2

In so holding, the Board reaches the following conclusions:

•

The Native American sites associated with Cahokia and eligible for the National Register

of Historic Places are among the relevant considerations in assessing whether North

Milam “is located so as to minimize incompatibility with the character of the surrounding

area” under Section 39.2(a)(iii) of the Act (415 ILCS 5/39.2(a)(iii) (2006)), as are the

wetlands subject to Section 404 the federal Clean Water Act (33 U.S.C. § 1344). The

City’s siting procedures were not, however, rendered fundamentally unfair by prohibiting

petitioners from cross-examining Waste Management’s “compatibility” witness about

matters beyond the scope of the witness’ direct examination, and allowing Waste

Management to present additional information on archaeological and wetland issues

through timely-submitted public comments.

•

The minutes of the City Council meeting documenting the vote to grant siting, coupled

with the City hearing officer’s written findings of fact and recommendation, constitute a

sufficient written siting decision within the meaning of Section 39.2(e) of the Act.

•

It was not against the manifest weight of the evidence for the City to determine, under

siting criterion (i) (415 ILCS 5/39.2(a)(i) (2006)), that North Milam is necessary to

accommodate the waste needs of the area it is intended to serve.

•

The Cahokia Mounds World Heritage Site and National Historic Landmark is among the

relevant considerations in assessing the “character of the surrounding area” in this case.

415 ILCS 5/39.2(a)(iii) (2006). The City’s decision on siting criterion (iii) (415 ILCS

5/39.2(a)(iii) (2006)), that North Milam is located so as to minimize incompatibility with

the character of the surrounding area, is not contrary to the manifest weight of the

evidence.

In this opinion, the Board first provides a brief introduction to third-party siting appeals

and this proceeding. That is followed by a discussion of procedural matters, including the

procedural history of this case and several offers of proof made at the Board hearing. The Board

then provides the statutory framework for pollution control facility siting under the Act. After

that, the Board sets forth the factual background of this case. Next, the Board turns to the

parties’ arguments and the Board’s rulings with respect to fundamental fairness. The Board then

discusses the parties’ arguments and the Board’s rulings regarding the siting criteria at issue.

INTRODUCTION

Before the Illinois Environmental Protection Agency (IEPA) can issue a permit to

develop or construct a new or expanding pollution control facility, the permit applicant must

obtain siting approval for the facility from the local government (

i.e.

, the county board if in an

unincorporated area or the governing body of the municipality if in an incorporated area) under

Section 39.2 of the Act.

See

415 ILCS 5/39.2 (2006). If the local government approves siting,

certain third parties may appeal the local government’s decision to the Board.

See

415 ILCS

5/40.1(b) (2006).

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3

Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (2006)) allows third parties to appeal a

local government’s decision granting approval to site a pollution control facility if the third

parties participated in the local government’s public hearing and are so located as to be affected

by the proposed facility. The petition for review must, among other things, specify the grounds

for appeal and be filed the petition within 35 days after the local government approves siting.

See

415 ILCS 5/40.1(b) (2006); 35 Ill. Adm. Code 107.208. Unless the Board determines that

the third party’s petition is “duplicative or frivolous,” the Board will hear the petition. 415 ILCS

5/40.1(b) (2006).

By order of March 15, 2007, the Board accepted this third-party appeal for hearing. This

appeal arises out of Waste Management’s September 22, 2006 siting application filed with the

City, requesting site location approval to expand the existing Milam RDF. The landfill

expansion, North Milam, would be located in the City of Madison, Madison County. WM Br. at

1; Pet. Br. at 1. The City approved the application on February 6, 2007, after holding two days

of public hearing on December 21 and 22, 2006. WM Br. at 1; Pet. Br. at 1. The City is a

municipal corporation, governed by an Aldermanic Board of seven members and a Mayor. City

Br. at 2.

Petitioners appeal the City’s decision on the grounds that the siting proceedings

conducted by the City were not fundamentally fair and that Waste Management failed to satisfy

two of the siting criteria of Section 39.2(a) of the Act. Petitioners assert that the City’s siting

procedures were fundamentally unfair because (1) Waste Management presented data concerning

prehistoric Native American sites and wetlands not at the public hearing but rather in public

comment, and petitioners were not permitted to cross-examine Waste Management’s

“compatibility” witness on those subjects; and (2) the City did not provide a written decision

specifying the reasons for granting the siting approval. Pet. Br. at 10-13; WM Br. at 2.

Petitioners also contend that the City’s findings on whether North Milam is necessary to

accommodate waste needs (criterion (i)), and whether the facility is so located as to minimize

incompatibility with the character of the surrounding area (criterion (iii)), were against the

manifest weight of the evidence. Pet. Br. at 6, 9; WM Br. at 1.

Petitioners have the burden of proof on appeal.

See

415 ILCS 5/40.1(b) (2006).

Hearings before the Board are based exclusively on the record before the City, except that

evidence may be introduced on the fundamental fairness of the City’s siting procedures where

the evidence is necessarily outside of the record.

See

Land and Lakes Co. v. PCB

, 319 Ill. App.

3d 41, 48, 743 N.E.2d 188, 194 (3rd Dist. 2000).

PROCEDURAL MATTERS

Procedural History

On March 13, 2007, petitioners filed a petition asking the Board to review the City’s

decision to grant Waste Management siting approval for North Milam. On March 15, 2007, the

Board issued an order accepting the petition for hearing. Waste Management filed an answer to

the petition on April 13, 2007, and the City filed an answer to the petition on April 30, 2007.

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4

On April 12, 2007, with the hearing officer’s leave, the City filed the record of its

proceedings, along with an index of documents in the record. On April 25, 2007, the City filed a

motion for leave to file an amended index with various corrected spellings of names, which the

Board granted.

1

On August 23, 2007, the Board hearing officer conducted a hearing in the Madison

County Administration Building in Edwardsville. One witness testified: Kathy Andria,

President of the American Bottom Conservancy and Conservation Chair of the Sierra Club

Kaskaskia Group. The hearing transcript was received by the Board on August 24, 2007.

2

Petitioners offered ten exhibits at the Board’s hearing. Eight of the exhibits, all of which

are already part of the City’s record, were admitted. The two exhibits of petitioners not admitted

were accepted as an offer of proof and are discussed below. The City offered two exhibits, both

of which were admitted. Waste Management offered one exhibit. Waste Management’s exhibit

was not admitted but was accepted as an offer of proof and is discussed below.

Petitioners filed their initial post-hearing brief on September 17, 2007. Waste

Management and the City filed their respective response briefs on October 9, 2007. On October

12, 2007, petitioners filed an unopposed motion to extend their reply brief filing deadline from

October 12, 2007 to October 15, 2007, which the Board grants. On October 15, 2007, petitioners

filed their reply brief.

3

The Board received 31 public comments:

Yvonne Homeye (PC 1)

Bridget Stein (PC 2)

Marty Ganz (PC 3)

Sam Valenti (PC 4)

Annette Haines (PC 5)

J. Ziebol, Member of the North American Butterfly Association, St. Louis Chapter, and Webster

Groves Nature Study Society (PC 6)

Ronald G. Trimmer and Mary C. Trimmer (PC 7)

Jared Gene Williams (PC 8)

Alice Talman (PC 9)

Robert E. Criss, Professor, Washington University in St. Louis (PC 10)

Robert D. Larson (PC 11)

Richard Ellerbrake (PC 12)

Kathleen Logan Smith, Executive Director, Missouri Coalition for the Environment (PC 13)

1

The Board cites the City’s record as “C_.”

2

The Board’s hearing transcript is cited as “Tr. at _.”

3

The Board cites the post-hearing briefs as follows: petitioners’ opening brief as “Pet. Br. at _”;

Waste Management’s response brief as “WM Br. at _”; the City’s response brief as “City Br. at

_”; and petitioners’ reply brief as “Pet. Reply Br. at _.”

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5

Laura De Los Santos (PC 14)

Ted J. How (PC 15)

Lynda Means (PC 16)

Martha Younkin, Natural Fiber Artist (PC 17)

Linda Brunback and Arnett Kamer (PC 18)

Jack Norman, Member, Kaskaskia Group, Sierra Club (PC 19, PC 20)

Gena L. Magee (PC 21)

Michael Magee (PC 22)

Tiffany Randall (PC 23)

John E. Kelly, Ph.D, Assistant Director of the Powell Archaeological Research Center at the

Fingerhut House and an Archaeology Professor at Washington University (PC 24)

Kathy Andria, President of American Bottom Conservancy, Conservation Chair of Sierra Club

Kaskaskia Group (PC 25, PC 26)

Alice Tatum (PC 27)

Lola M. Rice (PC 28)

Kelley MacCorrey/Lakota (PC 29)

Steven J. Zelman, M.D., F.A.C.P., of Southern Illinois Consultants for Kidney Disease (PC 30)

Kenneth C. Keith (PC 31).

The deadline for the Board to decide this appeal was waived by Waste Management to

today, December 6, 2007.

See

415 ILCS 5/40.1(b) (2006); 35 Ill. Adm. Code 101.308, 107.504.

Offers of Proof

At the Board’s August 23, 2007 hearing, petitioner made two offers of proof (Pet. Exhs. 9

and 11) and respondents made one offer of proof (WM Exh. 1). For the reasons described

below, the Board denies all three offers and accordingly does not accept the exhibits into

evidence.

Petitioners’ Exhibit 9 consists of pages from the Board’s administrative record of

American Bottom Conservancy, East St. Louis Community Action Network, Kathy Andria and

Jack Norman v. Village of Fairmont City and Waste Management of Illinois, Inc., PCB 01-159, a

pollution control facility siting appeal concerning the vertical expansion of Milam RDF in

Fairmont City, St. Clair County. In that case, the Board issued its final opinion and order on

October 18, 2001, affirming the Village of Fairmont City’s grant of siting.

At the Board hearing in the currently-pending appeal, counsel for petitioners explained

the contents of, and purpose in offering, Exhibit 9:

These are pages from a different file, from the Milam landfill vertical expansion.

The cover pages Illinois Pollution Board certifying that these pages came from

that file. These pages are offered to show that the landfill is incompatible with

surrounding uses because they show that the applicants once before represented a

buffer was to have been a buffer to the north of Cahokia canal, and the landfill has

now jumped over the buffer. Tr. at 137.

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6

The Act requires that Board hearings on landfill siting decisions be based “exclusively on

the record before the county board or governing body of the municipality.” 415 ILCS 5/40.1(b)

(2006). In some cases, however, the Board may consider new evidence relevant to the

fundamental fairness of the local siting proceedings “where such evidence necessarily lies

outside of the record.” Land and Lakes, 319 Ill. App. 3d at 48, 743 N.E.2d at 194.

Petitioners’ Exhibit 9 was not offered to substantiate petitioners’ claims that the City’s

siting procedures were fundamentally unfair. Rather, Exhibit 9 was offered as evidence that the

City should have determined that Waste Management did not meet siting criterion (iii) (415

ILCS 5/39.2(a)(iii) (2006)). Under the Act and long-established case law, when the Board

reviews a local siting authority’s decision on the siting criteria, the Board is limited to the record

before the local siting authority.

See

415 ILCS 5/40.1(b) (2006); Town & Country Utilities, Inc.

v. PCB, 225 Ill. 2d 103, 117, 866 N.E.2d 227, 235 (2007). The Board therefore denies

petitioners’ offer of proof and petitioners’ Exhibit 9 is not accepted into evidence.

Petitioners’ Exhibit 11 consists of notes allegedly prepared before the City’s siting

hearing by Dr. John E. Kelly, Assistant Director of the Powell Archaeological Research Center

at the Fingerhut House and an Archaeology Professor at Washington University. The notes

purportedly offered a critique of various archaeological papers that Waste Management shared

with Andria, President of the American Bottom Conservancy and Conservation Chair of the

Sierra Club Kaskaskia Group, several weeks before the City siting hearing. According to

Andria, the notes were intended to assist her in cross-examining a Waste Management witness

about Native American sites. Tr. 22-30. Petitioners claim that the City hearing officer’s

preclusion of this line of cross-examination by Andria, along with Waste Management

submitting various archaeological information through public comment rather than at hearing,

was fundamentally unfair.

The Board finds that under the City’s siting ordinance, which is discussed in detail later

in this opinion, petitioners could have but failed to introduce the shared archaeological

documentation at the City hearing or call their own witnesses to testify. According to Andria,

her organization had been working not only with Dr. Kelly, but also “talking to people at the

mounds, talking to other archaeologists.” Tr. at 63. Unlike, for example, a fundamental fairness

challenge based on

ex parte

contacts, the information in petitioners’ Exhibit 11 does not

constitute evidence that “necessarily lies outside of the record.” Land and Lakes

, 319 Ill. App.

3d at 48, 743 N.E.2d at 194. Exhibit 11 does not qualify for this exception to the requirement

that the Board’s review be based solely on the record before the local siting authority.

Accordingly, the Board denies petitioners’ offer of proof and Exhibit 11 is not entered into

evidence.

Waste Management made an offer of proof of an August 3, 2007 letter from the Illinois

Historic Preservation Agency to the United States Army Corps of Engineers. Tr. at 144-45. The

offer was made solely to rebut petitioners’ Exhibit 11 offer of proof. Because the latter offer was

denied above, the Board denies Waste Management’s offer of proof and the company’s Exhibit 1

is therefore not accepted into evidence.

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7

STATUTORY FRAMEWORK

Pollution control facility siting applications and their processing by local authorities are

governed by Section 39.2 of the Act.

See

415 ILCS 5/39.2 (2006). Section 39.2 addresses,

among other things, the proof required of siting applicants, public hearings before the local

siting authority, the opportunity for public comment, and the form of the siting decision.

Specifically, Section 39.2(a) requires the applicant to submit to the local siting authority

sufficient details describing the proposed facility to demonstrate compliance with the nine

criteria of Section 39.2(a).

See

415 ILCS 5/39.2(a) (2006). For purposes of this case, only siting

criteria (i) and (iii) are at issue:

(a) The county board of the county or the governing body of the municipality, as

determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove

the request for local siting approval for each pollution control facility which is

subject to such review. An applicant for local siting approval shall submit

sufficient details describing the proposed facility to demonstrate compliance, and

local siting approval shall be granted only if the proposed facility meets the

following criteria:

(i) the facility is necessary to accommodate the waste needs of the area it

is intended to serve;

***

(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

of the surrounding property . . . . 415 ILCS 5/39.2(a)(i), (iii) (2006).

No later than 120 days after receiving an application, the local siting authority must hold

at least one public hearing.

See

415 ILCS 5/39.2(d) (2006). For at least 30 days after the date of

the last public hearing, any person may file written public comment with the local siting

authority.

See

415 ILCS 5/39.2(c) (2006). The local siting authority’s decision must be:

in writing, specifying the reasons for the decision, such reasons to be in

conformance with subsection (a) of this Section. 415 ILCS 5/39.2(e) (2006).

Siting decisions may be appealed to the Board.

See

415 ILCS 5/40.1(a), (b) (2006).

Section 40.1(a) allows the applicant to appeal a denial or conditional grant of siting.

See

415

ILCS 5/40.1(a) (2006). Section 40.1(b) allows certain third parties to appeal a grant of siting, as

in this case. In a third-party appeal:

the Board shall hear the petition in accordance with the terms of subsection (a) of

this Section and its procedural rules governing denial appeals . . . . The burden of

proof shall be on the petitioner. 415 ILCS 5/40.1(b) (2006).

In turn, subsection (a) of Section 40.1 provides in relevant part:

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8

In making its orders and determinations under this Section the Board shall include

in its consideration the written decision and reasons for the decision of the county

board or the governing body of the municipality, the transcribed record of the

hearing held pursuant to subsection (d) of Section 39.2, and the fundamental

fairness of the procedures used by the county board or the governing body of the

municipality in reaching its decision. 415 ILCS 5/40.1(a) (2006).

FACTUAL BACKGROUND

In this section of the opinion, the Board sets forth the background facts of this case.

Facts pertinent to each argument will be provided later in the opinion.

Site Location

North Milam is located in the City of Madison, Madison County. The site is on the north

side of Cahokia Canal and northeast of the currently-operating Milam RDF, which is on the

south side of Cahokia Canal. North Milam is north of Interstate 55/70, east of Illinois Route 203,

and west of Illinois Route 111. Milam RDF has been owned and operated by Waste

Management since 1984 and currently has a waste disposal area of 176 acres. Milam RDF is

estimated to reach its capacity in 2012. The North Milam expansion area is owned by Waste

Management and is proposed to be 180 acres in size, including a waste disposal footprint of

approximately 119 acres. C0019, 0037, 0454, 0456-57, 0465, 0469. The existing entrance to

Milam RDF is located off of Madison Road, west of that facility and east of Illinois Route 203.

It is proposed that North Milam would be accessed using the same entrance. C0455.

Siting Proceedings

On June 13, 2006, the City adopted Ordinance No. 1670, entitled “An Ordinance

Establishing a Procedure for Approving New Pollution Control Facility Site Requests in the City

of Madison, Illinois.” C0001A, 0011A. On September 22, 2006, Waste Management filed its

application with the City to site North Milam. C0014.

On December 21 and 22, 2006, the City held a public hearing on the application. At

hearing, Waste Management presented nine witnesses. No other witnesses testified. C0973-

1313, 1489-1535, 2179. Waste Management and petitioners introduced hearing exhibits.

C0981-82, 1314-1450, 1536-47. Oral public comment was received at hearing, including

comments from representatives of petitioners. C1452-88, 2180. The City held a written public

comment period for thirty days after the hearing. C2181. During that period, public comments

were submitted on behalf of Waste Management, petitioners, and others. C1548-49, 1589-2177.

On January 31, 2007, the City hearing officer submitted to the City his “Findings of Fact

and Recommendation of Hearing Officer.” C2178-2224; C0009A. On February 6, 2007, the

City Council voted, by a roll call vote of eight in favor and none opposed, to approve Waste

Management’s siting application. C2242. Meeting minutes were kept. C2242-44.

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9

Necessary to Accommodate Waste Needs

Sheryl R. Smith, senior project manager for Golder Associates Inc., prepared a report on

the need criterion as part of Waste Management’s siting application and testified at the City’s

public hearing. C0034-64, 1261-75, 1430-33. In evaluating the need for North Milam, Smith

identified North Milam’s service area (the geographic region from which the facility is proposed

to accept waste) as being comprised of five counties in southwest Illinois (Madison, Monroe, St.

Clair, Clinton, Bond) and seven counties in Missouri (Franklin, Jefferson, Lincoln, St. Charles,

Warren, St. Louis, Washington). C0040-41, 1268-69.

Smith determined that approximately 109 million tons of waste will be generated within

the service area over North Milam’s proposed 17-year operating life, based on population

projections and waste generation rates. Approximately 70 million tons of waste will require

disposal, if 100% of the recycling goals for all of the counties in the service area are met.

According to Smith, the waste capacity available to the service area is approximately 55 million

tons. C0042-44, 0051, 1269-73. Given that the waste capacity is approximately 55 million tons,

and the amount of waste requiring disposal ranges between approximately 70 million and 109

million tons, depending on whether recycling goals are met, Smith opined that there is a disposal

capacity shortfall of between approximately 15 million and 54 million tons. C0053, 1273-75.

Minimize Incompatibility

Waste Management’s siting application contains a report prepared by Scott Schanuel, a

community and land planner for Woolpert, Inc. C0452, 0993-94, 1394-1401. The report

concerns Schanuel’s study whether North Milam is so located as to minimize incompatibility

with the character of the surrounding area. C0454. Schanuel analyzed the land uses within an

approximately one-mile radius of North Milam. He determined that the character of the

surrounding area is predominantly agricultural and open space, mixed with industrial uses,

collectively representing over 97% of the land uses in his study area. C0454, 0458-59. Schanuel

also considered that North Milam is within an industrial zoning district of the City of Madison,

and that along with manufacturing, processing, and related activities, this zoning designation

allows sanitary landfills and landfills as a special use. C0466-69.

Schanuel prepared a conceptual “End Use Plan.” C0487. The plan proposes methods

designed to screen North Milam from off-site views with natural materials, such as native trees,

wildflowers, and grass vegetative cover for the landform.

