ILLINOIS POLLUTION CONTROL BOARD

October 18, 1989

CHRISTIAN COUNTY LANDFILL, INC.,

Petitioner,

v.

)

PCB 89—92

CHRISTIAN COUNTY BOARD,

)

Respondent.

DISSENTING OPINION (by B. Forcade):

I dissent from the majority’s action today. I believe the

sweeping rejection of the Christian County Board’s conditions is

not warranted.

The Environmental Protection Act (“Act”) allows local

governments to approve or deny the siting of landfills such as

the one under review here. If the county board decides to

approve, it may impose conditions upon that approval. Section

39.2 (e) of the Act states in pertinent part:

***In granting approval for a site the county

board or governing body of the municipality

may impose such conditions as may be reason-

able and necessary to accomplish the purposes

of this Section and as are not inconsistent

with regulations promulgated by the Board.

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(Emphasis added).

In evaluating the distinction between decisions to grant or deny

site approval and decisions to impose conditions, the courts have

generally held the former to be adjudicatory in nature and the

latter to be legislative in nature. Our Second District reached

its conclusion after evaluating similar law in the Act regarding

this Board’s authority relating to variances:

While the line between adjudication and rule

making “may not always be a bright one”, the

basic distinction is one “between proceedings

for the purpose of promulgating policy-type

rules or standards, on the one hand, and

proceedings designed to adjudicate disputed

facts in particular cases on the other.”

(United States v. Florida East Coast Railway

Company, 410 U.S. 224, 245, 93 S.Ct. 810, 821,

35 L.Ed.2d 223, 239 (1973).) Under section

39.2 the Board’s decision on the grant or

denial of a permit turns on its resolution of

disputed fact issues, whether the particular

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landfill, or expansion, for which the permit

is sought meets the specific factual criteria

set out in section 39.2 of the Act. The facts

that the Board relies on are developed

primarily by the immediate parties rather than

acquired through the Board’s own expertise.

Our supreme court has held that the

decision whether to grant a variance from an

environmental regulation is quasi-adjudica-

tory, although the imposition of conditions on

the variance is rule making. (Monsanto v.

Pollution Control Board, 67 Ill.2d 276, 289—

90, 10 Ill.Dec. 231, 367 N.E.2d 684 (1977).

See also Environmental Protection Agency v.

PCB, 86 Ill.2d 390, 400, 56 Ill.Dec. 82, 427

~T~.2d 162 (1981); Willowbrook Dev. Corp. v.

Pollution Cont. Bd., 92 Ill.App.3d 1074, 1081—

82, 48 Ill.Dec. 354, 416 N.E.2d 385 (1981).)

As the factual criteria involved in the County

Board’s decision under Section 39.2 are not

substantially broader than those in the

statutes involved in the above—cited cases, we

adopt a similar rule here.

E&E Hauling, Inc. et al v. PCB and The Village

of Hanover Park, 116 Ill.App.3d 451, 451

N.E2d 566 (Second Dist., 1983).

In a similar proceeding the Third District also determined

that the decision to approve or deny is adjudicative and the

imposition of conditions is legislative:

The characterization of these proceedings does

not fit comfortably into any particular

niche. They are adjudicatory in the sense

that the County Board takes evidence on the

disputed issue of whether the six statutory

criteria are satisfied. However, they are

legislative in the sense that imposition or

deletion of conditions is “the promulgation of

policy—type rules or standards” U.S. v.

Florida East Coast Railway Company (1973), 410

U.S. 224, 245, 93 S.Ct. 810, 821, 35 L.Ed.2d

223, 239.

