ILLINOIS POLLUTION CONTROL BOARD
August
5,
1982
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
a Delaware corporation,
)
Petitioner,
)
v.
)
PCB 82—55
)
BOARD OF-SUPERVISORS OF TAZEWELL COUNTY,
)
)
Respondent.
RICHARD V.
HOUPT, PEDERSEN & HOUPT, AND THOMAS
A. VOLINI, WASTE
MANAGEMENT,
INC., APPEARED FOR PETITIONER.
G.
EDWARD
ORR, ATTORNEY, APPEARED FOR RESPONDENT.
CARL F. REARDON, CARL F.
REARDON & ASSOCIATES, LTD., APPEARED
ON BEHALF OF INTERVENOR, CITY OF EAST PEORIA.
OPINION AND ORDER OF THE BOARD (by
I.
G. Goodman):
This matter is before the Board upon the April 28,
1982
appeal by Waste Management of Illinois, Inc.
(Waste Management)
from the decision of the Board of Supervisors of Tazewell County
(Taz?well County) denying siting approval, pursuant to Section
39.2
of the Environmental Protection Act (Act),
for proposed
expansion of a solid waste disposal facility known as the Tazewell
County Landfill located in an unincorporated area of Tazewell
County,
Illinois.
This appeal, filed pursuant to Section 40.1 of
the Act,
is a case of first impression before this Board.
The
Board will therefore address certain procedural issues
that have
arisen, notwithstanding that they are not determinative of the
case.
Hearing was held in this matter and the Board has received
considerable public comment, including a large number of letters
from citizens and a petition purporting to contain 8,722
signatures, both in opposition to the proposed landfill expansion.
In addition,
the
Board has received resolutions by the Northern
Tazewell Public Water District,
the City of Washington, the Vii—
lages of North Pekin,
and Morton and Peoria Heights in opposition
to
the expansion.
1
References herein reflect the Revisory Act of 1982
(P.A.
82-783) which changed Section 39.1
(as adopted in P.A.
82—682) to
Section 392.
47-485
2
PROCEDURAL HISTORY BEFORE THIS BOARD
In its Order of April
29, 1982,
the Board determined that
the County Board was the appropriate party to prepare and file
the record below, ordered the record prepared pursuant to certain
guidelines contained in that Order and set the matter for public
hearing.
On May 27,
1982,
the Board denied Waste Management’s
motion to vacate the April 29th Order and in the alternative,
establish a briefing schedule and designate a hearing date before
the entire Board.
In that Order and a subsequent Order dated
June
10,
1282,
the Board found that a public hearing pursuant to
the Board’s procedural
rules was necessary.
In addition,
the
Board determined that the record would consist of the County
public hearing record, documents filed by the parties, and any
documents submitted at the Board hearing admissIble under the
mandate of Section 40.1 of the Act.
The parties were also
directed therein to file legal arguments prior to hearing.
On June 28,
1982,
the City of East Peoria
(East Peoria)
filed its Petition for leave to intervene alleging a vital
interest in the outcome of the proceedings due to the proximity
of the proposed waste disposal facility to East Peoria and its
proposed central water supply system.
On July
1,
1982, the
hearing officer allowed East Peoria to participate in that day’s
hearing to the extent of cross examination and argument and, at
the end of the hearing, granted intervention.
(R.
7,
114).
However, when the question of presentation of evidence by East
Peoria at the hearing arose, the other parties objected and the
hearing was adjourned to allow appeal of the hearing officer’s
decision to the Board.
On July
8,
1982, Waste Management filed
its motion to exclude additional evidence and to conclude
hearing,
in which motion Tazewell County joined on July 19,
1982.
On July 21, 1982, the Board found that “East Peoria, having
been granted the right to intervene, must accept the proceeding
in the same posture as the original parties.”
Waste Management’s
motion to conclude hearing was granted and briefs were ordered
filed by the parties and the Intervenor no later than July 30,
1982.
