Land and Lakes Co. v. Illinois Pollution Control Bd.

• Decision Date: 27 May 1993
• Docket Number: No. 2624E,P,No. 3-92-0496,2624E,3-92-0496
• Citation: 616 N.E.2d 349,245 Ill.App.3d 631
• Parties: , 186 Ill.Dec. 396 LAND AND LAKES COMPANY, JMC Operations, Inc., and NBD Trust Company of Illinois as Trustee Under Trustetitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Village of Romeoville, and County of Will, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 349

616 N.E.2d 349

245 Ill.App.3d 631, 186 Ill.Dec. 396

LAND AND LAKES COMPANY, JMC Operations, Inc., and NBD Trust Company of Illinois as Trustee Under Trust No 2624EG, Petitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Village of Romeoville, and County of Will, Respondents-Appellees.

No. 3-92-0496.

Appellate Court of Illinois Third District.

May 27, 1993.

As Modified on Denial of Rehearing June 30, 1993.

Stephen F. Hedinger, Fred C. Prillaman, argued, Mohan, Alewelt, Prillaman & Adami, Springfield, for Land and Lakes Co., JMC Operations, Inc. and NBD Trust Co. of Illinois.

Roland W. Burris, Atty. Gen. State of Illinois, Deborah L. Ahlstrand, argued, Asst. Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago, for Pollution Control Bd.

Lyman C. Tieman, Lyman C. Tieman & Associates, Joliet, for Village of Bolingbrook.

Matthew M. Klein, argued, Glenn C. Sechen, Schain, Firsel & Burney, Ltd., Chicago, James Glasgow, Will County State's Atty., Richard I. Siegel, Asst. State's Atty., Misty Turner, Will County Asst. State's Atty., Joliet, for County of Will.

Nancy A. McKeating, Schwartz & Freeman, Oakbrook Terrace, amicus curiae.

MODIFIED UPON DENIAL OF REHEARING

Presiding Justice McCUSKEY delivered the opinion of the court:

The petitioners, Land and Lakes Company, JMC Operations, Inc. and NBD Trust Company of Illinois, as trustee under Trust No. 2624EG, own and operate the Willow Ranch landfill (landfill). The landfill is located in Will County within the corporate boundaries of the Village of Romeoville (Village). The Village denied the petitioners' application for site approval of a proposed expansion of the landfill. The Illinois Pollution Control Board (Board) affirmed the Village's decision, and the petitioners' appeal from the Board's ruling.

The petitioners raise six issues on appeal: (1) whether the landfill siting approval process of section 39.2 of the Environmental Protection Act (Act) (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1039.2), which provides for decision-making by local legislative bodies, is unconstitutional; (2) whether the Board erred in allowing Will County to intervene in the proceedings; (3) whether the Board lacked jurisdiction to reconsider its decision after the Board made its initial ruling; (4) whether the Board erred in failing to hold the Village bound by the factual assertions the Village made before the Board; (5) whether the Board erred in entering an order remanding the cause to the Village; and (6) whether the Board erred in determining that the proposed landfill expansion was not necessary to accommodate the waste needs of the intended service area.

Based upon our review of the record, we conclude that Will County deprived the petitioners of a fundamentally fair hearing on the application for site approval of the proposed landfill expansion. Will County's attorney failed to disclose to the Village's hearing officer that Will County was taking legal action to prevent the reopening of the Wheatland Prairie Landfill (Wheatland). As a result, the Village's hearing officer made his findings of fact based upon the incorrect assumption that Wheatland was an available site to accept waste from the area intended to be served. As a consequence, we reverse the Board's rulings and remand the cause to the Village for a completely new public hearing.

In March 1990, an advisory referendum was held in the Village. In response to the question of whether the Village should approve the expansion of the landfill, 1,561 voters voted against the landfill expansion while only 323 voters supported the proposal. The petitioners subsequently filed an application for local siting approval of the landfill expansion pursuant to section 39.2 of the Act (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1039.2). The 1100-page application set out detailed documentation regarding the relevant statutory criteria required for siting approval. (See Ill.Rev.Stat.1991, ch. 111 1/2, par. 1039.2(a).) A public hearing concerning the application was held before a hearing officer hired by the Village. Will County also participated in the public hearing as a party.

