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Stop the Mega-Dump v. the County Board of De Kalb County

October 29, 2012

STOP THE MEGA-DUMP,
PETITIONER,
v.
THE COUNTY BOARD OF DE KALB COUNTY, ILLINOIS, AND WASTE MANAGEMENT OF ILLINOIS, INC., AND THE ILLINOIS POLLUTION CONTROL BOARD, RESPONDENTS.



Petition for Review from the Illinois Pollution Control Board. PCB No. 10-103

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶ 1 Pursuant to the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2010)), Waste Management of Illinois, Inc., filed an application with the Illinois Environmental Protection Agency (IEPA) for permits to expand a landfill in De Kalb County. To obtain the permits, Waste Management applied for siting approval from the county board of De Kalb County (County Board), which granted approval by a 16-to-8 vote. See 415 ILCS 5/39.2 (West 2010). As part of the approval process, Waste Management and the County Board entered into a host agreement under which Waste Management would pay $120 million in host fees over 30 years.

¶ 2 Stop the Mega-Dump (STMD), a group of citizens opposing the landfill expansion, filed an objection with the Illinois Pollution Control Board (PCB), arguing that the County Board's proceedings were fundamentally unfair under the Act. STMD's theory is that the County Board "rubber-stamped" Waste Management's application because the County Board was "desperate" for a revenue stream to pay for a $30 million jail expansion. The PCB concluded that the County Board's proceedings were not fundamentally unfair and affirmed the County Board's decision.

¶ 3 STMD appeals to this court for direct administrative review of the PCB's decision. STMD renews its argument that the County Board's siting approval proceedings were fundamentally unfair because (1) the County Board's procedural rules barred the general public from participating in the hearing; (2) Waste Management engaged in improper ex parte communication by taking certain County Board members on tours of Waste Management's Prairie View Landfill in Will County; and

(3) the County Board prejudged Waste Management's application and approved it without a fair and impartial review. Respondents, the PCB, the County Board, and Waste Management, argue that (1) STMD was not prejudiced by the procedural restrictions, because the hearing officer relaxed those rules and allowed any member of the public, including members of STMD, to fully participate in the hearing; (2) the tours of the other landfill were not improper, because they occurred before Waste Management filed its application; and (3) there was no credible evidence that County Board members prejudged adjudicative facts. We have reviewed respondents' responses to STMD's arguments and conclude that STMD has not sustained its burden on review. Therefore, we affirm the PCB's decision.

¶ 4 I. BACKGROUND

¶ 5 A. The De Kalb County Landfill

¶ 6 The existing landfill is northeast of the intersection of Somonauk Road and Girler Road in unincorporated De Kalb County. The landfill is 245 acres and consists of an old area, a north area, and an active area. The old area is 24 acres that are believed to have operated from 1958 to 1974. The north area, which was constructed with a clay liner and without a synthetic standard liner, is 38 acres and was granted a permit in 1974; and filling was accomplished by the trench-fill method to the ground surface. The active area was granted a permit in 1989 and continues to receive waste.

¶ 7 The proposed expansion will consist of (1) the exhumation of the old area and disposal of the exhumed waste in a composite-lined cell, (2) development of a 61-acre waste disposal area above and adjoining the existing 88-acre waste footprint, and (3) the development of a 179-acre waste disposal area east of Union Ditch No. 1. The expansion will result in the landfill receiving about 1,800 tons of solid waste per day but no more than 500,000 tons per year. The expansion will add

23.2 million tons of capacity for 46 years on a 595-acre parcel. The service area of the expanded landfill will be 17 counties.

