ILLINOIS POLLUTION CONTROL BOARD
October
18,
1989
CHRISTIAN COUNTY LANDFILL,
INC.,
Petitioner,
v.
)
PCB 89—92
CHRISTIAN COUNTY BOARD
Respondent.
RAYMOND T. REOTT,
JENNER
&
BLOCK, APPEARED ON BEHALF OF CHRISTIAN
COUNTY LANDFILL,
INC.,;
and
GREGORY
B.
GRIGSBY, STATE’S ATTORNEY, APPEARED ON BEHALF ON THE
CHRISTIAN COUNTY BOARD.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board upon
a May
24,
1989
Petition for Hearing to Contest Decision of the Christian County
Board, filed by the Petitioner, Christian County Landfill,
Inc.
(“CCL”), pursuant to Section 40.1 of the Environmental Protection
Act
(Ill. Rev.
Stat.
ch.
111—1/2, par l040~1 (1987))
(“Act”).
CCL appeals
the portion of the April
21,
1989 decision of the
Christian County Board which included conditions B—H with
the
Christian County Board’s approval
of CCL’S application for site
location approval for the expansion of its sanitary landfill.
CCL challenges conditions
B,
E,
F,
G, and H as being beyond the
legal power
of
the Christian County Board and as being against
the manifest weight of the evidence and not supported by the
record.
CCL therefore requests that the Board strike the
conditions included in the approval of CCL’s site location.
The Board notes that no issues
relating
to the fundamental
fairness of the procedures
of
the County Board have been
raised.
Based on the record,
the Board finds that the hearing
below was conducted
in a fundamentally fair manner.
For the
reasons discussed below,
the Board finds
that the conditions
attached
to the approval of the Christian County Board
~re not
reasonable and necessary
to accomplish the purposes of Section
39.2 of the Act.
BACKGROUND
On October
27,
1988, CCL submitted its application for
a
proposed expansion of its non—hazardous landfill
in Taylorville,
Illinois.
CCL has been operating
this site since 1978.
In its
11)4
3I~1)
—2—
application, CCL requested an expansion of the vertical and
horizontal area of its already-permitted site to be used for
additional landfill disposal.
On February 7,
1989,
the Christian County Board of
Supervisors (“County Board”) conducted a hearing on the proposed
landfill expansion.
On April
5,
1989,
following the statutory
30—day period for written public comment, the County Board’s
Landfill Siting Committee issued an initial recommendation.
The
Siting Committee recommended approval of the proposed landfill
expansion, along with the adoption of eight conditions labeled
Conditions A—H.
On April
21,
1989,
the County Board adopted a
Resolution granting the siting request set forth in the
application.
The County Board deleted Condition A from the list
of conditions requested by the Siting Committee but did impose
Conditions B—H on the facility.
On May 24,
1989, CCL filed
its petition for
a hearing to
contest the County Board’s decision.
A hearing was held on July
26,
1989.
No members of the public were in attendance with
regard to the issues raised by this appeal.
No additional
evidence was introduced,
and the briefing schedule was set.
CCL
submitted its opening brief on August 16,
1989;
the County
submitted its brief on August
21,
1989;
and CCL submitted its
reply brief on August 29,
1989.
STATUTORY
FRAMEWORK
Requirements for
the siting of new regional pollution
control facilities are specified
in the Act.
Section 39(c)
of
the Act provides that “no permit
for the development
or
construction of a new regional pollution control facility may be
granted by the (Environmental Protection)
Agency unless the
applicant submits proof
to the Agency that the location o~said
facility has been approved by the County Board of the county
if
in an unincorporated area
~k*
in accordance with Section 39.2 of
this Act”.
