dissenting:
I respectfully dissent. The majority believes County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, applies to the instant case. I partially agree and come to a different conclusion. In the Sternaman case, a portion of the county’s zoning ordinance regarding the regulation of “the mining operation, including washing and screening of sand and gravel” was found invalid pursuant to the implied repeal by the EPA. (Sternaman, 63 Ill. App. 3d at 680.) In this case, the factual issue is not with the operation of the mine but with the reclamation of the mine after the uncontroverted cessation of mining operations. The Sternaman court states:
“The EPA contains no express repeal of the county zoning act. Neither does it repeal the county zoning act by implication by covering the entire subject matter of the zoning act with the intent of being a substitute for it. If there is to be a repeal by implication, it must be due to the irreconcilability of the provisions of the subsequent statute when compared to those of the earlier statute.” (Emphasis added.) (Sternaman, 63 Ill. App. 3d at 681.)
I do not believe that the Sternaman case held the EPA superseded that portion of the McHenry County zoning ordinance regarding the rehabilitation of the property after the cessation of mining operations. Support for this position comes from the fact that the EPA is silent in this regard. Furthermore, the passage of the Reclamation Act is additional evidence that the legislature did not consider the EPA as encompassing mine reclamation. (Ill. Rev. Stat. 1987, ch. 961/2, par. 4501 et seq.) I conclude that the EPA is not irreconcilable with the applicable provisions of the County zoning ordinance based upon the facts in this particular case because the zoning ordinance is concerned with what is to be done after the cessation of operations regarding the reclamation of the land rather than the regulation of ongoing mining operations.
The majority also indicates that the Reclamation Act effectively repealed that portion of section 508 of the County zoning ordinance pertaining to the reclamation of land affected by surface mining. I disagree.
I agree with plaintiffs that, due to the small size of the mine, the Reclamation Act does not apply to this particular mine pursuant to section 4 entitled “Necessity of Permit” which states:
“It shall be unlawful for any operator to engage in surface mining in an area where the overburden shall exceed 10 feet in depth or where the operation will affect more than 10 acres during the permit year without first obtaining from the Department a permit to do so, in such form as is hereinafter provided.” Ill. Rev. Stat. 1987, ch. 961/2, par. 4504.
Additionally, the Reclamation Act could be interpreted in two ways. First, its statement of policy is silent as to what is done after the commencement, location, and operation of surface mining facilities. (Ill. Rev. Stat. 1987, ch. 961/2, par. 4502.) Even if it were concerned with reclamation after commencement, location, and operation, the Act only exercises jurisdiction of mines greater than 10 acres or where the overburden shall exceed 10 feet in depth during the permit year. The mine in this case is excluded from the Reclamation Act under these criteria. Consistent with my interpretation, the statement of policy declares that the permit holder must comply with State and local law. Ill. Rev. Stat. 1987, ch. 961/2, par. 4502.
The County claims that the reclamation of land is part of the mining process. Neither the EPA nor the Reclamation Act provides for any regulation of the reclamation of this property after the cessation of mining operations. It is axiomatic that, if mining operations have ceased and reclamation has not been instituted, then reclamation is not part of the operation of the mining process. Reclamation of this mine has not been regulated or enforced under the EPA or the Reclamation Act and may never be instituted unless the zoning ordinance is enforced.
In conclusion, there is nothing to suggest that the reclamation of this mine is irreconcilable with the provisions of the EPA or the Reclamation Act. I would, therefore, reverse and remand the cause for further proceedings consistent with my belief that the ordinance was and is enforceable.