Id

. Figure 17 of Schanuel’s report

provides the proposed detail for an evergreen and shade tree buffer around the perimeter of the

landform and surrounding sedimentation basins. Native wildflowers and grasses would also be

planted around North Milam’s perimeter in an effort to replicate the surrounding area’s natural

landscape. The plan calls for enhancements at various locations intended to screen unobstructed

off-site views and minimize visual impact on the landscape. C0487-88. The plan also states that

native grasses and wildflowers will be “planted at the perimeter during the early stages of

activity.” C0487.

Schanuel found the proposed landform compatible with existing uses after comparing

existing off-site views to the proposed End Use Plan. C1002-08, 0458-59. According to

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10

Schanuel, the End Use Plan is consistent with the 2003 City of Madison Comprehensive Plan

and the Madison County 2020 Land Use and Resource Management Plan. C1010-12, 0458-59.

Based on his review and investigation of land use, zoning, existing views, and the projected

landform, Schanuel concluded that North Milam is compatible with the character of the

surrounding area. C1012, 0487.

Schanuel testified that he was engaged by Waste Management to look at the end use or

conclusion of the facility’s operation. It was not within the scope of his engagement to evaluate

whether the landfill’s siting minimizes incompatibility with the surroundings during the

operation of North Milam. C1025-26, 1050-53. Schanuel accordingly did not assess the

potential for odors from the facility during its operation. C1025-26.

Horseshoe Lake State Park

Horseshoe Lake State Park is a 2,968-acre Illinois State Park located to the northeast of

North Milam. C0456, 0458-60. The park has group picnic shelters, playgrounds, boat ramps, a

fishing pier, campsites, hiking trails, and public waterfowl hunting blinds. C0460. Much of

Horseshoe Lake State Park consists of Horseshoe Lake. C0456. Horseshoe Lake is a natural

oxbow lake, formed by a channel cut by the Mississippi River during heavy spring floods.

C1538. Horseshoe Lake is used for fishing and hunting. C1538. The lake contains channel

catfish, bass, crappie, and bluegill for fishing.

Id

. Boat fishing is permitted except during the

waterfowl season.

Id

. Numerous public blinds are located along the lake for hunting.

Id

. A

four-mile hiking trail, known as the “Walkers Island Birdwalk,” is located on Horseshoe Lake

Island. C1539.

Horseshoe Lake State Park was considered in Schanuel’s “compatibility” evaluation.

C0454, 0462, 1019-20. North Milam is bounded by railroad tracks on its northern boundary.

C0458. The fish and wildlife area at the southern end of Horseshoe Lake State Park abuts the

railroad tracks to the south, “buffering it from activities on [the] North Milam side of the

railroad.” C0462. Schanuel found that most of the improvements and recreational activities are

located on the north side of the park, 1.5 to 2 miles from North Milam. He also noted that new

and expanded wetland mitigation areas “will further buffer the recycling and disposal operations

physically and visually from the park.” C0462, 1019-20;

see also

C0736-51. Schanuel opined

that, from a land use perspective, North Milam was not incompatible with the use of the State

park. C0462, 1019-20.

The area that is now Horseshoe Lake State Park “has been inhabited by various American

Indian groups throughout time,” dating back to 8000 B.C. C1538. What is considered the “most

impressive American Indian history” in the area occurred between 800-1600 A.D. when the

“‘Mighty Metropolis’” known as Cahokia Mounds was built.

Id.

An earthen platform Mound

still exists within the park.

Id

.

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11

Native American Sites

Waste Management’s siting application contained an “Archaeological Study Summary

Report” for North Milam prepared by the firm of Burns & McDonnell. C0719-20. Between

September 2002 and June 2006, Burns & McDonnell conducted a three-phase investigation

(identification, testing, and mitigation) of archaeological sites. The report discussed the findings

of the survey, concluding that “all of the sites identified within the project area have been fully

investigated or avoided.” C0720.

On January 16, 2007, in a public comment, Orval E. “Dan” Shinn, Burns &

McDonnell’s Cultural Resource Department Manager, submitted a letter with attachments to

supplement the report. C1591-1928. The Shinn letter states that for cultural resource

investigation, Waste Management has met or exceeded the standards and guidelines of both the

Secretary of the Interior and the State of Illinois, and has “avoided or mitigated all NRHP

[National Register of Historic Places]-eligible historic properties within the proposed disposal

area.” C1593.

Waste Management and petitioners disagree about whether and to what extent various

Native American sites are within or beyond the boundaries of North Milam. According to Waste

Management, the January 16, 2007 Shinn public comment letter “clarified that no American

Indian Mounds have been located within North Milam and there are no known burial sites within

the site.” WM Br. at 5, citing C1591-1593. Three archaeological sites were eligible for the

National Register of Historic Places (NRHP): 11 MS 1375; 11 MS 1385; and 11 MS 1316.

Waste Management maintains that the Shinn letter further clarified that:

(i) site 1316 is not within North Milam’s footprint, it will be avoided for

any future activity and there were no burial features at the site;

(ii) site 1385 is not on [Waste Management]-owned property and is 1,000 feet

from North Milam’s boundary; and

(iii) site 1375 also is outside North Milam, is protected by a fenced 75-foot buffer

fence, and the ridge associated with this site has gone through a complete Phase 3

mitigation. WM Br. at 4-5, citing C1592-93.

Petitioners dispute that the Shinn public comment letter supports these conclusions about

the locations of sites 1316, 1375, and 1385. Pet. Reply Br. at 10, citing C1591-93. Petitioners

quote the Shinn letter in maintaining that while the “North Milam site is well outside the

established boundaries of the Cahokia National Landmark/World Heritage site . . . it is certain

the investigated prehistoric sites are associated with Cahokia.” Pet. Reply Br. at 10, quoting

C1593. According to petitioners, during its investigation, Waste Management encountered “pre-

Columbian” Native American sites 1316, 1375, and 1385 on the proposed landfill site. Pet. Br.

at 3, citing C1593, 2069. At site 1316, in December 2005, continue petitioners, archeologists

uncovered what were later determined to be “ancient human remains.” Pet. Br. at 3, citing

C2087, 2095. Around the skull, pottery shards were found. Pet. Br. at 3, citing C2084. Twenty-

six archaeological features and four architectural features were exposed, mapped, photographed,

and covered. Pet. Br. at 3, citing C1592. At site 1375, a Native American Mound was

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12

surrounded by a “fenced 75-foot buffer.”

Id

. Petitioners add that seventy-four archaeological

features and three architectural features were found and excavated. Pet. Br. at 3, citing C1593.

Cahokia Mounds

The boundaries of Cahokia Mounds World Heritage Site and National Historic Landmark

are 2,140 feet from North Milam. C2069, 2074. Cahokia Mounds is recognized as a State

Historic Site; a National Historic Landmark; and a United Nations Educational, Scientific and

Cultural Organization (UNESCO) World Heritage Site. C1544. It is the largest pre-Columbian

settlement north of Mexico and was occupied primarily between 800-1400 A.D. C1540. During

this time period, it covered almost 1,600 hectares and included 120 Mounds.

Id

. The site’s

Monks Mound is the largest prehistoric earthwork in the Americas.

Id.

The Mississippians built

at least 100 additional Mounds at other nearby sites, many of which have now been altered or

destroyed. C1545.

Schanuel’s study addressed “land use compatibility in connection with the Cahokia

Mounds.” WM Br. at 5, citing C1021; C0462. The study found that Cahokia Mounds is:

physically and visually separated [from North Milam] by a number of intervening

uses including [Interstate Highway] I-55/70, Illinois [Route] 111, considerable

residential and commercial development in the Village of Fairmont City, the

Cahokia Canal and associated vegetation, and natural areas. C0464.

The Schanuel study compared an existing off-site view from Cahokia Mounds to the

proposed North Milam landform. C0472-73, 0475, 0477, 0484. The comparison view of the

proposed landform from Cahokia Mounds was created using a three-dimensional digital

elevation computer model. C0477. From the top of Monks Mound, the St. Louis skyline is

visible to the southwest, the existing Milam RDF is visible to the west, and North Milam would

be to the northwest. This westward view is predominantly of rolling hills, natural vegetation,

farm fields, and industrial/commercial activities. C0473, 0475, 0484. As shown in the modeled

view, the completed North Milam landform, as proposed, would be visible from the top of

Cahokia Mounds, appearing as a mounded rise in the horizon off to the northeast. C0475, 0484,

0489.

Mayor Hamm’s February 7, 2007 Letter

Mayor John J. Hamm, III of the City of Madison wrote a letter dated February 7, 2007,

addressed to two persons: Gloria Iseminger, Secretary of the Cahokia Archaeological Society,

located in Collinsville; and John E. Kelly, Ph.D, Assistant Director of the Powell Archaeological

Research Center at the Fingerhut House, located in Fairmont City. C2246.

4

Mayor Hamm

stated that the purpose of his letter was to respond to two concerns raised in letters sent to the

4

The Mayor’s letter, which the City included in its record, is dated the day after the City Council

voted to approve Waste Management’s siting application. Petitioners assert that the Mayor’s

letter is evidence of fundamental unfairness (Pet. Reply Br. at 11), as discussed later in this

opinion.

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13

City by the Cahokia Archaeological Society and the Powell Archaeological Research Center,

which were received by the City as public comment during the siting proceeding.

Id

.

The Mayor’s letter noted that the two concerns regarding the “location of the Milam

expansion” were “its proximity to Cahokia Mounds” and “that the expansion area may contain

important archaeological features.” C2246. The Mayor’s letter stated:

The concerns raised by these letters were considered by the City of Madison when

it evaluated whether to grant siting approval for the Milam expansion. On

February 6, after considering all of the evidence submitted at the siting hearing

and all written comments, including your letters, the City of Madison council

unanimously voted to approve the siting of the Milam expansion. The City does

not believe that the concerns raised in your letters warranted denial for the reasons

I will discuss below.

With respect to the proximity of the Milam expansion to the Cahokia Mounds, the

proposed facility is over 2 miles from Monks Mound and is located outside of the

established boundaries of Cahokia National Landmark/World Heritage site.

With respect to the concerns that human remains and other archaeological

features could be located on the expansion property, I reviewed the letter and

attached documents provided by Waste Management’s archaeological consultant

Burns & McDonnell. The documentation clearly shows that no mounds are

located within the North Milam facility boundary and that the two mounds noted

in your letters (11MS1375 mound and 11MS1385) are located outside of the

facility boundary. Only two sites within the facility boundary were determined

eligible after Phase II investigations (11MS1375 ridge area and 11MS1316). Site

11MS1375 (ridge area) has been mitigated and site 11MS1316 is not located

within the disposal area and will be avoided. A Burns & McDonnell

archaeologist was present when the Madison County Coroner’s office removed

the skull and no burial features were observed. The Burns & McDonnell letter

further notes that there are no known burial sites in the project area.

The City of Madison is supportive of the Cahokia Mounds and the preservation of

our Native American heritage in this area. However, the City does not believe

that the Milam expansion will either adversely impact Cahokia Mounds or result

in the destruction of important Native American artifacts. C2246-47.

Wetlands

Waste Management proposed to excavate and remove soil from North Milam to use as

cover material on Milam RDF. C0723. Approximately 8.5 acres of farmed wetlands and 9.9

acres of forested wetlands on North Milam would be impacted. C1929, 1973. The wetland

referred to as Area 5 is a 13.9-acre complex of moderate to high quality, forested and scrub-

shrub wetland. C1933, 1939. Vegetative and wildlife habitat are moderate to high in this

wetland. C1939.

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14

The siting application contains Waste Management’s wetland permit application

submitted to the United States Army Corps of Engineers (Corps) under Section 404 of the

federal Clean Water Act. C0735-74. The Section 404 permit application requests that Waste

Management be allowed to impact the approximately 18.4 acres of farmed and forested

wetlands. To mitigate these proposed impacts, the permit application seeks to create

approximately 36.65 acres of wetlands, resulting in a 2:1 mitigation ratio. C0736, 0740-42. The

mitigation wetlands would be created on and adjacent to North Milam. C736, 1010.

Scott Harding, a soil scientist with SCI Engineering, Inc., submitted a letter with

attachments on January 17, 2007, as a public comment. C1929-2068. The letter states that

Waste Management submitted an effective wetland mitigation plan, and that IEPA has issued a

federal Clean Water Act Section 401 [33 U.S.C. § 1341] Water Quality Certification to Waste

Management. C1929-30. On that basis, Harding expected the Corps to issue a Section 404

permit in January 2007. C1929.

FUNDAMENTAL FAIRNESS

Petitioners’ claim that the City’s siting proceedings were “conducted in a fundamentally

unfair manner” is based on two arguments. First, concerning the Section 39.2(a)(iii)

“compatibility” criterion, petitioners maintain that Waste Management presented information

about Native American sites and wetlands through public comment, not at hearing, and

petitioners were not allowed to cross-examine Waste Management’s “compatibility” witness on

those issues. Second, according to petitioners, the City never rendered a written decision

specifying its reasoning for the grant of siting as required by Section 39.2(e) of the Act. Pet. Br.

at 10.

Waste Management asserts that these arguments must fail because:

(a) it is not fundamentally unfair to limit cross-examination to relevant evidence

concerning the statutory siting criteria; and (b) the City’s unanimous approval and

adoption of the Hearing Officer’s findings of fact and recommendations at a

transcribed City Council meeting is sufficient to satisfy Section 39.2(e). WM Br.

at 2.

The City joins in Waste Management’s arguments regarding fundamental fairness. City Br. at 3.

In this portion of the opinion, the Board will first discuss the parties’ fundamental

fairness arguments regarding the Section 39.2(a)(iii) “compatibility” criterion, followed by the

Board’s legal analysis and ruling. The Board will then discuss the parties’ fundamental fairness

arguments on the Section 39.2(e) “writing” requirement, followed by the Board’s legal analysis

and ruling.

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15

Fundamentally Fairness Concerning “Compatibility” Criterion

Petitioners’ Position—Hearing and Public Comment

According to petitioners, Waste Management presented “no evidence of the on-site

Native American Mounds or wetlands during the public hearing.” Pet. Br. at 11. Petitioners

maintain that instead of providing any “testimony, data, or information” about these concerns at

hearing, Waste Management “submitted its data toward the end of the public comment period.”

Id

. at 11-12, citing C1591-1928 (Native American sites), 1929-2068 (wetlands). According to

the City’s Mayor, continue petitioners, the City “relied on the data submitted by Waste

Management toward the end of the comment period.” Pet. Br. at 12, n.6, citing C2246-47.

Further, petitioners state that they attempted to cross-examine Waste Management’s

“compatibility” witness, Schanuel, about Native American sites but were precluded from doing

so:

Q. Are you aware that there are at least two mounds and a burial site and

countless artifacts at the site?

Mr. Moran: Objection, beyond the scope of his direct. It’s also not relevant.

Hearing Officer: Sustained.

Q. If you knew that there were mounds on the site would you consider that

compatible?

Mr. Moran: Objection, same basis.

Hearing Officer: Sustained.

Pet. Br. at 11, citing C1045-46.

Likewise, petitioners explain that they tried but were not allowed to cross-examine Schanuel

concerning wetlands:

Q. Do you find it incompatible to destroy wetlands to build a landfill?

Mr. Moran: Objection, same reason [beyond scope of direct examination].

Hearing Officer: Sustained.

Pet. Br. at 12, citing C1015.

Petitioners conclude that because Waste Management failed to present any evidence

regarding these Native American sites or wetlands at hearing, refused to allow its witness to be

cross-examined about them, and then submitted its information about them at the end of the

public comment period, the siting proceedings before the City were not fundamentally fair. Pet.

Br. at 11-13.

Waste Management’s Response—Hearing and Public Comment

Waste Management responds that “[a]rchaeological and cultural resource reviews are not

part of the local siting process under Section 39.2.” WM Br. at 6. “[S]uch reviews,” continues

Waste Management, are part of a “separate regulatory framework established by federal law

under 36 C.F.R. 60.4.”

Id

. Nor is identifying and mitigating wetlands part of the statutory

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16

criteria for local siting approval, according to Waste Management. Rather, wetlands are subject

to a separate review process under Section 404 of the federal Clean Water Act.

Id

. at 8.

Waste Management then asserts that it is not fundamentally unfair to limit cross-

examination to relevant evidence. WM Br. at 18. It is Waste Management’s position that there

is no right to cross-examine witnesses on “irrelevant subject matter.”

Id

., citing Concerned

Adjoining Owners v. PCB, 288 Ill. App. 3d 565, 680 N.E.2d 810, 817-818 (5th Dist. 1997).

Waste Management explains that in Concerned Adjoining Owners:

the city of Salem purchased land for a proposed landfill. The city manager filed

an application for site approval for the landfill. After conducting a hearing, the

city council approved the application. The petitioners sought to cross-examine a

witness on the issue of economics and profitability of the proposed landfill, but

were denied the opportunity. The petitioners argued that the decision granting

site approval should be reversed because their inability to cross-examine a witness

was fundamentally unfair. The petitioners argued that the information they

sought from the witness is part of the needs assessment and, therefore, was a

relevant consideration. The appellate court disagreed, and held that because

economics is not specifically listed in Section 39.2, its potential for consideration

by the local siting authority is discretionary, not mandatory. WM Br. at 18, citing

Concerned Adjoining Owners, 288 Ill. App. 3d at 574-75, 680 N.E.2d at 817.

Here, continues Waste Management, the consideration of archaeological sites and

wetlands is “not enumerated as a statutory criterion” and therefore, under Concerned Adjoining

Owners, “inquiry into those subjects is not mandatory.” WM Br. at 18. Waste Management

adds that as it did not address those issues with Schanuel on direct examination, the City hearing

officer properly sustained Waste Management’s objections when petitioners attempted to “probe

into these issues on cross-examination.”

Id

. at 18-19.

Next, Waste Management asserts that under the City’s siting ordinance, Ordinance No.

1670, siting applicants and participants in the siting proceeding “have the discretion to submit

whatever evidence they wish to include for the record at hearing.” WM Br. at 20, citing

C0001A-11A. According to Waste Management:

It is up to the party submitting the evidence to determine what information they

believe will be important and to make that submission. [Waste Management]

submitted documentary and testimonial evidence relating to each of the nine

siting criteria. It was not required to submit evidence on subjects that petitioners

wanted to address. WM Br. at 20.

Waste Management also disputes petitioners’ claim that the company’s “last-minute”

submission of wetland or archaeology information “created an unfair playing field,” leaving

petitioners without time to adequately respond. WM Br. at 20. Section 5 of the City ordinance

provides procedures for public comment after the public hearing.

Id

., citing C0006A-08A. The

30-day public comment period, Waste Management continues, gave enough time for persons to

prepare and submit comments to the hearing officer. Under these procedures, “numerous public

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17

comment was submitted in favor of the Application,” including Waste Management’s own

comments, and petitioners were permitted to make their own submissions. WM Br. at 20. Waste

Management concludes that “[t]here was nothing fundamentally unfair about the manner in

which public comment was submitted or received.”

Id

.

The City’s Response—Hearing and Public Comment

The City maintains that it provided “ample safeguards to protect the principle of

fundamental fairness, and no interested party was prejudiced by its actions.” City Br. at 5.

According to the City, it made “particular efforts to provide all interested parties an opportunity

to participate in and be heard during the siting application and hearing process.”

Id

. at 2.

The City explains that it adopted Ordinance No. 1670 on June 13, 2006, establishing the

procedures which all interested parties, including Waste Management, would have to follow

during the siting process. City Br. at 2-3. Under the ordinance, continues the City, the

procedures:

provided numerous opportunities to participate in various ways, so that the City

Council would be able to consider multiple view points.

All interested parties were encouraged to: (1) submit documents prior to the

hearings on December 21 and 22, 2006; (2) provide testimony, make statements

or submit relevant documents during the hearing; (3) cross-examine witnesses

appearing for the Applicant or in opposition; and (4) submit comments as to any

issue deemed significant or critical to the decision making process for a period of

thirty (30) days subsequent to the hearing. City Br. at 3.

The City Council also directed that the public hearing include morning, afternoon,

and evening hours to, the City asserts, “accommodate any and all who wished to participate in

the process.” City Br. at 3.

