ILLINOiS POLLUTION CONTROL BOARD
December
6,
1989
METROPOLITAN WASTE SYSTEMS,
INC.,
SPICER,
INC.
and
SPICER PROPERTIES,
INC.,
Petitioners,
v.
)
PCB 89—121
CITY OF
MARSEILLES,
Respondent.
SUPPLEMENTAL OPINION
(by J.
Anderson and
J. Marlin)
On December
6,
:989,
the Board adopted,
by separate vote,
an
Opinion and Order affirming
the July
76,
1989 decision cf the
City
of Marseilles
(“City”) denyinq siting location suitability
approval
for
a new regional poilution control facility
*~
Metropolitan Waste Systems
:nc.
(“ApDlicants”).
Preceding this
vote,
the Board also had voted separately
on
the language
addressing each criterion
in the draft Opinion.
For different
reasons,
the necessary four votes
on Criterion No.
1 were not
forthcoming.
The portion of
the Board’s Opinion relating
to
Criterion No.
states:
Six
members
of
the
Boa:d
were
present
at
the
December
6,
1989
meeting
at
which decision
in
this
matter
was
statutorily
required
to
be
made.
Section
5
of
the Act provides
that
“4
votes
shall
be
required
for
any
final
determination
by
the
Board.”
The
draft
Opinion
discussed
at
the
meeting
failed
to
pass,
the
Board
being
“deadlocked”
at
a
3-3
vote.
As
a
statutory
majority
of
4
votes
could not be mustered
for any written Opinion,
there
is
no
Opinion
of
the
Board
as
to
the
Criterion No.
1
issue
in this case.
We wish
to supplement
the record with our views
on Criterion No.
1.
First,
we aaree with Board Member Nardulli’s supplemental
Opinion insofar as
it
states that
the la::guage
in the draft
Opinion regarding Criter:on No.
1
snoulo. have been included as
appropriate and as
not reversing any precedent
in
the Board’s
opinion
in Fairview Area Citizens Task Force
v.
Village
of
Fairview, PCB 89—33.
11”~41
—2—
Second,
we would have
reversed the City of Marseilles’
holding that the applicant had failed
to meet Criterion No.
1.
Regarding the draft
language issue,
we would add the
following observations
to those of
Board Member Nardulli.
There
is nothing
in Section
39.2
of the Environmental
Protection Act that allows
a city or
county
to unilaterally amend
an application,
which
is,
in effect,
what the City would have
done
in recasting
the intended service area
in order
to support
a
denial.
The applicant
is the only person, pursuant
to th~second
paragraph
of Section 39.2(e), who can change the scope
of an
application,
and even then can do so only once.
The first
paragraph
of Section 39.2(e) only allows the decisionmaker
to
impose conditions as part of the
p~yal of the application.
It
is one thing
to weigh
the record,
including
the
application;
it
is another
thing
to,
in effect,
expunge those
parts of
the record that
a decisionmaker doesn’t want
to consider
at
all.
Here,
it
is argued
that,
if
two distant
counties
in the
intended service area were removed,
then the City
could easily
deny
on Criterion No.
1,
What
is
to stop
a decisionmaker from
picking and choosing those elements of
an application
it wants
to
ignore
in any of the other criteria
if,
by their
inclusion,
thE
decisionmaker would
be hard put
to deny.
We appreciate
that
a city or county
in their traditional
role as legislative policymakers would naturally focus
on the
needs of
their nearby citizens;
however,
in an
SB 172 setting,
the decisionmakers are placed
in a non—traditional,
quasi—
judicial role as regional decisionmakers,
a role that restricts
their ability to view the criteria from
a local policymaking
perspective.
Regarding Criterion No.
1,
we
do not believe that the City
can refuse to consider the intended service area as proposed any
more than
it can refuse
to consider
the location of the facility
as proposed because
it would have preferred that
it
be located
elsewhere.
We note that, were this
a proposed hazardous waste
facility,
its intended service area would likely be
far reaching,
extending
into other states.
In any event,
we believe
that,
absent
a legislative amendment,
it
is
the applicant
that defines
the intended service area.
We certainly did not,
in voting for the Fairview Opinion,
construe the
anguage,
in the context
of that Opinion, as setting
the precedent advocated
by Board Members Dumelle,
Forcade and
Flemal
in their Supplemental Opinion,
nor do we recall any
discussion at
that
time as to the precedential intent
now
~uV0C~
~
Regarding the City’s negative finding on Criterion No.
,
and assuming that
the City cannot refuse
to consider distant
portions
of the service area,
we find no support
in the record,
106—42
—3—
on a manifest weight basis,
to affirm the City’s determination.
The remaining life of the facilities
in question,
as testified
to
by the applicant, was essentially uncontroverted.
Given the
realistic lead time that now exists for getting site
hydrogeological analysis, design,
etc.
completed, getting through
the SB 172 process-appeals and all—and completing the permitting
process, and the time
it takes
to develop the facility, we
believe that the limited life expectancy of the existing
facilities
in the intended service area amply demonstrated
that
the facility was necessary,
and cannot find any support
in the
record
for
the County reasonably concluding otherwise.
In this
day and age,
twice as
long, as the
4 1/2 years projected
is
arguably insufficient lead time to get the first cubic yard of
solid waste disposed of.
Even the Objectors implicitly
recognized
that
a negative finding on Criterion No.
1 rested on a
redrawing
of the service area.
~/
~
_____________
Ao’an
G. Anderson
,4óhn
C. Marlin
Board Member
~hairman
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
BOe~
,
r
~et~
ily
that
e ~
Sp~e~~t~
~
~:
entered on the
/7~
day of
~
,
1990.
Dorothy M//Gunn, Clerk
Illinois7ollution Control Board
ir)(,.-43