)
Respondents.
)
C~
~LL~NC~3
PCB
03-43
~
(Third-Party Pollution Control
Facility Siting Appeal)
EFFINGHAM COUNTY BOARD
and
SUTTER
SANITATION SERVICES,
Respondents.
PCB 03-52
(Third-Party Pollution Control
Facility Siting Appeal)
(Consolidated)
NOTICE
OF FILING
TO:
Ms.
Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
(VIA AIRBORNE EXPRESS)
(SEE PERSONS ON
ATTACHED
LIST)
Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution
Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
(VIA AIRBORNE EXPRESS)
PLEASE TAKE NOTICE that I have today served for filing with the Office of the
Illinois Pollution Control Board an
original and nine copies of STOCK & COMPANY,
LLC’S BRIEF IN REPLY TO THE INITIAL POST-HEARNG BRIEFS
OF
SUTTER
BEFORE THE ILLINOIS POLLUTION CONTROL ~
c~.~~c’s
OTi
—~
LANDFILL 33, LTD.,
Petitioner,
V.
EFFNGHAM
COUNTY BOARD and
SUTTER SANITATION SERVICES,
)
)
)
)
)
)
)
)
7
211U3
STOCK & COMPANY,
LLC,
Petitioner,
V.
)
)
)
)
)
)
)
)
)
)
)
THIS
FILTh~G
SUBMITTED ON RECYCLED PAPER
SANITATION SERVICES,
NC.
AND THE EFFINGHAM COUNTY BOARD attached
herewith, copies ofwhich
are herewith served upon
you.
Respectftilly submitted,
STOCK
& COMPANY,
LLC
Petitioner,
By:___________
One of Its Attorneys
Dated:
January
16,
2003
Christine G. Zeman
David M. Walter
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
CERTIFICATE OF SERVICE
I, David M. Walter, the undersigned, hereby certify that I have served the attached
STOCK
& COMPANY, LLC’S BRIEF IN REPLY TO THE INITIAL POST-
HEARING BRIEFS
OF SUTTER SANITATION SERVICES, INC. AND THE
EFFINGHAM COUNTY BOARD
upon:
Ms.
Dorothy M.
Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
Edward
C. Deters, Esq.
Effingham County State’s Attorney
County Office Building
101
North Fourth
Street, Suite 400
Effingham,
Illinois
62401
Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
via Airborne Express in Springfield,
Illinois,
on January
16,
2003,
for delivery to the
above-referenced persons on January
17,
2003,
at 10:30 am.,
and will
serve upon:
Charles Jones Northrup, Esq.
Attorney for Sutter Sanitation Services
Sorling,
Northrup, Hanna,
Cullen
&
Cochran
Illinois Building,
Suite 800
Post Office Box
5131
Springfield,
Illinois
62705
via hand-delivery on January
17,
2003.
Stephen F. Hedinger, Esq.
Attorney for Landfill 33,
Ltd.
Hedinger Law
Office
1225
South Sixth
Street
Springfield, Illinois
62703
David M. Walter
STOK:OOl/Filings/NOF-COS
—
Reply Brief
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLfl~y~,
(~n~
LANDFILL 33, LTD.,
)
~2003
)
Petitioner,
)
-
)
~
(.11j~~-~f
v.
)
PCB 03-43
)
(Third-Party Pollution
Control
EFFINGHAM COUNTY BOARD and
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
)
Respondents.
)
)
STOCK &
COMPANY, LLC,
)
)
Petitioner,
)
)
v.
)
PCB
03-52
Imt.:.,i
~
o~.ii~÷~
)
t~J11il~.j.j.a1L~ .i.
uiiut.tOii
jj.it.i~ji
EFFINGHAM COUNTY BOARD and
)
Facility Siting Appeal)
SUTTER SANITATION SERVICES,
)
(Consolidated)
)
Respondents.
)
S
STOCK & COMPANY,
LLC’S
BRIEF
IN REPLY TO THE INITIAL POST-HEARING BRIEFS OF SUTTER
SANITATION
SERVICES~INC. AND THE EFFINGHAM COUNTY BOARD
NOW COMES
the Petitioner, STOCK
& COMPANY, LLC
(“Stock&
Co.”), and
in reply to the Initial Post Hearing Briefs of Sutter Sanitation Services, Inc.
(“Sutter”) and
the Effingham County Board (“County Board”), hereby
states as follows:
I.
BACKGROUND
On January 10, 2003, the parties filed their initial briefs pursuant to hearing
officer Brad Halloran’ s order.
Raising a jurisdictional question, the briefofLandfill 33,
LTD.
(“Landfill 33”),
Stock & Co.’s co-petitioner, points out that pre-hearing
notice was
not pe~fected
by the respondents pursuant to
Section 39.2(d) ofthe Act (415 ILCS
5/39.2(d)).
Landfill 33
Briefat
3.
Although Stock & Co.
itself did not raise the notice
issue,
upon reviewing Landfill 33’s brief and the Record, it agrees with Landfill 33’s
conclusion that notice was not properly perfected, and that the proper remedy for this
jurisdictional defect is to vacate the proceedings.
~
Landfill 33 Briefat 4,
including
footnote 2.
Any other remedy would reward the applicant for its own error and result in a
fundamentally unfair proceeding.
The applicant, in
effect, has waived its right to
“automatic approval” through its own mistake.
The County Board’s brief opens with an “Introduction and Procedural History”
section, whiëh is little
different from Sutter’s “Introduction” and “Factual Overview.”
See Respondent Sutter Sanitation Services, Inc.’s Initial Post-Hearing Brief(“Sutter
Brief’)
alt 1-4, and the Effingham County Board’s Initial Post-Hearing Brief(“County
Brief’) at 1-3.
Nevertheless, very few citations to the Record are provided in support of
the introductory
factual assertions ofeither brief.
jç~
II.
AS EXPLAINED
IN
STOCK & CO.’S INITIAL
POST-HEARING BRIEF,
THE COUNTY BOARD’S DECISION IS
AGAINST
THE
MANIFEST
WEIGHT OF THE
EVIDENCE
S
S
A county’s decision to approve siting
is reviewed using the manifest weight of the
evidence standard.
File v. D&L Landfill, Inc., 219 Ill,
App.
3d 897, 901, 579 N.E.2d
1228,
162 Iii. Dec. 414
(5th Dist.
1991).
And, as Suttercorrectly notes, the burden of
demonstrating that the local siting authority erred is on the Petitioners, i.e.,
Stock & Co.
and Landfill
33.
,
Sutter Briefat
17;
415 ILCS
5/40.1(b).
Nonetheless, at the hearing
before the County Board,
Sutter
h~i
~
burden of demonstrating, by a preponderance of
the evidence, compliance with all
nine criteria.
American Bottom Conservancy, et al.,
v.
Village ofFairmont,
et.
al., No. 01-159,2001111. Bnv.