Town of Ottawa v. IPCB, 129 I11.App.3d 121,

472 N.E.2d 150 (Third Dist., 1984).

The seminal case on the standard of review for adjudicatory

and legislative decisionmaking is Monsanto Company v. Pollution

Control Board 67 Ill. 2d 276, 367 N.E. 2d 684 (1977). There, our

Supreme Court held that the imposition of conditions involves

policy planning for future conduct and should be reviewed

accordingly:

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The setting of conditions, unlike the decision

to grant a variance, is not quasi—judicial in

nature, but rather is one manifestation of the

power granted the Board to act as the policy-

making body. Section 36 of the Act is a

rather broad delegation to the Board of power

to impose whatever conditions are necessary to

effectuate as nearly as possible the policies

of the Act when a variance from statewide

standards is granted. It is, in a word, rule-

making power, in the sense that its focus is

on future conduct and its efficacy depends

upon agency expertise. “Judicial judgment

should not be substituted for administrative

judgment on questions within the agency’s

statutory power of rule making.” (Davis,

Administrative Law, sec. 30.10, at 247

(1958).) The Board, unlike this court, is

well equipped to determine the degree of

danger which a pollutant will cause, and then

to balance that public threat against an

alleged individual hardship and reach a con-

clusion as to what limits should be placed

upon a temporary variance. The power granted

to the Board by section 36 is tantamount to

the quasi—legislative power to make pro-

spective regulations and orders.

(See

Illinois Central R.R. Co. v. Franklin County

(1944), 387 Ill. 301, 56 N.E.2d 775.) When a

regulation is promulgated by an agency pur-

suant to a grant of legislative power, a

reviewing court should not substitute its

judgment as to the content of the regulation,

because the legislature has placed the power

to create such regulations in the agency and

not in the court. (Davis, Administrative Law

sec. 5.03 (1958).) Since in setting interim

discharge standards the Board is, in effect,

making future policy pursuant to the leg-

islative delegation of section 36(a), we must

be just as circumspect about interfering with

the Board’s discretion in establishing

variance conditions as we are in dealing with

the enactment of regulations. In summary,

then, the proper scope of review of conditions

limiting a variance is the same as that

applied, to board regulations in Illinois Coal

Operators Association: whether the Board’s

action was arbitrary, unreasonable, or capri-

cious. See Currie, Rulemaking Under the

Illinois Pollution Law, 42 U.Chi.L.Rev. 457,

479 (1975).

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This holding was specifically reaffirmed by the Supreme Court

four years later in Environmental Protection Agency v. Pollution

Control Board 86 Iii. 2d 390, 427 N.E. 2d 162 (1981). Since the

“arbitrary and capricious” standard is never mentioned in the

majority opinion, I believe the majority has applied the

incorrect standard of review.

Based on the foregoing authority I would find that the

conditions imposed by the Christian County Board must be affirmed

unless they are clearly arbitrary, unreasonable, or capricious.

Further, such conditions may be imposed to accomplish the

purposes of Section 39.2, which means that local authorities can

impose “technical” conditions on siting approval. County of Lake

v. Pollution Control Board, 120 Ill. App. 3d 89, 457 N.E. 2d 1309

(2nd District, 1983). And, there is no requirement that the

county detail the relationship between the criteria and the

conditions which support them. E&E Hauling, Supra. With this

background it is appropriate to look at the conditions stricken

by the majority.

The first condition I would like to review is condition E.

That condition relates to granting disposal priority to waste

from Christian County. The language of the condition, and the

reasons the Committee recommended its inclusion are as follows:

That Christian County refuse haulers be given

priority at the proposed site for their refuse

if any daily limit is reached provided the

applicable fee for disposal is paid. Chris-

tian County refuse haulers shall be defined as

any refuse hauler carrying refuse from or

produced in Christian County.

The Committee recommends this condition to the

Christian County Board after considering the

following factors: First, Christian County is

providing a regional site for the disposal of

regional waste. Second, the Committee finds

that the facility is necessary to accommodate

the waste needs of Christian County pri-

marily. Third, the Committee has received no

evidence to show that a larger flow of truck

traffic caused by out of county trash haulers

would not increase the danger to Christian

County drivers using Illinois Route 104 and

other Christian County roads.

The condition is claimed to relate to two components of Section

39.2, namely, criterion I (the need criterion) and criterion 6

(the traffic criterion). Those criteria provide as follows:

1. The facility is necessary to accommodate

the waste needs of the area it is

intended to serve; and

124-3~

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6. The traffic patterns to or from the

facility are so designed as to minimize

the impact on existing traffic.

It is obvious that the condition relates to “the waste needs of

the area intended to be served”, and “the traffic patterns to and

from the facility.” The question then becomes whether the

condition is clearly arbitrary or capricious. To make this

determination it is necessary to review prior Board holdings,

especially on the need criterion, Criterion #1.

