ILLINOIS POLLUTION CONTROL BOARD
December 6,
1989
METROPOLITAN WASTE
)
SYSTEMS,
INC.,
SPICER,
INC.,
and SPICER PROPERTIES,
INC.,
Petitioners,
V.
)
PCB 89—121
(Landfill Siting
CITY OF MA’~SEILLES,
)
Review)
)
Respondent.
SUPPLEMENTAL OPINION
(by M.
Nardulli):
On December
6,
1989,
the Board adopted
an Opinion and Order
affirming
the July
26,
1989
decision
of the City
of Marseilles
(“City”)
denying
siting location suitability approval
for a
new
regional pollution control facility to Metropolitan Waste Systems
Inc.
(“Applicants’t).
The portion of the Board’s Opinion relating
to Criterion No.
1 states:
Six members of the Board were present at
the December
6,
1989 meeting at which decision
in this matter was statutorily required to be
made.
Section
5 of the Act provides that
“4
votes
shall
be
required
for
any
final
determination
by
the
Board.”
The
draft
Opinion
discussed
at
the
meeting
failed
to
pass,
the
Board
being
“deadlocked”
at
a
3-3
vote.
As
a
statutory
majority
of
4
votes
could not be mustered for any written Opinion,
there
is
no
Opinion
of
the Board a~ to
the
criterion
1 issue in this case.
The
“draft Opinion”
referred
to
above
contained
the
following
language
in its discussion
of criterion No.
1:
The Board notes that
it
is
disturbed by
Objectors’
argument
that
the
City
properly
found that need was not established because,
absent the inclusion of Cook and Lake Counties
in
the
intended
service
area,
the
instant
facility is not “needed.”
Section 39.2(a) (1)
of the Act provides that the applicant has the
burden
of establishing that
‘the facility
is
necessary
to
accommodate the waste
needs
of
the area intended to be served.”
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1039.2(a)(l)
(emphasis
added).)
It
is
the
applicant who
1~635
2
defines
the
intended
service
area,
not
the
local
decision
making
body.1
Absent
the
adoption
of
solid
waste
management
plan
pursuant to section 39.2(a) (8)
of the Act (the
effect of which will not be speculated upon at
this
time),
a
local
decision making body
is
not
free
to
redefine
the
intended
service
area.
The
Board
also notes that
the City’s
statement
that
“the
possibility
of
more
convenient
sites
being
developed”
is
speculation.
(See,
Tate
v.
PCB,
No.
4—89—
0061,
slip.
op.
at
51
(4th
Dist.
Sept.
28,
1989)
.)
The above-quoted paragraph is the language which is referred
to
in
the
Supplemental
Opinion
filed
January
4,
1990.
(Metropolitan
Waste
Systems,
Inc.
v.
PCB,
PCB
89-121.
(Supp.
Opinion
by
Dumelle,
Forcade
and
Flernal).)
That
Supplemental
Opinion
states
that the members
agree with the
majority of
the
“draft
Opinion’s”
discussion
on
criterion
No.
1.
(j~.
at
1.)
“However, there was one paragraph with which we disagreed.”
(~.)
The Supplemental Opinion concludes with the statement that “for
these additional reasons, we voted to uphold the City’s decision.”
(jç~.at
6.)
The unusual procedural circumstances surrounding the Board’s
decision
in
this matter warrants
attention.
Moreover,
such
an
explanation
is particularly necessary
in
light
of the Appellate
Court’s mandate that,
to avoid
remandinent,
the Board must review
the local governmental body’s decision on each contested criteria.
(Waste management v.
PCB,
175 Ill. App.
3d 1023,
530 N.E.2d
682,
691—92
(2c1 Dist.
1988).)
At the December
6,
1989 meeting
at which decision
in
this
matter was statutorily required to be made
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1040(a)(2)),
this Board
voteu
on each
contested
criterion separately.
As noted in the majority Opinion,
only six
Board
Members
were
present
at
the
meeting
and
the
Board
“deadlocked” at
a 3-3 vote on criterion No.