Lexis 489 at *6(rpcB,
Oct.
18,
2001).
5
5
2
Here, the County Board’s decision to grant local siting approval is against the
manifest weight of the evidence, because the opposite result is clearly evident, plain, or
indisputable from a review ofthe evidence in the Record.
Indeed, as explained more
fully in
Stock &
Co.’s initial post-hearing brief,
Sutter failed to
demonstratethat each of
the statutory requirements was met.
Moreover, undisputed evidence in the record
(including evidence presented by Sutter itself) demonstrates that the statutory criteria are
not met.
The County Board’s decision granting siting approval
is simply against the
manifest weight of the evidence.
It must be reversed, or at a minimum, remanded.
In its brief, the County Board opts not to “rehash” the evidence presented in the
hearing below.
County Briefat
4.
Instead, the County Board, without any
citation to the
Record and without any
support in the Record, summarizes
the County Board’s
procedure at pages two through five and states, “substantial discussion was had and
consideration givento
all ofthe evidence put on by both Landfill 33
and Sutter
Sanitation.”
County Brief at 5.
These claims regarding the County Board’s deliberations
are unsupported by any
citations to the Record and
should be stricken or otherwise not
considered here.
Moreover, the County Board admits that one of its members did not
agree with other County Board members that Sutter had
met two ofthe statutory criteria.
~,
County Briefat
5.
Notwithstanding that one member voted “nay”on whether two
criteria had
been met,
all County Board members (including the member who admitted
that compliance with all of the criteria had not been demonstrated) voted to approve local
siting anyway.
Record (“R.”) at C437-C438.
~
~,
Sutter Brief at
3.
3
A.
Criterion I
In its brief, Sutter contends that it provided sufficient
evidence to support the first
criterion,
stating in pertinent part,
as follows:
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.
Sutter Briefat
18.
5
Sutter provides no
citations to the Record,
however, in
support of these two
statements.
In its brief, Sutter also asserts, without support,
as follows:
Such
factors as a reasonable
convenience of expanding the facility may
be demonstrated to satisfy the need criteria.
Sutter Briefat
18.
In Clutts v. Beasely, the Fifth District Appellalte Court did state, in pertinent part,
as follows:
First,
a landfill does not have to be necessary in absolute terms.
It is
enough that it is “expedient” or is “reasonably convenient.”
Citations
omitted.
The testimony in this case established that the closest landfill
was open only five days a week from
10 a.m. to
3 p.m.
The only other
alternative landfill was in Mayfield, Kentucky.
Clutts v. Beasley,
185
Ill. App.
3d 543,
546,
541 N.B.2d
844,
133
Ill. Dec.
633,
635
(SthDist.
1989).
Nevertheless, in a later decision, the Court elaborated and explained that the
applicant must demonstrate an urgent need forthe new facility as well:
With respectto the requirement of showing that the new landfill is
necessary to accommodate the waste needs ofthe area it is intended to
serve, the applicant need not show absolute necessity. However, the
applicant must demonstrate an urgent need forthe new facility as well as
the reasonable
convenience of establishing a new or expanding an existing
landfill
Citation
othitthd~~
Theapplicant must show~
•~
that the l~andfiThis
--.
4
reasonably required by the waste needs ofthe area, including
consideration ofits waste production and
disposal capabilities.
Citation
omitted.
The applicant need not show that every other potential landfill
site in the region is unsuitable but must show
morethan mere
convenience.
S
File v.
D & L Landfill, Inc., 219 Ill.
App. 3d 897, 906-907,
579 N.B.2d
1228,
1235-1236,
162 Ill. Dec. 414 (5th Dist.
1991).
(Emphasis added.)
As the Illinois Pollution
Control Board (“Board”) has also
recognized,
S
“necessaiy” connotes a “degree of requirement Or essentiality”
and ~
~
that a facility
will be “reasonably convenient.”
American Bottom Conservancy,
et al., v.
Village of
Fairmont,
et.
al., No. 01-159, 2001 Ill.
Bnv. Lexis 489 at *54
(IPCB, Oct.
18,
2001).
(Emphasis added.)
Indeed, the applicant must demonstrate, at a minimum, both ~
~gent
~i
fbr, and the reasonable convenience of, the new facility. j~ (Emphasis Added.)
That Sutter failed to demonstrate an urgent need for its transfer station is
supported by precedent regarding the efficiencies
a transfer station may provide to
haulers.
Here, there is no dispute that Sutter attempted to establish need forthe transfer
station at this loôation so as to “economically access out-of-county landfills” through the
use of packer trucks for local collection and
a semi-trailer for the longer.haul.
R.
at C15,
C223, C240,
and C278.
A similar argument was unsuccessfully made by Waste
Management ofIllinois, Inc. to
support a new transfer station in Bensenville.
The Board
and First District Appellate Court ruled that improvement in the efficiency ofhauling
operations is inadequateto meet the statutory requirement ofnecessity.
Waste
Management ofIllinois, Inc.
v.
IPCB,
243
Ill. App.
3d 65, 69, 600 N.E.2d 55,
58,
175 Ill
Dec.
432
(lstDist.
1992).
5
5
Sutter failed
completely to demonstrate any need for its
transfer station,
urgent or
otherwise.
The undisputed evidence in the Record demonstrates that regional waste
capacity is adequate.
R. at C 142.
The undisputed evidence in the Record demonstrates
that a refuse collection vehicle can routinely and economically travel within a 30-mile
radius ofa waste disposal
site.
R.
at C14.
And, the undisputed evidence in the Record
demonstrates that two landfills and a transfer station already exist within a 30-mIle radius
ofthe proposed facility.
R.
at C14, C17.
Improvement in the efficiency ofhauling
operations does not establish need. j~.The County Board’s decision with regard to
Criterion I is thus against the manifest weight ofthe evidence,
and must be
reversed.’
C~
Criterion H
Again,
as the applicant at the hearing before the County Board,
Sütter had the
burden of establishing, by a preponderance ofthe evidence, that
all ofthe essential
criteria were satisfied.
American Bottom Conservancy. et a!. v. Village of Fairmont, ~
~,
No.
01-159,
2001.111. Env. Lexis
489 at *6 (IPCB, Oct.
18, 2001).
Where an applicant fails to
demonstrate that the statutory criterion is satisfied, its
application is properly denied.
~,
~
~STaste
Management ofIllinois, Inc.
v.
IPCB,
123
Ill.
App.
3d 1075,
1084,79111. Dec. 415,
422,
463 N.E.2d 969, 976 (2dDist.
1984).
Here,
although Sutter presented evidence regarding the proposedtransfer station’s design,
location, and operation,
Sutter clearly failed to demonstrate that public, safety and
welfare will be protected.
5
--
Indeed, from the briefs and Record,
it
is not even clear what the “service area”
is, as evidenced
by
silence on the issue inSutter’sbref~
and Suitëi’~
s~hiftã~äy~fron
~6fer~fic~th
a
30-50
nille xadius of
the proposed site as used
in
the application and evidence at hearing.
