ILLINOIS POLLUTION CONTROL BOARD

September

20,

1985

N~CHENRYCOUNTY LANDFILL,

INC.,

)

and Illinois Corporation,

Petitioner,

v.

)

PCB85—56

COUNTY BOARD OF MCHENRY

CoUNTY,

ILLINOIS,

Respondent,

and

ARTHUR T, MCINTOSH

& CO.,

)

VILLAGE OF LAKEWOOD, VILLAGE

)

OF HUNTLEY, HUNTLEY FIRE

)

PROTECTION DISTRICT,

LANDFILL

EMSRGENCY ACTION COMMITTEE

(LEAC) MCHENRY COUNTY DEFENDERS,

Cross Petitioners—

)

PCB 85—61

Objectors,

)

through

PCB 85—66

v.

)

(consolidated)

)

MCHENRY COUNTY LANDFILL,

INC. AND,

)

COUNTY BOARD OF MCHENRY COUNTY,

)

Respondents.

DISSENTING OPINION

(by

3.

Marlin):

I agree with the majority that this matter should

be

remanded to the County to cure the defect regarding the standard

applied

in reaching

its decision.

To do otherwise would create

a

Situation where

all parties could expend considerable money on an

appeal that would most likely result

in remand on that issue

alone,

leaving substantive matters

for a subsequent costly

appeal.

However,

I strongly disagree with

the majority’s conclusion

that

it

is proper to restrict testimony

at hearing to specific

elements of

the application as originally submitted.

At

a

hearing on ~‘sitelocation suitabilityt’ the objective

is to gather

information for determining

the suitability

of the site.

To bar

testimony of any witness directly bearing on that issue defeats

the purpose

of the hearing.

In this case,

the testimony

in

question was on the hydrogeology

of the site and was clearly

65-495

---

2

relevant to the matter being decided.

The County should have

access to the information of all witnesses

at hearing.

The

majority opinion implies that the applicant’s testimony must stay

within the narrowly defined confines

of the application while

others can raise

any

issue.

Such holdings will prevent

applicants from suggesting ways to improve planned developments

or offering alternatives that the County may accept

as

conditions.

Allowing testimony beyond

the confines of the application

must

not

be confused with allowing major substantive changes

in

the application a~:hearing without

providing the public adequate

time for review.

Fairness demands that an application contain

enough details

to enable

the public

to determine what

is being

proposed and to

intelligently consider its potential impact.

Moreover,

it

is unreasonable to expect that the application

be

so detailed that the location of each building, height of

each,

fence, piece of machinery,

species

of plant,

and number of

employees to be given

in immutable detail.

It

is impossible

to

predict

in advance every item that may cause someone concern or

that may change due

to technical or economic conditions.

In the

instant

case,

for example,

the leaf composting area was proposed

and

in the plan, but the applicant was not certain when or

if

it

would actually be developed~ The siting process must be flexible

enough to accommodate such uncertainties.

It should also be

remembered that

the design in the

application can be changed by conditions placed by the County

Board and by the Agency during

the permit process.

~3uchchanges

are not subject

to additional hearings.

As the landfill siting process becomes

increasingly costly,

time consuming,

and legally complicated,

it

is more difficult for

persons to participate effectively.

Each controversial

case seems

to further complicate the

process with holdings such as the one a

issue here.

~

•

n

C. Marlin

I, Dorothy

M, Gunn,

Clerk of

th

‘~

Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was

submitted on the

~

—

day of

____________________

1985.

Dorothy

M,( Gunn,

Clerk

Illinois Pollution Control Boar

85-498