On July 22,
1982,
East Peoria moved for reconsideration of
the Board’s July
21,
1982 Order alleging that Waste Management
had waived its right to a decision by August
6,
1982 and that the
hearing officer had set an additional hearing for August 16,
1982.
At a special meeting held July 26,
1982,
the Board denied East
Peoria’~smotion,
finding that Waste Management’s agreement to
extend the decision period was a conditional waiver anticipating
the possibility that the Board would deny its motion to conclude
hearing and therefore could not be considered a true waiver.
In
addition,
the Board deleted a sentence in the July 21,
1982 Order
referring to the amount of time remaining
in the decision period
because it gave undue emphasis to the statutory deadline when the
real thrust of that Order was that East Peoria had had sufficient
opportunity to challenge the record.
47-486
3
On July 30,
1982,
Intervenor,
East Peoria,
filed
a motion
for leave to file offers of proof requesting that such offers of
proof be made part of the record
in order to permit a reviewing
court to determine whether the exclusion was improper, and
if so,
whether prejudicial error had occurred,
Although this is an
unusual request, the Board shall grant the request to include the
offers of proof in this particular case.
As noted above, this
is a case of first
impression.
Therefore,
the admissibility of evidence under a Section 40.1
review was uncertain and undefined by the Board at the time of
the July 1, 1982 hearing.
In fact this uncertainty coupled with
the strenuous objections,
including a threat to abandon further
participation
in the hearing, by Waste Management in order to get
a prior determination by the Board regarding the evidence proposed
by the Intervenor
(R.
116), caused
the Board’s hearing officer to
adjourn the hearing sine die.
Had that hearing continued or been
reconvened, East Peoria~sproposed testimony would have been
scrutinized for admissibility.
Furthermore,
it is likely that the
hearing officer would have accepted offers of proof pursuant to
Procedural Rules
316(f) and general Board policy that its hearing
officers accept offers of proof for Board review when unsure of
the evidence’s admissibility~ Fundamental fairness requires that
the offers of proof be now accepted from East Peoria, and reviewed
by the Board to determine whether they include evidence pertinent
to the fundamental fairness of the Tazewell County review or new
evidence.
The admissibility of the evidence contained in the
offers of proof is considered
later
in this Opinion.
On August
4,
1982 Waste Management filed a reply
to the
Intervenor’s brief and a motion to strike six affidavits, two
resolutions and the petition opposing the landfill.
The affi-
davits are included in the Intervenor’s Offers of Proof.
Waste
Management’s motion to strike
is denied based on the reasons
set out above.
The motion to strike the resolutions and petition
is denied,
as contrary to the Board’s policy of encouraging public
access to its processes.
PROCEDURAL HISTORY BEFORE THE TAZEWELL COUNTY BOARD
As indicated by the record, the history of the proceeding
under review is as follows,
Waste Management, pursuant to Section
39.2 of the Act, requested siting approval from Tazewell County
to expand a solid waste disposal facility at its existing landfiU
in Tazewell County,
Illinois.
On February
18,
1982,
Tazewell
County, after a hearing mandated by the Act, granted the siting
approval subject to certain conditions,
finding that Waste Manage-
ment had met its burden of proof on each of the six criteria set
forth in Section 39,2(a)
of the Act.
On February 24,
1982, East
Peoria
filed a petition with Tazewell County requesting that the
previous decision be set aside and that the public hearing be
reopened.
Tazewell County subsequently set aside its decision
47-487
4
and reopened the public hearing which was held on March
24,
1982
for the limited purpose of addressing East Peoria~spetition.
On April
19,
1982, Tazewell County denied Waste Management’s
petition for site location approval
finding, inter alia,
that a)
the facility is not necessary to accommodate disposal needs for
waste generated and coming from outside the State of Illinois;
b) the facility is not so designed,
located and proposed to be
operated so that the public health,
safety and welfare will be
protected inasmuch as the applicant is authorized to receive and
dispose of special waste; and c) the facility is not so located
as to minimize incompatibility with the character of the sur-
rounding area and minimize the effect on the value of surrounding
properties
in that one residential property immediately adjacent
and abutting the subject property exists.
