ILLINOiS POLLUTION CONTROL BOARD

December

6,

1989

METROPOLITAN WASTE SYSTEMS,

INC.,

SPICER,

INC.

and

SPICER PROPERTIES,

INC.,

Petitioners,

v.

)

PCB 89—121

CITY OF

MARSEILLES,

Respondent.

SUPPLEMENTAL OPINION

(by J.

Anderson and

J. Marlin)

On December

6,

:989,

the Board adopted,

by separate vote,

an

Opinion and Order affirming

the July

76,

1989 decision cf the

City

of Marseilles

(“City”) denyinq siting location suitability

approval

for

a new regional poilution control facility

*~

Metropolitan Waste Systems

:nc.

(“ApDlicants”).

Preceding this

vote,

the Board also had voted separately

on

the language

addressing each criterion

in the draft Opinion.

For different

reasons,

the necessary four votes

on Criterion No.

1 were not

forthcoming.

The portion of

the Board’s Opinion relating

to

Criterion No.

states:

Six

members

of

the

Boa:d

were

present

at

the

December

6,

1989

meeting

at

which decision

in

this

matter

was

statutorily

required

to

be

made.

Section

5

of

the Act provides

that

“4

votes

shall

be

required

for

any

final

determination

by

the

Board.”

The

draft

Opinion

discussed

at

the

meeting

failed

to

pass,

the

Board

being

“deadlocked”

at

a

3-3

vote.

As

a

statutory

majority

of

4

votes

could not be mustered

for any written Opinion,

there

is

no

Opinion

of

the

Board

as

to

the

Criterion No.

1

issue

in this case.

We wish

to supplement

the record with our views

on Criterion No.

1.

First,

we aaree with Board Member Nardulli’s supplemental

Opinion insofar as

it

states that

the la::guage

in the draft

Opinion regarding Criter:on No.

1

snoulo. have been included as

appropriate and as

not reversing any precedent

in

the Board’s

opinion

in Fairview Area Citizens Task Force

v.

Village

of

Fairview, PCB 89—33.

11”~41

---

—2—

Second,

we would have

reversed the City of Marseilles’

holding that the applicant had failed

to meet Criterion No.

1.

Regarding the draft

language issue,

we would add the

following observations

to those of

Board Member Nardulli.

There

is nothing

in Section

39.2

of the Environmental

Protection Act that allows

a city or

county

to unilaterally amend

an application,

which

is,

in effect,

what the City would have

done

in recasting

the intended service area

in order

to support

a

denial.

The applicant

is the only person, pursuant

to th~second

paragraph

of Section 39.2(e), who can change the scope

of an

application,

and even then can do so only once.

The first

paragraph

of Section 39.2(e) only allows the decisionmaker

to

impose conditions as part of the

p~yal of the application.

It

is one thing

to weigh

the record,

including

the

application;

it

is another

thing

to,

in effect,

expunge those

parts of

the record that

a decisionmaker doesn’t want

to consider

at

all.

Here,

it

is argued

that,

if

two distant

counties

in the

intended service area were removed,

then the City

could easily

deny

on Criterion No.

1,

What

is

to stop

a decisionmaker from

picking and choosing those elements of

an application

it wants

to

ignore

in any of the other criteria

if,

by their

inclusion,

thE

decisionmaker would

be hard put

to deny.

We appreciate

that

a city or county

in their traditional

role as legislative policymakers would naturally focus

on the

needs of

their nearby citizens;

however,

in an

SB 172 setting,

the decisionmakers are placed

in a non—traditional,

quasi—

judicial role as regional decisionmakers,

a role that restricts

their ability to view the criteria from

a local policymaking

perspective.

Regarding Criterion No.

1,

we

do not believe that the City

can refuse to consider the intended service area as proposed any

more than

it can refuse

to consider

the location of the facility

as proposed because

it would have preferred that

it

be located

elsewhere.

We note that, were this

a proposed hazardous waste

facility,

its intended service area would likely be

far reaching,

extending

into other states.

In any event,

we believe

that,

absent

a legislative amendment,

it

is

the applicant

that defines

the intended service area.

We certainly did not,

in voting for the Fairview Opinion,

construe the

anguage,

in the context

of that Opinion, as setting

the precedent advocated

by Board Members Dumelle,

Forcade and

Flemal

in their Supplemental Opinion,

nor do we recall any

discussion at

that

time as to the precedential intent

now

~uV0C~

~

Regarding the City’s negative finding on Criterion No.

,

and assuming that

the City cannot refuse

to consider distant

portions

of the service area,

we find no support

in the record,

106—42

---

—3—

on a manifest weight basis,

to affirm the City’s determination.

The remaining life of the facilities

in question,

as testified

to

by the applicant, was essentially uncontroverted.

Given the

realistic lead time that now exists for getting site

hydrogeological analysis, design,

etc.

completed, getting through

the SB 172 process-appeals and all—and completing the permitting

process, and the time

it takes

to develop the facility, we

believe that the limited life expectancy of the existing

facilities

in the intended service area amply demonstrated

that

the facility was necessary,

and cannot find any support

in the

record

for

the County reasonably concluding otherwise.

In this

day and age,

twice as

long, as the

4 1/2 years projected

is

arguably insufficient lead time to get the first cubic yard of

solid waste disposed of.

Even the Objectors implicitly

recognized

that

a negative finding on Criterion No.

1 rested on a

redrawing

of the service area.

~/

~

_____________

Ao’an

G. Anderson

,4óhn

C. Marlin

Board Member

~hairman

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

BOe~

,

r

~et~

ily

that

e ~

Sp~e~~t~

~

~:

entered on the

/7~

day of

~

,

1990.

Dorothy M//Gunn, Clerk

Illinois7ollution Control Board

ir)(,.-43