MOTION FOR PARTIAL SUMMARY JUDGMENT
PROOF OF SERVICE
transfer station (for non-hazardous solid waste only) on
as 2184 North 300th Street, Mason, IL 62443
Certificate Of Publication
Effingham Daily News

- APPLICATION FOR
Effingham County Board
1. APRIL 19, 2002
  1. ROBERT L BEKRMAN
2. SIG~D:___________________

RECE~VW

CLERK’S OFF~F.

AUG

2 200k

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

STATE OF $LLl~S

LAVONNESUTTER SANITATION,RAKER,

iNC. and

))

pollution

Cofltr0~~soacd

)

Petitioners,

)

Case No. PCB 04-187

)

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal

Land)

PROTECTION AGENCY,

)

Respondent.

)

MOTION FOR PARTIAL SUMMARY JUDGMENT

NOW COMES Petitioners Sutter Sanitation, Inc. and Lavoime Raker (collectively “Sutter”)

and pursuant to Illinois Pollution Control Board (“PCB”) Rule 101.516 and a Hearing Officer

schedule, as amended, hereby moves the PCB to grant partial summary judgment in favor of Sutter

and against Respondent, Illinois Environmental Protection Agency (“Illinois EPA”) in the above

captioned matter. In support ofthis Motion, Sutter states:

Introduction

This permit appeal requires the PCB to review the Illinois EPA’ s interpretation ofthe term

“establish” with respect to the setback requirements of Section 22.14 ofthe Illinois Environmental

Protection Act (“Act”). Section 22.14 prohibits the establishment of a solid waste transfer station

if it is located within 1000 feet ofa dwelling (415 ILCS 5/22.14(a)). However, Section 22.14 also

provides for an exception to this setback requirement if the solid waste transfer station was

“established” prior to the establishment ofthe dwelling (415 ILCS 5/22.1 4(b)(iii)). It is the Illinois

EPA’s interpretation of “establishment” that is at issue in this case. The Act does not define

Printed on RecycledPaper

S0446588. 1 7/20/04

CJN CJN

“establishment,” nor have any prior PCB opinions.

As discussed more fully below, this case is factually unique. Suffer filed for and obtained

local siting approval from Effingham County to develop and operate a solid waste transfer station.

Effingham County’s decision was affirmed by the PCB as well as the Illinois Appellate Court.

However, after Effingham County approved siting but before Suffersubmitted its permit application

to the Illinois EPA, Stock & Company, a facilityobjector and property owner, placed a mobile home

on its property within the 1000 foot setback requirement contained in Section 22.14 of the Act.

Upon review of Suffer’s permit application, and in light ofthe post siting approval placement of a

mobile home on property within the 1000 setback, the Illinois EPA deniedthe permit application on

thegrounds that granting it would violate Section 22.14 ofthe Act.

The legal issue to be resolved by the PCB is one of statutory construction. What is the

meaning of“establishment” in Section 22.14 ofthe Act? Ifthe Sufferfacility was established prior

to the placement ofthe mobile home on the neighboring property, the Illinois EPA’s permit denial

on this point is incorrect and must be reversed. It is Sutter’ s position that its facility became

established on or about either oftwo dates: when Suffer effectuated public and private notice of its

intent to seek local siting approval ofits facility; or whenthe Effingham County Board approved the

Sutter siting application. In either case, both dates precede the placement of the mobile home on

the nearby property. This positionis clearly supported by the plain and ordinary meaning ofthe term

“establishment~”and is clearly a reasonable interpretation ofSection 22.14 given the purposes ofthat

Section and the Act as a whole. Conversely, if the Suffer facility was not established until it

submitted a permit application to the Illinois EPA, the Illinois EPA’s permit denial on this point is

correct. However, Suffer believes that an interpretation tying “establishment” to permit submittal

Printed on Recycled Paper

S0446588.1 7/20/04

Cfl~CTh~

is at odds with the use ofthe term and will create unjust and unreasonable consequences. As such,

Suffer is asking the PCB to reverse the Illinois EPA’s denial on this point.

II.

Standard of Review

Granting a motion for summary judgment is appropriate where there is no genuine issue of

material fact, and that the moving party is entitled to judgment as a matter oflaw.

Ill.Adm. Code

101.516(b); E.g. United Disposal ofBradley. Inc. et al. v. Illinois EPA, PCB No.

03-235

(June 17,

2004). In reviewing a motion for summary judgment, the PCB reviews the legal precedent cited by

the movants but also the record at issue including pleadings, depositions, admissions, and affidavits.

Id. Also, motions for partial summary judgment, like this one, are appropriate.

Ill.Adm. Code

101.516(a). Finally, the PCB’s review ofthis matter is governed by the burden ofproofapplicable

to permit appeals. United Disposal ofBradley, Inc. et al., PCB No.

03-235

at 13 (June 17, 2004).

In this case, the burden ofproofrequires Suffer to prove that granting its requested permit will not

violate Section 22.14 ofthe Act. In turn, this requires that the PCB find that the Illinois EPA’s

determination that a facility becomes “established”for purposes ofSection 22.14 upon submittal of

a permit application to the Illinois EPA is an incorrect interpretation ofSection 22.14. Based upon

the facts and arguments below, this is a demonstrationthat Suffer can make.

III.

Statement ofFacts

The following facts are takenfrom the administrative record filed by the Illinois EPA in this

case as well as portions ofthe records in prior PCB proceedings involving the Suffer facility.

The Suffer facility is located on approximately 3.2 acres approximately seven miles south of

Altamont, Illinois along County Highway 25 (R. at 166). The Suffer facility is the site of a former

commercial grain elevator (Id.). Numerous structures associated with the grain elevator are present

Printed on RecycledPaper

S0446588.1 7/20/04 CJN CJN

on-site including 3 large buildings; 6 grain elevators (bins); and sheds (R. at 224).

The property across the street from the Suffer facility is owned by “Stock & Company,” a

holding company for Stock family interests (“Stock”)(R. at 246). The area is predominately level

agricultural cropland (See attached Exhibit 1, testimony ofreal estate appraiser James Bitzer, C 181

from PCB No. 03-43 and 03-52 (consolidated)(transcript of proceedings before the Effingham

County Board)).

Prior to 1970, a house existed on the Stock property across the highway from the Suffer

facility. This house was demolished in 1970 (R. at 87).

Beginning sometime between March and April, 2002, but in any case before April 19, 2002,

the Suffer facility was used by Suffer to conduct recycling operations, namely as a citizen drop off

point for recyclable materials (R. at 284; see, attached Exhibit 2, testimony ofTracey Suffer, C190

from PCB No. 03-43 and 03-52 (consolidated)(transcript of proceedings before the Effingham

County Board)); see attached Exhibit 3, testimony ofTracey Suffer, Hrng. Tr. at 68, PCB No. 03-43

and 03-52 (consolidated)(transcript ofproceedings before the PCB)).

On March 20, 2002, pursuant to Section 39.2 of the Act, Suffer caused to be mailed to

numerous property owners and public officials a “Notice ofIntentto Request Local Siting Approval

from the Effingham County Board for New Waste Transfer Station.” This Notice identified the

Suffer facility, its specific location and prospective application filing date. Such a Notice was sent

and received by Stock & Company (See attached Exhibit 4, C96-C99 from PCB No. 03-43 and 03-

52 (consolidated)).

On March21 and 28, and April 4, 2002, Suffercaused to be published in the Effingham Daily

News a “Notice ofIntent to RequestLocal Siting Approval From Effingham County Board For New

Printed on RecycledPaper

S0446588.1 7/20/04 CJNCJN

Waste Transfer Station” (See affached Exhibit

C83 from PCB no. 03-43 and 03-52

(consolidated)). This Notice identified Suffer’s facility, its location and prospective application

filing date with Effingham County.

On April 19, 2002, Suffer filed its formal application with Effingham County for siting

approval ofits solid waste transfer station (See attached Exhibit 6, C2-C3 from PCB no. 03-43 and

03-52 (consolidated)).

On August 14, 2002, pursuant to notice, the Effingham County Board conducted a public

hearing on the Suffer facility. Stock & Company participated through its registered agent, Duane

Stock. (See attached Exhibit 7, C170 from PCB No. 03-43 and 03-52 (consolidated)(transcript of

proceedings before the Effingham County Board))

On September 16, 2002, the Effingham County Board approved local siting authority for the

Suffer facility (R. at

152-156).

At some point afterSeptember 16, 2002, a mobile home was placed on the Stock & Company

property across the county highway but within 1000 feet of the Suffer facility (R. at 273). This

mobile home may have been placed on the property in October, 2002 (R. at 93).

In October, 2002, Stock & Company and a landfill located in Effingham County filed

petitions with the PCB to review Effingham County’s September 16, 2002 siting approval (Landfill

33. Ltd. and Stock & Company, LLC, v. Effingham County Board and Suffer Sanitation Services,

PCB No. 03-43 and 03-52 (consolidated)). On February 20, 2003, the PCB affirmed Effingham

County’s decision (See attached Exhibit 8). Stock & Company appealed the decision ofthe PCB

to the Appellate Court (Stock & Company, LLC v. Illinois Pollution Control Board, et al., Fifth

District Appellate Court No.

5-03-0099).

On May 7, 2004, the Appellate Court affirmed the PCB

Printed on Recycled Paper

S0446588.1 7/20/04 CJN CJN

in a Rule 23 Order (See attached Exhibit 9).

Since the mobile home was placed on the Stock propertysometimeafter EffinghaniCounty’ s

siting approval, it has not been continuously occupied (R. at 237, 238, 239, 240, 241, and 242).

On September 29, 2003, Suffer submitted its formal “Development Permit Application” for

the solid waste transfer station to the Illinois EPA (R. at 142 et seq.).

On October 27, 2003, the Illinois Department of Agriculture notified the Illinois EPA that

the Suffer facilityat the former grain facilitywould be “consistent with the IEPA’s Agricultural Land

Preservation Policy and in compliance with the state’s Farmland Preservation Act” (R. at 12).

On December 8, 2003, the Illinois EPA received notification from the Illinois Department

ofNatural Resources via a “Consultation Agency Action Report” that the Suffer facilitywould not

impact any “Natural Areas” or endangered species (R. at 13).

On March 30, 2004, the Suffer permit application was denied. The Illinois EPA identified

three denial points. It is the third denial point that is at issue in this Motion. That denial point states

in its entirety:

“Issuance ofa permit for this facility would violate Section 22.14 of

the Act because the proposed garbage transfer station would be

located closer than 1000 feet from a dwelling that was so located

before the application was submitted to the Illinois EPA.”

(R.1-2)

On April 26, 2004, Suffer filed its appeal ofthe Illinois EPA’s permit application denial.

IV.

Legal Argument

Statutory Framework

The issue before the PCB by this Motion is essentially an exercise in statutory construction.

Printed on Recycled Paper

S0446588.1 7/20/O4CJNCJN

The crux of this exercise, as has been noted, is for the PCB to determine the meaning of the term

“establishment” as used in Section 22.14 ofthe Act. The relevant portions ofthat Section are as

follows:

“(a) No person may establish any pollution control facility for use as

a garbage transfer station, which is located less than 1000 feet from

the nearest property zoned for primarily residential uses or within

1000 feet of any dwelling,...

(b) This Section does not prohibit (i) any such facility which is in

existence on January 1, 1988, nor (ii) any facility in existence on

January 1 1988, as expanded before January 1,1990, to include

processing and transferring ofmunicipal wastes for both recycling

and disposal purposes, nor (iii) any such facility which becomes

nonconforming due to a change in zoning or the establishment of a

dwelling which occurs afterthe establishment ofthe facility,nor (iv)

any facility established by a municipality with a population in excess

of 1,000,000, nor (v) any transfer facility operating on January 1,

1998.

...“

(415

ILCS

5/22.14).

Suffer believes that the exception identified in subsection (b)(iii) is applicable in this case.

Suffer’s position is that its facility having been established, at a minimum, on September 16, 2002,

upon Effingham County Board approval, became “non-conforming” only after the post-

establishment placement ofthe mobile home within the setbackrequirements. The cardinal rule of

statutory construction is that the court, or other tribunal, must ascertain and give effect to the intent

ofthe legislature. Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.2d 295, 301, 273 Ill.Dec. 390

(2003). Unfortunately, the legislature did not define the term “establishment” in the Act. In such

a situation, it is the duty ofthe reviewing tribunal to give the term its “plain and ordinary” meaning.

~4.

Ifmore than one reasonable interpretation ofthe term is-possible, the term is deemed ambiguous

Printed on Recycled Paper

S0446588.1 7/20/O4CJNCJ’N

and it then becomes appropriate to look at factors beyond the statute’s plain and ordinary meaning.

Krohe v. City ofBloomington, 204 Ill.2d 392,

395,

273 Ill.Dec. 779 (2003). Sufferbelieves that the

term “establishment” as usedin its plain and ordinary meaning supports its positionthat the Illinois

EPA’s permit denial was inappropriate. However, even ifthe PCB finds that the termis ambiguous,

a review ofother factors will also support Suffer’s position.

Plain and Ordinary Meaning

As noted above, the term “establishment” is not defined in the Act. As such, it should be

given its “plain and ordinary meaning.” It should also be recognized that such meanings should be

given their full, and not a narrow,meaning. ChemedCorp. Inc. v. the State ofIllinois, 186 Ill.App.3d

402, 134 Ill.Dec. 313 (4th Dist. 1989)(”Moreover, the undefined term must be given its full

meaning, not the narrowest possible meaning.” citingLake County Board ofReview v. Property Tax

Appeal Board, 119 Ill.2d 419, 519 N.E. 2d

459

(1988)). In determining what the “plain and

ordinary” meaning of a term is it is appropriate to consider current dictionary meanings. See

Advinculav. United Blood Services, 176 I1l.2d 1,233 Ill.Dec. 1 (1996); Vincencio 204 Ill.2d at 301.

It is also appropriate to consider common law interpretations. Advincula, 176 Ill.2d at 17. Upon

review ofboth sour~esofmeaning, it is clear that the term“establishment” supportsaninterpretation

that the Suffer facility was established on either: 1) the date of public and private notice of the

proposed siting location; or 2) upon County Board approval ofthe facility location. Both occurred

prior to the placement of a mobile home on nearby property.

The Merriam-Webster’s dictionary provides a number ofdefinitionsfortheword “establish”

These include:

1: to institute (as a law) permanently by enactment or agreement;

Printed on RecycledPaper

S0446588.1 7/20/04 CJN CJN

. .

.b: to introduce and cause to grow and multiply;

a : to put on a firm basis: SET UP b : to put into a favorable position c : to gain full

recognition or acceptance of

• (Merriam-Webster OnLine Dictionary: www.m-w.corn: see affached Exhibit 10; (2004)).

A number ofthese definitions would be appropriate to set the time ofthe “establishment” of

the Suffer facility at the time of siting notice or County Board approval. Definition number one

references an actofa body by enactment or agreement. Clearly, the actions ofthe Effingham County

Board in conducting a public hearing, debating, and considering the Sufferfacilityand thenformally

approving it by unanimous vote constitute an enactment under this definition. Similarly, the action

ofthe Effingham County Board in approving the facility certainly meets the definition ofpuffing it

“on a firm basis,” or in a “favorable position.” Also, the Effingham County Board’s approval

certainly is a measure of “full recognition or acceptance” ofthe facility at the identified location.

Even earlier than the County Board action, however, was Suffer’s provision of public and private

notice of the facility and its open and notorious use of the facility as a recycling center. These

actions also provide a measure offull recognition andacceptance ofthe facility. Clearly, under this

dictionary definition, the Sutter facility was established at the time of public notice in March and

April, 2002 or alternatively by Effingham County Board approval in September, 2002, but in any

event prior to the placement ofa mobile home on the property acrossthe street sometime in October,

2001 after Effingham County approval. Under this construction, the Illinois EPA’s interpretation

is erroneous.

In addition to using a dictionary definition to determine the plain and ordinary meaning of

the term “establishment,” reference to court decisions interpretingthe term are also helpful. At least

Printed on Recycled Paper

S0446588.1 7/20/04 CJN cJN

one Illinois court has opined on the issue ofthe meaning of “establishment” in the context ofa land

use controversy. While it is an older case, it is a pronouncement of the highest court in Illinois and

has not been reversed or otherwise questioned. Inaddition, at leastone intermediate court has also

defined the term established, albeit not in a land use sense, but in the context of when a municipal

librarybecame established. This case aswell is still good law in Illinois. Both cases support Suffer’s

position in this case.

In The Village ofVilla Parkv. The Wanderer’s Rest Cemetery, 316 111.226, 1925 Ill. LEXIS

875

(1925),

the Illinois Supreme Court was confronted with a similiar question as faced by the

Illinois EPA in this matter. Namely, when was a particular facility (a cemetery) established? In

September, 1922, an individual entered into a contract for the purchase ofthe property in question.

