ILLINOIS POLLUTION CONTROL BOARD

April

7,

1983

WASTE MANAGEMENT OF ILLINOIS, INC.

)

Petitioner,

v.

)

COUNTY BOARD OF WILL COUNTY,

)

PCB 82—141

Respondents,

and

)

BOARD

OF

TRUSTEES

OF

JOLIET

T~NSHIP,

)

VILLAGE

OF

CHANNAHON,

LESLEY

R.

MARR,

)

NORMA

T.

ROURKE,

GISELA

TOPOLSKI,

AND

)

MARTHA C. LEMBCKE,

)

)

Intervenors.

RICHARD

V.

HOUPT

AND

DONALD

J.

MORAN

(PEDERSEN

&

HOUPT)

AND

THOMAS

WILSON

(HERSCHBACK, TRACY,

JOHNSON,

BERTANI

&

WILSON) APPEARED

ON

BERALF OF PETITIONER;

SCOTT NEMANICH

& STEVEN PRODERL, ASSISTANT STATE’S ATTORNEYS,

APPEARED ON BEHALF OF RESPONDENT;

JAMES YORO APPEARED ON BEHALF OF THE INTERVENOR BOARD OF TRUSTEES

OF

JOLIET

T~NSHIPJ

MAYOR

STEVE

RITOFF

PRESENTED

COMMENTS

ON

BEHALF

OF

THE

INTERVENOR

VILLAGE

OF

CHANNAHON;

AND

THE INDIVIDUAL INTERVENORS APPEARED PRO SE.

OPINION AND ORDER OF THE BOARD

(by J. Anderson):

This matter comes before the Pollution Control Board

(Board)

on the December 13,

1982 appeal of Waste Management of Illinois,

Inc.

(Waste Management) of the December 2,

1982 decision of the

County Board of Will County (County or County Board) to deny

regional pollution control facility site location approval

pursuant to SB 172, now S392 of the Act.

The facility in

question is a proposed 110 acre expansion of the ESL Landfill

located in Section 31, Joliet Township.

The ESL landfill (itself

110 acres) currently receives and co—disposes of general, special,

and hazardous wastes, and Waste Management proposes to accept the

same type of wastes for co—disposal

at the expanded site.

52-23

---

Pursuant to the

Board~sOrd

e ber

16,

1982, Will

County filed its

record in thi~mat

iccember 30,

The

Board

held its hearing on

this appeal

c~r

~,

27, 1983 in Joliet.

The hearing officer

granted int~v~

3tus to the following

entities and persons,

in

response

~ns

for leave filed

or

various dates

in

January,

1983k

ic ~

of Trustees of

Joliet

Township, the Village

of Channai

r

Ii, Marr,

Norma

T.Rourke,

Gisela Topolski, and

Martha

C,

Lerrbcke

Briefs were submitted

by

the parties and all

intervenors, prs~ar

to a briefing schedule

established at

hearing,

and as amended 1~ the County only

in the

Board’s Order ~f

February 24, 1983

‘hc~ last brief being filed

March 16,

1983w

On

March 17,

Wa~t~

!

n-rjc

eat filed a motion to

clarify the records

Several res~on~e~

ar

p~ositionwere

received

between March 22 and

April

6,

1983

7

motion will be discussed

below.)

Finally, on

March 24 W~s’~

¶

~~i~nt waived the

decision

date to and including

April

21,

1983

PROCEDURAL

IV

In the briefs,

no party has ~r

review of the evidentiary

and ot

who conducted the hearing

at th”~

officer

who

conducted

the hearina

some citizen intervenors

have arguab

v

their arguments.

As

Section 40 1(

the fundamental

fairness

of the pa

the Board will on its

own motro

the County and Board

record,

Contents of

the

Co

y

ecgrd

~‘

requested Board

the hearing

officer

ci,

or of the

hearing

~oird level, although

doie

so by the

nature of

~,

the Board

to consider

used by the County,

re;ai

aspects of both

The first matter deserving

issue of what should

have been arc

The County conducted

17 hearings

t

dates between October

4 and Novemb~r

2833 pages of transcript,

accompani

q

*The Board

notes

that in tr~~e~

certain exhibits

were listed a’

a

exhibits was also

presented at

The Board notes that

exhibit3

I

although A-90 was not.

It

is

r

not notice these two

exhibits

was two unbound

boxes of pap

a

to the Board.

In

the future,

a

may not be accepted

by the Boar

The Board also

notes that the

two hearings were

held November

8

~

one in the evening.

Examination of t

script presented,

~s well

as the p~

indicates that only

one hearing was rd3

is complete.

Li e Budrd is the

Cointy~srecord.

e

held on various

j9P’

which

comprise

‘

TE

~23 exhibits,*

~‘n

of

the

record,

~t

of

missing

r

(Rec.

Ex,

1).

in

fact

tendered,

~he

County did

Board

received

y discernible

i

this

condition

11

i

indicates that

re

in

the

morning a~

~e

November

8

tran-

e~ber

4

transcript,

-ci

that

the transcript

52~24

---

3

The hearings were conducted by a hearing officer retained by the

County for th,is purpose,~and were at all times attended by a

quorum of the County Board Members who had been designated as the

Landfill Advisory Committee (Committee).

The Committee met November 18,

1982, which meeting was

adjourned as

3 hearing transcripts had not been received.

At the

November

22,

1982 meeting, the result of the voting of the six

members of

the

Committee

present

recommended

to the County Board

that the County Board find that all but the first two criteria

had been satisfied.

