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04/18/97 CONCERNED ADJOINING OWNERS v. POLLUTION

April 18, 1997

CONCERNED ADJOINING OWNERS, A CONCERNED CITIZEN'S GROUP, AND THOSE OPPOSED TO AREA LANDFILLS (T.O.T.A.L.), A CONCERNED CITIZEN'S GROUP, PETITIONERS-APPELLANTS,
v.
THE POLLUTION CONTROL BOARD, THE CITY OF SALEM, ROGER KINNEY, CITY MANAGER OF THE CITY SALEM, AND ROGER FRIEDRICKS, RESPONDENTS-APPELLEES.



Appeal from the Pollution Control Board. PCB Nos. 96-79 & 96-82.

Rule 23 Order Redesignated Opinion and Ordered Published June 2, 1997.

The Honorable Justice Hopkins delivered the opinion of the court. Rarick, J., and Maag, J., concur.

The opinion of the court was delivered by: Hopkins

RULE 23 ORDER

This cause coming to be heard on appellant's motion to publish, and the court being advised in the premises:

IT IS THEREFORE ORDERED that appellant's motion to publish this court's Rule 23 Order shall be and hereby is, GRANTED.

The Honorable Justice HOPKINS delivered the opinion of the court:

Petitioners, Concerned Adjoining Owners (CAO) and Those Opposed to Area Landfills (TOTAL) (referred to collectively as the objectors), appeal from a final order of the Pollution Control Board (Board), entered on March 7, 1996. The Board affirmed a decision of the City of Salem granting site approval for an extension of an existing landfill (landfill No. 2) and for a new landfill (landfill No. 3), both of which are to be regional pollution-control facilities.

On appeal, both CAO and TOTAL argue that this court should reverse the decision granting site approval because the hearing before the Salem city council and mayor (hereinafter referred to collectively as the council) was fundamentally unfair. The objectors also contend that the council's grant of site approval is against the manifest weight of the evidence in that the applicant for the site permit, Roger Kinney, the Salem city manager, did not meet his burden of proof in that hearing. Additionally, TOTAL argues that the council did not have jurisdiction to rule on the site application, and CAO argues that the Board improperly refused to consider its position. For reasons we will more fully explain, we affirm.

I. FACTS

In July 1995, four days of hearings were held on Kinney's application for site approval for the regional pollution-control facilities. Prior to the hearing, in 1994, Salem purchased 40 acres outside of the city limits for the proposed landfill No. 3. After purchasing the land, the City annexed the 40 acres into the city limits. Once the land was within the city limits, Salem was responsible for making the decision regarding site-approval. 415 ILCS 5/39.2(a) (West 1992). If the property had not been annexed into Salem, the Marion County Board would have been responsible for hearing the site-approval application. The application requested that both facilities be allowed to accept solid, nonhazardous waste from the surrounding, 16-county area. At the time of the hearings, the existing landfills accepted waste only from Salem.

At the beginning of the hearings on the application for site approval, attorneys for the objectors argued that the council was biased, in that it had already expended large sums of tax money in contemplation of the new regional pollution-control facility, and the council was thereby prejudiced in favor of granting site approval. The objectors argued that the hearing would be fundamentally unfair if the site-approval decision was to be made by the same body that had already purchased 40 acres of land for $120,000 for that very purpose. The hearing officer, Christine Zeman, did not rule on the unfairness issue but stated that the objectors had preserved their fundamental fairness objection for the record, so that the Board could take it up if the site approval was granted.

The applicant, Kinney, presented evidence concerning the criteria for site approval, listed in section 39.2 of the Environmental Protection Act (the Act) (415 ILCS 5/39.2(a)(i)-(ix) (West 1992)). To summarize the voluminous record, the applicant presented testimony in support of all of the relevant section 39.2 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;

***

(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 ...


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