ILLINOIS POLLUTION
CONTROL BOARD
November 19,
1981
DONALD J~ HAMMAN,
Petitioner,
V.,
IJLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
PCB
80—153
Respondent,
and
HARRY MATHERS, ET
AL,
,
RAYMOND GREENBERG,
TOWNSHIP
OF, WHEATLAND,
CHUCK LAMPTON and
CINDY PENT~EN,
Intervenors.
JOSEPH
H.
BARNETT AND TRIS MICHAELS
(PUCKETT, BARNETT,
LARSON,
MICKEY, WILSON,
AND
OCHSENSCLAGER) APPEARED ON BEHALF OF
PETITIONER
HAMMAN;
MARY
E.
DRAKE APPEARED ON BEHALF OF THE RESPONDENT AGENCY;
OLIVER
S.
DeBARTOLO AND VAN
A.
LARSON (DeBARTOLO
AND
DeBARTOLO)
WITH CO-COUNSEL DOUGLAS
F,
SPESIA (MURPHY,
TIMM, LENNON, SP~SLA &
AYERS~
APPEARED
ON
BEHALF OF INTERVENOR GREENBERG;
ELIOT
A.
LANDAU
AND
JOSEPH M.
CLEARY (LANDAU, CLEARY & KELLY)
APPEARED ON BEHALF OF INTERVENORS MATHERS, ET
AL;
AND
DOUGLAS
F. SPESIA
(MURPHY,
TIMM, LENNON, SPESIA
& AYERS) APPEARED
ON BEHAL~~OF INTERVENOR WHEATLAND TOWNSHIP.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by J.
Anderson)
PROCEDURAL HISTORY
On January
8,
1981 the Board entered an Opinion and Order
resolving
a permit denial appeal filed August
22,
1980 by Donald 3.
!-Iamman
(Hamman),
The Board remanded the matter to the Illinois
Environmental Protection Agency
(Agency) for issuance of a permit
to
develop
a sanitary landfill on a 145 acre site
in the Townsh1~
of Wheatland,
Will County.
This appeal involves the fifth appli-
cation for permit for development of this site,
the previous four
havinj been denied for reasons not at issue here.
44—73
2
The site is bounded on one side by 111th Street, an
admittedly inadequate east—west township road situated between
Route
30
and Illinois Route 59.
The permit had been denied by
the Agency based on
Rule
314 and Rule 316(a)(4) of Chapter
7:
Solid Waste,* because “The Wheatland Township Road Commissioner
has not agreed in writing for the 111th Street to be upgraded...”
(by Flamman, at his own expense.
It had been stipulated at
the
November
19,
1980 hearing that, otherwise,
Hamman
“has met and
satisfied all procedural and substantive requirements necessary
for issuance of the requested permit”
(1R.
6).**
The Board
noted that neither rule ~
se
(that
is,
in each and every case)
requires that a permit be denied where off—site roads are inade-
quate.
It held that neither rule alone or
in combination
“is
a
sufficient reason to deny the permit under the circumstances in
this case”
(Opinion at 2,
emphasis added).***
On February 19,
1981,
the Board granted the Agency’s motion
for reconsideration.
In part because of the major public interest
expressed
in this matter
(see p.
7),
hearing was authorized.
The
Board directed that “the evidence should
focus
on
the reasons
for
denial.”
*Only
one provision
of Rule
314 addresses roads.
314(h)
requires “roads adequate to allow orderly operations within the
site.”
It was ruled to be inapplicable, as 111th St. does not
lie
within the Ilamman site.
The Agency conceded
the
inapplicability
of Rule 314 in its opening brief on reconsideration
(Agency Br.
at
18).
Rule 316(a)(4) requires a permit application to include
information
concerning
“land use and population density of the
proposed sanitary landfill
site and of the area surrounding the
site within one mile of the site boundaries.”
This
is
part of
the evidence required pursuant to Rule 316(a)
“to prove to the Agency that the development of the
sanitary landfill will not cause or tend to cause water
or
air pollution; will not violate applicable air and
water quality standards; and will not violate any rule
or regulation adopted by the Board.”