Also in September, 1922, that individual met with a group of other persons on the property and

“dedicated” it foruse as a cemetery. Also during that month, the individual retained a firm to make

a topographic map of the property. In December, 1922, the nearby village ofVilla Park adopted an

ordinance seffing up setback requirements applicable to cemeteries. In January, 1923, a sign was

placed on the property indicating its future use as a cemetery. InFebruary, a corporation was formed

to carry out the business ofoperating the cemetery. In May, 1923, the original real estate contract

was consummated and the deed was actually recorded. InAugust, contracts were entered into with

respect to making improvements to the property. In September, the plat ofthe cemeterywas actually

recorded in the Recorder’s office. Also in September, 1923, the village ofVilla Park affempted to

enforce its setback requirements. Under these facts, the Supreme Court refused to enforce the

setback requirements. The Court determined that the cemetery had been established prior to the

Villa Park ordinance and that the village ordinance had no effect. This conclusionwas reached even

Printed on Recycled Paper

S0446588.1 7/20/04 CJN CJN

though no actual burials had taken place. In fact, the Court identified a number of facts which it

considered important: the merepurchase ofthe land for aparticular purpose; the “dedication” ofthe

property foruse as a cemetery; the placement ofa sign on the property; and the expenditure offunds

in furtherance of the enterprise. In light ofthe Villa Park case, the Supreme Court, has clearly

defined “establish” to include a variety of actions equating with public recognition ofa particular

land use. Accordingly, the PCB should employ the same analysis as adoptedby the Supreme Court.

Indeed, the same set ofgeneral facts are present with respectto the Suffer fadiity~Sufferhad leased

the property for its facility, held an option to purchase (and has since purchased it) well before the

placement ofa mobile home across the highway. The Suffer facilitywas clearly “dedicated” as such

by the public and private notice of the siting application as well as the use of the property as a

recycling center a full seven months before the mobile home was placed-oir±he~propertyacross-the

highway. Such “dedication” was also made crystal clear by the proceedings of the Effingham

County Board in holding a public hearing and approving the facility locationprior to the placement

of the mobile home. In addition, Suffer has expended considerable funds in furtherance of the

development of the property including its purchase but also engineering and afforney fees prior to

the placement ofthe mobile home. These actions, as explained by the Supreme Court in the Villa

Parkcase, clearly fallwithin a plain and ordinary definition of“establish.” As such, the PCB should

determine that the Sutter facility was established at the time of public and private notice of the

facilitywas given or, at a minimum, whenthe facility was approvedby the Effingham County Board.

Both of these events preceded the placement ofthe mobile home on the nearby property.

Another more recent case from the Illinois Appellate Court also providesaplainand ordinary

definition of“establish” that supports Suffers position in this case. In Moseid v. McDonough, 103

Printed on Recycled Paper

S0446585.1 7/20/04 CJN CJN

Ill.App.2d 23, 1968 Ill.App.LEXIS 1393 (1st Dist. 1968), the Court was called upon to determine

whena county law library was “established.” (The issue was important with respect to the collection

of certain taxes.) The plaintiffs argued that the library was only established when it became a

“functioning institution.” The Court, however, chose to define “established” otherwise:

“This interpretation functioning institution requires too narro~and

unnatural a meaning of the term ‘establish.’ While there are

numerous dictionary definitions of the word, many ofthem would

substantiate the ‘establishment’ ofthe library on September 30, 1963

with the enactment ofthe County ordinance purporting to do so. The

execution or implementation of the ordinance occurred somewhat

later, but, in our opinion, the librarywas established by the act ofthe

County Board,

...“

Moseid, 103 Ill.App.2d at 31.

Here too a court has given us the plain and ordinary meaning of the word establish. That meaning

specifically includes the action ofa county board approving a matter. See also, Martinson v. Kreski,

17 Mich.App. 679, 170 N.W. 2d 257 (Mich. App. 1969). As applied to the Suffermaffer, the facts

and holding of the Moseid case clearly indicate that the Suffer facility was established, at a

minimum, on the date the Effingham County Board approved siting: September 16, 2002. This was

well before the mobile home was placed on the property across the highway.

In light of the Villa Park and Moseid cases, Illinois courts have determined the plain and

ordinary meaning ofthe term establish. That ordinary and plain meaning is entirely consistent with

and supportsa finding that the Sufferfacility was established at the time the public and private notice

of the facility was made, or at a minimum, when the County Board approved the location of the

facility. For these reasons, the Illinois EPA’s determination that the Suffer facility was not

established until Suffer submitted a permit application is clearly erroneous and cannot serve as the

Printed on Recycled Paper

S0446588.1 7/20/04 CJN CJN

basis of a permit denial. Accordingly, granting Suffer’s permit application will not result in the

violation ofthe Act.

•

Ambiguity

If, despite the analysis above, the PCB believes that the term “establishment” can be

reasonably interpreted in two different ways, it is therefore considered ambiguous. E.g. People v.

Holloway, 177 Ill.2d 1,224 Ill.Dec. 498 (1997)(”Whena statute can be reasonablyinterpretedin two

different ways, it is ambiguous.”). In such a case where a court is confronted with an ambiguous

term it is appropriate to look beyond the statutes plain meaning. j~. In fact, where a statute is

determined to be ambiguous, it is a tribunal’s duty to give the ambiguous term a construction that

is reasonable and that will not produce an absurd, unjust or unreasonable resultwhich the legislature

could not have intended. County Collector ofDuPage County v. ATICarriage House. Inc., 187 Ill.2d

326, 240 Ill.Dec. 683 (l999)(”When a statute is ambiguous, it will be given a construction that is

reasonable and that will not produce absurd, unjust or unreasonable results, which the legislature

could not have intended.”). Aiding in this construction is consideration ofthe reason and necessity

ofthe law and the purposes to be achieved by it. Williams v. Staples, 208 Ill.2d 480, 281 Ill.Dec.

524 (2004).

Reasonableness

As Sufferproposes, defining “establishment” ofa facility asused in Section 22.14 ofthe Act

at the time of public and private notice ofthe siting application or, as an alternative, at the time of

final action by the local governing body is entirely reasonable.

First, recognizing the “establishment” of a facility at the time ofpublic and private notice of

siting orupon local government approval is reasonable -because, asnoted above, it is consistent with

Printed on RecycledPaper

S0446588.1 7/20/04 CJN Cml

the plain and ordinary use of the term as defined by reference materials (the dictionary) and the

courts.

Second, recognizing the “establishment” ofa facility at the time ofpublic-and private notice

ofsiting or upon local government approval is reasonable because it is consistent with the language

used in Section 22.14. It is important to note that in Section 22.14(b), subsections (i) and (ii), the

statute references “existing” facilities. 415 ILCS 5/22.14(b). Subsection (v) of Section 22.14

discusses facilities in “operation.” 415 ILCS

5/22.14(b)(v).

Clearly then, subsection (iii)’s use of

the term “establishment” must be different than an “existing” or an “operating” facility. Raintree

Homes, Inc. v. The Village ofLong Grove, 209 Ill.2d 248, 282 Ill.Dec. 815 (2004)(”We the Illinois

Supreme Court must construe the statute so that “each word, clause or sentence is given reasonable

meaning and not deemed superfluous or void.”). It can’t mean any type ofpost-existing or post-

operating facilitybecause that would be redundant. It must therefore apply to a facility prior to its

“existence” or“operation.” It is therefore entirely reasonable to consider that “establishment” occurs

at the time ofpublic and private notice ofsiting or upon local government approval. Both ofthese

events are much more significant than the date identified by the Illinois EPA, the mere filing ofa

permit application. Unlike the filing ofa permit application, much broader notice requirements are

necessary for the public and private notice associated with siting. Furthermore, and unlike the

submittal of a permit application, tying “establishment” to local government approval recognizes a

firm, and fully. reviewable, decision by a third party which has determined the rights ofthe parties.

No such significance is attached to the mere submittal of a permit application to the Illinois EPA.

Third, recognizing the “establishment” of a facility at the time ofpublic and private notice

ofsiting or upon local government approval is reasonable because it is consistent with the purposes

Printed on RecycledPaper

S0446588.1 7/20/04 Cmi CJN

of Section 22.14. In relevant part, the purpose of Section 22.14 is to protect dwellings (and more

appropriately the occupants of those dwellings) from a facility that chooses to locate nearby.

•

Defining the “establishment” ofa facility at the time of public and private notice ofsiting or upon

local government approval achieves the protection ofthose dwellings. Underthis construction, the

only dwellings not protected are those that are not in existence on the date of public and private

notice of siting or local government approval but are so placed after their owners have necessarily

obtained knowledge (through public and private notice) ofthe facility. Under such circumstances,

it is the dwelling owner who has made a choice to locate his or her dwelling nearby the facility.

Clearly, the purposes of Section 22.14 are not served by this scenario in which it is the dwelling

owner who has chosen, and in effect assumed the risk, to locate the dwelling nearby to a facility.

The facts ofthis case are illustrative. The nearby property owner Stock had full knowledge ofthe

Suffer facility. Stock received notice ofthe siting proposal, received notice ofthe public hearing,

participated at the public hearing, and yet, after the County Board approved the facility, placed a

mobile home on the property. It is Stock that has chosen to place a mobile home on property that

he knows to be nearby the facility. It cannot be reasonably considered that the purpose of Section

22.14 was to protect and sanction such actions.

Another important, but broader, purpose ofthe Act must also be considered. Thatpurpose

•

is embodied in Section 39.2 ofthe Act wherein local governments were given the right and duty to

review, consider and conclusively determine the appropriateness of facility location. In this case

those rights and duties were given to the Effingham County Board. Those rights and duties were

appropriately carried out by the Effingham County Board via a public hearing and public comment

period as required by the Act. The County Board specifically considered such factors as site

Printed on Recycled Paper

S0446588.1 7/20/04 Cmi Cmi

suitability, the County’s need forthe facility, facilitydesign, facilityimpact on neighboringproperty,

and whether the facility would be protective of the public. See 415 ILCS 5/39.2(a). After

considering these factors, the County Board unanimously approved the facility. The actions ofthe

County Board were questioned by Stock, but nevertheless approved on appeal by the PCB and the

Appellate Court. To allow the Illinois EPA to consider, in effect, compliance with Section 22.14

based upon the date of permit submittal reasserts the Illinois EPA back into the siting process and

trumps the fully approved decision ofthe local government body charged with determining site

suitability. Both results are in clear derogation of Section 39.2 ofthe Act.

Absurd, Unjust, Unreasonable Results

In contrast to the reasonableness of defining “establishment” to mean either the public and

private notice of the siting or local government approval, the Illinois EPA’s position that a facility

is not established until a permit application is submitted is not reasonahie, and will indeed result in

absurd, unjust and unreasonable results.

First, tying the determination of “establishment” to the date a facility submits a permit

application to the Illinois EPA would allow facility opponents to simply move a mobile, and by

implication, temporary, home onto nearby property at any time prior to permit submiffa! to

effectively defeat any facility. This is unreasonable and unjust,,ifnot absurd, in that Section 22.14

can not be interpreted to sanction such actions. Such an interpretation would allow facility

opponents to by-pass any participation at all in the siting processand simply show up with a mobile

home prior to permit application submittal. Itwould, in effect, nul1if~’the entire public siting process

and the authority the legislature has given local governments to have a say, and indeed the final

decision, on site suitability.

Printed on Recycled Paper

S0446588.l 7/20/04 Cmi Cmi

Second, tying the determination of “establishment” to the date a facility submits a permit

application to the Illinois EPA is without any practical significance and therefore unreasonable. No

public notice ofthe permit submittal is required (although certain government officials are required

to be notified). No action by a local government is sought or given. Not even the Illinois EPA is

compelled to do anything at the time of submittal (although it does start the mandatory review

period). It is a date that has no significance to the public, or any local government or even the

Illinois EPA. Stated more specifically in reference to defining “establishment,” there is nothing

about submitting a permit application that has any practical bearing on resolving or determining

when a facility is established. The public is already aware ofthe facility through the notice process

at the time the siting application is filed. Neighboring landowners are already aware ofthe facility

through the private notice process at the time the siting application is filed. Public hearings on the

facility are made know through public media. A public hearing has already been conducted by the

local government. Pubic comments have been solicited and received. The local government has

reviewed, considered and debated the facility and approved it. Finally, the applicant itself has

already expended significant resources on the facility. An interpretation ofSection 22.14 ofthe Act

that the submittal ofpermit application somehowestablishes a facilitywhere it was not established

before by virtue ofthe actions noted above is simply unreasonable, unjust and absurd.

Third, tying the “establishment” ofa facility to the submittal ofa permit application would

only serve to create continual “races” to the Illinois EPA in order to get a facility established.

Assuming that a mobile home was not placed upon nearby property at any time up until local

government approval, upon that approval it would be a race to see who could either: 1) place a

mobile home on nearby property to defeat the facility; or 2) get a permit application on file’ to

Printed on Recycled Paper

S0446588.1 7/20/04 Cmi Cmi

establish the facility. Such actions would inevitably create factual disputes that the Illinois EPA is

not in a position to conclusively decide, but which could only be resolved by an inevitable appeal

to the PCB. Also, it should be recognized that in such a scenario, the facility is always at the

disadvantage and subjectto the whim ofthe nearby property owner. It is clear that a facility can not

go forward without local siting approval, and must demonstrate that local siting approval before

submitting a complete permit application. Accordingly, even under the best of circumstances a

facilitywill never be ableto submit a completepermit-application:until after1-ocalsitingis-approved.

In contrastto this, the nearby property owner can sit back and allow the facility to expend funds and

time on a siting application and public hearing process and then move a mobile home onto the

property at any time it is convenient for the owner. Yet another scenario would contemplate the

nearby owner (perhaps all owners within the 1000 foot setback?) seeking compensation in exchange

for not placing a mobile home on his property. Clearly, these possibilities were not reasonably

intended or contemplated by the legislature in enacting Section 22.14. The Illinois EPA’s

interpretation ofSection 22.14 that would allow such possibilities is therefore unreasonable.

Fourth, and as touched upon above, tying the “establishment” of a facility to the submittal

ofa permit application would defeat and void the role of local governments in the siting process

established bythe legislature. Allowing facilityopponents to defeat a facilityby bringingin amobile

home before oraftera local government hasheldhearing~orpubIicaliy-voted-onthe -facility but prior

to permit submittal would make all those actions of the local government moot. This case is

illustrative ofsuch a situation. By interpreting Section 22.1.4 suchthat the Sufferfacility can not now

go forward, the Illinois EPA has rendered meaningless the time, effort and resources expended by

the Effingham County Board. By its interpretation, the Illinois EPA has effectively written out

Effingham County from exercising its statutory rightto determinethe suitability-ofthe Suffer facility.

Printed on Recycled Paper

S0446588.1 7/20/04 Cmi Cmi

Fifth, tying the “establishment” of a facility to permit application submiffal (or any date

subsequent to public and private notice of siting) would allow facility opponents to place a mobile

home on nearby property and defeat a facility regardless of local government approval. To defeat

this reality, the only way a facility could defeat this situation would be to buy-up enough property

around the proposed facilityto accommodate the 1000 foot setback requirement. Such an additional

financialburden would be possible only forthe largestwaste companies. As a consequence, smaller

waste companies (such as Suffer) could never grow and expand. This failure would in turn have

negative effects on local (and regional) competition.

Sixth,- tying the “establishment” of a facilityto permit submittal is unjust because it fails to

consider, and allows the loss of, the investment made by applicants in attempting to obtain local

siting approval. Such investment includes: the cost ofthe property; engineering fees; legal fees; and

often a local government application fee which can in and ofitself be in the hundreds ofthousands

of dollars. If, after this investment has been made, and local siting approved, local siting can be

defeated by the placement of a mobile home on nearby property all ofthis investment will be lost.

It is simply unjust to allow this occur. The Suffer matter is a case in point. Here, Sutter has

expended significant sums in achieving the public approval of the location of the facility (all

undertaken with the full knowledge and awareness ofStock) including but not limited to PCB and

Appellate Court review and then Stock places a mobile home on the nearby property. This is clearly

unjust to Suffer. As noted above, this situation is also unjust to the local government that has

expended its time and resources in holding public hearings and openly considering, debating and

approving the facility as well as the PCB and Appellate Court that has spent theirresources (all at

the behest of Stock) on reviewing the appropriateness ofEffingham County’s approval.

All ofthese arguments, whether relying upon the plain and ordinary meaning ofthe term

Printed on RecycledPaper

S0446588.l 7/20/04 Cmi Cmi

“establishment” or considering the purposes and consequences ofthe clearly demonstrate that the

Illinois EPA’s determination that a facilitybecomes established for purposes ofSection 22.14 upon

permit application can not be supported. Conversely, those arguments clearly demonstrate that a

facility becomesestablished at the time public and private notice ofthe filing of a siting application

is made or upon approval ofsiting by the appropriate local government. Because the Suffer facility

was established at both ofthese times, it has met its burden ofproofby demonstrating that granting

its permit application will not violate Section 22.14 ofthe Act.

Conclusion

WHEREFORE Petitioners SufferSanitation and LaVonneHaker respectfully request that this

Board grant this Motion for Partial Summary Judgment and find that the Illinois Environmental

Protection Agency’s denial ofSuffer’spermit application onthe basis ofa violation of Section22.14

ofthe Act be reversed.

SUTTER SANITATION, INC., and

LAVONNE HAKER, Petitioners

By:_______

One Of Their Attorneys

Sorling, Northrup, Hanna

Cullen & Cochran, Ltd.

