2

Jackson County filed its post-hearing brief on August 6, 2002. SIRL filed its post-hearing

brief on August 7, 2002. On August 16, 2002, Gere filed a motion for leave to file a reply

brief, along with a reply brief. One public comment was filed before the Board. The

comment was made by Gary Pearson, the General Manger for the SIRL landfill and was

favorable toward SIRL. Tr. at 7.

 

For the reasons set forth below, the Board affirms Jackson County’s decision to grant

siting approval.

 

BACKGROUND

 

Gere is the owner of the Perry Ridge Landfill (Perry Ridge), in Perry County.

C03536. A developmental permit was issued by the Agency to Perry Ridge, but the landfill

has not been issued an operating permit. C00039. SIRL is the owner and operator of the

Southern Illinois Regional Landfill, the facility at issue. SIRL’s landfill was originally

permitted in 1971. C00035.

 

On November 5, 2001, SIRL filed an application for site location approval of the South

Unit Expansion of the Southern Illinois Regional Landfill in Jackson County. C0001-C01627.

1

The Pollution Control Facility Committee (Committee) of Jackson County held public hearings

on February 4, 2002, February 5, 2002, February 14, 2002, February 15, 2002 and February

26, 2002. The Committee issued a unanimous recommendation finding that the application

met the criteria set forth in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2000))

amended by

 

P.A. 92-0574, eff. June 26, 2002, on April 10, 2002. C03745-C03750. Jackson County

unanimously adopted a resolution on April 10, 2002 granting local siting approval of the South

Unit Expansion. C03776-C03782.

 

 

  

REVIEW

 

OF LOCAL

 

SITING

 

DECISIONS

 

 

Under Illinois law, local units of government act as siting authorities that are required

to approve or disapprove requests for siting of new pollution control facilities

,

including new

landfills. The process is governed by Section 39.2 of the Act. 415 ILCS 5/39.2 (2000)

 

amended by

P.A. 92-0574, eff. June 26, 2002,. In addition, Illinois law provides that siting

decisions made by the local siting authorities are appealable to this Board. The appeal process

is governed by Section 40.1 of the Act. 415 ILCS 5/40.1 (2000)

amended by

P.A. 92-0574,

eff. June 26, 2002,.

 

1 The record form the proceeding before Jackson County will be cited as “C__”; the petition

for review will be cited as “Pet. at __”; Gere’s brief will be cited as “Gere at __”; Jackson

County’s Brief will be cited as “Jackson County at __”; SIRL’s brief will be cited as “SIRL at

__”; Gere’s reply brief will be cited as “Gere reply at __”; and the transcript from the hearing

before the Board will be cited as “Tr. at __.”

---

 

3

Section 39.2(a) provides that the local siting authority, in this case the Jackson County

Board, is to consider as many as nine criteria when reviewing an application for siting

approval. 415 ILCS 5/39.2(a) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002. Section

39.2(g) of the Act provides that the siting approval procedures, criteria, and appeal procedures

provided for in Section 39.2 are the exclusive siting procedures for new pollution

 

control

 

facilities

.

However, the local siting authority may develop its own siting procedures, if those

procedures are consistent with the Act and supplement, rather than supplant, those

requirements.

See

Waste Management of Illinois v. PCB, 175 Ill. App. 3d 1023, 1036, 530

N.E.2d 682, 692-93 (2d Dist. 1988). Only if the local body finds that the applicant has proven

by a preponderance of the evidence that all applicable criteria have been met can siting

approval be granted. Hediger v. D & L Landfill, Inc., (Dec. 20, 1990), PCB 90-163, slip op.

at 5.

 

When reviewing a local decision on the nine statutory criteria, this Board must

determine whether the local decision is against the manifest weight of the evidence. McLean

County Disposal, Inc. v. County of McLean, 207 Ill. App. 3d 352, 566 N.E.2d 26 (4th Dist.

1991); Waste Management of Illinois, Inc. v. PCB, 160 Ill. App. 3d 434, 513 N.E.2d 592 (2d

Dist. 1987); E & E Hauling, Inc. v. PCB, 116 Ill. App. 3d 586, 451 N.E.2d 555 (2d Dist.

1983), aff'd in part 107 Ill.2d 33, 481 N.E.2d 664 (1985). A decision is against the manifest

weight of the evidence if the opposite result is clearly evident, plain, or indisputable from a

review of the evidence. CDT Landfill Corporation v. City of Joliet, (Mar 5, 1998), PCB 98-

60, slip op. at 4,

citing

Harris v. Day, 115 Ill. App. 3d 762, 451 N.E.2d 262, 265 (4th Dist.

1983).

 

This Board, on review

,

may not re-weigh the evidence on the nine criteria. Where there

is conflicting evidence, the Board is not free to reverse merely because the lower tribunal

credits one group of witnesses and does not credit the other. Fairview Area Citizens Taskforce

v. PCB, 198 Ill. App. 3d 541, 550, 555 N.E.2d 1178, 1184 (3d Dist. 1990); Tate v. PCB, 188

Ill. App. 3d 994, 1022, 544 N.E.2d 1176, 1195 (4th Dist. 1989); Waste Management of

Illinois, Inc. v. PCB, 187 Ill. App. 3d 79, 82, 543 N.E.2d 505, 507 (2d Dist. 1989). Because

the local government could have drawn different inferences and conclusions from conflicting

testimony is not a basis for this Board to reverse the local government's findings. File v. D &

L Landfill, Inc. (Aug. 30, 1990), PCB 90-94,

aff'd

, 219 Ill. App. 3d 897, 579 N.E.2d 1228

(5th Dist. 1991).

