BEFORE THE POLLUTION CONTROL BOARD
RECEuvED
OF THE STATE OF ILLINOIS
CLERK’S O~~F)rCE
UNITED DISPOSAL
OF BRADLEY, INC.,)
And MUNICIPAL TRUST & SAVINGS
)
BANK
as trustee under Trust 0799,
)
Petitioner,
)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PCB No. 03-23
5
(Permit Appeal)
DEC
2003
STATE OF ILLINOIS
Pollution Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Jennifer J. Sackett Pohlenz
Querrey & Harrow, Ltd.
175 West Jackson Street
Suite 1600
Chicago, IL 60604
Carol Sudman, Hearing Officer
illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION FOR SUMMARY JUDGMENT and SUPPLEMENT TO THE
ADMiNISTRATIVE RECORD, copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John J.
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 3, 2003
)
)
)
)
NOTICE
BEFORE THE POLLUTION CONTROL BOARD
CLPP~?~
~FFICE
OF THE STATE OF ILLINOIS
-
DEC
5 2003
UNITED DISPOSAL OF BRADLEY, INC.,)
S~1ATEOF ILLINOIS
And MUNICIPAL TRUST & SAVINGS
)
Pollution Control
Board
BANK as trustee under Trust 0799,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO FILE INSTANTER A
MOTION FOR SUMMARY JUDGMENT
AND
SUPPLEMENT TO THE ADMINISTRATIVE
RECORD
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, hereby requests that the Illinois Pollution
Control Board (“Board”) grant the Illinois EPA leave to file instanter a Motion For Summary
Judgment. In support of this motion, the Illinois EPA states as follows:
1.
On November 18, 2003, the Hearing Officer assigned to this matter issued an
order requiring thit the Petitioners and Respondent file motions for summary judgment on or
before November 24, 2003.
2.
Due to constraints imposed upon the undersigned attorney by several other
-
matters pending before the Board that were short-term or emergency in nature, the Illinois EPA
was not able to prepare its motion by November 24, 2003. Counsel for the Illinois EPA
contacted opposing counsel, and an agreement was reached whereby the motions would not be
due until December 1, 2003.
3.
Unfortunately, the undersigned attorney was unable to conclude the drafting of
the Illinois EPA’s motion until December 3, 2003. It should be noted that this delay is solely on
PCB No. 03-235
(Permit Appeal)
1
the part ofthe Respondent, as the Petitioners have been cooperative and patient thus far and filed
their motion for summary judgment in a timely fashion. In the interest of fairness the
undersigned attorney will not read the Petitioners’ motion until after filing of its own motion for
summary judgment.
4.
The Illinois EPA is also submitting a Supplement to the Administrative Record,
which consists ofseveral pages that were missing from the Administrative Record (one page was
miscopied, and several others were erroneously excluded).
5.
The undersigned attorney regrets this delay and believes that no prejudice will
result since the parties will still have until December 30, 2003, to file their respective responses.
This will allow for almost four full weeks between the filing of the motion and the response,
compared to the two weeks otherwise provided for in the Board’s regulations.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Board grant the Illinois EPA leave to file instanter a motion for summary
judgment and Supplement to the Administrative Record.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Jol(nJ.Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O.Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 3, 2003
This filing submitted on recycled paper.
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
0~~JCE
UNITED DISPOSAL OF BRADLEY, INC.,)
DEC
~
And MUNICIPAL TRUST & SAVINGS
)
~
2003
BANK as trustee under Trust 0799,
)
ATE OF !LLII\IOIS
Petitioner,
)
Contraj Board
v.
)
PCB No. 03-235
ILLiNOIS ENVIRONMENTAL
)
(Permit Appeal)
• PROTECTION AGENCY,
)
•
Respondent.
)
MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, 101.508 and 101.516, hereby respectfully
moves the Illinois Pollution Control Board (“Board”) to enter summary judgment in favor ofthe
Illinois EPA and against the Petitioners, United Disposal ofBradley, Inc. and Municipal Trust &
Savings Bank, as Trustee Under Trust 0799 (“United Disposal,” collectively), in that there exist
herein no genuine issues of material fact, and that the Illinois EPA is entitled to judgment as a
matter oflaw with respect to the following grounds. In support of said motion, the Illinois EPA
states as follows:
I.
STANDARD
FOR
ISSUANCE AND REVIEW
A motion for summary judgment should be granted where the pleadings, depositions,
admissions on file, and affidavits disclose no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181
Ill.2d 460, 483, 693 N.E.2d 358, 370 (1998).
After the Illinois EPA’s final decision on a permit is made, the permit applicant may
appeal that decision to the Board pursuant to Section 40(a)(1) of the Illinois Environmental
1
Protection Act (“Act”) (415 ILCS
5/40(a)(1)).
The question before the Board in permit appeal
proceedings is whether the applicant proves that the application, as submitted~to the Illinois EPA,
demonstrated that no violation of the Act would have occurred if the requested permit had been
issued. Panhandle Eastern Pipe Line Company v. Illinois EPA, PCB 98-102 (January 21, 1999);
Joliet Sand & Gravel Co. v. Illinois Pollution Control Board, 163 Ill. App. 3d 830, 833, 516
N.E.2d
955,
958 (3’~Dist. 1987), citing Illinois EPA v. Illinois Pollution Control Board, 118 Ill.
App. 3d 772,
455
N.E. 2d 189 (1st Dist. 1983). Furthermore, the Illinois EPA’s denial letter
frames the issues on appeal. ESG Watts, Inc. v. Illinois Pollution Control Board, 286 Ill. App. 3d
325, 676 N.E.2d 299
(31d
Dist. 1997).
