ILLINOIS POLLUTION CONTROL BOARD
May 4, 1995
MEDICAL DISPOSAL SERVICES,
)
INC.,
Petitioner,
V.
)
PCB 95—75
PCB 95—76
ILLINOIS ENVIRONMENTAL
)
(Permit Appeals
-
Air, Land)
PROTECTION AGENCY,
)
(Consolidated)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by N. McFawn):
Before the Board in this permit appeal are several filings:
a motion for summary judgment, supporting memorandum, and
statement of uncontested facts submitted by petitioner Medical
Disposal Services, Inc. (MDS) on March 31, 1995, and a cross—
motion for summary judgment, response to petitioner’s motion for
summary judgment, and response to petitioner’s statement of
uncontested facts submitted by respondent Illinois Environmental
Protection Agency (Agency) on April 25, 1995. On April 28, 1995,
MDS filed a response to the Agency’s cross—motion for summary
judgment and a motion to strike the responsive pleadings of the
Agency. On April 25, 1995, the Human Action Community
Organization (HACO) filed a petition to intervene, in this
proceeding. MDS filed a response to the petition to intervene on
April 28, 1995. The City of Harvey (Harvey) also filed a brief
in support of respondent’s motion for summary judgment on April
25, 1995. Harvey’s April 17, 1995 petition to intervene, to
which MDS had filed a response on April 18, 1995, is also still
pending.
MDS filed its initial permit appeals in PCB 95-75 (air) and
PCB 95-76 (land) on March 3, 1995, seeking review of the Agency’s
January 31, 1995 denial of MDS’s construction permit applications
for the construction of a medical waste treatment facility. Each
appeal cites
six
arguments in support of the requested relief.
The six arguments are: 1) compliance with Section 39(c) of the
Act; 2) fundamental fairness; 3) past Agency practice; 4)
unconstitutional taking of property; 5) estoppel; and 6)
equitable tolling. The appeals were consolidated by order of the
Board on March 9, 1995. In its March 31, 1995 motion, MDS seeks
summary judgment on its first ground for relief: whether it
properly obtained S.B. 172 siting approval. MDS asserts that it
is entitled to summary judgment on this issue, arguing that the
siting approval obtained by Industrial Fuels &
Resources/Illinois, Inc. (Industrial Fuels) by reason of the
Illinois Appellate Court decision in Industrial Fuels &
Resources/Illinois, Inc. v. Illinois Pollution Control Board, 227
2
Ill. App.3d 533, 592 N.E.2d 148 (1st Dist. 1992) was transferred
to MDS, and therefore satisfies the requirement for proof of
local siting approval contained in Section 39(c) of the Act.
(Petitioner’s Motion for Summary Judgment at 3.)
In its cross—motion for summary judgment and response, the
Agency states that summary judgment is appropriate as to
petitioner’s first ground for relief, since there are no issues
of material fact in dispute. (Agency Cross—Motion for Summary
Judgment at 2.) The Agency asserts that it is entitled to
summary judgment on this ground, since MDS did not properly
obtain siting approval for the facility for which MDS seeks
construction permits.
BACKGROUND
In this action, MDS is seeking review of the Agency’s denial
of its application for construction permits for the construction
of a medical waste treatment facility at a site located at the
northeast corner of Center Avenue and 167th Street, in the City
of Harvey, Cook County, Illinois (site). The Agency’s denial of
the permits was based solely on the grounds that MDS failed to
obtain proper siting approval from the local siting authority
pursuant to Section 39.2 of the Environmental Protection Act
(Act).
MDS asserts that proper siting approval was transferred to
it from Industrial Fuels. Industrial Fuels had originally
petitioned the City of Harvey for siting approval for the
construction of a facility at the site which would blend
hazardous liquid and solid organic wastes for off—site use as
fuel, extract solvents from contaminated soils, and incinerate
medical wastes. On March 12, 1990, subsequent to the local
siting proceedings, the City of Harvey denied Industrial Fuels’
siting application by Ordinance No. 2647. Industrial Fuels
appealed that decision to this Board on April 12, 1990, which
appeal was docketed as PCB 90-53. On September 27, 1990 the
Board issued an order affirming Harvey’s denial of Industrial
Fuel’s siting application. (Industrial Fuels &
Resources/Illinois, Inc. v. City Council of the City of Harvey,
PCB 90—53 115 PCB 97 (September 27, 1990).) Industrial Fuels
appealed the Board’s decision to the Appellate Court, and on
March 19, 1992, the Appellate Court reversed the decision of the
Board. (Industrial Fuels & Resources/Illinois, Inc. v. Illinois
Pollution Control Board, 227 Ill.App.3d 533, 592 N.E.2d 148 (1st
Dist. 1992).)