 

In addition to reviewing the local authority's decision on the nine criteria, the Board is

required under Section 40.1 of the Act to determine whether the local proceeding was

fundamentally fair. In E & E Hauling, Inc. v. PCB, the appellate court found that although

citizens before a local decision maker are not entitled to a fair hearing by constitutional

guarantees of due process, procedures at the local level must comport with due process

standards of fundamental fairness. E & E Hauling, Inc. v. PCB, 116 Ill. App. 3d at 596, 451

N.E.2d at 564;

see also

Industrial Fuels & Resources v. PCB, 227 Ill. App. 3d 533, 592

N.E.2d 148 (4th Dist. 1992); Tate v. PCB, 188 Ill. App. 3d at 1019, 544 N.E.2d at 1193.

Due process requirements are determined by balancing the weight of the individual's interest

---

 

4

against society's interest in effective and efficient governmental operation. Waste Management

of Illinois v. PCB, 175 Ill. App. 3d 1023, 1037, 530 N.E.2d 682, 693 (2d Dist. 1988). The

manner in which the hearing is conducted, the opportunity to be heard, the existence of

ex

parte

contacts, prejudgment of adjudicative facts, and the introduction of evidence are

important, but not rigid elements in assessing fundamental fairness. Hediger v. D & L

Landfill, Inc. (Dec. 20, 1990), PCB 90-163, slip op. at 5.

 

 

ISSUES

 

The petition for review raised one issue for the Board’s consideration: whether the

Jackson County decision that SIRL met the need criterion.

See

Section 39.2(a)(i) (415 ILCS

5/39.2(a)(i) (2000))

amended by

P.A. 92-0574, eff. June 26, 2002 – that the proposed facility

is necessary to accommodate the waste needs of its intended service area - is against the

manifest weight of the evidence. Pet. at 2. However, in its brief, Gere, for the first time,asks

the Board to rule that SIRL’s siting application is against the manifest weight of the evidence

with respect to both criterion (i), (the need criterion), and criterion (viii). Gere at 14.

Criterion (viii) requires the proposal to be

 

consistent with the county’s solid waste management

plan.

See

415 ILCS 5/39.2(a)(viii) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002.

 

PRELIMINARY MATTERS

 

A number of preliminary matters have arisen. The Board will address each of these in

turn.

Gere’s Motion to File a Reply Brief

 

On August 16, 2002, Gere filed a motion for leave to file a reply brief, along with a

reply brief. To date, no response to the motion has been received.

 

In its motion, Gere requests leave to file a reply to respondents’ briefs in order to

prevent material prejudice to Gere. Mot. at 1. Gere asserts that the response briefs were

replete with mischaracterizations of the record and misrepresentations of arguments, and that

without leave to file a reply, the Board may be misled and thus Gere would be materially

prejudiced. Mot. at 1-2.

 

In addition, Gere asserts that it requires leave to identify and rebut a number of new

and irrelevant arguments made by SIRL in its brief. Mot. at 2. Further, Gere asserts that

SIRL presented numerous statements as though they are part of the record, when many are no

more than unsupported assertions or suppositions.

Id

.

 

Finally, Gere notes that SIRL included the motion to strike in its brief. Mot. at 2.

Gere argues that, despite SIRL’s sharp practice of waiting until the last minute to file its

motion, Gere is including in its reply a response to the motion to strike, and that in the absence

of the allowance to file the reply, Gere would be materially prejudiced through inability to file

a response to SIRL’s late motion.

Id

.

---

 

5

 

The Board grants Gere’s motion to file a reply, and accepts Gere’s reply brief.

Gere’s Motion to Supplement the Record

 

In its reply brief, Gere asserts that upon reviewing the record in preparation of the

reply, it became aware that two pages of its exhibit 12 were omitted from the record. Gere

states that the first sheet of the only admitted page clearly reveals that it is the first of a three-

page document. Reply at 21. Gere requests that the Board allow the entire exhibit to be filed

as a supplement to the record.

 

The Board grants Gere’s motion to supplement the record, and accepts the three pages

of attached exhibit B as Gere exhibit 12.

 

Attempted Challenge to Criterion (viii)

 

Motion to Strike

 

In its brief, SIRL moves to strike that portion of Gere’s request for relief requesting the

Board to rule with respect to Criterion (viii). SIRL at 27-28. SIRL asserts that Gere

designated only one issue to be heard on appeal in its petition, and that prior to the filing of its

brief did not in any way challenge Jackson County’s decision as to other criterion. SIRL at 27.

SIRL continues that Gere did not request that it be allowed to challenge other criterion before

the close of the hearing, but only presents the matter in the very last portion of the very last

sentence of its closing brief.

Id

.

 

SIRL asserts that neither the county board nor SIRL was aware of Gere’s intention to

challenge criterion (viii) until receipt and review of the closing brief on or about July 24, 2002,

and that both Jackson County and SIRL would be substantially prejudiced by Gere being

allowed to raise any argument as to this criterion after the hearing in the matter has been

closed. SIRL at 27.

 

Finally, SIRL argues that the Board would establish an unwise precedent by allowing

Gere to argue issues in its closing brief that were not previously raised, and that Gere’s attempt

to sneak issues literally in the back door of this case should be denied. SIRL at 27.

 

Response to Motion to Strike

 

Gere asserts that SIRL has not explained in any specific or general way how it is

prejudiced by Gere’s raising of criterion (viii). Reply at 18-19. Gere argues that the case

cited by SIRL (A.R.F. Landfill, 174 Ill. App. 3d 82) was decided with respect to an issue of

prejudice concerning fundamental fairness, and not with respect to one of the substantive

criteria. Reply at 19.