The applicable criteria set
forth in Section 39.2(a)
are,
in pertinent part:
(a)
The County Board
***
shall approve the site
location suitability for such new regional
pollution control facility only in accordance
with the following criteria:
1.
the facility is necessary to accommodate
the waste needs
of
the area
it
is
intended
to serve;
2.
the facility
is
so designed,
located and
proposed
to be operated that the public
health,
safety and welfare will be
protected;
1fl4
37fl
—3—
3.
the facility
is located so as
to minimize
incompatibility with the character
of the
surrounding area and minimize the effect
on the value of the surrounding property;
4.
the facility
is located outside the
boundary of the 100 year flood plain,
or
the site is
flood—proofed;
5.
the plan of operations
for the facility
is designed to minimize the danger
to the
surrounding area from fire,
spills or
other operational accidents;
6.
the traffic patterns to or from the
facility are
so designed as
to minimize
the impact on existing traffic flows;
7.
if the facility will
be treating, storing
or disposing of hazardous waste, an
emergency response plan exists for the
facility which includes notification,
containment and evacuation procedures to
be used
in case of an accidental release;
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;
and
9.
if the facility will be
located within
a
regulated recharge area,
any applicable
requirements specified by the Board for
such areas have been met.
Section 40.1 of the Act charges this Board with reviewing
whether the CCB’s decision was contrary
to the manifest weight of
the evidence.
E
& E Hauling,
Inc.
v.
Illinois Pollution Control
Board,
116 Ill. App.
3d
586,
451 N.E.2d 555
(2nd Dist.
1983),
aff’d
in part
107 Ill.2d
33,
481 N.E.2d 664
(1985); City of
Pockford v.
IPCB,
125 Ill. App.
3d
384, 386,
465 N.E.2d 996
(1984); Waste Management of
Illinois,
Inc.,
v.
IPCB,
122 Ill.
App.
3d 639,
461 N.E.2d
542
(1984).
The standard of manifest
weight of the evidence
is:
A verdict
is.. .against the manifest weight of
the evidence where
it
is palpably erroneous,
wholly unwarranted, clearly the result of
passion or prejudice,
or appears
to be
arbitrary, unreasonable, and not based upon
the evidence.
A verdict cannot be set aside
1’)4 371
—4—
merely because the jury
(County Board)
could
have drawn different inferences and
conclusions from confll.cting testimony or
because a reviewing court
(IPCB) would have
reached a different conclusion...when
considering whether a verdict was contrary to
the manifest weight
of the evidence, a
reviewing court
(IPCB) must view the evidence
in the light most favorable to the appellee,
Steinberg v.
Petra, 139
Ill. App.
3d
503,
508
(1986)
Consequently,
if after reviewing the record,
this Board
finds that the County Board could have reasonably reached its
conclusion, the County Board’s decision
must
be affirmed.
That
a
different conclusion might also be
reasonable
is
insufficient;
the opposite conclusion must
be evident (see Willowbrcok Motel v.~
IPCB,
135
Ii..
App.
3d
343,
481 N.E.2d 1032
(1985)).
The Board
notes that the County Board approved CCL’s application,
finding
that each of the criterion has been satisfied.
There has been no
appeal of the County’s decision with respect to the criteria.
Thus,
the Board need not address the criteria.
Additionally, the Board must evaluate whether the County
Board’s procedures used
In reaching its decision were
fundamentally fair, pursuant
to Section 40.1 ~f the Act.
CCL
raises no claim that the procedures used by the County Board were
in any manner unfair.
Based on this fact and on an independent
review of the record,
the Board finds that the proceedings before
the Christian County Board were conducted in a fundamentally fair
manner.
The Board will now proceed to a review of
the
conditions.
After determining
in its ~esolution that CCL had satisfied
its burden of proof on the statutory criteria, the County Board
stated:
The Christian County Board places the following
conditions upon the operation of the Christian County
Landfill,
Inc. which are reasonable and necessary to
ensure the operation of
the proposed site will be in
conformance with the criteria previously considered.
The County Board
in placing these conditions upon the
operation of
the Christian County Landfill, Inc.
is
considering
the recommendations and findings of the
Christian County Landfill Siting Committee.
B.
That any buyer or subsequent owner
of the
Christian County Landfill,
Inc. must
request approval by the Christian County
~fl4~-372
—5—
Board
for use of the site involved
in the
present application.
C.
That any buyer
or subsequent
owner
of the
Christian County Landfill,
Inc. operate
the site involved
in the present
application under
the conditions now
being imposed upon the Christian County
Landfill,
Inc.
D.
That the Christian County Landfill,
Inc.
construct fencing and berms,
not remove
any tree lines presently on the site and
care for or replace any tree lines which
are affected or damaged by the use of the
proposed site.
E.
That Christian County refuse haulers be
given priority at the proposed site
for
their refuse
if any daily limit
is
reached provided the applicable
fee
for
disposal
is paid.
