clearly heard
conflicting testimony on many aspects of this matter. The Board
can not find reversible fault with the manner in which the LCB
weighed the evidence before it. In this light, it must be
concluded that any informed and fair decision—making body could
have reached the conclusion reached by the LCB. The LCB’s
decision accordingly does not meet any of the tests necessary for
a finding against the manifest weight of the evidence standard.
This Board will therefore affirm the LCB’s decision.
CONCLUSION
Having found that the LCB decision on Criterion #1 was not
against the manifest weight of the evidence, the Board must
affirm the LCB’s decision to deny the WMII Application. In as
much as the Criterion #1 ruling is also dispositive of the case,
the Board will and need not go further in its analysis of this
matter. In so doing, the Board is aware that it is departing
from its prior general practice with respect to S.B. 172 cases:
the Board has most often proceeded to analyze and rule on all
contested criterion decisions made below whether or not a portion
of that analysis would have been dispositive. The Board has so
acted, in part, out of a desire to provide guidance in an arena
where case law was rudimentary and many issues were matters of
first impression. The Board has now developed a substantial body
of case precedent on criteria #2—6, and therefore believes that
this general impetus for the Board’s continuation of its prior
practice is no longer compelling.
14 The Board notes that in Waste Management the court held that
need for a landfill expansion had not been demonstrated where
existing available facilities could handle the waste production
for 10 years. The Board also notes that in a earlier case
involving the same appellee, Waste Management of Illinois v.
Pollution Control Board, 122 Ill.App. 3d 639 (1984), the court
also held that need had not been demonstrated where existing and
available landfills were sufficent to handle waste production for
over 10 years.
84—642
—37—
Rather, the Board believes that it is appropriate to revert
to general judicial practice of proceeding no further than is
necessary to find disposition of the matter, and thus achieve
administrative economy and conservation of the public resource.
In the particular matter at hand, the Board believes that no
significant end would result sufficient to warrant analysis
beyond that already undertaken.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The May 5, 1987, decision of the Lake County Board denying
site—suitability approval to Waste Management of Illinois, Inc.,
for Petitioner’s proposed incinerator and landfill is hereby
affirmed.
IT IS SO ORDERED.
Board Members Joan Anderson and 3. Theodore Meyer dissented.
Board Member J. Marlin concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ab9ve Opinion and Order was
adopte on the /74~~day of
L~&’
,
1987, by a vote
of
-Z .
Dorothy M. unn, Clerk
Illinois Pollution Control Board
84—643
