• ILLINOIS POLLUTION CONTROL BOARD

November 19, 1987

CITY OF ROCKFORD,

a Municipal Corporation,

Petitioner,

)

PCB 87—92

WINNEBAGO COUNTY BOARD,

Respondent.

DISSENTING OPINION (by .3. Theodore Meyer):

I dissent from the majority opinion adopted in this matter.

The City of Rockford, the petitioner in the instant case, is

the second largest city in Illinois, and is one of the few cities

in the nation which is actively trying to solve its solid waste

problem. Rockford has been trying intermittently to site a

municipal landfill at this location since the early l970s. As

the majority states, the city purchased the site in 1970, with

the final transfer of the deed in 1977. (Majority opinion, p.

10.) The site was the subject of litigation, and in 1972, the

Illinois Supreme Court held that Winnebago County could not use a

zoning ordinance to prohibit development of a landfill if a

permit was obtained by the Illinois Environmental Protection

Agency (Agency). O’Connor v. City of Rockford, 52 Ill. 2d 360,

288 N.E.2d 432 (1972). The city obtained an Agency permit to

develop a landfill on the site in 1972, but the permit was

allowed to lapse. Now Rockford is again attempting to site a

landfill on this parcel, which they have owned for seventeen

years. I 

would point 

out that the large majority of the 151

homes in the area were built after the city purchased this land,

and that the O’Connor litigation was well—publicized in the

Rockford area.

Historically, the disposal of solid waste has been a local

governmental function. In 1970, the legislature enacted the

Environmental Protection Act (Act), Ill. Rev. Stat. 1985, ch.

1111/2, par. 1001 et seq., and provided for state involvement in

the solid waste disposal process. The Act provides that no

sanitary landfill is to be operated without a permit from the

Agency. Ill. Rev. Stat. 1985, ch. llll/2, pars. 1020, 1021,

1039. The O’Connor decision, supra, subsequently held that the

Act clearly expressed a legislative intent that landfill

operations be conducted only upon the issuance of an Agency

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permit. In 1976, the court held that a non—home rule

municipality could not use a local “environmental protection

ordinance”, which included the requirement of compliance with

zoning ordinances, 

to regulate the siting and operation of

landfills. Carison v. Village 

Worth, 62 Ill. 2d 406, 343

N.E.2d 493 (1976). Thus, local governments were pre—empted from

any participation in the landfill siting process.

This pre—emption of local authority generated much

protest. In response to the public outcry over this issue, the

Illinois General Assembly enacted Senate Bill 172. This bill

created Section 39.2 of the Act, which allows local units of

government to review the site suitability of a new “regional

pollution control facility” based on only six criteria set forth

in that section. I was a member of the Illinois House of

Representatives and was intimately involved in the creation of

Section 39.2 as Chairman of the House Energy and Environment

Committee and a member of the Conference Committee. The essence

of Section 39.2 is the six criteria, which are to be used

statewide in considering site applications. This provision for

uniform criteria was intended to further the Act’s purpose of

establishing a “unified, statewide program 

. . .

to restore,

protect, and enhance the quality of the environment 

. . .“.

Ill.

Rev. Stat. 1985, ch. 1111/2, par. 1002.

Instead of working as a uniform program, however, the courts

and this Board have interpreted Section 39.2 in such a manner

that the criteria are applied in any manner a locality feels is

relevant. For example, the courts have held that local

governments may consider technical aspects of landfill design

when considering criterion two. See, e.g., Waste Management of

Illinois, Inc. v. Pollution Control Board, No. 87—0029 (2d Dist.,

September 11, 1987); r4cHenry County Landfill, Inc. v. Illinois

Environmental Protection Agency, 154 Ill. App. 3d 89, 506 N.E.2d

372 (2d Dist. 1987). This has resulted in each locality applying

engineering and technical information in its own way: a

development which is beyond both the expertise of localities and

the intent of the Act.

The forgotten third party in landfill siting is the Illinois

Environmental Protection Agency. In Waste Management, supra, the

appellate court discusses the roles of local government and the

Board, but does not even mention the Agency in its analysis. The

courts entrusted landfill siting and permitting solely to the

Agency between OtConnor and the enactment of Section 39.2, but

now do not even consider the Agency when deciding landfill siting

appeals. I must point out that the Board does not issue

permits. That is the function of the Agency.

Illinois is facing a very serious waste disposal problem. A

recent Agency report states that the average life of remaining

landfill space in the state is only 5.3 years. This problem must

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be dealt with quickly if we are to avoid a true crisis. There is

now a trend towards incineration rather than land disposal, but

this does not solve the problems associated with Section 39.2.

Those who object to proposed landfills near their home or

business will object on the same grounds when the proposed

facility is an incinerator. See Waste Management of Illinois,

Inc. v. Lake County, PCB 87—75. Additionally, incinerator ash

must be landfilled, and there are various unanswered questions

about incinerator emissions. It is now almost impossible for a

unit of local government to approve the siting of a new regional

pollution control facility, regardless of the practical

consequences. Given these political realities, it is imperative

that the six criteria be applied in a uniform manner.

There 

is no question in my 

mind that the county board’s

decision in this case was irrevocably tainted by ex parte

contacts. E & E Hauling, Inc. v. Pollution Control Board, 116

Ill. App. 3d 586, 451 N.E.2d 555 (2d Dist. 1983), aff’d in part

107 Ill 2d 33, 481 N.E.2d 664 (1985). It is foolish and silly to

remand the case to the same county board which made a

fundamentally unfair decision six and a half months ago and

expect the result to be any different this time. A remand does

not cure the fact that the county board decision was a result of

a fundamentally unfair process. (Majority opinion p. 29.)

Additionally, I object to a remand without specific instructions

on what is to occur at the local level. The majority does not

specify if an entire new series of hearings must be held, or

whether a new decision is to be based upon the same record, or

what procedures are to be used on remand.

In sum, this case points out the failure of the legislature,

this Board, the courts, and local government to effectively deal

with the pressing problem of solid waste disposal. The landfill

siting and permitting process worked well when entrusted to the

Agency between 1972 and 1981, but public pressure on state

government was intense. The local site approval process, as set

forth in Section 39.2, has relieved the pressure from the state

and placed it on local 

government. 

The response of local

government has simply been to refuse to allow almost any new

regional pollution control facilities. We must remedy this

situation before our solid waste disposal problem becomes a true

nightmare.

For these reasons, I dissent from the majority opinion. I

would reverse the county board’s decision on procedural grounds.

.3.

Theodore Meyer

Board Member

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify tha the above Dissenting Opinion was filed

on the 

/L/~Z

day of 

_________________,

1987.

Dorothy ~    

Clerk

Illinois Pollution Control Board

83—98