ILLINOIS POLLUTION CONTROL BOARD
March 14, 1986
McHENRY COUNTY LANDFILL, INC.,
Petitioner,
v.
)
PCB 85—192
COUNTY BOARD OF McHENRY
COUNTY, ILLINOIS,
Respondent,
and
ARTHUR T. McINTOSH & CO.,
VILLAGE OF LAKEWOOD, VILLAGE
OF HUNTLEY, HUNTLEY FIRE PROTECTION
DISTRICT, LANDFILL EMERGENCY
ACTION COMMITTEE (LEAC) and
MCHENRY COUNTY DEFENDERS,
Respondent—Objectors.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon a November 15, 1985
Petition to Review and Hearing to Contest the October 15, 1985
decision of the McHenry County Board (County) filed by McHenry
County Landfill, Inc. (Landfill) which denied Landfill site
location suitability approval for a new regional pollution
control facility. The Board, on September 20, 1985 remanded
PCB 85—56 (involving an earlier County denial of site location
suitability for the landfill at issue here) to the County
directing it to apply the proper standard of proof to Landfill’s
application for site suitability approval. The County denied
Landfill’s application for a second time on October 15, 1985, and
it is this decision Landfill is appealing.
On November 21, 1985, Objector Arthur T. McIntosh & Co.
(McIntosh) filed a cross—appeal in this proceeding with a Motion
to Consolidate this proceeding with the Board’s earlier
proceeding of PCB 85—56. Objector Village of Huntley (Huntley)
filed a Motion to Dismiss and Deny Petition for Review on
November 21, 1985. The Motion to Consolidate and Motion to
Dismiss were denied on December 5, 1985. On November 22, 1985,
Objector Village of Lakewood (Lakewood) filed a response to
Landfill’s petition for review which adopts all the objections,
motions, pleadings, cross—appeal and arguments of the other
Objectors. Landfill filed a response to these motions on
—2—
December 2, 1985. On December 20, 1985, Objector McHenry County
Defenders, Objector Huntley Fire Protection District and Objector
Landfill Emergency Action Committee filed appearances and notices
of cross—appeals. (To avoid confusion, the Respondent—Objectors
will be collectively referred to as “Objectors” unless otherwise
indicated.) On February 27, 1986, Landfill filed Briefs and a
Motion to “deem approved” by operation of law Landfill’s
application for site location suitability approval. On March 3,
1986 Allan Hamilton requested leave to file a statement which is
hereby granted pursuant to Section 32 of the Act.
THE FEBRUARY 27 MOTION
On February 27, 1986, Landfill filed a motion requesting the
Board to enter an order declaring that the site location
suitability approval of the proposed sanitary landfill has been
deemed granted by operation of law, to order the Illinois
Environmental Protection Agency (Agency) to process its permit
application for that landfill, and to dismiss this proceeding as
moot. Landfill argues that it is entitled to this relief due to
defective notice of the Board’s hearing in PCB 85—56 and due to
the failure of the County to take final action within 120 days.
On March 3, 1986, the County filed a motion to strike Landfill’s
motion in that it was not timely filed, that facts which are not
part of the record are presented and that the motion causes undue
surprise which cannot be cured given the statutory decision
deadline. Other Objectors filed responses to Landfill’s motion
on March 3, 1986, also arguing untimeliness as well as waiver and
estoppel, among other things.
In its motion Landfill points out that Section 40.1(a) of
the Illinois Environmental Protection Act (Act) requires a 21—day
notice of hearing before the Board. However, notice was
published on July 5, 1985 for the July 25, 1985 hearing in PCB
85—56. Therefore, Landfill continues, only 20—day notice was
published, and since the 21—day notice requirement is
jurisdictional, the hearing was invalid and the siting request
may be properly deemed approved since the Board failed to hold a
proper hearing and render a final decision within the 120—day
statutory time period.
The hearing in PCB 85—56 was scheduled by the hearing
officer by order dated June 27, 1985, and was mailed on that
date. The order was received by the Board on June 28, 1985, and
a letter was sent to the Woodstock Daily Sentinel that same day
requesting publication as soon as possible. Unfortunately,
notice was not published until July 5, 1985, seven days after the
request was mailed, and 20 days prior to hearing. Landfill never
objected to that notice during the course of the PCB 85—56
proceeding. However, during the course of this proceeding
Landfill filed a complaint for declaratory judgment in the
circuit court seeking a judgment that its application had been
—3—
granted by operation of law and enjoining the Board from
proceeding on the basis of defective notice. The court, however,
dismissed the action for failure to exhaust administrative
remedies. Landfill then presented these issues to the Board in
its February 27, 1986, motion.