 

---

 

6

Gere contends, nonetheless, that it clearly informed both SIRL and Jackson County on

the very first night of the proceedings before Jackson County that it would challenge the siting

application on the basis of both criterion (i) (need) and criterion (viii) (consistency with the

solid waste management plan). Reply at 19, citing C02069-C02072.

 

Gere argues that SIRL cites no authority to support the “novel position” that it was

obligated to have specified the criterion (viii) issue in earlier pleadings with the Board or to

have appeared at the Board’s hearing to state its intention to challenge this criterion. Reply at

19. Gere asserts that nothing in the Act nor the Board’s regulations provide any such

requirement.

 

Finally, Gere argues that because the criteria in Section 39.2(a) are to be decided on the

record produced before Jackson County, virtually no purpose would have been served by

raising the issue at hearing, since no additional evidence could have been introduced on the

point. Reply at 19.

 

Discussion

 

Section 107.208 of the Board’s procedural rules provides the petition content

requirements for a petition to review a pollution control facility siting decision. See 35 Ill.

Adm. Code 107.208. Such a petition must include,

inter alia

, a specification of the grounds

for the appeal, including any manner in which the decision as to particular criteria is against

the manifest weight of the evidence. 35 Ill. Adm. Code 107.208(c).

 

In its petition, Gere alleged only that the Jackson County decision as to criterion (i) was

against the manifest weight of the evidence. Gere never attempted to amend its petition, and

did not request the Board to review criterion (viii) until the filing of its post-hearing brief. No

attempt to challenge criterion (viii) is contained in any hearing officer order in this matter.

 

The Board grants SIRL’s motion to strike. Gere did not meet the requirements of

Section 107.208(c) that clearly provide that the petition must specify any manner in which the

decision as to particular criteria is against the manifest weight of the evidence. Gere had the

opportunity to amend the petition at any point before the hearing, and even during the hearing

itself, but never attempted to do so. Gere did not raise the challenge to criterion (viii) until

July 26, 2002, when it filed its post-hearing brief. Gere’s late attempt to challenge criterion

(viii) before the Board resulted in prejudice to the respondents, who were not able to address

this issue through the pendency of the case. At a minimum, the respondents were prejudiced

by having to spend unanticipated time and effort responding to a new issue not presented until

only two weeks remained before their briefs were due.

 

Accordingly, the motion to strike is granted, and that portion of Gere’s brief that

requests the Board rule that Jackson County’s decision approving the siting application is

against the manifest weight of the evidence with respect to criterion (viii) is stricken.

 

---

 

7

CHALLENGE TO SITING CRITERION (i)

 

Having determined that Gere may not, at this point, challenge criterion 8, the Board

now turns to a discussion of the remaining challenged criterion. As noted above, the Board

cannot reweigh the evidence. The Board may only reverse the Jackson County decision on the

criteria if the decision was against the manifest weight of the evidence. Waste Management of

Illinois, Inc. v. IPCB (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592. A decision is against the

manifest weight of the evidence if the opposite result is clearly evident, plain, or indisputable

from a review of the evidence. Harris v. Day, 115 Ill. App. 3d 762, 451 N.E.2d 262. Merely

because the Board could reach a different conclusion, is not sufficient to warrant reversal.

City of Rockford v. PCB and Frank’s Industrial Waste, (2nd Dist. 1984) 125 Ill. App. 3d 384,

465 N.E.2d 996.

 

The sole criterion at issue provides:

 

The facility is necessary to accommodate the waste needs of the area it is intended to

serve. 415 ILCS 5/39.2(2)(i) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002,.

 

Gere’s Argument

 

Gere argues that the uncontroverted evidence reveals that at the earliest, SIRL’s

expanded facility will not be necessary for eleven or more years. Gere at 6. Gere contends

that no dispute exists with respect to the threshold issue of how long it will be before the

service area exhibits a shortfall in disposal capacity. Gere at 3. Gere claims that SIRL’s

witness at the underlying hearing Timothy Boos, acknowledged that, without the sought

expansion, the earliest at which the service area would run out of capacity is the year 2013.

Gere at 3. Further, Gere contends that Mr. Boos’ testimony relates to a worst-case scenario

that would likely not occur and that the earliest date of shortfall should be after 2013 and,

perhaps, not until 2030.

Id

.

 

Gere cites to an Illinois Appellate Court case holding that while a proposed landfill

need not be shown to absolutely necessary, it still must be shown to be “expedient, indicating

some urgency or reasonably convenient. In other words, the applicant must show his landfill

is reasonably required by the waste needs of the area taking into consideration its waste

production and disposal capabilities.” Gere at 4 citing Wabash and Lawrence Counties

Taxpayers and Water Drinkers Assoc. v. PCB, 198 Ill. App. 3d 388, 391, 555 N.E.2d 1081,

1084 (5th Dist. 1990). Gere contends that ‘reasonably convenient’ also requires a level of

urgency and requires a petitioner to show more than convenience.

Id

.

 

  

Gere asserts that Illinois courts have universally rejected needs analyses that propose

landfills in service areas that will not run out of airspace, absent the siting proposals, for 10

years or more. Gere at 4. Gere points to another appellate court case allowing the siting body

to consider evidence of a proposed new facility as well as the existence of nearby facilities

---

 

8

outside of the county to decide that there is no need within the meaning of criterion (i). Gere

at 5-6, citing 175 Ill. App. 3d 1023, 520 N.E.2d 682 (2nd Dist. 1988).