The Board has long had difficulty with the need criterion,

i.e., what is the “area intended to be served” and who gets to

define it. If the applicant alone can determine what the area

will be, and the applicant includes some portion of Chicago in

that area, then need will almost certainly be shown in all

cases. A factual situation similar to this arose in FACT v.

Village of Fairview, PCB 89—33, June 22, 1989. There the

applicant defined the area intended to be served as the area

around Fairview, and the area around Chicago, approximately 150

miles to the northeast. In evaluating whether such a distant and

discontinuous area could be included in the area intended to be

served, this Board held that the local government body has the

right to determine whether the proposed service area is

acceptable or unacceptable:

The Board also rejects FACT’s claim that

allowing Gallatin to include northeastern

Illinois in the proposed service area would

effectivelyabolish the need criterion. FACT

alleges that a landfill applicant could always

propose accepting a small amount of waste from

large urban and industrial areas and thus

always establish a need for the proposed

facility. FACT’s argument misapprehends the

intent and the language of the statute.

Criterion one is whether “the facility is

necessary to accommodate the waste needs of

the area it is intended to serve.” Section

39.2(a)(l) of the Act. Gallatin has defined

the area the facility is intended to serve as

Fulton County and five adjoining counties,

plus six counties in northeastern Illinois.

(R. Vol. III at 6). By finding that criterion

one has been satisfied, the Village Board has

accepted Gallatin’s proposed service area.

The landfill siting process in Illinois gives

local governments the authority to decide

certain issues in that process, including (at

least by implication) the area intended to be

served. The statute does not say “local

area”, or make any implication that the

geographical area of service is limited. The

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Village Board has the power to determine if a

proposed service area is acceptable or unac-

ceptable, and the Village Board made an

affirmative decision on the issue. This Board

will not disturb that decision.

The Board has repeatedly upheld local government denials on the

need criterion where local governments could have reasonably

chosen a different area or where the applicant chosen area might

be described as gerrymandering. A.R.F. v. Lake County Board, PCB

89—15, May 29, 1989; Waste Management v. Lake County Board, PCB

88—190, April 6, 1989; Roger Tate et al. v. Macon County Board,

PCB 88—126, December 15, 1988; Waste Management v. Lake County

Board, PCB 87—75, December 17, 1987; A.R.F. v. Lake County Board,

PCB 87—51, October 1, 1987; and Industrial Salvage v. County

Board of Marion, PCB 83—173, February 22, 1984.

In this case, Christian County could have denied the

application because the area intended to be served was too large.

The Christian County Board could have determined that the

appropriate area was only Christian County. Based on the existing

precedent of decisions by this Board, such a decision would have

been affirmed. If Christian County could have denied a landfill

that would accept out of county waste, then it seems neither

arbitrary or capricious to grant approval with a condition that

local waste be given priority.

I also reject any argument that such limitations violate

constitutional concepts. No one has presented facts to show a

burden on interstate commerce, and the constitution does not

address intrastate commerce.

In summary, I cannot find that the contested condition is

unrelated to factors under Section 39.2, or that the condition is

clearly arbitrary or capricious. I will not substitute my judg-

ment for that of the County Board. Therefore, I would affirm the

condition.

The second condition I would review is condition G. That

condition and the reasons the committee recommended it are as

follows:

That the Sheriff of Christian County, or the

Christian County Health and Sanitary Officer

or any designated body authorized by the

Christian County Board shall have the right to

inspect the premises or do testing of or at

the proposed site as is deemed necessary to

protect the citizens of Christian County.

The committee recommends this condition to the

County Board to ensure that there are adequate

powers necessary to assure the citizens of

Christian County that criteria ii and v are

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being complied with by the Christian County

Landfill, Inc.

Again, this condition seems clearly related to criteria under

Section 39.2, leaving only the question of whether it is clearly

arbitrary or capricious. Based on an analysis of what conditions

a county board can adopt and what methods it may use to enforce

those conditions, I conclude that an inspection condition is not

arbitrary or capricious.