Section 40.1(a) of the Act does require 21-day notice of a
public hearing. Further, in Illinois Power Company v. Illinois
Pollution Control Board, 484 N.E.2d 898 (4th Dist. 1985) the
court held the statutory notice requirement to be a
jurisdictional matter. The court also stated that the Board
“cannot ignore the mandatory requirements of notice in an effort
to evade the responsibility to complete a hearing within the
required time.” Furthermore, the court in Kane County Defenders,
Inc. v. Pollution Control Board, 487 N.E.2d 743 (2nd Dist. 1985)
extended the Illinois Power rationale which was based upon a
determination under Section 40(a) of the Act to a proceeding
under Section 39.2 of the Act. The court held that the failure
of an applicant seeking approval of site location suitability “to
publish appropriate newspaper notice
...
rendered the county
hearing invalid.” Both of these cases are, however,
distinguishable from this proceeding.
In Illinois Power the court’s reversal of the Board’s
decision was based upon a construction of the word “shall” in
Section 40(a) of the Act which states that “the Board shall give
21 day notice.” Citing People v.
Youngbej,
82 111. 2d 556, 562,
413 N.E.2d 416, 419 (1980) for the proposition that “the use of
the word ‘shall’ is regarded as indicative of a mandatory
intent,” the court concludes that the notice provision of Section
40(a) is mandatory. However, the Supreme Court in Young~~went
on to state that “this is not an inflexible rule; the statute may
be interpreted as permissive, depending upon the context of the
provision and the intent of the drafters. Village of Park Forest
v. Fagan (1976), 64 Ill. 2d 264, 268, 1 Ill. Dec. 42, 356 N.E.2d
42.” (id. at 419—420). Only after a detailed analysis of the
context of the provision and its legislative history did the
Supreme Court conclude that the word “shall” was mandatory in
that case.
Therefore, if the Illinois Power court was correct in its
determination that the word “shall” is mandatory in Section
40(a), it must have reasoned that the context of the provision
and the intent of the drafters indicate that it is to be so. It
is difficult to determine what the reasoning was from the
opinion. However, one indication of the reasoning used is that
the court in Illinois Power noted that a permit issued by
operation of law under Section 40(a) of the Act “simply protects
the party seeking review from charges of operation without a
permit.” If that party otherwise violates the Act or Board
regulations, an enforcement action can be brought. Since the
initial permitting decision is based upon a determination of
—4—
whether the applicant has demonstrated that it will operate in
compliance with the Act and Board regulations and enforcement
actions can be brought against even a deemed—issued permittee if
he does not so operate his facility, there is an identity of
regulations that must be compiled with regardless of “deemed—
issued” status. However, where, as is requested here, site
location suitability approval is granted by operation of law, the
local unit of government loses its ability to review site
location suitability through no fault of its own, and
furthermore, there will never be an opportunity to examine some
of the issues which were to be considered by the governmental
unit. For example, local governmental units are given the power
to determine whether “the facility is necessary to accommodate
the waste needs of the area it is intended to serve.” (Section
39..2(a)(l) of the Act). However, there is no analogous provision
on which an enforcement action could be brought: i.e. it is not a
violation of the Act or Board regulations to operate a landfill
which is not necessary to accommodate the waste needs of the
area. It is difficult to believe that it was the intent of the
drafters of Section 40.1(a) of the Act that a violation of that
notice provision would forever preclude review of such important
issues regarding landfill location. The very basis of the
adoption of Section 39.2 of the Act was to grant local units of
government some oversight of the landfill siting process.
Landfill’s request runs counter to that intent.
