Legal Lode: Site Fight

Sometimes it’s not enough to bend over backwards accommodating opponents of a waste facility expansion. They’ll just end up suing you if they don’t get their way – that is, if their protests don’t bring the project to a halt. Still, for operators and host communities, there’s no choice but to grin and bear it.

Waste Management of Illinois (WM) owns a 245-acre landfill in unincorporated DeKalb County, about 65 miles west of Chicago. The site consists of an old area operated from 1958 to 1974, a north section under state permit since 1974 with a clay liner but not a synthetic liner, and an active portion opened in 1989 where waste is still received.

WM filed an application with Illinois EPA for a permit to expand the landfill. The proposed expansion would exhume the old area and dispose of the waste in a composite-lined cell, create disposal capacity above and adjoining the existing waste footprint, and open 179 additional acres for disposal operations. The expansion would yield 23.2 million tons of capacity for 46 years to serve a 17-county area.

Under state law, IEPA cannot grant the permit until WM gets siting approval from the local governmental unit, which is the DeKalb County Board. WM filed its 7,000-page siting application, and all related documents were available for public inspection. Following public hearings, WM received County approval, predicated on a previously signed agreement between WM and the County whereby WM pays $120 million in host fees over 30 years.

Opposing the project, a group of citizens known as Stop the Mega-Dump (STMD) filed an objection with the state Pollution Control Board (PCB) arguing that the County’s siting decision process was fundamentally unfair. STMD claimed that the County “rubber-stamped” WM’s application because the County was desperate for funds to pay for a $30 million jail expansion.

The PCB concluded that the proceedings were not unfair, and affirmed the County’s approval of the siting application. STMD sought direct review of the PCB decision in a state appeals court.

On appeal, STMD argued that the County’s procedures barred the public from participating in the hearing and that County board members engaged in improper ex parte communications when WM took them on a tour of a WM landfill located about 60 miles away near Joliet. An ex parte communication occurs when a party to a case, or someone involved with a party, talks or otherwise communicates directly with a judge or other decision-maker about the issues in a case without the other parties’ knowledge. STMD also claimed that the County had prejudged the application and approved it with-out a fair and impartial review.

Affirming the PCB decision, a three-judge appellate panel made a number of key findings on the approval process: the County adopted its challenged procedures years before WM applied for siting approval; the County had retained a qualified independent engineering consulting firm to review the application, and the firm had made certain recommendations on the facility’s design, location, and proposed operation; the County retained, as its hearing examiner, an attorney with experience in conducting siting hearings, who relaxed the rules on participation, questioning and comments; STMD members spoke at the hearing, presented their own expert witness, and cross-examined all of WM’s witnesses; STMD presented no evidence that anyone failed to participate at the hearings because they weren’t given notice.

The appellate court also upheld the PCB findings on the propriety of the Joliet facility tour. Over several months after the host agreement was signed, WM hosted several facility tours involving 15 of the 24 board members. WM provided transporta- tion and a simple lunch. The tours occurred before WM filed the siting application. Under Illinois law, there can be no improper ex parte communications until a siting application has been filed. “[T]he challenged prefiling contacts do not show prejudgment of the application,” the court said.

[Stop the Mega-Dump v. County Board of DeKalb County, Ill., et al., No. 2-11- 0579, Ill.App. Dist. 2, Oct. 29, 2012.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].