Town & Country Utilities, Inc. v. Illinois Pollution Board ( 2007 )

Docket Nos. 101619, 101652 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
TOWN & COUNTRY UTILITIES, INC., et al., Appellees, v. THE
ILLINOIS POLLUTION CONTROL BOARD et al., Appellants.
Opinion filed March 22, 2007.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
This case arises out of an application to site a landfill filed by
Town & Country Utilities, Inc., and Kankakee Regional Landfill,
LLC (collectively, Town & Country). Under the Environmental
Protection Act (Act), siting applications are to be heard by a local
governing body, here the City of Kankakee (City). 415 ILCS 5/39.2
(West 2002). After a hearing, the City approved the application. The
County of Kankakee (County) petitioned for a hearing before the
Illinois Pollution Control Board (Board) to contest the City’s
decision. 415 ILCS 5/40.1 (West 2002). The Board reversed the
City’s finding that the application met the statutory criterion that the
site be “so designed, located and proposed to be operated that the
public health, safety and welfare will be protected.” 415 ILCS
5/39.2(a)(ii) (West 2002). Town & Country appealed. 415 ILCS 5/41
(West 2002); 735 ILCS 5/3–101 et seq. (West 2002). The appellate
court set aside the Board’s decision, over a dissent, finding that the
local authority was entitled to deference on this criterion rather than
the Board. No. 3–03–0025 (unpublished order under Supreme Court
Rule 23). We granted the Board’s and the County’s petition for leave
to appeal. 210 Ill. 2d R. 315. The central issue in this case is whether
we must apply the manifest weight of the evidence standard of review
to the City’s decision or to that of the Board. We believe the standard
of review should apply to the Board’s decision and reverse the
decision of the appellate court.
BACKGROUND
As the record in this case is lengthy, we summarize only the
evidence necessary for an understanding of the instant matter.
Initially, a review of the legal framework will be presented as a
context for the issues. The authority of the Board finds its roots in the
Illinois Constitution of 1970, which provides: “The public policy of
the State and the duty of each person is to provide and maintain a
healthful environment for the benefit of this and future generations.
The General Assembly shall provide by law for the implementation
and enforcement of this public policy.” Ill. Const. 1970, art. XI, §1.
In accordance with this directive, the General Assembly adopted the
Environmental Protection Act in 1970. 415 ILCS 5/1 et seq. (West
2002). The purpose of the Act is “to establish a unified, statewide
program” which, along with other remedies, is “to restore, protect and
enhance the quality of the environment, and to assure that adverse
effects upon the environment are fully considered and borne by those
who cause them.” 415 ILCS 5/2(b) (West 2002). Further, the
legislature intended the Act to be liberally construed so as to
effectuate its purposes. 415 ILCS 5/2(c) (West 2002).
The legislature established the Illinois Environmental Protection
Agency (IEPA) (415 ILCS 5/4 (West 2002)) and the independent
Pollution Control Board (415 ILCS 5/5 (West 2002)) to implement
the Act. The Board consists of seven technically qualified members.
415 ILCS 5/5(a) (West 2002). The Board has authority to conduct
proceedings, inter alia, “upon petition for review of the Agency’s
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final determinations on permit applications in accordance with Title
X [415 ILCS 5/39 et seq.]” and “other proceedings as may be
provided by this Act or any other statute or rule.” 415 ILCS 5/5(d)
(West 2002).
All waste permitting is governed by title X of the Act (415 ILCS
5/39 through 402 (West 2002)). Generally, an applicant for a new
pollution control facility must apply to the Agency to receive a
permit. 415 ILCS 5/39(a) (West 2002). In 1981, the legislature
amended the Act to require local government siting approval as a
precondition to the issuance of an Agency permit. Pub. Act 82–682,
eff. November 12, 1981; 415 ILCS 5/39(c) (West 2002). Prior to this
amendment, commonly known as Senate Bill 172, this court had
ruled that zoning ordinances of non-home-rule units of local
government related to facilities governed by the Act were preempted
by the Act. County of Cook v. John Sexton Contractors Co., 75 Ill. 2d
494 (1979); see also City of Elgin v. County of Cook, 169 Ill. 2d 53,
64 (1995). Senate Bill 172 overruled that decision and made clear that
all units of local government, home rule and non-home-rule alike,
have “concurrent jurisdiction” with the Agency in approving siting,
subject to the criteria in section 39.2. City of Elgin, 169 Ill. 2d at 64;
Pub. Act 82–682, eff. November 12, 1981; 415 ILCS 5/39.2(c) (West
2002).