In addition, recognizing
the possiblity of reversal
of its decision by the Board,
Tazewell
County indicated its intention that certain enumerated conditions
be imposed upon such reversal.
THE APPLICABLE STATUTES
Public Act
82—”682 requires Tazewell County to approve the
suitability of a site location for a 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,
safety and welfare will
be
protected;
3.
The facility is located so as to minimize incompatibility
with the character of the surrounding 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 floodproofed 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 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,
That same Public Act contains certain requirements concerning
notice,
public
hearing, decisions including such conditions
as may
be reasonable and necessary to accomplish the purpose of the
Section,
and certain other limitations.
Section 40.1 of the Act
47-488
5
contains provisions
for appeal of the local authority’s decision
to the Board
citing Sections 32 and 33(a) of the Act.
That same
Section calls
for the Board to include in its consideration the
written decision
and its reasoning, transcribed record of the
hearing, and the
fundamental fairness of the procedures used by
Tazewell County
in reaching that decision,
The Section
also
states
“.
.
the burden of proof shall be on the petitioner;
however, no new
or additional evidence in support of or in
opposition to any
finding, order, determination, or decision
of
the appropriate
County board or governing body of the
municipality shall
be heard by the Board,”
PROCEDURAL ISSUES
The Board
shall first consider the procedural issues
presented by the
Parties
and the Intervenor in order to narrow
the focus on the substantive
issues presented herein,
Interverior
East Peoria complains that notice by Waste Management of its
Petition to Tazewell County was defective.
The alleged defects
include failure to
indicate the possibility of
acceptance
of
special wastes
in its permit application, failure to state the
probable
life of proposed activity,
failure to state the size
of the development, and failure to indicate the date when the
request for site approval would be submitted to the County Board.
The alleged failure to indicate the possible acceptance of
special
wastes concerns a misunderstanding with regard to Waste
Management’s application to the Illinois Environmental Protection
Agency for
a permit to develop and operate a landfill site which
was included as an Exhibit in the Petition to Tazewell County.
Using a form application, which contained boxes
to be checked
off indicating which type of permit is being applied
for, Waste
Management checked boxes labeled “develop a site” and “operate
a site”, and not the box labeled “to receive special waste”.
Since special waste permits cannot be requested until the land-
fill is
in
operation,
the special waste section
could not have
been
checked
off on the development permit application even if
Waste Management was anticipating the acceptance of special
waste.
The Board notes that the statute does not require that
permit applications be submitted
to the local authority.
In addition,
there is no question that acceptance of special
wastes
was
considered by Tazewell County at both its hearings.
The
Petition as announced by the Board Chairman, was for
“...non—hazardous household,
industrial and special wastes
.
.
.“
(February 18,
1982 hearing, p.
4),
Furthermore, the record of
both hearings incidate that the public participants were not at
any time
surprised
that approval sought by
the Petition involved
47-489
6
a site to handle non—hazardous special waste.2
The Board
finds
that the alleged procedural defect with respect to this issue,
if true, resulted in no prejudice and has been cured.
The Board
notes that although the statute does not require that the notice
for a public hearing include a description of the waste under
consideration,
in the interests of fundamental fairness,
such
notice should be as precise as possible and that an applicant,
in conjunction with the local authority,
issuing an incomplete
or confusing notice does so at its peril.
After review of the Tazewell County record,
the Board finds
that the other alleged notice deficiencies, even if true,
are
not fatal to the Petition.
Certainly East Peoria cannot claim
prejudice since each and every one of the alleged defects was
considered in depth at the February 18,
1982 hearing
in which
East Peoria participated.
To allow a claim of defective notice
at this late date,
especially since prejudice to any person is
neither alleged nor apparent, would result in the entire record
before the County Board counting for naught, would not produce
a superior subsequent record and would therefore be a tremendous
waste of the taxpayer’s money.
