ILLINOIS POLLUTION CONTROL BOARD
December 15,
1988
ROGER TATE,
LYNETTE
TATE,
)
BARBARA KELLEY AND JOSEPH KELLEY,
)
Petitioners,
)
v.
)
PCB 88—126
MACON COUNTY BOARD AND MACON
)
COUNTY LANDFILL, CORPORATION,
Respondents.
DISSENTING OPINION
(by J. Dumelle; B.
Forcade; and M. Nardulli):
We dissent from the majority and would have reversed Macon
County’s grant of site approval
for the landfill.
These pro-
ceedings were fundamentally unfair to the opponents of the
landfill.
In addition,
the applicant did not carry its burden on
Criteria Nos.
2 and
3.
Adequacy of Request
The regional pollution control site location suitability
process begins at the county board when the applicant files
a
“request”
for site approval.
The issue of how much information
the “request” must contain has been before this Board
since
1984.
Town of
St. Charles,
et al.,
v.
Kane County Board,
et a?.,
PCB 83—228, 83—229,
83—230
(March 21,
1988).
Fundamental
fairness,
the current statutory language,
and present statutory
amendments all demand that the “request” under review here be
deemed inadequate.
Fundamental Fairness
In any legal proceeding
it
is basically fundamental that
parties know of evidence
to be presented in advance
in order that
preparation can be made to
(a)
cross—examine and
(b) present
opposing views.
The applicant filed
a 3—page “request” on January 14,
1988.
It was not accompanied by technical reports.
(Ex. C-68.
Note that the County’s
index
shows
a filing date of January 14,
1988 but the date stamp appears
to be January
4,
1988.)
On April
21,
1988 at hearing the attorney
for the objectors asked for
these materials
in advance but was denied access to them
(R.
149—
163).
94—103
—2—
These technical reports should have been filed with the
“request” on January
14, 1988.
Had
they been,
then the objectors
would have had more than three full months
to study them and to
have their own experts prepared.
This was not done and thus
rendered the proceeding fundamentally unfair.
Present Statutory Language
In addition
to the fundamental unfairness of a “request”
having Only 3 pages,
the present statutory language requires more
information.
Two terms of
relevance are used
in Section 39.2 of
the Environmental Protection Act.
The first
is “request” and the
second
is “written notice of such request.”
Several factors lead
to the conclusion that the General Assembly intended the
“request” to be at least similar to a permit application,
i.e.,
it must contain sufficient information
to support an affirmative
county board
finding:
1.
Section
39.2
requires
the
“notice
of
request
to be
filed with many people and
published;
only one copy of
the “request”
need
be
filed
at
one
location.
This
implies
that
the
“request”
must
be
a
substantially
larger
amount
of
infor-
mation
than
is
contained
in
the
“notice
of request.”
2.
The
“notice
of
request”
must
include:
(a)
name
and
address
of
applicant;
(b)
location of
the proposed site;
(c) nature
and
size
of
the development;
(d)
nature
of
the
activity
proposed;
(e)
probable
life
of
the proposed
activity;
(f)
date
the
“request” will
be submitted;
and
(g)
description
of
the
right
of
persons
to
comment.
Therefore,
the
“request”
must
include
substantially
more
information
than that listed above.
3.
The
copy
of
the
“request”
must
be avail-
able
for
copying
at
the
actual
cost
of
reproduction.
It
seems
unlikely
the
General
Assembly
would worry about exor-
bitant
copy
costs
if
they
intended
a
3
page “request” to satisfy the statute.
These factors alone lead to the conclusion
that the
“request” must contain significantly more information than is
contained
in the “notice of request.”
Here,
the
3 page “request”
filed by Macon County Landfill,
Inc., contains
significantly less
information.
94—104
—3—
In addition, Section 39.2
(c)
requires the applicant
to file
“all documents submitted as
of that date
to the Agency
in
connection with
its application”,
to the county board.
Today,
the majority has held that language to exclude documents already
on file with the Agency pertaining
to existing facilities. We
disagree.
In its request to the county board,
the applicant states the
patently obvious,
“The applicant has not yet made formal
application to the Illinois Environmental Protection Agency
because of the additional expense involved wit~hsuch application
and because the agency will not issue
a permit,
even
if the
application
is otherwise technically sound, until the decision on
site approval has been made by the Macon County Board.”
(Ex.
C
68—69, Paragraph 4). In short,
no prudent applicant submits
information
to the Agency until after siting approval has been
secured.
Thus,
the majority interpretation reduces the statutory
obligation to file Agency submitted data with the county board,
to
a practical nullity.
