RECE~V~I~
CLERK’S OFflCE
.JLtN
102003
—
BEFORE THE
ILLiNOIS POLLUTION CONTROL BOARD
SlATE OF ILUNOIS
Pollution
Control Board
LANDFILL
33,
LTD.,
)
)
Petitioner,
)
)
v.
)
PCB No. 03-43
)
EFFINGHAM COUNTY BOARD and
)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
STOCK & COMPANY, LLC,
)
)
Petitioner,
)
)
v.
)
PCB No.
03-52
)
EFFINGFIAM COUNTY BOARD and
)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
RESPONDENT SUTTER SANITATION
SERVICES INC.’S
INITIAL POST-HEARING BRIEF
NOW COMES Respondent, SUTTER
SANITATION SERVICE, INC., by and through
its attorneys, Sorling, Northrup, Hanna, Cullen &
Cochran, Ltd., David A. Roif and Charles J.
Northrup, of counsel, and pursuant to the December 19, 2002 Order of the Hearing
Officer in this
matter hereby submits its
Initial Post-Hearing Brief.
I.
INTRODUCTION
This matter went to hearing before a hearing officer of the Pollution Control
Board
(“PCB”) on December
19, 2002.
At the conclusion ofthe hearing the PCB Hearing Officer
ordered simultaneous initial
briefs on January 10, 2003.
In that Sutter Sanitation Services, Inc.
1
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on Recycled Paper
(“Sutter”) is aRespondent in this matter (along with the Effingham County Board), it will
attempt
in this Initial Brief to identify arguments that may be raised by the two Petitioners.
This
attempt will necessarily be based upon the limited information provided in the Petitioners’
Petitions and any evidence produced at the December
19, 2002 PCB hearing.
Any
failure to
address or respond in this initial Brief to
issues raised by the two Petitioner’s in their initial briefs
should not be viewed in any way as a waiver or acceptance ofthose issues.
Those
issues, if any,
will necessarily be discussed in Sutter’s Response Briefdue
on January
17, 2003.
II.
FACTUAL OVERVIEW
On April
19, 2002 Sutter submitted an application for local siting approval of a proposed
solid waste transfer station (“the Application”) to the Effingham County Board.
On the evening
of August 14, 2002,
after proper notice,
a public hearing was held before the Effingham County
Board.
Sutter participated, as did Petitioners Landfill 33
and
Stock.
In addition,
members of the
Effingham County Board also asked questions.
Suffer called 4 witnesses; David Kimmle (Hurst-
Roche Engineers); Mark Reitz (Hurst-Roche Engineers); James Bitzer (independent real estate
appraiser); and Tracy Suffer (President,
Sutter Sanitation Services, Inc.).
Petitioner Landfill 33,
through its
counsel, as well as Petitioner Stock cross examined several ofthe witnesses.
Petitioner Landfill 33
presented three witnesses in opposition to the Application:
Brian Hayes
(Landfill 33
Manager); Don Sheffer (consultant for Landfill 33); and Bryan Johnsrud (consultant
for Landfill 33).
Following the close ofthe hearing, a 30 day written public comment period was
established.
Sutter timely filed comments as did both the Petitioners in this case:
Landfill
33
and
Stock.
The public comment period closed on Friday,
September 13, 2002.
The Effingham
County Board met on Monday, September
16, 2002
to
discuss
and
vote on the Application.
At
2
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the September-i6, 2002 meeting, the Effingham County Board approved the Application by a
vote of9
-
0 (C. 434).
On or about October 8,
2002, Landfill
33 filed its Petition for Review contesting the
Effingham County Board’s decision.
An Amended Petition was filed on October 17,
2002.
In
the Amended Petition, Landfill 33
alleged that the Effingham County Board’s decision with
respect to the statutory siting criterion established in the Illinois Environmental Protection Act
was against the manifest weight ofthe evidence.
Specifically, Petitioner Landfill
33 contested
siting criteria
1
(that the proposed facility is necessary to accommodate the waste needs ofits
intended service area), 2 (that the proposed facility is to be designed, located and operated so that
the
public health,
safety and welfare are
protected),
5
(that the operational plan for the proposed
facility will minimize the danger from fire, spills, and other operational accidents to the
surrounding area), and
8 (that the proposed facility be
consistent with the solid waste
management plan of the county).
In addition, Petitioner Landfill 33
also generally alleged that
the proceedings before the Effingham County Board were fundamentally unfair.
However, no
specific aspect of the proceeding was identified as being fundamentally unfair.
On or about October
16, 2002, Petitioner Stock filed its Petition for Review also
contesting the Effingham County Board’s decision.
In its Petition,
Stock claimed the Effingham
County Board’s decision was against the manifest weight ofthe evidence on five ofthe statutory
criteria:
1, 2,
3
(that the proposed facility is located so as to minimize
the effect on the value of
the surrounding property),
5, and
8.
In addition, Petitioner Stock alleged that the proceedings
were fundamentally unfair in three specific aspects.
Petitioner Stock claimed that:
a transcript of
the Effingham
County Board proceeding was not made available to it; there was an undisclosed
3
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familial relationship between Duanne Stock (the representative of Stock and the participant at the
Effingham County Board hearing) and an Effingham County Board member; and that the
Effingham County Board was biased in that Tracy Suffer had threatened the Effingham County
Board with cessation of a recycling service that Sutter was voluntarily providing to area
residents.
The two
Petitions in this case were consolidated by the PCB and a hearing date was
established.
On December
19,
2002, at the PCB hearing, two citizens made oral comments:
Nancy Deters and Lloyd Stock.
Petitioner Stock, represented by counsel, called one witness,
Duanne Stock.
Suffer did not call any witnesses.
Petitioner Landfill 33 attempted to call Tracy
Suffer as a witness, but
Sutter raised an objection which was sustained by the Hearing Officer.
