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Will County Board v. Illinois Pollution Control Board

February 28, 2001

WILL COUNTY BOARD, PETITIONER- APPELLANT,
v.
ILLINOIS POLLUTION CONTROL BOARD AND WASTE MANAGEMENT OF ILLINOIS, INC., RESPONDENTS-APPELLEES.



Petition for Review of Order of the Illinois Pollution Control Board PCB No. 99-141

The opinion of the court was delivered by: Justice Lytton

Will County and Waste Management of Illinois, Inc. (WMI) entered into a contract to develop a sanitary landfill (Prairie View) on county land. WMI filed a request for site location approval (application) with the Will County board (board) for Prairie View. The board approved the application subject to several conditions. WMI then filed a petition with the Illinois Pollution Control Board (PCB) for review of condition six, which required that WMI close its Wheatland landfill by April 1, 2001, or by the opening of Prairie View, whichever would be later. The PCB found that the board's addition of condition six was against the manifest weight of the evidence; the board seeks judicial review. We affirm the PCB's decision.

FACTS

In 1996, Will County drafted a solid waste management plan and subsequent update (together, the plan) that provided for a private contractor to develop a sanitary landfill on county land to serve the needs of Will County. WMI was awarded the contract and filed an application for Prairie View with the board. During public hearings on the matter, voluminous documentation was presented, and extensive testimony was taken. Sheryl Smith, an expert witness for WMI, testified in detail regarding the need for the landfill and its consistency with the county's plan.

The board approved WMI's application but added several conditions, including condition six, which required WMI's present operations at its Wheatland landfill to cease by either April 1, 2001, its anticipated closure date, or the date Prairie View began to accept waste, whichever would be later. WMI filed a petition with the PCB for review of condition six, claiming in part that it was against the manifest weight of the evidence. The PCB held a hearing, reviewed the parties' written arguments, and took public comments regarding the petition. With one member dissenting, the PCB then issued an order finding that the addition of condition six was against the manifest weight of the evidence. The board now seeks judicial review of the PCB's decision to strike condition six.

DISCUSSION

The board contends that the PCB erred in striking condition six because it is reasonable and necessary to satisfy two criteria in section 39.2(a) of the Illinois Environmental Protection Act (Act). 415 ILCS 5/39.2(a) (West 1998).

When reviewing the board's decision on a siting location application, this court must determine whether it is against the manifest weight of the evidence. A decision is against the manifest weight of the evidence if the opposite result is clearly evident or indisputable. Fairview Area Citizen's Task Force v. Illinois Pollution Control Board, 198 Ill. App. 3d 541, 550, 555 N.E.2d 1178, 1184 (1990). The board may only impose conditions that are reasonable and necessary to meet the waste needs of the area. 415 ILCS 5/39.2 (West 1998).

I.

The board first argues that condition six is needed to satisfy criterion i of the Act, which requires a showing that the new facility "is necessary to accommodate the waste needs of the area it is intended to serve." 415 ILCS 5/39.2(a)(i) (West 1998). The board contends that if Wheatland is permitted to remain open after Prairie View is operational, the new facility was not necessary to accommodate the county's disposal needs since Wheatland remained available.

The board relies on Waste Management of Illinois, Inc. v. Illinois Pollution Control Board, 123 Ill. App. 3d 1075, 1083-84, 463 N.E.2d 969, 976 (1984), in which the court found that WMI failed to establish sufficient need for a new landfill to satisfy criterion i. The evidence in that case showed that the existing landfills would be able to meet the area's disposal needs for at least ten more years.

In the instant case, the plan estimates that, with a recycling rate of 25%, the Will County area will require annual disposal capacity for 700,000 tons of waste from 1996 to 2020. However, the area's only two existing landfills, CDT and Wheatland, were projected to close in November 1998 and April 2001, respectively, and the plan did not recommend transporting waste out of the county for disposal. To handle the service area's anticipated disposal needs, the plan recommended developing a landfill in conjunction with a private contractor "as available disposal capacity in the County diminishes."

Based on her projection that Wheatland would reach capacity by April 2001, WMI's expert witness, Sheryl Smith, concluded that Prairie View must be built to meet the county's projected waste disposal needs. However, this conclusion was not dependent on the closure of Wheatland at that time. Under Smith's analysis, even with the addition of Prairie View the service area would suffer a shortfall of capacity of approximately 4.2 million to 10.6 million tons during the planning period. If Prairie View was not available for use, the shortfall would increase by an additional 20 million tons.

A report prepared by the Will County Waste Services Department director Dean Olson (Olson report) supports Smith's conclusions. It summarized Smith's testimony, and a report prepared by her and concluded that ...


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