 

Gere contends that the record reveals, and SIRL admits, current adequate capacity.

Gere at 7. Gere asserts that the existing SIRL site will not run out of airspace for four or five

years, and that SIRL admits that Perry Ridge, with its 20 years’ capacity, will be open in 2002

or 2003, and that the Cottonwood Hills facility near Marissa is already open with a capacity of

nearly 46 million cubic yards. Gere at 7. Gere further states that the Marion Ridge Landfill

located in adjacent Williamson County with its capacity of 37 million cubic yards is in the

process of seeking a developmental permit.

Id

. Gere contends that if the Marion Ridge

airspace is added to SIRL’s existing airspace, that there will indeed be a tremendous glut of

available airspace.

Id.

 

 

Gere asserts that the planning entities responsible for production of the Greater Egypt

Region Municipal Waste Management Plan recommended against the expansion of SIRL or

any other facility until after all active proposals were concluded. Gere at 8. Gere contends

that the planners said that if the Perry County and Williamson County landfills received siting

approvals, there would be no need or justification for SIRL’s additional landfill initiative.

Gere at 9.

 

Gere further asserts that SIRL and Jackson County have adopted a “convenience”

interpretation of the need criterion, but that this interpretation has been specifically rejected by

every court that has considered. Gere at 9, citing 123 Ill. App. 3d 1075, 1084, 463 N.E.2d

969, 976 (2nd Dist. 1984). Gere claims that Jackson County’s approval of SIRL’s proposal

could have grave environmental consequences for the entire planning region by causing a

capacity surplus. Gere at 9-10. Gere contends that the heart of the need criterion is the

regional nature of solid waste management, and that both Perry County and Saline County

addressed this issue to the Jackson County Board, but were ignored. Gere at 10. Gere asserts

that both Perry and Saline County recently granted siting approval for new landfills within

their borders on reliance upon the then-current needs of service areas that include and overlap

with the service area described by SIRL. Gere at 10.

 

Gere asserts that one major reason Perry Ridge was sited by Perry County was because

of the expected closure date of SIRL and that SIRL’s proposed expansion will interfere with

the reasonable and legitimate expectations of Perry County Gere at 11. Gere notes that the

Saline County Board’s Landfill Committee Chairman, Jim Grimes, expressed similar concerns

when noting that now, as opposed to their 1997 proceeding, there is no urgency at all. Gere at

11. Gere contends that Mr. Grimes also referenced potential environmental hazards as a result

of too much available disposable capacity. Gere at 12, citing C03208. Gere claims that Mr.

Grimes urged Jackson County to reject SIRL’s proposal because the additional airspace is

simply not necessary and will interfere with the attempts of Saline County to provide a healthy

environment to its citizens. Gere at 12, citing C03210.

 

---

 

9

Gere contends that the Marion Ridge proposed landfill is proceeding and if it receives

approval, the result will be a substantial capacity surplus in the region and one of the area’s

landfills likely will not make it. Gere at 13. Because, concludes Gere, there is no current

urgency, there was no justification for Jackson County to have approved SIRL’s proposal and

thereby to have subjected the surrounding counties to the dangers of too much landfill capacity.

Id.

   

 

Gere highlights the testimony of its witness Don Sheffer that throughout the proposed

area SIRL contends it will serve numerous expansion proposals exist in Missouri and Kentucky

as well as throughout Southern Illinois. Gere at 14. Based on this, Gere contends, Mr.

Sheffer was able to conclude that no immediate crisis situation exists so that something needs

to be done right now.

Id.

   

 

Finally, Gere requests that the Board rule that the Jackson County decision approving

the siting application of SIRL is against the manifest weight of the evidence with respect to

criterion one and that it should be reversed and SIRL’s application denied. Gere at 14.

 

Jackson County’s Arguments

 

  

Jackson County first notes that Gere bears the burden of showing the Board that the

siting decision was against the manifest weight of the evidence, and that the evidence clearly

demonstrates that Gere has failed to carry its burden of proof because the record amply

supports Jackson County’s decision in this case. Jackson County at 3.

 

Jackson County asserts that if after reviewing the record in this case, the Board finds

that Jackson County could have reasonably reached its conclusion, the decision must be

affirmed. Jackson County at 5. Further, Jackson County contends that the fact that a

different conclusion might also be reasonable is insufficient, but that rather the opposite

conclusion must be clearly evident, plain or indisputable.

Id.

   

 

Jackson County asserts that necessary does not meant that landfills must be shown to be

absolutely necessary, only that they must be shown to be reasonably required by the waste

needs of the area intended to be served, taking into consideration the waste production of the

area and the waste disposal capabilities, along with any other relevant factors. Jackson County

at 6,

citing

Waste Management of Illinois, Inc. v. PCB, 122 Ill. App. 3d 639, 461 N.E.2d 542

(3rd Dist 1984).

 

Jackson County maintains that over the last few years, speculative landfill developments

have been proposed in Williamson, Saline, Perry and Randolph Counties, but that the status of

these developments is uncertain. Jackson County at 7. Jackson County asserts that the ability

of these proposed landfills to provide for the citizens of Southern Illinois is also uncertain since

none of these developers presently operate any waste disposal or collection services in the

region.

Id.

  

 

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10

Jackson County contends that SIRL is so vital to the region’s needs that the Greater

Egypt Region Municipal Waste Management Plan states that if the owners of SIRL do not want

to expand the landfill, that further expansion could be initiated by the County, and that the

County should support further development and expansion of SIRL to serve its long-term

needs. Jackson County at 7, citing C00035. Jackson County further maintains that SIRL is

expected to reach capacity in less than five years, and that the proposed expansion will

guarantee the future disposal needs of Jackson County and surrounding Illinois counties for

approximately 20 years.

