P97233D.PDF

ILLINOIS POLLUTION CONTROL BOARD

November 6, 1997

CITIZENS OPPOSED TO ADDITIONAL

LANDFILLS and HARVEY PITT,

individually and as a member of Citizens

Opposed to Additional Landfills,

Petitioners,

GREATER EGYPT REGIONAL

ENVIRONMENTAL COMPLEX a/k/a

GERE PROPERTIES, INC., and the

PERRY COUNTY BOARD of

COMMISSIONERS,

Respondents.

)

PCB 97-233

(Pollution Control Facility

Siting Appeal)

MR. KENNETH A. BLEYER, OF THE LAW OFFICE OF KENNETH A. BLEYER,

APPEARED ON BEHALF OF THE PETITIONERS;

MR. JERRY B. SMITH APPEARED ON BEHALF OF GREATER EGYPT REGIONAL

ENVIRONMENTAL COMPLEX; AND

MR. CHARLES F. HELSTEN, OF HINSHAW & CULBERTSON, APPEARED ON

BEHALF OF THE PERRY COUNTY BOARD OF COMMISSIONERS.

OPINION AND ORDER OF THE BOARD (by C.A. Manning):

On June 23, 1997, the petitioners, Citizens Opposed to Additional Landfills

(C.O.A.L.) and Harvey Pitt, individually and as a member of C.O.A.L., filed a petition for

review of a local siting decision pursuant to Section 40.1 of the Environmental Protection Act

(Act). 415 ILCS 5/40.1 (1996). Specifically, petitioners are appealing the Perry County

Board of Commissioners’ (County) decision of May 27, 1997, to grant local siting approval

for a pollution control facility to the Greater Egypt Regional Environmental Complex a/k/a

Gere Properties Inc. (G.E.R.E.). Petitioners challenge the County’s decision, arguing that (1)

the County lacked jurisdiction; (2) the proceeding before the County was fundamentally unfair;

and (3) the decision of the County was against the manifest weight of the evidence on all the

siting criteria of Section 39.2 of the Act (415 ILCS 5/39.2 (1996)). For the following

reasons, the Board finds that (1) the County had jurisdiction, (2) that the proceeding before the

County

was fundamentally fair, and (3) that the decision of the County granting siting approval was

not against the manifest weight of the evidence.

BACKGROUND

This petition for review arose from a previous case before the Board in which the

Board remanded the proceedings to Perry County. See Citizens Opposed to Additional

Landfills and Harvey C. Pitt v. Greater Egypt Regional Environmental Complex a/k/a Gere

Properties, Inc., and the Perry County Board of Commissioners (December 5, 1996), PCB 97-

29. On March 17, 1992, Laidlaw Waste Systems, Inc. (Laidlaw) filed an application for

regional pollution control facility local siting approval with the Perry County Board. After

hearings, the county board granted approval. On appeal, the Board affirmed the county

board’s decision (see C.O.A.L. (Citizens Opposed to Additional Landfills) v. Laidlaw Waste

Systems, Inc. and Perry County Board of Commissioners (PCB 92-131), January 21, 1993).

On appeal to the appellate court, the court reversed the Board’s decision and remanded to the

Board for further proceedings. On December 12, 1995, the Board remanded the matter to the

county board to allow Laidlaw to withdraw its application.

Following remand to the Perry County Board, Laidlaw withdrew its application and

elected not to pursue development of the landfill project. Laidlaw assigned permission to use

the original application and the information contained therein to Philip L. Alvis. Mr. Alvis is

the owner of the proposed landfill property and the sole stockholder in G.E.R.E. Mr. Alvis in

turn assigned permission to use Laidlaw’s application to G.E.R.E.