**Cjtations to the transcript of the original November 2,
1980 hearing will he made as
“iR”.
All other hearings are cited
as
“2R”.
***Board Member Goodman would have upheld the denial,
asserting
that Rule 316(a)(4)
should be read to allow the Agency
to
consider the effect of vehicular traffic
on
the surrounding
area
(Dissenting Opinion,
filed January
14,
1981).
44—74
3
In that same Order, Township Highway Commissioner Raymond
~reenberg, area resident and
property owner Harry Mathers, and
numerous others were granted intervenors~ status.
On March
19,
1981, Chuck Lampton and Cindy
Pentzien were also granted leave
to intervene.
On April
2,
1981,
the
Board denied a motion for
continuance
of
a hearing
in this matter
scheduled for April
3,
1981.
The
Board reiterated its February
direction that the
hearing should
focus on the reasons
for denial of
the permit stated in
the
Agency’s denial letter of July
21,
1980.
The Board further stated
that the Hearing Officer could,
in his
discretion,
allow by way
oF
oFfers
of
proof
the
introduction of evidence “which was
not
before the Agency when
it acted on
the permit”, but that
“the
pcoponent of the offer should
explain why the evidence is
not in
the
Agericj
record.”
Hearing
Officer
Joseph R.
?urgine presided over hearings held
on April
3 and 24,
and May
8,
22 and
29 in the t~illCounty Court—
house,
Joliet,
Illinois, and
on June
18,
1981 at the Board~s
office
in Chicago, Illinois.
At each of these except the last,
a substantial number of citizens were present, many of whom
Iestified,
*
Petitioner
Hamman
presented
2
witnesses, himself and project
engineer
Andrew
Rathsack,
and introduced 48 additional exhibits.
Intervenors
Mathers et
al. presented the testimony
of
22 witnes-
sos,
and introduced 42
exhibits0
Intervenor Creenberg himself
tuslified
and introduced
16 exhibits.
The Agency presented
no
additional
testimony or
exhibits.
Some, but not all of the
testimony
and
exhibits
were admitted into evidence;
the rest
is
in the
record
before
the Board as offers
of proof.
In addition
to over 1600 pages
of transcript plus exhibits, the Board has
also before
it
for
consideration the previously filed Agency
r~cord
of
1000—plus pages,
the transcript of the original
~oveinber
19,
1980 hearing
at which no members
of
the public were
present
(containing
testimony of
Harnrnan, Rathsack,
and James
~7.
Crowley and Norman
J.
Toberman)
and Hamman~s 8 exhibits which
had
been
admitted
into
evidence.
The
ultimate
issue
to be determined is simply stated:
should
the Board reverse its
previous finding, and hold that the Agency
properly denied the
permit for the reasons
it gave
to Hamman.
Before that issue can be
reached, however, the Board must deal
with various pending
motions, and objections raised and presecv~d
at hearing,
as well
as
the admissibility
of the proof offered.
*At the first hearing,
counsel
for Mathers et al. reported
that at least
226
citizens,
“20 public officials including
4 staLe
legislators and 5 adversary attorneys”
were present
(Interverior
Mather~sBr.
at 20—21).
44—75
4
Yet, even before so doing,
the
Board believes that a brief review
oF
the nature of a permit denial
proceeding
is a necessary
and
aooro~riateaid to the parties’
comprehension of the Board’s
decision
in this matter,
This
is particularly
so as
to the
intervenors, who at hearing
and in their briefs have demonstrated
an understandable,
if unfortunate,
confusion as
to the roles
established for the Agency and
the Board by the Environmental
Protection
Act.
PERMIT PROCEDURES UNDER_THE ACT
Section 39(a) states that
“it shall be the duty of the Agency
to issue a permit
required
by Board
regulation
upon proof by the
applicant
that
...
it
will not cause a
violation of this Act or
regulations
hereunder.”
However,
recently
enacted
Section
39(r)
(P,A.
81—1484,
eff.
Sept.
