{ "id": 2592763, "name": "METROPOLITAN WASTE SYSTEMS, INC., et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents", "name_abbreviation": "Metropolitan Waste Systems, Inc. v. Pollution Control Board", "decision_date": "1990-08-07", "docket_number": "No. 3-90-0021", "first_page": "51", "last_page": "56", "citations": [ { "type": "official", "cite": "201 Ill. App. 3d 51" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "461 N.E.2d 542", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522729 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0639-01" ] }, { "cite": "542 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658743 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0303-01" ] }, { "cite": "513 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650140 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0434-01" ] }, { "cite": "529 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515352 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0906-01" ] } ], "analysis": { "cardinality": 478, "char_count": 9985, "ocr_confidence": 0.774, "pagerank": { "raw": 5.9112621469126825e-08, "percentile": 0.36939663277665996 }, "sha256": "b38d8ead216ce5f91f55095640576568e2c806694bba0f349a7ac403f7913006", "simhash": "1:2fa1645e628c9c85", "word_count": 1615 }, "last_updated": "2023-07-14T22:48:55.467533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "METROPOLITAN WASTE SYSTEMS, INC., et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nThe petitioners, Metropolitan Waste Systems, Inc., Spicer, Inc., and Spicer Properties, Inc., sought local siting approval from the respondent, the city of Marseilles, for a new regional pollution control facility. Following a hearing conducted pursuant to section 39.2(d) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. HV-k, par. 1039.2(d)), the city denied the petitioners\u2019 request for siting approval. The petitioners appealed the city\u2019s decision to the respondent, Illinois Pollution Control Board (PCB), pursuant to section 40.1 of the Act (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1040.1), and the PCB affirmed the decision of the city. The petitioners appeal.\nThe issues raised on appeal are: (1) whether the city was authorized under the Act to alter the intended service area; and (2) whether the PCB properly found that the city\u2019s denial of the petitioners\u2019 local siting application was not against the manifest weight of the evidence.\nIn January 1988, the petitioners filed a request with the city for site location approval for a new regional pollution control facility pursuant to section 39.2 of the Act. Various objectors then filed suit seeking to enjoin the city council from conducting the required hearing, claiming that the city was institutionally biased in favor of the application. The trial court dismissed the suit, and this court affirmed the dismissal. Woodsmoke Resorts, Inc. v. City of Marseilles (1988), 174 Ill. App. 3d 906, 529 N.E.2d 274.\nThe city then retained an environmental attorney, Harvey Sheldon, to act as an independent hearing officer for the application. Following a lengthy hearing, Sheldon concluded that criteria (i) and (iii) through (ix) of section 39.2(a) of the Act (Ill. Rev. Stat. 1989, ch. 111V2, pars. 1039.2(a)\u00ae, (a)(iii) through (a)(ix)) had been met by the petitioners. With regard to criterion (ii), however, Sheldon concluded that more site-specific data regarding the bedrock were required.\nThe petitioners then moved to reopen the hearing and to extend the date for decision in order to address Sheldon\u2019s concerns. The motion was denied, and before the city rendered a final decision, the petitioners withdrew their application.\nOn January 17, 1989, the petitioners filed a new application for site approval for the same location as the 1988 application. In addition, the petitioners submitted the results of additional bedrock studies. After the public hearing, Sheldon, the hearing officer for this application also, determined that the petitioners had met their burden of proof on each of the criteria set forth in section 39.2 of the Act.\nOn July 26, 1989, the city issued its decision. The city adopted Sheldon\u2019s findings and recommendations with respect to sections 39.2(a)(iii) through (a)(ix). (Ill. Rev. Stat. 1989, ch. lllVa, pars. 1039.2(a)(iii) through (a)(ix).) The city, however, found that the petitioners failed to meet their burden of proof regarding criteria (i) and (ii). (Ill. Rev. Stat. 1989, ch. llD/z, pars. 1039.2(a)(i), (a)(ii).) The city, therefore, denied site approval. In so doing, the city rejected the findings of the expert it retained to review the application. We note, however, that no question was raised regarding whether the city is authorized to summarily reject the opinion of its own retained expert in such a technical field.\nOn July 27, 1989, the petitioners filed their petition with the PCB pursuant to section 40.1 of the Act. (Ill. Rev. Stat. 1989, ch. HV-k, par. 1040.1.) The petitioners argued that the city\u2019s decision finding that the petitioners failed to meet their burden of proof on section 39.2(a) criteria (i) and (ii) was against the manifest weight of the evidence.\nOn December 6, 1989, the PCB issued its order and opinion upholding the city\u2019s decision. A majority of the PCB held that the hearing was fundamentally fair and the city\u2019s findings that the petitioners had failed to meet criterion (ii) were supported by the manifest weight of the evidence. However, no majority could be reached on whether the city\u2019s findings that the petitioners had failed to meet criterion (i) were against the manifest weight of the evidence.\nThe PCB members subsequently filed three supplemental opinions. In sum, the three supplemental opinions demonstrate that: (1) Three PCB members believed that the city could alter the \u201cintended service area,\u201d while three PCB members believed that the city could not alter the \u201cintended service area,\u201d and (2) by a 4 to 2 vote, a majority of the PCB members believed that the city\u2019s denial on criteria (i) and (ii) was not against the manifest weight of the evidence.