ILLINOIS POLLUTION CONTROL BOARD
April
6, 1989
WASTE MANAGEMENT OF ILLINOIS, INC.,
Petitioner,
)
V.
)
PCB 88—190
LAKE COUNTY BOARD.
)
Respondent.
SUPPLEMENTAL STATEMENT (by B. Forcade, M. Nardulli, and J.D.
Dumelle):
We note our concern with a portion of the recent decision of
the Second District in Waste Management of Illinois v. The
Pollution Control Board and Lake County Board, 175 Iii. App. 3d
1023, 530 N.T~.2d682 (2d Dist. 1988). A portion of that decision
states that this Board must enunciate a review of each challenged
statutory criterion in a proceeding such as this one. We must
state that we respectfully disagree with the Second District on
this issue, and will urgently pursue modification through all
available avenues.
We note that today’s opinion constitutes the forty—seventh
landfill siting decision rendered by this Board. Each of those
decisions represents an accommodation between two opposing
forces. The first is the extremely short time frame allowed for
Board decisionmaking on records that may easily run several
thousand pages of transcripts (and twice that number of pages of
exhibits). The second is the ability, within the statutory to
time constraints, of four or more Board members to reach
agreement on a particular detailed explanation in its opinion of
the controversial and complex issues.
The Board has an obligation to provide on these proceedings
“Orders and determinations,” Ill. Rev. Stat. ch. 111 1/2, par.
1040.1(a) (1988); and referenced par. 1033(a) includes a duty to
provide an opinion stating facts and reasons upon which this
Board relied in reaching its decision. That obligation, however,
flows to “Board” opinions; to the extent that a point of view
does not garner four votes, it is not a “Board” opinion and the
statutory obligation does not apply. On the other hand, almost
all of the landfill s,iting decisions which are appealed to this
Board simply list which criteria the applicant has met or not
mc~L. Those
decisions seldom explain
how or why the lower body
decided
any of the criteria, nor do they explain upon which facts
reliance was placed. Even when they do, a question arises as to
the weight to be given to these explanations.
98—69
—2--
The courts have specifically approved local government
siting decisions that simply inform the applicant which criteria
have been met or not met.* Thus, the Board now must review the
voluminous record on each criterion to determine what the county
could have reasonably relied upon, whether the county in fact did
so or not.
The first articulation
to this Board of the “why and
how” generally appears in the closing briefs, frequently less
than 30 days prior to the statutory deadline for decision. At
that point for the first time the petitioner may explain the
facts and law upon which it relies to argue that the decision
below is incorrect. In reply, for the first time, the respondent
may provide facts and law to support the propriety of the
decision below. Some of these after—the—fact rationalizations
leave much to be desired in both quality and detail, and, indeed,
do little to relieve the Board of the need to scrutinize the
entire record to determine, in a manifest weight setting, on what
the county could have reasonably relied.
This Board explains the why and how of its decision at the
time that decision is rendered. But it must do so only to the
extent that time and circumstances allow and Only to the extent
that a majority of the Board can agree on an outcome and
rationale. The Board believes that, given these realities, it is
far more beneficial to the parties and the courts for the Board
to utilize its limited time to prepare a fully reasoned opinion
on as many criteria as the majority can agree.
*
As stated by the Second District and upheld by the Supreme
Court in reversing the Board on this matter:
Nothing in the statute would require a
detailed examination of each bit of evidence
or a thorough going exposition of the county
board’s mental processes. Rather, the county
board need only indicate which of the
criteria, in its view, have or have not been
met, and this will be sufficient if the record
supports these conclusions so that an adequate
review of the county board’s decision may be
made. The assertion that the county board’s
opinion must state from which of the criteria
the conditions flow finds no basis in the
statute.
E
& E Hauling,
Inc. v. PCB, 116 Iii. 7~pp. 3d
586, 616, 451 N.E.2d 555, 577—78 (2d Dist.
1983), aff’d, 107 Ill. 2d 33, 481 N.E.2d 664
(1985).
98—70
—3--
The court reasoned that the Board’s view would “deny the
parties, and the reviewing court the benefit of the PCB’s
expertise” (Waste Management, 530 N.E.2d at 692). In fact, in
reviewing landfill siting decisions, the Board’s expertise is not
fully utilized to decide the case by reweighing or re—evaluating
the scientific and technical evidence. In landfill siting cases,
the Board acts as an appellate body for review of the local
government’s decision, and as the Second District has held,
review of the local government’s decision by this Board is
according to the manifest weight of the evidence standard. Waste
Management of Illinois, Inc. v. PCB, 513 N.E.2d 592, 160 Ill.
App. 3d 434, appeal denied 517 N.E.2d 1096, 117 Ill. 2d 555 (2d
Dist. 1987), citing, E & E Hauling, Inc. v. Pollution Control
Board, 116 Ill. App. 3d 586, 608, 451 N.E.2d 555 (1983), aff’d
107 Ill. 2d 33, 481 N.E.2d 664 (1985). The Board submits that
under the manifest weight standard of review, with the requisite
deference given to a local government’s determination, utili-
zation of the Board’s own technical expertise is, at best,
severely limited. Therefore, any benefits which a reviewing
court would obtain from a detailed review by this Board are
likewise severely limited.
Today’s Opinion and Order of the Board represents a
rationale upon which a majority of the Board’s members agree.
However, there has been in the past, and there will be in the
future, cases in which there is no four—vote majority for a
particular outcome on a particular criterion. We would hope that
the parties and the reviewing courts would benefit more from full
explanations on which a majority has been able to give thoughtful
consideration than they would from an obligation simply to list
areas of disagreement.
We would urge the Second District to adopt the rule followed
by the Third District
in Waste M~g~~nentof Illinois,
Inc. v.
Illinois Pollution Control Board, 122 Ill. App. 3d 639, 645, 461
N.E.2d 542, 547 (3d Dist. 1984). The Third District simply ruled
that, should there be a reversal on one criterion, the matter
should be remanded the Pollution Control Board for further
BillS. ae, o~td emer
~
chael Nardull
~
Board Mem
J D. Dumelle, Board Member
98—71
—4—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Supplemental Statement was
submitted on the ~ day of ______________________, 1989.
Dorothy M./9’unn, Clerk
Illinois R~LlutionControl Board
98—72