McLean County Disposal, Inc. v. County of McLean

566 N.E.2d 26, 207 Ill. App. 3d 477, 152 Ill. Dec. 498, 1991 Ill. App. LEXIS 60
CourtAppellate Court of Illinois
DecidedJanuary 17, 1991
Docket4-90-0111
StatusPublished
Cited by3 cases

This text of 566 N.E.2d 26 (McLean County Disposal, Inc. v. County of McLean) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLean County Disposal, Inc. v. County of McLean, 566 N.E.2d 26, 207 Ill. App. 3d 477, 152 Ill. Dec. 498, 1991 Ill. App. LEXIS 60 (Ill. Ct. App. 1991).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

McLean County Disposal, Inc. (MCD), appeals an order of the Illinois Pollution Control Board (PCB) affirming the McLean County board’s denial of siting approval for a proposed regional landfill. (McLean County Disposal, Inc. v. County of McLean (Nov. 15, 1989), _Ill. PCB Op. 89-108.) Initially, MCD argues the decision of the county board was contrary to the manifest weight of the evidence. MCD urges this court to find the PCB erred in reviewing the county board’s decision under the “accepted” manifest weight standard. MCD also argues its siting application should be deemed approved by operation of law.

We affirm.

Although the record in the instant case is lengthy, only the evidence necessary for an understanding of the instant decision will be summarized. Initially, a brief review of the statutory framework will be presented as a context for the issues alleged. Section 39.2(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. HDk, par. 1039.2(a)) sets forth criteria which must be met prior to the approval of a siting application for a regional landfill. Only those criteria applicable to nonhazardous waste apply here. Section 39.2(a) states:

“The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each regional pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:
(i) the facility is necessáry 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;
(ill) 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 or 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. 1989, ch. IIIV2, pars. 1039.2(a)(i) through (vi).)

The county is required to consider evidence on each of the statutory criteria. (Ill. Rev. Stat. 1989, ch. llV-k, par. 1039.2.) Petitioner has the burden of proof.

Each of the statutory criteria must be met before the local board may approve a siting application. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 530 N.E.2d 682; Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592.) The legislature has charged the county board, rather than the PCB, with resolving the technical issues such as public health ramifications of the landfill’s design. (Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743.) The broad delegation of authority to the local board reflects the legislative understanding that the local board hearing, which provides the only opportunity for public comment on the site, is the most critical stage of the process. E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664; Kane County, 139 Ill. App. 3d 588, 487 N.E.2d 743.

The PCB may review the factual findings of the local board and consider whether those findings are against the manifest weight of the evidence. It is not to reweigh the evidence or make new credibility determinations. (Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592.) In City of Rockford v. Pollution Control Board (1984), 125 Ill. App. 3d 384, 465 N.E.2d 996, the court discussed the function of the PCB in reviewing local officials’ siting decisions and held the PCB properly found a siting decision was contrary to the manifest weight of the evidence.

“We first address the standard of review applicable to the proceedings before the city council. *** This court has held that the manifest weight of the evidence standard applies to the review of site location decisions made by a governing body under section 39.2 of the Environmental Protection Act. Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039.2. ***
Our conclusion is supported by an analysis of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. lll1^, par. 1001 et seq.). Section 3(a) of the Act defines ‘Agency’ as the Environmental Protection Agency and defines ‘Board’ as the Pollution Control Board. (Ill. Rev. Stat. 1983, ch. Illxh, par. 1003(a), (c).) Section 39 deals with the issuance of permits. (Ill. Rev. Stat. 1983, ch. 111V2, par. 1039.) Section 39(a) allows the Board to require permits and requires the agency to issue permits upon proof that the applicant has complied with the Act. (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039(a).) Section 39(c) requires the applicant who proposes to develop or construct a new regional pollution control facility first to obtain proof that the local government entity has approved the site location in accordance with section 39.2 of the act. (Ill. Rev. Stat. 1983, ch. IIIV2, pars. 1039(c), 1039.2.) Section 39.2, at issue in this case, requires the local governing entity to approve site location suitability considering six listed criteria which together have the effect of making a uniform set of zoning standards for the location of regional pollution control facilities throughout the State. Houlihan & Flynn, The Siting of Sanitary Landfills and Other Waste Management Facilities — The Legislature Acts, 70 Ill. B.J. 434, 437 (1982).
Comparing section 39(a), granting the agency general authority to issue permits, with section 39.2, granting the local governmental entity authority to approve site location, it appears that the local governmental entity has been given the adjudicatory function otherwise located in the agency itself.

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Bluebook (online)
566 N.E.2d 26, 207 Ill. App. 3d 477, 152 Ill. Dec. 498, 1991 Ill. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-county-disposal-inc-v-county-of-mclean-illappct-1991.