Charles J. Northrup, of Counsel

Suite 800 Illinois Building

P.O. Box 5131

Springfield, IL 62705

Telephone: 217.544.1144

Printed on Recycled Paper

S0446588.1 7/20/04 Cmi Cmi

PROOF OF SERVICE

The undersigned hereby certifies that an original and ten copies ofthe foregoing document

was served by placing same in a sealed envelope addressed:

Dorothy M Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Il. 60601

and copies to:

John J. Kim, Attorney

Renee Cipriano, Director

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 N. Grand Avenue, East

Springfield, Il. 62794-9276

Ms. Carol Sudman

Hearing Office

Illinois Pollution Control Board

1021 North Grand Ave. East

Post Office Box 19276

Springfield, IL 62794-9274

and by depositing same in the United States mail in Springfield, Illinois, on the

day of July,

2004, with postage fully prepaid.

~-~—-----/

Printed on Recycled Paper

S0446588.1 7/20/04 Cmi Cmi

-1-

L.________

1 $anitation in this case.

2

A. Yes, sir.

3

Q. Okay. What 

what is the character of the

4 surrounding land?

5

A. Predominantly level agricultural cropland,

6  and the far distance from the existing proposed’-- to

7  the proposed site.

8

Q. Okay. 

And

excuse me 

and you’re also

9  familiar with the prior use of this particular piece of

10- property, right?

11

A. It appears to be a grain elevator for the

12 prior use, yes.

13

Q. Commercial agricultural use previously?

14

•

A. Yes, sir.

15

Q.

Are

you familiar 

or aware of any

16 significant expansion or urbanization going on in that

17 area now?

18

A. I’m not aware of any, nor were there any

19 signs on my 

on my last inspection.

20

Q.

And

with respect to the other transfer

21 facilities, you’ve mentioned specifically the Shelby

22 County one that you were involved in and have seen, are

23 you aware of any adverse impact on the operation of such

24 facilities on the surrounding property?

Hanagan Reporting Service

Mt. Vernon, Illinois 62864

(618) 244-0216

Exhibit

68

1

thing.

2

MR. GOBCZYNSKI: Sure.

3

EXAMINATION

4  BY MR. ROLF:

5

Q. There was no fine or any other citation with

6  regard to that, was there?

7

A. No. They told me when they were there that

8  if there would be, that it would be within 90 days if I

9  did not meet compliance.

10

Okay. 

Are

you planning on running another

11.

operation out there other than the transfer facility?

12

A. We currently already do. We handle the

13 the recycling drop-off that was once implemented in 

14 Altamont. The equity done it. The equity can no longer

15 house the recycling, so in doing this we do have the

16 means and the 

- *

the buildings to be able to handle the

17 recycling as a drop-off, so we are ‘currently operating

18 that right now, wish to continue operating that along

19 with our transfer site.

20

Is that 

would that be a stand-alone

21 process, the recycling, if you weren’t doing the

22 transfer station in the near future?

23

A. Economically impossible to continue

24 recycling without the transfer facility.

• -

C~9o

Hanagan Reporting Service

Mt. Vernon, Illinois 62864

(618) 244-0216

Exhibit 3

1

A.

Witness nodded affirmatively.

2

Q.  Okay. When did you open that recycling

3

facility?

4

A.

We opened it 

——

let’s see 

——

March of 2002.

5

Q.  So sometime between March of 2002 and April

6

of 2002, the committee came and visited you?

7

A.  They did.

8

Q.  Who all was on that committee?

9

A.  Who was on that committee? Or who all was

10

there that day?

11

Q.  Who all was there that day?

12

A.  Carolyn Willenborg, Charlie Velker, Karen

13

Lucthfeld, and I believe his name is Bob Reardon.

14

Q.  Okay. And at the time, you were in the

15

process of developing your siting application, correct?

16

A.  Yes, I would have been.

17

Q.  And so you knew at that time that you

18

intended to use that building as a transfer station,

19

correct?

20

A.  Not that building.

21

Q.  Not which building?

22

A.  The one you’re asking me about in that

23

lean—to. It ain’t the same building.

24

Q.  But the building there that’s on that site,

68

KEEFE REPORTING COMPANY

U,-

I..

I-

‘.

SENDER:

‘Complete Items 1 andIor~

~ddiIionaIservices.

‘Complete Items

4a, and

•Pnnt your name arid address on the reverse of this form so that we can return this

card

you.

•Attac$, this form to the front of the mailpiece, or on the back if spacedoes not

‘~nte’Reftim

Receipt Requested’

on the malipiece belowthe articlenumber.

‘The Return Receipt will showto whom the article was delivered and the date

delivered.

C-

also wit

‘receive the

following services (for an

extra

fee):

1. 0 Addressee’s Address

-2.

XRestricted

Delivery

Consult

postmaster

for fee.

Article Addressed

to:

4a.

Article

Number

buane

StccK1p~a~5f~recL

4b~$erviceType

~ r

~Registered

0 Certified

tS... ~l t..

~ ~

Express

Mall

0 Insured

2.OB cSO

f-h ~Vashi

r~,C~tQfl

~RetumReceiptforMerchand~e

COD

Toy

lvi 11e1

b2s~~~’

7. Date D~ve~~

5. R~eivedBy:

(Pt4j.~.!~lame~

8. Addressee’s Address

(Onlyifrequested

andfee is

paid)

6. Signature:,~tA5idresseeorA

Form 3811,

Decem~er

1994

Domestic Return Receipt

C9~~

Date:

March

20, 2002

To:

Duane

Stock, 

Registered

Agent

Stock & Co., L.L.C.

205 South

Washington Street

Taylorville, IL 62568-0151

From:

Sutter

Sanitation Service, Inc.

Re:

Notice ofIntent to Request Local Siting Approval from

the

Effinghain County

Board for New Waste Transfer Station

NOTICE is hereby

given

that Sutter Sanitation Service, Inc., an Illinois

corporation,

intends

file with the Efflnghain County

Board a

request

for

local

siting approval for a new

waste transfer station to be located onthe real property legally described in Attachment A,

commonly 

known

as 2184 North 300th Street, Mason, IL 62443. The following

information is

providedpursuant to Section 39.2(b) ofthe Illinois Environmental Protection

Act,

415 ILCS

5/392(b):

Name 

and Address

Applicant:  

Sutter Sanitation Service, 

Inc.

l05EastMain           

P.O. Box 589

Shuinway, 

IL 62461

Location ofProposed Site:

2184

North

300th Street

Mason, IL 62443

Nature 

and

Size ofDevelopment:

Sutter

Sanitation

proposes to develop

and

operate a waste

transfer station (for non-hazardous solid waste only) on

approximately 3.23 acres at

this

location.

Nature of Activity 

Proposed:

The property

will

be used for purposes of

transferring

waste from

refuse collection vehicles to

transfer trailers,

which 

will then

transferred

to a solid waste landfill for

waste disposal only 

as approved bythe Illinois

Environmental Protection Agency

and

other regulatory

agencies as

authorized 

by statute. No hazardouswaste, as

defined by 

state and

federal law,

will

be accepted. No waste

disposal will take

place at

this

location.

Probable

Life 

ofProposed

Activity:

The probable

life

ofthe

waste transfer station will be in

excess of20 years.

Date 

Submittal:

The

request

for site approval will be

submitted to the

Efilngham County Board

April

19, 2002.

Right

to Review

and Comment:

The request

for

site approval

will 

conform

to the

requirements

ofthe Illinois

Environmental

Protection 

Act

and will include: (i) the substance ofthe Applicant’s

proposal

and(ii) documents in support ofthe Applicant’s

request. 

The

application 

and

documents so filed will be

available for

inspection

atthe office of

the

Effingham

County Board and

may be

copied

upon payment ofthe

actual cost

ofreproduction.

Any person

may file

written

comments 

with

the

Eflingham

County Board concerning

the appropriateness ofthe proposed site for

its intended

purpose. 

The

Effingham County

Board shall 

hold at least

one public

hearing

on the request

and

shall consider

any

comment received or postmarked

not later

than

30 days

after

the

date

ofthe

last

public

hearing.

-2-

)

ATTACHMENT

Legal Description ofReal Property Commonly

Known

as 2184 North 300th Street, Mason, IL 62443

part

ofthe West

Half

ofthe Southwest Quarter ofSection 22,

Township

North, Range

East

ofthe

Third Principal Meridian,

Effingham

County,

Illinois, 

and

being more

particularly described

as follows:

Commencing at an iron

(set) at the Southwest corner ofthe

West Half ofthe Southwest Quarter of Section 22, Township 6

North, Range 4 East ofthe

Third

Principal Meridian, thence North

00 degrees 00

minutes

00 seconds East (assumed bearing), a

distance

of874.64 feet to an iron

(set); thence North 90

degrees 00 minutes-O0 seconds

East,

a distance of40.0 feet to an

iron 

(set) on the

East right-of-way line

of S.A. Route

25-Sec.

101,

being

the point ofbeginning; thence

North

degrees

minutes 

00 seconds East, a distance of548.0 feet to an iron

(set); thence

North

90 degrees 00

minutes 

00 seconds

East, a

distance

257.0

feet

to an iron pin (set); thence South 00

degrees

minutes 

00 seconds West, a

distance

of548.0

feet

to an iron

(set); thence South 90 degrees 00

minutes-00 seconds West, a

distance

of257.0 feet tothe

point

beginning;

situated in the

County

Efflngham and

State 

ofIllinois.

Certificate Of Publication

STATE

OF ILLINOIS, EFF!NGHAM

COUNTY,

SS.

March 25, 2002

Effinghani,

Illinois

I,

Stephen

R. Raymond do 

certify that I am

the

authorized agent

and the publisher of the Effingham Daily News, a secular

newspaper

general

circulation published

daily,

except

Sunday

and

legal 

holidays in Effingham County, City of Efflngham

and

the State of Illinois and that I am authorized to make this

certificate

for the

said Newspaper that

the notice or

Intent to Reques-t Local Siting

Approval

relating

the matter

New -Waste Transfer Station

true copy

of which is hereto annexed, has

been printed 

aud

published in

the said Effingham

Daily News as follows:

thef1i~tonti~

21st

dayof

March, 2002=

thesecondonthe 28tl~yof 

March, 2002

thethirdonthe4th dayof 

April, 2002

and that 

the

said

newspaper

was

regularly published 

for a

period

of one year

prior

to the date of

the first

publication of

this

notice.

I Further certify that the face of the type in which each

publication ofthe

said 

notice was made the

same as

the

body type

and the classified advertising in the issue of the

said

newspaper in

which such publication

was made.

Further

certify that said newspaper is a newspaper as defined

in ‘An Act to

revise the law

in relation to notices’ as

ammended

Act

approved July 17, 1959.—ill. Revised Statues, Chap. 100,

Pain. 1-10.

Effingham Daily News

agent of the

Effingham Daily

News

APPLICATION FOR

LOCAL SITING APPROVAL FOR

PROPOSED SOLiD WASTE

TRANSFERSTATION-

EFFINGHAM COUNTY, ILLINOIS

Prepared for;

Effingham County Board

and

utter

Sanitation Services

/‘

- -

April 19, 2002

HURST-ROSCHE

ENGINEERS INC.

1400 E.

TREMONT ST.

P.O. BOX 130

HILLSBORO, IL 62049

217/532-3959

APRIL 19, 2002

RECEIVED

FROM STJTTER SANITATION SERVICES

APPLICATION FO1~LOCAL SiTING APPROVAL FOR PROPOSED SOLD)

WASTE

TRANSFER

STATION

EFYENGHAM

COUNTY, ILLINOIS PREPARED

FOR: Effingham County Board

and

Sutter Sanitation Services

April 

19, 2002

ROBERT L BEKRMAN

EFFINGHAM

COUNTY CLERK

DATE:

~// ~

SIG~D:___________________

_______________________________________________

MR.

HEDINGER: Okay. That’s all I have.

2  Thank you.          

3

MR. GOBCZYNSKI: Anyone else have a

4  question?

MR.

STOCK: Dwayne Stock, I represent-

the

6  land owner to the west of the supposed site. My

7  question has to deal with your comment about hazardous

8  waste, that they will not accept any there. What

9  happens when some hazardous waste does appear there? It

10 gets picked up by accident or whatever you want to call

11 it.

12

THE WITNESS: Sure. First of all, the

13 facility is required 

if you’ll refer to Criteria 2.

14 I realize you don’t have it in front of you. Let me

15 just summarize. The facility is required to inspect

16 loads that are received at the site on a regular basis.

17 Normally that would be on a daily basis. They would

18 take a load. It gets dumped onto the 

onto the

19 tipping floor. It’s spread out, and they visually

20 inspect that load. If there’s any items of concern,

21 obviously the driver’s questioned. If there’s any items

22 that can’t be dealt with, load it back up on the truck,

•23  send them on their way. So in reality the 

the onus

24 is put on the site to inspect loads that come into the

CL7O

Hanagan Reporting Service

Mt. Vernon, Illinois 62864

(618) 244-0216

:3-

I-

ILLINOIS POLLUTION CONTROL BOARD

February 20, 2003

LANDFILL 33. LTD.,

)

Petitioner,

)

v.

)

PCB03-43

)

(Third-Party Pollution Control Facility

EFFNG HAM COUNTY BOARD and

)

Siting Appeal

SUTTER SANITATION SERVICES,

Respondents.

STOCK & CO.,               

)

Petitioner,

)

PCB

03-52

v.

)

(Third-Party Pollution Control Facility

)

Siting Appeal)

EFFINGHAM COUNTY

BOARD 

and

- )

(Consolidated)

SUTTER SANITATION SERVICES,

)

Respondents.

STEPHEN F. HEDINGER OF HEDINGER LAW OFFICE APPEARED ON BEHALF OF

LANDFILL 33, LTD.;

CHRISTINE 0. ZEMAN OF HODGE, DWYER & ZEMAN APPEARED ON BEHALF OF

STOCK & CO.;

EDWARD DEETERS OF THE EFFINGHAM COUNTY STATE’S ATTORNEY’S OFFICE

APPEARED ON BEHALF OF THE EFFINGHAM COUNTY BOARD; and

CHARLES H. NORTHRUP AND DAVID A. ROLF OF SORLING, NORTHRUP, HAN~A,

CULLEN AND COCHRAN, LTD. APPEARED ON BEHALF OF SUTTER SANITATION

SERVICES.

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

On October 10, 2002, Landfill 33, Ltd. (Landfill 33) filed a petition requesting the Board

to review a September 19, 2002 decision of Effingham County Board (County Board) that

granted Sutter Sanitation Services’ (Sutter) application to site a solid waste transfer station in an

unincorporated area of Effingham County. On October 2 1, 2002, Stock & Co. (Stock) filed a

A-263

petition requesting the Board review the same County Board decision, and Landfill 33 filed an

amended petition.

The petitioners allege that (1) the County Board lacked jurisdiction over the siting

application; (2) the procedures followed during the landfill siting public hearing were

fundamentally unfair; and (3) that Sutter failed to satisfy six of the nine criteria listed in Section

39.2 of the Environmental Protection Act (Act). 415 ILCS 5 40.1 (2002).

After considering the evidence and arguments before it. the Board finds that the County

Board had jurisdiction and followed fundamentally fair procedures. The Board finds that the

County Board correctly determined that the landfill application satisfied the standards in Section

39.2(a) (i). (ii), (iii), (v) and (viii). 415 ILCS 5 39.2(a) (i), (ii. (iii), (v). (viii) (2002).

PROCEDURAL BACKGROUND

On November 7, 2002, the Board accepted Stock’s petition and Landfill 33’s amended

petition and consolidated them for hearing. On December 19. 2002, a hearing in this matter was

held. Sutter and Landfill 33 each presented witnesses. On December 30, 2002, Board hearing

officer Bradley Halloran issued a hearing report that directed simultaneous opening briefs to be

filed and served on or before January 10, 2003 and simultaneous reply briefs, if any, to be filed

and served on or before January 17, 2003. Public comment was due to be filed on or before

January 3, 2003.

Eight public comments were received. The parties filed briefs according to the set

schedule.

REVIE\V OF LOCAL SITING DECISIONS

Under Illinois law, local units of government act as siting authorities that are required to

approve or disapprove requests for siting of new pollution control facilities, including new

landfills. The process is governed by Section 39.2 ofthe Act. 415 ILCS 5/39.2 (2002). In

addition, Illinois law provides that siting decisions made by the local siting authorities are

appealable to this Board. The appeal process is governed by Section 40. 1 of the Act. 415 ILCS

5/40.1 (2002).

Section 39.2(a) provides that the local siting authority, in this case the Effingham County

Board, is to consider as many as nine criteria when revie\ving an application for siting approval.

415 ILCS 5/39.2(a) (2002). Section 39.2(g) of the-Act provides that the siting approval

procedures. criteria, and appeal procedures provided for in Section 39.2 are the exclusive siting

procedures for new pollution control facilities. However, the local siting authority may develop

its own siting procedures. if 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. 1036, 530 N.E.2d 682, 692-93 (2d Dist. 1988). Only if the local body finds that the

applicant has proven by a preponderance of the evidence that all applicable criteria have been

met can siting approval be granted. Hediger v. D & L Landfill, Inc., PCB 90-163, slip op. at 5

(Dec. 20, 1990).