We would interpret that language to
require submission of all Agency filed
information regarding the
facility.
In this way the General Assembly’s language would be
given effect.
This interpretation is especially appropriate
in
light
of recent amendments
to the Act.
Recent Statutory Amendments
In Public Act’s 85—882 and 85—945,
the General Assembly
amended the landfill siting process
as
it pertains
to information
submittals.
Those amendments to Section 39.2(a) and
(c) make it
clear that the initial submission
to the county board must
contain enough factual information
to demonstrate compliance with
the relevant statutory criteria and that it must include all
information submitted to the Agency pertaining to the proposed
facility (new language underlined):
a.
The
county
board
of
the
county
or
the
governing
body
of
the
municipality,
as
determined by paragraph
(C)
of Section
39
of
this Act,
shall approve
or
disapprove
the request for local siting approval
for
each
new
regional
pollution
control
facility
which
is
subject
to
such
review.
An
applicant
for
local
siting
approval
shall
submit
sufficient details
describing
the
proposed
facility
to
demonstrate
compliance,
and
local
siting
approval
shall
be
granted
only
if
the
proposed
facility
meets
the
following
criteria:
*
*
*
94—105
—4—
c.
An
applicant
shall
file
a
copy
of
its
request,
with
the
county
board
of
the
county
or
the
governing
body
of
the
municipality
in which
the
proposed
site
is
located.
The
request
shall
include
(1)
the
substance
of
the
applicant’s
proposal
and
(2)
all
documents,
if
any,
submitted
as
of
that date
to the Agency
pertaining
to
the
proposed
facility,
except
trade
secrets
as determined under
Section
7..
of
this
Act.
All
such
documents
or other materials on file with
the county board or governing body of the
municipality
shall
be
made available for
public
inspection
at
the
office
of
the
county board
or the governing body of the
municipality
and
may
be
copied
upon
payment
of
the
actual
cost
of
reproduction.
Subsequent statutory amendments may
be used to determine the
General Assembly’s intentions regarding disputed interpretations
of existing language. Container Corporation of America
v.
IEPA,
PCB 87—183, August 18, 1988.
Here,
the subsequent amendment
makes
it clear
to
us that the General Assembly always intended
that the initial submission
to the county board contain enough
information to demonstrate compliance with the statutory
criteria,
and that the submission contain all information
submitted
to the Agency pertaining
to the proposed facility.
The
submission by Macon County Landfill,
Inc.,
clearly was deficient
on both counts.
Criterion No.
2
This criterion refers
to the safety of the site and to the
design proposed
to make
it safe.
No design was presented
(R.
79
in May
18,
1988 hearing).
Furthermore, on May
19,
1988
the
objectors’ witnesses showed that continuous core sampling had
never been done
CR.
19 and 51), that deep borings had not been
done
(R.
27)
and that cation exchange tests had not been done
(R.
30).
On June
2,
1988 a witness testified as to
a large pool of
water
(“...
120 feet long, and 40
to 50 feet wide
...
It’s quite
deep.”)
that had appeared on May
28,
1988
CR.
9—18).
Since
the applicant has not entered design plans
into the
record nothing exists to counter the objectors technical
witnesses.
Even under
a manifest weight legal
test which applies
to this Board’s review of the record before
the county board,
the
applicant must be judged as not meeting
its burden.
There simply
is no
record that the County could have reviewed
in order
to
judge
this site as safely designed.
94—106
—5—
Criterion No.
3
This criterion refers
to the minimization of incompatibility
of the site to the public.
On May
18,
1988 it was shown that
no
plans were filed
on the vertical expansion phase
(R.
79)
and that
there were no plans to screen the higher height
requested.
No
visual screens such as
trees or berms were presented
(R.
86 of
May
18,
1988).
One witness
lives “25
feet” from the site
(R.
58
of May
19,
1988 hearing).
Certainly she should have
some
screening
to mitigate the visual impact
of the new landfill.
As
in Criterion No.
2
the absence
of any plans
to minimize
incompatibility means
that the applicant did not carry its burden
and that the County approval
of the site must
be
reversed.
Conclusion
Because of the fundamentally unfair nature of these
proceedings and the deficient record by the applicant on Criteria
Nos.
2 and 3, we would have reversed the County approval
of this
site.
Bill
‘~F~rcadé
~
Board Member
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby
certify t~atthe abo~ Dissenting Opinion was
submitted
on
the
,~,?
~
day
of
4Z~~
~
,
1988.
~
727.
/~i~
,~
Dorothy
M.,~3unn,Clerk
Illinois
Pollution
Control
Board
Board
Member.•
94—107