RECE~VED
1. PROOF OF SERVICE

RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

OF THE STATE OF ILLiNOIS

AUG

162004

SUTTER SANITATION, INC. and

)

STAJE OF

ILLINOIS

LAVONNE HAKER,

)

PoHut~onControl Board

)

Petitioners,

)

Case No. PCB 04-187

)

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal

land)

PROTECTION AGENCY,

)

Respondent.

)

PETITIONERS SUTTER SANITATION AND LAVONNE HAKER’S

RESPONSE TO ILLINOIS EPA’S MOTION FOR SUMMARY JUDGMENT

NOW COMES Petitioners, Sutter Sanitation Inc., and Lavonne Haker (collectively“Sutter”)

by and through their attorneys, Sorling, Northrup, Hanna, Cullen & Cochran, Charles J. Northrup,

of counsel, and pursuant to Illinois Pollution Control Board (“PCB”) Rule 101.516 and Hearing

Officer schedule, as amended, hereby responds to Respondent Illinois Environmental Protection

Agency’s (“Illinois EPA”) Motion forSummary Judgment (“Motion”). In support ofthis Response,

Sutter states:

Introduction

As a general matter, Sutter does not object to the Illinois EPA’ s recitation ofthe standard of

review (Section I ofIllinois EPA Motion), the burden ofproof (Section II), or the issue in this case

to theextentthat it identifies the issue as being an exercise indeterniiningthe meaning of“establish”

as used in Section 22.14 ofthe Illinois Environmental Protection Act (“Act”)(Section III). The facts

too, as noted by the Illinois EPA, are “largely undisputed” (Illinois EPA Mot. p. 3).

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Notwithstanding a lack of genuine disagreement on the legal and factual framework ofthe

appeal, Sutter does strenuously object to Illinois EPA’ s interpretation ofthe term “establish” as used

in Section 22.14 ofthe Act and its application to the facts ofthis case. Indeed, nothing in the Illinois

EPA’s arguments supports its determination that a facility is “established” for purposes of Section

22.14 upon submittal of a permit application.

The Illinois EPA raises two general arguments in its Motion. First, it contends that its

interpretation of “establish” is supported by the “plain language” of Section 22.14. This plain

language is divined by dictionary definitions and references to three cases: Medical Disposal

Services, Inc. v. Illinois EPA, 286 Ill.App.3d 562,222 I1l.Dec.225 (lstDist. 1997); Village ofVilla

Park v. Wanderer’s Rest Cemetery Co., 316 Ill. 226, 147 N.E. 140

(1925);

and Moseid v.

McDonough, 103 Ill.App.3d 23, 243 N.E.2d 394 (1st Dist. 1968). Interestingly, (which pointedly

highlights the nature ofthe task before the PCB in this case) Sutter relies upon the same dictionary

definitions and the latter two cases for support of its interpretation of “establish.” Second, the

Illinois EPA contends that its interpretation of Section 22.14 is consistent with the other language

used in Section 22.14 as well as the Act in general.

As specifically identified below, the Illinois EPA’s arguments do not support its

interpretation of“establish” nor do they justify the denial ofSutter’s permit application. As preface

to Sutter’s specific argumentsbelow, the Illinois

s arguments are fundamentally flawed. In its

Motion, the Illinois EPA argues that “establish” under Section 22.14 is synonymous with

permit

issuance.

First, however, the PCB should note that the express basis ofthe Illinois EPA’s denial

point at issue was not that the Sutter facility was not “established” at the time of

permit issuance,

but rather that it was not established at the time of

permit application submittal,

Accordingly, the

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Illinois EPA is clearly arguing for a an interpretation ofSection 22.14 that is not even at issue in this

appeal. Second, consistent with its position that permit issuance is the key event, the Illinois EPA’s

argumentsare focused on the notion thatall preliminarystepsto permit issuance (suchas local-siting

approval) are merely pre-conditions to permit issuance and otherwise without significance on the

issue ofinterpreting “establishment.” The problemwith this line ofargument is thatthe Illinois EPA

fails to provide support forthe underlying foundation ofthe argument that “establishment” is indeed

synonymouswith

permit issuance,

but it is definedby consideration ofa broader range ofsignificant

events. Sutter believes strongly, as supported by the arguments below and its Motion for Summary

Judgment that “establishment” is not synonymous with

permit issuance.