However, an offer ofproofwas made by Petitioner Landfill 33
in the form oftestimony from
Tracy Sutter.
At the conclusion ofthe hearing a briefing schedule was agreed to, and a “Hearing
Report” was filed by the Hearing Officer on December 30, 2002.
III.
ARGUMENT
A.
Fundamental Fairness
1.
Landfill 33
Petition
As noted above, Petitioner Landfill 33
made no specific allegation offundamental
unfairness
in its Petition.
Similarly, Petitioner Landfill 33
identified no specific allegation of any
issue offundamental fairness in its Response to Interrogatories issued by
Suffer.
As such, Sutter
can not at this time address any potential fundamental fairness arguments that Petitioner Landfill
33
may fashion from the record.
Such arguments must necessarily be addressed
in Suffer’s
Response Brief.
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Notwithstanding this reservation to
address Petitioner Landfill 33’s fundamental fairness
issues
in its Response Brief,
Suffer believes that any such fundamental fairness arguments raised
by Petitioner Landfill 33
should be barred.
First, the PCB procedural rules require that the
spec~Ic
grounds for a siting appeal must be included in a Petition.
35 Ill.Adm.Code
107.208(c)(This
section provides that a Petition must include “a specification of the grounds for
the appeal, including any allegations for fundamental unfairness...”).
As noted above, Petitioner
Landfill 33
did not allege any specific grounds offundamental unfairness, it merely noted that
the proceedings were fundamentally unfair.
(This is in sharp contrast to Petitioner Stock’s
Petition which cites case law and facts in an effort to
establish some element offundamental
unfairness.)
Second, Petitioner Landfill 33
failed to identify any specific facts demonstrating
fundamental unfairness in response to
Sutter’s Interrogatories specifically seeking such
information.
Petitioner merely responded by saying that such facts were included in the record.
This Interrogatory Response is clearly inadequate and serves only as a refusal to identify the facts
ofany claim of fundamental unfairness.
In addition, this refusal to
identify the facts supporting
any claim of fundamental unfairness is
a breach ofa party’s obligations of full disclosure under
Supreme Court and
PCB Rules.
See S.
Ct.
Rule 213; 35
Ill.Adm.Code
10 1.620.
As such, a
sanction ofbarring the presentation ofclaims based upon the unidentified information is
appropriate.
See
35
Il1.Adm.
Code
101 .800(3)(”The offending person may be barred from
maintaining
any particular claim, counterclaim, third-party complaint, or defense relating to that
issue;”)
The cumulative
effect of these non-disclosures has been to significantly prejudice Sutter.
As
it stands, Petitioner Landfill 33
has never identified any issue of fundamental unfairness.
Nor
has it even identified any fact that might support
an allegation implicating fundamental
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unfairness.
If-Petitioner Landfill 33
had disclosed its specific allegations offundamental
unfairness, either in its Petition or Interrogatory Responses, Suffer would have been able to
gather evidence in rebuttal or even undertake
additional discovery such as depositions.
By not
disclosing the basis ofany fundamental fairness allegation, these discovery tools have been
denied Suffer.
Accordingly, Petitioner Landfill 33
should be barred from raising any
fundamental fairness issues.
2.
Stock Petition
a.
Transcript Availability
As noted above, one of the arguments raised by Petitioner Stock was that the proceeding
was fundamentally unfair because a copy ofthe Effingham County Board hearing transcript was
not available when its representative, Duane Stock, requested a copy from the Effingham County
Clerk.
The PCB has held that under Section
39.2 of the Illinois Environmental Protection Act,
where a transcript is on file with a local
siting authority it must clearly be made available to the
public.
Spill et al v.
City ofMadision et al., PCB No.
96-91, p.
7, (March 21,
1996).
However,
only where the failure to make a transcript available results in prejudice to a party will the PCB
rule that the absence of the transcript has rendered a proceeding fundamentally unfair.
Ich
On
this issue, Petitioner Stock cannot meet its burden.
As an initial matter, the facts of Petitioner Stock’s request to obtain a transcript bear
careful review.
As noted above, the County Board hearing in this matter took place on August
14, 2002.
Petitioner Stock was present and participated.
The 30 day public comment period
closed on September
13, 2002.
Petitioner Stock submitted a public comment on September 4,
2002.
On September 16, 2002, the County Board deliberated
and made its decision approving
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the Application1
It was not until October 2, 2002,
16 days after the County’s decision,
that
Petitioner Stock made any attempt to obtain a copy ofthe transcript
(PCB tr. 44).
That contact
was a telephone call to the Effingham County Clerk (Id.).
Petitioner Stock was told that
Effingham County did not have a copy ofthe transcript, but that he should contact Sutter’s
attorneys (PCB tr.
52).
However, at no time did Petitioner Stock make such a request (PCB tr.
52).
Furthermore, and despite being represented by counsel
at the time, at no time between
October 2, 2002
and November
25,
2002 (when Petitioner Stock did obtain a copy of the
transcript) did Petitioner Stock make any further inquiry concerning the transcript to the
Effingham County
Clerk, the Effingham County Board offices, or the State’s Attorney (PCB tr.
47
-
48,
50
-
51).
These facts clearly demonstrate that Petitioner Stock suffered no prejudice by
not having a copy of the transcript.
The fact that he did not even ask for a copy
until after the
Effingham County Board had made its decision demonstrates he suffered no prejudice.
Obviously he felt he could adequately participate in the hearing and submit public comment
without having a copy ofthe transcript.
In fact, Petitioner Stock makes no allegation that he was
prejudiced during the proceeding (ofcourse there would be no contemporaneous transcript
during the hearing itself) or the public comment period by the absence of the transcript.
His only
concern was that the transcript was not available for his preparation of the Petition for Review
(PCB tr.