Christian County
refuse haulers shall
be defined as any
refuse hauler carrying refuse from or
produced
in Christian County.
F.
That the Christian County Landfill,
Inc.
shall work with the Christian County
Board after
the development of a Solid
Waste Management Plan by the county
to
incorporate the operation at the site
with the plan as adopted.
G.
That the Sheriff
of Christian County,
or
the Christian County Health and Sanitary
Officer
or any designated body authorized
by the Christian County Board shall have
the right
to inspect the premises
or do
testing of or at
the proposed site as is
deemed necessary
to protect the citizens
of Christian County.
H.
That the Christian County Board shall
have the power
to impose those conditions
which are reasonable and necessary
to
ensure
that the operation of the
Christian County Landfill,
Inc.
is
in
accordance with
the criteria set forth
in
Chapter
111—1/2, Section 1039.2 of the
Illinois Revised Statutes.
in!
373
—6—
As previously stated, CCL appeals Conditions
B,
E,
F,
G, and
H.
Apparently,
CCL agrees to abide by
the terms of Conditions C
and D.
As a preliminary matter,
the Board notes
that the
County’s authority to impose conditions upon its local siting
approval
is found in Section 39.2(e) of the Act.
Section 39.2(e)
states
in pertinent part:
Decisions of the county board or governing
body of the municipality are
to be
in writing,
specifying the reasons for the decision, such
reasons to be in conformance with subsection
(a) of this Section.
In granting approval for
a site the county board or governing body of
the municipality may impose such conditions as
may be reasonable and necessary to accomplish
the purposes of this Section and as are not
inconsistent with regulations promulgated by
the Board.
(Emphasis added).
CONTESTED CONDITIONS
Condition B
In Condition B,
the County Board stated that “any buyer or
subsequent owner of the CCL must request approval by the County
Board for use of the site involved
in the present application.”
CCL argues that this condition exceeds the authority of the
County Board and requests that the condition be stricken.
In support of its position, CCL argues that the Board has
already rejected the argument that the local siting authority has
a veto power over subsequent transactions.
CCL cites Concerned
Citizens Group v. County of Marion, PCB 85—97
(Nov.
21,
1985),
for the proposition that the County has no right
to review a
post-approval transfer.
CCL argues that the Agency has exclusive
authority over permits,
including transfers,
and that any
interest which the local siting body might have which conceivably
could be related to the Act’s siting criteria would be fully
protected by the Agency approval required for
the transfer of
a
permit.
Also,
CCL argues that Section 3.47 of
the Act
limits the
circumstances requiring further local approval of an already
approved site, and that because transfer of ownership or
operating rights
is not included
in this Section,
the County has
no authority to impose
it as
a condition.
Finally, CCL argues
that the record does not support the condition.
The County Board asserts that Condition
B
is proper under
Section 39.2(e)
of the Act.
The County argues that in
considering the imposition of
the condition,
the County Board
considered the evidence and testimony offered at the February 7,
1989 hearing concerning the operation of the landfill site by the
present ownership.
From the testimony and evidence provided,
the
—7—
County Board determined
that “the CCL proposed operation of the
site satisfied the criteria
(iii),
(v), and
(vi).”
The County
argues
that:
if the CCL were
to sell its interest
in the
proposed site,
the present approval
of the
site by the County Board could be based on an
operation which no longer
is present at
the
site.
The new owner could expand the
operation at the proposed site.
This expanded
operation could
result
in an operation which
is not
such that the public health,
safety and
welfare are protected,
which causes danger
to
the surrounding area from fire, spills
or
other operational accidents and which causes
a
dangerous change
in the traffic patterns
by
increased truck traffic.
Further,
the County argues that
it does not bar
the transfer
of the site,
but rather
it wishes to ensure that the safety of
the citizens of
the County
is protected.
Although the Board appreciates the County’s concern,
the
Board does not believe that Condition B
is reasonable or
necessary
to accomplish the purposes of
the Act.
As
a
preliminary matter,
the Board believes that the County may have
been operating under a misconception when it gave
as a reason
that the new owner
could expand the operation at
the site which
could threaten the public health and safety.
