ILLINOIS POLLUTION CONTROL BOARD

August

2,

1984

INDUSTRIAL

SALVAGE, INC~,

)

)

Petitioner,

)

v~

)

PCB 83~173

COUNTY BOARD

OF

MARION,

)

I

Respondents

JOHN D

LACKEY, ESQ~. (LACKEY, WARNER

& SAUER) APPEARED ON

BEHALF OF INDUSTRIAL SALVAGE, PETITIONER;

MICHAEL

R,

JONES, ESQ~ (BRANSON, JONES

& BRANSON) APPEARED

ON

BEHALF OF SHIRLEY WATSON;

JAMES

CREASON,

ESQ~, (ASSISTANT STATE~SATTORNEY) APPEARED

ON

BEHALF OF MARION COUNTY, RESPONDENTS

OPINION AND

ORDER OF THE BOARD

(bye B~Forcade):

This

matter originally came to the Board on a November 21,

1983 petition

by Industrial Salvage,

Inca (~Industrial~)seeking

review of

a

decision by the County Board of Marion (~Marion”)

that denied

site location suitability approval for

Industrial~s

proposed

regional pollution control facility~

In

a

February

22,

1984 Opinion

and Order,

this Board found that the procedures

employed

by Marjon were fundamentally unfair,

for failing to

provide

opportunity for eross~examination,and remanded the

matter to

Marion for further

proceedings~

Marion held an

additional

hearing on April

5,

1984, and on May

8, 1984

again

denied approval of site location suitability for

Industrial~s

facility~ On May 6,

1984,

Industrial filed a

Petition for

Review after remand seeking to reverse teat

decisions

The Board~shearing

was

held July 6, l984~

Briefs

were due

July

18,

1984, but none were filed~

~~s~tlt

of the multiple hearings in this matter,

citations

to the record can be confusing~ For clarity, the Board

will precede

each citation with

an WA”,

~

~

or “D~for

hearings as follows:

=

Original Marion hearing 9/13/83

“B”

=

Original PCB hearing 2/2/84

“C”

=

Marion remand hearing 4/5/84

=

PCB remand hearing 7/6/84

Thus,

a

reference to page

36 of the transcript for the original

Marion

hearing would be ~

36), Petitioner’s Exhibit 9 from

that hearing

would (A~Pet~Ex~9)~

59~233

---

The object

ot

tni~ ‘~i:pu~eis

Industria

~

proc~ai

~o

develop a

40 acre additioc adjacent to their e~ist~rglandt111

facility on

Perrine AvenLe ~n Centra1ia~ Neither the existing

facility

nor the proposad addition would accept hazardus wastes

The

old city l~~Jf!il,vh~L

was

closed

in 97~,

~

~

rU~

and

east

of the proro~ed ~Ut~’n

Induetria~’sexistirg fa~ility

is

to

the

west,

and a laf~~c~ded area without residei ~s or

structures

is

to

cne

~

Indust~iai’s

j

~

~~Jication

was

d~ricA

October

11,

1983

wU

~

~‘~igthat~

1.

The

oro~o~

~.

~

I

po’lution co

1

t

is

not

Lrgently

~~esnar~

at

this

tiiie. to

a

o~ ~ate

the

waste

needs

of

the

area

it is intended t~~e ‘~o

2~

The

fac

~

proposed

to

b~

~ei~i

a

manner

eonsirte~t

U

t~

protection

ot

tie

~ol

i

safety

an3

~lta

e~

The

history

of

tte

~

?rt~s

operation

of

Lis

existing

regional

pollu

in

ccntrol

facility

i

U

te~

numerous

and

continu

~

ol~tions

of

L~P

~.

regu

atons,

No

evidence

war

~t?’

~tcd

by

applican~.

Lc

irdicate

that

the

new

pollutir:

~

crol

faciUty

cUd

Ui

operated

in

a

wan~er

;

Uent

with

E~P~A.reçi~~i~ns.