¶ 8 B. The Landfill Siting Process

¶ 9 Before expanding an existing pollution control facility, a facility operator must obtain construction and operation permits from the IEPA. 415 ILCS 5/39(a) (West 2010); see 415 ILCS 5/3.330(b)(2) (West 2010); 35 Ill. Adm. Code 812.101 (1994). Before the IEPA may grant the necessary permits, the facility operator must obtain from the local governmental unit siting approval for the expansion. See 415 ILCS 5/39(c), 39.2 (West 2010); 35 Ill. Adm. Code 812.105 (2006). Because the existing landfill is in unincorporated De Kalb County, the County Board is the local governmental unit that reviews siting approval applications for pollution control facilities. See 415 ILCS 5/39(c) (West 2010).

¶ 10 An applicant for local siting approval must submit sufficient details describing the proposed facility to demonstrate compliance, and the siting approval will be granted only if the proposed facility meets the nine criteria set forth in section 39.2(a) of the Act. 415 ILCS 5/39.2(a) (West 2010). The Act requires the siting authority to hold at least one public hearing concerning the application. 415 ILCS 5/39.2(d) (West 2010); Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 14. Any person may file written comments concerning the appropriateness of the proposed site, and the siting authority shall consider any comment received or postmarked not later than 30 days after the date of the last public hearing. 415 ILCS 5/39.2(c) (West 2010); Fox Moraine, 2011 IL App (2d) 100017, ¶ 14. Publicly expressing an opinion on an issue related to a site review proceeding shall not preclude a member of the siting authority from taking part in the proceeding and voting on the issue. 415 ILCS 5/39.2(d) (West 2010); Fox Moraine, 2011 IL App (2d) 100017, ¶ 14. The siting authority's decision must be in writing and must specify the reasons for the decision. 415 ILCS 5/39.2(e) (West 2010); Fox Moraine, 2011 IL App (2d) 100017, ¶ 14. In granting approval for a site, the siting authority "may impose such conditions as may be reasonable and necessary to accomplish the purposes of [section 39.2] and as are not inconsistent with regulations promulgated by the [PCB]." 415 ILCS 5/39.2(e) (West 2010). The public hearing shall develop a record sufficient to form the basis of an appeal of the decision. 415 ILCS 5/39.2(d) (West 2010).

¶ 11 Section 40.1(b) of the Act provides that, if the siting authority approves the application under section 39.2, "a third party other than the applicant who participated in the public hearing" may petition the PCB for a hearing to contest the approval. 415 ILCS 5/40.1(b) (West 2010). Unless the PCB determines that the petition is duplicative or frivolous, or that the petitioner is so located as to not be affected by the proposed facility, the PCB shall hear the petition in accordance with section 40.1(a) and its procedural rules governing denial appeals. The petitioner bears the burden of proof. 415 ILCS 5/40.1(b) (West 2010). Section 40.1(a) provides that "[i]n making its orders and determinations under this Section the [PCB] shall include in its consideration the written decision and reasons for the decision of the [siting authority], the transcribed record of the hearing held pursuant to [section 39.2(d)], and the fundamental fairness of the procedures used by the [siting authority] in reaching its decision." 415 ILCS 5/40.1(a) (West 2010). Hearings before the PCB are based exclusively on the record before the County Board, except that evidence may be introduced on the fundamental fairness of the County Board's siting procedures where the evidence necessarily is outside the record. Land & Lakes Co. v. Pollution Control Board, 319 Ill. App. 3d 41, 48 (2000).

¶ 12 Section 39.2(g) of the Act provides that the siting approval procedures, criteria, and appeal procedures provided for in the Act for new or expanded pollution control facilities shall be exclusive and that local zoning or other local land use requirements do not apply to such siting decisions. 415 ILCS 5/39.2(g) (West 2010). Notwithstanding section 39.2(g), the appellate court has held that a siting authority is not bound by the siting approval procedures, criteria, or appeal procedures provided for in the Act and may establish its own rules governing conduct of a siting hearing so long as those rules are fundamentally fair and not inconsistent with the Act. City of Elgin v. County of Cook, 257 Ill. App. 3d 186, 192 (1993); Waste Management of Illinois, Inc. v. Pollution Control Board, 175 Ill. App. 3d 1023, 1036 (1988).

