ILLINOIS POLLUTION CONTROL BOARD
February 28,
1991
CLEAN QUALITY RESOURCES,
INC.,
)
)
Petitioner,
PCB 90—216
V.
)
(Landfill Siting)
MARION COUNTY BOARD,
)
)
Respondent.
MR. WILLIAM P. CRAIN APPEARED ON BEHALF OF THE PETITIONER.
MR. ROBERT SHUFF APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD BY
(M.
Nardulli):
This matter comes before the Board on an appeal filed
November 14,
1990 pursuant to Section 40.1 of the Environmental
Protection Act
(‘tAct”)
Ill.
Rev.
Stat.
ch.
111 1/2,
para.
1040.1(a),
1989.
The petitioner, Clean Quality Resources
(“CQR”), appeals the decision of the Marion County Board
(“MCB”)
to deny site location suitability approval to an aqueous
treatment plant.
The NCB held a total of fourteen hearings over
a four month period in 1990 on CQR’s application for site
approval.
On October 11,
1990, the NCB voted unanimously to deny
CQR’s request for site location suitability approval on the basis
that CQR did not satisfy criteria
(1) and
(3)
of Section 39.2(a)
of the Act.
The MCB did not make any findings on criteria
(2),
(4),
(5),
(6), and
(7).
For reasons discussed below,
the Board
hereby remands the case to the MCD for clarification of its vote.
The Board held a hearing on January 25,
1991.
CQR filed its
post hearing Brief on January 31,
1991.
The NCB filed
its Brief
on February 11,
1991.
CQR’s Reply Brief was filed on February
21,
1991.
Various interested parties that participated in the
hearings before the MCB,
including the City of Centralia, James
B. Wham, Daniel R. Price,
and Residents for Environmental Safety
(“RES”) by its attorney Harold K. Pike, have filed petitions for
leave to intervene or
in the alternative to file amicus curiae
briefs in this proceeding before the Board.
CQR moved to strike
these petitions.
The Hearing Officer denied the motion to
intervene but allowed the filing of amicus curiae briefs.
The
interested parties have filed amicus curiae briefs and a motion
to reconsider the Hearing Officer’s denial.
On February 25,
1991,
CQR moved to strike portions of the amicus curiae briefs
filed by the interested parties.
The Board hereby upholds the Hearing Officer’s decision
denying leave to intervene and granting leave to file amicus
119—59
2
curiae briefs.
This is consistent with past practice and
precedent of the Board.
Laidlaw Waste Systems,
Inc.
v. McHenry
County Board, PCB 88-27,
90 PCB 135
(June 16,
1988).
The Board
notes that the interested parties have raised issues of
jurisdiction and unconstitutionality of the statute.
The Board
will not address those issues at this time.
The Board denies CQR’s motion to strike portions of the
amicus curiae briefs.
The Board is able to determine and exclude
from its consideration material in these briefs which is outside
the scope of the Board’s review.
The Board accepts the amicus
curiae briefs of the interested parties to the extent those
briefs address issues properly before the Board,
i.e., those
discussions pertaining to criteria
(1)
and
(3)
of Section 39.2(a)
of the Act.
DISCUSSION
Pursuant to Sections 39(c)
and 39.2(a)
of the Act,
a new
regional pollution control facility is required to request and
receive siting approval from the local county board before
a
development or construction permit is issued by the Illinois
Environmental Protection Agency
(“Agency”).
Section 39.2(a)
provides that an applicant seeking site approval must demonstrate
compliance with each of the enumerated criteria of this section
before the county board can grant approval.
The decision of the
county board is reviewable by the Board pursuant to Section 40.1
of the Act.
The Board reviews a county board’s decision on each
of the contested criteria to determine if that decision is
against the manifest weight of the evidence.
In the case before
the Board now, the MCB made a determination on only two of the
applicable criteria.
(R. at C3575-C3577.)
The transcripts
reveal confusion as to whether or not the MCD needed to make a
determination on all the criteria.
(R.
at C3566—C3576.)
Therefore,
while not raised by the parties, the Board must
address whether it is necessary to remand this case back to the
MCB for clarification of its decision where a county board has
made a determination on only two criteria.