Despite the opportunities for public participation provided by Ordinance No. 1670

“before, during and after the hearing,” the City argues that petitioners “failed to offer any

evidence or information of substance on the pertinent siting issues for the Hearing Officer or

City Council to consider.” City Br. at 3-4. The City goes further and claims that:

By not taking advantage of the thirty day post hearing comment period to submit

evidence or comment concerning issues they felt they were prohibited from

introducing during the hearing, Petitioners effectively waived any fundamental

fairness issue on those subjects. To the extent they submitted materials, their

objections to not being able to do so during the hearing are moot.

Id

. at 4.

Petitioners’ Reply—Hearing and Public Comment

Petitioners claim that Waste Management’s response brief leaves the issue “clearly

defined” for the Board:

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18

If the Native American Mounds and wetlands are a part of the “character of the

surrounding area,” then Waste Management should have presented proof of the

landfill’s compatibility with the Mounds and the wetlands, and petitioners should

have been permitted to inquire about the Mounds and the wetlands during the

hearing before the City. Pet. Reply Br. at 8.

Petitioners assert that the Native American Mounds and the wetlands are as much a part

of the character of the surrounding area as the open fields or farmland addressed by Waste

Management’s “compatibility” analysis. Pet. Reply Br. at 8-9. Yet Waste Management

“declined to put forth its proof” needed to satisfy one of the siting criteria “until 28 days after the

conclusion of the hearing” when the company filed its public comments.

Id

. at 9.

Petitioners maintain that before hearing, they received “papers concerning the mounds”

from Waste Management and in turn forwarded those papers to archeologist Dr. John Kelly for

his review. Pet. Reply Br. at 9, citing Tr. 22-23. According to petitioners, Dr. Kelly:

was critical of the papers, the procedures, the absence of an archaeological report

on the discovery of the human remains, and the way the surveys were reported

and conducted. Pet. Reply Br. at 9, citing Tr. 27.

Petitioners explain that Dr. Kelly gave petitioners “notes for petitioners to use to question and

rebut Waste Management’s report.” Pet. Reply Br. at 9. Petitioners claim they were prepared to

elicit testimony from Waste Management at hearing about North Milam’s “impact to the Native

American Mounds discovered.”

Id

. at 10, citing C1045-46.

According to petitioners, Dr. Kelly told them that “it is not clear what sites are actually

within the project area and what will be impacted.” Pet. Reply Br. at 10. Petitioners argue that

this “lack of clarity” concerning impacts to these sites remains:

For example, in its brief, Waste Management points to (pp. 5-6) a January 16,

2007, letter from Mr. Shinn to support the following assertions: “no American

Indian Mounds have been located within North Milam;” “there are no known

burial sites within the site;” “site 1316 is not within North Milam’s footprint;”

“site 1385 is not on [Waste Management]-owned property and is 1,000 feet from

North Milam’s boundary;” and “site 1375 also is outside North Milam.” A

careful reading of Mr. Shinn’s letter (C 1591-1593), however, shows that none of

these statements is supported by that letter. What the letter does say is that

although the “North Milam site is well outside the established boundaries of the

Cahokia National Landmark World Heritage site . . .[,] it is certain the

investigated prehistoric sites are associated with Cahokia.” C 1593. Further, an

attachment to this same letter says that the “investigation of the 180 acres that

make up the proposed project contained 7 archeological sites.” C 1607. Pet.

Reply Br. at 10.

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19

Petitioners also dispute the claim of Waste Management and the City that it was up to

petitioners to determine what information they believed was important and to submit that

information to the City: “That simply is not feasible when petitioners lack access to the land that

would allow them to gather the data.” Pet. Reply Br. at 10. Petitioners conclude that Waste

Management’s submission of information on these Native American sites through public

comment rather than at hearing, coupled with the restriction on petitioners’ cross-examination,

is:

even more fundamentally unfair because Mayor John Hamm wrote to the two

archaeological organizations stating that the City’s decision was based on the

archaeological report submitted as public comment. Pet. Reply Br. at 11, citing

C2246-47.

Board Analysis—Legal Standards for Fundamental Fairness Review

The Board must consider the fundamental fairness of the procedures used by the City in

reaching its decision to approve siting for North Milam:

In making its orders and determinations under this Section the Board shall include

in its consideration . . . the fundamental fairness of the procedures used by the

county board or the governing body of the municipality in reaching its decision.

415 ILCS 5/40.1(a) (2006);

see also

415 ILCS 5/40.1(b) (2006).

A non-applicant who participates in a local pollution control facility siting hearing has a

“statutory right to ‘fundamental fairness’ in the proceedings before the local siting authority.”

Land and Lakes

, 319 Ill. App. 3d at 47, 743 N.E.2d at 193. It is well-settled, however, that this

right does not require “the protection afforded by the constitutional guarantee of due process.”

Land and Lakes, 319 Ill. App. 3d at 47, 743 N.E.2d at 193. The courts have interpreted the

“right to fundamental fairness” as:

incorporating minimal standards of procedural due process, including the

opportunity to be heard, the right to cross-examine adverse witnesses, and

impartial rulings on the evidence. Land and Lakes, 319 Ill. App. 3d at 47-48, 743

N.E.2d at 193;

see also

Daly v. PCB

,

264 Ill. App. 3d. 968, 970-71, 637 N. E.2d

1153, 1155 (1st Dist. 1994).

Board Analysis—Fundamental Fairness Concerning “Compatibility” Criterion

Section 39.2 of the Act requires the local siting authority to both hold a public hearing

and allow for the submission of written public comment:

At least one public hearing is to be held by the county board or governing body of

the municipality no sooner than 90 days but no later than 120 days after the date

on which it received the request for site approval. 415 ILCS 5/39.2(d) (2006).

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20

Any person may file written comment with the county board or governing body of

the municipality concerning the appropriateness of the proposed site for its

intended purpose. 415 ILCS 5/39.2(c) (2006).

The Board disagrees with the City that petitioners’ fundamental fairness arguments, about

their cross-examination at hearing being unduly restricted, are waived or mooted by the

opportunity to file, or the filing of, post-hearing public comments. The City cites no authority

for its position. Contrary to the City’s characterization, petitioners’ specific complaint here is

that they were not allowed to cross-examine a witness as they wished, not that they were

disallowed from introducing documents at hearing. In fact, a number of exhibits from petitioners

were accepted into the record at hearing.

As provided above, a public comment period is required by the Act, in addition to the

public hearing. The Board cannot find that the existence of the statutorily-required comment

period, or the fact that petitioners and Dr. Kelly filed public comments, bars petitioners from

challenging the fundamental fairness of the public hearing itself. Petitioners attempted to cross-

examine Schanuel regarding Native American sites and wetlands, but were denied when Waste

Management’s objections were sustained by the City’s hearing officer. By the City’s siting

ordinance, Ordinance No. 1670, rulings of the City hearing officer could not have been appealed.

C0006A (Section 4(E): “No ruling of the Hearing Officer shall be appealable to the governing

body of the City.”). Public comment in no way waives or renders moot petitioners’ fundamental

fairness arguments about being so denied the chance to subject this witness to “the crucible of

cross-examination.” Varilek v. Mitchell Engineering Co., 200 Ill. App. 3d 649, 671, 558 N.E.2d

365, 380 (1st Dist. 1990).

Nor can the Board agree with Waste Management’s broad statement that such subjects as

prehistoric Native American sites and wetlands are not to be considered by the local siting

authority because they are not explicitly listed in the Section 39.2(a) criteria. Waste

Management interprets Concerned Adjoining Owners too mechanistically. The landfill objectors

there sought to, but were denied, the opportunity to question the siting applicant on the

economics of the proposed facility, maintaining that economics is part of the criterion (i) “needs

assessment.” The court stated:

Although economics is not listed in

section 39.2

, TOTAL argues that it is relevant

and should have been considered. Since economics is not a specifically listed

criteria, its potential for consideration is discretionary, not mandatory. Concerned

Adjoining Owners, 286 Ill. App. 3d 565, 680 N.E.2d 810,

Concerned Adjoining Owners

held that economics, or “how much the landfill would cost

to run or how much it would make,” is simply not relevant to whether the facility is necessary to

meet the waste needs of its intended service area,

i.e.

, to criterion (i), which requires that:

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

to serve. 415 ILCS 5/39.2(a)(i) (2006).

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21

By Waste Management’s logic, the failure of Section 39.2(a) to explicitly list “land use” as a

siting criterion would render much of its “compatibility” expert’s analysis irrelevant. The Board

finds that on this issue, Concerned Adjoining Owners is of no aid to Waste Management.

Petitioners assert that they were denied cross-examination of Schanuel on matters of

Native American sites and wetlands. Section 39.2(a)(iii) requires, in pertinent part, that:

the facility is located so as to minimize incompatibility with the character of the

surrounding area. 415 ILCS 5/39.2(a)(iii) (2006).

The Board finds that the NRHP-eligible Native American sites associated with Cahokia

and the Section 404 wetlands are relevant to assessing whether North Milam “is located so as to

minimize incompatibility with the character of the surrounding area.”

See

,

e.g.

, Land and Lakes,

319 Ill. App. 3d at 47, 743 N.E.2d at 193 (considering Midewin National Tallgrass Prairie under

criterion (iii)); Those Opposed To Area Landfills (T.O.T.A.L.) v. City of Salem, PCB 96-79,

PCB 96-82 (consol.) (Mar. 7, 1996) (wetlands considered under criterion (iii)),

aff’d sub nom

.

Concerned Adjoining Owners v. PCB, 286 Ill. App. 3d 565, 680 N.E.2d 810 (5th Dist. 1997).

That Native American sites and wetlands may also be subject to separate federal regulatory

schemes, or for that matter separate Board location standards at permitting (35 Ill. Adm. Code

811.102

5

), does not make the sites here any less relevant to the “compatibility” criterion in this

case. The Board declines to read exceptions or limitations into the plain and ordinary meaning

of the language of criterion (iii).

See

Town & Country, 225 Ill. 2d at 117, 866 N.E.2d at 235

(“We must not depart from the plain language of the Act by reading into it exceptions,

limitations, or conditions that conflict with the express legislative intent.”).

It is, however, a most basic procedural tenet that the cross-examination of a witness is

limited to the scope of direct examination.

See

,

e.g.

, Hansen v. Miller, 145 Ill. 538, 542, 32 N.E.

548, 549 (1892) (“The rule is familiar, that the cross-examination of a witness should be

confined to matters to which he has testified on his direct examination.”). This principle is

codified in Section 4(G), Rule 10 of the City’s siting ordinance, Ordinance No. 1670, which

governed the public hearing:

RULE 10: Any participant, or their attorneys, may conduct cross-examination of

5

Part 811 addresses standards for new solid waste landfills. Section 811.102(c) provides: “The

facility shall not be located in areas where it may pose a threat of harm or destruction to the

features for which an irreplaceable historic, or archaeological site was listed pursuant to the

National Historic Preservation Act (16 U.S.C. 470 et seq.) or the Illinois Historic Preservation

Act (Ill. Rev. Stat. 1989, ch. 127, par. 133d1 et seq.) for which a Natural Landmark was

designated by the National Park Service or the Illinois State Historic Preservation Officer, or for

which a natural area was designated as a Dedicated Illinois Nature Preserve pursuant to the

Illinois Natural Area Preservation Act (Ill. Rev. Stat. 1989, ch. 105 par. 701 et seq.).” Section

811.102(e) states: “The facility shall not cause a violation of Section 404 of the Clean Water Act

(33 U.S.C. 1344).”

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22

witnesses. Any

cross-examination shall be relevant to the testimony

of any

witness and non-duplicative of other cross-examination questions. Cross

examination of witnesses shall be permitted only during that period of time

immediately following each witness' testimony. C0008A (emphasis added).

When petitioners attempted to cross-examine Schanuel about Native American sites and

wetlands, counsel for Waste Management objected each time as follows: petitioners’ attempted

cross-examination was irrelevant (Native American sites (C1045-46)) and beyond the scope of

direct examination (Native American sites (C1045-46) and wetlands (C1015)). The City hearing

officer each time sustained the objection. The Board finds that the proposed cross-examination

was beyond the scope of Schanuel’s direct examination. For that matter, it was also beyond the

scope of his “compatibility” report in the siting application. Petitioners do not argue otherwise.

The Board can find no fault with the hearing officer’s rulings.

In addition, petitioners had multiple opportunities to present information to the City

regarding the Native American sites and wetlands. Besides the post-hearing public comment

period discussed below, the City’s siting ordinance permitted petitioners to offer documentary

evidence and call their own witnesses at hearing. Section 4 of the ordinance, entitled “Public

Hearing,” reads in pertinent part:

RULE 1:

All reports, studies, exhibits or other evidence or copies thereof,

other than testimony, which any applicant or participant who

desires to submit for the record at the public hearing must be filed

with the City Clerk at least five (5) days before the public hearing

and shall be available for public inspection in the office of the City

Clerk.

RULE 2:

The applicant and any participant shall submit a written list of

proposed witnesses to the Hearing Officer at least five (5) days

prior to the commencement of the public hearing. Said witness list

shall state the name, address and occupation of said witnesses and

shall contain a summary of the subject matter and substance of the

testimony of the witness. C0006A-7A (Section 4(G), Rules 1 and

2).

Under the City’s siting ordinance, petitioners could have but did not seek to have entered

at hearing the Waste Management archaeological information shared with Andria, President of

the American Bottom Conservancy and Conservation Chair of the Sierra Club Kaskaskia Group,

or present their own witnesses to testify about Native American sites and wetlands. Petitioners

imply that they would have needed site access to be able to present information about Native

American sites at the City hearing. Not only is there no allegation that site access was ever

sought by or denied to petitioners, but petitioners claim that they were prepared to cast doubt,

through cross-examination, on the Waste Management’s archaeological documentation, all

without any such property access.

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23

Moreover, petitioners did provide oral comments at the City hearing, including comments

from Andria critical of “the archaeological work that’s been done on this site” and comments

from Andria and Bensman, Conservation Chair for the Piasa Palisades Group of the Sierra Club,

about wetland impacts. C1467-68, 1472-77. Petitioners also had seven exhibits entered into the

record at hearing. C1436-44, 1445-50, 1536-37, 1538-39, 1540-43, 1544-45, 1546-47.

Further, contrary to petitioners’ suggestion, Waste Management did present

archaeological and wetland evidence at the City’s December 21-22, 2006 public hearing. Waste

Management’s siting application, filed with the City on September 22, 2006, was entered into

evidence as an exhibit at hearing. C0981-82. Waste Management’s siting application includes

the Burns & McDonnell report concerning archaeological investigations at North Milam.

C0719-20. Waste Management’s siting application also includes its Section 404 (federal Clean

Water Act) permit application and other studies and documentation related to wetlands. C0735-

74;

see also

WM Br. at 15.

Waste Management did not call, as witnesses at hearing, any representatives of the firms

that prepared these archaeological and wetland reports. However, “[t]here is no rule that any

person authoring a report relied upon in a siting application must be called as a witness in the

siting hearing.” Concerned Adjoining Owners, 288 Ill. App. 3d at 575, 680 N.E.2d at 818.

Additionally, at the City hearing, as in Concerned Adjoining Owners:

all of the objectors were allowed to present evidence and object to evidence

presented. They were given ample opportunity to cross-examine all of the

witnesses. The procedures followed in the siting hearing were fair. Concerned

Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818 (“Some of the

people whose reports were contained in the siting application did not testify, but

all those who testified were offered for cross-examination”).

Nor can the Board find anything improper about Waste Management presenting

additional information on Native American sites and wetlands through public comments.

Consistent with Section 39.2(c) of the Act (415 ILCS 5/39.2(c) (2006)), the City siting ordinance

provided petitioners and all others with the chance to file public comments after hearing. Section

5 of the Ordinance, entitled “Public Comment,” states:

A. Any person may file written comment with the City Clerk (on behalf of the

Hearing Officer) concerning the appropriateness of the proposed site for its

intended purpose. The City Clerk shall accept and the Hearing Officer shall

consider any comment received or postmarked not later than 30 days after the

date of the last public hearing. In the event that the 30th day falls on a Sunday

or a federal holiday, the next day on which mail is delivered shall be considered

the 30th day for purposes of this paragraph.

B. Copies of such written comments shall be made available for public inspection

in the offices of the City Clerk, and members of the public shall be allowed to

obtain a copy of any written comment upon payment of actual cost of

reproduction.

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24

C. Any such written comment received by the City Clerk shall be made part of

the record of the public hearing as hereinafter described and the Hearing Officer

shall consider any such timely written comments in making his/her report and

recommendation concerning said request to the governing body of the City.

C0009A.

The two public comments on behalf of Waste Management were timely submitted,

received by the City on January 19, 2007, three days prior to the January 22, 2007 end of the

comment period. C1591-1928 (letter with attachments from Orval E. “Dan” Shinn of Burns &

McDonnell), 1929-2068 (letter with attachments from Scott D. Harding of SCI Engineering,

Inc.).

In Land and Lakes

, on the last day of the public comment period, Waste Management

submitted “approximately 2,000 pages of material” consisting of:

a number of engineering and other technical reports addressing the geology and

hydrology of the Prairie View site, federal government efforts concerning

environmental remediation of the Arsenal property, and the suitability of the

Prairie View site for landfill development. Land and Lakes

, 319 Ill. App. 3d at

51, 743 N.E.2d at 196.

A Waste Management expert who testified at the local siting hearing “relied on

some

of the

documents in her testimony.” Land and Lakes, 319 Ill. App. 3d at 51, 743 N.E.2d at 196

(emphasis added).

The Land and Lakes court affirmed the Board’s decision that the filing of the documents

on the last day of the public comment period was not fundamentally unfair:

The documents in question were submitted within the 30-day public comment

period. A party cannot cross-examine written material submitted as public

comment. [citation omitted] Moreover, the Act does not require that the public

comment period be held open to allow parties to respond to materials submitted

on the last day. Land and Lakes

, 319 Ill. App. 3d at 51, 743 N.E.2d at 196;

see

also

Southwest Energy Corp. v. PCB, 275 Ill. App. 3d 84, 93, 655 N.E.2d 304,

310 (4th Dist. 1995) (“Obviously, the parties cannot cross-examine those who

submit written comments.”).

Accordingly, petitioners’ implication that they did not have enough time to respond (Tr.

at 30) to the Waste Management public comments (Burns & McDonnell on archaeological sites

and SCI Engineering, Inc. on wetlands) does not help petitioners. Further, contrary to

petitioners’ characterization (Pet. Reply Br. at 9), the public comment filed on the last day by the

siting applicant in Land and Lakes

was not merely a summary of prior record information. In

addition, the public comment there did include documentation that was relevant to the siting

criteria and that was not relied upon by the applicant’s witness at hearing. Land and Lakes, 319

Ill. App. 3d at 51, 743 N.E.2d at 196.

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25

Additionally, petitioners here, while asserting that some of the archaeological information

in the public comment is unclear (Pet. Reply Br. at 10), have not demonstrated that either public

comment submitted on behalf of Waste Management contains “erroneous data or conclusions.”

Land and Lakes, 319 Ill. App. 3d at 51, 743 N.E.2d at 196. Though petitioners sought to cross-

examine Schanuel on archaeological and wetland issues, petitioners have not articulated to the

Board “how [they] would have responded” to the substance of the technical information

provided in these public comments. Indeed, in their briefs, petitioners cite to the Waste

Management public comments in support of petitioners’ positions on appeal.

See

Pet. Br. at 3-4,

7-8, citing C1592-93, 1929, 1933, 1939, 1973; Pet. Reply Br. at 5, 7, 10, citing C1591-93, 1607,

1939. Under these circumstances, as the court held in Land and Lakes, “even assuming that the

[local siting authority] erred by considering the documents, any such error must be considered

harmless.” Land and Lakes, 319 Ill. App. 3d at 52, 743 N.E.2d at 196.

Moreover, anyone, including petitioners, could have filed a public comment pursuant to

the City’s siting ordinance, and certainly Waste Management was not precluded from doing so.

In fact, petitioners, as well as the Cahokia Archaeology Society and Dr. Kelly’s organization, the

Powell Archaeological Research Center, did submit timely public comments that were received

by the City several days after its receipt of the Waste Management comments. The objectors’

comments addressed concerns over archaeological and wetland impacts. C2069-70, 2074, 2077-

96, 2097-2122, 2123-43, 2156-75.

The City therefore had before it both the objectors’ and the siting applicant’s public

comments on these issues. And, as with its opportunity to introduce evidence at hearing,

petitioners never explain why they did not submit, as a public comment, the archaeological

information shared with Andria before hearing, along with any critique of that information by

Dr. Kelly.

