An Applicant's Guide to Municipal Waste Landfill Siting

Thomas R. Mulroy Jr.

Mr. Mulroy is a partner in the law firm of Jenner & Block of Chicago. Also contributing to this Article were: Gabrielle Sigel, associate, Jenner & Block; Andrew Haubert, engineer, STS Consultants, Ltd.; and Roger A. Keats, Gallatin National.

[19 ELR 10285]

Although the law governing the siting of municipal waste landfills varies from state to state, there are similarities in procedures and problems. This Article provides some suggestions on how a landfill applicant can efficiently proceed through the siting process and uses the recent successful siting application filed by Gallatin National Company before the village of Fairview, Illinois, as an example.

Siting Procedure

Most states require that before a new waste disposal facility can be built, it first must be approved by the local government for the community in which the facility will be located. Generally, the law governing the local siting process requires that the applicant for a landfill permit show that the landfill's design meets statutory criteria regarding the need for and the safety of the proposed landfill. For instance, in Illinois the applicant must prove the following facts by a preponderance of the evidence:

(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) the facility is located outside the boundary of the 100-year floodplain, or the site is flood-proofed;

(v) the plan of operation 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;

(vii) if the facility will be treating, storing, or disposing of hazardous waste, an emergency response plan exists for the facility that includes notification, containment, and evacuation procedures to be used in case of an accidental release; and

(viii) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.¹

After submitting a written application detailing the engineering plans for the landfill and stating how the statutory criteria will be met, the applicant usually must prove statutory compliance by introducing evidence during a public hearing. Educating the community about the landfill and conducting an efficient hearing will speed up the landfill application process.

Quality of Design

For a landfill applicant to be successful, his proposed landfill design must be "state of the art." Any attempt to cut corners in the design will extend and compliance the siting process and will lessen the applicant's chance of success because the landfill's opponents will exploit the design's weaknesses. The opponents tend to hire the same expert witnesses to review the design and to testify against it at the public hearing. These witnesses usually raise the same kind of objections to the proposed designs. In order to reduce the number of objections and thus to speed up the application process, the applicant should select an experienced, highly qualified engineering firm to design the landfill and to assist the applicant in the preparation of the siting application. The engineers should have expertise in site evaluation, environmental assessment, groundwater evaluation, and solid waste management. When the engineers begin work, they should familiarize themselves with the points raised by landfill opponents in prior hearings. When the siting application and landfill design are drafted, they should address as many of these points as possible.

Gallatin National's Experience

Recently, the village of Fairview, Illinois, approved the application of Gallatin National, a waste management company located in Northbrook, Illinois, for a large municipal waste landfill to be sited within the town's limits. Gallatin hired STS Consultants, Ltd., a Northbrook, Illinois, engineering firm to design a state-of-the-art landfill that would exceed existing federal and state standards. The landfill design met all of the Illinois statutory criteria, was safe, and gave the opponents of the landfill little ammunition with which to challenge the design effectively.

STS's landfill design had, at its heart, the maintenance of an inward gradient control system. The design featured [19 ELR 10286] a 10-foot thick compacted clay liner, a soil-bentonite slurry wall, leachate collection systems, and gradient control piping systems. The collection and gradient control systems were designed to ensure a water flow into the landfill through the use of sumps that are intended to keep the water pressure inside the clay liner lower than the water pressure outside. A vertical soil-bentonite wall was proposed to surround the landfill in order to control the groundwater flow toward the fill area. The wall was designed to reduce the amount of groundwater moving toward the landfill, to maintain a groundwater mound outside the system, and to maintain an inward gradient below the landfill.

The design provided that water collected from the gradient control drains below the liner will be pumped into holding/recharge ponds located away from the facility. The water collected in the leachate collection system would be pumped to leachate treatment facilities situated on the site.

The design also included mechanisms built into the facility to allow rapid and effective collection of the methane gas produced within the landfill. The gas could be collected and used as an energy source, or cleaned for use in heating residences within the village of Fairview.

The design provided for the recycling of refuse through all phases of the landfill operation. In addition, a composting pad will be developed on the site to compost and recycle yard wastes.