The Act provides that a local siting application shall be granted
only if the proposed facility meets nine discrete criteria. 415 ILCS
5/39.2(a) (2004). That section requires the local siting authority to
hold a public hearing and issue a written decision. 415 ILCS
5/39.2(d), (e) (West 2002). Among these requirements the proposed
facility is “so designed, located and proposed to be operated that the
public health, safety and welfare will be protected.” 415 ILCS
5/39.2(a)(ii) (West 2002).
The local siting authority’s decision may be appealed to the Board
upon request. 415 ILCS 5/40.1 (West 2002). Section 40.1(a) governs
an applicant’s petition “for a hearing before the Board to contest the
decision” of the local siting authority. 415 ILCS 5/40.1(a) (West
2002). Section 40.1(b) governs a third parties’ petition for a hearing,
to which the rules in section 40.1(a) apply, as well as the Board’s
“procedural rules governing denial appeals.” 415 ILCS 5/40.1(b)
(West 2002). The Board’s hearing is “to be based exclusively on the
record” before the local body and “[t]he burden of proof shall be on
the petitioner.” 415 ILCS 5/40.1(b) (West 2002). In cases where the
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local governing body has granted approval, the county board or the
governing body of the municipality and the applicant shall be named
co-respondents. 415 ILCS 5/40.1(b) (West 2002). The Board may
take no new or additional evidence. 415 ILCS 5/40.1(a) (West 2002).
In making its determination, the Board shall include in its
consideration the written decision and reasons for the decision of the
local body and the transcribed hearing before that body. 415 ILCS
5/40.1(a) (West 2002). The hearing rules prescribed in sections 32
and 33(a) of the title X shall also apply. 415 ILCS 5/40.1(a) (West
2002), citing 415 ILCS 5/32, 33(a) (West 2002). The Pollution
Control Board must consider all of the criteria, although a negative
decision as to one of the criteria is sufficient to defeat an application
for site approval of the pollution control facility. City of Rockford v.
County of Winnebago, 186 Ill. App. 3d 303, 316 (1989). If there is no
final action by the Board within 120 days after the date on which it
received the petition, the site location may be deemed approved. 415
ILCS 5/40.1(a) (West 2002). Judicial review shall be afforded directly
in the appellate court and not in the circuit court. 415 ILCS 5/41(a)
(West 2002).
Here, on March 13, 2002, Town & Country filed an application
for a new regional pollution control facility on a site recently annexed
into the City of Kankakee. Town & Country’s application proposed
a new municipal solid waste landfill of approximately 400 acres with
a waste footprint of 236 acres. The proposed landfill would provide
service to surrounding counties. The City held a hearing on the Town
& Country application under section 39.2(a) (415 ILCS 5/39.2(a)
(West 2002)). Several objectors as well as numerous members of the
public were present. Among the objectors were the County, Waste
Management of Illinois, Inc., which operated a nearby landfill, and
residents of Otto Township, which encompassed the proposed site.
Although there are several issues raised by the hearing, we
concentrate on only the evidence pertaining to criterion (ii) (415 ILCS
5/39.2(a)(ii) (West 2002)).
The salient evidentiary issue presented by this appeal concerns the
potential groundwater impact of the proposed landfill. Accordingly,
much of the evidence in the record concerns the site’s geology and
hydrogeology. The parties disputed whether the geology underneath
the proposed site was an “aquifer” or an “aquitard.” An aquifer is a
geologic formation that permits the flow of water. An aquitard is a
geologic formation that retards the flow of water. The resolution of
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the aquifer/aquitard issue informed the City’s determination as to
whether the proposed facility was “so designed, located and proposed
to be operated that the public health, safety and welfare will be
protected.” 415 ILCS 5/39.2(a)(ii) (West 2002).
Devin Moose testified, as a professional engineer, on behalf of
Town & Country. Moose prepared the application and testified
regarding the design and proposed operation of the proposed landfill.