21).
However, as he did timely file a Petition identifying a number ofgrounds for
appeal, and did participate in the PCB hearing, no prejudice has occurred.
Petitioner Stocks
attempt to show any prejudice must fail by his own actions in not even asking for a transcript
until the after the Effingham County Board rendered its decision, and failing to
follow up as
advised by the County Clerk’s
office to obtain a transcript.
As such, to the extent any prejudice
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is present, it is -ofStock’s own making.
Petitioner Stock should not rewarded for his dilatory
conduct.
Notwithstanding these egregious facts, Petitioner Stock cites Spill et al.
V.
City of
Madison and Metro-East, LLC, PCB No.
96-91,
1996 WL
154321
(Ill.
PCB, March 21,
1996)
for the proposition that the unavailability of a hearing transcript renders a siting proceeding
fundamentally unfair.
This case does not support such a broad proposition.
It certainly does not
sanction a holding of fundamental unfairness where,
as is undisputed in this case, no one
requests
a copy of the transcript until after the close of the public comment period and,
indeed, after the
siting body has made its decision.
In~pffl, the applicant sought to obtain siting approval for a waste incinerator.
~pffl, PCB
No.
96-9 1
at p.
3.
A public hearing was held on the application beginning onJuly 25,
1995.
~pffl,PCB No. 96-9 1 at p.
4.
The hearing, which took place over a four day period,
was “long
and arduous”
and resulted in 49 hours oftestimony and a transcript totaling over
1800 pages.
ifi, PCB No. 96-9 1
at p.
8.
Following the four day hearing, the siting body allowed for a 30
day public comment period.
The hearing was transcribed by August
14,
1995,
several days
within the public comment period.
However, during the public comment period, two petitioners
called the siting body to
obtain a copy of the transcript and were told none
was available.
~pffl,
PCB No. 96-9 1
at p.
7.
In the absence of a transcript, those petitioners claimed they could not,
and ultimately did not, file any public comments.
~pffl, PCB No. 96-91
at p.
7.
Under these
facts, the PCB ruled that the petitioners were prejudiced and as such the hearing was
fundamentally unfair.
In reaching this result, the PCB noted the length and complexity ofthe
hearing as well as the fact that the siting body was apparently in possession ofthe transcript
(and
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a prior commitment by the siting body to make a copy of the transcript available at its public
office) but failed to produce it.
~pffl, PCB No.
96-9 1
at p.
8.
The facts presented in ~pffl are not analogous to this matter and therefore do not support
Petitioner Stock’s argument.
Unlike ~ffl,
the hearing at issue in this case was neither “long nor
arduous.”
In fact, it only took about three hours and 169 pages oftranscript, not the 49 hours and
1800 pages at issue in ~pffl.
Furthermore, unlike ~pffl,both Petitioners in this case filed public
comments.
Also unlike ~pffl, Petitioner Stock (nor anyone else for that matter) did not even
request a copy ofthe transcript until
after
the public comment period had closed.
Also, in ~pffl,
there was no evidence that any ofthe Petitioners asked the applicant’s counsel for a copy, which
was done in this case, and then simply not pursued.
Petitioner Stock’s claims ofprejudice
and
fundamental fairness should be
rejected.
b.
Bias
-
Familial Relationship
Petitioner Stock also claims that the proceedings were
potentially
affected by bias
stemming from a familial relationship that was not disclosed.
In this matter, the familial
relationship at issue
is that the Petitioner’s representative, Duanne Stock, is a cousin ofone of the
Effingham County Board members, Karen Willenburg.
Nothing other than the existence of this
relationship between Stock and
County Board MemberWillenburg
is alleged.
Such is clearly
insufficient to sustain a claim of bias.
An administrative official, such as county board member in a siting proceeding, is
presumed to be
objective and capable offairly judging a particular controversy. Waste
Management of Illinois
v.
Pollution Control Board,
175
Ill.App.3d
1023,
125 Ill.Dec.
524, 537
(2~
Dist.
1 988)(citations omitted).
Moreover, where an administrative official is acting in an
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adjudicatory capacity, “bias or prejudice may only be shown if a disinterested observer might
conclude that the administrative official had in some measure adjudged the facts as well as the
law ofthe case in advance ofhearing it.”
Waste Management,
125 Ill.Dec. at 538, citing E & E
Hauling. Inc.
v.
Pollution Control Board,
116 Ill.App.3d
586, 71
Ill.Dec. 587
aff’d
107 Ill.2d 33,
89
Il1.Dec. 821
(1985).
No such bias can be shown in this
case, nor in fact has even been alleged,
stemming from the relationship between Petitioner’s representative, Duanne Stock, and County
Board Member Willenburg.
As a preliminary matter, however, it is clear that Petitioner Stock has waived this
argument by failing to raise it at the Effingham County Board hearing.
This issue of waiver has
been discussed before in the context ofdecision maker bias in a siting proceedings.
E &
E
Hauling, Inc.
v.
Pollution Control Board,
107 Ill.2d 33,
89 Ill.Dec.
821
(1985);
Sierra Club et al.
v.
Will County Board et al., PCB No.
99-136, 99-139 (August
5,
1999).
In E &
E Hauling, the
Supreme Court noted:
“Generally, ofcourse, a failure to object at the original proceeding constitutes a
waiver of the right to
raise the issue on appeal (citations omitted).
‘A claim of
disqualifying bias or partiality on the part of a member ofthe judiciary or an
administrative agency must be asserted promptly after knowledge of the alleged
disqualification’
(citations omitted).
The basis for this can be readily seen.
To
allow a party to first seek a ruling in a matter and, upon obtaining an unfavorable
one, permit him to assert a claim ofbias would be improper.”
E & E Hauling, 89 Ill.Dec.
at
823.
This situation is applicable here.
