ILLINOIS POLLUTION CONTROL BOARD

~ugust

2,

1984

INDUSTRThL

SALVAGE,

INC..,

)

Petitioner,

I

V.

)

PCB 83—173

I

COUNTY BOARD OF MARION,

)

Respondent.

DISSENTING

OPINION

(by

J~

Anderson and

J.

T. Meyer)~

We dissent because,

for a number of reasons, we believe the

Board erroneously upheld the County’s decision on Criterion #1,

whether “the facility is necessary to accomodate the waste needs

of the area it

is intended to serve”

(Ill. Rev. Stat.

ch.

111½

§1039.2(a)L

We believe that the Board’s review of the record

was faulty and misfocused, and that its evidentiary expectations

and its reasoning seriously erode its prior balanced approach to

interpreting Criterion

#1.

The key issue is whether it is clearly apparent, under the

manifest weight standard,

that Industrial Salvage

(Industrial)

sufficiently showed that the facility was necessary in terms of

the waste production and waste disposal capabilities of certainly

a major component of the

“area intended to be served”.

Even

apart from the dependence of isolated areas

like Walnut Hill and

Kinmundy on the landfill, the Board failed to acknowledge testimony

that a) Industrial

is the only existing facility disposing of the

Centralia area general refuse

(A—R 130, C—62) and b) there is no

other existing site able to “pick up the slack”

(C—R 59,

60, 62~

65)*, which the citizens acknowledged this under cross—questioning

when giving sworn testimony at the second County hearing (C-R

70—1101.

Lack of detail in discussing transportation costs to

alternate sites is not an important component of this case, where

the basic assertion is that there are no alternate sites with

sufficient capacity to take the 85

of Industrials’s volume

coming from the Centralia area,

In the prior case quoted by the

Board,

there were a number of alternate sites

(Board Opinion p.

7).

Since Industrial handled 100

of the Centralia

area general

refuse, which was quantified (A—R 12), it logically follows that

*prior!s assertions were not based only on hearsay, but on

having driven by and seen the places.”

59-243

---

the

general

refuse

waste

production

of the Centrlia area was

known

The

issue then becomes how to consider other “waste

disposal capabilities”.

The testimony and admissions

in this

record show

that

on~.ytwo ~‘options”regarding waste disposal

capabilities

for

the Centralia area’s general refuse were pre-

sented,

both of which we believe were unacceptable “options”

to consider unde.

riteriori #1:

Option

i.,

A landfill or landfills that may come about in the

futures particularly

a Tri~Couritylandfill at a different

location

and

wit~ha different operator,

and;

Option

2,.

Use

as

a

non-regional

landfill

of

the

replacement

40

acre

landfill

(25

acres

for

actual

operation)

for

which

Industrial

is

seeking

SB

172

approval.

After the County’s

first

denial,

Industrial

sought

and

received

a

development

permit

from

the

Agency

without

an

SB

172

approval,

thus

allow—

ing

the

use

of the

landfill

only

as

a

non-regional

facility,

i.e.

for waste coming

only

from

the

unincorporated

area

of

Marion

County.

Industrial

testified

that,

if the landfill,

because

of delay in, or

lack

of,

SB

172

approval,

could

not

operate

as

a

full

regional

pollution

control

facility,

that it

could

be

used

to

lengthen

the

life

of

the

present

facility by

identifying

and

separating

out

the

waste

from

unincorporated

areas

in the County

for disposal only at the non—regional facility.

The existing facility, under this arrangement, might be kept open

for seven to nine years rather than somewhere between one and

four years~.

These

options are discussed below..

OPTION

I

Here ~t should be pointed out

that Industrial

filed its

application on July 19,

1993..

In its original October 1983

denial,

the County inserted the words “urgently” and “at this

time”

to the statutory language of Criterion

#1..

When the County

again denied approval after

a hearing on remand caused through no

fault of the applicant,

the County again included the disclaimer

that the proposed site was not necessary “at this time,” dropping

the word ~urgently~

The County obviously gave meaning to these

words,

The Applicant had argued the discrepancies after the

first hearing..