The Act requires the public comment period held by the City.

See

415 ILCS 5/39.2(c)

(2006). That the City considered the information contained in Waste Management’s timely-

submitted public comments is far from fundamentally unfair, as petitioners argue. Rather, it is

required by the Act:

The county board or governing body of the municipality

shall consider

any

comment received or postmarked not later than 30 days after the date of the last

public hearing. 415 ILCS 5/39.2(c) (2006) (emphasis added);

see also

Southwest

Energy, 275 Ill. App. 3d at 93, 655 N.E.2d at 310 (“

Section 39.2(c)

of the Act

requires the local governing body to consider any written comment filed within 30

days of the last public hearing.”).

For the reasons above, the Board is not persuaded by petitioners’ arguments concerning

the hearing and public comments and finds that petitioners have failed to prove that the City’s

siting procedures were rendered fundamentally unfair on those grounds.

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26

Fundamental Fairness Concerning Section 39.2(e) “Writing”

Petitioners’ Position—Written Siting Decision

Petitioners state that, under the Act, the decision of the local siting authority “must be in

writing and must specify the reasons for the decision.” Pet. Br. at 13, citing 415 ILCS 5/39.2(e)

(2006) and 415 ILCS 5/40.1(a) (2006) (Board shall include in its consideration the written

decision and reasons for the decision of the local body). According to petitioners, there is “no

written decision of the City of Madison here that specifies the reasons for the City’s decision to

approve the landfill.” Pet. Br. at 13. “The only writing,” continue petitioners, “is the City of

Madison City Council Meeting Minutes from February 6, 2007”:

It was moved by Alderman Grzywacz, seconded[,] by Alderperson

Armour, to approve the Waste Management Siting Application dated

September 22, 2006. Roll call vote as follows: Yeas: Armour, Bridick,

Grzywacz, Riskovsky, Hampsey, Vrabec, Gardner, and Treadway.

Nays: None. Motion carried.

Id

., quoting C2242.

Petitioners argue that even if the City’s minutes were sufficient to be considered the

“writing” required by the Act, “ the minutes fail to give any reason for the City’s decision.” Pet.

Br. at 13-14. Petitioners then conclude that for this reason, “the proceedings conducted by the

City of Madison were not fundamentally fair.”

Id

. at 14.

Waste Management’s Response—Written Siting Decision

Waste Management argues that the February 6, 2007 City Council minutes, together with

the City hearing officer’s January 31, 2007 findings of fact and recommendation, constitute

the City’s written decision. WM Br. at 21. Waste Management explains that Section 7 of the

City’s siting ordinance governs the “site approval decision process.”

Id

., citing C0009A.

According to Waste Management, Section 7(A) provides that:

the hearing officer shall make written findings of fact and a recommendation

concerning the site approval request, and that any findings of fact and

recommendation shall be supported by the record and shall be presented to the

governing body of the City within 45 days of the conclusion of the public hearing.

[citation omitted] Section 7(C) states that the City only need make a

determination concerning a site approval request within 180 days from the date of

the City Clerk’s receipt of the site approval request. WM Br. at 21, citing

C0009A.

Waste Management states that on January 31, 2007, the City hearing officer “timely

submitted to the City a written findings of fact and recommendation supported by the record.”

WM Br. at 21, citing C2178-2217. Then, continues Waste Management, on February 6, 2007:

during a scheduled City Council meeting, the City adopted the Hearing Officer’s

written findings of fact and recommendation into consideration and voted

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27

unanimously to approve the Application. These events were transcribed in the

form of the meeting minutes. WM Br. at 21, citing C2242.

The fact that the City did not prepare a separate written decision, argues Waste

Management, “does not invalidate the approval or render the proceedings fundamentally unfair.”

WM Br. at 21. Waste Management relies on Peoria Disposal Co. v. Peoria County Board, PCB

06-184, slip op. at 33-34 (June 21, 2007),

appeal pending sub nom.

Peoria Disposal Co. v. PCB

and County of Peoria, No. 3-07-435 (3rd Dist.). In Peoria Disposal, Waste Management

explains:

the local siting authority met to vote on a final decision concerning local siting. A

motion to approve the recommended findings of fact was moved and seconded,

but then failed by a vote of twelve against to six in favor. A court reporter

transcribed the meeting and the local siting authority included those transcripts in

the siting record, but the local siting authority kept no minutes of the meeting and

did not draft any subsequent summary of the vote. [citation omitted] The

petitioners in that case argued that there was no final action taken or written

decision issued as required under Section 39.2(e) of the Act. The Board disagreed

and found that “the transcript and recommended findings of fact constitute the

written decision required by the Act.” WM Br. at 21-22, citing Peoria Disposal,

PCB 06-184, slip op. at 12, 33-34.

Waste Management concludes that under Peoria Disposal

,

the City hearing officer’s

written findings of fact and recommendation here, coupled with the “written transcript of the

City’s approval on February 6, 2007,” constitute a written decision in compliance with Section

39.2(e). WM Br. at 22.

The City’s Response—Written Siting Decision

The City likewise cites Peoria Disposal and asserts that the “action taken by the City

Council reflected in its written minutes of February 6, 2007 is . . . sufficient to comply with the

statutory requirement of a written decision with reasons given.” City Br. at 4. According to the

City, at that February 6, 2007 meeting:

the City Council cited the written findings of the Hearing Officer as the basis for

its unanimous vote to approve the Application. Given the paucity of competent

information submitted by Petitioners during the lengthy siting process, there was

no basis for the City Council to have voted otherwise.

Id

.

Petitioners’ Reply—Written Siting Decision

Petitioners assert that Peoria Disposal is distinguishable from this case. Pet. Reply Br. at

11-12. In Peoria Disposal, according to petitioners, the Board:

had before it “the entire decision . . . stated verbatim in the transcript.” [citation

omitted] As pointed out by one of the parties, “the County Board could not have

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28

created a written decision that was more accurate and complete than the final

meeting transcript. [citation omitted] With the reasons for the County Board’s

decision set out verbatim in the transcript, this Board found that the transcript and

the recommended findings of fact satisfy the requirements of Section 39.2(e).

Id

.

at 11, citing Peoria Disposal, PCB 06-184, slip op. at 13.

Petitioners argue that in contrast, the City here “did not even mention or refer to any

reasons or to any findings or to any documents stating the reasons for its approval.” Instead,

maintain petitioners, the City “simply voted.” Pet. Reply Br. at 12, citing C2242. “The vote,

without reasons,” does not comply with the Act, according to petitioners. Pet. Reply Br. at 12.

Petitioners dispute Waste Management’s contention that there is a “transcript” of the

February 6, 2007 City Council meeting: “There are only meeting minutes that give no reason for

the City’s decision.” Pet. Reply Br. at 12. Petitioners also dispute the assertion of both the City

and Waste Management that, on February 6, 2007, the City “adopted the Hearing Officer’s

written findings of fact and recommendation.”

Id

. According to petitioners, “[t]here is nothing

in the record to support these assertions,” and these “unsupported assertions made by counsel . . .

should be disregarded” by the Board.

Id

.

Petitioners conclude that given the City’s “bare vote” without reasons, “there can be no

meaningful administrative or judicial review of the City’s decision.” Pet. Reply Br. at 13.

Petitioners quote from the Illinois Supreme Court’s decision in Reinhardt v. Board of Ed. of

Alton Community Unit School Dist. No. 11:

It is clear that a decision by an administrative agency must contain findings to

make possible a judicial review of the agency’s decision. The Supreme Court in

Securities and Exchange Com. v. Chenery Corp

., 318 U.S. 80, 94, 63 S.Ct. 454,

462, 87 L.Ed. 626, described the requirement stating that ‘the orderly functioning

of the process of review requires that the grounds upon which the administrative

agency acted be clearly disclosed and adequately sustained.’ Pet. Reply Br. at 13,

quoting Reinhardt v. Board of Ed. of Alton Community Unit School Dist. No. 11

,

61 Ill. 2d 101, 103-104, 329 N.E.2d 218, 220 (1975).

Board Analysis—Fundamental Fairness Concerning Section 39.2(e) “Writing”

Section 39.2(e) of the Act states:

Decisions of the county board or governing body of the municipality are to be in

writing, specifying the reasons for the decision, such reasons to be in

conformance with subsection (a) of this Section. 415 ILCS 5/39(e) (2006).

Petitioners’ opening brief argues that the City did not comply with this provision of the

Act, but fails to explain how this alleged noncompliance rendered fundamentally unfair “the

procedures used by . . . the governing body of the municipality in reaching its decision.” 415

ILCS 5/40.1(a) (2006). In its reply brief, petitioners suggest that there can be no meaningful

review of the City’s decision. For the reasons below, the Board disagrees and further finds that

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29

the City satisfied the requirement of Section 39.2(e) that its decision be in writing, specifying the

reasons for the decision.

Waste Management states that the City Council “adopted the Hearing Officer’s written

findings of fact and recommendation into consideration” before approving the siting application

at the City Council’s February 6, 2007 meeting. WM Br. at 21. Likewise, according to the City,

the City Council at that meeting “cited the written findings of the Hearing Officer as the basis for

its unanimous vote to approve the Application.” City Br. at 4. The Board agrees with

petitioners, however, that the face of the meeting minutes reveal only a roll call vote approving

Waste Management’s siting application. C2242. The Board also agrees with petitioners that no

verbatim transcript was made of the City Council’s February 6, 2007 meeting. The Board finds,

however, that petitioners’ Section 39.2(e) argument is premised on reading the City Council

minutes in a vacuum.

The City adopted a siting ordinance on June 13, 2006, Ordinance No. 1670. Section

4(G), Rule 12 of the ordinance states:

The decision of the governing body of the City will be in writing and specify the

reasons therefor, such reasons to be in conformity with Section 5/39.2(a) of the

Act. C0008A.

Section 7 of the City ordinance is entitled “Site Approval Decision.” That section reads in its

entirety as follows:

A. After the public hearing and any continuation thereof, the Hearing Officer

shall make written findings of fact and a recommendation concerning the site

approval request. Any findings of fact and recommendation shall be supported by

the record and shall be presented to the governing body of the City within 45 days

of the conclusion of the public hearing.

B. The governing body of the City may consider as evidence the previous

operating experience and past record of convictions or admissions of violations of

the applicant and any subsidiary, parent corporation, or subsidiary of the parent

corporation in the field of solid waste management.

C. The governing body of the City shall consider the record from the public

hearing and the findings of fact and recommendations of the Hearing Officer and

shall make a determination concerning a site approval request within 180 days

from the date of the City Clerk’s receipt of the site approval request.

D. No determination by the governing body of the City of a site approval request

may be reconsidered. C0009A.

The City’s public hearing concluded on December 22, 2006. On January 31, 2007, the

City hearing officer submitted to the City Council his findings of fact and recommendation.

C2178-2224. The hearing officer’s submittal was 47-pages long and addressed each of the nine

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30

siting criteria of Section 39.2(a). The submittal states that the hearing officer considered, among

other items in the record, all of the hearing exhibits and written public comments, each of which

is identified in appendices. C2180-81, 2218-24. In Appendix III to his findings and

recommendation, the hearing officer summarized the position taken in each public comment and

listed any attachments provided within the comment. C2220-24. For each criterion, the hearing

officer separately described testimony, made findings of fact, and rendered a conclusion of law.

The hearing officer concluded that each of the nine siting criteria had been met. C2183-2216.

At the end of this analysis, the hearing officer recommended that the City grant site location

approval for North Milam. C2217. On February 6, 2007, the City Council voted to grant site

location approval. C2242.

Accordingly, the City hearing officer, under Section 7(A) of the ordinance, timely

submitted his written findings of fact and recommendation concerning Waste Management’s

application. Section 7(C) of the ordinance provides that the City Council then “shall consider the

record from the public hearing and the findings of fact and recommendations of the Hearing

Officer and shall make a determination concerning a site approval request.” The City Council

met six days after the hearing officer’s submittal and voted to approve Waste Management’s

siting application. It is plain from the chronology of these events and the language and structure

of the City’s siting ordinance that the City Council’s vote, as reflected in the meeting minutes,

and the hearing officer’s findings of fact and recommendation, constitute the City’s siting

decision. That decision, the Board finds, was “in writing, specifying the reasons for the

decision.” 415 ILCS 5/39.2(e) (2006).

Put in the proper context then, this decision of the City to grant siting for North Milam is

subject to meaningful review. “All of the statutory criteria must be satisfied before approval of

the siting application can be granted.” Concerned Adjoining Owners, 288 Ill. App. 3d at 576,

680 N.E.2d at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 45, 743 N.E.2d at 191 (“An

applicant seeking siting approval must submit sufficient details of the proposed facility

demonstrating that it meets each of nine criteria.”); Waste Management of Illinois, Inc. v. PCB,

160 Ill. App. 3d 434, 443, 513 N.E.2d 592, 597-98 (2nd Dist. 1987). The City Council’s vote,

combined with the hearing officer’s findings, reflect a determination that Waste Management

satisfied all nine criteria. In E & E Hauling, Inc. v. PCB

, 116 Ill. App. 3d 586, 451 N.E.2d 555

(2nd Dist. 1983),

aff’d on other grounds

, 107 Ill. 2d 33, 481 N.E.2d 664 (1985), the court held

that the local siting authority:

need only indicate which of the criteria, in its view, have or have not been met,

and this will be sufficient if the record supports these conclusions so that an

adequate review of the County Board’s decision may be made. E & E Hauling

,

116 Ill. App. 3d at 616, 451 N.E.2d at 577-78.

Further support for the Board’s ruling is found in Clutts v. Beasley

, 185 Ill. App. 3d 543,

541 N.E.2d 844 (5th Dist. 1989). There, the court addressed an objector’s argument that the

local siting authority’s “written decision [granting siting] did not include specific findings of

fact, but instead, merely recited the criteria for approving landfills prescribed by statute.” Clutts,

185 Ill. App. 3d at 544, 541 N.E.2d at 845. The court stated that contrary to the objector’s claim,

there “can be meaningful review of the County Board’s decision, because there is a record of all

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31

matters that were presented to the Board.”

Id

. The court then listed the Section 39.2(a) siting

criteria and held:

These criteria are factual as well as ultimate findings to be made by the County

Board. In the ordinary case, it would be difficult for a County Board to be more

specific than what is set out as criteria. For example, either a proposed facility is,

or is not, outside the boundary of the 100-year flood plain. The purpose of these

criteria is to impose standards, so that the decision of the County Board to

approve or deny operation of a proposed landfill is made with guidance, rather

than arbitrarily or by whim. We hold that so long as the decision is in writing,

and a record has been made showing the basis for the decision, neither a detailed

statement finding specific facts, nor a detailed explanation of the relationship

between the facts, the criteria, and the conclusions is necessary, and the decision

can be framed in the language of the criteria set out in the statute. Clutts

, 185 Ill.

App. 3d at 544, 541 N.E.2d at 845-46.

Here, to find noncompliance with Section 39.2(e) by reading the City Council’s meeting

minutes in isolation, as petitioners urge, would “elevate procedural form over the substance and

intent of Section 39.2.” Peoria Disposal

, PCB 06-184, slip op. at 33-34,

appeal pending sub

nom.

Peoria Disposal Co. v. PCB and County of Peoria, No. 3-07-435 (3rd Dist.). The minutes

of the City Council meeting that document the vote to grant siting, combined with the City

hearing officer’s written findings of fact and recommendation, all pursuant to the City’s siting

ordinance, constitute a sufficient written siting decision within the meaning of Section 39.2(e) of

the Act. Accordingly, contrary to petitioners’ claims, a written siting decision, specifying its

reasoning, was not lacking in this case.

The Board finds that petitioners have failed to prove that “the procedures used by . . . the

governing body of the municipality in reaching its decision were fundamentally unfair.” 415

ILCS 5/40.1(a) (2006).

SITING CRITERIA

In this part of the opinion, the Board will first discuss the parties’ arguments about the

City’s determination that Waste Management satisfied siting criterion (i) on “need.” This is

followed by the Board’s legal analysis and ruling. Next, the Board discusses the parties’

arguments concerning the City’s determination that Waste Management satisfied siting criterion

(iii) on “compatibility.” The Board then provides its legal analysis and ruling on that criterion.

Criterion (i): Necessary to Accommodate Waste Needs

One of the two Section 39.2 siting criteria at issue is whether the proposed facility is

necessary to accommodate the waste needs of the area it is intended to serve.

See

415 ILCS

5/39.2(a)(i) (2006).

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32

Petitioners’ Position—Need

Petitioners argue that to satisfy this siting criterion, the applicant must demonstrate “an

urgent need for the new facility as well as the reasonable convenience of establishing a new

landfill.” Pet. Br. at 9, citing File v. D&L Landfill, Inc., 219 Ill. App. 3d 897, 906, 579 N.E.2d

1228, 1235 (5th Dist. 1991). Petitioners note that according to a 2005 IEPA landfill capacity

report, North Milam falls within IEPA’s Region Six, the landfill capacity of which “increased by

almost 33.9 million gate cubic yards (29 percent) from the previous year.” C1445. Further,

landfill operators in the Region reported 17 years of remaining waste disposal capacity.

Id

.

According to petitioners, because Metro East landfill capacity increased 29% from the

previous year, and seventeen years of capacity remains, “there is no urgent need for North

Milam” and Waste Management accordingly failed to meet the need criterion. Reply Br. at 9,

citing Waste Management of Illinois, Inc. v. PCB

, 175 Ill. App. 3d 1023, 1033, 530 N.E.2d 683,

691 (2nd Dist. 1988) (no need for proposed landfill where nine years of capacity remained).

Waste Management’s Response—Need

Waste Management begins by observing that its “need” expert, Smith, took into account

the data referred to by petitioners from the 2005 IEPA landfill capacity report for Region Six.

WM Br. at 16. Smith testified on cross-examination that she analyzed not only this data, but also

other data on the remaining permitted capacity for the landfills evaluated in 2005 and 2006.

Id

.,

citing C1290-91, 0062-63. Waste Management asserts therefore that “this data does not affect

the correctness of the City’s finding that criterion (i) was met.” WM Br. at 16.

Criterion (i) is met, states Waste Management, when the applicant shows that a proposed

facility is “reasonably required by the waste needs of the service area taking into consideration

its waste production and disposal capabilities.” WM Br. at 17, citing File. A siting applicant is

not required to show “absolute necessity” to meet criterion (i), according to Waste Management.

Id.

The company acknowledges that the court in Waste Management

,

175 Ill. App. 3d at 1031,

530 N.E.2d at 689, affirmed the local siting authority’s finding that “remaining capacity of nine

years was insufficient need.” WM Br. at 17-18. Waste Management points out, however, that in

E & E Hauling, 116 Ill. App. 3d 586, 451 N.E.2d 555, the court “found the need criterion

established when the remaining capacity of the area landfills [was] ten years.” WM Br. at 18.

Waste Management maintains that it presented “credible evidence and expert opinion

establishing that North Milam is necessary to accommodate the waste needs of the area it is

intended to serve.” WM Br. at 18. Based on Smith’s testimony, “there is a disposal capacity

shortfall ranging between approximately 15 million and 54 million tons.”

Id

., citing C1273-74,

0053. According to Waste Management, “[n]o contrary evidence regarding need was offered.”

WM Br. at 18. Therefore, concludes Waste Management, “the evidence supports the City’s

finding of need and the decision is not against the manifest weight of the evidence.”

Id

., citing

Industrial Fuels & Resources v. PCB, 227 Ill. App. 3d 533, 592 N.E.2d 148, 156 (1st Dist. 1992).

The City joins in Waste Management’s criterion (i) arguments. City Br. at 3.

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33

Board Analysis—Legal Standards for Siting Criteria Review

As discussed above, siting approval is to be granted only if a proposed facility meets all

nine of the criteria set forth in Section 39.2(a) of the Act (415 ILCS 5/39.2(a) (2006)).

See

Town

& Country, 225 Ill. 2d at 109, 866 N.E.2d at 231 (“a negative decision as to one of the criteria is

sufficient to defeat an application for site approval of the pollution control facility”);

see also

Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818; Land and Lakes, 319

Ill. App. 3d at 45, 743 N.E.2d at 191.