Petitioner
Stock
participated in the Effingham
County Board hearing (PCB
tr.
51).
However, he
did not raise his
relationship with Effingham County Board Member Willenburg (PCB tr.
52).
Petitioner Stock
fLied a written public comment, yet here too, failed to disclose any relationship with Willenburg
(PCB tr. 49).
In fact, at no time prior to filing its
Petition in this case did Petitioner’s
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representative,. Duane Stock, mention to anyone, including
County Board Member Willenburg,
that she should recuse herself (PCB
tr. 51).
Presumably Petitioner Stock was attemptingjust
what the Supreme Court has cautioned against, namely that a participant would hold his cards
just to
see what decision would be rendered and if adverse to his interests, then raise the bias
issue.
This type ofconduct is not acceptable to the Supreme Court and should not be acceptable
to the PCB.
Notwithstanding the waiver of the issue, Petitioner Stock has introduced no facts to
demonstrate that Effingham
County Board Member Willenburg was biased in that she had
prejudged the facts or law ofthe case.
His assertion is only that a “familial relationship” existed.
Petitioner makes no
other assertion.
This is entirely insufficient to
show bias.
Perhaps if
Petitioner Stock could show that County Board Member Willenburg harbored some underlying
family feud with Stock, he might have been able at least to make out a claim of bias.
But he
can
not even do that.
Duane Stock
testified that Effingham County Board Member Willenburg was
a “nice person,” he “very much” gets along with her, and that he does not have a bad relationship
with her (PCB tr. 49
-
50).
Clearly, given these facts, no bias has been shown on the part ofEffingham
County Board
Member Willenburg such that rendered the County Board proceedings fundamentally unfair.
c.
Bias
-
Sutter Recycling
Petitioner Stock claims in its
Petition forReview that the Effingham County Board was a
biased decision maker because Suffer threatened to close a recycling center it had established if
siting was denied.
In its
Petition, Petitioner Stock cited a single statement made by Effingham
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County Board.Member Voelker and recorded
in the County Board minutes.
That statement, in
its entirety, was as follows:
Chairman L.
Gobczynski said the Board will go through each Criterion and take a
roll call vote.
B.
Grunloh Legislative Chairman
said they did not take into
account the vertical expansion of Landfill #33
(29 years) is available to
serve the
needs ofEffingham County.
L.
Waldhoff Building and Grounds Chairman said
that this is a transfer station not a landfill.
Board Member C.
Voelker said
recycling at this
location is
a valuable asset and needed in Effingham County.
See County Board Minutes (C.
432).
No other evidence ofthe claimed “threat” or bias
was produced or alleged by Petitioner Stock.
Presumably, Petitioner Stock will refer to
two
additional aspects of the record to support its claim.
First, Tracy Suffer did testify that without
the transfer station Sutter could not economically continue its voluntary recycling service (C.
190).
Second, during the PCB hearing, a member ofthe public expressed her concern that Suffer
discontinue its recycling efforts if it was not granted siting (PCB tr.
28
-
38).
None of these
items support a finding of bias on the part ofthe Effingham County Board.
As such, Petitioner
Stock’s
claims must be
rejected.
As
noted above, administrative officials are presumed to act objectively and fairly in
judging a particular controversy and bias can only be shown where a decision maker has
prejudged the
facts or law.
This is a significant burden.
Bias has not been demonstrated in
instances where decision makers have gone so far as to publicly voice opposition to landfills in
general, publicly noted favoring recycling over landfills as a waste management alternative, and
identified landfills and incinerators as detrimental to parts ofa county.
Waste Management,
125
Iii. Dec.
at 538.
Here, where Petitioner Stock is arguing that Sutter somehow “threatened” the
Effingham County Board to
approve its Application, the burden on Petitioner Stock is, in effect,
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to establish tha-t Sutter had such control over the “deliberative faculties” of the Board as to
overcome the presumed impartiality ofthe County Board.
Tate et al. v.
Macon County Board
et
al., PCB No.
88-126, p.
8 (December
15,
1988).
As a factual matter, no bias, or even a hint ofbias has been shown.
First, the comment by
Effingham County Board Member Voelker is not an indication that Voelker is acting out offear
of losing Sutter’s recycling services.
It is
merely a statement that recycling is important to
Effingham County.
It certainly does not demonstrate that Effingham County Board Member
Voelkerhas somehow prejudged the facts or the law, nor that he (or the Effingham County Board
as a whole) has lost his “deliberative faculties” in the face ofpotentially losing Suffer’s recycling
service.
Second, the statement by Tracy Sutter that
Suffer could not economically continue its
recycling service if siting were not approved is in no way a threat of any kind.
It is simply a
statement of economic reality.
Furthermore, the record is devoid of any evidence to support
whether or not the Effingham County Board has any interest in having Suffer continue with its
recycling service.
Perhaps another hauler is waiting in the wings to
offer a recycling service?
Perhaps Petitioner Landfill 33
is in such a position?
There is nothing in the record to
demonstrate that Mr.
Suffer’s statement on recycling had any impact at all on the Effingham
County Board.
Third, the statements of Ms.
Deters, a member ofthe public, at the PCB hearing
is
no
evidence ofbias
on the part ofthe Effingham County Board.
Ms.
Deters is not a decision
maker as she does not sit
on the Effingham County Board (PCB tr.
35).
Ms. Deters does not
even live
in Effingham County (PCB tr.
36).
Ms.
Deters is certainly passionate about her cause,
which is
recycling
(PCB tr.
29).
She attended the County Board hearing (PCB tr.
34).
She
attended the County Board meeting when they voted on the Application (PCB tr.
37).
She
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writes
letters tathe editor ofthe local paper
on the recycling issue (PCB tr.
30).
It is therefore
not unreasonable to consider that
her view
ofthis proceeding is about recycling.