Furthermore, unlike the situation in Illinois Power, the
notice requirements were fully complied with in this case albeit
one day late. In Illinois Power, the Board failed to give notice
at all to those who have requested notice of enforcement
proceedings (though there are no such persons) or to appropriate
members of the legislature, and never published newspaper notice,
all as required by Section 40(a) of the Act. Thus, under the
Illinois Power facts, all the court necessarily held is that the
requirement of notice is mandatory, whereas the 21—day
requirement could be read as directive of what constitutes
satisfactory notice. Viewed in that light a 20—day notice is in
substantial compliance with that directive language. Unlike the
situation in the Illinois Power case, the Board in this instance
did not “ignore the mandatory requirements of notice” nor did it
attempt to “evade the responsibility to complete a hearing within
the required time” as the court found under the Illinois Power
facts. Instead, the Board requested the publication of notice at
a time reasonably calculated to comply with the statutory
mandate, and the lack of 21—day notice resulted from the
inordinate time it took from mailing to publication.
The Kane County case, above, is even more easily
distinguishable. While that case adopted the reasoning of
Illinois Power in the landfill siting arena, it involved Section
39.2 of the Act rather than Section 40.1 which is at issue here
and centered on a notice requirement applicable to the Elgin
—5—
Sanitary District (ESD), the landfill applicant, rather than the
Board. In that case ESD served timely notice of the intent to
file an application for site suitability approval upon the
necessary property owners, but failed to publish notice until one
day prior to the filing of the application (rather than the
required 14 days) and failed to include in that notice the date
the request would be filed as required by statute. Instead it
published that notice nine days after the request was filed. The
Kane County court found the Illinois Power reasoning to apply
“even more strongly in the present case” in that “the County
hearing, which presents the only opportunity for public comment
on the proposed site, is the most critical stage of the landfill
site review process.” It found further support for that view “in
the statutory notice requirements themselves, which are more
demanding at the County phase of the process.”
As in Illinois
Power,
the facts in Kane Cou~~demonstrated
an almost total disregard of the notice provisions. No notice of
the date of filing was given until after filing occurred and
publication of the original notice occurred one day before filing
rather than 14. Thus, unlike the facts of this case, there was
no substantial compliance with the notice requirements.
Furthermore, the consequences of a failure to comply with the
notice requirements are much different. As a result of the Kane
County decision, ESD must reapply for site approval: the full
landfill site suitability review process will still take place.
Further, had ESD realized the defect in notice, it could simply
have withdrawn its request, republished notice and refiled.
However, if the Board were to decide that Landfill can now deem
its application approved, the local review process would be
circumvented, and even if the defective notice had been
discovered immediately, it would have been difficult or
impossible for the hearing to be rescheduled and renoticed in
sufficient time to reach an informed decision within the
statutory decision period. Finally, this proceeding does not
involve “the most critical stage of the landfill site review
process” nor are the notice requirements nearly as demanding as
those of the County stage. For these reasons, the Board finds
that the twenty day notice of hearing was adequate.
Landfill further argues that Ill. Rev. Stat. 1983, ch. 100,
par. 3 requires notice to be published “for three successive
weeks since Section 40.1(a) of the Act fails to specify the
number of notices intended.” Since a single notice was published
in this case, Landfill contends that the notice was inadequate.
Paragraph three states:
Whenever notice is required by law, or order
of court, and the number of publications is
not specified, it shall be intended that the
same be published for three successive weeks.
—6—
The Illinois Supreme Court addressed this issue in Crocher
v. Abel, 348 Ill. 269, 180 N.E. 852 (1932), where the Court was
faced with an annexation statute requiring that Petitioner give
at least fifteen days notice of hearing on a petition. Notice
was published only once, which was argued to be insufficient
since the number of publications was unspecified and publication
must be for three successive weeks. The Court held that the
notice was in compliance with the statute. Similarly, in Central
Illinois Public Service Co. v. City of Taylorville, 307 Ill. 311,
138 N.E. 623, where the statute required the publication of
notice “at least twenty days prior to such election,” the court
held that the publication of one notice at least twenty days
prior to the election was sufficient. Again, in People v.
Wein~~,
327 Ill. 158, N.E. 407; where the statute required the
publication of notice “at least twenty days prior to such
meeting,” publication of one notice was deemed sufficient
compliance with the statute. Furthermore, Landfill’s assertion
that one should look outside the subject statute for procedural
guidance, runs counter to the General Assembly’s expressed intent
in Section 39.2(g) of the Act which states that:
The siting approval, procedures, criteria and
appeal procedures provided for in this Act for
new regional control facilities shall be the
exclusive siting procedures and rules and
appeal procedures for such facilities.