Section 3.32 of the
Act
(which the Board believes CCL was referring
to rather
than
Section
3.47)
states that the area
of expansion beyond the
boundary
of
a currently permitted regional
pollu.tion control
facility
is a new regional pollution control facility which would
require new siting approval.
If by stating that the new owner
could
not expand the operation at the site the County meant
the
area of the landfill that could be expanded,
the expansion would
require new siting approval whether
or not the condition was
imposed.
Thus,
if this was the County’s concern,
the condition
is not necessary.
If the County’s use of the term “expand”
is not related
to
area but rather
to the method
of
operation of
the site,
the Board
still believes that the condition
is not reasonable or
necessary.
The Board notes
that Section 39.2 authorizes the
county board or governing body of
a municipality to grant local
siting approval only
if the proposed facility meets the criteria
set forth therein.
Criterion 2, which apparently
is the basis
for
this condition,
states
that:
the facility
is so designed, located and
proposed to be operated that
the public
health,
safety and welfare will be protected.
1fl4--375
—8—
The County Board has found that the application as submitted by
CCL satisfies criterion
2 as well as all remaining criteria.
Although Section 39.2(e) permits the county to impose such
conditions
“as may be reasonable and necessary”
to accomplish the
purposes of
that Section,
the conditions must relate to the
Section 39.2(a) criteria.
The Board does not see a relationship
between the criteria and this condition.
First,
the condition addresses a future occurrence which is
not contemplated by any of the criteria.
The criteria,
in
general,
relate to the substantive merits of the existing
application.
The condition,
however,
relates
to a future
transfer
of ownership of
the site in question.
Nowhere in the
criteria is there any reference
to future transfer of ownership
of the proposed site.
The criteria are silent on this issue.
Thus,
there is no articulated purpose in Section 39.2 that
is
being furthered by this condition.
Second,
the Board construes the silence
in Section 39.2 on
this issue as indicative of 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.
Once the county
determines that the criteria have been met and grants its site
location approval,
the county’s authority under Section 39.2
is
exhausted.
The operational aspects of the new regional pollution
control facility will be reviewed by the Agency during the
permitting process to assure compliance with the Act and Board
regulations.
To permit the county board or local unit of
government
to oversee the operations
at this point
in time with
the implication that the county board or local unit of government
possesses ~he authority to divest the new regional pollution
control facility of its siting approval could create havoc
in the
state’s system of waste disposal.
Therefore,
the Board believes
that this condition is not reasonable and necessary to accomplish
the purposes of
Section 39.2 of the Act.
CONDITION E
In Condition E,
the County Board stated that “Christian
County refuse haulers be given priority at the proposed site.. .if
any daily limit
is reached.”
CCL argues that the imposition of
Condition E exceeds the authority of the County Board, and must
therefore be stricken.
In support
of its position, CCL argues
that Condition E was
related to Condition A, which was proposed by the Landfill Siting
Committee but rejected by the County Board.
Condition A
apparently set forth
a specific waste volume
limit
for each
day.
CCL argues that since Condition A was
rejected, there
is no
daily
limit and Condition
B no longer has meaning.
CCL argues
further
that to the extent it may have any meaning,
the condition
is beyond the authority of the County Board and
is not reasonable
i0.4-.37A
—9—
and necessary to implement the criteria
in Section 39.2.
CCL
points out that priority for local
refuse haulers
is not one of
the statutory criteria,
and argues that
it
is not
related
to any
of
the criteria.
Finally, CCL argues that even if Condition E
were properly within the power
of the County Board,
it would run
afoul of the United States Constitution.
CCL cites City of
Philadelphia v. New Jersey,
437 W.S.,
617,
628
(1978),
for the
proposition that limits on the intake of out—of—state waste
violate the Commerce Clause of the United States Constitution.
The County Board asserts that Condition E
is within the
powers given to it
by the legislature when criterion
6
is
considered.
The County recognizes that surplus language relating
to Condition A exists,
and states
that
absent that language the
condition is
a consideration which
is within the power of
the
County Board to impose given the limited evidence offered by CCL
concerning out of county truck traffic.
The county argues
that:
riefuse
haulers within the county would not
necessarily have
to travel long distances
within the county
to
reach the landfill
site.
The largest concentration of residents
is located
in Taylorville, Christian County’s
largest
city.
Truck traffic from this
location especially would have only
a short
distance on Route 104
to travel
to reach the
Christian County Landfill,
Inc.