\nAll of the statutory criteria set forth in section 39.2(a) must be satisfied before a local board may approve a local siting application. (Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592.) In reviewing the PCB\u2019s decision in the instant case, we are limited to a determination of whether the administrative agency\u2019s decision is contrary to the manifest weight of the evidence, and, as such, a reviewing court should not reweigh the conflicting testimony. City of Rockford v. County of Winnebago (1989), 186 Ill. App. 3d 303, 542 N.E.2d 423.\nIn the petitioners\u2019 application, the proposed service area for the facility is made up of La Salle, Grundy, Kendall, Will, Du Page, Kane, McHenry, Cook, and Lake Counties in Illinois. One of the petitioners\u2019 principal witnesses, Dr. Charles Haas, testified at the hearing that in his opinion the facility is necessary to accommodate the waste needs of the area it is intended to serve. While Haas testified that existing facilities had only a 41/2-year life expectancy, he also stated that, when considered individually, Grundy County had a facility with a remaining life expectancy of 7.7 years, Du Page County\u2019s facility had a remaining life expectancy of nine years, Kane County\u2019s facility had a life expectancy of 6.5 years, and La Salle County\u2019s facility had a remaining life expectancy of seven years. The city and PCB concluded, therefore, that the petitioners\u2019 facility is not needed in the area intended to be served.\nUnder criterion (i), the petitioners must establish that the site location is necessary for the area to be served. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1039.2(a)(i).) In reviewing PCB decisions regarding site location approval, an applicant need not show absolute necessity in order to satisfy criterion (i). (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639, 461 N.E.2d 542.) In denying the petitioners\u2019 application, the city noted the petitioners did not establish that the facility was necessary because, absent the inclusion of Cook and Lake Counties in the intended service area, the instant facility was not needed. Section 39.2(a)(i) of the Act provides that the applicant has the burden of establishing that \u201cthe facility is necessary to accommodate the waste needs of the area it is intended to serve.\u201d (Ill. Rev. Stat. 1989, ch. lllVa, par. 1039.2(a)(i).) We read the statute to mean that it is the applicant who defines the intended service area, not the local decision-making body. Therefore, because the city had no authority to amend the intended service area and because the city itself noted inferentially that with Cook and Lake Counties included in the intended service area, the petitioners would have proven need, we conclude that the petitioners satisfied criterion (i).\nSection 39.2(a)(ii) requires that the petitioners establish that the \u201cfacility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected.\u201d (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039.2(a)(ii).) The petitioners presented expert testimony to the effect that the proposed facility would comply with criterion (ii). The city presented expert testimony to the effect that the facility would not comply with criterion (ii). The petitioners argue that their witnesses were the only credible witnesses to testify in the instant case.\nThe petitioners assert that the opinions expressed by the city\u2019s expert witness, Dr. Nolan Aughenbaugh, have no recognized scientific basis. Dr. Aughenbaugh stated that in his opinion, the site is underlain by a continuous system of vertical fractures that extends all the way to the St. Peter sandstone protecting the St. Peter aquifier. He further stated that, contrary to the petitioners\u2019 expert, the clay liner was not sufficiently plastic to prevent flexure. Dr. Aughenbaugh, moreover, admitted that he had no way to verify his theory. We note that this St. Peter sandstone overlays the entire State of Illinois. Therefore, according to Dr. Aughenbaugh\u2019s theory, there is no way to build a safe landfill in the State of Illinois. It is the PCB, however, that is the governing body properly designated with the duty to weigh the credibility, or lack thereof, of such witnesses. Accordingly, since it is not our function to determine which witnesses are more expert than others, and since we may not decide controverted facts, we are of the opinion that the PCB\u2019s decision as to criterion (ii) will stand.\nFor the foregoing reasons, we affirm the decision of the Illinois Pollution Control Board.\nAffirmed.\nSCOTT and GORMAN, JJ., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Jenner & Block, of Chicago (Russell J. Hoover, of counsel), for petitioners.", "Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Matthew J. Dunn and Michelle D. Jordan, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.", "Daniel J. Bute, of Ottawa, for respondent City of Marseilles.", "George Mueller, of Hoffman, Mueller, Creedon & Twohey, of Ottawa, for amicus curiae." ], "corrections": "", "head_matter": "METROPOLITAN WASTE SYSTEMS, INC., et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents.\nThird District\nNo. 3-90-0021\nOpinion filed August 7, 1990.\nJenner & Block, of Chicago (Russell J. Hoover, of counsel), for petitioners.\nNeil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Matthew J. Dunn and Michelle D. Jordan, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.\nDaniel J. Bute, of Ottawa, for respondent City of Marseilles.\nGeorge Mueller, of Hoffman, Mueller, Creedon & Twohey, of Ottawa, for amicus curiae." }, "file_name": "0051-01", "first_page_order": 71, "last_page_order": 76 }