On remand, the Board issued an order which stated in part:
We construe the appellate court’s mandate to mean that
the site location of f Industrial Fuels is considered
approved and that no further action by this Board or
3
the City Council of the City of Harvey is necessary.
The presentation of this Order to the Agency shall
suffice for purposes of Section 39(c) of the Act.
Industrial Fuels is therefore free to proceed forward
with the permitting process.
(Industrial Fuels & Resources/Illinois. Inc. v. City Council of
the City of Harvey, PCB 90-53, 134 PCB 291 June 25, 1992).)
Subsequently, MDS entered into an installment sales contract
for the purchase of the site from Industrial Fuels.
(Petitioner’s Statement of Uncontested Facts at 2.) Pending
closing, MDS entered into a lease for the Harvey site. (~~)
MDS submitted its applications for air and land permits to
construct a medical waste treatment facility at the site, which
would be based upon substantially the same terms, technical
requirements and characteristics as the facility proposed by
Industrial Fuels. On January 31, 1995, the Agency issued permit
denials to MDS, wherein it denied NDS applications for air and
land construction permits on the sole ground that MDS did not
provide proof of local siting approval. (Exhibits M & L to
Petitioner’s Permit Appeals.)
Summary judgment is appropriate where there are no genuine
issues of material fact to be considered by the trier of fact and
the movant is entitled to judgment as a matter of law. (Waste
Manaaement of Illinois, Inc. V. IEPA (July 21, 1994) PCB 94—153;
ESG Watts v. IEPA (August 13, 1992), PCB 92-54; Sherex Chemical
v. IEPA (July 30, 1992), PCB 91—202; Williams Adhesives. Inc. v.
IEPA (August 22, 1991), PCB 91-112.) Because we find there are
no genuine issues of material fact, we find that summary judgment
is appropriate on the issue of whether MDS properly obtained
siting approval for the construction of the medical waste
treatment facility. We will therefore rule on both MDS’s motion
for summary judgment and the Agency’s cross—motion for summary
judgment.
Section 39.2 of the Act gives county and municipal
governments a limited degree of control over the siting of new
solid waste disposal sites within their boundaries.
(See
M.I.G.
Investments. Inc.
V.
IEPA, 119 Ill.Dec. 533, 535; 523 N.E.2d 1
(Ill. 1988).) Under this provision, local county and municipal
boards must determine whether the applicant for a new pollution
control facility satisfies the nine statutory criteria set out in
Section 39.2. A “new pollution control facility”1 is defined to
include newly developed or constructed facilities, expansions
Effective as of December 22, 1994, pursuant to P.A. 88—681, the
definition of a “regional pollution control facility” has been amended,
deleting the word “regional”. Therefore, this opinion will use the term
“pollution control facilities.”
4
beyond the boundary of currently permitted pollution control
facilities, and receipt of special or hazardous waste for the
first time. (Section 3.32(b) of the Act.) Thus, the need for
siting approval only applies to “new” pollution control
facilities; siting approval need not be obtained for permitted
facilities, except as specified above.
When determining whether to grant a permit for the
development or construction Of a new pollution control facility,
the Agency must determine whether that proposed new facility has
obtained proper siting approval from the local siting authority.
Section 39(c) of the Act provides in relevant part:
No permit for the development or construction of a
new pollution control facility may be granted by the
Agency unless the applicant submits proof to the Agency
that the location of said facility has been approved by
the County Board of the county if in an unincorporated
area, or the governing body of the municipality when in
an incorporated area in which the facility is to be
located in accordance with Section 39.2 of this Act.
That Industrial Fuels was granted siting approval by order
of the appellate court is undisputed. MDS purports to have
purchased the siting approval for the Harvey site obtained by
Industrial Fuels, and seeks to rely on that approval in seeking
its construction permits from the Agency. MDS asserts that
siting approval pursuant to Section 39(c) of the Act is location-
specific only, not applicant-specific or facility—specific, and
that such approval is freely transferable. (Petitioner’s Motion
for Summary Judgment at 3; see
also
Petitioner’s Memorandum in
Support of Summary Judgment at 7.) In contrast, the Agency
asserts that siting approval is not only location-specific, but
also applicant—specific and facility—specific, and that MDS
therefore failed to obtain proper siting approval for its
proposed facility. (Agency Cross—Motion and Response at 10-Il.)
The question whether MDS properly obtained siting approval for
the facility for which it seeks construction permits thus turns
on whether siting approval is applicant-specific, or is
transferable from the applicantDISCUSSIONto another person.2
The issue before the Board is whether a person other than
the original siting applicant can seek a developmental permit for
a new pollution control facility. While the Act does not
directly address this question, case law and recent legislative
amendments to Section 39.2 of the Act, provide guidance. Based
2
For the purposes of this opinion, “person” is as defined at
Section 3.26 of the Act.
