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County of Lake v. Pollution Control Bd

OPINION FILED DECEMBER 12, 1983.

THE COUNTY OF LAKE, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Browning-Ferris Industries of Illinois, Inc. (B.F.I.), petitioned for review of site location approval conditions for a regional pollution control facility with the Pollution Control Board (PCB), pursuant to section 40.1 of the Environmental Protection Act (Act) (Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1040.1). B.F.I. sought review by the PCB of 16 of 25 conditions imposed on its sanitary landfill by the Lake County Board (County Board) pursuant to section 39.1 of the Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039.1, amended to Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1039.2). The Environmental Protection Agency (Agency) intervened in support of B.F.I. before the PCB.

The PCB's order partially or completely struck 14 conditions, amended one and affirmed another. The County Board appealed here for a direct review of the PCB's order.

B.F.I. owns and operates a 74.3-acre solid waste disposal site known as Site No. 2 in an unincorporated area of Lake County, Illinois. The site is located approximately 2,000 feet east of the northeast corner of Ninth Street and Green Bay Road, near the village of Winthrop Harbor and the city of Zion. B.F.I. received its operational permit for Site No. 2 from the Agency on December 23, 1981. Under the permit, Site No. 2 was allowed to "handle general municipal solid waste excluding all liquids, sludges and hazardous waste."

Adjacent to Site No. 2 on its western border lies Site No. 1. Site No. 1 is also owned and operated by B.F.I. It is a 71-acre landfill which is permitted as a landfill for special and hazardous waste. Site No. 1 and Site No. 2 are separated by 10 feet of clay.

B.F.I. decided to expand Site No. 2 by adding special wastes, as defined by the Act to the landfill. (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1003(aa), amended to Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1003(ff).) Although hazardous wastes are included within the definition for special waste, B.F.I. specifically deleted hazardous waste from its request and sought to add only special, non-hazardous waste.

Since the time that B.F.I. initially received the site approval for Site No. 2 from the Agency, the General Assembly passed Senate Bill 172 (also known as Public Act 82-682), effective November 12, 1981, amending the Environmental Protection Act (Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1039.2), to transfer the responsibility for hearing and approving site location suitability permits for regional pollution control facilities from the EPA to the relevant locality, in this case, the County Board. The statute requires the County Board to conduct a public hearing on the site location application and conditions approval of the application on proof that the proposed site meets certain statutory criteria. The statute also enables interested parties to obtain review of the County Board decision before the PCB. Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, pars. 1039.2, 1040.1.

Although Site No. 2 was an existing regional pollution control facility at the time Senate Bill 172 became law, B.F.I. was required to follow the new procedures. The amendments provided for county board approval for a new regional pollution control facility which has as one definition: "a permitted regional pollution control facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1003(t), amended to Ill. Rev. Stat., 1982 Supp., ch. 111 1/2, par. 1003(x).) B.F.I. was seeking permission to add special non-hazardous waste for the first time to Site No. 2, which meant that B.F.I. had to obtain approval from the County Board before the Agency would grant a permit. In accordance with the new provisions of the Act, B.F.I. filed its request for site location approval with the County Board.

A Lake County Regional Pollution Control Hearing Committee (Committee) was appointed pursuant to a County Board resolution. The Committee conducted public hearings on B.F.I.'s request for site location.

The County Board was required to approve the site location suitability for Site No. 2 only in accordance with the six criteria set out in section 39.2(a). The section provides:

"(a) The county board of the county or the governing body of the municipality * * * 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 incompatibility 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).

Following the hearings, the Committee presented its findings to the County Board in a written report. The Committee found that four of the six criteria of section 39.2 were satisfied by B.F.I. They were those found in subparagraphs (i), (iii), (iv), and (vi). However, in order to meet the criteria of subparagraphs (ii) and (v), certain conditions were imposed on B.F.I. The Committee stated:

"That provided the following provisions are followed by the applicant, introduction of special waste to the site will not be detrimental to the public health, safety, and welfare, and there will be no increase in the danger to the surrounding area from fire, spills, or other operational accidents."

The report went on to list 25 conditions, lettered A(i-x) through X, and an unnumbered proviso (Proviso).

The County Board adopted the Committee report in a resolution which granted approval to B.F.I. for the introduction of special, non-hazardous wastes to Site No. 2. The resolution stated "that subject to all such conditions the County Board grants its' approval * * *" and attached the Committee report to its resolution.

B.F.I. filed a petition for review of site location approval conditions with the PCB. The petition asked the PCB to delete 16 of the conditions that were contained in the County Board's approval resolution. The objected to conditions are:

"C. That the Lake County Health Department shall have the right to conduct unannounced inspections and investigations on site at all reasonable times for the purpose of ensuring that the public health, safety and welfare will be protected.

E. That the Lake County Health Department shall have the right to inspect manifests on all incoming wastes and to sample those wastes as may be necessary to ensure that all special wastes received at the site are permitted and disposed of as designated.

G. That the Lake County Health Department shall have the right to discuss specific disposal methods with the Landfill Supervisor and make recommendations as may be necessary to control any nuisances associated with the disposal of special wastes.

H. That the Lake County Health Department and the Lake County Department of Building and Zoning shall have the right to discuss with the Landfill Supervisor and may require additional measures for controlling: rodent infestation, flies, birds, dust, odors, blowing and erosion problems.

I. That the Lake County Health Department shall receive from applicant copies of all quarterly monitoring well results. In addition, the Lake County Health Department shall have the right to discuss with the applicant and may require additional monitoring reports, wells and/or devices for local ground water, surface water and air.

K. That the applicant shall provide on-site at all times special wastes are received a chemist who shall have a bachelor of science degree in chemistry and at least two years experience in the field of chemical analysis. Said chemist shall test the contents of wastes brought to the site to ensure that the contents of each load are consistent with manifest forms and that only permitted wastes are deposited on the site. Said chemist shall certify on each manifest form the contents of each load and the site where such contents are deposited.

The minimum tests to be run on site shall be as follows: color, turbidity, smell, Ph, flash point. The Lake County Health Department shall have the right to discuss adequacy of testing with the applicant and may require additional tests to be routinely performed. Special testing may be required at off site labs at the direction of the Lake County Health Department.

M. That the applicant shall meet the water quality goal of the 208 Areawide Water Quality Management Plan for northeastern Illinois by reducing by 50 percent pollution loads in the stormwater runoff.

N. That the applicant shall notify the Lake County Health Department prior to the commencement of any pumping of water off-site; the Health Department shall have the right to test ...


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