We fear that the Board,

by noting but not

addressing the use of these words, may have left the impression

that it had no problem with the probable context in which the

County was using them,

In refusing to approve Industrial,

the County obviously did

not wane to preclude the opportunity to approve an alternate

facility at another location

in the near future.

The Board

should have made clear that,

if such was the County’s intention,

this is an unacceptable consideration in an SB172 proceeding

(as

59-244

---

—3—

it

similarly

held

on

Criteria

#2).

See,

39.2(f)

precludes

the

County

from

directly

or

indirectly

applying

local

zoning

and

land

use

requirements,

The

suitability

of

the

site

location

must go up or down on its own merits within the confines of the

SB 172 provisions, not within

a comprehensive planning framework.

Mr.

Prior,

operator of Industrial, himself pinpointed the issue

of speculative disposal capabilities at the second hearing when

he stated that at the present time there was no place now for

incorporated and unincorporated Centralia to take their trash,

but he didn’t know if there “would be

(another site in

one year,

two years or three years down the road”.

(C-R 62.)

When this

Board and the Appellate Courts,

(and particularly the Third

District,)

addressed the availability of alternate waste disposal

capabilities in the context of “necessary”,

we and they did not

include prospective

sites that are a

non-existent

“gleam in the

eye.”

Waste Mgt, of

Ill.,

Inc.

v.

PCB et

a.,

No.

3—83—0325 and

3—83—0339, Cons., 3rd Dist, Mar, 9, 1983

(see eap. slip op at p.

4—6), and Waste Mgt. of Ill.,

Inc.

V.

PCB et al.,

No, 83—166,

2nd

Dist., June 4,

1984,

Criteria

#1 does not give local government

a right to stall around waiting for the “best” or “most favored”

applicant, any more than it provides for a right of the applicant

to stay in business.

We read the statute as providing that the

first applicant satisfying all criteria

is entitled to approval.

OPTION

II

The Board, in upholding the County on Criterion *1 strongly

relied upon the extended life of the existing site resulting from

Industrial’s jury—rigged two site disposal pattern.

(Op. p.

6)

We do not believe this was a proper reliance for a number of

interrelated reasons:

1.

Restriction of use of the 40 acre site to “non—regional”

waste

was

not a voluntary decision by Industrial.

It was

instead

a

defensive

decision,

to

protect

Industrial’s

interests

while

coping

with

the

SB

172

process

and sub-

sequent Agency permitting,

a process which this Board

knows can take as long or longer than the remaining life

of its existing

site..

Industrial’s actions were against

its interests in getting SB 172 approval,

and,

so,

in a

certain sense,

Industrial

graphically

demonstrated

its belief

that

a

facility was necessary.

2.

The

Board

should

continue

to

focus

only

on

the

single

site

for

which

regional

pollution

control

status

is

sought,

not

on a tandem

arrangement.

The

Board

earlier

asserted

that

it

would

not

consider

applicants’

arguments

for

site

necessity

that bootstrapped

need

for an

expanded

site

off

need

for

an

existing site,

and

it

should

similarly

not

consider

the

interdependent

arrangement

here,

3.

Non~regionai

sites

are

not

a

class

that

is

included

in

the

SB

172

approval

process.

To

evaluate

the

statutorily

limited

59-245

---

service

areas of non—regional

sites when considering the

“area intended to be served” by the various classes of

regional

sites perverts the SB

172 process and sets un-

fortunate precedent..

Are existing compost

piles to be

considered?

On—site facilities?

4.

Since the Board has relied on waste

separation by point of

origin to extend to seven to nine years the life of

a site

that is “the only game in town”, and

supported the notion

that the time left is too long to demonstrate “necessary”,

how

and when can Industrial, or any other applicant for that

matter, successfully demonstrate “necessary”?

When has the

“at this time” period ended?

The Board does not explain why

seven to nine years

is too long,

given

the

lack

of

options

here

and

the

years

it

takes

to

get refuse and special waste

regional

sites

operating

to

serve

the

whole

area.

The

SB

172 process alone can be lengthy.

If

the

County

decision

is appealed up by the applicant or a third party, it can

take

years.