On January 23, 1996, G.E.R.E. filed its application with the Perry County Board using

the data supplied by Laidlaw pursuant to the prior assignments. The G.E.R.E. application also

supplied updated information. Hearings were held by the Perry County Board on the second

application on April 25 and 26, 1996. The county board voted to grant siting approval to

G.E.R.E. on July 9, 1996. An appeal followed to the Board on August 9, 1996, and a hearing

was held on October 2, 1996, before a Board hearing officer. The Board issued a decision on

December 5, 1996, and a clarification on January 17, 1997, remanding the matter to the Perry

County Board for further proceedings to allow the public to learn the content of

ex parte

communications between attorneys for the county and the applicant and have the opportunity to

comment. See C.O.A.L.

et al.

v. G.E.R.E.

et al.

(December 5, 1996), PCB 97-29, slip op.

at 15.

Specifically, the Board determined that the Perry County Board members had instructed

the Perry County State’s Attorney to investigate conditions to be imposed upon G.E.R.E. as

part of the siting approval. The Perry County State’s Attorney in turn had conversations with

the attorney for G.E.R.E. concerning the possible conditions. The Board found that these

conversations were

ex parte

contacts and that the contacts affected the decision of the County.

The

ex parte

contacts involved gathering information and drafting conditions to be imposed

upon the applicant G.E.R.E. The matter was remanded in order to allow the County to

conduct further hearings and place the nature of the discussions into the record.

The Board also thoroughly discussed the issue of jurisdiction and found that G.E.R.E.

complied with Section 39.2(b) of the Act by relying on the County Treasurer’s 1993 book

when mailing notices. The Board further found that the County was not divested of

jurisdiction by G.E.R.E.’s failure to notify a landowner who did not appear in the County

Treasurer’s 1993 books.

On January 23, 1997, the Board issued an order clarifying its December 5, 1996, order

and required, at a minimum, that the County should:

Conduct one or more public hearings to place on the record the questions

asked by the County and the answers provided by G.E.R.E., and any

discussions that took place between them, and finally to allow a public

comment period of at least 30 days. Specifically, at such hearings the

County shall ask the applicant, G.E.R.E., the same questions which it

asked that were the basis of the

ex parte

contacts and G.E.R.E. shall

respond with the same answers it gave to the County when those

questions were originally posed. Participants shall have the opportunity

to respond to those questions and answer and present evidence

concerning the added conditions requiring to: perform a feasibility study

of increasing a roadway, raise the berm to fifteen (15) feet above the

100-year flood plain, develop a geotechnical study, perform measures to

secure the slope stability on the west edge of the fill, take steps to

address the compressibility of subsurface materials, perform monthly

water sampling on the site, and require that vehicles exiting the site be

cleaned before leaving; all of these concern the criteria of Section 39.2

of the Act;

Provide public notice of the hearing in accordance with the requirements

of Section 39.2(d) of the Environmental Protection Act (415 ILCS

5/39.2(d));

Render a new decision based upon the record in this case which will

include the information acquired during the public hearing and comment

period; and

Vote and render its decision no later than 120 days after receipt of this

order.

The Perry County Board held another hearing on April 23, 1997 (see C1 - C140),

and

on May 27, 1997, the Perry County Board once again voted to grant siting approval (C313-

References to the Perry County Board hearing will be cited as “C_.” References to the

Board’s hearing in this matter will be cited as “R_.” References to C.O.A.L.’s post-hearing

brief will be cited as “Pet. Br.,” and references to the County’s brief will be cited as “Resp.

Br.”

C319). The instant appeal to the Board followed on June 23, 1997. A hearing before Chief

Hearing Officer Michael L. Wallace was held on August 28, 1997. No evidence was

presented at the Board’s hearing on August 26, 1997. See R4-R5. Post-hearing briefs were

filed by C.O.A.L. (Pet. Br.) and the County (Resp. Br.). G.E.R.E. did not file a brief.

In the present appeal, C.O.A.L initially challenges the siting decision on three grounds:

(1) the Perry County Board failed to comply with the remand order; (2) the Perry County

Board’s decision was against the manifest weight of the evidence on all Section 39.2 criteria;

and (3) the Perry County Board was involved in a secret meeting to discuss matters relating to

the application, from which the petitioners were prohibited from attending. Pet. Br. at 2.