The Board therefore rejects East
Peoria’s claim of defective notice.
Waste Management alleges that Tazewell County lacked
authority or basis to reopen the public hearing after having
rendered a decision at the February 18,
1982 hearing.
Tazewell
County, pursuant to a Petition alleging misstatements of a Waste
Management witness at the first hearing concerning the geographic
area to be served, vacated its decision to grant siting approval
and reopened the public hearing for further testimony.
This was
done on February 24,
1982, only six days subsequent to the first
decision.
Tazewell County in this case properly exercised its
power to review its own
decision and, concluding that its initial
decision may have been incorrect and that it needed additional
information,
to vacate the initial decision and call for a con-
tinuation of the public hearing.
Although certainly disconcerting
to Waste Management,
the prejudice to the public by an incorrect
decision by Tazewell County transcends any potential prejudice
to Waste Management in having an extended public hearing on its
Petition.
Whether or not this action resulted
in a
correct or
fair decision will be discussed later.
The Board will therefore
consider the entire record,
as presented by Tazewell County,
in
its consideration of Tazewell County’s final order rendered on
March
24,
1982.
2 “Special Waste”
is defined in Section 3 of the
Environmental Protection Act,
Ill. Rev,
Stat.
1981,
Ch.
111½,
pars.
1003,
as “any industrial
process waste, pollution control
waste or hazardous waste”.
All three subcategories of “special
waste” are also defined in Section 3.
Yet, Section 3(x)(3), as
amended by P.A.
82—682, distinguishes hazardous wastes
from
special wastes.
Acknowledging this distinction, the Board will
use the terms “non—hazardous special wastes” and “hazardous
special wastes” throughout this Opinion.
47-4
90
7
SUBSTANTIVE ISSUES
Some of Tazewell County’s substantive findings are uncontested.
It was found that the facility was located outside the boundary of
the 100—year flood plain as determined by the Illinois Department
of Transportation and that the traffic patterns to and from the
facility are so designed as to minimize the impact on existing
traffic flows.
With respect to the requirement that the facility be
demonstrated to be located so as to minimize the effect on the
value of surrounding property,
Tazewell County found that a
landfill at the site proposed would not be so located due to the
effect on the value of the property of a Mr. Ricky
D,
Dodd, who
is the only residential property owner immediately adjacent to
and abutting the subject property.
It is the Board’s opinion that
this
is the sort of situation the Legislature had in mind when it
created the criteria pertaining to the compatibility with and
effect on the value of the surrounding property.
Ill. Rev.
Stat.
1981, Ch 111½, par. 39,2(a)(3).
At the County’s February 18,
1982 hearing, Waste Management
presented a real estate appraisor who, after evaluating every
parcel of land adjacent or in proximity to the Waste Management
and other landfill sites in the surrounding area,
found no
instance of a downward movement or negative effect in the value
of the properties
(R.
140,
145),
However, Waste Management
acknowledged the Dodd situation in the record and agreed to
purchase Mr,
Dodd’s property at its equitable valuation.
Indeed,
in the initial granting of site approval on February 18,
1982,
Tazewell County conditioned the approval with such a purchase of
Mr.
Dodd’s property,
The Board’, therefore, finds that compensation
by Waste Management of the subject property would have resulted
in an affirmative decision by Tazewell County on that issue.
With regard to the issue of whether or not the plan of
operation for the facility is designed to minimize the danger
to the surrounding area from fire, spills or other operational
accidents, Tazewell County found in the affirmative so long as no
hazardous waste,
as that material
is defined by the federal govern-
ment,
is accepted at the facility.
Waste Management has stated
its agreement with that condition (Tazewell County Record,
February
18,
1982,
28, 245),
Notwithstanding this agreement, the Board finds that the
issue of hazardous wastes was not before Tazewell County at this
time or in this Petition and the County does not need to condition
its finding with a disclaimer prohibiting disposition of hazardous
wastes.
