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11/07/88 Waste Management of v. the Pollution Control

November 7, 1988

WASTE MANAGEMENT OF ILLINOIS, INC., PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 682, 175 Ill. App. 3d 1023, 125 Ill. Dec. 524 1988.IL.1623

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Petitioner, Waste Management of Illinois, Inc. (Waste Management), sought local siting approval from the Lake County Board for an electric power generating, non-hazardous waste incinerator and associated landfill to be located in unincorporated Lake County. Following a hearing conducted pursuant to section 39.2(d) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(d)), the LCB denied Waste Management's request for siting approval. Waste Management appealed the LCB decision to the Illinois Pollution Control Board pursuant to section 40.1 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1), and the PCB affirmed the decision of the LCB. Following the PCB's denial of its motion to reconsider, Waste Management filed its petition for review with this court. Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041.

The issues raised on appeal are: (1) whether the PCB erred in its determination that the LCB's decision as to criterion (i), as set forth in section 39.2 of the Act pertaining to the necessity of the proposed site, was not against the manifest weight of the evidence; (2) whether the PCB erred in failing to review the LCB's findings as to criteria (ii), (iii) and (vi) of section 39.2; and (3) whether the LCB conducted a fundamentally fair hearing of Waste Management's local siting request.

On November 7, 1986, Waste Management filed its local siting request with Lake County seeking approval for a non-hazardous waste incinerator and landfill. The local hearing committee, consisting of seven members of the LCB, commenced its hearing on February 5, 1987. Also present, in addition to various attorneys and witnesses, were Mr. John Koenen, a Lake County assistant State's Attorney representing Lake County and its department of planning, zoning, and environmental quality, and Mr. Larry M. Clark, a Lake County assistant State's Attorney representing the Lake County Joint Action Solid Waste Planning Agency , an agency composed of elected officials from Lake County municipalities and Lake County.

On April 20, 1987, Waste Management filed a motion to disqualify LCB members F.T. "Mike" Graham, Bruce Hansen, Carol Calabresi, and Norman Geary based on their alleged bias, preDisposition, and prejudgment of its application. Additionally, Waste Management filed a motion to disclose interest which sought to ascertain whether any LCB member was ever a member of any of the groups or organizations appearing before the LCB or if any member had ever donated or contributed any funds or property to such groups or organizations. Upon the recommendation of the local hearing committee, both motions were denied by the LCB as not being timely filed.

On April 30, 1987, the hearing committee voted to deny Waste Management's local siting approval application. The hearing committee found that Waste Management had satisfied criteria (iv) and (v) of section 39.2 of the Act, but that it failed to satisfy criteria (i), (ii), (iii), and (vi). As to criterion (i), the hearing committee found that Waste Management failed to meet its burden of demonstrating that "the facility is necessary to accommodate the waste needs of the area it is intended to serve."

On May 5, 1987, the planning and zoning committee of the LCB presented to the entire LCB the hearing committee's findings and a resolution denying the local siting application. The LCB denied the local siting application by a vote of 21 against, 0 in favor, and two abstentions. Prior to voting, all LCB members were asked if any prior statements made by them would influence their ability to render a fair and impartial decision based solely on the evidence. All LCB members answered no, except John Balen, who then abstained from voting on the application.

On June 1, 1987, Waste Management filed its petition with the PCB pursuant to section 40.1 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1). Waste Management contended in its petition that the LCB failed to conduct a fundamentally fair hearing and that the LCB decision as to criteria (i), (ii), (iii), and (vi) was against the manifest weight of the evidence.

On December 17, 1987, the PCB issued its order and opinion upholding the decision of the LCB. The PCB found LCB member Hansen to be disqualified based on his bias and LCB member Anderson to be disqualified based on ex parte contacts between Anderson and certain citizens. Additionally, the PCB determined that the LCB finding as to criterion (i) was not against the manifest weight of the evidence. The PCB also declined to review the LCB findings as to criteria (ii), (iii), and (vi) because it found its decision regarding criterion (i) to be dispositive of the case.

On appeal, Waste Management first contends that the PCB's determination that it failed to satisfy criterion (i) is erroneous for three reasons. First, it argues that the PCB failed to consider a report commissioned by the Lake County Joint Action Solid Waste Planning Agency that concluded unequivocally that there is a need for the proposed facility; failed to consider an Environmental Protection Agency report indicating that Lake County has less than three years of remaining landfill capacity; and failed to consider the testimony of Jeanne Becker in a previous siting hearing in another case before the LCB in which she acknowledged the need for such a facility. Second, it contends that the PCB erred in considering the waste disposal capacities existing outside of Lake County. Finally, it maintains that the PCB's ruling impedes the formulation of uniform and feasible standards for measuring waste disposal needs.

Section 39.2(a) of the Act sets forth the criteria which must be met for approval of a local siting application.

Section 39.2(a) states, in pertinent part:

"(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;

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; and

(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental ...


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