ILLINOIS POLLUTION CONTROL BOARD

January

21,

1988

MCLEAN COUNTY DISPOSAL

COMPANY, INC.,

Petitioner,

v.

)

PCB 87—133

COUNTY OF MCLEAN,

Respondent.

CONCURRING OPINION

(by J.

Marlin):

I agree that

in this matter the legally correct decision

is

to conclude that site approval

is granted by operation of

law.

However,

I believe that additional comments are warranted.

This proceeding highlights

to an extent greater

than most

the frustrating situations which the current

landfill siting law

is visiting upon all those

involved with the process.

From the

beginning,

this law has been subject

to numerous conflicting

interpretations.

The Courts have regularly held that the law is

to be interpreted quite strictly,

and the Legislature has amended

it precisely and narrowly

in response

to perceived problems.

The

result has been a multi—year co—evolutionary struggle between

various factions.

Each faction strives

to find a new technical

maneuver or interpretation to get around

the innovation

established by the other

faction

in

a prior proceeding.

The

process has degenerated

to the point where procedural

technicalities and artful

interpretations are used by both

landfill opponents and proponents with the result that this Board

finds

it increasingly difficult to reach

the merits.

The Board consequ2ntly finds itself unable

to consider the

merits

of an increasingly large proportion of

the landfills which

reach

it on appeal.

The simple fact

is that procedural and

fundamental fairness issues need

to

be addressed before the

merits.

This often results

in remands or dismissals.

A

dismissal or

remand coming after the applicant and County have

invested

thousands of dollars and hundreds of hours

in the

process

is guaranteed to

increase the frustration level

of the

participants.

In this case,

the alternative to the majority

finding was

a remand

——

which would still not reach the merits.

Much

of the problem stems from the holding that the

landfill

siting process at the local

level

is

a quasi—judicial function.

Local officials are legislators with

little judicial experience

and frequently

run afoul

of judicial fairness considerations,

especially those prohibiting what

they view as normal contact

85—221

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with their constituents.

The Board

is prohibited from

considering the evidence

de novo and thus

is unable

to overlook

or

bypass procedural issues

and go directly to the merits.

If the Board had accepted the minority position

in this

matter regarding the County Board’s right

to have rules which

in

effect “re—start the clock after an application

is filed”

a

number

of complications would occur.

The filing triggers

a

number of steps

in the landfill law.

Using McLean County’s

process, would open

a variety of new avenues

for technical

appeals of decisions.

For example,

in this case the applicant

did not issue

notice of

the “new filing date”

and submitted only

a few pages of additional information instead of an entirely new

and complete application.

Both of

these points could have been

contested in an appeal brought by an opponent who did not like

a

county decision favoring the landfill.

There

are numerous other

complications inherent

in this process which could lead

to

further appeals.

Another potential problem involves how

a

determination

of incompleteness will mesh with the recently

passed State law providing that

a landfill at

a rejected site may

not have

a second application submitted for at least two years.

The County does not need full—blown merit hearings to reach

jurisdictional and completeness issues.

The County could easily

and properly handle an inadequate

information situation by

holding

a hearing on completeness, jurisdiction,

and fairness and

then deciding by

a vote

of

the entire County Board whether

or not

to reject

the application.

There

is no need

to go through an

entire merit hearing process to conclude that

an application will

be rejected.

However,

the current law does require

a hearing and

a vote by the full County Board.

I do not necessarily agree with everything said on page

eight of the majority opinion regarding the extent to which

a

county can establish rules •governing

the siting process.

The

counties obviously need the ability to control

a hearing so that

the process

is

fair,

understandable,

and orderly.

However,

it

is

equally obvious that the State will

be

ill served by 102

different complex county ordinances specifying

in detail what

each County Board considers to be an adequate application and

procedure.

Unfortunately, the landfill siting law gives limited

guidance

in this area and authorizes no entity to establish firm

rules

up front.

The rules unfortunately are being established

over time on appeal.

Given this situation,

and the strict

interpretations

of reviewing courts, counties would

be well

advised

to keep their

rules as close as possible to the language

of the Act.

I do not agree with the majority statement on page nine

regarding

the findings of the County’s technical adviser.

At

best,

the documents provided

to the Board,

including

the

stipulation are unclear

as

to whether

she believes

a leachate

collection system is necessary (Staff Report)

or should be

85—222

---

-J

included only if new Board

regulations require

it

(Stipulation).

Fortunately the Illinois Environmental Protection

Agency will be able

to consider this matter

in detail during the

permitting process.

I believe that the Board should have made

a firm holding

that tape recordings and transcripts

of tape recordings are not

to be considered

an acceptable record for County Board members

or

this Board

to review.

In the City of Columbia,

the Board

allowed

an appeal

to proceed where the County Board had reviewed

a

written transcript of

a

tape recording

of the hearing.

The Board

did caution, however,

that this process had several undesirable

features.

In the instant proceeding,

the County Board had only a

pile

of tapes

and was not ever provided with

a written

transcript.

It

is difficult to conclude that anyone could

adequately review sixteen days of hearings by listening to the

tapes even

if

they had the required amount of time.

Among other

things, with

a tape it

is extemely difficult

if not impossible

for someone to scan

a record for important points

or break into

a

discussion

of

a particular point and then page back to see who

is

speaking without

listening to an entire sequence.

One cannot be

sure who

the speaker

is

at any given

point

——

speakers on

a tape

are probably not identified individually every time they open

their mouths as

they are

in a transcript.

Additionally

it

would

be quite difficult

to check

a point after hearing

it

once.

winding tapes and resetting counters

is much more complicated

than going back

to

a given page.

It would be extremely difficult

to make any sense out of

a pile of tapes covering sixteen

hearings unless there was an incredibly detailed

index.

In

addition,

it would be difficult for members

to share

a

tape

recorder and tapes as they can

a multi—volume transcript.

The

official typed transcript provided

to this Board

(but not the

County Board)

is about

a foot thick. Tapes simply cannot

substitute

for

a paper transcript when one is trying to reach

a

reasoned decision based on the complex testimony of competing

witnesses.

Also,

it

is important to note that

in Ash v. Iroquois County

Board,

PCB 87—29,

(July 16,

1987),

the Board quoted the following

passage which

is taken from Homefinders,

Inc.

v. City of

Evanston,

65

Eli.

2d 115,

(1976):

The

requirements

of

due

process

are

met

if

the

decision—making

board

considers

the

evidence

contained

in

the

report

of

proceedings

before

the

hearing

officer

and

bases

its determinations thereon...We are

in

accord

with

the

majority

view

and

conclude

that

the

requirements

of

procedural

due

process would

be met

under

the Evanston Fair

Housing

Ordinance

if

those

members

who

were

not personnally present

at the hearings based

their

determination

of

penalties

on

the

85—223

---

evidence contained

in the transcript

of

such

proceeding.

65

Ill.

2d

115

at

128—129.

(emphasis added).

Ash,

slip.

op.

at

10

In other words, when decision—makers do not attend hearings, due

process requires that they consider the written transcript of

those hearings before rendering

a decision.

Therefore,

it could

be argued

that the decision by the McLean County Board was

fundamentally unfair,

since

the County Board members who did not

attend the hearings could only contemplate

a pile of

tapes

——

not

transcripts.

For these reasons,

I concur.

I, DorothyM.

Gunn, Clerk

of

the Illinois Pollution Control

Board,

hereby certify~~~at

the abov~e~

Concurring Opinion was

submitted on the

~

day of

______________,

1988.

Dorothy M.

Q’unn, Clerk

Illinois Pollution Control Board

onn

U.

Marlin

85—224