However, there
is no evidence that anyone on the Effingham County Board shared her view or opinions,
especially to the extent that holding such views or opinions may have prejudged the law or facts
ofthe case.
Fourth, and perhaps most significantly,
is the recognition by the Effingham County
Board itself that any recycling issues
could not be a part ofthe deliberations on the issue before
it,
namely whetherthe Application satisfied the 9 statutory criteria.
Throughout the proceedings,
Chairman Gobczynski
and State’s Attorney Deters made it clear that the only issues before the
Effingham County Board were the nine statutory criteria.
At numerous times throughout the
proceeding, the limited and focused nature of the proceeding was identified:
“The purpose ofthis hearing is to look at the application for the local siting ofthe
proposed solid waste transfer station for Sutter Sanitation Services, and what
we’re going to do here tonight
is address their application, and we’re going to take
testimony from Suffer Sanitation as far as what they see and feel that they have
done to
meet the various criteria that have been established by the State,
and
we’re going to investigate that, listen to it as a board, and from that point we will
look at questions from the board initially, and then we will
see if we have
additional comments or questions from any parties that might be present that may
be
either in favor or opposition to the proposed sanitation station.”
(Opening Statement by Chairman Gobczynski, C.
128).
“By statute, if the board finds
—
by statute, the county board must make a decision
that one or more of the criteria have not been met.
Ifthe county board believes
that the criteria have been met, they really have no authorization or authority
under the statute to just simply decide they don’t like the idea and they’re going to
vote against it.
The county board has to
follow the nine criteria and make a
determination as to each
--
as to whether or not that criteria has been met by Sutter
Sanitation.”
(Statement by State’s Attorney Deters,
C.
130
-
131).
14
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“I think maybe its appropriate that I make a comment or two.
What were trying to do
here tonight, very clearly and very narrowly,
is to judge this application based on the
criteria before
it.
I would have to say that we have to be careful in the comments in
—
and
opinions as to whether this is a good thing or a bad thing.
Ourjob here is to be very
narrow and
focused, and we will accept written comments as to why these criteria are
—
are good or bad, but I think we have to
be very focused on what we’re doing here tonight,
or this would indeed be
a very long
night for all ofus because we can’t just accept
comments based on
—
on business practices or ethics or routes or even recycling, as much
as those are important issues to
all ofus in our daily life.
So I would just ask that we all
try and focus on
—
on what’s at hand here and the work we have.
And address the
comments
—
or not comments.
Address questions to these criteria, because it’s truly what
we’re here for.”
(Statement by Chairman Gobczynski
C.
225 -226)
“Well, I’m
—
I’m thinking myselfpersonally that
—
and I’ll
—
I’ll defer to the Board’s
decision on this, but to me, I think I said early on the purpose ofwhat we were not here to
do tonight was to
discuss
—
and I’ll look at my notes, because that was three hours ago
and my memory tends to go
a little wacky after 10:00 at night.
But I think we were trying
to
limit the comments to the issues at hand and the criterion, because if not, we’d be here
to
three weeks from Sunday,
and we really wanted to keep the comments germane to
our
purpose at hand.
And an issue of— myselfpersonally, and I can only speak personally
—
the
issue ofrecycling has absolutely nothing to
do with why I’m here tonight.
It’s an
important issue in its right place.
No one is saying it’s
not, particularly me.
However, I
think this is something that has to be judged on its
own merits, and
—
and that’s how I
would prefer to leave that.”
(Statement by Chairman Gobczynski
C.
289
-
290)
Given these admonishments, and the absence of evidence to the contrary, there can be no
question as to whether the recycling issue biased the Effingham County Board.
Finally, this
entire bias argument based upon the recycling issue has been waived.
When the
issue of Suffer
continuing its
recycling service was brought up, neither Petitioner Stock or Landfill 33
objected.
Petitioner Landfill 33
even conceded that it had no concerns with the recycling issue after
Effingham County Board Chairman Gobczynski admonished the Effingham County Board not to
15
Printed on Recycled Paper
consider it.
At_the close ofthe County Board hearing, the following exchange
occurred between
Chairman Gobczynski and
the attorney for Petitioner Landfill 33:
“MR.
HEDINGER:
Thank you, Mr.
Chairman, for allowing us to make that
presentation.
We would request the
--
a slight bit of additional testimony by Mr.
Hayes to
address some of the issues relating to the recycling that Mr.
Suffer
discussed in his testimony, which we didn’t expect to be
a part ofthis case.
Recycling, I think he himself said, really didn’t seem to have anything to
do with
this proposal and yet it is out now, and we would like to
address that if-- if we
might.
I believe this
should just take a couple ofminutes.
MR. GOBCZYNSKI:
Well,
I’m
--
I’m thinking myselfpersonally that
--
and I’ll
-
-
I’ll defer to the board’s decision on this, but to me, I think I said early on the
purpose ofwhat we were not here to do tonight was to discuss
--
and I’ll look at
my notes, because that was three hours ago
and my memory tends to
go a little
quickly after 10:00
at night.
But I thinkwe were trying to
limit the comments to
the issues at hand and the criterion, because if not,
we’d be here to
three weeks
from Sunday,
and we really wanted to
keep the
comments germane to ourpurpose
at hand.
And an issue of-- myselfpersonally, and I can only speak personally
--
the issue
ofrecycling has absolutely nothing to do with why I’m here tonight.
It’s
an important issue in its
right place.
No one’s saying it’s not,
particularly me.
However, I think this is something that has to be judged on its own merits, and
--
and that’s how I would prefer to leave that.
MR.
HEDINGER:
We’d be
more than satisfied with that answer, Mr. Chairman.
That was out understanding as well.
The issue having cOme up, we were prepared
to address
it.
Be we will
--
we will table that, and that’s all we have then.