Local governments have an “unequivocal statutory directive

to consider the public health ramifications” of proposed

landfills. City of East Peoria v. PCB, 117 Ill.App.3d 673, 452

N.E. 2d 1378 (Third District, 1983). Further, local governments

can impose “technical conditions” on siting approval to accomp-

lish the purposes of Section 39.2

,

County of Lake v. PCB

,

120

Il1.App.3d 89, 457 N.E. 2d 1309, (Second District, 1983). Once

those technical conditions are imposed, the Act implies a power

to enforce them. In addressing the ability of counties to

enforce conditions the Second District stated:

...The power to impose conditions under

section 39.2(e) implies a power to enforce

them. (Ill. Rev. Stat., 1982 Supp., ch. 111L

par. 1039.2(e).) The County Board can enforce

its conditions in an action before the PCB as

provided in sections 31(b) and 33(a). The

broad language in those sections states that:

Any person may file with the Board a

complaint.., against any person

allegedly violating this Act....

(Ill. Rev. Stat., 1982 Supp., ch.

l1l~, par. 1031(b).). also

The Board shall issue and enter

such final order, or make such final

determination, as it shall deem

appropriate under the circum-

stances. (Ill. Rev. Stat. 1981, oh.

11l~, par. 1033(a).)

Siting approval conditions are imposed by

virtue of the authority of the Act. A

violation of a condition properly imposed

under this authority is a violation of the

Act. The County Board then is left with the

“private remedies” (Ill. Rev. Stat. 1981, ch.

lll~, par. 1002(b)), afforded under these

sections.

County of Lake, Supra.

104—393

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If the Act authorizes local governments to impose technical

conditions, and authorizes local governments to enforce those

conditions and prevent their violation, then I believe the Act

must also, of necessity imply a right to determine by inspection

whether its conditions are being violated. Otherwise the right

to impose and enforce conditions would be meaningless.

The ability of local governments to impose an “inspection

condition” has long been controversial at this Board. The

rationale for allowing inspection was persuasively stated in a

dissenting opinion in 1982:

Before “recommendations” can be made, the

County must have information. The majority,

in striking Condition “E” denies to the County

the inspection of special waste manifests and

also the right to test wastes for

verification. Yet in Board discussion no one

objected to County inspection of the special

waste manifests. Condition “E”, as a minimum,

could have been amended to at least allow

inspection of the manifests.

Let us review a key criterion in the

Act. It reads as follows:

the facility is so designed, located

and proposed to be operated that the

public health, safety and welfare

will be protected Section

39.2(a)(2fl (emphasis added).

The operation of a special wastes landfill can

imperil public health.

Certain organic

solvents such as acetone, toluene and xylene

are known

to

make clay layers more permeable

and thus easier for leachate passage to water

supply aquifers.

Inspection of manifest

documents to verify the important liquid:

solid ratio is a method of insuring the public

health and safety. This power was denied by

the rejection of Condition “E”.

Beyond inspection of manifests comes the

verification of substances disposed. How is

mislabelling to be detected? It can only be

found by chemical testing. The remainder of

Condition “E” would have allowed Lake County

to take samples for its own testing. What is

the harm in doing this? The procedure would

keep the site operator and the hauler on their

toes. The IEPA, strapped for funds, cannot do

more than a token effort in this regard.

394

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I would have allowed Condition “E” in

full so long as disposal operations were not

seriously slowed by sample taking. Lake

County should be allowed to protect its

citizens and its aquifers from the disposal of

improper types or quantities of special

wastes.

Browning—Ferris Industries v. County of Lake,

PCB 82—101, Dissenting Opinion of Jacob ID.

Dumelle, December 2, 1982.

Based on this evaluation, I cannot find that the inspection

condition under review here is arbitrary or capricious. I would

affirm the condition.

While these are not the only conditions reviewed by the

majority, they are indicative of the different approach I take to

review of conditions. Accordingly, I dissent. Until the courts

more clearly define the role of this Board in review of County

Board conditions, I am especially reluctant to overturn such

conditions.

Bill S. ~rcade, Board Mei~S~r

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

Board, hereby certify that the above D,issejiting Opinion was

submitted on the

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day of

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1989.

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