18,
1980)
provides
that
the
Agency
nay
deny
a
permit
to
conduct
any
refuse-collection or
refuse—disposal.
operation
“if
the
prospective
operator
or
any
employee
or
officer
of
the
prospective
operator
has
a
history
of”:
1)
repeated
violations
of
laws
concerning
disposal
operations,
2)
conviction
of
a felony,
or
3)
proof
of
gross
carelessness or incompetence
in dealing with hazardous waste.
If
a permit
is denied for any
reason,
the Agency must provide
“specific,
detailed statements
as
to why the permit application
was denied” including which
regulations might be violated
S39(a).
Section 40 empowers the
Board
to review permit denials.
The
Board’s
“final action” must
be taken within 90
days
of
the
date of
the
appeal’s
filing;
if
it
is not,
“the petitioner may deem the
permit issued under this Act”
~40(a),
A hearing must he held
after
21 day notice is given
to
a)
“any person
in the county.
.
.who
has
requested
notice
of enforcement proceedings”, h)
“each
member
of
the
General
Assembly
in
whose district that.
.property
is
located”,
and
c)
county
residents
by means of
“notice
in
a
news-
paper
of
general
circulation
in that county”
540(a),
Section
40(c)
provides
that
“the
decision
of
the
Board
shall
be
based
“exclusively
on
the
record
befo
th
je~y. uessthe~arties
~ree
to
sla~plernent the
record
(emphasis
added).
As
early
as
1972,
the Board stated that
“the issue
is,
in a
Section
40
hearing,
whether
the Agency erred in denying
the permit,
not
whether
new
material that was not before the Agency
persuades
the
Board”
the
Agency
was
wrong
S
ii Enrichment Materials Co~. v.
IEPA,
PCB
72—364
(Oct.
17,
1972),
As the
Board
noted
in
Oscar
Meyer and Co.
v.
IEPA,
PCB
78-14
(June
14,
1978)
“From
the
beginning
the
Board
experienced
some
difficulty
in structuring the
hearing
on
a
Section
40
petition...
But,
ijt
is
obviously
not
an
appellate
review
of
an
administrative decision,
nor could it
seem
to
be
so
when
ehere
has
been
no
recorded
hearing
and
written
finding
of
fact
at
the
permit
issuance
level.
44—76
5
More
imortantl~y,_the
Act
does
not conferj~urisdictton
on
the
Board
to sit
hate review of A5e
‘lP~
deci~sions”
(emphasis
added),
Later
that
year,
the
Supreme
Court buttressed this reasoning
in
its
decision
of
Landfill,
Inc.
v.
Pollution Control
Board,
74
Ill,2d
541,
387
N.E.2d
258
(1978),
In that case,
the Court struck
down
a
Board
procedural
rule
which
purported
to allow
“any
person
to
file
a complaint seeking revocation of
a permit”
on
the
basis
of
ilaproper
issuance
or
other
grounds.
The
Court
noted
that:
under
the
Act
“The
Board’s
principal
function
is
to
adopt
regulations
defining
the
requirements
of
a
permit system
while
the
Agency’s
role
is
to
determine
whether
specific applicants
are
entitled
to
permits.
.
,Whether the basis
for the
proceeding
under
Rule
503(a)
is that the Agency erred
by granting a permit on evidence
inadequate
to show that
the
landfill
would
not
cause environmental damage,
the
result
of
a
503(a)
proceeding
is
to make the Board the
permit—granting authority,
a usurpation of the Agency’s
function.”
387 N,E,2d at
264,
Section 40
requires that
the Agency give
a specific, detailed
list of reasons
for permit denial,
It
is precluded from
raising
any
issues before the
Board which are not
raised
in
its
denial
letter IEPA v.
PCB
and United States_Steel_Corp~, #54131,
slip.op.
at 15
(S.Ct.
Sept.
30,
1981).
The scope of the Board’s Section
40 review of Agency permit
decisions,
then,
would seem to
be, by
court interpretation,
legislatively
limited to consideration of
whether the reasons given by
the Agency
for permit denial justify
that denial.
