BEFORE
THE
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
SUTTER SANITATION, INC. and
)
LAVONNE HAKER,
Petitioners,
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles J. Northrup
Sorling, Northrup, Haima
Cullen & Cochran, Ltd.
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL
62705
John M. Heyde
Sidley Austin Brown & Wood, LLP
10 South Dearborn Street
Chicago, IL 60603
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
Christine G. Zeman
Hodge Dwyer Zeman
3150 RolandAvenue
-
P.O. Box 5776
Springfield, IL 62705-4900
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION FOR LEAVE TO FILE INSTANTER and MOTION FOR SUMMARY
JUDGMENT, copies of which are herewith served upon you.
Respectfully submitted,
~~::NVIRONMENT~P~:TI0N
AGENCY,
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)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RECE~IVED
CLEF~I’S OFFICE
AUG 102094
STATE OF ILLINOIS
P01lution Control Board
)
)
)
)
)
PCB No. 04-187
(Permit Appeal)
Respondent.
)
NOTICE
Dated: August 6, 2004
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AUG
102004
ILLINOIS AYERS OIL COMPANY,
)
Pollution Control Boa~d
Petitioner,
)
V.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
-
•Respondent.
)
MOTION FOR LEAVE TO FILE INSTANTER 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
Iii. Adm. Code 101.500 and 101.508, hereby submits this motion
for leave to file instanter a motion for summary judgment. In support ofthis motion for leave to
file instanter, the Illinois EPA states as follows:
1.
The motion for summary judgment that is the subject of this motion for leave to
file instanter was due to be filed with the Illinois Pollution Control Board (“Board”) on or before
July 30, 2004. Unfortunately, the press of work created by a number of multi-case settlements
and other pleadings due in unrelated appeals has caused this filing to be delayed.
2.
The undersigned attorney regrets the delay in this filing, and commits to ensuring
that future filings in this case will suffer the same consequence. The Petitioners should not be
unduly prejudiced here, since there is still sufficient time to complete all necessary filings to
present the matter to the Board on motions for summary judgment within the decision deadline.
PCB No. 03-214
(LUST Appeal)
1
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that this motion for leave to file instanter be granted and the Illinois EPA’s motion for
summary judgment be accepted.
Respectfully submitted,
-
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
.Kim
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: August 6, 2004
This filing submitted on recycled paper.
2
RECE WED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
AUG 10 2004
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
Pollution Control Board
SUTTER SANITATION, INC. and
)
LAVONNE HAKER,
)
Petitioners,
)
v.
)
PCB No. 04-187
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 101.5.00, 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, Sutter Sanitation, Inc. (“Sutter”) and Lavonne Haker
(“Haker”) (“Petitioners,” collectively), in that there exist herein no genuine issues ofmaterial fact,
and that the Illinois EPA is entitled to judgment as a matter of law with respect to the following
grounds. In support ofsaid 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 tojudgment as a matter oflaw. Dowd & Dowd, Ltd. v. Gleason, 181 Tll.2d 460,483,
693
N.E.2d 358, 370 (1998).
After the Illinois EPA’s final decision on a permit is made, the permit applicantmay appeal
that decision to the Board pursuant to Section 40(a)(1) ofthe Illinois Environmental Protection Act
(“Act”) (415 ILCS
5/40(a)(1)).
The question before the Board in permit appeal proceedings is
1
whetherthe applicantproves 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
(3r~lDist.
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 (3rd 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 ofproofshall be on the petitioner. Here, the Petitioners 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 ofthe
Act would occur if the permit was granted. Saline County Landfill, Inc. v. Illinois EPA, PCB 02-108
(May 16, 2002), p. 8.
III.
ISSUE
The issue before the Board is whether the Illinois EPA correctly interpreted and applied
Section 22.14 ofthe Illinois Environmental Protection Act (“Act”)(415 ILCS 5/22.14) in its review
ofa permit application submitted by the Petitioners. Morespecifically, as ofwhat date ormilestone
is the term “establish” as used in Section 22.14(a) ofthe Act to be applied whendeterminingwhether
a dwelling is or is not within the defined setback zone?