A-264

When reviewing a local decision on the nine statutory criteria, this Board must determine

whether the local decision is against the manifest weight of the evidence. McLean County

Disposal. Inc. v. County of McLean, 207 Ill. App. 3d 352,

566

N.E.2d 26 (4th Dist. 1991); Waste

Management ofIllinois, Inc. v. PCB, 160 III. App. 3d 434, 513 N.E.2d 592 (2nd Dist. 1987); E &

•E Hauling, Inc. v. PCB, 116 Ill. App. 3d 586, 451 N.E.2d 555 (2nd Dist. 1983). affd in part 107

Ill.2d 33, 481 N.E.2d 664 (1985). 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. CDT

Landfill Corporation v. City of Joliet. PCB 98-60. slip op. at 4 (Mar 5, 1998). citing Harris v.

Day, 115 III. App. 3d 762, 451 N.E.2d 262, 265 (4th Dist. 1983).

This Board, on review, may not re-weigh the evidence on the nine criteria. Where there

is conflictiiig 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 Taskforce v. PCB,

198 Ill. App. 3d 541, 550, 555 N.E.2d 1178, 1184 (3d Dist. 1990); Tate v. PCB, 18$ Ill. App. 3d

994, 1022, 544 N.E.2d 1176, 1195(4th Dist. 1989); Waste Management of Illinois. Inc. v. PCB,

187 Ill. App. 3d 79, 82, 543 N.E.2d 505, 507 (2nd Dist. 1989). 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., PCB 90-

94, (Aug. 30, 1990);

affd,

219 Ill. App. 3d 897. 579 N.E.2d 1228 (5th Dist. 1991).

In addition to reviewing the local authority’s decision on the nine criteria, the Board is

required under Section 40.1 of the Act to determine whether the local proceeding was

fundamentally fair. In E & E Haulina. Inc. v. PCB, the appellate court found that although

citizens before a local decision maker 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. E & E Hauline. Inc. V. PCB, 116111. App. 3d at 596. 451 N.E.2d at 564;

see also

Industrial Fuels & Resources v. PCB. 227 Ill. App. 3d 533,

592

N.E.2d 148 (4th Dist.

1992); Tate v. PCB, 188 Ill. App. 3d at 1019, 544 N.E.2d at 1193. Due process requirements are

determined by balancing the weight ofthe individual’s interest against society’s interest in

effective and efficient governmental operation. Waste Management of Illinois v. PCB, 175 Ill.

App. 3d 1023, 1037, 530 N.E.2d 682, 693 (2nd Dist. 198$). The manner in which the hearing is

conducted. the opportunity to be heard, the existence of

exparte

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.,P-CB 90-163, slip op. at

(Dec. 20, 1990).

STATUTORY BACKGROUND

Section 40.1(b) of the Act provides:

Ifthe

. . .

governing body ofthe municipality

. . .

grants approval under Section

39.2 ofthis Act, a third party other than the applicant who participated in the

public hearing conducted by the

. . .

governing body of the municipality may,

within 35 days after the date on which the local siting authority granted siting

approval, petition the Board for a hearing to contest the approval of.

. .

the

governing body of the municipality. 415 ILCS

5,!4Q.l(b)

(2002).

A-265

H

According to Section 39.2(b) of the Act, no later than 14 days before requesting site

approval from the County Board, Sutter was required to “cause written notice ofsuch request to

be served either in person or by registered mail, return receipt requested,” on owners ofproperty

within 250 feet of the site boundaries. 415 ILCS 5/39.2(b) (2002).

Before the County Board could approve Sutter’s application to site a transfer Station

within Effingham County, Sutter was required to submit sufficient details describing the

proposed facility to demonstrate compliance with nine criterion provided in section 39.2(a) of the

Act. 415 ILCS 5.-~39.2(a)(2002). Landfill 33 and Stock contend that the County Board’s

conclusion that Sutter demonstrated compliance with criterion (i), (ii). (iii), (v), (vi). and (viii)

was against the manifest weight of the evidence. Those criterion require:

(i)

the facility is necessary to accommodate the waste needs of the area it is

intended to serve;

(ii)

the facility is so designed, located and proposed to be operated that the

public health, safety and welfare will be protected;

(iii)

the facility is located so as to minimize incompatibility with the

character of the surrounding area and to minimize the effect on the value

ofthe surrounding property;

(v)

the plan of operations for the facility is designed to minimize the danger to

the surrounding area from fire. spills, or other operational accidents;

(vi)

the traffic patterns to or from the facility are so designed as to

minimize the impact on existing traffic flo\vs;

***

(viii) 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. 415

ILCS 5/39.2(a) (i), (ii), (iii), (v). (vi) (viii) (2002).

PRELII\IINARY MATTERS

The parties raised a number issues at hearing and in their post-hearing briefs that require

the Board’s consideration. The Board will address each preliminary matter in turn.

Landfill 33’s Offer of Proof

At the Board hearing, Sutter objected to Landfill 33’s attempt to call Tracy Sutter as a

witness because Landfill 33 did not indicate in its response to interrogatories that Mr. Sutter

A-266

would be called. Tr. at

57,1 

Landfill 33 argued that in the interrogatory response. it reserved the

right to put on whatever case is necessary, and that the need to call Mr. Sutter as a witness did

not arise until 6:30 p.m. the night prior to the hearing. Tr. at 58-59. Hearing Officer Halloran

sustained the objection by Sutter, but allo\ved Landfill 33 to call Mr. Sutter as an offer of proof.

Tr. at 59.

The Board finds that Sutter’s objection is unfounded, and accepts the testimony ofMr.

Sutter into evidence. Counsel for Landfill 33 stated that he did not realize the need to amend the

interrogatory response until December 1$, 2002

—

the night prior to the hearing. All parties had

the opportunity to cross-examine Mr. Sutter on the issues raised by Landfill 33. and were able to

present additional arguments in their post hearing briefs. Accordingly. no material prejudice

resulted from calling Mr. Sutter as a witness.

Respondents’ Motions to Strike Landlill 33’s Fundamental Fairness Arguments

In their post-hearing briefs, Sutter and the County Board both move to strike any

fundamental fairness arguments raised by Landfill 33. Sutter at 5, County Board at 10. The

respondents argue that Landfill 33 did not allege any specific grounds of fundamental fairness in

their amended petition for review, but merely noted that the proceedings were fundamentally

unfair.

Id.

Sutter also argues that Landfill 33 did not identify any specific facts demonstrating

fundamental unfairness in response to S utter’s interrogatories. Sutter at 5.

Landfill 33 argues that the motions to strike are untimely, and should themselves be

stricken. Landfill 33 Reply at 2. Landfill 33 asserts that the respondents never filed any written

pleading with the Board or hearing officer on this issue until their closing briefs filed at the 1 lth

hour.

Id.

Landfill 33 also argues that, because Sutter did not include a copy of the discovery

request or response with its brief, Sutter has waived this issue. Landfill 33 at 3.

The Board will not grant the motions to strike. Motions attacking the sufficiency of a

pleading filed with the Board must be filed within 30 days after service of the pleading unless the

Board determines material prejudice would result. 35 111. Adm. Code 101.506. The respondents

did not attack the sufficiency ofLandfill 33’s amended petition in a timely manner. The Board

does not find that material prejudice will result if the motions are not accepted. Accordingly, the

motions were not timely filed and will not be addressed by the Board.

Landfill 33’s Notice of Erra~-~--

On January 14, 2003, Landfill 33 filed a notice of errata and a corrected closing brief.

Landfill 33 asserts that a number of mistakes were identified with its closing brief filed on

The County Board’s record will be cited as “R. at

.“;

the Board’s hearing will be cited as

‘Tr. at

“;

Landfill 33’s brief will be cited as “Landfill 33 at

.“;

Stock’s brief will be cited as

“Stock at

.“;

Sutter’s brief will be cited as “Sutter at

.“;

The County Board’s brief will be

cited as “County at

_.“;

“Reply” will denote a party’s reply brief. Exhibits will be prefaced by

the party’s abbreviated or full name and “Exh.

.“

A-267

January 9, 2002, Landfill 33 asserts that the mistakes were inadvertent, and that the corrected

brief is not intended to substantively modify the pleading in any way. Notice of Errata at 1. N.o

response to the notice of errata was filed, and the Board accepts Landfill 33’s corrected closing

brief.

FACTS

On April 19, 2002, Sutter filed its application for local siting approval for a proposed

solid waste transfer station with the Count Board. C4. A public hearing on the application was

held before the County Board on August 14, 2002. C 127. Sutter called four witnesses

—

David

Kimmie. Mark Reitz. James Bitzer and Tracy Sutter. Landfill 33 presented three witnesses in

opposition to the application

—

Brian Hayes, Don Sheffer and Bryan Johnsrud.

The public comment period closed on Friday, September 13, 2002. The County Board

met on Monday, September 16, 2002, and unanimously voted to approve the application. R. at

C434.

Sutter proposed to site the transfer station on three acres ofland owned by Hacker family

located off County Highway 25 (Altaniont

—

Farina Blacktop). just north ofTownship Road 200

East. R. at C~.77.The property currently contains a grain elevator, grain bins, pole barns, sheds

and a two-s:orv frame house. R. at C7, C65, C77, C239

Sutter proposes to use an existing

former grain storage building, with modifications, as a transfer station. R. at C80. Existing

pathways will be used for the transfer station. R. at C78,C16. The waste transfer is proposed to

occur in a pole barn. R. at C242. C77.

The intent of the facility is to allow the transfer ofwaste from refuse collection vehicles

such as pacl~ertrucks to transfer tn.icks. R. at C7. The waste transfer facility as proposed will

consist of an enclosed tipping floor, and loading bay. Waste delivered to the site will be

deposited directly on to the concrete tipping floor, and then loaded into a transfer trailer using a

rubber-tired end loader.

Id.

When full, the transfer trailer will be taken to a solid waste landfill

for

waste disposal.

Id.

At the hearing, the following testimony was adduced:

To meet criterion (i). Sutter presented the testimony of Mr. Kimmle. Mr. Kimmle is a

civil engineer who works for Hurst-Rosche Engineers. He has been an employee of Hurst-

Rosche since 1986, and has experience with both applications for siting approval and design

work on tra:tsfer stations. R. at C137. Mr. Kimmle testified that he utilized the Agency’s annual

report to id~ntifilandfill facilities located in a 3 0-50 mile radius from the proposed transfer

station. R. at C 140. He found that three current operating landfill facilities are within the 30-

mile radius of the proposed transfer station. He categorized the disposal of those facilities as

limited. R.

at

C 14 1. Mr. Kimnile identified six other facilities within the 50-mile radius. He

categorized the waste capacity within the 50-mile radius as adequate. R. at C 142.

But. Mr. Kimmie identified a dilemma in maintaining a viable out-of-county waste

disposal source and a method to transfer county-generated waste to one or more ofthese

A-268

facilities. Mr. Kimmle testified that to economically access out-of-county landfills, a waste

transfer station is necessary. R. at C 143. He testified that there has been a 50

decline in the

number of landfills since 1992 and a 40

increase in the number of operating transfer stations

since 1996. R. at C 143. Mr. Kimmle testified that the enhanced environmental regulations have

caused a decline in the number of operational landfills, there’c forcing the remaining facilities to

become larger and service a greater area. R. at C 144.

Mr. Kimmle testified that by siting the proposed transfer station, and increasing the

service area from a 30-mile radius to a 50-mile radius, the available landfill capacity has been

increased from two to eight. R. atCl44. Mr. Kimmle testified that Sutter’s facility is necessary

to accommodate the waste needs of the area it’s intended to serve. R. at C 144.

Mr. Kimmie testified that a house is located on the proposed site for the transfer facility,

but that it is not inhabited and will be used as an office for the waste transfer facility. R. at C 147.

Mr. Kimmle also testified that proposed facility has been located a minimum of 1 ,000 feet from

the nearest property zoned for primary residential use.

Id.

Mr. Kimmle testified that the potential for leachate is minimal because the operations are

indoors. But, he stated that any leachate generated will be collected and directed to a local sump

that will then pump the water to a nearby leachate storage tank contained within a concrete

containment dike prior to disposal off-site. R. at C 150. Mr. Kimmle testified that the water

resulting from washing the floor down will be contained within the building (in the lower

elevation floor) and directed into the collection system. R. at C 153-54.

Mr. Kimmle testified that the siting of the transfer station is consistent with the

Effingham County Solid Waste Management Plan (Plan). R. at C 162. Mr. Kimmle testified that

the Plan indicates the County’s intention to support the disposal of waste generated in the county

at both in-county and out-of-county landfills. R. at C 1443. He states that all waste collection in

Effingham County is provided by private haulers that have the right to choose the landfill at

which they dispose of waste. R. at C 161.

Licensed real estate broker and appraiser James R. Bitzer testified that the proposed

expansion met the requirements of criterion (iii). Bitzer has been a licensed broker since 1973,

and has experience with transfer sites. R. at C 1 78, 180. He testified that the proposed expansion

minimized the incompatibility with the character ofthe surrounding area and minimized the

effect on the value ofthe surrounding property. R. at C 182. Bitzer testified that the character of

the surrounding land is predominantly level agricultural cropiand and that no significant

expansion or urbanization is occurring in the area. R. at ClSi.

Tracy Sutter testified that lie is a sanitation engineer and has been in the waste industry

all his life. R. at C 184. He said that Sutter Sanitation has been in existence for 34 years. Id.

Mr. Sutter stated that Sutter primarily picks up residential trash, commercial trash and light

industrial trash.

Id.

He testified that Sutter has never been cited or convicted for a violation in

the field of solid waste management. R. at C 186.

A-269

Mr. Sutter testified that if sited, the proposed facility would not hold waste overnight. R.

at C 197. He said that trucks typical to the industry today do not have problems opening their

tailgates fully in the proposed transfer station. R. at C263-64. Although he acknowledged that

issues do exist with the maximum available height for dumping roll-offs, he testified that on-site

personal will always be present to assist drivers in this regard. R. at C265.

Testifying about criterion (i) for Landfill 33 was Mr. Don Sheffer. Mr. Sheffer is a

registered professional engineer in the state of Illinois. R. at C203. He has been an engineer

with Homer L. Chastain and Associates for approximately 40 years. He was the project manager

for the preparation ofthe Effingham County Solid Waste Management Plan, R. at C204. He

reviewed the application submitted to the countv, the County’s Plan, the five-year update of the

Plan and information from the Agency on landfill capacities. R. at C205.

Mr. Sheffer testified that S utter did not perform a traditional needs analysis, and failed to

include current and projected waste generation rates. R. at C206. He testified that Landfill 33

has a ~ecently issued .permit that extends their life for an additional 22 years making the 7 year

figure in Sutter’s application inaccurate. R. at C207. Mr. Sheffer noted that D and L Landfill

lists 45 years of remaining life, Wayne County has 30 years of remaining life, Lawrence County

has 38 years of remaining life and the Five Oaks facility has 29 years of life.

Id.

Mr. Sheffer said that even though there are fewer landfills, the capacity of those landfills

is increasing. R. at C207. He testified that any hauler operating in the entire Effingham County

area has at least one landfill available to him within 30 miles ofthe point where the hauler picks

up at a house. R. at C2 10. He testified that a method to assess those landfills exists without the

transfer station, and that the haul distances are not excessive to make it economically unfeasible.

R. atC2l 1.

Mr. Sheffer testified that the transfer station may be a convenience to the applicant, -but

not absolutely necessary to provide the proposed service area with adequate and economical

landfill disposal through the direct haul method. R. at C2l2. He testified that the area has five

large landfills available, and at least one ofthose is available within 50 miles indicating direct

haul is the best choice. R. at C218.

~v1r.Sheffer said that the proposed transfer station is an option of the Plan that was

considered in 1 994. but that the recommendations were that the county continue direct haul to in-

county and out-of-county landfills. R. at C2l6. He testified that the five-year update continues

the recommendations of the first plan. Id. He said that the county had the option to recommend

the construction ofan in-county transfer station but chose not to. R. at C2 17.

Mr. Sheffer testified that Landfill 33 has been granted a permit that would give them an

additional 22 years of life. R. at C226.

Bryan Johnsrud, a professional engineer for Andrews Environmental Engineering in

Springfield. testified on behalfof Landfill 33. He has been so employed for 12 years, and has

been involved with solid waste management facilities the entire time. R. at C23 1-C232. Mr.

A-270

‘S

Johnsrud testified that there is a dwelling less than 200 feet from the building that Sutter wants to

use for a transfer station. R. at C238.

Mr. Johnsrud said that the building intended to house the transfer station was not

designed for that purpose. R. at C241. He said that the facility will probably have to be washed

down on a daily basis generating a large amount of leachate that has to be pumped out and

treated. R. at C249. He identified concerns about the floor slope and thickness, and the wooden

structure of the building. R. at C245. C250. He also expressed concerns o~verthe 16-foot

clearance between the floor and the rafters. R. at C25 1. He asserted that an accident will

happened arid there is going to be physical damage and possible injuries.

Id.

