ILLINOIS POLLUTION CONTROL BOARD

September 15,

1982

MILO AND/OR BRADEN M~

LAMBERT

d/b/a

LAMBERT CONSTRUCTION COT,

Petitioners,

PCB 82—47

SALINE COUNTY BOARD,

)

Respondent.

MS. NINA T. WILLIAMS, ATTORNEY AT LAW, APPEARED ON BEHALF OF

PETITIONER:

MR. DAVID HAUPTMAN, STATE~SATTORNEY SALINE COUNTY,

APPEARED ON

BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by

I.

Goodman):

This matter is before the Board upon the April

21,

1982

appeal by Milo and/or Braden M.

Lambert d/b/a Lambert Construction

Company (Lambert),

from the March 19,

1982 written decision of

the Saline County Board (Saline County) denying site approval

for a proposed solid waste management site pursuant to Section

39.2 of the Illinois Environmental Protection Act (Act).

On

April

29, 1982 the Board ordered Saline County to prepare and

file the record on appeaL

Hearing was held before the Illinois

Pollution Control Board

(Board) on July 23,

1982 at which there

was no citizen testimony.

This case is among the first group of appeals to the Board

pursuant to a new statute which divides citing authority for the

landfills in the state between local officials, here represented

by Saline County, and the statewide interest represented by the

Illinois Environmental Protection Agency

(Agency).

Prior to

Agency approval of a proposed landfill,

the landfill site must

be approved by local officials solely pursuant to six criteria

contained in Section 39.2(a)

of the Act.

On January 19,

1982 a request for site approval was filed

on behalf of Lambert for sanitary landfill

#3 before the Saline

County Board.

Included with the transmittal

letter and request

were plans of the proposed site and the Agency permit application.

Saline County held the required public hearing on the proposed

landfill site on February

2,

1982.

The hearing was apparently

48-167

---

recorded

on

tape

and

later

transcribed

A

consulting

engineer

for

Lambert

made

a

short

presentation

and

presented

maps

showing

the

location

of

the

proposed

site.

The

hearing

was

them

opened

for

public

comment

and

the

reading

into

the

record

of

a

number

of

letters

apparently from citizens objecting to the

landfill

site

At

the end

ol

the r~rnq tte~

Wd~~

eorr~

additional

testimony

on hehait

ol: Lamtert an~some questions

:r:rom

the

participants

at

the hearing.

At a

regularly scheduled meetIng of the Board of

Commissioners

of Saline

County on March

18r

1982,

the Board of

Commissioners

voted not

to

grant siting approval for the proposed

site

stating

“The

Board

of Commissioners~votednot to accept the

proposed

site

due

to

it

not

beinc

centrally

located

to

meet

the

needs

of

all

the

people

of

Saline

County,,

The

Saline

County

Board

feels

Lambert

has

met

all

other

recuired

Agency

standards

and

have

no

other

objections

except

the

aforementioned

location.”

The

denial

of

siting

approval

was

transmitted

to

the

Agency

on

March

19,

1982

along

with

copies

of

letters

of

citizens

of

the.

County

concerned

with

the

location

of the proposed site.

On April

21,

1982,

Lambert

filed

his

petition for hearing and

review

before

the

Board.

Lambert

alleges

that Saline County erred in its

decision

to

deny

siting approval because their

sole oh ection,

the

proposed

site was

not centrally located in the area, did not

fall within

any of

the six criteria mandated

in

the

Act~, Lambert

further

alleges

that since Saline County had specifically

found

no

other

objection,

the

site

should

have

been

approved and

requested

the

Board

order

site

approval to be deemed approved

At

the

hearing

before

the

Board,

testimony presented

concerning

procedures

indi-

cated

that

the Saline County bard voted to

deny

site

approval

upon

the

recommendation of the

Landfill

Committee

of

the

County

Board,

AdditIonal

testimony

by

Bill

Endsley,

Chairman

of

the

Saline

County

Board,

.indioates

that

there

was

discussion

of

a

motion

or

resolution

rearding

~‘other

requirement

standards

of

the

EPA~

possibly referencing the six criteria

mandated

by

the

Act.

That discussion apparently did

not

result

in

any other

motion

or resolution

(R,

17)~

In response to

cross—examination

concerning

his knowledge of the six criteria arid whether

or not

the objection to the landfill

site

was

based

on any

of

these

criteria,

Mr.,

Endsiey

said that he

stood

by what was

contained

in the

denial letter sent to the Agency.

Gary Bond, Chairman of the Landfill Committee,

testified

that

the Landfill Committee held a meeting concerning

the

proposed

landfill site

sometime

before

the

Saline

County

Board

meeting

and decided to recommend not to accept the

proposed

site

(R.

24).,

Under cross examination,

Mr. Bond

acknowledged

that he

was aware of the new law at the time the

committee

made the

decision

(H.

26).,

Other than the opening

and closing

argument,

the

foregoing is basically the record

presented

to

the Board on

appeai~

48~188

---

3

This

case presents the Board with a number of problems with

respect to review of the Saline County Decision.

The first

problem is the form of the decision itself.

It appears to be

simple and straight forward; site approval

is denied as the site

is not centrally located in the area to meet the needs of all

the people of Saline County.

However, that is not one of the

reasons that the legislature has allowed Saline County authority

to consider.

