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City of East Peoria v. Pollution Cont. Bd

OPINION FILED AUGUST 23, 1983.

THE CITY OF EAST PEORIA ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Waste Management of Illinois, Inc., petitioned pursuant to the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq.) for approval to locate a regional pollution control facility, i.e., sanitary landfill, in an unincorporated area of Tazewell County, Illinois. The Tazewell County Board of Supervisors first considered the petition and denied it. A review of that decision was conducted by the Illinois Pollution Control Board, and the Board reversed the Tazewell County decision and approved the petition. We are asked to consider the Pollution Control Board's reversal order under administrative review procedures set forth in section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1041). The administrative review provided for therein is afforded directly in the appellate court and not in the circuit court.

According to the Illinois Environmental Protection Act,

"* * * no permit for the development or construction of a new regional pollution control facility (sanitary landfill) may be granted * * * unless the applicant submits proof * * * that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area in which the facility is to be located * * *." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039(c).)

The Act further provides:

"[T]he County Board * * * shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:

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

(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;

(iii) the facility is located so as to minimize incompatability with the character of the surrounding area and to minimize the effect on the value of the surrounding property;

(iv) the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;

(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; and

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows." (Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1039.2(a).)

Finally, the Act provides that in determining the suitability of the landfill site, the county board must hold at least one public hearing, with notice of such hearing published in a newspaper of general circulation and directed to all members of the General Assembly from the district in which the proposed site is located. Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1039.2(d).

On December 21, 1981, Waste Management of Illinois, Inc., filed its application for approval of the landfill site. On February 18, 1982, the county board held the mandated hearing and granted site approval finding that Waste Management had met its burden of proof on each of the six criteria set forth in the Act. Subsequently, on February 24, 1982, the city of East Peoria filed a petition with the county board requesting that the previous decision be set aside and that the public hearing be reopened, alleging as a basis for its petition certain misstatements of a Waste Management witness at the first hearing. In response to East Peoria's petition, the County Board set aside its February 18 decision and reopened the public hearing on March 24, 1982. Following this reopened hearing, on April 19, 1982, the Tazewell County Board ...


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