II. BURDEN OF PROOF
Pursuant to Section 105.112(a) of the Board’s procedural rules
(35
Ill. Adm. Code
105.112(a)), the burden of proof shall be on the petitioner. Here, United Disposal must
demonstrate to the Board that approval of the permit application would not cause a violation of
the Act or underlying regulations. On appeal, the sole question before the Board is whether the
applicant proves that the application, as submitted to the Illinois EPA, demonstrated that no
violation of the Act would occur if the permit was granted. Saline County Landfill, Inc. v.
Illinois EPA, PCB 02-108 (May 16, 2002), p. 8.
III. FACTS
The facts in this case are straightforward and not in dispute. In June 1994, United
Disposal applied for a development permit to develop a transfer station to accept general
municipal refuse, demolition debris (including putrescible material), and landscape and yard
waste. Administrative Record, pp. 16~55.1 The application included United Disposal’s
statement that the proposed facility would serve only customers within the Village of Bradley,
References to the Administrative Record will henceforth be made as “AR, p.
.“
2
and therefore the proposed facility qualified as a non-regional pollution control facility. Also,
the application stated that Sections 22.14 and 39.2 ofthe Act (415 ILCS 5/22.14, 39.2) would not
apply since the facility would be a non-regional pollution control facility. AR, p. 26.
The Illinois EPA reviewed the permit application and noted in the permit reviewer’s
notes that the facility was not a regional pollution control facility and therefore that local siting
-
approval was not a prerequisite to issuing the requestedpermit. AR, pp. 10-11.
On September 21, 1994, the Illinois EPA issued a development permit to United Disposal
(Permit No. 1 994-306-DE). The permit stated that the subject transfer station was not a regional
pollution control facility, and that as a condition ofdevelopment the transfer station would not be
able to accept waste generated outside the municipal boundaries of the Village of Bradley
(“Village”). AR, pp. 1, 3.
On or about December
5,
1994, United Disposal submitted a permit application seeking
an operating permit for the transfer station. AR, pp. 88-93. The application referenced thatthe
transfer station was a non-regional pollution control facility, and that it was submitted in
conjunction with approved Permit No. 1994-306-DE. AR, p. 89. There was no request within
the application to remove or delete the special condition imposed in the development permit that
limited the service area ofthe transfer station.
On January 19,
1995,
the Illinois EPA issued an operating permit to United Disposal
(Permit No. 1994-306-OP). AR, pp. 67-73. The permit included special condition no. 9
consistent to one found in the development permit; namely, that no waste generated outside the
municipal boundary ofthe Village maybe accepted at the facility. AR, p. 69.
On March 27, 2003, United Disposal submitted another application, seeking ostensibly to
strike special condition no. 9 from the operating permit. AR, pp. 129-137. On May
15,
2003,
3
the Illinois EPA issued a decision in response to the permit application. The Illinois EPA
deemed the application to not have been filed because it failed to set forth certain information,
documents or authorizations required pursuant to Section 807.205 of the Board’s regulations
(35
Ill. Adrn. Code 807.205). Specifically, the decision stated that application failed to provide proof
of local siting approval as required pursuant to Section 39(c) ofthe Act (415 ILCS
5/39(c)).
The
decision further stated that though the application sought only to remove special condition no. 9
from the operating permit, there must also be a corresponding change to the development permit.
Supplemental Administrative Record, pp. 143-1
44~2
IV. CHANGE
IN
STATUTORY LANGUAGE
From the time ofUnited Disposal’s development permit application and submission of an
operating permit application, references in the Act to pollution control facilities were
distinguished by such facilities being defined as either a “regional pollution control facility” or a
“non-regional pollution control facility.” The use of the terms “regional” and “non-regional”
stemmed from a statutory exemption to the definition of a regional pollution control facility.
Section 3.32(a) ofthe Act
(415
ILCS
5/3.32(a)
(1994)) provided in part:
“Regional pollution control facility” is any waste storage site, sanitary landfill,
waste disposal site, waste transfer station, waste treatment facility or waste
incinerator that accepts waste from or that serves an area that exceeds or extends
over the boundaries ofany local general purpose unit ofgovernment.
Section 3.32(a)(1) ofthe Act (415 ILCS
5/3.32(a)(l)
(1994)) provided that:
The following are not regional pollution control facilities:
(1)
sites or facilities located within the boundary of a local general purpose
unit ofgovernment and intended to serve only that entity.
2
Through an oversight, the Illinois EPA’s Administrative Record in this proceeding does not include a copy of the
fmal decision under appeal (though that document is included as an exhibit to United Disposal’s petition). The final
decision, along with certain other documents erroneously left out of the record (and one page that was mis-copied),
are submitted contemporaneously with this motion for summary judgment in a separate document as a supplement
to the record. References to the Supplemental Administrative Record will hereinafter be made as, “SAR, p.
.“
4
The language of Section 3.32(b) of the Act (415 ILCS
5/3.32(b)
(1994)), which defined a
“new regional pollution control facility,” also utilized the term “regional” in conjunction with the
three defined subsets ofnew regional pollution control facilities, ion 1039.2 ofthe Act read:
;“(a) The county board of the county or the governing body of the municipality, as
determined by paragraph (c) of Section 39 of this Act, shall approve the site location
suitability for such new regional pollution control facility only in accordance with the
following criteria
... .“
(See: Ill. Rev. Stat., 1983, ch. 111 Y2, par. 1039)
In July 1993, a federal district court in Illinois ruled that the use ofthe term “regional” to
differentiate between facilities that have limited or unlimited service areas was unconstitutional.