The General Assembly did not intend for procedures contained in
another act to apply to local siting approval cases. For these
reasons the Board finds that the requirement for publication for
three successive weeks is inapplicable, and that the single
notice is in compliance with the statute.
Landfill’s final argument in its February 27, 1986 motion is
that the County failed to take final action within its statutory
time period for decision, and that approval may, therefore, be
deemed granted by operation of law. Landfill claims that neither
of the County’s actions on March 20, 1985 or October 15, 1985
were final actions as contemplated by Section 39.2(e) of the Act
in that it has failed to provide the Board with a proper subject
for review. In support of this contention it cites the Board’s
September 20, 1985 Opinion in PCB 85—56 which stated that
“McHenry County applied the incorrect standard of proof for site
approval, and the Board has no proper subject for review before
it.” Further, upon remand the County adopted a new order on
October 15, 1985, stating:
We affirmatively state that we in fact did use
the preponderance standard in our original
findings and order and acknowledge that our
counsel’s statement in that regard in our
brief to the PCB was a correct statement of
the standard we actually applied.
—7—
The original order of March 20, 1985 be and is
hereby reaffirmed and is attached hereto and
made a part hereof.
In that original order, the County had stated that “the
petitioner is required to show that the record supports all six
criteria by the manifest weight of the evidence.” From this
Landfill argues that the County’s October 15, 1985, action was
null and void since it is contrary to the remand order and again
is based on the manifest weight of the evidence, and again
provides no proper subject for review.
The Board rejects these arguments and finds that the March
20 and the October 15 County orders were final actions taken
within the statutory time period of 120 days. In the March 20
order the County in fact denied site location suitability
approval, although upon review of that action the Board
determined that it had done so improperly.
The acceptance of Landfill’s reasoning would place the Board
in an untenable position. Under the reasoning of Board of
Education of Minooj~~j~ls (1979), 75 Ill. App. 3d 335, 394
N.E.2d 69, the Board necessarily remanded the initial County
decision such that an adequate record for review could be
developed. However, upon remand to develop that record Landfill
argues that the County’s statutory decision period was violated
and that approval was granted by operation of law, thus
precluding the development of an adequate record. Furthermore,
even if the Board were to have found Minooka inapposite because
of the statutory decision period and, therefore, decided the
issues itself, it would have necessarily substituted its judgment
for that of the County which would be an improper usurpation of
the County’s site location suitability approval authority, a
function not delegated to the Board by the Act. (See Landfill,
Inc. v. IPCB (1978), 387 N.E.2d 258, 264). Thus, the Board finds
that the County’s March 20, 1985 was a final action.
Furthermore, its October 15, 1985 action was not simply an
affirmation of the improper March 20 order. While it did
reaffirm the findings, the October 15 order clearly indicated
that those findings were based upon the proper standard of proof
(regardless of the County’s contention concerning the March 20
findings). Therefore, the Board finds that the County did not
fail to take final action within the statutory decision period.
For these reasons, Landfill’s February 27, 1986 motion is
hereby denied.
—8—
FUNDAMENTAL FAIRNESS
In reviewing the decision of a local unit of government
regarding site location suitability pursuant to Section 40.1 of
the Act, the Board must consider the fundamental fairness of the
procedures used in reaching that decision. Several issues
regarding fundamental fairness have been raised by parties
including:
1. Application of improper standard of proof or burden of
persuasion;
2. Use of improper standards without notice;
3. Improper limitations on production of evidence and
consideration of motions; and
4. Open Meetings Act violations.
However, each of these issues were raised and argued in PCB 85—56
and no new facts or arguments have been raised regarding
fundamental fairness in this proceeding. Since these issues were
fully considered and decided in the Board’s September 20, 1985
Order in PCB 85—56, the Board will not discuss them again except
to note that it has found the procedures used to be fundamentally
fair.
CRITERIA ANALYSIS
Under Section 39.2(a) of the Act, local authorities are to
consider six criteria when reviewing an application for site
suitability approval for a new regional pollution control
facility. The six criteria are:
1. the facility is necessary to accommodate the waste needs
of the area it is intended to serve;
2. the facility is so designed, located and proposed to be
operated that the public health, safety and welfare will
be protected;
3. the facility is located so as to minimize
incompatibility with the character of the surrounding
area and 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;
—9—
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.