1.
(Waste Management
Systems
v.
PCB,
PCB
89—121
(December
6,
1989).)
I
fail
to
understand how such
a “deadlock”
occurred
in this cause
in
light
of the language of the Supplemental Opinion filed by those three
1The Board notes that an Applicant who proposes
a
large
or
highly
populated
service
area
still
carries
the
burden
of
establishing
need
based
upon
a
consideration
of
such
relevant
factors
as
the existence
of
other disposal
sites,
expansion
of
current
facilities
and
projected
changes
in
refuse
generaticn.
Hence,
a
larger
intended
service
area
will
arguably
impose
a
greater burden upon the Applicant in terms of the amount and type
of evidence needed to be presented.
106—36
3
members
who
voted
against
~
dissented
from)
the
“draft
Opinion’s”
conclusion
on
criterion
No.
1.
The
“draft
Opinion”
stated
that,
for various
reasons,
the
City’s
determination
that
Applicants
failed
to
establish
that
the
proposed
facility
is
necessary to accommodate the waste needs
of the intended
service
area
is
not against
the manifest weight
of
the
evidence.
The
Supplemental Opinion reproduces and reiterates its support for this
language,
with
the
exception
of
one paragraph.
(Supp.
Op.
by
Dunelle, Forcade and Flemal at 2-5 (January 4, 1990).)
Apparently,
the
members
joining
in
the
Supplemental
Opinion
are
in
full
agreement with the ultimate
outcome on criterion No.
1
--
that
ultimate
outcome
being
that
the
City’s
determination
that
Applicants
failed
to
meet
criterion
No.
1
should
be
affirmed.
Those Members, however, strongly disagreed with the language of one
paragraph of the “draft Opinion’s”.
(Supp.
Op. by Dumelle, Forcade
and Flemal
at
1
(January 4,
1990).)
I believe that the appropriate course of action to be taken
when
one
disagrees
with
an
aspect
of
an
adjudicatory
body’s
reasoning,
but
agrees with the ultimate
outcome,
is to
file
a
concurring
opinion.
Such
an
opinion
gives
those
who
are
in
disagreement
with
the
majority’s
reasoning
the
opportunity
to
explain that disagreement while at the same time noting agreement
with the ultimate outcome.
It is only when one disagrees with the
majority’s ultimate outcome
(in this case, the determination that
the City’s decision on criterion No.
1 is not against the manifest
weight
of
the
evidence)
that
one
should
dissent.
While
I
appreciate the sensitive nature of the disputed paragraph contained
in the reasoning of the “draft Opinion,”
I do not believe that the
practice of dissenting
in form and agreeing in substance can ever
be countenanced.
The
instant matter,
where
it is of the utmost
importance
for the Board
to render
a
decision on each contested
criterion, highlights the unfavorable consequences of adhering to
such
an
improper
procedural
practice.
Perhaps
the
proper
application
of
concurring
and
dissenting
opinions
could
be
addressed in the promulgation of the Board’s procedural rules.
Although the unfortunate procedural circumstances surrounding
the Board’s decision on criterion No.
1 prevented the filing of a
majority Opinion
on
that
criterion,
for purposes
of
appellate
review
it
is important to state that
I am in
full agreement with
that portion of the “draft Opinion’s” discussion on criterion No.
1
reproduced
in the Supplemental
Opinion
filed
January
4,
1990
beginning at the second paragraph on page two.
(Supp. Opinion by
Dumelle, Forcade and Flemal (January 4,
1990).)
I believe that the
City’s determination that Applicants failed to establish that the
proposed facility
is necessary to accommodate the waste needs
of
the area it is intended to serve is not against the manifest weight
of
the
evidence.
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1039.2(a) (1); Waste Management of Illinois,
Inc.
v.
PCB,
122 Ill.
App.
3d 639,~461 N.E.2d 542
(3d Dist.
1984).)
106-37
4
As
noted
above,
however,
I
would
also
have
included
a
statement in response to an argument raised by Objectors in their
brief.
