ILLINOIS POLLUTION CONTROL BOARD
    May 4,
    1995
    MEDICAL DISPOSAL SERVICES,
    )
    INC.,
    Petitioner,
    V.
    )
    PCB 95—75
    PCB 95—76
    ILLINOIS ENVIRONMENTAL
    )
    (Permit Appeals
    -
    Air,
    PROTECTION AGENCY,
    )
    Land) (Consolidated)
    )
    Respondent.
    DISSENTING OPINION
    (by J. Theodore Meyer):
    I respectfully dissent from the majority order
    in this
    matter because
    I believe siting approvals are freely
    transferable.
    Therefore,
    I would have granted petitioner’s
    motion for summary judgment.
    I do not believe Section 39.2(a)
    is the appropriate section
    on which to rule in this case.
    Even if it was, Section 39.2(a)
    as amended only gives a local siting authority the discretion to
    consider the operating experience and history of an applicant.
    In addition, Section 39.2(a) does not delineate prior bad acts as
    a criteria to consider, which seems to be at the heart of today’s
    decision.
    The pertinent section to this case is Section 39(c). Section
    39(c) was not amended and refers only to proof of location
    approval, not applicant or facility approval.
    (415 ILCS
    5/39(c)).
    Thus,
    I believe previous Board cases which hold that
    siting approval is location—specific,
    and therefore a
    transferable instrument,
    is still good law.
    (~
    Christian
    County Landfill.
    Inc.
    v. Christian County Board, PCB 89-92
    (1989); Concerned Citizens Group.
    et al.
    v. County of Marion and
    I.S., Inc., PCB 85—97
    (1985).
    In Christian County Landfill, the Board rejected the
    county’s placement of a subject condition on a siting approval
    which required any buyer or subsequent owner of the site to
    obtain another siting approval.
    (PCB 89-92).
    The majority in
    today’s opinion narrowly construed Christian County Landfill to
    be applicable only to those sites which have already received
    permits,
    and thus distinguishable from the instant matter.
    I
    find no such restriction in the Christian County Landfill
    opinion.
    Indeed,
    in that case, the Board pointed out that
    Section 39.2 authorizes the local siting authority to grant
    siting approval “only if the proposed facility meets the criteria
    set forth therein”, and that “njowhere
    in the criteria
    is there
    any reference to future transfer of ownership of the proposed
    site.”
    (See Christian County Landfill at 7,8.)
    2
    The Board then interpreted the silence in Section 39.2 on
    this issue to mean “an intent by the General Assembly to limit
    the authority of a local unit of government only to reviewing the
    merits of the initial application.”
    (See Christian County
    Landfill at 8.)
    Thus,
    a local government’s siting authority is
    exhausted after it determines the criteria have been met, and the
    proper safeguard for reviewing any operational aspects of the
    facility will be provided by the Agency.
    (~~)
    Therefore,
    “future transfer” must mean any transfer made after the siting
    approval has been determined by the local authority,
    including
    transfer of property with local siting approval and pending
    permit applications.
    To construe it any other way is to “create
    havoc in the state’s system of waste disposal”, exactly the
    situation the Board was trying to avoid.
    (~~)
    In Concerned Citizens Group, the Board found that the
    transfer of a local siting approval to a third party did not
    deprive the local siting authority or the public of fundamental
    fairness in reviewing the suitability of the transferee.
    (PCB
    85—97).
    Since both cases treat the siting approval process as
    site—specific, and therefore transferable,
    I see no demonstrated
    reason to supplant our previous decisions.
    The idea that a site-specific approval is transferable is
    well—grounded in the principle that an owner has the unrestricted
    right to transfer his property,
    including any covenants,
    easements and permits that run with the land.
    73 C.J.S. Property
    §33.
    Illinois zoning law reflects this principle,
    where good
    faith reliance upon a building permit,
    or the probability of its
    issuance, results in a vested property right
    in the intended use
    of that property.
    (See Village of Palatine v. LaSalle National
    Bank,
    112 Il1.App.3d 885, 445 N.E.2d
    277
    (1st Dist.
    1983)).
    Further,
    since a siting approval acts like a permit in that
    it is a required step in the construction of a pollution control
    facility,
    it should be treated as
    a permit and held to the
    principle that,
    “unless a specific completion time is required,
    most permits exist until the project for which they were issued
    is completed.”
    (See In Re Island Club Marina,
    Ltd.,
    38 B.R. 847
    at 851
    (Bankr.Ill.
    1984); McQuillan, The Law of Municipal
    Corporations, §25.152
    (3rd Ed.
    1983).
    The majority’s attempt to
    consider a siting approval as anything but a permit is misguided,
    especially since it used Section 39, titled “Permits; procedures”
    as the basis for its reasoning.
    Other areas of law such as bankruptcy, tax, corporations and
    patent
    law, treat permits as assets that are transferable, even
    if the instrument is pending.
    (See C.J.S. Bankr §106
    (“p)roperty
    is generally included in the estate notwithstanding
    the fact that it is intangible,... contingent,...or that it
    exists by the grace of the government”);
    In re Island Marina,
    Ltd.,
    83 B.R.
    847(Chapter 11 debtor’s pre-petition building
    3
    permits were property of the estate); Kenvon v. Automatic
    Instrument Co., 160 F.2d 878
    (1947) (an assignment of patent is
    not invalidated because invention is assigned before the patent
    issues).
    The majority’s concern that a company could attempt to
    bypass the local siting authority’s scrutiny is a possibility;
    however,
    I see many more unfavorable probabilities from today’s
    decision,
    including both of the estate and shareholder scenarios
    presented by petitioner.
    (See petitioner’s Memorandum in Support
    of Motion for Summary Judgment, p.13)
    For example,
    if a
    partnership obtains siting approval, but then dissolves due to a
    partner’s death or withdrawal, the remaining partner will have to
    reapply for siting approval only because a new partnership or
    other entity had to be formed.
    One can imagine similar results
    for a corporation which,
    due to merger, consolidation or
    acquisition, changes its name and assets, but remains largely the
    same entity which originally applied for and received siting
    approval.
    Acquiring a bankrupt company’s assets would become
    problematic where all assets are purchased with the intent of
    continuing the construction of the same facility on the same
    location, but suddenly minus the siting approval.
    This decision also could hamstring a company’s ability to
    obtain financing for a pollution control facility.
    If a
    financial institution cannot be assured that siting approval will
    remain effective for a certain property, then it will view the
    investment as pure speculation.
    At best, the property owner
    could only seek financing once air and land permits were in hand,
    a situation which could cripple a landowner due to substantial
    costs incurred between siting approval and permit issuances.
    on
    these legal and practical grounds,
    I find that siting approval is
    site—specific,
    and therefore transferable.
    For these reasons,
    I respectfully dissent.
    a.
    ~~e~eyer
    Board Member
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereb~,certifythat the above dissenting opinion was filed
    on the
    /~‘~ day of
    _______________,
    1995.
    Do~othyM.
    G~inn, Clerk
    Illinois PoWLution Control Board

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