These criteria concern the “need”

for the

facility, and whether the facility is designed, located and

proposed to be operated so that public health,

safety, and welfare

will be protected.

A draft resolution was adopted by the Committee

and transmitted to the full County Board on November 24,

1982.

The draft resolutiqn was presented to the County Board at a

special meeting held on December

2,

1982.

As the Committee had

split 3-3 on the issue of whether criteria *1 had been met, its

chairman also presented her recommendations as to conditions to

be imposed in the event that the County Board found that all six

criteria had been satisfied.

The draft resolution forwarded by

the Committee was adopted by a vote of

17-5, with 3 County Board

members voting “present”.

The County’s record,

as certified and filed with the Board

December 30,

1982, did not contain minutes/transcripts of the

Committee and County Board meetings.

These minutes were admitted

by the Board’s Rearing Officer on February 10,

1983, in response

to Waste Management’s motion to supplement as presented at the

Board’ s January 27 hearing

(Rec.

Ex.

2 Attach.

A—C).

In his written Order the Hearing Officer noted that the

Board had overruled the admission of meeting transcripts in

Waste Management of Illinois,

Inc.

v. Lake County Board,

PCB

82—119

(December 30,

1982, p.4).*

The Hearing Officer however,

admitted this material on the representation by Waste Management

that in the interests of fundamental

fairness review of these

transcripts by the Board was necessary.

The Board finds that this evidence was properly admitted

based on this representation.

In reviewing this material, the

Board finds no indicia of fundamental unfairness.

The Board

notes that one County Board Member commented that “You know,

I

*In

80

doing, the Board found that:

“The meeting to adopt the written decision is not a

part of the Section 392 hearing process.

Therefore,

unless the comments offered by individual County Board

members prior to the adoption of the written decision

reveal

‘fundamental unfairness’

in the hearing or

decision-making process, they are immaterial.”

52-2k

---

4

know, and the Board Members and so do the public know how many

stacks of transcripts have not even been

icked up,

...“

(Rec.

Ex.

2,

Attach C.,

p.

19).

However,

as no further information has

been presented on this point,

in a case where

3 County Board

members voted only as “present”,

no holding can be made that the

County’s decision was made in an unfair manner,

The motion to supplement requested admission of a proposal

made by Waste Management to the County Board to settle this

appeal upon certain conditions (Rec~Ex,

2,

Attach.

D)

and a

recitation of the manner in which the settlement proposal was

handled by the County

(Rec.

Ex.

2, ¶4-7), which was properly

excluded in the Rearing Officer’s February 10,

1983 ruling.

Settlement proposals

in and of themselves are totally irrelevant

to the issue of the correctness of

the

County’s

decision

or

the

fairness of the procedures used in reaching it,

In reviewing the hearing transcript, the Board noted a

controversy concerning the right of persons opposing the appli-

cation to cross-examine other persons opposing the application

(e.g. County Rec.

1874,

2514).

In the course of those discussions,

reference was made to and quotation made of procedural

rules on

this point.

However, the only procedural

rules submitted to the

Board were those contained in the County~sAmended Resolution

82—191 of July 28,

1982 which in “Section II Procedures” provides

in

¶9 only that “the right of cross-examination shall be guaranteed

and

time

limits

for

direct

and

cross-’exarnination

shall

not

be

arbitrarily imposed.”

Any procedural

rules

adopted

by a County should be submitted

to the Board on appeal to insure adequate review,

The additional

rules referenced in the transcript have not been supplied to the

Board,

although

the

su~~tan~e

o

~‘

a~

~cussed

i”

the course of the hearing

(e.g.

p.

i2~’14.

The

Board

cautions

the County that, while this error is harmless

in this case,

it

should not be repeated.)

On the substantive

issue, the Board

believes

that

the

County’s

hearing

officeres literal

interpretation

of the rule he was quoting was incorrsct~ Nowever, viewLng the

record asa whole and noting the latitude given to citizens in

cross—examination generally, the Board does not believe that

failure to allow cross—examination of

the witnesses presented by

Joliet

Township

to

have

been a fatal procedural

flaw

under

the

facts

of

this

case.

Finally,

the

Board

notes

with

approval the fandling by the

County

of

the

problem

raised

by,

in

the hearing

officer’s

words,

the “deplorable, illicit” delivery to some or all of the County

Board members of extra—record materials admitted by one County

Board member to be prejudicial to the applicant’s case,

The

decision to enter these materials into the record (County Rec.

2230—2256,

Ex. CBI—5), and to ventilate the issue, as well as the

nature of the hearing officer’s instructions at the close of

hearing, were well designed to prevent fundamental

fairness

problems.

52-26

---

5

Status

of

Intervenors

The’ briefs

of

the

citizen

intervenors

raise

two

points

for

consideration.

The first is an objection to their

failure

to

receive copies of Waste Management~sJanuary

27 motion to supple-

ment.

They quite rightly argue that,

once granted

intervenor’s

status, copies of the motion should have been served upon them

to allow them to present arguments to the hearing officer

in

response thereto.

The second concerns the scope of the subject matter

legitimately to be addressed by an intervenor

:in an appeal by

an applicant of the county’s decision to deny site location

suitability approval.

In their briefs, as well

as arguing the

correctness of the County’s decision that the first two criteria

had not been satisfied,

some intervenors argued the incorrectness

of the County’s finding that the other four criteria had been

satisfied.