2
IV. FACTS
The facts in this case are largely undisputed, and forpurposes of this motion for summary
judgment, can be summarized as follows. On December 26, 2001, Sutter and Ray Haker entered into
a lease agreement whereby Sutter would lease aparcel ofproperty (upon which the proposed transfer
station would be located) (“Haker property”). AR, pp. 292-299.’ This lease agreement was later
amended on September 11, 2003. AR, pp. 291-297. Also on December 26, 2001, pursuant to a
provision in the lease agreement, Sutter agreed to purchase the Raker property from Haker through a
Warranty Deed Agreement. AR, pp. 3 00-209. Following initiation of transfer operations, it was
anticipated that the purchase provision would be exercised by Sutter. AR, p. 273. The parcel in
question
is approximately three acres in size and is located seven miles south of Altamont, in
Effingham County, Illinois. AR, p. 273.
-
On September 16, 2002, the Effingham County Board approved local siting approval for a
solid waste transferstation proposed fordevelopment at theHaker property. AR, p.258.2 Sometime
after the County Board approved local siting, a building describedby Sutter as a mobile home was
located onto property within 1,000 feet of the proposed facility.3 Although there may be some
dispute as to the exact date, it seems that both Sutter and the inhabitants ofthe mobile home (as of
March 18, 2004) agree that the mobile home was placed in its present location, within 1,000 feet of
1 References to the Administrative Recordwill henceforth be made as “AR, p.
.“
2 Counsel forSufferrepresented the following facts to the Illinois EPA in correspondence dated January30, 2004: Suffer
Suffer took possession of the Haker property in February 2002. In April 2002, Suffer filed its transfer station siting
application with Effmgham County. After a hearing on August 14, 2002, and a public comment period, Effingham
County approvedthe local siting approval on September 16, 2002. Following anappeal, the Board affirmedthe County’s
siting approval. At some time after September 16, 2002, Duane Stock moved amobile home onto property across the
streetfrom the transfer facility (“mobile home”). AR, pp. 232, 349.
3 An attorney representing the inhabitants of the mobile home stated in a letter to the Illinois EPA that the building
(referred to simplyas either a home or manufactured home) was set up and first occupied as a residence in October 2002,
and the current (as ofMarch 18, 2004) inhabitants moved into the home on October 1, 2003. AR, p. 93.
3
the proposed transfer station, on a date after local siting approval was issued but before the
application for development ofthe transfer station was submitted to the Illinois EPA.
On September 23, 2003, Sutter sent an application to the Illinois EPA, seeking a permit to
develop a new solid waste transfer station on the Haker property. AR, pp. 140-229. On December
12, 2003, following discussions between Sutter and the Illinois EPA, a revisedpermit application
was submitted to the Illinois EPA. AR, pp. 248-340. On March 30, 2004, the Illinois EPA issued a
final decision denying Sutter’s permit application to develop a transfer station. AR, pp. 1-2. That
final decision forms the basis for the present appeal. There are three denial points in the final
decision, but for purposes ofthis motion for summaryjudgment, only the third denial point is being
addressed. AR,p.2.
V. THE
PLAIN
LANGUAGE OF SECTION
22.14
SUPPORTS THE ILLINOIS EPA’S DECISION
This motion, and the cross-motion filed by the Petitioners, turns on the third denial point
found in the final decision under appeal. That denial point reads as follows:
Issuance of a permit forthis facilitywould violate Section 22.14 ofthe Act because
the proposed garbage transfer station would be located closer than 1000 feet from a
dwelling that was so locatedbefore the application was submitted to the Illinois EPA.
AR, p. 2. The Illinois EPA’s position as set forth in the final decision is that the existence ofthe
mobile home dwelling less than 1,000 feet from the proposed transfer station (at least as ofthe date
the permit application was submitted) creates a situation in which approval ofthe permit application
would result in a violation ofSection 22.14 ofthe Act. The parties are in agreement that the home
was in place after local siting approvalwas issued but before the permit applicationwassubmitted to
the Illinois EPA. Thus, the Board’s determination should be based upon its interpretation ofthe
language ofSection 22.14 ofthe Act to that fact pattern.
