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.
#c~
(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
1fl4 3~7
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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
1~43~1
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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
,~-‘-
day of
~
1989.
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Ill
S
lu t Control Board