Wabash and Lawrence Counties Taxpayers and Water Drinkers Ass'n v. Pollution Control Bd.

• Decision Date: 14 May 1990
• Docket Number: No. 5-89-0366,5-89-0366
• Citation: 555 N.E.2d 1081,144 Ill.Dec. 562,198 Ill.App.3d 388
• Parties: , 144 Ill.Dec. 562 WABASH AND LAWRENCE COUNTIES TAXPAYERS AND WATER DRINKERS ASSOCIATION, Appellant, v. POLLUTION CONTROL BOARD, the County of Wabash, and K/C Reclamation, Inc., Appellees.
• Court: United States Appellate Court of Illinois

Page 1081

555 N.E.2d 1081

198 Ill.App.3d 388, 144 Ill.Dec. 562

WABASH AND LAWRENCE COUNTIES TAXPAYERS AND WATER DRINKERS ASSOCIATION, Appellant, v. POLLUTION CONTROL BOARD, the County of Wabash, and K/C Reclamation, Inc., Appellees.

No. 5-89-0366.

Appellate Court of Illinois Fifth District.

May 14, 1990.

John A. Clark, Croegaert, Clark & Hough, Ltd., Olney, for appellant.

Richard L. Kline, Mt. Carmel, William A. Speary, Jr., Tenney & Bentley, Chicago, for K/C Reclamation, Ind.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Jan E. Hughes, Asst. Atty. Gen., of counsel), for Ill. Pollution Control Bd.

Stephen G. Sawyer, Wabash County State's Atty., for County of Wabash.

Justice RARICK delivered the opinion of the court:

Appellant, Wabash & Lawrence Counties Taxpayers and Water Drinkers Association (hereinafter Association) seeks review of the decision of the Illinois Pollution Control Board (hereinafter PCB) affirming the approval granted by the Wabash County Board of Commissioners (hereinafter Commissioners) of K/C Reclamation, Inc.'s application for site suitability for a proposed regional pollution control facility in Wabash County. We affirm.

On January 12, 1987, K/C Reclamation, Inc. (hereinafter K/C) filed an application for approval of site location for a proposed sanitary landfill and recycling facility on a 45-acre portion of a 172-acre parcel of land in the northeast corner of Wabash County. According to the application, the landfill was designed to accept general municipal refuse and non-hazardous special water from the area, including Wabash and Lawrence Counties, with an expected useful life of approximately 70 years. The Commissioners approved the application on July 6, 1987, after holding the required public hearings. The PCB vacated the decision, however, on the basis the Commissioners did not have jurisdiction to make a determination concerning K/C's application because K/C failed to comply with the notice requirements of section 39.2(b) of the Environmental Protection Act (hereinafter Act) (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2(b)). K/C refiled its original application for site-suitability approval with the Commissioners on January 20, 1988. After three days of public hearings, during which the transcript, exhibits and written comments from the hearings pertaining to K/C's first application were incorporated, the Commissioners again approved site suitability. The Association, in turn, once again appealed the Commissioners' decision to the PCB. This time, however, the PCB affirmed the Commissioners' decision. The Association now appeals both decisions.

The Association, having been successful once, again attempts to find violations of the statutory notice requirements in order to thwart the jurisdiction of the Commissioners to grant K/C approval. This time, however, the Association's argument is without merit. While it is true the notice requirements contained in section 39.2(b) of the Act are jurisdictional prerequisites which must be followed in order to vest the Commissioners with power to hear a landfill proposal (see Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1987), 162 Ill.App.3d 801, 805-06, 114 Ill.Dec. 649, 652, 516 N.E.2d 804, 807; Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill.App.3d 588, 593, 93 Ill.Dec. 918, 921, 487 N.E.2d 743, 746), the Association's allegations of three instances of improper notice here simply are not supported by the record.