In recognition of that court ruling, effective on December 22, 1994, the Illinois General
Assembly amended affected sections in the Act. The “regional” terms that preceded the phrase
“pollution control facility” were stricken from the Act, as was the exemption found in Section
3.32(a)(1) ofthe Act. This is the way that we do it.
IV.
ISSUE
This action involves a transfer station that Petitioners requested to have permitted for
development and operation in 1994 and 1995. The issue before the Board is whether the
application submitted by United Disposal to the Illinois EPA would result in a violation if
approved. As a corollary, there is a question as to whether the Petitioners must comply with
Section 39.2 of the Act (415 ILCS 5/39.2) and submit proof of local siting approval as a
condition precedent to the Illinois EPA issuing a permit allowing the facility to expand its
service areabeyond that area identified in Petitioner’s permit.
V. ARGUMENT
The permit application submitted by United Disposal, if approved by the Illinois EPA,
would result in a violation of Section 39(c) of the Act. The Act is clear in mandating that no
permit for the development or construction ofa new pollution control facility may be granted by
5
the Illinois EPA unless a permit applicant submits proof to the Illinois EPA that the location of
said facility has been approved by the governing body ofthe municipality in which the facility is
to be located in accordance with Section 39.2 of the Act. Though United Disposal captioned its
application as one seeking to modify its operating permit, in fact it must be considered as an
application requesting a modification ofits development permit. The application seeks a change
that would result in a new pollution control facility, and therefore proof oflocal siting approval
is needed before a permit may be issued.
A. United Disposal’s Transfer Station Is A Pollution Control
Facility
There is no doubt that United Disposal’s transfer station meets the definition of a
pollution control facility as that term is defined in Section 3.330(a) of the Act (415 ILCS
5/3.330(a)).
By the terms of its development and operating permit applications, the facility is
one that transfers materials defined and acknowledged as waste. AR, pp. 17, 88. The permits
issued by the Illinois EPA to develop and operate the facility as a transfer station also identify
the facility as a transfer station that accepts waste. AR, pp. 1-7, 67-73.
Accordingly, any potential modification or change in the facility’s development or
expansion ofthe facility may result in the pollution control facilityrightfully being considered as
a new pollution control facility.
When the transfer station was first proposed, United Disposal’s application stated it
wished the transfer station to be considered as a non-regional pollution control facility. The
application noted that it would be limiting its service area to the municipal boundaries of the
Village, and therefore would not be subject to local siting approval or any statutory setback
requirements imposed by the Act. AR, p. 26.
6
As requested in the development permit application, on September 21, 1994, •the Illinois
EPA approved United Disposal’s application such that the facility would haves a limited service
area. Special condition no. 9 in the development permit imposed the limitation on the service
area for the transfer station. AR, p. 3. Later, in early December 1994, United Disposal
submitted its application for an operating permit for what it continued to characterize as a non-
regional pollution control facility. AR, p. 89.
On January 19, 1995, after the effective date of the deletion ofthe term “regional” from
the phrase “regional pollution control facility” as found in the Act, the Illinois EPA issued an
operating permit consistent with the application submitted by United Disposal. The operating
permit did not refer to the facility as a non-regional pollution control facility, but maintained the
special condition limiting service area since that condition was an element of the development
permit. United Disposal did not appeal any conditions imposed in either its development or
operating permit.
-
B. United
Disposal’s Permit Application Was
For A New Pollution Control Facility
In the documents submitted by United Disposal as part of its permit application that led
to the final decision now under appeal, United Disposal stated that it seeks a modification to its
operating permit. AR, p. 129. The application stated that the applicant seeks only the deletion of
special condition no. 9 from the operating permit (which imposes the limited service area); the
application purported to seek no modification to the physical structure or property boundaries of
the currently permitted facility. j4.
Those statements notwithstanding, the permit application dated March 27, 2003, is in fact
and law not a request to modify United Disposal’s operating permit. It is the position of the
Illinois EPA that given that the special condition described in the permit application is a
7
condition that was imposed in and carried over from the development permit for the transfer
station, the special condition must be stricken from both the development and operating permit.
By analogy, consider a facility developed as a waste treatment facility that would not
accept any hazardous waste. Such a limitation in the facility’s operations would first be noted as
a special condition in its development permit and later carried over into the operating permit for
the facility. Ifthe permitted owner/operator ofthe facility later sought to accept hazardous waste
for the first time, it could not do so by simply by asking to have the special condition in the
operating permit removed without any similar modification to the development permit. To do so
would clearly bypass the scope and intent of Sections 3.330(b) and 39(c) of the Act (415 ILCS
5/3.330(b), 39(c)), which provide that certain changes to a facility render it a facility that must
undergo the local siting approval process.
Since Section 39(c) of the Act only requires local siting approval prior to issuance of
development permits (and not operating permits), it would be nonsensical to nonetheless allow a
facility to sidestep local siting requirements by asking to simply change a term or condition in its
operating permit and to ignore the continued existence of such a term or condition in its
development permit.
Section 3.330(b) ofthe Act provides as follows:
A new pollution control facility is:
(1)
a pollution control facility initially permitted for development or
construction after July 1, 1981; or
(2)
the area of expansion beyond the boundary of a currently permitted
pollution control facility; or
(3)
a permitted pollution control facility requesting approval to store, dispose
of, transfer or incinerate, for the first time, any special orhazardous waste.
