ILLINOIS
POLLUTION
CONTROL
BOARD
December
5,
1986
WASTE MANAGEMENT OF ILLINOIS,
INC.,
)
a Delaware Corporation,
)
Petitioner,
v.
McHENRY COUNTY BOARD,
)
)
Respondent.
)
PCB 86—109
and
McHENRY COUNTY CONCERNED CITIZENS
AND McHENRY COUNTY DEFENDERS,
Cross—Petitioners,
v.
McUENRY COUNTY BOARD and WASTE
)
MANAGEMENT OF ILLINOIS,
INC.,
)
a Delaware Corporation,
Cross—Respondents.
CONCURRING OPINION
(by 3.
Theodore Meyer):
While
I
concur
in
today’s
result
I
feel
it
necessary
to
file
this
Concurring Opinion since
I strongly disagree with the
Board’s decision
that the McHenry County Board had the authority
to consider
technical details when evaluating Waste Management’s
landfill proposal.
Principally, the Board bases this conclusion
on
a case decided
in
the Third Appellate District, East Peoria v.
Illinois Pollution Control Board,
117
Ill.
App.
3d 673,
72
Ill.
Dec.
682, 452 N.E.
2d 1378,
1382
(3d.
Dist.
1983), which was
subsequently
vacated
in
a
one
sentence
order
without
comment
by
the
Illinois
Supreme
Court
on
its
own
motion.
(No.
59110,
May
Tern,
1984).
Obviously,
this
vacated
decision
cannot
support
the
finding that county boards may consider technical issues whether
or not the reasoning behind
the decision was addressed.
See
Board Opinion
at
7.
Recognizing
this,
the Board cites other
decisions rendered
in
the Second
and Third Districts adopting
the
reasoning of East Peoria and concludes that they continue
to
stand despite their
use
of the East Peoria decision as
underpinning.
However, this rationale fails
to recognize that
the subsequent courts did not conduct independent analyses of the
74-193
—2—
issue, thereby calling into question the solidity of their
“holdings.”
I find it surprising that,
on the basis of such
dubious precedent, the Board
feels bound
to abandon its long-
standing view that technical issues are not
a matter for local
review given
the strong policy reasons repeatedly articulated by
this Board
for holding otherwise.
See, Waste Management of
Illinois,
Inc. v. County Board
of Will County,
52 PCB
23,
PCB 82—
141 (April
7,
1983);
Browning—Ferris
Indus. of
Illinois,
Inc.
v.
Lake County Board,
50 PCB
61,
PCB 82—101
(December
2,
1982);
Waste Management of Illinois,
Inc.
v. Board of Supervisors of
Tazewell Coun~, 47 PCB 485, PCB 82—55
(August
5, 1982).
Moreover, recent authority exists
to support
a Board holding
otherwise.
The most recent decision of the Second District,
which contains McHenry County, clearly stated that “the role of
local entities
is not meant to be unlimited.
.
.
.
We can find
neither
statutory language or
indication of relevant
legislative
intent
to persuade
us that local control should be extended
beyond matters concerning location.”
M.I.G.
Investments,
Inc.
v.
Environmental Protection Agency,
No.
2—85—734,
Slip op. at
11
(2nd Dist. October 15,
1986).
While
the Board attempts
to treat
these
statements as dicta,
I do not agree that the court’s
rationale can be
so lightly dismissed.
Rather,
the court’s
finding that local control
extends only to matters concerning
location was central
to
its conclusion that local
site approval
did not pertain
to vertical expansions.
The propriety of
vertical
expansion at a landfill
is
a technical question
to be
evaluated by technical experts: the Agency.
Moreover, the Second District’s finding that
the legislature
intended
to
circumscribe
local
review
to
matters
concerning
location
is supported
by significant policy reasons.
First of
all,
it seems self—evident that Section 39.2 must be read
in
consonance with the Environmental Protection Act’s purpose “to
establish a unified,
state—wide program for environmental
protection
.
.
.
.“
Ill.
Rev. Stat.,
ch.
111 1/2, par.
1002(a)(2)(b)(1985).
To use the Board’s own words, allowing
county boards
to inquire into such matters as landfill design and
construction will result in “total chaos” rather than a unified
program.
Browning—Ferris,
supra at
70.
In addition, allowing
local entities
to duplicate the role of
“technical expert”
intended for the Agency will necessarily both diminish and
complicate the Agency’s duty to administer
a state—wide
program.
This duplicative effort will
result only
in increased
costs
for the applicant, the Agency and the local entity with no
accompanying benefits.
Local entities are already hard—pressed
to perform their
siting obligations
under Section 39.2.
Being composed of lay
people they generally lack the scientific backgrounds necessary
to
adequately evaluate the fine points of landfill design such as
soil permeability and compaction, liner depth, placement
of
74-194
—3—
groundwater monitoring wells,
etc.
The legislature simply never
intended
to open the “can of worms” now made way for by the Board
under today’s opinion.
In fact,
the legislative
intent clearly
demonstrates that the question whether local entities were to
begin performing technical reviews under Section 39.2 was
considered and expressly rejected as
in conflict with the object
of Section 39.2.
To reguote Representative Breslin’s explanation
concerning the limits of local review “local
entities
are not
to make technical decisions as
to
the suitability of the site,
rather that power
still
lies with the Environmental Protection
Agency.”
State
of Illinois,
82nd General Assembly,
House of
Representatives Transcription Debate, June
17,
1982,
at
I
(emphasis added).
To now allow local
review of technical issues
simply negates the separation of functions between the Agency and
local
siting
entities
so
patently
intended
by
the
legislature.
In effect, the Board’s holding today transforms the multitudinous
local siting entities into
a host
of mini—environmental
protection agencies, with all the attendant confusion
in the
state’s environmental program that that course of action
invites.
With this unfortunate result,
I cannot agree.
~
~Theodore
Meyer
Board Member
I,
Dorothy
N.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Concurring Opinion was
submitted on the
‘T~
day of
_________________,
1986.
/L~J
Dorothy
M.
unn,
Clerk
Illinois Pollution Control Board
74.195