Accordingly, the Illinois

EPA’s arguments do not support its interpretation of “establish” as used in Section 22.14, and as

such the PCB must reverse the Illinois EPA’s permit denial point on this issue.

II.

Illinois EPA’s Motion to File Instanter

Sutter has no objection to the Illinois EPA’s “Motion for Leave to File InstanterMotion for

Summary Judgment.”

III.

Argument/Response

Background

As the PCB recalls, this case involves the interpretation of Section 22.14 ofthe Act. That

section generally prohibits a solid waste transfer station within 1000 feet ofa dwelling. However,

Section 22.14(b) provides exceptions to this general prohibition. The exception at issue here allows

a facility within the 1000 foot setback if the facility was established prior to the dwelling. Section

22.1 4(b)(iii) specifically provides that the general prohibition of Section 22.14 does not prohibit:

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(iii) any such transfer station facilitywhich becomesnonconforming

due to a change in zoning or the establishment of a dwelling which

occurs after the establishment ofthe facility...

(415 ILCS 5/22.14(b)(iii).

In this case, the facts are undisputed. Sutter applied for and obtained local siting approval by

unanimous vote ofthe Effingham County Board. However, at some point after Effingham County

approval, a mobile home was moved onto property across the street and within 1000 feet of the

Sutter facility. Sutter then applied for a permit from the Illinois EPA to operate the facility. The

Illinois EPA denied the permit. The Illinois EPA’s denial point at issue by the parties Motions for

Summary Judgment is:

Issuance of a permit for this facility would violate Section 22.14 of

the Act because the proposed garbage transfer station would be

located closer than 1000 feet from a dwelling that was so located

before the application was submitted to the Illinois EPA.

(R.

1-2).

Illinois EPA’s “Plain Language”Argument

In its Motion, the Illinois EPA first argues that the plain and ordinary meaning ofthe term

“establishment” as used in Section 22.14 supports its determination that the Sutter facility was

established as ofthe date ofpermit application, but in any event not at the time of siting approval

or some other event. The Illinois EPA cites to a number ofdefinitions ofthe term “establish,” but

then without analysis of those definitions merely concludes that the Sutter facility was not

established at the time of the Illinois EPA’s final decision or permit application submittal.

A number of problems exist with this the Illinois EPA’s argument. First, the dictionary

definitions referenced, but not discussed, include suchrneaningsas “to settle in a secure position or

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condition;” “to cause to be recognized and accepted;” “to institute permanently by enactment or

agreement;” “to put on a firm basis;” or “to put into a favorable position” (Motion p. 7). There is

nothing about a permit application submittal that satisfiesthese definitions. A permit submittal does

not

recognize

accept,put intoforce, institute permanentlyby enactment or agreement,

put into

afavorable position.

It is merely a submission ofan application. It should be clear that the mere

submittal ofa permit application does not carry the same significance ofsiting approval by a local

government. All ofthe cited dictionary definitions can apply to describe and define the actions of

the Effingham County Board in hearing, considering, debating and voting to approve local siting

approval for the Sutter facility. Certainly Effingham County’s action on siting

recognized

and

accepted

the location of the Sutter facility, and at a minimum gave that facility a

fIrm basis

and

favorable position.

Also, it should be beyond debate that the unanimous vote of the Effingham

County Board was a

permanent

(considering that action has now been upheld by the PCB and the

Appellate Court) and official

enactment

ofthat Board. Accordingly, these definitions support Sutters

position that its facility was “established” at a minimum upon Effingham County siting approval.