Mr. Kimnile testified that the Metropolitan Sewer District in St. Louis readily accepts

leachate arid provides contracts on short notice. R. at C267. I-Ic anticipates that, at least initially,

the leacliate would be hauled there. R. at C268. Mr. Kimmle testified that the application

provides that any cracks in the concrete floor will be sealed with a sealer and maintained

throughout the operation of the facility. R. at C268-69.

The Board received two public coniinents at the hearing. The first was by Nancy Deters.

She was sworn in and subject to cross-examination. Tr. at 28. She was in favor of Sutter’s

proposed transfer station. Tr. at 28-29. Lloyd Stock made the second public comment. He, was

not sworn in. Tr. at 39. He requested that the Board reverse the County’s decision to grant siting

approval to Sutter. Tr. at 42.

Public Comments

A number ofpublic comments for and against the siting of the proposed transfer station

were accepted at the local level. The Board finds that consideration ofpublic comments during

the siting process is appropriate. However, public comments are not entitled to the same weight

as expert testimony submitted under oath arid subject to cross-examination. Public comments

receive a lesser weight. City of Geneva v. Waste Management Inc., PCB 94-58 (July 21, 1994);

Browning Ferris Industries v. Lake County Board of Supervisors, PCB 82-101 (Dec. 2, 1982).

The public comments submitted by interested persons froni the surrounding community

at the local level and at the Board level are evidence in the record properly considered by the

decision making body. But. these public comments are entitled to less weight than is sworn

testiniony subject to cross-examination. The Board will assess public comments in this light

when deciding whether or riot the County Board’s decision is against the nianifest weight ofthe

evidence or fundamentally unfair.

LANDFILL 33 ARGUMENTS

Landfill 33 challenges the decision on three grounds: (1) that Sutter failed to comply

with statutory jurisdictional prerequisites; (2) that the proceedings before the County Board were

fundamentally unfair; arid (3) that the decision ofthe County Board was against the manifest

weight of the evidence with respect to criteria (i), (ii), (v), (vi). arid (viii).

A-271

Jurisdictional

Landfill 33 asserts that Sutter did riot comply with mandatory notice requirements in that

it did not assure that the notice was timely delivered to all nienibers of the General Assembly

from the district in which the proposes site is located. L33 brief at 3. Landfill 33 contends that

Section 39.2(d) of the Act requires notice to be delivered by certified riiail to the appropriate

legislators no later than 14 days prior to hearing—July 31, 2002.

Id.

Landfill 33 asserts that

Senator N. Duane ~‘olanddid not receive his notice until August 1. 2002. L33 brief at 4.

Landfill 33 argues that Sutter’s attenipt to hand-deliver notice to Senator Noland on July 31,

2002 is ineffective as failing to have complied with the statute.

Id.

Accordingly, argues Landfill

33, the proceedings are void and the County Board ruling must be vacated.

Id.

Fundamental Fairness

Landfill 33 identifies three manners in which the proceedings were fundanientally unfair.

Recycling Issue

First, Landfill 33 asserts that it was provided fundamentally unfair proceedings through

the County Board’s refusal to allow Landfill 33 to address recycling issues which had been

discussed by Sutter and niore than one conimenter, and were ultimately relied upon by the

County Board in rendering a decision. L33 at 5.

Landfill 33 asserts that at least one County Board niember, Voelker, expressly voted in

favor of Sutter’s proposal because Sutter claimed it would also operate a recycling center, but not

without the transfer station. L33 Reply at 6.

Landfill 33 contends that: (1) early in the underlying proceedings, the County Board

chairman instructed the audience that the proceedings were to concern themselves with Sutter’s

proposal arid nothing else; (2) that Tracy Sutter spoke at length about the recycling center and in

fact threatened the County Board that he would close down the recycling center if transfer station

siting approval was not given; (3) that Landfill 33 offered to present testimony to address the

recycling issue raised by Tracy Sutter but was instructed by the chairman not to proceed with

such testimony: and (4) that the County Board expressly considered this recycling issue, and in

fact ruled in Sutter’s favor on the basis ofthe recycling program. L33 at

Landfill 33 asserts that the recycling issue should have been largely irrelevaiit to the

siting issue, but was actually a first and foreniost concern of the County Board. L33 at 6.

Landfill 33 concludes that it was deprived of an opportunity to address an issue that was pivotal

to the County Board’s decision, and was prejudiced as a result. L33 at 6. L33 asserts it was

prejudiced because it was not given the same and opportunity as others to address the recycling

issue. L33 Reply at 6. Landfill 33 contends that because no transcription ofthe September 16,

2002 nieeting is in the official record it cannot be said, one way or another, whether more than

one member of the County Board commented on the recycling issue.

Id.

Landfill 33 argues that

the availability of public comment did not accomplish its purpose because it was not submitted

under oath and is given less weight.

Id.

A-272

Visits by the County      

Landfill 33 asserts that the County Board conducted a visit to the transfer site on July 3 1,

2002. and that Landfill 33 was given no opportunity to attend. L33 at 6. Landfill 33 also asserts

that just prior to filing the application, several County Board niembers visited the recycling

center and got a “red carpet tour.” L33 Reply at 7. Landfill 33 argues that even if a site visit is

acceptable, it must be accompanied with notice to the parties to allow them to attend as well.

Id.

Amendment ofApplication

Landfill 33 asserts that at the end ofthe public comment period after the hearing. Sutter

submitted a public comment that for the first time contended that the proposed transfer station

was necessary because Landfill 33 may have insufficient capacity. L33 at 6. Landfill 33 claims

that this new basis for need was niade at the close of the public comment period thus not

providing an opportunity to respond or present contrary evidence or argument. L33 at 7.

Landfill 33 argues that applicants are permitted to make only a single amendment to their

application that must be made prior to completion ofthe presentation of evidence at hearing, and

even in that case, the decision deadline is extended by 90 days.

Id.

Landfill 33 argues it lost the

opportunity to cross-examine as well as present its own evidence on this issue as a result of the

untimely amendment.

Id.

Sitin2 Criteria

Landfill 33 challenges five ofthe siting criteria. Their arguments on each issue will be

summarized below:

Criterion (fl

Landfill 33 asserts that based on Sutter’s own work product, it is clear that there is no

need for the proposed facility in that the transfer station is clearly not necessary to accommodate

the waste needs of its intended service area. L33 at 9. Nothing about the proposal, argues

Landfill 33, supports the view that without this transfer station the out of county disposal

facilities might not be viable.

Id.

Further, asserts Landfill 33, Sutter’s burden was to prove that

the service area needs the transfer station, not that out ofcounty facilities need it.

Id.

Landfill 33 argues that Sutter assumes that a 3 0-50 niile range is the economical distance

a refuse collection vehicle can travel on a routine basis, and that the evidence shows that the out

ofcounty facilities are each located 50 or miles less fr’oni the location of the proposed transfer

station. Thus. argues Landfill 33, these facilities can already be economically accessed without

creating a transfer station. L33 at 10.

Landfill 33 contends that professional engineer’ Don Sheffer demonstrated that virtually

any location within the service area is within 30 miles of the largest ofthe landfills identified by

Sutter. L33 at 10. Landfill 33 asserts that Sutter’s approach does not constitute atypical needs

analysis. in that Sutter contends the need for the facility hinges on the dilemnia in niaintaining a

A-273

viable out of county, waste disposal source and a method to transfer county generated waste to

one or niore of these facilities. L33 Reply at 8.

Landfill 33 claims that Sutter could have limited its proposed service area to Effingham

County, but did not do so in its application and its amendment to modify the service area to one

exclusive to Effinghani County was niade at the last day of public coniments following the

hearing and is, thus, too hate. L33 Reply at 9, 10.

Landfill 33 asserts that even with the transfer facility, the eight facilities identified by

Sutter as available for the disposal capacity for the service area are all easily within the range

identified by Sutter as a reasonable hauling distance (30-50 miles). L33 Reply at 9. Landfill 33

argues that Sutter has admitted no need exists for the transfer station, but that it might be

convenient for Sutter’s own business purposes. L33 Reply at 10.

Criterion (ii)

Landfill 33 asserts that the County Board simply refused to accept unrebutted testimony

concerning deficiencies of the proposed transfer station with respect to criterion (ii). L33 at 13.

Landfill 33 notes that pursuant to Section 22.14 of the Act, it is unlawful for anyone to establish

a transfer station within 1,000 feet of a dwelling.

Id.

Landfill 33 asserts that Sutter’s own

documentation reveals the existence of a dwelling less than 200 feet from the proposed transfer

station.

Id.

Landfill 33 also contends that a dwelling exists across the road from this facility and

that the County Board refused to accept evidence relating to that structure. L33 at 14.

Landfill 33 contends that the wood framing on the inside of the proposed transfer station

is improper for a transfer station against which waste will be duniped, scraped and pushed during

everyday operations. L33 at 14. In addition, Landfill 33 claims that the structure lacks walls

within the facility against \vhiich a scraper can push waste in order to scoop it in to the

appropriate receptacle.

Id.

Criterion (v)

Landfill 33 contends that because of its wooden interior and rural location the proposed

transfer station is at a greater risk offire, L33 at 14. Landfill 33 asserts that the concrete floor in

the building is crumbling thus posing an environmental hazard. L33 at 15. Landfill 33 also

asserts that the door and ceiling heights in the proposed station pose a hazard for roll-off

containers, arid indicate that Mr. Johnsrud testified that the issue is not whether an accident will

occur, but when and how bad it will be. L33 at 15.

Landfill 33 contends that Sutter made no efforts to calculate the aniounts of heacliate it

will generate, nor what specifically it will do with that leachate, Landfill 33 at 16. Indeed,

Landfill 33 states. Sutter is not even aware ofwhether it will be able to find someone to accept

and treat the leachiate,

Id.

Landfill 33 asserts that the siting authority cannot simply defer to the Agency when there

is insufficient evidence to support an applicant’s siting requests. L33 Reply at 13. Accordingly,

A-274

1.’

Landfill 33 refutes Sutter’s claim that the majority of the issues presented by Mr. Johnsrud

should be part of the Agency application process. 

Id.

Criterion (vi)

Landfill 33 asserts that Mr. Johnsrud testified that when considering the small site, the

close proximity of the scale house to the road, and the tight turning radiuses into and Out of the

proposed transfer station, traffic disruption and safety hazards are potential problems. L33 at 16.

Landfill 33 clainis that Sutter did not even provide a traffic count of the anticipated number of

vehicles it would receive from its recycling business to compare with traffic issues relating to the

transfer station.

Icy.

Finally. Landfill 33 argues that Sutter did not address the impact of facility

traffic during the road restriction months (January through April) for the roadway approaching

the facility,

Id.

Criterion (viii)

Landfill 33 asserts that nowhere in the Plan is the need for a transfer station asserted.

L33 at 11. Landfill 33 refutes Sutter’s claim that the station is needed to meet the Plan’s

encouragement of the use of out-of-county waste facilities, and asserts that the 50-mile

economical transport radius established by Sutter is easily met without any transfer station.

Id.

Landfill 33 argues that although the Plan considered transfer stations as an option in a

preliminary step of the planning process, the Plan rejected the use of transfer stations and opted

solely for the continued direct hauling ofwaste to in and out ofcounty sites. L33 at 12, L33

Reply at 11. In short, asserts Landfill 33, Sutter is focusing upon components ofthie Plan that

were proposed but not adopted by the County. L33 Reply at 11. Finally, Landfill 33 asserts that

the Plan does not list any new programs or facilities to be developed during the 2-4 or 5-10 year

period.

Id.

STOCK’S ARGUMENTS

Stock challenges the decision on two grounds: (1) that the proceedings before the County

Board 

were fundamentally unfair; and (2) that the decision of the County Board was against the

manifest weight ofthe evidence with respect to criteria (i). (ii), (iii), (v), and (viii).

Fundamental Fairness

Stock identifies four ways in which the proceedings were fundamentally unfair.

Transcript Availability

Stock contends that when its registered agent, Duane Stock, contacted the Effingham

County Clerk on October 2, 2002, to obtain a copy ofthe hearing transcript, he was told the

transcript was not available through the County Board and was advised to contact counsel for the

ap~1icant.Stock at 30. Stock argues that a siting authority’s failure to provide access to the

transcript is enough to make the proceedings fundamentally unfair.

Id.

Stock contends that it

A-215

was legally entitled, pursuant to Section 39,2(c) ofthe Act. to review a copy of the transcript at

the offices of the County Board before its appeal was due, but was denied that right. Stock

Reply at 1$. Stock asserts that the County Boards delegation of its record keeping responsibility

to the attorney for the applicant is itself suggestive of collusion between the applicant and

decision-maker.

Id.

Stock asserts it was prejudiced because its arguments in the petition for review had to be

based Solely on the siting application amid Duane Stock’s attendance at the hearing. Stock at 30.

Stock argues that this failure is egregious because the transcript was not available through the

County Board until after the deadline for appeal

—

more than a nionthi after the close of the public

conimer.t :eriod and more than six weeks after it had initiahl:: been transcribed, Stock at 3 1.

Stock contends it was further prejudiced by miiisstatements about the testimony at hearing

contained

a letter S utter’s attorney sent to the County Board~sattorney that was relied upon by

the County Board mi making its decision. Stock at 32.

Recycling Issues

Stock argues that the County Board based its decision on Sutter’s threat to chose the

recycling center instead of the statutory criteria in light of Sutter’s threat at the underlying

hearing to close the recycling center if the siting for transfer station was not approved. Stock at

33, 34. Stock asserts that the County Board was confused about the recycling issue in that the

chairman stated the County Board could not accept comnients at hearing based on recycling, but

did accept public comments. Stock at 35, 36. Stock asserts that the niinutes of the September

16, 2002 nleetirig reveal that County Board niember Voelker said recycling at this location is a

valuable asset needed in Effinghani County. and that this statement was made immediately prior

to the County Board’s vote on the transfer station. Stock Reply at 21.

Further. Stock contends that Sutter was allowed to present evidence that the transfer

facility was needed for’ n’ecycling to take place in Effingliani County, but those opposed to the

facility were not allowed to present evidence of the other alternatives that are already available

except as 

public comment. Stock at 36. Stock argues that bias or prejudice by the County

Board

because a disinterested observer niighit conclude the adniinistmative body or its members had in

some measure adjudged the facts as well as the law in advance of hearing it. Stock Reply at 24.

Stock argues that the claims made by the County Board that substantial discussion was

had arid consideration given to all of the evidence

put

on by both Landfill 33 and Sutter are

unsupported by any citation to the record and should be stricken or otherwise not considered

here. Stock Reply at 3.

Undisclosed relationships                              

Stock asserts that the fact that Duane Stock is the first cousin of County Board Member

Carolyn \\‘ihlenburg was not disclosed b~the County Board. Stock at 36. More importantly,

contends Stock. the mother-son relationship of State’s Attorney Ed Deters, who provided legal

counsel to the County Board, and Nancy Deters, an outspoken advocate for the recycling center

A-276

and thus the transfer station, was also never disclosed,

Id.

Stock asserts that Nancy Deters even

vouched for Suttem’s character, but that the fact that the decision-maker’s legal counselor was her

son was never pro: erly disclosed. Stock at 37.

Tours of the

Site

Stock contends the record indicates that

ex pane

contacts occurred between the applicant

and the County Board thereby biasing the County Board and resulting in its decision to approve

local siting even thcugh the criteria had not been met. Stock at 38. At hearing. Stock asserts,

Sutter admitted that County Board members toured the building to be used for the transfer station

and that the expected operations ofthe transfer station was possibly in their minds. Stock at 39.

Stock argues that fundaniental fairness requires that representatives of all parties to the siting

proceeding be given an opportunity to accompany the local governing body when it takes such a

tour.

Id.

Siting Criteria

Stock challenges five of the siting criteria. Their arguments on each issue will be

summarized below:

Criterion (i~

Stock asserts that as a matter of law, potential convenience for waste haulers does not

demonstrate need. Need, asserts Stock, connotes a degree of requirement or essentiality and not

just reasonable convenience. Stock Reply at 5. Stock contends the applicant must demonstrate,

at a minimum, an urgent need for, and the reasonable convenience of, the new facility,

Id.

Stock

argues that the Board and the First District Appellate Court ruled that improvement in the

efficiency ofhauling operations is adequate to meet the statutory requirement of necessity.

Id,

citing

Waste Management of Ihlin~is.Inc. v.

PCB. 

243 Ill. App. 3d 65, 69, 600 N.E.2d 55 (1 st

Dist. 1992).

Stock focuses on the testimony ofSutter’s witness Mr. Kinimhe and the application itself.

Both, asserts Stock. concede that the regional waste disposal capacity already appears to be

adequate. Stock at 9. Stock contends that Sutter did not and cannot demonstrate any urgent need

for the facility, but instead only presented evidence regarding the possible economic benefit that

the transfer station niight provide to waste haulers. Stock at 13.

Stock argues that in the application Sutter alternates -“6Ct~eenroad miles when referring

to distances from existing waste disposal alternatives and miles as the crow flies when referring

to distances from its own proposed facility. Stock at 12. This, asserts Stock, artificially creates

an appearance that the current alternatives for waste disposal such as the Shelbyville transfer

station are further away.

Id.

Stock contends that Sutter did not present evidence regarding waste production or waste

generation ofthe area as is customary and required by the Second and Third District Appellate

Courts. Stock at 15.

