ILLINOIS
POLLUTION
CONTROL
BOARD
February 22,
1984
~STE
MANAGEMENT
OF
ILLINOIS
Petitioner~
v.
)
PCB
82—55
BOARD
OF SUPERVISORS OF
TAZEWELL
COUNTY,
Respondent.
ORDER OF
THE
BOARD
(J.
Anderson):
This
matter
comes
before the
Board
on
the
January
10,
1984
conditional
remand
by
the
Supreme Court in the
case
City
of East
Peoria,_Illinois
et
al.
v.
Illinois
Pollution
Control
Board,
et
al.
(Waste Management of Illinois,
Inc.,
appellant)
No.
59110.
That
case involves an appeal
from a decision of the Third District
Appellate Court
in
~
fEst
Peoria,
lUinois
et a?.
v.
Illinois
Pollution Control Board,
et al.,
117 Ill,
App.
3d 673
(1983),
reversing the Board~sAugust
5,
1982 Opinion and Order
in PCB 82-55.
In that Order,
the Board had reversed the decision of the Tazewell
County Board denying
site location suitability approval,
pursuant to
Section 39.2 of the Environmental Protection Act
(Act)
Ill.
Rev.
Stat.
ch.
111½,
par.
1039,2,
for a proposed new regional pollution
control facility to be operated by Waste Management.
This action has been remanded
to the Board by the Supreme
Court in order to allow the Board to review a settlement agreement
proposed by Waste Management,
the Tazewell County Board,
and the
City of East
Peoria.
In
its remand order,
the Supreme Court dis-
missed the case without prejudice to reinstatement of an appeal
within 90 days.
The parties filed their Joint Motion To
Approve
Settlement Agreement and to Enter Order Granting Site Location
Suitability Approval with the Board on January
11,
1984.
In their factual
stipulation,
the parties
recite,
inter
alia,
that they wish to settle this action because
the currently operat-
ing Tazewell County
landfill will reach capacity in one year, the
proposed expansion facility
is necessary
to serve the municipal
waste
needs of the area served by the existing facility,
and that
Waste Management wishes to begin development of the
expansion
facility immediately
(~JI 20—24,
p.
6—7).
56-211
The proposed settlement was “expressly
conditioned upon,
and
effective only with approval thereof
in
all respects
of the PCB
(sic)”
(p.
7).
At its Meeting on February
9,
1983,
the Board
discussed
a draft Order rejecting this
settlement.
This lead to
the parties~ filing, on February 15,
1984,
of
a
Joint Motion to
Schedule Settlement Conference,
Or,
In
The
Alternative, To
Approve
The Settlement Agreement By Striking
Or Modifying The
Objectionable Provisions,
This later motion asserts that
“The existing Tazewell County Landfill
has
a
remaining life
of approximately
4—½
months based
upon current receipts
without seriously interfering with
the development of the
expansion site,
The public health,
safety and welfare
requires that
a settlement he promptly effectuated to insure
that the solid waste disposal system in
the Tn-County Area
of
Tazewell, Peoria,
and Woodford
Counties
be promptly
effectuated to insure that the solid
waste disposal
system
in the Tri~CountyArea will continue without
disruption.
The parties are willing to modify or amend the Settlement as
might he deemed necessary
to comply with the requirements of
the Board or of the Act.
However,
settlement
of a
landfill
siting case before the Board is a matter
of first impression
and the parties cannot proceed further
with the instant
settlement in the absence of guidance
or direction from the
Board.”
(Joint Motion to Schedule, ¶6,
8,
p.
3)
The Board declines to schedule a settlement
conference.
Pursuant to Section
5 of the Act,
the Board
speaks only through
Orders adopted by a majority of its members,
duly adopted at open
meetings.
Even
if the Act could be read as
providing for
a
settlement conference of the sort requested,
the
Board
would
question the seemliness of such a procedure.
Prior
to discussion of the individual
components
of
the
proposed settlement,
a brief review of the history
of this action
is
in order.
Tazewell County denied site location
suitability
approval
on
the
grounds that “the site a) was not necessary
to accomodate
disposal
needs
for waste generated and coming
from outside the
State
of Illinois
Criterion
1,
b)
that the
facility is not so
designed,
located,
and proposed to be operated so that the public
health,
safety and welfare will be protected
inasmuch
as
the
applicant is authorized to dispose of special
waste
Criterion
2;
and c)
the facility is not so located as to minimize
incompatibility with the character of the
surrounding area and
minimize the effect on the value of surrounding properties in
that
one residential property immediately
adjacent and abutting
56-212
—3—
the
property
exists
Criterion
3.
(Opinion,
PCB 82—55,
p.
4)
However,
in
the
event
o~ reversal
of
its
denial,
Tazewell
requested
the Board
to
impose certain
conditions.