As more

fully

expU

~~3

i

the

February

22

Icd~

r

this

Board

found

the

pi~c

~

employed

by

Manor

~o

~‘e

tanentally

unfair in

light

o~ th

~c~aalative

due

proc~s

~a

established

ir

r

dr~

r~,

~nc

v

Poll

i~

‘

~-and,

et~ale,

71

Ui

I)

~tU

N0E

2d

Ui

i’~

~randed

the matter

tu

Ma~~

ion

neld

an

addi

n~

~i

c

on

April

5,

1984, at

which

cros~oxamination

and

questionil9

~

~

public

was allowed~

The

ent4re record of the or~qtha)~1er

proceeding

was accepted

~

ev~iaoo

(

~F.

4U

Mcst Ui

witnesses

read

their

~e,nrrco

iy

f~omthe

or~i

~

~ij

and

then

stood for

cross~examination

However,

the

original

tcstirony

was

not

retyped

in

the

sax~uci transcnipt~

ThereLire,

t

is

~ecessary

to refer

to

the

trans~

t

of

the

first

Marion

hoa~LII

to

find

the complete

teatton~

given

by

each

witnss~

the

hearings

Some

aath

i~oa1

~eatimony

was

enLered

~Uj

8,

1984,

Marion

denied site !o~ticnsuitability approval Un th~facility

with the

fo1lowin~Li idings:

1.

The

pcopcaed

rejional

pollution

ccntro

~ac~l

~ty

is

not

necessary

at

ttis

time

to

accommodate

‘~h~

wasLa

needs

of

the

area

it Li intended to ssr~e

2~

The faUiuiL

I: cot proposed to be rper~edin a manner

consistent

a

cc

the

prutection

f

the

pu~ I

health,

safety md

we~f~re

The

history

of

the

u~Ji~anL’s

operation

of

nra

existing

regiona~

polluth

ontrol

facility

mdi

ares

numerous

and

o~n~inuo

colations

of

LiP

~,

req~laLions~

No

evidence

was

~rerinted

by

---

applicant to indicate that the new pollution control

facility would

be operated in

a manner consistent with

Industrial seeks review of that decision here.

There

:Ls

one significant fact which has changed since the

original matter was presented to this Board.

Industrial sub-

mitted a proposal

and application to develop a non-regional

pollution control facility, on the subject 40 acre plot, to

Illinois Environmental Protection Agency (“Agency”)

(C—Ex. 1a)~

On February

9,

1984, the Agency granted Industrial

a

developmental permit for the non-regional facility (C—Ex. 2a)~

If

Industrial does not ultimately receive approval for the

facility as a regional facility, they intend to accept regional

waste only at the existing facility and non-regional waste only

at

the

new facility when and if an operating permit is issued by

the Agency

(C-R.

19,

56).

The Board has reviewed the procedures used by Marion on

remand and finds those procedures fundamentally fair.

Cross-examination and questions from the audience were provided

for and did occur.

Since each witness at the second Marion

hearing read his or her testimony from the first hearing into the

record and then stood for cross-examination on that testimony,

the procedural defects in the original testimony have been cured.

The substantive provisions for County Board consideration

in

regional pollution control facility siting approval matters are

found in Section 39, 2(a)

of the Environmental Protection Act

(~‘Act”)~Only the first two provisions are relevant to this

proceeding,

and

they state:

The county board of the county or the governing

body

of

the

municipality, as determined by paragraph

(c) of Section 39

of this Act,

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 of the area it is intended to serve;

2.

the facility is so designed,

located and proposed to be

operated that the public health,

will be protected;

For each of the criteria in Section 39.2(a)

of the Act, the

petitioner bears the burden of proving to the County Board that

the

proposed facility satisfies the criteria Waste Manageme~

of Illinois,

Inc.,

v.

Illinois Pollution Control Board,

Doc, No.

3—83—0325, 3—83—0339, Cons., Third District, Filed

_______,

inafter

“Waste Management I”); Waste Management of Illinois

District,

May

8,

1984,

(hereinafter “Waste Management II”),

Since

59-235

---

4

this

is

a

civil

matter,

the

burden

of proof

is a preponderance of

the

evidence

~

30

IlL

App.

3d

631,

333 N.E.

2d 50

(1975); Ritenour v,

Police

Board

of

the

ç~~~~hicao,53

Ill.

App.

3d 877,

369

N.E.

