Land and Lakes Co. v. ILLINOIS PCB
| Citation | 252 Ill.Dec. 614,743 N.E.2d 188,319 Ill.App.3d 41 |
| Decision Date | 28 December 2000 |
| Docket Number | No. 3-99-0819., No. 3-99-0689 |
| Parties | LAND AND LAKES COMPANY, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD, Will County Board, and Waste Management of Illinois, Inc., Respondents. Sierra Club, Audubon Council of Illinois, and Illinois Audubon Society, Petitioners, v. Illinois Pollution Control Board, Will County Board, and Waste Management of Illinois, Inc., Respondents. |
| Court | United States Appellate Court of Illinois |
Elizabeth S. Harvey (argued), Kristin Dvorsky-Tauras, McKenna, Storer, Rowe, White & Farrug, Chicago, for Land and Lakes Company.
Albert F. Ettinger (argued), Environmental Law & Policy Center of the Midwest, Chicago, for Sierra Club.
Charles F. Helsten, Robert C. Torbert, Richard S. Porter (argued), Hinshaw & Culbertson, Rockford, for Will County Board.
Donald J. Moran (argued), Pedersen & Houpt, Chicago, for Waste Management of Illinois, Inc.
James Ryan, Attorney General, Marcia L. McCormick (argued), Assistant Attorney General, Joel D. Bertocchi, Solicitor General, Chicago, for Illinois Pollution Control Board.
Christine G. Zeman, Hodge & Dwyer, Springfield, for Appellee.
The Illinois Pollution Control Board (PCB) affirmed the decision of the Will County Board (County Board) to grant siting approval to Waste Management of Illinois, Inc. (WM), for the construction of a pollution control facility. Petitioners, Land and Lakes Company (LALC) and Sierra Club, Audubon Council of Illinois, and Illinois Audubon Society (referred to hereinafter collectively as "Sierra Club") seek review of the PCB's decision. In particular, petitioners contend that the proceedings before the County Board were fundamentally unfair and the County Board's decision is against the manifest weight of the evidence. For the reasons that follow, we affirm.
Under the Illinois Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 1998)), a party seeking to develop a pollution control facility must first obtain approval of the site location from the appropriate local siting authority. 415 ILCS 5/39(c) (West 1998). If the proposed site lies within an unincorporated area, the appropriate local siting authority is the county board for the county where the facility is to be located. 415 ILCS 5/39(c) (West 1998). A developer who obtains approval from the local siting authority must still obtain the permission of the Illinois Environmental Protection Agency in order to construct and operate the facility. 415 ILCS 5/39(c) (West 1998).
An applicant seeking siting approval must submit sufficient details of the proposed facility demonstrating that it meets each of nine criteria. 415 ILCS 5/39.2(a) (West 1998). The local siting authority must hold at least one public hearing concerning the application. 415 ILCS 5/39.2(d) (West 1998). Any person may file written comment concerning the proposed facility and the local siting authority must consider any such comments received or postmarked no later than 30 days after the date of the last public hearing. 415 ILCS 5/39.2(c) (West 1998).
The decision of the local siting authority must be in writing and must specify the reasons for the decision. 415 ILCS 5/39.2(e) (West 1998). Any party, other than the applicant, who participated in the public hearing may petition the PCB to contest a local siting authority's decision to grant the application. 415 ILCS 5/40.1(b) (West 1998). In reviewing the decision, the PCB must consider the local siting authority's written decision, the transcript of the public hearing, and "the fundamental fairness of the procedures used by the [local siting authority] in reaching its decision." 415 ILCS 5/40.1(a) (West 1998). The decision of the PCB is directly appealable to this court. 415 ILCS 5/41 (West 1998); 155 Ill.2d R. 335.
The case at bar involves a proposal to develop a solid waste landfill on the site of the former Joliet Army Ammunition Plant (the Arsenal). The Arsenal occupies an approximately 23,437-acre area of southern Will County. At various times beginning in the 1940s, the U.S. Army and its contractors have manufactured and tested ordnance and explosives on the site.