In
reviewing
the
decision,
the
Board
found
that
the
County
would
have
considered
Criterion
I
satisfied
by
inclusion
of
the
condition
to
buy
certain
property
as
requested
by
the
County,
and
that
Criterion
3 dId
not
give
the
County
“authority
to
deny
approval
solely
based on its
desire
to prohibit
out-of—state
waste”,
“even
apart
from probable conflicts with the
Commerce
Clause
of
the
Constitution
of
the
United
States’~ (Id,
p.
7-8).
The bulk of
the
Board~sdiscussion
revolved
around
“the
public
health,
safety,
and welfare”
Criterion
2,
Based
on a comment
made
by
the
sponsor
of
SB 172 that
local
authorities
“are
not
to
make
technical
decisions
as
to
the
suitability
of
the
site,
rather
that
power
still
lies
in
the
Environmental
Protection
Agency”,
the
Board,
over
one
dissent,
found
that
there
“was
no
intent
to give the
local
authorities
concurrent
jurisdiction
with
the Agency to
review
highly technical details
of
the
landfill
design
and
construction”
(Id.
at
7).
The
Board
therefore
did
not
include
the
“highly technical”
conditions
contained
in
subparagraphs
a-f
of
Condition
2
as requested
by the
County
Board
(which,
as will
he
discussed,
are
again
presented
here verbatim).
The
Third
District
Appellate
Court
reversed
the Board’s
decision
and
remanded
it,
for
reasons
related
to
Criterion
2.
The
Court
found
that
the
Board
“erred
in
its
conclusion
that
the
County
Board had
no jurisdiction
to
consider
the
public health
ramifications of the proposed landfill~s
design”.
In the Court’s
opinion
this resulted in Board review
of the
record denovo,
instead oi
Board application of
a
manifest
weight of the evidence
standard.
The cause was remanded
for
reconsideration
in light of
the
latter standard,
In considering
this stipulation,
the
Board must initially
note that,
as a matter of good
government and
in the public
interest,
even
if
the conditions
of this
settlement were
otherwise acceptable,
the Board would
not
favor
settlement
of
this
action
insofar
as
it frustrates
early judicial
review
of
the
Criterion
2
issue
by
the
Supreme
Court.
In
1982-1983,
the Board
rendered
decisions
in
9
site
location
suitability
approval
cases
most
of
which
involved
criterion
2.
Several
more
of
these actions
are
on the Board’s 1984 docket,
In the only other
decided Criterion
2
case,
the Second Dis-
trict
Appellate Court’s discussion of
the issue
was limited to a
single sentence
“We
see no
reason
to depart
from the decision in
the City of East Peoria case
and
will adhere to
it”,
c~2~
Lake
v.
IPCBet
al.,
No.
83—3,
December 12,
1983
(slip op.
at
T~T~WKiJet~eBoard will,
of course, conform
to the mandates of
the
Appellate Courts
in this matter,
it
respectfully maintains
its
disagreement.
The rationale for this
disagreement
was
more
56-213
fully expressed
in Brown~~-Ferris Industries
of
Ill.
,Inc.
v.
Lake Coun~
dof
rvisors,
PCB ~2-101,
December
2,
1982,
~àn
Th
this
actlon,*
The earliest possible
judicial review of
the criterion
2 issue by the Supreme Court
issue will obviously
assist
the Board in its deliberations,
More
importantly
however,
it
will provide guidance
to the citis
and
counties
who
must
implement Section 39.2, many
of
which
have
already
expended
thousands of dollars
in an attempt to make
“highly technical”
decisions.
~eiflc
Provisions of
th
i
sSettlement
Several terms of
this settlement
proposal are unacceptable
to the Board,
Paragraph
5 of the settlement contains,
save one,
the same
conditions
which
were reviewed by the Board
in its prior Opinion
in
this case,
As
to
subparagraphs a—f specifying
construction
details,
the
Board objects
to these
conditions.
The Board notes
that the Agency had issued
a development
permit for the proposed
expansion facility,
on
the
strength of
the Board’s August
5,
1982
Order
(Exhibit 1),
Without resort to the
documents on which
permit
issuance
is based,
the Board could
not determine whether
the County’s conditions would conflict with
Agency permit
conditions.
*In
that case,
the
Board stated:
“The Board accordingly reaffirms its Waste
Management find-
ing
that there
is
a separation of review
criteria between the
Agency and local authorities,
The Agency,
with its broad—based
staff
and research
experience and
capabilities,
continues
to
have
administrative jurisdiction over the
detailed,
specific, uniform
“environmental” specifications of a landfill’s
construction,
waste
disposal
procedures,
and the like;
pollution events
result-
ing from faulty design or operation can easily
cross
the
bound-
aries of the unit
of
local government having site
location
approval
authority.
It
is
given to the
municipal and county
authorities
to review,
and base its decision
on, matters of more
traditionally “local” concerns raised by
potential conversion of
a site
from one
use to another;
these include
odor,
noise and
pest nuisances,
road maintenance and cleaning,
increased call on
police and fire departments,
visual
aesthetics,
and
so on.
This
is not to
say that both the Agency and the
County cannot
focus
on
a similar subject matter,
but for different
reasons.