C.O.A.L. also restates and reaffirms their objection on the issue of jurisdiction on the grounds

that not all property owners within 250 feet each direction of the lot line of the subject

property were given notice pursuant to Section 39.2(b) of the Act. Pet. Br. at 2-3. The Board

will discuss each of the issues presented in turn. For the reasons explained below, we find that

the procedures before the Perry County Board complied with the adjudicative due process

standards of fundamental fairness and that the decisions of the Perry County Board on the

challenged criteria were not against the manifest weight of the evidence.

ELEMENTS OF REVIEW

At the local level, the siting process is governed by Section 39.2 of the Act. 415 ILCS

5/39.2 (1996). Section 39.2 provides that local authorities are to consider as many as nine

criteria when reviewing an application for siting approval. Section 39.2(g) of the Act provides

that siting approval procedures, criteria, and appeal procedures provided for in Section 39.2

shall be the exclusive siting procedures for new pollution control facilities. However, the local

siting authority may develop its own siting procedures, so long as those procedures are

consistent with the Act and supplement, rather than supplant, those requirements. See Waste

Management of Illinois v. PCB, 175 Ill. App. 3d 1023, 530 N.E.2d 682, 692-93 (2nd Dist.

1988).

Section 40.1 of the Act requires the Board to review the proceeding before the local

siting authority to assure fundamental fairness. In E & E Hauling, Inc. v. PCB, 116 Ill. App.

3d 586, 451 N.E.2d 555 (2nd Dist. 1983), the appellate court found that although citizens

before a local decisionmaker are not entitled to a fair hearing by constitutional guarantees of

due process, procedures at the local level must comport with due process standards of

fundamental fairness. The court held that standards of adjudicative due process must be

applied. See Industrial Fuels & Resources v. PCB, 227 Ill. App. 3d 533, 592 N.E.2d 148

(4th Dist. 1992); see also Tate v. PCB, 188 Ill. App. 3d 994, 592 N.E.2d 148 (4th Dist.

1989). Due process requirements are determined by balancing the weight of the individual’s

interest against society’s interest in effective and efficient governmental operation. Waste

Management, 175 Ill. App. 3d at 1024, 530 N.E.2d at 693. The manner in which the hearing

is conducted, the opportunity to be heard, the existence of

ex parte

contacts, prejudgment of

adjudicative facts, and the introduction of evidence are important, but not rigid, elements in

assessing fundamental fairness. Hediger v. D & L Landfill, Inc. (December 20, 1990), PCB

90-163.

The Board's authority when reviewing a local decision regarding the siting of a

pollution control facility is well established in the Act and case law. When examining local

decisions on the nine criteria found in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (1996)),

the Board must determine whether the local decision is against the manifest weight of the

evidence. The Board, on review, is not to reweigh the evidence and where, as here, there is

conflicting evidence, the Board is not free to reverse merely because the lower tribunal credits

one group of witnesses and does not credit the other. Fairview Area Citizens Task Force v.

PCB, 198 Ill. App. 3d 541, 555 N.E.2d 1178, 1184 (3rd Dist. 1990); Tate, 188 Ill. App. 3d

at 996, 544 N.E.2d at 1195; Waste Management of Illinois, Inc. v. PCB, 187 Ill. App. 3d 79,

543 N.E.2d 505, 507 (2nd Dist. 1989). Merely because the local government could have

drawn different inferences and conclusions from conflicting testimony is not a basis for this

Board to reverse the local government's findings. File v. D & L Landfill, Inc. (August 30,

1990), PCB 90-94,

aff’d.

File v. D & L Landfill, Inc., 219 Ill. App. 3d 897, 579 N.E.2d

1228 (5th Dist. 1991).

DISCUSSION

Jurisdiction

C.O.A.L. initially raises the issue of whether the County had jurisdiction to grant the

siting approval. Pet. Br. at 2-3. C.O.A.L. restates and reaffirms their objection that the

County was without jurisdiction to have ruled on the siting application because not all of the

owners of property within 200 feet of the lot line of the subject property were given notice

under Section 39.2(b) of the Act. 415 ILCS 5/39.2(b) (1996). In support of their argument,

C.O.A.L. relies on the evidence and briefs in the previous case. The Board found in PCB 97-

29 that G.E.R.E. complied with Section 39.2(b) of the Act by relying on the County

Treasurer’s office 1993 book when mailing notices. See C.O.A.L. (December 5, 1996), PCB

97-29, slip op. at 9. Since C.O.A.L. presents no new arguments on this issue, the Board

reaffirms its earlier decision on the jurisdictional issue.