Second, and as touchedupon above, the Illinois EPA appears to be shifting the expressfocus

of the denial point at issue. According to the specific denial point at issue, Sutter’s permit

application was deniedbecausethe Sutter facilitywas not “established” before its permit application

was submitted to the Illinois EPA. However, the Illinois EPA is now arguing that the time of

“establishment” is not permit application submittal but rather final permit 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

thefinal decision was issued,

and in fact was in place before the permit

application was ever submitted. (Motion p. 8)). Whether the Sutter facility was established at the

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time of“final decision” is not the issue before the PCB. The issue before the PCB, as framed by the

denial letter, is whether the Sutter facility was established by the event of permit application

submittal.

In light of the Illinois EPA’s arguments that focus on permit issuance as being

synonymous with “establishment,” it must necessarily be true that permit application submittal (the

basis of the denial) is not a valid denial point.

After arguing the “plain and ordinary” meaning of “establishment” as noted above, the

Illinois EPA makes what is essentially the crux oftheir argument which is that local siting approval

cannot equate with “establishment” because it is only a preliminary step in the permitting of a

facility:

Though the proposedtransfer station was the subject ofa successful request forlocal

siting approval, that prerequisite step to filing a permit application cannot be

considered tantamount to the establishment of the proposed transfer station.

Approval of local siting does not demonstrate that a proposed facility has been

established, because approval of local siting approval is nothing more than a

preliminary step that must be taken in order for the proposed facility to become

established.

(Motion p. 8).

First, and fundamentally, “establishment” is not synonymous with

permit issuance.

Nowhere in the

Act is “establishment” defined orequated with permit issuance. Certainly, nothingin Section 22.14

(or any other part ofthe Act) would lead to the conclusionthat those two terms meanthe same thing.

Ifthe legislature had wanted Section 22.14 to provide an exception forfacilities that were

permitted

rather than “established” before the arrival of a dwelling within 1000 feet of the facility the

legislature was fully capable of doing so. Permitting is a central concept to the Act and the

legislature certainly knew the significance ofthat term. Nevertheless, the legislature chose not to

use it. It chose to provide an exception based not upon

permit issuance,

but upon something else,

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namely “establishment.” Any construction ofSection 22.14 that interprets “establishment”aspermit

issuance is simply unsupportable. Second, regardless of whether the Illinois EPA is correct or not

that local siting approval is not a dispositive event for

permit issuance,

such an argument says

nothing about the meaning of“establishment.”

Notwithstanding these preliminary issues, the Illinois EPA cites to the Medical Disposal

Services, Inc. v. Illinois EPA, 286 Ill.App.3d

562,

222 Ill.Dec. 225 (1st. Dist. 1997) case for the

proposition that the approval oflocal siting only gives a successful applicant a right to apply for a

permit, and that local siting approval does not vest any property rights with the successful applicant.

The relevance of Medical Disposal Servicesto the issue before the PCB in this case is marginal at

best. First, the Medical Disposal Services case is not a case interpreting Section 22.14 ofthe Act,

nor does it define or discuss what actions might serve to “establish” a facility. The issue before the

Court in Medical Disposal Services was whether local siting approval was applicantspecific (which

the Court held it was). Second, the dicta in the Medical Disposal Services case that local siting

approval is only a condition that is required before a permit can issue does not resolve the issue of

“establishment” as the Illinois EPA contends. While Medical Disposal Services identifies local

siting approval as a condition to

permit issuance,

it does not necessarily follow that local siting

approval is a condition to “establishment.” As noted above, no authority has been referenced that

permit issuance

and “establishment” are synonymous. Third, it is clear from the Medical Disposal

Services case that local siting approval is much, much more than simply a condition to permit

issuance as the Illinois EPA contends. It is in and of itself a significant event that carries its own

vital importance. The Court in Medical Disposal Services noted this event as “the most critical

stage” Medical Disposal Services, 286 Ill.App.3d at

568.