6
Nevertheless, in its brief,
Sutter attempts to minimize the requirement that the
public health,
safety and welfare will be protected, stating,
in pertinent part, as follows:
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.
Clutts,
133 Ill. Dec.
at 635.
Sutter Brief at 21;
Clutts v. Beasley,
185 Ill. App. 3d 543,
541 N.E.2d 844,
133
Ill. Dec.
633
(5th Dist.
1989).
The case at bar
is easily distinguishable from the Fifth District’s decision in
Clutts, however.
In Clutts, the evidence showed that the landfill was designed and
proposed to be operated so as to protect public health,
safety and welfare.
~
at 546.
An
experienced landfill design engineer had designed the proposed landfill in compliance
with the applicable regulatory standards. jj
And, the Court held that compliance with
these standards satisfied Criterion II.
~cj. Although Clutts argued that there could be
no
guarantee that the water supply would not be contaminated by the landfill, the Court
stated that “a
guarantee against contamination is not required by the statute.”
j~j.
In stark contrast to
Clutts, Sutter has not demonstrated that the facility is so
designed, located, or proposed to be operated so as to protect public health,
safety and
welfare.
Instead, the evidence in the Record demonstrates that,
as designed, located, and
proposed to be operated,
Sutter’s facility would violate several regulatory standards.
For example, Section 22.14(a) ofthe Illinois Environmental Protection Act
(“Act”) provides that no person may establish any pollution control facility foruse as a
garbage transfer station within 1000
feet of any dwelling.
415 JLCS 5/22,14(a).
Nonetheless, Sutter’s own application concedes that “the closest dwelling is located on
7
the property” that
is proposed for the transfer station.
R.
at
C19.2
Thatthe set back
requirement of Section 22.14(a) is not met demonstrates that the facility is not located so
as to protect public health,
safety and welfare.
Similarly,
Section 12(a) ofthe Act provides, j~~r
~Jj_a,
that no
person shall
threaten the discharge of any contaminants into the environment so as to cause or tend to
cause water pollution in Illinois.
415 ILCS
5/12(a).
As the transfer station is proposed to
be modified from its prior use for grain storage and a grain elevator operation (R.
at C77),
it is not designed with any plan to prevent liquid wastes and leaôhate from running offthe
concrete floor and Onto the ground surrounding the building.
R.
at C244.
The concrete
floor is to be washed down, yet nothing is in place to prevent the contaminated wash
water from flowing offthe floor and
onto the ground outside.
R.
at C244.
Sutter’s expert
was unable to tell the County Board whether water that drains from the proposed transfer
facility location goes in the direction ofan area lake.
R.
at C167.
When Tracy Sutter
was asked
about which direction the water that drains from the facility would go
and
whether the lake would be affected, Mr.
Sutter responded that he was “assuming that the
water does not go in that direction.”
R.
at C195.
In case the threat of water pollution is not enough,
Sutter’s own “Facility Plan”
schematic shows that a large “existing propane ~~ç”
is located a short distance
diagonally from the proposed transfer station.
R.
at C77.
(Emphasis added.)
And,
Sutter’ s plan of operations increases the risk of disaster by routing semi-tractor trailers
2
This
house on-site will preclude permitting by the Illinois Environmental Protection Agency
(“IEPA”).
R.
at
C238.
As a practical matter, even
if
the house was not present on site,
this
provision ofthe Act
-
-
will preclude
the
~
fromi~s~ing
a permit for the
ttansferstation anyway.
Mthough not considered
by the County Board below, p~iblicc6ñiinent
at
the
hCaI’irig
oil
flu
~iiI5lTãithe~S,
deitic~n~trated
that
there is now anotherhome located within
200
yards of
the
proposed site.
$,~,
Tr.
at
40.
8
and trash collection vehicles around both sides ofthis propane tank as they travel to and
from the highway.
See “Process FlowDiagram,” R.
at C78.
Sutter has presented no
evidence regarding this tank’s capacity~
or if it is even still in use.
And, if it is no longer
in use, there is no
evidence that the tank has been properly abandoned by having the fuel
removed and the tank filled with water.
See, ~
Office of the State Fire Marshal’s
(“OSFM”)
standards for liquefied petroleum gas containers at 41111.
Admin.
Code
§
200.190.
Similarly; Sutter has presented no evidence whatsoever.that this large
propane tank, around which semi-trailers and garbage trucks will be routed, is enclosed
by a guard rail or by posts six inches or more in diameter.
~,
~
41111.
Adnuin.
Code
§
200.70(d)(1).
.
S
S
Moreover,
it is undisputed that the location ofthe proposed transfer station will be
accessible to the
public.
R.
at C191.
And, when asked about the plan ofoperation for
fueling an end loader that will be located on
site, Mr. Sutter responded as follows:
I currently use FS
as a fuel service.
They have trucks that will do
deliveries.
I will anticipate that on the loader, I would have them deliver
the fuel on-site with their truck directly to the loader.
R.
at C188.
S
Nevertheless, the OSFM’s mobile fueling regulations prohibit the delivery of
flammable
or combustible motor vehicle fuels from tanktrucks, tank wagons, or other
portable tanks,
subject to certain exceptions
--
none ofwhich have been shown to apply
here.
41111.
Admin.
Code
§
170.210.
~,
~g,
41111.
Admin.. Code
§
170.211
(allowing
mobile dispensing
at locations that
are, j~r ~
permitted by the OSFM, not normally
S
accessible to the public,
and at least 50 feet from structures or combustible storage).
Unlike the applicant in
Clutts, Sutter has not demonstrated compliance with the
9
applicable regulatory
standards; to the contrary, Sutter has demonstrated that the facility
will i~tbe in compliance as designed, located and proposed to be operated.
In its brief, Sutter also cites the Fifth District’s opinion in ~jLe,and contends in
pertinent part,
as follows:
S
S
Second, the County’s
determination ofthis 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 (5th Dist.
199 1)(The appellate court noted that with respect to criterion number 2 “it
has been held that the determination ofthis question is purely a matter of
assessing the credibility ofexpert witnesses.”)
Sutter Brief at 21.
Nevertheless,
in File,
conflicting evidence was presented with regard to this
criterion,
and the decisionmaker simply decided which evidence it found to be most
credible.
File
at 907.
In contrast here, as set forth above and
in Stock & Co.’s initial
post-hearing brief, undisputed evidence (including
Sutter’s
own evidence) demonstrates
that the criterion was not met,
S
To receive siting approval, Sutter was required to submit sufficient details about
the proposed facility to
demonstratethat it meets each criterion listed
in Section 39.2(a)
ofthe ~ct.
County OfKankakee, et al. v.
City of Kankakee, et al, Nos.