Id.

    

 

Jackson County asserts that although Perry Ridge is not yet receiving waste, the

permitted capacity was assumed as available capacity in the service area and accounted for in

the application, and that the additional capacity provides only about 30 percent of the service

area need during the study period. Jackson County at 9.

 

Further, Jackson County discusses the testimony of Mr. Boos who testified that the

SIRL expansion is necessary to accommodate the waste needs of the area it is intended to

serve. Jackson County at 10. Jackson County states that Mr. Boos testified that the basis for

his opinion, that the expansion is necessary to accommodate the waste needs of the service

area, is as follows: that the service area is currently a net exporter of waste; that SIRL is the

only operating facility in the service area; that it has been a long standing provider for the

area; that they will be out of space in a few years; and that without expansion, the service area

will consume its permitted operating capacity by 2006. Jackson County at 10. Jackson County

asserts that Mr. Boos testified that even if Perry Ridge is included, the service area would

consume its capacity by 2013, and that if both SIRL and Perry Ridge were both assumed to be

operating facilities, that the needs of the service area would still not be satisfied.

Id.

 

 

According to Jackson County, Gere’s witness, Don Sheffer, testified that if SIRL runs

out of capacity in 2006 and Perry Ridge doesn’t open by that time, there would be no available

disposal capacity facilities within the service area. Jackson County at 11, citing C03173.

Jackson County asserts that the Greater Egypt Region Municipal Waste Management Plan

offers recommendations for Jackson County landfill disposal that state the county should

“support further development and expansion of the Southern Illinois Regional Landfill to serve

its long-term needs.” Jackson County at 15, citing C00341.

 

Finally, Jackson County identifies testimony from Mr. Boos stating that “it couldn’t be

any clearer in the solid waste management plan from 1996, and the 2001 update clearly

identified that the future needs for the county and the surrounding area will be – is expected to

be provided by SIRL. It’s pretty clear that the plan identified SIRL as the long term solution

for its waste needs.” Jackson County at 16, citing C02954, C02957.

 

SIRL’s Arguments

   

SIRL asserts that when reviewing the Jackson County decision granting site approval,

the Board is limited to a determination of whether the decision on the criteria is contrary to the

---

 

11

manifest weight of the evidence. A point, states SIRL, that Gere conveniently fails to identify

and apparently does not believe deserves consideration. SIRL at 2. SIRL contends that a

decision is contrary to the manifest weight of the evidence only if the opposite result is clearly

evident, plain or indisputable from a review of the evidence. SIRL at 3. SIRL asserts that

considerable deference must be given to the local unit of government, and that the decision

shall only be overturned under the most extraordinary of circumstances. SIRL at 4.

 

SIRL contends that under any standard of review, the record as developed in this matter

contains more than sufficient detail upon which Jackson County could have based its decision

that every criterion in 39.2(a) (including criterion 1) was met. SIRL at 4. The application

itself, asserts SIRL, contains sufficient detail upon which Jackson County could have properly

determined that criterion 1 had been satisfied.

Id.

  

  

SIRL argues that the application sets forth clearly that the existing capacity of SIRL will

be filled on or around 2006, despite Gere’s assertions to the contrary. SIRL at 4. Expansion

of the landfill is so vital to the area’s waste needs, contends SIRL, that the Greater Egypt

Regional Municipal Waste Management Plan states that further expansion of the landfill could

be initiated by the county. SIRL at 5.

 

SIRL notes that the application highlights that the SIRL facility is the only operating

facility within the service area, and that if the facility is not expanded; the existing facility is

expected to reach capacity in less than five years. SIRL at 5, citing C00035, C00039. SIRL

contends that it has never, nor have any of its testifying witnesses or representatives, indicated

that the expected capacity of the facility will extend past five years. SIRL at 5. SIRL

maintains that only four additional existing sanitary landfill are currently operating within 25

miles outside of the service area, and that one of them (Saline County Landfill) is scheduled to

close in the near future. SIRL at 5.

 

SIRL contends that of the three proposed facilities within 25 miles outside the service

area, Grand Prairie in Randolph County has already been denied siting approval, and only

Perry Ridge in Perry County has even been granted a development permit. SIRL at 6. SIRL

notes that none of the three proposed facilities have existing hauling or waste management

operations. SIRL at 6, citing C00041.

 

SIRL asserts that not one regional planning commission or authority located within the

service area designated by SIRL in the application, appeared and formally objected to the

application; but that, at most, Saline and Perry County filed public comments that expansion

should not be allowed as the siting may prejudice the potential financial interest of the counties

that have landfill projects pending. SIRL at 2.

 

In the application, SIRL sets forth a disposal capacity analysis that asserts that even

assuming Perry Ridge is one day granted an operating permit, that the additional capacity so

afforded would provide only about 30% of the future long-term service area disposal capacity

needs during the period in question. SIRL at 6, citing C00049. Further, argues SIRL, Gere’s

---

 

12

own expert on the issue of need, Mr. Donald Sheffer, conceded that Perry Ridge may never

become operational, but even if it does, the projected capacity of Perry Ridge (14 million in-

place cubic yards) plus the SIRL proposed expansion capacity (21.1 million in-place cubic

yards) would address only 75% of the long-term service area needs, thus resulting in a long-

term disposal capacity shortfall within the service area for the planning period in question.

SIRL at 6, citing C00049.

