ILLINOIS POLLUTION CONTROL BOARD
June
15,
1992
GALLATIN NATIONAL COMPANY,
)
)
Petitioner,
PCB 91—256
v.
)
(Landfill Siting Review)
THE
FULTON
COUNTY
BOARD
and
THE
COUNTY
OF
FULTON,
Respondents.
DISSENTING OPINION (by J. Anderson and M. Nardulli):
We disagree with the majority’s decision not to support what
we
believe
is
the
appropriate
outcome,
namely,
reversal
of
the
Fulton County Board’s grant of siting approval as being
fundamentally
unfair.’
We
emphasize
that
our
dissent
is
based
upon
the
actions
of
the
Fulton
County
Board,
as
expressed
in
a
series of formal policy decisions.
We
appreciate
Fulton
County’s
desire
to
generate
revenue
from
a
landfill
expansion
rather
than impose a tax directly to
deal
with
its
compliance
problems
with
existing
Landfill
No.
2.
However,
Section
39.2
of
the
Environmental Protection Act
(Act),
Ill.Rev.Stat.
1991,
ch.
111½,par.
1039.2,
or
SB
172,
as
the
process
is
more
commonly
referred
to,
places
constraints on a
county’s power to implement such decisions simply as a matter of
policy.
We
believe
that,
if there
is to be any meaning given to
the
question
of
fundamental
fairness
regarding
pre—commitment in
the
quasi-judicial
SB
172
process,
it
should
be
given
in
this
case.
The
Fulton
County
Board
already
concluded on June 12,
1990,
that
the
expansion
was
necessary when it
rejected
two
other
options and decided to proceed with Option
3
(i.e., the landfill
expansion.)
This decision was subject to two preconditions:
1)
obtaining financing and
2) obtaining siting approval.
There was
no
back—up
option.
These conditions were not pre-conditions in
the
usual
sense
of
the
term,
however.
Rather,
the
two
conditions
were
“implementing
conditions” that were necessary to effectuate
the
Fulton County Board’s decision.
The Fulton County Board
affirmed its conclusion when it expressly passed, and utilized
monies from,
the bond ordinance for the sole purpose of expanding
Landfill No.
2.
In fact, the Fulton County Board stated in the
‘At
this
Board’s
June
4,
1992
meeting,
a
motion
to
adopt
such
an
outcome
was defeated by a 4—3 vote.
However, one Board Member,
who
voted
in
the
minority,
was
not
present
at
the
June
15,
1992
Board
meeting
where
the
4-2
majority
vote
was
taken.
134—273
2
bond ordinance that “it is necessary and advisable to improve,
extend
and
satisfy
existing E.P.A.
regulatory requirements of the
sanitary
landfill
facility
in
the
Fulton
County
Board”.
(C0870.)
In addition to the above, the following facts also show that
the Fulton County Board was predisposed to grant siting approval
and had,
for all intents and purposes, committed itself to doing
so.
First, the Fulton County Board had to pledge the future
receipts of the proposed expansion as collateral for the bond
ordinance.
The Fulton County Board only pledged the sales tax
intercept
revenue
as
security
for
the
bond
obligation
at
the
insistence of the Illinois Rural Bond Bank which,
in turn,
gave
Fulton County further incentive to commit to expanding the
landfill.
The fact that the Fulton County Board then issued the
bonds before the siting hearing and used some of the proceeds
from the bond issue to pay the engineers for drawing up the
expansion plans and the attorneys for their services at hearing
also
show
a
predisposition
on
the Fulton County Board’s part.
(Tr.
I
121.)
Importantly,
the
expansion
was
viewed
to
have
been
the
only
way
to
correct
problems
at
Landfill
No.
2.
Fulton
County
attempted
to
secure
a
supplemental
permit
from
the
Illinois
Environmental
Protection
Agency
(Agency)
for the overfilling of
Area
1, the elimination of Areas
6,
7,
and
8,
and
for
a
change
in
grade for the final grading plan,
but was advised by the Agency
that it would need to go through a siting process pursuant to
Section 39.2 of the Act.
