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09/28/89 Roger Tate Et Al., v. Pollution Control Board Et

September 28, 1989

ROGER TATE ET AL., PETITIONERS

v.

POLLUTION CONTROL BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 1176, 188 Ill. App. 3d 994, 136 Ill. Dec. 401 1989.IL.1550

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and STEIGMANN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Roger Tate, Lynette Tate, Barbara Kelley, and Joseph Kelley (petitioners), have filed a petition for direct review in the appellate court of a final administrative order of the Illinois Pollution Control Board entered on December 15, 1988, affirming the decision of the Macon County Board (County Board) which granted site-location suitability approval to the Macon County Landfill Corporation to expand an existing landfill, with conditions, pursuant to section 39.2 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1039.2). MCL filed an initial request on November 9, 1987, and an amended request for site approval for the extension of an existing landfill with the County Board on January 14, 1988. The amended request comprises three pages with two exhibits, one being a legal description and the second being the notice provided to local residents. The request asks permission to extend MCL's existing landfill facility. This application was later clarified to be a request to accept non-hazardous special waste and to increase the design height of the landfill. No other documents were filed with the request, even though MCL had previously submitted to the Illinois Environmental Protection Agency applications and related documents pertaining to the issuance of a developmental permit to handle nonspecial waste on the expanded site. An operating permit had not yet been issued. In addition, MCL filed an amended petition altering the original petition only insofar as the acreage requested to be approved for the expanded facility was reduced from 42 acres to 25 acres. The amended petition makes brief affirmative assertions regarding each of the six statutory siting criteria, and asserts that, because MCL has filed no request or related documents with the IEPA regarding the application, no other documents are submitted.

The seven-member committee (Committee) of the County Board conducted hearings on April 21 and 22, May 5, 12, 18, and 19, and June 2, 1988. The Committee also took a formal 40-minute tour of the MCL site on May 24, 1988, accompanied by Roger Tate, and Paul McKinney, the site operator. Final arguments were presented on the last hearing day, June 2, 1988. Thereafter, the Committee met on June 9, June 16, June 23, June 30, and July 6, 1988, to deliberate. On July 6, 1988, the Committee voted unanimously to recommend approval. The approval included five numbered conditions and one narrative condition.

On July 12, 1988, the County Board, by resolution, concurred in the Committee's recommendation that MCL be permitted to accept special nonhazardous waste and to increase the design height of the landfill 40 feet, subject to the following conditions: (1) an increase in the number (from three to nine) and depth of the monitoring wells; (2) a 10-foot clay liner compacted to "a 10 to the minus 7" be placed under and on the sides of the proposed landfill, noting that the present site has no liner; (3) relocation of a gas pipeline and vacation of the present easement; (4) removal of the existing pipeline; and (5) the entire landfill area be out of the flood plain or be flood proofed. The County Board resolution also contained a Committee recommendation that MCL be required "to develop and submit to the Macon County Board for review, a ten-year plan for waste disposal, including a plan for two years." The IPCB concluded that, as the resolution is drafted, this narrative

The facility extension in question encompasses what is called sites 3 and 4. Site 4 encompasses only two acres of the expanded facility. Immediately east of site 3 is an existing active landfill operation of 25 acres, designated site 2. Site 2 has been in operation since 1971 and is permitted to take general and special waste. Further east, on the other side of site 2, is a closed 20-acre facility, site 1, originally opened in 1960.

To the west of sites 3 and 4 are about 30 acres of undeveloped pasture land owned by MCL. To the north, across Hill Road, are homes. To the south is the Sangamon River and, to the east of site 1, across the interstate, are the sludge pits of the Decatur Sanitary District.

At the Committee hearing there was some initial confusion as to what constituted a new regional pollution-control facility at the MCL site. In 1977, 1978, and 1979, MCL had applied for, and received, development permits and supplemental development permits for sites 3 and 4. These development permits allow disposal of general, municipal, solid waste, not special waste, and limit the height of the landfill to 40 feet below what is now requested.