If
the
Agency
has
specified
one invalid reason for denial
of
a
permit
where
the permit could properly be denied for
another
reason,
under
the
Landfill
holding an objecting citizen has
another
remedy.
“The
grant
of
a
permit
does not insulate violators of
the
Act
or
give
them
a
license
to pollute; however a
citizen’s statutory
remedy
is
a
new complaint against
the
polluter
under
Section
31(a)
alleging that the
activity
contemplated
causes or threatens pollution,
not
an
action
before
the Board challenging
the Agency~s
performance
of
its
statutory
duties
in issuing
a
permit.”
385
N.E.2d
at
265,
In
short,
the
effect of these holdings about the Board’s
authority
under
the
Act
is
to
create a bifurcated review system.
In a permit denial appeal,
the Board essentially must determine
whether
the Agency has made
a correct decision on the narrow
issues it has specified as reasons for its denial.
The Agency’s
favorable decision on the other matters involved
in its permitting
decision cannot be directly reviewed by the Board, although the
effects of those decisions can be reviewed
in the context of
a
Section 31(a)
“causing or allowing pollution” enforcement action.
44—77
6
PENDING MOTIONS
By its Order of March
19, 1981 the Board deferred
consideration
of
various
motions
made
by Hamman,
Hamman
first
requested that the Board declare
that his permit has issued
by
operation of law pursuant to Section
40 as of the expiration of
the 90th day,
February 17,
1981.
The Board finds this
contention
to be without merit,
While there is no case directly
on point
concerning the Board’s authority
to hold
a
rehearing
and issue
a decision after the 90th day pursuant to Section 40,
in
Modine
Manufacturin~Co.v.PCB,
40 Ill,App.3d 498
(2dDist,
1976),
the
Board was held to have authority to so do in
the context of
a
Section 38 variance petition.
As Section 38 contains
a similar
90-day deadline,
also running to petitioner’s
benefit,
the
Board
sees no reason why its authority
under Section 40 should be
differently construed.
In
addition,
if it were determined that
the
90 day clock continued to run during the pendancy of a
rehearing,
a petitioner who
had received a ruling affirming
the
permit denial could petition
for rehearing, and by virtue of
a
not unlikely combination of delay
and administrative inadvertence,
have the permit issue by operation of law.
Adherence
to the
Modine
rationale prevents
this absurd result,
Hamman also objects to the Board’s
granting the
various
petitions to intervene,
on the grounds
that the motions
were
untimely filed by persons not party
to the action,
after
the first
hearing and after entry of
the January
8 Order,
Under Rule
310,
any person who may be adversely
affected
by
the Board’s
Order may
he allowed to intervene.
While petitions
to intervene should be
filed at least 48 hours before
the first hearing, intervention
may
be
allowed “at any time before
the beginning of the hearing
where
good cause for delay is shown.”
Given the issue raised
concerning
adequacy of notice of the
pendancy of this appeal, the
Board
reaffirms its finding that a
later grant of intervenor’s
status
was the result of justifiable
delay.
Cf.
Farrnerv,IEPAetal.,
No.
80—337,
(5th
Dist.,
Order
only,
Oct.
14,
1981),
While
the
Board is
aware that this
action,
as any other, would have pro-
ceeded more expeditiously
without the presence of the
intervenors
(see Order
of Apr.
2,
1981),
the Board continues to believe
intervention is proper
“considering
the
intense
interest
evidenced
by
the public in this
matter, and the inherent thrust of the
Act
to maximize public input
into
the
Board’s
deliberations”
(Order
of
Feb.
19,
1981),
Finally, on August
26,
1981
Intervenors
Mathers
et
al,
and
Wheatland Township moved
the Board to supplement the record by
admitting a
report,
first
available
to
the
public
on
August
24,
1981,
prepared by the Illinois
Legislative
Investigating
Commission and entitled
“Landfilling
of
Special
and
Hazardous
Waste--A Report to the Illinois General Assembly~”
As this
document addresses classes of waste not at issue in this case,
has
not been subject to cross—examination,
and since
it may
contain innaccuracies or unclear statements,
it will be added
to the record only rather than as evidence in
this action.
