ILLINOIS POLLUTION CONTROL BOARD
    August
    13,
    1992
    STEPHEN A.
    SMITH, d/b/a ABC
    )
    SANITARY HAULING, JOHN APPL, d/b/a
    )
    APPL SANITARY SERVICE, LAWRENCE
    )
    W. BOLLER II, d/b/a AREA GARBAGE
    )
    SERVICE, CHARLES
    H. MILLER, d/b/a
    )
    C.H. MILLER SANITARY, CHRIS
    )
    JOHNSON,
    d/b/a CHRIS’S SERVICE CO.,
    )
    EDDIE L. COOK,
    SR.,
    d/b/a COOK’S
    )
    SANITARY HAULING, DON CORY,
    d/b/a
    )
    CORY SANITARY HAULING, RONALD
    E.
    )
    HAYDEN, d/b/a HAYDEN
    SANITARY
    SERVICE,
    )
    GORDON FICKLIN,
    d/b/a ILLINI SANITARY
    )
    SERVICE,
    CHRIS YAGER, d/b/a KLEAN-WAY
    DISPOSAL,. GEORGE McLAUGHLIN,
    d/b/a
    )
    McLAUGHLIN
    SANITARY,
    CHERYL
    MANUEL,
    )
    d/b/a
    ROLLAWAY
    WASTE,
    RONALD
    W.
    MANUEL,
    )
    PCB
    92-55
    d/b/a
    RON
    MANUEL
    SANITARY,
    RUSSELL
    )
    (Landfill
    Siting
    SHAFFER, d/b/a SHAFFER SANITARY CO.,
    )
    Review)
    WILLIAM C.
    UDEN, d/b/a UDEN
    & SONS
    SANITARY HAULING,
    and WILLIS SANITARY
    )
    HAULING,
    INC.,
    )
    )
    Petitioners,
    )
    v.
    CITY OF CHAMPAIGN,
    ILLINOIS
    )
    INTERGOVERNMENTAL SOLID WASTE DISPOSAL
    )
    ASSOCIATION, and
    )
    XL DISPOSAL CORPORATION,
    )
    )
    Respondents.
    CONCURRING OPINION
    (by B.
    Forcade):
    I respectfully concur.
    I agree with most of the opinion,
    but dissent from the portion of the opinion that overturns the
    primary holding of Board of Trustees of Casner Township~
    Jefferson County Illinois; Citizens Against Woodlawn Area
    Landfills;
    Cynthia Carpenter; Ernest Carpenter; Hatie Hall; Byron
    Kirkland; Patricia Kirkland; Peg O’Daniell;
    Ronald O’Daniell;
    Dennis Shrover; and Patricia Shroyer v. County of Jefferson and
    Southern Illinois Landfill Inc.,
    PCB 84—175 and 84—176
    (Cons.)
    (January 10, 1985 and April
    4,
    1985; hereinafter “Casner”).
    0135-0315
    In Casner, the Board held that failure of a local government
    body to make a timely site approval decision would constitute
    approval which makes the record on the individual criteria under
    Section 39.2 of the Act subject to review by this Board under
    Section 40.1.
    Today the majority overrules Casner, holding that
    only the jurisdiction and fundamental fairness of a decision
    below may be reviewed in a default situation.
    I find this
    unacceptable for three reasons.
    My initial concern is that the majority creates for the
    first time an unreviewable site location decision by the local
    government body.
    The statute provides for third party review of
    site approvals.
    Further,
    it provides that inaction shall be
    deemed approval.
    I find the statutory construction that removes
    Board review of the criteria to be strained and unacceptable.
    The statute precludes approval except where all Section 39.2
    criteria have been met.
    There is nothing magic about local
    government approval language.
    This Board has and does review
    local government decisions that say nothing more than the site
    location is approved as having met all criteria.
    If the local
    government fails to make that decision in a timely manner,
    the
    statute makes
    it for them.
    The decision deadline was placed in
    the statute to ensure timely action and timely review,
    not to
    exclude appellate review.
    Several criteria under Section 39.2,
    such as #1,
    #3,
    #6, and #8, play no part in subsequent facility
    permitting review by the Agency.
    If they are not reviewed here,
    they cease to exist.
    Second,
    I find the majority holding to be legally
    insupportable.
    If this decision is unreviewab~e, all of
    it is
    unreviewable.
    Section 40.1 of the Act provides that third
    parties may appeal to this Board for review where,
    “the ~local
    government
    grants approval under Section 39.2 of this Act...”
    The majority seems to be holding that the local government has
    granted approval for purposes of our review regarding
    jurisdiction and fundamental fairness, but not granted approval
    for purposes of reviewing the criteria.
    If the local government
    did not grant approval, then this Board lacks jurisdiction to
    hear any aspect of an appeal.
    If it did grant approval, then we
    have jurisdiction to review all aspects, including the criteria.
    Third,
    I find the majority holding to be illogical and
    unworkable.
    Assume for a moment that some local government
    failed to conduct a fundamentally fair proceeding below.
    Assume
    that they refused to allow cross examination of witnesses,
    refused to allow testimony of landfill opponents, that one of the
    decision makers had an individual pecuniary interest in the
    landfill, or some other significant problem that has been found
    to exist in prior proceedings before this Board.
    What is the
    solution where fundamental fairness does not exist, but,
    as is
    the case here, the local decision maker refuses to render a
    decision within the deadline?
    Is this Board expected to remand
    the proceeding back to the local government so they can default
    0135-0316
    in a fundamentally fair manner?
    In its most absurd
    manifestation, an applicant could produce no evidence at all
    pertaining to any of the criteria, but prevail in an unreviewable
    manner should the local government default.
    I would find the decision below was a statutory approval and
    review it in the normal manner: has the petitioner demonstrated
    that approval on all Section 39.2 criteria was against the
    manifest weight of the evidence in the record below.
    Here most
    of that decision is easy.
    Petitioners devote less than one page
    of double spaced text to token arguments regarding criteria 2-9.
    I would find their case against approval on those criteria fails
    to make a prima facie showing.
    On criterion #1, need,
    their
    arguments are more extensive and persuasive.
    It is a very close
    argument,
    but on balance
    I would find that approval on criterion
    #1
    is not against the manifest weight of the evidence below.
    Accordingly,
    I would affirm.
    Since
    I do not support the majority
    rationale for affirming,
    I concur.
    I, Dorothy N.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby_certify tha
    the above concurring opinion was filed
    on the
    ~‘/~-~
    day of
    .
    ,
    1992.
    D6rothy M. Gin,
    Clerk
    Illinois Pollution Control Board
    0135-0317
    Bill S. Forca~
    Board Member

    Back to top