Thank
you.
(C.
289-290).
Again,
Petitioner Stock has failed to produce any credible evidence that somehow the
Effingham County Board was biased and essentially threatened into approving siting.
What
is
evidenced by the record is that a full and fair hearing on this
matter was conducted by the
Effingham
County Board,
which was then followed by public comment, which was then
followed by
a deliberate and thorough discussion and vote on each ofthe nine statutory criteria.
16
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The record demonstrates that the Effingham County Board’s decision was a considered and
deliberate
decision and not subject to threats ofblackmail as Petitioner asserts.
B.
Statutory Criteria
As the PCB knows, the Illinois Environmental Protection Act (“Act”) provides that a
siting authority shall approve a siting request when nine specific statutory criteria are satisfied.
415 ILCS 5/39.2 (a).
On September
16, 2002, the Effingham County Board determined that
Sutter had satisfied the nine statutory criteria.
Written findings of fact and a Resolution were
adopted by the County Board by
9 -0 votes.
Both Petitioner Landfill 33
and Petitioner
Stock
have asserted in their Petitions for Review that the County Board erred in finding that certain of
these nine criteria were satisfied by Sutter’s proposal.
When reviewing a local siting authority’s decision on the nine criteria, the PCB must
determine whether the local decision is against the manifest weight ofthe evidence.
E.g.
American Bottom Conservancy et al.
v.
Village of Fairmont City et al., PCB No.
0 1-159, p.2,
(October 18, 2001).
A decision is against the manifest weight ofthe evidence if the opposite
result is clearly evident, plain, or indisputable from a review of the evidence. j~ If conflicting
evidence is presented, the PCB can not overturn the decision ofthe local siting authority
simply
because the local authority gave greater weight to certain witnesses and not others. j~ Even if
the PCB could reach a different conclusion than the local siting authority after a review of the
evidence, that does not warrant a reversal.
Id.
The burden ofdemonstrating that the local siting
authority erred is on the Petitioners.
415 ILCS
5/40.1(b);
County ofKankakee et al.
v.
The City
ofKankakee, PCB No.
03-31, 03-33, and 03-35 (consolidated), p.
3
(October 3, 2002).
17
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As noted above, Petitioner Landfill 33
takes issue with the Effingham County Board’s
decision with respect to
criterion
1, 2,
5
and
8.
Petitioner Stock takes issue with criteria
1, 2,
3,
5
and
8.
Respondent Sutter will address these criteria below.
To the extent both Petitipners raised
issues on the same statutory criteria, they will be addressed together.
1.
Criterion
1:
The facility is necessary to accommodate the waste needs ofthe area it is
intended to serve.
Criterion number one requires that the proposed facility be necessary to accommodate the
waste needs ofthe area.
Sutter clearly provided sufficient evidence to
support this criterion.
In
analyzing the need issue,
Sutter reviewed Illinois EPA documents including remaining capacities
ofarea disposal facilities,
as well as the Effingham County waste disposal plan.
With respect to the need issue, the Act requires that there be a showing ofneed, but not
that there be an absolute necessity to accommodate the area’s needs.
Clutts v.
Beasely,
185 Ill.
App.3d 543,
541
N.E.2d 844,
856
(Sth
Dist.
1989).
Rather, such factors as a reasonable
convenience ofexpanding the facility may be demonstrated to satisfy the need criterion.
In fact,
in one recent case, the Village of Fairmont City approved, and was affirmed by the Pollution
Control Board,
the siting of a landfill in area that boasted
3
new or expanded landfills with more
than
100 million cubic yards ofremaining waste capacity and more than 50 years ofremaining
life.
See American Bottom Conservancy et al.
v. Village ofFairmont City et al., PCB No. 01-
159
(October
18, 2001).
Opposition on this criterion came from Landfill 33’s witnesses, primarily Mr.
Sheffer.
First, Mr. Sheffer said that a traditional
needs analysis had not been offered by Suffer Sanitation
(C. 206).
This is incorrect in that
such an
analysis was indeed performed as noted above.
Of
18
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course, Mr. Sheffer failed to offer any such analysis either.
Second, Mr. Sheffer focused on the
notion that Landfill 33
had “29 years” of life expectancy remaining, thus presumably
demonstrating that no need exists in the area for other disposal options (C. 207).
Indeed, it was
this life expectancy standard that was the only argument offered at the hearing in opposition to
the demonstrated need bySuffer.
Several problems exist with such an
analysis.
As
an initial
matter, neither the Act nor case law suggest that the need be determined by application ofa
standard of life expectancy of existing disposal facilities.
Such a standard is far too arbitrary and
inaccurate.
For example, Hearing Exhibit 4 reflects that Landfill 33’s life expectancy was
twenty-five years in
1995,
with a vertical expansion allowing for perhaps five to seven more
years (see
Page 6-41).
That same report
also estimated ERC remaining capacity at fifteen years,
but reported as less than one year in the
1999 EPA data.
Further, we see that Landfill 33 itself
reported to the Effingham County Board in
1999 that it had less than ten year expected life.
What further bears out is that the previously stated life expectancies have historically expired far
quicker than anticipated.
In support ofthat fact, the Board can review the county plan in Exhibits
4 and
5.
The county plan
in Exhibit 4 at Page 6-41
to 6-42 states that in years eleven through
twenty the county would
support Landfill 33 expansion.
The county in fact did so, however, in
1999,
even prior to the expiration offive years into that plan.
At Page 4-8 in Table
15,
the
county adopted alternatives to
consider.
Alternative A was considered less aggressive and
Alternative C was considered the most aggressive.
Alternative A contemplated an additional
fifteen years for ERC and twenty-seven years for Landfill 33.
The Board now knows
that is not
the case.
Landfill 33
requested and received its expansion earlier than anticipated, in fact earlier
than in the more aggressive approach in Alternative B in years
eleven through twenty.