The Christian
County Landfill,
Inc.
is not required
to take
local refuse at
a reduced
rate.
Rather when
the same applicable fee is paid,
the Christian
County hai~lersare
to be given priority.
The
County argues that this condition is within
the powers given
to
it by the legislature when
criteria vi
is considered.
(County Brief at
6.)
The Board
is not persuaded that this condition is reasonable
or necessary to accomplish the purposes
of Section 39.2.
Criterion
6,
the criterion upon which the County
relies
to
support the condition,
states:
the traffic patterns
to or from the facility
are so designed as to minimize the
impact on
existing
traffic flows.
Compliance with this criterion is basically a question of fact——
either
the traffic patterns are designed
to minimize the impact
on existing traffic flows
or they are not.
The County Board has
found in
its Resolution that they are.
Further, even
if
Condition A had not been rejected by the County Board,
this Board
does not believe that giving priority
to Christian County refuse
haulers would reduce or minimize the impact on existing traffic
1~~!’-377
—10—
flows.
Finally,
the Board notes that this condition appears
somewhat inconsistent with the County Board’s finding on
criterion 1, which states:
the facility
is necessary to accommodate the
waste needs of the area
it
is intended to
serve.
(Emphasis added.)
The Board questions what would be done with the refuse
that
is
intended to be served by the facility but that would not be given
priority under the condition.
The record indicates that the
facility is necessary
to accommodate this refuse as well.
To
give priority to only a portion of the area’s waste needs seems
to imply that the facility is not necessary to accommodate the
needs of the area characterized as non—priority wastes.
As
a
result of all of the above,
the Board finds
that this condition
is not reasonable or necessary to accomplish the purposes of
Section 39.2 of the Act.
The condition is therefore stricken.
Condition F
In Condition F,
the County Board required that the CCL shall
work with the Christian County Board after the development of a
Solid Waste Management Plan by the county to incorporate the
operation at the site with the plan as adopted.
CCL argues that
unless given
a limiting construction, condition F exceeds the
power of the Christian County Board.
As a preliminary matter,
CCL states that it
is willing to
work with the County Board as part of its solid waste planning
effort.
CCL argues that for purposes of this appeal,
however,
Christian County must clarify that the obligation to work with
the Board as set forth in Condition F does
not
in any way
relinquish any rights
that CCL has to challenge the plan itself
in the event
that the County exceeds its authority
in the
planning process.
As long as Condition F
is not considered to be
a waiver of any rights which CCL might have to challenge the
plan,
then CCL has
no objection to Condition F.
Christian County argues that this condition is a “valid
exercise of
its power
under criterion ix of Section 39.2(a)
of
the Environmental Protection Act.”
County Brief
at
7.
The
County states that Condition F indicates
a desire by the County
Board
to conform with any future requirements imposed by the
Illinois Legislature on the smaller populated counties within the
state concerning
the alternatives
to solid waste disposal.
The
County states that the present condition merely requires the
operatiTn of
the landfill
to conform with a plan for solid waste
management which is not
yet
required.
1fl4--37~
—11—
The Board believes that criterion
8
(not criterion
9 as
alleged by the County)
is the criterion upon which
this condition
is based.
Criterion
8 states:
if the facility
is to be located
in the county
where the county board has adopted a solid
waste management plan,
the facility
is
consistent
with
that plan.
The Board believes that this criterion permits the county boards
and governing bodies of municipalities to consider whether the
application demonstrates consistency with an existing, already
adopted solid waste management
plan.
The Board does not believe
that this criterion permits county boards or governing bodies of
municipalities to require consistency with
a solid waste
management plan not yet
in existence.
The Board agrees with CCL
that this condition
is susceptible
to different constructions.
Based on the requirement
that CCL “work with”
the County Board
after development
of a solid waste management plan,
this Board
does not construe the condition as constituting a waiver
on
behalf of CCL of any rights that
it may have
to challenge the
solid waste management plan or
its incorporation into the
operation of the site.
The condition simply requires CCL to work
with the County to make CCL’s operation of its site consistent
with the plan.
As CCL states that
“as
long as Condition F is
not considered
to be a waiver of any rights which
CCL
might have to challenge
the plan, then
CCL
has no objection to Condition F,” the Board
will permit
the condition to stand.