2d

135

(1977);

Drezner

v, Civil Service Commission,

398

Ill,

219,

75

N~E. 2d

303

(1947).

A proposition

is proved by a

preponderance

of

the

evidence when it is

more probably true than

not,

Esta~

fRa~en,

79 Ill.

App.

3d

8

(1979).

On reviewing that

decision,

this Board

must affirm the

County

Board

unless

their

decision is

contrary to the manifest

weight

of

the

evidence.

~

Waste

!men~I,

B &

aulin

Inc.

V.

Illinois

~9i

lution

Cont~

Board,

116

111.

App,

3d 586

(1983),

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,

fl~~os

v, Villag~e

Bensen!ille,

100

Ill.

App.

3d

48

(1981);

çj~yg~Pa1osHeightsv.Packel,

121 Ill, App.

2d

63 (1970).

Marion has denied

site location suitability

approval and

that denial

is based

on findings that Industrial

did not satisfy

Criterion No.

1

(need)

and Criterion No.

2

(Public health,

safety, and welfare).

Since Marion did

not make specific

findings on the other

four criteria,

this

Board must presume that

Industrial carried the

burden of proving

its facility satisfied

those criteria,

Since

Industrial must

prove

its facility

satisfied each criteria,

the Marion

decision to deny will not be

set aside unless both

findings are

contrary to the manifest

weight

of

the

evidence,

CRITERION NO,

1

-

NEED

Under

Section

39.2(a)(l),

Marion

was to approve the site

only

if

Industrial carried

its burden

of proving,

“the facility

is

necessary

to accommodate

the waste needs

of the area it is

intended to serve,”

In

E&EHaulin~,

supra,

the

Second District

evaluated

the word

“necessary”;

it

found that absolute necessity

was

too

stringent

a

standard, and

employed terms “expedient” and

“reasonably

convenient” to

describe

the required level of proof.

Shortly

thereafter, the Third District was required to evaluate

“necessary”

in

Wast~~emen~~.

In refusing to follow the

Second

DistrictUi

lead,

the Third District

stated:

However,

we

disgree

with its statement that “necessary”

means

only

“expedient”

or reasonably

convenient.”

The

legislature

used

the

term “necessary”

and somo of its core

meaning,

connoting

a degree of

requirement or essentiality,

must

be

assigned to

that use of the

word,

While we do not

construe

the

language

to mean that landfills must

be shown

to

be

absolutely

necessary,

nevertheless, we

find, that they

must

be

shown

to

be reasonably required

by the waste needs

59-236

---

5

or

the

~a

intended

to be

served, taking into consideration

cho

wathe

production

of the area and the waste disposal

capabi1ities,

along

with

any other

relevant factors.

In

~te

Mana5’enent

II,

the

Second

District was required to re-

evaluate

its

prior

definition

of

“necessary” in ~jj~ulin.

It modif

red

&EF1a~~~

to

hold that

an element of urgency

is

required in

proof

of

need

(Slip

Opinion,

p.

13) and found

Waste

mt~r~a~joment

I

persuasive

(Slip Opinion,

p.

17).

Tha~, for

Industrial

to prevail before this Board, the

clearly

evident,

plain

and indisputable weight of the evidence

must

show

that

the

proposed facility is reasonably required by

the

waste

neod~ of

the area intended to be served taking into

considerattor

the

waste

production of

the area and the waste

disposal

capabilities,

along

with other relevant factors.

With

this

standard

the

evidence must

be

weighed.

Industrial

provided

evidence on three points to establish

need:

(I)

limited

remaining

use

full life of the existing

facility,

(2) waste production

and

disposal capacity in the area,

and

(3) increased transportation costs if facility approval was

denied.

The remai~~iI~g

useful

life of Industria1~sexisting facility

is the least confusing aspect of the record below.

Industrial

accepts

wasta

~redominantly

from a four

county area,

Of the

waste

it

accepLe

85

is from

the Centralia

area,

15

from outside

that

area

A~JI

58).