This
19
Printed on Recycled Paper
Board support~dsuch expansion based on the need demonstrated by Landfill 33.
Consistent with
the
County Board recognizing the need is greater than originally identified in the
1995,
or the
1999 readoption ofthe
1995
plan, the Board can and now should move forward with Alternative
C,
It provided in the five to ten year period support for a new transfer station.
The county in
1995, and again in 1999
in readopting that plan, recognized that it might have to be more
aggressive and that is why Alternative C was set forth in the table.
It has been demonstrated that
a more aggressive approach is in fact needed.
Finally,
Mr.
Sheffer even admitted that he had no
evidence in the record to support that Landfill 33
has twenty-nine years worth of capacity left (C.
227).
What is more accurate in determining need than “expected life remaining”calculations are
actual cubic yard
capacity figures.
The Effingham County Board recognized this fact and
repeatedly inquired of Landfill 33
as to what capacity it has with the vertical expansion, which
information Landfill 33 was unable or at very least unwilling to
provide, choosing to instead set
forth an arbitrary standard oflife expectancy without any factual support.
Based upon Landfill
33’s own reports to the Illinois EPA, as described in its “Solid Waste Landfill Capacity
Certification” Reports of 2001
and 2002, it appears that Landfill 33
may only have 10 years of
expected life remaining.
This is based upon an annual increase in waste receipts of 9
which is
slightly less than the rate described by the Certification Reports.
See Report prepared by David
Kimmie attached to
Sutter public comment as Attachment 3
(C. 384).
In light ofthese factors,
and the evidence presented, the Effingham County Board’s decision is clearly not against the
manifest weight of the evidence.
20
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2.
Criterion 2:
The facility is so designed, located and proposed to be operated that the
public health, safety and welfare will be protected.
Criterion number two relates to
the specific design and operations ofthe proposed facility
and whether it will be operated in a safe manner.
Here too, the overwhelming evidence, as
contained within the Application and the testimony is that the proposed facility will satisfy this
criterion.
Two points, however, must be
remembered on this issue.
First, and like the other
criteria which speak in terms of
minimizing,
not eliminating, potential problems, Sutter is not
required to
guarantee
a certain level ofprotection.
Cluffs,
133 Ill. Dec.
at
635.
Ofcourse, Sutter
believes, and the evidence shows, that the public is amply protected by the design, location and
operations ofthe proposed facility.
Second, the County’s determination of this issue must be
substantially guided by the evidence and testimony ofthe experts in this case.
File v. D & L
Landfill, Inc., 219 Ill. App.3d
897,
162 Ill.
Dec. 414
(Sth
Dist.
1991)(The appellate court noted
that with respect to criterion number 2 “it has been held that the determination ofthis question is
purely a matter ofassessing the credibility of expert witnesses.”).
Here, the witnesses for the
facility opponents, namely Landfill 33, only testified to general
issues of possible concerns.
As
noted above, these concerns were not substantiated by any evidence presented.
Accordingly, the
mere statements ofpotential
concerns cannot be
given significant weight by the Pollution Control
Board.
Notwithstanding the above evidentiary and credibility issues, Petitioner Landfill 33
did
raise a concern with respect to the thickness ofthe concrete floor.
First, an issue was raised with
respect to whether it would support the weight ofthe loaded waste trucks.
In this regard, Mr.
Johnsrud, a consultant for Petitioner Landfill 33, testified that
in his
opinion the concrete floor
21
Printed on Recycled Paper
needed to be 8to
10 inches thick (C. 247).
Admittedly, Suffer did not know the thickness of the
floor.
In response, Tracey Suffer responded
by noting that the concrete floor had supported the
weight ofgrain trucks, and it would therefore also support the weight ofthe waste trucks.
Since
the time of the hearing, however,
Suffer Sanitation’s engineers have taken core samples ofthe
floor.
These samples were attached as Attachment 4 to
Suffer’s public comment (C.
387).
These
samples show that the concrete floor is
8.5 inches thick, on top of two to three inches of
aggregate.
According to Suffer’s
engineers, as well as apparently Mr. Johnsrud, this thickness is
more than adequate to support the weight ofthe waste trucks.
The second issue raised was with
respect to cracks and the slope ofthe floor such that any generated leachate might infiltrate below
the floor.
At the Effingham County Board hearing, Mr. Kimmle noted that any
cracks would be
sealed to
prevent infiltration (C. 268-269).
During the recent sampling it was also discovered
that a moisture barrier currently exists under the concrete floor which will prevent water
migration into the subgrade.
In addition, the slope of the floor is towards the east which is where
the transfer pit and
sump will
be located.
In light of these factors, as well as the evidence
produced at hearing, the Pollution Control Board should conclude
that the Effingham County
Board’s decision was not against the manifest weight of the evidence.
3.
Criterion 3:
The facility is locate so as to minimize incompatibility with the character of
the surrounding area and to minimize the effect on the value ofthe surrounding property.
Criterion number three requires that the proposed facility be located so as to
minimize
incompatibility with the character of the surrounding area and to minimize the affect of the value
on the surrounding property.
Sutter Sanitation has provided sufficient evidence to
satisfy this
criterion and the Effingham County Board’s decision was appropriate.
The law requires only that
22
Printed on Recycled Paper
the location
minimize
incompatibility and affect on property values.
In this case, the
only
evidence on this point shows that the proposed transfer station will have
no
impact on these
issues.
The evidence before the Effingham County Board was offered by Mr. Bitzer.
In addition
to being a qualified appraiser from the Effingham County area, Mr. Bitzer has visited and
evaluated several waste transfer stations in the past.