However,
if the County’s
intent
is to coflstrue acceptance of this condition as
a waiver of
any right
to challenge the plan,
then the Board specifically
finds that this condition
is not reasonable as
it goes beyond the
authority of criterion
8 as described above.
CONDITION G
In Condition G,
the County Board stated that the
(County)
shall have the right
to inspect the premises
or do testing of or
at the proposed site as
is deemed necessary to protect the
citizens of Christian County.
CCL challenges Condition G by
arguing that it exceeds the authority of the County Board and
interferes with the regulatory scheme established by the Act
which delegates this type of authority to the Agency.
In support of its position, CCL argues that like any
business, CCL
is subject
to local inspection
if any activity at
the site poses an immediate threat
of harm to
the public.
CCL
argues that if Condition G restates that power,
it
is redundant
and unnecessary.
CCL argues further that
if Condition G purports
to exceed this inherent power,
it
is preempted by the Act.
CCL
states that Section 4(r)
of
the Act allows the Agency to enter
1~437~)
—12—
into written delegation agreements with units of local government
under which the Agency may delegate all or part of its
inspection,
investigation and enforcement
functions.
CCL argues
that pursuant to Section 4(r),
the unit of local government must
enter into a written delegation agreement, which would require
Agency oversight, proper training and a period of concurrent
inspection to ensure that the local authorities properly fulfill
their responsibilities.
In defense of its condition, the County states that
Condition G
is an exercise of
the County’s powers granted under
criteria
2 and
5 of Section 39.2 of
the Act.
The County argues
that Condition G is very similar
in form to
a condition which was
present
in Browning Ferris Industries of
Illinois v.
Lake County,
PCB 82-101
(Dec.
28, 1982).
Moreover, the County argues that its
Condition G
is less obtrusive than
in that case
in that there
is
no special provision for “unannounced inspections”.
In its Brief, CCL responds to the Browning Ferris case,
noting
(1)
that the Board struck the condition,
(2)
that the
Appellate Court
remanded for a re—evaluation of the condition
in
light of the authority of the local government to impose at least
some technical conditions,
(3)
that the Court did not discuss the
Board’s reasoning, and
(4)
that on remand,
the parties settled
the case, and the Board did not reevaluate the inspection
condition.
The Board
is not persuaded that Condition G is reasonable or
necessary to accomplish the purposes of criteria
2 and
5 of
Section 39.2.
The County,
by
its approval, has found that those
criteria have been satisfied by CCL’s application.
The Board
does not interpret those criteria as permitting
the County to
retain oversight and inspection authority after
rendering a
decision on the merits of an application.
The Board agrees with
CCL that the administrative citation process, as set forth
in
Section 4(r),
31.1, and
42 of the Act,
is the sole means
under
the Act by which a County or other
local
unit of government may
obtain inspection authority from the Agency.
Under
the Act,
the
Agency
is endowed with inspection authority and
it alone may
delegate its authority.
The County
is free to seek such a
delegation from the Agency.
Finally,
the County’s reliance on
Browning Ferris
is not persuasive.
When that case was decided,
the administrative citation process was not yet
in existence.
As
a result of all the foregoing,
Condition G is stricken.
CONDITION H
In Condition H,
the County states
that it shall have the
power
to impose
those conditions which are reasonable and
necessary to ensure
that the operation of the CCL
is
in
accordance with the criteria set forth
in Section 39.2 of the
114
~38fl
—13—
Act.
CCL argues that the County exceeded
its authority
is
imposing
this condition.
CCL argues that the County lacks
the legal power
to continue
to promulgate new conditions in the indefinite
future.
CCL
argues that future regulatory authority
is not reasonable or
necessary
to accomplish
the purposes of assuring that the
applicant has demonstrated that the proposed facility
is designed
to meet the statutory criteria.
CCL argues that
in Browning
Ferris, discussed above,
the Board has considered and rejected
post—approval regulatory power.
Also,
CCL argues that such post—
approval authority would interfere with the siting process
established by the Act and with the Agency’s permitting
Drocess.
Fin&lly CCL argues that the condition
is not supported
by the record.
The County states that Condition
H provides the County with
the power
to impose conditions at
a future date.
The County
argues that the bulk of
the criteria deal with the protection of
the citizens from certain dangers
in the operation of
the
landfill
site.