Fundamental Fairness

C.O.A.L. initially raised as an issue in their September 16, 1997, post-hearing brief

the conduct of the Perry County Board in its attempt to comply with the Board’s remand

order. Pet. Br. at 3. In its post hearing brief, C.O.A.L. has now waived this issue stating:

“[i]t appears to petitioners after further review of the proceedings that no fault could be taken

with the manner and substance of the presentation made by the County at the hearing below.

It therefore serves no purpose to perpetuate this issue.” Pet. Br. at 3-4. Since C.O.A.L.

indicates that they have waived this issue, the Board sees no reason to address this issue on

appeal.

C.O.A.L. does argue that the closed meeting held by the Perry County Board on April

14, 1997, one week before the hearing on the application, was fundamentally unfair. See Pet.

Br. at 15-19. Neither C.O.A.L. nor G.E.R.E. attended this meeting. The stated purpose of

the closed meeting was to discuss the potential litigation in the siting approval. C.O.A.L.

argues that such a meeting prevents the County from providing a fair proceeding. Pet. Br. at

15-19.

The County responds that Section 39.2(d) (415 ILCS 5/39.2(d) (1996)) does not

prohibit it from holding a closed session concerning site approval. Resp. Br. at 8-13. The

County continues that Section 39.2(d) actually anticipates a closed session by using the

language “at least one public hearing is to be held.” Resp. Br. at 8. The County further

argues that closed meetings do not constitute a violation of fundamental fairness. Resp. Br. at

9-10. The County asserts that the doctrine of fundamental fairness is violated only where

opponents are denied access to information or where there have been

ex parte

contacts which

result in the exchange of information to which the opponents do not have access. Resp. Br. at

Although the parties allude to this closed meeting in their post hearing briefs, there has

been no evidence presented that indicates such a meeting took place. C.O.A.L.’s verified

petition at the county hearing asserts that the closed meeting occurred and counsel for

C.O.A.L. and the county argued the point before the county hearing officer at the county‘s

April 23, 1997, hearing. C7-C20. Inasmuch as C.O.A.L. has made this an issue on appeal

and relying on the county record filed with the Board, we will assume that such a closed

meeting occurred on April 14, 1997. The stated purpose of the meeting was to allow the

County to confer with the County’s attorney concerning imminent litigation and neither

C.O.A.L nor G.E.R.E. representatives nor members of the public were allowed to attend the

closed meeting. C13. There have been no allegations or evidence of new

ex parte

communications in or surrounding this closed meeting. The closed meeting itself was

unrelated to the remand hearing conducted on April 23, 1997.

The Board finds that the closed meeting held by the County standing alone does not

violate the principles of fundamental fairness. The Board does not have the statutory authority

to enforce the Open Meetings Act (5 ILCS 10/1 (1996)), and therefore, any such allegation

does not, in and of itself, establish a violation of fundamental fairness. Rather, the relevant

question is whether the local proceeding was fundamentally unfair as C.O.A.L. alleges. See

C.O.A.L. v. Laidlaw Waste Systems, Inc. (January 21, 1993), PCB 92-13. From the record

before the Board, the Perry County Board complied with the Board’s orders of December 5,

1996, and January 23, 1997, by conducting the April 23, 1997, hearing. Perry County

presented witnesses to discuss or explain the

ex parte

communications from the summer of

1996 and C.O.A.L. was allowed to cross-examine those witnesses. C.O.A.L. was allowed to

call witnesses itself to challenge the conditions attached to the siting approval and citizens were

allowed to make comments to the hearing officer and the Perry County Board. C.O.A.L. has

not cited any authority that holding a closed meeting with its attorney would cause the process

to be fundamentally unfair.

