ILLINOIS POLLUTION CONTROL BOARD

January 26,

1984

TOWN OF OTTAWA,

Petitioner,

PCB 83—135

LASALLE COUNTY BOARD

and STATES

LANE)

)

IMPROVEMENT

CORPORATION,

Respondents.

VILLAGE OF NAPLATE,

)

Potitioner,

v.

)

PCB 83—136

LASALLE COUNTY

BOARD

and STATES LAND

)

IMPROVEMENT CORPORATION,

Respondents.

MR. TIMOTHY

J.

CREEDON

III,

OF

HOFFMAN,

MUELLER

&

CREEDON,

APPEARED ON BEHALF OF PETITIONER TOWN OF OTTAWA.

MR.

ROBERT

N. ESCHBACH, OF HOWARTER

& ESCHBACH, APPEARED ON

BEHALF OF PETITIONER VILLAGE OF NAPLATE,

MR. LOUIS

J. PERONA,

ESQUIRE, APPEARED ON BEHALF

OF LASALLE

COUNTY BOARD.

MR. JAMES

I.

RUBIN, OF BUTLER,

RUBIN,

NEWCOMER

&

SALTARELLI,

APPEARED ON

BEHALF

OF RESPONDENT

STATES

LAND IMPROVEMENT

CORPORATION.

OPINION

AND

ORDER OF THE BOARD

(by J. Marlin):

Pursuant to the Environmental Protection Act (Act)

(Ill.

Rev.

Stat,

1981,

ch,

111—½,

par.

1001 et

~!~J’

specifically

Section 40.1,

(Ill,

Rev.

Stat,

1982,

Supp,,

ch,

111—½, par.

1040.1), the Town of Ottawa

(Town)

and the Village of Naplate

56-87

---

(Village)

on September 16,

1983,

separately

petitioned to the

Illinois Pollution Control

Board

(Board),

appealing the

decision

of the LaSalle County

Board~s

(County)

approval of site

location

suitability to applicant,

States

Land

Improvement Corporation

(States Land)

for construction

of a new

regional pollution

control facility to

accept, handle, and

dispose of municipal and

non—hazardous special

waste

in unincorporated

Ottawa Township.

Nine County hearings

were held, generating

transcripts

totalling

over 1900

pages and exhibits,

(Cited as R.).

The proposed

site is composed

of

38

acres,

25 of which may

be suitable

for landfilling,

It

is an

old

strip-mined area with

spoil piles

on the property.

This site

has

a projected useful

life of 11½

years.

The expansion

of

the

existing landfill of

States

Land,

½ mile away, was limited due to the

condemnation

proceedings

for a county highway,

The existing

landfill was to

close

approximately at

the end of December,

1983,

The proposed

site

is intended to replace the existing site.

Other uses

in the

area

include the Carus Chemical landfill,

the closed

Brockman

landfill,

railroad tracks and a quarry pit.

In

its resolution of August 15,

1983,

the County approved

the site location suitability

with

conditions

A

through N,

inclusive,

and

on

September 12,

1983, withdrew the

prior

resolution

and adopted a second resolution which deleted

conditions N and

N.

The Town and Village each

brought a third

party appeal

to

the Board pursuant to Section

40,1(b) and

petitioned

for a hearing within

35 days.

These

cases were

consolidated

for hearing by order

of the Board on

its

own motion

dated

September

23,

1983.

The County Clerk filed

with the Board

a certified

record of the proceedings below on

October

14,

1983.

The Board held a

hearing

on November 30,

1983

in

accordance with

Section

40,1(a)

and Section

32,

The legal issues to be decided before the

Board will

be

grouped

under three headings:

JURISDICTION

AND WAIVER,

FUNDAMENTAL

FAIRNESS,

and MANIFEST WEIGHT following

a more

detailed

discussion of proceedings

at

the

county level.

THE RECORD DEVELOPED BY

THE

COUNTY

The legislature has

mandated in Section

39,2(a)

that the

County

or local governing

body consider the six

criteria

when

deciding to

grant or deny site location suitability

of any new

regional

pollution control

facility

and give

reasons

therefor:

~‘TheCounty Board,, ,shall

approve the

site

location suit-

ability for

such new regional pollution control

facility only in

accordance with

following criteria:

56-88

---

—3--

(I)

the facility is necessary to accommodate the waste

needs of the area it

is intended to serve;

(II)

the facility is

so designed,

located and proposed to be

operated that the public health,

will be protected;

(III)

the facility is located

to as

to minimize

property.