8
Subsection (b)(l) ofSection 3.330 ofthe Act was drafted in conjunction with subse~ctions
(b)(2) and (b)(3). Therefore, subsection (b)(1) does not stand alone. Any interpretation or
construction ofsubsection (b)(1) must consider the provisions of Section 3.330(b) as a whole.
The primary goal of statutory construction is to ascertain and give effect to the intent of
the legislature and the most reliable indication ofthe legislature’s intent is the plain language of
the statute itself. A court must examine the language as a whole and consider each part or
section in connection with every other part or section. Where the legislature uses certain words
in one instance and different words in another, the legislature intends different results. A statute
must be construed so that no word or phrase is rendered meaningless. Northwest Diversified,
Inc. v. Mauer, 341 Iii. App. 3d 27, 35-36, 791 N.E.2d 1162, 1168-1169 (1st Dist. 2003).
What is noteworthy about subsection (b)(l) is the fact that the phrase “pollution control
facility” within the subsection is not preceeded by the phrase “currently permitted” nor
“permitted” which are included within the other subsections. This indicates that when drafted,
the General Assembly was distinguishing between “initially permitted” facilities after July. 1,
1981, and “currently permitted” facilities (i.e., facilities permitted as of the present time). The
question becomes, is it important that a “currently permitted” facility could have been permitted
prior to or after the date ofJuly 1, 1981?
This question centers on why the General Assembly chose to distinguish between
“permitted” and “initially permitted” facilities. Had the General Assembly intended for a
pollution control facility permitted after July 1, 1981, to always be a “new” pollution control
facility, the drafters could have provided within subsections (b)(2) and (b)(3) that local siting
approval is required for a pollution control facility permitted prior to July 1, 1981, since by
application, a facility permitted following that date was already a “new” pollution control
facility.
Also, the legislature could have provided that a pollution control facility requesting to
expand its boundary required local siting approval instead of limiting that subsection’s
application to “currently permitted” facilities. Thus, facilities initially permitted after July 1,
9
1981, could, and do, fall into subsection (b)(2) for review. As drafted, therefore, one would, infer
that the provision of subsection (b)(2) applies to “currently permitted” facilities whether
permitted prior to or after July 1, 1981.
Put simply, a “currently permitted” facility need only provide proof of local siting if it
were• to request an expansion or request the right to accept special or hazardous waste for the first
time. If subsection (b)(1) was to be read that a facility “initially” permitted after July 1, 1981,
was
always
a “new pollution control facility,” then subsections (b)(2) and (b)(3) would be
unnecessary as applied to those facilities. Therefore, subsection (b)(1) applies when an applicant
files an initial application forpermitting a pollution control facility after July 1, 1981.
This conclusion is further bolstered by the Board’s holding in Waste Management of
Illinois, Inc. v. Illinois EPA, PCB 94-153 (July 21, 1994). In Waste Management, the Board
reviewed an Illinois EPA denial of a permit application for modification of a landfill site. The
facility received its original local siting approval in 1986 and received approval again in 1989
when the original owner filed for an expansion ofthe site. The proposed final design caused the
contours to be lower in some areas and higher in others as compared to the original permitted
designs approved by the Illinois EPA in 1990. However, the proposed modification would not
increase the site’s capacity and, in fact, the actual capacity would be decreased. The issue under
review was whether the change in landfill contour and design proposed fell within the definition
of “new regional pollution control facility.”
The Waste Management decision ultimately hinged on a finding that the proposed
redesign did not constitute an “expansion beyond the boundary ofa currently permitted pollution
control facility” within the meaning ofSection 3.33 0(b) ofthe Act. Ifa pollution control facility
that was “initially permitted” for development or construction after July 1, 1981, was always a
“new pollution control facility” this review would not have taken place.
Therefore, Section 3.330(b)(1) should not be construed to provide that all pollution
control facilities permitted after July 1, 1981, need to provide siting approval for every
10
modification. Section 3.330(b)(1) provides that the applicant seeks a “new pollution control
facility” if it is filing an “initial” permit application after July 1, 1981.
The Illinois General Assembly created a regulatory scheme for determining when a
permit applicant subject to Section 39 of the Act must also comply with Section 39.2 of the Act.
Any “new pollution control facility” requesting a development permit must comply with Section
39.2 pursuant to the mandates of Section 39(c) of the Act. A facility is a “new” facility if it falls
within the intended scope ofSection 3.330(b)(1), (b)(2) or (b)(3) ofthe Act.
First, a facility is “new” if it is initially permitted for development after July 1, 1981.
Moreover, at the time of enactment of Section 3.330(b), the General Assembly recognized that
some facilities were “currently permitted.” As a result, the General Assembly drafted subsection
(b)(2) and (b)(3) to control siting approval for these “grandfathered” facilities. Grandfathered
facilities permitted before July 1, 1981 are required to provide proof oflocal siting approval if
the facility: (1) expanded its boundaries; or (2) requested to accept special ofhazardous waste for
the first time. Later, as “initially permitted” sites attempted to expand their boundaries, Section
3.330(b) created a separate category of a “new” facility in situations in which a facility was
initially permitted for development after July 1, 1981 and the facility requested the ability to
modify its development permit to: (1) expand its boundaries; or (2) request the right to transfer or
manage special or hazardous waste for the first time.
United Disposal’s transfer station was not permitted prior to July 1, 1981. Thus, the
facility is not grandfathered into Section 3.330(b) of the Act. The Petitioners’ March 2003
permit application demonstrates one thing on its face, that is, United Disposal wishes to engage
in the business of waste transfer, after the date of July 1, 1981, without receiving local siting
approval. To date, the Petitioners have not received local siting approval. Legislative intent
derived from the express language of Section 3.330(b) of the Act mandates that all pollution
control facilities initially developed after the date of July 1, 1981, submit proof of local siting
approval pursuant to Section 39.2 of the Act.