 

SIRL contends that the application included a detailed sensitivity analysis to verify the

accuracy of the date use, and that the data and information obtained, evaluated analyzed and

reported in the application demonstrated a clear and convincing need for additional long-term

disposal capacity in the service area. SIRL at 7. SIRL further argues that the application

established that the proposed SIRL expansion was necessary to help relieve the projected

capacity shortfall for the planning period in question.

Id.

 

 

SIRL next addresses the testimony of its witness, Mr. Boos, on criterion 1. Mr. Boos’

testimony, asserts SIRL, evidences the fact that he has considerable expertise and experience in

the area of needs assessments, and is well qualified to testify on the issue of need within a

designated service area. SIRL at 8. SIRL contrasts this with Gere’s expert Mr. Sheffer who,

prior to this matter, had never before even testified on the issue of need and has much less

needs experience.

Id.

Given this significant disparity in experience, contends SIRL, Jackson

County was well within its rights to give more weight to the testimony of Mr. Boos. SIRL at

9.

 

SIRL argues that Gere has misstated Mr. Boos’ testimony on when the service area

would run out of capacity, and that Mr. Boos testified that even assuming that Perry Ridge

becomes operational, and even that its service area is identical to the SIRL service area, that

the service area designated by SIRL would still run out of capacity in 2013. SIRL at 9.

However, asserts SIRL, Perry Ridge does not have the same identical service area as SIRL and

that fact was significant to Mr. Boos in arriving at his conclusions.

Id

. SIRL also argues that

the distinct possibility exists that some, if not a significant portion, of Perry Ridge’s capacity

(if ever actually developed and in operation) would be devoted to waste outside the service area

designated by SIRL.

Id

.

 

SIRL argues that Mr. Boos concluded that anywhere from 40 – 50% of the waste

presently being generated within the service area was being exported, and that this fact in and

of itself demonstrates an immediate need for additional service capacity. SIRL at 10. SIRL

contends the Mr. Boos testified that even with the additional capacity SIRL was requesting in

this expansion, a need still exists for the development of additional capacity within the service

area, that it is well documented that the existing facility would run out of air space within a

few years, and that without the SIRL expansion the service area will exhaust its current

permitted operating disposal capacity by the year 2006. SIRL at 10.

 

SIRL argues that Gere grossly misrepresented SIRL’s testimony when it stated “SIRL

admitted that Perry Ridge will be open at 2002 or 2003 at the latest.” SIRL at 11. SIRL

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13

claims the testimony of Mr. Boos was only a conservative assumption, not a statement that

Perry Ridge would be open by 2002 or 2003.

Id

. SIRL asserts even Gere’s own needs’ expert

Mr. Sheffer acknowledged that it is uncertain when, if ever, Perry Ridge will receive its

operating permit and become operational. SIRL at 12. Further, SIRL asserts that Gere’s

needs expert also acknowledged that he did not know when, if ever, the Marion Ridge facility

would be operational.

Id.

   

 

SIRL asserts that there is a good, if not compelling, reason to believe these two

facilities may not be operational for another ten years. SIRL argues that, in any event, the law

does not require the county to accept as true the unsubstantiated opinions about speculative

landfill projects, when they may never come to fruition. SIRL at 12.

 

SIRL asserts that the facts elicited from Gere’s own witness undeniably establish that

the need for more capacity within the SIRL service area exists in the foreseeable future. SIRL

at 13. Gere’s witness Mr. Sheffer conceded that Perry Ridge had only recently received its

development permit, had not even applied for an operating permit, and that he did not know

when, if ever, Perry Ridge would become operational.

Id

. SIRL contends that Mr. Sheffer

also readily conceded that he did not know what volume of waste that Perry Ridge will receive

from portions of its service area common to that of SIRL. SIRL at 14.

 

SIRL stresses that Gere’s entire argument on the issue of needs is solely premised on a

very tenuous house of cards, namely that the proposed Perry Ridge facility (if it ever becomes

operational) will only accept waste from the SIRL service area. SIRL at 15. Most

importantly, argues SIRL, Mr. Sheffer admits that if SIRL runs out of capacity by 2006 and

Perry Ridge is not online by then, the designated service area will have no available disposal

capacity in 2006.

Id

. SIRL concludes that requesting an expansion in 2002 to accommodate a

need that may very well arise as early as 2006 is totally reasonable

. Id

.

 

Next, SIRL asserts that the record shows that Perry Ridge is burdened with significant

legal impediments to its ultimate operability that do not show any sign of resolution in the near

future. SIRL at 15. Specifically, the public comment of William Poiter reveals that he and his

family hold the mineral estates under the Perry Ridge site and intend to take all legal action

necessary to defend those rights. SIRL at 16. Further, SIRL contends that it is evident from

the record that the Perry Ridge facility initially commenced its quest for siting and permit

approval in 1992, and that they did not even receive a developmental permit until nearly a

decade later.

Id

. SIRL maintains that Mr

. Poiter’s comment reveals he does not intend to sell

his rights to the estate, and intends to take legal action in the future to enforce and preserve

their rights. In addition, asserts SIRL, Gere’s witness conceded that the proposed Perry Ridge

facility had not even applied for an operating permit. SIRL at 18. For these reason, asserts

SIRL, it is no wonder that Jackson County chose to substantially dismiss the viability of the

Perry Ride site in making its determination. SIRL at 17.

 

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14

SIRL contends that Gere’s reliance on two proposed facilities that may never become

operational to meet the long term needs of the service area is misleading and misplaced. SIRL

at 17.