A-277

Criterion (ii)

Stock argues that upon consideration of all evidence, it is plain that Sutter failed to

demonstrate that the public health, safety and welfare will be protected. Stock at 17. First,

contends Stock, Sutter’ has not designed a waste transfer station, but has simply proposed slight

modifications to one of three pole barns currently located at a site where a grain elevator used to

be operated.

Id.

Stock asserts that the application itself concedes that the closest dwelling is located on the

property proposed for the transfer station, but that no evidence was presented that the two-story

house will only be used as an office. Stock at 18. 19.

Stock contends that nothing is planned to prevent liquid wastes and leachate from

running off the concrete floor and onto the ground surrounding the building; that older trucks

used by other haulers will be unable to open their tailgates fully when unloading in the building

because of inadequate clearance; that rolh-offs will not be able to raise their beds to the full

height as designed if unloading in the building; and that no safe alternatives were presented for

when these vehicles cannot be unload as designed. Stock at 20. Stock asserts that the record

demonstrates that, as designed, located and proposed to be operated, Sutter’s facility would

violate several regulatory standards. Stock Reply at 7.

Stock highlights the testimony of Tracy Sutter, who when asked about which direction

the

water that drains froni the facility would go and whether the lake would be affected,

responded he was assuming that the water does not go in that direction. Stock Reply at 8.

Stock argues that the County Board cannot simply defer to the Agency when there is in

sufficient evidence to support an applicant’s siting request. Stock Reply at 10.

Criterion

(iii)

Stock asserts that to satisfy this criterion. Sutter provided a letter from a certified

residential real estate appraiser, but that the letter gives no bases for its conclusion that the

property values will not be affected. Stock at 2 1. Stock argues that Sutter failed to provide any

evidence as to how the facility will niinimize incompatibility with the character ofthe area and

that the decision of the County Board is, therefore, against thie manifest weight ofthe evidence.

Stock at 22.

Criterion (v)

Stock assents

flint 

instead of being designed to minimize the danger to the surrounding

area, Sutter’s plan contains minimal designs to protect the surrounding area. Stock at 23. Stock

contends that the transfer station is proposed to be located imniediately adjacent to three existing

grain bins arid a nearby a large existing propane tank

—

both of\vhich are know fire hazards.

Id.

Stock alleges that Sutter’s contingency plan for fires is inadequate as it essentially only requires

that calls be niade to nianagement and “911” in the event ~f an emergency.

Stock at 23, 24.

Stock 

further asserts that the contingency plan contains no strategy for evacuating

members ofthe public from the transfer station; contains no provisions for preventing the spread

of fires to the propane tank and grain bins; does not address the recycling building in which

reclaimed cardboard, among other items. are to be stored; does not identify fire-fighting

equipment other than a handful of fire extinguishers; does not identify smoke ahanns in any of

the buildings; and contains no provisions to notify the owner operator of a fire at night or on the

weekend when the facility is closed. Stock at 24.

Thus, argues Stock, Sutter has siniply not demonstrated it has done what is reasonably

feasible to minimize the danger to the surrounding area. Stock at 25. Sutter’s proposed transfer

station is a disaster waiting to happen. contends Stock. Stock at 27.

Criterion (viii)

Stock argues that Sutter’s own evidence shows that persons desi.ring to transfer waste to

one of the out-of-county landfills referenced by Sutter can economically use the existing

Shelbyville transfer station. and that the decision of the County Board on this criterion is,

accordingly, against the manifest of the evidence. Stock at 28.

Stock asserts that the County’s previous rejection of a proposalfor a transfer station in its

Plan is evidence that Sutter’s proposed facility is not consistent with the County’s Plan. Stock

Reply at 13.

EFFINGHAM COUNTY’S

ARGUMENTS

Criteria

Effingham County asserts that the County Board’s decisions on the statutory criteria were

not against the manifest weight of the evidence. Effingham County asserts that the burden of

establishing the decision was in error is squarely on the petitioners, and that both sides presented

credible evidence on each criteria. County Board at 4. The County contends that substantial

discussion was had and consideration given to all ofthe evidence put forth by Landfill 33 and

Sutter. County Board at 5.

As to criterion (iii). the County Board contends that testiniony presented by James Bitzer,

a real estate appraiser, indicated there would be zero or niinimal impact to the surrounding

properties if the County Board approved the proposal. Cour~rvBoard at 6.

Fundamental Fairness

The County Board disputes that the proceedings were not conducted in a fundamentally

fair manner.

A-279

18

Transcript Availability

The County Board asserts that Duane Stock admitted that he did not request a transcript

of the underlying hearing between the hearing date and the September 16, 2002 County Board

meeting. County Board at 7. He also admitted, the County Board contends, that lie made no

effort between October 2, 2002 and November 25, 2002, to contact anyone in Effingham County

to get a copy of the transcript. County Board at 8. The County Board argues that Stock was not

prejudiced in any way by the transcript’s unavailability.

Id.

Undisclosed Relationships

The County Board next addresses the familial relationship between Duane Stock and

Carolyn 

\Vihlenburg. Nowhere, contends the County Board, is it established that the relationship

adversely affected Stock. County Board at 8. The County Board highlights testimony where

Duane Stock stated that Wihlenburg was a nice person. that they got along very well, and that he

never asked her to step aside or recuse herself.

Id.

The County Board concludes that the mere

suggestion that the relationship created unfairness is insufficient to support petitioners’ claim of

bias. County Board at 9.

Recycling Issue

The County asserts that the county board chairman properly focused the issues to the

County Board, and 

that the recycling issue was not raised during the discussion on the criteria at

the September 16 meeting. 

County Board at 10. The County Board concludes that the

petitioners’ have failed to establish that any County Board members’ vote was affected or

changed based on the recycling issue.

Id.

SUTTER’S ARGUMENTS

Fundamental Fairness

Sutter argues that any fundamental fairness arguments raised by Landfill 33 should be

barred because Landfill 33 did riot identify any specific facts demonstrating fundamental

unfairness in the petition or in response to Sutter’s interrogatories. Sutter at

SLitter asserts that

it was significantly prejudiced by these non-disclosures in that it would have been able to gather

evidence in rebuttal or undertake additional discovery had the allegations been properly

disclosed. Sutter at 5, 6.

Transcript Availability

Sutter argues that only where thie failure to make a transcript available results in prejudice

to a party is the absence of the transcript fundanientally unfair. Sutter at 6. Sutter asserts that

Stock did riot attempt to obtain a copy of the transcript until October 2, 2002

—

16 days after the

County Board’s decision. Sutter at 7. Sutter further asserts that Stock niade no 

further inquiries

between October 2, 2002 and November 25, 2002, and that these facts clearly demonstrate that

Stock suffered no prejudice by not having a copy ofthe transcript.

Id.

A-280

Undisclosed Relationships

Sutter contends that nothing other than the existence of the Stock

—

Willenburg

relationship is alleged, and that this is clearly insufficient to sustain a claim of bias. Sutter at 9.

Bias, states Sutter. 

may only be shown if a disinterested observer might conclude that the

administrative official had in sonic nieasure adjudged the facts as well as the law in advance of

hearing it. Sutter at 10. Nonetheless, argues Sutter, Stock has waived this argument by failing to

raise it at the County Board hearing.

Recycling Issue

Once again. Sutter argues that bias can only be shown where a decision maker has

prejudged the facts or law. SLitter at 12. Sutter contends this showing has not been made. The

comment by County Board Member Voelker. asserts Sutter, does not indicate that Voelker was

acting out of fear of losing Sutter’s recycling services, but is merely a statement that recycling is

important to Effinghani County. Sutter at 13.

Sutter contends that the statement by Tracy Sutter that Stitter could not economically

continue recycling if siting were not approved is not a threat, but a simple statement ofeconomic

reality. Sutter at 13. Sutter discounts the statements of Ms. Deters at the Board hearing as she is

not a decision-niaker and does not even 

live in Effingham County.

Id.

Most iniportant, asserts

Sutter, is the recognition of the County Board that recycling issues could not be a part ofthe

deliberations on the siting issue before it. Sutter at 14.

Finally, SLitter argues that the recycling issue has been waiver because neither Stock nor

Landfill 33 objected 

when the issue was brought up at the underlying hearing. Sutter at

15.

Site Visits

Sutter asserts that during the pendency of the application neither the County Board nor

the waste cornniittee visited the proposed transfer facility. S utter reply at 7. S utter contends

there is no evidence in the record that any visit occurred, and. that the only reference to a site tour

is a notation in the County Board minutes that a proposed site visit had been scheduled.

Id.

Sutter does acknowledge that members of the waste committee visited the site of the proposed

transfer station prior to the application being filed. However. Sutter asserts that the visit was to

the recycling operation, is not prohibited by precedent and has not prejudiced the petitioners.

Sutter reply at 7, 8.

Criteria

Criterion (i)

Sutter addressed the need and the solid waste plan together. Sutter contends that in

analyzing the needs issue, Stitter reviewed Agency documents including reniaininig capacities of

area disposal facilities as well as the Effmngham County waste disposal plan. Sumter at 18. Sutter

argues that neither the Act nor case law suggests that the riced be determined by application ofa

A-281

standard of life expectancy of existing disposal facilities because such a standard 

would be

arbitrary and inaccurate. Sutter at 19. Specifically, Sutter notes that Hearing Exhibit 4 reflects

that Landfill 

33’s life expectancy was 25 years in 1995 but that Landfill 33 itself reported to the

County Board in 1999 that it had hess than ten years of expected life. 

Id.

Sutter asserts that the ne.ed criterion was clearly met by evidence and testimony ofthe

rapidly diniinishing capacity of Effingham County area landfills and the economic viability of

the proposed \vaste transfer station. Sutter Reply at 11-12. Sutter contends that previously stated

life expectancies have historically expired far quicker than anticipated. Sutter at 19.

Criterion (ii)

Sutter asserts that it is not required to guarantee a certain level of protection, but must

minimize potential problems. Sutter at 2 1. Sutter argues that the County Board determination of

this issue niust be substantially guided by the evidence and testimony of the experts in this case.

Sutter at 21. Sutter contends that Landfill 33’s witnesses only testified to general issues of

possible concerns, but that these concerns were not substantiated by any evidence and cannot be

given significant 

weight

the Board. Sutter at 2 1.

Sutter acknowledges that it did not know the thickness of the floor, but asserts that since

the time of the hearing its engineers have taken core samples showing the floor is 8.5 inches

thick. Sutter at 22. These samples were attached as attachment 4 of Sutter public comment.

Sutter asserts that the sampling also revealed that a moisture barrier currently exists under the

concrete floor which will prevent water migration into the sub grade, and that the slope of the

floor is towards the east which is where the transfer pit and sump will be located. Sutter at 22.

Criterion (iii)

Sutter asserts that the only evidence on this point shows the proposed transfer station will

have no impact on incompatibility issues. Sutter at 23. Sutter asserts that testimony by Mr.

Bitzer revealed that the proposed facility would not have an adverse impact on property values in

the area nor would it be incompatible with the area.

Id.

Criterion (v)

Srntter asserts that Mr. Kimmie, a professional engineer, testified that because

combustible refuse would not be stored on site, the risk of fire is decreased. Sutter at 23. Sutter

contends that the fire extinguishers as well as a contingency plan”âre in place to address an

emergency situations. Sutter at 24. To minimize environmental inipacts, Sutter asserts that

leachate will be collected arid stored on site in a 1,000 gallon concrete containnient structure that

will be periodically shipped off site for disposal.

Id.

S utter asserts that Mr. Kimmle testified that these nieasures are conipletelv in accordance

with industry standards. Stitter at 24. Sutter states that typical trucks, including all that it owns,

have no height problem raising beds to dump the waste in the proposed transfer station, and that

whenever any truck enters the building to unload waste, a SLitter employee will be there to assist.

A-282

Sutter

at 24. Sutter contends that 

safeguards will be in place to minimize the chance ofany

contact with the building structure in the infrequent situations where a larger truck might be

present.

Id.

Criterion (yiiil

Sutter contends that the Plan supports both in and out ofcounty disposal. Consistent with

the Plan, asserts Sutter, and in recognition ofrapidly increasing waste needs of the county, the

County Board ap~rovedLandfill 33’s request for an expansion of its landfill some five to ten

years earlier than anticipated. Sutter at 25. Sutter asserts that given the increased need of solid

waste facilities and the greater pace at \vhichi landfill space is decreasing, out ofcounty disposal

options, as provided in the Plan. niust also be put in place.

Id.

Sutter asserts that such out of

county disposal “as coniteniplated and recognized in the Plan.

Id.

Sutter directs attention to table 15 of the Plan where the county adopted alternatives to

consider. Sutter argues that consistent with the County Board recognizing the need is greater

than originally identified in the 1995 or 1999 readoption of the 1995 Plan, the County Board can

and should move forward with Alternative C which provides in the five to ten year period

support for a new transfer station. Sutter at 19-20.

Sutter contends that the County recognized it might have to be more aggressive and that

is why Alternative C was set forth in the table. Sutter at 20.

DISCUSSION

The Board will now assesses the merits of(l) Landfill 33’s jurisdictional argument; (2)

the petitioners’ fundamental unfairness arguments; arid (3) the petitioners’ contentions that the

County Board’s determination that Sutter satisfied Section 39.2 of the Act is against the manifest

weight of the evidence.

Jurisdiction

Landfill 33 asserts that Sutter did not coniiply with mandatory notice requirements in that

it did not assure that the notice was timely delivered to all members ofthe General Assembly

from the district in ~vhiichthe proposes site is located. Section 39.2(d) ofthe Act requires that no

later than 14 days prior to hearing, notice shall be published and delivered by certified mail to all

menibers of the General Assembly from the district in which the proposed site is located. 415

ILCS 5/39.2(d) (2002).

Senator Noland did not receive notice ofthe hearing by certified mail until August 1,

2002. btnt did receive notice by personal service on July 31, 2002- 14 days prior to the hearing.

C352.

The notice requirements of Section 39.2(b) are jurisdictional prerequisites. which must be

followed to vest the City with the power to hear a landfill prdposal.

See

Kane County Defenders,

Inc. v. PCB. 139 Ill. App. 3d 588,

593,

487 N.E.2d 743, 746 (2nd Dist. 1985). The Board finds

A-283

that the notice requirements were met in this case. It is undisputed that Senator Noland did

receive actual notice of the hearing 14 days prior to that hearing. The Board cannot find any

substantive difference between personal service and service by certified mail. The use of

personal service still provides a permanent record for the sending and receiving of notices.

Accordingly, the Board finds that sufficient notice was provided to Senator Noland.

Fundamental Fairness

In an administrative hearing, due process is satisfied by procedur~sthat are suitable for

the nature of the determination to be niade and that conform to the fundamental principles of

justice. Waste Manacement of Illinois. Inc. v. PCB, 175 III. App. 3d 1023. 1036. 530 N.E.2d

682, 693 t2nd Dist. 1988). In reviewing a Section 39.2 decision on site approval, the Board must

consider the fundamental fairness ofthe procedures trsed by the County Board in reaching its

decision. 415 ILCS 5/40.1(a) (2002).

Availability of Hearing Transcript

Stock contends that it was prejudiced because its registered agent, Duane Stock, was

unable to obtain a copy of the hearing transcript from the County Board on October 2, 2002-.

Stock asserts it was prejudiced because its arguments in the petition for review had to be based

solely on the siting application and Duane Stock’s attendance at the hearing.

The Board has addressed the issue of availability of the transcript before the local siting

authority on a

number 

of occasions.

See

Sierra Club v. City ofWood River, PCB 95-174 (Oct.

5, 1995): Spill v. City ofMadison, PCB 96-91 (Mar. 21, 1996); American Bottom Conservancy

v. Villaee of Fairniont City, PCB 00-200 (Oct. 19, 2000). in City of Wood River, the Board held

that although Section 3 9.2(c) of the Act requires that the local hearing transcript hearing be made

available to the public, unavailability of the transcript will render the siting proceedings

fundamentally unfair only ifsuch unavailability prejudiced petitioners. In City of Wood River,

the Board found that even if the transcript was unavailable, it could not find that this error had

made the proceeding fundamentally unfair, since the petitioner’s failed to demonstrate prejudice.

In both ~j2jjjand American Bottom, the Board found that the proceedings were

fundamentally un fair because the petitioners were prejudiced as a result of the unavailability of

the transcript. In

~ffl,

thie Board found petitioners were prejudiced because they were unable to

file public comments. In ,Anierican Bottom, the Board found petitioners timely took the

appropriate steps to review the transcript, but were not provided the transcript until after the

close of the public comment period, and were therefore preludiced in their ability to file public

coments

American Bottom, PCB 00-200, slip op. at 44.

The Board finds that Stock has not demonstrated prejudice due to the unavailability ofthe

transcript. Stock did not attempt to obtain a copy of the transcript until October 2, 2002

—

a full

16 days after the County Board’s decision, arid well after the close of the public comniient period

on Septeniber 13, 2002. Tr.. at 44, 47. Stock did timely file a public comment after the County

Board hearing. C415-C416. The Board is not convinced that Stock was prejudiced in the filing

ofhis petition for review. Stock’s petition was accepted by the Board and was effective in

A-284

preserving Stock’s right to appeal the County’s decision. Accordingly, the Board finds the

County’s failure to provide access to the transcript did not render the proceeding fundamentally

unfair.