44—78
7
ISSUES RAISED AT HEARING
In addition to
the
ultimate issue-—whether the
Agency
correctly denied the permit for the reasons stated——other issues
and objections
were raised at hearing.
The bulk
of
them
deal. with
the scope of the hearing itself,
The intervenors argue that notice of the November 19 hearinj
was constitutionally and statutorily defective,
Therefore,
in
their belief “the November
18,
1980 Agency stipulation and
the
November 19, 1980 hearing were
invalid
and
void
and
so
was
any
action flowing from them including
the
January
8,
1981 Board
decision,
the limitation of the scope of the later hearings,
and
any use of the material and information offered on November 19th
by anyone not later produced
by
the
Petitioner
at
the
subsequent
hearings”
(mt.
Mathers
Br, at 35),
Beginning
with
the
cited notice defects,
the intervenors
object to the form of the notice itself,
which stated simply that
“Notice is hereby given that a public hearing has been
scheduled
in the matter of PCB 80-153,
Donald Harnman v,
EPA,
a permit appeal, on April
3,
1981 at 9:00 A,M,
in
the Will County Courthouse,
Grand Jury Room,
14 West
Jefferson
St., Joliet,
Ill,”
They argue that “it was
so worded as to defy even a person of
above
average
intelligence
from identifying the nature
of
the
matter involved and
the
geographic area concerned”
(Br,
at
22),
The Board is also faulted
for its publication of the notice
in the Jolict Herald News,
It is not disputed that the
Joliet
Herald
News
is
a
newspaper of general circulation in Will County.
The
noted
problem
is
“that the residents of Wheatland Township
do
not
generally
read the Joliet Herald,
Rather,
they read
the
Chica~9oTribune’ s Suburban Tnt, the Na~erviUe Sun, the
P1ainfieldEnte~pnise, and the Aurora Beacon-News
(in that order)
which
with the exception of the PlainfieldEnte~nise,
are
all
published
outside
of
Will
County”
(mt. Mathers~ Br, at
20).
Notice
to
the
legislators
is also alleged to he
deficient,
in that the Board relied on publication of the hearing date
in
its
Environment~~9jster, rather than sending personal
letters
to the legislators concerned,
At the April
31 hearing,
State
Senator
George
Sangmeister
and State Representative Harry
D.
Leinenweber,
both from the 42nd Legislative District
which
includes
all
of
Wheatland
Township,
each testified that
he
was
unaware
of
the
November
hearing,
at which each would
have
been
present
to
testify.
Neither
legislator
was
sure
whether
his
office received the Re~9ister,
but
thought not
(2R.
31—52),
In
a
February
9,
1981
letter
requesting
rehearing,
State
Represen-
tative Jack Davis
(42
Dist,)
advised
the
Board
that
he
had not
received
notification
of
the
November
hearing
date,
44—79
8
Intervenors allege that the proof of the constitutional and
statutory deficiency
of the notice
is the contrast
between
the
fact that
no
members of the public attended the November 19
hearing,
whereas great numbers
attended the April—May
rehearings.
The
Board
finds
that,
to
the
extent there existed a defect in
actual notice, that the deficiency has been cured during the
rehearing process,
The Board further finds that the notice which
it gave satisfies the
statutory requirements which leave within
the Board’s discretion which county newspaper in which to run
notices, and how to
provide legislative notice,*
Had the Board found
differently, and agreed that the November
hearing was invalid as were
its subsequent Orders, the result
would likely be that the permit would he deemed issued by
operation
of
law,
for
failure of the Board to hold
a hearing and render
its
decision within
the
90 day
period
see
~
te Cement
Co.
v.
IEPA,
No. 79—851
(3rd Dist, May 30, 1980), interpreting
Section
38.
Contrary to the
intervenors’ belief,
invalidation
of the
Board’s November hearing would
not result
in the holding a
“de
novo” hearing before either
the Agency or the Board of
the sort
the Agency had promised
(hut
is not statutorily required)
to
hold
if it had not denied
the permit for “technical reasons~”
Under the present
statutory
scheme, the Agency has the
exclusive discretion to
determine
how it will build
its
record
for review,
how
it
will
clerically
maintain it, and what
sort
of
public hearing, if any,
it will hold to consider
those
issues
about
which
it
seeks
additional
input.