The Board will not disturb a local siting authority’s decision regarding the applicant’s

compliance with the statutory siting criteria unless the decision is contrary to the manifest weight

of the evidence.

See

Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197. “That a different conclusion

may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or

indisputable.” Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818,

quoting Turlek v. PCB, 274 Ill. App. 3d 244, 249, 653 N.E.2d 1288, 1292 (1st Dist. 1995). The

Board may not reweigh the evidence on the siting criteria to substitute its judgment for that of

the local siting authority.

See

Fairview Area Citizens Taskforce v. PCB, 198 Ill. App. 3d 541,

550, 555 N.E.2d 1178, 1184 (3d Dist. 1990); Waste Management of Illinois, Inc. v. PCB, 187 Ill.

App. 3d 79, 81-82, 543 N.E.2d 505, 507 (2nd Dist. 1989); Tate v. PCB, 188 Ill. App. 3d 994,

1022, 544 N.E.2d 1176, 1195 (4th Dist. 1989). “[T]he manifest weight of the evidence standard

is to be applied to each and every criteria on review.”

See

Concerned Adjoining Owners, 288 Ill.

App. 3d at 576, 680 N.E.2d at 818.

It is for the local siting authority to weigh the evidence, assess witness credibility, and

resolve conflicts in the evidence.

See

Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680

N.E.2d at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d at 197; Fairview, 198

Ill. App. 3d at 550, 555 N.E.2d at 1184; Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195.

Where there is conflicting evidence, the Board is not free to reverse merely because the local

siting authority credits one group of witnesses and does not credit the other.

See

Waste

Management, 187 Ill. App. 3d at 82, 543 N.E.2d 505, 507. “[M]erely because the [local siting

authority] could have drawn different inferences and conclusions from conflicting testimony is

not a basis for this Board to reverse the [local siting authority’s] finding.” File

, 219 Ill. App. 3d

at 905-906, 579 N.E.2d at 1235.

Board Analysis—Criterion (i) “Need”

An applicant before the local siting authority does not have to show an “absolute

necessity” for the proposed facility to satisfy criterion (i). File, 219 Ill. App. 3d at 906, 579

N.E.2d at 1235;

see also

Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846; A.R.F. Landfill, Inc.

v. PCB, 174 Ill.App.3d 82, 91, 528 N.E.2d 390, 396 (2nd Dist. 1988); Waste Management of

Illinois, Inc. v. PCB, 122 Ill. App. 3d 639, 645, 461 N.E.2d 542, 546 (3rd Dist. 1984); Waste

Management of Illinois, Inc. v. PCB, 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969, 976 (2nd

Dist.1984); Waste Management

, 175 Ill. App. 3d at 1031, 530 N.E.2d at 689. In File, the court

held that the applicant:

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34

must demonstrate an urgent need for the new facility as well as the reasonable

convenience of establishing a new or expanding an existing landfill. (

Waste

Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d

1023, 1031, 530 N.E.2d 682, 689

.) The applicant must show that the landfill is

reasonably required by the waste needs of the area, including consideration of its

waste production and disposal capabilities. (

Waste Management of Illinois, Inc.,

175 Ill. App. 3d at 1031, 530 N.E.2d at 689

.) The applicant need not show that

every other potential landfill site in the region is unsuitable but must show more

than mere convenience.

Waste Management of Illinois, Inc. v. Pollution Control

Board (1984), 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969, 976

. File, 219 Ill.

App. 3d at 906-07, 579 N.E.2d at 1235-36;

see also

Industrial Fuels, 227 Ill. App.

3d at 545-46, 592 N.E.2d at 156 (court declining to enter “what appears to be a

semantic battle” over different articulations of the meaning of “necessary”: “That

different courts may use different phraseology does not, in our view, mean that

the various districts of the appellate court apply substantively different

definitions.”)

Petitioners rely on a portion of a 2005 IEPA landfill capacity report for IEPA’s Region

Six, which was entered at the City hearing as an American Bottom Conservancy exhibit. C1292,

1445-50. Region Six consists of the following nine Illinois counties: Bond, Clinton, Fayette,

Madison, Marion, Monroe, Randolph, St. Clair, and Washington. The report states:

On Jan. 1, 2006, Region 6 landfill capacity increased by almost 33.9 million gate

cubic yards, or up 29 percent from the previous year. Landfill operators in the

region reported 17 years of capacity remaining for waste disposal. C1445.

Petitioners argue that there accordingly is “no urgent need for North Milam.” Pet. Reply Br. at

9.

The record contains the siting application “criterion (i)” report (C0033-64) and the

testimony (C1261-94) of Smith, Waste Management’s “needs” expert. Smith is a solid waste

consultant with twenty-four years of experience in the solid waste industry. She has prepared

need reports for sixteen solid waste landfills, eight transfer stations, and one thermal destruction

facility, and has testified as an expert on need in nineteen local siting hearings. C1261-67, 1430-

33.

Smith identified the service area for, and the types of waste to be accepted by, North

Milam. The facility plans to accept waste from five Illinois counties (Bond, Clinton, Madison,

Monroe, St. Clair) and seven Missouri counties (Franklin, Jefferson, Lincoln, St. Charles, St.

Louis, Warren, Washington). The types of waste North Milam plans to accept are: municipal

solid waste, construction and demolition debris, asbestos, nonhazardous permitted special waste,

and nonhazardous permitted liquids for solidification. C1268-69.

Smith determined that within this service area, 108,854,284 tons of waste will be

generated over the course of North Milam’s 17-year operating life (from 2012 to 2028). Smith

calculated this figure by considering population projections and waste generation rates. If 100%

---

35

of the recycling goals for all 12 counties in the service area are reached, then 70,028,952 tons of

waste will require disposal. According to Smith, the estimated disposal capacity available to the

service area as of January 2012, however, is only 55,077,874 tons. C0053, 1269-73. Smith

concluded:

Depending on the recycling goals achieved each year by the counties in the

service area, the service area will experience a capacity shortfall ranging from

14,951,078 to 53,776,410 tons, over the operating life of North Milam. The

capacity of North Milam is needed to accommodate a portion of the projected

capacity shortfall. C0053;

see also

1273-75.

The Board finds that the City’s decision that North Milam is necessary to accommodate

the waste needs of the area it is intended to serve is not contrary to the manifest weight of the

evidence. Smith’s calculations took into account the data in the 2005 IEPA landfill capacity

report relied on by petitioners, as well as data on Missouri facilities. C0054-55, 0062-63, 1288-

91. Smith considered projections of population, rates of waste generation, and distances to

alternate disposal sites. C0042-44, 0051. With waste requiring disposal projected at

approximately 70 to 109 million tons over North Milam’s planned operating life of 2012 to 2028,

and available disposal capacity estimated at approximately 55 million tons as of 2012, resulting

in a disposal capacity shortfall of approximately 15 to 54 million tons, Smith testified that the

facility is necessary to meet the waste needs of its intended service area. No witness testified to

the contrary.

Waste Management was not required to show an absolute necessity for North Milam to

satisfy criterion (i). Waste Management demonstrated an urgent need for, as well as the

reasonable convenience of, establishing North Milam. The record shows that North Milam is

reasonably required by the waste needs of its service area, considering the area’s waste

production and disposal capabilities, along with other relevant factors.

See

File, 219 Ill. App. 3d

at 906-07, 579 N.E.2d at 1235-36. The opposite conclusion, that North Milam is unnecessary to

accommodate the service area’s waste needs, is not clearly evident, plain or indisputable.

See

Concerned Adjoining Owners

, 288 Ill. App. 3d at 576, 680 N.E.2d at 818. Accordingly, the

City’s determination that Waste Management met criterion (i) is not against the manifest weight

of the evidence.

Criterion (iii): Located to Minimize Incompatibility with

the Character of the Surrounding Area

The other of the two siting criteria at issue is whether the proposed facility is “located so

as to minimize incompatibility with the character of the surrounding area.” 415 ILCS

5/39.2(a)(iii) (2006).

Overview of the Parties’ Arguments on Criterion (iii)

According to petitioners, there are five reasons why North Milam is not located to

minimize incompatibility with the character of the surrounding area:

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36

1.

There is no “substantive buffer” between North Milam and Horseshoe Lake State

Park.

2.

“American Indian Mounds” are located on North Milam and “ancient human

remains” have been found at the site.

3.

North Milam is within 2,140 feet of the “Cahokia Mounds World Heritage Site

and National Historic Landmark Boundary.”

4.

North Milam will “take” 18 acres of wetlands.

5.

No effort was made to determine whether North Milam would be compatible with

the surrounding area “during the landfill’s operation.” Pet. Br. at 6.

Ultimately, petitioners conclude that “it is not possible to minimize the incompatibility of the

proposed landfill with the character of the surrounding area.” Pet. Reply Br. at 7-8.

Waste Management argues that each of petitioners’ five arguments on criterion (iii)

should be rejected. First, Waste Management points out that petitioners challenge only the

City’s finding that North Milam is located so as to minimize incompatibility with the character

of the surrounding area, not the City’s finding on the other component of criterion (iii): the

facility is located “so as to minimize the effect on the value of the surrounding property.” WM

Br. at 10, citing 415 ILCS 5/39.2(a)(iii) (2006).

Waste Management asserts that “[p]roximate property uses and zoning classifications”

are proper considerations for determining whether a proposed facility is compatible with the

character of the surrounding area. WM Br. at 10, citing Fairview (proposed landfill compatible

with area of abandoned strip mines). Waste Management maintains that the Schanuel study

addressed “planning issues that are commonly used to make determinations of land use

compatibility.” WM Br. at 3, citing C0454. By Waste Management’s account, Schanuel gave

“clear and convincing testimony” that North Milam is compatible with the character of the

surrounding area. WM Br. at 10. He testified, continues Waste Management, that the

“predominant land uses” within a one-mile radius are agricultural and open space mixed with

industrial uses, and that the area is zoned for landfills as a special use.

Id

.

Waste Management states that petitioners failed to present any evidence establishing that

the City’s findings on criterion (i) were “clearly and indisputably wrong.” WM Br. at 9. Instead,

according to Waste Management, petitioners’ arguments are based on “factual misstatements,

distortions of the record, and speculation.”

Id

. Because, according to Waste Management, “[n]o

other witness contradicted or refuted Mr. Schanuel’s findings or opinions,” the “unrefuted

evidence” of surrounding land uses was “sufficient evidence” to support the City’s finding that

North Milam is compatible with the character of the surrounding area. WM Br. at 10-11.

The City joins in Waste Management’s criterion (iii) arguments. City Br. at 3. The City

adds that:

there was overwhelming, competent evidence submitted by the Applicant to

support the findings made by the Hearing Officer and City Council in approving

the siting application. In fact, the record is virtually devoid of competent

---

37

evidence or comments submitted by American Bottom Conservancy or the Sierra

Club that challenges or questions the evidence submitted by the Applicant.

Id

.

Buffers Between North Milam and Horseshoe Lake State Park

Petitioners’ Position Concerning Buffers for the Park.

North Milam is incompatible

with the surrounding area, according to petitioners, “because there is no substantive buffer

between the proposed landfill and Horseshoe Lake State Park.” Pet. Br. at 6.

Petitioners state that northern end of North Milam would be bounded by railroad tracks,

which are abutted by a fish and wildlife area at the southern end of Horseshoe Lake State Park.

Pet. Br. at 6, citing C0458, 0462. Waste Management’s consultant, according to petitioners,

asserts that the tracks serve as “strong physical demarcations between the Open

Space/Recreation/ Conservation uses and North Milam” (Pet. Br. at 6, citing C0471) and a buffer

for the fish and wildlife area (Pet. Br. at 6, citing C0462). The consultant concludes, continue

petitioners, that due to “physical and visual buffers,” North Milam is not incompatible with the

use of Horseshoe Lake State Park. Pet. Br. at 6, citing C0464, 0489.

Petitioners argue that “[t]here is no noticeable buffer unless a train happens to be passing

by.” Pet. Br. at 6, compare View 2 on C 0479 (train present) with Views 3 and 4 on C 0474

(without train). Even then, park users need only “glance upward to view the landfill.” Pet. Br. at

7, n.2. When there is no train present, according to petitioners, park users looking south “would

have an unobstructed view of the proposed landfill.” Pet. Br. at 6-7. Whether a train is present

or not, petitioners argue, the railroad tracks provide “no meaningful visual buffer for persons

using Horseshoe Lake State Park.”

Id

. at 7. Train tracks also do not prevent landfill odors,

continue petitioners, “from migrating to the public use areas of Horseshoe Lake, immediately

upwind” of North Milam.

Id

.

Waste Management’s Response Concerning Buffers for the Park.

Waste

Management maintains that it presented evidence of sufficient buffers between North Milam and

Horseshoe Lake State Park. WM Br. at 11. According to Waste Management, petitioners’

argument is:

based on the incorrect assumption that the Alton and Southern Railroad tracks on

the northern boundary of the Facility are the only buffer between North Milam

and Horseshoe Lake State Park.

Id

.

Waste Management argues that the evidence in the record shows that there are additional

significant buffers between North Milam and Horseshoe Lake State Park. WM Br. at 11.

Specifically, Schanuel testified that “distance is a significant buffer given that most of the

recreational activities occur on the north side of the park approximately 1.5 to 2 miles from

North Milam.”

Id

., citing C1019-20. Schanuel also testified, continues Waste Management, that

other significant buffers include “the railroad tracks, open fields, Horseshoe Lake itself, and an

approximately thirty-acre wetland mitigation area.”

Id

., citing C1020. Waste Management

asserts that Schanuel’s report discussed the “End Use Plan,” which proposes methods for

“phased-in screening” of North Milam from off-site views with:

---

38

natural materials, including a fairly continuous and dense buffer of evergreen and

shade trees, native wildflowers and grasses around the perimeter of the landform

and surrounding sedimentation basins, to replicate the character of the natural

landscape of the surrounding area.

Id

., citing C0487-88.

Waste Management asserts that under criterion (iii), an applicant is required “to

demonstrate that it has done or will do what is reasonably feasible to minimize incompatibility.”

WM Br. at 11-12, citing File

,

219 Ill. App. 3d at 900, 579 N.E.2d at 1231, 1236; Waste

Management

,

123 Ill. App. 3d at 1090, 463 N.E.2d at 980. Where there is no incompatibility,

however, according to Waste Management, “minimization is not required.” Tate, 188 Ill. App.

3d at 1022, 544 N.E.2d at 1197. Waste Management maintains that because “Schanuel’s

testimony satisfied the first part of criterion (iii), [Waste Management] was not required to show

any steps to minimize what did not exist.” WM Br. at 12. Despite this, concludes Waste

Management, Schanuel provided “ample testimony” as to the company’s “efforts to enhance

North Milam’s compatibility with the surrounding area by providing significant landscaped

screenings and buffers around the Facility.”

Id

.

Petitioners’ Reply Concerning Buffers for the Park.

Petitioners note that Horseshoe

Lake State Park consists of 2,968 acres. Pet. Reply Br. at 1, citing C0456, 0458-60. Petitioners

concede that uses at the far north end of the park “may be buffered by the acreage that consists of

the Park itself.”

Id

., citing C1020. However, continue petitioners, “that is not the case for those

who use the other parts of the Park.”

Id

. at 1-2.

Specifically, petitioners reiterate that the fish and wildlife area at the southern end of the

park abuts the railroad tracks at the northern boundary of North Milam. Pet. Reply Br. at 2,

citing C0458, 0462. “Much of the nature and wildlife observation is at the southern end of the

Park,” continue petitioners. Pet. Reply Br. at 2. Fishing, including subsistence fishing, takes

place in Horseshoe Lake, which is “just 2,000 feet from the proposed landfill.”

Id

., citing

C0456, 1538, 2160, 2165. Petitioners also state that people hunt along and on the lake, the

southern portion of which has many of the park’s public hunting blinds.

Id

., citing C1538, 1543.

According to petitioners, “[t]he record simply does not support the assertion that there are

additional significant buffers between most of the Park and North Milam.” C0456.

Petitioners also take issue with Waste Management assertion that its consultant’s report

proposed a “phased-in screening of North Milam from off-site views with natural materials.”

Pet. Reply Br. at 2. Petitioners argue that Waste Management is “attempting to fabricate a buffer

for the landfill,

while in operation

, where none exists.”

Id

. (emphasis added). Petitioners stress

that this part of the consultant’s discussion appears in the “section of his report that deals with

North Milam’s ‘End Use Plan.’”

Id

., citing C0487. According to petitioners, further evidence

that these materials were never proposed to serve as a buffer during the landfill’s operation is

provided by the fact that Waste Management’s “compatibility” expert did not evaluate the

landfill’s visual impacts during operation or “impacts from odor during the landfill’s operation

upon nature observers, birdwatchers, those walking trails, fishing, picnicking, camping and

hunting, or upon anyone else.”

Id

., citing C1021, 1051.

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39

Petitioners conclude that North Milam’s location, “just 2,000 feet from a State park used

by hundreds of thousands of people every year,” is “incompatible with the surrounding area.”

Pet. Reply Br. at 3, citing C0456. According to petitioners, “[i]t not possible to minimize that

incompatibility.”

Id

.

Native American Sites

Petitioners’ Position Concerning Native American Sites.

Petitioners state that during

its investigation, Waste Management “encountered Native American sites (sites 1316, 1375, and

1385) on the proposed landfill site.” Pet. Br. at 7. “Numerous archeological and architectural

features have been uncovered at these sites,” according to petitioners.

Id

., citing C1592-93.

Petitioners add that:

Ancient human remains, together with pottery shards, were discovered at one of

the sites. C 2087, 2095. These pre-Columbian sites are associated with Cahokia

Mounds. C 1593, 2069.

Id

.

Petitioners further assert that the “contemporary American Indian community opposes the

siting of the landfill (Pet. Br. at 7, citing C1589, 2069), quoting the following comment from the

City hearing provided by a member of the Tongva Nation from California:

you are digging into our ancestors, you are desecrating our ancestors, especially

these burials. . . . This affect [sic] us indigenous people, our native people all

over the world . . . . Pet. Br. at 7, citing C1459.

Waste Management’s Response Concerning Native American Sites.

Waste

Management responds with a two-part argument: first, archaeological issues are not part of the

Section 39.2(a) siting criteria; and second, petitioners failed to present evidence of any Native

American Mounds located within North Milam or that Waste Management has not made efforts

to minimize any incompatibility with archaeological sites. WM Br. at 12.

First, Waste Management states that the Act requires the local siting authority to

“approve or disapprove site location suitability considering the nine criteria listed in Section

39.2(a).” WM Br. at 12, citing Clutts

, 185 Ill. App. 3d at 546, 541 N.E.2d at 846. “Archaeologic

impact from a proposed landfill,” continues Waste Management, is not part of the Section

39.2(a) analysis and:

criterion (iii) is not intended to make any such evaluation part of the local siting

authority’s review. Rather, Criterion (iii) is concerned with an independent

review of the character of the surrounding area and its compatibility with the

proposed use. [WM Br. at 12-13, citing Hoesman v. City Council of the City of

Urbana, PCB 84-162, slip op. at 10-11 (Mar. 7, 1985)]. That compatibility

evaluation cannot be negated by issues relating to construction, operation or

design. [WM Br. at 13, citing Hoesman

, PCB 84-162, slip op. at 10-11].

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40

Waste Management maintains that it provided such an “independent assessment” and “a

determination of compatibility was made.” WM Br. at 13.

Second, Waste Management asserts that petitioners’ incompatibility argument is “based

on the incorrect statement that American Indian Mounds are located within the Facility

boundary.” WM Br. at 13. According to Waste Management, not only did petitioners present no

evidence at the City hearing to support their claim of on-site Mounds, but nothing contained in

the siting application or presented by Waste Management at hearing supports the claim.

Id

.

Waste Management therefore argues that this claim of petitioners “should be disregarded as

unsupported conjecture that is insufficient to warrant a reversal of the City’s finding that [Waste

Management] satisfied criterion (iii).”

Id

.

On the contrary, the record before the City “demonstrates that American Indian Mounds

are not located within North Milam,” according to Waste Management. WM Br. at 13. Waste

Management notes that it included, in its siting application, “information concerning the

archaeological investigation at North Milam, namely, the Burns & McDonnell report.”

Id

. That

report, continues Waste Management, identified sites of archaeological interest that were

discovered during the surveys and concluded that all identified sites were “fully investigated or

avoided.”