Recycling Issu-e

Petitioners both contend they were deprived of an opportunity to address a recycling

issue that was pivotal to the County Board’s decision, and were prejudiced as a result.

Public officials should be considered to act without bias. E & E Hauhina. Inc. v. PCB,

107 Ill.2d 33, 42. 481 N.E.2d 664, 668 (1985). Furthermore, the appellate court has stated that

where a municipal governnienit “operates in an adjudicatory capacity, bias or prejudice may only

be shown if a disinterested observer might conclude that the administrative body, or its niembers,

had in sonic measure adjudged the facts as well as the la\v ofthe case in advance ofhearing it.”

Concerned Adioinina Owners, 288 Ill. App. 3d at 573, 680 N.E.2d at 816.

The petitioners have not shown that the County Board, or members ofthe County Board,

prejudged the facts or law in this instance. The record is clear that throughout the proceeding

both the County Board chairman arid Effinghani County State’s Attorney Deters informed the

County Board that the decision about the transfer station must be based on the statrrtony criteria

and not the recycling issue.

See

C128. C13l, C290. The comment by County Board member

Voelker does not lead a disinterested observer to conclude the prejudging of facts or law in this

case, nor is it sufficient to overcome the presumption that public officials should be considered to

act without bias. The Board finds that the testimony concerning the recycling center did not

result in a fundamental unfair proceeding.

Undisclosed Relationships

Stock asserts two undisclosed relationships have rendered the proceedings before the

County Board fundamentally unfair. 

The first is the first cousin relationship between Duane

Stock and County Board Member Carolyn Willenburg. The second involves the mother-son

relationship of State’s Attorney Ed Deters, who provided legal counsel to the County Board, and

Nancy Deters, an outspoken advocate for the recycling center and the transfer station.

SLitter has argued that allegation concerning the impropriety ofthe relationship between

Duane Stock and Carolyn Willenburg was waived because Stock never raised it at the County

Board hearing. The Board agrees. The Illinois Supreme Court has held that a claim of

disqualifying bias or partiality on the part of an administrative agency must be asserted promptly

after knowledge ofthe alleged disqualificationi. E&E Hamnhing. Inc. v. PCB. 107 Ill.2d 33, 89 Ill.

Dec. 821 (l9S5). Duane Stock participated in the underlying hearing and filed a public

coninienit. No indication is found in the record that lie raised the relationship issue prior to the

filing of his petition for review filed before the Board. Fundamental fairness issues stemming

from the Duane Stock

—

Carolyn \Villenburg relationship are, therefore, waived.

Stock asserts the Ed Deters-Nancy Deters relationship was not discovered until the

hearing before the Board on December 19, 2002, and has not been waived. The Board agrees.

A-285

Once again, 

in considering this relationship, the Board niust decide whether a disinterested

observer might conchmnde that the County Board, or its members, had in some measure adjudged

the facts as well as the law of the case in advance of hearing it.

The Board finds that no bias resulted froni the non-disclosure ofthe Deters’ relationship.

As referenced above, the standard for bias focuses on whether a

decision-makes”

has prejudged

facts or law.

See

E&E Hauhinc, eniphasis added. Neither ofthe Deters was a decisionmaker in

this matter. Nancy Deters attended the hearing and provided pLnbic comment. Ed Deters

represented the County in this niatter. bLrt was riot shown to be a decision-maker. He did not

have a vote and or recommend any findings. Accordingly, the fact that his relationship with

Nancy Deters was mrndisclosed did not render the underlying proceedings fundamentally unfair.

Site Visits

The petitioners contend that

expa/’te

contacts occurred between the applicant and the

County 

Board thereby biasing the County Board and resulting in its decision to approve local

siting even though the criteria had not been met. Landfill 33 asserts that the County Board

conducted a publicly unannounced visit to the transfer site on July 3 1, 2002. Sutter disputes this

assertion stating that

during 

the pendency of the application neither the County Board nor the

waste committee visited the proposed transfer facility. Sutter Reply at 7.

Sutter contends there is no evidence in the record that the visit occurred. and that the only

reference to a site tour is a notation in the County Board minutes that a proposed site visit had

been scheduled. Sutter does acknowledge that members ofthe waste committee visited the site

ofthe proposed transfer station prior to the application being filed. However, Sutter asserts that

the visit was to the recycling operation, is not prohibited by precedent and has not prejudiced the

petitioners.

Expai’te

contacts between the local governing body and the applicant in the form of

expense-paid tours of model facilities have been held to be fundamentally unfair. Southwest

Energy Corp. v. PCB, 

275 Ill. App. 3d 84, 92,

655

N.E.2d 304, 310 (4th Dist. 1995). In that

case, opponents to the incinerator were not invited on the tour. The appellate court indicated that

it encouraged the touring of existing facilities, but that fundamental fairness requires that

representatives of all parties to the siting proceeding be given an opportunity to accompany the

local governing body when it takes the tour. Southwest Energy, 275 111. App. 3d at 94, 655

N.E.2d at 310.

Ifa site visit did occur on July 3 1, 2002, it woLnld have resulted in a ftnnidamentally unfair

situation. However, the record does not contain sufficient evidence that any trip occurred. The

only testimony on the matter is that of Tracy Sutter’ during Landfill 33’s offer of proofat the

Board hearing. He did riot recall any trip other than the visit ofthe waste committee prior to the

filing of the application. Tr. at 73-74. The petitioners have not met their burden in showing that

a visit took place on July 3 1, 2002.

As noted, a visit by the County Board’s waste committee to Sutter’s site did occur, but,

the record clearly reveals the visit pre-dated the filing ofthe application. Consequently, the

A-286

Board finds that there is insufficient evidence to find that a 

site visit occurred on July 31, 2002,

and the pre-apphication visit of April 19, 2002, did not result in an unfair proceeding.

Amendment of.Apphication

Landfill 33 asserts that at the end of the public comment period after the hearing. Sutter

submitted a public comment that for the first time contended that the proposed transfer station

was necessary becamnse Landfill 33 niay have insufficient capacity. Landfill 33 considers this an

improper amendment to Sutter”s application. Sutter did not respond to this argument.

The Board finds that Sutter’s public coniment did not result in an amendment to Sutter’s

petition. The public comment in question addresses each of the criteria.

See

R. at C368-387. In

addressing die first criterion, Sutter references various reported capacities ofLandfill 33.

However, a review ofthe record reveals that the coniinient does nothing more than expand on

information presented in the application and at the hearing. As the public comment does not

seek to amend the application, Landfill 33’s argument is moot.

Siting Criteria

A party seeking siting approval for a pollution control facility niust submit sufficient

details ofthe proposed facility to nieet each of the nine statutory criteria. 415 ILCS 5/39.2(a)

(2002). Petitioners contend that SLitter failed to nieet criteria (i), (ii), (iii), (v), (vi), and (viii).

The Board cannot reweigh the evidence. The Board may only reverse the County Board

decision on the criteria if the decision was against the nianifest weight of the evidence. Waste

Management of Illinois. Inc. v. PCB (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592. A decision is

against the 

manifest weight of the evidence if the opposite result is clearly evident,

plain, or

indisputable from a review ofthe evidence. Harris v. Day. 115111. App. 3d 762, 451 N.E.2d 262.

Merely because the Board could reach a different conclusion, is not sufficient to warrant

reversal. City of Rockford v. PCB and Frank’s Industrial Waste, (2nd Dist. 1984) 125 Ill. App.

3d 384, 465 N.E.2d 996.

Criterion (i)

Section 39.2(a)(i) of the Act provides that local siting approval shall only be granted if

the facility is necessary to accommodate the waste needs for the area it is intended to serve. The

applicant is not required to show absolute necessity in order to satisfy criterion (i). Fairview

Area Citizens 198111. App. 3d at 551.

citing

Tate v. PCB. I SS Ill. App. 3d 994, 544 N.E.2d 1176

(4th Dist. l9S9): Chutts v. Beaslev, 185 Ill. App. 3d 543, 541 N.E.2d 844 (5th Dist. 19S9). The

Third District Appellate Court has construed “necessary” as a degree of requirement or

essentiality, and found that a landfill niust be shown to be reasonably required by the waste

needs ofthe area intended to be served, taking into consideration the waste production of the

area and the waste disposal capability, along with any other relevant factors. Waste

Mananenient. Inc.. v. PCB, 122 Ill. App. 3d 639, 644; 461 N.E.2d 542 (3rd Dist. 1984).

A-287

After careful review of the record, the Board finds that the County Board’s finding of

need for Sutter’s proposed transfer station is not against the manifest weight ofthe evidence..

Although Sutter acknowledged that sufficient capacity to acconimnodate the waste needs ofthe

service area consisting ofthe 50-mile radius around the proposed transfer station existed. the

need criterion was met by evidence and testiniony ofthe rapidly diminishing capacity of

Effingham

County 

area landfills and the econoniic viability of the proposed waste transfer

station.

The applicant is not required to show absolute necessity in order to satisfy criterion (i).

Sutter reviewed Agency documents including remaining capacities of area disposal facilities as

well as the Effinghani County waste disposal plan. Sutter’s expert Mr. Kimmle testified that to

economically access out-of-county landfills, a waste transfer station is necessary. R. at C 143.

The Board is instructed to considering the waste production ofthe area along with any other

relevant factors.

See

Waste Management. Inc.. v. PCB, 122 111. App.3d at 644. Sutter argues

that the expected life of landfills in general and Landfill 33 in particular historically expire

quicker than anticipated, arid that based on Landfill 33’s solid waste landfill capacity

certification reports of 2001 and 2002, niiay only have ten years ofexpected life left.

The Board finds enough niierit in Stntter’s application and testiniony so that a result

opposite to the County Board’s decision is not dearly evident, plain, or indisputable. Thus, the

County Board’s decision that Sutter met its burden of proof on the need criterion is not against

the manifest 

weight ofthe evidence.

Criterion (ii)

Criterion (ii) of Section 39.2 of the Act requires the applicant to show that “the facility is

so designed, located and proposed to be operated that the public health, safety and welfare will

be protected.” 415 ILCS 5/39.2(a)(ii) (2002). After reviewing the record, the Board finds that

the County Board’s conclusion that the design of the transfer station is adequate to assure the

lack of movement of contaminants is not against the nianifest weight ofthe evidence.

The petitioners assert that Sutter failed to demonstrate that the public health, safety and

welfare will be protected. Both petitioners argue that the transfer station will be within 1,000

feet ofa dwelling. The Board disagrees. The record reveals that a house is located on the

proposed site for the transfer facility. R. at C 147. However, Sutter’s expert Mr. Kimmle

testified that the house is not inhabited and will be used as an office for the waste transfer

facility.

Ic!.

Mr. Kimnile also testified that proposed facility has been located a minimum of

1,000 feet from the nearest property zoned for primary residential use.

Id.

The petitioners also

argue that a house is located across the street from the proposed transfer station. Landfill 33 at

14, Stock at 19. However, the underlying record does riot contain any evidence concerning this

dwelling. The issue was not raised until the hearing before the Board, and is. accordingly, not

properly before the Board in this proceeding.

The petitioners raise a number of issues concerning the design of the proposed transfer

facility. For example, the petitioners contend that nothing is planned to prevent liquid wastes

and leachate from running off the concrete floor and onto the ground surrounding the building,

A-288

that older trucks used by other haulers will be unable to open their tailgates fully when unloading

in the building because ofinadequate clearance, and that roll-offs will not be able to raise their

beds to the full height as designed if unloading in the building.

Sutter presented testimony concerning the potential for leac-hate generation at the facility.

Mr. Kimmie testified that the potential for leachate is minimal because the operations are

indoors. R. at C 150. But, he stated that any leachate generated will be collected and directed to

a local sump that will then pump the water to a nearby leachate storage tank contained within a

concrete containment dike prior to disposal off-site.

Id..

Mr. Kimmle testified that the water

resulting from washing the floor down will b~econtained within the building (in the lower

elevation floor) and directed into the collection system. R. at C 153-54.

Sutter also presented testimony regarding concerns about inadequate clearance in the

proposed transfer station. Tracy S Litter testified that trucks typical

to the industry today do not

have problems opening their tailgates fully. R. at C263-64. Although he acknowledged that

issues do exist with the maximum available height. for dumping roll-offs, he testified that on-site

personal will always be present to assist drivers in this regard. R. at C265.

The Board finds that that there is evidence in the record to support the County Board’s

decision on criterion (ii), and, therefore, the decision is not against the manifest weight ofthe

evidence.

Criterion (iii~

Criterion (iii) requires the applicant to minimize the incompatibility of ti-ic facility on the

surrounding area and to minimize the effect on property values. This criterion requires an

applicant to demonstrate more than minimal efforts to reduce the landfill’s incompatibility. File,

219 Ill. App. 3d at 907; Waste Management, 123 Ill. App. 3d at 1089. An applicant must

demonstrate that it has done or will do what is reasonably feasible to minimize incompatibility.

Waste Management, 123 Ill. App. 3d at 1090. However, an applicant cannot establish

compatibility based upon a pre-existing facility, and the compatibility of an expansion must be

considered as a new and separate regional pollution control facility. Waste Manacement. 123 Ill.

App. 3dat 1088.

Stock argues that S Litter failed to provide any evidence as to how the facility will

minimize incompatibility with the character of the area and that the decision of the County Board

is. therefore. against the manifest weight of the evidence. At the hearing before the County

Board, Stitter presented testimony by licensed real estate broker and appraiser James R. Bitzer

that the proposed expansion met the requirements of criterion (iii) in that it minimized the

incompatibility with the character of the surrounding area and minimized the effect on the value

of the surrounding property. R. at C 182. Bitzer testified that the character of the surrounding

land is predominantly level agricultural- cropland and that no significant expansion or

urbanization is going on in the area. R. at Cl 81.

The Board finds that the County Board decision on criterion (iii) was not against the

manifest weight of the evidence. Sufficient evidence exists on the record to support the County

A-289

Board’s decision that no impact will result from the siting of the proposed transfer station.

An

opposite result is not clearly evident or indisputable from a review of the evidence. The Board,

thus,

concludes that the City’s decision on criterion (iii) is not -against the manifest weight of the

evidence.

Criterion (v)

Criterion (v) of Section 39.2 of the Act requires that the applications “plan ofoperations

for

the facility is designed to mininiize the danger to the surrounding area from fire, spills, or

other operations accidents.” 415 ILCS 5/39.2(a) (2002).

Both  

petitioners argue that the County Board’s decision is against 

the manifest weight

of

the evidence on this criterion. Landfill 33 contends the wooden 

interior and the

rural location of

the

proposed transfer station pose a greater risk of fire, and that the door and ceiling heights in

the proposed station pose a hazard for roll-off containers. Stock contends that the transfer station

proposed to be located immediately adjacent to three existing grain bins and a nearby a large

existing propane tank

—

both of which are known fire hazards. Stock fLrrther raises

a number of

shortcomings in the contingency 

plan it contends render the County Board decision on this

criterion against he manifest weight of the evidence.

Sutter

asserts that Mr. Kimmle testified that the measures proposed to satisfy the

requirements ofthis criterion are completely in accordance with industry standards. SLitter

contends that the fire extinguishers as well as a contingency plan is in place to address an

emergency situations, ar-id that environmental impacts will be minimized in part due to the

leachate

will be collection procedLires.

Much of the issues raised in regards to this criterion were also discussed during the

Board’s analysis of criterion (ii). The Board finds that the County Board’s decision that Sutter

satisfied the requirements of this criterion are not against the manifest weight of the evidence.

the siting hearing, Mr. Kimmle testified that the plan ofoperations is designed to minimize

the danger to the surrounding area from-fire, spill, or other operational concerns. R. at C 160. He

testified that the primary concerns in addressing this criterion for solid waste transfer facilities

are the storage of petroleum products and refuse on site, and that there is not into to store either

this facility. R. at C 158. Mr. Kimmle further testified about the leachate collection

provisions, and that the contour of the Site ~5 SLICh that potential accidental spill during the

transfer process can be contained or-i site and appropriately cleaned up. R. at C 159.

Stock focuses niuch of its argument on SLitter’s contingency plan. Howe;er, the

contingency

plan is not the sole issue to be considered. In its application, arid a: h.earing, Sutter

provides detailed information about the plan ofoperations. The majority of this information is

submitted under criterion (ii), and, in addition to the contingency plan, includes provisions for

site

operation. methods of transfer or disposal ofwaste generated at the site. information on the

leachate containment system. and litter, vector and odor control. R. atCl9-25.

Sutter has presented aplan of operations as required by criterion (v). Ample evidence

- --

exists in the record to support the County Board’s decision that Sutter satisfied criterion (v). The

A-290

Board finds that the County Board decision is not against the manifest weight of the evidence.

Criterion

(vi)

Landfill 33 raised concerns about the

Site

size, the close proximity of the scale house to

- -

the road, and the tight turning radiuses into and out of the proposed transfer station. Landfill 33

claims that Sutter did not even provide a traffic count of the anticipated number of vehicles it

would receive from its recycling business to coniipare with traffic issues relating to the transfer

station, and did not address the impact of facility traffic during the road restriction-i month-is

(January through April) for the i~oadwayapproaching the facility.