The application that Moose prepared stated that the area below the
proposed landfill was generally not a reliable source of groundwater.
Moose testified that the geology of the site consists of a relatively thin
layer of glacial tills which were on top of the bedrock, otherwise
called dolomite. Moose further characterized this bedrock as
containing a “weathered” portion which exhibited higher permeability
and could be considered an aquifer, and an “unweathered” portion
which exhibited low permeability and could be considered an
aquitard. His company, Envirogen, Inc., conducted 19 soil borings on
the site. One of the borings extended 50 feet into the bedrock. An
additional five of these borings penetrated the weathered bedrock,
which was approximately five feet thick. His company conducted
multiple tests which, according to Moose, demonstrated that the
unweathered dolomite exhibits low permeability. He testified that the
upper weathered layer of the dolomite bedrock was determined to be
the uppermost aquifer. Accordingly, it was Moose’s opinion that
beneath the weathered bedrock the lower layer dolomite was a
competent aquitard with low permeability.
Moose conducted computer modeling of the conditions at the site
using models recognized and accepted by the Illinois Environmental
Protection Agency. He testified that the computer models revealed no
groundwater impact, on a 30-year basis, which was the expected
operating life of the facility and projected similar results for a 1000-
year duration. Moose’s study was also based on a 1966 geologic study
which characterized the site as an aquitard.
Town & Country’s proposed design was as an inward gradient
landfill. The construction of this design would begin with the removal
of the glacial till and the weathered dolomite above the competent
layer of dolomite and build the landfill on top of that bedrock. Moose
testified that at the base of the landfill the glacial till and weathered
dolomite would be removed. The surface of the competent dolomite
would thereupon be exposed. Any fractures encountered would be
grouted to a depth of 10 feet. The landfill would then be built on top
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of that bedrock. Moose described a “composite” liner system
proposed for the landfill. It would consist of a minimum of three feet
of soil compacted to meet Illinois EPA requirements. Moose
explained the design additionally consisted of an engineering
structural fill, a 60-millimeter high-density polyethylene liner, and a
leachate- collection system to remove liquid from the base of the
landfill. Moose explained that an inward gradient between the
uppermost aquifer and the landfill would prevent contaminants from
leaking out of the landfill.
Hydrogeologist Stuart Cravens testified for the objectors. Cravens
had coauthored a 1990 Illinois State Water Survey report of the
aquifer in the Kankakee County area. The 1990 study covered 400
miles and ended 500 feet east of the proposed site that showed the
dolomite as a major aquifer. It noted that 97% of the wells in eastern
Kankakee and northern Iroquois Counties use the Silurian dolomite
aquifer, and there are over 300 wells within two miles of Town &
Country’s proposed facility. Cravens testified that the 1966 study
relied upon by Town & Country was no longer reliable because new
data had led to a reassessment of the hydrogeologic characterization
of the region. He also criticized Town & Country’s study because he
stated that one deep boring on the entire 236-acre site is not sufficient
to determine the characteristics of the bedrock. Cravens opined that
the entire depth of the Silurian dolomite below the site was an aquifer
and that no landfill design could adequately protect the public at this
location. Cravens admitted that he had not performed a site-specific
evaluation. Cravens acknowledged that he was not competent to
discuss the design of the proposed landfill.
Steven Van Hook, a senior hydrogeologist and project manager
at an engineering firm, testified on behalf of Kankakee County. It was
his testimony that Town & Country underestimated the extent of the
uppermost aquifer and that this aquifer was much thicker than the five
feet of weathered dolomite as identified from the existing borings. He
could not conclude that the unweathered dolomite was an aquitard.
He testified that one deep test boring is not sufficient to characterize
the dolomite under the entire proposed site. He admitted that he was
not qualified to testify on landfill design.
Professor Sandra Sixberry, a hydrogeologist who was not called
by either party, testified as a member of the community. Professor
Sixberry testified that in her opinion the Silurian dolomite was an
aquifer. She felt that relying upon one site-specific boring to
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determine the potential for dolomite to transfer water was an error.
She admitted that she was not qualified as an engineer to testify on
landfill design.
