ILLINOIS POLLUTION CONTROL BOARD
January 23, 1997
CITIZENS OPPOSED TO ADDITIONAL
LANDFILLS and HARVEY PITT,
individually and as a member of Citizens
Opposed to Additional Landfills,
Petitioners,
v.
GREATER EGYPT REGIONAL
ENVIRONMENTAL COMPLEX a/k/a
GERE PROPERTITES, INC., and the
PERRY COUNTY BOARD OF
COMMISSIONERS,
Respondents.
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PCB 97-29
(Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by J. Yi):
On August 9, 1996 the petitioners, Citizens Opposed to Additional Landfills
(“C.O.A.L.”) and Harvey Pitt, individually and as a member of C.O.A.L., pursuant to
Section 40.1 of the Environmental Protection Act (Act) filed a petition for review. (415 ILCS
5/40.1(1994).) They appealed the Perry County (County) decision of July 9, 1996 granting
local siting approval for a pollution control facility to the Greater Egypt Regional
Environmental Complex a/k/a Gere Properties Inc. (G.E.R.E.). Petitioners requested the
Board to reverse the County’s decision on the grounds that the County lacked jurisdiction, that
the proceeding before the County was fundamentally unfair, and that the decision of the
County was against the manifest weight of the evidence concerning the challenged criteria of
Section 39.2 of the Act. (415 ILCS 5/39.2 (1994).)
On December 5, 1996, for the reasons stated in the Board's opinion and order, the
Board found that the County had jurisdiction to hear the application. However, we also found
that the proceeding before the County was fundamentally unfair. As a result of these findings
the Board did not reach the third issue concerning the manifest weight of the evidence of the
challenged statutory criteria, and instead reversed and remanded the matter for further hearings
consistent with our order.
On January 6, 1997, the County filed a motion for clarification of our December 5,
1996 order. The County states that the Board ordered at a minimum, that the County shall:
1.
Conduct one or more public hearings to present the questions asked by the
County and the answers provided or any discussions that took place between
them, and allow a public comment period of at least 30 days. Provide public
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notice of the hearing in accordance with the requirements of Section 39.2(d) of
the Environmental Protection Act (415 ILCS 5/39.2(d)). At hearing, allow the
public to respond to the questions of the County and G.E.R.E.’s responses to
those questions.
2.
The County board shall render a new decision based upon the record in this case
which will include the information acquired during the public hearing and
comment period.
3.
The County board shall vote and render its decision no later than 120 days after
receipt of this order.
The County states that"[u]pon reviewing said Order, it remains unclear as to which party has
the burden of going forward with the evidence at the remanded hearings." (Mot. at 2.) The
County requests the Board to vacate the December 5, 1996 order and enter a new order
clarifying who has the burden of bringing forth evidence at the remanded hearings.
The Board grants the County's motion for clarification. The Board found based on the
testimony of Chairperson Karnes that the County requested its attorney to contact G.E.R.E.
after the close of the 30-day public comment period, that those contacts involved the placement
of conditions on the County’s approval, and that
ex parte
contacts occurred that resulted in the
fundamental unfairness. The Board is remanding this matter back to the County to conduct
one or more public hearings to place on the record the questions asked by the County and the
answers provided by G.E.R.E., and any discussions that took place between them, and finally
to allow a public comment period of at least 30 days. Specifically at such hearings the County
shall ask the applicant, G.E.R.E., the same questions which it asked that were the basis of the
ex parte
contacts and G.E.R.E. shall respond with the same answers it gave to the County
when those questions were originally posed. Additionally, participants may present evidence
concerning the conditions that directed G.E.R.E. to: perform a feasibility study of increasing a
roadway, raise the berm to fifteen (15) feet above the 100 year flood plain, develop a
geotechnical study, perform measures to secure the slope stability on the west edge of the fill,
take steps to address the compressibility of subsurface materials, perform monthly water
sampling on the site, and require that vehicles exiting the site be cleaned before leaving; all of
these concern the criteria of Section 39.2 of the Act.
CONCLUSION
The Board's order of December 5, 1996 is vacated and replaced with the following
order.
ORDER
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The July 9, 1996 decision of the Perry County Commissioners (county board granting
siting approval) to approve G.E.R.E.’s application is hereby vacated and remanded because
the proceeding below was fundamentally unfair. At a minimum, the County Board shall:
1.
Conduct one or more public hearings to place on the record the questions asked
by the County and the answers provided by G.E.R.E., and any discussions that
took place between them, and finally to allow a public comment period of at
least 30 days. Specifically at such hearings the County shall ask the applicant,
G.E.R.E., the same questions which it asked that were the basis of the
ex parte
contacts and G.E.R.E. shall respond with the same answers it gave to the
County when those questions were originally posed. Participants shall have the
opportunity to respond to those questions and answer and to present evidence
concerning the added conditions requiring to: perform a feasibility study of
increasing a roadway, raise the berm to fifteen (15) feet above the 100 year
flood plain, develop a geotechnical study, perform measures to secure the slope
stability on the west edge of the fill, take steps to address the compressibility of
subsurface materials, perform monthly water sampling on the site, and require
that vehicles exiting the site be cleaned before leaving; all of these concern the
criteria of Section 39.2 of the Act;
2.
Provide public notice of the hearing in accordance with the requirements of
Section 39.2(d) of the Environmental Protection Act (415 ILCS 5/39.2(d));
3.
Render a new decision based upon the record in this case which will include the
information acquired during the public hearing and comment period; and
4.
Vote and render its decision no later than 120 days after receipt of this order.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the _____ day of ___________, 1997, by a vote of
______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board