4
Section 22.14 of the Act provides as follows:
a) No personmay establish any pollution control facilityfor use as a garbagetransfer
station, which is located less than 1000 feet from the nearest property zoned for
primarily residential uses orwithin 1000 feetofany dwelling, except in countiesofat
least 3,000,000 inhabitants. In counties of at least 3,000,000 inhabitants, no person
may establish any pollution control facility for useas a garbage transfer station which
is located less than 1000 feet from the nearestproperty zoned forprimarilyresidential
uses, provided, however, a station which is located in an industrial areaof10 ormore
contiguous acres may be located within 1000 feet but no closer than 800 feet fromthe
nearestproperty zoned forprimarily residential uses. However, in a county with over
300,000 and less than 350,000 inhabitants, a station used for the transfer or
separation ofwaste forrecycling or disposal in a sanitarylandfillthat is located in an
industrial areaof 10 or more acres may be located within 1000 feet but no closer than
800 feet from the nearest property zoned for primarily residential uses.
b) This Section does not prohibit (i) any such facility which is in existence on
January 1, 1988, nor (ii) any facility in existence on January 1, 1988, as expanded
before January 1, 1990, to include processing and transferring ofmunicipal wastes
for both recycling and disposal purposes, nor (iii) any such facility which becomes
nonconforming due to a change in zoning or the establishment ofa dwelling which
occurs after the establishment ofthe facility, nor (iv) any facility established by a
municipality with a population in excess of 1,000,000, nor (v) any transfer facility
operating on January 1, 1988. No facility described in item (ii) shall, after July 14,
1995, accept landscape waste and other municipal waste in the same vehicle load.
However, the use ofan existing pollution control facilityas a garbagetransfer station
shall be deemed to be the establishment of a new facility, and shall be subject to
subsection (a), if such facilityhad not been used as a garbage transfer station within
one year prior to January 1, 1988. (Emphasis added.)
Based on the language above, and focusing on the highlighted text, the Illinois EPA’s position is that
the facts presented here support and justify the final decision.
Section 22.14(a) of the Act states in pertinent part that no person may establish a pollution
control facility for use as a garbage transfer station which is located within 1,000 feet of any
dwelling. Further, Section 22.14(b) ofthe Act states in part that Section 22.14 does not prohibit any
such garbage transferstation which becomes nonconforming due to-the establishment ofa dwelling
which occurs after the establishment ofthe facility.
Although the Petitioners may question whether the mobile home is a dwelling, the Illinois
5
EPA was in possession of information at the time ofits decision that supporting a finding that the
mobile home situated after the issuance oflocal siting approval was a dwelling. There is no specific
definition provided in the Act ofwhat constitutes a dwelling, but given that a mobile home is
recognized as a common place ofdwelling, and that the Illinois EPA was informed that the mobile
homehad been inhabited from at least October 1, 2003, through March 18, 2004 (AR, p. 90), it was
reasonable to conclude that the mobile home was a dwelling. Thus, the mobile home is a dwelling,
and all parties agree it is located within 1,000 feet ofthe proposed garbage transfer station. The
dispositive question then becomes whether the proposed garbage transfer station was established
prior to the dwelling. This is due to the exemption carved in Section 22.14(b), which prevents
noncompliance ofa facility if it is established prior to the establishment of a dwelling within the
described setback zone.
-
The Illinois EPA’s interpretation ofSection 22.14(a) ofthe Act to the facts presented is that
the dwelling in question was established prior to the establishment ofthe proposed garbage transfer
station. To reach that determination, a review of the definitions of the terms “establish” and
“establishment” is necessary.
There are guidelines to follow in matters involving statutory interpretation. The construction
ofa statute is a question of law. Krall v. Secretary ofState, 168 111. App. 3d 478, 522 N.E.2d 814
(1988). A court’s function in interpreting statutory provisions is to ascertain and give effect to the
legislative intent underlying the statute; thus, the court must look at the statute as a whole, taking
into consideration its nature, its purposes and the evil the statute was intended to remedy. Rodgersv.
