I LLINOIS

POLLUT

ION

CONTROL

BOARD

January

:10,

1985

BOARD

OF

TRUSTEES

OF

CASNER

TOWNSHIP,

JEFFERSON

COUNTY,

ILLINO:S;

CITIZENS

AGAINST

WOODLAWN

AREA

LANDILLS;

CYNTHIA

CARPENTER;

ERNEST

CARPENTER;

HATTIE HALL; BYRON

KIRKLAND;

PATRICIA

KIRKLAND;

PEG

O~DANIELL; RONALD

O~DANIELL;

DENNIS SHROYER; and

PATRICIA

SHROYFR,

~utitionerS,

PCB

84—175

COUNTY

OF

JEFFERSON

and

SOUTHERN

ILLINOIS LANDFILL,

INC.,

Respondents

JOHN

PRIOR,

Petitioner,

PCB 84—176

COUNTY OF

JEFFERSON

and

SOUTHERN

ILLINOIS

LANDFILL,

INC.,

Respondents

CONCURRING

OPINION

(by

Cl,

Ar~t~rsoriand

J.

Marlin):

As an initial

statement,

we

concur

in

denying the Motion to

Dismiss

this third

party

appeal

because

we

support

as liberal

a

construction

as

possible

of

a

statutorily

based

third

party

appeal

right~

We

also

believe

that

the

statutory

interpretation

contained

in

the

Po1lut~on

Control

Board’s

(Board)

opinion

was

the

best

ratlonale

that

could

be

used

to

allow

a

third

party

appeal

in

this

“deemed

approve&

site

location

suitability

situation,

a

situation

resuitinq

from

Jefferson

County’s

(County)

failure

to

take

timely

action

pursuant

to

Section

39,2(e)

of

the

Environmental

Protection

Act

(Act),

Nevertheless,

we

are

troubled

by

the

resultant

skewing

of

the

SB

172

process

at

the

Board~a

hearing,

the

altered

role

of

the

participants,

and

the

awtward

assumptions

the

Board must make

in

its

review

of

the

norn~decisiori

of

the

deadlocked

County

Board.

If

the

Board

i:~

to

review

this

case

as

if

the

County

actually

approved,

t~a

Board

must

assume

that

the

six

criteria

in

Section

39,2(a)

of

Ito

Environmental

Protection

Act

(Act)

have

been

approved,

and

Itat

no

conditions

have

been

set

pursuant

to

---

e

Section 39.2(t) of the Act

earlier holdings, the Board

t

ppl

the rariitest weight

standard to the correctn~_r

P.

,.i..tv’...

‘decision’, which

County ‘decision’ was to

e. P se

~he preporderance of

evidence presented during t c

ou t

s p oceedings.

These

assumptions, however, do

ic’

c.

Trcd

t

other provisions of the

Act applicable to the site Jocat c

a

ta ility process, commonly

referred to as SB 172.

First, Secti

40 ~ b

of

h

Ac

ecusres that the County

be a party co—ret

ndent witi

ti”

pç

i

a

t

ir a third party

appeal, even tho

the deail c ci

ounty canot function in this

role.

Thus,

Sect

sn 40.l(b

~,

i

t.

lie’ to the respondent

County essential,

becomes

-

o

ati e

Next, the Board arguabey

a

c

ditions, as this

implies de novo review con

az~

Sect

4

l(b

.

If so, the

applicant could lose

n a c itori

r

nrc

t

pplicant might

have won if the County

it

d

ot

~ o

U’

ca d had the power to

set, conditions.

Count es

c

no1

use

ten authority to set

conditions to allay concerns

aised at tearing, to allow

favorable decisions and

o ass te erforceability

It

is an

important componen

of

he process

Here

again, another portion

of the statute

becomes

roperati e

•

a

deemed approved’ third

party appeal setting.

~or

e’caTo.Lc

t tie applicant readily

agreed that a condition be added by the County that cured a

problem raised at the

t.

unty lean g

or a particular criterion,

the Board arguably must r

e iga

nsf- t c applicant even though

with the condition the

o

a

‘

F

criterion.

Finally, Sectiot

9

o

unless the applican

.

‘has been approvsc ~y

hj

Section 39.2 of this Ac’

uider

construe this expli

it

g

t

issuance in a ‘deesre

po

The Board provi

~

proceedings, beltev

t at

considering issues

r

f

determination that

‘ts

~-‘

construed so as

nut

u

rights reflects th s belief

the added issues raised

oncir

e toe cy to issue a permit

facility location

in accordance with

irç,

acd~d).

The

Board

a

t~orizing agency

permit

re

whole

process

r”

c.

a

i)1

in

all

its

e.

sary

element

when

rc.

‘rent

Its

r

or

r

the

statute

can

be

S

-

ny

turd

party

appeal

F

•‘o

ng

towever,

we

feel

that

g

ttis

already

complex

SB

172

For these rea°ons,we c

.

S

31

---

3

//

-.

~

Joan G.

Anderson

Ahn~Marlln~~~

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

Board, hereby

certify that the above Concurring

Opinion was

submitted on

th?~

__________

day of

_____________________,

1985.

Dorothy M~Gunn, Clerk

Illinois

Pollution Control Board

62~311