ILLINOIS POLLUTION CONTROL BOARD
February 20, 2003
VILLAGE OF SOUTH ELGIN,
Complainant,
v.
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Respondent.
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PCB 03-106
(Citizens Enforcement - Land)
ORDER OF THE BOARD (by N.J. Melas):
On January 16, 2003, the Village of South Elgin (Elgin) filed a complaint (Comp.)
against Waste Management of Illinois Inc. (Waste Management) asking the Board to enforce two
special conditions of a landfill siting approval granted to Waste Management by the Kane
County Board on September 13, 1988, and incorporated by reference into Waste Management’s
permit
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for expansion of the Woodland site (Woodland III permit). Two days earlier, on January
14, 2003, Waste Management filed a petition for review of the Kane County Board’s decision to
deny Waste Management’s request for siting approval of a proposed waste transfer facility
(Woodland Transfer Facility).
See
Waste Management of Illinois, Inc. v. County Board of Kane
County, PCB 03-104. In its petition for review, Waste Management claims: (i) the siting
process and procedures the Kane County Board used in reaching the decision were
fundamentally unfair; and (ii) Kane County’s denial of siting approval, and the finding that
certain statutory criteria were not met, were against the manifest weight of the evidence.
On January 16, 2003, along with the enforcement action, Elgin filed a motion to
consolidate this action with Waste Management’s petition for review. On January 31, 2003,
Waste Management filed an objection to Elgin’s motion to consolidate.
The Board denies Elgin’s motion to consolidate because the two actions involve different
burdens of proof that prohibit consolidation of the two proceedings. Waste Management had 30
days after it received service of the complaint to file a motion alleging this complaint is
duplicative or frivolous (35 Ill. Adm. Code 103.212(b)). Waste Management filed a motion to
dismiss this complaint as frivolous on February 18, 2003. The Board has not yet made this
determination nor accepted this complaint for hearing.
BACKGROUND
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Issued by the Illinois Environmental Protection Agency
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The Woodland Landfill site is 213 acres and was established as a pollution control
facility in 1976. Initially, the Illinois Environmental Protection Agency (Agency) permitted the
use of 55 acres for landfill (Woodland I). In 1982, the Agency permitted 48 more acres
(Woodland II).
In 1988, Waste Management applied to extend the life of the landfill for an additional 15
years by working the area between Woodland I and II (Woodland III application). The Kane
County Board adopted Resolution 88-155 approving, with conditions, the Woodland III
application. One of the conditions required that the site be developed as a passive recreation
park once it was full and closed.
In June 2002, Waste Management applied for approval to site a transfer facility on the
Woodland site. This time the Kane County Board denied Waste Management’s application. As
noted above, Waste Management filed a petition with the Board to contest the siting denial on
January 14, 2003.
BURDEN OF PROOF
Section 101.406 of the Board’s procedural rules provides that “the Board will not
consolidate proceedings where the burdens of proof vary.” 35 Ill. Adm. Code 101.406. In an
enforcement action, the complainant must prove that the respondent violated the Act or the rules,
regulations, permits or terms and conditions by a preponderance of the evidence. People v.
Fosnock, PCB 41-1, slip op. at 19 (Sept. 15, 1994). A proposition is proved by a preponderance
of the evidence when it is more probably true than not. Nelson v. Kane County Forest Preserve,
PCB 94-244 (July 18, 1996). Alternatively, a petitioner challenging a local siting denial must
show, based only on the evidence in the record, that the local authority’s findings were against
the manifest weight of the evidence. CDT Landfill Corp. v. City of Joliet, PCB 98-60, slip op. at
9-10 (March 5, 1998). A decision is against the manifest weight of the evidence if the opposite
result is clearly evident, plain, or indisputable from a review of the evidence.
Id
. at 10.
Waste Management argues that its petition for review and Elgin’s enforcement action are
governed by differing burdens of proof and, therefore, consolidation under Section 101.406 of
the Board’s procedural rules would be improper. The Board finds the burdens of proof regarding
petitions for review and enforcement actions are clearly different.
Waste Management also contends that enforcement actions and petitions for review are
governed by fundamentally different procedural rules thereby making consolidation of the
petition for review proceeding with the enforcement action impracticable and inconvenient. The
Board agrees with Waste Management that because the Board must issue a decision on petitions
for review within 120 days whereas enforcement actions have no decision deadline, the differing
procedural rules make consolidation impractical and inconvenient.
CONCLUSION
The Board denies Elgin’s motion to consolidate this proceeding with Waste
Management’s petition for review, PCB 03-104.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 20, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