03-31, 03-33, 03-
35 (consolidated) at *27..2~(Ill. PCB, January 9,
2003) (reversing decision of
municipality, which was against the manifest weight of the evidence, because compliance
with Criterion II had not been demonstrated).
Despite questioning by Mr. Deters, the
County’s counsel, that resulted in one witness suggesting that the County Board need
trouble itself with technical concerns because such concerns would be considered by the
EPA,
the County Board cannot simply defer to the Agency when there is insufficient
-.
evidence to support an app-li-cant’s siting requestT
~
-R;
at~C269,~C
1 93-1-94-
-The- County-
-
10
.
S
Board’s decision on
Criterion II was against the manifest weight ofthe evidence and
must be reversed.
D.
Criterion III
.As explained in Stock & Co.’s initial post-hearing brief, Criterion III is “two
pronged.”
First, the applicant must demonstrate that the facility is located so as to
minimize incompatibility withthe character ofthe surrounding area.
Second, the
applicant must demdnstrate that the facility is
located so as to minimize the effect on the
value ofthe surrounding property.
Nevertheless, Sutter simply failed to provide ~y
evidence on the
first prong or
element ofCriterion III.
In its brief, Sutter claims,
in
pertinent part, as follows:
After reviewing Sutter’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).
Sutter Briefat 23.
(Emphasis added.)
The Record, however,
simply contains the following incomprehensible question
from Sutter’s lawyer that Mr. Bitzer
agreed was “true.”
Q.
Okay.
Is your opinion then does this proposed facility meet,
within a reasonable degree ofyour profession, Criterion No.
3, in
that minimizing the incompatibility with the character ofthe
surrounding area and minimizing the effect on the value ofthe
surrounding property?
S
A..
That is true.
S
S
Q.
I don’t have anything else for Mr. Bitzer, Mr. Chairman.
R. at C182.
S
11
There is no
discussion in the Record whatsoever as to howthe facility will
minimize incompatibility with the character ofthe surrounding area.
R.
at C178-C182.
An applicant must demonstrate it has done or will do what is reasonably
feasible to minimize
incompatibility.
S
Waste Management of Illinois, Inc. v. IPCB,
123 Ill.
App. 3d
1075,
1090, 79 Ill. Dec.
415,
426,
463 N.E.2d 969,
980 (2d Dist:
1984).
Sutter has presented no
evidence that it
has done or will do what is reasonably feasible to minimize incompatibility.
Indeed, that
a
dwelling
is on the transfer station property itself in violation ofthe statutory
set back
requirement at Section 22.14 of the Act is
further evidence that reasonable efforts to
minimize incompatibility have not been demonstrated.
Thus, the decision of the County
Board that this criterion has been met
is against the manifest weight of,the evidence.
E.
Criterion V
As noted in
Stock & Co.’s initial post-hearing brief, the statute requires that the
danger from a
facility be minimized,
and Sutter has not done so.
Indeed, it is clear. from
theRecOrd and
Sutter’s brief that Sutter has ignored the language of the Act and,
instead,
simply taken minimal measures, at most and if at all,
to address the danger offires,
spills,
and operational accidents.
~
~
Sutter Briefat 23-25.
The Second District Appellate Court has made it clear thatwhen the General
Assembly used. the term “minimize” in Section 39.2 of the Act
it
3~L~
~j
referring ~
minimal efforts by applicants,
stating in pertinent part as follows:
S
Under the
applicant’s
construction, any action, however small, taken by
an applicant to minimize the landfill’s incompatibility would satisfy the
statutory requirement.
Such a minimal requirement would render the
criterion practically meaningless.
Rather, we read section 39.2(a)(iii) as
requiring an applicant to demonstrate more than minimal efforts to reduce
S
--
the landfill’s incompatibility.
-
-
-
S
-
-
-
S
12
An applicant must demonstrate it has done or will do what is reasonably
feasible to minimize incompatibility.
Waste Management of Illinois,
Inc.
v.
IPCB,
123
Ill.
App.
3d
1075,
1090,
79 Ill. Dec.
415,
426,
463 N.E.2d 969,
980 (2d Dist.
1984).
5
As illustrated further in
Stock &
Co.’s brief, Sutter has not demonstrated that it
has done or will do what is reasonably feasible to minimize the danger to the surrounding
area from fire,
spills, .or other operational accidents.
F.
Criterion
VIII
It is undisputed that Bffingham County has adopted a regional waste management
plan.
R.
at C7 1.
In its brief,
Sutter argues that the plan “supports both in and out of
county disposal.”
Sutter Briefat
25.
Sutter concludes in its briefthat
Criterion VIII was
met, because out-of-county disposal was contemplated.
Sutter Brief at
25.
Nevertheless,
Landfill 33
explains that the plan, as adopted previously, rejected a proposal
for a transfer
station
and contemplated only the continued utilization of existing landfills through
direot
haul.
~,
Landfill 33
Brief at
12 (citing R.
atC213-C216).
Effingham County’s
previous rejection of a proposal for a transfer station in its plan is evidence that Sutter’s
proposed facility is not consistent with Bffingham County’s plan.
While this criterion
does not require that
a county plan be followed to the letter or pose rigid requirements,
the facility must not conflict with the county’s stated intent in the plan, as it does here.
Sierra Club v.
City ofWood River, No. 98-43,
1998 Ill. Env.
Lexis
12 at
*24
(IIPCB,
Jan.
8,
1998).
5
5
.
S
S
5
13
5
5
5
S
G.
Conclusion As To All Criteria
S
Section 39.2(a) ofthe Act sets forth criteria that must be met prior to the approval
of a siting application for a waste transfer station:
415 ILCS
5/39.2(a).
The General
Assembly has charged the County Board with resolving the technical issues set forth
therein, including the public
health ramifications associated with the facility’s design. j~
5
The applicant, Sutter, had the burden ofproofand was required to
demonstrate that the
criteria were met.
As
explained with supporting citations
in Stock &
Co.’s initial post-
hearing brief, .Sutter did not demonstrate compliance.
S
It
is undisputed that the regional waste disposal capacity is already adequate.
R.
at C 142.
Sutter did not demonstrate that the transfer station is needed.
At best, it
demonstrated that the transfer station might be
convenient.
Sutter. also failed to
demonstrate that the facility, an improvised design with minimal safeguards proposed to
be retrofitted to a former grain elevator, is located so as to minimize incompatibility and
the effect on the value ofthe surrounding property.
More importantly, Sutter has failed
to demonstrate that public health,
safety,
and welfare will be protected.
Indeed, instead
of being designed to minimize
danger, it appears that Sutter’ s transfer station is disastrous
as designed.
The County Board’s decision to approve local siting is against the manifest
weight ofthe evidence and must be reversed.
S
S
ifi..
THE COUNTY BOARD’S PROCEEDINGS
WERE
FUNDAMENTALLY
5
UNFAIR
S
55
Moreover, the proceedings before the County Board were not fundamentally fair
as to Stock &
Co.
