ILLINOiS POLLUTION CON~LRC’LBOAJtD

August

15,

1985

M.L.G.

 INVESTMENTS,

 INC., and

UiiITEIJ

 BA1~KOF

ILLINGIES,

Petitioners,

v.

)

 PCB 85—6U

ILLiNOIS ENVIRONMENTAL

PROThCTCCN

 AGENCY,

Respondent.

DISSENTING

OPINION

 (by 3. Theodore Meyer):

I dissent from the majority opinion adopted

 in this matter

 my fellow Board Members.

 A brief

 history

of

 the law

concerning local approval

 of landfill

 siting decisions

is

in

oroer.

 Prior

 to the enactment of Sec~ion39(c)

of

 the Illinois

Environmental Protection Act,

 (Ill.

 Rev.

 Stat.

 1985,

ch.

 1111/2,

par.

 1039(c)),

 the landfill

 siting approval process

 in Illinois

was

 in a complete state of disarray.

In

 1976,

 the Illinois

Supreme Court decided that by enacting the Environmental

Protection Act

 (“Act”),

 the state had pre—empted

 local government

trom

using

its

 zoning authority to prevent the siting

of

landfills within

 its boundaries.

 Carison

 v. Village of horth,

 Ill.2d 406, 343 N.E.2d

493

 (1976).

 Local government was

in

arms over

 its ouster from

 the siting process.

In

 a subsequent

decision the

 court found that home rule

 units did retain power

to

regulate the siting of landfills.

 County

 of Cook

v.

John Sexton

Contractors Co.,

75

 111.2nd 494, 389 N.E.2d

553

 (1979).

 This

created

 a schism:

 while home rule units could continue

to

prohibit landfills within their boundaries,

 non—home rule

 units

were required

 to accept

 the siting decisions of the Illinois

Environmental Protection Agency (“Agency”) without opportunity

for any local

 input.

 response, the Illinois General Assembly enacted Section

39(c)

of

 the Act

 in order

 to give all localities some input

 into

siting decisions.

 Essentially,

 Section

 39(c) granted

 a portion

 the state’s power over siting decisions

 to local units

of

government

by permitting them to

 review

 the site suitability

of

a

“new

 regional pollution control facility” based

 on six criteria

delineated

 in Section 39.2.

 These

 six criteria were

 to apply

state—wide

 and were

 to be

 the sole criteria used

 by local

g’vernment

 in judging

 the merits

of

 a location.

 In today’s

decision,

 the Board majority has erroneously

 found

 that

 a change

 the final

 contours of

 a sanitary landfill constitutes

a

 “new”

regional pollution control facility necessitating

 a local siting

he~iring

under

 Section 39.2.

65-271

—2—

The majority arrives

 at this determination by deferring

to

the Antioch decision and by citing

 the need for administrative

$bability and convenience.

 Additionally,

 the majority reasons

that

 its holding

is

 “highly compatable

sic

 with Section 39.2

criteria”.

Op.

at

8.

 The majority then reviews the six criteria

and infers that the legislature must have intended to include

vertical

 expansion in the siting process because “n)ot

 only can

these factors

 be impacted by vertical expansion,

 but such

expansion could potentially have much greater

 impact than areal

expansion;

 an increase of volume by vertical expansion could well

have more

 effect than areal expansion by one acre”.

Ia.

As

 a member

 of the General Assembly and Chairman of the

House

Energy and Environmental Committee during enactment of this

legislation,

 I must refute this contention.

 The majority’s

reference

 to “expansion by one acre”

 is taken from a remark made

by me

 as sponsor

 of the motion

 to adopt

 the governor’s amendatory

veto.

The

majority mistakenly relies upon this remark

to

demonstrate

 that the legislature

 intended Section

 39(c)

 to apply

to vertical expansions, when

 in fact

 it was my and the

legislature’s intent

 and understanding that the area of expansion

beyond

 the boundary refers only to surface area and not volume.

