ILLIN~IS POLLUTION CONTROL BOARD

October 1, 1987

A.R.F. LANDFILL, INC.,

Petitioner,

v.

)

PCB 87—51

LAKE COUNTY,

Respondent.

DISSENTING OPINION (by J. Theodore Meyer):

I dissent from the majority opinion adopted in this matter.

MOTION FOR SANCTIONS

I disagree with the majority’s disposition of Petitioner’s

motion for sanctions. The majority properly states that each and

every member of the County Board clearly violated the Hearing

Officer’s order, and notes the Hearing Officer’s critical role in

proceedings before this Board. However, the majority then moves

to a discussion of whether the interrogatories at issue were

proper. After concluding that many of the questions were

improper, the majority abruptly states that the motion for

sanctions is denied. In my mind, there is little connection

between the properness of the interrogatories and the disposition

of the motion. Rather, the issue is whether the violation of the

Hearing Officer’s order warrants sactions.

35 Ill. Adm. Code 107.101(c) provides that if a party

unreasonably refuses to comply with any order issued pursuant to

the Board’s regulations, the Board may impose such sanctions as

are just. I am very concerned that the majority, in denying

sanctions, has failed to support the Hearing Officer, and has, in

effect, told parties to future proceedings that they may ignore

Hearing Officer orders if they feel that there is any chance that

the subject of the order might be found improper. The Hearing

Officer is a vital participant in Board’s proceedings, and his

authority must be upheld. There has been no finding that the

Hearing Officer’s order itself was improper. I also note that

although the majority states that Petitioner’s motion fails to

allege how it was prejudiced by Respondent’s failure to comply,

Petitioner alleges that the failure to respond hampered its

preparation for the June 24 hearing, and that its decision

whether to depose certain County Board members was dependent upon

information requested in the interrogatories (Emergency Motion

for Sanctions at 1,4). Given Respondent’s blatant and

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unexplained violation of the Hearing Officer’s order, I would

grant the motion for sanctions and bar Respondent from filing any

pleading or raising any issue relating to the questions asked in

the interrogatories. 35 Ill. Adm. Code 107.101(c); Environmental

Protection Agency v. Popp, PCB 79—215 (October 30, 1980);

Environmental Protection Agency v. Allaert Rendering, Inc., PCB

76—80 (Se~tember 6, 1979); Environmental Protection Agency v.

City of Oregon, PCB 78—37 (April 27, 1978).

Criterion No. 1

I also disagree with the majority’s decision on criterion

one

—

whether the proposed facility is necessary to accommodate

the waste needs of the area it is intended to serve.

There

was

no evidence presented which rebutted

Mr.

Thorsen’s testimony that

Lake County needs more landfill space: even Mr. Luedtke, called

by the objectors, admitted that additional space is necessary (R.

January 28, 1987, p. 44). The fact that the Lake County Joint

Action Solid Waste Planning Agency (SWAC) feels that the proposed

landfill would hurt its ability to implement a solid waste

management plan is not relevant to the landfill siting process.

(I note that the Illinois General Assembly has recently amended

Section 39.2 to require that a proposed facility be consistent

with any solid waste management plan a county may have adopted.

However, that amendment was recently amendatorily vetoed.

Regardless of whether the General Assembly accepts the veto or

overrides it, that amendment was not effective at the time the

instant case was before the County Board. Additionally, the

amendment requires consistency with any plan which may have been

adopted, and Lake County has not yet actually adopted such a plan

(R. January 28, 1987, pp. 29—30, 34—35).) I also do not consider

the fact that Mr. Thorsen apparently considered only Lake County

landfill facilities in his analysis to be a fatal flaw. Given

the current feeling about new landfills and the increasing

problem of finding sufficient disposal space, I feel that it is

only prudent to plan to dispose of a county’s waste in that

county. It is impossible to know what restrictions will be

placed on “outside” waste at the landfill facilities in the

surrounding area, including Wisconsin, at the time Lake County’s

landfill capacity is exhausted. Therefore, I would reverse the

County Board’s finding on criterion one.