(The

contents

of

the

County~s

decision

will

be

discussed

later

in

this

Opinion.)

Section 40.1(a) of the Act provides that only an applicant

may appeal county denial of approval,

in contrast to Section

40.1(b) which provides that grant of approval may be appealed by

a third party.

What the intervenors have in essence attempted

to do is to cross—appeal those elements of the County’s decision

which amount to a grant.

It can be argued that to permit this sort of action furthers

the intention of P.A.

82—682,

since if the Board were to overrule

the County’s findings on the criteria which

serve

as

the

basis

for denial, the approval would be granted without Board review of

the remaining criteria.

However, as the

maxim

states,

an

inter—

venor

must

“take

the

case

as

liC

fln~

ii:.’~ and the

issues

on

appeal

at

the

time

these

intervenors

entered into

this

action

concerned only criteria #1 and #2.

Absent additional specific

legislative authorization for a cross-appeal

of

the

additional

criteria,

or

of

a legislative mandate that the Board review a

County decision as to all criteria once any person has challenged

a decision on one of them, the Board cannot provide for expansion

of

statutory

appeal rights, Landfill,Inc~v0PCB, 74 Ill.2d 541,

387 N.E.2d 258

(1978).

The

Board

on its

own

motion

therefore

strikes the portions of its hearing record and the citizen

intervenor’s briefs which concern criteria

#3 through

#6.

Waste Management Motion to Clarify

Waste Management has moved for leave to “clarify” this

record by introduction of some 67 pages of documents concerning

groundwater monitoring and monitoring test results

(many of which

are dated after the date of the County decision).

The asserted

need for clarification is premised on a March

2,

1983 television

broadcast of the 10:00 p.m. news on Channel

5—NBC Television.

The substance of the broadcast was an inquiry into the character

and environmental effects of the existing ESL landfill, and much

52-27

---

of

it

concerned the community tears of ~id anger about possible

groundwater

contamination

reculting firm the site,

During the

course

of

the

segment, on camera comn~n’csby Jacob Dumelle of this

Board concerning the

purpoce of monltorirg wells were

interposed

between comments by

the news reporter and an interview with

an

intervenor in this

action,

Waste

Management a~ages that the record must be “clarified”

with

its

documentary

evidence

‘ito assuage the taint of

potential

prejudice

(to

or on the pait of Boaic~Meiibers

which may have

resulted

to

these

proceedings, and ~

~ut at rest the

public

fears

and

apprehensions

that were undoubtedly math. more acute as

a

result

of

foregoing

(sic)

te1~v1s’o’Dzoadcast~(Motion at

p.

3)~

Intervenors

Marr, Topoiski,

Lembcire,

Rourke and the

Village

of

Channahon*

essentially argue that this evidence is

irrelevant,

and

that

acceptance

of it

y the Board would violate

Section

40.1(a) of the Act

which provides that “no new or additional

evidence in support

of or in opposition to any

,,,decision of the

...county board

...shall be teard by the Board”,

The Board agrees

with tie in~ervenors,and hereby denies

the

motion.

The Board

notes tha

site location suitability

approval

appeals are often the

subject of public~typrior to

(as well

as

after) the Board’s

decision, which publicity is routinely

disregarded.

THE COUNTY’S

t 15 O~~

~JJ~Q11J~

In

its

4—page

Resoluti

i

~‘

I

is ‘~ountymade specific

findings on each of the cm

r.

i. c

a

ii Section

39.2(a) of

the Act,**

The determinat

C

tha.

thr ~x ‘~era of Section

39.2(a)

*Four uf the responses

ii opposttL~r ‘#ere

filed late (County

Board, April

5;

Rourke, April

4; Channahoa, March

30; Lembcke,

April

6).

However,

the late filing has not served to delay

decision

in this case, nor h

any piejudice been shown.

There-

fore, the Board has

accepted those responses and considered

them

as though timely

filed.

**These six

criteria ar

~1

T

a facility is necessary

to

accommodate the

waste needs o~~e

“c~

t ~

intended to serve;

2. the facility is

so desigic.

locci so

cani proposed to be

oper-

ated that the public

healtt

:aiety

aid v~lfaLe

will

be protected;

3. the facility is

located so as to minimize incompatibility

with

the character of~.the

surroundirg 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

the4llinois Department

of Transportation and is approved

by that

Department;

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.

---

7

3-6 had been satisfied were brief, and merit no discussion,

The

Board will address first Criterion #2, since it is not dispositive

of this case,

In finding that Waste Management had not adequately

demonstrated that the criterion

#2 was satisfied,

the County

listed 10 points of objection.

These were derived

in large part

from the 29

findings contained in the Draft Staff Findings and

Evaluation Report (County Rec,

Ex,

Si,

p.

1—4),

One such objection

deals with the possible ~adverse impact”

on the site if a breach

would occur in a nearby Olin Corporation tailings pound

(Res.

82—151,

#2(a),

p,

2).

Regarding the concern as to whether the

site berms are sufficient to hold back a wash from a rupture

in

the Olin tailing pond, the Board finds that this is a technical

issue related to the design of the landfill and is a matter for

Agency review for the reasons stated below,

The Board also notes

that the County Staff testimony indicated that,

if this is

a

problem,

it could be easily resolved (County Hearing Rec,

2739).