Less than a month after filing the amended application to extend the facility, on February 9, 1988, MCL notified the County Board that it had discovered the statute creating the procedure for approval of new regional pollution-control facilities had a "grandfather clause," which exempted from the process those facilities which earlier had been issued development permits. The letter sent to the County Board on behalf of MCL states that MCL is "only requesting approval to fill the unpermitted area with non-hazardous special waste and/or liquid waste, and to increase the permitted elevation of this site so as to be the same as the adjoining landfill." (See Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1003.32.) The letter stated that it hoped to proceed on the existing amended petition with the understanding that MCL was only requesting approval for variance from the existing development permits. In correspondence dated April 14, 1988, addressed to the County Board, petitioners challenged MCL's February 9, 1988, correspondence and complained that the material change in the location of the site, as well as the other amendment, presented jurisdictional problems such that MCL should be required to withdraw the request and issue new notices.

At the hearing on April 21, 1988, petitioners also asked MCL to disclose technical exhibits. MCL refused to do so. At the hearing on May 5, 1988, MCL submitted to the County Board the technical documents previously submitted to the IEPA. These documents, variously dated September 1977 to October 7, 1979, include descriptions of site characteristics, including hydrology and geology, site development plans; operating plans and procedures; permeability testing results and construction proposals to contain leachate; and the application to the County Board to permit the development of the site submitted in August 1979, with the attachments thereto. When MCL produced the exhibits at the May 5, 1988, hearing, petitioners objected and moved to dismiss the proceedings on the ground that the failure to file the documents with the request for site approval made to the County Board constituted a jurisdictional defect under section 39.2(c) of the Act. (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1039.2(c).) This issue was also raised before the IPCB, and it was rejected. However, it is precisely on this point that three members of the IPCB Dissented, suggesting that the failure to include this information with the request is a violation of fundamental fairness. The IPCB majority noted petitioners' attorney, when asking for the technical

When petitioners requested presubmittal of MCL's technical data and expert witnesses, MCL refused, saying the County Board could have the information, but that the opposition was not entitled to it, and noted that the opposition did not offer to presubmit anything in return. The assistant State's Attorney advised the County Board that principles of fundamental fairness do not include the rules of discovery. He further stated that "about all we can do in these proceedings is try to be as open as possible." The committee chairman and two committee members felt that the request could delay hearings and cause additional prejudice and, in any event, additional hearings could be held. It was decided that the rules did not allow ordering compliance with such a request in light of the fact the proceedings had already begun, noting that after the documents were introduced, the Committee would consider what was necessary to ensure the fairness of the hearing.

In arguing this issue before the IPCB, petitioners presented an alternative argument asking the IPCB to strike the MCL exhibits if there was found to be no connection between the current proceeding and the prior filings with the IEPA. The IPCB majority declined to find there was no connection, but nevertheless decided there was no jurisdictional requirement that the documents be filed with the request.

The petitioners contend there were additional jurisdictional defects in that the request's stated location of the expanded site was outside the 100-year flood plain and the request failed to describe any vertical expansion or the proposed activity of accepting special waste. MCL acknowledged the description of the site was not accurate and that the site was within the 100-year flood plain. No new application was submitted and new notices were not issued. Noting that section 39.2(b) of the Act requires only that the notice disclose the location of the proposed site, without reference to "flood plains," the IPCB, without Dissent on this point, found the description in the notice did not constitute a jurisdictional defect.

The County Board's resolution did not find the facility to be located outside the 100-year flood plain or that the site is flood proofed. MCL did not submit any plans for flood proofing the site. The County Board's exhibit No. 3, a 1984 FEMA (Federal Emergency Management Agency of the Department of Housing and Urban Development) map, relied on for flood insurance rate purposes, was introduced, as was a map based on aerial photographs taken in 1983 relied on by the County for tax purposes, but which does not indicate the 100-year flood plain. The IPCB indicated there was general agreement for the need for a new topographical study to ascertain the current flood plain. In addition, the minutes of the County Board landfill organizational meeting of March 23, 1988, indicate the "bottom portion" of the landfill is in the flood plain. MCL's engineering expert, Gregory Kugler, testified a berm would be placed at the edge of the fill above the flood plain. He and Paul McKinney indicated the surveying work had not been completed and the areas of the flood plain and landfill had not been identified. The only documentary evidence admitted concerning the flood plain showed the location of the flood plain in 1984. Correspondence from Michael Bender of the Illinois State Water Survey, dated July 1, 1988, stated the FEMA maps exclude certain formations and there is flooding likely upstream and downstream in the area of the proposed site.

