ILLINOIS POLLUTION CONTROL

BOARD

February

22,

1984

W~\STEMANAGEMENT

OF ILLINOIS,

)

Petitioner,

v.

)

PCB

82—55

BOARD

OF

SUPERVISORS

OF

TA~EWELL

)

COUNTY,

Respondent.

CONCURRING

OPINION

(by

B.

Forcade,

J. Marlin,

and .J.D.

Dumelie):

While the Board has unanimously re~iectedthe settlement

agreement,

a division exists on the appropriate interpretation of

criterion

2 of Section 39.2

ol the Environmental Protection Act

(“Act”).

Therefore a concurring opinion

is appropriate.

The

clear language of criterion

2 allows local governments

to consider the design,

location, and operational plan of regional

pollution control facilities.

Local governments may reject,

accept,

or impose conditions based on these

“highly technical”

factor’s impact on public health,

safety

and

welfare.

The

majority

of

this Board would negate that clear language,

allowing

local

governments

to

consider

only

visual

aesthetics,

odor,

noise,

and

so

on.

Three

members

of

this

Board

and

the

only

two

appellate

courts

to

consider the

issue

disagree.

The

ma~ority

requests

early

:iudicial

review

of

this

issue

by

the

Supreme

Court.

None

of

the

traditional

reasons

for

Supreme

Court review are asserted,

i.e.,

conflict among the appellate

court opinions.

The sole basis

for that request is that a majority

of

this Board,

an

inferior tribunal,

disagrees with the established

law

in Illinois

as expressed by two separate appe.late

courts.

As

a matter of good government and

in the public

interest,

this

Board’s Opinions should follow the case law in Illinois, not

contest

it.

In an effort to encourage Supreme Court review,

and influence

the decision,

the majority asserts an argument of potential

conflicts between conditions imposed by Tazewell County and

conditions imposed by the Illinois Environmental Protection

Agency

(“Agency”).

It should

be noted that under Section 39.2

(e)

of the Act,

local governments may not

impose conditions

that

are inconsistent with this Board’s regulations.

Similar

restrictions apply to Agency issued permit conditions under

Section 39(a) and

(d)

of the Act, Thus,

the conflict would occur

only where three factors are present~

56~217

---

2

1.

Both the Agency and the local government establish

conditions

regarding

a specific aspect of the facility;

2.

Both the Agency condition and local government condition

are consistent with relevant

laws;

and

3.

The conditions of the Agency and local government are

mutually exclusive.

One conditi3n being more stringent

than another does not create a conflict.

If this highly unlikely situation occurs,

I have no doubt

this Board could fashion a remedy to resolve the conflict,

if

it

wished to do so.

In all other respects,

we agree with the majority opinion.

Respectfully

~

-

Bill

S’~Fdrcade

A~L~

~..

Marlin

,

/\

~‘

“

,~

~

—

(,‘•

c._c~

~Jaoob 0,

Dumelle, Chairman

I,

Christan

L.

Motfett, Cle~: of the Illinois Pollution

Control Board, hereb~certify that the above Concurring Opinion

was filed on the

day of

~

1984.

Christan L. Moffett, C

k

Illinois Pollution Con

ol Board

56-218