 

SIRL maintains that when all relevant segments of the Jackson County Solid Waste

Management Plan are read as a whole, and in the proper context, that the need for the SIRL

expansion is clearly demonstrated. SIRL at 18. SIRL stated that the 1996 Regional Plan

recognizes that a need for additional airspace in the Greater Egypt Region could arise as early

as 2003, and that Gere disingenuously ignores those additional portion of the 1996 plan that

expressly endorse the expansion of existing landfills in the area. SIRL at 19.

 

SIRL notes that Franklin County and Perry County planners who participated in the

regional planning process specifically earmarked and designated SIRL as a facility to be used

to address their county’s long-term disposal needs. SIRL at 21. In fact, SIRL states, the Perry

County portion of the Greater Egypt Plan specifically contemplates the expansion of the SIRL

facility to address the long-term needs of both Perry County and the region.

Id

. According to

SIRL, each and every county within the Greater Egypt Regional Planning area specifically

anticipated and endorsed the necessary future expansion of SIRL when the plan was first

approved in 1996. SIRL at 22. SIRL asserts that the Jackson County’s 2001 five-year update

to its solid waste management plan provides that the future expansion of the SIRL landfill

should be supported to serve the county’s long-term needs. SIRL at 24.

 

SIRLS asserts that the case law cited by Gere is irrelevant due to the overwhelming

evidence that SIRL will reach capacity on or around 2006, but that even if capacity is not

reached by that time, that Gere has offered no legal authority to overturn the Jackson County

decision to grant siting approval. SIRL at 25. SIRL argues that Gere’s proposed rule – that

any landfill with greater than a ten-year capacity must fail criterion – is almost childish in its

oversimplification and is not representative of the broad range of landfill life expectancies that

have passed muster. SIRL at 26. SIRL argues that the cases Gere cites are based upon

express finds made by the local decision maker that sufficient existing capacity was available to

meet the near- and long-term needs, but that in the present case, the local decision found the

opposite – that sufficient capacity was not available.

Id

.

 

SIRL concludes that the record developed in this siting proceeding overwhelmingly

supports the determination of Jackson County that the applicant satisfied each criterion set forth

in Section 39.2(a) of the Act. SIRL at 29.

 

Gere’s Reply

 

In reply, Gere asserts that Mr. Boos admitted on the witness stand that the application

missed many operating landfills located within 25 miles of the perimeter of SIRL’s identified

service area, and that SIRL’s assertion that only four such facilities exist was proven untrue.

Reply at 5, citing C02514. Gere highlights that Perry Ridge is located within the service area

and, because it has received developmental permitting from the Agency, considered an existing

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15

landfill as required by law. Reply at 5. Gere disputes SIRL’s assertion that Perry Ridge has

made ‘little substantive progress’ towards becoming operational in light of the fact that Perry

Ridge has received a developmental permit. Reply at 6.

 

Gere asserts that its witness Mr. Sheffer did not state that there will be a dire need for

the SIRL expansion as early as 2006. Reply at 6. Gere contends that Mr. Sheffer’s testimony

also considered the availability of facilities outside of the SIRL service area and that such

facilities must be considered available to handle the service area’s disposal capacity. Reply at

7. Gere argues that SIRL’s facility could not possibly have been considered an active proposal

under the terms of the Solid Waste Management Plan when it was drafted. Reply at 8.

 

Gere contends that the need issue is not a ‘battle of experts’ as argued by the

respondents, but that SIRL’s own evidence proves no need exists here. Reply at 9. For

example, asserts Gere, SIRL’s expert Mr. Boos forgot to include several landfills that were

located within 25 miles of the boundary of SIRL’s proposed service area even though all such

facilities were required to been accounted for in the needs analysis according to Jackson

County’s siting ordinance. Reply at 10. Gere argues that the facts presented to Jackson

County reveal that there is still in excess of a minimum of 11 years of lead-time before there is

even the possibility of a disposal capacity shortfall, and a need for the proposed expansion does

not exist.

Id

.

 

Gere asserts that the respondents ignored the impact that landfills located within 25

miles of SIRL’s service area will have upon the necessity of the proposed expansion. Reply at

11. Gere questions why the Cottonwood Hills Landfill and the West End facility would not be

available to absorb much, if not all of the waste, even if Perry Ridge’s capacity is not

available.

Id

. Gere asserts that even if Perry Ridge is not open by the time SIRL closes,

landfill capacity in surrounding areas is more than sufficient to assure the waste needs of the

service area will be met for literally decades to come. Reply at 12.

 

Gere maintains that the earliest date of capacity deficiency in the service area is 2013,

and although some speculation exists in the record that, if certain things such as Perry Ridge

not continuing with the operating permit process don’t happen tragedies could result, there

were no facts or competent evidence submitted to support that speculation. Reply at 12. Gere

contends that Mr. Boo’s testified that it is a reasonable assumption that Perry Ridge would take

the waste produced in SIRL’s service area if SIRL’s expansion was not granted. Reply at 13,

citing C02493. Gere contends that since the service area already imports up to half of its

generated waste, there is not reason why those facilities could handle SIRL’s additional

capacity.

Id

.

 

Gere next contends that the respondents addressed the need issue as one concerning the

interests of Jackson County in obtaining cheap disposal capacity for its own residents, and

other benefits that would follow from being a host community, and that these are convenience

positions that do not meet the appropriate standard. Reply at 14.