(IV)

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.

(V)

the plan of operations for the facility is designed

to

spills, or other operational accidents;

and

(VI)

‘the traffic patterns to or from the facility are so

flows.

Criterion

#1 was addressed by the testimony of David

Beck,

a

technical specialist

for Andrews Environmental Engineering,

Inc.

and a former Illinois Environmental Protection Agency

(Agency)

landfill inspector,

He cited approximately

6 landfills that were

either outside the general service area of the proposed site or

were within but would not accept additonal

and/or special wastes.

(R34—40)

His testimony is buttressed by that of others:

Richard

Kuhn

(R.

357), Robert Miller

(R.

324),

John Roberts

(R.

290),

Chris Inudsen

(R.

391,

395) and by letters

from the landfills

stating that they would not accept additional and/or special

wastes

(R.

34—40).

Criterion *2 will

be addressed

later.

Michael Crowley,

a real estate appraiser, testified as to

criterion

#3.

He described the property surrounding the proposed

site,

including railroad tracks to the

south

and east,

a quarry,

the Carus landfill to the west,

further

west the existing States

Land site and the Brockman site,

and wooded hillsides and ravines

to the north

(R.

274),

Crowley also gave his expert opinion that

the proposed use of the site was compatible with Criterion

#3

(R.

274).

Additionally, he opined

that there

would be no detrimentel

effect on market values of neighboring properties

(R.

277).

Evidence as to criterion

#4

was addressed by Andrew

Rathsack,

who testified that the proposed site was outside the

56-89

---

—4—

100 year

flood plain

(R,

600),

Additionally,

Dames

& Moore

(D

&

N), the

experts

hired by the County stated that

they

had no

concern as to

criterion

#4

(R.

1303),

As

to

criterion

#5,

minimizing

danger

to the surroundIng

area,

D & N had no

concern

(R.

1303),

It was

stipulated that

organic

solvents,

which are usually flammable,

would

not

be

landfilled.

Heavy

equipment also would

be

on hand for any

contingencies.

Dayal Saran and Steven

Martin,

employees of D &

N,

were concerned

about

the danger of

explosion

from hydrogen

cyanide gas evolved

from one generator’s

waste sludge containing

cyanide.

(R,

1285).

Later,

it

was

shown

by letters from the City

of Spring Valley

and

from their

consultant

that the D

& N report

was based on a sample

from 1979,

Since

then, cyanide has been

eliminated

from the sludge

(R 1717,

1718),

Evidence showed that

the plan

was designed to minimize

the

danger to

the surrounding

area

-

Beck

also testified as

to

criterion #6.

After

a study of

traffic

in the

area,

he

was

of

the

opinion

that

there

would

be

no

significant

change

or

impact

on

existing

traffic

flow

(R.

43).

Paul DeGroot,

president of States Land,

felt that

since

the

proposed

site was

replacing their existing site

the

traffic count

would remain

the

same

(R.

904),

In

condemnation

proceedings

involving some

of the property of States

Land, the

County gave

States Land

an access to the proposed site,

which was needed due,

to the new County highway

bisecting States

Land property

(R.

958).

This

included an agreement to allow

heavy

equipment to

cross the

highway,

Vincent Dettore, the

Highway

Commissioner of

Ottawa

Township, testified that this access

point

was

muddy on

rainy

days

and

further,

that

because

the

view

of

approaching

motorists

was

blocked

by a hill,

the

entrance

should

be

moved

(R.

1087).

Upon

cross—examination,

Dettore

admitted

that States Land

cleans the

road voluntarily

and that mud

tracking

was minimal

(R.

1097).

A prior

witness stated

that when heavy

equipment was

being moved,

large warning signs were posted on the

highway in

both directions.

Criterion #2

concerns the public health,

safety

and welfare.

The hydrogeology

expert retained by States Land,

Rauf

Piskin,

testified that

the facility would meet criterion

#2

(R

175).

He

also

made the

following

suggestions:

that

4

monitoring

wells

be

installed

CR.

175);

that

the

installation

of

the

liner

be

verified

by

permeability

and

compaction

tests

(R.

172);

that a 10

foot

clay

liner

be

placed

where

the

coal

seam is

exposed over the

St.

Peter

sandstone

CR.