As to the rest, in his testimony explaining the report,

John

R,

Gallagher,

Jr., Director of Development, agreed that the

objections could be summarized as relating to the geology,

soils,

hydrogeology,

and underground water of the site

(County Hearing

Rec, p,

2727),

More specifically, the Countyvs ultimate conclusion was that,

“Given the hydrogeology of the proposed landfill

expansion site,

and the admission by the applicant of

ultimate cell failure or leakage,

and the inability of

the applicant to provide reasonably positive assurance

against the ultimate contamination of the Silurian

Dolomite aquifer, the proposed expansion site appears

to be unsuitable for landfill purposes”

(Id,,

#2(j),

p.

2—3).

Waste Management argues that the basis for the County’s

negative decision concerning this criteria involve the “highly

technical” issues of landfill design, hydrogeology, etc. which

the Board has previously found to remain within the jurisdiction

of the Illinois Environmental Protection Agency (~~an~ment

of Illlinoi~,_j~~Taz!,~ilC2unt,PCB 82—55, Aug.

5,

1982,

p.

10, and Brownin

Ferris Industries of Illinois

Inc.

v, Lake

County, PCB

8 ~-101,Dee,

2,

1982,

p.

7—10),

The County and the

intervenors in response request the Board to reconsider these

earlier decisions.

Joliet Township argues that the language of Section 39,2

of the Act is “clear and unambiguous”, and that no resort should

be made to determine legislative intent.

The County additionally

argues that,

since Waste Management was aware of the Tazewell

decision at the time of the Will County hearings, and still

chose

to

present “technical” evidence concerning hydrogeology and

52-29

---

B

the like, that the County Board should be allowed to review the

data and give it “whatever weight it deems proper”.

Both

arguments are rejected for the reasons stated in the cited pages

of Browning—Ferris,

~

Further, actions taken by Waste

Management at the County Board hearings cannot act to enlarge the

statutory jurisdiction of the County Board,

Nor

is there any

inherent statutory limitation on the scope of a presentation in

describing a site.

~

—Ferris spoke of the need for distinct

differentiation of review responsibilities between the Agency

and local authorities to prevent chaos and to avoid disruption

of a unified state~wideprogram in the factual context of an

application for a site proposing to accept special non-hazardous

wastes.

Here, where

Waste

Management

is

also

proposing

to

accept

hazardous wastes, the

logic

of

the

Board’s

prior conclusion is

even more inescapable.

The technical questions are more complex,

the

potential

for

environmental

harm

is

greater,

and

federal

regulations

underlay

the State’s hazardous waste program.

Disposal of hazardous wastes is federally regulated

pursuant

to Sections 3001—3005 of the Resource Conservation and Recovery

Act of 1976

(RCRA),

42 U.S.C.

SS69216925,

and regulations

promulgated pursuant thereto by the United States Environmental

Protection Agency (USEPA).

The Illinois General Asdembly,

in P.A.

82—380

as

codified in Sections 20(a)(4—9)

and 22.4 of the Act

determined that:

“it is in the interest of the people of

the

State

of

Illinois to authorize .,.a hazardous waste manaqement

program

equivalent

to the federal program)

and secure

federal approval thereof, and thereby to avoid the

existence of d~p~icative,overlapping or conflicting

~

(S20(a)(8),

emphasis

The Board notes that

it

is in the process of adopting

regulations

“identical

in

substance” to the RCRA regulations.

Phase

I

(Interim) Authorization has been received and Phase II

(Permitting) Authorization is in progress.

Those regulations

establish a pervasive scheme of hazardous waste site permitting,

management, and oversight.

As part of that regulatory scheme

certain requirements are placed upon the permitting authority

regarding the review process, public notice, and hearings.

In

order to obtain and retain authorization for the State to

administer the RCRA program,

state

law must reflect those

requirements.

If Section 39.2 of the Act were to be construed as

conferring jurisfiction on local governments over the “highly

technical” issues of landfill design concurrently with the Agency,

a question arises as to whether both the Agency and the local

government must comply with those RCRA mandates as part of the

52-30

---

9

State’s

permitting

authority.

This

is

particularly

troublesome

if

the local authority imposes technical

conditions

which

could

act to bind the Agency in its permitting decision.

The

difficulty

in insuring such compliance by all local authorities

in the State with the RCRA requirements

is

enormous,

Another

possible

conflict

with

RCRA

arises

pursuant

to

40

CFR

123.4(b)

of

RCRA

which

requires

that

“if

more

than

one

agency

is responsible

for

administration

of

a

program,

each

agency

must

have statewide

jurisdiction

over

a

class

of

activities”,

That

provision, as

well

as

the

overall

structure

of

the

RCRA program

and the State’s

environmental

program,

demonstrates

the

intent

that the State have a uniform, statewide program of hazardous

waste management.

That purpose is defeated by an interpretation

of Section 39,2 of the Act which allows the hundreds of

local

authorities to independently review technical criteria,

These

local authorities have no statewide jurisdiction, while the

aquifers and waters

of

the

State

which

would

be

impacted

can

affect

large areas of the State,

For all these reasons, among others, the Board reaffirms its

holding

that the local

authorities

do

not

have the power to

consider the “highly technical”

aspects of landfill design and

hydrogeology,

THE COUNTY’S DECISION:

CRITERION *1

The County found that the proposed expansion had not been

demonstrated to be “necessary to accommodate the waste needs of

the area it is intended

to

serve”

(County

Res.

82-151,

p.