See
Villa eof
South
El~nv. Waste
ManaSement of Illinois,
62 Ill,App,3d 815,
379
N,E,2d 349
(2nd Dist,
1978).
The scope of an Agency hearing
has no statutory
limits, beyond relevance,
The Board’s
hearing must be based “exclusively on the
record
before the Agency,
.
.unless
the parties agree to supplement the
record,”
In this
action there was no such agreement by Hamman
or
*The Board wishes to comment that the notice given in this
action was
that given in every such action since the Board’s
inception, and concerning
which this
is the first case in which
objection has been
made,
Finding
that,
as a matter of good
government
if not of law,
some of these objections are well
founded,
the Board has since begun to notify legislators of the
pendancy of
permit appeals by letter and has somewhat expanded
the form of its notice,
While publication of a synopsis of
each
case
in every notice
of hearing would convey the best possible
sort of notice,
given
the
Board’s case volume, its budgetary
constraints, and the high
cost,
even of “tombstone” ads,
such
action
is impossible at this
time,
The Board supplements
these
abbreviated notices by
publication of its biweekly Environmental
Resister (available
at no cost)
which lists scheduled
Board
hearings and briefly summarizes
new cases as they are
filed,
and
by availability of its staff for
consultation,
44—80
9
the Agency,
who
instead chose to enter into a stipulation that the
hearing was to be restricted to the issue of roads——the sole issue
which the Agency pinpointed for the Board’s review in its denial
letter.
The
Board
accordingly sustains the evidentiary rulings of
its Hearing Officer,
and
rejects all offers of proof of fact not
relating to the lack of an agreement for the upgrading of 111th
Street.*
THE 111TH STREET ISSUE
The issue presented to the Board for
review,
as refined in
the Agency’s November 18, 1981 stipulation, and further refined
by its recent concession of the inapplicability of Rule 314, is
whether Rule 316(a)(4) supports the Agency’s denial of a
permit
“based solely upon Petitioner’s failure to present any evidence
of agreemen
by the Wheatland Township
ad Commissioner for the
upgrading o
111th Street in accordanc
th the specifications
set forth in the April 25, 1980, traffi
analysis of 111th
Street prepared by Planning Horizons.’
At the outset, the Board reaffirms its earlier holding that
Rule 316(a)(4) could serve as the basis of a
permit
denial if
supported by a sufficient finding of fact in the denial letter.
For
example,
if
the
Agency
specifically found
that
an
adopted
land
use
plan
had
called
for
maintenance
of
an
undeveloped
rural
road in this area as part of a concerted effort through zoning
and other means to preserve an exclusive agricultural use for
prime farmland, then it is possible that permit denial would be
proper because development of the road to specifications required
for landfilk use would violate an adopted land use plan.
Here,
however, cittion
to Rule 316(a)(4) is supported by no such
specific
findings.
Raymond
Greenberg, Township Highway Commissioner, testified
that lllth’Street is a “public highway,”
which currently carries
the traffic of heavy trucks hauling grain, gravel,
steel,
and
fertilizer, at various volumes during various times of the year
(2R. 1263).
Other testimony by various residents describes it
as a “narrow gravel road with very little ditching on the side
capable of handling
water”
(2R.
163), which is
just
wide enough
for
one—way traffic
at
some
points.
Much
of
the
road
is
subject
*The
Bciprd
notes
that
most of the evidence offered is
duplicative of evidence already in the Agency record concerning
issues which have been under consideration since the filing of
Hamman’s first
permit
application.
This is not a case in which,
because
thç
record
is
so
spotty,
or
so
devoid
of
the
information
in areas other than those involving the stated reasons for denial,
that
the Board must wrestle
with
the
question of what authority,
if any, it has to remand the case to the Agency for development
of an adequate record.