If all

of that

waste continues

to

go to

the

existing

f~c~Lity

its

expected

life is one to four years

(A—R,

12,

36; B~h

If the

proposed

facility operates as a

non~reg~oaa

ni~.

ity with only regional wastes going to the

existing fa~r1iLythe

expected useful

life of each one is seven

to nine years (B~Pet, Ex, No,

1A,

p.

1).

Only Industrial

provided evidcn~oon remaining useful

life,

There ~s very

little

evidence

in this record on waste

generation and disposal

capacity.

It is

clear that Industrial’s

existing facility receives most of its waste from the Centra.ia

area with smaller amounts from the remainder of the four county

area and insignificant amounts from beyond the four county area

(A~’R. 15,

16,

85; B~R,14,

54),

However,

there was no testimony

regarding the total waste generation of the area or the

disposition of

.raate that does not go to Industrial.

The Board

presumes that if Industrial accepts from 20

to 90

of the wastes

from

eight

municipal

areas

(A—R.

16), that the remaining volume

must

go

to

other

facilities.

Evidence

on

area

waste disposal capacity was brief,

In—

dustr~alprovided two witnesses.

One

witness testified that he

did not know if tne Salem landfill could handle the additional

volume when Industrial

is full, and was told that Mt. Vernon

would not

be

operating

much longer and doubted it could handle

the

additiouL

load,

although he had not done a study on it

(A-R.

16).

The

other

Industrial

witness

testified that Mt. Vernon had

59-237

---

6

a remaining

life

of

three to four months and

Salem had about two

years, both opinions based on what he had read

in the newspapers

and from driving by

(B—R.

60,

64, 65).

One

opponent

to

the

facility testified

that the Mt. Vernon

landfill

was

a

viable

alternative to the

proposed facility

(A-R.

106).

Another

opponent

testified that the

proposed tn—county

landfill

would

be

available

in ample time for

the additional

volume;

this

testimony

was based on a radio

interview with

Centrali&s

city

manager

which the witness

heard the day~ofthe

hearing

(A—h.

91).

On

the

last

point,

Industrial provided

testimony that

if

capacity

was

not~a~ailab1e

at

their location

businesses

would

bear a

substantial

economic burden through

increased transport-

ation

costs

(A-R.

64),

However, some of

Industnia1~susers

that

are

closer

to

the

Salem landfill use

Industrial

because

of

easier

access

(A—h.

52).

Additionally,

Industrial

provided

letters

from

local

industries that, to the extent they

address the

issue,

say a

convenient

“local landfill”

is

a plus to

industry

since

“proper

waste

hauling

and disposal is a major

expense”

(A-Pet.

Ex.

13).

In

addition

to

the above testimony and

exhibits, the

attorneys

at

the Marion hearings recited several

“facts”

not

found

in

the

testimony or exhibits,

Since this

was not

sworn

testimony subject to cross-examination, this

Board has not

considered these “facts.”

In

summary,

the

record shows that two

witnesses

testified

that

the

new

facility

was necessary,

two

witnesses testified

the

facility was not necessary.

All of this

testimony was

qualified

by statements,

such as “we’re told,””we haven’t

done a

study,”I

read

in

the

newspaper,” and I heard on the

radio,” which

tend to

diminish

the

weight

to be given the conclusions

offered

in the

testimony.

The

contention

that the existing

site will

last seven

to

nine

years

if

operated

with

regional

and

non—regional

components

is

we?.

supported

in

the testimony

of the proponent.

Industrial

has

received

a

developmental

permit

for the non-

regional

facility

(C—Ex.

la).

This

fact

strongly supports

Marion~s

view

that

the

regional

facility

is

not

necessary.

There

is

no

direct

evidence

that

the

proposed

tn-county landfill has

any

permit

or

is

even

in

an

advanced

state

of

pre—permit

planning;

nor

is

there

direct

evidence

on.

the

existing capacity

and

life

expectancy

of

the

Salem

and

Mt.

Vernon

landfills.

However,

the

contention

that

tn-county

will

be

ready in

time

and

solve

the

problem

and

the

contention

that Mt.