11
The statutory scheme (later deemed unconstitutional) in place at the time of lJnited
Disposal’s receipt of its development permit allowed the facility to be permitted as a facility
exempt from the definition of a regional pollution control facility. Therefore, local siting
approval was not a consideration. The transfer station has never received a development permit
as either a regional pollution control facility or a pollution control facility. Given that
modification ofthe development permit to strike the condition imposing a limited service area
would require a request for a development permit to that end, and such a development permit
would be related to a pollution control facility (as the facility now meets no exemptions), in
effect the March 2003 permit application sought an initial development permit for a pollution
control facility after July 1, 1981.
C. United Disposal’s Transfer Station Is Not Grandfathered
Out Of Local Siting Approval Requirements
-
As noted above, the District Court for the Southern District ofIllinois ruled in the case of
Tennsv, Inc. v. Gade, 24 ELR 20019 (S.D. Ill.) (July 8, 1993), that the framework ofa permitting
system involving regional and non-regional facilities was unconstitutional. Following the court’s
decision, the General Assembly amended the Act to strike the offending terms and procedures.
Looking to those amendments to the Act, it is are clear that the General Assembly did not intend
to “grandfather” facilities that were currently permitted out of the potential requirement of
having to obtain local siting approval.
The definition of “Regional Pollution Control Facility” appeared in the Act in 1994 at the
time of issuance of the development permit to United Disposal as Section 3.32(a) of the Act.
Upon review in the context of “trash train” litigation, the Tennsv court found Sections
3.32, 22.14(a) and 39.2 ofthe Act unconstitutional. In Tennsv, the plaintiff argued that Section
22.14(a) restricted the location of a “regional” pollution control facility, but did not restrict the
location ofa facility that did not fall within the definition of a regional pollution control facility.
The plaintiff’s argument highlighted the fact that the Act established a statutory scheme that
distinguished between facilities located outside the geographical boundaries ofa general ‘purpose
12
unit of government and those which were not so located. This scheme was alleged to~be in
violation of the “dormant” Commerce Clause of the United States Constitution that prohibits
States from advancing their own commercial interests by curtailing the movement of articles of
commerce, either into or out of the state. In ruling, the Tennsv court reasoned that the State
failed to advance any argument that municipal solid waste generated outside the boundaries of
any local general purpose unit of government posed any different health risk to the public than
municipal solid waste generated locally.
Although the holding in Tennsv is limited to a finding that Sections 3.32, 22.14(a) and
39.2 ofthe Act were unconstitutional as applied to interstate municipal solid waste, it was likely
that if presented with the appropriate fact situation, a court would find these provisions
unconstitutional on their face. More importantly, with regard to transfer stations, the Tennsv
ruling mandated only that the General Assembly could not distinguish betweenwastes generated
from differing sources. The court did not intimate that the State was precluded, on constitutional
grounds, from delegating to units of local government the authority to render, based on ~set
criteria, decisions on location ofpollution control facilities.
Following Tennsv, the General Assembly amended the Act to exclude the term
“regional.” In amending the Act in conformance with the District Court’s opinion, members of
the ~
General Assembly debated the issue of whether or not facilities would be “grand
fathered” with regard to the provisions within Section 39.2 ofthe Act.
On December 1, 1994, in floor debate, Senator Welch stated:
“...
Senator Karpiel, according to my analysis, this bill is going to grandfather in
facilities permitted for development or construction before January 1, 1994,
meaning that they won’t have to follow any ofthe nine siting requirements under
the siting requirements ofSenate Bill 172.”
Senator Karpiel (Sponsor ofHouse Bill 1594) responded in the negative stating:
“I’m sorry, Senator Welch, according to my staff and according to what I know
about the bill, there’s no grand fathering in.”
13
Senator Welch replied:
“Yes....”
Following a break, SenatorKarpiel clarified and continued:
“...
let me just go through this again this legislation just simply changes the
siting legislation in Illinois for landfills, transfer stations, other pollution control
facilities, to take out the word “regional.”
...
A city or a county or any local
government can still have a local facility that takes in only their waste, but under
the new language now, it will have to go through the siting process, just as a
multi-unit government facility has to.
Senator Welch responded:
“...
there is a amendment to the prior bill that changed the wording, “After the
effective date of this amendatory Act or 1983(sic 1993).” That was changed to,
“After January 1, 1994.”
That language allows a facility to avoid the
requirements for local siting. How, is it your assertion here that the legislative
intent in that change ofthe date is not to allow any other facilities to escape siting,
that was merely done to comply with a
—
with a court decision?”
Senator Karpiel again clarified stating:
“...
it was a technical change. The intent is to not allow any siting before that
date, and as a matter of fact, it wouldn’t
—
there is not time for that to happen
anyway.”
Public Act 88-68 1 (House Bill 1594 as signed by the Governor) amended Sections 3.32,
22.14 and 39.2 ofthe Act and became effective on December 22, 1994. This legislation deleted
the term “regional” from Sections 3.32 and 39.2, as well as amended Section 22.14(b) to provide
that the Section did not prohibit any such facilitythat was operating on January 1, 1988.
Had the General Assembly intended to “grandfather” facilities such as Petitioners’ out of
the requirement of seeking local siting approval and thus considered such facilities to be
“currently permitted” facilities under Section 3.330(b)(2) or (b)(3), the General Assembly surely
would have amended Section 22.14(b) (garbage transfer stations) to insure that old non-regional,
pollution control facilities which by operation oflaw became regional would not be required to
meet setback requirements.
