ILLINOIS POLLUTION CONTROL BOARD
    May 19, 1994
    CONCERNED CITIZENS FOR A
    )
    BETTER
    ENVIRONMENT,
    )
    )
    Petitioners,
    )
    v.
    )
    PCB 94—44
    )
    (Landfill Siting Appeal)
    CITY OF
    HAVANA
    and
    )
    SOUTHWEST
    ENERGY
    CORPORATION,
    )
    )
    Respondents.
    CONCURRING OPINION (by J. Theodore Meyer):
    I agree with the majority that, under existing law, the
    applicant’s sponsorship of the tour of the Semass plant was
    fundamentally unfair.
    However,
    I concur to express my continuing
    discomfort with review of the local decision using an
    adjudicatory, rather than a legislative, standard.
    I recognize that the appellate courts have held that the
    local decisionmaking process pursuant to Section 39.2 of the
    Environmental Protection Act (415 ILCS 5/39.2
    (1992)) must be
    reviewed as an adjudicatory process, rather than a legislative or
    rulemaking process.
    (E
    & E Haulina.
    Inc.
    v. Pollution Control
    Board
    (2d Dist.
    1983),
    116 Ill.App.3d 586,
    451 N.E.2d 555, 564—
    566, aff’d in part (1985),
    107 Ill.2d 33,
    481 N.E.2d 664; Tate v.
    Macon County Board
    (4th Dist.
    1989),
    188 Il1.App.3d 994, 544
    N.E.2d 1176.)
    However,
    I believe that the application of
    standards of adjudicatory decisionmaking, rather than legislative
    standards,
    is unfair to local decisionmakers.
    Local elected
    officials are almost always asked to wear a legislative “hat”
    when taking official actions.
    To ask elected officials to put on
    an adjudicatory “hat” and act like judges when reviewing a siting
    application places an unnecessary burden on both the individual
    decisionmaker and on the siting process.
    Furthermore,
    I believe that applying standards of
    adjudicatory decisioninaking to the siting process puts
    unnecessary limits on the information which forms the basis for a
    siting decision.
    For example,
    I believe that touring an
    operating facility, such as the Semass facility, which is similar
    to the proposed facility is one of the best ways for
    decisionmakers to learn about the proposed facility.
    It is
    always easier to understand a process after actually viewing that
    process in operation.
    In sum,
    I recognize that case law developed by the appellate
    court requires the application of adjudicatory standards of due
    process when reviewing the fundamental fairness of a local siting
    proceeding.
    However,
    I believe that the process would function
    2
    more smoothly, and decisions would be based on better
    information,
    if the local siting process were considered a
    legislative function.
    For these reasons,
    I concur.
    J. Th~odoreMeyer
    Board Member
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that
    e above concurring opinion was filed
    on the
    ~‘A-~~
    day of
    _______________,
    1994.
    /
    ~
    Dorothy M.ftunn, Clerk
    Illinois ~llution
    Control Board

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