 

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16

Gere argues that the public comment of Mr. Poiter has no bearing on the Perry Ridge

facility because the materials provided by Poiter pertain to a different landfill and fail to

support any basis for concluding that Perry Ridge might be subject to the same issues. Reply

at 15. Further, Gere argues that the public comment does not raise any issues pertaining to

whether the mineral estate’s owners would have any right to shut down the landfill proposal as

it was being constructed or prior to its opening for business.

Id

. Gere continues that the

respondents’ contention that the Perry Ridge Landfill was discredited on the basis of a bald

assertion of a non-lawyer that he will stop the opening of that landfill “barely even rises to the

level of silly.” Reply at 16.

 

Finally, Gere contends that the admission that 40-50% of the waste in the service area

does not demonstrate an immediate need for additional service capacity, but rather

demonstrates that only 50-60% need be dealt with by SIRL, Perry Ridge Landfill or any other

alternate. Reply 16-17.

 

 

Discussion

 

The application submitted by SIRL defines the primary service area as including

Jackson County and the following additional counties of southern Illinois: Alexander,

Franklin, Hardin, Johnson, Jefferson, Massac, Perry, Pope, Pulaski, Randolph, Union,

Williamson and Washington. C00039. Also included are the Missouri counties of Cape

Girardeau, Perry, Scott, St. Francois, St. Genevieve and the Kentucky counties of Ballard and

McCracken.

Id

. All of these 21 counties have previously utilized SIRL for their waste

disposal needs. The Board has previously held that the applicant defines its own service area.

CDT Landfill, PCB 96-60 (Mar. 5, 1998).

 

Section 39.2(a)(i) of the Act provides that local siting approval shall only be granted if

the facility is necessary to accommodate the waste needs for the area it is intended to serve.

The applicant is not required to show absolute necessity in order to satisfy criterion (i).

Fairview Area Citizens 198 Ill. App. 3d at 551,

citing

Tate v. PCB, 188 Ill. App. 3d 994, 544

N.E.2d 1176 (4th Dist. 1989); Clutts v. Beasley, 185 Ill. App. 3d 543, 541 N.E.2d 844 (5th

Dist. 1989). The Third District Appellate Court has construed “necessary” as a degree of

requirement or essentiality, and found that a landfill must be shown to be reasonably required

by the waste needs of the area intended to be served, taking into consideration the waste

production of the area and the waste disposal capability, along with any other relevant factors.

Waste Management, Inc., v. PCB, 122 Ill.App.3d 639, 644; 461 N.E.2d 542 (3rd Dist. 1984).

 

After careful review of the record, the Board finds that there is evidence in the record

to support Jackson County’s decision on the need criterion, and therefore, the decision is not

against the manifest weight of the evidence. SIRL’s expert Mr. Boos testified that SIRL

expansion is necessary to accommodate the waste needs of the service area in part because the

area is currently a net exporter of waste; SIRL is the only operating facility in the service area;

and that without expansion, the service area will consume its permitted operating capacity by

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17

2006. Although Gere interprets the information used by Mr. Boos differently, Jackson

County’s reliance on Mr. Boos’ testimony is not unreasonable, especially in light of his greater

level of experience in need analysis than Gere’s expert witness.

 

Further, although landfill developments have been proposed in the nearby counties, the

status of each of these developments is uncertain, and not one of the proposed landfills has

been granted an operational permit. Although a local decision-making unit may consider the

availability of proposed facilities in its needs analysis (

See

Waste Mangement v. PCB, 175 Ill.

App. 3d 1023, 530 N.E.2d 682 (Nov. 7, 1988), the local unit is not prohibited from

considering the speculative nature of the proposed facilities, and in reaching their decision on

need, may have legitimately weighed the testimony of both experts that Perry Ridge and the

other proposed landfills may never become operational.

 

The record contains evidence suggesting potential legal impediments to the ultimate

operability of Perry Ridge as the holders of the mineral estates under the proposed site have

expressed an intention to fight the permitting of the landfill. The public comment asserting the

rights and intention of the mineral estates holder clearly identifies Perry Ridge as the landfill

where mineral estates are located, and could have been properly considered by Jackson County

as part of the decision-making process. Additionally, evidence exists in the record that even if

Perry Ridge does become operational, the combined projected capacities of Perry Ridge and

the SIRL expansion would still result in a long-term disposal capacity shortfall for the service

area.

 

The applicant is not required to show absolute necessity in order to satisfy criterion (i),

but must show the facility is reasonably required by the waste needs of the area intended to be

served, taking into consideration the waste production of the area and the waste disposal

capability, along with any other relevant factors. The Board finds that SIRL has shown the

proposed expansion to be reasonably required by the waste needs of the area intended to be

served.

 

Accordingly, Jackson County’s decision that SIRL met the need criterion is not against

the manifest weight of the evidence, and is affirmed.

 

This opinion constitutes the Board’s findings of fact and conclusions of law.

  

CONCLUSION

  

The Board finds that Jackson County’s decision on criterion (i) was not against the

manifest weight of the evidence. Jackson County is affirmed, and the Board upholds its

decision to grant local siting to SIRL.

 

IT IS SO ORDERED.

 

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18

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002;

see also

35 Ill.

Adm. Code 101.300(d)(2), 101.906, 102.706. Illinois Supreme Court Rule 335 establishes

filing requirements that apply when the Illinois Appellate Court, by statute, directly reviews

administrative orders. 172 Ill. 2d R. 335. The Board’s procedural rules provide that motions

for the Board to reconsider or modify its final orders may be filed with the Board within 35

days after the order is received. 35 Ill. Adm. Code 101.520;

see also

35 Ill. Adm. Code

101.902, 102.700, 102.702.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above opinion and order on September 5, 2002, by a vote of 7-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board