Siting approval, made by an elected body

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aftera public hearing and consideration ofevidence and public comment clearly has set the specific

location and parameters of a facility and has brought the facility to the public for critical scrutiny.

In light of these facts, local siting approval is an event of such significance that it should rightly

amount to “establishment.” Fourth, the Illinois EPA’s reference to other dicta in Medical Disposal

Servicesthat siting approval is not a propertyright is also not dispositive ofwhether siting approval,

permit application submittal, or permit issuance constitutes “establishment.” There is nothing in

Section 22.14 or any other section ofthe Act that would equate a property right to “establishment.”

On this point, the Illinois EPA’s own argument that

permit issuance

is synonymous with

“establishment” (notwithstanding the argument that the denial was not based upon permit issuance

but rather on permit submittal) is flawed because the Medical Disposal Services case notes even

permits are only privileges and do not vest any rights. Medical Disposal Services, 286 I11.App.3d

569

(“even permits are only privileges from which no vested property rights attach”).

In light ofthese arguments, the Medical Disposal Services case does not support the Illinois

EPA’s argument that a facility is not “established” until permit submittal or permit issuance. The

PCB must reverse the Illinois EPA’s denial point on this issue.

After the discussion of the Medical Disposal Services case, the Illinois EPA goes on to

discuss two cases cited by Sutter: Village of Villa Park v. Wanderer’s Rest Cemetery Co. and

Moseid v. McDonough. Contrary to the arguments ofthe Illinois EPA, neither ofthese cases support

its position in this case.

The Illinois EPA cites the Villa Park case for the proposition that it is

permit issuance

that

defines “establishment.” The crux of the Illinois EPA’s argument is that:

The closest analogy fact-wise that can be drawn between the Villa

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case and the present situation is that the Petitioners Suffer here

cannottake the types ofsteps relied upon by the Villa Parkcourt until

after a permit to develop the transfer station is issued. Until that

happens, no establishment of the transfer station could ever take

place.

(IEPAMSJp. 10).

This analogy, and the rule that is attempted to be crafted from it is not supported by the facts ofthe

Villa Park case. First, the steps that the Villa Park court relied upon to find an established cemetery

were not dependant upon any other approvals or conditions set by third parties. The events that the

Court found dispositive were those taken independent of any government approval or

acknowledgment such as the “dedication” of the property for a cemetery by private citizens; the

placement ofa sign on the property; and the expenditure of funds to further the project. As noted

in Sutter’s Motion for Summary Judgment, these are open and notorious acts made in public

whereby the cemetery promoters staked their claim. The Courts decision was not dependant upon

any governmental recognition similar to permit issuance. Second, and here again, by arguing that

only by

permit issuance

is a facility established, the Illinois EPA is going far beyond the express

denial point which was tied not to permit issuance but permit application submittal.

The Illinois EPA next discusses the Moseid case and uses it as support for two arguments.

First, it argues that the ordinance establishing the library at issue in the Moseid case “must have

included language that stated the ordinance was itself establishing the library” (Motion p. 11).

Because the Effingham County Board’s resolution approving siting ofthe Suffer facility does not

specifically usethe word “establish” the Illinois EPA contendsthe Sutter facility was not established

(Motion p. 11). A number of problems arise with this argument. First, as acknowledged by the

Illinois EPA, there is no indication in the opinion what language was used in the ordinance at issue

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in the Moseid case. Accordingly, the foundation ofthe Illinois EPA’s argument that the ordinance

“must have” included the word establish is pure speculation. Second, the Illinois EPA’s arguments

exalts semantics over substance. It is not the specific wording ofthe resolution that is significant.

It is the undisputed effect of that resolution in approving local siting that is of significance.