(C0037,
C0842—0849, C1454.)
Because
sufficient
revenue
was
not
being
generated
by Landfill No.
2, the
expansion
and
the
associated
bond
issuance
was
the
only
way
to
fund
the
remediation.
(C1267—l268.)
We
also
do
not
agree
with
the
majority’s
belief that the
cases
of
Woodsmoke
Resorts,
Inc.
v.
City
of
Marseilles
(3d
Dist.
1988),
174
Ill.App.3d
96,
529
N.E.2d
274,
and
Fairview
Area
Citizens
Taskforce
v.
Pollution
Control
Board
(3d
Dist.
1990),
198
Ill.App.3d
541,
555
N.E.2d
1178,
1184
are
applicable
in
this
instance.
Those
cases
are
distinguishable
from
this
case
in
that
the decision—maker in those cases was not the applicant.
In fact,
contrary to the majority’s view, the supreme
court’s
opinion
in
E&E
Hauling
v.
IPCB,
116 Ill.
App.
3d 586,
451
N.E.2d
555
(2d
Dist.
1983),
aff’d
in
part
107
Ill.2d
33,
481
N.E.2d 664, certainly does not prevent and, we believe,
implicitly
supports
a
finding
of
fundamental
unfairness
in
this
instance.
The
facts
of
that
case
are
as
follows:
On
September
10,
1981,
E&E Hauling and the DuPage County
Forest
Preserve
District
applied
to
the
Agency
for
permission
to
expand
and
modify a landfill.
On
October
27, 1981,
the
DuPage
County Board passed an ordinance approving the proposed
modification and expansion.
The Agency had scheduled a public
I
34—2
7e~
3
hearing on the permit application for November
18,
1981.
It was
at this juncture that the General Assembly amended the Act,
effective November 12,
1981, to transfer the power for regional
pollution control facility siting approval from the Agency to the
local governing body.
The effect of the General Assembly’s
action was the postponement of any Agency permit issuance until
the DuPage County Board approved the siting.
The DuPage County
Board held
a hearing on Februaty 1,
1982, and voted to grant
siting approval on April 27,
1982.
On June 1,
1982 the Village
of Hanover Park
filed
a
petition
for
review
of
the
DuPage county
Board’s decision with this Board.
This Board reversed the DuPage County Board’s decision.
In
essence,
we found that the proceedings were fundamentally unfair
in
that
the
DuPage
County Board, whose members were also
coxtunissioners
of
the
co—applicant
District,
had
already
passed
favorable judgment on the application before the hearing had
begun, and therefore the DuPage County Board was not a proper
tribunal.
Village
of
Hanover
Park
v.
CountY
Board
of
DuPaae
et
~
PCB
82—69,
(August 30,
1982
and
September
2,
1982),
PCB
82—
69,
48
PCB
35
and
48
PCB
95.
In
reversing
this
Board,
the
appellate court agreed with the Board’s finding of fundamental
unfairness; however, the appellate court found that the Board
erred in reversing on that basis.
Rather,
it found, under the
rule of necessity, that the DuPage County Board properly heard
petitioners’ application even though suffering from otherwise
disqualifying
biases
and
conflicts
of
interest.
E&E
Hauling,
451
N.E.2d
at
556,
567.
The
supreme
court
agreed
with
the
appellate
court’s
conclusion
that
the
Board
erred in disqualifying the DuPage
County Board, but found the appellate court’s reasoning to be
erroneous.
The supreme court stated:
...the ordinances were simply a preliminary to the
submission of the question of a permit to the Agency.
Subsequently,
the
Act
was
amended
and
the
(County
Board was charged with the responsibility of deciding
whether
to
approve
the landfill’s expansion.
The
County
Board
was
required
to
find
that
the
six
standards
for
approval
under
the
amended
act
were
satisfied.