Examples ofthe lack of fundamental fairness, which are explained in
greater detail in Stock &
Co.’s.initial post-hearing brief, include the following.
The
ha’nscH~tofthe
hearingwas
not m~deavaiiabie
by the C~untyBoard
-in-a
ti~meiy-ma~nner.-
5
S
14
In response to
Sutter’s inducement to provide recycling services, the County Board
approved local siting despite Sutter’s
failure to demonstrate that the statutory criteria had
been met.
The mother of the County Board’s attorney was a highly vocal advocate for
the recycling center
and hence siting approval
--
yet this
mother/son relationship
was
never disclosed.
And, members ofthe County Board toured Sutter’s site at least once,
immediately before the siting application was filed, and again after the siting application
had been filed, but the substance ofthose
tours was not disclosed and
persons opposed to
the transfer station were
not invited to participate
A.
Unavailability of the Hearing Transcript at the County
The County Board hearing took
place on August
14,
2002.
R.
at C
125.
The
hearing record, although transcribed and certified by
September
2,
2002, was not made
available to the public at the County Board’s offices until after the County Board
approved local siting and after the time had elapsed for filing an appeal.
R.
at C294.
When Stock & Co.,
through its Registered Agent, Duane
Stock, contacted the County
Clerk on October 2,
2002, to obtain a copy ofthe hearing transcript,
he was told that the
transcript was not available through the County and was advised to contact
counsel for
the applicant.
~
Affidavit attached to
Stock & Co.’s Petition for Review,
and
Transcript of Hearing (“Tr.”) at 44-45
.
As the Board
is aware,
it has previously held that
a siting authority’s failure to
provide access to the hearing transcript
is enough to
make
the proceedings fundamentally unfair.
Spill, et a!.
v.
City of Madison and Metro-East,
LLC, PCB
96-91,
1996
Ill. Lexis 250
at
*22 (IPCB
March 21,
1996);
American Bottom
Conservancy, et al.,
v.
Village of Fairmont, et.
al., No. 00-200, 2000
Ill. Env.
Lexis
665
15
at
*44 (IPCB,
Oct.
19, 2000).~
~,
~
County of Kankakee, et a!.
v.
City of Kankakee,
etal.,
Nos.
03-31, 03-33, 03-35 (consolidated) at *27..28
(IPCB, Jan.
9,
2003) (discussing
the significance of the opportunity to review the transcript
at 24).
In its brief, Sutter complains that it has been significantly prejudiced because
Landfill 33
did not
allege any
specific grounds for fundamental unfairness and responded
to
Sutter’s requests for disclosure by stating that such facts were included in the Record.
Sutter Briefat 5.
Ironically, however,
Sutter then claims that no prejudice
has occurred
to
Stock & Co.
at all
as a result ofthe County Board not
making the transcript available,
stating in pertinent part, as follows:
In fact, Petitioner Stock make 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 ofthe 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 preludice
has occurred.
Sutter Briefat 7.
(Emphasis added.)
Both the County Board and
Sutter suggest that it was
not enough that Stock &
Co.
asked for and did not receive a copy of a transcript to which it
was entitled
by Sections
39.2(c) and (d) ofthe Act.
SutterBriefat
7; County Brief at 8.
It is
undisputed that the
~
In its initial post-hearing
Brief,
Stock inadvertently cites to
American
Bottom
instead of ~pffl as a case
where no explanation was
given
for a
delay in
making the transcript available.
~
Stock
&
Co.
Brief
at 21
(with
improper citation of
“Ii at
*45”),
It
was
in ~.pffl,however,
and
not
American
Bottom,
where no
explanation was offered for the
delay in making the
transcript available.
Spill, et al.
V.
City
of Madison
and Metro-East, LLC, PCB 96-91,
1996
Ill. Lexis 250
at *20,.22 (IPCB March 21,
1996).
In American Bottom, the transcript was either “lost” or not yet received.
American Bottom
Conservancy, et
al., v. Village of Fairmont. et. al.,
No. 00-200, 2000
111. Env. Lexis 665
at *21..22
45
(IPCB, Oct.
19,
2000).
We note
again that here
the
County Board offered no
explanation for the
delay between the date the
hearing record was transcribed (September 2nd), the
date it was first requested by Duane
Stock
(October 2nd), the date the appeal
petition was due to be filed and
was
filed
(October 2 1st) and the
date the transcript was finally filed with the
County
(October 24th).
16
transcript was not even available at the County until
October 24, 2002.
~,
~
County
Brief at 7.
Nevertheless, without any
support or precedent, the County Board and
Sutter
suggest that Stock & Co. was required and indeed had the burden to
continue to make
futile requests to
obtain a copy ofthe transcript after its
October 2, 2002 efforts failed.
Sutter brief at 7; County Briefat 8.
In addition, the County Board inaccurately suggests that Duane Stock
failed to
identify Stock & Co.
as a participant,
and incorrectly references the transcript as follows:
Stock conceded he never contacted any Effingham
County officials or
public bodies to identify himself as a party or participant to the
S
proceedings prior to the Board’s vote on
September
16,
2002 (PCB
Tr. 50-
51).
County Brief at 8.
In contrast to the County Board’s claims,
the actual testimony from the
fundamental fairness hearing, which the County Board cites, provides,
in pertinent part,
as follows:
Q.
And would
it be fair to say, Mr.
Stock that
in fact, between the
waste transfer hearing and transfer siting
hearing and the county
board’s action on September
16th, other than having made written
comment, you never told the county board or the state’s attorney’s
office or the county clerk’s office that you considered yourself to
be
an active participant
in these hearings, other than having made
written comment?
A.
Correct.
Tr. at
50-5 1.
(Emphasis added.)
Indeed,
among other actions, Duane
Stock attended the hearing on behalfof Stock
& Co,
asked
questions of witnesses, and made public comments.
R.
at C 170;
C 183;
C415.
Section 39.2(d) ofthe Act requires that a record ofthe public hearing be
developed,
and that the record be sufficient to form the basis ofappeal.
415
ILCS
17
5/39.2(d).
All such documents or other materials on file with the county board or
governing body must be made available for public inspection and copying, without
regard to one’s role as a party or participant.
415
ILCS
5/39.2(c).
And,
by statute, a third
party, i.e., someone other than the applicant, who participated in the public hearing may
petition the Board to contest the approval ofthe County Board.
415 ILCS
40.1(b).
Stock
& Co.
was thus legally entitled to review a copy of the transcript at the offices ofthe
County Board before its appeal
was due, but
was denied that right.
Sutter
also suggests that Stock &
Co.
failed to “follow up
as advised by the
County Clerk’s office to obtain
a transcript.”
Sutter Brief at
7.
Nevertheless, the only
advice Stock &
Co. received from the County Clerk’s office was to contact Sutter’s
attorney.
