Waste Management of Illinois, Inc. v. Illinois Pollution Control Bd.

• Decision Date: 11 September 1987
• Docket Number: No. 2-87-0029,2-87-0029
• Citation: 112 Ill.Dec. 178,513 N.E.2d 592,160 Ill.App.3d 434
• Parties: , 112 Ill.Dec. 178 WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation, Petitioner- Appellant and Cross-Appellee, v. ILLINOIS POLLUTION CONTROL BOARD, Respondent-Appellee (McHenry County Board, McHenry County Concerned Citizens and McHenry County Defenders, Respondents- Appellees and Cross-Appellants).
• Court: United States Appellate Court of Illinois

Page 592

513 N.E.2d 592

160 Ill.App.3d 434, 112 Ill.Dec. 178

WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation Petitioner- Appellant and Cross-Appellee, v. ILLINOIS POLLUTION CONTROL BOARD, Respondent-Appellee (McHenry County Board, McHenry County Concerned Citizens and McHenry County Defenders Respondents- Appellees and Cross-Appellants).

No. 2-87-0029.

Appellate Court of Illinois,

Second District.

Sept. 11, 1987.

Donald J. Moran (argued), Pedersen & Houpt, Chicago, Daniel F. Curran, Holmstrom & Green, Crystal Lake, Calvin P. Sawyier (argued), Nancy M. Kollar, James Russell, Winston & Strawn, Chicago, for Waste Management of Illinois, Inc. Neil F. Hartigan, Atty. Gen., Michael J. Maher (argued), Asst. Atty. Gen., Environmental Control Div., H. Alfred Ryan, Asst. Atty. Gen., Chief of Environmental Control Div., Roma Jones-Stewart, Sol. Gen., Dorothy M. Gunn, Illinois Pollution Control Bd., Chicago, Illinois E.P.A., Wayne Wiemerslage, Springfield, for Illinois Pollution Control Bd.

Michael F. Kukla, Cowlin, Ungvarsky, Kukla & Curran, Crystal Lake, for McHenry County Concerned Citizens.

Thomas F. Baker, McHenry County State's Atty., Paul R. Ryske, Asst. State's Atty., Chief, Civil Div., Woodstock, David R. Akemann (argued), Elgin, William F. Barrett, Asst. State's Atty., Civil Div., Geneva, Jerry Paulson, Crystal Lake, for McHenry County Bd.

Justice DUNN delivered the opinion of the court:

Waste Management of Illinois, Inc., petitioned the McHenry County board, pursuant to section 39.2 of the Environmental Protection Act (Act) ( Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2), for site location suitability approval of a new regional pollution control facility in unincorporated McHenry County. After 20 days of hearings comprising an approximately 4,000-page record, the county board denied the application. The county board's decision was upheld on review by the Illinois Pollution Control Board (PCB). (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1040.1(a).) Waste Management filed a timely petition for judicial review (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1041), requesting that we reverse the decision of the PCB. The McHenry County board, and the McHenry County concerned citizens and McHenry County defenders (hereinafter referred to as objectors) filed cross-appeals challenging particular portions of the PCB's decision.

A brief review of the pertinent sections of the Act is appropriate in order to put into context the issues raised by the parties. Section 39(c) of the Act provides that "no permit for the development or construction of a new regional pollution control facility may be granted by the [Environmental Protection] Agency unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board of the county if in an unincorporated area * * * in accordance with Section 39.2 of this Act." (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039(c)). At the time this proceeding was before the McHenry County board, section 39.2 provided in pertinent part:

"(a) The county board * * * shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:

(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 as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;

(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.1985, ch. 111 1/2, par. 1039.2(a).)