It is obvious that review of the public health, safety
and welfare impacts
of a site due to its design,
location,
and
proposed operation of
the facility and the danger to the
surrounding area from fire,
spills or other operational accidents
can only be conducted by a county board with an awareness of the
potential use of a landfill: proposed receipt of municipal,
47-491
8
non—hazardous special
or hazardous special wastes,
The Board,
therefore,
finds
that siting approval by a county board for a
proposed
landfill constitutes approval of the landfill for depo-
sition of wastes classified as non—hazardous special or hazardous
special by the
federal government or the State of
Illinois only
as specifically
stated
in the approval,
and not otherwise.
(See
P,A. 82-682).
A use which is not specifically approved by the
local authority must he considered denied,
and therefore appealable
to the Board, which will then review the actual decision record.
If it were otherwise,
all petitions for landfill siting approval
would necessarily have to be reviewed at a level consistent with
the deposition of hazardous special wastes,
Therefore, the County
did not need the condition prohibiting deposition of “hazardous
wastes” when it found that the plan of operations
for this facility
is designed to
minimize the danger to the surrounding area from
fire,
spills, or other operational
accidents,
The Board
finds
that in deleting this condition as unnecessary, approval was given
by the Tazewell County Board to the operational plan as related to
disposal of non—hazardous special wastes.
Tazewell County found that the facility is necessary to
accommodate waste needs of the area it is intended to serve but
is not necessary to accommodate waste generated and coming from
outside the State of Illinois.
Even apart from probable conflicts
with the Commerce Clause of the Constitution of the United States,
Public
Act 82—682 simply does not give Tazewell County the
authority to deny approval solely based on its desire to prohibit
out of state waste.
It is clear from the record that the primary
area that Waste Management intends
to serve with the proposed
expansion accommodates that area’s needs,
In addition, there is
no indication that there is any intention to serve areas outside
the State.
Possible acceptance of some wastes generated outside
the surrounding areas would not constitute authority for Tazewell
County to define that the facility as not necessary
‘to accom-
modate the waste needs
of the area
it is
int.ended to serve.
In
considering the record and Tazewell County’s own statements
concerning the issue, the Board finds the facility is necessary
to accommodate the waste needs of the area
it is intended
to
serve.
Having reviewed five of the six criteria of review set forth
in Public Act 82—682, the Board now turns to the sixth and final
issue which is by far the most hotly contested and difficult.
This issue is whether ‘~the facility
is
so designed, located and
proposed to be operated that the public health,
safety and welfare
will be protected’.
(III.
Rev.
Stat,
1979,
Ch.
111½, par.
39.2).
Tazewell County found, with respect to this issue, that the
facility is not so designed, located and proposed to he operated
so that the public health, safety and welfare will be protected
inasmuch as the applicant intends to receive and dispose of
special waste.
In addition, Tazewell County found that even
absent the special waste, certain conditions would have to be im-
posed in order to make an affirmative finding.
(It should be noted
that
in
its written disapproval
of March 24,
1982, the County did
47-492
9
not distinghish between the hazardous and non—hazardous special
wastes.)
These conditions were contained
in subparagraphs a
through g of paragraph
2 on page
4 of Tazewell County’s decision
of April
19,
1982.
Subparagraphs a through
f
concern the technical
aspects and procedures in the design and construction of the land-
fill itself,
and subparagraph g calls for a
$20 million certificate
of insurance to be provided by Waste Management
to insure against
non—sudden occurrence of pollution or other adverse environmental
impacts.
Waste Management argues that Tazewell County is without
statutory authority or jurisdiction to deny site location approval
on the basis of the acceptance or non—acceptance of special waste.
The Board disagrees.
Section 39.2 of the Act specifically requires
approval by local authorities for the site location suitability
for each new regional pollution control facility.
Under Section
3(x) of the Act, Definitions,
“regional pollution control facility”
and more specifically “new regional pollution control facility”
is
defined, inter alia,
as “a permitted regional pollution control
facility requesting approval to store, dispose of, transfer or
incinerate, for the first time,
any special or hazardous waste.”