The Board finds that the closed meeting of the Perry County Board did not make the

April 23, 1997, hearing fundamentally unfair. The Board’s order directing an additional

hearing was for the purpose of putting the

ex parte

contacts into the record and to allow for the

presentation of witnesses concerning the conditions imposed by the County Board. Section

39.1 only requires that parties before a local governing body be given the opportunity to

present evidence and object to the evidence presented, but they need not be given the

opportunity to cross examine opposing parties witnesses. See Southwest Energy Corp. v.

PCB, 275 Ill. App. 3d 84, 655 N.E.2d 304 (4th Dist. 1995). An unrelated event such as the

closed meeting standing alone and without any allegation of impropriety does not make the

entire process unfair. See Daly v. PCB, 264 Ill. App. 3d 968, 637 N.E.2d 1153 (1st Dist.

1994) (a public rally held in the same auditorium prior to the public hearing was held not to be

part of the hearing and did not cause the hearing to be fundamentally unfair).

In its post-hearing brief, C.O.A.L. additionally argues that a closed meeting conducted

on June 25, 1996, rendered the proceedings in this matter fundamentally unfair. Pet. Br. at

16-17. As noted earlier, the Perry County Board rendered it first decision to grant local siting

approval on July 9, 1996. That decision was appealed to the Board by C.O.A.L on August 9,

1996, on the ground that the county proceedings were fundamentally unfair. Because the June

25, 1996, meeting occurred during the previous siting proceedings, the Board does not

consider the closed meeting of June 23, 1996, properly before it on this appeal. The June 23,

1996, meeting occurred in the siting approval of July 9, 1996, and should have been the

subject of the appeal in C.O.A.L., PCB 97-29.

Siting Criteria

On May 27, 1997, the Perry County Board passed a resolution finding that the

applicant G.E.R.E. had met all nine criteria. C313-C315. Additionally, the Perry County

Board found that siting approval would be based on eight conditions and the siting approval

was granted subject to those eight conditions. C315-C318.

C.O.A.L. argues broadly that the County’s decision to grant siting approval was

against the manifest weight of the evidence for criteria “i”-“ix” of Section 39.2 of the Act and

take exception to certain of the conditions. Pet. Br. at 4-14.

First, C.O.A.L. argues that criteria Nos. 7, 8, and 9 are not applicable to this proposed

landfill and C.O.A.L. believes it is incredible that the Perry County Board found in its written

decision that sufficient evidence was presented for these three criterion. C.O.A.L. argues that

it is illogical to find sufficient evidence for criteria that do not apply and that no evidence was

offered. Pet. Br. at 4-9. Criteria Nos. 7, 8, and 9 read as follows:

(G) CRITERION #7: IF THE FACILITY WILL BE TREATING, STORING

OR DISPOSING OF HAZARDOUS WASTE, AN EMERGENCY RESPONSE

PLAN EXISTS FOR THE FACILITY WHICH INCLUDES NOTIFICATION,

CONTAINMENT, AND EVACUATION PROCEDURES TO BE USED IN

CASE OF AN ACCIDENTAL RELEASE.

(H) CRITERION #8: IF THE FACILITY IS TO BE LOCATED IN A

COUNTY WHERE THE COUNTY BOARD HAS ADOPTED A SOLID

WASTE MANAGEMENT PLAN CONSISTENT WITH THE PLANNING

REQUIREMENTS OF THE LOCAL SOLID WASTE DISPOSAL ACT OR

THE SOLID WASTE PLANNING AND RECYCLING ACT, THE FACILITY

IS CONSISTENT WITH THAT PLAN.

(I) CRITERION #9: IF THE FACILITY WILL BE LOCATED WITHIN A

REGULATED RECHARGE AREA, ANY APPLICABLE REQUIREMENTS

SPECIFIED BY THE BOARD FOR SUCH AREAS HAVE BEEN MET.