The county board found that Waste Management had satisfied criteria (i), (iv), (v) and (vi), but had failed to satisfy criteria (ii) and (iii). The request for location approval was therefore denied. Waste Management then petitioned for a hearing before the PCB to contest the decision of the county board as provided for in section 40.1(a) of the Act. (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1040.1(a).) The objectors cross-appealed, seeking review of the county board's findings on criteria (i), (iv), (v) and (vi). The pertinent portion of section 40.1(a) provides:

"The county board * * * shall appear as respondent in such hearing, and such hearing shall be based exclusively on the record before the county board * * *. * * * [N]o new or additional evidence in support of or in opposition to any finding, order, determination or decision of the appropriate county board * * * shall be heard by the [Pollution Control] Board. In making its orders and determinations under this Section, the Board shall include in its consideration the written decision and reasons for the decision of the county board * * *, the transcribed record of the hearing held [before the county board], and the fundamental fairness of the procedures used by the county board * * *." (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1040.1(a).)

On review, the PCB determined the county board's finding against Waste Management on criterion (iii) (compatibility) was against the manifest weight of the evidence. The PCB sustained the county board's findings on the remaining criteria. The PCB also found the procedures used by the county board were fundamentally fair. Therefore, the PCB upheld the county board's denial of Waste Management's site location petition because the proposal failed to satisfy criterion (ii) (public health, safety and welfare).

On administrative review before this court, Waste Management raises the following issues: (1) whether section 39.2(a) of the Act confers on the county board the authority to consider highly technical details of landfill design and construction; (2) whether in reviewing the county board's finding that the proposed landfill facility did not meet the public health, safety and welfare criterion, the PCB erred and abdicated its administrative function by giving presumptive validity to the county board's finding rather than applying its expertise in this technical area and resolving the conflicts in the expert testimony on its own; (3) whether all six criteria listed in section 39.2(a) of the Act need be satisfied in order for site location suitability approval to issue; and (4) whether the PCB erred in finding there was fundamental fairness in the decision-making process of the county board. On cross-appeal, the McHenry County board contends the PCB erred in determining that the county board's finding on the compatibility criteria was against the manifest weight of the evidence. The objectors' cross-appeal raises the same issue and also contests the PCB's decision to uphold the county board's findings on criteria (i), (v) and (vi).

In view of our resolution of the issues raised by the parties, we need not elaborate on the evidence presented at the county board hearing.

I.

Waste Management first contends that section 39.2 of the Act does not confer on the county board the authority to determine highly technical details of landfill design and construction. Waste Management claims these matters are outside the realm of expertise of a county board and should be left to the discretion of the PCB. We disagree. Section 39.2 grants to the county board the power to determine whether the proposed location for a sanitary landfill meets the six criteria established by the legislature. Included among the six criteria governing site location suitability is:

"(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected * * *." (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2(a)(ii).)

We believe this provision clearly and unambiguously provides that the county board is empowered to consider all the public health, safety and welfare ramifications surrounding the design, location and operation of the proposed facility. Adopting Waste Management's position would vitiate the fact-finding authority granted to the county board in criterion (ii) because technical information of varying degrees must be addressed in order for the local authority to assess the effect the proposed facility will have on the public health, safety and welfare. Consequently, we are not persuaded that the legislature intended to limit the public safety criterion in the manner suggested by Waste Management. Rather, we conclude that the county board does have the authority to consider any and all of the technical details associated with the landfill siting decision.

Our conclusion is consistent with the reported decisions directly addressing this question or otherwise alluding to it. County of Lake v. Pollution Control Board (1983), 120 Ill.App.3d 89, 97-99, 75 Ill.Dec. 750, 457 N.E.2d 1309; see McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill.App.3d 89, 101, 106 Ill.Dec. 665, 506 N.E.2d 372; Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill.App.3d 588, 592, 93 Ill.Dec. 918, 487 N.E.2d 743; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill.App.3d 1075, 1091, 79 Ill.Dec. 415, 463 N.E.2d 969; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill.App.3d 639, 645, 77 Ill.Dec. 919, 461 N.E.2d 542.

In County of Lake, the issue was raised in the context of a county board's power to impose technical conditions on site...