The six criteria to be considered by the local

authorities

in review of a siting approval petition under Section

39.2 of the Act are as follows:

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,

welfare will be protected;

3.

the facility is located so as to minimize incom-

area and to minimize the effect on the value of

the surrounding property;

4.

the facility is located outside the boundary of

the 100 year flood plain as determined by the

Illinois Department of Transportation,

or the

site is flood-proofed to meet the standards and

requirements of the Illinois Department of

Transportation and is approved by that Department;

5.

the plan of operations for the facility is designed

fire, spills,

or other operational accidents;

and

6.

the traffic patterns to or from the facility is

flows.

In addition,

the section also states that “the County Board...

shall approve the site location suitability for such new regional

pollution control facility only in accordance with the following

criteria:”

(emphasis added).

Nowhere in the six criteria does

the statute address meeting the needs of all the people of the

county by being centrally located.

Nowhere in the record is

there any indication how or why Saline County came to the con-

clusion concerning the central location.

Certainly some of the

citizen testimony and letters of objection addressed the lack

of convenience of the location, but there were more objections

concerning road conditions in the County.

There were additional

objections concerning litter on county roads,

conditions at

Lambert’s present landfill, the possibility of contaminated

water and the fact that the citizens had to pay to dump refuse

at the landfill.

Since the Board has insufficient information

4

to interpret the mode of rejection it finds that the stated reason

for denial of siting approval is beyond the authority of Saline

County and is therefore improper.

However, the same lack of in-

formation in the record that causes the Board to reject Saline

County’s reason for denying site approval also causes the Board

to be unable to deem the site approved.

Given the rural nature of the county and the informal char-

acter of the public hearing, Lambert did a reasonably good job

of addressing the six criteria.

However, from a purely technical

standpoint,

Lambert failed to prove that he had met the conditions

of criterion

#4, i.e., that the proposed facility is located out-

side the boundary of the 100-year flood plain as determined by

the Illinois Department of Transportation (IDOT), or that the site

is flood—proofed to meet the standards and requirements of IDOT

and

is approved by that Department.

The letter from Lambert’s

consulting engineer to IDOT requests sign—off or issuance of a

permit for the landfill project stating that it is petitioning

the Agency for a permit to develop and operate the site.

Nowhere

in the letter does it allude to Section 39.2 of the Act or the

County Board approval situation.

In its response, IDOT merely

notes that no permit is required from IDOT since the project

“while within the 100—year flood plain,

is not within the 100-year

floodway, therefore a permit is not required for this activity.”

Although this

is a new statute which may result in confusion with

respect to precisely what is required, the Board finds that the

evidence presented by Lambert with respect to criterion #4 is

inadequate.

Beyond the technical deficiency noted above, the Board has

great concern as to whether or not Saline County could have or

intended to deny citing approval

for legitimate reasons within

the purview of the six criteria and merely utilized the central

location pronouncement as a convenient summation of their objec-

tions.

The statement in the letter of denial that “the Saline

County Board feels Lambert has met all other required EPA stan-

dards and have no other objections except the aforementioned

location” does not alleviate the Board’s concern.

If we presume

that the required EPA standards refers to the six criteria of

the Act,

a fact that is not at all clear,

the evidence indicates

that motion which Saline County voted upon did not contain that

language.

Indeed, if Saline County considers “not centrally

located” as encompassing all of its objections, the statement

that Lambert has met all other objectionable standards becomes

meaningless.

The testimony at the Pollution Control Board hearing by two

members of the Saline’ Board of Commissioners

is likewise not con-

clusive.

Although admitting that they were aware of the six

criteria contained in the Act, both stood by the wording of the

letter denying site approval.

Thus, the Board finds that although

the manner used by Saline County to deny site approval

is inappro-

priate, it is not clear that the intent of the disapproval was

48-170

---

5

not within the six criteria.

The intent of the legislature in

enacting Section 39.2 of the Act was to allow local authorities

the right to review the proposed site

in accordance with the six

criteria and thereafter to grant or deny site approval.

The Board

will not circumvent the intent of the legislature merely because

the decision of the local authorities

is confusing or inappropriate.

The Board shall therefore remand this matter to Saline County for

correction of the technical deficiencies and for further review

consistent with Section 39.2 of the Act.

Saline County’s attention is directed to two previous

Opinions and Orders of the Board on the subject

Waste

Management

of Illinois,

Inc.

v. Board of Supervisors of Tazewell County,

PCB 82—55

(August 5,

1982) and Village of Hanover Park v. County

Board of Du Page, Du Page Forest Preserve District and E & E

Hauling,

Inc.,

PCB 82—69

(August 30 and September 2,

1982).

The Opinions cited address both what exactly the local autho-

rities are to consider under Section 39.2 of the Act and what

is reasonably required in terms of an opinion supporting their

decision.

In particular,

the Board wishes to emphasize that

Section 39.2(e) requires the local officials to specify the

“reasons for the decision, such reasons to be in conformance

with the six criteria~each of which should be separately listed

and discussed.

The Board hereby directs the Clerk of the Board to serve

copies of the Opinions and Orders cited herein on the parties

in this case.

The 120-day decision period is construed as recoin-

mencing upon Saline County’s receipt of this Opinion and Order.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

This matter is hereby remanded to the Saline County Board

for further consideration consistent with the Opinion herein.

IT IS SO ORDERED.

Board Member Don Anderson dissented.

I,

Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby ~ejtify that the above Opinion and Order

was adopted on the

jb’~ day of

__________________,

1982

by a vote of

4.-i

Christan L. Mof,~é)~,Clerk

Illinois Pollut~*~/ControlBoard

48-171