After reviewing Suffer’s proposed transfer
station plans, visiting the proposed site, and based upon his general understanding ofwaste
transfer station operations Mr. Bitzer opined that the proposed facility would not have an
adverse
impact on property values in the area, nor would
it be incompatible with the area (C.
182).
In
fact, in response to a question from Duanne Stock, Mr. Bitzer indicated the proposed transfer
station would have “zero impact” (C
183).
Echoing this minimal
impact, even a witness on
behalfof the opponent, Landfill 33, stated that transfer stations are often located in populated
areas.
Finally,
the Pollution Control Board
should consider that no evidence or testimony was
presented by anyone else which would rebut or contradict Mr. Bitzer’s testimony.
Thus, the
Effingham County Board’s decision on this criterion was appropriate and not against the
manifest weight ofthe evidence.
5.
Criterion
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.
Criterion number five requires the plan of operations for the facility be designed to
minimize the danger to
the surroUnding area from fires, spills
or other operational hazards.
This
criterion has also been met.
In addition to the information contained in the Application itself,
Mr. Kimmie, a professional engineer, testified on this criterion.
Mr. Kimmle
stated that because
combustible refuse would not be
stored on-site, the risk of fire is decreased (C.
158).
23
Printed on Recycled Paper
Furthermore, fire extinguishers as well as a contingency plan is in place to address any
emergency type situation (C.
159).
With respect to spills, it should be restated that no petroleum
products will be stored on-site (C.
158).
This, of course, eliminates any concern with respect to
spillages ofthis type ofmaterial.
The only potential for a liquid spill relates to the collection and
storage of leachate from site operations.
To minimize environmental
impacts, and as required by
the Illinois EPA, leachate will be collected and
stored on-site
in a
1,000 gallon tank. j~ It will
then be periodically shipped off-site for disposal. j~The tank itself will be within a concrete
containment structure (C.
151).
This structure will
serve to protect the tank from any vehicle
collisions, but also
to contain any spill that might occur from the tank itself.
In addition, and as
noted above, a contingency plan is in place to address any spillage
should it occur.
As Mr.
Kimmle testified, these measures are completely in accordance with industry standards (C.
159).
With respect to
operational accidents, Tracy Suffer addressed the one issue raised at the County
Board hearing about the height ofthe building where waste will be
dumped and whether it would
be sufficient to
accommodate dump trucks.
Mr. Suffer explained that typical trucks, including all
that he
owns, have no height problem raising beds to dump the waste within the building (C.
264).
Mr. Sutter also
testified that whenever a truck enters the building to unload waste,
a Sutter
Sanitation employee will be there to assist (C.
265).
Therefore, even in those
infrequent
situations where a larger truck might be
present, safeguards will be in place to
minimize the
chance ofany contact with the building structure.
Finally, it should be
considered that the only
challenge on criterion number five was set forth by Landfill 33’s witness, Mr. Johnsrud, based
merely on alleged lack of meaningful
detail in the plan ofoperations, and not upon any claim that
Mr. Kimmle’s or Tracy Sutter’s testimony was unbelievable or flawed.
In light of the evidence,
24
Printed on RecycledPaper
and the applicable standard that fire,
spills, and accidents be
minimized,
and not eliminated, by
the proposed facility’s plan of operations, the Effingham County Board’s decision was not
against the manifest weight of the evidence.
8.
Criterion
8:
Ifthe facility is to be located in a county where the county board has adopted
a solid waste management plan consistent with the planning requirements ofthe Local
Solid
Waste Disposal Act
or the Solid Waste Planning and Recycling Act, the facility is
consistent with that plan.
Criterion number eight
requires that ifthe proposed facility is located in a county where
the County Board has adopted a solid waste management plan, the proposed facility be consistent
with that
plan.
Effingham County adopted such a plan in
1995
and readopted it in
1999.
The
Effingham County plan supports both
in
and out ofcounty disposal.
Consistent with the plan,
and in recognition of the rapidly increasing waste needs ofthe County, the County Board
approved Landfill 33’s request for an expansion ofits landfill some five to ten years earlier than
anticipated.
Given the increased need ofsolid waste
facilities and the greater pace at which
available landfill space
is decreasing (including the impending closure of the ERC landfill), out
ofcounty disposal options,
as provided for in the County plan, must also
be put in place.
Again,
such out ofcounty disposal was contemplated and recognized in the County Plan.
Accordingly,
the Effingham County Board’s determination that the criteria was met
is not against the manifest
weight of the evidence.
III.
CONCLUSION
For the reasons set forth above, Respondent Sutter Sanitation Service, Inc.,
respectfully
requests that the Pollution Control Board affirm the September
16, 2002
decision ofthe
25
Printed on RecycledPaper
Effingham County Board
approving Sutter Sanitation Services, Inc.
Request for Local Siting
Approval for a Proposed Solid Waste Transfer Station in ~EffinghamCounty.
Respectfully submitted,
SUTTER SANITATION SERVICES
By:
—z:.
One of Its Attorneys
Sorling, Northrup, Hanna, Cullen
and Cochran, Ltd.
David A. Rolf and
Charles J. Northrup, ofCounsel
Suite 800 Illinois Building
Post Office Box
5131
Springfield, IL
62705
Telephone:
(217) 544-1144
26
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PROOF OF SERVICE
The undersigned hereby certifies that a copy ofthe foregoing document was served by hand
delivery on Friday, January 10,
2003 to:
Stephen F. Hedinger
Hedinger Law Office
1225 S. Sixth St.
Springfield,
IL 62703
Christine
G. Zeman
Hodge Dwyer Zeman
P.O. Box 5776
Springfield, IL 62705-5776
and by Federal Express on Thursday, January 9, 2003 to:
Edward
C.
Deters
Effingham County State’s Attorney
County Office Building
101 N. Fourth St., Suite 400
Effingham, IL 62401
0369 180.005
1/9/2003CJN
27
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