In response, Devin Moose testified of the intent of Town &
Country to submit additional borings during the construction
permitting process. He further testified regarding the ability of Town
& Country to assure that the design meets the needs of the specific
site based upon any additional borings which would generate alternate
findings.
After the hearing, the City made findings of fact and conclusions
of law. The City stated in its written decision, “There is evidence in
the record that the bedrock may constitute an aquifer as opposed to an
aquitard. However that evidence was contradicted or limited by the
supporting evidence which was used to draw that conclusion.” The
City further concluded, “even if the Silurian Dolomite acts as an
aquifer, there is sufficient evidence in the record to show that the
design is adequate to assure the lack of movement of contaminates.
This is not only based upon the liner system but also based upon the
inward gradient engineering design.” The City specifically requested
additional conditions be imposed in order to provide additional
assurance that the site was an aquitard and that the technical expertise
of the IEPA could be used to provide additional protection. The City
additionally found that the proposed facility was consistent with the
County’s solid waste management plan in accordance criterion (viii)
of section 39.2(a) (415 ILCS 5/39.2(a)(viii) (West 2002)).
The County petitioned the Board for a hearing to contest the
City’s decision pursuant to section 40.1 of the Act (415 ILCS 5/40.1
(West 2002)). The Board considered the record developed before the
City and heard additional evidence on the issue of fundamental
fairness of the City hearing. It agreed with the City’s finding that
criterion viii was met and also found that the City’s hearing was fair.
Additionally, the Board held the City’s conclusion that the “design of
the landfill will protect the public health, safety, and welfare is
against the manifest weight of the evidence because *** the landfill
is located on an aquifer and T&C’s design does not adequately
address that fact.” The Board concluded on criterion (ii):
“Town & Country failed to address research indicating that
the Silurian dolomite, upon which the proposed landfill would
rest, is an aquifer. Town & Country also failed to consider
well log data within a 2-mile radius of the site that indicated
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area wells draw water from the Silurian dolomite aquifer.
This evidence belies the findings of the tests on the single
boring taken from the 236-acre waste footprint. Town &
Country’s scientifically unjustified assumption regarding the
identity of the Silurian dolomite resulted in the use of
inaccurate information in its modeling and groundwater
impact evaluation. Consequently, Town & Country did not
present sufficient details to show the landfill was located,
designed, and proposed to be operated to protect public
health, safety, and welfare. The evidence Town & Country did
present was unreliable. Therefore, the Board finds it is clearly
evident that the City’s determination that Town & Country
met the requirements fo criterion (ii) of Section 39.2 of the
Act is against the manifest weight of the evidence.”
Town & Country timely appealed the Board’s decision. Waste
Management of Illinois and Kankakee County cross-appealed from
the Board’s finding that the proceedings were fundamentally fair and
that the City’s decision on siting criterion (viii) was not against the
manifest weight of the evidence.
The appellate court set aside the finding of the Board as to siting
criterion (ii) and confirmed the remainder of the findings of the
Board. The court first noted that the Board should apply the manifest
weight of the evidence standard of review to the decision of the local
siting authority as to criterion (ii). No. 3–03–0025 (unpublished order
under Supreme Court Rule 23), citing Waste Management of Illinois,
Inc. v. Pollution Control Board, 160 Ill. App. 3d 434, 440-41 (1987).
After explaining this standard, the court noted:
“In the instant matter, extensive expert testimony came before
the [City], both in favor of and in opposition to the proposed
site. Ultimately, a dispute developed over whether the site
was an aquifer or an aquitard, and the public health
consequences of the answer. On appeal, the parties expend
much effort to explain why one expert or the other was more
credible and ask this court to actually determine whether the
site was an aquifer or an aquitard. In the final analysis,
however, the decision belongs to the Council, and nothing in
the record would support a conclusion that the Council’s
finding was against the manifest weight of the evidence.” No.
3–03–0025 (unpublished order under Supreme Court Rule
23).