It
cannot
be
said
that
the
board
prejudged
the
adjudicative
facts,
i.e.,
the
six
criteria.
(emphasis added)
E&E Hauling,
481 N.E.2d at 668.
The supreme court’s conc1usi~nin E&E Hauling turned on the
fact that the siting authority rested with the Agency at the time
the DuPage County Board Passed the ordinances.
The supreme court
concluded that the ordinances were simply a preliminary step in
the siting review process because the DuPage County Board could
I
34—275
4
not have foreseen at the time that it passed the ordinances that
the General Assembly would amend the Act “in mid—stream” to give
local decision-making bodies SB 172 siting authority.
The
supreme.court’s reasoning hardly suggests that it might have
reached
the same conclusion if the DuPage County Board had been
the decision-maker at the time that it approved the ordinances.
In this instance, the power to approve Fulton County’s siting
application always rested with the Fulton County Board.
As a
result, the sequence of the Fulton County Board’s actions must be
examined in light of the fact that the Fulton County Board knew
that it was responsible for making the siting decision even
before Fulton County filed its siting application.
In fact,
on June 12,
1990,
13 months before Fulton County
filed its siting application, the Fulton County Board concluded
that the expansion was necessary and specifically cited the
necessity for the SB 172 approval.
Then, on November 13,
1990,
eight months before Fulton County filed its siting application,
the Fulton County Board affirmed its conclusion when it passed
the bond ordinance to build the expansion to get the revenues to
implement already—chosen Option
3.
By coming to such a
conclusion prior to the siting hearing, we conclude that the
Fuiton County Board unacceptably predetermined the outcome of the
siting hearing and that,
as a result, the siting proceeding was
fundamentally
unfair.
We reject the notion that our position would have any
bearing on the question of what preliminary steps might be taken
by
a
county
as
related
to
its
solid
waste
management
plan.2
In
fact,
such
a
notion is not relevant here because Fulton County is
not
expected
to
complete
its
plan
until
1995.
(C1192.)
Rather,
Fulton County’s desire to clean up pollution at the existing site
is the focus in this case, not county—wide management issues.
We also reject the notion that our position implies that a
county cannot take notice of anticipated revenues.
The problem
in this case, as the record makes clear,
is that this was Fulton
County’s
only
consideration.
The
other
two
options,
to
immediately
close
the
landfill
operation
or
to
close
the
landfill
operation
in
the
near future, were rejected precisely because
they
would
generate
insufficient
or
no
revenue
to
correct
the
problems
at
existing
Landfill
No.
2
so
that
it
would
be
in
compliance
with
the
Board’s
landfill
regulations.
When
defending
its
approval
of
Criterion
1,
the
“need”
criterion,
Fulton
County
and
the
Fulton
County Board tried to discount any coercive impact
on
the
Fulton
County
Board’s
siting
decision
by
arguing
that
if
siting
were
denied
there
would
be4
no
significant
financial
2Consistency
with
an
adopted
solid
waste
management
plan
became
an
SB
172
consideration
when
it
was
added
as
Criterion
8
in
Section
39.2
of
the
Act.
134—276
5
repercussions, indeed that the repercussions would be
less,
in
that the proceeds from the bond issue
(presumably those not
already
spent),
could
be
repaid
to
the
bank
to
satisfy
the
bond
obligation.
(Resp.
Br.
pp.
23,
24.)
The reality of the
situation dictates otherwise.
Even if one were to assume that
there would be no financial difficulty regarding the bond issue,
the fact is that the loss of the use of the bond monies would re-
create the same severe financial and compliance problems the bond
monies were supposed to cure;
it would place the county back to
square one.
Fulton County has never had to levy
a tax to finance
its landfill operations and was faced with a serious
noncompliance situation that could force Landfill No.
2 into
closure without sufficient monies to pay the costs involved to do
it properly.
Long before the SB 172 proceeding,
the Fulton
County Board had determined to continue operating Landfill No.