Ironically, given the apparent short—life situation at the

Mt.

Vernon

and

Salem

landfills, even this less—than—precise

record indicates that the outer areas also may

be

at

least

temporarily dependent on whether Industrial can successfully

mix and

match the incoming waste.

Obviously we do not feel that the record in this case is as

deficient as do the majority of our collegues, and certainly as

it relates to the Centralia area,

The evidence is not all

“he

said,

I said,”

as the majority indicated

(see Op., p.

6-7).

The

discrepencies

on the short remaining life of

the

Mt.

Vernon

and

Salem

landfills

were

not

great..

The

inadequate size of the Salem

landfill

was

not

disputed.

Under

the circumstances of this

case,

what

“direct

evidence’I*

does

the

Board

want?

In

prior cases

the

Board

has

accepted

direct “eyeball” estimated—life ranges by people in the business,

and even hearsay estimates from on-site interviews with operators

of other sites,

Life—of--site estimates are by nature educated

guesses, even when there is familiarity with daily activities..

*We

believe the Board should

have

given

greater

weight

to

the

testimony at

the

second

hearing,

as this testimony was sub-

ject to cross-examination, which was

not allowed at the first

hearing.

Notwithstanding

we believe

the

Board

misperceived

the

factual

context

in which

some

statements

were

made.

For

example,

the

Board

gave

broad meaning

to an

opponent’s

statement

that

she

felt

that

the

Mt.

Vernon

landfill

was

a

viable alternative to the

Industrial

facility.

(Op. p.

6)

In fact,

she was only

referring

to the special waste of one company, General Tire,

being driven

in

from

Mr..

Vernon,

(A—R.

106)

59-246

---

Regarding the anticipated Tri~County

site,

the

opponents

and the County Board members wduld have certainly been highly

motivated to dispute Mr.

Prior’s assertion that the Tn-County

site was not underway by providing contrary documentation.

While

Mr.

Prior might have been well advised to be more precise, does

the Board expect

him

to subpoena the City Manager as

a hostile

witness, despite lack of statutory

authority to do so?

Noone,

even the citizens getting data from the Agency, ever mentioned

that a site location had been determined,

let alone that permit

or SB 172 applications were pending.

In fact,

the actively

participating attorney for the citizens spoke of a preference

for

a site located between Centralia and Salem

(C—R 101), leading us

to believe

that

none

has been chosen..

The Board’s acceptance of

the hearsay assertion that the Tn-County site will be ready in

time begs

the question of whether it should even be considered,

as discussed earlier,

in an SB 172 setting.

While Criterion #1 serves to restrict the marketplace,

it

need not he construed so as to,

in effect,

preclude competition,

set up exclusive territories, encourage preferential treatment,

raise

antitrust

questions or

create

a disruptive and chaotic

system of waste management..

Any of these results now exist or

will

occur,

depending on who

“wins..”

This Board, by its action

here,

is countenancing a monopoly

situation

where

only

one

facility will he permitted to operate in any given area.

If

the Legislature intended to restrict competition

to this degree,

it

would have passed legislation which would have established

landfills as public utilities and regulated them as

such,

recognizing their monopoly status~

Finally, regardless of whether this Board

has overturned or

sustained

the decision of

the

local

governing

bodies in SB 172

cases,

it has not,

we believe,

so

narrowly applied the manifest

weight standard or taken such a stringent view of acceptable

evidentiary standards..

In so doing, we believe it has placed a

new

gloss

on such words as “reasonably required”

and

“clearly

evident,

plain

and

indisputable

weight

of

the

evidence”.

We

believe

the

Board

has

set

in

motion

an

unfortunate

and

unnecessary

skewing

of

the

waste

management

program

in

this

state

and,

in

Marion County, has created a monumental

stand—off.

For these reasons we dissent,

~

~.

_____

I,

Dorothy

M..

Gunn, Clerk

of

the

Illinois

Pollution

Control

Board, hereby certify that the above Dissenting Opinion

was

filed

on the ~~4~day

~

~ 1984.

Ith~9i~r~~

Illinois Pollution Control Board

59-247