This definition of regional pollution control facility was added
by the same Act that created Section 39.2.
It seems clear that the
Legislature intended local review to include not only review of the
site’s suitability but, in addition, intended that such review be
made reflecting the particular level of waste to be stored in the
facility.
It
is reasonable that a local authority might review,
for instance, the condition of access roads and the surrounding
residences at quite a different level of concern for a
landfill
proposed to accept hazardous special waste than one proposed to
accept only municipal,
landscape, and demolition waste.
The same
argument would apply for non—hazardous special waste.
Clearly
the right to review the suitability of a permitted site upon the
first application for a special or hazardous waste permit would
include the right to review a proposed site with respect
to
whether non—hazardous special or hazardous special wastes are
proposed to be accepted.
Section 3(x)(3) of the Act, as previously quoted, calls for
approval by local authorities when a facility requests a permit
to handle special or hazardous wastes for the first time.
Since
special and hazardous wastes are defined groups, the Board inter-
prets that section to require approval by local authorities only
when
it is proposed to accept a special or hazardous waste in a
facility that has never handled such waste
in any form previously.
This means that the local authorities would have a chance to
review the site with respect to the special or hazardous wastes
only once and not each time a new special or hazardous waste
stream permit was requested.
The logic of this interpretation
seems obvious since to allow the local
authorities review each new
waste stream would virtually paralyze the system with respect to
special and hazardous wastes and would anticipate the ability of
the local authorities to differentiate between individual types
of non—hazardous special and hazardous special wastes,
a highly
47-493
10
detailed and technical consideration.
The Board has previously
held that siting approval by a local authority for a proposed
landfill does not constitute approval
of the landfill for
deposition of
any waste classified as non-hazardous special or
hazardous special wastes
b~’the federal government or the State
of Illinois unless the decision specifically states otherwise.
It follows that siting approval for a proposed landfill granted
pursuant to a public hearing which considered the non—hazardous
special or hazardous special nature
of materials proposed to be
accepted and which approval specifically states that it is an
approval for such acceptance will
be sufficient as site approval
of a new regional pollution control facility
as defined in Section
3(x)(3) of the Act.
Having found that Tazewell County has the right to review
the proposed site with respect to non—hazardous special wastes,
the Board finds that the record does not support Tazewell County’s
finding that the facility is not so designed,
located and proposed
to be operated so the public health, safety and welfare be
protected inasmuch as the applicant is authorized to receive and
dispose of non—hazardous special wastes.
It is clear from the
record that Tazewell County came to this conclusion due to concern
that the proposed landfill might leak,
and that the non-hazardous
special wastes might find their way down through the intervening
layer of clay and into the Sankoty Aquifer,
and eventually affect
local drinking water supplies which,
for the most part, are
obtained from that aquifer.
This situation concerns the design and construction of the
landfill and the underlying geology and hydrology, rather than
the site itself.
These highly technical issues have historically
been the purview of the Illinois Environmental Protection Agency
(Agency) under the Act.
When the Legislature enacted Public Act
82—682, its intent was to give local authorities the power to
review the effect of the proposed landfill on the immediate area
with regard to the six expressed criteria.
There was no intent
to give the local authorities concurrent jurisdiction with the
Agency to review highly technical details of the landfill design
and construction.
The legislative history of the statute reveals the separation
of review criteria between the local authorities and the Agency.
During debate in the House of Representatives on June 17,
1981,
sponsor Representative Breslin stated,
after reviewing the
criteria to be applied by the local authorities,
“They are not to
make technical decisions as to the suitability of the site,
rather
that power still
lies in the Environmental Protection Agency.”
The local authorities may address the health and welfare of its
citizens with regard to the general
location of the site and
effects such as runoff and flooding,
road litter, potential noise,
disposition of landfill gas, and especially final configuration
of the site with respect to ultimate potential uses.