1),

These

reasons

are:

“a)

The applicant has not demonstrated that the

proposed expansion site

is necessary to receive a waste which

is not now permitted for disposal

in Will County, especially

one which is generated in Will County, or which requires

special hand~ingthat cannot be met at existing sites, or

that such expansion is necessary to meet contractual

obligations projected to continue beyond the anticipated life

of the current

site,

b)

In view of the fact that the proposed expansion

site is anticipated to receive the same wastes as the

existing site, the applicant has failed to provide a specific

list of the wastes received, quantities by type received,

sources of each type of waste received by manufacturer and

location, analysis

of

wastes received, treatment processes

of facilities generating water and wastewater sludges, and

the disposal procedures for each type of waste received.

c)

The applicant has indicated that the facility

is

not intended to serve a growing population or business need.

52~31

---

10

d)

Data

provided

by

the

ap~licanr,

with

reqard

to

municipal/sanitary

and

non~’hazarcious special

waste

le9;~df:Lii.

disposal

site

inventory

does

not

establish

r ~e

need

for

additional

such

:Landn II

d:Lsoosal

ca:pa~ity

in

WitI

County

for

more

than

the

next

ten

(10)

years.

a)

Jat~t ~ :ovr&ni

b,r

~ne

applicant

with

regard

to

hazardous

spa~iil

waste

iandfill

~iispcsai

site

inventory

does

not

e~o1is~h the

need

for

additional

;3u0h

:Ianafil:L

disposal

captcit~

rr

cJiL

1

County

for

more

than

the

next five

(5)

years.”

As with

Criterion

*2

the

County

mel ~ed

heavily

on

the

County

Staff

evaluation

report

:~nexpressing

these

reasorms,*

Generally,

staff

re—analyzed

Was~

a

~anaqement~

s

delta

matnet

than

generating

new

data,

but

reached

drl:ier~rt

L’onciusions

challenging

the

applicant’s

use

of

its

data.

In

order

to

focus

the

discussion

on

the

County’

s

reasons

a

pener~m

summary

of

the

approach

used

by

Waste

Management

in

presen~atioii

is

in

order,

WASTE

MANACEMENC

~

PRESENTAT CJN

Area

intended

to

h~ served

The

appiicant

delineated

the

intended

service

areas by reflecting

the

areas presently

served

by

the

existing

site,

and

then,

generally,

focused

on

the

percent

estimated

to

come

from

Will

County.

For

this

purpose

the

applicant

divided

the

waste

into

tour

categories:**

1.

Municipal

or

general

refuse,

The

applicant

listed

the

towns served by the

haul ore

with

whom

they

had

contracts

(See

esp.

County

Ex,

A~~IO

stalv

nc

:hat.

over

9~

was

qenerated

in

will

County,

and

particu

arly

from

the

urban

Joliet

area

(County

Hearing

Rec.

88).

*Regarding

Criteria

~l,

the

County

resolution

quoted

almost

verbatim

the

staff

find:Lnqs

(3 ~

(4)

,

:

6)

,

7)

and

(8)

Significantly,

the

Count3

nd

not

Include

the

staff

findings

(1),

(2)

and

(S)

**The

Board

not ~s

ttis

~‘Cc1:~en

3

of

th~

A ~t

which

defines

special

~astos

~

thdsr

i

a

~~Iou~

was

a

~uboategorv

of

special

waste,

wh~

Jo

~r.~ticr

~ tx

ref?rs

to

ot ecta~.

aria

hazardous

waste

as

8?

parath

ni e

disthuct

Late~’aor:~

~s

This

difference

understandC

~

aused

acme

categor3

r

~onfus:Lon

in

the

record,

especially

wh~c

twh

c-rn.

“rmpeciai~

west ~

was

u~ed w~t:hout

further

clarification

The

Board

also

notes

that,

when

the

Agency

permits

a

site

to

handle

special

non—h~~d,us

or

hazardous

waste,

the

site can

accept

such

wastes

only

by

way

of

a

supplemental

permit

for

each

waste

stream.

---

2,

Special hazardous and non-hazardous bulk liquid waste

(not containerized).

The applicant stated that 100

came

froii

within Will County

(Id. p.

193,

Ex,

A-16),

3,

Special hazardous and non-hazardous solid waste and

sludge receipts

(not containerized).

The applicant s~atedt..at

84

was

generated

in

Will

County,

particularly

fron

Joliet,

plus

additional

outlying

areas

in

Cook,

Grundy

and

Kane

Counties

(Id.

p.

19,

Ex.

A—16).

4.

Containerized

hazardous

and

non—hazardous

waste.

The

applicant

stated

that

9

31

and

63

of

this

waste

was

generated

within a 15,

30

and

50

xi

e

radius

respectively

of

the

ESL

site,

with the remainder comirj from g~eaterdistances that included

other states

(Id. 19

,

Ftc

P~

S

Other available

sites

1.

Hazardous

waste

disposal

facilities.

Within

a

50 mile

radius

of the ESL

site,

‘he

applicant

listed

two

hazardous

waste

landfills and, between a 50 and 100 mile radius,

10 additional

sites

(Esp.

Ex.

1—15).

All together, the applicant listed 23

sites in Illinois, Michigan, Indiana, Ohio and Wisconsin.

2.

General/municipal refuse and/or special non—hazardous

waste sites.

The applicant focused particularly on four presently

active sites in Will County, one of which

(Land and Lakes) had an

“experimental” kermit and another of which

(Carlstrom) purportedly

did not accept general/mun~cipalrefuse,

A fifth site,

the Hamman

site

in

Wheatland

Township,

has

recently

received

a

development

permit, but was not

included

in

the

applicant’s

analysis

(Id.

p.