The proposed site for Landfill’s new regional pollution
control facility is located on the eastern side of Route 47
approximately 1 3/4 miles north of the Village of Huntley. The
site comprises approximately 113 acres of farmland and is bounded
on the south by the South Branch of the Kishwaukee Creek and on
the east by a tributary to the South Branch of the Kishwaukee
Creek.
In reviewing the decision of the County, the Board utilizes
the “manifest weight of the evidence” standard. Manifest weight
of the evidence is that which is the clearly evident, plain and
indisputable weight of the evidence, and in order for a finding
to be contrary to the manifest weight of evidence, the opposite
conclusion must be clearly apparent, Drogos v. Village of
Bensenville, 100 Ill. App. 3d 48 (1981): City of Palos Heights v.
Packel, 121 Ill. App. 2d 63 (1970). The Board cannot reverse the
findings and conclusions of the County simply because the Board
would have weighed the evidence differently. The County decided
that Landfill had satisfied Criteria Nos. 1, 3 and 5 and had not
satisfied Criteria Nos. 2, 4 and 6. For the following reasons,
the Board affirms the County’s decision on Criteria Nos. 1, 2, 3,
5, 6 and reverses the County’s decision on Criteria No. 4.
Criterion No. 1
Landfill presented the testimony of Mr. James Andrews, who
prepared Landfill’s application for siting approval. He
testified that the life expectancy of the existing landfill
servicing McHenry County was 4 to 5 years based on the remaining
space available and the amount currently being received by the
existing landfill. (R. 43). This contradicted an earlier
opinion of Mr. Andrews in which he stated that the life
expectancy of the existing landfill was 13 to 15 years. However,
this earlier opinion was based on certain projected changes in
operation and a waste receipt of approximately 700 cubic yards
per day. This waste volume has since increased to 1300 to 1500
cubic yards per day. (R. 249). Also, one of the projected
changes in operation, the installation of a high density baler,
had not occurred. Based on these changed conditions and the
observations by Mr. Andrews of the available space remaining at
the existing landfill, Mr. Andrews concluded that the life
expectancy of the existing landfill is 4 to 5 years rather than
13 to 15 years.
—10--
Objectors presented the testimony of several witnesses, one
of whom was Mr. Gerald DeMers who was the project engineer and
principle author of the McHenry County Total Waste Management
Study which estimated the life expectancy of the existing
landfill to be approximately six years. (R. 1911). Also,
McHenry County presented a report by the Northeastern Illinois
Planning Commission which estimated that the region had an
average of 8.2 years remaining landfill life. (County Ex. 13).
Mr. DeMers also testified that the lead time for establishing new
landfills can exceed five years and that 80 to 85 percent of the
waste generated in McHenry County is currently being disposed of
in the county’s existing site (R. 1976, 1982). Other witnesses
of the Objectors testified that there will be no need for a new
landfill until 1992—1994 and that the existing facility has six
years of remaining air space (R. 2683, 2895).
Based on the manifest weight standard, the Board affirms the
County’s decision that Criterion No. 1 had been satisfied. The
County could have reasonably concluded that for approximately 4
to 8 years the waste needs of Mcflenry County can be satisfied by
the existing landfill. Furthermore, the County could have
reasonably concluded that the lead time needed to bring a new
landfill to operational status can exceed five years. The Second
District Appellate Court has defined the term “necessary” to mean
that the applicant does not have to show that a proposed facility
is necessary in absolute terms, but only that the proposed
facility is “expedient” or “reasonably convenient” vis—a—vis the
area’s waste needs. E & E Hauling, Inc. v. Pollution Control
Board, 116 Ill. App. 3d 586, 451 N.E.2d 555 (1983), citing Foster
& Kleiser v. Zoning_Board~t
5,
38 Ill. App 3d 50, 3~7
N.E.2d 493 (1976) and Illinois Bell Tele~honeCo. v. Fox, 402
Ill. 617, 85 N.E.2d 43 (1949). The Third District Appellate
Court has further defined “necessary” to mean that the applicant
must show that the proposed 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 capabilities, along with other relevant factors. Waste
M~~gementof Illinois, Inc. v. Illinois Pollution Control Board,
122 Ill. App. 3d 639, 461 N.E.2d. 542 (1984). The Second
District later found that “expedient” connoted an element of
urgency, and that “reasonable convenience” also requires a
petitioner to show more than convenience. Waste Management of
Illinois, Inc. v. The Pollution Control Board, 123 Ill. App. 3d
1015, 463 N.E.2d 969(l984). Regar~Iess, using the reasoning of
both appellate courts, the Board finds that the County could
reasonably conclude that the proposed landfill was necessary to
accommodate the waste needs of the area it is intended to
serve. The County is, therefore, affirmed in that determination.