Under section 39.2(b), notice is required to be sent to all owners of property within 250 feet of the property line of the proposed facility. "Owners" are defined as those persons or entities appearing from the authentic tax records of the county in which such facility is to be located. (See Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2(b).) The Association's first claim of error involves property that was listed on the tax records as owned by the heirs of a certain individual. It is true only one heir received notice, but only that heir was listed by name and address in the tax records to receive the tax statement on behalf of all the heirs. As K/C notified the owner of the property appearing from the authentic tax records, the PCB properly found the notice complied with section 39.2(b) of the Act even though all of the heirs did not receive personal notice. In the second instance of alleged error, the tax records listed a bank as owner of a certain parcel of land. The bank was duly notified. The fact that an individual was purchasing the land by contract for deed from the bank is irrelevant when that individual was not included in the tax records. Accordingly, K/C was not statutorily required to provide notice to the purchaser. The same holds true for the third instance of alleged improper notice. The fact that an individual may be living on neighboring property but is not listed in the tax records does not entitle him to notice under section 39.2(b). The Association's mere assertion that this individual owns the land is insufficient in and of itself to carry the burden of proving the Commissioners lacked jurisdiction to rule on K/C's application. Generally, as long as notice is in compliance with the statute and places those potentially interested persons on inquiry, it is sufficient to confer jurisdiction on the county board. (See Tate v. Pollution Control Board (1989), 188 Ill.App.3d 994, 1019, 136 Ill.Dec. 401, 418, 544 N.E.2d 1176, 1193.) The PCB committed no error in dismissing the Association's arguments pertaining to notice.

The Association's primary contention on appeal is that the proposed facility fails to meet three of the six statutory criteria required before site-suitability approval can be given. The Association therefore argues the decision of the Commissioners and PCB granting approval is against the manifest weight of the evidence.

In order to protect against arbitrary action on the part of a county board, section 39.2(a) of the Act sets forth six criteria which must be met before approval of new pollution control facilities can be given. (See Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2(a); see also Clutts v. Beasley (1989), 185 Ill.App.3d 543, 545, 133 Ill.Dec. 633, 634, 541 N.E.2d 844, 845; Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill.App.3d 434, 443, 112 Ill.Dec. 178, 183-84, 513 N.E.2d 592, 597-98.) These six criteria are:

"(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;

(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;

(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;

(iv) the facility is located outside the boundary of the 100 year flood plain on [sic ] the site is flood-proofed;

(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; * * *." (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2(a).)

The Association takes issue with the findings pertaining to criteria (i), (ii) and (v). We first note that in order to prevail here, the Association must demonstrate the PCB's decision is contrary to the manifest weight of the evidence. (See, e.g., Clutts, 185 Ill.App.3d at 546, 133 Ill.Dec. at 635, 541 N.E.2d at 846; Waste Management, 160 Ill.App.3d at 441-42, 112 Ill.Dec. at 182-83, 513 N.E.2d at 596-97; Willowbrook Motel v. Pollution Control Board (1985), 135 Ill.App.3d 343, 349, 90 Ill.Dec. 232, 236, 481 N.E.2d 1032, 1036.) That a different conclusion may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or indisputable. (Tate, 188 Ill.App.3d at 1022, 136 Ill.Dec. at 420, 544 N.E.2d at 1195; Willowbrook, 135 Ill.App.3d at 349, 90 Ill.Dec. at 236, 481 N.E.2d at 1036.) Furthermore, as a reviewing court we will not reweigh conflicting testimony or assess the credibility of witnesses. Tate, 188 Ill.App.3d at 1022, 136 Ill.Dec. at 420, 544 N.E.2d at 1195; Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill.App.3d 1023, 1030-31, 125 Ill.Dec. 524, 531, 530 N.E.2d 682, 689.

Specifically, with respect to criteria (i), the Association argues K/C failed to establish its landfill is necessary to accommodate the needs of the area intended to be served when the landfill in Lawrence County will accept Wabash County waste and has an 8- to 10-year lifespan which can be expanded to 60 years. Necessary under section 39.2, however, does not mean absolute necessity, but rather expedient, indicating some urgency, or reasonably convenient. (See Clutts, 185 Ill.App.3d at 546, 133 Ill.Dec. at 635, 541 N.E.2d at 846; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill.App.3d 1075, 1084, 79 Ill.Dec. 415, 422, 463 N.E.2d 969, 976; see also Tate, 188 Ill.App.3d at 1023, 136 Ill.Dec. at 420, 544 N.E.2d at 1195.) In other words, the applicant must show his landfill is reasonably required by the waste needs of the area, taking into consideration its waste production and disposal capabilities. (Waste Management, 175 Ill.App.3d at 1031, 125 Ill.Dec. at 530, 530 N.E.2d at 689; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill.App.3d 639, 645, 77 Ill.Dec. 919, 923, 461 N.E.2d...