Daly v. Pollution Control Board

PRESIDING JUSTICE HOFFMAN, dissenting:

Local siting approval of a new regional pollution control facility is governed by section 39.2 of the Environmental Protection Act (Act), which provides that local authorities shall approve site suitability only in accordance with the criteria set forth therein. (111. Rev. Stat. 1991, ch. lll1/2, par. 1039.2.) It is only when the governing body of a municipality finds all of the criteria of the statute have been satisfied that site approval can be granted. One of the criteria set forth in section 39.2 of the Act is the requirement that the facility must be located outside the boundary of the 100-year flood plain or the site must be flood-proofed. 111. Rev. Stat. 1991, ch. lll1/2, par. 1039.2(a)(iv).

The issue central to the disposition of this appeal is whether the ordinance of the Village of Robbins (Village) which approved the siting of a new regional pollution control facility within its borders as proposed by the application of the Robbins Resource Recovery Company (RRRC) complies with the provisions of section 39.2 of the Act. I believe that it does not and therefore I dissent.

The site of the facility proposed by the RRRC and approved by the village is partially located within the boundary of the 100-year flood plain. On this issue there is no dispute. Consequently, to satisfy the criteria set forth in section 39.2(a)(iv) of the Act, the site must be flood-proofed. Section 3.43 of the Act defines the word "site” as "any location, place, tract of land, and facilities, including but not limited to buildings, and improvements used for purposes subject to regulation or control by *** [the] Act or regulations thereunder.” (111. Rev. Stat. 1991, ch. lll1/2, par. 1003.43.) The only mention of compliance with the criteria of section 39.2(a)(iv) of the Act within the village’s site approval ordinance is set forth in paragraph 18, which states: "The Facility is designed to be flood-proofed.”

Common sense dictates that a site within a flood plain would not be flood-proofed until after it is approved and permits for construction of a facility on the site have been issued. However, before a local authority can approve the siting of a new regional pollution control facility, each of the statutory criteria must be satisfied. (Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434 , 513 N.E. 2d 592 .) It appears that the dilemma can be solved only when local siting approval is conditioned upon the site being flood-proofed. (See Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994 , 554 N.E. 2d 1176 .) Requiring that local siting approval of a facility that is to be located within the flood plain be conditioned upon the site being flood-proofed serves two purposes. First, it avoids an absurd construction of section 39.2(a)(iv) that would require an applicant to purchase and flood-proof a tract of land before ever obtaining approval for the construction of a new regional pollution control facility upon it. Second, it ensures compliance with the criteria of section 39.2(a)(iv), which mandates that the site of a facility located within the flood plain will be flood-proofed. Section 39.2(e) provides a local governing body with the authority to impose such conditions upon its siting approval as may be necessary to accomplish the purposes of that section of the Act. 111. Rev. Stat. 1991, ch. llli/a, par. 1039.2(e).

Because the village’s site approval ordinance is silent on the flood-proofing of the site as mandated by the statute referencing only a facility that is designed to be flood-proofed and fails to condition approval upon flood-proofing of the site, I believe that the criteria of section 39.2(a)(iv) of the Act have not been satisfied. Consequently, I would reverse.