ILLINOIS POLLUTION CONTROL BOARD
October 10,
1991
RICHARD WORTHEN, CLARENCE BOHM,
)
HARRY
PARKER, GEORGE ARNOLD,
CHARLES CRISWELL, THOMAS GIBSON,
CITY OF EDWARDSVILLE, CITY OF
TROY, VILLAGE OF MARYVILLE,
VILLAGE OF GLEN CARBON,
SAVE ALL
FARivILAND
AND
ENVIRONMENTAL RESOURCES,
and
MADISON COUNTY CONSERVATION
)
ALLIANCE
PCB 91—106
Petitioners,
)
(Landfill Siting
)
Review)
v.
VILLAGE OF ROXANA and
LAIDLAW WASTE SYSTEMS
(MADISON),
)
INC.
Respondents.
DISSENTING OPINION
(by J.D. Dumelle):
There are three main issues in this case on which
I dissent
from the majority.
The first issue was that of fundamental fairness.
Landfill
siting
cases
usually
produce
high
citizen
participation
and
comment.
It
is
inherent
in such a proceeding that citizens must
be given ample time in which to voice their concerns
if fairness
is to exist.
Ample time was not given in the instant case.
The applicants
had the better part of three
full days in which to put on their
case
(with cross-examination by the opponents,
of course) but the
public had less than an hour to voice its concerns.
The hearings for the applicant were on April
8,
10, and 11 and
generated 650 pages of transcript.
The public comment hearing on
April 15 had citizens limited to five minutes each.
Only 37 pages
of transcript were then generated.
That hearing ran from 7:10 p.m.
until
8:03
p.m.
or
53 minutes
in
all.
The
limiting of public
comments to five minutes each was obviously fundamentally unfair.
The second issue was that of Criterion No.
1 relating to the
need for the landfill.
The Appellate Court has given this Board
guidance in judging this Criterion.
In a recently received opinion the Appellate Court stated:
With
respect
to
the
requirement
of
showing
126—467
that
the
new
landfill
is
necessary
to
accommodate the waste needs of the area
it
is
intended to serve, the applicant need not show
absolute
necessity.
However,
the
applicant
must demonstrate
an urgent
need
for the new
facility as well as the reasonable convenience
of establishing a new or expanding an existing
landfill.
(Waste
Management
of
Illinois
v.
Pollution Control Board
(1988), 175 Ill.App.3d
1023,
1031,
530 N.E.2d
682,
689).
(Emphasis
added).
Horace File,
et al.
v.
D
& L Landfill,
Inc., Bond County Board of
Supervisors and Illinois Pollution Control
Board,
No.
5-90—0630,
Slip.
Op.
at 14—15
(5th Dist., Oct.
3,
1991).
Note
the key
phrase
of
“urgent
need”.
Some
25
years
of
capacity in Madison County (R.1l2) and 41 years of capacity in St.
Clair
County
are
said
to
exist.
How
then
is
“urgent
need”
satisfied?
The applicant in this proceeding has limited its service area
to
Madison,
St.
Clair,
and
Monroe
counties.
(Note:
Monroe
County’s solid waste output
is said to be quite small compared to
the other two counties.)
Since it has limited its service area the
applicant then must show an
“urgent need”
in spite
of
existing
capacity.
To argue that the importation of refuse from the
St.
Louis area or elsewhere
(New Jersey and New York perhaps?)
makes
the
landfill urgently
needed
is
to destroy any meaning
to
the
Criterion.
Any applicant anywhere can raise the specter of refuse
imports to satisfy Criterion No.
1.
The General Assembly meant the
need criterion to be met as reasonable people would evaluate it.
The third issue is one of extreme importance to Illinois and
is one of first impression.
It is that of Criterion No.
8
(Section
39.2 of the Environmental Protection Act) relating to county solid
waste management plans.
It reads:
local siting approval shall be granted only
if the proposed facility meets the following
criteria:
8.
if
the
facility
is
to be
located
in
a
county where
the county board has adopted
a
solid waste management plan,
the facility
is
consistent with that plan.
There
are
obviously
two
elements to
the
determination
of
adherence to Criterion No.
8.
One element is the adoption by the
Madison
County
(where
Roxana
is
located)
of
a
solid
waste
management plan.
The second element is consistency of the facility
with the plan.
In
this proceeding,
Roxana,
in
its May
20,
1991
adopted
126—468
report of Hearing Committee stated in “h”:
The drafts of the Madison County Solid Waste
Management Plan, as presented by the evidence,
documents and testimony,
are considered as if
such plan
is
in
full
force
and
effect;
the
facility is consistent with such plan.
(p.3)
Since the decision maker,
the Village of Roxana,
has deemed
the Madison County solid waste management plan to be in full force
and effect there
is no
issue on this point.
Roxana has asked
to
be judged
on this Criterion on the second point only, namely, the
consistency issue.
The testimony of Michael
Coulson,
who worked
on the solid
waste management plan as manager of environmental planning for the
East-West Gateway Coordinating Council,
is exactly on point.
His
testimony,
repeated several
times,
is that the plan’s
intent was
that no new landfills be sited for a three year period.
See the
April
11,
1991 hearing
R.
558—617
but especially
R.
562—564,
R.
576—577, and R.
591—593.
The language of the landfill prohibition
is on p.
78 of Exhibit 82.
The third paragraph on this page is the
operative language and must be read with Mr.
Coulson’s testimony
in mind.
The General Assembly has required solid waste management plans
from all of Illinois’
102 counties.
In its wisdom it has required
that proposed new landfills or any other facilities be consistent
with those plans.
Obviously a new landfill, as here proposed, does
not square with
a 3-year ban on all new landfills.
If
solid waste planning
is to mean anything in Illinois
it
must be followed once a county has enacted such a plan.
To allow
this landfill
in the face of the plan’s ban is to render all solid
waste plans required to be devised by 102 counties capable of being
breached at any time by any village or city.
The plan requirement
in the statute then becomes
meaningless.
The General Assembly
would
have
enacted
a
nullity
and
this
is
not
a
reasonable
construction.
For these reasons,
I dissent.
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board
hereby
certify
that
the
above
Di~s~JLtingOpinion
was
submitted on the
_____________
day of
________________,
1991.
~
~h,
~
Dorothy M. 4~inn, Clerk
Illinois P~llutionControl Board
126—469
D.
Dumelle, ~P.E.
rd Member
& Former Chairman