Thus,

 only those expansions that would alter

 the physical

boundaries

 as determined

 by the parcel’s legal description

 were

intended to be encompassed.

 I believe this legislative

 intent

is

clearly conveyed by the

 use of the words

 “area” and “boundary”.

To assert that changes

 in volume were

to

 be encompassed by these

two terms

is

 to defy common English usage.

Moreover,

 the majority has

 ignored the fundamental

distinction between what concerns were

 to be addressed by

localities and what was

 intended to be

 reserved to the State.

Strong policy reasons require that approval

 or disapproval of

vertical expansions

 be the exclusive province of

 the Agency.

This

Board has consistently held

 that local authorities do not

have the power

 to consider technical aspects

 of landfill

design.

 See haste Management

v.

 County Board

 of hill Counti,

52

PCE

23

 (Aprfl

7,

 1983); Browning Ferris Industries

v.

 Lake County

Board

 of Supervisors,

 50 PBC

61

 (December

 2, 1982) Waste

Management of

 Illinois

 v. Tazewell County,

 47 PCB 485

 (August

5,

1982).

 Technical matters of design are beyond

 local government’s

expertise and require sole state jurisdiction

 to assure adequate

and

consistent state—wide standards.

 Questions of engineering

design such as

 the height, depth,

 and volume of

 a landfill

clearly constitute such technical aspects dedicated solely

to

Agency expertise.

 Although the majority assures

 us that its

~:Lndingdoes not require that the Section 39.2 procedures be

utilized

for

 “every proposal

 to alter

 the contours of

a

landfill”,

 no adequate definition

 is given

 for what changes

in

shape

 will trigger

 the approval process.

Op.

at

8.

 There

are

multitude of situations

 in which additional or different space

may

 be occupied above or below

 the ground surface and thus,

qualify as “vertical

 expansion”:

 berms,

 trenches,

 elevation

countours,

 buildings and equipment.

 To allow counties and

65-272

—3—

municipalities the power

 to co—regulate

 in this area

 “is

to

assure chaos”.

 Browning Ferris Industries,

 supra at

70.

I also question the majority’s wisdom

 in following

the

Antioch decision despite

 their conclusion that we are not bound

by

it;

 nevertheless,

 the majority has determined

 that Antioch ann

Agency acquiescence in Antioch’s outcome dictate

 that this “area

of law

 is now settled”.

Op.

at

8.

I disagree.

 First,

 I believe the Board should

 not surrender

jurisdiction over

 an important environmental matter such as this

to

 a court

 of co—equal jurisdiction when

 are under

no

obligation

 to do

so.

 Second,

 I question the wisdom of abiding

 unreported decision which was

 issued without opinion and find

it somewhat startling that

 a one—page order could settle an

entire area of

 law.

 Finally,

 the majority

 itself

 has provided

persuasive argument for rejecting Antioch

 in this quote

 from the

Illinois Supreme Court:

 “fWhere

it

 is clear that

 the court has

made

a

mistake,

 it will not decline

 to correct it,

 although

it

may have been reasserted

and

 acquiesced

 in for

 a long number

of years

.“

Op.

at

6

 (quoting Marathon Petroleum

v.

Briceland,

75

 Iii.

 App. 3d

 189, 394 N.E.2d

44

 (1979)

 (quoting

Neff

v,

 George,

364

 Iii.

 306,

 4 N,E.2d 388

 (1936)).

Finally, without reiterating

 the arguments made before

the

Antioch court,

 I wish to endorse the position as

 then articulated

by the Agency

 and the Attorney General

 as fully supported by

sound logic

 and case law.

 See Pet.

 Brief at

3.

Thus,

for

 the foregoing reasons,

 I dissent.

Theodore Meyer

~ard

 Member

I, Dorothy

M.

 Gunn, Clerk

 of the Illinois Pollution Control

Board,

 her~.eby certify that the above Dissenting Opinion was filed

on

 the/7’-’~- day of

~

 1985.

Dorothy M.~Gunn,

 Clerk

Illinois Pollution Control Board

65-273