For example,
the Agency’s interest in a final
cover designed to
prevent a “bathtub”
effect and the County’s interest
in a final
planting cover designed for visual aesthetics
emanate
from
different jurisdictional responsibilities,
the
former
to
protect
the
State’s
waters—-which
do
not
respect
local
boundaries——and
the
latter
to
prepare
for,
say,
ultimate
recreational
uses——which
do
respect
local
boundaries,
(footnote
continued
on
next
page)
56-214
Subparagraph g,
the insurance conditon,
is
a
condition
which
the Second District Appellate Court has held
to be beyond the
power
of a County
to impose
pursuant to Section
39.2
in
Coun~
of Lake v.
Illinois Pollution Control
Board, et
al.
No.
83—3,
December 12,
1983, sup
op.
at
p.
23,
The same
rationale would
apply to
the performance bond required
in Paragraph
7
(p.
10-il).
Subparagraph h provides that
no
out—of-state
waste
he
accepted
at
the
site,
As the Board noted
in its
original
Opinion
(p.
8)
it
doubts whether such an exclusion would
be
any
less
repugnant
to
the
Commerce
Clause of the United
States
Consitution
than
an
attempt by
Illinois
to
ban
out-of state nuclear
waste.
The Board
is not
inclined to authorize the County to
impose indirectly,
by
private
agreement,
a condition which
it
has
no
authority
to impose
directly.
Paragraph
6,
concerning
a
disposal
ratio of liquid to solid
waste,
does
not
even
refer
to
the
proposed
site,
but
instead
relates
to
the
existing
landfill,
over
which
the Board has no
jurisdiction.
The
paragraph
provides
that
the
stated ratio takes
precedence
over
any
Agency
policy
to
the
contrary.
This
condition
upon
another
facility
most
clearly
invades
the
Agency’s
sole
authority
to
issue
permits, Landfill. Inc.,_v.PCB,
74
Ill.
2d
541
(1978),
and cannot
be
accepted
by
the
Board
Paragraph
9
(p.
10)
provides
that
the
stipulation
may
he
from
time
to
time
modified
upon
agreement
of
the
parties,
while
paragraph
4
provides
that
special
waste
may
he
accepted
only
upon
express
written approval
of
the
City
and
County.
Both
are
(footnote continued from
preceding
page)
Also,
regardless
of
the
quality
and quantity of
local
staffs,
to
construe
SB
172
as
giving
counties
and
municipalities
the power over regional facilities
to
co—regulate
in technical
areas,
especially
as
related
to
the
Agency’s
permit
purview,
is
to
assure chaos.
It
is easy
to visualize the
consequences
of
counties,
municipalities
and
the state collectively
dictating
conditions for,
say,
the proper placement,
depth,
numbers,
use
of,
capping
etc.
of testing and monitoring
wells,
And to expect
the Agency
to
later “adjust” county
technical
conditons
that
are
incompatible with the Agency’s view
of
the
proper and safe use of
testing and monitoring probes is to ignore the
fact
that,
if
the
Agency does so,
it can
be contravening the
County approval upon
which the Agency’s power
to
issue the
permit
is derived.
And
after the
County’s
120 day
decision period
is
up,
there
is no
“going hack” for
fine—tuning.
The County’s
site location suitability
approval
is a power
which
~ecedes
the Agency’s power to issue a
permit,
and
is
not
a
substitute for
it or a site management
overlay upon it.
However,
SB 172
places the County and
its citizens
in a
strengthened and
better informed position to effectively
seek sanctions against a
landfill operator who affronts the sensibilities
of the person in
the surrounding areas,”
(slip op.
at 10)
56-215
—6—
unacceptable
for multiple reasons,
The
Board cannot accept an
agreement
which
can
be
changed
in
its
entirety
once the Board
accepts
it.
This
brings
up
a
related
problem,
that
of
resolution
of
conflicts
in
interpretation
of
this
settlement,
e.g. can the
City
and
County
impose
yet
more
conditions
as
part
of
a
special
waste
authorization?
The
Second
District
Appellate
Court in
~
at
p.
21,
has
stated
that
siting location
approval
conditions
are
enforceable
before
the
Board.
This
settlement,
open—ended
in
a
manner
which
the
Board
believes would
be
impermissible
in
a
County
decision
pursuant
to Section 39.2,
would
promise
to
embroil
the
Board
in
confiicL
resolution
for
years
to come,
Again,
and
in summary, this
stipulation
and
proposal
for
settlement
is
rejected,
IT
IS
SO
ORDERED.
Board Members J,D, Dumelle,
B,
Forcade
and J. Marlin concurred.
I,
Christan L,
Moffett, Clerk of
the Illinois Pollution
Control
Board,
hereby
certify
that
the
above
Opinion and Order
was
adopted
on
the
~.1~day
~
1984
by
a
vote
of~~O.
~hrc~nL.Moffei~t,cler’
Illinois
Pollution
Control
Board
56-216