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Justice Barry dissented. No. 3-03-0025 (unpublished order under
Supreme Court Rule 23) (Barry, J., dissenting). He stated that the
section 41(a) of the Act provides that any party to a Board hearing
may obtain judicial review under the Administrative Review Law
(735 ILCS 5/3–101 et seq. (West 2002)). Section 41(b) of the Act
further provides that “any final order of the Board” shall be based on
the evidence and “shall be invalid if it is against the manifest weight
of the evidence.” No. 3–03–0025 (unpublished order under Supreme
Court Rule 23) (Barry, J., dissenting), citing 415 ILCS 5/41(b) (West
2002). Further, according to Justice Barry, our decision in
Environmental Protection Agency v. Pollution Control Board, 115 Ill.
2d 65 (1986), required the appellate court to determine if the Board’s
findings, rather than the City’s findings, were contrary to the manifest
weight of the evidence.
Both Kankakee County and the Board filed petitions for leave to
appeal with this court. 210 Ill. 2d R. 315. Leave to appeal was
granted, and the separate appeals were consolidated.
ANALYSIS
According to the County and the Board, the plain language of the
Act and the Administrative Review Law (735 ILCS 5/3–101 et seq.
(West 2002)) require this court to review the Board’s final
administrative decision, not the interim decision of the local siting
authority. Town & Country responds that the Act plainly requires
appellate review of the City’s decision, rather than the Board’s, as the
Board merely acts as an interim review and should not be accorded
deference. We agree with the Board.
We initially note the purported split in authority in the appellate
court on whether the appellate court should conduct its review of the
Board’s decision or that of the local siting authority. Compare Turlek
v. Pollution Control Board, 274 Ill. App. 3d 244, 249 (1995) (“On
review, we are to determine whether the Board’s decision is against
the manifest weight of the evidence”); File v. D&L Landfill, Inc., 219
Ill. App. 3d 897, 901 (1991) (“standard of review to be exercised by
both the Pollution Control Board and this court is whether,
respectively, the decisions of the county board and the Pollution
Control Board are contrary to the manifest weight of the evidence”),
with Concerned Adjoining Owners v. Pollution Control Board, 288
Ill. App. 3d 565, 576 (1997) (“the court is limited to a determination
of whether the siting authority’s decision was contrary to the manifest
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weight of the evidence”); Fairview Area Citizens Taskforce v.
Pollution Control Board, 198 Ill. App. 3d 541 (1990); Waste
Management of Illinois, Inc. v. Pollution Control Board, 160 Ill. App.
3d 434 (1987); City of Rockford v. Pollution Control Board, 125 Ill.
App. 3d 384, 386-87 (1984). We find these cases to be of little value
because each of them provided little to no analysis as to whether a
court should apply its review directly to the siting authority’s decision
or the Board’s decision. We begin instead with familiar rules of
statutory construction.
The fundamental principle of statutory construction is to ascertain
and give effect to the legislature’s intent. Alternate Fuels, Inc. v.
Director of the Illinois Environmental Protection Agency, 215 Ill. 2d
219, 237-38 (2004); Michigan Avenue National Bank v. County of
Cook, 191 Ill. 2d 493, 503-04 (2000). The language of the statute is
the most reliable indicator of the legislature’s objectives in enacting
a particular law. Alternate Fuels, Inc., 215 Ill. 2d at 238. We give
statutory language its plain and ordinary meaning, and, where the
language is clear and unambiguous, we must apply the statute without
resort to further aids of statutory construction. Alternate Fuels, Inc.,
215 Ill. 2d at 238. We must not depart from the plain language of the
Act by reading into it exceptions, limitations, or conditions that
conflict with the express legislative intent. Alternate Fuels, Inc., 215
Ill. 2d at 238. Moreover, words and phrases should not be construed
in isolation, but must be interpreted in light of other relevant
provisions of the statute. Alternate Fuels, Inc., 215 Ill. 2d at 238.
All waste permitting is governed by title X of the Act (415 ILCS
5/39 through 40.2 (West 2002)). Generally, an applicant for a new
pollution control facility must apply to the Agency to receive a
permit. 415 ILCS 5/39(a) (West 2002). Senate Bill 172 amended the
Act to require local government siting approval as a precondition to
the issuance of an Agency permit. 415 ILCS 5/39.2 (West 2002). In
other words, “no permit for the development or construction of a new
pollution control facility may be granted by the Agency unless the
applicant submits proof to the Agency that the location of the facility
has been approved by the *** municipality.” 415 ILCS 5/39(c) (West
2002).