Department ofEmployment Security, 186 Ill. App. 3d 194, 542 N.E.2d 168 (1989). Each word,
clause, orsentence ofa statute must not be rendered superfluousbut must, ifpossible, be given some
6
reasonable meaning. Peoria Roofing & Sheet Metal Co. v. Industrial Commission, 181111. App. 3d
616, 537 N.E.2d 381 (1989). When the statutory language is clear and unambiguous, this court’s
only function is to enforce the law as enacted by the legislature. Eckman v. Board ofTrustees, 143
Ill. App. 3d 757, 493 N.E.2d. 671 (1986). When construing a statute, the words used in the statute
must be given their plain and ordinary meanings. Land v. Board ofEducation ofCity ofChicago,
202 Ill.2d 414, 421, 781 N.E.2d 249, 254 (2002).
In this situation, the language ofSection 22.14 is clear and, reading both subsection (a) and
(b) as a whole, its meaning and intended application are clear. The terms “establish” and
“establishment” are not defined in the Act. However, there are other sources that can be used to
determine the plain and ordinary meaning ofthose terms. “Establish” is defined in the American
Heritage Dictionary as: To make firm or secure, to settle in a secure position or condition, to cause
to be recognized and accepted, to found, to make a state institution of, to introduce and put into
force, or to prove the validity or truth of. The internet version ofthe Merriam-Webster Dictionary
defines “establish” as: To institute permanentlyby enactment oragreement, to make firm orstable,
to introduce and cause to grow and multiply, to bring into existence, to put on a firm basis, to put
into a favorable position, to gain full recognition or acceptance of, or to make a state or national
institution. “Establishment” is defined as the act of establishing or the state ofbeing established.
Applying those definitions to Section 22.14, the clear meaning ofSection 22.14(a) ofthe Act
is that if a dwelling exists less than 1,000 feet from a pollution control facilityintended tobe used as
a garbage transfer station before the facility is established, then a violation of Section 22.14(a)
occurs. The relevant sequence of events here is the approval of local siting approval for the
proposed facility, the placement ofthe mobile home less than 1,000 feet from the proposed facility,
7
the submission ofa permit application to the Illinois EPA seeking approval to develop the proposed
facility, the occupancy ofthe mobile home (which may ormay not have also take place prior to the
submission of the permit application), and the issuance ofthe final decision. For purposes ofthe
Illinois EPA’s review, and now the Board’s review, the relevant fact is that the mobile home was in
place well before the final decision was issued, and in fact was in place before the peimit application
was ever submitted.
Therefore, the language of Section 22.14 must be applied here, since there is no credible
argument that the proposed transfer station was established prior to the placement ofthe mobile
home.4 The proposedtransferstation was not established prior to the placement ofthe mobile home,
as proven through the sequence ofevents and the commonly understood definitions of “establish.”
Though the proposedtransfer station was the subject ofa successful request forlacal siting approval,
that prerequisite step to filing a permit application cannot be considered tantamount to the
establishment ofthe proposed transferstation. Approval oflocal siting does not demonstrate that a
proposedfacility has been established, becauseapproval oflocal siting approvalis nothing more than
a preliminary step that must be taken in order forthe proposed facilityto become established. This
point was made in the case ofMedical Disposal Services, Inc. v. Illinois EPA, 286 Ill. App. 3d 562,
677 N.E.2d 428
(1st
Dist. 1997). In Medical Disposal, the appellate court made clear that in the
context ofpermit applications, local siting approval given pursuant to the Act is only a condition that
is required before permits can be issued. Thus, while a permit gives the holder the specified rights
therein, local siting approval only gives the specific applicant the right to apply for a permit.
Medical Disposal, 286 Ill. App. 3d at
569,
677 N.E.2d at 433. The court noted that local siting
4Agairi, it should be noted that although the dwelling here is a mobile home, the situation would be no different if a
“permanent” home with a foundation and fixed walls was built in the same time frame (i.e.,afterissuancc oflocal siting
8
approval is not a property right, and forthat matter that even permits are only privileges from which
no vested property rights attach. jç~.
The Petitioners have previously provided case law to the Illinois EPA that was argued to be
persuasive for the argument that receipt oflocal siting approval was sufficient to deem the proposed
transfer station established. AR, pp. 349-350. A review ofthose cases, although old in age, shows
that in fact the cases are more supportive ofthe Illinois EPA’s position than that ofthe Petitioners.