14
It is apparent from the debate above, as well as the chosen amendments to Sections-3.32,
22.14 and 39.2 of the Act, that the General Assembly did not intend for facilities to be’
“grandfathered” into local siting. Thus, the Board should not find that United Disposal’s transfer
station is “currently permitted” under Section 3 .32(b)(2) or (b)(3).
D. United Disposal’s Facility May Be Subject To Section 3.330(b)(2) Of The Act
In the alternative, if the Board does conclude that the transfer station is currently
permitted, in the alternative Section 3.3 30(b)(2) of the Act also merits consideration and
application to the present situation. That subsection provides that a new pollution control facility
is an area of expansion beyond the boundary of a currently permitted pollution control facility.
As stated above, that section only applies to facilities that are considered to be pollution control
facilities with a permit. The United Disposal transfer station did not receive a development
permit as a regional pollution control facility or as a pollution control facility.
-
However, given that the statutory amendments striking the term “regional” were effective
in between the time that United Disposal submitted its application for an operating permit and
the date that the Illinois EPA issued the operating permit, there is a question as to whether the
facility received an operating permit as a pollution control facility. The factual and legal
peculiarities ofthis case are likely one of first impression to the Board, and the possibility that a
facility could receive a development permit as a facility exempt from the requirement of local
siting approval and then receive an operating permit as a facility that would otherwise be subject
to local siting approval is certainly unusual. But that may be the case here. If so, and if the
Board decides that for some reason Section 3.330(b)(l) of the Act is not applicable, then the
Illinois EPA believes that Section 3.330(b)(2) should be reviewed.
There is no doubt that United Disposal did not seek a physical change to its facility. But
the Board has noted in several cases that physical expansion of boundaries are deserving of
attention since such changes lead to the possibility ofincreased capacity. In Waste Management,
the Board stated that to expand the boundaries ofa landfill, whether vertical or laterally, in effect
increases its capacityto accept and dispose ofwaste. Waste Management, p. 3. Acceptance and
15
disposal of waste is the business and purpose of a landfill; similarly, acceptance and trans~ferof
waste is the purpose ofa transfer station. In this situation, there is little doubt that removing the
service area limitation on United Disposal’s transfer station would in effect increase the facility’s
ability to accept and transfer waste since it would be open to a much larger service area.
In Saline County Landfill, the Board found that there was a reasonable likelihood that the
design change being contemplated that led to the permit denial would substantially alter the
nature and scope ofthe expansion that had been otherwise earlier approved by the County Board.
The Board contrasted that with a holding in a different case that no additional siting would be
needed when a facility is going to be substantially the same as originally proposed. Saline
County Landfill, p. 13.
Here, United Disposal has never received local siting approval, and therefore has never
had to undergo any type of scrutiny by the local unit of government and interested members of
the public. The change being contemplated by United Disposal to dramatically expand its
service area would no doubt result in a facility substantially different than what was originally
proposed. The expansion would not be of a physical nature, but would go to the types of local
siting criteria the Board has noted in past cases that trigger an “expansion” so as to require local
siting approval. IfUnited Disposal were not required to undergo local siting approval, it would
be given a windfall ofnever having been subject to that process, never having been specifically
grandfathered out ofthat requirement, and having gone from a small-scale operation to a much
larger one without any attendant need to obtain local siting approval. From a policy and legal
standpoint, that scenario is inconsistent with the language and purpose of Sections 3.330(b) and
39(c) ofthe Act.
‘/1. CONCLUSION
The permit application submitted by United Disposal in March 2003 on its face sought
only a modification to an operating permit, but given that the modification involved the removal
of a key special condition that was first imposed in a development permit, it is impossible to
remove the condition from the operating permit without also removing the condition from the
16
development permit. Due to the specific factual and legal background here, making such an
amendment to the development permit in this situation results in United Disposal seeking a
development permit for a new pollution control facility, thus invoking the requirement of local
siting approval. This requirement is imposed either through the consequence of the transfer
station, a new pollution control facility, being initially permitted for development after July 1,
1981. In the alternative, the proposed change in the facility’s operations may rise to the level of
an expansion such that Section 3.330(b)(2) ofthe Act is applicable.
The Petitioners no doubt are taking the position that the Illinois EPA is somehow
punishing the applicants by requiring local siting approval as a consequence of the facility first
having been permitted under a now-invalid system. However, the Petitioners were the entity that
sought the development and operating permit now in effect, and there is nothing unconstitutional
about a permit that limits the service area ofthe facility. What was deemed unconstitutional was
the State using the distinction of a service area to not require some types offacilities to undergo
local siting approval. Here,, if the Petitioners have their way, they will have received a
development and operating permit (for a limited service area but done so at their own request)
for a waste transfer station without having first received local siting approval. Then, the
Petitioners would be able to receive an operating permit that removes the limited service area
condition again without having to undergo local siting approval. In effect, United Disposal
would have utilized a change in the statutory framework of permit issuance to allow them to
completely avoid the local siting process that all other similarly situated facilities would be
required to undergo.
Since the Petitioners’ permit application did not prove that no violation of the Act would
result if the application were granted, and since in fact approval ofthe application would result in
a violation ofSection 3 9(c) ofthe Act, the Illinois EPA respectfully requests that the Board issue
an order affirming the Illinois EPA’s final decision under appeal.