1566,

Ex, A—14).

(Otter

s~tes

were

listed

in

the

six

county

area, but neither

the

app

ict

nor

the

County

‘Wrested

their

cases”

on these sites

)

Site

Natur~

f

Waste

Barrett

Municipal

and

some

non—hazardous

special

(Id.

p.

1566,

Ex,

A—82,

A—83)

Sexton

Land and Lakes

Hun icipal

only

Carlstrom

(see

n

te

below)*

*The record is not clear as to what Carlstrom is permitted

to receive.

Conflicting testimony and statements are that the

landfill accepts only

industrial

solid

and

special

waste

by

sup-

plemental permit

(Id. p

1566); none of the ESL

municipal

waste

could go to Carlstrom

(Id, p. 1573); Carlstrom accepts industrial,

(footnote continued on next page)

5a-33

---

12

Special non—hazardous and/or hazardous waste sites were noted

by the applicant as existing in 12 “collar and second collar”

counties plus the Rockford SMSA,**

Of these areas,

all but one

(McHenry) have

sites

receiving

non-hazardous

special

Waste

and

four

(Cook, Iroquois, Lake,

and Rockford SMSA) have sites

receiving hazardous waste.

~

The applicant addressed

remaining useful life and capacity in relation to its own site

for the full range of wastes,

assuming a steady rate of use.

Depending

upon

the

categories

of

waste accepted, the remaining

life of the ESL

site

was

estimated to be between 4,5 and 7 years.

The applicant

also

addressed

useful

life

and

capacity

regarding

municipal

and

non—hazardous

special wastes primarily

with

regard

to other

sites

in

Will

County.

Regarding

hazardous

waste, the applicant’s

data

primarily

emphasized

the

useful life

and capacity of

its

present

site

and whether

Will

County

is

taking care of

its

“fair

share”.

Both

the

Petitioner and

the

Respondent argued in their briefs

that the other

side had improperly addressed the waste needs

of

the

area

intended

to

be

served,

The

applicant

argued

that

the

County

addressed

the waste needs within Will County rather than

the

total

area

the expansion

is

intended to serve,

The County

argued

that

the

applicant focused only on Will County facilities

and,

in the case

of

hazardous

waste,

never defined the area to

be

served,

In

addressing

this

criterion

in

~~o3in~,

~

the

Board

noted that:

(footnote contihued

from

last

page)

non-putrescible,

non—garbage

waste

(Id.

p. 176);

Carlstrom

accepts

municipal

waste

(Pet.

Br,

p,~,

Res,

Br,

p.

3,

Ex,

S-I,

End,

1),

Additionally,

the

Waste

Management

application

includes

an

Illinois

Waste

Facilities

Inventory

table

(application,

pp.

56,

57)

that

states that

the

Carlstrom

landfill

accepts

only

industrial

trash

and

industrial

special

waste

from

a

single

trucking

company.

However,

the

table

also

inaccurately

states

that

the

Sexton

land—

fill can accept

hazardous

waste

and

the

Land

and

Lakes

special

non—hazardous, which

raises

questions

as

to

its

overall

accuracy.

**Standard Metropolitan

Statistical

Area,

a

term

multi—

county

used

by the Bureau of the Census,

U.S. Department of

Commerce.

52~34

---

13

~Because

.,,(an application involves

a regional

facility, the county cannot ignore the scope of the

area to be

served.

For example,

if the site is

intended to serve, to a significant degree,

a community

or

industry

outside its boundaries, but within the

intended area,

the county must consider

it.

However,

the statute

also

says

a facility must be necessary to

accommodate

the

waste

needs

of

the

area

it

is

:Lntended

to

serve.

It does

not

say

‘convenient’”

(Id.

at

8).

In

reviewing

this

record,

the

Board

is

prompted

to

add that the

statute does

not

say

a

municipality

or

county

considering the

suitability of a site located within its boundaries must provide

for disposal

of its “fair

share”

of all the wastes which it

generates

.

*

Waste

Management

S

attempt

in

this

record

to

inter-

ject

into

the

County’s

consideration

of

its

statutory

obligation

what may

be

considered

a

“moral

obligation”

certainly

contributed

to

any

misfocus on

this

criterion

by

the

County

and

its

staff,

Nevertheless,

the

Board

finds

that some of

the

reasons given by

the

County

are

sufficient

despite

its

overly restrictive

consideration,

in

part,

of

the

area

intended to be served.

Regarding

the

municipal/special

waste,

the Board finds

that

the

manner

in

which the County addressed

the

ESL and other

available

sites

in

the

area

intended

to

be

served

(in

terms

of

receipts,

capacity, remaining life, capacity and location) more

than adequately buttresses its rejection of Waste Management’s

arguments.

The applicant can hardly complain that the County

failed to include sites that the applicant itself failed to

include.

The County’s

analysis

(End.

I)

projected an 11.1 year

remaining life for

the

sites,

hut

reduced that to

10

years

in a

footnote

on a

hypothetical

assumption

that

the

ESL

site

would be

dedicated solely

to

hazardous

waste.

In

its analysis,

the

County

Staff

listed

the

same sites and

projected

the same

remaining

:Life

as

did

the

applicant

with two

important differences.