170),

He

agreed

with

Andrews’

civil

engineer

that combination

gas—leachate vents

be used

to

facilitate the

release of degradation gases and

to siphon off any

leachate if the need

arose

(R,

793-4),

56-90

---

—5—

The hydrogeology experts of D

& N questioned Piskin,

it

is

the opinion of D

& N that field permeability tests should be

performed

on

the liner and cover

(R.

768) but they agreed that

all

that

is required by the Agency is laboratory tests

(R.

774),

They

also

recommended

that

as

an

alternative

to

field

testing,

a

minimum

thickness

of

2

feet

of

controlled

fill

should

be

placed

on the liner bottom and on the sides where the shale

is exposed

(R.

1306).

D

& N originally recommended that the upper

foot of

the

10 foot liner be disked and recompacted

(R.

774).

There is a

difference of expert opinion here,

As to a leachate collection

system,

D & M agreed that

it is not needed at this site

(R.

1320-1).

Also,

it is not required by law in this situation.

Dames

& Moore agreed with the use of combination gas-leachate

vents

(B.

1323).

The County, through 0

& N

(R.

1337-1339), and

States Land

(B.

1683)

agree that some

type

of additive,

such as

lime

and/or compost, will he used to enhance vegetative growth on

the final cover.

States Land will also supply as—built plans

to

the County as suggested by D

& N

(B. 1683).

Eric Zimmerman,

a geotechnical engineer, testified for the

Town.

As his testimony provides the primary basis for

petit,Ioner!s manifest weight arguments, it will be discussed in

detail in that section of this Opinion.

It was his opinion that

criterion

*2 was not met because the proposed site was deficient

JURISDICTION

AND WAiVER

Section 39.2(e)

states

that “(ilf there

is no final action

by the county board or governing body

of

the

municipality

within

120 days after the filing of

the

request for site approval,

the

applicant may deem the request approved.”

Initially, the 120 day

time period was extended by stipulation of both parties to expire

on August 17,

1983.

It is alleged by the Town and Village that

the County

was

without jurisdiction

to delete conditions N and N

because the 120 days which were extended by stipulation had

expired,

and alternatively, even if the County had the

jurisdiction, that its reconsideration was fundamentally unfair

and resulted in undue prejudice.

(See Fundamental Fairness).

Similarly, Section 40.1(b)

provides that the petition be heard

“in

accordance

with

the

terms

of

Section

40,1(a),

Section

40.1(a) provides

that

“(if there

if no final action by the

Pollution Control Board within

90 days,

petitioner may deem the

site location approved.,.

Read together, the 120 day time period

is construed as

a waiver provision for the benefit of the

applicant

If the time period elapsed with no final action by the

Board, the site location would

be deemed approved....

il~eofHanoverPark v. ~

Board of

Pae, et al., PCB

8269r

rev’d on other

~

F

& E Hauling, Inc,,et al.

V.

Pollution Control

loardL

116 Iii.

App,.

3d 586,

451 NE 570

(2nd

Dist.

1983).

56-91

---

—6—

final

action

period

and in conjunction with a

40(b)

grant of RCRA

permit

by the Agency,

Section (40)(a)

has also

been construed as

a

waiver

provision

for

the

benefit

of

the

petitioner.

PCB

83—135/136

Order,

September

23, 1983,

citing Alliance

for

a

Safe

Environment,

et al.

v.

Akron

Land Corp.

etal,,

PCB 80—184,

October 30,1980.

Herein, the

120 day period for final

action by the County in

Section 39.2

likewise is construed as

a waiver provision inuring

to the benefit

of the applicant to protect its

rights.

FUNDAMENTAL

FAIRNESS

What will

be analyzed

here are the

allegations of the

Village and Town

that because of procedural

improprieties and ex

parte contacts they were

denied statutory

fundamental

fairness.

As stated under JURISDICTION AND WAIVER

in this Opinion,

the

Board

construes the 120 day time period as

a waiver provision for

the benefit of the applicant,

This is not a rigid

time period;

therefore,

there

is no fundamental unfairness inherent in

39.2(e)

as applied to petitioners Ottowa and Naplate.

A hearing was held on November

30,

1983 pursuant

to

Section

40.1(b),

which provides that the Board follow Section 40.1(a)

procedures.