17
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Kyle N. Davis (Of counsel)
Assistant Counsel
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 3, 2003
This filing submitted on recycled paper.
Johfr’J. Kim
Assistant Counsel
Special Assistant Attorney General
18
BEFORE THE POLLUTION CONTROL BOA
OF THE STATE OF ILLINOIS
LERKS OFFICE
UNITED DISPOSAL OF BRADLEY, INC.,)
And MUNICIPAL TRUST & SAVINGS
)
STATE OFILLINOIS
BANK as trustee under Trust 0799,
)
~~~lUtiOnControl Board
Petitioner,
)
v.
)
PCB No. 03-235
ILLiNOIS ENVIRONMENTAL
)
(Permit Appeal)
PROTECTION AGENCY,
)
Respondent.
)
SUPPLEMENT TO THE ADMINISTRATIVE
RECORD
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 105.212, hereby files this’ Supplement to the
Administrative Record (“Record”) ofthe Illinois EPA’s decision in this matter. An original and
requisite number ofcopies ofthis Record are herewith filed with the Board, the assigned Hearing
Officer, and the Petitioner.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
et
John .Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 3, 2003
1
generated within the Village of Bradley c~nbe accepted at it.
2.
The special conditions of the permit letter for Permit No. 1 994-306-DE were
adapted from Permit No. 1 994-008-DE/OP for the transfer station at the D&L
Landfill.
CJL~rad~ey.trf~94-3O6’ievnotes
Page No. 2 of 2
126
~ C
C’~
e~
C~D~ç
~iUag~ot
~ourbonnai~
700 Main Street N.W. Bourbonnais, Illinois 60914
(815)
937-3570
Fax
(815)
937-3467
April 3, 2003
SAS
Illinois Environmental Protection Agency
Bureau of Land, Permit Section (#33)
1021 N. Grand Avenue East
P.O. Box 19267
Springfield, Illinois 62794—9276
Re: Application for Permit to Manage Waste (LPC-PA16)
United Disposal
of
Bradley, Inc.
Site number: 0910200013
To Whom It May Concern:
The Village of Bourbonnais is in receipt of the Notice of
Application for Permit to Manage Waste (LPC-PA16) regarding tinited
Disposal of Bradley, Inc. The Village of Bourbonnais supports the
request by United Disposal of Bradley to revise condition number 9
on permit 1994—30-OP to delete the sentence stating “njo waste
generate outside the municipal boundaries of the Village of
Bradley may be accepted at this facility.”
Sincerely,
-
Robert Latham
Mayor, Village of Bourbonnais
cc: Rep. Phil Novak
Sen. Debbie Halvorson
Hon. Ed Smith
Hon. Karl Kruse
Hon. Bruce Clark
Hon. Don Green
Hon. Gerald Balthazor
Hon. Norm Grimsley
140
NOV-17—2003 12:05
NOV—17—2003 12:03
4pri tO, 2003
217782980?
Querrey
&
Harrow
a
Dønald B. Green
Mayar
City Elall 385 EastOak Street
1cznkat~
IlTbioLs
6090J
(815)
933-0500
—
Pac
(825) 936.3619
wjb site;
www.ci,knnhaketfl.us
-.
~
-
- —~
JOZ1 N. Oxand
Avenue East
P.O. Box 19276
Spring±ield,illinois62794-9276
RE:
Site
Jdertiitication # 09102200013
UnIted
Disposal ofBzadley, Inc.
20002. Liberty
Bradley, Illinois
Dear
Sirs:
Please be advised that the City ofKankakee is in support oftheUnited
Disposal of
Bradley, Inc.
application
to
revise condition #9
on their
pentit
1994-30-OP. The
City Council of Kanlcakce,
Illinois,
on
Api-il 772003, passed
a
resolution,
in support ofthat aetiot..
cc:
UnIted
Disposal
of
Bradlcy.
Inc.
Enclosure
D~G~ns
217782980?
312 540 0578
P. 03/04
P. 03/04
Donald E. GTeen
Mayor
141
NOV—17—2003 12:05
2177829807
NOV—17—2003 12:03
Querrey
&
Harrow
3125400578 P.04/04
RESOLUTION
NO.
2003-09
OFThE CITY
or
ICANKMCEE, ILLINOIS
\VH~I&EAS,
United Disposal of
Bradley, Inc. has
applied for a supplemental
operating
permit to
the
Environmental Protection Agency concerning its operation of the tansfer station
located on Liberty
StreetIn the
Village
ofBradley, Illinois; and,
WHEREAS,
the Village ofBradley
has adopted a
resolution
whereby
it supported the
request
ofUnited
Disposal
of
Bradley,
inc. to amend
its operating
pezmit
and
to
repeal condition
numbernine
of
the
operating
permit of
United Disposal
of
Bradley, Inc.; and,
WEREAS~the City
ofKankakee has been
rçqueste4 toflupport
the efforts
by
United
Disposal
of
Bradley. Inc. to obtain a supplemental operating permit; and,
WHEREAS,
the City ofICankakee is
in
support ofthe
unanimous resolution adopted
by
the
Village ofBradley on March 24,
2003.
NOW,
ThEREFORE,
BE IT
RESOLVED by the Mayor
and
City Council ofthe City
of
Kankakee that
it endorses the resokdon
of
the
Village of
8radiey and
supports the
request
of’
United Disposal ofBradley, Inc. to amend its operating permit to repeal condition number nine
ofthe operating permit of’ United Disposal ofBradley,
Inc.