In 1996, Congress passed the Illinois Land Conservation Act of 1995, Pub.L. No. 104-106, 110 Stat. 594 (1996). Under this legislation, the Arsenal is to be converted to various nonmilitary uses, including the 19,000-acre Midewin National Tallgrass Prairie, a 982-acre national veterans cemetery, a 3,000 acre industrial park, and a 455-acre landfill to be owned by Will County. As a condition of the conveyance of the 455-acre parcel to Will County, the federal government "may use the landfill * * * for the disposal of construction debris, refuse, and other materials related to any restoration and cleanup of Arsenal property * * * subject to applicable environmental laws and at no cost to the [f]ederal [g]overnment." Pub.L. No. 104-106, § 2922(c), 110 Stat. 594, 605 (1996).
Subsequently, the County Board awarded WM a contract to design, construct, and operate a landfill on the Arsenal property. The County Board also awarded a contract to Engineering Solutions, Inc., (Engineering Solutions) to provide WM and Will County with advice concerning compliance with the Act's siting approval criteria.
The County Board then enacted the Will County Siting Ordinance for Pollution Control Facilities (the Siting Ordinance) (eff. April 16, 1998). Under the Siting Ordinance, the Pollution Control Facility Committee (the Committee), a three-member committee of the County Board, hears the evidence presented at the public hearing. At the close of the public hearing and upon request of the Committee, county departments may submit reports and recommendations to the Committee. Based on the evidence at the public hearing, material submitted during the public comment period, and any reports received, the Committee determines whether the siting applicant has met the statutory criteria and makes its recommendation to the full County Board. The County Board then takes the final decision on the application.
In August 1998, WM filed its application to construct and operate a solid waste landfill to be known as the "Prairie View Recycling and Disposal Facility" (Prairie View). An eight-day public hearing on WM's application concluded on December 7, 1998. Several hearing participants filed memoranda during the subsequent public comment period. On the last day for public comment, WM submitted a reply memorandum along with several technical reports.
After the close of the public comment period, Dean Olson, the then director of the Waste Services Division of the Will County Land Use Department (Waste Services) submitted to the Committee a report entitled "Final Report and Recommendations of Will County to the Pollution Control Facility Committee Concerning the Prairie View RDF Siting Application" (the Olson Report). The report, prepared by Waste Services' staff, Engineering Solutions' employees, and Charles Helsten (a special assistant state's attorney), recommends granting WM's application subject to 52 conditions.
The Committee adopted the findings and recommendations of the Olson Report as its recommendation to the County Board. After debating the matter, the County Board voted to grant WM's application. The County Board also adopted the findings of the Olson Report, but added five conditions to the 52 recommended in the report.
Petitioners appealed the County Board's decision to the PCB on grounds that the proceedings before the County Board had been fundamentally unfair and that the decision to grant WM's application is contrary to the manifest weight of the evidence. The PCB held an evidentiary hearing concerning the fundamental fairness claim.
At the hearing, Christopher Rubak, a senior WM engineer, testified that he worked on the development of the Prairie View siting application. Rubak recalled that WM submitted a preliminary version of the application to Waste Services and Engineering Solutions. Waste Services' staff and Engineering Solutions' employees made handwritten comments on the draft application and returned it to WM. WM considered the comments. WM revised the draft application in response to some of the comments, but chose not to make any revisions with respect to others. WM had no contact with County Board members concerning the drafting of the application and had no contact with County Board members, Waste Services' staff, or Engineering Solutions' employees after WM filed its application. WM destroyed all preliminary drafts of the application.
The only other witness to testify was Charles Helsten, the special assistant state's attorney who helped draft the Olson Report. Helsten identified a letter he had written to WM in April 1998 that advised WM to communicate with Waste Services through Donna Shehane, a Waste Services staff member, rather than through Director Dean Olson. In the letter, Helsten explains that this precaution is necessary because, due to his position, Olson must consult with the County Board. Helsten also testified that he cautioned Waste Services and other Will County departments that they should not communicate with County Board members concerning the Prairie View application.
The PCB affirmed the decision of the County Board. It is from this order that petitioners appeal.
On appeal, petitioners contend that the proceedings before the County Board were fundamentally unfair.
A nonapplicant who participates in a local pollution control facility siting hearing has no property interest at stake entitling him to the protection afforded by the constitutional guarantee of due process. Southwest Energy Corp. v. Pollution Control Board, 275 Ill.App.3d 84, 211 Ill.Dec. 401, 655 N.E.2d 304 (1995). However, under section 40.1 of the Act (415 ILCS 5/40.1 (West 1998)), such a party has...
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