The County argues that the “powers” granted by
the criteria are “continuing powers”.
The County states:
“The County’s job of protecting
the citizens of
Christian County does not end with the approval of
the landfill
site.
The County does not lose
control over the operation of this business within
its borders.
Any interpretation of Section 39.2 of
this Act which limits the powers of
this County to
enforce the criteria of Paragraph
(a)
of Section
39.2 would result in the usurpation of the powers
the County which were present before the siting was
given.
Th-~
County cannot be restricted
in its
power
to protect its citizens from the operations
at the Christian County Landfill,
Inc.
Furthermore,
the Illinois Environmental Protection
Agency
is an inadequate alternative for redress of
grievances of the protection of
its citizens.
The
County cannot and
is not required
to rely on the
Illinois Environmental Protection Agency
to protect
its citizens.
Section 39.2 gives Christian County
the continuing power
to enforce the criteria to
ensure that its citizens are protected from the
operation at
the landfill site.
Any ruling to the
contrary would be an invasion of
the Christian
County’s powers
to control the activities within
its borders which are dangerous to the public
health,
safety and welfare and an improper erosion
of the Christian County’s inherent police powers.
Condition
H
is
a valid exercise
of the
County’s
powers.
The County retains no power
to remove the
il4-~3~i
—14--
landfill siting approval previously granted under
Condition H.
In its reply,
CCL argues that the County confuses its
otherwise existing police powers with the 1imited~statutory power
provided in Section 39.2 to impose conditions on an approved
landfill.
CCL argues that the landfill siting process neither
takes away from nor adds to the otherwise existing police powers
of the County to protect its citizens.
Further, CCL argues that
the County retains any police powers that
it might have to
protect the citizens of the County with regard to activities at
the landfill.
However, the County does not have the power
to
impose additional regulations
later as a
result of the siting
process.
The Board agrees.
The Board believes that Condition H is
not reasonable and necessary to accomplish
the purposes of
Section 39.2 of the Act.
As
a preliminary matter,
the Board
reemphasizes that if the County wishes to maintain oversight over
the landfill’s operations
to ensure the protection of its
citizens, the County may seek Agency delegation under the
administrative citation process discussed above.
Further,
the
Board notes that
if the County believes that the Agency
is an
“inadequate alternative for redress of grievances or the
protection of its citizens”,
the County’s remedy lies in the
General Assembly and/or
in the courts,
not
in Section 39.2 of the
Act.
Section 39.2 affords the County or local unit of government
the power
to approve or disapprove the site location suitability
based upon
a review of the criteria set forth therein.
Once the
county or local unit
of government
renders its decision, the
power
of the county or local unit of government under Section
39.2 of the Act
is exhausted.
To allow the county or local
government
to maintain power
under
Section 39.2 would threaten
the finality of decisions rendered thereunder and could
compromise the Agency’s statutory permitting process.
As a
result, the Board does not believe that Section 39.2 grants
“continuing powers” as the County alleges.
This
is not
to hold,
however,
that the County’s police power
is
in any way diminished
by Section 39,2 of
the Act.
Whatever police powers
the County
may have,
it retains.
However,
the County cannot base such
“continuing powers” on Section 39.2 of the Act.
As a result,
Condition
H is stricken.
In sum,
the Board has today reversed the County’s imposition
of Conditions
B,
E,
F (insofar as this condition was challenged),
G, and H.
The Conditions are no longer part
of the County’s
approval.
This Opinion constitutes
the Board’s findings of
fact and
conclusions of law
in this matter.
ORDER
1fl4- 3~3~
—15—
The April
21, 1989 decision of
the Christian County Board
imposing Conditions B,
E,
G, and H with the approval of Christian
County Landfill,
Inc.’s application for site location suitability
approval
is hereby reversed.
That part
of Condition F that
is
challenged by Christian County Landfill,
Inc.
is ~imi1arily
reversed.
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat. 1985,
ch.
111—1/2, par.
1041,
provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois established filin~requirements.
IT
IS SO ORDERED.
Board Members J. Dumelle and B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
/J’~-
day of
__________________,
1989 by a vote
of
_______.
Dorothy M. ~Qnn,
Clerk
Illinois Pô~ZlutionControl Board
10!
323