—11—
Criterion No. 2
Extensive testimony was presented by both sides regarding
this criterion. Landfill presented the testimony of Mr. Andrews,
Mr. Van Silver and Dr. Rauf Piskin who concluded that Criterion
No. 2 had been satisfied. In contrast, the Objectors presented
the testimony of Dr. Pratap Singh, Dr. Yaron Sternberg and Dr.
Musa Qutub who concluded that Criterion No. 2 had not been
satisfied.
In attempting to reconcile the conflicting testimony, the
Board notes that both Mr. Andrews and Dr. Piskin testified that
portions of the design and operation of the proposed landfill
were not the best that could have been presented. (R. 210—211,
242—243, 1136—1146). Although Dr. Piskin asserted that the
design satisfied Criterion No. 2, he recommended various changes
regarding design and operating procedures more restrictive than
those contained in the application and Mr. Andrews concurred with
these recommendations. (R. 211).
Additional testimony was presented by witnesses for the
Objectors who testified that additional information was needed on
the subsurface soil conditions at the proposed site before an
evaluation could be made. (R. 2036—2039 & 2487). This would be
done by taking additional soil borings and constructing
additional monitoring wells. Also, testimony was presented on
the flooding potential of the proposed site. Landowners in the
vicinity of the proposed site testified that the site has the
potential to flood. (RI. 6—11, 80_82)*. Other citizens voiced a
general concernthat the proposed site could flood. (RI. 115—
116, 131—133 & 221—225). This testimony was buttressed by the
independent calculations of Mr. Robert Layer who concluded that
the proposed site has the potential to flood.
There was testimony presented on the permeability of the
soils, the composition of the soils and the existence of
subsurface groundwater which challenged the adequacy of the
evaluation of the soil conditions of the proposed site.
Moreover, extensive testimony was presented at the hearings which
indicated the potential of the site to flood. Based on the
manifest weight standard, the Board affirms the County’s decision
that Criterion No. 2 had not been satisfied.
*
On January 30, 1985, there was a hearing at which citizens
could voice their concerns over the proposed landfill. This
hearing was distinct from the other hearings held in this
proceeding and will be cited as “RI.” to avoid confusion.
—12—
Criterion No. 3
Landfill presented the testimony of Mr. Thomas Peters who
prepared an appraisal report on the impacts the proposed landfill
would have in a 9—square mile area (study area) surrounding the
proposed site. Mr. Peters’ testified that the study area was
primarily agricultural in character; that the agricultural zoning
in the study area has the lowest density and lowest average
valuation of all county zoning classifications; that most of the
properties in the study area with farmsteads have improvements
reflecting a substantial amount of deferred maintenance and
deterioration; that the study area is located near, but just
beyond, a potentially prominent growth neighborhood in McHenry
County; and that there is little potential for most of the study
area to receive sewer and water services from municipalities.
Based on these and other factors, Mr. Peters testified that
Criterion No. 3 had been satisfied. (R. 1179—1196).
Objectors presented the testimony of several witnesses who
criticized Mr. Peters’ report. The major criticisms were that
the study area excluded the impact on residential homes located
to the north and east of the proposed site and that a landfill is
incompatible with any other use of property (R. 1757, 1792).
Additional testimony was presented regarding the growth trend in
McHenry County which indicated increased residential development
(R. 1560—1566). Testimony was also presented that the landfill
would reduce property values in the study area (R. 2951).
Mr. Peters testified that the study area encompassed by his
appraisal report was originally designed to include the area
within a one—mile radius of the landfill. Mr. Peters, upon
approval by Landfill, enlarged the study area so that township
sections would not be split in half or in quarters. Using this
process, the study area was enlarged 1/2 of a mile to the south
and west, 7/50 of a mile to the north and no extension to the
east. Two residential subdivisions to the north, Colleen’s Cote
and Andover Acres, and one residential subdivision to the east,
Turnberry, were excluded using this technique. Mr. Peters
testified that the sanitary landfill would have no effect on the
values of property located outside the study area due to their
distance from the landfill (R. 1193).