Title XI of the Act pertains to judicial review. It provides, in
relevant part:
“(a) Any party to a Board hearing *** any person who has
been denied a variance or permit under this Act, any party
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adversely affected by a final order or determination of the
Board *** may obtain judicial review, by filing a petition for
review within 35 days from the date that a copy of the order
or other final action sought to be reviewed was served upon
the party affected by the order or other final Board action
complained of, under the provisions of the Administrative
Review Law *** except that review shall be afforded directly
in the Appellate Court for the District in which the cause of
action arose ***. ***
(b) Any final order of the Board under this Act shall be
based solely on the evidence in the record of the particular
proceeding involved, and any such final order for permit
appeals, enforcement actions and variance proceedings, shall
be invalid if it is against the manifest weight of the evidence.”
415 ILCS 5/41(a), (b) (West 2002).
We read this section to require judicial review of final decisions,
namely, the Board’s decision.
Section 41 begins with expressly stating that the “Board” decision
is the decision to be reviewed under the Administrative Review Law.
415 ILCS 5/41 (West 2002). The Act defines “Board” as the
“Pollution Control Board” (415 ILCS 5/3.130 (West 2002)) and
clearly and obviously excludes the local siting authority, whether a
county or a municipality. Further, the statute refers to “final” order of
the Board in several places. Only final orders of the Board are subject
to judicial review. Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d
541, 549 (1978). A final order is one that “determines the litigation
on the merits so that, if affirmed, the only things [sic] remaining is to
proceed with the execution of the judgment.” Archer Daniels
Midland v. Pollution Control Board, 149 Ill. App. 3d 301, 304 (1986),
citing Flores v. Dugan, 91 Ill. 2d 108, 113 (1982). Accordingly, the
statute provides: “Any final order of the Board under this Act ***
shall be invalid if it is against the manifest weight of the evidence.”
415 ILCS 5/41(b) (West 2002).
Section 41(b) of the Act also requires that the manifest weight of
the evidence standard applies to final Board orders in “permit
appeals, enforcement actions and variance proceedings.” 415 ILCS
5/41(b) (West 2002). Review of a Board order in a landfill siting
proceeding is review of a “permit appeal” within the meaning of
section 41(b). 415 ILCS 5/41(b) (West 2002). The provisions relating
to siting approval and review of siting decisions are contained in title
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X of the Act, entitled “Permits.” 415 ILCS 5/39 through 40.2 (West
2002). Obtaining siting approval is part of the landfill permitting
process. Section 39(c) states that “no permit for the development or
construction of a new pollution control facility may be granted by the
Agency unless the applicant submits proof *** that the location of the
facility has been approved *** in accordance with Section 39.2 of this
Act.” 415 ILCS 5/39(c) (West 2002). Further, section 39.2 establishes
procedures and criteria for local siting review. 415 ILCS 5/39.2 (West
2002). An appeal from a siting decision, therefore, is a “permit
appeal” because it is an appeal from an order issued under title X,
governing “permits,” and it is an appeal from an order that is part of
that permitting process. A developer who obtains approval from the
local siting authority must still obtain the permission of the Illinois
Environmental Protection Agency in order to construct and operate
the facility. 415 ILCS 5/39(c) (West 2002); see Land & Lakes Co. v.
Pollution Control Board, 319 Ill. App. 3d 41, 45 (2000).
Town & Country’s reliance on sections 40 and 40.1 of the Act is
misplaced. Section 40 sets forth the process for an “[a]ppeal of permit
denial” to the Board (415 ILCS 5/40 (West 2002)), while section 40.1
sets forth the process for an “[a]ppeal of siting approval” to the Board
(415 ILCS 5/40.1 (West 2002)). Town & Country argues that the
Board’s role under these two statutes is different, as the Board
performs de novo review in the Agency permit denial because of the
lack of an adversarial proceeding before the Illinois Environmental
Protection Agency. In contrast, in siting approval appeals, the Board
conducts its hearing upon a record prepared by the locality and
applies the manifest weight of the evidence standard to the locality’s
findings. Town & Country asserts that these provisions demonstrate
that the Board “merely acts as the first level of review for the final
local decision” as compared to the appellate court, which also applies
the manifest weight of the evidence standard. Therefore, Town &
Country contends that the appellate court should not accord the
deference of the manifest weight standard to the Board’s decision, but
rather the locality’s decision. We disagree.