On the merits, the IPCB Dissent would have reversed the approval of the County Board on two points: (1) site safety and (2) minimization of incompatibility of the site to the public. As to the safety factor, the Dissent referred to the failure to present a design. Furthermore, the petitioners' witness, Mike Duffin, a research assistant at Central States Resources with a Ph.D. in geology from the University of Illinois, testified that continuous bore sampling had never been done. The failure to do a continuous bore sample could leave a gap resulting in another type of sediment being present. IEPA regulations now require continuous bore samples while they were not required in 1978. Borings had not been done deeper than 18 feet and cation exchange capacity tests to determine the ability to hold back toxic cations or molecules had also not been done. The Dissent also focused on the testimony of Thelma Reed, a local resident, who testified on June 2, 1988, that a large pool of water, about 120 feet long, 40- to 50-feet wide, and quite deep, had appeared on May 28, 1988, which this witness believed resulted from the landfill cutting into her well and thereby contaminating her drinking water.

Concerning the incompatibility of the site to the public, the Dissent relied on the fact that no vertical expansion plans were filed, no plans existed to screen the higher height, no consideration of visual screens such as trees or berms were presented, and Thelma Reed lives 25 feet from the site. The Dissent concluded this witness should have some screening to mitigate the visual impact of the new landfill.

The majority decision of the IPCB summarized the testimony of the witnesses before the County Board. The stated intent of MCL was, if the County Board approved, to operate the new acreage in the same manner as the existing acreage and to continue to accept general as well as special waste, as MCL is doing now. Absent approval, MCL will develop the expanded acreage to accept only general, household waste as allowed by the existing permits, except that without the increased height, the expanded acreage will last only 5 years, not the 10 years stated in the request.

First to testify were individuals invited by the Committee. Lee Holsapple, since 1986 the sheriff in Macon County, with 22 years of service in the sheriff's office prior to that, testified MCL is two or three miles southwest of Decatur. Regarding traffic, he received no complaints about MCL in the past two years. Over the years he recalls only complaints of refuse blowing out of vehicles onto the highway, but his office always received cooperation from MCL to resolve the problem. He knows of no existing traffic problem from the refuse trucks. The sheriff acknowledged his office logs complaints only when there are follow-up investigations or arrests, and that it is possible complaints made to other officers had not come to his attention.

Gary Fogerson, for 11 years the coordinator of the Macon County Emergency Services and Disaster Agency, testified the only complaint to his office regarding MCL involved a truckload of paint filters, a hazardous waste, erroneously shipped to the landfill. Remedial action had already been initiated before Fogerson's agency became involved. He also noted that files are maintained containing information on the type of waste MCL receives.

Charles Burgener, for 17 years the engineering technician for the Macon County Highway Department, testified his office has no knowledge of present traffic problems in the landfill area, including on Hill Road. The traffic count on the north-south township road intersecting with Hill Road near the entrance to the site is 150 to 399 vehicles per day, a moderate township road traffic count since most township roads have less than 100 vehicles per day. A State roadway map shows about 40 to 45 homes in the area, although he acknowledged that some homes shown on the map appear to be located in the existing landfill even though there were none there. He also noted his traffic counts were taken from a 1985 Macon County traffic map, which incorporated traffic counts in the county averaged on a 24-hour basis, prepared by the Illinois Department of Transportation in cooperation with the United States Department of Transportation.

Steven Gambrill, since 1981 chief of the Harristown Township Fire Protection District within which MCL is located, testified the department has received no traffic complaints concerning the intersection adjacent to the MCL entrance. Gambrill has been a volunteer with the department since 1967. Records compiled since 1984 show that the department answered 10 calls to MCL's operations, i.e., five trash fires, two vehicle fires, one injured-worker call, one structural fire, and one false alarm. He testified the trash fires were extinguished with dirt. The vehicle fires involved a garbage truck with a hot load and a tractor. The landfill's own personnel was used to extinguish the fires under the supervision and assistance of the department. The structural fire involved a maintenance shed. The vapors from a fuel leak on one of the tractors being worked on was ignited by the heating source in the building, and this witness concluded this fire was unrelated to the operation of the facility as a landfill. They have had no trouble working with MCL, and there have been no calls relating to spills.