The Independent Consultant

Gallatin National urged the Fairview Village Board — the local siting authority — to hire an engineer to act as an independent engineering consultant who would review STS's work and evaluate its design concepts and report to the Village Board. Because engineers often engage in this kind of "peer review," they are accustomed to working together in this manner. The consulting engineer was hired and became involved in the project soon after Gallatin filed its siting application. The engineer reviewed STS's field work and designs and then made regular, oral reports to the Village Board. The consultant also prepared a written report that explained and clarified issues raised during the siting process and submitted that report to the Village Board. The consulting engineer's involvement and subsequent report assisted the members of the Village Board in understanding some of the technical issues involved in the siting process.

The Hearing Must Be Efficiently Done

After the engineering work is completed, the applicant must prove compliance with the local statutory requirements relating to environmental protection. This proof must be offered at a public hearing before the local siting authority and should be presented in the most efficient and effective way possible. The proof adduced at the hearing must supplement the application and cannot constitute a change or an amendment to the application. One efficient way to present this evidence is for the applicant to make extensive use of hearsay.

The Use of Hearsay Evidence

In general, administrative hearings in many states are intended to be more efficient and less costly than trials because hearsay evidence is permitted if it is the kind of evidence prudent people would ordinarily rely on in the conduct of their affairs.

In many jurisdictions, the rules of administrative procedure permit hearing officers to allow evidence that a reasonable person would consider reliable, and many states interpret this provision to mean that reliable hearsay evidence is admissible.² Commentators have applauded this trend toward allowing hearsay in administrative proceedings because:

[T]he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to the most reliable. Therefore, the guide should be a judgment about the reliability of particular evidence in a particular record in particular circumstances, not the technical hearsay rule with all its complex exceptions.³

The liberal admission of hearsay evidence in administrative hearings allows the landfill applicant to avoid calling multiple experts to testify to the opinions they previously expressed in the siting application. The use of hearsay permits an expert, who authored a particular part of the siting application, merely to reaffirm his report on the witness stand and be available for cross-examination. This procedure avoids hours of detailed, technical direct examination and dramatically shortens the length of the hearing while ensuring that the hearing is fundamentally fair.

The strategy of using hearsay in the form of experts' written opinions in place of the experts' direct examination allowed Gallatin National to present the evidence in support of its application in three evening and four day sessions. Gallatin had its experts testify on only two limited topics: 1) their qualifications as experts and 2) their opinions as to whether the Gallatin landfill design complied with Illinois law. Gallatin then offered the experts' written reports (which were part of the siting application) in evidence. These reports contained the detail that supported the experts' opinions and, therefore, the experts did not need to repeat all that was contained in their reports. For instance, Gallatin's expert on the subject of the landfill's impact on the surrounding real estate first stated his real estate appraisal credentials and then testified as follows:

Q: Mr. McCann, have you ever conducted any studies of landfills and their impact on real estate values?

A: Yes, I have on numerous occasions.

Q: Are you familiar with the statutory criteria that apply to the siting of landfills?

A: Yes.

Q: Do you know that the law states that the facility must be 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?

A: Yes.

Q: Were you asked by Gallatin National to conduct a study to see if their plans for their facility met that criterion?

A: Yes.

Q: I am going to show you what has been marked as Applicant's Exhibit Number 6. Is this the report that you prepared as a result of your study?

[19 ELR 10287]

A: Yes.

Q: Did you reach an opinion as a result of your study?

A: Yes.

Q: What is your opinion?

A: Yes, in my opinion, that facility has been located in a manner that will minimize incompatibility with the character of the surrounding area, and it has been located in an area that will minimize the impact on the value of other property in the vicinity.

Q: Is your opinion and the bases for it contained in the report marked as Exhibit 6?

A: Yes.

Q: No further questions.

Each of Gallatin's six experts gave his opinion in the same short way. Because the experts' opinions were based upon material reasonably relied on by prudent people in the conduct of their affairs, the hearing officer could properly receive the experts' written reports in evidence. Because the authors of the reports were available for cross-examination, it was fundamentally fair for the Village Board to rely on the reports when reaching its decision.