Sections 40 and 40.1 specify the path by which a Board hearing
is obtained during different aspects of the permitting process. Both of
those types of appeals to the Board are part of the permitting process,
so they both are permit appeals under title X and within the meaning
of section 41(b). Furthermore, section 40.1(b) grants the Board an
important role in the permit process. Section 40.1 requires the
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Board’s technically qualified members to conduct a “hearing,” which
shall include the procedures outlined in sections 32 and 33 of the Act.
415 ILCS 5/40.1 (West 2002), citing 415 ILCS 5/32, 33(a) (West
2002). These sections require the Board to make factual and legal
determinations on evidence. While the Board may not receive new or
additional evidence, the statute still provides that the petitioner has
the “burden of proof.” 735 ILCS 5/40.1(a), (b) (West 2002).
More importantly, sections 40 and 40.1 of the Act do not refer to
the local proceedings as “final.” Indeed, sections 40 and 40.1
acknowledge that those proceedings are not final by authorizing
unsuccessful applicants to “petition for a hearing before the Board to
contest the decision” of the locality. 415 ILCS 5/40(a)(1), 40.1(a)
(West 2002). Because the legislature has deemed the decision of the
Board, rather than the decision of the locality, to be “final” in section
41, local decisions cannot be subject to direct judicial review within
the provisions of section 41 (415 ILCS 5/41 (West 2002)). The
appellate court may then review the Board’s decision concerning the
petition contesting the propriety of the underlying local decision,
based only on the evidence presented during the local proceedings.
We also disagree with Town & Country that our case in
Environmental Protection Agency v. Pollution Control Board, 115 Ill.
2d 65 (1986), requires a contrary result. In that case, this court
explained that judicial review under section 41 of the Act requires the
appellate court to determine whether the Board’s decision is against
the manifest weight of the evidence. While this court stated that there
was a distinction between permit and siting cases, this court never
considered whether the local siting authority or that of the Board is
the final decision. It is true that the Board’s consideration of an IEPA
permit decision differs from its consideration of a local siting
decision. But we based that distinction on the lack of an adversarial
hearing under the regular permitting process. Environmental
Protection Agency, 115 Ill. 2d at 70. Accordingly, we found that the
Board was not required to apply the manifest weight of the evidence
standard to review of an Agency’s decision to deny a permit. The
appellate court’s review of the Board’s decisions on either an appeal
from an Agency permit decision or a local siting decision is the same.
Our holding is supported by the Administrative Review Law.
Courts have jurisdiction to review administrative decisions only as
provided by law. Ill. Const. 1970, art. VI, §§6, 9: Collinsville
Community Unit School District No. 10 v. Regional Board of School
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Trustees, 218 Ill. 2d 175, 181 (2006). When the appellate court
undertakes direct review of an administrative decision, it exercises
special statutory jurisdiction. Collinsville, 218 Ill. 2d at 182. “Special
statutory jurisdiction ‘is limited to the language of the act conferring
it and the court has no powers from any other source.’ ” Collinsville,
218 Ill. 2d at 182, quoting Fredman Brothers Furniture Co. v.
Department of Revenue, 109 Ill. 2d 202, 210 (1985). The jurisdiction
of the court in this administrative review action, then, is limited by
the statutes conferring special statutory jurisdiction. The Act,
therefore, provides special statutory jurisdiction to this court only of
final Board decisions, rather than the local siting authority’s decision.
The Administrative Review Law is equally clear that only the
Board’s decision is subject to direct judicial review. That statute
defines a reviewable decision as one “which terminates the
proceedings before the administrative agency.” 735 ILCS 5/3–101
(West 2002). The administrative proceedings are terminated with the
Board’s decision, not the local siting authority, here the City.
Furthermore, the Administrative Review Law “shall apply to and
govern every action to review judicially a final decision of any
administrative agency.” 735 ILCS 5/3–102 (West 2002). To hold that
the City’s decision is to be reviewed would read terms into the
statute. As Town & Country readily urges, their view would make
the Board’s decision “irrelevant” and place authority as to technical
decisions in local hands. We agree that the legislature could have
explicitly provided direct review from the local board’s decision.
