Town & Country v. Pollution Control Bd.

• Decision Date: 22 March 2007
• Docket Number: No. 101619.,No. 101652.,101619.,101652.
• Citation: 225 Ill.2d 103,866 N.E.2d 227
• Parties: TOWN & COUNTRY UTILITIES, INC., et al., Appellees, v. The ILLINOIS POLLUTION CONTROL BOARD et al., Appellants.
• Court: Illinois Supreme Court

866 N.E.2d 227

225 Ill.2d 103

TOWN & COUNTRY UTILITIES, INC., et al., Appellees, v. The ILLINOIS POLLUTION CONTROL BOARD et al., Appellants.

No. 101619.

No. 101652.

Supreme Court of Illinois.

March 22, 2007.

Hinshaw & Culbertson, Chicago (Charles F. Helsten, Richard S. Porter, Nancy G. Lischer, of counsel), for appellants County of Kankakee and Edward D. Smith, as State's Attorney of Kankakee County.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, Brett E. Legner, Assistant Attorney General, Chicago, of counsel), for appellant Illinois Pollution Control Board.

George Mueller, of Mueller Anderson, P.C., Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., all of Ottawa, for appellees.

Justice FITZGERALD delivered the judgment of the court, with opinion:

This case arises out of an application to site a landfill filed by Town & Country Utilities, Inc., and Kankakee Regional Landfill, LLC (collectively, Town & Country). Under the Environmental Protection Act (Act), siting applications are to be heard by a local governing body, here the City of Kankakee (City). 415 ILCS 5/39.2 (West 2002). After a hearing, the City approved the application. The County of Kankakee (County) petitioned for a hearing before the Illinois Pollution Control Board (Board) to contest the City's decision. 415 ILCS 5/40.1 (West 2002). The Board reversed the City's finding that the application met the statutory criterion that the site be "so designed, located and proposed to be operated that the public health, safety and welfare will be protected." 415 ILCS 5/39.2(a)(ii) (West 2002). Town & Country appealed. 415 ILCS 5/41 (West 2002); 735 ILCS 5/3-101 et seq. (West 2002). The appellate court set aside the Board's decision, over a dissent, finding that the local authority was entitled to deference on this criterion rather than the Board. No. 3-03-0025 (unpublished order under Supreme Court Rule 23). We granted the Board's and the County's petition for leave to appeal. 210 Ill.2d R. 315. The central issue in this case is whether we must apply the manifest weight of the evidence standard of review to the City's decision or to that of the Board. We believe the standard of review should apply to the Board's decision and reverse the decision of the appellate court.

BACKGROUND

As the record in this case is lengthy, we summarize only the evidence necessary for an understanding of the instant matter. Initially, a review of the legal framework will be presented as a context for the issues. The authority of the Board finds its roots in the Illinois Constitution of 1970, which provides: "The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy." Ill. Const.1970, art. XI, § 1. In accordance with this directive, the General Assembly adopted the Environmental Protection Act in 1970. 415 ILCS 5/1 et seq. (West 2002). The purpose of the Act is "to establish a unified, statewide program" which, along with other remedies, is "to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them." 415 ILCS 5/2(b) (West 2002). Further, the legislature intended the Act to be liberally construed so as to effectuate its purposes. 415 ILCS 5/2(c) (West 2002).

The legislature established the Illinois Environmental Protection Agency (IEPA) (415 ILCS 5/4 (West 2002)) and the independent Pollution Control Board (415 ILCS 5/5 (West 2002)) to implement the Act. The Board consists of seven technically qualified members. 415 ILCS 5/5(a) (West 2002). The Board has authority to conduct proceedings, inter alia, "upon petition for review of the Agency's final determinations on permit applications in accordance with Title X [415 ILCS 5/39 et seq.]" and "other proceedings as may be provided by this Act or any other statute or rule." 415 ILCS 5/5(d) (West 2002).

All waste permitting is governed by title X of the Act (415 ILCS 5/39 through 40 (West 2002)). Generally, an applicant for a new pollution control facility must apply to the Agency to receive a permit. 415 ILCS 5/39(a) (West 2002). In 1981, the legislature amended the Act to require local government siting approval as a precondition to the issuance of an Agency permit. Pub. Act 82-682, eff. November 12, 1981; 415 ILCS 5/39(c) (West 2002). Prior to this amendment, commonly known as Senate Bill 172, this court had ruled that zoning ordinances of non-home-rule units of local government related to facilities governed by the Act were preempted by the Act. County of Cook v. John Sexton Contractors Co., 75 Ill.2d 494, 27 Ill. Dec. 489, 389 N.E.2d 553 (1979); see also City of Elgin v. County of Cook, 169 Ill.2d 53, 64, 214 Ill.Dec. 168, 660 N.E.2d 875 (1995). Senate Bill 172 overruled that decision and made clear that all units of local government, home rule and non-home-rule alike, have "concurrent jurisdiction" with the Agency in approving siting, subject to the criteria in section 39.2. City of Elgin, 169 Ill.2d at 64, 214 Ill.Dec. 168, 660 N.E.2d 875; Pub. Act 82-682, eff. November 12, 1981; 415 ILCS 5/39.2(c) (West 2002).