Id

., citing C0718-20. Waste Management adds that Burns & McDonnell submitted

additional materials as public comment “to clarify that no mounds have been located within

North Milam and there are no known burial sites within the Facility.”

Id

., citing C1591-93.

Waste Management further responds that regarding the specific sites referred to by petitioners

(sites 1316, 1385, 1375), the public comment of Burns & McDonnell:

clarified that: (i) site 1316 is not within North Milam’s footprint, and in any event,

it will be avoided for any future activity and there were no burial features at the

site; (ii) site 1385 is not on [Waste Management]-owned property and is 1,000

feet from North Milam’s boundary; and (iii) site 1375 also is outside North

Milam, is protected by a fenced 75-foot buffer fence, and the ridge associated

with this site has gone through a complete Phase 3 mitigation. WM Br. at 13-14,

citing C1592-93.

Waste Management accordingly concludes there is sufficient evidence to demonstrate

that it “has made sufficient efforts to minimize any incompatibility with archaeologic sites by

mitigating or avoiding any such sites.” WM Br. at 14.

Petitioners’ Reply Concerning Native American Sites.

Disagreeing with Waste

Management’s position that “impacts to these Mounds are irrelevant and not part of the siting

criteria analysis,” petitioners state that the Native American Mounds are “a predominant part of

the surrounding area,” associated with the Cahokia Mounds World Heritage Site. Pet. Reply Br.

at 3, citing C1539, 2069. According to petitioners, neither Hoesman

nor Clutts refutes that “the

Native American Mounds are as much a part of the ‘character of the surrounding area’ as are the

other areas in the vicinity of the proposed landfill.”

Id

. at 5.

Petitioners add that “Waste Management’s disturbance of these sites” has “provoked an

ongoing outcry from the Native American community” and “provoked criticism from persons

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41

who study these Mounds.” Pet. Reply Br. at 3-4. Petitioners quote the following from public

comments received by the City:

The value of Cahokia Mounds . . . is inestimable as both a Sacred Site for

American Indians and an important resource for people throughout the world. . . .

There is no other place in the United States that has a greater claim to importance

as a Sacred Place than does Cahokia. Pet. Reply Br. at 3, quoting Sam Valenti,

American Indian, at C1589.

There are mounds on the land that they want to expand into. There’s also a burial

site and this is very sacred to indigenous people. Pet. Reply Br. at 3, quoting

Deanna Wagner-Brice at C1457.

You’re putting in a landfill next to Cahokia proper and potentially directly on top

of where remains have been discovered. We in contemporary society have a

moral obligation to do the right thing. We wouldn’t do that to a cemetery of

today. Nobody would stand for that. Pet. Reply Br. at 3-4, quoting Carrie

Wilson, consultant for the Osage Nation, at C2153 (

St. Louis Post-Dispatch

,

January 18, 2007 “Proposed landfill expansion runs afoul of Native American

activists” by Adam Jadhav).

[I]f you do this landfill, you are – you are digging into our ancestors, you are

desecrating our ancestors, especially these burials. It’s like me going to a

cemetery and dig up your relatives, your families, your relatives and take them

out to do a landfill so the City can make money out of this . . . . This affect [sic]

us indigenous people, our native people all over the world. Pet. Reply Br. at 4,

quoting Ruben Aguirre, member of the Tongva Nation, at C1459.

In addition to this garbage adversely affecting one of Illinois[’] most important

tourist attractions, two pre-Columbian mounds associated with the Cahokia

mounds culture are located within the proposed area of development, as is another

site containing human remains and other features such as houses that are

significant. Pet. Reply Br. at 4, quoting John Kelly, Ph.D., Archaeologist,

Assistant Director, Powell Archaeological Research Center, at C2069.

[T]he identification of two pre-Columbian mounds within the proposed

development, and recovery of human remains from a site that has been

determined eligible for inclusion on the National Register of Historic Places, are

additional reasons that consideration be given to finding another location for the

St. Louis region’s garbage. Pet. Reply Br. at 4, quoting Cahokia Archaeological

Society, at C2074.

Finally, petitioners insist that they showed in their opening brief that Waste Management

“encountered Native American sites (sites 1316, 1375, and 1385) at the proposed landfill site.”

Pet. Reply Br. at 3. Contrary to Waste Management’s conclusion that “Mounds are not located

within North Milam,” petitioners argue “that is not what the record shows.”

Id

. at 5. Moreover,

---

42

conclude petitioners, “whether some of the Mounds are onsite or offsite, Waste Management’s

actions to develop the proposed landfill have disturbed these sites.”

Id

., citing C1592, 1593,

2084, 2087, 2095.

Impact of North Milam on the Cahokia Mounds

Petitioners’ Position Concerning Cahokia Mounds.

Petitioners state that North Milam

is within 2,140 feet of the “Cahokia Mounds World Heritage Site and National Historic

Landmark Boundary.” Pet Br. at 8. Cahokia Mounds is recognized as a State Historic Site; a

National Historic Landmark; and a UNESCO World Heritage Site.

Id

., citing C1544. It

therefore comes as no surprise, according to petitioners, that the siting of North Milam is

opposed both by the Cahokia Archaeological Society because of the landfill’s “potential impact

on Cahokia Mounds” (

id

., C2074) and by “the contemporary American Indian community” (

id

.,

citing C1459, 1589, 2069).

Petitioners further note that the Powell Archaeological Research Center opposes North

Milam’s siting (1) because of the importance of Cahokia Mounds as “an American Indian

Cultural Site, a past ritual center for ancient Americans, a sacred site to contemporary Indians,

and a valuable source of tourism for the state of Illinois”; and (2) because “objectionable smells,

sights and sounds associated with the proposed landfill would detract from the overall experience

of visitors to the Cahokia Mounds Heritage Site.” Pet. Reply Br. at 8, citing C2069.

Waste Management’s Response Concerning Cahokia Mounds.

Waste Management

argues first that the potential “impact” or “effect” on Cahokia Mounds is not part of the Section

39.2(a) siting criteria, and second that petitioners failed to present any evidence of negative

impact or adverse effects on Cahokia Mounds. WM Br. at 14. Specifically, states Waste

Management, whether North Milam has:

any potential negative impact or ‘adverse effect’ on the Cahokia Mounds, as that

term is defined in the regulations of Section 106 of the National Historic

Preservation Act (‘NHPA’), 36 CFR Part 800.5(a)(l), (b), is not relevant to the

local siting process under Section 39.2.

Id

.

Waste Management argues that “it would have been improper for the City to find incompatibility

based on this issue” because Section 39.2(a) requires the local siting authority to base its

approval or disapproval on the nine statutory criteria.

Id

., citing Clutts

, 185 Ill. App. 3d at 546,

541 N.E.2d at 846.

Waste Management also asserts that it would have been against the manifest weight of

the evidence to find North Milam incompatible with Cahokia Mounds. WM Br. at 14.

“Notwithstanding the irrelevance of Petitioners’ argument,” according to Waste Management,

“Schanuel provided evidence that North Milam is compatible with Cahokia Mounds.”

Id

. First,

Waste Management notes that Schanuel determined that “Cahokia Mounds is approximately two

miles away from North Milam to the northeast,” though Waste Management acknowledges that

the Cahokia Mounds World Heritage Site and National Historic Landmark boundaries are 2,140

feet from North Milam.

Id

. at 6, 14, citing C1021. Second, Waste Management states that it was

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43

Schanuel’s determination that Cahokia Mounds is “physically and visually separated” from

North Milam by:

a number of intervening uses including Interstate Highway I-55/70, Illinois Route

111, considerable residential and commercial development in the Village of

Fairmont City, the Cahokia Canal and associated vegetation, and natural areas.

Id

. at 14-15, citing C0462-64.

Third, Schanuel also based his opinion, continues Waste Management, on his consideration of

off-site views of North Milam from Cahokia Mounds, which “showed that the proposed

landform is barely visible from the top of the Mounds.”

Id

. at 15, citing C0472-73, 0477.

According to Waste Management then, petitioners again offered no evidence to refute

Schanuel’s findings or opinions. WM Br. at 15. Waste Management concludes therefore that its

evidence of “compatibility” with Cahokia Mounds “is uncontroverted and was sufficient to

support the City’s finding that [Waste Management] met criterion (iii).”

Id

.

Petitioners’ Reply Concerning Cahokia Mounds.

Petitioners argue that one needs

look no further than the existing landfill, Milam RDF, to find evidence that North Milam is not

“visually separated” from Cahokia Mounds:

You go up on Monks Mound, you look out and you see a landfill and its very

distressing. Some people ask if this is another mound. Pet. Reply Br. at 5,

quoting comment of Deanna Wagner-Brice at C1457.

You go up on Monks Mound and you can see it. Monks Mound is the highest

Native American site. It’s disrespectful to build a landfill higher than that. Pet.

Reply Br. at 5, quoting comment of Jim Bensman, Conservation Chair for the

Piasa Palisades Group of the Sierra Club, at C1469.

Petitioners also quote from the public comment of Dr. Kelly:

The landfill will certainly detract from the overall experience of visitors to

Cahokia Mounds Heritage Site in that it will be a visual detraction, especially

from the top of Monk’s Mound. Pet. Reply Br. at 6, citing C2069.

A landfill “by its very nature is a mound,” note petitioners, and “Monks Mound is the

largest prehistoric earthen construction in the Americas.” Pet. Reply Br. at 6, citing C1547.

Petitioners conclude that it is “simply not possible” to minimize North Milam’s incompatibility

with Cahokia Mounds.

Id

.

North Milam’s Impact on Wetlands

Petitioners’ Position Concerning Wetlands.

Petitioners state that North Milam “will

take 8.5 acres of farmed wetlands and 9.9 acres of forested wetlands.” Pet. Br. at 8, citing

C1929, 1973. Some of these wetlands, according to petitioners, are “moderate to high quality,

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44

forested and scrub-shrub wetland.”

Id

., citing C1933, 1939. Petitioners further note that, in

these wetlands, the quality of the vegetative and wildlife habitat is moderate to high.

Id

., citing

C1939.

Waste Management’s Response Concerning Wetlands.

Waste Management again

makes a two-part argument: first, the potential impact on wetlands is not part of the Section

39.2(a) siting criteria; and second, Waste Management has presented sufficient evidence of

“compatibility” based on its mitigation plans. WM Br. at 15.

Citing Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846, Waste Management reiterates

that it was not required by Section 39.2(a) to “submit evidence to the City about potential

impacts to wetlands in the area.” WM Br. at 15. Despite this, continues Waste Management, the

company:

included in the Application its Section 404 permit application and other relevant

studies and documentation related to its plans to mitigate any negative impacts the

proposed landfill would have on area wetlands. (C 0735-0774.) [Waste

Management]’s plan includes a 2:1 impact-to-mitigation ratio. (C 0736; C 0740-

0742.) Petitioners presented no evidence challenging [Waste Management]’s

plan.

Id

.

Petitioners’ Reply Concerning Wetlands.

According to petitioners, that the wetlands

are subject to a separate review process under the federal Clean Water Act “does not insulate

them from review here.” Pet. Reply Br. at 6. Likewise, petitioners argue, that the Illinois

Department of Natural Resources administers the State’s parks “did not insulate Waste

Management from evaluating the impact of the proposed landfill on Horseshoe State Park.”

Id

.,

n.3, citing,

e.g.

, C0462.

Petitioners assert that the wetlands:

are as much a part of the “character of the surrounding area” as are, for example,

the “natural open areas,” discussed by Waste Management’s consultant in his

report. C 0459. Wetlands provide “fish and wildlife habitats, natural water

quality improvement, flood storage, . . . opportunities for recreation and aesthetic

appreciation . . . Wetlands are among the most productive ecosystems in the

world, comparable to rain forests and coral reefs.” U.S Environmental Protection

Agency,

Wetlands Functions and Values

, online at

http://www.epa.gov/watertrain/wetlands. See also C 2158. Horseshoe Lake and

the area wetlands are on the Mississippi River flyway. C 2164. Pet. Reply Br. at

6-7.

Petitioners maintain that the siting criterion requires Waste Management to “locate the

proposed landfill in a manner that minimizes incompatibility with the surrounding area,

including the wetlands.” Pet. Reply Br. at 7. The 13.9-acre moderate to high quality wetlands

complex, petitioners add, “lies in the central portion of the property.”

Id

., citing C1939.

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45

Petitioners conclude that “[i]t is not possible” to minimize the incompatibility of North Milam

“with these wetlands.”

Id

.

North Milam’s “Compatibility” During the Facility’s Operation

Petitioners’ Position Concerning “Compatibility” During Operation.

Petitioners

note that North Milam is proposed to operate for 17 years. Pet. Br. at 8-9. Waste Management

made no effort, petitioners maintain, to determine whether North Milam would be compatible

with its surroundings “during its operation.”

Id

. at 9, citing C1025-26, 1051. Rather, petitioners

continue, Waste Management’s consultant only evaluated whether the landfill, “after it ceased

operating, would be compatible with the surrounding uses, ignoring the seventeen years (or

longer) when the landfill would be in operation.”

Id

. “For this reason,” according to petitioners,

Waste Management did not assess “smell,” “noise impacts,” or “visual impacts” during North

Milam’s operation.

Id

., citing C1025, 1039, 1051.

Waste Management’s Response Concerning “Compatibility” During Operation.

Waste Management maintains that Schanuel’s evaluation did consider North Milam’s

“compatibility” with the surrounding area not only at closure, but also during operation. WM Br.

at 16. The “End Use Plan,” according to Waste Management, “discussed a phased-in plan for

screening and buffering,” specifically stating that native grasses and wildflowers will be “planted

at the perimeter during the early stages of activity.”

Id

., quoting C0487. Waste Management

states that the End Use Plan further indicated that “other aspects of screening and buffering will

be implemented throughout the life of the Facility, and not just at the end use stage.”

Id

., citing

C0487.

Waste Management also asserts that petitioners did not introduce any evidence that North

Milam would be incompatible with the surrounding area during operations because of

objectionable odors, sights, or sounds. WM Br. at 16. In contrast, according to Waste

Management, the company provided:

ample evidence at the public hearing and in the Application addressing concerns

relating to odor, noise, and litter in connection with the operations assessment

under criteria (ii) and (v).

6

Petitioners do not challenge the City’s findings that

criteria (ii) and (v) were satisfied.

Id

.

The “operational issues” that petitioners raise, Waste Management states, “are not meant

to be determinative of compatibility under criterion (iii).” WM Br. at 16, citing Hoesman, PCB

84-162. The Board in Hoesman explained, maintains Waste Management, that if criterion (iii) is

to be given a meaning distinct from criteria (ii) and (v) of Section 39.2(a), then criterion (iii)

must be interpreted as requiring a review of the proposed facility’s “location in terms of the

character of the surrounding area, and independent of any measures which may be taken to

6

Criterion (ii) requires 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) (2006). Criterion

(v) requires 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.” 415 ILCS 5/39.2(a)(v) (2006).

---

46

mitigate an adverse impact on the area.”

Id

. According to Waste Management, Hoesman

requires that the Board reject petitioners’ argument that the company failed to satisfy criterion

(iii) “by not considering odor, noise or visual impacts as part of its compatibility evaluation.”

WM Br. at 17.

Petitioners’ Reply Concerning “Compatibility” During Operation.

According to

petitioners, Hoesman makes clear that “the future reconstruction or development of the site [is]

irrelevant to the current

compatibility of an operating site

with the surrounding area.” Pet. Reply

Br. at 7, quoting Hoesman

(emphasis added by petitioners). That Waste Management

“mentions” landfill operations during its discussion of criteria (ii) and (v), or “mentions” its

phased-in plan for screening as part of its End Use Plan, does not, in petitioners estimation, “cure

a complete failure” to evaluate the “compatibility” of the landfill during its operation.

Id

.

Board Analysis—Criterion (iii) “Minimize Incompatibility”

Section 39.2(a)(iii) requires, in relevant part, that the applicant demonstrate the following

before the local siting authority:

the facility is located so as to minimize incompatibility with the character of the

surrounding area. 415 ILCS 5/39.2(a)(iii) (2006).

For the reasons below, the Board finds that the City’s determination that Waste Management met

criterion (iii) on “compatibility” is not contrary to the manifest weight of the evidence.

Scope of “Compatibility” Criterion

The Board found above, contrary to Waste Management’s contentions, that the NRHP-

eligible Native American sites associated with Cahokia and the Section 404 wetlands are

relevant to assessing whether North Milam “is located so as to minimize incompatibility with the

character of the surrounding area.” Clutts does not dictate a different result. The court’s holding

there, that Section 39.2(a) does not require the proposed facility to be built in the “best” place,

has no bearing on whether these Native American sites and wetlands are relevant to the

”compatibility” criterion in this case. Clutts, 185 Ill. App. 3d at 547, 541 N.E.2d at 846.

The same analysis applies with respect to the Cahokia Mounds World Heritage Site and

National Historic Landmark. That the issue of any potential “adverse effect” on Cahokia

Mounds from North Milam may be separately reviewed under Section 106 of the NHPA does

not render the Cahokia Mounds any less relevant to the “character of the surrounding area” here.

It is undisputed that North Milam is approximately 2,140 feet from the boundary of the Cahokia

Mounds World Heritage Site and National Historic Landmark. In Waste Management

, 123 Ill.

App. 3d 1075, 463 N.E.2d 969, the court affirmed the Board’s finding that the 500-foot study

area used to assess “compatibility” with the character of the surrounding area was inadequate:

We agree with the PCB that the compatibility with the area of a landfill site

should be demonstrated by a study based upon an area greater than 500 feet

surrounding the proposed facility. In this case, for example, the facility when full

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47

will remain in the area as a 30-acre mound with a height above grade of 70 to 90

feet. *** [T]he PCB justifiably observed that “in this case a 30-acre mound with

a height above grade of 70-90 feet would generate an effect upon the surrounding

area to a greater extent than 500 feet.” Waste Management

, 123 Ill. App. 3d at

1088-89, 463 N.E.2d at 979.

North Milam is planned to be a 119-acre mound with a height above grade of 188 feet, and it is

not contested that the North Milam landform will be visible from the top of Monks Mound.

C0476, 0484. The Board finds that the Cahokia Mounds site, as a State Historic Site, National

Historic Landmark, and UNESCO World Heritage Site, is a relevant consideration in assessing

whether North Milam “is located so as to minimize incompatibility with the character of the

surrounding area.”

Proof Required on Criterion (iii) “Minimize Incompatibility”

Concerning what an applicant must demonstrate to satisfy criterion (iii), the court in File

held that the criterion:

requires an applicant to demonstrate more than minimal efforts to reduce the

landfill’s incompatibility. An applicant must demonstrate that it has done or will

do what is reasonably feasible to minimize incompatibility. (

Waste Management

of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1090,

463 N.E.2d 969, 980

.) Furthermore, an applicant should not be able to establish

compatibility based upon a preexisting facility. (

Waste Management of Illinois,

Inc., 123 Ill. App. 3d at 1088, 463 N.E.2d at 979

.) It is important to note,

however, that the statute does not speak in terms of guaranteeing no increase of

risk concerning any of the criteria.

City of Rockford v. Pollution Control Board

(1984), 125 Ill. App. 3d 384, 390, 465 N.E.2d 996, 1001

. File, 219 Ill. App. 3d at

907-08, 579 N.E.2d at 1236.

In Tate

, the court commented on Waste Management, 123 Ill. App. 3d 1075, 463 N.E.2d 969,

which:

discussed the type of evidence which might appropriately be considered with

reference to minimizing the impact of the proposed facility to the surrounding

area. However, it is logical to require this evidence to be presented only if there is

indeed some incompatibility with the surrounding area shown to exist. Tate

, 188

Ill. App. 3d at 1025, 544 N.E.2d at 1197.

In Clutts

, the court stated:

the law requires only that the location minimize incompatibility and effect on

property values, not guarantee that no fluctuation will result; nor does the statute

require the facility to be built in the “best” place. Clutts, 185 Ill. App. 3d at 547,

541 N.E.2d at 846.

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48

Finally, the Board notes that the parties mistakenly cite, as the Board’s decision in

Hoesman, what is actually an opinion written by two Board Members in that case.

