The Rostrum By JEANNE F. BECKER, Associate Planner, Lake County Department of Planning, Zoning & Environmental Quality

The law and landfill site selection

THE SANITARY landfill siting law passed by the General Assembly in late 1981 was an attempt to give local officials more control over the location of landfills, but its implementation has been costly, time consuming and of questionable effectiveness.

On November 12, 1981, Senate Bill 172, "An Act relating to the location of sanitary landfills and hazardous waste disposal sites," was enacted into law (P.A. 682). It gives the government of the county or municipality in which a landfill site is proposed the authority to review the location of the site with regard to such factors as the effects on adjoining land uses, on roads and traffic and on visual aesthetics. Technical review of the design, construction and operation of the site remains within the purview of the Illinois Environmental Protection Agency (IEPA). Under S.B. 172, a local decision on landfill site suitability may be appealed directly to the Pollution Control Board, the state enforcement agency for the environment.

As of January 1, six decisions had come down from the Pollution Control Board. A particularly controversial ruling was the very first for the board under S.B. 172. In this case, it overturned Tazewell County's denial of a site application, explaining that the authority of the county board to consider public health, safety and welfare did not include the authority to review the technical aspects of the design and construction of the landfill. This decision has been appealed to the appellate court.

Here in Lake County we have processed two of those six applications under this law, one from Browning Ferris Inc. (BFI) near Winthrop Harbor and a second application from Waste Management of Illinois Inc. to expand a site east of Antioch. The Lake County Board granted conditional approval to BFI. Upon appeal to the Pollution Control Board, nearly all of the conditions were found to be beyond the county's jurisdiction and therefore were stricken. The county board denied the Waste Management request; this decision was the first local denial upheld under the law by the Pollution Control Board.

In testimony before a House subcommittee last September, Richard J. Carlson, director of the IEPA, summarized actions under the law: "Of the 19 facilities which have been reviewed by local governments, 14 were approved and 5 were not. . . . What I think all this shows is that S.B. 172 is working. Counties and municipalities are making the land use decisions about new sites according to the criteria in the law."

From the IEPA's point of view, the law is working because the hot potato of landfill siting has passed from the IEPA to the Pollution Control Board. Contrary to what Carlson has said, however, it is not local officials who are making the final decisions; it is the Pollution Control Board. Of the eight landfill requests that were denied by local governments in 1982, six of the decisions were appealed to the Pollution Control Board.

The board must base its decision solely on the written record established at a local public hearing. The responsibility and cost of developing a complete record lies with local officials; the interpretation of that record is frequently made by the board on an appeal.

The cost of implementing S.B. 172 is one of the major criticisms heard around the state. The review and subsequent appeals of the Waste Management application cost Lake County $25,000 worth of staff time;

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it cost Antioch, a village of 4,400 residents, $100,000 in attorneys' fees; and it is estimated to have cost the applicant $250,000. And to what avail? Regardless of whether or not this one landfill, with an expected life of 10 years, is constructed, the solid waste problems of Lake County will be no closer to a long-term solution than they were prior to the initiation of this controversy.

The problem is magnified around the state. Will County officials sat through two months of almost daily hearings and developed 4,000 pages of written transcript in their review of three landfill sites in that county. In the end all three sites were denied, by the county, but two of these decisions have been appealed and the third is expected to be.

It is prudent to compare the legal expertise of the various parties since it appears that most controversial cases are ending up in the courts. On the applicant's side we have such international firms as BFI and Waste Management, with 1981 revenues of $661 and $773 million, respectively. These firms have in-house legal staffs and can hire big name law firms from LaSalle Street when necessary. On the side of the county or municipality, there are one or two state's attorneys or a village attorney. Granted, the Pollution Control Board has taken this inequity into account when making its decisions. The "very simplistic" testimony of an admittedly inexpert witness presented by Antioch helped sway the board to uphold the denial in that case. However, that decision may yet be appealed to the appellate court where the new law has yet to be tested. (Appeals of Pollution Control Board decisions do not go to a trial court but directly to the appellate court.)

The fact that S.B. 172 places such heavy emphasis on the public hearing and the subsequent written record forces all parties involved to take sides. Anyone who has attended a controversial public hearing knows that it fosters antagonism and the polarization of interests rather than encouraging consensus and agreement. Distrust among all parties builds, especially at hearings that go on for weeks, and it is no wonder that the issue eventually ends up in the courts. When Lake County attempted to compromise with a conditional approval for the BFI site, the board overturned 13 of the 15 conditions that were appealed. Thus, if there are concerns surrounding a site, outright denial appears to be a better gamble than approving the site with conditions that mitigate the concerns.

A final criticism of S.B. 172 is the piecemeal approach which it fosters in solid waste planning. Each landfill or other waste facility is evaluated against six criteria specified in the law. It is not possible to compare two landfill locations or to compare a landfill with an alternative facility such as a resource recovery plant. A marginal site which is reviewed this year may be approved whereas a much better site in the same county may be denied a year from now if the need for the disposal capacity can no longer be established.

Under the present system, responsibility for the selection of sites and management technologies rests primarily with the private sector. Legislation which required countywide solid waste plans or which offered financial incentives for such planning would encourage the public sector to take a comprehensive approach to the problem. Michigan's Act 641 requires each county to prepare a solid waste management plan which includes the consideration of alternatives to landfill disposal. Wisconsin offers grants to counties covering up to 50 percent of the cost of preparing a solid waste plan. Wisconsin's new law also includes a negotiation and arbitration process in order to encourage resolution of conflicts outside of the courts. These laws are not a panacea for solid waste problems, but they do acknowledge that a lasting solution will be developed only when the entire problem of waste management is addressed.□

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