In E
& E Hauling,
Inc.
v. Pollution Control Board,
116
Ill.App.3d 586,
71 Ill.Dec.
587 451 N.E.2d 555
(2nd Dist.
1983),
the court confronted the issue of whether a county board must
give specific reasons for its determination for a given criteria.
In determining that the county board did not have to give
specific reasons,
the court stated that the county board needs to
“indicate which of the criteria,
in its view, have or have not
been met,
and this will be sufficient if the record supports
these conclusions so that an adequate review of the
.
.
decision may be made.”
(Emphasis added.)
In Waste Management v. Pollution Control Board,
175
Ill.App.3d 1023,
125 Ill.Dec.
524,
530 N.E.2d 682
(2nd Dist.
119—60
3
1988),
one issue presented to the court was whether the Board
erred by reviewing only one of four contested criteria.
On
review from the county board,
the Board determined that the
county board’s decision on the one criterion was not against the
manifest weight of the evidence and, because an applicant must
satisfy each and every criteria, upheld the county board’s
decision without addressing any of the remaining contested
criteria.
On appeal,
the court stated,
“Although
the Act does not specifically require the
PCB to review each of the challenged criteria in the
event it can affirm on any one of the criteria, we
believe the statutory duty to review the decision and
reasons for the decision of the county board pursuant
to section 40.1 requires the PCB to review and to
decide whether all the challenged findings of the
county board are against the manifest weight of the
evidence.
It is clearly more efficient for the PCB to
conduct a complete review of all challenged criteria,
thereby presenting a complete record in the event of an
appeal.”
“As a matter of judicial economy and efficiency,
and in
light of the PCB’s role as an administrative body possessing
expertise in this area, we believe the PCB has a statutory
obligation under section 40.1 to conduct a complete review
of all challenged statutory criteria under the Act in its
initial review of an appeal from the decision of a local
board.”
(125 Ill.Dec.
at 533—534.)
The court in Waste Nana~ementfound that the Board must
review
~JJ,
contested criteria because otherwise a partial review
leading to a remand order from the courts “would extend the
review process and promote multiple appeals.”
The Board finds
this same logic applicable to the county board level.
The Act
clearly indicates that the county board
is to make the decision
whether to approve or disapprove an application for siting
approval based on the criteria of Section 39.2(a).
At the county
board level, all the applicable criteria require a finding.
Remand is necessary to provide a complete decision for the Board
to review, to prevent extending the review process and to conform
with applicable case law.
The Board now,
for purposes of review, directs the
MCD
to
clarify its position on each of the remaining applicable criteria
of Section 39.2(a)
of the Act.
Anything less leaves an ambiguity
which the Board itself cannot clarify.
By remanding this case
for a complete determination on all the criteria, the Board
provides instruction to the MCB and avoids future confusion and
uncertainty on what is required for a final decision.
Nothing in
this opinion should be construed to imply that the Board requires
any additional hearings on this matter.
119—61
4
This action does not activate either Section 39.2(e)
or
40.1(d) which provide for automatic approval if no final decision
is made by the county board or the Board.
The Second District
Appellate Court has held that “the final action that a county
board must take
.
.
.
need only be sufficiently final to justify
an appeal to the PCB.”
McHenry County Landfill v. Illinois
Environmental Protection Agency,
154 I1l.App.3d 89,
106 Ill.Dec.
665,
506 N.E.2d 372
(2nd Dist,
1987)
.
In addition,
in City of
Rockford v.
County of Winnebago,
175 Ill.App.3d
1023,
134
Ill.Dec.
244 530 N.E.2d 682
(2nd Dist.
1989)
the court found that
a remand order from the Board is a proper and final order within
its 120-day decision period.
ORDER
The Board hereby remands this case back to the Marion County
Board for a final determination on the remaining applicable
criteria of Section 39.2(a).
IT IS SO ORDERED.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board
hereby certify t~t the above Order was adopted on the
__________
day of
________________,
1991, by
a vote of
Dorothy M(/Gunn,
Clerk
Illinois pollution Control Board
119—62