Criterion No. 2

My dissent from the majority opinion on criterion two

—

whether the proposed facility is so designed, located, and

proposed to be operated as to protect the public health, safety,

and welfare

—

arises from the belief that Section 39.2 does not

empower the county to consider technical aspects of landfill

design.

82—82

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Section 2(b) of the Environmental Protection Act (Act)

specifically states that the Act’s purpose is “to establish a

unified, state—wide program, supplemented by private remedies to

restore, protect, and enhance the quality of the environment

.“

(emphasis added.) (Ill. Rev. Stat. 1985, ch. 1111/2, par.

1002(b)). It is impossible to achieve such a unified, state—wide

plan if each unit of local government is allowed to consider

whatever technical factors it chooses. Technical aspects are

beyond local government’s expertise, and are the province of the

Illinois Environmental Protection Agency (Agency) and the

Board. I recognize that the courts have held that local

governments may consider technical aspects of landfill design

(see, eg., Waste Management of Illinois, Inc. v. Illinois

Pollution Control Board, No. 87—0029 (2d Dist., September 11,

1987); Mcflenry County Landfill v. Illinois Environmental

Protection Agency, 154 Ill. App. 3d 89, 506 N.E. 2d 372 (2d Dist.

1987)), but I must respectfully disagree.

We must recognize the many political problems associated

with voting “yes” for a proposed facility. One of government’s

functions is to provide for waste disposal, and there can be no

question that this an essential function. However, the waste

disposal issue is a victim of the “not in my backyard”

syndrome. It has been said that everybody wants their garbage

picked up, but nobody wants it put down. A recent Agency report

states that the average life of remaining landfill space in

Illinois is only 5.3 years. This figure illustrates the

necessity of dealing with the waste disposal issue immediately.

It is apparent that localities are not going to solve the

problem. I must point out that Rockford, the city which was

involved in the first court case over landfill siting, is once

again struggling to provide for waste disposal, and has an appeal

of a siting denial pending before the Board. See O’Connor v.

City

of

Rockford, 52 Ill. 2d 360, 288 N.E.2d 432 (1972); City of

Rockford v. Winnebago County Board, PCB 87—92. I also note that

the instant case involves an expansion of an existing landfill

which apparently has not been the subject of any formal

complaints about design, location, or operation. If a new

landfill cannot be sited next to an existing landfill, where can

it be located? Given the political realities of the local

landfill siting approval process, it is imperative that the

Agency retain its authority over technical aspects of landfill

design if we are to deal with the waste disposal issue. As

things stand now, the localities and the Board are siting (or not

siting) regional pollution control facilities. The Agency should

be involved, as the legislature intended, by participating in the

permitting process. Ill. Rev. Stat. 1985, ch. llll/2, par. 1039.

Because I believe that local governments are not authorized

to consider technical details of landfill design, I feel that

Petitioner presented sufficient evidence that the proposed

facility would protect the public health, safety, and welfare.

82—83

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The concerns over potential sand lenses, gas vents, liner, etc.,

are best addressed by the Agency in its permitting process and by

Board regulations. I would reverse the County Board’s decision

on criterion two.

Criterion No. 6

Finally, I disagree with the majority’s disposition of

criteria six

—

whether the traffic patterns to and from the

facility are so designed as to minimize the impact on existing

traffic flows. Petitioner’s witness, Mr. Salzman, is associated

with Barton—Aschman Associates, Inc., one of the premier traffic

engineering firms in the country, and his credentials far

outweigh those of the objectors’ witness. Mr. Salzman testified

that this is generally a state—of-the art proposal. (R. January

26, 1987, p. 109.) Objectors’ witness admitted that driver error

was a major portion of his concern (R. February 4, 1987, p. 184),

a factor which is beyond Petitioner’s control. I again point out

that the proposed landfill is an expansion of an existing

landfill which has not been the subject of formal complaints

about traffic problems. I would reverse the County Board’s

decision on criterion six.

Concl us ion

For those reasons, I must dissent from the majority

opinion. I would reverse the County Board’s denial of landfill

siting approval.

~

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J.~iI’heodore Meyer

Board Member

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was filed

on the

~‘~day of

_________________,

1987.

Illino Pollution Control Board

82—84