I Lii NO.1

S

POLLUTI ON CONTROL BOARfl

September 23, 1993

LAPS V 

SLATLS

Lo1:N1 E SEYMOUS

1 LAB52

BAY B MOTT

and

HOOPESTON cc:Sul:i2Y

rO:5oRJ

AL

Petitioners.

POE 93—106

(Landfill Siting Review)

ILLINOIS LANDFILLS, INC, 

and

HOOPESTON CITY COUNCIL, on

behalf of the CITY OF HOOPESTON,

Respondent.

DISSENTING OPINION (by P.C. Flemal):

The majority relies on Metropolitan Waste Systems, Inc. (3rd

Dist. 1990, 201 Ill..App.3d 51, 568 N.E.2d 785, 787) for the

proposition that the landfill applicant defines the intended

service area, and from this one point finds disposition of this

entire matter. However, I believe that the circumstances faced

by the court in Metropolitan Waste Systems were so different that

it is error to extend that decision to the circumstances found

here.

In Metropolitan Waste Systems the court found that it was

wrong for the local decisionmaker to redefine the area of need

with the purpose of creating a basis for denial of a landfill

application. I believe that the court ruled as it did to protect

against such arbitrary and manipulative action by a

decisionmaker.

The instant matter is distinguishable from Metropolitan

Waste Systems in that here the local decisionmaker found that the

landfill was locally needed. Here the local decisionmaker did

not construct an arbitrary standard designed to force a

particular outcome. There is rio reason, therefore, to apply a

principle intended to protect against arbitrariness 

——

particularly so where application of that principle leads to a

consequence that is contrary to the intent of the statute itself.

The intent of the landfill siting statute is to give local

citizens, through their elected officials, a say ih the siting of

a landfill. The decision includes a determination of whether

there is a supported need for the landfill. The city council has

here made that determination. Today’s majority decision,

however, voids that right of local decision. I cannot find

anything 

in the

act ion of the 

city

council so flagrant as to

warrant that r 

iih~ Leirkq vc’jded.

‘Ihe city counci d~d

answer affir~t:vely that there 

a

need

t cr a I  and 

i  ii to so 

rye Hoopeston and

Vermi 1 i on 

County

what t hc cit v counc i

did not: do is anscer the quest ion whether

thcie is also a nee2 for landfill capac~tv for a whole list of

add it i ona i count en.

Dc ~e therefore

tel i Hoopeston that “you

may

not. 

have the landfill

that you bel ie~.’e you need, and which

you find to satisfy all

cl

the other statutory criteria,

because

you have not deternined a need for a landfill

to serve Lake and

Cook: Counties?

or some other subset of remote counties?” I find

this absurd and so contrary to statutory

intent of local

decisionmakinq 

as to be unacceptable.

There is further problem. If we accept arguendo that the

majority correctly applies Metropolitan Waste Systems, I cannot

accept that reversal is either called for or just.

Reversal is a very substantial consequence. The entire

effort to date is lost, and pursuant to Section 39.2(m) may not

even be able to be reinstituted for a two-year period. This is

an enormous penalty to impose upon the city council for its error

(if in fact that is what it was), yet alone upon’the applicant.

Reversal would be the correct outcome if the city council

had rei~deredits decision contrary to the manifest weight of the

evidence; justice would be served by the voiding a of decision

that was contrary to the evidence.

But the city council’s decision was not contrary to the

evidence. The council’s error (if in fact that is what it was)

was one of failure to render a complete decision 

-—

not one of

rendering a patently false decision. At the worst their action

would seem to constitute a failure to completely exercise their

statutory authority. The Act does indeed provide that failure of

the local decisionmaker to make a timely decision results in a

default decision (see Act at 39.2(e)). But the default is for

the applicant, riot against it. In any event, it should not be

the applicant that is prejudiced by the error (if •in fact that is

what it was) of the city council.

My own preference would have been, still assuming arguendo

that, Metropolitan Waste Syster~ is indeed binding, to remand the

matter to the city council for a complete decision. If it is

found that the applicant did not properly establish need (with

all appropriate appeals satisfied) 

the application justly falls

on its merits. If it is found that the applicant did properly

establish need (with all appropriate appeals satisfied) 

the

application justly prevails. This course would have preserved

the right of local decisionmaking, conserved society’s investment

in the consideration of this matter, and served the right of all

interested

persons to a complete adadication.

—3—

For

these reasons, I dissent.         

Ronald~C. Flemal

Board Member

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

Board, hereby certify tI~atthe above dissenting opinion was

submitted on the 

2I~

day of  

.~: •;~.‘ ~

1993.

//‘

,/

.-.(

Dorothy M. qunn, Clerk

Illinois Pollution Control Board