It

assumed

an

18—year

remaining life for

the

Land

and Lakes

site,

rather

than

the

projected

1 year experi-~

mental

permit life

utilized

by

the

applicant~.

Additionally, the

County

listed

the

Harnman

site,

although

it

did

not

use

a

capacity

or

remaining

life

figure

for

this

site

in

its

projections.

The applicant insisted that the Land and Lake landfill

was

operating under a one—year experimental permit and,

thus,

argued

that projecting

a remaining life of 18 years

is premature

(Ex.

*Note that the SB 172 process also applies to waste storage,

disposal, incinerator and transfer sites as well

as to sanitary

landfills.

52-35

---

14

A—81,

R.

1566,

Pet,

fir.

p.

6,

Reply Br. p. 6).*

On the other

hand, the

County

included an 18-year remaining life for Land and

Lakes in making its determination that 10 years of overall land-

fill capacity remain for the disposal of “municipal! sanitary and

non—hazardous special wastes in Will County”

(County Ex. S-i,

End.

1,

Resp. Br

•

p.

3).

The Board concurs with the County’s inclusion of the Land

and Lakes site in its analysis.

Since the Land and Lakes site

had been issued a developmental permit as well

as an experimental

permit to operate by the Agency,

the County could have a reasonable

expectation that the Land and Lakes site would operate for its

projected 18—year life.

Since the Hamman site also had been issued a developmental

permit, the County could also have had a reasonable expectation

of its 18—year projected life,

and thus included this site also,

although it did not do so.~

The Board also wishes to note that

the SB 172 expansion application for the Barrett site,

that was

only pending before the City of Joliet (thus obviously lacking an

Agency developmental permit), does not constitute a “reasonable”

expectation of a life longer than that listed.

Waste Management argued that the Sexton site would not be

an acceptable alternative to the ESL site,

particularly for the

~oliet urban area because of its 30-mile distance.

Even if such

an argument were accepted, the availability of the other sites

would not make “necessary” the expansion of the ESL site to

receive such waste.

And, as noted before,

the applicant also

failed to demonstrate that other sites outside the County were

not available.

Regarding the economics of going to other sites,

the County

staff

(and presumably the County Board) did not dispute the

applicant’s assessment that,

from an economic standpoint,

it is

preferable to have disposal sites in proximity to the population

in industrial areas

(County Hearing Rec.

2721).

While

not

control-

ling, the economics of greater hauling distances can be germaine

*However, the applicant, appeared at other times to waffle

on this issue.

When questioning the County staff witness, the

applicant twice appeared to assume that the Land and Lakes site

would be open for municipal refuse after the existing ESL site

closed down

(County Hearing Rec. 2719-2721).

Also,

on the

applicant’s Ex. A—81,

it listed an 18—year remaining life, noting

the experimental permit only in a footnote.

**The Board notes that the Land and Lakes site was issued

a full operational permit by the Agency

(See PCB 81-48) and the

Harnman site has received a court—ordered developmental permit

(Harry MathersL et al.

v. IPCB, et al.,

Case No. 81-741

(consolidated with 81—740),

Third

Dist., June 28,

1982,

leave to

52-36

---

15

to criterion #1.

In this case, however,

the Board finds that the

economics question was not developed fully enough by the applicant

to challenge the County Board’s determination that the site was

not “necessary”.

The applicant focused on the remaining

life, capacity and

proximity of only some of

the potential alternate sites,

and only

generally on the potential for greater hauling costs.

However,

the applicant did not evaluate what the potential impact would be

on those who actually paid for garbage pick-up.

Even

if an

increased economic burden were assumed,

(especially in the Joliet

area if the ESL site were able

to accept municipal waste only for

five more years)

the applicant’s arguments were generalized and

incomplete.

For example, the applicant failed to describe the

potential economic tradeoffs regarding the service

areas of other

sites

within

and

without

the

county

that

might

be

available

to

those

within

the

ESL

service

area.

Regarding hazardous waste disposal

ne,eds, the earlier noted

misfocus by the County on the “fair share” concept became

especially troublesome since the area intended to be served

extended far beyond the boundaries of the County.

Again, however,

the Board notes that it was not the County’s responsibility to

demonstrate need;

it was the applicant’s, and the Board

finds

that it failed to do so.

While the Board feels the applicant

satisfactorily delineated the area intended to be served (which

naturally become less precise as the service area grows

in scope),

the applicant failed to present any satisfactory waste “needs”

information about the intended service area with which the County

could

deal.

The

applicant’s

demonstrations

of

remaining

life and capacity

at

its

own

existing

site begged the question as to

whether

other

available sites, even those confined

to the urban area of

north-

eastern Illinois, could “pickup the slack” upon

its

closing.

In

addressing

capacity

and

projected

need,

the

applicant

specifically testified that

it rejected the use of pertinent USEPA

studies and a report to

the

Illinois

General

Assembly

because

“assumptions were made

which

I felt were not valid; and

it was my

preference

to utilize actual gate receipts

of

the ESL sitel to

determine capacities and projected

needs

for those capacities for

purposes of this hearing”

(County Hearing Rec,

203).

While the

Board cannot comment on the value of studies not made part of

this record, the use of ESL gate receipts was hardly an acceptable

substitute. Nor did the applicant demonstrate that other sites

could not handle its waste streams

(Id.

p.

188,

Ex,

A_15).*

And,

~Wtiilethe ~tppl1cantstated that it was aware that some

facilities

accept

a

narrow

range

of

hazardous waste, only one

near

Janesville,

Wisconsin

was

specifically

named

(Ex.