Paul McChancy, for 13 years the county planner with the Macon County Planning and Zoning Department, testified there are four landfills in Macon County: MCL, Rhodes, Bath Incorporated, and McKenny (Waste Hauling, Inc.). He presented a 1983 air photo used for tax mapping and kept updated based on property tax and building permit records. He used it to identify home sites, identifying those within a half-mile radius from the borders of the site and those built since 1975. He testified that 26 homes were built since 1975, of which eight are within a half-mile radius. Forty-nine homes in all are within the half-mile radius. The area is fairly rural and the sources of water are private wells. The only complaints he received about MCL's operations occurred after the landfill filed its first request. These complaints were referred to the County Health Department or the IEPA. The complaints concerned blowing litter, digging activities in the expansion area, and possible expansion into a natural spring in the area.

Richard Rosetto, for 14 years a sanitarian with the County Health Department, testified he inspects all four landfills monthly. MCL is the only one handling liquid waste, and Decatur is an industrial town. Eighteen residents within a 1 1/2-mile area had their wells tested in 1987 by the IEPA and the tests showed no contamination. He has received complaints about road dust and litter, which MCL promptly responded to, and a complaint about trucks operating at night a couple of years ago. MCL's operations are well above those of the other three landfills, primarily because MCL is well equipped.

Gary Anderson, mayor of the City of Decatur (City), testified the City supports the landfill request. The dumping fees in Macon County have increased 50% in the past two years, forcing increases in collection and disposal fees, and representatives from IEPA advised the City's staff that MCL has a good record.

On behalf of MCL, James Holderread, executive director of the Macon County Economic Development Foundation (Foundation), testified that industry needs expansion of MCL. The Foundation is working with a national consulting firm conducting a site search for a major new $50 million facility. The facility would create about 100 area jobs, but will not be located in Decatur unless there is enough industrial waste, including liquid waste, capacity.

Paul McKinney, the president of MCL Corporation, testified he previously operated the landfill which he sold to Waste Hauling, Inc., in 1980. He is familiar with its capacity, and Waste Hauling can accept waste for only a little over two years. He testified that the Bath Landfill is the only landfill that will be able to accept wastes for more than three years, but only demolition waste, and the landfill cannot accept general waste now. He stated that only two landfills in the county, one being MCL, accept general waste. He further states that if MCL's siting request is not approved, industrial liquid waste will have to be hauled as far away as Peoria, or to the Clinton site if it gets permits.

He also testified that MCL accepts 92% of its waste from Macon County and the bulk of the noncounty waste is from Monticello. He estimated MCL takes about 70% to 75% of the waste generated in Macon County and receives about 50% municipal waste and 50% special waste, although that changes depending on the needs of the community. For any waste sent outside the city limits of Decatur, whose population dominates the 125,000 population of Macon County, the hauling costs increase as the distance increases. So if the MCL facility is not available to Decatur, McKinney believes the cost of hauling will increase.

McKinney testified he did not consider capacity at the Waste Control site because he believed the site no longer had an active permit, although he did not know that. Nor did he consider capacity in nearby surrounding counties. He had no computation on waste imported into the county or exported from the county. Without County Board approval of the request, the facility, including sites 2, 3, and 4, still had a seven-year life span for acceptance of waste. McKinney had no calculations on the economic cost of transporting waste based on mileage.

McKinney stated he contacted two real estate appraisers, both of whom declined to give their opinion as to whether the expansion would improve or lower property values, because they said they could not prove it. He added, however, that of the 10 new homes built since 1975, he built and sold three himself, as well as one lot in his subdivision. He had no trouble selling them even though real estate was not selling well generally.

The landfill hours are 7 a.m. to 3:30 p.m. for acceptance of waste, and employees are on the site from 7 a.m. to 4 p.m., six days per week, generally, although MCL will accept late requests under special circumstances, such as when ADM had a breakdown.

Regarding night fires, MCL distributes cards to the immediate neighbors with McKinney's, the foreman's, and other corporation board members' phone numbers. He noted and agreed with the fire chief's testimony. He stated MCL has $1 million worth of equipment, including crawlers, loaders, tractors, earth movers, two power brooms to sweep dust, water pumps, and a fire truck in operating order.