The petitioners presented the testimony of three witnesses regarding the first statutory criterion which requires that "the facility is necessary to accommodate the waste needs of the area it is intended to serve" (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1039.2(a)(i)). Charles Haas, an environmental consultant, had prepared a study of the petitioners' intended service area which included portions of Will, Du Page and Cook Counties. Haas testified the landfill expansion was necessary to meet the waste disposal needs of the intended service area. Haas stated in his written report that "[u]nless additional capacity is placed on line, a deficiency [in disposal capacity] will occur as soon as 1992 for the service area and 1993 for Will County." Haas excluded Wheatland from his analysis. While Wheatland had available capacity and was located within the intended service area, the record discloses that Wheatland ceased receiving waste as of March 1990. During cross-examination by a Will County assistant state's attorney, Haas was pointedly asked whether Wheatland could, in fact, reopen at any time. Haas answered, "Yes." The assistant state's attorney then asked Haas a lengthy series of questions about whether Wheatland should have been included in Haas' report. Haas later testified that there was no reasonable expectation Wheatland would ever reopen.

Rolf Campbell, a planning and zoning consultant, and James Ambroso, vice president of environmental affairs for Land and Lakes, also testified that the proposed landfill expansion was needed. During cross-examination, Will County's assistant state's attorney asked both Campbell and Ambroso whether Wheatland could be reopened at any time. Both responded that it could.

Kevin Standbridge, Will County's solid waste director, testified on behalf of Will County on the issue of need. He testified the landfill expansion was not necessary to meet the waste disposal needs of either Will County or the petitioners' intended service area. Standbridge testified that Wheatland had only temporarily suspended its landfill operations. He specifically stated the closing "is in no way a permanent or * * * long term closing of the facility."

Following the public hearing, Will County submitted its written argument and proposed findings of fact. Will County argued that existing landfills, including Wheatland, were available to fill the waste disposal needs of the intended service area. Will County further argued that Haas' testimony on behalf of the petitioners was unpersuasive because he did not consider Wheatland in assessing need. Will County stated, "Haas discounted Wheatland even though he admitted it was closed only to reserve space for when it could bring a better price, and that it could reopen at any time."

Based upon this evidence, the Village's hearing officer prepared a recommended decision and his findings of fact. The hearing officer recommended to the Village that the petitioners' application be denied. He found the Village did not have jurisdiction to approve the proposed siting application because the petitioners had failed to notify two neighboring landowners of the filing of the application. The hearing officer also recommended to the Village that the application be denied because the petitioners had failed to meet the burden of proving that the landfill expansion was needed. The Village's hearing officer specifically found that Wheatland should have been taken into account by the petitioners' witnesses because it could be reopened at any time and "[t]here was no evidence that there is any technical problem with the Wheatland site." The hearing officer further found it was likely that Wheatland would be reopened before the remaining capacity was exhausted in the intended service area.

The Village Board held a meeting on December 6, 1990, to review the petitioners' application for site approval. On the same day, the petitioners filed a motion to supplement the record. Attached to the motion was a copy of a complaint filed by Will County. The complaint stated that Will County was seeking to enjoin any further operation of Wheatland based upon alleged environmental hazards. A docket sheet was also attached to the motion. The docket sheet indicated that the case was still pending in the circuit court of Will County.

At the meeting, Will County argued that the petitioners' motion to supplement the record should be denied. Will County contended the lawsuit was not relevant to the petitioners' application because no injunction had been entered by the circuit court. The attorney representing the petitioners disagreed, stating:

"I can't really believe what I'm hearing from lawyers who are involved in a lawsuit right down the road in Joliet that says that Wheatland Prairie Landfill is such a bad place, so environmentally unsafe that it should be shutdown and yet they stand before this Board in all of our hearings that lasted over three weeks [and] said that Wheatland Prairie should be considered in your consideration of need."

The Village Board granted the petitioners' motion and agreed to take judicial notice of the lawsuit. The Village's hearing officer was also present at the meeting. However, the hearing officer stated at the meeting that he did not know there was a lawsuit pending regarding Wheatland.

At a meeting held on December 12, 1990, the Village voted to deny the petitioners' application for site approval. The written resolution adopted by the Village stated that the petition was denied because the petitioners failed to give proper notice of the filing of their siting application. Also, we note the Village's resolution included the hearing officer's recommended findings regarding Wheatland. Finally, the Village's resolution denying the petitioners' application for site approval also included...