A—IS,

County Hearing Roe, 188,

~2-37

---

16

as discussed earlier,

its atternpt to demonstrate that Will County,

as a net

exporter of hazardous waste, should for this reason have

the ESL

site within the County also failed to properly address

criterion

#1.

Additionally,

the

applicant

failed

to

explain

why

it

focused

primarily on sites only within a 50—mi~leradius from its site

rather than, say, a 100—mile radius,

~ndeed, the applicant noted

that its own site received wastes from an area considerably beyond

50 miles

(see

~

p.

10—11),

The

County

had

no real data to

evaluate

the

potential

service

areas

of

alternate

sites, and apart

from its fair

share

arguments

(see

~

p.

12-13) the applicant

primarily

analyzed

the

need

to

expand

the

present ESL site in

order

for

the

site

to

continue

serving

its

ESL

customers.

It

is

not the intent

of

SB

172

that

an

applicant

has

a

right

to

expand

a site in order

to

stay

in

business,

Due to the

restrictive

evidence

presented

by

Waste

Management,

it

is

understandable

that

the

staff, in reanalyzing

the

data

presented

by

the

applicant

(with

the addition of some

figures of its

own

from

the

Commerce

Department),

focused

excessively on the

capacity

in

Will

County

to

address

needs of

wastes

generated

in

Will

County

(County

Hearing

Rec, p.

2670),

However,

the Board

notes

that

the

County

had some recognition of

this

“restricted

focus” problem,

in

that it did not list in its

reasons

for denial

Nos,

1

and

5~of the

Staff

analysis,

which

focused

solely on

the

Will

County

situation,

The Board

additionally

notes

that

the

County

also

rejected

No,

2

of the

Staff

analysis,

which

addressed

the

applicant’s

failure

to

inc~ludedisposal options

other

than

landfilling.

Regarding

the

Staff

testimony

that

the

need

for

a

hazardous

waste site was a

“close

call”,

such

testimony

was

founded

not

only

on

an

overly

restrictive

analysis,

as

discussed

earlier

and

as

indicated

in

its

Enclosure

12,

but

also

bn

an

incorrect

assumption

that

the

use

of

the

site

as

designed

for the various

categories of waste

was

a

“package

deal”

(Id,

p.

2669),

The

applicant

itself

noted,

for

example,

that

municipal

waste might

be

disposed

of

in

the

below

ground

containerized space area if

it

ran out of above

ground

space

(Id.

p.

1563).

In

any event,

the

ultimate

specific

uses

of

the

new

site,

as

well

as

its final

design, would be

determined

by

the

Agency

through

its permit and

supplemental

permit

system.

The

Board

also

finds

that

much

of

the

County’s

supporting

reason

#1(b)

contains

informational

requirements

that

go

beyond

that

necessary

to

reach

a

determination

on

criterion

11,

However,

the

Board concurs in the thrust of the reason insofar as it

reflects the applicant’s

failure to show the degree of impact on

ESL’s present customers

(who comprise the primary “area” to be

served by the expansion)

should the site close,

52-38

---

17

Additionally,

there is little detailed discussion in the

record regarding

the

County’s inclusion of finding #1(c), other

than

one

brief

remark

that it reflected the applicant’s assertions

(Id.

p.

2702).*

However,

the

Board

sees no problem with its

inclusion.

The

Board also notes that the arguments

in this record

regarding

the

time

needed

to

get

a

permit

and

start

operating a

new facility become largely unpersuasive when, as in this ease,

the question of what alternate sites exist,

and for how long,

in

the area intended to he served has not been acceptably addressed

by the applicant.

The

Board

accordingly

finds

that

the

County’s

determination

and

its

supporting

reasons,

except

as otherwise noted

in this

opinion, regarding

the

hazardous

waste

“needs”

issue should be

upheld.

In summary,

the

Board

sust:airs

the

deterininat:Lon

of the

Will

County

Board

that

Waste

Management

of

Illinois,

Inc. failed

to

demonstrate

that

the proposed expansion of the existing ESL

landfill

in

Joliet

Township satisfies the criterion of Section

39.2(a)(1)

of

the

Environmental

Protection

Act, but reverses the

determination

as

to the

criterion

of

Section 39,2(a)(2),

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions

of

the

law

in

this

matter,

*It

also

arguably

reflects

the

cancelling—out

of

the

applicant’s

assertions

that remaining life at ESL for hazardous

waste

may

be

shortened

by,

for

example, the new RCRA requirements

making

generator

on—site

disposal

less desirable versus the

opponents

arguments

that

Sec.

39(h)

of

the

Act,

for

example,

will

make

the

landfilling

option

much

more

difficult

after January

1,

1987,

after

which a

generator

must

show

that

landfilling is

the

only

reasonably

available

option.

ORDER

1.

The Board affirms the County~sdetermination to deny

site location suitability approval of the ESL site expansion

pursuant to Section 39,2(a)(1)

of the Act.

2,

Waste Management’s

March

17,

1983

Motion

to

Clarify

The

Record

is

hereby

denied.

IT

IS

SO

ORDERED.

J,D, Dumelie concurred,

I, Christan L.

Moffett, Clerk of the Illinois POllution

Control Board, hereby certify that the above Opinion and Order

was adopted on the

~~day

of

,

1983 by

a vote of

ç~~(),

Illinois Pollution Control Board

52-39