2
and to cure the problem of insufficient tipping fees by expanding
the landfill.
In terms of its commitment to this course of
action, we assert that this issue was decided at the outset when
Option
3 was chosen.
In terms of protecting its revenue source and the question
of predisposition, we are particularly struck by Fulton County’s
and the Fulton County Board’s argument in defending the Fulton
County Board’s “SB 172” decision on Criterion 1:
that legally
and historically
(20 years of operations)
it has a mandated
service area and a right to require that all solid waste
generated be delivered to its landfill,
to the exclusion of any
newcomers.
(Resp.Br. pp.
26—31)
In support of its argument,
Fulton County and the Fulton County Board, base their legal right
on the statutory authority language that the Fulton County Board
relied on when it issued the bonds
(i.e., Section 5—1047 of the
County Code,
Ill.Rev.Stat. 1991,
ch.
34, par.
5-1047).
(Resp.
Br.
p.
27).
The language relied upon provides:
In
order
to
secure
repayment
of
revenue
bonds
issued
to
finance
regional
pollution
control
facilities,
to
further
this
state’s
policies
and
purposes,
to
advance
the
public
purposes
served
by
resource
recovery,
and
to
authorize
the
implementation
of
those
solid
waste
management
policies,
sic
counties
deemed
in
the
public
interest,
any
county
which
has
prepared
a
solid
waste
management
plan....shall
have
the
authority
to
require
by
ordinance,
license,
contract
or
other
means
that
all
or
any
portion
of
solid
waste,
garbage,
refuse
and
ashes,
generated
within
the
unincorporated
areas
of
a
county
be
delivered
to
a
regional
pollution
control
facility
designated
by
the
cpunty
Board
or
a
transfer
station
serving
such
facility
for
treatment
or
disposal
of
such
material.
Such
ordinance,
license,
contract
or
other
means
may
be
utilized
by
a
county
to
insure
a
constant
flow
of
solid
waste
to
the
facility
notwithstanding
the
fact
that
competition
may
be
1 ~4—277
6
displaced
or
that
such
measures
have
an
anti—
competitive
effect.
.
.
Arguments
that
the
Fulton
County
Board
had
no
predisposition
to approve the siting require one to ignore the reality of the
situation.
We
have
already
addressed
some
pre—conunitment
issues
in the record raised in relation to Criterion 1.
The Fulton
County
Board’s
views
in
upholding
Criterion
1
(i.e.,
that
“the
facility
is
necessary
to
accommodate
the
waste
needs
of
the
area
it
is
intended
to
serve”)
particularly
reflects
its
predisposition
to
approve
the
expansion
of
Landfill
No.
2
for
revenue.
In
our
view,
the
record
on
the
question
of
need
supports
this
conclusion.
Taken together there was no other consideration,
at least no
other
proper
consideration,
and
certainly
not
from
a
quasi—
judicial
perspective,
regarding
need.
This
Board
has
been
cautioned
about
undue
deference
to
the
local
decision—maker.
Industrial
Fuels
&
Resources/Illinois,
Inc.
v.
Illinois
Pollution
Control
Board
et
al.,
No.
91—0144,
(1st
Dist.
March
19,
1992).
Mr.
Spencer
himself
testified
that
the
real reason he
believed
Landfill
No.
3
was
necessary
was
to
provide
a
revenue
stream to correct problems
of Landfill No.
2.
(C1267-1268;
C1305—1306.)
As
Gailatin
correctly
points
out,
Tate
v.
Pollution
Control
Board
(4th
Dist.
1989),
188
Ill.App.3d
994,
554
N.E.2d
1176
and
A.R.F.
Landfill,
Inc.
v.
Pollution
Control
Board
(2d
Dist.
1988)
174 Ill.App.3d 82, 528 N.E.2d 390 stand for the proposition that
future development of other disposal sites must be considered in
determining need.