¶ 13 In 2007, the County Board adopted a Regional Pollution Control Facility Siting Ordinance (Ordinance), which governs all proceedings regarding siting approval. De Kalb County Code § 50-51 et seq. (eff. Sept. 19, 2007). With certain exceptions that do not apply here, the Ordinance provides that no site approval for the development or construction of a new pollution control facility or expansion of an existing pollution control facility in De Kalb County may be granted by the County Board unless an application is filed for approval of such a site and is submitted for consideration to the County Board. De Kalb County Code § 50-52.

¶ 14 The Ordinance provides that, before submitting a siting application, the facility operator and the County Board must negotiate a host agreement. De Kalb County Code § 50-54(a)(1). Waste Management and the County Board began negotiating the host agreement for the landfill expansion in 2008. In February 2009, Waste Management made one presentation to the County Board's ad hoc solid waste committee and one presentation to the full board. The public was free to attend both meetings and to ask questions. The County Board sent notice of the meetings to the press, and the meetings were announced on the county's Web site. However, no member of the public attended either meeting. At the meetings, Waste Management familiarized the County Board with the draft host agreement and its financial terms.

¶ 15 Waste Management and the County Board signed the host agreement on March 18, 2009. The host agreement states that "[b]y entering into this Agreement, the County does not express any opinion or commitment with respect to the siting application" and that it will apply in the event of final siting approval. Among other things, Waste Management guaranteed at least 25 years' disposal capacity for non-hazardous waste generated by De Kalb County. Waste Management agreed to a property value guarantee plan and domestic water well monitoring for properties within one-half mile of the waste footprint. Waste Management agreed to indemnify De Kalb County for any liability relating to operation and closure and to carry general liability insurance of $10 million and pollution liability insurance of $20 million while the landfill is in operation and for 30 years thereafter. Waste Management also agreed to actively promote key responsibilities of environmental stewardship, including provisions for a methane gas recovery facility, citizen forum procedures, and a household hazardous waste collection program.

¶ 16 Once the County Board and Waste Management entered into the host agreement, the Ordinance authorized the County Board to conduct a prefiling review of a draft siting application to allow Waste Management to address concerns about the proposal before the broader application process began. See De Kalb County Code §§ 50-51, 50-54(a)(2). The County Board retained Patrick Engineering, a firm that conducted the prefiling review of Waste Management's application from July to November 2009 and made certain recommendations regarding the facility's design, location, and proposed operation to protect the public health, safety, and welfare. See 415 ILCS 5/39.2(a)(ii) (West 2010).

¶ 17 Following the prefiling review, the facility operator submits a formal application with the applicable fees. Waste Management filed its 7,000-page application on November 30, 2009. An application and all related documents are made available for public inspection (De Kalb County Code §50-54(b), (c), (d)), and any person may file a written comment with the County Board concerning the appropriateness of the proposed site for its intended purpose (De Kalb County Code § 50-55(a)).

¶ 18 The Ordinance establishes a Pollution Control Facility Committee (Committee), which consists of 7 of the County Board's 24 members, and the Committee elects a hearing officer. De Kalb County Code § 50-53. The Committee reviews the facility operator's application by examining the application, considering the written comments from the public, and convening the public hearing on the application. 415 ILCS 5/39.2(c), (d) (West 2010); De Kalb County Code 50-55, 50-56. The Ordinance provides that, during the public hearing, the Committee shall "receive testimony *** from the applicant and witnesses the applicant may call, any county witnesses, and other witnesses or objectors" and shall recommend approval only if the proposed facility meets the criteria set forth in section 39.2(a) of the Act. De Kalb County Code § 50-56(d).

ΒΆ 19 In this case, the Committee conducted a public hearing over six days from March 1, 2010, to March 11, 2010. Following the hearing, the Committee recommended approval of the application. On May 10, 2010, by a 16-to-8 vote, the County Board granted Waste Management's application for ...


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