He had never had a spill, hazardous or oil, and nothing has discharged to the stream. He has been the road commissioner of Harristown Township for 12 years. There has been no change in the existing traffic pattern or access road. If business increased, the traffic would be heavier, but it would be over the same roads.

He noted that MCL paid $60,000 in 1978 to pave the township road after an increase in traffic caused by the new interstate forced a change in the entrance to MCL. The State's contribution was to design the road for garbage truck weights. Regarding vehicle mud, he is now building a one-half- to three-quarter-mile white rock road within the site to reduce dust and mud on the township road.

Regarding litter, he has seven people available to pick up paper, and there are permanent and portable fences. Paper is confined to his property unless a strong, 40-miles-per-hour south wind causes it to blow over the north fence.

There is a pipeline under the property that will have to be moved. That is a condition of the IEPA permit, and negotiations are in progress with the owners of the pipeline. He did not know whether the pipeline is in use.

He stated he has liability insurance with a $1 million umbrella policy. In addition, at the time the facility is to be closed, the IEPA would require the submission of a closure plan and the deposit of money in a trust fund. He also stated as soon as he gets through this expansion, he will be actively looking for future space. Decatur will be in trouble again in 10 years and the witness mentioned the problem of Champaign-Urbana, which has been working 10 years to solve landfill problems and has not been able to do so.

If the expansion is denied, only seven years remain, two on the existing site and five on the new, and this only contemplates acceptance of solid waste. He noted that if the situation gets tight, the corporation stockholders who are waste haulers might have to get preferential treatment.

After Richard Lutovky, president of the Metropolitan Decatur Chamber of Commerce, testified in favor of the expansion, Greg Kugler, a technical specialist for Andrews Environmental Engineering (Andrews), testified. Referring to exhibit Nos. 10 through 16, the applications and the development permits for the site, Kugler testified that fires, spills, and other operational accidents are covered in the operating plan submitted to IEPA. A 10-foot clay liner, compacted as necessary to a permeability of 1 X 10 cm/sec., is required as well as soil tests on a 200-foot grid. There are currently seven monitoring wells to detect leakage of contaminants, and three more were required for the new site. Andrews is involved in the pipeline issue and was involved in testing of the 18 private wells. Samples were taken but after the positive IEPA results, the samples were not tested.

Regarding the possibility of hauling waste 40 to 50 miles as suggested by the petitioners, Kugler stated this might be acceptable for a small town, but for Decatur this would be a tremendous hauling burden. He stated Decatur is courting a problem to depend on another county. The site in Clinton, about 25 miles from Decatur, which recently received approval to expand, has not yet received permits, and the ability of its accepting waste from Decatur is thus speculative.

He testified Andrews used the IEPA publication, entitled Available Disposal Capacity for Solid Waste in Illinois, to determine landfill capacity in Macon County and the surrounding counties. Andrews determined the surrounding counties had very little capacity to take added waste from MCL. The Bath Landfill, with its current volume of waste, plus MCL's, would have less than one year. The Walter Sanders Landfill in Logan County would have less than one year. The Lovell Landfill in Moultrie County would have less than one year. The Christian County Landfill would have less than three years. Sangamon County, Sangamon Valley Landfill, would have a life expectancy of approximately five years. These life expectancies were all calculated by considering MCL's waste in addition to the waste now being accepted by the respective sites.

He testified that the current permits do not require a leachate collection system or gas migration controls, and the facility complies with existing regulations. He believes the liner and side wall liners would control both leachate and gas migration. It was noted that the plans are not final in many respects. For example, the vertical expansion is conceptual. MCL merely wants to go higher with what is presently being done. Gas vent trenches would be considered if there were to be a problem. Andrews is reviewing the adequacy of the monitoring wells and the monitoring program which were designed by another firm.

Kugler believes there is a need to establish plans for at least 10 years, reviewable yearly, since site capacities are shifting so much. Andrews has clients who doubled their landfill price and cut volume in half to extend the life of the sites. He stated that each year there are fewer sites and that McLean County Landfill, for one, will not accept special waste from outside McLean County.

He also sees nothing wrong with looking to the IEPA for technical guidance. Most counties do and to move in another ...


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