However, this provision may have conflicted with the Act’s purpose
“to establish a unified, state-wide program” to protect the citizens of
Illinois from environmental harm. 415 ILCS 5/2(b) (West 2002).
Accordingly, the legislature has viewed the Board as having
“concurrent jurisdiction” over these decisions. City of Elgin, 169 Ill.
2d at 64. To accord the Board no meaningful role in the process yet
still require its participation would lack sense. This proposition is
further belied by the Act, which states that there is a “burden of
proof” by the petitioner before the Board, and that the Board is to
conduct a “hearing” in accordance with sections 32 and 33(a) of title
X. 415 ILCS 5/40.1, 32, 33(a) (West 2002). The fact that the Board
undertakes consideration of the record prepared by the local siting
authority rather than preparing its own record does not render the
Board’s technical expertise irrelevant. Instead, the Board applies that
technical expertise in examining the record to determine whether the
record supported the local authority’s conclusions.
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In sum, we do not agree with Town & Country’s interpretation of
the Act. The fact that the legislature chose to bestow upon local
governmental units the jurisdiction to participate in very specific
ways in the state’s unified regime of environmental protection is not
persuasive evidence that the legislature in enacting the Illinois
Environmental Protection Act more than a decade earlier intended to
allow local siting authorities to have the final word on these issues.
Turning to the question of whether the Board’s decision was
against the manifest weight of the evidence, we first consider
criterion (ii) (415 ILCS 5/39.2(a)(ii) (West 2002) (that the proposed
facility is “so designed, located and proposed to be operated that the
public health, safety and welfare will be protected”)). The essential
issue, as expressed in the Board’s underlying reversal of the city
council decision, is its disagreement with Town & Country’s
characterization of the underlying bedrock. The Board asserts that its
decision was not against the manifest weight of the evidence, pointing
to the testimony of Cravens, Van Hook, and Sixberry. Town &
Country does not specifically argue that the Board’s decision was
against the manifest weight of the evidence, but, relying on their
erroneous standard previously argued, points to Moose’s testimony
which demonstrates that the City’s decision was supported by
overwhelming evidence. The Board concluded that Town &
Country’s application erroneously assumed that the proposed landfill
was situated on an aquitard. Town & Country’s application states that
the bedrock under the site is mainly dolomite about 250 to 275 feet
thick and that “the bedrock surface became competent and served as
an aquitard.” Town & Country argues as to the importance of the fact
that Cravens, Van Hook, and Sixberry were not engineers, and,
according to Town & Country, unqualified to testify concerning
landfill design. The County emphasizes that Town & Country’s
witness provided incompetent evidence that it was above an aquitard
rather than an aquifer.
Moose testified that Town &Country concluded the underlying
bedrock was an aquitard based on a single boring deeper than five
feet, and at least 22 more borings would be needed and required by
regulators. The Board concluded that this evidence was not sufficient
to demonstrate that the bedrock was an aquitard and deemed that the
landfill design was based on inaccurate scientific assumptions.
Furthermore, Cravens, Van Hook, and Sixberry provided evidence
that the site may be over an aquifer. We note that the City’s
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conclusion that the site was over an aquitard was not definitive.
Rather, it requested additional assurances that the site was over an
aquitard. We therefore reject Town & Country’s contention that the
evidence overwhelmingly demonstrated that the landfill was “so
designed, located and proposed to be operated that the public health,
safety and welfare will be protected.” 415 ILCS 5/39.2(a)(ii) (West
2002). Rather, the Board’s conclusion on criterion (ii) is not against
the manifest weight of the evidence. The witness testimony, the fact
that Town & Country’s application was based on only one deep
boring into competent bedrock on a 236-acre site, and that the 1966
study upon which the application was based has been superceded
provides significant evidence that the site application did not meet
criterion (ii). We therefore reverse the judgment of the appellate court
and confirm the Board’s decision on this point.
Because resolution of this issue is sufficient to decide this case,
we need not discuss the remaining arguments in the briefs. See City
of Rockford v. County of Winnebago, 186 Ill. App. 3d 303 (1989).
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
reversed and the order of the Board is confirmed.
Appellate court judgment reversed;
Board order confirmed.
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