ILLINOIS POLLUTION CONTROL BOARD
    December
    17,
    1987
    CARGILL,
    INC.,
    Petitioner,
    )
    v.
    )
    PCB 87—89
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    DISSENTING OPINION (by J. Theodore Meyer):
    I dissent from the majority opinion adopted
    in this
    matter.
    The majority holds that a permit condition imposed by
    the Illinois Environmental Protection Agency (Agency), requiring
    a 100—foot stack height for
    a liquid waste incinerator, preempts
    a local ordinance which restricts stack height
    to 35 feet.
    I
    cannot agree.
    The majority bases
    its decision on County of Kendall
    v.
    Avery Gravel Co., 101 Ill.
    2d
    428,
    463 N.E.2d 723
    (1984), where
    the Supreme Court of
    Illinois held that
    a county ordinance
    prohibiting
    the crushing,
    washing,
    and screening of limestone at
    the particular location of
    a strip mine was preempted by an
    Agency permit issued
    to the strip mine.
    The Board majority thus
    finds that the ordinance of the Village of Carpentersville, to
    the extent that it imposes
    a 35—foot stack height restriction,
    is
    preempted by the Agency’s permit.
    (Majority opinion at 5.)
    Nowhere, however,
    does the majority ever mention Section 39(c)
    of
    the Environmental Protection ~.ct(Act), which provides,
    in part:
    Except
    for those facilities owned or operated
    by sanitary districts
    .
    .
    •,
    and except for
    new regional pollution control facilities as
    governed by Section 39.2, and except for
    fossil fuel mining facilities,
    the granting of
    a permit under the Act shall
    not relieve the
    applicant from meeting and securing all
    necessary zoning approvals from the unit of
    government having zoning jurisdiction over
    the
    proposed facility.
    Ill.
    Rev. Stat.
    1985,
    ch.
    l1155~ par. 1039(c).
    This section clearly states that with three exceptions,
    the grant
    of an Agency permit does not exempt an applicant from meeting and
    securing
    all necessary zoning approvals.
    Petitioner Cargill,
    84—659
    —
    2—
    Inc.
    does not fall
    under any of these exceptions:
    the facility
    is
    not owned or
    operated by a sanitary district,
    nor
    is
    it
    a new
    regional pollution control facility,
    nor
    is
    it
    a fossil fuel
    mining facility.
    Cargill’s facility is a liquid waste
    incinerator which will dispose of wastes from Cargill’s own
    manufacturing process.
    Since the facility
    is not covered by any
    of the exceptions, the majority’s decision that the Agency permit
    preempts Carpentersville’s ordinance is contrary
    to the clear
    statutory language of the Act.
    I note that in County of Kendall,
    the court rejected the
    county’s argument that the addition
    of Section 39(j)
    to the Act
    indicated that the legislature did not
    intend to supersede local
    zoning control over the operation
    of strip mines.
    Section
    39(j)
    states:
    The issuance under
    the Act of
    a permit to
    engage
    in the surface mining
    of any resources
    other than fossil fuels shall not relieve the
    permittee from its duty to comply with any
    applicable local
    law regulating the
    commencement, location, or
    operation of
    surface mining facilities.
    Ill. Rev. Stat.
    1985,
    ch.
    iLl
    par. 1039(j).
    However, the court’s rejection of the county’s claim was based
    solely on the fact that the legislation could not be given
    retroactive application because of its substantive nature.
    The
    court found that it must base its decision on the law as
    it
    existed at the time the suit was filed, but specifically stated
    that the legislature can enact such laws.
    463 N.E.2d
    723, 727.
    In the instant case, there
    is no such problem with the
    application
    of Section 39(c).
    The relevant portion of
    subsection(c) was effective
    in 1982, while
    the permit which
    is
    the subject
    of this appeal was issued on May 20,
    1987.
    Thus,
    it
    is clear that Section 39(c) applies
    to this case.
    Additionally,
    I must point out that
    in County of Kendall,
    the court relied heavily on three of its prior decisions:
    O’Connor v
    City of Rockford,
    52 Ill.
    2d 360, 288 N.E.2d
    432
    (1972); Carlson
    v. Village of Worth,
    62
    Ill.
    2d
    406, 343 N.E.2d
    (1976);
    and County of Cook
    v
    John Sexton Contractors Co., 75
    Ill.
    2d
    494,
    389 N.E.2d 553
    (1979).
    O’Connor, Carison, and
    County of Cook all involved the attempted application
    of local
    requirements upon sanitary landfills which had obtained Agency
    permits.
    In all three cases, the court held that local
    regulation was preempted by the Act.
    Sanitary landfills are now
    included
    in the category of “regional pollution control
    facilities”
    under Section 3.32 of the Act.
    Ill. Rev. Stat.
    1985.
    ch. l1i~~
    par.
    1003.32.
    As noted
    above,
    regional pollution
    control facilities are excepted from Section
    39(c).
    I believe
    that
    the specific exception in that section for such regional
    84—660
    —3—
    pollution control facilities
    evidences the legislature’s
    agreement with the courts that such facilities are
    to be
    regulated exclusively by the state, except
    as specifically
    provided.
    See Ill.
    Rev. Stat.
    1985,
    ch.
    1111/2, par.
    1039.2.
    In
    other words,
    regulation of regional pollution control facilities
    is separate and distinct from most other environmental regulation
    for purposes of interaction with local
    zoning ordinances.
    Finally,
    I question the Board’s authority to declare
    a local
    ordinance preempted.
    Section 40 of the Act,
    Ill. Rev.
    Stat.
    1985,
    ch.
    1111/2, par.
    1040, provides
    for appeal
    to the Board
    of a
    permit denial
    or grant
    of permit with conditions, but does not
    set forth
    the scope of review.
    It is clear that the Board may
    decide the validity of
    a permit condition,
    but doubtful,
    in my
    mind,
    that the Board is empowered
    to rule upon the interaction of
    a permit condition with a local ordinance.
    I believe
    the better
    cause would be
    to decide the validity of the 100—foot stack
    height condition and leave
    the issue of preemption to
    the courts.
    For these reasons,
    I dissent.
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Dissenting Opinion was filed
    on the
    .ZZ~
    day of
    ~
    ,
    1987.
    Illino
    Po11ut~on Control Board
    84—661

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