Objectors presented testimony that differed from Mr. Peters
testimony. Two real estate brokers testified that the study area
of Mr. Peters’ appraisal report excludes the impact of the
proposed landfill on the residential subdivisions located to the
north and to the east of the proposed site. (R. 1566—1571, 1742—
1743, 2316—2320 and 2931—2933). Some Turnberry residents
testified that they can see the proposed landfill (R. 2933).
Landfill proposed to plant trees along Rt. 47 (R. 519). However,
this will not affect the view from the Turnberry subdivision
located to the east of the site. In resolving this conflicting
—13—
testimony, the County could have reasonably concluded that the
impact this proposed landfill will have on the character and
value of the surrounding area was sufficiently minimized in
response to Criterion 3. Thus, based on the manifest weight
standard, the Board affirms the County’s decision that Criterion
No. 3 had been satisfied.
Criterion No. 4
Mr. Andrew Rathsack testified for Landfill on the 100—year
flood plain determination. Landfill requested a determination
from the Illinois Department of Transportation (DOT) that the
proposed site was not within a 100—year flood plain. DOT sent
Landfill a letter dated November 20, 1984 which states in
relevant part:
Inasmuch as the site is located within a rural
area and on a stream with a drainage area of less
than ten square miles, an Illinois Department of
Transportation, Division of Water Resources permit
will not be required for the landfill.
With regard to Section 39.2 of the Illinois
Environmental Protection Act, this letter
constitutes Illinois Department of Transportation
approval upon your receipt of all appropriate
Illinois Environmental Protection Agency
approvals. (Exhibit 3 of Supplement 2 of
Landfill’s application).
Landfill sent another letter to DOT requesting clarification of
this letter. DOT responded in a letter dated January 21, 1985
which essentially restated DOT’s position in the November 20
letter.
The Board has been faced with this issue before. Recently,
the Board in Board of Trustees of Casner Township v. County of
Jefferson, PCB 84—175, April 4, 1985 construed that a letter
identical to the November 20 letter constituted DOT approval
pursuant to Criterion No. 4. The Board reluctantly, and for the
reasons previously articulated in Casner Townshi~and elaborated
upon here, reaches the same finding in the instant matter.
Initially, the Board notes that Criterion No. 4 is clearly
different from the remaining five criteria, each of which
requires that the County weigh evidence as to whether that
criterion has been satisfied by the applicant. Criterion No. 4,
conversely, delegates an authority to DOT. As this Board
previously held in Casner Township, Criterion No. 4 does not, by
its terms, require or allow a County to “second guess” or to
evaluate DOT determinations. Similarly, this Board must also
accept a DOT determination and is not allowed to “socond
—14—
guess.” The immediate issue is, therefore, whether the DOT
letter constitutes approval of DOT according to Criterion No. 4,
and not whether such determination does or does not have merit.
A plain reading of the DOT letter would seem to be that DOT
defers in its determination to the Agency. The Agency does in
fact approve landfill siting, including issues related to
placement of the facility with respect to the floodplain and site
floodproofing. However, the Agency makes its determinations part
of the permitting process, an event which occurs only when and if
the County(or its Section 39.2 equivalent) grants approval.
This constitutes a “catch—22” situation. Namely, the County must
have a DOT determination before reaching its decision, yet such
determination (i.e., the Agency’s surrogate determination) cannot
be made until after the County renders its decision. Thus, under
the seemingly plain reading the County is required to make a
determination on information which it can not receive. This is
an impossible situation, and requires that some reading other
than that which is seemingly plain is demanded of the DOT letter.
The issue therefore reduces to whether there is an alternate
reading of the DOT letter which resolves the above impossible
situation. Assuming arguendo that the DOT letter does not
represent DOT approval according to the conditions of Criterion
No. 4, then every County which receives only the standard DOT
letter would have to disapprove all applications for failure to
meet Criterion No. 4. This clearly is an untenable outcome in
that it overrides any judgments made by the County on the other
five criteria. It is further untenable in that it automatically
frustrates both the goal of local siting review and the ability
to develop any new pollution control facility,. Neither of these
conditions can be reasonably considered to be consistent with the
implied intent of Section 39.2.