Regardless ofwhether the resolution usedthe term “establish,” there is no dispute that the resolution

ofthe Effingham County Board granted local siting approval to the Sutter facility. In turn, it is that

event, not the wording of the resolution memorializing that event, that is the event triggering

“establishment.” Third, the Illinois EPA simply ignores the language ofthe case which expressly

condemns a “too narrow” interpretation ofthe term “establish” and holds that a facility (in Moseid

a library) is established by the local government’s formal approval and acknowledgment, on paper

only, ofthe facility.

The Illinois EPA’ s second argument is that the enactment of the library ordinance was the

sole official declaration necessary to establish the facility (Motionp. 11). The Illinois EPA goes on

to contend that this is in contrast to the Suffer case because the sole official declaration necessary

before the Sutter facility can be developed and operated is the permit decision, not local siting

approval (Motion p. 11). Therefore, the Sutter facility is not established by the approval oflocal

siting, but only by Illinois EPA permit issuance. This argument is flawed. First, here again the

Illinois EPA

is arguing

that it is

permit issuance

that establishes a facility (“Since the development

permit has not been issued, the proposed transfer station has not yet been established” (Motion p.

11).) As noted, this was not the express denial point relied upon by the Illinois EPA. The Illinois

EPA denied the Sutter application on the grounds that the Sutter facilitywas not established on the

date the permit application was submitted. Second, we do not know from the Moseid case if the

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Illinois EPA’ s factual assertion that it was the ordinance that was the sole official declaration

establishing the facility is factually correct. It would not be unreasonable to speculate, which is just

what the Illinois EPA is doing, that a myriad of building and construction permits might also be

necessary in order to actually develop and operate the library. Ifthat was the case, the Moseid case

would be an even closer analogy to the Sutter matter in that an official declaration or enactment of

a local government body was sufficient to establish a facility even if additional permits or approvals

might be necessary to bring the facility into development and operation. Third, the Illinois EPA

assumesthat “establishment” as usedin Section 22.14 ofthe Act is synonymous to developmentand

operation. As has been noted, that is just not the case. If the legislature wanted to exempt only

developed, operational, orpermitted facilities from the dwelling setbackat issue it would have used

that specific language. It did not.

Illinois EPA’s “Consistency” Argument

The Illinois EPA also argues that only permit issuance can establish a facilityunder Section

22.14 is consistent with other portions of the Act (Motion p. 12). The Illinois EPA references

Section 39.2 of the Act relating to the siting authority granted to local government bodies and

attempts two arguments. The first argument, confusing as it is, is based upon a faulty hypothetical.

The hypothetical proposed by the Illinois EPA sets a scenario where a dwelling exists and is

occupied prior to the submittal of an application for local siting approval. The local government

goes on to approve siting notwithstanding the existence ofthis dwelling. Ifthe local government

siting approval is equivalent to the “establishment” ofthe facility, the Illinois EPA appears to argue

that such an approval creates a violation of Section 22.14 in that you nowhave an established facility

(via local siting approval) and also an established dwelling within the setback..

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A number of significant problems exist with the hypothetical and argument. First, as a

factual matter it does not represent the facts of this case. As the PCB knows, it is undisputed that

no dwelling was established at the time Effingham County approved local siting for the Sutter

facility. Second, Section 22.14 does not provide rights or significance to the simple act of

“establishment” in and ofitself. Section 22.14 assigns significance to “establishment” based upon

who was “established” first: the dwelling or the facility. Ifa dwelling was established prior to local

government approval (as proposed in the Illinois EPA’ s hypothetical), the subsequent action ofthe

local government in “establishing” the facilitywould not in any way impede the Illinois EPA from

denying permits under Section 22.14. Third, Illinois EPA contends that a local government would

have no choice but to approve local siting notwithstanding the existence of a pre-existing dwelling

within the 1000 foot setback, thus creating the hypothetical violation (and internal tension) of

Section 22.14. However, this is not the case. Pursuant to Section 39.2 ofthe Act local governments

can review a sweeping range of issues in considering a siting application. This range clearly

envisions issue’srelated to setbacks and the proximity-ofdwellings orresidences nearbythe proposed-

facility. (See 39.2(a)(ii) related to location such that the public health and safety is protected;

39.2(a)(iii) related to incompatibility ofthe facilitywith respectto surroundingproperty; 39.2(a)(v)

related to location to minimize danger to surrounding area; and, 3 9.2(a)(vi) related to traffic flows

in the area.) In light ofthese issues, the Illinois EPA’s hypothetical, and the argument it is designed

to support, is not applicable nor dispositive of any issue in this case.