5
upon the following analysis, the Board concludes that the General
Assembly vested the local government with the authority to
determine whether or not a specific applicant meets the criteria
set forth in Section 39.2 of the Act so that such applicant may
seek the necessary permits to develop a new pollution control
facility within that local government’s jurisdiction. Since that
decision requires the weighing of factors specific to the
applicant before it, and for reasons set forth more specifically
below, we find that local siting cannot be transferred from
Industrial Fuels, which had the hearing before the local
government, to MDS, which did not.
In support of its position that siting approval is
transferrable, MDS cites Christian County Landfill, Inc. v.
Christian County Board, PCB 89-92, October 18, 1989 (Christian
County). In Christian County, the county board included a
condition on its siting approval requiring that any buyer or
subsequent owner of the Christian County Landfill request the
approval of the county before it could use the site. Because the
Board found that this condition addressed a future occurrence
which was not contemplated by any of the criteria, the Board
found that the county board had exceeded its statutory authority
in imposing this condition.
We find that the situation in Christian County is
distinguishable from the present case. In Christian County, the
condition imposed on the siting approval would have allowed the
local siting authority to reopen the issue of siting at a point
later in time, most importantly, including after issuance of the
permits necessary for a pollution control facility. This would
have infringed on the Agency’s permitting authority.
(See
Christian County at 8.) Moreover, the condition proposed by the
Christian County Board would have allowed the county to exceed
its statutory authority by allowing it to impose a siting
condition which could have subjected a permitted facility to the
siting process for a reason other than the two statutorily
authorized, i.e., expansion beyond its permitted boundaries or
receipt of special or hazardous waste for the first time.
In the present case, the Agency’s denial of the construction
permits does not result in the issue of siting being reopened at
a point in time after the permits have been issued. Instead, the
Agency’s denial precedes any permits having been issued for the
development, of the facility for which Industrial Fuels obtained
siting approval. Rather, the Agency denied the permits because
MDS did not provide proof that it had obtained local siting
approval along with the applications as required pursuant to
Section 39(c) of the Act.
Furthermore, the Agency was correct in its denial of the
construction permits. Section 39.2(f) the Act provides in
pertinent part that the applicant has two years from the date
6
upon which siting approval is obtained in which to make
application to the Agency for permits to develop the site. If
the siting applicant does not do so, the siting approval expires.
Industrial Fuels made no such application, and no permits have
yet been issued to the siting applicant, i.e., Industrial Fuels.
In further support of its position that siting approval is
transferrable, MDS cites Concerned Citizens v. County of Marion,
PCB 85-97 (November 21, 1985). (Petitioner’s Motion for Summary
Judgment at 3; Petitioner’s Memorandum in Support of Summary
Judgment at 10.) In that case, the Board held that sale of the
facility did not render the underlying siting proceeding before
the Marion County Board fundamentally unfair. In so doing, the
Board cited its decision in Watts Trucking Service, Inc. v. City
of Rock Island. PCB 83-167, March 8, 1984. In Watts Trucking
Service, the Board reviewed the S.B. 172 provisions of the Act in
effect at that time to determine the scope of review afforded the
local siting authority. Having examined criterion No. 2 at
Section 39.2(a) of the Act among other provisions, the Board
found that the criterion did not include the sale of the facility
to a new operator.
The Agency argues that central to the Board’s holdings in
Watts Trucking and Concerned Citizens was the fact that operator
experience and enforcement history were not part of Section
39.2(a) at that time; therefore, the Board was correct in
concluding that the local siting authority did not have the
statutory authority to review operator skill and past violations.
However, Section 39.2(a) of the Act has been amended in critical
part since Concerned Citizens and Watts Trucking Service were
decided. (Agency Cross—Motion for Summary Judgment at 24.)
Given this amendment, the Agency is correct that these decisions
are of no precedential value in support of MDS’s argument that
siting approval is transferable.
As originally adopted in S.B. 172, Section 39.2(a) of the
Act sets forth the nine criteria which the county board or the
governing body of a municipality must consider when reviewing a
siting application for a new pollution control facility,
including the following:
2. the facility is so designed, located and proposed
to be operated that the public health, safety and
welfare will be protected;
5. the plan of operations for the facility is
designed to minimize the danger to the surrounding
area from fire, spills, or other operational
accidents;
7
In 1988, Section 39.2(a) was amended to further provide
that:
The county board or the governing body of the
municipality may also consider as evidence the previous
operating experience and past record of convictions or
admissions of violations of the applicant (and any
subsidiary or parent corporation) in the field of solid
waste management when considering criteria (ii) and (v)
under this Section.
