Town & Country Utilities, Inc. v. Illinois Pollution Board

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 No. 3–03–0025 (unpublished order under Supreme Court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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