44—si
10
to
flooding as evidenced by testimony (e~g.2R,
196)
and the
U.S,~
Geological Survey Map
(Greenberg Ex~. 6), as well
as
other
exhibits
(Greenberg EX~ 7,
13),
There exist visibility
problems
at the angled (27°) intersection of U~S. Route 30 and 111th Street
due to a
rise in Route 30 near that point
(2R,
148,
149,
204,
252—254).
~A short distance east of this point, two
unprotected
E.J.
&
E,
railroad crossings bisect 111th Street at a point
where
the
road
is approximately 12 feet wide,
and visibility
poor
(2R.
634,
635),
The Board
agrees that the trucks servicing the Hamman
landfill would increase
the volume of traffic on 111th
Street,
although such traffic
is
not different in nature from that
the
road currently carries,
The Board need not reach the issue of
whether the Agency could
and should ~~ire
Hamrnan to
improve
111th Street
himself,
as part of its consideration of the
use of
the land in
the area,*
Hamman has,
in effect, agreed to
issuance
of
a development
permit wib~ a condition that he upgrade
111th
Street from Route
30 east to its intersection with Normantown
Road,
and further east
to
a
portion where 111th Street is presently
paved
(2R.
1150—51,
1228,
1241),
“if, and when the
Township
agrees
to the
improvement”
(Pet.
Reply Br,
at 21).
The question then
becomes
whether
the
Agency can deny issuance of a permit because
of lack of a wr~nareement
with the Township Road
Commissioner,
on the basis of Rule 316(a)
(4),
The Illinois Highway
Code (Ill,Rev~Stat~Ch~121)
was
enacted
in part “to provide for
improvement of highways” with
“the
cooperation of State,
county,
township and municipal
highway
agencies”
(~1~102), The duties enjoined upon a township highway
commissioner include one “to have general charge of the
roads of
his district, keep the same
in repair to i~2~~ethemsofaras
is
~
(S6~201,8, emphasis added).
As Greenberg alluded
to in his testimony,
the availability of funds
is the primary
restraint on
“practicability”,
Hamman
and
Greenberg
agree
that the township
commissioner
is empowered to
accept
what
amounts to free road improvement,
as
“any person
or
persons
interested,, ,is or are authorized to offer
*Any such ruling would have
little or no precedential value.
SB 172,
P,A, 82~06~82,“An Act relating to the location of sani-
tary
landfills and hazardous waste disposal sites” was signed by
the
Governor
November
12,
1981, the General Assembly having
completed acceptance of
his
amendatory veto of September 24,
1981
on October
28,
1981,
Under the terms of that bill,
counties
or
municipalities would
be given the authority to deny
approval
of
“site location suitability”
(and thereby block
issuance of
Agency
permits) for “regional pollution
control
facilities”
base~dupon a
number of what may be called “traditional land use considerations”
which
were attempted to be
asserted in
this
action,
including the
“traffic
patterns
to or from the facility.”
44—82
11
inducements to the highway commissioner,, .by entering into
contract
with the commissioner...”
(~6—310),
There is some
disagreement as to which portion of the
Highway
Code
establishes
all of the necessary procedures
(compare Pet.
Br.
at 8-9 with
Greenberg Br. at 11—13 concerning applicability of the petition
procedure of 6—303 et
seq.).
However,
it is agreed that Hamman
has not submitted an inducement contract to Greenberg (2R,
1160—
1162,
1232, 1268—1269),
although the two discussed the issue
at
several public
meetings,
and corresponded concerning it
(2R,
1369,
1377,
1403,
1404,
1405,
Pet.
Ex,
1—4),
Denial of the Hamman permit for failure of a local
official,
for
whatever reason, to agree to do that
which he is empowered to
do, and has the duty to do—-improve township roads--at
the cost
of
a
permit
applicant, was improper,
The Board is persuaded that
in
so
doing, the Agency has
unlawfully delegated its permitting
authority.
The bar,
if any in fact
will prove to
exist, to the
upgrading of 111th Street,
is
one
of the “locally imposed
conditions which the courts have found to be inconsistent” with
the basic purpose
of the
Act--’to establish a
unified
state—wide
program supplemented by private remedies~Carson v.