AYES:
NAYS:
ABSTAIN:
____
ABSENT:
r 2
4I2
Donald K Green, MayQt
ATTEST:
Anjan4~Dumu,CityClerk
TOTAL P.04
142
TflT~I P P4
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
1021
NORTH C~NDAvENUE EAST,
P.O. Box
19276, SPRINGFIELD, ILLINOCS
62794-9276
JAMES
R.
TI-loMPsoN CENTER,
100
WEST RANDOLPH, SUITE
11-300,
CHICAGo, ft 60601 -
Roo R.
BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIREcT~R
217/524-3300
Certified Mail
May 15, 2003
7099 3400 0014 9526 2232
7099 3400 0014 9526 2249
Owner
Operator
Municipal Trust & Savings
Bank
United Disposal ofBradley, Inc.
As
Trustee under Trust 0799
Michael Watson, President
Contact: Merlin Karlock
1000 E. Liberty
P.O. Box 146
Bradley, Illinois 60915
.Bourbonnais, Illinois 60914
Re:
0910200013--Kankakee County
United Thsposal ofBradley~Inc.
Date Application Received: March 31, 2003
-
LogNo. 2003-101
Permit File
Dear Mr. Karlock
and
Mr. Watson:
This letter responds to the application for permit to modi~ithe operating permit you submitted on
the date shown above.
The subject application for permit is deemed not to have been filed because it fails to set forth.
information, documents or authorizations as required pursuant to Title 35, Illinois Adminisnative
Code (hereinafter
35
flI. Adm. Code), Section 807.205. This action may be considered,a denial
for purposes ofreview pursua~1tto Section 40 ofthe Illinois Environmental Protection Act (Act)
(415 ILCS 5/40).
Section 807.205(f) of35 Iii. Adm. Code states that an application for permit shall not be deemed.
filed Until the -Illinois EPA has received all information, documents
and
authorizations in the
form
and with
the contents required by the
Part
807 rules.
The following deficiency is noted at this time:
1.
You failed to provide proofof local siting approval as required pursuant to Section 39(c)
ofthe Act (415 ILCS 5/39(c)). Section 807.207(a) provides in part that the Illinois EPA
shall not grant any permit unless the applicant submits adequate proofthat the solid waste
management site will be developed, modified or operated so as not to cause a violation of
the Act or
Part
807 rules. Your application only addresses the revision of your operating
permit. An application for supplemental permit to revise the operating permit is not the
—
4)112
North Main
Street.
Rockiord. IL 6 103 —815) 987-7760
DEs PL~j’.t3— 9511 W. Harrison St.. Des P(aines. IL 60016
4-~294-4000
—
595
South State,
E131n,
IL 60)23 —(847)608-313)
• ?EOE~\
— 3413 N. Universty
St..
Peor~.IL 616.L —309
693-3463
;f
L.~’.D- Pto~— 7620 N. University St.. Peoria. IL 61614— (309) 693-3462 • C~.-.~PA;cr~
— 2123 South First Street,
Ch~rnp~ign.IL
6)32: — 2
273-58:0
~ \G IELD — 4)00 S Si~thStreet Rd sorrngrield IL 62706 —(2)7) 786 6892
CULL ~
L~
— 2009 ‘~IaI)S~r—~CoIIin~e IL 62234 —o
i—o 5)20
143
Page 2
appropriate method to remove the condition in question (i.e., Condition #9 ofthe
operating permit), since .there must also be a corresponding change to the development
~E) permit. The nature ofthe request made in the permit application requires that the
applicant provide proof oflocal siting approval as described in Section 39.2 ofthe Act
- .
‘(415
,ILCS 5/39.2).: The resolution from the Village ofBradley included in your
application does not conform to the procedures in Section 392 ofthe Act and therefore is
not sufficient proofof siting approval as required by Section 39(c) ofthe Act.
Due’to the deficiency noted above the
Illinois EPA has not
performed a technical review ofthe
application. The technical reviewrnay reveal that the Illinois EPA needs additional information,
or result in denial ofpermit.
Within 35 days afterthe date ofmailing ofthe Illinois EPA’s final decision, the~applicantmay
petition for a hearing before the Illinois Pollution Control Board to contest the decision ofthe
Illinois EPA, however, the 35-day period for petitioning for a hearing may be extended for a
period oftime not to exceed 90 days by written notice provided to the Board from the applicant
and
the Illinois EPA
within
the 35-day initial appeal period.
If you wish to seek an extension ofthe time period forpetitioning for a hearing, send a request
for such an extensionto John Kim, Assistant Counsel, Illinois EPA, 1021 North Grand Avenue
East, P.O. Box 19276, Springfield, Illinois 62794-9276.
Any
resubmission ofthe permit application should be a complete application without referencing
previous submissions.
Any
questions or requests for assistance may be directed to Sallie
Springer ~t 217/524-3293 orthe address above.
Sincerely,
.
.
Joyce L. Mume, P.E.
Manager, Permit Section
Bureau ofLand
JLM:SAS:bjh\032304s.doc
cc:
John Bevis, Kankakee County Health Department
144
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 3, 2003, I served true
and correct copies ofa MOTION FOR SUMMARY JUDGMENT and SUPPLEMENT TO THE
ADMINISTRATIVE RECORD, by placing true and correct copies thereof in properly sealed
and addressed envelopes and by sending said sealed envelopes via U.S. Mail First Class delivery,
to the following named persons:
Dorothy M. Guim, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Jennifer J. Sackett Pohlenz
Querrey & Harrow, Ltd.
175 West Jackson Street
Suite 1600
Chicago, IL 60604
ENVIRONMENTAL PROTECTION AGENCY,
JohnT. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