In an attempt to bolster the City’s determination that the
“need criterion” was not been met by Applicants,
Objectors argued
that the City properly found that need was not established because,
absent
the
inclusion
of
Cook
and Lake
Counties
in
the
intended
service
area,
te
instant
facility would not
be
“necessary.”
I
would have inclu~ed,
in the majority Opinion,
a statement that it
is the Applicant who defines
the
intended
service
area,
not the
local
decision
making
body
and
that,
in
the absence
of
a
solid
waste management plan,
a local decision making body is not free to
redefine the intended service area.
Such a statement is consistent
with the plain language of criterion No.
1.
(Ill. Rev. Stat. 1987,
ch.
111½,
par.
1039.2((a)(l).)
Section
39.2(a)(l)
of
the Act
provides that the applicant must demonstrate that “the facility is
necessary to accommodate the waste needs of the area it is intended
to serve.”
According to this
criterion,
any assessment of need
must
be
done
in
the
context
of
the
intended
service
area
as
proposed bY the applicant.
A contrary interpretation allowing
a
local decision making body to
reject or redefine
a service area
would,
in
essence,
divide
criterion
No.
1
into
two
separate
inquires:
(1)
do we
like
the service area?;
and
(2)
if
so,
is
there
a
need?
Had
the
legislature
intended
to
allow
a
local
decision making body
to reject an applicants’
request for siting
location
suitability
solely on
the desirability
of the
intended
service area,
the legislature would have included such a separate
criterion.
Rather than providing for two separate inquiries,
the
legislature,
in criterion No.
1,
provided for
a determination of
need based upon the area intended to be served by the applicant.
Lastly,
I would note my disagreement with the statement in the
Supplemental Opinion
filed January
4,
1990,
that
the
paragraph
contained
in
the
“draft
Opinion”
discussing
the
local
decision
making body’s inability to redefine the intended service area would
have reversed this Board’s decision in Fairview Area Citizens Task
Force
v.
Village
of Fairview,
PCB
89—33
(June
22,
1989).)
We
stated in Fairview that a local decision making body “has the power
to
determine
if
a
proposed
service
area
is
acceptable
or
unacceptable.”
(j~.at 13-14.)
This statement must be viewed
in
light
of
the
plain
language
of
section
39.2(a)(1)
of
the
Act.
Section
39.2(a)(l)
states that siting approval
shall
be granted
only
if
the proposed
facility
“is
necessary to
accommodate
the
waste
needs
of
the
area
it
is
intended
to
serve.”
If,
as
in
Fairview,
a local
decision making body finds that need has been
established for the service area intende.d by the applicant,
I
agree
that
it can be said that the local
decision making body has,
by
implication, accepted that service area.
However,
I do not believe
that the converse of this
is necessarily true.
I
do not believe
that section 39.2(a) (1) grants to the local unit of government a~y
“power” or “authority”
to reject the proposed service area alone
without any reference to “need”.
I believe that a local decision
making body
is
free to “determine if
a proposed service area
is
1OA-3R
5
acceptable or unacceptable” as it relates,
and only as it relates,
to whether
that applicant has
established that the
facility
is
necessary to accommodate the waste needs of the area it is intended
to serve.
In light of this position,
I do not
believe that the
paragraph proposed in the “draft Opinion” is at odds with, or would
have
reversed,
Fairview
as
the
Supplemental
Opinion
suggests.
Further,
I believe that the construction of Fairview suggested by
the Supplemental
Opinion
filed January
4,
1990
is
an inaccurate
representation of the Board’s intent and,
further,
is
in error as
it fails to apply the plain meaning of section 39.2(a) (1)
of the
Act.
~
Michael
L.
Nardulli
Board Member
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby
cer~ify that
th
above
Supplemental
Opinion
was
entered on the
~
day of
~
1990.
~
~
Dorothy M.’/Gunn,
Clerk
Illinois P~bllutionControl Board
1fl(~—3~
.
S