See

Hoesman, PCB 84-162 (Mar. 7, 1985) (opinion by Dumelle and Forcade). In fact, as noted at the

outset of that two-Member opinion, there was no majority Board opinion in Hoesman

. Instead,

siting was deemed approved by operation of Section 40.1(b) of the Act when the Board

“deadlocked,” unable to reach a final decision by the statutory deadline.

See

Hoesman

, PCB 84-

162 (Mar. 7, 1985) (order by Dumelle).

Buffers Between North Milam and Horseshoe Lake State Park

At the City hearing, Andria, President of the American Bottom Conservancy and

Conservation Chair of the Sierra Club Kaskaskia Group, provided comment concerning what she

perceived as North Milam encroaching on Horseshoe Lake State Park:

Now [after Milam RDF] they want to go on the other side and that whole

peninsula thats surrounded by the oxbow lake of Horseshoe Lake is -- is

threatened. All of that open space, all of that green space with the fish and

wildlife area that’s so much a part of -- important part of Horseshoe

Lake. There are 308 species of birds there. There are so many butterflies that

people come all over for that. *** There are a lot of people who come over from

St. Louis to Horseshoe Lake. But not a landfill. C1478-79.

Andria urged the City to “respect Horseshoe Lake,” noting that there are 350,000 or 360,000

people who go there annually, including people who fish all around the lake. C1479;

see also

C1536-37 (Madison County Transit 2006 Bikeway Map & Trail Guide); C1538-39 (Horseshoe

Lake State Park brochure). In written public comment filed with the City, Andria stated:

The proposed site is within 2100 feet of Horseshoe Lake—and the landfill could

well expand beyond the proposed 119 acres, as has the existing Milam landfill

expanded countless times. People fish, walk trails, observe nature, hunt, picnic

and camp at Horseshoe Lake. *** People fishing, camping, walking trails,

observing nature and picnicking will undoubtedly be subjected to the stench from

the proposed landfill, which would be even closer to them [than Milam RDF] and

immediately upwind of Horseshoe Lake. A landfill is incompatible with a state

park and would minimize its value. C2157.

The Piasa Palisades Group of the Sierra Club also filed a public comment regarding these

concerns:

There are negative cumulative impacts associated with developing a new landfill

adjacent to Horseshoe Lake State Park. Many visitors from Missouri and

throughout the state come to watch birds, camp, fish and hunt at the state park.

They shop at local stores, eat at local restaurants, stay at local motels. Ecotourism

is one of the biggest industries in the state. A landfill could impact both wildlife

and tourists from the area with a resultant loss in revenue. C2072-73.

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49

Schanuel, a community and land planning professional consultant for twenty-four years,

testified at the City hearing on behalf of Waste Management about whether North Milam is

located so as to minimize incompatibility with the character of the surrounding area. Schanuel’s

report was part of the siting application. Schanuel evaluated land use within an approximately

one-mile radius, as well as existing municipal and county zoning and comprehensive land use

plans. Schanuel also prepared an “End Use Plan” and compared existing off-site views to the

proposed end use of the landform. According to Schanuel, North Milam “is compatible with the

character of the surrounding area.” C0489.

Schanuel stated that “farm fields and natural open space are the predominant land uses

located within a one-mile radius of North Milam.” C0448. Schanuel described the area as

predominantly agricultural and open space and recreational (82.4% of the total land area), mixed

with industrial uses (14.6%). Residential uses account for 1.7% of the study area, according to

Schanuel, and commercial uses make up 1.3%. Schanuel added:

Immediately surrounding North Milam are a number of compatible land uses.

These include farm fields, natural open space, railroad tracks, radio towers, an

existing recycling and disposal facility, interstate and state highways, and a

drainage canal. C0458.

Schanuel’s report further stated:

North Milam is bounded by open space and Illinois Route 111 on the eastern

boundary; by the Cahokia Canal and Interstate 55/70 on the southern boundary;

by the Milam RDF, farm fields, and Illinois Route 203 on the western boundary;

and by the Alton & Southern (“A&S RR”) Railroad on the northern boundary.

All of these immediately adjacent land uses, natural features, and man-made

physical improvements serve as land use buffers or transitions between North

Milam and the surrounding land uses.

Id

.

Within the one-mile study area, zoning is “almost exclusively Industrial/Manufacturing,”

according to Schauel’s report. C0468. Schanuel explained that North Milam is in an industrial

zoning category that allows landfills by special permit.

Id

. The 2003 City of Madison Future

Land Use map proposes “Open Space/Agricultural and Industrial” land uses for the study area,

while the 2000 Madison County Land Use Plan map designates North Milam as “Open Space”

and the rest of the study area within Madison County as “Agricultural/Vacant.” C0471. These

land use designations, Schanuel opined, are compatible uses with North Milam.

Id

.

Schanuel commented that located along Horseshoe Lake’s northern and eastern shores, as

well as on an island formed by the lake, are the park’s “recreational amenities,” including five

group picnic shelters, three playgrounds, three small boat ramps, and a fishing pier, 48 tent or

trailer camp sites, four miles of hiking trails, and public waterfowl hunting blinds. The report

states:

While this study recognizes the importance of public parks and open space, from

a land use perspective, North Milam will not be incompatible with the use of the

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50

State Park. Most active recreation is located on the northern end of the park, 1.5

to two miles from North Milam. The Fish & Wildlife Area on the southern end of

the park abuts the A&S RR on the south, buffering it from activities on North

Milam side of the railroad. In addition, new and expanded wetland mitigation

areas will further buffer the recycling and disposal operations physically and

visually from the park, and provide additional habitat for area wildlife. C0462.

Further, the 2000 Madison County Greenways map in the Land Use Plan delineates the

Horseshoe Lake Recreational Area as being bounded by the Alton & Southern Railroad on the

south. These man-made features, according to Schanuel’s report, “serve as strong physical

demarcations between the Open Space/ Recreation/Conservation uses and North Milam.”

C0471.

Schanuel’s report also used a computer-generated elevation model designed to depict

how North Milam would appear in the future from various vantages:

Photographs were then taken of existing conditions for both a leaf-off (January

2006) and a leaf-on (May 2006) condition (Figures 5 and 6:

Existing Views

).

Photographs and geo-spatial locations were used from the photographs taken in

January 2006 to establish the specific location, direction, and elevation of the

actual photographic “view”. These positions were entered into the digital

elevation model that represented the future North Milam landform, and a model

was generated that accurately captured future “views” of North Milam from

plotted positions. C0477.

Nine photographs, or views, were selected to represent North Milam’s future condition.

C0477. View 3 was taken from a location “immediately north of the railroad tracks and North

Milam in a direction looking south toward the Milam RDF.” C0472. View 6 is:

a view to the west from Illinois 111 between I-55/70 and the railroad tracks

looking across Horseshoe Lake at North Milam. Just to the southern edge of the

photo is the Milam RDF. The view includes the lake and natural vegetation in

both the foreground and background. C0473.

Native American Sites

Dr. Kelly, Ph.D., Archaeologist, Assistant Director, Powell Archaeological Research

Center, commented that two pre-Columbian Mounds associated with the Cahokia Mounds

culture “are located within the proposed area of development, as is another site containing

human remains and other features such as houses that are significant.” C2069. “All are

eligible,” according to Dr. Kelly, “for inclusion on the National Register of Historic Places and

have protection under Illinois law.”

Id

. The Cahokia Archaeological Society also referred to the

identification of two pre-Columbian Mounds “within the proposed development,” as well as

“human remains from a site that has been determined eligible for inclusion on the National

Register of Historic Places.” C2074.

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51

Wagner-Brice commented that there are “mounds on the land” that Waste Management

wants “to expand into” and there is also a “burial site” and this is “very sacred to indigenous

people.” C1457. Wilson, a consultant for the Osage Nation, stated that Waste Management is

“putting in a landfill . . . potentially directly on top of where remains have been discovered.”

C2153. Aguirre of the Tongva Nation from California commented that if Waste Management

proceeds with North Milam, it would be “digging into [and] desecrating our ancestors, especially

these burials.” C1459.

Andria commented at the City hearing:

I’ve been in touch with Illinois Historic Preservation Agency. The archaeological

work that’s been done on this site is not adequate. It has not been performed

correctly. It’s -- There are several sites that are -- I think there are three mounds

from I can understand and one burial site that I don’t believe is a mound, but it’s a

burial site. We shouldn’t be even thinking about putting a landfill there. Digging

that stuff up, digging that stuff, digging the remains of -- of human beings, of

ancestors of people as Mr. Aguirre said. *** It’s not only their culture. It’s their

history. It’s the history of all of our area and it’s very important. And when you

dig something up to get rid of it to put a landfill, to dig up the soil, to cart it off to

put it on top of garbage, that is really truly the height of disrespect. C1471-72.

In written comment filed with the City, Andria provided a coroner’s report that was also included

in a Waste Management public comment (C1912-27):

I am forwarding a copy of a Madison County Coroner’s Report, Case Number 06-

0018—“Bone Case”—which I today obtained from the Coroner’s office. This

document proves that the North Milam site does indeed contain an ancient Indian

burial site. In addition, there are at least nine sites and several mounds identified

by Burns & McDonnell, the archeology firm hired by Waste Management.

Although a Phase 1 has been completed, the Phase II is incomplete and thus

additional burial areas may be present on the property. Given the state of

knowledge with at least one burial and several mounds, Waste Management

should vacate this project out of respect for American Indians and their ancestors.

This is even more so because the intended purpose of the site—as you now

know—is to construct a new landfill, which would in effect be putting garbage on

sacred Indian grounds. *** There are . . . a number of other serious problems

with the archeological investigation at this site. C2078.

The referenced report of the Madison County Office of the Coroner stated that the bone

uncovered was a human skull and “[i]t was determined the skull may be ancient.” C2084

(investigative report);

see also

C2081 (preliminary report noted that “[t]he skull appeared to be

ancient.”). In another written public comment to the City, Andria added:

The site itself has been identified by archeologists hired by Waste Management as

being eligible for the National Historic Registry. Indian remains have been found

at the site. *** A landfill is clearly NOT compatible with the character of not

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52

only the surrounding area but of the site itself. Putting garbage on a site sacred to

Native Americans is an outrage—and you should not be complicit in allowing that

to happen. C2157 (emphasis in original).

Waste Management concedes that its consultant encountered three NRHP-eligible sites.

According to Waste Management, while site 1316 is within the boundary of North Milam, sites

1375 and 1385 are located off-site. WM Br. at 13-14. At various times from September 2002 to

June 2006, Burns & McDonnell performed archaeological investigations on behalf of Waste

Management in and around North Milam. C0719. As discussed above, a Burns & McDonnell

report was part of the siting application.

Burns & McDonnell stated that its archaeological investigations consisted of Phase I

Surveys, Phase II Surveys, and a Phase III Survey. The latter is also known as “mitigation.”

C0719. The Phase I Surveys, explained Burns & McDonnell, involved “walking the site on a

five meter interval to collect any artifacts that were present at the ground surface,” and included

the services of a soil scientist known as a geomorphologist, who assisted by “advising the

archaeologists on the potential of the soils to contain buried artifacts.”

Id

. The primary purpose

of the Phase I Surveys, according to Burns & McDonnell, was “to determine if additional

investigation was needed to determine if potential sites contained intact historic information.”

Id

. Burns & McDonnell added that the Phase I investigations also included:

archival research of the files held at the Illinois Historic Preservation Agency,

state and local libraries, and review of published sources to obtain historic maps,

documents, and information on previous archaeological investigations and

recorded sites. The data obtained was used to assist the investigators in

establishing a historical context for all the cultural resources encountered, thus

allowing for a thorough evaluation of the cultural resources investigated during

this and the following phases of investigation. C0719.

Burns & McDonnell explained that the Phase II Surveys consisted of “the testing (using

backhoe trenches) of selected sites” that might “contain historical information and whose

importance could not be determined during the Phase I Surveys.” C0719. The Phase III Survey,

or mitigation, involved “excavating and recovering any information and artifacts from the site

identified in the Phase II Survey that was determined to warrant additional review.”

Id

.

According to Burns & McDonnell, out of the 11 “potential archaeological sites”

identified by the Phase I Surveys:

a portion of one site was avoided and fenced because the slightly elevated ground

on which the old Dorris House was located could potentially be a mound. This

area is not within the North Milam site. C0719.

Five of the potential archaeological sites warranted and received Phase II Surveys. The

remaining potential sites, Burns & McDonnell noted, were “excluded from additional work

because they were destroyed by past farming activities, contained little intact information or

---

53

were outside of the North Milam site.” C0719. The Phase II Surveys of the five sites indicated

that:

one of the five remaining potential archaeological sites was located north of the

North Milam site and would be avoided, two of the potential sites contained very

little intact information, one potential site contained intact soil stains identified by

the archaeologists as features which were excavated and the data recovered during

the Phase II investigation, and one site that would require a Phase III Survey.

Id

.

Burns & McDonnell stated that the archaeological site for the Phase III Survey was

“located immediately east of the old Dorris house” referred to above. C0720. The disturbed soil

or “plowzone” was removed because of agricultural activities over the last 150 years and the soil

structure.

Id

. Removal of the plowzone, Burns & McDonnell explained, “revealed 77 soil stains

labeled as features”:

Three of the features were historic and one was determined to be a modern rodent

den. The remaining features were associated with the prehistoric occupation of

the site. The features were interpreted to be storage pits, middens or trash pits,

post molds (stains left where posts were placed in the ground), house trenches

(prehistoric trenches for house construction), and small basins that could be the

bottom of pits or possible fire hearths.

Id

.

According to Burns & McDonnell, the following artifacts were recovered:

• Stone Hoe - A large stone hoe was found in one of the larger storage pits. This

tool was made from a chert called Mill Creek.

• Ceramic Figurine – In another pit a ceramic figurine was recovered. This

ceramic piece lacked hands, feet, and the head.

• Marine Shell Beads – A few beads made from marine shell were recovered from

some of the storage pits. Evidence of production of these beads was also found.

• Variety of Ceramic Shards – A number of ceramic shards from vessels, funnels,

and platforms (stumpware) were recovered from the site. The ceramic shards

were generally 1 to 3 inches in size with some of the shards having painted slips

or decorated exterior surfaces. C0720.

In the report included with Waste Management’s siting application, Burns & McDonnell

concluded that “all of the sites that were identified within the project area have been fully

investigated or avoided.” C0720. Further, according to Burns & McDonnell, all work was

conducted to:

professional standards and guidelines in accordance with the

Secretary of the

Interior’s Standards and Guidelines for Archaeology and Historic Preservation,

(48 FR 44742-44742), the

Secretary’s Standard for Identification

(48 FR 44720-

44723), and the Illinois State Agency Historic Resources Preservation Act (State

707, Public Act 86-707, 20 ILCS 3425).

Id

.

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54

Orval E. “Dan” Shinn, the Cultural Resource Department Manager of Burns &

McDonnell, submitted a public comment to the City after hearing, consisting of a letter and six

attachments. Shinn first noted that he has 18 years of experience in Cultural Resource

Management under Section 106 of the NHPA, “which includes archaeological investigations

performed to the standards and guidelines of the Secretary of the Interior, and evaluations under

36 C.F.R. 60.4.” C1591. Shinn reiterated that based on the performed “Phase I Cultural

Resource Identification Surveys, Phase II [NRHP] Testing and Phase III Mitigation,” Waste

Management “has met the standards established by Section 106 of the NHPA and the State of

Illinois.”

Id

. Shinn also explained that the public comment was being submitted because Waste

Management had requested that he “describe the extensive work that has been done to clarify or

correct any suggestions to the contrary made by the objectors at the public hearing.”

Id

.

Shinn stated that in October 2002, a Phase I Survey entitled “Archaeological Survey

Short Report” (“Dorris Report”) was submitted to the Illinois Historic Preservation Agency

(IHPA). C1591, 1594. The Dorris Report found, in part, that five sites were not eligible for the

NRHP and that one site (“11 MS 1375”) was eligible. In September and October 2004, the

Madison City Property and North Milam revised short reports were submitted to IHPA.

Id

. The

Madison City Property Report found, among other things, that site “11 MS 1385” was “eligible,

but much smaller then previously recorded.” C1591-92. For site 11 MS 1385, “[a]voidance . . .

was recommended and implemented by [Waste Management].” C1592. The North Milam

Report recommended that site 11 MS 1316 receive “additional testing to determine NRHP

eligibility.”

Id

.

In January 2005, the Phase II evaluation of site 11 MS 1316 was submitted to

IHPA, according to Shinn. “Site 11 MS 1316 was determined eligible, and a mitigation plan was

included to conduct data recovery on the south portion of the site.” C1592. Shinn stated that in

August 2005, Waste Management and Burns & McDonnell met with IHPA in Springfield, at

which time it was agreed that:

• the site 11 MS 1375 mound would be protected by a fenced 75 foot buffer;

• sites 11 MS 1316, 11 MS 2043, 11MS 2045, 11 MS 1373 and 11 MS 1375

(area outside buffer) would be tested using mechanical stripping of the plow zone,

and mitigated if necessary; and

• [Waste Management] would submit an excavation plan for the Madison City

Property, and monitor the installation of the 75 foot buffer fence.

Id

.;

see also

C

C1908-11 (Sept. 29, 2005 letter from Shinn to IHPA describing agreements made

at meeting).

In November 2005, Burns & McDonnell monitored the installation of the 75-foot buffer

fence around the Mound of 11 MS 1375. C1592. Over a five-month period culminating in June

2006, sites 11 MS 1316, 11 MS 2043, 11 MS 2045, 11 MS 1373, and 11 MS 1375 were tested,

and site 11 MS 1375 was mitigated.

Id

. Sites 11 MS 2043, 11 MS 2045, and 11 MS 1373 were

determined to be ineligible.

Id

. At site 11 MS 1316, twenty-six archaeological features and four

architectural features were exposed. Shinn stated that these features were “mapped,

photographed and covered.”

Id

. In addition, during “mechanical stripping” of 11 MS 1316:

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55

a possible human skull was identified. IHPA and the Madison County Coroner

were notified, and all work at the site ceased pending response from those

agencies. The County Coroner assumed jurisdiction and removed the skull. A

Burns & McDonnell archaeologist was present and observed the Coroner’s

removal of the skull. No burial features were observed. [Waste Management]

elected to avoid site 11 MS 1316. C1592-93.

At site 11 MS 1375, seventy-four archaeological features and three architectural features were

found and excavated. “Mitigation in the form of data recovery was conducted.” C1593.

In the public comment, Shinn’s letter concluded:

While it is certain the investigated prehistoric sites are associated with Cahokia,

Burns & McDonnell’s extensive archaeological investigations of the North Milam

site concluded that only truncated/heavily damaged features remain. No intact

living floors were found. This confirmed what the geomorphology in the prior

reports had indicated. In addition, the North Milam site is well outside the

established boundaries of the Cahokia National Landmark/World Heritage site.

In summary, [Waste Management] has met or exceeded the standards and

guidelines of both the Secretary of the Interior and the State of Illinois for cultural

resource investigation, [Waste Management] has avoided or mitigated all NRHP-

eligible historic properties within the proposed disposal area. In addition, I do not

believe there are any burial sites within the proposed disposal area. C1593

Cahokia Mounds

Andria filed a public comment with the City concerning Cahokia Mounds:

The location of the proposed site is within a half-mile of the Cahokia Mounds

World Heritage and National Historic Registry boundary. It is the Metro East’s

most important asset. *** Locating another mammoth landfill, even closer to the

Cahokia Mounds boundary, denigrates the importance of the Mounds. The

existing Milam landfill is already taller than Monks Mound, the largest prehistoric

earthen mound in North America. A landfill is clearly incompatible with

Cahokia Mounds and minimizes its value. C2157.

The Piasa Palisades Group of the Sierra Club also filed a public comment with the City

addressing this issue:

The site was once part of the prehistoric city called Cahokia and undoubtedly

contains important prehistoric resources. The proposed site is very near Cahokia

Mounds, which has been designated by the United Nations as a World Heritage

Site and as a National Historic Landmark by U.S. Department of Interior. We

understand there are important prehistoric Indian cultural resources, including

perhaps a burial mound and cemetery on the site, which will be adversely

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56

impacted by both the soil removal and the development of a landfill. There

should be consultation with IHPA and appropriate tribal consultation. Allowing

such desecration would be against the public interest and show immense

disrespect for Native American peoples, their culture and heritage. Clearly, the

[s]iting should be denied on this basis alone. C2073.