Vi1l~e~f
Worth,
62 Ill,2d 406,
343 N.E.2d 493,
499
(S,Ct, 1975) and cases
cited therein.
(See also County of
Cocky.
John Sexton Con-
tractors,
75 Ill.2d 494,
389 N.E.2d
553,
applying
this
rationale
to
non—home—rule units.)
To the extent that the Agency’s
denial was a result of
environmental concerns rather than
traffic control
or other
concerns,
the environmental concerns
could
have
been
satisfied
by issuance of a permit containing
a
condition that 111th Street
be
improved by Hamman at his expense, as
Hamman has repeatedly
agreed to do.
In denying
the permit for
reasons related solely
~o lack of a written agreement, the
Agency has
a)
allowed local
distaste
for the
Harnman site to
over—ride its acceptance of
Hamman’s
showing of an
area—wide need
for
a
new landfill, and
B)
has cut-off
access by
Hamman and any
other affected individual
to
available “private remedies” to insure
that the area~s
environ-
mental needs, waste disposal needs,
and
traffic control needs are
each met,
Regardless of any personal interest
or bias against the
Hamman landfill permit which Greenberg
may feel as
a
private
individual
(R.
1245_1263)*
the Board
accepts
at face value his
*The
Board notes this
portion of the transcript as containing
one of
the few proper,
professionally
pursued attempts to develop
such
information.
It is in
marked
contrast to much of the rest
of
this transcript,
which contains
much of what was correctly
characterized as “inappropriate
attorney comment and characteri-
zations, argument
and
baseless objection”,
as well
as “insultis
and malicious attacks
upon
the character
of Petitioner,
Petitioner’s attorneys, engineers,
and,, .business associates...
(footnote continued on next page)
12
statement to
the effect that
as Highway Commissioner, he would
perform
his statutory duties and agree
to permit Hamman to improve
the road
if
all proper,
statutory procedures
are followed
(R.
1243,
1253).
Even had
not such
a statement been made, remedies and
appeal routes for failure to fulfill statutory duties are
potentially available to Hamman and any other citizen under the
Highway Code and in equity by action of writ of mandamus.
In
addition,
if use of
the road in and of itself causes or threatens
pollution,
a remedy
is available under the Act itself
see
BaiieI
v.
Viiiaçjeof
Mill
Shoals,
PCB 80-6
(September 18,
1980),
finding
the
Village of Mill Shoals in violation of Section 9(a)
and
re-
quiring
the reduction of dust on a no-longer-oiled Village Street.
Finally,
the
Board wishes to
again
comment
that,
in
its
opinion,
final
action concerning
this permit was taken on January
8,
1981.
Reference should he made to
that
date
in
determining
the applicability of any legislative enactments subsequent
to the
Agency’s denial decision of July 21,
1980,
regardless of the date
on which the Agency completes the now—ministerial task of
issuing
the
permitting paper.
This Supplemental Opinion and Order constitutes the Board’s
supplemental findings of fact and conclusions of law in this matter.
ORDER
Upon reconsideration, the Board clarifies its Opinion and
re—affirms its
Order of January
8,
1981,
and all Orders
entered
in
this cause thereafter.
This matter is remanded
to the Agency for
issuance
of
a
developmental permit subject
to lawful
conditions,
IT IS
SO ORDERED,
(footnote from page 11 continued)
and
contempt for the Board and its Hearing Officer”
(Pet,
Reply
Br. at
14).
While
the
Board
appreciates that the flow of
adrenalin runs high at this sort of hearing, it feels the bounds
of professional decorum were
often transgressed despite the
commendable efforts, under the circumstances,
of its Hearing
Officer and most participating
counsel,
Board Members J. Dumelle and
I.
Goodman dissented.
I,
Christan L. Moffett,
Clerk of the Illinois Pollution
Control
Board, hereby certify
tha~tthe above Supplemental Opinion
and Order
was adopted on the
/~~i~t
day
of
1981 by a vote of
~
Illinois Pollutio
44—84