Inter alia, subsection

(a) states the following:

“...

such hearing shall he based exclusively on the record

before the County,,.;

no new or additional evidence in support of or in

opposition to any

...

decision of the county board

...

shall be

heard by the Board,”

ndditionally, Section 40,1(a) provides that the

Board

consider “the

fundamental fairness of the procedures used by the

county board

...

in reaching its decision,”

It

is alleged that the applicant’s resolution

received more

consideration than the resolutions of the petitioners but

no

meaningful evidence was presented to substantiate this

allegation.

The main contention by petitioners

is

that

due

to

ex

p~

contacts, their right to

a

fundamentally fair

proceeding

was

prejudiced.

The

facts underlying

this

contention

are

threefold:

(1)

that

on the day of reconsideration

by the County

a tel~phoneconversation took place between the

president of the

appli~ant

to the County chairman, initiated by the applicant;

(2)

that

because of this conversation, a letter from

the

attorney

for

the

applicant was delivered to the County;

(3)

that

because

of

this

letter

the

County

deleted

two

conditions.

Ex

~jrte

contacts

are

t ‘ose

contacts that take place without

notice

and

outside

the

reco~between one in a decision—making role and

a

party

before

that

person

or

body.

In ~

uli,

the County held

additional public meetings after the hearing but before the site

appr ~al decision with the applicant

in attendance.

There was no

56-92

---

—7—

effective

public

notice

that

the

siting

issue

would

he

discussed.

Because

of

the

lack

of

effective

public

notice

and

the

resulting

inability of the other party to participate

decision—making process, the Court deemed them ex parte contacts.

Herein, the telephone call by applicant was short and for

the purpose of obtaining procedural information.

It was not an

ex ~

contact.

The letter to the County was not ex parte

because

all

parties

were

furnished with a

copy

and

there

was

effective public notice that the County would hold a public

meeting.

Counsel

for applicant, by distributing copies of the

letter to the petitioners,

also gave notice,

albeit short notice,

of his intentions

and his contact with the decision—maker.

All

the information, including differing proposed resolutions, were

already before the County.

As there were no ex ~

contacts,

there is no need

to discuss whether they

so

irrevocably

tainted

the County’s

decision—making process so as to render the decision

fundamentally unfair,

~~li1~

citing

PATCO

v,Federal

Labor

Relations ~

685

F,

2d 547 at 564—65

(D.

C. Cir.

1982).

Additionally,

the

petitioners

were

given

the

chance

for

argument

at the September

12 meeting, which they

declined.

Since the Town

and Village failed to meet their burden of going forward at the

Board hearing with enough evidence to show ex ~

contacts,

there

is no finding of fundamental unfairness,

The petitioners allege that there was fundamental unfairness

in that,

even if there was jurisdiction, the

County could not

reconsider the August 15 resolution and delete conditions N

& N

on a subsequent date,

This point was discussed in E

&

E Hauling,

wherein the Court compared the County function in SB 172

(P.A,

82-783)

hearings

as both adjudicative

—

in the

decision to

approve or deny

with reasons

—

and legislative

—

in

the holding

of a public hearing to amass information,

Id.

at 13,

slip op.

Since the imposition of conditions

is

a legislative function,

so

is the deletion.

Id, at

14,

slip op.

Because of this

distinction, herein the County Board could reconsider their prior

resolution and amend/delete under their rulemaking powers.

Id. at

18,:

slip

op.,

citing the Illinois Supreme Court

in

Monsanto

v,

Pollu~42~controlB2~rd67 Ill,

2d 276

(1977),

MANIFEST WEIGHT

Section 40,1(b)

in conjunction with

Section 40.1(a) provides

that the burden of proof as to each of the criteria is on the

petitioner and that the Pollution Control Board hearing be based

exclusively on the record before the County.

The standard of

evidence to be used by this Board is the manifest weight of the

evidence standard——that the decisions of the County are to be

reversed only if they are against the manifest weight of the

evidence.

City of

East Peoria, et al,,

v. Pollution Control

Board,

etal.,

117

Ill.

App.

3d 673,

452 N.E.

2d 1378

(3rd Dist

56-93

---

1983)

citing

Landfill,

Inc.,

V.

Pollut

ontro

rd

74 Ill.

2d 541, 387 N.E.

2d 258

(1978)

and

Mathersv.

Pollution

Control

Board, 107

Ill.

App.

3d

729,

438

N.E.

2d

213

(1982),

Accord,

E

&L

ulinL~nc., citing,

inter

~

Wells Mfg.Co.

v.

pollution Control

Board,

73 Ill

2d 226

(1978),

Criteria

#1,

3,

4,

5,

and

6

were

all

decided

on

the

record

in

favor of

States

Land

by

the County.