Alternatively, there is the consideration that the DOT
letter does represent DOT approval. This situation allows the
County to reach an approval or disapproval decision based on a
weighing of the evidence submitted under the remaining
criteria. Further, the County can give its own evaluation to
such site specific floodplain evidence as may be presented to it
as one of the facets considered relevant to Criterion No. 2.
This circumstance can reasonably be considered to be consistent
with the implied intent of Section 39.2. Therefore, although it
is not pleased with the necessity of doing so, the Board finds
that the only tenable reading of the DOT letter is that the DOT
letter does represent DOT approval pursuant to Criterion No. 4.
For the above reasons, the Board, based on the manifest
weight standard, reverses the County’s decision that Criterion
No. 4 had not been satisfied.
—15--
Criterion No. 5
Mr. James Andrews, testified on the various aspects of the
accident prevention plan, the fire prevention plan, injury
procedure and the responsibilities of the emergency coordinators
(R. 103—110). Objectors contend in their cross—appeals that the
County erred in its decision on Criterion No. 5 arguing that
Landfill’s failure to consult the local fire district which will
assist the on—site operators in implementing the various
prevention plans rendered Landfill’s plans inoperable. The
testimony presented by Landfill shows that the fire prevention
plan relies primarily on on—site equipment and procedures. Also,
the accident prevention plan, injury procedure and emergency
coordinator responsibilities mostly rely on on—site procedures to
minimize the danger to the surrounding area. The Board does not
agree that Landfill’s prevention plans are inoperable and, based
on the manifest weight standard, affirms the County’s decision
that Criterion No. 5 had been satisfied.
Criterion No. 6
Mr. Brian Johnson was the only witness who testified on this
criterion. Mr. Johnson testified that an average of 80 to 85
trucks per day will visit the site, 85 to 90 percent of which
will come from the north (R. 1423). Mr. Johnson proposed various
access improvements to minimize the impact of site—generated
traffic on the existing traffic patterns. These improvements
include a left—turn lane for the southbound lane of Route 47, an
8—foot paved shoulder with a curb and gutter for the northbound
lane of Route 47 prior to entering the site for use as a
deceleration lane and an acceleration area for trucks leaving the
proposed site heading north. (R. 1424—25, 1431 & 1486—1489).
The left—turn lane will enable the remainder of the southbound
traffic to be directed around the trucks waiting to turn into the
proposed site. The 8—foot paved shoulder will be used by trucks
from the south for deceleration prior to turning into the
proposed site. An additional right—turn lane was considered but
was not included in the improvements because Mr. Johnson felt
that the amount of truck traffic from the south did not justify
an additional lane. The acceleration area for trucks traveling
from the proposed site north on Route 47 consists of part roadway
and part shoulder and is designed so that a truck leaving the
proposed site would accelerate in this area prior to merging with
the northbound traffic.
Route 47 is a rolling highway with a 55 mile—per—hour speed
limit (50 mph for trucks) and is a major arterial route servicing
Mdllenry County. (R. 1421—1422). Approximately 10 percent to 12
percent of the vehicles on Route 47 are trucks, a relatively high
percentage of traffic. (R. 1421). Route 47 is also used in the
summer and winter by people traveling to Lake Geneva, WI. (R.
1476). Landfill proposes to construct the various improvements
—16—
to Route 47 to mitigate the impact of site—generated traffic on
existing traffic flows. While Landfill proposed these
improvements to minimize the effect on existing traffic patterns,
the County’s determination that these efforts were insufficient
was reasonable. Moreover, the vast majority of the truck traffic
leaving the site will utilize the acceleration area, thereby
imposing an additional hazard to existing traffic flows as the
trucks merge with the northbound traffic. Thus, based on the
manifest weight standard, the Board affirms the County’s decision
that Criterion No. 6 had not been satisfied.
ORDER
The October 15, 1985 decision of the McHenry County Board
denying site—suitability approval to McHenry County Landfill,
Inc. for a new regional pollution control facility is hereby
affirmed.
IT IS SO ORDERED.
Board Members J. Dumelle, B. Forcade and 3. Anderson
concurred.
Board Member J. T. Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
/~/~ day of 9?6~—t~~-
,
1986 by a vote
of
~.
~
Dorothy M. G~n, Clerk
Illinois Pollution Control Board