Tr.
at 52;
Sutter Brief at 7.
Sutter cites no
support for the proposition that
a
decisionmaker can delegate its record-keeping responsibilities to the attorney for the
applicant.
Indeed, the County Board’s delegation of this responsibility to
the attorney for
the applicant is itself suggestive ofcollusion between the applicant and decisionmaker
and thus a lack of fundamental fairness.
Both the County Board and
Sutter suggest that Stock &
Co. was not prejudiced
because it did not
ask for the transcript until after the County Board
issued its decision
approving siting.
Sutter Briefat
7.
Nevertheless, as explained
in Stock & Co.’s initial
post-hearing brief, the County Board’s decision to approve siting was clearly against the
manifest
weight of the evidence and, thus,
understandably unexpected by
Stock & Co.
Moreover,
Duane
Stock,
Stock &
Co.’s agent, was admittedly
naïve regarding these
proceedings.
Tr.
at
49.
Unlike Sutter, the County
Board, or even Landfill
33,
Stock &
18
Co.
was not
represented by an attorney during the hearings before the County Board.
R.
at C1-C439.
In its brief, Sutter attempts to distinguish the
~pI11
decision by comparing
the
number of hours required for the hearing and the number of pages in the transcripts, then
concluding that the hearing in ~.p.fflwas longer and required more pages.
Sutter Briefat
9.
This is a difference without a distinction.
In fact, unlike in ~p.ffl,the transcript in this
case should have been made available
nearly immediately upon the hearing’s completion
because there were
substantially fewer pages
and less testimony to
transcribe.
In ~pffl,
the hearing took place over a four day period and resulted in a transcript
in excess of
1800
pages; the hearing here lasted approximate three (3) hours and resulted in a
transcript of less than 300 pages.
Sutter Brief at 9.
And, contrary to Sutter’s suggestion,
the Board’s decision
in ~pjII was clearly not limited to instances “where a transcript is on
file with a local siting authority.”
Contrast Sutter Brief at 6 with ~..pIll
at
*l9.22 (“the
City’s
failure to provide access to
the transcript rendered the proceeding fundamentally
unfair”).
Moreover,
as explained in its
brief,
Stock & Co was prejudiced by
misstatements
about the testimony at hearing, that were contained in
a letter Sutter’s attorney
sent to
the
Effingham County State’s Attorney, Ed Deters,
and then County Board Chairman Leon
Gobczynski.4
R.
at C368
to
R.
at C375A.
The County Board’s misplaced reliance on
this letter from Sutter’s counsel is evidenced
by its verbatim adoption of“Attachment
5”
to the letter,
even including the typographical errors (e.g., the word “staring”
in paragraph
7(a)),
as
its findings offact.
Compare Attachment
5, R.
at C375A,
with “Finding of
‘~
Subsequent to the
hearing in the proceedings
below,
Cha.irrnan
Leon Gobczynski resigned from the
County Board.
19
Fact,” R.
at C433.
This misplaced reliance was particularly prejudicial,
since none ofthe
County Board members who voted (including one member who did not
attend the
hearing) could verify the accuracy ofthe letter from Sutter’s counsel against the
transcript (which was unavailable).5
B.
The County Board Based Its Decision
on Recycling Rather Than
The
Statutory Criteria
In its brief,
Sutter concedes that any presumed impartiality
of the County Board
can be overcome,
stating,
in pertinent part, as follows:
The
burden on Petitioner Stock is,
in effect, to establish that Sutter had
such control over the “deliberative faculties” ofthe Board as to overcome
the presumed impartiality ofthe County Board.
Tate
et al.
v.
Macon
County Board et a!., PCB
No.
88-126, p.
8 (December
15,
1988)
Sutter Briefat
12-13.
(Emphasis added.)
As
explained further below and in
Stock & Co.’s
initial post-hearing brief, the
deliberative faculties of the County Board
were indeed directed
away from the statutory
criteria.
The
record demonstrates that Sutter induced the County Board to approve
local
siting, despite the proposed transfer station’s noncompliance with the statutory criteria,
using both
a “carrot” (its promise to continue and even expand recycling operations if
siting approval was granted) and a “stick”
(its statements that continued recycling
services would
be impossible,
if siting approval was denied).
R. at C190-C193.
~,
~
County Board member Charles Voelker’s prefatory statement in the County Board’s
decision regarding recycling at this location.
R.
at C437.
~
County Board meeting minutes for September
16,
2002,
indicating that
County Board member
Bob Shields voted to approve local
siting (R. at C437-439); transcript of August
14, 2002,
which
shows appearances by County Board members,
except for Bob Shields
(R. at C 127);
and filestamp
date on transcript indicating its filingby the County Clerk on
October 24, 2002.
20
In its brief, the County Board misquotes Mr.
Voelker’s prefatory statement as
follows:
The only offer of proofon that issue seems to be
a statement taken from
the minutes by Board member Charles Voelker at the September
16,
2002
Board meeting, before the vote, that “recycling is a valuable asset and
needed in
Effingham County.”
(R. C437).
County Briefat
9.
In fact, the minutes ofthe September
16,
2002, County Board meeting state as
follows:
Board Member C. Voelker said
recycling at this
location is
a valuable
asset
and needed in Effingham County.
R.
at C437.
(Emphasis added.)
S
Contrary to the misquotation
in the County’s
brief, one
can conclude that Mr.
Voelker was not simply commenting about the value ofrecycling in general during the
course ofthe Board meeting.
Indeed, the minutes ofthe September
16,
2002,
County
Board meeting are evidence that,
immediately prior to the County Board’s vote on the
siting application and the County Board’s discussion regarding whether each of the
criterion had
been met, Mr. Voelker addressed the value ofthe facility in
providing
recycling services at this location.
Furthermore, Tracy Sutter’s
direct examination testimony illustrates that the
recycling center was opened primarily to induce the
County Board to approve local
siting:
Q.
Is that
--
would that be
a stand-alone process, the recycling,
if you weren’t doing the transfer station in the near future?
A.
Economically impossible to
continue recycling without the
transfer station.
21
R.
at C190.
This “fledgling” recycling center was opened just prior to
Sutter’s application
being submitted to the County Board.
R.
at C414.
~
~
offer of proof in Tr.
at 68.
And,
common business practice and common
sense dictate that a businessman,
such as
Sutter,
does not voluntarily
and uniquely offer a service that he knows is economically
impossible.
~
Sutter brief at
12 (“Tracy Sutter
did testify that without the transfer
station
Sutter could not economically continue
its voluntary recycling service”).
Indeed,
even prior to the hearing,
County Board members
had traveled to the
site of Sutter’s
proposed transfer station,
and toured the
recycling facility.
R.
at C 191.
At the hearing, Tracy Sutter
quickly emphasized that Sutter had no intention
of
continuing the recycling operation unless the transfer station was approved by the County
Board.