(See also Waste Management of Illinois,
Inc.
v. Illinois Pollution Control Board
(3rd Dist.
1984),
122
Ill.App.3d
639,
461
M.E.2d
542
and
Waste
Management
of
Illinois,
Inc.
v.
Illinois
Pollution
Control
Board
(2d
Dist.
1988),
175
Ill.App.3d
1023,
530
N.E.2d
682.)
Accordingly,
the
fact
that
a
permit
had
been
issued
to
Gallatin’s
facility
should
have
been
considered
.~
Finally, given Fulton County’s claims of monopoly rights,
which the majority had no problem with,
we find particularly
ironic the majority’s belief that the legislature,
in requiring
local decision—makers to consider the waste needs of the intended
3We note that the language above appears to rely on the county
having
a
prepared
solid
waste
man~gement plan.
4We
also
note
that
the
Board’s
new
landfill
regulations
consolidate
both
the
development
and
operating
aspects
for
review
before
a
permit
can
be
issued.
134—278
7
service
area,
did
not
intend
to
establish
de
facto
monopolies.
In
any
event,
this
is
not
a
valid
consideration
under
the
criteria.
Moreover,
whatever
the
legislative
intent
might
have
been
when
SB
172
was
initially
adopted,
the
subsequent
addition
of
Criterion
8
certainly
suggests
that
de
facto
monopolies
could
often
result.
We
suggest
that
a
review
of
the
two
Acts
identified
in
Criterion
8
(i.e.,
the
Local
Solid
Waste
Disposal
Act
and
the
Solid
Waste
Planning
and
Recycling
Act)
will
support
this.
We
note
that
counties
are
required
to
adopt
solid
waste
management
plans,
and
SB
172
considerations
must
defer
to
those
plans.
In summary, the Fulton County Board’s initial decision to
formally select the expansion of Landfill No.
2 as the chosen
option to get revenues to cure its considerable landfill
problems,
its implementation of its decision by first issuing
bonds dedicated solely to financing the landfill expansion,
and
then, at the end,
its decision to give siting approval, all
form
an unbroken loop.
The Fulton County Board’s post—commitment to
site the landfill validated the terms of the bond issue which,
in
turn, allowed the bond monies to continue to be used to generate
the
revenues
pre-conunitted
to
solve
the
landfill
problems.
The
pre—coinmitment
was
manifest
throughout.
When
the
time
came
to
consider
the
criteria,
it
was
a
ministerial
act.
We
note
that
Fulton County had already been frustrated by the Agency’s refusal
to consider granting a permit to expand absent siting approval.
Expansion concerns expressed centered on whether enough revenue
would
be
generated
with
the
expansion
option;
however,
this
issue
was
decided
when
the
expansion
option
was
chosen
at
the
outset.
We
understand
the
discomfort
over
dealing
with
the
awkward
situation
created
under
SB
172
when
a
local
government
decision—
maker
has
to
judge
the
merits
of
siting
its
own
proposed
facility.
However,
we
reject the view that the legislature never
intended
this
situation.
First,
county
and
municipal
landfills
were
common
when
SB
172
was
adopted
eleven
years
ago,
as
they
are
today.
Second,
the
dilemma
came
to
a
head
immediately
in
~
Hauling
and
the
legislature
has
yet
to
change
the
situation.
It
is
for
these
reasons
we
believe
that
the
Fulton
County
Board’s
grant
of
siting
approval
to
Fulton
County
was
fundamentally
unfair
and
should
have
been
reversed.
In
fact,
if
the
circumstances
of
this
case
do
not
constitute
predisposition
sufficient
to
give
rise
to
fundamental
unfairness,
we
cannot
imagine
what
circumstances
would
be
sufficient
for
the
Board
to
make
a
finding
of
fundamental
unf~irness.
134—279
8
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, h~~ebycertify that—theabove dissenting opinion was filed
on the
~
day of
1992
/12),
________
Control Board
We therefore respectfully dissent.
Illinois
134—2
80