Neither of the respondents responded to Landfill 33’s assertion that ti’ie County Board’s

decision on this criterion was against the nianifest weight ofthe evidence. Landfill 33 did not

seek to review this criterion in their amended petition filed with the Board on October 21, 2002.

Section 107.208 of the Board’s procedural rules provides the petition content

requirements for a petition to review a pollution control facility siting decision.

See

35 Ill. Adm.

Code

107.208. Such a petition must include,

inter alia,

a specification of the grounds for the

appeal, inchLlding any manner in which the decision as to particular criteria is against the

manifest weight of the evidence. 35 111. Adm. Code 107.208(c).

noted, Landfill 33 does not allege that the County Board decision on criterion (vi) is

against the manifest weight of the evidence in its amended petition. Landfill 33 never attempted

to amend its petition, and did not request the Board to review criterion (vi) until the filing of its

post-hearing brief. No attempt to challenge criterion (vi) is contained in any hearing officer

order in this matter.

The Board will not entertain argument on this criterion. Landfill 33 did not meet the

requirements of Section 107.208(c) that clearly provide that the petition must specify any manner

in which the decision as to particular criteria is against the manifest weight of’ the evidence.

Landfill 33 had the opportunity to amend the petition at any point before the hearing, and even

during the hearing itself’, but never attempted to do so. Landfill 33’s late attempt to challenge

criterion (vi) before the Board resulted in prejudice to -the respondents, who did not address this

issue

through the pendency ofthe case.

Criterion (viiF~

Criterion (viii) requires the applicant to show that t~eproposed expansion is consistent

with the County Solid Waste Management Plan. To satist~.this criterion, the local body must

apply the County Solid Waste Management Plan to the proposed facility ar-id make a

determination whether ftie application is drafted in such a way as to be consistent with the plan.

City of’Geneva v. Waste Manacement of Illinois. Inc.. PCB 94-58, (July 21, 1994)

In reviewing the evidence, the Board finds that the County Board’s decision regarding

this criterion is riot against the manifest weight of the evidence. The County Board presented

extensive evidence and expert testimony finding the proposed transfer station is consistent with

A-291

the Effingham County Plan. Mr. Kimmle stated that the proposed station is consistent with the

County’s intention to avail itself to both in-county and oLit-of-county landfills. Landfill 33 did

present

expert testimony in opposition that although the Plan considered transfer stations as an

option in a preliminary step of the planning process, the Plan rejected the used of transfer

stations.

The County Board considered the testimony froni both experts on this issue. The Plan

does contemplate the use of an in-county transfer station. The County Board’s decision cannot

found to be against the manifest weight of the evidence merely because it valued the

testimony ofone expert over another. The Board may not re-weigh the evidence. The Board

therefore,

upholds the decision and finds that the County Board decision was not against the

manifest weight of the evidence on criterion (viii).

CONCLUSION

After our careful review ofthe record, the Board concludes that the County Board had

jurisdiction over Sutter’s application for a new solid waste transfer station, and that the

procedures the County Board followed to address the merits of the application were

fundamentally fair. Additionally, the Board finds that the County Board’s determination Sutter

met the requirements of criteria (i), (ii), (iii), (v), and (viii) of Section 39.2 ofthe Act was not

against the manifest weight of the evidence.

This opinion and order constitutes the Board’s findings of facts and conclusions oflaw.

ORDER

The decision of the Effingham County Board approving Sutter’s application to site a new

solid waste transfer station is affirmed.

IT IS SO ORDERED,

Section

4 1(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order.

415 ILCS 5/41(a) (2002);

see also 35

111. Adm. Code l01.300(d)(2). 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court. by statute, directly reviews administrative orders. 172 Ihl.2d R. 335. The

- --

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with tl~ieBoard within 35 days after tiie order is received. 35111. Adm. Code

l0l.520see also

35111. Adm. Code 10 1.902. 102.700, 102.702.

A-292

31

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

adopted the above opinion and order on February 20, 2003, by a vote of7-0.

---

ci’

‘•J

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

A-293

—h

_91i~—

The text of this order may be changed or

NO.

5-03—0099

eorreetod prior to the time for filing of

Petition for Rehearing or the disposi*i*fl ~f

THE

th~

same.

APPELLATE COURT OF ILLiNOIS

E. COSTi~

r~~K

IIPPELLME 

cotm~,5th

OtS~.

FIFTH DISTRICT

STOCK & COMPANY, LLC,

)

Petition for the Review 

)

Order ofthe Illinois

Petitioner,

)

Pollution Control Board.

)

Docket Nos. PCB 03-43 &

)

PCB 03-52 (Consolidated)

ILLINOIS POLLUTION CONTROL BOARD,)

EFFINGHAM COUNTY BOARD,

SUTTER

)

SANITATION SERVICES, and

LANDFILL

)

33, LTD.,

)

Respondents.

)

RULE 23 ORDER

On April 19, 2002, Sutter Sanitation Services, Inc. (Sutter), filed with the

Effingham

County Board an application for local siting approval for a solid waste transfer station to be

located in

Effingham County.

The proposed site forthe transferstation is three acres in rural

Effingham County that currently is used as a grain elevator. The area surrounding the site

is used as agricultural cropland. There

are

no occupied residences, buildings, or other

development in the

area.

Stock & Company, LLC (Stock),

owns

the cropland directly across

the road from the proposed transfer station site. Stock objected to the proposed transfer

station.

On August 14, 2002, pursuant toprovisions ofthe Environmental ProtectionAct (Act)

(415 ILCS

5/39,

39.2 (West 2002)), a public hearing was held on the application before the

Effingham

County

Board. Testimony was taken, including that ofseveral experts,

and

public

comments were accepted. Stock participated in the hearing and submittedpublic

comments.

On September 16, 2002, the Effingham

County

Board approved the application for the local

siting ofthe transfer station, findingthat Sutter haddemonstrated that its proposal met all the

criteria set

forth

in section 39.2(a) ofthe Act

(415

ILCS

5/39.2(a)

(West 2002)).

Stock appealed the

county

board’s decision to the Illinois Pollution Control Board,

arguing that the proceedings before the

county

board were fundamentally unfair

and

that the

county board’s findings that Sutter had satisfied the criteria ofsection 3 9.2(a) were contrary

to the manifest weight ofthe evidence. The Pollution Control Board upheld the decision of

the county board. Stock now brings this appeal before us, arguing that the Pollution Control

Board’s findings that Sutter had satisfied criteria (i), (ii),

and

(v)-of section 39.2(a) ofthe Act-

(415 ILCS

5/39.2(a)(i),

(a)(ii), (a)(v) (West 2002)) were contrary to the manifest weight of

the evidence and that the proceedings before the county board were fundamentally unfair

because the transcript of the hearing before the county board had not been timely made

available to Stock.

Section 39.2(a) of the Act provides that an applicant for local siting approval shall

submit to the county board sufficient details describing the proposed facility to demonstrate

compliance with the Act, and local siting approval shall be granted only if the proposed

facility meets certain criteria, including:

“(i) the facility is necessary to accommodate the waste needs ofthe area it is

intended to serve;

(ii) the facility is so designed, located,

and

proposed to be operated that the

public health, safety,

and

welfare will be protected;

* **

(v) the plan ofoperations for the facility is designed to minimize the danger

to the surrounding area from fire, spills, or other operational accidents.” 415 ILCS

5/39.2(a)(i),

(a)(ii), (a)(v) (West 2002).

On appeal, Stock argues that Sutter did not demonstrate that its proposed facility meets these

criteria and that the decision of the Pollution Control Board affirming the county board’s

finding that Sutter had demonstrated compliance with these criteria was contrary to the

manifest weight ofthe evidence.

On review, we are to determine whether the Pollution Control Board’s decision is

contrary to the manifest weight ofthe evidence.

Turlek v. Pollution Control

Board,

274 Ill.

App. 3d 244, 249

(1995).

In order for the board’s decision to be against the manifest weight

of the evidence, more is required than that a different conclusion may be reasonable; the

opposite conclusion must be clearly evident, plain, or indisputable.

Turiek,

274-Ill. App-. -3d-

at 249.

We will not set forth herein all the evidence presented to the county board

and

the

Pollution Control Board regarding the above criteria. The written opinion ofthe Pollution

Control Board is lengthy

and

detailed

and

adequately sets forth all the evidence relied upon

for its decision. Suffice itto say that Suffer presented several expert witnesses who testified

to facts demonstrating that the proposed facility is necessary to accommodate the waste

needs of the area it is intended to serve, that it is so designed, located, and proposed to be

operated that the public health, safety,

and

welfare will be protected,

and

that the plan of

operations for the facility is designed to minimize the danger to the surrounding area from

fire, spills, or other operational accidents. Although some witnesses testified to

the

contrary

on some of these criteria, it is up to the county board to determine the credibility of the

witnesses, to resolve conflicts in the evidence, and to weigh all the evidence presented.

ConcernedAdjoining

Owners v.

Pollution Control Board,

288 Ill. App. 3d

565, 576 (1997).

After carefully reviewing all the evidence presented to both the county board and the

Pollution Control Board, we cannot conclude that the decision of the Pollution Control

Board, which affirmed the local siting approval granted by the county board, is contrary to

the manifest weight ofthe evidence. A conclusion opposite to that reached by the Pollution

Control Board is not clearly evident, plain, or indisputable.

We turn now to Stock’s argument that the proceedings before the county board were

fundamentally unfair because the transcript ofthose proceedings was not provided to Stock

in a timely manner. Stock argues that the transcript ofthe

county

board proceedings was not

made available to Stock until after the deadline forthe appeal ofthe county board’s decision,

thus hampering Stock in its efforts to formulate the basis for its appeal ofthe county board’s

decision to the Pollution Control Board. Stock argues that as a result of the transcript not

being made available in a timely manner, Stock had to rely onits representative’s recollection

ofthe hearing in preparing its petition for review to the Pollution Control Board. Stock fails

to demonstrate, however, how it was prejudiced by this circumstance, especially in light of

the facts that its petition for review was subject to amendment after receipt ofthe transcript

and that Stock had the transcriptwell in advance ofthe hearing before the Pollution Control

Board.

The hearing before the county board was on August 14, 2002. The certification of

the court reporter indicates that the transcript ofthis hearing was prepared by September 2,

2002. The county board’s decision was rendered on September 16, 2002. Stock contacted

the Effingham county clerk on October 2, 2002, to request a copy ofthe transcript

and

was

told that the only copy was in the possession of Sutter’s attorney. Stock did not contact

Sutter’s attorney and request a copy ofthe transcript. Stock filed its petition for review with

the Pollution Control Board on October 21, 2002. On October 24, 2002, the transcript ofthe

hearing before the county board was filed with the county clerk. Stock finally reviewed the

transcript on November

25,

2002, when it went to the county clerk’s office. The hearing

before the Pollution Control Board was not held until December 19, 2002.

Stock raised this argument before the Pollution Control Board, which rejected it on

the basis that Stock had failed to demonstrate any prejudice as a result of the untimely

availability ofthe transcript. The board heldthat the unavailability ofa transcript will render

the proceedings fundamentally unfair only ifthat unavailability prejudiced the petitioner.

The Pollution Control Board was not convinced that Stock was prejudiced in the filing ofits

petition for review in that its petition had been accepted by the board and was effective in

preserving Stock’s right to appeal the county board’s decision. Accordingly, the Pollution

Control Board found that the county’s failure to provide access to the transcript at an earlier

date did not render the proceedings fundamentally unfair.

Initially, the parties dispute the appropriate standard for our review. Relying on

Land

Lakes Co. v. PollutionControl Board,

319111. App. 3d 41,48-49(2000), Stock arguesthat

the appropriate standard ofreview is

de novo

because, although the usual standard that is

applied to mixed questions of law and fact before administrative agencies is the “clearly

erroneous” standard, the rationale for applying that standard—to provide some deference to

the agency’s peculiar experience and expertise—does not apply to the question offundamental

fairness, a question with which the courts and not the Pollution Control Board have peculiar

experience

and

expertise. Suffer argues that the appropriate standard of review is whether

the agency’s decision is contrary to the manifest weight of the evidence, relying on

Daly v.

Pollution Control Board,

264 Ill. App. 3d 968, 971 (1994). The Pollution Control Board

argues

that the appropriate standard of review is whether the agency’s decision is clearly

erroneous, relying primarily on

City

ofBelvidere v. Illinois State LaborRelations Board,

181

Ill. 2d 191, 205 (1998). We find it unnecessary to resolve the question of the appropriate

standard ofreview because we find that, even under the least deferential

de novo

standard

ofreview, we affirm the decision ofthe Pollution Control Board.

All the parties agree that proceedings before the local siting authority, in this case the

county board, must be fundamentally fair to all the participants.

Land & Lakes Co. v.

Pollution Control Board,

319111. App, 3d41, 47 (2000). The parties also agree that the Act

requires that a copy of the transcript of the hearing before the county board be made

available to the participants and that a failure to provide that transcript may render the

proceeding fundamentally unfair.

Sierra Club v. City ofWood River,

Ill. Pollution Control

Bd. Op. 95-174 (October

1995).

The parties also seem to agree that a failure to provide

the

transcript

renders the proceeding fundamentally unfair

only where the petitioner can

demonstrateprejudice as a result. Sierra Club v. City ofWoodRiver,

Ill. Pollution Control

Bd. Op. 95-174 (October

1995).

The

parties disagree

on whether Stock has, in fact,

demonstrated prejudice as a result ofthe untimely availability ofthe transcript.

Whether we employ the

de novo

standard

ofreview, the “clearly erroneous” standard

ofreview, or the manifest-weight-of-the-evidence standardofreview, we conclude thatStock

has failed to demonstrate, or even specify,

any

prejudice as a result of the untimely

availability ofthe transcript. We note that even after Stock reviewed the transcript ofthe

county board hearing, it did not seek to amend its petition for review before the Pollution

Control Board. There is no indication in the record that Stock attempted to

and

was

precluded from raising any issue before the Pollution Control Board as a result ofthe tardy

availability of the transcript. Stock had reviewed the transcript well in advance of the

hearingbefore the Pollution Control Board and could have sought leave to amend its petition

for review. It did not. The transcript was available to Stock at the hearing before the

Pollution Control Board and could have been used to point out inconsistencies in the

testimony ofwitnesses or conflicts in the evidence. It was not. Stock has made only vague

allegations of prejudice but has failed to substantiate those claims with any evidence of

actual prejudice in drafting its petition for review to the Pollution Control Board or in

proceedings before that board.

In the absence ofa demonstration ofprejudice to Stock, we cannot conclude that the

proceedings before the county board were fundamentally unfair as a result of the tardy

availability ofthe transcript ofthose proceedings. See

Tate v. Pollution Control Board,

188

Ill. App. 3d 994, 1017 (1989) (in the absence of a demonstration ofprejudice, the failure to

make documents available is harmless error, and the proceedings are not fundamentally

unfair).

For the foregoing reasons, we affirm the decision of the Illinois Pollution Control

Board.

Affirmed.

WELCH, J., with GOLDENHERSH

and

HOPKINS, JJ., concurring.

-1-

Merriam-Webster Online

Page 1 of I

M-WCollogiate.com

M-WUnabridged.com

Britanntca.com

Multi-User Licenses

DOW~LO~PS

WORDOFTHEDAY

WORD

t~AMES  

I

WORD FORTHE

Wl$R

ONLINE STORE

Palm & Pock

Browse and downi

Merriam-Webster

e-books and game

Palm and Pocket P

and Mobile Phones

Merriam-Webf

Online Store

Handheld

Collegiate

Now you can take

Eleventh Edition w

anywhere as Franl

new Speaking Elec

Handheld

Fran kI n .com!

il~rthm..V~l:

Coilegiat

14&a~yJEr.~.e

Products

Premium Services

Advertising Info

PRE HUM SERVICES fY

Merriam-Webster Online Dictionary

MeTr~am-Webste

One

entry

found for establish.

Main Entry: es

tab lish

Pronunciation:

is- ‘ta-bush

Di-et~on;ar~

Thesaurw

Function:

transitive verb

Etymology: Middle English

establissen,

from Middle

French

establiss-,

stem of

establir,

from Latin

stabilire,

from

stabilis

-stable

1: to

institute (as a law) permanently by enactment or

agreement

obsolete :

SETTLE

3 a : to make 

firm

or stable b : to introduce and cause to

grow and

multiply

establish

grass on pasturelands

4 a : to bring into existence :

FOUND 

established

republic b : BRING ABOUT, EFFECT

established

friendly

relations

5 a : to put on a

firm

basis : SETUP

establish

his son in

business b : to put into a favorable position c : to gain

full

recognition or acceptance of the role 

established

her as a

star

6 : to make (a church) a national or state institution

7 :

to put beyond doubt: PROVE

established

my

ilmocence  

es

tab lish able 4~

/-sh&-b&1/

adjective

es

tab lish er 4)

/-sh&r/

noun

For More Information on “establish” go to Britannica.com

Get the Top 10 Search Results for “establish”

Pronunciation Symbols

Company Info

Privacy P

http://www.m-w.com/cgi-binldictionary?book=Dictionary&va=establish&x=14&y=1 2

7/30/04