Thus, as amended, Section 39.2 creates an express statutory
right for the local siting authority to consider the operating
experience and history of the applicant when considering criteria
2 and 5 when ruling on a siting application for a new pollution
control facility. To allow the transference of siting approval
to a different person would defeat the legislative intent to
grant to local authorities this express statutory right. We
therefore find that siting approval cannot be transferred from an
applicant to another person.
As argued by the Agency, this outcome is supported by Kane
CountY Defenders v. Pollution Control Board, 139 Ill. App.3d 588,
487 N.E.2d 743 (2d Dist. 1985) wherein the court stated:
The broad delegation of adjudicative power to the
county board clearly reflects a legislative
understanding that the county board hearing, which
presents the only opportunity for public comment on the
proposed site, is the most critical stage of the
landfill site approval process.
Allowing siting approval to be transferred from an applicant
to someone else would allow that person to bypass the scrutiny of
the hearing process at the local level, and would deprive the
local siting authority of its statutorily defined right to
consider an applicant’s operational history and experience when
ruling on criteria 2 and 5. Siting approval must therefore be
considered
We
applicant—specific.
note that in the decision
3
of the appellate court in Industrial
Fuels & Resources/Illinois, Inc. v. Illinois Pollution Control Board, 227
Ill.App.3d 533, 592 N.E.2d 148 (1st Dist. 1992) the court stated:
The experts who testified on behalf of Industrial carried
impressive credentials including extensive experience with similar
facilities. Their opinions were based on facts and reasonable
assumptions. Industrial operates other, similar facilities in
different locations and therefore has a track record.
This demonstrates that the appellate court’s reversal was based in part upon
Industrial Fuel’s prior operating record.
8
CONCLUSION
We find that Section 39.2 creates an express statutory right
for the local siting authority to consider the operating
experience and history of the applicant when considering criteria
2 and 5 when ruling on a siting application. To allow the
transference of siting approval to a different person would
defeat the legislative intent to grant to local authorities this
express statutory right, allowing a person other than the
applicant to bypass the local siting process. We therefore find
that siting approval must be considered applicant-specific, and
that it cannot be transferred from the applicant to another
person.
Because MDS did not proceed through the siting process, but
rather sought to rely on the siting approval which Industrial
Fuels obtained, we hold that MDS failed to obtain proper siting
approval for the new pollution control facility for which it
sought construction permits. MDS’s motion for summary judgment
is hereby denied, and the Agency’s cross—motion for summary
judgment is hereby granted. The Agency’s January 31, 1995 denial
of MDS’s applications for land and air construction permits for
the construction of a medical waste treatment facility is hereby
affirmed.
We further find that our determination on the
transferability of siting is dispositive of all claims for relief
in this matter. The City of Harvey has a statutory right to
review a siting application from MDS, and any representations
made by the Agency to MDS do not extinguish this right.
Furthermore, we find that MDS has no property right in a permit
application based on siting approval granted to Industrial Fuels.
One seeking a permit has no vested right in the permit until a
final conclusive determination is made as to the issuance of the
permit. (County of LaSalle v. Illinois Pollution Control Board,
100 Ill.Dec. 284, 288, 497 N.E.2d 164 (3d Dist. 1986).)
Because we find our determination on the Agency’s cross—
motion for summary judgment to be dispositive of all issues in
this case, we find that there is no need for the hearing officer
to reconvene the hearing which was continued on the record on
April 1, 1995 until April 11, 1995. The hearing officer is
therefore directed to cancel that hearing. Furthermore, we find
that our decision renders moot the petitions for intervention
filed by Harvey and HACO. Finally because this matter is being
decided solely on the basis of a legal issue and no hearing will
be held, we find that no prejudice has resulted to MDS from the
Agency’s failure to timely file the record. Accordingly, MDS’s
motion to strike responsive pleadings is hereby denied.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
9
ORDER
1. Petitioner Medical Disposal Services, Inc.’s motion for
summary judgment is hereby denied.
2. Respondent Illinois Environmental Protection Agency’s cross-
motion for summary judgment is hereby granted, and the
Agency’s January 31, 1995 denial of MDS’s air and land
construction permit applications for the construction of a
medical waste treatment facility is hereby affirmed.
3. The hearing on this matter, which was continued on the
record on April 1, 1995 until April 11, 1995, is hereby
cancelled.
IT IS SO ORDERED.
Board members E. Dunham and J. Theodore Meyer dissented.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order. The Rules of the
Supreme Court of Illinois establish filing requirements. (See
also 35 Ill. Adm. Code 101.246, “Motions for Reconsideration”.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi~y,,thatthe above o inion and order was
adopted
~C~day
of
_________________
1995, by a
2
Dorothy M. 9~nn, Clerk
Illinois P~’ ution Control Board