The landfill applicant gains decided tactical advantages by presenting a concise case-in-chief. For instance, it forces the objectors to elicit facts usually presented by the applicant. To elicit these facts, the opponents must draw out lengthy and often confusing testimony from the experts. As the objectors' cross-examination becomes long, boring, or confusing, the decisionmaker blames the objectors, not the applicant, for unnecessarily extending the proceedings. The applicant, on the other hand, quickly presents the reports of his qualified experts and thus establishes his case.

Education of the Community

Another way to expedite the siting process is for the applicant to educate the community about the proposed landfill. The applicant must show that the landfill will meet the criteria set forth by local law, and must emphasize that the landfill will be safe and beneficial to the community. One way to educate the local population is through a citizens' advisory group. This advisory group can be comprised of 15 or 20 community leaders, politicians, school teachers, and others. People in favor of and those opposed to the landfill should be invited to join the advisory group. The group should be addressed by engineers and other experts who have reviewed the applicant's plans. The group should be able to examine the landfill design, be given a detailed description of how the landfill's safety precautions would work, and be encouraged to ask questions and to visit the site. The members of the group could then pass on the information they have received to their friends and neighbors. Because of the technical, detailed engineering work involved in a landfill design, many citizens do not expend the intellectual effort required to understand the design and its principles. However, members of a small advisory group of community activists might work hard to understand the issues involved and would have useful suggestions for the applicant. The applicant who has a good design would be well advised to explain it through an advisory group. The idea of a landfill built in one's community can be frightening. However, if the safety measures to be taken and if the technical design are clearly explained, much of the community's anxiety can be eliminated. These explanations can be made more easily and clearly in an advisory group than they can in the local press.

Contributing to the Community

In addition, the applicant should make its presence known in the local community. A way to do this for the applicant to use part of the landfill revenue to finance public improvements, to repair roads or to build parks in the vicinity of the landfill. Returning some of the landfill's revenue to the community is an idea that should be encouraged. However, building local improvements should not be done merely as an "inducement" for the population to vote in favor of the landfill. On the other hand, merely because some opponents of the landfill may argue that the local siting authority is being swayed by "financial considerations," this should not dissuade the applicant from contributing to the community.

Many jobs are created in connection with the development, construction, and operation of a landfill. The applicant should encourage community residents to apply for those jobs, so that the local economy benefits from the project. Having local citizens work on the landfill also affords the applicant the opportunity to further educate the people in the community about how the landfill is being built and operated.

Retention of the Consulting Engineer

In addition, the applicant may consider recommending to the town that it continue to employ the consulting engineer to look over the applicant's work in developing and operating the landfill. Both the consulting engineer and the applicant's engineer can then regularly report to the local siting authority concerning the operation and construction of the landfill.

Conclusion

The siting process will be more efficient and thus less costly if the applicant provides substantive information to the local community about the operation and construction of its landfill. The community has a right to know all the details about the landfill and an applicant who has an excellent design should not be afraid to share these details with the people. A state-of-the-art design can be shown to be extraordinarily safe and to have many built-in safeguards to protect groundwater.

In addition, the applicant has a responsibility to become active in the community. Providing jobs, helping to develop parks, and assisting the local schools are methods that the applicant may use to fulfill this responsibility. The landfill will be a neighbor of the community for years to come and its developer should establish a presence in the community and should act like a good neighbor. Nevertheless, the applicant may be faced with the complaint from the landfill's opponents that the applicant is merely trying to buy friends. The only response to this complaint is for the applicant to operate in good faith and to share information with the community.

[19 ELR 10288]

Of course, the most important factor in a successful siting hearing is having a safely designed and competently planned landfill. An applicant will increase its ability to convince a local siting authority of its landfill's safety and necessity by presenting a concise and controlled case in support of its design. Full use of the rules of evidence in administrative hearings will allow an applicant to accomplish that result.

1. ILL. REV. STAT. ch. 111 1/2, § 1039.2.

2. See generally Annot., 36 ALR 3d 12, 36-40 (1971).

3. MCCORMICK ON EVIDENCE § 352 at 1011 (3d ed. 1984) (quoting Davis, Hearsay in Administrative Hearings, 2 GEO. WASH. L. REV. 689 (1964)).