ILLINOIS POLLUTION CONTROL BOARD
    December
    17,
    1987
    WASTE MANAGEMENT OF ILLINOIS
    INC.,
    a Delaware Corporation,
    )
    Petitioner,
    v.
    )
    PCB 87—75
    LAKE COUNTY BOARD,
    Respondent.
    DISSENTING OPINION
    (by J.
    Theodore Meyer):
    I dissent from the majority opinion adopted
    in this
    matter.
    I do not agree with the majority’s
    finding that the
    procedures used were fundamentally fair.
    I agree with the majority insofar
    as
    its determination that
    a county board or governing body of
    a municipality may adopt
    procedural
    rules
    to govern
    the hearing process under Section
    39.2
    of the Environmental Protection Act
    (Act).
    Ill. Rev.
    Stat.
    1985,
    ch.
    1111/2, par.
    1039.2.
    However,
    it
    is clear that any such rules
    must provide fundamental fairness
    to all parties.
    I believe that
    the provisions of the Lake County ordinance which forbid any
    amendment of the application while allowing various county
    departments and objectors
    to file written materials up
    to
    10 days
    prior
    to hearing deny the applicant fundamental fairness.
    These
    provisions put the applicant
    at
    a disadvantage because the only
    opportunity to
    respond
    to submissions
    by the objectors and county
    departments is through oral testimony at hearing.
    The applicant
    cannot introduce any written reports or studies.
    I recognize
    that the
    intent of these provisions
    is “to give members of the
    public and departments of the County an opportunity to prepare
    adequately and fairly for the public hearing”.
    Lake County,
    Illinois, Ordinance Establishing a Procedure for New Regional
    Pollution Control
    Facility Site Approval Requests
    (Sept.
    9,
    1986),
    Section 11(E).
    The provisions of the ordinance,
    however,
    do not give the same protections to the applicant.
    Thus,
    these
    provisions are fundamentally unfair.
    Unlike
    the majority,
    I do not feel
    that the “opportunity” to
    withdraw the application and
    then refile
    is sufficient to cure
    the unfairness
    to the applicant.
    Such
    a “solution”
    results in a
    circular situation:
    an applicant files
    an application, objectors
    and county departments submit written materials
    in response, and
    the applicant withdraws the application
    in order
    to add
    information
    in reply
    to the written submissions.
    Upon the
    84—645
    —2—
    refiling of
    the application, the cycle
    is started all over again,
    potentially continuing
    indefinitely.
    This hardly provides
    fundamental fairness
    to the applicant.
    I also note that the length of the record before this Board
    is merely one example of the ever—expanding records
    in landfill
    siting appeals.
    As
    the majority notes,
    the county board hearings
    in this case produced more than 7,300 pages of transcript,
    131
    exhibits, and 77 written comments, plus pleadings and motions.
    The hearings before this Board resulted
    in an additional
    474
    pages of transcript plus exhibits.
    (Majority opinion at 4.)
    There were five briefs filed
    in
    this appeal, with petitioner’s
    opening brief alone being 137 pages.
    I recognize that the
    Board’s procedural
    rules do not set
    a limit on the length of
    briefs, but
    I must point out that the rules of the Supreme Court
    of
    Illinois allow briefs of only 50 pages
    if printed, and 75
    pages
    if not printed.
    S.Ct. Rule 341.
    The Federal Rules of
    Appellate Procedure also state
    that briefs are not to exceed
    50
    pages.
    F.R.App.P.
    28(g).
    While
    I understand the parties’ desire
    to fully argue
    their positions, perhaps
    a bit of common sense
    would
    result
    in a somewhat shorter record
    and facilitate this
    Board’s review of the case.
    Because the procedures utilized under
    the county ordinance
    in
    this case were fundamentally unfair,
    I feel that the
    proceedings were void ab initio.
    Thus,
    I believe that the case
    should be remanded
    to the county for new hearings on the
    application.
    Board Member
    I,
    Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify tha~the above Dissenting Opinion was filed
    on the ~
    ~
    day of ______________________,
    1987.
    Illino
    Poll
    on Control Board
    84—646

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