Those

decisions

were

not

seriously

challenged

in

this

appeal,

and

after

reviewing

the record,

the

Board does

not

find

them

to

be

against

the

manifest

weight of the

evidence.

The

evidence concerning Criterion

#2 is that most

contested

by Ottawa

and Naplate.

The Zimmerman testimony regarding

Criterion

#2 was that the proposed site was deficient in

that

(1)

plans

for final

cover

should

be

submitted

(R.

1119);

(2)

rainwater

should

be

collected

and

sent

away

for

treatment

rather

than

being

allowed

to

mix

with

the

fill

(B.

1120);

(3)

state

of

the art

requires

a

leachate

collection

system

(B.

1121);

(4) the

stated ion exchange capacity was too high because rather than

100

availability

of

the

liner,

only

3

to

4

of

the

liner would

be

available for

attenuation

(B.

1115);

(5)

the

combination

gas/leachate system

would

not

work

(B.

1136);

and

(6)

that

leachate

could contaminate the

New

Richmond

aquifer

and

subsequently

the

drinking

water

supplies

by

well

pipes

acting

as

conduits.

(B,

1136).

On

cross

examination

it

was

shown that

zimmerman had

visited

the

site

only

once,

the

morning of

the

testimony

(B.

1179);

that

he

was

aware

that

the

ion

exchange

capacity

calculations

took

into

account

the

worst

case

(R,

1194).

Other potential problems were addressed during the

hearings

relating to the number of area wells and whether there were

timbers

and

logs

buried

on

site,

If

the

timbers/logs

were

present, they might act as conduits for leachate migration

(which

might be further accelerated by decomposition of the wood),

The

testimony

was

inconclusive

as

to

the

presence

of

timbers/logs

where

2

former site owners disagreed with each other,

(B.

1521,

1667—8,

1672),

Their

former

crane

operator

agreed

with

one

former

owner

in

that

he

never

buried

any

logs

(B.

1674),

The

testimony

of

one

former

owner

advocating

the

presence

of

logs was

weakened by

cross—examination

(B.

1537,

1542—3),

It

is

not

up

to

the

Board

to

reweigh

the

evidence,

only

to

consider

the

decision

in

light of

the

manifest

weight

standard.

~~an!~ment

of

~

PCB

82—55,

rev’d

on

other

~

~

E

st

Peoria

et

a

1,

v,

PCB,

et al,,

No.

82—648,

(3d

Dist,,

1982).

The

testimony

as to

the

wells was

inconclusive.

Based

on

the

testimony

as

to

the

site,

conditions

(a-I)

inclusive

were

added

to

the

approval

of

the

site,

Condition

(i)

requires

that

the

sandstone

test

boring to

be

insulated

by a 10 foot berm

or

be

covered

with the

liner.

Additionally, condition

(1)

requires

that the Contingency

Plan

for

Detection

of Pollutant

Migration

be followed,

The

County

56-94

---

—9—

found

in

favor

of

States

Land

as

to

criterion

#2.

The

Board

finds that the decision of the County was not against

the

manifest

weight of the evidence,

Finally,

the

petitioners

ask

for

reversal

of the

findings

of the

County

because

of

an

alleged

failure

to

include specific

written

findings

of

fact

pursuant

to

Section

39.2(e).

An appellate

court

has stated that

“the

County

Board

need

only

indicate

which

of

the criteria,

in

its

view,

have

or

have

not

been met.”

E

& E

at

616,

Although

the

Board

would

continue to

prefer

to see more detailed

reasons

for

the

County’s

decision,

the

Board

finds

that the County

has

complied,

albeit

minimally,

with

the

standard

enunciated

in

E&Ej~3~n,

This Opinion constitutes the findings of fact

and

conclusions of law of the Board in this matter,

Upon

the

review

of

the

September

12,

1983,

decision

of

the

County of

LaSalle conditionally

approving

the

application

of

States Land Improvement Corporation

as

to

site

location

suitability,

it

is

the

Order

of

the

Pollution

Control

Board

that

the

decision of the

LaSalle

County

Board

be

affirmed,

IT IS SO ORDERED,

Chairman

Jacob

0,

Dumelle

dissented,

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board, hereby certify that the above Opinion

and Order

was

adopted

on

the

~j~~1ay

of

~

,

1984

by

a

vote

of

~

Illinois

Pollution

Control

Board

56-95