Vernon and

Salem

are

nearly

full

were

not

rebutted

and

the

Board

must öonsider

them,

The

Board

considered

the

testimony

on

increased

transportation

costs

of

little

value,

Faced

with a similar

situation,

the Second District in

!__teManaementll

stated,

(at

Slip Opinion 18—19):

59-238

---

7

The only other evidence of need cited by petitioner is

contained

in the Lake County Board staff report which stated

that “with greater disposal distances, cost to local

municipalities and unincorporated areas will increase

significantly.”

While this statement if supported by

evidence would be relevant to prove need, petitioner has not

cited nor can we find any specific evidence demonstrating

that the area intended to be served will experience

increased costs if the proposed landfill application is

denied.

We

note that similar generalized statements

concerning

increased costs were recently held insufficient

to establish the need for an expansion of an existing

landfill

facility.

(Waste Management of Illinois,

Inc.v.

Pollution Control Board

(Doc.

Nos.

3-83-0325,

3-83-0339,

Cons.,

Third District filed

______).)

failed to present evidence supporting its statement.

such evidence,

sustain its burden and thus,

disposal capabilities,

along with other factors.

number one Marion is affirmed.

2

In evaluating Criterion No.

2, Marion found:

The facility is not proposed to be operated in a manner

consistent

with the protection of the public health,

safety

and

welfare.

The history of the applicant’s operation of

his existing regional pollution control

facility indicates

numerous

and continuous violations of E.P.A. regulations.

No

evidence

was presented by applicant to indicate that the

new pollution control facility would be operated in a manner

consistent

with E.P.A.

regulations.

The e;vidence

is

undisputed that Industrial has never been found

in violation of environmental regulations by a competent

tribunal; neither has it been charged, taken to court, or

threatened with suit for violation of such regulations

(A—R.

45;

B-R.

37).

While

much of the testimony below, of alleged

59-239

---

8

Industrial

has

never

had its “day in court” to

defend against

those

claims.

In

a

similar

situation,

the United States

District Court for

the Northern District of Illinois addressed a

conflict where the

Illinois

Environmental

Protection

Agency

had

denied an operating

permit

for

a landfill based on

claims

of violation of

environmental regulations by its owner,

~iv.M~z,

511

F.

Supp.

729

(1983).

In

enjoining

such

action,

the Court stated

(i~~

at 742):

The

Agency

also

unquestionably

has

a

legitimate

interest in preventing persons with a prior

history of

violations from operating disposal sites.

The means

by

which this may be accomplished

are clearly set out in the

Act.

Sections

5(b),

30,

31,

32,

and 33 confer broad

investigatory and enforcement powers on

the Board and the

Agency, and Section 33(b)

empowers the Board

to punish

violations

of the Act by revoking permits.

This

existing

scheme allows simple,

fast, and efficient measures to be

taken to preclude and punish violative conduct.

Once such

action has been taken, there is a clearly

established and

adjudicated basis for the denial of future

permits as well.

See

Dixon

v. Love,

supra,

431 U.S.

105,

97 S.Ct,

1723, 52

L,Ed.2d

17T1D77).

However, this prophylactic

interest is

poorly served by the procedures employed by the Agency in

this case, since those procedures permitted

the Agency to

deny a permit to a person who has never

been found by an

administrative or judicial body to have violated any legal

standards regarding waste facilities.

Here

Marion

found

against

Industrial

on

Criterion

No.

2 for

the same reasons and that finding

must be reversed,

Should the

Agency, Marion, or any citizen seek to

enforce compliance by any

entity

with

any

regulation,

this

Board

is

the

competent tribunal

for determining violations

and.

ensuring

future

compliance.

Since the Board affirmed Marion’s

finding on Criterion

No.

I,

the

decision

of

Marion

denying

site

location

suitability

approval

is

affirmed.

This Opinion constitutes the Board’s findings

of fact

and

conclusions of

law

in

this

matter,

ORDER

The

decision

of

the

Marion

County

Bo~rd

denying Industrial

Salvage’s request for Regional Pollution Control Facility site

location suitability approval

is hereby affirmed.

IT

IS SO ORDERED,

59-240

---

9

Board Members

J.

Anderson and J. Theodore Meyer dissented.

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify

that

the above Opinion and Order was adopted

onthe

~-~t

dayof

_,

l984byavoteof

~

Illinois Pollution Control Board

59-241