Peoria Disposal Company v. Illinois Pollution Control Board

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 3rd District Appellate » 2008 » Peoria Disposal Company v. Illinois Pollution Control Board

State: Illinois

Court: 3rd District Appellate

Docket No: 3-07-0435 Rel

Case Date: 10/07/2008

Preview:No. 3--07--0435 ______________________________________________________________________________ Filed October 7, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 PEORIA DISPOSAL COMPANY, ) Appeal from the Illinois ) Pollution Control Board, Petitioner-Appellant, ) Docket No. PCB 06-184 ) v. ) ) ILLINOIS POLLUTION CONTROL ) BOARD and COUNTY OF PEORIA, ) ) Respondent-Appellees. ) ______________________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ______________________________________________________________________________ Petitioner, Peoria Disposal Company (the company), applied for local siting approval to expand its regional landfill in Peoria County. The Peoria County Board (the county board) denied the application. The company petitioned the Pollution Control Board (the PCB) for review of that decision. The PCB upheld the county board's ruling. The company appeals the PCB's decision directly to this court, arguing that: (1) the application should be deemed approved by operation of law because the county board failed to take final action upon the application within the time period required by statute, (2) the proceedings before the county board were fundamentally unfair, and (3) the determination that the company had failed to meet the statutory siting criteria is against the manifest weight of the evidence. We confirm the PCB's ruling. FACTS The company owns and operates a 32-acre landfill in unincorporated Peoria County and has

done so for several years. The landfill receives industrial waste, a portion of which is hazardous waste. Over time, new residential development has grown toward the landfill on the east and north sides of the company's property. The nearest residence is about 200 or 300 feet from the boundary of the current facility. In November of 2005, the company sought local approval to expand the landfill by 45 feet vertically and 8 acres horizontally. The expansion would allow the landfill to continue to operate for an additional 15 years and to take in over 2 million tons of additional waste. The statutory procedure for such an expansion is set forth in the Illinois Environmental Protection Act (415 ILCS 5/1 et seq. (West 2006)) (the Act). Under the Act, before a party may obtain a permit from the Illinois Environmental Protection Agency to build or expand upon a pollution control facility, it must first obtain siting approval from the local government (the local siting authority) where the facility is to be located. 415 ILCS 5/39.2(a) (West 2006). To do so, the applicant must prove to the local siting authority that nine statutory criteria have been satisfied. 415 ILCS 5/39.2(a) (West 2006). The applicant must show that: "(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)(A) for a facility other than a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed; (B) for a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100-year flood plain, or if the facility is a facility described in subsection (b)(3) of Section 22.19a, 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,

2

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; (vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; (viii) if the facility is to be located in a county where the county board has adopted a solid waste management plan consistent with the planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan ***; and (ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met." 415 ILCS 5/39.2(a) (West 2006). If the applicant fails to satisfy any one of the statutory criteria, the application for siting approval will be denied by the local siting authority. 415 ILCS 5/39.2(a) (West 2006); A.R.F. Landfill, Inc. v. Pollution Control Board, 174 Ill. App. 3d 82, 90, 528 N.E.2d 390, 395 (1988). Pursuant to the statutory procedure, the company applied with Peoria County for local siting approval of the expansion. See 415 ILCS 5/39(c), 39.2(a) (West 2006). Of relevance to this appeal, in the application, the company stated that the sands underlying the proposed expansion site are conservatively assumed to be connected to the sands of the Sankoty Aquifer, an aquifer which supplies drinking water to the region. The nearest residence is about 750 feet away from where the expansion will be located. The application, a $50,000 application fee, and 43 boxes of supporting documents were received by the county clerk's office on November 9, 2005. The Peoria County code requires the county clerk's office to confirm that an application of this nature satisfies the county's filing requirements before accepting the application for filing. After reviewing the materials, on November 14, 2005, the county clerk's office determined that the application was administratively

3

complete. Pursuant to the procedure set forth in the county code, the clerk's office gave the application a file-stamped date of November 14, 2005. From February 21 through February 27, 2006, a public hearing was held on the application. Two organized groups, Peoria Families Against Toxic Waste and the Heart of Illinois Chapter of the Sierra Club (collectively referred to as the opposition groups), participated in the public hearing and opposed the application. The hearing lasted for six days, with one full day dedicated to the receipt of public comment. The evidence presented at the hearing is summarized below. Only the evidence that is relevant to the statutory criteria in dispute in this appeal has been presented. As to criterion(i)

Download Peoria Disposal Company v. Illinois Pollution Control Board.pdf