The County argues that the underlying application clearly indicates that the facility will

not be treating, storing, or disposing of hazardous waste. The County argues that its

affirmative vote on Criteria No. 7 indicates that the applicant had demonstrated in the record

that it would not be handling hazardous waste and was therefore proper. Resp. Br. at 2-3.

The County further asserts that Criteria Nos. 8 and 9 are also not applicable. Perry

County does not have a solid waste management plan nor is the facility to be located in a

regulated recharge area. The wording of the county board’s resolution indicates that the word

“if ” preceded each criteria and to the extent that each criterion was applicable, the applicant

had met its burden of proof. Resp. Br. at 3-4.

The Board finds that the county board’s vote on these three criteria does not conflict

with the evidence. Paragraphs G, H, and I of the resolution deal with Criteria Nos. 7, 8, and

9 and are framed alternatively,

i.e.

“if the facility . . .”. The Perry County Board voted that

the applicant demonstrated compliance with these criteria. The County’s engineer testified that

Criteria Nos. 7, 8, and 9 did not apply to the application. The meaning is quite clear that the

County Board found that the record established that the facility would not be handling

hazardous waste. The Perry County Board is aware that it does not have a solid waste

management plan and that the facility is not located in a regulated recharge area.

C.O.A.L. also argues that other criteria have not been met. Pet. Br. at 9-19. In its

brief, C.O.A.L. discusses the three conditions attached by the County in its resolution of April

23, 1997. C.O.A.L. does not address, either through reference to the record or in its brief,

any of the other criteria. Accordingly, not having any contrary evidence or argument, the

Board does not find the challenged criteria against the manifest weight of the evidence. See

Residents Against a Polluted Environment

et al

. v. County of LaSalle,

et al

. (June 19, 1997),

PCB 97-139.

C.O.A.L. has challenged the conditions that were attached to the siting approval. The

challenged conditions include:

(A)

Increasing the elevation of the north-south roadway;

(B)

Raising the berm around the landfill; and

(C)

The geotechnical study and analysis of the groundwater

protection, and slope design and stability considerations.

C.O.A.L. presented testimony at the April 23, 1997, hearing concerning these

conditions. C79-C122. C.O.A.L. argues that the testimony of Mr. Edward Robinson and

Mr. William Holt regarding these conditions demonstrates that the county board decision was

against the manifest weight of the evidence. C.O.A.L. asserts that a geotechnical study should

have been done before granting siting approval as the county board would not have any basis

to grant approval on whether the facility was designed to minimize damages.

Neither G.E.R.E. nor the County offered any additional testimony concerning the

conditions at the April 23, 1997, hearing. In its brief, the County generally argues that the

record compiled in 1996 and 1997 demonstrates overwhelming evidence to support the County

Board’s decision. Resp. Br. at 4.

Conditions have been attached to siting approvals and have withstood challenges. See,

City of East Peoria v. PCB, 117 Ill. App. 3d 673, 452 N.E.2d 1378 (3rd Dist. 1983); County

of Lake v. PCB, 120 Ill. App. 3d 89, 457 N.E.2d 1309 (2nd Dist. 1983). In County of Lake,

the court held that the language of Section 39.2 provided that local governmental units could

take into consideration the technical details relating to design and operation of a landfill.

Conditions can be imposed “to accomplish the purposes” of Section 39.2 which means that

local authorities can impose “technical” conditions on siting approval. County of Lake, 120

Ill. App. 3d 89, 457 N.E.2d at 1315.

CONCLUSION

The Board has carefully considered each of the arguments raised by petitioners in

reviewing the County’s decision to grant siting approval to G.E.R.E. and has not found the

siting proceeding before the County was fundamentally unfair, nor that the County’s findings

regarding the siting criteria are against the manifest weight of the evidence. Therefore, the

Board affirms the County’s siting approval rendered on May 27, 1997.

This opinion constitutes the Board’s findings of fact and conclusions of law in this

matter.

ORDER

For the foregoing reasons the Board affirms the May 27, 1997, decision of the Perry

County Board of Commissioners granting siting approval to G.E.R.E.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this

order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d

R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the 6th day of November 1997, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board