47-494
11
Waste Management presented a number of highly qualified
individual~who testified concerning the six criteria to be
considered by Tazewell County.
The evidence was convincing and
for the most part unrebutted with regard to the areas of review
that are reserved to the local authorities by the Act.
Indeed,
at the first hearing held on February
18,
1982,
Tazewell County
was convinced of the suitability of the site,
as witness its
initial decision.
The Board therefore finds that based on the
record before Tazewell County, the negative finding concerning
the public’s health,
safety and welfare
is not warranted.
Subparagraphs a through
f of Conditions
Two
of the Tazewell
County decision concerning public health, safety and welfare
address highly technical issues and are beyond the authority of
Tazewell County’s review.
Subparagraph g of the same condition
concerns a $20 million certificate of insurance against non—sudden
occurrence of pollution or other adverse environmental impacts.
However, how this figure was determined is not in the record.
Nevertheless, Waste Management has offered to provide such
certificate of insurance.
(Tazewell County Board, March 24,
1982,
p.
75.)
CONCLUSIONS
Considering the foregoing,
the Board finds that the facility
siting approval should have been granted by Tazewell County and
will so rule.
Since Tazewell County has the authority to impose
conditions on such approval and since the record in this case
contains conditions Tazewell County would like to have imposed,
the Board will impose such of those conditions as are found to be
reasonable or agreed to by Waste Management.
Specifically, the
Board will condition the approval on the purchase of the Dodd
property and purchase of insurance as agreed to by Tazewell County
and Waste Management at the February 24, and March 29, 1982 public
hearings.
There is yet another collateral
issue to be considered by the
Board in this matter.
That concerns admission of evidence at the
adjudicatory hearing before the Board.
Section 40.1 of the Act
provides
in no uncertain terms that the Board is not to conduct
a
de novo hearing on appeals of site location suitability decisions.
The section states that hearing shall be based exclusively on the
record before the County Board and that no new or additional
evidence in support or in opposition to the decision of the County
Board shall be heard.
It calls for the Board to consider the
written decision and the reasons for the decision under review,
the transcribed record of the hearing, and the fundamental fairness
of the procedures used to conduct the hearing.
The statute,
in
effect, causes the hearing before the Board to be basically on the
subject of the fundamental
fairness of the procedures used
in the
local authority’s hearing.
For example, evidence of restricted
accessibility to information,
lack of opportunity to
testify,
rejection of evidence, notice problems, and other such issues are
47-495
12
legitimate subjects for the presentation of evidence at
the
adjudicatory hearing.
New or additional evidence in support of or
in opposition to the Petition shall not be heard at this hearing.
The Board therefore rejects the offers of proof presented in the
July 30,
1982 motion of Intervenor East Peoria,
The Board notes with appreciation the involvement of the
Intervenor and the citizens of the surrounding communities.
Although the final result herein may not reflect the desires of
some of the participants, they may be confident that their
participation insured a thoughtful and very careful consideration
of this matter.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
It is the Order of the Pollution Control Board that the site
location suitability for expansion of the Waste Management of
Illinois,
Inc.
landfill known as the Tazewell County Landfill
located in Tazewell County,
Illinois
is approved subject to the
following conditions:
1.
Approval is granted only for municipal waste and
non—hazardous special waste.
2.
Waste Management of
Illinois, Inc.
shall purchase,
at its equitable evaluation,
the property identified
as belonging to Mr,
Ricky
D.
Dodd.
3.
Waste Management of Illinois,
Inc. shall furnish,
to the County Board of Tazewell County,
Illinois,
a certificate of insurance in the amount of $20
million insuring against non—sudden occurrence of
pollution or other adverse environmental impacts.
IT IS SO ORDERED.
Board Chairman J, Dumelle dissented,
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
of the Board was adopted on the
~
day of
~
1982
byavoteof
4’-’J
.
/
I
~?FJ~//
Christan L, Moffet~,~Clerk
Illinois Pollution Control Board
47-496