The Act provides that a local siting application shall be granted only if the proposed facility meets nine discrete criteria. 415 ILCS 5/39.2(a) (West 2004). That section requires the local siting authority to hold a public hearing and issue a written decision. 415 ILCS 5/39.2(d), (e) (West 2002). Among these requirements the proposed facility is "so designed, located and proposed to be operated that the public health, safety and welfare will be protected." 415 ILCS 5/39.2(a)(ii) (West 2002).

The local siting authority's decision may be appealed to the Board upon request. 415 ILCS 5/40.1 (West 2002). Section 40.1(a) governs an applicant's petition "for a hearing before the Board to contest the decision" of the local siting authority. 415 ILCS 5/40.1(a) (West 2002). Section 40.1(b) governs a third parties' petition for a hearing, to which the rules in section 40.1(a) apply, as well as the Board's "procedural rules governing denial appeals." 415 ILCS 5/40.1(b) (West 2002). The Board's hearing is "to be based exclusively on the record" before the local body and "[t]he burden of proof shall be on the petitioner." 415 ILCS 5/40.1(b) (West 2002). In cases where the local governing body has granted approval, the county board or the governing body of the municipality and the applicant shall be named co-respondents. 415 ILCS 5/40.1(b) (West 2002). The Board may take no new or additional evidence. 415 ILCS 5/40.1(a) (West 2002).

In making its determination, the Board shall include in its consideration the written decision and reasons for the decision of the local body and the transcribed hearing before that body. 415 ILCS 5/40.1(a) (West 2002). The hearing rules prescribed in sections 32 and 33(a) of the title X shall also apply. 415 ILCS 5/40.1(a) (West 2002), citing 415 ILCS 5/32, 33(a) (West 2002). The Pollution Control Board must consider all of the criteria, although a negative decision as to one of the criteria is sufficient to defeat an application for site approval of the pollution control facility. City of Rockford v. County of Winnebago, 186 Ill.App.3d 303, 316, 134 Ill.Dec. 244, 542 N.E.2d 423 (1989). If there is no final action by the Board within 120 days after the date on which it received the petition, the site location may be deemed approved. 415 ILCS 5/40.1(a) (West 2002). Judicial review shall be afforded directly in the appellate court and not in the circuit court. 415 ILCS 5/41(a) (West 2002).

Here, on March 13, 2002, Town & Country filed an application for a new regional pollution control facility on a site recently annexed into the City of Kankakee. Town & Country's application proposed a new municipal solid waste landfill of approximately 400 acres with a waste footprint of 236 acres. The proposed landfill would provide service to surrounding counties. The City held a hearing on the Town & Country application under section 39.2(a) (415 ILCS 5/39.2(a) (West 2002)). Several objectors as well as numerous members of the public were present. Among the objectors were the County, Waste Management of Illinois, Inc., which operated a nearby landfill, and residents of Otto Township, which encompassed the proposed site. Although there are several issues raised by the hearing, we concentrate on only the evidence pertaining to criterion (ii) (415 ILCS 5/39.2(a)(ii) (West 2002)).

The salient evidentiary issue presented by this appeal concerns the potential groundwater impact of the proposed landfill. Accordingly, much of the evidence in the record concerns the site's geology and hydrogeology. The parties disputed whether the geology underneath the proposed site was an "aquifer" or an "aquitard." An aquifer is a geologic formation that permits the flow of water. An aquitard is a geologic formation that retards the flow of water. The resolution of the aquifer/aquitard issue informed the City's determination as to whether the proposed facility was "so designed, located and proposed to be operated that the public health, safety and welfare will be protected." 415 ILCS 5/39.2(a)(ii) (West 2002).

Devin Moose testified, as a professional engineer, on behalf of Town & Country. Moose prepared the application and testified regarding the design and proposed operation of the proposed landfill. The application that Moose prepared stated that the area below the proposed landfill was generally not a reliable source of groundwater. Moose testified that the geology of the site consists of a relatively thin layer of glacial tills which were on top of the bedrock, otherwise called dolomite. Moose further characterized this bedrock as containing a "we...