The first case identified by the Petitioners is Village of Villa Park v. Wanderer’s Rest
Cemetery Co., 316.111. 226, 147 N.E. 140 (1925). In Villa Park, the Illinois SupremeCourt reviewed
a matter involving the propriety ofthe establishment ofa cemetery within a distance that possibly
violated terms ofa local ordinance. The issue was whetherthe passage ofthe ordinance restricting
the establishment ofa cemeteryprohibited a cemetery that had undertaken certain steps both before
and after the passage ofthe ordinance. The court held that the nature ofthe activities taken by the
developer of the cemetery which pre-dated the passage of the ordinance resulted in the
“establishment” ofthe cemetery such that the ordinance was not applicable. Villa Park, 316 Ill. At
232, 147 N.E. at 106.
-
However, the Villa Park court’s findings and rationale actually support the Illinois EPA’s
position. The court heldthat the ordinance which restricted location ofa cemeterywas prospective
in nature, thus the question was whether the acts taken to develop the cemetery were sufficient to
find that the cemetery had been established prior to the ordinance’s effective date. The court
considered the actions taken by the developer and ruled that when a cemeteryhas been platted and
lots sold with reference to a plat, the purchasers ofthe lots acquire a vested interest in the use ofthe
premises forburial purposes, ofwhich right they cannotbe divestedwithout due process. Id. But, as
approval and before submission of the permit application).
9
the court in Medical Disposal held, the receipt of local siting approval does not result in a vested
right, and neither does the issuance ofa permit. Thatbeing the case, a court has already held that the
action specifically relied upon by the Petitioners (i.e., receipt oflocal siting approval) doesnot confer
a vested right, therefore the rationale ofthe Villa Park court cannot be relied upon to argue that the
proposed transfer station here was established as ofthe receipt oflocal siting approval.
If anything, the Villa Park case is consistent with the Illinois EPA’s position. Here, the
proposedtransfer station cannottake any pre-operational steps (i.e., develop the facility itself) unless
and until a permit authorizing such developmenthasbeen issued. The closest analogyfact-wise that
can be drawnbetweenthe Villa Park case and the present situation is that the Petitioners here cannot
take the type of steps relied on by the Villa Park court until after a permit to develop the transfer
station is issued. Until that happens, no establishment ofthe transfer station could ever take place.
This is not even a perfect analogy, since again the Villa Park court relied on the creation ofvested
rights prior to the passage ofthe cemetery ordinance, whereas no vested right will be conferredhere
even with the issuance ofa permit to develop the facility.
The second case offered by the Petitioners was Moseid v. McDonough, 103 Ill. App. 3d 23,
243 N.E.2d 394
(1St
Dist. 1968). A review ofthat case again finds that it is more persuasive for the
Illinois EPA’s position than the Petitioners’. In Moseid, the court considered an ordinance that
created a library. The issue was whether the passage of the ordinance was equated to the
establishment ofthe library, as the date the librarywas establishedhad certain tax implications. The
court decided that the ordinance in question established the library such that fees that could be
charged after establishment ofa library could be collected following the passage ofthe ordinance.
Moseid, 103 Ill. App. 3d at 30-3 1, 243 N.E.2d at 397-398.
10
But, in Moseid, the court specifically stated that “while there are numerous dictionary
definitions ofthe word “establish”, many ofthem would substantiate the ‘establishment’ ofthe
library on September 30, 1963, with the enactment ofthe County ordinancepurporting
so to do.”
Moseid, 103 Ill. App. 3d at 31, 243 N.E.2d at 398. Thus, the wording ofthe ordinance in Moseid
must have included language that stated the ordinance was itself establishing the library. The
wording ofthe resolution memorializing the approval of local siting does not in any way state that
the proposed transfer station is established as ofthe passage of the resolution. AR, p. 261.
