ILLINOIS POLLUTION CONTROL BOARD
October 2, 2003
BYRON SANDBERG,
Petitioner,
v.
THE CITY OF KANKAKEE, ILLINOIS
CITY COUNCIL, TOWN AND COUNTRY
UTILITIES, INC., and KANKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
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PCB 04-33
(Third-Party Pollution Control Facility
Siting Appeal)
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Petitioner,
v.
THE CITY OF KANKAKEE, ILLINOIS
CITY COUNCIL, TOWN AND COUNTRY
UTILITIES, INC., and KANKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
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PCB 04-34
(Third-Party Pollution Control Facility
Siting Appeal)
COUNTY OF KANKAKEE, ILLINOIS, and
EDWARD D. SMITH, KANKAKEE
COUNTY STATE’S ATTORNEY,
Petitioners,
v.
THE CITY OF KANKAKEE, ILLINOIS
CITY COUNCIL, TOWN AND COUNTRY
UTILITIES, INC., and KAKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
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PCB 04-35
(Third-Party Pollution Control Facility
Siting Appeal)
(Consolidated)
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ORDER OF THE BOARD (by N.J. Melas):
The Board received three separate petitions requesting the Board to review an August 19,
2003 decision of the City Council of the City of Kankakee (City) to grant siting approval for a
landfill. In its decision, the City granted the application of Town and Country Utilities, Inc. and
Kankakee Regional Landfill, L.L.C. (Town & Country) to site a pollution control facility, to be
called the Kankakee Regional Landfill (facility). The facility is a 400-acre site to be located in
Otto Township within the City’s limits, will receive 3,500 tons of waste per day, and provide
disposal capacity for at least 30 years.
The Board reversed the City’s decision to grant siting approval for the same facility in
prior appeals. County of Kankakee and Edward D. Smith, States Attorney of Kankakee County
v. City of Kankakee, Illinois, The City of Kankakee, Illinois City Council, Town and Country
Utilities, Inc. and Kankakee Regional Landfill, L.L.C.; Byron Sandberg v. City of Kankakee,
Illinois,
et al
.; and Waste Management of Illinois v. City of Kankakee, Illinois,
et al
., PCB 03-
31, 03-33, 03-35 (consol.), (Jan. 9, 2003). In that proceeding, the Board reversed the City’s
decision as against the manifest weight of the evidence on one of nine criteria a local siting
authority must consider when deciding whether to grant siting to a pollution control facility.
Byron Sandberg, Waste Management of Illinois, Inc. (Waste Management), and the
County of Kankakee and Edward D. Smith, States Attorney of Kankakee County (the County),
in petitions docketed as PCB 04-33, 04-34, and 04-35, respectively, all appeal on the grounds
that the City’s decision on siting criteria was against the manifest weight of the evidence.
Further, petitioners Waste Management and the County argue the City lacked jurisdiction due to
Town & Country providing defective notice. The County appeals on two additional grounds:
(1) the procedures the City used to reach its siting decision were fundamentally unfair due to bias
and
ex parte
contacts; and (2) the City’s decision should be reversed because Town & Country
failed to submit a complete siting application.
For the reasons set forth below, the Board accepts the petitions and consolidates them for
hearing.
THIRD PARTY APPEALS
Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (2002) allows certain third parties to
appeal a local government decision granting approval to site a pollution control facility. Third
parties who participated in the local government’s public hearing and who are so located as to be
affected by the proposed facility may appeal the siting decision to the Board. 415 ILCS
5/40.1(b) (2002); 35 Ill. Adm. Code 107.200(b). The petition for review must, among other
things, specify the grounds for appeal and include a copy of the local government’s siting
decision. 35 Ill. Adm. Code 107.208. The third party must file the petition within 35 days after
the local government approves siting. 415 ILCS 5/40.1(b) (2002); 35 Ill. Adm. Code 107.204.
Unless the Board determines that the third party’s petition is “duplicative or frivolous,” the
Board will hear the petition. 415 ILCS 5/40.1(b) (2002); 35 Ill. Adm. Code 107.200(b).
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All three petitioners state that they appeared and participated in the City’s public hearing.
The petitioners specify the grounds for the appeal and include a copy of the City’s siting
decision. Each petition meets the content requirements of 35 Ill. Adm. Code 107.208. Mr.
Sandberg filed his petition on September 18, 2003, and Waste Management and the County filed
their petitions on September 22, 2003. Therefore, each petitioner filed its petition within 35
days after the City’s August 19, 2003 decision.
HEARING AND DECISION DEADLINE
An action before the Board is duplicative if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id
. No evidence
before the Board indicates that any of the three actions are duplicative or frivolous. The Board
accepts the third-party petitions for hearing.
On its own motion, the Board consolidates all three appeals for hearing. Each petition
involves the same burden of proof and addresses common issues and respondents. Thus, for
reasons of administrative economy, consolidation is appropriate.
See
Sierra Club v. Will County
Bd., PCB 99-136, 99-139, 99-140, 99-141 (consol.), slip op. at 3 (Apr. 15, 1999).
Petitioners have the burden of proof. 415 ILCS 5/40.1(b) (2002);
see also
35 Ill. Adm.
Code 107.506. The record before the City will be the exclusive basis for all hearings except
concerning issues of fundamental fairness or jurisdiction. 415 ILCS 5/40.1(b) (2002). Hearings
will be scheduled and completed in a timely manner, consistent with the decision deadline (see
415 ILCS 5/40.1(a), (b) (2002), which only Town & Country may extend by waiver (35 Ill.
Adm. Code 107.504; see also 35 Ill. Adm. Code 101.308). If the Board fails to take final action
by the decision deadline, Town & Country “may deem the site location approved.” 415 ILCS
5/40.1(a) (2002). Currently, the decision deadline is January 16, 2004 for Mr. Sandberg’s
petition (the 120th day after September 18, 2003), and January 20, 2004, for Waste Management
and the County’s petitions (the 120th day after September 22, 2003).
See
35 Ill. Adm. Code
107.504. The Board will treat the consolidated cases as due for decision at the earlier date:
January 16, 2004. The Board meeting immediately before January 16, 2003 is currently
scheduled for January 8, 2004.
THE CITY’S RECORD
The City must file the entire record of its proceedings within 21 days after the date of this
order. The record must comply with the content and certification requirements of 35 Ill. Adm.
Code 107.304, 107.308. Because Mr. Sandberg is an individual citizen, he is “exempt from
paying the costs of preparing and certifying the record.” 415 ILCS 5/39.2(n) (2002); 35 Ill.
Adm. Code 107.306. However, the County and Waste Management must pay to the City the
cost of preparing and certifying the record. 415 ILCS 5/39.2(n) (2002); 35 Ill. Adm. Code
107.306.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 2, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