Wilson, a consultant for the Osage Nation, “which claims ties to the inhabitants of

Cahokia Mounds,” stated that Waste Management is “putting in a landfill next to Cahokia

proper.” C2153. Wagner-Brice found it distressing to be able to see a landfill from Monks

Mound, noting that people ask if Milam RDF is one of the Cahokia Mounds. C1457;

see also

C1469 (Bensman of Sierra Club commenting that it is disrespectful to build a landfill taller than

Monks Mound), C1540-47 (Cahokia Mounds State Historic Site internet pages and brochures).

Dr. Kelly opined that the landfill would certainly detract from the overall experience of visitors

to Cahokia Mounds Heritage Site, particularly from the top of Monks Mound. C2069.

Schanuel’s report noted that Cahokia Mounds is the site of “one of the largest prehistoric

Indian cities north of Mexico” and that the historic site “protects features of this Mississippian

city which was the center of a complex region of satellite communities, connecting roads, and a

vast trade system.” C0462. According to Schanuel, since the purchase and dedication of the

historic site in 1931, the site has been “impacted by Interstate highway construction, and

continued residential, commercial, and industrial development.”

Id

. The current site contains

“an Interpretive Center and various outdoor amenities for walking tours of the grounds.”

Id

.

The “significance of the activities and on-going research being conducted at Cahokia

Mounds” is recognized by Schanuel’s study, but he maintains that preservation of the historic

site will depend on “acquisition of adjacent properties and continued efforts to protect the site

from incompatible adjacent uses.” C0462. Schanuel emphasizes that North Milam and the

Cahokia Mounds State Historic Site are:

physically and visually separated by a number of intervening uses including I-

55/70, Illinois 111, considerable residential and commercial development in the

Village of Fairmont City, the Cahokia Canal and associated vegetation, and

natural areas.

Id

.

View 7 in Schanuel’s report provided the computer-generated North Milam landform in:

a broad view of the American Bottoms looking westward from the top of Monks

Mound in the Cahokia Mounds State Historic Site. From this perspective, the St.

Louis skyline is visible to the southwest, the Milam RDF is visible to the west,

and North Milam would be to the northwest. C0473.

Wetlands

Citing the flood of ’93, Bensman, Conservation Chair for the Piasa Palisades Group of

the Sierra Club, commented at the City hearing that wetlands are too important for water storage

during flood events to allow “putting a landfill in a wetland.” C1467-68. Andria echoed the

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57

sentiment, citing the floods of ’93 and ’95, adding that “one acre of wetlands can hold one to 1.6

million gallons of water.” C1477. She further commented:

when you take away that sponge and you put something on top of it, that water

has to go somewhere and that water is going to go elsewhere and start flooding

somewhere else.

Id

.

Andria also filed a public comment with the City concerning wetlands:

The proposed location would destroy 18 acres of wetlands. *** Wetlands are

valuable in flood control, able to hold more than a million gallons of stormwater,

floodwater or snowmelt per acre. The area has been declared a federal disaster

area for flooding a number of times. Destroying wetlands and adjacent farmland

would remove 119 acres of flood storage, with the potential for many more acres

that would be lost in future expansion of the landfill. Destroying wetlands to site

a landfill is not compatible with the existing use of the site and the surrounding

area and would minimize its value. C2158.

In another public comment filed with the City, the Piasa Palisades Group of the Sierra

Club stated:

Destruction of wetlands to provide soil for landfill cover and landfill space is not

in the public interest. It is only in the company’s economic interest and for its

convenience. [Waste Management] has allowed outside entities to remove soil

from its wetland mitigation and its other properties in, adjacent to or near the

subject area—to be hauled and used offsite, unrelated to any Milam activity. This

is all the more disturbing because of the potential existence of cultural resources

and perhaps cemeteries. This activity negates the economic benefits/need claimed

by Waste Management to justify its desire to destroy wetlands. The immediate

soil removal would destroy 18.4 acres of wetlands in the “proposed activity area,”

according to the [Waste Management] mitigation document. One acre of

wetlands can hold up to 1.6 million gallons of water—floodwater, stormwater,

and snowmelt. Areas around the site have flooded and are documented by the

Corps and pictures of Cahokia Canal. The American Bottom has repeatedly been

declared a federal disaster area for flooding. C2072.

Waste Management’s siting application, which was submitted to the City on September

22, 2006, included documentation concerning wetlands, noting that North Milam and the Fowles

Mitigation Property are located west and north of Milam RDF. Approximately 26.8 of North

Milam’s 222 acres are wetlands. C0723. Waste Management proposed to excavate and remove

soil from North Milam to use as cover material on Milam RDF. As a result of this activity, 18.4

acres of wetlands on North Milam would be impacted.

Id

.

Waste Management’s siting application provided, specifically, an April 2005 submittal to

the Corps, setting forth a permit application under Section 404 of the federal Clean Water Act,

which included a January 2005 wetland delineation and assessment report and a March 2005

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58

mitigation plan. C0736-74. An alternatives analysis under 40 C.F.R. 230.10(a) was also

included, by which:

no discharge of dredged or fill material shall be permitted if there is a practicable

alternative to the proposed discharge which would have less adverse impact on

the aquatic ecosystem, so long as the alternative does not have other significant

adverse environmental consequences. C0738.

In its alternatives analysis, Waste Management stated that the North Milam activities

would be directly associated with daily operation of the adjacent Milam RDF, which “requires

large amounts of soil for daily cover.” C0738Movement of soil from North Milan to Milam

RDF could be accomplished with “no truck travel over public roadways, and a haul distance of

less than one mile.”

Id

. According to the alternatives analysis:

Complete avoidance of all wetlands in the proposed activity at North Milam is not

feasible due to their scattered locations. Over 31% of the wetlands on this parcel

will be avoided, however (8.4 acres of the 26.8 total acres of wetland on the

property). The only alternative for the proposed impacts would be to purchase an

equal-sized parcel of land elsewhere that would yield less wetland impact. Since

Waste Management . . . already owns the North Milam parcel, purchase of new

land would incur an expense of approximately $1,665,000 (222 acres at $7,500

per acre), assuming a parcel this large could be found with few jurisdictional areas

present. Any new parcel would be considerably farther from the RDF than North

Milam, resulting in substantial additional expense for trucking, fuel usage, wear

on public roadways, etc.

Id

.C0738.

The mitigation plan included in the siting application stated that five wetlands and two

wetland ditches were identified on North Milam, and that “[i]mpacts to a total of 18.4 acres of

wetland will occur.” C0741. According to the plan:

A total of 8.5 acres of farmed wetland (all or parts of Wetlands 1-4 and two

wetland ditches), and 9.9 acres of forested and scrub/shrub wetland (Wetland 5)

comprise the impacted wetland area. Avoidance of jurisdictional areas was a

design criterion for the proposed facility, and impacts have been minimized to the

extent possible. A total of 8.4 acres of wetland (Portions of Wetlands 1 and 5

north of the gas pipline) will be avoided, and preserved without impacts.

Mitigation for these wetland impacts is proposed in upland areas located in the

northern portion of the subject property, and on the adjacent Fowles property,

where wetland mitigation from past [Waste Management] projects has already

been constructed in some areas. Most areas proposed for mitigation currently

consist of actively farmed or fallow agricultural land, although small areas

of woodland and an abandoned farmstead also lie within the proposed mitigation

area. C0741.

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59

The mitigation plan further stated that mitigating the wetland impacts would be accomplished by

“constructing forested wetland, emergent wetland, and open water.” C0741. A mitigation ratio

of:

2.00:1 for forested wetland impacts (19.8 acres of creation/9.9 acres of impact),

and a 1.51:1 mitigation ratio for farmed wetland impacts (12.8 acres of

creation/8.5 acres of impact) is proposed, along with creation of 8.1 acres of open

water, lacustrine habitat on the Fowles property for which 50% mitigation credit

is proposed (8.1 acres x 0.5 = 4.05 acres mitigation credit). These mitigation

ratios were chosen after preliminary consultation with the U.S. Army Corps of

Engineers, and result in an overall wetland mitigation ratio of 36.65 acres of

creation/18.40 acres of impact, or 2.0:1. C0741-42.

The forested and emergent wetland creation areas, according to the mitigation plan,

would be placed in a “permanent conservation easement” and upon their completion, deeded to a

local governmental entity. C0742. In addition, undisturbed portions of Wetlands 1 and 5

totaling 8.4 acres would also be included in the easement. The proposed mitigation area:

lies in a relatively isolated location near Canteen and Horseshoe Lakes. These

lakes provide substantial habitat for water-dependent flora and fauna, and the

proposed mitigation areas will provide an extension of this habitat.

Id

.

Also included in the siting application is a September 14, 2006 “biological opinion,”

issued by the U.S. Department of the Interior, Fish and Wildlife Service (Service). The opinion

addresses the effects on the “threatened decurrent false aster (

Boltonia decurrens

)” from the

proposed activities in jurisdictional wetlands under the Corps’ pending permit. C0722-34. The

Service concluded:

After reviewing the current status of

Boltonia decurrens

, the environmental

baseline for the action area, the effects of the proposed action and the cumulative

effects, it is the Service’s biological opinion that the action as proposed is not

likely to jeopardize the continued existence of the

Boltonia decurrens

. No critical

habitat has been designated for this species; therefore, none will be affected.

C0727-28.

Scott Harding, a soil scientist with SCI Engineering, Inc. (SCI), filed a public comment

after hearing. The comment consisted of a letter with 13 attachments. Harding has 12 years of

experience in “wetland delineation and 404/401 permitting.” C1929-30. SCI was retained by

Waste Management to review the “North Milam property and the Fowles property wetland

delineation, permit application and wetland mitigation plan.”

Id

. Harding stated that Waste

Management:

has submitted an effective wetland mitigation plan for the site, and the Illinois

Environmental Protection Agency (IEPA) has issued a Clean Water Act Section

401 Water Quality Certification. On that basis, I fully expect that the United

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60

States Army Corps of Engineers (CE) will issue a Section 404 permit in January

2007.

Id

.

According to Harding, after “certain references to Section 404 permitting and wetlands at the

subject site were made by objectors” during the City hearing, Waste Management requested that

he submit the public comment to “provide facts and information that will clarify the status of the

404/401 permits and correct any unfounded impressions created by the objectors.”

Id

.

Harding noted the wetland delineation and assessment report prepared for North Milam

in January 2005, as well as the March 2005 wetland mitigation plan, which proposed to

“compensate for 8.5 acres of farmed wetland and 9.9 acres of forested wetland impacts.” C1929.

The compensation, stated Harding, included 12.8 acres of emergent wetland, 19.8 acres of

forested wetland, and 8.1 acres of open water to be created. In April 2005, also as noted above,

the Section 404/401 permit application, including the alternatives analysis, was submitted to the

Corps.

Id

. Based on the information submitted, the Corps issued a public notice on June 30,

2005. Public comments were received. In a September 2005 response letter, Waste

Management reiterated that alternatives were carefully considered on the basis of cost, logistics,

and wetland avoidance.

Id

.

Responding to IEPA’s review of the project, the mitigation plan was revised and re-

submitted for review in November 2005. The new mitigation plan “changed the mitigation

monitoring from three to five years as requested by IEPA.” C1930. Also in November 2005, the

Illinois Department of Natural Resources (DNR) issued a letter recommending that a “bird

population study” be performed for the North Milam site. In June 2006, a bird population study

was completed by a DNR-approved consultant, identifying no threatened and endangered

species, or any rookeries. The Service had stated in its June 2005 letter that “there is no

designated critical area in the project area at this time” and “suitable habitat for gray bat, bald

eagle, least tern, and pallid sturgeon is not known to occur within the project area.”

Id

.

Because of previous concerns regarding impacts to

Boltonia deccurens

on the adjacent

Fowles Mitigation area, a management plan was developed “to protect or re-establish the plant

Species” and a “management plan activities report” was submitted in December 2005. C1930.

Harding added that once created, wetland mitigation areas for North Milam would be analyzed

for

Boltonia decurrens

re-establishment. The Service, upon completing its formal consultation

on

Boltonia decurrens,

issued a letter in September 2006 determining, as discussed above, that

the proposed actions for the site are not likely to jeopardize the continued existence of

Boltonia

deccurens

.

Id

.;

see also

C0277-78

Responding to IEPA comments, Waste Management, according to Harding, submitted

drawings in September 2006 demonstrating that:

all surface water drainage from the site would be collected, and directed south.

Water is not proposed to drain north or east towards Horseshoe Lake and Canteen

Lake. Upon review of the submitted materials, the IEPA determined that the

proposed activities on the North Milam site could be completed without

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61

impacting surface waters. The IEPA then issued the Section 401 Water Quality

Certification dated November 30, 2006. C1930.

Minimize Incompatibility During North Milam’s Operation

Andria commented at the City hearing about landfill odor concerns:

There’s smell and no one has denied that there are bad smells that come from a

landfill and there are bad smells that will come from this landfill if it’s put and

that will be right next to Horseshoe Lake. The wind comes from that direction

from the southwest is the prevailing wind and that smell, if it goes over a half a

mile to Fairmont City, it will go over to the campground where people are

sleeping all night who don’t know that they’re in the way of a landfill smell.

C1479-80.

In written public comment, Andria added:

The consultant hired by Waste Management admitted that he did not consider

“smell” in his assessment of compatibility. People living in Fairmont City, at

least a half-mile or more away from the existing Milam landfill, have complained

to us about the smell. C2157.

As discussed, Schanuel prepared an “End Use Plan” on behalf of Waste Management,

which is part of his report in the siting application. The plan “portrays methods of screening

North Milam with natural materials from off-site ‘views.’” C0487. The objective of the plan is

to provide “an attractive, natural, visual buffer to assist in blending North Milam into the

character of the surrounding conditions.”

Id

. This objective is, according to the End Use Plan,

accomplished through:

the addition of native trees, grasses, and wildflowers. Shade trees and evergreen

trees will provide the predominant visual buffer. *** Shade trees will be a

minimum of 2 ½” caliper and evergreen trees will be a minimum of 6 feet tall.

*** Native grasses and wildflowers will be planted around the perimeter of North

Milam. Native plants will be used to replicate the character of the natural

landscape in the surrounding area.

The End Use Plan will be enhanced at various locations to screen unobstructed

off-site views and to minimize North Milam’s visual impact on the landscape.

The plant materials will provide a visual buffer at the time of planting and will

continue to mature and grow in height and density over time. The closure ground

cover for North Milam will be seeded with native grasses and wildflowers, similar

to those planted at the perimeter during the early stages of activity, and the

perimeter trees and ground cover will mature and stay in place. C0487.

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62

Board Ruling on Criterion (iii) “Minimize Incompatibility”

Waste Management maintains that issues of NRHP-eligible Native American sites and

Section 404 wetlands, as well as potential “adverse impacts” to Cahokia Mounds, are irrelevant

under Section 39.2(a)(iii) of the Act. Nevertheless, as discussed above, Waste Management

submitted to the City considerable amounts of information about these Native American sites

and wetlands through hearing exhibit and in public comment. Schanuel’s report and testimony

addressed the potential incompatibility of North Milam with Cahokia Mounds, and buffers for

Horseshoe Lake State Park. Petitioners and other objectors expressed opposing views through

hearing exhibits and oral and written public comment.

Contrary to petitioners’ claims, Waste Management also addressed potential

incompatibility

during

North Milam’s operation. It is not dispositive that the section of the

Schanuel’s report is entitled “End Use Plan.” Nor is it critical what Schanuel understood to be

the scope of his engagement. The fact remains that the plan does state that aspects of the

buffering will begin early in the operational life of North Milam:

The plant materials will provide a

visual buffer at the time of planting and will

continue to mature and grow in height and density over time

. The closure ground

cover for North Milam will be seeded with native grasses and wildflowers, similar

to those

planted at the perimeter during the early stages of activity

. . . . C0487

(emphasis added).

Petitioners presented little if any evidence to substantiate their concerns over incompatibility

with the character of the surrounding area based on odors, noise, and views of North Milam

during the landfill’s operation. Petitioners also fail to cite any authority for their argument that

these concerns must be addressed under criterion (iii) on “compatibility.” Waste Management

asserts that it provided evidence on these matters under criteria (ii) and (v), and the record

confirms as much. See C0419, 0423-24, 0596-0602, 1204-18, 1221, 1225-27, 1229-30, 1238-39.

Petitioners did not appeal the City’s determination that Waste Management satisfied criteria (ii)

and (v), and petitioners cannot do so now.

See

Batavia, Illinois Residents Opposed to Siting of

Waste Transfer Station v. Onyx Waste Services Midwest, Inc. and City Of Batavia, PCB 05-1

(July 22, 2004) (petitioner must specify grounds for appeal in petition and cannot “wait until

later”).

Waste Management was not required to prove that North Milam “is compatible” with the

character of the surrounding area.

See

Clutts

, 185 Ill. App. 3d at 547, 541 N.E.2d at 846 (“the

law requires only that the location minimize incompatibility”);

see also

City of Rockford v. PCB,

125 Ill. App. 3d 384, 390, 465 N.E.2d 996, 1001 (2nd Dist. 1984) (“The statute speaks of

minimizing incompatibility . . . , it does not speak of guaranteeing no increase of risk concerning

any of the criteria.”). In discussing siting criterion (vi) on traffic patterns to or from the facility

having to be “so designed as to minimize the impact on existing traffic flows” (415 ILCS

5/39.2(a) (2006)), the court noted that the “operative word is ‘minimize,’” recognizing that it is

“impossible to eliminate all problems.” Tate

, 188 Ill. App. 3d at 1024, 544 N.E.2d at 1196. The

same can be said of the “compatibility” requirement of criterion (iii).

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63

After carefully reviewing the record, the Board finds that Waste Management met its

burden before the City of demonstrating that the company “has done or will do what is

reasonably feasible to minimize incompatibility.” File, 219 Ill. App. 3d at 907, 579 N.E.2d at

1236. Petitioners and Waste Management draw different conclusions from the information in the

record. It is for the local siting authority, however, to weigh the evidence, assess witness

credibility, and resolve conflicts in the evidence.

See

Concerned Adjoining Owners, 288 Ill.

App. 3d at 576, 680 N.E.2d at 818;

see also

Land and Lakes, 319 Ill. App. 3d at 53, 743 N.E.2d

at 197; Fairview, 198 Ill. App. 3d at 550, 555 N.E.2d at 1184; Tate, 188 Ill. App. 3d at 1022, 544

N.E.2d at 1195. Where there is conflicting evidence, the Board is not free to reverse merely

because the local siting authority credits one group of witnesses and does not credit the other.

See

Waste Management, 187 Ill. App. 3d at 82, 543 N.E.2d at507. “[M]erely because the [local

siting authority] could have drawn different inferences and conclusions from conflicting

testimony is not a basis for this Board to reverse the [local siting authority’s] finding.” File, 219

Ill. App. 3d at 905-906, 579 N.E.2d at 1235.

The Board cannot reweigh the evidence to substitute its judgment for that of the City.

See

Fairview, 198 Ill. App. 3d at 550, 555 N.E.2d at 1184; Waste Management, 187 Ill. App. 3d

at 81-82, 543 N.E.2d at 507; Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195. The Board

finds that the opposite conclusion, that North Milam is not located so as to minimize

incompatibility with the character of the surrounding area, is not clearly evident, plain or

indisputable.

See

Concerned Adjoining Owners, 288 Ill. App. 3d at 576, 680 N.E.2d at 818.

Accordingly, the City’s determination that Waste Management met criterion (iii) is not against

the manifest weight of the evidence.

CONCLUSION

The Board finds that that petitioners have failed to prove that the City’s siting procedures

were fundamentally unfair, or that the City’s determinations on siting criteria (i) and (iii) of

Section 39.2(a) of the Act were contrary to the manifest weight of the evidence. Therefore, the

Board affirms the City’s decision granting siting approval to Waste Management for North

Milam.

This opinion constitutes the Board’s findings of facts and conclusions of law.

ORDER

The decision of the City granting Waste Management’s application to site North Milam is

affirmed for the reasons expressed in the Board’s opinion.

IT IS SO ORDERED.

Section 41(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) (2006);

see also

35 Ill. Adm. Code 101.300(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 Ill. 2d R. 335. The

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64

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on December 6, 2007, by a vote of 4-0.

____________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board