The Illinois EPA raises a second, and perhaps related argument, based upon the differences

between required notice provisions in Section 39.2 and the 1000 setback requirements in Section

22.14. The argument is this:

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Since the local unit ofgovernment cannot enforce Section 22.14, and

since the local 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 able to deny a

permit on that basis since the facility would already be established.

(Motion p. 12-13.)

This argument lacks merit on a number ofbasis. First, as noted above, a local government can take

into consideration the setbackissues ofSection 22.14 and make it the basis ofa denial. Accordingly,

a county board is not “helpless” if it chose to deny siting on the basis of a perceived violation of

22.14. Second, the local siting approval process does require notice to those who may fall within

the 1000 foot setback. This notice is effectuated by public notice in newspapers and notice to

government representatives (in addition to notice to those within 250 feet ofthe facility). Most

significantly, however, is that the purpose ofSection 22.14 is not frustrated by considering a facility

to be established at time of siting approval (if not earlier). The purpose of Section 22.14 is to give

rights to the first entity established. If, as posed in the hypothetical, a legitimate dwelling within the

1000 foot setback exists prior to local government siting approval, the establishment ofthe facility

by the local government does not impact the Illinois EPA’s application of Section 22.14 via the

permitting process. That is so because it is a question of who was established first. Under no

reading of22.14, norunder any argument by Sutter, does the mere establishment ofa facilitytrump

a pre-existing dwelling. That is simply not the case, nor is such a construction advocated by Suffer.

It is a question of who has been “established” first. If a dwelling is established prior to the

establishment of a facility, its pre-establishment controls the review under section 22.14 and the

facility is barred. The fact that a local government, by approving a siting application, has

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“established” a facility has no bearing on the Illinois EPA’s authority under 22.14. The Illinois

EPA’s authority remains fully intact to identify, as expressly required by section 22.14, who was

“established” first, the dwelling or the facility.

IV.

Conclusion

WHEREFORE Petitioners Suffer Sanitation 

and

LaVonne Haker respectfully requestthat 

this

Board deny Respondent Illinois

EPA’s Motion for 

Summary Judgment, grant Suffer’s Motion for

Summary Judgment, and find that the Illinois EPA’s denial of Sutter’s permit application on the

basis of a violation of Section 22.14 ofthe Act be reversed.

Respectfully submitted,

SUTTER SANITATION, INC., and

LAVONNE HAKER, Petitioners

By:_________________________

One Of TheT~Attoi~ieys

Sorling, Northrup, 

Hanna

Cullen & Cochran, Ltd.

Charles J. Northrup, of Counsel

Suite 800 Illinois Building

P.O. Box 5131

Springfield, IL 62705

Telephone: 217.544.1144

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PROOF OF SERVICE

The undersigned hereby certifies that an original and ten copies of the foregoing 

document

was served by 

placing same in a sealed envelope addressed:

Dorothy M Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Ii. 60601

and

copies to:

John J. Kim, Attorney

Renee Cipriano, Director

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 N. Grand Avenue, East

Springfield, Il. 62794-9276

Ms. Carol Sudman

Hearing Office

Illinois Pollution Control Board

1021 North Grand Ave. East

Post Office Box 19276

Springfield, IL 62794-9274

and

by depositing same in the United States mail in Springfield, Illinois, on the 

~‘3’

day of August,

2004, with postage fully prepaid.

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