R. at C190.
Sutter’s claims that “there is nothing in the record to demonstrate
that Mr.
Sutter’s statement
on recycling had any impact at all on the Effingham
County
Board,” is belied by the Record.
Sutter Brief at
13.
For example, a County Board
member sought
assurances from Sutter that
if local
siting was granted,
Sutter would
continue recycling.
R.
at C 192.
Another County Board
member inquired about whether
Sutter intended to
pick up any of the recyclable materials if local siting
was granted.
R.
at C193.
Ms. Deters described the County Board’s deliberations,
in pertinent part,
as
follows:
Even though recycling per
se may not have been officially
on the agenda,
the question whether Sutter
Sanitation Service receives its permit (for a
solid waste transfer station) and the continuation
of the fledgling recycling
service they provide, are bound together
—
like
it or not.
Package deal.
No
permit,
no
recycling.
As I recall Mr.
Grunloh verified that with a question
to
Tracy Sutter.
22
R.
at C414.
In its brief,
Sutter suggests that the only issues before the Effingham County
Board were the nine
statutory criteria,
stating in pertinent part as follows:
Fourth,
and perhaps most
significantly, is the recognition by the
S
Effingham County Board
itself that any recycling
issues could
not be part
of the deliberations on the issue
before it, namely whether the Application
satisfied the
9 statutory criteria.
Sutter Brief at
14.
(Emphasis
added.)
The Record demonstrates
otherwise.
Sutter was allowed to present testimony
regarding his recycling operation,
even though opponents to the facility were not allowed
to present
rebuttal testimony.6
R. at C19-C193; C289-C290.
The
County’s counsel,
too,
introduced information regarding the recycling center in his questions ofwitnesses,
including to
Sutter,
about signage at the site.
R.
at C193-C194.
Q.
Do you
--
do you
have any
signage,
or do you anticipate
signage directing traffic essentially for those
who are new to the recycling
process, directing them which way to go so that they’re not getting lost
with
trucks
that may be
in this facility?
A.
Currently there are
signs.
R.
at C193.
The importance ofthe recycling center at this location was
in fact
discussed during the County Board’s deliberations immediately before the County
Board voted to approve local
siting.
R. at ?437.
Furthermore,
immediately after
6
Contrast the Record with Sutter’s suggestion
that this issue was
somehow waived.
R. atC289-C292;
C437; and Sutter Briefat 15.
See ~
Landfill 33
Brief at 6 (explaining that Landfill 33
was
prejudiced by the assurances
it received from
the County Board that recycling would not be considered
when, in fact,
it was).
23
the parties moved their exhibits into evidence, the County Board
made it clear that
public comments about recycling would be considered.
R.
at C29 1.
Mr.
Grunloh:
*
*
*
We
still are going to accept any
information,
if somebody has a recycling standpoint to
this, that can be
submitted to us,
I would
think.
Mr.
Gobczynski:
That’s a great point.
And
--
and we
--
we
certainly will take that and
make that
all part ofthe record....
R.
at C291.
Plainly,
Sutter’s recycling operations were considered by the County Board.
And,
to a disinterested observer,
Sutter’s inducement of a promise to provide voluntary
recycling services if siting was approved may appear to
have resulted in the County
Board’s prejudgment of adjudicative facts with regard to the statutory criteria.
As
Sutter
correctly notes in its brief, the standard with regard to fundamental fairness is based upon
what a “disinterested observer” might
conclude:
Where
an
administrative official
is acting
in an
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 of the case in advance ofhearing it.”
S
Sutter Briefat
10.
Here, bias
or prejudice by
the County Board is established, because based
on the
Record “a
disinterested observer
might conclude that the administrative body, or its
members, had in
some measure adjudged the facts as well as the law ofthe case in
advance of hearing it.”
~çç e.g., County of Kankakee,
et al.
v.
City of Kankakee, et al,
Nos.
03-3 1,
03-33, 03-35 (consolidated)
at
*19 (Ill.
PCB, January 9,2003) (emphasis
added).
As noted
in Stock & Co.’s initial
post-hearing brief, the proceedings were also
potentially affected by bias
stemming from familial relationships that were not disclosed.
24
C.
Potential Bias Due to Non-Disclosure of Familial Relationships
In
its
brief,
Sutter incorrectly assumes that Stock & Co.
is alleging that the
proceedings before the County Board were fundamentally unfair ~
~
Stock &
Co.
because Duane
Stock
is the first
cousin of County Board member Carolyn Willenburg,
stating in pertinent part,
as follows:
In addition,
Petitioner Stock alleged that the proceedings were
fundamentally unfair
in three specific aspects.
Petitioner Stock claimed
that:
there was an undisclosed
familial relationship between Duanne
sic
Stock
(the representative of Stock and the participant at the Effingham County
Board hearing) and an Effingham County Board member.
Sutter Briefat
3-4.
The County Board also
incorrectly assumes that Stock
& Co.’s fundamental
fairness argument is based upon some bias
between these first cousins,
stating as follows:
Stock’s second suggestion ofunfairness is made ofthe existence ofsome
bias to Stock and Company by Board Member Carolyn Willenburg’s first
cousin relationship to
Duane Stock.
County Brief at 8.
Contrary to
Sutter and the County Board’s suggestion,
however,
Stock & Co.
is
not
asserting that the non-disclosure of Duane Stock’s relationship to
a County Board
member caused the proceedings to
be fundamentally unfair as to
Stock &
Co.
Indeed,
Stock & Co.
has never limited its
argument with regard to
fundamental fairness and non-
disclosure of familial relationships to the Duane
Stock
—
Carolyn Willenburg relationship
alone.
~,
e.g.,
Stock & Co.’s Petition at
3
(“the proceedings were potentially affected
by bias stemming from familial
relationships that were not disclosed”).
Neither the
County Board nor Duane Stock (who was admittedly naive to such proceedings)
25
disclosed his relationship as first
cousin to County Board member
Carolyn Willenburg.
R.
at
C1-C439,
Tr.
at 49.
Nevertheless, Stock &
Co. knew that Duane
Stock’s
relationship to a County Board member had not been disclosed and, based upon the
available information,
suspected that other familial relationships may not have been
disclosed either.
See,
~
Stock & Co.’s Petition
at 3.
Stock & Co.
retained counsel,
and through discovery in this proceeding,
Stock &
Co.’s counsel sought information regarding other such familial relationships that
had not
been disclosed by the County Board.
It was not until the hearing on fundamental
fairness,
however, that
Stock &
Co. actually obtained the testimony of Sutter’s most
ardent supporter, Nancy Deters,
that she was the mother ofthe County Board’s attorney.
See
Tr.
at 28-39.
Again,
bias or prejudice by the County Board is established when the Record
demonstrates
that
“a disinterested
observer might conclude that the administrative body,
or its members, had in
some measure adjudged the facts as well as the
law of the case in
advance ofhearing it.”