Of course, even if the resolution did have such wording, it would still not be sufficient to
meet the standard in Moseid, since to actuallydevelop the proposed transfer station a permit was still
required ofthe Illinois EPA. In Moseid, the ordinance in question was the official declaration that
the library was established. There is no evidence in Moseid that any other offiëial permitting or
authorization was needed prior to the construction and operation of the library. Compare that
situation with the present, in which a permit issued by the Illinois EPA authorizing development of
the proposed transfer station is the official declaration that must be obtained before the facility can
actually be developed and operated. In short, the ordinance referenced in Moseid is most closely
analogous to the development permit sought by the Petitioners here. Since the developmentpermit
has not been issued, the proposed transfer station has not yet been established. Ifthe Illinois EPA
were to issue the permit, thus resulting in the establishment ofthe transfer station, it would resultin a
violation ofSection 22.14 ofthe Act since it would establish a garbage transfer station within the
setback zone prescribed by Section 22.14. The Illinois EPA’s denial ofthe permit application on
that ground alone was thus proper and justified.
11
VI. THE ILLINOIS EPA’S DECISION IS CONSISTENT WITH SECTION 22.14
AND OTHER RELEVANT PROVISIONS OF THE ACT
Further support for the Illinois EPA’s position is found when viewing the wording and
purpose of Section 22.14 of the Act in context with other relevant provisions of the Act. For
example, the Petitioners claim that the issuance oflocal siting approval pursuant to Section 39.2 of
the Act (415 IILCS 5/39.2) resulted in the establishment ofthe proposed garbage transfer station.
However, even if that were the case, consider the following hypothetical. Ifthe mobile home in
question were a house (so no argument existed regarding the mobility ofthe dwelling), and if the
house was in existence and occupied before the Petitioners ever applied for local siting approval, an
absurdresult would occur in that the local unit ofgovernment (here, the Effingham County Board)
issued local siting approval in that it would result in the very violation intended tobeprohibitecFby
Section 22.14 ofthe Act. How couldthe County Board allow that violation to happen? Simply put,
the County Board is not authorized to enforce the provisions ofSection 22.14, so that even if they
had some inkling that a violation ofSection 22.14 would occur, therewould be no legal justification
for them to deny local siting on that basis.
Section 22.14 ofthe Act is not a provision that is foundwithin the statutory provisions that
set forth the local siting approval process in the Act. In fact, Section 39.2(b) ofthe Act (415 ILCS
5/39.2(b)), which defines the parties that must receive notice ofanimpending requestfor local siting
approval, limits such parties to those who own property within 250 feet ofthe proposed facility’s
boundary. Section 22.14(a) ofthe Act creates a setback zone of 1,000 feet from a dwelling to a
garbage transfer station. Therefore, a party couldown a home within the prescribed setbackzone but
outside ofthe distance which defines parties required to receive notice of a local siting approval
application. Since the local unit of government cannot enforce Section 22.14, and since the local
12
siting approval process does not require notice to parties that may be included within the setback
zone, it would frustrate the purpose of Section 22.14 if local siting approval was tantamount to
establishment of a transfer station. A county board would be helpless to deny a siting on the basis
that Section 22.14 would be violated, and the Illinois EPA would not be ableto deny a permit on that
basis since the facilitywould already be established. The Petitioners position, taken.in this light, is
all the more untenable and weak. The Illinois EPA’s final decision was consistent with the interplay
of Sections 39.2 and 22.14 ofthe Act, and with the respective roles to be played by local units of
government and the Illinois EPA.
VII. CONCLUSION
For the reasons statedherein, the Illinois EPA respectfully requests that the Board affirm the
Illinois EPA’s decision to deny the permit application submitted by the Petitioners.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
~.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: August 6, 2004
This filing submitted on recycled paper.
13
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on August
6,
2004, I served true
and correct copies of a MOTION FOR LEAVE TO FILE INSTANTER and MOTION FOR
SUMMARY JUDGMENT, by placing true and correct copies in properly sealed and addressed
envelopes and by dep.ositing said sealed envelopes in a U.S. mail drop box located within
Springfield, Illinois, with sufficient First Class Mail postage affixed thereto, upon the following
named persons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles J. Northrup
Sorling, Northrup, Hanna
Cullen
&
Cochran, Ltd.
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL
62705
John M. Heyde
Sidley Austin Brown & Wood, LLP
10 South Dearborn Street
Chicago, IL 60603
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
Christine G. Zeman
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box
5776
Springfield, IL 62705-4900
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
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)