~,
~
County of Kankakee,
et al. v.
City of Kankakee, et al,
Nos.
03-3 1, 03-33, 03-35
(consolidated) at
*19 (Ill.
PCB, January 9, 2003).
(Emphasis
added.)
S
S
Nancy Deters’
testimony was that she and her
son “rarely” agree about anything
(Tr.
at 30).
As the term “rarely” is not all-inclusive,
it leaves open
to the disinterested
observer that this
may be one
issue on which she and Ed Deters agree.
Similarly, while
she was unable to recall if she spoke with her son
(Tr. at
30) or County Board Members
(Tr.
at 31), there is no evidence in the Record that she did not.
26
When combined with Mr. Deters’
suggestion that he might have a role in
decisionmaking process (R.
at C 130) and his
active
role at the hearing (R.
at C269,
C193-195),
a
disinterested observer might conclude that Ed Deters’
representation ofthe
County Board was materially limited by his
responsibilities to
his mother, or by his own
interests in not taking a position in
opposition to that of his mother.
A disinterested
observer might further conclude that,
because the mother ofthe County Board’s attorney
was an active supporter of local
siting approval, and because the County’s
attorney took
an active role during the hearing, including in asking leading questions that suggested
that the County Board need not trouble itself with technical
concerns because they would
be considered by the IEPA, and that signage for traffic for the recycling center would be
available, the County Board that received his counsel may have,
in some measure,
adjudged the facts as well as the
law ofthe case in
advance of hearing it.
At a minimum, a remand with disclosure ofthese relationships is therefore
required.
The participants and the public at large had the right to know about such
relationships,
especially the one
between the most ardent supporter ofthe recycling
center and transfer station and the attorney on whom the decisionmaker relied for its
counsel.
D.
Tours Of The Site
By The
County, Without All Parties Invited
In addition,
as explained further in Stock &
Co.’s brief, the Record indicates that
exparte
contacts occurred between the Applicant and the County Board after the siting
application had been filed, thereby biasing the County Board and resulting in its
decision
to approve local siting even though the criteria had not
been met.
For example, meeting
minutes ofthe County Board refer to a decision to tour the site on July
31,
2002,
27
coincidentally at the same time and on the same date that the public hearing had
originally been scheduled and then inexplicably reset,
well after the siting application had
been filed.
R.
at C109-CI10;
C125.
Nowhere does the Record reflect that this tour did
not occur.
R.
at C109-C110;
C125.
Furthermore, the Waste Committee ofthe County
Board
had been to
the site approximately one month prior to Sutter’s application being
filed.
R. at C191;
Tr.
at
67-68.
Fundamental fairness requires that representatives ofall
parties to the siting
proceeding be given
an opportunity to
accompany the local governing body when it takes
such a tour.
Spill. et a!.
v.
City
of Madison and Metro-East,
LLC, PCB
96-91,
1996 Ill.
Env. Lexis
250 at
*26 (IPCB March 21,
1996).
Here, there is no evidence that the tour
by the County Board planned for July
31, 2002,
did not occur,
and yet the evidence
is
clear that the public was not invited.
Stock & Co.
and other opponents of the transfer
station were
prejudiced by the fact that the general public was excluded from the tour and
not given equal access to information obtained from the tour by the participating County
Board members.
See, ~
offer of proofin Tr.
at 67-74.
The County Board’s failure to
include the information in the Record regarding the tour that
Sutter stated occurred
immediately before the application was filed and,
more importantly, the tour that appears
to have occurred after the siting application was filed, where the public
was not invited
to
attend
or respond, rendered the process fundamentally unfair.
~,
~ffl
at *29.
~
Kankakee at *21.
IV.
REVERSAL
(OR, AT A MIMIMUM, REMAND) OF THE COUNTY
BOARD’S DECISION IS
REQUIRED
S
Section
3 9.2(a) of the Act
sets forth criteria that must be
met prior to the approval
of a siting application for
a waste transfer station.
415
ILCS
5/39.2(a).
The General
28
Assembly
has charged the County Board with resolving the technical
issues set forth
therein,
including the
public health ramifications associated with the facility’s design.
jj
The applicant, Sutter,
had the burden ofproofand was required to
demonstrate that the
criteria were met.
Sutter did not do so.
It
is undisputed that the regional waste disposal capacity is already
adequate.
R.
at
C 142.
Sutter did not demonstrate that the transfer station
is needed to accommodate
the waste
needs of the area intended to
be served.
Sutter also failed to
demonstratethat
the facility, an improvised design with
minimal safeguards proposed to be
retrofitted to a
former grain elevator,
is located
so as to minimize incompatibility and the effect on
the
value of the surrounding property.
More importantly,
Sutter failed
to demonstrate that
the facility
is proposed to be located,
designed and operated so as to protect public
health,
safety,
and welfare.
The County Board’s decision to
approve local siting
is against the
manifest weight of the evidence and must be reversed.
In addition, the proceedings before the County Board were not fundamentally fair
as to
Stock & Co.
The transcript of the hearing was not made available by the County
Board until
after the deadline for appeal of the County Board’s decision, hampering
Stock & Co.
in its
efforts to
formulate the basis for its appeal.
Sutter induced the County
Board to approve local
siting, despite Sutter’s failure to
demonstrate that the statutory
criteria had been
met, by promising to
continue to provide recycling services ifapproval
was granted.
The mother ofthe County Board’s attorney was a highly vocal advocate for
Sutter’s recycling services and
hence siting approval
--
yet this mother/son relationship
was never disclosed.
And, members of the County Board toured
Sutter’s site
at least
once,
and possibly twice, with the second
one scheduled well after the siting application
29
was filed, but the substance ofsuch tour(s) was not disclosed and persons opposed to the
transfer station were not invited to
participate.
Due to the failure of the applicant to provide sufficient information on the above
statutorily mandated criteria, the County Board’s decision to
grant siting approval for the
proposed transfer station is against the manifest weight ofthe evidence.
As a result, the
County Board’s decision must be reversed.
The lack of fundamental fairness surrounding
the hearing, decision, and preparation ofthe record for appeal also requires reversal of the
siting approval, or in the alternative, that the matter be remanded to
the County Board for
a new hearing.
WHEREFORE, for the above-listed reasons, Petitioner, STOCK & COMPANY,
LLC,
asks that the Illinois Pollution Control Board reverse the Effingham County
Board’s approval ofthe siting ofa solid waste transfer station requested by the applicant,
Sutter
Sanitation Services,
and grant in
favor of
STOCK &
COMPANY,
LLC,
any other
relief that the Illinois Pollution Control Board deems appropriate.
STOCK &
COMPANY,
LLC,
Petitioner,
BY:___
One of Its Attorneys
Dated: January
16,
2003
Christine
G.
Zeman
S
David M.
Walter
HODGE
DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
STOK:00
1/Fil/Reply
Brief
30
